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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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.R., 2021 ONCA 460 DATE: 20210622 DOCKET: M52556 (C69272) Brown J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent (Responding Party) and D.R. Appellant (Applicant) Laurence Cohen, for the applicant Mabel Lai, for the responding party Heard: June 15, 2021 by video conference ENDORSEMENT OVERVIEW [1] The appellant, D.R. [1] , applies for release pending the determination of her appeal from convictions on: three counts of sexual assault, uttering a death threat regarding the complainant’s father, assault, and assault with a weapon ( R. v. R. (D.), 2020 ONSC 5578). [2] The applicant’s two-day trial took place in the Superior Court of Justice before a judge alone. The only witnesses were the applicant and the complainant. [3] On March 11, 2021, the sentencing judge imposed the following sentence: (i) 4.5 years for the sexual assaults that occurred after the complainant moved in with the applicant in December 2017; (ii) 6 months concurrent on the May 2018 assault, assault with a weapon, and uttering a death threat; and (iii) 3 years concurrent on the two counts of sexual assault involving events in September 2017. After giving credit for pre-sentence custody, the resulting global sentence to serve was 4 years and 174 days: R. v. R. (D.), 2021 ONSC 1808. BACKGROUND [4] The applicant and complainant met at college in September 2017. At that time, the complainant was 16 years old and the applicant was 18 years old. [5] Twice that September the complainant and applicant went for walks near the campus during which the applicant penetrated the complainant. The relationship continued and from late December 2017 until late May 2018 the complainant lived with the applicant in the applicant’s mother’s home. The applicant introduced the complainant to marijuana. In April and May 2018, on approximately 15 occasions, the complainant fell asleep after smoking marijuana only to awake and find the applicant having sexual intercourse with her. Several times the complainant awoke to find the applicant inspecting her vagina through a tube from a vaping device. [6] At some point, the applicant sent the complainant text messages in which she threatened to stab the complainant’s father with a screwdriver. [7] Ten recordings made by the complainant in April and May 2018 were introduced at trial. They recorded the applicant screaming at the complainant, and sometimes at the complainant and the applicant’s mother. [8] In May 2018, while the complainant was out on a walk, the applicant met up with her, physically pulled on the complainant to accompany her and, when the complainant said she would call the police, the applicant threw the complainant’s cell phone at her. [9] The applicant appeals against conviction and sentence. As described in the notice of appeal, the main grounds concern the trial judge’s assessment of the credibility of the applicant and complainant. [2] The notice of appeal asserts that the trial judge erred in her credibility assessment by: (i) Placing undue emphasis on a series of recordings the complainant made of conversations with the applicant, which demonstrated fits of rage by the applicant; (ii) Failing to engage in a specific analysis of the sexual assault allegations, especially those concerning the two September 2017 sexual assaults, other than examining the applicant’s general abusive behaviour; (iii) Rejecting the applicant’s credibility notwithstanding the lack of challenge during cross-examination to the applicant’s evidence regarding the sexual assaults; and (iv) Failing to use the complainant’s return to the applicant’s home after the sexual assaults and the complainant’s report to the police as evidence relevant to the complainant’s credibility. [10] At the hearing, applicant’s counsel focused on the lack of analysis by the trial judge in her reasons in regard to the sexual assault counts. He submitted that the reasons disclose no facts upon which the trial judge made her assessment of the applicant’s credibility, which amounts to a misapprehension by the trial judge of the evidence on those counts. Counsel further submitted that while the complainant’s continued relationship with the applicant after the assaults was not determinative of her credibility, it was a factor that the trial judge should have considered in her assessment of the complainant’s credibility. Her failure to do so constitutes reversible error. [11] The respondent submits that the applicant has failed to demonstrate that her appeal is not frivolous: Criminal Code , s. 679(3)(a). The respondent acknowledges that if the court finds the applicant has discharged her burden on that branch of the test, the applicant’s release is otherwise appropriate on the bail conditions in the draft order, which substantially mirror those in effect at the time of the trial. [12] Since the transcripts of the trial are not yet available, on this application the applicant relies upon the written reasons of the trial judge. HAS THE APPLICANT ESTABLISHED THAT HER APPEAL IS NOT FRIVOLOUS? [13] The bar for establishing that an appeal is not frivolous is “very low”: R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. As described by Watt J.A. in R. v. Manasseri , 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: “An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.” The purpose of the “not frivolous” threshold is to require the applicant to “demonstrate that the appeal has some merit. If this were not so, the appellate process could be abused by those intent on forestalling the execution of a custodial sentence”: R. v. T.S.D ., 2020 ONCA 773, at para. 24. [14] Credibility determinations by a trial judge attract a high degree of deference; the sufficiency of a trial judge’s reasons must be assessed in light of that deference: R. v. Vuradin , 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11; R. v. G.F. , 2021 SCC 20, at para. 81. However, as stated in R. v. Dinardo , 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26: Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich , [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23).  As this Court noted in R. v. Gagnon , [2006] 1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know “why the trial judge is left with no reasonable doubt”. [15] The trial judge’s assessment of the applicant’s credibility proceeded in the following fashion: the trial judge rejected the applicant’s explanation of texts she sent to the complainant’s mother and the threats about her father as far-fetched and not making sense; she then concluded that the audio recordings confirmed the applicant’s animus against the complainant’s family; she found that the applicant’s explanation about restraining the complainant in May 2018 from leaving did not make sense; the applicant’s denial of ever “dosing” the complainant with marijuana was contradicted by text messages between the applicant and a friend; and there were inconsistencies between the applicant’s evidence at trial and her statement to the police of the effect of steroids on the applicant’s behaviour. That led the trial judge to conclude, at para. 84: For all of these reasons, I did not find [the applicant] to be a credible witness. Her evidence was incredible, defied logic and common sense and is contradicted by trustworthy evidence. I do not believe her evidence. Given my findings that [the applicant] willingly mislead the court, her evidence does not raise a reasonable doubt. [16] The trial judge then considered whether the Crown had met its burden on each count, in accordance with the principles in R. v. W.(D.) , [1991] 1 S.C.R. 742. The trial judge started with the count alleging the applicant uttered a death threat to the complainant on May 24, 2018 and acquitted. But the trial judge then convicted on the count concerning the uttering a death threat in respect of the complainant’s father. [17] The trial judge next found that the complainant was a credible witness and did not view the complainant’s continuation in the relationship after the alleged offences as detracting from her credibility. She held that the audio recordings demonstrated how the applicant abused and manipulated the complainant and accepted the complainant’s explanation about why she stayed in the relationship. [18] Accordingly, whatever relevance the complainant’s continuation of the relationship after the sexual assaults might possess in light of the decision of the Supreme Court in R. v. A.R.J.D. , 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2, the trial judge in fact examined the evidence on that issue, accepted the complainant’s explanation, and did not regard the conduct as detracting from the complainant’s credibility. On the face of her reasons, the trial judge did not commit the error now alleged by the applicant. [19] The trial judge continued her examination of the evidence on the counts by accepting the complainant’s version of the events of May 24, 2018 and convicted the applicant on the assault and assault with weapon counts. [20] The trial judge concluded her reasons by dealing with the three counts of sexual assault. In respect of the count concerning the sexual assaults while the complainant lived with the applicant, the trial judge wrote at paras. 109-112: Count 7 alleges that during the time [the complainant] and [the applicant] were living together, [the complainant] would wake up to [the applicant] sexually assaulting her, sometimes with a vaping tube. I accept [the complainant’s] testimony that [the applicant] introduced her to marijuana in an effort to calm her down and lessen the conflict between them. Her evidence on this point is corroborated by the text messages sent by [the applicant] to her friend. The defence contends that there is no corroboration with respect to these sexual assaults. I disagree. The audio recordings made leading up to this timeframe demonstrate [the applicant’s] pattern of obsessive and abusive behaviour towards [the complainant]. The level of rage demonstrated by these audio recorded tirades is difficult to describe in words. It is jarring, shocking, and horrifying. Not only is the level of rage displayed by the volume with which [the applicant] yells, but the words screamed demonstrate how [the applicant] tried to manipulate [the complainant]. For example, [the applicant] turned a situation where [the complainant] is clearly concerned about the steroids [the applicant] was using into a situation where [the complainant] is led to believe that she has done something wrong in hiding the drugs. I am cognizant of the fact that there is no mention of the sexual assaults on the audio recordings. It was not [the complainant’s] evidence that she recorded every argument with [the applicant]. I accept her evidence that arguments that occurred immediately after she was awoken would have been difficult, if not impossible, to surreptitiously record. [The complainant] testified that she made the recordings to remind herself what [the applicant] was capable of, not to create corroborative evidence to be used in a future court proceeding. Although there is no mention of the sexual assaults on the audio recordings, I find that they corroborate the overall way that [the applicant] treated [the complainant] throughout their relationship. They demonstrate [the applicant’s] hatred of women and her need to dominate, manipulate, demean and intimidate [the complainant]. This is consistent with [the applicant] not respecting [the complainant’s] physical and emotional integrity including sexually assaulting her. I therefore find [the applicant] guilty of Count 7, that being that she sexually assaulted [the complainant] while she slept during the months of December 2017 through May 2018. [21] The trial judge then turned to the two counts regarding the sexual assaults that took place when the complainant and applicant went on walks in September 2017 stating, at paras. 113-114: Counts 3 and 4 in the indictment allege that [the applicant] sexually assaulted [the complainant] in the woods near campus on two occasions in September 2017. [The applicant] categorically denies this. For reasons given I do not accept [the applicant’s] evidence, nor does it raise a reasonable doubt. Having found [the complainant] to be an honest, credible and forthright witness I accept her evidence that these sexual assaults occurred as she described them. I do not find her less worthy of belief because she failed to report these assaults immediately and continued to see [the applicant]. Therefore, I find [the applicant] guilty of Counts 3 and 4. Specifically, I find that she sexually assaulted [the complainant] on September 17, 2017 and September 24, 2017. [22] Contrary to the applicant’s submissions, the trial judge in fact engaged in a specific analysis of the sexual assault counts. On the face of her reasons, she did not commit the error the applicant alleges. [23] Since the applicant has not filed the transcript of her evidence at trial, her submission that the trial judge erred by rejecting the applicant’s credibility notwithstanding the lack of challenge during cross-examination to the applicant’s evidence regarding the sexual assaults cannot be assessed in the concrete context of what took place at trial. However, I would make two observations. [24] First, unlike the circumstances in R. v. Paris (2000), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22, leave to appeal refused, [2001] S.C.C.A. No. 124, upon which the applicant relies, here the complainant testified that the applicant had sexually assaulted her before the applicant took the stand to give her evidence. [25] Second, where, as in this case, the accused is tried on a multi-count indictment, the presumptive rule that evidence on one count of an indictment may not be used to prove the guilt of the accused on another count where the counts do not arise out of the same events does not apply to the assessment of witness credibility: R. v. T.C. , 2019 ONCA 898, 383 C.C.C. (3d) 341, at para. 45. As stated by the Supreme Court in R. v. P.E.C. , 2005 SCC 19, [2005] 1 S.C.R. 290, at para. 1: The verdict on each count of an indictment must, of course, be based on evidence admissible with respect to that count; in assessing the credibility of each witness, including the accused, the trial judge was entitled, however, to consider the totality of the evidence given by that witness. [26] Consequently, it is difficult to see, on the record before me, how the trial judge erred by applying her extensive reasons on why she did not regard the applicant as a credible witness following her review of several of the counts to the assessment of the applicant’s credibility that informed her analysis of the sexual assault counts. [27] In sum, while the “not frivolous” criterion sets a very low threshold, given the detailed reasons of the trial judge on the assessment of credibility, I am not persuaded that the applicant’s credibility-based grounds of appeal exceed that very low threshold. DISPOSITION [28] For the reasons set out above, I dismiss the applicant’s application for bail pending appeal. “David Brown J.A.” [1] At the time of the offences, the applicant identified as a man. Mid-trial, the applicant advised the trial judge that she now identifies as a woman, with she/her pronouns. [2] Although the notice of appeal also seeks leave to appeal from sentence on the basis that the sentence was unduly harsh and unfit given the applicant’s age and lack of a criminal record, the applicant did not make submissions about this ground on the application for bail pending appeal.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Barton, 2021 ONCA 451 DATE: 20210623 DOCKET: C64896 Feldman, Miller and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Zachary Barton Appellant Nathan Gorham and Breana Vandebeek, for the appellant Robert Hubbard and Katie Doherty, for the respondent Heard: June 17, 2021 by video conference On appeal from the convictions entered on February 16, 2017 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION OVERVIEW [1] Zachary Barton was convicted by a jury of firearms-related offences. During a warrantless search, police found a semi-automatic handgun inside a planter located in a common hallway outside Mr. Barton’s apartment. The next day, while executing a search warrant, police found ammunition for the firearm and a bullet-proof vest inside Mr. Barton’s apartment. [2] Mr. Barton appeals his convictions. He contends that the trial judge erred in concluding the semi-automatic handgun was not “obtained in a manner that infringed or denied” his rights under the Canadian Charter of Rights and Freedoms , given the causal, contextual, and temporal links he alleges between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search his apartment without a warrant. In the alternative, Mr. Barton argues that the trial judge erred in finding that he did not have a reasonable expectation of privacy in the hallway or the planter. ANALYSIS [3] We agree with Mr. Barton’s submission that the trial judge erred in concluding that the semi-automatic handgun was not “obtained in a manner” that infringed his rights or freedoms in the meaning of s. 24(2) of the Charter . Causal connection under s. 24(2) [4] Police officers discovered the semi-automatic handgun as a result of a step they had taken to gain unlawful warrantless entry into Mr. Barton’s apartment. Specifically, they moved the planter in the hallway to assist their efforts in breaching the front door. After moving the planter, the officers observed a string protruding from its cylinder. Inferring that the string might be attached to a key that would give them warrantless entry to Mr. Barton’s apartment, the officers pulled the string which led to a bag secreted in the planter. They opened the bag and discovered the semi-automatic handgun inside. [5] Since the semi-automatic handgun was discovered as a result of a step officers had taken to gain unlawful entry to the apartment, the discovery is causally connected to the Charter breach: see, R. v. Goldhart , [1996] 2 S.C.R. 463, at paras. 33-35. The trial judge erred in finding otherwise. Contextual and temporal connections under s. 24(2) [6] The trial judge also erred in drawing the conclusion on these facts that the contextual and temporal connections between the unlawful entry of the apartment and the discovery of the semi-automatic handgun were remote and attenuated. We see no basis in the evidence for these holdings. [7] We are therefore persuaded that the semi-automatic handgun was unconstitutionally obtained. As a result, reference to the discovery of the semi-automatic handgun must be excised from the information to obtain the search warrant. Related issues necessitating a new trial [8] Unfortunately, we are not in a position to determine whether this outcome undermines the grounds for the search warrant. Having decided that the semi-automatic handgun was not unconstitutionally obtained, the trial judge upheld the warrant without resolving the Crown’s fall-back position that, even without the unconstitutionally obtained evidence, the warrant could be upheld at “Step Six” of the test from R. v. Garofoli , [1990] 2 S.C.R. 1421 by disclosing and considering redacted information that was before the issuing judge. That issue cannot be resolved on the record before us. [9] A new trial is therefore required to determine whether excision of the discovery of the semi-automatic handgun from the warrant information will lead to a finding that the later warranted search was unconstitutional. This finding could, in turn, have an impact in deciding whether to exclude the semi-automatic handgun itself, since additional Charter breaches occurring during the same investigation can enhance the seriousness of each of the Charter breaches: see e.g., R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48. [10] Moreover, if the ammunition and vest are excluded at the retrial, this would not only resolve the possession charges with respect to those items, but could affect the strength of the evidence regarding Mr. Barton’s possession of the semi-automatic handgun. It is therefore prudent for us to refrain from attempting to determine the admissibility of the semi-automatic handgun, or to resolve any of the charges before us, based on incomplete information. [11] It is also unnecessary for us to determine whether Mr. Barton had a reasonable expectation of privacy in the hallway or in the planter that could support an additional s. 8 Charter violation. That issue can be determined by the trial judge during the retrial. CONCLUSION [12] Accordingly, we set aside Mr. Barton’s convictions and order a retrial on all charges. “K. Feldman J.A.” “B.W. Miller J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Bayford v. Boese, 2021 ONCA 442 DATE: 20210622 DOCKET: C67599 Doherty, Nordheimer and Harvison Young JJ.A. BETWEEN Brenda Bayford Plaintiff (Respondent) and Brian Boese , Kaitlyn Boese, Alexander Boese, Erin McTeer and Michelle McTeer Defendants ( Appellant ) Earl A. Cherniak, Q.C., Ian M. Hull and Doreen Lok Yin So, for the appellant Taayo Simmonds, for the respondent Heard: December 16, 2020 by video conference On appeal from the judgment of Justice Sylvia Corthorn of the Superior Court of Justice, dated October 1, 2019. Harvison Young J.A.: [1] The appellant, Brian Boese, appeals from the trial judge’s judgment declaring that his brother Bruce’s will had been validly executed in accordance with s. 4(1) of the Succession Law Reform Act , R.S.O. 1990, c. S.26 (“SLRA”) . The only issue on this appeal is whether the trial judge erred in finding that the respondent Brenda Bayford had discharged her burden to prove the formal validity of the will, which she claimed to have found a number of weeks after his death in June 2015. [2] For the reasons that follow, I conclude that the appeal must be allowed on the grounds that the trial judge fell into palpable and overriding error. Having carefully reviewed the record before us and the submissions of counsel, I am of the view that the trial judge misunderstood the appellant’s position and, as a result, mistakenly considered the expert evidence to be irrelevant. This tainted her approach to the rest of the evidence. (1) Factual background [3] Bruce Boese was the owner of a farm. He never married and had no children. Brenda Bayford was a long-time friend of Bruce. She had assisted Bruce with the operation of the farm for the two decades before his death and described him as her best friend. Bruce executed a will in 1992, which named his parents as the sole beneficiaries of his estate. Because they had pre-deceased Bruce, Bruce’s estate would pass on an intestacy to Brian (50%) and the two daughters of his deceased sister Rhonda (50%) in the absence of a subsequent valid will. [4] In 2009, Bruce named Brenda as his attorney for property and personal care. In the summer of 2013, Ms. Fraser, the legal assistant of Bruce’s long-time lawyer, Timothy Colbert, prepared a draft will. There was no allegation that the substantive terms of the will reflected anything other than the instructions given by Bruce to Mr. Colbert. Ms. Fraser prepared the will based on instructions from Mr. Colbert, and it was sent to Bruce for review and comment. Bruce did not, however, attend at Mr. Colbert’s office to revise and/or execute that document before he died. There is no dispute that the 2013 draft will named Brenda as the sole trustee of the estate nor that it left her the farm property. [5] The 2013 will is dated August 15, 2013. The date is typed and appears on the third and final page of the document. It has the word “DRAFT” stamped on every page. Two copies were marked as exhibits at trial. One copy included only Bruce’s signature with no witness signatures (“Version 1”). “Version 2” included Bruce’s signature and those of the two witnesses, Ms. Gordon and Ms. Desarmia. [6] The central factual issue at trial was whether, as Brenda claimed, Version 2 had been signed and witnessed before Bruce’s death, or whether, as Brian claimed, the witnesses’ signatures had only been added after Bruce’s death and after Brenda discovered that Version 1 was not valid without the signatures of witnesses. [7] After Bruce’s death, Brenda searched for a will. She testified that she first found Version 1 of the 2013 will that had only Bruce’s signature, but not those of the witnesses. She took it to Mr. Colbert’s office the day after Bruce’s death and testified that she was surprised to find that Mr. Colbert’s office did not have a fully executed copy of the Will. On that occasion, Mr. Colbert’s assistant, Ms. Fraser, made a copy of the original of Version 1 and returned it to Brenda. Although there is no dispute that Ms. Fraser also advised Brenda on that occasion that, Version 1 was not valid without having been witnessed, other aspects of that conversation were disputed and will be discussed below. [8] Brenda’s evidence, accepted by the trial judge, was that a few weeks later, after having run into the one of the two witnesses who subsequently testified that they witnessed Bruce sign the will on August 15, 2013, she returned to Bruce’s house and searched again. This time, she testified, she found Version 2, signed and witnessed, on top of a kitchen cupboard, and not in the filing cabinet where she had found Version 1. [9] Brian’s position at trial was that Brenda, with the cooperation of Ms. Desarmia and Ms. Gordon, created Version 2 after Bruce’s death, and after she discovered that Version 1, though signed, was not valid. The fact that the original of Version 1 was never produced at trial supported this inference, as did the numerous inconsistencies in Brenda’s evidence at trial, all of which the trial judge resolved in her favour. In particular, her explanations as to what happened to the original Version 1 were inconsistent and lacking in credibility. [10] On appeal, Brian maintains his position that the reason that the original of Version 1 has never been produced is that this is the document that was “witnessed” at some point in the weeks following Bruce’s death. His central argument is that the trial judge misapprehended the content and significance of expert evidence which was that Bruce’s signatures on Version 1 and Version 2 were copies of one another, and that this misapprehension tainted the rest of her findings. The handwriting expert was called to compare the signatures between Version 1 and Version 2. At trial, neither original version was available, and so the trial judge, and the handwriting expert, had to rely on the photocopies. [11] Brenda has filed a motion for fresh evidence because the original of Version 2 has been found, having been produced by her former lawyers. As I will explain later in these reasons, I would not admit this fresh evidence as it is unlikely  to be conclusive of the issues on appeal, and it is not necessary to deal with the issues fairly. (2) The evidence [12] Because a number of inconsistencies in the evidence form part of the context for the assessment of the expert opinion, it will be useful to set them out along with the trial judge’s findings on those points. (a) The whereabouts of the original of Version 1 [13] No original of either Version 1 or Version 2 was produced at trial. Brenda testified at trial that after she found Version 2, she visited a law firm and left the originals of both Version 1 and Version 2 with the lawyer she retained. Under cross-examination, however, she was taken to her examination for discovery where she was asked what had become of the original of Version 1 and responded that she had misplaced it. When presented at trial with that response, she stated that she did not remember that series of questions, saying that “I know it went to the lawyer”, and “I may have said that, but everything went to my lawyer”. [14] The trial judge found that the answer at trial was simply a correction of her answer at discovery. She went on to observe that “the existence of the original of Version 1 does not affect the validity of Version 2” (at para. 61). This raises the concern that the trial judge was not alive to the appellant’s position that the reason there was no original of Version 1 is that it had become Version 2. She also held, at para. 63, that “[i]t was not incumbent upon Ms. Bayford to produce the original of Version 1” but rather upon Brian as it was significant to his theory of the case. (b) The evidence of Ms. Desarmia and Ms. Gordon [15] Ms. Desarmia and Ms. Gordon, friends of Brenda who also knew Bruce, both testified that they had gone to Bruce’s farm on August 15, 2013 for different reasons. Ms. Desarmia went to help Brenda work on a Halloween display that Brenda was planning for her house, and Ms. Gordon went to get tomatoes for hamburgers she was planning to cook that evening for a family celebration. [16] According to Ms. Desarmia, she saw Bruce at the farm, who expressed frustration about not being able to get his will done. Ms. Desarmia explained that he did not need to go to his lawyer’s office to get his will done, and she offered to assist by witnessing his signature on the will. Ms. Gordon testified that Bruce asked her if she would do him the favour of witnessing his will. Both witnesses testified that they witnessed Bruce sign the will and then each signed the will in the kitchen. [17] There were a number of discrepancies in the precise details of the two witnesses’ signature, for example, who was standing and who was sitting, whether they all used the same pen, and the order of signatures. The trial judge found those all to have been “in keeping with the frailty of human memory” (at para. 80) and “in keeping with the nature of the event” (at para. 84) and accepted their evidence. (c) The visit to the lawyer’s office the day after Bruce’s death [18] Brenda testified that the day after Bruce died, she took Version 1, which had Bruce’s signature in ink, to Mr. Colbert’s office where she spoke to his assistant, Ms. Fraser. Brenda stated that she was taken aback to discover that the office did not have the fully executed version of the will. The trial judge found that Ms. Fraser made a photocopy of Version 1 and returned the original Version 1 to Brenda. [19] Ms. Fraser testified at the trial. Although she testified that Brenda said, in response to Ms. Fraser’s explanation that because the will was not witnessed, it was not valid, “I saw him sign it”, Brenda denied having made that comment and the trial judge accepted Brenda’s evidence on the point. She also accepted that Brenda was “taken aback” that there was no original fully executed version of the will in light of the fact that the version Brenda had was stamped “DRAFT”. (d) Finding Version 2 [20] Brian called Mr. Leonard Stavenow, the proprietor of an equipment rental store in the area. Brenda had gone into the store about two weeks after Bruce’s death, and spoke to Mr. Stavenow about having lost her best friend. He testified that Brenda confided in him about the status of the will, and that she had said both “it was not signed” and that the “rough copy shows intent”. [21] At trial, Brenda stated that she did not recall telling Mr. Stavenow that the will was not signed. The trial judge noted that Brenda was taken to a transcript from her examination for discovery, where she had first said that she told Mr. Stavenow that the will was not signed and then had changed or corrected her answer to say that she told Mr. Stavenow that the will was not witnessed. The trial judge found no contradiction between Brenda’s evidence at trial and her evidence on examination for discovery on this point. The trial judge also found that although Mr. Stavenow presented as a straightforward person and was a credible witness, the conversation had lasted only three to five minutes and concluded that he had misunderstood what Brenda said to him. She concluded that he was not reliable as to what Brenda had said about Version 1. [22] Brenda testified that about three or more weeks after Bruce’s death, she had a chance meeting with her friend Ms. Desarmia and told her that she could only find Version 1. This meeting occurred after Brenda attended at Mr. Stavenow’s store. Ms. Desarmia, in response, informed her that she had in fact witnessed Bruce’s signing of the 2013 will. Brenda immediately returned to the farm and searched for an executed and witnessed will, which she ultimately found in an envelope on top of a cupboard in the kitchen (Version 2). Brenda testified that although she was not in the kitchen at the time that the will was executed on August 15, 2013, she was outside around the machine shed about 100 feet away. This raises the question as to why she would not have known at the time that Bruce had asked them to witness the will, particularly given Ms. Desarmia’s evidence that she remained at the farm for a few hours after that to assist Brenda with the Halloween display. [23] The trial judge accepted Brenda’s evidence on all points where it contradicted with that of other witnesses. She also accepted her evidence about the circumstances and place of her discovery of Version 2 of the will. (e) Ms. Lewis’ expert evidence [24] Against this backdrop, the evidence of the handwriting expert was important. Ms. Lewis was qualified to give expert evidence on the following 2 issues: (i) Whether Version 1 and Version 2 were forgeries, based on a comparison with other documents that contain signatures that were known to be Bruce’s; and (ii) Whether Bruce’s signature that appears in Version 1 and Version 2 are the same – with one signature being a copy of the other. [25] As explained above, because no originals were available at trial, Ms. Lewis had only the two photocopies to compare. With respect to the first question, Ms. Lewis testified that she was unable to draw a conclusion as to whether Bruce was the person who signed the two versions. With respect to the second question, however, she testified that “those two questioned documents … had copies of the same signature.” She explained that she had prepared a transparency chart of the two signatures from the two versions of the will and that she had positioned one signature on top of the other “to make it easy to look at them and see that the design is the same, the spacing is the same, the details are accurate.” [26] She explained that this was important because in forensic document examination, “one of the rules is that no one writes exactly the same way twice because handwriting doesn’t really allow us to precisely reproduce a signature in every detail just because the active writing always includes a little bit of natural variation in the writing.” She used the transparency overlay in this case because she wanted to show the two questioned signatures together because “they are the same signature, in my opinion.” Using the transparency was useful because one could see that each signature fit accurately over the other. She concluded that “[t]he two signatures were copied from one signature. I should say they are one signature.” (3) The law [27] Questions of fact are reviewable on a standard of palpable and overriding error, while questions of law are reviewable on a standard of correctness: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-10. [28] A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. Doherty J.A. noted, at p. 218, that most errors that constitute a misapprehension of evidence will not be regarded as involving a question of law. However, appellate intervention is warranted where the misapprehension of evidence is palpable and overriding, such that it is plain to see or obvious and goes to the very core of the outcome of the case: see Waxman v. Waxman , 2004 CanLII 39040 (Ont. C.A.), at paras. 296-97, leave to appeal refused, [2004] S.C.C.A. No. 291; Carmichael v. GlaxoSmithKline Inc. , 2020 ONCA 447, 151 O.R. (3d) 609, at para. 125, leave to appeal refused, [2020] S.C.C.A. No. 409. [29] The onus of proving the formal validity of a will lies on the propounder of the will, in this case, the respondent Brenda: see Vout v. Hay , [1995] 2 S.C.R. 876, at p. 887. [30] The requirements for the formal validity of a will are set out at s. 4(1) of the SLRA, as it was at the relevant time: (a) at its end [the will] is signed by the testator or by some other person in his or her presence and by his or her direction; (b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and (c) two or more of the attesting witnesses subscribe the will in the presence of the testator. [31] The purpose of the statutory requirement of two or more witnesses is to prevent fraud by ensuring that there is probative evidence to support a conclusion that the testator wanted to give effect to the contents of their will by signing it in the presence of others. The testator’s intent is thus irrelevant to the formal validity of a will. (4) Analysis [32] A review of the evidence of the handwriting expert, Ms. Lewis, along with the positions of the parties at trial as well as the other evidence and the trial judge’s reasons, indicates that the trial judge’s main error was misapprehending the import of the expert’s evidence. This bore on the central issue of the case, which was whether Bruce signed the will in 2013 before two attesting witnesses who were present at the time and who signed as witnesses before him. [33] First, the trial judge understated the content of Ms. Lewis’ opinion. Ms. Lewis did not say merely that it was “completely likely” that Bruce’s signature on Version 1 and Version 2 were copies of the same signature. She said, and demonstrated with the overlay of the two signatures, that they were copied from one signature. While Ms. Lewis stated that it is always preferable to have originals, these were “above average” copies and she was very satisfied that they were accurate. [34] The most serious problem with the trial judge’s reasons with respect to the expert’s evidence, however, is that it is not at all clear that she appreciated its significance. The expert’s evidence was that Bruce’s signatures were the same signature or copies of each other and that no one signs the exact same way twice. In essence, this meant that Bruce could not have signed both Version 1 and Version 2 separately with original signatures. While the expert did acknowledge in cross-examination that tracing could explain this, she also stated that she did not include this possibility in her report because “the evidence I observed didn’t lead me to believe it was a possibility”. [35] It was established in Brenda’s and Ms. Fraser’s evidence that the document Brenda brought to Mr. Colbert’s office, Version 1, had an ink signature. It was similarly accepted by the trial judge that Brenda had brought the original Version 1 will to Mr. Colbert’s office. One of the possible implications then, of the expert’s evidence, was that Bruce’s signature on Version 2 was a reproduced copy of Version 1. The original Version 1, which was unwitnessed when Brenda found it after Bruce’s death, could also have been converted into Version 2 by having “witnesses” sign it directly. [36] There is nothing in the trial judge’s reasons to indicate that she understood that if the signature on Version 2 was a copy from or the same as the signature on the unwitnessed Version 1, and not simply another original signature that Bruce had signed on a separate occasion in the presence of the two witnesses, there would be significant reason to doubt the validity of the Version 2 will. Put simply, it is not clear that the trial judge understood that the expert’s evidence supported an inference that the two witnesses signed Version 1 after Bruce’s death. She specifically observed that it was “in any event, difficult to understand how Ms. Lewis’ evidence is helpful to Brian.” Her statement that Brian’s description of Ms. Lewis’ evidence as “clear and equivocal” was an “overstatement” is inaccurate. The bottom line of Ms. Lewis’ evidence was, as I have set out, very clear. Apart from this comment, the trial judge did not indicate whether or not she was accepting any, all or none of Ms. Lewis’ evidence. [37] The trial judge’s failure to expressly grapple with this evidence was a serious error in the circumstances of this case. Had she clearly understood the potential implications of Ms. Lewis’ conclusion that the two signatures were copies of the same signature, she would most likely have approached the other evidence somewhat differently, including the missing Version 1 with Bruce’s ink signature on it and the inconsistencies in Brenda’s evidence regarding how she discovered Version 2 of the will. [38] For instance, there is nothing to indicate that the trial judge understood the significance of the missing original Version 1 with Bruce’s signature on it, particularly given the fact that, as the trial judge did note, Brenda gave inconsistent explanations as to what had happened to it. The trial judge stated twice that the existence of the original Version 1 does not affect the validity of Version 2. To the contrary, the significance and relevance was the possibility that the original Version 1 was the very version that Brenda had arranged to have the “witnesses” sign, or that the signature on Version 1 was copied to create Version 2 which was then signed by the two witnesses. The expert’s evidence that the signatures were copies of each other supported these theories. [39] In addition, had the trial judge understood the implications of the expert’s evidence in light of Brian’s theory of the case, she would likely have approached Brenda’s evidence on how she discovered Version 2 differently. In accepting Brenda’s evidence, the trial judge noted: The theory of Brian’s case is that Ms. Bayford colluded, conspired, or connived with Ms. Desarmia and Ms. Gordon to create Version 2. I find that Ms. Bayford’s conduct in the days and weeks following Bruce’s death runs contrary to that theory. Ms. Bayford’s conduct enhances the credibility of her evidence as to when and how she discovered the existence of Version 2: · Why would she, on the day following Bruce’s death, attend at Mr. Colbert’s office with Version 1 and acknowledge to Ms. Fraser that she did not have a fully-executed version of the 2013 Will? · Why, approximately 12 days after speaking with Ms. Fraser, would Ms. Bayford acknowledge publicly (to Mr. Stavenow in front of others) that the 2013 Will was unsigned in some way? [40] The trial judge’s questions suggest that she misunderstood Brian’s position and mistakenly considered the expert evidence to be irrelevant . First, the uncontradicted evidence that Brenda took Version 1 to Mr. Colbert’s office the day after Bruce’s death is entirely consistent with Brian’s theory of the case that, at this point, there was no Version 2. It is also consistent with Ms. Fraser’s evidence that Brenda said “I saw him sign it” when Ms. Fraser informed Brenda that, because it was not witnessed, Version 1 was not a valid will. This suggests that Brenda did not realize that the will needed to be witnessed by two witnesses to the testator’s signing of the will. In other words, a plausible answer to the first question is that when Brenda took Version 1 into Mr. Colbert’s office, she thought it was valid and was taken aback, not upon being told that the office did not have a fully executed copy of the will, but upon being told that Version 1 was not valid. The trial judge accepted Brenda’s evidence on the point. Further, rather than ask why Brenda brought Version 1 to Mr. Colbert’s office after Bruce’s death, the expert’s evidence should have caused the trial judge to ask how Brenda could attend the office with an original of Version 1, with a yet to be discovered original Version 2 existing contemporaneously in the farm’s kitchen and containing an identical signature. [41] Second, there is an obvious response on the evidence presented at trial to the second question posed by the trial judge with respect to Brenda’s conversation with Mr. Stavenow. That response is that when she visited Mr. Stavenow’s store, Brenda had not yet considered the possibility of creating Version 2 out of the signed Version 1. This explanation would be consistent with Brian’s theory of the case and the expert’s evidence that Bruce’s signatures on both versions were the same or copies of each other. It would also be consistent with the events as found by the trial judge, which was that Brenda’s visit to Mr. Stavenow’s store preceded both her chance meeting with Ms. Desarmia and her discovery of Version 2 several weeks after Bruce’s death. However, there is no indication that the trial judge appreciated this possibility, despite Brian’s argument regarding Brenda’s collusion to create Version 2 and the expert evidence. [42] As I outlined earlier, there were a number of inconsistencies in Brenda’s evidence. While a trial judge’s findings of fact attract significant deference, and the bar for misapprehension of evidence is high, it is met in this case. Had she been alive to the essence of Brian’s claim and the significance of Ms. Lewis’ evidence, which she did not reject, the trial judge still might have resolved the inconsistencies as she did. But her dismissal of all of the inconsistencies in Brenda’s favour in the absence of a full appreciation of the substance and significance of the expert’s evidence went to the heart of this case and its outcome. The misapprehension of the expert evidence was obvious and essential to her conclusion that Version 2 was valid and constitutes palpable and overriding error. [43] The trial judge made a number of other, related errors. She stated correctly that intent is not relevant to the formal validity of a will, and she correctly indicated that the evidence of Bruce’s intention was inadmissible. However, she included Brenda’s evidence of Bruce’s intention to change his will in her recitation of the facts and noted at the beginning of her analysis, at para. 32, that “Brian is not alleging that the 2013 Will reflects anything other than the instructions given by Bruce to Mr. Colbert with respect to the substantive terms of the will”, which suggests that intent did play a part in her conclusion that Version 2 was valid. [44] In addition, the trial judge erred in stating that it was up to Brian to produce the original of Version 1, stating that Ms. Lewis was working with only photocopies and that “Brian did not call any evidence to explain why Ms. Lewis was not given the opportunity to inspect the original documents”: at para. 68. This comment is problematic for two reasons. First, it was Brenda who, as the propounder of the will, had the burden of proving its formal validity. Second, it was precisely the fact that she was unable to provide the original of Version 1 that gave rise to this issue of validity. [45] In short, given the expert’s evidence which the trial judge misinterpreted but did not reject, the trial judge erred in finding that Brenda had discharged her onus of proving the formal validity of the will. As the signatures were “the same”, the absence of the original Version 1 was a serious problem which was not overcome by the other evidence, whose frailties were not addressed or arguably even appreciated by the trial judge in light of her misunderstanding of the expert’s opinion. [46] For these reasons I am satisfied that Brenda did not meet her onus of establishing the formal validity of the will. (5) The fresh evidence [47] Brenda seeks to introduce the original Version 2 of the will as fresh evidence on this appeal. She submits that the tests for the admission of fresh evidence in Palmer v. The Queen , [1980] 1 S.C.R. 759, at p. 775 and Sengmueller v. Sengmueller (1994), 111 D.L.R. (4th) 19 (Ont. C.A.), at p. 23, are met because the original Version 2 was not available at trial and could not be adduced with the exercise of due diligence, and it is necessary to deal fairly with the heart of the issue on appeal, which is the authenticity of Version 2 of the will. [48] I disagree. The evidence does not meet the test for the admission of fresh evidence. The existence of the original Version 2 of the will is not likely to be conclusive of whether Version 2 of the will is valid. This is because it does not explain what happened to the original Version 1. Given Brian’s position that Version 2 was created by using the original Version 1, which did have Bruce’s original signature on it, and by having the two witnesses sign it, and the expert’s evidence that Bruce’s signatures in both versions are the same, the continuing absence of the original Version 1 (which Brenda claims exists somewhere) continues as a problem for Brenda. The validity of the original Version 2 of the will remains in question. This evidence is not necessary to deal fairly with the issues on appeal and declining to admit it would not result in a substantial injustice. (6) Disposition and costs [49] The appeal is allowed, the judgment below is set aside and the action is dismissed. The will dated August 15, 2013 is invalid. If the parties are unable to come to an agreement on costs, they may make written submissions not exceeding 5 pages, the appellant Brian within 10 days of the release of this decision and the respondent Brenda within 7 days after that. Released: June 22, 2021 “D.D.” “A. Harvison Young J.A.” “I agree Doherty J.A.” “I agree I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Cheng v. Sze, 2021 ONCA 457 DATE: 20210622 DOCKET: C68200 Strathy C.J.O., Feldman and Sossin JJ.A. BETWEEN Bonnie Ho Yee Cheng Applicant (Respondent) and David Chan Sau Sze Respondent (Appellant) Roger A. Gosbee, for the appellant Ken H. Nathens and Denniel Duong, for the respondent Heard: May 17, 2021 by video conference On appeal from the order of Justice Robert Charney of the Superior Court of Justice, dated February 11, 2020. COSTS ENDORSEMENT [1] Having received and considered the submissions of the parties concerning the costs of the appeal, we order costs to the respondent in the amount of $17,500, inclusive of disbursements and all applicable taxes, such costs to be paid from the appellant’s share of the net proceeds of sale of the matrimonial home, currently being held by Chak M. Wong, Barrister and Solicitor. [2] We take this opportunity to observe that, as a general rule, counsel on an appeal should confer with their clients and opposing counsel before the hearing to attempt to agree, if possible, on the amount of costs payable to the successful party. Making post-hearing costs submissions necessarily gives rise to both delay and additional costs to both parties – delay and costs that can be avoided by agreement on a realistic number. Where the parties cannot agree, they should exchange costs outlines prior to the hearing and should be prepared to present them and to make submissions to the panel, if and when asked to do so. “G.R. Strathy C.J.O.” “K. Feldman J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hillmount Capital Inc. v. Pizale, 2021 ONCA 456 DATE: 20210622 DOCKET: M52200 (C68999) Strathy C.J.O., Brown and Miller JJ.A. BETWEEN Hillmount Capital Inc. Respondent (Applicant) and Celine Brittany Pizale and Richard Stanley Pizale Moving Parties/Appellants (Respondents) Jamie Spotswood and Rachel Migicovsky, for the moving parties/appellants, Celine and Richard Pizale Robert Macdonald and Teodora Prpa, for the receiver, Zeifman Partners Inc. Behn Conroy, for the purchasers, Patricia and David Armstrong Shana Nodel, for second mortgagees, 1713691 Ontario Inc. and Boris Nodel Terry M. Walman, for first mortgagee, Elle Mortgage Corporation Heard: February 8, 2021 by video conference COSTS ENDORSEMENT [1] Further to the reasons released May 28, 2021 ( Hillmount Capital Inc. v. Pizale , 2021 ONCA 364), the parties have filed written cost submissions. The respondent Receiver was successful on the appeal and we see no reason that it should not be awarded costs. The appellants, Celine and Richard Pizale, shall pay the Receiver its partial indemnity costs, fixed in the amount of $3,000, inclusive of disbursements and applicable taxes. “G.R. Strathy C.J.O.” “David Brown J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Barreira, 2021 ONCA 455 DATE: 20210622 DOCKET: C68868 Miller, Paciocco and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Joshua Barreira Appellant Delmar Doucette, for the appellant Elena Middelkamp, for the respondent Heard: June 18, 2021 by videoconference On appeal from the sentence imposed on November 16, 2020 by Justice Harrison S. Arrell of the Superior Court of Justice, with reasons reported at 2020 ONSC 6558. REASONS FOR DECISION FACTUAL BACKGROUND & PROCEDURAL HISTORY [1] Joshua Barreira and Tyler Johnson had been involved in an altercation in September 2013. On November 30, 2013, based on information received from his brother, Mr. Barreira anticipated another fight with Mr. Johnson, so he summoned the assistance of Chad Davidson. Mr. Barreira then led a search for Mr. Johnson. During the encounter that followed, in Mr. Barreira’s presence, Mr. Davidson shot Mr. Johnson in the chest, killing him. [2] Mr. Barreira was initially tried and convicted of murder for his role in Mr. Johnson’s death. However, in March 2020 this court set his murder conviction aside and ordered a new trial: 2020 ONCA 218, 62 C.R. (7th) 101. [3] On August 6, 2020, the Crown accepted a guilty plea from Mr. Barreira to the lesser included offence of manslaughter. [4] Sentencing submissions were completed on October 1, 2020. The matter was adjourned for the sentencing judge to prepare reasons for sentence. [5] On November 16, 2020, the sentencing judge determined that 15 years’ imprisonment was a fit sentence for the manslaughter offence. Mr. Barreira was given 10 years’ credit for pre-sentence custody served prior to the sentencing hearing, and a further six months of “ Duncan credit” for the harsh conditions during his pre-sentence custody, leaving a net sentence of 4.5 years. ISSUES ON APPEAL [6] Mr. Barreira seeks leave to appeal his sentence. He raises the following grounds of appeal: (1)     The 15-year sentence imposed by the sentencing judge fell outside the appropriate sentencing range; (2)     Since the agreed statement of facts disclosed that it was unknown whether Mr. Barreira knew that Mr. Davidson had a gun, the sentencing judge erred by failing to sentence Mr. Barreira on the basis that he did not know that Mr. Davidson had a gun; (3)     The sentencing judge erred in not assigning greater Duncan credit given the harshness of the conditions during pre-sentence custody; and (4)     The sentencing judge omitted to assign the equivalent of 69 additional days of pre-sentence custody for the 46 days Mr. Barreira had served between sentencing submissions on October 1, 2020 and the date on which his sentence was imposed, November 16, 2020. ANALYSIS [7] We grant Mr. Barreira leave to appeal his sentence, and we accept his fourth ground of appeal, which the Crown concedes. It appears that the sentencing judge’s failure to give pre-sentence credit for the time between sentencing submissions and the imposition of sentence was an oversight. [8] However, we reject the other alleged errors. [9] First, we do not agree that the sentencing judge erred by imposing a sentence outside the appropriate range. As noted by the Supreme Court of Canada, “The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention”: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. The relevant inquiry is whether the sentence was demonstrably unfit. [10] Without commenting on whether the sentence imposed by the sentencing judge was outside the range, in our view the sentence was not demonstrably unfit, even considering mitigating circumstances. Mr. Barreira led the search for Mr. Johnson, invited Mr. Davidson’s participation in the attack on an unsuspecting and unarmed victim, and had an extensive criminal record, including a prior conviction for counselling murder. [11] Second, the sentencing judge did not err by treating the uncertainty about whether Mr. Barreira knew that Mr. Davidson had a gun as a neutral factor. For Mr. Barreira to benefit from the alleged mitigating fact that he did not know Mr. Davidson had a gun, this would need to have been established on the balance of probabilities: R. v. Smickle , 2013 ONCA 678, 311 O.A.C. 288, at para. 18; Criminal Code , R.S.C. 1985, c. C-46, s. 724(3). [12] Third, the impact of enhanced credit for harsh conditions of pre-sentence custody is a matter well within the discretion of the sentencing judge: R. v. Duncan , 2016 ONCA 754, [2016] O.J. No. 5255, at paras. 6-7; R. v. Ledinek , 2018 ONCA 1017, [2018] O.J. No. 6503, at para. 13. While the sentencing judge might well have given more credit for those conditions, this does not provide a basis for interfering. CONCLUSION [13] Leave to appeal from sentence is granted, and Mr. Barreira’s sentence appeal is allowed in part. [14] The sentence of 4.5 years is set aside, and a sentence of 4 years, 113 days is substituted to reflect the 69 additional days of pre-sentence credit that should have been awarded for the 46 days of pre-sentence custody between sentencing submissions and the date Mr. Barreira was sentenced. “B.W. Miller J.A.” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: United States v. Hillis, 2021 ONCA 447 DATE: 20210622 sDOCKET: C68423 Simmons, Watt and Roberts JJ.A. BETWEEN The Attorney General of Canada on behalf of the United States of America Respondent and Brady John Hillis Applicant Seth P. Weinstein and Michelle Biddulph, for the applicant Adrienne Rice, for the respondent Heard: October 2, 2020 by video conference On judicial review of the order of surrender of the Minister of Justice, dated May 12, 2020. Watt J.A.: [1] One evening in June about three years ago, Brady John Hillis (the applicant) was at the Fortune Bay Resort and Casino in Minnesota. There, within an hour, he is alleged to have inappropriately touched three girls, aged 7, 9 and 12. [2] The alleged offences were reported to security staff at the casino. Later, an investigation was undertaken by federal authorities in the United States. The applicant was released and allowed to return to Canada. [3] The United States has decided to seek the applicant’s extradition so that he can be prosecuted in Minnesota on federal charges. A warrant was issued for the applicant’s arrest. He was arrested and later released from custody on a recognizance. [4] After an application to stay proceedings failed, the applicant consented to committal. A judge of the Superior Court of Justice ordered the applicant’s committal. A few months later, the Minister of Justice ordered the applicant’s surrender for extradition. [5] The applicant asks us to quash the surrender order of the Minister. In the alternative, he asks us to quash the order and remit the matter to the Minister to consider whether the applicant ought to be surrendered on the condition that he not be prosecuted for offences that could lead to a mandatory minimum sentence. These reasons explain why I would decline to quash the order or remit the matter to the Minister. The Background [6] A brief history of the proceedings will provide the background necessary to place the claims of error in their appropriate setting. The Principals [7] The applicant is a 32-year-old Canadian citizen. At the time of the alleged offences, he was employed as an Ontario Provincial Police officer, and he was a guest at the Fortune Bay Resort and Casino on the Bois Forte Indian Reservation in the State of Minnesota. [8] Each of the complainants were also guests at the resort, as were their parents. They were aged 7, 9 and 12 when the offences were alleged to have occurred. The Allegations [9] In the Record of the Case and in the indictment handed down by the grand jury in the United States District Court, District of Minnesota, each complainant is described as Jane Doe, followed by a number. [10] Jane Doe 1, an enrolled member of the Bois Forte Band of Chippewa, alleged that the applicant offered her money if she would let him touch her “bum”. He rubbed his hand over her clothed buttocks a couple of times and up her right leg. This occurred in the arcade at the resort. She reported the incident to her parents after quickly walking out of the arcade. Jane Doe was 9 years old. [11] Jane Doe 2, an enrolled member of the Leech Lake Band of Ojibwe, alleged that while she was in the kiddie pool at the resort, the applicant asked her to come over to where he was sitting at the edge of the pool. He asked her some questions, then put his arm under the water and slid his hand under the leg portion of her swimsuit. He touched her “private part” with his fingers. He asked whether she liked the touch. Jane Doe 2 said “no”. The applicant said he would “make it feel good”. Jane Doe 2 tried to move away but the applicant pulled her back, then put his hand under the top part of her two-piece swimsuit and touched her breast area with his hand. [12] Jane Doe 2 told her other siblings, who then told her foster parents. Her foster parents and siblings contacted security at the resort. Law enforcement was called. Jane Doe 2 was 7 years old. [13] Jane Doe 3 was in the swimming pool at the resort with a friend. The applicant was swimming close to them. Jane Doe 3 and her friend decided to race each other to the other end of the pool. As she dove down, Jane Doe 3 felt someone touch or rub her buttocks. The applicant made a moaning sound. Jane Doe 3 asked her friend whether she (the friend) had touched her (Jane Doe 3’s) buttocks. The friend said she did not. Jane Doe 3 told her mother about the incident as they were leaving the resort later that evening, but neither she nor her mother reported it to law enforcement that day. Jane Doe 3 was 12 years old. The Investigation [14] The incidents were reported first to resort security. Local law enforcement was notified. Eventually, the Federal Bureau of Investigation took over. The applicant was released and permitted to return to Canada. He immediately reported the incident to his superiors at the Ontario Provincial Police. The Extradition Proceedings [15] By a Diplomatic Note sent about two months after the alleged offences, the United States sought the extradition of the applicant to stand trial on a three-count indictment handed down by a grand jury in the United States District Court in the District of Minnesota one month earlier. The indictment contained two counts of abusive sexual contact with a child under 12 and a single count of aggravated sexual abuse of a child under 12. [16] Two days later, senior counsel with the International Assistance Group for the Minister of Justice of Canada issued an Authority to Proceed under s. 15 of the Extradition Act , S.C. 1999, c. 18 (the “Act”) on behalf of the Minister of Justice. The corresponding domestic equivalent offence is sexual interference under s. 151 of the Criminal Code , R.S.C. 1985, c. C-46 . The Application to Stay Proceedings [17] Prior to the committal hearing, the applicant applied to a judge of the Superior Court of Justice for an order staying the extradition proceedings on the ground that they constituted an abuse of process. The application was resisted by the Attorney General of Canada on behalf of the extradition partner on the ground that there was no basis on which to conclude an abuse of process had occurred. [18] The application judge concluded that he had no jurisdiction to grant the remedy sought. He dismissed the application. The Committal Hearing [19] With the applicant’s consent, the presiding judge ordered the applicant’s committal. The Ministerial Phase [20] The Minister of Justice received written submissions from counsel for the applicant on two occasions. The Minister sought and obtained information from the United States Department of Justice about the available and likely sentences, including the prospect and consequences of both federal and state civil commitment proceedings. He also sought and obtained an opinion from the Attorney General for Ontario about the sentence likely to be imposed were the applicant to be tried in Canada for the Canadian equivalent offence of sexual interference. [21] The Minister also had access to the Record of the Case, four Supplementary Summaries of the Case and assurances from the United States Department of Justice that no federal civil commitment proceedings would be taken against the applicant if he were extradited to the United States to stand trial on the federal indictment in Minnesota. The Surrender Decision [22] On May 12, 2020, the Minister advised counsel for the applicant that he ordered the applicant’s surrender. The order was subject to the condition that the applicant be deported at the conclusion of his criminal proceedings in the United States. The Minister relied on the assurance that the applicant would not be subject to any form of civil commitment as undertaken by the United States Department of Justice. An order of surrender was issued. The Application for Judicial Review [23] The applicant invokes ss. 57(1) and (7) of the Act. He asks that we quash the surrender order of the Minister on the ground that it is unreasonable, the result of flawed legal analysis and inadequate consideration of applicable precedent. [24] The overarching submission of unreasonableness in the Minister’s decision to order surrender includes several discrete complaints of legal error. To better understand the applicant’s grievances, some more background is helpful. The Offences Charged [25] The indictment on which the United States proposes to try the applicant contains three counts. Two counts allege abusive sexual contact with a child under 12 years of age. The third alleges aggravated sexual abuse of a child under 12 years of age. As the description of the offences would suggest, the count of aggravated sexual abuse alleges a more serious offence than the counts of abusive sexual contact. The Likely Sentencing Ranges on Conviction [26] The offence of abusive sexual contact does not attract a minimum sentence. The maximum sentence that can be imposed on conviction is imprisonment for life. The statutory sentence on conviction of aggravated sexual abuse is imprisonment for not less than 30 years, nor more than life. [27] According to the United States Department of Justice, the potential sentence the applicant would receive if convicted would depend on various factors, including the nature of the offences of which he is convicted. For multiple convictions, the sentences could be ordered to be served consecutively, although they are presumed to be concurrent. A plea agreement involving counts that do not trigger the 30-year minimum sentence could reduce the period of imprisonment. [28] The United States Department of Justice explained that, irrespective of the application of a statutory minimum sentence, the sentencing court, with the benefit of a pre-sentence report, must also consider the relevant sentencing guidelines. The guidelines are discretionary, not mandatory. If the applicant is convicted at trial, the likely range of sentence would extend from 30 years to imprisonment for life. Alternatively, depending on the nature of the convictions or any plea agreement, the guidelines range could be as low as 51 to 63 months without a mandatory term of imprisonment. [29] In a statutory declaration, the applicant’s United States counsel agrees with the United States Department of Justice that it is difficult to predict a sentence if convictions were entered on the counts of abusive sexual conduct. He also agrees that the United States Department of Justice fairly represented the likely advisory sentencing guideline sentence. No settlement negotiations have taken place. A United States Department of Justice memo on charging and sentencing directs federal prosecutors to pursue mandatory minimum sentences and requires supervisory approval to depart from sentencing guidelines or mandatory minimum sentences, once charged. Federal Civil Commitment [30] According to the United States Department of Justice, the applicant could be subject to federal civil commitment based on the charges included in the indictment. But whether federal civil commitment would occur is subject to myriad factual and time-specific circumstances that are extremely difficult to predict at this early stage of proceedings. [31] Proceedings for federal civil commitment begin when the United States Bureau of Prisons Certification Review Panel certifies to a federal district judge that a federal prisoner (1) previously “engaged or attempted to engage in sexually violent conduct or child molestation”, (2) currently “suffers from a serious mental illness, abnormality, or disorder”, and (3) “as a result of” that illness, abnormality or disorder is “sexually dangerous to others.” This certification stays the prisoner’s release from custody. This stay permits the United States Government to prove its claims in a court hearing before a judge of the federal district court. With or without the assistance of a psychiatric or psychological evaluation, the Government is required to prove “by clear and convincing evidence” that the prisoner is a “sexually dangerous person”. [32] If the United States Government proves that a person is a “sexually dangerous person”, the prisoner is committed to the custody of the Attorney General, who may order the prisoner’s release to a state willing to assume responsibility for the prisoner’s custody, care and treatment. Or the Attorney General may put the committed prisoner in a facility for treatment until a state will assume responsibility for the prisoner, or the prisoner’s condition improves to the point where they can be safely released. During the civil commitment, the facility director submits annual reports and makes recommendations about the need for continued commitment. Where the facility director certifies that the prisoner is no longer sexually dangerous to others or will not be sexually dangerous to others if released under a prescribed regimen, the court that ordered the commitment must either discharge the prisoner or hold a hearing to determine whether and on what conditions the prisoner should be released. [33] The Minister sought assurances from the United States Department of Justice that, if extradited, the applicant would not face civil commitment. The Criminal Division of the United States Department of Justice provided an assurance that it would waive the possibility of seeking civil commitment of the applicant as a sexually dangerous person. On completion of sentence imposed on conviction, or on acquittal, the applicant would not be in state custody. He would immediately be placed in federal deportation proceedings, which have priority over any state proceedings for civil commitment. Alternatively, if all statutory and treaty conditions have been met, the United States Department of Justice would not object to a request by Canada or the applicant that he be transferred to serve the balance of his sentence in Canada, if made within two years before the completion of his sentence. State Civil Commitment [34] The State of Minnesota also has a civil commitment procedure. The procedure may be invoked by a county attorney filing a petition in state district court against a convicted person in federal custody. State civil commitment requires proof by clear and convincing evidence that the prisoner is a “sexually dangerous person” or has a “sexually psychopathic personality” as defined in the applicable state legislation. The state may have jurisdiction over a person for these purposes if a county in the state is financially responsible for the person or if the person is incarcerated or present in the county. [35] The United States Department of Justice advised the Minister that although the applicant may be subject to state civil commitment based on the charges in the indictment, whether civil commitment could take place is subject to many factual and time-specific circumstances that are extremely difficult to predict in this incipient stage of the proceedings. [36] The United States Department of Justice opined that the State of Minnesota may not have jurisdiction to civilly commit the applicant. This is because the applicant is not a resident of or incarcerated in Minnesota, nor is any county in the state financially responsible for him. Further, the state may decline to exercise jurisdiction for a variety of reasons. Cost. Limitations under state law. The fact that states do not routinely monitor federal prisoners. The prospect that a federal prisoner may be transferred to another federal prison outside of Minnesota rendering the state commitment order non-executable. The fact that the United States federal government already has an effective system in place. And the fact that states strongly support the federal assumption of responsibility in this aspect of corrections. [37] The applicant’s United States counsel describes the Minnesota sex offender civil commitment scheme as one of the most aggressive and far-reaching in the United States. The legal standards are distinctly vague and broad. They confine people for indeterminate periods based on predictions of future dangerousness. Prior convictions are not required, although most commitments occur after conviction and completion of imposed sentences. The decision to file a petition for civil commitment is made by the State of Minnesota, not the United States. [38] If the applicant is convicted and sentenced to a term of imprisonment, the United States Department of Justice points out, he will serve his sentence in a United States Bureau of Prisons facility. This facility could be anywhere in the United States. As someone convicted of aggravated felonies, the applicant would have no immigration status and would be deportable. United States Immigration and Customs Enforcement (“ICE”) would process an administrative removal order prior to the applicant’s release date. This would result in a detainer for deportation. The applicant would go directly from Bureau of Prisons custody to ICE custody for deportation to Canada, without serious threat of civil commitment by federal or state authorities. Sentencing for the Domestic Equivalent Offence [39] The domestic equivalent offence to those charged in the United States District Court indictment in Minnesota is specified in the Authority to Proceed as sexual interference. This offence may be prosecuted by summary conviction or on indictment. The maximum sentence when prosecuted by indictment is imprisonment for a term of 14 years. The mandatory minimum sentence of one year has been struck down as cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . [40] The Minister solicited and received from the Attorney General for Ontario an estimate of the range of sentence likely to be imposed on the applicant if he were prosecuted in Ontario and convicted of sexual interference on all three counts. The range of sentence suggested was 90 days to 3 years. Statutory aggravating factors include the age of the complainants, itself an essential element of the offence of sexual interference, and the fact that what was involved was abuse of a person under 18. The Attorney General for Ontario also noted the potential impact of the principles in s. 718.2(e) of the Criminal Code and R. v. Gladue , [1999] 1 S.C.R. 688 if the applicant identified as Aboriginal. The Reasons of the Minister [41] The Minister considered whether, in all the circumstances, the applicant’s surrender would be unjust or oppressive or otherwise contrary to s. 7 of the Charter . Since the applicant could be prosecuted in Canada for the offences on which he has been indicted in Minnesota, with the consent of the appropriate attorney general, the Minister examined whether the decision to prefer extradition over domestic prosecution infringed the applicant’s mobility rights under s. 6(1) of the Charter . The Minister also acknowledged his authority to refuse surrender where there were compelling grounds to do so. He accepted that he could refuse surrender even where no Charter breach was established and was required to consider the direct and indirect potential consequences of the surrender, such as the punishment or treatment reasonably anticipated in the extradition partner’s jurisdiction. [42] In responding to a submission that the applicant would face indefinite civil commitment if surrendered, the Minister examined three issues: i. whether the applicant faces a real risk of state or federal civil commitment if surrendered; ii. if such a risk exists, whether ordering surrender would violate s. 7 of the Charter or be unjust or oppressive under s. 44(1)(a) of the Act; and iii. if extradition to face a real risk of civil commitment is barred by s. 7 of the Charter or s. 44(1)(a) of the Act, whether an assurance from the United States that no petition for civil commitment will be made in this case is required. [43] After briefly describing the assurance provided by the United States Department of Justice on behalf of the Government, the Minister concluded that the assurance was reliable, so that ordering the applicant’s surrender would not be unjust or oppressive or contrary to s. 7 of the Charter : I am of the view that the assurance provided by the United States is reliable. The United States is a trusted treaty partner and I am entitled to rely on its undertakings ( Gervasoni v Canada (Minister of Justice) (1996) , 72 BCAC 141). There is nothing in the record before me to suggest that the United States does not have the capacity to fulfill its assurance or that it is providing it in bad faith. It should not be lightly assumed that a foreign country would not act in good faith in complying with an assurance ( Argentina v Mellino , [1987] 1 SCR 536). The assurance from the United States addresses the risk that Mr. Hillis will face civil commitment in the United States and renders the remaining Carroll issues [the issues the Minister was considering] moot. Accordingly, I conclude that ordering Mr. Hillis’ surrender, in the face of such an assurance, would not be unjust or oppressive, or contrary to section 7 of the Charter. [44] The Minister rejected the submission that the prospect of civil commitment on surrender violates the principle of double criminality due to a reduced standard of proof and the absence of an equivalent Canadian offence. The principle of double criminality, expressed in s. 3(1)(b) of the Act, is that Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada. The Minister said he was satisfied that the United States was not seeking the applicant’s surrender for the purpose of civil commitment. The purpose of the extradition request and extradition was to prosecute the applicant for the federal offences alleged in the indictment. A judge decided there was sufficient evidence to commit the applicant for extradition. The double criminality requirement was met based on the Canadian equivalent offence of sexual interference. In addition, the assurance that the applicant would not face civil commitment on extradition establishes that the extradition is not sought for that purpose. [45] On the issue of sentence disparity, the Minister noted that, death penalty cases apart, nothing in the relevant treaty — the Treaty on Extradition between the Government of Canada and the Government of the United States of America , 3 December 1971, Can. T.S. 1976 No. 3 (entered into force 22 March 1976), as amended by Protocol Amending the Treaty on Extradition between Canada and the United States of America Signed at Washington on December 3, 1971, as amended by an Exchange of Notes on June 28 and July 9, 1974 , 11 January 1988, Can. T.S. 1991 No. 37 (entered into force 26 November 1991) — permits refusal of surrender based on the applicable penalties. Nonetheless, the Minister accepted that there is a significant disparity between the sentence the applicant would face if convicted of all the offences after a trial in the United States and that which he may receive in Canada. The Minister was required to consider whether the applicant’s surrender to face a potentially lengthy sentence in the United States would violate s. 7 of the Charter , shock the Canadian conscience or contravene s. 44(1)(a) of the Act. [46] The Minister rejected the applicant’s submission based on sentence disparity between the punishment likely imposed on conviction in the United States and that likely on conviction for the equivalent Canadian offence: Refusing surrender on the basis of the penalty Mr. Hillis may face would mean that the principles of comity and fairness to other cooperating states in rendering mutual assistance in bringing fugitives to justice would not be respected. Canadian courts have repeatedly found that surrender to face a potentially lengthy mandatory minimum sentence in a Requesting State does not violate section 7 of the Charter. [Citations omitted.] Specifically, in cases of alleged sexual offences against children, Canadian appellate courts have found that potentially lengthy mandatory minimum sentences do not warrant denying surrender to the United States ( United States v Wilcox , 2015 BCCA 39, leave to appeal to SCC refused, [2015] SCCA No 124; United States v K(JH) (2002), 165 CCC (3d) 449 (ONCA), leave to appeal to SCC refused, [2002] SCCA No 501). Moreover, I must consider Mr. Hillis’ sentencing exposure singly and in combination with other relevant factors, namely, the seriousness of the allegations. As noted by the bail judge, at the time of the alleged offence, Mr. Hillis was an Ontario Provincial Police Officer. The victims are young Indigenous girls, members of a particularly vulnerable population, which has been the subject of staggering rates of violence in Canada. In my view, it would be a very serious offence for an officer sworn to protect and serve such a vulnerable population in Canada, to violate young Indigenous girls at play in a hotel where they are vacationing with their families. The sentences available in the United States and Canada reflect the importance of deterring the alleged conduct. The fact that Mr. Hillis would face a lesser sentence in Canada, and would not face a mandatory minimum sentence, does not make the allegations against him any less serious. I am reminded of Burns in which the Supreme Court of Canada held that “individuals who choose to leave Canada leave behind Canadian law and procedures and must generally accept the local law, procedure and punishments which the foreign state applies to its own residents.” The severity of the American sentence and the disparity between it and a sentence Mr. Hillis would face if prosecuted in Canada is not so extreme or exceptional in the circumstances of this case that surrender would be unjust or oppressive under the Act, or shock the Canadian conscience, or otherwise be contrary to section 7 of the Charter. Having regard to all of the circumstances, I am of the view that it would not be unjust or oppressive, or contrary to section 7 of the Charter to order Mr. Hillis’ conditional surrender to the United States. The Arguments on Review The Applicant’s Arguments [47] The applicant says that the Minister’s decision to surrender him is unreasonable, the result of flawed reasoning and significant omissions in his analysis. [48] To begin, the applicant contends, the Minister failed to consider how it would be fair and just to surrender a Canadian citizen to face a minimum of 30 years in prison for offences that Canadian courts have found that a 1-year minimum sentence constitutes cruel and unusual punishment. Further, the Minister failed to properly consider whether exposing a Canadian citizen to a sentence that Canadian courts have identified as cruel and unusual would shock the conscience and offend the Canadian sense of what is fair, right and just. In addition, the Minister glossed over the impact of a finding of unconstitutionality for the mandatory minimum sentence for the Canadian equivalent offence. In essence, the Minister failed to engage with the constitutional issue. [49] The applicant argues that the protection against cruel and unusual punishment under s. 12 of the Charter is itself a principle of fundamental justice protected by s. 7 of the Charter , which is applicable to surrender decisions. Extradition to face a sentence far in excess of what Canadian courts have found to be cruel and unusual punishment violates s. 7 of the Charter and shocks the Canadian conscience. Where, as here, a decision has particularly harsh consequences for a Canadian citizen, especially where those consequences impinge on a person’s life, liberty, dignity or livelihood, the decision maker must grapple with those consequences. The Minister did not do so here. [50] The applicant accepts that disparity in potential sentences between United States’ offences and their Canadian equivalent does not generally shock the conscience of Canadians but adds that this general rule is not unyielding. Where, as here, the likely United States sentence is so grossly disproportionate to the gravity of the offence, the circumstances of the accused and the sentence warranted for the Canadian equivalent offence, surrender to face imposition of such a sentence would shock the Canadian conscience. [51] The standard an applicant is required to meet to establish a breach of s. 12 of the Charter is high. What is required is a finding of gross disproportionality, not that the sentence is merely excessive. Canadian courts have found that the mandatory minimum sentence for sexual interference under s. 151 of the Criminal Code offends s. 12 of the Charter . Although s. 12 does not directly apply in extradition cases, its protection against cruel and unusual punishment is itself a principle of fundamental justice. It follows that surrender to face cruel and unusual punishment amounts to a deprivation of liberty contrary to s. 7 of the Charter . Such surrender shocks the conscience of Canadians and warrants quashing the surrender order. [52] The applicant accepts that the “shocks the conscience” test only applies where courts have deemed the Canadian punishment to be cruel and unusual in the context of the actual circumstances of the fugitive. Here, where the mandatory minimum under s. 151 has been declared to be cruel and unusual punishment in similar circumstances, the “shocks the conscience” test is met where extradition is sought for a person who will face a much lengthier mandatory minimum sentence in the United States. That the mandatory minimum sentence is not certain does not mitigate or undermine the “shocks the conscience” test. [53] The reasons of the Minister, the applicant says, are unresponsive to the issues raised. They amount to no more than a generic response to a submission that the applicant’s extradition would infringe s. 7 of the Charter . The Minister relies on authorities decided before Canadian courts reached a consensus on the constitutional infirmity of mandatory minimum sentences. The conclusion was also flawed by the erroneous assessment of the seriousness of the alleged offences. It was unreasonable for the Minister to stray outside the characterization by the Attorney General for Ontario, whose report the Minister sought for the range of sentence appropriate for the Canadian equivalent offences of sexual interference. The Minister mischaracterized the seriousness of the offence by considering irrelevant factors and failed to consider any mitigating factors. The Respondent’s Arguments [54] The respondent focuses first on the nature of the determination the Minister was required to undertake, then on the scope of our authority to review it. [55] The Minister’s surrender decision resides at the extreme legislative end of the continuum of administrative decision making. It is largely political in nature. With superior expertise in Canada’s international relations and foreign affairs, the Minister is in the best position to determine whether the factors weigh in favour of or against extradition. The Minister’s decision is to be accorded substantial deference on review. [56] The appropriate standard of review for the surrender decision is reasonableness. A reasonableness review does not allow the court to re-assess the relevant factors and to substitute its own view. In a review of the reasonableness of the Minister’s decision, a court must keep in mind the constraints imposed on the Minister by international law, including Canada’s treaty obligations. The court must determine whether the Minister’s decision falls within a range of reasonable outcomes. In an extradition case, this means that the court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. Interference is limited to exceptional cases of “real substance”. No interference should occur where, as here, the decision is rational, transparent and responsive to the applicant’s submissions. [57] The Minister recognized that he was required to assess the consequences of surrender under s. 7 while incorporating the underlying values of s. 12 of the Charter . He acknowledged that he was required to consider the disparity between the potential sentence the applicant would face if convicted in the United States and the potential sentence he would face if convicted of the equivalent domestic offence in Canada. [58] The respondent disagrees that the Minister rested his decision on a premise that mandatory minimum sentences in the requesting state can never shock the Canadian conscience. He considered the constitutional infirmity of the mandatory minimum sentences for the Canadian equivalent offence. He was not required to accept the declaration of unconstitutionality as a dispositive factor. It was one of many he considered in deciding whether surrender to a potential mandatory minimum of significantly greater magnitude would offend s. 7. The applicant has not articulated any specific basis on which a declaration of unconstitutionality of the mandatory minimum sentence for the Canadian equivalent offence should have concretely altered the Minister’s analysis in this case. [59] Further, the respondent continues, the Minister did not err in his assessment of the seriousness of the allegations against the applicant. He considered myriad factors. The inherent harm of the sexual violence against children and consequential harm to members of their family. The Indigenous status of the alleged victims, their sex, young age and the particular vulnerability of the Indigenous population. The applicant’s position as a police officer in Canada. This assessment was reasonable and commensurate with governing principles. Purported mitigating factors should be approached with caution in downgrading the wrongfulness of the offence or the harm to the victims. The Governing Principles [60] Our review of the Minister’s surrender decision engages principles drawn from the jurisprudence developed in response to previous challenges of a similar kind. [61] A convenient point of departure is the authority of the Minister to refuse surrender of a person whose committal to await surrender has been ordered after an extradition hearing. The Authority to Refuse Surrender [62] The Minister’s authority to order surrender of a person sought by an extradition partner is governed by statute, namely the Act. [63] Section 40(1) of the Act confers on the Minister the discretion to personally order that a person committed to await surrender be surrendered to the extradition partner. This broad discretion must be exercised in accordance with the dictates of the Charter : United States v. Burns , 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 32, citing Kindler v. Canada (Minister of Justice) , [1991] 2 S.C.R. 779, at p. 846, per McLachlin J. and Canada v. Schmidt , [1987] 1 S.C.R. 500, at pp. 520-21. [64] The requirement that the Minister’s surrender decision be exercised in accordance with the Charter demands that the discretion demonstrate a balancing on the facts of each case with the applicable principles of fundamental justice: Burns , at para. 32. In some cases, this balancing and the ultimate requirement that the Minister’s decision adhere to the principles of fundamental justice — the basic tenets of our legal system — may require the Minister to seek assurances from the extradition partner: Burns , at para. 32. [65] The Act confers a discretion on the Minister to seek any assurances the Minister considers appropriate from the extradition partner, or subject the surrender to any conditions that the Minister considers appropriate, including a condition that the person sought not be prosecuted, or that a sentence not be imposed on or enforced against the person sought, in respect of any offence or conduct other than what is referred to in the order of surrender: s. 40(3). In addition, in cases in which the Minister subjects the surrender to assurances or conditions, the surrender order must not be executed until the Minister is satisfied that the extradition partner has given the assurances or agreed to the conditions: s. 40(4). [66] The Act also authorizes the Minister to refuse surrender in some circumstances, as may the provisions of the relevant extradition agreement: see, for example, ss. 44-47 of the Act. [67] In this case, the applicant invokes s. 44(1)(a) of the Act, which requires the Minister to refuse surrender where the Minister is satisfied that, in all the circumstances, the surrender would be unjust or oppressive. A surrender order is unjust or oppressive where, in all the circumstances, the order would “shock the conscience” of Canadians: Canada (Attorney General) v. Barnaby , 2015 SCC 31, [2015] 2 S.C.R. 563, at para. 2; Burns , at para. 68. The phrase “shocks the conscience” is intended to underscore the very exceptional nature of the circumstances that would constitutionally limit the Minister’s decision: Burns , at para. 67. [68] Use of the terminology “shocks the conscience” is intended to convey the exceptional weight of a factor which, because of its paramount importance, may control the outcome of the balancing test on the facts of a particular case. The balancing test considers both the global context and circumstances that may constitutionally vitiate a surrender order: Kindler , at p. 833, per La Forest J. The terminology does not cloud the ultimate measuring stick, that is, whether the extradition accords with the principles of fundamental justice: Burns , at para. 68. A surrender order that breaches the principles of fundamental justice will always shock the conscience: Burns , at para. 68. Sentencing Disparity as a Basis to Refuse Surrender [69] A surrender order deprives the person sought of their liberty and security of their person. In each case, this threatened deprivation must be in accordance with the principles of fundamental justice: Burns , at para. 59; Kindler , at p. 831, per La Forest J. [70] Section 7 of the Charter is concerned not only with the act of extradition, but also with the potential consequences of the act of extradition. A potential consequence of extradition of a person sought by the extradition partner for trial is the punishment that may be imposed in the event of conviction after trial: Burns , at paras. 59-60, citing Schmidt , at p. 522. [71] The surrender order of the Minister hands over the person sought to law enforcement authorities in the United States, the extradition partner in this case. The Minister’s order does not impose or constitute punishment. If punishment is to be imposed, it will be imposed by law enforcement authorities in the United States. [72] Since any punishment that might be imposed in the event of conviction is determined by law enforcement authorities in the jurisdiction of the extradition partner, that punishment is not subject to review under s. 12 of the Charter : Burns , at paras. 51, 54-57; Kindler , at p. 846, per McLachlin J.; and Schmidt , at pp. 518-19. The degree of causal remoteness between the Minister’s order surrendering a person and the potential imposition of a term of imprisonment, as one of several possible outcomes to the prosecution in the jurisdiction of the extradition partner, requires that our review of the Minister’s order be conducted under s. 7 of the Charter , not s. 12: Burns , at para. 57. [73] That said, our review of the Minister’s order to ensure its compliance with s. 7 of the Charter must keep in mind that the values underlying s. 12 form part of the balancing process under s. 7. In other words, the interpretation of s. 7, and thus our review of the Minister’s decision, is informed by s. 12: Burns , at para. 57; Kindler , at pp. 831, per La Forest J., 847, per McLachlin J.; and Schmidt , at p. 522. [74] The “shocks the conscience” standard described earlier allows for the possibility that even though the rights of the person sought are to be considered in the context of other applicable principles of fundamental justice, which are usually important enough to uphold extradition, a particular treatment or punishment may sufficiently violate our sense of fundamental justice that it tilts the balance against extradition: Burns , at para. 69. [75] Disparity between the potential sentence the person sought would face if convicted in the jurisdiction of the extradition partner and the potential sentence likely imposed if the person sought were convicted of the Canadian equivalent offence is a factor to be considered in the Minister’s decision and on review of that decision to determine whether the surrender order “shocks the conscience” of Canadians: Canada (Justice) v. Fischbacher , 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 54; M.M. v. United States of America , 2015 SCC 62, [2015] 3 S.C.R. 973, at paras. 115-20. This difference in potential jeopardy must be balanced with myriad other factors, including comity and reciprocity, which underpin our extradition regime: M.M. , at paras. 26, 115-20; Kindler , at p. 847, per McLachlin J. [76] The mere fact of disparity between potential sentences in the jurisdiction of the extradition partner and those in Canada for the domestic equivalent offence is not sufficient to warrant refusal of a surrender order or setting it aside on review for want of compliance with the principles of fundamental justice. The disparity must be such that it meets the “shocks the conscience” standard: Burns , at para. 69; Schmidt , at pp. 522-23; United States of America v. Leonard , 2012 ONCA 622, 291 C.C.C. (3d) 549, at para. 94, leave to appeal refused, [2012] S.C.C.A. No. 543; and United States of America v. Wilcox , 2015 BCCA 39, 321 C.C.C. (3d) 82, at para. 41, leave to appeal refused, [2015] S.C.C.A. No. 124. The Canadian Equivalent Offence [77] The Canadian equivalent offence to those charged in the United States indictment is sexual interference, contrary to s. 151 of the Criminal Code . This offence is a dual procedure offence. When prosecuted by indictment, it is punishable on conviction by a minimum sentence of imprisonment of 1 year and a maximum sentence of 14 years: s. 151(a). [78] A sentence for an offence committed in Canada will infringe s. 12 of the Charter if the sentence is “grossly disproportionate” to the punishment that is appropriate to the nature of the offence and the circumstances of the offender: R. v. Nur , 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39; R. v. Lloyd , 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 22. And a law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur , at para. 77; Lloyd , at para. 22. [79] Challenges under s. 12 of the Charter involve a two-step analysis. The first step requires the court to determine what constitutes a proportionate sentence for the offences committed having regard to the applicable objectives and principles of sentencing. The second step requires the court to decide whether the mandatory minimum sentence requires imposition of a sentence that is grossly disproportionate to the offence and its circumstances: Lloyd , at para. 23. [80] The Supreme Court of Canada has established a high bar for finding that a sentence represents a cruel and unusual punishment. A sentence that is merely excessive is not “grossly disproportionate”. More is required. The sentence must be so excessive as to outrage standards of decency and be abhorrent or intolerable to society. The wider the range of circumstances and conduct captured by a mandatory minimum sentence, the greater the likelihood that the mandatory minimum will apply to offenders for whom the sentence will be grossly disproportionate: Lloyd , at para. 24. [81] The mandatory minimum sentence of imprisonment for one year upon conviction on indictment of sexual interference has been found to breach s. 12 of the Charter and declared to be of no force or effect: R. v. Hood , 2018 NSCA 18, 45 C.R. (7th) 269, at para. 156; R. v. J.E.D ., 2018 MBCA 123, 368 C.C.C. (3d) 212, at paras. 107, per Steel J. (dissenting, but not on this point), 130, per Mainella and leMaistre JJ.A.; Caron Barrette c. R ., 2018 QCCA 516, 46 C.R. (7th) 400, at para. 116; R. v. B.J.T ., 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 75; R. v. Ford , 2019 ABCA 87, 371 C.C.C. (3d) 250, at para. 18; and R. v. Scofield , 2019 BCCA 3, 52 C.R. (7th) 379, at para. 89. [82] Despite the absence of a mandatory minimum sentence for sexual interference, this being the result of the declaration of constitutional invalidity just mentioned, that an offence involved abuse of a person under 18, or abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and female, a sentencing court in Canada is required to give primary consideration to the sentencing objectives of denunciation and deterrence: Criminal Code , ss. 718.01 and 718.04. The Standard of Review [83] The appropriate standard of review for the Minister’s surrender decision is reasonableness. This is so regardless of whether the person sought contends that the extradition would infringe their rights under the Charter : Lake v. Canada (Minister of Justice) , 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 34, 41. [84] The Minister’s surrender decision resides at the extreme legislative end of the continuum of administrative decision making. It is a decision that is largely political in nature. The Minister has superior expertise in international relations and foreign affairs. Thus, the Minister is in the best position to determine whether the factors, taken as a whole, tilt the balance for or against extradition: India v. Badesha , 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 39. [85] The breadth of the Minister’s discretion is reflected in the authorities that hold that interference with the Minister’s discretion is limited to exceptional cases of real substance. We are not entitled to re-assess the relevant factors and replace the Minister’s view with our own. We must determine whether the Minister’s decision falls within a range of reasonable outcomes. In other words, we ask whether the Minister considered the relevant facts and rendered a defensible conclusion: Lake , at paras. 34, 41. In this review, we must bear in mind the constraints imposed on the Minister by international law, including our treaty obligations: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 114. [86] A reasonableness review focuses on the actual decision that is its subject. This includes not only the decision maker’s reasoning process, but also the outcome. Our role is to review. At least as a general rule, we are to refrain from deciding the issue ourselves. We are not to ask what decision we would have made had we been assigned the task of the decision maker. Nor are we to attempt to determine the “range” of possible conclusions that would have been open to the decision maker. Nor are we to conduct a de novo analysis or try to determine the “correct” solution to the problem. We are to consider only whether the Minister’s surrender decision — including both its rationale and outcome — was reasonable: Vavilov, at para. 83. [87] Vavilov instructs that a reasonable decision is a decision based on an internally coherent and rational chain of analysis and justified in relation to the facts and law that constrain the decision maker. Reasonableness is concerned principally with the existence of justification, transparency and intelligibility within the decision-making process, and with whether the decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and law. To be reasonable, a decision must be based on reasoning that is both logical and rational, and it must be tenable in light of the relevant factual and legal constraints: Vavilov , at paras. 85, 86, 99 and 101-2. [88] The Minister’s reasons must be read in light of the record and with due sensitivity to the extradition regime in which they were given: Vavilov , at paras. 105-7. The reasons will be unreasonable if, when read holistically, they fail to reveal a rational chain of analysis or do reveal that the decision was based on an irrational chain of analysis. A decision will also be unreasonable if the conclusion cannot follow from the analysis undertaken or if the reasons, read in conjunction with the record, do not make it possible to understand the decision maker’s reasoning on a critical point: Vavilov , at para. 103. The Principles Applied [89] As I will explain, I would not give effect to the submission that the surrender decision of the Minister is unreasonable. [90] At the outset, it is important to be clear about the potential consequences of the surrender order so that those consequences can be evaluated against the “unjust or oppressive” and “shocks the conscience” touchstone the applicant advances as the single ground on which a surrender should have been refused. [91] The surrender order mandates surrender on only three federal charges. Two counts of abusive sexual contact with a child under 12 and one count of aggravated sexual abuse of a child under 12. Almost by definition, civil commitment is not an offence, hence is not the subject of a count or charge in the indictment. Indeed, if the purpose for which the extradition partner sought extradition were civil commitment, it would be doubtful that this would be permitted by s. 3(1)(a) of the Act. [92] The surrender order, as s. 40(3) of the Act permits, is subject to assurances. Those assurances are that the applicant, on return to the jurisdiction of the extradition partner, will not be subject to any form of civil commitment “as set out in the attached letter from the United States Department of Justice dated March 13, 2020”. In that letter, the United States Department of Justice indicated that it would not pursue civil commitment of the applicant under federal law and that the applicant would not be civilly committed by the state in this case. On the conclusion of any sentence imposed on conviction, or on an acquittal, the applicant, as a Canadian citizen, would immediately be placed in federal deportation proceedings. Thus, the applicant would not be in state custody and his deportation would have priority over any state civil commitment proceedings. Nor would the United States object to the applicant’s transfer to Canada to serve the remainder of any sentence imposed in the United States if the Government of Canada or the applicant requests this within two years before the conclusion of any sentence imposed on him. [93] The United States indictment contains three counts. Two of those counts, of abusive sexual contact with a child under 12, do not attract a mandatory minimum sentence on conviction. The third, aggravated sexual abuse of a child under 12, has a mandatory minimum sentence of imprisonment of 30 years. [94] The Canadian equivalent offence — sexual interference under s. 151(a) of the Criminal Code — is subject to a statutory mandatory minimum sentence of imprisonment for one year. But that sentence has been declared to be of no force or effect because it constitutes cruel and unusual punishment. As a result, there is no mandatory minimum sentence for the Canadian equivalent offence to those with which the applicant is charged in the United States. A suggested range of sentence, were the offences committed in Ontario and the applicant convicted on indictment and sentenced here, is imprisonment for a term of between 90 days and 3 years. Statutory provisions such as ss. 718.01 and 718.04 accord primary consideration to the sentencing objectives of deterrence and denunciation. Also relevant are the principles expounded in R. v. Friesen , 2020 SCC 9, 391 C.C.C. (3d) 309, at paras. 60, 68, 70, 74, 77-78 and 101. [95] The Minister was asked by the applicant to refuse surrender on the ground that the surrender would be unjust or oppressive in all the circumstances under s. 44(1)(a) of the Act. The principal ground advanced on the applicant’s behalf was two-fold: i. the significant disparity between the sentences imposed on conviction in the United States (a minimum sentence of 30 years) and that likely in Canada for the equivalent offence under domestic law (no minimum sentence and a likely sentence of imprisonment of between 90 days and 3 years); and ii. the potential of indefinite civil detention under state law after sentence or even after acquittal with no meaningful right of review. [96] In his written reasons, the Minister considered whether surrender would be unjust or oppressive or contrary to s. 7 of the Charter . He acknowledged his obligation to consider the direct and indirect potential consequences of surrender, such as the punishment or treatment reasonably anticipated in the extradition partner’s jurisdiction. The Minister accepted that he was to assess the implications of surrender through the lens of s. 7 of the Charter as informed by the values underlying s. 12 of the Charter . In declining to exercise his discretion to refuse surrender as unjust or oppressive or contrary to s. 7 of the Charter , the Minister considered, among other factors: i. the civil commitment regime in the State of Minnesota; ii. the principle of double criminality; and iii. the sentence disparity between the potential U.S. sentence and the potential sentence in Canada on conviction of the comparable Canadian offence. [97] The applicant’s argument that disparity warrants refusal of surrender as unjust or oppressive pivots on the impact of determinations by Canadian courts that the statutory minimum mandatory sentence of imprisonment for one year for the comparable Canadian offence of sexual interference offends s. 12 of the Charter as cruel and unusual punishment and, accordingly, is of no force or effect. The applicant acknowledges that the finding of constitutional invalidity under s. 12 is based on reasonable hypotheticals and that s. 12 is not directly applicable to the United States minimum sentences, although it informs the analysis under s. 7. [98] As it seems to me, the argument advanced proves too much. The submission would mean that anytime a mandatory minimum sentence for a comparable Canadian offence was struck down as cruel and unusual punishment, if only based on reasonable hypotheticals, a mandatory minimum sentence of greater length in an extradition partner’s jurisdiction would constitute a sentence that would shock the conscience of Canadians, thus offending s. 7 of the Charter , and warrant refusal of surrender as unjust or oppressive under s. 44(1)(a) of the Act. This argument cannot prevail. [99] In combination, several factors persuade me that the submission that the Minister’s surrender decision is unreasonable fails. [100] To begin, the surrender decision falls at the extreme legislative end of the continuum of administrative decision making and is largely political in nature. The Minister has superior expertise in international relations and foreign affairs. This attracts substantial deference on judicial review. The surrender decision involves a balancing of competing interests. Interference on judicial review is limited to exceptional cases of “real substance”. It necessarily follows that we are disentitled to re-assess or re-weigh the factors considered by the Minister and substitute our own view in place of that of the Minister. [101] In our review of the reasonableness of the Minister’s surrender decision, we must also consider the restraints imposed on the Minister under international law, including under Canada’s treaty obligations. That Canada has entered into an extradition agreement with another country demonstrates a certain level of confidence in the administration of justice in that country, even if the system may be different from ours, with different priorities and disparate punishments. [102] The discrepancy in potential jeopardy between the extradition partner and Canada is not dispositive of whether the surrender shocks the conscience of Canadians, whether it would offend s. 7 of the Charter or whether it would warrant refusal as unjust or oppressive under s. 44(1)(a) of the Act. Other factors include the offence for which the penalty may be prescribed. The nature of the justice system in the extradition partner. The safeguards and guarantees it affords the person sought. And considerations of comity. [103] In this case, the Minister was well aware of the nature and extent of the disparity and of its importance to his surrender decision. He took steps to obtain assurances to reduce that disparity. He obtained assurances that no federal civil commitment proceedings would (or could) be taken and that state civil commitment proceedings would be foreclosed. The potential of civil commitment, a key factor in the applicant’s submissions to the Minister, has been removed from the mix by the inclusion of assurances in the surrender order. [104] As the Minister recognized, it is well settled that, absent sentences that would invoke consequences such as torture, the death penalty, excision of limbs and the like, the sentencing regimes of other nations, despite their significant severity compared to our own, will not generally “shock the conscience” of Canadians. [105] Further, it is important to keep in mind that the issue here is not whether the 30-year mandatory minimum sentence for one offence with which the applicant is charged in the United States — aggravated sexual abuse of a child under 12 — for the conduct alleged here would pass constitutional muster under s. 12 of the Charter . To frame the issue in this way would extend the measuring stick of s. 12 of the Charter to the sentencing regime of another country, our extradition partner. Rather, the issue, as the Minister recognized, was whether surrendering the applicant to an extradition partner where he would face that prospect would “shock the conscience” of Canadians contrary to s. 7 of the Charter or be unjust or oppressive contrary to s. 44(1)(a) of the Act. [106] Relatedly, implicit in the applicant’s argument is a submission that, since our domestic criminal and constitutional law would assuredly affix the label “cruel and unusual punishment” to a mandatory minimum sentence of 30 years’ imprisonment for our comparable offence, to surrender a person sought to an extradition partner where he would be subject to such a prospect necessarily offends the principles of fundamental justice and is unjust or oppressive. This comes uncomfortably close to an extra-territorial application of s. 12 of the Charter . What is more, it would uproot in the extradition context the holding in Lloyd , at paras. 40 and 47, that proportionality in sentencing is not itself a principle of fundamental justice. Disposition [107] For these reasons, I would dismiss the application to review the Minister’s surrender decision. Released: June 22, 2021 “JS” “David Watt J.A.” “I agree. Janet Simmons J.A.” “I agree. L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Burns v. Brown, 2021 ONCA 450 DATE: 20210621 DOCKET: M52505 (C67833) Brown J.A. (Motions Judge) BETWEEN Barbara Elizabeth Burns Applicant (Respondent/Responding Party) and James Alexander Brown Respondent (Appellant/Moving Party) James A. Brown, acting in person Christina Doris, for the responding party Heard: June 17, 2021 by video conference ENDORSEMENT OVERVIEW [1] This is a motion in a family law appeal, in which the main ground of appeal concerns the amount of parenting time awarded to the appellant father, James Brown. He seeks an order extending the time for the perfection of his appeal until July 30, 2021. The respondent mother, Barbara Burns, opposes his request. [2] At all material times during this proceeding, the appellant was a practising family law lawyer. BACKGROUND [3] The decision under appeal was released on November 22, 2019, following a six-day trial. [4] The appellant filed a notice of appeal on December 17, 2019. The grounds of appeal fall into two categories: (i) the trial judge committed errors, with a monetary effect of just over $10,000, in fixing child support arrears and determining inter-party debt; and (ii) the trial judge erred in failing to order equal parenting time in respect of the parties’ child who, at the time of the trial, was 4.5 years old. [5] In January 2020, the appellant ordered the trial transcripts. [6] At the end of January, he received correspondence from this court about its settlement conference program. The appellant wanted to take advantage of the program. In March 2020, the respondent agreed to participate. When the appellant followed up with the court office in late March, he was advised that a conference could not be held because of the court’s suspension of operations during the initial stages of the pandemic. [7] At that point, the appellant contacted the transcriptionist and unilaterally directed that preparation of the transcripts be suspended. [8] This court suspended operations on March 16, 2020 and resumed some hearings the following month. Various practice directions issued by the court informed the public and the Bar that while the timelines for serving and filing documents were suspended from March 16 until July 15, 2020, those timelines were reinstated effective July 16, 2020. [9] However, it was not until early November 2020 that the appellant contacted the court office to renew his request for a settlement conference. [10] Although the appellant did not receive a response from the court to his settlement conference inquiry until May 14, 2021, on January 4, 2021 the court sent the parties a Notice of Intention to Dismiss Appeal for Delay if the appeal was not perfected by April 27, 2021. The appellant deposes that he did not receive the Notice although it bears his office address; the respondent deposes that she received it. [11] When the appellant renewed his request for a settlement conference in May 2021, the respondent advised that she no longer consented to a conference. As a result, on May 18, 2021, at the direction of Benotto J.A., the appellant was advised that a settlement conference would not be held and that he was required to perfect his appeal within seven days, by May 25, 2021. [12] He did not do so. Indeed, he could not do so as a result of his earlier unilateral suspension of the preparation of the trial transcripts. The appellant has since asked the transcriptionist to continue with the transcript preparation. He advises that he has received transcripts for all but one day of the trial and anticipates the last transcript will arrive by the end of this month. ANALYSIS [13] The overarching principle is that an extension should be granted if the justice of the case requires. The length of the delay and appellant’s explanation for the delay [14] The appellant submits that he acted reasonably in unilaterally suspending the preparation of the transcripts and his delay in perfecting the appeal is explained by court delays resulting from COVID-19 and his desire to obtain a settlement conference. [15] In assessing the reasonableness of the appellant’s explanation, it is significant that at all material times he was a practising family law lawyer. I am not persuaded that the appellant has provided an adequate explanation for his over one-year delay in perfecting his appeal. [16] First, the settlement conference materials the appellant received from this court in January 2020 clearly state that to request a pre-hearing settlement conference the parties must submit a form titled “Joint Request for Pre-hearing Settlement Conference.” The appellant did not do so. [17] Second, those materials also clearly state that “the parties must still comply with rule 61.05(5) of the Rules of Civil Procedure .” That rule requires the appellant to file proof that he has ordered a transcript of all relevant evidence. While the appellant did so, he unilaterally suspended the preparation of the transcripts, an act inconsistent with the obligation imposed by r. 61.05(5), which contemplates the continuing preparation of transcripts once ordered. The respondent did not consent to the suspension. That unilateral suspension has materially contributed to the delay in perfecting the appeal. [18] Third, the appellant failed to pursue, with the required diligence, the availability of a settlement conference and the perfection of his appeal. By mid-July 2020 this court’s normal operations had resumed, relying on videoconference technology, and the timelines under the rules were reinstated. Yet the appellant waited months before making a follow-up inquiry in November 2020 and then essentially sat on his hands until he received the May 14, 2021 email from the court. Regardless of the timeliness of communications from the court office, an appellant is obligated to pursue the steps in an appeal with due diligence. Mr. Brown did not. [19] Fourth, the respondent has submitted evidence of the appellant’s litigation conduct leading up to the trial. In an endorsement dated July 3, 2019, about a year and a half after the respondent had initiated her application ( Burns v. Brown , 2019 ONSC 4004), W.L. MacPherson J. found that the appellant was litigating in bad faith stating, at para. 27 of her reasons: There are ample reasons to make a finding of bad faith which include: a) bringing the constitutional challenge and refusing to abandon same, despite being given opportunities to do so; b) the [appellant] abandoning several claims (orders of May 25, 2018 and November 6, 2018 to remain in effect and only be adjusted as of the March 2019; request to amend pleadings;  disclosure of Canada Revenue Agency documents by applicant) during the motion in response to the court’s inquiry only, without any advance notice to the applicant or her counsel; c) the amount of time taken to deal with the motion including preparation of multiple factums and two-and-half-days of argument; d) the [appellant] disputing the consent order of November, 6, 2018 suggesting that he was under duress in signing same and misrepresenting to the court that Nightingale J. had directed the applicant as to the commencement date of reduced spousal support; e) the [appellant] alleging fraud and misrepresentation by the applicant’s former counsel, which was totally unfounded; f) the [appellant] alleging fraud by the applicant’s current counsel during argument, without any prior notice or foundation, and only retracting same upon questioning from the court; g) the main objective of the motion amounted to nothing more than “an appeal in disguise.” [20] These judicial comments disclose that the appellant has engaged in various forms of delay tactics during this proceeding. That, in turn, informs my assessment of his conduct on this appeal since March 2020. I regard the appellant’s delay in perfecting his appeal not as the product of forces beyond his control or attributable to the respondent but as indicative of an indifference to his obligation, as an appellant, to perfect his appeal with all due diligence. [21] The appellant’s inordinate delay in perfecting his appeal and the absence of a reasonable explanation for most of that delay weigh heavily against his request for an extension. As well, they indicate that he did not maintain an intention to appeal throughout the relevant period of time: Issasi v. Rosenzweig , 2011 ONCA 112, 277 O.A.C. 391, at para. 5. Prejudice to the respondent [22] The respondent deposes that the appellant’s delay causes harm to her and their daughter, who is entitled to certainty when it comes to her parenting schedule. As well, the delay causes harm to the respondent due to the significant emotional and economic cost of litigating against the appellant who, as a self-represented lawyer litigant, does not incur the legal costs the respondent must incur. Merits of the appeal [23] If an extension is not granted, the appellant’s appeal will be dismissed as he has not complied with the direction of Benotto J.A. communicated on May 18, 2021 to perfect his appeal by May 25, 2021. Consideration therefore must be had of the merits of his appeal. [24] The appellant’s grounds of appeal concerning the calculation of child support arrears and the amount of debt he owed the respondent are questions of fact, which are subject to a deferential standard of review. The appellant’s notice of appeal does not assert that the trial judge made a palpable and overriding error of fact in either regard. [25] While the appellant alleges that the trial judge misapprehended the evidence regarding his child support arrears, the trial judge dealt at length with the issue of child support at paras. 54-63 of her reasons. The trial judge’s reasons disclose, at para. 64, that her calculation of the amount of arrears was based on the parties’ consensus as to the amount of support the appellant had paid: It is acknowledged by both parties that James contributed to child support during this period in the amount of $9580. The arrears of support for this period are, therefore, $14,835 less $9580, which equals $5255. [26] As to the amount of the debt payable by the appellant, I see no merit in this ground of appeal as the trial judge accepted the appellant’s position at trial writing, at para. 82: James’ position is that he will pay $5000 to Barbara. That position is accepted. That amount, when paid, is enough to satisfy his obligation regarding all Visa expenses, all Jeep insurance payments and all Jeep loan payments up to the date of sale. [27] In respect of the appellant’s ground of appeal alleging inadequate parenting time, the trial judge spent considerable time in her reasons dealing with the issues regarding the child. She ordered joint custody but directed that the 4.5 year old child primarily reside with the respondent mother, reflecting the long-standing status quo . The trial judge specifically addressed the appellant’s claim for equal parenting time at paras. 46-51: James asserts that the application of the maximum contact principle mandates that Joya should share time equally between her parents. This submission ignores or glosses over the aspect of the test, which specifies that a child should have as much contact with each parent as is consistent with the best interests of the child. James provided virtually no evidence as to why an equal timesharing regime would be in Joya’s best interest compared to the status quo (expanded to include a midweek overnight). James asks for a 2-2-5 parenting regime. He led no specific evidence to explain how he would implement this schedule, what changes this would entail for Joya, or what benefits this would provide for Joya. James also led no evidence to outline or highlight deficiencies in the parenting schedule proposed by Barbara. Barbara proposes that James have Joya on alternate weekends and one overnight per week. The midweek overnight is a change from the current schedule, which includes two non-overnight evenings per week. James’ position is simply that Barbara’s proposal is not enough and shared parenting should be the default. In the absence of any evidence establishing for the child additional benefits in a pure shared parenting regime, where the child is thriving and has positive relationships with each parent and with her extended family, the status quo is to be respected. [28] In his notice of appeal, the appellant does not identify any specific legal or factual error made by the trial judge in arriving at her parenting order. The notice simply baldly asserts that the trial judge “erred in fact and law in imposing an Order that departed significantly from equal parenting time.” [29] When considered as a whole, I regard the appellant’s grounds of appeal as very weak. As a result, I do not regard the prejudice to the appellant from denying an extension to outweigh his inordinate delay and lack of reasonable explanation for the delay. Conclusion [30] Assessing the circumstances as a whole, I conclude that the justice of the case points to denying the appellant an extension of time to perfect his appeal: his delay has been inordinate; he has not provided a satisfactory explanation for the delay; his conduct indicates that he did not maintain an intention to pursue his appeal after filing the notice of appeal; his desultory litigation conduct reflects a pattern of delay throughout this litigation; the merits of his appeal are very weak; and there is a strong need for finality in respect of the parenting arrangements for the young child. DISPOSITION [31] Accordingly, I dismiss the appellant’s motion. [32] The appellant shall pay the respondent her costs of this motion in the amount of $2,500, inclusive of disbursement and applicable taxes, payable within 30 days of the release of these reasons. “David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: El-Khodr v. Northbridge Commercial Insurance Company, 2021 ONCA 440 DATE: 20210621 DOCKET: C68343 Doherty, Pepall and Thorburn JJ. A. BETWEEN Kossay El-Khodr Applicant (Appellant) and Northbridge Commercial Insurance Company and Hughes Amys LLP Respondents ( Respondent ) Joseph Y. Obagi and Elizabeth A. Quigley, for the appellant Harvey Klein, for the respondent Heard: February 19, 2021 by videoconference On appeal from the judgment of Justice Heather J. Williams of the Superior Court of Justice, dated April 17, 2020, with reasons reported at 2020 ONSC 2319. Thorburn J.A.: OVERVIEW [1] In Ontario, parties injured in an automobile accident can receive “no fault” first-party benefits through receipt of statutory accident benefits (“SABs”). SABs are required by statute to be included in all automobile insurance policies. They provide a person injured in an accident, whether or not they are at fault, access to medical, rehabilitation, and other benefits to assist with their recovery. [2] An injured person may also bring a legal action against the “at fault” driver in tort (“the tort defendant”). There is often overlap between the compensation provided pursuant to the SABs and the award of damages in a civil proceeding. [3] Section 267.8 of the Insurance Act , R.S.O. 1990, c. I.8, therefore provides that tort awards must be reduced by corresponding categories of SABs received. This is accomplished by deducting those SABs received before trial from the damages awarded and by either holding in trust those SABs received after trial or by assigning the SABs benefits payable after trial to the tortfeasor or his insurer. [4] The appellant, Kossay El-Khodr, suffered catastrophic injuries in a motor vehicle accident. Royal & Sun Alliance Insurance Company of Canada (“Royal”) is Mr. El-Khodr’s SABs insurer. The respondent, Northbridge Commercial Insurance Company (“Northbridge”), is the insurer for the tort defendant and conducted the defence on the tortfeasor’s behalf. [5] The jury awarded Mr. El-Khodr substantial damages payable by the tortfeasor. Northbridge, as insurer for the tortfeasor, sought an assignment of certain accident benefits payable by Royal to Mr. El-Khodr. While the trial judge assigned some benefits, the assignment of benefits for future medication and assistive devices and future professional services was denied. [6] Northbridge appealed the decision (“the Assignment Appeal”) to this court. After the Assignment Appeal was heard but before reasons were released, Royal, Northbridge, and Mr. El-Khodr entered into Minutes of Settlement. Under the minutes of settlement, Royal settled $385,000 into a trust for the benefit of the appellant and Northbridge in “full and final satisfaction of any and all entitlement to medical and rehabilitations benefits.” The Minutes of Settlement provided, as set out in detail below, that this sum would be held by Hughes Amys LLP, counsel to Northbridge, and released either to Mr. El-Khodr or Northbridge depending on the outcome of the Assignment Appeal. Specifically, Northbridge would receive the funds “in the event that the said appeal is allowed and an assignment of Kossay El-Khodr’s entitlement to medical and rehabilitation benefits is granted to Northbridge.” [7] In September 2017, the Assignment Appeal was granted and this court ordered that the amounts payable by Royal to Mr. El-Khodr for future medication and assistive devices, and for professional services for specified benefits up to the amount of the jury award, be assigned to Northbridge: see El-Khodr v. Lackie , 2017 ONCA 716, 139 O.R. (3d) 659, leave to appeal refused, [2017] S.C.C.A. No. 461. [8] The application judge was asked to interpret the Minutes of Settlement in light of the Assignment Appeal and determine whether the preconditions for the transfer of funds to Northbridge in the Minutes of Settlement were satisfied. [9] Mr. El-Khodr argued that this court, in the Assignment Appeal, did not order the “assignment of Mr. El-Khodr’s entitlement of medical and rehabilitation benefits” as it assigned only part of those benefits and, as such, the second precondition to the transfer of funds was not satisfied. The application judge rejected this approach and held that the conditions set out in the Minutes of Settlement were met. She therefore ordered that the $385,000 amount in the Settlement Agreement be released to Northbridge. [10] Mr. El-Khodr appeals the application judge’s order to transfer the $385,000 to Northbridge. [11] For the reasons that follow, I would dismiss the appeal. BACKGROUND [12] The issue on this appeal is whether the application judge made a palpable and overriding error of fact or an extricable error of law in failing to properly construe the preconditions for payment to Northbridge in the Minutes of Settlement. [13] In order to assess whether the application judge erred in her interpretation of the Minutes of Settlement, it is necessary to understand (a) the available approaches to the assignment of the SABs benefits, (b) the background facts and terms of the Minutes of Settlement (c) the decision of this court on the Assignment Appeal and (d) the reasons of the application judge. A. The Available Approaches to the Assignment of Sabs [14] In Ontario, Statutory Accident Benefits Schedule, O. Reg. 34/10, under the Insurance Act , enables parties injured in an automobile accident to receive no-fault first-party benefits while at the same time suing the at-fault driver in tort. [15] Because of the overlap between the compensation provided pursuant to the SABs and the damage awards, s. 267.8 of the Insurance Act provides that the tort award must be reduced by corresponding categories of SABs received. Section 278.8(12) addresses the assignment of SABs payable after trial and provides as follows: Assignment of future collateral benefits (12) The court that heard and determined the action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile, on motion, may order that, subject to any conditions the court considers just, (a)     the plaintiff who recovered damages in the action assign to the defendants or the defendants’ insurers all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident after the trial of the action, (i)      for statutory accident benefits in respect of income loss or loss of earning capacity, (ii)      for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan, (iii)     under a sick leave plan arising by reason of the plaintiff’s occupation or employment, (iv)     for statutory accident benefits in respect of expenses for health care, (v)     under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law, and (vi)     for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care…. [16] As noted above, the benefits to be assigned are described in the Act only in broad categories: income loss, loss of earning capacity, and expenses that have been or will be incurred for health care or other pecuniary loss. [17] Until the decisions in Carroll v. McEwen , 2018 ONCA 902, 143 O.R. (3d) 641, and Cadieux v. Cloutier , 2018 ONCA 903, 143 O.R. (3d) 545, leave to appeal to refused, [2019] S.C.C.A. No. 63, courts applied two different methods to address the overlap between damages awarded and SABs received: (a) the “apples-to-apples” or “strict matching” approach, which required temporal and qualitative matching of SABs to specific heads of tort damages; and, (b) the “silo” approach, which only includes three broad categories of SABs under the Insurance Act : income replacement benefits, health care benefits, and other pecuniary losses. Under the “silo” approach, tort damages are only required to match generally with a corresponding SABs category. [18] In Carroll and Cadieux , companion appeals, a five-member panel of this court adopted the “silo” approach to the treatment and matching of SABs to tort damages under section 267.8 of the Insurance Act . The panel held that the “strict matching” approach, developed in Bannon v. McNeely (1998), 38 O.R. (3d) 659 (C.A.), was no longer to be followed. One of the stated benefits of the silo approach was that it would promote greater efficiency in motor vehicle accident litigation. [19] Carroll and Cadieux were rendered after the Assignment Appeal was decided in September 2017. B. Background Facts and Terms of the Minutes of Settlement The Tort Claim [20] In January 2007, the tortfeasor’s vehicle rear-ended a two-truck driven by Mr. El-Khodr, who suffered serious injuries. He brought an action against the driver and owner of the vehicle. [21] Liability for the collision was not at issue by the time of trial, which proceeded before a jury. The parties asked the jury to assess the tort damages “in respect of the following categories”: (i) past loss of income; (ii) general damages for pain and suffering and loss of enjoyment of life; (iii) future loss of income; and (iv) future care costs. [22] Mr. El-Khodr was awarded global damages in the amount of $2,850,977.80. [23] The amounts awarded for future care costs included (i) future attendant care costs/assisted living in the amount of $1,450,000; (ii) future professional services, such as physiotherapy and psychology, in the amount of $424,550; (iii) future housekeeping and home maintenance services in the amount of $133,000; and (iv) future medication and assistive devices in the amount of $82,429. [24] The damages were paid in full on August 10, 2015. [25] After the verdict, the trial judge made a series of rulings addressing, among other things, the assignment of SABs: see El-Khodr v. Lackie , 2015 ONSC 5244, 79 C.P.C. (7th) 356. [26] She held that income replacement and attendant care benefits payable by Royal to Mr. El-Khodr be assigned to the tortfeasors’ insurer, Northbridge, for specified periods, and that housekeeping benefits be assigned to Northbridge until the SABs received equalled the amount of the jury award. No SABs relating to future professional services and medications and assistive devices were assigned. In denying the assignment of these benefits, she reasoned that benefits should be assigned only if it is absolutely clear that the plaintiff’s entitlement to such benefits is certain and that the plaintiff received compensation for the same benefits in the tort judgment, citing Gilbert v. South , 2014 ONSC 3485, 120 O.R. (3d) 703, at para. 9. She found that “the Defendants are now unable to meet their onus to demonstrate that the jury award compensated the Plaintiff for the same loss in respect of which the Defendants now claim an assignment of benefits.” Northbridge’s Appeal [27] As discussed above, Northbridge appealed the trial judge’s rulings respecting the assignment of benefits to this court. In its Supplementary Notice of Appeal, Northbridge claimed “a total assignment of future SABS payable” to Mr. El‑Khodr from his insurer, including all SABs payable for future healthcare expenses that the trial judge had denied. Northbridge argued that the approach taken by the trial judge effectively allowed double recovery and took the position that the “silo” approach to the assignment of accident benefits should be taken. [28] Mr. El-Khodr took the position that the matching approach should be followed and that “[t]he trial judge granted the assignments which she was able to match with the jury verdict, and denied those which she could not match for each collateral benefit listed in Section 267.8 of the Insurance Act ”. This was in accordance with the approach adopted by this court in Bannon v. McNeely . The Minutes of Settlement [29] After the Assignment Appeal was argued in April 2017 but before the decision was rendered in September, Mr. El-Khodr was scheduled to proceed to arbitration before the Financial Services Commission of Ontario against Royal in relation to attendant care benefits and a rent subsidy. The value of the rent subsidy in dispute was estimated at $50,468. Northbridge was added as an interested party by virtue of its standing as assignee of the attendant care benefits. [30] On June 30, 2017 counsel for Mr. El-Khodr sent two emails to opposing counsel which read as follows: To be clear, we are not asking Northbridge to forfeit its appeal. On the contrary, the outcome of the appeal determines who gets the monies that you are going to be holding in trust. We do, however, expect these Minutes to settle all issues between Northbridge and [Mr. El-Khodr] going forward . [A]s this settlement is intended to resolve all outstanding issues between the parties, subject only to the outcome of the appeal , I'm not sure how this comes out of left field for Northbridge. This was the point of the “winner take all” figures that we had agreed upon. [Emphasis added.] [31] Later that day, the Minutes of Settlement were signed with Mr. El-Khodr’s accident benefits’ insurer, Royal, which addressed medical and rehabilitation benefits. [32] Paragraph 4 of the Minutes of Settlement reads as follows: The sum of $385,000.00, payable under paragraph 3 hereof, shall be payable to [Northbridge’s counsel] HUGHES AMYS LLP IN TRUST for the benefit of both Applicants herein, pending release of the decision of the Court of Appeal for Ontario in El-Khodr v. Lackie , court file number C60918, which appeal was argued on April 4, 2017, decision reserved. The following applies upon receipt of the Court of Appeal’s decision: (a) in the event that the appeal with respect to Justice Roccamo’s refusal to grant an assignment of medical and rehabilitation benefits to Northbridge is dismissed by the Court of Appeal, the sum of $385,000.00 held in trust by HUGHES AMYS LLP shall be released forthwith to Mr. El-Khodr, by cheque made payable to [Mr. El-Khodr’s counsel] CONNOLLY OBAGI LLP IN TRUST; (b) in the event that the said appeal is allowed and an assignment of Mr. El-Khodr’s entitlement to medical and rehabilitation benefits is granted to Northbridge, the sum of $385,000.00 held in trust by HUGHES AMYS LLP shall be released forthwith to the Applicant, Northbridge. C. Disposition of the Assignment Appeal [33] This court rendered its judgment in the Assignment Appeal on September 19, 2017. The court allowed the appeal, and amended the trial judge’s order so that Royal’s future payments to Mr. El-Khodr for medication and assistive devices up to a total of $82,429.00 (i.e., the amount the jury had awarded for medication and assistive devices) and future payments for specified professional services up to a total of $424,550.00 (i.e., the amount the jury had awarded for professional services) be assigned to Northbridge. [34] In so doing, MacFarland J.A. held, at paras. 60-61 and 75-80, that: The court is required only to match statutory benefits that fall generally into the “silos” created by s. 267.8 of the Insurance Act with the tort heads of damage. Income awards are to be reduced only by SABs payments in respect of income loss and health care awards only by SABs payments in respect of health care expenses. The latter item is, I suggest, deliberately broad enough to cover all manner of expenses that relate to health care and would include medications, physiotherapy, psychology sessions, assistive devices and the like. All manner of other expenses that are covered by SABs and that do not fall under the income category or the health care category fall into the “other pecuniary losses” category. [A]lthough the legislation requires us to match apples with apples, the relevant categories of “apples” are the statute’s categories, not the common law’s…. All of the claims in this case that make up the awards for future professional service and future medication and assistive devices were itemized sufficiently and all were covered by the SABs schedule . They were claimed from the date of trial to the end of the respondent’s life – the same period that the SABs will cover. The Cost of Future Care schedules on which the respondent advanced his case before the jury and that were made exhibits, set out the respondent’s claims in detail. This was not a lump sum award for future care. The jury awarded an amount for future attendant care/assisted living, a separate amount for future professional services and separate amounts for future housekeeping/home maintenance and for future medication and assistive devices. The respondent did not recover all of the amounts that he had claimed. For example, he advanced a claim for the cost of future professional services in the amount of $637,125 and the jury awarded $424,550. But it is for the jury to say what the proper amount of compensation is for a plaintiff. And once the judgment based on that award is paid, a plaintiff has been fully compensated for his loss. This plaintiff was paid the full amount of his judgment on August 10, 2015, and has, therefore, been fully compensated in respect of all his losses arising from this motor vehicle accident. If there is no trust or assignment in respect of the SABs to which he will be entitled and which he will receive in the future for medication, assistive devices and professional services, he will be over-compensated and his receipt of any such benefits with no obligation to account to the tort insurer will constitute double recovery – a result this legislative scheme was specifically designed to avoid. In my view, the trial judge erred in not ordering that there be an assignment in relation to the awards for the cost of future medication and assistive devices and future professional services . I would set aside paragraphs 3 and 4 of the trial judge’s order of August 26, 2015 and in their place order that any amounts for future medication and assistive devices payable by RSA Insurance to the respondent be assigned to Northbridge Commercial Insurance Corporation until the sum of $82,429 has been received; and that any amounts for future professional services payable by RSA to the respondent for psychological, physiotherapy, occupational therapy, massage therapy, kinesiology/personal training, case management services, and travel to medical or other specialist be assigned to Northbridge Commercial Insurance Corporation until the sum of $424,550 has been received.… [Emphasis in original omitted. Emphasis added] [35] In arriving at this conclusion, she held, at para. 35, that, “strict qualitative and temporal matching requirements should not be applied to s. 267.8” and the court should instead “match benefits that will be received after trial to the broad, enumerated statutory categories only in a general way”. [36] After the Assignment Appeal was rendered, the appellant brought an application to the Superior Court to interpret para. 4 of the Minutes of Settlement in light of this court’s decision. D. The Application Judge’s Order [37] On the application, Mr. El-Khodr took the position that the $385,000 held in trust did not need to be paid to either himself or Northbridge in its entirety. Although he conceded that he did not win the appeal, he argued that para. 4(b) of the Minutes of Settlement did not apply because this court ordered that only some, but not all, of his future medical and rehabilitation benefits were assigned to Northbridge. [38] The application judge recognized that, at the time of the Assignment Appeal, there were two lines of authorities with respect to the assignment of accident benefits: the “matching” approach which requires that the tort award match the benefits sought to be assigned and the “silo” approach that requires no matching but simply that the benefits fall within the category of benefit, in this case, the health care category. She held at paras. 27 to 35 of her reasons that, I take Mr. El-Khodr’s point that Northbridge’s supplementary notice of appeal requested “a total assignment of future SABS benefits” and that Northbridge’s appeal factum said that it was seeking “an Assignment of all future ‘health care expenses’…” While more precision might have been applied to both phrases, it is evident from reading the two documents in their entirety that Northbridge was appealing the trial judge’s refusal to grant Northbridge an assignment of Mr. El-Khodr’s entitlement to future benefits for medication and assistive devices and for professional services, the benefits referred to in paragraphs 3 and 4 of the trial judge’s order. When the minutes of settlement were prepared and signed in June 2017, the scope of the appeal as it related to the assignment issue was not a mystery to the parties. The appeal had already been argued. The parties knew that if Northbridge was successful on the appeal, it would be awarded assignments of the future medical and rehabilitation benefits to which the trial judge, in paragraphs 3 and 4 of her August 26, 2015 order, had held it was not entitled . Mr. El-Khodr made the point that his $385,000.00 settlement of June 30, 2017 included amounts for benefits that were not ultimately assigned to Northbridge by the Court of Appeal, including a rent subsidy. He argued that it would be unfair for Northbridge to receive the entire amount of the settlement when the assignment it was granted by the Court of Appeal was related only to certain specified benefits. I do not accept this argument because, as I have already observed, Mr. El-Khodr was aware of the scope of the appeal when he signed the minutes of settlement. Mr. El-Khodr also knew, when he signed the minutes of settlement, that the winner of the appeal would receive the entire amount of the settlement. This is evident from the wording of the minutes of settlement and also from an email exchange dated June 30, 2017 between Mr. El-Khodr’s lawyer and the lawyer who was then representing Northbridge . In terms of fairness, as MacFarland J.A. observed at para. 78 of the Court of Appeal’s decision, Mr. El-Khodr was paid the full amount of his judgment in August 2015 and was therefore fully compensated in respect of all of his losses arising from his motor vehicle accident. Further, the amount the jury awarded, and that Northbridge paid to Mr. El-Khodr, for future medication and assistive devices ($82,429.00) and future professional services ($424,550.00) exceeded the amount of the $385,000.00 settlement by $121,979.00. For these reasons, I also reject Mr. El-Khodr’s argument that paragraph 4 of the minutes of settlement was frustrated by the outcome of the appeal. [39] The application judge concluded that, “Northbridge was wholly successful on the appeal.” The application judge therefore decided that the $385,000 attributable to Mr. El-Khodr’s medical and rehabilitation benefits paid by Royal should be released to Northbridge. THE POSITIONS OF THE PARTIES ON THIS APPEAL [40] Mr. El-Khodr renews his argument that the Assignment Appeal did not trigger the payment of $385,000.00 to either party because both conditions in the Minutes were not met: (a) Northbridge’s appeal was allowed, but (b) the assignment of all future medical and rehabilitation benefits to Northbridge was not granted. Mr. El-Khodr submits the provision in the Minutes of Settlement was therefore frustrated. [41] Mr. El-Khodr claims the application judge’s determination rendered the second precondition meaningless and, in doing so, she committed an extricable error of law. Moreover, he claims the finding that Northbridge received what it sought on appeal constitutes a palpable and overriding error of fact. Mr. El-Khodr therefore seeks an order that the remaining settlement monies be apportioned in accordance with the value of the SABs assigned and not the value of all SABs both assigned and not assigned in the Assignment Appeal. [42] Northbridge does not dispute that it was seeking a total assignment of all “health care expenses” and advocating for the “silo” approach. However, Northbridge submits that the request for “a total assignment of future SABS benefits payable to the Plaintiff by [Royal]” in the relevant notice of appeal was only in respect of the trial judge’s refusal to award an assignment of future entitlement to medical benefits specifically for future medication and assistive devices and professional services. There were no other medical and or rehabilitation benefits that could possibly have been assigned to Northbridge pursuant to the judgment below and the issues raised on appeal. On this basis, the conditions set out in para. 4(b) of the Minutes of Settlement were met and properly given effect by the trial judge. STANDARD OF REVIEW [43] The issue in this appeal turns upon the interpretation of a contract. The appellant must establish a palpable and overriding error of fact or an extricable error of law. Such errors 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: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 52-53. [44] The court must interpret the contract as a whole and assign meaning to its terms. The Court must avoid rendering one or more of those terms ineffective. To do so, constitutes an extricable error of law justifying appellate intervention. Environs Wholesale Nursery LTD. v. Environs Landscape Contracting LTD. , 2019 ONCA 547, at para 44; 3113736 Canada Ltd. v. Cozy Corner Bedding Inc. , 2020 ONCA 235, 150 O.R. (3d) 83, at para. 34; Angus v. Port Hope (Municipality) , 2017 ONCA 566, 28 E.T.R. (4th) 169, at paras. 66-67 and 109-110, leave to appeal refused, [2017] S.C.C.A. No. 382. ANALYSIS AND CONCLUSION [45] The issue on this appeal is whether the application judge made a palpable and overriding error of fact or an error of law in interpreting the words in the Minutes of Settlement: “in the event that the said appeal is allowed and an assignment of Mr. El-Khodr’s entitlement to medical and rehabilitation benefits is granted to Northbridge”. [46] In my view, the application judge was correct to hold that the terms of the Minutes of Settlement were satisfied and the contract was not frustrated because: a) Although Northbridge spoke of “an Assignment of all future ‘health care expenses’” in its factum, the only issue on the Assignment Appeal was the assignment of Mr. El-Khodr’s entitlement to future benefits for medications and assistive devices and for professional services, referred to in paras. 3 and 4 of the trial judge’s order. These were the only benefits at issue on appeal. The words “entitlement to medical and rehabilitation benefits” in the Minutes of Settlement must be interpreted in this context; b) The parties understood, when the Minutes of Settlement were signed, that as a result of the Assignment Appeal, these benefits would either be assigned to Northbridge or the trial judge’s decision not to assign these benefits would be upheld; c) This court amended the trial judge’s order denying the assignment of these benefits and replaced paras. 3 and 4 with a paragraph “ordering that any amounts for future medication and assistive devices” and “ any amounts for professional services benefits” (emphasis added) as enumerated, up to the amount of the jury awards, be assigned. This court also held that only the categories set out in the statute need be matched; d) Although Mr. El-Khodr submitted to the application judge that the $385,000 amount in the Minutes of Settlement included a rent subsidy in the amount of $50,468 which was not covered by these benefits, Mr. El-Khodr was aware (a) that this was a full and final settlement subject only to the outcome of the Assignment Appeal and (b) the Assignment Appeal was only in respect of future medication and assistive device and professional services. This understanding is also reflected in his counsel’s email communications with opposing counsel; and, e) Contrary to the suggestion made by counsel for Mr. El-Khodr, the application judge did not order the assignment of all settlement amounts for these benefits. She only assigned medical and rehabilitation benefits in the amount of $385,000 as per the Minutes of Settlement. Mr. El-Khodr was awarded and paid $82,429 for future medication and assistive devices and $424,550 for professional services before the settlement was reached. Those sums exceed the $385,000 settlement amount for medical and rehabilitation benefits set out in the Minutes of Settlement by $121,979. [47] For these reasons, I do not agree with the appellant’s argument that the outcome of the Assignment Appeal was not contemplated by the parties at the time they entered the Minutes of Settlement and, thus, the settlement agreement was frustrated. [48] The application judge’s interpretation is consistent with the reasoning of this court on the Assignment Appeal. When assigning the medication and assistive devices and professional services benefits to Northbridge up to the amount of the jury award, this court recognized, at paras. 78-79, that: [I]t is for the jury to say what the proper amount of compensation is for a plaintiff. And once the judgment based on that award is paid, a plaintiff has been fully compensated for his loss. This plaintiff was paid the full amount of his judgment on August 10, 2015, and has, therefore, been fully compensated in respect of all his losses arising from this motor vehicle accident. If there is no trust or assignment … he will be over-compensated and his receipt of any such benefits with no obligation to account to the tort insurer will constitute double recovery – a result this legislative scheme was specifically designed to avoid. [49] Moreover, the panel hearing the appeal in this case in 2017, held that “strict qualitative and temporal matching requirements should not be applied” in deciding which benefits to assign, the relevant categories are “the statute’s categories not the common law’s” and the strict matching approach in Bannon v. McNealy “may no longer be good law in this province”. DISPOSITION [50] For these reasons, I find the application judge did not fail to take into account a precondition in the Minutes of Settlement and thereby make an error of law, nor did she make a palpable and overriding error of fact in construing the preconditions for payment to Northbridge in the Minutes of Settlement. I would therefore dismiss the appeal. [51] In accordance with the agreement reached by the parties, costs of the appeal to the respondent in the amount of $7,500. Released: June 21, 2021 “D.D.” “J.A. Thorburn J.A.” “I agree. Doherty J.A.” “I agree. S.E. Pepall 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. G.C., 2021 ONCA 441 DATE: 20210621 DOCKET: C67883 Doherty, Trotter and Thorburn JJ. A. BETWEEN Her Majesty the Queen Respondent and G.C. Appellant Mark Ertel and Jon Doody, for the appellant Rebecca Schwartz, for the respondent Heard: June 4, 2021 by video conference On appeal from the convictions entered on September 18, 2019 by Justice Geoffrey Griffin of the Ontario Court of Justice. REASONS FOR DECISION The Issues [1] The appellant G.C. appeals his convictions for sexual assault involving three complainants, S.J., H.J. (together referred to as “the first two complainants”) and J.W. (“the third complainant”). The appellant was convicted of sexual assault and sexual exploitation of the first two complainants, and sexual assault of the third complainant. [2] The convictions turned on the trial judge’s assessment of the credibility of the complainants and the appellant when viewed in the context of the evidence as a whole, and the Crown’s obligation to prove the charges beyond a reasonable doubt. [3] The appellant claims that (a) the trial judge offended the rule in R. v. W.(D.) , [1991] 1 S.C.R. 742, by considering and accepting the complainants’ evidence before considering the appellant’s evidence; (b) he erred in rejecting the appellant’s evidence without providing a considered and reasoned acceptance of the evidence; and (c) he erred in relying on the absence of a proven motive as the basis to accept the third complainant’s evidence. The Trial Judge’s Reasons for Judgment [4] The trial judge gave detailed oral reasons for judgment. [5] At the outset, he explained the applicable standard and burden of proof, and the rule in W.(D.). He recognized that the key question is whether, on the evidence as a whole, the trier of fact is satisfied of the accused’s guilt beyond a reasonable doubt. [6] In conducting his analysis of the evidence, the trial judge reviewed each complainant’s evidence as well as the evidence of the other crown witnesses including other family members and an employee of the Children’s Aid Society, the points raised by the defence, and he explained why he accepted each complainant’s evidence. [7] Before considering the appellant’s evidence, the trial judge cautioned himself that “the acceptance of the evidence of the complainants by no means ends the matter as it is essential that the evidence of [the appellant], as well as all the defence evidence, should be assessed in light of the whole of the evidence” to determine whether he was left with a reasonable doubt. He then reviewed the appellant’s evidence, separately laying out the appellant’s evidence respecting the allegations of each complainant. [8] In respect of the allegations made by the first two complainants, the trial judge recognized that the appellant was under no obligation to prove anything and that “the fundamental concepts of onus of proof” and proof beyond a reasonable doubt must be considered. He also held there was no specific aspect of the appellant’s evidence that caused him to disbelieve the appellant. However, when he considered the appellant’s evidence in the context of all the evidence and contrasted it with these complainants’ testimony, he concluded that both complainants were telling the truth and that he had “no reasonable doubt about the charges at all” (save for one that was dismissed and is not the subject of this appeal). He was therefore satisfied beyond a reasonable doubt that the appellant was guilty of sexually assaulting and sexual exploitation of the first two complainants. [9] The trial judge accepted the evidence of the third complainant, rejected the appellant’s evidence, and was satisfied beyond a reasonable doubt that the appellant sexually assaulted her. He found the appellant’s evidence respecting this allegation to be “problematic”, as parts of his evidence were inconsistent or “contrary to common sense”. He also found the appellant’s reaction to the allegation troubling. In contrast, he found the complainant’s actions in the face of the alleged assaults to be logical, and held that it would have made no sense for her to sabotage her living arrangements with the appellant and his spouse, which she sought out and enjoyed, by making a false allegation and concluded that the complainant’s testimony about the appellant’s apology to her had “the ring of truth.” Analysis and Conclusion [10] In cases such as this, the Supreme Court of Canada has recently cautioned that appellate courts “must not finely parse the trial judge’s reasons in search for error”: R. v. G.F. , 2021 SCC 20, at para. 69. The Court emphasized both the strong deference due to a trial judge’s credibility findings and the presumption that trial judges must be taken to know the law. The presumption applies with particular force when it comes to settled principles. As the Court said, at para. 75 of G.F ., “trial judges do not need to provide detailed maps of well-trod paths”. The Court further observed, at paras. 76-79, that reasons which are “imperfect” or language which is “ambiguous” does not per se require allowing an appeal. [11] The issues raised by the appellant all relate to the proper application of bedrock legal principles and fall on the “well-trod” path referred to by the Supreme Court of Canada. [12] The trial judge’s reasons demonstrate an understanding of the presumption of innocence and the application of the burden of proof faced with irreconcilable versions of events. The trial judge referred to the three-step analysis laid down in R. v. W.(D.) early in his reasons and instructed himself on the applicable legal principles on at least three occasions. He succinctly and accurately put forward the defence – first, the appellant’s denials were sufficiently credible to at least raise a doubt; second, the complainant’s evidence was not sufficiently reliable to carry the burden of proof. [13] With one exception, the trial judge found the evidence of the first two complainants “totally believable”. However, the trial judge did not convict on the basis of that assessment, nor did he arrive at that conclusion without regard to the appellant’s evidence. While he candidly acknowledged that he could not point to anything in the appellant’s denial that would cause him to reject the appellant’s evidence regarding the first two complainants, he correctly observed the appellant’s evidence was not to be assessed in isolation, but rather in the context of the entirety of the evidence, including but not restricted to that of the complainants. [14] The trial judge concluded that on the totality of the evidence, bearing in mind the onus of proof, he believed the first two complainants, beyond any reasonable doubt. His reasons provide a considered and reasoned explanation for accepting the complainants’ evidence and his conclusion that he was satisfied beyond a reasonable doubt of the appellant’s guilt. [15] As noted in R. v. R.A. , 2017 ONCA 714, 421 D.L.R. (4th) 100, at para. 55, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307, an accused person is not entitled to an acquittal simply because his evidence does not raise any obvious problems. His evidence may be rejected “based on considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” which may provide “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”: R. v. J.J.R.D. (2006) , 218 O.A.C. 37 (C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69. This is what the trial judge did in this case. [16] With respect to the third complainant, the trial judge accepted the third complainant’s evidence and gave reasons for rejecting the appellant’s evidence regarding the third complainant’s allegation. [17] The appellant claims the trial judge erred in treating the evidence of the third complainant as demonstrating that she had no motive to fabricate. The appellant argues this was not a case of proved absence of motive, but rather a case of the absence of evidence of a motive to fabricate. [18] In our view, the trial judge’s observation that the third complainant “appears to have no motive to make false allegation” was not a finding that the Crown had proved there was no motive, as the appellant suggests, but rather that the third complainant had no apparent motive to fabricate her evidence. It was open to the trial judge to make that finding and take it into account when assessing the third complainant’s credibility. In any event, the trial judge’s consideration of whether she had a motive to fabricate appears to have played a very minor role in his credibility assessment. [19] For these reasons, we dismiss the appeal. “Doherty J.A.” “Gary Trotter J.A.” “J.A. Thorburn J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the 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.R., 2021 ONCA 449 DATE: 20210621 DOCKET: C68339 Miller, Paciocco and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and J.R. Appellant Lindsay Daviau and Rameez Sewani, for the appellant Jennifer Trehearne, for the respondent Heard: June 16, 2021 by video conference On appeal from the convictions entered on September 20, 2019 by Justice Terrence L. J. Patterson of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] J.R. was convicted after a jury trial of sexual offences committed against his two young daughters. [2] The Crown concedes that J.R.’s appeal of his convictions must be allowed. The Crown agrees that, in the absence of a similar fact application by the Crown, given the charges before the court the trial judge was obliged to instruct the jury not to engage in cross-count reasoning. He failed to do so and instructed the jury that lines of cross-count reasoning were permissible. He also failed to give the jury a required instruction not to engage in propensity reasoning. [3] We are satisfied that these errors occurred, and that they require J.R.’s convictions to be set aside. We need not address the other grounds of appeal that J.R. raises, which the Crown contests. [4] The appeal is allowed, the convictions are set aside, and a new trial is ordered. “B.W. Miller J.A.” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Johnson v. Ontario, 2021 ONCA 443 DATE: 20210618 DOCKET: M52550 (C69417) Brown J.A. (Motions Judge) BETWEEN Glenn Johnson, Michael Smith, and Timothy Hayne Plaintiffs (Respondents) and Her Majesty the Queen in Right of Ontario Defendant (Respondent/Responding party) Proceeding under the Class Proceedings Act, 1992, S.O. 1992. c. 6 Nancy S. Barkhordari, Nital S. Gosai, and Mirilyn R. Sharp, for the moving party/appellant, Donald Parker, class member Sarah Pottle and Rita V. Bambers, for the responding party, Her Majesty the Queen in Right of Ontario Heard: June 17, 2021 by video conference ENDORSEMENT [1] The appellant, Donald Parker, a class member in a class proceeding defended by the respondent, Her Majesty the Queen in Right of Ontario (“Ontario”), appeals an order of Grace J. dated April 16, 2021 that denied him an extension of time to opt out of the class proceeding. He moves for two orders. [2] First, he seeks an extension of time to perfect his appeal until June 30, 2021. Ontario does not oppose his request. Accordingly, an order shall go extending the time for Mr. Parker to perfect his appeal to June 30, 2021. [3] Second, Mr. Parker seeks an order that he be permitted to include in his appeal book and compendium (“ABC”) a short affidavit from one of his counsel who appeared at the hearing before Grace J. The request is an unusual one, so a bit of background is required. [4] The motion hearing before Grace J. was not recorded, in accordance with the general practice of the Superior Court of Justice. In the course of preparing the appeal materials, appellant’s counsel sought to obtain a recording of the motion hearing to prepare a transcript and were advised that none existed. [5] As a result, the appellant wishes to include in his ABC an affidavit from Nital S. Gosai (the “Affidavit”), one of his counsel who was present at the hearing. The Affidavit sets out her recollection of an exchange between the motion judge and her co-counsel during the motion hearing. The material part of the proposed Affidavit reads as follows: 3. This Affidavit was prepared based on my independent recollection of what transpired at the hearing on April 15, 2021 and is limited to the comments made at the outset of the hearing that are relevant to Mr. Parker’s Appeal. 4. Within less than four minutes of the commencement of the hearing, Justice Grace interrupted the submissions of Ms. Barkhordari to ask various questions concerning the evidence of when Mr. Parker discovered his cause of action. Before Ms. Barkhordari had an opportunity to respond to Justice Grace’s questions, His Honour specifically cautioned Ms. Barkhordari to “be careful how you answer that question on the record” as her answer could according to Justice Grace, detrimentally affect the limitation argument in Mr. Parker’s individual action. 5. Following this stern warning from Justice Grace, Ms. Barkhordari asked Mirilyn Sharp, a class action lawyer who had been assisting Ms. Barkhordari with the arguments for the motion, to take over the submissions to be made on behalf of Mr. Parker, which she did. [6] Ontario does not dispute the accuracy of these statements. However, Ontario submits that the Affidavit should not find its way into the appellant’s ABC for several reasons: (i) no ground of appeal asserts procedural unfairness, therefore there is no need to understand how the hearing was conducted; (ii) submissions on a motion do not fall within the categories of documents that r. 61.10(1) of the Rules of Civil Procedure requires in an ABC; and (iii) counsel’s recollection of a colloquy between judge and counsel is not relevant to any issue on this appeal. [7] The motion judge gave detailed reasons for his decision refusing Mr. Parker’s request for an extension of time. Those reasons no doubt will be the focus of the panel’s attention. Absent a ground of appeal asserting procedural unfairness, what transpired during a hearing between the court and counsel usually plays little role on the determination of an appeal. As this court observed in R. v. Smith (2001) , 154 O.A.C. 51, (C.A.), at para 45, leave to appeal refused, [2002] S.C.C.A. No. 156: [I]t is generally neither appropriate nor possible to draw inferences concerning a trial judge's reasons for a ruling based on colloquy with counsel. Trial judges routinely probe submissions to test the viability of various avenues of decision. Particularly where comprehensive reasons are given there is no basis for going behind a trial judge's reasons. [8] In their helpful written submissions, counsel advanced detailed arguments about the relevance, or lack of relevance, of the in-court colloquy between the court and counsel. I see no need to express a view about the relevance of the contents of the Affidavit as I think r. 61.10(1)(i) permits what the appellant seeks to do. An affidavit of counsel’s recollection of what transpired at a motion hearing certainly is not an “excerpt[] from a transcript of evidence” (r. 61.10(1)(g)) or an “exhibit” (r. 61.10(1)(h)), but it strikes me as arguably falling within the category of “any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum”, as identified in r. 61.10(1)(i). [9] It is not the practice of this court to consider, in advance of the hearing of an appeal, whether any specific document included in an ABC is relevant or not. A panel ultimately forms its own view about the relevance or utility of any such document, such as the Affidavit the appellant proposes to include. If a party includes irrelevant documents in an ABC, it is open to the panel to sanction that practice by an award of costs against the offending party. [10] For these reasons, I conclude that r. 61.10(1)(i) permits the appellant to include the Affidavit in his ABC, if he thinks fit to do. [11] The appellant seeks his costs of this motion on a substantial indemnity basis in the amount of $7,000. Ontario submits there should be no costs. [12] I would observe that this motion is characteristic of far too many civil motions brought in this court. Which is to say, it is characteristic of the type of procedural motion – the contents of an ABC – that counsel, acting reasonably, should be able to settle without consuming judicial time. [13] In the circumstances, I fix the costs of the motion at $1,500, inclusive of disbursements and applicable taxes. I leave the determination of which party is the payor and which is the payee to the panel hearing the appeal. “David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Loan Away Inc. v. Facebook Canada Ltd., 2021 ONCA 432 DATE: 20210618 DOCKET: C67908 Fairburn A.C.J.O., Harvison Young and Jamal JJ.A. BETWEEN Loan Away Inc. Applicant/Responding Party (Appellant) and Facebook Canada Ltd. and Facebook, Inc. Respondents/ Moving Party ( Respondent ) Michael Crampton, for the appellant Miranda Spence, for the respondent Philip Underwood, for Facebook Canada Ltd., making no submissions Heard: June 7, 2021 by video conference On appeal from the order of Justice Andra Pollak of the Superior Court of Justice, dated December 16, 2019. Jamal J.A.: Introduction [1] The appellant, Loan Away Inc. (“Loan Away”), appeals from the order of the motion judge dated December 16, 2019. In that order, the motion judge stayed Loan Away’s application before the Ontario Superior Court seeking injunctive relief and a damages reference as against the respondent, Facebook, Inc. (“Facebook”), for having suspended Loan Away’s advertising on Facebook’s online social network (“Facebook Service”). The motion judge stayed the application because a forum selection clause in Facebook’s “Terms of Service” provided that any disputes would be resolved exclusively before the California courts under California law. The motion judge also refused Loan Away’s request to adjourn the stay motion. Loan Away claims that the motion judge erred in refusing the adjournment and staying its application. [2] For the reasons that follow, I would dismiss the appeal. Background [3] Loan Away is a commercial online lender doing business across Canada. A large part of its business came from advertising on the Facebook Service. [4] Facebook is a global technology company incorporated in Delaware with its head office in Menlo Park, California. As a condition of signing up for a Facebook account, users of the Facebook Service must agree to Facebook’s “Terms of Service”. Section 4(4) of the Terms of Service, “Disputes”, contains forum selection and governing law clauses providing that any disputes with commercial (i.e., non‑consumer) users of the Facebook Service must be resolved exclusively before the U.S. District Court for the Northern District of California or a state court in San Mateo County and under California law: We try to provide clear rules so that we can limit or hopefully avoid disputes between you and us. If a dispute does arise, however, it’s useful to know up front where it can be resolved and what laws will apply. If you are a consumer, the laws of the country in which you reside will apply to any claim, cause of action, or dispute you have against us that arises out of or relates to these Terms or the Facebook Products (“claim”), and you may resolve your claim in any competent court in that country that has jurisdiction over the claim. In all other cases, you agree that the claim must be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, that you submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim , and that the laws of the State of California will govern these Terms and any claim, without regard to conflict of law provisions . [Emphasis added.] [5] Commercial users such as Loan Away must reaffirm that they accept Facebook’s Terms of Service each time they buy advertising from Facebook. Commercial users are also subject to “Commercial Terms” providing substantively the same forum selection and choice of law clauses. [6] In October 2018, Facebook suspended Loan Away’s advertising on the Facebook Service. Loan Away tried, without success, to resolve the issue by writing to Facebook Canada Ltd. (“Facebook Canada”), a Canadian company related to Facebook. In late December 2018, Loan Away began an application before the Ontario Superior Court against Facebook Canada for injunctive relief requiring Facebook Canada to accept Loan Away’s advertising and for a damages reference. [7] In late January 2019, Facebook Canada served its responding materials, claiming that Facebook alone operates the Facebook Service and that Facebook Canada could not grant the relief that Loan Away sought. [8] In late April or May 2019, Loan Away amended its application to add Facebook as a respondent. Although Facebook Canada remains a named respondent, Loan Away now seeks no relief as against it. [9] Around the same time, Facebook served its notice of motion asking the court to stay Loan Away’s application as against it based on the forum selection clause. [10] On the stay motion, which was returnable on Monday, December 16, 2019, Loan Away filed affidavits of a law clerk employed by Loan Away’s counsel addressing the litigation history leading up to the stay motion. On the Friday before the return of the stay motion, Facebook suspended Loan Away’s Facebook business page. [11] At the return of the motion, Loan Away asked for an adjournment to file new evidence about the suspension of its Facebook business page. Facebook opposed. The motion judge refused the adjournment, noting that while there had been “a related and perhaps very relevant event with respect to what ha[d] happened”, neither counsel was prepared to deal with the issue. She also noted that Loan Away’s application did not concern this issue. [12] The motion judge then granted Facebook’s stay motion. She noted that Loan Away did not dispute the enforceability of the forum selection clause and that the law favours enforcement of such clauses in commercial contracts. She stated that a stay should be granted unless Loan Away could show “strong cause” not to enforce the clause. The motion judge determined that Loan Away did not meet its burden of showing “strong cause” because: (1) this was a commercial contract; (2) Loan Away filed no evidence addressing the convenience of the parties, fairness between the parties, or the interests of justice; and (3) the application sought no relief as against Facebook Canada. She therefore stayed the application as against Facebook. Issues [13] Loan Away claims that the motion judge erred by refusing to adjourn the stay motion and in granting the stay. Discussion Issue #1: Did the motion judge err in refusing to adjourn the stay motion? [14] Loan Away’s first ground of appeal asserts that the motion judge erred in refusing to adjourn the stay motion despite finding that there was a very relevant event — the shutdown of Loan Away’s Facebook business page — that happened just before the motion. Loan Away says it should have been allowed to introduce new evidence about this event and the motion judge thus decided the stay motion on an incomplete record. [15] I do not accept this submission. [16] An appellate court can intervene with a motion judge’s discretionary decision on whether to grant an adjournment only if the discretion is not exercised judicially based on proper principles, after considering all relevant factors: Romanko v. Aviva Canada Inc. , 2018 ONCA 663, at para. 4; Estrada v. Estrada , 2016 ONCA 697, at para. 2. [17] No such error has been shown here. The motion judge was entitled to find that even though the shutdown of Loan Away’s Facebook business page related to the broader dispute raised in the application, she should proceed with the stay motion as scheduled. Loan Away’s application did not concern the shutdown of its business page and neither counsel was prepared to deal with this development. The motion judge was also entitled to find that the evidentiary record on the stay motion was complete and that no further evidence should be permitted at that late stage. In any event, evidence about the substantive legal issues underlying the dispute between the parties was not relevant to the motion to enforce the forum selection clause: Z.I. Pompey Industrie v. ECU-Line N.V. , 2003 SCC 27, [2003] 1 S.C.R. 450, at para. 31. I therefore see no basis for this court to intervene with the motion judge’s exercise of discretion to deny the adjournment. Issue #2: Did the motion judge err in granting a stay based on the forum selection clause? [18] Loan Away’s second ground of appeal asserts that the motion judge erred in enforcing the forum selection clause and staying Loan Away’s application. [19] The following legal principles govern the enforcement of a forum selection clause in the commercial or non-consumer context. [20] Forum selection clauses purport to oust the jurisdiction of otherwise competent courts in favour of a foreign jurisdiction. In commercial contexts, absent exceptional circumstances, forum selection clauses are generally enforced to hold sophisticated parties to their contractual bargain: Douez v. Facebook, Inc. , 2017 SCC 33, [2017] 1 S.C.R. 751, at para. 1. [21] Courts apply a two-step approach in determining whether to enforce a forum selection clause and stay an action brought contrary to it: 1. At the first step, the party seeking a stay must establish that the forum selection clause is valid, clear, and enforceable, and that it applies to the cause of action before the court. The court makes this determination based on the principles of contract law. The plaintiff may resist the enforcement of the forum selection clause by raising defences such as , for example, unconscionability, undue influence, or fraud. If the party seeking the stay establishes the validity of the forum selection clause, the onus shifts to the plaintiff: Douez , at paras. 28-29; Pompey , at para. 39 . 2. At the second step, the plaintiff must establish “strong cause” not to enforce the forum selection clause. A court exercising its discretion at this step must consider all the circumstances, including the convenience of the parties, fairness between the parties, the interests of justice, and public policy. The list of “strong cause” factors is not closed and provides a court with some flexibility in exercising its discretion. In the commercial context, the “strong cause” factors have been interpreted and applied restrictively. Forum selection clauses are encouraged and generally enforced because they promote order and fairness by providing stability and foreseeability to international commercial relations: Douez , at paras. 29-31; Pompey , at paras. 19, 30-31; and GreCon Dimter inc. v. J.R. Normand inc. , 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 22. [22] Both before the motion judge and this court, Loan Away accepted that the forum selection clause in Facebook’s Terms of Service is valid, clear, and enforceable. It thus accepted that the first step was met. [23] Instead, Loan Away asserts that the motion judge made essentially three errors at the second step. [24] First, Loan Away asserts that there is a prima facie injustice in allowing Facebook to rely on a forum selection clause when the relief Loan Away seeks is straightforward. Loan Away claims it should not have to sue in California just to learn why Facebook has a problem with its advertising. Loan Away says that if Facebook explains the problem, Loan Away can fix it. [25] I do not accept this submission. Loan Away’s application does not simply seek to understand why Facebook has suspended its advertising. It also seeks injunctive relief as against Facebook and a damages reference. If Loan Away seeks such relief, it must sue in California, as agreed in the Terms of Service. [26] Second, Loan Away asserts that the motion judge failed to consider that, as a result of her ruling, Loan Away must now sue Facebook in California and Facebook Canada in Ontario. This multiplicity of proceedings, it claims, highlights the inconvenience and unfairness in enforcing the forum selection clause. [27] I disagree. The application seeks no relief as against Facebook Canada and at the hearing of the appeal Loan Away acknowledged that it has no contract with Facebook Canada. Loan Away cannot resist enforcement of the forum selection clause by invoking a multiplicity of proceedings arising because it has sued what appears to be an improper party. [28] Third, Loan Away asserts that there was “strong cause” not to enforce the forum selection clause because of the inequality of bargaining power between it and Facebook. Loan Away’s factum submits that Facebook is “an online giant that sets its own terms without negotiation, forcing small players such as Loan Away to either ‘take it or leave it’.” [29] I do not agree. Even in the consumer context, where gross inequality of bargaining power may be a relevant circumstance in the “strong cause” analysis, gross inequality of bargaining power is not in itself determinative: Douez , at para. 39. Here, the motion judge considered all the relevant circumstances of the case, including its commercial context, and concluded that Loan Away “ha[d] not led any evidence with respect to the inconvenience of the parties, fairness between the parties and the interests of justice.” She thus found that Loan Away had “not met its burden of proving to this court that there is ‘strong cause’ not to enforce the forum selection clause.” Those findings are unassailable on the record before the motion judge. I see no basis for this court to intervene. Disposition [30] I would dismiss the appeal with costs payable by Loan Away to Facebook in the amount of $7,500 all inclusive. Released: June 18, 2021 “J.M.F.” “M. Jamal J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Labrosse-Quinn, 2021 ONCA 444 DATE: 20210618 DOCKET: C68922 Feldman, Miller and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Shawn Labrosse-Quinn Appellant Karin S. Stein, for the appellant Andrew Hotke, for the respondent Heard: June 15, 2021 by video conference On appeal from the sentence imposed on December 29, 2020 by Justice Mitch Hoffman of the Ontario Court of Justice. REASONS FOR DECISION [1] Following the oral hearing of this sentence appeal, the court found that leave to appeal sentence would be granted but the appeal dismissed, and announced the result to counsel with reasons to follow. These are the reasons. [2] The appellant pleaded guilty to robbery and possession of stolen property. He was the getaway driver for two masked men who robbed a convenience store at knifepoint, taking cash, cigarettes, and lottery tickets. The two men did not tell the appellant they were planning to rob the store. However, the appellant admitted that once they returned to the vehicle he knew or was wilfully blind to the fact that they were robbing the store. They instructed the appellant to drive away, which he did. The appellant received stolen lottery tickets as payment, which he later cashed at various retail outlets. The appellant was identified as a result of cashing the lottery tickets. [3] The sentencing judge imposed a six-month sentence and 18 months’ probation. [4] The appellant appeals his sentence on the basis that (1) the sentence was disproportionate because  the sentencing judge misconstrued the appellant’s role in the offences and imputed a higher level of moral culpability than warranted; and (2) the sentencing judge erred in not imposing a conditional sentence or intermittent sentence, and his reasons for so doing effectively established a mandatory minimum sentence for convenience store robberies. [5] For the reasons below, we do not agree that the sentencing judge erred. Assessment of moral culpability [6] First, the appellant argues that the sentencing judge wrongly imputed to the appellant knowledge of the robbery that he did not have, resulting in the sentencing judge elevating the appellant’s moral culpability. We do not agree. The sentencing judge’s reasons, as well as the transcript of the guilty plea, demonstrate that the sentencing judge well understood the limited nature of the appellant’s knowledge of, and involvement in, the robbery. The appellant’s guilty plea established that  when the two men returned to the vehicle with the lottery tickets, cigarettes, and cash, he knew or was wilfully blind to the fact that they had robbed the store. It is inherent in the nature of the offence of robbery that it involves coercion. The appellant had to have known from the nature of the items taken that they would not have been accessible to the two men on open shelves and could only have been obtained through some measure of coercion of the store clerk. The sentencing judge accepted, however, that the appellant would not have known that the men had threatened the clerk with a knife. The sentencing judge expressly acknowledged that the appellant’s involvement in the robbery began only after his acquaintances had returned to the vehicle. The appellant was faulted for his decision to provide the means of escape, and for accepting the stolen lottery tickets as payment. [7] At the sentencing hearing, counsel for the appellant submitted that the appropriate range for the offences was 3 – 6 months. Accordingly, it is difficult to now take the position that 6 months is disproportionate and excessive. We are not persuaded by the submission that parity with R. v. Gray , 2021 ONCA 86, mandates a lesser sentence. There were relevant differences between the appellant and the offender in Gray that justify different treatment, notably the application of Gladue principles in Gray and Gray’s positive steps towards rehabilitation post-conviction. Additionally, the appellant has the added conviction for possession of stolen property. In any event, the sentence imposed is not outside the relevant range. Conditional or intermittent sentence [8] The sentencing judge expressly considered whether to impose a conditional sentence or an intermittent sentence. The sentencing judge noted the appellant’s age and that this was his first conviction for a criminal offence. He ultimately decided against a conditional or intermittent sentence based on the degree of the appellant’s moral culpability and the need for deterrence and denunciation of this type of crime. We do not agree with the submission that in so deciding the sentencing judge overemphasized deterrence and denunciation, or thereby categorically established a mandatory minimum for convenience store robberies. The sentencing judge was attentive to the particulars of the appellant’s actions and personal circumstances, was guided by all the relevant principles of sentencing and came to a sentence that was open to him. The appellant has not identified any error in principle that that would permit this court to interfere with the sentence imposed: see R. v. Lacasse , 2015 SCC 64, para. 11. Disposition [9] Leave to appeal sentence is granted and the appeal of sentence is dismissed. “K. Feldman J.A.” “B.W. Miller J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Berman v. Berman, 2021 ONCA 439 DATE: 20210617 DOCKET: C68897 Gillese, Tulloch and Roberts JJ.A. BETWEEN Yakov Eitan Berman Appellant and Alissia Berman Respondent Aaron Franks, Michael Zalev and Courtney Wile, for the appellant Dani Z. Frodis and Arin Tint, for the respondent Heard and delivered orally: June 15, 2021 On appeal from the order of Justice Peter A. Douglas of the Superior Court of Justice, dated November 5, 2020, and from the costs order, dated December 1, 2020. REASONS FOR DECISION [1] The appellant father appeals from the dismissal of his motion to prevent the parties’ daughter from changing elementary schools and the motion judge’s costs order against him. The parties’ daughter has been raised in the Jewish faith. The respondent mother, the custodial parent with sole decision-making authority, wishes to enrol their daughter in the local Catholic school. [2] The appellant raises the same main issue on appeal as he argued before the motion judge: he says their daughter’s attendance at a Catholic school is in breach of paragraph 3 of the final order of Fryer J. that she be raised in the Jewish faith. Paragraph 3 reads as follows: “Eliana shall be raised in the Jewish faith, however, she shall not be prevented from participating in Catholic holidays with the respondent and her family.” [3] The motion judge rejected the appellant’s argument. He accepted that the respondent’s decision to change the daughter’s school was within the respondent’s sole decision-making authority and the daughter’s best interests in the circumstances that included the unchallenged facts that the daughter was being bullied at her present school and the local Catholic school was academically superior. Importantly, he also found that the respondent was committed to raising the daughter in the Jewish faith and had confirmed with the Catholic school that she would be exempt from attending religious instruction and practice. He did not accept the opinion proffered by the appellant’s expert because he found that the expert was unaware of the accommodations that the Catholic school was prepared to make which, significantly, the motion judge included in his order. As a result, he found no breach of paragraph 3 of Fryer J.’s order. He ordered the appellant to pay the respondent costs of $4,500. [4] We see no error warranting appellate intervention. The motion judge carefully considered the evidence before him. He was not required to accept the expert’s opinion and explained why he did not. Absent reversible error, it is not this court’s role to reweigh the evidence, as the appellant is inviting us to do. Similarly, we see no error in the motion judge’s costs award, which was reasonable, fair and proportionate. [5] Accordingly, the appeal is dismissed. [6] As agreed, the respondent is entitled to her costs of the appeal, fixed at $7,500, all inclusive, payable by the appellant within 90 days. “E.E. Gillese J.A.” “M. Tulloch J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hart v. Fullarton, 2021 ONCA 438 DATE: 20210617 DOCKET: M52515 Brown J.A. (Motions Judge) BETWEEN Melissa Hart Applicant (Moving Party) and Kevin Fullarton Respondent (Responding Party) Melissa Hart, acting in person Steve Benmor, for the responding party Heard: June 15, 2021 by video conference ENDORSEMENT OVERVIEW [1] The applicant, Melissa Hart, who is self-represented, seeks an order extending the time to file a notice of appeal from that part of the November 5, 2020 order of Nakonechny J. (the “Final Order”) which dismissed her application for spousal support. Ms. Hart does not seek to appeal that part of the Final Order which, in essence, declared her to be a vexatious litigant under s. 140(1) of the Courts of Justice Act , R.S.O. 1990, c. C.43 (“ CJA ”). BACKGROUND [2] By application issued October 15, 2019, Ms. Hart applied in the Superior Court of Justice for retroactive and ongoing spousal support from the respondent, Kevin Fullarton. A one-day trial was held before Nakonechny J. on October 29, 2020. In paras. 1-3 of her reasons, the trial judge identified the issues for her determination: The Applicant, Melissa Hart, seeks retroactive and ongoing spousal support from the Respondent, Kevin Fullarton, under Part III of the Family Law Act . The Applicant’s Application issued October 15, 2019, also contained a claim for an interest in the property known municipally as Unit 502-245 Dalesford Road, Toronto, owned solely by the Respondent. The Applicant withdrew this claim at the commencement of trial. The Respondent asks that the Applicant’s claim for spousal support be dismissed, for a finding that the Applicant is a vexatious litigant and an order that the Applicant shall not bring any further proceedings against the Respondent. [3] In the Final Order, the trial judge dismissed the application in its entirety and, pursuant to CJA s. 140(1), ordered that Ms. Hart “shall not commence any further proceeding against [Mr. Fullarton] in any court except with leave of a judge of the Ontario Superior Court of Justice.” [Emphasis added.] [4] In response to subsequent motions by Ms. Hart to re-open the trial, the trial judge released an endorsement dated December 16, 2020 in which she wrote: The Applicant has been advised by the Family Trial Office that if she wishes to appeal the Judgment, the proper procedure is to file an appeal with the appropriate court. Despite receiving this information, the Applicant continues to file motions for leave with the Ontario Superior Court of Justice. Paragraph 83 (2) of the Reasons for Judgment states that the Applicant shall not commence a further “proceeding” against the Respondent without leave of a judge of the Ontario Superior Court of Justice. Rule 1.03 of the Rules of Civil Procedure defines a proceeding as an action or an application, not an appeal. This Endorsement is to clarify that, in accordance with the Judgment, the Applicant does not require leave from a judge of the Ontario Superior Court of Justice to commence an appeal of the trial decision. [5] While it is true that r. 1.03 does not include an appeal within its definition of “proceeding”, this court has held that the language “proceeding … in any court” in s. 140(1)(c) of the CJA includes a proceeding in the Court of Appeal and “proceeding” includes an appeal: Varma v. Rozenberg , [1998] O.J. No. 4183 (C.A.), at para. 5. [6] Ms. Hart did not receive the December 16 endorsement until March 11, 2021. The record is not clear on why she did not. [7] In any event, Ms. Hart next filed a notice of appeal from the Final Order in the Divisional Court. That resulted in a January 12, 2021 endorsement by Corbett J., sitting as a single judge of the Divisional Court, informing the applicant that: (i) any appeal from the order declaring her to be a vexatious litigant lies to the Court of Appeal; and (ii) an appeal of any other part of the Judgment first required leave under CJA s. 140(3) from a Superior Court judge. [8] As disclosed by the reasons of O’Brien J. dated April 6, 2021, Ms. Hart moved for “leave under s. 140(3) of the CJA to appeal the judgment of the trial judge dismissing her claim for spousal support”: at para. 1. O’Brien J. dismissed the motion. While she did not find the proposed appeal to be an abuse of process, O’Brien J. concluded that Ms. Hart had not shown reasonable grounds for bringing the appeal. [9] In the course of her reasons, O’Brien J. considered the effect of the trial judge’s December 16, 2020 endorsement, reproduced in para. 4 above. She held, at para. 23: Finally, I have considered whether the Applicant should be permitted to proceed with the appeal on the basis of the December 16, 2020 endorsement of Nakonechny J. indicating that she was entitled to do so in spite of the s. 140(1) order. The subsequent endorsement of Corbett J. clarified that the Applicant could not appeal as of right and was required to first seek leave from a judge of this court. There is a long line of authority providing that, as stated by Corbett J., s. 140 of the CJA prevents appeals without leave: see, for example, Kalaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.), at para. 26; Varma v. Rozenberg , 1998 CanLII 4334 (Ont. C.A.), at para. 5; and Vermette v. Nassr , 2016 ONCA 658, at para. 5. It appears these authorities were not before Nakonechny J. when she issued her endorsement. I read Nakonechny J.’s endorsement as setting out her understanding of the meaning of “proceeding” under the Rules of Civil Procedure . I do not read it as intending to provide the Applicant with a right of appeal that she did not otherwise have . [10] On April 26, 2021 Ms. Hart attempted to file with this court a notice of appeal from the Final Order. The Registrar refused to accept the notice as it was beyond the 30-day appeal period for the Final Order. Consequently, Ms. Hart now moves for an order extending the time to file her notice of appeal. Analysis [11] Sections 140(1) and (3) of the CJA state: 140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds, (a) instituted vexatious proceedings in any court; or (b) conducted a proceeding in any court in a vexatious manner, the judge may order that, (c) no further proceeding be instituted by the person in any court ; or (d) a proceeding previously instituted by the person in any court not be continued, except by leave of a judge of the Superior Court of Justice. (3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice. [Emphasis added.] [12] The jurisprudence of this court regarding CJA s. 140 has established the following principles regarding the section’s applicability to appeals to this court: (i) The language “proceeding … in any court” in s. 140(1)(c) includes a proceeding in the Court of Appeal and “proceeding” includes an appeal: Varma v. Rozenberg , at para. 5; (ii) This court generally will require leave to appeal where a litigant seeks to initiate or continue litigation after a vexatious litigant order has been made against the litigant: Kallaba v. Bylykbashi (2006), 207 O.A.C. 60, (C.A.), at para. 33, leave to appeal refused, [2006] S.C.C.A. No. 144; (iii) However, leave to appeal a vexatious litigant order itself is not required. Such an order is final in nature and appealable as of right to the Court of Appeal pursuant to s. 6(1)(b) of the CJA . The effect of a s. 140(1) order does not extend so far as to require leave to appeal from the very order that declares a person to be a vexatious litigant and restricts her right to access the courts: Kallaba, at paras. 23 and 29. [13] During the hearing of this motion, in response to my inquiries, Ms. Hart confirmed that she is not seeking to appeal the vexatious litigant portion of the Final Order but the portion that dismissed her claim for spousal support. Consequently, CJA s. 140(3), as interpreted by the decisions of this court, requires Ms. Hart to obtain leave from a Superior Court judge to do so. [14] I agree with O’Brien J.’s reading of the December 16, 2020 endorsement that the trial judge did not intend to provide Ms. Hart with a right of appeal that she did not otherwise have. [15] Ms. Hart sought leave to proceed with an appeal of the spousal support aspect of the Final Order from O’Brien J. [1] Her request for leave was denied. CJA s. 140(4)(e) clearly states that no appeal lies from a refusal to grant leave to proceed: Chavali v. The Law Society of Upper Canada , 2007 ONCA 482, at paras. 4-5. Consequently, there is no merit to the appeal that Ms. Hart now seeks to bring before this court in respect of the dismissal of her application for spousal support and the justice of the case requires dismissing her motion for an extension of time. [16] For these reasons, I dismiss Ms. Hart’s motion. [17] Mr. Fullarton seeks his partial indemnity costs of this motion, including costs caused by its adjournment last week, in the amount of $2,000. I am not prepared to award costs for the adjourned motion; communication glitches between the court and Ms. Hart seem to have been the cause of the adjournment. However, Ms. Hart shall pay Mr. Fullarton his partial indemnity costs of the motion fixed in the amount of $1,500, inclusive of disbursements and applicable taxes, within 30 days of the release of these reasons. “David Brown J.A.” [1] Neither party raised the issue of whether an appeal of the dismissal of the spousal support aspect of the Final Order would lie to the Divisional Court under CJA s. 19(1)(a) or to this court under CJA s. 6(1)(b). However, Ms. Hart is self-represented. Consequently, during the hearing of the motion, at my request, respondent’s counsel provided a copy of Ms. Hart’s October 15, 2019 Form 8 Application. Her claim did not specify the amount of monetary relief that she was seeking. The absence of any quantification of the relief claimed, coupled with Ms. Hart’s filing of a notice of appeal to the Divisional Court, have satisfied me that she was proceeding on the basis that the Divisional Court was the appropriate court to proceed with an appeal of the dismissal of her spousal support claim. In any event, even if her claim had exceeded $50,000, the jurisprudence on CJA s. 140(3) would require her to move before a judge of the Superior Court for leave to proceed with an appeal to this court. She did, and O’Brien J. dismissed her request for leave to proceed with an appeal.

COURT OF APPEAL FOR ONTARIO CITATION: Kelava v. Spadacini, 2021 ONCA 428 DATE: 20210617 DOCKET: C68394 Benotto, Miller and Trotter JJ.A. BETWEEN David Kelava and The United Brotherhood of Retail, Food, Industrial and Service Trades International Union Defendants/Applicants (Appellants) and Dante Spadacini Plaintiff/Respondent (Respondent) Melvyn L. Solmon and Laney J. Paddock, for the appellants Dante Spadacini, acting in person Heard: April 21, 2021 by video conference On appeal from the judgment of the Divisional Court (Justices Lynne Leitch, Harriet E. Sachs and David L. Corbett), dated October 30, 2019, with reasons reported at 2019 ONSC 6314, affirming the order of Deputy Judge Thomas H. Clemenhagen, dated June 21, 2018. Benotto J.A .: [1] This appeal involves the jurisdiction of the Small Claims Court to appoint a representative defendant for an unincorporated association. A. FACTS [2] The respondent, Dante Spadacini, brought a wrongful termination claim in Small Claims Court against the appellants David Kelava and The United Brotherhood of Retail, Food, Industrial and Service Trades International Union (“the Union”). The monetary amount of the claim is within the jurisdiction of the Small Claims Court. [3] The Deputy Judge made an order amending the style of the action “to change the wording of the defendant’s name slightly” by adding the named defendant David Kelava as a representative of the Union. Although the Rules of the Small Claims Court , O. Reg. 258/98 do not explicitly deal with representation orders, the Deputy Judge applied r. 1.03(2) which gives the court discretion to refer to the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, if a matter is not adequately covered by the Small Claims Court Rules . The deputy judge then referred to r. 12.07 of the Rules of Civil Procedure . This rule (typically used when a union is sued) provides that one or more persons may be authorized by the court to defend an action when numerous persons have the same interest. [4] The Union applied for judicial review to the Divisional Court on the basis that the deputy judge lacked jurisdiction to make the order because there is a clear omission in the Small Claim Court Rules preventing reference to the Rules of Civil Procedure . [5] The Divisional Court upheld the deputy judge’s order, unanimously ruling that he did not err. [6] The Union now appeals to this court. [1] B. POSITIONS OF THE PARTIES (1) Appellants [7] The appellants submit that the Divisional Court erroneously expanded the jurisdiction of the Small Claims Court. They say that there is a precondition to the application of r. 1.03(2) and it was not met here. They submit that r. 1.03(2) can only be applied in order to refer to the Rules of Civil Procedure if there is a “gap” as opposed to an “omission” in the Small Claims Court Rules . [8] The appellants argue that there is an omission, not a gap, in the Small Claims Court Rules and rely on this court’s decisions in Van de Vrande v. Butkowski , 2010 ONCA 230, 99 O.R. (3d) 648, and Riddel v. Apple Canada Inc. , 2017 ONCA 590, 139 O.R. 595. They argue that a gap is something that is covered inadequately by the Rules , whereas an omission is not addressed in the Rules at all and consequently, there is no ability for the Small Claims Court to make reference to r. 1.03(2) or to the Rules of Civil Procedure . [9] The appellants further argue that the Small Claims Court does not have the jurisdiction to hear actions by or against unincorporated associations. They rely on the absence of reference to unincorporated associations in the Small Claims Court Rules. (2) Respondent [10] The respondent submits that the Small Claims Court Rules are clear and unambiguous in that the court may give directions and make orders when the rules do not cover a matter adequately. This is exactly what the deputy judge did. He identified an area where the rules did not adequately cover a matter – the ability to make representation orders – and made reference to the Rules of Civil Procedure . There are also Ontario regulations premised on unincorporated associations falling under the jurisdiction of Small Claims Court. Specifically, Ontario Regulation 332/16 Small Claims Court – Fees and Allowance includes unincorporated organizations in the definition of “claimant”. [11] The respondent points to several Small Claims Court actions commenced by and against unincorporated associations, including unions: see Ryan v. PACI Band Parents Association , [2003] O.J. No. 3732 (Sup. Ct. (Sm. Cl. Div.)) ; De Yound v. Van Bart , [2006] O.J. No. 4491 (Sup. Ct. (Sm. Cl. Div.)); Communications, Energy and Paperworks Union of Canada, Local 593 v. Matthews , [2006] O.J. No. 872 (Sup. Ct. (Sm. Cl. Div.)); Communications, Energy and Paperworks Union of Canada, Local 593 v. Dennis Garrat t (unreported); and Arnett v. Rail Canada Traffic Controllers , [1991] O.J. No. 2656 (Prov. Ct. Civ. Div. Sm. Cl. Ct.)). C. ANALYSIS [12] Is the Small Claims Court prevented from naming a representative defendant in an action against an unincorporated association? [13] I conclude that the answer is no. [14] I say this for these reasons: (i) the deputy judge had the authority under the Small Claims Court Rules to make the order without reference to the Rules of Civil Procedure ; (ii) the deputy judge did not err by referring to the Rules of Civil Procedure ; and (iii) the legislature did not deliberately omit unincorporated associations from the jurisdiction of the Small Claims Court. The authority to make the order is in the Small Claims Court Rules [15] The Small Claims Court is a branch of the Superior Court of Justice. It handles nearly half of the civil disputes in the province. The court is meant to provide an efficient, cost-effective forum for the resolution of civil disputes involving less than $35,000. It hears cases in a summary way and “may make such order as is considered just and agreeable to good conscience”: The Courts of Justice Act, R.S.O. 1990, c. C.43, s. 25. [16] In short, the court embodies the foundations of access to justice: informality, affordability, timely resolution, accessibility for self-represented people and active judicial engagement. By providing access to justice, the court has an important role in the administration of justice for the province. [17] The authority to make a representation order is found in the Small Claims Court Rules . [18] The rules are to be read in their entire context having regard to their nature, purpose, scheme, and object.  The Small Claims Court Rules , read in their entirety, emphasize facilitating access to justice. They begin with guidance as to their interpretation. Rule 1.03(1) provides: These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act. O. Reg. 258/98, r. 1.03 (1). [Emphasis added.] [19] To further provide for the achievement of their objectives, the rules give broad discretion to the court. If the rules do not directly address a matter, the court may give directions and make “any order that is just”. In order to implement the order, the practice is to be decided by analogy to the Small Claims Court Rules . Then, “if the court considers it appropriate” the court may refer to the Rules of Civil Procedure . Rule 1.03(2) provides: If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules , by reference to the Courts of Justice Act and the Act governing the action and , if the court considers it appropriate , by reference to the Rules of Civil Procedure. O. Reg. 78/06, s. 3. [Emphasis added.] [20] The Small Claims Court Rules provided the authority to make the order even without reference to the Rules of Civil Procedure. I say this for several reasons. [21] First, pursuant to a plain reading of r. 1.03(2) the court may give directions and make any order that is just. This provides the court with authority to manage its own process. [22] Second, with respect to the pleadings, it has long been the case that a liberal, non-technical approach should be taken to the pleadings in Small Claims Court ( Brighton Heating & Air Conditioning v. Savoia (2006), 79 O.R. (3d) 386 (Div. Ct.), at para. 40). The court has the power to grant necessary amendments to secure the just determination of the real matters in dispute. Rule 2 provides: 2.01 A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute. 2.02 If necessary in the interest of justice, the court may dispense with compliance with any rule at any time. [23] Third, if a matter is not adequately covered, the court is to decide the matter “by analogy” to other Small Claims Court rules – the very rules that emphasize the just, most expeditious and least expensive process. It is inconsistent with this objective to require a litigant to endure the time, expense and delay of an application to the Superior Court only to obtain a representation order when the matter is within the monetary jurisdiction of the Small Claims Court. Reference to the Rules of Civil Procedure was not an error [24] The appellants submit that the Deputy Judge had no authority to apply r. 1.03(2) in order to refer to the Rules of Civil Procedure . [25] I disagree. [26] The Deputy Judge was not required to have reference to the procedure in r. 12 of the Rules of Civil Procedure at all. Reference to the Rules of Civil Procedure is discretionary and was not necessary in this case. [27] Recall the wording of s. 1.03(2). If the matter is not adequately covered, the court may give directions and, “ if the court considers it appropriate, ” do so with reference to the Rules of Civil Procedure . [28] For these reasons, I conclude that the Small Claims Court Rules provide the authority to make the order appealed from. That said, I turn to the appellants’ submissions with respect to the court’s jurisdiction. Jurisdiction regarding unincorporated associations [29] The appellants say that nonetheless, the deputy judge could not make the order at all, because the Small Claims Court has no jurisdiction with respect to unincorporated associations. They submit that the legislative intent is evident from the fact that the rules do not refer to unincorporated associations. This prevents reference to the Rules of Civil Procedure which can only be used where there is a gap as opposed to an omission in the Small Claims Court Rules . [30] The appellants rely on this court’s decisions in Van de Vrande and Riddel which, they submit, have developed the test to apply when the Small Claims Court decides a practice following the Rules of Civil Procedure . That test is to determine whether there is a “gap” or an “omission” in the Small Claims Court Rules . If the former, the court can have reference to the Rules of Civil Procedure . If the latter, then the legislature must have intended there to be no jurisdiction. [31] The appellants misconstrue both Van de Vrande and Riddel. [32] In Van de Vrande , this court held that motions for summary judgment based on principles emanating from r. 20 of the Rules of Civil Procedure are not available under the Small Claims Court Rules , in part because the Small Claims Court Rules allow a process whereby a claim could be struck. Consequently, the omission of the summary judgment rule was an omission not a gap. Importantly, this court read the Small Claims Court Rules liberally and upheld the deputy judge’s order dismissing the claim. Van de Vrande actually confirms my view that it was not necessary to invoke the Rules of Civil Procedure at all because the court had the authority to give directions. [33] Nor does Riddell assist the appellants. [34] Riddel , at para. 7, clarifies that when there is a “marker in the Rules of a deliberate legislative decision to omit” a procedure, then the Small Claims Court Rules should not be supplemented. Riddel found no such marker when the court ordered an inspection of property. Rather the court concluded that the Small Claims Court Rules authorized the impugned order without reference to the Rules of Civil Procedure . [35] An example of a marker limiting jurisdiction is shown in Bruyea v. Canada (Veteran Affairs) , 2019 ONCA 599, 147 O.R. (3d) 84. There, the issue was whether the Small Claims Court had the authority to dismiss an action under s. 137.1 of the Courts of Justice Act . This is the so-called anti-SLAPP [2] law. It is meant to address concerns arising from the use of litigation to interfere with freedom of expression and quickly dismiss unmeritorious claims that unduly encroach on an individual’s right to freedom of expression on matters of public interest: Bruyea , at para. 11. The process permits the summary dismissal of an action. In Bruyea , this court determined that, by drafting the Act to refer exclusively to “judge”, not “deputy judge” or “court”, the legislature put down a “marker” of an intent to omit the jurisdiction from the Small Claims Court. Interestingly, the court commented on access to justice, at para. 27, by noting that: ironically, s. 137.1 is not a provision providing access. To the contrary, at least viewed from the perspective of the plaintiff, it is the very opposite. It is a provision that is intended, in proper circumstances, to prohibit access to the courts. [36] Here, there is no such marker. There is no language in a statute that marks a clear intent to exclude representative defendants from the court’s jurisdiction. On the contrary, there is extensive language regarding the ability of the court to manage its process in a cost-effective way . [37] Finally, I note the appellant appears to have conflated the right to sue with the representation order. The appellant submits that unincorporated associations do not have legal personality. This is incorrect for trade unions. A trade union is a legal entity with legal personality: see Berry v. Pulley , 2002 SCC 40, [2002] 2 S.C.R. 493, at para. 39.  However, because of the statutory requirements in the Rights of Labour Act , R.S.O. 1990, c. R.33, the only way to sue a union in Ontario is to obtain a representation order: Lawrence v. IBEW, Local 773 , 2017 ONCA 321, 138 O.R. (3d) 129, at para. 16. D. CONCLUSION [38] I would dismiss the appeal with costs payable to the respondent fixed in the amount of $5,000 for the appeal, plus $2,000 for the motion for leave to appeal for a total of $7,000 inclusive of tax and disbursements. Released: June 17, 2021 “M.L.B.” “M.L. Benotto J.A.” “I agree B.W. Miller J.A.” “I agree Gary Trotter J.A.” [1] No submissions were made as to the standard of review. In any event, as I explain, the decision under review is correct. [2] Strategic Lawsuits Against Public Participation

COURT OF APPEAL FOR ONTARIO CITATION: Parliament v. Conley, 2021 ONCA 437 DATE: 20210616 DOCKET: C67348 Huscroft, Nordheimer and Harvison Young JJ.A. BETWEEN Cole Parliament, an incapable by his Litigation Guardian, Kimberley York, John Parliament, and the said Kimberley York personally Plaintiffs (Appellants) and D.W. Conley and V. Park Defendants (Respondents) Gavin MacKenzie, Brooke MacKenzie, Hilik Y. Elmaleh and Michael A. Hershkop, for the appellants Darryl Cruz, Dorothy Charach and Joseph Ur, for the respondents Heard: October 20, 2020 by video conference On appeal from the order of Justice Susan Woodley of the Superior Court of Justice, dated August 30, 2019. ADDENDUM [1] Given the lack of agreement between the parties on the subject of the costs below, the issue is reserved to the trial judge hearing the second trial. “ Grant Huscroft J.A.” “I.V.B. Nordheimer 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. 6. (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 7. (a) as soon as feasible, inform the victim of their right to make an application for the order; and 8. (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. Anderson, 2021 ONCA 435 DATE: 20210617 DOCKET: C68257 Feldman, Miller and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Robert Gary Anderson Appellant Joshua Clarke, for the appellant Andrew Cappell, for the respondent Heard and released orally: June 15, 2021 by videoconference On appeal from the conviction entered on October 1, 2019 by Justice Kenneth E. Pedlar of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] Robert Gary Anderson appeals his conviction after a trial by judge and jury of criminal harassment, and he seeks leave to appeal his sentence. We are not persuaded that the trial judge erred, either in convicting or sentencing Mr. Anderson. [2] Mr. Anderson contends that it was unfair for the trial judge to describe an “inconsistency” in the complainant’s evidence only when summarizing the defence position and not in his final summary of the evidence. Specifically, at one point, when asked if she was afraid of the appellant the complainant replied, “Yeah, I am, but I’m not because it was Gary”. Mr. Anderson points out that, in contrast, when summarizing the evidence, the trial judge offered an innocent explanation for an apparent conflict in the Crown’s testimony relating to the size of a dog. We see no unfairness or imbalance in the charge. The trial judge alerted the jury to the complainant’s testimony that she was scared but she was not because it was Gary and reminded the jury of defence counsel’s submission that this comment was an inconsistency in her evidence. The trial judge was entitled to comment on the apparent inconsistency about the size of the dog. We are not satisfied that the charge was unbalanced. [3] In his charge, the trial judge did misstate the date the complainant blocked the appellant’s number but this error was not prejudicial, given that the trial judge twice alerted the jury to the correct date and reminded the jury to rely on their own recollection of the evidence. Moreover, we are not persuaded that the pinpoint date for blocking the number has the importance that defence counsel suggests. [4] With respect to the juror that Mr. Anderson and the trial judge believed fell asleep during the trial, we are not persuaded that there was a real danger of prejudice. Mr. Anderson’s counsel raised no objection while this was allegedly occurring, giving it only passing reference after it happened. The failure of Mr. Anderson’s counsel to object suggests that the incident was not a significant one. Nor do the trial judge’s comments suggest that this incident was a matter of concern. Moreover, since Mr. Anderson’s counsel did not raise this promptly, or request an inquiry, Mr Anderson is not now in a position to demonstrate that the juror in fact fell asleep, for how long, or that this compromised the ability of the juror to adjudicate fairly. We can find no miscarriage of justice. [5] With respect to Mr. Anderson’s sentence appeal, the two-year suspended sentence the trial judge imposed was entirely fit. The contact was unrelenting, even after many demands that it must cease. Even though the trial judge expressed the view that this case could have been dealt with by a peace bond in provincial court, in imposing the suspended sentence the trial judge took all of the circumstances into account and decided, as he was entitled to, that a fit sentence required Mr. Anderson to be convicted and not discharged. [6] The conviction appeal is dismissed. We grant Mr. Anderson leave to appeal his sentence but the sentence appeal is also dismissed. “K. Feldman J.A.” “B.W. Miller J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Wightman (Re), 2021 ONCA 429 DATE: 20210617 DOCKET: C68894 Rouleau, Hoy and van Rensburg JJ.A. IN THE MATTER OF: Alexander Wightman AN APPEAL UNDER PART XX.1 OF THE CODE Erin Dann, for the appellant Natalya Odorico, for the respondent, Attorney General of Ontario Julie A. Zamprogna Ballès, for the respondent, Person in Charge of Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London Heard: June 3, 2021 by video conference On appeal from the disposition of the Ontario Review Board, dated November 10, 2020, with reasons dated December 3, 2020. van Rensburg J.A.: A. Overview [1] The appellant appeals the most recent disposition of the Ontario Review Board (the “Board”) dated November 10, 2020, continuing his conditional discharge. He contends that the Board’s conclusion that he continued to represent a significant threat to the safety of the public, was unreasonable. The appellant also relies on fresh evidence – a letter providing certain information about his current status, and confirming that an early hearing has been scheduled at the request of St. Joseph’s Health Care, London (the “Hospital”), at which the Hospital intends to recommend an absolute discharge. The appellant asks this court to order an absolute discharge. [2] For the reasons that follow I would dismiss the appeal. [3] First, I am not persuaded that the November 2020 Board disposition was unreasonable at the time it was made. The conclusion that the appellant continued to pose a significant threat is well-supported by the evidence before the Board, and the Board applied the correct test. [4] Second, although this court can grant an absolute discharge based on fresh evidence, I would decline to do so in this case. An early review of the November 2020 disposition is scheduled for July 12, 2021. It is preferable that the Board make the determination of whether, in light of this evidence and the record before it, the appellant no longer poses a significant threat such that an absolute discharge is warranted. B. BACKGROUND Facts [5] The appellant was found not criminally responsible on account of mental disorder (“NCRMD”) on a charge of attempted murder in November 2009. The index offence occurred in April 2009, when the appellant, without warning, repeatedly stabbed a neighbour with a six-inch knife. At the time of the offence, he was experiencing paranoid persecutory delusions, he was non‑compliant with prescribed antipsychotic medication and he was not under psychiatric care. [6] The appellant’s diagnoses then, and now, are schizophrenia, substance use disorder and antisocial personality disorder traits. For his first five years under the Board’s jurisdiction the appellant was detained in the maximum secure facility at Oak Ridge (now Waypoint). After showing “slight progress”, at his 2014 annual hearing the Board ordered the appellant’s transfer to St. Joseph’s Health Care, Hamilton, where he began to make real progress. Following an early review in November 2015 the appellant was moved to a general forensic unit and, following his 2016 annual review, he was transferred to the rehab-readiness unit at the Southwest Centre of the Hospital. The appellant remained under a detention order, but began his transition to community living in November 2017. [7] In February 2019 the appellant was referred to the Chatham-Kent Health Alliance for a community psychiatrist, and to the local Canadian Mental Health Association (CMHA) Long-Acting Injection clinic for bi-weekly injections, a service that commenced in April 2019. Since April 2019 the appellant has been living in his own one-bedroom apartment in Chatham. [8] On November 25, 2019, the appellant was ordered conditionally discharged. The disposition required the appellant to reside at his current address, to take psychiatric treatment (on his consent), and to report to the Hospital four times per month. [9] At the 2020 review hearing in November 2020 the appellant sought an absolute discharge, which was opposed by the Hospital and the Crown. C. The Board’s Reasons [10] A majority of the Board concluded that the threshold test for significant threat continued to be met. The risk flowed mainly from the appellant’s major mental illness (schizophrenia), as well as his diagnosis of antisocial personality traits, and his low threshold for stress, as well as his historical use of alcohol and illicit drugs. The Board noted that the index offence, which was extremely serious, and could have been lethal, occurred when the appellant was experiencing symptoms of his major mental illness, likely exacerbated by the use of alcohol. The Board accepted that the appellant had made good progress over the past number of years: he had willingly engaged with forensic staff, complied with medication, and had shown increased insight into his mental illness and receptiveness to suggestions on coping and alleviating stress. The Board concluded: However, given Mr. Wightman’s history of significant violence when he is less well, the challenge is to ensure that Mr. Wightman remains engaged with professional supports and treatment compliant when he is no longer subject to a Review Board disposition. Put simply, despite the progress that he has made, ongoing therapeutic oversight and support of Mr. Wightman is necessary to minimize his risk going forward. [11] The Board noted that the appellant’s relationship with Dr. Rafiq, the community psychiatrist who had been overseeing his care for the past seven months, had just begun to develop and that the ability to establish a strong therapeutic alliance had been impacted by restrictions imposed due to the pandemic, including the lack of in-person meetings. The Board agreed with the appellant’s forensic psychiatrist, Dr. Ugwunze (who testified at the hearing) and Dr. Rafiq (whose views were communicated by Dr. Ugwunze), that a longer period of transition of care was required. The Board concluded that a period of overlapping care was necessary to ensure a successful transition and no increase in the risk to public safety, and that until the successful transition was achieved, the test for significant threat continued to be met. [12] One Board member would have granted the appellant an absolute discharge. She noted that there had been several meetings between the appellant and Dr. Rafiq. Given the appellant’s excellent progress, his current stability and connection to at least some CMHA services, she could not say that the appellant posed a significant risk to the safety of the public. [13] The Board continued the conditional discharge disposition. It reduced the appellant’s reporting frequency from four to two times per month, and, in order to test the appellant’s commitment to long-term compliance with medication, the Board removed the consent to treatment conditions from the disposition. Issue One: Was the Disposition Reasonable at the Time It Was Made? [14] A Board’s determination on significant risk will only be disturbed on appeal if the decision is unreasonable or cannot be supported by the evidence, the decision is based on a wrong decision on a question of law, or there has been a miscarriage of justice: Criminal Code , s. 672.78. The Board is provided with expert membership and broad inquisitorial powers. The assessment of whether an accused’s mental condition renders him a significant threat calls for significant expertise: R. v. Owen , 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30. The reasonableness of a Board disposition is assessed by reference to the Board’s “reasoning process and the outcome” and whether the decision properly reflects “an internally coherent and rational chain of analysis” that is “justified in relation to the facts and law”: Re Fotiou , 2020 ONCA 153, at para. 7, citing Canada (Ministry of Citizenship and Immigration) v. Vavilov , 2019 SCC 15, 441 D.L.R. (4th) 1, at paras. 83, 85. [15] The appellant asserts that the Board’s conclusion that he continued to pose a significant threat to the safety of the public was unreasonable. [1] [16] He submits that the Board concluded there was a significant threat after applying an incorrect test. A significant threat requires “a risk of serious physical or psychological harm to members of the public…resulting from conduct that is criminal in nature but not necessarily violent”: Criminal Code , s. 672.5401. Instead, the Board considered whether an ideal non-forensic clinical care scenario had been achieved. [17] The appellant argues that there was an absence of “positive evidence of a substantial risk”; rather the evidence showed that there was a low risk of reoffence if the appellant remained treatment compliant. The necessary threshold was not met because the Board did not conclude that there was a high risk that he would become non-compliant with his medication. In oral submissions, the appellant, relying on Re Negash , 2021 ONCA 280, says that as in that case, the conclusion that there was a significant risk to public safety because of the possibility rather than the probability of harm, descended into the realm of speculation. [18] I would not give effect to this argument. In Negash this court observed that a “significant risk of harm to public safety” requires “ a real, foreseeable risk that is more than speculative and that the consequent physical or psychological harm must be serious and criminal in nature”: at para. 10 (relying on R. v. Ferguson , 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8). In that case, the Board proceeded on the basis that the possibility of a change in the accused’s medications could cause instability, and there was an elevated risk associated with the accused’s transition to a non-forensic team. Moreover, the Board did not weigh the seriousness of the potential harm against the likelihood that it would materialize. [19] In the present case, by contrast, the evidence demonstrated that the risk that the appellant would stop taking his medication if the necessary psychiatric supports were not provided was more than speculative, and that serious harm would likely result. Dr. Ugwunze testified that if the appellant were absolutely discharged without psychiatric support there was a “real risk” he would stop taking his medication, which “would most likely lead to decompensation of his mental state” including “florid psychotic symptoms, notably delusional beliefs of a paranoid persecutive nature, as well as auditory hallucinations”. The doctor expressed the opinion that, it was likely that, in this decompensated mental state, the appellant would act on his delusional beliefs, leading to behaviour similar to what occurred in the index offence. Dr. Ugwunze said this scenario was “very likely” if the appellant did not take his medication. The appellant’s compliance with medication was fairly recent (since 2017), and he had a long history of refusing or stopping medication both before and after Board supervision. [20] While the appellant is correct that there was general agreement that he is at low risk to reoffend if he remains treatment compliant, as the Board noted, “the challenge is to ensure that [he] remains engaged with professional supports and treatment compliant when he is no longer subject to a Review Board disposition”. The appellant’s relationship with his community psychiatrist, Dr. Rafiq, which was “in its infancy” at the time of the November 2020 Board hearing, was described by Dr. Ugwunze as the “bedrock” for managing the appellant’s risk. Both the need for a strong therapeutic relationship with Dr. Rafiq and the fact that the relationship had not yet developed, in part because of the lack of opportunity to conduct in‑person assessments, were amply supported by the evidence. [21] In my view, the Board’s disposition was reasonable, based on the evidence at the hearing. The Board’s conclusion that the appellant met the significant threat test is fully supported by the record. The threat was “more than speculative in nature”. It was “sig nificant”, both in the sense that there was “a real risk of physical or psychological harm occurring to individuals in the community and in the sense that [the] potential harm [was] serious”. And the risk was the commission of a serious criminal offence: Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 2 S.C.R. 625, at para. 57. Issue Two: Does the Fresh Evidence Warrant an Order for Absolute Discharge from This Court? [22] Section 672.73 of the Criminal Code provides that an appeal against a disposition order shall be “based on a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice”. Fresh evidence concerning events that postdate the disposition order may be admitted where the evidence “is trustworthy and touches on the issue of risk to public safety”: Owen , at paras. 48-61, 71. [23] All parties agree that this court should consider as fresh evidence, a letter dated May 14, 2021 from counsel for the Hospital. They agree that the information contained in the letter is trustworthy and relevant to the issue of risk to public safety. They disagree, however, about the effect the fresh evidence should have on the disposition of the appeal. [24] The May 14, 2021 letter confirms that, since the November 2020 disposition, the appellant has continued to live independently in the community and has demonstrated ongoing stability, and that the relationship between the appellant and Dr. Rafiq has progressed. Although the appellant has declined to consent to a community treatment order, he has been compliant with his treatment, that is now prescribed and overseen by Dr. Rafiq. He is supported by the CMHA for intra‑muscular medication and follow-up. He was declined for formal case‑management services by the CMHA because of the existing support provided by Dr. Rafiq and the CMHA injection team. Although the letter does not indicate whether in-person meetings have taken place, the treatment team at the Hospital considers that a strong therapeutic relationship has developed between the appellant and Dr. Rafiq, and that the appellant is adequately supported in the community. No concerns have been conveyed to the Hospital by Dr. Rafiq concerning the appellant’s engagement or mental wellness. [25] The letter advises that an early Board hearing was requested by the Hospital and has been scheduled for July 12, 2021, and that the Hospital confirms that it intends to recommend an absolute discharge for the appellant at that hearing. [26] The appellant asks that this court grant an absolute discharge based on the fresh evidence. First, he contends that the fresh evidence bolsters his argument that the disposition of the Board in November 2020 was unreasonable. The information contained in the letter shows that the situation has progressed and undermines the Board’s determination that the appellant – as of November 2020 – presented a significant threat. I disagree. Nothing in the fresh evidence, which speaks to what has occurred since the November 2020 disposition, detracts from the conclusion that the disposition was reasonable and fully supported by the record at the time it was made. [27] The appellant asserts, in the alternative, that, based on the fresh evidence, he no longer continues to present a significant threat. The only concern of the Board in November 2020 – that there had been an insufficient therapeutic relationship between the appellant and Dr. Rafiq – has been resolved. The appellant asserts that, as in R. v. Stanley , 2010 ONCA 324, 100 O.R. (3d) 81, the only reasonable outcome of this appeal, once the fresh evidence is considered, is an absolute discharge. The Hospital supports the request. [28] The Crown submits that the determination of the effect of the fresh evidence on the November 2020 disposition is best left to the Board. This court does not have the “full evidentiary picture” and it is appropriate for a hearing pursuant to the procedure prescribed by s. 672.5 of the Criminal Code to take place, including the right of the victim to have notice of the hearing and to attend. [29] I agree with the Crown’s position. While I accept that this court has the ability in an appropriate case, to allow an appeal and to grant an absolute discharge based on fresh evidence respecting the appellant’s progress since the date of the disposition under appeal, there are reasons why the approach in Stanley should not be followed in this case. [30] In Stanley , the appellant’s treating physician had testified before the Board that, if a CTO were available, it would be difficult to maintain that the appellant continued to pose a significant risk. The fresh evidence was an affidavit from the same physician confirming his opinion that a CTO was appropriate and had been issued, and that he was satisfied that the appellant would adhere to the terms of the CTO. No early hearing had been requested. [31] In this case, by contrast, the fresh evidence consists of a letter, not an affidavit or report, and without the opinion of the appellant’s forensic or community psychiatrist addressing the central question of significant threat. Moreover, the Hospital initiated the early review process with the Board, and the hearing will occur in short course. [32] Although the circumstances are not identical, I would follow the approach of the majority of this court in Re Krivicic , 2017 ONCA 379. In that case, the fresh evidence consisted of the report of the appellant’s treating psychiatrist that expressed the opinion that he did not meet the significant threat threshold and was entitled to an absolute discharge. The evidence called into question the Board’s determination of significant threat, which was based on the record from an earlier hearing, and did not include an updated psychiatric opinion. This court concluded that the fresh evidence rendered the Board’s determination of significant threat at first instance unreasonable, and allowed the appeal. Although the appellant and the Hospital invited this court to substitute an absolute discharge based on the fresh evidence, the matter was remitted to the Board for a fresh determination in light of that evidence and any other evidence it considered relevant: at paras. 18-19. The court recognized that it was the responsibility of the Board, as an expert body, to evaluate the medical evidence and that it “must be permitted to do its job”: at para. 15. [33] The appellate court’s vigilance in protecting the liberty of an NCRMD accused “must be tempered with recognition of the inherent difficulty of the subject matter and the expertise of the medical reviewers”: Owen , at para. 40. In the circumstances of this case, it is appropriate for the Board, following its proper procedures, to consider all of the evidence placed before it, including the fresh evidence, to determine whether the appellant no longer meets the threshold of “significant threat”, and whether he is entitled to an absolute discharge. [34] For these reasons I would dismiss the appeal. “K. van Rensburg J.A.” “I agree. Paul Rouleau J.A.” Hoy J.A. (dissenting): [35] Like my colleague, I would admit the fresh evidence. The fresh evidence meets the test in R. v. Palmer , [1980] 1 S.C.R. 759. [36] In my view, having admitted the fresh evidence, the correct approach is to consider the reasonableness of the Board’s decision in light of the fresh evidence, as the court did in Re Krivicic , 2017 ONCA 379. And as the court did in Krivicic , I conclude that the Board’s disposition is unreasonable in light of the fresh evidence. Accordingly, I would allow the appeal. [37] Moreover, I would not remit the matter to the Board for a fresh determination. [38] In Krivicic , having concluded that the Board’s decision was unreasonable in light of the fresh evidence, a majority of the court nonetheless concluded that it should return the matter to the Board. (Feldman J.A. would have ordered an absolute discharge.) However, the circumstances in Krivicic were different from this case. In Krivicic , Huscroft J.A., for the majority, wrote that the opinion of the new psychiatrist that the appellant did not meet the significant threat threshold was “clearly at odds” with the psychiatric evidence that the Board had relied on in its disposition: at para. 15. He concluded that it was not for the court “to reconcile the competing psychiatric evidence in this case”: at para. 18. [39] In this case, the court is not faced with competing psychiatric evidence from different psychiatrists. The Board’s disposition was a close call. Its disposition rested on the concern of the appellant’s treatment team that the appellant had not yet developed a strong therapeutic relationship with his community psychiatrist, Dr. Rafiq. The fresh evidence is that the same treatment team is now satisfied that a strong therapeutic relationship has developed between the appellant and Dr. Rafiq and that at the early hearing before the Board requested by the Hospital, the Hospital intends to recommend an absolute discharge. The Hospital urges the court to grant an absolute discharge. There is no competing psychiatric evidence in this case. All parties agree that the fresh evidence is trustworthy; in these circumstances, the fact that the fresh evidence is in the form of a letter, and not an affidavit or a formal report or opinion, is not a reason to deny the appellant an absolute discharge. [40] Like the court in R. v. Stanley , 2010 ONCA 324, 100 O.R. (3d) 81, I conclude that the only reasonable outcome in light of the fresh evidence is to grant the appellant an absolute discharge. The fact that, in this case, the Hospital requested an early hearing with a view to securing the absolute discharge of the appellant is not a reason to distinguish this case from Stanley . If anything, it adds weight to the fresh evidence. [41] I am mindful that the early hearing requested by the Hospital is only a month away. However, the delay affects the appellant’s liberty interest. [42] I would admit the fresh evidence, allow the appeal, and pursuant to s. 672.78(3) of the Criminal Code , grant the appellant an absolute discharge. Released: June 17, 2021 “P.R.” “Alexandra Hoy J.A.” [1] In her factum the appellant’s counsel also submitted that the Board failed to consider whether a community treatment order (“CTO”), combined with CMHA case management, would provide a suitable civil alternative to continued Board oversight. This argument was not pursued in the oral hearing. The fresh evidence indicates that the appellant has declined to consent to a CTO.

COURT OF APPEAL FOR ONTARIO CITATION: Gorman v. Sadja, 2021 ONCA 430 DATE: 20210616 DOCKET: C68808 Fairburn A.C.J.O., Harvison Young and Jamal JJ.A. BETWEEN Debbie Gorman Applicant (Respondent) and David Sadja Respondent (Appellant) Geoff R. Hall and Brittany Cerqua, for the appellant Dani Frodis and Kori Levitt, for the respondent Heard and released orally: June 7, 2021 by video conference On appeal from the order of Justice Mario D. Faieta of the Superior Court of Justice, dated January 29, 2020. REASONS FOR DECISION [1] The appellant argues that the trial judge erred in failing to incorporate a rectification analysis in his reasons. This was exacerbated by his error in finding that the appellant did not misunderstand the content of the marriage contract. [2] We disagree. First, the appellant agrees that if the trial judge’s finding that the appellant failed to meet his onus of showing that he had misunderstood the contract is upheld, the appeal must fail. He argues however that the trial judge erred by finding that there was “ no evidence” of a prior oral contract that was contrary to clause 3.3(c) that was ultimately included in the contract. The appellant further argues that this amounted to an error in principle. We do not accept this submission. Read in context, the trial judge was clearly alive to all the evidence and was stating that he did not accept the appellant’s evidence on the issue. This finding was open to him on all the evidence before him. In light of this, no remedy in rectification could be available. [3] The appeal is therefore dismissed on an agreed amount of $25,000 plus HST. “Fairburn A.C.J.O.” “A. Harvison Young J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Harvey Kalles Realty Inc. v. BSAR (Eglinton) LP, 2021 ONCA 426 DATE: 20210616 DOCKET: C67776 Rouleau, Hoy and van Rensburg JJ.A. BETWEEN Harvey Kalles Realty Inc. Plaintiff (Respondent) and BSAR (Eglinton) LP Defendant (Appellant) James M. Wortzman and Spencer Malthouse, for the appellant Ian Cantor, for the respondent Heard: June 2, 2021 by video conference On appeal from the judgment of Justice Mary Anne Sanderson of the Superior Court of Justice, dated November 8, 2019, with reasons reported at 2019 ONSC 4434. REASONS FOR DECISION [1] The appellant appeals from the trial judge’s decision awarding the respondent real estate brokerage the sum of $245,878.96 together with interest and costs pursuant to its claim as assignee of the commission payable under an October 7, 2012 Commission Agreement. The appellant submits that no commission is owing because one of the two conditions set out in the Commission Agreement was not met. [2] The parties generally agree on the two conditions contained in the Commission Agreement. The first condition required that an offer to lease be  entered into between the appellant and a “Tenant”, defined as  “Loblaw Companies Limited or any associated, affiliated, related company or individual, nominees or any principals, partnerships, joint ventures, corporations, affiliates or associates for whom it is a nominee or to whom it is directly or indirectly related” within 24 months of the Commission Agreement. The second condition required that the “Tenant” subsequently enter into a final form of lease with all conditions of the offer met or waived. [3] The appellant concedes, as it did at trial, that the first condition was met when the appellant and Loblaw Properties Limited signed a formal offer to lease on July 10, 2013. However, the appellant argues that the trial judge erred in finding that the second condition was met. According to the appellant, the second condition in the Commission Agreement required that t he appellant sign a lease with Loblaws Companies Limited or a company that was associated, affiliated or related to it as of the date of the Commission Agreement. The eventual tenant, Shoppers Drug Mart, only became a Loblaws entity after the offer to lease was signed. [4] In the appellant’s submission, the trial judge made a series of palpable and overriding errors in reaching her decision. In addition, the appellant maintains that the trial judge also erred in law in at least two respects. First, she erred in failing to find that the offer to lease had been automatically terminated. Second, she erred in law when she found that Shoppers met the definition of “Tenant” in the offer to lease and in the Commission Agreement. [5] There is no dispute as to the relevant principles. As explained in Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633 , the primary goal of contractual interpretation is to give effect to the objective intention of the parties at the time of contract formation. Courts must determine the intent of the parties and the scope of their understanding by reading the contract “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.” The meaning of words is determined by contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement: Sattva , at paras. 47-48. [6] It is also well settled that courts should avoid commercially absurd interpretations of contracts. Commercial reasonableness must be interpreted from the perspective of both contracting parties: Resolute FP Canada Inc. v. Ontario (Attorney General) , 2019 SCC 60, at para. 148. [7] We see no error in the trial judge’s findings or conclusions. This was a straightforward case involving the interpretation of two agreements. The trial judge did not, as the appellant suggests, confuse the objective intent of the parties to the Commission Agreement with the objective intent of the parties to the offer to lease. In her reasons setting out how she made her findings and reached her decision, the trial judge carefully and correctly applied the approach for interpreting commercial contracts set out in the leading case of Sattva . She considered the genesis and factual matrix of the Commission Agreement and determined that it was clearly the objective intention of the parties that the leasing commission would be paid if the appellant concluded a lease for the commercial component of the subject property with any Loblaws entity. [8] The trial judge rejected the appellant’s submission that a provision of the Commission Agreement limited its application to leases signed with Loblaws entities in existence at the time the Commission Agreement was signed. In our view she did not err in so concluding. We disagree with the appellant’s submission that, because the definition of “Tenant” in the Commission Agreement includes  an entity to whom Loblaws “is” directly or indirectly related, the Commission Agreement contemplated only entities in existence at the time it was signed and that the trial judge’s conclusion to the contrary constitutes palpable and overriding error or a failure to give effect to the words of the agreement. The trial judge’s findings constitute, in our view, a commercially reasonable interpretation of that provision in the context of the entire agreement and the factual matrix and should be accorded due deference in this court. The appellant has not demonstrated any palpable or overriding errors in any of the trial judge’s findings. [9] We also reject the submission that the trial judge erred in law in reaching her conclusion that the offer to lease had not been terminated and that Shoppers met the definition of “Tenant” in the relevant agreements. These conclusions flowed from the trial judge’s considered interpretation of the terms of the agreements and her findings of fact. [10] The appellant submits that the trial judge failed to adequately deal with the submission that the offer to lease terminated automatically because certain conditions in the offer to lease were neither satisfied nor waived by Loblaws. That submission, however, was not the focus of the appellant’s argument at trial and the trial judge cannot be faulted for her failure to deal extensively with it in her reasons. The trial judge explained that the parties conducted themselves on the basis that the offer to lease had not been terminated and that a final form of lease would be signed. It was only in the alternative that she turned to the issue of whether the automatic termination provision may have been triggered. The trial judge explained that, had it been necessary, she would have found that by continuing to negotiate with the respondent, Loblaws, by its conduct, waived the need for compliance with these conditions. Significantly, at trial, the appellant produced no documents and led no evidence setting out, in any substantive way, the timing, terms and conditions under which the transaction continued after the point at which the appellant argues the offer to lease automatically terminated. There would therefore have been no reasonable basis for the trial judge to have found that, notwithstanding the lengthy passage of time, the numerous steps taken in furtherance of the transaction and the appellant's own firm assertions otherwise, the offer to lease had been automatically terminated. [11] The trial judge’s finding that, in effect, the lease was simply a “finalization” or “fulfillment” of a single lease transaction contemplated in the offer to lease was fully supported by the evidence and her interpretation of the agreements. The findings of the trial judge in support of this conclusion include: a. throughout the period from the offer to lease to the signing of the lease both Loblaws and the appellant dealt with each other as if they were continuing an existing transaction; b. Loblaws reassured the appellant that it intended to keep the appellant whole under their initial agreement; c. Loblaws brought Shoppers into the transaction with instructions that the lease with Shoppers must be on identical financial terms as the offer to lease; d. the lease did in fact have substantive and financial terms identical to the offer to lease; e. the appellant never re-listed the property for lease; f. there was no offer to lease with Shoppers and the parties proceeded with the Loblaws standard lease form; g. Shoppers regarded the lease as a continuation of the Loblaws deal; and h. while the lease changed the primary use of the space from grocery to pharmacy, it expressly permitted the space to be used as a grocery, provided it first opened for a single day as a pharmacy. [12] We see no basis to interfere with the trial judge’s finding that the offer to lease had not been terminated and that Shoppers met the definition of “Tenant” in the Commission Agreement. [13] Finally, in its factum, the appellant submits that the trial judge approached this case by first deciding what she considered to be the equitable result and then proceeding to find the facts that justified this conclusion. We reject this submission. The trial judge heard the evidence and made the factual findings that naturally flowed from the record before her. Nothing suggests that she somehow sought to tailor those findings to achieve a predetermined result. [14] The appellant has not identified any error of law or error of fact, let alone a palpable and overriding error. [15] The appeal is dismissed. Costs to the respondent fixed in the amount of $40,000 inclusive of disbursements and applicable taxes. “Paul Rouleau J.A.” “Alexandra Hoy J.A.” “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Murray v. Pier 21 Asset Management Inc., 2021 ONCA 424 DATE: 20210616 DOCKET: C66936 & C67356 Pepall, Roberts and Thorburn JJ.A. BETWEEN Emily Murray and 2327342 Ontario Inc. Plaintiffs (Respondents/Appellants) and Pier 21 Asset Management Inc., David Star and 8165246 Canada Inc. Defendants (Appellants/Respondents) Igor Ellyn and Kathryn J. Manning, for the appellants (C66936)/respondents (C67356) Edward J. Babin, Cynthia L. Spry and Michael Bookman, for the respondents (C66936)/appellants (C67356) Heard: May 26, 2021 by video conference On appeal from the judgment of Justice Michael A. Penny of the Superior Court of Justice, dated April 12, 2019 and September 25, 2020, with reasons reported at 2019 ONSC 316, 2019 ONSC 4501, 2019 ONSC 7230, 2020 ONSC 2153, 150 O.R. (3d) 419, and 2020 ONSC 5606. REASONS FOR DECISION A. Background Facts [1] The appellants, David Star, Pier 21 Asset Management Inc., and 8165246 Canada Inc., (hereinafter referred to as the “Defendants”) appeal from the judgment and orders of Penny J. dated April 12, 2019, July 29, 2019, July 10, 2020, and July 27, 2020, and seek leave to appeal his costs award of September 25, 2020. [1] [2] The respondents, Emily Murray and 2327342 Ontario Inc., (hereinafter referred to as the “Plaintiffs”), cross-appeal from the same judgment and the orders dated April 12, 2019, July 29, 2019 and April 8, 2020, and seek leave to appeal the costs award of September 25, 2020. [3] Mr. Star launched Pier 21 Asset Management (“Pier 21”), a wealth management business, in 2005. That same year, he and Ms. Murray began an affair. [4] Ms. Murray agreed to join Mr. Star in launching Pier 21. She joined him in June 2006, initially as a consultant and then as a Senior VP. It was agreed that she would not be paid any salary for the first two years. In lieu of salary, she received 200,000 Class A shares of Pier 21. In addition, in exchange for her decision to leave her secure job to help found the company, she received an additional 100,000 Class A shares. Her 300,000 shares represented 16% of the company’s Class A shares. [5] Another investor, Frank Santangeli, invested $150,000 in Pier 21 and received 150,000 Class B non-voting shares. [6] In June 2006, Ms. Murray entered into an employment agreement. It provided that cash bonuses or dividend distributions could be issued in addition to her annual salary based on earnings and profitability as well as her contributions with the final amount being at the discretion of Mr. Star in his capacity as President and CEO. Ms. Murray entered a second employment agreement consistent with that of other senior employees in November 2013. [7] The individual parties’ affair ended in 2009. [8] In 2011, the company and Mr. Star bought out Mr. Santangeli’s Class B shares. In addition, in the spring of 2012, Ms. Murray entered into an agreement (the “Share Purchase Agreement”) whereby Pier 21 redeemed 142,250 Class A shares owned by Ms. Murray at $3.42 per share for a total of $486,495. As a result, Mr. Star owned 90.9% of the Class A shares and Ms. Murray 9.1%. [9] Meanwhile, the company’s assets under management grew from zero when Ms. Murray joined to $3.2 billion when she left at the end of 2014 and increased to $3.65 billion by February 27, 2015, the valuation date. Revenues amounted to almost $15 million at the end of 2014. [10] In 2014, Ms. Murray and Mr. Star began discussing her exit from the company. When Ms. Murray left in December 2014, Mr. Star refused to buy out her interest in the company. Ms. Murray commenced oppression proceedings seeking, among other things, the reversal of the 2012 Share Purchase Agreement which had reduced her interest from 16% to 9.1%, an order requiring Mr. Star to purchase her remaining interest, and equitable damages. B. Trial Judge’s Reasons [11] The trial judge declined to set aside the 2012 Share Purchase Agreement. He was unable to conclude on a balance of probabilities that the Share Purchase Agreement defeated Ms. Murray’s reasonable expectations and that the Agreement was the product of conduct that was oppressive, unfairly prejudicial or unfairly disregarded her interests. He also concluded that the two-year limitation period expired well before February 2015 when she commenced her action. He found that the issue of the Agreement did not arise out of acts of ongoing oppression but was a discrete one-time event. [12] He held that Ms. Murray was entitled to the return of her capital in Pier 21. He noted that Mr. Star at the opening of trial had made a with prejudice offer to purchase her shares based on a $20.8 million valuation of the company which the trial judge treated as an admission that she was entitled to the return of her capital at fair value. Even if not, Mr. Star’s refusal to repurchase her shares upon her termination was oppressive. [13] In valuing the company, he considered the opinions of the experts, Susan Glass, the expert called by the Defendants, valuing the company at $20.8 million and John Temple, the expert called by the Plaintiffs, proposing a value of $52.8 million. The trial judge held that both experts were qualified to give opinion evidence on the fair value of Pier 21 on the valuation date. The Defendants did not object to Mr. Temple being so qualified but attacked his qualifications, attitudes and conclusions as going to weight. [14] The trial judge found that both experts had excellent though different qualifications and he was not prepared to say that the opinions of one were overall to be preferred over the other. He therefore addressed their opinions on an issue by issue basis. He concluded that the company should be valued at $39.1 million, a figure which was later amended to $39.3 million due to a calculation error. The share purchase price for Ms. Murray’s shares would accordingly be $3,576,300, rather than the $1.8 million as proposed by the Defendants based on the valuation by Ms. Glass. [15] He also awarded Ms. Murray equitable damages in the amount of $605,579 (equal to two years’ salary and dividends for that period) and, in an addendum dated April 8, 2020, he determined that the transaction giving effect to the judgment should be structured as a repurchase by Pier 21. C. Discussion (1) Fresh Evidence [16] The Defendants seek leave to admit fresh evidence. [17] The fresh evidence consists primarily of time dockets of the Plaintiffs’ expert, John Temple. At trial, Mr. Temple testified that he spoke with Peter Tolnai, Ms. Murray’s husband. He testified that Mr. Tolnai was present in meetings with Ms. Murray. Ms. Murray also testified that Mr. Tolnai was involved in the discussions and that it was he who had sourced Mr. Temple. [18] Mr. Temple testified that Mr. Tolnai did not provide any input “to my evaluation” and that he was not used as a source of information “for my valuation because I didn’t consider him to be knowledgeable with this industry.” [19] Mr. Temple’s report, served by the Plaintiffs, was dated June 2017. The Defendants served Ms. Glass’ report, dated September 2017, in reply, and the Plaintiffs delivered a rebuttal report dated December 2017. [20] The dockets of Mr. Temple that are in issue were produced by the Plaintiffs in support of their request for costs. This panel determined that any privilege attaching to the dockets had been waived. [21] The dockets speak of “[f]irst review of Peter’s draft” on October 31, 2017 and “[m]arkup of Peter’s draft of Rebuttal Letter” on November 1-3 which the Defendants infer relates to the Plaintiffs’ reply to their expert’s report. [22] The Defendants urge us to conclude that this evidence passes the test for admission of fresh evidence because it was unavailable until after trial and was key in that it undermined the independence and credibility of Mr. Temple. In essence, they say he was an advocate for the Plaintiffs, and that his valuation opinion should be disregarded and replaced with that of Ms. Glass. [23] The Plaintiffs respond, among other things, that Mr. Temple was thoroughly cross-examined at trial and no request was made for his file. In any event, they say the test for admission has not been met. They also seek leave to admit fresh evidence in response to the Defendants’ fresh evidence. [24] The test for admission of fresh evidence as described in Palmer v. The Queen , [1980] 1 S.C.R. 759, at para. 775 and Sengmueller v. Sengmueller (1994), 111 D.L.R. (4th) 19 (Ont. C.A.), at p. 23, has not been met by the Defendants. Most notably, this fresh evidence would not likely be conclusive of any issue on appeal. We fail to see how the dockets are at odds with the evidence given by Mr. Temple at trial or that his certification to provide impartial advice to the court was materially compromised. His valuation of the company was produced in June 2017 and predated that of Ms. Glass and the impugned dockets. The mere fact that Mr. Tolnai may have provided some comments to the expert following receipt of Ms. Glass’ report does not mean that the expert became an advocate or lacked independence. We do not accept that he did as alleged by the Defendants. As Cromwell J. stated in White Burgess Langille Inman v. Abbott and Haliburton Co ., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 32, one should apply the jurisprudential concepts to the realities of adversary litigation. [25] We dismiss the request to admit the fresh evidence. It follows that the Plaintiffs’ motion for leave to admit fresh evidence in response is also dismissed. (2) Rule 59 and Reconsideration Motions [26] The Defendants also appeal from the order of Penny J., with reasons dated July 10, 2020, in which he refused to entertain the Defendants’ r. 59.06(2)(a) motion to re-open the trial on the ground that facts arose after his order was made that, if known at the time, would potentially have changed the result at trial. The Defendants also appeal from the order of Penny J., with reasons dated July 27, 2020, refusing to reconsider his July 10, 2020 decision. On these motions, t he Defendants relied on the same evidence that is the subject matter of their fresh evidence motion. Before this court, they argue that the judgment had not been signed and entered, the trial judge was not functus and he ought not to have simply referred the matter to this court to be addressed as a fresh evidence application. [27] This was a contentious and acrimonious proceeding. The trial judge gave his reasons for decision on April 12, 2019. As he could not find any reference in the oral submissions or a written response from the Defendants to the Plaintiffs’ request for elevated interest reflecting the time value of payment for her shares, he deferred a finding on that issue. Both parties then brought motions to amend under r. 59.06. On July 29, 2019, among other things, the trial judge increased Ms. Murray’s equitable damages from $278,706 to $605,579 based on a calculation error and dismissed her request for elevated interest. [28] There also arose an issue as to how the share purchase transaction was to be structured. The trial judge determined that he had jurisdiction to decide that issue on December 13, 2019, and he set out a process for the filing of additional evidence, the conduct of cross-examinations and the filing of written submissions, all of which was completed on April 1, 2020. He released his reasons on the transaction structure on April 8, 2020. In June 2020, following a review of background material in support of the costs request of the Plaintiffs, the Defendants prepared another r. 59.06 motion. On July 10, 2020, the trial judge issued an endorsement declining to hear the motion. In doing so, although not attributing the delay to either of the parties, he observed that the trial had already dragged on for far too long. The Defendants then brought another motion asking him to reconsider his endorsement which he also declined to entertain on July 27, 2020. On September 25, 2020, he released his reasons for costs. [29] Placed in context, it was understandable that the trial judge was reluctant to embark on a further proceeding between the parties. [30] The Defendants concede that the trial judge had the power to control the process of the case. Litigation cannot be never ending. In this case, the trial judge could have proceeded with the r. 59.06 motion, thereby continuing these already protracted proceedings, declined to hear the motion or dismissed it. He clearly was concerned about the passage of time, reasons for judgment having been released more than one year earlier. It was facially evident from a review of the fresh evidence that it would not meet the threshold for admission. [31] The r. 59.06 motion was properly returnable before the Superior Court of Justice. Although it would have been preferable for the trial judge to have given reasons and dismissed the motion, in the end result, it is of no moment. It follows that the appeal relating to the trial judge’s refusal to reconsider that decision must also fail. [32] For these reasons, we dismiss the Defendants’ grounds of appeal based on the trial judge’s failure to consider the r. 59.06 motion and to reconsider it. (3) Equitable Damages [33] On the issue of equitable damages, the Defendants submit that the award gave Ms. Murray an unwarranted windfall. They argue that once the trial judge directed the Defendants to repurchase her shares at fair value, the oppression was remedied. They state that in her negotiations with Mr. Star in September 2014 and in her trial testimony, she stated she would resign if she received a fair price for her shares and she did not expect anything more. The damages awarded were for wrongful dismissal but were improperly disguised as equitable damages. [34] As stated by the Supreme Court in Wilson v. Alharayeri , 2017 SCC 39, [2017] 1 S.C.R. 1037, at para. 59, the Canada Business Corporations Act , R.S.C. 1985, c. C-44 vests the trial judge with broad discretion when dealing with the oppression remedy and an appellate court should adopt a deferential stance in the absence of reviewable error or a manifestly unjust result. Under the oppression provisions, the court may make any order it thinks fit. The appellate court’s power of review is limited: Naneff v. Con-Crete Holdings Ltd . (1995), 23 O.R. (3d) 481 (C.A.), at pp. 486-87. The remedy is to rectify oppression or certain unfair conduct. As mentioned in that decision, the oppression remedy operates as corrective justice. [35] Here the trial judge found that the refusal to redeem Ms. Murray’s shares on termination was oppressive and her termination was “closely connected” to her status as shareholder. “They were inextricably intertwined” and her reasonable expectations were thwarted. She had a reasonable expectation that she would not be terminated in the manner she was. Based on the record before him, it was open to the trial judge to make that determination. We see no reason to interfere. [36] We also reject the Defendants’ alternative submissions that Ms. Murray’s equitable damages should be reduced by 25% to reflect the remuneration she received from June 2014 when she first broached the question of her departure from Pier 21, or by the amount of the discretionary dividend that may not have been awarded. We see no error in the trial judge’s assessment of the equitable damages that he found were caused by the Defendants’ oppressive behaviour in forcing Ms. Murray’s departure from Pier 21 contrary to her reasonable expectations. (4) Expert Valuation Evidence [37] As for the Defendants’ submissions relating to the experts’ evidence, in essence, the Defendants seek to reargue the trial judge’s factual findings. They say he erred in equating the experience of Ms. Glass with Mr. Temple. The Defendants did not object to Mr. Temple being qualified as an expert and the trial judge properly received and considered his evidence. He carefully reviewed their respective positions on each issue and reached a reasonable conclusion on the valuation of Pier 21. We see no palpable and overriding error in his treatment of the valuation of the company. Nor are we persuaded that the decision is manifestly unjust or clearly wrong. [38] We will address the issue of costs raised by the Defendants at the same time as we address the Plaintiffs’ request for leave to appeal costs. (5) Plaintiffs’ Grounds of Appeal [39] Turning to the grounds of appeal advanced by the Plaintiffs, they raise six issues. [40] First, the Plaintiffs submit that the trial judge erred in refusing to find a fiduciary relationship between Mr. Star and Ms. Murray. We disagree. The parties were not in a partnership or trust relationship but were shareholders of the same corporation who did not owe each other fiduciary duties. Mr. Star did not undertake to act in Ms. Murray’s best interests nor did Ms. Murray repose any trust in him. Here Mr. Star owed fiduciary duties to the corporation, not to Ms. Murray: see BCE Inc. v. 1976 Debentureholders , 2008 SCC 69, [2008] 3 S.C.R. 560, at paras. 37, 66. In any event, even if the trial judge had found a fiduciary relationship and a breach of a fiduciary duty, we fail to see that additional compensation beyond what the trial judge already had ordered would be merited. [41] Second, Ms. Murray submits that the trial judge erred in holding that there was insufficient evidence of her opposition to the 2012 Share Purchase Agreement because there was no contemporaneous documentary evidence. [42] We reject this argument. First, that is not what the judge said. He said at para. 28, that he found it difficult to believe that, if she felt as strongly then about the Share Purchase Agreement as she maintains now, there was no email, note or minute of any kind recording her concerns to Mr. Star and no attempt to seek legal advice. He recognized at para. 22 that she had a lawyer helping her negotiate the draft shareholders’ agreement the previous year, but she made no effort to seek legal advice about the repurchase of her shares until much later. He also referenced the evidence that she raised concerns with two friends at the time about the buyout of her shares. The trial judge was not imposing a requirement for contemporaneous documentary evidence. It was open to the trial judge to weigh the conflicting evidence from the parties and conclude that the Plaintiffs had not met the burden of proof. [43] We also agree with the trial judge’s analysis of the limitation issue. We would accordingly dismiss this second ground of appeal. [44] Third, the Plaintiffs submit that the trial judge erred in the quantum of equitable damages because they failed to recognize that the Defendants have had the use of Ms. Murray’s capital since 2015. They submit that these additional damages could take the form of an increased interest rate or an increased award. [45] The trial judge considered the Plaintiffs’ request in the context of the Defendants’ request for a credit for the amount Ms. Murray earned on the investment of the proceeds of the sale of the 6.9% of Class A shares. The Plaintiffs claimed their loss should be calculated on the same basis. They claimed the compound return Ms. Murray actually earned on the capital arising from the 2012 repurchase of shares, which was 10.38%. They sought this return on a compounded basis on all amounts awarded from February 27, 2015. [46] The trial judge rejected the Plaintiffs’ arguments. He concluded that the pleadings did not support the request. The Plaintiffs had pleaded ss. 128 and 129 and not s. 130 of the Courts of Justice Act , R.S.O. 1990, c. C.43 and they did not seek to amend or provide an explanation for their failure to do so: at paras. 33-35. Moreover, he reasoned that these issues were raised after the conclusion of the evidence at trial and to permit the claims at this stage would be seriously prejudicial to the Defendants. [47] The reasons given by the trial judge support his rejection of the Plaintiffs’ claim for a compounded interest rate of 10.38% since 2015. While the trial judge could have exercised his discretion to award compound interest as part of the oppression remedy he otherwise granted, he was not obligated to do so: see Ford Motor Co. of Canada, Ltd. v. Ontario Municipal Employees Retirement Board (2006), 263 D.L.R. (4th) 450 (Ont. C.A.), at para. 181, leave to appeal refused, [2006] S.C.C.A. No. 77. There was no palpable and overriding or legal error in his reasoning. We dismiss this ground of appeal. [48] Fourth, the Plaintiffs ask this court to interfere with the trial judge’s dismissal of Ms. Murray’s claim for punitive damages. We see no error that allows for appellate intervention. It is not for this court to substitute its discretion for that of the trial judge. [49] Fifth, the Plaintiffs submit that the trial judge erred in the selection of the transaction structure when he required Pier 21 to repurchase Ms. Murray’s shares for cancellation rather than requiring the Defendants to purchase the shares of Ms. Murray’s holding company, 2327342 Ontario Inc., which would be more tax efficient for her. [50] Again, the trial judge’s reasons for decision on the transaction structure are detailed and sound. There was no evidence to support a reasonable expectation that she would be entitled to a structure that would minimize her tax liability to the exclusion of other considerations, one of which is that the Defendants would inherit potential unknown liabilities in 2327342 Ontario Inc. (6) Costs Awards [51] Lastly, both parties also take issue with the trial judge’s costs award. [52] The Defendants state that the trial judge made errors in his costs decision because he required them to pay one third of the disbursements paid to Mr. Wintrip who delivered no report and did not testify; he rejected most of Mr. Temple’s opinions but still required the Defendants to pay his fees; and the Defendants had to defend against valuation claims that the court rejected. [53] The Plaintiffs state that he erred in holding that oppressive conduct does not necessarily entail elevated costs awards and by granting a distributive costs award contrary to Oakville Storage & Forwarders Ltd. v. C.N.R. Co . (1991), 84 D.L.R. (4th) 326 (Ont. C.A.). [54] Absent an error in principle or an award that is plainly wrong, a trial judge’s exercise of discretion in the award of costs is entitled to deference: Hamilton v. Open Window Bakery Ltd ., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. The trial judge found that by any measure, Ms. Murray was the effective “winner” in the litigation and was prima facie entitled to her partial indemnity costs. [55] The trial judge instructed himself not to make a distributive costs award but followed this court’s guidance in Eastern Power Limited v. Ontario Electricity Financial Corporation , 2012 ONCA 366, and considered that some analysis of relative success may be appropriate in determining quantum of entitlement. He found that the post-trial motion on the transaction structure was free-standing and that the costs incurred were substantively and temporally distinct from all the other costs of the trial. He accordingly awarded costs to the Defendants who were successful on this motion. This was not an error in principle nor plainly wrong. The same is true with the trial judge’s treatment of the claim for elevated costs, the Defendants’ arguments about the Wintrip invoice, which was discussed in detail at paras. 63-66 of the trial judge’s decision, and his treatment of the costs as they relate to the valuation claims. We see no reason to interfere. D. Disposition [56] For all of these reasons, we dismiss the appeal, dismiss the cross-appeal, and refuse both parties leave to appeal costs. In addition, we dismiss the motion and cross-motion for admission of fresh evidence. [57] The parties are to make brief (not to exceed five pages in length) submissions on costs of the appeal, the Plaintiffs to file theirs by June 18, 2021, and the Defendants by June 25, 2021. “S.E. Pepall J.A.” “L.B. Roberts J.A.” “J.A. Thorburn J.A.” [1] Reasons were released on April 12, July 29, and December 13, 2019, April 8, July 10, July 27, and September 25, 2020 but were reflected in one judgment bearing two dates: April 12, 2019 and September 25, 2020.

COURT OF APPEAL FOR ONTARIO CITATION: Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 431 DATE: 20210616 DOCKET: M52435 (C69127) Fairburn A.C.J.O., Harvison Young and Jamal JJ.A. BETWEEN Sub-Prime Mortgage Corporation and Elle Mortgage Corporation Plaintiffs (Respondents/Responding Parties) and David Kaweesa , Jacqueline Kaweesa and Jeremy Kaweesa Defendants ( Appellants/Moving Parties ) AND BETWEEN David Kaweesa and Jacqueline Kaweesa Plaintiffs by Counterclaim (Appellants/Moving Parties) and Sub-Prime Mortgage Corporation, Elle Mortgage Corporation and Terry Walman Defendants by Counterclaim (Respondents/Responding Parties) Matthew Tubie, for the moving parties Ranjan Das, for the responding party Terry Walman Glenn Cohen, for the responding parties Sub-Prime Mortgage Corporation and Elle Mortgage Corporation Heard and released orally: June 8, 2021 by video conference REASONS FOR DECISION [1] The background to this motion is a mortgage enforcement action brought by a number of mortgagees who moved before Paciocco J.A. for an order for security for the costs of the appeal, among other things. The asset in issue is the heavily encumbered house owned by the moving parties. Paciocco J.A. granted the motion for security for costs. He also lifted the temporary stay on the enforcement of the writ of possession which the motion judge, Stinson J., had granted for 90 days, expiring May 11, 2021. The moving parties seek to set aside both orders and ask this court to grant an order staying Stinson J.’s order in its entirety. [2] We begin with the security for costs motion. We see no basis for setting aside Paciocco J.A.’s order in full or in part. There is no dispute that the correct test is as set out in r. 61.06(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 and applied in Heidari v. Naghshbandi, 2020 ONCA 757, 153 O.R. (3d) 756 . The moving parties argue that Paciocco J.A. erred in finding that there was “good reason to believe” that the appeal is frivolous and vexatious, and that the moving parties have insufficient assets in Ontario to pay the costs of the appeal. [3] We do not agree with the moving parties that Paciocco J.A. erred in finding that there is good reason to believe that the grounds of appeal are frivolous in that they are “devoid of merit, with little prospect of success”: see Heidari , at para. 10. Paciocco J.A. considered each ground of appeal advanced. [4] First, we see no error of law or fact in relation to the finding made by both Stinson J. and Paciocco J.A. that the pandemic did not frustrate the minutes of settlement. The pandemic was well underway when the minutes were executed in November 2020. [5] Second, we see no error on the part of Paciocco J.A. with respect to his treatment of the ground of appeal that the responding parties had failed to comply with the terms of the minutes requiring counsel to cooperate with the moving parties’ refinancing attempts. As Paciocco J.A. concluded, there is no evidentiary basis for that argument. [6] Stinson J., who presided over the underlying motion giving rise to this review, had extensive involvement with this matter and had conducted the settlement conference. One of the grounds of appeal is that Stinson J. erred in doing so. We do not agree with the moving parties’ claim that Paciocco J.A. erred in finding that there were grounds to believe that this ground was devoid of merit. In doing so, Paciocco J.A. specifically noted that r. 50.10(1) permits pre-trial conference judges to preside at the trial of an action with the written consent of the parties, which was expressly provided for in the minutes of settlement. The minutes of settlement provided, at para. 19, that Stinson J. would “remain seized of this action … for any purpose in connection with implementing these Minutes of Settlement”. Moreover, Stinson J. specifically raised the issue with counsel, who referred him to para. 19 in agreeing that he hear the contested motion. [7] In addition, we see no basis for interfering with Paciocco J.A.’s finding that the appeal is “vexatious” as it has been taken to annoy or embarrass the responding parties or conducted in a vexatious manner: see Heidari , at para. 10. Paciocco J.A.’s reasons for this finding are well grounded in the record and are owed deference by this court in the absence of palpable and overriding error or error in principle, which the moving parties have not shown. [8] With respect to the adequacy of the moving parties’ assets, the moving parties also claim that Paciocco J.A. erred in his application of r. 61.06(1)(a), which requires a finding that the appellant has insufficient assets in Ontario to pay the costs of the appeal. We see no error. The moving parties have not been making payments on the encumbrances on the house for a significant period of time and, in some cases, years. The quantum of accumulated interest, as Paciocco J.A. noted, “which only continues to mount, is staggering”. [9] With respect to the claim that Paciocco J.A. erred in refusing to continue the stay, it has already expired and is therefore moot. We see no basis for reinstating it now. [10] The motion to set aside the order of Paciocco J.A. is therefore dismissed. [11] Costs in the agreed amounts of $2,500 inclusive of disbursements and HST to Mr. Cohen’s clients, Sub-Prime Mortgage Corporation and Elle Mortgage Corporation, and $750 inclusive of disbursements and HST to Mr. Das’ client, Mr. Walman. “Fairburn A.C.J.O.” “A. Harvison Young J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ting (Re), 2021 ONCA 425 DATE: 20210616 DOCKET: M52338 (C68764) Rouleau, Hoy and van Rensburg JJ.A. In the Matter of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3, as amended And in the matter of a proceeding in the Hong Kong Special Administrative Region Re: James Henry Ting (in bankruptcy) Application of Cosimo Borrelli and Jacqueline Walsh of Borrelli Walsh Limited under section 269 of the Bankruptcy and Insolvency Act , R.S.C., 1985, c. B-3, as amended Ilan Ishai, for the moving parties, Cosimo Borrelli and Jacqueline Walsh of Borrelli Walsh Limited Andrew Rogerson and Arash Jazayeri, for the responding party, Andrew Henry Ting Heard: June 2, 2021 by video conference REASONS FOR DECISION [1] This is a motion to quash an appeal. [2] The appellant, and responding party in this motion, Andrew Henry Ting, seeks to appeal two orders made against him in the context of bankruptcy proceedings in Ontario involving his father, James Henry Ting. Mr. Ting, Sr. was adjudged bankrupt by a Hong Kong court in 2016. The following year the bankruptcy order was recognized by the Superior Court under s. 270 of the Bankruptcy and Insolvency Act (the “BIA”), and the moving parties, who are the trustees in bankruptcy of the bankrupt, were appointed as “foreign representatives” of the bankrupt as defined in s. 268. [3] On January 15, 2019, Penny J. granted an order in the bankruptcy proceedings enforcing a letter of request from the Hong Kong court, requiring the appellant to make certain productions and to attend an examination. After an unsuccessful attempt to appeal that order (the appeal was quashed and the appellant was denied leave to appeal by the Supreme Court of Canada), the appellant failed to attend for examination. The trustees brought a motion for contempt. By order dated October 5, 2020, Dietrich J. found the appellant in contempt and allowed him to purge his contempt within ten days. The appellant delivered a notice of appeal of that order. On February 8, 2021, the appellant was sentenced to seven days’ incarceration for contempt, to come into effect seven days after the final adjudication of the appellant’s appeal. The appellant served an additional notice of appeal in respect of the penalty order. [4] The appellant’s notices of appeal assert that he has a right of appeal under s. 193(a) of the BIA. He has also served the trustees with a motion for leave to appeal both orders under s. 193(e). That motion, which is to be heard by a single judge of this court, is scheduled for September. [5] This court has repeatedly held that an appeal from an order made in bankruptcy proceedings is governed by s. 193 of the BIA: Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited , 2012 ONCA 569, 95 C.B.R. (5th) 157, at para. 19; Wallace (Re) , 2016 ONCA 958, 43 (C.B.R.) (6th) 2010, at para. 7; Business Development Bank of Canada v. Astoria Organic Matters Ltd. and Astoria Organic Matters Canada LP (7 January 2019), Ontario, M49872 (C65512) (C.A.) (In Chambers), at para. 20; Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc. , 2021 ONCA 202 (In Chambers), at para. 18 . See also 2003945 Alberta Ltd. v. 1951484 Ontario Inc. , 2018 ABCA 48, 57 C.B.R. (6th) 272, at para. 11. An order will also be subject to the appeal routes under s. 193 (rather than under s. 6 of the Courts of Justice Act (the “CJA”)) where the order is made by a judge exercising powers conferred by the BIA: Business Development Bank of Canada v. Astoria Organic Matters Ltd. , 2019 ONCA 269, 69 C.B.R. (6th) 13, at paras. 29-31. [6] While an order may involve a bankrupt, or be made during the currency of bankruptcy proceedings, this is not determinative of whether an appeal from that order is governed by the BIA or CJA: Rusinek & Associates Inc. v. Arachchilage , 2021 ONCA 112, 87 C.B.R. (6th) 1; RREF II BHB IV Portofino, LLC v. Portofino Corporation , 2015 ONCA 906, 33 C.B.R. (6th) 9. For example, in Rusinek , an order made on an application pursuant to r. 14.05(3)(d) of the Rules of Civil Procedure , determining that a bankrupt’s trustee did not have the right to commence an equalization claim against the bankrupt’s former spouse, was appealable under s. 6(1) of the CJA. It was not an order made in bankruptcy proceedings, nor was the application judge exercising a power conferred on her by the BIA: at para. 15. [7] In our view, in the present case, the orders are subject to the appeal routes under s. 193 of the BIA. The appellant commenced his appeal relying on the provisions of the BIA. The orders under appeal were made in the bankruptcy proceedings of Mr. Ting, Sr. The appellant was brought into his father’s bankruptcy proceedings through the order of Penny J., with which he failed to comply, leading to the contempt order and penalty order. Penny J. expressly exercised a power under s. 272(1)(b) of the BIA, that provides, on application by a foreign representative, for an order respecting the examination of witnesses “concerning the debtor’s property, affairs, debts, liabilities and obligations”. Penny J. stated that he was satisfied that the orders enforcing the Hong Kong court’s letter of request and requiring the appellant’s examination, “fall squarely within s. 27[2](1)(b) of the BIA”. The orders under appeal were made in the context of the enforcement of the Penny J. order. [8] The appellant contends that he has a right to appeal the motion judge’s contempt order and the penalty order under s. 193(a) of the BIA, which provides for an appeal to this court “if the point at issue involves future rights”. [9] The appellant asserts that the appeal involves future rights because his appeal raises matters of procedural fairness – as one of his grounds of appeal, the appellant contends that the motion judge improperly refused to recuse herself after the moving parties’ counsel made allegations of criminal misconduct against him that were not supported by the evidence. [10] Future rights have been described as “rights which could not at the present time be asserted but which will come into existence at a future time”: Elias v. Hutchison , 1981 ABCA 31, 37 C.B.R. (N.S.) 149, at para. 28, cited with approval in Re Ravelston Corp. (2005), 24 C.B.R. (5th) 256 (Ont. C.A.), at para. 19. The question is whether the rights engaged in an appeal are future rights or presently existing rights that are exercisable in the future: Business Development Bank of Canada v. Pine Tree Resorts Inc. , 2013 ONCA 282, 115 O.R. (3d) 617 (In Chambers), at para. 16. [11] In support of the argument that his appeal engages future rights, the appellant relies on Canada Deposit Insurance Corp. v. Commonwealth Trust Co. (1993) , 35 C.B.R. (3d) 208 (B.C.C.A.) (In Chambers). In that case, the B.C. Court of Appeal held that the appeal of an order of a judge made under the Winding-up Act for refusing to recuse himself on the grounds of reasonable apprehension of bias, involved future rights. The statutory scheme however was different (s. 103 of the Act provided for appeal with leave from specific orders, including orders “involving future rights”), and the court did not analyze the issue, but accepted the concession of the respondent that the appeal as framed involved future rights, and that it was therefore open to the appellant to seek leave to appeal under the Act : at para. 3. [12] In Re Ravelston, Doherty J.A. noted that “[e]arlier cases…that would give the phrase ‘future rights’ a ‘wide and liberal interpretation’ are inconsistent with the contemporary approach to statutory interpretation”: at para. 17. Indeed, more recent case law applying s. 193 of the BIA confirms that issues of procedural fairness typically engage a party’s present, and not future rights. In 2003945 Alberta Ltd. , a case involving the appeal of an order in receivership proceedings, directing the summary trial of an issue, the court rejected the argument that future rights were engaged because the order restricted the appellant’s rights in a future trial to call necessary witnesses. The court concluded that an appeal of an order on the grounds of procedural fairness implicates a party’s present , not future, rights: at para. 19. See also Simonelli v. Mackin , 2003 ABCA 47, 39 C.B.R. (4th) 297 (In Chambers), at para. 11. [13] Similarly, in the present case, the appellant’s right to procedural fairness was a present right that existed at the time of the hearing before the motion judge. His appeal of the contempt order and the penalty order do not engage future rights within the scope of s. 193(a) of the BIA. [14] For these reasons the appeal is quashed. Costs to the moving parties in the agreed amount of $5,000, inclusive of HST and disbursements. “Paul Rouleau J.A.” “Alexandra Hoy J.A.” “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Campbell, 2021 ONCA 423 DATE: 20210615 DOCKET: M52452 (C66490) Benotto, Trotter and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Stephen Campbell Appellant Stephen Campbell in person Philippe Cowle, for the respondent Heard: June 10, 2021 by videoconference REASONS FOR DECISION [1] Mr. Campbell brings this motion for an order that a fresh psychiatric report be prepared. Mr. Campbell was convicted of attempted murder on August 3, 2017. The defence of not criminally responsible (“NCR”) was rejected by the trial judge. [2] The appellant seeks a fresh psychiatric report on the basis that the original psychiatric report relied upon by the Crown at the trial was “laced with errors, untruths and statements that I never made”. The appellant contends that a new psychiatric report would support the NCR defence. [3] Nothing of substance has changed since the original psychiatric reports were prepared for trial. In that regard, we note that, in addition to the psychiatric report filed by the Crown, a separate psychiatric report was filed by the defence. Both of those reports were carefully reviewed by the trial judge. For the reasons that the trial judge gave at the time, she concluded that the NCR defence was not established. [4] The preparation of a post-conviction psychological assessment for the purposes of treatment recommendations does not change the situation. It remains the fact that there is no proper basis for ordering a fresh psychiatric report in these circumstances. [5] The motion is dismissed. If any problems develop with getting the appeal scheduled for hearing, the matter can be addressed before Trotter J.A. “M.L. Benotto J.A.” “Gary Trotter J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Codina, 2021 ONCA 422 DATE: 20210615 DOCKET: M52542 (C69153) Hoy, Hourigan and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Angelina Codina Applicant (Appellant) Angelina Codina, acting in person Vanita Goela, for the respondent Heard: in writing REASONS FOR DECISION [1] The court recently dismissed the applicant’s appeal of the dismissal of her application for a writ of habeas corpus , alleging that she has been unlawfully detained and should be released. [2] In rejecting her argument that the application judge’s reasons were insufficient, the court commented that the applicant made a jurisdictional argument without reference to any authorities or supporting materials. [3] Seizing on that comment, the applicant seeks to file what she characterizes as fresh evidence and, based on it, asks the court to re-open her appeal. [4] Her application is without merit. [5] What the applicant characterizes as fresh evidence consists of further legal argument that the trial court did not have jurisdiction to try the offences of which she was convicted. The proposed fresh evidence does not satisfy the test for the admission of fresh evidence: Palmer v. The Queen , [1980] 1 S.C.R. 759, at p. 775. Moreover, the further arguments she makes now are not relevant to the sufficiency of the application judge’s reasons. [6] The application is dismissed. “Alexandra Hoy J.A.” “C.W. Hourigan 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. R.C., 2021 ONCA 419 DATE: 20210615 DOCKET: C64312 Doherty, van Rensburg, and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and R.C. Appellant Mark C. Halfyard, for the appellant Catherine Weiler, for the respondent Heard: April 29, 2021 by videoconference On appeal from the conviction entered by Justice Kofi N. Barnes of the Superior Court of Justice on January 30, 2017. Thorburn J.A.: OVERVIEW [1] On January 30, 2017, the appellant, R.C., was convicted of sexual assault, sexual interference, incest, and assault. The trial judge provided oral reasons for these convictions (“the Oral Reasons”). In his reasons, the trial judge stated: I will at the end of my decision order a transcript of my decision, at which time, I will include excerpts of the questions and answers verbatim from the transcript to illustrate my areas of concern [with the appellant’s evidence]. [2] On September 23, 2017, the appellant was sentenced to eight years in custody less 30 days’ pre-trial custody. [3] On January 9, 2019, nearly two years after the Oral Reasons were given, the trial judge released edited reasons for the convictions (“the Edited Reasons”). [4] The appellant now raises three grounds of appeal in relation to the convictions entered in January 2017: a) The trial judge failed to properly assess the material inconsistences in the complainant’s evidence and the reasons he gave for resolving those inconsistencies were illogical. As such, he failed to properly apply the principles set out in R. v. W.(D.) , [1991] 1 S.C.R. 742; b) The trial judge applied more scrutiny to the appellant’s evidence than he did to the complainant’s evidence; and, c) The trial judge provided insufficient reasons. [5] The appellant claims that in assessing his three grounds of appeal, this court should consider only the Oral Reasons rendered on January 30, 2017 not the Edited Reasons released on January 9, 2019. The appellant further asserts that the Oral Reasons are insufficient to support a conviction on any of the charges. THE FIRST ISSUE: WHETHER THE ORAL OR EDITED REASONS SHOULD BE CONSIDERED ON THIS APPEAL [6] The appellant filed a motion to consider fresh evidence on the consent of both parties in support of his request that this court consider only the Oral Reasons. The fresh evidence includes both the Oral Reasons and the Edited Reasons, and a blackline comparison of the changes. [7] In the Edited Reasons the trial judge did not disavow his Oral Reasons. [8] The Edited Reasons (a) contain further explanations of the trial judge’s reasons for rejecting the appellant’s evidence; (b) omit two grounds for rejecting the appellant’s evidence (relating to income he reported to immigration authorities in support of his immigration application for his children, and how long he remained employed at his place of work); and (c) provide further reasons for why the trial judge found the complainant’s evidence to be credible. The changes between the Oral and the Edited Reasons are succinctly set out in the appendices to the respondent Crown’s factum. [9] The changes in the Edited Reasons are both extensive and substantive. [10] A trial judge’s reasons are presumed to be an accurate reflection of the reasoning that led the trial judge to the decision. That presumption, while strong, can be rebutted by cogent evidence. For example, reasons given long after a verdict was rendered and subsequent to the commencement of an appeal, can compel the conclusion that the reasons are not an accurate reflection of the decision-making process engaged in by the trial judge and that the trial judge engaged instead in a result-driven consideration of the evidence. This is particularly true where – as here – the reasons were rendered after an appeal had been commenced: R. v. Teskey , 2007 SCC 25, [2007] 2 S.C.R. 267, at paras. 18‑19; R. v. Wang , 2010 ONCA 435, 263 O.A.C. 194, at paras. 9-12. [11] In Wang , at para. 9, this court observed that “it is inappropriate to modify, change or add to a transcript of oral reasons rendered in court.” At a minimum, where oral reasons are given and written reasons issued sometime later, changes that represent “something substantially different from what in fact occurred in the courtroom” are not permitted: Wang , at para. 10. [12] The presumption of validity has been rebutted in this case by virtue of the substantive changes made in the Edited Reasons. [13] The Edited Reasons therefore cannot be relied upon to justify the convictions. However, the Oral Reasons remain intact. The appellant does not argue those reasons do not reflect the trial judge’s reasoning process. Instead, the appellant argues that reasoning process is legally flawed. The outcome of the appeal turns on those arguments: see R. v. Arnaout , 2015 ONCA 655, 127 O.R. (3d) 241, at para. 60. [14] Therefore, only the Oral Reasons of 2017 will be considered in reviewing these grounds of appeal as they were issued contemporaneously with the appellant’s convictions and have not been disavowed. THE SECOND ISSUE: WHETHER THE ORAL REASONS ARE SUFFICIENT TO JUSTIFY THE CONVICTIONS [15] The second issue is whether the Oral Reasons are sufficient to justify the verdict. [16] In this case, credibility was critical as there were no witnesses to any of the incidents. Considerable deference is afforded to trial judges who see and hear the witnesses firsthand, provided the reasons as a whole disclose an intelligible basis for the verdict: R. v. G.F. , 2021 SCC 20. [17] In order to assess whether the reasons are sufficient to justify the verdict, I will briefly review the evidence before addressing the legal issues raised and the reasons of the trial judge. (1) The Evidence Adduced at Trial [18] The appellant is the complainant’s father. At the time of trial, the complainant was 22 years old. She was born in Jamaica and moved to Canada in 2007. The appellant was the complainant’s immigration sponsor. The complainant lived with other family members until 2008, when she and her older sister moved into the home of the appellant’s friend Vivienne, where the appellant also resided. [19] The complainant says she was sexually assaulted by the appellant six times in 2008-2009, when she was 13 or 14 years old. She claims the assaults took place at Vivienne’s home, at a Motel 6, and in the bedroom of another apartment she and her father shared with others. The complainant’s evidence [20] At the time of the first alleged assault, the complainant said she was sleeping in the basement of Vivienne’s house, lying on her stomach, when she felt the appellant touch her vagina over her clothes, shift her underwear to the side, and then penetrate her vagina with his penis. She said she did not remember if he ejaculated. She said she was shocked and confused but told no one. [21] The second incident is not the subject of this appeal, as the appellant was acquitted of this charge. I will describe the trial judge’s approach to this charge in greater detail below. [22] The complainant testified that the third and fourth incidents took place while she and her father were living in a Motel 6. On the third occasion, the complainant said she was in the bathroom when the appellant called her out, asked her to look through the window to see if a car was there, pulled her onto the bed, and had sexual intercourse with her. In so doing, she said the appellant pushed her toward him, took her towel off, shifted her underwear to one side and inserted his penis into her vagina. The complainant said she knew he was using protection because she could feel it though she did not see him putting it on. She claimed she was screaming. [23] On the fourth occasion, the complainant said the appellant approached her while she was sleeping on her stomach. She felt something on her thighs, the appellant shifted her underwear to one side and inserted his penis into her vagina. She testified that she was on her side when this happened. She said she asked him to stop but he did not. She did not know if he ejaculated. [24] The complainant testified that, on the fifth and sixth occasions, she and the appellant were sharing one room in a two-bedroom apartment. The second bedroom was occupied by two women tenants and a baby. The complainant said she was sleeping on a mattress on the floor, the appellant touched her legs and had intercourse with her. She did not remember if the other tenants were home or whether the appellant used protection. [25] On the sixth occasion, she said the appellant came into the room and asked her to take off her clothes. She replied “Why?” and he said, “Just take off your clothes.” She was wearing a tank top. She said he then grabbed her, put her on the ground and had intercourse with her. She did not remember whether he ejaculated. She said they fought and he punched her on the lips with a closed fist. She claimed her lips were bleeding. In cross-examination she said that her lips were cut on the inside. [26] Shortly thereafter, the complainant spoke to her school guidance counsellor and said she had been abused. She did not tell the counsellor the nature of the abuse. She was picked up by her aunt and spent the rest of the school year living with her grandmother. [27] She never lived with the appellant again and returned to Jamaica at the end of that school year. While in Jamaica, she registered a complaint to the Jamaican police about the alleged sexual assaults. Also while in Jamaica, she became pregnant by a boyfriend. The complainant said that when her father called and asked her if she was pregnant, she lied and said she was not. She later admitted that she was pregnant. [28] Her father arranged for her to return to Canada to have the baby. The complainant said she “snuck” her passport from her mother’s home and did not tell her mother she was coming to Canada. When she arrived in Canada, in 2012, the complainant was told by her aunt that she would have to live with her father. The complainant refused and called police to report the allegations of sexual assault. The police interviewed her and sent her to a shelter. Other Crown witnesses’ evidence [29] Vivienne’s daughter testified that, when she was 7 or 8 years old, she went into the basement of Vivienne’s home and saw the appellant lying on top of the complainant with sheets pulled over their shoulders. She said the appellant started yelling at her, telling her this was not her business and that she should leave. In cross-examination, she said he may have simply been reaching over the complainant to get to the television remote control. The trial judge concluded that the disparities in her account left him in a reasonable doubt about what she saw. As such, he did not rely on her evidence. [30] The appellant’s adult daughter also testified that, while living in Vivienne’s home, she saw the complainant and the appellant lying in bed together in an inappropriate position with the complainant on top of the appellant. She said that when she told the complainant that she should not be in that position at her age, the complainant “did not react”. [31] Vivienne testified and confirmed that the complainant preferred to sleep in the basement with her father despite having other sleeping options available. She said she never saw anything inappropriate take place. The appellant’s evidence [32] The appellant denied all of the allegations of sexual assault. He admitted that he assaulted the complainant by hitting her and slapping her twice on the arm and may have hit her on the mouth. He said he did so after they had had an argument because the complainant kept coming home late. He testified that the day after their physical fight, the complainant went to school, and he heard from his sister that the complainant had gone to live with her. [33] The appellant testified that the complainant told him one of her friends falsely accused her father of sexual assault so that she would get her own place to live. He suggested that this was the complainant’s motive to fabricate the allegations. [34] He also testified that when she returned from Jamaica, she told him she wanted to go on welfare and live on her own. He told her she could not as he was her immigration sponsor and financially responsible for her. She left and never returned. (2) Analysis and Conclusion as to Whether the Verdict Was Justified The law [35] Considerable deference is afforded to trial judges on findings of credibility as, unlike appeal courts, trial judges see and hear the witnesses firsthand: R. v. M. (R.E.) , 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 28 and 32. The reasons must however, when read in context of the record as a whole, “disclose an intelligible basis for the verdict capable of permitting meaningful appellate review”: M. (R.E.) , at para. 53; R. v. Vuradin , 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10-19. [36] When assessing credibility and two different versions of events are presented, the principles set out in R. v. W.(D.) are to be applied. In short, (i) if the accused’s evidence is believed, the accused must be acquitted; (ii) if the accused’s evidence is not believed but the court is left in reasonable doubt by that evidence, the accused must be acquitted; and (iii) even if the judge is not left in doubt by the evidence of the accused, the court must still ask whether, on the basis of the evidence that is accepted, the court is convinced beyond a reasonable doubt by that evidence of the accused’s guilt. [37] Trial judges are not required to address every inconsistency in the evidence of a witness. They are however obliged to explain how they resolve major inconsistencies. Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a “carelessness about the truth” while inconsistencies about peripheral issues are of less significance: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also R. v. Dinardo , 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 30-31. [38] At issue in this case is whether, in convicting the appellant, the trial judge (a) failed to properly assess the material inconsistences in the complainant’s evidence and the reasons he gave for resolving the inconsistencies were illogical, (b) applied more scrutiny to the appellant’s evidence than he did to the complainant’s evidence, and/or (c) provided insufficient reasons. The trial judge’s treatment of the appellant’s evidence [39] The trial judge made reference to W.(D.) , although he did not outline the elements of the three-part test to be followed when assessing credibility where there are two different versions of events presented. The trial judge recognized that this was a case that turned on credibility and noted that the burden of proof was on the Crown. [40] The trial judge recounted the testimony of each of the witnesses at trial. [41] He identified seven areas of concern in the appellant’s testimony. These are (i) the income the appellant reported to immigration authorities in support of his immigration application for his children; (ii) the duration and circumstances of his employment; (iii) how long he slept in Vivienne’s room and when he moved to the basement; (iv) the options available to him for sleeping arrangements when, according to him, the complainant insisted she wanted to sleep in the basement with him; (v) certain evasive answers given as to whether or not the complainant was sleeping with him in bed when Vivienne’s daughter came into the basement bedroom; (vi) his unresponsive and evasive answers given in cross-examination when asked whether he ever slept in the same bed as the complainant; and (vii) the appellant’s testimony in chief that he had no contact with the complainant after she moved to his sister’s house in April (before moving back to Jamaica in July). However, in cross-examination, he spoke of drive-by sightings of the complainant during this period. [42] The trial judge concluded that “[it is based on] the cumulative effect of all of these types of changes in the testimony and others that I will lay out in my transcribed reasons, that I conclude that [the appellant] was not being truthful and, in fact, I reject his evidence and conclude that it does not raise a reasonable doubt in my mind, nor do I accept it.” The trial judge’s rejection of certain evidence adduced by the Crown [43] The trial judge also did not accept the evidence of Vivienne’s daughter and the appellant’s older daughter that they had observed the appellant in bed with the complainant doing inappropriate things. The trial judge held that Vivienne’s daughter was “very young when she made her observations. Several years have passed prior to her testifying in this trial and she said it was possible that [the appellant] was leaning over [the complainant] to get the remote”. He concluded that “her willingness to accept that it could simply have been an act of reaching for the remote create the doubt in my mind on what she saw.” [44] He also rejected the appellant’s daughter’s evidence that she saw the complainant on top of the appellant in bed. In cross-examination she said that the appellant was “sleeping when she made her observations about what she described as inappropriate”. He concluded that “her testimony does not add anything to the Crown’s case… Her evidence is inconclusive at best. Ultimately, I find it to be a red herring.” The trial judge’s treatment of the complainant’s evidence [45] The trial judge acquitted the appellant of the second instance of alleged sexual assault because the complainant’s inconsistency in versions of the events led him to have some concerns about her recollection of the events, leaving him in a reasonable doubt as to whether the events took place. Those versions of events are as follows: i. In examination-in-chief she said he pinched her vagina over her clothes but on cross-examination said he tapped her vagina. In re-examination she said it was a pinch; ii. In examination-in-chief she said that the appellant asked her if she liked it and she said “no” but on cross-examination she did not remember if he said anything to her; and, iii. On cross-examination she said the appellant’s hand was not just resting on her leg, then indicated that she did not recall his hand resting on her leg, and then said he was rubbing her leg with his right hand. [46] The trial judge reviewed her testimony and concluded that “[a]t the very minimum, it leaves me in a reasonable doubt as to whether this specific incident she described actually took place”. He therefore acquitted the appellant of this assault not on the basis of an adverse credibility finding, but rather, on the basis of the reliability of her evidence in respect of this one incident. [47] Importantly, the complainant was not cross-examined in respect of any of the other five assaults of which the appellant was convicted. [48] The trial judge found there was a second inconsistency relating to the complainant’s reasons for reporting the sexual assaults in 2012. In examination‑in-chief, she testified that she went to the police at her mother’s urging after her aunt told her she was going to have to live with her father again. In cross-examination she denied that the only reason she reported the sexual assaults to the police was so that she would no longer have to live with her father. Later, in cross‑examination, she said she told the truth at the preliminary inquiry when she said that, in her mind, she disclosed the assaults because the only way to avoid living with her father was to go to the police. [49] However, the trial judge did not accept the defence theory that this demonstrated that the complainant was not believable and that her only motive in going to police was her desire to live on her own. [50] The trial judge correctly noted that the defence theory was belied by the fact that “as early as 2010, the complainant had already made an allegation about sexual assault by her father to the police in Jamaica. This is before she had returned to Canada and before she had found out that at some point, she was going to have to live with her father.” For this reason, this inconsistency did not adversely affect the trial judge’s assessment of the complainant’s credibility. [51] While summarizing her testimony, the trial judge noted that the complainant’s testimony contained several other inconsistencies between both (i) her prior statements and (ii) the appellant’s testimony, namely: i. She said she had little contact with the appellant as a child, growing up in Jamaica, though she later admitted she saw him regularly; ii. When she first came to Canada, she said she first stayed with her grandmother when it was in fact her aunt; iii. She initially said her aunt sponsored her to come to Canada, though she later acknowledged that the appellant was her sponsor; iv. She claimed the appellant owned a gun though the appellant denied this and there was no evidence he had one; v. She testified that she lied to the appellant about her pregnancy when she first became pregnant by her boyfriend in Jamaica; and, vi. She initially said that, after she reported abuse, her guidance counsellor told her to call 911. She later said she did not recall if she was told to call 911. When she was shown the preliminary inquiry transcript, she accepted that evidence that the counsellor did not tell her to contact police. [52] The trial judge concluded however that, “ I find the inconsistencies in [the complainant’s] evidence, as I have already reviewed them to be minor, and thus I accept her testimony.” He held that “upon the evidence, I do accept that the Crown has proven the charges against [the appellant] beyond a reasonable doubt, and therefore he is found guilty on all counts.” Analysis of the trial judge’s reasons for conviction [53] In R. v. R.A. , 2017 ONCA 714, 421 D.L.R. (4th) 100, this court reviewed the principles governing an appeal based on the trial judge’s assessment of credibility and resolution of testimonial inconsistencies. This court held, at para. 46, that “an appellate court should not interfere with a trial judge’s findings of credibility if the core of the complainant’s allegations against an appellant remain largely intact on a review of the entirety of the evidence”. [54] Moreover, in R. v. A.A. , 2015 ONCA 558, 337 O.A.C. 20, at para. 124, this court observed that: Disagreement with the weight assigned does not ascend to the level of palpable and overriding error. Nor does the failure to consider inconsistencies on the periphery compel intervention in the absence of any obligation to consider and respond to each claim no matter how distant from the core issues of this case. [55] In R. v. G.F. , at paras. 81-82, the Supreme Court emphasized the deference owed to a trial judge’s credibility findings, the presumption that trial judges must be taken to know the law especially “settled principles,” and that reasons which are “imperfect” or language which is “ambiguous” does not per se require reversal. [56] The trial judge adverted to the well-known W.(D.) principles. After reviewing the evidence, he found that that the appellant’s testimony was evasive and contained inconsistencies such that he did not believe the appellant, and his evidence raised no reasonable doubt as to his guilt. There was evidence to support his conclusion such that, when read in context, they are sufficient to disclose an intelligible basis for the verdict. [57] While his explanation of how he assessed the complainant’s testimony thereafter was brief, the trial judge, while recounting her evidence in the Oral Reasons, provided some evaluation of its strength. He addressed the two material inconsistencies identified on appeal. Although there were several other inconsistencies in her evidence, he adverted to these inconsistencies in reviewing the evidence and, in my view, his reasons fairly characterized these inconsistencies as minor. [58] Given the considerable deference afforded trial judges when deciding issues of credibility, the fact that the trial judge did assess the material inconsistencies in both the appellant and the complainant’s evidence and provided some reasons for resolving the inconsistencies, when read in context, the Oral Reasons are sufficient to disclose an intelligible basis for the verdict. They reveal no uneven scrutiny of the evidence nor do they demonstrate a misapprehension of the Crown’s burden. DISPOSITION [59] For these reasons I would dismiss the appeal. Released: June 15, 2021 “D.D.” “J.A. Thorburn J.A.” “I agree. Doherty J.A.” “I agree. K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Tataryn v. Axa Insurance Canada, 2021 ONCA 413 DATE: 20210614 DOCKET: C68084 Roberts, Miller and Thorburn JJ.A. BETWEEN Susan Tataryn and Susan G. Tataryn Professional Corporation Plaintiffs (Respondents) and Axa Insurance Canada (now known as Intact Insurance Company of Canada) , Charles McLeod , Irvin Hoffman and Cohen & Lord Insurance Brokers Limited Defendants ( Appellant / Respondents ) Ashlee L. Barber, for the appellant Brian C. Elkin, for the respondents, Susan Tataryn and Susan G. Tataryn Professional Corporation Pasquale Santini, for the respondents, Irvin Hoffman and Cohen & Lord Insurance Brokers Limited Kyle Dow, for the respondent, Charles McLeod, making no submissions Heard: May 27, 2021 by video conference On appeal from the order of Justice Pierre E. Roger of the Superior Court of Justice, dated January 20, 2020, with reasons reported at 2020 ONSC 375. Reasons for Decision [1] The appellant insurer appeals from the summary judgment granted in favour of Susan Tataryn and her professional corporation (the “Tataryn respondents”) and Irvin Hoffman and Cohen & Lord Insurance Brokers Limited (the “respondent brokers”). [2] Ms. Tataryn’s property was insured under a Homeowners Comprehensive policy with the appellant (“the Policy”). Ms. Tataryn purchased an additional Business Interruption Endorsement, as her property was also the place of business for her law practice. [3] Ms. Tataryn commenced renovations to the second and third floor of her property while she lived on the first floor. Following the commencement of these renovations, two incidents of water damage occurred on the property for which Ms. Tataryn sought coverage under the Policy. The appellant made some payments for the first loss, the renovations paused, and Ms. Tataryn moved out of the property. [4] The appellant denied coverage for the loss arising out of the second incident of water damage relying on the following highlighted provisions of the exclusion clause in the Policy: We do not insure loss or damages… [19.] caused by water unless loss or damage resulted from… [(b)] the sudden and accidental escape of water or steam from within a plumbing, heating, sprinkler or air conditioning system or domestic water container, which is located inside your dwelling … but we do not insure loss or damage [viii.] occurring while the building is under construction , vacant, or unoccupied, even if we have given permission. [Emphasis added.] [5] The policy does not provide a definition of what is meant by a building “under construction”. [6] The Tataryn respondents commenced an action against the appellant, the respondent brokers and the respondent adjuster, Charles McLeod, for damages for the losses arising out of the two occurrences of water damage. The Tataryn respondents and the respondent brokers each brought motions for a declaration that the “under construction” exclusion clause did not apply. The motion judge granted the motion: he ordered that the appellant cannot rely on the “under construction” exclusion of the Policy as a defence at trial and dismissed the defence. The motion judge also dismissed the Tataryn respondents’ action and the appellant’s crossclaim against the respondent brokers insofar as they pertain to the “under construction” exclusion. [7] This appeal turns on the motion judge’s interpretation of the terms “under construction” in the Policy as applied to the state of the renovations that Ms. Tataryn was carrying out on her property. [8] The appellant argues that the motion judge erred in his interpretation of these terms because he failed to construe them in the entire context of the Policy and the limited risk covered under a homeowner’s policy of insurance as opposed to the risks covered in a builders’ risk or other construction-oriented insurance policy. The appellant urges this court to provide guidance on the meaning of “under construction”. Moreover, the appellant submits, the motion judge failed to consider the entirety of the evidence and focused too narrowly on the state of renovations following the second loss. [9] Notwithstanding Ms. Barber’s able submissions, we see no error that warrants appellate intervention. The motion judge properly instructed himself on the applicable rules of contractual interpretation, including that he was required to “give effect to the clear language of the policy, reading it as a whole”. He considered the plain meaning of the term “under construction”, which he found to be unambiguous, and applied it to the entirety of the evidence of the state of the renovations to Ms. Tataryn’s property. There was extensive evidence before the court, including from the parties’ discoveries, affidavits, and cross-examinations. The motion judge concluded, correctly in our view, that the finding as to whether a property is “under construction” is a question of fact and that in this case, “the extent of the renovations [is] not sufficient to support a finding that the house was ‘under construction’”. As the motion judge noted, the fact that a house is being renovated does not necessarily mean that it is “under construction”: Wilson v. INA Insurance Co. of Canada (1993), 80 B.C.L.R. (2d) 361 (C.A.), at para. 16. Indeed, whether a property is “under construction” or merely under renovation is a question of degree and a question of fact. The motion judge’s determination that Ms. Tataryn’s property was not “under construction” was open to him on this record. [10] We decline the appellant’s invitation to furnish a definition of “under construction” that the appellant could have included in its standard form contract. We note that the appellant renewed the Policy after the first loss without introducing such a definition. Given the acknowledged fact-specific inquiry entailed in the determination of “under construction”, it is not possible nor desirable for us to give a definition that would apply to all cases: Dodge v. York Fire Insurance Co. , 1911 CarswellOnt 41 (C.A.), at para. 12. As the motion judge observed, exclusion clauses in insurance policies are construed narrowly and the insurer bears the burden of proving the exclusion clause applies to limit coverage: Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada , 2010 SCC 33, [2010] 2 S.C.R. 245, at para. 24. It is not this court’s function to rewrite the parties’ agreement, especially those terms that the motion judge found, and the parties agree, are unambiguous. [11] For these reasons, we dismiss the appeal. [12] In accordance with the parties’ agreement, the Tataryn respondents and the respondent brokers are each entitled to their partial indemnity costs in the amount of $7,500, plus their respective disbursements and applicable tax. Since Mr. Dow attended on a watching brief for Mr. McLeod, filed no materials and made no submissions, he sought no costs, and none are granted. “L.B. Roberts J.A.” “B.W. Miller J.A.” “ J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Jama, 2021 ONCA 415 DATE: 20210614 DOCKET: C63739 Hoy, Benotto and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Libin Jama Appellant Libin Jama in person Ingrid Grant, as duty counsel Hannah Freeman, for the respondent Heard: June 9, 2021 by video conference On appeal from the sentence imposed on April 20, 2017 by Justice Gary Trotter of the Superior Court of Justice. REASONS FOR DECISION [1] Ms. Jama appeals the parole ineligibility portion of the life sentence that she received on her conviction for second degree murder. The sentencing judge set the parole ineligibility period at 12 years. [2] The appellant was one of three persons who was found guilty of murdering the victim as the result of a dispute. The victim was beaten, kicked and stabbed. The victim was 57 years old. His assailants, including the appellant, were all in their twenties. [3] Many of the appellant’s submissions relate to the finding of guilt. We note that her appeal of the murder conviction was earlier dismissed by this court. [4] The appellant also refers to the fact that five jurors recommended that parole ineligibility be set at 10 years, whereas four others recommended longer periods. The recommendations of the jurors are just that, recommendations. They are not binding on the sentencing judge. The sentencing judge considered the jurors’ recommendations but had to make his own determination of the appropriate period of parole ineligibility. [5] The sentencing judge considered all of the factors enumerated in s. 754.4 of the Criminal Code and the relevant aggravating and mitigating factors. He concluded that the violent nature of the attack, and the age differential between the assailants and the victim, warranted an increase in the parole ineligibility period. [6] The appellant has failed to demonstrate any error in principle in the sentencing judge’s decision. There is no error of law, nor failure to consider a relevant factor, nor erroneous consideration of the aggravating or mitigating factors. Consequently, there is no basis for this court to interfere with the sentence imposed: R. v. Friesen , 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 26. [7] Leave to appeal sentence is granted but, while we commend the steps that the appellant has taken since her incarceration to improve her life, the appeal must be dismissed. “Alexandra Hoy J.A.” “M.L. Benotto J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Iqbal, 2021 ONCA 416 DATE: 20210614 DOCKET: C66276 Fairburn A.C.J.O., Doherty and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Muhammad Iqbal Appellant Carlos Rippell and Marianne Salih, for the appellant Emily Marrocco, for the respondent Heard: April 16, 2021 by video conference On appeal from the convictions entered by Justice Beth A. Allen of the Superior Court of Justice on October 11, 2018, with reasons reported at 2018 ONSC 6033, and from the sentence imposed on December 19, 2018, with reasons reported at 2018 ONSC 7593. Sossin J.A.: OVERVIEW [1] On October 11, 2018, following a trial by judge alone, the appellant was convicted of: (1) assault with a weapon, contrary to s. 267(a) of the Criminal Code , R.S.C. 1985, c. C-46; (2) possession of a weapon, contrary to s. 88(1) of the Criminal Code ; (3) break and enter, contrary to s. 348(1)(b) of the Criminal Code ; and (4) theft under $5,000, contrary to s. 334(b) of the Criminal Code . On December 19, 2018 the appellant received a global sentence of four years’ imprisonment on all counts. [2] The events giving rise to the convictions took place in the early morning hours of October 26, 2015. The complainant alleged that a male stranger entered her apartment as she slept and threatened her with a knife. [3] Identity was the primary issue at trial. The complainant made an in-dock identification of the appellant as the intruder. The appellant, who also lived in the building, was the only individual depicted in video surveillance footage of areas near the complainant’s apartment around the time of the incident. [4] The appellant testified in his own defence and denied he was the intruder. To account for his appearance in surveillance footage at the relevant time, he testified that he had left his apartment and gone downstairs to his vehicle to retrieve his cell phone. [5] The trial judge found the appellant guilty on all counts. She was satisfied beyond a reasonable doubt that the complainant had correctly identified the appellant as the intruder. In reaching this conclusion, the trial judge rejected the appellant’s evidence and found that he had attempted to mislead the court by “fabricating” or “concocting” a false explanation for his whereabouts around the time of the incident. [6] The appellant appeals from his convictions and sentence. With respect to his convictions, he contends the trial judge made five errors warranting appellate intervention: (1) failing to address weaknesses in the complainant’s identification evidence; (2) relying on the complainant’s in-court identification of the appellant; (3) mischaracterizing the appellant’s defence as one of alibi; (4) finding the appellant’s evidence was fabricated or concocted absent a proper evidentiary basis; and (5) misapprehending the surveillance video evidence. [7] For reasons that follow, I would allow the conviction appeal on the fabrication ground but find no errors in relation to the remaining grounds. I would therefore set aside the convictions and order a new trial on all charges. [8] In view of my conclusion on the conviction appeal, I need not address the sentence appeal. MATERIAL FACTS The incident [9] The complainant lived on the first floor of an apartment building at 43 Thorncliffe Park Drive in Toronto. In the early morning of October 26, 2015, the complainant was asleep in her bed with her young son and daughter. The complainant was awakened when she was shaken on the shoulder by a male stranger standing beside her bed. [10] When she saw the intruder standing by her bed, the complainant began to scream. She said the intruder tried to make her stop screaming. He put his index finger to his lips and made the sound, "sh-sh-sh". When this failed to silence her, the complainant said the intruder got close to her face, took out a knife, and put it to his lips. He then pointed the knife towards her chin. The complainant continued screaming “madly”. The intruder left the room and fled the apartment. [11] Once the intruder was gone, the complainant left her bedroom and saw that the front door to her apartment, which she had closed and locked before bed, was ajar. She then called 9-1-1. Officers arrived and spoke with the complainant. When speaking with the officers, the complainant noticed that her sliding patio door at the rear of her apartment was also open, despite having closed it before going to bed. [12] Police subsequently discovered that the knife the intruder had used belonged to the complainant. The complainant told police that she had left a knife with a purple handle on the dining room table before going to bed, but officers could not locate it anywhere on the premises. The complainant’s attempts to identify the intruder for police [13] The complainant gave a statement to police shortly after the incident. In her statement she described the intruder as a brown male in his late 30s, approximately five feet six inches tall with short dark hair, thin build, and big eyes. She said he was wearing a leather jacket and a scarf around his neck during the incident. [14] In the course of their investigation, police reviewed the building’s CCTV video footage from around the time of the incident. That footage showed a man entering the building’s main lobby from the direction of the complainant’s first-floor apartment. The building’s security supervisor confirmed for police that the man depicted was the appellant, who lived in an apartment on the 21 st floor of the building. [15] Police subsequently showed a photo lineup to the complainant which included a photo of the appellant. The photo of the appellant had been taken years earlier and showed him with a full head of black hair. The complainant did not pick the appellant’s photo out of the lineup. Nevertheless, police arrested the appellant nine days after the incident. PROCEEDINGS AT TRIAL The complainant’s evidence relating to identification [16] At trial, the complainant made an in-dock identification of the appellant as the intruder she saw in her bedroom. She also testified about the intruder’s appearance at the time of the incident. [17] During cross-examination, the appellant’s trial counsel confronted the complainant with several alleged inconsistencies regarding her identification evidence, including: · The complainant testified that the intruder was wearing a scarf during the incident. When confronted with still photos from surveillance footage of the appellant around the time of the incident, the complainant agreed he was not wearing a scarf. · The complainant told police and testified at the preliminary inquiry that the intruder had a moustache. When confronted with still photos from surveillance footage of the appellant around the time of the incident, the complainant agreed he did not appear to have a moustache. · The complainant indicated to police that the intruder was in his late 30s or early 40s. The appellant was 28 years old at the time of the incident. The complainant agreed with defence counsel that there was a “fairly big” difference between ages 28 and 40. · After first telling police that the intruder had short dark hair, the complainant later described the intruder’s hair colour as mostly grey. Surveillance footage from the day of the incident showed that the appellant was balding with black hair on the sides of his head. The surveillance video evidence [18] Apart from the complainant’s direct eyewitness identification, the Crown’s case against the appellant was circumstantial. The Crown theorized that the appellant had entered the complainant’s apartment through the patio door at the rear of the premises and fled through the front door. That theory rested primarily on circumstantial evidence relating to the appellant’s whereabouts around the time of the incident. [19] Specifically, at trial the Crown adduced a seven-minute compilation of time stamped video surveillance footage from various locations throughout the building around the time of the incident (the “surveillance video”). The police officer responsible for compiling the footage testified about the surveillance video and pointed out important time stamps. [20] The complainant’s 9-1-1 call was placed at approximately 3:21 a.m. She estimated that the intruder had woken her up at 3:16 a.m. and that three to five minutes had elapsed between the time the intruder left the bedroom and when she had gotten out of bed and called 9-1-1. [21] Around these critical times, the appellant was the only person depicted on the surveillance video near the complainant’s apartment. According to the surveillance video, at 2:50:18 a.m. the appellant was near the rear exit door of the building using a handheld mobile device. At 2:50:45 a.m., he opened the rear door, wedged a stick in the door to prop it open, and exited the building. At 3:21:48 a.m., the appellant was pictured entering the lobby from the hallway where the complainant’s apartment was located. He eventually took the elevator back up to his floor. The appellant’s evidence regarding his whereabouts during the incident [22] The appellant lived on the 21 st floor of 43 Thorncliffe. He worked as a taxi driver. [23] The appellant identified himself on the surveillance video, conceding that he was the man seen leaving the hallway leading from the complainant’s apartment around the time the intruder fled and the 9-1-1 call was made. [24] However, the appellant denied he was the intruder. He explained his appearance on the surveillance video at the relevant times by stating he had returned to his taxi in order to retrieve his cell phone, which he had inadvertently left behind after his shift. He explained that he had decided to use the rear door to exit the building, which he knew could be propped open, when he realized he did not have his key fob to get back in. [25] The appellant stated that the mobile device he is holding in the surveillance video was an iPad Mini 2, not a cell phone. He testified that he was likely playing a game on the iPad as he walked. [26] The appellant further testified that when he retrieved his cell phone from the taxi, he noticed he had a missed phone call from his girlfriend. He said he remained in the taxi to wait for potential taxi calls. While sitting in his taxi, the appellant said he called his girlfriend back, a phone call he estimated had lasted approximately 25 minutes. [1] [27] The appellant’s evidence was that he used a different route to return to his apartment than the one he had taken when going out to his taxi. This alleged route was not captured in the surveillance video as there was no security camera coverage along that route. The appellant said he took the alternate route because it was cold and he believed the stick he had used to prop open the rear exit door might have been cleared, so he decided to enter the building through a different door closer to where his taxi was parked. [28] On the appellant’s evidence, his eventual re-entry through this alternate route coincided with his appearance on the surveillance video near the complainant’s apartment shortly after the estimated time of the incident. [29] In cross-examination, the trial Crown challenged several aspects of the appellant’s evidence. Notably, based on the apparent size of the device in the appellant’s hands on the surveillance video, the trial Crown suggested that he was carrying a cell phone, not an iPad, and that he did not in fact go to his taxi. The appellant disagreed. The trial judge’s key findings [30] The trial judge accepted the complainant’s eyewitness identification of the appellant as the man she saw in the apartment pointing a knife at her. She found the complainant “credible”, notwithstanding her failure to identify the appellant in the photo lineup: at para. 234. [31] In her reasons for judgment, the trial judge referred to the appellant’s evidence as to his whereabouts around the time of the incident as his “alibi defence”. She referred to his evidence about the return route he had allegedly taken through the building as the “alibi route”. [32] In support of the complainant’s identification of the appellant, the trial judge found that the Crown had disproved the appellant’s alibi defence by “challenging as unreasonable” the inference that the appellant had been elsewhere when the incident occurred. Relying in part on the surveillance video, she found the appellant’s alibi defence “implausible” and his credibility “lacking”. She specifically rejected the appellant’s contention that the video showed him holding an iPad, concluding that she believed he was carrying a cell phone. The trial judge therefore found that the appellant had “concocted” the 25-minute stay in his taxi to “mislead the court” as to his whereabouts at the time of the incident. [33] The trial judge also rejected the remaining aspects of the appellant’s defence, which were premised on the theory that the incident had never occurred. First, the appellant alleged that the complainant had made up the incident as an excuse to visit her husband, who had recently moved to Edmonton for work. The trial judge determined that this was not sensible. In the alternative, the appellant suggested that the complainant had simply dreamt the incident. The trial judge found no air of reality to this suggestion. [34] In light of the foregoing, the trial judge stated that “the only reasonable conclusion” to be drawn from the totality of the evidence was that the appellant was “in the [complainant’s] apartment … when the crime was being committed”. The trial judge found nothing to raise a reasonable doubt as to the appellant’s guilt of breaking into and entering the complainant’s apartment, assaulting her by threatening her with the knife taken from the dining room table, and then stealing the knife. [35] Accordingly, the trial judge convicted the appellant on all four counts. I SSUES ON APPEAL [36] The appellant advances five grounds of appeal with respect to his convictions. Given the overlap between two of those grounds, which both relate to identification, the issues before me can be stated and approached conveniently as follows: 1) The trial judge erred by relying on the complainant’s in-dock identification of the appellant without properly considering material inconsistencies in the complainant’s evidence on identification; 2) The trial judge erred by finding the appellant had concocted or fabricated his evidence about his whereabouts around the time of the incident without independent evidence of fabrication; 3) The trial judge erred by characterizing the appellant’s defence as one of “alibi” and drawing an adverse inference from the appellant’s failure to give the Crown advance notice of that alibi defence; and 4) The trial judge misapprehended the surveillance video evidence. [37] I will consider each of these grounds of appeal in turn. (1) The Trial Judge Did Not Err Regarding the Identification Evidence [38] This prosecution turned on the identification of the intruder. Despite acknowledging alleged inconsistencies in the complainant’s evidence, the trial judge accepted her identification of the appellant. The appellant contends that in doing so, the trial judge erred by (a) failing to adequately resolve material contradictions in the complainant’s evidence on identification, and (b) erroneously relying on the complainant’s in-dock identification as “important direct evidence” of the appellant’s guilt. [39] As I will explain, I would not give effect to either submission. (a) The trial judge properly considered the impugned inconsistencies [40] In her analysis of the identification issue, the trial judge summarized the alleged inconsistencies in the complainant’s identification evidence, several of which I canvassed above. At paras. 197-98, the trial judge explained why these inconsistencies did not, in her view, undermine the complainant’s identification of the appellant as the intruder: In assessing the identification evidence, the context in which [the complainant] formed a description of the intruder must be considered. I also have regard to the time lapse between the crime and the descriptions she gave in the years afterwards. [The complainant] described her experience as very frightening. The incident happened quickly and within minutes the intruder ran out of the room. [The complainant] testified there was sufficient light in the bedroom coming from the lights in the hallway and the adjacent bathroom. She said there was sufficient light to see what the intruder looked like. He stood close to her face. It is understandable why [the complainant] might not be able to recount the finer details of his description given the speed with which the incident occurred and her shock and fear at an intruder being in her bedroom in the middle of the night with a knife trained on her while she lay in bed with her children. [41] Further, the trial judge found, at para. 199, that the complainant’s initial description of the intruder to police met the “general description” of the appellant. She noted that this was the description “closest in time to the incident”. [42] According to the trial judge, at para. 200, the alleged inconsistencies in the complainant’s identification evidence at trial could be explained by the “exigencies of her experience and the passage of time.” She held that inconsistencies in a witness’ testimony on minor matters or matters of detail are not unexpected, and witnesses are not held to a standard of absolute recall. These inconsistencies, which the trial judge described as “minor,” did not have an impact on her assessment of the complainant’s credibility: at paras. 201-202. [43] In my view, the trial judge properly considered the contradictions in the complainant’s evidence. It was open to her to find that, in the circumstances, these contradictions did not undermine the credibility of the complainant with respect to identification. (b) The trial judge properly discounted the in-dock identification [44] Moreover, the trial judge explicitly discounted the complainant’s in-dock identification of the appellant and addressed the complainant’s failure to identify the appellant in the photo lineup: I find the fact that [the complainant] did not identify [the appellant] on the photo lineup is of little consequence since the photo of [the appellant] was taken years earlier when [the appellant] had a full head of black hair. Equally, her in-dock identification of [the appellant] as the intruder is of minimal consequence on its own since it is well-known that in-dock identification is notoriously unreliable and should be given limited weight … In-dock evidence is “deceptively credible, largely because it is honest and sincere” … I do not accept [the complainant’s] in-dock identification alone as evidence pointing to guilt. [Citations omitted.] [45] Contrary to the appellant’s submission, in my view this passage shows that the trial judge put little weight on the in-dock identification. Rather, she considered the in-dock identification as just one aspect of the totality of evidence before her relevant to the identification issue. [46] Accordingly, I find the trial judge committed no error in reaching her conclusions on identification stemming from the complainant’s evidence. She was entitled to accept that evidence as credible and to find that, despite inconsistencies on “matters of detail”, the complainant had reliably identified the appellant as the intruder. [47] However, the challenges with the identification evidence put added significance on the other evidence in the case and how it was treated by the trial judge. Indeed, the trial judge asserted, at para. 192, that her conclusion on the identification issue worked “in conjunction with the circumstantial evidence of [the appellant’s] whereabouts at the time the crime was committed.” At para. 203, she noted that “any deficiency or doubt that might linger” with respect to identity would be “tempered” if a “material link” could be established between the intruder and the male seen in the surveillance video walking near the complainant’s apartment shortly after the 9-1-1 call. At para. 234, the trial judge found that this link had been established, stating that the complainant’s identification evidence was “bolstered” by the Crown’s “ability to disprove” the appellant’s testimony regarding his whereabouts when the incident occurred. [48] It is clear from these passages that the trial judge’s treatment of the appellant’s evidence as to his whereabouts was crucial to the outcome of this trial. As such, I will next turn to the alleged error made by the trial judge in considering that evidence. (2) The Trial Judge Erred in Drawing an Inference of Guilt from Disbelief The issue stated [49] The appellant submits that the trial judge erred by “jumping” from disbelief of the appellant’s evidence to a finding that he deliberately fabricated his evidence. He contends that the trial judge failed to apply the legal principles governing fabricated exculpatory statements. [50] Specifically, the appellant argues that the trial judge required independent evidence of fabrication, apart from her disbelief of his alibi defence, to support her conclusion that his evidence was fabricated. The appellant says there was no such evidence. He contends the trial judge conflated disbelief and concoction by erroneously relying on inconsistencies between the appellant’s testimony and the surveillance video as proof that his evidence was not just false, but also concocted to avoid culpability. [51] I would allow the appeal on this ground. Before explaining the trial judge’s error in more detail, it is helpful to review the applicable legal principles. The governing principles [52] It is well-established that a trier of fact cannot use their rejection of an accused’s testimony as a piece of circumstantial evidence to convict in the absence of independent evidence that the testimony was deliberately fabricated or concocted to avoid culpability: R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), leave to appeal refused, [1998] S.C.C.A. No. 450; R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.); S. Casey Hill, David M. Tanovich and Louis P. Strezos , McWilliams’ Canadian Criminal Evidence , 5th ed. (Toronto: Thomson Reuters, 2019), at ch. 30-34. [53] In Coutts , at p. 203, Doherty J.A. explained the rationale underlying this rule: If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused's guilt beyond a reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events. [54] In criminal trials, the distinction identified in Coutts between an exculpatory statement that is disbelieved, and one that is determined to have been fabricated or concocted to avoid culpability, is of critical importance. This is because a statement that is merely disbelieved is not evidence that strengthens the Crown’s case, while a statement that has been deliberately concocted is “capable of supporting an inference of guilt”: O’Connor , at para. 17. Distinguishing between disbelief and fabrication is thus essential to ensure triers of fact properly apply the burden of proof in cases where an accused testifies: Coutts , at p. 203. [55] Requiring independent evidence of fabrication helps to maintain this key distinction. The kind of evidence that may be considered “independent” in a particular case will depend in part on where the exculpatory statement at issue originated: O’Connor , at paras. 22-23. Unlike with out-of-court exculpatory statements, the circumstances surrounding an accused’s in-court testimony, such as logical implausibility or internal inconsistencies arising from that testimony, cannot constitute independent evidence of fabrication: O’Connor , at paras. 23-25; R. v. Wright , 2017 ONCA 560, 354 C.C.C. (3d) 377 , at para. 48. [56] In other words, it is impermissible for a trier of fact who disbelieves an accused’s in-court testimony to make a finding of fabrication absent evidence that is independent of both (1) the evidence contradicting the accused’s testimony, and (2) the fact that the accused is found to have testified falsely at trial: O’Connor , at para. 23; Wright , at paras. 46-48. For example, with respect to in-court exculpatory testimony, independent evidence of fabrication may arise from another witness’ testimony indicating that the accused attempted to persuade them to lie in court about the accused’s whereabouts at the time of the offence: R. v. Hall , 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 165, leave to appeal refused, [2010] S.C.C.A. No. 499. [57] The principles articulated in Coutts and O’Connor regarding the distinction between disbelief and fabrication and the requirement for independent evidence of fabrication have been repeatedly affirmed and applied in Ontario and adopted by other Canadian appellate courts: R. v. Hibbert , 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 57; R. v. Bradey , 2015 ONCA 738, 127 O.R. (3d) 721, at paras. 167-174; R. v. Shafia , 2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 285-288, leave to appeal refused, [2017] S.C.C.A. No. 17; R. v. Laliberté , 2016 SCC 17, [2016] 1 S.C.R. 270, at para. 4; R. v. Oland , 2016 NBCA 58, [2016] N.B.J. No. 288, at paras. 64-72, leave to appeal refused, [2016] S.C.C.A. No. 188; Wright , at paras. 38-45; R. v. Al-Enzi , 2021 ONCA 81, at paras. 38-46. [58] When asked to review a trial judge’s use of disbelieved evidence arising from in-court testimony, this line of jurisprudence indicates that appellate courts should conduct four interrelated inquiries: a) Did the trial judge disbelieve the appellant’s testimony? b) If so, did the trial judge also find that the appellant fabricated their testimony? c) If the trial judge found the appellant’s testimony was fabricated, was there independent evidence of fabrication capable of supporting that finding? d) If not, did the trial judge, despite the absence of independent evidence of fabrication, erroneously rely on the finding of fabrication as circumstantial evidence of guilt? [59] As I explain below, in light of these inquiries, I conclude that the trial judge fell into error by drawing an inference of guilt based on her finding that the appellant’s evidence was fabricated, a finding which was unsupported by independent evidence of fabrication. (a) The trial judge disbelieved the appellant’s evidence [60] The trial judge clearly did not believe the appellant’s testimony as to his whereabouts at the relevant time, which she called the “25-minute alibi”. She concluded, at para. 208, that the surveillance video showed the appellant “carrying a cell phone” before exiting the building, not an iPad Mini. This led her to reject the appellant’s explanation for his appearance on the surveillance video, which was that he had gone to his vehicle to retrieve his cell phone. [61] The trial judge further found, at para. 223, that the appellant’s evidence about the “alibi route” from his taxi back through the building and out of reach of the surveillance cameras “simply does not have the ring of truth”. [62] To be clear, as the appellant fairly concedes, it was open to the trial judge to disbelieve this evidence on the record before her. Indeed, the Crown’s cross-examination of the appellant highlighted several implausible aspects of his account. [63] However, the trial judge went beyond mere disbelief of the appellant’s testimony; she made an express finding of fabrication. (b) The trial judge found that the appellant fabricated his evidence [64] Immediately after finding that the surveillance video showed the appellant carrying a cell phone, rather than an iPad, the trial judge reasoned as follows, at paras. 209-211: Then the question is, why would [the appellant] not be truthful about what he had in his hands as he left through the rear door? The cell phone takes on a pivotal role in [the appellant’s] alibi. To retrieve his cell phone is the reason he left the building through the rear door; it is his reason for remaining in the taxi after he retrieved messages from his girlfriend and speaking to her for 25 minutes while he says he was waiting for taxi calls; it is the reason he took the circuitous route [back from his taxi], so he could get reception to retrieve voice mail and email messages about taxi customers. The cell phone provides the reason that he was not the intruder that invaded [the complainant’s] home. So if he was not going to his taxi to retrieve his cell phone because he already had his cell phone that raises the question of where he was going and what he did after he left the building at 2:50:45 a.m. I am entitled to draw an adverse inference in relation to the 25-minute alibi and I do draw the adverse inference that at trial [the appellant] concocted the 25-minute stay in his taxi. One thing that becomes clear on all the evidence is that [the appellant] was not telling the truth about going to his taxi to retrieve his cell phone . [Emphasis added.] [65] Elsewhere in her reasons, at para. 224, the trial judge stated that she believed the appellant “concocted a rather elaborate account of his whereabouts” at the critical time. At para. 232, she also referred to the appellant’s “fabrications related to his cell phone and the concocted story” about how he came to be in the hallway near the complainant’s apartment “at the same time the intruder fled”. [66] In my view, these passages show that the trial judge not only disbelieved the appellant’s account but found that he deliberately fabricated his evidence. [67] The authorities are clear that such a finding is impermissible absent independent evidence of fabrication. I will now assess whether any such evidence was before the trial judge in this case. (c) The trial judge did not identify any independent evidence of fabrication and there was none before her [68] In her reasons, the trial judge did not advert to the governing case law with respect to fabrication or explicitly refer to any independent evidence grounding her finding that the appellant had fabricated or concocted his evidence. [69] Where a trial judge fails to advert to independent evidence of fabrication, the jurisprudence indicates that an appellate court may assess whether the record reveals sufficient such evidence to show that the trial judge’s omission did not prejudice the appellant: Wright , at paras. 48-50; R. v. Polimac , 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 106, leave to appeal refused, [2010] S.C.C.A. No. 263; R. v. Selvanayagam , 2011 ONCA 602, 281 C.C.C. (3d) 3, at paras. 31-33. [70] On the record before the trial judge, I find no independent evidence of fabrication that could support an inference of fabrication. [71] Crucially, this appeal involves in-court exculpatory testimony, as opposed to out-of-court exculpatory statements. As noted above, this limits the scope of independent evidence which could have properly grounded a finding of fabrication. Namely, circumstantial evidence suggesting the falsity of the appellant’s in-court statements could not also constitute independent evidence that those statements were fabricated. [72] However, this is precisely the type of evidence relied upon by the trial judge to support her finding of fabrication. No other witness provided evidence to contradict or challenge the appellant’s evidence as to his whereabouts at the time in question. Instead, the trial judge found the appellant’s evidence strained “credulity” based on several internal inconsistencies and logical improbabilities. She also relied on her assessment of the appellant’s demeanour as a witness to support her view that he had deliberately misled the court. [73] In accordance with O’Connor , these considerations cannot be properly characterized as evidence independent of the appellant’s testimony nor of the trial judge’s finding that his testimony was false. The surveillance video was not independent evidence of fabrication [74] The trial judge also relied on inconsistencies between the appellant’s testimony and the surveillance video to conclude that the appellant had fabricated his evidence. The Crown argues that, if independent evidence of fabrication was required in this case, the surveillance video constituted sufficient such evidence to ground the trial judge’s adverse finding of fabrication against the appellant. [75] I do not agree. The surveillance video evidence was not independent of the appellant’s exculpatory testimony. The probative value of the surveillance video, according to the trial judge, was to show that the appellant “was not telling the truth” in his evidence about his whereabouts around the time of the incident. In other words, as in Wright , the evidence the Crown alleges to be “independent” evidence of fabrication is the very same evidence the trial judge relied upon in disbelieving the appellant’s testimony. [76] Accordingly, even if the trial judge had expressly relied on the surveillance video as independent evidence of fabrication, such reliance would have been in error. Simply put, it was not open to the trial judge to rely on the surveillance video as the basis on which to both disbelieve the appellant’s evidence and to make a finding of fabrication or concoction against him. (d) Despite the absence of independent evidence of fabrication, the trial judge erroneously relied on her finding of fabrication as circumstantial evidence of guilt [77] Having identified an erroneous finding of fabrication against the appellant, the only remaining question is: how did the trial judge use that finding? [78] The trial judge’s reasons indicate that she relied on her finding of fabrication to infer consciousness of guilt on behalf of the appellant. Specifically, at para. 211, the trial judge drew the “adverse inference” against the appellant that he had “concocted” his alibi defence at trial. This inference led the trial judge to conclude the appellant was “hiding something” and had attempted to “mislead the court” as to his whereabouts at the time of the incident. [79] These passages indicate that the trial judge not only rejected the appellant’s story as false, thus undermining his credibility, but that she then relied on her disbelief of the appellant’s evidence to infer that he must have deliberately fabricated that evidence to avoid culpability for the incident in the complainant’s apartment. [80] In my view, in light of the problems with the complainant’s identification evidence, this reasoning contributed to the trial judge’s decision to convict. (e) Conclusion on the fabrication ground [81] I would find that the trial judge drew an inference of guilt against the appellant based on a finding of fabrication. I see no independent evidence on the record before the trial judge that could have grounded such a finding. [82] Therefore, I would find that the trial judge’s inference of fabrication was in error. This erroneous reasoning was integral to the appellant’s conviction, particularly given the limitations in the complainant’s evidence on identification and the interdependence acknowledged by the trial judge between the identity issue and the appellant’s evidence as to his whereabouts. This interdependence reinforces my view that the trial judge’s improper finding of fabrication played a material role in her conclusion that the appellant was guilty. [83] Accordingly, I would find that the appellant succeeds on this ground of appeal. (3) The Trial Judge’s Reference to Alibi Was Not a Reversible Error [84] The appellant claims that the trial judge erred in referring to his evidence relating to his activities at the time of the attack as an “alibi”. The appellant argues that this evidence was not an alibi as it was not dispositive of his having committed the offence. He says the so-called “alibi” evidence, including regarding the phone call in the taxi, merely explained his movements that evening. Therefore, the appellant submits that the trial judge erred by characterizing this evidence as alibi and consequently drawing an adverse inference against him for failing to disclose it to the Crown in advance of trial. [85] In rejecting the so-called “alibi defence”, the trial judge concluded as follows, at para. 204: I do not accept [the appellant’s] alibi defence. I arrive at this conclusion from the accumulated effect of problems I have with the credibility and plausibility of [the appellant’s] account of how he found himself walking down the north hallway at 3:21:48 a.m. on October 26th. No singular problem with his evidence on its own leads me to my conclusion . [Emphasis added.] [86] While not determinative to the outcome of this appeal, I have reservations about whether the appellant’s evidence was properly characterized as alibi. A true alibi “places an accused elsewhere and does not implicate the accused in any way in the crime with which he or she is charged”: R. v. Wright , 2009 ONCA 623, 98 O.R. (3d) 665, at para. 24. The appellant’s explanation of his whereabouts did not place him elsewhere – it placed him right outside the complainant’s apartment around the time of the incident, albeit for an allegedly innocent reason. By characterizing this as an “alibi defence”, the trial judge improperly opened the door to consideration of the timeliness of its disclosure, resulting in clear implications for the appellant’s right to silence. [87] Given these concerns, in my view it would have been preferable for the trial judge to have avoided considering the timeliness of the disclosure in this case. [88] Nevertheless, I would find no reversible error with respect to the trial judge’s characterization of this evidence. The trial judge appropriately linked her rejection of what she called the “alibi defence” to her well-supported findings on the appellant’s credibility. In my view, it was open to the trial judge to reject the appellant’s evidence. [89] Indeed, the late disclosure of the so-called alibi was not the sole – nor even the primary – basis on which the trial judge rejected the appellant’s account. Rather, she rejected his evidence based on the “accumulated effect” of her overall assessment of the appellant’s credibility and the implausibility of his story. It is clear from the trial judge’s reasons that, however framed, she did not believe the appellant and his evidence did not leave her with a reasonable doubt as to his guilt. [90] Accordingly, I am not persuaded that the trial judge’s characterization of the so-called “alibi” evidence warrants appellate intervention. (4) The Trial Judge Did Not Misapprehend the Surveillance Evidence [91] The appellant raises the trial judge’s alleged misapprehension of the surveillance video evidence as a further ground of appeal. The time stamps from the various video surveillance cameras in the building were not aligned, such that some of the footage in the surveillance video adduced at trial showed inaccurate times. [92] Despite the trial judge acknowledging, at para. 133, that the time stamps on certain cameras were “not entirely in sync”, the appellant contends the trial judge erroneously treated the surveillance video times as established evidence. The appellant takes particular issue with the trial judge’s conclusion, at para. 227, that the appellant’s appearance in the surveillance video time stamped at 3:21 a.m. showed that he was present in the hallway near the complainant’s apartment “immediately after the incident”. [93] I would not give effect to this submission. [94] There was evidence before the trial judge that the time stamps were “fairly accurate”. Moreover, the relevant times were not contradicted by the evidence of the appellant. In fact, the times estimated by the appellant were generally consistent with the surveillance video time stamps and with the time the complainant made the 9-1-1 call. Indeed, as the Crown points out, at trial all parties were aware that the surveillance video time stamps were not exact. At most, the defence suggested that some of the cameras may have been off by around two and a half minutes. Yet no one suggested that such a timing discrepancy, on its own, could have given rise to a reasonable doubt as to the appellant’s guilt. [95] Accordingly, I am not persuaded that the trial judge erred in her treatment of the surveillance video. In my view, the trial judge’s conclusions with respect to the surveillance video were well within her discretion as the trier of fact. CONCLUSION [96] For reasons above, I would allow the appeal on the fabrication issue, set aside the convictions, and order a new trial on all charges. [97] In view of my conclusion on the conviction appeal, I do not reach the sentence appeal. Released: June 14, 2021 “J.M.F.” “Sossin J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Doherty J.A.” [1] While an adjournment was granted to permit the Crown an opportunity to obtain the appellant’s phone records, they were unavailable due to the passage of time.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Owusu, 2021 ONCA 417 DATE: 20210614 DOCKET: C63079 Simmons, Gillese and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Folorunsu Owusu Appellant Mark Halfyard and Chris Rudnicki, for the appellant Craig Harper, for the respondent Heard: May 26, 2021 by video conference On appeal from the sentence imposed on December 7, 2016 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, with reasons reported at 2016 ONSC 7654. REASONS FOR DECISION [1] The appellant was convicted of two counts of second degree murder, one count of attempted murder, one count of aggravated assault, and one count of reckless discharge of a firearm. The offences arose from a mass shooting in Toronto on July 16, 2012, that began when he opened fire at a party. [2] The appellant had decided to attend the party despite his knowledge that he was not welcome. He brought a loaded firearm. [3] The appellant was ordered to leave the party by a man named Gifted, one of the party organizers. Gifted drew his own firearm, but was persuaded to put it away because he was told there were children around. When he did, the appellant pulled his gun and began shooting. Two of his shots hit Gifted, who returned fire. An unknown man associated with Gifted then produced a submachine gun and opened fire. [4] Two people were killed and more than twenty were injured, including a twenty-two-month-old child. It was the worst mass shooting in Toronto’s history. The appellant, who was 17 years old at the time, did not fire the shots that resulted in the deaths, but was convicted of murder under s. 229(c) of the Criminal Code , R.S.C., 1985, c. C-46, because he initiated the gunfire and knew that it would likely cause death. [5] The appellant seeks leave to appeal from the decision of the sentencing judge granting the Crown’s application to impose an adult sentence on him. The appellant’s primary argument is that the sentencing judge erred in imposing an adult sentence because he misunderstood the Intensive Rehabilitative Custody and Supervision (IRCS) program and, as a result, concluded that it would not be effective in his circumstances. The appellant argues, further, that the sentencing judge failed to consider the collateral immigration consequences of an adult sentence. The appellant brings a fresh evidence application for this court’s use in the event this court finds an error affecting sentence and must sentence him anew. [6] For the reasons that follow, the fresh evidence application is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed. The sentencing judge’s decision [7] The appellant was sentenced in accordance with s. 72(1) of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ YCJA ”), as it existed at the time of the offences. As this court explained in R. v. M.W. , 2017 ONCA 22, 134 O.R. (3d) 1, at para. 23, nothing turns on this: under the version of s. 72(1) then in force, the Crown was required to satisfy the court that the presumption of diminished moral blameworthiness had been rebutted and that a youth sentence would not be of a sufficient length to hold the young person accountable, just as under the current version. [8] The sentencing judge was required to consider three factors set out under s. 72(1): the seriousness and circumstances of the offence; the age, maturity, character, background and previous record of the young person; and, any other factors that the court considered relevant. [9] Concerning the seriousness and circumstances of the offence, the sentencing judge found that the appellant started the gunfight. He attended a party in an area of Scarborough where he knew he might not be welcome and took a handgun with him for that reason. He decided to produce his handgun when he was ordered to leave the party and to fire it while amongst a crowd. The sentencing judge described this conduct as alarming and horrific, compounded by the appellant’s knowledge or foresight that others would return fire with their own guns. Two people were killed as a result of the gunfire and many suffered life altering injuries. [10] As to the second factor – the age, maturity, character, background and previous record of the appellant – the sentencing judge found that the appellant: · was 17 years old when the offences occurred, approximately seven months from his eighteenth birthday; · was almost 22 years old at time of sentencing; · was expelled from high school in grade 11, but completed his Ontario Secondary School Diploma while incarcerated; · began to use marijuana as a teenager and sold cocaine and marijuana; · had been found guilty of assault, theft under, possession of cocaine and failure to comply with a recognizance, none of which resulted in incarceration; · displayed good behaviour while in custody; · was given psychological treatment and testing and found to be a medium risk of re-offending; · denied that he shot Gifted; and · had a generally positive pre-sentence report. [11] The sentencing judge noted that the appellant was found to be a suitable candidate for an IRCS order under s. 42(2)(r)(iii) of the YCJA but found that the value of such an order for the appellant was debatable. In particular, he noted that if a youth sentence were coupled with an IRCS order its effectiveness would be hampered because the appellant would be required to serve his custodial sentence in an adult provincial facility pursuant to s. 89 of the YCJA , and would lose IRCS funding/programming if an order were made requiring him to serve his sentence in a federal penitentiary. If the appellant were not sent to a federal penitentiary, the sentencing judge considered it unclear how well provincial institutions could deal with young persons subject to an IRCS order. He concluded: “I do not find the fact that the [appellant] qualifies for an IRCS order greatly influences the conclusion whether a youth or an adult sentence is appropriate.” [12] The sentencing judge added that the appellant’s progress while in custody was the result of the structure and support that youth detention facilities had provided. The future was much less clear in the absence of this structure. The sentencing judge was concerned that the appellant had not acknowledged his central role in the shootings; on the contrary, he maintained that he was not responsible for firing the shots that started the gunfight. This, the sentencing judge stated, was of significance coupled with the fact that the appellant remained at medium risk of re-offending. [13] The sentencing judge rejected counsel’s characterization of the appellant’s actions as impulsive or spontaneous, describing them instead as reflecting a conscious understanding of the problems his attendance at the party might pose, and his choice of how to deal with those problems. The sentencing judge stated that the appellant’s decision to draw and fire his gun was “the antithesis of spontaneity”. At the time of the gunfight, the appellant was on bail on charges of robbery and failure to appear. Under the bail conditions, he was not to possess firearms and was subject to a 10:00 p.m. curfew. His decision to attend the party in breach of these bail terms, with knowledge of the problems that might arise, was “conscious and deliberate”. [14] On the third factor, which requires consideration of any other factors the court considers relevant, the sentencing judge addressed the interests of society and in particular the protection of the public, which he found must be balanced against the interests of young persons in rehabilitation and reintegration. The sentencing judge noted that if the appellant received the maximum youth sentence of seven years for second degree murder, pursuant to s. 42(2)(q)(ii) of the YCJA , he would be released from custody in four years. If he were to receive the maximum community supervision period of three years, he would be free of all supervision by approximately age 28. If, on the other hand, the appellant were to receive an adult sentence he would receive life imprisonment with a seven-year period of parole ineligibility. Because adult parole ineligibility runs from the date of detention, the appellant would be eligible for parole under an adult sentence one year before he would be released from prison to community supervision under a maximum youth sentence. An adult sentence therefore would not necessarily treat the appellant more harshly than a youth sentence. The primary benefit of an adult sentence would be the structure it would create for continued monitoring of the appellant’s conduct. [15] The sentencing judge concluded that the seriousness and circumstances of the offence clearly favoured the imposition of an adult sentence, while the appellant’s age, maturity, character, background and previous record supported the imposition of a youth sentence. The sentencing judge recognized that the appellant had made significant progress while in the youth system but expressed the concern that the principal benefits of the youth system would be lost even if a youth sentence were imposed because the appellant would have to be transferred to an adult facility. The sentencing judge reiterated the problems he perceived with an IRCS order in the appellant’s case. Finally, the sentencing judge concluded that the appellant’s offences were horrendous and instilled fear in the public, and that accountability, which equates to retribution, required a punishment that properly reflected the moral culpability of the appellant. [16] Balancing all of these factors, the sentencing judge concluded that the presumption of diminished moral blameworthiness had been rebutted and that the only sentence that would hold the appellant accountable was an adult sentence. It was also the only sentence commensurate with the damage that had been done, and the only sentence that would provide for the ongoing supervision of the appellant he considered necessary. He sentenced the appellant to life imprisonment with no parole eligibility for a period of seven years, concurrent on both counts of second degree murder, and to three years, concurrent, on the count of attempted murder. The appellant was credited with four years pre-trial custody and was sentenced to time served on the counts of aggravated assault and reckless discharge of a firearm. The alleged IRCS error [17] The focus of the appellant’s submissions was the sentencing judge’s analysis of the suitability of an IRCS order, which the sentencing judge properly considered in the context of assessing accountability. The appellant argues that the sentencing judge committed the error recognized by this court in M.W. Specifically, the sentencing judge erred in concluding that the value of an IRCS order was debatable because the appellant would serve his sentence in an adult institution, and as a result would lose the supports that made the IRCS program effective. [18] In M.W. , the sentencing judge imposed an adult sentence because, among other reasons, he was concerned that the appellants would be transferred to a federal institution where the funding for their IRCS orders would cease. This court held that the sentencing judge’s speculation was an error: s. 93(1) of the YCJA requires young persons serving a youth sentence to be transferred to a provincial correctional facility once they reach age 20, unless transfer to the federal system is warranted in the best interests of the young person or the public. There had been no suggestion that the appellants would be transferred to a federal institution. [19] The appellant submits that the decision in M.W. is dispositive of this appeal. He says that there is no evidence that he could not be managed effectively by a seven-year IRCS order or that a life sentence under the supervision of the Parole Board of Canada would provide better support. [20] We do not agree. The appellant was 21 years old when he was sentenced and, pursuant to s. 89(1) of the YCJA, was required to serve his sentence in an adult facility. (That the appellant appears to have remained in a youth facility beyond age 21 is not significant for purposes of the sentencing judge’s analysis.) Unlike in M.W. , the sentencing judge was concerned with the implications flowing from the appellant serving his sentence in an adult facility, regardless of whether that facility was provincial or federal. As he put it, “[i]t is quite apparent that the adult system is simply not set up to accommodate young persons, who are required to serve a sentence in an adult facility, but for whom it is desirable that they received the type of attention, and the type of programming, that is available in the youth system.” [21] The sentencing judge’s concerns about the suitability of the IRCS program for the appellant were based on more than simply where the sentence would be served and the risk of transfer to a federal facility. He was also concerned that the appellant had not acknowledged responsibility for the offences, a key consideration in the accountability analysis. Finally, as the Crown notes, other errors found in M.W. did not occur in this case, including unjustified concern in enforcement of the IRCS program and an erroneous belief that actual credit had to be given for pre-sentence custody when imposing a youth sentence. [22] However, even assuming that the sentencing judge erred concerning the value of an IRCS order, there is no basis for this court to intervene. Errors in the reasoning process do not justify intervention on appeal per se ; any error must have had an impact on the sentence imposed. In the absence of an error that impacted the sentence, there is no basis to intervene unless a sentence is demonstrably unfit: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. [23] In this case, the appellant’s eligibility for an IRCS order was simply one consideration relevant to the question of accountability. As the sentencing judge stated: “I do not find the fact that the [appellant] qualifies for an IRCS order greatly influences the conclusion whether a youth or an adult sentence is appropriate.” Put another way, the appellant’s sentence would have been the same regardless of the alleged error concerning the IRCS program. Rehabilitation was only one factor relevant to the question of accountability and was not determinative of the matter. The sentencing judge properly recognized that the central question he had to determine was whether or not a youth sentence would have sufficient length to hold the appellant accountable for his offending behaviour, and he found that it would not. This finding was open to the judge and is entitled to deference. [24] The alleged error concerning the IRCS program did not have an impact on the sentencing judge’s conclusion that the Crown had rebutted the presumption of reduced moral culpability. It was irrelevant to that issue: M.W. , at para. 107. The sentencing judge rejected the appellant’s characterization of his conduct as “impulsive”. On the contrary, he found that the appellant’s decisions reflected “a conscious understanding of the potential for problems associated with his attendance, and his choice as to the manner in which he was going to be able to respond to those problems.” He noted that there was no evidence that the appellant was suffering from a mental illness or disability at the time of the events that would have impaired his ability to understand the moral impact of his actions. The sentencing judge noted, further, that the appellant was on bail on charges of robbery and failure to appear and was in breach of both a weapons ban and a curfew order when he committed the offences. [25] The sentencing judge’s characterization of the appellant’s actions as “conscious and deliberate” is amply supported on the record. He considered the age, maturity, and the conduct of the appellant both before and after the offence – his improvement in custody as well as the medium risk of re-offending that he posed – and concluded that the presumption of diminished moral blameworthiness had been rebutted. This conclusion reveals no error and is entitled to deference. [26] In summary, there is no basis to interfere with the sentencing judge’s conclusions that the Crown had rebutted the presumption of reduced moral culpability; that only an adult sentence would hold the appellant accountable for his role in the events that led to two murders and more than 20 people being injured; that only an adult sentence was commensurate with the damage that was done; and, that only an adult sentence would provide for the ongoing supervision of the appellant he found necessary. This ground of appeal must be rejected. The collateral immigration consequences [27] The appellant submits that the trial judge failed to take into account the immigration consequences that would result from the imposition of an adult sentence. The appellant says that he is a permanent resident but not a citizen of Canada and would be subject to a removal order unless sentenced to a youth sentence under the YCJA . [28] The immigration consequences of an adult sentence were the subject of brief submissions from trial counsel but were not addressed by the sentencing judge in his decision. The sentencing judge should have addressed the matter, but his failure to do so was harmless in the circumstances. [29] Section 718.1 of the Criminal Code codifies proportionality as the fundamental principle of sentencing in the adult context. Collateral consequences are not to be applied in a manner that undermines that principle. As the Supreme Court of Canada has emphasized, collateral consequences “cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender”: R. v. Suter , 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 56. [30] The appellant caused the largest mass shooting in Toronto’s history. The sentencing judge concluded an adult sentence was required because he was satisfied that a youth sentence would not “have sufficient length to hold [the appellant] accountable for his offending behaviour” in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and s. 38 of the YCJA . The collateral immigration consequences could not have reduced the sentence to a youth sentence. [31] This ground of appeal must be rejected. The fresh evidence [32] As we have not found an error requiring that we sentence the appellant anew, the application to admit fresh evidence is dismissed. Conclusion [33] Leave to appeal sentence is granted, but the appeal is dismissed. “Janet Simmons J.A.” “E.E. Gillese J.A.” “Grant Huscroft J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the 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.K., 2021 ONCA 420 DATE: 20210614 DOCKET: C66065 Benotto, Trotter and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and C.K. Appellant C.K., in person Richard Litkowski, duty counsel Manasvin Goswami, for the respondent Heard: June 9, 2021 by video conference On appeal from the sentence imposed on November 2, 2018 by Justice J. Wright of the Ontario Court of Justice. REASONS FOR DECISION [1] C.K. pleaded guilty to what the trial judge described as a brutal and savage beating of a female who had come to his home to use drugs. He was sentenced to six years to be served concurrently on convictions for assault, assault causing bodily harm, sexual assault and unlawful confinement. He appeals the sentence and raises two issues. [2] First, he submits that the trial judge miscalculated the pre-sentence custody and consequently, he did not receive the proper credit for time served. C.K. was in pre-sentence custody from September 12, 2016 until November 2, 2018. We have calculated that amounts to 781 days. He was given credit for 782 days at 1:1.5. We see no error in the calculation [3] Second, C.K. submits that his sentence should be either stayed or reduced because of the ten-month delay from conviction to sentence. He relies on this court’s decision in R. v. Charley 2019 ONCA 726 which set a presumptive ceiling of a five-month delay. We note at the outset that Charley post-dated the sentencing so that the transitional exceptional circumstances set out in a typical Jordan analysis would apply. Here, the guilty plea was February 1, 2018. Following the plea, the appellant brought an application to strike the plea. That application was dismissed on May 3, 2018. He was sentenced on November 2, 2018. Therefore, three months of the ten-month delay between conviction and sentence was attributable to the appellant’s application. The remaining delay related to the fact that the appellant fired his counsel and obtained the Gladue Report. The total delay in the circumstances is not unreasonable. [4] Leave to appeal sentence is allowed, but the sentence appeal is dismissed. “M.L. Benotto J.A.” “Gary Trotter J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bullens, 2021 ONCA 421 DATE: 20210614 DOCKET: C66649 Benotto, Trotter and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Ian Bullens Appellant Ian Bullens in person Ingrid Grant, as duty counsel Philippe Cowle, for the respondent Heard: June 9, 2021 by video conference On appeal from the sentence imposed on April 20, 2017 by Justice Alfred O’Marra of the Superior Court of Justice. REASONS FOR DECISION [1] At the outset of the hearing, Mr. Bullens confirmed that he was not pursuing his conviction appeal. With respect to his sentence appeal, the only issue to be addressed is the sentencing judge’s failure to accord Mr. Bullens a credit of 3 to 5 months based on the principle from R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.). [2] The appellant says that, throughout the period he was on bail, he was prevented from seeing his children because they lived in a different city. The appellant was restricted by the conditions of his bail to his home, except for work or in the presence of his surety, which made travelling to see his children impossible. He submits that this impact on him warrants a Downes credit and the sentencing judge erred in not giving him that credit. [3] We do not agree. We begin by noting that it does not appear that the situation regarding the appellant’s children was brought to the sentencing judge’s attention. Hence, his reference to the “paucity of evidence to suggest any significant interference with [the appellant’s] liberty while on bail”. [4] In any event, there is always a measure of interference with a person’s liberty interests that arises from being on bail. That is why the issue of giving credit for such conditions is generally reserved for situations where the bail conditions are “stringent”. It follows from that fact, as noted in Downes (at para. 33), that “the circumstances may dictate that little or no credit should be given for pre-sentence house arrest”. [5] There was no error in principle arising from the sentencing judge’s determination that no credit should be given to the appellant arising from his bail conditions. There is, consequently, no basis upon which this court can properly interfere with that decision. [6] The conviction appeal is dismissed as abandoned. Leave to appeal sentence is granted but the appeal is dismissed. “M.L. Benotto J.A.” “Gary Trotter J.A.” “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. W.E.G., 2021 ONCA 365 DATE: 20210531 DOCKET: C65992 Fairburn A.C.J.O., Watt and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and W.E.G. Appellant Margaret Bojanowska, for the appellant Elena Middelkamp, for the respondent Heard: January 28, 2021 by video conference On appeal from the convictions entered by Justice Nancy J. Spies of the Superior Court of Justice, sitting with a jury, on June 26, 2018, and from the sentence imposed on October 22, 2018, with reasons reported at 2018 ONSC 6246. Fairburn A.C.J.O.: A. Overview [1] The appellant was convicted of sexual assault, uttering a threat to cause death, and two counts of assault against the complainant, with whom he was in a domestic relationship. He appeals from those convictions. [2] This was a two-witness jury trial: the complainant testifying for the Crown and the appellant testifying in his own defence. Credibility was the sole issue at trial. If the complainant was telling the truth, she was the victim of a serious sexual assault at the hands of the appellant, as well as multiple assaults and a threat to cause death. The appellant denied everything. He said that the complainant had fabricated the allegations because she wanted to obtain sole custody of their child and because she thought that her chances of obtaining immigration status would be improved if she made the false allegations. [3] The appellant raises four grounds of appeal: (1) the application judge, who was not the trial judge, erred in dismissing the appellant’s third-party records application on the basis that the records were not likely relevant; (2) the trial judge erred in failing to instruct the jury on the permitted and prohibited uses of the complainant’s prior consistent statements; (3) the trial judge erred in failing to adequately instruct the jury on issues of credibility; and (4) the trial judge erred in failing to provide an adequate corrective instruction to the jury respecting improper aspects of the trial Crown’s submissions. [4] In my view, the appeal must be allowed on the prior consistent statements issue. In light of that result, with one exception, there is no need to address the other grounds of appeal. The exception relates to the third-party records issue. As this issue may arise again at the new trial, for the sake of efficiency, I will explain in these reasons why the application judge did not err in her analysis. B. The Prior Consistent StatementS Issue (1) Background Information [5] The complainant and the appellant met in March 2012. After a few dates, the complainant moved in with the appellant, who resided in his parents’ home. Not long after moving in together, the complainant became pregnant. While she testified that everything was good at the beginning of their relationship, she said that this all changed when she was one to three months’ pregnant. By then, the appellant began to verbally abuse the complainant. [6] Once their child was born, the verbal aggression escalated to physical assaults. This abuse continued over the course of their three-year relationship. The complainant testified that the appellant would yell at her, insult her, and strike her. She testified that on one occasion, the appellant threatened her with death, and on another occasion, he sexually assaulted her. [7] The appellant challenged the complainant’s evidence on the basis of alleged inconsistencies between her trial testimony and things she had previously said in: (1) a statement she had given to the police; (2) her testimony at the preliminary inquiry; and (3) a document she had filed in the context of a family court proceeding. Many of the alleged prior inconsistent statements were put to the complainant during cross-examination by the defence counsel. [8] In an effort to rehabilitate the complainant during re-examination, the trial Crown took her to different parts of the same three prior statements, drawing her attention to things that she had purportedly said to others and things she had re-enacted for the police (collectively referred to in these reasons as the “prior consistent statements”), all of which the trial Crown maintained were consistent with her trial testimony. As these prior consistent statements lay at the core of the appellant’s complaint about the jury charge, a few examples are offered in the following paragraphs. (a) The Choking Incident [9] In her examination-in-chief, the complainant testified about having been choked by the appellant in their bedroom. She testified that once the appellant grabbed her by the neck, she stood up from the bed and he leaned her against the wall. During cross-examination, the defence counsel confronted the complainant with a transcript excerpt from her police statement, suggesting that she had previously told the police that the choking incident took place while she was seated on the bed with her back against the wall. [10] In re-examination, the trial Crown read out from the transcripts of the police statement and the preliminary inquiry and played a portion of the complainant’s videotaped police statement. These were said to be the complainant’s prior consistent statements relating to the choking incident. By way of example, during re-examination, the trial Crown played a 44-second video clip of the police statement, involving the complainant acting out the alleged choking incident, a re-enactment that showed the complainant in a standing position. (b) The Assaults in Bed [11] During cross-examination, the defence counsel suggested that there was an inconsistency between the complainant’s trial testimony and her prior statements regarding the alleged assaults that took place in bed. Specifically, the defence counsel said that the complainant’s police statement did not refer to the appellant punching the complainant in the leg. [12] The trial Crown attempted to rehabilitate the complainant on this point in re-examination by playing a 1 minute and 22 second portion of the video from the police statement, showing another re-enactment for the police, with the complainant demonstrating “two different gestures”. The trial Crown suggested to the jury that the complainant’s video re-enactment was consistent with the complainant’s testimony at trial. (c) Whether the Appellant’s Family Intervened [13] During cross-examination, the complainant testified that while the appellant’s family never witnessed any of the alleged assaults, they would come to her defence when the appellant became verbally aggressive. [14] The complainant was then confronted with passages from a document that she had filed in a family court proceeding involving the custody of the complainant and appellant’s child. This document was said to reflect inconsistencies between what the complainant testified to at trial and what she said in the family court proceeding about the appellant’s family’s response to his abusive behaviour. Specifically, the document referenced the fact that she had “no trust in the [appellant’s] family, as they did not try to stop the [appellant’s] abusive behaviour.” The complainant attempted to explain that the family court document was referring to abusive conduct other than the abusive conduct forming the subject of the trial. [15] In re-examination, the trial Crown read the same passages from the family court document aloud. One of those passages follows: During the time living together, the [appellant] verbally, physically and sexually abused her. Besides using derogative and profane language at her, he also made death threats towards her. He physically pushed her. He physically hit her and pushed her …. He acted violently and aggressively in front of the child. The child witnessed this abusive behaviour. [16] After reading from the document, the trial Crown attempted to explore with the complainant what the “other abusive behaviour” was that she had referred to during cross-examination. The trial judge intervened to stop the complainant from answering the question, the re-examination came to an end, and the complainant left the witness stand. [17] The trial judge then gave the jury a mid-trial instruction about how to approach prior inconsistent statements. The content of this mid-trial instruction will be discussed shortly. Following the mid-trial instruction, the trial Crown closed the prosecution’s case, the defence counsel provided an opening address, and the appellant testified. (d) The Positions of the Parties [18] The appellant argues that the trial judge committed a reversible error by failing to instruct the jury on the permitted and prohibited uses of the complainant’s prior consistent statements. While the respondent agrees that there was an absence of a limiting instruction in the jury charge, and that as a general rule an instruction should be given, the respondent points to a number of factors that demonstrate that the absence of the instruction in this case did not constitute a reversible error. Respectfully, I do not accept that the matter is as benign as the respondent suggests. (2) The Governing Principles [19] A lie can be repeated just as easily as the truth. Accordingly, the fact that a complainant says something prior to trial that is consistent with what that complainant testifies to at trial does not make that complainant’s evidence more likely to be true. This is why prior consistent statements are generally inadmissible at trial. [20] Like most rules of evidence, there are notable exceptions. Some exceptions relate to where the prior consistent statements properly form the subject of narrative, serve to rebut allegations of recent fabrication, and serve to refute alleged prior inconsistent statements: see R. v. M.P. , 2018 ONCA 608, 363 C.C.C. (3d) 61, at paras. 77-78; R. v. M.A.J. , 2015 ONCA 725, 329 C.C.C. (3d) 149, at paras. 45-47. [21] When prior consistent statements properly form part of the trial record, the trial judge is generally required to instruct the jury on both the permitted and prohibited uses of those prior consistent statements: M.P. , at paras. 79-80. The trial judge is required to warn the jury that a concocted statement will remain concocted despite the number of times that it is repeated. As Watt J.A. puts it in his model jury instruction, “Once a lie, always a lie”: David Watt, Watt’s Manual of Criminal Jury Instructions , 2nd ed. (Toronto: Carswell, 2015), at p. 419 (Final 35-D). [22] Therefore, the trial judge is generally required to inform the jury that what the witness said before the trial about the same events described in the witness’s testimony cannot be used as evidence of the truth of what was said. It also cannot be used to bolster the witness’s credibility. Put a different way, the trial judge should instruct the jury that repetition of what is said to have happened does not lend truth to a witness’s account. Nor does the repetition act as independent evidence of what occurred. The trial judge should also instruct the jury on the limited use that can be made of the prior consistent statements, which permitted use will be informed by the particular exception that is engaged: M.P. , at para. 79. (3) The Absence of a Necessary Instruction [23] In this case, the trial Crown’s purpose for taking the complainant through some of her prior consistent statements in re-examination, including what were said to be consistent video re-enactments, was to endeavour to rehabilitate her following the defence attack on her credibility in cross-examination, an attack that was at least partially predicated upon prior inconsistent statements. In other words, the prior consistent statements were used to rebut the defence assertion that the complainant had been inconsistent in her prior statements: see R. v. L.O. , 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 36. [24] The appellant acknowledges that the prior consistent statements, including the video re-enactments, were admissible for that purpose. Therefore, admissibility is not the issue on appeal. Rather, the issue is focused upon the trial judge’s failure to instruct the jury about the limited use they could make of the prior consistent statements and the fact that they could not infer that the complainant was telling the truth or that the alleged events happened, simply because she had said the same things on previous occasions. (a) Responding to the Respondent’s Arguments [25] While the respondent fairly acknowledges that the prior consistent statement instruction should have been given to the jury in this case, the respondent goes on to emphasize that perfection is not the standard by which to measure the adequacy of a jury charge. The respondent stands on solid ground with this submission. [26] Undoubtedly, perfection is not the standard by which jury charges should be assessed: R. v. Araya , 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39. The task of an appellate court is not to ensure that a jury received a perfect instruction, but to ensure that the trial judge’s instructions properly and adequately prepared the jury for deliberation: Araya , at para. 39; R. v. Barrett , 2016 ONCA 12, 346 O.A.C. 1, at para. 13. As Moldaver J. said in R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8, a functional approach in reviewing a jury charge on appeal is required, one that asks whether the jury charge as a whole “enabled the trier of fact to decide the case according to the law and the evidence”. See also R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31. [27] In applying a functional approach, the respondent encourages this court to rely upon the criteria set out in M.P. , at para. 80, for assessing the effect of a trial judge’s failure to properly apprise a jury about the limited use to be made of prior consistent statements. As noted in M.P. , while “[e]ach case falls to be decided according to its own idiosyncratic facts”, there are five relevant considerations to be taken into account when determining whether the absence of the instructions constitute a reversible error: (1) the nature of the prior consistent statements; (2) how many prior consistent statements were introduced or repeated; (3) who introduced the evidence; (4) whether the party introducing the prior consistent statements relied upon them for an improper purpose; and (5) whether there was an objection to either the introduction of the prior consistent statements or the failure to provide an instruction to the jury limiting their use: M.P. , at para. 80. [28] The respondent emphasizes that the bulk of the evidence involving the complainant’s prior statements was introduced by the defence in an attempt to discredit the complainant by putting alleged prior inconsistencies to her in cross-examination. Therefore, the trial Crown’s references to the prior consistent statements in re-examination were introduced and advanced for a proper purpose: to respond to the defence attack on the complainant’s credibility. [29] The respondent also points out that the trial Crown did not invite the jury to use the prior consistent statements for an improper purpose, such as inferring credibility from the complainant’s consistency. Indeed, the trial Crown specifically told the jury in his closing address that he was not relying on consistencies between the trial evidence and the prior statements for any purpose other than rebutting the suggestion of inconsistencies on various material points. [30] The respondent also points to the trial judge’s proper jury instructions as they related to what the jury should make of the alleged prior inconsistent statements, including that the jury was instructed that those prior inconsistent statements could not be used for the truth of their contents. [31] Finally, the respondent notes the lack of an objection at trial by the defence counsel in relation to the absence of any instruction to the jury as it related to prior consistent statements. [32] A failure to object is a factor on appellate review, because it “may be indicative of the seriousness of the alleged violation”, but it is not dispositive of a ground of appeal predicated on an erroneous jury charge: Daley , at para. 58. See also Thériault v. The Queen , [1981] 1 S.C.R. 336, at pp. 343-44; Calnen , at paras. 37-40; R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 38. While a failure to object will often be taken as a reflection of the overall accuracy of the instructions and the seriousness of the error alleged for the first time on appeal, from time-to-time, a failure to object can simply constitute a serious oversight on the part of trial counsel. [33] In this case, the failure to object to the inadequacy of the jury charge as it related to the prior consistent statements appears to fall into this latter category. [34] In addition to the transcripts of the police statement and the preliminary inquiry being read to the complainant in front of the jury, the video clips of the complainant’s police statement, where she re-enacted the choking incident and the assaultive behaviour in bed, were played for the jury. This all occurred during re-examination. Accordingly, some of the most central aspects of the complainant’s version of events described in her examination-in-chief were reinforced through prior consistent statements, which were the very last things the jury heard from the complainant right before the trial Crown closed the prosecution’s case. [35] Therefore, while I agree with the respondent that the prior consistent statements were only elicited because of the defence use of alleged prior inconsistent statements, those statements were the last thing that the jury heard during the Crown’s case and they went to the heart of the allegations. They called out for instructions on their permitted and prohibited uses. [36] Instead, the only instruction the jury received was in relation to the alleged prior inconsistent statements elicited by the defence. In my view, that instruction aggravated the error. (b) The Impact of the Prior Inconsistent Statements Instructions [37] The jury received two instructions regarding the proper approach to prior inconsistent statements. [38] First, immediately following the complainant’s evidence, and just prior to the trial Crown announcing that the prosecution’s case was closed, the trial judge provided the jury with a mid-trial instruction relating only to the alleged prior inconsistent statements. [39] That instruction included the standard direction often given to juries when forced to consider allegedly inconsistent statements: common sense may suggest that when a person says things at trial that are different from what they have said before, this difference may be important in deciding “whether or how much you believe of or rely upon” the witness’s testimony. The jury was then told to consider the “nature and extent of any differences” in the statements to decide whether they will believe or rely upon the witness’s testimony. Finally, the jury was instructed as follows: You cannot use the earlier statement as evidence of what actually happened, unless you are satisfied that the witness accepted it as true while in the witness box in this courtroom. [40] Second, during the final jury charge, a whole section was devoted to the complainant’s prior statements, prefaced with the heading: “Prior Statements of [the complainant] to Police, Her Evidence at the Preliminary Inquiry and Her Application to the Family Court.” The instructions that followed provided a somewhat detailed recounting of both the allegedly inconsistent and consistent prior statements, including, but not limited to, a suggestion to the jury that they “consider what [they] observed when [the trial Crown] played those portions of the videotaped interview.” The passage from the document filed in the family court proceeding cited by the trial Crown at the end of re-examination, and set out earlier in these reasons, was also read out again in the jury charge. [41] The review of the prior statements – both the inconsistent and consistent portions of those statements – was followed by a legal instruction focused only on how to approach the alleged prior inconsistent statements. That instruction loosely tracked the specimen instruction provided in Watt’s Manual of Criminal Jury Instructions and, to a large extent, repeated the mid-trial jury instruction on prior inconsistent statements, as just previously reviewed. The instruction concluded with the following legal direction: Whatever you choose to make of the differences, you can only use the evidence given under oath in this trial as evidence of what actually happened. You cannot use the earlier statement as evidence of what actually happened, unless you are satisfied the witness accepted it as true while in the witness box. [42] If anything, the mid-trial and final jury instructions regarding how to approach the prior inconsistent statements aggravated the prejudice arising from the failure to instruct the jury on the permitted and prohibited uses of the complainant’s prior consistent statements. [43] In the case of the mid-trial instruction, it immediately followed the complainant’s evidence, where the jury had heard both inconsistent and consistent prior statements. In the case of the final jury instructions, the legal direction to the jury immediately followed the trial judge’s review of both the consistent and inconsistent statements. Yet, both legal instructions only addressed how to approach the alleged prior inconsistent statements. [44] The instructions relating to the prior inconsistent statements, contrasted with the silence relating to the prior consistent statements, may well have left the jury with the mistaken impression that they could use the consistent statements as they pleased – perhaps as independent evidence of the truth of their contents and/or evidence that could serve to bolster the complainant’s credibility. Clearly, neither of these options was available to the jury, but they needed to be instructed on that legal rule. [45] As well, both the mid-trial and final jury instructions contained the following legal direction: “You cannot use the earlier statement as evidence of what actually happened, unless you are satisfied the witness accepted it as true while in the witness box”. While there is nothing wrong with this instruction when it comes to the prior inconsistent statements, the jury may well have been left thinking that they could also use the prior consistent statements  – which were obviously accepted as true by the complainant – as evidence of “what actually happened”. They would have been wrong if they proceeded on that mistaken belief. [46] It is true that this court has previously dismissed appeals where an instruction relating to prior consistent statements has been missed: see M.P. , at paras. 84-88; L.O. , at para. 38; M.A.J. , at paras. 63-66. However, this case is distinguishable, as it turns on its own facts, including the nature of the prior consistent statements, the timing of those statements and where they sat in the context of the trial as a whole, and the importance of the absent instructions when considered against the instructions that were actually provided to the jury regarding the prior inconsistent statements. (c) Conclusion [47] While the respondent is right that the trial Crown told the jury that he was not inviting them to infer credibility based on the complainant’s prior consistent statements, and this comment may have helped soften the blow arising from the absence of the instruction, the fact remains that the jury was left without guidance on how to use this potentially powerful and highly problematic evidence. [48] Ultimately, this was a two-witness trial where credibility lay at the core of what the jury needed to resolve. The complainant was the only Crown witness, and her prior statements formed a significant portion of both the defence counsel’s cross-examination and the trial Crown’s re-examination. On the most central issue at trial, the jury required proper instructions. Failing to instruct the jury on the fact that the prior consistent statements could not be used as proof of what happened or as evidence of credibility ran a significant risk of misuse. [49] In the circumstances of this case, the absence of an instruction to the jury regarding the permitted and prohibited uses of the complainant’s prior consistent statements constitutes a reversible error. Therefore, I would allow the appeal and order a new trial. C. Third-Party RecordS Issue [50] As I would order a new trial in this matter, there is no need to deal with the grounds of appeal pertaining to other alleged difficulties with the trial judge’s instructions to the jury. This comment should not be taken as suggesting that those grounds of appeal had any traction. However, since the third-party records issue may arise again at a new trial, for the sake of efficiency, I will briefly address this issue. [51] Prior to his convictions, the appellant brought a third-party records application, which was dismissed by Justice Wailan Low on June 7, 2018, with reasons dated June 28, 2018. [52] The complainant came to Canada from El Salvador in 2009. She was eventually denied refugee status, but she continued in her efforts to obtain permanent residency in Canada. [53] The appellant brought a pre-trial application to obtain “ [ a ] ll records in the possession of the Immigration and Refugee Board of Canada” pertaining to “any claim made by [ the complainant ] .” [54] The appellant filed an affidavit from his sister, dated May 8, 2018, as evidence on the application. His sister attested to the fact that about one month before the complainant went to the police to disclose the allegations of abuse, the complainant had told the appellant’s sister that she had been advised by someone else that if she reported that she had been abused in Canada, it would improve her chances of staying in the country. The appellant’s sister deposed as follows: “I believe that [the complainant] has fabricated the allegations against [the appellant] to obtain some benefit with respect to her immigration claim that the application has changed to Humanitarian and Compassionate Grounds.” [55] The application judge dismissed the third-party records application, concluding that the appellant has not established that the third-party records were “likely relevant” within the meaning of s. 278.5(1)(b) of the Criminal Code , R.S.C. 1985, c. C-46. [56] The appellant claims that the application judge misunderstood the central nature of the application when she found that, “ [o]bjectively speaking”, the making of a claim of abuse in Canada would “not likely have” the effect of improving the chances of allowing someone to remain within Canada. As the appellant puts it in his factum on appeal, “The issue was not whether the allegation of abuse would, in the eyes of the Immigration and Refugee Board, affect the application, but whether the complainant believed the allegation could affect the outcome and was motivated to make an allegation based on her belief” (emphasis in original). [57] As well, the application judge is said to have erred by concluding that the defence only wanted the third-party records to challenge the complainant’s credibility, when in fact those records were necessary to show that the complainant had a motive to fabricate the allegations. [58] I see no error in the application judge’s conclusion that the third-party records were not likely relevant. [59] A third-party records application involves two stages. Within the first stage, there are two steps, the first being whether the subject records are “likely relevant”: Criminal Code , s. 278.5(1)(b). If the third-party records are likely relevant, then there must be a determination as to whether it is “necessary in the interests of justice” to produce the records to the court for review: Criminal Code , s. 278.5(1)(c). This application started and ended at the first step of the first stage, the one involving likely relevance. [60] Likely relevance means that there is a “reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify ” (emphasis in original): R. v. O’Connor , [1995] 4 S.C.R. 411, at para. 22, per Lamer C.J. and Sopinka J. (dissenting, but not on this point); R. v. Mills , [1999] 3 S.C.R. 668, at para. 45 . This is a higher threshold than the very modest threshold test for regular Crown disclosure: Mills , at para. 45; R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 72. [61] The application judge understood this legal threshold. She simply found that there was no evidence that there was anything in the complainant’s refugee claim file that could be relevant to the issues to be decided at trial. Indeed, the appellant acknowledged during oral submissions before the application judge that there would not be anything in the complainant’s file supporting the claim that the abuse allegations were falsified. [62] When pressed by the application judge to articulate the likely relevance of the third-party records, the appellant indicated that the records would not assist with determining whether the complainant falsified her allegations but would assist with determining a “timeline of events”. As the defence counsel put it: What I’m suggesting is that what it may provide us with is some corroboration of what my client’s position would be with respect to the timeline of events that occurred in the months preceding these allegations being brought. I don’t think that those records are going to substantiate that she admitted to my client’s sister that she fabricated something. [63] In order to support the allegation of a motive to fabricate, the third-party records would have had to reference the advice that the complainant was said to have received about her refugee claim being strengthened by making an allegation of abuse. The application judge was right that there was no evidence that the complainant’s refugee file would contain information that would be relevant to determine the trial issues. Indeed, the defence counsel conceded that the file would not support the claim that the allegations were fabricated. [64] I do not agree that the application judge erred by failing to appreciate the nature of the application. While the application judge made passing reference to the fact that reporting an assault occurring in Canada would not likely improve one’s chances of remaining in Canada, this observation was rooted in viva voce evidence given by the record holder before the application judge. The application judge was well aware of the defence position that the third-party records were relevant to the allegation that the complainant believed that making a claim of assault would improve her chances of remaining in Canada. Indeed, during a back-and-forth exchange with counsel, the application judge accurately summarized the defence position concerning motive to fabricate. [65] Nor do I accept the appellant’s suggestion that the application judge erred by characterizing the relevance of the third-party records as going only to the “credibility of the complainant”, as opposed to a motive to fabricate. At its core, an allegation of a motive to fabricate is, in fact, an allegation that the witness is lying – that the witness lacks credibility. Regardless, the application judge understood the appellant’s position that the complainant “made a false allegation against the [appellant] in order to further her claim for refugee status.” Clearly, the application judge understood the core nature of the appellant’s claim. She simply rejected it on the basis that she had no information before her that would suggest that there would be anything in the third-party records to support that claim. [66] Finally, I would highlight the following observation made by the respondent on appeal. The fact is that the appellant was able to advance his claim of motive to fabricate at trial without the third-party records. During cross-examination, the complainant confirmed that she had initiated an immigration claim prior to meeting the appellant, that she had a hearing in 2012, and that her claim had been denied later that year. She also acknowledged that her claim was ultimately allowed on October 31, 2017, after which she became a permanent resident of Canada. Finally, she acknowledged that she referenced her allegations against the appellant in her renewed claim. [67] Accordingly, the defence counsel was able to achieve through cross-examination at trial what she had hoped to achieve with the third-party records: she established a timeline of the immigration procedures; and she received an acknowledgement that the renewed claim for immigration status included the criminal allegations against the appellant. [68] Therefore, the application judge made no error in concluding that the third-party records were not likely relevant and by dismissing the appellant’s third-party records application. D. Disposition [69] For the reasons above, I would allow the conviction appeal, set aside the convictions, and order a new trial. [70] Although the Notice of Appeal contains reference to an appeal from sentence, given the need for a new trial, there is no reason to address the sentence appeal. Released: “JMF May 31, 2021” “Fairburn A.C.J.O.” “I agree David Watt J.A.” “I agree Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 410 DATE: 20210611 DOCKET: C67355 Doherty, Nordheimer and Harvison Young JJ.A. BETWEEN Charlesfort Developments Limited Plaintiff (Respondent) and The Corporation of the City of Ottawa Defendant (Appellant) Alyssa Tomkins and Anne Tardif, for the appellant Timothy J. Hill and Mark van Zandvoort, for the respondent Heard: December 15, 2020 by video conference On appeal from the judgment of Justice Sally A. Gomery of the Superior Court of Justice, dated July 24, 2019, with reasons reported at 2019 ONSC 4460. Harvison Young J.A.: A. Overview [1] The respondent, Charlesfort, is a property developer in Ottawa. Charlesfort purchased a property it intended to redevelop for a condominium project. It commenced an action against the appellant, the City of Ottawa, for negligent misrepresentation after the City failed to accurately inform Charlesfort of the contents of a municipal easement in 2004-2005 during the rezoning process. The easement ran along the northern edge of the project site’s lot line but was located on an adjacent property. [2] During the rezoning process, Charlesfort believed that the easement contained a trunk sewer. It was not until a few years later, during the site plan approval process, that it learned that the easement contained a four-foot-wide water main which was old and in unknown condition. The water main sat within three or four feet of the northern lot line. Millions of gallons of water flowed through the water main every hour. [3] The nature and location of the water main meant that Charlesfort could not excavate and construct its underground parking garage right up to the northern lot line as planned. As a result, Charlesfort was required to redesign the proposed garage and reduce the parking available to purchasers of units, which resulted in significant delays in construction and increased costs. Charlesfort claimed that the City negligently misrepresented what was in the easement during the rezoning process and that the City was liable for Charlesfort’s damages of around $6 million arising from increased construction costs, decreased project revenue, and damages associated with the delay, among other things. [4] The trial judge held that the City made negligent misrepresentations to Charlesfort during the rezoning process about the contents of the easement. The City owed a duty of care to Charlesfort based on their close and direct relationship during the rezoning process. The City had implicitly undertaken to take reasonable care to provide Charlesfort with accurate information about infrastructure in adjacent property that was materially relevant to the proposed redevelopment. The City failed to ensure that accurate and complete information was communicated to Charlesfort, and Charlesfort reasonably relied on the information it received from the City’s planning department. The trial judge awarded damages of around $4.5 million to Charlesfort for increased development costs, lost revenue, and lost interest. [5] The City appeals from this judgment. It says that it did not owe a duty of care to Charlesfort. I agree. I would allow the appeal for the following reasons. B. Facts [6] In 2004, Charlesfort purchased a property it planned to redevelop into the Continental, a condominium building. The purchase was conditional on both site remediation and the approval of a rezoning application, which was filed in 2003 by a previous developer, so that Charlesfort could build a high-rise condominium on the property. [7] The zoning in place at the time was a general commercial designation and included setbacks of around six to seven metres at the front and rear. The rezoning application sought a change of use to a residential designation, changes to permitted height and density, and a reduction in the setbacks to allow construction above-grade to within one metre of the front of the property and right up to the northern lot line in the rear. The application proposed parking on site and included drawings of an underground parking garage that would extend from the northern to southern lot lines, with no setback. [8] The City’s practice at the time for rezoning applications was to assign a City planner to prepare a summary of the application, which was circulated to interested parties to obtain feedback. The interested parties included internal groups, such as the Infrastructure Approvals division, and external agencies, such as school boards and pipeline companies when the rezoning application involved property within 200 metres of their pipelines. The City’s planning department passed on any comments it received through the circulation process to the applicant. The City planner would obtain additional information and assessments from the applicant, if necessary, and prepare a staff report which would indicate whether the City’s planning department recommended the proposed rezoning. The staff report, if approved by senior leadership of the City’s planning department, would be discussed at a public meeting of the Planning and Environment Committee (the “Planning Committee”). If the Planning Committee voted to approve the application, it would go to City Council for a vote. [9] The City planner who was assigned to Charlesfort’s rezoning application circulated his summary internally to the Infrastructure Approvals division and externally in January 2004. He received some comments from the Infrastructure Approvals division, which were relevant to the site plan stage but did not require Charlesfort to do anything further for the rezoning application. He passed these comments on to Charlesfort. Charlesfort retained a local planning firm in August 2004 to assist with the rezoning application process. [10] In the course of the rezoning application, the City planner, who was assigned to the file, erroneously advised Charlesfort’s planner that the easement contained a trunk sewer. Charlesfort’s principal was not aware of the statement at the time. The statement was repeated in the staff report, which was considered at a Planning Committee meeting on February 22, 2005. At the Planning Committee meeting, a representative for the owner of the adjacent property corrected this error, advising that the easement in fact contained a water main. Charlesfort’s principal and planner were present at the meeting. [11] Just prior to the Planning Committee meeting, the program manager of the Infrastructure Approvals division sent an email to various City engineers about the proposed redevelopment. He asked them to recommend a sewer to connect to and to advise whether there were any issues with storm and water services at the location. An engineer with the water resources group responded by email that there were no special water distribution issues related to the site, and he also noted the presence of a four-foot transmission main just north of the property. This response was received by the Infrastructure Approvals division but was not forwarded to the City’s planning department, nor was it forwarded to Charlesfort. [12] The rezoning application was approved by the Planning Committee, and City Council passed a site-specific zoning by-law with respect to the property in March 2005. The owner of the adjacent property, where the easement was located, appealed City Council’s decision to the Ontario Municipal Board. The parties settled the appeal, and the Ontario Municipal Board issued a decision based on the settlement, which approved a one-metre above-grade setback from the northern lot line. There was no provision for a below-grade setback. In September 2005, Charlesfort waived the conditions related to rezoning and site remediation in its agreement of purchase and acquired the property. [13] The next step in the development approvals process required Charlesfort to obtain site plan approval. In August 2007, Charlesfort applied to the City for site plan approval for the Continental. The project included a 15-storey tower with a two-storey underground parking garage. Charlesfort expected that construction of the Continental would finish by the summer of 2009. [14] In October 2007, the City’s planning department sent Charlesfort some preliminary comments on its site plan approval application. Among other things, the City asked for revised drawings showing the water main and the easement. Charlesfort’s principal saw this letter but did not immediately understand the implications of the reference to the water main. [15] Charlesfort was not initially alarmed when it was told about the water main in October 2007. It had obtained a demolition permit around this time and applied for an excavation permit. Meanwhile, the City realized that the water main was very close to the property line and would need to be taken into account in the redevelopment of the property, particularly the underground parking garage which was planned to extend up to the property lot line. There were concerns about the condition of the water main given its age and that vibrations from excavation could affect its integrity and risk a breach. [16] The company that would excavate the site for Charlesfort revised its proposed approach for excavation to reduce risks, but the City was not willing to permit construction to go ahead if the water main could not be turned off. The water main could not be shut down for the foreseeable future because the water main had no back up while the City was doing maintenance work on its water systems, and the City was not sure that the valves that needed to be turned off were functional. Even if the water main could be shut down, City engineers had concerns about construction right next to the water main, whether there would be sufficient access to repair a possible break in the water main if a structure was constructed adjacent to it, and whether the easement itself adequately protected the water main. [17] In July 2008, Charlesfort changed its parking garage plans by moving it back from the northern lot line to increase the distance between the structure and the water main. Charlesfort signed a site plan agreement with the City in September 2008 and received an excavation permit and site plan approval. The condominium was completed in November 2011, around two years later than initially contemplated. C. Decision below [18] The trial judge held that the City owed a duty of care to Charlesfort in 2004-2005 during the rezoning process. She first considered whether the City had an established duty of care in existing case law. She concluded that a novel duty of care analysis was required and conducted an Anns/Cooper analysis: Anns v. London Borough of Merton , [1977] 2 All E.R. 492 (H.L. (Eng.)); Cooper v. Hobart , 2001 SCC 79, [2001] 3 S.C.R. 537. The parties on appeal do not dispute that a novel duty of care analysis was needed. The trial judge specifically cited Deloitte & Touche v. Livent Inc. (Receiver of) , 2017 SCC 63, [2017] 2 S.C.R. 855, as the leading authority for the application of the Anns/Cooper test in the context of a negligent misrepresentation claim. [19] The trial judge found that the parties had a sufficiently close and direct relationship to establish a duty of care. At the proximity stage of the analysis, she relied on a number of factors, including that, in making planning decisions such as rezoning decisions, the City had to avoid risks to public health and safety and critical infrastructure and that a water main breach would pose a serious threat to health and safety as well as the security of critical infrastructure. In addition, she determined that the City did not ask Charlesfort to conduct its own investigation of the easement, that the City had information about the size of the water main that Charlesfort could not obtain through publicly available sources, and that the parties expected that any information obtained by the City through the rezoning application summary circulation process would be shared with Charlesfort. [20] In those circumstances, the City “implicitly” undertook to take reasonable care to provide Charlesfort with accurate information about infrastructure in adjacent property that was materially relevant to the redevelopment. [21] The trial judge went on to find that the City could reasonably foresee that Charlesfort would rely on its representations about the contents of the easement and that Charlesfort would incur losses if the representations were inaccurate or incomplete due to negligence. The City knew that Charlesfort was seeking rezoning for the purpose of building a 15-storey condominium tower with an underground parking garage extending right up to the northern lot line. It was foreseeable that failing to tell Charlesfort about a feature that would prevent it from building the garage as planned would cause damage in the form of increased construction costs, lost profits, and delay costs. [22] There were no policy considerations to limit the City’s duty of care because the City’s misrepresentations did not involve core policy decisions. The City’s incomplete and inaccurate representations about the contents of the easement were negligent. The trial judge also found that Charlesfort reasonably relied on the City’s representations. Charlesfort’s principal expected that the City would inform him of any serious issues affecting the rezoning application. It was also reasonable for Charlesfort not to retain its own engineer to investigate the property or assist with the rezoning application. If Charlesfort had known about the water main in 2005, it would not have waived the conditions on the purchase of the property, and it would have found another site to build the Continental. The trial judge found that Charlesfort suffered nearly $4.5 million in damages and pre-judgment interest as a result of the City’s negligence, made up of increased development costs, lost revenue, and lost interest. D. Issues [23] The appellant City submits that the trial judge made three errors: 1. The trial judge erred in holding that the City owed Charlesfort a duty of care; 2. The trial judge erred in finding that Charlesfort relied on the City’s misrepresentation; and 3. The trial judge erred in varying the rate of pre-judgment interest that Charlesfort was entitled to. E. Discussion (1) Did the City owe a duty of care to Charlesfort? [24] The City submits that the trial judge erred by failing to apply the correct test for proximity in a case of pure economic loss arising from negligent misrepresentation. She further erred in failing to consider the purpose of any representation provided by the City. In processing Charlesfort’s rezoning application, the City was discharging a statutory duty, which does not give rise to a private law duty of care. Even if the City had undertaken to rezone the property in accordance with the Planning Act , R.S.O. 1990, c. P.13, Charlesfort was not entitled to rely on the City’s silence for the purpose of assuring itself that the project could proceed as planned and was viable prior to completing its real estate transaction. [25] Charlesfort submits that the trial judge correctly applied the proximity test, consistent with Livent . The trial judge also identified the purpose of the undertaking. The City, in receiving its fee and Charlesfort’s rezoning application including its plans to build the parking garage up to the lot lines, undertook to take reasonable care to provide Charlesfort with accurate information about infrastructure in the adjacent easement that was materially relevant to the proposed redevelopment. The purpose was to further the interests of both parties in knowing whether the proposed redevelopment could proceed as proposed by Charlesfort. Given this purpose, the type of economic loss suffered by Charlesfort was reasonably foreseeable. (a) Legal principles (i) Proximity under the Anns/Cooper test [26] Until recently, the analysis of whether there is a novel duty of care was governed by the Anns/Cooper test. That test, however, has been refined by the Supreme Court in Livent and 16688782 Ontario Inc. v. Maple Leaf Foods Inc ., 2020 SCC 35, 450 D.L.R. (4th) 181. It will be useful to review this development briefly. [27] The Anns/Cooper test sets out two stages for establishing a novel duty of care. The first stage requires the establishment of a prima facie duty of care through the application of a proximity and foreseeability analysis. The second stage asks whether there are policy reasons for why a duty of care should not be recognized: Cooper , at para. 30. [28] As the majority of the Supreme Court explained in Livent , at para. 16, the legal principles have evolved since Anns . Under that test, a prima facie duty of care would arise where injury to the plaintiff was a reasonably foreseeable consequence of the defendant’s negligence, and where present, the relationship was labelled as one of “proximity”: Livent , para 20. [29] It was Cooper that recognized that foreseeability alone is insufficient to establish a prima facie duty of care. Rather, the court must also undertake a proximity analysis: Cooper , at paras. 22, 29 and 31. This analysis considers whether the parties are in such a “close and direct” relationship that it would be “just and fair having regard to that relationship to impose a duty of care in law”: Cooper , at paras. 32, 34; Livent , at para. 25. [30] In Livent , at para. 29, the court held that where an established proximate relationship cannot be found, courts must undertake a full proximity analysis: To determine whether the “‘close and direct’ relationship which is the hallmark of the common law duty of care” exists, courts must examine all relevant “factors arising from the relationship between the plaintiff and the defendant”. While these factors are diverse and depend on the circumstances of each case, this Court has maintained that they include “expectations, representations, reliance, and the property or other interests involved” as well as any statutory obligations. [Citations omitted. Emphasis in original.] [31] In the case of pure economic loss arising from negligent misrepresentation or the performance of a service, two factors are determinative in the proximity analysis: the defendant’s undertaking and the plaintiff’s reliance. A relationship of proximity is formed when the defendant undertakes to provide a representation or service in circumstances that invite reasonable reliance by the plaintiff, as the defendant becomes obligated to take reasonable care and the plaintiff has a right to rely on the defendant’s undertaking to do so: Livent , at para. 30; Maple Leaf , at para. 32. [32] However, any reliance on the part of the plaintiff that falls beyond the scope of the defendant’s undertaking of responsibility necessarily falls outside the scope of the proximate relationship and, therefore, of the defendant’s duty of care: Livent , at para. 31. The purpose for which the representation was made or the service undertaken is key to the determination of the scope of the duty of care. As the court noted, at para. 31: By assessing all relevant factors arising from the relationship between the parties, the proximity analysis not only determines the existence of a relationship of proximity, but also delineates the scope of the rights and duties which flow from that relationship. In short, it furnishes not only a “principled basis upon which to draw the line between those to whom the duty is owed and those to whom it is not”, but also a principled delineation of the scope of such duty, based upon the purpose for which the defendant undertakes responsibility. [Citation omitted. Emphasis in original.] [33] In Livent, at para. 24, the court also observed that in cases involving negligent misrepresentation or performance of a service, the proximity analysis will be more usefully considered before the foreseeability analysis. That is because, as the court notes, at para. 34, and as will be seen from the discussion below, the factors applied in the proximity analysis will inform the foreseeability inquiry: [T]he purpose underlying that undertaking and that corresponding reliance limits the type of injury which could be reasonably foreseen to result from the defendant’s negligence. [Emphasis added.] [34] The most recent Supreme Court decision which addresses the proximity analysis in a duty of care determination involving negligent misrepresentation is Maple Leaf . In Maple Leaf , Mr. Sub franchisees sued Maple Leaf Foods for the lost profits and other economic loss they sustained when they experienced a shortage of product after Maple Leaf Foods recalled meat products due to a listeria outbreak at a Maple Leaf Foods factory. The majority began its analysis by noting that the franchisees were making claims for pure economic loss, observing that tort law has historically been concerned mainly with negligent interference with or injury to rights in bodily integrity, mental health and property, which explains why the common law has been slow to accord protection to pure economic loss. [35] The Mr. Sub franchisees claimed that Maple Leaf Foods undertook to provide ready-to-eat meats fit for human consumption. In support of their allegation, they relied on Maple Leaf’s reputation for product quality and safety, and its public motto “We Take Care”. The majority held that there was no proximate relationship between Maple Leaf Foods and the Mr. Sub franchisees. The purpose and scope of Maple Leaf Foods’ undertaking was to ensure that Mr. Sub customers who ate the meats would not become ill or die. Properly construed, the undertaking was made to consumers with the purpose of reassuring them that their interests were being kept in mind, and not made to “commercial intermediaries” such as Mr. Sub or its franchisees. The business interests of the franchisees lay outside the scope and purpose of the undertaking. [36] This decision is important to the present appeal for a few reasons. First, it held that correctness is the standard of review applicable to the determination of the existence of a duty of care between the plaintiff and the defendant: at para. 24. Second, it affirmed Cooper and Livent , both of which emphasized the importance of proximity in the duty of care analysis, at para. 33: Taking Cooper and Livent together, then, this Court has emphasized the requirement of proximity within the duty analysis, and has tied that requirement in cases of negligent misrepresentation or performance of a service to the defendant’s undertaking of responsibility and its inducement of reasonable and detrimental reliance in the plaintiff. [37] Third, Maple Leaf confirmed that undertakings are not to be treated as given at large. A court must consider whether the undertaking is made to the plaintiff and for what purpose: at paras. 35, 38. Further, when a defendant undertakes to do something, they assume the task of doing so reasonably, which manifests an intention to induce the plaintiff’s reliance: at para. 33. As Maple Leaf explains, at para. 34, it is the “intended effect” of the defendant’s undertaking upon the plaintiff’s autonomy that brings the defendant into a relationship of proximity: Where that effect works to the plaintiff’s detriment, it is a wrong to the plaintiff. Having deliberately solicited the plaintiff’s reliance as a reasonable response, the defendant cannot in justice disclaim responsibility for any economic loss that the plaintiff can show was caused by such reliance. The plaintiff’s pre-reliance circumstance has become “an entitlement that runs against the defendant”. [Citation omitted. Emphasis added.] [38] The plaintiff’s entitlement to rely operates only so far as the undertaking goes. Any reliance which falls outside of the purpose for which the representation was made or the service was undertaken necessarily falls outside the scope of the proximate relationship and therefore, of the duty of care. Citing Livent , the majority stated that “[t]his ‘end and aim’ rule precludes imposing liability upon a defendant for loss arising where the plaintiff’s reliance falls outside the purpose of the defendant’s undertaking”: at para. 35. (ii) Reasonable foreseeability [39] The second part of the prima facie duty of care analysis requires considering reasonable foreseeability. The question is whether an injury to the plaintiff was a reasonably foreseeable consequence of the defendant’s negligence: Livent , at para. 32. [40] An injury to the plaintiff will be reasonably foreseeable if the defendant should have reasonably foreseen that the plaintiff would rely on their representation and such reliance would be reasonable. The reasonable foreseeability and the reasonableness of the plaintiff’s reliance is determined by the proximate relationship between the parties. A plaintiff only has a right to rely on a defendant to act with reasonable care for the particular purpose of the defendant’s undertaking, and in such situations, the plaintiff’s reliance is both reasonable and reasonably foreseeable. Reliance by the plaintiff for any other purpose would fall outside the scope of the defendant’s undertaking, and any consequential injury would not be reasonably foreseeable: Livent , at para. 35. (iii) Claims against government bodies [41] In addition, this is a claim against a government body. There are generally two situations that may create a prima facie duty of care in claims against a government defendant: where a duty of care arises from the statutory scheme or where a duty of care arises from interactions between the plaintiff and the government and is not negated by statute: R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 43. Proximity might also be based both on the government’s statutory duties and interactions between the parties: at para. 46. [42] In the first situation, it “may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care”: Imperial Tobacco , at para. 44. Often, statutes “are aimed at public goods” and it may be “difficult to infer that the legislature intended to create private law tort duties to claimants”: at para. 44. (b) Analysis (i) Proximity [43] With respect, the trial judge erred in concluding that the City of Ottawa owed a duty of care to Charlesfort as claimed. While she correctly cited the applicable test from Livent , she erred in failing to consider adequately the scope and purpose of the undertaking that she found had been “implicitly” made. She did not have the advantage of Maple Leaf which has added clarity to the importance of the “undertaking” analysis in the course of considering whether the parties were in a sufficiently proximate relationship to ground a prima facie duty of care. [44] The trial judge began her proximity analysis with the question of whether the parties had a sufficiently close and direct relationship to ground a prima facie duty of care. She went on to say that this required a consideration of the expectations, representations, reliance, interests, and statutory obligations of the parties in the course of the rezoning application process and cited a number of factors that led her to conclude that they were in such a relationship. [45] These included the fact that the City’s rezoning application processing service was provided for a fee, the statutory scheme placed the onus on the municipality to obtain information on the proposed rezoning, the City’s practice of giving notice permitted it to identify existing infrastructure that could have an impact on construction, and the City had to consider whether the developer had plans to provide adequate parking and that its plan was “broadly feasible”. She also pointed to the Provincial Policy Statement issued pursuant to the Planning Act which provided that the City should avoid development that would create risks to public health and safety or to critical infrastructure. Any breach of the water main would be a serious risk to health and safety and critical infrastructure, and she noted that the City knew all along that the plan included a two-storey underground parking garage extending right up to the northern lot line where the easement was located. Both parties had an interest in knowing whether the development could proceed as planned in the course of the rezoning process. [46] The trial judge also found that both parties expected that any information that the City obtained would be shared with Charlesfort, and the City planner assigned to Charlesfort’s rezoning application acknowledged that the City generally provided all the comments it received, even when not directly related to the rezoning. She also found that developers generally rely on information received from City planners. She concluded that the parties had a sufficiently close and direct relationship based on these factors. On receipt of the rezoning application and fee, the City at the very least undertook to transmit the comments it obtained during the circulation process to Charlesfort. Stating that the proximity analysis must inform the scope of the duty of care, she found that “the narrow scope proposed by the City does not do so”. Ultimately, she found that the City implicitly undertook to tell Charlesfort about the existence, location, and size of municipal structure such as the water main and to advise whether it played a critical role in the municipal water supply and whether the City had any knowledge of its condition. [47] The trial judge’s central error was her analysis of the City’s undertaking. In finding that the undertakings were “implicit” she avoided analyzing whether the City manifested an intention to induce, or deliberately solicited, Charlesfort’s reliance, as well as the purpose and scope of any such undertaking. These, as Maple Leaf made clear, are critical aspects of the proximity analysis. Maple Leaf emphasized that it is the intended effect of the defendant’s undertaking that brings the defendant into a relationship of proximity and duty with the plaintiff, and it affirmed that the purpose of any undertaking limits the scope of the plaintiff’s entitlement to rely. [48] With respect, I do not agree that the City made an undertaking to Charlesfort in the course of the rezoning application to provide Charlesfort with accurate information about municipal infrastructure in adjacent property that was materially relevant to the proposed redevelopment. Moreover, I do not agree that Charlesfort can be said to have reasonably relied on any such representation. In support of finding this implicit undertaking, the trial judge pointed to the City’s obligations under statute and other policy instruments, the City’s powers, abilities, and access to information during the rezoning process, and the typical practices and expectations of the parties. These factors do not indicate that the City intended to induce Charlesfort to rely on the City’s representations about municipal infrastructure during the rezoning process. They merely describe the respective positions and knowledge of the parties during the rezoning process. [49] The trial judge’s finding that the City’s undertakings were “implicit” laid the groundwork for this error. While I would stop short of saying that an undertaking can never be implicit, it is much more difficult to properly consider the existence and the purpose and scope of an implicit undertaking than an explicit one. This is partly because in considering the scope of the undertaking, it is necessary, as Maple Leaf illustrates, to determine who the intended beneficiaries of any undertakings are. [50] In my view, to the extent that the City made any undertaking to Charlesfort when it accepted the fee and Charlesfort’s application, in the sense that the City intentionally induced or deliberately solicited Charlesfort’s reliance, that undertaking was to process the rezoning application and to take the appropriate considerations into account in so doing. Any representations made by the City must be considered in the context and purpose of the rezoning process in which they were made. Even where an undertaking exists, there is a need to consider the purpose of the undertaking and whether the plaintiff’s reliance fell within or outside the purpose of the defendant’s undertaking of responsibility. These are the determinative factors in establishing a prima facie duty of care in cases of negligent misrepresentation. [51] This point is illustrated by Maple Leaf . There was no question that Maple Leaf Foods had made representations about the quality and safety of its meat products to consumers. That did not mean that Mr. Sub was in a relationship of proximity with Maple Leaf Foods such that it could reasonably rely on a representation or undertaking made to consumers. This is because the undertaking was made for the purpose of reassuring consumers that they would not become ill or die from their meat, and not for the purpose of protecting franchisees such as plaintiffs from pure economic loss. [52] Similarly, Charlesfort essentially submits that the purpose of any undertaking by the City included assessing the viability of the condominium project and protecting Charlesfort’s economic interests in being able to build the project as planned. I disagree. The scope and purpose of the City’s undertaking to process Charlesfort’s rezoning application was limited to fulfilling its statutory duty and acting in the public interest in doing so, for a number of reasons. [53] First, “[z]oning is about regulating land use in the public interest and is the expression of public policy in land use areas”: Ian Rogers, Alison Butler and Greg Levine, Canadian Law of Planning and Zoning , 2nd ed. (Toronto: Thomson Reuters Canada Limited, 2021), at s. 4.2. It enables local governments, like municipalities, to control the use of land by depriving property owners of certain uses of property for the public good. The public interest purpose of zoning does not suggest that the City was guaranteeing or had Charlesfort’s economic interests in mind when it undertook to process the rezoning application. [54] Second, the statutory scheme and other policy instruments reflect the public interest focus of zoning decisions. The Planning Act , which authorizes municipalities to pass zoning by-laws, requires that planning officials, in exercising authority that affects a planning matter, “have regard to” policy statements issued under s. 3(1) of the Planning Act . The 1997 Provincial Policy Statement, which governed at the time the rezoning took place, identified a number of key provincial interests related to land use planning and development. These included wise use and protection of Ontario’s resources, protecting the long-term health and safety of Ontario’s population, and the financial and economic well-being of Ontario and municipalities. The City also had several official plans it considered to be relevant, and these official plans included objectives and policies such as encouraging denser residential development in urban areas, compatibility with existing neighbourhoods, and promoting growth that facilitated the use of public transit. [55] It is clear from the Planning Act , the Provincial Policy Statement, and the City’s official plans that land use planning and restrictive zoning target the protection of the public and good management of land resources. These are public goals. The trial judge identified several issues the City should have been aware of during the rezoning process based on these instruments, including risks to public health, safety, and critical infrastructure, and adequate parking. These again are public interests, concerned with public health, infrastructure that serves the public, and ensuring that local traffic flow is not impeded. [56] This court was not referred to anything in any of the statutes or other instruments relating to planning that creates a duty to protect developers from pure economic loss. Nothing in the legislative framework suggests that the legislature intended that the exercise of zoning powers alone should also give rise to a private law duty to developers. The observation in Imperial Tobacco , at para. 44, that it may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care, applies in this case: However, more often, statutes are aimed at public goods, like regulating an industry, or removing children from harmful environments. In such cases, it may be difficult to infer that the legislature intended to create private law tort duties to claimants. [Citations omitted.] [57] Third, the scope and purpose of the undertaking in this case also must consider the nature of the process. This was a rezoning application. There were still a number of steps that the developer had to complete before construction, including the site plan approval process, during which the City could impose conditions to an approval, and permit approvals. The only goal at the rezoning stage was to determine whether a site-specific by-law should be granted as sought by Charlesfort’s rezoning application. Even though Charlesfort paid a fee for the rezoning application and a site-specific zoning by-law was eventually passed, there is no basis in the record to support the inference that the City was intending to undertake that the ultimate project would be built or would be as profitable for Charlesfort as it had initially anticipated. Such a result could, in effect, render municipalities insurers of developers’ profits. It would, in other words, create a potentially limitless liability. [58] Fourth, there was nothing that made the relationship between the appellant and the respondent unique. The trial judge found that the City never asked Charlesfort to investigate what the easement contained during the zoning process. She also found that developers applying for site-specific rezoning generally rely on the information provided by City planners. While I would not interfere with these findings, I would not infer from these factors that the City invited Charlesfort to rely on anything beyond the purpose and scope of the rezoning application. [59] As the trial judge also found, the parties met and communicated with one another, and the City shared comments it received from the circulation process. In my view, this was done not to induce Charlesfort to rely on the City’s undertaking to review its rezoning application and anything resulting from the process as assurance about its economic interests or that it could proceed with its development as planned. Rather, this was done to further the purpose of the City fulfilling its statutory obligations and acting in accordance with the public interest. Sharing and receiving information as was the City’s practice may be seen to increase transparency among various interested parties and allowed the City to determine the best way to protect and advance the public interest within the planning and zoning framework. There were no interactions between the parties that went beyond regular interactions required to process a rezoning application. [60] In summary, there is no relationship of proximity in this case. Charlesfort has not established that the City made any representations or undertakings whose purpose or scope included assuring Charlesfort that its condominium project as planned would be viable or protecting Charlesfort from pure economic loss, such that Charlesfort was induced to rely and suffered economic detriment as a consequence. (ii) Reasonable Foreseeability [61] Although it is not strictly necessary to consider reasonable foreseeability given the conclusion on the proximity analysis, it is useful to do so as it illustrates the effect of the proximity analysis on the subsequent reasonable foreseeability analysis. [62] The trial judge pointed to the fact that no one at the City ever suggested to Charlesfort that it should retain an engineer to investigate the infrastructure in the property or adjacent property. Because the City knew that Charlesfort was seeking rezoning for the purpose of building a 15-storey condominium tower with a two-storey underground garage that extended right up to the northern lot line, she found that it was foreseeable that if the City failed to inform Charlesfort about a feature in the property or adjacent property that would prevent it from building the parking garage as planned, this would cause damage to Charlesfort in the form of increased construction costs, lost profits and delay costs. [63] As I have discussed, there was no undertaking from the City that had the purpose of ensuring the viability of constructing the condominium and parking garage as planned or maintaining a particular level of profitability which was intended to induce Charlesfort’s reliance in the course of the rezoning application and process. For that reason, there can be no reasonable foreseeability of any reliance upon such an undertaking. This conclusion on reasonable foreseeability illustrates the significance of the analysis of the purpose of an undertaking as emphasized in Livent and Maple Leaf and its constraining effect on what can be reasonably foreseeable: Livent , at para. 35. (iii) Conclusion on duty of care [64] Charlesfort has not established a prima facie duty of care. There is no need to proceed to the second stage of Anns/Cooper to determine whether any residual policy reasons negate the imposition of a duty of care. [65] As I have concluded that the City did not owe Charlesfort a duty of care during the rezoning process such that the City can be held liable for Charlesfort’s pure economic losses, there is also no need to consider the other grounds of appeal raised by the City. F. Disposition and Costs [66] For these reasons, the appeal is allowed and Charlesfort’s claim is dismissed. If the parties are unable to agree on costs, they may make written submissions on costs of the appeal and costs below, not to exceed 5 pages, the appellant City to file within 10 days of this decision, and the respondent Charlesfort to file 5 days after. Released: June 11, 2021 “D.D.” “A. Harvison Young J.A.” “I agree Doherty J.A.” “I agree I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Eynon v. Simplicity Air Ltd., 2021 ONCA 409 DATE: 20210611 DOCKET: C67876 Juriansz, van Rensburg and Sossin JJ.A. BETWEEN Daniel Eynon Plaintiff (Respondent) and Simplicity Air Ltd. Defendant (Appellant) Cynthia B. Kuehl, James Scarfone and Jacob Sazio, for the appellant R. Paul Hosack and Peter Karsten, for the respondent Heard: May 3, 2021 by video conference On appeal from the judgment of Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury, dated December 6, 2019. REASONS FOR DECISION A. overview [1] This is an appeal from a jury award of punitive damages. The respondent sued the appellant for injuries he suffered in the workplace on December 12, 2014. [2] After being challenged by a colleague, the respondent climbed a 14-foot-high chain hoist. As he descended, he caught the crotch of his pants on a hook near the bottom of the chain and another hook pierced his scrotum. That evening the respondent had surgery at the Brantford General Hospital, which involved a debridement of his scrotum and repair of lacerations to his penis and scrotum. The respondent testified the accident occurred while he was engaged in “horseplay”. The WSIB determined he was not entitled to benefits after deciding the accident did not take place in the course of his employment. [3] The jury assessed the respondent’s general damages in the amount of $75,000 and his damages for lost wages at $9000. The jury found these amounts should be reduced by 75 percent for the respondent’s contributory negligence in causing his injuries. This reduced the amount of general damages to $18,750 and the wage loss to $2,250. The jury also assessed punitive damages against the employer in the amount of $150,000. The jury was not asked and did not provide any indication of the basis for its award of punitive damages. The jury did, however, provide a brief explanation of the appellant’s role in causing or contributing to the respondent’s injuries. It said, “The [appellant] demonstrated a serious lack of proper safety training, documentation, as well as creating a culture within the company whereby employees failed to place adequate importance on best safety practices.” [4] At trial the respondent testified that the appellant provided him with no safety training, no WHMIS training, and assigned him to drive a forklift without proper certification. The respondent also testified that throughout his employment the appellant failed to properly train him for the dangerous tasks he was required to perform. Further, the respondent said on the day of the accident there was no supervisor on the floor. He claimed he had not been trained to operate the chain hoist, so he did not know climbing it was dangerous. [5] The appellant’s witnesses contested the respondent’s evidence that he did not receive safety training and testified he was not trained on the chain hoist because he was not authorized to use it. [6] The evidence most pertinent to punitive damages relates to what occurred in the one-hour period between the time of the accident and the respondent’s arrival at the hospital. In his instructions to the jury on punitive damages, the trial judge highlighted only the evidence of this period. [7] After the accident, the respondent said he screamed in pain and asked that an ambulance be called. When a supervisor, Gary, came into the shop, the respondent said Gary laughed at him. When he tried to show Gary his injury, the respondent claimed Gary refused to look at it. According to the respondent, Gary refused to call him an ambulance and instead drove the respondent to the second shop location to talk with Doug, the service manager and the respondent’s direct supervisor. Doug first said they would arrange someone to drive the respondent home to Simcoe and they would get his car home for him. The respondent refused to be taken to Simcoe after calling his father who told him to insist they take him to a hospital. Before departing for the Brantford hospital, the respondent claimed that Doug told him to say, “this happened at home”. The respondent testified that on the way to the hospital Gary also told him to say the injury happened at home. When they arrived at the hospital, Gary dropped the respondent at the entrance and did not accompany him inside. The respondent denied that Gary had offered to take him into the hospital. [8] Gary and other witnesses for the appellant offered a different version of events. Gary admitted he laughed when he first saw the respondent stuck on the chain lift because he thought he had just hooked his jeans. Gary denied the respondent asked for an ambulance and said there was no reason to call an ambulance based on the respondent’s demeanour. Gary said he asked to see the injury but did not insist when the respondent refused to show him. Gary and Doug both denied telling the respondent to say the injury occurred at home. Doug testified he asked an employee to drive the respondent home before he had talked to the respondent. After learning the respondent wanted to go to the hospital the only discussion was whether they would take him to Cambridge or Brantford. They decided Gary would take the respondent to Brantford General Hospital. Gary said the respondent told him not to come inside the hospital with him because his father was on his way. B. Issues [9] The appellant submits that the punitive damages award should be set aside because a) punitive damages should not have been left with the jury, b) the trial judge erred in his instructions on punitive damages and should have provided a range for the quantum of punitive damages, and c) the employer should not be liable for punitive damages for the conduct of its employees. [10] Alternatively, the appellant submits that the punitive damages award should be reduced because a) the quantum is plainly unreasonable and unjust, and b) any punitive damages award should be reduced by the respondent’s contributory negligence. C. Analysis (a) The issue of punitive damages was properly left with the jury [11] The trial judge properly told the jury they could award punitive damages “if the wrongful acts of the [appellant] toward [the respondent] were outrageous or reprehensible and offensive to ordinary standards of decent conduct in the community.” He told them: 1) that an award of punitive damages was very much the exception; 2) that such damages should be awarded only if there has been “high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”; 3) that the purpose of punitive damages is to deter similar misconduct in the future rather than provide compensation to the plaintiff; and 4) that punitive damages are generally given only when “misconduct would otherwise be unpunished or when other penalties suffered by the defendant are unlikely to adequately achieve the objectives of retribution, deterrence, and denunciation, which are normally the preserve of the criminal law”. He also told the jury that punitive damages should only be awarded in an amount that was no greater than necessary to rationally accomplish their purpose. The trial judge identified aspects of the defendant’s conduct that were relevant to the claim for punitive damages, as well as the evidence of the defendant’s witnesses denying or explaining that conduct. The trial judge referred to the factors relevant to the determination of a proportionate amount of punitive damages. [12] There was sufficient evidence that a properly instructed jury, acting reasonably, could have awarded punitive damages. The supervisors’ instructions to an injured employee to falsely report that he was injured at home, without more, warranted an award of punitive damages. The jury could properly regard these instructions as misconduct offensive to ordinary standards of decent conduct expected of an employer and could be properly described as highly reprehensible. Such instructions contravene s. 22.1 of the Workplace Safety and Insurance Act , 1997, S.O. 1997, c. 16, Sched. A. (“WSIA”), and constitute an offence under s. 155.1 of WSIA. Had the appellant been prosecuted and a penalty imposed under s. 158(1) of WSIA the need for punitive damages would have been lessened: see Whiten v. Pilot Insurance Co . , 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 123. (b) There was no error in the trial judge’s instructions on punitive damages [13] The appellant recognizes that the trial judge cited the boilerplate punitive damages elements listed in Whiten , but submits he failed to give the jury guidance on how to apply those elements to the facts of this case. We disagree. [14] The trial judge’s instructions, summarized above, adequately equipped the jury to assess the appellant’s conduct. The appellant’s reliance on Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co . (2002), 61 O.R. (3d) 481, leave to appeal refused, [2002] S.C.C.A. No. 488, a breach of contract case, is misplaced as no independent actionable wrong was required in this tort case: Whiten , at para. 149, per LeBel J. (dissenting, but not on this point). [15] The appellant also submits that the trial judge erred by failing to provide any guidance on what an appropriate range for punitive damages would be. The appellant argues the failure to provide such guidance invites disproportionate awards. [16] Absent the agreement of counsel on a range for punitive damages, it would have been improper for the trial judge to suggest one to the jury. We note that the appellant’s trial counsel did not ask for the jury to be given guidance on a range of punitive damages, nor did he provide one to the jury himself in closing submissions, despite confirming with the trial judge that he would be permitted to do so. We do agree it would have been preferable for the trial judge to have asked the jury to briefly indicate the basis for their award of punitive damages as he had asked them to indicate the basis for their award of general damages. (c) The appellant is liable for punitive damages resulting from the conduct of its employees [17] The appellant advanced the proposition that an award of punitive damages had to be based on its own conduct and could not be based on the conduct of its employees (in this case the supervisors Gary and Doug). The appellant relied on this court’s decision in Boucher v. Wal-Mart Canada Corp . , 2014 ONCA 419, 120 O.R. (3d) 481, where Laskin J.A. distinguished between “reprehensible conduct specifically referable to the employer” and the conduct of its supervisor: at para. 82. The employer and the supervisor were both defendants in Boucher and the damage awards against each were discussed separately. The problem in that case was that the trial judge invited the jury to base its award of punitive damages against Wal-Mart on its vicarious liability for an independent actionable wrong that was committed by its employee – the intentional infliction of mental suffering (and in respect of which the employee defendant was found liable for $100,000 in damages). Laskin J.A. commented that this wrong was never tied by the trial judge to Wal-Mart’s own conduct in failing to enforce its workplace policies. After considering that conduct, he concluded that Wal-Mart’s own conduct warranted an award of punitive damages, but he reduced the punitive damages awarded by the jury after considering the significant compensatory amounts awarded, including aggravated damages, and the fact that Wal-Mart was vicariously liable for the amounts awarded against its employee. [18] In the present case, by contrast, only the employer was named as a defendant. There was no obligation to find an “independent actionable wrong”, and the conduct of Gary and Doug occurred in the course of their employment as the respondent’s supervisors who had been left in charge of the workplace in the absence of the appellant’s owners. There was no question that the conduct of the supervisors was the conduct of their employer, the appellant. Moreover, the actions of Gary and Doug occurred within what the jury had determined was “a culture within the company whereby employees failed to place adequate importance on best safety practices”. Accordingly, we do not give effect to the argument that the award of punitive damages against the appellant was unwarranted because the focus was on the misconduct of its supervisory personnel. (d) The quantum of the award is not irrational and inordinately large [19] The appellant properly points out that a less deferential standard applies to appellate review of jury awards of punitive damages than to jury awards of general damages: Rutman v. Rabinowitz , 2018 ONCA 80, 420 D.L.R. (4th) 310, at paras. 56-58. Appellate review of a jury award of punitive damages furthers the coherence of the administration of justice by ensuring that the award serves a rational purpose. However, in order to interfere with a jury punitive damages award, the reviewing court must regard the award, when added to the compensatory damages, to be so “inordinately large” that it exceeds what is rationally required to punish the defendant: Rutman , at para. 58; Whiten , at paras. 109, 128. [20] In this case, we are not persuaded the jury’s award of punitive damages is so inordinately large that it exceeds what is rationally required to punish the appellant. As noted, the evidence was that the appellant had not been penalized in another forum for instructing the respondent to falsely report the accident happened at home. The jury could properly regard this conduct as sufficiently illegal and reprehensible to warrant an award of this magnitude to deter similar misconduct in the future. [21] This is one of those exceptional cases in which the relationship between the punitive damages award and the general damages award is weak. In this case, the trial judge’s instructions premised the punitive damages award on the appellant’s conduct after the accident and not on its negligence which contributed to the accident. In that sense, the punitive and general damage awards had separate bases. The focus of the award of punitive damages was on the appellant’s misconduct in the context of the surrounding circumstances, and not on the circumstances leading to the respondent’s injury. This is however entirely proper. Punitive damages are awarded to sanction a defendant’s misconduct, and not to compensate a plaintiff: see Whiten , at paras. 94, 127. (e) The punitive damages award should not be reduced by contributory negligence [22] In awarding punitive damages, the jury was instructed to consider the supervisors’ conduct after the accident. The respondent’s contributory negligence leading to the accident was properly not part of the determination of whether punitive damages were warranted. There is no basis for reducing the punitive damages award based on contributory negligence. D. Conclusion [23] The appeal is dismissed. The parties have agreed on costs. “R.G. Juriansz J.A.” “K. van Rensburg J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Fuller, 2021 ONCA 411 DATE: 20210611 DOCKET: C68362 Benotto, Trotter and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Sara Fuller Appellant Sara Fuller in person Breana Vandebeek, as duty counsel Tanit Gilliam, for the respondent Heard: June 8, 2021 by video conference On appeal from the conviction entered on January 22, 2020 by Justice Jonathan C. George of the Superior Court of Justice. REASONS FOR DECISION [1] Ms. Fuller appeals from her convictions on five counts of possession of drugs for the purpose of trafficking. [2] The drugs were found in a basement apartment rented by the appellant after the police executed a search warrant for the residence as a whole. At the time, the police were looking for goods stolen during a break and enter robbery at another residence that had occurred a couple of months earlier. [3] With respect to that break-in, a witness had observed a black Ford Explorer outside the residence. A male came out of the Ford Explorer and broke into the residence by kicking in the front door. The witness took a picture of the Ford Explorer. The break-in occurred on August 17, 2018. A number of items were taken from the residence, including a jewellery box, various different sets of earrings, and a ring. [4] When the police began their investigation into the break-in, they discovered that the Ford Explorer had stolen licence plates affixed to the vehicle. A couple of weeks later, the same vehicle was observed at a gas station where gas was put into the vehicle and then the vehicle left without paying. [5] On October 17, 2018, the police located the Ford Explorer at a residence. The vehicle was still at this address the next day. The police began the process to obtain a search warrant for that residence. However, after obtaining the search warrant, but before executing on it, the police discovered that the Ford Explorer was no longer at the residence. Rather, the next day, on October 19, the police located the Ford Explorer at a second residence, this being the residence where the appellant leased the basement apartment. [6] The police obtained another search warrant for this second residence. The Ford Explorer, still bearing the stolen licence plates, was parked outside. The police executed the search warrant. In the process of the search, drugs were found in the basement apartment. [7] The appellant challenged the issuance of the search warrant for the second residence. She submitted that there were insufficient grounds for its issuance. In particular, the appellant submitted that there was an insufficient basis to believe that the stolen goods would still be in the possession of the individuals who committed the break-in, two months after it had occurred and that there was an insufficient connection between the vehicle and the residence. [8] The trial judge disagreed. While he said that he might have reached a different conclusion than the Justice of the Peace who issued the search warrant, he correctly stated that that is not the test. The trial judge found that there was enough information contained in the Information to Obtain to justify the issuance of the search warrant. In particular, he found that there was sufficient information for the police to form a reasonably grounded belief that the stolen goods would be found in the residence. As the trial judge said, “absolute certainty and definitive concrete knowledge is not what is required.” [9] The trial judge did not directly address the staleness argument. However, we do not accept that the passage of two months was sufficient to invoke that basis for undermining the search warrant. Given the nature of the stolen goods, there was no compelling reason to believe that the goods would have been disposed of within that time frame. As the British Columbia Court of Appeal observed in R. v. Ballendine , 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54: Merely because information is "dated" does not mean it is "stale". While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor. [10] The Information to Obtain set out a sufficient basis to believe that the stolen goods, or some of them, would still be in the possession of the person who committed the break-in. There was a direct connection between that person and the Ford Explorer. There is also a direct connection between the Ford Explorer and the residence, both from its presence in the driveway of the residence, and the presence of prior parking tickets for the vehicle, all related to the area in which the residence is located. Thus, it was open to the Justice of the Peace to conclude that there were sufficient grounds for the search warrant to issue for the residence in question. We do not see any error in that conclusion or in the trial judge’s conclusion upholding its issuance. [11] In terms of the trial proper, the main objection raised by the appellant is the trial judge’s reference to the failure of the appellant to testify at the trial. While it would have been preferable if the trial judge had not engaged in that discussion, we are not satisfied that it constitutes an error that undermines the ultimate conclusion he reached regarding the guilt of the appellant. The trial judge identified the various pieces of evidence that would establish possession of the drugs by the appellant. His reference to the appellant’s failure to testify, in this circumstantial case, was only intended to demonstrate that there was no evidence that would establish a reasonable inference other than guilt, as discussed in R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000. [12] The appeal is dismissed. “M.L. Benotto J.A.” “Gary Trotter J.A.” “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. Rose, 2021 ONCA 408 DATE: 20210611 DOCKET: C66594 Juriansz, Jamal and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Alexander Rose Appellant K.Y. Tina Yuen, for the appellant Avene Derwa, for the respondent Heard: December 11, 2020 by video conference On appeal from the conviction entered on August 29, 2018 by Justice David L. Corbett of the Superior Court of Justice. Jamal J.A.: OVERVIEW [1] The appellant, Alexander Rose, appeals his conviction of sexual assault. The only issue at trial was consent. The appellant testified that his sexual encounter with the complainant was consensual, while the complainant testified that the appellant forced himself upon her. The case turned on credibility. [2] The trial judge determined that he “simply did not believe a word of what [the appellant] had to say where it differed from the complainant’s version of events.” He also concluded that the complainant’s version of events was “probably true” and that “probably the events happened as she described them”. But he highlighted certain issues with her evidence that led him to conclude it would be “unsafe” to base a conviction on her evidence alone. [3] Even so, the trial judge was convinced of the appellant’s guilt based on the complainant’s post-event demeanour as seen in about 30 minutes of video surveillance footage from the appellant’s condo building. The video footage showed the complainant in a highly distraught emotional condition just after the alleged assault. The trial judge found this post-event demeanour evidence “powerfully corroborative of the complainant’s evidence”. He ruled that “the corroboration provided by the video surveillance evidence [was] more than enough to satisfy [him] beyond a reasonable doubt of the truth of the complainant’s account of events.” [4] The appellant now appeals his conviction. He asserts that the trial judge erred in evaluating the complainant’s post-event demeanour, rendered an unreasonable verdict, and improperly assessed the evidence. For the reasons that follow, I would dismiss the appeal. BACKGROUND FACTS [5] The facts were largely uncontested, except on the key issue of consent. [6] In May 2016, the appellant, then aged 22, and the complainant, then aged 20, met at Yorkdale Mall in Toronto. The appellant was shopping with his friend Jordan for Jordan’s birthday. Jordan noticed the complainant in one of the stores and asked for her opinion on some shoes. The complainant then went shoe shopping with Jordan and the appellant. Before they parted, Jordan asked the complainant for her phone number and she gave it to him. [7] The complainant and Jordan texted each other over the next few days. A week later, the complainant invited Jordan to her place where they had consensual sex. Jordan then went to the airport to catch a flight to the Dominican Republic. When he returned a week later, he and the complainant arranged a date. They were to meet in Jordan’s area and would then go to a restaurant or bar. [8] On the evening of May 15, 2016, the complainant arrived at what she thought was Jordan’s condo building (it was actually the appellant’s condo). She was recorded on the condo building’s video surveillance camera as she waited for about 10 minutes in the downstairs lobby for Jordan to come down. When Jordan came down, he told her he had forgotten something, so they went upstairs to get it. The appellant was in the condo. He gave the complainant a rum and coke while Jordan went to the bedroom to get what he had forgotten. When Jordan returned, the three of them chatted and watched television. A few minutes later, Jordan and the complainant went to the bedroom and had consensual sex. [9] Jordan, who was naked, then left the bedroom and the appellant came in to look for something. The complainant was sitting on the bed, partially undressed with her chest exposed. The appellant then left and Jordan returned, still naked. The complainant said this happened a few times. She found this strange and told them it was weird. She testified that, after Jordan left again, the appellant approached her on the bed. The appellant complimented her breasts and told her he wanted to see them, to which she said, “No”. He then tried to reach down the top of her dress. She told him to stop and pushed his hand away. The complainant testified that at this point the appellant was effectively blocking her from getting up or going around him. [10] According to the complainant, the appellant remarked that she was shy and asked whether another drink would make her less shy. She said she guessed so. The appellant left the room to get more rum, returned, and refilled her drink. He then said, “Show me your dome skills”, a request for oral sex. She said no. The appellant then left the room again, returned with a condom, and put it on. He got on top of her and told her to “Relax. Relax”, and then said, “What’s the big deal? You have two good looking guys here”. She told him, “No. Like stop.” She tried to kick him off. But he held her hands down and penetrated her vagina. He asked her to turn around but she said “[n]o.” When her hands freed, she pushed him off her, and he left the room. [11] The complainant testified that Jordan then returned to the bedroom and told the complainant that she had just had a threesome. She felt insulted but said nothing . The appellant and Jordan then announced that they were going to a nightclub but did not invite the complainant. She got dressed and the three of them left the condo together. All three were videotaped by the condo video surveillance camera in the elevator as they went down. The complainant said goodbye to Jordan and gave him a hug. She did not say goodbye to the appellant. When they got downstairs, Jordan and the appellant showed the complainant the way to the lobby before going to the parking garage for their night out. The complainant then called an Uber, which arrived about 30 minutes later and took her home. The complainant was recorded by the condo video surveillance camera as she waited for the Uber in the lobby. [12] As the complainant waited in the lobby, she called her ex-boyfriend, J.F., but did not reach him. She also called two close friends, one of whom later testified that the complainant called him and told him that she had been raped by her date’s friend. That friend testified that the complainant sounded distraught and was crying throughout the roughly 30-minute conversation. [13] The complainant texted J.F., who also testified at trial, and asked him if he would defend her if someone tried to hurt her. The complainant and J.F. met and spoke about what the complainant alleged had happened. J.F. called the appellant and Jordan and spoke to them on speakerphone, in the complainant’s presence, accusing them of rape. J.F. testified that one person on the call was arrogant and laughing the whole thing off, while the other person was not and apologized. J.F. later had another call with the person who had apologized, who now claimed that he was innocent. Later the same day, the complainant went to a police station and made a police report against the appellant. [14] The appellant testified in his own defence but Jordan did not testify. The appellant claimed that the sex was consensual. He said that after Jordan left the room, he went to check on the complainant because she was a guest in his home and asked her if she wanted another drink. She said yes, so he went to get more rum. He said he returned, engaged in small talk with her, and leaned in to kiss her. He claimed she moaned and then moved back onto the bed. After a couple of minutes of touching and kissing, the appellant left to get a condom, returned, and engaged in what he asserted was consensual sex. He testified that the complainant’s body language was receptive throughout and that she never protested or told him to stop. The three then left the apartment and parted ways. The appellant and Jordan did not invite the complainant to the club with them and she said nothing about going with them. THE TRIAL DECISION [15] The trial judge did not believe the appellant’s testimony. He described the appellant’s testimony as “glib, often terse” and said it “failed utterly to convince [him] that he was providing a full and accurate account of what happened.” He said he “simply did not believe a word of what [the appellant] had to say where it differed from the complainant’s version of events”. [16] The trial judge further stated that although he had concluded that the complainant’s evidence was “probably true” and “probably the events happened as she described them”, there were issues with parts of her evidence that were “numerous and serious enough” that it would be “unsafe” to base a conviction on her evidence alone. The trial judge highlighted the following : (1) the complainant lied to the police in her initial interview about not sleeping with Jordan when he came over to her place, in the trial judge’s view because she may have been embarrassed or uncomfortable talking to an older male officer, though she later went back to the police to tell the truth; (2) the complainant lied at the preliminary inquiry about the telephone call between J.F. and the appellant and Jordan by saying that J.F. had told her about the call, when she was actually present with J.F. on speakerphone during the call; (3) the trial judge found the complainant was trying to enlist J.F. to “exact justice on her behalf, rather than going to the police”, an explanation that the trial judge accepted. He found this did not run against her credibility but made it more likely that she was telling the truth about what happened in the condo; and (4) the complainant testified that she was holding her drink during the sexual assault, which the trial judge found improbable. The trial judge found that the appellant took the drink from her when he forced himself on her. The trial judge noted that this sort of confusion in the precise sequence of events is not unusual for shocking events that happen quickly. [17] Despite these concerns, the trial judge declared that he “still believe[d] the complainant” and that he “still believe[d] that matters unfolded as she described.” He found she had no reason to lie about the assault. He rejected the defence theory that she had a motive to fabricate because Jordan and the appellant did not take her out to a club. He found her to be “emotionally resilient” and not so heavily invested in Jordan that she “would find her world shattered by his being rude to her or insensitive at the end of an evening.” [18] The trial judge also found the condo video footage “powerfully corroborative of the complainant’s evidence”. He found “the corroboration provided by the video surveillance evidence [was] more than enough to satisfy [him] beyond a reasonable doubt of the truth of the complainant’s account of events.” The footage covered three time periods: (1) the complainant waiting in the lobby for about 10 minutes as she arrived to see Jordan at the beginning of the evening; (2) the complainant, the appellant, and Jordan in the elevator as they left the condo after the alleged assault; and (3) the complainant as she waited in the lobby area for about 30 minutes after the alleged assault, during which she can be seen crying. [19] Applying the analysis in R. v. W.(D.) , [1991] 1 S.C.R. 742, the trial judge concluded that: (1) he did not believe the appellant’s evidence; (2) the appellant’s evidence did not leave him with a reasonable doubt as to the appellant’s guilt; and (3) the complainant’s evidence, combined with the video evidence, satisfied him of the appellant’s guilt beyond a reasonable doubt. ISSUES [20] The appellant raises three issues: 1. Did the trial judge err in evaluating the complainant’s post-event demeanour as recorded on the video footage? 2. Did the trial judge render an unreasonable verdict? 3. Did the trial judge improperly assess the evidence? DISCUSSION Issue #1: Did the trial judge err in evaluating the complainant’s post-event demeanour as recorded on the video footage? [21] The appellant’s first and principal ground of appeal asserts that the trial judge erred in evaluating the complainant’s post-event demeanour as recorded on the video footage. At trial and before this court, both parties agreed that the video footage — which contained no sound — was admissible. It was entered into evidence on consent, although each side asked the trial judge to draw different inferences from it. The Crown argued that the video evidence corroborated the complainant’s testimony, while the defence urged the alternative inference that the complainant was upset because she “regretted” having consensual sex with both men and felt “massively disrespected” by being left to go home alone. [22] Evidence of the post-event demeanour of a sexual assault complainant can be used as circumstantial evidence to corroborate the complainant’s version of events: R. v. J.A.A. , 2011 SCC 17, [2011] 1 S.C.R. 628, at paras. 40-41, per Rothstein J. (dissenting, but not on this point); R. v. Steele , 2021 ONCA 186, 154 O.R. (3d) 721, at paras. 54, 94, per van Rensburg J.A. (concurring); and R. v. Mugabo , 2017 ONCA 323, 348 C.C.C. (3d) 265, at para. 25. Such post-event demeanour evidence can be invoked by either side: it can assist the defence in raising a reasonable doubt on the issue of consent, or it can assist the Crown in proving non-consent: Steele , at para. 54; see also Lisa Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.J. 316, at pp. 328-29. [23] In Murphy v. The Queen , [1977] 2 S.C.R. 603, at pp. 612, Spence J. writing for the majority and the unanimous court on this point, explained how post-event demeanour evidence can assist the prosecution: Independent testimony of a rape complainant’s emotional condition is capable at law of corroboration where it is sufficiently damning that it may be considered by a jury to be more consistent with her denial of consent than with the existence of consent, or, to put it another way, where a reasonable inference can be drawn by a jury, considering all the circumstances, that there is a causal relationship between the assault and the complainant’s distraught emotional condition. [24] The appellant does not challenge these principles but asserts that the trial judge erred in applying them. He claims that the trial judge erred: (1) by making findings about the complainant’s post-event emotional state unsupported by the video footage and contradicted by the complainant’s testimony; and (2) in rejecting an alternative, innocent explanation for the complainant’s post-event demeanour. [25] I do not accept the appellant’s submissions. Although I agree with the appellant that some of the trial judge’s characterizations of the complainant’s demeanour on the video are exaggerated, he was entitled to find that the video footage corroborated the complainant’s denial of consent and was not reasonably consistent with the existence of consent. [26] The trial judge’s core conclusions about the complainant’s post-event emotional state are supported by the video footage and are not contradicted by the complainant’s testimony. The trial judge found that the video footage of the complainant in the lobby waiting for the Uber “shows a woman in a very different emotional state than the woman who entered the condominium some 90 minutes or so before.” That central finding is unassailable. As the trial judge found, when the complainant arrived she appeared “poised”, “confident” and was “running her fingers through her hair.” She was “laughing occasionally while she [was] talking on the phone.” She was “smiling” and her “body posture [was] relaxed.” She was swinging her arms in a “rather carefree manner.” But 90 minutes later, after the alleged sexual assault, she was “crying pretty much throughout the time of the video.” Although there is no audio, it is obvious, as the trial judge found, that she was “wiping the tears away from her face virtually throughout the entire time she [was] in the lobby. She [was] obviously very, very upset.” As the trial judge also found: “I see a video of an extremely distraught young woman who is crying copiously and is very, very upset.” I see no basis to interfere with these core conclusions. [27] Even so, I agree with the appellant that the trial judge went too far when he described the complainant as “close to being emotionally shattered by what ha[d] just happened to her, very defensive, and on the verge of losing her self control”. In my view, the video footage does not justify this characterization of the complainant’s inner emotional state. This rhetorical flourish, however, does not undercut the trial judge’s core conclusions set out above. As a majority of the Supreme Court of Canada recently underscored in R. v. G.F. , 2021 SCC 20, at para. 76, a trial judge’s reasons, “particularly in sexual assault cases”, must be reviewed “functionally and contextually” rather than “in a search for error”. Trial decisions must not be overturned “on the basis of parsing imperfect or summary expression on the part of the trial judge”, particularly on issues of credibility: at para. 76. Thus, while I would find the trial judge went too far in his characterization of the video footage, that does not justify setting aside his core conclusions. [28] Nor are the trial judge’s core conclusions undercut by his conjecture that the complainant’s demeanour in the elevator — where she was huddled in the corner and hugged Jordan on the way out but ignored the appellant’s hand as he reached out to her — suggested that she “was still hoping that [Jordan] was a person that she might be able to have some continued relation with.” The trial judge appears to have ignored his own salutary caution, expressed a few lines earlier, that one “cannot read too much into something like that, it is a very short clip.” [29] I also disagree with the appellant’s claim that the trial judge’s findings of the complainant’s emotional state are contradicted by her own testimony. The complainant rejected defence counsel’s suggestion that, at one point in the video, she was in a squatting position in the lobby because she was standing in high heels and getting tired. Instead, she testified that it was because she was “sad”. The appellant says that the complainant described herself as being only “sad”, a far cry from being (in the trial judge’s words) “close to being emotionally shattered by what has just happened to her”. But the trial judge’s use of much more expressive language than the complainant does not detract from his essential point — that the complainant’s emotional state in the video corroborated her testimony that the sex was not consensual. [30] Finally, I do not accept that the trial judge erred in rejecting an alternative, innocent explanation for the complainant’s post-event demeanour. The appellant argued that the complainant was upset when she realized that the date with Jordan was a pretext to get her to the condo to have sex with both men, that the men considered her (as defence counsel at trial, who was not appeal counsel, put it) “sex worthy, but … not club worthy”, and that she was upset about Jordan’s comment that she had just been in a “threesome”. The trial judge considered and rejected this defence theory for the complainant’s post-event demeanour. As he explained: [Counsel for the appellant], in his very able argument, put it to me that the complainant had been treated very shabbily by [Jordan] and [the appellant]. She had been invited over for a night out and instead, as soon as the two men had had sex and got what they wanted from her, they just dumped her at the doorstep to take her own Uber home and went off to have a night out on their own. If I was to accept that version of facts, that the leaving of the complainant at the front door was a callous disregard for her as a human being and treating her as just an object for sexual gratification, who was not wanted the moment the men got what they wanted, if I were to accept that, I still would find that motivation to not explain the distraught emotional state in which I see the complainant in the lobby of the building. Nor would it explain false allegations of sexual misconduct against [the appellant] or anyone for that matter . Nor would it explain the curious decision to make the allegation against [the appellant] but not against [Jordan], if that was a false allegation. [31] The trial judge’s other findings supported this conclusion. He accepted the complainant’s evidence that she was at first unsure of Jordan’s role in what had taken place in the condo and only realized that Jordan was “in on it” — in the sense of inviting her to the apartment for a “threesome” — over the next day or two. [1] I see no basis to interfere with any of these conclusions. [32] I also reject the appellant’s claim that the trial judge convicted the appellant based solely on the post-event demeanour evidence. The trial judge’s reasons were clear that he completely rejected the appellant’s evidence. He also stated that he believed the complainant’s evidence that the appellant had sexually assaulted her. However, given the high standard of proof required for a criminal conviction, the trial judge fairly noted that he would have had reservations convicting the appellant without the video evidence. I see no error in the trial judge’s reasoning process or conclusion. [33] I therefore conclude that the trial judge did not err in evaluating the complainant’s post-event demeanour as recorded on the video footage. He was entitled to conclude that the video footage corroborated the complainant’s denial of consent and was not reasonably consistent with the existence of consent. He was also entitled to infer a causal relationship between the sexual assault and the complainant’s distraught emotional state reflected in the video footage. Issue #2: Did the trial judge render an unreasonable verdict? [34] The appellant’s second ground of appeal asserts that the trial judge’s verdict was unreasonable. [35] A verdict is unreasonable if: (1) it is not one that a properly instructed jury or judge, acting judicially, could have reasonably rendered; or (2) the trial judge drew an inference or made a finding of fact essential to the verdict that (a) is plainly contradicted by the evidence that the trial judge relied on in support of that finding or inference, or (b) is incompatible with evidence not otherwise contradicted or rejected by the trial judge: R. v. C.P. , 2021 SCC 19, at paras. 28-29; R. v. R.P. , 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9. [36] When determining whether the verdict was reasonable, an appellate court cannot interfere with the trial judge’s assessments of credibility unless it is established that those assessments cannot be supported on any reasonable view of the evidence: C.P. , at para. 30; R.P. , at para. 10. [37] Here, the appellant asserts that the trial judge’s verdict is unreasonable because the complainant’s narrative had such fundamental contradictions that it rendered her version of events impossible. He notes the complainant testified that she was physically held down as she was assaulted and that she struggled and kicked in an attempt to escape — which suggested she understood at the time that she was being assaulted — yet she also testified that it was only later, when she was in the lobby waiting for the Uber, that she began to process what had happened to her. The appellant also notes that there was an alternative, innocent explanation for the complainant’s post-event demeanour that could not be excluded. [38] I do not accept the appellant’s submissions. Although the trial judge fairly acknowledged that there were problems with aspects of the complainant’s evidence, he found those problems did not go to the core of her account of forced, non-consensual sex. The complainant was unequivocal that she did not consent to the sexual activity with the appellant. The trial judge determined that her post-event demeanour or emotional state, as recorded on the video, corroborated her account. In these circumstances, in my view, the verdict cannot be said to have been unreasonable. [39] Nor is there any contradiction in the complainant’s testimony that, on the one hand, she resisted the appellant, and , on the other hand, that she only processed what had happened to her later, when she was downstairs in the lobby. The events recounted by the complainant happened quickly. She testified that she was “in shock” when she was sexually assaulted and was “trying to process” what had happened to her. That she fought back during the assault does not mean that she had fully processed or comprehended what had just happened to her. The appellant’s argument presumes that resisting during a sexual assault is incompatible with not fully understanding the nature of the assault until later. Yet both the Supreme Court of Canada and this court have repeatedly cautioned that “there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R. v. D.D. , 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; R. v. Lacombe , 2019 ONCA 938, 383 C.C.C. (3d) 114, at paras. 31-34. There is similarly no inviolable rule on how a sexual assault complainant will process a traumatic event. I see nothing incompatible with resisting during a sexual assault, being in a state of shock, and only fully processing the assault somewhat later. [40] The trial judge was also entitled to reject the appellant’s alternative explanation for the complainant’s post-event demeanour, for the reasons already noted above. [41] To conclude, I do not accept that the trial judge’s verdict was unreasonable. Even accepting that the trial judge’s description of the video was exaggerated or involved speculation in places, this does not undercut his core finding that the complainant did not consent to sex with the appellant. Issue #3: Did the trial judge improperly assess the evidence? [42] Finally, the appellant raised several arguments in his factum that he did not pursue in oral argument, alleging that the trial judge improperly assessed the evidence. The appellant claims that the trial judge: (1) engaged in stereotypical reasoning as to why the complainant did not leave the room when the appellant first made advances towards her, as reflected in the trial judge’s comment that “part of being a young woman in today’s age is rebuffing unwanted sexual advances”; (2) speculated that the complainant lied in her police statement that she did not have sex with Jordan the second time she met him because she was embarrassed; (3) addressed the complainant’s credibility but failed to analyze her reliability; and (4) engaged in uneven scrutiny of the evidence of the appellant and complainant. [43] I see no merit in these arguments. They essentially invite this court to second-guess the trial judge’s credibility findings based on a paper record and to circumvent the appellate deference owed to those findings. As a majority of the Supreme Court recently underscored in G.F. , at para. 81, “a trial judge’s findings of credibility deserve particular deference”, because “in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial.” The majority in G.F. emphasized, once again, that “[c]redibility findings are the province of the trial judge and attract significant deference on appeal” (citations omitted): at para. 99. Here , in my view, the trial judge complied with his obligation to “[strive] to explain why [the] complainant [was] found to be credible, or why the [appellant was] found not to be credible, or why the evidence [did] not raise a reasonable doubt”: at para. 81. I therefore see no basis to intervene. [44] Nor is there any merit in the appellant’s argument that the trial judge failed to assess the complainant’s reliability. The majority in G.F. emphasized that “[a] trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability” (citation omitted): at para. 82. The majority concluded that, provided trial judges consider the relevant considerations bearing on credibility and reliability, “there is no requirement that they utter the word ‘reliable’”: at para. 82. Here, even though the trial judge did not specifically refer to the reliability of the complainant’s evidence, he carefully scrutinized both the appellant’s evidence and the complainant’s inculpatory evidence, as corroborated by the video evidence, including the truthfulness and accuracy of both. I see no basis for this court to intervene. CONCLUSION [45] Despite Ms. Yuen’s excellent submissions, I would dismiss the appeal. Released: June 11, 2021 “R.G.J.” “M. Jamal J.A.” “I agree. R.G. Juriansz J.A.” “I agree. Coroza J.A.” [1] The trial judge found that Jordan “understood that [the appellant] had just had sex with the complainant in the bedroom”, but “did not understand” that the sex was without consent.

WARNING Prohibitions under the Child, Youth and Family Services Act , 2017, S.O. 2017, c.14, Sched. 1 apply to this decision: Prohibition re identifying child 87(8) 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. Prohibition re identifying person charged 87(9) 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. Transcript 87(10) No person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise. Offences re publication 142 (3) A person who contravenes subsection 87 (8) or 134 (11) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT OF APPEAL FOR ONTARIO CITATION: Children’s Aid Society of Algoma v. G.C., 2021 ONCA 400 DATE: 20210610 DOCKET: C69175 Doherty, Trotter and Thorburn JJ.A. BETWEEN Children’s Aid Society of Algoma Applicant/Respondent (Respondent) and G.C. Respondent/Appellant (Appellant) and C.P., S.B., and Conseil des Abenakis D’Odanak Respondents (Respondents) Eric McCooeye, for the appellant Jennifer Mealey, for the respondent Children’s Aid Society of Algoma No one appearing for the respondent C.P. No one appearing for the respondent S.B. No one appearing for the respondent Conseil des Abenakis D’Odanak Catherine Bellinger and Liisa Parisé, for the respondent Office of the Children’s Lawyer Heard: June 2, 2021 by video conference On appeal from the order of Justice Annalisa S. Rasaiah of the Superior Court of Justice, dated February 3, 2021, dismissing an appeal from the order of Justice John Kukurin of the Ontario Court of Justice, dated November 3, 2019. REASONS FOR DECISION [1] The Children’s Aid Society of Algoma (“the Society”) applied to have three of the appellant’s children found to be in need of protection on the grounds that they are at risk of sexual harm on account of their father under s. 74(2)(d) of the Child, Youth and Family Services Act, 2017 , S.O. 2017, c. 14, Sched. 1. (the “ CYFSA ”). The motion judge made this finding on a summary judgment motion. Orders as to supervision and access have yet to be made. [2] The appellant’s first appeal of this order, brought pursuant to s. 121 of the CYFSA , was dismissed. He appeals that decision to this court: Courts of Justice Act , R.S.O. 1990, c. C-43, s. 6(1). [3] For the reasons that follow, the appeal is dismissed. Background [4] The appellant is the biological father of three children: K.P, born in 2008; O.C., born in 2013; and J.H.C., born in 2015. K.P.’s mother is C.P., while O.C. and J.H.C.’s mother is S.B. [5] The Society brought child protection applications in respect of each child: K.P.’s was brought on the grounds of actual sexual harm and risk of sexual harm in 2013; the other two applications were based on risk of sexual harm shortly after each child was born. All three applications were ordered to be tried together. [6] The appellant has not been convicted of any sexual offences, though charges have been laid against him twice. He was charged with historical sexual offences against two pre-teen girls, but the charges were stayed for delay. Later, the appellant was charged with sexual offences against K.P., but the Crown withdrew the charges. Since 2013, two other women have made sexual misconduct allegations against the appellant. Both alleged the misconduct occurred when they were under 18. [7] Well before the summary judgment motion, the appellant was ordered to undergo a psychosexual assessment. This assessment involved phallometric testing. The assessor, Dr. Robert Dickey, was of the opinion was that the appellant suffers from pedohebephilia. The Summary Judgment Motion [8] In support of its motion for summary judgment, the Society relied on voluminous materials, including the appellant’s psychosexual assessment and affidavit evidence from three complainants who alleged historical sexual assault. [1] The motion was only concerned with the risk of sexual harm (s. 74(2)(d) of the CYFSA ). The motion judge concluded there was no genuine issue requiring a trial to determine this question. He made the finding under s. 74(2)(d). [9] The motion judge delivered extensive and detailed reasons in which he considered his jurisdiction to grant summary judgment, as well as the proper approach to summary judgment motions in child protection cases mandated in Kawartha-Haliburton Children’s Aid Society v. M.W. , 2019 ONCA 316, 432 D.L.R. (4th) 497. He sifted through a considerable body of documentary evidence and made many admissibility determinations. As a result of this process, the motion judge based his finding on the first-hand affidavits of three adult women who reported events from many years ago when they were between the ages of 9 and 12, a “willsay” statement (and an accompanying police occurrence report) from another woman describing historical sexual abuse, the psychosexual assessment, and the appellant’s response. [10] The motion judge analyzed this evidence through the lens of Kawartha-Haliburton and concluded, at para. 146: In summary, I conclude that the society has provided sufficient evidence for me to conclude that there is no genuine issue that requires a trial with respect to whether the [appellant] is a risk of sexual harm to his three children. I arrive at this conclusion cautiously realizing that to do otherwise is contrary to the directive guidance of the appellate court in the Kawartha case. I am satisfied that, if a trial were held on this issue of a finding in need of protection on account of a risk of sexual harm, the same result would be inevitable and there would be no realistic possibility of an outcome other than that sought by the applicant society. I am confidant that I have used extreme caution to assess the admissibility of various pieces of evidence presented on this summary judgment motion and have rejected what is inadmissible in law, and have given appropriate judicial weight to what is admissible, again in law. I have gauged the admissible evidence on both sides, and have given reduced weight where deserved. I have applied the jurisprudential principles that have been established over several decades and that still apply to summary judgment motions in child protection cases. I have applied these to the [appellant’s] responses to this motion and have found that he has not established with specific facts, that there is a genuine issue that requires a trial. Finally, I have been able to reach what I consider a fair and just determination on the merits on a motion for summary judgment…. [11] The appellant raised numerous issues on his first appeal, all of which were dismissed. In a nutshell, the appeal judge determined that the motion judge adopted the proper approach to the summary judgment power in child protection proceedings, appropriately framed the issue before him, made no errors in his evidentiary rulings, and properly weighed and assessed the evidence he admitted. Analysis [12] The appellant raised many of the same issues from his first appeal on this appeal. However, at the hearing of this appeal, he focused on one ground – whether the motion judge and the appeal judge properly considered the principle of proportionality in the summary judgment proceeding. [13] The appellant submits that, given the significant consequences of a finding under s. 74(2)(d) of the CYFSA , the summary judgment procedure is an unsuitable vehicle for adjudication. He submits that the judges below failed to appreciate the unfairness in proceeding in this manner. Principally, the appellant relies on his inability to cross-examine the affiants who made allegations of sexual impropriety against him. He also criticizes the appeal judge’s approach to certain findings made by the motion judge, specifically, those that related to the credibility of witnesses. [14] The appellant originally indicated his intention to cross-examine two of the female affiants. This request was subsequently abandoned without explanation. Before this court, appellant’s counsel submits that the request was abandoned because the appellant could not afford the costs associated with cross-examining witnesses in different parts of the province and then obtaining transcripts of their evidence. However, this was not put on the record before the motion judge; it was not raised with the appeal judge. Accordingly, there is no foundation for this court to evaluate this claim. [15] Nonetheless, assuming impecuniosity, relief might have been obtained in the summary judgment provision in the Family Law Rules , O. Reg. 114/99. These rules apply to proceedings under Parts V, VII, and VIII of the CYFSA : r. 1(2)(a)(ii). Rules 16(6.1) and (6.2) gives a judge hearing a summary judgment motion the following powers: POWERS (6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. ORAL EVIDENCE (MINI-TRIAL) (6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. For an example of the use of a mini-trial in this context, see The Children’s Aid Society of the Districts of Sudbury and Manitoulin v. V.T. , 2018 ONCJ 220, at paras. 10-12. See also r. 20: Questioning a Witness and Disclosure. [16] It was open to all counsel on the motion to request that the motion judge direct a mini-trial and order that certain witnesses be required to give oral evidence. This was not done. [17] The appellant submits that the appeal judge erred by approving the motion judge’s approach to assessing the evidence in relation to the evidence of one of the affiants. In the face of the affiant’s evidence, the motion judge said, at para. 94: “The [appellant’s] response to these allegations … is that he does not have any knowledge of the events described … and has no memory of them, but nevertheless denies the incident and any wrongdoing.” Later in his reasons, the motion judge returned to the affiant’s evidence, saying it was “very persuasive, basically uncontradicted, and not seriously attacked by [the appellant]”: at para. 130. He explained that the appellant had the opportunity to cross-examine the affiant, but chose not to follow through, despite the fact the evidence was “very damaging to him”. Instead, the appellant merely denied the allegation happened. But in this case, a denial was “not enough”. [18] The appellant submits the motion judge improperly found the affiant’s evidence was “uncontradicted” and that the appellant’s denial of wrongdoing was “not enough”. He says there are circumstances where a denial may be the only option, as it may be impossible to provide specific facts to rebut the allegation. As a result of this error, the motion judge wrongfully gave enhanced weight to the affiant’s evidence. [19] The appellant had made similar submissions to the appeal judge – that the motion judge erred in finding the appellant’s denial was insufficient to contradict the affiant’s evidence and in giving the evidence enhanced weight. In addressing this submission, the appeal judge referred to r. 16(4.1), which provides: (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial . [Emphasis added.] [20] Turning to the motion judge’s decision on this issue, the appeal judge said, at paras. 54-55: Contrary to the appellant’s position, [the motion judge] expressed and acknowledged that he appreciated that sometimes a denial in some circumstances may be the only reasonable response and perhaps the only possible response. However, in this case, he concluded that [the affiant’s] evidence was not seriously attacked by [the appellant], when he had the opportunity to do so, putting your best foot forward is required on a summary judgment motion . It was not incorrect to address that [the appellant] was fully aware of his right to cross-examine the affidavits and had previously taken steps in the proceeding for same, only to have abandoned them. I do not agree that [the motion judge] expressed that the evidence’s weight was enhanced or that he enhanced same for a failure to seek a cross-examination of the evidence filed on the motion before the hearing of it. [Emphasis added.] We agree with this reasoning. It was open to the motion judge to deal with evidence in the manner that he did. [21] The appellant made numerous other submissions in his factum. Some of them deal with the general approach of the motion judge and the appeal judge to summary judgment in child protection proceedings; others attack admissibility decisions and the weighing of the evidence that was admitted. [22] We agree with the appeal judge that the motion judge applied the correct test for summary judgment and that the motion judge’s reasons demonstrate a proper application of the principles discussed in Kawartha-Haliburton . [23] As for the appellant’s complaints about the admissibility of various pieces of evidence, we agree with the appeal judge when she said, at para. 50: Further, the reasons demonstrate that [the motion judge] applied a cautious approach to the evidence , carefully screening the voluminous record, making admissibility rulings against a significant portion of [the Society’s] filings , including affidavits that [the appellant] would describe as “overpowering” and written by “professional affidavit writers”, that would “create imbalance”. [Emphasis added.] [24] After ruling that the bulk of the evidence presented by the Society was inadmissible, the motion judge engaged in a careful balancing of what remained. Rule 16 permitted the motion judge to make findings of credibility and to weigh the evidence of the affiants, and his conclusions are entitled to deference. The evidence that he accepted formed a proper foundation for his finding under s. 74(2)(d) of the CYFSA . Disposition [25] The appeal is dismissed. None of the parties seek costs. Accordingly, no costs order is made. “Doherty J.A.” “Gary Trotter J.A.” “J.A. Thorburn J.A.” [1] Two of these women were the complainants who made the historical allegations that resulted in a stay, referred to in para. 6.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gervais, 2021 ONCA 404 DATE: 20210610 DOCKET: C67391 Benotto, Trotter and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Raymond Gervais Appellant Raymond Gervais, in person Brian Snell, as duty counsel Nicole Rivers, for the respondent Heard: June 7, 2021 by videoconference On appeal from the sentence imposed on July 11, 2019 by Justice Deborah Kinsella of the Ontario Court of Justice. REASONS FOR DECISION [1] Mr. Gervais appeals his sentence of four years for assault causing bodily harm. [2] The appellant attempted to force his way into an apartment in search of a female friend. When the victim blocked his entry, the appellant assaulted him, including kicking the victim in the head while the victim was on the ground, causing severe injuries. The victim was 66 years old at the time. The appellant was 50. The appellant also has a lengthy criminal record. [3] The appellant submits that the sentencing judge overemphasized denunciation and also failed to respect the “jump” principle. We do not agree. [4] The sentencing judge considered all of the relevant aggravating and mitigating factors. Her reasons for sentence are well articulated and are entitled to deference. The challenges to the sentencing judge’s reasons do not amount to establishing any error in principle. Further, given the seriousness of the injuries caused and the criminal record of the appellant, the sentence is not demonstrably unfit. Consequently, there is no basis for this court to interfere with the sentence imposed: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089. [5] Leave to appeal sentence is granted but the appeal is dismissed. “M.L. Benotto J.A.” “Gary Trotter J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. John, 2021 ONCA 403 DATE: 20210610 DOCKET: M52184 Benotto, Trotter and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Darren John Appellant Darren John, in person Nicole Rivers, for the respondent Heard: in writing On appeal from the decision of the Summary Convictions Appeal Court dated January 19, 2021 by Justice Peter J. Cavanagh of the Superior Court of Justice, dismissing the appeal from the conviction entered on June 30, 2015 by Justice Lucia Favret of the Ontario Court of Justice. REASONS FOR DECISION [1] Mr. John seeks leave to appeal from the dismissal of his appeal from his conviction and sentence on a charge of knowingly uttering or causing a person to receive a threat to cause bodily harm contrary to s. 264.1(1)(a) of the Criminal Code . The appellant was sentenced to a suspended sentence with a one year period of probation. [2] The summary conviction appeal court judge gave detailed reasons for rejecting each of the 14 issues raised by Mr. John on his appeal. [3] While Mr. John repeats the issues he advanced in the court below, the main basis for which he now seeks leave to appeal revolves around the fact that some disclosure was not provided to him prior to his trial. It appears from the material filed that a disclosure package was made available to Mr. John’s former counsel but at a time after that lawyer had ceased to act for Mr. John. [4] This issue arose during the course of Mr. John’s trial. He was advised by the trial judge as to the proper procedure to address this issue, including writing first to Crown counsel about it and then, if still unsatisfied, raising the issue with the trial judge. It appears that Mr. John did not undertake either of those steps. [5] After his conviction, Mr. John brought many procedural motions, at least one of which touched on this disclosure issue. All but one of those motions were summarily dismissed, including the motion relating to the disclosure issue. [6] The test for granting leave to appeal in a summary conviction matter is well-established. Leave should be granted sparingly. Two key variables will normally determine whether leave should be granted – the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal: R. v. R. (R.) (2008), 90 O.R. (3d) 641 (C.A.). [7] This case does not have any significance to the general administration of justice. Further, there is an absence of merit to the appeal. The disclosure that Mr. John complains he did not receive, and thus could not use at his trial, relates principally to one of the charges on which he was acquitted. Further, his failure to raise the issue during the course of the trial is fatal to his complaint. [8] The motion for leave to appeal is dismissed. “M.L. Benotto J.A.” “Gary Trotter J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Stephens, 2021 ONCA 402 DATE: 20210610 DOCKET: M52337 (C58723) Benotto, Trotter and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and William Russell Stephens Appellant William Russell Stephens, in person Michael Fawcett, for the respondent Heard: June 7, 2021 by videoconference On appeal from the decision of the Summary Convictions Appeal Court dated January 29, 2014 by Justice Harrison S. Arrell of the Superior Court of Justice, dismissing the appeal from the conviction entered on July 20, 2009 by Justice Brian Stead of the Ontario Court of Justice. REASONS FOR DECISION [1] Mr. Stephens brings a motion in which he seeks to set aside the dismissal of his motion for leave to appeal as abandoned which occurred by order dated May 11, 2016. Mr. Stephens also seeks the appointment of amicus curiae and an order directing that a fresh psychiatric report be prepared regarding whether Mr. Stephens was not criminally responsible (“NCR”) at the time of the offence. [2] Mr. Stephens raised three issues at the hearing. One relates to disclosure alleged not to have been provided prior to trial; another relates to Mr. Stephens’ view of the qualifications (or lack thereof) of the doctor who prepared the recent psychiatric report; and the third relates to Mr. Stephens disagreement with the conclusion of that report. [3] With respect to those latter two issues, on August 21, 2015, Juriansz J.A. ordered that a psychiatric report be prepared on the NCR issue. That report was delivered on February 16, 2016. It concluded “the available evidence suggests that Mr. Stephens does not meet criteria to be found not criminally responsible.” The report was prepared by a psychiatrist from Western University. [4] Mr. Stephens has not provided any explanation for why his motion for leave to appeal should be reinstated after he filed a notice of abandonment on April 25, 2016. The disclosure issues that Mr. Stephens now raises would have been known to him prior to him filing his notice of abandonment. [5] With respect to the psychiatric report, Mr. Stephens has not provided any proper foundation for his request for the preparation of a new psychiatric report. All that Mr. Stephens says is that the report was prepared “by an unqualified doctor and his conclusions are nonsensical”. Neither of those assertions are borne out by the record. [6] Mr. Stephens did not address his request for the appointment of amicus curiae . In any event, there is no basis for such an appointment in the circumstances of this case. [7] The motion is dismissed. “M.L. Benotto J.A.” “Gary Trotter J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Dhatt v. Beer, 2021 ONCA 412 DATE: 20210609 DOCKET: C68375 and C68539 Strathy C.J.O., Brown and Miller JJ.A. BETWEEN Mandeep Dhatt and Kulwinder Dhatt Plaintiffs (Respondents) and Derek Beer and Indira Beer Defendants (Appellants) and Jay Brijpaul and Re/Max West Realty Inc., Brokerage Third Parties (Respondents) David P. Lees and Zachary Silverberg, for the appellants Arnie Herschorn, for the respondents, Mandeep Dhatt and Kulwinder Dhatt Serena L. Rosenberg, for the respondents, Jay Brijpaul and Re/Max West Realty Inc. Heard: February 10, 2021 by video conference On appeal from the judgment and order of Justice Carole J. Brown of the Superior Court of Justice, dated May 1, 2020 and July 30, 2020, respectively, with reasons for judgment reported at 2020 ONSC 2729. COSTS ENDORSEMENT [1] In accordance with the agreement of the parties, the appellants shall pay the respondents, Mandeep Dhatt and Kulwinder Dhatt, their costs of the appeal fixed in the amount of $8,200, and the third party respondents, Jay Brijpaul and Re/Max West Realty Inc., Brokerage, their costs of the appeal fixed in the amount of $6,700, both amounts inclusive of disbursements and applicable taxes. The purchase price under the agreement of purchase and sale dated January 22, 2016 shall be reduced by the amount of such costs. “G.R. Strathy C.J.O.” “David Brown J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: De Palma v. Canadian Federation of Independent Business, 2021 ONCA 406 DATE: 20210609 DOCKET: C67947 Fairburn A.C.J.O., Harvison Young and Jamal JJ.A. BETWEEN Francesco De Palma Plaintiff (Appellant) and Canadian Federation of Independent Business Defendant (Respondent) Andrew Monkhouse and Samantha Lucifora, for the appellant Nafisah Chowdhury, for the respondent Heard and released orally: June 7, 2021 by video conference On appeal from the order of Justice Janet Leiper of the Superior Court of Justice, dated December 20, 2019. REASONS FOR DECISION [1] This is an appeal from a motion for summary judgment dismissing the appellant’s claim for constructive dismissal, among other relief. [2] The appellant was employed by the Canadian Federation of Independent Business, the respondent, for approximately 20 years when his sales of new memberships for the respondent began to decline. When the respondent raised the matter with the appellant, the appellant stated that he no longer wished to be involved in selling new memberships because of his age, health, and tenure with the respondent. Discussions ensued, and eventually the appellant’s insurer approved him for Long Term Disability benefits. Approximately 19 months later, the appellant brought a claim for constructive dismissal against the respondent, along with other heads of relief. [3] The respondent then brought a motion for summary judgment, seeking to dismiss all of the appellant’s claims in his Statement of Claim pursuant to r. 20.01(3) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Following an application of the court’s powers under r. 20.04(2.1), the motion judge was satisfied that there was no genuine issue requiring a trial with respect to the appellant’s claims. Therefore, the respondent succeeded on their motion for summary judgment, obtaining the dismissal of the appellant’s action. [4] The appellant appeals on the basis of four alleged errors made by the motion judge. [5] First, the appellant argues that the motion judge erred by failing to consider each of his claims set out in the Statement of Claim, instead focusing solely upon the claim involving constructive dismissal. These include the claims for intentional infliction of mental distress, violation of human rights, and punitive damages. We do not agree. [6] While the motion judge did focus upon the constructive dismissal claim, she was correct to do so, as she found constructive dismissal was “at the heart” of the appellant’s claim. We agree with that assessment. If there was no constructive dismissal of the appellant, there could be no intentional infliction of mental distress and no possibility for punitive damages. Accordingly, it was not necessary for the motion judge to go on and consider those other heads of relief. [7] In light of her conclusions relating to the “heart” of the matter, nor was there any reason for the motion judge to go on and specifically address the suggestion that the respondent had breached the Human Rights Code , R.S.O. 1990, c. H.19, by failing to accommodate the appellant’s disability. In fact, as found by the motion judge, the constructive dismissal claim could not succeed because the respondent was “reasonabl[y] request[ing] information to design a plan for accommodation”. Therefore, the respondent was making active efforts to attempt to accommodate the appellant’s disability. All secondary claims flowed from the constructive dismissal claim and, as such, it was truly the only live issue before the motion judge. She squarely dealt with that issue in her reasons. [8] Second, the appellant claims that the motion judge erred in failing to grant him his requested adjournment of the motion for summary judgment. We see no error in the motion judge’s refusal to grant this request. There was no evidentiary foundation placed before the motion judge that would have supported a late-in-the-day adjournment. In these circumstances, we defer to the motion judge’s exercise of discretion. [9] Third, the appellant argues that the motion judge erred in her approach to the question of summary judgment. In essence, the appellant claims that summary judgment was not appropriate in the circumstances. We do not agree. [10] The motion judge correctly stated the law relating to summary judgment. We agree with her assessment that the matter turned largely on documentary evidence, where the communications between the parties were carefully catalogued. For the reasons stated by the motion judge, those communications revealed that the respondent did not constructively dismiss the appellant. Rather, the respondent was making efforts to determine how to accommodate the appellant in the workplace, which efforts were frustrated by the appellant’s refusal to comply with the respondent’s requests. This was therefore an entirely appropriate case for summary judgment. [11] Fourth, and finally, the appellant argues that the motion judge erred because she failed to pronounce upon the outcome of his employment status. The motion judge was not asked to do so. It does not fall to the appellant to allege an error in failing to address something that he did not raise at the motion. [12] The appeal is therefore dismissed. [13] Costs will be paid to the respondent in the amount of $20,000, all inclusive. “Fairburn A.C.J.O.” “A. Harvison Young J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: K.K. v. M.M., 2021 ONCA 407 DATE: 20210608 DOCKET: M52479 & M52499 (C69393) Zarnett J.A. (Motions Judge) DOCKET: M52479 BETWEEN K.K. Applicant (Appellant/Moving Party) and M.M. Respondent (Respondent/Responding Party) DOCKET: M52499 AND BETWEEN K.K. Respondent (Appellant/Responding Party) and M.M. Applicant (Respondent/Moving Party) Gary Joseph and Vivian Li, for the appellant, K.K. Aida Pasha, for the respondent, M.M. Heard: June 3, 2021 by videoconference ENDORSEMENT Introduction [1] The appellant, K.K. (the “father”) moves for a stay pending appeal of the aspects of the trial judge’s April 9, 2021 Final Order (the “Order”) that pertain to parenting the parties’ son, J.K. [2] The Order directed that J.K.’s primary residence be with the respondent, M.M. (the “mother”), and temporarily suspended, and then restricted, contact between the father and J.K. Pursuant to the Order, J.K.  has relocated to the mother’s home and has been residing with her for close to two months. For about six years prior to trial, J.K. had lived with the father. [3] The mother opposes the stay and moves for security for costs of the appeal. [4] For the reasons that follow, both motions are dismissed. The Litigation, The Trial Judge’s Findings, and the Order [5] The parties separated in November 2012. They then engaged in what the trial judge described as a “protracted high-conflict legal battle” involving their children, V.K. (now 16 years old) and J.K (now 11 years old). From the time the proceedings commenced in 2013, there were approximately 40 court appearances at motions and conferences. [6] During the litigation, several pre-trial orders about the children’s primary residence were made. In March 2014, sole custody of the children was granted to the father based on an interim finding of parental alienation by the mother. As the trial judge found, “[f]or the next six and a half years, the children resided with the father in…Brampton and had extremely limited parenting time with the mother”, including lengthy periods of virtually no contact or communication. [7] In September 2020, V.K. left the father’s residence and moved in with the mother in Toronto. At the time of trial, the children were living in separate residences – J.K. with the father and visiting the mother’s house on weekends, and V.K. with the mother. [8] The matter was tried over 19 days between November 2020 and April 2021. Among the major issues at trial were the allocation of parental decision-making, the question of with whom the children should primarily reside, and the parenting schedule. [1] Important to the disposition of those issues was the question of which parent had tried to alienate the children from the other parent. [9] The trial evidence canvassed the history of the parties’ behavior and interactions with the children, one another, and various professionals. This provided the trial judge with what she considered to be a more comprehensive evidentiary basis than that on which the interim pre-trial findings had been made. [10] The trial judge found that the father was not a credible witness. She found the mother to be credible and, for the most part, a reliable historian. She concluded “that the mother did not engage in any alienating conduct, but rather was the target of the father’s vilification and parental alienation”. [11] The trial judge considered the parenting plans put forward by the parties but directed herself that she was ultimately to determine what orders would be in the children’s best interests. In this regard, she made several findings that underpin the provisions of the Order pertaining to J.K. [12] The trial judge found that “the physical, emotional and psychological safety, security and well-being of both children would best be fostered if they were living together in their mother’s home”. She found that while V.K. had made a rational decision in her own best interest to move in with her mother, J.K. was not old enough to be able to evaluate what was in his own best interest, that his views had been “profoundly influenced by his father’s relentless vilification of his mother”, and that his expressed desire (including to an Office of the Children’s Lawyer clinician) that he wished to reside with his father was not independently formed. [13] The trial judge concluded that J.K.’s best interests “necessitate not only that he lives principally with his mother and sister, but also that he has no contact with his father for a temporary period of time”. She came to that determination after noting that J.K. had a strong emotional attachment to his father, in whose primary care J.K. had been for most of his life and recognizing that separating him from his father would have a serious emotional impact on him. But she was “convinced that he needs to be removed from the poisonous atmosphere of his father’s orbit in order to escape the crushing pressure under which he has been placed”. She rejected ordering “supervised parenting time for the father to maintain regular contact with J.K., which would be a less dramatic transition fraught with less emotional upheaval” given “the father’s history of continual manipulation” and “relentless and effective…efforts to undermine J.K.’s relationship with the mother”, which she expected would continue. She “concluded that a temporary period of no contact with the father is what will promote J.K.’s best interests ”. [14] The Order, made immediately following the conclusion of the trial, addresses parenting of both children. I describe in general terms only those aspects relating to J.K., as they are the subject of both the appeal and the motion for a stay. [15] The Order directed that the principal residence of J.K. would be with the mother, who would have sole responsibility for making all day-to-day significant decisions, including selection of schools, [2] professionals, and decisions about healthcare, without any requirement to consult with the father. The father is prohibited, until June 19, 2021, from communicating with J.K. or having any parenting time with him outside of sessions with a specified counsellor. From June 20 to July 31, 2021, the father is permitted two weekly video calls of up to 20 minutes in length with J.K. After August 1, the father is also permitted in-person parenting time with J.K. each Sunday from 10 a.m. to 6 p.m. After September 30, 2021, the father may bring a motion before the trial judge to review the parenting schedule and for expansion of his parenting time with J.K. and his responsibility for parental decision-making. The Motion to Stay [16] The father’s motion to stay was brought before the detailed reasons of the trial judge were available but was heard shortly after those reasons were released. The father asks that the Order be stayed and that the care and primary residence of J.K. be returned to him, pending disposition of his appeal. [17] The test for a stay of an order involving the parenting of a child is not in dispute. The overarching consideration in whether to grant a stay pending appeal is whether doing so is in the interests of justice. Three factors are considered: (1) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a “low threshold”; (2) whether the child would suffer irreparable harm if the application were refused; and, (3) the balance of convenience, namely, whether there would be greater harm from the granting or refusal of the remedy pending a decision on the merits: Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), at para. 6; Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), at paras. 8-9. [18] In my view, it is not in the interests of justice to grant a stay. [19] On the merits of the appeal, the father focusses on the decision of the trial judge to attach no weight to the opinions or recommendations in reports made by an assessor appointed under s. 30 of the Children’s Law Reform Act , R.S.O. 1990, c. C.12 (“ CLRA ” ), or to arrange for him to testify. The assessor’s 2014 reports were the support for the finding in March 2014 that the mother had engaged in parental alienation, which led to interim custody orders in the father’s favour; the assessor made subsequent reports through 2018. Under the CLRA , an assessor’s reports are admissible in evidence and the assessor may be required by any of the parties to attend at the hearing as a witness: ss. 30(9), (10). [20] The trial judge made these rulings relying on a decision made by the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario (“CPSO”) in regulatory proceedings against the assessor and a record of the assessor’s membership status on the CPSO website. She viewed the regulatory decision as discrediting the assessor’s reports because it found that they had been prepared in a manner that fell below professional standards. Aside from the regulatory decision, she would not have relied on the assessor’s reports without his attendance for cross-examination, a request she would have denied because of undertakings the assessor had given to the CPSO as disclosed by the website information. [21] The father argues that the trial judge erred in overriding the statutory admissibility of the assessor’s reports and the statutory ability of a party to request the assessor’s attendance at trial. The father submits that she erred in treating, as inapplicable, s. 36(3) of the Regulated Health Professions Act , 1991 , S.O. 1991, c. 18. (“ RHPA ”), which makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings. He argues that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the RHPA . [22] This argument passes the “low threshold” that is the merits aspect of the test for a stay. I say that while noting that even if the trial judge erred in these rulings, it is by no means clear that this would affect her overall decision in light of her other findings. [23] I am not satisfied the irreparable harm and balance of convenience aspects of the test favour a stay. [24] The father argues that directing J.K. to live with his mother and sister deprives him of the care of his father, in whose custody he had been for years. It was also against J.K.’s expressed preferences and profoundly upsetting to him. Finally, the father submits that it will have the effect, albeit currently muted by the pandemic’s imposition of virtual school attendance, of causing J.K. to change schools, disrupting relations with his friends. [25] The difficulty with the father’s argument is that the trial judge gave detailed consideration to J.K.’s best interests and found that they required him to reside with the mother and sister, and that there be a temporary suspension, followed by a re-introduction in defined stages, of contact with the father. She considered the very matters that the father relies on; specifically, J.K.’s preferences, his attachment to his father, the emotional impact of the order she was going to make, and the schooling and social supports he had and would have. The father’s irreparable harm and balance of convenience arguments thus proceed on a different view of J.K.’s best interests than taken by the trial judge. But, on a motion to stay, the result of the trial is to be treated as prima facie correct: Circuit World , at para. 13. [26] Parenting decisions are inherently exercises in discretion: Van de Perre v. Edwards , 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13 . A trial judge’s exercise of discretion, and the factual findings in connection with it, are entitled to deference on appeal: A.M. v. C.H. , 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4. That caution is even more apposite on this sort of motion, where the opportunity to examine the record is even more limited than it will be on the appeal itself. [27] The father points to statements in the mother’s affidavit about J.K.’s difficulties in adjusting since the Order was made. But the mother’s evidence taken as a whole paints a picture of J.K.’s progress – not without bumps in the road – to building relationships with his mother and friends, accepting the benefits of counseling, and forming a strong basis for a continuing positive relationship with his father. [28] As it is almost two months since the Order was made, staying it would not preserve the status quo , but would disassemble the structure the trial judge put in place and replace it with the very circumstances she found not to be in J.K.’s best interests; it would run the risk of undoing the very benefits that the trial judge fashioned the Order to achieve. [29] Accordingly, the motion to stay is dismissed. Security for Costs [30] The mother asks for security for costs. She says that the trial judge will likely award costs of the trial in her favour, that the father was not forthcoming in his financial disclosure, and that he will likely owe her arrears of support. [31] The mother relies on r. 61.06(1)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, which provides that security for costs may be ordered where, among other things, there is good reason to believe the appellant has insufficient assets in Ontario to pay the costs of the appeal. This has not been shown. The mother’s evidence is that the father owns two properties and the trial judge found that he earns substantial income. [32] The motion for security for costs is dismissed. Conclusion [33] Both motions are dismissed. [34] So that the appeal proceeds in a timely way, I direct the father to perfect the appeal within 30 days of today’s date. The mother shall deliver her materials as a respondent to the appeal within 30 days thereafter. [35] Success on the motions was divided. No costs are ordered. “B. Zarnett J.A.” [1] There were also financial issues, including child and spousal support. [2] The mother is not permitted to change either of the children’s schools during the current 2020-2021 academic year.

COURT OF APPEAL FOR ONTARIO CITATION: Bank of Montreal v. Cadogan, 2021 ONCA 405 DATE: 20210608 DOCKET: C68958 Rouleau, Hoy and van Rensburg JJ.A. BETWEEN Bank of Montreal Plaintiff (Respondent) and Granville Cadogan, also known as Granville Nolley Cadogan also known as Granville N. Cadogan Defendant (Appellant) Granville Cadogan, acting in person Ron Aisenberg, for the respondent Heard: June 4, 2021 by video conference On appeal from the judgment of Justice David E. Harris of the Superior Court of Justice, dated November 19, 2020, with reasons reported at 2020 ONSC 7102. REASONS FOR DECISION [1] This appeal was dismissed with reasons to follow. These are our reasons. [2] The respondent bank commenced an action for damages against the appellant, who is a lawyer. The respondent alleged that the appellant made a knowingly false “law statement” under Ontario’s electronic land registration system, when he stated, in respect of a writ of seizure and sale the bank had registered against the property of the appellant’s client, Ms. Watkis, that “[a] complete, unconditional and unqualified release from the judgment creditor for this writ has been obtained”. The motion judge granted summary judgment in favour of the respondent for $63,494.04, plus $20,000 in punitive damages. [3] The appellant raises a number of arguments on appeal. [4] First, he submits that the motion judge erred in refusing an adjournment of the summary judgment motion, and then in refusing to permit his counsel to participate in the hearing. We do not give effect to this argument. [5] The appellant did not appear at the virtual hearing of the motion. Instead, a lawyer appeared on his behalf by audio only. The lawyer had no instructions other than to obtain an adjournment. She reported that the appellant was sick and could not attend. She said that she had been retained “during the emergency measures”. [6] Counsel for the respondent advised that he had received an email late the night before from a different lawyer who stated he had been retained by the appellant, and who had paid an outstanding costs award. That lawyer did not appear at the motion. The respondent’s lawyer also referred the motion judge to an unrelated matter involving the appellant in which the Law Society was dealing with a similar request for an adjournment which was denied. [7] The motion judge determined that the appellant’s request for an adjournment followed a pattern “of obfuscation and attempting to put off his day of reckoning”. The summary judgment motion had already been adjourned peremptory to the appellant eight months earlier, when the appellant served an affidavit from his former client the night before the hearing. The endorsement specified that no further adjournments would be permitted. The appellant’s lawyer was “exceedingly vague” about when she had been retained, she had not been in touch with the appellant recently, and she had no instructions other than to obtain an adjournment. There was no documentary support for the illness excuse, which would have been simple enough to obtain if it were true. [8] Whether to grant an adjournment in a civil proceeding is a highly discretionary decision, and the scope for appellate intervention is limited: Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), at para. 14 (per Laskin J.A., dissenting, but not on this point). The inquiry on appeal must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice: Toronto-Dominion Bank v. Hylton , 2010 ONCA 752, 270 O.A.C. 98, at para. 37. [9] The appellant, although asserting that the adjournment was unreasonably refused, has not pointed to any circumstance that the motion judge failed to consider. Nor does the appellant’s reference on appeal to the pandemic provide an excuse for his non-attendance at the virtual hearing. There is no basis to interfere with the motion judge’s decision to refuse an adjournment in this case. He considered all of the relevant factors and he reasonably concluded that to grant an adjournment in the circumstances would permit an abuse of the court’s process. [10] Nor would we accept the appellant’s fresh evidence on this issue. He has provided a note from a doctor, dated September 1, 2020, that states that he treated the appellant for a bout of severe pain on August 2, 2020. There is no explanation for why this note, which is dated a day before the motion date, was not produced at the time (other than a bald statement that the appellant was “unable to get a copy of the note to his counsel”). In any event, the note does not explain the appellant’s absence from court on the day of the motion, one month after he had seen the doctor, and in the circumstances would not have affected the decision to refuse an adjournment. [11] As for the argument that the motion judge refused to allow the appellant’s counsel to participate, there is simply no basis for this contention. The appellant’s counsel made it clear she had been retained only to request the adjournment, that she was not prepared to argue the motion, and indeed she left the virtual hearing after the adjournment was denied. [12] The appellant’s second argument is that the motion judge proceeded on an evidentiary record that was incomplete and deficient. We disagree. None of the arguments about alleged deficiencies that the appellant seeks to raise on appeal related to redacted documents, missing materials, lack of personal knowledge, business records and the like, have merit. There was no missing evidence, nor was evidence ignored. [13] The respondent filed evidence consisting of three affidavits and 21 exhibits. It is too late for the appellant to submit evidence now, or to argue that certain documents should have been produced by the respondent. The appellant did not serve an affidavit of documents or produce any documents. Although the motion for summary judgment was outstanding for some time, the only evidence the appellant submitted in response to the motion was the affidavit of his client, Ms. Watkis, which was considered by the motion judge. The motion judge explained why he rejected Ms. Watkis’s assertion that she had settled the bank’s judgment for $29,000, after pointing out the many inconsistencies in the affidavit, and why he accepted the respondent’s evidence to the contrary. [14] Even if there had been a settlement, it clearly had not been performed, as by her own account, Ms. Watkis had only paid $6,200 to the respondent in respect of the outstanding writ. The issue before the motion judge was whether the appellant knowingly made a false statement that “[a] complete, unconditional and unqualified release from the judgment creditor for this writ has been obtained”. [15] The appellant’s own conduct was inconsistent with any belief that there was a “release”, or that any settlement had occurred. Rather, the appellant had contacted the respondent and its counsel on two occasions shortly before the transfer of Ms. Watkis’s property, and on three occasions within weeks thereafter, regarding a payout statement or reducing the payout amount of the writ. As the motion judge noted, the appellant “made no mention of anything remotely like a settlement” between Ms. Watkis and the bank. Indeed, after the placement of the “law statement” on the registry and the transfer of the real property he sent a letter to the bank’s counsel, asking for an accounting to substantiate the amount that was required to remove the writ. [16] The motion judge’s conclusion that the appellant’s law statement on the electronic registry was false and must have been known by him to be false was fully supported by the evidence. The appellant has not demonstrated any reason to interfere with the judgment under appeal. [17] For these reasons, the appeal was dismissed. Costs to the respondent fixed at $6,650, inclusive of HST and disbursements. “Paul Rouleau J.A.” “Alexandra Hoy J.A.” “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Luangchaleun (Re), 2021 ONCA 398 DATE: 20210608 DOCKET: C68887 Doherty, Trotter and Thorburn JJ.A. IN THE MATTER OF: KEVIN LUANGCHALEUN AN APPEAL UNDER PART XX.1 OF THE CODE Ken J. Berger, for the appellant Andrew Hotke, for the Attorney General for Ontario Gavin S. MacKenzie, for the Person in Charge of Ontario Shores Centre for Mental Health Sciences Heard: June 3, 2021 by video conference On appeal against the disposition of the Ontario Review Board dated, October 13, 2020. REASONS FOR DECISION [1] The Ontario Review Board (the “Board”) ordered the appellant detained in the Ontario Shores Centre for Mental Health Sciences by order dated October 13, 2020. The appellant has been under the authority of the Board for about 11 years. Among other conditions attached to the detention order, the Board allowed the appellant to live in the community “in accommodation approved by the Person in Charge”. The appellant is presently living in an approved accommodation. In the Board’s view, residing in a controlled environment outside of the Hospital, but under the authority of the Board, offered the best hope for the appellant’s successful reintegration into the community. [2] Counsel for the appellant submits the order is unreasonable and asks this court to grant an absolute discharge, or alternatively a conditional discharge on conditions which would include a residence requirement. [3] Dr. Wong, the appellant’s treating psychiatrist, testified, that in her opinion, the appellant remained a significant threat to the safety of the public. The Board reviewed Dr. Wong’s evidence (see reasons, at paras. 20-26) and ultimately explained why they accepted her opinion (reasons, paras. 27-30). [4] In its reasons, the Board acknowledged that Dr. Wong had seen improvement in the appellant’s mental condition in 2020. However, the Board observed, that as recently as the fall and winter of 2018/19, the appellant had stopped taking his medication while living in the community and used cocaine. He had to be readmitted to the Hospital. [5] Dr. Wong testified, that if the appellant received a discharge or any other order that would not allow him to be closely supervised and monitored in the community, he would probably stop taking his medication, fall away from treatment, and relapse into substance abuse. Dr. Wong testified, that were those events to occur, the appellant would be “at high risk to engage in violent, criminal conduct”, as he had in the past. [6] It is not this court’s function to decide what disposition should have been made. The responsibility for making the decision lies with the Board. This court is charged with the responsibility of considering the reasonableness of the disposition arrived at by the Board: see R. v. Owen , [2003] 1 S.C.R. 779. [7] We cannot say that the Board’s disposition is unreasonable within the meaning of s. 672.78(1)(a). To the contrary, it rests on a reasoned acceptance of Dr. Wong’s opinion. That opinion is amply supported in the Hospital records and in Dr. Wong’s own observations. [8] The appeal is dismissed. “Doherty J.A.” “G.T. Trotter J.A.” “J.A. Thorburn J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the 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. T.J., 2021 ONCA 392 DATE: 20210608 DOCKET: C68889 Hoy, Hourigan and Zarnett JJ.A. BETWEEN Her Majesty the Queen Applicant (Appellant) and T.J. Respondent Erica Whitford and Madeline Lisus, for the appellant, the Crown Wayne A. Cunningham, for the respondent Heard: May 7, 2021 by videoconference On appeal from the sentence imposed on November 10, 2020 by Justice Alexander D. Kurke of the Superior Court of Justice. Zarnett J.A.: I. INTRODUCTION [1] As a result of a complaint to the police in 2017, the respondent was charged with sexual interference, invitation to sexual touching, and sexual assault against C.M., a child. The offences occurred on one occasion in 2010 or 2011 when C.M. and her brother were at the respondent’s home for a sleepover with his sons. At the time, C.M. was six or seven years old. [2] The trial judge found that late at night, the respondent directed C.M. into the bathroom. He took her hands and placed them on his penis. He used C.M.’s hands to rub his penis, which became aroused, telling her that “this is how you do it”. This went on for a few minutes; the respondent then told C.M. that she could put her mouth on his penis. At that point, C.M. pulled away and left the room. [3] The trial judge convicted the respondent of all three offences. He conditionally stayed the sexual interference and invitation to sexual touching convictions. On the sexual assault conviction, he imposed a sentence of 9 months in custody, followed by two years probation. He also made certain ancillary orders. [4] The Crown seeks leave to appeal the sentence arguing that the 9-month sentence failed to recognize and reflect the inherent wrongfulness and harmfulness of the respondent’s conduct and is demonstrably unfit. The Crown asks that a two-year sentence be imposed. [5] For the reasons that follow, I would grant leave to appeal and allow the appeal. The trial judge erred in principle and imposed a sentence that was demonstrably unfit. I would increase the period of incarceration to 24 months. [6] Based on the fresh evidence, it would not be in the interests of justice to reincarcerate the respondent who has completed the custodial sentence the trial judge imposed; accordingly, I would stay the execution of the additional sentence. II. The sentencing DECISION [7] In deciding an appropriate sentence, the trial judge noted several matters about the respondent and his circumstances: · he had no prior criminal record; · he was a devoted father and a supportive ex-spouse; · he had previously been arrested for the domestic assault of another woman, but the matter was diverted upon his completion of the Partner Assault Response course; · he was in a new relationship and has helped to raise two children (in addition to his children from a prior relationship); · he has a history of substance use, for which he has attended counselling; · he had been on bail for three years without any concerns; and · he had worked for his father over a lengthy period. [8] The trial judge referred to the principles in s. 718 of the Criminal Code of Canada , R.S.C., 1985, c. C-46 and in R. v. Friesen , 2020 SCC 9, 444 D.L.R. (4th) 1. He noted that C.M. was “very youthful” and “very vulnerable” vis-à-vis the respondent, who was “clearly and undoubtedly in a position of trust” over her. The trial judge also referred to the victim impact statement by C.M.’s mother which discussed the stress of court proceedings “and the difficulties that [C.M.] has faced in dealing with this incident and its sequelae…”. He also observed that the respondent had not expressed any remorse. [9] The trial judge explained that the principles of denunciation and deterrence required him to reject the defence request for a conditional sentence of 9-12 months: there was sexual interaction with a young child by a person in a position of trust. The public, quite frankly, would be shocked if a jail sentence was not imposed, but they would understand that the pro-social conduct of [the respondent] and the risks of COVID-19 in jail cannot be entirely disregarded. Proportionality has to be considered. Those factors have to be taken into account in the individualized process of sentencing. [10] The trial judge concluded that if not for “so many things that speak in [the respondent’s] favour” and COVID-19, an appropriate sentence would have been 15-24 months. However, he would not impose a sentence that would keep the respondent from resuming being a contributing member of society – that would be “crushing”. The trial judge settled on 9 months in custody, and in so doing, rejected the Crown’s request for a period of incarceration between 18 months and 3 years. III. THE PARTIES’ POSITIONS [11] The appellant argues that the trial judge: 1) failed to give meaningful effect to Friesen ; 2) improperly overemphasized mitigating factors; 3) erred in reducing the sentence based on COVID-19; and 4) imposed a demonstrably unfit sentence. [12] The appellant asks that a sentence of two years incarceration be substituted. [13] The respondent submits that the trial judge made no error of law or principle that affected the sentence and that the sentence imposed is not demonstrably unfit. He also seeks to introduce fresh evidence. The Crown does not oppose this request. The fresh evidence indicates that the respondent has completed his custodial sentence and has been granted full parole, effective February 9, 2021. The respondent submits that even if this Court increases the sentence, it should stay any additional period of incarceration, as it would not be in the interests of justice to reincarcerate him. IV. ANALYSIS A. When is Appellate Intervention in a Sentencing Decision Warranted? [14] The standard of review applied to a sentencing decision was reaffirmed in Friesen : “[A]n appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence”: at para. 26. [15] A sentence is demonstrably unfit if it is clearly unreasonable, clearly excessive or inadequate, or if it represents “a substantial and marked departure from the fundamental principle of proportionality”: R. v. Lis , 2020 ONCA 551, 152 O.R. (3d) 125, at paras. 43, 69. If a sentence is demonstrably unfit, or if the sentencing judge made an error in principle that had an impact on the sentence, we must perform our own sentencing analysis to determine a fit sentence using the applicable sentencing principles but deferring to the sentencing judge’s findings of fact and identification of aggravating and mitigating factors, except to the extent they are affected by an error in principle: Lis , at para. 44. B. Was the Sentence in this Case Demonstrably Unfit or Affected by Errors in Principle? [16] I agree with the Crown that the sentence imposed by the trial judge reflects errors in principle and was demonstrably unfit. That result follows directly from Friesen . (1) Friesen’s Message [17] In Friesen , the Supreme Court of Canada sent a strong message that: sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [Emphasis added.]: at para. 5. [18] Three parts of the message in Friesen are relevant here: (1) the importance of properly considering the wrongfulness and harmfulness of sexual offences against children in determining a proportionate sentence; (2) the priority given by Parliament to the sentencing objectives of denunciation and deterrence for these offences; and, (3) the guidance given on the length of sentences for these offences. Wrongfulness, Harmfulness and Proportionality [19] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender – this is the fundamental principle of sentencing. As Friesen explains, the wrongfulness and harmfulness of sexual offences against children are pivotal to both aspects of the assessment of proportionality: at para. 75. [20] When considering the gravity of the offence, “courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences” (emphasis added): at para. 76. [21] The inherent wrongfulness of sexual offences against children flows from the violent and exploitative nature of the conduct: any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence…Courts must always give effect to this inherent violence since it forms an integral component of the normative character of the offender’s conduct [emphasis added.]: at para. 77. [22] And, since it is always inherently exploitative for an adult to apply physical force of a sexual nature to a child, courts “must always give effect to the wrongfulness of this exploitation in sentencing” (emphasis added): at para. 78. [23] The harm caused by sexual offences against children must be weighed “in a manner that reflects society’s deepening and evolving understanding of their severity”: at para. 74. This includes considering, in addition to actual harm that may have been experienced up to the time of sentencing, the reasonably foreseeable potential harm that may only materialize later in childhood or in adulthood. To do otherwise would falsely imply that children simply outgrow the effects of sexual offences against them: at paras. 84-86. [24] These elements of wrongfulness and harm pertain as well to the offender’s degree of responsibility. Intentionally applying force of a sexual nature to a child is: highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. The fact that the victim is a child increases the offender’s degree of responsibility…the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable [1] : at paras. 88, 90. Parliament Gives Primacy to Denunciation and Deterrence [25] Section 718.01 of the Code gives priority to denunciation and deterrence over other sentencing objectives where the offence involves the abuse of children. [26] A sentence expresses denunciation by condemning “the offender for encroaching on our society’s basic code of values”; it expresses deterrence by “discouraging the offender and others from engaging in criminal conduct”. Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis , at para. 55. [27] The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence”. These other objectives may be given significant weight, but not priority or equivalency: Lis , at paras. 47-48, 53; Friesen , at paras. 101-4. [28] As the court in Friesen concluded, prioritizing the objectives of denunciation and deterrence “confirms the need for courts to impose more severe sanctions for sexual offences against children”: at para. 101. That need is directly related to the form of sanction required, as separation from society reinforces and gives practical effect to denunciation and deterrence: at para. 103. The Length of Sentences [29] To ensure that effect is given to the wrongfulness and harmfulness of sexual offences against children and Parliament’s sentencing initiatives, Friesen provided guidance about the appropriate length of sentences. To follow that guidance, upward departure from prior precedents and sentencing ranges may be required: at paras. 108-14. [30] While noting that judges must retain the flexibility to do justice in individual cases, Friesen conveyed an overall message that: mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim…: at para. 114. [31] Friesen also re-emphasized the importance of certain aggravating factors in sexual offences involving a child. It noted that abuse of a position of trust or authority should usually result in a higher sentence than one of an offender who is a stranger to the child, and that the age of the victim is a significant aggravating factor because of the length of time they must endure the consequential harm of sexual violence: at paras. 130-34. (2) The Trial Judge Made Errors in Principle That Impacted the Sentence [32] In my view, the reasons as a whole do not give the inherent wrongfulness of the conduct, its highly morally blameworthy nature, and the extent of harm caused to C.M., the centrality that Friesen demands in sentencing. Nor do the reasons give paramountcy to the principles of denunciation and deterrence. Those errors impacted the sentence and justify appellate intervention. [33] Where the overall focus of a sentencing decision is on the personal circumstances of the offender and the need for restraint, so as to underestimate the gravity of the offences and their harm, the sentencing decision is not consonant with Friesen’s message. As Spivak J.A. stated in R. v. S.A.D.F ., 2021 MBCA 22: The sentencing judge stated that the offending behaviour was serious, and referred generally to the harmful consequences of this type of abuse, and the need to send a message to protect children. However, as indicated in Friesen , it is not sufficient to simply state that sexual offences against children are serious; sentences imposed must reflect the normative character of the offender’s actions and the consequential harm. The sentencing judge spoke, at some length, about the accused’s background and the principle of restraint. Yet, there was little comment on the specifics of these offences and the circumstances under which they were committed, beyond saying that the children were very young and the accused was in a position of trust. In my view, the sentencing judge’s focus on the personal circumstances of the accused, rather than the circumstances of the offences, led her to unreasonably underestimate the gravity of the offences and the paramount principles of denunciation and deterrence: at para. 34. [34] That is what occurred here. [35] Although the trial judge referred briefly to the circumstances of the offence, C.M.’s young age, and the respondent’s position of trust, he paid particular attention to the personal circumstances of the respondent. He made a brief reference to the harm C.M. suffered, and no reference to the harm she may continue to suffer, from the inherently violent and exploitative conduct to which the respondent subjected her. Conversely, he emphasized the consequences the respondent would suffer from a significant custodial sentence. [36] The trial judge relied on the respondent’s circumstances including that he was a first offender who was supportive of and supported by his family. He also expressed a desire not to impose a sentence that would prevent the respondent from being a contributing member of society and considered the effect of the pandemic. [37] The trial judge was entitled to give “significant weight” to the sentencing principles those circumstances engage, but he was not entitled to give them priority, or even equal weight, to denunciation and deterrence: Friesen at paras. 101-4; Lis at paras. 47-48. He was also entitled to consider the pandemic as a collateral consequence, because it bears on the impact of the sentence on the offender. He was not, however, entitled to permit it to reduce a sentence to one that is disproportionate to the gravity of the offence or the moral blameworthiness of the offender: R. v. Morgan , 2020 ONCA 279, at paras. 10-11. As this court noted in R. v. Woodward , 2011 ONCA 610, 107 O.R. (3d) 81, at para. 76, the focus of sentencing an adult who has exploited an innocent child should be on the harm caused to the child and the offender’s conduct; the effects of the sentence on the offender and his prospects for rehabilitation, while warranting consideration, cannot take precedence. [38] Here, the trial judge allowed these considerations to take precedence and reduce the sentence below what was appropriate. The trial judge stated that a sentence between 15 to 24 months in custody would have been appropriate, which I take to mean appropriate given the gravity of the offence and the moral blameworthiness of the offender. But he was not prepared to impose a sentence in that range. Instead, he relied on these considerations to reduce the sentence by 15 months from the top, and 10.5 months from the midpoint, of his range – in either case by an amount greater than the length of the sentence he did impose – resulting in a sentence significantly below the low point of what he deemed appropriate. [39] The result reached by the trial judge does not comport with the guidance in Friesen as to the length of sentences. Friesen does not simply contain a list of principles and factors to be mentioned in a sentencing decision; it insists that those factors be reflected in a sentence that is of sufficient length to recognize them. I repeat Friesen’s guidance: “mid-single digit penitentiary terms for sexual offences against children are normal…substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim”: at para. 114. [40] The trial judge did not explain why the sentence he imposed could be considered substantial. He began with a range which, at its high end, was the lowest possible penitentiary term. He then imposed a sentence substantially reduced even from that range. [41] For these reasons, I conclude that the trial judge erred in principle and that the errors had an impact on the sentence he imposed. (3) The Sentence Was Demonstrably Unfit [42] A sentence may be demonstrably unfit if it was required, but fails, to respect the primacy of the sentencing objectives of denunciation and deterrence. Such a sentence is a substantial and marked departure from the principle of proportionality: Lis , at paras. 98-99. This sentence suffers from that flaw. [43] The respondent relies on R. v. R.L.S. , 2020 ONCA 338, where this court dismissed an appeal against a nine-month sentence for a 51-year-old first-time offender convicted of sexual offences against his 4 to 6 year-old daughter. [44] R.L.S. does not assist the respondent. In that case, the issue was whether the sentence was too harsh. In explaining why it was inappropriate to reduce the sentence, the court noted that the sentence was “lenient in light of the principles explained in R. v. Friesen. ”: at para. 9. The court was not required to consider the question of whether the sentence was so lenient that it was unfit – the issue here. [45] In my view, the sentence imposed was demonstrably unfit. C. What is the Appropriate Sentence? [46] The respondent’s behaviour was inherently wrongful. He abused his position of trust over a young child. His conduct included not only sexual touching but an invitation that C.M perform fellatio. It was highly morally blameworthy. His conduct was violent, exploitative, and harmful to C.M. and her family. [47] Giving priority, as is required, to the objectives of deterrence and denunciation, a substantial sentence of incarceration is required. I would set that period at 24 months. Doing so gives weight (but neither priority nor equality) to the other factors the trial judge took into account, and maintains the two-year probation order that the trial judge imposed. D. Should the Respondent be Reincarcerated? [48] As I would increase the respondent’s sentence, the controlling question becomes whether it is in the interests of justice for him to be reincarcerated : R. v. Cheng (1991), 50 O.A.C. 374 (C.A.), at para. 5. [49] I would admit the fresh evidence on this issue. The respondent has served the custodial portion of his sentence and has been released into the community by the Parole Board, in part on the basis that treatment available to him there, which will advance his reintegration, surpasses that available to him in custody, and in part based on his low risk of re-offending. These considerations, along with the likelihood of early parole if there were reincarceration and the recognition that reincarceration would impose considerable additional hardship, lead to the conclusion that the interests of justice do not require reincarceration in this case: R. v. Davatqar-Jafarpour , 2019 ONCA 353, 146 O.R. (3d) 206, at paras. 50, 53-54. V. CONCLUSION [50] Accordingly, I would grant leave to appeal, allow the sentence appeal, and substitute a custodial sentence of 24 months. The other terms of the sentence imposed by the trial judge should remain in effect. I would stay the execution of the balance of the sentence of incarceration not yet served. Released: June 8, 2021 “A.H.” “B. Zarnett J.A.” “I agree. Alexandra Hoy J.A.” “I agree. C.W. Hourigan J.A.” [1] Moral culpability may be reduced in specific cases, such as for person who suffer from mental disabilities or where systemic and background factors played a role in bringing an Indigenous person before the court: Friesen , at paras. 91-92.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Valle-Quintero, 2021 ONCA 390 DATE: 20210608 DOCKET: C66811 Watt, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Guillermo Valle-Quintero Appellant Ernest J. Guiste, for the appellant Andreea Baiasu, for the respondent Heard: May 17, 2021 by video conference On appeal from the conviction entered on August 30, 2012 by Justice Alfred J. O’Marra of the Superior Court of Justice, and from the sentence imposed on October 8, 2015 by Justice Brian P. O’Marra of the Superior Court of Justice, with reasons reported at 2015 ONSC 6164. REASONS FOR DECISION [1] The appellant was convicted of three counts of assault on his girlfriend on a number of occasions in the course of episodes of anger and jealousy. He was also found guilty of wilfully damaging her vehicle, threatening to cause her death or bodily harm, failing to comply with a condition of a recognizance, attempting to obstruct justice, and breaching a court order prohibiting communication with the complainant. Because of his criminal history, the respondent Crown brought a dangerous offender application. The appellant was ultimately found to be a dangerous offender and sentenced to an indeterminate sentence. [2] The appellant raises many grounds of appeal. Central to these is the submission of reasonable apprehension of bias. He also argues that the trial judge erred in finding that the complainant was a credible witness, and that the trial judge’s findings on the breach of recognizance count were tainted by abuse of process and jurisdictional error. In addition, he alleges that the period from the guilty verdict to the imposition of the sentence, around 37 months, was unreasonable and violated his Charter s. 11(b) rights. [3] For the following reasons, the appeal is dismissed. A. Background [4] The appellant did not testify at his trial. The charges concerned events that had taken place in 2010-2011. The trial judge found that the appellant had choked the complainant to unconsciousness, had threatened to kill her when he told her “[i]f I can’t have you, nobody can”, and that he said, having choked her, that if she had died, he could have hidden her body in the wall so that nobody could find her. The trial judge accepted that the complainant was fearful for her life. The appellant was convicted of additional counts of assault in relation to two other incidents. He also attempted to obstruct justice and violated a non-communication order when he attempted to persuade the complainant to recant her statement after his arrest. [5] Following the appellant’s conviction on the charges currently under appeal, the Crown commenced dangerous offender proceedings, and the court ordered a psychiatric assessment which was conducted by Dr. Scott Woodside. Dr. Woodside found that the appellant presented a high risk of reoffending with intimate partners due to his aggressive, controlling and jealous nature, lack of insight as to the nature of his problems, and his view of himself as a victim. B. Discussion (1) Reasonable Apprehension of Bias [6] The appellant argues that a number of factors give rise to a reasonable apprehension of bias. First, he complains that A. O’Marra J. presided over a bail review only two months prior to being nominated as the trial judge. In addition, A. O’Marra J. declined the appellant’s recusal motion after he refused to permit the appellant to sit at the counsel table after the appellant resiled from his earlier willingness to do so with ankle shackles on. [7] In oral submissions, the appellant’s counsel concentrated on the fact that A. O’Marra J. stepped down after pronouncing the verdict in light of the Crown’s intention to pursue a dangerous offender application, announcing that the sentencing proceedings would be taken over by B. O’Marra J. The appellant submits that this raises a reasonable apprehension of bias because the two are in fact related to one another as first cousins. We disagree. [8] First, there is a strong presumption of judicial integrity and impartiality that the appellant has not displaced: see Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) , 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 25. Presiding over a bail review and seeing an accused’s criminal record does not disqualify a judge from presiding over a trial. Judges (as they regularly do in voir dire proceedings, for example) are expected and able to disabuse themselves of any prejudicial evidence that they might otherwise have encountered. [9] Nor does the trial judge’s refusal of the defence request that the appellant be permitted to sit at the counsel table disclose any reasonable basis for an apprehension of bias. [10] Further, there was no basis to suspect that there was anything improper about continuing the proceedings before a different judge: see Criminal Code , ss. 669.2(1) and (2). The trial judge explained that he was committed to conducting long civil trials but that the sentencing would be conducted by B. O’Marra J. as he had availability. Nothing in these circumstances gives rise to any basis for the appellant’s request for disclosure from the Crown regarding the matter, quite apart from the fact that pursuant to the principle of judicial independence, judges are not affiliated with the prosecution and cannot be seen or treated as belonging to a Crown agency. There is no merit to this ground of appeal. (2) The Findings on Conviction [11] We do not agree with the appellant’s submissions that the trial judge erred in finding that the complainant was credible and that the police investigation was adequate. These issues were also raised at trial and rejected by the trial judge in thorough reasons. The trial judge was alive to all the reasons for which the appellant submitted that the complainant’s evidence should be rejected. He found her to be credible, and given the record before him, it was open to him to do so. We see no merit in the appellant’s submission that the investigation was inadequate. [12] The trial judge also rejected the submission that the appellant had not known about the non-communication order, referring to a transcript of the bail hearing at which the order was imposed which confirmed that duty counsel had explained it to him. The trial judge found that the appellant had fully understood the prohibition. During the abuse of process application brought by the appellant after the trial, he requested a stay on this count, arguing that there was a lack of knowledge of the non-communication order. We see no error in the trial judge’s findings or his refusal to enter a stay on this count. (3) The s. 810.2 ground [13] The submission that the condition ordered was made without jurisdiction and constituted an abuse of process is without merit. [14] The appellant had been subject to a condition in his recognizance, granted under s. 810.2 of the Criminal Code , not to enter into any relationship or romantic relationship with a female until that person has been identified to the Toronto Police Service and there had been an opportunity provided to inform that person of the appellant’s criminal history. Count seven charged that the appellant had breached the recognizance by entering into a romantic relationship with the complainant without giving the police an opportunity to inform her of the appellant’s criminal history. This count was dealt with separately after the trial. [15] The appellant had a criminal record that included abduction and serious acts of violence against former romantic partners. One of these resulted in a charge and conviction for attempted murder in 1999. While incarcerated, the appellant underwent a number of psychological assessments which indicated that he presented a high risk for violent recidivism with a partner in an intimate relationship. A similar condition to report romantic relationships was initially imposed when he was granted a conditional release in October 2006. [16] The appellant’s warrant expiry date was August 13, 2010. Prior to that, he was observed getting out of a car driven by a woman. The appellant denied that he was in a relationship with the woman. He was reminded of the condition about reporting any new relationships, but he did not provide her identity or any further information that would allow officers to follow up and ensure that there was no relationship. His probation and parole supervisor contacted the Toronto Police Service to prepare for a s. 810.2 application to have the appellant bound by terms of a recognizance, including a condition that he advise the police of any new intimate relationships, because of the concerns related to his behaviour and high risk assessment for violence against female partners. [17] On appeal, the appellant argues, as he did at trial, that the condition was imposed without jurisdiction and constituted an abuse of process. The trial judge dismissed the appellant’s abuse of process application and entered a conviction on count seven. As the trial judge noted, the seeking of a s. 810.2 order is governed by a process that is authorized by statute. Here, although the police could have arrested the appellant under the warrant, the Crown chose a less intrusive route by issuing a summons. Had they arrested him under the warrant that had been taken out, he would have had to be held in custody pending a bail hearing because the Crown had not been prepared for a s. 810.2 hearing but wanted similar conditions to be imposed in the meantime. Horkins J. deemed the warrant executed and granted the recognizance which included the condition. [18] We agree with the trial judge that there was no misconduct or abuse of process, and finding otherwise could have the effect of compelling the police in any s. 810.1 or s. 810.2 application to arrest subjects under warrant in order to compel a bail hearing and a detention or release subject to conditions. (4) The Dangerous Offender Finding and the Imposition of the Indeterminate Sentence [19] The appellant argues that the sentencing judge erred in finding the appellant to be a dangerous offender. His first argument is that Dr. Woodside’s assessment report was filed late, beyond the statutory deadlines under s. 752.1 of the Criminal Code , and as such the dangerous offender designation must be set aside. We disagree. It is clear from the discussions between the sentencing judge and the parties that the 60-day assessment period began on October 28, 2013, the report would have been due on January 27, 2014, the time to file was extended on January 27, 2014 until January 31, 2014 which is permitted under s. 752.1(3), and the report was received on January 31, 2014, within the statutory time limits. [20] Alternatively, he argues that the sentencing judge erred in failing to consider whether he should be designated as a long-term offender prior to being designated as a dangerous offender in accordance with R. v. Johnson , [2003] 2 S.C.R. 357. This argument fails because the 2008 amendments removed the exercise of discretion at the designation stage. Section 753(1) now states that the court shall find the offender to be a dangerous offender if the statutory criteria are met. Here, the sentencing judge found that those criteria as set out in s. 753(1)(a)(i) and (ii) of the Criminal Code were met. There were ample grounds for the sentencing judge’s findings that the past and index offences of domestic violence constituted a pattern of repetitive and persistent aggressive behaviour under those sections, and he set out the common elements in detail. [21] We also disagree with the submission that the sentencing judge erred in failing to consider the “intractability” requirement as set out in R. v. Boutilier , 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 27, 29-32 and 46. Although the sentencing judge did not have the benefit of Boutilier and did not use the word “intractable”, he carefully considered s. 753(1)(a) and applied it to the record before him. He considered the appellant’s recidivism, his refusal to abide by supervision conditions and his resentment of those conditions, as well as Dr. Woodside’s opinion that the appellant presented “a high risk for violent re-offence involving intimate partners”. The sentencing judge found “no reason to believe that he would restrain his behaviour in the future”. In short, the sentencing judge’s reasons satisfy the Boutilier requirement that the conduct of a person designated as a dangerous offender must be “intractable”. [22] We would not disturb the sentencing judge’s imposition of an indeterminate sentence. The sentencing judge found that based on the evidence before him, a measure less than an indeterminate sentence would not adequately protect the public, and more particularly, any future intimate partners of the appellant. This was an appropriate conclusion, especially in light of Dr. Woodside’s evidence that he was pessimistic regarding the appellant’s future manageability within the community, even if strict conditions were put in place and the appellant agreed to follow through with conditions and treatment. (5) Post-Verdict Delay [23] Finally, we do not agree that the appellant’s Charter s. 11(b) rights were breached as a result of the delay of 37 months between the conviction and the imposition of sentence. The appellant relies on R. v. Charley , 2029 ONCA 726, 147 O.R. (3d) 497, which set a five-month ceiling applicable to the period between conviction and sentence, as well as R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631. [24] We do not accept this submission. First, in Charley , this court observed that dangerous or long-term offender proceedings under Part XXIV of the Criminal Code are properly characterized as exceptional in the sense that they are “reasonably unavoidable” after the Crown has determined that a designation should be sought, but the Crown still has an obligation to mitigate any resulting delay: at para. 98. A dangerous offender application is an exceptional circumstance that may justify delays above the ceiling set out in Charley : see e.g. R. v. McLean , 2020 ONSC 1931, at paras. 12-18; R. v. J.T ., 2021 ONSC 365, at para. 32. Second, the entire post-verdict proceedings took place before the release of Charley . For that reason, as this court noted in Charley , at para. 105, the transitional exceptional circumstances as set out in Jordan also apply to post-verdict delay. The appellant made no submissions on the application of transitional exceptional circumstances. [25] The appellant has not, therefore, established that in the circumstances of this case, his s. 11(b) rights have been breached. C. Disposition [26] For these reasons, the appeal is dismissed. “David Watt J.A.” “M.L. Benotto 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. 486.5(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. Whalen, 2021 ONCA 397 DATE: 20210608 DOCKET: C64938 Doherty, Trotter and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Roseanne Whalen Appellant Peter Copeland, for the appellant Tracy Kozlowski, for the respondent Heard: May 31, 2021 by video conference On appeal from the conviction on a charge of second degree murder on April 8, 2014, after a trial by a jury presided over by Justice Robert B. Reid of the Superior Court of Justice. REASONS FOR DECISION [1] Two-year-old Marissa, the appellant’s daughter, was repeatedly assaulted over many days, and perhaps weeks, by Rainbow Hill, the appellant’s girlfriend. Eventually, Rainbow killed Marissa. She subsequently pled guilty to second degree murder. [2] Although there was no evidence the appellant physically assaulted Marissa, she was charged with second degree murder. The Crown alleged the appellant caused Marissa’s death by failing in her duty as a parent to protect Marissa from the physical abuse repeatedly perpetrated against her by Rainbow. The Crown alleged the appellant did so with the state of mind required for murder under s. 229(a)(ii) of the Criminal Code . [3] The jury convicted. The trial judge imposed a sentence of life imprisonment without eligibility for parole for 15 years. The appellant appeals conviction only. [4] After hearing oral argument, the court dismissed the appeal with reasons to follow. These are the reasons. (1) The Crown’s Closing Argument [5] Counsel for the appellant submitted, that because of the evidence heard by the jury, there was a real risk the jury could allow their empathy for the very young victim, and their disgust with the conduct of the appellant and Rainbow, to  overwhelm their obligation to objectively and rationally assess the evidence in accordance with the legal principles provided by the trial judge. Counsel contends some of the arguments made by the Crown and the language used by the Crown in his closing jury address substantially increased the risk of a verdict based on an emotional response to the evidence. Counsel argues that the Crown’s closing address resulted in an unfair trial and a miscarriage of justice. [6] At trial, the defence sought to depict the appellant as a person of limited intelligence who was manipulated, victimized and abused by Rainbow. In his closing address, Crown counsel made a vigorous and repeated attack on the viability of that defence. [7] In the main, Crown counsel’s submissions remained within the boundaries of proper advocacy. For example, the Crown’s argument that the evidence showed the appellant to be a cunning and streetwise liar was in direct response to the portrayal of the appellant presented by the defence. The Crown’s characterization found support in the evidence. Whether the Crown’s argument would ultimately carry the day, was for the jury to decide. [8] Crown counsel did use strong language at times in his closing argument. In many circumstances, that language accurately reflected the state of the evidence. Some of Crown counsel’s comments, however, were arguably overly dramatic, and potentially inflammatory. The Crown also misstated the evidence of one witness, although the evidence was far from central to the case. [9] We are satisfied that any shortcomings in Crown counsel’s closing did not put the fairness of this trial at risk. There was no objection to Crown counsel’s closing and no request that the trial judge address in his instructions to the jury any of the remarks made by Crown counsel. (2) The Instruction on the Mens Rea Required for Murder [10] The Crown relied on s. 229(a)(ii). The mens rea of murder under that section has three components: · the appellant must have intended to cause bodily harm to Marissa; · the appellant must have known the bodily harm was likely to cause Marissa’s death; and · the appellant must have been reckless as to whether death ensued. [11] Counsel for the appellant argues that Crown counsel wrongly described the mens rea component of s. 229(a)(ii) in his closing argument, and that the trial judge’s instructions did not adequately correct the misapprehension created by Crown counsel’s closing. [12] In his closing argument, Crown counsel referred to the necessary intent required under s. 229(a)(ii) as “recklessness”. He then went on to argue that the appellant had the necessary intent for several reasons. Counsel submitted, the appellant knew Rainbow presented a “clear and present danger to Marissa”. Crown counsel further argued that the appellant was present virtually every time Rainbow assaulted Marissa. Next, the Crown contended the appellant made no attempt to intervene or protect Marissa in the face of those repeated beatings. Finally, the Crown submitted the appellant’s conduct showed she knew Rainbow would kill Marissa. All of the Crown’s submissions were grounded in the evidence. [13] Crown counsel’s reference to the necessary intent as “recklessness” was, as a matter law, incorrect. Crown counsel was not, however, purporting to instruct the jury on the law. He made it clear to the jury they would take their legal instructions from the trial judge. Crown counsel was making submissions as to the factual findings, which he urged the jury to make to justify a finding the appellant had the necessary mens rea for murder. Considered in that context, Crown counsel’s submissions were neither inappropriate nor misleading. [14] The trial judge referred to the mens rea requirement in s. 229(a)(ii) several times in the course of his instructions. In his first reference, the trial judge wrongly told the jury that the requirement the appellant know the bodily harm was likely to cause death and the requirement of recklessness as to whether death ensued were alternative requirements. Both are required to establish the required mens rea under s. 229(a)(ii). [15] The trial judge, however, correctly outlined the mens rea required in several subsequent passages in his instructions to the jury. The first correct reference to the required mens rea appears in the sentence immediately following the sentence containing the error. The trial judge correctly put the mens rea requirement to the jury three times in the page and one-half of transcript following his initial misstatement of the mens rea . [16] In addition to the repeated correct oral instructions, the jury had the trial judge’s instructions in writing. The required mens rea was accurately set out in those instructions. [17] There was no objection to the trial judge’s instructions on s. 229(a)(ii). [18] In any event, the recklessness component of s. 229(a)(ii) was essentially surplusage on the facts of this case. If the jury was satisfied the appellant intended to cause Marissa bodily harm by failing to protect her from the repeated serious assaults inflicted by Rainbow, and if the jury was satisfied the appellant knew those assaults were likely to cause Marissa’s death and did not intervene, as she was obligated to do, the jury would inevitably have found the appellant to have been reckless as to whether Marissa died as a result of the assaults. (3) The Trial Judge’s Review of the Evidence Relating to the Appellant’s Mens Rea [19] Trial judges are required to relate the relevant evidence to the issues raised in the case. Counsel for the appellant submits the trial judge was obligated to refer to certain text messages when outlining the evidence relevant to the mens rea issue. Those text messages passed between the appellant and Rainbow in the few days immediately preceding Marissa’s death. [20] The content of the text messages cut both ways. Parts were potentially inculpatory and parts were potentially exculpatory. While the trial judge did not refer to the specific passages put forward on appeal, he did refer to the text messages in a more general way in his instructions. [21] Trial judges are not obligated to refer to all of the evidence that may have relevance to an issue at trial. Certainly, the trial judge could have referred to the passages from the text messages relied on by the appellant. He probably would have done so, had he been asked to do so at trial. His failure to do so does not constitute reversible error. [22] In holding that the failure to refer to the text messages did not constitute reversible error, we place significance on the position of the defence at trial. Counsel fully and forcefully argued the case for the appellant at trial. There is no suggestion the appellant was not properly represented. Trial counsel did not ask the trial judge to specifically refer to the parts of the text messages which are now put forward as crucial to an understanding of the appellant’s position with respect to mens rea . [23] When considering what evidence should be related to the various issues, trial judges are entitled to look to counsel for assistance in identifying the parts of the evidence which counsel regard as crucial to a proper understanding of their position on any issue. If, as the appellant now contends, one piece of evidence is crucial to an understanding of the defence case, one would expect trial counsel to say so. Trial counsel does not appear to have viewed the passages from the text messages as nearly as significant as does appellate counsel. We cannot say he was wrong in that assessment. [24] The trial judge adequately dealt with the evidence relevant to mens rea and did so in an even-handed manner. (4) The Instruction on the After-the-Fact Conduct [25] The trial judge instructed the jury that the appellant’s conduct after Marissa’s death could constitute circumstantial evidence of the appellant’s guilt. He identified three parts of the evidence as potentially after-the-fact conduct: · the appellant’s participation in the attempts to prevent the first responders from seeing Marissa when they attended at the apartment in response to the 9-1-1 call; · the appellant’s participation in the burying and then re-burying of her daughter; and · the appellant’s attempts to keep Marissa’s death secret. [26] The trial judge instructed the jury, at some length, on the proper approach to be taken to evidence of after-the-fact conduct. He stressed, that while an inference of guilt could be drawn, the jury must be careful to consider all other possible inferences first. He further instructed the jury that even if the appellant was motivated by “feelings of guilt”, those feelings could be attributable to “something other than the offence with which she is now charged”. [27] In the course of his instruction on the requisite mens rea , the trial judge instructed the jury that the evidence which he had earlier outlined as after-the-fact conduct was relevant to the issue of intent. The trial judge did not go into any more detail. [28] The trial judge vetted his jury instructions with counsel before giving the jury those instructions. Counsel were content with the after-the-fact instruction. On appeal, counsel argues the trial judge was required to go into considerably more detail with the jury as to the possible uses and the prohibited uses of that evidence. [29] The appellant was not prejudiced by the manner in which the trial judge approached the after-the-fact conduct evidence. That evidence, particularly as it related to the appellant’s involvement in the burial and re-burial of her daughter, was potentially powerful evidence of the appellant’s mens rea . A more detailed instruction as to how the jury might use that evidence to infer the requisite mens rea could only have hurt the defence position. That no doubt explains why the defence was satisfied with the proposed instructions and did not request any further instruction on the use of the evidence the trial judge had identified as evidence of after-the-fact conduct. The instructions were adequate and did not prejudice the appellant. Conclusion [30] The appeal is dismissed. “Doherty J.A.” “G.T. Trotter J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 1062484 Ontario Inc. v. McEnery, 2021 ONCA 129 DATE: 20210302 DOCKET: C68190 and C68191 Roberts, Zarnett and Sossin JJ.A. DOCKET: C68190 BETWEEN 1062484 Ontario Inc. Plaintiff (Appellant) and Williams McEnery, Williams Litigation Lawyers and Paul McEnery, by his litigation guardian, the Public Guardian and Trustee Defendants (Respondents) DOCKET: C68191 AND BETWEEN 1770650 Ontario Inc. Plaintiff (Appellant) and Williams McEnery, Williams Litigation Lawyers and Paul McEnery, by his litigation guardian, the Public Guardian and Trustee Defendants (Respondents) Christine G. Carter, for the appellants Stephen Cavanagh and Robin S. Brown, for the respondents Williams McEnery and Williams Litigation Lawyers No one appearing for the respondent Paul McEnery Heard: January 26, 2021, by video conference On appeal from the judgments of Justice Robyn M. Ryan Bell of the Superior Court of Justice, dated February 7, 2020, with reasons reported at 2020 ONSC 825, 1 B.L.R. (6th) 120, and from the costs order, dated June 22, 2020, with reasons reported at 2020 ONSC 3861. REASONS FOR DECISION OVERVIEW [1] This is a consolidated appeal from two summary judgments, both dated February 7, 2020, with additional reasons on costs, dated June 22, 2020. [2] The motion judge heard summary judgment motions in two actions against the respondents, one brought by the appellant 1062484 Ontario Inc. (“106 Ontario”) and one by the appellant 1770650 Ontario Inc. (“177 Ontario”). Both appellants were represented by the same counsel on the motions and the motion judge’s reasons dealt with both actions. [3] The respondent Williams McEnery, now known as Williams Litigation Lawyers (the “Firm”), is a law firm located in Ottawa focusing on civil litigation. [4] The respondent Paul McEnery (by his litigation guardian, the Public Guardian and Trustee) was a lawyer who shared space with the Firm. Mr. McEnery’s practice included corporate law, commercial law, real estate, and estates law. [5] In the first action, the appellant 106 Ontario claimed that a related company dealt with Mr. McEnery and as a result loaned $420,000 in March 2015, of which $400,000 was repaid, and $360,000 in September 2015, none of which was repaid. 106 Ontario claims that the loans were made not just to Mr. McEnery but to the Firm because Mr. McEnery was dealing as, or was held out to be, a partner of the Firm. It sues for recovery as the assignee of the outstanding debt. [6] In the second action, the appellant 177 Ontario alleged that, as a result of dealings with Mr. McEnery, in September 2015 it provided $241,000 to be used to pay off and discharge a mortgage. The mortgage remains registered on title. 177 Ontario seeks to recover the amount advanced as well as additional costs incurred to maintain the mortgage in good standing from both Mr. McEnery and the Firm because it alleges that he was dealing as, or was held out to be, a partner of the Firm. [7] The motion judge granted summary judgment in favour of the appellants as against Mr. McEnery. [8] However, the motion judge dismissed the appellants’ motion for summary judgment as against the Firm. [9] The motion judge also granted summary judgment in favour of the Firm, dismissing the appellants’ actions as against the Firm. [10] Each appellant appeals the motion judge’s disposition of its respective summary judgment motion on substantially the same grounds. [11] For the reasons that follow, we dismiss the appeal. THE MOTION JUDGE’S DECISION [12] The motion judge found there was no genuine issue requiring a trial with respect to Mr. McEnery’s liability, granting summary judgment against him in favour of the appellants for the outstanding debts. [13] The motion judge also found no genuine issue requiring a trial with respect to the Firm’s liability and granted summary judgment in favour of the Firm. [14] Specifically, the motion judge found that Mr. McEnery was not a partner of the Firm and that the respondents “conducted two distinct businesses.” As a result, the Firm was not liable for actions of Mr. McEnery under ss. 11 or 12 of the Partnerships Act , R.S.O. 1990, c. P.5. [15] The motion judge based this finding on a close reading of the record, including: the Firm’s partnership agreement, which expressly stated that Mr. McEnery was not a partner of the Firm; law society filings; bank account and accountant’s records; and other documentary evidence. She stated, at para. 67: There is compelling evidence that the [respondents] were not carrying on a business in common. Mr. McEnery and the [Firm] shared office space for many years in an office building owned by Mr. McEnery and Mr. Williams personally. Mr. McEnery paid his share of the common overhead expenses. However, Mr. McEnery and the [Firm] had separate offices, separate trust accounts, separate employees, and separate filing and computer systems. Mr. McEnery had his own chartered accountant. He had his own financial statements, separate from those of the [Firm]. The [Firm] and Mr. McEnery maintained their respective trust accounts at different financial institutions. [16] Further, the motion judge found that, since no credit was given to Mr. McEnery in reliance of his being allegedly held out as a partner of the Firm, liability under s.15 of the Partnerships Act could not be established. ANALYSIS [17] We begin with the standard of review. Absent an extricable error of law, which would be reviewable on a correctness standard, deference is owed to findings on a summary judgment motion. Decisions as to whether there are genuine issues for trial are questions of mixed fact and law which will not be disturbed absent a palpable and overriding error: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 81-84. [18] We see no such errors. The liability issue [19] The motion judge considered two different pathways under the Partnerships Act for holding the Firm liable for the appellants’ losses. [20] First, she considered whether Mr. McEnery was a partner of the Firm. Under s. 11 of the Partnerships Act , a firm may be held liable for the wrongful act or omission of a partner. Under s. 12, a firm may be liable for a partner’s misapplication of money or property received for or in custody of the firm. [21] After a thorough assessment of the parties’ objective intentions, the motion judge found that Mr. McEnery was not a partner of the Firm, and that the Firm was not liable for the actions of Mr. McEnery. [22] The appellants’ principal argument regarding this pathway is that the motion judge misconstrued the test for a “business in common” when she stated, at para. 74: The fact that parties hold themselves out as partners may be evidence of their intention to carry on business in common under a partnership, but this alone would not have the effect of validating the existence of a partnership ( Continental Bank , at para. 36). A court may find the existence of a partnership, notwithstanding express statements between the partners to the contrary, on the basis of the partnership’s dealings with third parties, but only if other partnership indicia are present ( Elbow River , at para. 86, citing Alison R. Manzer, A Practical Guide to Canadian Partnership Law , loose-leaf (Aurora, Ont.: Canada Law Book, 1994- (October 2011 release consulted) at para. 2.340). [23] The appellants submit that the motion judge erred in this statement of the principle. They argue that if individuals present to the world a common business enterprise with a view to profit, then this may be sufficient to constitute a partnership. [24] We do not find any error in the motion judge’s statement of the law from Continental Bank Leasing Corp. v. Canada , [1998] 2 S.C.R. 298 . [25] The appellants also contend that the requisite indicia set out in Continental Bank were in fact present. They focus on the definition of a partnership in s. 2 of the Partnerships Act , which has three elements: (a) a business; (b) carried on in common; (c) with a view to profit. [26] The indicia which the appellants say show that Mr. McEnery and the Firm carried on business in common with a view to profit largely involve how the Firm held out Mr. McEnery to third parties. Those alleged indicia include the following: · the Firm name was “Williams McEnery”; · the Firm’s Facebook page and website referred to Mr. McEnery as a “founding partner”; · the Firm had a single reception area with a single receptionist; · the Firm’s letterhead contained no indication that Mr. Williams and Mr. McEnery were not partners; and · the appellant 177 Ontario was directed to make cheques payable to “Williams McEnery.” [27] We would not give effect to this argument. We are satisfied that the motion judge committed no palpable and overriding error in her identification and application of the test as to whether Mr. McEnery was a partner of the Firm. Her finding that Mr. McEnery and the Firm were not carrying on a business in common is one of mixed fact and law and thus entitled to deference. [28] The second pathway to liability considered by the motion judge concerned the Firm’s alleged holding out of Mr. McEnery as a partner within the meaning of s. 15(1) of the Partnerships Act . [29] Section 15(1) of the Partnerships Act provides: Every person, who by words spoken or written or by conduct represents himself or herself or who knowingly suffers himself or herself to be represented as a partner in a particular firm, is liable as a partner to any person who has on the faith of any such representation given credit to the firm, whether the representation has or has not been made or communicated to the persons so giving credit by or with the knowledge of the apparent partner making the representation or suffering it to be made. [30] In applying s. 15(1) to this case, the motion judge followed the approach taken by Corthorn J. in Dawson v. Halpenny Insurance Brokers Ltd. , 2017 ONSC 4487 . Under that approach, the appellants would first be required to establish that Mr. McEnery and the Firm held themselves out to the public as partners. Second, the onus would shift to the Firm to show that the Firm and Mr. McEnery clearly conveyed to the public that they were not partners. Third, even if the first two steps favoured the appellants, they would still need to show that they gave credit to Mr. McEnery based on his being held out as a partner of the Firm to the public. [31] The motion judge focused her analysis on the third step in this framework, namely whether the appellants had subjectively relied on their belief that Mr. McEnery was a partner with the Firm in their respective dealings with him. Following the approach in Dawson , the motion judge reasoned that the first two steps in the framework would only be relevant if the appellants could meet the subjective portion of the test for holding out. [32] As the motion judge acknowledged, there was evidence in the record that the decision-makers for the businesses involved in the impugned transactions relied on their belief that Mr. McEnery was a partner of the Firm. One of those decision-makers gave evidence that he and his wife “took comfort” in the fact Mr. McEnery was part of the Firm, while the other stated that he would not have given their business to Mr. McEnery had he realized Mr. McEnery was a sole practitioner. [33] However, the motion judge did not accept this evidence. She referred to the former statement, at para. 104, as “little more than a bare allegation” and to the latter, at para. 107, as “bootstrapping evidence”. [34] We see no basis on which to interfere with the motion judge’s findings of fact on this issue. [35] For this reason, the appellants’ appeal of the motion judge’s finding that the Firm was not liable fails. The “boomerang” order issue [36] The appellants argue the motion judge erred by granting summary judgment in favour of the Firm when the Firm had not brought a cross-motion seeking such relief. This situation is commonly referred to as a “boomerang” order; the party that brought a motion for summary judgment ends up with a summary judgment order against itself. [37] The motion judge relied on several cases in which this court has held that a motion judge has authority to grant summary judgment in a party’s favour where no cross-motion has been filed, including: Meridian Credit Union Limited v. Baig , 2016 ONCA 150 , 394 D.L.R. (4th) 601, at para. 17 , leave to appeal to S.C.C. refused, (2017) 46 C.B.R. (6th) 3, 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 . [38] The motion judge properly also considered Drummond v. Cadillac Fairview Corporation Limited , 2019 ONCA 447, where a boomerang order was found inappropriate. She found that the factors which made a boomerang order inappropriate in Drummond were not present in this case. [39] Based on the record in this case, the motion judge held, at para. 31: There is no unfairness to the plaintiffs in the other actions against Mr. McEnery and the [Firm]. None of those plaintiffs has moved for summary judgment. Some of their counsel have participated in case conferences dealing with the scheduling of these motions. Like the plaintiffs before me, the plaintiffs in the other actions were, effectively, on notice that the plaintiffs’ motions might be unsuccessful, and summary judgment could be ordered in the [Firm’s] favour. As the [Firm] put it in its written supplementary submissions on this issue, “[a]ny risk of contrary findings regarding the plaintiffs’ primary allegation of actual partnership is present regardless of the [Firm’s] request for a boomerang order.” There is no risk of contrary findings regarding the issue of whether the [Firm] is liable pursuant to s. 15(1) of the Partnerships Act , R.S.O. 1990, c. P.5 for holding Mr. McEnery out as a partner because that issue is factually specific to each plaintiff who has alleged detrimental reliance. [40] We find no error in the motion judge’s application of the case law on summary judgment. The motion judge found that summary judgment was a “timely, affordable, and proportionate procedure” in this case. We see no basis on which to disturb that finding. The costs issue [41] The motion judge awarded the Firm its partial indemnity costs against the appellants in the respective amounts of $35,751.58 and $20,646.64. She granted the appellants each their partial indemnity costs against Mr. McEnery in the amount of $1,250. However, she declined to make a “ Sanderson” costs award, which would have required Mr. McEnery to pay the Firm’s costs, concluding in her costs endorsement that such an award “would not be just or fair in the circumstances of this case.” [42] The appellants seek leave to appeal the amount of the costs award against Mr. McEnery and submit the motion judge erred in failing to issue a Sanderson order. They say the motion judge erred in depriving them of their costs of the motion and the action against Mr. McEnery and argue it was “fair and reasonable” to hold Mr. McEnery responsible for the Firm’s costs because those costs were incurred as a result of Mr. McEnery’s misconduct and refusal to consent to judgment. [43] While we would grant leave, we would not give effect to these submissions. [44] There is no basis on which to interfere with the quantum of the motion judge’s costs order against Mr. McEnery. While low, we see no error in the motion judge’s exercise of her discretion in the circumstances of this case as detailed in her costs reasons. [45] With respect to the appellants’ second argument, this court set out the circumstances which warrant a Sanderson or “Bullock” costs order in Moore v. Wienecke , 2008 ONCA 162, 90 O.R. (3d) 463. Unless “plainly wrong”, costs awards are not to be set aside: Moore , at para. 40. In Moore , MacPherson J.A. reiterated, at para. 45, that a court’s determination of whether to grant a Sanderson order is discretionary. [46] The motion judge identified and applied the test for a Sanderson costs order as set out in Moore . The appellants’ submissions on appeal largely mirror those the motion judge considered and rejected in her costs endorsement. [47] Accordingly, we find no basis on which to interfere with the motion judge’s exercise of discretion on the costs issue. CONCLUSION [48] For the reasons set out above, the appeal is dismissed [49] The respondent Firm is entitled to its costs. By agreement of the parties, costs are fixed at $11,500.00, all inclusive. “L.B. Roberts J.A.” “B. Zarnett J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 9383859 Canada Ltd. v. Navaratnam, 2021 ONCA 210 DATE: 20210401 DOCKET: M52312, M52313, and M52314 (C68695) Paciocco J.A. (Motions Judge) BETWEEN 9383859 Canada Ltd. Plaintiff (Appellant/Responding Party) and Kubeskaran Navaratnam, Ronald Lachmansingh and Marilyn Reiter Nemetz Defendants (Respondents/Moving Parties) and Musab Saeed, Mian Imran Saeed, Nirmalarajah Gunarajah, Viveka Ramesh, Mohinder Sansoye, Ramesh Senthilnathan Defendants M. Scott Martin, for the moving party Marilyn Reiter Nemetz (M52312) James R.G. Cook, for the moving party Kubeskaran Navaratnam (M52313) Bronwyn M. Martin, for the moving party Ronald Lachmansingh (M52314) Sandeep Singh, as representative of the responding party Heard: March 29, 2021 by video conference ENDORSEMENT OVERVIEW [1] The moving parties, Kubeskaran Navaratnam, Ronald Lachmansingh, and Marilyn Reiter Nemetz, each bring motions pursuant to r. 61.06(2) to dismiss an appeal brought by 9383859 Canada Ltd., (“938”) from the August 17, 2020 decision of C.J. Brown J. (the “Motion to Strike Order”) on the basis that 938 has failed to comply with the order for security for costs made by Pepall J.A. on December 11, 2020 (the “Security for Costs Order”). The Security for Costs Order required 938 to post security for costs of the appeal in the sum of $15,000 by January 22, 2021. It is not disputed that 938 has not paid this amount into court. [2] For reasons that follow, it is in the interests of justice to grant the moving parties’ motions and dismiss 938’s appeal, bearing court file number C68695 (the “Main Appeal”). MATERIAL FACTS [3] The actions underlying the instant motions arose from a failed real estate transaction and assignment of an agreement of purchase and sale (the “APS”). 938 was the original purchaser and assignor of the APS. [4] More than two years after the deal fell through, 938 sued the moving parties, who are all lawyers involved in the failed transaction or related litigation. None of the moving parties acted for 938 in connection with the APS: Ms. Reiter Nemetz acted for the vendor; Mr. Navaratnam acted for the assignee, Musab Saeed, on the transaction; and Mr. Lachmansingh acted for Mr. Saeed in related litigation The Motion to Strike Order [5] On August 17, 2020, pursuant to rule 21.01(1)(b), C.J. Brown J. issued the Motion to Strike Order, which dismissed 938’s actions, without leave to amend, as disclosing no reasonable cause of action. In her reasons, C.J. Brown J. found, inter alia , that none of the moving parties owed a legal duty to 938 that could support legal action, that Mr. Lachmansingh had absolute immunity to the claims made against him, and that all the actions were statute-barred and an abuse of process. [6] As indicated, 938 has appealed the Motion to Strike Order to this court in the Main Appeal. The Security for Costs Order [7] On December 11, 2020, Pepall J.A. granted leave to 938’s sole director and shareholder, Sandeep Singh, to represent 938 on the Main Appeal. She also issued the Security for Costs Order, which required 938 to post security in the amount of “$5,000 per lawyer” before January 22, 2021 The panel review and extension motions [8] Rather than comply, 938 attempted to file materials for a panel review of the Security for Costs Order but failed to do so within the required four-day period. 938 then brought a motion for an order extending the time to file materials for the panel review. [9] On March 9, 2021, van Rensburg J.A. denied the motion for extension of time as contrary to the interests of justice (the “Extension Denial Decision”). On March 22, 2021, 938 filed a request for a panel review of the Extension Denial Decision, evidently in hopes of re-opening the door to persuade a panel to set aside or vary the Security for Costs Order. [10] While 938 is seeking this domino of rulings, the date set for the Main Appeal is approaching; it is currently scheduled to be heard on May 19, 2021. ANALYSIS [11] In Virc v. Blair (2016), 134 O.R. (3d) 795 (C.A.), at paras. 4-5, Juriansz J.A. agreed with the proposition that “[o]nce a failure to comply with an order to pay security for costs is established, the ‘onus then shifts to the appellant to provide compelling reasons why dismissal is not in the interests of justice’”. [12] It is not disputed that 938 has failed to comply with the Security for Costs Order. I find that 938 has not provided compelling reasons why dismissal is not in the interests of justice. Indeed, I am satisfied in the circumstances of this case that it is positively in the interests of justice to dismiss the Main Appeal. [13] As Juriansz J.A. recognized in Virc , at para. 5, discretion under r. 61.06(2) should be exercised in light of the particular subsection of r. 61.06(1) under which the initial order was made: Different determinations justify an order for security for costs under each of rule 61.06(1)(a), (b) and (c). In paying careful attention and deference to the initial decision, a judge hearing a motion under subrule (2) should be mindful of the different considerations that applied in the particular case. [14] The Security for Costs Order at issue was made pursuant to rr. 61.06(1)(b) and 56.01(1)(d). In her endorsement, Pepall J.A. found there was good reason to believe that if the moving parties were successful in the Main Appeal, they would be unable to recover their costs because 938 is a single-purpose corporation and has no assets. [15] In my view, Pepall J.A.’s findings are sound. The Security for Costs Order was made based on the admitted fact that 938 was incorporated solely to acquire the property in issue and has no assets. [16] Further, while I recognize that Mr. Singh is not a lawyer and that this inhibits his ability to identify grounds for appeal, I have closely examined the Motion to Strike Order and see no realistic basis upon which it could have been challenged. Frankly, the actions 938 has commenced are legally without hope, yet they are vexing the moving parties, who are pointlessly incurring significant costs to defend them which they will never recover. [17] I appreciate the public interest in permitting litigants to have their day in court so that an appeal may be determined by a panel on its merits. However, in the circumstances of this case, particularly 938’s lack of assets and the manifest weakness of the Main Appeal, that interest does not prevail. Moreover, the amount Pepall J.A required 938 to post by way of security is modest and does not unfairly impede 938’s opportunity to access justice. If 938 wanted its day in court, this amount should have been paid. [18] I have also considered whether these motions for dismissal are premature, given that the panel review of the Extension Denial Decision remains outstanding. In my view, the interests of justice are not served by waiting for that review to play out. [19] In Susin v. Susin , 2008 ONCA 66, 37 E.T.R. (3d) 159, Laskin J.A. similarly dismissed an appeal for failure to post security for costs while an effort to obtain a panel review was outstanding because the appellant had “not put forward any basis to resist” the dismissal motion: at para. 5. [20] 938’s position in this case is even more dire than that of the appellant in Susin . 938 has provided no meaningful basis to resist the Security for Costs Order, no meaningful basis to resist the Extension Denial Decision and seek a panel review of the Security for Costs Order, and no meaningful basis to doubt the Motion to Strike Order, which is the subject of the Main Appeal. CONCLUSION [21] Accordingly, it is in the interests of justice to grant the orders sought by the moving parties. The Main Appeal, court file number C68695, is dismissed. [22] Costs are payable on these motions to each moving party in the amount of $1,500.00, inclusive of disbursements and HST. “David M. Paciocco 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: AA v. BB, 2021 ONCA 147 DATE:  20210310 DOCKET: C64004 Lauwers, Brown and Roberts JJ.A. BETWEEN AA Plaintiff (Appellant) and BB and CC Defendants (Respondents) AA, acting in person BB, acting in person CC, acting in person Heard: January 20, 2021 by video conference On appeal from the judgment and orders made by Justice J. Christopher Corkery of the Superior Court of Justice, dated June 5, 2017, July 3, 2018, December 12, 2018, December 16, 2019, and June 1, 2020, with reasons reported at 2017 ONSC 3458, 2018 ONSC 4173, 2018 ONSC 7490, 2019 ONSC 7318, and 2019 ONSC 3423 . BROWN J.A.: I. OVERVIEW [1] The appellant, AA, and the respondent, CC, have two children. The respondent, BB, was a friend of CC. In April 2013, following AA and CC’s separation, the local children’s aid society (the “Society”) received a report from an anonymous caller that she had witnessed AA abusing his children and partner. BB made the call. The report was false. AA commenced an action against BB and CC claiming damages for intentional infliction of emotional distress, conspiracy, slander, and libel. [2] AA’s action focused on two events. First, the April 16, 2013 report that BB made to the Society, which AA alleged was false and made at the behest of CC. Second, the April 25, 2013 telephone interview of CC by an employee of the Society (the “Interview Call”) as part of an investigation of the initial report from BB, during which CC made several statements about AA. [3] The first trial of AA’s claim took place in late 2016, with the trial judge’s reasons released in June 2017: 2017 ONSC 3458 (the “First Reasons”). The trial judge granted AA judgment against BB for slander, awarding him $5,000 in general damages and $5,000 in punitive damages. However, the trial judge dismissed AA’s claim against CC. [4] As a result of AA’s discovery of fresh evidence regarding CC’s role in BB’s report to the Society, the trial judge re-opened the trial and heard further evidence in November and December 2017. The trial judge released reasons in July 2018: 2018 ONSC 4173 (the “Second Reasons”). At the re-opened trial, the trial judge found that CC and BB conspired together to have BB make the false report to the Society, which slandered AA: at paras. 70 and 78. He granted judgment in favour of AA against CC and BB for $25,000, payable on a joint and several basis (the “Judgment”). [5] AA represented himself at the trials. He sought costs of approximately $120,000 (796.95 hours x $150/hour) and $2,500 for disbursements. The trial judge awarded AA no costs for his time and disbursements of only $1,000 (the “Costs Order”): 2018 ONSC 7490, at paras. 16-17. [6] In order to protect the identities of AA and CC’s children, the trial judge ordered that letters be used for the parties’ names. However, the local sheriff’s office was not prepared to enforce the Judgment in that form. To remove that obstacle to enforcement, the trial judge issued a subsequent order (the “Naming Order”) that continued the use of lettered names in the proceeding but directed that a new court file be opened for enforcement purposes. He stated, in 2019 ONSC 3423 (the “Naming Reasons”), at para. 14: To address the plaintiff’s difficulty in enforcing his judgment, an order shall be prepared and entered by the court’s administration in accordance with Rule 59.03 of the Rules of Civil Procedure (Form 59B) using the full names of the parties and granting judgment in favour of the plaintiff in the amount of $25,000 against both defendants, jointly and severally. That judgment shall be placed in a new court file with a new court file number, containing no reference whatsoever to this file. [7] AA appeals the two trial judgments, the Costs Order, and the Naming Order. For the reasons set out below, I would allow the appeal of AA’s claim for damages in respect of statements CC made during the Interview Call and his appeal of the Costs Order, in part, but dismiss the balance of the appeal. II.       THE QUALIFIED PRIVILEGE ISSUE The issue stated [8] As part of its investigation into BB’s call, an employee of the Society, Ms. Cooper, sought to interview CC about the events surrounding BB’s earlier report. Ms. Cooper conducted a telephone interview with CC on April 25, 2013, a little over one week after BB had made her report. The trial judge reviewed the evidence given at trial about the Interview Call at paras. 26 to 29 of the First Reasons. He wrote that Ms. Cooper testified, in part, that: [CC] spoke about how AA was abusive and vindictive … CC told Ms. Cooper that at work she has talked about her frustration with AA and the court process and had sought advice from peers on how to manage the situation. She talked at work about the fact that [one of their children] broke her leg. She has talked at work about how AA is a terrible parent and an abusive person and that AA will spin a conspiracy theory so she will never see her children again. [9] At para. 28, the trial judge wrote that CC testified, in part, that: In her evidence, CC acknowledged that she did talk at work about [one of their children] breaking her leg, she does seek advice from her co-workers but at no time has she used AA’s name. [10] After reviewing the law on qualified privilege in his First Reasons, the trial judge was not satisfied that AA had made out a separate claim for slander against CC for the answers she gave to the Society when questioned. He found that CC’s communications to the Society on that occasion were protected by qualified privilege, stating, at para. 68: Communication with child welfare agencies responsible for protecting children in the course of their investigations is, in my view, but another “classic example” of an occasion of qualified privilege as referred to by the Court of Appeal in Cusson v. Quan . To find otherwise, would make it impossible for such public agencies to carry out their difficult but very necessary responsibility of protecting vulnerable children. I have no doubt that most interviews conducted in the course of such investigations will include statements that tend to lower another’s reputation in the eyes of a reasonable person. CC spoke to Ms. Cooper about AA on the promise from Ms. Cooper that she would not disclose what CC told her. This expectation was reasonable. Her discussion with Ms. Cooper was protected by qualified privilege, even if it included CC making admissions about what she said to others at work. [11] At the re-opened trial, the trial judge heard fresh evidence that led him to conclude that: (1) BB and CC acted in combination, by agreement or common design, to make a false report to the Society: Second Reasons, at para. 70; and (2) CC was the source of the information BB reported to the Society: Second Reasons, at para. 71. [12] The trial judge awarded $25,000 in damages against both BB and CC in respect of BB’s false reporting call, allocated as follows: (i) $10,000 for intentional infliction of emotional distress; (ii) $10,000 for slander; and (iii) $5,000 in punitive damages, in light of the “malicious nature of the false referral”: Second Reasons, at para. 83. [13] However, the trial judge maintained his dismissal of AA’s claim against CC for statements made during the Interview Call. Using the identical language from his analysis in the First Reasons, the trial judge held that CC’s statements to the Society were protected by qualified privilege: Second Reasons, at para. 80. Having made that finding, in his Second Reasons the trial judge did not go on to consider whether the qualified privilege was defeated by any malice on the part of CC. [14] AA submits that the trial judge made two errors in dismissing his claim against CC for the statements she made during the Interview Call with the Society: (i) finding that CC’s statements were protected by qualified privilege despite an internal Society document about general service standards, which the trial judge refused to admit at trial, stating that communications to the Society are not privileged; and (ii) failing to consider AA’s argument that any claim for qualified privilege was defeated by evidence that CC lied or misled the Society during the Interview Call. The state of the appeal record [15] A person who makes a statement that is defamatory of another may assert, by way of defence to an action for defamation or slander, that the statement was made on an occasion of qualified privilege. A defamatory statement made on an occasion of qualified privilege does not attract liability: RTC Engineering Consultants Ltd. v. Ontario (2002), 58 O.R. (3d) 726 (C.A.), at para. 14. Although the trial judge correctly stated the principles regarding the concept of qualified privilege in the law of defamation, [1] he did not clearly identify which statements made by CC during the Interview Call defamed AA. [16] The absence of such a finding creates problems for appellate review. The case AA advanced at trial alleged that, during the Interview Call, CC informed the Society employee that she had told people at her work that AA was a terrible and abusive parent. AA made that allegation in his statement of claim. Also, during his submissions at the first trial, AA identified as defamatory CC’s statement to the Society that she had told co-workers that AA was “a terrible and abusive parent”. [17] The appeal record did not include the transcript of the evidence given by the Society employee at the first trial. When the panel inquired whether a transcript of that evidence had been prepared, the parties advised that one had not. In those circumstances, the panel accepted the audio recording of the testimony of the Society employee for review. The panel was able to evaluate the April 25, 2013 Case Note of the Interview Call prepared by the Society employee in the context of her testimony at the first trial. [18] While the Case Note is unclear whether CC reported that discussions at work included statements to co-workers that AA was a terrible and abusive parent, in her examination-in-chief the Society employee confirmed that CC had stated during the Interview Call that she had told co-workers that AA was “an abusive parent and a terrible person.” However, on cross-examination, the Society employee could not recall whether CC told her that CC had used AA’s name when talking at work. In her evidence-in-chief at the first trial, CC denied giving AA’s name to a co-worker in the context of any statement that would be defamatory of him. [19] In his reasons for the first trial (at para. 27) and those for the second (at para. 36), the trial judge refers to the Society employee’s testimony that she could not recall if during the Interview Call CC said she had used AA’s name with co-workers. However, the trial judge did not make any finding as to whether he considered that statement by CC to the Society employee as the defamatory statement that could attract the defence of qualified privilege. [20] The Case Note records several other statements made by CC during the Interview Call that were capable of defaming AA: · “ [CC] spoke of how [AA] is an abusive and vindictive man”; · CC stated that the Society employee had “fallen for AA’s act”; · CC talked about “how [AA] is a terrible and abusive parent and that she feels he will spin a conspiracy theory and she will never see her children again .” [21] CC did admit during cross-examination at the second trial that the Case Note was an accurate reflection of the conversation she had with the Society employee. [22] The panel therefore is left in the position that: the trial judge considered AA’s claim against CC for defamatory statements made during the Interview Call; the trial judge did not make a finding as to which statements made by CC during that call defamed AA; yet the trial judge concluded that the statements were protected by qualified privilege. [23] As unsatisfactory as that may be, and notwithstanding that the judgment under appeal is far less than $50,000, [2] given the length of time that has passed since the 2013 Interview Call and the fact that all parties are self-represented, it would not be in the interests of justice to remit this matter back to the trial judge. This is an appropriate case for this court to exercise its powers under s. 134 of the Courts of Justice Act (“ CJA ”), including by making any necessary findings of fact. [24] As to AA’s defamation claim based on CC’s statement to the Society employee that she had commented on AA’s parenting to her co-workers, the conflicting evidence set out at para. 18 above, together with the absence of any evidence at trial from a co-worker of CC who was the recipient of any such statement, leads me to conclude that AA has not established, on a balance of probabilities, the element of identification essential to a defamation claim: Raymond E. Brown, Brown on Defamation , 2nd ed. (Toronto: Thomson Reuters, 2020), at ch. 6.1. However, given CC’s admission at trial that the Case Note accurately reflects the conversation she had with the Society employee during the Interview Call, I will proceed on the basis that CC told the Society employee that AA was “an abusive and vindictive man” and a “terrible and abusive parent”. Those statements certainly defamed AA. My analysis of the trial judge’s qualified privilege finding will treat these as the defamatory statements at issue in the Interview Call and will hereafter refer to them as the “Defamatory Statements”. AA’s first argument on qualified privilege [25] The appellant advances two arguments in support of his contention that the trial judge erred in finding that the Defamatory Statements CC made during the Interview Call were protected by qualified privilege. [26] First, AA argues that the trial judge erred by refusing to admit a Society document which he contends demonstrates that the Interview Call was not an occasion of qualified privilege. As described in AA’s factum, the document stated, in part: Communication between a worker and client are not recognized in Ontario as privileged, and as a result, Individuals and records may be subpoenaed by the Court. Information which clients have assumed would be held in strict confidence may have to be disclosed in the course of due legal process. Clients should, therefore, be advised of the limitations of the agency's ability to maintain confidentiality. The trial judge ruled that he would not admit the document because it fell outside the scope of admissible evidence for the re-opened trial. [27] I see no error by the trial judge in refusing to admit the document. The document does not assist in determining whether the Interview Call was made on an occasion of qualified privilege. The references in the Society document to “privilege” are not references to the concept of qualified privilege in the law of defamation. [28] More relevant to the issue of whether the Defamatory Statements were made on an occasion of qualified privilege is s. 125 of the Child, Youth and Family Services Act, 2017 , S.O. 2017, c. 14, Sched. 1 (“ CYFSA ”). That section sets out the obligation of a person to report information to a society where there are reasonable grounds to suspect that a child has suffered various kinds of harm. Section 125(10) creates a form of statutory qualified privilege: This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion . [Emphasis added.] [29] This statutory qualified privilege attaches to statements made in a complaint to a society, as well as to statements made by a person to the society in the course of an investigation: W. (D.) v. White , 2001 CarswellOnt 5892 (S.C.), at paras. 85-92, aff’d (2004), 189 O.A.C. 256 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 486; Nadejda Ryabikhina v. Stanislav (Stan) Savranskiy , 2010 ONSC 3860, at paras. 24-25, aff’d 2011 ONCA 219, leave to appeal to S.C.C. refused, 35927 (July 24, 2014); Sullivan v. Draper-Sereda , [2006] O.J. No. 4671 (Small Claims). [30] The statements made by CC to the Society were in response to the Society’s request that she provide it with information as part of its investigation into BB’s call. Given its obligation to ascertain the accuracy of reports made to it, the Society had an interest in receiving information from CC about the call and, on her part, CC had a duty, whether legal, social, or personal, to provide the Society with the requested information: RTC Engineering Consultants , at paras. 14-16. [31] Accordingly, the trial judge did not err in finding that CC made the statements to the Society on an occasion of qualified privilege. AA’s second argument on qualified privilege [32] As his second argument, AA submits, in effect, that the trial judge failed to determine whether CC’s claim for qualified privilege was defeated by her malice. [33] In his discussion of the applicable legal principles, at para. 68 of the Second Reasons, the trial judge recognized that the defence of qualified privilege could be defeated by actual or express malice or if CC’s statements exceeded the limits of the applicable duty or interest: Korach v. Moore (1991), 1 O.R. (3d) 275 (C.A.), at pp. 278-80, leave to appeal refused, [1991] S.C.C.A. No. 30; Bent v. Platnick , 2020 SCC 23, 449 D.L.R. (4th) 45, at paras. 128 and 136. The limits of the privilege were explained by this court in RTC Engineering Consultants , at para. 18: Not everything said or written on an occasion of qualified privilege is protected. As is evident from the term “qualified privilege” itself and from the previous discussion, the privilege is not absolute. It may be lost in one of two ways. First, it may be lost if the dominant motive for making the statement was malice. In this context malice means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness. Both dishonesty and a reckless disregard for the truth may amount to malice. Second, a privilege may be lost if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it. Put differently, to maintain privilege a defendant must communicate appropriate information to appropriate people. [Emphasis added.] [34] In considering whether malice by the maker of the statement defeats qualified privilege, the primary consideration is the state of mind of the maker at the time the words were published: Brown, at ch. 16.2(2) . The presence of an improper motive is the critical consideration. The privilege will be lost if it is shown that the statement was published for a collateral motive unrelated to the privilege’s purpose: Brown, at ch. 16.3(1). Accordingly, malice is essentially a question of good faith. The privileged occasion must be used for the purpose for which it is given; it must not be misused or abused by a defendant: Brown, at ch. 16.3(1). [35] In RTC Engineering Consultants , this court, at para. 18, identified some aspects of the factual inquiry when it stated that malice in the context of qualified privilege “means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness.” [36] Unfortunately, the trial judge’s reasons on the issue of qualified privilege are brief and cryptic. He did not expressly make a finding about whether AA had proven CC made the Defamatory Statements with malice, thereby defeating the qualified privilege. However, given that he dismissed AA’s claim in respect of the Defamatory Statements on the basis of qualified privilege, the following remarks made at para. 80 of his Second Reasons might appear to address that issue of whether CC made the statements with malice: I have no doubt that most interviews conducted in the course of such investigations will include statements that tend to lower another’s reputation in the eyes of a reasonable person. CC spoke to Ms. Cooper about AA on the promise from Ms. Cooper that she would not disclose what CC told her. This expectation was reasonable . Her discussion with Ms. Cooper was protected by qualified privilege, even if it included CC making admissions about what she said to others at work. [Emphasis added.] [37] In the highlighted portion of these remarks, I take the trial judge to be saying that interviews by Society employees conducted during an investigation into a report often will result in the interviewee making defamatory comments about the subject of the investigation. As CC was responding to inquiries made by the Society employee, her comments are not necessarily the product of malice, but the product of the candour needed to ensure that such interviews operate as an effective investigatory tool. [38] However, AA argues that, since the trial judge had found CC and BB combined to make a malicious initial referral to the Society, that malice would defeat any qualified privilege in respect of statements made by CC during the subsequent Interview Call. I do not accept that submission, as framed. The finding of malice in respect of the initial report does not automatically mean that malice was the dominant motive for CC making the statements over a week later during the Interview Call. The issue is whether, at the time of the Interview Call, malice was the dominant motive for CC making the Defamatory Statements: RTC Engineering Consultants , at para. 23. [39] The trial judge failed to make a finding as to whether CC made the Defamatory Statements with malice. That was an error. It therefore falls to this court to decide the issue. [40] Here, CC told the Society employee during the Interview Call that AA was an “abusive and vindictive man” and “a terrible and abusive parent”. CC made these statements during the Society’s investigation into BB’s serious allegations of abuse against AA. CC falsely denied knowing anything about the referral or its source. Yet, she used the occasion of the Interview Call to repeat, and therefore reinforce, allegations similar to those BB made in her false referral. [41] Given those circumstances, and against the background of the trial judge’s findings that the initial referral allegations were made with malice, it is not possible to characterize CC’s Defamatory Statements during the Interview Call as simply an impulsively unreasonable or irrational emotional outburst. The preponderance of the evidence discloses that CC made the Defamatory Statements with malice, that is dishonestly or recklessly as to their truth, thereby defeating a defence of qualified privilege for CC. [42] Notwithstanding that finding of liability against CC, in my view any damages for CC’s Defamatory Statements are nominal. CC made the Defamatory Statements only to the Society employee, whose files are sealed from general public view or access. As well, the Society closed its file regarding BB’s referral because it concluded the allegations against AA were unverified and malicious. In these circumstances, I would assess AA’s damages at $500. [43] Consequently, I would allow AA’s appeal with respect to the dismissal of his claim for slander against CC in respect of the Interview Call. I would otherwise dismiss his appeal in respect of the trial judgments. III.      APPEAL FROM THE COSTS ORDER [44] Leave to appeal a costs order will not be granted save in obvious cases where the party seeking leave persuades the court there are strong grounds upon which the appellate court could find that the judge erred in exercising his or her discretion: Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. An appellate court should set aside a costs award only if the trial judge has made an error in principle or the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. [45] AA submits that the trial judge erred in failing to award pre-litigation costs related to the work he undertook with respect to the Child and Family Services Review Board and Norwich application proceedings. I disagree. It was entirely within the trial judge’s discretion not to award those costs. I see no error in the exercise of his discretion. [46] AA next submits that the trial judge erred in failing to award him any costs for the time he spent on these proceedings. I do not accept this submission. In the present case, the trial judge identified and applied the correct principles of law, namely those stated in Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.). The trial judge held that AA failed to prove that he had to give up remunerative activity in order to perform work on this case that ordinarily would be done by a lawyer. [47] AA submits the trial judge erred in so finding. However, while in this proceeding AA testified that he had to take off work during his earlier family law trial, neither the transcript nor his cost submissions at the re-opened trial demonstrate that AA had to forego remunerative activity to work on this case. AA’s statement, without more, that he had to work less than he otherwise would in order to focus on preparing paperwork and appearing in court is insufficient. Accordingly, I see no reversible error in the trial judge denying AA costs for work he conducted on this proceeding. [48] As to disbursements, the trial judge limited the award to $1,000 because AA had not filed a breakdown to support his request for $2,500 in disbursements. I have reviewed the cost outlines found at Tabs A and B of AA’s July 29, 2018 cost submissions to the trial judge. While they do not break out costs and disbursements in a way typically seen in a cost outline prepared by a lawyer, to my eye a fair reading of AA’s incurred disbursements would place them at $1,500.00. Accordingly, I would allow the appeal from the Costs Order to the extent of varying the disbursements awarded from $1,000 to $1,500. IV.     APPEAL FROM THE NAMING ORDER [49] The trial judge invoked s. 87(8) of the CYFSA to order that the letters AA, BB, and CC be used instead of the parties’ initials in all judgments and endorsements related to the matter. [50] Section 87 of the CYFSA applies to hearings held under Part V of the Act dealing with child protection. Section 87(8) states that “[n]o 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.” [51] AA submits that his civil action against BB and CC was not a hearing or proceeding under Part V of the CFYSA , so the trial judge erred by relying on s. 87(8) to grant the Naming Order. [52] Whether or not the trial judge possessed jurisdiction under CFYSA s. 87(8) to issue the Naming Order, he certainly possessed the jurisdiction through a combination of his inherent jurisdiction and s. 137(2) of the CJA [3] : see Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41, [2002] 2 S.C.R. 522; Vancouver Sun (Re) , 2004 SCC 43, [2004] 2 S.C.R. 332. Although the trial judge did not refer to the principles set out in Sierra Club , at para. 53, and Vancouver Sun , at paras. 30-31 , his Naming Reasons disclose that, in essence, he considered: (a) whether some restriction on the naming of the parties was necessary to prevent a serious risk to the welfare of AA and CC’s children; and (b) whether the salutary effects of such a restriction would outweigh its deleterious effects. That analysis has been applied by Ontario courts to initialize or otherwise protect the identities of parties and their children in civil matrimonial litigation: L.C.F. v. G.F. , 2016 ONSC 6732, 86 R.F.L. (7th) 338, at paras. 17-18; S.M. v. C.T. , 2020 ONSC 4819, 46 R.F.L. (8th) 109, at paras. 27-28; G.S. and K.S. v. Metroland Media Group et al. , 2020 ONSC 5227, 46 R.F.L. (8th) 357, at paras. 43-44. [53] AA wants proper names used in all court orders and reasons in this proceeding so that he can inform “professionals providing care for the children” about the behaviour of BB and CC. The trial judge was concerned about such a possible use of proper names in court reasons, stating at para. 11 of his Naming Reasons: Using actual names will always present a much higher risk of offending subsection 87(8) [of the CYFSA ]. Once the names of the parties are revealed in a court decision, it will be difficult, if not impossible, for the court to know what additional facts included in the judgment may still point to or identify the persons protected by subsection 87(8). Even the use of initials is potentially compromising, particularly where it can be discovered that the full names of the same parties have been used in another related proceeding. [54] That was a reasonable concern for the trial judge to have in the circumstances. It was also a reasonable basis upon which to exercise his discretion to use letters for the parties names in the court file but, in order to allow AA to enforce the Judgment, to use proper names in the public judgment in a separate, unconnected file. Finally, while AA certainly has a legitimate concern in protecting his reputation, this action did not involve defamatory statements that were widely published. BB and CC made their statements to employees of the Society. There was no evidence that those statements were re-published. The trial judge exercised his discretion in a balanced way, taking into account the interests of all parties, the children, and the public. V.      DISPOSITION [55] For the reasons set out above, I would allow AA’s appeal from the dismissal of his slander claim against CC in respect of statements she made during the Interview Call and order CC to pay AA damages of $500. I would also allow the appeal of the Costs Order to the extent of increasing the award of disbursements to AA to $1,500.00, payable by BB and CC on a joint and several basis. I would dismiss the appeal in all other respects. [56] AA is entitled to his reasonable disbursements for this appeal. AA may serve and file submissions (not to exceed three pages in length) regarding the disbursements he has incurred for this appeal within 10 days of the release of these reasons. BB and CC may file responding submissions (not to exceed three pages in length) within 10 days of the receipt of AA’s reasons. [57] I would not order any other costs of the appeal. Released: March 10, 2021 “P.L.” “David Brown J.A.” “I agree. P. Lauwers J.A.” “I agree. L.B. Roberts J.A.” [1] 2018 ONSC 4173, at paras. 67-68. [2] Courts of Justice Act , R.S.O. 1990, c. C.43, s. 19(1)(a). [3] Section 137(2) of the CJA provides: “A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.”

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 , whic 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 bo th. COURT OF APPEAL FOR ONTARIO CITATION: AA v. BB, 2021 ONCA 384 DATE:  20210602 DOCKET: C64004 Lauwers, Brown and Roberts JJ.A. BETWEEN AA Plaintiff (Appellant) and BB and CC Defendants (Respondents) AA, acting in person BB, acting in person CC, acting in person Heard: January 20, 2021 by video conference On appeal from the judgment and orders made by Justice J. Christopher Corkery of the Superior Court of Justice, dated June 5, 2017, July 3, 2018, December 12, 2018, December 16, 2019, and June 1, 2020, with reasons reported at 2017 ONSC 3458, 2018 ONSC 4173, 2018 ONSC 7490, 2019 ONSC 7318, and 2019 ONSC 3423. COSTS ENDORSEMENT [1] By reasons released March 10, 2021, we awarded AA his reasonable disbursements of the appeal. AA filed written submissions seeking disbursements of $1,382.75. CC filed an email submission advising that she had no issue with the amount sought. BB did not file any submissions. [2] Accordingly, AA is awarded his disbursements of the appeal in the amount of $1,382.75, inclusive of applicable taxes, payable by BB and CC on a joint and several basis. “P. Lauwers J.A.” “David Brown J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: B.L. v. Pytyck, 2021 ONCA 67 DATE: 20210203 DOCKET: C68537 Lauwers, Hourigan and Brown JJ.A. In the matter of an appeal from a decision of the Consent and Capacity Board Pursuant to the Health Care Consent Act , 1996 , S.O. 1996, c. 2, Sched. A, As amended And in the matter of B.L. A patient at Ontario Shores Centre for Mental Health Sciences Whitby, Ontario BETWEEN B.L. Applicant/Appellant (Appellant) and Dr. Jennifer Pytyck Respondent (Respondent) Ken J. Berger, for the appellant Jessica R. Szabo, for the respondent Heard: January 22, 2021 by video conference On appeal from the order of Justice David L. Corbett of the Superior Court of Justice, dated June 16, 2020, with reasons reported at 2020 ONSC 3766, dismissing an appeal from the decision of the Consent and Capacity Board, dated August 14, 2019. BROWN J.A.: I.        OVERVIEW [1] By decision dated August 14, 2019, the Consent and Capacity Board (the “Board”) confirmed the finding of the appellant B.L.’s [1] treating psychiatrist that he was incapable of consenting or refusing consent to treatment, specifically antipsychotic medications, both oral and injectable: 2019 CanLII 92439. B.L. appealed the Board’s decision to the Superior Court of Justice; the appeal judge dismissed his appeal. B.L. now appeals to this court. [2] For the reasons set out below, I would dismiss the appeal. II.       THE APPELLANT’S CONDITION [3] B.L. is 37 years old. He has been diagnosed with schizophrenia. That diagnosis is not in dispute on this appeal. [4] In 2013, B.L. was admitted to the Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) under the jurisdiction of the Ontario Review Board after being found not criminally responsible for striking his father with a cricket bat. He remained at Ontario Shores until January 2017, when he was discharged to a group home. After a deterioration in his condition following a change in medication, B.L. was re-admitted to Ontario Shores in May 2017, where he remains today. [5] Twice in 2013 B.L. was found incapable of consenting to treatment with antipsychotic medication; both times the Board set aside the finding. [6] The respondent psychiatrist, Dr. Pytyck, has treated B.L. since 2015. At the August 2019 CCB hearing, Dr. Pytyck testified that B.L. is extremely high functioning when properly treated, but his condition deteriorates quickly without adequate antipsychotic medication. [7] From January 2017 to August 2018, B.L. changed the dose and type of his medication multiple times after discussing side effects and other concerns with Dr. Pytyck. B.L. has not taken any antipsychotic medication since August 2018. [8] Prior to the August 2019 Board hearing, B.L. had not taken prescribed medication for about one year. According to Dr. Pytyck, during that time B.L.’s condition had deteriorated markedly: he exhibited social withdrawal, odd interpersonal behaviours, extreme sensitivity to light and sound, signs of paranoia, irritability, and disorganization of thought. In the month before the Board hearing, Dr. Pytyck noted a dramatic deterioration in B.L., including the emergence of delusional beliefs. [2] In her opinion, as of the time of the hearing, B.L. was “quite overtly psychotic”. [9] The appeal judge, at para. 20 of his reasons, summarized B.L.’s testimony before the Board as follows: In his testimony, [B.L.] presented as described by [Dr. Pytyck]: intelligent, focused on the legal test of capacity and in particular, with demonstrating that he had gone through the process of weighing risks and benefits of taking antipsychotic medication. He also testified in manner that corroborated [Dr. Pytyck’s] description of him as delusional. He believes that he is suffering because of UV rays, gamma rays, and lack of oxygen, and that his somatic complaints are real. He attributes these complaints to phenomenon such as climate change, and he believes that his antipsychotic medication makes these things worse. At most, in his view, the anti-psychotic medication masks the reality of these afflictions, leading him to fail to take steps to protect himself, thus afflicting him further. [10] At the Board hearing, Dr. Pytyck testified that for many years B.L. had conflated his somatic preoccupations with the side effects from his antipsychotic medication. In 2013 and 2014, when he was taking very low doses of antipsychotic medication, B.L. reported very high levels of somatic side effects. When adequately medicated, B.L. did not complain to the same degree. [11] On his part, B.L. denies that his somatic complaints are related to his mental illness. He denies that his medication can relieve him from his delusional suffering. Subjectively, he believes that he does suffer from physical complaints, that these complaints are worsened by his antipsychotic medication, but that one effect of the medication is to dull him mentally, so that he “forgets” about his complaints and then fails to protect himself against the negative effects of climate change. III.      THE DECISION OF THE BOARD [12] Section 4(1) of the Health Care Consent Act, 1996 , S.O. 1996, c. 2, Sched. A (the “Act”), establishes a two-branch test for determining a person’s capacity to consent to treatment. A person is capable with respect to a treatment if the person is able to: (i) Understand the information that is relevant to making a decision about the treatment; and (ii) Appreciate the reasonably foreseeable consequences of a decision or lack of decision. [13] Before the Board, there was no dispute that B.L. satisfied the first branch of the test. The issue was whether B.L. was able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. [14] The Board acknowledged the proper approach to apply to the issue of B.L.’s capacity to consent to treatment, stating, at pp. 12-13 of its reasons: In assessing the evidence and submissions of counsel, I was mindful of the court's caution, in Starson v. Swayze [2003] 1 S.C.C. 722, that it is not the Board's function to interfere with a capable person's rational choices, however foolish. Capable people have the right to take risks and make decisions that may be considered unreasonable. The test is not whether the choice by the patient appears reasonable or wise, but whether the patient is capable of consenting, within the meaning of the statute. Further, in Starson , the court cautioned that the Board must avoid the error of equating the presence of a mental disorder with incapacity. People suffering from mental disorders are vulnerable to interference with their personal autonomy and are at risk of having their decisions regarding treatment not being taken seriously. Although a person need not agree with the doctor's diagnosis, nor even agree that he or she suffers from a mental condition, in order to be found capable, if it is demonstrated that he or she has a mental condition, the person must also be able to recognize the possibility that he or she is affected by that condition. In that regard, it was said in Starson that “…if the patient's condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision .” [Emphasis added.] [15] In confirming Dr. Pytyck’s finding that B.L. was not capable of consenting to treatment, the Board made several key findings, including: · At the time of the hearing, B.L. suffered from a mental illness, namely schizophrenia: at pp. 7-8; · B.L. had been “more than amply educated about his illness and the benefits and risks of medications”: at p. 8; · Although B.L. was able to acknowledge that he had been diagnosed with schizophrenia, he was unable to appreciate that he was experiencing paranoia and delusions and that his symptoms were likely those of a psychotic illness: at pp. 13-14; · B.L. lacked the ability to appreciate that he was affected by symptoms of mental illness or, at a minimum, was unable to appreciate the extent to which his symptomatology governed his behaviour: at p. 14; · B.L.'s paranoid delusions about UV rays, gamma rays, and carbon dioxide levels interfered with his ability to evaluate how the treatments being proposed would likely affect him. B.L. was making his decisions in the context of a belief that his fears about UV rays were warranted and not delusional. It was his view that the medication would not likely address these concerns and it was the very delusions from which he suffered which interfered with his ability to rationally weigh the potential benefits of the proposed treatment: at p. 14; · Although B.L. held an honest belief about the adverse effects of the medication, the sincerity of B.L.'s beliefs did not overcome the preponderance of evidence pointing to B.L.'s inability to appreciate the consequences of his treatment choices: at p. 14; · B.L. likely overestimated the side effects of the medications and likely conflated his somatic delusions and the adverse effects of the medication: at p. 15; · B.L.'s refusal to take the antipsychotic medication was not primarily because of its negative effects, but because of his inability to appreciate the connection between his thoughts and conduct and the return of his psychotic symptoms and the connection between medication adherence and improvement of symptoms: at p. 15; · B.L. was not able to appreciate that taking therapeutic doses of the medication had improved his condition to the extent that he had been able to leave the hospital and live in a group home for a while: at p. 15; · B.L.’s decision to decline medication was dictated by the delusions from which he suffered: at p. 15; · B.L. was unable to consider medication as an option in the future, regardless of what he sometimes said, because, in B.L.'s view, he was not suffering from psychotic symptoms, and the measures he took to protect himself were a rational response to real, not delusional concerns: at p. 15; · B.L.’s evidence revealed a singular focus on the medication’s negative effects: at p. 16; · B.L. had not undertaken a cost/benefit analysis regarding the medication because he was unable to appreciate that his behaviour flowed from symptoms of a psychotic illness and that the illness was clouding his ability to recognize the benefits of medication: at p. 16; and · On the totality of the evidence, although B.L. apprehended the negative effects of treatment with antipsychotic medication, he was unable to appreciate its benefits. His symptomatology, including his paranoia and delusions, prevented him from having the ability to evaluate the relevant information as it applied to his own circumstances: at p. 16. [16] The Board concluded, at p. 17, that: BL was unable to appreciate the correlation between his behaviour and psychotic symptoms, which the antipsychotics served to reduce. Absent an ability to make a connection between a mental disorder and its effects on him and an inability to connect his improvement to medication adherence, he did not have the ability to evaluate the information or to weigh the benefits of the proposed treatments against their risks. Consequently, in my opinion, it had been proven that BL was incapable to consent to treatment with respect to antipsychotics. IV.     THE DECISION OF THE APPEAL JUDGE [17] In dismissing B.L.’s appeal from the Board’s decision, the appeal judge stated, at para. 33: In my view the Board was correct in finding that a patient must be able to appreciate the objectively reasonable material risks and benefits of medication before that patient can perform a meaningful costs/benefits analysis. The Board reasonably applied this standard to the facts, as it found them to be, and concluded that [B.L.] does not have capacity to consent to antipsychotic medication. V.      ISSUES ON APPEAL [18] B.L. submits that the Board misapplied the second branch of the capacity test in s. 4(1) of the Act to the facts of his case. B.L. contends that the evidence demonstrated that he actually appreciates the parameters of his treatment decision because he is cognizant of: the nature and purpose of the proposed treatment; the foreseeable benefits and risks of the treatment; the alternative courses of action; and the expected consequences of refusing treatment. While he may weigh or value the parameters differently than Dr. Pytyck, he has the ability to appreciate the decision he made. [19] B.L. further argues that his decision to refuse treatment was based on his understanding of environmental impacts on his own health, an understanding justified by scientific literature. In support of this submission, B.L. included in his book of authorities several publications from the World Health Organization (“WHO”) on various environmental issues. Dr. Pytyck objects to the inclusion of the articles on the grounds that: (i) they were not before the Board or the appeal judge; (ii) they are not relevant to a decisive issue on this appeal; and (iii) B.L. has not brought a proper motion for leave to file fresh evidence. VI.     THE STANDARD OF REVIEW [20] When reviewing a decision of the Superior Court of Justice regarding the decision of an administrative tribunal, such as the Board, this court must determine the standard of review that applies to the tribunal’s decision, apply that standard to the decision of the tribunal, and determine if the appeal court applied the standard properly. In so doing, this court “steps into the shoes” of the Superior Court of Justice and focuses on the tribunal’s decision under review: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) , 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-46; Longueépée v. University of Waterloo , 2020 ONCA 830, at paras. 47-48. [21] The Act provides a right of appeal from a decision of the Board to the Superior Court of Justice on questions of law or fact, or both: s. 80(1). As the appeal judge correctly observed, at para. 23: Where there is a statutory right of appeal from an administrative decision, without a privative clause, the court scrutinizes the administrative decision on the basis of “appellate standards of review”. See: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, para. 37. [22] The Board’s identification of the proper statutory test for capacity involves a question of law reviewable on the correctness standard. The Board’s application of the statutory test for capacity to the evidence to determine whether a person is capable is a question of mixed fact and law, reviewable on the deferential standard of palpable and overriding error, absent an extricable question of law in the Board’s analysis: Starson v. Swayze , 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 84; Gajewski v. Wilkie , 2014 ONCA 897, 123 O.R. (3d) 481, at para. 33. VII.    ANALYSIS [23] As I understand B.L.’s position on this appeal, he submits that the Board erred in law by applying the wrong legal standard to its assessment of the evidence and, as well, that the Board’s findings were based on a misapprehension of the evidence. The alleged error of law [24] The appeal judge recorded, at para. 5, that B.L. had conceded the Board had applied the correct legal test when assessing his capacity to consent to treatment. However, on this appeal B.L.’s counsel submits that the Board and appeal judge in fact applied the wrong legal test. As I understand the submission, B.L. argues that the Board incorrectly applied an objective standard of reasonableness, or a kind of “best interests” test, when assessing B.L.’s ability to appreciate the reasonably foreseeable consequences of a decision to take or refuse medication, instead of determining the issue based solely on B.L.’s subjective appreciation of the consequences. [25] I see no such error by the Board. With respect, B.L.’s submissions overlook an important element of the legal test as articulated by the Supreme Court in Starson . As the Board pointed out in its reasons, at p. 13, in Starson the Supreme Court stated, at para. 79: While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows…: Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations. As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision . [Emphasis added.] [26] Accordingly, the Starson test for capacity in respect of the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision includes a requirement to consider whether a person’s condition results in an inability to recognize that he or she is affected by its manifestations, thereby rendering the person unable to apply the relevant information and appreciate the consequences of his or her decision. This aspect of the legal test has been repeated and applied by this court in several cases: Giecewicz v. Hastings , 2007 ONCA 890, 288 D.L.R. (4th) 587, at paras. 18-21, leave to appeal refused, [2008] S.C.C.A. No. 97; D’Almeida v. Barron , 2010 ONCA 564, 103 O.R. (3d) 250, at paras. 24-26, leave to appeal to S.C.C. refused, (2011) 284 O.A.C. 400; Gajewski, at paras. 47-53; and Murray v. Alatishe , 2019 ONCA 596, at para. 20. [27] The Board applied the correct legal test, as is apparent from the portion of its reasons reproduced at para. 14 above. The alleged misapprehension of the evidence [28] B.L. submits, in effect, that the Board misapprehended the evidence because it was not prepared to accept the way he balanced the costs and benefits of taking antipsychotic medication in his circumstances. [29] With respect, I cannot accept this submission. The record demonstrates that the Board understood the evidence and made no palpable and overriding error in applying the correct legal standard to that evidence. [30] The factual findings made by the Board, enumerated in para. 15 above, are fully supported by the evidentiary record. Its conclusion based on that evidence, reproduced at para. 16 above, displays no misapprehension of the evidence. [31] The WHO publications that B.L.’s counsel asks this court to consider do not alter that conclusion. That most people have some concerns about the impact of environmental conditions on their health does not alter the Board’s task, which is to assess B.L.’s ability to appreciate the reasonably foreseeable consequences of a treatment decision in light of his mental illness, his capacity to understand the symptoms and effects of his mental illness, the benefits of medical treatment in B.L.’s specific circumstances, and the risk of medical treatment in those circumstances. The record shows that is what the Board did. [32] Accordingly, I see no basis to interfere with the Board’s decision. VIII.   DISPOSITION [33] For the reasons set out above, I would dismiss B.L.’s appeal. Released: “PL”  FEB 03 2021 “David Brown J.A.” “I agree. P. Lauwers J.A.” “I agree. C.W. Hourigan J.A.” [1] At the appellant’s request, in these reasons his initials are used instead of his full name. [2] Details of the evidence can be found at pp. 6-7 of the Board’s reasons: 2019 CanLII 92439. A description of B.L.’s behaviour at the Board hearing is found at p. 11 of those reasons.

COURT OF APPEAL FOR ONTARIO CITATION: Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 DATE: 20210216 DOCKET: C66948 van Rensburg, Hourigan and Brown JJ.A. BETWEEN Ismail Abbasbayli Plaintiff (Appellant) and Fiera Foods Company Bakery Deluxe Company 2168587 Ontario Ltd. David Gelbloom and Boris Serebryany Defendants (Respondents) Nikolay Y. Chsherbinin and Shawn Quigg, for the appellant Matthew P. Sammon and S. Jessica Roher, for the respondents Heard: November 17, 2020 by video conference On appeal from the order of Justice Andra Pollak of the Superior Court of Justice, dated December 16, 2019, with reasons reported at 2019 ONSC 948, and from the costs order, dated June 24, 2019, with reasons reported at 2019 ONSC 2905. van Rensburg J.A.: A. INTRODUCTION [1] The appellant is pursuing an action arising out of the termination of his employment against the respondents: three corporations alleged to have been his common employer and two individual corporate directors. In addition to claiming wrongful dismissal damages and punitive damages, the appellant claims against the individual respondents unpaid vacation pay under s. 81 of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) and s. 131 of Ontario’s Business Corporations Act , R.S.O. 1990, c. B.16 (“OBCA”), and relief from oppression under s. 248 of the OBCA. [2] The respondents brought a motion to strike certain claims and paragraphs of the statement of claim under rr. 21.01(1)(b) (for failure to disclose a reasonable cause of action), 25.06 (as pleading evidence) and 25.11 (as irrelevant and inflammatory) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. The motion judge struck certain pleadings without leave to amend and other paragraphs with leave to amend. She awarded costs of $14,569.52 against the appellant. [3] The appellant asserts that the motion judge erred in striking his s. 81 ESA and s. 131 OBCA claims at paras. 56-61 of the statement of claim without leave to amend, and his s. 248 OBCA claim in the same paragraphs and paras. 14-23 and 40 of the statement of claim with leave to amend. He argues that none of the paragraphs ought to have been struck, with or without leave to amend. He also seeks to appeal the costs award. [4] For the reasons that follow I would allow the appeal, but only in part. I would uphold the motion judge’s striking of the appellant’s s. 81 ESA claim without leave to amend and her striking of the s. 248 OBCA claim with leave to amend. I would set aside the motion judge’s order striking the appellant’s s. 131 OBCA claim without leave to amend, as well as her order striking paras. 14-23 of the statement of claim with leave to amend. I would vary her order with respect to para. 40, striking only the text at para. 40(iii), and not requiring any other amendment to that paragraph. I would also vary the costs award in view of the outcome of the appeal. B. THE STATEMENT OF CLAIM [5] The appellant commenced an action in August 2018 with respect to the termination of his employment for cause on March 26, 2018. He alleges that the corporate respondents are manufacturers of frozen dough and fully baked bakery products and his common employer (which he refers to together as “Fiera”), and that each of the individual respondents was a director and the directing mind and will of one or more of the corporate respondents. [6] According to the statement of claim, the appellant began working as a security guard at Fiera in 2002, moved to the role of boxing line operator, then to leadhand, and eventually back again to boxing line operator, the position he was in when he was fired. He pleads that his employment was terminated allegedly for cause on March 26, 2018, after he was accused of punching a colleague’s time card. The appellant pleads that the time-theft allegation was deliberately false, that Fiera failed to conduct a proper investigation, and that he was dismissed as a reprisal because he had raised concerns about manufacturing, health and safety, and storage requirement violations by Fiera, and he had taken steps to encourage employees to organize a labour union. [7] The appellant seeks wrongful dismissal damages, moral damages “arising from the bad faith manner of dismissal”, and punitive damages. At paras. 56-61 of the statement of claim (under the heading “Director’s Liability”), he asserts claims against the two individual respondents, including under s. 131 of the OBCA, s. 81 of the ESA, and s. 248 of the OBCA. C. THE MOTION JUDGE’S REASONS [8] The respondents moved under r. 21.01(1)(b) to strike certain paragraphs of the statement of claim, asserting that they did not disclose a reasonable cause of action for oppression under s. 248 of the OBCA or a claim for unpaid wages under the OBCA and the ESA. They moved to strike other paragraphs as pleading evidence contrary to r. 25.06(1) and containing irrelevant and vexatious allegations contrary to r. 25.11(b). [9] The motion judge first dealt with the claims against the individual respondents under s. 131 of the OBCA and s. 81 of the ESA, which are pleaded at paras. 56-61 of the statement of claim. The motion judge observed that under these statutory provisions, “[t]he directors of a corporation may be held jointly and severally liable for unpaid wages in specific circumstances if certain preconditions are met”: at para. 6. [10] She noted that s. 131 of the OBCA only provides for a director’s liability for debts for services performed and vacation pay accrued and not for severance pay, termination pay, or damages for wrongful dismissal. The respondents had argued that the appellant did not plead that the directors were liable for debts for services performed or vacation pay accrued, and the motion judge concluded that he did not plead the material facts necessary to establish a cause of action under s. 131 of the OBCA. As for the claim under s. 81 of the ESA, the motion judge observed that the appellant had pleaded that the directors were liable for unpaid vacation pay under this provision, however, no such relief had been claimed in the prayer for relief, and the appellant had not included any material facts addressing any of the statutory requirements to establish the directors’ liability under this section. Accordingly, the motion judge concluded that it was plain and obvious that the s. 131 OBCA and s. 81 ESA claims had no reasonable prospect of success, and she struck these claims without leave to amend. [11] The motion judge then dealt very briefly with the other paragraphs of the statement of claim challenged by the respondents. After observing that paras. 14-23 and 40 of the statement of claim contained predominantly evidence, she struck those pleadings. The respondents had submitted that these paragraphs, as well as paras. 56-61, contained irrelevant facts and inflammatory attacks on the corporate respondents’ integrity. She also referred to the respondents’ submission that these paragraphs were included to embarrass them rather than to advance the action in any meaningful way, and she struck the pleadings as violating r. 25.11. The motion judge went on to grant the appellant leave to amend these paragraphs, observing that the respondents had provided the appellant with a roadmap of what was required to fix the pleadings. [12] The parties returned to the motion judge as her reasons had not addressed the motion to strike the appellant’s claim under s. 248 of the OBCA. In a supplementary endorsement the motion judge noted the respondents’ arguments: that the appellant did not have standing to make a claim under s. 248, that he had not pleaded the necessary material facts to support the claim, and that he had not pleaded his reasonable expectations or that the conduct of the directors affected his ability to recover judgment against the corporate defendants. The motion judge struck the s. 248 OBCA claim with leave to amend, again stating that the respondents had provided the appellant with a roadmap of what was required to fix the pleading. [13] In a separate endorsement, after receiving the parties’ written submissions, the motion judge awarded costs of the motion to the respondents, fixed at $14,569.52. D. JURISDICTION to hear the appeal [14] As a preliminary issue, the respondents raise two objections to this court’s jurisdiction to deal with certain issues on this appeal. First, they assert that the order striking the s. 131 OBCA claim is an “order made under” the OBCA which, pursuant to s. 255 of the OBCA, must be appealed to the Divisional Court. Second, they say that the motion judge’s order striking pleadings in the statement of claim with leave to amend can only be appealed to the Divisional Court, with leave, pursuant to s. 19(1)(b) of the Courts of Justice Act , R.S.O. 1990, c. C.43 (“CJA”), as these parts of the order are interlocutory. [15] It is not always clear whether an order dealing with an OBCA claim at an early stage is an “order made under” the OBCA. The question is whether the court, in making the order, was exercising a power sufficiently close to a legislative source under the OBCA or whether the source of authority is the common law or equity as opposed to the OBCA: see Ontario Securities Commission v. McLaughlin , 2009 ONCA 280, 248 OA.C. 54, at para. 16; Buccilli v. Pillitteri , 2016 ONCA 775, 410 D.L.R. (4th) 480, at para. 19. In McLaughlin O’Connor A.C.J.O. held that a final order dismissing a motion to amend a statement of defence to plead certain defences against an oppression claim was such an order, such that the proper route of appeal was to the Divisional Court. In Buccilli , a panel of this court concluded that an order requiring certain interim payments to be made pending a later trial “to determine the value of the plaintiffs’ declared interests and the appropriate equitable and monetary remedies under the [OBCA]” was rooted in a common law or equitable claim, such that s. 255 of the OBCA did not apply. [16] It is unnecessary to determine whether the part of the motion judge’s order that dismissed the appellant’s s. 131 OBCA claim, standing alone, is an “order made under” the OBCA and appealable to the Divisional Court under s. 255. Section 6(2) of the CJA permits this court to hear and determine an appeal that lies to the Divisional Court “if an appeal in the same proceeding lies to and is taken to the Court of Appeal.” This was an alternative basis for this court having taken jurisdiction in Buccilli , and it is equally available in the present case where there is also an appeal from the final order striking the s. 81 ESA claim. [17] Section 6(2) also permits this court to take jurisdiction over the appeal of the interlocutory aspects of the order of the motion judge because there are aspects of the order that are appealable to this court. The motion judge struck certain claims without leave to amend (a final order) and other claims and paragraphs with leave to amend (an interlocutory order). This court can take jurisdiction under s. 6(2) where the issues relating to the final and interlocutory aspects of the order are so interrelated that once the issues arising from the final aspects of the order were before this court, leave would inevitably have been granted on the issues arising from the interlocutory portions: see Lax v. Lax (2004), 239 D.L.R. (4th) 683 (Ont. C.A.), at para. 9; Azzeh v. Legendre , 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26, leave to appeal refused, [2017] S.C.C.A. No. 289; 2099082 Ontario Limited v. Varcon Construction Corporation , 2020 ONCA 202, 97 C.L.R. (4th) 26, at para. 17; and Cooper v. The Laundry Lounge, Inc. , 2020 ONCA 166, at para. 2. This is such a case. The order under appeal arose out of a motion to address the sufficiency of a single pleading – the statement of claim in a wrongful dismissal action. [18] Accordingly, I would not give effect to the respondents’ challenge to this court’s jurisdiction over the appeal of certain aspects of the motion judge’s order, and I will now proceed to consider and determine all of the issues raised in this appeal. E. DISCUSSION [19] At issue on this appeal is whether the motion judge erred in striking the s. 131 OBCA and s. 81 ESA claims against the individual respondents without leave to amend and the s. 248 OBCA claim with leave to amend under r. 21.01(1)(b), and in striking with leave to amend paras. 14-23 and 40 of the statement of claim as pleading evidence (contrary to r. 25.06(1)) and as inflammatory and irrelevant (under r. 25.11(b)). (1) The Order Striking Claims Under Rule 21.01(1)(b) [20] I consider first the motion judge’s order striking the s. 81 ESA and the s. 131 OBCA claims without leave to amend and the s. 248 OBCA claim with leave to amend. The motion judge struck these claims under r. 21.01(1)(b) for failure to disclose a reasonable cause of action. The test is whether, assuming that the facts as stated can be proved, and reading the pleading generously with allowances for drafting deficiencies, it is “plain and obvious” that an action or a claim within the action will not succeed: see Hunt v. Carey Canada Inc. , [1990] 2 S.C.R. 959, at pp. 979-80; Wellington v. Ontario , 2011 ONCA 274, 105 O.R. (3d) 81, at para. 14, leave to appeal refused, [2011] S.C.C.A. No. 258; Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada) , 2017 ONCA 526, at paras. 15-16. Striking pleadings under this rule serves to “[weed] out the hopeless claims and [ensure] that those that have some chance of success go on to trial”: see R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19. A pleading in a statement of claim will be deficient under this rule where it fails to plead material facts required to sustain a particular cause of action: see Apotex Inc. v. Eli Lilly and Co. , 2015 ONCA 305, 125 O.R. (3d) 561, at para. 21, leave to appeal refused, [2015] S.C.C.A. No. 291. The court should always consider whether the deficiency can be addressed through an amendment to the pleading: see Tran v. University of Western Ontario , 2015 ONCA 295, at paras. 26-27. [21] As I will explain, in my view the motion judge was correct to have struck the claim under s. 81 of the ESA without leave to amend as it is plain and obvious that the claim could not succeed, and no amendment could have rectified the pleading in the circumstances of this case. However, the motion judge ought not to have struck the s. 131 OBCA claim without leave to amend. A claim for unpaid vacation pay under this section could be asserted by the appellant against the individual respondents, with the appropriate amendments to the pleading. Finally, the motion judge did not err in striking the s. 248 claim with leave to amend, as the appellant did not plead the necessary material facts to support the claim, and the respondents do not cross-appeal the motion judge’s refusal to strike the s. 248 claim without leave to amend. (a) The Section 81 ESA Claim [22] Section 81 of the ESA provides that the directors of an employer are liable for an employee’s unpaid wages (which includes vacation pay) in certain circumstances enumerated in ss. 81(1)(a) through (d). Section 81(1) is found under Part XX of the ESA entitled “Liability of Directors”, and provides as follows: 81(1) The directors of an employer are jointly and severally liable for wages as provided in this Part if, (a) the employer is insolvent, the employee has caused a claim for unpaid wages to be filed with the receiver appointed by a court with respect to the employer or with the employer’s trustee in bankruptcy and the claim has not been paid; (b) an employment standards officer has made an order that the employer is liable for wages, unless the amount set out in the order has been paid or the employer has applied to have it reviewed; (c) an employment standards officer has made an order that a director is liable for wages, unless the amount set out in the order has been paid or the employer or the director has applied to have it reviewed; or (d) the Board [the Ontario Labour Relations Board] has issued, amended or affirmed an order under section 119, the order, as issued, amended or affirmed, requires the employer or the directors to pay wages and the amount set out in the order has not been paid. [23] A director’s liability for unpaid wages does not include severance or termination pay pursuant to s. 81(3), but it does include liability for vacation pay as provided for under the ESA or an employment contract for up to 12 months: ss. 81(3), (4) and (7). The appellant confirms that the only unpaid wages he is seeking from the individual respondents are three weeks’ vacation pay. [24] The appellant submits that the motion judge erred when she struck his s. 81 ESA claim because a claim for vacation pay was not included in the prayer for relief in para. 1 of the statement of claim. He argues that he ought to have been granted leave to amend to assert such a claim in his prayer for relief. The respondents contend that the motion judge properly struck the s. 81 ESA claim because the appellant did not and could not plead the existence of one of the necessary preconditions for a claim under that section. [25] The appellant argues that he is entitled to make a claim against the individual respondents in this action under s. 81 of the ESA without the need for any of the conditions set out in s. 81(1). In asserting that his pleading is sufficient he relies on s. 81(2) of the ESA (which provides that proceedings against the employer under the ESA need not have been exhausted before proceedings may be commenced to collect wages from directors under Part XX of the ESA), as well as two cases: Ricci v. Chippingham Financial Group Ltd. , 2017 ONSC 6958 and Beadle v. Gudgeon Brothers Ltd. , 2006 CanLII 2612 (Ont. S.C.). [26] Neither Ricci nor Beadle provides a persuasive precedent for the appellant. Ricci involved the appeal of an order to produce certain documents on discovery, where the appeal judge rejected the argument that the Master could not order production of documents relevant to, among other things, a s. 81 claim, before one of the preconditions in s. 81(1) had been met. The case did not deal with the sufficiency of the plaintiff/respondent’s pleading of a s. 81 ESA claim. In Beadle the motion judge refused to strike a claim under s. 81 of the ESA, stating that “the pleading disclose[d] a cause of action against the moving defendants because on the date the claim was issued, the plaintiff was owed unpaid wages and accrued vacation pay by the corporate defendant”, however, there is no indication of what was specifically pleaded and there was no further analysis of the issue. The plaintiff had acknowledged in evidence (the court was also considering a summary judgment motion) that he had been paid his outstanding wages and vacation pay, so the s. 81 claim would not have succeeded in any event. [27] On a plain reading of the ESA, a director is only liable for an employee’s outstanding unpaid wages under s. 81 in certain prescribed circumstances. The employee must have filed a claim in the employer’s receivership or bankruptcy (under s. 81(1)(a)); an employment standards officer must have made an order that the employer or a director is liable for the wages, which order is not under review (under ss. 81(1)(b) and (c)); or the Board must have issued, amended or affirmed such an order (under s. 81(1)(d)). [28] Section 97(1) provides that a person who files a complaint under the ESA with respect to an alleged failure to pay wages may not commence a civil proceeding with respect to the same matter. In other words, employees are put to an election: to pursue their claims under the summary procedures provided for under the ESA (including the complaints procedure and orders by employment standards officers under ss. 103, 106 and 107, with the potential for review under s. 116) or to pursue litigation in the courts. It is in this context that s. 81(2) must be understood, permitting an employee to pursue claims against both the employer and directors in proceedings under Part XX of the ESA , which provides for directors’ liability in certain circumstances. [29] Typically, a claim against a director for unpaid wages under s. 81 of the ESA will operate and be enforced within the statutory regime. Assuming without deciding that a s. 81 claim could be pursued in a wrongful dismissal action, the appellant failed to set out any material facts in the statement of claim that, if proved, could satisfy any of the statutory preconditions. In the circumstances of this case, this defect cannot be cured with an amendment. The appellant’s only proposed amendment is to amend para. 1 to specifically include this claim in the prayer for relief. He does not assert that any of the four preconditions exist nor does he propose to plead them; rather his position is simply that they are unnecessary. It is plain and obvious that the appellant’s s. 81 ESA claim cannot succeed and as such it was properly struck without leave to amend. (b) The Section 131 OBCA Claim [30] The appellant also seeks to pursue his claim for unpaid vacation pay against the individual respondents under s. 131 of the OBCA. Section 131 provides that the directors of a corporation are jointly and severally liable for up to six months’ wages and for accrued vacation pay for up to one year if (a) the corporation is sued in the action and execution is returned unsatisfied; or (b) the corporation is involved in certain insolvency proceedings and the employee’s claim has been proved: 131(1) The directors of a corporation are jointly and severally liable to the employees of the corporation for all debts not exceeding six months’ wages that become payable while they are directors for services performed for the corporation and for the vacation pay accrued while they are directors for not more than twelve months under the Employment Standards Act , and the regulations thereunder, or under any collective agreement made by the corporation. (2) A director is liable under subsection (1) only if, (a) the corporation is sued in the action against the director and execution against the corporation is returned unsatisfied in whole or in part; or (b) before or after the action is commenced, the corporation goes into liquidation, is ordered to be wound up or makes an authorized assignment under the Bankruptcy and Insolvency Act (Canada), or a receiving order under that Act is made against it, and, in any such case, the claim for the debt has been proved. [31] The motion judge observed that the appellant failed to plead material facts in the statement of claim necessary to establish a cause of action against the defendant directors pursuant to s. 131 of the OBCA. [32] The respondents argue that s. 131 of the OBCA has no application to the appellant’s claim as framed in the statement of claim. The only place where s. 131 is mentioned is at para. 57, which pleads that the individual respondents are jointly and severally liable under s. 131 (and under s. 248) of the OBCA for “the aforementioned claims”, which would include all of the appellant’s claims for damages, including for compensation in lieu of reasonable notice. The respondents correctly point out that the scope of s. 131 is limited to a claim for unpaid wages and vacation pay. [33] In argument the appellant clarified that, although pleaded broadly, his intention is to claim only unpaid vacation pay against the directors under s. 131 of the OBCA. He says that the material facts were pleaded – that he was owed vacation pay at the date of termination and that it remained unpaid, and that he is entitled to make the claim at this time. He asserts that he is entitled to include the claim against the individual respondents in the action as this is contemplated by s. 131(2). [34] I do not agree with the motion judge that the material facts to support a claim against the individual respondents under s. 131 have not been pleaded. While the s. 131 pleading as it currently stands is too broad (the “aforementioned claims” would include claims for damages for wrongful dismissal that are not covered under s. 131), the appellant did plead in para. 58 of the statement of claim that he was entitled to three weeks’ vacation pay at the time of his dismissal and that this pay was not received. While the appellant only pleaded this in para. 58 as a claim under s. 81 of the ESA, the claim for vacation pay is a claim that he can assert against the individual respondents under s. 131 of the OBCA. Further, it is not premature to assert the claim in this action: s. 131(2)(a) contemplates that the corporate employer will be sued in the same action as the director, although the director will not become liable to pay the accrued vacation pay until execution against the corporation is returned unsatisfied. [35] While the pleading is awkward, the appellant has pleaded the necessary material facts to support a claim against the individual respondents under s. 131 of the OBCA for unpaid vacation pay. The statement of claim discloses a reasonable cause of action under s. 131 of the OBCA and the claim should not have been struck. The appellant will however need to amend the pleading to clarify that his claim under that section against the individual respondents is limited to a claim for vacation pay. (c) The Section 248 OBCA Claim [36] The appellant is seeking relief under s. 248 of the OBCA against the individual respondents as part of his wrongful dismissal action. Section 248 provides a “complainant” with a remedy for “oppression” – conduct that is “oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer of the corporation”. “Complainant” is defined at s. 245 as ( a) a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a security of a corporation or any of its affiliates, (b) a director or an officer or a former director or officer of a corporation or of any of its affiliates, or (c) any other person who, in the discretion of the court, is a proper person to make a s. 248 application. [37] The s. 248 OBCA claim is asserted at paras. 56-61 of the statement of claim under the heading “Director’s Liability”. As already noted, these paragraphs seek to hold the individual respondents liable for various kinds of damages, relying in part on the statutory claims. The appellant alleges at para. 56 that the individual respondents “used their directorial powers oppressively by directing Fiera to dismiss [him] for cause”, and at para. 57 he pleads that they “exercised the powers of directors in an oppressive manner, without legal or moral justification, and as such are jointly and severally liable for the aforementioned claims pursuant to sections 131 and, inter alia , 248 of the [OBCA].” At para. 59 he pleads that the individual respondents did not carry out their duties in good faith when they failed to instruct Fiera to remit the wages owing to him before the dismissal, made the decision on behalf of Fiera to dismiss him without notice or compensation, and did not issue him a record of employment. He pleads at para. 60 that he “remains a creditor and complainant of Fiera pursuant to the [OBCA]” and at para. 61 he pleads that the individual respondents are “liable for all compensation and damages sought against Fiera, jointly and severally”, that are claimed in his prayer for relief. [38] The respondents sought to strike the appellant’s s. 248 claim under r. 21.01(1)(b). The motion judge, in supplementary reasons, struck the oppression claim with leave to amend, observing that the respondents had provided the appellant with a roadmap of what is required to fix the pleading. On the motion to strike, the respondents had submitted that the appellant did not have standing to make the claim, that he did not plead what the reasonable expectations were or what the conduct was of the defendant directors which disregarded his reasonably held expectations, and that he did not plead that the directors’ conduct affected his ability to recover judgment against the corporate defendants. It appears that the motion judge may have been referring to these arguments on the motion to strike as the “roadmap” guiding the appellant on how to fix his pleadings. [39] The appellant argues that the motion judge erred in striking the s. 248 OBCA oppression claim, as he had pleaded the necessary material facts, and in failing to provide an explanation for striking the claim. [40] The respondents argue that the motion judge correctly struck the s. 248 OBCA oppression claim as the appellant does not have standing to advance such a claim and has failed to plead that the conduct of the directors disregarded his reasonable expectations. The respondents however did not cross-appeal the motion judge’s refusal to strike the s. 248 claim without leave to amend. [41] The motion judge did not err in striking the oppression claim under s. 248 of the OBCA with leave to amend. [42] I begin by noting that wrongful dismissal by itself will not usually justify a finding of oppression; nor is a terminated employee always a “complainant” who has standing to bring an oppression proceeding under s. 248 of the OBCA. Typically, oppression claims that are asserted in the context of wrongful dismissal are made by shareholder employees whose interests have been unfairly disregarded: see e.g. Walls v. Lewis (2009), 97 O.R. (3d) 16 (S.C.). Claims have been asserted successfully by non-shareholder employees where a director’s conduct has prevented the corporate employer from paying wages or wrongful dismissal damages: see e.g. Churchill v. Aero Auction Sales , 2019 ONSC 4766, 147 O.R. (3d) 44 (the director, also the plaintiff’s former common law spouse, withheld wages, terminated her employment, caused the corporation to cease operations, and transferred its assets to a related corporation); Downtown Eatery (1993) Ltd. v. Ontario (2001), 200 D.L.R. (4th) 289 (Ont. C.A.), leave to appeal refused, [2001] S.C.C.A. No. 397 (directors caused the company to go out of business and transferred its assets to related companies they owned and operated a few months before a scheduled wrongful dismissal trial). Similarly, such a claim was permitted to proceed as part of a proposed class proceeding in Brigaitis v. IQT, Ltd. c.o.b. as IQT Solutions , 2014 ONSC 7, 22 B.L.R. (5th) 297, at paras. 90-99, where it was alleged that the directors had diverted funds for personal use before the corporation terminated the employment of employees, leaving insufficient funds to pay termination pay and other amounts. [43] It is not sufficient for a terminated employee, as here, to plead that the individual defendants acted oppressively as directors of the corporate defendants, and to claim all of their damages against such individuals, relying on s. 248 of the OBCA. Nor is it sufficient to allege that the directors directed the appellant’s termination, or that they failed to ensure that he received a record of employment. [44] The necessary elements of an oppression claim were recently articulated by the Supreme Court in Wilson v. Alharayeri , 2017 SCC 39, [2017] 1 S.C.R. 1037. First, the complainant must identify the reasonably held expectations they claim to have been violated by the conduct at issue. Second, the complainant must show that these reasonable expectations were violated by corporate conduct that was oppressive or unfairly prejudicial to or that unfairly disregarded the interests of any security holder, creditor, director or officer of the corporation: at para. 24. The Supreme Court in Wilson also observed that to impose personal liability, there must be oppressive conduct that is properly attributable to the director’s implication in the oppression and the imposition of personal liability must be fit in all the circumstances: at paras. 47-48. [45] The appellant did not address these elements in his pleading. He did not plead his reasonable expectations of the directors or that those reasonable expectations were violated by oppressive corporate conduct. The appellant’s reasonable expectations cannot simply be inferred from his pleadings of what the directors did or failed to do. As such, there were insufficient material facts in the statement of claim to establish a claim for oppression under s. 248 of the OBCA. [46] I would therefore uphold the motion judge’s order striking the s. 248 claim with leave to amend. Before leaving this ground of appeal however I would observe that nothing in these reasons is intended to determine whether a claim for an oppression remedy is appropriate in the circumstances of this case, whether the appellant would have standing as a “complainant” (which is in the discretion of the court), or even whether, having been granted leave to amend his pleadings, the appellant will be able to plead the facts that are necessary to seek an oppression remedy against the individual respondents under s. 248. (2) The Order Striking Paras. 14-23 and 40 With Leave to Amend [47] I will next address the motion judge’s order striking paras. 14-23 and 40 of the statement of claim with leave to amend. The respondents moved to strike these paragraphs on the basis that they plead evidence, contrary to r. 25.06(1), and contain pleadings that are “scandalous, frivolous and vexatious”, contrary to r. 25.11(b). The motion judge struck these paragraphs with leave to amend. She did not identify the specific amendments that would address the deficiencies, observing that the respondents had provided the appellant with a roadmap of what was required to fix the pleadings. [48] Rule 25.06(1) provides that pleadings are to contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which the facts are to be proved. As Perell J. noted in Jacobson v. Skurka , 2015 ONSC 1699, 125 O.R. (3d) 279, at paras. 43-44, t he difference between pleading material facts and pleading evidence is a difference in degree and not of kind, and the prohibition against pleading evidence is designed to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts. As the same judge observed in Mirshahi v. Suleman , 2008 CanLII 64006 (Ont. S.C.), seeking to strike a pleading for pleading evidence can be a technical objection and pleading evidence may be closer to providing particulars, which in most cases is more helpful than harmful: at para. 21. Particulars are not evidence but “additional bits of information, or data, or detail, that flesh out the ‘material facts’”: see Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 256 D.L.R. (4th) 407 (Ont. C.A.), at paras. 89-90, citing Copland v. Commodore Business Machines Ltd. (1985), 52 O.R. (2d) 586 (S.C., Master), aff’d (1985), 52 O.R. (2d) 586 (note) (H.C.). [49] Rule 25.11(b) provides that the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is “scandalous, frivolous or vexatious”. A scandalous pleading includes those parts of a pleading that are irrelevant, argumentative or inserted for colour, and unfounded and inflammatory attacks on the integrity of a party: see George v. Harris , [2000] O.J. No. 1762 (S.C.), at para. 20. The focus in considering a challenge to a pleading under this rule is on the relevance of the pleading to a cause of action or defence. As this court recently noted in Huachangda Canada Holdings Inc. v. Solcz Group Inc. , 2019 ONCA 649, 147 O.R. (3d) 644, at para. 15, “[a] fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious. On the other hand, a pleading that raises irrelevant or superfluous allegations that cannot affect the outcome of an action is scandalous, frivolous or vexatious, and should be struck out”. [50] The appellant contends that the motion judge ought to have simply refused to strike paras. 14-23 and 40. He asserts that these paragraphs contain narrative facts related to his length of employment, the history of his working relationships, and the breaches of his employment contract and reprisals. The respondents assert that this court should not interfere with the motion judge’s order striking these paragraphs with leave to amend on the basis that they contain evidence, inflammatory attacks and irrelevant facts. [51] I begin by observing that the motion judge’s reasons for striking these paragraphs with leave to amend are conclusory. She stated only that she found that paras. 14-23 and 40 contain predominantly evidence contrary to r. 25.06(1) and, after referring to the respondents’ submissions that these paragraphs include irrelevant facts and inflammatory attacks on the corporate respondents’ integrity and have been included to embarrass the respondents rather than to advance the action in any meaningful way, she held that these pleadings ought to be struck as they violate r. 25.11. [52] Her reasons do not explain what the deficiencies are, which parts of what paragraphs contain evidence, or which parts contain irrelevant facts and inflammatory attacks. There is nothing in the reasons that would assist the appellant in amending his pleading to address her concerns. Again, the motion judge refers to the respondents as having provided the appellant with a roadmap of what is required to fix the pleadings, however there was nothing in the record on this appeal that pointed to a “roadmap” for any required amendment. [53] Since the motion judge did not provide reasons that would assist in understanding why she struck paras. 14-23 and 40, or the amendments required to address her concerns, it falls to this court to consider the matter afresh. (a) Paragraphs 14 to 23 [54] Paragraphs 11-24 of the statement of claim are preceded by the heading “Employment History”. The appellant pleads that he was hired by Fiera as a security guard, and that he moved to the position of boxing line operator, to leadhand, and eventually back to boxing line operator. He pleads, at paras. 14-23, that certain changes to his position as well as a reduction in his hours resulted from ongoing “production-related conflicts” he had with the Director of Manufacturing who routinely pressured him to overlook discrepancies in the raw goods, and that he refused to do so. [55] The respondents submit that these paragraphs contain irrelevant and immaterial facts that are unrelated to the appellant’s wrongful dismissal that have been inserted for the sole purpose of attacking the integrity of the corporate respondents. They point to pleadings in paras. 16 and 19 of irrelevant facts concerning other employees, and they argue that the pleadings of historical conflict during the appellant’s employment and well before his termination are irrelevant to his wrongful dismissal claim. [56] I do not agree with the respondents that paras. 14-23, or any parts of these paragraphs, should be struck as pleading evidence or as containing irrelevant facts inserted only for atmosphere and to impugn the corporate respondents’ integrity. At para. 37(a) the appellant pleads that “Fiera’s allegations of time-theft are deliberately false and were deployed as a means to rid itself of an employee who: (a) repeatedly raised concerns about Fiera’s failure to observe manufacturing, health and safety, and storage requirements”. The facts pleaded at paras. 14-23 are relevant to the appellant’s assertion that he was fired, not because of the alleged time-theft, but as a reprisal for having brought certain violations of manufacturing requirements to the attention of management. They plead a course of conduct alleged to have culminated in the appellant’s termination as a reprisal for repeatedly raising issues. The references to two other employees at paras. 16 and 19 are not inflammatory or inserted merely for colour; rather they are part of the pleading that the appellant, after raising issues, was instructed to train other employees to replace him in the leadhand position, resulting in his return to the position of boxing line operator. While it was unnecessary for the appellant to identify the other employees by name in the statement of claim, this does not in itself amount to a pleading of evidence that would require this part of the pleading to be struck. [57] Accordingly, I would not strike any of these paragraphs, and I do not see any reasoned basis for requiring their amendment. (b) Paragraph 40 [58] Paragraph 40 is a lengthy paragraph that begins as follows: 40. In support of the allegations referred to in paragraph 37(a) above, Abbasbayli states that during his tenure at Fiera, he observed , documented , recorded and regularly reported to Fiera’s management, the following violations that, he states, routinely occurred, but to no avail. In this regard, Abbasbayli pleads that, inter alia , the following violations occurred…. [Emphasis in original.] [59] Paragraph 40 continues with three headings: (i) Violation of Specific Requirements for the Refrigeration and Storing of Raw Goods; (ii) Violation of Specific Requirements for the Production of Allergen Goods; and (iii) Violation of Specific Requirements for the Storing of Dough. Each of the first two headings is followed by a list of instances of violations, identified by date, product, and code, that the appellant “ observed , documented , recorded and regularly reported to Fiera’s management” (emphasis in original). Under the first two headings, the appellant also asserts that the corporate respondents routinely breach specific requirements for the storing of raw goods and routinely mix allergen and non-allergen goods. The third heading is followed by three additional allegations, that the corporate respondents (a) routinely violate requirements for storing dough by storing it in places that would allow it to expand and re-using dough that falls on the floor for orders that call for the same type of dough; (b) routinely defreeze, repack and then refreeze their raw goods, resulting in substandard baking properties; and (c) routinely mix stale baked goods with water to create a mixture that is combined with fresh dough which is then used to manufacture various goods. [60] The respondents contend that para. 40 pleads evidence and makes allegations of wrongdoing against the corporate respondents that are inserted solely to impugn their integrity and for atmosphere. The appellant argues that this paragraph contains facts that are related to his pleading of bad faith conduct and the allegation at para. 37(a) that his employment was terminated as an act of reprisal after he “repeatedly raised concerns about Fiera’s failure to observe manufacturing, health and safety, and storage requirements”. [61] I will deal first with the argument that para. 40 contains evidence. This is primarily based on the fact that the paragraph contains a lengthy list of violations that the appellant claims he observed and reported to management (at paras. 40(i)(a)-(fff) and (ii)(a)-(ii)). Each entry includes a date, product, and code, which presumably corresponds with Fiera’s records. While it may well have been sufficient for the appellant to have pleaded that he observed, documented, recorded and regularly reported to Fiera’s management violations between the dates indicated (April 3, 2017 to March 12, 2018), or even a certain number of violations, the list of the various instances is a pleading of particulars, not evidence. I would not strike these parts of para. 40 as pleading evidence. [62] I turn to the assertion that para. 40 contains irrelevant facts and inflammatory attacks – allegations of wrongdoing that are inserted only for colour and to impugn the integrity of the corporate respondents. I agree that it is appropriate to strike under r. 25.11(b) allegations of wrongdoing or illegal conduct of a party which have no relevance to a claim or defence: see e.g. Foodcor Services Corp. v. Seven-Up Canada Inc. , [1998] O.J. No. 2576 (Gen. Div.), at para. 32; Ontario Consumers Home Services Inc. v. EnerCare Inc. , 2014 ONSC 4154, at paras. 45-47; Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank , [1997] O.J. No. 1 (Gen. Div.), at para. 12. In the present case, the question is whether the pleading of violations of various requirements for the production and storage of bakery products by the corporate respondents is relevant to the appellant’s claim. [63] In my view, most of what is contained in para. 40 is relevant to the appellant’s claim that his employment was terminated as a reprisal. It identifies the occasions when he observed, documented, recorded and reported alleged manufacturing deficiencies and regulatory violations: at para. 40(i), violations of requirements for the refrigeration and storing of raw goods and at para. 40(ii), violations of requirements for the production of allergen goods. At the conclusion of each of para. 40(i) and (ii) the appellant pleads that “based on his extensive knowledge of Fiera’s violations” approximately 25% of all of its raw goods have been repacked in breach of requirements for the storage of raw goods and that Fiera disregards the requirements for the production of allergen goods. [64] Paragraph 40(iii) however is different. Under the heading “Violation of Specific Requirements for the Storing of Dough” the appellant pleads various egregious practices by the corporate respondents, but there is no indication that the appellant “ observed , documented , recorded and regularly reported ” (emphasis in original) these practices. In contrast to the allegations under paras. 40(i) and (ii), there is no list of incidents, nor does the appellant connect these general allegations to his own knowledge or experience. Rather, he simply “states” and “pleads” the egregious practices described at para. 40(iii). There is no apparent connection between para. 40(iii) and the appellant’s claim that his employment was terminated as a reprisal for bringing violations to the corporate respondents’ attention. As such, it is appropriate to strike these other allegations of wrongdoing, which are not relevant to the appellant’s wrongful dismissal claim. [65] Accordingly, I would set aside the motion judge’s order striking paras. 14-23 and 40 with leave to amend and instead only strike para. 40(iii) without leave to amend. No other amendment to that paragraph is required. (3) Costs in the Court Below [66] The motion judge awarded costs to the respondents in the sum of $14,569.52, based on their success on the motion. The appellant seeks to appeal the costs award. [67] A motion judge’s costs award is entitled to deference. Unless the judge has made an error in principle or the costs award is plainly wrong, an appellate court should not set aside the costs award: see Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. Where, as in this case, an appeal is allowed in whole or in part, it is appropriate to revisit the costs award in the court below having regard to the outcome on appeal. [68] The appellant asserts that the motion judge erred in principle by failing to make a costs award that was proportionate, and in double-counting certain entries in the respondents’ bill of costs. I disagree. In the context of the appellant’s wrongful dismissal claim asserting various claims against the corporate and individual respondents, and the range of issues raised by the motion, the award of partial indemnity costs of $14,569.52, inclusive of HST and disbursements, reflected the respondents’ substantial success at first instance, was proportionate and fair, and did not contain any element of double-counting. [69] I would however reduce the costs award in the court below to reflect the appellant’s partial success on appeal: see Mihaylov v. 1165996 Ontario Inc. , 2017 ONCA 218, at para. 8; Mitchell v. Lewis , 2017 ONCA 105, at paras. 3-5. I would vary the motion judge’s costs order to fix the respondents’ costs at $8,000, inclusive of disbursements and HST. F. DISPOSITION [70] For these reasons, I would allow the appeal to the extent and on the terms indicated. I would not award any costs of the appeal. Released: February 16, 2021 (“K.M.v.R.”) “K. van Rensburg J.A.” “I agree. C.W. Hourigan J.A.” “I agree. David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Actava TV, Inc. v. Matvil Corp., 2021 ONCA 105 DATE: 202102019 DOCKET: C68521 Fairburn A.C.J.O., Pepall and Roberts JJ.A. BETWEEN Actava TV, Inc., Master Call Communications, Inc., Master Call Corporation and Rouslan Tsoutiev Applicants (Respondents) and Matvil Corp. Respondent (Appellant) Clifford Cole and Alex D. Zavaglia for the appellant Kevin O’Brien, Lauren Harper and Carla Breadon for the respondents Heard: November 10, 2020 by video conference On appeal from the order of Justice Barbara A. Conway of the Superior Court of Justice, dated July 6, 2020. Pepall J.A.: Introduction [1] This appeal addresses the enforcement of a letter of request (“LoR”). The enforcement order compels a non-party to produce its confidential and proprietary financial and valuation documents for one purpose: to assist the expert of parties to an action in the United States calculate their damages using comparative industry data. [2] The application judge in the case under appeal granted such an order to the respondents, Actava TV, Inc. (“Actava”) and other Actava-related parties, the plaintiffs in the U.S. action, against the appellant, Matvil Corp. (“Matvil”), an Ontario company that is a non-party in that action. One of the defendants in the U.S. action, Kartina Digital GmbH (“Kartina”), is Matvil’s main competitor. [3] For the reasons that follow, I would allow the appeal. Facts (1) Russian TV Channels’ First U.S. Lawsuit [4] On February 19, 2016, various Russian owners, operators, and producers of television channels that are broadcast in Russian (the “Russian TV Channels”) sued Actava, the other Actava-related respondents in this appeal, and Matvil in the United States District Court, Southern District of New York , for allegedly broadcasting content without proper licences. [5] Although its business has now changed, at the time of the lawsuit, Actava was in the business of streaming Russian-language TV channels to customers in North America. The other Actava respondents, Rouslan Tsoutiev, Master Call Communications, Inc. and Master Call Corporation, are the Chief Executive Officer of Actava and two other companies he controls. [6] Matvil is a private, Ontario-based global streaming service that broadcasts television content, predominantly from Russia, Ukraine, and former Commonwealth of Independent States countries, to customers around the world. It re-transmits content from the Russian TV Channels to subscribers. It has operated for two decades and has approximately 32 employees in Canada. [7] Shortly after the commencement of the Russian TV Channels’ U.S. action, Matvil established that it did have the necessary licences, and the Russian TV Channels withdrew their claims against it. In contrast, Actava did not have the necessary licences and, together with the other Actava respondents, entered into a settlement of the lawsuit. As part of that settlement, Actava and the other Actava respondents agreed to be bound by injunctions that prohibited certain broadcasting absent consent of the Russian TV Channels. (2) Referral Agreement [8] In September of 2016, Actava and Matvil entered into a 24-month referral agreement, whereby Actava was to provide Matvil with marketing services and refer customers to Matvil from five states in the northeastern U.S. From September 2016 to August 2018, Actava referred some customers to Matvil. Actava’s referrals represented a very small percentage of Matvil’s customers. Matvil terminated the referral agreement in August 2018. (3) Russian TV Channels’ Second U.S. Lawsuit Against Actava [9] On December 13, 2016, the Russian TV Channels sued Actava and the other Actava respondents for contempt, alleging that they had breached the injunctions entered into as part of the parties’ settlement of the first action. This second action was dismissed in the fall of 2017. During the lifespan of this lawsuit, Actava continued to refer new clients to Matvil but placed its advertising services on pause. (4) Actava’s U.S. Lawsuit Against Russian TV Channels and Kartina [10] On July 23, 2018, Actava and the other Actava respondents sued the Russian TV Channels in the United States District Court, Southern District of New York. They later added Kartina as a defendant. [11] In their lawsuit, Actava and the other Actava respondents allege that the Russian TV Channels and Kartina engaged in an unlawful campaign to interfere with Actava’s business. They assert that the Russian TV Channels and Kartina’s actions prevented Actava from performing its referral agreement with Matvil for approximately 10 months and that they pressured Matvil to terminate the referral agreement. Actava and the other Actava respondents claim damages for tortious interference, malicious prosecution, breach of contract, and unfair and deceptive business practices in violation of s. 349 of the New York General Business Law. The damages requested include Actava’s lost revenue and profits arising from the termination of the referral agreement. [12] Matvil is not a party to Actava’s U.S. action nor do any of the parties to that action make any allegations of wrongdoing against it. Its conduct is not in issue and it has no interest in the U.S. action. [13] Actava has in its possession all documents concerning Actava that were exchanged between any Russian TV Channel and Matvil between June 1, 2016 and December 31, 2018 and all documents concerning Matvil’s termination or prospective termination of the referral agreement. [1] (5) The LoR (a) The Request for Matvil’s Financial Information [14] To calculate Actava’s damages in the U.S. action, Actava’s U.S. damages expert, Sidney Blum, was of the view that he would like to calculate Actava’s damages using the “yardstick” method of assessment. This looks at Actava’s actual growth during the subject period and compares it to the financial results of “other ‘comparable’ companies in the same industry”. [2] There are no publicly-traded companies that carry on business similar to that of Actava and, although there is illegal activity, only two other companies legally provide Russian broadcasting services in North America: Kartina and Matvil. [15] Actava hypothesizes that its own revenues would have followed an upward trajectory similar to Matvil’s. That said, there is no evidence that Matvil’s profits were on an upward trajectory, a fact acknowledged by Actava’s counsel in oral submissions before us. Indeed, the affidavit of Actava’s general counsel speculates that “[i]f Matvil’s market share in the United States and Canada grew, Actava’s position is that its profits would have followed a similar upward trajectory.” [16] Actava attempted unsuccessfully to get the documents it desired from Matvil some months before it commenced its action against the Russian TV Channels and Kartina. Later, Actava and the other respondents moved before the U.S. court for an LoR. The proceeding was in writing and summary in nature. The only evidence filed in support was a declaration from the Actava respondents’ U.S. litigation counsel. He described the U.S. action and stated that it was Actava’s intention to argue at trial a theory of damages that linked Actava’s growth (but for the tortfeasors) to the growth of other streaming entertainment services. In the recitals, the LoR repeats Actava’s allegation that its business would have grown at a trajectory similar to that of other providers, “including but not limited to Matvil”. Actava advised Matvil that it would be bringing a motion and provided a copy of the draft request, however no consent was forthcoming from Matvil. Matvil was not given notice of the motion or served with the motion material, nor did it participate in the motion. (b) The Issuance of the LoR [17] The U.S court granted Actava’s motion and issued the LoR. The LoR originally sought the production by Matvil of all documents, including communications, between the Russian TV Channels and Matvil concerning either Actava or Mr. Tsoutiev between June 1, 2016 and December 31, 2018; and all documents, excluding communications, concerning Matvil’s termination or prospective termination of the referral agreement, including correspondence between Matvil, on the one hand, and either Actava or Mr. Tsoutiev on the other. Matvil agreed to provide this information and, as mentioned, has done so. This information is not in issue. [3] [18] Before the application judge and on appeal, only two categories of documentation sought in the LoR are in issue. The LoR seeks: (i) yearly reports, from 2015 to present, of the revenue and/or profits derived by Matvil; and (ii) all documents, from 2015 to present, containing or constituting an appraisal of Matvil’s valuation. [19] Thus, the contested production sought both pre-dates and post-dates the period of time (2016 to 2018) during which the referral agreement was in effect; it is not limited to business carried on under the referral agreement but extends to Matvil’s entire global business; and it includes not just raw data but also Matvil’s work product, that is, documents that summarize, review, analyze, value, or comment on Matvil’s financial performance, including, for example, financial statements and valuation reports prepared by external advisors. It would also require disclosure of operating expenses, including the licensing fees Matvil paid for content with different licensors, including the Russian TV Channels. The information sought is private, proprietary, and not publicly available. Other than the subset of information relating to Actava’s referrals which Matvil has already provided and which is not in issue, there is no factual nexus between Matvil’s materials and the alleged wrongful conduct on the part of the defendants to the U.S. action. [20] In summary, the information in issue is sought not because of Matvil’s involvement in the factual matrix but because it is a comparator company. Put differently, the documents are desired to assist the expert in his calculation of Actava’s damages, nothing more. (6) Actava’s Application to Enforce the LoR [21] Actava and the other Actava respondents then brought an application in the Ontario Superior Court of Justice to enforce the LoR. Matvil contested the application, asserting that it has a legitimate interest in protecting the information sought from competitors. In an affidavit sworn November 27, 2019, Matvil’s Chief Executive Officer explained some of its concerns: Even if Kartina is excluded from the parties who are provided access to the disclosure, Kartina has a close relationship with many of the Channels. The Channels operate primarily in Russia. Even with a confidentiality order in place, I believe there is a real risk of persons sharing Matvil’s financial information with Kartina and the Channels which can prove to be detrimental to the future operation of Matvil. I believe based on my experiences Canadian or US confidentiality orders are not a sufficient deterrent because of the difficulty in enforcing such orders in Russia and the importance placed there on personal relationships in business over legal obligations. I am also concerned that Actava may attempt to resume its former business of broadcasting foreign language programming in the future, and thus may resume being one of Matvil’s main competitors. Disclosing our confidential financial information to Actava may put us at a significant competitive disadvantage if, for example, Actava settles the litigation with the Channels and the injunction is lifted. [22] Actava had obtained the LoR prior to completing its discovery process in the U.S. action and before it had sought comparable information from Kartina who, as mentioned, carries on a business comparable to that of Matvil. Actava admitted that it is “impossible” and “simply not believable” that Kartina, a party to the U.S. action, does not have the sort of information Actava is seeking. It did not conduct an oral examination of Kartina. The application judge gave Actava an opportunity to seek equivalent information from Kartina, which it did. Actava’s expert then said that the productions he received were insufficient for him to opine on the damages. For its part, Matvil continued to express concern about producing the information sought and protecting its financial information. [23] On May 17, 2019, a generic protective order was issued in the U.S. action independent of the LoR. Among other things, the order provides that a producing party may designate material as “confidential”, “attorneys’ eyes only” (“AEO”) or “experts’ eyes only” (“EEO”). Where the material is designated confidential, other persons subject to the order may disclose the information to various persons, including the parties, various counsel, various witnesses, and stenographers. Where the information is designated for AEO or EEO, other persons subject to the order may disclose such information only to experts and various persons, including various counsel and stenographers. A party can object to the designation. Although the order is generic in nature, it would encompass Matvil’s productions. [24] The protective order further provides that it applies only to the pretrial phase of the action. Moreover, the parties may refer to documents marked confidential, AEO or EEO in support of written or oral argument, subject to certain requirements. To the extent any designated material is contained or reflected in any filing, counsel must make a motion to file the submission under seal. If the motion is granted, a redacted version of the sealed submission must be filed together with the sealed submission so that the public may access the redacted version. The protective order can also be amended or modified. [25] Unchallenged expert evidence from a U.S. attorney filed by Matvil on Actava’s application to enforce the LoR stated that the protective order falls short of adequately protecting Matvil’s financial information. He noted that the confidentiality designation may be challenged by a party and left to the discretion of the U.S. court. It does not apply to oral testimony or oral submissions. It does not preclude publication by anyone reporting on the trial. [26] Significantly, as Actava’s expert seeks to use Matvil’s information as a single-source comparator analysis, the identity of Matvil as the comparator will be self-evident despite the terms of any protective order. As the U.S. attorney opined, redacting or anonymizing Matvil in public filings would do little to protect Matvil’s sensitive business information. [27] On July 6, 2020, the application judge granted Actava’s application to enforce the LoR. The Application Judge’s Reasons for Decision [28] The application judge noted that the parties were satisfied that the statutory preconditions for enforcing the LoR had been met. She also observed that the U.S. court’s decision is entitled to considerable deference and she was not sitting on appeal from that decision. She considered the six factors identified in Presbyterian Church of Sudan v. Taylor (2006), 215 O.A.C. 140 (C.A.), at para. 20. [29] She discussed the issue of relevance, the first factor from Presbyterian Church , noting that Actava’s expert considered Matvil’s financial information to be highly relevant to his calculation of damages as “it is to be used as a comparator to Actava’s actual performance under the yardstick approach.” Matvil did not dispute that it would be relevant for these purposes, but its expert suggested that different valuation methods, such as the “before-and-after” method or the “sales projection” method, could be used. The application judge stated that Actava’s financial prospects were tied to Matvil’s through the referral agreement and hence the documents were relevant to the calculation of damages. [30] She also concluded that the second factor in Presbyterian Church was met. The evidence was necessary for and would be used at trial, if admissible. [31] Turning to the third Presbyterian Church factor as to whether the evidence was otherwise obtainable, Matvil had argued before the application judge that Kartina, whom Actava had named as a defendant in the U.S. action, operated in the same industry as Matvil and Actava, and that the necessary information could be obtained from Kartina. The application judge concluded, at para. 39, that “the evidence sought from Matvil is of greater value to Actava in preparing its damages calculation than the productions obtained or sought from Kartina. Even if Actava pursues Kartina for further and better productions, Actava’s damages expert, Mr. Blum, makes it clear that the nexus between Matvil and Actava provides an additional dimension that does not exist with the Kartina financial information.” [32] The application judge then turned to the issue of public policy, the fourth factor from Presbyterian Church . Matvil submitted that requiring a non-party to disclose confidential financial information for purposes of a single-source comparator analysis was contrary to public policy. Its concern was heightened by the fact that Kartina was a competitor and Actava could be too. The application judge stated that Matvil was part of the factual matrix, and that concerns about confidentiality could be addressed by the terms of the U.S. protective order and additional conditions proposed by Actava. These were that the order would be conditional on the U.S. court ordering that: Actava’s general counsel would not receive or review the financial data; the financial data would not be provided to Actava, Kartina, or the other U.S. defendants, but only to their experts and external legal counsel subject to the terms of the protective order; and the financial data would be treated as for attorneys’ and experts’ eyes only throughout the entirety of the proceeding. [33] She considered Matvil’s concern that the use of its confidential information would necessarily be revealed in a single-source comparator damages calculation. She dismissed this risk as speculative and overstated. [34] Lastly, she was satisfied that the information sought was specified and identifiable, and that the order sought was not unduly burdensome. [4] [35] The application judge accordingly granted the order requested. The Appeal [36] Matvil appealed from the application judge’s order. The order has been stayed pending disposition of the appeal. [37] Matvil advances numerous grounds of appeal, but in oral argument focused its submissions on relevance and public policy within the construct of principles of sovereignty and the applicable case law. At its most fundamental, Matvil submits that the order under appeal is the first and only order in any commonwealth jurisdiction, including Ontario, to direct a non-party to produce documentation and information for the sole purpose of informing an expert to assist a party in calculating damages. It argues that the order failed to satisfy the test for enforcement of an LoR and that the application judge erred in her application of the test and in her relevance and public policy analyses. [38] To place the dispute in context, I will first address the evolution of LoRs and the governing legal principles. I will then turn to how those principles apply to this case. (1) Legal Principles (a) Definition of an LoR [39] An LoR (sometimes also known as a letter rogatory) is the medium whereby one country, speaking through its court, seeks foreign judicial assistance that allows for the taking of evidence for use in legal proceedings: The Signe , 37 F. Supp. 819 (E.D. La. 1941), at p. 820. In Ontario, evidence may be provided voluntarily, in which case an LoR is not required. However, absent agreement, an order from an Ontario court is required to compel the production of evidence. Put differently, an LoR is unenforceable standing on its own and an Ontario court must give effect to the request by granting an order enforcing the LoR. (b) Statutory Requirements [40] The authority to enforce an LoR is found in both s. 46 of the Canada Evidence Act , R.S.C. 1985, c. C-5 and s. 60 of the Ontario Evidence Act , R.S.O. 1990, c. E.23. Although there is some debate on whether the authority is the subject matter of federal or provincial jurisdiction, as a practical matter, this is of no moment, as the statutory requirements are the same. The statutory preconditions to enforcement of an LoR are: (i) a foreign court has authorized the obtaining of evidence; (ii) the witness whose evidence is sought is within Ontario’s jurisdiction; (iii) the evidence sought relates to a proceeding pending before the foreign court; and (iv) the foreign court is a court of competent jurisdiction. The decision to grant or refuse enforcement is a discretionary one and a court may refuse to enforce LoRs even if the statutory conditions have been met. (c) Supreme Court Jurisprudence [41] The statutory requirements for enforcing LoRs have been augmented by jurisprudence. The leading decision on LoRs in Canada is the 1981 decision of the Supreme Court in R. v. Zingre , [1981] 2 S.C.R. 392, a case involving a request for assistance from Switzerland. There, at pp. 400-1, Dickson J. (as he then was), wrote: As that great jurist, U.S. Chief Justice Marshall, observed in The Schooner Exchange v. M’Faddon & Others [(1812), 7 Cranch’s Reports 116] , at pp. 136-37, the jurisdiction of a nation within its own territory is necessarily exclusive and absolute, susceptible of no limitation not imposed by itself, but common interest impels sovereigns to mutual intercourse and an interchange of good offices with each other. It is upon this comity of nations that international legal assistance rests. Thus the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction, not as a matter of obligation but out of mutual deference and respect. A foreign request is given full force and effect unless it be contrary to the public policy of the jurisdiction to which the request is directed (see Gulf Oil Corporation v. Gulf Canada Limited et al. [[1980] 2 S.C.R. 39]) or otherwise prejudicial to the sovereignty or the citizens of the latter jurisdiction. [42] Thus, three elements were said to animate the enforcement of an LoR: comity, public policy of the jurisdiction to which the request is directed, and absence of prejudice to the sovereignty or the citizens of that jurisdiction. [43] The first element, comity, is a flexible concept that “must be adjusted in light of a changing world order”: Morguard Investments Ltd. v. De Savoye , [1990] 3 S.C.R. 1077, at p. 1097. In Morguard , a case about the recognition by the courts of one province of a judgment of the courts of another province, the Supreme Court of Canada adopted, at p. 1097, the Supreme Court of the United States’ definition of comity from Hilton v. Guyot , 159 U.S. 113 (1895), at pp. 163-64: “Comity” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws [.] [Emphasis added.] [44] In doing so, the court in Morguard , at p. 1097, suggested that the modern system of private international law is grounded in principles of order and fairness, and that the content of comity must adapt to a changing world order. [45] An example of such adaptation is found in Pro Swing Inc. v. Elta Golf Inc. , 2006 SCC 52, [2006] 2 S.C.R. 612, a case that involved a request to enforce a U.S. non-monetary award. The whole court agreed that an appropriate understanding of comity suggested revising the traditional common law rule against enforcing non-monetary judgments. [5] At para. 27, Deschamps J., for the majority, wrote: “Comity is a balancing exercise. The relevant considerations are respect for a nation’s acts, international duty, convenience and protection of a nation’s citizens.” She noted that courts must take care not to emphasize the factor of respect for a nation’s acts to the point of imbalance. [6] [46] In Club Resorts Ltd. v. Van Breda , 2012 SCC 17, [2012] 1 S.C.R. 572, the Supreme Court noted, at para. 74, that comity is “a very flexible concept” and that while fairness and justice were necessary characteristics of a legal system, they could not be divorced from the requirement of predictability and stability which assure order in the conflicts system. [47] Of course, although each of Van Breda , Pro Swing , and Morguard addressed the concept of comity, none of them involved enforcement of an LoR. In any event, I do not conclude from a reading of those cases that there has been a retreat from the principles espoused by the court in Zingre . [48] Importantly, in Zingre , the Supreme Court recognized that the principles underlying the enforcement of LoRs may at times come into conflict. Notably, Dickson J. explained, at p. 401, that where sovereignty has conflicted with comity, Canadian courts have refused to order testimony for use in foreign proceedings in a number of situations. Examples given included where: (i) a request for production of documents was vague and general; (ii) discovery was sought against a non-party to the litigation, in violation of local laws of civil procedure; and (iii) the main purpose of the examination was to serve as a “fishing expedition”, a procedure which was not allowed in Canadian courts. [49] I take from these examples the need for Canadian courts to carefully consider the principles underlying the enforcement of LoRs. There is no doubt that, with globalization, the world’s community of nations, and Canada’s relationships within that community, look very different in 2021 than they did 40 years earlier in 1981 when Zingre was decided. Moreover, it must be remembered that the process for enforcement of an LoR in Canada is the same regardless of the identity of the foreign court. In my view, these considerations further reinforce the need to apply the Zingre principles rigorously. (d) Ontario Jurisprudence [50] Following Zingre , courts in Ontario have applied and supplemented the principles espoused by Dickson J. concerning the enforcement of LoRs. In 1986, in Re Friction Division Products, Inc. and E.I. Du Pont de Nemours & Co. Inc. et al. (No. 2) (1986), 56 O.R. (2d) 722 (H.C.), at p. 732, Osborne J. (as he then was) stated that for enforcement, the evidence (including the LoR) had to establish that: (i) the evidence sought is relevant; (ii) the evidence sought is necessary for trial and will be adduced at trial, if admissible; (iii) the evidence is not otherwise obtainable; (iv) the order sought is not contrary to public policy; (v) the documents sought are identified with reasonable specificity; and (vi) the order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here. In Fecht v. Deloitte & Touche (1996), 28 O.R. (3d) 188 (Gen. Div.) (“ Fecht (Gen. Div.) ”), aff’d (1997), 32 O.R. (3d) 417 (C.A.) (“Fecht (C.A.) ”), Blair J. (as he then was) adopted these factors. So did this court in Presbyterian Church , at para. 20, and in Connecticut Retirement Plans and Trust Funds v. Buchan , 2007 ONCA 462, 225 O.A.C. 106, at para. 7. In Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd. , 2013 ONCA 264, 115 O.R. (3d) 161, at para. 61, and most recently in Glegg v. Glass , 2020 ONCA 833, at para. 51, this court described the factors, with the exception of public policy, as “useful guideposts”. [51] In Connecticut Retirement Plans , having listed the six factors, Weiler J.A. for this court stated, at para. 7, that “[i]n addition, the court is required to balance two broad considerations in deciding whether to exercise its discretion to enforce the Letter Rogatory. Those considerations are the impact on Canadian sovereignty and whether justice requires the taking of commission evidence.” In Lantheus , at para. 59, Hoy J.A. for this court quoted from Doherty J.A. in France (Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 3 O.R. (3d) 705 (C.A.), at para. 37, stating: The test requires that the court, consider whether the request imposes any limitation or infringement on Canadian sovereignty, and whether justice requires an order for the taking of commission evidence. The considerations encompassed by the phrase “Canadian sovereignty”… include a[n] assessment of whether the request would give extra-territorial authority to foreign laws which violate relevant Canadian or provincial laws…; whether granting the request would infringe on recognized Canadian moral or legal principles…; and whether the request would impose an undue burden on, or do prejudice to, the individual whose evidence is requested. See also Glegg , at para. 49. Thus “Canadian sovereignty” was framed as including a consideration of whether the LoR would: (i) violate relevant Canadian or provincial law; (ii) infringe on recognized Canadian moral or legal principles; (iii) impose an undue burden on the entity of whom the request is made; or (iv) do prejudice to that entity. In addition, the justice of the enforcement request must be weighed in the balance. [52] To sum up, the principles of comity, public policy, and the absence of prejudice to the sovereignty or the citizens of Canada described by Dickson J. in Zingre are elements that continue to animate the enforcement of LoRs. In applying these principles, courts have developed a number of factors to help guide their decisions. The six non-exclusive guideposts first identified in Friction Division assist in making that determination. [7] They are not rigid preconditions: Lantheus , at para. 61; Perlmutter v. Smith , 2020 ONCA 570, 152 O.R. (3d) 185, at para. 25; and a court is not required to systematically examine each. De Havilland is an example where the court did not systematically examine each Friction Division factor. However, a court must not lose sight of the principles described in Zingre . Ultimately, this requires a court to step back and balance Canadian sovereignty considerations with the justice of the enforcement request: Connecticut Retirement Plans , at para. 7; Glegg , at para. 49. The six Friction Division guideposts are not mere proxies for those considerations. (e) Distinctions Between U.S. and Ontario [53] As mentioned, the law on LoRs in Canada applies to LoRs from all foreign jurisdictions. Given that the U.S. is Canada’s largest trading partner and neighbour, the opportunity for engagement in each other’s courts is high. As Bradley J. Freedman and Gregory N. Harney stated in their oft-quoted 1987 article “Obtaining Evidence from Canada: The Enforcement of Letters Rogatory by Canadian Courts” (1987) 21 UBC L. Rev. 351, at p. 351, “[t]he increasingly extensive business and social interaction between Canadian and foreign individuals and business entities, especially those of the United States of America, has resulted in Canadian residents becoming involved with increasing frequency in foreign civil and criminal proceedings.” Further, “a liberal approach by Canadian courts to the enforcement of foreign letters rogatory serves … to maintain harmonious international relations in general”: at p. 353. The authors noted the foundational principle of international comity and that “[i]mplicit in a request for international judicial assistance is a pledge of reciprocity: a promise that the courts of the requesting state will, in the future, provide similar assistance to the courts of the state to which the request is directed”: at p. 353. [54] Similar assistance is a laudable objective. That said, as the parties acknowledged on this appeal, while the U.S. and Canada have somewhat comparable justice systems, the rules relating to discovery are significantly dissimilar. This is highlighted in the “Sedona Canada Commentary on Enforcing Letters Rogatory Issued by an American Court in Canada: Best Practices & Key Points to Consider”, a June 2011 publication of The Sedona Conference. As the title suggests, the commentary reviews discovery in Canada and the U.S. The points raised include the following: – The rules governing discovery in the two countries differ including the scope of discovery, the ability to obtain discovery from non-parties, subsequent use of the evidence, objections to questions on discovery, and the availability of any implied undertaking rule. (Differences were also noted by the Supreme Court in Zingre , at p. 402.) – The U.S. court issuing the LoR may have done so in a perfunctory manner without consideration of the matters at issue or testing the evidence relied on in support of the request and without notice to a non-party. (I do not read this observation as a criticism; rather, it reflects the very broad discovery rules that exist in the U.S.) – Blocking statutes or legal issues such as privilege may prevent the Canadian court from enforcing an LoR. [55] On the issue of scope of discovery in the U.S., the Sedona authors point out, at p. 5, that if there is “ any possibility the information sought may be relevant” (emphasis in original), it is discoverable. Ontario’s regime is very different. On January 1, 2010, the Ontario Rules of Civil Procedure , R.R.O. 1990, Reg. 194, were amended to limit the scope of relevance to evidence that is “relevant to a matter in issue” from the former broader test of “semblance of relevance” that had developed in the jurisprudence in Ontario: The Sedona Conference, at pp. 5-6; see O. Reg. 438/08, ss. 26, 27, and 30; O. Reg. 453/09, ss. 1, 2. As the Sedona authors state, at p. 6, “[t]he evidence must be relevant to matters actually in issue, and does not include evidence that is only sought because it could lead to other matters, or ‘may’ be relevant, or may be relevant to other matters that could be in issue” (emphasis in original). Similarly, as Pamela D. Pengelley wrote in “A Compelling Situation: Enforcing American Letters Rogatory in Ontario” (2006) 85 Can. Bar. Rev. 345, at p. 353, “[c]ourts may be extremely reluctant to enforce letters rogatory that prove only that the evidence is ‘marginally relevant’ or ‘potentially relevant’” (footnotes omitted). [56] In addition, as stated in Riverview-Trenton Railroad Company v. Michigan Department of Transportation , 2018 ONSC 2124, 13 L.C.R. (2d) 95, at para. 35, discovery from non-parties is the norm in U.S. civil litigation. This is not the case in Ontario. Indeed, unlike in the U.S., in Ontario, an order of the court is required to examine a non-party [8] or to compel a non-party to produce documents: see Rules of Civil Procedure , rr. 31.10, 30.10. Thus, examination of, and production from, a non-party is the exception, not the rule, in Ontario. [57] Given the vastly more permissive rules governing discovery in the U.S., it is fair to conclude that reciprocity is not an even balance. However, as this court observed in Appeal Enterprises Ltd. v. First National Bank of Chicago (1984), 10 D.L.R. (4th) 317 (Ont. C.A.), at p. 319, “ the comity of nations upon which international legal assistance rests does not require precise reciprocity” between the laws of Canada and the laws of the requesting state: see also Perlmutter , at para. 63 . That said, differences in discovery between Canada and the U.S. highlight the need to be attentive to all of the elements in the LoR analysis including sovereignty and the justice of the request. [58] Finally, in the interest of comprehensiveness, I will briefly touch upon the issue of blocking statutes identified by the Sedona authors. The relevant statute in Ontario is the Business Records Protection Act , R.S.O. 1990, c. B.19. It is a very short statute concerning the sending and removal of certain business records out of the province. It consists of only two provisions. Section 1 states: No person shall, under or under the authority of or in a manner that would be consistent with compliance with any requirement, order, direction or summons of any legislative, administrative or judicial authority in any jurisdiction outside Ontario, take or cause to be taken, send or cause to be sent or remove or cause to be removed from a point in Ontario to a point outside Ontario, any account, balance sheet, profit and loss statement or inventory or any resume or digest thereof or any other record, statement, report, or material in any way relating to any business carried on in Ontario, unless such taking, sending or removal, (a) is consistent with and forms part of a regular practice of furnishing to a head office or parent company or organization outside Ontario material relating to a branch or subsidiary company or organization carrying on business in Ontario; (b) is done by or on behalf of a company or person as defined in the Securities Act , carrying on business in Ontario and as to a jurisdiction outside Ontario in which the securities of the company or person have been qualified for sale with the consent of the company or person; (c) is done by or on behalf of a company or person as defined in the Securities Act , carrying on business in Ontario as a dealer or salesperson as defined in the Securities Act , and as to a jurisdiction outside Ontario in which the company or person has been registered or is otherwise qualified to carry on business as a dealer or salesperson, as the case may be; or (d) is provided for by or under any law of Ontario or of the Parliament of Canada. [59] In De Havilland , in obiter , Doherty J.A. reasoned that an order enforcing an LoR did not fall within the parameters of s. 1 and in any event, s. 46 of the Canada Evidence Act triggered the exception set out in s. 1(d). This obiter was adopted by Lax J. and affirmed by this court in Local Court of Stuttgart of the Federal Republic of Germany v. Canadian Imperial Bank of Commerce (1997), 31 O.R. (3d) 684 (Gen. Div.), aff’d 1998 CarswellOnt 1999 (C.A.). [60] For the purposes of this appeal, I would add that it is of note that business records receive express legislative protection, no doubt in recognition of the sensitivity of the nature of such information and its vulnerability to misuse or misappropriation. [61] This then is the legal context within which the present appeal is to be decided. (2) Standard of Review [62] Given the discretionary nature of the decision to grant or refuse an application to enforce an LoR, absent reviewable error, this court will give deference to the lower court’s decision: Perlmutter , at para. 26; Presbyterian Church , at paras. 19, 30. As the Supreme Court noted in British Columbia (Minister of Forests) v. Okanagan Indian Band , 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 43, the definition and misapplication of the criteria for the exercise of a judicial discretion raise questions of law which are subject to appellate review. [63] The Supreme Court cases involving LoRs have not expressly addressed the standard for appellate intervention. Other cases involving discretionary decisions suggest that an appellate court will defer to a discretionary decision absent an error in principle, a misapprehension of or failure to take into account the evidence, or a clearly wrong or unreasonable result. See for example: Éditions Écosociété Inc. v. Banro Corp. , 2012 SCC 18, [2012] 1 S.C.R. 636, at para. 41; Cowper Smith v. Morgan , 2017 SCC 61, [2017] 2 S.C.R. 754, at para. 46; Bessette v. British Columbia (Attorney General) , 2019 SCC 31, 433 D.L.R. (4th) 631, at para. 35; Penner v. Niagara (Regional Police Services Board) , 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27; and Elsom v. Elsom , [1989] 1 S.C.R. 1367, at p. 1375. This would include the wrongful exercise of discretion arising from a failure to give any or insufficient weight to a relevant consideration: see Penner , at para. 27; Friends of the Oldman River Society v. Canada (Minister of Transport) , at pp. 76-77; and Harelkin v. University of Regina , [1979] 2 S.C.R. 561, at p. 588. [64] There are numerous examples of the application of the appropriate standard of review for the discretionary decision to enforce LoRs. In Presbyterian Church , at para. 30, the court held that the failure to “meaningfully address” the Friction Division factors constituted an error in principle. See also Liu v. Zhi , 2019 BCCA 427, at para. 22. In Lantheus , this court reversed a lower court decision in circumstances where the application judge set out the Friction Division factors but treated the factors as preconditions and misapplied them: at paras. 67-71, rev’g 2012 ONSC 3582, 25 C.P.C. (7th) 256. Further, appellate intervention may be warranted where the application judge fails to give sufficient consideration to sovereignty as a factor in the exercise of discretion. As the Supreme Court observed in Zingre , at p. 403, courts “must balance the possible infringement of Canadian sovereignty with the natural desire to assist the courts of justice of a foreign land.” (3) Analysis [65] Applying the principles I have discussed, I would allow the appeal. Following the parties’ submissions, the application judge identified the Friction Division factors but failed to keep in mind the principles underlying the enforcement of LoRs. Below, I discuss how considerations of relevance, public policy, and sovereignty lead me to conclude that the application judge fell into error and that appellate intervention is therefore warranted. (a) Relevance [66] As mentioned, Matvil submits that the application judge erred in her relevance analysis particularly given that the financial data that is the subject matter of the LoR merely serves to inform an expert about the business in which the parties to the U.S. action are engaged. Actava states that Matvil’s financial performance is relevant to Actava’s damages due to Matvil’s and Actava’s contractual relationship and common industry. [67] “Evidence is relevant if, as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely”: R. v. Truscott (2006), 216 O.A.C. 217 (C.A.), at para. 22; see also R. v. J.-L.J. , 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47; Girao v. Cunningham , 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 94. As a result, in assessing the relevance of evidence sought through an LoR, the issues in the underlying litigation should be examined: see Presbyterian Church , at para. 34. Pengelley’s observation, at p. 353, bears repeating: The evidence sought by letters rogatory should be directly relevant to issues raised in the foreign proceedings. Courts may be extremely reluctant to enforce letters rogatory that prove only that the evidence is “marginally relevant” [citing Pecarsky v. Lipton Wiseman Altbaum & Partners (1999), 38 C.P.C. (4th) 170 (Ont. S.C.)] or “potentially relevant,” [citing Fecht (C.A.), aff’g Fecht (Gen. Div.) ] and may narrow their orders accordingly. [Footnotes omitted.] [68] In considering whether to enforce an LoR from a U.S. court, the broader scope of discovery permitted in the U.S. compared to Canada may be a relevant consideration: Aker Biomarine AS et al. v. KGK Synergize Inc. , 2013 ONSC 4897, 47 C.P.C. (7th) 284, at para. 27; The Sedona Conference, at pp. 5-6. And, as we have seen, not only is the term “relevant” in the context of discovery interpreted more narrowly in Canada than in the U.S., discovery of non-parties is more limited: Aker Biomarine AS , at para. 27; The Sedona Conference, at pp. 5-6. The broader scope of discovery in the U.S. is not per se a bar to the enforcement of LoRs, but to give effect to the request, the Ontario court must be satisfied that the requirements of Ontario law are met: see Presbyterian Church , at para. 32. If the request seeks “evidence in terms so wide that they go well beyond” the issues in the litigation, the relevance requirement will not have been met: Presbyterian Church , at para. 35. [69] The parameters of relevance are determined by the U.S. pleadings. To recap, in the underlying U.S. action, Actava and the other respondents claim that the defendants — various owners, operators, and producers of TV channels that are broadcast in Russia and elsewhere, and Kartina, a licensed distributor of these channels — engaged in an unlawful campaign to interfere with Actava’s business by initiating frivolous contempt proceedings against it, which were ultimately dismissed but which resulted in losses to Actava’s business, including the termination of the referral agreement with Matvil. Actava and the Actava respondents seek financial information from Matvil not to establish that the Russian TV Channels and Kartina interfered with Actava’s business, but rather to assist its expert to calculate damages. [70] In my view, the application judge erred in her relevance analysis for several reasons. [71] First, even though it is the case that Actava and Matvil had a short-term referral agreement, the documents requested have nothing to do with the referral agreement. Actava has all the documents, including all financial documents, in Matvil’s possession that concern that relationship. These documents have already been produced and were not the subject matter of the issues before the application judge. Actava does not suggest otherwise. [72] Second, the scope of the request in the LoR is extraordinarily broad. Actava seeks production of yearly reports, from 2015 to present, of Matvil’s revenues and profits as well as all documents, from 2015 to present, containing or constituting an appraisal of Matvil’s valuation. Notably, the request encompasses all of Matvil’s global business, not simply the small part that relates to Actava or the business lines in which Actava operates. Moreover, it extends to the work product of Matvil personnel and external service providers on the company’s valuation. It is difficult to see how financial statements and valuation reports, prepared by Matvil for its own internal purposes and involving parts of its business unrelated to Actava, could possibly be relevant to the U.S. action. The application judge did not address the relevance of the requested information as it related to the breadth of the request. [73] Third, the relevance of the requested evidence is entirely speculative. In oral argument, counsel confirmed that Actava has no knowledge of what the evidence will reveal. There is no evidence that Matvil’s revenues, profits, and value increased during the time period requested, and it is hard to imagine that evidence showing a decrease would be advanced in support of Actava’s claim for substantial damages. Evidence anchored in speculation is incompatible with a characterization of relevance. [74] Fourth, the purpose of the production request also undercuts the request. The existence of damages and the calculation of those damages are separate matters. Actava does not seek production of the evidence to establish that it suffered damages. Nor does it plead that its damages are linked to Matvil’s financial performance, profitability or valuation. The production is sought for the sole purpose of potentially assisting the damages expert with his preferred methodology so as to quantify the extent of any loss. [75] Relevance is not simply a matter of determining whether there is any possibility that the financial information sought from Matvil will assist Actava in calculating its damages. As Matvil’s valuation expert, Andrew Freedman, explained, it is important to distinguish between “want” and “need”, and that in essentially any loss quantification and business valuation engagement, the incumbent financial expert will “want” to obtain data on the financial performance of comparable businesses and/or industry information. Often, such comparable industry data is not publicly available. This does not render it “relevant” for the purposes of obtaining its production from a disinterested non-party such as Matvil. Although the financial performance of unrelated comparable companies may be useful to an expert, this does not mean that the documentation is both relevant to the issues in dispute in the U.S. action and producible. If it were otherwise, an argument could be made that proprietary financial performance and valuation evidence be produced by an innocent corporate bystander in every case involving a claim for loss of profits by a player in a comparable industry. This is not, and ought not to be, the law. [76] In sum, the application judge was not alive to the issues of breadth and purpose, the absence of any true linkage between the referral agreement and the productions sought, the relevance to the material issues in the U.S. pleadings, and the speculative nature of the request. The application judge erred in her determination of relevance. The failure to meaningfully address the relevance of the evidence sought constitutes an error in principle warranting appellate intervention. (b) Public Policy [77] Matvil also argues that the application judge erred in not finding that public policy precluded enforcement of the LoR. Actava and the other Actava respondents reject the argument that public policy prohibited production of Matvil’s financial information. [78] The court will decline to enforce an LoR if enforcement is contrary to public policy: Perlmutter , at para. 25; Treat America Limited v. Nestlé Canada Inc. , 2011 ONCA 560, 282 O.A.C. 311, at para. 12. There is no defined list of the various public policy considerations that may lead a court to refuse to enforce an LoR. That said, the focus is on whether granting the request, not the underlying foreign proceeding, contravenes Canadian public policy: Presbyterian Church , at para. 23. [79] As recognized by this court in Glegg , public policy considerations include interference with solicitor-client privilege and confidentiality concerns. See also De Havilland on business confidentiality concerns, [9] Westinghouse Electric Corp. v. Duquesne Light Co. (1977), 16 O.R. (2d) 273 (H.C.) on Crown privilege, and Optimight Communications Inc. v. Innovance Inc. (2002), 155 O.A.C. 202 (C.A.), on trade secrets. [10] [80] Accordingly, confidentiality concerns may be considered as part of the public policy analysis. [81] As a starting proposition it is contrary to public policy in the circumstances of this case to require Matvil to disclose the information sought given its sensitive nature. Matvil is a privately-held corporation. According to the affidavit filed by Matvil’s Chief Executive Officer in opposition to the application to enforce the LoR, the financial documents and records Actava seeks are highly sensitive. They include information about the value of the company, its profitability, and the licensing fees paid for content with different licensors, information that Matvil has not ever knowingly or voluntarily made public. [82] It is important to stress the nature of the information sought from Matvil. Financial performance and valuation evidence strike at the heart of a corporation. Nothing could be more confidential and open to abusive use. [83] Although there is a protective order in the U.S. action, it falls short of effectively protecting Matvil’s financial information. As mentioned, the order, which was issued prior to and independently of the LoR, allows Matvil to mark the confidential documents or information it produces so that it is accessible only to the lawyers and experts in the U.S. action. In addition, Actava agreed to additional conditions to limit the sharing of Matvil’s financial information, including that: (i) Actava’s general counsel not receive or review it; (ii) it not be provided to Actava, Kartina, or any of the other defendants in the action, except for their experts and external legal counsel, and (iii) it be treated as for attorneys’ and experts’ eyes only throughout the entirety of the action. The application judge granted Actava’s application to enforce the LoR subject to the U.S. court making an order incorporating these additional conditions, which it now has. [84] Nevertheless, notwithstanding the expanded protections, the protective order and additional conditions do not really address the confidentiality concerns that arise in this case. First, while Matvil may mark materials as confidential, its designation is not necessarily controlling, as the protective order provides a mechanism for parties in the U.S. action to challenge a producing party’s confidentiality designation. Of course, Matvil is not a party and at best would have to attend in the U.S. and attorn to the jurisdiction of the U.S. court to even attempt to seek relief. [85] Second, because Actava seeks to use Matvil’s financial information as part of a single-source comparator analysis, redacting or anonymizing the information in public filings or court proceedings will not protect Matvil’s sensitive business information. The application judge stated that this risk was speculative and overstated. However, anyone viewing the filings or proceedings and the expert’s opinion will readily identify Matvil as the source of the information. The fact that Kartina already knows that Matvil is the comparator does not alleviate this concern as suggested by the application judge; on the contrary, it exacerbates it. [86] Third, the protective and additional orders do not relieve Matvil from the prospect of overly broad, irrelevant, and unduly burdensome production. See Optimight , at para. 31. [87] Lastly, although not determinative, such production by a non-party would be unparalleled in Ontario. Actava cites no case in which LoRs have been enforced requiring a non-party to disclose confidential and proprietary information for the sole purpose of assisting a party to calculate damages. Indeed, even with the broader discovery rules in the U.S., counsel for Actava was unable to refer this court to any U.S. authority to that effect either. [88] It must also be recalled that, at a minimum, Kartina is a competitor of Matvil. The risks associated with any such order for Matvil, a non-party to the U.S. litigation, far outweigh any hypothetical benefit to Actava. In my view, this incursion into Matvil’s confidential proprietary financial performance and valuation information is clearly wrong and contrary to public policy. (c) Sovereignty [89] This brings me to the issue of sovereignty. As the Supreme Court observed in Pro Swing , at para. 27, “[c]omity is a balancing exercise”. As explained, comity requires the court to engage in an analysis that takes into account the impact of the proposed order on Canadian sovereignty and whether justice requires that the LoR be enforced and the evidence requested be produced: Zingre , at p. 403; Connecticut Retirement Plans , at para. 7; and Lantheus , at para. 59. [90] Here, with respect, the application judge did not engage in any real balancing exercise and gave no consideration to Canadian sovereignty or whether justice required that the LoR be enforced and the evidence requested be produced. Indeed, the application judge’s reasons do not mention sovereignty or justice at all, and they fail to focus on the prejudice to Matvil — apart from, without any true explanation, summarily dismissing its concerns as overstated and speculative. In fairness, although sovereignty and the justice of the request permeate the case law relied upon by the parties, they were not the dominant focus of the parties’ submissions. However, LoRs are not simply an enabling mechanism for the requesting party; there must be some balancing and consideration of whether the order is “prejudicial to the sovereignty or the citizens” of the receiving state: Zingre , at p. 401. [91] As we have seen from De Havilland and Lantheus , the phrase “Canadian sovereignty” encompasses: whether the LoR gives extra-territorial authority to foreign laws that violate Canadian or provincial laws; whether granting the request would infringe on recognized Canadian moral or legal principles; whether the order would impose an undue burden on the individual whose evidence is requested; and whether the order would do prejudice to that individual . [92] Although the Business Records Protection Act , a blocking statute, highlights the importance of confidential financial records to corporations in Ontario, based on the De Havilland and Canadian Imperial Bank of Commerce decisions, enforcing the LoR in this case does not expressly violate a Canadian or provincial law. Rule 30.10 of the Rules of Civil Procedure , which addresses the need for an order for the production of documents from non-parties in proceedings in Ontario, also does not contain an outright prohibition. [93] However, r. 30.10 can provide guidance on whether the other examples, identified in De Havilland and Lantheus as being encompassed by the term “Canadian sovereignty”, have been met. [11] Indeed, it is reasonable to consider r. 30.10 in addressing the impact of the requested order on Canadian sovereignty: Pecarsky , at para. 21, citing Fecht (C.A.) , at p. 420. The application of the rule is not determinative but provides assistance in the assessment of whether the requested order is prejudicial to Canadian sovereignty. [94] As noted, r. 30.10 provides that an order of the court is required for an order for production from a non-party. The moving party must establish that the documents requested are relevant to a material issue in the action and that it would be unfair to require the moving party to proceed to trial without having discovery of them. [95] In Morse Shoe (Canada) Ltd. v. Zellers Inc. (1997), 100 O.A.C. 116 (C.A.), at para. 19, this court stated that orders under r. 30.10 should not be made as a matter of course but only in exceptional cases. And in Ontario (Attorney General) v. Ballard Estate (1995), 129 D.L.R. (4th) 52 (Ont. C.A.), at p. 56, this court affirmed that “[s]ave in the circumstances specifically addressed by the rules, non-parties are immune from the potentially intrusive, costly and time-consuming process of discovery and production.” As the court observed, “[b]y its terms, rule 30.10 assumes that requiring a party to go to trial without the forced production of relevant documents in the hands of non-parties is not per se unfair”: Ballard Estate , at p. 56. [96] In Castel & Walker: Canadian Conflict of Laws , loose-leaf (2020-Rel. 4), 6th ed. (Markham, Ont.: LexisNexis Canada, 2004), Professor Walker writes, at para. 6.2(c): “Particularly in the case of non-parties, the court will be guided by the principle of proportionality, and will be disinclined to permit an order that does not reflect the local standards for examining non-parties” (footnote omitted). See also Optimight , at paras. 28-31. [97] In this case, I have no hesitation in concluding that had a comparable request for production been made in a proceeding in Ontario under r. 30.10, the order would not have been granted. As mentioned, the LoR is extraordinarily broad, capturing, among other things, the yearly reports of Matvil’s revenues and profits and all documents on Matvil’s valuation since 2015. [98] The application judge did not properly distinguish between evidence relevant to the issues in dispute, which Actava already possesses, and evidence for quantification of damages using a comparative indicator. The request is speculative in nature and the risks associated with Matvil being the obvious single-source comparator are significant. Although the application judge offered recourse to the U.S. court as a mechanism available to Matvil to protect its interests, that would involve Matvil, a non-party against whom no allegations of wrongdoing are asserted, having to attorn to the jurisdiction of a foreign court in a foreign land. The application judge failed to recognize Matvil’s sovereignty interest and neglected to consider the justice of the case. She was not alive to the breadth and purpose of the request, its speculative nature, and the absence of linkage between the referral agreement and the productions sought. Sanctioning an order of this nature constitutes a reviewable error. (d) Other [99] In light of my proposed disposition, there is no need to address the two procedural and evidentiary arguments raised in Matvil’s factum, neither of which was pressed in oral submissions. Disposition [100] For these reasons, I would allow the appeal. [101] As agreed by the parties, Actava and the other Actava respondents shall pay Matvil its costs of the appeal and the stay motion, fixed in the amounts of $15,000 and $10,000 respectively, each inclusive of disbursements and applicable tax, and the costs below of $90,000 in favour of the respondents are reversed and made in favour of the appellant. Released: February 19, 2021 (“J.M.F.”) “S.E. Pepall J.A.” “I agree. Fairburn A.C.J.O.” “I agree. L.B. Roberts J.A.” [1] This was confirmed in oral argument. [2] In contrast, Matvil’s expert opines that both the “sales projection” and the “before-and-after” methodologies could be used to calculate Actava’s damages and that neither methodology requires Matvil’s documents to do so. [3] The issue in dispute is production of documents although the LoR also requested that a representative from Matvil attend a deposition. [4] At para. 57 of her reasons, the application judge stated that Actava had already received the data from Matvil in the course of their previous business relationship. However, counsel for Actava candidly advised the panel on appeal that this was a misstatement. It may be that the application judge was confusing the documentation relating to Matvil’s and Actava’s short-term relationship that had been produced with Matvil’s financial and valuation data that was unrelated to Actava and that was in dispute. [5] The court split on whether the judgment in the case ought to be enforced, with Deschamps J. writing for the majority holding that it ought not to and McLachlin C.J. writing to the contrary. [6] Deschamps J. was referring to equitable orders. Presumably, her comment would apply to an order made against a non-party. [7] I will discuss in more detail later in these reasons the factors of relevance and public policy. [8] Rule 31.10 of the Rules of Civil Procedure was enacted in 1985 to permit such an examination. [9] Although the court in De Havilland could not conclude that legitimate confidentiality concerns would be compromised by the request in issue in the LoR in that case, it did not conclude that it was an error to consider them as part of the public policy analysis. [10] Although public policy was not explicitly referred to, the court in Optimight recognized that a non-party had a privacy interest in its trade secrets. [11] These examples are whether granting the request would infringe on recognized Canadian moral or legal principles, and whether the request would impose an undue burden on, or do prejudice to, the individual whose evidence is requested.

COURT OF APPEAL FOR ONTARIO CITATION: Albert Bloom Limited v. London Transit Commission, 2021 ONCA 74 DATE: 20210204 DOCKET: C68272 Lauwers, Hourigan and Brown JJ.A. BETWEEN Albert Bloom Limited Plaintiff (Respondent) and London Transit Commission , 1571177 Ontario Limited, 1111846 Ontario Limited, Ramsden Industries Limited, Eaton Industries (Canada) Company and The Corporation of the City of London Defendants ( Appellant / Respondent ) Rosalind H. Cooper and Daniel Richer, for the appellant Robert Frank and Ted Brook, for the respondent Heard: January 22, 2021, by video conference On appeal from the order of Justice Alissa K. Mitchell of the Superior Court of Justice, dated March 6, 2020, with reasons reported at 2020 ONSC 1413. Hourigan J.A. I. Introduction [1] The motion judge struck London Transit Commission’s (“LTC”) third party claim against Eaton Industries (Canada) Company (“Eaton”) on the basis that it is statute-barred pursuant to the Limitations Act , 2002, S.O. 2002, c. 24, Sched. B. LTC appeals that order. Its principal arguments are that the motion judge erred in her findings regarding when it had actual knowledge of the claim and when it should have had knowledge of the claim. [2] I would not give effect to the grounds of appeal advanced by LTC. In comprehensive reasons, the motion judge explained her findings regarding when LTC knew or should have known about a claim against Eaton for contribution and indemnity and other related claims. With one inconsequential exception, I concur with those reasons. Accordingly, I would dismiss the appeal. II. Facts [3] The properties owned by the plaintiff, Albert Bloom Limited (“Albert Bloom”), LTC and Ramsden Industries Limited and its affiliated companies (“Ramsden”), are located in a semi-industrial/semi-residential area in London, Ontario. The LTC property is situated to the east of Albert Bloom’s property, and the Ramsden properties are located to the southwest of Albert Bloom’s property. The groundwater flow across this area is generally in a westerly direction, from the LTC property toward the Albert Bloom and Ramsden properties. [4] The LTC property consists of three lots, being 17, 18 and 19 of Registered Plan 50. In 1949, the City of London conveyed lots 17 and 18 to Eaton’s corporate predecessor. While Eaton changed its name a number of times over the years, I will refer to all relevant corporate predecessors simply as Eaton. During the period 1949 to 1973, Eaton carried on the business of manufacturing automotive parts. In 1973, Eaton transferred lots 17 and 18 to the City of London. That same year, the City of London transferred title to LTC, and it has operated a transit system since that time. [5] In March 2011, Albert Bloom notified Ramsden about the existence of Trichloroethylene (“TCE”) contamination on its property and provided Ramsden with two environmental reports from its environmental consultant.  Ramsden investigated its properties and received a Phase II ESA Report from its environmental consultant identifying TCE contamination in concentrations above applicable standards. The report concluded that the LTC property was a potential source of the TCE contamination due in part to the westerly groundwater flow and historical automotive parts manufacturing operations carried out on the LTC property by Eaton. [6] After receiving Ramsden’s Phase II ESA Report, Albert Bloom undertook further investigations. In November 2011, Albert Bloom’s environmental consultant issued a letter reporting that it had reviewed the data and agreed with Ramsden’s Phase II ESA Report that the LTC property was a potential source of the alleged contamination. [7] On February 3, 2012, the lawyer for Albert Bloom advised LTC that it had discovered environmental contamination potentially migrating from LTC’s property to its client’s property. Albert Bloom provided the LTC with five environmental reports produced by two environmental consultants. Three of those reports identified Eaton, along with other potential sources, as being possibly responsible for the contamination. [8] On April 30, 2013, Albert Bloom’s lawyer delivered a notice of action and statement of claim to LTC and provided the LTC with an additional environmental report from a third environmental consultant to support its claim. The statement of claim was formally served on LTC on May 22, 2013. [9] On December 19, 2013, Albert Bloom provided LTC with an environmental report from a fourth environmental consultant supporting the claim against LTC. [10] From 2012 to 2014, Albert Bloom repeatedly asked LTC to investigate its property. LTC refused to do so or to permit Albert Bloom to investigate. [11] In January 2014, LTC filed its statement of defence and crossclaim.  In that document, LTC denied responsibility for the alleged contamination and claimed over against its co-defendants.  It further pleaded, in the alternative, that: ...if the [LTC property] in any way contributed to the alleged contamination of the [Albert Bloom property], which is not admitted but specifically denied, then it was caused by the prior owner of the [LTC property], the details of which LTC had no involvement in and has no knowledge of. [12] Albert Bloom gave LTC an ultimatum in January 2014 to investigate its property, or it would contact the Ministry of the Environment and Climate Change (the “MOE”) regarding the alleged contamination. LTC maintained its refusal to investigate, refusing even to commission a non-intrusive Phase I ESA Report. Albert Bloom’s lawyer then contacted the MOE. It launched an investigation in the summer of 2014 and requested that LTC prepare a Phase I ESA Report concerning its property. The MOE also requested that LTC grant Albert Bloom access to its property to install monitoring wells to investigate the alleged contamination. [13] Between December 2014 and March 2015, in response to MOE requests, LTC undertook testing on its property and determined that Eaton had operated a sludge pit on the property before 1973. [14] On March 16, 2016, LTC commenced a third party claim against Eaton for damages and contribution and indemnity, alleging that Eaton had contaminated the LTC property between 1949 and 1973. Eaton moved for summary judgment, asserting that LTC's claim was statute-barred by operation of the Limitations Act . [15] The motion judge granted summary judgment and dismissed LTC’s third party claim against Eaton. She concluded that LTC had actual knowledge of the matters in s. 5(1)(a) of the Limitations Act with respect to the claims against Eaton by no later than May 22, 2013. [16] Despite finding that LTC had actual knowledge, the motion judge also considered the parties’ argument about when LTC ought to have known of the matters relating to its claim against Eaton. She concluded that LTC also ought to have known that it had a claim by May 22, 2013. [17] According to the motion judge, the fact that LTC had asserted claims in nuisance and negligence against Eaton did not create separate causes of action with different limitation periods.  She reasoned that LTC's claims all arose from the same alleged tortious conduct by Eaton before 1973. III. Analysis [18] On appeal, LTC principally relies on Crombie Property Holdings Limited v. McColl-Frontenac Inc. , 2017 ONCA 16, 406 D.L.R. (4th) 252, leave to appeal refused, [2017] S.C.C.A. No. 85, to argue that actual knowledge of the possibility of a claim does not equate to actual knowledge of a claim. LTC’s position is that its suspicion of a claim against Eaton was only confirmed by subsurface testing in March 2015. [19] With respect to constructive knowledge, LTC argues that it acted diligently to retain an environmental consultant and legal counsel. It submits that it relied on its consultant’s opinion that the contamination was not spreading from the LTC property until later testing revealed this was an error. Further, it claims that its reference to a “prior owner” in its statement of defence and counterclaim was boilerplate language not denoting knowledge. [20] LTC also submits that the motion judge erred in her analysis of the claims other than for contribution and indemnity. It argues that these additional claims are either continuing claims for which the limitation period has not expired or their limitation periods commenced on different dates than the claim for contribution and indemnity. [21] This section of the reasons will briefly review the law regarding limitation periods in the context of claims for contribution and indemnity, then address the issues of actual and constructive knowledge, followed by a consideration of the other grounds of appeal. (a) Claims for Contribution and Indemnity [22] Claims for contribution and indemnity are governed by s. 18 of the Limitations Act , which provides: 18 (1) For the purposes of subsection 5 (2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim is based took place. (2) Subsection (1) applies whether the right to contribution and indemnity arises in respect of a tort or otherwise. [23] An absolute two-year limitation period running from the date on which the first alleged wrongdoer was served with the claim is not established by s. 18. Instead, as described by Paciocco J.A. in Mega International Commercial Bank (Canada) v. Yung , 2018 ONCA 429, 141 O.R. (3d) 81, at para. 74, s. 18 operates as follows: The two-year limitation period prescribed by ss. 4, 5(2), and 18 for contribution and indemnity claims presumptively begins on the date of service of a claim in respect of which contribution and indemnity is sought. That presumptive limitation period start date, however, can be rebutted by the discoverability principles prescribed in s. 5 of the Limitations Act, 2002. [24] It is worth reiterating that once the second anniversary of the service of the claim passes, the onus shifts to the party seeking contribution and indemnity to establish why its claim was not discoverable. In the case at bar, as will be discussed, it appears, based on some of the arguments being advanced on the appeal, there was some confusion regarding who has the onus. (b) Actual Knowledge [25] The motion judge undertook an examination of the matters in s. 5(1)(a) of the Limitations Act . She found that LTC first knew that the injury or loss occurred and was caused or contributed by an act or omission on April 30, 2013, when it was provided with the issued notice of action and the statement of claim. According to the motion judge, the day on which LTC first knew that Eaton caused the loss or damage was February 3, 2012, when it was provided with environmental reports identifying the automotive manufacturing operations carried on by Eaton as a possible source of contamination. Further, she held that LTC learned that a proceeding against Eaton would be appropriate on May 22, 2013, when Albert Bloom’s statement of claim was formally served in the main action. [26] LTC argues that the motion judge erred in her application of s. 5(1)(a) by distinguishing Crombie on a factual basis and equating knowledge that its property was a potential source of contamination with the knowledge that it was the source of the contamination. I would not give effect to these submissions. [27] LTC’s argument on this issue is internally inconsistent. On the one hand, it submits that determining the date of actual knowledge of the matters in s. 5(1)(a) is a fact-specific exercise. On the other hand, it says that Crombie establishes a general rule that actual knowledge of contamination does not arise in environmental claims until subsurface testing has been carried out. I accept that the former submission is correct. The latter submission about a general rule being established is erroneous. It is necessary to review the facts of Crombie to understand why I reach this conclusion. [28] The facts of Crombie are readily distinguishable from the case at bar. There the claim arose from the purchase by the plaintiff of a contaminated property. The acquisition was one of 22 properties acquired as part of a single commercial transaction. Regarding the property at issue, the most recent environmental information the plaintiff had at the time of the purchase was contained in a Phase I report ( i.e. , a non-invasive report) from an environmental consultant. The consultant completed a Phase I report for each of the 22 properties. In the report concerning the property in issue, the consultant reviewed historical environmental reports which had done soil and groundwater sampling. One of these reports concluded that the potential contamination was not “a significant environmental concern, and that no further environmental assessment was warranted.” Nevertheless, the consultant recommended a Phase II report to further evaluate soil and groundwater conditions. The plaintiff complied and pursued further testing. It commenced its action within two years of receiving the draft Phase II report that contained test results that showed that petroleum hydrocarbons in certain soil and groundwater samples exceeded MOE site condition standards. [29] It was in this context that the court in Crombie stated, at para. 42, that “[t]he subsurface testing, while confirmatory of the appellant’s suspicions, was the mechanism by which the appellant acquired actual knowledge of the contamination.” LTC's submission that the court was establishing a single standard about when the limitation clock starts in environmental contamination claims is incorrect. The court did not purport to create such a general rule. [30] A comparison of the facts of the case at bar to the facts of Crombie demonstrates why it is folly to try to establish a general rule as suggested by LTC. In this case, as of May 22, 2013, LTC had six off-site environmental reports from three different consultants. Those reports all identified LTC’s property as a potential source of contamination, and the manufacturing operations of Eaton’s predecessors were specifically referenced in four of these reports as an environmental concern. It was also known that the groundwater flowed in a westerly direction. Further, LTC was aware that Eaton operated an auto parts manufacturing facility on the site, and at the time of that operation, TCE was commonly used in the industry. Substratum testing was not necessary in these circumstances to establish actual knowledge of contamination. [31] To be clear, the determination of when a claimant obtains actual knowledge of a claim is case-specific. Little is to be gained from comparing the unique circumstances of one case to another. There is no bright-line test that establishes when a party has actual knowledge of a claim. Instead, the totality of factual circumstances will dictate how and when a claimant obtains actual knowledge. In the present case, the motion judge undertook a detailed analysis of the factual circumstances. The evidence she relied on was uncontested, and I do not understand LTC to be arguing that the motion judge committed any palpable and overriding errors of fact. [32] There is another unique circumstance in this case that supports the motion judge’s finding regarding actual knowledge. It is the plea in the statement of defence and crossclaim that the contamination was caused by a previous owner of the LTC property. That fact clearly distinguishes this case from Crombie , where there was no such plea. [33] On the motion and this appeal, LTC attempts to explain away that pleading: it was just a “standard pleading” and did not reflect its actual state of knowledge at the time of the filing of the statement of defence and crossclaim. However, the evidence that counsel had informed the affiant in the affidavit filed by LTC that this was a standard pleading was double hearsay. Contrary to what the affiant stated in her affidavit, on cross-examination, she testified that she had never been provided with this information by LTC’s counsel. In fact, she had received the information from her predecessor at LTC, who apparently was told the information by legal counsel. This evidence was therefore inadmissible on the motion. [34] LTC asserts, “[t]here was absolutely no evidence on the record before the Motions Judge to suggest that this pleading was other than a boilerplate pleading commonly set out in environmental defences without any factual knowledge attributable to LTC” : Factum, para. 27.  This submission reflects a fundamental misunderstanding of the onus on the motion. LTC’s onus was not met by asserting that there was no evidence that this was not a boilerplate pleading. LTC had an obligation to adduce compelling and admissible evidence that it was boilerplate and thus could be ignored. It failed to adduce that evidence. [35] On this record, I see no error in the motion judge’s conclusion regarding when LTC acquired actual knowledge of its claim. (c) Constructive Knowledge [36] The motion judge also found that LTC ought to have known that it had a claim against Eaton by May 22, 2013. This finding was based on a number of facts. First, LTC was in possession by February 2012 of environmental reports that identified its property as a potential source of contamination, some of which also indicated that Eaton operations were associated with TCE. Second, Eaton’s environmental consultant opined that the reports, taken together, contained sufficient information to identify the LTC property as a likely source of contamination. Third, LTC’s co-defendant, Ramsden, conducted a more diligent investigation immediately upon receipt of environmental reports from the plaintiff in 2011. Fourth, within months of launching its own investigation, LTC obtained results consistent with the results of the plaintiff’s and Ramsden’s consultants obtained years earlier. Fifth, LTC had information available to it as to the nature of the operations undertaken by its predecessors in title on the LTC property. [37] Based on all of the above, the motion judge found that LTC did not act with the due diligence of the reasonable person with its abilities in this case’s circumstances. She emphasized that, unlike Ramsden, LTC refused to investigate the alleged contamination until it was directed to do so by the MOE in October 2014. The motion judge found that LTC was willfully blind and failed to take reasonable steps to investigate the available facts. LTC’s contention that it acted reasonably in not investigating because it was following its environmental consultant’s advice was rejected.  Further, the motion judge observed that LTC knew their environmental consultant had done nothing more than review the reports provided and did not conduct an independent investigation. [38] LTC does not dispute that it had a due diligence obligation to investigate its claim against Eaton in the circumstances of this case. This was a sensible concession, because it is well established in this court’s jurisprudence that when the due diligence obligation has been triggered, the party with the obligation (LTC) has a duty to investigate and the limitation period will not be tolled while it sits idle: Longo v. MacLaren Art Centre , 2014 ONCA 526, 323 O.A.C. 246, at para. 42. [39] The onus was on LTC to adduce admissible evidence that it took the necessary due diligence steps in the circumstances. It failed to do so. On the motion and this appeal, LTC asserts that it relied on the advice given by its environmental consultant. The motion judge found that the evidence regarding the advice constituted inadmissible hearsay and refused to give it any weight. There is nothing in LTC’s factum on the appeal that challenges that ruling. It is unclear what LTC expects this court to do about the motion judge’s rejection of this evidence. In any event, I see no error in the motion judge’s analysis on the point.  Thus, in this court, as in the court below, there is no admissible evidence regarding the advice given to LTC by its environmental consultant. [40] In her oral submissions, counsel for LTC submitted that regardless of the content of the advice received, the due diligence obligation was fully met by retaining counsel and environmental consultants. I do not accept that submission. The due diligence obligation imposes a heavier burden than simply hiring professional advisors. The proof of due diligence requires more detailed information than a simple assertion. The particulars of the information and advice provided to and by the consultant must be adduced to enable a court to assess whether the actions were reasonable in the circumstances. If the law were otherwise, a putative claimant could, for example, insulate itself from the operation of a limitation period by simply hiring a lawyer and then asserting solicitor-client privilege. [41] LTC is also critical of the motion judge’s reliance on Ramsden’s activities in considering whether LTC acted reasonably. It argues that she erred in relying on Ramsden’s conduct because there is no evidence before the court about what motivated its decision to undertake testing. I disagree. The record established that Ramsden tested its property after it was contacted by Albert Bloom’s lawyer and that it shared the test results with Albert Bloom. It was a reasonable inference that Ramsden did the testing because of the information it received from Albert Bloom. If there was some other reason motivating Ramsden’s testing activities, LTC had the onus of putting that evidence before the court. LTC did not do so, and it is not open to it to rely on this alleged lacuna in the evidence. [42] I note as well that LTC also cannot rely on the analysis in Crombie regarding constructive knowledge. In that case, this court found that in reaching her conclusion that the claim was discoverable, the motion judge ignored the plaintiff's particular circumstances, including its waiver of conditions in the commercial deal and the fact that the property sale in issue was part of a multi-property transaction. There is no basis in the case at bar to suggest that the motion judge ignored any relevant circumstances. [43] In summary, the motion judge’s analysis on the issue of constructive knowledge is correct. LTC has failed to meet its onus of rebutting the s. 18 presumption. (d) Ultimate Limitation Period [44] In distinguishing Crombie at para. 65 of her reasons, the motion judge observed that any claim other than a claim by LTC against Eaton for contribution and indemnity was statute-barred by operation of the absolute limitation period of 15 years in the Limitations Act . As Eaton concedes, that was an error on the part of the motion judge.  Section 17 of the Limitations Act provides that there is no limitation period for undiscovered environmental claims.  LTC does not explicitly identify how this error detracts from the motion judge’s analysis. In my view, it is inconsequential. (e) Section 99 of the Environmental Protection Act [45] During the course of her oral argument, counsel for LTC stated that it has a claim against Eaton pursuant to s. 99 of the Environmental Protection Act , R.S.O. 1990, c. E.19 (“EPA”).  LTC submitted that the limitation period for this s. 99 claim had not expired when it commenced its third party claim. [46] This argument was not raised before the motion judge and is found nowhere in LTC’s factum filed on this appeal. The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party on appeal when evidence might have been led in the court below had it been known that the matter would be an issue on appeal. The burden is on the appellant advancing a new argument to persuade the court that the new issue should be heard. Ultimately, the decision of whether to grant leave to allow a new argument is a discretionary decision guided by balancing the interests of justice as they affect all parties: Kaiman v. Graham , 2009 ONCA 77, 245 O.A.C. 130, at para. 18; Vellenga v. Boersma , 2020 ONCA 537, 152 O.R. (3d) 305, at paras. 42-43. [47] I do not believe that it is in the interests of justice to consider this new argument on this appeal. This court is primarily an error-correcting court. Absent compelling reasons, it will not consider new arguments raised for the first time on appeal.  No compelling reasons are evident in this case. Further, entertaining this argument would unfairly deprive Eaton of the opportunity to respond in the court below and in its written arguments before this court. [48] In any event, I am not satisfied that LTC asserted a claim under s.99 of the EPA. If LTC really intended to make an s. 99 claim, then it would have set the claim out in detail in its third party pleading. Counsel for LTC, who did not draft the third party claim, points to the general plea relying on the EPA. She admits that there is no plea regarding s. 99 specifically, but submits that the general reference to the statue can only be interpreted as being an s. 99 claim. This argument does not persuade me. The purpose of pleadings is to define issues and put all parties on notice regarding the precise subject matter of a proceeding. The oblique reference to the EPA does not fulfill the purpose of asserting an s. 99 claim. Further, there is nothing in LTC's factum on the appeal that suggests that it has an s. 99 claim. (f) Continuing Tort [49] LTC also argues that the motion judge erred when she concluded that the third party claim against Eaton was not founded on a continuing tort. It submits that “LTC’s Third Party Claim, like the Main Action, is based on a continuing cause of action and a new cause of action arises each day that there is a continuing tort (i.e. ongoing migration of contamination).” In other words, because the main action purportedly alleges that LTC’s property continues to damage its neighbour’s property through ongoing contaminant migration, Eaton is engaged in a continuous tort against LTC. [50] This position mischaracterizes the nature of LTC’s claim against Eaton. LTC’s claim against Eaton is that of a current property owner against a former property owner. Even if LTC’s property continued releasing contaminants onto its neighbour’s property, such that LTC was committing a continuous tort relative to its neighbours, that would not establish that Eaton has engaged in a continuous tort relative to LTC. As Epstein J., as she then was,  explained in Starline Entertainment Centre Inc. v. Ciccarelli , (1995) 25 O.R. (3d) 765 (S.C), at p. 31, “a continuing tort does not include continuance of all the effects or repercussions of the defendant’s conduct. It has been explained as ‘the continuance of the act which caused the damage.’” For a claim to be “continuing”, the legal injury itself must continue, not merely the ill effect of the prior legal injury: RVB Managements Ltd. v. Rocky Mountain House (Town) , 2015 ABCA 188, 19 Alta. L.R. (6th) 195, at para. 18. [51] In LTC’s third party claim, the legal injury or act that allegedly caused the damage to LTC was Eaton’s manufacturing activities and improper waste management practices, which ended in 1973. In the main claim against LTC, the legal injury or act that allegedly damaged the plaintiff was LTC allowing contaminants on its property to spread and damage neighbouring properties. The fact that the latter action may amount to a continuing tort does not transform LTC’s claim against Eaton into a continuous tort. [52] The primary case relied on by the respondent, Roberts v. City of Portage la Prairie , [1971] S.C.R. 481, is distinguishable and supports this conclusion. In that case, the city constructed and continued to operate a sewage lagoon, which proved to be a nuisance. No similar continued operation of a tortious activity is alleged against Eaton. (g) Standalone Claims [53] LTC submits that the motion judge erred in rejecting its submission that it had so-called standalone claims that were not statute-barred. [54] LTC offers two reasons why these standalone claims are not statute-barred. First, it submits that one of its claims was more recently discovered. Second, it asserts it has a continuous tort claim against Eaton as its former neighbour on lot 19. [55] The recently discovered claim is for reimbursement of expenses related to investigative work required by the MOE for other properties in the area. LTC argues that it could not have known about this claim until March 27, 2015, when it was requested to do the work by the MOE. Therefore, it submits that the limitation period for the claim for these expenses could not begin to run until that date. [56] The problem with this submission is that it conflates the concept of “damage,” being the loss required to make out certain causes of action, with the concept of “damages,” which is the monetary measure of the extent of the loss: Hamilton (City) v. Metcalfe & Mansfield Capital Corporation , 2012 ONCA 156, 290 O.A.C. 42, at para. 54.  All LTC had to discover to start the limitation period was damage caused by Eaton’s manufacturing operations and waste management practices. As the Supreme Court held in Peixeiro v. Haberman , [1997] 3 S.C.R. 549, at para. 18, the accrual of a cause of action does not await a full understanding of the extent or type of damage. See also Hamilton, at para. 61 and Brozmanova v. Tarshis , 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at para. 35. [57] Further, regarding the claim for investigative costs, I note that in its statement of defence and crossclaim, LTC expressly pleads a claim for damages related to “expenses relating to the investigation, testing, monitoring and remediation of the contamination.” Clearly, as of January 2014, LTC knew it had a claim for expenses relating to investigative work, although it did not know the exact details of those expenses. [58] There is a final standalone claim that must be considered. LTC pleads in the third party claim that “[c]ontamination migrated from one of Lots 17, 18 and 19 to the other Lots.” Based on this plea, LTC submits that it has continuing causes of action in nuisance and negligence against Eaton (the former owner of lots 17 and 18) as a neighbour (the owner of lot 19). I would reject this argument for two reasons. [59] First, this submission was not raised in the court below, in LTC’s factum filed on the appeal, or in LTC’s counsel’s initial oral submissions. It was raised for the first time when counsel for LTC was making her reply submissions. Thus, in addition to the concerns discussed above regarding new arguments raised on appeal, we have the added problem that counsel for Eaton has had no opportunity to respond to this argument. [60] Second, assuming without deciding that such a claim could be asserted in these circumstances, there is no suggestion in the third party pleading that the migration is continuing.  On the contrary, in the paragraphs that reference migration between lots, the migration is referred to in the past tense. There is no reference to continuing migration between lots. Thus, this is not alleged to be a continuing tort. Accordingly, the limitation period expired on the second anniversary of the date on which LTC knew or ought to have known of the matters in s. 5(1)(a). For the reasons outlined above, I agree with the motion judge that the third party claim was issued more than two years after the date of LTC’s actual or constructive knowledge of a claim against Eaton. IV. Disposition [61] I would dismiss the appeal and order that the appellant, LTC, pay Eaton its costs of the appeal in the agreed-upon, all-inclusive sum of $25,000. Released: “P.L.” February 4, 2021 “C.W. Hourigan J.A.” “I agree. P. Lauwers J.A.” “I agree. David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Baldwin v. Imperial Metals Corporation, 2021 ONCA 114 DATE: 20210222 DOCKET: M52162 (C68768) Roberts J.A. (Motions Judge) BETWEEN Claire Baldwin Plaintiff (Appellant) and Imperial Metals Corporation, J. Brian Kynoch, Andrew Deepwell, Larry G. Moeller, Laurie Pare, N. Murray Edwards, Edco Financial Holdings Ltd. and Edco Capital Corporation Defendants (Respondents) Garth Myers, for the moving party/proposed intervenor, Osgoode Investor Protection Clinic Michael G. Robb and Garett Hunter, for the appellant Lawrence E. Thacker and Aoife Quinn, for the respondents Heard: February 8, 2021 by video conference REASONS FOR DECISION [1] T he Osg oode Investor Protection Clinic ( “ the Clinic ” ) seeks leave to intervene as a friend of the court in this appeal pursuant to r r . 13 .02 of the R ules of Civi l Procedure , R .R.O. 1990, Reg. 194 . Th e appeal concerns the interpretation of various provisions of the Securit ies Act , R.S.O. 1990, c. S.5 , including the meaning of “ public corrections ” and th e test for leave to bring a statutory claim for sec ondary marke t misrepresentation under s s . 138.3(1) and 138. 8( 1) . The appellant takes no p osition with respect to this motion. The respondents are opposed. [2] T he test for intervention is well e stablished. In determining whether an application for intervention should be g ranted, the matters to be considered are : “ the nature of the case , the issues which arise and the likelihood of the applicant being able to make a useful contribution to the reso lution of the a ppeal without causing injustice to the immediate pa rties ” : Peel (Regi onal Municipality) v. Gr e at Atlantic & Pacific Co. of Canada Ltd. ( 1990 ), 74 O.R. (2d) 164 (C.A.) , a t p. 167 . [3] What constitutes “ a useful contribution ” will depend on the circumstances of the case . The fact tha t an intervenor ’ s submission s reflect one or both of the parties ’ positions is no bar to intervention provided the intervenor can make a usefu l contribution. N o useful contribution can be offered by an interve nor who essentially repea ts the position advanced by a party , even with a d ifferent e mph asis : Jones v. Tsige , [2011] O.J. No. 4276 (C.A.) , at para. 29 ; Stadium Corp. of Ontario Ltd. v. Toronto (City) , [1992] O.J. No. 1574 (Div. Ct.) , at para. 14, rev ’ d on other grounds, 12 O.R. (3 d) 646 (C.A.) . [4] Rule 13 provides that a person may obtain leave to i ntervene in proceedings as an added party or as a “ friend of the court ” . Th e Clinic seeks to intervene as a friend of the court under r ule 13.02 “for the pur p ose of rendering assistance to t he court by way of argum ent ” . T he language of r u le 13.02 refle cts the historical role of a frie nd of the court as a n eutr al “ person or bystander who has no interest in the proceedings an d intervenes simply to call the attention of the Court to some point in law or fact which es caped its notice ” : Nakon ag os v. Hump hrey , [ 1996] O.J. No. 2 0 02 (Gen . Div .), at para. 24. A friend of the court serves the court , not the parties . The role connotes “ an element of i mpartiality or altruism ” : Peixeiro v. Haberman , [ 1994 ] O . J. No. 2459 ( Gen. Div.), at para. 19 . [5] I n this case, t he Cli nic ’ s expertise in Se cur ities Act mat ters is not di sputed , and its interest i n the subject matter of th e appeal is legitimate . However, I am not persuaded that i t will make the kind of useful c ontributio n that is required of an intervenor, no r that it will be seen to have the requisite indep enden ce to act as a friend of the court . [6] T he principa l issues under appeal are ma tters of stat utory interpretation that will be fully canvassed by the partie s ’ skilled and exp erienced counse l , all with subs tantial expert ise in securit ies law . The Clinic ’ s proposed arguments e ss en tially mirror those of the appellant , as ref lec ted in the appellant ’ s notice of appeal and appeal factum . A ppellant ’ s counse l acknowl edged that none of the Clinic ’ s proposed submissi ons contradict ed or undermined the appellant ’ s position , and he agreed that the appe llant could make any of the submissi ons that the C linic propose s to advance . [7] T he likelihood tha t the Clin ic will si mply ech o or amplif y the appellant ’ s arguments is compou nde d by the c lo se relationship between the Clinic and appellant ’ s counsel. O n e of the Clini c ’ s named cou nsel on this motion previously acted for the appellant in these pr oceedings when he was an associat e law yer with Si skinds . In that role, he provided aff ida vit evidence in support o f the appellant ’ s application for leave to commence an action under the Securities Act . I also note t hat the two firms representin g the appellant on appeal (as well as the firm rep resenting the Clinic on this motion ) are amo ng t en law firms wh ich the Clinic refers to as “ partne rs ” for the prov ision of pro bono services . While un doubtedly acting with altruistic intentions in accordance with its mandate , th e Clinic ’ s connection s with the appellant undermin e the appearance of impar t iality needed t o ac t as a friend of the court . [8] I n these circums tances, g ranting intervenor status to the Clinic wo u ld create an imbalance or the appeara nce of an im balance between the parties : Dun kin ’ Brands Canada Ltd. v. Bertico inc. , 2013 QCCA 867 , a t para s. 23-24 ; Ra ibex Canada Ltd. v. ASWR Franc hising Co rp. , 2017 CarswellOnt 21537 , at para. 34. [9] A cco rdingly, the motion for leave to intervene is dismissed. [10] T h ere shall be no costs of this motion. “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Anisman v. Drabinsky, 2021 ONCA 120 DATE: 20210224 DOCKET: C68259 MacPherson, Gillese and Nordheimer JJ.A. BETWEEN Phillip Anisman Plaintiff (Respondent) and Garth H. Drabinsky and Ann Elizabeth Winford-Drabinsky Defendants (Appellants) Jonathan Lisus and Nadia Campion, for the appellants Philip Anisman, for the respondent Heard: February 22, 2021 by video conference On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated February 25, 2020. REASONS FOR DECISION [1] For the reasons of Morgan J., with which we substantially agree, the appeal is dismissed. [2] Costs to the respondent fixed at $15,000, inclusive of disbursements and HST. “J.C. MacPherson J.A.” “E.E. Gillese J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Achtem v. Boese, 2021 ONCA 284 DATE: 20210504 DOCKET: C68744 Huscroft, Nordheimer and Harvison Young JJ.A. BETWEEN Neil Michael Achtem Applicant (Appellant) and Katrina Rose Boese Respondent (Respondent) Derek M. Sinko, for the appellant Matthew J. Lambert, for the respondent Heard: April 26, 2021 by video conference On appeal from the order of Justice R. John Harper of the Superior Court of Justice, dated September 18, 2020. REASONS FOR DECISION [1] The appellant, Mr. Achtem, obtained an order in the Supreme Court of British Columbia against the respondent, Ms. Boese, on August 10, 2009. Mr. Achtem obtained an order from the Ontario Superior Court of Justice on September 19, 2011, which registered the order from British Columbia as an Ontario judgment. Mr. Achtem has received some payment on the judgments, but there is still $333,717.50 that remains outstanding. [2] Ms. Boese owns two properties in Brantford, Ontario. She resides in one property and rents out the other. In July 2012, Mr. Achtem’s Ontario lawyer, Mr. Cohen, advised Mr. Achtem that any further expenditure of time or effort would not recover anything, given the likely value of the properties and Ms. Boese’s disability income, which would not be garnishable. On August 15, 2012, Mr. Cohen sent a letter to Ms. Boese inquiring for “the last time” on a voluntary basis about her income and the income and expenses of the properties she owns, and threatening enforcement proceedings if she did not provide the information voluntarily. Mr. Achtem did not pursue further action to enforce because he thought that there was little equity in Ms. Boese’s properties. There was no further communication with Ms. Boese after that letter. [3] Mr. Achtem did not issue a writ of seizure and sale within six years of obtaining the Ontario order. In March 2018, Mr. Achtem was advised by his British Columbia lawyer that the British Columbia order would expire soon. At that point, Mr. Achtem reassessed the options available to him. He served a motion record on Ms. Boese on October 29, 2018, for an order granting leave to issue a writ of seizure and sale. [4] The motion judge referred to r. 60.07 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Judgment creditors may issue writs of seizure and sale as of right if less than six years have elapsed from the date of the judgment. Under r. 60.07(2), however, if six years or more have elapsed since the date of the order, leave of the court is required to issue a writ of seizure and sale. He observed that a very low evidentiary threshold applies to a judgment creditor who requests leave and that it is a rare case where a judgment creditor cannot meet the test. He cited the test for leave to file a writ, which is the same as the test for granting leave to issue a notice of garnishment under r. 60.08(2), from Royal Bank of Canada v. Correia , 2006 CanLII 26976 (Ont. S.C. (Master)): [W]hen a plaintiff seeks leave under rule 60.08(2) to issue a notice of garnishment more than six years after the date of judgment, he must adduce evidence explaining the delay such [that] the court may conclude that the plaintiff has not waived its rights under the judgment or otherwise acquiesced in non-payment of the judgment. The defendant may raise other grounds to convince the court that it would be inequitable to enforce the claim. For example the defendant could demonstrate that he has relied to his detriment or changed his financial position in reliance on reasonably perceived acquiescence resulting from the delay. Of course the onus would be on the defendant to adduce evidence of such reliance and detriment. [Emphasis in original.] [5] The motion judge found that Mr. Achtem did not provide evidence to explain the delay, “other than his admission that he did not take action as he felt there was little value in any of the properties that would make it worth his while to pursue his enforcement rights.” The motion judge noted that this went to the inference that Mr. Achtem was waiving his rights precisely because it would not be worth his cost to pursue his rights. [6] The motion judge also referred to Ms. Boese’s evidence that she had relied on the lack of enforcement by Mr. Achtem by changing her financial position, including incurring new debts and financing secured by her properties, not declaring bankruptcy, and managing her properties differently, especially her rental property where she completed renovations. The motion judge found that Ms. Boese did rely on the lack of enforcement and that if Mr. Achtem had diligently pursued his rights, Ms. Boese could have had financial options other than maintaining her properties, such as entering into proposals or bankruptcy. [7] The motion judge accordingly dismissed Mr. Achtem’s motion for leave to file a writ. Mr. Achtem appeals the motion judge’s order. A. Discussion [8] The standard of review, as the parties agree, is palpable and overriding error. [9] The parties also agree that the motion judge set out the correct test for leave to issue a writ of seizure and sale. The party seeking leave is required to explain the delay such that the court may conclude that the judgment creditor has not waived its rights under the judgment or otherwise acquiesced in non-payment of the judgment. [10] Mr. Achtem submits that the motion judge made findings and drew inferences that were not reasonable and not supported by the evidence regarding both his explanation for the delay and whether it would be inequitable to enforce the order. Ms. Boese submits that the motion judge’s findings were a result of assessing the evidence as a whole and weighing the evidence, such that his findings and conclusions do not amount to palpable and overriding error. (1) The trial judge erred in inferring waiver [11] Mr. Achtem argues first that the motion judge fell into error in inferring waiver on the evidence before him. We agree. [12] To begin, there was no evidence of waiver other than the delay itself, which was relatively short. Mr. Achtem’s motion record was served on Ms. Boese in October 2018, some 13 months after the expiration of the 6-year period in September 2017. Both parties relied on various cases in support of their respective arguments about the sufficiency or insufficiency of the delay in this case. We are satisfied that these cases do not support the proposition that a delay of this length, without more, can constitute a waiver in the presence of a plausible explanation for the delay. Mr. Achtem and Ms. Boese had never met and never communicated except through lawyers. Ms. Boese, notably, does not allege any words or conduct on the part of Mr. Achtem or his lawyers that suggested that he was waiving his right to enforce his judgment. [13] Second, Mr. Achtem provided an explanation for the delay, which was that he believed there to be little or no equity in the Ontario properties owned by Ms. Boese at the time he obtained his judgment. In 2012, communication with Mr. Cohen indicated that this was likely still the case, and that it would be a waste of time and money to try to enforce the judgment at that time. Mr. Cohen thought that the properties were “either underwater (mortgages exceed value) or are so close that a forced sale … would be an expensive waste” and that the properties would be “almost impossible to market”. There was no evidence before the motion judge to suggest that this was anything other than a bona fide explanation for the delay. [14] The motion judge’s inference of waiver was palpably unjustified on the record before him. The appellant had an outstanding judgment of around $333,000. As the motion judge himself observed, the evidentiary threshold of providing an explanation for the delay is low: at para. 22. In finding that Mr. Achtem’s explanation that it was not worth his while to enforce his judgment earlier constituted a waiver of his right to enforce, the motion judge effectively imposed a much higher threshold. Further, the motion judge stated that Mr. Achtem’s explanation for the delay went “more to the inference that he was waiving his rights precisely because it would not be worth his cost to pursue his rights”. This read into Mr. Achtem’s explanation an intention to waive his rights for all time that is not supported by any evidence: at para. 26. [15] In addition, the conclusion that Mr. Achtem, on these facts, waived his right to enforce his judgment, is contrary to the principles forming the context of motions for leave to issue writs. First, there is no limitation period on the enforcement of judgments. Second, as the motion judge himself noted, it would be a rare case where the party seeking leave is unable to meet the test by sufficiently explaining the delay: Adelaide Capital Corporation v. 412259 Ontario Ltd ., 2006 CanLII 34725 (Ont. S.C.), at para. 13. In the presence of Mr. Achtem’s explanation, and in the absence of evidence other than this relatively short delay from which any waiver could be inferred, the motion judge fell into palpable and overriding error in concluding that the appellant had waived his right to enforce his $333,000 judgment against the respondent. (2) The trial judge erred in finding that it would be inequitable to enforce the judgment [16] Ms. Boese submits that the motion judge correctly found that it would be inequitable to grant the motion to file the writ in these circumstances for two reasons. First, she reasonably believed, based on the delay, and not having heard from the appellant for over six years, that he was not pursuing the enforcement of the judgment. Second, she argues that she detrimentally relied on this understanding by choosing to repair and maintain her homes and in the manner in which she conducted her finances. [17] We disagree. First, we do not agree with Ms. Boese that it was reasonable to believe, based only on the absence of communication from Mr. Achtem, that he had waived his right to enforce his judgment at some point. This was a significant amount of money. Ms. Boese acknowledged that she had never met or spoken to Mr. Achtem. There is nothing in the evidence that could support a reasonable belief on her part that Mr. Achtem would not enforce his judgment. As already discussed, we do not accept that the mere passage of this period of time, given his explanation and the absence of any suggestion from him that he would not enforce, could constitute the basis of a reasonable belief that he was waiving his rights for all time. [18] Nor do we agree that Ms. Boese detrimentally relied on any reasonable belief. All the expenses to which she refers are, as Mr. Achtem points out, expenses that were necessary to continue earning the rental income from one of her two properties, such as painting of units for new tenants, a new roof at one point, and on one occasion, a new furnace. Her suggestion that she would have taken other steps such as declaring bankruptcy is not persuasive. There is no evidence that she has ever taken any steps to declare bankruptcy, including during the period before the expiration of the six-year period. The conclusion that the respondent detrimentally relied on her belief that the appellant had waived his right to enforce his judgment for all time by not enforcing it earlier was a palpable and overriding error that warrants the intervention of this court. B. Disposition [19] For the foregoing reasons, the appeal is allowed. The order below is set aside, and leave is granted to the appellant to issue a writ of seizure and sale against the respondent as sought. All inclusive costs of $8,000, as agreed, are payable by the respondent to the appellant. “Grant Huscroft J.A. ” “I.V.B. Nordheimer J.A. ” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Asghar v. Toronto (Police Services Board), 2021 ONCA 338 DATE: 20210520 DOCKET: M52233 (C68902) Strathy C.J.O., Feldman and Sossin JJ.A. BETWEEN Sajjad Asghar Plaintiff (Appellant/Moving Party) and The Toronto Police Services Board, Members Chair Jim Hart, Marie Moliner (Vice-Chair), Mayor John Tory, Michael Ford Councillor, Councillor Frances Nunziata, Ainsworth M. Morgan, Lisa Kostakis Defendants (Respondents/Responding Parties) and The Toronto Police Chief (Ex-Incumbent) Mark Saunders Defendant (Respondent/Responding Party) and The Toronto Police Special Constable Joseph Pihura # 90483 Defendant (Respondent/Responding Party) Sajjad Asghar, acting in-person Natalie Salafia, for the responding parties Heard: in writing REASONS FOR DECISION [1] The self-represented moving party, Mr. Asghar, brings this motion to review the order of the chambers judge, dated January 15, 2021, dismissing Mr. Asghar’s interim motion for an order: (1) requiring the responding parties to produce certain “video and audio recordings, transcripts etc.”; (2) permitting electronic filing and service of all appeal materials; and (3) granting an extension of time to perfect his appeal. [2] The motion before the chambers judge was brought in the context of Mr. Asghar’s appeals from three orders of Ferguson J., all dated November 19, 2020, dismissing three separate actions brought by Mr. Asghar against the Toronto Police Services Board, a Toronto Police special constable, and various other Toronto municipal and police entities and officials. Ferguson J. found each of those actions to be frivolous, vexatious, and an abuse of process within the meaning of r. 2.1 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 143. [3] Mr. Asghar filed a motion before the chambers judge seeking interim relief in one of his appeals, which bears the court file number C68902. The primary relief sought by Mr. Asghar on that motion was the production of video and audio recordings and transcripts allegedly depicting one of the respondents to that appeal, a Toronto Police special constable, inappropriately interacting with “opposing and contentious parties” while inside the “ONCA courthouse”. Mr. Asghar submitted before the chambers judge that footage from security cameras inside certain areas of the courthouse would be “important” for his appeal, urging that the panel who would decide that appeal needed to see “the gravity of the situation”. [4] On January 15, 2021, the chambers judge concluded there was “no foundation to make the order requested” and dismissed Mr. Asghar’s motion. [5] On this panel review motion, Mr. Asghar seeks to set aside the order of the chambers judge and obtain the same relief sought on the underlying motion. We decline to grant that relief. [6] A panel review of a chambers judge’s decision is not a de novo determination. Where the chambers judge has made a discretionary decision, the decision is entitled to deference and the reviewing panel will not interfere absent legal error or misapprehension of material evidence: Machado v. Ontario Hockey Association , 2019 ONCA 210, at para. 9. In addition, if the chambers judge committed an error in principle, the panel may intervene: Yaiguaje v. Chevron Corporation , 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21. [7] Applying the foregoing, we see no basis on which to interfere with the decision of the chambers judge. [8] Accordingly, Mr. Asghar’s panel review motion is dismissed. [9] We would note, however, that this court permits electronic service and filing of appeal materials: “Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic”, (March 15, 2021), at 34 and 43. As such, parties do not require an order of this court to electronically file and serve appeal materials. [10] We would further note that Mr. Asghar’s separate appeal bearing the court file number C68903 was perfected on February 4, 2021. That appeal is scheduled to be heard by a panel of this court on September 7, 2021. “G.R. Strathy C.J.O.” “K. Feldman J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Atlas (Brampton) Limited Partnership v. Canada Grace Park Ltd., 2021 ONCA 221 DATE: 20210409 DOCKET: C68360 Lauwers, Miller and Nordheimer JJ.A. BETWEEN Atlas (Brampton) Limited Partnership, Romlex International Ltd. and Peter Grigoras Applicants (Appellants) and Canada Grace Park Ltd., Xing Ou Yang and Atlas Springbank Developments Ltd. Respondents (Respondents) Jeffrey A. Kaufman and Bradley Adams, for the appellants Paul H. Starkman, for the respondents Heard: December 3, 2020 by video conference On appeal from the judgment of Justice David Aston of the Superior Court of Justice, dated April 6, 2020, with reasons reported at 2020 ONSC 1861. Lauwers J.A.: A. Overview [1] Atlas (Brampton) Limited Partnership borrowed $1,800,000 from Canada Grace Park Ltd. The loan was secured by a pledge of shares in Atlas Springbank Developments Ltd. given by Romlex International Ltd. to Canada Grace Park Ltd. Less than a year after the loan was made, Atlas Brampton defaulted and Canada Grace purported to foreclose on the pledged shares and to retain them in satisfaction of the debt . As the result, Canada Grace argues that it now owns Atlas Springbank. Both respondent companies are owned by Xing Ou Yang, also known as Jenny O. The appellant Peter Grigoras owns the appellants Romlex and Atlas Brampton. [2] The appellants applied for a declaration that Canada Grace’s foreclosure on the shares in Atlas Springbank was void for noncompliance with the notice requirements of the Personal Property Security Act , R.S.O. 1990, c. P.10 (“ PPSA ”) and sought an order that the pledged shares be returned to Romlex. The application judge dismissed the application and denied equitable relief from forfeiture. [3] For the reasons that follow, I would dismiss the appeal. B. Issues [4] The appellants argue that the application judge erred in: 1. Failing to apply Part V of the PPSA , which would have given the appellants a right to redeem the pledged shares by tendering payment of the outstanding debt; 2. Misinterpreting the text of the security agreement between the parties to find that it gave Canada Grace a right of foreclosure; 3. Misapplying the case of Harry Shields Ltd. v. Bank of Montreal (1992), 7 O.R. (3d) 57, [1992] O.J. No. 68 (Gen. Div.), in finding that Canada Grace could rely on the freestanding contractual right of foreclosure outside of the PPSA . [5] Before the hearing, the panel requested the parties to make submissions on the role, if any, that s. 17.1 of the PPSA might play in this case. Section 17.1(2) provides that “a secured party having control… of investment property as collateral may sell, transfer, use or otherwise deal with the collateral in the manner and to the extent provided in the security agreement.” The pledged shares in Atlas Springbank are “investment property” as defined in s. 1 of the PPSA . The respondents argue that they had control of the pledged shares and were therefore entitled to foreclose under s. 17.1(2) without notice to the appellants. [6] The analysis is structured under three issues: 1. What is the nature of Canada Grace’s security interest in the pledged Atlas Springbank shares? 2. Does s. 17.1(2) of the PPSA permit Canada Grace to foreclose on the pledged shares? 3. Does Part V of the PPSA permit Canada Grace to foreclose on the pledged shares? I address these issues after setting out the factual context and the application judge’s decision. C. Factual Context [7] Romlex owned a commercial real estate development property located on Springbank Drive in London, Ontario. In 2018, Jenny O approached Mr. Grigoras, the owner of Romlex, about the possibility of her investing in the Springbank property. Mr. Grigoras agreed. [8] The parties incorporated Atlas Springbank Developments Ltd. in order to develop the Springbank properties together. Romlex transferred the Springbank properties to the new entity, Atlas Springbank, in return for $2,400,000 and 55 percent of Atlas Springbank’s shares. Jenny O acquired 45 percent of Atlas Springbank’s shares through Canada Grace. Romlex and Canada Grace entered into a shareholder agreement governing the affairs of Atlas Springbank on May 1, 2018. This left Mr. Grigoras with control of Atlas Springbank. [9] On May 10, 2018, Atlas Springbank loaned $1,800,000 to Atlas Brampton for a purpose that is not disclosed by the record before us. The first interest payment by Atlas Brampton to Atlas Springbank was due November 10, 2018 and the loan was to come due on February 28, 2019. There was some dispute between the parties as to whether the February 28, 2019 due date was agreed but the application judge found that February 28, 2019 was the proper due date. [10] Atlas Brampton failed to make the first interest payment on November 10, 2018 and the loan then fell into default. To address Atlas Brampton’s default, in December 2018 the parties negotiated and signed a “Supplementary Agreement to the Loan Agreement with Security and Guarantor” (the “Security Agreement”). The Security Agreement contained three key provisions. First, Mr. Grigoras agreed to personally guarantee the loan from Atlas Springbank to Atlas Brampton. Second, Romlex agreed to pledge all of its shares in Atlas Springbank to Canada Grace such that, upon default by Atlas Brampton, the shares would be “transferred” to Canada Grace for the nominal sum of $2, paid in advance. Jenny O received an “irrevocable Power of Attorney” to effect the transfer of Atlas Springbank’s shares from Romlex to Canada Grace upon Atlas Brampton’s default. Third, in the event of such default, Mr. Grigoras would be “deemed as being removed” as a director of Atlas Springbank. In short, if Atlas Brampton defaulted on the loan, Jenny O could unilaterally take ownership and control of Atlas Springbank. [11] The parties finalized and signed the Security Agreement on or around December 12, 2018. However, almost simultaneously, Atlas Brampton was put into receivership by a third party. The precise cause of the receivership is not on the record. Mr. Grigoras knew about the receivership when he signed the Security Agreement but he did not tell Jenny O, who found out about it on December 17, 2018. Falling into receivership was an act of default by Atlas Brampton. (The receivership was discharged in April 2019.) [12] Atlas Brampton also failed to pay the balance of the loan when it came due on February 28, 2019. Consequently, as of March 1, 2019, there were two defaults: one for Atlas Brampton falling into receivership and the other for its failure to pay the loan off. [13] On March 1, 2019, Atlas Springbank’s solicitor wrote to Mr. Grigoras on behalf of Canada Grace to inform him that she had transferred Romlex’s shares in Atlas Springbank to Canada Grace in accordance with the Security Agreement and had removed him as a director of the corporation. The letter stated that Canada Grace was now the sole shareholder of Atlas Springbank and did not offer any possibility of curing the default or redeeming the pledged, now transferred, shares. [14] On July 25, 2019, the appellants issued a notice of application seeking a declaration that the transfer of Romlex’s shares in Atlas Springbank to Canada Grace was null and void and that Romlex remained the beneficial owner of the shares. They also sought an order that Mr. Grigoras be reinstated as a director of Atlas Springbank. The appellants asserted that they were entitled to notice under s. 63(4) of the PPSA of Canada Grace’s intention to foreclose on the pledged shares and were also entitled to an opportunity under s. 66 of the PPSA to redeem the pledged shares by paying the amount due under the loan. [15] In the alternative, the appellants sought a new opportunity to redeem the transferred shares by paying the amount due. In the further alternative, the appellants sought equitable relief from forfeiture under s. 98 of the Courts of Justice Act , R.S.O. 1990, c. C.43. D. The Application Judge’s Reasons [16] It was not in dispute before the application judge that the PPSA applied to the Security Agreement. The application judge noted that s. 63 of the PPSA authorizes a secured party to “dispose” of collateral upon default, subject to the requirement under s. 63(4) to give notice to the debtor and any other person having an interest in the collateral. He also noted that any person entitled to receive notice is also entitled, under s. 66 of the PPSA , to redeem the collateral by “tendering fulfillment of all obligations secured by the collateral.” [17] The application judge found that Canada Grace had not given the requisite notice and therefore had no “statutory right” to “dispose” of the collateral under the PPSA : at para. 19. However, he found that “their failure to avail themselves of their statutory right under the PPSA does not matter because they acted within their contractual right under the Security Agreement”: at para. 19 (emphasis in original). The application judge characterized Canada Grace’s contractual right as “effectively amount[ing] to foreclosure.” [18] In so concluding, the application judge pointed out that s. 59(5) of the PPSA prohibits the waiver or variation of the rights of a debtor or the duties of a secured party when the secured party pursues the remedies set out in Part V of the PPSA : at para. 20. However, he noted that the respondents had “never invoked their right to any remedy authorized under the PPSA ” and that the “applicants only have a right of redemption under the PPSA if the secured party chooses to pursue a remedy under the PPSA .” [19] In stepping outside the PPSA , the application judge relied on Harry Shields . In that case, the plaintiff, Harry Shields Ltd., executed a demand debenture in favour of Bank of Montreal and then pledged the debenture to the bank. The court held that the bank was entitled to enforce the debenture without regard to the duties of a pledgee under the PPSA . In this case, the application judge found that “[l]ike the Bank of Montreal in Harry Shields , Canada Grace Park and Jenny O did not rely on the PPSA for a remedy. They did not need to do so”: at para. 23. He concluded: “The applicants cannot rely on the PPSA for the relief they seek”: at para. 24. [20] The application judge refused the appellants’ request for equitable relief from forfeiture. He took into account the conduct of the appellants and weighed four factors against them: 1. The appellants had not disclosed the receivership order against Atlas Brampton when they signed the Security Agreement. 2. Mr. Grigoras denied agreeing to change the due date of the loan and falsely accused Jenny O of fraudulently changing the date on the agreement. 3. Romlex continued to collect rent from the tenants of the Springbank property without accounting to Atlas Springbank, the owner of the property, for that rent. 4. The appellants waited too long before bringing the application for relief, without explanation. [21] Finally, the application judge observed that Canada Grace did not gain a windfall in foreclosing on the pledged shares because the principal loan amount of $1.8 million, with interest, was now nearly equal to the value of the underlying Springbank property. The application judge denied equitable relief from forfeiture, noting that the appellants had not established their ability to pay. E. ISSUE ONE: What Was the Nature of Canada Grace’s Security interest in the pledged Atlas Springbank Shares? [22] The parties’ principal arguments on appeal focused on the application judge’s finding that Canada Grace had an independent contractual right to foreclose on the pledged shares outside of the PPSA . However, the panel requested the parties’ submissions on s. 17.1 of the PPSA , which grants additional rights to a “secured party having control of investment property”, in order to determine whether and how its provisions might apply in this case. [23] The respondents cited s. 17.1(2), which provides: a secured party having control under subsection 1 (2) of investment property as collateral may sell, transfer, use or otherwise deal with the collateral in the manner and to the extent provided in the security agreement. [24] The respondents argued that Canada Grace, as a secured party with control of the pledged shares, was entitled to “transfer, use, or otherwise deal with the collateral” in the manner provided in the security agreement, which was to take the shares in satisfaction of the debt. [25] The application judge did not specifically address whether Canada Grace could be considered a “secured party having control of investment property as collateral” for the purposes of s. 17.1 because it was not argued before him. However, the question was fully joined in the parties’ written submissions on appeal and it is appropriate for this court to make the determination. [26] As I will explain, Canada Grace did have control of the pledged shares as collateral for the purposes of s. 17.1. I begin by setting out the governing principles. (1) The Governing Principles [27] Contemporary personal property security legislation was intended to simplify and rationalize the law of secured transactions. Under s. 2(a), the PPSA applies to “every transaction without regard to its form and without regard to the person who has title to the collateral that in substance creates a security interest.” The PPSA adopts a “functional approach to determining what security interests are covered by its provisions”: Bank of Montreal v. Innovation Credit Union , 2010 SCC 47, [2010] 3 S.C.R. 3, at para. 18. Almost anything that serves functionally as a security interest is a security interest for the purposes of the Act: I Trade Finance Inc. v. Bank of Montreal , 2011 SCC 26, [2011] 2 S.C.R. 306, at para. 26. Subsection 2(a)(i) of the PPSA specifically includes a pledge among the forms of transaction that give rise to a security interest. [28] The steps required to create a security interest in collateral, on the one hand, must not be confused with the steps required to make a security agreement enforceable against third parties, on the other hand. Under s. 9(1) of the PPSA , a consensual security agreement is “effective according to its terms between the parties to it.” By contrast, under s. 11, “[a] security interest is not enforceable against a third party unless it has attached”. Attachment can be achieved in different ways, under s. 11(2) of the PPSA , depending on the nature of the collateral. The question of attachment is not strictly at issue in this case since there is no third-party claim on the pledged collateral. I use the language of attachment to reflect the fact that Canada Grace’s security interest did attach to the pledged shares. [29] If Canada Grace became a “secured party having control of investment property” for the purposes of s. 17.1 of the PPSA , then Canada Grace could in theory “sell, transfer, use or otherwise deal with the collateral”, subject only to the terms of the security agreement. Each of the terms “investment property” and “control” requires analysis. (a) “Investment property” [30] The term “investment property” is defined in s. 1 of the PPSA as “a security, whether certificated or uncertificated, security entitlement, securities account, futures contract or futures account”. The word “security” is in turn defined by reference to the Securities Transfer Act, 2006 , S.O. 2006, c. 8 (“ STA ”). Under ss. 1 and 10 of the STA , the term security includes a share or equity interest issued by a corporation. In this case, the pledged shares fit the STA definition of “security” and, by extension, “investment property”. (b) “Control” [31] The concept of “control” was introduced into Ontario law through the STA in 2006, accompanied by simultaneous amendments to the PPSA . [32] The 2006 amendments to the PPSA responded to a concern that the PPSA was ill-equipped to deal with declining physical share ownership and the growth of the “indirect holding system” in capital markets. In the indirect holding system, shareholders own shares and other securities through securities intermediaries, clearing services, banks, or other financial institutions. The development of the indirect holding system permitted greater efficiency in securities trading but left the law of secured transactions to rely on increasingly unwieldy analogies to physical share ownership in order to accommodate use of securities accounts and book entries as collateral: see Richard McLaren, Secured Transactions in Personal Property in Canada , loose-leaf, 3rd ed. (Toronto: Carswell, 2016), at para. 1.04; Robert Scavone, “Stronger than Fictions: Canada Rethinks the Law of Securities Transfers in the Indirect Holding System” (2007) 45 Can. Bus. L.J. 67, at p. 77. [33] Professor McLaren concisely sets out the concept of control, at para. 14.03: Control is the functional equivalent of the prior law’s notion of physical possession of a certificated security, but has been expanded to conform to current market practices with regard to investment property. Under the STA, control is not limited to physical possession, however includes it within the concept. See also Eric Spink, “Securities Transfer Act – Fitting New Concepts in Canadian Law” (2007), 45 Can. Bus. L.J. 167, at p. 184. Control exists when the secured party is in a position to liquidate the property without any further involvement from the owner of the property: Scavone, at pp. 23-30; Spink, at p. 185. [34] The STA defines “control” by reference to the different means of acquiring it, depending on the nature of the collateral. Sections 23-26 of the STA describe how a purchaser can acquire control of certificated securities (s. 23), uncertificated securities (s. 24), or “security entitlements”, which is the broader category encompassing, most notably, securities accounts (s. 25). The PPSA incorporates each manner of obtaining control in s. 1(2), which refers to a “secured party” rather than a “purchaser”. In each case, “control” essentially mimics a pledge arrangement. [35] If the parties employ certificated securities, s. 23 of the STA states that control may be established by simple possession of the certificates. This arrangement resembles a traditional pledge whereby one party places the physical share certificates in the other’s possession. [36] In the case of uncertificated securities such as the pledged shares in Atlas Springbank, s. 24 of the STA establishes that the secured party will have control of an uncertificated security if (a) the uncertificated security is delivered to the secured party (i.e. registered in the secured party’s name on the books of the issuer); or (b) the issuer has agreed that the issuer will comply with instructions that are originated by the secured party without the further consent of the registered owner. This latter arrangement is referred to as a “control agreement”. [37] While the STA enumerates a fixed set of methods for obtaining control based on the nature of the investment property, the notion of control must be applied functionally rather than formalistically. For instance, a control agreement governing uncertificated securities need not take a particular form so long as it grants the secured party rights to give instructions to the issuer and to deal with the securities without the further consent of the registered owner. [38] Control, as defined in the STA , plays a number of roles in the PPSA scheme. Under s. 11(2)(d) of the PPSA , a secured party’s security interest in investment property attaches when the secured party has control of it. Similarly, a secured party may perfect a security interest in investment property by control under s. 22.1 in order to establish priority in a dispute between secured parties. For the purposes of this appeal, control is a pre-requisite to the application of certain remedies, including the remedies set out in s. 17.1 on which Canada Grace relies. (2) The Principles Applied (a) Canada Grace acquired control of the pledged shares [39] Neither party disputes that the PPSA applies to the Security Agreement in this case. The Security Agreement was plainly designed to secure Atlas Brampton’s debt. Instead, the disagreement turns on whether and when Canada Grace obtained control of the pledged shares. [40] The respondents argue that Canada Grace’s security interest in the pledged shares attached on or around December 12, 2018, when the Security Agreement was signed. In their submission, the Security Agreement also functioned as a control agreement within the meaning of the STA because Romlex (which the respondents mistakenly identify as the “issuer” of the pledged shares) agreed to comply with Canada Grace’s future instructions. Canada Grace therefore acquired control of the shares simultaneously with the signing of the Security Agreement. [41] The appellants argue, by contrast, that Canada Grace’s security interest in the pledged shares only attached on March 1, 2019, when the solicitor for Atlas Springbank transferred ownership of the shares to Canada Grace on the books of the corporation. The appellants rely on s. 17.1(1)(c) of the PPSA , which states that “a secured party having control … of investment property as collateral … (c) may create a security interest in the collateral.” They argue that March 1, 2019 was the first time Canada Grace could “create a security interest in the collateral” because it was the first time Canada Grace had “control” of the shares as their owner. Following the appellants’ logic, the March 1 transfer should be seen as the true creation of the pledge and not as the moment of foreclosure on previously pledged property. [42] I generally agree with the respondents. However, I note that Romlex is not the “issuer” of the pledged shares. Atlas Springbank issued the shares to Romlex, which in turned pledged them to Canada Grace. However, this error in terminology does not affect the validity of the respondent’s underlying argument. [43] In my view, the Security Agreement gave Canada Grace control over the pledged shares. Because the shares in issue are uncertificated, the control analysis is governed by s. 24(1)(b) of the STA , which I repeat for convenience: A [secured party] has control of an uncertificated security if: (b) the issuer has agreed that the issuer will comply with instructions that are originated by the [secured party] without the further consent of the registered owner. [44] The relevant text of the Security Agreement provides: 3. Considering the risks to Canada Grace, as the shareholder of the Lender, caused by the Borrower’s performance under the Loan Agreement, Romlex agrees to pledge all Romlex’s Share of Lender and any further shares issued, rights and interest entitled (collectively the “Pledged Shares”) to the Canada Grace [sic]. If the Borrower becomes default [sic] for any reason, the Pledged Shares shall be transferred to Canada Grace at $2 nominal costs (the “Share Transfer”), the receipt of payment of such $2 nominal costs is hereby confirmed by Romlex. To effect such Shares Transfer, all parties agrees that: (3) Romlex shall provide its cooperation to facilitate such Shares Transfer and removal of the Guarantor as director and officers; Romlex hereby provides its irrevocable power of attorney to Jenny to sign relevant documents for Romlex to effect such Shares Transfer and removal, although signing such documents is not required under this agreement . [45] Taking the functional approach to control, I find that this clause creates a control agreement between the parties. The parties to the Security Agreement included all the parties necessary to a control agreement, including the issuer of the shares (Atlas Springbank), the registered owner (Romlex), the debtor (Atlas Brampton), and the secured party (Canada Grace). The effect of subclause (3) is to grant Jenny O authority to cause the shares to be transferred on instructions to Atlas Springbank (the issuer) without the further consent of Romlex (the registered owner), and that is what occurred on March 1, 2019, the date of default. Canada Grace had control over the pledged shares for all practical purposes on December 12, 2018. [46] The appellants’ position is based on a mistaken interpretation of s. 17.1(1)(c). It is incorrect to say that Canada Grace “created” a security interest in the pledged shares at any time. Canada Grace acquired a security interest in the pledged shares from Romlex, the owner of the shares, by virtue of the Security Agreement. Canada Grace could only be described as “creating” a security interest in the pledged shares if it were to grant a security interest to a third party. Moreover, as discussed above, Canada Grace did not need to transfer the pledged shares to itself in order to acquire a security interest in them. Canada Grace’s security interest attached at the moment it obtained control. F. ISSUE TWO: Does s. 17.1(2) of the PPSA permit Canada Grace to foreclose on the pledged shares? [47] The appellants point out that secured parties are generally not permitted to foreclose on collateral without following the procedures set out in Part V of the PPSA , including the mandatory notice period and objection process. The respondents argue to the contrary, that, as secured parties with control over investment property, they were entitled under s. 17.1(2) of the PPSA to deal with the pledged shares in the manner provided in the Security Agreement, which imposes no notice requirement, and without regard to the formalities of the PPSA . [48] In my view, s. 17.1(2) does not entitle the respondents to foreclose on the pledged shares without notice, as I will explain. (1) The Governing Principles (a) The rights and remedies of secured parties [49] The rights, remedies, and duties of a secured party under the PPSA are set out in Part V of the PPSA . Section 59(1) identifies three sources or categories of remedies: Where the debtor is in default under a security agreement, the secured party has the [1] rights and remedies provided in the security agreement and [2] the rights and remedies provided in this Part [V] and, when in possession or control of the collateral, [3] the rights, remedies and duties provided in section 17 or 17.1 , as the case may be. [Numbers and emphasis added.] [50] The principal remedies available under Part V include the sale of the collateral or the acceptance of the collateral in satisfaction of the debt, commonly known as foreclosure. Like the rest of the PPSA , Part V was intended to harmonize a previously unstructured area of the law in which parties were required to select an appropriate remedy from among a patchwork of common law rights: see McLaren, at para. 15.01; Ronald Cuming, Catherine Walsh & Roderick Wood, Personal Property Security Law (Toronto: Irwin Law, 2012), at p. 616. [51] In order to ensure greater certainty and predictability in commercial matters, the remedies set out in Part V are only to a limited extent subject to modification by contract in advance. Section 59(5) provides that the remedies contained in ss. 63-66, including the rules governing sale and foreclosure remedies, cannot be waived or varied by contract to the extent that they give rights to the debtor and impose duties on the secured party. Contractual modifications are only permissible if they benefit the debtor. Ronald Cuming et al. describe Part V in the following terms, at pp. 618-619: For the most part, this scheme of enforcement remedies is mandatory and a secured party has only a limited ability to vary it by contract. The PPSA provides that to the extent that the enforcement provisions give rights to the debtor or impose obligations on the secured party, they cannot be waived or varied except as provided by the Act. Although the PPSA provides that a secured party also has the rights and remedies provided in the security agreement, these cannot detract from the rights conferred upon the debtor by Part V and by section 17. The PPSA permits contractual variation of the remedial scheme if the variation expands the rights available to the debtor on default . [Emphasis added.] [52] It is noteworthy that s. 59 identifies ss. 17 and 17.1 as potential sources of “rights, remedies and duties”. Section 17.1 is the relevant provision when dealing with investment property: (1) Unless otherwise agreed by the parties and despite section 17, a secured party having control under subsection 1 (2) of investment property as collateral, (a) may hold as additional security any proceeds received from the collateral; (b) shall either apply money or funds received from the collateral to reduce the secured obligation or remit such money or funds to the debtor; and (c) may create a security interest in the collateral. (2) Despite subsection (1) and section 17, a secured party having control under subsection 1 (2) of investment property as collateral may sell, transfer, use or otherwise deal with the collateral in the manner and to the extent provided in the security agreement. [Emphasis added.] [53] Section 17.1 creates an exception to the enforcement regime in Part V of the PPSA . It exempts certain forms of investment property held as collateral by removing some of the formal and procedural requirements that could impede a secured party’s ability to deal with the collateral expeditiously. Like other 2006 amendments to the PPSA and STA , the exception in s. 17.1 is aimed at improving efficiency in capital markets. It does this in two ways. [54] First, s. 17.1(1)(c) permits a secured party with control of investment property to create a new security interest in the collateral. This provision permits secured parties with control of investment property to “reuse” shares and other securities held in connection with structured transactions, derivatives, or brokerage accounts. For example, a secured party may re-pledge the collateral to a third party or grant a new security interest in it, subject to the security agreement: Scavone, at p. 86; see also McLaren, at para. 1.04; Jacob Ziegel, David Denomme & Anthony Duggan, Ontario Personal Property Security Act: Commentary and Analysis , 3rd ed. (Toronto: LexisNexis, 2020), at p. 184. [55] Second, s. 17.1(2) removes restrictions on the secured party’s right to dispose of the investment property it holds as collateral, subject only to the terms of the security agreement. Borrowing again from Professor McLaren, s. 17.1(2) “dispels any ambiguities as to whether the secured party can be allowed to sell collateral and prompts the parties to use the security agreement to establish the rights of the secured party to transfer the collateral”: at para. 14.09. I agree, and I would add that s. 17.1(2) presupposes, or at least acknowledges, that parties giving security in investment property are sophisticated actors capable of drafting contracts to suit their mutual need for expeditiousness in fast-moving capital markets. It could be used, for example, to permit contracting parties to define in advance the conditions under which a securities broker would be entitled to liquidate a client’s rapidly depreciating margin account. [56] Section 17.1(2) does not state that a secured party is permitted to accept collateral in satisfaction of the debt under the security agreement. Do the words “sell, transfer, use or otherwise deal” include a right of foreclosure? (2) The Principles Applied [57] As noted, Canada Grace had control of the pledged shares from December 12, 2018. Was Canada Grace, as a secured party with control of investment property, permitted to foreclose on the pledged shares without notice under the Security Agreement? [58] The analysis has two parts. The first construes the Security Agreement. The second construes s. 17.1(2) of the PPSA . (a) The parties intended to create a contractual right of foreclosure [59] The appellants argue that even if s. 17.1(2) could be used to foreclose on the shares, the terms of the Security Agreement itself were not sufficiently precise to give rise to a right of foreclosure. A right of foreclosure could only be created using clear and unequivocal language. [60] I reproduce the terms of the Security Agreement for convenience: 3. Considering the risks to Canada Grace, as the shareholder of the Lender, caused by the Borrower’s performance under the Loan Agreement, Romlex agrees to pledge all Romlex’s Share of Lender and any further shares issued, rights and interest entitled (collectively the “Pledged Shares”) to the Canada Grace [sic]. If the Borrower becomes default [sic] for any reason, the Pledged Shares shall be transferred to Canada Grace at $2 nominal costs (the “Share Transfer”) , the receipt of payment of such $2 nominal costs is hereby confirmed by Romlex. To effect such Shares Transfer, all parties agrees that: (3) Romlex shall provide its cooperation to facilitate such Shares Transfer and removal of the Guarantor as director and officers; Romlex hereby provides its irrevocable power of attorney to Jenny to sign relevant documents for Romlex to effect such Shares Transfer and removal, although signing such documents is not required under this agreement. (Emphasis added.) [61] The appellants argue that the “Share Transfer” in question was not intended to enable foreclosure but only to permit the transfer of possession required to create the pledge. I disagree. [62] The Security Agreement is not ambiguous. The application judge correctly found, at para. 22 of his reasons, that the parties had contemplated a contractual right that “effectively amounts to foreclosure”. I come to this conclusion for two reasons. First, as the respondent argues, the words “pledge” and “transfer” must be given different meanings within the Security Agreement. The Security Agreement refers to two distinct operations on the shares: first, that “Romlex agrees to pledge” the shares and, second, that upon default the “Pledged Shares shall be transferred to Canada Grace”. Read in context, the word “transfer” clearly refers to a further conveyance or disposition of the shares after the initial “pledge”. Canada Grace would already be in possession of the shares at the time of the “transfer”, and the Security Agreement explicitly states that the pledged shares would be “transferred to Canada Grace ” as opposed to a third party. [63] Second, the appellants’ argument that the word “transfer” refers to the creation of the pledge upon default does not make sense in the context of the negotiations between the parties. The Security Agreement came about because Atlas Brampton defaulted under the Loan Agreement by failing to make the first interest payment. Romlex offered a pledge of shares with immediate effect to provide additional security for the loan and to cure Atlas Brampton’s existing default. It cannot plausibly be argued Canada Grace was agreeing that it was only upon the next default that it could take and hold the shares as a pledge. The pledge’s immediate effect is also confirmed by the email exchanges between the parties: “Once the fund is returned the pledged shares will be released in full and returned ” (emphasis added). There could be no return of shares that had not already been given. [64] In my view, the parties intended cl. 3 of the Security Agreement to function as a foreclosure provision. I turn now to the question of whether the clause is effective under s. 17.1(2) of the PPSA and entitles Canada Grace to foreclose without notice to the debtor. (b) May Canada Grace rely on s. 17.1(2) to foreclose without notice? [65] To repeat for convenience, the language in s. 17.1(2) provides: Despite subsection (1) and section 17, a secured party having control under subsection 1 (2) of investment property as collateral may sell, transfer, use or otherwise deal with the collateral in the manner and to the extent provided in the security agreement. [Emphasis added.] [66] This court’s task is to interpret this language, “ sell, transfer, use or otherwise deal with the collateral”, especially “ otherwise deal ”.  In this task the court must interpret the words of the PPSA “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. [67] In my view, s. 17.1(2) does not permit Canada Grace to foreclose on the pledged shares under the Security Agreement without notice. I say this for four reasons. [68] First, s. 17.1(2) creates an exception to the general enforcement scheme set out in Part V of the PPSA . The exception reduces the statutory protections available to the debtor in favour of greater contractual freedom between the parties. This is not, in itself, contrary to the overall scheme of the PPSA , but it does run contrary to the debtor-protective elements of Part V governing remedies, including the prohibition on contractual modifications to the enforcement scheme that would reduce protections for the debtor. It follows that the exception must be construed narrowly. [69] Second, a plain reading of the words “sell, transfer, use or otherwise deal” would exclude a power of foreclosure because it is not one of the enumerated rights. I would bring the principle of implied exclusion to bear on this point. I n University Health Network v. Ontario (Minister of Finance) (2001), 208 D.L.R. (4th) 459, [2001] O.J. No. 4485, Laskin J.A. explained the principle at paras. 30-31. He quoted Professor Ruth Sullivan: “An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly.” Laskin J.A. added: “In other words, legislative exclusion can be implied when an express reference is expected but absent.” [70] In my view, s. 17.1(2) is such a provision. I draw the inference that the legislature did not intend the words “or otherwise deal” in s 17.1(2) to include foreclosure. The PPSA ’s elaborate treatment of foreclosure in Part V leads to the conclusion that if the legislature meant to make foreclosure available as a remedy related to investment property, it would have done so. Recall that the word “foreclose” is used in the marginal notes to ss. 65(6) and (6.1) of the PPSA , and the coordinate expressions “ accept the collateral in satisfaction of the obligation secured” and “ accept the collateral in full satisfaction of the obligation” are used in ss. 65(2) and 65(6) respectively, along with an elaborate procedure leading to foreclosure. [71] Similarly, the words “or otherwise deal” do not open the door to any imaginable transaction. Rather, the words “otherwise deal” are constrained by the earlier words, “sell”, “transfer”, and “use”, which tend toward disposition rather than foreclosure. [72] Third, reading the words “or otherwise deal” with the pledged shares to permit foreclosure does not fit well into the elaborate debtor-protective statutory scheme governing foreclosure that is set out in Part V of the PPSA . [73] Foreclosure entails different legal and practical consequences than sale, transfer, or use. Foreclosure extinguishes the debt, but it may cause the debtor to object that a better result could be obtained through sale. That is the reason for the notice and objection procedure in Part V, which I sketch out briefly. [74] Section 65(2) requires a foreclosing creditor to give notice that it “propose[s] to accept collateral in satisfaction of the obligation secured” – in other words - to foreclose as the marginal note to s. 65(6) states. The secured party “shall serve notice of the proposal [to foreclose] on the persons mentioned in clauses 63(4)(a) to (d),” which includes the debtor, the owner of the collateral, and every person who has a security interest in the collateral. [75] Under s. 65(6), “the secured party shall be deemed to have irrevocably elected to accept the collateral in full satisfaction of the obligation secured at the earlier of” the 15-day notice period or any extension of it. [76] Under s. 66, any person entitled to notice has a right of redemption. If the foreclosure comes into effect without redemption, then under s. 65(6.1) “the secured party is entitled to the collateral free from all rights and interests in it of any person entitled to notification” who is in a position subordinate to the secured party. The words “otherwise deal” in s. 17.1(2) are not sufficiently precise to displace this important mechanism. [77] Fourth, an interpretation permitting foreclosure in this case would not be consistent with the purpose for which s 17.1(2) was enacted. The types of “otherwise dealing” must also be understood in light of the purposes for which s. 17.1(2) was introduced: to ease capital markets transactions, derivatives, and margin trading. As noted, the pledged shares in question are “investment property” and Canada Grace, as pledgee, had control within the definitions of the PPSA and STA . However, the Security Agreement between the appellants and respondents does not engage any of the complexities of the indirect holding system or the fast-moving dynamic of modern capital markets. Canada Grace is not in the same position as a broker or securities intermediary, for example, who must act quickly to liquidate rapidly depreciating accounts. The Security Agreement in this case more closely resembles a traditional pledge of physical collateral. This dispute between real estate investors for control of a development property is not the typical situation that s. 17.1(2) was designed to address. [78] Put simply, this is not a s. 17.1(2) case. Section 17.1(2) was intended to provide a special accommodation for certain capital markets participants. It should not be understood as a general exception to the foreclosure procedure in Part V of the PPSA . [79] I conclude that the words “or otherwise deal” in s. 17.1(2) do not contemplate foreclosure on investment property free of compliance with the foreclosure provisions of Part V of the PPSA . G. Was Canada Grace permitted to foreclose under Part V of the PPSA ? [80] The appellants point out that the application judge found Canada Grace had “failed to give the requisite notice” to foreclose under Part V of the PPSA : at para. 22. However, i t is not clear from the application judge’s reasons whether he found, as a matter of fact, that no notice was given or whether, as a matter of law, that the notice given was inadequate. [81] In my view, Canada Grace followed the PPSA procedure for accepting the shares in satisfaction of Atlas Brampton’s debt. Further, Atlas Brampton has not demonstrated its ability to redeem the shares by paying its debt. [82] The respondents produced at least five communications with the appellants, which they submit constituted adequate notice for the purpose of foreclosure under Part V of the PPSA : 1. On December 24, 2018, citing Romlex’s receivership, the respondents’ solicitor demanded that Romlex transfer its shares to Canada Grace no later than January 5, 2019; 2. On January 4, 2019, Mr. Grigoras signed a note confirming that Romlex would transfer its shares to Canada Grace on or before January 15, 2019; 3. On January 14, 2019, the respondents’ solicitor made email and letter demands for the transfer for the shares before January 25, 2019; 4. On February 12, 2019, in response to Romlex’s offer to repay the loan in installments, the respondents’ solicitor demanded either repayment of the full amount of the loan or transfer of the pledged shares by February 28, 2019; 5. On March 1, 2019, the solicitor for Atlas Springbank, Diana Young, sent a “Notice of Default” to Romlex, Mr. Grigoras and Atlas Brampton stating that the share transfer had been completed. [83] Faced with these communications, the application judge seems to have accepted that notice was given but was inadequate. This was an error stemming from a lack of clarity in the law in this area. In my view, the notice was adequate. [84] As I describe below, courts have taken inconsistent approaches to the notice requirement for foreclosure under the PPSA . Part V of the PPSA requires a foreclosing creditor to give notice of its “proposal” to accept collateral in satisfaction of a secured debt – in other words – to foreclose. The notice requirement set out in s. 65(2) of the PPSA states that the secured party “shall serve a notice of the proposal [to foreclose] on the persons mentioned in clauses 63(4)(a) to (d),” including the debtor, the owner of the collateral, and every person who has a security interest in the collateral. [85] However, it is important to note that while s. 65(2) incorporates by reference the list of recipients of notice mandated by s. 63(4), it does not import from s. 63(5) the detailed rules that set out the required contents of a notice of disposition of collateral (for example, by sale). The task of establishing the appropriate contents of a notice of foreclosure and, by extension, the adequacy of the notice, has fallen to the courts in the absence of express requirements in the PPSA . [86] Creditors should give adequate notice. A notice of intention to foreclose on collateral should ordinarily expressly cite the PPSA and include a) the amount of the secured obligation, b) a description of the collateral, c) expression of the clear intention to retain the collateral in satisfaction of the debt (and not as continuing security), and d) an indication that the parties receiving notice have 15 days to object. Such a notice would be difficult to attack on the ground of sufficiency. However, in line with the functional approach courts have been instructed to take, there will be cases in which the secured party’s intention to foreclose on the collateral is clear in the circumstances, even when one or more of these elements is absent, and the debtor is under no illusion about the consequences of failing to pay. In that context, it not unfair to expect the debtor to attempt to redeem the collateral within 15 days. [87] The law in Ontario was well-described by Lax J. in Casse v. Credifinance Securities Ltd (1999), 14 P.P.S.A.C. (2d) 352, [1999] O.J. No. 1908 (S.C.). In Casse , Lax J. reviewed the case law and held that the notice of intention to retain collateral must be expressed in clear and precise terms: at para. 7. However, she also held that “[t]he court must be able to conclude on all the evidence that the debtor knew that the purpose of the secured party in retaining the collateral was to satisfy the obligation secured” (emphasis added). She added: “If the Legislature had wished to specify the contents of the notice, it could have prescribed this as it did in s 63(5) in regard to disposal of collateral. In my opinion, the Legislature did not do so as it intended that the contents of the notice be flexible so as to accommodate a variety of commercial circumstances”: at para. 7. I agree. [88] In my view, Lax J.’s approach in Casse strikes the appropriate balance. There will be circumstances in which, on the basis of all the evidence, it is obvious that the debtor knows its creditor is foreclosing on the collateral in satisfaction of the secured obligation, even if the formal notice might be deficient in some sense. [89] I would agree that Canada Grace’s first four notices were individually inadequate. These notices generally provided minor extensions of time for Atlas Brampton to repay the loan in the face of what Canada Grace viewed as state of continuing default, but, taken together, they adequately signal Canada Grace’s intent to take ownership of the Atlas Springbank shares in accordance with the Security Agreement if the default is not remedied. [90] The March 1 Notice of Default would not have come as a surprise to the appellants. It was addressed to Romlex, Atlas Brampton, and Mr. Grigoras. It had as its subject: “Re: Notice of Default under Loan Agreement and Supplementary Agreement; Share Transfer Deemed upon Default; removal of the positions as Director and Officer.” The notice specifically referred to the Security Agreement (using the term “Supplementary Agreement” and “Loan Documents”) dated December 12, 2018 and reproduced the terms of the share pledge. [91] The March 1 Notice then identified Atlas Brampton’s failure to pay the loan as the operative event of default and culminated with an assertion that the pledged shares had been transferred so that Canada Grace was now the sole shareholder of Atlas Springbank: Pursuant to the Loan Documents, please be advised that the Pledged Shares have been transferred to Canada Grace who is now the sole shareholder of the Lender , and the Guarantor has been removed from the positions of director and officer(s) of the Lender. [92] The appellants rely on three cases, all of which I would distinguish. First, in Klein v. Lemore Investments Ltd. (1983), 2 P.P.S.A.C. 252, [1983] O.J. No. 204 (H.C.), White J. held that a notice of intention to retain collateral must express a “proposal” to retain the collateral, that is, it must express an intention “as to the future” instead of a “fait accompli”. In that case, a plaintiff real estate investor, Klein, pledged his shares in a real estate holding company to a fellow investor to secure a loan for roughly $60,000. Shortly after the plaintiff’s default, the secured party notified him that “our said client, [the secured party], is now the legal owner of twenty common shares in the above noted company.” White J. held that this was an improper notice of fait accompli and therefore “even to [the date of the judgment], having regard to the provisions of the Personal Property Security Act , Klein has a right to redeem his shares”: at para. 46. [93] I acknowledge that the situation in this case resembles somewhat the “fait accompli” that was fatal to the foreclosure notice in Lemore . Canada Grace did not expressly state its intention to retain the shares or offer Romlex an opportunity to redeem them; it simply asserted its sole ownership of Atlas Springbank. However, taking into account the context and the words of the communications from Canada Grace’s counsel as the default persisted, there is no doubt that the appellants were aware of the respondents’ intention to foreclose if the default was not remedied. Moreover, as the application judge noted, neither Romlex nor any of the Grigoras’ companies tendered fulfillment of the loan within 15 days after any of the notices, or at any time since. He noted that they did not put forward any reliable evidence of Atlas Brampton’s ability to pay. That failure persisted in this court. [94] The appellants also invoke Angelkovski v. Trans-Canada Foods Ltd. , [1986] 3 W.W.R. 723, [1986] M.J. No. 148 (Q.B.). In that case, the court held that notice must be given “in clear and precise terms” not only that the creditor intends to retain the collateral but that it intends to retain the collateral in satisfaction of the obligation secured : at para. 21. The defendants had taken possession of a restaurant under a chattel mortgage. Wright J. found that they had manifested an intention to retain it in satisfaction of the debt and operate it as a going concern. However, Wright J. rejected an argument that the plaintiff’s awareness of the defendant’s intention constituted constructive notice and held that the plaintiffs retained a right to redeem the property until there had been compliance with the notice requirements of the PPSA . Wright J. found that the debtor had not received the required notice and held open the right to redeem. I would simply respond as Lax J. did in Casse , at para. 13, in words that apply equally to Mr. Grigoras: He was given an opportunity to redeem the shares when the debt fell due…. He was under no misapprehension as to the legal effect of the pledge, nor of the consequences of failing to redeem. [95] Finally, the respondents cite Tureck et al. v. Hanston Investments Ltd. et al. (1986), 56 O.R. (2d) 393 (H.C.). As the application judge noted at para. 22, i n that case the pledge of shares reserved to the pledgor all the incidents of ownership and title in the pledged shares. The security agreement did not confer a right to foreclose. The court held that the only remedy available to the security holder was the statutory right under the PPSA but because the security holder had not given notice of an intention to retain the collateral in satisfaction of the secured obligation, the remedy was denied. By contrast, in this case the notice was adequate, as I have explained. H. A note on Harry Shields [96] As noted earlier, the appellants assert that the application judge misapplied the ruling in Harry Shields in finding that Canada Grace could rely entirely on the freestanding contractual right of foreclosure outside of the PPSA . Because I have found that the respondents’ notices were PPSA compliant, I need not address this issue but I will do so in light of the argument. [97] In my view, the ruling in Harry Shields has been superseded by later cases interpreting the PPSA such as Bank of Montreal v. Innovation Credit Union and i Trade Finance Inc. v. Bank of Montreal , and especially by the 2006 amendments to the PPSA and STA , all of which were discussed earlier. [98] The proper understanding and application of the ruling in Harry Shields was the focus of argument before the application judge and in the parties’ submissions on appeal. The plaintiff, Harry Shields Ltd., executed a demand debenture in favour of the Bank of Montreal. The debenture agreement gave the bank the right to appoint a receiver in the event of default. The bank also required Shields to pledge the debenture back to the bank under a separate pledge agreement. This was to ensure that the bank had possession of the debenture upon default. When Shields began to experience financial difficulties, the bank demanded payment and appointed a receiver under the debenture. Shields argued that the bank was not entitled to enforce the debenture directly because it held the debenture as a pledgee and was therefore required to resort to its remedies as a pledgee under the PPSA . Shields submitted that the bank might be required to sell the debenture, potentially to itself, before it could enforce it. [99] Lane J. defined the issue before him as whether, “where the parties have expressly agreed that the security holder has received the debenture both as a continuing collateral security enforceable directly and as a pledge, the security holder is confined to the remedies of a pledgee.” He reasoned: “I see nothing in the PPSA that compels this conclusion,” adding, “This view leads to the commercially sensible result intended by the parties: that the bank may enforce the debenture as owner without any ritual need to sell it to itself.” [100] Section 17.1, which was introduced after Harry Shields , simplifies the analysis. To the extent that most share pledges will give the secured party control over investment property (securities), secured parties can now rely on s. 17.1 instead of Harry Shields to “sell, transfer, use or otherwise deal with collateral”. The issue, in most cases, will be to determine whether the pledged instrument is “investment property” within the meaning of the PPSA . Whether a debenture of the kind used in Harry Shields could be considered “investment property” under the PPSA is a matter for another day. If it is not, Harry Shields may still provide some guidance. However, in most cases dealing with a pledge of shares or other securities, s. 17.1 sets out the framework. I. Disposition [101] Canada Grace complied adequately with the notice requirements under Part V of the PPSA . I would dismiss the appeal. Released: April 9, 2021 “P.L.” “P. Lauwers J.A.” “I agree. B.W. Miller J.A.” “I agree. I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Atlas (Brampton) Partnership v. Canada Grace Park Ltd., 2021 ONCA 334 DATE: 20210518 DOCKET: C68360 Lauwers, Miller and Nordheimer JJ.A. BETWEEN Atlas (Brampton) Limited Partnership, Romlex International Ltd. and Peter Grigoras Applicants (Appellants) and Canada Grace Park Ltd., Zing Ou Yang and Atlas Sprinkbank Developments Ltd. Respondents (Respondents) Jeffrey A. Kaufman, for the appellants Paul H. Starkman, for the respondents Heard: in writing On appeal from the judgment of Justice David Aston of the Superior Court of Justice, dated April 6, 2020, with reasons reported at 2020 ONSC 1861 COSTS ENDORSEMENT [1] On April 9, 2021, we released our decision in which we dismissed the appeal in this matter. We have now received and reviewed the parties’ submissions on costs. [2] The respondents ask for their costs of the appeal in the amount of $15,517.16. In addition, the respondents seek a cost award of $10,335.06 for certain motions that were brought in advance of the appeal but which did not proceed because the hearing of the appeal was set before those motions were ready to be heard. The appellants’ motion was for an interim injunction to restrain the respondents from disposing of the subject property, pending the disposition of this appeal. The respondents brought a motion for security for costs. [3] The appellants submit that there should be no costs of the appeal because success was divided. In the alternative, the appellants submit that there should be no award of costs because the issues raised were novel. In the further alternative, the appellants submit that the costs awarded should be reduced to reflect the divided result. On the issue of the motions brought, the appellants submit that there is no basis for costs to be awarded as neither motion proceeded. [4] We do not accept that there was divided success on the appeal. The respondents were wholly successful in upholding the application judge’s decision. The fact that the reasoning was different in this court than in the court below does not constitute divided success. This is not a case like Schill & Beninger Plumbing & Heating Ltd. v. Gallagher Estate (2001),140 O.A.C. 353 (C.A.), 6 C.P.C. (5th) 80, where no costs were awarded because the appellant was unsuccessful on her appeal but for one issue. [5] We also do not accept that the issues raised were “novel” as that concept is properly understood in the context of costs: Przyk v. Hamilton Retirement Group Ltd. (c.o.b. Court at Rushdale) , 2021 ONCA 267, at para. 35. [6] Finally, the fact that the motions were overtaken by the appeal hearing does not mean that there should not be any award of costs with respect to them. Costs would have been incurred by the respondents, both in bringing their motion and in responding to the appellants’ motion. However, the fact that the motions were never argued should result in a significantly reduced award of costs. [7] In our view, an award of costs to the respondents in the amount of $15,000, inclusive of disbursements and HST, is a fair and reasonable amount to fix for the costs of the appeal. An award of costs to the respondents in the amount of $5,000, inclusive of disbursements and HST, is a fair and reasonable amount to fix for the costs of the two motions. “P. Lauwers J.A.” “B. W. Miller J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: BMW Canada Inc. v. Autoport Limited, 2021 ONCA 42 DATE: 20210122 DOCKET: C67818 Feldman, van Rensburg and Thorburn JJ.A. BETWEEN BMW Canada Inc. Plaintiff (Respondent) and Autoport Limited Defendant (Appellant) Robert B. Bell, Emily Y. Fan, and Julia Boddy, for the appellant Eric Machum, Kyle Ereaux, Marc D. Isaacs and Michelle Staples for the respondent Heard: July 14, 2020 by video conference On appeal from an order of the Divisional Court (Justices Nancy L. Backhouse, Robert Charney and Lise G. Favreau), dated July 19, 2019, with reasons reported at 2019 ONSC 4299, 35 C.P.C. (8th) 141, setting aside the order of Justice Carole J. Brown of the Superior Court of Justice dated July 11, 2018, with reasons reported at 2018 ONSC 4208, 23 C.P.C. (8th) 23, and restoring the order of Master Janet E. Mills of the Superior Court of Justice dated December 11, 2017, and reported at 2017 ONSC 7379. van Rensburg J.A.: A. INTRODUCTION [1] At issue in this appeal is which of the parties is to bear the cost of the interim preservation of vehicles in an action where the respondent claims damages for their total loss, but wishes to destroy them, and the appellant seeks their preservation for the purpose of inspection. The appeal originated with a Master’s order in a motion under r. 45.01(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. This court must determine whether there was a palpable and overriding error in the Master’s order (which was restored by the Divisional Court) requiring the appellant to assume the cost to preserve the vehicles. [2] The parties are engaged in litigation in which the respondent BMW Canada Inc. (“BMW”) claims damages in respect of 2,966 vehicles it alleges were exposed to adverse weather conditions while being stored by the appellant, Autoport Limited (“Autoport”). After the action was commenced, and before Autoport had delivered its statement of defence, BMW informed Autoport of its intention to dispose of the vehicles. [3] BMW contends that, although it claims damages for the total loss of all of the vehicles, it does not need the vehicles to prove its claim. BMW asserts that its damages claim does not turn on proving actual harm to any of the vehicles, but on the fact that they were all exposed to adverse weather conditions and recalled because of safety concerns. BMW seeks to avoid the cost of the ongoing storage of the vehicles by turning over custody of the vehicles to Autoport, continuing to store the vehicles at Autoport’s expense, or destroying the vehicles. Autoport denies liability and, among other things, challenges BMW’s decision to recall the vehicles and its damages theory. Autoport sought an order for interim preservation of the vehicles, asserting that, until it received information from BMW about the defects BMW had identified and BMW’s own testing and inspection of the vehicles, it was unable to develop and implement a testing protocol that is appropriate and necessary for its defence of the action. [4] The Master held that BMW should not have to bear the financial burden of continuing to store the vehicles and ordered Autoport to elect within ten business days whether to take physical custody of the vehicles or to assume the financial responsibility for their storage and preservation, failing which BMW could deal with the vehicles as it deemed appropriate. The Appeal Judge reversed the Master’s order and required BMW to preserve the vehicles and to pay the ongoing storage costs, which it could recover from Autoport if successful at trial. On further appeal with leave, the Divisional Court restored the Master’s order and required Autoport to pay BMW the costs of storing the vehicles from ten business days after the date of the Master’s order to the date of its election. [5] Autoport appeals to this court, with leave. For the reasons that follow, I would allow the appeal. [6] Briefly, the courts below erred in attempting to articulate and apply a “one-size-fits-all” test for r. 45.01 motions. The situations in which such a motion may be brought are varied. The court must consider all relevant circumstances, including the nature of the property and its materiality to the issues in the litigation, as well as the purpose of the preservation order and its proposed duration. The court should seek to craft an order that is based on and responsive to the evidence before it, including evidence of the potential benefit and harm or prejudice to each party. Where, as here, the condition of the property is at issue in the action, and its preservation is sought for the purpose of inspection, the goal is to best ensure fairness in the litigation process. In making an interim preservation order, the court can impose conditions which might include provision for the financial obligations to be assumed by the parties, time limits, and in appropriate circumstances, a mechanism for further directions or review of the order. [7] In this case the Master erred when, in assessing the relative prejudice to the parties (which she characterized as “balance of convenience”), she considered only the cost to BMW of storing the vehicles. The Divisional Court, in restoring the Master’s order, erred in its articulation of the test, in deferring to the Master’s balance of convenience assessment, and in concluding that Autoport’s own experts could determine how many vehicles they needed to preserve and test “to meet [BMW’s] theory of liability.” This conclusion was contrary to Autoport’s uncontroverted evidence, and instead prematurely gave credence to the damages theory BMW advanced at the motion. [8] Taking into consideration the evidence on the motion and the factors that are relevant in this case to best ensure fairness in the litigation process, I conclude that an order for the interim preservation of the subject vehicles is warranted. I would allow the appeal and grant an order substantially in the terms of the order sought by Autoport in argument on this appeal. B. FACTS (1) BMW’s Claim [9] Autoport, a subsidiary of Canadian National Railway Company (“CN”), operates vehicle processing and transloading facilities at several locations across Canada, including in Eastern Passage, Halifax, Nova Scotia (the “Autoport facility”). BMW contracted with Autoport to provide vehicle handling and storage services for BMW vehicles imported to Canada from Germany. [10] BMW commenced its action by statement of claim dated February 1, 2017. BMW alleges that, as a result of Autoport’s negligence and breach of contract, 2,966 BMW and MINI-branded vehicles (the “BMW vehicles”) sustained damage due to exposure to excessive water and corrosive substances, including salt, while stored at the Autoport facility during the winter of 2015. BMW claims $175 million in damages, which includes the full value of the 2,966 vehicles that were stored by Autoport. [11] The statement of claim states that BMW seeks damages arising from its recall of the BMW vehicles. The statement of claim refers to its inspection of vehicles when they were in the possession of Autoport (at para. 19) and to inspections between May 2015 and July 2016 that revealed “latent and severe damage to the Vehicles” (at paras. 21, 22 and 24). BMW pleads that the resulting damage includes but is not limited to (a) MINI models: damage to the starter motor power supply cable connectors; (b) BMW models: damage to internal components within the steering rack; and (c) BMW and MINI models: damage to electrical wires and/or connectors (at para. 24). [12] BMW pleads that the vehicles were recalled beginning in July 2015 (at para. 25), and were to be returned to BMW for disposal (at para. 27). BMW claims damages that include its loss in respect of the vehicles, the costs of transportation and storage of the vehicles, the costs of investigating the source, nature, and extent of the damage, and disposal or destruction costs (at para. 40). (2) The Motion to Preserve the Vehicles [13] In November 2017 Autoport brought a motion under r. 45.01 for an interim preservation order, for particulars of certain pleadings in the statement of claim and inspection of documents (including particulars of the results of the inspections referred to in the statement of claim and production of the inspection reports), and for an order under r. 32.01 for a court-supervised inspection process. [14] The evidence on the motion consisted of the affidavit of Daniel Steedman, National Claims Manager at CN, sworn November 3, 2017. Mr. Steedman noted that BMW had alleged defects to all of the vehicles, but it had refused to provide documentation detailing the alleged defects and its own inspection results. In seeking interim preservation of the vehicles, Mr. Steedman referred to the request by Autoport’s counsel that BMW propose vehicles for inspection since it was the party claiming defects/damage and it already had detailed information from its own previous inspections, to BMW’s refusal to do so, and to BMW’s demand instead that Autoport propose the vehicles it required for inspection. Mr. Steedman noted that Autoport had conducted a preliminary inspection of 12 vehicles (which it had chosen as a sample without BMW’s input) that had not identified issues that assisted in responding to the defects claimed by BMW. He referred to the fact that destructive testing might be required, that Autoport would require different types of experts for subsequent inspections, and that Autoport did not have sufficient information to determine the type of expertise required. Autoport was seeking a preservation order because the vehicles would require further inspection. [15] The Steedman affidavit attached BMW’s responses to the demand for particulars and the request to inspect documents (which were mostly refusals on the basis that the particulars and documents were unnecessary for pleading and sought evidence), as well as some email exchanges between counsel indicating that BMW intended to dispose of the vehicles which it was continuing to store at an estimated cost of $10,000 per day. [16] BMW did not file evidence on the motion. In its factum before the Master (which was before this court on appeal), BMW acknowledged that the motion was to preserve evidence. It argued that it had no use for the vehicles and referred to the ongoing estimated cost of their storage. BMW set out the theory underlying its claim for the loss of all of the vehicles (what I refer to as “BMW’s damages theory”) at para. 11: BMW takes the position that all of the Vehicles were exposed to unacceptable conditions giving rise to serious risk of material damage, but that the extent of such damage to any particular Vehicle cannot viably be determined without extensive destructive testing. Thus, the recall was for all Vehicles. On this basis, BMW claims in respect of all Vehicles, on the basis of exposure, and without regard for which Vehicles actually incurred what damage. [17] BMW accepted that it would be up to the trial judge to determine which party should pay the storage costs after trial, but it claimed that the interim obligation to pay storage costs was a burden it should not continue to bear. BMW offered to relinquish custody of the vehicles to Autoport and asserted that alternatively, Autoport should assume the ongoing storage costs because it was the party that wanted the vehicles preserved. C. ORDERS BELOW (1) The Decision of the Master [18] In determining whether to grant an interim preservation order under r. 45.01, the Master referred to and purported to apply the three-part test set out in Taribo Holdings Ltd. v. Storage Access Technologies Inc. , [2002] O.J. No. 3886 (S.C.), at para. 5: (1) the asset sought to be preserved constitutes the very subject matter of the dispute; (2) there is a serious issue to be tried regarding the plaintiff’s claim to that asset; and (3) the balance of convenience favours granting the relief sought by the applicant or moving party. [19] The Master concluded that because Autoport was not making a claim to the vehicles, it could not meet the second prong of the Taribo test. Noting that BMW was willing to consent to the preservation order so long as Autoport took custody of the vehicles or assumed liability for the ongoing storage costs, the Master went on to consider appropriate terms for such an order. She observed that the underlying purpose of the preservation request by Autoport was to ensure the vehicles were available for inspection purposes at a later date, something she characterized as “without a doubt, a legitimate concern.” She noted that the fundamental question was who should bear the cost of the ongoing storage expense. She concluded that the balance of convenience favoured BMW, after referring to the daily storage costs while BMW was awaiting a pleading from Autoport and observing that it was “unreasonable and … manifestly unfair to require [BMW] to continue to bear the financial burden in circumstances where [Autoport] [wanted] preservation of the vehicles pending inspection and/or trial, but [was] unwilling to take possession of them”: at para. 26. [20] Accordingly, the Master made an order that provided for the interim preservation of the vehicles that were in BMW’s power, possession, and control, subject to terms that Autoport, within ten business days of December 11, 2017, was to elect whether to take physical custody of the vehicles or to assume the financial costs associated with their ongoing storage, failing which BMW could deal with the vehicles as it deemed appropriate. The Master’s order required BMW to provide a list of such vehicles to Autoport within 30 days. [21] The Master dismissed Autoport’s motion for further and better particulars and for inspection of certain documents. She ordered Autoport to deliver its statement of defence within ten days. She also ordered, on consent of BMW, that Autoport have the opportunity to inspect any or all of the vehicles, that any such inspection not delay the delivery of the statement of defence, and that, if the parties were unable to establish a mutually agreeable process to facilitate inspection, they could return to the court for further directions. [22] Autoport delivered its statement of defence on January 10, 2018. The statement of defence denies liability in contract and negligence and asserts that BMW did not suffer any loss or damage, that if BMW did suffer any loss or damage the damages are nominal, and that BMW has failed to mitigate its damages. It also alleges that most of the BMW vehicles were not exposed to severe winter weather conditions and none were exposed to corrosive salt, and it disputes the weather’s effect on the vehicles that were exposed. Finally, Autoport pleads that BMW’s recall of the vehicles was not reasonable and it contests BMW’s theory of damages. Autoport pleads that if any of the vehicles were defective, the defects had nothing to do with the damage alleged to have occurred at its storage facility. (2) The Decision of the Appeal Judge [23] Autoport appealed the Master’s order with respect to the denial of an interim preservation order, to a single judge of the Superior Court, Brown J. (the “Appeal Judge”). [24] The Appeal Judge held that the Master erred in her articulation of the test for an interim preservation order by misinterpreting Taribo to require a serious issue to be tried regarding the plaintiff’s claim to an asset . She referred to Autoport’s argument that the Taribo test was not applicable because there was no contest in this case as to ownership or entitlement to the property. The Appeal Judge nevertheless articulated a similar test, stating that, to obtain an order for interim preservation of property, the moving party must establish that: (1) the assets sought to be preserved constitute the subject matter of the dispute or a right to a specific fund or are relevant to an issue in the proceeding; (2) there is a serious issue to be tried regarding the plaintiff’s claim; and (3) the balance of convenience favours granting the relief sought by the applicant or moving party: at para. 48. [25] The Appeal Judge concluded that the Master’s order was premised on her erroneous application of Taribo and her conclusion that she could not grant the preservation order except on consent of BMW. Moreover, according to the Appeal Judge, the Master failed to take into account BMW’s prima facie obligation, as the party in possession, to preserve the vehicles as the subject matter of the litigation. The Appeal Judge noted that the vehicles that were the property of BMW and the subject matter of its action were alleged to have been damaged beyond being roadworthy by the negligence or breach of contract of Autoport and “[i]n such a case, it is paramount that the property be preserved, inter alia , for the benefit of further testing by both parties, or for any other testing which may be ordered by the Court, prior to trial”: at para. 55. [26] The Appeal Judge concluded that based on the evidence that was before her, which was also before the Master, the vehicles constituted the very subject matter of the dispute, there was a serious issue to be tried with respect to BMW’s claim concerning Autoport’s alleged negligence and/or breach of contract in storing BMW’s vehicles, and the balance of convenience favoured granting the relief sought by Autoport. The balance of convenience favoured granting the relief sought by Autoport because if the vehicles were not preserved, there would be no means for either party or the court to inspect and test the subject vehicles. The Appeal Judge was also satisfied that BMW, as the party in possession of the subject matter of the litigation and as the party with the obligation to preserve such property in the interest of justice and to ensure fairness of the trial process, ought to bear the cost of the preservation of the property, subject to BMW seeking recovery of such expenses if successful at trial. (3) The Decision of the Divisional Court [27] The Divisional Court allowed the appeal and restored the Master’s order. [28] Charney J., writing for a three-judge panel, agreed with the Appeal Judge that the Master had erred in her analysis when she said that Autoport failed to meet the second step of the Taribo test. He accepted that the Taribo test might apply to cases involving a dispute over ownership of an asset, but concluded that it was not appropriate in cases arising in other contexts to which r. 45.01 might apply. Instead, he proposed a test consisting of the following elements: (1) the property sought to be preserved is the property in question in a proceeding or relevant to an issue in the proceeding; (2) there is a serious issue to be tried with regard to the property; (3) the interim preservation or custody of the property is necessary to enable a party to advance or defend its claim; and (4) the balance of convenience favours granting the relief sought by the applicant or moving party. [29] The Divisional Court disagreed with the Appeal Judge that the Master’s error in interpreting Taribo had informed her analysis. While BMW had consented to the preservation order on the condition that Autoport take custody of the vehicles or assume liability for their ongoing storage costs, the Master had not simply acceded to the order sought by BMW, but had assessed the balance of convenience. The Master had provided clear and concise reasons in finding that the balance of convenience favoured BMW and had exercised her discretion to make the order on those conditions. The court concluded that the Appeal Judge erred in substituting her exercise of discretion for that of the Master, and in basing her balance of convenience analysis on the presumption that the party in possession has a prima facie obligation to preserve property that is the subject matter of litigation or evidence. [30] The Divisional Court rejected the premise that there is a prima facie obligation to preserve property that is the subject matter of litigation, which it characterized as “unsupported in law”: at para. 42. Among other things, the court distinguished cases relied on by Autoport before the Appeal Judge, which dealt with the obligation to preserve documents and property already the subject of a preservation order. The court noted that there is nothing in the Rules of Civil Procedure that imposes such an obligation, and posited that the recognition of a prima facie obligation to preserve evidence would effectively reverse the onus in r. 45.01, and could run counter to a plaintiff’s duty to mitigate its damages. While recognizing that a plaintiff who repaired or destroyed evidence without keeping some record of it would risk compromising its case or a finding of spoliation of evidence, the court concluded that these were risks that BMW was prepared – and was permitted – to take, given its theory of liability in this case. [31] The Divisional Court referred to the principle of proportionality set out in rr. 1.04(1.1) and 29.2. The court deferred to the Master’s balance of convenience analysis, concluding that she had impliedly considered that the cost of $10,000 per day to BMW was disproportionate to Autoport’s continued need to preserve and test the vehicles. The court concluded that the Master’s order met the principle of proportionality because it permitted the defendant, Autoport, in consultation with its own experts, to decide for itself how many automobiles it actually needed to preserve and test. Moreover, placing the financial burden on Autoport created an economic incentive to preserve and test only as many vehicles as it actually required for its defence. In contrast, placing the burden on BMW would give Autoport an incentive to delay its testing and exaggerate the number of vehicles needed to be preserved. The Divisional Court noted that, although Autoport argued that it could not know how many vehicles it needed to preserve and test without the results of BMW’s own inspections, the court was satisfied that Autoport’s own experts could determine how many vehicles they would need to preserve and test in order to meet BMW’s theory of liability, and that “[l]ogic and the principle of proportionality suggest[ed] that it [would] be substantially fewer than the 2,500 vehicles currently in storage”: at para. 81. [32] In the result, the Divisional Court set aside the Appeal Judge’s order and restored the Master’s order. Autoport was given ten business days in which to make the election referred to in the Master’s order with respect to the vehicles, and it was to pay to BMW the costs, plus interest, of storing the vehicles from December 28, 2017 to the date of its election or expiry of the time for the election. D. ISSUES [33] The parties identify the following issues on this appeal: · What is the test for making an order under r. 45.01 when the property to be preserved is evidence? What factors should be considered? What is the role of balance of convenience? Is there a prima facie obligation or presumption in favour of preservation of property that may be required for evidentiary purposes? · Did the Master err in refusing to make an interim order requiring BMW to preserve the subject vehicles until BMW discloses details of its inspections and the results of its destructive testing? · If the Master erred, and applying the proper test, should such an order be made? E. POSITIONS OF THE PARTIES [34] Autoport submits that the Divisional Court erred in restoring the order of the Master. It seeks an order requiring BMW to continue to preserve the remaining vehicles until BMW discloses information that would permit it to develop its own testing protocol and to identify the vehicles it wishes to inspect. In oral argument on this appeal Autoport confirmed that it would be sufficient for BMW to disclose the details of the destructive testing it has carried out. [1] [35] Autoport asserts that the Master applied the wrong test. First, she erred in applying a balance of convenience test when there is nothing in r. 45.01 that mandates such a test and in her balance of convenience analysis by focussing solely on the cost of storage. Second, the Master ought to have recognized that there is a prima facie obligation for a party to litigation to preserve evidence in its possession. The evidence may not have to be preserved until trial, but the other party must have a reasonable opportunity to inspect the evidence. Finally, Autoport argues that a consideration of the relevant circumstances and evidence in this case warranted an interim preservation order, to prevent the destruction of the vehicles until it has sufficient information – which is in the hands of BMW – to be able to develop and implement an appropriate testing protocol. [36] BMW asserts that the balance of convenience is a proper consideration, which in this case clearly favoured the conclusion that Autoport should take custody of the vehicles or pay their ongoing storage costs. Agreeing with the analysis of the Divisional Court, BMW contends that there is no obligation on a party to preserve evidence, which is inconsistent with its duty to mitigate damages. Moreover, it argues that such an obligation would be contrary to its right to deal with its own property as it sees fit. Even if there were such an obligation, it was discharged when BMW offered up the vehicles to Autoport for inspection. BMW contends that Autoport’s complaints about needing disclosure of BMW’s documents and test results are a collateral attack on those parts of the Master’s order that were not appealed. BMW asserts that there was no reversible error in the Master’s decision, or in the decision of the Divisional Court upholding that decision. F. DISCUSSION [37] In the discussion that follows I will begin by addressing some of the relevant principles. I will then identify the errors in the Master’s analysis and that of the Divisional Court. Finally, I will explain why, on a proper consideration of the evidence, and having regard to the relevant factors, the order sought by the appellant must be granted. (1) The Relevant Principles [38] The parties invited the court on this appeal to address the test for r. 45.01 motions, clarifying the role of balance of convenience and whether there is a presumption in favour of the preservation of evidence in a proceeding. As I will explain, it is inappropriate to prescribe a single test for r. 45.01 motions, including a Taribo -type test that focusses on “balance of convenience”, having regard to the variety of circumstances in which such motions can be brought. In a case such as the present, where the condition of property is at issue in the action and its preservation is sought for the purpose of inspection, the goal is to best ensure fairness in the litigation process. I will also explain why it is unnecessary to determine whether there is a presumption in all cases in favour of preserving evidence for litigation, but that r. 45.01 permits the court to address trial fairness concerns that would arise before evidence is destroyed. (a) What is the Appropriate Test for Interim Preservation of Property in this Case? [39] Rule 45.01 is available to parties as an interim measure during litigation. Rule 45.01(1) provides that the court may make an interim order for the custody or preservation of “any property in question in a proceeding or relevant to an issue in a proceeding”. The order is discretionary. Although the rule provides that the court “may authorize entry on or into any property in the possession of a party or of a person not a party”, and r. 45.01(2) permits the court to order the property to be sold in such manner and on such terms as are just, there are no criteria prescribed by the rule for the exercise of the court’s discretion under r. 45.01 and there is no limitation on the terms and conditions that can be imposed. [40] Rule 45.01 is available in a wide variety of circumstances in which interim preservation of property may be sought. The court, in considering whether to make such an order and on what terms, will take into consideration the evidence on the motion and make the order that best responds to the circumstances. The only precondition for preservation or custody is that the property is “in question in a proceeding or relevant to an issue in a proceeding”. As I will explain, it is inappropriate to attempt to prescribe and apply a single test (such as that set out in Taribo or a derivation of such test) to all r. 45.01 motions. [41] In some cases a r. 45.01 motion will seek to preserve the very property the plaintiff or applicant is pursuing in its litigation. In Taribo , for example, the litigation involved a dispute about shares that former employees of the respondent corporation had tendered in consideration for a reduction of their obligations under promissory notes. The shares were pledged and deposited with a third party. The moving parties’ motion for an interim preservation order sought what was essentially a form of injunctive relief – to prevent the corporate respondent from having the shares released from deposit to it and then converting or cancelling the shares. [42] The motion judge in Taribo articulated and applied a three-part test requiring that: (1) the assets sought to be preserved constitute the very subject matter of the dispute; (2) there is a serious issue to be tried regarding the plaintiff’s claim to that asset; and (3) the balance of convenience favours granting the relief sought by the applicant or moving party. She relied on two cases involving r. 45.02, which provides that where the right of a party to a specific fund is in question , the court may order the fund to be paid into court or otherwise secured on such terms as are just: News Canada Marketing Inc. v. TD Evergreen , [2000] O.J. No. 3705 (S.C.); Sun v. Ho (1998), 18 C.P.C. (4th) 363 (Ont. Gen. Div.). The Taribo test has been applied in other cases involving r. 45.01 where the moving party is seeking to preserve property that it seeks to recover in the litigation: see e.g., Progressive Moulded Products Ltd. v. Great American Group , 2007 CanLII 12205 (Ont. S.C.); Meade v. Nelson Resources Limited (2005), 14 B.L.R. (4th) 244 (Ont. S.C.). [43] I accept that the Taribo three-part test is appropriate where a r. 45.01 motion is brought to preserve property that the moving party is claiming in its litigation. In such cases, the moving party seeks to limit or constrain what the responding party may do with property that is in its possession, and to preserve the property for the benefit of its claim. Factors such as whether the property is unique and whether damages claimed in the alternative would be an adequate remedy are also relevant and can fit within the “balance of convenience” analysis: see Auto Enterprise Ltd. v. Oakville Motors Sales & Leasing Inc. , [1995] O.J. No. 716 (Gen. Div.), at paras. 10-14. And, where an interim preservation order would “tilt the scales in favour of a plaintiff on the basis of unproven allegations” the court must exercise caution before making such an order: see Stearns v. Scocchia (2002), 27 C.P.C. (5th) 339 (Ont. S.C.) involving a motion under r. 45.02. [44] While the Taribo test is appropriate for r. 45.01 motions where the moving party claims an interest in property, or for r. 45.02 motions where the claim is to a specific fund, it is not required to be applied or adapted for all motions for interim preservation of property. This is apparent from the wording of the rule itself. Rule 45.01(1) authorizes the court to make an order for entry into any property, including the property of third parties, for the purpose of an interim order under the rule. Likewise, r. 45.01(2) permits the court to order the sale of property. The test articulated in Taribo , even as modified by the Divisional Court, would be insufficient and would not account for the range of factors that would need to be considered where entry into property, third party interests, or sale of property arises in a r. 45.01 motion. [45] Similarly, a Taribo - type test focussing on “serious issue to be tried” and “balance of convenience” is neither necessary nor appropriate in a case like the present, where the r. 45.01 motion sought to preserve evidence to permit inspection. In my view, the overall consideration in such motions is to make an order that is consistent with a fair litigation process. In making or refusing the order, and in establishing terms, the court should have regard to the issues in dispute in the litigation, the relevance and materiality of the property as evidence, the purpose for which interim preservation is sought and its proposed duration (whether for the entirety of the proceeding or for an interim period to permit the evidence to be documented, inspected, tested, and the like), and the benefits and harm or prejudice to the interests of each party in the litigation. (b) Is There a Prima Facie Obligation to Preserve Evidence? [46] The parties joined issue in the courts below and in this appeal on whether there is a prima facie obligation in all cases to preserve property that is the subject matter of litigation, or more narrowly, to preserve evidence for trial. It is unnecessary to determine that issue in this appeal. First, any attempt to delineate the scope of such a rule would be met by a range of factors, which could be characterized as exceptions to or limitations on such a rule, such as considerations of the importance of the evidence to the proceeding, the perishability of the property, the feasibility of its preservation, and the like. Second, the determination of the relatively narrow issue on the r. 45.01 motion in this case and accordingly on appeal would not turn on any such obligation or presumption. Autoport seeks interim preservation of the vehicles for a limited time and purpose, and BMW characterizes the question as simply one of cost. [47] While it is unnecessary to determine whether there is a prima facie obligation to preserve evidence, and its scope, I do not agree with the Divisional Court’s unqualified rejection of the duty of litigants to preserve evidence, and BMW’s assertion in this court that parties must be free to deal with their property as they see fit. The principle advanced by BMW, articulated so broadly, would apply whether or not the property is evidence and whether or not its temporary preservation or pre-trial destruction would affect trial fairness. [48] The courts have long recognized the doctrine of spoliation of evidence: see McDougall v. Black & Decker Canada Inc. , 2008 ABCA 353, 302 D.L.R. (4th) 661 for a useful summary of the case law and principles. Underlying the doctrine is the trial fairness principle that parties to litigation are expected not to destroy important evidence, at least until the opposing party has had a fair opportunity to examine that evidence. The remedies are informed by considerations of trial fairness: the imposition at trial of a rebuttable presumption of fact that the missing evidence, had it been preserved, would have been unfavourable to the party who destroyed it, and other possible remedies to “level the playing field”, such as the exclusion of expert reports: see Gutbir v. University Health Network , 2010 ONSC 6752, at para. 13; McDougall , at paras. 18, 29; Stilwell v. World Kitchen Inc. , 2013 ONSC 3354, 47 C.P.C. (7th) 345, at para. 55; and Endean v. Canadian Red Cross Society (1998), 157 D.L.R. (4th) 465 (B.C.C.A.), at para. 32, leave to appeal granted but appeal discontinued, [1998] S.C.C.A. No. 260. The debate in the cases about whether there is a standalone tort of spoliation, and whether remedies are available for negligent spoliation (the cases are summarized at paras. 19 to 22 of McDougall ), does not undermine the animating principle: that the destruction of evidence can be harmful to trial fairness. [49] Rule 45.01 permits the court to address trial fairness concerns that would arise if property constituting evidence were to be destroyed prior to its destruction, and so avoid the kind of harm in the litigation process that spoliation remedies address. (2) Application of the Considerations of Trial Fairness to This Case [50] As I have already observed, it is not appropriate to apply the Taribo test, or a derivation of that test, to the motion that underlies this appeal. The focus here should have been on trial fairness – that is, on the parties’ ability to prosecute and defend the proceeding, and ought to have considered the relevant factors, including the nature of the property and its materiality to the issues in the litigation, as well as the purpose of the preservation order and its proposed duration. In considering the r. 45.01 motion the court ought to have attempted to craft an order that was based on and responsive to the evidence before it on the motion. [51] I agree with the appellant that the Master erred in concluding that she had to apply the Taribo test and that the balance of convenience in determining who should bear the cost of interim preservation of the vehicles favoured BMW. The Master considered only the cost of continued storage of the vehicles and Autoport’s delay in inspecting when she concluded that the balance of convenience clearly favoured BMW: at para. 26. The Master referred to the fact that BMW had repeatedly offered to relinquish possession or custody of the vehicles to Autoport, and she concluded that it was manifestly unfair to require BMW to continue to bear the financial burden of storage when Autoport wanted preservation of the vehicles, but was unwilling to take possession of them. In arriving at this conclusion the Master failed to consider Autoport’s evidence that it needed information from BMW about the defects it had identified and BMW’s own inspections and testing before Autoport could conduct the appropriate inspections. [52] The Divisional Court erred in its articulation of the applicable test, in deferring to the Master’s balance of convenience assessment, and in concluding, in the absence of evidence, that BMW’s storage cost was disproportionate to Autoport’s continued need to preserve and test the vehicles. In requiring Autoport to assume the cost of preservation of the vehicles, the Divisional Court determined, at para. 81, that Autoport, in consultation with its own experts, could decide for itself how many automobiles it actually needs to preserve and test in order to meet BMW’s theory of liability. This conclusion failed to give effect to Autoport’s evidence about the need to first receive information about the defects BMW had identified and the results of BMW’s own inspections and testing before embarking on its own destructive testing program, and instead gave credence to the damages theory BMW advanced at the motion. [53] It therefore falls to this court to determine, on a proper consideration of the context of the action, the evidence, and the relevant factors, the appropriate disposition of Autoport’s r. 45.01 motion. [54] The evidence consists of the Steedman affidavit, filed by Autoport. Although BMW cross-examined Mr. Steedman, it did not file a transcript of the cross‑examination, and it did not provide its own affidavit. Autoport sought to file fresh evidence in the appeal before this court, which BMW opposed and countered with a cross‑motion for fresh evidence if Autoport’s evidence were admitted. The fresh evidence, which is unnecessary for the determination of this appeal, consists of affidavits that speak to two issues: the fact that BMW had already disposed of 517 vehicles before the Master’s motion; and a procedural update to the effect that as of March 2020, documentary production had not yet taken place and the parties were continuing to negotiate a discovery plan. BMW’s disposition of 517 of the vehicles was known to the parties but not argued in the courts below; [2] as such, while the facts and circumstances surrounding a party’s destruction of evidence in another case might be relevant to a r. 45.01 motion, it would be inappropriate to consider such evidence in the determination of this appeal. The other fresh evidence simply confirms that the relevant status quo has continued – Autoport continues to require the vehicles to be preserved pending disclosure of information which it has not yet received. [55] In the discussion that follows, I will address the following factors: the issues in dispute in the action, and the relevance of the vehicles as evidence; the purpose and proposed duration of the interim preservation order; hardship or prejudice to the respondent; and the impact of a preservation order on the duty to mitigate damages. After considering these factors, I conclude that an order requiring BMW to continue to preserve the vehicles for the purpose of permitting Autoport to conduct an informed inspection of the vehicles was and is warranted, in the interests of trial fairness, and I address the terms of the order that are appropriate at this time. (a) The Issues in Dispute in the Action and the Vehicles as Evidence [56] BMW’s action is for damage to vehicles alleged to have been caused by Autoport’s negligence and breach of contract in storing the vehicles. BMW claims damages for the total loss of all of the vehicles that were stored by Autoport. All of the vehicles are alleged to have been affected to the extent that they cannot be repaired and have no resale or salvage value. [57] Autoport denies liability and asserts that the damages are excessive and that there has been a failure to mitigate. It also denies that most of the BMW vehicles were exposed to severe weather conditions, or to corrosive salt, and it disputes the weather’s effect on the vehicles that were exposed. Autoport pleads that BMW’s recall of the vehicles was not reasonable and that if any of the vehicles were defective, the defects had nothing to do with the damage alleged to have occurred at its storage facility. [58] In light of the issues in dispute in the litigation, the vehicles themselves are relevant as evidence. Damaged property itself may be in evidence; more often, the parties’ witnesses and their experts will testify about the extent of the damage, how it was caused, and the cost of repair or replacement. The parties may rely on photographs, inspection reports, test results, and the like to support their respective positions. [59] BMW does not dispute the fact that the vehicles are evidence, although BMW says that, because of its damages theory, it does not need the vehicles as evidence to support its claims. That conclusion however is based on information BMW already has in its possession. Only BMW knows at this stage what inspections and testing have already taken place (including destructive testing, according to BMW’s counsel), what defects it has already documented, and the basis for its conclusion that it is entitled to damages for the loss of all of the vehicles that were recalled for safety reasons, irrespective of whether a specific vehicle has sustained damage. I will return to BMW’s damages theory later in my discussion. At this point it is sufficient to note that BMW’s contention that it does not need the vehicles to support its damages theory does not detract from Autoport’s claim that it needs to inspect the vehicles as part of its defence, nor does it automatically shift the burden to Autoport to pay for their preservation. [60] It can safely be assumed that in the present case, but for the cost of continued storage, the vehicles would have been preserved, at least until both parties were satisfied that they had sufficiently documented and investigated the nature and extent of the damage, and that the vehicles themselves were not needed for trial. BMW preserved the vehicles for almost two years before it commenced its action, and it invited Autoport to complete its inspections when it gave notice of its intention to destroy the vehicles. BMW’s actions are consistent with the recognition that it could not simply destroy all of the vehicles because it had no further use for them, and that Autoport should have access to the vehicles for the purpose of inspection. (b) The Purpose and Proposed Duration of the Interim Preservation Order [61] Autoport seeks an interim preservation order for the purpose of its own informed inspection of the vehicles before they are destroyed. The r. 45.01 motion for interim preservation was accompanied by a r. 32.01 motion. [62] According to the Steedman affidavit, Autoport was notified of BMW’s intention to destroy the vehicles some eight months after the action was commenced on the basis of the estimated cost of continued storage of $10,000 per day. Mr. Steedman referred to BMW’s refusal to provide documentation detailing the alleged defects in the vehicles and its own inspection results, and that Autoport’s preliminary inspection of 12 vehicles (selected without BMW’s input) had not identified any issues of the nature claimed by BMW. Mr. Steedman referred to the fact that destructive testing might be required, that Autoport would require different types of experts for subsequent inspections, and that Autoport did not have sufficient information to determine the type of expertise required. [63] Essentially, Autoport’s evidence on the motion was that it could not conduct an informed inspection of the vehicles before it received information from BMW about the defects BMW had identified and the inspections it had already undertaken. [64] BMW did not provide any evidence to challenge this assertion. Rather, BMW argued, and continues to assert, that Autoport has unreasonably delayed in deciding what vehicles to inspect, and that Autoport has all the information it requires to be able to decide which vehicles to inspect to respond to BMW’s damages theory. BMW also argues that Autoport’s request for disclosure of information and documents before it determines which vehicles it needs to inspect is a collateral attack on the parts of the Master’s order that were not appealed. I consider each argument in turn. [65] First, BMW’s damages theory does not appear in BMW’s statement of claim, nor was it set out in an affidavit, where it could have been tested through cross‑examination. It is simply a theory that was advanced in argument in response to the interim preservation motion as an explanation for the recall of all of the vehicles, and for BMW’s position on the motion. [66] The assertion that was accepted by the Divisional Court at para. 81 of its reasons, that “Autoport’s own experts can determine how many vehicles they need to preserve and test in order to meet [BMW’s] theory of liability”, ignores Autoport’s evidence about needing to receive information from BMW about its inspection results. Moreover, it prematurely gives credence to BMW’s damages theory, a theory that is based on information in BMW’s possession and that may well change in the course of the proceedings. [67] Second, the uncontroverted evidence in this record supports the contention that Autoport cannot develop and implement an appropriate inspection and testing protocol for its defence without first obtaining certain information from BMW. Autoport’s continued request for such information is not, as BMW submits, a collateral attack on the Master’s dismissal of the motion for particulars and inspection of documents. The Master concluded only that the particulars and documents sought by Autoport were not required for the purpose of pleading , and Autoport complied with the order to deliver its statement of defence. The Master did not consider Autoport’s need for the information for the purpose of inspection of the vehicles, as set out in the Steedman affidavit, when she concluded that it was “manifestly unfair” for BMW to bear the financial burden of storing the vehicles when Autoport was “unwilling” to take possession of them. Indeed, as I have already observed, it was an error for the Master to fail to consider Autoport’s evidence to this effect. (c) Hardship or Prejudice to BMW [68] As BMW emphasized before this court, it never objected to the making of an interim preservation order; its concern was having to bear the ongoing cost to store the vehicles. [69] I accept that it may be inappropriate for a party to preserve property where the cost of doing so is disproportionate to the value of the evidence to the party seeking its preservation (an argument ultimately accepted by the Divisional Court). In this case however the evidence is that Autoport cannot proceed with an informed inspection of the vehicles until it has certain information that BMW has refused to provide until discovery, and BMW seeks recovery of its ongoing storage costs as part of its $175 million damages claim. [70] While this matter has proceeded on the assumption that BMW has been paying for the storage of the vehicles across Canada at an estimated cost of $10,000 per day, BMW filed no evidence about the actual cost of storage, the location of the vehicles, the terms of their storage, and the like. Nor did BMW provide evidence of hardship if it were to continue to pay the storage expenses until Autoport receives the information it requires in order to carry out its inspections and testing. Arguably, BMW might have avoided or limited the ongoing storage costs by developing a joint testing protocol, as Autoport had requested, or if it was unwilling to do so, by providing the information Autoport requested so that Autoport could proceed with its testing. In these circumstances and on this record, I am not persuaded that the ongoing cost of preserving the vehicles in the context of BMW’s $175 million damages claim would constitute hardship or prejudice to BMW that would reasonably justify shifting the interim cost of preservation to Autoport. (d) Impact of a Preservation Order on the Duty to Mitigate Damages [71] BMW contends that an order requiring its preservation of the vehicles would be inconsistent with its duty to mitigate damages, an argument that the Divisional Court accepted. I am not persuaded that BMW’s duty to mitigate damages would justify its destruction of the vehicles before Autoport has had the opportunity to develop its testing protocol. BMW is not seeking to mitigate its damages by repairing the vehicles, salvaging their parts, or selling them at discounted prices. Rather, it plans to dispose of the vehicles which it says (and Autoport denies) are all worthless. Only BMW’s claim for storage costs would be avoided if the vehicles were destroyed, but at the cost of the loss of the vehicles before Autoport has the opportunity to conduct an informed inspection. [72] In any event, Autoport has its own concerns about mitigation. Autoport is entitled to seek and to develop evidence through expert testing and appraisal that, contrary to BMW’s total loss theory of damages, some or all of the vehicles could have been repaired and sold or their parts salvaged. Destruction of the vehicles before informed inspections take place would impair Autoport’s ability to advance this type of failure to mitigate argument. [73] I am not persuaded that BMW’s duty to mitigate damages is a factor that would weigh in favour of Autoport’s assumption of the cost to preserve the vehicles. (3) Conclusion that BMW Must Bear the Costs of Interim Preservation [74] Considering all of the relevant factors in light of the central concern of fairness of the litigation process – the role of the vehicles in the context of the issues in the litigation, the need for interim preservation for Autoport’s informed inspection of the vehicles in its defence, BMW’s ability to claim recovery of the interim storage costs in its action, the lack of evidence of hardship or prejudice to BMW sufficient to shift the costs to Autoport, and its ability to avoid further costs, the Master ought to have made an order for the interim preservation of the vehicles until BMW provided the information Autoport required for its own inspection. To the extent that there was any disagreement about the information BMW provided, the parties could have returned to the Master for further directions. [75] In oral argument before this court, Autoport’s counsel was asked to specify the terms of the order Autoport is now seeking, at this stage in the litigation, if successful in the appeal. Autoport’s counsel proposed that on receipt of full disclosure of BMW’s destructive testing to date it would provide BMW with a methodology and sample size. BMW’s counsel made it clear that BMW is not interested in a joint inspection or testing protocol, or the ability to be present at or involved in any inspections conducted by Autoport. Autoport’s counsel then proposed an order that would require BMW to preserve the vehicles until a reasonable time following its receipt of the results of BMW’s destructive testing, at which time Autoport would pick up the vehicles it required, and BMW could then dispose of the remainder of the vehicles. [76] Accordingly, in allowing the appeal I would set aside the order of the Divisional Court and I would make the following order: (1) BMW shall continue to preserve the vehicles set out in Schedule “A” to the order of the Divisional Court dated July 19, 2019 until 90 days after it provides to Autoport the details of any and all destructive testing it has performed; (2) within that 90-day period, unless extended on motion, Autoport shall notify BMW of the vehicles it wishes to preserve for its own purposes and take custody of such vehicles; (3) after Autoport has taken custody of the vehicles it has identified BMW shall be at liberty to dispose of the remaining vehicles as it sees fit; (4) the cost of the interim preservation of the vehicles by BMW and subsequently by Autoport will remain an issue for trial; and (5) any further directions that may be required to give effect to this order may be obtained from a case management judge or Master in the Superior Court. G. CONCLUSION [77] For these reasons I would allow the appeal, set aside the order of the Divisional Court and make the order referred to in the preceding paragraph. If the parties are unable to agree on the costs of this appeal they may serve and file at coa.e-file@ontario.ca their costs submissions of up to three pages each, with Autoport providing its costs submissions within 30 days of the release of these reasons and BMW providing its submissions within 15 days thereafter. Released: January 22, 2021 (“K.F.”) “K. van Rensburg J.A.” “I agree. K. Feldman J.A.” “I agree. Thorburn J.A.” [1] BMW’s counsel, in the course of the proceedings below and in oral argument on this appeal, confirmed that it had destructively tested a number of vehicles. [2] See para. 33 of the Appeal Judge’s reasons, which refers to the fact that the schedule of vehicles provided by BMW pursuant to the Master’s order (which schedule was eventually attached to the order of the Divisional Court under appeal) listed 2,449 vehicles rather than 2,966 vehicles, and that BMW objected to any submissions about implications or inferences to be drawn about the 517 vehicles not listed. The Appeal Judge did not draw any such inferences, nor did the Divisional Court address the prior destruction or disposal of some of the vehicles by BMW.

COURT OF APPEAL FOR ONTARIO CITATION: Baylin Technologies Inc. v. Gelerman, 2021 ONCA 45 DATE: 20210126 DOCKET: C68066 Doherty, Nordheimer and Harvison Young JJ.A. BETWEEN Baylin Technologies Inc. and 2385796 Ontario Inc. Applicants (Appellants) and David Gelerman Respondent (Respondent) AND BETWEEN Spacebridge Inc., Advantech AMT Corp., Advantech Wireless Do Brasil Produtos de Telecomunicações Ltda., Advantech Wireless (EMEA) Ltds. and David Gelerman Applicants (Respondents) and Baylin Technologies Inc. , Advantech Wireless Technologies Inc. (formerly Baylin Technologies Holdings Canada Inc.), Advantech Wireless Technologies (USA) Inc. (formerly Baylin Technologies (USA) Inc.), Advantech Wireless Technologies (EMEA) Limited (formerly Baylin Technologies (EMEA) Limited), 2385796 Ontario Inc. , Jeffrey Royer, Randy Dewey, Janice Davis, Barry Reiter, Donald Simmonds, Harold Wolkin, David Saska and Davies Ward Philips & Vineberg LLP Respondents ( Appellants ) Steve J. Tenai and Miranda Spence, for the appellants Jason Wadden and Jesse-Ross Cohen, for the respondents Linda Plumpton, James Gotowiec and Adrienne Oake for the intervener, Toronto Stock Exchange Susan Kushneryk and Eric Morgan for the intervener, The Canadian Coalition for Good Governance Heard: December 17, 2020 by video conference On appeal from the orders of Justice Laurence A. Pattillo of the Superior Court of Justice dated January 23, 2020, with reasons reported at 2020 ONSC 404. Nordheimer J.A.: A. Overview [1] The appellants, Baylin Technologies Inc. and 2385796 Ontario Inc. ("2385796"), brought an application before the Ontario Superior Court of Justice (Commercial List). They sought an order requiring David Gelerman to tender his resignation as a director of Baylin, as required under Baylin’s majority voting policy, along with other declaratory relief. [2] Prior to the appellant’s application, David Gelerman and the corporate respondents had brought an application seeking a declaration that Gelerman was not required to tender his resignation because of alleged oppressive conduct by the appellants and others, and for an order directing the release of certain shares held by Spacebridge’s lawyers, as trustees, for consulting fees pursuant to a consulting agreement between Baylin and Spacebridge (the “Consulting Agreement”). [3] The applications were heard together on October 29, 2019 and decided in a single set of reasons released on January 23, 2020. [1] B. Background (1) The Asset Purchase Agreement [4] Pursuant to an asset purchase agreement in January 2018 (the “APA”), Baylin acquired from Spacebridge and its affiliates the undertaking and assets of Spacebridge’s satellite and radio frequency, terrestrial microwave and antenna equipment and services business. Gelerman was the founder of Spacebridge and its President and CEO. [5] Negotiations over the APA lasted several months following the signing of a non-binding indication of interest between Baylin and Spacebridge at the end of August 2017. As part of the indication of interest, a support letter was delivered by 2385796 (Baylin’s majority shareholder) to Baylin in early August 2017 stating that it would be prepared to support the proposed transaction between Baylin and Spacebridge (formerly called Advantech Wireless Inc.). The indication of interest provided for Gelerman to serve in a senior consulting role reporting directly to Baylin’s President and CEO. [6] The APA was eventually negotiated and signed on January 17, 2018. Paragraph 4.16 of the APA is of particular relevance to the issues raised. It reads, in part: Gelerman Director Nomination (a) Subject to Gelerman meeting, at all applicable times, the requirements of the TSX and Applicable Laws, Baylin shall: (i) following the Closing Date request of its board of directors to appoint Gelerman to such board of directors, to hold such position until the first annual general meeting of holders of Baylin Common Shares that occurs following the Closing; and (ii) at each of the 2018 and 2019 annual general meetings of holders of Baylin Common Shares, Baylin shall nominate Gelerman for election to its board of directors and shall honestly and in good faith, subject to Applicable Law, assist Gelerman to obtain the votes necessary to secure membership on the board of directors of Baylin (2) The Consulting Agreement [7] It was a condition to the closing of the APA that Baylin enter into the Consulting Agreement with Spacebridge. The Consulting Agreement provided for consulting services to be provided by David Gelerman, in his capacity as Chief Technology Officer, and Stella Gelerman, in her capacity as Special Advisor, to Baylin or its affiliates for a term ending on December 31, 2019. The Consulting Agreement provided for annual payments of $1.25 million for an aggregate fee over the two-year term of the Consulting Agreement of $2.5 million, paid equally in cash and Baylin shares. [8] More specifically, the Consulting Agreement provided for the payment of the consulting fees as follows: Base Fee . Baylin shall pay to the Consultant a fee of $1,250,000 (Canadian Dollars) per annum for the duration of the Term (the “ Fee ”) in respect of the Consulting Services. The Fee shall be paid as follows: (a) by delivery to, or to the direction of, the Consultant on the final business day of each March, June, September and December that occurs in the 24 month period following the Effective Date, the sum of $156,250; and (b) by delivery to Davies Ward Phillips & Vineberg LLP (“ DWPV ”), as trustee for the Consultant, on the Effective Date, such number of common shares in the capital of Baylin (the “ Baylin Common Shares ”) as is equal to: (1) one million two hundred and fifty thousand dollars ($1,250,000); divided by, (2) the volume weighted average price of the Baylin Common Shares traded on the facilities of the Toronto Stock Exchange during the five (5) trading day period ending on the last trading day prior to the Effective Date, which shares shall be held by DWPV and released to the Consultant in accordance with Section 3.2. [9] Section 3.2 of the Consulting Agreement provided as follows: Restricted Shares . On the date hereof, Baylin shall deliver the Baylin Common Shares referred to in Section 3.1(b) in eight (8) equal parts, each part to be issued on a separate share certificate. The eight (8) share certificates shall be released by DWPV and delivered to the Consultant, as to one certificate in each instance, at each of the Effective Date and thereafter on the final business day of each March, June, September and December that occurs in the 20 month period following the Effective Date. (3) Majority Voting Policy [10] Baylin was listed on the Toronto Stock Exchange (“TSX”). The TSX maintains rules for listed companies, which are set out in the TSX Company Manual (“TSX Manual”). Issuers such as Baylin must comply with the TSX Manual in order to maintain their listing on the TSX. [11] The TSX first proposed adding a majority voting requirement to the TSX Manual in September 2011. The effect of a majority voting requirement is that it requires a person, who has been elected as a director, to nonetheless submit his/her resignation, if s/he does not receive 50%+1 of the total votes cast. As further explained below, this requirement was necessary to avoid the effects of the plurality voting requirements that are currently contained in corporate statutes, such as the Business Corporations Act , R.S.O. 1990, c. B.16 (“ OBCA ”). [12] The stated rationale for the addition of a majority voting requirement was, in part, that “majority voting policies support good governance by providing a meaningful way for security holders to hold directors accountable and remove underperforming or unqualified directors.” [2] At the time, the TSX did not propose to make majority voting mandatory. In October 2012, the TSX issued a Notice of Approval for the amendments. The amendments became effective on December 31, 2012. [13] Subsequently, the TSX decided that it would make the majority voting requirement mandatory for issuers that did not have a majority shareholder. The TSX issued a Notice of Approval for the mandatory Majority Voting Requirement in February 2014. The amendment became effective on June 30, 2014. Section 461.3 of the TSX Manual requires every issuer to adopt a majority voting policy that provides, in part: a) any director must immediately tender his or her resignation to the board of directors if he or she is not elected by at least a majority (50% +1 vote) of the votes cast with respect to his or her election; b) the board shall determine whether or not to accept the resignation within 90 days after the date of the relevant security holders’ meeting. The board shall accept the resignation absent exceptional circumstances; [14] The exception for “exceptional circumstances” is an issue in this appeal. As part of its process for implementing mandatory majority voting, the TSX had attempted to provide some guidance on what would constitute exceptional circumstances. For example, the TSX Staff noted in a 2017 Staff Notice that they would contact an issuer to discuss the exceptional circumstances that are present when a board determines to reject a director’s resignation. The TSX said that each situation would be reviewed on a case-by-case basis, taking into account the unique factors applicable to each issuer. The 2017 Staff Notice stated that exceptional circumstances would be expected to meet a high threshold. It provided some examples of what might meet that threshold. One of the examples was that an issuer “would not be compliant with … commercial agreements regarding the composition of the Board as a result of accepting the Subject Director’s resignation.” However, the 2017 Staff Notice did not require issuers to incorporate any or all of the listed circumstances into their own policies. [15] As a result of another acquisition made by Baylin in June 2018, which was after the Spacebridge acquisition, Baylin ceased to have a majority shareholder. It was therefore required to adopt a Majority Voting Policy in order to comply with the TSX rules. [16] Baylin’s majority voting policy was unanimously approved by Baylin’s Board of Directors in mid-March 2019. David Gelerman was a director of Baylin and voted in favour of the policy. Baylin’s majority voting policy states that, “[i]f a director receives more ‘withheld’ votes than ‘for’ votes at any shareholders meeting where shareholders vote on the uncontested election of directors, the director must immediately submit to the Board his or her resignation, to take effect upon acceptance by the Board.” [17] In terms of exceptional circumstances for not accepting a director’s resignation, the Baylin majority voting policy said: In determining whether to accept the resignation, the Board will consider various matters including, but limited to, if: (I) acceptance of the resignation would result In the Company not being compliant with its Articles, By-laws, and securities law requirements regarding the composition of the Board; (II) the resigning director is a key member of an established, active special committee which has a defined term or mandate and accepting the resignation of such director would jeopardize the achievement of the special committee's mandate; or (III) majority voting was used for a purpose inconsistent with the policy objectives of the Toronto Stock Exchange. [18] It will be noted that the Baylin majority voting policy did not expressly include non-compliance with commercial agreements regarding the composition of the Board as an exception to its policy. (4) The 2019 Annual General Meeting [19] As time passed after the completion of the APA, difficulties arose between Gelerman and Jeffrey Royer. Royer was the Chairman of the Board of Baylin. He was also the sole director and officer of the appellant, 2385796, Baylin's largest shareholder. [20] On March 23, 2019, as part of its obligation to assist Gelerman to continue as a director in accordance with the APA, as noted above, Baylin’s Lead Director and Chair of its Corporate Governance and Compensation Committee, wrote to Gelerman on behalf of that committee. The letter notified Gelerman that pursuant to the APA, he would be nominated for election at the 2019 Annual General Meeting (scheduled for May 14, 2019). However, the letter further notified Gelerman that 2385796 did not intend to vote in favour of his re-election and, without that support, it was not expected that Gelerman would be re-elected. The letter further suggested that Gelerman “may choose to contact 2385796 Ontario Inc. (via Jeff Royer) to discuss that shareholder’s concerns with your continuing as a director for the ensuing year.” Gelerman says that he never received the letter that was sent by email. As a consequence, he did not respond to the letter. [21] Gelerman did not make any effort to contact Royer, or any other director, to discuss the election or ask for any assistance. Royer’s evidence was that, given that lack of communication, he decided that 2385796 would not vote in favour of Gelerman’s re-election as a director of Baylin. [22] At the Annual General Meeting, Gelerman only received approximately 29% of the eligible votes for his re-election. 2385796, and other shareholders, withheld their votes relative to Gelerman’s election. Gelerman did not submit his resignation as required by Baylin’s majority voting policy. Consequently, Baylin’s Board never considered whether it would accept the resignation. [23] Instead, the two applications I mentioned at the outset were commenced. (5) The claim for set-off [24] An additional issue arises. Pursuant to section 8.1 of the APA, Spacebridge agreed to indemnify Baylin and its affiliates from all damages arising from any incorrect representation in the APA. Indemnity claims seeking damages in the millions of dollars have been made by Baylin against Spacebridge. Under section 8.8 of the APA, Baylin may set-off any indemnification amount to which it may be entitled under the APA against "amounts otherwise payable” by Baylin to Spacebridge. [25] On May 8, 2019, Baylin wrote to Spacebridge and gave notice pursuant to section 8.8 of the APA of its intention to exercise the right of set-off for certain indemnity claims against any amounts payable under the Consulting Agreement. Those indemnity claims are the subject of separate proceedings between the parties. C. THE DECISION BELOW [26] The application judge found that Baylin’s majority voting policy did not comply with the TSX majority voting requirement. He also found that the policy had been introduced for reasons other than compliance with the TSX requirement. The application judge found that the Baylin majority voting policy did not comply with the TSX majority voting policy in three respects. He said, at para. 39: The Policy is not, however, the Majority Voting Requirement required by the TSX or even "substantially" the Majority Voting Requirement required by the TSX. It differs in three material respects: 1) The TSX Requirement refers to the majority of votes cast at the meeting whereas the Policy is not based on votes cast but rather on "withheld votes"; 2) the TSX Requirement does not limit what may constitute "Exceptional Circumstances" which the board must find to not accept the resignation and allow the director to continue whereas the Policy restricts the Board's determination of Exceptional Circumstances to consideration of three circumstances only; and 3) as will be seen, in restricting the Exceptional Circumstances to the three enumerated circumstances, the Policy excludes the TSX's specific example of exceptional circumstances concerning "commercial agreements regarding the composition of the Board". [27] The application judge then considered the oppression remedy under s. 248 of the OBCA . He found that the evidence established that, among other things, both Spacebridge and Gelerman had an expectation arising from the background leading up to the APA, and the terms of the APA itself, that Gelerman would be a director of Baylin for the two-year period. The application judge also found that they had a reasonable expectation that Baylin would act honestly and in good faith in assisting Gelerman to be elected to the Baylin Board for the two years in issue. [28] The application judge went on to find that Baylin's actions in presenting the majority voting policy to the Board at the March 13, 2019 meeting, on the basis that the Policy was required by the TSX, was not accurate. Indeed, he found that it was “misleading and false”. The application judge also found it to be a breach of Gelerman's reasonable expectations as a director and that it was oppressive, unfairly prejudicial to, and disregarded Gelerman’s role as a director. The application judge also found that the majority voting policy “was very clearly not the TSX's Majority Voting Requirement”. [29] The application judge went further and concluded that he was satisfied that the reason the majority voting policy was drafted in the manner it was, was to enable the removal of Gelerman as a director of Baylin. [30] As a consequence of his conclusions, the application judge set aside the majority voting policy. [31] On the issue of set-off, the application judge found that the indemnification clause in section 8.8 of the APA applied to any “amounts otherwise payable" by Baylin to the Spacebridge Group arising from the transaction, including amounts payable under the Consulting Agreement. [32] However, the application judge also found that, in respect of the share portion of the consulting fee under the Consulting Agreement, once the shares were delivered to Davies Ward Philips & Vineberg (“DWPV”) in trust, that portion of the fee was paid by Baylin. Since the shares “had been paid”, in the view of the application judge, they were not amounts otherwise payable and, thus, were not amounts subject to set-off. D. Analysis (1) Mootness [33] Before turning to the issues raised, I must address the submission of Gelerman that this matter is moot because he remained a director of Baylin for the time he claimed he was entitled to while these proceedings were underway. [34] I do not accept that the issues raised in this case are now moot because of that passage of time. The application judge did not simply determine that Gelerman was entitled to remain as a director of Baylin. He also held that Baylin’s majority voting policy was flawed, and he set it aside. That latter determination remains binding on Baylin. Unless reversed, Baylin will have to design a new majority voting policy, because the rules of the TSX require it to have such a policy. Baylin’s rights are therefore still affected by the decision: Mental Health Centre Penetanguishene v. Ontario , 2010 ONCA 197, 260 O.A.C. 125, at para. 35. [35] In addition, there is a recognized exception to the strict application of the mootness principle in cases which raise an issue of public importance regarding which a resolution is in the public interest: Borowski v. Canada (Attorney General) , [1989] 1 S.C.R. 342, at p. 361. The submissions of the interveners in this case satisfy me that there are matters of public importance involved in this case and that their resolution will be in the public interest as they will assist corporate governance of public companies in Ontario generally. (2) The Majority Voting Policy [36] The parties are agreed on one point and that is that the application judge erred in his conclusion regarding the effect of votes withheld in the election of a director under a majority voting policy. The application judge held that votes withheld are not votes cast and therefore do not count in the election results. In reaching this conclusion, the application judge misunderstood the TSX policy. The TSX policy is clear that votes withheld are votes against a director. To conclude otherwise would mean that any director who received even a single vote in favour would have achieved more than 50%+1 of the votes cast. Indeed, in the single favourable vote scenario, the director would have received 100% of the votes cast, if the application judge’s interpretation were to be accepted. [37] The approach taken by the TSX, of considering withheld votes as votes against for the purposes of a majority voting policy, was necessary to avoid the effects of the plurality voting requirements that are currently contained in statutes, such as the OBCA , that govern the election of directors. Under plurality voting, shareholders must either vote for a director or they must withhold their vote. [3] A withheld vote has no effect under the statute. It is as if the vote was not cast. Consequently, under the prevailing statute, a director is elected if only one vote is cast for that director, regardless of the number of withheld votes. [38] The purpose behind adopting a majority voting policy for publicly traded companies was to provide “a meaningful way for security holders to hold directors accountable and remove underperforming or unqualified directors”. [4] In order to accomplish that purpose, the majority voting policy was designed to consider votes withheld as votes against a director. If that then resulted in the director receiving less than 50%+1 of the votes cast, the policy required that director, although technically elected under the statute, to tender his/her resignation. The Board of Directors was then required to accept that resignation, absent exceptional circumstances. [39] The application judge’s misunderstanding of this central aspect of the TSX majority voting policy infected his approach to, and view of, the Baylin majority voting policy. That error led to another. The application judge went on to conclude that the Baylin voting majority policy also did not comply with the TSX policy because the Baylin policy stipulated only three situations that would constitute exceptional circumstances. [40] Again, the application judge misunderstood the requirements of the TSX majority voting policy. The TSX policy provides that, in a situation where a director is required to tender his resignation, that resignation must be accepted by the Board of Directors, absent exceptional circumstances. The TSX policy does not stipulate what will, or will not, constitute exceptional circumstances. Rather, the TSX policy left the determination of exceptional circumstances to be dealt with on a case-by-case basis. Indeed, it is the practice of the TSX to review any corporation’s invocation of exceptional circumstances as justifying its refusal to accept a director’s resignation. [41] However, in order to assist its members in applying the TSX majority voting policy, the TSX provided some examples of circumstances that might constitute exceptional circumstances, and thus justify the refusal by a Board of Directors to accept a director’s resignation. The 2017 TSX Staff Notice said, on this subject: Examples of exceptional circumstances may include: • the issuer would not be compliant with corporate or securities law requirements, applicable regulations or commercial agreements regarding the composition of the Board as a result of accepting the Subject Director's resignation; • the Subject Director is a key member of an established, active Special Committee which has a defined term or mandate (such as a strategic review) and accepting the resignation of such Subject Director would jeopardize the achievement of the Special Committee's mandate; or • majority voting was used for a purpose inconsistent with the policy objectives of the Majority Voting Requirement. [42] Two things are clear from this Notice. One is that there is no requirement for a majority voting policy to delineate what will, or will not, constitute exceptional circumstances. The other is that the TSX was providing “examples” of circumstances that “may” constitute exceptional circumstances. Whether those circumstances, or any others, would in fact constitute exceptional circumstances was to be determined on the particular facts of any given case. [43] All of that said, there is nothing in the TSX policy that precludes a corporation from stipulating, in advance, what it will consider as exceptional circumstances. Indeed, the intervener, The Canadian Coalition for Good Governance , submits that the narrower the exceptional circumstances exception is made in any given policy, the more it promotes the purpose of such policies, which is to hold directors accountable to shareholders. Whether any stipulated exceptional circumstance would be accepted by the TSX will, of course, have to await a review at the time that the exceptional circumstance is invoked. However, advanced warning of what a corporation would accept as exceptional circumstances will benefit individual directors in knowing where they stand in terms of compliance with the policy. [44] The application judge erred in finding that Baylin’s adoption of specified exceptional circumstances in some fashion constituted a violation of, or unacceptable departure from, the TSX majority voting policy. In fact, Baylin’s adoption of those specified exceptional circumstances advanced the purpose that underlies majority voting policies. It also, as I have said, gave fair notice to directors as to what Baylin would consider exceptional circumstances should the issue arise. [45] The application judge also found that the Baylin majority voting policy did not meet the requirements of the TSX majority voting policy because the Baylin policy did not contain the exception regarding “commercial agreements regarding the composition of the Board”. This critique of the Baylin policy suffers from the same error that I just set out regarding the application judge’s approach to the exceptional circumstances category generally. Baylin was not required by the TSX voting majority policy to include commercial agreements as an exceptional circumstance. [46] It follows from all of the above that the application judge erred in concluding that the Baylin majority voting policy did not comply with the TSX policy on majority voting. The opposite conclusion, that the Baylin policy was compliant, is the only one that can be properly drawn from the record. (3) Oppression [47] The application judge moved from his conclusions regarding the Baylin majority voting policy to the issue of oppression. He concluded that both Gelerman and Spacebridge had a reasonable expectation that Gelerman would be a director for the two-year period of the earn-out. He then concluded that Baylin’s actions in adopting the majority voting policy were “misleading and false” and that the policy was drafted for the purpose of removing Gelerman as a director. [48] The application judge’s finding regarding the reasonable expectations of Gelerman and Spacebridge are findings of fact that are entitled to deference from this court. They may only be interfered with if a palpable and overriding error is demonstrated. [49] In my view, Baylin has demonstrated such an error. I begin with the fact that reasonable expectations are to be viewed on an objective, not subjective, basis. As the Supreme Court of Canada said in BCE Inc. v. 1976 Debentureholders , 2008 SCC 69, [2008] 3 S.C.R. 560, at para. 62: As denoted by "reasonable", the concept of reasonable expectations is objective and contextual. The actual expectation of a particular stakeholder is not conclusive. In the context of whether it would be "just and equitable" to grant a remedy, the question is whether the expectation is reasonable having regard to the facts of the specific case, the relationships at issue, and the entire context, including the fact that there may be conflicting claims and expectations. [50] I do not quarrel with the finding that Gelerman might himself have believed that he would remain a director for the two-year period. However, that expectation was not objectively reasonable, at least not by the time of the 2019 Annual General Meeting. I say that for two main reasons. [51] First, Gelerman knew that Royer had control over 2385796, which was the majority shareholder of Baylin at the time that he entered into the APA. Gelerman did not have any undertaking from Royer, or from 2385796, to support him as a director. As observed in BCE Inc. , at para. 78, one of the factors to be considered in determining whether an expectation is objectively reasonable is “whether the claimant could have taken steps to protect itself against the prejudice it claims to have suffered”. Gelerman could have negotiated for a commitment from Baylin, and its majority shareholder, as part of the APA, that he would be a director for the two-year period, but he did not. In fact, such a commitment was requested during the negotiation of the APA but was expressly rejected. All that Gelerman obtained, as part of the APA, was an undertaking by Baylin that it would nominate Gelerman for election to its shareholders and would honestly and in good faith assist Gelerman to obtain the votes necessary for election. I would add that the APA was negotiated between the parties, all of whom were represented by experienced lawyers. As a general proposition, it will be difficult for a party to advance that it had a reasonable expectation regarding a particular result that is above and beyond that for which the party negotiated: Casurina Limited Partnership v. Rio Algom Ltd. (2004), 181 O.A.C. 19, at para. 26. [52] With respect to the latter promise of good faith, Royer had obligations in his position as an officer of the majority shareholder that were separate and apart from his obligations as Chairman of Baylin. Indeed, it would have been improper for Royer to act in a manner contrary to the interests of the majority shareholder in order to further the interests of Baylin. Gelerman knew, or should have known, that Royer was obliged to act as he thought best in exercising his duties as the sole officer and director of the majority shareholder. [53] Second, Gelerman had been warned by Baylin that he did not have the support of Royer for election at the 2019 Annual General Meeting. He was urged to seek out Royer and have a discussion with him about the problems between them before the vote was held. Gelerman made no effort to do so. While Gelerman maintains that he did not receive the letter which contained this warning, it is difficult to foist any blame onto Baylin for that failure. I would add that it is somewhat telling, on this point, that there was a follow-up letter sent by Baylin on this issue that Gelerman also did not respond to. [54] In any event, it is hard to believe that, even without this warning, Gelerman would have been unaware of Royer’s attitude towards him, and the problem that it posed for his position as a director, given what had transpired at different Board meetings prior to the 2019 Annual General Meeting, much of which is set out in Gelerman’s own affidavit. I note that the application judge found as a fact that Royer “had a general dislike for Gelerman’s approach to being a director”. The potential impact of that fact, in terms of him continuing as a director, could not have been lost on Gelerman. [55] The application judge moved from his findings about reasonable expectations to his conclusion that Baylin acted oppressively against Spacebridge and Gelerman. However, his oppression conclusion appears to be based entirely on the adoption of the majority voting policy. The errors that the application judge made respecting the majority voting policy, as I have detailed above, clearly drove his conclusion regarding what he saw as oppressive conduct. [56] On the subject of oppressive conduct, and the majority voting policy, the application judge made certain additional findings that are problematic. One is that the application judge drew an adverse inference against Baylin because it did not reveal the legal advice that it had received regarding the presentation and passage of the majority voting policy. The legal advice that Baylin received was clearly privileged, as the application judge acknowledged. It is difficult to rationalize that fact with the criticism that the application judge leveled against Baylin, on more than one occasion in his reasons, for its failure to reveal legal advice that it was entitled to keep privileged. There is also no evidence that Gelerman ever asked what legal advice had been received, at the time that the matter came before the Board of Directors. Indeed, there is no evidence that Gelerman asked any questions about the background to the policy at the Board meeting, when he voted in favour of the majority voting policy. [57] The application judge also concluded that the majority voting policy was passed for the purpose of removing Gelerman as a director. However, the basis for this conclusion is the application judge’s erroneous understanding of the background to, and need for, the majority voting policy. While the application judge acknowledged that Baylin was “required” to implement a majority voting policy, he does not appear to have given any weight to that fact in his analysis. Rather, in his oppression analysis, the application judge repeated his error about votes withheld not being votes against. He also relied on the absence of the commercial agreement exception as an exceptional circumstance which repeated his misunderstanding of the policy requirements respecting exceptional circumstances. [58] Finally, the application judge found that the Baylin majority voting policy was “contrary to the TSX’s Majority Voting Requirement”. In fact, the Baylin majority voting policy complied with the TSX requirement. The application judge’s conclusion that the Baylin policy “is oppressive and unfairly prejudicial and unfairly disregards both Gelerman’s and Spacebridge’s reasonable expectations” arises from his misunderstanding of the policy. It is a conclusion that is fundamentally flawed and cannot stand. It also led to a palpable and overriding error respecting his finding of oppression. (4) Set-off [59] As explained above, the set-off issue arises from a combination of the APA and the Consulting Agreement. Baylin has asserted claims for indemnity against Spacebridge in the millions of dollars. Those claims are being contested in separate proceedings. At the same time, Baylin was obliged to pay Gelerman, and his wife, $2.5 million over two years pursuant to the Consulting Agreement. Baylin claims the right to set-off its indemnity claims against the amounts that had not as yet been paid, under the Consulting Agreement, when it gave notice of its indemnity claims. It did so on May 8, 2019. More specifically, Baylin claims the right to set-off its claims against the five share certificates that had been delivered to DWPV, but which had not, as of that time, been released to Gelerman and his wife. [60] As noted above, $1.25 million of the consulting fees were to be paid by way of eight share certificates that were delivered to DWPV and to be released by them in quarterly installments. The dates of the installments were March, June, September and December in each of 2018 and 2019. The share certificates for March, June and September 2018 were released. The share certificates for December 2018 and March 2019 were not released, apparently because DWPV required the consent of Baylin to do so and that consent was not forthcoming, the reason for which is not entirely clear. Once Baylin gave notice of its set-off claim in May 2019, none of the June, September and December 2019 share certificates were released. [61] On this issue, the application judge found, at para. 67, that: Based on the above wording and having regard to the wording of para. 8.8 together with the entire APA and the other agreements forming part of the purchaser and sale transaction, I am satisfied that the right to set-off is not limited to amounts payable under the APA but rather encompasses any "amounts otherwise payable" by Baylin to the Spacebridge Group arising from the transaction. That would include amounts payable under the Consulting Agreement. [62] I agree with the application judge’s conclusion on this point. The words “amounts otherwise payable” are clearly broad enough to capture payments due under the Consulting Agreement. [63] However, the application judge went on to conclude that delivery of the share certificates to DWPV constituted payment by Baylin of the amounts due under the Consulting Agreement and, thus, those amounts were no longer “amounts otherwise payable” to which the indemnity claim could attach. [64] I do not agree with the application judge’s conclusion in this regard. The amounts due under the Consulting Agreement were not paid by Baylin simply by delivering the share certificates to DWPV. The whole structure of the Consulting Agreement was that the amounts due under it were to be paid out over a two-year period. The share certificates were delivered at the outset, but were not to be released by DWPV until the quarterly dates arrived, as I have explained above. Consistent with the structure and intent of the Consulting Agreement, the amounts payable under it were not paid until the share certificates were released. That has not happened with respect to the five share certificates held by DWPV. The amounts represented by those share certificates have not been paid as a consequence and, thus, those amounts remain payable. [65] The difficulty that is then presented is whether Baylin’s claim for amounts under the indemnity agreement can be set-off against the claim by Gelerman for delivery of the share certificates under the Consulting Agreement. Unfortunately, there does not appear to be any relevant caselaw that deals with the issue of whether share certificates can be the subject of a set-off claim in circumstances similar to those presented in this appeal. [66] I begin by noting that in Telford v. Holt , [1987] 2 S.C.R. 193, Wilson J. confirmed, at p. 204, that legal set-off requires mutual debts. Similarly, Wilson J. held, at p. 206, that equitable set-off is only available in respect of “money sums”. These observations have been noted with approval in the few cases that actually deal with non-monetary claims, including Dresser Industries Inc. v. Vos (1985), 60 A.R. 226 (Master), a case cited in argument by the respondent. [67] If Baylin was asserting legal or equitable set-off, it does not appear that such a right could be maintained since the concepts of “debt” and “money sums” do not appear to be broad enough to include share certificates or the shares themselves. While shares represent intangible property with value, as Kevin McGuinness concludes in Canadian Business Corporations Law, 3rd ed. (Toronto: Butterworths, 2017), at §18.388, shares of a corporation do not themselves constitute debt obligations owed to the shareholder. The relationship between the corporation and the shareholder is not one of debtor/creditor. He also concludes, at §18.42, that shares are not a “sum of money”. I am prepared to accept, for the purposes of this appeal, that those conclusions are correct. [68] However, Baylin does not assert legal or equitable set-off. Rather, it asserts a contractual right of set-off arising from section 8.8 of the APA. Contractual rights of set-off are not limited by the requirements of debts and money sums. On this point, Kelly Palmer, in The Law of Set-Off in Canada (Aurora: Canada Law Book, 1993), at p. 263, notes that the normal rules of set-off such as mutuality, liquid debts and connected debts do not apply and that the parties are free to contract for whatever result they wish. He concludes that “agreements to set-off which would, aside from the agreement, not be granted relief due to the absence of the requirements of set-off, will be upheld”. [69] This view, that the technical requirements of legal and equitable set-off do not apply to contractual set-off, finds support in certain comments of the Supreme Court of Canada in Caisse populaire Desjardins de l'Est de Drummond v. Canada , 2009 SCC 29, [2009] 2 S.C.R. 94. Although the primary issue in that case was whether the agreement between the parties constituted a security interest for purposes of s. 244(1.3) of the Income Tax Act , Rothstein J., at para. 22, commented on contractual compensation or set-off, stating: Contractual compensation achieves a similar goal to legal compensation or legal or equitable set-off, the discharge of mutual debts. However, contractual compensation achieves this goal through mutual consent. It provides the contracting parties with a self-help remedy that avoids the technical requirements of legal compensation or legal or equitable set-off: see J.-L. Baudouin and P.-G. Jobin, Les obligations (5th ed. 1998), at para. 981, and K. R. Palmer, The Law of Set-Off in Canada (1993), at pp. 263-64. Both a contract providing for a right of compensation in Quebec and a contract providing for a right of set-off in the common law provinces are to be interpreted by a court in a manner that gives effect to the intentions of the parties as reflected in the words of the contract. [Emphasis added.] [70] I see no reason in principle why the “money sum” rule should be treated any differently from other technical legal or equitable set-off requirements such as mutuality, liquid debts and connected debts, none of which apparently apply in the contractual set-off context. Accordingly, in my view, the parties to a contract are free to contract for the set-off of money’s worth or property. Put simply, a contract can override legal and equitable set-off principles. [71] The question then is whether section 8.8 of the APA accomplishes that result. I believe that it does. The principles of contractual interpretation are well-known. They were recently summarized by the Supreme Court of Canada in Resolute FP Canada Inc. v. Ontario (Attorney General) , 2019 SCC 60, 444 D.L.R. (4th) 77, at para. 74: This Court has described the object of contractual interpretation as being to ascertain the objective intentions of the parties ( Sattva , at para. 55). It has also described the object of contractual interpretation as discerning the parties’ “reasonable expectations with respect to the meaning of a contractual provision” ( Ledcor , at para. 65). In meeting these objects, the Court has signalled a shift away from an approach to contractual interpretation that is “dominated by technical rules of construction” to one that is instead rooted in “practical[ities and] common-sense” ( Sattva , at para. 47). This requires courts to read a contract “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract” ( ibid .). [72] Section 3.1 of the Consulting Agreement clearly indicates that the Baylin common shares form part of the consideration for the consulting services. The Baylin common shares are ascribed a value that comprises part of the total annual compensation. They represent, in the ordinary sense of the words, amounts that are payable under the Consulting Agreement. That conclusion is consistent with the conclusion reached by the application judge (with which I agree) regarding the meaning of the words “amounts otherwise payable” under section 8.8 of the APA. [73] Considering the ordinary meaning of the words of the agreements in context, the common-sense interpretation of the provisions requires the release of each individual share certificate on a particular date to represent an actual payment to the respondent in consideration of the services that have been performed. That means that Baylin should have been permitted to set-off the share certificates that had not been released, representing amounts not yet paid but “due”, following Baylin’s notice of its indemnification claims at the time of the application. E. CONCLUSION [74] The appeal is allowed, the orders below are set aside, and in their place, orders are granted: a. declaring that Baylin's majority voting policy is in accordance with the TSX's majority voting requirement and that Baylin's majority voting policy remains in force; b. declaring that Gelerman was required to have submitted his resignation to the Baylin board for consideration following the 2019 Annual General Meeting; c. that the remaining share certificates shall not be released from trust, pending the determination of Baylin's indemnity claims against Spacebridge, the consent of the parties, or further order of the Superior Court of Justice. [75] The appellants are entitled to their costs of the appeal fixed in the agreed amount of $25 ,000 inclusive of disbursements and HST. If the parties cannot agree on the disposition of the costs below, they may make written submissions on that issue. The appellants shall file their written submissions within 10 days of the release of these reasons and the respondents shall file their submissions within 10 days thereafter. Each side’s submissions shall be limited to five pages (excluding bills of costs) and no reply submissions shall be filed. Released: January 26, 2021 “DD” “I.V.B. Nordheimer J.A.” “I agree. Doherty J.A.” “I agree. Harvison Young J.A.” [1] While the issue was not raised before us, I note that appeals from orders made under the Business Corporations Act , R.S.O. 1990, c. B.16 lie to the Divisional Court: s. 255. However, since relief beyond the parameters of the Business Corporations Act was sought and determined in the orders below, this court has jurisdiction to hear the appeal: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 6(2). [2] Ontario Securities Commission, “TSX Request for Comment, Amendments to Part IV of the TSX Company Manual” in OSC Bulletin , 34:36 (September 9, 2011), 34 OSCB 9500, p. 9502 [3] See, for example, s. 27 of the General regulation under the OBCA , R.R.O. 1990, Reg. 62, which states: “A form of proxy shall provide a means for the shareholder to specify that the shares registered in the shareholder’s name shall be voted or withheld from voting in respect of the appointment of an auditor, the remuneration of the auditor or the election of directors.” [4] Ontario Securities Commission, “TSX Request for Comment, Amendments to Part IV of the TSX Company Manual” in OSC Bulletin , 34:36 (September 9, 2011), 34 OSCB 9500, p. 9502

COURT OF APPEAL FOR ONTARIO CITATION: Bank of Montreal v. Georgakopoulos, 2021 ONCA 60 DATE: 20210201 DOCKET: C67262 Strathy C.J.O., Zarnett and Sossin JJ.A. BETWEEN Bank of Montreal Plaintiff (Respondent) and Peter Georgakopoulos and Anka Georgakopoulos Defendants (Appellants) Peter Georgakopoulos and Anka Georgakopoulos, acting in person Christopher J. Staples, for the respondent Heard: January 25, 2021 by video conference On appeal from the judgment of Justice Jane Ferguson of the Superior Court of Justice, dated June 11, 2019, and from the costs order, dated July 26, 2019. REASONS FOR DECISION [1] The appellants appeal from the judgment that was granted against them on a motion for summary judgment that was brought by the respondent (the “Bank”). [2] The judgment ordered the appellants to pay the Bank $342,316.74, representing advances the appellants had received from the Bank and interest thereon. It declared an equitable mortgage in favour of the Bank over property owned by the appellant, Peter Georgakopoulos (“Peter”), described as 300 Front Street West, Suite 4501, Toronto (the “Toronto Property”), to secure these amounts. It ordered Peter to pay a further sum of $28,072.89 to the Bank, representing a credit card debt, and interest thereon. And it dismissed the appellants’ counterclaim. [3] On appeal, the appellants raise what are essentially four arguments. First, they argue that the motion judge lacked jurisdiction to deal with any aspect of the Bank’s claims. Second, they argue that the evidence proffered by the Bank was wrongly accepted by the motion judge and did not justify summary judgment. Third, they argue that the motion judge lacked the authority to declare an equitable charge against the Toronto Property, given the nature of  Peter’s  title to it. Fourth, they argue that their counterclaim was improperly dismissed. [4] We do not accept the appellants’ arguments. [5] As to jurisdiction, the Bank’s action was for (i) repayment of amounts it alleged had been drawn by the appellants under a line of credit facility, after the facility was supposed to have been cancelled and after the security the appellants had provided for loans under the Line of Credit Agreement had been discharged; (ii) an equitable mortgage to secure those amounts; and (iii) payment by Peter of a credit card debt. The Superior Court of Justice has subject matter jurisdiction over all those claims. As this court stated in 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd. , [1972] 2 O.R. 280 (C.A.), at 282, except where there is a specific provision to the contrary, the Superior Court’s jurisdiction is unrestricted in substantive law in civil matters. Nor is there merit to the appellants’ argument that there was an absence of personal jurisdiction over them, or that they have sovereign immunity. [6] As to the evidence, we are not persuaded that the motion judge committed any reversible error in concluding that there was no genuine issue requiring a trial. A motion judge’s conclusion that there is no genuine issue requiring a trial is one of mixed fact and law which, in the absence of extricable legal error, will only be disturbed on appeal for palpable and overriding error: Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80-84. [7] Although the appellants say the Bank’s evidence was inadmissible hearsay, the respondent’s primary evidence was that of a Bank employee who swore that this matter was within her responsibility, and that the facts she deposed to were within her personal knowledge or determined from the face of documents exhibited to her affidavit. [1] The motion judge was not legally required to disregard this evidence. [8] As to the sufficiency of the evidence, it is important to consider both what the Bank’s evidence was, and what other evidence there was. [9] The Bank’s evidence was that a Line of Credit Agreement had been entered into between the Bank and the appellants in 2008. It provided for a demand credit facility of up to $295,000, secured by a mortgage on the appellants’ property in Oakville. The appellants repaid the loan on August 6, 2015, out of the proceeds of sale of the Oakville property, and the mortgage on the Oakville property was discharged. The credit facility was supposed to be blocked by the Bank, so there could be no further advances, but by mistake it was not. The appellants then drew another $295,000, which they were not authorized to do, and which they did not repay. [10] The Bank’s evidence was also that it never intended to lend funds to the appellants on an unsecured basis, and that the appellants had no reason to believe that the Bank would do so, given the terms of the Line of Credit Agreement and the fact that, earlier in 2015, the appellants had approached the Bank for mortgage financing for a new property. In July 2015, Peter purchased the Toronto Property, and, after August 6, 2015, when the unauthorized drawings from the Bank took place, paid off another lender’s mortgage on that Property. The motion judge found the Bank’s funds were used to pay the other mortgage. [11] Finally, the Bank’s evidence was that Peter had not repaid his credit card debt in a sum exceeding $28,000. [12] As for evidence to the contrary, the motion judge found there to be none. She stated that the appellants had “proffered no evidence contradicting the evidence of [the Bank] or the advances of money received by them”. [13] It was accordingly open to the motion judge to conclude that there was no genuine issue requiring a trial and to grant summary judgment for repayment of the amounts advanced and the credit card debt. Her conclusion is not tainted by any palpable and overriding error. [14] We also find no reversible error in the motion judge’s conclusion that there was no genuine issue requiring a trial as to whether to grant a declaration of an equitable mortgage. She adverted to the correct legal test for granting such relief as set out by this court in Elias Markets Ltd. (Re) (2006), 274 D.L.R. (4th) 166 (Ont. C.A.), at paras. 63-65. It was open to her on the Bank’s evidence to infer a common intention that advances would be secured against real property, and to consider the Toronto Property as coming within that common intention, given the prior dealings about mortgage financing for a new property and Peter’s use of the funds drawn from the Bank to pay down a mortgage on the newly acquired Toronto Property. As the motion judge noted, the appellants had provided no “coherent evidence” in response. [15] Finally, we reject the appellants’ submission that there is no jurisdiction to declare an equitable charge over the Toronto Property, given that Peter is the owner of this property as verified by title records. The power to grant an equitable charge is well established: see Elias . The mortgagor or chargor under such a charge will necessarily be the title holder. [16] The motion judge also did not err in finding that there was no genuine issue requiring a trial with respect to whether the counterclaim should be dismissed. The motion judge found that no evidence in support of it had been proffered. [17] Shortly prior to the hearing of the appeal, the appellants submitted an affidavit and a document entitled Bills of Equity, which were accepted for filing on the basis that it would be up to the panel to decide whether to admit them. The Bills of Equity are irrelevant. The affidavit consists essentially of argument and does not meet the test for admission of fresh evidence. [18] The appeal is accordingly dismissed. The Bank is entitled to its costs of the appeal fixed in the sum of $7,000, inclusive of disbursements and applicable taxes. “G.R. Strathy C.J.O.” “B. Zarnett J.A.” “Sossin J.A.” [1] She also said that any information derived from others was believed and the source of it disclosed, although no such information was specifically identified in the affidavit.

COURT OF APPEAL FOR ONTARIO CITATION: Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57 DATE: 20210129 DOCKET: C67072 MacPherson, Zarnett and Jamal JJ.A. BETWEEN The Estate of Garry Frederick Beaudoin, by his Estate Trustee Shirley Beaudoin, Shirley Beaudoin, Michele Locke, Rece Locke, by Litigation Guardian Michele Locke and Peter Gage Locke, by Litigation Guardian Michele Locke Plaintiffs (Appellants) and Campbellford Memorial Hospital, Dr. Jaun Bothma, Dr. Jaun Bothma Medicine Professional Corporation, Dr. Thomas Chalmers Brown, Dr. Norman Richard Bartlett and N. Bartlett Medicine Professional Corporation Defendants (Respondents) Iain A.C. MacKinnon, Justin S. Linden and Michael Lacy, for the appellants Colin Chant, for the respondent, Campbellford Memorial Hospital Brian Kolenda and Jessica Kras, for the respondents, Dr. Jaun Bothma, Dr. Jaun Bothma Medicine Professional Corporation, Dr. Thomas Chalmers Brown, Dr. Norman Richard Bartlett and N. Bartlett Medicine Professional Corporation Heard: November 27, 2020 by video conference On appeal from the order of Justice William S. Chalmers of the Superior Court of Justice, dated May 16, 2019, with reasons reported at 2019 ONSC 3025. Jamal J.A.: A. OVERVIEW [1] Section 38(3) of the Trustee Act , R.S.O. 1990, c. T.23 prescribes that certain actions brought on behalf of a deceased person must be brought within two years of the person’s death. Case law has recognized that this two-year limitation period may be tolled or suspended when the defendant fraudulently conceals the existence of the plaintiff’s cause of action. The issue in this appeal is whether an allegation of fraudulent concealment was appropriately determined as a question of law, based on the pleadings alone, under r. 21.01(1)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [2] The appeal involves a medical malpractice claim brought by the estate of the late Garry Beaudoin and by his wife, daughter, and grandchildren as claimants under the Family Law Act , R.S.O. 1990, c. F.3 (“appellants”), against Campbellford Memorial Hospital, two emergency room doctors, and a diagnostic radiologist (“respondents”). They assert that Mr. Beaudoin was negligently diagnosed and treated at the Hospital on January 3, 4, and 5, 2015, leading to a delay in surgery that could have saved his life. Mr. Beaudoin passed away on January 9, 2015. [3] The appellants did not issue a statement of claim until April 27, 2017 (“April 2017 claim”) — about two years and three months after Mr. Beaudoin died. The claim has been amended several times since then. [4] The respondents delivered their statements of defence between July and October 2017. They denied negligence and asserted that the action was statute-barred because it had not been brought within the two-year limitation period under s. 38(3) of the Trustee Act . They then delivered a motion under r. 21.01(1)(a) for an order dismissing the action as statute-barred. [5] The appellants responded by amending their claim in July 2018 (“July 2018 claim”) to plead that the respondents’ fraudulent concealment tolled the limitation period. They alleged that in March 2015 they had requested and paid for Mr. Beaudoin’s complete medical records from the Hospital. Medical records were given to them in May and June 2015, but did not include computerized tomography (“CT”) imaging conducted on January 3, 2015, which showed an obstruction and/or occlusion of Mr. Beaudoin’s mesenteric artery, which supplies blood to the intestines. The CT imaging was not disclosed to the appellants until May 2017, more than two years later. The appellants claim that the fraudulent concealment of the CT imaging prevented them from knowing that they had a cause of action against the respondents until May 2017 — about a month after they had issued the April 2017 claim. They claim that had the CT imaging been disclosed when it was requested, they would have been able to sue before the limitation period expired. The appellants also amended their claim to allege breach of contract and breach of the Personal Health Information Protection Act, 2004 , S.O. 2004, c. 3, Sched. A (“ PHIPA ”) arising from the delayed disclosure of the CT imaging. [6] The respondents’ r. 21.01(1)(a) motion proceeded on the basis of the July 2018 claim and was granted in part. The motion judge struck out the claims under the Trustee Act as statute-barred, ruling that the appellants could not rely on fraudulent concealment to toll the limitation period because there was no causal connection between the alleged improper concealment of the CT imaging and the appellants’ failure to sue within the limitation period. He therefore dismissed the action as against the three doctors. However, he allowed the claims for breach of contract and breach of the PHIPA to continue against the Hospital. [7] The appellants now appeal the motion judge’s decision. [8] For the reasons that follow, I would allow the appeal. The motion judge erred in deciding a disputed factual question of fraudulent concealment as a question of law under r. 21.01(1)(a) — whether the respondents’ failure to disclose the CT imaging prevented the appellants from reasonably discovering their cause of action before the limitation period expired. Because the facts pleaded in the July 2018 claim must be assumed to be true and are not patently ridiculous or manifestly incapable of proof, it is not plain and obvious that the negligence claims are statute-barred. I would therefore allow the claims pleaded in the July 2018 claim to proceed. B. The facts as pleaded [9] The facts as pleaded in the July 2018 claim — which on a motion under r. 21.01(1)(a) must be assumed to be true, unless they are patently ridiculous or manifestly incapable of proof — are as follows: · On January 2, 2015, at 2:38 a.m., Mr. Beaudoin went to the Emergency Department of the Campbellford Memorial Hospital, complaining of sudden pain in his lower back and abdomen. The respondent Dr. Jaun Bothma examined him and diagnosed degenerative disc disease, even though no radiographic evidence supported this finding. Mr. Beaudoin was discharged at 4:50 a.m. · On January 3, 2015, in the early afternoon, Mr. Beaudoin returned to the Hospital. He now complained of acute abdominal pain, nausea, vomiting, no bowel movement for three days, and being unable to keep food down. Dr. Bothma examined Mr. Beaudoin again and this time ordered a CT scan. The radiologist report of the respondent Dr. Thomas Brown recorded that “some slightly dilated fluid-filled small bowel loops are shown in the distal small bowel”, but noted that “no definite evidence of an acute small bowel obstruction is seen at the present time.” · On January 4, 2015, at 8:26 p.m., Mr. Beaudoin went to the Hospital a third time. He complained of abdominal pain, bloating, and no bowel movement for five days. Dr. Brown, who reviewed X-ray images, noted in his report “multiple slightly dilated small bowel loops in the mid-abdomen (small bowel obstruction)”, and concluded that “while the changes in the small bowel may be due to an ileus the possibility of a developing low small bowel obstruction is not excluded.” · On January 5, 2015, Mr. Beaudoin was sent for further imaging. The radiologist’s report recorded “evidence of bowel ischemia [ [1] ] with new portal venous gas identified in the small bowel mesentery and with the liver. Small bowel obstruction secondary to superior mesenteric artery occlusion with diffusely dilated, fluid and air filled small bowel loops.” Mr. Beaudoin was transferred to the Peterborough Regional Health Centre (“PRHC”) for emergency surgery. During the surgery, it was determined that “almost the entirety of his small bowel was ischemic , and was showing signs of non-viability”, and that he would not survive . · Four days later, on January 9, 2015, Mr. Beaudoin died. · In early March 2015, the appellants paid for Mr. Beaudoin’s complete medical records from the Hospital and the PRHC. Medical records were provided in May and June 2015, but were not complete: they excluded the imaging from the diagnostic tests performed, including, but not limited to, the CT imaging from January 3, 2015. The CT imaging was not provided until May and June 2017, after the appellants had retained a lawyer who wrote to the Hospital and the PRHC. The CT imaging from January 3, 2015 revealed an occlusion and/or obstruction of the superior mesenteric artery. · Mr. Beaudoin died because of the respondents’ failure to identify an occlusion and/or obstruction of his mesenteric artery on the CT imaging from January 3, 2015. Had the occlusion and/or obstruction of the mesenteric artery not been ignored, Mr. Beaudoin would have received treatment that would have saved his life. · The doctrine of fraudulent concealment tolled the limitation period under the Trustee Act . The appellants were unaware, and could not have been aware, of Dr. Brown's negligent failure to identify the mesenteric artery obstruction until they received the actual CT imaging from the Hospital in May 2017. · Lastly, the appellants contracted with the Hospital to provide Mr. Beaudoin’s complete medical records, including the CT imaging, when they ordered and paid for those records. The Hospital breached its contract with the appellants and its statutory duties under the PHIPA by failing to provide the CT imaging in May or June 2015. If the appellants’ claims are statute-barred under the Trustee Act , the appellants are entitled to the same damages they would have been entitled to had the claim been brought within the limitation period. But for the Hospital’s misconduct and breach of contract, the respondents would have discovered the respondents’ negligence within two years of Mr. Beaudoin’s death and would not face a limitation period issue. C. The Motion Judge’s Decision [10] The motion judge granted the respondents’ motion under r. 21.01(1)(a) to dismiss the appellants’ claims in negligence and their derivative claims under the Family Law Act as statute-barred under s. 38(3) of the Trustee Act . He held that the appellants’ plea of fraudulent concealment did not suspend the limitation period in s. 38(3), because there was no causal connection between the allegedly concealed CT imaging from January 3, 2015 and the appellants’ failure to sue within the limitation period. He concluded that the appellants knew about their cause of action even before the CT imaging was disclosed in May 2017, because they had sued the respondents in the April 2017 claim. He therefore dismissed the negligence and derivative claims against all the respondents and dismissed the action against the three doctors. [11] However, the motion judge ruled that the appellants’ claims against the Hospital for breach of contract and breach of the PHIPA could not be resolved on the motion under r. 21.01(1)(a) and therefore allowed those claims to continue. D. DISCUSSION [12] The issue on this appeal is whether the motion judge correctly decided, as a question of law under r. 21.01(1)(a), that the facts pleaded in the July 2018 claim could not support a finding of fraudulent concealment to suspend the limitation period in s. 38(3) of the Trustee Act . Before turning to that question, I will first summarize the applicable legal principles. (a) The Applicable Legal Principles (i) The test under r. 21.01(1)(a) [13] Rule 21.01(1)(a) allows a party to move for a determination, before trial, of “a question of law raised by a pleading in an action”, where such determination may dispose of all or part of the action, substantially shorten the trial, or result in a substantial saving of costs. No evidence is admissible on a motion under r. 21.01(1)(a), except with leave of a judge or on consent of the parties: r. 21.01(2)(a). [14] The main principles applicable to a motion to determine a question of law under r. 21.01(1)(a) are well known: 1. The test under r. 21.01(1)(a) is whether the determination of the issue of law is “plain and obvious”, which is the same test that applies under r. 21.01(1)(b) for whether the pleading should be struck because it discloses no reasonable cause of action or defence: Transamerica Life Canada Inc. v. ING Canada Inc. (2003), 68 O.R. (3d) 457 (C.A.), at para. 37 ; Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario , 4th ed. (Toronto: LexisNexis Canada, 2020), at para. 6.168 . 2. The facts pleaded in the statement of claim are assumed to be true, unless they are patently ridiculous or manifestly incapable of proof: Paton Estate v. Ontario Lottery and Gaming Corporation (Fallsview Casino Resort and OLG Casino Brantford) , 2016 ONCA 458, 131 O.R. (3d) 273, at para. 12. 3. The statement of claim should be read as generously as possible to accommodate any drafting inadequacies in the pleading. If the claim has some chance of success, it should be permitted to proceed: R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17-22. (ii) The standard of review [15] The standard of review of a motion judge’s determination under r. 21.01(1)(a) is correctness, because under this rule the court is asked to determine a question of law: Das v. George Weston Limited , 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 65, leave to appeal refused, [2019] S.C.C.A. No. 69. (iii) The two-year limitation period in s. 38(3) of the Trustee Act [16] The respondents rely on the limitation period in s. 38 of the Trustee Act . Section 38(1) of the Trustee Act provides that, except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action “for all torts or injuries to the person or to the property of the deceased person”. Section 38(3) provides that no action under s. 38 shall be brought “after the expiration of two years from the death of the deceased”. [17] There is no dispute that the following legal principles apply regarding s. 38(3) of the Trustee Act : 1. Claims brought by the deceased’s dependents under s. 61 of the Family Law Act are governed by the same limitation period in s. 38(3) of the Trustee Act: Camarata v. Morgan , 2009 ONCA 38, 94 O.R. (3d) 496, at para. 9; Smith Estate v. College of Physicians and Surgeons of Ontario (1998), 41 O.R. (3d) 481 (C.A.), at p. 488, leave to appeal refused, [1998] S.C.C.A. No. 635. 2. Section 38(3) of the Trustee Act prescribes a “hard” or absolute limitation period triggered by a fixed and known event — when the deceased dies — and expires two years later: Levesque v. Crampton Estate , 2017 ONCA 455, 136 O.R. (3d) 161, at para. 51; Bikur Cholim Jewish Volunteer Services v. Penna Estate , 2009 ONCA 196, 94 O.R. (3d) 401, at para. 25. 3. The discoverability principles under the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B do not apply to toll the limitation period under s. 38(3) of the Trustee Act: Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341 (C.A.), at para. 33; Bikur Cholim , at para. 26; and Levesque , at para. 47. Although this can sometimes be harsh, since a claim under the Trustee Act can be time-barred even before it is discovered, this can be mitigated by common law rules, such as the doctrine of fraudulent concealment: Levesque , at para. 56; Bikur Cholim , at para. 25. [18] Here, Mr. Beaudoin died on January 9, 2015, but the action was not brought until April 27, 2017 — just over two years and three months after his death. The claims under the Trustee Act and the derivative family law claims would therefore be statute-barred, unless the appellants can invoke a common law rule to suspend the limitation period, such as the doctrine of fraudulent concealment. (iv) The doctrine of fraudulent concealment [19] The Supreme Court of Canada recently addressed the doctrine of fraudulent concealment in Pioneer Corp. v. Godfrey , 2019 SCC 42, 437 D.L.R. (4th) 383. Brown J. for the majority described fraudulent concealment as “an equitable doctrine that prevents limitation periods from being used ‘as an instrument of injustice’”: at para. 52, citing M. (K.) v. M. (H) , [1992] 3 S.C.R. 6 , at pp. 58-59. He stated that “[w]here the defendant fraudulently conceals the existence of a cause of action, the limitation period is suspended until the plaintiff discovers the fraud or ought reasonably to have discovered the fraud”, and noted that it is “a form of ‘equitable fraud’ … which is not confined to the parameters of the common law action for fraud”: at para. 52. See also M. (K.) , at p. 56; Giroux Estate , at para. 28. [20] Pioneer was released a few months after the motion judge’s decision here. The motion judge had cited Colin v. Tan , 2016 ONSC 1187, 81 C.P.C. (7th) 130, at para. 45, to suggest that fraudulent concealment has three “constitutive element[s]”: (1) the defendant and plaintiff have a special relationship with one another; (2) given the special or confidential nature of the relationship, the defendant’s conduct is unconscionable; and (3) the defendant conceals the plaintiff’s right of action either actively or the right of action is concealed by the manner of the wrongdoing . [21] In Pioneer , however, Brown J. explained that although fraudulent concealment can apply when there is a special relationship between the parties, a special relationship is not required: at para. 54. Instead, fraudulent concealment can apply whenever “it would be, for any reason , unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action” (emphasis in original). [22] With this background, I now turn to consider the facts pleaded in the July 2018 claim and the parties’ arguments. (b) Application to This Case (i) The motion judge’s reasons on fraudulent concealment [23] The motion judge accepted that the July 2018 claim pleaded a special relationship between the parties: a patient-hospital relationship and a patient-doctor relationship, both involving Mr. Beaudoin. The respondents do not contest this, and I see no basis to disturb this conclusion. In any event, based on Pioneer , a special relationship was not required to establish fraudulent concealment. [24] The motion judge also ruled that the July 2018 claim pleaded that the respondents engaged in unconscionable conduct by actively concealing and withholding from the appellants the CT imaging taken on January 3, 2015 and their errors until that imaging was disclosed in May 2017. The respondents also do not contest this conclusion. I see no error in it either. [25] This takes me to the key point of contention on this appeal: whether, on the facts pleaded, the motion judge erred in finding that the respondents’ alleged wrongdoing in concealing the CT imaging prevented the appellants from reasonably discovering their cause of action before the limitation period expired. [26] The motion judge ruled that the CT imaging “did not add anything of significance to the [appellants’] knowledge”. He found “no differences of consequence” between the facts pleaded in the April 2017 claim, before the CT imaging was disclosed, and the July 2018 claim, after it was disclosed. He concluded that although the CT imaging was potentially important evidence, the appellants knew about their cause of action against the respondents even before the imaging was disclosed: I am of the view that there are no differences of consequence between the allegations made in the [April 2017 claim] and the amended claims prepared after the [appellants] received the actual CT images. In both, it is alleged that as a result of failures related to the CT scan, the [respondents] did not properly diagnose Mr. Beaudoin. The information allegedly concealed consisted of the actual CT imaging. The actual CT images did not add anything of significance to the [appellants’] knowledge. Although the actual images may be important evidence, the images were not , in this case , necessary for the [appellants] to be aware of a cause of action as against the [respondents]. Based on the allegations in the [April 2017 claim], the [appellants] had sufficient material facts to know that there was a claim in negligence against the [respondents] for the manner in which Mr. Beaudoin was treated. The facts necessary to base a cause of action against the [respondents] were known to the [appellants] before the actual CT scans were received. I therefore find that there is no causal connection between the information that was allegedly concealed and the [appellants’] failure to bring the action within the limitation period. Based on the allegations set out in the [April 2017 claim], the [appellants] were aware of the cause of action even in the absence of the allegedly concealed material. Therefore the third element of the doctrine of Fraudulent Concealment is not satisfied. [27] In essence, the appellants contend that the motion judge erred in two respects: (1) his ruling that the conditions for fraudulent concealment were not met involves a question of fact, not law, and thus should not have been determined on a motion under r. 21.01(1)(a); (2) the facts pleaded in the July 2018 claim relating to causation were not patently ridiculous or manifestly incapable of proof. [28] I will address each point in turn. (1) Did the motion judge err in deciding the question of fraudulent concealment as a question of law under r. 21.01(1)(a)? [29] As I will explain, the motion judge erred in deciding the question of fraudulent concealment as a question of law under r. 21.01(1)(a). [30] This court has underscored that a motion under r. 21.01(1)(a) is not the proper procedural vehicle for weighing evidence or making findings of fact: see e.g., McIlvenna v. 1887401 Ontario Ltd. , 2015 ONCA 830, 344 O.A.C. 5, at paras. 19-20; Andersen Consulting v. Canada (Attorney General) (2001), 150 O.A.C. 177 (C.A.), at para. 35. [31] This court has applied this general principle in a long line of cases in which it has discouraged using r. 21.01(1)(a) to determine limitation period issues except in very narrow circumstances where pleadings are closed and the facts relevant to the limitation period are undisputed: Kaynes v. BP p.l.c. , 2021 ONCA 36, at para. 74; Beardsley v. Ontario (2001), 57 O.R. (3d) 1 (C.A.), at para. 21; Tran v. University of Western Ontario , 2016 ONCA 978, 410 D.L.R. (4th) 527, at paras. 18-21; and Salewski v. Lalonde , 2017 ONCA 515, 137 O.R. (3d) 762, at paras. 42-45. [32] The rationale for this position was recently explained by Feldman J.A. in Kaynes , at para. 81. She noted that discoverability issues are factual and it is unfair to the plaintiff for a motion judge to make such factual findings on a motion to determine a question of law under r. 21.01(1)(a), because that rule prohibits evidence on the motion except with leave of the court or on consent: In establishing the main rule that a claim should not normally be struck out as statute-barred using r. 21.01(1)(a), the courts have noted that discoverability issues are factual and that the rule is intended for legal issues only where the facts are undisputed. It would therefore be unfair to a plaintiff where the facts are not admitted, to use this rule, which does not allow evidence to be filed except with leave or on consent. But where a plaintiff’s pleadings establish when the plaintiff discovered the claim, so that the issue is undisputed, then the courts have allowed r. 21.01(1)(a) to be used as an efficient method of striking out claims that have no chance of success, in accordance with the principle approved in Knight v. Imperial Tobacco Canada Ltd. , 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19. [33] Thus, a factual dispute about the discovery date of a cause of action precludes the use of r. 21.01(1)(a) to determine whether a limitation period subject to discoverability has expired, because this rule is limited to determining questions of law raised by a pleading. If the parties have joined issue on disputed facts on the limitations issue, the preferable procedure might be a motion for summary judgment under r. 20, which provides the court with certain fact-finding powers: Kaynes , at para. 80; Brozmanova v. Tarshis , 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at paras. 21, 23, and 35; and r. 20.04(2.1). [34] These principles about the limited scope for using r. 21.01(1)(a) to address discoverability under the Limitations Act, 2002 also apply to fraudulent concealment. Just as factual issues should not be decided in relation to discoverability on a motion under r. 21.01(1)(a), they should also not be decided in relation to fraudulent concealment. To do so would be unfair to a plaintiff when no evidence is admissible on such a motion except with leave of the court or on consent. [35] This approach is supported by this court’s decision in Giroux Estate. That case involved an appeal from a decision on a r. 21.01(1) motion refusing to strike as statute-barred a claim against a urologist brought by the deceased patient’s estate. The estate alleged that the urologist had fraudulently concealed his failure to properly treat a malignant tumour in the bladder of the deceased, who died as a result. The urologist submitted that he could not be said to have concealed a fact of which the estate was already aware when the limitation date expired. This court agreed that the facts as pleaded were capable of supporting a finding of fraudulent concealment, and so the action should not be struck as statute-barred. Although Moldaver J.A. (as he then was) for this court acknowledged that the inferences the urologist urged the court to draw from the pleadings as to why the claim was statute-barred “may be borne out” at the end of the day, he highlighted that the case was just at the pleadings stage: at paras. 37, 41. [36] The operative question is thus whether the pleadings here raise a factual dispute about the application of the doctrine of fraudulent concealment. I conclude that they do. The factual dispute concerns causation: whether there is a causal connection between the allegedly concealed CT imaging and the appellants’ failure to sue within the limitation period. The appellants assert such a causal connection; the respondents deny it. The motion judge found no causal connection, concluding that the CT images “did not add anything of significance to the [appellants’] knowledge”, and that the “facts necessary to base a cause of action against the [respondents] were known to the [appellants] before the actual CT scans were received”. [37] But causation involves a factual inquiry: Clements v. Clements , 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 13; Ediger v. Johnston , 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 29; and Campbell v. Bruce (County) , 2016 ONCA 371, 349 O.A.C. 302, at para. 55, leave to appeal refused, [2016] S.C.C.A. No. 325. Such a factual issue should generally not be determined on a motion to determine a question of law under r. 21.01(1)(a). [38] The motion judge’s finding that the CT imaging “did not add anything of significance to the [appellants’] knowledge” is also problematic. The CT imaging was not in evidence, either on the motion or this appeal. [39] However, the respondent doctors assert in their factum that the April 2017 claim “provides definitive evidence that the [a]ppellants had knowledge of their cause of action as of April 27, 2017”. They note that courts have considered prior pleadings in motions under r. 21.01(1)(a), citing Metropolitan Toronto Condominium Corp. No. 1352 v. Newport Beach Development Inc. , 2012 ONCA 850, 113 O.R. (3d) 673, at paras. 111-13 and Torgerson et al. v. Nijem , 2019 ONSC 3320 . But neither of those cases purports to authorize a court to make a factual finding on a disputed point on a motion under r. 21.01(1)(a). The appellants assert that issuing a statement of claim is not necessarily determinative of their “knowledge” of a cause of action, and that the April 2017 claim simply reflected their “suspicion” that a cause of action may have existed. The case law requires knowledge of the cause of action, not mere suspicion. For example, in Pioneer , at para. 53, Brown J. cited approvingly T.P. v. A.P. , 1988 ABCA 352, 92 A.R. 122, though on a different point, in which the Alberta Court of Appeal discussed fraudulent concealment and stated that “[s]uspicion is not knowledge”: at para. 15. See also Zeppa v. Woodbridge Heating & Air-Conditioning Ltd. , 2019 ONCA 47, 144 O.R. (3d) 385, at para. 41, leave to appeal refused, [2019] S.C.C.A. No. 91; Lawless v. Anderson , 2011 ONCA 102, 276 O.A.C. 75, at paras. 21-28; and Kaynes , at para. 56. Because this is a fact-based analysis and both parties’ positions depend on evidence, this factual dispute cannot be decided on a motion under r. 21.01(1)(a). [40] The respondents contest this conclusion with their second argument. They say that the motion judge was entitled to find no causation between the non-disclosure of the CT imaging and the failure to sue within the limitation period because the July 2018 claim pleads facts about causation that are patently ridiculous or manifestly incapable of proof. I will address this argument next. (2) Was it open to the motion judge to find that the facts as pleaded in the July 2018 claim relating to causation were patently ridiculous or manifestly incapable of proof? [41] There are two problems with the respondents’ argument that the motion judge was entitled to find that the facts pleaded in the July 2018 claim relating to causation are patently ridiculous or manifestly incapable of proof. [42] The first problem is that the motion judge did not purport to apply the standard of “patently ridiculous or manifestly incapable of proof”. He instead made a factual finding against the appellants on causation based on the pleadings alone. As I have already explained, this was an error. A motion under r. 21.01(1)(a) is not the proper procedural vehicle for weighing evidence or making findings of fact. [43] The second problem is that, assuming the facts pleaded in the July 2018 are taken as true, the plea of fraudulent concealment is not patently ridiculous or manifestly incapable of proof. [44] The Supreme Court of Canada’s decision in Operation Dismantle v. The Queen , [1985] 1 S.C.R. 441 remains the leading case on the type of allegation that is “manifestly incapable of proof”. At issue was whether to strike out, as disclosing no reasonable cause of action, a statement of claim. The key allegation was that the decision of the federal cabinet to permit the United States to test cruise missiles in Canada would threaten the lives and security of Canadians by increasing the risk of nuclear conflict, and would thus violate s. 7 of the Canadian Charter of Rights and Freedoms . The claim pleaded such a causal link through a series of reactions by various foreign powers, including arms agreements becoming unenforceable, Canada becoming the target of a nuclear attack, an increased likelihood of a pre-emptive strike or accidental firing, and escalation of the nuclear arms race. Dickson J. (as he then was) for the majority of the Supreme Court ruled, at p. 455, that he did not need to assume that the plaintiffs’ allegations were true because they were by their very nature incapable of proof: We are not , in my opinion, required … to take as true the appellants’ allegations concerning the possible consequences of the testing of the cruise missile. The rule that the material facts in a statement of claim must be taken as true for the purpose of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true. The very nature of such an allegation is that it cannot be proven to be true by the adduction of evidence. It would, therefore, be improper to accept that such an allegation is true. No violence is done to the rule where allegations, incapable of proof, are not taken as proven . [Emphasis added.] [45] Pleaded facts are incapable of proof when “proof is inherently impossible”: P.K. v. Desrochers (2001), 151 O.A.C. 341 (C.A.), at para. 4, leave to appeal refused, [2002] S.C.C.A. No. 81. Pleaded facts that are merely difficult to prove are not incapable of proof: Spar Roofing & Metal Supplies Ltd. v. Glynn , 2016 ONCA 296, 401 D.L.R. (4th) 318, at para. 44. [46] Here, the essence of the appellants’ fraudulent concealment allegation is that had the CT imaging been disclosed rather than fraudulently concealed when it was requested in May and June 2015, then, as pleaded in the July 2018 claim, the appellants would have sued “within two years of [Mr. Beaudoin’s] death and would not be faced with the limitation defence advanced by the [respondents].” [47] This allegation is not of such a nature that “it cannot be proven to be true by the adduction of evidence”, nor is it patently ridiculous. On the contrary, it is the sort of factual issue that courts adjudicate regularly based on evidence when limitation period issues arise. Undoubtedly, that the appellants issued the April 2017 claim before receiving the CT imaging will be among the facts considered by the court deciding the fraudulent concealment issue. The allegation that the appellants would have sued before the limitation period expired had the CT imaging been disclosed when it was requested may be hard to prove or it may be easy to prove, but it is provable, depending on the evidence. This court should not speculate on what a trier of fact would decide based on evidence it has not seen. [48] This court applied the doctrine of fraudulent concealment where a defendant’s conduct was alleged to have been responsible for a plaintiff’s delay in filing a claim in Halloran v. Sargeant (2002), 163 O.A.C. 138 (C.A.). Mr. Halloran, who was terminated from his employment because of a corporate reorganization, took an unreduced early pension instead of a special severance package based on false information provided by his employer that the pension option exceeded his statutory entitlement. In 1994, a group of employees who had also chosen the pension option succeeded in a claim for severance pay in addition to a pension, a claim that the Divisional Court upheld in 1995. In 1995, Mr. Halloran learned about the court’s decision in a newspaper article, and in 1996, he sued for severance and termination pay. The referee dismissed the claim as statute-barred under s. 82 of the Employment Standards Act , R.S.O. 1990, c. E.14, which imposed a two‑year limitation period. Mr. Halloran’s application for judicial review was granted, and the employer’s appeal to this court was dismissed. [49] Armstrong J.A. held that the referee erred in refusing to apply the doctrine of fraudulent concealment to toll the limitation period. He found that because the company made a misrepresentation that caused the employee to act to his detriment, it was unconscionable for it to invoke the limitation period when it was responsible for the delay in filing the claim. At para. 34, Armstrong J.A. concluded: In my view, the limitation period in s. 82 (2) should not have commenced until Mr. Halloran became aware that severance money under the Act was due to him which was either December 2, 1995 [when he read a newspaper account about the court’s decision in favour of the employees] or perhaps earlier, on March 23, 1994 [when he read a newspaper account about the employees’ claim and learned that a pending decision was expected to go in favour of the employees]. Either of the aforementioned dates bring him within the time prescribed in s. 82 (2). [50] Armstrong J.A. added, at para. 36, that “[t]he same conduct of the company that amounted to fraudulent concealment resulted in Mr. Halloran doing nothing. He had no apparent reason to consult a lawyer based upon what he was told by the company.” [51] Here, the appellants similarly allege that the respondents’ fraudulent concealment was responsible for their delay in filing a claim. Based on a long line of authorities, they should have a chance to support this allegation with evidence. [52] If, based on the evidence, the court finds fraudulent concealment for some or all of the period between when the CT imaging was requested and when it was disclosed, the court will then have to decide when “the limitation clock starts to run or, having started to run, when it stops and when it starts up again”: Giroux Estate , at para. 28, n. 6. These determinations would all factor into the assessment of whether the appellants’ negligence and derivative family law claims are statute-barred. [53] As a result, I conclude that the appellants’ plea of fraudulent concealment is neither patently ridiculous nor manifestly incapable of proof. It therefore should not have been rejected on a motion under r. 21.01(1)(a). E. Disposition [54] I would allow the appeal, set aside the order of the motion judge, and award the appellants costs of the appeal in the claimed amount of $15,000 all inclusive. Released: January 29, 2021 (“J.C.M.”) “M. Jamal J.A.” “I agree. J.C. MacPherson J.A.” “I agree. B. Zarnett J.A.” [1] “ Ischemia” is an inadequate blood supply to part of the body.

COURT OF APPEAL FOR ONTARIO CITATION: Beazley v. Canada (Attorney General), 2021 ONCA 117 DATE: 20210225 DOCKET: C67948 Strathy C.J.O., Brown and Miller JJ.A. BETWEEN Cary Beazley Plaintiff (Appellant) and Attorney General of Canada and Her Majesty the Queen in Right of Ontario Defendants (Respondents) Cary Beazley, acting in person Marshall Jeske, for the respondent, Attorney General of Canada Roopa Mann, for the respondent, Her Majesty the Queen in Right of Ontario Heard: February 12, 2021 by video conference On appeal from the order of Justice Sally A. Gomery of the Superior Court of Justice, dated December 19, 2019. REASONS FOR DECISION [1] In this action, commenced against Canada and Ontario in 2018 (the “2018 Action”), Mr. Beazley raises substantially the same issues, on substantially the same pleadings, as he did in an action he commenced in 2017 against Canada, Ontario, some 28 physicians and the Queensway Carleton Hospital (the “2017 Action”). [2] Mr. Beazley was diagnosed with Lyme Disease in 2017. In both actions, he pled, among other things, that his diagnosis and treatment were delayed or otherwise impaired by the misrepresentations by Canada and Ontario concerning the efficacy of testing for Lyme Disease. [3] The 2017 Action was dismissed, without leave to amend, as disclosing no reasonable cause of action. A motion brought in this court to extend the time to appeal that decision was dismissed on the basis, among other things, that the appeal had no merit. A motion to review the dismissal of the time extension motion was dismissed by a panel of this court: Beazley v. Canada (Attorney General) , 2020 ONCA 582. [4] The motion judge dismissed the 2018 Action for the same reasons she had dismissed the 2017 Action. She held that this was one of the exceptional cases where written submissions from the responding party (the appellant) would serve no purpose, because the court had already made a final order dismissing the 2017 Action, the statements of claim were substantially identical, and the issues raised were res judicata . She found that the 2018 Action could not possibly succeed. [5] We agree with all those conclusions. In our view, this was one of those clear cases in which the abusive nature of the claim was apparent on the face of the pleading which was, as the motion judge found, substantially identical to the pleading in the 2017 Action. We would not interfere with the exercise of the motion judge’s discretion. [6] While Mr. Beazley suggests that the pleading could have been cured by amendment, the motion judge referred to her reasons on the 2017 Action in which she observed that the appellant had not alluded to any additional facts that could cure the defects in the pleading and was not satisfied that granting leave to amend would serve any useful purpose. Having heard Mr. Beazley’s submissions, we see no error in these conclusions. [7] Nor are we persuaded that the motion judge erred in the exercise of her discretion in dismissing the 2018 Action pursuant to r. 2.1.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, without giving Mr. Beazley an opportunity to make submissions. Rule 2.1.01(3) gave the motion judge discretion to dismiss a claim without requesting submissions: Alexander v. Longo Brothers Fruit Market Inc. , 2020 ONCA 590, at para. 4. That discretion was exercised judicially. [8] As the respondents note, there is no question of Mr. Beazley’s passionate belief that he has been wronged. However, a previous decision of this court has confirmed that there was no merit to Mr. Beazley’s appeal of the dismissal of the 2017 Action. That dismissal included a finding that Mr. Beazley had not established that the deficiencies in his statement of claim could be cured by amendment. It is not open to Mr. Beazley to re-argue that conclusion based on a subsequent, and almost identical, statement of claim. [9] The appeal is dismissed, with costs fixed at $300, payable to each respondent, inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “David Brown J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Bilodeau (Re), 2021 ONCA 198 DATE:  20210331 DOCKET: C68631 Watt, Hoy and Nordheimer JJ.A. IN THE MATTER OF:  Matthew Bilodeau AN APPEAL UNDER PART XX.1 OF THE CODE Stephen F. Gehl, for the appellant Rebecca Schwartz, for the respondent, The Attorney General of Ontario Julie A. Zamprogna Balles, for the respondent, The Person in Charge of the Southwest Centre for Forensic Mental Health Care St. Joseph’s Health Care London Heard: March 26, 2021 by video conference On appeal from the disposition of the Ontario Review Board, dated July 16, 2020, with reasons dated August 4, 2020. REASONS FOR DECISION [1] Mr. Bilodeau appeals the disposition of the Ontario Review Board, continuing his conditional discharge but reducing his obligation to report to the Hospital to not less than two times per month. [2] Counsel for Mr. Bilodeau argues that the Board’s finding that he continues to pose a significant threat to the safety of the public was unreasonable and seeks an absolute discharge. In particular, he argues that the Board’s finding that he poses a significant threat was speculative, not grounded in the evidence, and failed to consider that  his only incident of violence was the index offence, he has been compliant with medication for eight years, and he has voluntarily returned to the Hospital when symptomatic. [3] We are not persuaded that there is any basis for this court to intervene. The Board’s conclusion was reasonable and is grounded in the evidence. The path to its conclusion is clear. The Board’s decision reflected “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 83, 85. [4] The Board reviewed and considered the evidence of Mr. Bilodeau’s treating physician, Dr. Ugwunze, and the Hospital Report. The evidence on which the Board’s disposition rests includes the following. [5] On April 3, 2012, Mr. Bilodeau was found not criminally responsible on account of mental disorder on two charges of attempt murder, after stabbing his father with a large butcher knife and stabbing his mother in the chest with a smaller knife. The offence occurred less than two weeks after he had stopped his medication. [6] Mr. Bilodeau is diagnosed with schizoaffective disorder, substance use disorder (in remission) and anxiety disorder NOS. [7] At the time of the disposition under appeal, Mr. Bilodeau lived alone in a one -bedroom apartment. However, he continued to suffer from active psychotic symptoms and continues to require oversight. Dr. Ugwunze opined that should Mr. Bilodeau miss two doses of any of the three anti-psychotic medications he takes, his mental state would deteriorate significantly within 48 hours. Further, Dr. Ugwunze’s evidence was that the therapeutic level of one of his anti-psychotic medications, clozapine, is affected by his use of cigarettes and, as a result, his medication levels require monitoring to ensure that they remain within the therapeutic range. [8] Mr. Bilodeau has made progress and, in the year under review, steps were made to transfer Mr. Bilodeau’s care from a forensic outreach team to an Assertive Community Treatment Team (ACTT).  But as a result of restrictions arising from the COVID-19 pandemic, a therapeutic relationship had not developed by the time of the Board hearing. Dr Ugwunze explained that a developed therapeutic relationship was necessary to manage Mr. Bilodeau’s medication, given his attempts to negotiate reductions and question the authenticity of his medication. Mr. Bilodeau struggles to adjust to change and it takes him a long time to build therapeutic trust. [9] Mr. Ugwunze testified that, if given an absolute discharge at this time, Mr. Bilodeau’s risk of violent re-offending would increase to at least moderate and might actually be higher. [10] The Board found that “the evidence before us is quite clear and given the severity of the index offence and [Mr. Bilodeau’s] propensity for extreme unprovoked and unpredictable violence it is imperative that he needs to be actively monitored by a therapeutic team that knows him well”. [11] The Board did not misapprehend that there was only one incident of violence. While there was only one incident of violence, it was extreme and unprovoked. The risk of violence if Mr. Bilodeau does not maintain therapeutic levels of medication is clear. In its reasons, the Board noted the evidence of medication compliance under the forensic outpatient team, while also noting Dr. Ugwunze’s evidence that, while compliant, Mr. Bilodeau has, at times, expressed not wanting to take his medications. The Board’s review of the evidence included that in July 2018, and on prior occasions, Mr. Bilodeau returned to the hospital at his own request and that Mr. Bilodeau has been adhering to his relapse prevention program as best he can. But the Board also considered the risk that a transition, such as to the ACTT, poses. [12] Contrary to counsel for Mr. Bilodeau’s assertion, the Board did not signal that Mr. Bilodeau would always present a significant threat to the safety of the public, given the nature of his mental illness and the gravity of the index offence. Rather, the Board accepted the evidence of Dr. Ugwunze of the need for a strong therapeutic relationship to manage that risk and that Mr. Bilodeau had not yet developed such a relationship outside of the forensic team. [13] Accordingly, the appeal is dismissed. “David Watt J.A.” “Alexandra Hoy J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Blake (Re), 2021 ONCA 230 DATE: 20210412 DOCKET: C68353 Feldman, Lauwers and Trotter JJ.A. IN THE MATTER OF: Glenroy Blake AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant Dena Bonnet, for the respondent, Attorney General of Ontario Michele Warner, for the respondent, Person in Charge of the Centre for Addiction and Mental Health Heard: February 19, 2021 by video conference On appeal from the disposition of the Ontario Review Board, dated May 1, 2020, with reasons dated May 7, 2020. Feldman J.A.: A. Overview [1] The appellant’s annual hearing before the Ontario Review Board (the “Board”) on April 29, 2020 was one of its first hearings using zoom technology because of the COVID-19 pandemic that was declared a public health emergency in March 2020. Although the appellant had received a conditional discharge disposition in the past, he was under a detention order at the time of the 2020 hearing. He sought another conditional discharge. The Board concluded that the necessary and appropriate disposition was to continue the detention order, by which, at the time, the hospital required reporting to the Centre for Addiction and Mental Health (“CAMH” or the “Hospital”) in-person five days a week and frequent urine testing for substance abuse. [2] The appellant submits on this appeal that the Board erred in law and in fact by failing to grant a conditional discharge. The appellant argues that the Board erred by 1) failing to consider the significant progress the appellant had made over the last eight months while detained in hospital; 2) failing to give sufficient consideration to the effect of the COVID-19 pandemic on the safety of the appellant and others confined or potentially confined in a congregate hospital setting; 3) giving too much effect to the potential for a restriction of liberty (“ROL”) hearing to protect the liberty interest of the appellant, in light of the Hospital’s unacceptable failure to release the appellant following the Board’s last ROL disposition; and 4) finding that the Mental Health Act , R.S.O. 1990, c. M. 7, provisions would not be sufficient to return the appellant to the Hospital if it became necessary. [3] I would not give effect to the appellant’s submissions. However, if at any future hearing, there is a dispute regarding the proper interpretation and application of the Mental Health Act provisions that allow a hospital to detain a person and about the efficacy of those provisions in the context of a conditional discharge disposition, the Board should require the parties to provide a complete record and full argument. B. Background Facts [4] The appellant, aged 38 at the time of the hearing, was first hospitalized in 2006 for an instance of “First Episode Psychosis.” He was diagnosed with schizophrenia in 2010. His current diagnoses are schizophrenia, unspecified personality disorder, and substance use disorder. He has over 30 convictions as an adult, including for weapons-related offences, uttering threats, assault, and criminal harassment (typically targeting women who did not know him). In 2010, the appellant was found not criminally responsible (“NCR”) in respect of offences that occurred between August 2009 and March 2010. The offences were failure to comply with a recognizance, watching a dwelling house, failure to comply with probation, prowling by night, and carrying a concealed weapon. [5] Following the NCR finding in September 2010, the appellant was an inpatient at CAMH for two years. He was first discharged into the community in August 2012. He returned to the Hospital for one brief admission in June 2014, then again in November 2014, when he was placed on the secure unit under a hybrid order as a result of positive screens for cocaine as well as other issues (specifically, allegations of drug trafficking, of plans to buy a gun, and reports of gambling on hospital grounds). He was transferred to the general unit on September 8, 2015 and discharged to the community on January 7, 2016, but admitted again on January 19 following a positive screen for cocaine, which he denied, and discharged again on January 29. Following four positive screens for cocaine (which he again denied), he was admitted on August 25, 2016 and discharged on September 15, 2016. [6] On January 24, 2018, the appellant was granted a conditional discharge. He had one positive drug screen in February. He was admitted twice to the Hospital, once at his own initiative from March 30 – April 4, and a second time under the Mental Health Act Form 1 psychiatric assessment, as a result of threats to obtain a firearm and to harm two of his previous case managers. A “no-trespass” order was in place at CAMH against him, except for his scheduled appointments. [7] In November 2018, although the appellant was medication-compliant and not psychotic, he began to decline, missing appointments, failing to co-operate with the team or with the Board’s conditions, screening positive eight times out of ten between November 2018 and February 2019 for cannabis, and violating the no-trespass order on several occasions. Also, in that time period, four female CAMH staff members alleged that he had followed them. [8] As a result of this decline, the Hospital requested an early review of the conditional discharge disposition. On March 26, 2019, he was placed on a detention order that authorized his readmission to hospital if necessary. He was readmitted from July 11 to August 1, 2019 after screening positive for cannabis and cocaine. He required restraint and seclusion and was described as “a high risk for violence.” He was released from the Hospital on August 1, 2019, when he was discharged back into his residence in the community. On August 9, 2019, the Board convened a hearing to review the appellant’s ROL from July 11 to August 1. On August 15, 2019, the Board concluded that the appellant’s ROL had been warranted. [9] The appellant, however, was readmitted to the Hospital later in August after he again tested positive for cocaine, he missed appointments, he met with his case manager in an alleyway to give a urine sample, and then the next day was not reachable. [10] A second ROL hearing was held on October 9, 2019, and on November 4, 2019, the Board released a decision where the majority found that while his initial detention in hospital was warranted, the appellant’s continued admission was not. In reasons for that decision released January 14, 2020, the Board found that “his continuing admission is not warranted and is neither necessary nor appropriate.” Despite that finding, the appellant’s physicians did not discharge him to the community. The appellant’s lawyer advised this court that she had made repeated requests for a discharge between November 2019 and March 2020. After his March 2020 annual review was postponed until April 2020 due to COVID-19, the appellant was discharged on April 28, 2020 – the day before his hearing. During the period of extended detention, the appellant made significant progress in hospital. C. Decision of the board [11] The Board summarized its findings and reasons for its decision that the appellant remained a significant threat to the safety of the community, and that a detention order was the least onerous and least restrictive disposition for the appellant at para. 50 of its reasons: The Board finds that a detention order is necessary and appropriate. Mr. Blake's early hearing and two ROL hearings in 2019 attest to the ongoing risk he poses in the community. The early hearing in 2019 arose from reports of drug use and allegations that Mr. Blake had followed female staff from CAMH. Later in 2019 he was admitted twice, for reasons that included positive drug screens (i.e, including cocaine), as well as missed appointments and a refusal to attend or co-operate with the team. The Board is not hesitant to find that a detention order is necessary so that Mr. Blake can be re-admitted to hospital. The MHA is not a viable alternative because it is not adequate to protect public safety. The primary concern is Mr. Blake's pattern of drug use and disinhibited behaviour, which creates a risk, especially to women but also of weapon use and other criminal behaviour. This risk has crystallized in the community when Mr. Blake is compliant with medication, is not experiencing psychotic symptoms, and is not certifiable. Mr. Blake's two ROLs in 2019 confirm the pattern and the hospital's need for the authority of a detention order to readmit him. (1) Dr. Toguri’s evidence [12] The Board heard evidence from the appellant’s treating psychiatrist, Dr. Toguri. He advised that while the appellant was detained in hospital from September 2019 to the day before the hearing, April 28, 2020, he had received psychosocial and pharmacological treatment and one-to-one counselling as well as group programming to address his substance abuse problem. He advised that the appellant uses olanzapine as needed for calming, and that his long-acting injectible, aripiprazole, had been increased during this period. While in hospital, the appellant had had a positive change in his interactions with staff. He also had no positive drug screens. [13] Dr. Toguri explained that before the appellant could be discharged into the community, as had been ordered by the Board in November 2019, the Hospital had to co-ordinate with an outpatient team because of the requirement for a staff safety plan. They had implemented a “zero tolerance policy” for the appellant while in the community, which meant that any positive screen or non-compliance related to substance use or reporting would result in the appellant being readmitted to hospital. He had to report daily during the week with frequent urine tests, and his reporting had to be to the West Wing of CAMH in order to comply with the no-trespass order that had been imposed on him for the safety of female staff. There was no COVID-19 outbreak in the West Wing. [14] Dr. Toguri gave his opinion that a detention order was necessary and appropriate because the Hospital required the authority to return the appellant to its care. He stated that the Mental Health Act does not address the risk that the appellant’s personality and substance abuse issues could lead to behavioural problems without any change to his mental status. Those problems can manifest with disinhibited behaviour and following women in the community. [15] With respect to the applicability of the Mental Health Act , Dr. Toguri stated that with substance abuse the appellant could become a risk to the public, even without the return of his psychosis. In those circumstances, admission to the Hospital under Box B would not be available (since the appellant has capacity), and he would likely not meet the strict criteria of “serious harm” in Box A either. (2) The Board’s findings on the Hospital’s failure to discharge [16] The Board expressly addressed the issue of the Hospital’s failure until April 28, 2020, to implement the Board’s order of November 2019 following the ROL hearing, where the Board held that the appellant’s detention in hospital was no longer necessary or warranted. The Board stated that “[t]he clear purpose of s. 672.81(2.1) [of the Criminal Code , R.S.C. 1985, c. C-46] is to protect NCR offenders from restrictions of their liberties that are not authorized by their disposition, and to ensure that such ROLs are subject to review by the Board,” and found that the appellant’s “prolonged admission to hospital contrary to a Board Decision is unacceptable.” It also found that the Hospital was effectively in breach of the Board’s order. [17] The Board explained that its orders are not self-executable, and that it is up to the Hospital to accept the guidance of the Board. The Board did not accept the explanations provided by the Hospital that it misunderstood the Board’s November 2019 decision and that the appellant’s discharge was very complex. The Board noted in respect of the appellant’s discharge plan, that over the eight month period when the appellant was detained in hospital, there were no reports of positive screens or drug use concerns, and that counsel for the Hospital had described the period as the “longest period of stability” for the appellant. (3) The Board’s 2020 disposition [18] Counsel for the appellant’s position was that the appellant should receive a conditional discharge. She submitted that the zero tolerance policy, in the context of the COVID-19 pandemic, would subject him to detention at the first sign of trouble and place him at enormous risk of contracting the disease. This would be “risk enhancing” rather than “risk diminishing,” especially since the appellant was agreeable to both a residence requirement and a s. 672.55(1) consent treatment provision as part of his conditional discharge. She also submitted that in crafting the appellant’s disposition, the Board should take full account of the COVID-19 pandemic, and endeavour to protect his safety and the safety of others by limiting congregate settings for mental health patients. [19] In response to the first submission, the Board found that in light of the appellant’s history with drug use and disinhibited behaviour since November 2018, without a detention order that allows the Hospital to readmit him if necessary, the risk to the public safety would be significant. The detention order was therefore necessary to satisfy the statutory mandate of the Board to treat the safety of the public as a paramount consideration. [20] The Board also addressed the COVID-19 issue. It rejected jurisprudence regarding the effect of COVID-19 on bail decisions as of limited relevance, because while the safety of the public is the second bail criterion, it is the Board’s paramount consideration under s. 672.54 of the Criminal Code . The Board quoted with approval the following statement from the bail decision in R. v. Williams , 2020 ONSC 2237, at para. 125: “The law continues to require that accused who pose a substantial risk of endangering the public, like Mr. Williams, must remain in custody, even during the COVID-19 pandemic”. [21] Additionally, the Board consulted the CAMH statement on the pandemic, and after considering the appellant’s circumstances, concluded that a detention order would not entail an inappropriate risk of exposure to COVID-19. There were no outbreaks at the time in the West Wing where the appellant would be required to report, meaning that any potential risk was from readmission, which he could avoid by complying with the conditions of his detention. If the appellant were to be brought back into hospital under the detention order, an ROL hearing would be triggered after seven days, and the admission would only be warranted under s. 672.81(2.1) when it is “the least onerous and least restrictive alternative in the circumstances.” D. Issues [22] The appellant’s position is that the Board erred by failing to grant a conditional discharge as the least onerous and least restrictive disposition order, and raises four grounds of appeal in support: 1. The Board erred by failing to take account of the significant progress the appellant made while detained in hospital. 2. The Board erred by failing to give sufficient consideration and effect to the presence of the COVID-19 pandemic and the danger it poses to the appellant and others who are confined or required to attend at the Hospital. 3. The Board erred by relying on the ROL hearing as a procedural safeguard for the appellant, when the Hospital had unacceptably failed to implement the Board’s previous order that his ongoing admittance to the Hospital was not warranted or necessary. 4. The Board erred by relying on the evidence of Dr. Toguri that the Mental Health Act provisions would not apply to the appellant when his psychosis remained under control, but his risk to public safety arose from his personality disorder and substance abuse. E. Analysis (1) Did the Board err by failing to take account of the significant progress the appellant made while detained in hospital? [23] The appellant submits that the Board did not take his recent positive progress while in hospital into account in arriving at its disposition. I do not accept this submission. The Board fully outlined the appellant’s history and the testimony of Dr. Toguri, whose opinion was based on his knowledge of the appellant’s history and his progress while under treatment in hospital. Dr. Toguri’s opinion was that despite the appellant’s progress, the detention order was necessary, and that the current requirement for a zero tolerance compliance regime was also necessary to ensure that the appellant would not use substances that had the effect of causing his mental condition to deteriorate and increasing his risk of being a danger to the public. (2) Did the Board err by failing to give sufficient consideration and effect to the presence of the COVID-19 pandemic and the danger it poses to the appellant and others who are confined or required to attend at the Hospital? [24] The appellant submits that in response to the COVID-19 pandemic, it is the Board’s obligation to depopulate the Hospital as a congregate living setting, to the extent possible, in order to protect both the appellant’s and the public’s safety from the pandemic. To that end, he submits that the low threshold for readmission under the zero tolerance policy that the Hospital would implement as part of his detention order would needlessly expose him and others to the risk of contracting the disease. This submission was supported at the hearing by the affidavit of Dr. A. Orkin, a public health physician, and a written statement from the Bazelon Center for Mental Health Law. In other words, to protect the appellant as part of the public as well as to protect the rest of the public from COVID-19, the Board should have imposed a conditional discharge with appropriate conditions as the least onerous and least restrictive disposition, and that it erred by not doing so. [25] In my view, the Board made no error in its approach to its obligation, including its consideration of how to factor in the COVID-19 pandemic. The Board was acutely aware of the pandemic, and its effect on the Hospital and on the whole of society. It considered the evidence presented by the appellant as well as the CAMH policy on COVID-19 and the current conditions at the Hospital. It noted that the reporting requirement for the appellant was to the West Wing where there was no outbreak. The Board also addressed its primary statutory obligation to protect the safety of the public, in the context of the appellant’s history of substance abuse and disinhibited behaviour. The Board recognized the need to be able to return the appellant to the Hospital because he could become dangerous to women as he had in the past. The Board concluded, at para. 55: In light of Mr. Blake’s history since November 2018 – as discussed above – the Board finds that the risk to public safety would be significant absent a detention order granting the hospital authority to re-admit Mr. Blake, if necessary. As noted above, the Board is required, under its statutory mandate, to treat the safety of the public as a paramount consideration. [26] A similar argument regarding the effect of COVID-19 on the Board’s obligations was made to the Board and to this court, and rejected, in the recent appeal in Scalabrini (Re) , 2021 ONCA 212. There, Fairburn A.C.J.O. emphasized, at para. 45, that it would be contrary to the statutory scheme for the Board to impose a conditional discharge “in circumstances where a detention order is called for, only to make it more difficult for the appellant to be returned to the hospital in circumstances where he is decompensating and in need of stabilization.” She added the important observation, at para. 46, that it will be for the healthcare professionals who administer the detention order “to keep COVID-19 in mind at the time that decisions are being made about whether to intervene in the context of decompensation, and, if so, how,” including using strategies other than re-hospitalization. In this case, as the respondent Attorney General points out, the Board’s order only required the appellant to report “once per month, or as required” giving the Hospital the flexibility to reduce the reporting conditions from five days per week if that should become appropriate. [27] The Board in this case also made two important observations when weighing the risk to the appellant of being exposed to COVID-19 by his potential readmission to the hospital. The first was that the appellant could avoid readmission to hospital by complying with his reporting requirements and abstaining from substance use. The appellant had been compliant while in hospital. It was a fair expectation that he would remain so in order to be able to remain in the community. The second, which will be discussed in further detail below, was that the appellant had the procedural safeguard of an ROL hearing requiring the Board to re-consider his admission to hospital after seven days. (3) Did the Board err by relying on the ROL hearing as a procedural safeguard for the appellant, when the Hospital had unacceptably failed to implement the Board’s previous order that his ongoing admittance to the Hospital was not warranted or necessary? [28] The Board’s second observation was that the appellant had the protection of s. 672.81(2.1) of the Criminal Code , which requires the Board to hold an ROL hearing after seven days to ensure that the appellant would be returned to the community as soon as possible. The appellant objects that in light of the Hospital’s recent failure to abide by the order of the Board following an ROL hearing, this was a hollow observation. [29] I do not agree. The Board strongly reprimanded the Hospital in its reasons for failing to abide by the Board’s order following the ROL hearing, and made its expectations for future compliance abundantly clear. By adding that the ROL gives the appellant further protection from any unwarranted extended stay in hospital, and therefore exposure to COVID-19, the Board was reinforcing its message to the Hospital, and its confidence that the Hospital would not be in breach in the future. I would endorse the Board’s reprimand and its approach. (4) Did the Board err by relying on the evidence of Dr. Toguri that the Mental Health Act provisions would not apply to the appellant when his psychosis remained under control, but his risk to public safety arose from his personality disorder and substance abuse? [30] In this case, the appellant had a history of remaining medication-compliant in respect of his injectable medications and keeping his psychosis under control, but then decompensating and becoming dangerous as a result of cocaine or cannabis use. [31] The appellant objects that when deciding whether the Mental Health Act committal provisions would be sufficient to bring him back to hospital for breach of a condition of discharge, the Board relied on what his counsel alleges was erroneous testimony from Dr. Toguri that the Mental Health Act provisions cannot be used to detain a person for substance abuse where there is no manifestation of psychosis. [32] The appellant submits that as an expert tribunal, the Board should have understood the proper interpretation and application of the Mental Health Act . Counsel added, in reply submissions, that when Dr. Toguri was asked questions by one of the psychiatrist Board members during the hearing, the Board member referred to language used in a previous version of the Mental Health Act that no longer applies, and thus called into question its own expertise. [33] The appellant submits that, contrary to the evidence of Dr. Toguri, the applicable Mental Health Act provisions that allow a person to be detained in prescribed circumstances can apply to substance abuse, and therefore could be used in the appellant’s circumstances to bring him back to hospital if he were to decompensate. The appellant also relies on the fact that he consented to a treatment clause under s. 672.55 of the Criminal Code , which he submits would allow readmission to the Hospital for treatment under a conditional discharge disposition. [34] The issue of the extent to which the Mental Health Act provisions may be of sufficient efficacy that they may be used effectively in the context of a conditional discharge disposition to return a decompensating person subject to the disposition to hospital, and keep him or her in for treatment as required, has been raised in appeals to this court in a number of cases over the last twelve years: see, for example, R. v. Breitwieser , 2009 ONCA 784, 99 O.R. (3d) 43, at paras. 7-18; R. v. Lamanna , 2009 ONCA 612, 252 O.A.C. 280, at paras. 14-17; Young (Re) , 2011 ONCA 432, 273 C.C.C. (3d) 512, at para. 26; Coburn (Re) , 2016 ONCA 536, at para. 19; Munezero (Re) , 2017 ONCA 585, at paras. 4-9; Marchese (Re) , 2018 ONCA 307, 359 C.C.C. (3d) 408, at paras. 19-23; Valdez (Re) , 2018 ONCA 657, at paras. 21-24; Leger (Re) , 2018 ONCA 1035, at paras. 9-14; Negash (Re) , 2018 ONCA 179, at paras. 10-13; Esgin (Re) , 2019 ONCA 155, at paras. 19-21; Davies (Re) , 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 33-39; Ahmadzai (Re) , 2020 ONCA 169, at paras. 22-24; Yunus-Ali (Re) , 2020 ONCA 669, at paras. 10-12; and Williams (Re) , 2021 ONCA 90, at paras. 19-22. [35] These cases make it clear that in deciding whether a detention order is required and is the least onerous and least restrictive disposition, the Board must consider the committal provisions of the Mental Health Act as one of the available mechanisms for securing the person’s attendance at hospital for breach of a discharge condition. However, in order to do that, the Board must have an accurate understanding of how the committal provisions of the Mental Health Act operate. [36] Ms. Szigeti, who is an expert in mental health law, has argued that both the treating psychiatrist and one of the Board psychiatrists did not have that accurate understanding of the Mental Health Act . However, neither this court, nor the Board, can be in a position to rule on that submission without a full record. Such a record could include expert evidence from a legal expert in mental health law, expert evidence from specialist psychiatrists with significant experience with the committal provisions of the Mental Health Act , as well as legal briefs on behalf of the appellant, the Hospital and the province. [37] In this case, the Board, which had only the evidence of Dr. Toguri on this issue, was entitled to accept and act on that evidence. However, in a future case where the efficacy of the Mental Health Act committal provisions is going to be a disputed issue before the Board, it will be incumbent on the Board, as an inquisitorial body, to require the parties to place a sufficient evidentiary and legal record before it, to enable it to determine the issue in the context of supporting its disposition as the least onerous and least restrictive. F. Conclusion [38] For these reasons, I would dismiss the appeal. Released: April 12, 2021 “K.F.” “K Feldman J.A.” “I agree. P. Lauwers J.A.” “I agree. Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Bogue v. Miracle, 2021 ONCA 278 DATE: 20210430 DOCKET: C68596 Benotto, Miller and Trotter JJ.A. BETWEEN Glenn Bogue Applicant (Respondent) and Andrew Clifford Miracle a.k.a. Sir Andrew Miracle , Andrew Clifford Maracle III a.k.a. Andy Maracle, Smokin’ Joes Respondents ( Appellant ) Ian J. Collins, for the appellant Andrew Miracle Kenneth H. Page, for the respondent Glenn Bogue Robert J. Reynolds and Mike Pretsell, for Lisa Maracle Sexsmith and Virginia Maracle Heard: April 21, 2021 by video conference On appeal from the order of Justice Stanley J. Kershman of the Superior Court of Justice, dated October 11, 2019. REASONS FOR DECISION [1] The appellant, Andrew Clifford Miracle (“Andrew”), had been involved in a dispute with his son, the respondent, Andrew Maracle III (“Andy”). The dispute involved the joint ownership of Smokin’ Joes, a store in the Tyendinaga Mohawk Territory near Belleville. Andrew and Andy agreed to arbitration. Andrew entered into a retainer agreement with the respondent Glenn Bogue to act for him on the arbitration. The contingency agreement provided that Bogue would receive 25% of the amount awarded. [2] On November 24, 2016, the arbitrator decided that Andy owed Andrew $11,486,283.00. The arbitration award was subsequently made into an order at Andrew’s request. Andy was required to transfer his interest in Smokin’ Joes to Andrew. Andrew now has possession of Smokin’ Joes. [3] Lisa Maracle Sexsmith and Virgina Miracle own and operate Smokin’ Speedway, a gas station. Andy was a one-third owner of Smokin’ Speedway before he transferred his ownership share to Lisa and Virginia. Lisa and Virginia are not directly affected by the order but obtained status as respondents out of concern that Bogue will seek a receivership order or garnishment order against them. [4] Andrew has paid Bogue only $12,500.00. Bogue sought the appointment of a receiver to realize upon the debt for his benefit and Andrew’s other creditors. [5] Kershman J. granted the order pursuant to s. 101 of the Courts of Justice Act , R.S.O. 1990, c. C.43. [6] Andrew alleges that the application judge erred because: (i) he had no authority to make a final order for a receiver; (ii) there was no money owed to Bogue for fees on the contingency; and (iii) the final order for a receiver contravenes the Indian Act , R.S.C. 1985, c. 1-5, ss. 29, 89, which prohibits the enforcement by a non-status Indian against the assets of an Indian situated on a reserve. He relies on Borden & Elliot v. Temagami First Nation , [2009] 3 C.N.L.R. 30 (Ont. S.C.); Mitchell v. Peguis Indian Band , [1990] 2 S.C.R. 85; and Tyendinaga Mohawk Council v. Brant , 2014 ONCA 565, 121 O.R. (3d) 561. [7] In our view, the third ground of appeal is a threshold issue which must be determined before the appeal can be heard. [8] It is not clear that this issue was raised in the court below. Andrew acknowledges that he did not raise this issue before the application judge. But he says it was argued by Virginia Maracle and Lisa Maracle Sexsmith. Although the application judge touched on the issue as it related to Virginia Maracle and Lisa Maracle Sexsmith, he failed to make the findings necessary to conduct appellate review of this aspect of his decision, especially as it relates to Andrew. For example, Andrew says Bogue is not an Indian under the Act . Bogue says that there is no evidence on the record about his status under the Act , as this argument was not raised in the court below. In addition, he submits that, if the provisions of the Indian Act apply, that Andrew has waived his rights to protection under it. [9] We cannot consider this appeal without a determination from the court below on the issue raised with respect to the Indian Act . As a general rule, this court will decline to decide new issues on appeal: R. v. Roach , 2009 ONCA 156 , 246 O.A.C. 96, at para. 6. [10] For this reason, we return the matter to the application judge to determine the effect of the appellant ’s submission with respect to the Indian Act . [11] We award no costs. “M.L. Benotto J.A.” “B.W. Miller J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Booth v. Bilek, 2021 ONCA 128 DATE: 20210302 DOCKET: C68248 Strathy C.J.O., Brown and Miller JJ.A. BETWEEN Clifford Alan Booth Applicant (Respondent) and Michelle Yvette Marie Bilek Respondent (Appellant) Paul D. Slan, for the appellant Shawn M. Philbert, for the respondent Heard: February 8, 2021 by video conference On appeal from the order of Justice Gisele M. Miller of the Superior Court of Justice, dated March 10, 2020. REASONS FOR DECISION OVERVIEW [1] The parties, who were married, separated after four years and four months of cohabitation. There are no children of the marriage. [2] The sole issue on this appeal is the equalization of net family property. Section 5(6) of the Family Law Act , R.S.O. 1990, c. F.3 (“the Act”) permits the court to vary a spouse’s share of net family property “if the court is of the opinion that equalizing the net family properties would be unconscionable”. [3] Here, the trial judge declined to award the appellant an amount that would equalize the parties’ net family properties under s. 5(1) of the Act, given: (1) the extent to which the appellant’s net family property derived from gifts from the respondent; (2) that a full equalization payment would be disproportionate to the relatively short period of cohabitation, and (3) the parties’ respective financial contributions to the property they owned during their marriage. [4] The trial judge awarded the appellant $10,627.45, or 10% of the full amount that would equalize the parties’ net family properties, namely $106,274.49. The appellant had already received approximately $200,000 from the sale of the matrimonial home. [5] There is no dispute that the trial judge correctly identified the governing law. She considered appropriate factors under the legislative provision permitting a variation of share, as well as the relevant case law. [6] The appellant argues, however, that the trial judge erred in concluding that: (1) full equalization would be unconscionable under s. 5(6) of the Act; and (2) 10% of the full equalization payment would be just and equitable. The appellant argues in the alternative that an unequal division of 87% would be appropriate, tracking the length of the marriage. [7] As explained below, we do not agree that the trial judge erred either in finding that full equalization would be unconscionable, or in her exercise of discretion in setting the appropriate payment at 10% of the amount that would fully equalize the parties’ net family properties. ANALYSIS (a) Unconscionability [8] The trial judge concluded that an award of full equalization would be unconscionable, per s. 5(6) of the Act, considering: (1) the extent to which the appellant’s net family property derived from gifts from the respondent; (2) the disproportion between full equalization and the duration of cohabitation; and (3) the fact that the respondent was almost the sole financial contributor to the property owned by the parties during the marriage. [9] The trial judge found that the appellant had benefitted financially from the comparatively short marriage. The appellant received $199,302.87 as half of the proceeds of sale of the matrimonial home, despite having made no direct financial contribution to its purchase. Although the appellant contributed $16,000 to the cost of renovating the first matrimonial home, those funds had come from the sale of her condominium, which in turn had been entirely financed by the respondent before their marriage. The appellant had used the balance of the proceeds of sale of the condominium (approximately $33,000) to pay off her personal debt. The trial judge also found that the appellant had benefitted from the gift of wedding and engagement rings from the respondent, worth in excess of $87,000. [10] The trial judge found that the difference between the parties’ respective net family properties at separation was attributable almost entirely to the growth of the respondent’s investments over the course of the marriage. The trial judge also noted that the respondent had not made any contributions to these investments during the marriage, meaning that none of the family income earned during the marriage had been used to finance them. The trial judge also found that at the time of trial, the respondent was 69 years old, retired and in addition to CPP and OAS, was living solely off the income generated by his investments. The appellant was 46 and had become self-supporting. [11] The trial judge correctly observed that the threshold for unconscionability under s. 5(6) of the Act is high and not satisfied by a finding of mere unfairness: Serra v. Serra , 2009 ONCA 105, 93 O.R. (3d) 161, at paras. 47-48. The high bar for unconscionability precludes trial judges from undertaking a minute parsing of the parties’ relative contributions to the marriage. It also promotes the goal of certainty in family law disputes. [12] For the vast majority of cases, s. 5(1) sets the default rule that upon marriage breakdown, the spouse whose net family property is the lesser of the two net family properties is entitled to equalization. This presumption can only be displaced where equalization would be unconscionable, as assessed using the criteria set out in s. 5(6) and guided by the purpose articulated in s. 5(7). [13] Section 5(6)(e) of the Act specifically identifies that a period of cohabitation less than five years is relevant to whether full equalization may be unconscionable. This promotes certainty about equalization for marriages longer than five years. It also provides notice to parties who have been married for less than five years that a court may take a closer look at whether equalizing would be unconscionable in the specific circumstances of a shorter marriage. [14] We do not agree that the trial judge erred in concluding that equalizing the parties’ net family properties would be unconscionable on the facts as she found them. She considered the relevant criteria, applied them to the facts before her, and came to a reasonable conclusion. The trial judge did misapprehend the appellant’s evidence of when she returned to the work force, which the respondent concedes. The appellant returned to full-time work in the last year of the parties’ marriage, and not after the parties had separated, as the trial judge found. Nevertheless, this error was not overriding. It did not bear on the factors that led the trial judge to conclude that equalization would be unconscionable. In particular, it did not bear on the trial judge’s finding that over the course of the relatively short marriage, the appellant made little contribution to the acquisition and maintenance of the matrimonial home (or other family assets), and received a sizable benefit from its sale. [15] It is also relevant that the trial judge found that the appellant was much better off financially than she was at the beginning of the marriage, ‘with little if any financial contribution on her part’, while the respondent had become dependent for his living expenses on income from investments made prior to the marriage. (b) Unequal division [16] Having concluded that full equalization would be unconscionable, the trial judge ordered the respondent to pay the appellant 10% of the full amount. [17] The appellant argues that the trial judge did not explain how she arrived at the figure of 10%, and that the reasons in this respect prevent meaningful appellate review. [18] Furthermore, the appellant argues that the trial judge did not give appropriate weight to the length of the marriage. She contends that the trial judge ought to have applied a formula that pro-rates the equalization payment according to the length of cohabitation. As the parties cohabited for 52 months, the appellant argues that any unequal division should be calculated at 87% of full equalization (52/60 months), which would entitle the appellant to $92,458.80. [19] We do not agree that the trial judge made any error in the exercise of her discretion. Although applying a mathematical formula based on the length of the marriage provides the benefit of certainty, neither the Act nor relevant case law requires the trial judge do so. As this court held in Gomez v. McHale , 2016 ONCA 318, 79 R.F.L. (7th) 305, at paras. 11-12: In several cases, courts have looked at the actual period of cohabitation (e.g. 48 months) and then fixed an unequal division of net family property using that period as a percentage of the five year statutory period, i.e. 48/60 = 80 [percent])…. Although a mathematical formula may be of assistance in some cases, we do not think that the motion judge erred by not applying it in this case . He did what s. 5(6) of the FLA requires. He looked carefully at the backgrounds of both parties, determined that an equal division would be “unconscionable”, and fixed what he regarded as a reasonable figure. We see no error in the motion judge’s approach. [Citations omitted; emphasis added.] [20] Similarly, it was not an error for the trial judge to reason as she did, and not to apply the mathematical formula proposed by the appellant. Contrary to the appellant’s argument, the trial judge’s conclusion was neither unreasoned nor unjustified. Paragraph 37, which contains a bare statement of the trial judge’s conclusion, is not the whole of the analysis and must not be read as though it were unconnected to the preceding paragraphs that first recite the trial judge’s factual findings and then analyze the parties’ obligations using the criteria set out in s. 5(6). The trial judge’s ultimate conclusion – that the appellant is entitled to 10% of full equalization – was a reasoned conclusion flowing from the findings that preceded it.  Her findings give an ample basis for understanding why she choose not to apply a mathematical formula, as was done in Zheng v. Xu , 2019 ONSC 865, 23 R.F.L. (8th) 436. The facts of that decision, although involving the dissolution of a marriage of similar duration, is dissimilar in many other relevant respects. Unlike in Zheng , the appellant’s only financial contribution to the matrimonial home (or any other family property) came from property that she had first received as a gift from the respondent. To have applied the time-weighted approach in this case would have required the trial judge to ignore the relevant differences between the two cases. DISPOSITION [21] The appeal is dismissed. Costs of the appeal are awarded to the respondent in the amount of $20,000 inclusive of HST and disbursements. “G.R. Strathy C.J.O.” “David Brown J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Bourke v. Davis, 2021 ONCA 97 DATE: 20210217 DOCKET: C68969 Feldman, Tulloch and Nordheimer JJ.A. BETWEEN Darcy Bourke Applicant (Appellant) and Jennifer Davis Respondent (Respondent) Michael J. Stangarone, for the appellant Richard A. Noll, for the respondent Heard: February 4, 2021 by videoconference On appeal from the order of Justice David A. Broad of the Superior Court of Justice, dated December 16, 2020, with reasons reported at 2020 ONSC 7667. Feldman J.A.: A. INTRODUCTION [1] The parties are the divorced parents of two boys aged six and four. The respondent mother is remarried to an American man who lives in Washington State, U.S.A. and is employed with Microsoft Corporation. While the new husband was able to work in Ontario for a period of time, in December 2020, he was obliged to return to Washington for his work. The respondent and her new husband recently had a baby girl together. [2] This is an appeal from a decision following a trial that allowed the respondent mother to move with the two boys to Washington. The trial judge ordered significant periods of in-person access to the appellant. He also ordered joint custody but with ultimate decision-making authority to the respondent. [3] Following the decision of the trial judge, the respondent made plans to travel with the boys to Washington. The appellant sought and received a stay of the order pending the appeal of the trial judge’s decision. The hearing of the appeal was expedited. As a result, the boys have remained in Ontario with the appellant pending the outcome of the appeal. B. Factual Background (1) Marriage and divorce [4] The parties were married on June 22, 2012 and had two sons who are now six and four years old. The parties separated in 2017 and eventually divorced on August 27, 2018. [5] The appellant is a transgender woman. She made the decision to transition from male to female following the birth of the parties’ second son. (2) Post-separation arrangements [6] The children have always resided in Kitchener, Ontario. After the parties’ separation in 2017, the children remained with the respondent in the matrimonial home, and the appellant moved to her mother’s house in Moffat, Ontario where she resided for two months before going to live with friends in Breslau, Ontario. Since July 2020, the appellant returned to residing with her mother in her house in Moffat. [7] From the beginning, the children had access visits with the appellant. The schedule, which began with only Sunday afternoon visits, increased over time to include overnight visits from Friday to Sunday on alternate weekends and one midweek non-overnight visit. During the period of August to October 2018, when the appellant underwent and recovered from her transition surgery, access visits were largely interrupted. However, by November 2018, the previous schedule had resumed. The appellant had the children for a full week in each of July and August 2019. The respondent also offered the appellant additional time from December 31, 2019 to January 5, 2020. [8] Due to the COVID-19 pandemic and the subsequent school shut-down in the spring of 2020, the appellant’s mid-week afternoon access visits expanded to become overnight access visits. When the children returned to school in September 2020, these overnight visits were discontinued, and the previous schedule was re-instated. [9] The trial judge referred in his reasons to “parenting time” records placed in evidence by the respondent, and noted that the respondent had offered the appellant numerous extra visits, and that the appellant had missed a number of these scheduled visits. The records were largely not disputed by the appellant. (3) Respondent’s relationship with her new spouse [10] The respondent met her current husband, Bradley Davis, on-line in March 2017. He lived in Redmond, Washington and worked for Microsoft. He was divorced and had a young son who lived with his ex-wife in San Antonio, Texas. He has a shared custody/access arrangement with her regarding his son. [11] The respondent and Mr. Davis began to spend one extended long weekend together per month, including with Mr. Davis’s son on a number of occasions. When Mr. Davis was transferred to San Antonio, he was able to travel frequently to Ontario to visit the respondent and her children. The respondent and Mr. Davis were married on December 14, 2018. [12] Mr. Davis was transferred back to Redmond in April 2019, and was allowed to live for two weeks in Washington and two weeks in Ontario. On December 20, 2019, the respondent and her children spent ten days with Mr. Davis in Redmond. [13] With the onset of the COVID-19 pandemic in February 2020, Mr. Davis arranged to work remotely from Kitchener, and obtained a Canadian work visa. However, that visa expired on December 31, 2020 and could not be extended. [14] The respondent and Mr. Davis also now have a daughter, born in April 2020. C. application for custody [15] In her original application, the appellant sought joint and shared custody of the children on a 2/2/3 schedule, but no interim order changing the then current arrangement. In response, the respondent asked for sole custody of the children, an order allowing her to move with them to the United States, and an interim order confirming the current arrangement. Both parties agreed to an investigation by the Office of the Children’s Lawyer (“OCL”), which was conducted beginning in July 2019 with the report delivered in January 2020. [16] The OCL investigator, Mr. Glory To, interviewed both parties and observed them with the children at their respective homes. He spoke to the children but because of their young age, he received no input from them regarding custody and access, other than that they were happy with both parents. He also spoke to Mr. Davis, as well as to the appellant’s mother who lives with the appellant and helps with the children. [17] Mr. To recommended that: · The respondent should be given sole custody of the children, but with the requirement that she provide advance notice to the appellant of any major decisions regarding the children. · The children should not be relocated to Washington. He agreed that the respondent’s plan for the children in Washington was well thought out and researched, including significant access visits with the appellant both in Ontario and in Washington, but he believed that frequency of visits was more important than length of visits with the access parent, and that it would be difficult for the appellant to be involved with the children’s education, health and religion if they resided in Washington State. · The children have one overnight access visit with the appellant once a week and every other weekend. · The appellant continue to receive psychiatric counselling because of her past mental health issues. · Both parties receive professional guidance to help the children accept the appellant’s gender change. D. THE TRIAL JUDGE’S DECISION [18] In lengthy and very thorough reasons, the trial judge reviewed the evidence, including that of Mr. To, and the positions of the parties. He also reviewed the legal principles in detail, including the guiding principles under the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), as well as under the Children’s Law Reform Act , R.S.O. 1990, c. C.12, regarding custody and access, and the Supreme Court of Canada decision in Gordon v. Goertz , [1996] 2 S.C.R. 27, regarding mobility orders. (1) Review of the legal principles [19] The trial judge noted that Gordon was the pre-eminent authority on the issue of mobility and residency, and summarized the relevant governing principles set out by the Supreme Court, at paras. 49-50, as follows: 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia : (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [20] The trial judge also referred to the British Columbia Court of Appeal decision in Hejzlar v. Mitchell-Hejzlar , 2011 BCCA 230, 18 B.C.L.R. (5th) 128, at paras. 24-27, for the four important principles that are to be applied in cases where the custodial parent proposes to relocate with the children against the wishes of the access parent: (a) while subsection 16(10) of the Divorce Act provides that the court must consider maximizing contact between the child and parent, the same subsection makes it clear that maximizing contact is not an absolute principle, and is only to be pursued within the limits of that which is consistent with the best interests of the child; (b) barring an improper motive for the proposed move, there must be an attitude of respect for the custodial parent/or primary caregiver. This means, in part, the party seeking to move need not prove the move is necessary, although any degree of necessity, such as for income-earning reasons, may bear upon the best interests of the child; (c) the authorities generally do not favour the status quo as a “default position” as such an approach reinserts into custody discussions a presumption which is contrary to the instructions in Gordon v. Goertz to assess each case individually, and is contrary to the principle that presumptions are inappropriate in custody cases and detract from the individual justice to which every child is entitled; and (d) courts in Canada have discouraged reliance by a judge on any expression by the parent who is seeking to move that he or she will not move if the child cannot accompany him or her, as it places the parent in a “classic double bind.” [21] On the same issue, the trial judge also quoted from the decision in Thompson v. Drummond , 2018 ONSC 1975, at para. 47-11, as follows: [I]f the primary caregiver plans to move and has indicated that maintaining the status quo is off the table, the best interests analysis cannot focus on comparing the effect on children if they are permitted to relocate with the primary parent versus maintaining the status quo with that parent in the current location. The courts have indicated that approaching the issue in this manner ignores a key component of the Gordon test, namely the effect of removing the child from the care of their primary caregiver after that parent moves ( McAlpine v. Leason , 2016 ABCA 153 (Alta. C.A.); leave to appeal refused Leason v. McAlpine , 2016 CarswellAlta 2158 (S.C.C.); Spencer v. Spencer , 2005 ABCA 262 (Alta. C.A.), at paras. 15 and 19; Christmas v. Christmas , 2005 ABCA 213 (Alta. C.A.), at para. 5; MMG v. JAS , 2017 ABCA 209 (Alta. C.A.), at para. 23). (2) Factual findings and analysis [22] In approaching the issues before him, the trial judge determined to first decide the issue of custody, and then to proceed to the question of mobility. (a) Custody [23] To make the custody determination, the trial judge made a number of findings. First, he found that there was a reasonable measure of communication and cooperation between the parties regarding decisions about the children, including their medical and dental care, additional access time for the appellant, education issues, and the arrangement of events such as birthday parties. The trial judge noted that he was not required to “apply a standard of perfection in assessing the parties’ ability to communicate and work together. It [was] sufficient if the necessary cooperation [was] workable and adequate.” He ultimately concluded that the parties had the ability to make decisions respecting the best interests of the children. In so doing, he rejected Mr. To’s conclusion to the contrary as not supported by the evidence. [24] Based on the evidence the trial judge observed and accepted, he found that an order for joint custody would be in the children’s best interests because it would manifest the appellant’s important role in their lives. [25] The trial judge next addressed the related issue of whether final decision-making authority should rest with one parent or the other, and determined that the issue should be deferred pending a determination of the mobility question. Relying on references from two Manitoba Court of Appeal decisions in Lamont-Daneault v. Daneault , 2003 MBCA 111, 177 Man. R. (2d) 235, which quoted from Sawatzky v. Sherris , 2002 MBCA 143, 170 Man. R. (2d) 51, the trial judge looked at the factors to be applied when considering the conferral of final decision-making authority in a joint custody situation. He agreed that although many factors will be relevant, because the parent with primary care and control will ordinarily have the greater responsibility for the children’s upbringing and will have to implement the decisions, that parent should have the final decision-making authority. (b) Mobility [26] The third issue was the mobility question, i.e. whether the respondent could move with the children to Washington State. The trial judge agreed with the conclusion of Mr. To that the respondent has been and continues to be the primary caregiver of the children. As such, her reasons for wanting to move with the children were to be given “great respect and the most serious consideration” by the court: see Gordon , at para. 48; Porter v. Bryan , 2017 ONCA 677, 6 R.F.L. (8th) 41, at para. 11. [27] The trial judge found that the respondent had carefully researched the practicalities of the proposed move in a child-focused manner, as well as its implications for the children and for their immediate and extended family. This included options for school, as well as the economic, cultural, recreational and social characteristics and amenities in the greater Seattle area. Her proposed plan to maintain the children’s relationship with the appellant was practical and realistic, with blocks of time throughout the year designated for visits to Ontario. In addition, the respondent indicated that the appellant and her family would be welcome to visit the children in Washington and to stay at the Davis’s home. The respondent had identified a list of extended family members of Mr. Davis who would provide a network of support for the children and her family. She had also considered the significant economic benefits of Mr. Davis’s employment for the family, as well as the available employment opportunities for herself. [28] The appellant’s position before the trial judge was that the respondent did not need to move because Mr. Davis could find a way to move to Ontario, or in the alternative, that the respondent would not move without the children and therefore the status quo should be maintained in order to foster maximum contact with both parents. [29] The trial judge rejected these submissions. He found that in cases such as this one, where there was no suggestion that the respondent’s purpose for the move was to improperly deprive the appellant of access to the children, it was not the court’s role to second guess the decision of the primary parent on what is best for the family. The trial judge accepted that the respondent intended to move to Washington, with or without the children. As a result, the status quo was not an option. [30] The trial judge acknowledged and agreed with Hejzlar , at para. 27, that courts should not put the moving parent in a “double bind” by relying on an expression by the moving parent that they would stay if the children were not allowed to move, in order to justify an order that maintains the status quo. Similarly, it would be improper for a court to speculate that the moving parent would not move without the children and then impose the status quo, relying on that speculation. [31] The trial judge then addressed the maximum contact principle, observing that a move by the respondent, with or without the children, will mean that their contact with one of the parents was inevitably going to be reduced. He referred to s. 16(10) of the Divorce Act , which directs the court to take into consideration the willingness of the potential custodial parent to facilitate maximum contact with the access parent in order to achieve that goal for the best interests of the children. The trial judge accepted that the respondent was willing and determined to facilitate the appellant’s contact with the children and to foster a healthy relationship between them, and that the respondent’s plan was intended to maximize that contact commensurate with the children’s education schedule. [32] The trial judge also addressed the potential disruption to the children’s lives by moving, and put weight on their young ages as minimizing the effects of such a move. He noted that they would have to move to a different school if they were ordered to live with the appellant in Moffat, Ontario. With respect to the children’s connection to the appellant’s extended family, the trial judge found that it is common for people today to live at great distances from each other, and to adapt to the situation by using more electronic communication. As a countervailing consideration, he noted that the children have a new extended family with Mr. Davis’s son and their baby sister. [33] Furthermore, the trial judge found that the parenting plan proposed by the appellant, being premised on maintaining the status quo, was not realistic. The appellant did not present a plan to be the primary caregiver for the children once the respondent relocated to Washington. Specifically, she did not outline her plans for the children’s schooling, as well as their before- or after-school care. She also did not explain how she would foster the children’s relationships with their sister and the respondent. [34] The trial judge rejected Mr. To’s recommendation on the mobility question. The trial judge recognized that Mr. To’s recommendation against the children’s relocation was similarly premised on the respondent remaining in Ontario. Mr. To appreciated that the respondent had been the primary caregiver since the parties’ separation, but did not address the best interests of the children if the respondent were to move without them. Mr. To recommended that the best interests of the children would be better served with maintaining the status quo, where the respondent would have sole custody, and the appellant would have frequent visits, rather than long ones. The trial judge noted that Mr. To offered no evidence to back his opinion that the frequency of visits was more important than the length of the visits, and that on cross-examination, Mr. To conceded that longer visits could compensate for lack of frequency. [35] Because the issue had been raised, though not pressed in argument, the trial judge addressed the appellant’s fears that as a transgender person, the “cultural differences” between the United States and Canada may negatively impact the children. The trial judge acknowledged that the appellant’s fears were sincere and strongly held. However, since the appellant did not lead any evidence on how transgender people experience discrimination in the two jurisdictions, he could not find that her concerns would affect the best interests of the children. [36] Finally, the trial judge addressed the potential effect of the COVID-19 pandemic on the parties’ ability to give the contemplated generous access to the appellant. The trial judge took judicial notice of the fact that given the two countries’ travel restrictions, the parties would not be able to visit the children as freely. However, he concluded that his primary focus had to be on the long-term best interests of the children. [37] For all of the above reasons, the trial judge concluded that allowing the children to move with the respondent, with generous and liberal access to the appellant, would be in the children’s best interests. (c) Final decision-making authority [38] The final issue, for the purposes of this appeal, was whether as part of the joint custody award, the respondent should have final decision-making authority, given that she would have primary care of the children in Washington. The trial judge rejected the concern that the effect of giving one parent final decision-making authority would be to undermine the reality of the joint custody order. He agreed with the Manitoba Court of Appeal in Lamont-Daneault , that such an order made sense in the circumstances of this case because the respondent “will have the greater responsibility for the children’s upbringing and for implementing [the] decisions made for their well-being”. The trial judge noted that there was still a benefit to the joint custody order as it aligned with the children’s perception that decisions about them would be made collaboratively between their parents. The trial judge also signalled that the use of the final decision-making authority should be a last resort by stating that the respondent would have final decision-making authority, “if necessary after meaningful consultation”. [39] I attach the 22 paragraph terms of the trial judge’s final order as an appendix to these reasons. E. Stay pending appeal [40] The appellant appealed the decision of the trial judge and sought a stay pending this appeal. A stay was granted on January 15, 2021 and the hearing of the appeal was expedited and heard on February 4, 2021. In the interim, the children have remained in Ontario with the appellant. F. Issues on the appeal [41] The appellant submits that the trial judge erred in law by: 1) relying on the respondent’s position that she would be moving to Washington with or without the children to determine the best interests of the children; 2) failing to give effect to the maximum contact principle, and instead focusing on the respondent’s position that she would move with or without the children and the reasons for the move; 3) rejecting the recommendation of the OCL investigator against the relocation because he failed to consider the scenario where the respondent would move without the children; and 4) giving final decision-making authority to the respondent. G. Analysis [42] Appellate courts are to give considerable deference to the decisions of trial judges on custody and access matters. An appellate court is not to overturn a custody order in the absence of a material error, a serious misapprehension of the evidence, or an error in law: Segal v. Segal (2002), 26 R.F.L. (5th) 433 (Ont. C.A.), at para. 1. (1) Did the trial judge err in law by relying on the respondent’s position that she would be moving to Washington with or without the children to determine the best interests of the children? [43] The appellant asserts that the trial judge erred in his analysis when he failed to consider the amendments to the Divorce Act which will come into force on March 1, 2021 and will include s. 16.92(2). The provision, once amended, will read as follows: In deciding whether to authorize a relocation of the child, the court shall not consider if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. [44] While this provision was not in force at the time of the trial, and is not yet in force, it is a fair submission by the appellant that s. 16.92(2) reflects Parliament’s view about the court’s approach to the moving parent’s intentions when considering the best interests of the child. [45] The Government of Canada website provides the following explanation for the s. 16.92(2) amendment: Parents seeking to relocate with their children are sometimes required to answer in court the difficult question of whether or not they would proceed with a relocation if they were not permitted to bring their children. A response of “I won’t relocate without my child” may be interpreted as evidence that the proposed relocation is not sufficiently important and should not be permitted. A response of “I would relocate without my child” may be interpreted as evidence that the parent is not sufficiently devoted to the child. This provision would prohibit courts from considering this question – or the parent’s response – if raised in the context of the court proceedings. This will assist in focusing on the specific legal issue before the court. [46] Parliament’s explanation of s. 16.92(2) reflects the “classic double bind” that has been recognized in the jurisprudence for many years. When the parent who wants to move with the children is asked whether they will stay in their current location should the mobility order not be made, the parent is immediately placed in a “lose-lose” situation. If they answer that they would stay with the children, it allows the court to fall back on the status quo and force the parent to remain when that result may not be in the best interests of the child. By contrast, if the parent says that they would go regardless, it allows the court to draw an adverse inference about that parent’s dedication to the children. The problematic double bind has led the courts to repeatedly discourage judges from relying on a parent’s representations about whether they will or will not move without the children: see, for example, Spencer v. Spencer , 2005 ABCA 262, 371 A.R. 78, at para. 18; Hopkins v. Hopkins , 2011 ABCA 372, at para. 6; and Hejzlar , at paras. 24-27. [47] The appellant argues that despite citing the appropriate cases on the double bind, the trial judge nonetheless placed “undue weight” on the respondent’s intention to move in his analysis of whether to grant the children’s relocation. However, I do not believe that is what occurred in this case. [48] The respondent was clear with the court that she had made the very difficult decision to go to Washington with her husband and baby, whether the children could go with her or not. She put forward three alternative parenting plans: 1) the children move with her to Washington and the appellant moves to British Columbia for closer and easier access; 2) the children move with her to Washington and the appellant stays in Ontario; and 3) she moves to Washington and the children remain with the appellant in Ontario. There was no plan presented where the respondent would remain in Ontario. In other words, the respondent made the trial judge aware that the status quo was not an option. For her part, the appellant’s plan only contemplated that the respondent would remain in Ontario with the children and that they would share custody on a 2/2/3 arrangement. [49] The respondent explained to the trial judge why she made the very difficult decision about the move. From an employment and financial point of view, it was not feasible for the family to remain in Ontario, and live on her salary alone, and if her husband gave up his job with Microsoft, he would lose not only his salary but the generous benefits in which she and the children as well as the baby were enrolled. [50] In these circumstances, the trial judge was not only entitled but was obliged to accept the fact that the respondent would be moving to Washington with or without the children and that the status quo was not an option for the court to consider. Because the appellant did not put forward her own parenting plan for the children if they remained in Ontario without the respondent, the trial judge was limited in the analysis he could conduct for the children’s best interests if the order was not made. [51] In his consideration of the mobility issue, the trial judge was always focused on the best interests of the children. In particular, he considered the research the respondent had conducted and the plans she had made for the children in Washington, including the family situation there, the economic benefits, and the maintenance of maximum contact with the appellant through visits as well as electronic means. He acknowledged the “double bind” issue that courts have wrestled with, where the moving parent’s motives for, and sincerity about moving has put that parent in a difficult position, but pointed out that in this case, the respondent was clear she would move either way. He rejected the appellant’s position that the respondent was “holding the court up to ransom” by saying she would move regardless of the outcome on the mobility application. The trial judge noted that this submission was simply another way of saying that the respondent was acting in bad faith, when there was no evidence to support that position. [52] I see no error in the trial judge’s treatment of the respondent’s intention to move to Washington. To the contrary, he assessed the reality of the available options for the children and used their best interests as the yardstick by which to measure the most suitable option for them. (2) Did the trial judge err by failing to give effect to the maximum contact principle? [53] Again, the trial judge addressed the issue of the maximum contact principle specifically and in detail. His analysis makes it clear that maximizing contact with the appellant was a significant aspect of the respondent’s parenting plan that allowed him to approve the children’s move to Washington. He recognized the reality that since the respondent would be moving, whether the children moved with her or stayed in Ontario, their contact with one of the parents would be limited. [54] The trial judge noted that since the appellant’s parenting plan was premised on the status quo, it did not explain how the children’s relationships with their new sister and the respondent would be maintained after the respondent’s move. By contrast, the respondent’s plan sought to “maximize the children’s contact” with the appellant. The trial judge accepted that the respondent “had demonstrated a determination to foster the maintenance of a healthy and beneficial relationship” between the appellant and the children. [55] Paragraph 6 of the order prescribes the children’s visits with the appellant in Ontario in February, March, April, May, July, August, October, November and December, as well as further dates as agreed by the parties. The respondent also testified that the appellant and her family would be welcome at the respondent’s home in Washington. The trial judge accepted this evidence. [56] As well, paragraph 9 of the order stipulates that there will be “liberal” electronic communication, which, while not a substitute for in-person access visits and live-ins, will certainly assist in maintaining the relationship between the appellant and the children. [57] The reality is that even in normal times, one parent’s move to another country creates many logistical difficulties for either that parent or the other parent visiting the children. The pandemic creates many more challenges. Having said that, the order demonstrates that the maximum contact principle, commensurate with the best interests of the children, was implemented by the trial judge. (3) Did the trial judge err by rejecting the recommendation of the OCL investigator against the relocation? [58] The appellant submits that the trial judge erred by failing to give weight to Mr. To’s recommendation against the relocation of the children, and in particular, to his evidence that it was in the children’s best interests to have regular and frequent contact with the appellant, given their young ages. [59] The appellant analogizes the case at hand to this court’s decision in Young v. Young (2003), 63 O.R. (3d) 112 (C.A.), where the court found that the trial judge had failed to take into account the OCL investigator’s recommendations. That was not what occurred in this case. As Laskin J.A. states in Young , at para. 40, the recommendations are not binding on the trial judge: see also Prokopchuk v. Borowski , 2010 ONSC 3833, 88 R.F.L. (6th) 140, at para. 116. Rather, the trial judge must give the report serious consideration and weigh the evidence accordingly: Maharaj v. Wilfred-Jacob , 2016 ONSC 7925, at para. 67. Here, the trial judge carefully considered Mr. To’s recommendations and accepted some while rejecting others. [60] For example, the trial judge accepted Mr. To’s observations that the respondent was the primary caregiver to the children following the parties’ separation. However, he rejected Mr. To’s conclusion that the parties were not able to get along and make decisions regarding the children. The trial judge found the evidence at trial to be to the contrary, and based on that finding, he awarded the parties’ joint custody of the children. In so doing, he did not follow Mr. To’s recommendation that the respondent be given sole custody, but awarded joint custody instead. [61] The appellant also submits that the respondent’s parenting plan #3, i.e. that she move to Washington and the children remain in Ontario, was not presented to Mr. To, and therefore, the trial judge should not have faulted him for failing to address that situation in his recommendations. [62] I do not agree. To the extent this issue was explored at trial, the respondent acknowledged that the parenting plan she provided to Mr. To was not the same as the one she provided at trial. She testified that she had told the appellant about her desire to move to the United States as early as 2017; that she had started working on the parenting plan in 2018; and that she had evolved the plan in response to Mr. To’s concerns about the frequency of visits with the appellant. To the extent that anyone at trial was concerned about a deficiency in the OCL report, that issue should have been addressed either with Mr. To when he testified, or with the trial judge. [63] As it was, the trial judge gave careful consideration to the OCL report and used it in his determination of the issues. (4) Did the trial judge err by giving final decision-making authority to the respondent? [64] The appellant submits that the trial judge erred in law by awarding joint custody but granting final decision-making authority to the respondent. She argues that because the trial judge accepted that the parties communicate well on issues surrounding the children, there should have been no final decision-making order imposed. [65] I would also reject this submission. The appellant has put forward no case law to support the position that the trial judge’s approach amounted to an error of law. To the contrary, the trial judge referred to case law in support of his observation that the parent with primary care and control and the greater responsibility for the children’s upbringing should, in some circumstances such as in this case, have final decision-making power. He also referred to Newstead v. Hachey , 2018 ONSC 1317, at para. 68, where the trial judge noted that giving final decision-making authority to one parent may appear to weaken the effect of the joint custody order, but it is important for children to see that decisions about them are being made collaboratively by both their parents. [66] The appellant referred to the case of Segal , as an authority for her submission, but in that case, the trial judge gave no reasons for awarding final decision-making power to one spouse. That is what constituted an error. [67] In this case, the trial judge provided an explanation for his decision to award the respondent final decision-making authority. He granted the final decision-making power only “if necessary after meaningful consultation”, showing his confidence in the parents that they will collaborate together in the best interests of their children. H. COVID Issues [68] For the above reasons, I would dismiss the appeal on the grounds raised. [69] However, I am cognizant of two circumstances that have had a significant impact since the trial and the decision of the trial judge. The first is that as a result of the stay imposed in order to expedite this appeal, the children have remained in Ontario in the care of the appellant. The second is that as a result of the pandemic, further travel restrictions have been announced or implemented by the government that will affect the ability of the parties and the children to travel back and forth between Washington and Ontario in the immediate future. [70] As a result, it is appropriate to amend para. 6 of the trial judge’s order that sets out the access travel schedule. In her testimony at trial, the respondent agreed that longer access visits may be needed to compensate for quarantine obligations. [71] In order to compensate the appellant and the children for anticipated difficulties in travelling back and forth for the next couple of months, the children may remain in Ontario with the appellant until March 21, which is identified at para. 6(b) of the order as the end of a long weekend that fits with the school schedule in Washington. This longer period of access with the appellant will help to compensate for the likely inability to conduct other access visits over the next number of months until travel restrictions are eased. [72] On that last point, it may be that the April 10-18 visit provided in para. 6(c) of the order will not be feasible this year because of travel restrictions. I will not remove it from the order, but leave it to the parties to make the decision in accordance with the then current restrictions and the best interests of the children. I. Conclusion [73] I would dismiss the appeal, except for the amendment of para. 6 of the order for 2021 only, which will now provide that the children may remain in Ontario with the appellant until March 21. [74] With respect to costs, the appellant was successful on the stay application, and the respondent was successful on the appeal, subject to the access variation for 2021. As a result of the divided success, I would make no order as to costs. Released: “K.F.” February 17, 2021 “K. Feldman J.A.” “I agree. M. Tulloch J.A.” “I agree. I.V.B. Nordheimer J.A.” APPENDIX 1. The title of proceedings is amended to change the name of the respondent to Jennifer Davis. 2. The applicant Darcy Bourke and the Respondent Jennifer Davis shall have joint custody of the children of the marriage, namely Ronan William Bourke, born June 19, 2014 (male) and Hudson Jeremy Bourke, born March 27, 2016 (male). 3. The parties shall consult and confer with each other regarding all major educational, medical or religious decisions affecting the children. In the event the parties are unable to reach an agreement after having a meaningful discussion, the respondent shall make the final decision, keeping the applicant informed. 4. The respondent shall be permitted to relocate with the children of the marriage, namely Ronan William Bourke, born June 19, 2014 and Hudson Jeremy Bourke, born March 27, 2016 to Washington State, United States. 5. Until the children relocate to Washington State, United States, the applicant shall have access to the children as follows: a.       Alternating Wednesday and Thursday evenings from 5:30 p.m. until 7:30 p.m. Wednesday evening access visits shall be in weeks ending with the weekend access visits referred to below, while Thursday access visits shall be during the alternate weeks; and b.       Alternate weekends from Friday from the end of the school day (3:30 p.m.) until Sunday at 6:00 p.m.; c.       The Christmas school break 2020 shall be shared equally by the parties, as agreed upon in a manner consistent with manner in which the parties shared time with the children in 2018 and 2019; Or such other times as may be agreed upon by the parties in writing. 6. Once the children relocate to Washington State, United States, the applicant shall be entitled to exercise the following parenting time with the children in Ontario, Canada: The children shall be in the care of the applicant, in accordance with the following schedule, which aligns with the children’s school vacation calendar: a.       Winter Break each year: In 2021, dates are February 13th – 21st; b.       Extended long weekends each year: In 2021, dates are March 18th – 21st and May 28th – 31st c.       Spring Break each year: In 2021 dates are April 10th – 18th d.       Summer: Two weeks in early summer break and two weeks at the end of summer break; e.       Extended long weekend each year in October; f.        Extended long weekend each year in November; g.       One week at Christmas each year alternating the week; and h.       Such other and further dates as agreed upon by the parties. 7. Commencing in 2021, the respondent shall provide the applicant with a copy of the children’s school calendar and the proposed parenting time for the full year including summer, extended long weekends, Christmas, winter break and spring break as set out in paragraph 6 above. 8. The applicant shall be permitted to exercise additional parenting time with the children in Washington State, or in British Columbia. 9. The applicant shall exercise liberal telephone, video-call, Skype, and email contact with the children. The parties shall both be flexible with regard to the children’s schedule and availability for said telephone and/or video access. The applicant’s family shall be permitted to exercise telephone, video-call, Skype or email contact with the children, in the event the applicant is unable to do so. 10. The respondent shall be permitted to reasonably contact the children during the applicant’s time with them via video-call, Skype or telephone. 11. The respondent shall set up a OneDrive account for the children in order to share frequent photos, videos, school calendars, school events, and information directly with the applicant and her family. 12. The children shall fly to Ontario from Washington, non-stop via Air Canada or another agreed upon airline, departing from Seattle-Tacoma Airport and landing at Toronto Pearson Airport. Until such time as the children are of the age to utilize the Unaccompanied Minor Service offered by the airlines, the applicant shall be responsible for travelling with the children, if applicable. The parties shall share equally in any costs associated with utilizing the Unaccompanied Minor Service. 13. The respondent shall obtain and pay for Nexus passes for the children to expedite the process at the airport and to ensure easy cross-border entry to assist in facilitating the applicant’s parenting-time with the children. 14. The costs associated with the applicant’s access with the children shall be offset as the applicant’s child support obligations for the children. 15. a. The respondent may apply for, renew and/or replace the children's passports without the consent of the applicant. b. The parties shall cooperate to facilitate one another’s international travel with the children which shall include but not be limited to the following: i. executing travel consent letters and/or other documentation as may be required; ii. exchanging the children’s identification; and iii. adjusting the children’s regular residential schedule as may be reasonably necessary. c. If either party travels with the children to a destination other than between the homes of the parties, they shall advise the other party of the location and dates of travel. In the event that this travel is for a period in excess of 72 hours, they shall provide the following additional details: i. If the children are travelling by air, the name of the airline, the dates and times of the flights and the flight numbers; ii. Full details of where the children will be staying, including names and addresses of any hotels or other accommodations; and iii. Emergency contact telephone numbers for the children. 16. The respondent shall pay for all of the Section 7 Special or Extraordinary expenses for the children. 17. There are no arrears of child support and/or Section 7 Special or Extraordinary expenses owed by the applicant to the respondent. 18. The respondent shall advise the applicant in writing of the names, addresses and telephone numbers of all third parties involved with the children including but not limited to all educational professionals and health care professionals (teachers, principals, tutors, physicians, psychologists, social workers, counsellors, dentists, etc.). 19. If required by the children’s educational or health care professionals, the respondent shall provide written permission to these professionals to release information directly to the applicant. 20. The applicant may directly contact all third parties involved with the children, namely, Ronan William Bourke, born June 19, 2014 and Hudson Jeremy Bourke, born March 27, 2016 and shall be entitled to complete access to any information regarding the children, including and not limited to, all educational professionals and health care professionals. 21. The applicant and the respondent shall maintain the children of the marriage, Ronan William Bourke, born June 19, 2014 and Hudson Jeremy Bourke, born March 27, 2016 on any extended health and medical benefits available to them through their employers. 22. The applicant and the respondent shall at all times keep each other apprised of their current contact information including but not limited to address, telephone number and email address.

COURT OF APPEAL FOR ONTARIO CITATION: Bouragba v. Conseil Scolaire de District Catholique de l’Est de l’Ontario, 2021 ONCA 195 DATE: 20210326 DOCKET: M52311 (C69089) Lauwers J.A. (Motion Judge) BETWEEN Tarik Bouragba et. al. Plaintiffs (Appellants/Moving Parties) and Conseil Scolaire de District Catholique de l’Est de l’Ontario et. al. Defendants (Respondents/Responding Parties) Ahmed Bouragba, acting in person Charlotte-Anne Malischewski, for the responding parties Paul Marshall Robert, Richard Lewko and Ontario College of Teachers Jeffrey Claydon, for the responding parties Ministry of Education and Denis Chartrand Andrea Baldy, for the responding parties Ottawa-Carleton District School Board and Kevin Gilmore Joel Rocque, for the responding parties Conseil Scolaire de District Catholique de l’Est de l’Ontario , Conseil des Écoles Publiques de L’Est de L’Ontario , Ottawa Catholic School Board , Stephane Vachon, Diane Lamoureux, Norma McDonald, Lyne Racine, Annie Sicard Heard: March 26, 2021 by video conference REASONS FOR DECISION [1] The moving parties seek three elements of relief: 1. An order that the Superior Court of Justice in Ottawa permit the transcriptionist to release to the moving parties transcripts that have already been prepared relating to two hearings, the first before Master Fortier on September 24, 2019 and the second before Justice Marc Smith dated November 23, 2020; 2. An order extending the time within which the moving parties must perfect this appeal until 14 days after the transcripts have been received, and the order of Justice Smith is settled; and 3. Costs of this motion. [2] The responding parties do not oppose the motion except for the request for costs. [3] There is no evidence in the record before me that explains why the Superior Court has not released the transcripts. There is a process by which a judicial officer is permitted to review the transcript for accuracy and the transcriptionist is then required to endorse the accuracy of the transcript, in one form or another, depending on the alterations made by the judicial officer, if any. Since the process is well known, I see no reason not to direct the Superior Court to complete its review of the transcripts and authorize their release to the moving parties upon payment for the transcripts expeditiously. I also direct the local Superior Court office to provide a compact disc with the audio recording of the relevant proceedings to the moving parties when they pay for and receive the transcripts. The local Superior Court office will at the same time provide a copy of the compact disc to the other parties and to the Registrar of the Court of Appeal for Ontario. I took this approach in Collins v. Ontario (unreported) which was noted in Collins v. Ontario , 2017 ONCA 317, at para. 12. [4] I extend the time for the moving parties to perfect the appeal until 14 days after the later of the moving parties’ receipt of the transcripts and the settled order of Justice Smith. [5] As for costs, although the responding parties were late in advising the moving parties that the relief requested would not be opposed, I see no reason in this instance to award costs to the moving parties. Their essential problem in this motion is with the Superior Court, respecting which the positions of the responding parties play no role. [6] Finally, the moving parties seek relief relating to the settling of the order of Justice Smith. I have no jurisdiction over the settling of that order, which is due to be settled shortly in the ordinary process. [7] Nothing in these reasons is to be taken as agreeing that this court has jurisdiction over the appeal under the Courts of Justice Act , R.S.O. 1990, c. C.43. [8] So ordered. “P. Lauwers J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Bruno v. Dacosta, 2021 ONCA 225 DATE: 20210408 DOCKET: C66667 Lauwers, Brown and Nordheimer JJ.A. BETWEEN Paul Bruno, Martha Bruno , Mary Catherine Bruno, Paul John Bruno , and Jake Bruno under the age of 18 by his Litigation Guardian Martha Bruno Plaintiffs ( Respondents / Appellants by way of cross-appeal ) and Joshua Dacosta, Guy Gibson, Daniel Ashenden, Terry Empey, Her Majesty the Queen in the Right of Ontario Represented by the Ministry of Community Safety and Correctional Services , the Niagara Detention Center, Wendy Southall as the Chief of Police of the Niagara Regional Police Service, Police Officers Jane Doe and John Doe, the Niagara Regional Police Services Board, the Corporation of the Regional Municipality of Niagara and William Shilson Defendants ( Appellant / Respondent by way of cross-appeal ) Ian MacLeod and Robert Trenker, for the appellant Her Majesty the Queen in Right of Ontario Gregory P. McKenna and Sabrina L. Seibel, for the respondents Paul John Bruno, Martha Bruno and Jake Bruno Heard: August 28, 2020 by video conference On appeal from the judgment of Justice Paul R. Sweeny of the Superior Court of Justice, dated February 7, 2019, with reasons reported at 2019 ONSC 99, and from the costs decision dated February 26, 2020, with reasons reported at 2020 ONSC 1258. COSTS ENDORSEMENT [1] This court allowed the appeal by Her Majesty the Queen on the basis that the reasons for decision were insufficient to permit meaningful appellant review. We remitted the case to the Superior Court for trial by another judge. At the conclusion of the decision we invited written costs submissions. [2] The Crown seeks costs of the appeal in the all-inclusive amount of $25,000 and asks that the costs of the first trial be remitted to the judge hearing the new trial. [3] The respondents ask that there be no order for costs of the appeal or cross-appeal and that the costs of the first trial be remitted to the judge hearing the new trial. [4] We noted in the decision that the need for a new trial is “truly a regrettable outcome, particularly for the respondent who lacks the resources of the state.” In these circumstances we award no costs for the appeal, and direct that the costs of the first trial be remitted to the trial judge hearing the new trial. “P. Lauwers J.A.” “David Brown J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: C & K Mortgage Services Inc. v. Camilla Court Homes Inc., 2021 ONCA 58 DATE: 20210127 DOCKET: C68751 Strathy C.J.O., Huscroft and Roberts JJ.A. BETWEEN C & K Mortgage Services Inc. Applicant (Respondent) and Camilla Court Homes Inc. and Elite Homes Inc. Respondents (Respondents) Richard Macklin and Wei Jiang, for the appellant Yong Yeow Tan David Preger and David Seifer, for the respondent C & K Mortgage Services Inc. Eric Golden and Elsir Tawfik, for the receiver of the respondents Camilla Court Homes Inc. and Elite Home Inc. Heard by videoconference: December 7, 2020 On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated August 27, 2020, with reasons reported at 2020 ONSC 5071, 82 C.B.R. (6th) 289. COSTS ENDORSEMENT [1] The respondent C & K Mortgage Services Inc. is entitled to costs fixed in the amount of $20,000. The respondent Receiver is entitled to costs fixed in the amount of $7,500. Both amounts are inclusive of taxes and disbursements. “G.R. Strathy C.J.O.” “Grant Huscroft J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: C.C. v. J.B., 2021 ONCA 363 DATE: 20210528 DOCKET: C69223 Huscroft, Paciocco and Jamal JJ.A. BETWEEN C.C. Applicant/Responding Party/ Moving Party (Appellant) and J.B., P.B. and L.B. Respondents/Moving Parties/ Responding Parties (Respondents) Richard Niman and Beth Purdon-McLellan, for the appellant Alexandra Kirschbaum, for the respondent J.B. Katherine A. Cooligan, for the respondents P.B. and L.B. Heard: May 13, 2021, by video conference On appeal from the order of Justice Julie Audet of the Superior Court of Justice, dated December 10, 2020, with reasons reported at 2020 ONSC 7610. REASONS FOR DECISION [1] The appellant mother, C.C. (“mother”), and the respondent father, J.B. (“father”), are the parents of four children. On this appeal, the mother challenges the finding of the motion judge that the Ontario Superior Court has jurisdiction over the youngest child, who was born in the U.S. and has never been to Canada. The motion judge made this finding in granting temporary parenting orders regarding the four children in response to motions brought by the mother, the father, and the respondent paternal grandparents, P.B. and L.B. (“grandparents”). The mother does not dispute that the Ontario Superior Court has jurisdiction over the three older children but claims it lacks jurisdiction over the youngest child. [2] The background facts, which are complex, are detailed in the motion judge’s reasons. For present purposes , the essential facts may be briefly stated. [3] All four children were born outside Canada: the eldest three children were born in Asia and the youngest child was born in the U.S. When the mother was pregnant with the youngest child, she began an application in the Ontario Superior Court seeking orders under the Children’s Law Reform Act , R.S.O. 1990, c. C.12 (“ CLRA ”) and the Family Law Act , R.S.O. 1990, c. F.3, regarding her three children and her then-unborn fourth child. The court granted her temporary decision-making responsibility over the three older children but found it lacked jurisdiction over the then-unborn fourth child. With the court’s permission, the mother moved to the U.S., where she is a citizen and has family. The youngest child was born there. The mother and the four children continue to live in the U.S. [4] After the birth of the youngest child, the father brought an application for divorce in the Ontario Superior Court and then also sought temporary parenting orders regarding all four children. The mother later consented to the consolidation of the divorce proceeding with her application for parenting orders. [5] The mother also began a proceeding before a U.S. court for custody of the youngest child. In that proceeding, the U.S. court dismissed the father’s motion to decline jurisdiction, stating that it “does not decline to exercise its jurisdiction.” [6] The father and grandparents then brought the underlying motions for temporary parenting orders regarding all four children, relying on what is now s. 16.1 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), and ss. 21 and 72 of the CLRA . The mother brought a cross-motion to dismiss those motions. She filed a motion factum, sought an adjournment, and participated in the motions on the merits. [7] The mother raises several arguments challenging the motion judge’s finding that the court has jurisdiction over the youngest child. However, that issue can be resolved based on ss. 3 and 4 of the Divorce Act and the mother’s attornment to the court’s jurisdiction. [8] The court has jurisdiction over the subject-matter of the proceedings under ss. 3 and 4 of the Divorce Act because the father was “ordinarily resident” in Ontario for one year immediately preceding the commencement of the divorce proceedings. We thus agree with the determination of the motion judge that the Ontario Superior Court is a “court of competent jurisdiction” under s. 16.1 of the Divorce Act to make the parenting orders sought by the respondents. [9] The mother brought no motion challenging jurisdiction under r. 16(12) of the Family Law Rules , O. Reg. 114/99. Instead, she took steps in and argued the merits of the underlying motions. She therefore attorned to the court’s jurisdiction by “[taking] steps beyond merely contesting the jurisdiction of [the] court”: Lilydale Cooperative Limited v. Meyn Canada Inc. , 2019 ONCA 761, 439 D.L.R. (4th) 385, at para. 52; Kunuthur v. Govindareddigari , 2018 ONCA 730, 427 D.L.R. (4th) 120, at para. 18, leave to appeal refused, [2018] S.C.C.A. No. 449. [10] We thus see no error in the motion judge’s conclusion that the Ontario Superior Court has jurisdiction to make parenting orders regarding all four children, including the youngest child. [11] In this court, the parties raised forum non conveniens , which the motion judge mentioned in her reasons but is not reflected in the court’s order. The motion judge’s reasons stated that “it is not realistic to suggest that there could possibly be another forum more convenient to decide the best interests of [the youngest child] than the jurisdiction in which the best interests of her three older siblings are going to be assessed and determined”. She added that “[t]he evidence and analysis of which parenting arrangements are in [the youngest child’s] best interests are inextricably intertwined with the evidence and analysis relevant to the best interests of her siblings, and they should be decided together, in one court.” [12] Forum non conveniens is a separate determination to be made once jurisdiction simpliciter is established. The decision to raise forum non conveniens rests with the parties, not with the court seized of the claim. Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum. The burden is on the defendant to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff: Club Resorts Ltd. v. Van Breda , 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 101-3. [13] Here, forum non conveniens was not raised before the motion judge. The mother brought no motion asking the court to decline to exercise jurisdiction based on forum non conveniens and we were advised that this issue was not argued in the court below. Presumably, for that reason that the court’s order does not address forum non conveniens . The motion judge should thus not be taken as having decided the issue of forum non conveniens . [14] The appeal is dismissed. In all the circumstances, including the mother’s reliance on public assistance for her day-to-day subsistence, there shall be no order as to costs. “Grant Huscroft J.A.” “David M. Paciocco J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Campbell v. 1493951 Ontario Inc., 2021 ONCA 169 DATE: 20210319 DOCKET: C68588 Lauwers, Trotter and Zarnett JJ.A. BETWEEN Courtney Campbell Applicant (Appellant) and 1493951 Ontario Inc. and Tri-Echo Restaurants Inc. Respondents (Respondents) Zachary Parrott and Russell Bennett, for the appellant Raj Sharda, for the respondent 1493951 Ontario Inc. Ryan Wilson, for the respondent Tri-Echo Restaurants Inc. Heard: March 15, 2021 by video conference On appeal from the order of Justice Breese Davies of the Superior Court of Justice dated June 29, 2020, with reasons reported at 2020 ONSC 4029. REASONS FOR DECISION [1] The appellant, Courtney Campbell, appeals from the dismissal of his claim that his sublease of commercial premises in Brampton, Ontario (the “premises”) was terminated improperly, and from the dismissal of his request for relief from the forfeiture of his sublease. [2] Mr. Campbell commenced occupying the premises in January 2019, under what the application judge found was an oral sublease granted to him by the tenant of the premises, the respondent Tri-Echo Restaurants Inc. (“Tri-Echo”). [3] Tri-Echo’s lease required business conducted on the premises to comply with federal, provincial, and municipal law. The application judge found that, as a subtenant, Mr. Campbell was bound to comply with that obligation. [4] Mr. Campbell operated 1Tonamara Cannabis Boutique, a cannabis store, on the premises. He did so without either a licence or any valid exemption from the licensing requirements under the Cannabis Control Act, 2017 , S.O. 2017, c. 26, Sched. 1 and the Cannabis Licence Act, 2018 , S.O. 2018, c. 12, Sched. 2 . [5] In July 2019, the respondent 1493951 (“149”) purchased the property on which the premises were located and became the head landlord. [6] In August 2019, 149 gave notice that Tri-Echo was in breach of its lease because the premises were being used for the sale and distribution of cannabis without a licence. The notice gave 10 days to rectify the breach, failing which 149 would repossess the premises. Doing so would terminate Tri-Echo’s lease and, as a consequence, Mr. Campbell’s sublease. [7] Although the cannabis store continued to operate, 149 did not act on the notice until April 21, 2020. On that date, following a police raid of the premises, 149 changed the locks and retook possession, purportedly terminating the lease. 149 did not issue a fresh notice of default before doing so. 149 accepted payments of rent between the August 2019 notice and the April 2020 retaking of possession. [8] The application judge rejected Mr. Campbell’s argument that 149 was not entitled to terminate the lease (and thus the sublease) and retake possession in April 2020 without issuing a fresh notice and giving further time to cure the default. She found that, following the August 2019 notice, 149 had been misled by information provided by Mr. Campbell that he had a valid exemption from licensing requirements and thus could lawfully run a cannabis store on the premises. She found that 149 did not act earlier to terminate the lease in reliance on that misleading information. She concluded that it was only when the police advised 149 in April 2020 that no licence or exemption existed for the premises that 149 came to understand that it had been misled. The application judge held that 149 was entitled at that point to act on the original notice, which had clearly indicated that 149 was not prepared to continue the lease if the cannabis store was operating illegally. [9] Mr. Campbell argues that the application judge’s conclusion that 149 was entitled to act on the August 2019 notice was unjustified. He submits that it rests on the premise that Mr. Campbell intentionally misled 149. Although he concedes (at least in this court) that he had no licence or exemption, Mr. Campbell argues that at the relevant time he believed he was entitled to an exemption and therefore did not intentionally mislead 149 when he provided information that he had a lawful exemption. He submits that the application judge should not have made a finding adverse to his credibility on an application. [10] We reject this argument. The application judge did not premise her conclusion – that 149 was not obligated to issue a further notice before retaking possession and terminating the lease – on a finding that Mr. Campbell had intentionally misled 149. Nor was it necessary for her to make such a finding. [11] The issue before the application judge was whether, by reason of the delay in proceeding under the August 2019 notice and the acceptance of rent, 149 had waived the breach of lease referred to in that notice, thus requiring 149 to issue a fresh notice in April 2020. [12] A waiver involves a knowing relinquishment of rights. “ Waiver will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them” : Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co. , [1994] 2 S.C.R. 490 at para. 20. The application judge was entitled to find that since 149 was misled by Mr. Campbell into believing that an exemption existed for his business, the requirements for a waiver were not established and  the waiver argument could not succeed. Mr. Campbell was the source of the misleading misinformation. It did not matter whether he believed it. [13] Mr. Campbell also argues that, even if the lease was properly terminated in April 2020  (ending the sublease with it), the application judge erred in not granting relief from forfeiture. He contends that, in denying that relief, the application judge inappropriately relied on a finding that Mr. Campbell had provided intentionally misleading information to 149 about the existence of an exemption. [14] We also reject this argument. [15] The application judge was entitled to reject the request for relief from forfeiture based on the factors set out in Saskatchewan River Bungalows at para. 32. Those factors include the seriousness of the breach; the reasonableness of the defaulting party’s conduct; and, the disparity between the value of the forfeited property and the damage caused by the breach. The application judge considered each factor. Her rejection of the request for relief from forfeiture was not dependant on a finding that Mr. Campbell’s information to 149 was knowingly deceptive. [16] Further, the application judge was not required to accept the argument that relief should have been granted to allow Mr. Campbell to operate a non-cannabis business on the premises. She was entitled, based on the record before her, to reject the suggestion that he had, and would operate, a bakery business unconnected to the cannabis business. [17] For these reasons the appeal is dismissed. [18] The respondents are entitled to costs payable by the appellant in the sum of $6500 each, inclusive of disbursements and applicable taxes. “P. Lauwers J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Capone v. Fotak, 2021 ONCA 144 DATE: 20210305 DOCKET: M52116 (C68624) Fairburn A.C.J.O., Miller and Zarnett JJ.A. BETWEEN Carmela Maria Capone Applicant (Respondent) and Zoran Fotak Respondent (Appellant) Harold Niman and Jen-Yii Liew, for the applicant Gary S. Joseph, Brian Moher, and Vivian Li, for the respondent Heard and released orally: March 3, 2021 by video conference On appeal from the orders of Diamond J. of the Superior Court of Justice, dated September 4, 2020 and October 15, 2020 with reasons reported at 2020 ONSC 5278. REASONS FOR DECISION [1] The applicant, Carmela Maria Capone, moves to quash the appeal of the respondent, Zoran Fotak, from orders dated September 4 and October 15, 2020, made in family law proceedings that have been ongoing since 2013. [2] Over the course of the proceedings, numerous orders have been made. Ms. Capone alleges that Mr. Fotak is in breach of provisions of ten of those orders. [3] Mr. Fotak brought a motion, most recently amended in August 2020, to challenge the jurisdiction of the Superior Court. Ms. Capone brought a cross-motion that Mr. Fotak’s motion not be heard because he was in violation of court orders. [4] On September 4, 2020, the motion judge ordered that Mr. Fotak would have the opportunity to move for a stay of the ten court orders and that if he was successful on the stay motion, he would be permitted to proceed with his jurisdictional challenge. [5] On October 15, 2020, after a case conference held to settle the September 4, 2020 order, the motion judge clarified that he had not rendered a decision on the merits of the jurisdictional challenge and had not dismissed it. He had simply ordered that Mr. Fotak bring a stay motion as a condition of his jurisdictional challenge being heard. He specifically stated that he had made no determination of the effect, on the jurisdictional challenge, of any dismissal of the stay motion. [6] The orders of the motion judge are interlocutory, and no appeal lies from them to this court. They do not determine any substantive claim or defence: see Hendrickson v. Kallio , [1932] O.R. 675 (C.A.). They do not determine, one way or the other, the jurisdictional challenge and therefore are not final orders within the meaning of Hopkins v. Kay, 2014 ONCA 514 . [7] The appeal is therefore quashed. [8] As agreed to by the parties, Mr. Fotak shall pay costs to Ms. Capone in the sum of $10,000, inclusive of disbursements and applicable taxes. “Fairburn A.C.J.O.” “B.W. Miller J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Carroll v. Toronto-Dominion Bank, 2021 ONCA 38 DATE: 20210121 DOCKET: C68245 Tulloch, Miller and Paciocco JJ.A. BETWEEN Marian L. Carroll Applicant (Appellant) and The Toronto-Dominion Bank c.o.b. TD Bank Group, TD Waterhouse Private Investment Counsel Inc., TD Asset Management Inc. as Trustee of the TD Mutual Funds Trust and the TD Private Funds Trust Respondents (Respondents) Joseph Groia, David Sischy and Dawit Debssou, for the appellant Linda Fuerst and Erika Anschuetz, for the respondents Heard: November 18, 2020 by video conference On appeal from the order of Justice Cory A. Gilmore of the Superior Court of Justice, dated March 17, 2020, with reasons reported at 2020 ONSC 1629. Paciocco J.A.: OVERVIEW [1] Marion Carroll was formerly employed by the Toronto-Dominion Bank (“TD Bank”) as a highly placed manager. She was responsible for the compliance of a group of TD Bank’s subsidiaries with legal and regulatory obligations, and internal policies, relating to the management of mutual funds. [2] In that capacity, Ms. Carroll claims to have exposed regulatory non-compliance and breaches of mutual fund trusts by TD Bank’s subsidiaries. She contends that this misconduct unjustly enriched TD Bank as well as its subsidiaries (jointly, “TD”). She claims that TD has succeeded in suppressing the full extent of its wrongdoing and its enrichment, including by wrongfully dismissing her from her employment in 2014. [3] Within two years of her dismissal, in 2016, Ms. Carroll launched a wrongful dismissal lawsuit which is still pending. In 2018, she began making “whistleblower” complaints to TD officials and to government regulators about the misconduct she allegedly uncovered. In September 2019, approximately five years after her dismissal, Ms. Carroll also launched the civil proceedings that are the subject of this appeal. Specifically, she issued an application seeking orders that would result in the disclosure, discovery, and redress of financial irregularities and misconduct, if any, by TD relating to its role as Trustee of designated mutual funds. [4] The application was dismissed pursuant to r. 21.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 . The motion judge found that Ms. Carroll’s application could not possibly succeed because Ms. Carroll lacks standing to bring the application. Ms. Carroll now appeals that ruling. [5] For reasons that follow, I would dismiss Ms. Carroll’s appeal. I agree with the motion judge that Ms. Carroll required standing to bring the application, notwithstanding that the application relates to an alleged breach of trust. I also agree with the motion judge that Ms. Carroll lacks the standing required to maintain her application for any of the relief she seeks. MATERIAL FACTS [6] Between August 8, 2011 and October 20, 2014, Ms. Carroll was employed by TD as a Senior Manager, Compliance. In this position, she carried primary responsibility for overseeing compliance by certain TD subsidiaries with their legal and regulatory obligations and internal policies relating to the management of mutual funds. [7] She contends that during her employment she made persistent efforts, despite reprisals, to identify and redress regulatory infractions and trust breaches committed by TD in the administration of TD’s mutual fund products. Most significantly, she alleges that she discovered that TD unjustly enriched itself by more than $50 million by purchasing mutual fund units that were not in the best interest of unit holders in order to maximize undisclosed internal fees. She contends that her efforts ultimately required TD to self-report regulatory breaches that it had committed to the Ontario Securities Commission (“OSC”). [8] On October 20, 2014, while the OSC investigation was ongoing, Ms. Carroll was dismissed from her employment by TD. She attributes her dismissal to her efforts to expose and remedy TD’s misconduct relating to its mutual fund products. [9] Approximately two weeks after her dismissal, TD finalized a settlement of more than $14 million with the OSC. Ms. Carroll maintains that the settlement agreement understates the nature and extent of the wrongdoing, as TD misled the OSC by failing to make full disclosure. [10] In 2016, Ms. Carroll commenced a lawsuit for wrongful dismissal, which is unrelated to the current appeal. She has also taken steps to expose TD’s alleged malfeasance. In November 2018, four years after her dismissal, she sent a “whistleblower” complaint letter to the Chair of the Audit Committee and General Counsel of TD. Then, in September 2019, she sent “whistleblower” material to three bodies carrying regulatory responsibility relating to TD’s mutual fund enterprises: the OSC, the United States Securities and Exchange Commission, and the Office of the Superintendent of Financial Institutions. Finally, and of most relevance to this appeal, she launched a civil proceeding against TD, by way of application, that is structured to uncover and remedy the wrongdoing she alleges. [11] The relief Ms. Carroll claims against TD is set out in her Fresh as Amended Application, issued on October 18, 2019. Specifically, Ms. Carroll: · sought standing and leave to apply for a passing of accounts pursuant to statute and the common law; · requested a declaration, if necessary, that she has standing to apply to compel a passing of accounts to remedy the reputational, financial, and personal harm caused to her by TD’s misconduct; · asked for an order compelling TD to pass its accounts relating to designated mutual fund trusts, without notice to the unitholders who are the beneficiaries of those trusts; · sought the appointment of an independent accounting firm to conduct a full investigation of the trust accounts; · requested an order directing TD to disclose any breach of trust, financial irregularity or misconduct to beneficiaries and securities regulators relating to its role as trustee; · asked for an order indemnifying her from liability “relating to any breach of trust found through the passing of accounts”; · sought an order for an accounting and payment to beneficiaries of the trust for amounts equal to TD’s wrongful gains; and · requested a declaration that TD had been unjustly enriched. [12] In response, TD brought a successful r. 21.01 motion to dismiss the application. The motion judge ruled that it was plain and obvious that no reasonable cause of action had been pleaded because Ms. Carroll did not have standing to bring the application. THE ISSUES [13] Ms. Carroll does not appeal the motion judge’s decision that she lacks standing to pass accounts pursuant to the Substitute Decisions Act , 1992 , S.O. 1992, c. 30, or any of the Rules of Civil Procedure . Nor does she take issue with the motion judge’s articulation of the test to be applied under r. 21.01, or with the propriety of dismissing an application under that rule where a proceeding is brought without standing. Her appeal is confined to the motion judge’s conclusion that Ms. Carroll clearly lacked standing. I would state the issues that Ms. Carroll raises as follows, and approach them in the following order: A. Did the motion judge err by failing to invoke the court’s inherent jurisdiction to supervise trusts? B. Did the motion judge err by applying the wrong standing test? C. Did the motion judge err by finding that Ms. Carroll had not pleaded facts establishing a prima facie case of standing? D. Did the motion judge err by failing to consider all aspects of the relief sought when determining Ms. Carroll’s standing? [14] As I conclude that the motion judge made none of these errors, I would dismiss the appeal. ANALYSIS A. Did the Motion Judge Err by failing to invoke the court’s inherent jurisdiction to supervise trusts? [15] Ms. Carroll argues that the inherent jurisdiction of courts to administer trusts makes standing “subordinate, and largely irrelevant, where allegations of fraudulent or improper misconduct are made against a trustee.” As I understand her argument, Ms. Carroll maintains that once a court receives allegations that a trust has been breached, the role of the courts as the guardian of trusts is triggered, regardless of who initiated the application, thereby obliging the courts to resolve the litigation. Hence, in Ms. Carroll’s view, the motion judge erred in requiring her to satisfy legal standing tests. [16] Relatedly, Ms. Carroll appears to be suggesting that the motion judge also erred by abdicating her judicial responsibility to address the alleged breaches of trust by giving weight to the fact that there are alternative means available for trust breaches to be addressed. [17] I would firmly reject Ms. Carroll’s submissions. There is no support for the claim that the inherent jurisdiction of courts to supervise or administer trusts makes standing a subordinate or largely irrelevant consideration where allegations of fraudulent or improper misconduct are made against a trustee. This claim misconceives the true nature of the inherent jurisdiction of courts to supervise or administer trusts and is contrary to basic trust principles. [18] Courts assumed inherent jurisdiction to supervise and administer trusts so that trusts could be given legal force: Donovan W.M. Waters, Q.C., Mark R. Gillen & Lionel D. Smith, eds., Waters’ Law of Trusts in Canada , 4th ed. (Toronto: Thomson Reuters, 2012), at pp. 1165-66; Daniel Clarry, The Supervisory Jurisdiction Over Trust Administration (Oxford: Oxford University Press, 2018), at para. 2.11. The enforcement of trusts was not achieved by empowering courts to act as roving commissions of inquiry into their proper performance, but by empowering courts to assist those with an interest in trusts in enforcing and compelling the performance of those trusts. [19] Initially, the inherent jurisdiction to supervise and administer trusts was recognized “primarily to protect the interest of beneficiaries”: Crociani v. Crociani , [2014] UKPC 40, at para. 36. Without the assumption of jurisdiction by courts, beneficiaries would lack legal authority to enforce trusts because trustees are the legal owners of trust property, and therefore hold the bundle of enforceable legal rights that property enjoyment entails. The only way to ensure that beneficiaries can enjoy trust property they do not own is for courts to take jurisdiction and impose personal obligations on trustees to use the legal rights they hold for the benefit of the beneficiaries, according to the terms of the trust: McLean v. Burns Philp Trustee Co. Pty. Ltd. (1985), 2 N.S.W.L.R. 637 (S.C.), at p. 933. [20] Given that trusts are enforced by imposing personal obligations on trustees, if courts did not intervene, a trust would fail where a trustee would not or could not discharge their personal obligations because of refusal or incapacity. Courts therefore accepted the inherent jurisdiction to assume the administration of such trusts, based on the maxim of equity that no trust should fail for want of a trustee: Clarry , at para. 1.04. [21] In this way, courts of equity claimed the inherent jurisdiction at the behest of beneficiaries “to supervise, and where appropriate intervene in, the administration of a trust where there is no trustee to carry it on, or where the trustee wrongfully declines to act or refuses to disclose trust accounts and supporting information or is otherwise acting improperly”: Halsbury’s Laws of England , Vol. 98, “ Trusts and Powers ” (London: LexisNexis, 2019), at para. 626. [22] Given the significant obligations that courts impose on trustees and the desire to “enable practical effect to be given to a trust”, courts have also recognized the inherent jurisdiction to assist trustees in the administration of trusts where such assistance is required: MF Global UK Ltd. (In Special Administration), Re , [2013] EWHC 1655 (Ch.), at paras. 26, 32. For example, there is inherent jurisdiction to assist trustees “where difficulties have arisen which cannot be removed without the assistance of the court, or where the decision of the court on a doubtful question connected with the trust or on its proper administration is sought by the trustee”: Halsbury’s , Vol. 98, at para. 626; Waters’ Law of Trusts , at pp. 1165-66. [23] To be sure, on occasion access to the inherent jurisdiction of courts has been extended to others who have an interest in a trust, such as creditors or those with contingent interests, particularly where that jurisdiction is supported by statute: see McLean v. Burns Philp; Waters’ Law of Trusts , at p. 1122. However, it can readily be seen that the inherent jurisdiction to supervise and administer trusts exists to assist the parties to the trust relationship or those who are interested in the trusts. As such, the inherent jurisdiction of courts to supervise and administer trusts is not inconsistent with the imposition of standing requirements. To the contrary, it is entirely in keeping with the role inherent jurisdiction performs to ensure that those who seek to invoke the inherent jurisdiction to supervise or administer trusts have an interest in the trusts they seek to enforce. [24] The position advanced by Ms. Carroll during the oral hearing, that courts of equity have liberated the inherent jurisdiction from standing requirements in order to protect the interests of incapacitated beneficiaries who cannot effectively sue to enforce trust obligations, is also inaccurate. [25] In fact, courts of equity have done the opposite. They have protected the interests of the incapacitated through the conventional means of granting standing to others to enforce trusts on their behalf, including guardians and personal representatives. There are now appointed officials who have also been given statutory authority to enforce trusts. For example, the Children’s Lawyer can enforce trusts: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 89(3). So, too, can the Public Guardian and Trustee: Substitute Decisions Act, 1992 ; Public Guardian and Trustee Act , R.S.O. 1990, c. P.51; and see Waters’ Law of Trusts , at p. 133; and Eileen E. Gillese, The Law of Trusts , 3rd ed. (Toronto: Irwin Law Inc., 2014), at p. 40. There is a narrow statutory exception that dispenses with private interest standing by enabling anybody to propose an arrangement for the variation of a trust for an incapacitated beneficiary: Variation of Trusts Act , R.S.O. 1990, c. V.1; Gillese, at p. 99. But this exception proves the rule. Simply put, the methods used to protect incapacitated beneficiaries do not support Ms. Carroll’s position. They contradict it. [26] Not surprisingly, Ms. Carroll produced no authority to support her position that standing is subordinate and largely irrelevant in breach of trust cases. To the contrary, the authorities put before this court include illustrations of courts considering whether litigants have the standing required to raise such claims: McLean v. Burns Philp ; and see Gallant v. Gaudet (1996), 149 Nfld. & P.E.I.R. 31 (P.E.S.C.T.D.), at para. 25. [27] The position advanced by Ms. Carroll not only lacks support, it is also contrary to basic trusts principles. The logical implication of her position is that even if capacitated beneficiaries choose not to enforce the trust benefits that they are entitled to, strangers to the trust may do so. This outcome is not only unwarranted, it is contrary to the essential character of a trust, namely, an enforceable personal obligation owed by a trustee to the beneficiary, respecting property: see David Hayton, Paul Matthews & Charles Mitchell, eds., Underhill and Hayton: Law of Trusts and Trustees , 18th ed. (London: LexisNexis, 2010), at p. 2; Gillese, at p. 5. Simply put, if a beneficiary with capacity does not wish to enjoy the benefits of the personal obligation owed by the trustee, that obligation should not be enforced. [28] It is also contrary to the “beneficiary principle”, that, subject to exception, to be valid, trusts must have a beneficiary capable of enforcing the trust: Morice v. Bishop of Durham (1804), 32 E.R. 656 (Ch.), aff’d (1805) 32 E.R. 947 (Ch.); In re Astors Settlement Trusts , [1952] Ch. 534 (Eng.). The theory underlying the beneficiary principle is that trusts are, by definition, enforceable equitable obligations, and, without a beneficiary, there would be no-one with the standing to enforce the trust, thereby defeating the very existence of a trust: see Astors , at pp. 546-47, 549; Philip H. Pettit, Equity and the Law of Trusts , 12th ed. (Oxford: Oxford University Press, 2012), at pp. 59-60 . If non-beneficiaries could enforce trusts, the beneficiary principle would not have developed. It would also be possible to create enforceable, non-charitable, impersonal purpose trusts, something the law in fact disallows. [29] The motion judge was therefore correct in not accepting Ms. Carroll’s claim that standing is a secondary, if not irrelevant, consideration in trust litigation. Standing is required to sue for breaches of trust. B. Did the Motion Judge err by Applying the Wrong Standing test? [30] Ms. Carroll argues that if standing is required, the motion judge was obliged to apply a flexible, discretionary, purposive approach to standing that asks whether there is a “real and legitimate basis for asking the court to adjudicate legal issues”. Ms. Carroll contends that the motion judge erred by not applying this test, and that, had she done so, Ms. Carroll would have been found to have standing given that she is a whistleblower who has sacrificed a great deal, thereby acquiring a “genuine interest and real stake in the outcome of the proceedings”. [31] I do not agree with Ms. Carroll’s conception of the test to be used in determining her standing. As I will explain, where legislation does not provide standing, there are two paths to securing standing to initiate proceedings, “private interest standing” and “public interest standing”. These paths are distinct. Ms. Carroll does not seek public interest standing since it is clearly unavailable in her case. Instead, she argues that public interest standing principles should inform whether she has private interest standing. I do not agree with this proposition. Public interest standing principles do not apply where the private interest standing test governs. The motion judge would have erred had she applied the standing test Ms. Carroll proposes. [32] I will begin by describing the tests for private interest and public interest standing. [33] To have private interest standing, a person must have a personal and direct interest in the issue being litigated: Campisi v. Ontario (Attorney General) , 2018 ONCA 869, 144 O.R. (3d) 638, at para. 4, leave to appeal refused, [2019] S.C.C.A. No. 52. They must themselves be “specifically affected by the issue”: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society , 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 1. It is not enough that the person has a “sense of grievance” or will gain “the satisfaction of righting a wrong” or is “upholding a principle or winning a contest”: Finlay v. Canada (Minister of Finance) , [1986] 2 S.C.R. 607, at para. 21, citing Australia Conservation Foundation Inc. v. Commonwealth of Australia (1980), 28 A.L.R. 257 (H.C.A.), at p. 270. As it is sometimes put, to have private interest standing, a person must have a “personal legal interest” in the outcome: Landau v. Ontario (Attorney General) , 2013 ONSC 6152, 293 C.R.R. (2d) 257, at para. 16. Where the party initiating the litigation has a personal legal interest in the outcome, standing exists as of right: Landau , at para. 21. An appeal of a private interest standing decision is therefore evaluated using a correctness standard: Miner v. Kings (County) , 2017 NSCA 5, 60 M.P.L.R. (5th) 1, at para. 23. [34] “ In public law cases , however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations” (emphasis added): Downtown Eastside , at paras. 1, 22. This more flexible approach is warranted “to ensure that legislation is not immunized from challenge”: Downtown Eastside , at para. 33, citing Canadian Council of Churches v. Canada (Minister of Employment and Immigration) , [1992] 1 S.C.R. 236, at p. 256. As Cromwell J. explained in Downtown Eastside , at para. 37: In exercising the discretion to grant public interest standing , the court must consider three factors: (1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts. The plaintiff seeking public interest standing must persuade the court that these factors, applied purposively and flexibly, favour granting standing. [Emphasis added, citations omitted.] [35] I have added emphasis to the above passages from Downtown Eastside to reinforce that the flexible, discretionary, purposive approach that has been adopted applies only in public interest litigation. Similar developments have not occurred in private law proceedings. There are good reasons why this is so. [36] First, the reasons for liberating standing requirements in public interest litigation do not apply in the same degree to private litigation. For example, there will invariably be greater justification for using public legal resources to address matters of public interest than there will be for using public legal resources to vindicate private interests that the parties affected are not seeking to vindicate. [37] As well, public interest litigation tends to affect the interests of many, particularly where laws are being challenged. In contrast, the outcome of private litigation has a unique impact on those whose legal interests are directly affected by the litigation. They are therefore the ones who should carry out the litigation so that they can make decisions relating to the protection of their interests. [38] Ms. Carroll’s proposed action illustrates the point. She is suing for an investigation and for the passing of accounts without notice to the unitholders and has requested that unitholders be compensated. If she were to be granted standing, the private information of unitholders would be accessed for the lawsuit without their input. Further, if she were to be given standing to litigate, she would not only control the tactical choices made during litigation but would also have standing to settle the litigation. Despite her lack of personal legal interest in the outcome, she would be empowered to manage the litigation in ways that could potentially compromise the financial interests of the unitholders, who hold the personal legal interests in question. [39] Finally, and most profoundly, the driving consideration in using flexible standing standards in public interest litigation does not apply to private litigation. Specifically, there is not the same concern that, without a flexible standing test, wrongdoing will effectively be immunized. In private law cases, if the parties with a personal legal interest that is affected by wrongdoing forego their right to sue or raise an issue, thereby immunizing the wrongdoing, this is a private matter, not one of public concern. [40] Of course, where the private wrongdoing occurs in a regulated enterprise and contravenes the law, there will be a public interest in intervening, but that public interest is to be protected by regulatory enforcement, not through the surrogacy of civil suits initiated by strangers to the private rights at stake. [41] Ms. Carroll has provided us with no authority applying the public interest standing principles articulated in Downtown Eastside to private interest standing. For the reasons I have provided, I am not persuaded that such crosspollination should start here. In my view, the refinement of the public interest standing principles in Downtown Eastside has not altered the law of private interest standing. [42] If Ms. Carroll’s position is the more modest one that the principles from Downtown Eastside should be applied exceptionally where a knowledgeable whistleblower seeks to launch a lawsuit to expose wrongdoing in a private institution, I am equally unpersuaded. I appreciate that it has long been recognized that there is a public interest in exempting whistleblowers from confidentiality obligations, so that they can expose misconduct that should be exposed in the public interest: Initial Services Ltd. v. Putterill and Another , [1968] 1 Q.B. 396 (C.A.). However, there is a difference between suppressing confidentiality obligations in the public interest, and empowering whistleblowers who have no legal interest in the outcome of litigation to initiate such litigation. There is good reason for the former but no reason for the latter. A whistleblower can expose misconduct without commencing private litigation involving the legal rights of others. As TD noted before us, subject to the law of privilege, nothing prevented Ms. Carroll from sharing her inside information with regulators, and there is nothing preventing her from sharing her intelligence with unitholders, or from appearing as a witness should the unitholders choose to sue. [43] In my view, the motion judge considered the correct standing tests in determining whether Ms. Carroll had standing. She determined that the statutory standing provisions that govern standing to pass accounts do not apply, and she considered whether Ms. Carroll had a personal legal interest in the litigation that could support private interest standing. She also considered and correctly rejected Ms. Carroll’s contention that her status as a knowledgeable whistleblower gave her standing to bring the application, or that more generous standing rules apply in breach of trust cases. I would therefore reject this ground of appeal. C. Did the motion judge err by finding that Ms. Carroll had not pleaded facts establishINg a prima facie case of standing? [44] The party initiating civil proceedings has the burden of establishing their standing by pleading facts that would support standing: The Polish National Catholic Church of Canada v. Polish National Church, 2014 ONSC 4501, at para. 41. Ms. Carroll has not pled facts that could disclose a prima facie case that the application she initiated would affect her personal legal interests. I would therefore dismiss this ground of appeal. [45] As the motion judge found, Ms. Carroll was not a unitholder in the trust and had no financial interest in the outcome of the litigation she commenced, and, despite her role as a whistleblower, she lacked a direct personal interest in the litigation. She pleaded no facts that could disclose a personal legal interest in the trusts that were allegedly breached. [46] The motion judge was also correct in rejecting Ms. Carroll’s contention that she could sustain a standing claim based on her potential liability as a constructive trustee. There are three possible avenues to personal liability as a constructive trustee: · As a “knowing assister”, who knowingly or wilfully blindly encouraged or assisted in a dishonest and fraudulent breach of trust: Air Canada v. M & L Travel Ltd . , [1993] 3 S.C.R. 787, at pp. 809-11; · As a “knowing receiver”, who knowingly, or wilfully blindly, or with knowledge of facts which would put an honest person on inquiry, received trust property in their own capacity in breach of trust: Air Canada , at pp. 810-13; or · As a trustee de son tort , who assumed the role of trustee without proper appointment and then breached the trust: Air Canada , at pp. 808-9. [47] The motion judge addressed the first avenue of potential liability, “knowing assistance”, and dismissed it because there was no evidence before her that Ms. Carroll participated in any breaches of trust. Indeed, the pleadings before the motion judge maintained that Ms. Carroll made efforts to prevent and remedy any alleged wrongdoing. [48] Ms. Carroll argues on appeal that, despite this, it is not plain and obvious that she would not be exposed to personal liability as a constructive trustee, given her role as a corporate officer of the Trustee at the time the maladministration occurred. I disagree. The motion judge was correct in finding that there was no foundation that could support Ms. Carroll’s liability as a knowing assister. There was no need for the motion judge to address knowing receiver or trustee de son tort liability, as neither form of liability is even hinted at in the pleadings. Absolutely no suggestion is made that Ms. Carroll received trust property, and there is no indication that she assumed the role of trustee. [49] In these circumstances, the fact that Ms. Carroll sought indemnity in her application does not provide a path for her standing. “It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim”: R. v. Imperial Tobacco Canada , 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22. Ms. Carroll has pled no facts that could support such relief. [50] I would therefore reject Ms. Carroll’s contention that the motion judge erred in finding that she had not pleaded facts establishing a prima facie case of standing. That decision was correct. D. DID THE MOTION JUDGE ERR BY FAILING TO CONSIDER ALL ASPECTS OF THE RELIEF SOUGHT WHEN DETERMINING MS. CARROLL’S STANDING? [51] Ms. Carroll argues that the motion judge erred by focusing entirely on whether she had standing to pass accounts, disregarding the other relief she requested. I would not give effect to this ground of appeal, either. [52] First, I am not persuaded that the motion judge considered only the relief related to the passing of accounts. As just described, the motion judge considered the relief Ms. Carroll claimed in relation to her potential liability as a constructive trustee. The motion judge’s careful decision is responsive to the arguments made. I would not be prepared to find that because the motion judge did not expressly mention some of the specific relief requested, she must have failed to consider that relief in coming to the decision that she did. [53] In any event, the motion judge’s holding that Ms. Carroll did not have statutory or private interest standing was correct and prevents Ms. Carroll from seeking any of the relief she claims. Even had the motion judge failed to consider all the relief requested, it would have made no difference to the outcome. CONCLUSION [54] I would dismiss the appeal. If agreement is not reached as to costs, I would invite the parties to provide costs submissions of no more than 3 pages, accompanied by bills of costs. The respondent is to provide their costs documentation within 10 business days following the release of this decision. I would require the appellant to respond within 5 business days. Released: January 21, 2021 “MT” “David M. Paciocco J.A.” “I agree. M. Tulloch J.A.” “I agree. B.W. Miller J.A.”

WARNING Prohibitions under the Child, Youth and Family Services Act , 2017, S.O. 2017, c.14, Sched. 1 apply to this decision: Prohibition re identifying child 87(8) 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. Prohibition re identifying person charged 87(9) 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. Transcript 87(10) No person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise. Offences re publication 142 (3) 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. V.R., 2021 ONCA 209 DATE: 20210407 DOCKET: C68445 Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A. BETWEEN The Catholic Children’s Aid Society of Toronto Applicant (Respondent) and V.R. Respondent (Appellant) David Miller, for the appellant Chris Andrikakis, for the respondent Heard by video conference: March 26, 2021 On appeal from the order of Justice Carolyn J. Horkins of the Superior Court of Justice, dated June 9, 2020, with reasons reported at 2020 ONSC 3508, allowing in part an appeal from the order of Justice Manjusha Pawagi of the Ontario Court of Justice, dated April 5, 2019. REASONS FOR DECISION [1] This is a second appeal from a decision finding three-year-old D.R. in need of protection and placing her in the Society’s extended care with a view to adoption by her foster parents and with no order for access. The appeal judge allowed the mother’s appeal only in respect of the access order, finding that the trial judge erred in law by applying the wrong test. The appeal judge proceeded to make the access decision afresh but reached the same conclusion and refused access. [2] The mother appealed from the entire order below but now appeals only the “no access” portion of that order. She requests a rehearing of the access issue or, in the alternative, an order for virtual access to D.R. at least six times each year as well as recent pictures of the child at least four times each year. She specifically asks for both mother and child to be access holders and access recipients. [3] D.R.’s father did not participate in either the trial or the appeal below and did not participate in this appeal. He was deported to Portugal in 2018. The appellant was deported to Portugal prior to this appeal being heard. [4] The appeal is dismissed for the reasons that follow. Background [5] D.R. was born in October 2017. She was seriously injured on two occasions in the first few months of her life. The first injury occurred in November 2017, when she suffered a spiral fracture of her upper arm. Dr. Shouldice, head of Paediatric Medicine at the Hospital for Sick Children and overseer of the Suspected Child Abuse and Neglect unit, concluded that this injury was consistent with an explanation given by the father one week after the injury was sustained. The second serious injury occurred February 2018, when D.R. was four months old and in the temporary custody of her parents. She was taken to the hospital after she suffered seizures, was not breathing well, and her eyes were rolled backwards. Her injuries included subdural haemorrhages and retinal haemorrhages. Dr. Shouldice concluded that the most likely cause of the injuries was blunt force trauma, inertial forces, or a combination of the two. [6] The trial judge rejected the appellant’s innocent explanations for the injuries. She found that D.R. was injured in the care of her parents and that her injuries were intentionally inflicted by the mother and/or father. The trial judge found that D.R. was a child in need of protection and placed her in the extended care of the Society with no parental access. [7] The appellant mother appealed on several grounds but her appeal was dismissed, save in one respect. The appeal judge found that the trial judge wrongly put the onus on the appellant to demonstrate that access would be in the child’s best interests. Rather than remit the matter, the appeal judge assumed jurisdiction to determine the access question. The appeal judge concluded that access was not in the best interests of the child and made the no access order that is the subject of this appeal. Discussion [8] The appellant submits that on any reasonable application of the best interests analysis on the evidence in this case, an access order should result. The appellant says that she has demonstrated normal, healthy parenting skills and that D.R. enjoys and has benefited from visits with her. The appellant is happy that the foster parents are willing to adopt D.R. and access would not impair D.R.’s opportunities for adoption. Access would allow D.R. a connection to her biological family, Portuguese roots, culture and language. The appellant says that there is no risk of harm through the requested access in the form of video calls, letters, cards, and gifts. [9] This submission is, in essence, an invitation to retry the matter and to substitute this court’s decision. That is not our function on appeal. The appeal judge’s decision to deny access is entitled to deference from this court, absent a palpable and overriding error. We see no error that would allow this court to intervene. [10] The appeal judge conducted a best interests analysis, assessing whether the relationship was beneficial and meaningful to the child in accordance with ss. 105(5) and (6) of the Child, Youth and Family Services Act , 2017, S.O. 2017, c. 14, Sched. 1 , and the criteria set out in s. 74(3). [11] D.R.’s age precluded the ascertainment of her wishes, and the appeal judge noted that she is not First Nations, Inuk, or Métis. The appeal judge went on to consider the relevant circumstances under s. 74(3)(c) based on the findings of the trial judge. [12] The most significant of these was the degree of risk that led to the protection finding, given the trial judge’s finding that one or other of the parents had intentionally inflicted the injuries on the child or failed to protect the child from the other caregiver. The appeal judge also noted that the seizure episodes occurred more than two hours before the child arrived at the hospital and that the medical evidence was that the delay placed the child at a “higher risk for low oxygen damage to the brain…at increased risk for developmental delay, long term neurological problems and learning difficulties”. [13] The appeal judge noted that the child has benefited from the continuity of the care she has received and was developing extremely well in the care of her foster parents. The appeal judge’s key findings are set out in paras. 151-2, in which she stated: The child has not been in her mother’s care since she was four months old. While the mother’s access visits with the child have gone well, there is no factual foundation to find that their relationship is beneficial and meaningful to the child . There is no evidence as to how the mother might provide for the child’s needs. The mother is currently the subject of a deportation order and, if implemented, she will be returned to Portugal. In summary, I find that it is not in the child’s best interests to order that the mother have access. I make no order as to access. [Emphasis added.] [14] The thrust of the appeal judge’s decision is clear and reveals no error.  Although the reasons on the specific issue of access could have been more detailed, they leave no doubt as to the reasonableness of the decision. [15] This is a case in which the appellant has had only a very brief relationship with D.R., having cared for her for two non-consecutive months. D.R. has spent most of her life in her foster parents’ care and has been thriving there. During the time she was cared for by the appellant, D.R. was seriously injured on two occasions and the trial judge found that the injuries incurred on the second occasion were inflicted intentionally by either or both parents. The appellant’s explanation for how these injuries occurred was rejected by the trial judge. [16] The appeal judge’s finding that the most significant circumstance is the degree of risk that led to the protection finding is supported by the evidence and is reasonable. So too is the appeal judge’s finding that there is no factual foundation supporting a finding that the relationship is beneficial and meaningful to D.R., regardless of how well the access visits had gone at the time she made her decision. In that regard, the trial judge noted the foster father’s evidence that D.R. was sometimes upset after access visits as well as the access worker’s evidence that although the access visits went well, D.R. left without a visible reaction to parting from the appellant. [17] The appeal judge’s decision is fortified by the fresh evidence proffered by the Society. The appellant does not oppose the admission of this evidence – an affidavit from D.R.’s foster father – and in our view it is properly admitted as it is directly relevant to the child’s best interests. [18] D.R. has been in the care of the deponent and his wife since February 2018. The appellant has not had in-person access with D.R. since supervised visits ended in March 2020. Since that time, the appellant has maintained contact with D.R. by means of brief, biweekly video call visits that have been facilitated by the foster parents. Initially the video calls lasted 30-40 minutes, but recently that has dropped to 15-20 minutes. He states that D.R. seems a bit tense during the calls and needs frequent reassuring following the calls. [19] In summary, there is no basis to interfere with the appeal judge’s no access order. [20] The appeal is dismissed. No costs were requested and none are ordered. “Fairburn A.C.J.O.” “K. van Rensburg J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Champoux v. Jefremova, 2021 ONCA 92 DATE: 20210212 DOCKET: C67511 van Rensburg, Hourigan and Brown JJ.A. BETWEEN Penny-Lee Champoux Plaintiff (Appellant) and Ljudmilla Jefremova and Mohammed Khodabandehloo Defendants ( Respondent ) Geoffrey Adair and Peter Denton, for the appellant Graham Ragan and Katie Ahn, for the respondent Heard: November 19, 2020, by video conference On appeal from the judgment of Justice James A. S. Wilcox of the Superior Court of Justice, dated September 4, 2019, with reasons reported at 2019 ONSC 5143. Hourigan J.A.: I.        Introduction [1] This is an appeal of the dismissal of a medical malpractice claim. The trial’s focus was whether the respondent, Ljudmilla Jefremova, breached the standard of care of a reasonable and prudent doctor when she treated Penny-Lee Champoux. The trial judge found that Dr. Jefremova met that standard of care and dismissed the claim in its entirety. [2] Two issues are raised on the appeal: (i) whether the trial judge’s reasons are insufficient to permit appellate review; and (ii) whether the trial judge erred in his consideration of a Response to Request to Admit filed by counsel for Dr. Jefremova. [3] As will be explained below, I have concluded that the judgment must be set aside and a new trial ordered. I accept the argument advanced by Ms. Champoux that the trial judge failed in his reasons to analyze essential components of her theory of liability and explain why he found that Dr. Jefremova did not breach the standard of care. Consequently, the trial judge’s reasons do not permit appellate review.  Regarding the analysis of the Response to Request to Admit, the trial judge issued contradictory reasons about the central issue of whether it constituted an accurate admission. This resulted in an unfair trial for Ms. Champoux and also warrants a new trial. II.       FACTS [4] Given that I would order a new trial, only a brief recitation of the facts is necessary to put the grounds of appeal in context. [5] Ms. Champoux attended Kirkland Lake Hospital’s emergency department on June 29, 2012, intending to seek treatment for an abscess on her buttocks area and hyperglycemia, as she could not get her high blood sugars under control. She has various underlying health problems, including diabetes, PTSD, and fibromyalgia. At the emergency department, a nurse triaged Ms. Champoux, took her vital signs and did a blood sugar reading. [6] Dr. Jefremova then examined Ms. Champoux and noted that her heart rate was elevated and that her blood sugar level was 11.6. However, prior hospital records indicated that Ms. Champoux’s heart rate was always elevated without cardiac issues and that her normal glucose level was between 8 and 12.5. Dr. Jefremova assessed the abscess, decided it was not yet ready to break, and sent Ms. Champoux home. [7] Ms. Champoux returned to the emergency department on July 2, 2012, because her abscess had grown rapidly, and her blood sugar was higher. She was admitted for surgery to drain the abscess and discharged on July 13, 2012. Ms. Champoux was re-admitted to the hospital several times afterward to deal with abscess drainage. [8] Ms. Champoux brought a medical malpractice action against Dr. Jefremova and Dr. Mohammed Khodabandehloo, who had given her a cortisone shot on June 19, 2012. However, the action against Dr. Khodabandehloo was dismissed before trial. [9] In his reasons for decision, the trial judge reviewed the evidence of Ms. Champoux, her mother-in-law, Dr. Jefremova, and two experts (Dr. Fernandes, who testified for Ms. Champoux, and Dr. McMurray, who testified for Dr. Jefremova), and documents related to the medical events. The evidence focused on whether Dr. Jefremova breached the standard of care of a reasonable and prudent doctor in her treatment of Ms. Champoux on June 29, 2012. [10] The location of the abscess was an important issue because the standard of care differs based on whether the abscess was a simple buttocks abscess, as opposed to a perianal, ischiorectal, or anorectal abscess. On the issue of the location of the abscess, a Request to Admit served by Ms. Champoux’s counsel became significant at trial. It was served on Dr. Jefremova’s counsel on September 19, 2018. Among other things, Ms. Champoux requested that Dr. Jefremova admit that “[o]n June 29, 2012, Penny Lee Champoux had a perianal abscess.” [11] On October 9, 2018, a Response to Request to Admit was delivered by counsel for Dr. Jefremova. Among other refusals, Dr. Jefremova’s counsel refused to admit that “[o]n June 29, 2012, Penny Lee Champoux had a perianal abscess”. In the reason for this refusal, Dr. Jefremova’s counsel stated that “[o]n June 29, 2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the general perianal area.” [12] At trial, Ms. Champoux’s counsel closed his case on December 12, 2018, without referring to the Request to Admit. It was entered as exhibit 9 on December 14, 2018, as part of a package that included the Request to Admit, the Response to Request to Admit, and a document entitled “Admissions Made by the Defendant Jefromova” [ sic ]. [13] Dr. McMurray’s evidence in chief was that Ms. Champoux suffered from a simple buttock abscess and that Dr. Jefremova had met the standard of care. In cross-examination, Ms. Champoux’s counsel put to Dr. McMurray that Dr. Jefremova had formally admitted that “on June 29 the abscess was in the general perianal area or region”. Dr. McMurray opined that if it was clearly a perianal abscess or in the perianal region, Ms. Champoux should not have been sent home and the abscess should have been incised and drained right away by the emergency room physician or a surgeon. [14] On December 15, 2018, Dr. Jefremova’s counsel wrote to Ms. Champoux’s counsel to advise that the Response to Request to Admit had left her office through inadvertence and without Dr. Jefremova’s instructions, and to request consent to withdrawal of the admission. By email dated December 16, 2018, Ms. Champoux’s counsel advised that his client would not consent to the withdrawal of the admission. [15] Dr. Jefremova brought a motion seeking to clarify or, in the alternative, withdraw the admission contained in the Response to Request to Admit. In written reasons, the trial judge dismissed the motion to withdraw the admission. He also found that it was inappropriate at that point in the proceeding to rule on the interpretation to be given to the Response to Request to Admit. Instead, he held that the interpretation of the admission was best left for consideration after final submissions. [16] In his reasons for decision, the trial judge considered all of the evidence and found that on June 29, 2012, Ms. Champoux had presented with an abscess located near the middle of the left buttock cheek. He concluded that Dr. Jefremova had met the standard of care based on the location of the abscess. The trial judge did not go on to consider the issues of causation or damages. The action was dismissed. III. ANALYSIS [17] As noted, Ms. Champoux makes two arguments on this appeal. The first is that the trial judge provided insufficient reasons. The second is that the trial judge erred in disregarding Dr. Jefremova’s formal admission in determining the location of the abscess on June 29, 2012.  These arguments will be considered in turn below. (a) Insufficient Reasons [18] The law regarding insufficient reasons is well established. Reasons serve many functions, they: (i) justify and explain the result; (ii) tell the losing party why they lost; (iii) provide public accountability and satisfy the public that justice has been done and is seen to have been done; and (iv), permit effective appellate review: F.H. v. McDougall , 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98. Meaningful appellate review is precluded if the decision of the court below does not provide some insight into how the legal conclusion was reached and what facts were relied on in reaching that conclusion: Longo v. MacLaren Art Centre , 2014 ONCA 526, 323 O.A.C. 246, at para. 63. [19] When reasons do not fulfill one or more of their functions, it may be necessary for the appellate court to send the matter back to the court below for a new hearing. This is hardly a desirable result, given the wasted costs of the first hearing and the delay in having the case determined on the merits. Yet sometimes, this rather drastic result is necessary to protect the judicial system’s integrity. [20] As this court observed in Gendron v. Doug C. Thompson Ltd. (Thompson Fuels) , 2019 ONCA 293, 34 C.P.C. (8th) 144, at para. 93, leave to appeal refused, [2019] S.C.C.A. No. 228, the insufficient reasons ground of appeal appears with such frequency in this court that it is fast becoming a boilerplate ground of appeal. The court cautioned that the ground of appeal was being asserted in cases where there was no reasonable basis for arguing that the reasons for decision of the court below were anything other than straightforward.  This is not such a case. Instead, this is a situation where the parties and the court are left to speculate on how the trial judge reached his conclusion on critical issues. [21] The trial judge spent much of his reasons summarizing the evidence of the witnesses who testified at trial. This approach to writing reasons is often problematic. There is nothing impermissible in writing reasons this way, and it is important to capture the evidence adduced at trial. However, it is worth emphasizing that a detailed factual recitation is not a substitute for a considered analysis of the issues. What frequently happens when reasons begin with a very detailed recitation of the evidence is that when it comes time to grapple with the issues in the case, the analysis is largely conclusory. This was what happened in the case at bar. [22] In his reasons, the trial judge concluded that the abscess was located near the middle of the plaintiff’s left buttock cheek. He then went on to comment on the expert evidence at paras. 139-140: I was favourably impressed with Dr. McMurray’s evidence and prefer it to Dr. Fernandes’s. Meaning no disrespect to Dr. Fernandes who has impressive credentials, as noted above, I found Dr. McMurray’s experience to be more closely related to the situation in this case. Also, I was impressed with the apparent practicality of his approach to scenarios such as the defendant was confronted with on June 29, 2012, as compared to what I saw to be the more academic approach of Dr. Fernandes. Furthermore, I find that Dr. McMurray’s initial opinion was based on the facts as found, specifically about the location of the abscess when the defendant, Dr. Jefremova, saw it on June 29, 2012. Consequently, I am not persuaded that the defendant Dr. Jefremova failed to meet the standard of care on June 29, 2012 and would dismiss the claim against her. [23] As in most medical malpractice cases, the expert evidence was of significant importance. There were several areas where the experts disagreed. The trial judge was obliged to explain in some level of detail why he preferred the evidence of Dr. McMurray over Dr. Fernandes. Expressing a general preference based on a statement that he found “Dr. McMurray’s experience to be more closely related to the situation in this case” does not suffice. Nor does a reference to Dr. McMurray’s approach being more practical. The trial judge was obliged to weigh in on important issues, including, but not limited to: · Was the standard of care breached when Ms. Champoux was sent home without Dr. Jefremova knowing why her heart rate was elevated and her blood sugars uncontrolled? · Was Dr. Fernandes correct in his criticism of Dr. Jefremova when he said that she failed to undertake appropriate testing of Ms. Champoux? · Was Dr. Fernandes correct when he opined that the standard for all abscesses is immediate incision or drainage once they are diagnosed? · Was Dr. McMurray correct when he testified that there were two abscesses, one on the buttocks and an ischiorectal one that was discovered during surgery? · Why was Dr. McMurray’s experience considered more applicable to the case at bar when he testified that he had never aspirated an abscess or seen it performed? · Was the standard of care breached by Dr. Jefremova in delaying treatment? [24] Given the failure to consider these and other key issues, the trial judge’s reasons are not amenable to appellate review. Understandably, Ms. Champoux complains that the trial judge failed to engage with the crux of the case before him and, accordingly, she is unable to understand why her claim was dismissed. As an appellate court, we are also left in the dark about how the trial judge dealt with these critical issues. For this reason, I would order a new trial. (b) Withdrawal of Admission [25] I would also order a new trial as a result of the trial judge’s treatment of the admission in the Response to Request to Admit. His analysis resulted in an unfair trial for Ms. Champoux. [26] Before considering the trial judge’s analysis, I would reject Dr. Jefremova’s argument on appeal that the impugned admission in the Response to Request to Admit was not a formal admission because it was proffered in the context of a refusal. The purpose of request to admit procedures — to save time and costs by narrowing the facts in issue — would be undercut if litigants could deny a fact in a Request to Admit on the basis that an alternative set of facts is accurate, but then treat those proffered alternative facts as non-binding. That approach would obfuscate rather than clarify what facts are in issue.  Further, Dr. Jefremova’s counsel brought a motion to withdraw the admission after seeking Ms. Champoux’s consent to the withdrawal, indicating that all parties viewed the response as a formal admission. [27] Turning to the trial judge’s analysis, in the written reasons on the motion to withdraw the admission, the trial judge stated at para. 26: I am not persuaded that it is appropriate at this point in the proceeding to rule on the interpretation to be given to the Response to Request to Admit. Rather, that evidence would be left for consideration after the trial submissions have been heard, if the admission still existed then. Consequently, it is necessary in the circumstances to consider the request to withdraw the admission. For this, I turn to the applicable test. [28] The trial judge then went on to apply the test from Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.), as recently endorsed in Liu v. The Personal Insurance Company , 2019 ONCA 104, 89 C.C.L.I. (5th) 195, at para. 13.  That test directs courts to first consider whether the admission is one purely of fact, law, or mixed fact and law (since questions of law can be more easily withdrawn than questions of fact), and then apply a three-part conjunctive test regarding when an admission could be withdrawn, being: (a) Does the proposed amendment raise a triab l e issue in respect to the truth of the admission?; (b) Is there a r easonable explanation for the w it hdrawal, such as inadvertence or wrong instructions?; and, (c) Has the party w i shing to withdraw the admission established that the wi thdrawal will not result in any preju d i ce that cannot be compensated for in costs? [29] The trial judge found that the admission was one of pure fact.  His analysis of the triable issue factor was as follows, at para. 29: On the second branch, this is a medical malpractice case. The result depends on the standard of care that applies in the circumstances. Insofar as an abscess is concerned, what the standard is depends on its location and its type. The interpretation of the Response to Request to Admit is integral to determining these. The defence submitted that the admission is not incorrect, but is being misinterpreted. As I stated above, the interpretation of the admission is to be left to follow trial submissions. Therefore, I find no triable issue with respect to the truth of the admission, as contrasted with its interpretation. [30] The trial judge noted that the test for a withdrawal of an admission was conjunctive. Therefore, he found that Dr. Jefremova had not met her onus for the withdrawal of an admission. He dismissed the motion for leave to withdraw the admission. [31] In his reasons for decision on the trial, the trial judge reviewed the evidence regarding the location of the abscess and concluded, at para. 125, “ it is asking too much in seeking to have that imprecise expression [in the Response to  Request to Admit] accepted as proof on the balance of probabilities that the plaintiff presented to the ER with anything more serious than an abscess on her buttocks.” [32] I note that nowhere in his reasons on the motion or reasons for judgment does the trial judge consider the document in exhibit 9 wherein the admissions made by Dr. Jefremova are listed. Among those admissions is the following: “On June 29, 2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the general perianal area (response to fact 10).” [33] The problem with the trial judge’s analysis is that he dismissed the motion to withdraw the admission on the basis that it was an admission of pure fact and that there was no triable issue with regard to its truth. However, in his analysis of the admission’s interpretation, he proceeded to effectively conduct an analysis of the truth of the admission.  Thus, the reasons on the motion and the reasons on the trial were contradictory. In the first, he concluded that there was no triable issue regarding the truth of the admission and in the second, he undertook an analysis of whether the admission was true and found that it was not true. [34] A trial judge has the freedom to interpret what an admission means: Allto Construction Services Ltd. v. Toronto and Region Conservation Authority , 2017 ONCA 488, at para. 11. But that interpretive exercise cannot morph into an analysis of the veracity of the admission. A formal admission is not like other pieces of evidence led at trial that a judge can weigh at their discretion. A formal admission is conclusive of the matter admitted. The court is bound to act on formal admissions before it, even if other evidence contradicts the admission: Serra v. Serra , 2009 ONCA 105, 93 O.R. (3d) 161, at para. 106. [35] In the case at bar, the trial judge weighed the admission against the other evidence led at trial and proceeded to effectively permit the withdrawal of the admission on the basis that it was not accurate. He did so despite his earlier finding that there was no triable issue in respect of the truth of the admission and his dismissal of the motion to withdraw the admission. In so doing, he ignored the issue of non-compensable prejudice to Ms. Champoux, who clearly based her trial strategy on the fact that she had this admission. In my view, his reasons effectively bypassed the rigorous test for the withdrawal of an admission and resulted in an unfair trial for Ms. Champoux. This trial unfairness requires an order for a new trial. IV.     Disposition [36] For the foregoing reasons, I would set aside the trial judge's judgment and order a new trial. [37] Regarding the costs of the first trial and the costs of the appeal, if no agreement can be reached, I would order that: Ms. Champoux serve and file her costs submissions, including a bill of costs, within 14 days of the issuance of these reasons, Dr. Jefremova serve and file her responding costs submissions, including a bill of costs, within 10 days of the receipt of Ms. Champoux's submissions, and any reply submissions be served and filed within 7 days of the receipt of the responding submissions. Released: “K.M.v.R.” February 12, 2021 “C.W. Hourigan J.A.” “I agree. K. van Rensburg J.A.” “I agree. David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Crystallex International Corporation (Re), 2021 ONCA 87 DATE: 20210209 DOCKET: M51677 Rouleau, Benotto and Thorburn JJ.A. In the Matter of the Companies’ Creditors Arrangement Act , R.S.C. 1985, c. C-36, as amended And In the Matter of a Plan of Compromise or Arrangement of Crystallex International Corporation Robin Schwill, Natalie Renner and Maureen Littlejohn, for the moving party Crystallex International Corporation Timothy Pinos, Shayne Kukulowicz, and Ryan Jacobs, for the moving party Tenor Special Situation I, LP Alan H. Mark, Robert J. Chadwick, Peter Ruby, and Chris Armstrong, for the responding parties Computershare Trust Company of Canada in its Capacity as Trustee for the Holders of 9.375% Senior Notes of Crystallex International Corporation and the Ad Hoc Committee of Noteholders Heard: in writing Motion for leave to appeal from the order of Justice Glenn A. Hainey of the Superior Court of Justice, dated June 8, 2020 and August 31, 2020. REASONS FOR DECISION [1] Crystallex International Corporation (“Crystallex”) and DIP lender Tenor Special Situation I, LP (“Tenor”) seek leave to appeal the motion judge’s order dismi ssing, in part, Crystallex’s motion to seal certain information contained in the Monitor’ s Thirty-Third Report. For the reasons that follow, we refuse leave. Background [2] Crystallex has been under the protection of the Companies’ Creditors Arrangement Act , R .S.C. 1985, c. C-36 (“CCAA”) , since December 2011. Since that time, Crystallex’s sole business activity has been pursuing its claim agai nst the Republic of Venezuela for having expropriated its rights to the Las Cristinas gold mine. In 2016, the World Bank ’s International Centre for the Settlement of Investment Disputes awarded Crystallex $1.202 billion, and the company has been seeking to enforce th e award ever since. [3] In May 2020, Crystallex sought an extension of its initial order and requested that certa in information in the Monitor’s Thirty-Third Report, including certain financial information , be sealed. [4] Computershare Trust Company of Canada in its capacity as Trustee for the Holders of 9.375% Senior Notes of Crystallex and the Ad Hoc Committee of Noteh olders opposed the sealing order sought by Crystallex insofar as it related to the sealing of Crystallex’s (i) cash balance , (ii) cash-flow statement , and (iii) cash-flow forecast. [5] In his endorsement dated June 8, 2020, Hainey J. refused to seal the contested financial information . He noted that it was significant that the Monitor did not fully support Crystallex’s request for a sealing o rder. He held that the Sierra Club test was no t satisfied : Sierra Club of Canada v. Canada (Ministry of Finance) , 2002 SCC 41, [2002] 2 S.CR. 522. The affidavit evidence did “ not provide detailed or compelling reasons about how this information, if disclosed, could be used to the detriment of Crystall ex or any details whatsoever as to the feared consequences of its disclosure to the public”. The evidence was “ highly speculative and [did] not specify any incremental risk that Crystallex may suffer from the disclosure of this information over and above t he risk it is already exposed to.” [6] Following the hearing, the Monitor identified certain redactions that should be made to its report if the full sealing order requested by Cry s tallex w ere not granted. Indicating that he thought the proposed redactions ma de sense, t he motion judge permitted the parties to make further submissions with respect to the proposed redactions. In addition, Crystallex filed a supplementary affidavit detailing why it was of the view that disclosure of key financial information, including its cash balance, could harm its efforts to enforc e its award against Venezuela. [7] In his endorsement dated August 31, 2020, Hainey J. agreed to the Monitor’s proposed redactions . He continued to be of the view that the prop osed redactions made sense and represented a fair and reasonable balance between the protection of Crystallex’s important commercial interest and public disclosure in keeping with the open court principle. [8] The result was that the Company’s motion was dism issed in part. The motion judge ordered that the Thirty-Third Report be redacted as proposed by the Company , except for references to Crystallex’s cash balance and related information. [9] In seeking leave, Crystallex and Tenor submit that the motion judge mad e a number of errors, including erring in interpreting and applying the Sierra Club test, in failing to apply s. 10(3) of the CCAA, and in relying on the Monitor’s submissions as to whether the test for a sealing order had been met. In their submission, the motion judge’s order is inconsistent with prior sealing orders in this proceeding, as well as established practice in Ontario. They strenuously contend that disclosure of Crystallex’s cash balance could undermine the company’s enf orcement efforts. The Test for Leave is Not Met [10] Leave to appeal is granted sparingly in CCAA proceedings and only where there are serious and arguable grounds that are of real and significant interest to the parties. In addressing whether leave should be g ranted, the court will consider : (1) whether the proposed appeal is prima facie meritorious or frivolous; (2) whether the points on the proposed appeal are of significance to the practice; (3) whether the points on the proposed appeal are of significance t o the action; and (4) whether the proposed appeal will unduly hinder the progress of the action : see, for e.g., Stelco Inc. (Re) (2005), 75 O.R. (3d) 5 (C.A.), at para. 24; Timminco Ltd. (Re) , 2012 ONCA 552, 2 C.B.R. (6th) 332, at para. 2; Nortel Networks Corp. (Re) , 2016 ONCA 332, 36 C.B.R. (6th) 1, at para. 34. [11] Having reviewed the extensive materials filed on this leave motion, we are not satisfied that the proposed appeal is prima facie meritorious or that the case is of significance to the practice. Crystallex and Tenor seek to challenge a discretionary order of the motion judge, who as the supervising judge is intimately familiar with this CCAA proceeding. The motion judge applied the well-established Sierra Club test in light of the evidence before him. In our view, he did not give improper consideration or weight to the Monitor’s views . Nor do we see any other basis on which to interfere with the motion judge’s order . [12] In light of our view that the first two prongs of the leave test are not satisfi ed, we r efuse leave. Costs, to be shared equally by Crystallex and Tenor, are fixed at $1,000. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Cvetkovic v. Cvetkovic-Gorovic, 2021 ONCA 193 DATE: 20210330 DOCKET: C67374 Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A. BETWEEN Darko Cvetkovic Applicant (Respondent) and Aleksandra Cvetkovic-Gorovic Respondent (Appellant) Mark DeGroot, for the appellant Darko Cvetkovic, acting in person Heard: March 22, 2021 by video conference On appeal from the order of Justice Susan E. Healey of the Superior Court of Justice, dated August 1, 2019, with reasons at 2019 ONSC 4246. REASONS FOR DECISION [1] At the conclusion of oral submissions, we advised the parties that the appeal was dismissed with reasons to follow. These are our reasons. Facts [2] The appellant appeals from a final order terminating her spousal support as of August 1, 2019. The order under appeal was the result of a motion to change the consent final order of Mullins J., dated March 23, 2009 (the “2009 final order”), which notably required the respondent to pay child support for the two children of the marriage and spousal support for the appellant. The 2009 final order fixed spousal support at $1,400 per month based on an annual imputed income of $105,000 for the respondent, who was and remains self-employed, and $30,000 for the appellant. The 2009 final order provided that spousal support was to be reviewed four years from the date of the order, and that either party could make an application to the court “ [ i ] f the parties cannot agree on the amount and duration of spousal support to be paid to the [appellant] going forward”. It also provided for a change of the amount and duration of spousal support if there was a material change in either party’s circumstances, even if the change was foreseen or foreseeable. [3] The appellant brought a motion to change the 2009 final order almost five years after the 2009 final order, seeking to change the quantum of spousal support and child support based on her assertion that the respondent had not fully disclosed his income and assets at the time of the 2009 final order. She also asserted that the respondent’s income may have increased since the date of the 2009 final order. [4] The respondent brought his own motion to change the 2009 final order, seeking to terminate or reduce spousal support and child support. Among other things, the respondent asserted that the appellant was refusing to work at a full-time job despite having a “rich and versatile working experience and 13+ years of post-secondary education”, and he challenged the appellant’s level of income disclosure since 2006. [5] The order under appeal was made after a trial at which the parties were self-represented. The appellant appeals only the part of the order that terminated her spousal support effective August 1, 2019. Grounds of Appeal [6] There are three distinct grounds of appeal. The appellant submits that the trial judge erred: (1) in treating the trial as a variation proceeding instead of a review; (2) in terminating spousal support based on the material changes found;  and (3) in admitting and relying on the May 31, 2018 report of an expert who was jointly retained by the parties to provide an opinion as to the respondent’s income for support purposes for the years 2014 to 2017 (the “SLF Report”). [7] We do not give effect to any of these grounds of appeal. The Nature of the Proceeding [8] First, the appellant is correct that there is a difference between a “review” and a “variation”. A review permits an order to be revisited without a threshold determination of a material change in circumstances, while a variation includes a burden to establish changed circumstances, as required by s. 17(4.1) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.): Leskun v. Leskun , 2006 SCC 25, [2006] 1 S.C.R. 920, at paras. 35-37. That said, once the threshold to vary the existing order is met, both a review and a variation of spousal support consider the same objectives: those that are set out explicitly at ss. 15.2(6) and 17(7) of the Divorce Act . [9] The trial judge referred to the provisions of the 2009 final order that allow for a review of spousal support after four years and a change to the spousal support order if there is a material change in circumstances. Whether characterized as a review or a variation, we are satisfied that the trial judge considered all of the circumstances that were relevant to what she had to determine at the trial: whether, as the appellant asserted, the respondent had failed to make full disclosure of his financial circumstances at the time of the 2009 final order; whether the respondent’s income was higher than the income imputed in the 2009 final order; and whether, and if so, when, spousal support should terminate. The Respondent’s Income and the Termination of Spousal Support [10] Second, the appellant asserted at trial that the respondent’s imputed income in the 2009 final order ought to have been higher because the respondent was earning undisclosed income from a specific numbered company that he owned at the time of the 2009 final order. The trial judge considered the evidence and concluded that, although the numbered company was incorporated prior to the 2009 final order, there was no evidence of undeclared income from this company. Nor did the trial judge find that the respondent underreported his income in the years following the 2009 final order. After considering the evidence of the respondent’s line 150 income and the SLF Report addressing the respondent’s income for support purposes for the years 2014 to 2017, and rejecting the appellant’s unsupported allegations that the respondent had unreported cash or other income, the trial judge concluded that there was no evidence that the respondent had undeclared income before 2009 or that he underreported his income after the 2009 final order. [11] In deciding to terminate the appellant’s spousal support effective August 1, 2019, the trial judge considered the evidence that the appellant had not worked since 2015 and the appellant’s explanation that she was unable to work for medical reasons. The trial judge concluded, after reviewing the evidence, that the appellant had not shown that she had taken the necessary steps to become economically self-sufficient, and that she had not provided convincing evidence of her inability to secure and maintain employment. In particular, the trial judge referred to the amount of historical evidence for the appellant’s income as “scant”. [12] We disagree with the appellant’s submission that the trial judge improperly restricted her from leading evidence pre-dating the 2009 final order, including evidence relating to the factors the court would consider under ss. 15.2(4) and (6) of the Divorce Act . The appellant was intent on testifying about conduct of the respondent that occurred many years earlier and on raising various allegations about his behaviour. It was in this context that the trial judge noted, at para. 81 of her reasons, that she had to redirect the appellant “from talking about events that occurred prior to the 2009 [final] order, or issues that were simply not relevant to the issues to be decided by the court.” [13] This was a 16-year marriage where spousal support of $1,400 per month had been paid in excess of 10 years. According to the trial judge, the Spousal Support Advisory Guidelines ’ suggested range for spousal support would have been $1,528 to $2,037 for a duration of 6.5 to 13 years. The trial judge made a finding of fact that the appellant “[had] not shown that she [had] taken the necessary steps to become economically self-sufficient, and [had] not provided convincing evidence of her inability to secure and maintain employment.” The trial judge also found that the appellant had sufficient equity in her home to retire all of her outstanding debt. On these bases, and in the context of the Divorce Act ’s ss. 15.2(6) and 17(7) spousal support objectives, notably the promotion of economic self-sufficiency, the trial judge ordered that spousal support would terminate on the date of her order. [14] We see no error in the trial judge’s approach. She provided detailed and comprehensive reasons. Her conclusion was based on her assessment and weighing of the evidence, including her assessment of the credibility of the parties. The Expert Report [15] Third, we consider the appellant’s argument that the trial judge ought not to have admitted the SLF Report when its author was not called to testify as an expert witness. The trial judge admitted the report after concluding that it was both necessary and reliable, meeting the requirements for the admission of hearsay evidence. We see no error in principle that would cause us to interfere with this admissibility ruling. In any event, we note that the appellant did not clearly object to the admissibility of the SLF Report from the expert who was jointly retained and, in fact, relied on aspects of the SLF Report to advance her own case, notably to establish permissible or impermissible business expenses. In these circumstances, the appellant cannot now object to the fact that the trial judge relied on the SLF Report for other purposes. Disposition [16] For these reasons, the appeal is dismissed. [17] The appellant was capably represented by counsel who appeared on a pro bono basis. The respondent was self-represented. In all of the circumstances, we do not order costs on the appeal. “Fairburn A.C.J.O.” “K. van Rensburg J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Danesh v. Vahed, 2021 ONCA 189 DATE: 20210329 DOCKET: C68465 Lauwers, Trotter and Zarnett JJ.A. BETWEEN Mohmmad Danesh Plaintiff (Respondent) and Elahe Vahed and Remax Crossroads Realty Inc. Defendants (Appellant/Respondent) and Elahe Vahed Plaintiff by Counterclaim (Appellant) and Remax Crossroads Realty Inc., Mohmmad Danesh, and Michael Bury Defendants to the Counterclaim (Respondents) Shahzad Siddiqui, for the appellant Elahe Vahed Esmaeil Mehrabi, for the respondent Mohmmad Danesh Amanda Gibson, for the respondent Remax Crossroads Realty Inc. Michael Kestenberg, for the respondent Michael Bury Heard: March 19, 2021 by videoconference On appeal from the order of Justice Mario D. Faieta of the Superior Court of Justice, dated June 5, 2020 with reasons reported at 2020 ONSC 3525. REASONS FOR DECISION I. Introduction [1] The appellant, Elahe Vahed, was found by the motion judge to have breached an agreement to sell her condominium unit to the respondent, Mohammad Danesh. The motion judge ordered that the deposits Mr. Danesh had paid be returned to him, that Ms. Vahed pay damages to Mr. Danesh, and that Ms. Vahed’s counterclaim against Mr. Danesh and the respondents, Michael Bury and Remax Crossroads Realty Inc. (“Re/Max”) (her lawyer and the realtor, respectively, on the transaction) be dismissed. [2] Ms. Vahed appeals each of the dispositions except the dismissal of the counterclaim against Re/Max; however, she seeks leave to appeal the costs award made against her in favour of Re/Max. [3] The dispositions by the motion judge were made on motions for summary judgment brought by Mr. Danesh, Mr. Bury, and Re/Max. Ms. Vahed submits that the motion judge erred in granting summary judgment because there were genuine issues requiring a trial, and that he erred in principle in making a cost award against her in favour of Re/Max. She seeks to support her argument, in part, with fresh evidence, which she requests that this court consider. [4] For the reasons that follow, we dismiss the motion to admit fresh evidence, deny leave to appeal costs and dismiss the appeal. II. Background [5] In May 2018, Ms. Vahed entered into an agreement of purchase and sale (the “APS”) to sell a condominium unit in Markham, Ontario to Mr. Danesh. Mr. Danesh paid a $20,000 deposit to be held by Re/Max. Closing was originally agreed to occur on July 28, 2018, but was later extended, by a signed agreement between the parties, to September 6, 2018 on payment of a further $20,000 deposit by Mr. Danesh to Ms. Vahed. [6] On September 5, 2018, Ms. Vahed retained Mr. Bury to act for her on the sale. On that date, Mr. Danesh’s lawyer told Mr. Bury that Mr. Danesh would not be able to close on September 6 due to a problem in obtaining financing. On September 6, Mr. Danesh’s lawyer asked Mr. Bury for an extension of the closing date to September 25, 2018. Mr. Bury asked Ms. Vahed for instructions. [7] On September 6, by two emails, Ms. Vahed instructed Mr. Bury to agree to an extension to September 25, 2018, on two conditions. The first was that Mr. Danesh pay the carrying costs—mortgage payments, maintenance fees and taxes—on the property until September 25. The second was that if Mr. Danesh “won’t close by 25 th September I need the undertakings from the lawyers that he acknowledge that he is going to [lose] $40,000 deposits to me automatically”. [8] Mr. Bury’s evidence was that on September 6, he relayed Ms. Vahed’s terms to Mr. Danesh’s lawyer and obtained his agreement to the terms. Mr. Bury then signed and  hand-delivered a letter to Mr. Danesh’s lawyer, which stated: Further to the email exchange with your office today and telephone discussions, I am writing to confirm that Ms. Vahed has agreed to an extension of the closing in the above matter to September 25 th , 2018 with conditions (i.e. payment by your client of the carrying costs (Mortgage $1338.16, Maintenance Fee $347.20, Taxes $173 until closing, forfeiture of deposit if the deal does not close) and you have agreed to these terms. The carrying cost amounts in the letter were those provided by Ms. Vahed to Mr. Bury. [9] It does not appear that Mr. Bury provided a copy of this letter to Ms. Vahed. She emailed him on September 7, pointing out that the closing date had passed and she had received no reply. He advised her by email on September 8 that he had been told by Mr. Danesh’s lawyer that Mr. Danesh would be ready to close “early next week” and had agreed to “carry any costs as discussed”. [10] Mr. Bury gave evidence that he spoke to Ms. Vahed on September 11. She expressed doubt about whether the deal would go ahead. He told her that the purchaser had already agreed to her terms and that the closing had been extended to September 25. On the same date, Mr. Bury sent her a copy of an email from Mr. Danesh’s lawyer confirming that Mr. Danesh was “ready to close”, asking for a statement of adjustments and closing package, and stating, “I must bring your attention to this fact that [your] client agreed to extend the closing date to the 25 th day of September, 2018”. [11] Ms. Vahed responded that Mr. Bury had not told her anything about an extended closing until two days after the September 6 date, and pointed out that his September 8 email did not talk about a September 25 closing or confirm that there had been agreement to her condition that there be an undertaking that Mr. Danesh would lose the deposit if he did not close on September 25. On the same date, Ms. Vahed’s listing agent emailed Mr. Bury asserting that the purchaser had defaulted in closing on September 6, that there was no agreement to extend on that date, and suggesting that Mr. Bury was helping the purchaser to bully Ms. Vahed. [12] After sending further unanswered emails to Ms. Vahed, Mr. Bury emailed her on September 14 stating that, as he was not hearing back from her, he assumed that his services were no longer required. [13] Ms. Vahed engaged another lawyer, Mr. Vakili, who corresponded with Mr. Danesh’s lawyer. Ultimately, on September 25, 2018, Mr. Danesh, through his lawyer, advised that he was ready, willing, and able to close. On the same date, Ms. Vahed, through Mr. Vakili, advised that the APS had expired on September 6, and that no valid extension agreement had been made. [14] The deal did not close. Re/Max returned the first $20,000 deposit to Mr. Danesh. This litigation ensued. Mr. Danesh claimed that Ms. Vahed had breached the agreement by not closing on September 25, and that he was entitled to return of the deposits and damages. Ms. Vahed claimed that there was no extension beyond September 6, and that she was entitled to the deposits and damages. She also claimed against Mr. Bury for not following her instructions and against Re/Max for releasing the deposit to Mr. Danesh. III. The Motion Judge’s Decision [15] The motion judge was satisfied that the case was appropriate for summary judgment, as the facts could be efficiently and fairly determined on the basis of the affidavits, cross-examinations, and “extensive documentary record” before him. [16] The motion judge’s pivotal finding was that the letter dated September 6, 2018 from Mr. Bury to Mr. Danesh’s lawyer recorded the agreement they made and was signed and delivered by Mr. Bury on September 6. He rejected Ms. Vahed’s argument that there was a genuine issue requiring a trial about whether the letter was a fabrication created sometime after September 6. [17] The motion judge therefore concluded that the closing date under the APS had been extended until September 25, when it was breached by Ms. Vahed refusing to close. Accordingly, Mr. Danesh was entitled to the return of the deposits he paid and to his out of pocket expenses concerning the aborted transaction. Ms. Vahed’s counterclaim against Mr. Danesh for breach of the APS failed. Her counterclaim against Re/Max concerning its release to Mr. Danesh of the deposit it held similarly failed. Finally, her counterclaim against Mr. Bury failed. The motion judge was satisfied that Mr. Bury acted in accordance with her instructions in extending the closing to September 25, there was no evidence of any damage caused by any wrongdoing by Mr. Bury, and although punitive damages had been claimed, that was not a stand alone cause of action. [18] The motion judge awarded costs to each of Mr. Danesh, Mr. Bury, and Re/Max. IV. The Fresh Evidence Motion [19] Ms. Vahed seeks to introduce fresh evidence on appeal. She argues that it shows that Mr. Bury was provided, by Re/Max, with documents concerning the transaction before September 5, 2018 and that this would be relevant to his credibility. [20] The fresh evidence is not admissible. It could have been discovered with reasonable diligence before the hearing below. As well, in our view, it is not germane to the central issues and therefore could not have affected the result. V. The Appeal [21] Ms. Vahed argues that the motion judge erred in deciding the claims between her and Mr. Danesh, and between her and Mr. Bury, by summary judgment. She argues that there are genuine issues requiring a trial. [22] We disagree. As between Ms. Vahed and Mr. Danesh, whether there was any genuine issue requiring a trial turned on the September 6 letter confirming an agreement to extend the closing from September 6, when Mr. Danesh was not ready to close, to September 25, when Mr. Danesh was ready to close and Ms. Vahed was not. Ms. Vahed’s position was that the September 6 letter was an after the fact fabrication, and that therefore there was nothing in writing agreeing to an extension of the closing date made on September 6. [23] The motion judge was entitled to find that there was no genuine issue requiring a trial about whether the letter was a fabrication, rather than a letter written and signed as it purported to be that was delivered to Mr. Danesh’s lawyer on September 6. Although Ms. Vahed says there were “red flags” concerning the letter — primarily the lack of its timely provision to Ms. Vahed and the absence of specific reference to it in certain subsequent emails, the motion judge’s reasons show that he was alive to the relevant considerations. He gave cogent reasons for the conclusion he reached: I find that Vahed’s allegation that the Extension Letter was fabricated does not raise a triable issue. First, it would require this Court to find that both Bury and McKee, being officers of the Court, had lied about the existence of the Extension Letter and its delivery. Second, it ignores Vahed’s own evidence that she was told by Bury on September 8, 2018 that Danesh had agreed to carry the additional costs of the Condominium. Third, it ignores McKee’s letter to Bury dated September 11, 2018 where he acknowledges that Vahed had agreed to extend the closing date. Fourth, it ignores Bury’s email to Vahed on September 11, 2018 where he told her that Danesh had agreed to the extension with penalties. [24] The decision of a motion judge about whether there is a genuine issue for trial is entitled to deference on appeal: Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 81. We are not persuaded that the motion judge committed a palpable and overriding error that would justify appellate intervention. [25] Ms. Vahed also argues that there is a genuine issue requiring a trial about whether Mr. Bury breached his duties by not following Ms. Vahed’s instructions in recording the terms on which the closing would be extended in his September 6 letter. She says there is a difference between a lawyer’s undertaking regarding forfeiture of deposits, which she instructed him to obtain, and the language of the September 6 letter. We disagree. [26] First, the issue is irrelevant as far as Mr. Danesh is concerned, as there is no suggestion that he or his lawyer were aware of any limitation on Mr. Bury’s authority to agree to an extension on the terms set forth in the September 6 letter. [27] Second, as it pertains to the claim against Mr. Bury, we see no material, operative difference between what Mr. Bury was told to obtain — “undertakings from the lawyers that he acknowledge that he is going to [lose] $40,000 deposits to me automatically” — and the language of the September 6 letter —“…forfeiture of deposit if the deal does not close and you have agreed to these terms”. Accordingly, there is no error in the motion judge’s finding that in obtaining the agreement recorded in the September 6 letter, “Bury acted in accordance with Vahed’s instructions”. [28] However, even if there were a difference, there was no evidence that it caused any loss to Ms. Vahed. A difference about who was responsible to ensure Ms. Vahed received the deposits would matter only if she became entitled to the them because Mr. Danesh breached the APS and failed to close on September 25. . However, it was Ms. Vahed who failed to close — thus she never obtained an entitlement to the deposits. [29] Ms. Vahed does not appeal the dismissal of her claim against Re/Max. But she argues that Re/Max should not have been awarded costs against her because Re/Max prematurely released the deposit to Mr. Danesh without a court order or a mutual release. We see no merit in this argument. [30] Ms. Vahed advanced a substantial damages claim against Re/Max for its alleged wrongful release of the deposit, which the motion judge dismissed. Ms. Vahed was never prejudiced by the premature release of the deposit. The motion judge found that Re/Max had replaced the funds it prematurely released to Mr. Danesh — if Ms. Vahed had been found to be entitled to the deposit, she would have been paid. In any event, since she was not entitled to it, she suffered no loss due to Re/Max’s conduct. [31] In these circumstances, we see no error in principle in the motion judge having made a costs award in favour of Re/Max in light of its successful defence of the claim against it. VI. Conclusion [32] The motion to introduce fresh evidence is dismissed. Leave to appeal the costs award in favour of Re/Max is denied. The appeal is dismissed. [33] The respondents are entitled to costs payable by Ms. Vahed as follows: to Mr. Danesh, $7,500; to Mr. Bury, $7,500; and to Re/Max, $5,000. These amounts are inclusive of disbursements and applicable taxes. “P. Lauwers J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Davidoff v. Paderewski Society Home (Niagara), 2021 ONCA 194 DATE: 20210326 DOCKET: C68308 Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A. BETWEEN Alexander Davidoff Plaintiff (Responding Party/Appellant) and Paderewski Society Home (Niagara), Rachel (nee: Slingerland) Goerz (LSUC #63876V) and Niagara Regional Housing (NRH) Defendants (Moving Parties/Respondents) AND BETWEEN Alexandra Davidoff Plaintiff (Responding Party/Appellant) and Paderewski Society Home (Niagara) and Rachel (nee: Slingerland) Goerz (LSUC #63876V) Defendants (Moving Parties/Respondents) Alexander Davidoff, acting in person Alexandra Davidoff, acting in person Vanda A. Santini and Kristen Bailey, for the respondent Paderewski Society Home (Niagara) Michael R. Kestenberg, for the respondent Rachel Goerz Scott A. Crocco, for the respondent Niagara Regional Housing Heard and released orally: March 25, 2021 by video conference On appeal from the judgments of Justice Paul R. Sweeny of the Superior Court of Justice, dated February 25, 2020, with reasons reported at 2020 ONSC 1162 and 2020 ONSC 1171. REASONS FOR DECISION [1] The appellants raise one ground of appeal. They are of the view that the dismissal of their claims involves a reasonable apprehension of bias. Although they correctly articulate the legal test for a reasonable apprehension of bias, in our view, there is no basis to support this very serious legal claim. Moreover, there is no basis to support the suggestion made by the appellants that any counsel on this matter behaved inappropriately. [2] The appeal is dismissed. [3] Costs are payable by the appellants, jointly and severally, in the following amounts: (a) $5,000 to the respondent Rachel Goerz; (b) $2,500 to the respondent Niagara Regional Housing; and (c) $3,000 to the respondent Paderewski Society Home. “Fairburn A.C.J.O.” “K. van Rensburg J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Davidson (Re), 2021 ONCA 387 DATE: 20210603 DOCKET: C68883 Simmons, Gillese and Huscroft JJ.A. IN THE MATTER OF:  Roberte Davidson AN APPEAL UNDER PART XX.1 OF THE CODE Meaghan McMahon, for the appellant Michael Dineen, for the respondent, Attorney General of Ontario Marie-Pierre Pilon, for the respondent, Person in Charge of The Royal Ottawa Mental Health Centre Heard and released orally: May 27, 2021 by video conference On appeal against the disposition of the Ontario Review Board dated, October 20, 2020. REASONS FOR DECISION [1] We reject the appellant’s submission that in imposing a detention order with community living privileges, the Ontario Review Board (the “Board”) erred in failing to adequately consider the option of a conditional discharge. [2] Although the Board’s analysis on this issue was brief, we are satisfied that, read fairly, the treating psychiatrist’s opinion supported the Board’s conclusion that a detention order was the least onerous, least restrictive disposition and that the Board relied on that opinion in making its disposition. [3] The psychiatrist’s opinion included factors such as the appellant’s poor insight into her illness (schizoaffective disorder, bipolar type), lack of awareness of her symptoms and ambivalence to taking medication. In accordance with the terms of the immediately preceding disposition, a June 2019 detention order with community living privileges, the appellant progressed to living in her own apartment as of March 2020. She was readmitted to The Royal Ottawa Mental Health Centre (the “Hospital”) in April 2020 but released within 20 days. We consider that the disposition imposed by the Board can be viewed as a stepping-stone to a conditional discharge, assuming a period of stability. [4] As for the appeal of the Board’s disposition concerning the temporary restriction of liberty in April 2020, we conclude the contested issues surrounding the practicalities of readmitting the appellant to the Hospital are moot and unlikely to arise again because they were rooted in early stage COVID-19 protocols. That said, the Board’s reasons properly alerted the Hospital that, in future, where a patient is admitted from the community having recently been assessed by her treating physician, the clinical opinion of the doctor should be taken into account. The Board’s reasons sufficiently put the Hospital on notice that reliance on a blanket policy and the failure to make an individual assessment in this type of case could lead to unjustified restrictions of liberty. [5] The appeal is therefore dismissed. “Janet Simmons J.A.” “E.E. Gillese J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Davidson (Re), 2021 ONCA 135 DATE: 20210302 DOCKET: C68221 MacPherson, Gillese and Nordheimer JJ.A. In the Matter of the Bankruptcy of Christine Ann Davidson (aka Christine Ann Ottewell) of the Town of Nottawa, in the County of Simcoe, in the Province of Ontario Summary Administration Sean N. Zeitz and Randy Schliemann, for the appellant Dale Ottewell Brandon Jaffe and Elaine S. Peritz, for the respondents Christine Ann Davidson and Eleanor McKay Heard: February 25, 2021 by video conference On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated March 11, 2020, with reasons reported at 2020 ONSC 1379, 79 C.B.R. (6th) 142 dismissing appeals from the order of Master May J. Jean dated September 16, 2019 and from the order of Master Janet E. Mills dated September 17, 2019. Nordheimer J.A.: [1] Dale Ottewell, a creditor of the bankrupt, appeals from the order of Justice Dietrich (“appeal judge”) that dismissed his appeals from the orders of Master Jean, and of Master Mills, each sitting as Registrars in Bankruptcy. Master Jean dismissed a motion by the appellant for leave to commence a proceeding under s. 38 of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 (“ BIA ”). Master Mills dismissed a motion by the appellant for leave to examine the bankrupt, and a number of individuals associated with the bankrupt, under s. 163(2) of the BIA . At the conclusion of the oral hearing of this appeal, the parties were advised that the appeal was dismissed for reasons to follow. I now provide those reasons. [2] By way of brief background, the appellant is the former spouse of the bankrupt. While the bankruptcy proceedings were going on, there were concurrent family law proceedings underway between the appellant and the bankrupt. The issues raised here involve a house whose registered owner is the bankrupt’s mother but in which the bankrupt resides. The appellant sought to have the house included as an asset in the bankrupt’s estate, claiming that it is beneficially owned by the bankrupt. When the Trustee refused to pursue that claim, the appellant sought leave to commence his own proceeding for that relief. Meanwhile, however, the appellant had consented to an order in the family law proceedings which provided that the house “shall not form part of [his former spouse’s] property, assets or estate for any purpose.” I: Is there an appeal as of right [3] The first issue to be addressed is whether the appellant has a right of appeal from the order of the appeal judge in either of its aspects or whether he must obtain leave to appeal. That issue turns on the wording of s. 193 of the BIA which reads: Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases: (a) if the point at issue involves future rights; (b) if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings; (c) if the property involved in the appeal exceeds in value ten thousand dollars; (d) from the grant of or refusal to grant a discharge if the aggregate unpaid claims of creditors exceed five hundred dollars; and (e) in any other case by leave of a judge of the Court of Appeal. [4] The appellant contends that he has a right of appeal under any of s. 193(a), (b) or (c) of the BIA . I do not agree that the appellant has a right of appeal regarding either aspect of the appeal judge’s order under s. 193(a) or (b). Neither aspect of the order involves future rights as that expression has been defined in the case law. Future rights are future legal rights, not procedural rights or commercial advantages or disadvantages that may accrue from the order challenged on appeal : Re Ravelston Corp. (2005), 24 C.B.R. (5th) 256 (Ont. C.A.), at para. 18. [5] Similarly, neither aspect of the order is likely to affect other cases of a similar nature under s. 193(b). The existing case law establishes that s. 193(b) “must concern ‘real disputes’ likely to affect other cases raising the same or similar issues in the same bankruptcy or receivership proceedings”: 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd. , 2016 ONCA 225, 35 C.B.R. (6th) 102, at para. 32. [6] In terms of s. 193(c), it does not apply to the aspect of the order regarding the examination of the bankrupt and others: see Enroute Imports Inc. (Re) , 2016 ONCA 247, 35 C.B.R. (6th) 1, at para. 6. That aspect dealt with a strictly procedural matter that did not involve property at all. It dealt only with the examination rights available under the BIA . If the appellant wishes to appeal that aspect of the order, he requires leave under s. 193(e). [7] On that point, I would not grant leave to appeal. The proposed appeal does not satisfy any of the factors normally considered in granting leave to appeal. It does not raise any issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole; it is not prima facie meritorious, and it would unduly hinder the progress of the bankruptcy proceeding: Business Development Bank of Canada v. Pine Tree Resorts Inc. , 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29. [8] The issue regarding any appeal of the aspect of the order dealing with the appellant’s motion seeking leave to proceed under s. 38 is more problematic, however. That aspect involves a proposed proceeding, the purpose of which is to seek to bring an asset, namely the house, into the bankrupt’s estate. The house has a value in excess of $200,000. [9] There is an ongoing debate among provincial appellate courts regarding the proper scope of s. 193(c). There are decisions suggesting that the section should be given a narrow interpretation. At the same time, there are other decisions that suggest that a broad view ought to be taken. [10] Given the ultimate result in this case, a resolution of this issue is best left to another day. I will assume, for the purposes of this appeal, that the appellant has a right of appeal under s. 193(c) from the s. 38 determination. II: The appeal [11] My reasons for the dismissal of the appeal differ in part from the courts below. In that regard, it is important to remember the distinction between the appellant’s personal status and his status as a creditor of the bankrupt. [12] The family law order could not affect the Trustee’s rights to pursue any claim, including a claim that the house should be part of the bankrupt’s estate. The family law proceeding did not involve the Trustee and is not binding on the Trustee. In considering this issue, it is important to remember the nature of the relief that a creditor seeks under s. 38. It is worth reproducing the wording of ss.38(1) and (2), which read: (1) Where a creditor requests the trustee to take any proceeding that in his opinion would be for the benefit of the estate of a bankrupt and the trustee refuses or neglects to take the proceeding, the creditor may obtain from the court an order authorizing him to take the proceeding in his own name and at his own expense and risk, on notice being given the other creditors of the contemplated proceeding, and on such other terms and conditions as the court may direct. (2) On an order under subsection (1) being made, the trustee shall assign and transfer to the creditor all his right, title and interest in the chose in action or subject-matter of the proceeding, including any document in support thereof. [13] As the section makes clear, what a creditor obtains by way of a request under the section is the right to pursue a proceeding that the Trustee refuses or neglects to take. That is why the creditor is given an assignment of the Trustee’s interest in the chose in action or subject matter of the proceeding under s. 38(2). The creditor is not pursuing a personal claim: see Re Zammit (1998), 3 C.B.R. (4th) 193 (Ont. Gen. Div.) at para. 7. [14] This distinction is important to the proper application of the BIA . However, this concern does not alter the correctness of the result reached by the courts below. A request to commence a proceeding under s. 38 is not an absolute right. It is a discretionary remedy. It requires that the creditor show that there is some merit to the proposed claim. As Blair J. said in Re Jolub Construction Ltd. (1993), 21 C.B.R. (3d) 313, (Ont. Gen. Div.), at para. 19: Without intending to introduce another phrase into the melee, a creditor must establish, in my opinion, that there is a sufficient case on the merits — as contemplated by the thrust of those tests outlined in earlier cases — to warrant the Court's approval to proceed, in the circumstances. [15] The Master found that the appellant was attempting to do indirectly what he had expressly agreed not to do in the family law proceedings, that is, bring the house into his spouse’s (the bankrupt’s) assets. On appeal, the appeal judge said, at para. 33: I find that Master Jean did not err in finding that the appellant failed to establish threshold merit to the proceeding in the face of the Vallee Order and that it would be inequitable to permit him to pursue an interest in the Property having consented to that Order. I also find that she did not err in declining to exercise her discretion to permit the appellant to step into the shoes of the Trustee to indirectly do what he had expressly agreed not to do. I find no error in principle or in law in her decision. [16] There is no error in the appeal judge’s conclusion in this respect. The appellant has also failed to show that the Master’s exercise of her discretion under s. 38 was unreasonable. [17] It is for these reasons that the appeal was dismissed. The respondents are entitled to their costs of the appeal. They have agreed on the costs of a motion that was heard by Coroza J.A. at $7,500. They do not agree on the costs of the appeal. I would fix those costs at $10,000 for a total costs award of $17,500 inclusive of disbursements and HST. Released: March 2, 2021 “J.C.M” “I.V.B. Nordheimer J.A.” “I agree. J.C. MacPherson J.A.” “I agree. E.E. Gillese J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Dhatt v. Beer, 2021 ONCA 137 DATE: 20210304 DOCKET: C68375 and C68539 Strathy C.J.O., Brown and Miller JJ.A. BETWEEN Mandeep Dhatt and Kulwinder Dhatt Plaintiffs (Respondents) and Derek Beer and Indira Beer Defendants (Appellants) and Jay Brijpaul and Re/Max West Realty Inc., Brokerage Third Parties (Respondents) David P. Lees and Zachary Silverberg, for the appellants Arnie Herschorn, for the respondents, Mandeep Dhatt and Kulwinder Dhatt Serena L. Rosenberg, for the respondents, Jay Brijpaul and Re/Max West Realty Inc. Heard: February 10, 2021 by video conference On appeal from the judgment and order of Justice Carole J. Brown of the Superior Court of Justice, dated May 1, 2020 and July 30, 2020, respectively, with reasons for judgment reported at 2020 ONSC 2729. BROWN J.A.: I.        OVERVIEW [1] This appeal raises two main issues. First, did the trial judge unreasonably exercise her discretion by refusing the requests of the appellants, Derek Beer and Indira Beer, to adjourn the trial? Second, did the trial judge err in granting the respondents, Mandeep Dhatt and Kulwinder Dhatt, specific performance of the January 22, 2016 agreement of purchase and sale to buy the Beers’ Brampton residential property (the “Agreement”)? [2] When the Beers refused to close the Agreement, the Dhatts sued for specific performance. The Beers defended, pleading that the Agreement was invalid. They brought a third party claim against their real estate agent, Jay Brijpaul, and his brokerage, Re/Max West Realty Inc., Brokerage (the “Re/Max Third Parties”). [3] By judgment dated May 1, 2020 (the “Judgment”), the trial judge granted the Dhatts specific performance and dismissed the third party claim. By order dated July 30, 2020, the trial judge appointed a lawyer to act for the Beers and close the transaction (the “Transaction Order”). [4] The Beers appeal both the Judgment and the Transaction Order. [5] By order dated August 28, 2020, Zarnett J.A. refused to stay the Judgment and Transaction Order pending appeal: Dhatt v. Beer, 2020 ONCA 545, 449 D.L.R. (4th) 263. As a result, the Dhatts took possession of the property in September 2020, but the closing of the transaction awaits the disposition of these appeals. [6] The Beers raise three grounds of appeal, arguing that the trial judge erred in: (i) refusing to grant them an adjournment of the trial; (ii) granting the Dhatts specific performance; and (iii) awarding substantial indemnity costs against them. [7] For the reasons set out below, I would dismiss the appeal. II.       FIRST GROUND OF APPEAL: THE REFUSAL TO ADJOURN THE TRIAL [8] The Beers submit that the trial judge failed to exercise her discretion judicially by refusing their request for an adjournment on the first day of trial and refusing their subsequent requests for an adjournment on medical grounds. [9] I see no error by the trial judge in exercising her discretion that would merit appellate intervention. A. The governing principles [10] A judge may postpone or adjourn a civil trial to such time and place, and on such terms, as are just: Rules of Civil Procedure , r. 52.02. The principles governing a trial judge’s exercise of that discretion were set out in the majority and dissenting reasons in Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.). Both must be read together. In his dissent, Laskin J.A. summarized several of the main principles, at para. 14: A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. The majority, Doherty and Catzman JJ.A., added a further factor stating, at para. 27: I have had the privilege of reading the lucid reasons of Laskin J.A. I adopt his summary of the facts and his statement of the principles governing this appeal. I would only add that in determining whether to grant an adjournment in this case, the trial judge had to consider not only the orderly processing of civil trials, but the need to effectively enforce court orders. I think the refusal of the adjournment in this case was justified principally because the appellant all but ignored the order of the court made in November. He made virtually no attempt to retain a lawyer who could act for him on the scheduled trial date, or to pay even part of the costs order made against him. [1] [11] Those general principles must be applied with a stance of deference to the front-line trial judge. As stated by the majority in Khimji , at para. 36: This court sits at a distance from the day-to-day operation of trial courts. That distance must impair this court's ability to review decisions such as the one under appeal. Strong deference is due to the decision of those in the trial courts who are responsible for the day-to-day maintenance of an efficient and just system of civil trials. [12] Since Khimji was decided in 2004, an increasing degree of pre-trial case management has been applied to civil actions in the Superior Court of Justice. One object of the pre-trial case management process is to ensure that parties meet the trial date set for their action. [13] The trial of the present action was subject to the Toronto Region’s “Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region”, (July 1, 2015). Section 71 deals with trial dates, stating that: “Once trial dates are set, there will be no adjournments of the trial except in extenuating and exceptional circumstances .” [Emphasis added.] B. The refusal of the adjournment request on the first day of trial The issue stated [14] The Beers had been represented by counsel until April 2018, when their lawyer got off the record due to non-payment of accounts. At a November 2018 Trial Scheduling Court, Mr. Beer stated that he would retain counsel. [15] The matter was put over to the January 2019 Trial Scheduling Court. At that time, Mr. Beer advised that the defendants had not retained counsel. Nor had they filed the third party record as they had been ordered to do in November 2018. The presiding judge scheduled the 10-day trial for March 2, 2020 and ordered the third party record to be filed within 60 days. The Beers failed to do so. [16] At a December 2019 pre-trial conference, the Beers were ordered to: (i) file the third party record by year’s end; (ii) advise by January 6, 2020 whether they planned to retain counsel and, if so, who; and (iii) provide a list of their witnesses by that date. The Beers did not comply with those orders. [17] A week before the trial was to start, the Beers retained a lawyer with the limited mandate of requesting an adjournment of the trial (the “Adjournment Counsel”). That lawyer appeared on the first day of the trial. Adjournment Counsel explained his limited mandate and made it clear that even if an adjournment was granted, the Beers would likely be representing themselves. [18] The main ground advanced for an adjournment was that the Beers’ former lawyer had been asserting a solicitor’s lien over the file and its documents for the better part of two years, as a result of which the Beers had few relevant documents. The former lawyer had obtained judgment for the amount due under the accounts. Adjournment Counsel informed the court that the Beers could not pay their former lawyer. [19] At the same time, Adjournment Counsel advised that another lawyer of the Beers, who had acted for them in the enforcement proceedings brought by their former lawyer, also had some documents but he had not been able to reach that lawyer. [20] Adjournment Counsel requested an adjournment until the Beers had dealt with the matters involving their former lawyer, including a pending sheriff’s sale of the Brampton property in satisfaction of their former lawyer’s judgment. Adjournment Counsel’s instructions only permitted him to advise the court that the Beers were “willing and able to cooperate in scheduling new dates for the trial.” In essence, the Beers were requesting an indefinite adjournment to no fixed date. [21] The adjournment was opposed by the Dhatts and the Re/Max Third Parties, especially given the failure of the Beers to propose a definite date for the resumption of the trial. The trial judge refused to grant an adjournment, stating in her ruling: Not until last week did [the Beers] retain counsel, but only for the limited purpose of seeking an adjournment. Even were an adjournment granted, the situation would ultimately be the same, namely that the defendants would be self-represented. The defendants have known for two years that they should retain counsel but did so only at the very last moment and only for the limited purpose of seeking an adjournment. I am not satisfied that in all of the circumstances, an adjournment should be granted. The trial will proceed. [22] Given the representation by Adjournment Counsel that the Beers lacked the documents needed for the trial, the trial judge ordered that “the plaintiff and third party provide their briefs of documents to the defendants by the end of the day today. We will proceed with the trial tomorrow at 11 AM.” Analysis [23] The Beers submit that the trial judge erred in refusing to grant their request for an adjournment on the first day of trial for two reasons. First, it was only their first request for an adjournment. Second, the Beers were self-represented and the denial of an adjournment was inconsistent with the trial judge’s duty to self-represented litigants to acquaint them with courtroom procedure and the rules of evidence so that they received a fair trial: Morwald-Benevides v. Benevides , 2019 ONCA 1023, 148 O.R. (3d) 305, at para. 34. [24] I see no merit in either submission. [25] If at some time in the past there was a sense that a party had some sort of presumptive entitlement to one adjournment of a set trial date, those days are long gone. As the Toronto Region Practice Direction clearly states, once a trial date is set, there will be no adjournment of the trial “except in extenuating and exceptional circumstances.” The responsibility squarely falls on the party requesting an adjournment of a set trial date to demonstrate extenuating and exceptional circumstances. [26] Second, although a trial judge does have a duty to ensure self-represented parties receive a fair trial, as pointed out by the majority in Khimji a self-represented litigant’s refusal to comply with pre-trial orders and failure to use time granted by the court to find a lawyer, may weigh heavily against that litigant’s request for an adjournment of a set trial date. [27] As well, the Canadian Judicial Council’s 2006 Statement of Principles on Self-represented Litigants and Accused Persons , endorsed by the Supreme Court of Canada in Pintea v. Johns , 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, states, at p. 9, that self-represented persons are expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case and respect the court process. The Statement notes that judges have no obligation to assist a self-represented person who makes no reasonable effort to prepare their own case: at p. 6, Section C, Principle 4. [28] Further, the following statement by the majority of this court in Khimji , at para. 35, applies equally to parties represented by counsel and those who are self-represented: Individual litigants have a right to pursue and defend their respective claims. They must do so, however, within a court structure that must accommodate thousands of individual litigants. That system can function effectively only when litigants take scheduling commitments seriously and make genuine efforts to comply with court orders relating to adjournments and related matters. [29] In the present case, the Beers had been given lengthy advance notice of the trial date and ample time to retain a lawyer; they had the better part of two years to make arrangements to obtain relevant trial documents from opposing counsel; the action had been marked peremptory to the Beers; the Beers retained a lawyer at the last minute only for the limited purpose of seeking an adjournment of the trial date; they did not propose a new trial date; they failed to comply with the orders of the court to file a third party record and deliver a list of witnesses; and they made no reasonable effort to prepare their case. Given those facts, I see absolutely no error in the trial judge’s refusal to grant the Beers’ request for an adjournment on the first day of trial. C. The refusal to grant further adjournment requests The issue stated [30] On subsequent trial days further adjournment requests by the Beers ensued, this time based on their medical conditions. [31] When the trial resumed on March 3, 2020, the Beers attended; their Adjournment Counsel did not. Although opposing counsel had provided them with the documents ordered by the trial judge, the Beers did not bring them to the trial. Mrs. Beer informed the court that she had a four-hour medical appointment scheduled for the following morning at a hospital. When the trial judge sought further details about the matter, Mrs. Beer advised that she was getting a “panic attack”.  As the discussion continued, Mrs. Beer initially advised that she would call the hospital and cancel the appointment, then stated she would keep the appointment, miss the second day of trial, leaving matters to her co-defendant husband. [32] The trial judge next asked plaintiffs’ counsel to begin his opening submissions. Thereupon Mrs. Beer began to make noises, which prevented the trial judge from hearing the submissions. Mrs. Beer left the courtroom with her husband and requested an ambulance. One came, and Mrs. Beer and her husband went with the paramedics. A brief recess was taken. On the resumption of court, counsel for the Re/Max Third Parties informed the trial judge that she understood from the Beers’ former lawyer “this exact thing” had happened at a judgment debtor examination conducted by the former counsel. The trial judge asked counsel to contact the Beers to advise that the trial would resume the following day at 10:00 a.m. [33] Upon the resumption of the trial on the third day, March 4, 2020, the Beers were not present. Counsel for the Re/Max Third Parties had received a text from Mr. Beer stating that he was not feeling well, was stressed out, and could not attend. The court and counsel had received some notes from the Beers about the previous day’s trip to a hospital emergency ward where both had been examined and discharged. The diagnosis for Mrs. Beer was anxiety; for her husband, a psychosocial problem. After hearing submissions from counsel, the trial judge took a brief recess. Upon resuming, the trial judge gave oral reasons in which she reviewed the events and the medical information. She directed that the trial proceed, concluding that the Beers were attempting to delay the trial further. The Dhatts’ counsel completed his opening submission. [34] Following a recess, the trial judge re-considered her decision. She did not proceed to hear the Dhatts’ first witness. Instead, she arranged for her ruling to be sent to the Beers, together with a direction that they attend at court the following morning when the trial would proceed, with or without them. [35] The trial resumed on the fourth day, March 5, 2020. Mrs. Beer attended; Mr. Beer did not. Mrs. Beer informed the court of four things. First, she had received the trial judge’s endorsement of the previous day but did not read it. Second, her husband was not well. Third, she took the position that her husband’s name was “not on the house” and she did not trust him to make any decision. In fact, the Beers owned the house as co-tenants. Finally, she presented a doctor’s note that stated Mrs. Beer was “experiencing worsening anxiety related to recent legal proceedings” and was “not in the state of mind to proceed with further legal proceedings right now, until she is deemed better prepared.” [36] After considering the materials, the trial judge delivered oral reasons directing that the trial proceed. While acknowledging that Mrs. Beer was experiencing anxiety due to the legal proceeding, she observed that was “very common for many participants.” She repeated that the Beers had attempted on many occasions to delay the proceedings, and then stated: The trial will proceed. There is no justification or explanation for the defendants not to be present. Mr. Beer cannot be told by his wife not to be present at trial for the reason she has given. There is no justification and no evidence to support his not being present. As a result, I order that this trial proceed. Mrs. Beer is here now, if she wishes to stay. If not, and she's already told her husband apparently not to be present, so that he is not here either. But we will proceed with the trial today. [37] Mrs. Beer thereupon repeated her request for time to get a lawyer. The trial judge refused. Mrs. Beer left the courtroom, and the trial proceeded in the absence of the Beers. Analysis [38] On appeal, the Beers submit that their medical circumstances on the second, third, and fourth days of the trial were extenuating and exceptional, and the trial judge erred by failing to grant them an adjournment. [39] I am not persuaded by that submission. As revealed by the events of those days as described above, the trial judge proceeded in a measured way, affording the Beers fair opportunities over the course of three days to explain their situation. The trial judge’s endorsements disclose that she reviewed all the medical documentation provided by the Beers and took that information into account when assessing the interests of all parties to the proceeding. I see no basis for appellate intervention in the circumstances. III.      SECOND GROUND OF APPEAL: THE GRANT OF SPECIFIC PERFORMANCE [40] The Beers submit that the trial judge erred in granting “the extraordinary remedy of specific performance”. They contend that the characteristics of the property did not make it unique and the Dhatts’ losses could be quantified and remedied by an award of damages. [41] I do not accept that submission. [42] To describe the remedy of specific performance as an “extraordinary remedy” is a misdescription. In determining whether to grant specific performance, the fundamental question is whether the plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties: Lucas v. 1858793 Ontario Inc. (Howard Park) , 2021 ONCA 52, at para. 70, quoting, with approval, Lax J. in John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2001), 56 O.R. (3d) 341 (S.C.), at para. 55, aff’d (2003) 63 O.R. (3d) 304 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 145. As stated by this court in Lucas at para. 71: Whether specific performance is to be awarded or not is therefore a question that is rooted firmly in the facts of an individual case … In determining whether a plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties, courts typically examine and weigh together three factors: (i) the nature of the property involved; (ii) the related question of the inadequacy of damages as a remedy; and (iii) the behaviour of the parties, having regard to the equitable nature of the remedy … Whether a property is unique, either by virtue of its nature or the features of the contract for its purchase and sale, operates as only one of several factors a court must consider when determining entitlement to specific performance. [Citations omitted.] [43] The trial judge identified and applied the governing principles. Her conclusion, at paras. 39 and 40, that the Dhatts had demonstrated that the property possessed unique qualities was fully supported by the evidence. As was her finding that damages would not be an adequate remedy in the circumstances given the evidence that the Beers lacked sufficient funds to pay a damages award: at paras. 43-46. [44] Accordingly, I see no basis to interfere with the trial judge’s grant of specific performance. IV.     THIRD GROUND OF APPEAL: THE AWARD OF SUBSTANTIAL INDEMNITY COSTS [45] As their final ground of appeal, the Beers submit that the trial judge erred in awarding substantial indemnity costs to the Dhatts ($112,347.63) and the Re/Max Third Parties ($88,178.52). The Beers submit that the trial judge did not provide any reasons, with the result that the costs should be reduced to the partial indemnity level. [46] I do not accept this submission. The trial judge explained, at paras. 54-56, why she awarded costs on a substantial indemnity basis: (i) the Beers attempted to delay or prolong the proceeding, to the point of failing to attend the trial despite being ordered to do so; and (ii) the Beers’ failure to close the transaction and failure to appear at trial were “without justification” and “egregious”. [47] The trial judge relied mainly on the litigation misconduct of the Beers in awarding costs on the elevated scale of substantial indemnity. I see no error in principle by the trial judge nor were the resulting cost awards unreasonable in the circumstances. V.      DISPOSITION [48] For the reasons set out above, I would dismiss the appeal. [49] If the parties are unable to agree on the costs of the appeal, they may submit brief cost submissions (not to exceed three pages) within 10 days of the release of these reasons. Released: March 4, 2021 “G.R.S.” “David Brown J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. B.W. Miller J.A.” [1] A helpful summary of the specific factors a trial judge should take into account when faced with an adjournment request can be found in Trade Capital Finance Corp. v. Cook , 2016 ONSC 3511, at paras. 8-11.

COURT OF APPEAL FOR ONTARIO CITATION: Dia v. Calypso Theme Waterpark, 2021 ONCA 343 DATE: 20210520 DOCKET: C68635 Tulloch, Nordheimer and Jamal JJ.A. BETWEEN Ihab Dia, Faten Zeineddine, Samer Dia (a minor by his litigation guardian Ihab Dia), Anisah Dia (a minor by her litigation guardian Ihab Dia), Ali Dia (a minor by his litigation guardian Ihab Dia), and Mohamed Dia (a minor by his litigation guardian Ihab Dia) Plaintiffs (Appellants) and Calypso Theme Waterpark, Jacques Bui, Jamie Crowder, Khamea Louangrath, Paolo Messina and Shaun Wheeler Defendants ( Respondent ) AND BETWEEN Paolo Messina Plaintiff by Counterclaim and Samer Dia and Mohamed Zeineddine Defendants by Counterclaim Katie Black, for the appellants Danesh Rana, for the respondent Heard: in writing On appeal from the order of Justice Heather J. Williams of the Superior Court of Justice, dated April 27, 2020, with reasons reported at 2020 ONSC 2601, and from the costs endorsement, dated August 29, 2020, with reasons reported at 2020 ONSC 5191. COSTS ENDORSEMENT [1] On April 29, 2021, we released our decision in which we allowed the appeal in this matter and awarded the appellants their costs of the appeal. We invited written submissions regarding the costs of the summary judgment motion below. [2] We have now received and reviewed the written submissions of the appellants. The respondent declined to provide any submissions. [3] In the result, we award the appellants their costs in responding to the motion for summary judgment fixed in the amount of $3,500 inclusive of disbursements and HST. “M. Tulloch J.A.” “I.V.B. Nordheimer J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141 DATE: 20210305 DOCKET: C67664 & C67726 Pepall, Benotto and Coroza JJ.A. BETWEEN Mary Arlene Dosen and Rudolf Dosen Plaintiffs and Meloche Monnex Financial Services Inc. (c.o.b. as Security National Insurance Company) and Venmar Ventilation ULC Defendants ( Respondent ) and Fasco Motors Limited, Von Weise of Canada Company and Regal-Beloit Corporation Third Parties (Appellants) J. Thomas Curry, Scott Rollwagen and Sarah Bittman, for the appellants M. Gosia Bawolska and Kara L. Denny, for the respondent Heard: September 24, 2020 by video conference On appeal from the order of Justice Kim Carpenter-Gunn of the Superior Court of Justice, dated October 30, 2019. Coroza J.A.: I. OVERVIEW [1] On August 26, 2013, a fire broke out in the home of Mary Arlene and Rudolf Dosen (the “Dosens”) in Ancaster, Ontario, causing significant damage. The Dosens allege that the fire originated in a heat recovery ventilation unit (“HRV”) in their home. HRVs are designed to bring fresh outside air inside a building while expelling stale indoor air. The HRV contains a motor which powers the blower assembly inside the unit. The Dosens allege that the respondent, Venmar Ventilation ULC (“Venmar”), manufactured the HRV, and the appellants (“Fasco”), manufactured the motor. [2] On July 9, 2015, the Dosens commenced an action against Venmar (the “Main Action”), claiming that Venmar was liable for manufacturing and distributing a defective HRV that caused the fire. [3] On July 19, 2016, Venmar issued a third-party claim against Fasco for contribution and indemnity for any damages for which Venmar might be found liable to the Dosens in the Main Action. In response, Fasco issued statements of defence to the Dosens’ claim and to Venmar’s third-party claim on May 1, 2017. [4] A companion action was commenced on August 14, 2015, by the Dosens’ insurer against both Venmar and Fasco for losses arising under a subrogated insurance policy due to the fire (the “Companion Action”). Fasco issued a statement of defence to this claim and a crossclaim against Venmar on February 4, 2016. On June 14, 2017, Venmar also issued a statement of defence and crossclaim for contribution and indemnity against Fasco. [5] Fasco’s defences are substantially the same, with respect to Venmar’s third-party claim and crossclaim for contribution and indemnity in the Main Action and Companion Action, respectively (collectively, the “Ontario Actions”). Fasco’s pleadings allege that even if the fire originated in a motor it manufactured, contained within the HRV, the fire was nonetheless caused by Venmar’s negligence in the assembly, testing, and use of certain components in the HRV, and in Venmar’s failure to adequately warn the Dosens and other customers about the danger of the HRV. Fasco also argues that it used a standard form contract in supplying motors to Venmar, which provided for its indemnification in the event of litigation. [6] The trial of the Ontario Actions was scheduled to begin on November 18, 2019. However, on October 4, 2019, Venmar brought a motion under r. 21.01(3)(d) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to strike Fasco’s defences to Venmar’s claims for contribution and indemnity on the basis of res judicata and abuse of process. Specifically, Venmar argued that the Quebec Superior Court and Quebec Court of Appeal had already decided the legal and factual issues between Venmar and Fasco, in earlier proceedings. Those proceedings related to a house fire, involving a Venmar HRV and a Fasco motor, in Quebec City, on April 11, 2007. [7] The motion judge heard Venmar’s motion on October 28 and 29, 2019, three weeks before the scheduled start of trial, and struck Fasco’s statement of defence to Venmar’s third-party claim in the Main Action based on res judicata and abuse of process. She also ordered that her decision be applied to the Companion Action, such that Fasco’s defence to Venmar’s crossclaim for contribution and indemnity was also struck. [8] Fasco now appeals the motion judge’s decision to strike its pleadings. For the reasons that follow, I would allow Fasco’s appeal. II. BACKGROUND (1) The 2007 Fire and Quebec Litigation [9] In 2014 and 2016, the Quebec Superior Court and Quebec Court of Appeal rendered judgments concerning a house fire that occurred in Quebec City on April 11, 2007 (the “Quebec Actions”). The source of the fire was traced to a HRV installed in the home. The homeowners’ insurer, Desjardins, sued both Venmar and Fasco for $86,000. At trial, Fasco focused their defence on a single issue – whether the fire was caused by a failure of the motor it manufactured or whether it was caused by a failure of another component of the HRV that was selected and installed by Venmar. [10] On July 22, 2014, the trial judge found that the fire was caused by a failure of the motor and concluded that Fasco was 100 percent liable for the plaintiff’s damages. [11] Fasco appealed this decision to the Quebec Court of Appeal, on the basis that Venmar should have been found entirely liable due to its failure to obtain adequate protection for the motor and its failure to adequately warn customers. On November 25, 2016, the court dismissed Fasco’s appeal. However, the court found that the trial judge erred because—based on his finding that both Venmar and Fasco failed to rebut the presumption of liability for a safety defect under Quebec law—he should have found them jointly liable before proceeding to apportion liability between them. Notwithstanding this error, the court found no basis to interfere with the trial judge’s conclusion that Fasco was 100 percent liable for the fire. (2) The Motion Judge’s Decision [12] Following the parties’ submissions, the motion judge in this case gave oral reasons. She held that, in light of the judgments in the Quebec Actions, Fasco’s defences to Venmar’s claims for contribution and indemnity in the Ontario Actions should be struck on the basis of cause of action estoppel, issue estoppel and abuse of process. (a) Res Judicata – Cause of Action Estoppel [13] The motion judge applied the test for cause of action estoppel set out recently by this court in The Catalyst Capital Group Inc. v. VimpelCom Ltd. , 2019 ONCA 354, 145 O.R. (3d) 759, leave to appeal refused, [2019] S.C.C.A. No. 284. She stated: There is a specific test that has to be met to establish this type of estoppel and it has four requirements to it as follows: There is a final decision of a court of competent jurisdiction in a prior action. This is conceded by the responding parties and is not at issue here; The second requirement is the parties to the subsequent litigation were parties to, or in privy with the parties to the prior action; The third requirement, the cause of action in the prior action is not separate and distinct and; Fourthly, the basis of the cause of the action and the subsequent action was argued or could have been argued in the prior action, if the parties had exercised reasonable diligence. [Emphasis in original.] [14] No issue is taken with the motion judge’s findings that the first two requirements were satisfied. With respect to the third requirement, the motion judge noted that the term “cause of action” refers to a factual situation which entitles one to a remedy. Accordingly, the pertinent question at this step was whether the facts that formed the basis for the apportionment of liability in the Quebec Actions were substantially the same as those forming the basis for assessing Venmar’s claims for contribution and indemnity in the Ontario Actions. The motion judge answered this question in the affirmative. [15] More specifically, the motion judge found that the factual findings in the Quebec Actions “are almost identical to the observations of the experts and witnesses in the present case” and that the apportionment of liability in the Quebec Actions would thus be the same in the Ontario Actions. She held: In [the Quebec Actions], in determining fault, the court focused on what component of the HRV was responsible for the outbreak of the fire, which party was responsible for the design of the HRV, and the steps taken by Venmar and Fasco to notify each other and end-users of the potential danger. The court finds that these are the same issues an Ontario court would be analyzing in this trial, if it were to make its own determination of fault between Venmar and Fasco. [16] With respect to the fourth requirement, the motion judge found that any arguments in relation to contribution and indemnity between the parties, such as the contractual defence that Fasco sought to raise in the Ontario Actions, could have been raised in the Quebec Actions if Fasco had exercised reasonable diligence. She found that Fasco failed to raise such arguments in the Quebec Actions for tactical reasons. She concluded that “[a]ll aspects related to the respective fault of the parties properly belonged to the matters” in the Quebec Actions and that Fasco could not now raise these arguments in the Ontario Actions. (b) Res Judicata – Issue Estoppel [17] The motion judge held that if she was wrong in her finding that res judicata applied under the doctrine of cause of action estoppel, then issue estoppel applied, and prevented Fasco from re-litigating certain findings of fact and issues of mixed fact and law that already had been determined in the prior proceedings. [18] She relied on the test from the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc , 2001 SCC 44, [2001] 2 S.C.R. 460, which includes three preconditions for the application of issue estoppel. The motion judge stated: The preconditions are: (1) that the same question has been decided; (2) that the judicial decision which is said to create estoppel was final - that has been conceded here and is not an issue and; (3) that the parties to the judicial decision or their privies were the same persons as to the parties to the proceedings in which the estoppel was raised. [19] The motion judge listed a number of issues of fact and mixed fact and law that, in her view, were determined by and fundamental to the decisions of the Quebec courts. 1. That Fasco bears 100% of the fault for the overheating of the HRV’s motor and failure of the motor’s thermal protection; 2. That the learned intermediary r[u]le does not apply to relieve Fasco of liability; 3. It was possible for Fasco to discover the safety defect in the thermal protector at the time that it was manufactured; 4. That Venmar could not have expected that the motor would overheat and catch fire at the end of its life; 5. Fasco did not fully apprise Venmar of the dangers of the motor and lastly; 6. Venmar did not know as much as Fasco about motors and their components . [20] The motion judge held that the issue of the respective fault of Venmar and Fasco was finally decided in the Quebec Actions. She found that “the same questions that will need to be asked in these proceedings have already been asked and answered in [the Quebec Actions]”. [21] Finally, the motion judge held that there was no reason to exercise her discretion to decline to apply issue estoppel. She noted that there was no assertion that the court proceedings in Quebec were unfair, and the fact that issues were decided under Quebec law was irrelevant to the issue of fairness in applying issue estoppel to findings of fact, because the burden of proof for a finding of fact is the same in Quebec and Ontario. (c) Abuse of Process [22] The motion judge then considered the doctrine of abuse of process in the event that she was wrong in her holdings on cause of action estoppel and issue estoppel. The motion judge identified that the doctrine of abuse of process can apply where the requirements of res judicata are not met, but where the litigation would violate “the principle of judicial economy, consistency, finality, and integrity of the administration of justice”. [23] The motion judge held that Fasco was attempting to raise defences to issues that had already been determined in Quebec while relying on almost identical facts. Additionally, she held that Fasco chose not to raise a contractual defence in the earlier proceedings, and this was not a case where the defence was based on new evidence that could not have been discovered with reasonable diligence in the prior proceeding. In her view, Fasco should not be permitted a second chance to defend itself on the same issues. The pleadings were an abuse of process. These reasons, and the motion judge’s observation that the proceedings in the Quebec action were not unfair, also informed her decision not to exercise her residual discretion to decline to apply the doctrine of abuse of process. III. GROUNDS OF APPEAL [24] Fasco advances several grounds of appeal, which can be organized under the following headings: i) Did the motion judge apply the correct test under r. 21.01(3)(d)? ii) Did the motion judge err in striking Fasco’s defences on the basis of cause of action estoppel: a. because the cause of action in the Quebec Actions was separate and distinct from the cause of action in the Ontario Actions; or b. because she erred in finding that the contractual argument Fasco sought to raise in the Ontario Actions properly belonged to the Quebec Actions? iii) Did the motion judge err in striking Fasco’s defences on the basis of issue estoppel? iv) Did the motion judge err in striking Fasco’s defences on the basis of abuse of process? v) Did the motion judge err by not exercising her residual discretion to decline to apply the doctrines of res judicata or issue estoppel? IV. REVIEW OF GENERAL PRINCIPLES [25] I will briefly review several legal principles that were referred to by the parties in their written and oral argument to give context to the issues Fasco raises on this appeal. (1) Rule 21.01(3)(d) [26] Rule 21.01(3)(d) provides: 21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that, (d) the action is frivolous or vexatious or is otherwise an abuse of process of the court [27] When a party moves under r. 21.01(3)(d) to strike pleadings on the basis of res judicata or abuse of process, it bears the onus of satisfying the “plain and obvious” test. This test is more commonly applied under r. 21.01(1)(b) to strike out claims that disclose no reasonable cause of action, following the Supreme Court’s decision in Hunt v. T&N plc , [1990] 2 S.C.R. 959. However, this court has affirmed that the same test also applies under r. 21.01(3)(d). In Simone Estate v. Cheifetz (2005), 201 O.A.C. 120 (C.A.), at paras. 24-25, this court noted that on a r. 21 motion to strike pleadings on the basis of issue estoppel and abuse of process, the moving party “bears a heavy onus and must establish that it is ‘plain, obvious and beyond doubt’ that the plea could not succeed”. In Waterloo (City) v. Wolfraim , 2007 ONCA 732, 287 D.L.R. (4th) 65, at para. 3, this court re-iterated that “[a] court should invoke its authority to stay an action for abuse of process only in the clearest of cases”. Similarly, in Salasel v. Cuthbertson , 2015 ONCA 115, 124 O.R. (3d) 401, at para. 8, this court held that “[a] court only invokes its authority under rule 21.01(3)(d) … in the clearest of cases” (emphasis added). [1] [28] Extrinsic evidence is permitted on a motion under r. 21.01(3)(d), and a motion judge may make factual determinations, including with respect to whether the facts in an underlying action were already litigated in earlier proceedings: Aba-Alkhail v. University of Ottawa , 2013 ONCA 633, 311 O.A.C. 89, at paras. 13-14, leave to appeal refused, [2013] S.C.C.A. No. 491. The rule requires a motion judge to take “a hard look at the factual background, and especially the position and conduct of the parties”: Salasel , at para. 9. [29] To summarize, Venmar had the onus of proving that it was plain and obvious that Fasco’s defences to Venmar’s claim for contribution and indemnity could not succeed, due to the application of res judicata or abuse of process. (2) Res Judicata [30] The law recognizes a number of doctrines to prevent the abuse of the decision-making process. One of the doctrines is res judicata . In Danyluk , Binnie J. described the doctrine, at para. 18, as follows: The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry…. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. [31] Res judicata has two main branches: cause of action estoppel and issue estoppel. Cause of action estoppel prohibits a litigant from bringing an action against another party when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction. Cause of action estoppel also prevents a party from re-litigating a claim that could have been raised in an earlier proceeding. [32] Issue estoppel is narrower. It applies to prohibit the re-litigation of an issue that has already been decided in an earlier proceeding, even where the cause of action is different in the two proceedings. [33] The overall goal of the doctrine of res judicata , and therefore of both cause of action estoppel and issue estoppel, is judicial finality: Minott v. O’Shanter Development Co . (1999), 42 O.R. (3d) 321 (C.A.), at paras. 16-17; Hoque v. Montreal Trust Co. of Canada , 1997 NSCA 153, 162 N.S.R. (2d) 321, leave to appeal refused, [1997] S.C.C.A. No. 656. (3) Abuse of Process [34] The re-litigation of issues that have been before the courts in a previous proceeding may create an abuse of process. That is because re-litigation carries serious detrimental effects and should be avoided unless the circumstances dictate that re-litigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole: Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 52. [35] The law seeks to avoid re-litigation primarily for two reasons: first, to prevent overlap and wasting judicial resources; and second, to avoid the risk of inconsistent findings: C.U.P.E. , at para. 51; Donald J. Lange, The Doctrine of Res Judicata in Canada , 4th ed. (Markham: LexisNexis Canada Inc., 2015), at pp. 217-18. (4) Residual Discretion [36] A court may decline to apply res judicata or abuse of process where its application would work an injustice. This might occur where the first proceeding denied a party a full and fair hearing, even though that party exercis ed reasonable diligence. Additionally, even if the first proceeding was conducted with scrupulous fairness, it might still be unfair to use the results of the first proceeding to preclude re-litigation of an issue. [37] It may be appropriate to exercise discretion to decline to apply the abuse of process doctrine when (1) the first proceeding is tainted by fraud or dishonesty, (2) fresh, new evidence, previously unavailable, conclusively impeaches the original results, or (3) fairness dictates that the original result should not be binding in the new context: Catalyst , at para. 68. The list of relevant factors to this discretion is not closed. The discretionary factors for whether to decline to apply the abuse of process doctrine may also apply in the context of deciding whether to apply the doctrine of res judicata . (5) Standard of Review [38] This court owes deference to the motion judge’s application of the tests for issue estoppel, cause of action estoppel, and abuse of process and should intervene only if the motion judge misdirected herself, came to a decision that is so clearly wrong as to be an injustice, or gave no or insufficient weight to relevant considerations: Catalyst , at para. 24. V. DISCUSSION (i) Did the motion judge apply the correct test under r. 21.01(3)(d)? [39] Fasco’s first submission is that the motion judge did not apply the correct test; rather she applied an unprecedented approach to the r. 21.01(3)(d) motion. Instead of determining whether it was plain and obvious that Fasco’s pleadings in response to Venmar’s claims were barred by res judicata or as an abuse of process, the motion judge effectively treated the motion as one for summary judgment. Fasco submits that she made “significant inferential leaps on a paper record”, including making findings of fact that the circumstances of the Quebec fire were the same as the Ontario fire. These findings of fact could have only been made after a trial. [40] Venmar argues that the trial judge did not err in deciding the motion on a paper record and that she properly considered the extrinsic evidence in the form of affidavits filed by both parties as permitted by r. 21.01(3)(d). The motion judge quite properly determined that the defences raised by Fasco had previously been litigated and decided by a court of competent jurisdiction based on the unchallenged evidentiary record before her. [41] I agree with the appellants that the motion judge did not identify or apply the correct test for striking a pleading pursuant to r. 21.01(3)(d). [42] As will be evident from my discussion of the other grounds of appeal, it is clear that the motion judge did not apply this test. Put differently, as I discuss below, this was not “the clearest of cases” as required by the governing case law. (ii) Did the motion judge err by applying cause of action estoppel? [43] Fasco submits that the motion judge erred in her analysis of the third and fourth requirements of the test for cause of action estoppel. With respect to the third requirement, Fasco argues that because the Quebec Actions and Ontario Actions involve two different fires, six years apart, it was not plain and obvious that the cause of action for contribution and indemnity in the two proceedings is the same. It argues that the motion judge misconceived what it means for two causes of action to be separate and distinct because cause of action estoppel operates only where two cases arise out of the same factual foundation. The two fires were separate events. [44] Venmar argues that cause of action estoppel can be applied to two separate fires which arise from the very same conduct and the motion judge was entitled to examine the evidence to find that the two fires involved an identical cause of action. The motion judge considered evidence of the design of the HRV, the design of the motor, the manufacturing relationship between the parties, Venmar’s knowledge of the danger, and the failure of the motor and found that the relevant fact situation in the Quebec Actions was identical in the Ontario Actions. [45] While I acknowledge that there was evidence before the motion judge that the HRV and the motor in both fires bore similarities, I respectfully disagree with the motion judge’s decision to strike Fasco’s defences to Venmar’s claims on the basis of cause of action estoppel. Venmar’s claims against Fasco for contribution and indemnity will require an assessment of Venmar’s and Fasco’s comparative fault. It is not plain and obvious that the facts that would form the basis for the apportionment of liability between Venmar and Fasco in the Ontario Actions are substantially the same as they were in the Quebec Actions. [46] For example, Venmar may be found liable to the Dosens or their insurer in the Ontario Actions on a basis that was not considered and that could not have been fully considered in the Quebec Actions. In the Main Action, the Dosens’ pleadings allege that Venmar was aware of defects in the HRVs since early 2007 and failed to take “any proactive measures to mitigate risk of fire in the intervening period”. Similarly, the insurer’s pleadings in the Companion Action allege that Venmar “failed to properly warn consumers … that the HRV and/or Motor, or components thereof, was prone to fail”. These arguments were not considered in the Quebec Actions. An Ontario court presented with these arguments would have to consider evidence of Venmar’s knowledge of the risk and efforts to mitigate risk, including during a period of time subsequent to the Quebec Actions that could not have been considered by the Quebec courts. Its determination could impact Venmar’s and Fasco’s relative fault. [47] In addition, it bears noting that the earlier fire occurred shortly after Venmar commenced a Canada-wide Safety Upgrade Program to warn customers of the issue with the HRV and to offer an after-market fix. While it may not have been reasonable to expect, in 2007, that this program would reach the homeowner in Quebec, by 2013, Venmar had known about the issue for over six years. Ultimately, this will be a matter for trial. However, this indicates that it was not plain and obvious that the factual basis for assessing Venmar’s potential liability for failing to warn its customers was the same in 2007 and in 2013. Since Venmar’s potential liability in this regard forms part of the basis for assessing its claims for contribution and indemnity in the Ontario Actions, I conclude that it was not plain and obvious that the cause of action in the Quebec Actions and Ontario Actions is the same. [48] In oral submissions, Fasco advanced a further argument, concerning the nature of a claim for contribution and indemnity, to explain why the third requirement of cause of action estoppel was not satisfied. According to Fasco, this court’s decision in Placzek v. Green , 2009 ONCA 83, 245 O.A.C. 220, established that the basis for a claim of contribution and indemnity is the failure of a concurrent tortfeasor to pay its share of the injured party’s damages, before the contribution and indemnity claimant is found liable to the injured party. Drawing on this decision, Fasco claims that the basis for Venmar’s claims of contribution and indemnity does not simply lie in Fasco’s alleged wrongdoing, related to, for example, its design of the motor. Rather, it argues that Venmar’s claims for contribution and indemnity depend on Fasco’s failure to pay for its share of the damages related to the fire in Ontario before Venmar is found liable in relation to this fire. [49] Of course, Fasco’s failure to pay its share of damages related to a fire that broke out in 2013 could not have been the basis for a claim for contribution and indemnity against Fasco at the time of the Quebec Actions. Therefore, Fasco says, a claim for contribution and indemnity for damages arising in 2007 is necessarily separate and distinct from a claim for contribution and indemnity based on events arising in 2013—and this means the causes of actions in the two sets of proceedings cannot be the same. [50] Without commenting upon the ultimate strength of this submission, I find that it is at least arguable, and reinforces my conclusion that it was not plain and obvious that the cause of action in the Quebec Actions is the same as in the Ontario Actions. [51] The motion judge’s error with respect to the third requirement of cause of action estoppel is sufficient to dispose of this appeal since, as explained below, the same error carried over into her analysis of issue estoppel and abuse of process. Nevertheless, I will also consider Fasco’s argument that the motion judge erred with respect to the fourth requirement of cause of action estoppel, when she held that Fasco’s contractual indemnity defence should have been argued in the Quebec Actions. The motion judge’s ruling effectively precludes Fasco from raising the terms of any contract that allocates risk between it and Venmar. [52] I conclude that the motion judge erred in her analysis of the fourth requirement of cause of action estoppel. It was not plain and obvious that Fasco should have advanced an argument based on contractual indemnity in the Quebec Actions. [53] An unchallenged affidavit from Fasco’s appeal counsel in the Quebec Actions was before the motion judge. It made three significant points. [54] First, whether there was a contract between Fasco and Venmar that governed allocation of fault was not argued in the Quebec Actions. [2] Second, given the modest amount of the claim in the Quebec Actions, Fasco chose to focus its defence on a narrow issue of causation. Raising contractual issues would not have been proportional to the claim (which was for an amount of $86,000, with a $13,000 deductible). Third, the decision not to raise contractual issues was based in part on the law governing manufacturer liability in Quebec. In connection with this latter point, I note that a court requires expert evidence to decide issues involving the content of foreign law: Das v. George Weston Limited , 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 69. There was no expert evidence on the content of Quebec law before the motion judge, only the unchallenged affidavit that stated that Fasco’s decision to focus its defence on a single issue was informed by the nature of Quebec law. The motion judge did not consider the absence of expert evidence on Quebec law in reaching the conclusion that Fasco would simply have to live with the tactical decisions it made in the Quebec Actions. [55] Leaving aside the fact that a much larger sum of money is at stake in the Ontario Actions, the issue of contribution and indemnity, and the effect of any contract, is now squarely before the Ontario court. Venmar has brought the issue of the contract with Fasco into focus, since its third-party claim alleges that it may be entitled to indemnity from Fasco on account of breach of contract. It is not plain and obvious that Fasco should be precluded from now raising its contractual argument. [56] I would give effect to this ground of appeal. The motion judge erred in striking Fasco’s defences based on cause of action estoppel. (iii) Did the motion judge err in striking Fasco’s defences on the basis of issue estoppel? [57] The motion judge held that if she was wrong in her conclusion that cause of action estoppel applied, then issue estoppel should be invoked to strike Fasco’s pleadings. Fasco argues that the motion judge erred with respect to the first precondition for issue estoppel, concerning whether the same question (or issue) raised in the Ontario Actions has been decided in the Quebec Actions. [58] Since the relief Venmar sought on its r. 21.01(3)(d) motion was to strike the entirety of Fasco’s defences to Venmar’s claims for contribution and indemnity, the real issue for the motion judge, in considering the first precondition, was whether it was plain and obvious that the question of the parties’ relative fault that was determined in the Quebec Actions was the same as the question at issue between Venmar and Fasco in the Ontario Actions. [59] The “same question” test was described by Goudge J.A. in Heynen v. Frito Lay Canada Ltd. (1999), 45 O.R. (3d) 776 (C.A.), at para. 20, as follows: Although at a high level of generalization, two proceedings might seem to address the same question, this requirement of issue estoppel is met only if on careful analysis of the relevant facts and applicable law the answer to the specific question in the earlier proceeding can be said to determine the issue in the subsequent proceeding. [60] In light of my conclusion regarding the cause of action estoppel issue, it was not plain and obvious that Venmar satisfied the same question test. Again, it is at least arguable that the factual foundation for Venmar’s claims of contribution and indemnity was altered in the years following the fire at issue in the Quebec Actions. Accordingly, I would also give effect to this ground of appeal. [61] As noted above, the motion judge appeared to generally consider which aspects of the Quebec litigation would raise an issue estoppel. It was not necessary for the motion judge to take this approach. She found that Fasco was precluded from re-litigating specific facts—for example, that Venmar did not know as much as Fasco about motors and their components. However, this was not at issue on the motion to determine if Fasco’s pleadings should be struck in their entirety . The result of the motion judge’s findings could have only been to strike the portion of Fasco’s defences that sought to put that fact back in issue in the Ontario litigation. [62] The motion judge erred in striking Fasco’s pleadings in their entirety on the basis of issue estoppel. I note that this does not foreclose an argument that issue estoppel may apply to certain factual determinations made in the Quebec Actions. However, since the question of whether or not issue estoppel applied to any specific factual determination made in the Quebec Actions, was not at issue in the motion, it should be deferred until the trial of the Ontario Actions. The judge hearing the matter will be in a better position to define the factual issues in respect of which issue estoppel may apply. (iv) Did the motion judge err in striking Fasco’s defences on the basis of abuse of process? [63] The motion judge found that the doctrine of abuse of process also applied to bar Fasco’s defences. I agree with Fasco that the motion judge’s findings of abuse are tethered to her finding that cause of action estoppel barred Fasco’s pleadings. The core of the motion judge’s reasons on abuse of process was that “Fasco is attempting to raise defences which have already been determined in [the Quebec Actions] on the basis of almost identical facts”. [64] Accordingly, for the reasons noted above in relation to cause of action estoppel, it was not plain and obvious that Fasco’s pleadings were abusive. I would give effect to this ground of appeal. (v) Did the motion judge err in declining to exercise her residual discretion to refuse to strike Fasco’s pleadings? [65] Finally, Fasco argues that the motion judge should have exercised her residual discretion to decline to apply res judicata and abuse of process. [66] Venmar responds that this residual discretion is rarely exercised in the court-to-court context and that the motion judge specifically found that the Quebec proceedings were fair. Since there was no unfairness in the Quebec proceedings, the motion judge correctly refused to exercise her residual discretion and allowed Venmar’s motion. [67] Since I have concluded that the motion judge erred by applying res judicata and abuse of process to strike Fasco’s pleadings, it is not necessary to consider if the motion judge also erred by refusing to exercise her discretion to not apply these doctrines. That said, I agree with Venmar’s submission that if the preconditions for applying these doctrines were satisfied, the motion judge’s residual discretion would have been “very limited” since the first proceeding giving rise to the estoppel was a court proceeding: Danyluk , at para. 62. It seems to me that Fasco faced an uphill climb in advancing the argument that the motion judge should exercise her discretion to refuse to strike its pleadings. [68] Furthermore, though it is not necessary to address this ground of appeal, I wish to offer some remarks concerning the timeliness of Venmar’s r. 21.01(3)(d) motion, since it was addressed by the parties in oral argument, and is relevant to the issue of the motion judge’s residual discretion. [69] Rule 21.02 provides that “A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs”. The motion judge did not reference this rule but stated that while she did not condone the lateness of Venmar’s motion, the fact it was brought late did not detract from its merits. [70] Without determining that the motion judge erred in the exercise of her discretion, I note that, in the circumstances, the timing of Venmar’s motion should have pulled her towards exercising her discretion to not hear Venmar’s motion in the first place, or to exercise her residual discretion to not grant the relief that Venmar sought. Venmar’s motion was contemplated in the summer of 2019, but was not brought until October 4, 2019, and it was heard just three weeks before trial. [71] Case law is clear that delay in bringing a motion under r. 21.01, including r. 21.01(3)(d), can be a sufficient ground to dismiss the motion. In Fleet Street Financial Corp. v. Levinson , [2003] O.T.C. 94 (S.C.), Rouleau J. (as he then was), stated, at para. 16: The obligation to act promptly is clear and the failure to bring a rule 21.01 motion promptly can, in the appropriate circumstances, be the basis for the judge exercising his discretion pursuant to rule 21.01 not to grant the relief sought. [72] What constitutes “appropriate circumstances” to dismiss a r. 21.01 motion for delay partly depends on what effect the motion will have on trial efficiency. [73] For example, in Hill v. Hamilton-Wentworth Regional Police Services Board (2003), 64 O.R. (3d) 28 (S.C.), leave to appeal refused, [2003] O.J. No. 1820 (Div. Ct.), a motion under r. 21.01(3)(d) was brought “years after the litigation commenced, all examinations for discovery have been completed, and a fixed trial date has been set”: at para. 45. There was no justification for the delay. The motion judge also noted that the issues to be dealt with on the motion would also arise with respect to some of the moving parties’ other claims at trial. Accordingly, dealing with the issues before the trial would “risk compromising the record at this late stage in the proceedings” and “not enhance trial efficiency”: at para. 48. On that basis, the motion was dismissed for delay. [74] Similarly, in this case, the benefits of hearing and resolving Venmar’s r. 21.01(3)(d) motion, in terms of judicial economy or trial efficiency, were marginal. It appears that much of the same evidence and similar issues will nonetheless be considered at trial. For example, even if Fasco’s defences were properly struck because the issue of Fasco and Venmar’s relative fault was finally determined in the Quebec Actions, a judge in the Ontario Actions would nonetheless have to hear issues concerning Venmar’s potential liability for failure to warn or negligence in assembly or testing of the HRV, in relation to the Dosens and their insurer’s claims. The motion judge should have considered this fact and looked at the litigation as a whole. In my opinion, it should have weighed heavily in the analysis as to whether the discretion to dismiss the motion or to refuse to apply the doctrines should been exercised. VI. CONCLUSION [75] In conclusion, the motion judge erred by not applying the plain and obvious test to determine whether the cause of action in the Quebec Actions was separate and distinct from the cause of action in the Ontario Actions, whether Fasco should have raised any contractual defences in the Quebec Actions, whether the principle of issue estoppel applied to strike Fasco’s pleadings in their entirety, and whether Fasco’s pleadings were an abuse of process. [76] For these reasons, I would allow the appeal. I would award Fasco its costs of the appeal in the agreed amount of $35,000, inclusive of disbursements and applicable taxes. Released: March 5, 2021 “S.E.P.” “S. Coroza J.A.” “I agree. S.E. Pepall J.A.” “I agree. M.L. Benotto J.A.” [1] Other provincial appellate courts have held that the plain and obvious test applies on a motion to strike pleadings on the basis of cause of action estoppel, issue estoppel or abuse of process : World Wide Treasure Adventures Inc. v. Trivia Games Inc. (1996), 17 B.C.L.R. (3d) 187 (C.A.), at para. 39; Mohl v. University of British Columbia , 2006 BCCA 70, 52 B.C.L.R. (4th) 89, at paras. 41-42; and Hozaima v. Perry , 2010 MBCA 21, 251 Man. R. (2d) 148, at para. 44. [2] During oral argument before this court, Fasco’s counsel confirmed that neither party raised contribution and indemnity in the Quebec Actions.

COURT OF APPEAL FOR ONTARIO CITATION: Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund v. Barrick Gold Corporation, 2021 ONCA 104 DATE:  20210219 DOCKET: C67681 Hoy, Brown and Thorburn JJ.A. BETWEEN The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund and Royce Lee Plaintiffs (Appellants) and Barrick Gold Corporation, Aaron W. Regent, Jamie C. Sokalsky, Ammar Al-Joundi and Peter Kinver Defendants (Respondents) Joel P. Rochon, Peter R. Jervis and Golnaz Nayerahmadi, for the appellants Kent E. Thomson, Luis Sarabia and Steven G. Frankel, for the respondents Heard: November 9 and 10, 2020 by video conference, with further written submissions filed on November 23, 2020. On appeal from the order of Justice Edward P. Belobaba of the Superior Court of Justice, dated October 9, 2019, with reasons reported at 2019 ONSC 4160, 148 O.R. (3d) 755. Hoy J.A.: I.        OVERVIEW [1] This appeal arises out of secondary market misrepresentations allegedly made by Barrick Gold Corporation during the construction of Pascua-Lama, a multi-billion-dollar gold mining project in the high Andes of Chile and Argentina. [2] The appellants – the proposed representative plaintiffs in a putative securities class action – appeal the order of the motion judge, granting them leave to proceed under s. 138.3 of the Ontario Securities Act , R.S.O. 1990, c. S.5 (“OSA”) with one proposed misrepresentation claim against Barrick and the individual respondents, but denying them leave to proceed with all other claims they proposed to assert under Part XXIII.1 of the OSA. [3] Under s. 138.3(1) of the OSA, a person or company who acquires or disposes of securities during the period between the time when a document containing a misrepresentation is released and the time when the misrepresentation is publicly corrected has a right of action for damages against the responsible issuer, each director of the responsible issuer at the time the document was released, and each officer of the responsible issuer who authorized, permitted or acquiesced in the release of the document, among others. However, pursuant to s. 138.8(1) of the OSA, an action may not be commenced without leave of the court, which must be satisfied that the action is being brought in good faith and that there is a reasonable possibility that the action will be resolved at trial in favour of the plaintiff. [4] The motion judge denied leave to proceed with most of the alleged misrepresentations because, even if they were misrepresentations, they were not publicly corrected. [5] The primary issues on appeal are whether the motion judge erred in principle (i) by effectively assuming the falsity of most of the alleged misrepresentations and determining whether leave to proceed should be granted by focusing on whether the misrepresentations had been publicly corrected or (ii) by taking an impermissibly narrow approach to determining whether the alleged misrepresentations were publicly corrected. [6] A secondary issue is whether this court should interfere with his conclusion that four alleged environmental misrepresentations by omission were not even arguably misrepresentations. [7] For the following reasons, I would allow the appeal in part and return the issue of whether leave should be granted in respect of the categories of alleged misrepresentations – described below as the capital expense (or, “capex”) and scheduling misrepresentations, and the accounting and financial reporting misrepresentations – to the court below. II.       BACKGROUND [8] In brief, Pascua-Lama, straddling the border of Chile and Argentina at the headwaters of the Estrecho river system, was a complex and environmentally sensitive project. The motion judge described the Estrecho as “a life force for the thousands of people, including indigenous communities, that lived downstream from the mining site.” Barrick began work on the project in October 2009. The estimated cost of the project escalated, and environmental issues arose. In October 2013, Barrick concluded that the project was no longer financially viable and decided to shut it down. Barrick recorded a write-off of around $5 billion. [9] Over the proposed two-year class period, there were five negative disclosures of information that resulted in significant declines in Barrick’s share price. In total, shareholders lost billions of dollars. [10] The list of alleged misrepresentations and public corrections appended to the motion judge’s reasons is similarly appended to these reasons. The alleged misrepresentations were made in annual financial statements, interim financial statements, management’s discussion and analysis, or in an annual information form (“AIF”). Some of the alleged misrepresentations are alleged untrue statements of material fact. Others are alleged misrepresentations by omission; that is, alleged omissions to state a material fact that was required to be stated or that was necessary to make a statement not misleading in the light of the circumstances in which it was made. [1] [11] The subject matter of these alleged misrepresentations, set out in full in the Appendix, essentially falls into three categories. [12] First, misrepresentations by omission relating to when Barrick expected initial gold production to commence at Pascua-Lama and to the estimated capital expense budget for Pascua-Lama. [13] Between October 27, 2011 and October 31, 2013, the date for first gold production moved from mid-2013, to mid-2014, and then to the second half of 2014. In the same period, Barrick increased its estimated capex budget for Pascua-Lama from $5.0 billion to $8.0 billion to $8.5 billion. Barrick argued that each of these changes reflected unanticipated increases in construction costs, including skyrocketing labour and commodity prices in the aftermath of an earthquake, unexpected currency fluctuations, government-imposed tariffs, and falling gold and silver prices. [14] The appellants allege that Barrick knew that its scheduling and capex estimates were unreliable and misleading. The appellants argue that each of the statements Barrick issued about its scheduled date for initial gold production and its estimated capex budget omitted to state a material fact that was either required to be stated or that was necessary to make a statement not misleading in the light of the circumstances in which it was made. [15] Second, the appellants allege that Barrick made a series of misrepresentations relating to environmental compliance at the Pascua-Lama project. [16] The motion judge granted the appellants leave to proceed with what he described as their core environmental claim, namely that on July 26, 2012 the respondents misrepresented that Barrick had completed the comprehensive water management system, required by the Resolución de Calificación Ambiental 024/2006 (“the RCA”), the primary Chilean environmental permit, and was therefore able to commence the mining activity described as “pre-stripping”. The appellants allege that this was an untrue statement of a material fact. The motion judge’s grant of leave to proceed with this core environmental claim is not at issue on this appeal. [17] What is at issue are four alleged misrepresentations by omission with respect to environmental compliance set out in the Appendix and discussed later in these reasons. The motion judge denied leave in respect of those alleged misrepresentations on the basis that there was no reasonable possibility of success. [18] Third, the appellants allege that Barrick made misrepresentations by omission relating to accounting and financial reporting. Essentially, the appellants claim that Barrick’s internal controls were ineffective, it should have written the project down more than a year before it did, and that it failed to record contingent liabilities. [19] The materials on the leave motion were voluminous. The total body of evidence exceeds 50,000 pages of materials. The motion was argued over seven days. III.      THE MOTION JUDGE’S REASONS ON PUBLIC CORRECTIONS [20] Section 138.3(1) of the OSA provides that: Where a responsible issuer or a person or company with actual, implied or apparent authority to act on behalf of a responsible issuer releases a document that contains a misrepresentation, a person or company who acquires or disposes of the issuer’s security during the period between the time when the document was released and the time when the misrepresentation contained in the document was publicly corrected has, without regard to whether the person or company relied on the misrepresentation, a right of action for damages against [the issuer and various related parties]. [Emphasis added.] [21] The motion judge explained that the public correction serves as a time-post for the purposes of the proposed class period and any eventual damages calculation. He indicated that it is also a constituent element of the secondary market misrepresentation cause of action: In the absence of a discrete and identifiable public correction (whether provided by the defendant company or a third party) there is no basis for a s. 138.3 misrepresentation action – the absence of a public correction is “dispositive” and there is no need to proceed further and consider whether leave should be granted under s. 138.8. [Citations omitted.] [22] The interpretation of ‘public correction’ under s. 138.3(1) has not received significant consideration at this court. However, a body of jurisprudence has developed in the courts below. The trial judge cited his prior decisions, and the decisions of other class action judges in the Toronto region, at para. 17 of his reasons. [2] He summarized the criteria for a proper public correction as follows: (i) There must be some linkage or connection between the alleged misrepresentation and the alleged public correction; (ii) The public correction must share the same subject matter and, in some way, relate back to the misrepresentation; and, (iii) The public correction must be reasonably capable of revealing to the market the existence of an untrue statement of material fact or an omission to state a material fact. [23] Expanding on the third criterion, he wrote: If the alleged correction, on a fair reading , does not arguably reveal to the market the existence of the alleged misrepresentation – that is, the existence of the allegedly untrue assertion or the alleged omission in the impugned representation – then there is no public correction and no basis for the proposed s. 138.3 action. For example, if the plaintiff alleges that Capex disclosure X was misleading because of omission Y, the alleged public correction Z must reasonably be capable of revealing the existence of Y. If all the plaintiff can do is point to X and allege even an arguable Y but cannot identify a Z that reveals the existence of Y, then there is no public correction. [Emphasis added.] [24] He stated that this makes sense in terms of public policy. If the assertion or the omission in the disclosure was never corrected, then the reason for the drop in the stock price will have to be found elsewhere. In his view, a meaningful public correction requirement provides an additional safeguard against unfair and unmeritorious misrepresentation claims. [25] The motion judge addressed each of the three categories of alleged misrepresentations in turn. The alleged capex and scheduling misrepresentations [26] The motion judge concluded that he did not need to examine any of the extensive documentary and affidavit evidence, including expert reports filed by the appellants, explaining and supporting the alleged omissions, and by Barrick, explaining that the disclosures were timely and accurate. The motion judge stated that he could assume Barrick had made a misrepresentation, and focus his analysis on whether that assumed misrepresentation was publicly corrected: I do not have to examine any of this evidence or even explain its meaning or context. Even if the evidence filed by the plaintiff provides some support for the proposition that one or more of the alleged omissions were needed to make one or more of the alleged misrepresentations not misleading, any further analysis of this proposition is not required. I can decide the Capex and scheduling representations by focusing on the proposed public corrections and asking whether the requirements for a public correction have been satisfied. [27] He concluded that the requirements for a public correction had not been satisfied: There is nothing in any of these alleged corrections that suggests that the earlier estimate was inaccurate or unreliable. There is nothing in any of these alleged corrections that reveals the existence of an alleged omission…. there is nothing in any of the four “partial corrections” that provides a linkage or connection to any of the alleged omissions. And there is certainly nothing that is reasonably capable of revealing the existence of any of the alleged omissions. [28] He stated that, on the facts before him, the determination of what constitutes a proper public correction was not a matter that could be “improved” by further or better evidence at trial. The alleged environmental misrepresentations at issue on this appeal [29] As indicated above, the motion judge denied leave to proceed with four claims arising from the alleged environmental misrepresentations by omission on the basis that that the appellants had no reasonable possibility of establishing that they are misrepresentations. I review his reasons for so concluding later in these reasons. [30] However, the motion judge went on to find that, even if wrong in that analysis, claims based on the alleged omissions would also fail for lack of any public correction. He wrote that, as with the alleged capex and scheduling misrepresentations, he did not have to weigh the evidence and assess every allegation of misrepresentation by omission. He could decide the “omission” allegations by assuming Barrick made a misrepresentation and asking whether the requirements for a public correction have been satisfied. [31] He concluded that the requirements for a public correction had not been satisfied: there was nothing in the proposed corrections that could “fairly be said to reveal the existence of any of the 11 alleged environmental omissions.” He observed that there is nothing in the four suggested “partial corrections” that provides a linkage or connection to any of the alleged omissions. There is nothing that reveals the existence of any of the alleged omissions. The alleged accounting and financial reporting misrepresentations [32] The motion judge wrote that there was, “nothing in any of the five supposed corrections about the ineffectiveness of any of [Barrick’s] internal controls; nothing about any failure to take a timely impairment write-down; and nothing about any failure to record a contingent liability”. [33] Again, he wrote, the determination of what constitutes a proper public correction, on the facts before him, was not a matter that could be affected by further or better evidence at trial. He could therefore conclude that there was no reasonable possibility that the plaintiff can show at trial that any of the suggested public corrections was connected to and revealed the existence of the alleged omission. IV.     AN OVERVIEW OF THE ISSUES REGARDING PUBLIC CORRECTIONS RAISED ON APPEAL [34] The appellants make two main arguments. [35] First, they argue that the motion judge erred in principle by determining the public correction issue without first examining all the evidence and determining whether there was a reasonable possibility that Barrick made a misrepresentation. They say that only after ascertaining the nature, subject matter and falsity of the alleged misrepresentation can the court appreciate and analyze the extent to which a pleaded public correction “relates to” and “corrects” the misrepresented facts. They argue that the motion judge’s failure to engage in this process tainted his analysis of whether there was a public correction. [36] Second, while they do not take issue with the three criteria for a public correction summarized by the motion judge, they argue the motion judge erred in principle (i) by applying a narrow, purely textual, analysis of the alleged public corrections and (ii) by failing to consider evidence, including expert economic evidence, about the context in which the alleged public corrections were made and how the alleged public corrections would be understood in the secondary market. [37] In response to the first argument, Barrick advises that it did not suggest to the motion judge that he determine the leave motion based on whether the requirement for a public correction was met. It fully argued the issue of whether there was reasonable possibility that the appellants’ claim that it had made misrepresentations could succeed and candidly admits that it would have preferred that the motion judge decide the issue. However, it submits that that the motion judge was entitled to effectively assume that the alleged misrepresentations had been made out and proceed as he did. [38] As to the appellants’ second argument, Barrick submits that the motion judge, having heard seven days of argument, was fully alive to the context in which the alleged public corrections were made and to the appellants’ expert evidence. For example, at the beginning of his reasons, he referred to the fact that, during the proposed class period, five negative disclosures resulted in significant declines in the share price. This, Barrick says, was in the report of the appellants’ expert, Cynthia Jones. Barrick argues that the motion judge did not refer to the appellants’ experts’ evidence because it was not probative of whether there was a public correction. Rather, the motion judge properly considered the criteria for a proper public correction. [39] Barrick characterizes the appellants as seeking to interfere with a determination of mixed fact and law to which deference is owed. V.      ANALYSIS OF THE ASSUMED MISREPRESENTATIONS ISSUE [40] I reject the appellants’ argument that a motion judge cannot assume that the alleged misrepresentations are made out and deny leave to proceed under s. 138.3 of the OSA on the basis there is no reasonable possibility that a trial court would find there has been a public correction of those misrepresentations. [41] As Barrick argues, in several different contexts and different areas of the law, the court has assumed that one constituent element of a cause of action or legal test has been satisfied and disposed of the case on the basis that a different constituent element has not been established. For example, in the context of a claim in unjust enrichment, courts have assumed that there has been enrichment and determined the case on the issue of whether there is an absence of juristic reason for the enrichment: Bank of Montreal v. i Trade Finance Inc. , 2009 ONCA 615, 96 O.R. (3d) 561 at para. 36, aff’d on other grounds, 2011 SCC 26, [2011] 2 S.C.R. 360. Whether or not a public correction is properly characterized as an element of the statutory cause of action of secondary market misrepresentation, as I discuss below, it is a necessary part of the statutory scheme. [42] I note that the motion judge in this case is not the only motion judge to have accepted that this approach is available. In Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc , 2016 ONSC 5784 (“ SNC-Lavalin ”), at para. 48, Perell J. accepted, albeit in the context of a summary judgment motion, that it is possible to assume the falsity of the alleged misrepresentations for the purpose of determining whether a corrective disclosure or public correction exists. [3] [43] The appellants offer no authority for their position. Contrary to their assertion, Mask v. Silvercorp Metals Inc. , 2015 ONSC 5348, aff’d 2016 ONCA 641 does not stand for the proposition that justices deciding motions for leave to proceed under s. 138.8 of the OSA are required to determine whether the plaintiff has a reasonable possibility of establishing that impugned disclosures were misrepresentations, and only then consider whether the plaintiff also has a reasonable possibility of demonstrating the alleged misrepresentations were publicly corrected. Mask – a decision of the motion judge in this case – simply sets out the pleading requirements applicable to claims brought under s. 138.3(1) of the OSA. [44] The appellants also rely on Theratechnologies Inc. v. 121851 Canada Inc. , 2015 SCC 18, [2015] 2 S.C.R. 106 and Rahimi v. SouthGobi Resources Ltd. , 2017 ONCA 719, 137 O.R. (3d) 241, leave to appeal refused, [2017] S.C.C.A. No. 443. As the appellants note, in Theratechnologies , at para 38, Abella J., for the Supreme Court, wrote that the leave requirement is more than a “speed bump” and that, at the leave stage, the court must undertake “a reasoned consideration of the evidence to ensure that the action has some merit”. This, as Hourigan J.A. wrote for this court in SouthGobi , “must include some weighing of the evidence that both parties are required to proffer under ss. 138.8(2) and (3) [i.e. affidavit evidence setting forth the material facts on which the parties intend to rely] and scrutiny of the entire body of evidence, not just the evidence of the plaintiff viewed in isolation.” Further, given the fact that at the leave stage full production has not been made, the motion judge must be cognizant of the fact that the defendant may have relevant evidence that has not been produced or tendered: SouthGobi , at para. 48. [45] Through this reasoned consideration of the evidence, a motion judge discharges the competing duties of protecting issuers from unmeritorious claims and frivolous strike suits and ensuring that the secondary market remedy is not rendered illusory through the elimination of potentially meritorious claims: SouthGobi , at para. 45. However, in my view, read in context, Theratechnolgies and SouthGobi do not prevent a motion judge from taking a plaintiff’s case at its highest by assuming the falsity of the impugned misrepresentation, and denying leave to advance that misrepresentation claim on the basis that there is no reasonable possibility that a trial court would find that there has been a public correction of the misrepresentation. In a proper case, a motion judge could discharge the “competing duties” in this manner. [46] But it is an approach that should be used rarely. The existence of a misrepresentation is at the heart of the statutory cause of action. When an issuer’s disclosures are impugned, both the issuer and the shareholders have an interest in a finding that restores confidence in the issuer’s ongoing disclosure. Assuming a misrepresentation – that is, assuming a wrong – and then finding a second wrong – a failure to correct the misrepresentation – would generally do little to restore market confidence.  As I discuss below, it is also an approach that should be used with great caution. VI.     ANALYSIS OF THE APPROACH TO DETERMINING WHETHER THERE WAS A PUBLIC CORRECTION [47] This leads to the appellants’ second argument on the corrections issue. [48] As I will explain, assuming the falsity of the alleged misrepresentation does not relieve a motion judge of the obligation to engage in a reasoned consideration of evidence of the context in which the alleged public correction was made and how the alleged public correction would be understood in the secondary market if the alleged public correction does not, on its face, reveal the existence of the alleged misrepresentation. In some cases, that may require the motion judge to consider evidence which also goes to the issue of whether there is a reasonable possibility that a trial court will find that there was a misrepresentation. Thus, caution is required. In some cases, assuming the falsity of the alleged misrepresentations – an approach driven by concerns of judicial economy – may prove a false economy. Judicial economy likely only outweighs the interests of an issuer and its shareholders in a finding as to whether there is a reasonable possibility that the trial court would find a misrepresentation and the risks entailed in assuming a misrepresentation when: the motion judge is faced with an overwhelming record; and the motion judge is confident that there is no material overlap between the evidence relevant to whether there is a misrepresentation, and the evidence of the context in which the alleged public correction was made and how the alleged public correction would be understood in the secondary market. [49] Moreover, where the motion judge must engage in an analysis of the evidence of context, it cannot be said (as the motion judge did in this case) that there is no possibility that the matter could be “improved” by further and better evidence at trial. [50] In SNC-Lavalin , Perell J. correctly rejected a purely semantic and mechanical approach to the determination of a public correction (referred to, here, as a corrective disclosure). He reasoned, at para. 45: [T]he determination of whether a corrective disclosure is corrective depends not only on a semantic analysis of what the public correction means but also on an analysis of how the words would be understood in an efficient market and also a statistical analysis of the effect of those words on the market’s evaluation of the value of the securities that had been misrepresented to the marketplace. Put somewhat differently, a semantic analysis of whether a corrective disclosure was made is necessary, but it is not sufficient to determine the existence or non-existence of a corrective disclosure. What is required is an analysis of the literal meaning of the words, which is in any event not a purely mechanical exercise but one that involves, evidence, opinion, and argument, and also an analysis of the perceived or effective meaning of the words in the secondary market, which once again is not a mechanical exercise, but rather one that involves evidence. [51] Perell J. wrote this in reasons concluding that whether there had been a public correction could not be determined on a summary judgment. But the principle – that, where the alleged public correction does not, on its face, clearly reveal the existence of the alleged misrepresentation, the judge must engage in a reasoned consideration of evidence of the context in which the alleged public corrections were made and how the alleged public corrections would be understood in the secondary market – applies equally on a leave motion. [52] In a similar vein, in Kauf v. Colt Resources Inc. , 2019 ONSC 2179, 145 O.R. (3d) 100, at para. 121, Glustein J. wrote of the need for a “robust analysis of the evidence”: If there is a reasonable possibility based on a robust analysis of the evidence that a trial court could find that the purported public correction could serve as “time-post” for damages, leave ought to be granted. [53] I turn to the determinative question: Did the motion judge in this case err in principle by determining that there was no reasonable possibility that the trial court would find that there has been a public correction of the misrepresentation based on a purely textual analysis, without the requisite reasoned consideration of the evidence? [54] In my respectful view, the answer to that question is “yes”. His reasons disclose that his analysis of the proposed public corrections was a purely textual one, limited to a “fair reading” of the proposed correction. As Perell J. wrote in SNC-Lavalin , this is a necessary step. But the analysis cannot end there. [55] By way of example, the appellants allege that Barrick’s representation that total construction capital for Pascua-Lama was estimated at $4.7-$5 billion, made in the third-quarter interim financial statement dated October 27, 2011, is a misrepresentation because, among other things, Barrick did not disclose that it had material information indicating that this estimate was neither reasonable nor accurate. They allege that Barrick’s disclosure of a 50-60 percent increase in capital costs from this estimate, contained in its interim financial statements for the second quarter of 2012, dated July 26, 2012, constitutes a public correction. [56] In his analysis, the motion judge effectively assumed that, as the appellants allege, Barrick had material information on October 27, 2011 indicating that its estimate was neither reasonable nor accurate. As stated above, the motion judge found that there was nothing in this (or any other) alleged public correction relating to capex that suggests that the earlier estimate was inaccurate or unreliable and reveals the existence of the omission. He did not consider whether, in the context in which the July 26, 2012 statement was made, there was a reasonable possibility that the trial court would find that the market would consider a budget increase of that magnitude, at that time, as casting doubt on the reasonableness or accuracy of the earlier budget. Nor did he consider the evidence of the appellants’ economic expert, Cynthia Jones, that the alleged corrective disclosures “clearly informed the market that prior misstatements should no longer be relied upon”. [57] Barrick argues that no weight should be given to what it says is a bald assertion by Ms. Jones. It may be right. But that is an issue that remains to be determined, possibly only at trial. [58] This court cannot engage in the necessary “reasoned consideration of the evidence”: Theratechnologies , at para. 38. It is not clear that the 50,000 pages of evidence before the motion judge are before this court. Moreover, it is not the role of this court to engage in such a review. Regrettably, the question of whether leave should be granted in respect of those alleged misrepresentations must be remitted to the court below. [59] I will add this. The motion judge’s narrow approach to determining whether a public correction was made out may have been driven by his view that the public correction is an “additional safeguard against unfair and unmeritorious misrepresentation claims”. Respectfully, the legislative history of the statutory scheme does not support his view that the public correction serves as an “additional safeguard”. The role of public corrections within the statutory scheme [60] Part XXIII.1 of the OSA was enacted in 2002, following careful consideration by committees of the Toronto Stock Exchange (“TSE”) and the Canadian Securities Administrators (“CSA”). [4] [61] In the mid-1990s, the TSE established the Committee on Corporate Disclosure, chaired by Thomas I.A. Allen, Q.C., to address perceived problems in the quality of continuous disclosure from market participants (“the Allen Committee”). In 1995, the Committee published its interim report (“the Allen Report”). [5] The CSA supported the recommendations made by the Allen Committee in its final report and established its own Civil Remedies Committee (“the CSA Committee”) which, in 1998, adopted in large part – with one notable exception discussed below – the recommendations of the Allen Committee. [6] Both the Allen Committee and the CSA Committee carefully considered the risk of unmeritorious or extortionate ‘strike suits’ in making their recommendations. [62] As this court observed in Kerr v. Danier Leather Inc. , 77 OR (3d) 321, at paras. 119-120, aff’d 2007 SCC 44, the Allen Committee and the CSA Committee’s reports may provide persuasive evidence as to the legislature’s intent in enacting s. 138.3. [63] The function of a public correction within the statutory scheme was not discussed by the Allen Committee in detail. It is referred to, obliquely, in the Allen Committee’s discussion of the persons who ought to have a cause of action for secondary market misrepresentations or non-disclosure: Allen Report, at paras. 6.11-18. In summarizing its position, at para. 6.13, the Committee noted: [W]e recommend that a cause of action for damages resulting from misleading or untimely disclosure be available to any person who acquires or disposes of a security of the issuer in question in a secondary market between the date when the misleading disclosure was made and the date when it was corrected , or in the case of untimely disclosure or non-disclosure, between the date when the disclosure ought to have been made and the date when it was in fact made. [Emphasis added; emphasis in original omitted.] [64] The function of a public correction was also discussed with reference to the scope and calculation of damages: Allen Report, at paras. 6.58, 6.63, fn. 12. [65] I draw several observations from these limited comments, taken in the context of the entire Allen Report. [66] First and foremost, the Committee appears to have viewed a public correction simply as part of the statutory scheme – a necessary time-post for the proposed class period and any eventual damages calculation. The public correction delimits who may bring a claim for secondary market misrepresentation and makes damage calculations for secondary market claims standardized and predictable. [7] [67] Second, throughout, the Committee appears to have assumed the misrepresentation would be corrected or that the necessary disclosure would be made. If the Committee intended to limit the proposed statute’s applicability only to those misrepresentations later explicitly corrected, it is surprising that it did not so indicate in its otherwise extensively canvassed report. [68] Third, the Committee did not list a ‘public corrections requirement’ among the safeguards against “open[ing] the floodgates to U.S. type securities litigation”: Allen Report, at para. 6.72; see also paras. 4.18-4.20. The Committee considered sufficient the significant differences in class action procedures, the limitations on liability recommended (including the limited class of plaintiff, several liability, and monetary limits on liability); and other differences between US and Canadian legal culture and courts (including the comparative rarity of civil jury trials and the “loser pays” rule). [69] In addition to the safeguards against unmeritorious litigation considered or proposed by the Allen Committee, the CSA Committee proposed requirements for leave to proceed and court approval of settlements. The regime subsequently enacted by Ontario as Part XXIII.1 of the OSA – and other Canadian provinces’ securities acts – closely followed the CSA’s proposal. [70] Not treating the public correction as an additional safeguard against unfair and unmeritorious misrepresentation claims makes sense. [71] First, recall that, at the leave stage, a consideration of whether there has been a public correction of a misrepresentation follows a finding that there is a reasonable possibility that it will be found at trial that the defendant has released a document or made a public oral statement containing a misrepresentation (or, in rare cases, the making of an assumption that there was a misrepresentation). When that threshold has been cleared (or the misrepresentation assumed), the plaintiff’s claim is potentially meritorious. Where there is a reasonable possibility of a misrepresentation, the plaintiff’s claim can hardly be characterized as a strike suit. Furthermore, the clearing of the misrepresentation threshold, combined with the fact that the plaintiff brought an action, suggests that there was a public correction. The plaintiff must have learned of the misrepresentation somewhere. [8] [72] Second, the supposed public policy rationale identified at para. 21 of the motion judge’s reasons – that, in the absence of a strict public correction requirement, the cause of any decline in the market value of the security may be properly attributed to factors other than the correction of the alleged misrepresentation – is anticipated and addressed elsewhere in Part XXIII.1. Section 138.5(3) provides that “assessed damages shall not include any amount that the defendant proves is attributable to a change in the market price of securities that is unrelated to the misrepresentation or the failure to make timely disclosure.” The motion judge properly averted to the role of s. 138.5(3) in his discussion of the core environmental misrepresentation claim for which he granted leave. Public correction of a misrepresentation by omission [73] Finally, the fact the alleged misrepresentations are misrepresentations by omission does not change the need for reasoned consideration of the evidence in the context of a motion for leave. [74] In expanding on the third of the criteria for a proper public correction, articulated at para. 19 of his reasons, the motion judge stated that the alleged public correction, on a fair reading, must arguably reveal to the market the alleged omission of the material fact that was necessary to make the statement at issue not misleading in light of the circumstances in which it was made. [75] In my view, this sets the bar too high. [76] The public correction need not specifically identify the omitted material fact or specifically relate the information in the correction to the omitted material fact. As stated earlier, if the alleged public correction does not, on its face, reveal the existence of the alleged misrepresentation, the motion judge must engage in a reasoned consideration of evidence concerning the context in which the alleged public corrections were made and how the alleged public corrections would be understood in the secondary market. The critical question for the motion judge is whether the alleged public correction was reasonably capable of being understood in the secondary market as correcting what was misleading in the impugned statement . [9] [77] What the motion judge outlined as the other criteria for a proper public correction were not at issue on this appeal. Whether they are better described as “characteristics” rather than “criteria”, and their precise wording, are issues for another day. [78] I turn now to the alleged environmental misrepresentations which the motion judge did not permit to proceed. VII.    THE ALLEGED ENVIRONMENTAL MISREPRESENTATIONS WHICH THE MOTION JUDGE DID NOT PERMIT TO PROCEED [79] The motion judge reviewed the evidence with respect to the allegations of environmental misrepresentations. He granted the appellants leave to proceed with their “core environmental claim”. However, as indicated above, the motion judge concluded that leave to proceed with the four alleged environmental misrepresentations by omission should not be granted. [80] The first three alleged environmental misrepresentations suffered from fatal “chronology issues”. In short, he concluded that the material facts that the appellants allege should have been disclosed to make the three representations at issue not misleading arose after the representations were made. Since they arose after the representations were made, Barrick could not have been required to state them at the time it made the representations. [81] The fourth alleged environmental misrepresentation by omission failed because the motion judge found that the material facts that Barrick allegedly omitted to disclose were not “even arguably required” to make the representation at issue not misleading. [82] As I will explain, I would not interfere with the motion judge’s decision to deny the appellants leave to proceed with the four alleged misrepresentations by omission with respect to environmental compliance. [83] In their 50-page factum, the appellants concentrated solely on the motion judge’s approach to determining whether the public correction was made out and made no reference to the motion judge having erred in concluding that their allegations of environmental misrepresentations by omission could not arguably constitute misrepresentations. [84] In its responding factum, Barrick noted that the appellants did not take issue with the motion judge’s conclusion that the alleged environmental misrepresentations by omission could not arguably constitute misrepresentations and concentrated solely on the public corrections issue. However, it argued that the motion judge’s conclusion was amply supported by the evidence and was open to him. [85] In oral submissions, in their outline of the errors they alleged that the motion judge had made, the appellants did not refer to his having erred in concluding that the alleged environmental misrepresentations by omission could arguably constitute misrepresentations. They again focused on the public corrections issue. However, in response to questions from the panel, the appellants indicated that they take issue with the motion judge’s findings with respect to the alleged environmental representations by omission. [86] In their Notice of Appeal, the appellants refer to only two of the four alleged environmental misrepresentations for which the motion judge denied leave: those made November 1, 2012 and March 28, 2013. With respect to those two alleged misrepresentations, the appellants state at para. 10(b) of their Notice of Appeal that the motion judge “failed to properly consider the applicable principles to determine the existence of misrepresentation by omission”. Their other articulated grounds of appeal in relation to those alleged misrepresentations relate to the public correction issue. [87] After the appeal was heard, the court asked the parties for written submissions, limited to five pages on this issue. [88] In their written submissions, the appellants argue that the motion judge erred in concluding that the alleged environmental misrepresentations by omission could not arguably constitute misrepresentations. Barrick submits that it would be unfair to permit the appellants to challenge those findings at this juncture. Among other reasons, Barrick has not had the opportunity to respond to what the appellants now argue are errors. In any event, Barrick argues, the motion judge’s findings are not tainted by reversible legal error or palpable and overriding errors of fact. Some additional context [89] Unlike the portions of his reasons addressing the alleged capex and scheduling misrepresentations and the alleged accounting and financial reporting misrepresentations, in his reasons addressing the alleged environmental compliance misrepresentations the motion judge summarized what he characterized as the key points of evidence relating to those alleged misrepresentations. Some additional background, drawn from that summary, will help understand his reasons for denying leave to proceed with the four alleged environmental misrepresentations by omission and the parties’ arguments. [90] As noted above, Pascua-Lama, located at the headwaters of the Estrecho river system, was environmentally sensitive. In the motion judge’s words, “[i]t was imperative that toxic by-products of the mining process, such as acid rain drainage, did not contaminate that river system.” To this end, Chilean authorities required that Barrick construct a comprehensive water management system (“WMS”) as part of the RCA. [91] Barrick began pre-stripping at Pascua-Lama on May 4, 2012. Although the WMS was not fully constructed, Barrick considered itself entitled to do so as, in its view, the WMS was “operational” within the meaning of that term in the RCA. [92] In September and October 2012, local indigenous groups filed two “constitutional rights” lawsuits in a Chilean court to stop the pre-stripping and other alleged environmental violations. The court refused to grant the requested preliminary injunction. [93] Because of excessive road dust and other related problems, the pre-stripping operation was temporarily halted by government order in October 2012. [94] Among other things, the WMS collected descending mountain water, using a system of horizontal channels and natural ravines, and carried that water around Pascua-Lama’s waste dump and onward to the river system. The RCA required that the WMS be capable of receiving “water flows equivalent to a 1000-year flood.” If the terrain carrying descending mountain water was not carved in rock, the RCA required that terrain to be lined with an appropriate material to prevent erosion and mudslides. [95] Unlike the horizontal channels, one of the ravines – the Q-9 ravine – was not lined in concrete or other material. Several months following the pause of pre-stripping operations, in December 2012 and January 2013, two massive mudslides occurred after large volumes of descending water hit the loose rock, soil and silt present at the outlet work that directed the water into Q-9 and in Q-9 itself. [96] Barrick’s Chilean subsidiary filed a self-report with the primary environmental agency, referred to as the “SMA” in the motion judge’s reasons, admitting that it had breached the RCA by not building the outlet work at the opening of Q-9 according to the RCA’s specifications. The SMA rejected the self-report because it was incomplete and conducted its own investigation. It laid environmental charges against Barrick. In its charging document, released in March 2013, the SMA accused Barrick of 23 environmental violations. In a letter to the SMA in April 2013, Barrick acknowledged and “accepted” 13 of the 14 violations relating to the WMS. The SMA fined Barrick $16 million, which was reduced to $12 million for early payment. [97] The two “constitutional lawsuits” made their way back to the Chilean court soon after the SMA released its charging document. On April 9, 2013, the Chilean court, ex parte , suspended all construction work on the Chilean side of the Pascua-Lama project. [98] In June 2013, Barrick announced that it would try to rebuild the WMS “in compliance with permit conditions” and then resume pre-stripping. However, four months later, in October 2013, it decided to shut the project down. The March 28, 2012 alleged misrepresentations by omission [99] The motion judge explained that two of the four representations at issue, dated March 28, 2012 (contained in Barrick’s 2011 AIF and Annual Report and set out in the Appendix), “contain broad language intended to reassure the interested reader that Barrick takes environmental compliance seriously and that Barrick believes that it is in substantial compliance with all applicable environmental laws and regulations at its mining sites.” [100] He set out the seven material facts that the appellants allege Barrick was required to state to make those two March 28, 2012 representations not misleading: 1. Barrick’s environmental permits required it to complete all elements of its WMS and have it fully operational prior to the commencement of pre-stripping; 2. Contrary to Barrick’s misstatement that its WMS was complete, enabling pre-stripping to commence, Barrick was aware that its WMS was not complete and was not fully operational; 3. Barrick commenced pre-stripping in violation of its RCA permits in May 2012; 4. By committing this act, Barrick was in violation of Article 24 of Law 20,417 enacted on January 28, 2010 that required strict compliance with the RCA; 5. Barrick’s RCA violations would be considered serious under Chilean law, and Barrick knew that under the new strict compliance legal regime, it specifically risked suspension or permit revocation; 6. Barrick knew that a suspension of pre-stripping until the WMS was complete in accordance with the RCA could delay the project by at least an additional year or more beyond the one-year delay in completion until mid-2014 announced on July 26, 2012; and, 7. Barrick had decided to follow a highly risky strategy of commencing pre-stripping in violation of its permit to maintain its schedule and risk the consequent sanctions. [101] He concluded that the alleged omissions are precluded by “obvious chronology problems”: The alleged omissions that pertain to the two March 28, 2012 representations relate to a pre-stripping event that actually took place several weeks later in May 2012. Therefore, there is zero chance that any of these alleged omissions (in a March disclosure about an event that did not occur until May) can even arguably be described as omissions “that should have been disclosed to make the [March] representations not misleading.” [102] I agree with Barrick that there is no basis to interfere with this conclusion. [103] First, to the extent that the appellants’ Notice of Appeal could be argued as having opened the door to the appellants making arguments that the motion judge erred in concluding that some of the alleged environmental misrepresentations by omission did not arguably constitute misrepresentations, the Notice of Appeal makes no reference to these alleged environmental misrepresentations by omission. The appellants at no point sought leave to rely on an error in concluding that the alleged March 28, 2012 misrepresentations did not arguably constitute misrepresentations as a ground of appeal. [104] Second, and in any event, I reject the appellants’ argument that there is no “chronology problem” because, effectively, an issuer is deemed to make the impugned representation anew when related material facts requiring disclosure subsequently arise. This is contrary to s. 1(1) of the OSA, which defines a misrepresentation by omission as “an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made ” (emphasis added). The definition is clear. The “circumstances in which it was made” do not include circumstances which arose after the statement was made. The appellants framed their claim as one based solely on misrepresentation. Their argument confounds liability for failure to make timely disclosure under s. 138.3(4) of the OSA with liability for misrepresentation under ss. 138.3(1) and (2) of the OSA. [105] Finally, while alleged omission 1 – and possibly 2, 5, 6 and 7 – might appear to relate to Barrick’s alleged intention prior to the May 2012 pre-stripping event to act in violation of environmental law by commencing pre-stripping in breach of the RCA, knowing of the risks of doing so, Barrick points to evidence that the decision to begin pre-stripping was not made until the day before pre-stripping began and the appellants do not point to any evidence to the contrary. The November 1, 2012 and March 28, 2013 misrepresentations by omission [106] The motion judge explained that the other two alleged misrepresentations are the disclosures of November 1, 2012 in Barrick’s interim financial statements for the third quarter of 2012 and of March 28, 2013 in Barrick’s 2012 AIF, set out in the Appendix and below. They report on the two “constitutional rights” lawsuits brought in Chile by indigenous communities affected by the Pascua-Lama project: November 1, 2012: “In September and October 2012, two constitutional rights protections actions were filed in Chile by representatives of an indigenous community and certain other individuals, seeking the suspension of the construction of the Chilean portion of the Pascua-Lama project due to alleged non-compliance with the requirements of the Project’s Chilean environmental approval. The Court declined to issue an immediate injunction suspending pre-stripping activities, but both cases have been admitted for review by the Court. We intend to vigorously defend these actions.” March 28, 2013: “In September and October 2012, two constitutional rights protections actions were filed in Chile by representatives of an indigenous community and certain other individuals, seeking the suspension of the construction of the Chilean portion of the Pascua-Lama project due to alleged non-compliance with the requirements of the Project’s Chilean environmental approval. The Court declined to issue an immediate injunction suspending pre-stripping activities. The first action has been admitted for review by the court and the second action has been abandoned for lack of prosecution. We intend to vigorously defend these actions.” [107] The motion judge set out the following four material facts that the appellants say should have been disclosed to make the above representations not misleading: 1. Barrick had commenced pre-stripping in violation of the RCA prior to the completion of the WMS; 2. Barrick admitted to the SMA in its self-report to serious RCA violations related to the WMS; 3. The self-report had been rejected for failing to provide “specific, truthful and demonstrable” information on January 31, 2013 after an SMA investigation uncovered other serious RCA violations beyond those admitted by Barrick; and, 4. Barrick had committed 13 of 14 of the RCA violations alleged by the SMA, which it admitted to on April 29, 2013. [108] With respect to the November 1, 2012 statement, he concluded, again, that there were chronology issues: The alleged omissions that deal with a supposed violation of the RCA, Barrick’s self-report about the WMS, the SMA’s rejection of the self-report, and Barrick’s April 29, 2013 letter of “acceptance” all post-date the November 1, 2012 statement and would not have been known to Barrick at that time. [109] The alleged March 28, 2013 misrepresentation by omission failed for a different reason: The alleged omissions that pre-date the March 28, 2013 AIF such as the self-report and its rejection by the SMA are not omissions that should have been disclosed to make the March 28, 2013 update about the “constitutional rights” litigation not misleading. There was nothing in this latter update that even arguably required information about the self-report or its rejection to make the “constitutional rights” update (that referred only to pre-stripping and not the WMS in any event) not misleading. [110] In their written submissions, the appellants argue that Barrick’s statements on November 1, 2012 and March 28, 2013, in which it claimed that it would “vigorously defend” these actions, could only be interpreted by the market as a denial of the allegations in the constitutional litigation that it had violated the RCA, which Barrick, in fact, knew to be true. In addressing the motion judge’s conclusion with respect to the November 1, 2012 statement, they say that the motion judge misapprehended the substance of the pleaded omissions, which was that in May 2012 Barrick violated the RCA – including by carrying out pre-stripping activities prior to full completion of the WMS, as alleged in the constitutional litigation – and knew it had violated the RCA, not that Barrick admitted to those violations a year later. This misapprehension, they argue, resulted because the motion judge failed to consider their omission claims through the lens of all the relevant evidence. [111] I reject the appellants’ argument that the motion judge failed to consider their allegations of environmental compliance misrepresentation by omission in the context of the relevant evidence. It is apparent from his reasons (including the portion of his reasons granting the appellants leave to proceed with their “core” environmental claim) that he carefully considered the significant body of evidence relevant to the alleged environmental misrepresentations, including Barrick’s belief about the completion of the WMS and the right to start pre-stripping. The appellants point to no evidence that Barrick did not, in fact, intend to “vigorously defend” the constitutional litigation. The impugned statements were made in documents which, elsewhere, cautioned that the outcome of the constitutional litigation was uncertain and that if Barrick were unable to resolve these disputes favourably, it may have a material adverse impact on its financial condition and results of operations. The argument that the appellants now advance about the “real” substance of the alleged omissions is inconsistent with their having plead alleged omissions 2 and 3 with respect to both the November 12, 2012 and March 28, 2013. [112] I am not persuaded that there is any basis for this court to interfere with the motion judge’s conclusions with respect to the November 1, 2012 and March 28, 2013 disclosures. VIII.   DISPOSITION [113] I would allow the appeal in part and return the issue of whether leave should be granted in respect of the categories of alleged misrepresentations described above as the capex and scheduling misrepresentations and the accounting and financial reporting misrepresentations to the court below, to be determined by a judge selected by the administrative judge of the class actions team in Toronto. [114] I would order that if the parties are unable to agree on costs of the appeal and the motion below, the appellants shall make written submissions not exceeding five pages within 14 days of release of these reasons, and the respondent shall make written submissions not exceeding five pages within 10 days after the appellants make their submissions. Released: “AH” FEB 19 2021 “Alexandra Hoy J.A.” “I agree. David Brown J.A.” “I agree. Thorburn J.A.” APPENDIX Plaintiff’s Allegations of Misrepresentation (by Assertion or Omission) [10] Part I: Capex and scheduling misrepresentations (by omission) è The $4.7 to $5.0 billion Capex estimate and schedule October 27, 2011 (Q3 2011) – “Pascua-Lama is... expected to achieve first production in mid-2013... Total mine construction capital is estimated at $4.7-$5.0 billion, with approximately 50% of the capital committed at the end of the third quarter.” (p. 5) February 16, 2012 (Q4 2011) – “At the Pascua-Lama project, approximately 55% of the previously announced pre-production capital of $4.7- $5.0 billion has been committed and first production is expected in mid-2013.” (p. 19) March 28, 2012 (2011 AIF) – “Approximately 55% of the previously announced pre­ production capital of $4.7-$5.0 billion has been committed and first production is expected in mid-2013.” (p. 88) May 2, 2012 (Q1 2012) – “At the Pascua-Lama project, about 70 percent of the previously announced mine construction capital of $4.7-$5.0 billion has been committed. First production is anticipated in mid-2013... [T]he company intends to complete a detailed capital cost and schedule review in the second quarter of 2012.” (p. 14) representing as a matter of present fact in its “Cautionary Statements on Forward-Looking Information” that these estimates were “considered reasonable by management” or “the company” (Q3 2011, p. 112; Q4 2011 and 2011 Annual, pp. 10, 167; 2011 AIF, p. 88; 2012 Annual, pp. 30 and 175). omitting to disclose the following material facts necessary to make the above statements relating to the $4.7 to $5 billion Capex budget and first gold production by mid-2013 not misleading in light of the circumstances in which they were made: Barrick had material information that indicated that the $4.7 to $5 billion budget estimate was neither reasonable nor accurate; The estimate was at best preliminary, subject to further review and would increase materially based on the assessment of known information; Turner & Townsend (T&T) had advised that the June estimate, used as the basis for the $4.7 to $5 billion estimate, had been prepared using an incorrect “straight line” methodology (from the original 2009 estimate) and was not even reliable up to a Class III feasibility level estimate; T&T was unable to determine if the estimate was reasonable due to the lack of critical “benchmark data”; The $650 million contingency in the budget reflected a high level of unreliability in the base estimate; T&T-led risk workshops concluded that the project estimate was high risk and required a very high contingency to reflect that risk; Internal information, which indicated that the Capex budget was unreasonable and unreliable: The estimate was dependent on estimates prepared by the projects EPC contractors and Barrick considered the estimates received from its largest contractor, Fluor-Techint (amounting to 40% of the Capex cost), to be highly unreliable throughout the period until July 26, 2012; The cost escalation related significantly to ongoing problems with Barrick's first ever attempt at total EPC management of the project, which continued to be a very serious problem until the approach was abandoned in July 2012; The estimate was based on a project schedule which called for 18 months of pre-stripping to commence in mid-2011 in order to permit completion of construction and first production by mid-2013, while Barrick knew of the risk of significant schedule delay in the commencing of pre-stripping because of the significant delays in completion of the Water Management System (WMS), which was still not complete by Q2, 2012; Barrick knew of undisclosed internal estimate increases by no later than January 2012 to $6.4 billion (plus contingency) and then $7.5 billion (plus contingency) by Q1 2012 and knew that increasing inflation trends were likely to cause a material increase to the estimate. è The $7.5 to $8.0 billion Capex estimate and schedule July 26, 2012 (Q2 2012) – “Preliminary results [of the review] currently indicate that initial gold production is now expected in mid-2014, with an approximate 50-60 percent increase in capital costs from the top end of the previously announced estimate of $4.7-$5.0 billion.” (pp. 5 and 15). representing as a matter of present fact in its cautionary statements that these estimates were "considered reasonable by management”; omitting to disclose material information necessary to be disclosed to make their representations relating to the Capex budget and expected schedule to first gold, specifically: Barrick was abandoning its failed EPC approach and hiring the international construction engineering consulting firm Fluor (to take over full EPCM management) and the engineering firm Bechtel (to supplement its Chilean Project Team). Barrick did not disclose that the fees for these two firms being hired would likely be more than $400 million that had not been included in the $7.5 to $8 billion budget estimate; Barrick knew that the project costs were likely to materially increase as a result of Fluor's analysis of the budget; and Barrick had commenced pre-stripping in May 2012 in serious violation of the RCA permit, exposing the project to a serious risk of suspension and significant increase to the Capex costs in the event of such suspension. è The $8.0 to $8.5 billion Capex estimate and schedule November 1, 2012 (Q3 2012) – “As disclosed with Barrick's second quarter report, preliminary results of a review indicated an increase in capital costs to $7.5-$8.0 billion and a delay in first production to mid-2014. Since then, the company has been working with Fluor to carry out a more comprehensive top-to-bottom review. This review will be complete by our 2012 year-end results release; however, work to date suggests capital costs will be closer to $8.0 - $8.5 billion with first production in the second half of 2014.” (pp. 5 and 14) March 28, 2013 (2012 Annual) – “During the fourth quarter, the cost estimate and schedule for the project was finalized. Expected total mine construction capital remains unchanged in the range of $8.0 to $8.5 billion and includes a contingency of 15- 20 percent of remaining capital. First gold production continues to be targeted for the second half of 2014. Incentives for both Fluor and Techint, our Engineering, Procurement, and Construction Management (“EPCM”) partners, are based on the competition of the project in line with this estimate and schedule.” (p. 37) representing as a matter of present fact in its cautionary statements that these estimates were "considered reasonable by management”; omitting to disclose known material information that the publicly disclosed Capex estimate and schedule were unreliable and materially understated: Barrick had commenced pre-stripping in May 2012 in serious violation of the RCA permit and exposing the project to a serious risk of suspension, resulting delay and significant increase to the Capex costs in the event of such suspension; Barrick had decided in 2009 through 2012 to utilize EPC rather than “traditional” EPCM construction management in order to save costs, that it had no previous experience or expertise in doing so and that Pascua-Lama was beyond the expertise of its in-house EPC capabilities. Partial Corrections of Capex and Schedule Misrepresentations July 26, 2012 (Q2 2012) – “[D]ue to lower than expected productivity and persistent inflationary and other cost pressures, the company initiated a detailed review of Pascua­Lama's schedule and cost estimate in the second quarter. While the review is not yet complete, preliminary results currently indicate that initial gold production is now expected in mid-2014, with an approximate 50-60 percent increase in capital costs from the top end of the previously announced estimate of $4.7-$5.0 billion. Approximately $3 billion has been spent to date.” (pp. 5 and 15) November 1, 2012 (Q3 2012) – “Pascua-Lama Project Update... [C]apital costs will be closer to $8.0-$8.5 billion with first production in the second half of 2014.” (p. 1) June 28, 2013 (Press Release) – “Impairment Charges ... As a result of recent and continued significant declines in gold and silver prices, and the delay in first gold production, Barrick is conducting impairment testing. Preliminary analysis indicates an after-tax asset impairment charge in the range of approximately $4.5-$5.5 billion in the second quarter for the Pascua-Lama project.” October 31, 2013 (Q3 2013 Press Release and MD&A) – “Barrick has decided to temporarily suspend construction activities at Pascua-Lama, except those required for environmental protection and regulatory compliance.” (pp. 1 and 15) Part II: Environmental Compliance Misrepresentations July 26, 2012 (Q2 2012) – “During the second quarter, the project achieved critical milestones with completion of Phase 1 of the pioneering road and also the water management system in Chile, both of which enabled the commencement of pre­ stripping activities.” (pp. 6 and 16) Omitting to disclose material facts necessary to be stated to make the following statements not untrue: March 28, 2012 (2011 AIF) – “The [Pascua-Lama] project has been designed to manage the handling of ore and rock to reduce the potential volume of acid rock drainage. Such considerations include diversion and containment systems for the collection, storage and treatment of drainage and closure and reclamation plans designed to minimize water infiltration.” (p. 91) “Barrick has a policy of conducting environmental audits of its business activities, on a regular and scheduled basis, in order to evaluate compliance with: applicable laws and regulations; permit and license requirements; company policies and management standards including guidelines and procedures; and adopted codes of practice.” (p. 97) "The Company's operating facilities have been designed to mitigate environmental impacts. The operations have processes, procedures or facilities in place to manage substances that have the potential to be harmful to the environment. In order to prevent and control spills and protect water quality, Barrick utilizes multiple levels of spill containment procedures and routine inspection and monitoring of its facilities." (p. 98) "The Company believes that it is in substantial compliance with all current government controls and regulations at each of its material properties." (p. 105) March 28, 2012 (2011 Annual Report) – “License to Operate ... Our license to operate is a critical asset and contributes directly to the achievement of our strategic objectives and value creation for our shareholders. Risk Factor: In order to main our license to operate, it is essential that we: Protect the environment [and] Comply with all regulatory standards” (p. 51) “In order to mitigate risks associated with our license to operate, Barrick places a strong focus on CSR and safety and environmental performance... Responsible environmental management is central to our success as a leading gold mining company. Environmental Management Systems have been fully implemented at twenty of our mines with full implementation at the remaining six mines to be completed in 2012.” (p. 52) In particular, omitting to disclose the following material facts necessary to be stated to make the above statements not untrue: Barrick's environmental permits required it to complete all elements of its WMS and have it fully operational prior to the commencement of pre­stripping; Contrary to Barrick's misstatement that its WMS was complete, enabling pre-stripping to commence, Barrick was aware that its WMS was not complete and was not fully operational; Barrick commenced pre-stripping in violation of its RCA permits in May 2012; By committing this act, Barrick was in violation of Article 24 of Law 20,417 enacted on January 28, 2010 that required strict compliance with RCA compliance; Barrick's RCA violations would be considered serious under Chilean law, and Barrick knew that under the new strict compliance legal regime, it specifically risked suspension or permit revocation; Barrick knew that a suspension of pre-stripping until the WMS was complete in accordance with the RCA could delay the project by at least an additional year or more beyond the one-year delay in completion until mid- 2014 announced on July 26, 2012; and Barrick decided to follow a highly risky strategy of commencing pre­stripping in violation of its permit in order to maintain its schedule and risk the consequent sanctions. Omitting to disclose the following material facts necessary to be stated in order to make its statements in its Q3 2012 and 2012 AIF relating to the two constitutional rights actions commenced in September and October 2012 not inaccurate or misleading: November 1, 2012 (Q3 2012) – “In September and October 2012, two constitutional rights protection actions were filed in Chile by representatives of an indigenous community and certain other individuals, seeking the suspension of construction of the Chilean portion of the Pascua-Lama project due to alleged non-compliance with the requirements of the Project's Chilean environmental approval. The Court declined to issue an immediate injunction suspending pre­ stripping activities, but both cases have been admitted for review by the Court. We intend to vigorously defend these actions.” (pp. 14 and 15) 2012 Annual Information Form (March 28, 2013) – “In September and October 2012, two constitutional rights protection actions were filed in Chile by representatives of an indigenous community and certain other individuals, seeking the suspension of construction of the Chilean portion of the project due to alleged non-compliance with the requirements of the project's Chilean environmental approval. The court declined to issue an immediate injunction suspending pre­ stripping activities. The first action has been admitted for review by the court and the second action has been abandoned for lack of prosecution. Barrick intends to vigorously defend these actions.” (p. 82) In particular, omitting to disclose the following material facts required to be disclosed to make the above statements not misleading: Barrick had commenced pre-stripping in violation of Pascua Lama's RCA prior to the completion of the WMS; Barrick admitted to the SMA in its Self-Report to serious RCA violations related to the WMS; Barrick's Self-Report had been rejected for failing to provide "specific, truthful, and demonstrable" information on January 31, 2013 after an SMA investigation uncovered other serious RCA violations beyond those admitted to by Barrick; and Barrick had committed 13 of 14 of the RCA violations alleged by the SMA, which it admitted to on April 29, 2013. Partial Correction of Environmental Misrepresentation April 10, 2013 Barrick First Press Release – “Pascua-Lama preliminary injunction in Chile; major construction of works in Argentina unaffected . .. Barrick Gold Corporation (NYSE:ABX) (TSX:ABX) (Barrick or the "company") is aware of media reports indicating that a Chilean court has issued a preliminary injunction pending a full hearing halting construction activities on the Chilean side of the Pascua-Lama project. The company has not yet been formally notified of the court order and will assess the potential implications once it has received official notification. Construction activities in Argentina, where the majority of Pascua-Lama's critical infrastructure is located, including the process plant and tailings storage facility, are not affected.” April 10, 2013 Barrick Second Press Release – “Barrick to suspend construction on Chilean side of Pascua-Lama ... Barrick Gold Corporation (NYSE:ABX) (TSX:ABX) (Barrick or the "company") today announced that the company is suspending construction work on the Chilean side of the Pascua-Lama project while working to address environmental and other regulatory requirements to the satisfaction of Chilean authorities. In the interim, activities deemed necessary for environmental protection will continue as authorized. Construction activities in Argentina, where the majority of Pascua-Lama's critical infrastructure is located, including the process plant and tailings storage facility, are not affected. It is too early to assess the impact, if any, on the overall capital budget and schedule of the project.” (p. 1) April 10, 2013 Dow Jones Newswire – “The complaint against the project launched in 2009 by Canadian mining company Barrick Gold Corp., the world's largest gold producer, cited concerns over possible damage to a river, according to the ruling by the Santiago Appeals Court, which was seen by AFP and issued Tuesday night. The unfinished Pascua Lama gold mine straddles the Chilean-Argentine border. The project has seen stiff resistance from environmental groups and local communities. Barrick had expected production to begin in the first six months of 2014. The order suspends construction of the open-pit mine while the court studies the broader environmental issues. The complaint was filed by the Diaguita Indians, a small community based in northern Chile. It said that the construction work “has generated a situation of imminent environmental danger” for the Estrecho River. June 28, 2013 Barrick Press Release – “Schedule Re-sequencing and Reduction of 2013-2014 Capital Spending ... The company has submitted a plan, subject to review by Chilean regulatory authorities, to construct the project's water management system in compliance with permit conditions for completion by the end of 2014, after which Barrick expects to complete remaining construction works in Chile, including pre­ stripping. Under this scenario, ore from Chile is expected to be available for processing by mid-2016. In line with this timeframe and in light of challenging market conditions and materially lower metal prices, the company intends to re-sequence construction of the process plant and other facilities in Argentina in order to target first production by mid-2016 (compared to the previous schedule of the second half of 2014)." October 31, 2013 (Q3 2013) – “Barrick has decided to temporarily suspend construction activities at Pascua-Lama, except those required for environmental protection and regulatory compliance. This decision will postpone and reduce near term cash outlays and allows the company to proceed with development at the appropriate time under a more effective, phased approach. The decision to re-start will depend on improved project economics such as go-forward costs, the outlook for metal prices, and reduced uncertainty associated with legal and other regulatory requirements.” (pp. 1 and 15) Part III: Accounting Misrepresentations Plaintiff alleges that in all disclosures during the class period, Barrick misrepresented that its financial reporting complied with applicable accounting standards and fairly and accurately represented the financial situation of the company. The annual financial reports released during the class period contained the following statements: “Management's Responsibility for Financial Statements ... The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards and reflect Management's best estimates and judgments based on currently available information. The company has developed and maintains a system for internal controls in order to ensure, on a reasonable cost-effective basis, the reliability of its financial information.” (p. 81) Barrick and its CEO and CFO certified in each financial report that the company's ICFR and DC&P were “effective” Barrick omitted to disclose material facts necessary to be disclosed to make these statements not misleading. Specifically, Barrick omitted to disclose: That its ICFR and DC&P were ineffective with respect to the Pascua-Lama project; That it had failed to take necessary and timely impairment writedowns no later than Q2 2012 on the carrying value of its Pascua-Lama asset in its financial statements; That it failed to record contingent liabilities relating to the risk of serious regulatory sanctions against Pascua-Lama which could include lengthy suspension, permit revocation and closure and the associated cost implications from Q2 2012 through to Q2 2013. Partial Correction of Accounting Misrepresentations July 26, (2012 Q2 2012) – “While the review was not yet complete, preliminary results currently indicate that initial gold production is now expected in mid-2014, with an approximate 50-60 percent increase in capital costs from the top end of the previously announced estimate of $4.7-$5.0 billion.” (pp. 5 and 15); April 10, 2013 (Press Releases and Dow Jones Newswire) – [See above in the Environmental misrepresentations section.] June 28, 2013 (Press Release) – [See above in the Capex misrepresentations section.] [1] See the definition of “misrepresentation” in s. 1(1) of the OSA. [2] See Mask v. Silvercorp Metals Inc. , 2015 ONSC 5348; Swiss Canto v. Blackberry , 2015 ONSC 6434; DALI Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc. , 2016 ONSC 5784; Cappelli v. Nobilis Health Corp. , 2019 ONSC 2266 ; and Kauf v. Colt Resources Inc. , 2019 ONSC 2179 . [3] A public correction has sometimes been referred to as a “corrective disclosure.” Corrective disclosure is a term imported from the United States, not found in the OSA. As the motion judge remarked in Swisscanto , at para. 59, “[t]here is no harm in [referring to a public correction as a ‘corrective disclosure’], provided that both court and counsel understand that ‘corrective disclosure’ as used in American case law carries additional (causation) baggage and for this reason this American usage should be handled with care.” [4] At the time, the CSA was composed of members of the securities commissions of Alberta, British Columbia, Ontario, and Quebec, all Canadian provinces and territories. [5] See Committee on Corporate Disclosure, Towards Improved Disclosure: A Search for Balance in Corporate Disclosure , interim report (Toronto: Toronto Stock Exchange, 1995). [6] The CSA Committee was comprised of staff from the securities commissions of Alberta, British Columbia, Ontario, Quebec, and Saskatchewan. [7] As enacted, the price following the public correction is integral to the statutory damages formula for secondary market misrepresentation in all situations except where there is no published market for the shares: OSA, s. 138.5. This is in contrast to damages in cases for prospectus misrepresentation or damages for insider trading, where there is either no formula or alternative modes of calculation outside a statutory formula are contemplated: see OSA, ss. 130 and 134(6). [8] See Adil Abdulla, “Correcting Corrections: Resolving Confusion over the Public Corrections Requirement in the Ontario Securities Act ” (2019) 62:3 Can. Bus. L.J. 310, at p. 315, n. 16. [9] In his reasons, the motion judge suggested that a “partial correction” of a misrepresentation cannot constitute a public correction for the purposes of the statutory scheme. That issue was not argued on appeal and I should not be taken as endorsing his view. It remains an issue for another day. [10] This appendix reproduces the appendix to the motion judge’s reasons. The motion judge’s appendix was based on the plaintiff’s “Revised Schedule C” as amended August 15, 2019.

COURT OF APPEAL FOR ONTARIO CITATION: Ducharme v. Hudson, 2021 ONCA 151 DATE: 20210308 DOCKET: M52261 (C69120) Harvison Young J.A. (Motion Judge) BETWEEN Christopher Ducharme Appellant (Appellant/Moving Party) and Dr. Craig Hudson Respondent (Respondent/Responding Party) Christopher Ducharme, acting in person Antonietta F. Raviele, appearing as amicus curiae Julia L. Lefebvre and James P. Thomson, for the responding party Heard and released orally: March 2, 2021 by video conference REASONS FOR DECISION A. Overview [1] Mr. Ducharme, the moving party and appellant on appeal, is a patient at Waypoint Centre for Mental Health Care, which is a high-security forensic hospital in Penetanguishene. He is detained as a result of being found not criminally responsible on account of mental disorder in relation to criminal charges approximately five years ago. He has been diagnosed with “unspecified schizophrenia spectrum and other psychotic disorder”. Dr. Hudson, the responding party and respondent on appeal, is responsible for his care. [2] The Consent and Capacity Board (the “Board”) upheld Dr. Hudson’s finding that Mr. Ducharme lacks capacity to consent to treatment. Mr. Ducharme filed a notice of appeal with the Superior Court on the same day that the Board made its decision, July 24, 2020. Mr. Ducharme has not taken steps to advance the appeal since then. Nonetheless, because Mr. Ducharme is appealing the Board’s decision confirming Dr. Hudson’s finding that Mr. Ducharme lacks capacity to consent to treatment, s. 18 of the Health Care Consent Act, 1996 , S.O. 1996, c. 2, Sched. A suspends the commencement of treatment until the appeal has been determined. [3] In the meantime, Dr. Hudson proposes to treat Mr. Ducharme with antipsychotic medication to be administered by injection that would last approximately three months. Mr. Ducharme strongly opposes such treatment on grounds that will be discussed below. As provided for in s. 19(1) of the Act, Dr. Hudson moved before the Superior Court for an order to authorize this treatment pending the appeal of the Board’s decision. The motion judge granted the order, giving reasons that are reported at Ducharme v. Hudson , 2021 ONSC 1286. During the hearing before the motion judge, Mr. Ducharme indicated that he intended to appeal the order. Accordingly, the motion judge suspended the coming into effect of his order to permit Mr. Ducharme to seek a stay at this court pending appeal of the motion judge’s order. The suspension expired on March 1, 2021. [4] Mr. Ducharme’s motion for a stay of the motion judge’s order authorizing treatment was heard on March 2, 2021 before me. Later that day, I advised the parties at about 4:00 p.m. that the stay motion was dismissed with brief reasons to follow. These are those reasons. [5] The factual context, along with Mr. Ducharme’s submissions before the motion judge, is fully set out in the motion judge’s reasons and need not be repeated here. The narrow issue before me is whether a stay pending appeal of the motion judge’s order should be granted. B. Procedure under the Act [6] The Act provides the statutory context for Mr. Ducharme’s present motion for a stay. Mr. Ducharme’s appeal of the Board’s decision, which confirms Dr. Hudson’s finding that Mr. Ducharme lacks capacity to consent to treatment, engages the application of s. 18 through s. 18(1). Thus, s. 18(3), particularly s. 18(3)(d)(ii), applies in Mr. Ducharme’s case to suspend the commencement of Dr. Hudson’s proposed treatment of antipsychotic medication until the appeal of the Board’s decision has been determined : Treatment must not begin 18 (1) This section applies if, (a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment; (b) before the treatment is begun, the health practitioner is informed that the person intends to apply, or has applied, to the Board for a review of the finding; and (c) the application to the Board is not prohibited by subsection 32 (2). Same (3) In the circumstances described in subsections (1) and (2), the health practitioner shall not begin the treatment, and shall take reasonable steps to ensure that the treatment is not begun, (a) until 48 hours have elapsed since the health practitioner was first informed of the intended application to the Board without an application being made; (b) until the application to the Board has been withdrawn; (c) until the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the health practitioner that he or she intends to appeal the Board’s decision; or (d) if a party to the application before the Board has informed the health practitioner that he or she intends to appeal the Board’s decision, (i) until the period for commencing the appeal has elapsed without an appeal being commenced, or (ii) until the appeal of the Board’s decision has been finally disposed of. [7] However, s. 19 specifically contemplates circumstances where, as here, there is a treatment proposed to be administered before the appeal of the Board’s decision has been determined. As Dr. Hudson was proposing to treat Mr. Ducharme with antipsychotic medication before the final disposition of Mr. Ducharme’s appeal of the Board’s decision before the Superior Court, Dr. Hudson moved before the Superior Court for an order to authorize the treatment pending the appeal of the Board’s decision, pursuant to s. 19: Order authorizing treatment pending appeal 19 (1) If an appeal is taken from a Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is given. [8] Section 19(2) sets out the criteria to be considered and applied by the court in order that such an order authorizing treatment may be granted: Criteria for order (2) The court may make the order if it is satisfied, (a) that, (i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person’s condition will not or is not likely to improve without the treatment, or (ii) the person’s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate; (b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her; (c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and (d) that the person’s condition makes it necessary to administer the treatment before the final disposition of the appeal. [9] The motion judge granted the order authorizing treatment. Because Mr. Ducharme expressed his intention to appeal the order during the hearing, the motion judge suspended the coming into effect of the order to permit Mr. Ducharme to seek a stay. The issue before me at this point is whether Mr. Ducharme has satisfied the criteria for the granting of a stay. C. THE TEST GOVERNING THE GRANTING OF A STAY [10] The principles applicable to a motion to stay an order pursuant to r. 63.02(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 are well known. In RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311, at p. 334, the Supreme Court of Canada articulated a three-part test for obtaining a stay of a judgment pending appeal: (1) whether there is a serious question to be tried (i.e., to be determined on the appeal); (2) whether the moving party would suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours granting the stay. [11] These components of the test are not watertight compartments; the strength of one may compensate for the weakness of another: see Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), at p. 677. As well, they are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay: see BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust , 2011 ONCA 620, 283 O.A.C. 321, at para. 16; Circuit World , at p. 677. The party moving for the stay bears the onus of proving that it should be granted. [12] The factors to be considered by a motion judge “are generally designed to assess the prejudice to the parties if the order sought is granted or refused”: John Sopinka, Mark A. Gelowitz & W. David Rankin, Sopinka and Gelowitz on the Conduct of an Appeal , 4th ed. (Toronto: LexisNexis Canada, 2018), at §2.187. (a) Is there a serious question to be determined on the appeal? [13] Mr. Ducharme has filed a notice of appeal with respect to the motion judge’s order. He made a number of submissions before this court, most of which he also made before the motion judge: · There is no need for forced medication. He advised Dr. Hudson that all Dr. Hudson needs to do is to give him access to a recording studio so that he can prepare a demo tape of his musical and dance talent for the music industry. He says that he has promised Dr. Hudson that he will acknowledge that he suffers from grandiose delusions and agree to treatment if the demo does not make him a hit as soon as it hits the music industry. The merit of this offer, he says, is proven by the fact that Dr. Hudson did not accept the offer, but rather applied for an order that he be forcibly medicated. · It is the medication itself that causes him to be violent, not the other way around. All but one of his violent acts in the past occurred when he was medicated. · He is not ill. Rather, the authorities, including Waypoint, obtain millions of dollars by having him and people like him detained and prevented from telling the world what is really going on there and the extent to which he and others are mistreated. Were he permitted to become a music sensation, he would have a platform to expose this scam along with the mistreatment of patients imposed on himself and people like him. Dr. Hudson would go to jail. · He was shocked by the extent to which his own witnesses at the hearing turned against him and committed perjury. · His appeal is not likely to succeed. (At least he seemed to implicitly acknowledge this. However, it was unclear whether he was referring to the appeal from the motion judge’s order or the pending appeal to the Superior Court of the underlying Board finding that he lacked capacity to make treatment decisions.) [14] Moreover, he strongly objects to the respondent’s position that he has not pointed to any legal reason why treatment should be delayed because “the stuff they are doing here is not legal”. By way of example, he stated that when he had a nervous breakdown, they put him in restraints, and this has led to PTSD. [15] The respondent Dr. Hudson takes the position that there is little merit to the appeal of the motion judge’s order. The motion judge heard viva voce evidence from the parties, including two witnesses called by Mr. Ducharme. [16] The bar for a finding that there is a serious question to be tried is admittedly low: see RJR-Macdonald , at p. 337; Belton v. Spencer , 2020 ONCA 623, 58 C.P.C. (8th) 16, at para. 25. In my view, the chances of a successful appeal of the motion judge’s order are slim, at best. [17] First, the underlying question of his capacity depends on the outcome of the appeal from the Board finding that he lacks capacity. Although Mr. Ducharme filed a notice of appeal on the same day that the Board decision was rendered, he has taken no steps to further or perfect the appeal since. The motion judge is the case management judge on this matter, and as his reasons indicate, an expedited appeal from the Board decision, if under two hours, could be heard in late April. While amicus indicated before me that she is willing to assist Mr. Ducharme with filing a factum and completing the procedural steps necessary for the appeal of the Board’s decision to go forward, it is not clear to me that he will be willing or able to either instruct counsel or accept and cooperate with the assistance provided by amicus . This will dramatically affect the chances of success on the appeal of the Board’s order. In light of this, the chances of success on the appeal of the motion judge’s order authorizing treatment would be very weak. [18] Second, Mr. Ducharme acknowledged during the hearing before me that his main goal is to prevent the administration of the medication which he believes causes rather than alleviates his symptoms. He stated that his quality of life in his cell is not so bad; he has a floor to dance on, has people who do his laundry, and can continue to write letters to the outside world to communicate the abuse that is going on in the institution. He said he would rather spend the rest of his life in that cell than be medicated. This contributes to my concern that his appeal to the Superior Court, if it is heard at all, will be unlikely to succeed. [19] Finally, and importantly, the motion judge scrupulously applied the appropriate test to be considered in granting an order under s. 19(2). He required the respondent to take him specifically through the evidence on each point. He carefully listened to Mr. Ducharme’s submissions, as evidenced by the fact that he set them out in his reasons in significant detail. He related the evidence and the facts that he found to each of the criteria set out in s. 19(2). The evidence filed by the respondent and accepted by the motion judge was extensive and clearly explained in his reasons. This court owes them deference. (b) Would the moving party suffer irreparable harm if the stay is not granted? [20] The irreparable harm stage of the analysis focuses on the harm the moving party may suffer if the stay is not granted: see RJR-MacDonald , at pp. 340-41. A court must ascertain whether a refusal to grant the stay could so adversely affect the moving party’s interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the stay motion: see RJR-MacDonald , at p. 341. “Irreparable”, in this sense, refers to the nature of the harm suffered rather than its magnitude: see RJR-MacDonald , at p. 341. It is harm which either cannot be quantified in monetary terms or which cannot be cured: see RJR-MacDonald , at p. 341. Irreparable harm may occur where the failure to grant a stay would render any subsequent appeal moot: see Sopinka, Gelowitz & Rankin, at §2.192. [21] While Mr. Ducharme did not directly address the irreparable harm test, his submissions make it clear that his position is that the proposed treatment is a very serious violation of his bodily integrity and he would rather spend his life in a cell than be medicated with drugs that make him “dumb” and “poop blood” and stop him from dancing. He explained that his mind did not stabilize until he had been off medication for over a year. This, he says, is evidenced by the fact that he has not hit anyone in the two years he has been off medication, which at 6’2” and 200 lbs, with martial arts training, he could have done had he wanted to. I note in passing that there was nothing in evidence before this court to support Mr. Ducharme’s assertions of the undesirable side effects of the medications. He states that he is as capable as anyone of assessing the risk versus benefit consideration, which is a consideration under s. 19(2)(b). [22] The respondent acknowledges that forced treatment will constitute an intrusion upon Mr. Ducharme’s bodily integrity which would not be undone even if the motion judge’s decision were to be overturned. He submits, however, that Mr. Ducharme will suffer irreparable harm if he does not receive treatment. The evidence, which the motion judge accepted, is that Mr. Ducharme will not improve spontaneously. Until he receives medication, he will remain psychotic and will suffer from delusions that result in threatening behaviour, acting out violently, and other destructive conduct such as smearing feces on his walls. The lack of medication generally increases his risk to the degree that he is kept in seclusion. With treatment, the expectation is that he will be able to obtain greater freedom at Waypoint. [23] There is no denying the reality that, given Mr. Ducharme’s opposition to treatment, along with his size and general state, the intrusion on his bodily integrity necessary to administer the injection will be significant, though, as the motion judge noted, brief. And the evidence overwhelmingly supports the respondent’s position that it will dramatically ameliorate Mr. Ducharme’s psychosis and delusions. As the motion judge noted, this evidence includes at least three occasions when Mr. Ducharme was medicated and saw his health improve. For example, a clinical note observed that when he was transferred to Ontario Shores, and complying with medications, he was pleasant and calm during interactions, generally reported his mood as being “good”, and socialized appropriately with co-peers and engaged well with staff. [24] Nor did the motion judge neglect to consider whether there was a less intrusive way of achieving a better life for Mr. Ducharme. His conclusion that a single injection lasting three months would be minimally intrusive was well supported in his reasons and requires deference from this court. In my view, Mr. Ducharme would not suffer irreparable harm if the stay were not granted. (c) Does the balance of convenience favour granting a stay? [25] The balance of convenience analysis considers which of the parties would suffer greater harm from the granting or refusal of the motion to stay: see RJR-MacDonald , at p. 342. The Supreme Court found it appropriate to consider the public interest and rejected an approach that would exclude consideration of any harm not directly suffered by a party to the motion: see RJR-MacDonald , at p. 344, decided in the context of an interlocutory Charter proceeding. The interests of third parties may also be a relevant consideration at the balance of convenience stage: see e.g., M & M Homes Inc. v. 2088556 Ontario Inc. , 2020 ONCA 134, 51 C.P.C. (8th) 253, at para. 46; Buccilli v. Pillitteri , [2013] O.J. No. 6110, at para. 48. [26] The respondent submitted that this aspect of the test is not useful because the question has little or no applicability in this case. Dr. Hudson has no personal interest in the outcome. [27] I agree with the respondent that Dr. Hudson has no personal interest in the matter and would not be harmed personally by the granting or refusal of the stay. However, in this case, harm to third parties or non-parties is relevant. If the stay were granted, staff at the hospital would continue to be at risk from Mr. Ducharme’s behaviour and his mood, which can be explosive and would require staff to continue to be vigilant at all times. Setting aside the question of whether nurses and staff at Waypoint are really “third parties” in the sense discussed in M & M and Buccilli , it is clear that they would suffer harm if the stay were granted. On the other hand, Mr. Ducharme would suffer harm to his bodily integrity if the stay is not granted and treatment is administered. I have concluded above that such harm to Mr. Ducharme is not irreparable. In this case, third parties including the staff at Waypoint would suffer greater harm than Mr. Ducharme because they are at greater risk of physical harm given his explosive nature when untreated, and the balance of convenience does not favour granting a stay. (d) Is it in the interests of justice to grant a stay? [28] I have concluded that all three components of the RJR-MacDonald test point in the direction of refusing the stay. This conclusion finds further support in the overarching consideration of whether it is in the interests of justice to grant a stay. [29] If the motion judge’s order is stayed, Mr. Ducharme will remain untreated while he pursues his two appeals. As I have indicated, I am not satisfied that these appeals can proceed as quickly or efficiently as possible while Mr. Ducharme is untreated, with the result that he will remain in seclusion, with psychotic delusions, for some considerable time. He would also be untreated in his proceedings before the Ontario Review Board. I am satisfied from the record before me, including Mr. Ducharme’s own submissions, that he will continue to constitute the risk he poses to others until treatment reduces his aggression and threatening behaviour. [30] Mr. Ducharme is an intelligent and articulate man in a tragic situation. When medicated, he has been appropriately social. A clinical note observed that when medicated, he socialized appropriately with co-peers and engaged well with staff. As the motion judge noted, when Mr. Ducharme was medicated in the past, he saw his health improve. With decreases in symptoms, such as violence, he experienced greater liberty in his living conditions and could be released from high-security isolation and perhaps obtain greater privileges in the facility. [31] By contrast, when he has not been medicated, he has at times been violent. As a result, he has lived in a small cell for roughly two years and has only left his cell in restraints. Despite Mr. Ducharme’s assertions to the contrary before me, I am unable to accept his submission that he would prefer to stay in his tiny cell, with a floor to dance on, free to send letters to let the world know of his mistreatment. His current existence is an extremely unhappy one in which he is spending virtually all his time in a very small area, cannot be taken out without restraints, and experiences psychotic delusions that cause him obvious suffering. [32] He clearly has potential that is currently untapped, although I cannot know whether that potential extends to the realm of music and dance. However, he has been a prisoner not only because of the small cell he has lived in for at least two years, but also because of the psychosis from which he suffers. [33] Our law takes the right to bodily integrity very seriously indeed, and I would observe that the entire process set out in ss. 17-19 of the Act reflects that very important principle. But the law recognizes that in certain cases, this right must give way to permit some intrusion upon that bodily integrity in order to allow that person a better quality of life when they are unable to comprehend the need for or benefits of treatment because of their mental illness. As the structure of the legislation reflects, this is something that the law permits in particular circumstances. That is precisely why the criteria in s. 19(2) are so important. [34] The motion judge found, after careful consideration, that Mr. Ducharme’s case met each of the criterion. I am unable to find that the interests of justice warrant granting a stay of the order authorizing treatment which would, as the motion judge noted, have the effect of prolonging his suffering unnecessarily. D. Disposition [35] The motion for a stay pending appeal is dismissed. “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: ElZayat v. Ontario (Ombudsman), 2021 ONCA 336 DATE: 20210520 DOCKET: C68810 Huscroft, Paciocco and Jamal JJ.A. BETWEEN Haytham ElZayat Plaintiff (Appellant) and Ontario Ombudsman Defendant (Respondent) Haytham ElZayat, acting in person Edward O’Dwyer, Alia Rashid and Frank Cesario, for the respondent Heard: May 14, 2021 by video conference On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated August 18, 2020. REASONS FOR DECISION [1] The appellant submits the motion judge erred in granting summary judgment dismissing his action, and that the motion should not have been heard in his absence. [2] We disagree. [3] The motion judge found that the appellant knew of the summary judgment motion and chose not to participate, despite the court making specific provision to allow him to participate by telephone. The motion judge found that the interests of justice required that the motion be heard and that he would not have granted an adjournment if the appellant had requested one. This is a discretionary decision that is entitled to deference. [4] The motion judge found that there was no genuine issue for trial: the respondent was immune from proceedings unless it could be shown that it acted in bad faith and there was no evidence of bad faith before the court. The appellant put forward no evidence on the motion. [5] The motion judge made no legal errors and his decision granting summary judgment is entitled to deference. [6] The appeal is dismissed. The respondent is entitled to costs, fixed in the amount of $4,500, all inclusive. “Grant Huscroft J.A.” “David M. Pacciocco J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Errol Kay (Re), 2021 ONCA 182 DATE: 20210325 DOCKET: C68601 Rouleau, Pepall and Roberts JJ.A. IN THE MATTER OF: Errol Kay AN APPEAL UNDER PART XX.1 OF THE CODE Stephen F. Gehl, for the appellant Samuel Greene, for the respondent, Attorney General of Ontario James P. Thomson, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care Heard: March 17, 2021 by video conference On appeal from the disposition of the Ontario Review Board dated July 10, 2020, with reasons dated August 12, 2020. REASONS FOR DECISION [1] The appellant was found not criminally responsible on a charge of sexual assault on June 9, 2004. He appeals the Ontario Review Board’s July 10, 2020 disposition which ordered his continued detention at Waypoint Centre for Mental Health Care. At the hearing, the parties agreed that the appellant continued to pose a significant threat to public safety and that a detention order was necessary. The only issue was whether the appellant should be transferred to the less secure facility at Southwest Centre for Forensic Mental Health. A majority of the Board considered the transfer to be premature, while a minority would have ordered the transfer. [2] The appellant appeals the Board’s refusal to transfer him from Waypoint to Southwest on two bases. First, he argues that such refusal was premised on an error of law because the Board acknowledged that the appellant’s risk could be managed at a less secure facility but failed to impose the least onerous and least restrictive disposition. [3] We disagree. The majority applied the correct legal standard. In its reasons, the majority specifically referenced the requirement that the disposition be “necessary and appropriate” which is equivalent to the “least onerous and least restrictive” standard referenced in the case law: McAnuff (Re) , 2016 ONCA 280, at para 22. [4] The second ground of appeal is that the decision is unreasonable. Here the appellant says that the opinion of Dr. Hudson, the appellant’s treating psychiatrist, was that, as a result of a change in medication, the appellant no longer required maximum-secure detention at Waypoint and that his risk could be managed at a less secure facility. The appellant argues that the majority of the Board erred in finding that the record supported continued detention at Waypoint. [5] In our view, Dr. Hudson did not clearly express the opinion that the appellant’s risk could be managed at a less secure facility. We agree that portions of Dr. Hudson’s evidence suggest that he did not see the appellant as constituting a significant risk to the public in the context of a medium-secure environment such as Southwest and that, as a result, he supported a transfer to Southwest. However, in other parts of his evidence, Dr. Hudson explained that the appellant was not ready for the transfer and that the appellant’s risk could not be safely managed if he were to be transferred to Southwest. He testified that “we haven’t seen a long enough period of stability for the [appellant] to be managed safely at [Southwest]”. [6] It was up to the Board to assess Dr. Hudson’s evidence and it was open to the Board to interpret his testimony as it did. It is apparent from the majority’s reasons that, when considered as a whole, it viewed Dr. Hudson’s evidence as advocating a cautious approach to the evidence of progress shown by the appellant such that a transfer may well be premature. This was consistent with the recommendation of the majority of the treatment team to the effect that a transfer was premature. [7] We also reject the appellant’s suggestion that, in reaching its decision, the Board relied on the hospital’s willingness to call for an early review if the appellant progressed over the following months. The Board simply referred to and supported the hospital’s willingness to call for an early hearing in appropriate circumstances. It did not rely on that fact in its analysis of the necessary and appropriate disposition in this case. [8] We therefore see no basis to interfere with the Board’s conclusion that the weight of the evidence indicated that a transfer to Southwest was premature and that continued detention at Waypoint was necessary and appropriate until the appellant’s recent gains are consolidated. [9] For these reasons the appeal is dismissed. “Paul Rouleau J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Family and Children’s Services of Lanark, Leeds and Grenville v. Co-operators General Insurance Company, 2021 ONCA 159 DATE: 20210315 DOCKET: C68449 and C68460 Hoy, Brown and Thorburn JJ.A. BETWEEN Family and Children’s Services of Lanark, Leeds and Grenville Applicant (Respondent) and Co-operators General Insurance Company Respondent (Appellant) AND BETWEEN: Laridae Communications Inc. Applicant (Respondent) and Co-operators General Insurance Company Respondent (Appellant) AND BETWEEN: Co-operators General Insurance Company Applicant (Appellant) and Laridae Communications Inc. Respondent (Respondent) Danielle Marks, Kenneth Gerry and Robert Dowhan for the appellant, Co-operators General Insurance Company Timothy Hill and Brian Chung for the respondent, Laridae Communications Inc. David Boghosian for the respondent, Family and Children’s Service of Lanark, Leeds and Grenville Heard: November 13, 2020 by video conference On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated May 8, 2020, with reasons reported at 2020 ONSC 2198. Thorburn J.A.: OVERVIEW [1] In April 2016, someone hacked into a password-protected portal managed by the respondent Family and Children’s Services of Lanark, Leeds and Grenville (“FCS”). The hacker took a confidential report containing details about the case files and investigations of 285 people. A hyperlink to the report was posted on two Facebook pages. [2] Both FCS and Laridae Communications Inc. (“Laridae”) were insured by Co‑operators General Insurance Company (“Co-operators”). [3] FCS and Laridae claim Co-operators has a duty to defend against two claims: (i) a $75 million class action brought against FCS in which the representative plaintiff alleges that the leaked document contained defamatory material, and that FCS was negligent in securing its website; and, (ii) a third-party claim in that proceeding brought by FCS against Laridae for negligence and breach of contract. [4] Co-operators denies having any duty to defend FCS or Laridae, relying on policy exclusion clauses in the policies that exclude claims arising from the distribution or display of data by means of an internet website. [5] FCS, Laridae, and Co-operators brought applications to interpret the policies under Rule 14.05(3)(d) of the Ontario Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [6] In her endorsement, dated May 8, 2020, the application judge found that the Co-operators had a duty to defend both claims. She held that: a) the applicability of the data exclusion clauses was a “novel interpretation issue” and accordingly the duty to defend should only be denied on a full record, not on an application; b) the data exclusion clause does not exclude Co-operators’ duty to defend the class action; c) the data exclusion clause does not exclude Co-operators’ duty to defend the third-party claim against Laridae; and, d) neither FCS nor Laridae has any reporting obligations to Co-operators, in light of the conflict of interest between the two insured and the insurer. [7] In these companion appeals, Co-operators claims these conclusions were wrong. Co-operators argues that the duty-to-defend issue can properly be determined on the application, and that the data exclusion clauses preclude coverage of both the class action against FCS and the third-party claim brought by FCS against Laridae. It also argues that, even if there was duty to defend, Co‑operators would have the right to participate in the insured parties’ defences. [8] For the reasons discussed below, I would allow the appeal. The existence of a duty to defend in this case can be resolved by application. Co-operators has no duty to defend FCS in the class action proceeding, and no duty to defend Laridae in the third-party claim. Even if such a duty did exist, it would not deprive Co-operators of its right to participate in the defence, including receiving reports from counsel. [9] Below, I set out (i) the terms of the contract between FCS and Laridae; (ii) the claims made in the class action against FCS, and by FCS against Laridae in the third-party claim; and (iii) Co-operators’ refusal to defend the claims. I then outline the relevant policy provisions, and summarize the application judge’s decision. Finally, I analyze and provide my conclusions regarding: (i) whether the duty to defend can be denied on the basis of the material before the application judge; (ii) whether Co-operators has a duty to defend; and (iii) whether, if Co‑operators had a duty to defend, it would have the right to participate in the defence. BACKGROUND [10] FCS was a children’s aid society, authorized under the Child and Family Services Act , R.S.O. 1990, c. C.11 at the relevant times. [1] FCS serves several communities in Eastern Ontario. As an authorized children’s aid society, one of FCS’s functions is to investigate allegations of child abuse. (1) The Contract between FCS and Laridae [11] In August 2015, FCS issued a request for proposals for communication services, in which it asked prospective bidders to, among other things, “review and refresh [the FCS website] to ensure it remains functional to meet our communication needs now and going forward as well as to ensure we maintain compliance with applicable legislative requirements.” [12] On October 22, 2015, FCS retained Laridae. [13] Under the October 2015 contract (“the Contract”) Laridae agreed to provide a range of communications and marketing services. Laridae agreed, among other things, to: a) Identify and implement recommendations to enhance the existing communication platforms/infrastructure of FCS; b) Create and implement communication protocols for delivery of internal and external communications including blogs, tweets, videos etc.; c) “Review and refresh the [FCS] website to meet functionality and communication requirements, now and in the future, while maintaining compliance with applicable legislative requirements”; and d) Provide training for FCS staff to enhance internal and external communications capacity. [14] The Contract required Laridae to obtain commercial general liability insurance coverage that would name FCS as an additional insured under its policy. Laridae obtained a policy for the period November 1, 2015 to November 1, 2016. [15] On May 25, 2016, Laridae and FCS entered into a subsequent scope of work agreement to provide enhanced strategic communications services including ongoing support with internal and external strategic communications; public relations; government relations; crisis communications; media management and training; liaison with legal counsel, insurance, associations and other organizations; branding; policy development; and board governance. (2) The Claims at Issue (a) The class action proceeding against FCS and others [16] On July 22, 2016, a proceeding was commenced under Class Proceedings Act , 1992, S. O. 1992, c. 6. against FCS, its executive director, and a number of other defendants, seeking general, specific, and punitive damages of $75 million. [17] In late 2015, FCS prepared a confidential statistical report (“the Report”) for its board of directors. The report was stored electronically in a portal – a page in FCS’s website providing access or links to another site through a cloud website, for members of FCS’s board of directors. The portal was supposed to be secure. The Report was part of a confidential statistical report prepared for FCS board of directors and contained personal information of 285 clients or subjects of FCS investigations. Specifically, the Report documented new FCS cases arising between April and November 2015. [18] M.M. claims that on or about April 18, 2016, a client of FCS discovered the Report posted on two public Facebook pages. M.M. alleged that one or more individuals illegally hacked the portal on FCS’s website, which was insecure; stole the Report; and published the hyperlink to the Report, thereby disclosing personal and highly sensitive information of class members – some of which was untrue. [19] Paragraphs 15 through 19 of the amended statement of claim read as follows: 15. The personal information of 285 clients and subjects of [FCS] investigations was contained in an electronic file forming part of a confidential statistical report (“report”) prepared for [FCS]'s board of directors on new cases arising between April and November of 2015. The report was held electronically in a portal for board members. 16. Information contained in the report concerning some class members was untrue. 17. On or about April 18, 2016 a client of [FCS] discovered that the report was posted on Smith's Falls Swapshop Facebook page and the Facebook page of Families United. 18. The plaintiff pleads that Jane Doe and/or Kelley Denham illegally hacked the portal, which portal [sic] was not secure, and made the report public by posting it on Smith's Falls Swapshop Facebook page and/or other public websites, thereby disclosing personal and highly sensitive information of the plaintiff and class members . 19. As a result, the personal information of the class members has now been made readily available to any unauthorized third party who accessed the information, bought the information, or found the information posted on the internet, resulting in damages as set out below. [Emphasis added.] [20] On December 21, 2017, common issues were certified in relation to three of the ten causes of action set out in the amended statement of claim: negligence; intrusion upon seclusion; and breach of s. 7 of the Canadian Charter of Rights and Freedoms , arising from a third party’s unauthorized access to the portal and subsequent publication of the Report. (b) FCS’s third-party claim against Laridae [21] On May 28, 2018, FCS commenced a third-party claim against Laridae, seeking general and special damages, and contribution and indemnity for liability arising from the class action. FCS alleges that Laridae was negligent in providing advice and professional services and breached its contractual obligations to FCS. [22] FCS claims its website was designed to be secure and password protected, so that FCS could upload documents intended for authorized users. [23] FCS alleges that on or about February 11, 2016, it learned that an unauthorized internet user obtained a number of non-public documents from the secure section of the FCS website. The unauthorized user posted screenshots of the confidential personal documents to a video on YouTube. [24] FCS alleges that Laridae advised FCS that it had “enhanced the security features of the [w]ebsite” and that it had “added two additional security features to the [w]ebsite, which were sufficient to prevent Internet users from obtaining unauthorized access to documents” in the secure section. Notwithstanding the repairs, in April 2016, a second incident took place whereby a hyperlink to the Report was posted on Facebook accounts. [25] FCS advanced both a breach of contract claim and a negligence claim. Particulars of the negligence claim advanced by FCS against Laridae, reproduced from para. 17 of the statement of claim, are as follows: (a) Laridae negligently represented that the Website was secure following the February Incident, when it was not; (b) Laridae failed to take the necessary steps to identify or repair the potential vulnerabilities prior to, or following, the February Incident; (c) Laridae failed to take reasonable or adequate care in all the circumstances in advising FCS on its response to the February Incident; (d) Laridae failed to warn [FCS] of any vulnerabilities in relation to the website or the Secure Section at any time prior to or until the February Incident; and (e) such further particulars as are in the knowledge of Laridae. [26] The breach of contract claims are, in essence, that Laridae failed to take the necessary steps to ensure that unauthorized internet users could not access non-public documents on the FCS website. FCS further alleges that Laridae advised that the website was secure, following the February 2016 breach, when it was not. (3) Co-operators’ Refusal to Defend and the Relief Sought by FCS and Laridae [27] Laridae was insured under the terms of two policies of insurance issued by Co-operators: a commercial general liability policy (“the CGL Policy”) and the Professional Liability Policy. As required by the Contract, Laridae added FCS as an additional insured under the terms of the CGL Policy. [28] Several months after receiving the amended statement of claim, FCS requested that Co-operators defend and indemnify it with respect to the class action. In February 2018, Co-operators denied the FCS request, citing an exclusion in CGL Policy for “data,” and any personal injury arising from the distribution or display of data. [29] Laridae also requested that Co-operators defend and indemnify it with respect to FCS’s third-party claim. In June 2018, Co-operators denied the Laridae request, citing the “Data Exclusion” in the Professional Liability Policy which provided that “[t]here shall be no coverage under this policy in connection with any claim … arising directly or indirectly from the distribution or display of data by means of an Internet Website … designed or intended for electronic communication of ‘data’”. [30] Both FCS and Laridae brought applications to the Superior Court. Laridae sought a declaration that Co-operators had a duty to defend it from FCS’s third-party claim under both policies. FCS sought a declaration that Co-operators was obliged to defend it in the class action under the CGL Policy and that FCS may retain and instruct counsel of its choice to be paid by Co-operators and who would not have to report to Co-operators; and an order requiring Co-operators to reimburse FCS for the costs of defending the proceedings to date. Co-operators also brought an application, seeking a declaration that it did not have a duty to defend or indemnify Laridae or FCS under the CGL Policy, or Laridae under the Professional Liability Policy. THE INSURANCE POLICIES (a) The Commercial General Liability Policy [31] The CGL Policy provides coverage for bodily injury and property damage liability. The relevant provisions of the CGL Policy are set out below. Significant clauses are underlined. [32] The CGL Policy provided for a range of coverage, including personal injury liability under Coverage B: 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as compensatory damages because of “personal injury” to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under SUPPLEMENTARY PAYMENTS – COVERAGES A, B AND D. We will have the right and duty to defend any “action” seeking those compensatory damages but: 2. We may investigate and settle any claim or “action” at our discretion. b. This insurance applies to “personal injury” only if caused by an offence: 1. Committed in the “coverage territory” during the policy period; and, 2. Arising out of the conduct of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you…. [33] Personal injury is defined in the CGL Policy as: [I]njury other than “bodily injury”, arising out of one or more of the following offences: d. Oral or written publication of material that libels or slanders a person or organization or disparages a person’s or organization’s goods, products or services; or e. Oral or written publication of material that violates a person’s right of privacy. [34] The “Common Exclusions” provision in the policy, applicable to the personal injury provisions in Coverage B, provides that: This insurance does not apply to: 4. Data a. Liability for: 1. erasure, disruption, corruption, misappropriations, misinterpretation of “data”; 2. erroneously creating, amending, entering, deleting or using “data”; Including any loss of use there from; b. “Personal injury” arising out of the distribution, or display of “data” by means of an Internet Website, the Internet, an intranet, extranet, or similar device or system designed or intended for electronic communication of “data” . [35] “Data” is defined in the CGL Policy as “representations of information or concepts in any form.” (b) The Professional Liability Policy [36] The Professional Liability Policy provides that: 1. BASIC COVERAGE The “Insurer” will pay on behalf of the “Insured” all sums which the “Insured” shall become legally obligated to pay as compensatory damages resulting from “Claims” first made against the “Insured” during the “Policy Period” by reason of liability for an error, omission, or negligent act in the course of “Professional Services.” 3. DEFENCE AND SETTLEMENT With respect to each Insurance as is afforded by this policy the Insurer shall have the right and duty to defend any suit or arbitration proceeding against the “Insured” seeking compensatory damages payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent and investigate and negotiate the settlement of any “claim” or suit as it deems expedient. [37] The Professional Liability Policy included a data exclusion. The exclusion reads: DATA EXCLUSION There shall be no coverage under this policy in connection with any claim based on, attributable to or arising directly or indirectly from the distribution, or display of “data” by means of an Internet Website, the Internet, an Intranet, Extranet, or similar device or system designed or intended for electronic communication of “data” . For the purposes of this endorsement, “data” means representations of information or concepts, in any form. [38] This wording is the same as the exclusion in the CGL Policy except that it adds the words “directly or indirectly” after the word “arising”. The definition of ‘data’ is the same, except that it adds a comma before “in any form”. THE APPLICATION JUDGE’S DECISION [39] On the application, Co-operators argued it had no duty to defend, because coverage was excluded by the data exclusion clauses. FCS and Laridae argued that the data exclusion clause did not exclude all the claims against them. In the alternative, FCS and Laridae argued that exclusion clauses which have the effect of nullifying the insurance the insurer undertook to provide, will not be enforced. They argued that this was an important issue that should not be determined on a “duty to defend” application. [40] The application judge concluded, at para. 28, that the claims in respect of which FCS and Laridae sought coverage “are broad and comprehensive and not limited to the distribution of the Report on the internet. The Claims do include damages for non-electronic distribution (i.e. physical distribution) of the Report or other private information.” In coming to that conclusion, she relied on para. 19 of the amended statement of claim in the class action, which asserts that “the personal information of the class members can be accessed by any unauthorized third party who accessed the information, bought the information, or found the information posted on the internet…”. [41] However, although all three parties brought applications regarding the interpretation of the insurance policies, the application judge held that whether Co‑operators should be able to rely on the data exclusion clauses to deny a duty to defend was an important issue that should not be determined on an application. At para. 36, she held that: [U]ntil the courts have had an opportunity to adjudicate the complex issues raised by these broadly worded data exclusion clauses, it would be improper for this court, having regard to present jurisprudence to uphold Co-operators’ denial of a duty to defend. [42] After making this remark, she went on to find there was a possibility of coverage: Further, I can not find on these Applications that Co-operators has not discharged its onus of establishing that the substance of the Claims clearly fall within the Data Exclusion Clauses and that there is no possibility of coverage under the Policies. Rather, in addition to the issue of the interpretation of the Data Exclusion Clauses, it is apparent that there are claims and allegations in the Class Proceeding and the Third-Party Claim that would not [be] excluded by the Data Exclusion Clauses. As there is at least some possibility that the Claims are covered under the Policies, I find that Co-operators owes a duty to defend Laridae and FCS. [43] Finally, the application judge held that if there is a conflict of interest due to competing interests as between FCS and Laridae, Co-operators must fund each defence with independent counsel, neither of whom reports to Co-operators. The judgment provides that FCS and Laridae “are each entitled to appoint and instruct counsel, such instruction shall not include resolution or settlement of any part or portion of the litigation without the consent of Co-operators, and is without prejudice to the rights of Co-operators to bring a motion to vary the Order if the conflict of interest is resolved.” ANALYSIS (1) The First Issue: Whether the duty to defend could be addressed by way of application [44] The application judge erred in concluding that it would be improper to deny the duty to defend on the materials before her. [45] FCS, Laridae, and Co-operators all elected to proceed by way of application. Both FCS and Laridae argued that declarations in their favour could be made on their applications, but that a declaration against their interests could not. [46] The application judge remarked, at para. 32, that the “novel interpretive issue” of data exclusion clauses had “not yet been judicially considered” and should be considered on a full record and not by way of application. As noted above, at para. 36, she agreed with FCS and Laridae that it would be “improper” to uphold Co-operators’ denial of the duty to defend “until the courts have had the opportunity to adjudicate the complex issues raised by these broadly worded data exclusion clauses”. She therefore held that Co-operators had a duty to defend as it had not discharged its onus of establishing that the substance of the claims clearly falls within the data exclusion clause. [47] There was no basis for the application judge’s acceptance of this seemingly asymmetrical treatment of FCS and Laridae, on the one hand, and Co-operators, on the other. [48] Rule 14.05(3)(d) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 provides that a proceeding may be brought by application where the relief claimed is the determination of rights that depend on the interpretation of a contract. An application will however be converted to an action where there are material facts in dispute, complex issues requiring expert evidence or the weighing of evidence, or other need for discoveries or further pleadings: see Fort William Band v. Canada (Attorney General) , 76 O.R. (3d) 228 (S.C.), at paras. 5 and 28-31. [49] This application involved the interpretation of the policy provisions and the application of those provisions to the claims as pleaded to see if there is a possibility that some of the claims may be covered by the policy. [50] The agreements, describing the services that Laridae was to provide FCS, were in the record before the application judge, as were the CGL Policy and the Professional Liability Policy. There were no material facts requiring a trial. [51] As discussed below, the policy provisions are clear and unambiguous and the application judge is presumed to know the law – even if the law is, in her view, unclear or unsettled. She could and should have, addressed both (i) the scope and effect of the data exclusion clauses in the policy, and (ii) FCS and Laridae’s argument that giving effect to the exclusion clauses would nullify coverage under the policies. [52] She erred in failing to do so and I will therefore conduct the analysis. (2) The Second Issue: Whether Co-operators owed a duty to defend to FCS and Laridae [53] I begin my analysis of the duty to defend with a discussion of the applicable principles. (a) The principles applicable on a duty-to-defend application The role of the insurance policy and its interpretation [54] The relationship between an insured and an insurer is a contractual one governed primarily by the terms of the insurance policy. [55] The language of the policy is construed in accordance with the usual rules of construction, rather than inferred expectations unapparent on a fair reading of the document. This is particularly so in the case of commercial insurance policies involving sophisticated parties. The insurer must explicitly state the basis on which coverage may be limited: Hanis v. Teaven, 2008 ONCA 678, 92 O.R. (3d) 594, leave to appeal refused, [2008] S.C.C.A. No. 504, at para. 2. [56] Where the language of the insurance policy is ambiguous, the courts rely on general rules of contract construction and should prefer interpretations of the policy that are consistent with the reasonable expectations of the parties. Courts should avoid interpretations that would give rise to an unrealistic result or one that would not have been in the contemplation of the parties at the time the policy was concluded. However, these rules of construction do not operate to create ambiguity where there is none: Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada , 2010 SCC 33, [2010] 2 S.C.R. 245, at para. 23. [57] In interpreting a policy to determine possible coverage, the process is as follows: a) When the policy language is unambiguous, the court should give effect to that language, reading the policy as a whole; b) Where the language of the policy is ambiguous, general rules of contract construction apply and the court should prefer interpretations of the policy that are consistent with the reasonable expectations of the parties. Courts should avoid interpretations that would give rise to a result that is unrealistic; and, c) Only when the rules of contract construction fail to resolve the ambiguity, courts will construe the policy against the insurer who drafted the policy. This means that coverage provisions are interpreted broadly, and exclusion clauses narrowly: Progressive Homes Ltd. , at paras. 22-24; Simpson Wigle Law LLP v. Lawyers’ Professional Indemnity Co. , 2014 ONCA 492, 120 O.R. (3d) 655, at para. 54. The insurer’s duty to defend against claims [58] Whether there is a duty to defend is determined by the allegations pleaded in the underlying lawsuit read together with the terms of coverage provided in the insurance policy. The duty to defend is broader than the duty to indemnify. An insurer has a duty to defend where, on the facts as pleaded, there is a possibility that a claim within the policy may succeed: Nichols v. American Home Assurance Co. , [1990] 1 S.C.R. 801, at p. 810. The court must try to ascertain the substance and true nature of claims pleaded: Tedford v. TD Insurance Meloche Monnex , 2012 ONCA 429, 112 OR (3d) 144, at para. 14; Monenco Ltd. v. Commonwealth Insurance Co. , 2001 SCC 49 , [2001] 2 S.C.R. 699 , at paras. 34-35 . [59] If the pleadings allege facts which, if true, would require the insurer to indemnify the insured for a claim, the insurer is generally obliged to provide a defence, even though the actual facts may differ from the allegations in the statement of claim: Monenco , at para. 28; Alie v. Bertrand & Frère Construction Co. (2002) , 222 D.L.R. (4th) 687 (Ont. C.A.) , at para. 182. [60] The insurer’s defence obligation is not governed by facts outside of the pleaded allegations. Courts have been cautioned against referring to extrinsic evidence that is not explicitly cited by the parties in their pleadings, for fear of making findings binding on the parties that might be contrary to the evidence tendered on the full record at trial: Monenco , at paras. 36-37. [61] Where a loss arises from several causes, some of which fall within coverage and some of which are not covered, there is a duty to defend absent clear exclusory language denying coverage for multiple independent concurrent causes or ‘mixed claims’: Derksen v. 539938 Ontario Ltd. , 2001 SCC 72, [2001] 3 SCR 398, at para. 48. This is because, as noted by Doherty J.A. in Hanis , at para. 23: I see no unfairness to the insurer in holding it responsible for all reasonable costs related to the defence of covered claims if that is what is provided for by the language of the policy. If the insurer has contracted to cover all defence costs relating to a claim, those costs do not increase because they also assist the insured in the defence of an uncovered claim. The insurer's exposure for liability for defence costs is not increased. Similarly, the insured receives nothing more than what it bargained for – payment of all defence costs related to a covered claim. [62] In the event of mixed claims, the insurer has a duty to defend against the entire claim, subject to an entitlement to recover all or an appropriate portion of their costs of the defence from the insured following the ultimate disposition of the underlying actions: St. Paul Fire & Marine Insurance Co. v. Durabla Canada Ltd. (1996), 137 D.L.R. (4th) 126 (Ont. C.A.). (b) Analysis of the application judge’s decision respecting the duty to defend [63] Applying these principles to the claims and the CGL Policy and Professional Liability Policy, for the reasons that follow, I find that Co-operators owes no duty to defend either FCS or Laridae. Is the data exclusion clause ambiguous? [64] The first step in the coverage analysis is to review the policy to determine whether it is ambiguous. [65] The application judge did not engage in an analysis of the policy provisions nor did she state whether the policy provision or the exclusion clause was ambiguous. She cited Tedford for the proposition that “the usual principles governing the construction of insurance contracts apply” to the interpretation of insurance polices, including the contra proferentem rule: see Tedford , at para. 14. However, the contra proferentem rule applies to resolve ambiguities: see Non-Marine Underwriters, Lloyd's London v. Scalera , 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 71. It does not apply where, as in this case, the insurance policy is clear and unambiguous on its face. [66] Laridae is insured under the Professional Liability Policy, which provides coverage for “all sums the Insured shall become legally obligated to pay as compensatory damages resulting from ‘Claims’” by reason of “liability for any error, omission, or negligent act in the course of ‘Professional services’.” [67] Both Laridae and FCS are insured under the CGL Policy, which provides coverage for compensatory damages for “personal injury [other than bodily injury] … caused by an offence” that “arises out of the conduct of [the insured’s] business”. [68] However, both the Professional Liability Policy and the CGL Policy contain exclusion clauses. The CGL Policy clearly excludes claims “arising out of the distribution or display of ‘data’ by means of an Internet Website, the Internet, an intranet, extranet, or similar device or system designed or intended for electronic communication of ‘data’”. The Professional Liability Policy is even clearer, as it excludes any claims that arise “directly or indirectly” from the distribution or display of data. Both policies define ‘data’ as representations of information or concepts in any form. [69] Because these policy provisions are clear and unambiguous, the court need not consider the reasonable expectations of the parties in interpreting the exclusion provision in the policy, nor does the court need to make recourse to extraneous sources: Allstate Insurance Co. of Canada v. Aftab , 2015 ONCA 349, 335 O.A.C. 172, at para. 19. Is there a possibility that some of these claims are covered by the policy? [70] The second step is to apply the policy provisions to the claims to see if there is a possibility that some of the claims may be covered by the policy. This is determined by ascertaining the substance and true nature of the claims pleaded. [71] In characterizing the class action and the third-party claims, the application judge stated, at para. 28, that: The Claims in these Applications are broad and comprehensive and not limited to the distribution of the Report on the internet . The Claims do include damages for non-electronic distribution (i.e. physical distribution) of the report or other private information. Paragraph 19 of the Amended Statement of Claim in the Class Proceeding asserts that “the personal information of the class members can be accessed by any unauthorized third party who accessed the information, bought the information, or found the information posted on the internet...” [Emphasis added.] [72] The application judge did not consider these claims at length in her analysis. [73] As noted above, she held, at para. 36, that, “it is apparent that there are claims and allegations in the Class Proceeding and the Third-Party Claim, that would not be excluded by the Data Exclusion Clauses.” [74] On appeal, FCS and Laridae take the position that the application judge was correct in holding that some claims extend beyond the policy exclusion and, thus, Co-operators has a duty to defend both because (i) the link to the Report is not a display of ‘data’ within the meaning of the exclusion clauses; and (ii) the damages sought are broad enough to include physical, not just electronic, distribution of the personal information. In the alternative, (iii) they renew their argument before the application judge that the data exclusion clauses are unenforceable. (i) Is the link a “display of data” within the meaning of the policy exclusion? [75] In the third-party claim against Laridae, FCS alleges that an “image of a link” to the Report was published on the Facebook page. On appeal, Laridae argues that one cannot click on an image to access the webpage or document directly. Instead, the text from the image must be typed into a separate webpage in order to access the content. Laridae claims that, strictly construed, such an image does not fit within the definition of ‘data’ as “representations of information or concepts in any form”. Rather, the image simply enables the user to obtain the information by taking further steps . [76] The application judge makes no reference to this argument, and it is not clear that this argument was advanced below. In any event, I do not agree. [77] The definition of ‘data’ is clear and unambiguous. Both a hyperlink and an image of a hyperlink constitute “representations of information” within the meaning of the policy exclusions. It is the representation of the source of the electronic file containing personal information. [78] In the class proceeding against FCS, M.M. as the representative plaintiff claims that the wrongdoers: [H]acked the portal, which portal [sic] was not secure, and made the report public by posting it on Smith’s Falls Swapshop Facebook page and/or other public websites, thereby disclosing personal and highly sensitive information of the plaintiff and class members. As a result, the personal information of the class members has now been made readily available to any unauthorized third party who accessed the information, bought the information, or found the information posted on the internet, resulting in damages as set out below. [79] The damages resulted from hacking the portal using the hyperlink to connect one electronic document to another. This is a “system designed or intended for the electronic communication of ‘data’”. As such, the link to the Report is a display of data within the meaning of the policy exclusion. (ii) Is there a possibility some claims are covered by the policy notwithstanding the exclusion clause? [80] FCS and Laridae further submit that the trial judge correctly found that the claims are “not limited to the distribution of the Report on the Internet” and include “damages for non-electronic distribution (i.e. physical distribution) of the report or other private information” and accordingly some of the claims advanced against them are not covered by the exclusion clause. [81] FCS and Laridae argue that there are two concurrent, but discrete, claims advanced against the insured. They say that even if the online display or distribution of personal confidential information is not covered by the policy, Co‑operators owes a duty to defend if the physical display or distribution of the personal confidential information may be covered. [82] I do not agree. As I will explain, while the trial judge adverted to the requirement to ascertain the substance and true nature of the claims pleaded, she erred by failing to do so and as a result concluded that “there are claims and allegations in the Class Proceeding and the Third-Party Claim that would not [be] excluded” by the relevant exclusion clauses. FCS and Laridae rely on Derksen . In that case, adverse weather conditions developed at a construction site, so work was halted earlier than usual. During the cleanup, a sign, a shaft, and a steel baseplate were removed from the site and placed in the truck. The steel baseplate was not secured. The truck was later driven along the highway and the steel baseplate flew off the truck and went through the windshield of a school bus, killing one child and injuring others. [83] The policy in that case excluded coverage for bodily injury or property damage arising out of the ownership, use, or operation of an automobile. However, the Supreme Court held that the insurer had a duty to defend the action because, although the policy excluded coverage for the use or operation of the automobile, the underlying cause of the accident was the failure to clean up the work site by securing the items in the truck before driving the vehicle. [84] The Supreme Court held that this cause was unrelated to the use or operation of the motor vehicle as the defendant could be found liable for negligently loading and storing the steel baseplate on the truck even if there was no negligent use or operation of the motor vehicle. [85] However, in CUMIS General Insurance Co. v. 1319273 Ontario Ltd. , 2008 ONCA 249, 91 O.R. (3d) 147 (“ CUMIS (ONCA) ”), a decision rendered several years later by this court, a policy exclusion for “bodily injury or property damage arising out of the ownership, maintenance, use or operation by or on behalf of the insured of any automobile” was held to exclude all claims for damages arising from an incident in which a motorcyclist was struck by a ladder that fell off a truck, seriously injuring him. The motorcyclist claimed that in cleaning up the work site, one of the defendant’s employees negligently loaded and stored the ladder onto the truck. At paras. 36, Laskin J.A. distinguished Derksen and accepted the application judge’s reasoning that: [T]he “substance and true nature” of the claim is that the Respondent's employee failed to load and properly secure the ladder to the company's vehicle…. The Statement of Claim clearly suggests that the employee intended to clean up the work site by loading the ladder onto the truck and that he did so, but failed to secure the ladder properly to the truck…: CUMIS General Insurance Co. v. 1319273 Ontario Ltd. (2006), 84 O.R. (3d) 113, at paras. 15-16. [86] Laskin J.A. agreed that “the ‘substance and true nature’ of the claim involves the allegations of negligently loading and storing the ladder on the truck,” not a negligent cleanup of a worksite as was alleged in Derksen : Cumis (ONCA) , at para. 36. [87] In the amended statement of claim, M.M. as representative of the class claims: a) “The personal information … was contained in an electronic file … held electronically in a portal”; b) The portal was “illegally hacked”, the personal information was posted on “Smith’s Falls Swapshop Facebook page and/or other public websites”; and, c) It was “made readily available” to an unauthorized person who “accessed, bought or found the information on the internet” resulting in damages to the Class. [88] In this case, contrary to the assertion made by the application judge, there is no claim in the class action that there was a physical display or distribution of the confidential personal information. The claim is that the confidential report was made public, “ by posting it on Smith's Falls Swapshop Facebook page and/or other public websites, thereby disclosing personal and highly sensitive information of the plaintiff and class members” and that, “ [a]s a result , the personal information of the class members has now been made readily available … resulting in damages” (emphasis added). [89] The pleading in the class action is that the damages arose from posting the Report on the internet. This is sufficient to conclude that there is no duty to defend the class action as this allegation fits squarely within the policy exclusion. [90] Moreover, even if the class action did include an allegation that physical copies of Report were taken or created, which it does not, the substance and true nature of the claim for damages arises from the wrongful appropriation of confidential personal information and posting it on the internet. There is only one chain of causation as all injury flows from the display or distribution of physical copies follows from the first wrongful act. [91] This is also true in the case of the third-party claim. In the third-party claim, FCS claims: a) Contribution and indemnity for any damages payable in the class action; b) Damages for negligent advice and representations in the course of providing general consulting services under its agreement with FCS; c) Damages for failing to adequately secure the website; and, d) Damages relating to reputational harm, investigation costs, and repair costs. [92] While I appreciate that Rule 29.01 of the Rules of Civil Procedure allows a defendant to commence a third-party claim against a person who is not a party to the action for “an independent claim for damages or other relief arising out of … a related transaction or occurrence or series of transactions or occurrences”, there is no independent claim for damages in this case. [93] The data exclusion clause excludes claims that arise from the display and distribution of the confidential personal information on the internet. All of the injuries pleaded in the third-party claim arise, ultimately, from the distribution of the Report on the internet. There is only one chain of causation. As in the class action, the substance and true nature of the claim for damages arises from the wrongful appropriation of confidential personal information and posting it on the internet. [94] Accordingly, the data exclusion clause excludes coverage for the defence of both the class action and the third-party claim and, on the facts as pleaded, there is no possibility that a claim within the policy may succeed. (iii) Would denial of coverage result in nullification of coverage under the policy? [95] The third point raised by FCS and Laridae is that, if the data exclusion clause in the policies applies in this case, giving effect to the data exclusion clause would impermissibly nullify coverage under the policy. [96] In Zurich Insurance Co. v. 686234 Ontario Ltd. (2002), 62 O.R. (3d) 447 (Ont. C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 33, Borins J.A. explained, at para. 28, that even a clear and unambiguous exclusion clause will not be applied where: a) it is inconsistent with the main purpose of the insurance coverage; b) the result would be to effectively nullify the coverage provided by the policy; and, c) to apply the exclusion clause would be contrary to the reasonable expectations of the ordinary purchaser of the coverage. [97] However, this case is distinguishable from Zurich . [98] First, unlike the decision in Zurich , the exclusion is entirely consistent with the main purpose of the insurance coverage, which is to provide compensatory damages for personal injury arising from the conduct of business except in accordance with specific exclusions under the policy. The policies provide coverage for a range of services provided by Laridae and specifically, its provision of “Professional Services” to FCS. Only one of those services was to update and secure the FCS website. [99] Second, given that the Co-operators policies provide coverage for a range of services which extend beyond the terms of this policy exclusion, the exclusion clause would not nullify the coverage provided under the policy. [100] Third, exclusion of these claims pursuant to the exclusion clauses would not be contrary to the reasonable expectation of the parties. The potential effect of the data exclusion clauses is apparent on the face of the policies. Unlike Zurich , where “a reasonable policyholder would expect that the policy insured the very risk that occurred”, a reasonable policyholder in this case would expect that the data exclusion clause would exclude the dissemination of a sensitive Report over social media: Zurich , at para. 39. [101] In G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Co. , 2017 ONCA 298, 335 O.A.C. 172, at paras. 24-25 , this court considered and rejected a similar nullification argument. This court observed that commercial general liability policies: are not “all-risk” policies. They do not insure the manner in which the insured conducts its business. They do not generally cover the cost of repairing the insured’s own defective or faulty work product. That is what the parties in the present case bargained for. To hold them to that bargain is entirely reasonable and does not render the coverage under the policy meaningless. [Citations omitted.] [102] Like the insurer in G & P Procleaners, the Co-operators’ policies do not insure against all risks. They clearly articulate what is and is not covered. Non-bodily injury arising from the display or distribution or data on the internet is not covered by their terms. To hold the parties to this bargain is consistent with the provisions in the policy, it does not nullify the effect of the policies, and it accords with the reasonable expectations of the parties. Conclusion on the duty-to-defend issue [103] In summary, I find that Co-operators owes no duty to defend either FCS or Laridae because (i) the exclusion clauses are unambiguous, (ii) all claims asserted in these proceedings are covered by the clear language of the exclusion clauses, and (iii) denial of coverage would not nullify the policies. (3) The Third Issue: Removal of the Right to Participate in the Defence [104] Given my conclusion that Co-operators has no duty to defend, it is unnecessary to address the third issue. [105] However, I note that the parties agreed at the hearing that, if Co-operators did have a duty to defend, Co-operators should receive reports from counsel who have been acting for FCS and Laridae for the last four years, and have the ability to jointly instruct counsel. [106] They also agreed that, should Co-operators have a duty to defend, it would be appropriate to establish a joint protocol for the management of documents and the litigation, similar to that ordered by this court in Markham (City) v. AIG Insurance Company of Canada , 2020 ONCA 239 , 445 D.L.R. (4th) 405, leave to appeal refused, [2020] S.C.C.A. No. 170. [107] The establishment of such a protocol reflects the balance between the insured’s right to a full and fair defence of the civil action and the insurer’s right to control that defence because of its potential ultimate obligation to indemnify: see Brockton (Municipality) v. Frank Cowan Co. , 57 O.R. (3d) 447 (Ont. C.A.). It also reflects the fact that an insurer that has reserved its rights on coverage does not lose its right to control the defence and appoint counsel unless, in the circumstances, a reasonable apprehension of conflict of interest would arise if counsel were to act for both the insurer and the insured: Brockton, at paras. 39-40, 43; citing Zurich of Canada v. Renaud & Jacob , [1996] R.J.Q. 2160 (C.A.) , per Lebel J.A. [108] The onus is on the insured to establish such a reasonable apprehension of conflict of interest on the part of the insurer: Brockton , at para. 49 ; Wal-Mart Canada Corp. v. Intact Insurance Co. , 2016 ONSC 4971, 133 O.R. (3d) 716; and Brookfield Johnson Controls Canada LP v. Continental Casualty Company , 2017 ONSC 5978. DISPOSITION [109] For the above reasons, I would allow the appeal and hold that Co-operators has no duty to defend either the class action or the third-party claim. [110] I would award costs to Co-operators in the amount of $15,000 for the appeals and $30,000 for the applications, as agreed by the parties. Released: March 15, 2021 “A.H.” “J.A. Thorburn J.A.” “I agree. Alexandra Hoy J.A.” “I agree. David Brown J.A.” [1] Today, FCS is authorized under the Child, Youth and Family Services Act, 2017 , S.O. 2017, c. 14.

COURT OF APPEAL FOR ONTARIO CITATION: Farrell v. Kavanagh, 2021 ONCA 213 DATE: 20210406 DOCKET: M52272 (C69083) Paciocco J.A. (Motion Judge) BETWEEN Thomas Patrick Farrell and The Midas Investment Corporation Plaintiffs (Appellants/Moving Parties) and John Kavanagh, Cosa Nova Fashions Ltd. , B & M Handleman Investments Limited , Comfort Capital Inc. , 693651 Ontario Ltd. , E. Manson Investments Limited , Natme Holdings Ltd. , Francie Storm , Barsky Investments Ltd. , Stephen Handleman , Rosewill Investment Corporation , Thomas Bock , The Bank of Nova Scotia Trust Company and Canada Investment Corporation , Colina King, C & K Mortgage Services Inc. o/a Rescom Capital, Gary Gruneir, Bill Shimbashi, 1888871 Ontario Inc. and Carlo Parentela Defendants (Respondents/ Responding Parties ) Maurice J. Neirinck, for the moving parties David P. Preger, David Seifer and Reeva M. Finkel, for the responding parties Heard: April 1, 2021 by video conference ENDORSEMENT OVERVIEW [1] The moving parties, Thomas Patrick Farrell and The Midas Investment Corporation (“Midas”), appeal the order of Koehnen J., dated December 31, 2020, dismissing their action concerning the validity of two mortgages. Mr. Farrell owns a controlling share of Midas. The dismissed action related to mortgage debt of $5 million secured against two properties Midas owned in the City of Toronto: 205 Yonge Street and 90 Eastern Avenue (the “Properties”). [2] In their action, the moving parties claimed the mortgages were fraudulent. They sought a money judgment against John Kavanagh, a Midas insider and the alleged ringleader in the alleged mortgage fraud. Among other relief, they also sought a declaration that the mortgages were invalid based on what they alleged the responding party mortgagees knew about the supposed fraud. [3] After over seven years of litigation, the trial judge ruled against the moving parties. Among other dispositions, he declared that the mortgages were valid. In the motion before me, the moving parties seek a stay of that declaration of validity and of the enforcement of the mortgages pending the outcome of the appeal. [4] For the reasons below, I dismiss the motion. ANALYSIS [5] As the parties agree, the test in RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311 applies when determining whether to grant a stay pending appeal: 2257573 Ontario Inc. v. Furney , 2020 ONCA 742, at paras. 19-20. In applying the RJR-MacDonald test, the overriding question for the court is whether the interests of justice favour a stay: Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), at p. 677. [6] Applying that test, I am not persuaded that a stay pending appeal is in the interests of justice. (i) There is a serious issue to be determined on the appeal, but barely [7] The threshold to establish a serious question on the appeal is low. The court must make a preliminary assessment of the merits of the case and determine whether the issues on appeal are either frivolous or vexatious: RJR-MacDonald , at p. 337; Circuit World Corp., at p. 677. [8] Although, in my view, the grounds of appeal hold out little prospect of success, I cannot say that they are frivolous or vexatious. I therefore accept that there is a serious issue to be determined on appeal. [9] However, the three considerations identified in RJR-MacDonald are not “watertight compartments”; the strength of one may compensate for the weakness of another: Starkman v. Home Trust Company , 2015 ONCA 436, at para. 7. I will therefore elaborate on my view that, while the low threshold of a serious issue to be determined on appeal is met, it is barely met. [10] I agree with the responding parties that the grounds of appeal advanced largely represent an attempt by the moving parties to re-try factual findings and credibility determinations that were for the trial judge to make. I also agree that the moving parties have not identified any palpable and overriding errors in the trial judge’s factual findings that raise a realistic prospect of success on appeal. However, I cannot say that all the criticisms of the trial judge’s reasoning are frivolous or vexatious. The odds are strongly against these grounds of appeal succeeding, but it cannot be said that they do not raise a serious issue. [11] A further challenge that the moving parties will have on appeal is that, even if the key credibility findings are called into question on the grounds advanced, the trial judge provided alternative reasons for his decision based on the hypothetical assumption that Mr. Kavanagh did commit the fraud alleged by the moving parties. Those alternative reasons explain why the mortgages would nonetheless be valid. In my view, it is highly unlikely that an appeal panel would accept the moving parties’ core submission – that these alternative reasons are tainted by the trial judge’s credibility findings. Nor, in my view, do the few alleged legal errors identified by the moving parties offer much hope for success. Once again, since I cannot say that all of these grounds of appeal are frivolous, they satisfy the first criterion of a serious issue to be determined, but barely so. (ii) No irreparable harm to the moving parties [12] Irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”: RJR-MacDonald , at p. 341. [13] I am not persuaded that the moving parties will suffer irreparable harm if the declaration of validity remains and enforcement efforts are permitted to proceed. There is nothing unique about the Properties. Even if the moving parties are successful in the appeal, any loss they incur by the sale of the Properties pending appeal can be compensated with money. There is no suggestion that the responding party mortgagees could not pay a money judgment to recompense the moving parties, if required. [14] The moving parties’ concern that market conditions are currently poor, making a sale improvident, is not borne out on the evidence. The suggestion that market conditions for a sale of the Properties would improve if delayed until the end of the appeal period is speculative. Moreover, the moving parties’ claimed aversion to a sale under current conditions is undermined by their efforts to sell the Yonge Street property, including through the late-breaking acceptance of an offer to purchase that property. The execution of this agreement of purchase and sale also takes the wind out of the sails of the moving parties’ claim that a sale now would rob them of the benefit of any potential increase in value of the Properties that might accrue while the appeal plays out. [15] On the evidence before me, the responding party mortgagees’ immediate plan is to seek the appointment of a receiver. I am advised that a hearing to appoint a receiver is set for April 6, 2021. If a receiver is appointed, the receiver will be obliged to consider the moving parties’ interests as well as any offers they have procured, including from the anonymous party that signed the late-breaking agreement of purchase and sale. I appreciate that a distress sale, such as a receiver’s sale, can suppress values, but I also agree with the responding parties that the purpose underlying court-supervised receivers is to avoid improvident sales. The risk that the Yonge Street property will be sold at less than market value is speculative. [16] Accordingly, I am not persuaded that denying the requested stay would cause irreparable harm to the moving parties. (iii) The balance of convenience does not favour granting a stay [17] Nor am I persuaded that the balance of convenience favours the moving parties. I will first consider the alleged inconvenience to the moving parties of denying the stay. [18] For the reasons I have given, the harm the moving parties apprehend is compensable with money. Moreover, the moving parties claim that Mr. Farrell has an imposing net worth, and that the value of the mortgaged Properties exceeds the amount the responding party mortgagees claim. If this is so, the moving parties could have ameliorated the risks they apprehend, without acknowledging the mortgage debt they deny, by paying the required amount into court to the credit of the action. They have chosen not to do so. The moving parties therefore bear some responsibility for bringing about the inconveniences they now attempt to invoke. [19] In their factum, the moving parties also argue that they would be inconvenienced if the mortgages are enforced because, based on the implication of correspondence exchanged between the parties, they expected that enforcement would not be sought until the action is finally disposed of on appeal. I am not persuaded by this submission. There was no clear agreement to this effect and no evident breach by the responding party mortgagees of such an undertaking. [20] I do accept that there would be inconvenience to the moving parties in having to recover from the 13 responding party mortgagees if the appeal is successful. However, this inconvenience does not outweigh the continued costs to the responding parties, which I will now recount. [21] The mortgages have been in default since October 2013. It is evident that the moving parties have no intention of making payments on what they continue to maintain is a fraudulent debt. Interest on the mortgages is accumulating at a rate approaching $100,000.00 per month. Based on the long-standing practices of the moving parties, it is probable that unpaid taxes will also continue to accumulate and further encumber the Properties. The moving parties, who bear the onus on this motion, have not presented evidence supporting their position that there is ample equity in the Properties to mitigate the risk to the responding parties if a stay is granted. In my view, on the record before me the balance of inconvenience arising from the risk of financial shortfall favours the responding party mortgagees. [22] I am also not persuaded that delay is a benefit to the responding parties simply because interest is accruing on the mortgage debt. So far, the responding party mortgagees have seen none of the interest owing under the mortgages. Quite simply, the money the responding parties advanced has been “sunk money” almost from day one. They have enjoyed no benefits from their investment. If granted, the enforcement delay would only perpetuate this, effectively freezing the responding parties’ investment for what the moving parties estimate will be at least another year. (iv) A stay is not in the interests of justice [23] Finally, the moving parties urge that the interests of justice require a stay in this case because they contest the validity of the mortgage debt. It therefore cannot be said, as it can in many cases where similar stays are denied, that the moving parties are seeking to stay enforcement measures they had agreed to accept when the mortgage was executed. [24] I have considered this submission, but it does not sway me towards granting the stay. It is uncontested that Mr. Farrell benefited from a significant portion of the money advanced, which was used to pay other debts he owed, or to increase Midas’ equity in the Properties by retiring prior encumbrances. He has enjoyed those benefits since shortly after the mortgage money was advanced yet has paid virtually nothing in return. Moreover, the trial judge found that the mortgage Midas entered into was valid, both in fact and in law. I have already commented on the problems the moving parties face in their efforts to disturb this finding on appeal. CONCLUSION [25] Accordingly, the moving parties have not met their burden. In all of the circumstances, it is not in the interests of justice to stay the declaration of validity or the enforcement of mortgage security. The motion is dismissed. [26] The parties have yet to prepare bills of costs in this motion. The responding party mortgagees are permitted to file written submissions not to exceed 3 pages, supported by a bill of costs, within 10 court days of the release of this decision. The moving parties are likewise permitted to file costs submissions, not to exceed 3 pages, supported by a bill of costs, within 5 working days of the receipt of the responding parties’ submissions. A costs order will then be issued. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fercan Developments Inc. v. Canada (Attorney General), 2021 ONCA 251 DATE: 20210422 DOCKET: C67707 & C67710 van Rensburg, Pardu and Huscroft JJ.A. BETWEEN Fercan Developments Inc. and GRVN Group Inc. Plaintiffs/Responding Parties (Respondents) and Attorney General of Canada, Her Majesty the Queen in Right of Ontario on Behalf of the Ontario Provincial Police, and Stuart Hayhurst Defendants/Moving Parties (Appellants) Judie Im and Baaba Forson, for the appellants, Ontario Provincial Police and Stuart Hayhurst Joël Robichaud and James Schneider, for the appellant, The Attorney General of Canada William Friedman, Patrick Bakos, Judy G. Hamilton, Brian H. Greenspan and Naomi M. Lutes, for the respondents, Fercan Developments Inc. and GRVN Group Inc. Heard: in writing, with supplementary submissions in writing On appeal from the judgment of Justice Heather McArthur of the Superior Court of Justice, dated October 10, 2019, with reasons reported at 2019 ONSC 5780. REASONS FOR DECISION [1] The sole issue on these appeals is whether the motion judge erred when she concluded, in applying s. 5(1)(a)(iv) of the Limitations Act, 2002 , S.O. 2002, c. 24, Schedule B (the “ Limitations Act ”), that the limitation period had not expired for the respondents’ claims against the appellants, and she refused to dismiss their claims asserted in the consolidated action as statute-barred. [2] For the reasons that follow, we dismiss the appeals. FACTS [3] The respondents, Fercan Development Inc. (“Fercan”) and GRVN Group Inc. (“GRVN”), brought actions in the Superior Court against the appellants, the Attorney General of Canada (the “AGC”), Her Majesty the Queen in Right of Ontario on Behalf of the Ontario Provincial Police and Detective Constable (“DC”) Stuart Hayhurst (together, the “OPP Defendants”), claiming malicious prosecution, negligent investigation, misfeasance in public office and civil conspiracy. [4] The actions arose out of the appellants’ unsuccessful attempts to obtain forfeiture of certain properties of the respondents which housed large scale marihuana grow operations, and the net proceeds of those properties. As the motion judge observed, “[t]he facts leading to [the] summary judgment motion have spawned significant litigation over the course of almost a decade. There have been numerous judicial decisions detailing the various twists and turns this matter has taken over the years”. [5] The motion judge set out much of the relevant chronology in her reasons. It is sufficient here to provide only the following brief outline: · The AGC brought an application for forfeiture under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “criminal forfeiture application”). DC Hayhurst, an OPP officer, swore affidavits in support of the criminal forfeiture application and he testified at the hearing. · On September 11, 2013, West J. of the Ontario Court of Justice dismissed the criminal forfeiture application. West J. stated, among other things, that “the evidence overwhelmingly leads to the conclusion that Fercan and GRVN, or the directing minds of those corporations, are innocent of any complicity or collusion”. · DC Hayhurst referred the matter to the Attorney General of Ontario (the “AGO”), which commenced forfeiture proceedings under the Civil Remedies Act , S.O. 2001 , c. 28 (the “civil forfeiture application”). On April 23, 2014, the AGO was unsuccessful in its motion to preserve the proceeds of the respondents’ properties for the civil forfeiture application. Leave to appeal this decision was refused on June 26, 2014. · On June 25, 2014, West J. granted the respondents’ application for costs of the criminal forfeiture application, concluding that there had been a “marked and unacceptable departure from the reasonable standard expected of the Crown”, and that, in “the unique circumstances of this case”, costs should be awarded. On January 21, 2015, he ordered the AGC to pay the respondents costs of $570,000. · On April 14, 2016 this court dismissed an appeal of the costs order of West J., upholding his findings of Crown misconduct, and concluding that the Crown had “exercised the coercive power of the state and forced the respondents to participate in a lengthy and onerous proceeding to defend their legitimate property interests” and had launched “a completely meritless application”: R. v. Fercan Developments Inc. , 2016 ONCA 269, 130 O.R. (3d) 321, at paras. 125, 128. · The respondents commenced an action against the AGC on May 31, 2016, and against the OPP Defendants on September 19, 2016. [1] The two actions were consolidated in January 2017. SUMMARY JUDGMENT MOTION [6] The appellants moved for summary judgment to dismiss the actions. The issue was whether the respondents’ claims against the appellants were discovered, or ought reasonably to have been discovered, within the meaning of ss. 5(1)(a) and (b) of the Limitations Act , more than two years before each action was commenced. The appellants argued that the two-year limitation period ran from September 11, 2013, the date that West J. dismissed the AGC’s criminal forfeiture application. [7] The respondents filed an affidavit in response to the motions. The principal of Fercan, after setting out the chronology of the proceedings, stated that it was not until this court upheld the finding of West J. of a marked and unacceptable departure from the reasonable standards expected from the prosecution, that it appeared there would be finality to the numerous interrelated proceedings and that it would be appropriate for Fercan to bring a claim for damages against the various government entities resulting from the forfeiture proceedings. There was no cross-examination on the affidavit. [8] The motion judge concluded that the first three elements of the discoverability test, pursuant to ss. 5(1)(a)(i), (ii) and (iii) of the Limitations Act , were met as of September 11, 2013, findings that are not challenged on appeal. It was at that point that the respondents knew they had suffered injury, loss or damage that had been caused by the acts or omissions of the appellants. The motion judge observed that the respondents at that time “were aware that they were innocent third-parties who had been forced to defend their legitimate property interests in a meritless application in onerous and lengthy proceedings” and that “[t]hey also knew, or ought to have known, that the criminal forfeiture proceedings had terminated in their favour”. [9] The motion judge turned to consider s. 5(1)(a)(iv): when did the respondents know, or when ought they reasonably to have known “that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”? [10] The motion judge concluded that, pursuant to s. 5(1)(a)(iv), it was not appropriate to commence proceedings until, at the earliest, June 26, 2014 , when the civil forfeiture proceedings came to an end. This meant that the action against the AGC on May 31, 2016 was not statute-barred. The motion judge went on to find that it was not appropriate to commence proceedings, and the respondents’ claims against all appellants were not discovered, until April 14, 2016 , when this court upheld the costs order of West J. This meant that the action against the OPP Defendants, which was commenced on September 19, 2016, was also commenced within the applicable limitation period. THE APPEALS 1. Standard of Review [11] Whether a limitation period expired before an action was commenced is a question of mixed fact and law, and subject to review on appeal based on a “palpable and overriding error”: Longo v. MacLaren Art Centre Inc. , 2014 ONCA 526, 323 O.A.C. 246, at para. 38; Kassburg v. Sun Life Assurance Company of Canada , 2014 ONCA 922, 124 O.R. (3d) 171, at para. 40. This is the case whether the determination is made at trial or in a motion for summary judgment: Crombie Property Holdings Ltd. v. McColl-Frontenac Inc. , 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 31, leave to appeal refused, [2017] S.C.C.A. No. 85. Findings of fact by the court below are subject to review on a palpable and overriding error standard. A “palpable and overriding error” is “an obvious error that is sufficiently significant to vitiate the challenged finding of fact”: Longo , at para. 39. However, where there is an extricable error of principle, the standard of review is correctness: Housen v. Nikolaisen , 2002 SCC 33, [2002] S.C.R. 235, at paras. 8, 36. [12] Contrary to the appellants’ arguments, this is not a case that involves the interpretation of a statutory provision, namely s. 5(1)(a)(iv) of the Limitations Act , where the standard of review is correctness. Nor, as we explain, is there any demonstrated error of law or principle in the trial judge’s analysis, or any palpable and overriding error in her findings of fact or her application of the legal test to such findings. 2. The Legal Test [13] The motion judge applied the correct legal framework. Citing Nasr Hospitality Services Inc. v. Intact Insurance , 2018 ONCA 725, 142 O.R. (3d) 561, she recognized that determining whether an action is statute-barred or declaring when a claim was discovered requires the court to make specific findings of fact about each element set out in s. 5 of the Limitations Act , and she went on to make such factual findings. [14] After concluding that the first three elements of the discoverability test under ss. 5(1)(a)(i), (ii) and (iii) were met as of September 11, 2013, the motion judge addressed s. 5(1)(a)(iv). In doing so, she cited the relevant jurisprudence from this court, noting that the determination under s. 5(1)(a)(iv) is a fact-specific exercise ( 407 ETR Concession Company Limited v. Day , 2016 ONCA 709, 133 O.R. (3d) 762, at para. 34, leave to appeal refused, [2016] S.C.C.A. No. 509) and that the issue was whether the limitation period should be “suspended because a proceeding would be premature” ( Presidential MSH Corporation v. Marr Foster & Co. LLP , 2017 ONCA 325, 135 O.R. (3d) 321, at para. 27). The motion judge recognized that s. 5(1)(a)(iv) reflects that parties should be discouraged from rushing to litigation, while delay for tactical reasons would not suspend the running of the limitation period: Markel Insurance Company of Canada v. ING Insurance Company of Canada , 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34. [15] The appellants argue that the motion judge’s decision significantly expands the application of the “appropriate means” element of the discoverability test under s. 5(1)(a)(iv) beyond any previous jurisprudence from this court, and that it injects uncertainty into the law of limitations. They contend that the motion judge relied on irrelevant factors, and that she ought to have restricted her analysis to a consideration of whether the respondents were pursuing an alternative means of remedying their alleged losses, such that it was not yet appropriate for them to commence an action in respect of those losses. [16] We disagree. Contrary to the submissions of the appellants, the motion judge properly recognized that there were not simply two categories of cases in which it might not be legally appropriate to start a proceeding despite the claim having been discovered, within the meaning of s. 5(1)(a)(i)-(iii): Nasr , at para. 51. The motion judge did not err when she considered all of the relevant circumstances and not simply whether the forfeiture proceedings provided an alternative means for the respondents to remedy their alleged losses. She was required to consider the “nature of the injury, loss or damage” under s. 5(1)(a)(iv), as well as, under s. 5(1)(b), using a “modified objective” test, what a reasonable person with the abilities and in the circumstances of the respondents ought to have known: Presidential , at para. 18; Service Mold + Aerospace Inc. v. Khalaf , 2019 ONCA 369, 146 O.R. (3d) 135, at para. 32. While previous cases can assist in identifying certain general principles, whether a proceeding would have been an appropriate means to seek to remedy a claimant’s damage, injury or loss will turn on the facts of each case and the abilities and circumstances of the particular claimant: Presidential , at para. 19; ETR Concession Company , at para. 34. 3. Application of the Test to the Facts [17] As already noted, the motion judge first found that the respondents knew or ought to have known that an action would be an “appropriate means” under s. 5(1)(a)(iv) in the circumstances of this case, at the earliest, on June 26, 2014 , when the civil forfeiture proceedings came to an end (which meant that the action against the AGC was not statute-barred). The motion judge went on to conclude the respondents did not know, nor ought to have known, that an action would be an appropriate means until April 14, 2016 , when this court upheld the costs order of West J. (which meant that the action against the OPP Defendants was also commenced within the applicable limitation period). [18] We are not persuaded that any palpable and overriding error has been demonstrated by the appellants in respect of either date. A. The June 26, 2014 date [19] In concluding that the time for commencement of an action against the AGC began to run “at the earliest” on June 26, 2014, the motion judge relied on the civil forfeiture proceedings that were commenced and pursued by the appellants against the respondents. She observed that the appellants, in undertaking such proceedings, were pursuing a process that, if successful, could have left the respondents with little to no loss to claim. We agree with the motion judge’s observation that it is important not to conflate the considerations under the first three elements of the discoverability test with the appropriate means element set out in s. 5(1)(a)(iv). The question is not, as the appellants suggest, whether an action could have been brought by the respondents, but when it was appropriate to do so. While knowledge of the extent of a plaintiff’s damages is not required under (i) to (iii), the motion judge was entitled to take into consideration the ongoing forfeiture proceedings that the parties were engaged in, when determining under s. 5(1)(a)(iv) whether it was appropriate for the respondents to bring an action. She concluded that, in the particular circumstances, it would have been premature to require the respondents to launch a lawsuit, as they were embroiled in the civil forfeiture application, a related matter brought against them “by the state with all of its resources”, which could have rendered their lawsuit non-viable and unworthy of pursuing. [20] We see no error in the motion judge’s determination that it was premature for the respondents to commence their action until after the civil forfeiture proceedings were completed on June 26, 2014. She came to this conclusion after considering all of the relevant circumstances. The facts were unusual. Despite the fact that the AGC was unsuccessful in obtaining an order for criminal forfeiture and was subject to an order for costs that was critical of its conduct, the provincial authorities commenced civil forfeiture proceedings with the same objective – to seize the proceeds of sale of the respondents’ properties. DC Hayhurst was involved in both sets of proceedings. If the civil forfeiture proceedings had been successful, no doubt all of the appellants would have had a strong defence to any action that was commenced by the respondents. The conclusion, on this record, that it was premature for the respondents to pursue a civil action while they were continuing to oppose the forfeiture proceedings, reveals no error. [21] Accordingly, in upholding the motion judge’s conclusions with respect to the June 26, 2014 date, we reject the AGC’s argument that the action against it was statute-barred. B. The April 14, 2016 date [22] The motion judge concluded that the actions against all of the appellants were commenced in time because the time only began to run under s. 5(1)(a)(iv) in respect of the claims against all appellants on April 14, 2016, when this court dismissed the appeal of the order of West J. awarding costs of the criminal forfeiture proceedings against the AGC. [23] The motion judge recognized that West J.’s costs decision “directly and explicitly addressed the conduct of the federal Crown”, and that he had determined that the Crown’s conduct “exhibited a marked and substantial departure from the reasonable standards expected of the Crown”. Nevertheless, she observed that costs against the Crown in such proceedings are a “rare and extraordinary remedy”, that the AGC’s appeal specifically sought to attack the findings of Crown misconduct, that there was precedent for this court taking a very different view, and accordingly, that there was a clear risk that West J.’s findings of misconduct might be rejected on appeal, which would have seriously undermined any action brought by the respondents. The fact that there was another ongoing proceeding – the appeal of West J.’s costs decision – that could have impacted the viability of the respondents’ action was relevant to the application of s. 5(1)(a)(iv) in the circumstances of this case. [24] The motion judge rejected the argument that the AGC’s appeal of the costs order was relevant only to the running of the limitation period against the AGC, and not against the OPP Defendants. She noted the connection between the OPP Defendants and the AGC in advancing the criminal forfeiture application. We do not agree with the appellants’ contention that she erred in treating the OPP Defendants and the AGC as if they were one entity. Instead, she properly referred to the substantial similarities between the claims advanced against all of the appellants, and the specific allegations of misconduct against the OPP Defendants in the course of the criminal forfeiture proceedings. She concluded that the conduct and actions of DC Hayhurst were at issue in both the criminal forfeiture costs decision and the civil litigation, and that this court’s decision on the costs appeal could have impacted the viability of an action against the OPP Defendants. [25] We see no palpable and overriding error in the motion judge’s conclusion that the time began to run under s. 5(1)(a)(iv) in respect of the claims against all appellants on April 14, 2016, when this court released its decision dismissing the appeal from West J.’s costs order. Again, the circumstances were highly unusual. The same parties were already involved in litigation commenced and pursued by the appellants, in which the appellants’ alleged misconduct had taken centre stage. In pursuing the appeal, the AGC did not accept and sought to overturn the findings of West J., ensuring that whether or not there was prosecutorial misconduct remained a live issue until it was determined by this court. As the motion judge reasonably observed, there was a clear risk of a successful appeal, which would have impacted the viability of an action based on the same allegations of prosecutorial misconduct. [26] As for the claims against the OPP Defendants, they are without question intertwined with the claims against the AGC in the now consolidated action. The actions of DC Hayhurst, who is alleged to have been directly involved in the criminal forfeiture proceedings and to have taken the lead in initiating the civil forfeiture proceedings, were part of the misconduct found by West J. in awarding costs against the AGC. [27] After assessing the claims against all parties, it was open to the motion judge to conclude, as she did, that a successful appeal of the costs decision would have undermined the claims against all of the appellants, including the OPP Defendants. This was not, as the appellants contend, a tactical decision on the part of the respondents, as in Markel , or simply a question of a plaintiff waiting until the end of other proceedings that might improve their chances of success in a civil action, as in Sosnowski v. MacEwen Petroleum Inc. , 2019 ONCA 1005, 441 D.L.R. (4th) 393. Rather, as in Winmill v. Woodstock (Police Services Board) , 2017 ONCA 962, 138 O.R. (3d) 641, at para. 31, leave to appeal refused, [2018] S.C.C.A. No. 39, the result of the proceedings in which the parties were already involved, including the determination by this court of the prosecutorial misconduct allegations, would have been a “crucial, bordering on determinative factor” in whether the respondents had a civil claim to pursue. [28] Accordingly, in upholding the motion judge’s conclusions with respect to the April 14, 2016 date, we reject the appellants’ arguments that the claims against them asserted in the now consolidated action are statute-barred. DISPOSITION [29] For these reasons, the appeals are dismissed. The respondents are entitled to their costs of the appeals against the appellants. [30] If the parties are unable to agree on the amount and/or allocation of such costs, the court will receive written submissions limited to three pages each (in addition to the respondents’ costs outline), as follows: from the respondents within 20 days of these reasons, and from the appellants within 15 days thereafter, with reply submissions, if any, within ten days of receipt of the submissions from both respondents. Written costs submissions are to be sent to the court electronically at the following email address: coa.e-file@ontario.ca. “K. van Rensburg J.A.” “G. Pardu J.A.” “Grant Huscroft J.A.” [1] On June 15, 2016 the respondents had served the OPP Defendants with a Notice of Claim under s. 7 of the Proceedings Against the Crown Act , R.S.O. 1990, c. P.27, as amended.