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COURT OF APPEAL FOR ONTARIO CITATION: Fermar Paving Limited v. Ontario (Transportation), 2021 ONCA 111 DATE: 20210219 DOCKET: C68358 Doherty, Pepall and Thorburn JJ.A. BETWEEN Fermar Paving Limited Applicant (Appellant) and Her Majesty the Queen in Right of Ontario, as represented by the Minister of Transportation Respondent (Respondent in Appeal) Eric A. F. Grigg and James A. LeBer, for the appellant Antonin I. Pribetic and Alex Redinger, for the respondent Heard and released orally: February 17, 2021 by Video Conference On appeal from the judgment of Justice Jonathon C. George of the Superior Court of Justice, dated April 27, 2020. REASONS FOR DECISION [1] The outcome of the application turned on the interpretation of interrelated and somewhat complex provisions in standard form agreements entered into by the parties. The terms of the parties’ agreement were found in various documents, all of which were standard in the road construction industry. [2] We are in substantial agreement with the reasons of the application judge, reported at 2020 ONSC 2603 and, in particular, his observations at paras. 32 and 43-49. The appeal is dismissed. The respondent is entitled to costs of the appeal, fixed at $7,100, inclusive of disbursements and relevant taxes. “Doherty J.A.” “S.E. Pepall J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fitzgerald v. Reaume, 2021 ONCA 330 DATE: 20210518 DOCKET: C68228 Juriansz, Huscroft and Jamal JJ.A. BETWEEN Stephen Fitzgerald Plaintiff (Appellant) and Leslie Reaume Defendant (Respondent) Michael N. Bergman, for the appellant Trevor Guy, for the respondent Heard: May 10, 2021 by videoconference On appeal from the order of Justice Calum U.C. MacLeod of the Superior Court of Justice, dated March 2, 2020. REASONS FOR DECISION [1] This is an appeal from the decision of the Superior Court judge [the judge] dismissing the appellant’s action pursuant to Rule 2.1.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [2] The claim sought $1,050,000 in damages against the respondent, a Vice‑Chair at the Human Rights Tribunal of Ontario. The action arose out of a hearing into a human rights complaint against the appellant, over which the respondent was presiding. The appellant alleged that the respondent failed to conduct the hearing in accordance with the required rules, norms, and standards, and that her actions concerning an adjournment in the proceedings during which the appellant sought medical attention from paramedics infringed his rights to health, dignity, and liberty. [3] The respondent wrote to the Registrar of the Superior Court, copying the appellant, requesting an order under r. 2.1 dismissing the claim. The appellant wrote to the Registrar stating that he contested the respondent’s submissions and would provide reasons “should the court consider the request to dismiss”. [4] The judge dismissed the claim without receiving submissions from the parties. He noted that the appellant’s concerns regarding the human rights hearing should have been raised before the Tribunal and that the only jurisdiction the court had was by way of an application for judicial review in the Divisional Court. The appellant had no right to sue the respondent concerning the manner in which she conducted the hearing. Moreover, the statement of claim disclosed no cause of action and could not be saved. It was, on its face, an improper pleading and a frivolous action. [5] The principles governing the operation of r. 2.1 are set out in Visic v. Elia Associates Professional Corporation , 2020 ONCA 690, at para. 8. It is well established that the decision of the judge is a discretionary decision that is entitled to deference. We see no basis to interfere with the judge’s decision in this case. [6] We accept, as the appellant submits, that the statement of claim in this case is not marred by the sorts of inflammatory rhetoric or hyperbolic claims often seen in a frivolous and vexatious action. Nevertheless, the claim cannot succeed given the respondent’s immunity from suit, and this immunity precludes the pleadings from being saved. It was open to the judge to conclude that this is the sort of litigation that r. 2.1 was designed to weed out. We do not accept the appellant’s attempt to avoid the immunity by distinguishing the respondent’s actions conducting the hearing from those taken when she was not physically present in the hearing room. [7] Nor do we accept that the judge’s decision to not to permit submissions violated the duty of fairness. Determinations under r. 2.1.01(1) are to be made in a summary manner and pursuant to subsection (3) may, in the court’s discretion, be made without written submissions. The judge considered the matter and stated that he would have dealt with the request pursuant to a different procedure if it were decided on the basis of a failure to comply with either the Crown Liability and Proceedings Act , 2019 , S.O. 2019, c. 7, Sched. 17 or the Limitations Act , 2002 , S.O. 2002, c. 24, Sched. B. However, given that the action could not possibly succeed, it was open to the judge to conclude that no purpose would be served in putting the plaintiff on notice and providing an opportunity to make written submissions. [8] The appeal is dismissed. [9] The respondent does not seek costs and none are awarded. “R.G. Juriansz J.A.” “Grant Huscroft J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA 313 DATE: 20210510 DOCKET: M52372 (C69253) Paciocco J.A. (Motion Judge) BETWEEN Larry Philip Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee Plaintiffs and The Attorney General of Canada , The Presbyterian Church In Canada, The General Synod of the Anglican Church of Canada, The United Church of Canada, The Board of Home Missions of The United Church of Canada, The Women’s Missionary Society of The Presbyterian Church, The Baptist Church In Canada, Board of Home Missions and Social Services of the Presbyterian Church in Bay, The Canada Impact North Ministries of the Company for the Propagation of the Gospel in New England (also known as The New England Company), The Diocese of Saskatchewan, The Diocese of The Synod of Cariboo, The Foreign Mission of The Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of the Anglican Church of Canada, The Missionary Society of the Methodist Church of Canada (also known as The Methodist Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of The Anglican Church of the Diocese of Quebec, The Synod of The Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of The Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the Diocese of Qu’appelle, The Synod of the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in Canada, The Board of Home Missions and Social Service of the Presbyterian Church of Canada, The Women’s Missionary Society of the United Church of Canada, Sisters of Charity, a Body Corporate also known as Sisters of Charity of St. Vincent de Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre Dame-Auxiliatrice, Les Soeurs de St. Francois d’Assise, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de Jésus-Marie, Les Soeurs de l’Assomption de la Sainte Vierge, Les Soeurs de l’Assomption de la Saint Vierge de l’Alberta, Les Soeurs de la Charité de St.-Hyacinthe, Les Oeuvres Oblates de l’Ontario, Les Résidences Oblates du Québec, La Corporation Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Soeurs Grises du Manitoba Inc., La Corporation Episcopale Catholique Romaine de la Baie d’Hudson-The Roman Catholic Episcopal Corporation of Hudson’s Bay, Missionary Oblates-Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary Immaculate-St. Peter’s Province, The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of British Columbia, The Sisters of Charity of Providence of Western Canada, La Corporation Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiepiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface-The Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Episcopale Catholique Romaine de Prince Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA, Archdiocese of Vancouver-The Roman Catholic Archbishop of Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopale Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt. Angel Abbey Inc. Defendants (Respondents/ Responding Party ) In the Matter of the Request for Directions by Dr. Edmund Metatawabin and by IAP Claimants T-00185, S-20774 and S-16753 Pertaining to St. Anne’s Indian Residential School Requestors (Appellants/Moving Parties) Proceedings under the Class Proceedings Act , 1992 , S.O. 1992, c. 6 Michael Swinwood and Fay K. Brunning, for the moving parties Catherine A. Coughlan, Brent Thompson and Eve Coppinger, for the responding party Heard: April 22, 2021 by video conference ENDORSEMENT OVERVIEW [1] The motions before me relate to claims under the Independent Assessment Process (the “IAP”) made against the Attorney General of Canada (“Canada”), the responding party, by former residents of St. Anne’s Indian Residential School (“St. Anne’s IRS”) pursuant to the Indian Residential School Settlement Agreement (the “IRSSA”). [2] The moving parties include three former residents of St. Anne’s IRS who made claims under the IAP. They contend that at the time their matters were resolved, Canada had failed to fulfill its disclosure obligations, and still has not done so. In a request for directions (“RFD”) initiated on May 12, 2020 (“Metatawabin RFD #2”), the moving parties seek a declaration that Canada breached previous disclosure orders made on January 14, 2014 and June 23, 2015 (the “Disclosure Orders”). In Metatawabin RFD #2, the moving parties also seek an order compelling Canada to revise documentation used in their IAP claims within 30 days, so the claimants can determine whether they should seek to re-open those claims. Finally, Metatawabin RFD #2 seeks a preservation order preventing Canada from destroying documents that pertain to the St. Anne’s IRS IAP claims. [3] Dr. Edmund Metatawabin is also a moving party. Dr. Metatawabin is a former St. Anne’s IRS resident and a distinguished Indigenous leader who is actively involved in IRSSA matters relating to St. Anne’s IRS. In this matter he has offered to represent the interests of St. Anne’s IRS abuse survivors whose claims may have been adversely affected by allegedly unfair disclosure. Many of these survivors are unknown to the moving parties because their identities are confidential under the IRSSA. [4] The moving parties are pursuing their claims in Metatawabin RFD #2 before Glustein J. under the IRSSA’s Court Administration Protocol (the “CAP”). Ordinarily, Perell J., the Ontario Supervising Judge for IRSSA matters, would be hearing Metatawabin RFD #2. However, Perell J. recused himself from Metatawabin RFD #2 due to reasonable apprehension of bias concerns arising out of a related proceeding. [5] On March 18, 2021, Canada filed an RFD requesting that an Independent Special Advisor (“ISA”) be appointed to conduct an independent review of certain St. Anne’s IRS IAP claims. On April 20, 2021, Perell J. granted the request. The moving parties seek to stay that order (the “Order Under Appeal”) pending appeal. The moving parties contend that the Order Under Appeal improperly undercuts the Metatawabin RFD #2 proceedings and provides for a process not contemplated in the IRSSA. Moreover, the moving parties say that the Order Under Appeal was secured in an abusive manner by Canada in an unfair, secret proceeding that did not comply with the CAP, and was issued by a judge who should have recused himself in light of his earlier recusal from Metatawabin RFD #2. [6] The moving parties also ask for an interim preservation order covering all documents possessed by government officials relating to St. Anne’s IRS IAP claimants. [7] Of course, it is not my role as a motion judge to resolve the underlying dispute or to comment on the fairness or wisdom of decisions that have been taken below. My sole function is to determine whether a stay pending appeal is in the interests of justice based on established legal standards, and to determine whether I should exercise my discretion to issue the requested preservation order. [8] For reasons that follow, I am not persuaded it is in the interests of justice to stay the Order Under Appeal. Nor, in my view, do the interests of justice call for a preservation order. I would therefore dismiss the motions before me. BACKGROUND AND MATERIAL FACTS The IRSSA and the IAP [9] The IRSSA is the settlement agreement for several class actions and civil claims relating to sexual and physical abuse of former students at Canadian residential schools. In exchange for forfeiting their right to sue, potential claimants have the option of participating in the IRSSA’s IAP. [10] Of importance, Canada has responsibilities relating to the creation of the evidentiary record to be used in assessing IAP claims. Canada is required to disclose relevant documents in its possession and control, and it is obliged to use this information to produce a narrative report (“Narrative”) relating to each residential school, as well as person of interest reports (“POI Reports”) for each claimant for use in the IAP. These documents can play an instrumental role in determining the success of IAP claims. [11] The CAP governs the process for RFDs brought under the IRSSA. The CAP is administered by nine Supervising Judges; one from each of the affected provincial and territorial jurisdictions. Pursuant to the terms of the CAP, two Administrative Judges are selected from among the Supervising Judges. Perell J., the Ontario Supervising Judge, is the current Eastern Administrative Judge (“EAJ”), and his order is the Order Under Appeal. I shall refer to him as the EAJ in this endorsement. The current Western Administrative Judge (“WAJ”) is the British Columbia Supervising Judge. [12] Any party, counsel, or other entity with standing may bring an RFD to the Administrative Judges relating to “all matters that require court orders, directions or consideration during the course of the administration” of the IRSSA. After receiving an RFD, the EAJ and WAJ must determine whether a case conference or a hearing is required. Case conferences may be conducted by one or both Administrative Judges. If a hearing is required, the Administrative Judges assign the hearing of the RFD to the Supervising Judge from the court with jurisdiction over the matter. [13] Although all IAP claims have been completed, and the IAP ceased operations on March 31, 2021, supervisory courts may review and re-open claims where “exceptional circumstances” are present: J.W. v. Canada (Attorney General) , 2019 SCC 19, [2019] 2 S.C.R. 224, at para. 27. The moving parties take the position that if Canada did breach the Disclosure Orders, dispositions and settlement agreements involving St. Anne’s IRS IAP claimants may need to be re-opened, and punitive and aggravated damages may be appropriate. The disclosure issues in Metatawabin RFD #2 [14] The first Disclosure Order at issue in Metatawabin RFD #2 was made by the EAJ on January 14, 2014. In it he ordered the production of documents relating to an extensive criminal investigation conducted by the Ontario Provincial Police into claims of abuse at St. Anne’s IRS. Canada was also ordered to comply with its disclosure obligations relating to other relevant, non-privileged documents, and to revise the Narrative and POI Reports for St. Anne’s IRS. This Order led to the disclosure of more than 12,000 additional documents and to substantial revisions to the Narrative and to some POI Reports. [15] The second Disclosure Order at issue in Metatawabin RFD #2, dated June 23, 2015, was also made by the EAJ. That Order was obtained by approximately 50 St. Anne’s IRS IAP claimants who were dissatisfied with Canada’s compliance with the January 14, 2014 Disclosure Order. The June 23, 2015 Disclosure Order directed Canada to revise identified reports to include specified categories of information, and to make further particularized disclosure. [16] The parties disagree as to whether Canada has fully complied with the Disclosure Orders; the moving parties contend that Canada has not. One of their core complaints is that Canada failed to revise disclosure relating to claims that had already been resolved before the Disclosure Orders were issued, and that this resulted in unfair settlements affecting an estimated 166+ claimants. [17] Between 2015 and 2018, numerous RFDs were brought before the EAJ seeking further enforcement of the Disclosure Orders. The moving parties contend these RFDs were not heard on their merits because the EAJ “always accepted Canada’s preliminary objections”. They emphasize that courts have a duty to ensure all IAP claimants receive the benefits they bargained for when they entered into the IRSSA and forfeited their right to sue, but argue that the EAJ has breached this obligation by failing to enforce these orders and to re-open claims for fair adjudication. The EAJ’s recusal from Metatawabin RFD #2 [18] Ms. Brunning, in her capacity as counsel participating in related proceedings, made critical comments about the EAJ’s response to attempts to enforce the Disclosure Orders. On January 15, 2018, the EAJ issued an order in which he criticized Ms. Brunning’s conduct and ordered costs personally against her: 2018 ONSC 357. In February 2020, the Divisional Court set these orders aside, finding that the EAJ should have recused himself from making them: 2020 ONSC 1003 (Div. Ct.). [19] On May 12, 2020, the moving parties, with Ms. Brunning as one of their counsel, filed Metatawabin RFD #2, once again seeking the enforcement of the Disclosure Orders, as well as additional incidental relief for individual claimants. [20] On June 5, 2020, the EAJ recused himself as Supervising Judge in Metatawabin RFD #2: 2020 ONSC 3497. By joint direction, the EAJ appointed the WAJ as Supervising Judge to hear Metatawabin RFD #2. Rouleau J.A.’s order dated November 2, 2020 [21] On November 2, 2020, this court set aside the EAJ’s order appointing the WAJ as Supervising Judge for Metatawabin RFD #2. Rouleau J.A. held that para. 5(a) of the CAP “required that RFDs involving strictly Ontario class members and Ontario institutions were to be directed to the Ontario Superior Court of Justice for hearing”: 2020 ONCA 688, at para. 42. As a result, Rouleau J.A. set aside the EAJ’s order assigning Metatawabin RFD #2 to the WAJ and remitted the matter to the Ontario Superior Court of Justice for hearing. Further, Rouleau J.A. directed, at para. 66 of his reasons, that “[a]s the Ontario Supervising Judge has recused himself, it is up to the Chief Justice of the Ontario Superior Court of Justice to assign a different Supervising Judge”. Glustein J.’s appointment and management of Metatawabin RFD #2 [22] On November 5, 2020, in a letter with the reference line “RE: Fontaine v. Canada (Attorney-General) ”, the Chief Justice of the Ontario Superior Court of Justice appointed Glustein J. “to act as Supervising Judge in this matter.” Metatawabin RFD #2 is now proceeding before Glustein J. Canada has filed a motion to dismiss Metatawabin RFD #2, alleging abuse of process. Glustein J. has held multiple case conferences attended by Canada and the moving parties. [23] According to the moving parties, in one such conference on March 12, 2021, Glustein J. indicated he could deal with whether there was a breach of the Disclosure Orders without having to resolve certain outstanding factual issues relating to claimant representation. The moving parties say Glustein J. also advised Canada not to “play a game of ‘got you’ with the documents”. As I understand the moving parties, they interpret the former comment as an indication that Glustein J. is poised to decide the disclosure issue on its merits, and the latter as a caution to Canada not to take a narrow view of its obligation to preserve documents, pending the decision on the merits in Metatawabin RFD #2. Canada’s RFD to appoint an ISA [24] On March 18, 2021, Canada filed an RFD requesting the appointment of an ISA to conduct an independent review of IAP claims brought by former students at St. Anne’s IRS. In this RFD, Canada submitted that, despite a success rate of 96.4% for St. Anne’s IRS IAP claimants, extensive negative publicity arising from the heavily litigated disclosure dispute is undermining public confidence in the integrity of the IRSSA and the IAP. [25] To address this, Canada requested an order that would allow for an independent investigation of certain St. Anne’s IRS IAP claims to determine in each case: (1) whether the 2014 disclosure was available in each claim’s adjudication, (2) if not, whether there was a conscious decision by counsel to proceed without disclosure, and (3) if not, whether the disclosure would have been reasonably likely to have impacted the amount of compensation awarded. The order Canada sought had provisions designed to maintain confidentiality and respect privacy and solicitor-client privilege. The March 22, 2021 Assignment Order [26] On March 22, 2021, the EAJ and WAJ issued a joint direction assigning the EAJ as the Supervising Judge for Canada’s RFD (the “Assignment Order”). The Assignment Order provided for the RFD to be heard in writing. It also directed court counsel to invite written submissions from, inter alia , the requestors in Metatawabin RFD #2 (the moving parties) by April 7, 2021. [27] On April 1, 2021 the moving parties filed a notice of appeal of the Assignment Order, seeking the dismissal of that Order and the confirmation of Glustein J. as the Ontario Supervising Judge “for all RFD matters pertaining to St. Anne’s class members” (“Notice of Appeal #1”). [28] The moving parties brought a concurrent motion to stay the Assignment Order pending appeal (“Motion #1”). They also sought a “Preservation Order” requiring Canada to preserve all documents pertaining to St. Anne’s IRS IAP claims. In addition, Motion #1 requested an order expediting the appeal, “perhaps to be heard by the same panel that issued the November 2, 2020 Reasons and Order.” This is the motion for which notice was given, and it was scheduled before me for an April 22, 2021 hearing. The Order Under Appeal [29] On April 20, 2021, two days before Motion #1 was scheduled to be heard, the EAJ issued the Order Under Appeal, after having received written submissions from the Assembly of First Nations, as well as the IRSSA’s Independent Counsel and the Chair of the National Administration Committee. The moving parties had also filed written submissions, under protest. [30] In the Order Under Appeal, the EAJ identified Canada’s RFD request as urgent, given that the IRSSA was “near completion and serious allegations have been made about the integrity of [the IAP] and about whether the claims of certain Claimants who attended [St. Anne’s IRS] were administered in accordance with the provisions of the IRSSA.” He noted that the “festering grievance [regarding the Disclosure Orders] risks undermining public confidence in the integrity of the IAP with respect to St. Anne’s claims.” [31] The Order Under Appeal modified the terms of Canada’s draft order to accommodate certain objections made before the EAJ. The EAJ appointed the Hon. Ian Pitfield as ISA to conduct the “St. Anne’s Review”. In doing so, the EAJ relied on his authority to appoint a referee pursuant to r. 54 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, “ mutatis mutandis ”. Upon completion of the St. Anne’s Review, the EAJ ordered the ISA to deliver a sealed report of his findings to the court and Canada, but directed that Canada would not participate in the process except to facilitate the ISA’s access to relevant records. At para. 10, the Order Under Appeal set the terms of the St. Anne’s Review as follows: In the report, the ISA shall make an independent determination for each IAP Claimant whose IAP claim was resolved (whether by adjudication, settlement, negotiation, or withdrawal) before additional disclosure was made available pursuant to the [Disclosure Orders] and the ISA shall report to the court the answers to the following questions: i. Were the 2014/2015 disclosure documents available for the claim’s adjudication? ii. If not, could the 2014/2015 disclosure and use of the documents for the IAP have materially affected the amount of compensation paid on the claim? and, iii. If the disclosure and use of the documents could have materially affected the amount of the compensation, what additional compensation should have been paid in accordance with the IRSSA? [Emphasis added.] [32] On April 22, 2021, the day of the motion hearing before me, the moving parties filed a notice of appeal of the Order Under Appeal (“Notice of Appeal #2”). In their Notice of Appeal #2, the moving parties seek to have the Order Under Appeal set aside, and reiterate their request that Glustein J. be confirmed as the Ontario Supervising Judge “to determine all legal matters pertaining to the 166+ St. Anne’s IAP claimants whose rights are being determined in Metatawabin RFD #2”. The moving parties’ grounds of appeal [33] The grounds of appeal are set out at para. 20 of Notice of Appeal #2, but they are suffused with factual claims and argument in a repetitive list of points and subpoints. My understanding of the grounds of appeal being advanced by the moving parties can fairly be summarized as follows: i. The EAJ erred by not recusing himself from this matter because of reasonable apprehension of bias; ii. The EAJ erred by adjudicating Canada’s RFD because Glustein J. was the Ontario Supervising Judge with sole authority to hear all St. Anne’s IRS IAP matters; iii. The EAJ breached rules of natural justice, as the Order Under Appeal was made without a public hearing, without evidence, and without the knowledge, input, and representation of the St. Anne’s IRS IAP claimants whose rights are affected; iv. It was an abuse of process for Canada to bring the RFD that led to the Order Under Appeal; and v. The Order Under Appeal is in breach of the CAP under the IRSSA. [34] On April 21, 2021, the moving parties filed a “Supplementary Notice of Motion” as a “companion” to Motion #1 (“Motion #2”). In Motion #2, the moving parties seek an order staying the Order Under Appeal pending their appeal. THE ISSUES [35] Canada has been pragmatic in allowing the matters before me to move forward. They took no objection to the late service of Motion #2, nor to the fact that Motion #2 was being heard prior to Notice of Appeal #2 having been officially filed. [36] I will therefore consider the relief requested under Motion #1 and Motion #2, subject to two exceptions. First, I will not consider the request made in Motion #1 to stay the Assignment Order. During the oral hearing before me, the moving parties conceded that this request is now moot. Second, in Motion #1 the moving parties asked for an order expediting the appeal. No submissions were made in support of that request during the hearing, so I will not consider it here. [37] There are therefore two issues before me: (a)   Should the Order Under Appeal, dated April 20, 2021, be stayed pending appeal? (b)   Should a preservation order be issued? ANALYSIS A.      THE ORDER UNDER APPEAL SHOULD NOT BE STAYED [38] The overarching consideration on a motion for a stay pending appeal is whether a stay is in the interests of justice : BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16; 2257573 Ontario Inc. v. Furney , 2020 ONCA 742, at para. 20. This determination is informed by the three factors described in RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311, at p. 334: (1)     A preliminary assessment must be made of the merits of the case to ensure there is a serious question to be determined on the appeal; (2)     It must be determined whether the moving party would suffer irreparable harm if the stay were refused; and (3)     An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the stay pending a decision on the merits. [39] As Laskin J.A. noted in Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674, at p. 677, these three criteria are not “watertight compartments” and the “strength of one may compensate for the weakness of another.” [40] I have undertaken this assessment. As I will explain, I am not satisfied that it is in the interests of justice to stay the Order Under Appeal. (1) A Serious Issue to be Determined on Appeal [41] I recognize that the serious issue threshold is low and will be satisfied if an appeal is neither frivolous nor vexatious: Furney , at para. 22. However, my preliminary assessment is that the grounds of appeal raised in respect of the Order Under Appeal are likely frivolous for jurisdictional reasons. I say this based on my preliminary view that the appeal probably should have been brought before the Divisional Court. This militates against the seriousness of the issues to be determined, as the absence of jurisdiction would mean the appeal is “devoid of merit” and therefore frivolous: Heidari v. Naghshbandi , 2020 ONCA 757, 153 O.R. (3d) 756, at para. 10; Henderson v. Henderson , 2014 ONCA 571, 324 O.A.C. 138, at para. 8. The potential jurisdictional problem [42] Pursuant to s. 6(1)(b) of the Courts of Justice Act , R.S.O. 1990, c. C.43 (the “ CJA ”), an appeal lies to this court from “a final order” of the Superior Court of Justice. Speaking generally, if an order is interlocutory, rather than final, this court lacks jurisdiction to hear an appeal from that order. [43] As Sharpe J.A. observed in Fontaine v. Canada (Attorney General) , 2018 ONCA 749, at para. 5, a single judge of this court has “no final authority to determine the issue of jurisdiction”. However, Sharpe J.A. went on to explain that “no stay should be granted in a case over which this court lacks jurisdiction”, so if a jurisdictional issue arises on a stay motion it should be considered. Likewise, in Fontaine v. Canada (Attorney General) , 2020 CanLII 64770 (Ont. C.A.) (“ Fontaine Stay #2 ”), Simmons J.A. held, at para. 14, that a single judge on a stay motion should assess whether the order under appeal is “interlocutory, or even probably interlocutory” since such a finding would “militate against granting the requested stay”: see also, Belton v. Spencer , 2020 ONCA 623, 58 C.P.C. (8th) 16, at paras. 41 and 50. [44] Based on my preliminary assessment below, the Order Under Appeal is probably interlocutory. As such, I conclude that the “serious question” factor militates against granting the requested stay. Jurisdiction probably does not arise from the recusal appeal [45] The moving parties rest their claim that the Order Under Appeal is a final order primarily on their position that the EAJ’s failure to recuse himself is a final determination of a substantive issue. In support of this submission, they seek to draw an analogy to their successful appeal of the EAJ’s order of June 5, 2020 in which the EAJ purported to assign Metatawabin RFD #2 to the WAJ in British Columbia. After rejecting Canada’s submission that this order was interlocutory, Simmons J.A. issued a stay pending appeal of that order and this court ultimately heard the appeal. Simmons J.A. acknowledged that it was not her role as a single judge of this court to determine whether the court had jurisdiction to entertain the appeal, but reasoned that the June 5, 2020 order was final because it “finally determines a substantive matter – the [moving parties’] entitlement to have [Metatawabin RFD #2] heard in the forum they say is prescribed by the CAP”: Fontaine Stay #2 , at para. 16. [46] In my view, the moving parties’ analogy to Fontaine Stay #2 is inapt. A panel of this court has already determined, in related proceedings, that a judge’s refusal to recuse themselves is an interlocutory matter: Brunning v. Fontaine , 2019 ONCA 98, 144 O.R. (3d) 410, at paras. 6-11; see also, Beaver v. Hill , 2019 ONCA 520, at paras. 14-15. These cases support my preliminary view that the EAJ’s failure to recuse himself from hearing Canada’s RFD is probably an interlocutory decision appealable only with leave to the Divisional Court. However, a preliminary assessment of whether jurisdiction is likely to arise from other aspects of the Order Under Appeal requires further analysis. Jurisdiction probably does not arise under the traditional Hendrickson test [47] This court recently affirmed in Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc. , 2020 ONCA 375, at para. 16, that the test in Hendrickson v. Kallio , [1932] O.R. 675 (C.A.), at p. 678, continues to govern in deciding whether an order is final or interlocutory. That test is as follows: The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined. [48] As Hendrickson teaches, the mere fact that the Order Under Appeal appears to have finally resolved the appointment of an ISA and the terms of the St. Anne’s Review does not make the order a final one. MacFarland J.A. confirmed this point in Waldman v. Thomson Reuters Canada Limited , 2015 ONCA 53, 330 O.A.C. 142, at para. 22, noting that if an order were deemed final simply because it disposed finally of whatever issue was before the court, “the distinction between interlocutory and final orders would cease to exist”. [49] The material question is whether the Order Under Appeal finally resolved the “real matter in dispute between the parties”, meaning “the very subject matter of the litigation”. The real matter in dispute between the parties is whether Canada breached the disclosure obligations it owes to St. Anne’s IRS claimants under the IAP. In my view, the Order Under Appeal does not resolve that dispute. At most, it provides a procedure for making future findings that may bear indirectly upon that dispute. I will explain. [50] The EAJ did not make any findings of fact relating to disclosure in the Order Under Appeal. Instead, he appointed the ISA as “a referee in accordance with Rule 54 of the Rules of Civil Procedure mutatis mutandis ” who “shall make a report that contains his or her findings, conclusions and recommendations.” [51] Of importance, any reported findings, conclusions, or recommendations of a referee under r. 54 have no legal effect unless the report is confirmed by the directing judge after a confirmation hearing on notice to the parties: rr. 54.07-54.08. Therefore, if the ISA’s ultimate findings do resolve substantive issues between the parties, those findings would not arise from the Order Under Appeal, but instead from the ISA’s report, which is not yet in existence and which may or may not be confirmed by the EAJ. [52] Moreover, pursuant to r. 54.05, the moving parties are entitled to challenge the progress of the ISA before he produces his report. Further, pursuant to rr. 54.07-54.08, they will be free to oppose any findings the ISA eventually makes before those findings have legal effect. [53] Not surprisingly, in Webb v. 3584747 Canada Inc. (2002), 161 O.A.C. 244, (Div. Ct.), a judge’s order appointing a referee pursuant to r. 54 to determine the claims of certain class members in a class action was characterized as “interlocutory”: at para. 1. [54] In light of the foregoing, I think that jurisdiction probably does not arise in this case under the traditional Hendrickson test. Jurisdiction probably does not arise even under a “modified approach” [55] For the sake of completeness, I will consider this court’s decision in Parsons v. Ontario , 2015 ONCA 158, 125 O.R. (3d) 168, rev’d on other grounds, 2016 SCC 42, [2016] 2 S.C.R. 162. In Parsons , at para. 44, LaForme J.A. (for the majority) took a “somewhat modified approach” in distinguishing between final and interlocutory orders within a national class action where the substantive merits and defences had already been determined by a judicially-approved settlement agreement. [56] Applying this “somewhat modified approach”, LaForme J.A. characterized as final an order determining that supervisory judges from different provinces could sit together to hear concurrent motions for a proposed protocol extending the first claims deadline in the settlement agreement. LaForme J.A. found that the “essential character” of the RFD leading to the order was akin to an application to interpret a statute or contract under r. 14.05(3)(d). By analogy, LaForme J.A. held that the order was therefore final rather than interlocutory. [57] Juriansz J.A. issued a strong dissent. He rejected the modified approach endorsed by LaForme J.A., saying it would be confusing. In Juriansz J.A.’s view, even where substantive rights have already been settled in a class action and no claims or defences remain to be tried, the traditional Hendrickson test should still be applied: Parsons , at para. 208. For Juriansz J.A., the real issue in dispute was whether the court should extend the deadline for filing first claims. He concluded that this issue was not finally resolved by determining the forum in which the court could hear the underlying motion. Therefore, according to Juriansz J.A., the order under appeal was interlocutory and this court did not have jurisdiction. [58] I need not resolve whether the approach taken by LaForme J.A. is appropriate because applying that approach would not alter my preliminary assessment of the Order Under Appeal. Of importance, in Parsons , at para. 53, LaForme J.A. cautioned that not all appeals from orders of supervisory judges under a national class action settlement agreement are final. The proper characterization will turn on the specific order under appeal. [59] In my view, even applying LaForme J.A.’s somewhat modified approach, the Order Under Appeal is probably interlocutory. Assuming, without deciding, that Canada’s RFD may be characterized as analogous to an application under r. 14.05, the Order Under Appeal is distinguishable from the order in Parsons in at least two material ways . [60] First, the Order Under Appeal did not determine the forum in which any substantive issues between Canada and the moving parties would be resolved. The substantive disclosure issues between the parties are being litigated in Metatawabin RFD #2 before Glustein J. The Order Under Appeal does nothing to prevent that litigation from continuing. [61] Second, the Order Under Appeal is based on r. 54, providing a statutory basis on which the moving parties may challenge the St. Anne’s Review as it progresses, and oppose the ISA’s substantive findings, conclusions, and recommendations at a future hearing before they take effect. [62] In my view, even using the somewhat modified approach that LaForme J.A. applied in Parsons , there is nothing about the Order Under Appeal that could support the conclusion that it is a final order. Conclusion on the seriousness of the issue to be determined on appeal [63] In my preliminary view, the Order Under Appeal is probably interlocutory. If I am correct, this would make the moving parties’ appeal filed in this court “meritless”: Henderson , at para. 8. Regardless of the substantive merits of the grounds of appeal advanced by the moving parties, this probable absence of jurisdiction undermines the seriousness of the issues to be determined. As such, I find that the first RJR-MacDonald factor militates against granting the stay. [64] However, even if I am wrong and the Order Under Appeal is final such that there are viable serious issues to be determined on appeal, this alone would not entitle the moving parties to a stay pending appeal. They must ultimately persuade me that a stay is in the interests of justice by showing they will suffer irreparable harm if a stay is not granted and that the balance of convenience weighs in their favour. [65] As I will explain, I am not persuaded that the remaining RJR-MacDonald factors favour granting the requested stay pending appeal. (2) Irreparable Harm [66] When framed properly, irreparable harm arguments should focus on the adverse effects that are likely to arise if the order under appeal is not stayed pending appeal: Ducharme v. Hudson , 2021 ONCA 151, at para. 20. Many of the moving parties’ irreparable harm arguments focused instead on allegations about the harm caused by the Order Under Appeal itself, including that it was obtained through an unfair process from a judge who did not properly enforce the Disclosure Orders. I will not consider those submissions further. [67] Only three of the submissions made before me relate to harm that could be caused by failing to stay the Order Under Appeal pending appeal: (i)      The St. Anne’s Review could produce results that are inconsistent with the ultimate resolution of Metatawabin RFD #2; (ii)      Access to justice will be denied to the St. Anne’s IRS IAP claimants potentially affected by Metatawabin RFD #2; and (iii)     The St. Anne’s Review will create duplicative costs. [68] I will address each submission in turn. (i) Inconsistent findings will not result from the Order Under Appeal [69] Without question, the risk of inconsistent findings or results from parallel proceedings can cause irreparable harm to parties and to the administration of justice: Fontaine v. Canada (Attorney General) , 2018 ONCA 832, at para. 15. [70] However, in my view, there is no realistic risk of inconsistent findings between Metatawabin RFD #2 and the Order Under Appeal. As I have explained, no findings were made in the Order Under Appeal relating to disclosure. The risk of inconsistent findings would arise, if at all, from the ISA’s report, which may or may not take legal effect if confirmed at some later date. In other words, at this stage, an assessment of whether inconsistent legal determinations might arise from the St. Anne’s Review would be purely speculative. [71] Indeed, there is no evidence before me indicating a realistic risk that the ISA himself could make findings that are inconsistent with those that may be made in Metatawabin RFD #2. Metatawabin RFD #2 is concerned with whether Canada breached the Disclosure Orders. Its focus is on the disclosure that has not been made , and whether Canada failed to revise POI Reports contrary to the Disclosure Orders after those Disclosure Orders were issued in 2014-2015. As revealed in the terms of the St. Anne’s Review set out at para. 10 of the Order Under Appeal, reproduced at para. 31 above, the ISA’s mandate is to consider whether the disclosure that has been made pursuant to the Disclosure Orders was available during IAP claim adjudications that occurred before the Disclosure Orders were issued in 2014-2015. (ii) Access to justice will not be denied to the St. Anne’s IRS IAP claimants [72] In the Assignment Order, the EAJ was assigned to decide Canada’s RFD requesting the appointment of an ISA. In support of their motion to stay the Assignment Order, the moving parties argued that unless that Order was stayed pending appeal, thereby preventing the EAJ from deciding Canada’s RFD, “access to justice for the 166+ St. Anne’s Claimants, in the [Metatawabin RFD #2] proceedings before Glustein J., will be denied”. [73] This irreparable harm argument is obviously linked to the moving parties’ contention in their Notice of Appeal #1 that Canada’s RFD was brought to frustrate the Metatawabin RFD #2 hearing that is currently underway before Glustein J. Assuming the moving parties rely on this argument in support of Motion #2, I do not accept it. [74] The Order Under Appeal does not purport to stay or adjourn the Metatawabin RFD #2 hearing, nor does it purport to direct anyone to discontinue those proceedings. Nor, for the reasons I have given, does the Order Under Appeal present a realistic risk of inconsistent findings that could compromise the ultimate decision on the merits in Metatawabin RFD #2. Finally, the Order Under Appeal does not appear to jeopardize any benefits that may be obtained by the moving parties in Metatawabin RFD #2. [75] To the contrary, the ISA’s mandate is to determine whether additional compensation should have been paid to certain St. Anne’s IRS IAP claimants. Although the Order Under Appeal does not provide a specific mechanism for rectifying underpayment, it is evident that the Order could lead to additional payments being made to certain St. Anne’s claimants.  It is difficult to characterize the possibility of additional compensation to claimants as irreparable harm. (iii) There is no risk of duplicative costs [76] Since the Order Under Appeal does not address the same issues as Metatawabin RFD #2, any costs that IAP claimants may incur in relation to the St. Anne’s Review would not be duplicative. Conclusion on irreparable harm [77] Accordingly, the moving parties have not satisfied me that irremediable harm will arise if the Order Under Appeal is not stayed. (3) The Balance of Convenience [78] I have identified no irreparable harm to the moving parties. Nor has any other harm been demonstrated that could support their view that the balance of convenience favours granting a stay pending appeal. [79] In contrast, in my view there is a risk of harm to Canada if a stay is ordered. The St. Anne’s Review would be delayed, postponing Canada’s ambition to reinforce public confidence in the IRSSA by obtaining a full and timely claims review. However, I am not persuaded that this risk is pressing because the unfairness concerns underlying the St. Anne’s Review are not apt to be answered until all related proceedings, including Metatawabin RFD #2 and the appeal in this matter, are concluded. [80] Suffice it to say that, in my view, the balance of convenience does not favour a stay pending appeal. (4) Conclusion on the Stay Motion [81] Given the probable jurisdictional issues I have identified, in my view there is no serious issue to be determined on appeal to this court. Even if there were, I have not found any irreparable harm if a stay pending appeal is not ordered, and the balance of convenience does not favour a stay. [82] Accordingly, I conclude it is not in the interests of justice to stay the Order Under Appeal. B.      A PRESERVATION ORDER IS NOT WARRANTED [83] The Order Under Appeal does not address the preservation of documents, nor does the Assignment Order. There is therefore no issue being appealed that relates directly to the preservation of documents. The moving parties nonetheless request that I make a preservation order. The scope of the relief sought is set out in a draft order filed with Motion #1. If granted, in addition to incidental relief, that order would require Canada to preserve the following: Every document … that [is] or [has] been in the possession of government officials, which document in any way pertains to St. Anne’s IAP claims adjudicated under the IRSSA and/or to Requests for Directions and/or civil actions related thereto, unless and until further Order of the Ontario Superior Court of Justice. [84] The moving parties cite no authority to support the preservation order they request. The Crown contends that I have no jurisdiction to make that order. I do not entirely agree. Section 134(2) of the CJA authorizes a single judge of this court to make “any interim order” considered just to prevent prejudice to a party pending appeal: Sub-Prime Mortgage Corporation v. Kaweesa , 2021 ONCA 215, at paras. 44-46. The moving parties are concerned with the prejudice that could arise if documents required to pursue re-opened IAP claims are destroyed before those claims are re-opened. The focus of their concern is a “sunset order” that was issued on May 29, 2020 permitting Canada to destroy documents in anticipation of the March 31, 2021 deadline for the IAP to cease operations (the “Sunset Order”). The documents were to be destroyed to protect the privacy of IAP claimants. [85] In response to a separate motion brought by the moving parties, on February 3, 2021 the WAJ varied the Sunset Order to require Canada to preserve documentation relating to St. Anne’s IRS IAP claims (the “Sunset Variation Order”). The moving parties contend that the Sunset Variation Order does not cover all the documents that may be relevant to St. Anne’s IRS IAP claims implicated in Metatawabin RFD #2. They argue that the preservation order they seek is urgently required to prevent the litigation related to this appeal from being undermined by the destruction of documents. [86] Although I do have jurisdiction to make the requested interim preservation order pursuant to CJA s. 134(2), in my view it is not in the interests of justice to do so. [87] First, I have concerns about judge shopping and duplicative proceedings. The moving parties have not appealed the WAJ’s Sunset Variation Order. On March 18, 2021, the moving parties amended Metatawabin RFD #2 to include a request for an order directing Canada not to destroy any IAP documents. Therefore, that issue is now before Glustein J. This reduces any potential urgency or risk of irreparable harm that may have militated in favour of granting the requested preservation order in the interests of justice. [88] Second, this requested relief engages complex issues relating to the risks associated with preserving highly confidential documents. I am not satisfied that all considerations that should bear on the preservation order sought by the moving parties were fully argued before me. [89] Third, I am not satisfied that the preservation order is necessary to prevent prejudice to the moving parties in the context of their appeal. On March 23, 2021, Canada advised that it would seek an order permitting it to preserve all St. Anne’s IRS documents pending the completion of the St. Anne’s Review if court counsel, Mr. Gover, instructed Canada to do so. Canada also undertook to preserve those documents from destruction “until the RFD is returned”. The next day, Mr. Gover advised the parties that Canada’s undertaking was “satisfactory to the Courts” and no formal order was necessary. Even though Canada’s RFD has already been returned and the Order Under Appeal has been rendered, counsel for Canada affirmed before me that Canada’s undertaking to the Ontario Superior Court of Justice was deemed sufficient for the purpose of preserving the documents pending the outcome of these matters. [90] It is therefore not in the interests of justice for me to make the interim preservation order requested by the moving parties. DISPOSITION [91] The motions for a stay pending appeal of the Order Under Appeal and for an interim preservation order are dismissed. [92] If Canada, the responding party, wishes to pursue a costs order, it may provide submissions in writing, not to exceed 3 pages, accompanied by a bill of costs within 10 court days of the receipt of this decision. The moving parties may respond and make costs submissions in writing, not to exceed 3 pages, accompanied by a bill of costs, within 5 court days of being served with Canada’s costs materials. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA 66 DATE: 20210129 DOCKET: C68407 Fairburn A.C.J.O., Rouleau and Miller JJ.A. BETWEEN Larry Philip Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee Plaintiffs (Appellants) and The Attorney General of Canada , The Presbyterian Church In Canada, The General Synod of the Anglican Church of Canada, The United Church of Canada, The Board of Home Missions of The United Church of Canada, The Women’s Missionary Society of The Presbyterian Church, The Baptist Church In Canada, Board of Home Missions and Social Services of the Presbyterian Church in Bay, The Canada Impact North Ministries of the Company for the Propagation of the Gospel in New England (also known as The New England Company), The Diocese of Saskatchewan, The Diocese of The Synod of Cariboo, The Foreign Mission of The Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of the Anglican Church of Canada, The Missionary Society of the Methodist Church of Canada (also known as The Methodist Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of The Anglican Church of the Diocese of Quebec, The Synod of The Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of The Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the Diocese of Qu’appelle, The Synod of the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in Canada, The Board of Home Missions and Social Service of the Presbyterian Church of Canada, The Women’s Missionary Society of the United Church of Canada, Sisters of Charity, a Body Corporate also known as Sisters of Charity of St. Vincent de Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre Dame-Auxiliatrice, Les Soeurs de St. Francois d’Assise, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de Jésus-Marie, Les Soeurs de l’Assomption de la Sainte Vierge, Les Soeurs de l’Assomption de la Saint Vierge de l’Alberta, Les Soeurs de la Charité de St.-Hyacinthe, Les Oeuvres Oblates de l’Ontario, Les Résidences Oblates du Québec, La Corporation Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Soeurs Grises du Manitoba Inc., La Corporation Episcopale Catholique Romaine de la Baie d’Hudson-The Roman Catholic Episcopal Corporation of Hudson’s Bay, Missionary Oblates-Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary Immaculate-St. Peter’s Province, The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of British Columbia, The Sisters of Charity of Providence of Western Canada, La Corporation Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiepiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface-The Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Episcopale Catholique Romaine de Prince Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA, Archdiocese of Vancouver-The Roman Catholic Archbishop of Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopale Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt. Angel Abbey Inc. Defendants ( Respondent ) Fay K. Brunning and Michael Swinwood, for the appellants Edmund Metatawabin, St. Anne’s IAP Claimant T-00185, St. Anne’s IAP Claimant S-20774, and St. Anne’s IAP Claimant S-16753 Catherine Coughlan and Brent Thompson, for the respondent Attorney General of Canada Stuart Wuttke, for the respondent Assembly First Nations David Schulze, for the respondent Independent Counsel Evatt Merchant, for the respondent Merchant Law Group Estée Garfin, for the intervener Attorney General of Ontario Heard: September 21, 2020 by video conference On appeal from the order of Justice Paul M. Perell of the Ontario Superior Court of Justice, dated June 5, 2020, with reasons reported at 2020 ONSC 3497. COSTS ENDORSEMENT [1] Four participants in this appeal seek nearly $190,000 in costs. The respondent, the Attorney General of Canada (“Canada”), has already agreed to pay $53,543.53 in costs to the appellants but opposes the costs requested by the three other participants, that is: the Assembly of First Nations’ request for $10,550; the Merchant Law Group’s request for $70,818.89; and the request of Independent Counsel for $54,542.50. These three additional participants seek costs on a full indemnity basis. [2] Canada maintains that, unlike the appellants, these three other participants were not directly impacted by the order under appeal and neither Independent Counsel nor the Merchant Law Group represents a discernible client interest. Further, Canada argues that the issue on appeal was a straightforward interpretative issue. The arguments of the three requesting parties’ submissions on the appeal were unnecessarily duplicative and were largely covered by the appellants. Therefore, Canada indicates that this is not an appropriate case to award costs to the three other participants. [3] The three requesting parties argue that costs should follow the result. They maintain that they raised arguments on which the court ultimately relied in allowing the appeal. They submit that the issues were complex and of national significance and the amounts they request are reasonable and proportionate in the circumstances. [4] In our view, it is appropriate that the three requesting parties be awarded costs. They were entitled to participate in support of the appellants and, in that sense, were successful parties on appeal. However, we consider the amount sought to be excessive in the circumstances. While the issues raised on the appeal were not simple, they were nonetheless straightforward issues of interpretation. [5] While we do not question the time each of the three additional participants devoted to this matter, it is clear to us that much of the work carried out by the requesting parties was duplicative of the work done by the appellants and by each other. We see little purpose in carrying out a line by line analysis of each of the bill of costs with a view to identifying and eliminating selected entries. [6] In our view, it is unreasonable to require Canada to reimburse each of the participants on a full indemnity basis for all of the time being claimed. We consider the amount sought by the Assembly of First Nations to be generally reasonable, and we award it $10,000 in costs. The amount sought by the Merchant Law Group is, however, excessive in the circumstances, and we award it $20,000 in costs. The amount sought by Independent Counsel is considerably less than the amount sought by the Merchant Law Group, but we nonetheless consider it excessive in the circumstances. We note that Independent Counsel participated and made submissions on the stay motion and, as a result, should be awarded an amount somewhat higher than the amount awarded to the Merchant Law Group. We therefore award Independent Counsel $27,000 in costs. [7] All amounts are inclusive of applicable taxes and disbursements. “Fairburn A.C.J.O.” “Paul Rouleau J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA 203 DATE: 20210401 DOCKET: C68080 Roberts, Jamal and Thorburn JJ.A. BETWEEN Larry Philip Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee Plaintiffs and The Attorney General of Canada , The Presbyterian Church In Canada, The General Synod of the Anglican Church of Canada, The United Church of Canada, The Board of Home Missions of the United Church of Canada, The Women’s Missionary Society of the Presbyterian Church, The Baptist Church in Canada, Board of Home Missions and Social Services of the Presbyterian Church in Bay, The Canada Impact North Ministries of the Company for the Propagation of the Gospel in New England (also known as The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of the Anglican Church of Canada, The Missionary Society of the Methodist Church of Canada (also known as the Methodist Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of the Anglican Church of the Diocese of Quebec, The Synod of the Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the Diocese of Qu’Appelle, The Synod of the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in Canada, The Board of Home Missions and Social Service of the Presbyterian Church of Canada, The Women’s Missionary Society of the United Church of Canada, Sisters of Charity, a Body Corporate also known as Sisters of Charity of St. Vincent de Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre Dame-Auxiliatrice, Les Soeurs de St. François d’Assise, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyacinthe, Les Soeurs de Jésus-Marie, Les Soeurs de l’Assomption de la Sainte Vierge, Les Soeurs de l’Assomption de la Sainte Vierge de l’Alberta, Les Soeurs de la Charité de St.-Hyacinthe, Les Oeuvres Oblates de l’Ontario, Les Résidences Oblates du Québec, La Corporation Épiscopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc. – Les Soeurs Grises du Manitoba Inc., La Corporation Épiscopale Catholique Romaine de la Baie d’Hudson –The Roman Catholic Episcopal Corporation of Hudson’s Bay, Missionary Oblates –Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary Immaculate – St. Peter’s Province, The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of British Columbia, The Sisters of Charity of Providence of Western Canada, La Corporation Épiscopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiépiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface – The Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Épiscopale Catholique Romaine de Prince Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA, Archdiocese of Vancouver – The Roman Catholic Archbishop of Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt. Angel Abbey Inc. Defendants ( Respondent ) Joanna Birenbaum, for the appellant National Centre for Truth and Reconciliation Catherine A. Coughlan and Brent Thompson, for the respondent Attorney General of Canada Stuart Wuttke and Jeremy Kolodziej, for the respondent Assembly of First Nations P. Jonathan Faulds, Q.C., for the respondent National Administration Committee Heard: October 29, 2020 by video conference On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated January 20, 2020, with reasons reported at 2020 ONSC 366. By the Court: A. Overview [1] This is an appeal by the National Centre for Truth and Reconciliation (“NCTR”) of the order regarding the disposition of proposed statistical reports and records arising out of the Indian Residential Schools Settlement Agreement (“IRSSA”) and the Independent Assessment Process (“IAP”). [2] This appeal is about competing privacy and archival interests involving the preservation and control of historical documents and data that relate to the intensely personal and confidential accounts of the survivors of the abuse that occurred at Canada’s Indian Residential Schools. It concerns the myriad administrative records and other materials arising out of the settlement and adjudication of the Indian Residential School survivor claims pursuant to the historic IRSSA. The national tragedy of the Indian Residential Schools is well documented. The documentation of these claims was essential to the successful operation of the IAP that was established under the IRSSA. This documentation also served to advance the integral purposes of truth and reconciliation through the creation of the NCTR, a unique Indigenous historical archive. [3] The IAP records and documents have been the subject of several court proceedings. This appeal concerns the disposition of certain documents and the use of data (“Records”) related to the administration of the IAP by the Indian Residential Schools Adjudication Secretariat (the “Secretariat”) under the direction of the Chief Adjudicator. These Records pertain to the operation, management, and oversight of the IAP. Through the IAP, thousands of Indian Residential School survivor claims were adjudicated and resolved pursuant to the IRSSA that was court-approved in late 2006 and early 2007. [4] The Chief Adjudicator brought a Request for Directions (“RFD”) before the Supervising Judge of the Ontario Superior Court of Justice (“Supervising Judge”) with respect to two classes of Records: (a) proposed statistical reports; and (b) Non-Claim Records. The Supervising Judge is tasked with administering the IRSSA in Ontario. In this RFD, the Chief Adjudicator proposed to generate new statistical reports, titled “Final Outcome Statistical Reports” and referred to as “Static Reports” (the “proposed Static Reports”), about the IAP using confidential claims data. If these proposed Static Reports were approved, the Chief Adjudicator intended to include them in his IAP Final Report. The Chief Adjudicator also sought permission to transfer the proposed Static Reports and some of the Non-Claim Records for archiving to the appellant, the NCTR, which is an emanation of the IRSSA and not a party to the IRSSA. [5] At issue before the Supervising Judge was the risk of disclosure of IAP confidential information, as well as the reliability and archival importance of some of the statistical data and administrative documents sought to be produced and archived. The Supervising Judge’s predominant concern was to preserve the confidentiality of all information and documentation related to the claims and identities of the Indian Residential School survivors. With respect to the proposed Static Reports, if they could be produced in a form that ensured confidentiality, reliability, and archival validity, they would no doubt be of historical and archival importance. [6] The Supervising Judge dismissed the Chief Adjudicator’s RFD and declined to fully implement his proposal, including the preparation of the proposed Static Reports. Instead, the Supervising Judge directed the respondent, the Attorney General of Canada (“Canada”), to submit a new proposal for the archiving of copies of the Non-Claim Records with the NCTR, subject to certain inclusions and exclusions. [7] The NCTR submits that the Supervising Judge erred in dismissing the Chief Adjudicator’s RFD. Canada maintains that the Supervising Judge made no error and that the appeal should be dismissed. [8] For the reasons that follow, we agree that the Supervising Judge erred in his treatment of the proposed Static Reports, and we therefore remit this issue for a rehearing before the Supervising Judge. We dismiss the appeal as it pertains to the Non-Claim Records. B. Issues [9] The NCTR alone appeals from the Supervising Judge’s order and raises the following issues: i. Can and should the proposed Static Reports be generated and archived with the NCTR? In particular, did the Supervising Judge err in concluding that the proposed Static Reports should not be generated or archived, and that the model proposed Static Reports should remain sealed, as they: (a) directly or indirectly contravene Canada (Attorney General) v. Fontaine , 2017 SCC 47, [2017] 2 S.C.R. 205 (“ Fontaine (SCC) ”), by possibly allowing the identities of claimants and their confidential information to be uncovered; (b) could be manipulated or spun to draw unreliable and contentious conclusions; and (c) do not appear to advance the goals of truth and reconciliation? ii. Did the Supervising Judge err in excluding from archiving at the NCTR the following Non-Claim Records: (a) the adjudicator performance records; (b) the non-public IAP Oversight Committee records; (c) the complaint and investigation records in respect of IAP claims; and (d) any records that risk disclosing IAP personal information, confidential information, or information subject to solicitor-client or litigation privilege? iii. Did the Supervising Judge err by permitting Canada to archive the excluded Non-Claim Records while prohibiting Canada from ever transferring these records to the NCTR? [10] The NCTR also requests a stay of the Supervising Judge’s order with respect to the proposed Static Reports in order to forestall the destruction of the Single Access to Dispute Resolution Enterprise (“SADRE”) database, which is used to case-manage IAP claims. [11] The SADRE database houses the IAP data from which the proposed Static Reports would be generated. Only authorized staff in Aboriginal Affairs and Northern Development Canada (now Crown-Indigenous Relations and Northern Affairs Canada) and Secretariat offices, and those who have approved remote access software, can access the SADRE database. Through the design of the SADRE database, some information is only accessible by the Secretariat and some information is only accessible by Crown-Indigenous Relations and Northern Affairs Canada. [12] On December 11, 2020, this panel granted an interim stay of the order and of the destruction of the SADRE database until the release of this decision. As indicated below, this stay is continued until the Supervising Judge disposes of the issue of the proposed Static Reports that we remit for a rehearing. [13] The Assembly of First Nations (“AFN”) and the National Administration Committee (“NAC”) support the position taken by the NCTR regarding the proposed Static Reports. However, they take no position regarding the Non-Claim Records. [14] Canada submits the appeal should be dismissed in its entirety. Its overarching submission is that the NCTR has no contractual right or legal entitlement to demand production of these documents. [15] The Chief Adjudicator did not commence an appeal, nor did he appear on the hearing of the NCTR’s appeal, despite being granted 15 minutes for oral argument by Pepall J.A.: Fontaine v. Canada (Attorney General) , 2020 ONCA 540, at para. 17. In a subsequent letter addressed to this panel, dated September 15, 2020, the Chief Adjudicator determined that his participation in this appeal was not necessary, as the Supervising Judge “exercised his jurisdiction over the Non-Claim Records arising from the administration of the IRSSA by shaping the scope of a donation to the NCTR through balancing the personal privacy concerns with the public interest in preserving the records.” Further, the Chief Adjudicator determined that it was best he did not participate in the appeal, “ [g]iven past concerns about the participation of the Chief Adjudicator in appellate proceedings”. The proposed Static Reports were not mentioned in this letter. While the Chief Adjudicator’s absence does not preclude our determination of this appeal, on the rehearing, the Supervising Judge will need to determine the Chief Adjudicator’s current position regarding the proposed Static Reports. C. Admission of Fresh Evidence [16] Canada seeks to adduce fresh evidence on this appeal: the October 20, 2020 affidavit of Patricia Long, a paralegal with the Department of Justice Canada, that sets out the history of the appeal; and Canada’s responding compendium containing Canada’s materials filed in response to the NCTR’s stay motion before Pepall J.A., including the August 13, 2020 affidavit of Ms. Long, affidavits filed in relation to the RFD that culminated in Fontaine (SCC) , and the IRSSA itself. [17] The NCTR primarily objects to the admission of Ms. Long’s August 13, 2020 affidavit, which includes information that, as of that date, through the IAP notice plan that began in 2018, 33 IAP claimants have authorized the Chief Adjudicator to deliver their IAP documents to the NCTR. The NCTR submits that this information is unhelpful and leads to evidentiary questions that the NCTR could have addressed if this had been raised before the Supervising Judge. In any event, the NCTR notes that IAP claimants have until September 2027 to make a decision about archiving their records. [18] We admit the materials proffered by Canada. In our view, the statistical information meets the criteria for admission: it was not available before the Supervising Judge; and it is relevant and necessary to “deal fairly with the issues on appeal”, as this information completes the contextual background for this appeal: Sengmueller v. Sengmueller (1994), 111 D.L.R. (4th) 19 (Ont. C.A.), at pp. 22-23. D. Contextual Background [19] As an organizing framework for our analysis, we briefly set out the context in which the documents and data in issue were created and how the question of their disposition came before the Supervising Judge for consideration. (1) Overview of the IRSSA and the IAP [20] All the documents and data were created pursuant to the implementation and administration of the IRSSA. The IRSSA settled the class actions and civil claims of the approximate 79,000 survivor claimants who suffered abuse while residents of the Indian Residential Schools in Canada and who were living as of May 30, 2005: Baxter v. Canada (Attorney General) (2006), 83 O.R. (3d) 481 (S.C.), at para. 4; Fontaine v. Canada (Attorney General) , 2020 ONCA 688, at para. 6. [21] Between the 1860s and 1990s, more than 150,000 Indigenous children were placed in the Indian Residential Schools funded by Canada and operated by various religious organizations. Here, the children suffered the appalling abuse that gave rise to the IRSSA. The IRSSA represents the culmination of negotiations to address the historical and ongoing damaging legacy of Canada’s Indian Residential Schools system. Notably, the Preamble to the IRSSA provides that its goals are to achieve a “fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools” through the “promotion of healing, education, truth and reconciliation and commemoration”. [22] Between December 2006 and January 2007, nine courts across Canada (the “supervising courts”) approved the IRSSA and issued substantially identical Approval Orders. In March 2007, the supervising courts also issued identical Implementation Orders. As set out by the Supervising Judge, at para. 13 of his reasons, the judgments and orders of the supervising courts provide that the supervising courts “shall supervise the implementation of the IRSSA and that the [supervising courts] may issue such orders as are necessary to implement and enforce the provisions of the agreement and the judgment.” [23] The IRSSA effectively combines all the outstanding litigation into one class action. Over 38,000 claims have been processed and resolved, and over $3 billion has been disbursed to IAP claimants. The IRSSA provides for financial compensation to the survivors of the Indian Residential Schools, and it addresses the need for the archiving of documents to advance truth-telling and reconciliation and recognize the state’s duty to remember, all the while safeguarding the privacy interests of the individuals who participated in the process. [24] The IRSSA recognizes that compensation for the survivors of abuse through the IAP process is insufficient to fulfill its goals of truth and reconciliation. As the AFN indicated in its November 2004 report entitled “Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools”, truth-telling, healing, and public education are also required. The AFN’s recommendation for the creation of a truth commission to advance these purposes was incorporated into the IRSSA. [25] Article 7.01 and Schedule N of the IRSSA establish the Truth and Reconciliation Commission (“TRC”), which was tasked with creating a historical record of the Indian Residential School system and ensuring that its legacy is preserved and made accessible to the public for future study: Fontaine (SCC) , at para. 11. Schedule N also provides for the creation of a National Research Centre, later the NCTR, to archive and store the records collected by the TRC: Fontaine (SCC) , at para. 11. Schedule N also allows, but does not require, the transfer of IAP information to the TRC, and therefore to the NCTR, for research and archiving purposes. [26] In keeping with the purposes of truth and reconciliation, pursuant to Schedule D of the IRSSA, the IAP was created as a means for claimants to seek financial compensation for the serious physical and sexual abuse that they suffered at Indian Residential Schools. In the fabric of this court process, Canada has both an administrative role in allocating the settlement funds and an adversarial role in challenging IAP claims: Baxter , at paras. 36-38. [27] Given the enormously sensitive and private nature of the information that is disclosed during the IAP, there was a high premium placed on confidentiality by the participants. But for the promise of “absolute confidentiality”, claimants, alleged perpetrators, and church representatives would not likely have participated: Fontaine (SCC) , at paras. 42-47. [28] The Secretariat manages the IAP under the direction of the Chief Adjudicator. The Chief Adjudicator, who has been in the role of supervising the IAP since 2013, is certainly well placed to make recommendations concerning records and reports pertaining to the IAP. As directed by Schedule D of the IRSSA, one of the Chief Adjudicator’s duties is to “ [p] repare annual reports to the Oversight Committee on the functioning of the adjudicative process under this IAP.” This IAP Oversight Committee supervises the administrative aspects of the IAP. In addition, the Implementation Orders for the IRSSA indicate a further reporting obligation for the Chief Adjudicator, as he must report directly to the supervising courts of the IRSSA “not less than quarterly on all aspects of the implementation and operation of the IAP.” [29] The IRSSA does not expressly address the issue of the production of the proposed Static Reports nor the disposition of the Non-Claim Records. However, the establishment of the TRC, its goal to create as complete a historical record as possible, and the creation of the NCTR to fulfill the TRC’s mandate, support the idea that the IRSSA allows for the production of historically important and reliable materials and documents where no risk of disclosure of confidential information exists. (2) The Chief Adjudicator’s RFD and Fontaine (SCC) [30] In anticipation of the projected completion of IAP adjudication work by December 2020 and the projected administrative closeout of the Secretariat by March 31, 2021, the Chief Adjudicator has sought the direction of the Supervising Judge concerning the appropriate disposition of all the Records pertaining to the IAP. [31] The disposition of the IAP documents related to the claims advanced by Indian Residential School survivors (the “Claim Records”) was the subject of an earlier RFD that culminated in the Supreme Court of Canada’s decision in Fontaine (SCC) . Here, the Supreme Court upheld the Supervising Judge’s decision that all Claim Records must be destroyed following a 15-year retention period to protect the privacy and confidentiality rights of the claimants. During this period, individual IAP claimants may elect to have their own Claim Records preserved and archived through a notice program administered by the Chief Adjudicator. According to the fresh evidence filed by Canada, as of August 13, 2020, only 33 claimants have so far elected to transfer their own Claim Records to the NCTR. [32] In Fontaine (SCC) , the Supreme Court resolved “[t]he tension between th [ e] mandate of commemoration and memorialization, and the privacy which IAP claimants were promised”: at para. 11. The Supreme Court confirmed the primacy of the IAP claimants’ entitlement to privacy and the need to respect their choice to share (or not share) their sensitive and personal stories. As the Supreme Court observed at para. 59, “It is not for this Court to conscript the stories of survivors, where confidentiality and solely voluntary disclosure had been agreed to.” [33] The Chief Adjudicator sought directions regarding his proposal to produce and archive the proposed Static Reports. With respect to the Non-Claim Records, the Chief Adjudicator made a proposal and sought directions regarding their disposition and archiving at the NCTR. [34] With respect to the proposed Static Reports, importantly, the Secretariat had already prepared statistical reports using the SADRE database (“existing statistical reports”), which have been disseminated to the IAP Oversight Committee and the supervising courts through the Chief Adjudicator’s annual and quarterly reports. Some of these existing statistical reports have been published on the Secretariat’s website and therefore made available to the public. According to the October 25, 2019 affidavit of Nicole Hansen, the Acting Manager of the Business Process Management and Reporting Unit of the Secretariat and Supervisor of Statistical Operations, at para. 24, the rationale behind the production of the proposed Static Reports is that “statistical data from the IAP can contribute to understanding the scale and scope of abuse at residential schools by future historians, as well as contributing to understanding the IAP claims process itself.” [35] According to Ms. Hansen, the proposed Static Reports were intended to be a final set of statistical reports to provide an overview of the IAP claimant population and the claims process. The Chief Adjudicator proposed that they be appended to his IAP Final Report and also archived at the NCTR. Model proposed Static Reports were produced under seal for the Supervising Judge’s review, attached as Exhibit “K” to Ms. Hansen’s affidavit. [36] The initial generation of the proposed Static Reports was undertaken in consultation with the lAP Oversight Committee. As indicated at paras. 25-26 of Ms. Hansen’s affidavit, “Sample Final Static Reports [were] provided to the lAP Oversight Committee and modifications [were] made based on feedback received from committee members.” In fact, the variables to be cross-tabulated and presented in the proposed Static Reports “were selected based on consideration of what might be of interest to residential school survivors, historical researchers, and the public.” [37] A very high-level summary of the nature of these proposed Static Reports is contained at para. 39(g) of the Supervising Judge’s reasons. In describing the major details of the Chief Adjudicator’s proposal, the Supervising Judge explained that the proposed Static Reports would cross-tabulate specific variables in the SADRE database and be accompanied by a glossary of terms. For example, the proposed Static Reports would aggregate information about lAP claimant profiles based on variables such as age, sex, and acts of abuse by province. [38] At para. 30 of her affidavit, Ms. Hansen provided a general list of the categories of information to be contained in the proposed Static Reports: (i) General statistical information about the lAP; (ii) Overview of IAP claims; (iii) lAP process timelines; (iv) Claim compensation statistics; (v) lAP claimant profile; (vi) Claim compensation statistics by religious affiliation of [Indian Residential Schools]; and (vii) Claim statistics for individual [Indian Residential Schools]. [39] Ms. Hansen deposed that the Secretariat uses various techniques to protect individual privacy and confidentiality, including data generalization and data suppression, when producing statistical reports. Using these techniques, the model proposed Static Reports attached as Exhibit “K” to Ms. Hansen’s affidavit were generated at the national, provincial, and territorial level. For the proposed Static Reports, as stated at para. 28 of Ms. Hansen’s affidavit, the age of claimants will be aggregated in 10-year bands, with outliers of very young or very old claimants further aggregated. Lastly, Ms. Hansen indicated at para. 27 that where fewer than 20 adjudicator decisions were made in respect of an individual Indian Residential School, the data will be aggregated and summarized in an “other schools” category. [40] Despite this study of the techniques to be used, the parties proffered no expert or other evidence concerning the level of data generalization or data suppression that would be necessary to ensure confidentiality and the reliability and archival soundness of the proposed Static Reports, nor was there any evidence before the Supervising Judge that any particular table contained in the model proposed Static Reports attached as Exhibit “K” to Ms. Hansen’s affidavit identified or risked identifying lAP claimants or anyone else. (3) The Supervising Judge’s Decision [41] The Supervising Judge determined that the proposed Static Reports should not be generated or included in the Chief Adjudicator’s IAP Final Report or archived at the NCTR. He concluded that the proposed Static Reports might reveal, through deductive reasoning, the identity of IAP claimants, which would contravene the prior order in Fontaine (SCC) . The Supervising Judge also held that there was a danger the data could be manipulated or spun to draw unreliable and contentious conclusions, and in his view, some of the data would not necessarily advance truth and reconciliation. [42] The Supervising Judge held that with respect to the Non-Claim Records, the normal regime for the disposition of government documents should not be disturbed. Therefore, Canada, not the Chief Adjudicator, should submit a new RFD for the disposition and archiving of copies of the Non-Claim Records with the NCTR, subject to the Supervising Judge’s directions concerning the inclusion and exclusion of certain documents in the Non-Claim Records collection. In particular, he excluded from the Non-Claim Records collection the adjudicator performance records, the non-public IAP Oversight Committee records, and the complaint and investigation records, on the basis that they reveal confidential, sensitive, and privileged information. He also generally excluded the archival of records where there was any risk that they could reveal IAP personal information, confidential information, or information subject to solicitor-client or litigation privilege. E. ANALYSIS (1) Standard of Review [43] At its core, this appeal involves the Supervising Judge’s treatment of the proposed Static Reports and the Non-Claim Records based on his review of the evidentiary record before him. Notably, in dismissing the Chief Adjudicator’s RFD, the Supervising Judge reviewed the model proposed Static Reports and other key pieces of evidence pertaining to the Non-Claim Records to arrive at his conclusions. Therefore, his conclusions involved the “interpretation of the evidence as a whole”: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36; Amertek Inc. v. Canadian Commercial Corp. (2005), 76 O.R. (3d) 241 (C.A.), at para. 68, leave to appeal refused, [2005] S.C.C.A. No. 439. [44] Such an interpretation of evidence involves factual or inferential determinations, which are entitled to deference and should not be overturned by an appellate court, except where there is a palpable and overriding error or one of its “functional equivalents”, which includes a decision that is “not reasonably supported by the evidence”: see H.L. v. Canada (Attorney General) , 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110; MacDougall v. MacDougall (2005), 205 O.A.C. 216 (C.A.), at para. 31. [45] Moreover, by virtue of his appointment , the Supervising Judge has wide supervisory jurisdiction and discretion under the IRSSA, class action legislation, and his inherent jurisdiction as a superior court justice, to implement and administer the IRSSA and make directions regarding the disposition of the IAP documents: Fontaine (SCC) , at paras. 31-33. Having served as Eastern Administrative Judge since 2013, the Supervising Judge is certainly well-versed in the history of the IRSSA and the importance of the IAP documents. [46] However, as we will explain below, the Supervising Judge’s conclusion, at para. 225 of his reasons, that producing and archiving the proposed Static Reports “puts far too much at risk, for too little gain” was “not reasonably supported by the evidence”: H.L. , at para. 110 . Appellate intervention is therefore warranted to remit this issue for a rehearing before the Supervising Judge. [47] We reach a different conclusion with respect to the Supervising Judge’s dismissal of the Chief Adjudicator’s proposal for the Non-Claim Records. For the reasons set out below, we see no error with his determination of this issue. (2) The Proposed Static Reports (a) Positions on Appeal [48] The NCTR, the AFN, and the NAC submit that the Supervising Judge erred in failing to order the generation of the proposed Static Reports. They say there is no evidence to support the Supervising Judge’s conclusions that the proposed Static Reports could reveal confidential information, were subject to manipulation and could be spun to drawn unreliable and contentious conclusions and would not advance truth and reconciliation. [49] Canada opposes the preparation of the proposed Static Reports on the grounds that the IRSSA makes no reference to their generation and the NCTR does not possess a contractual or legal right to require their production. Canada submits there is no basis to intervene with the Supervising Judge’s determination that the proposed Static Reports would contravene the order in Fontaine (SCC) , nor his conclusions concerning the issues of reliability and utility. (b) Discussion [50] The issue is whether the Supervising Judge should have ordered that the proposed Static Reports be produced by the Chief Adjudicator and archived at the NCTR. In his reasons, the Supervising Judge outlined three key concerns: whether the confidentiality of IAP claimants could be maintained; whether the information could be manipulated or spun to draw unreliable and contentious conclusions; and whether the production of the proposed Static Reports would advance the goals of truth and reconciliation. [51] The parties adduced no evidence that the Supervising Judge was prepared to accept in relation to these questions, nor did the Supervising Judge request further evidence to address his concerns. [52] Given the Supervising judge’s concerns, he could and should have requested further information from the parties to enable him to properly assess his concerns. He erred by dismissing the request for the production of the proposed Static Reports and the archiving of the proposed Static Reports at the NCTR in the absence of an evidentiary foundation that permitted him to make any determination on these issues. [53] In his reasons, the Supervising Judge acknowledged the historical significance of both the Claim Records and the Non-Claim Records. He also recognized the historical significance of the existing statistical reports that were founded on data from the SADRE database, as evidenced by the fact that he ordered that they be included in the Non-Claim Records collection to be archived at the NCTR. [54] While the confidentiality, reliability, and archival validity of the form and contents of the proposed Static Reports were disputed, the historical and archival importance of the information to be contained in the proposed Static Reports was not in issue. The unchallenged June 9, 2018 expert affidavit of Dr. Trudy Huskamp Peterson, a Certified Archivist of the Academy of Certified Archivists, confirmed, at para. 10, that “a very broad approach to preserving records of transitional justice and human rights mechanisms or institutions is prudent, appropriate, and in keeping with internationally accepted archiving principles and standards.” [55] Given the historical significance of the information to be gleaned from the SADRE database that is slated for destruction, it was incumbent on the Supervising Judge to adjudicate this issue on an adequate record. He erred by rendering a decision that was “not reasonably supported by the evidence”: H.L. , at para. 110 . [56] As a result, we remit the issue of the proposed Static Reports to the Supervising Judge for determination in accordance with these reasons and the directions that we shall outline at the conclusion of our analysis. [57] As we are remitting the issue of the proposed Static Reports to the Supervising Judge, it is important that we delineate in our analysis the facets of the Supervising Judge’s analytical approach that are not in dispute or in error, and those that require correction and further direction for the purpose of the rehearing. (i) The Unchallenged Aspects of the Supervising Judge’s Approach [58] We start our analysis with the issues that are not in dispute on appeal. [59] First, the proposed Static Reports are meant to contain aggregated statistical data about IAP claimants that would serve to provide a better understanding of the claims process and the scale and scope of abuse at the Indian Residential Schools. As such, as long as the confidentiality of the IAP data is preserved, the IRSSA does not explicitly preclude the generation of the proposed Static Reports. [60] Second, there is nothing in the IRSSA to circumscribe the Chief Adjudicator’s exercise of his discretion in fulfilling his responsibility to report on the process and explain the findings of the IAP, except for the overarching concerns of maintaining the privacy of the individuals involved in the IAP and of advancing the goals of truth and reconciliation. [61] Third, concerns about the disclosure of the proposed Static Reports must be remitted to the Supervising Judge. The Supervising Judge has the power to direct the handling of the IAP documents: Fontaine (SCC) , at para. 31. This includes determining whether the proposed Static Reports should be generated and archived. No party or non-party may unilaterally direct the production of any IAP document, including the proposed Static Reports. Approval of any such production must be sought from the Supervising Judge. [62] Fourth, the Supervising Judge is required to protect the confidentiality of the IAP claimants’ private information. There is no dispute that if there were a risk that the proposed Static Reports revealed confidential claimant data, they should not be produced, as this would violate the order in Fontaine (SCC) . Given that the information in the proposed Static Reports would be based on the confidential information contained in the SADRE database, protection of the IAP claimants’ rights to confidentiality must be maintained. Following Fontaine (SCC) , the safeguarding of the IAP claimants’ privacy rights properly served as the main lens through which the Supervising Judge assessed the Chief Adjudicator’s proposal regarding the proposed Static Reports. [63] Fifth, no issue is taken with the principles the Supervising Judge used to consider the reliability and archival utility of the proposed Static Reports. His reasons demonstrate that he was attuned to the four foundational principles for archives espoused by Dr. Peterson: authenticity; reliability; integrity; and usability. [64] Sixth, there was no dispute that, like the existing statistical reports, the production of the proposed Static Reports could be of historical and archival significance, provided they are generated in a form that protects the claimants’ rights to the confidentiality of their IAP information, and that the data are produced in a reliable manner that is consistent with the principles of archival validity and utility. [65] Indeed, the Supervising Judge’s approval of the existing statistical reports is unchallenged on appeal. As the Supervising Judge recognized by his inclusion of the existing statistical reports in the Non-Claim Records collection to be archived at the NCTR, the production of statistical reports may be of historical and archival significance, so long as these reports do not reveal IAP confidential data. In fact, the Supervising Judge, at para. 214 of his reasons, determined that the existing statistical reports do not violate the order in Fontaine (SCC) , as “they are aggregate or collective information that does not identify individual claimants.” [66] At para. 215 of his reasons, the Supervising Judge rejected Canada’s argument that the existing statistical reports revealed IAP confidential data because they “are more about the nature of the IAP claims in general and the aspects of the IAP that were engaged than they are about the characteristics or identities of the Claimants in particular.” He was further satisfied, at para. 222 of his reasons, that the existing statistical reports “ha [ d] variables that in the aggregate do not reveal information that would be offensive to individuals or to the collective” because they “report on the Secretariat’s administration and processing of claims, rather than on what the claims process reveals about the history of particular residential schools”. (ii) The Disputed Elements of the Supervising Judge’s Approach [67] The NCTR argues that the Supervising Judge erred in his approach because his concerns about the proposed Static Reports are not supported by evidence. Canada disagrees with the NCTR’s position. [68] The core of the Supervising Judge’s reasons regarding the proposed Static Reports is contained at paras. 220-25, excerpted here: [H] aving examined the model Static Reports, I observe that depending on what specific variables are selected, it might be possible by deductive reasoning to disclose the identities of IAP Claimants and this would arguably contravene the Orders made in [ Fontaine (SCC) ]. [D]epending on school size and temporal information, and variables based on age, sex, and acts of abuse by province, it might be possible to deduce confidential personal information from some of the proposed Static Reports . I am especially concerned that this may be possible in the case of some small and remote communities, leading to very unfortunate consequences. Information about how many claims were made and how many were resolved is statistical information that cannot be manipulated or spun to draw unreliable and contentious conclusions. However, the same cannot be said about some of the proposed Static Reports, where, for instance, unreliable and contentious conclusions might be drawn about acts of student-on-student abuse at particular schools . I have reviewed some models of Static Reports and the reliability and soundness of the models is doubtful without more information from historians, archivists, sociologists, and perhaps other social scientists with some expertise in statistical analysis about the proper and appropriate use of this statistical evidence[ .] Lies as much as truths can be told by the manipulation of data. There is some considerable truth in the progressive maxim “lies, damned lies, and statistics,” and care needs to be taken in making a statistical analysis that support[s] observations and conclusions that are debatable and contentious. A deeper understanding of the SADRE database might belie any conclusions to be drawn from Static Reports . [I] do not see how truth and reconciliation will be advanced by reports identifying which school was the worst of the worst or ranking schools in the order of which school had more student-on-student sexual assaults than staff sexual assaults, etc. [Emphasis added.] [69] As the emphasized excerpts demonstrate, the Supervising Judge expressed considerable concern about the inadequacy of the evidentiary record and raised questions that he concluded could not be answered. We agree with the NCTR’s submission that the Supervising Judge erred by dismissing the RFD without any adequate evidentiary foundation. (iii) The Inadequacy of the Evidentiary Record [70] With respect to the evidentiary record before him, it was open to the Supervising Judge to raise the issues he did concerning the absence of expert and other evidence that he believed precluded him from assessing the reliability and soundness of the proposed Static Reports. [71] The Chief Adjudicator was alive to these issues. As we earlier noted, the lay affidavits before the Supervising Judge provided a summary of the possible methodologies that could be employed to anonymize data, such as data generalization and data suppression, and there was general, uncontroversial evidence about archival science and internationally accepted archiving principles. [72] However, there was no expert or other evidence concerning the level of data generalization or data suppression that would be necessary to ensure confidentiality and the reliability and soundness of the proposed Static Reports. Notably, Dr. Peterson was not asked to provide an opinion on the generation of statistical information, which includes the proposed Static Reports. [73] It is uncontroversial that the risk of disclosure of confidential information increases commensurate with the greater level of detail provided. As Professor David H. Flaherty noted at para. 74 of his May 2, 2014 affidavit, filed as expert evidence in support of the earlier RFD about the Claim Records, while in theory anonymization by redaction is possible, “ [i] n practice, there is now a rich literature on how enormously difficult it is to try to anonymize personal information – and that the risks of re-identification are very high.” [74] Further, there was no conclusive evidence as to what form the proposed Static Reports would definitively and ultimately take. The Supervising Judge was provided with models of proposed Static Reports, attached as sealed Exhibit “K” to Ms. Hansen’s affidavit. However, it was by no means certain that these models would be the final form of all the proposed Static Reports to be generated. As Ms. Hansen noted at para. 15 of her affidavit, “Statistical Reports can take many forms, depending on the available data, the purpose for which the reports will be used, and the audience.” Notably, prior proposed Static Reports were modified based on feedback from the IAP Oversight Committee members, which include an independent chair and eight other members: two former Indian Residential School students; two class counsel representatives; two church representatives; and two representatives for Canada. Also, when explaining the form of the model proposed Static Reports, Ms. Hansen used the words “ [a]t present”, at para. 30 of her affidavit. Such language leads to the assumption that the model proposed Static Reports are not in final form, as the form itself may be modified in the future. (iv) The Supervising Judge’s Errors [75] Having identified his concerns that there was a lack of expert and other evidence, the Supervising Judge erred by concluding, at paras. 220 and 225 of his reasons, that the proposed Static Reports “would arguably contravene the Orders made in [ Fontaine (SCC) ] ” and that “generating and archiving the Static Reports puts far too much at risk, for too little gain”, as these conclusions were “not reasonably supported by the evidence”: H.L. , at para. 110 . Other than the Supervising Judge’s personal examination of the model proposed Static Reports, the Supervising Judge did not refer to any evidence to justify these conclusions, and the defects in the evidentiary record that he identified did not permit him to reach those determinations. [76] First, there was no evidence before the Supervising Judge in support of his belief, advanced at para. 221 of his reasons, that “it might be possible to deduce confidential personal information from some of the proposed Static Reports.” Nor has Canada submitted any concrete privacy or confidentiality concerns about specific identifiable information. [77] While Professor Flaherty outlined in his affidavit the difficulty in anonymizing data, he did not state that it cannot be done. Indeed, the existing statistical reports demonstrate that it can be done. As already noted, the existing statistical reports contain aggregated data taken from the SADRE database. The Supervising Judge expressed no concerns about the confidentiality, reliability, or utility of those reports. Moreover, he ordered that they be included in the Non-Claim Records collection to be archived at the NCTR. During oral submissions, Canada conceded that the existing statistical reports are examples of reports where data were harvested from the SADRE database and presented “at a very high-level”, in a way that does not reveal confidential information. [78] According to the October 11, 2019 affidavit of Roger Tetreault, the Executive Director of the Secretariat, at para. 51, the existing statistical reports, which are derived from the same database to be used to produce the proposed Static Reports, “are produced in accordance with statistical principles which involve the aggregation of data in ways that allow for meaningful analysis without identifying individuals.” The goal is to ensure that the proposed Static Reports do not contain personal information that could identify a claimant, alleged perpetrator, or any other affected individual. [79] In her affidavit, Ms. Hansen explained the various methodologies that were used throughout the IAP process to ensure the confidentiality of claimants and other participants in the IAP when producing statistical reports: s tatistical aggregation of data; data generalization; and data suppression. [80] The same statistical principles and methodologies employed to ensure the confidentiality, reliability, and utility of the existing statistical reports would presumably be used in the creation of the proposed Static Reports. The proposed Static Reports are statistical reports and, as Mr. Tetreault and Ms. Hansen indicate in their respective affidavits, statistical reports are produced in accordance with these statistical principles and methodologies. [81] Second, there was no evidence in support of the Supervising Judge’s conclusion that the data in the proposed Static Reports could or would be manipulated. Specifically, the Supervising Judge’s reasons reference no evidence in relation to his statements at para. 223 that the reliability and soundness of “some models” that he reviewed was doubtful and that unreliable and contentious conclusions might be drawn regarding acts of student-on-student abuse at particular schools. [82] Third, there was no evidence that the production of the proposed Static Reports would impair the goals of truth and reconciliation. On the contrary, as the Supervising Judge acknowledged by the inclusion of the existing statistical reports in the Non-Claim Records collection, the data within statistical reports are of historical importance. Notably, these data no doubt hold important information on how widespread the physical and sexual abuse was in the Indian Residential Schools. If confidentiality and reliability are ensured, the proposed Static Reports will be available to advance truth and reconciliation by presenting and preserving data about the history, impact, and legacy of Canada’s Indian Residential Schools. In this way, the proposed Static Reports would further the objectives of the IRSSA. (v) Conclusion [83] The Supervising Judge’s concerns about the need to ensure the confidentiality, reliability, and archival utility of the proposed Static Reports, and his concern regarding the lack of sufficient evidence, are valid concerns. However, there was no evidence before the Supervising Judge to substantiate those concerns. [84] Having identified his concerns pertaining to confidentiality, reliability, and archival utility, the Supervising Judge should have required further evidence be adduced. [85] In our view, one of the principal obstacles faced by the parties and the Supervising Judge is that no proposed Static Reports were generated. Only model proposed Static Reports were provided to the Supervising Judge. Without generating the proposed Static Reports in their final form, it is difficult if not impossible to determine whether the proposed Static Reports should be produced and archived. Generation of the proposed Static Reports will allow the parties to respond to the Supervising Judge’s concerns, articulate any specific objections, and substantiate those objections with reference to specific areas of issue in the proposed Static Reports. [86] Accordingly, we order that any proposed Static Reports be produced in final form by the Chief Adjudicator, placed under seal, and submitted to the Supervising Judge prior to the rehearing. If the Chief Adjudicator is unable to produce the proposed Static Reports prior to the closure of the Secretariat, the parties may seek direction from this court. [87] For clarity, the proposed Static Reports could include those already produced in Exhibit “K” to Ms. Hansen’s affidavit if those reports are, in fact, in final form. The Supervising Judge will then determine how the proposed Static Reports will be produced under seal, prior to the rehearing, to the parties and their experts for the purposes of the rehearing. Production of these proposed Static Reports under seal will allow the parties the opportunity to review the proposed Static Reports in their final form, and adduce further evidence to properly address, or make submissions concerning, the risk of disclosure of confidential IAP information, their reliability, and their archival validity. [88] Until the Supervising Judge has determined the issue of the proposed Static Reports, we order a stay of the order and of the destruction of the SADRE database from which the proposed Static Reports are intended to be produced. (3) The Non- Claim Records [89] The NCTR submits that the Supervising Judge ignored Canada’s duty under the IRSSA to remember and to preserve records of enduring historical value and prioritized the privacy of state actors over the rights of Indigenous peoples, and the public interest in general, to the preservation of these records. [90] In our view, these submissions have no merit and can be dealt with summarily. [91] While the NCTR is an appropriate archive, it has no legal or contractual right to demand the transfer of any documents. As Canada argues, the IRSSA gives the NCTR no such authority. In fact, the IRSSA is otherwise silent regarding the disposition of the Non-Claim Records. [92] Further, the Supervising Judge expressly referenced and acknowledged, at paras. 127-31 of his reasons, the historical and archival importance of the Non-Claim Records, including those pertaining to the administration and workings of the Chief Adjudicator, the IAP Oversight Committee, and the Secretariat. As he stated at para. 193 of his reasons: The Claim Records and the Non-Claim Records are both important parts of creating a comprehensive historical record and of fulfilling Canada’s duty to compile a comprehensive and accessible record based on human rights principles that, in turn, respond to a right to justice, a personal and collective right to know, and the state’s duty to remember. [93] The Supervising Judge was required to balance non-claimant individual rights to privacy, confidentiality, and legal privilege with the goals enshrined in the IRSSA. In doing so, he determined that the following categories of Non-Claim Records contained confidential, sensitive, and privileged information. This determination was rooted firmly in the unchallenged evidence of Mr. Tetreault and the archival assessment of Edward Tompkins, appended to Mr. Tetreault’s affidavit, which the Supervising Judge accepted. (a) The Adjudicator Performance Records [94] The adjudicator performance records were excluded from the Chief Adjudicator’s proposal. The Supervising Judge agreed with the Chief Adjudicator that disclosure of the adjudicator performance records would undermine deliberative secrecy and the finality of the IAP by providing a basis for collateral attacks on adjudicators’ decisions and re-litigation of matters settled in IAP proceedings. He also agreed that the idea of disclosing the records of adjudicators’ personal employment information was particularly inappropriate given the confidential nature of the IAP whereby decisions are not available for review. (b) The Non-Public IAP Oversight Committee Records [95] The non-public IAP Oversight Committee Records relate to the committee’s in camera sessions that arose in confidence. These also include records not normally made public: agendas; document packages; emails that may include sensitive personal information about adjudicators’ performance; complaints against claimant counsel and others; and information subject to solicitor-client privilege, litigation privilege, or common interest privilege. As a result, the Supervising Judge concluded that only publicly available records of the IAP Oversight Committee should be included in the Non-Claim Records collection. (c) The Complaint and Investigation Records [96] Complaint records include information about complaints and investigations into persons acting for claimants in connection with the IAP. They contain sensitive personal information and allegations against individuals. Some of the information has not been verified, corroborated, or tested. In some cases, the allegations were unfounded. A joint direction was made by judges in both Ontario and British Columbia that none of these documents should be published without prior written approval from the Court Monitor. The Supervising Judge therefore determined that the complaint and investigation records that had not been disclosed to the public should not be included in the Non-Claim Records collection. [97] We see no basis to intervene with the Supervising Judge’s decision to exclude these three categories of records from the Non-Claim Records collection. (d) The General Prohibition [98] Finally, we see no error in the Supervising Judge’s general prohibition against the inclusion of records in the Non-Claim Records collection where there is any risk that these records could reveal confidential and privileged information. In any event, it is open to the parties and non-parties to clarify the meaning of this provision when they re-attend to deal with the proposed Static Reports and Canada’s RFD. [99] We therefore dismiss this ground of appeal. (e) Archiving of the Non-Claim Records [100] Lastly, the NCTR submits that the Supervising Judge erred in holding that Canada can archive these original “confidential” records, while prohibiting Canada from transferring these records to the NCTR. [101] We disagree that the Supervising Judge erred. [102] The Supervising Judge’s clear prohibition is against the public disclosure of confidential IAP information, as confirmed by Fontaine (SCC) . This is not controversial but a well-settled prohibition that applies equally to Canada and that the Supervising Judge was not permitted to revisit. As the Supervising Judge indicated at para. 203 of his reasons, “the NCTR is free to build as comprehensive an archive as it may outside of the strictures of the IRSSA, which strictures it must observe just as much as Canada must observe those strictures.” [103] However, the Supervising Judge did not prohibit Canada from transferring any other Non-Claim Records to the NCTR. As he stated at paras. 204 and 211 of his reasons, “Canada is not or should not be against archiving copies of Non-Claim Documents with the NCTR,” and “there is, practically speaking, no meaningful dispute between the parties about the appropriateness of the NCTR as an archive for copies of the Non-Claim Records.” As such, copies of appropriate Non-Claim Records, not originals, can be delivered to the NCTR, following the approach used by Goudge J.A. in Fontaine v. Canada (Attorney General) , 2013 ONSC 684, 114 O.R. (3d) 263, as emphasized by the Supervising Judge at para. 202 of his reasons. [104] It is also important to note that, as set out at paras. 194-204 of his reasons, the Supervising Judge envisaged and recommended a consultative process with respect to the Non-Claim Records. The NCTR will also have the opportunity to participate in the hearing of Canada’s RFD and proposal regarding the Non-Claim Records to voice its concerns. [105] We therefore dismiss this ground of appeal. F. Disposition [106] For these reasons, we allow the appeal in part, set aside paras. 3(f) and 7 of the Supervising Judge’s January 20, 2020 order, and remit the issue of the proposed Static Reports to the Supervising Judge for a rehearing in accordance with these reasons. [107] We order the production of any further proposed Static Reports to be in final form and placed under seal to the Supervising Judge prior to the rehearing, in accordance with his directions. [108] We grant the NCTR’s request for a stay of the order to prevent the destruction of the SADRE database from which the proposed Static Reports are to be produced, until such time as the Supervising Judge disposes of this issue. [109] We otherwise dismiss the appeal as it pertains to the Non-Claim Records. [110] If any party is seeking costs and the parties cannot agree on the disposition of costs, they may make brief written submissions of no more than two pages, plus a costs outline, within seven days of the release of these reasons. Released: April 1, 2021 “L.R.” “L.B. Roberts J.A.” “M. Jamal J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Foster v. West, 2021 ONCA 263 DATE: 20210423 DOCKET: M52387 (C68225) Fairburn A.C.J.O. (Motion Judge) BETWEEN Rebecca Mae (Swirsky) Foster Applicant (Appellant) and James John West Respondent (Respondent) Ken Nathens and Denniel Duong, for the appellant Mackenzie Dean and Kirsten Hughes, for the respondent Jane Stewart and Mary Birdsell, for the proposed intervener Justice for Children and Youth Heard: April 22, 2021 by video conference REASONS FOR DECISION [1] This is a motion for leave to intervene as a friend of the court, pursuant to r. 13.02 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, in an appeal from an order of McLaren J., dated February 26, 2020, resolving a long-running, high conflict custody and access matter involving two children of a former marriage. The two children are now 11 and 15 years of age. [2] The children were not represented by the Office of the Children’s Lawyer at trial. Even so, the appellant mother presented evidence from various professionals purporting to express the views and preferences of the children. In contrast, the respondent father presented evidence of various professionals who focussed upon the impact of conflict and alienation on the children. [3] The trial judge found that the children’s “views and preferences [were] not helpful” in arriving at the decision. The trial judge did not put any weight on the views and preferences because she considered them to be “not reliable”. Ultimately, the trial judge ordered equal time sharing between the parties and custody (“decision-making responsibility” under the recent March 1, 2021 amendments to the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), s. 2(1)) to the respondent. [4] Justice for Children and Youth (“JFCY”) seeks leave to intervene as a friend of the court in the appeal that is currently listed to be heard on May 7, 2021. [5] JFCY is a specialty legal aid clinic that has been in existence for almost 40 years. Its mandate includes the promotion and protection of the rights of children. JFCY has significant expertise providing direct legal representation to vulnerable youth, including in the area of family law. JFCY was also involved in assisting with submissions made in relation to the recent amendments to the Divorce Act , including those that involve the determination of the best interests of the child: see Divorce Act , s. 16. This court and others have benefited from JFCY’s expertise as an intervener in the past. [6] If granted leave to intervene, JFCY commits to refrain from taking a position on the outcome of the appeal, instead focussing its arguments upon the rights and interests of children at large. In broad strokes, JFCY proposes to address: (1) the recent amendments to the Divorce Act and how those amendments “affirm and clarify existing components of the best interests of the child analysis”; (2) the need to ensure that children have an opportunity to have their views and preferences heard by the court, which includes children having “an independent voice in family law proceedings, appropriate to their age, stage of development, and maturity”; (3) the fact that expressions of alignment and allegations of alienation are an insufficient basis upon which to dispense with children’s rights to be heard and to have their own preferences and views expressed and meaningfully considered; and (4) the need to keep the best interests of the child at the centre of all decision-making regarding children, not just decisions related to parenting time and contact. As it relates to the first argument, JFCY highlights that this is the first time that this court will be called upon to interpret the amendments to the Divorce Act . [7] While the appellant consents to the intervention, the respondent is opposed to JFCY’s motion to intervene. [8] The appellant filed no materials on this motion and made limited oral submissions in favour of intervention, noting that JFCY has an expertise that it can bring to the appeal that the appellant is unable to advance. While the appellant argues that the interpretation of the new provisions within the Divorce Act will be generally important on appeal, in the sense that they inform how the trial judge should have approached the consideration of the children’s best interests, the appellant acknowledges that the amendments were not operative at the time of the trial judge’s decision and, therefore, the trial judge did not err in failing to apply the amendments. [9] The respondent argues that JFCY should be denied intervener status for a number of reasons, including that: (1) this is an entirely private dispute that should require a more onerous and stringent standard before permitting an intervention; (2) the arguments of the proposed intervener are not unique and there would be no need for the input of the proposed intervener, as JFCY will be unable to make a useful contribution in this fact-specific appeal; and (3) the lateness of this motion to intervene, being brought so close to the hearing date, will prejudice the respondent, in the sense that it will not give the respondent sufficient time to respond. [10] The test for intervention is well-established and needs no amplification. As Dubin C.J.O. held in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167: Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, 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 resolution of the appeal without causing injustice to the immediate parties. [11] I start with the proposition that this is a private dispute. Where intervention is sought in a private dispute of this nature, as opposed to one involving the state, the standard to be met by the proposed intervener is “more onerous or more stringently applied”: Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), at para. 23. [12] Looking at the matter through that lens, I note the appellant acknowledged in oral submissions that this court will not be asked to apply the amendments to the Divorce Act in this case, as the trial judge did not err in failing to apply the amendments. Rather, the appellant argues that the interpretation of the Divorce Act as it existed at the time that the trial judge gave her decision should be informed by the amendments regarding the best interests of the child. Therefore, in my view, this appeal does not bring the interpretation and application of the amendments of the Divorce Act as squarely into focus as the proposed intervener suggests. [13] Further, I note that the appellant is represented by senior counsel and, to the extent that the amendments to the Divorce Act might shed some light on the trial judge’s approach to the best interests of the children in this case, I have no doubt that the appellant can articulate that position without the assistance of an intervener. [14] As for the balance of the issues that JFCY wishes to raise, none of them are novel, in the sense that this court will be called upon to weigh in on something of first impression. While I have no doubt that JFCY could make a useful contribution on these issues, this would be the case on many similar appeals heard by this court, including those arising from public disputes. [15] Regardless, what really tips the balance against the intervention in this case is the timing of the application and the prejudice that will arise to the respondent if intervener status to JFCY is granted. The order appealed from is dated February 26, 2020: Swirsky v. West , 2020 ONSC 1213. The appellant’s notice of appeal was filed in this court on March 25, 2020. JFCY first put the respondent on notice of their intention to seek leave to intervene on March 26, 2021. The earliest motion date available to hear this matter was April 22, 2021. At the same time that the matter was set down for the April 22, 2021 hearing, the court communicated with the proposed intervener and parties about a filing schedule, including that the proposed intervener file their materials “no later than” April 12, 2021. [16] At the hearing of the motion yesterday, April 22, 2021, inquiries were made as to whether the proposed intervener, if granted intervener status, could file their factum by today, April 23, 2021, two weeks before the hearing of the appeal. That was not possible. The earliest date possible was said to be April 28, 2021. I note that the court has since received a letter that the proposed intervener could file a factum one day earlier, that is by April 27, 2021. Assuming this earlier filing date were to be granted, that would still only leave seven court days before the hearing of the appeal. [17] While the appellant takes no issue with the proposed filing date, the respondent argues that they will be prejudiced by this late filing. Counsel for the respondent have obligations over the week of April 26, 2021, which I accept to be the case, that would prevent them from considering the new factum until the week of May 3, 2021. This would be the same week of the scheduled appeal. The respondent would need a proper opportunity to reply to JFCY’s factum. Even the appellant said that they may wish to reply. In any event, for the respondent, working toward a reply could not commence until the Monday of the week of the hearing of the Friday appeal. Furthermore, in a letter sent to the court following oral submissions, counsel for the respondent reiterated their inability to respond to JFCY’s factum if it were to be filed on April 27, 2021. [18] In my view, the respondent has a very strong position when it comes to prejudice. This is not to mention that an intervention of this nature is meant to assist the court, yet that assistance can be significantly diminished when the materials are being filed at the last minute. [19] Although the proposed intervener was under no obligation to do so, it is often the case that when a motion to intervene is brought, and especially when it is brought on such short notice, a draft proposed factum is provided with that application. While the proposed intervener provided a very high-level overview of their main arguments, bringing a draft proposed factum would have permitted the parties to know the proposed intervener’s precise position and would have allowed for an immediate filing should the motion be granted. The date of the hearing of the appeal has been known for some time, certainly prior to JFCY’s first notice to counsel of their wish to seek intervener status. [20] None of these comments should be taken as criticisms of JFCY or as a failure to appreciate the very important work done by the organization. I do not question JFCY’s expertise, which has been of assistance to this court in the past. Even so, when I balance the nature of this appeal against the nature of the contribution that could be made to the issues in dispute, and the nature of the prejudice that could arise from allowing perfection of such a late intervention, I conclude that the motion must be dismissed. [21] JFCY is a publicly funded, public interest organization. This was a brief motion involving the application of well-known principles of law regarding an intervention pursuant to r. 13.02 of the Rules of Civil Procedure . The motion was well motivated. Therefore, costs will not be awarded to the respondent. “Fairburn A.C.J.O.”

COURT OF APPEAL FOR ONTARIO CITATION: Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201 DATE: 20210401 DOCKET: C67533 and C67557 Gillese, Lauwers and Benotto JJ.A. DOCKET: C67533 BETWEEN Fram Elgin Mills 90 Inc. (formerly Frambordeaux Developments Inc.) Plaintiff and Romandale Farms Limited , Jeffrey Kerbel, 2001251 Ontario Inc. and First Elgin Developments Inc. Defendants ( Respondent /Appellants) AND BETWEEN Fram 405 Construction Ltd. and Bordeaux Homes Inc. Plaintiffs and Romandale Farms Limited , 2001251 Ontario Inc., First Elgin Developments Inc. and Jeffrey Kerbel Defendants ( Respondent /Appellants) AND BETWEEN Romandale Farms Limited Plaintiff (Respondent) and 2001251 Ontario Inc. Defendant (Appellant) AND BETWEEN 2001251 Ontario Inc. Plaintiff (Appellant) and Romandale Farms Limited Defendant (Respondent) DOCKET: C67557 BETWEEN Fram Elgin Mills 90 Inc. (formerly Frambordeaux Developments Inc.) Plaintiff (Appellant) and Romandale Farms Limited , Jeffrey Kerbel, 2001251 Ontario Inc. and First Elgin Developments Inc. Defendants ( Respondent ) AND BETWEEN Fram 405 Construction Ltd. and Bordeaux Homes Inc. Plaintiffs ( Appellant ) and Romandale Farms Limited , 2001251 Ontario Inc., First Elgin Developments Inc. and Jeffrey Kerbel Defendants ( Respondent ) AND BETWEEN Romandale Farms Limited Plaintiff and 2001251 Ontario Inc. Defendant AND BETWEEN 2001251 Ontario Inc. Plaintiff and Romandale Farms Limited Defendant Chris G. Paliare and Tina H. Lie, for the appellants Jeffrey Kerbel, 2001251 Ontario Inc., and First Elgin Developments Inc. (C67533) Sheila R. Block, Jeremy Opolsky, Sara J. Erskine, and Benjamin Lerer for the appellants Fram Elgin Mills 90 Inc. (formerly Frambordeaux Developments Inc.) and Fram 405 Construction Inc. (C67557) Sarit E. Batner, Kosta Kalogiros, and Avi Bourassa, for the respondent Romandale Farms Limited (C67533 and C67557) Heard: September 8 and 9, 2020, by video conference On appeal from the judgment of Justice Nancy J. Spies, of the Superior Court of Justice, dated September 13, 2019, with reasons reported at 2019 ONSC 5322, and from the costs order, dated April 2, 2020. Table of Contents Majority Reasons : 1 I. Overview .. 1 II. THE PARTIES . 6 III. KEY DATES AND AGREEMENTS . 7 IV. The Trial REASONS . 18 V. The Issues ON THE APPEALS . 29 A. Issues Raised by Fram .. 29 B. Issues Raised by Kerbel 30 VI. ROMANDALE ALLEGES THRESHOLD FLAWS . 30 A. The First Alleged Threshold Flaw . 31 B. The Second Alleged Threshold Flaw . 34 VII. analysis of fram’s issues . 35 Issue #1:     Did the trial judge err in failing to find that Romandale was estopped, based on estoppel by representation or by convention, from claiming that the Settlement Agreement breached the 2005 August Agreement? A. The Parties’ Positions . 35 B. Estoppel by Representation . 44 (1)     Governing Legal Principles (2)     Application of the Law C. Estoppel by Convention . (1)     Governing Legal Principles (2)     Application of the Law (a)     Assumption Shared and Communicated (i)      The Settlement Agreement and Drafts Leading to It (ii)      Letters between Counsel (iii)     Pleadings and Evidence at Trial (b)     Reliance (c)     Detriment ( d)     Romandale’s Overriding Submission on Estoppel by Convention (e)     Conclusion on Estoppel by Convention Issue #2:     Did the trial judge err in determining that, by entering into the Settlement Agreement, Kerbel breached the 2005 August Agreement? VIII. analysis of KERBEL’S issues . 74 Issue #3:     Did the trial judge err in concluding that Kerbel repudiated the 2005 August Agreement? Issue #4:     Did the trial judge err in concluding that the 2005 August Agreement was frustrated? A. The Parties’ Positions . 75 B. Governing Legal Principles . 79 C. Application of the Law . 80 Issue #5:     Did the trial judge err in concluding that the 2005 August Agreement was void for mistake? A. The Parties’ Positions . 85 B. Governing Legal Principles . 86 C. Application of the Law . 87 Issue #6:     Did the trial judge err in finding Kerbel’s claim was limitation-barred? A. The Parties’ Positions . 89 B. Governing Legal Principles . 92 C. Application of the Law . 93 Issue #7:     Did the trial judge err in concluding that Kerbel was not entitled to specific performance of the 2005 August Agreement? A. The Parties’ Positions . 99 B. Governing Legal Principles . 102 C. Application of the Law . 103 IX. FRAM’S CLAIM FOR DAMAGES . 108 X. The Costs Appeal . 109 XI. A COMMENT ON THE CONCURRING REASONS . 111 XII. Disposition . 111 SCHEDULE “A”: CHRONOLOGY OF EVENTS . 113 Schedule “B”: KEY Contractual Provisions . 127 1. Key Provisions in the COAs . 127 2. The 2005 August Agreement 131 3. The Settlement Agreement 138 Concurring Reasons by Lauwers J.A.: 149 A. OVERVIEW .. 149 B. THE CONTRACTUAL CONTEXT . 149 C. ANALYSIS . 151 (1).. Any Estoppel Ceased to Have Practical Effect When Fram Consented to   the Sale of Romandale’s Remaining Interest on August 22, 2018 . 151 (2).. Estoppel by Convention Is Not Made Out 153 (3).. Kerbel Did Not Breach the 2005 August Agreement by Entering Into the Settlement Agreement with Fram .. 167 (4).. By Entering Into the Settlement Agreement, Kerbel Did Not Repudiate Its Obligations Under the 2005 August Agreement. 181 (5).. Kerbel Is Entitled to Specific Performance of the 2005 August Agreement 183 Gillese J.A.: [1] These appeals involve competing claims to undeveloped lands in Markham, Ontario. They illustrate the perils associated with a landowner selling interests in the land to more than one party in more than one transaction. [2] The appeals raise many legal issues, one of which is the little-known equitable doctrine of estoppel by convention. In Canada, this doctrine finds its roots in Ryan v. Moore , 2005 SCC 38, [2005] 2 S.C.R. 53. As you will see, estoppel by convention plays a critical role in the resolution of these appeals. I. Overview [3] Romandale Farms Limited (“ Romandale ”) owned two neighbouring farms in Markham [1] known as the McGrisken Farm and the Snider Farm (the “ Lands ”). The Lands comprise approximately 275 acres of undeveloped land in the Elgin Mills Road and Warden Avenue area of Markham. [4] Initially, Romandale was the sole owner of the Lands. However, in 2003 and 2005, Romandale entered into agreements relating to the Lands, as a result of which much litigation has ensued. [5] In 2003, Romandale sold an undivided 5% interest in the Lands to Fram . [2] Romandale and Fram planned to obtain the necessary planning approval for the Lands so that they could be developed for residential use. It was their intention that Fram would build homes on the Lands, sell them, and share the profits with Romandale. Romandale and Fram entered into a number of agreements relating to the Lands, including co-owners agreements (the “ COAs ”). Under the COAs, subject to limited exceptions, neither party could dispose of its interest in the Lands. The COAs also contained a buy-sell mechanism that was generally available only after secondary planning approval (“ SPA ”) [3] had been obtained for the Lands. SPA is required before the Lands can be developed. [6] In August 2005, Romandale entered into an agreement with Kerbel [4] (the “ 2005 August Agreement ”) consisting of several transactions respecting properties in Markham. One of the transactions was the sale of Romandale’s 95% interest in the Lands to Kerbel. This was to be achieved in two steps. In the first step, Romandale sold Kerbel 5% of its interest in the Lands. [5] In the second step, Romandale agreed to sell its remaining interest in the Lands to Kerbel, conditional on either Fram’s consent to the sale or Romandale’s exercise of the buy-sell provisions in the COAs. All of the transactions under the 2005 August Agreement have been completed with the exception of the sale of Romandale’s remaining interest in the Lands to Kerbel. [6] [7] Whether Romandale is bound by the 2005 August Agreement – and its obligations respecting the sale of its remaining interest in the Lands – is the driving force behind these appeals. [8] In 2007, Fram sued Romandale and Kerbel, claiming that the 2005 August Agreement was an impermissible disposition of Romandale’s interest in the Lands under the COAs (the “ 2007 Action ”). [9] In 2008, Fram and the development manager for the Lands sued Romandale and Kerbel. They alleged that the 2005 August Agreement amounted to a breach of the construction management agreements between Fram and Romandale respecting the Lands (the “ 2008 Action ”). [10] In 2009, government decisions significantly changed the timelines and development prospects for the Lands. Development of the Snider Farm was delayed until 2021-2031 and of the McGrisken Farm until 2031-2051. In addition, the Snider Farm was newly earmarked for employment use, which would prevent residential development. [11] The 2007 and 2008 Actions were scheduled for trial in the fall of 2010. In an attempt to settle them before trial, Fram, Kerbel and Romandale attended a judicial mediation in September 2010. At the mediation, the three parties reached an agreement in principle. That agreement included a statement of the parties’ intention that the purchase and sale of Romandale’s remaining interest in the Lands to Kerbel would take place after the Lands obtained SPA (the “ Statement ”). Romandale later withdrew from the settlement agreement. However, in December 2010, Fram and Kerbel settled the matters between them and entered into a settlement agreement (the “ Settlement Agreement ”). It is important to note that para. 5 of the Settlement Agreement contains the Statement. [12] In 2014, Romandale sued Kerbel claiming Kerbel breached the 2005 August Agreement by taking steps to reduce the amount of developable acreage on the Lands (the “ 2014 Action ”). [13] In 2015, Romandale changed legal counsel. For the first time, it took the position that, because of the Statement in the Settlement Agreement, Kerbel had repudiated the 2005 August Agreement. Romandale also announced that it considered itself no longer bound by the 2005 August Agreement. Accordingly, in 2016, Kerbel sued Romandale to compel it to perform its remaining obligation under the 2005 August Agreement (the “ 2016 Action ”). [14] The four actions involving the Lands were tried together in the fall of 2018. [15] By judgment dated September 13, 2019 (the “ Judgment ”), all four actions were resolved in favour of Romandale. The trial judge’s key determination was that Kerbel repudiated the 2005 August Agreement when it entered into the Settlement Agreement because para. 5 of the Settlement Agreement stated the parties’ intention that the purchase and sale of the Remaining Interest would take place after SPA. The trial judge found that Romandale had accepted the repudiation and concluded that the 2005 August Agreement was at an end. Accordingly, Romandale was excused from performing its remaining obligations under the 2005 August Agreement. [16] Both Fram and Kerbel (collectively, the “ Appellants ”) appeal to this court. Their appeals were consolidated. The Appellants ask this court to, among other things, declare that the 2005 August Agreement is valid and enforceable, and make an order for specific performance requiring Romandale to perform its obligations under the 2005 August Agreement. [17] For the reasons that follow, I would allow the appeals and make the requested order for specific performance. II. THE PARTIES [18] There are two sets of appellants in this appeal. [19] The Fram appellants consist of Fram Elgin Mills 90 Inc. and Fram 405 Construction Ltd. Fram Elgin Mills 90 Inc. is part of a group of companies known as the Fram Building Group. It was incorporated for the purpose of developing the Lands. Before 2010, it was named Frambordeaux Developments Inc. Frank Giannone is the president of Fram Elgin Mills 90 Inc. In deciding the issues in these appeals, it generally does not matter whether the Fram appellants were involved collectively or individually. For ease of reference, I use “Fram” when I refer to one or more of the Fram appellants. However, when the distinction matters, I use the individual party’s name. [20] The Kerbel appellants consist of 2001251 Ontario Inc., First Elgin Developments Inc., and Jeffrey Kerbel. They are land developers and builders. Mr. Kerbel is the principal of the Kerbel group of companies. Again, for ease of reference, I use “Kerbel” when I refer to one or more of the Kerbel appellants but, when the distinction matters, I use the individual party’s name. [21] Romandale is a corporation that has long owned properties in the Markham area, including the Lands. Helen Roman-Barber has been the principal of Romandale since 1988. The Roman family owns and operates Romandale. It also owned the Triple R Lands, an adjoining property to the Lands. III. KEY DATES AND AGREEMENTS [22] Below you will find a summary of the key dates and most significant agreements. A more detailed chronology of events is contained in Schedule “A” to these reasons. In the analysis of the various issues, I rely on the detailed recitation of facts set out in that chronology. This section and the chronology in Schedule “A” are based on the factual findings in the trial judge’s reasons (the “ Reasons ”). [23] In Schedule “B” to these reasons, you will find the text of: the key contractual provisions in the COAs between Romandale and Fram; the 2005 August Agreement; and, the Settlement Agreement. 2003 [24] Romandale sells Fram an undivided 5% interest in the Lands and the parties enter into two identical sets of agreements, one set for each farm property. Each set consisted of three documents: the COA , which sets out the terms and conditions on which Romandale and Fram, as co-owners, hold title to the Lands; the Construction Management Agreement (“ CMA ”), under which Fram was to construct and sell residential units on the Lands, once the Lands achieved SPA ; and the Development Management Agreement (“ DMA ”), which governed the development process for the Lands. Bordeaux Developments (Ontario) Inc. (“ Bordeaux ”) was also a party to the DMAs and, under its terms, Bordeaux was appointed the development manager responsible for the development requirements of the Lands. [25] Of these agreements, the COAs are the most significant for these appeals. The buy-sell provision in s. 5.07 of the COAs permits a co-owner, under certain conditions, to tender on the other an offer to sell its entire interest in the Lands and, at the same time, an offer to buy the other’s entire interest in the Lands on the same terms as the offer to sell. The non-tendering party must choose whether to buy out the tendering party or sell its interest. The buy-sell is available once SPA is obtained for the Lands or the DMAs are terminated. [26] Section 6.02 of the COAs provides that if an event of default occurs and is continuing, the non-defaulting party has the right to, among other things, bring proceedings for specific performance and/or buy the defaulting party’s interest in the Lands at 95% of fair market value. [27] Development of the Lands depended on obtaining planning approval, including appropriate amendments to the official plan. These changes are made to the secondary plan, which provides more detailed policies for the development of a specific area. The process of obtaining development approval for specific lands is known as SPA. This is reflected in s. 5.07(a) of the COAs which defines SPA as “an amendment of the official plan of the Town of Markham applicable to the Lands, obtained in accordance with the Planning Act (Ontario)”. [28] When Romandale and Fram entered into these agreements in 2003, Romandale had not yet started the SPA process. 2004 [29] With Fram’s consent, Romandale borrows $6 million from the Bank of Nova Scotia (“ BNS ”), secured by a mortgage on the Lands. 2005 [30] With Fram’s consent, Romandale terminates the DMAs with Bordeaux. [7] The ongoing work to move the Lands through SPA continues through a new agreement between Fram and Romandale to co-manage development of the Lands. [31] BNS calls its $6 million mortgage. Romandale needs financing to repay the BNS loan by August 30, 2005. It also needs cash to make distributions to the Roman family. The solution is the 2005 August Agreement, which Romandale and Kerbel enter into on August 29, 2005. [32] In the 2005 August Agreement, Kerbel agrees to pay off the BNS mortgage and extend the same amount as a new loan to Romandale under the same security and Romandale agrees to: (1) sell Kerbel its 95% interest in the Lands for a fixed price of $160,000 per acre; (2) on behalf of the Roman family, sell Kerbel the adjoining Triple R Lands for $175,000 per acre, subject to a purchase price adjustment for non-developable acreage; and (3) grant Kerbel a right of second refusal over other lands, called the Elgin South Property. The sale of Romandale’s interest in the Lands is to occur in two steps: a.   Step 1: an initial sale of 5% of Romandale’s interest in the Lands; and b.   Step 2: the sale of Romandale’s remaining interest in the Lands (“ Remaining Interest ”), conditional on: i.   Romandale buying out Fram’s interest in the Lands pursuant to the buy-sell provisions in the COAs; or ii.  Fram consenting to the transaction. [33] I refer to the second step of the sale of Romandale’s interest in the Lands to Kerbel as the “ Conditional Provision ”. [34] All the transactions in the 2005 August Agreement have been completed, except the sale of Romandale’s Remaining Interest to Kerbel under the Conditional Provision. Romandale received over $16 million in immediate value from Kerbel under the 2005 August Agreement: $6 million in new mortgage financing; $2,128,000 in cash for its 5% interest in the Lands; and, $8,575,000 for the Triple R Lands. [35] Paragraph 5 of the 2005 August Agreement empowers Kerbel to cause Romandale to trigger the buy-sell provision in the COAs following SPA being obtained for the Lands. Paragraph 5 also gives Kerbel exclusive control over the development of the Lands. [36] Ms. Roman-Barber tells Fram she reached an agreement with Kerbel under which she sold the Triple R Lands, assigned the BNS mortgage, and sold a 5% interest in the Lands. She does not disclose that Romandale also committed to sell its entire interest in the Lands through the Conditional Provision. 2007 [37] Despite repeated requests that Romandale provide it with a copy of the 2005 August Agreement, it is only in April 2007 that Fram’s counsel is permitted to read a copy. [38] Fram starts the 2007 Action against Romandale and Kerbel, alleging that the 2005 August Agreement was a prohibited disposition under the COAs. It also seeks an injunction restraining Romandale from any further sale of its interest in the Lands. Further, it gives notice it will seek to exercise its remedy under the COAs to purchase Romandale’s interest in the Lands at 95% of fair market value. [39] The injunction is ordered. 2008 [40] Fram and Bordeaux start the 2008 Action against Romandale and Kerbel based on alleged breaches of the CMAs. Under the CMAs, Fram has the right to construct residences on the Lands once SPA is obtained. [41] Kerbel, as owner of the Triple R Lands, together with neighbouring landowners, form the North Markham Landowners Group (“ NMLG ”) with the goal of engaging collectively with the relevant authorities about the development of their respective properties. [42] From 2008 onward, the NMLG retains consultants and commissions studies required for the development process and engages in that process with Markham. NMLG’s development costs have been in the hundred of thousands of dollars. Until 2011, Kerbel reimbursed Romandale for all costs associated with the Lands, including Romandale’s share of the NMLG “cash calls” that were made to fund the NMLG ongoing development activities. 2009 [43] Government decisions change the anticipated development timeline for the Lands. As a result, development of the Snider Farm is delayed until 2021-2031 and of the McGrisken Farm until 2031-2051. In addition, the Snider Farm is proposed for employment use, which would prevent residential development. [44] At Kerbel’s insistence, Romandale joins the NMLG. 2010 [45] In the hope of resolving the 2007 and 2008 Actions before trial, Romandale, Fram, and Kerbel engage in settlement discussions at a judicial mediation in September 2010. The three parties reach an agreement in principle on the main settlement terms. One of the agreed settlement terms is that the sale of Romandale’s Remaining Interest to Kerbel will occur after the Lands achieve SPA. The following day, counsel for Romandale writes to counsel for Fram and Kerbel and outlines the agreed points of settlement, including that sale of its Remaining Interest will occur when SPA has been obtained for the Lands. [46] Romandale withdraws from the settlement in October but Fram and Kerbel move forward and enter into the Settlement Agreement in December 2010. [47] The Settlement Agreement provides that if Romandale does not concur in it and the 2007 and 2008 Actions proceed to trial: (1) Fram would discontinue its claims against Kerbel, not seek a declaration that the 2005 August Agreement is void, and restrict its claims against Romandale to damages; (2) Kerbel would provide Fram with an option to purchase a 50% interest in Romandale’s Remaining Interest, on the same terms and conditions as Kerbel might purchase Romandale’s Remaining Interest; (3) If Fram exercises the option, it and Kerbel would enter into a joint venture agreement to develop the Lands with (effectively) an equal sharing of costs; (4) Fram does not consent to Romandale’s sale of its Remaining Interest in the Lands to Kerbel; and (5) Para. 5 of the Settlement Agreement includes the statement of Fram and Kerbel’s intention that “the purchase and sale of Romandale’s Remaining Interest in the Lands pursuant to these Minutes of Settlement will take place after [SPA] for the Lands has been obtained”. 2011 [48] By letter dated January 28, 2011, counsel for Romandale advises Fram and Kerbel that Romandale objects to Kerbel’s land planner telling the NMLG that there was a change in the ownership of the Lands. The letter reiterates that Romandale conditionally sold the Lands to Kerbel under the 2005 August Agreement and “[t]he condition could only be satisfied by either a) secondary plan approval (which has not been achieved); b) or the consent of [Fram] to the transaction”. [49] Romandale represents the Lands at the NMLG and instructs its planning consultant (and others working for it) to not share information with Kerbel’s planner. [50] Kerbel’s counsel sends a letter, dated February 17, 2011, to Romandale’s counsel complaining that Ms. Roman-Barber’s conduct is a breach of para. 5 of the 2005 August Agreement in which Romandale ceded control of the development process for the Lands to Kerbel. It demands that Romandale confirm to the NMLG that Kerbel’s planning consultant has the sole authority to represent the Lands and threatens to commence proceedings if Ms. Roman-Barber does not comply with para. 5 of the 2005 August Agreement. [51] Romandale’s counsel responds by letter, dated February 25, 2011, asserting that its client had “at all times acted in accordance” with the 2005 August Agreement and that it is considering whether the Settlement Agreement was a breach of the 2005 August Agreement. 2013 [52] Meanwhile, Romandale and Kerbel are involved in litigation over the purchase price of the Triple R Lands (the “ Triple R Lands Litigation ”), one of the transactions in the 2005 August Agreement. In February 2013, Romandale and Kerbel enter into a partial settlement in which they agree that if Kerbel is found to be entitled to a price adjustment, the determination of the non-developable lands is to be done “pursuant to the terms of the [2005 August Agreement] and the Amendment”. [8] [53] Romandale leaves the NMLG. 2014 [54] Romandale starts the 2014 Action against Kerbel, alleging that Kerbel fundamentally breached the 2005 August Agreement by taking steps to reduce the amount of developable acreage on the Lands. It seeks a declaration that the 2005 August Agreement is terminated or, alternatively, damages. [55] This court releases its decision in the Triple R Lands Litigation, finding in favour of Kerbel. It declares that Kerbel is entitled to a purchase price reduction in accordance with the 2005 August Agreement. 2015 [56] Romandale retains new counsel and takes a new position: the buy-sell provisions in the COAs could be performed before SPA because the DMAs with Bordeaux had been terminated in February 2005. [57] Romandale obtains leave to amend its pleadings in the 2007 Action to allege, for the first time, that Kerbel repudiated the 2005 August Agreement by entering into the Settlement Agreement because it contained para. 5 which provides that the purchase and sale of Romandale’s Remaining Interest in the Lands would occur after SPA. Also for the first time, in its amended pleading, Romandale asserts that it will not perform the 2005 August Agreement in any event. 2016 [58] Kerbel starts the 2016 Action against Romandale, seeking specific performance of the 2005 August Agreement. 2017 [59] Kerbel files a crossclaim in the 2007 Action seeking specific performance of the 2005 August Agreement and an order directing Romandale to comply with its terms. [60] Romandale files a defence to Kerbel’s crossclaim in the 2007 Action and newly alleges that the 2005 August Agreement offends the rule against perpetuities. 2018 [61] Shortly before the trial of the four actions begins in October 2018, Fram and Kerbel amend the Settlement Agreement to allow the sale of Romandale’s Remaining Interest to close immediately, rather than after SPA, and Fram delivers its consent to that sale. [62] When the trial begins, SPA has not been obtained for the Lands. IV. The Trial REASONS [63] As the trial reasons are over 100 single-spaced pages in length, I will not attempt to summarize them here. Instead, I set out below a summary of the disposition of each of the four actions. Thereafter, I summarize the Reasons on the issues raised in these appeals. Disposition of the Four Actions [64] The trial judge concluded that Romandale did not breach the COAs when it entered into the 2005 August Agreement and dismissed the 2007 Action accordingly. In reaching this conclusion, the trial judge held that: (1) the Conditional Provision was not a “Disposition” in breach of s. 5.03 of the COAs; (2) Romandale was not obliged to give Fram notice and a copy of the 2005 August Agreement so, if it did fail to disclose the same (which Romandale disputed), the failure was not a breach of the COAs; and, (3) Romandale did not breach the COAs by ceding control over the development of the Lands to Kerbel under the 2005 August Agreement (Reasons, at paras. 187-91, 204-05). [65] The trial judge concluded that Romandale’s entry into the 2005 August Agreement did not amount to a breach of the CMAs because Romandale continued to own its Remaining Interest in the Lands and “for all practical purposes” continued to control the development of the Lands in the same way as before (Reasons, at para. 226). Accordingly, she dismissed the 2008 Action. [66] With respect to the 2014 Action, the trial judge declared that the 2005 August Agreement was “at an end and terminated” and she dismissed Kerbel’s crossclaim seeking damages against Romandale. These orders flowed from the trial judge’s determination that Kerbel repudiated the 2005 August Agreement by entering into the Settlement Agreement (Reasons, at paras. 346, 442). [67] Having found that Kerbel had repudiated the 2005 August Agreement and that Romandale accepted the repudiation, the trial judge dismissed Kerbel’s 2016 Action for specific performance of the 2005 August Agreement (Reasons, at paras. 346, 442). Estoppel (Reasons, at paras. 359-72) [68] At trial, both estoppel by representation and estoppel by convention were argued. The trial judge addressed estoppel by representation in the Reasons. However, she did not address estoppel by convention. [69] Quoting from para. 29 of Scotsburn Co-operative Services Ltd. v. W.T. Goodwin Ltd. , [1985] 1 S.C.R. 54, the trial judge set out the following legal principles for estoppel by representation, at para. 359: The essence of estoppel is representation by words or conduct which induces detrimental reliance . A more exhaustive definition is offered in Spencer Bower and Turner, The Law Relating to Estoppel by Representation (3rd ed., 1977), at p. 4: where one person (“the representor”) has made a representation to another person (“the representee”) in words or by acts or conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment , the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner, objects thereto. [Emphasis in the Reasons.] [70] The trial judge described Fram and Kerbel’s position on estoppel as follows. They argued that, prior to the Settlement Agreement and for a number of years following it, Romandale consistently took the position that: (1) the 2005 August Agreement was valid and enforceable; and (2) if Fram did not consent to Romandale’s sale of its Remaining Interest to Kerbel, the buy-sell in the 2005 August Agreement would be performed after SPA. They asserted that Fram relied on Romandale’s position in entering into the Settlement Agreement, thereby compromising its claim to the Lands by 50%, and that Kerbel also compromised its position in reliance on Romandale’s position. [71] Romandale contended that Fram and Kerbel overstated its positions and stripped them of the context in which they were taken. The trial judge agreed, for the following reasons. In the 2007 Action, Romandale’s primary position was that the 2005 August Agreement did not breach the COAs and, as a result, the 2005 August Agreement was valid. The trial judge acknowledged that Romandale did take the position that the buy-sell in the 2005 August Agreement would be triggered after SPA because the buy-sell in the COAs could only be triggered after SPA. However, she noted that Romandale’s position on the buy-sell in the COAs was mistaken and the parties shared this mistaken understanding until 2015 when Romandale rectified its mistake and amended its pleadings. At that point, Romandale asserted that the 2005 August Agreement was unenforceable because Kerbel repudiated it by entering into the Settlement Agreement. However, the trial judge stated that this assertion did not change Romandale’s primary position: Romandale continued to defend the 2007 Action on the basis that the 2005 August Agreement did not breach the COAs. She said that Romandale did not backtrack from its primary position: it was responding to new factual events that carried legal consequences. [72] On the issue of reliance, the trial judge said that Fram’s only evidence was a “bald assertion” by Mr. Giannone that he relied on Romandale’s position that the 2005 August Agreement was enforceable. She said this evidence was totally unreliable and could not be accepted. [73] In any event, the trial judge concluded, any reliance would have been “totally unreasonable” as Romandale objected to the Settlement Agreement before it was entered into. Therefore, Fram and Kerbel proceeded at their own risk. Repudiation of the 2005 August Agreement (Reasons, at paras. 305–46) [74] The trial judge stated the legal principles governing repudiation as follows, at para. 305: The applicable law is not in dispute. A contract may be said to be repudiated when one party acts in a way, by words or conduct, that evinces an intent to no longer be bound by the contract. Only a very substantial breach will amount to a repudiation. As the court stated in Jedfro Investments at para. 21, “having ‘little regard’ for an agreement does not establish that a party is repudiating the agreement”. Repudiation arises where the innocent party is deprived of substantially the whole benefit of its agreement. When faced with repudiation, the innocent party may elect to treat the contract as at an end, relieving the parties from further performance. [Citations omitted.] [75] She concluded that the Settlement Agreement materially and substantially changed the deal in the 2005 August Agreement for the following reasons. Because Kerbel was no longer at liberty to cause Romandale to trigger the buy-sell before SPA and Fram was no longer at liberty to consent before SPA, the result of the Settlement Agreement was to tie up the Lands until after SPA, then decades away or more, at a fixed price, without paying Romandale for the Lands and while leaving Romandale with all the risks and liabilities. She said this entirely devalued the Conditional Provision, given the time value of money, and that Kerbel shifted all of the risk of the Lands to Romandale by tying up the Lands indefinitely without any compensation to Romandale. [76] The trial judge also concluded that, by entering into the Settlement Agreement, Kerbel demonstrated an intent not to be bound by the ongoing performance of the 2005 August Agreement. It wanted instead to abide only by its new Settlement Agreement with Fram. [77] The trial judge determined that Kerbel’s repudiation of the 2005 August Agreement deprived Romandale of substantially the whole benefit of that agreement. In making this determination, the trial judge considered each transaction in the 2005 August Agreement “on its own” and stated that there was no dispute that by the time of the Settlement Agreement, Romandale had not received any of the benefit of the Conditional Provision. She said that all of the transactions in the 2005 August Agreement were either of no benefit to Romandale or of relatively modest benefit when compared to the Conditional Provision. She concluded that performance of the other parts of the 2005 August Agreement could not “represent Romandale receiving substantially the whole of the benefit of that agreement” (at para. 336). [78] The trial judge found that Romandale had accepted Kerbel’s repudiation. In making this finding, she said: (1) by February 2011, Kerbel knew that Romandale was no longer acting in accordance with the 2005 August Agreement; and (2) in a letter dated February 9, 2011, from counsel for Romandale to counsel for Kerbel, Romandale took the position that Kerbel “had breached” the 2005 August Agreement and it was “considering its rights” (at para. 338). [79] Having found that Romandale accepted Kerbel’s repudiation, the trial judge concluded that the parties were relieved of their obligations under the Conditional Provision and it was at an end. Consequently, the Conditional Provision was not enforceable against Romandale. [80] The trial judge also concluded that Kerbel breached its duty of good faith and its fiduciary duty in acting as Romandale’s agent, by fettering its discretion in the Settlement Agreement as to when to cause Romandale to trigger the buy-sell. Further, she was of the view that by entering into the Settlement Agreement, Kerbel breached the “time is of the essence” clause in the 2005 August Agreement and the clause stipulating that the conditions precedent were for the mutual benefit of the parties. Frustration (Reasons, at paras. 347-49) [81] In light of the trial judge’s determination on repudiation, it was not necessary that she consider Romandale’s alternative argument that the 2005 August Agreement was rendered unenforceable on account of frustration. However, the trial judge stated, had it been necessary to consider it, she was persuaded that the 2005 August Agreement was frustrated. [82] Relying on Naylor Group Inc. v. Ellis-Don Construction Ltd. , 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 53, the trial judge said that frustration occurs when a situation has arisen for which the parties made no provision in the contract and performance of the contract becomes “a thing radically different from that which was undertaken by the contract” (at para. 348). [83] The trial judge said it was clear that when the 2005 August Agreement was entered into, both Ms. Roman-Barber and Mr. Kerbel expected that SPA was only years away, not decades away. Unforeseen planning changes resulted in SPA being delayed for decades and the farms being put on different development tracks. In addition, the Snider Farm could be developed only as employment lands, not for residential use. These changes were beyond the control of the parties and rendered the performance of the Conditional Provision radically different from that to which the parties agreed. Mistake (Reasons, at paras. 350-53) [84] Romandale argued that if obtaining SPA was a prerequisite to triggering the buy-sell, the Conditional Provision was unenforceable because Kerbel and Romandale were mistaken, when entering into the 2005 August Agreement, as to the time horizon within which SPA could be achieved. [85] The trial judge accepted this argument and found the Conditional Provision void for mistake. She said the following, at para. 351: Both Romandale and Kerbel, in making a “time is of the essence” clause, fixing a purchase price of $160,000 per acre, and providing for the conditions precedent for their mutual benefit, without any sunset clause or otherwise set[ting] the closing date, were operating on the mistaken understanding that SPA would occur within a relatively short time period, and certainly not decades after the [2005 August Agreement] was entered into. [86] Citing Miller Paving Ltd. v. B. Gottardo Construction Ltd. , 2007 ONCA 422, 86 O.R. (3d) 161, at para. 23, the trial judge set aside the 2005 August Agreement contract for common mistake as, in all the circumstances, it would be “unconscientious” for a contracting party to avail itself of the legal advantage it had obtained. She agreed with Romandale that it would be unconscionable and commercially absurd to enforce the Conditional Provision or even consider it valid and enforceable since the parties would “never have agreed to its terms, especially the fixed price per acre of the Lands, had they known that the timeline for SPA would change so drastically and … be pushed out decades in the future”. Kerbel’s Claims were Time-Barred (Reasons, at paras. 400-07) [87] The trial judge found that even if Kerbel had a claim for specific performance of the 2005 August Agreement, its claim was barred by the expiration of the two-year limitation period under the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B, (the “ Limitations Act ”) and the equitable doctrine of laches. [88] The trial judge found that Kerbel was aware, as of 2011, that Romandale: viewed the Conditional Provision as being at an end; was no longer co-operating with Kerbel to advance the Lands through development as required by the 2005 August Agreement; and, was shutting Kerbel out for its own purposes. She said this conduct clearly revealed that Romandale intended to remain the owner of the Lands and, from its point of view, the Conditional Provision was dead. [89] Despite being aware of this, Kerbel took no material steps to enforce its rights and acquiesced to the state of affairs for years before asserting a claim for specific performance for the first time in the 2016 Action. [90] She rejected Kerbel’s claim that it did not know until 2015 that Romandale intended to not perform the Conditional Provision, saying that this was undermined by the clear implications of Romandale’s conduct since 2011. [91] Kerbel did not seek specific performance of the 2005 August Agreement until it commenced the 2016 Action. That was more than five years after it wrote to Romandale in 2011 asserting that Romandale was breaching the 2005 August Agreement, and threatening to commence litigation to affirm the breach. By 2016, Kerbel was outside the two-year statutory limitation period, had acquiesced to Romandale’s conduct, and had permitted a state of affairs to exist where Romandale spent years investing significant time, effort, and money into the Lands. Specific Performance (Reasons, at paras. 399, 408-23) [92] The trial judge held that Kerbel was not entitled to specific performance of the 2005 August Agreement because the Lands were not unique. [93] The trial judge found the Lands were not unique because Kerbel’s only evidence of uniqueness was “a bald assertion from Mr. Kerbel” and because the expert evidence, including from Kerbel’s expert, contradicted Kerbel’s assertion. The experts called by all three parties used a “direct comparison” approach to provide their opinions on land values. The direct comparison approach determines value based on an analysis of sales of similar properties within a close time period and location. The trial judge concluded that because Fram and Kerbel’s experts were able to use the “direct comparison” approach to value the Lands, “the Lands are not unique”. [94] Further, the trial judge said, the Lands are not unique because they were “just an investment for Kerbel”, there were suitable substitute properties that Kerbel could purchase, and it was possible to quantify the monetary equivalent of Kerbel’s alleged future losses. V. The Issues ON THE APPEALS A. Issues Raised by Fram [95] Fram says that the trial judge made numerous errors in her lengthy trial decision. To narrow its appeal, Fram focused on two issues. It submits that the trial judge erred in: 1.     failing to find that Romandale was estopped, based on either estoppel by representation or estoppel by convention, from claiming that the Settlement Agreement breached the 2005 August Agreement; and 2.     concluding that, by entering into the Settlement Agreement, Kerbel breached the 2005 August Agreement. B. Issues Raised by Kerbel [96] In its appeal, Kerbel raises five issues. It submits that the trial judge erred in concluding that: 3.     it repudiated the 2005 August Agreement by entering into the Settlement Agreement; 4.     the 2005 August Agreement was frustrated; 5.     the 2005 August Agreement was void for mistake; 6.     its claim was limitation barred; and, 7.     it was not entitled to specific performance of the 2005 August Agreement. VI. ROMANDALE ALLEGES THRESHOLD FLAWS [97] Before turning to the issues raised on appeal, I will address Romandale’s contention that the appeals suffer from two threshold flaws warranting their dismissal. [98] First, Romandale submits that Fram’s appeal is improper because it is not an appeal from the dismissal of its 2007 and 2008 Actions but, rather, an attempt to appeal from the 2014 and 2016 Actions, to which Fram was not a party. It says that only a party to a proceeding below can appeal and the fact that multiple actions are ordered to be heard together does not alter the distinct identities of the parties. [99] Second, Romandale submits that the appeals are improper because they are founded on a new, never pleaded or asserted interpretation of the 2005 August Agreement: that it gave Kerbel an unfettered discretion to cause Romandale to trigger the buy-sell before or after SPA. Romandale contends that this interpretation contradicts the one that Kerbel argued at trial: that the 2005 August Agreement required that it cause Romandale to trigger the buy-sell only after SPA. Romandale concludes on this alleged flaw by noting that, had the Appellants raised this new theory in their pleadings or at trial, the evidence “would have no doubt been different”. Allowing Fram and/or Kerbel to now advance this theory, Romandale says, would be manifestly unfair. [100] For the following reasons, I do not accept that either alleged threshold flaw justifies dismissing the appeals. A. The First Alleged Threshold Flaw [101] In my view, the direction that the four actions be tried together coupled with the way in which the trial was conducted are a full answer to the first alleged flaw. [102] In his capacity as the case management judge in these proceedings and pursuant to r. 6 of the Rules of Civil Procedure , R.R.O. 1990, reg. 194, Dunphy J. exercised his discretion and directed that the four actions be tried together in a single trial. He also gave directions about matters relating to the conduct of the trial. There can be no doubt about the wisdom of these directions. [103] Rule 6 provides that where two or more proceedings are pending in the court, an order may be made that they be tried together if it appears to the court that the proceedings have a common question of law or fact, the relief claimed in them arises out of the same transaction or series of transactions, or “for any other reason”. An order under r. 6 is discretionary. [104] The purpose behind r. 6 is to avoid a multiplicity of proceedings and thereby prevent inconsistent dispositions, protect scarce judicial resources, and save expense to the parties. It also safeguards against a tactical decision to subject a party or parties to more than one action and, therefore, promotes fairness: see Wood v. Farr Ford Ltd. , 2008 CanLII 53848 (Ont. S.C.), at para. 23; Mohamed Imran Hanif v. Ontario College of Pharmacists, Her Majesty the Queen in Right of Ontario and AGO , 2013 ONSC 6991, 315 O.A.C. 368 (Div. Ct.), at para. 18. [105] It is readily apparent that the preconditions to the application of r. 6 were met. The four actions had common questions of law and fact. And, the relief claimed in the actions arose out of one or more of the transactions relating to the Lands. As the trial judge noted, at para. 23 of the Reasons, the direction that the four actions be tried together was made because the actions “involve all of the current disputes between these three protagonists with respect to their interests in the Lands”. [106] Further, the direction that the actions be tried together fulfilled the purpose which underlies r. 6. A single trial avoided a multiplicity of proceedings among the parties, prevented inconsistent dispositions relating to the Lands, protected scarce judicial resources, and saved the parties expense. In my view, it also does away with Romandale’s contention that Fram was a party only to its actions and not to the proceeding below. The four actions were tried together and a single judgment was rendered in respect of those actions. The fact that the Judgment sets out the relief granted in respect of each action separately does not alter the fact that Fram was a party to the proceeding below and, thus, has the right to appeal from the Judgment. [107] Furthermore, Romandale’s position on the first alleged threshold flaw flies in the face of the way in which these actions proceeded at trial. Although the actions were not formally consolidated, the trial of the actions was effectively consolidated, with the evidence being used on all issues and argument permitted on all issues by all parties. [108] At trial, Fram was permitted to lead evidence and make argument on the same issues it now raises on appeal. The Reasons show that both Fram and Kerbel argued the issues raised in the appeals; the trial judge repeatedly refers to Fram’s position on the issues and she often refers to Fram’s and Kerbel’s positions interchangeably. Had Romandale wished to take issue with Fram making argument and adducing evidence on the issues at trial, it was incumbent on Romandale to object at trial, which would have given Fram the opportunity to request to be added as a party. Having stayed silent at trial, Romandale cannot now take the position that Fram does not have standing on this appeal to raise and argue the issues it is pursuing. [109] Finally, I note that Romandale did not question the propriety of Fram’s appeal before the case management judge of this court who issued the order consolidating the appeals. It does not now lie in Romandale’s mouth to suggest that Fram is not entitled to pursue its appeal. [110] For these reasons, Fram’s appeal is not improper. B. The Second Alleged Threshold Flaw [111] Romandale’s second alleged threshold flaw is based on the new interpretation of the 2005 August Agreement it says that Fram and/or Kerbel advance on appeal. In my analysis of Issue #1, below, I explain that because of estoppel by convention, Romandale is barred from asserting that the buy-sell provisions in the COAs and the 2005 August Agreement could be utilized pre-SPA. The trial judge interpreted the 2005 August Agreement on the basis that the buy-sell provision could be utilized pre-SPA (Reasons, para. 291). That is, she interpreted it in a way that is impermissible because of the operation of estoppel by convention. Consequently, her interpretation of the 2005 August Agreement cannot stand and it is unnecessary to decide Issue #2. The allegedly new interpretation was made in the context of Issue #2. As it is unnecessary to decide Issue #2, it is also unnecessary to decide whether the Appellants committed the second threshold flaw as Romandale alleges. [112] Thus, the second alleged threshold flaw does not warrant the dismissal of these appeals. VII. analysis of fram’s issues Issue #1:     Did the trial judge err in failing to find that Romandale was estopped, based on estoppel by representation or by convention, from claiming that the Settlement Agreement breached the 2005 August Agreement? A. The Parties’ Positions Fram [113] Fram contends that, before 2015, Romandale repeatedly made two representations: (1) under the COAs, the buy-sell could not be exercised until after SPA; and (2) under the 2005 August Agreement, Kerbel could not cause Romandale to trigger the buy-sell in the COAs until after SPA (the “ Representations ”). It says that Romandale made the Representations and statements consistent with them in: its pleadings; Ms. Roman-Barber’s affidavits; its solicitors’ letters, both before and after the Settlement Agreement; and, Ms. Roman-Barber’s discovery evidence. Fram submits that the Representations formed the basis of a shared common understanding among the parties, and para. 5 was incorporated into the Settlement Agreement in reliance on the Representations and with Romandale’s full knowledge. It will be recalled that para. 5 of the Settlement Agreement states the parties’ intention that the purchase and sale of the Remaining Interest would take place after SPA. [114] Fram argues that estoppel by representation and estoppel by convention both operate to bar Romandale from reversing its position and claiming that para. 5 of the Settlement Agreement is a breach of the 2005 August Agreement. It contends that the trial judge made a palpable and overriding error in refusing to apply estoppel on the basis that Fram and Kerbel had not relied on the Representations or, if they did, that their reliance was unreasonable. [115] In terms of reliance, Fram says that the trial judge erred in dismissing its and Kerbel’s evidence that they relied on the Representations on the basis the evidence was simply “bald assertions”. Fram argues there is nothing “bald” about the change in course of action it and Kerbel took in entering into the Settlement Agreement. It contends that as a result of the Settlement Agreement, it gave up seeking specific performance of its contractual remedies and limited its damages claim against Romandale to 50% of the Lands, while Kerbel gave up 50% of its rights under the 2005 August Agreement. They did so based on the common understanding – perpetuated by Romandale and its lawyers – that post-SPA closing was consistent with the COAs and the 2005 August Agreement. [116] Further, Fram contends, there was nothing unreasonable about it and Kerbel’s reliance on Romandale’s Representations. Those Representations were made in a litigation context – through pleadings, affidavits, solicitors’ letters, and examination testimony. The very purpose of the Representations was to allow the courts and other parties to rely on them for notice and the truth of their contents. For example, when Ms. Roman-Barber swore her affidavit in 2007, she intended the court to rely on it in the injunction proceeding. The court did exactly that: Forestell J. accepted Ms. Roman-Barber’s evidence that the “original intent of the [2005 August Agreement] was that the sale to [Kerbel] of the remaining interest of Romandale in the Lands would not occur until some time after SPA”. If the court was entitled to rely on Romandale’s representation of its position Fram argues it was surely reasonable for Fram and Kerbel to do the same. [117] Fram says the trial judge erred in concluding that reliance was “totally unreasonable” in light of Romandale’s objection to the Settlement Agreement, because Romandale’s objection was not based on the timing of the buy-sell. [118] In terms of detriment, Fram submits that it would be unjust and unfair to permit Romandale to resile from the mutual assumptions or Representations. In 2010, Kerbel and it entered into the Settlement Agreement with the assistance of a judicial mediation and, at that time, all three parties agreed that the 2005 August Agreement would close post-SPA. Five years later in 2015, knowing the state of the Settlement Agreement, Romandale “upended the playing field” and changed its position to make an uncontroversial term in 2010 (i.e. para. 5) an allegedly repudiatory breach of the 2005 August Agreement. This, Fram contends, is unfair because it threatens to take away Fram and Kerbel’s entire economic interest in the 2005 August Agreement. Kerbel [119] On these appeals, Kerbel repeats and relies on Fram’s submissions on estoppel. However, because the trial judge did not deal with estoppel by convention, it falls to this court to decide that matter de novo . Consequently, I will set out a summary of Kerbel’s trial position on that issue. [120] At trial, Kerbel argued that estoppel by convention applied to bar Romandale from contending that, because of para. 5 in the Settlement Agreement, Kerbel breached the 2005 August Agreement by entering into the Settlement Agreement. It referred to the principles governing estoppel by convention, as set out in Ryan v. Moore , and argued that those principles squarely applied. [121] Kerbel identified the following as its shared understanding with Romandale when they entered into the 2005 August Agreement: because the sale of Romandale’s Remaining Interest would close after SPA, the 2005 August Agreement did not breach the COAs between Romandale and Fram (the “ Shared Understanding ”). Romandale repeatedly expressed the Shared Understanding after the 2005 August Agreement was entered into. This includes in the fall of 2010, during which time all three parties – Romandale, Fram and Kerbel – participated in the judicial mediation that took place in respect of the 2007 and 2008 Actions. Kerbel argued that was evidence that all three parties held and operated under the Shared Understanding. [122] Kerbel also pointed to the fact that even after Romandale resiled from the Settlement Agreement, it knew that Fram and Kerbel were continuing to discuss settlement on the basis of the Shared Understanding. It was only months after the Settlement Agreement was executed that Romandale, for the first time, took the position that by entering into the Settlement Agreement, Kerbel breached the 2005 August Agreement. Kerbel argued that Romandale was obliged to warn it, before the Settlement Agreement was executed, that it intended to change its position on the Shared Understanding. [123] Kerbel also contended that it would suffer detriment if Romandale were allowed to resile from the Shared Assumption. It had already given Romandale over $16 million in value under the 2005 August Agreement and, through the Settlement Agreement, it compromised its rights under that agreement. If Romandale were allowed to resile from the Shared Assumptions, Kerbel would lose the opportunity to close its purchase of the Remaining Interest under the 2005 August Agreement and develop the Lands. Romandale [124] Romandale says that Fram’s submissions on estoppel are premised on an erroneous oversimplification of the equitable doctrine of convention. It contends that, even if there was a shared assumption that the buy-sell could not be triggered under the 2005 August Agreement until after SPA, there was no transaction or dealing between Romandale and either Fram or Kerbel for which this shared assumption formed the basis. In making this argument, Romandale relies on para. 4 of Ryan v. Moore , in which the Supreme Court of Canada states: Estoppel by convention operates where the parties have agreed that certain facts are deemed to be true and to form the basis of the transaction into which they are about to enter . If they have acted upon the agreed assumption, then , as regards that transaction , each is estopped against the other from questioning the truth of the statement of facts so assumed if it would be unjust to allow one to go back on it. [Citations omitted; emphasis as added by Romandale.] [125] Thus, Romandale argues, neither Fram nor Kerbel can use estoppel by convention against Romandale to protect the Settlement Agreement. Because the Settlement Agreement was entered into between Fram and Kerbel only, estoppel by convention “may apply as between them but not [to] Romandale”. [126] As well, Romandale submits that Fram’s argument on estoppel starts with a misstatement about the nature and character of its position prior to the Settlement Agreement. It says that it made no representation upon which Fram or Kerbel could rely, nor did the parties have a shared assumption for the purposes of estoppel. [127] Its position in the 2007 Action was that the 2005 August Agreement was not a breach of the COAs. It says that the timing of the triggering of the buy-sell was irrelevant to whether Romandale had breached the COAs. To the extent Romandale asserted that the buy-sell in the 2005 August Agreement would be triggered after SPA, “this was just another way of Romandale asserting that the buy-sell under the [2005 August Agreement] could only be triggered when it was triggerable under s. 5.07 of the COAs, coupled with the mistake the parties and counsel had made about s. 5.07”. Given that the mistake was of no consequence to the matters in dispute in the 2007 Action, it went unnoticed, was not something the parties deliberated on, joined issue on, or turned their minds to. It did not form the basis of any of their dealings nor were they all of the mind that it would govern their future affairs. [128] Romandale also argues that the trial judge did not err in concluding that Fram and Kerbel had not established reliance. It says that the trial judge correctly gave no weight to either Mr. Giannone’s self-serving assertion of reliance in his affidavit evidence or to the recital in the Settlement Agreement. It contends that the evidence made clear that Fram and Kerbel were not relying on Romandale at all but, rather, crafted the Settlement Agreement to carry out a scheme in which they would immediately assume control over the development of the Lands for their benefit while putting off their purchase of the Lands for at least decades. [129] Furthermore, Romandale says, the trial judge did not err in finding that any reliance by Fram and Kebel was unreasonable. Just because a statement is made in the course of litigation does not mean it can automatically be relied on for the purposes of estoppel. It depends on the circumstances. Fram and Kerbel cannot have reasonably relied on Romandale’s assertions regarding the timing of the buy-sell in the 2005 August Agreement because that issue was not in dispute in the litigation prior to the Settlement Agreement being entered into. [130] Romandale also points to its objection to the Settlement Agreement, arguing that it does not matter whether its objection was based on para. 5 of that agreement. Its objection put Fram and Kerbel on notice that it would object to any settlement between them. Thus, they proceeded at their own risk. [131] Romandale also says that, given their position on these appeals, Fram and Kerbel could not have reasonably relied on a shared assumption that the buy-sell could only be triggered after SPA when entering into the Settlement Agreement. Their position on appeal is that Kerbel had an unfettered discretion to trigger the buy-sell in the 2005 August Agreement either before or after SPA. Thus, Romandale contends, they cannot be heard to say it was reasonable for them to rely on a clearly wrong and now abandoned interpretation. [132] Romandale also says Fram has not established that it would be unjust to allow it to correct its mistake or that Fram and Kerbel suffered any detriment. It cannot be unjust for a party to correct a mistake that is patently obvious on the express words of the contracts, to which all parties had access. Furthermore, Fram and Kerbel’s entry into the Settlement Agreement was a deliberate and inequitable scheme to tie up and control the Lands to Romandale’s exclusion while putting off their purchase for decades. [133] Moreover, Romandale submits that neither Fram nor Kerbel suffered any relevant detriment in entering into the Settlement Agreement. To the extent Fram suffered detriment by giving up 50% of its claim against Romandale, that detriment is moot because Fram’s claims in the 2007 and 2008 Actions were dismissed and are not being appealed. And, Kerbel presented no evidence of detriment. Romandale says that granting Fram an option to buy 50% of the Lands is not detriment: Kerbel granted the option in exchange for Fram giving up its claims against Kerbel. It was Kerbel’s choice to assign some litigation risk to being sued by Fram and to mitigate that risk by striking a deal with Fram. That Fram ultimately lost and Kerbel “paid” for nothing is irrelevant. B. Estoppel by Representation (1) Governing Legal Principles [134] In Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co. , [1970] S.C.R. 932, at pp. 939-40, the Supreme Court stated that the essential factors giving rise to estoppel by representation are: (1)     a representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made; (2)     an act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made; and (3)     detriment to such person as a consequence of the act or omission. [135] More recently in Ryan v. Moore , at para. 5, the Supreme Court referred to its much earlier decision in Page v. Austin (1884), 10 S.C.R. 132, at para. 164, to describe the doctrine of estoppel by representation as follows: Estoppel by representation requires a positive representation made by the party whom it is sought to bind, with the intention that it shall be acted on by the party with whom he or she is dealing, the latter having so acted upon it as to make it inequitable that the party making the representation should be permitted to dispute its truth, or do anything inconsistent with it. (2) Application of the Law [136] I agree with the trial judge that Fram and Kerbel fail in their claim of estoppel by representation. However, I do so for different reasons than those of the trial judge. [137] It will be recalled that, at trial, Fram and Kerbel argued that they entered into the Settlement Agreement in reliance on Romandale’s representation that the 2005 August Agreement was valid and that the buy-sell provision in it was to be performed or completed after SPA. The trial judge concluded that estoppel by representation was not made out because Fram and Kerbel had not proven that they relied on the representation and, if they had, their reliance was unreasonable. That is, the trial judge concluded that Fram and Kerbel failed to prove the second essential factor giving rise to estoppel by representation. [138] In my view, however, Fram and Kerbel fail on the first essential factor giving rise to estoppel by representation. [139] Canadian Superior Oil Ltd. describes the first essential factor as a representation “intended to induce a course of conduct” on the part of the person to whom the representation was made. In Ryan v. Moore , this factor is expressed as the requirement that a positive representation be made “with the intention that it shall be acted on” by the party to whom the representation is made. On the facts, Romandale did not make a representation with the intention that Fram and Kerbel should act on it. [140] In the fall of 2010, Fram, Kerbel, and Romandale were attempting to settle the 2007 and 2008 Actions. After reaching a settlement agreement in principle, the parties continued to negotiate the terms of the settlement. During that process, Fram and Kerbel were made aware that Romandale continued to maintain its position that the 2005 August Agreement was valid and the buy-sell provisions in it and in the COAs could not be utilized until SPA had been achieved for the Lands. [141] However, knowledge of Romandale’s position and the fact its position remained unchanged from the time that it entered into the 2005 August Agreement until December 2010, when Fram and Kerbel entered into the Settlement Agreement, is not tantamount to Romandale representing that it would not change its position going forward. [142] Further and in any event, Fram and Kerbel’s knowledge of Romandale’s position does not meet the requirement in the first essential element that Romandale made a representation of its position with the intention of inducing Fram and Kerbel to enter into the Settlement Agreement or otherwise act on it. [143] Consequently, Fram and Kerbel failed to prove the first essential factor giving rise to estoppel by representation. For these reasons, I agree with the trial judge that estoppel by representation was not made out. C. Estoppel by Convention (1) Governing Legal Principles [144] At para. 59 of Ryan v. Moore , the Supreme Court states that the following criteria form the basis of the doctrine of estoppel by convention: (1)     The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly). [Emphasis in original.] (2)     A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position. (3)     It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position. [145] On the first criterion – which the Court refers to as “Assumption Shared and Communicated” – the Court provides the following additional guidance, at paras. 61-62: The crucial requirement for estoppel by convention, which distinguishes it from the other types of estoppel, is that at the material time both parties must be of “a like mind”. The court must determine what state of affairs the parties have accepted, and decide whether there is sufficient certainty and clarity in the terms of the convention to give rise to any enforceable equity. While it may not be necessary that the assumption by the party raising estoppel be created or encouraged by the estopped party, it must be shared in the sense that each is aware of the assumption of the other. Mutual assent is what distinguishes the estoppel by convention from other types of estoppel. … Thus, it is not enough that each of the two parties acts on an assumption not communicated to the other. Further, the estopped party must have, at the very least, communicated to the other that he or she is indeed sharing the other party’s ( ex hypothesi ) mistaken assumption. [Citations omitted.] [146] The court also offers further guidance on the second and third criteria, namely, reliance and detriment. It notes that the requirement of detrimental reliance lies at the heart of true estoppel and that detrimental reliance encompasses two distinct, but interrelated concepts: reliance and detriment: at paras. 68-69. [147] Reliance requires a finding that the party seeking to establish the estoppel changed its course of conduct by acting, or abstaining from acting, in reliance upon the assumption, thereby altering its legal position: at para. 69. [148] In terms of detriment, the Court offers this guidance, at para. 73 of Ryan v. Moore . Once the party seeking to establish estoppel shows that it acted on a shared assumption, it must prove detriment. For the plea to succeed, it must be unjust or unfair to allow a party to resile from the common assumption. A change from the presumed legal position will facilitate the establishment of detriment “because there is an element of injustice inherent within the concept of the shared assumption – one party has acted unjustly in allowing the belief or expectation to ‘cross the line’ and arise in the other’s mind”: at para. 73, citing Sean Wilken, Wilken and Villiers: The Law of Waiver, Variation and Estoppel , 2nd ed. (Oxford: Oxford University Press, 2002), at p. 228. (2) Application of the Law [149] Unlike estoppel by representation, I must approach the issue of estoppel by convention on a de novo basis. I do so because, while the parties expressly raised and argued the issue of estoppel by convention at trial, the trial judge did not address it. [150] I will address each of the three criteria that form the basis of estoppel by convention: (a) assumption shared and communicated; (b) reliance; and (c) detriment. (a) Assumption Shared and Communicated [151] The first criterion for estoppel by convention requires that the parties’ dealings were based on a shared assumption of fact or law: Ryan v. Moore , at para. 59. Thus, I must determine what state of affairs the parties accepted and decide whether there was sufficient certainty and clarity in the shared assumptions to give rise “to an enforceable equity”: Ryan v. Moore , at para. 61. [152] I deal first with whether the alleged shared assumptions are sufficiently certain and clear. [153] In the fall of 2010, when Fram, Kerbel, and Romandale were trying to settle the 2007 and 2008 Actions, the parties based their dealings on two assumptions: (1) the buy-sell provision in the COAs could not be triggered until after SPA had been achieved for the Lands; [9] and (2) under the 2005 August Agreement, Kerbel could not cause Romandale to trigger the buy-sell under the COAs until after SPA [10] (the “ Shared Assumptions ”). There is no ambiguity or lack of clarity about the Shared Assumptions: they have sufficient certainty and clarity to satisfy that requirement in the first criterion of estoppel by convention. [11] [154] It is worth recalling at this point that I did not find statements to the same effect as the Shared Assumptions to amount to representations within the meaning of estoppel by representation. That is because a common or shared assumption, as that term is used in estoppel by convention, is not the same thing as a representation. As the Supreme Court explained, at para. 62 of Ryan v. Moore , an assumption need not be created or encouraged by the estopped party: it must simply be shared, in the sense that each party is aware that the assumption is held by the other(s). As the Supreme Court stated, “Mutual assent is what distinguishes the estoppel by convention from other types of estoppel”. [155] Having found the Shared Assumptions were sufficiently certain and clear, I must now determine whether the parties were of “a like mind”. In making this determination, I must consider whether the three parties: (1) held the Shared Assumptions at the material times; (2) communicated to the others that they held the Shared Assumptions; and (3) based their dealings on them: Ryan v. Moore , at paras. 61-62. In my view, the following documents establish these three matters. Thus, the first criterion for estoppel by convention is met. (i) The Settlement Agreement and Drafts Leading to It [156] The final Settlement Agreement is clear evidence that Fram and Kerbel held the Shared Assumptions, communicated that to one another, and based their dealings on them. This is evident from the first, second, and sixth preambles, and para. 5 of the Settlement Agreement: · The first preamble recites that Fram and Romandale are co-owners of the Lands and parties to the COAs and, under the COAs, each has a buy-sell right in respect of the other’s interest but that right “may only be exercised after [SPA] has been obtained for the Lands”. · The second preamble recites that Romandale and Kerbel are parties to the 2005 August Agreement under which Romandale agreed to sell to Kerbel its Remaining Interest “at such time as Romandale could exercise its buy-sell rights under the Buy-Sell Provisions of the [COAs]”. · The sixth preamble recites that Fram and Kerbel “have agreed to settlement so that the right of [Kerbel] to acquire Romandale’s Remaining Interest in the Lands pursuant to the [2005 August Agreement] may be exercised 60 days after [SPA] for the Lands is obtained”. · Paragraph 5 provides that “[i]t is the intention of [Fram and Kerbel] that the purchase and sale of Romandale’s Remaining Interest in the Lands pursuant to these Minutes of Settlement will take place after [SPA] for the Lands has been obtained”. [157] Though Romandale was not a party to the final Settlement Agreement, its conduct in the fall of 2010 up to and including when Fram and Kerbel executed the Settlement Agreement demonstrates that it too held the Shared Assumptions, communicated that to Fram and Kerbel, and based its dealings with them on the Shared Assumptions. [158] It will be recalled that in September of 2010, the three parties came to an agreement in principle at the judicial mediation. Based on the agreement in principle, counsel for Fram prepared “very preliminary” draft minutes of settlement and sent the draft to counsel for Romandale under cover of a letter dated September 8, 2010. The preliminary draft was short; it consisted of four preambles and seven paragraphs. The fourth preamble and para. 6 of that draft reflect the Shared Assumptions. · The fourth preamble reads as follows: WHEREAS the parties have agreed to settlement so that the right of [Kerbel] to acquire Romandale’s Remaining Interest in the Lands pursuant to the [2005 August Agreement] shall be exercised 60 days after [SPA] for the Lands is obtained · Paragraph 6 provides: [Fram] does not by this agreement consent to the transaction referred to in paragraph 2 of the [2005 August Agreement]. Romandale hereby acknowledges that this settlement agreement does not constitute [Fram’s consent] … and that it is the intention of the parties that the purchase and sale of Romandale’s entire Remaining Interest in the Lands pursuant to these Minutes of Settlement will take place 60 days after [SPA] for the Lands has been obtained. [159] After the preliminary draft was circulated, counsel for the three parties continued to exchange draft settlement agreements and discuss other possible provisions that might be included. [160] In a letter dated September 24, 2010, counsel for Romandale wrote to counsel for Kerbel and Fram and set out the areas on which the parties were in agreement, including “[t]hat the sale of each parcel will take place when that particular parcel achieves Secondary Planning Approval”. [161] Under cover of a letter dated September 29, 2010, counsel for Fram sent Romandale’s counsel (with a copy to Kerbel’s counsel) a proposed final draft. The letter stated that if the draft was acceptable, the “draft stamp” would be removed and it would be circulated for signature. The proposed final draft settlement agreement contained essentially the same fourth preamble as that in the preliminary draft (set out above) and, of a total of seven paragraphs, three reflect the Shared Assumptions. · Paragraph 1 provided that “the injunction ordered by Forestell J. July 26, 2007 shall continue in respect of each of the two parcels comprising the Lands … until 60 days after [SPA] has been granted in respect of that particular parcel of the Lands”. · Paragraph 4 provided that “Fram Kerbel and Romandale shall complete the sale of the entire Remaining Interest of Romandale in the Lands on the terms described in paragraph 2 of the [2005 August Agreement], 60 days after [SPA] has been obtained for each of the two parcels comprising the Lands”. · Paragraph 7 provided that “ [t]he parties hereby acknowledge that in making these minutes of settlement, it is their common intention that the purchase and sale of the Romandale’s Remaining Interest in the Lands pursuant to these Minutes of Settlement shall take place in respect of each of the two parcels of the Lands after [SPA] for each parcel has been obtained , and that the closing of the purchase and sale for each parcel shall take place 60 days after [SPA] for that particular parcel of the Lands has been obtained. [Emphasis added.] [162] In response, by letter dated September 30, 2010, counsel for Romandale provided comments on the draft and asked that the final settlement agreement include, among other things, a provision explicitly requiring the parties to do nothing to hinder or delay the obtaining of SPA for the Lands. He wrote, “As we were specifically advised at the mediation that this would not be a problem, the wording should be inserted in the Minutes”. As well, counsel for Romandale asked that a “drop-dead” date for the contemplated sale of the Lands be inserted in case the Lands never achieved SPA: At present, there exists the possibility that one or both parcels may not receive [SPA]. Such a failure to address that point may call into question the validity of the agreements or at least pose a practical problem for the parties if [SPA] is not achieved (at least in our lifetimes) for either of the parcels. [163] The parties continued to communicate about the draft settlement agreement for some weeks. In October 2010, Romandale began taking issue with the draft agreements, which I discuss in more detail below. Ultimately, in a letter dated November 12, 2010, Fram’s counsel wrote to Romandale’s counsel (with a copy to Kerbel’s counsel), stating that it appeared Romandale was resiling from the settlement agreement so steps would be taken to reschedule the trial of the 2007 and 2008 Actions. Fram’s counsel enclosed a copy of the draft settlement agreement that Fram and Kerbel intended to enter into. The enclosed agreement was substantially the same as the final Settlement Agreement, including the provisions that reflected the Shared Assumptions. [164] Never once during the judicial mediation or in the period that followed leading up to the Settlement Agreement – despite the many communications among counsel which reflected the Shared Assumptions – did Romandale ever object to the Shared Assumptions or the terms in the drafts that reflected them. On the contrary, during that period, Romandale expressly affirmed the parties’ shared understanding that the sale and purchase of Romandale’s Remaining Interest would occur after SPA – as, for example, in its counsel’s letters of September 24 and September 30, 2010, described above. [165] In my view, what transpired among the three parties during this period alone satisfies the requirements of the first criterion for estoppel by convention. The following documents reinforce this conclusion. (ii) Letters between Counsel [166] In a letter dated September 22, 2009, Romandale’s corporate counsel wrote to Kerbel’s counsel to address the matter of participation in the NMLG. He stated that, under the 2005 August Agreement, Kerbel was to act as Romandale’s agent and attorney “for the purposes of taking the steps necessary to proceed to [SPA] and thereby trigger the buy-sell rights under the [COAs]”. This is communication by Romandale to Kerbel of its belief in the Shared Assumptions. [167] Romandale also communicated its belief in the Shared Assumptions to Fram. By letter dated January 28, 2011, counsel for Romandale wrote to counsel for Fram stating: [Romandale] was and is the registered owner of 90% of the [Lands]. It conditionally sold those lands to [Kerbel] by way of an agreement dated August 2005. The condition could only be satisfied by either a) secondary plan approval (which has not been achieved); b) or the consent of [Fram] to the transaction. [168] This letter was sent more than a month after Fram and Kerbel entered into the Settlement Agreement. It demonstrates that Romandale continued to believe the Shared Assumptions even after the Settlement Agreement was executed. (iii) Pleadings and Evidence at Trial [169] The pleadings and evidence at trial further demonstrate that all three parties held the Shared Assumptions in the relevant time period. In addition, they show that each party made manifest representations of its belief in the Shared Assumptions and communicated that to the other parties. [170] At trial, Fram and Kerbel’s positions rested on the Shared Assumptions. Their pleadings – including Fram’s Fresh as Amended Reply and Kerbel’s Statement of Defence and Crossclaim in the 2007 Action – reflect their shared belief that SPA was required before the buy-sell provision in the COAs and the 2005 August Agreement could be triggered. [171] Romandale’s Statement of Defence in the 2007 Action (before it was amended in 2015), its Statement of Defence in the 2008 Action, and its Notice of Motion to stay the 2007 Action all explicitly stated that the buy-sell provision in the 2005 August Agreement could not be triggered until after SPA was obtained for the Lands. [172] Furthermore, Ms. Roman-Barber’s affidavits sworn July 11, 2007, and August 23, 2007, and her discovery evidence in February 2009 communicated – to Fram, Kerbel, and beyond – her (and therefore, Romandale’s) belief that the sale of the Remaining Interest under the 2005 August Agreement was conditional on SPA being obtained for the Lands. (b) Reliance [173] Having established that the first criterion for estoppel by convention is met, I must now determine whether Fram and Kerbel acted in reliance on the Shared Assumptions. For the purpose of estoppel by convention, reliance requires a finding that the party seeking to establish estoppel changed its course of conduct by acting (or abstaining from acting) in reliance on the shared assumption, thereby altering its legal position: Ryan v. Moore , at para. 69. [174] In my view, Fram and Kerbel satisfy the reliance criterion. Paragraph 5 of the Settlement Agreement is based on the Shared Assumptions. Fram and Kerbel entered into the Settlement Agreement in reliance on the Shared Assumptions. As a result of having entered into the Settlement Agreement, their respective legal positions under the COAs and the 2005 August Agreement were altered. An overview of the alteration to their legal positions that resulted from having entered into the Settlement Agreement is as follows. [175] Before entering into the Settlement Agreement, Fram’s legal position in respect of the Lands was governed by the COAs between it and Romandale. In the 2007 Action, it claimed that Romandale had breached the prohibition against Disposition in the COAs by entering into the 2005 August Agreement. If Fram succeeded in its claim, Fram was entitled to, among other things: a declaration that the offending agreement (i.e., the 2005 August Agreement) was void under s. 5.03 of the COAs; bring proceedings for specific performance under s. 6.02(b) of the COAs; and purchase Romandale’s interest in the Lands at 95% of their fair market value under s. 6.02(d) of the COAs. As a result of entering into the Settlement Agreement, Fram gave up those rights: pursuant to s. 1 of the Settlement Agreement, Fram agreed that it would not seek a declaration that the 2005 August Agreement was void and that it would limit its damages claims against Romandale to 50% of the Lands. [176] Before entering into the Settlement Agreement, Kerbel’s legal position in respect of the Lands was governed by the 2005 August Agreement between it and Romandale. The Conditional Provision in that agreement gave Kerbel the opportunity to acquire 100% ownership of the Lands. After entering into the Settlement Agreement, that changed. Pursuant to para. 2 of the Settlement Agreement, if Kerbel acquired ownership of the Lands, Kerbel was obliged – at Fram’s option – to allow Fram to acquire a 50% undivided interest in the Lands on the same terms and conditions as Kerbel had acquired the Remaining Interest from Romandale. [177] Thus, it can be seen, Fram and Kerbel’s legal positions were altered as a result of relying on the Shared Assumptions. [178] I do not view my determination that Fram and Kerbel meet the reliance criterion for estoppel by convention as running afoul of the trial judge’s determination of no reliance on the part of Fram and Kerbel or, if there was reliance, it was unreasonable. That is because the trial judge made her reliance determination based on the legal principles governing estoppel by representation whereas I decided reliance in accordance with the legal principles governing estoppel by convention. The two legal frameworks are different, the test for reliance in each is different, and, therefore, the determination of reliance under each may be different without being inconsistent. [179] However, if, as Romandale urges, the trial judge’s determination on reliance is a finding of fact for which deference must be shown, I would set it aside on the basis that it is the result of palpable and overriding error. [180] On the evidence set out above, it is clear that Fram and Kerbel relied on the Shared Assumptions in entering into the Settlement Agreement. A plain reading of the Settlement Agreement alone shows that. A contrary finding – namely, that Fram and Kerbel did not rely on the Shared Assumptions in entering into the Settlement Agreement – is simply not available on the evidence. Thus, such a finding would be the result of palpable and overriding error. [181] The trial judge also made a palpable and overriding error in determining that, if there was reliance, it was unreasonable. In making this determination, the trial judge accepted that Romandale put Fram and Kerbel on notice that it objected to any settlement agreement between them in respect of the Lands without its consent: Reasons, at para. 129. Romandale says that it objected “clearly and unequivocally” to the Settlement Agreement “including Fram and Kerbel deferring the closing of the 2005 August Agreement by decades rather than carrying it out immediately in 2010, as Romandale expressly asked them to do”. In support of this argument, it relies on its letter to Fram, dated October 25, 2010. [182] I do not agree. The relevant portions of Romandale’s letter of October 25, 2010, are as follows: More importantly, your correspondence only confirms our client’s belief that the relationship contemplated by the proposed Minutes of Settlement cannot work . Simply put, the benefit of the August 2005 Agreement cannot be assigned in whole or in part to your client without our client’s consent . In order to give that consent, not only would real estate counsel have to draft extensive documentation, but there remain at present simply some points to which our client cannot agree, in particular, the registration of the injunction against title to the lands for which Romandale continues to hold legal title; and arbitration over a process which Romandale has effectively controlled without objection from any party for 5 years now . To avoid these problems, your client, together with Mr. Kerbel, can formulate an offer to purchase our client’s interest in the lands immediately . Failing that, we should appear before Justice Moore and request a trial date to adjudicate all issues. If you and [counsel for Kerbel] believe that a settlement of the August 2005 Agreement can be effected without the consent of the 90% land holder, then that issue will likely also form the subject matter of the trial . [Emphasis added.] [183] Nothing in this letter suggests that Romandale objected to the Settlement Agreement because of para. 5. That is, there is nothing in the letter to indicate that Romandale objected to the expressed intention in para. 5 that the purchase and sale of the Remaining Interest was to take place after SPA. Instead, the letter shows that Romandale resiled from the Settlement Agreement over matters such as registration of the injunction on title to the Lands and arbitration. [184] Further, Romandale’s call to Fram and Kerbel to “formulate an offer to purchase [Romandale’s] interest in the lands immediately” does not indicate that Romandale believed the buy-sell provisions in the COAs and the 2005 August Agreement could be triggered at any time, pre or post-SPA. The parties all knew Fram could consent to the sale of Romandale’s Remaining Interest before SPA and, with that consent, the purchase and sale of Romandale’s Remaining Interest could proceed immediately. Romandale’s call to Fram and Kerbel to make an immediate purchase is merely a request that the parties proceed with the sale under Fram’s consent. It says nothing about Romandale’s assumptions regarding the buy-sell provisions. [185] Until 2015, Romandale never retracted its communications on the Shared Assumptions and never purported to. In fact, as I describe above, Romandale confirmed in writing its belief in the Shared Assumptions in a letter in January 2011 – after Fram and Kerbel executed the Settlement Agreement – when it again made manifest that the sale of its Remaining Interest under the 2005 August Agreement could not take place until after SPA or with Fram’s consent. [186] As Romandale did not communicate to Fram and Kerbel that it no longer held the Shared Assumptions until 2015, in the circumstances of this case, it was not unreasonable for Fram and Kerbel to rely on the Shared Assumptions when they entered into the Settlement Agreement in 2010. As Fram points out, the court relied on Romandale’s assertions to the same effect in the injunction proceeding. In light of that, it can scarcely be said to be unreasonable that Fram and Kerbel also relied on them. (c) Detriment [187] The third criterion for establishing estoppel by convention is detriment. As the parties seeking to establish estoppel by convention, Fram and Kerbel must prove that if Romandale were allowed to resile from the Shared Assumptions, they would suffer detriment since there had been a change from their presumed legal positions: Ryan v. Moore , at paras. 59, 69. To succeed in proving detriment, Fram and Kerbel must show that it would be unjust or unfair to allow Romandale to resile from the Shared Assumptions: Ryan v. Moore , at paras. 59, 73 and 74. A change from their presumed legal positions will facilitate the establishment of detriment: Ryan v. Moore , at para. 73. [188] As I have explained, Fram and Kerbel entered into the Settlement Agreement in reliance on the Shared Assumptions and thereby altered their legal positions under the COAs and the 2005 August Agreement respectively. While the change in their legal positions facilitates the establishment of detriment, it remains their burden to show that it would be unjust or unfair to allow Romandale to resile from the Shared Assumptions: Ryan v. Moore , at para. 74. One need only consider what transpired at the trial below and the resulting Judgment to find they satisfy that burden. [189] Paragraph 5 of the Settlement Agreement reflects the parties’ Shared Assumptions that the purchase and sale of Romandale’s Remaining Interest would take place after SPA had been obtained. The trial judge accepted Romandale’s submission that para. 5 was a breach of the 2005 August Agreement on Kerbel’s part. In so doing, the trial judge permitted Romandale to resile from the Shared Assumptions. Having determined that Kerbel was in breach, the trial judge declared the 2005 August Agreement at an end and excused Romandale from performance of its obligations under that agreement. Thus, it can be seen, if Romandale had not been permitted to resile from the Shared Assumptions, Kerbel would not have been found to have been in breach of the 2005 August Agreement and it would not have lost the right to compel Romandale to fulfill its obligations under that agreement. In the circumstances of this case, it was unjust and unfair to Kerbel that Romandale was permitted to resile from the Shared Assumptions. [190] It was also unfair and unjust to Fram. In accordance with the Settlement Agreement, Fram discontinued its claims against Kerbel in the 2007 and 2008 Actions and gave up significant claims against Romandale under the COAs. However, the quid pro quo under the Settlement Agreement was that Fram would have the opportunity to acquire 50% ownership of the Lands once Kerbel bought Romandale’s Remaining Interest. Because Romandale was permitted to resile from the Shared Assumptions and was consequently excused from performance under the 2005 August Agreement, Romandale was no longer obliged to sell its Remaining Interest to Kerbel. Thus, Fram gave up its claims for nothing. [191] Accordingly, in my view, it would be unjust and unfair to allow Romandale to resile from the Shared Assumptions. In reaching this conclusion, I reject Romandale’s submission to the contrary. [192] Romandale makes two arguments in support of its submission that it would be neither unjust nor unfair to allow it to resile. First, it argues that it cannot be unjust or unfair that it be allowed to correct the mistaken Shared Assumptions because the mistake as to the timing of the buy-sell provisions was “patently obvious” on the express words of the contracts to which all parties had access. Second, it argues that Fram and Kerbel’s entry into the Settlement Agreement “was a deliberate and inequitable scheme to tie up and control the Lands (to Romandale’s exclusion) while putting off their purchase for at least decades”. [193] Respectfully, Romandale’s first argument misunderstands the detriment criterion in the doctrine of estoppel by convention. Detriment is not about the correctness of the Shared Assumptions or how obviously incorrect they might have been. Detriment is a question of whether it would be unjust or unfair to allow Romandale to resile from the Shared Assumptions – regardless of whether the Shared Assumptions were correct or were patently incorrect. [194] Romandale’s second argument is that if it was not permitted to resile, Fram and Kerbel would get away with their “deliberate and inequitable scheme” to tie up the Lands for decades without having to pay for them. This argument does not withstand scrutiny. Before trial, Fram gave its consent to Kerbel’s purchase of Romandale’s Remaining Interest. Accordingly, had Romandale wished, it could have completed the sale of its Remaining Interest to Kerbel right then. In short, by the time of trial, there was no threat that, as a result of the Settlement Agreement, the Lands would be tied up for decades without Romandale being paid for its Remaining Interest in them. [195] At all material times during its dealings with Fram and Kerbel, Romandale manifestly represented to Fram and Kerbel that it held the Shared Assumptions. Fram and Kerbel then relied on the Shared Assumptions and entered into the Settlement Agreement. As a result of that, Fram and Kerbel’s legal positions were altered. In the circumstances, it would be unjust and unfair to permit Romandale to resile from the Shared Assumptions. Consequently, Fram and Kerbel have met their burden on the detriment criterion. (d) Romandale’s Overriding Submission on Estoppel by Convention [196] Before finally determining whether estoppel by convention applies, I must address Romandale’s overriding submission that Fram and Kerbel cannot avail themselves of the doctrine because there was no contract between it and either Fram or Kerbel based on the Shared Assumptions – only Fram and Kerbel were parties to the Settlement Agreement. [197] It will be recalled that Romandale relies on para. 4 of Ryan v. Moore for this submission. For ease of reference, I set out para. 4 again, below. Estoppel by convention operates where the parties have agreed that certain facts are deemed to be true and to form the basis of the transaction into which they are about to enter . If they have acted upon the agreed assumption, then, as regards that transaction , each is estopped against the other from questioning the truth of the statement of facts so assumed if it would be unjust to allow one to go back on it. [Citations omitted; emphasis as added by Romandale.] [198] I accept that the language in para. 4 of Ryan v. Moore may be seen as suggestive of a contractual relationship among the parties. However, the facts of Ryan v. Moore show that the doctrine of estoppel by convention is not limited to such situations. [199] Ryan v. Moore concerned a three-vehicle accident that took place in 1997. Peter Ryan (the “Plaintiff”) and Rex Gilbert Moore were two of the drivers involved in the accident. Soon after the accident happened, the Plaintiff began corresponding with the adjuster assigned by Mr. Moore’s insurer. [200] Mr. Moore died in 1998 from causes unrelated to the accident. Letters of Administration were granted to his administratrix in February 1999. [201] The Plaintiff started a personal injury action against Mr. Moore in October 1999. That claim was within the two-year limitation period in the Limitations Act , S.N.L. 1995, c. L-16.1. [202] The insurer learned of Mr. Moore’s death in May 2000; the Plaintiff learned of it in September 2000. In November 2000, the insurer refused to settle the Plaintiff’s claim on the basis it was outside the limitation period in the Survival of Actions Act , R.S.N.L . 1990, s. S-32, which imposes a six-month limitation period from the granting of Letters of Administration. The insurer then applied to have the action struck as being out of time. The trial judge dismissed the application. [203] An appeal and cross-appeal were taken to the Newfoundland Court of Appeal. A majority of the Court of Appeal held that estoppel by convention barred the insurer and Mr. Moore’s estate from pleading that Mr. Moore died in 1998 or that Letters of Administration were granted in February 1999. Thus, they could not invoke the shorter limitation period in the Survival of Actions Act . [204] The insurer and Mr. Moore’s estate appealed to the Supreme Court. The Supreme Court allowed the appeal and struck the Plaintiff’s statement of claim because it had been brought outside the six-month period prescribed by the Survival of Actions Act . [205] The Supreme Court held that the doctrine of estoppel by convention had not been made out. It found that none of the letters exchanged by the Plaintiff and the insurer with respect to the Plaintiff’s personal injury claim proved the existence of a common assumption. The mere fact that communications occurred between the parties did not establish that they assumed that Mr. Moore was alive. And, the fact the parties were conferring without regard to the limitation period did not establish a shared assumption that the limitation period defence would not be relied on. There was never any discussion by the Plaintiff of the limitation period. [206] Thus, while the Supreme Court in Ryan v. Moore refers to the Plaintiff, the insurer, and Mr. Moore’s estate as “parties”, they were not parties to a contract. Despite that, the Supreme Court considered whether the doctrine of estoppel by convention operated. In fact, estoppel by convention was the central legal point on which the appeal hinged. Further, when the Supreme Court concluded that the doctrine was inapplicable, it made no mention of the absence of a contract among the parties. Rather, the Court found the doctrine to be inapplicable because the correspondence among the parties did not prove the existence of a shared assumption among the parties. It found that such things as the subject line in the correspondence, which read “Your Insured: Rex Moore”, lacked sufficient clarity and certainty to demonstrate a common belief that he was alive. It further found that even if one could conclude that there was a common assumption, the Plaintiff had never communicated that he shared it. [207] Accordingly, the applicability of the doctrine of estoppel by convention does not depend on the parties having entered into a contract with one another. Rather, as the Supreme Court states in para. 59 of Ryan v. Moore , the question is whether the “parties’ dealings” were based on a shared assumption of fact or law. In this case, while Romandale was not a party to the Settlement Agreement, it was actively involved in the negotiations leading up to that agreement. As I explain above, during that period, the parties’ correspondence (among other things) clearly demonstrate that their “dealings” were based on the Shared Assumptions. (e) Conclusion on Estoppel by Convention [208] In the judicial mediation in September 2010, Fram, Kerbel, and Romandale communicated to one another their common belief in the Shared Assumptions. They reached a settlement agreement in principle which reflected those assumptions. The Shared Assumptions were manifest in the preliminary draft settlement agreement and all the drafts that followed through to the final Settlement Agreement. Romandale participated in ongoing negotiations of the Settlement Agreement and received copies of all the drafts, even after it resiled from that agreement. Never once during that process did Romandale dispute the validity of the Shared Assumptions. Rather, at several points it expressly reiterated the Shared Assumptions in communications it sent to Fram and Kerbel. [209] When Fram and Kerbel entered into the Settlement Agreement, they relied on their unqualified understanding that all three parties and their counsel held the Shared Assumptions. As a result of having entered into the Settlement Agreement, their legal positions were altered. Allowing Romandale to resile from the Shared Assumptions years after the Settlement Agreement was concluded would cause detriment to both Fram and Kerbel. [210] As Fram and Kerbel satisfied the three criteria that form the basis for doctrine of estoppel by convention, Romandale was estopped from resiling from the Shared Assumptions and the trial below should have been conducted accordingly. Issue #2:     Did the trial judge err in determining that, by entering into the Settlement Agreement, Kerbel breached the 2005 August Agreement? [211] After Romandale terminated the DMAs with Bordeaux in early 2005, Bordeaux responded with an action against Romandale and Fram, alleging the termination was invalid and of no force and effect. The litigation was ongoing in August 2005 when Romandale and Kerbel entered into the 2005 August Agreement. The trial judge interpreted the 2005 August Agreement as permitting Kerbel to delay triggering the buy-sell provisions until after SPA only if the Bordeaux litigation dragged on (emphasis added) (the “ Interpretation ”). Based on the Interpretation, the trial judge concluded that Kerbel repudiated the 2005 August Agreement by entering into the Settlement Agreement because, as a result of para. 5 of the Settlement Agreement, the purchase and sale of the Remaining Interest could not take place until after SPA. [212] Fram argues that the trial judge’s Interpretation is erroneous. It contends that she made four extricable errors of law in reaching the Interpretation: (1) failure to give the text of the 2005 August Agreement primacy; (2) accepting impermissible subjective evidence as factual matrix evidence; (3) misinterpreting the “time is of the essence” clause in the 2005 August Agreement; and (4) failing to look at commercial reasonableness at the time of contract execution and from the viewpoint of both parties. [213] In light of my conclusion on the doctrine of estoppel by convention, Romandale is barred from asserting that the buy-sell provisions in either the COAs or the 2005 August Agreement could be exercised before SPA. Because the trial judge’s Interpretation permits for the buy-sell provision in the 2005 August Agreement to be exercised before SPA, the Interpretation is contrary to the Shared Assumptions and cannot stand. Consequently, I need not address the errors in contractual interpretation that Fram contends the trial judge made. [214] While I need not address the alleged errors in contractual interpretation, nothing in these reasons is to be taken as approving the trial judge’s interpretation of the 2005 August Agreement or her application of the principles of contractual interpretation. VIII. analysis of KERBEL’S issues Issue #3:     Did the trial judge err in concluding that Kerbel repudiated the 2005 August Agreement? [215] In addition to finding that Kerbel breached the 2005 August Agreement by entering into the Settlement Agreement with Fram, the trial judge also found that, by entering into the Settlement Agreement, Kerbel failed to act in good faith, breached the fiduciary duty she found Kerbel owed Romandale, breached the “time is of the essence” clause in the 2005 August Agreement, and repudiated the 2005 August Agreement. As I have explained, estoppel by convention operates to bar Romandale from attacking the validity of para. 5 of the Settlement Agreement. As para. 5 of the Settlement Agreement was the basis on which the trial judge concluded that Kerbel repudiated the 2005 August Agreement, that conclusion must fall. Accordingly, it is not necessary to address the issues (and related sub-issues) that Kerbel raises respecting the trial judge’s conclusion that by entering into the Settlement Agreement, Kerbel repudiated the 2005 August Agreement. [216] However, nothing in these reasons is to be taken as approving the trial judge’s determination that Kerbel repudiated the 2005 August Agreement by entering into the Settlement Agreement, her application of the principles governing repudiation, her finding that Kerbel owed a fiduciary duty to Romandale and breached it, her finding that Kerbel breached its contractual duty of good faith, or her analysis and conclusion that, as a result of the Settlement Agreement, Romandale was deprived of substantially the whole benefit of the 2005 August Agreement. Issue #4:     Did the trial judge err in concluding that the 2005 August Agreement was frustrated? A. The Parties’ Positions Kerbel [217] Kerbel’s overarching position on appeal rests on this foundational legal proposition: the general rule is that it is not the function of the court to rewrite a contract for the parties nor is it the court’s role to relieve one of the parties against the consequences of an improvident contract: Pacific National Investments Ltd. v. Victoria (City of) , 2004 SCC 75, [2004] 3 S.C.R. 575, at para. 31. Kerbel says that the trial judge violated this general rule and, after determining that enforcement of the 2005 August Agreement was not in Romandale’s interests, allowed that conclusion to drive her reasoning. However, Kerbel says, the question for the trial judge was not whether the 2005 August Agreement turned out to be a good deal for Romandale but, rather, whether the defences Romandale asserted to the enforcement of the 2005 August Agreement were tenable in law and fact. [218] In terms of frustration specifically, Kerbel submits that the trial judge erred when she concluded, at para. 349 of the Reasons, that the 2005 August Agreement was frustrated because “unforeseen planning changes resulted in SPA not only being delayed for decades but also putting the two farms on different development tracks”. Kerbel says that the doctrine of frustration does not apply for two reasons. [219] First, it notes that frustration applies when a supervening event alters the nature of the parties’ obligations to such an extent that to compel performance would require a party to do something “radically different” than what they had agreed to under their contract. It says that the change in the development timeline for the Lands did not fundamentally alter what the parties contracted for under the 2005 August Agreement. The parties had agreed that Romandale would sell and Kerbel would buy its Remaining Interest in the Lands. The thing the parties bargained for has not changed – only the timing of the closing of the transaction has. [220] Second, Kerbel says that a contract is not frustrated if the supervening event was contemplated by the parties at the time of contracting and was provided for, or deliberately chosen not to be provided for, in the contract. It argues that to the parties’ knowledge, the planning and development process is fluid, unpredictable, and outside the parties’ control. There was never any certainty as to the development timeline for the Lands and the fact that governmental decisions altered the timetable was within the parties’ contemplation. They point to this court’s decision in the Triple R Lands Litigation, in which that precise point is made: First Elgin Mills Developments Inc. v. Romandale Farms Limited , 2014 ONCA 576, 324 O.A.C. 153, at para. 32. [221] Further, Kerbel argues, contrary to the trial judge’s finding, the parties’ agreement to a fixed purchase price in this context does not lead to a “commercial absurdity”. The parties deliberately chose to enter into an agreement for a fixed purchase price of the Remaining Interest that was significantly above market value. In doing so, Romandale assumed the risk of what a delay in closing would entail. Fram [222] Fram adopts Kerbel’s position on all issues it raises on appeal. To avoid repetition, on the balance of the issues, I will not reiterate Fram’s position. Romandale [223] Romandale submits that Kerbel has not demonstrated any palpable and overriding errors in the trial judge’s finding that the 2005 August Agreement was frustrated when unforeseen planning changes delayed SPA for decades and put the Lands on different development tracks. It makes two key arguments in support of this submission. [224] First, it says that Kerbel is wrong that the change in the development timeline did not fundamentally change the nature of the contract because it simply delayed closing. The trial judge found that a short closing horizon was part of the “pith and substance” of the contract and, in any event, that SPA was at most years away, not decades. A delay of decades is “radically different” than what the parties agreed to. Further, Romandale says Kerbel failed to address the trial judge’s finding on frustration based on the farms being placed on different development tracks. [225] As well, Romandale says Kerbel is wrong that legislative changes cannot frustrate a contract. Relying on Capital Quality Homes Ltd. v. Colwyn Construction Ltd. (1975), 61 D.L.R. (3d) 385 (Ont. C.A.) and Focal Properties Ltd. v. George Wimpey (Canada) Ltd. (1975), 73 D.L.R. (3d) 387 (Ont. C.A.), it says that changes in law or policy will frustrate a contract and relieve the parties of performance where the “common venture” is frustrated. The trial judge found that the parties’ “common venture” of providing for the most expedient sale of the Lands, without breaching the COAs, was no longer attainable. [226] Romandale says that proof of a delayed timeline for development and separate development tracks for the farms resulted in radically different circumstances than those contemplated in the 2005 August Agreement. It argues this is apparent from the terms of the that agreement: it was silent on how to close if the Lands achieved SPA at different times; the farms were treated as a single property; there were no terms on how to treat the farms individually; and, it made no commercial sense when closing was decades in the future. This, Romandale argues, would result in an irreconcilable divergence of interests when the express terms of the 2005 August Agreement provide it is conditional for the benefit of both parties. [227] Second, Romandale says that Kerbel is wrong that the parties contemplated the planning changes when entering into the 2005 August Agreement or deliberately did not provide for such changes. It argues that Kerbel’s reference to this court’s 2014 decision regarding the Triple R Lands is misleading. Even if the parties were aware that the process of developing the Lands was fluid, unpredictable, and would take time, this does not mean they contemplated SPA being deferred for decades and that the Lands would be put on separate development tracks. [228] Romandale contends that the trial judge’s factual findings are important – that when the 2005 August Agreement was made, the parties expected the Lands would achieve SPA by 2010 or soon thereafter and not decades later or with the farms on separate development tracks. It says these are “radical” changes in the planning law and process and Kerbel has not challenged them. B. Governing Legal Principles [229] A contract is frustrated when – without the fault of either party – a supervening event alters the nature of a party’s obligations under the contract “to such an extent that to compel performance despite the new and changed circumstances would be to order [the party] to do something radically different from what the parties agreed to under [their] contract”: Naylor Group Inc. v. Ellis-Don Construction Ltd. , 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 55; Perkins v. Sheikhtavi , 2019 ONCA 925, 16 R.P.R. (6th) 42, at para. 15. [230] However, a contract is not frustrated if the supervening event results from a voluntary act of one of the parties or if the parties contemplated the supervening event at the time of contracting and provided for, or deliberately chose not to provide for, the event in the contract: Perkins , at para. 16; Capital Quality Homes , at p. 626 . [231] The party claiming frustration bears the burden of proving the constituent elements necessary to establish frustration: Perkins , at para. 17. C. Application of the Law [232] The trial judge concluded that the 2005 August Agreement was frustrated because unforeseen planning changes resulted in SPA being delayed by decades and put the Snider and McGrisken Farms on different development tracks. She said these matters rendered performance of the Conditional Provision “radically different from that which the parties agreed to”: at para. 349. In my view, the trial judge erred in law in so concluding: the planning changes do not amount to a “supervening event”, as that term is used in the doctrine of frustration. [233] As previously noted, at para. 55 of Naylor Group , the Supreme Court stated that a contract is frustrated when – without the fault of either party – a supervening event alters the nature of a party’s obligations under the contract to such an extent that to compel performance would be to order the party to do something “radically different” from that to which it had agreed under the contract. Neither the change to the timing of the development of the Lands nor the fact that the development paths of the two farms now diverge render Romandale’s obligations under the 2005 August Agreement radically different from that to which it agreed. Therefore, the planning changes are not a supervening event and the agreement is not frustrated. [234] This conclusion follows inescapably from a consideration of the 2005 August Agreement as a whole, including the Conditional Provision. When Romandale and Kerbel entered into the 2005 August Agreement, all of their obligations under it were to be performed in short order with one exception: their obligations under the Conditional Provision. Those obligations were clearly spelled out: Romandale was to sell its Remaining Interest in the Lands to Kerbel at a price of $160,000 per acre: (1) with Fram’s consent to the transaction or (2) through Romandale’s exercise of the buy-sell provision in the COAs, after the Lands achieved SPA. The parties specified the two methods by which the transaction could be completed – rather than simply setting a date for its completion – because they wanted to ensure that the 2005 August Agreement did not run afoul of Romandale’s pre-existing legal obligations to Fram under the COAs. [235] While the planning changes altered the timing horizon for the development of the Lands and the development paths of the Snider and McGrisken Farms, those changes did not radically alter what the parties had agreed to under the 2005 August Agreement. In fact, the planning changes did not alter the parties’ obligations under the Conditional Provision in any way. What changed were the parties’ expectations about when SPA would be obtained for the Lands. Romandale remained obliged to sell its Remaining Interest to Kerbel, either by obtaining Fram’s consent to the transaction or by using the buy-sell provisions in the COAs, once SPA for the Lands was achieved. And Kerbel remained obliged to pay Romandale $160,000 per acre for the Remaining Interest. The fact that the expected timing for SPA changed did not alter those obligations – and nothing in the 2005 August Agreement suggests otherwise. For example, there is no “drop-dead date” provision in the agreement. With due respect to the trial judge, the boiler-plate statement at para. 7(c) of the 2005 August Agreement that “time is of the essence” cannot be construed to mean that a “short closing horizon” was part of the “pith and substance” of the contract. Further and in any event, if Romandale was troubled by the prospect of a lengthy delay in closing based on SPA, it could have sought Fram’s consent to the transaction. On the record, Romandale took no steps in that regard, despite having expressly undertaken in the Conditional Provision “to use reasonable best efforts to obtain” Fram’s consent. [236] Because the parties’ obligations under the Conditional Provision are not altered by the planning changes, it cannot be said that compelling performance of the 2005 August Agreement would be to order Romandale to do something “radically different” from that to which it agreed. In short, in the circumstances of this case, the planning changes do not amount to a supervening event. [237] Further, even if the planning changes were to amount to a supervening event, the 2005 August Agreement is not frustrated because the supervening event was within Romandale and Kerbel’s contemplation when they entered into the agreement and they did not provide for it: Perkins , at para. 16. Of this there can be no doubt, given this court’s findings in First Elgin Mills . [238] It will be recalled that First Elgin Mills dealt with the transaction in the 2005 August Agreement in which Kerbel purchased the Triple R Lands from Romandale (acting on behalf of the Roman family). The purchase price for the Triple R Lands was calculated on the basis that the land was all developable. However, the land was not all developable so Kerbel sought an adjustment to the purchase price in accordance with the terms of the 2005 August Agreement. Romandale resisted, saying that the purchase price adjustment clause had expired. The matter was litigated. This court ultimately found in favour of Kerbel. At paras. 31-32 of First Elgin Mills , Lauwers J.A. writing for the court, stated: The process of moving raw land through the land development process, is complex, time consuming, and expensive. The outcome is frequently uncertain. The parties to this litigation are sophisticated and experienced land developers and were legally represented throughout the proceedings. The principals’ affidavits show that, when they entered into the [2005 August Agreement], they were aware that the process of developing the [Lands] would be fluid and the outcome somewhat unpredictable, and that it would take time – perhaps years – to finalize the [Lands’] development potential. There were provincial, regional, and local requirements to be met, any of which could affect the [Lands’] development potential ... [239] Thus, it can be seen, this court found that Romandale and Kerbel were aware of the vagaries of the planning process when they entered into the 2005 August Agreement. That is, the possibility of planning changes was within the parties’ contemplation when they entered into the 2005 August Agreement. Despite that, they made no provision for such a possibility – as, for example, through the insertion of a “drop-dead” provision. Therefore, even if the planning changes were a supervening event, the 2005 August Agreement is not frustrated. [240] I conclude on this issue by noting that, while Romandale is correct that legislative changes can frustrate a contract, this applies when the legislation destroys the very foundation of the agreement: Capital Quality Homes , at para. 29. As I have explained, that is not this case. Issue #5:     Did the trial judge err in concluding that the 2005 August Agreement was void for mistake? A. The Parties’ Positions Kerbel [241] Kerbel submits that the trial judge erred in law in finding that the 2005 August Agreement was void for mistake because the parties were operating on the mistaken understanding that SPA would occur “within a relatively short time period”, not decades after the agreement was entered into. [242] It argues that the doctrine of common mistake requires the plaintiff to show that, as a result of the common mistake, the subject matter of the contract became something essentially different from what it was believed to be. Moreover, on the theory that the mistake destroys the consensual nature of the bargain, the mistake must have existed at the time that the contract was made. However, Kerbel says, there was no mistake in this case. Both parties considered SPA to be years away when they executed the 2005 August Agreement. The fact that an assumption turns out to be incorrect, as a result of subsequent events, does not affect the consensus at the time the contract was made. [243] In any event, Kerbel says, the change to the development timeline did not fundamentally change the subject matter of the contract. Romandale [244] Romandale submits that Kerbel has not articulated a basis for disturbing the trial judge’s conclusions on mistake. It says that Kerbel is referring to the common law doctrine of mistake in its submissions to this court whereas the trial judge relied on the equitable doctrine of mistake. [245] Romandale contends that the trial judge found that the parties were mistaken as to the time horizon for achieving SPA and that change in the development timeline did fundamentally alter the subject matter of the contract. B. Governing Legal Principles [246] At common law, a contract will be void for mistake when the parties were under a common mistake that changes the subject matter of the contract into something essentially different from what the parties believed it to be: Miller Paving Ltd. v. B. Gottardo Construction Ltd. , 2007 ONCA 422, 86 O.R. (3d) 161, at paras. 22, 30. The mistake must have existed at the time the contract was made: Zeitel v. Ellscheid (1991), 85 D.L.R. (4th) 654 (Ont. C.A.), at para. 44, aff’d [1994] 2 S.C.R. 142. [247] In equity, the court may relieve for common mistake when it would be “unconscientious”, in all the circumstances, to allow a contracting party to avail itself of the legal advantage it had obtained and granting relief can be done without injustice to third parties. The contract is liable to be set aside if the parties were under a common misapprehension as to the facts or their respective rights, provided the mistake was fundamental and the party seeking to set aside the contract was not at fault: Miller Paving , at para. 23. C. Application of the Law [248] In my view it matters not whether the trial judge decided this issue based on the common law or equitable principles governing mistake. Mistake is not made out under either. [249] At common law, the court’s jurisdiction to set aside a contract for mistake arises when the parties are under a common mistake that changes the subject matter of the contract into something “essentially different” from what the parties believed it to be: Miller Paving , at para. 30. As I explain above on the issue of frustration, that is not this case. The parties’ obligations were clearly spelled out in the 2005 August Agreement: Romandale was to sell its Remaining Interest to Kerbel at a price of $160,000 per acre, either with Fram’s consent or through Romandale’s exercise of its buy-sell rights under the COAs. The planning changes made to the development of the Lands did not alter those obligations. The parties were aware of the vagaries of the planning process when they entered into the 2005 August Agreement. They knew that the process of developing the Lands was fluid and the outcome unpredictable. The fact that events did not play out according to the parties’ initial time estimates does not somehow elevate those estimates into a common mistake such as to vitiate their consent to the deal in the 2005 August Agreement. As the subject matter of the 2005 August Agreement remained essentially the same as what the parties believed it to be when they entered into the agreement, mistake is not made out at common law. [250] In equity, the court may set aside a contract for common mistake when it would be “unconscientious”, in all the circumstances, to allow a contracting party to avail itself of the legal advantage it obtained, provided it can be done without injustice to third parties. I address the issues of unjustness and unfairness above, in my discussion of estoppel by convention. I will not repeat myself. The considerations set out in that analysis show why, even if Kerbel could be seen to have obtained a legal advantage because of the changes in the planning process, it is not “unconscientious” to enforce the 2005 August Agreement. In any event, there was no fundamental mistake upon which to base common mistake in equity. [251] I conclude on the equitable doctrine of common mistake by observing that the court is to take into consideration “all of the circumstances” when deciding whether it would be unconscientious to enforce the contract. The circumstances at the time of trial included the fact that Fram had provided its consent to the transaction in the Conditional Provision. Consequently, the transaction could have closed immediately. The trial judge did not take that into consideration. This is evident from her conclusion that enforcing the 2005 August Agreement would be unconscionable because the transaction had been put off “for decades”. In the face of Fram’s consent, the transaction could have closed immediately. Thus, it was a palpable and overriding error to find that the transaction had been put off for decades. Moreover, in my view, the trial judge erred in law in failing to take into account the relevant consideration of Fram’s consent when determining whether it would be unconscionable to enforce the 2005 August Agreement. For these reasons, Romandale failed to make out the requirements for common mistake in equity and the trial judge erred in finding otherwise. Issue #6:     Did the trial judge err in finding Kerbel’s claim was limitation-barred? A. The Parties’ Positions Kerbel [252] Kerbel submits that the trial judge made palpable and overriding errors of fact and law in finding that its claim was limitation-barred. It makes three arguments in support of this submission. [253] First, until 2015, Romandale alleged that the 2005 August Agreement was terminated by Kerbel’s breach in reducing the net developable acreage of the Lands; it sought damages in the alternative. It was only in 2015 that Romandale claimed it would not comply with the 2005 August Agreement in any event, and Kerbel started the 2016 Action shortly thereafter. [254] Second, the trial judge’s finding that Kerbel discovered its claim in 2011 ignores Master Graham’s ruling on December 21, 2012. [12] In that ruling, Master Graham dismissed Romandale’s motion for leave to amend its pleadings to allege that Kerbel had breached the 2005 August Agreement by entering into the Settlement Agreement. Kerbel says it was entitled to rely on the ruling and that the trial judge’s reasoning leads to an anomalous and unreasonable result. In order to bring its action in time, Kerbel would have had to commence an action by 2013 for a declaration that the Settlement Agreement did not breach the 2005 August Agreement but, in 2012, Master Graham had already reached that conclusion. [255] Third, even if Kerbel was aware in 2011 that Romandale viewed the 2005 August Agreement to be at an end, the trial judge erred in law in finding that the limitation period began to run as of that date. At its highest, Romandale’s statement to Kerbel that it was not going to comply with the 2005 August Agreement amounted to an anticipatory breach of contract, not an actual breach of contract. An anticipatory breach does not terminate or discharge the contract. Where the innocent party does not accept the anticipated breach and continues to treat the contract as subsisting, it does not “discover” its claim for the purposes of the Limitations Act – and the limitation period does not begin to run – until the breach has occurred and the innocent party has suffered some damage. In this case, Kerbel made it clear that it did not accept Romandale’s anticipatory breach of the 2005 August Agreement and considered the agreement to continue in effect. Therefore, the limitation period did not begin to run as of 2011. Romandale [256] Romandale says that Kerbel’s submission that it had no reason to commence an action until 2015 is contradicted by the evidence, as is Kerbel’s assertion that it did not accept Romandale’s “anticipated repudiation” and continued to treat the agreement as subsisting. As the trial judge found, by 2011 Romandale was no longer acting in accordance with the 2005 August Agreement. Under para. 5 of that agreement, Romandale was obliged to cede control over development to Kerbel but it was not complying with that obligation. Kerbel’s counsel sent a letter in February 2011 asserting that Romandale was breaching the agreement and its conduct was actionable. Romandale did not comply even after that letter. The manner in which Romandale was breaching the 2005 August Agreement demonstrated that it did not ever intend to sell the Lands to Kerbel. The conduct was not ambiguous: Kerbel was on notice that if it wanted specific performance it could not sit on its rights. [257] Furthermore, Romandale argues, Kerbel was not entitled to rely on the decisions of Master Graham and Kiteley J. in the pleadings motion to prevent the running of the limitation period. Those decisions did not reach a conclusion on the merits of the impact of the Settlement Agreement on the 2005 August Agreement. All that was decided was that Romandale’s proposed amendment was not tenable in law. B. Governing Legal Principles [258] An anticipatory breach of contract occurs when one party to a contract, by express language or conduct, or as a matter of implication from what it has said or done, repudiates its contractual obligations before they fall due: Ali v. O-Two Medical Technologies Inc. , 2013 ONCA 733, 118 O.R. (3d) 321, at para. 22, citing G.H.L. Fridman, The Law of Contract in Canada , 6th ed. (Toronto: Carswell, 2011), at p. 585. [259] An anticipatory breach does not, in itself, terminate the contract. Once the offending party shows its intention not to be bound by the contract, the innocent party has a choice. The innocent party may accept the breach and elect to sue immediately for damages, in which case the innocent party must “clearly and unequivocally” accept the repudiation to terminate the contract. Alternatively, the innocent party may choose to treat the contract as subsisting, continue to press for performance, and bring the action only when the promised performance fails to materialize. However, by choosing the latter option, the innocent party is bound to accept performance if the repudiating party decides to carry out its obligations: Ali, at para. 24. [260] Section 4 of the Limitations Act provides that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” Section 5(1)(a) sets out the factors for determining when a party discovers a claim. However, where the innocent party does not accept the repudiation of the contract, the limitation period does not begin to run until the breach actually occurs: Ali , at paras. 26-27. C. Application of the Law [261] The trial judge found that the two-year limitation period governing Kerbel’s claim for specific performance began running in February 2011 because, by that time, Romandale’s conduct showed that it “intended to remain the owner of the Lands” and “from its point of view, the “Conditional [Provision] was dead” (Reasons, at para. 403). That is, the trial judge concluded that Romandale had repudiated the 2005 August Agreement by February 2011 and Kerbel knew that. Consequently, the trial judge held that the 2016 Action was brought out of time. In my view, the trial judge made a palpable and overriding error in finding that the two-year limitation period began running in 2011. To explain why, we must review the situation between Romandale and Kerbel in February 2011 and the trial judge’s findings on their conduct at that time. [262] Under para. 5 of the 2005 August Agreement, Romandale gave Kerbel “exclusive control” over the development process for the Lands. Nonetheless, by 2011, Ms. Roman-Barber (and, at her direction, those working for her) was actively attempting to shut Kerbel out of the development planning process. In a letter dated February 17, 2011 (“ Kerbel’s February 2011 Letter ”), from Kerbel’s counsel to Romandale’s counsel, Kerbel complained about Romandale’s conduct, stated it was a breach of the 2005 August Agreement, demanded that Romandale confirm to the NMLG that Kerbel’s planning consultant had the sole authority to represent the Lands, and threatened to commence proceedings if Ms. Roman-Barber did not comply with the terms of para. 5 of the 2005 August Agreement. [263] By letter dated February 25, 2011, Romandale’s counsel responded to Kerbel’s February 2011 Letter (the “ Responding Letter ”). In the Responding Letter, counsel for Romandale denied that Ms. Roman-Barber had breached the 2005 August Agreement and asserted that his client had, at all times, complied with the terms of that agreement. The Responding Letter also stated that Romandale was considering whether Kerbel’s “purported settlement with [Fram] is in breach of the [2005 August] Agreement”. [264] At para. 146 of the Reasons, the trial judge summarized what transpired between Kerbel and Romandale in the relevant time period (i.e. December 2010 to February 2011). Her summary includes references to Kerbel’s February 2011 Letter and the Responding Letter. Paragraph 146 ends with the trial judge’s conclusion that the evidence was clear “that Romandale continued to exclude Kerbel from participation in the development of the Lands and Kerbel took no action as threatened in its letter of February 17, 2011” (the “ First Finding ”). [265] Based on a consideration of precisely the same conduct as that which she considered in making the First Finding, the trial judge found, at para. 403 of the Reasons, that Kerbel was aware that Romandale “intended to remain the owner of the Lands and that from its point of view the Conditional [Provision] was dead” (the “ Second Finding ”). [266] The two findings are very different. The First Finding is specific and limited: in February 2011, Romandale was excluding Kerbel from participation in the development of the Lands. The Second Finding is that Romandale’s conduct put Kerbel on notice that Romandale had repudiated the Conditional Provision by acting as if it “was dead”. [267] Thus, the question becomes: are the two findings reconcilable? They are not, either on the facts or the law. [268] Factually, the Second Finding cannot stand in light of Romandale’s Responding Letter. In that letter, Romandale’s counsel denied that his client was in breach of the 2005 August Agreement and also stated that Romandale was considering whether the Settlement Agreement was a breach of the 2005 August Agreement. Clearly, the Responding Letter contains no express repudiation of its obligations under the Conditional Provision. On the contrary, in the Responding Letter, Romandale affirms that the 2005 August Agreement is operating, that it is complying with it, and that it is considering its position under the 2005 August Agreement as a result of Kerbel having entered into the Settlement Agreement. [269] In terms of the law, the Second Finding was not open to the trial judge either. In the Reasons on this issue, when the trial judge makes the Second Finding, she does not explicitly refer to anticipatory breach or the legal principles that govern it. However, based on the parties’ positions on this issue, it appears that she made the Second Finding based on those principles. On that assumption, the trial judge was considering Romandale’s language and conduct in the relevant period to determine whether it could be construed as a repudiation of its obligations under the Conditional Provision before they became due for performance. In other words, the trial judge was considering whether Romandale had committed an anticipatory breach of the 2005 August Agreement by indicating that it would not comply with its obligations under the Conditional Provision. Romandale made no express assertion to that effect. Therefore, the Second Finding must have been based on Romandale’s conduct. However, as I have just explained, in light of the Responding Letter in which Romandale affirmed the 2005 August Agreement, its conduct cannot be so construed. [270] Thus, there was no anticipatory breach by Romandale of its obligations under the Conditional Provision in 2011 and the limitation clock did not begin ticking. [271] Romandale’s anticipatory repudiation of the 2005 August Agreement occurred for the first time in 2015 through its express statement to that effect by its new counsel. As the innocent party, Kerbel had the choice whether to accept the repudiation or treat the 2005 August Agreement as subsisting. It elected to accept the anticipatory breach and commenced the 2016 Action, which was within the two-year limitation period. [272] I note that Romandale points to other findings the trial judge made regarding Romandale’s conduct after Fram and Kerbel entered into the Settlement Agreement, which Romandale says demonstrate that it treated the 2005 August Agreement as dead. These findings relate to events that occurred after February 2011. As the trial judge based her determination on Kerbel having discovered its claim by February 2011, it is unnecessary to consider Romandale’s conduct falling after that time. [273] I conclude on this issue with the following two points. First, it is trite law that not every breach of a contract amounts to a repudiation. By February 2011, Kerbel was aware that Romandale was in breach of para. 5 of the 2005 August Agreement because of its conduct respecting the development process for the Lands. However, that breach was not a repudiation of the Conditional Provision. Second, even if Romandale’s conduct could be construed as a repudiation of the Conditional Provision, it was an anticipatory breach. As such, the limitation period did not begin running unless Kerbel accepted the repudiation ( Ali , at paras. 26-27) and that Kerbel did not do. On the contrary, as discussed above, Kerbel protested Romandale’s conduct in its February 2011 Letter and affirmed the validity of the 2005 August Agreement. Kerbel then continued its work with the NMLG in the development process and maintained its position in the various lawsuits that the 2005 August Agreement was valid and enforceable. Thus, Romandale’s breach of its obligations relating to the development process by February 2011 could not have started the limitation clock running. Issue #7:     Did the trial judge err in concluding that Kerbel was not entitled to specific performance of the 2005 August Agreement? A. The Parties’ Positions Kerbel [274] Kerbel submits that the trial judge erred in law in rejecting its claim for specific performance because she ignored the uniqueness of the Lands to Kerbel. Instead, the trial judge focused entirely on whether the Lands were capable of valuation and whether substitute properties were available. [275] Kerbel gives five reasons for its contention that the Lands have a peculiar or special value to it. [276] First, Kerbel already owns a 4.75% undivided interest in the Lands. It purchased that interest with the express intention that it would become the owner of all of the Lands. For that reason, Romandale and it never contemplated what a co-owner relationship would look like (unlike Romandale and Fram which entered into COAs). If specific performance is not ordered, Romandale and Kerbel will be forced to remain as co-owners of the Lands, a relationship that neither expected nor wanted. Granting specific performance, however, would allow the parties to put an end to their “fraught – and highly litigious – relationship”. [277] Second, in light of this court’s ruling in the Triple R Lands Litigation, Kerbel is entitled to set off the purchase price adjustment for those lands from the purchase price it is to pay Romandale for the Remaining Interest. Such a price reduction is not available for any other property that might come on the market and gives the Lands a quality that cannot be duplicated. [278] Third, Kerbel has already made significant investments – in time, money, and expertise – in the development of the Lands and surrounding properties. [279] Fourth, Kerbel entered into all of the transactions in the 2005 August Agreement with a view to its long-term plan to secure large tracts of undeveloped land for the purposes of development and construction. The transactions in the 2005 August Agreement included its purchase of the Triple R Lands, which adjoins the Lands, and a right of second refusal on the Elgin South Property. [280] Fifth, Kerbel is not seeking specific performance of a purely executory contract. It is seeking performance of a contract which it has already substantially performed. The transactions in the 2005 August Agreement were intertwined and formed part of a package. Kerbel has upheld its end of the bargain by assuming the BNS mortgage, purchasing the initial 4.75% interest in the Lands, and purchasing the Triple R Lands. [281] Kerbel also submits that the trial judge erred in finding its claim for specific performance was barred by laches. It says that, in determining whether there has been delay amounting to laches, the main considerations are acquiescence on its part and any change of position by Romandale arising from reasonable reliance on Kerbel’s acceptance of the status quo. Kerbel says neither of those considerations applied. It never acquiesced and, as the trial judge found, there was no change to the status quo after the Settlement Agreement. [282] Finally, Kerbel takes issue with the trial judge’s statement at para. 406 of the Reasons that, because Romandale had spent years investing significant time, effort, and money into the Lands, it would be “unjust” to disrupt that by granting specific performance. It notes that the 2005 August Agreement required Romandale to cooperate in the development of the Lands and there is no injustice or prejudice that follows from compliance with its legal obligations. To the extent that Romandale incurred development costs, it can seek reimbursement from Kerbel under the terms of the 2005 August Agreement, just as it did in the past. Romandale [283] Romandale submits that this court owes a high degree of deference to the trial judge’s exercise of discretion in refusing to grant specific performance. It argues that the trial judge did not ignore the uniqueness of the Lands to Kerbel – she rejected Kerbel’s claim of uniqueness because she found Mr. Kerbel’s own expert evidence contradicted his bald assertion that the Lands were unique and because the Lands were “just an investment” for Kerbel. [284] Further, Romandale says, the trial judge considered whether substitute properties were available and concluded that the undeveloped Lands were not unique to Kerbel, a developer engaged in a profit-seeking venture, and there were plenty of substitute properties available. Romandale says that Kerbel has not articulated any palpable and overriding errors in the trial judge’s conclusion. [285] As for the five arguments that Kerbel advances for why the Lands are special and unique to it, Romandale says they are simply re-argument, which the trial judge was entitled to reject, as she did. Romandale says that Kerbel has not pointed to a palpable and overriding error in the trial judge’s determination, therefore it must stand. [286] On laches, Romandale says that the trial judge found both acquiescence and reliance and Kerbel has not cited any evidence to show the findings were the result of palpable and overriding error. B. Governing Legal Principles [287] Specific performance is not to be ordered for breach of contract unless damages are inadequate. When damages are found to be inadequate, it is generally because of the unique nature of the property bargained for. It is for this reason that specific performance has historically been granted in cases involving the purchase and sale of real property: Erie Sand & Gravel Ltd. v. Series’ Farms Ltd. , 2009 ONCA 709, 97 O.R. (3d) 241, at paras. 110-11. [288] However, it cannot be assumed that damages for breach of contract for the purchase and sale of real estate will be an inadequate remedy in all cases. Specific performance should not be granted absent evidence “the property is unique to the extent its substitute would not be readily available”: Semelhago v. Paramadevan , [1996] 2 S.C.R. 415, at para. 22. Whether a substitute is readily available depends on the facts of the particular case. Therefore, uniqueness is a fact-specific inquiry: Di Millo v. 2099232 Ontario Inc. , 2018 ONCA 1051, 430 D.L.R. (4th) 296, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 55. [289] Laches is an equitable doctrine that offers a defence to delayed equitable claims. Mere delay is insufficient to trigger laches. The party asserting laches must establish one of two things: (1) acquiescence on the claimant’s part; or (2) a change of its position arising from reasonable reliance on the claimant’s acceptance of the status quo : Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 145-47; Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada , 2015 ONCA 764, 128 O.R. (3d) 658, at paras. 8-11. C. Application of the Law [290] The trial judge declined to order specific performance largely because she concluded that the Lands were not unique to Kerbel. In my view, she erred in three ways in reaching that conclusion. [291] First, the trial judge erred in law in relying on the evidence of the experts called to provide a value for the Lands to find that the Lands were not unique to Kerbel. The experts had used the direct comparison approach to value the Lands.  That approach required the experts to find comparable properties with similar characteristics to the Lands. While the direct comparison approach is an accepted method for valuing land, it does not speak to whether a property is “unique” in the legal sense. Put another way, because the direct comparison approach does not address the legal requirements for determining whether land is unique, it cannot be used as a proxy for that purpose. It was an error in law to do so. [292] Second, it was a palpable and overriding error for the trial judge to find that the only evidence on uniqueness was Mr. Kerbel’s “bald assertion” to that effect. In so doing, the trial judge neglected to consider the following points: (1) Kerbel already owns a 4.75% undivided interest in the Lands and fully owns the adjoining property, the Triple R Lands. No other property has both these characteristics; (2) In light of this court’s ruling in the Triple R Lands Litigation, Kerbel is entitled to set off the purchase price adjustment for the Triple R Lands from the purchase price it is to pay Romandale for the Remaining Interest. Such a price reduction is not available for any other property that might come on the market and gives the Lands a quality that cannot be duplicated; (3) Kerbel has already made significant investments – in time, money, and expertise – in the development of the Lands; (4) With Romandale’s full knowledge and consent, Kerbel entered into the package of intertwined transactions in the 2005 August Agreement in order to secure a large tract of undeveloped land for the purposes of development and construction. The transactions in the 2005 August Agreement include Kerbel’s purchase of the Triple R Lands, which adjoins the Lands, and a right of second refusal on the Elgin South Property; and, (5) Kerbel is not seeking specific performance of a purely executory contract. It is seeking performance of a contract which it has already substantially performed. On the trial judge’s findings, Romandale received over $16.7 million of immediate value under the 2005 August Agreement. The “upfront” money Kerbel paid Romandale was to satisfy Romandale’s need for liquidity. Kerbel has upheld its end of the bargain by assuming the BNS mortgage, purchasing the initial 4.75% interest in the Lands, and purchasing the Triple R Lands. [293] Third, a property is unique if there is no readily available substitute property: Semelhago , at para. 22. One method of proving that there is no readily available substitute is to show that the property has a quality that cannot be readily duplicated elsewhere: Erie Sand , at paras. 115-16. The above considerations establish that the Lands have qualities that cannot be readily – if at all – duplicated elsewhere. They also show that, contrary to the trial judge’s finding, the Lands are not merely an investment for Kerbel with any number of suitable substitutes available. The Lands are unique to Kerbel. [294] While the trial judge’s analysis focused on the uniqueness of the Lands, I also view her to have fallen into error in failing to consider the effects of refusing to grant specific performance. In this case, if specific performance is not ordered, Romandale and Kerbel will remain co-owners of the Lands. As Kerbel points out, that situation was not expected, wanted, or provided for in the 2005 August Agreement. And, as the events of the past 12 years have shown, the situation is unworkable. This consideration militates in favour of finding that damages are an inadequate remedy. [295] The trial judge gave laches as a further reason for refusing to grant specific performance. In my view, she erred in law in this regard because Romandale made out neither of the two requirements enunciated in Manitoba Metis Federation . [296] First, Kerbel did not acquiesce in Romandale’s attempts to shut it out of the development process. As discussed above, counsel for Kerbel wrote to counsel for Romandale in February 2011, complaining about this conduct, stating it was a breach of Romandale’s obligations under the 2005 August Agreement, and demanding that Romandale confirm to the NMLG that Kerbel’s planning consultant had the sole authority to represent the Lands. Moreover, despite Romandale’s attempts to shut Kerbel out of the development process, Kerbel continued to be actively involved in the development process through the NMLG. Kerbel also continued to maintain that the 2005 August Agreement was in force until – in response to Romandale’s declaration in 2015 that it would not perform its obligations under the 2005 August Agreement – it started the 2016 Action. [297] Second, Romandale did not change its position in reliance on Kerbel’s alleged acceptance of the status quo. The trial judge found, at paras. 118-19 and 339 of the Reasons, that there was no change in Romandale’s behavior and the “status quo did not change” after Kerbel and Fram entered into the Settlement Agreement. [298] Further, to the extent that the trial judge found reliance based on Romandale’s investment of time, money and effort into the Lands’ development, in my view she erred. Under the terms of the 2005 August Agreement, Romandale was obliged to cooperate with Kerbel in development of the Lands. Reliance cannot be claimed when it is a matter of compliance with one’s legal obligations. And, in any event, Romandale can seek reimbursement for development costs from Kerbel under the terms of the 2005 August Agreement, just as it did in the past. IX. FRAM’S CLAIM FOR DAMAGES [299] Fram asks that it be awarded damages of $11,997,500 “for its loss respecting 50% of the Lands that go to Kerbel under the Settlement Agreement”. Its very brief submissions are as follows. The 2005 August Agreement was a breach of the prohibition against Dispositions in s. 5.03 of the COAs. Upon breach, pursuant to s. 6.02(d) of the COAs, Romandale was obliged to sell the Lands to Fram for 95% of fair market value. As Romandale refused to do that, Fram is entitled to the difference in the market value of the Lands between then and trial. Fram says it mitigated its losses by entering into the Settlement Agreement and withdrawing its challenge to the validity of the 2005 August Agreement. Because Romandale’s actions were responsible for Fram giving up its 50% interest in the Lands, Fram should be compensated in damages. [300] The foundation for Fram’s claim to damages is that Romandale breached the prohibition against Dispositions in s. 5.03 of the COAs when it entered into the 2005 August Agreement. However, the trial judge found against Fram on that matter. In paras. 168-90 of the Reasons, the trial judge gives a thorough explanation for her determination that Romandale did not breach the prohibition against Dispositions in s. 5.03 of the COAs by entering into the 2005 August Agreement (the “ Determination ”). In its appeal, Fram did not challenge the Determination. Therefore, the Determination stands and Fram’s claim to damages must necessarily fail. X. The Costs Appeal [301] By order dated April 2, 2020 (the “ Costs Order ”), the trial judge ordered costs in favour of Romandale in the amount of $2,708,651.57. Costs were awarded on a substantial indemnity basis and made payable on a joint and several basis by Fram and Kerbel. [302] Both Fram and Kerbel seek leave to appeal the Costs Order. [303] The general principle is that when an appeal is allowed, the order for costs below is set aside and the appellant is awarded costs below and on appeal: St. Jean v. Cheung , 2009 ONCA 9, 45 E.T.R. 3(d) 171, at para. 4; Climans v. Latner , 2020 ONCA 554, 449 D.L.R. (4th) 651, at para. 85. As I would allow the appeals, the general principle applies and the Costs Order is set aside. Thus, it is unnecessary to determine whether leave to appeal the Costs Order should be granted and, if so, whether the appeals against that order should be allowed. [304] Based on the parties’ brief submissions on this matter at the oral hearing of the appeals, I understand that all three agree that if the appeals are allowed, costs below should be awarded on a partial indemnity basis. However, they disagree on the basis by which those costs should be determined. Fram and Kerbel argue that this court should fix those costs at 60% of the full indemnity request contained in the bills of costs they submitted at trial. Romandale contends that, if the parties are unable to agree on the quantum of partial indemnity costs, costs should be assessed. [305] Romandale also challenges Fram’s entitlement to costs below. It submits that Fram has no appeal but, rather, only an “economic interest” in the outcome of Kerbel’s appeal. Consequently, if the appeals are allowed, Romandale says that Fram is not entitled to costs below. [306] For the reasons given in my determination of Romandale’s first alleged threshold flaw, I reject Romandale’s submission that Fram is disentitled to costs below. [307] The oral submissions do not provide the court with an adequate basis on which to quantify the costs below for Fram and Kerbel. I trust that the foregoing provides the parties with sufficient guidance that they can resolve the quantum of costs below among themselves. If they are unable to do that, as indicated in the disposition below, the parties may have recourse to this court to resolve the matter. XI. A COMMENT ON THE CONCURRING REASONS [308] My reasons do not address the first proposition set out in my colleague’s concurring reasons because no party raised or argued the legal effect of Fram’s consent. [309] In terms of the second proposition – estoppel by convention – no party raised or argued the legal issues addressed by my colleague in his concurring reasons. Consequently, my reasons do not address those legal issues. [310] Accordingly, nothing in my reasons should be taken as approving of those parts of the concurring reasons relating to the first and second propositions. XII. Disposition [311] Accordingly, I would allow the appeals and declare that the 2005 August Agreement is valid and enforceable, and I would order specific performance of Romandale’s obligations under the 2005 August Agreement. [312] Counsel for the parties advised that they had resolved the matter of costs of the appeals and that no order was required in that regard. Thus, I would make no order as to costs of the appeals. [313] In terms of costs below, if the parties are unable to resolve that matter, I would permit them to make written submissions to a maximum of 5 double-spaced pages. I would give the Appellants 14 days from the date of release of this judgment to file their written submissions and Romandale 21 days. [314] Neither Fram nor Kerbel specified what changes should be made to the Judgment if the appeals were successful. In light of that and the complexity of the pleadings, I will leave it to the parties to resolve that matter. I offer the following comments as guidance: i. because I would dismiss Fram’s request for damages and no appeals were taken in respect of the 2007 Action and the 2008 Action, I would make no change to paras. 1 and 2 of the Judgment to the extent it dismisses those actions. However, that part of para. 1 of the Judgment dismissing Kerbel’s crossclaim may need to be altered to reflect the result of these appeals; ii. I would set aside para. 3 of the Judgment and substitute an order dismissing the 2016 Action; iii. I would set aside para. 5 of the Judgment and substitute an order declaring that the 2005 August Agreement is valid and enforceable and an order for specific performance of Romandale’s obligations under it; and, iv. I would set aside para. 6 of the Judgment. “Gillese J.A.” “I agree. M.L. Benotto J.A.” SCHEDULE “A”: CHRONOLOGY OF EVENTS 2003 [1] Romandale sells Fram an undivided 5% interest in two neighbouring farms in Markham known as the McGrisken Farm and the Snider Farm (the “ Lands ”) and the parties enter into two identical sets of agreements, one set for each farm property: the Co-Owners Agreement (“ COA ”), which sets out the terms and conditions on which Romandale and Fram, as co-owners, hold title to the Lands; the Construction Management Agreement (“ CMA ”), under which Fram is to construct and sell residential units on the Lands, once they achieve Secondary Plan Approval (“ SPA ”); and the Development Management Agreement (“ DMA ”), which governs the development process for the Lands. Bordeaux Developments (Ontario) Inc. (“Bordeaux”) is also a party to the DMAs and, under its terms, is appointed the development manager. When the parties enter into these agreements, they expect to obtain SPA for the Lands around 2010. [2] Of these agreements, the COAs are the most significant for these appeals. The buy-sell provision in s. 5.07 of the COAs permits either co-owner, under certain conditions, to tender on the other an offer to sell its entire interest in the Lands and, at the same time, an offer to buy the other’s entire interest in the Lands on the same terms as the offer to sell. The non-tendering party must choose whether to buy out the tendering party or sell its interest. The buy-sell is available once SPA is obtained for the Lands or the DMA is terminated. [3] Section 6.02 of the COAs provides that if an Event of Default occurs and is continuing, the non-defaulting party can, among other things, bring proceedings for specific performance and/or buy the defaulting party’s interest in the Lands at 95% of fair market value. [4] Development of the Lands depends on obtaining planning approval, including appropriate amendments to the official plan. These changes are made to the secondary plan, which provides more detailed policies for the development of a specific area. The process of obtaining development approval for specific lands is known as SPA. This is reflected in s. 5.07(a) of the COAs, which defines SPA as “an amendment of the official plan of the Town of Markham applicable to the Lands, obtained in accordance with the Planning Act (Ontario)”. [5] When Romandale and Fram enter into these agreements in 2003, Romandale has not yet started the SPA process. 2004 [6] With Fram’s consent, Romandale borrows $6 million from the Bank of Nova Scotia (“ BNS ”) secured by a mortgage on the Lands. 2005 [7] With Fram’s consent, Romandale terminates the DMAs with Bordeaux. [8] In response, Bordeaux brings an action against Romandale and Fram, alleging the termination was invalid and of no force and effect. [9] The ongoing work to move the Lands through SPA continues through a new agreement between Fram and Romandale to co-manage development of the Lands. [10] BNS calls the $6 million mortgage. Romandale needs financing to repay the BNS loan by August 30, 2005. It also needs cash to make distributions to the Roman family. The solution is an agreement which Romandale and Kerbel enter into on August 29, 2005 (the “ 2005 August Agreement ”). [11] In the 2005 August Agreement, Kerbel agrees to pay off the BNS mortgage and extend the same amount as a new loan to Romandale under the same security and Romandale agrees to: (1) sell to Kerbel its 95% interest in the Lands, at a fixed price of $160,000 per acre; (2) sell to Kerbel (on behalf of the Roman family) the Triple R Lands for $175,000 per acre, subject to a price adjustment for non-developable acreage; and (3) grant Kerbel a right of second refusal over other lands called the Elgin South Property. The sale of Romandale’s interest in the Lands is to occur in two steps: a. an initial sale of 5% of Romandale’s interest in the Lands; and b. the sale of Romandale’s remaining interest in the Lands (“ Remaining Interest ”), conditional on: i. Romandale buying out Fram’s interest in the Lands pursuant to the buy-sell provisions in the COAs; or ii. Fram consenting to the transaction. [12] The second step of the sale of Romandale’s interest in the Lands to Kerbel is referred to as the “ Conditional Provision ”. [13] All the transactions in the 2005 August Agreement have been completed, except the sale of Romandale’s Remaining Interest to Kerbel under the Conditional Provision. [14] Paragraph 5 of the 2005 August Agreement empowers Kerbel to cause Romandale to trigger the buy-sell provision in the COAs following SPA being obtained for the Lands. It also gives Kerbel full control over the development of the Lands. [15] When the parties entered into the 2005 August Agreement, Romandale expected the Lands would advance through the planning process by approximately 2010 and Kerbel hoped that SPA might take only seven to ten years to unfold. [16] Ms. Roman-Barber tells Fram she reached an agreement with Kerbel under which Keel bought the Triple R Lands, assumed the BNS mortgage, and bought 5% of Romandale’s interest in the Lands. She does not disclose that Romandale has committed to sell its entire interest in the Lands through the Conditional Provision. 2007 [17] In January, Romandale discloses to Fram that it sold its entire interest in the Lands to Kerbel. Fram’s repeated requests for a copy of the 2005 August Agreement are refused. Fram’s counsel is shown a copy of the agreement in April, on conditions. [18] In June, Romandale attempts to sell a further 7% interest in the Lands to Kerbel on the same terms as the 2005 August Agreement. This time it notifies Fram, which issues a notice of default for a prohibited disposition. [19] In July, Fram starts an action against Romandale and Kerbel, alleging that the 2005 August Agreement was a prohibited disposition under the COAs, and seeking an injunction restraining Romandale from any further sale of its interest in the Lands (the “ 2007 Action ”). [20] Fram also gives notice it will seek to exercise its remedy under the COAs to purchase Romandale’s interest in the Lands at 95% of fair market value. [21] In July, Ms. Roman-Barber produces a copy of the 2005 August Agreement as an exhibit to her affidavit on the injunction motion. This is the first time that Fram is provided with a copy of the agreement. [22] In her affidavit, Ms. Roman-Barber swears that “The Agreement of August 29, 2005 is conditional upon [SPA]” and “The Buy/Sell Provisions are only exercisable after what is commonly known as [SPA]”. [23] Justice Forestell grants the injunction restraining Romandale from making any disposition of the Lands or any part of its interests in them, stating “[t]he original intent of the [2005 August Agreement] was that the sale to [Kerbel] of the [Remaining Interest] would not occur until some time after SPA”. 2008 [24] Fram and Bordeaux start an action against Romandale and Kerbel based on alleged breaches of the CMAs (the “ 2008 Action ”). Under the CMAs, Fram had the right to construct residences on the Lands once SPA is obtained. [25] Kerbel, as owner of the Triple R Lands, together with neighbouring landowners, form the North Markham Landowners Group (“NMLG”) with the goal of engaging collectively with the relevant authorities about the development of their respective properties. [26] From 2008 onward, the NMLG retains consultants and commissions studies required for the development process and engages in that process with Markham. NMLG’s development costs have been in the hundreds of thousands of dollars. Until 2011, Kerbel reimbursed Romandale for all costs associated with the Lands, including Romandale’s share of the NMLG “cash calls” that were made to fund the NMLG ongoing development activities. 2009 [27] The anticipated development timeline for the Lands changes because of government decisions. As a result, development of the Snider Farm is delayed until 2021-2031 and of the McGrisken Farm until 2031-2051. In addition, the Snider Farm is proposed for employment use, which would prevent residential development. [28] Ms. Roman-Barber makes further statements during examinations that the buy-sell would be triggered after SPA. [29] The 2007 and 2008 Actions are set down for trial in July. In November, they are consolidated. 2010 [30] The parties attend pre-trial conferences, following which the trial is adjourned and the parties engage in settlement discussions. [31] At a judicial mediation in September 2010, the parties reach an agreement in principle on the main settlement terms. One of the agreed settlement terms is that the sale of Romandale’s Remaining Interest to Kerbel will occur after the Lands achieve SPA. [32] In a letter dated September 24, 2010, from Romandale’s counsel to counsel for Kerbel and Fram, he set out areas on which the parties had agreed, including “That the sale of each of parcel will take place when that particular parcel achieves [SPA]”. [33] Various drafts are exchanged among counsel for the three parties, all of which include a provision to the effect that purchase and sale of Romandale’s Remaining Interest will take place after SPA. [34] Romandale withdrew from the settlement in October for reasons that include disagreement over registration of the injunction against the Lands. Its reasons do not include an objection to the provision that purchase and sale will take place after SPA. [35] Fram and Kerbel move forward with settlement and enter into final minutes of settlement, (the “ Settlement Agreement ”) in December 2010. It provides that if Romandale does not concur in it and the 2007 and 2008 Actions proceed to trial: 1) Fram would discontinue its claims against Kerbel and restrict its claims against Romandale to damages; 2) Kerbel would grant Fram an option to purchase a 50% interest in Romandale’s Remaining Interest in the Lands, on the same terms and conditions as Kerbel might purchase Romandale’s Remaining Interest; 3) If Fram exercises the option, it and Kerbel would enter into a joint venture agreement to develop the Lands with (effectively) an equal sharing of costs; 4) Fram did not consent to Romandale’s sale of its Remaining Interest in the Lands to Kerbel; and 5) It is Fram and Kerbel’s intention that “the purchase and sale of Romandale’s Remaining Interest in the Lands pursuant to these Minutes of Settlement will take place after [SPA] for the Lands has been obtained”. 2011 [36] By letter dated January 28, 2011, counsel for Romandale advises Fram and Kerbel that Romandale objects to Kerbel’s land planner telling the North Markham Landowners Group (“ NMLG ”) that there was a change in the ownership of the Lands. The letter reiterates that Romandale conditionally sold the Lands to Kerbel under the 2005 August Agreement and “[t]he condition could only be satisfied by either a) secondary plan approval (which has not been achieved); b) or the consent of [Fram] to the transaction”. [37] Romandale represents the Lands at the NMLG and instructs its planning consultant (and others working for it) to not share information with Kerbel’s planner. [38] Kerbel’s counsel sends a letter, dated February 17, 2011, to Romandale’s counsel complaining that Ms. Roman-Barber’s conduct was a breach of para. 5 of the 2005 August Agreement in which Romandale ceded control of the development process for the Lands to Kerbel. It demands that Romandale confirm to the NMLG that Kerbel’s planning consultant has the sole authority to represent the Lands and threatens to commence proceedings if Ms. Roman-Barber did not comply with para. 5 of the 2005 August Agreement. [39] Romandale’s counsel responds by letter, dated February 25, 2011, asserting that its client had “at all times acted in accordance” with the 2005 August Agreement and was considering whether the Settlement Agreement was a breach of the 2005 August Agreement. 2012 [40] In February, Romandale seeks payment from Kerbel of invoices and expenses incurred pursuant to the 2005 August Agreement. [41] In June, Romandale moves to amend its pleadings in the 2007 and 2008 Actions and for leave to commence claims against Kerbel, alleging the Settlement Agreement fundamentally breached the 2005 August Agreement. 2013 [42] Master Graham dismisses Romandale’s amendment motion, finding that the Settlement Agreement did not amount to a breach of the 2005 August Agreement “because whatever the Kerbel defendants do with the [L]ands once Romandale’s interest in them is conveyed … is none of Romandale’s concern”. Accordingly, he said, Romandale’s argument that the 2005 August Agreement was breached is not tenable at law. [43] Romandale appeals Master Graham’s order. [44] Meanwhile, Romandale and Kerbel were involved in litigation over the Triple R Lands (the “ Triple R Lands Litigation ”), one of the transactions in the 2005 August Agreement. Under the 2005 August Agreement, Kerbel purchased the Triple R Lands for $175,000 per developable acre, subject to a purchase-price rebate calculated in reference to developable acreage. The parties disagreed about whether and how much rebate was owed. In February 2013, Romandale and Kerbel enter into a partial settlement in which they agree that if Kerbel is found to be entitled to a price adjustment, the determination of the non-developable lands is to be done “pursuant to the terms of the [2005 August Agreement] and the Amendment”. [45] Romandale leaves the NMLG. 2014 [46] Romandale brings an action against Kerbel, alleging Kerbel breached the 2005 August Agreement by taking steps to reduce the amount of potential developable acreage on the Lands. It seeks a declaration that the 2005 August Agreement was terminated or, alternatively, damages (the “ 2014 Action ”). [47] Justice Kiteley dismisses Romandale’s appeal of Master Graham’s order. [48] This court releases its decision in the Triple R Lands Litigation. It finds in favour of Kerbel, declaring that Kerbel was “entitled to a purchase price reduction in accordance with the [2005 August Agreement]”. [49] NMLG enters into a funding agreement with Markham for the purpose of funding the municipality’s studies and reports related to future development of lands in north Markham. Kerbel pays all of the costs associated with the Lands under the funding agreement. 2015 [50] Romandale retains new counsel and takes a new position. For the first time it claims that the buy-sell provisions in the COAs could be performed before SPA because the DMAs with Bordeaux had been terminated in February 2005. [51] Romandale obtains leave to amend its pleadings in the 2007 Action to allege, for the first time, that Kerbel repudiated the 2005 August Agreement by entering into the Settlement Agreement because the latter included a provision that the purchase and sale of its Remaining Interest would occur after SPA. Also for the first time, in its amended pleadings, Romandale asserts that it will not perform the 2005 August Agreement in any event. Until then, Romandale’s position in the 2007 Action mirrored its position in the 2014 Action: that it was entitled to damages from Kerbel if the court did not find that the 2005 August Agreement was terminated. [52] Justice Dunphy orders that Kerbel be added as a party to the 2007 Action, that the injunction be dissolved, and that Romandale be permitted to amend its pleadings to argue repudiation. 2016 [53] Kerbel starts an action against Romandale seeking specific performance of the 2005 August Agreement (the “ 2016 Action ”). 2017 [54] Kerbel files a crossclaim in the 2007 Action seeking specific performance of the 2005 August Agreement and an order directing Romandale to comply with its terms. [55] Romandale files a defence to Kerbel’s crossclaim in the 2007 Action alleging that the 2005 August Agreement offends the rule against perpetuities. 2018 [56] Shortly before the trial of the four actions begins in October 2018, Fram and Kerbel amend the Settlement Agreement to allow the sale of Romandale’s Remaining Interest to close immediately, rather than after SPA. The stated basis for this is to militate against the risk that the 2005 August Agreement could offend the rule against perpetuities. [57] Fram delivers its consent to Romandale to close the sale of its Remaining Interest under the 2005 August Agreement. [58] The trial of the four actions begins in October. SPA had not been obtained for the Lands. Schedule “B” : KEY Contractual Provisions 1. Key Provisions in the COAs Section 1.01 Definitions: Unless the subject matter or context otherwise requires: [ … ] (s)     “Disposition” means the sale (including judicial sale), assignment, exchange, transfer, lease, mortgage, hypothecation, pledge, encumbrance, devise, bequeath or other disposition or agreement for such by a Co-Owner of the whole or part of its Co-Owner's Interest, and a Disposition shall include an amalgamation, a transfer by arrangement, conversion, exchange, sale, assignment or trust of the Equity Shares or the issue of any treasury shares which in any case would result in a change of Control of a Co-Owner; Section 5.03 Dispositions: Save for those Dispositions expressly permitted in this Agreement neither Co-Owner shall make or permit a Disposition without the consent of the other Co-Owner (which consent may be unreasonably or arbitrarily withheld) and any attempt to do so shall be void and the other Co-Owner shall, in addition to all other rights and remedies in law and in equity, be entitled to a decree or order restraining and enjoining such Disposition and the offending Co-Owner shall not plead in defence thereto that there would be an adequate remedy at law it being recognized and agreed that the injury and damage resulting from such default would be impossible to measure monetarily. Notwithstanding anything in this Agreement contained no Disposition may be made if: (t)      as a result thereof, the other Co-Owner or its Co-Owner's Interest shall be subject to any taxation to which it was not theretofore subject or to any governmental controls or regulations to which it was not subject prior thereto by reason solely of the nationality or residence of the transferee; or (u)     the Disposition is not permitted by law or any term of any Permitted Encumbrance or any agreement or document affecting the Co-Owners or the Lands unless any approval required by such Permitted Encumbrance, agreement or document has been obtained and is in effect; or (v)     the Disposition is for less than all of the Co-Owner's Interest; or (w)    such Co-Owner or any Affiliate of such Co-Owner is a Defaulting Party hereunder, and any Disposition which would procure such result shall be void. The Co-Owners shall use their reasonable best efforts to obtain the consents of any third parties to any Disposition which would otherwise be permitted hereunder (provided, however, that a Co-Owner shall not be obligated to expend any funds, incur any liabilities or amend any agreements in order to obtain any such consent). Notwithstanding anything herein contained, no Disposition may be made unless the transferee enters into an agreement with any continuing Co-Owner (and satisfactory to its counsel acting reasonably) whereby the transferee shall be bound by and entitled to the benefit of this Agreement to the extent of the Co-Owners Interest which is the subject of the Disposition . Section 5.07 Buy-Sell Provisions: (a) Provided that what is commonly called secondary plan approval (that is an amendment of the official plan of the Town of Markham applicable to the Lands, obtained in accordance with the Planning Act (Ontario)) (the “ Secondary Plan Approval ”) has been obtained for the Lands, or if the Management Agreement has been terminated, then a Co-Owner who is not then a Defaulting Party (the “ Initiating Party ”) may, at any time thereafter tender on the other party (the “ Recipient Party ”), not less than two (2) copies of an agreement combining a separate offer to sell the Initiating Party's full title to all (but not less than all) of its Co-Owner's Interest in the Lands to the Recipient Party (the “Sale Offer”) and an offer to purchase all (but not less than all) of the Recipient Party's Co-Owner's Interest in the Lands (the “Purchase Offer”) at a price and upon such terms and conditions as may be set by the Initiating Party except that the purchase price must be paid by cash and the assumption of the assumable Permitted Encumbrances affecting the applicable co-Owner's Interest and save and except that the price and terms as to payment with respect to the Sale Offer for each one percent (1%) interest must be equal to and identical to the price and terms as to payment with respect to the Purchase Offer for each one percent (1%) interest and that the closing of the transaction resulting from the acceptance of the Sale Offer or the Purchase Offer Shall take place no earlier than 30 days and no later than 90 days after the expiration of the 100 day period referred to in Subsection 5.07(b). On the completion date of the transaction contemplated in the Sale Offer the purchasing Co-Owner shall pay to the selling Co-Owner the balance of the purchase price by cash or certified cheque. (b)     One business day after receipt of the Purchase Offer by the Recipient Party, the Initiating Party shall deliver to the Recipient, as a deposit, a certified cheque or bank draft in an amount equal to five percent (5%) of the purchase price stipulated in the Purchase Offer and such cheque or bank draft shall be payable to the Recipient Party's counsel, in trust. The Recipient Party shall have 100 days following the receipt of the Sale Offer and the Purchase Offer in which to elect either to accept the Purchase Offer or the Sale Offer. (c)     If the Recipient Party shall elect to accept the Sale Offer it shall return to the Initiating Party its deposit (by way of certified cheque or bank draft) together with one (1) fully executed copy of the Sale Offer accompanied by the Recipient Party’s certified cheque or bank draft as a deposit equal to 5% of the purchase price stipulated in the Sale Offer payable to the Initiating Party's counsel, in trust. If the Recipient Party shall not accept the Sale Offer it shall accept the Purchase Offer within the time limited. Failure of the Recipient Party to accept the Sale Offer or the Purchase Offer shall be deemed to mean that the Recipient Party has accepted the Purchase Offer. (d)     To the extent not stated or contradicted in any Purchase Offer or Sale Offer, the closing thereof shall be completed in accordance with the terms and conditions referred to in Section 8.01 hereof. Section 5.10 Romandale’s Right to Sell: Subject only to the provisions of Section 5.03(a), (b) and (d) but notwithstanding any other provision in this Agreement to the contrary, Romandale may upon 20 days notice to Frambordeaux, accompanied with a copy of a bona fide arm's length offer to purchase (the “Offer”), elect to sell in one or more transactions up to but not in excess of an undivided 39% interest in the Lands payable only in cash and by assumption of existing assumable Permitted Encumbrances, provided that any purchaser of such interest shall agree in writing that following such purchase and sale the Co-Owners Committee shall remain the same and that the representative of Romandale shall also be the representative of the purchaser that all decisions and actions of Romandale and the purchaser under or pursuant to this Agreement (including the exercise of all rights hereunder) shall be made by Romandale alone. Frambordeaux may, at any time within 10 days from receipt of the aforesaid notice, by written notice to Romandale, elect to sell all or part of its Co- Owner's Interest on the same terms and conditions as contained in the Offer (except that the consideration shall be adjusted in accordance with the ratio of Frambordeaux's Co-Ownership Proportion to Romandale's Co-Ownership Proportion) provided that if Frambordeaux elects to sell only a part of its Co-Owner's Interest, it shall retain at least an undivided 2% Co-Owner's Interest and if Frambordeaux elects to sell all or part of its Co­ Owner's Interest, Romandale or the purchaser shall be obligated to complete the purchase of Frambordeaux's Co-Owner's Interest pursuant to this Section 5.10. Section 6.02 Remedies Available to a Non-Defaulting Party: If an Event of Default has occurred and is continuing, a Non-defaulting Party shall have the right to: (a)     remedy such Event of Default and any event of default of the Defaulting Party under any other agreements Approved by the Co-Owners, and shall be entitled upon demand to be reimbursed by the Defaulting Party for any monies expended to remedy any such Event of Default and any other expenses incurred by such Non-defaulting Party, together with interest (calculated and payable monthly) at the lesser of the rate of 4% per annum in excess of the Prime Rate or the maximum rate then permitted at law from the date such monies were expended or such expenses were incurred to the date of repayment thereof; and/or (b)     bring any proceedings in the nature of specific performance, injunction or other equitable remedy, it being acknowledged by the parties hereto that damages at law may be an inadequate remedy for a default or breach of this Agreement; and/or (c)     bring any action at law as may be necessary or advisable in order to recover damages; and/or (d)     arrange, upon written notice to the Defaulting Party, for a determination of the Fair Market Value (as determined pursuant to Section 6.03) of the Defaulting Party's Co-Owner's Interest as at the date of such notice and shall deliver written notice to the other Co-Owner of such Fair Market Value, and either contemporaneously with such first written notice or such second written notice, a Non-defaulting Party shall have the right to give written notice (“Notice of Exercise”) to the Defaulting Party that such Non-defaulting Party elects to purchase the Defaulting Party's Co-Owner's Interest at a price equal to ninety-five (95%) per cent of the Fair Market Value thereof payable only in cash and by the assumption of assumable Permitted Encumbrances affecting the Defaulting Party's Co-Owner's Interest and to purchase such interest at such price in which event the Defaulting Party shall sell and the Non-defaulting Party shall purchase such interest on the terms set forth in Subsections 6.03 and 6.04 hereof. 2. The 2005 August Agreement WHEREAS: A.        Romandale, as to an undivided 95% interest, and Frambordeaux Developments Inc. (“FDI”), as to an undivided 5% interest, are the owners of the lands and premises consisting of 278 acres, more or less, described as part of Lot 25 in Concessions 4 and 5, Town of Markham (having P.I.N. 03055-0008 (LT) (the “Snider Property”) and 03056-0052 (LT) (the “McGrisken Property”)) (collectively, the “Snider/McGrisken Property”) which are subject to a mortgage in favour of The Bank of Nova Scotia (the “Bank”) in the original principal amount of $6,000,000 registered as Instrument No. YR479080 (the “BNS Mortgage”); B.        The amount outstanding under the BNS Mortgage is scheduled to become due and payable on August 30, 2005 and Romandale has requested 2001251 to acquire the mortgagee's interest under the BNS Mortgage and such of the Bank's additional security provided by Romandale in connection therewith as may be required in order to ensure that the BNS Mortgage is a good and valid first charge against title to the Snider/McGrisken Property (collectively, the “Security”) and thereafter extend its terms for repayment; C.        Romandale has agreed to sell its interest in the Snider/McGrisken Property to 2001251 on the terms herein set out; D.        Romandale and parties affiliated with Romandale are the owners of the lands and premises described as part of Lot 26, Concession 4, Town of Markham (having PIN 03055-0009 (LT)) (the “Triple R Property”) and Romandale has agreed to cause the sale of such property to 2001251 on the terms herein set out; E.         Romandale is the owner of the lands and premises described as part of Lot 24, Concession 5, Town of Markham (being PIN 03056-0199 (LT)) (the “Elgin South Property”) and has agreed to grant to 2001251 a right of refusal to purchase such property on the terms herein set out; NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of 2001251 agreeing to acquire the BNS Mortgage and extend the term for repayment thereunder and in consideration of the other covenants contained herein, the parties agree as follows: 1.         BNS Mortgage (a)        2001251 or its affiliate shall acquire the mortgagee’s interest under the Security, including without limitation, the BNS Mortgage on or before the amount outstanding thereunder becomes due and payable. 2001251 and/or its designate shall be at liberty to contact the Bank at any time hereafter for the purposes of settling the terms and conditions in respect of the purchase of the BNS Mortgage. 2001251 shall receive a mortgage statement from the Bank setting out the current outstanding balance under the BNS Mortgage. Thereafter, the parties to the BNS Mortgage shall enter into an amending agreement whereby: (i) the term is extended such that all amounts secured thereby shall become due and payable upon the earlier of (A) the date that is three (3) years from the date of closing of 2001251’s purchase of the BNS Mortgage and (B) the date upon which Romandale conveys the Remaining Portion (as hereinafter defined) of the Snider/McGrisken Property to 2001251 and (ii) the interest rate chargeable thereunder shall be 8% per annum payable interest only monthly in arrears. (b)        Romandale shall pay the sum of $20,000 to 2001251 on the execution of this agreement to reimburse it for its costs and expenses incurred to date, and it shall pay to 2001251 all further costs and expenses of 2001251 incurred in connection with the BNS Mortgage acquisition on the date that the mortgage assignment and amending agreement is executed by the parties an registered on title. Notwithstanding the foregoing, the parties agree that Romandale shall only be responsible up to the sum of $10,000 in respect of legal fees incurred in connection with 2001251's acquisition of the BNS Mortgage. (c)        In connection with the acquisition of the BNS Mortgage by 2001251, Romandale shall cause its counsel Berkow Cohen LLP (Jack Berkow) and Gowling Lafleur Henderson LLP (John Whyte) (collectively, “Romandale Counsel”), to provide opinions in favour of 2001251(collectively, the “Opinions”), which shall be in forms acceptable to 2001251 and its counsel, Aird & Berlis LLP (Hayden Solomons), acting reasonably, and which shall include, without limitation, opinions that the BNS Mortgage is a good and valid first fixed mortgage registered against title in the Snider/McGrisken Property and that the BNS Mortgage and this Security has been validly assigned to 2001251, that there are no other financial encumbrances affecting title to the Snider/McGrisken Property and that acquisition and amendment by 2001251 of the BNS Mortgage on the terms and conditions as herein set out shall not constitute a transaction (including, without limitation, a “Disposition” as defined under the Co-Owner Agreement dated May 29, 2003 in respect of the Snider Property (the “Snider Co-Owner Agreement”) and as defined under the Co-Owner Agreement dated May 29, 2003 in respect of the McGrisken Property (the “McGrisken Co-Owner Agreement”) (collectively, the Snider Co-Owner Agreement and the McGrisken Co-Owner Agreement are referred to herein as the “Co-Owners Agreements”, and any amendments thereto) that requires the consent of FDI pursuant to the said Co-Owners Agreements. 2.         Sale of the Snider/McGrisken Property Romandale shall sell 5% of its interest (the “Initial Interest”) in the Snider/McGrisken Property (being 4.75% of the total 100% ownership in the Snider/McGrisken Property (e.g. 95% Romandale and 5% FDI as of the date of this agreement) and, of FDI if it so desires, to 2001251 or its affiliate on the terms herein set out. Romandale shall sell its remaining interest in the Snider/McGrisken Property, being 95% of its interest in the Snider/McGrisken Property (the “Remaining Interest”) also on the terms herein set out save that the sale of the Remaining Interest is conditional for the benefit of the vendor and the purchaser on the valid exercise of the buy-sell rights under the Buy-Sell Provisions (as defined in paragraph 5 of this Agreement) and the completion of the buy-out of the interest of FDI, or, in the alternative, the consent of FDI to the transaction and save that financial figure shall be adjusted pro-rata to represent the said Remaining Interest. In respect of the foregoing, Romandale covenants to use reasonable best efforts to obtain the consent of FDI in respect of the sale of the Remaining Interest to 2001251 or its affiliate as aforesaid. For clarification, the following terms are applicable in respect of the Initial Interest but would be adjusted to reflect the aforesaid Remaining Interest at the time that Romandale is able to sell the Remaining Interest to 2001251 or its affiliate as aforesaid: (a)        The purchase price shall be based on the sum of $160,000 per acre which price will be calculated using the existing most recent survey of the subject property which Romandale represents and warrants accurately describes the subject property. With respect to the purchase of the Initial Interest, an initial deposit of $100,000 shall be paid immediately, and the balance of the purchase price shall be paid by certified cheque or bank draft on the closing of such transaction. With respect to the purchase of the Remaining Interest, the purchase price shall be reduced at the end of the 5 th year of the term of the VTB #1 Mortgage (as hereinafter described) by the amount that the acreage of the non-developable land (being land prohibited from development by law) subject to environmental protection requirements, wood lots, land below top-of-bank and the set-backs from top-of-bank, streams and floodplain, existing easements, but not including up to half of the existing lake on the subject property to a maximum of two acres (the “ND Land”) exceeds 15% of the total acreage. The parties shall each retain their own consultant to determine the acreage of the ND Land and both parties shall agree upon a third independent qualified consultant to determine the acreage of the ND Land in the event that their own consultants cannot agree upon such acreage. In the event of such disagreement, the amount of the ND Land shall be deemed to be the average of the amounts determined by the 3 consultants. Such determination of the amount of acreage of the ND Land shall be final and binding upon the parties, with no rights of appeal therefrom. The parties shall each bear the cost of their own consultant and 50% of the cost of the third consultant. (b)        The purchase price in respect of the purchase of the Remaining Interest shall be paid to the extent of 35% thereof by certified cheque on closing and the balance by way of a vendor take-back mortgage (the “VTB #1 Mortgage”) with a term of 7 years, bearing no interest, with two balloon principal payments of $9,500,000 each to be paid at the end of the 3 rd year of the term and at the end of the 5 th year of the term, respectively, with the price adjustment described in section 2(a) hereof to be applied at the time of such [later] payment. Notwithstanding the above, however, the parties further agree that the aggregate of the amount paid on closing and the two balloon principal payments shall not exceed 75% of the overall purchase price as adjusted pursuant to section 2(a) hereof. (c)        The closing of the sale of the Initial Interest shall take place on the 31 st day of January, 2006. The closing of the sale of the Remaining Interest shall take place sixty (60) days (or the next business day following such sixtieth (60 th ) day after the earlier of: (1) Romandale obtaining the consent of FDI pursuant to the Co-Owners Agreements to the sale of the Remaining Interest to 2001251 pursuant to the terms and conditions hereof, or (2) Romandale closing the purchase of FDI's co-ownership interest in the Snider/McGrisken Property pursuant to its rights under the Buy-Sell Provisions (as defined in paragraph 5 of this Agreement). (d)       The occupants approved by Romandale (the “Superintendents”) shall be entitled to occupy the residence on the Snider/McGrisken Property as Superintendents and caretakers to maintain and supervise the property, and they are to pay all maintenance, utilities and fire and liability insurance costs (which insurance shall be obtained by them and with the owner noted on all insurance policies for the above coverages as loss payee). The Superintendents' right to occupy the property shall automatically terminate on the earlier of the 5 th anniversary of the closing of the purchase and sale of the Initial Interest or Secondary Plan Approval being obtained for the Snider/McGrisken Property. (e)        In the event of any final judgment or order or any execution in favour of Bordeaux, FDI or any third party which attaches to or creates an interest in or affects title to the Snider/McGrisken Property, then in such case, the purchase price hereunder for Romandale's interest in the Snider/McGrisken Property shall be reduced by the value of such judgment, order or execution as follows: (1) in the event that the purchase transaction in respect of the Initial Interest has not yet closed, a reduction in the cash component of the said purchase price, (2) in the event that the purchase transaction in respect of the Remaining Interest has not closed then the purchase price in respect thereof shall be reduced by a reduction first in the cash component of the said purchase price and the balance, if any, resulting in a reduction of the principal amount owing under the VTB #1 Mortgage, or (3) in the event that such purchase transaction in respect of the Remaining Interest has closed, a reduction in the principal balance, owing under the VTB #1 Mortgage. The parties covenant and agree to notify the other of the details of any such judgment, order or execution forthwith following first becoming aware of such judgment, order or execution. 3.         Sale of the Triple R Property Romandale shall sell, or shall cause the owners to sell, the Triple R Property to 2001251 or its affiliates on the terms herein set out: (a)        The purchase price shall be based on the sum of $175,000 per acre which price will be calculated using the existing most recent survey of the subject property which Romandale represents and warrants accurately describes the subject property. The purchase price shall be reduced at the end of the 5 th year of the term of the VTB #2 Mortgage (as hereinafter described) by the amount that the acreage of the ND Land within the Triple R Property exceeds 20% of the total acreage. The determination of the amount of acreage of such ND Land shall be made in the same manner as that described in section 2 (a) hereof; (b)        The purchase price shall be paid to the extent of 70% thereof by certified cheque on closing and the balance by way of a vendor take-back mortgage (the VTB #2 Mortgage) with a term of 7 years, bearing no interest, with a balloon principal payment of $1 million at the end of the 3 rd year of the term. The price adjustment described in section 3(a) hereof shall be applied at the end of the 5 th year of the term, and 50% of the balance owing under the VTB #2 Mortgage shall be paid at the end of the 6 th year of the term and the balance at the end of the 7 th year of the term; (c)        The Superintendents shall be entitled to occupy the residence on the Triple R Property as Superintendents and caretakers to maintain and supervise the property, and they are to pay all maintenance, utilities and fire and liability insurance costs (which insurance shall be obtained by them and with the owner noted on all insurance policies for the above coverages as loss payee). The Superintendents' right to occupy the property shall automatically terminate on the earlier of the 5 th anniversary of closing or Secondary Plan Approval being obtained for the Triple R Property. (d)       2001251 shall immediately provide a deposit to Romandale in the amount of $100,000 in respect of its obligations to purchase the Triple R Property pursuant to the terms hereof, together with an interest-free loan of $1,000,000 evidenced by a promissory note signed by Romandale which shall be repayable on the closing of the sale of the Triple R Property to 2001251 or its affiliates. (e)        The closing of such sale shall take place on the date that is 70 days following the closing date of the transactions described in section 1 hereof (or the next business day thereafter in the event that such 70 th day is not a business day). 4.         Elgin South Property The Elgin South property is subject to an existing right of first refusal in favour of Angus Glen Farm (1996) Limited. On the closing of the acquisition of the BNS Mortgage, Romandale shall grant to 2001251 or its affiliate a right of second refusal to purchase such property on the same terms as contained in any offer to purchase that Romandale is prepared to accept. The form of such grant shall be in the same form as the existing agreement with Angus Glen Farm (1996) Limited. 2001251 shall be permitted to register notice of the aforesaid right of second refusal against title to the Elgin South Property. Romandale covenants and agrees to execute such further documents and to do all such further acts and things from time to time as requested by 2001251, to more effectively confirm and evidence the right of second refusal. 5.         Irrevocable Appointment Romandale hereby agrees that, on consideration of entering of this agreement by 2001251, other good and valuable consideration and the sum of Ten Dollars ($10.00) paid by 2001251 to Romandale, the receipt and sufficiency of all of which is hereby acknowledged, Romandale hereby irrevocably appoints 2001251 as its exclusive true and lawful attorney and agent having full power of substitution, and 2001251 is hereby fully authorized as such to act on behalf of and/or give binding instructions to Romandale solely in connection with the exercise of the buy-sell rights pursuant to the Buy-Sell Provisions (as hereinafter defined). Romandale agrees that any and all decisions, operations, conduct and actions relating to the development of the Snider/McGrisken Property shall be within the exclusive control of 2001251 and Romandale shall assist in facilitating such control to comply with Section 5.10 of the Co-Owners Agreements over all decisions, operations, conduct and actions exercisable by Romandale relating to the development and obtaining of development approvals for the Snider/McGrisken Property. Prior to the closing of the sale of the Remaining Interest, Romandale acknowledges and agrees that it may not transfer, sell, encumber or otherwise deal with or dispose of all or any part of the Snider/McGrisken Property without the prior written consent of 2001251. Romandale covenants and agrees to execute such further documents and to do all such further acts and things from time to time as requested by 2001251, to more effectively confirm and evidence the said attorney as it relates to the buy-sell rights. Romandale and 2001251 shall cooperate in getting the Snider/McGrisken Property included under the Town of Markham urban envelope for development purposes, and Romandale shall make all reasonable steps to reduce land wastage to as small an amount as possible, using Joanne Burnett, Jeff Kerbel and/or his designate to act on behalf of Romandale in taking such steps. Romandale further acknowledges that the foregoing rights of 2001251 are intended, without limitation, to permit 2001251 to cause Romandale to trigger Romandale's buy-sell rights under section 5.07 of each of the Co-Owners Agreements in respect of the Snider/McGrisken Property (collectively, the “Buy-Sell Provisions”) following Secondary Plan Approval being obtained for the Snider/McGrisken Property such that Romandale acquires the co-ownership interest of FDI in the Snider/McGrisken Property and then conveys such interest to 2001251 in accordance with this Agreement and to restrict Romandale from dealing with the Remaining Interest or any part thereof in the Snider/McGrisken Property in any way whatsoever, subject to the terms and conditions of the Co-Owners Agreement. 6.         Development Costs Romandale shall not be responsible for development costs incurred by 2001251 Ontario Inc. 7.         General (a)        This agreement shall be a binding agreement between the parties hereto save that it shall be conditional upon compliance with the Planning Act . (b)        Any notice given hereunder shall be in writing and given by personal delivery or by fax to the addresses set out on the signing page hereof. Such notice shall be deemed to have been given on the day of delivery or transmission if such was completed by 5:00 p.m. failing which it shall be deemed to have been given on the next day. (c)        Time shall be of the essence hereof. (d)       Romandale shall take all actions so as to ensure that all property interests conveyed pursuant to this agreement shall be good and marketable, free of all mortgages, liens and encumbrances. (e)        This agreement may be executed and delivered by counterparts and by facsimile transmission, and if so executed and delivered, each document shall be deemed to be in original, shall have the same effect as if each party so executing and delivering this agreement had executed the same copy of this agreement and all of which copies when taken together shall constitute one and the same document. 3. The Settlement Agreement WHEREAS Frambordeaux Developments Inc. (“Frambordeaux”) and Romandale Farms Limited (“Romandale”) are co-owners of two parcels of land which are the subject of these actions (the “Lands”) and are parties to Co-Owners Agreements governing their rights and obligations respecting their ownership of the Lands (the “Co-Owners Agreements”) which provide, inter alia , that each Co-Owner has a right of first refusal respecting an offer to purchase the other Co-Owner’s interest (the “Right of First Refusal”) and each Co-Owner has a buy-sell right in respect of the other Co-Owner’s interest (the “Buy-Sell Provision”), but that in both cases the rights may only be exercised after secondary plan approval has been obtained for the Lands, and that save for those dispositions expressly permitted by the Co-owners Agreements (whereby Romandale was permitted under certain conditions to sell up to 39% interest in the Lands), neither Co-Owner is permitted to dispose of its interest in the Lands without the consent of the other Co-Owner; AND WHEREAS Romandale and 2001251 Ontario Inc. ("2001251") made an agreement dated August 29, 2005 (the "August 29, 2005 Agreement") whereby Romandale agreed, inter alia, in respect of the Lands: to sell 5% of its interest (the "Initial Interest") in the Lands (being 4.75% of the total 100% ownership in the Lands) on the terms set out therein and originally scheduled to close January 31, 2006; and to sell its Remaining Interest in the lands (being 95% of its interest representing 90.25% of the total 100% ownership in the Lands) on the terms set out therein and at such time as Romandale could exercise its buy-sell rights under the Buy-Sell Provisions of the Co-Owners Agreements or Frambordeaux consented to the transaction; AND WHEREAS pursuant to the August 29, 2005 Agreement, Romandale transferred 5% of its interest in the Lands (being 4. 75% of the total Lands) to First Elgin Mills Developments Inc. ("First Elgin"), an affiliate of 2001251, on or about June 6, 2006; AND WHEREAS Romandale and First Elgin made a further agreement dated June 25, 2007, (the "June 25, 2007 Agreement"), whereby Romandale agreed to sell a further 7% of its original 95% interest in the Lands (being 6.65% of the total 100% ownership in the Lands) to First Elgin for the same purchase price of $160,000 per acre subject to adjustment for net developable acreage as provided in the August 29, 2005 Agreement; AND WHEREAS Frambordeaux sought and obtained an interlocutory injunction July 26, 2007 enjoining the defendants until further order of the Court from making any disposition of the Lands or any part of the interest of Romandale in the Lands; AND WHEREAS the Plaintiffs and the Defendants 2001251, First Elgin and Jeffrey Kerbel have agreed to settlement so that the right of 2001251 or its affiliate to acquire Romandale's Remaining Interest in the Lands pursuant to the August 29, 2005 Agreement may be exercised 60 days after Secondary Plan Approval for the Lands is obtained, and upon such acquisition the entire Lands shall at Frambordeaux' option be beneficially owned equally between 2001251 and Frambordeaux thereafter, so that a 50% undivided interest therein shall be beneficially owned by 2001251 or its nominee, and a 50% undivided interest therein shall be owned beneficially by Frambordeaux or its nominee. THE PARTIES HERETO agree as follows: In the event Romandale will not concur in this settlement and these actions proceed to trial, Frambordeaux, Fram 405 Construction Ltd. and Bordeaux Homes Inc. shall not seek any relief against 2001251, First Elgin or Jeffrey Kerbel and shall not seek a declaration that the August 29, 2005 Agreement is void nor that the June 6, 2006 transfer is invalid, but may pursue its claims against Romandale otherwise, including its claims for damages for breach of contract, misrepresentation and damages in lieu of specific performance, and all claims in these actions against 2001251, First Elgin and Jeffrey Kerbel shall be discontinued, with such discontinuance being an absolute defence for those defendants to any subsequent actions arising out of the circumstances pleaded. 2001251 hereby grants an option to Frambordeaux to purchase a 50% interest in Romandale's Remaining Interest in the Lands to be acquired by 2001251 as described in paragraph 2 of the August 29, 2005 Agreement, on the same terms and conditions as 2001251 may purchase Romandale's Remaining Interest in the Lands, at such time or times as 2001251 may exercise its right to purchase all or part of Romandale's Remaining Interest, provided that in the event Frambordeaux exercises its option hereby granted, the respective interests of Frambordeaux and 2001251 shall be adjusted so that each of Frambordeaux and 2001251 (including their affiliates and related parties) beneficially hold an exactly equal percentage ownership interest (being an undivided 50% interest each) in the Lands. In the event Frambordeaux exercises its option described in paragraph 2 hereof, and all or part of Romandale's Remaining Interest shall have been purchased, 2001251, First Elgin and Frambordeaux shall assign all of their right, title and interest in the Lands to Fram First Elgin Developments Inc. which shall hold in trust for 2001251 or its nominee and for Frambordeaux or its nominee, each as to a 50% beneficial interest therein. 2001251 and Frambordeaux, or their nominees, together with First Elgin Mills Developments Inc. and Fram First Elgin Developments Inc. shall enter into the form of joint venture agreement attached as Schedule "A" hereto and agree to share equally all costs relating to the acquisition of the Remaining Interest from Romandale, and all development costs incurred by either of them relating to the Lands since August 29, 2005 and going forward, and to make all decisions concerning the development and/or the exercise of all rights and obligations respecting the Lands, on a joint basis. Any disputes or disagreements shall be resolved by arbitration before a single arbitrator as the parties may agree, or failing such agreement, as may be appointed by a judge of the Ontario Superior Court. Frambordeaux does not by this settlement agreement or otherwise consent to the transaction referred to in paragraph 2 of the August 29, 2005 Agreement. It is the intention of the parties hereto that the purchase and sale of Romandale's Remaining Interest in the Lands pursuant to these Minutes of Settlement will take place after Secondary Plan Approval for the Lands has been obtained. The parties acknowledge that the legal description of the Lands is as set out in Schedule "B" appended hereto and that Notice of this Agreement pursuant to the Land Titles Act, R.S.O. 1990, c.L.5 may be registered against their respective undivided interest in the Lands and that Notice of Security Interest in respect of the option granted by this Agreement may be registered pursuant to the Personal Property Security Act, R.S.O. 1990, c. P. 10. Dated: December 3 rd , 2010 Lauwers J.A. ( concurring ): [315] I would reach the same destination as my colleague, dismissal of the appeal, but by a different route. We part company on the role of estoppel by convention. I adopt my colleague’s short forms in these reasons. A. OVERVIEW [316] I summarize my view of this appeal in the following propositions: 1) When Fram consented to the sale of Romandale’s Remaining Interest in the Lands to Kerbel under the 2005 August Agreement on August 22, 2018, any estoppel against Romandale ceased to have practical effect and was therefore spent. It plays no further legal role in the contractual relations among the parties. Those relations are entirely structured and governed by their respective agreements. 2) In any event, on the facts of this case, estoppel by convention does not arise. 3) By entering into the Settlement Agreement, Kerbel did not breach the 2005 August Agreement. 4) Kerbel did not repudiate the 2005 August Agreement. 5) Kerbel is entitled to specific performance of the 2005 August Agreement. [317] I will explain each of these propositions in turn, after restating the contractual context. B. THE CONTRACTUAL CONTEXT [318] The COAs between Fram and Romandale respecting the McGrisken and Snider Farms were signed in 2003. The COAs structure the relationship between Fram and Romandale. [319] The 2005 August Agreement between Kerbel and Romandale was signed in 2005. It included not only the McGrisken Farm and the Snider Farm, but also the Triple R Lands and the Elgin South Property, both of which were owned by or subject to the direction of Romandale. The 2005 August Agreement structures the relationship between Kerbel and Romandale. It has been fully performed except for the sale of Romandale’s Remaining Interest in the McGrisken and Snider Farms to Kerbel. [320] Fram and Kerbel signed the Settlement Agreement on December 3, 2010. The Settlement Agreement structures the relationship between Fram and Kerbel. Romandale was not a party to the Settlement Agreement. Romandale had participated in the September 2010 judicial mediation but withdrew in October 2010. (I observe that calling the exercise a judicial mediation gives it unwarranted gravity.) In the end, the Settlement Agreement was a business deal between Kerbel and Fram to which Romandale was not a party. [321] Romandale first raised the possibility that the Settlement Agreement breached the 2005 August Agreement in February 2011 but did not allege that by entering it Kerbel repudiated the 2005 August Agreement until 2015. [322] As I will explain, these three agreements remain in full force and effect and govern the parties to them. C. ANALYSIS (1) Any Estoppel Ceased to Have Practical Effect When Fram Consented to the Sale of Romandale’s Remaining Interest on August 22, 2018 [323] The estoppel by convention raised by Kerbel and Fram against Romandale arises from the Settlement Agreement. Romandale argues that Kerbel repudiated the 2005 August Agreement by entering into the Settlement Agreement, which provided that the sale of Romandale’s Remaining Interest would take place only after the Lands obtained SPA. Kerbel, in turn, seeks an order for specific performance of the 2005 August Agreement. Kerbel and Fram, together, argue that Romandale is estopped from resiling from Romandale’s earlier position that the buy-sell in the COAs could only be triggered upon SPA. That position was reflected in earlier representations to that effect made by all three parties, as my colleague has detailed at paras. 156-172. But for Fram’s 2018 consent, giving effect to this position would have the effect of extending the likely date for closing the COAs, and perforce the 2005 August Agreement, for many years, until after SPA. [324] My colleague defines the “Shared Assumptions” that underpin the estoppel by convention, at para. 153: (1) the buy-sell provision in the COAs could not be triggered until after SPA had been achieved for the Lands; and (2) under the 2005 August Agreement, Kerbel could not cause Romandale to trigger the buy-sell under the COAs until after SPA. She finds that Romandale is estopped from resiling from these Shared Assumptions. In her analysis, the estoppel continues to operate and prevents Romandale from resisting on order for specific performance of the 2005 August Agreement on the basis that it was fundamentally breached and repudiated by Kerbel’s entry into the Settlement Agreement. [325] However, as my colleague notes, the assumption that the buy-sell provision in the COAs could not be triggered until after SPA was a mistaken reading of s. 5.07 of the COAs. Romandale could have triggered the buy-sell under the COAs at any time after the DMAs were terminated in February 2005. Because the 2005 August Agreement was tied to the COAs, Kerbel could have caused Romandale to pull the trigger at any time after it signed that agreement. This understanding of the true trigger date is now common ground. [326] In August 2018, a few months before the trial started, Fram consented to the sale of Romandale’s Remaining Interest in the McGrisken and Snider Farms to Kerbel, pursuant to the 2005 August Agreement. Under para. 2(c) of that agreement, “The closing of the sale of the Remaining Interest shall take place sixty (60) days… after… Romandale obtaining the consent of [Fram]... to the sale of the Remaining Interest”. Fram’s consent removed any obstacle to the closing of that transaction. [327] The alleged estoppel prevented Romandale from insisting on an earlier closing date than after SPA, which by 2010 was projected to be years if not decades into the future. But this purpose of the estoppel was rendered redundant by Fram’s 2018 consent. In my view, assuming the estoppel was founded and was enforceable against Romandale, it ceased to have practical effect and plays no further legal role in the contractual relations among the parties. Fram’s consent could not have revived the 2005 August Agreement if it had been repudiated by Kerbel but, as I explain below, Kerbel did not repudiate that agreement. [328] The relations among the contracting parties are entirely structured and governed by their respective agreements, which also govern the disposition of this appeal. [329] If I am mistaken in concluding that the estoppel was effectively spent in 2018, I next set out my reasons for holding that there was no estoppel by convention on the facts of this case. (2) Estoppel by Convention Is Not Made Out [330] I begin with the governing principles of estoppel by convention, review the evidence, and then apply the principles to the facts. (a) The Principles Governing Estoppel by Convention [331] The law on estoppel by convention, at least in Canada, is under-theorized. There has been little jurisprudence. The most authoritative statement is that of the Supreme Court in Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53. Bastarache J. set out the criteria that form the basis of the doctrine, at para. 59, which I repeat here for convenience: (1)     The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly). [Emphasis in original.] (2)     A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position. (3)     It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position. [332] Note the reference by Bastarache J. to the requirement for a “manifest representation”. This expression must be read in context. The key difference between estoppel by representation and estoppel by convention is that in estoppel by representation, one party must make a representation to the other party on which the other party relies, whereas, in estoppel by convention, neither party need have made a representation to the other party so long as they both proceeded on a shared assumption and were each aware of the other’s assumption: see Ryan v. Moore , at paras. 54, 62. [333] In Grasshopper Solar Corporation v. Independent Electricity System Operator , 2020 ONCA 499, leave to appeal refused, [2020] S.C.C.A. No. 360 and No. 361, Huscroft J.A. made explicit another element of the test that I believe was implicit: the party’s reliance on the shared assumption must have been reasonable. Huscroft J.A. noted, at para 54: Although the doctrine of estoppel cannot vary the terms of a contract, it may operate to prevent a party from relying on the terms of the contract to the extent necessary to protect the reasonable reliance of the other party . Thus, the doctrine has the potential to undermine the certainty of contract and must be applied with care, especially in the context of commercial relationships between sophisticated parties represented by counsel. Estoppel is a fact specific doctrine and the concern noted by Bastarache J. in Moore , at para. 50 remains apposite: "estoppels are to be received with caution and applied with care". [Emphasis added, citation omitted.] [334] Huscroft J.A. added, at para. 55, that estoppel by convention “is a relatively rare form of estoppel,” and, at para. 56, “Estoppel exists to protect reasonable reliance: it must be reasonable to adopt a particular assumption and reasonable to act in reliance on it” (emphasis in original, citations omitted). [335] This orientation anchors estoppel by convention in the root principle of the common law of contract, which is to give effect to the reasonable expectations of contracting parties as set out in the text of their contract: see Martin v. American International Assurance Life Co. , 2003 SCC 16, [2003] 1 S.C.R. 158, at paras. 12, 16; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. , 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 5; Onex Corp. v. American Home Assurance Co. , 2013 ONCA 117, 114 O.R. (3d) 161, at paras. 106, 108, leave to appeal refused, [2013] S.C.C.A. No. 178; and Dumbrell v. The Regional Group of Companies Inc. , 2007 ONCA 59, 85 O.R. (3d) 616, at paras. 51-53. [13] [336] Parol evidence figures in this case. Evidence of what a party said or did is often admissible as part of the narrative of a contractual dispute. It is undoubtedly admissible to found an estoppel, as stated in Chartbrook Limited v. Persimmon Homes Limited , [2009] UKHL 38, at para. 42: The rule excludes evidence of what was said or done during the course of negotiating the agreement for the purpose of drawing inferences about what the contract meant. It does not exclude the use of such evidence for other purposes: for example, to establish that a fact which may be relevant as background was known to the parties, or to support a claim for rectification or estoppel. These are not exceptions to the rule. They operate outside it . [Emphasis added.] [337] Such evidence is also available, by necessary implication, to challenge the veracity of an estoppel. (b) The Evidence [338] As the trial judge explained, the mistaken view of the trigger date appears to have originated in some correspondence from counsel for Fram in February 2007. It was then perpetuated in many statements, as my colleague outlines at paras. 156-172. Often, these statements were made by Romandale’s own representatives. This mistake was apparently not discovered until 2015 when Romandale’s new counsel pointed it out and it became the factual backbone to Romandale’s litigation strategy. [339] The trial judge described the situation, at paras. 103-105: It is Romandale's position that "amidst the to-ing and fro-ing" of Fram and Romandale's counsel in respect of Romandale's alleged breach of the COAs, Fram's counsel set in motion a mischaracterization of the availability of the Buy-Sell in s. 5.07 of the COAs that pervaded subsequent pleadings and affidavits relied on by the parties and that was ultimately identified and rectified by Romandale in 2015 when it changed counsel. It is alleged that this began in a letter dated February 26, 2007, when counsel for Fram wrote to counsel for Romandale alleging a breach of the COAs and asserting: The Elgin Mills Lands have not received Secondary Plan Approval, as defined in Section 5.07(a) in each of the Co-ownership Agreements. Therefore, the provisions dealing with Dispositions set out in Section 5.04, 5.05 and 5.07 are inapplicable. Whether or not this was the first time this incorrect position was stated or not, this position was clearly wrong in that as I have already stated, the Buy-Sell could also be triggered after termination of the DMAs, even before SPA , which I have found occurred in February 2005. This error in summarizing the Buy-Sell provisions of the COAs as only being available after SPA was also taken up by Kerbel and Romandale. For example, in the first recital to the Settlement Agreement the COAs are referred to, and with respect to the Buy-Sell provisions it is stated that "the rights may only be exercised after secondary plan approval has been obtained for the Lands ..." [emphasis added]. When Ms. Batner was retained by Romandale in 2015, Romandale was granted leave to amend its Statement of Defence to correct the mischaracterization that had pervaded the pleadings and tainted the parties' evidence until that time. As already stated, this error explains the evidence of Mrs. Roman-Barber and the positions of Romandale's former counsel in the period from 2007 to the time Ms. Batner was retained. [340] My colleague identifies the assumption that the buy-sell provision in the COAs could not be triggered until after SPA as the shared assumption on which estoppel by convention arises. This assumption, in her view, was held by all of the parties in 2010 when the Settlement Agreement was negotiated. Candidly, I doubt the veracity of this assertion, at least as it relates to Kerbel and Fram, and particularly to Mr. Kerbel. [341] The trial judge found that Mr. Kerbel knew he could have caused Romandale to trigger the buy-sell under the COAs at any time, because the DMAs had been terminated in February 2005: In his affidavit Mr. Kerbel swore that he and Mrs. Roman-Barber deliberately agreed to defer triggering the Buy-Sell in the August 2005 Agreement until after SPA because of Mr. Kerbel's reluctance to being dragged into the existing Bordeaux litigation regarding the DMAs and that their lawyers drafted the August 2005 Agreement to provide for this. He testified that he and Mrs. Roman-Barber and their lawyers agreed "and we specifically took [the DMAs] out of our deal because no judge had said [Bordeaux] was terminated". Romandale argues that this was false evidence and I agree. First of all, Mr. Kerbel abandoned that position during his cross-examination, when he admitted he could have caused Romandale to trigger the Buy-Sell before SPA under the August 2005 Agreement, and indeed that he would have when the Bordeaux litigation resolved: Q: [... I]f the Bordeaux litigation settled, you would have caused Romandale to trigger the buy/sell . You recall I asked you that question? A: Yes, I’m going to say I would have. Q: Pardon? A: I am going to say I would have. Q: You would have? A: Yes. [...] Q: And you wanted to be the decider on the timing and the amount of the buy/sell that Romandale would trigger with Fram. A: Well, the timing was as soon as I could , but the amount, yeah. Q: So when you say the timing was "as soon as I could", that just goes back to our last discussion. As soon as possible, as soon as you were satisfied that the Bordeaux litigation wasn't a problem, you would have caused Romandale to trigger the buy/sell. [14] A: Yes, I would have. [Emphasis added by the trial judge.] [342] The trial judge stated, at para. 314, that the “pith and substance” of the 2005 August Agreement was an “expedient land sale (Kerbel gets the Lands and Romandale gets the equity it required) without breaching the existing Land agreements [with Fram].” She noted accurately: “There was zero benefit to Romandale in putting off closing.” [343] What changed for all the participants was the development horizon. The trigger date acquired new saliency in 2009, when government decisions introduced a long delay in the development horizon. From development approvals that were, in 2005, anticipated in a few years, the development horizon went out many years, perhaps decades. The likely land use designations also changed, with the Snider Farm proposed for employment use, not residential development, reducing both the value of the Lands and Fram’s incentive as a home builder. [344] I noted in this court’s decision in First Elgin Mills Developments Inc. v. Romandale Farms Limited , 2014 ONCA 573, 324 O.A.C. 153, at paras. 31-32: “The process of moving raw land through the land development process is complex, time consuming, and expensive.” I added: “The outcome is frequently uncertain.” This is known to experienced land developers like Kerbel and Fram and experienced owners of development lands like Romandale. The agreements between the parties were built around these uncertainties, which came to pass in this case. [345] Because of the changes in the development horizon and the likely development permissions, both Kerbel and Fram had a substantially reduced appetite to complete the transactions contemplated by the COAs and the 2005 August Agreement. The trial judge explained: Both Mr. Giannone and Mr. Kerbel acknowledged at trial that these developments concerned them. They both admitted that they would have preferred shorter development timelines and a residential designation for the Snider Farm, as residential use would have made for a significantly better investment. Fram would have preferred residential land use rather than employment land use as the real way that Fram was to make money was largely tied to its homebuilding rights under the CMAs, which would be dead if the Lands remained employment lands. Mr. Kerbel admitted that by 2009 as a result of these developments, he was no longer in the mindset of closing with Romandale as soon as possible. Mr. Giannone admitted that by 2010 the Lands were a materially "different product". Mr. Giannone also admitted that because of his concerns about the real estate market, when he entered into the Settlement Agreement with Kerbel, he was not committed to buying half of Romandale's remaining interest in the Lands. He wanted to have that option in the future. He was careful to ensure that by entering into the Settlement Agreement it could not be construed a consent under the Conditional Agreement because if Fram had consented, the deal between Romandale and Kerbel could have closed. [346] I make several observations about where things stood upon execution of the Settlement Agreement by Kerbel and Fram. It was drafted by Kerbel and Fram to reflect their interests. It was an advantageous deal for two canny land developers, entirely at the risk and cost of the majority landowner, Romandale. The Settlement Agreement states that, under the COAs, the buy-sell could only be exercised after SPA had been obtained and that Romandale would sell its Remaining Interest to Kerbel under the 2005 August Agreement when the buy-sell could be exercised or when Fram consented. The Settlement Agreement goes on to provide that the sale of Romandale’s Remaining Interest to Kerbel “will take place after” SPA is obtained. Effectively, under the terms of the Settlement Agreement, Kerbel agreed not to cause Romandale to trigger the buy-sell provision under the COAs as it was empowered to do under the 2005 August Agreement. This elongation of time spared both Kerbel and Fram the obligation to come up with the money to finance the acquisition of land whose value had become uncertain, until SPA, when its value could be ascertained. [347] This allowed Kerbel to put off paying Romandale the fixed price of $160,000 per acre, negotiated in 2005, for many years, perhaps decades. With inflation over the ensuing years, the constant dollar value of the land would decline over that time at the sole expense of Romandale. [348] This also saved Fram, for the same period of time, from having to respond to the buy-sell provision in the COAs. Fram instead acquired a solid development partner, in Kerbel, with whom to share acquisition and development costs, and risks. And both Fram and Kerbel, being formidable adversaries, eliminated litigation risk and cost between them by settling their actions against each other. (c) The Principles Applied [349] In my view, the invocation by Kerbel and Fram of estoppel by convention fails. Any application of estoppel by convention in this case requires this court to account for the role that the supposedly shared but mistaken assumption regarding the interpretation of the COAs actually played in the formation of the Settlement Agreement. [350] Given Mr. Kerbel’s evidence that he knew the buy-sell could be triggered after the termination of the DMAs, and before SPA, as quoted by the trial judge and repeated at para. 341, above, it is very unlikely that Kerbel in particular, and Fram by implication, shared in Romandale’s mistaken interpretation of the trigger date in the COAs. I infer that it is much more likely that they knowingly took advantage of Romandale’s mistaken view, which had been repeated on many occasions. Ignorance of the true trigger date on the part of Kerbel and Fram, two savvy land developers, is highly implausible. Kerbel and Fram used the trigger date as a vehicle to put off payment to Romandale indefinitely. [351] My colleague alludes to the fact that none of the parties to this appeal resisted the claim that they had all shared in the mistaken assumption that the buy-sell could only be triggered after SPA. [352] It is true that estoppel by convention was not resisted on this basis. However, the trial judge found, at para. 87, that “Mr. Kerbel knew that [the buy-sell] could be triggered before SPA after termination of the DMAs”. At para. 89, she found Mr. Kerbel’s evidence that he had forgotten this fact “disingenuous”. A finding that Kerbel shared in the mistaken shared assumption that my colleague identifies is inconsistent with the trial judge’s findings, to which I would defer as factual determinations of credibility. The inferences I have drawn from these determinations are inescapable. [353] Further, “estoppels are to be received with caution and applied with care”: Ryan v. Moore , at para. 50. Because “the doctrine has the potential to undermine the certainty of contract [it] must be applied with care, especially in the context of commercial relationships between sophisticated parties represented by counsel”: Grasshopper Solar , at para. 54, per Huscroft J.A. Applying due caution and care, I cannot find an estoppel by convention where, given the evidence, one does not arise on the facts and the law, however argued by parties whose concern is less for the law than for their individual advantage. Here, the claimed estoppel by convention cannot survive Mr. Kerbel’s knowledge, when the Settlement Agreement was negotiated, that the shared assumption was mistaken. This can be seen in two ways. [354] First, given the fact of Mr. Kerbel’s knowledge, I have difficulty accepting that the assumption that the buy-sell could not be triggered until after SPA was shared in the manner required for estoppel by convention. Bastarache J. notes that the “crucial requirement for estoppel by convention, which distinguishes it from the other types of estoppel, is that at the material time both parties must be of ‘a like mind’”: Ryan v. Moore , at para. 61 (citations omitted). Further, estoppel by convention requires “mutual assent”: Ryan v. Moore , at para. 62. Where one party knows that the other party is mistaken and chooses to acquiesce in their mistake rather than correct it, they were plainly not of like minds nor did they mutually assent. [355] Second, Mr. Kerbel’s knowledge that the assumption was incorrect renders unreasonable any reliance by Kerbel and Fram on the mistaken trigger date. Mr. Kerbel was under no illusion that this reading was not correct, as the trial judge found. Nor had he forgotten what the correct reading was, as she also found. As noted above, I would defer to those findings as factual determinations of credibility. They also comport with the commercial realities. It was not reasonable of Kerbel and Fram to rely on Romandale’s interpretation of the trigger date, knowing that it was mistaken. [356] These two reasons are sufficient to dismiss the estoppel by convention arguments put forward by Kerbel and Fram. I conclude that the legal basis for estoppel by convention is not made out on the facts of this case. This conclusion obliges me to consider whether Kerbel repudiated or breached the 2005 August Agreement, a task that my colleague was spared by her view of estoppel, and to which I now turn. (3) Kerbel Did Not Breach the 2005 August Agreement by Entering Into the Settlement Agreement with Fram [357] It is necessary to put the 2005 August Agreement in its proper context or factual matrix before assessing whether the trial judge properly assessed Kerbel’s alleged breaches. (a) The Context [358] The court must survey the contractual landscape in this case with a clear eye. In my view, the trial judge’s manifest sympathy for Romandale was misplaced. Romandale did not occupy the moral high ground in this bruising corporate battle, as I will explain. [359] It is a truism that contracting parties seek their own ends. An important aspect of contractual design, as Swan and Adamski observe, at p. 148, is allocating risk between the contracting parties: [M]uch contract drafting is focused on the allocation of risk, on the need to make clear just how the risks associated with an activity or the actual operation of the contractual relation, are not only allocated but understood to be allocated. It is bizarre for a court to be — or to appear to be — unaware of this role, one performed by the majority of members of the legal profession. Solicitors would be aghast if a court, in interpreting a contract, were to focus on the parties’ “intentions” and ignore the efforts of one party to shape the other’s expectations, in the light of what the first party was prepared to do. Such “intentions” are nothing but a judicial construct, a chimera, and wholly fanciful. [360] The root contractual documents in this case are the 2003 COAs between Romandale and Fram. Romandale was looking for a land developer to assist it in bringing the Lands to the point at which they could be used for residential purposes. Fram became Romandale’s business partner for this purpose. As the trial judge found: The plan was that Romandale and Fram would own the Lands and Bordeaux would manage the requirements for the development of the Lands, so they could be designated for residential use following [SPA], a stage of the municipal planning approvals process, Fram would then buy lots at market value and build homes and share the profits with Romandale. [361] The COAs, and the buy-sell provision in particular, were carefully designed to allow each party to extract the maximum value for its interest in the Lands at the point that either party chose to force the other to buy its interest. [362] By entering the COAs, Romandale got money (by selling the five percent interest in the Lands to Fram) and Fram got an exclusive option to purchase Romandale’s remaining interest. The key problem with the COAs was that Romandale was effectively stuck with Fram as a partner in developing the Lands. The COAs permitted Romandale to sell its remaining interest in the Lands to another developer, but only with Fram’s consent. Crucially, Fram’s consent, per s. 5.03 of the COAs, “may be unreasonably or arbitrarily withheld,” giving it control over any large disposition of the Lands by Romandale. (This provision was not unbalanced because it permitted Romandale to refuse consent to a disposition by Fram of its interest on the same basis.) [363] When Romandale’s need and appetite for money grew, it asked Fram to increase its interest in the Lands but Fram declined. Romandale’s need for more money, coupled with Fram’s reluctance to invest more, drove Romandale into a deal with Kerbel. (b) The 2005 August Agreement Favoured Kerbel [364] The 2005 August Agreement was cleverly designed to accomplish Romandale’s end of getting cash without breaching the COAs with Fram. Romandale did get more money. But Kerbel drove a careful bargain, recognizing both Romandale’s need for cash and the difficult and complex situation that the COAs posed for Kerbel with respect to Fram’s interest. [365] The 2005 August Agreement was drafted in Kerbel’s favour. This is not a surprise. Romandale had a strong need for funds and Kerbel was the able funder. As the trial judge stated, at para. 69, “Romandale needed to refinance a $6,000,000 Bank of Nova Scotia (“BNS”) mortgage on the Lands and wanted cash to make distributions to Romandale and Roman family members.” She noted, at para. 329, “Romandale actually received $16,703,000 of immediate value from Kerbel: $6,000,000 in new mortgage financing to retire the BNS Mortgage, $2,128,000 cash on the sale of 5% of the Elgin Mills Lands owned by Romandale, and $8,575,000 cash was paid on the sale of the Triple R Lands.” [366] The text of the 2005 August Agreement ceded a large measure of control to Kerbel, although it was constrained by Romandale’s need and obligation to continue to comply with the COAs. The agreement appointed Kerbel as “attorney and agent” for Romandale in material and specific respects. Section 5 was entitled "Irrevocable Appointment" and provides in part: ... Romandale hereby irrevocably appoints [Kerbel] as its exclusive true and lawful attorney and agent having full power of substitution, and [Kerbel] is hereby fully authorized as such to act on behalf of and/or give binding instructions to Romandale solely in connection with the exercise of the buy-sell rights pursuant to the Buy-Sell Provisions (as hereinafter defined). Romandale agrees that any and all decisions, operations, conduct and actions relating to the development of the Snider/McGrisken Property shall be within the exclusive control of [Kerbel] and Romandale shall assist in facilitating such control to comply with Section 5.10 of the Co-Owners Agreements over all decisions; operations, conduct and action exercisable by Romandale relating to the development and obtaining of development approvals for the Snider/McGrisken Property.... Romandale and [Kerbel] shall cooperate in getting the Snider/McGrisken Property included under the Town of Markham urban envelope for development purposes, and Romandale shall take all reasonable steps to reduce land wastage to as small an amount as possible, using Joanne Burnett, Jeff Kerbel and/or his designate to act on behalf of Romandale in taking such steps. [Emphasis added.] [367] The control that Romandale granted to Kerbel was related to compliance with the COAs, as the trial judge found at para. 202. She noted, at para. 203, that Romandale continued to exercise control of the development process throughout. [368] The trial judge correctly observed, at para. 202: “The opening sentence provides that Romandale appoints [Kerbel] as its agent ‘solely’ in connection with the Buy-Sell provisions in the COAs.” The trial judge added: “This makes sense as it was Kerbel's intention to buy Romandale's remaining interest in the Lands and so it would want control over when Romandale triggered the Buy-Sell” (emphasis added). I agree. [369] It is noteworthy that the 2005 August Agreement did not bind Kerbel to a date by which it was required to pull the buy-sell trigger in the COAs. Although Mr. Kerbel testified to his reluctance to trigger the provision while Romandale was litigating with Bordeaux, nothing in the 2005 August Agreement required him to pull the trigger when that litigation ended, even though, as the trial judge observed, the Bordeaux litigation was expressly referred to in s. 2(e). (Recall that the Bordeaux litigation was settled in October 2014.) [370] Only Fram’s consent to the sale of Romandale’s Remaining Interest to Kerbel under the 2005 August Agreement could force Kerbel to close. [371] Despite finding that Kerbel would have wanted control over the timing of the triggering of the buy-sell, the trial judge later found, somewhat inconsistently, at paras. 299-300, that the intention of the parties was to close as soon as possible and Kerbel’s discretion on when the buy-sell would be triggered was “not so broad as to allow it to transform a deal that was intended to close as soon as possible into a deal that was not to close until decades away”. She relied on the “time is of the essence clause” in para. 7 (c) of the 2005 August Agreement for this finding. [372] I agree with my colleague’s statement, at para. 233, that the “time is of the essence” clause “cannot be construed to mean that a ‘short closing horizon’ was part of the ‘pith and substance of the contract’.” With respect, the trial judge misapprehended the purpose and role of a “time is of the essence” clause in commercial contracts. Such a clause is engaged where a time limit is stipulated; it “does not serve to impose a time limit but rather dictates the consequences that flow from failing to comply with a time limit stipulated in an agreement”: see Di Millo v. 2099232 Ontario Inc. , 2018 ONCA 1051, 430 D.L.R. (4th) 296, at paras. 31-37, leave to appeal refused, [2019] S.C.C.A. No. 55. Benotto J.A. noted, in Di Millo , at para. 37: Notably, while the option clause includes two time limits, it is silent as to the time limit for exercising the option. However, the application judge found, that “providing notice to the Respondent that complies with the Agreement, 6 months after the option first arose, does not comply with the time is of the essence clause”. In my view, he erred in finding that the “time is of the essence” clause was engaged where no time was stipulated in the contract for exercising the option and in finding that there was non-compliance with the “time is of the essence” clause. Those errors tainted his finding that the option had expired by the time the appellant gave notice. Those words apply here with necessary modifications. The trial judge’s reliance on the “time is of the essence” clause was an error of law. [373] Mr. Kerbel testified that, in the early days when the development process looked like it would move quickly to a happy outcome, he wanted to close quickly. But the trial judge misapprehended this evidence to impose a contractual obligation on Kerbel to close as soon as possible, regardless. There is no express obligation in the 2005 August Agreement to close as soon as possible and there is no legal basis for implying one. Implying such an obligation is neither necessary to give business efficacy to the contract, nor would it pass the “officious bystander test”: see Energy Fundamentals Group Inc. v. Veresen Inc. , 2015 ONCA 514, 388 D.L.R. (4th) 672, at paras. 30-31; M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. , [1999] 1 S.C.R. 619, at para. 27; Canadian Pacific Hotels Ltd. v. Bank of Montreal , [1987] 1 S.C.R. 711, at p. 775. [374] The 2005 August Agreement provided Kerbel with other advantages. The fixed-price of $160,000 per acre to be paid to Romandale on closing was above the 2005 current market value for the McGrisken and Snider Farms but the fact that it was a fixed-price contract minimized the risk to Kerbel and capped Romandale’s return. In other words, Romandale gave up its right to share in any increases in the value of the Lands, to Kerbel’s benefit. Had the development horizon contemplated by the parties in 2005 been met, then Romandale’s return would have been limited to the fixed-price; any increase in the value of the Lands thereafter would have been enjoyed by either Kerbel or Fram. One of them would have ended up with the Lands at a higher price through the buy-sell mechanism in the COAs, if they did not come to some other agreement. [375] The 2005 August Agreement gave Romandale the opportunity to carry out an end run on Fram and its exclusive option to buy the rest of the Lands. The agreement was cleverly designed but it put Fram and Kerbel on a collision course. (c) The Settlement Agreement [376] As noted earlier, the development horizon changed substantially. By 2010, Kerbel and Fram were in lawsuits with each other. Neither was anxious to acquire all of the Lands immediately through the operation of the buy-sell provision, nor did they wish to give up their interests in the land. Their way out of the impasse was the Settlement Agreement, by which they ended up sharing costs. This was a practical outcome for experienced land developers. (d) Kerbel’s Alleged Breaches of the 2005 August Agreement [377] Romandale’s revised litigation strategy targeted s. 5 of the Settlement Agreement: [Fram] does not by this settlement agreement or otherwise consent to the transaction referred to in paragraph 2 of the August 29, 2005 Agreement. It is the intention of the parties hereto that the purchase and sale of Romandale’s Remaining Interest in the Lands pursuant to these Minutes of Settlement will take place after Secondary Plan Approval for the Lands has been obtained. [378] The trial judge found that Kerbel breached the 2005 August Agreement, at para. 310: “By entering into the Settlement Agreement, Kerbel totally fettered its discretion as to when to cause Romandale to trigger the Buy-Sell just because it no longer wanted to close the purchase of Romandale's Remaining Interest quickly.” [379] First, the trial judge found, at para. 319, that Kerbel had a fiduciary duty to Romandale that it breached by entering into the Settlement Agreement. [380] There is no scope for the imposition of fiduciary duties on Kerbel. That would oblige Kerbel to act solely in the best interests of Romandale, which is the antithesis of the self-interest that contracting parties in commercial contracts are generally entitled to pursue. In Hodgkinson v. Simms , [1994] 3 S.C.R. 377, [1994] S.C.J. No. 84, the court said, at p. 414, para. 38: Commercial interactions between parties at arm's length normally derive their social utility from the pursuit of self‑interest, and the courts are rightly circumspect when asked to enforce a duty (i.e., the fiduciary duty) that vindicates the very antithesis of self‑interest…. [T]he law does not object to one party taking advantage of another per se , so long as the particular form of advantage taking is not otherwise objectionable. [Citations omitted.] [381] As noted, the wording of the 2005 August Agreement was in Kerbel’s favour in order to avoid any such subordination either to Romandale entirely or to some notional conception of their “mutual best interests”, as Romandale argues. [382] It is possible for a contracting party to accept a fiduciary duty. Romandale submits that because the 2005 August Agreement explicitly made Kerbel Romandale’s “lawful attorney and agent” for some purposes, that principle is applicable here. But this misconstrues the purpose of Kerbel’s appointment as Romandale’s attorney and agent, which was to leave the timing of the triggering of the buy-sell under the COAs in Kerbel’s sole control without any further dependence on Romandale. Kerbel, as the funder, wanted to control all aspects of the exercise of the buy-sell provisions in the COAs. As the trial judge herself stated, this made sense. [383] I would set aside the trial judge’s holding that Kerbel owed Romandale a fiduciary duty as an error in law. [384] Second, the trial judge found, at para. 310, that Kerbel breached its duty of good faith to Romandale under the 2005 August Agreement: By entering into the Settlement Agreement with Fram, Kerbel acted in its own self-interest, to the detriment of Romandale's interests. Kerbel undermined the entire value of the August 2005 Agreement for Romandale. Without a doubt Kerbel did not act in good faith. [385] The trial judge invoked the “the duty to act in good faith” citing Bhasin v. Hrynew , 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 65, and the expectation that a party exercising discretion is required to do so in good faith, citing Greenberg v. Meffert (1985), 50 O.R. (2d) 755 (C.A.), at paras. 18 and 26, leave to appeal refused, [1985] 2 S.C.R. ix. Had the authorities been available, the trial judge would likely have invoked C.M. Callow Inc. v. Zollinger , 2020 SCC 45, and Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District , 2021 SCC 7, for the same propositions. [386] I do not agree. It is not obvious to me what role the doctrine of good faith in contractual performance should play in this complex commercial setting. Courts should be very reluctant to interfere in the dealings of hard-headed business people pursuing their competitive goals. This pursuit is not forbidden in a market economy: it is expected, as the Supreme Court observed in Hodgkinson , at p. 414, para. 38, quoted earlier. [387] The parties were sophisticated, resourced and professionally advised throughout. No doubt both Fram and Kerbel have deeper pockets but there is no scope for invoking the concept of unequal bargaining power in this context without, by necessary implication, imperilling any larger corporation’s ability to engage in commerce with smaller entities. The language in all of the agreements was carefully negotiated and chosen to allocate the parties’ respective risks and responsibilities, benefits and burdens. [388] This case illustrates operations in the real world. To achieve its ends, in negotiating the Settlement Agreement with Fram, Kerbel essentially pulled the same move on Romandale that Romandale had pulled on Fram in entering into the 2005 August Agreement with Kerbel. [389] Seen through the good faith lens, Romandale could be criticized for defeating Fram’s exclusive option to the Lands via the 2005 August Agreement with Kerbel. But all Romandale was doing was pursuing its own ends within the limits of the contractual language in the COAs in order to raise cash by extracting value from all of its lands, including the McGrisken and Snider Farms. (I note that by entering into the 2005 August Agreement, Romandale did not breach the COAs, contrary to Fram’s assertions in the 2007 and 2008 actions. The trial judge dismissed those actions and Fram did not appeal the dismissals.) [390] Similarly, by entering into the Settlement Agreement, all Kerbel was doing was pursuing its own ends within the limits of the contractual language in the 2005 August Agreement in order to reduce its exposure to the land and to the risks posed by the litigation with Fram. [391] The text of a contract matters in discerning the parties’ reasonable expectations. Kerbel never undertook to perform its obligations under the 2005 August Agreement for Romandale’s benefit, or even for their “mutual benefit,” as Romandale argues. The parties reasonably expected that the commercial realities would pressure all sides to move with alacrity. But Kerbel did not bind itself to do so, wisely in retrospect, given how the commercial realities have changed. This is not unusual in the fraught sphere of land development in Ontario, and particularly in the area surrounding Toronto. What “gutted” the transactions was not the Settlement Agreement but the changed development horizon that affected all the parties adversely. [392] Nor is it clear to me what the invocation of good faith performance would contribute in this setting. I note the submission, recorded by the trial judge, at para.  326: Romandale submits that it need not point to a specific date on which Kerbel must have caused it to trigger the Buy-Sell, nor does this Court need to pinpoint a date, in order to find that a fiduciary duty existed or to find that there has been a repudiatory breach arising from Kerbel's breach of same (among other contractual obligations).… In this case, it is clear the line was crossed when Kerbel settled with Fram in 2010 and deliberately ensured the Buy-Sell would never be triggered before SPA (if at all), in furtherance of its own self-interests and in complete contravention of Romandale's interests. [393] Romandale’s refusal to specify a date is noteworthy because if the date does not comport with Kerbel’s best business interests, as permitted by the 2005 August Agreement, it would be purely arbitrary. I note in passing that the earliest date would be after the Bordeaux litigation settled, which was in October 2014. [394] Nor is it clear to me that, had Kerbel and Fram never entered into the Settlement Agreement and had Fram not consented to the sale, there would be any obligation on Kerbel even today to cause Romandale to trigger the buy-sell provision in the COAs. [395] Finally, I note that if there is a “right” date for the transfer of Romandale’s Remaining Interest to Kerbel, it would be sixty days after Fram consented to that transaction in 2018, as that is precisely what is stipulated in the 2005 August Agreement. [396] To conclude, the trial judge erred in finding that Kerbel breached the 2005 August Agreement and its duty of good faith performance by entering into the Settlement Agreement with Fram. I do not find any basis here for judicial tweaking via the doctrine of good faith performance, or for any judicial interference in the ordinary operation of these carefully negotiated contracts, which embody the reasonable expectations of the parties and which are fully capable of execution on their precise terms. [397] If Kerbel breached the 2005 August Agreement by entering into the Settlement Agreement with Fram, then that breach would have to be taken into account in the exercise of discretion as to whether to order specific performance. The behaviour of the parties is a relevant consideration in deciding whether to order specific performance: Matthew Brady Self Storage Corporation v. InStorage Limited Partnership , 2014 ONCA 858, 125 O.R. (3d) 121, at para. 32, leave to appeal refused, [2015] S.C.C.A. No. 50; Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd. , 2019 ONCA 746, 438 D.L.R. (4th) 374, at para. 31, leave to appeal refused, [2019] S.C.C.A. No. 420. But here there is no such breach. (4) By Entering Into the Settlement Agreement, Kerbel Did Not Repudiate Its Obligations Under the 2005 August Agreement. [398] Because I have found that Kerbel did not breach the 2005 August Agreement, on that ground alone, there is no basis for finding that Kerbel repudiated that agreement. [399] However, in my view the trial judge’s approach to the repudiation issue was wrong in principle and requires comment. Recall that Romandale argued that it is not required to close the 2005 August Agreement because Kerbel had repudiated that agreement by entering into the Settlement Agreement. The trial judge agreed and refused Kerbel’s request for an order compelling Romandale to specifically perform the 2005 August Agreement. [400] The trial judge deconstructed the 2005 August Agreement into constituent parts. This approach was wrong in principle. She extracted the conveyance of the McGrisken and Snider Farms from the 2005 August Agreement in order to deem that part of the agreement repudiated. This approach is not consistent with the holistic approach courts must take to carefully negotiated commercial agreements. Just as a court interpreting a contract must read the contract as a whole, a court analyzing whether a fundamental breach amounting to repudiation has occurred should consider both the alleged breach, and the obligations the breaching party has performed, in relation to the breaching party’s obligations under the whole contract: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47; 1193430 Ontario Inc. v. Boa-Franc Inc. (2005), 260 D.L.R. (4th) 659 (Ont. C.A.), at para. 50 , leave to appeal refused, [2006] S.C.C.A. No. 2. [401] I conclude that the trial judge erred in recruiting the doctrine of repudiation, because of the substantial prior performance on Kerbel’s part, which was valued by the trial judge at about $16 million. There is no basis upon which it could be said that Romandale was deprived of substantially all of the benefit it contracted for under the 2005 August Agreement: Boa-Franc Inc. , at para. 50; Majdpour v. M&B Acquisition Corp. (2001), 206 D.L.R. (4th) 627 (Ont. C.A.), at para. 31; Hunter Engineering Co. v. Syncrude Canada Ltd. , [1989] 1 S.C.R. 426, at p. 499, per Wilson J. [402] Contrary to the submissions of Romandale and the trial judge’s determination, Kerbel did not repudiate the 2005 August Agreement by entering into the Settlement Agreement, largely because much of the 2005 August Agreement had been performed to the benefit of both parties. It is simply too late for the proverbial egg to be unscrambled. It is too late for repudiation to play a useful role in analyzing the contractual relationships between Romandale and Kerbel. (5) Kerbel Is Entitled to Specific Performance of the 2005 August Agreement [403] I agree with my colleague’s analysis, at paras. 290-298, and with her conclusion that Kerbel is entitled to specific performance of the 2005 August Agreement. Released: April 1, 2021 “E.E.G.” “P. Lauwers J.A.” [1] When the parties entered into the various agreements, Markham was still a town in Ontario. It did not become a city until 2012. For ease of reference, I will refer to the municipality simply as “Markham”. [2] This term is explained in para. 19 below. [3] SPA is defined in s. 5.07 of the COAs as “an amendment of the official plan of the Town of Markham applicable to the Lands, obtained in accordance with the Planning Act (Ontario)”. [4] This term is explained in para. 20 below. [5] Romandale’s sale of 5% of its 95% interest in the Lands resulted in Kerbel acquiring a 4.75% undivided interest in the Lands. [6] Romandale received over $16 million in immediate value from Kerbel under the 2005 August Agreement. [7] In response, Bordeaux sues Romandale and Fram, alleging the termination was invalid and of no force or effect. Romandale settled the Bordeaux litigation in 2014. [8] The 2005 August Agreement was amended by an agreement dated March 14, 2006, to provide that any amount owing to Kerbel from a purchase price adjustment for non-developable acreage of the Triple R Lands, which was to be made at the end of the fifth year of the vendor takeback mortgage, would be set off against the eventual purchase price for the Remaining Interest in the Lands. [9] The parties were mistaken on this matter. Under s. 5.07 of the COAs, the buy-sell could have been exercised when the DMAs were terminated. Romandale terminated the DMAs in February 2005. Therefore, the buy-sell in the COAs could have been exercised as early as February 2005. [10] This may or may not have been a mistaken assumption. Whether, under the 2005 August Agreement, Kerbel could have required Romandale to trigger the buy-sell in the COAs before SPA is a point of contractual interpretation. As I have concluded that estoppel by convention applies to bar Romandale from contending that it could have been triggered pre-SPA, this point of contractual interpretation need not be decided. [11] As discussed below, the communications in Ryan v. Moore are an example of alleged shared assumptions that do not have sufficient clarity and certainty to satisfy the first criterion. [12] It will be recalled that Kiteley J. upheld this ruling on June 20, 2014. [13] Angela Swan and Jakub Adamski point out that courts have not always adopted an approach consistent with this principle: “Contractual Interpretation in the Supreme Court: Confusion Reigns Supreme” in Matthew Harrington, ed., Private Law in Canada: A 150-Year Retrospective (Toronto: LexisNexis, 2017) p. 115. See also Edward J. Waitzer and Douglas Sarro, “Protecting Reasonable Expectations: Mapping the Trajectory of the Law” (2016) 57:3 Can. Bus. L.J. 285. [14] The Bordeaux action was settled in October 2014.

COURT OF APPEAL FOR ONTARIO CITATION: Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 381 DATE: 20210602 DOCKET: C67533 and C67557 Gillese, Lauwers and Benotto JJ.A. DOCKET: C67533 BETWEEN Fram Elgin Mills 90 Inc. (formerly Frambordeaux Developments Inc.) Plaintiff and Romandale Farms Limited , Jeffrey Kerbel, 2001251 Ontario Inc. and First Elgin Developments Inc. Defendants ( Respondent /Appellants) AND BETWEEN Fram 405 Construction Ltd. and Bordeaux Homes Inc. Plaintiffs and Romandale Farms Limited , 2001251 Ontario Inc., First Elgin Developments Inc. and Jeffrey Kerbel Defendants ( Respondent /Appellants) AND BETWEEN Romandale Farms Limited Plaintiff (Respondent) and 2001251 Ontario Inc. Defendant (Appellant) AND BETWEEN 2001251 Ontario Inc. Plaintiff (Appellant) and Romandale Farms Limited Defendant (Respondent) DOCKET: C67557 BETWEEN Fram Elgin Mills 90 Inc. (formerly Frambordeaux Developments Inc.) Plaintiff (Appellant) and Romandale Farms Limited , Jeffrey Kerbel,2001251 Ontario Inc. and First Elgin Developments Inc. Defendants ( Respondent ) AND BETWEEN Fram 405 Construction Ltd. and Bordeaux Homes Inc. Plaintiffs ( Appellant ) and First Elgin Developments Inc. and Jeffrey Kerbel Defendants ( Respondent ) AND BETWEEN Romandale Farms Limited Plaintiff and 2001251 Ontario Inc. Defendant AND BETWEEN 2001251 Ontario Inc. Plaintiff and Romandale Farms Limited Defendant Chris G. Paliare and Tina H. Lie, for the appellants Jeffrey Kerbel, 2001251 Ontario Inc., and First Elgin Developments Inc. (C67533) Sheila R. Block, Jeremy Opolsky, Sara J. Erskine, and Benjamin Lerer for the appellants Fram Elgin Mills 90 Inc. (formerly Frambordeaux Developments Inc.) and Fram 405 Construction Inc. (C67557) Sarit E. Batner, Kosta Kalogiros, and Avi Bourassa, for the respondent Romandale Farms Limited (C67533 and C67557) Heard: September 8 and 9, 2020 by video conference On appeal from the judgment of Justice Nancy J. Spies, of the Superior Court of Justice, dated September 13, 2019, with reasons reported at 2019 ONSC 5322, and from the costs order, dated April 2, 2020. COSTS ENDORSEMENT [1] Four actions involving the Lands in this proceeding were tried together in the fall of 2018 (the “Actions”). Romandale was awarded costs of the Actions, on a substantial indemnity basis, in the amount of $2,708,651.57. Those costs were made payable on a joint and several basis by Fram and Kerbel. [2] Fram and Kerbel each appealed to this court. Their appeals were consolidated (the “Appeals”). The Appeals were successful. The parties agreed on costs of the Appeals but were unable to resolve the matter of costs below. This costs endorsement decides that matter. [3] For the reasons that follow, Fram and Kerbel are entitled to partial indemnity costs for the Actions, in the amounts that each sought. The Parties’ Positions Fram [4] Fram seeks partial indemnity costs of $1,147,595.63 for the Actions. It did not succeed on its 2007 and 2008 Actions and did not appeal the trial decisions on them. Nonetheless, Fram argues, as a result of the Appeals, it has achieved overall success and is entitled to its costs of the Actions. [5] Fram also relies on having beat the offer to settle the litigation which it and Kerbel jointly made in September 2018 (the “Settlement Offer”), just before the trial of the Actions. Romandale rejected their Settlement Offer. At the oral hearing of the Appeals, the parties each stated that entitlement to costs of the Actions was on a partial indemnity basis. Accordingly, Fram did not advance a claim for enhanced costs under r. 49.10 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [6] Finally, Fram contends that its costs are fair and reasonable. Kerbel [7] Kerbel seeks partial indemnity costs of $956,002.50 for the Actions. It says those costs are fair and reasonable and reflect its overall success. Kerbel contends that the Actions, although not formally consolidated, were effectively consolidated with the evidence being used, and argument permitted, on all issues by all parties. Moreover, it points out that Romandale sought – and was awarded – costs of the Actions against Kerbel and Fram on a joint and several basis. [8] Like Fram, Kerbel also relies on the fact that it beat the Settlement Offer. Romandale [9] Romandale accepts that Fram and Kerbel are entitled to their partial indemnity costs of the 2014 and 2016 Actions in which Kerbel claimed specific performance of the 2005 August Agreement. However, it submits that neither Fram nor Kerbel are entitled to costs of the 2007 and 2008 Actions which Fram unsuccessfully prosecuted against Romandale. As Fram did not appeal the results of those actions, Romandale’s success on those actions stands. Thus, Romandale submits, Fram should pay Romandale its partial indemnity costs of the 2007 and 2008 Actions and Kerbel is not entitled to its partial indemnity costs relating to those Actions. Analysis [10] Costs are not to be determined by considering success on an issue by issue basis. Rather, they are to be based on the overall success achieved by a party: Wesbell Networks Inc. v. Bell Canada , 2015 ONCA 33, at para. 21. In the circumstances of these Appeals, the same principle applies: costs of the Actions are to be determined by considering the overall success achieved by the parties as a result of the Appeals. [11] The Actions were tried together to ensure that the rights and interests of the parties, in the Lands, were properly determined. The Appeals determined those respective rights and interests with the result that Fram and Kerbel achieved overall success. The fact that Fram was unsuccessful on the 2007 and 2008 Actions does not detract from its overall success. Moreover, the Actions were intertwined. As the reasons of this court demonstrate, the evidence relating to the 2007 and 2008 Actions was directly relevant to the disposition of the Appeals. The fact that costs below were awarded jointly and severally as against Fram and Kerbel, in accordance with Romandale’s request, is telling in this regard. Had the Actions been severable, as Romandale now maintains, costs of the 2007 and 2008 Actions would have been payable by Fram alone. Instead, Fram and Kerbel were held jointly and severally responsible for costs of all of the Actions. [12] Further and importantly, Fram and Kerbel achieved greater success on the Appeals than their Settlement Offer, which Romandale rejected. [13] We are satisfied that Fram and Kerbel’s partial indemnity costs are reasonable. This can be seen by comparing them to Romandale’s partial indemnity costs of $2,283,089.26 for the Actions. As well, the amounts claimed and recovered were significant. The market value of the Lands in 2018 was $50,000,000. Finally, the matters in issue were complex, numerous, and very important to all the parties. Disposition [14] Accordingly, Fram and Kerbel are entitled to partial indemnity costs of the Actions in the amounts that each claimed. “E.E. Gillese J.A.” “P. Lauwers J.A.” “M.L. Benotto J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fresco v. Canadian Imperial Bank of Commerce, 2021 ONCA 46 DATE: 20210126 DOCKET: M51965 (C68801) & M51968 (C68649) Doherty, Zarnett and Coroza JJ.A. BETWEEN Dara Fresco Plaintiff (Respondent/Moving Party) and Canadian Imperial Bank of Commerce Defendant (Appellant/Responding Party) Louis Sokolov, Jody Brown and David O’Connor, for the moving party Linda M. Plumpton, Sarah Whitmore and John C. Field, for the responding party Heard: January 4, 2021 by video conference Zarnett J.A. A. Introduction [1] The respondent, Dara Fresco (“Ms. Fresco”), is the representative plaintiff in a class action against the appellant, Canadian Imperial Bank of Commerce (the “Bank”). She moves to quash two aspects of the appeals brought by the Bank from the judgment of Belobaba J. (the “motions judge”), made in the context of his disposition of common issues in the action. [2] Specifically, Ms. Fresco argues that although other aspects of the motions judge’s judgment are properly appealable to this court, those dealing with the effect of limitation periods and aggregate damages may only be appealed to the Divisional Court, with leave. [3] For the reasons that follow, I would dismiss the motions to quash. In my view, the limitations and aggregate damages aspects of the motions judge’s judgment were all part of his judgment on the common issues. This court has jurisdiction under s. 30(3) of the Class Proceedings Act, 1992 , S.O. 1992, c. 6 (the “ CPA ”), over appeals from a judgment on the common issues, and thus over these aspects of the appeals. B. The context (1) The Action, Its Certification, and the Common Issues [4] The class represented by Ms. Fresco is comprised of approximately 31,000 current and former Bank employees. The action concerns class members’ rights to compensation for overtime worked in the period from 1993 to 2009. [5] Although certification was originally refused by the Superior Court and the Divisional Court, upon further appeal to this court, the action was ultimately certified as a class proceeding in 2012: Fresco v. Canadian Imperial Bank of Commerce , 2012 ONCA 444, 293 O.A.C. 248. [6] When this court made the certification order, it articulated (i.e. certified) eight common issues for determination. Broadly speaking, common issues 1 to 5 asked whether the Bank breached a contractual or other duty by allowing or encouraging class members to work overtime, not properly recording their time, and not ensuring they were properly compensated for overtime worked. Common issue 6 asked whether the elements of unjust enrichment were established in favour of class members. If the answers to any of common issues 1 to 6 were “yes”, common issue 7 asked what remedies class members were entitled to, and common issue 8 asked whether the class was entitled to an award of aggravated, exemplary or punitive damages. [7] This court did not certify a separate common issue about the effect of limitation periods, stating: “[t]he issue of limitation periods is not an ingredient of the class members’ claims, but instead may be relied on by [the Bank] in its defence”: at para. 108. [8] As well, this court refused to certify a common issue concerning an aggregate assessment of damages, stating that for the reasons in Fulawka v. Bank of Nova Scotia, 2012 ONCA 443 , 111 O.R. (3d) 346, leave to appeal refused [2012] S.C.C.A. No. 326, “the preconditions in s. 24(1) of the CPA for ordering an aggregate assessment of monetary relief cannot be satisfied in this case”: at para. 109. (2) The Motions Judge’s Judgment [9] The parties each moved for summary judgment on the common issues and for related relief. The motions judge held three hearings and issued three sets of reasons. [10] In his first set of reasons, the motions judge addressed the disposition of common issues 1 through 5, which he denominated the liability issues. He found in favour of the plaintiff class on all five issues : Fresco v. Canadian Imperial Bank of Commerce , 2020 ONSC 75. [11] In his second set of reasons, the motions judge found in favour of the plaintiff class on issue 6 (unjust enrichment) and on issue 7 (remedies), finding that class members are entitled to certain declarations as well as to damages. He found against the plaintiff class on common issue 8, finding no entitlement to aggravated, exemplary or punitive damages. He also certified an additional common issue—“Can the defendant’s monetary liability be determined on an aggregate basis? If so, in what amount?”—and deferred an answer to that additional issue until a further hearing following an exchange of expert reports. He rejected the Bank’s argument that this court’s refusal to certify aggregate damages as a common issue, and the doctrine of res judicata , precluded him from proceeding as he did. He held that the decision in Pro-Sys Consultants Ltd. v. Microsoft Corporation , 2013 SCC 57, [2013] 3 S.C.R. 477, gave him that power: Fresco v. Canadian Imperial Bank of Commerce , 2020 ONSC 4288. [12] In his third set of reasons, the motions judge rejected the Bank’s request for a class-wide limitations order barring all class members’ claims before certain dates (2007 in some cases and 2003 in others). He held that although the request rested on a plausible procedural foundation, as it was advanced as part of the summary judgment motion, “the bank’s limitations defence cannot fairly be determined on a class-wide basis but, as per the usual practice, should be deferred to the individual hearings stage”. He also refused to rule on the Bank’s argument that s. 28 of the CPA did not have the effect of suspending the running of limitation periods for class members outside of Ontario, as the issue was “premature” until individual hearings were conducted: Fresco v. Canadian Imperial Bank of Commerce , 2020 ONSC 6098, at paras. 9, 22-23, 53 and 57. [13] Subsequent to oral argument of these motions to quash, counsel provided this court with the formal judgment of the motions judge. His answers to the common issues are set out in paragraph 1 and Schedule A to the formal judgment, his addition of a common issue regarding aggregate damages is set out in paragraph 2, and his rejection of the Bank’s request for a class-wide limitations order is set out in paragraph 3. (3) The Appeals [14] The Bank has appealed from all of the motions judge’s determinations. Although three notices of appeal were filed (one after each set of the motions judge’s reasons) the appeals have been consolidated and will proceed together on all issues subject to the result of this motion. (4) The Moving Party’s Position [15] Ms. Fresco does not dispute that the Bank may appeal to this court from the aspects of the judgment that determined common issues 1 through 5 (liability), 6 (unjust enrichment), and 7 (remedies), under s. 30(3) of the CPA .  But she takes the position that the motions judge’s decision to certify an additional common issue concerning aggregate damages, and his decision to refuse a class-wide limitations order and to defer limitations issues to individual hearings, can only be appealed to the Divisional Court with leave. [16] With respect to the motions judge’s determination certifying aggregate damages as an additional common issue, Ms. Fresco argues that the appeal route is governed by s. 30(2) of the CPA [1] , in effect at the relevant time, which provided that “an order certifying a proceeding as a class proceeding” may only be appealed to the Divisional Court with leave.  If s. 30(2) does not govern, she argues that the appeal route is governed by the Courts of Justice Act , R.S.O. 1990, c. C.43 (the “ CJA ”) . Under s. 6(1)(b) of the CJA , this court only has jurisdiction where the order of Superior Court judge sought to be appealed is final. Ms. Fresco submits that as no decision to grant or award aggregate damages has yet been made, the motions judge’s determination was interlocutory. [17] With respect to the limitations issue, Ms. Fresco argues that s. 6(1)(b) of the CJA governs the appeal route. Since the motions judge simply deferred limitations questions to the individual hearings stage, no final order was made, and this court lacks jurisdiction over the appeal on that issue. C. Analysis [18] I do not accept Ms. Fresco’s arguments. [19] Whether this court has jurisdiction over an appeal from a judgment or order in a class proceeding is a two-step analysis. The first question is whether the appeal is from a judgment or order covered by s. 30 of the CPA , and if so, whether s. 30 directs the appeal to this court. If the order is not one covered by s. 30 of the CPA , then whether the appeal lies to this court is determined by the provisions of the CJA . In the latter circumstance, the primary determinant is whether the order is final, as opposed to interlocutory: Bancroft-Snell v. Visa Canada Corporation , 2019 ONCA 822, 148 O.R. (3d) 139, at para. 16. [20] The version of the CPA that governs this appeal provided, in s. 30(2) and (3), as follows: (2) A party may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Superior Court of Justice as provided in the rules of court. (3) A party may appeal to the Court of Appeal from a judgment on common issues and from an order under section 24, other than an order that determines individual claims made by class. [21] For efficiency, the motions judge held three hearings and issued three sets of reasons addressing a number of issues. But this should not obscure the appropriate focus on the question of the proper appeal route. The matters that the motions judge dealt with all arose on motions for judgment on the common issues. The determinations he made about limitations and aggregate damages were part of his judgment on the common issues. This court therefore has jurisdiction over all aspects of the appeals under s. 30(3) of the CPA . It is not necessary to consider whether, viewed discreetly, the determinations of these issues were final or interlocutory, a distinction that is not imported into s. 30(3) of the CPA . (1) Limitations [22] Two factors combine to entail the conclusion that the limitations aspect of the judgment is appealable as part of the judgment on the common issues. First, the limitations issue was raised as a defence on a class-wide basis, and second, the motions judge rejected the defence as being applicable on a class-wide basis, in the context of his disposition of the common issues. [23] As was permitted by this court when it certified the action as a class proceeding, the limitations issue was raised by the Bank as a defence to the claim of the plaintiff class on the common issues. As a defence, it was raised to alter or restrict the judgment that would otherwise be given on the common issues. The limitations defence, in the form of a request for a class-wide limitations restriction, was part of the Bank’s position on the summary judgment motions. [24] If the motions judge had accepted the Bank’s defence that, on a class-wide basis, claims before certain dates were statute barred, the judgment on the common issues on liability or remedy would have reflected that restriction. [2] As the defence on a class-wide basis was not accepted, the common issues judgment on liability and remedy reflects no class-wide restriction of claims. As in any appeal from a judgment, whether a defence should have been accepted and altered or restricted the judgment given is fair game for argument on the appeal. It is part of the appeal from the judgment itself. [25] As much as it may be germane to whether there is any merit to the Bank’s complaint about how the limitations defence was dealt with by the motions judge, it is not germane to the appeal route that the motions judge said that limitations issues could be raised at the individual hearings stage. Answering common issues without giving effect to a defence that is asserted to be applicable on a class-wide basis, even while holding that the defence may be raised in individual hearings, is still a judgment on the common issues for appeal purposes. [3] (2) Aggregate Damages [26] Similarly, it is the nature of the power exercised by the motions judge to add aggregate damages as an issue, and the context in which he exercised it, that entail the conclusion that that aspect of the judgment is appealable as part of the judgment on the common issues. [27] In certifying aggregate damages as an additional common issue, the motions judge did not make an order certifying the proceedings as a class proceeding within the meaning of s. 30(2) of the CPA . Such an order had already been made by this court in 2012. Accordingly, the appeal route in s. 30(2) of the CPA is inapplicable. [28] Nor did the motions judge make an order adding a common issue prior to, or in circumstances divorced from, his disposition of the common issues. Rather, the motions judge was exercising the power referred to by the Supreme Court of Canada in Pro-Sys Consultants , where Rothstein J. stated, at para. 134: The ultimate decision as to whether the aggregate damages provisions of the CPA should be available is one that should be left to the common issues trial judge. Further, the failure to propose or certify aggregate damages, or another remedy, as a common issue does not preclude a trial judge from invoking the provisions if considered appropriate once liability is found. [29] In other words, the motions judge relied on a power that permits the judge deciding the common issues of liability and remedy, to add aggregate damages as an additional common issue. His directions toward an award of aggregate damages are  therefore part of his judgment on the common issues, as is his rejection of the Bank’s defence to the exercise of that power, namely that this court’s prior refusal to certify aggregate damages as a common issue in this case in the 2012 certification order gave rise to res judicata . [30] That the motions judge left, to a further hearing, the question of whether  aggregate damages would actually be ordered payable, goes to the correctness of his exercise of the power and, perhaps, to whether the issue is ripe for appeal, but is not relevant to where the appeal lies. D. Conclusion [31] For these reasons, I would dismiss the motions to quash. In accordance with the agreement of the parties, the Bank is entitled to its costs of the motions fixed in the sum of $10,000, inclusive of disbursements and applicable taxes. Released: January 26, 2021 “DD” “B. Zarnett J.A.” “I agree. Doherty J.A.” “I agree. S. Coroza J.A.” [1] Recent amendments to the CPA came into effect October 1, 2020 but they do not apply to this proceeding. As amended, the CPA now directs that appeals from orders certifying or refusing to certify a class proceeding be brought to this court. [2] It would not matter if the answers to the questions of whether the Bank had liability and whether there was a remedy in damages appeared in one paragraph of the formal judgment and the restriction—that there was no liability or damages  before a certain date—appeared in a different paragraph. They would have to be considered together as the judgment on the common issues. [3] Just as the judgment on the common issue of remedies, which specified a remedy of damages, is properly appealable to this court even though no amount is thereby awarded to any person, and even though, absent consideration of aggregate damages, individual hearings would be required to deal with whether any individual had proven an amount that the Bank would have to pay.

COURT OF APPEAL FOR ONTARIO CITATION: Goldentuler v. Simmons Dasilva LLP, 2021 ONCA 219 DATE: 20210407 DOCKET: C68561 Juriansz, Nordheimer and Jamal JJ.A. BETWEEN Edward Goldentuler Plaintiff (Respondent) and Simmons Dasilva LLP and Ray Thapar Defendants (Appellants) Sean Dewart and Adrienne Lei, for the appellants Edward Goldentuler, in person Heard: April 6, 2021 by videoconference On appeal from the order of Justice Jill Cameron of the Superior Court of Justice, dated July 14, 2020 with reasons reported at 2020 ONSC 4315. REASONS FOR DECISION [1] The defendants appeal from the order of the motion judge that dismissed their motion, pursuant to r. 21.01(3)(b) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to dismiss this action on the basis that the plaintiff is without legal capacity to commence or continue the action. At the conclusion of the hearing, we allowed the appeal with reasons to follow. We now provide our reasons. [2] The essential background facts are that the respondent's late brother was a lawyer in private practice. Before his death, he commenced an action against a group of former employees who had removed 120 client files from his office in the dead of night and deleted his electronic records concerning the stolen files. [3] The respondent, who is also a lawyer, obtained an order to continue the action in the name of his late brother's Estate. The claim proceeded to an uncontested damages assessment and the Estate obtained judgment for $318,174.55. [4] Thereafter, purportedly in his capacity as Estate trustee, the respondent retained the appellants to pursue an appeal in this Court. The appeal was successful and the damages award in favour of the Estate was increased to $901,791.71. [1] [5] The appellants were successful in having the judgment satisfied, but a dispute arose concerning their fees for the appeal, following which the respondent commenced this solicitor's negligence action in his own name and in his personal capacity. He seeks $2 million in damages, alleging that the appellants fell below the standard of care in conducting the appeal. [6] The appellants brought a motion to dismiss the action on the grounds that the respondent does not have legal capacity to sue them, as the appellants had acted for the Estate, not the respondent personally. Further, the appellants submitted that it was only the Estate that could have suffered any damages from the alleged negligence, not the respondent personally. [7] In response to the motion, the respondent alleged for the first time that the Estate's chose-in-action against the ex-employees had been assigned to him, before the Estate retained the appellants, as part of his purchase of his late brother’s law firm from the Estate. [8] The motion judge dismissed the motion to dismiss the action. In doing so, the motion judge found as a fact that the appellants were aware that the respondent had purchased the law firm from his late brother’s wife, who was the executor of the Estate. A copy of the agreement had been sent to the appellants’ lawyers by the respondent on February 7, 2020 in response to their motion to dismiss. The motion judge then stated the core issue she was to determine. She said, at para. 29: However, the issue is not whether the defendants knew about the purchase of the law firm. The issue is who retained the defendants on the appeal, therefore who was owed a duty of care by them and who would be affected by the outcome of the appeal. [9] The motion judge concluded that the respondent had capacity to bring the action. She based this conclusion on two facts: (i) the account for legal fees was directed to the respondent and (ii) the respondent was the only party who could have been affected by the outcome of the appeal since he had purchased the law firm. [10] In our view, the motion judge made a palpable and overriding error in her determination of the motion. She did so by not addressing the crucial question that she herself had stated, that is, who retained the appellants? The answer to that question is clear, it was the Estate. It was the Estate in whose name the original litigation was continued, it was the Estate that was the party on the appeal, and it was the Estate for whose benefit the damage award was increased. On that latter point, we note that it was the Estate to whom payment was made on the ultimate judgment and it was the Estate on whose behalf the retainer agreement with the appellants was signed. [11] We would add that nothing of consequence turns on the fact that the account for legal fees was directed to the respondent. He was the individual who provided instructions to the appellants on behalf of the Estate. The addressee of the account does not change on whose behalf the appellants were retained. We also note that the account was expressly stated to be for fees relating to the matter of “Estate of Henry Goldentuler v. Robert Crosbie et al”. [12] In light of our conclusion, it is unnecessary to address the arguments regarding the possible application of the Conveyancing and Law of Property Act , R.S.O. 1990, c. C.34 to this case. However, the fact that we do not need to address those arguments should not be taken as meaning that we agree with the position taken by the motion judge on the issue, or on her interpretation of the Act. [13] The respondent does not have a personal claim arising from the retainer of the appellants given the party on whose behalf the appeal was brought and on whose behalf the appellants were retained. He does not, therefore, have capacity to bring the solicitor’s negligence claim. [14] In the event of this result, in his factum, the respondent asked that this court amend the title of proceeding to add the proper plaintiff. It is simply too late for the respondent to seek such relief. Among other reasons, we do not have any indication whether the Estate would be prepared to be added as a plaintiff in this action. The consent of the Estate would be necessary for that purpose. It also does not address what appears to be some potential difficulties with the original action. [15] It is for these reasons that the appeal was allowed and the order below set aside. In its place, the motion is granted, and the action is dismissed. The appellants are entitled to their costs of the appeal in the agreed amount of $9,000 inclusive of disbursements and HST. As also agreed, the costs award below is reversed so that it is now in favour of the appellants. “R.G. Juriansz J.A.” “I.V.B. Nordheimer J.A.” “M. Jamal J.A.” [1] Goldentuler Estate v. Crosbie , 2017 ONCA 591

COURT OF APPEAL FOR ONTARIO CITATION: Great Northern Insulation Services Ltd. v. King Road Paving and Landscaping Inc., 2021 ONCA 367 DATE: 20210601 DOCKET: C67541 Doherty, Nordheimer and Harvison Young JJ.A. BETWEEN Great Northern Insulation Services Ltd. Plaintiff/Appellant (Respondent) and King Road Paving and Landscaping Inc. also known as King Road Paving & Landscaping Inc., Louis Alaimo, Agostino Plati, Giuseppina Plati, and Scotia Mortgage Corporation Defendants/Respondents Jonathan Frustaglio, for the appellant Sutherland Law Michael Odumodu, for the respondent Great Northern Insulation Services Ltd. Heard: April 30, 2021 by video conference On appeal from the order of the Divisional Court (Justices David L. Corbett, Frederick L. Myers and Elizabeth C. Sheard), dated June 14, 2019, with reasons reported at 2019 ONSC 3671, 71 C.B.R. (6th) 187, varying the judgment of Justice Robert Charney of the Superior Court of Justice, dated December 14, 2017, with reasons reported at 2017 ONSC 7675, 86 C.L.R. (4th) 331. Nordheimer J.A.: [1] Sutherland Law appeals, with leave, from the order of the Divisional Court that allowed the appeal of Great Northern Insulation Services Ltd. from the trial judge’s decision regarding its claim for priority arising out of a charging order that the appellant law firm had obtained in this construction lien proceeding. As I am in substantial agreement with the analysis undertaken by the Divisional Court, I would dismiss the appeal. BACKGROUND [2] King Road Paving and Landscaping Inc. (“King Road”) was hired in June 2012 by the defendant Agostino Plati and Giuseppe (Pino) Nesci, as a contractor to complete extensive work on the renovation of an old barn located in Schomberg, Ontario. A dispute arose over payment for the work. [3] The dispute captured two suppliers (subcontractors) that supplied goods and services to the project and remained unpaid. They registered construction liens against the property. These lien claims were tried together with King Road’s claim against the owners. The first supplier is Great Northern Insulation Services Ltd. (“Great Northern”), which contracted with King Road to supply spray foam insulation to the barn for $51,415. The second supplier is Webdensco, a building supply centre. Subsequently, Webdensco assigned its interest in its lien to King Road, pursuant to s. 73 of the Construction Lien Act , R.S.O. 1990, c. C.30. [1] King Road then sought payment in the amount of $54,387.99 on behalf of Webdensco. [4] A trial of the issues was eventually heard and determined. [2] The trial judge granted judgment in favour of King Road against the owners. He also granted judgment in favour of Great Northern against King Road in the amount of $105,803. Further, the trial judge declared that both Great Northern and Webdensco were entitled to liens under the Construction Lien Act . [5] Some months after the trial decision was released, the appellant law firm, which had represented King Road in the proceedings, brought a motion on an urgent basis for a charging order under s. 34(1) of the Solicitors Act , R.S.O. 1990, c. S.15. The trial judge granted the charging order. [3] In doing so, the trial judge provided that the charging order would have priority over any amount owed to Great Northern by King Road pursuant to the trial judgment and costs order. [6] Great Northern did not appeal the granting of the charging order, but it did appeal the priority provided by the charging order over the amounts owed to it. By reasons dated June 14, 2019, the Divisional Court allowed the appeal and varied the charging order to provide that Great Northern had priority over the solicitors' charging order in the amount of $54,737.61, plus any interest that accrued on this amount to the time it is paid to Great Northern. That amount represents the funds that remained from what had been paid by the owners to King Road. As will be seen, those funds are trust funds under the Construction Lien Act . THE DECISION BELOW [7] In making the order that it did, the Divisional Court found that interest owing to Great Northern was to be included in the amount that Great Northern could claim against the trust funds created by operation of the Construction Lien Act . In this case, interest amounted to $51,065.39 as found by the trial judge. The other amount of $3,744.37 was the amount that was left unpaid to Great Northern on the base contract price. [8] In reaching this conclusion, the Divisional Court held that the proper interpretation of s. 8 of the Construction Lien Act , included interest due on the contract price. At the core of this appeal is the appellant’s contention that the Divisional Court’s interpretation is in error. ANALYSIS [9] In my view, the issues raised by the appellant boil down to the following: 1. The Divisional Court erred in finding that it had jurisdiction to hear an appeal from the charging order. 2. The Divisional Court erred in finding that interest payable on the contract price was to be included within the trust funds. 3. The Divisional Court erred in finding that Great Northern’s priority over the trust funds was not affected by the assignment of Webdensco’s lien to King Road. I will deal with each of the issues in turn. (1) Jurisdiction [10] I do not agree with the appellant that any appeal from the charging order lay directly to this court, and that the Divisional Court erred in concluding that it had jurisdiction to hear the appeal. The charging order was obtained pursuant to s. 34(1) of the Solicitors Act , which reads: Where a solicitor has been employed to prosecute or defend a proceeding in the Superior Court of Justice, the court may, on motion, declare the solicitor to be entitled to a charge on the property recovered or preserved through the instrumentality of the solicitor for the solicitor’s fees, costs, charges and disbursements in the proceeding. [11] It is implicit in the wording of s. 34(1) that a lawyer who wishes to obtain a charging order must do so by bringing a motion in the proceeding where the “property recovered or preserved through the instrumentality of the solicitor” originated. In this case, that proceeding was the construction lien proceeding. The necessary appeal route from any order obtained in a proceeding is dictated by the statute that governs the proceeding, in this case, the Construction Lien Act . The Construction Lien Act provides, in s. 71, that an appeal from a judgment lies to the Divisional Court. This court does not have original appellate jurisdiction when a statute provides a right of first appeal to the Divisional Court: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 6(1)(b). [12] The Divisional Court was correct in concluding that it had jurisdiction to hear the appeal from the charging order. (2) Trust funds and Interest [13] This is the issue that lies at the heart of this appeal. Indeed, the appellant essentially conceded, during the hearing, that if it did not prevail on this issue, the appeal would likely fail. This issue turns on the proper interpretation of s. 8 and, in particular, s. 8(2) of the Construction Lien Act , which reads: The contractor or subcontractor is the trustee of the trust fund created by subsection (1) and the contractor or subcontractor shall not appropriate or convert any part of the fund to the contractor’s or subcontractor’s own use or to any use inconsistent with the trust until all subcontractors and other persons who supply services or materials to the improvement are paid all amounts related to the improvement owed to them by the contractor or subcontractor. [14] The Construction Lien Act is remedial legislation. Consequently, it should be given a fair, large and liberal interpretation in order to achieve its objectives: Legislation Act, 2006 , S.O. 2006, c. 21, Sched. F, s. 64(1). Principal among those objectives is the protection of those lower down on the “pyramid” of claimants. As Weiler J.A. said in Sunview Doors Ltd. v. Academy Doors & Windows Ltd. , 2010 ONCA 198, 101 O.R. (3d) 285, at para. 99: The object of the Act is to prevent unjust enrichment of those higher up in the construction pyramid by ensuring that money paid for an improvement flows down to those at the bottom. In seeking to protect persons on the lower rungs from financial hardship and unfair treatment by those above, the Act is clearly remedial in nature. The remedial nature of the Act also supports a liberal construction so as to enable it to serve its purpose. [15] In my view, the words “all amounts related to the improvement owed to them by the contractor” found in s. 8(2) ought to be given that large and liberal interpretation. The words “all amounts related to” are, themselves, broad, much like the words “in respect of” have been found to be. In that regard, I refer to the language of Major J. in Markevich v. Canada , 2003 SCC 9, [2003] 1 S.C.R. 94, at para. 26, where he said: “The words ‘in respect of’ have been held by this Court to be words of the broadest scope that convey some link between two subject matters.” [16] In the normal commercial context, interest that accrues on payments due under a contract would be considered amounts owing on the contract. Interest on overdue amounts may be expressly included in the terms of the contract or it may be implied such as, for example, where the interest provision is included in the invoices that are rendered under the contract. This interpretation is consistent with the definition of “price” contained in s. 1(1) of the Construction Lien Act which reads, in part: “price” means the contract or subcontract price, (a) agreed upon between the parties [17] The actual contractual agreements between the parties are not in the record before us. However, the trial judge referred in his reasons, at para. 183, to the fact that Great Northern and King Road had entered into a credit agreement that provided credit terms of 30 days for payment, with interest on outstanding amounts at the rate of 2% per month. Therefore, the interest amount in this case was expressly provided for by the contractual arrangements between the parties. [18] Thus, interest reasonably falls within the scope of s. 8(2) as an amount owing to a subcontractor relating to the improvement. Interest owing is therefore part of the trust fund created by s. 8(1) and falls directly within the restrictions on the permissible use of those trust funds stipulated by s. 8(2). [19] Given the priority established by s. 8(2) that subcontractors enjoy over the trust funds, there was no basis for the trial judge to give the charging order a greater priority over the trust funds. Such a conclusion would be fundamentally inconsistent with the purpose behind the creation of the trust and would violate the above restriction on the use of the trust funds. [20] I would add, on this point, that we are not speaking here about lien rights. We are speaking about trust funds. The two are separate concepts under the Construction Lien Act . Liens give subcontractors and suppliers the right to assert a claim directly against the property, whereas trusts serve to protect the interests of subcontractors and suppliers by protecting funds that are owed to, or have been received by, the contractor. Actually, the Construction Lien Act provides expressly that interest is not part of the lien claim in s. 14(2), which reads: No person is entitled to a lien for any interest on the amount owed to the person in respect of the services or materials that have been supplied by the person, but nothing in this subsection affects any right that the person may otherwise have to recover that interest . [Emphasis added.] [21] No such exclusion is contained in s. 8. While Great Northern would not have been entitled to include the interest amount within its lien claim, there is no principled reason to exclude interest from the trust fund provisions, absent the legislation so providing. Excluding interest would also be inconsistent with the object of the legislation as expressed in Sunview Doors Ltd. above. [22] This conclusion is also consistent with the purpose of the trust provisions as enunciated by Sharpe J.A. in The Guarantee Company of North America v. Royal Bank of Canada , 2019 ONCA 9, 144 O.R. (3d) 225, where he said, at para. 31: [T]he legislature enacted the trust provisions because it recognized that the lien provisions only provided a partial form of security to suppliers. The lien provisions failed to protect suppliers at the bottom of the pyramid in situations where the owner of the land had already paid the contractor. The trust provisions complement the lien provisions by providing security to suppliers at the bottom of the pyramid in these situations. [23] I would also note that this conclusion mirrors the conclusion reached by the New Brunswick Court of Appeal in Fundy Ventilation Limited v. Brunswick Construction Ltd., Fraser Companies Limited and Minister of National Revenue (1982), 40 N.B.R. (2d) 484 (C.A.), 136 D.L.R. (3d) 455, leave to appeal refused, 45 N.R. 528, where, in considering a similar issue, La Forest J.A. said, succinctly, at p. 502: “Interest would equally attach to Fundy's claim under the trust.” [24] Finally, on this point, I agree with the Divisional Court that there is only one trust fund for the subcontractors. This is clear from the wording of s. 8(1) – “constitute a trust fund” (emphasis added). It is also clear from the observations made by Sharpe J.A. in Royal Bank of Canada , at paras. 27-32, as to the purpose of the trust fund provisions. (3) The Webdensco assignment [25] A final issue must be addressed. There is an issue raised as to whether the above analysis is altered by the fact that the other subcontractor, Webdensco, assigned its lien to King Road during the course of the proceeding. The Divisional Court held that if King Road used monies that it had received from the owners to pay Webdensco, which would be trust funds, then Webdensco’s trust claim was extinguished, leaving only Great Northern with rights to the trust funds. Put another way, if King Road used monies impressed with a trust in favour of the subcontractors, then Webdensco’s claim to the trust funds was gone, leaving only Great Northern with the right to claim against the trust funds. King Road did not acquire any right to claim against those trust funds. [26] On this point, at the hearing before the Divisional Court, the panel raised with counsel whether s. 11 of the Construction Lien Act played a role in the proper analysis of the issues raised. Given that the question was raised by the panel, the parties were given leave to file written submissions on the point. [27] As I have already said, the contractor had, at some point, settled the claim of Webdensco and taken an assignment of its lien. This then raised the issue whether that arrangement permitted the contractor to “stand in the shoes” of Webdensco when it came to the distribution of the trust funds. The appellant’s position was that the contractor was afforded all of its rights as a lien claimant – including the right to receive payment of Webdensco's pro-rata share from the trust funds. The appellant coupled this submission with its contention that there are separate trust funds – one for each subcontractor. Like the Divisional Court, I have rejected that latter argument above. [28] The Divisional Court disagreed with the appellant. It found that the result submitted by the appellant would only be the case if the contractor had used non-trust funds to pay Webdensco and receive an assignment of its lien. That conclusion follows from the express language of s. 11(1), which reads: Subject to Part IV, a trustee who pays in whole or in part for the supply of services or materials to an improvement out of money that is not subject to a trust under this Part may retain from trust funds an amount equal to that paid by the trustee without being in breach of the trust. [29] In this court, the appellant changes tack. It now argues that the application of s. 11 was a new issue that ought not to have been permitted on appeal, citing Kaiman v. Graham , 2009 ONCA 77, 245 O.A.C. 130, at para. 18. The appellant also complains that it was not permitted to file evidence about the source of the funds used by King Road to pay Webdensco. [30] I do not accept either of the challenges raised by the appellant. While the application of s. 11 may have arisen first on the appeal, that does not make it a “new [issue]” as contemplated by the decision in Kaiman . [4] The Divisional Court was being asked to answer a specific question that involved the interpretation of the Construction Lien Act . Any section of the statute that might be relevant to the question to be answered had to be considered. If the Divisional Court thought that s. 11 might play some role in their analysis of the question that was before them, then the Divisional Court was obliged to raise the issue with the parties and permit them to make submissions. That is what happened. [31] In terms of the evidentiary issue, the appellant did not, at any point, ask for leave to file evidence as to the source of the funds. It did not do so at the time that the issue was raised by the panel at the hearing in the Divisional Court; and it did not do so in its written submissions responding to the s. 11 issue. Similarly, the appellant did not make any such request in this court, nor did it bring a motion to adduce fresh evidence. The appellant cannot complain about a denial of the right to file evidence that it never made any request for. Further, given that it was the appellant that was suggesting that the contractor might fall within the exception provided for in s. 11, it was the appellant who bore the evidentiary burden. Given that it did not seek to place evidence before the court on the issue, the Divisional Court was entitled to assume that King Road had used trust funds, i.e. funds received from the owners, to pay Webdensco. CONCLUSION [32] The appeal is dismissed. The respondent is entitled to its costs of the appeal in the amount of $14,000 inclusive of disbursements and HST. Released: June 1, 2021 “D.D.” “I.V.B. Nordheimer J.A.” “I agree. Doherty J.A.” “I agree. Harvison Young J.A.” [1] The contracts in this case were entered into around 2012 and all events in issue were completed prior to July 1, 2018, the date on which numerous provisions of the Construction Lien Amendment Act, 2017 , S.O. 2017, c. 24 came into effect. That Act made a number of changes to the Construction Lien Act , including changing the name of the statute to the Construction Act . [2] King Road Paving and Landscaping Inc. v. Plati , 2017 ONSC 557, 64 C.L.R. (4th) 102; King Road Paving and Landscaping Inc. v. Plati , 2017 ONSC 6319, 77 C.L.R. (4th) 165. [3] King Road Paving and Landscaping Inc. v. Plati , 2017 ONSC 7675, 86 C.L.R. (4th) 331. [4] See the recent discussion of this distinction in R. v. G.F. , 2021 SCC 20, at para. 93.

COURT OF APPEAL FOR ONTARIO CITATION: Grist v. TruGrp Inc., 2021 ONCA 309 DATE: 20210511 DOCKET: C68144 Lauwers, Miller and Nordheimer JJ.A. BETWEEN Geoff Grist, Pauline Grist and Brook Restoration Ltd. Plaintiffs (Appellants) and TruGrp Inc., Alexander McMullen and Christian Brannan Defendants (Respondents) Derek J. Bell and Katelyn Ellins, for the appellants Damien Buntsma and Richard K. MacGregor, for the respondents Heard: December 1, 2020 by video conference On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated February 5, 2020, with reasons at 2020 ONSC 347. REASONS FOR DECISION OVERVIEW [1] The respondents Alexander McMullen and Christian Brannan were employees of the appellant Brook Restoration Ltd. (“Brook”), a building restoration company. McMullen and Brannan left Brook to start a competing business, the respondent TruGrp Inc. (“TruGrp”). [2] Litigation followed. In March 2018, Brook sued McMullen and Brannan for various causes of action, including breach of fiduciary duty, misappropriation of confidential information, and interference with economic relations, later amending their claim to include TruGrp as a defendant (the “Brook action”). In March 2019, the respondents sued Brook, Brook’s officers Geoff Grist and Pauline Grist, and Brook’s counsel for defamation, among other causes of action (the “TruGrp action”). The TruGrp action was discontinued. [3] In July 2019, the appellants brought the present action alleging, among other claims, defamation. The respondents responded with a motion under 137.1 of the Courts of Justice Act , R.S.O. 1990, c. C.43, to dismiss it as a Strategic Lawsuit Against Public Participation (“SLAPP”). [4] The motion judge allowed the motion and dismissed the appellants’ action. For the reason given below, we do not agree that the July 2019 action is properly characterized as a SLAPP. Accordingly, for the reasons given below, the appeal is allowed and the order dismissing the action is set aside. BACKGROUND A. The TruGrp Action [5] Under the Brook action, the appellants’ counsel sent preservation letters to TruGrp’s contractors directing them to preserve any relevant evidence. In March 2019, in response to the preservation letters, the respondents sued the appellants and their counsel for defamation, civil conspiracy, and unlawful interference with economic relations. The next month, the respondents discontinued the TruGrp action. B. The OLRB Application [6] In May 2019, The Operative Plasterers’ and Cement Masons’ International Association of the United States and Canada, Local 598 (the “Union”) initiated an Ontario Labour Relations Board (the “OLRB”) application against Brook and TruGrp. The OLRB application was unrelated to the Brook and TruGrp actions. It was centred on whether TruGrp was Brook’s “successor employer” under the Labour Relations Act, 1995 , S.O. 1995, c. 1, Sched. A, and therefore bound to the same collective agreements as Brook. Geoff Grist, Pauline Grist, and the appellants’ counsel in the Brook Action were not parties in the OLRB proceeding. [7] When TruGrp filed its response to the Union’s Application, it attached the statement of claim from the discontinued TruGrp Action. Brook alleged that the response and attached statement of claim contained false and defamatory statements about Brook, Geoff Grist, Pauline Grist, and the appellants’ counsel. TruGrp argued the statement of claim was relevant to establishing that TruGrp was not a successor employer. The statements to which the appellants objected include the following allegations: · the appellants and their counsel sent the preservation letters to intimidate potential customers and others from doing business with the respondents. These letters were also intended to deceive their recipients; · the appellants illegally put pressure on the Union to bring the related employer application before the OLRB; and · the appellants initiated frivolous and vexatious legal proceedings against former employees who set up competing firms, or firms operating in a related stream of the restoration industry, in order to cause irreparable economic and reputational harm to those competing firms. [8] Brook demanded that TruGrp withdraw from its OLRB response the discontinued statement of claim and the allegedly false statements. TruGrp refused. The Union, with Brook’s support, moved to strike the impugned portions of TruGrp’s Response. The OLRB dismissed the motion to strike. CURRENT PROCEEDINGS [9] In July 2019, the appellants commenced this action against the respondents, based on the respondents’ use of the impugned expressions in their OLRB pleadings. The appellants sought damages for defamation, unlawful interference with economic and contractual relations, and abuse of process. [10] In response, the respondents brought a motion under s. 137.1 of the Courts of Justice Act to have the appellants’ action dismissed as a SLAPP. The respondents argued this action was an attempt to limit the respondents’ freedom of expression on matters of public interest. Primarily, the respondents argued the impugned expressions contained in the discontinued statement of claim related to a matter of public interest because they spoke to the appellants’ pattern of using litigation to gain an economic advantage over competitors, affect the union certification process, and interfere with employees’ freedom of association. [11] The motion judge allowed the anti-SLAPP motion and dismissed the appellants’ action on the basis that TruGrp’s response in the OLRB application constituted an expression made in relation to a matter of public interest: there is a public interest in how the operation of restoration work in the province in conducted. It is also in the public interest with regard to the involvement in retaining other businesses to do that type of work. This includes businesses that are subject to collective bargaining or workers represented by unions and activities within the jurisdiction of the OLRB. The parties to the action before me raise allegations of prohibited practices such as price covering. [12] Having found that the respondents met their threshold burden, the motion judge considered whether the appellants could show , pursuant to s. 137.1(4)(a), that the action had substantial merit and that the respondents had no valid defence . Although the motion judge concluded that the appellants’ action had substantial merit, he held that the appellants failed to show the respondents had no valid defence . [13] In concluding that the appellants failed to show the respondents lacked a valid defence , the motion judge held that the impugned expression fell within the doctrine of absolute privilege. He recognized that absolute privilege would not apply if the expression was not made for the purpose of the OLRB proceeding. However, he concluded that the discontinued statement of claim added value to TruGrp’s position before the OLRB. He found that TruGrp referenced the preservation letters and Brook’s allegations against TruGrp in order to support TruGrp’s position that it was not Brook’s successor employer. Consequently, the motion judge found that TruGrp’s response in the OLRB proceeding, which included references to the discontinued statement of claim, fell under the protection of absolute privilege. [14] Finally, the motion judge concluded that the harm Brook suffered from TruGrp including the discontinued statement of claim in the response was not sufficiently serious to warrant permitting the action to proceed. ISSUES ON APPEAL [15] The appellants effectively argue that the motion judge made three errors: 1. the motion judge characterized the respondents’ expression too broadly for the purposes of analysis under s. 137.1(2) and further erred in concluding that the expression was a matter of public interest; 2. the motion judge erred in interpreting the “merits” test; and 3. the motion judge erred in finding the appellants did not tender sufficient evidence of harm to permit the action to proceed. ANALYSIS Is the expression a matter of public interest? (1) Principles [16] To satisfy the threshold requirements under s. 137.1(3), the moving party must show (i) the “proceeding arises from an expression made by the moving party”, and (ii) “the expression relates to a matter of public interest”: 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 21. Here, there is no dispute that the pleadings constitute expression. This appeal turns on whether the respondents’ expression relates to a matter of public interest. [17] The purpose of s. 137.1, as explained in Pointes , is “to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy”: at para. 30. It is not a new form of summary trial on the merits of a defamation action but is instead meant to provide an early and cost-effective means of ending litigation brought by a plaintiff to silence a party who has spoken on a matter of public interest: Sokoloff v. Tru-Path Occupational Therapy Services Ltd. , 2020 ONCA 730, 153 O.R. (3d) 20, at para. 47. Its paradigmatic application is to prevent others from silencing persons who are speaking on matters that have significance beyond themselves. [18] The scope of s. 137.1’s protection is set using the concept of the public interest. This is a concept that many have found difficult to apply. The most detailed exploration of the concept is provided in Grant v. Torstar , 2009 SCC 61, [2009] 3 S.C.R. 640, in the analogous context of the law of defamation. That case emphasizes that the public interest is not a descriptive concept: it is not a matter of ascertaining what the public, or any subgroup, believes to be interesting, entertaining, or worth their attention: at para. 102. Instead, “there is necessarily a normative aspect to what is ‘genuinely’ a matter of public interest”: Sokoloff , at para. 18. That is, the statement must address an issue “about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Grant , at para. 105, citing Raymond E. Brown, The Law of Defamation in Canada , loose-leaf, (2008-Rel. 3) 2nd ed. (Scarborough: Carswell, 1999), vol. 2, at pp. 15-137 and 15-138. Again, the fact of notoriety or controversy is not sufficient in itself — one must assess the reason for the notoriety. [19] The public interest includes such matters as the establishment, use, allocation, and maintenance of shared public goods, and therefore protects discussion and advocacy about the distribution of benefits and burdens of social life. But the public interest is not necessarily limited to matters of shared public life: Grant , at para. 106. There is, after all, a public interest in maintaining peaceful relations between persons in society and in drawing attention to acts of injustice. But the resolution of purely private disputes between more or less equals—disputes that have no immediate bearing on the rights or obligations of others—can seldom be a matter of public interest: Sokoloff , at para. 19. (2) Application [20] The appellants argue that the motion judge erred by characterizing the relevant expression as the response as a whole. Thus, he held that “there is a public interest in how the operation of restoration work in the province is conducted”, as well as in “retaining other businesses”—including businesses “that are subject to collective bargaining” and “workers represented by unions and activities within the jurisdiction of the OLRB”—to perform restoration work. [21] The motion judge erred by failing to analyze the specific statements that were the subject of the appellants’ action. This includes the allegedly defamatory statements in the statement of claim appended to the response, as well as the 11 paragraphs in the response repeating the points made in that attachment. It is only these statements that constitute the relevant expression for the purposes of the s. 137.1 motion. The remaining statements contained in the response and the appended statement of claim were not the subject of the appellants’ action, and the appellants had not attempted to use legal process to prevent or discourage the respondents from making those statements. The whole of the response provides relevant context for understanding the 11 paragraphs itemized in the defamation action and can be considered for that purpose. However, the expression that is the relevant subject matter for the motion is the 11 paragraphs in the response and the portions of the statement of claim from which those paragraphs originate. [22] The subject of those paragraphs, summarized above, is best characterized as an allegation that a building restoration business engaged in conduct that was tortious and contrary to labour law, in order to harm its competitors and gain an unfair advantage. [23] We agree with the appellants that the motion judge erred in finding the expression relates to a matter of public interest. Activity that unfairly reduces competition is a matter of public interest, in the sense that justice requires that such actions be proscribed for the common good. But that does not mean that every occurrence of this type of misconduct is a matter of public interest, having significance to anyone other than the parties involved and the institutions established to resolve their disputes. The nature of the respondents’ expression is fundamentally a private dispute, to which s. 137.1 does not apply. [24] In light of our finding, the respondents’ s. 137.1 motion fails at the s. 137.1(3) threshold stage. Accordingly, it is not necessary that we address the other issues raised by the appellants. [25] There is no reason why the appellants’ action should not proceed to adjudication. In so holding, however, we should not be taken as having expressed any opinion on the merits of that action. DISPOSITION [26] The appeal is allowed, the order below is set aside, and the action is restored. If the parties are unable to agree on the costs of the appeal, they may each file written submissions, not to exceed three pages, and a bill of costs, within 14 days. “P. Lauwers J.A.” “B.W. Miller J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322 DATE: 20210512 DOCKET: M52153 and M52369 (M51847) Nordheimer J.A. (Motions Judge) BETWEEN The Regional Municipality of Halton Plaintiff Moving and Responding Party and F. Greco & Sons Limited o/a Greco Construction, Michael Greco, John Frank Greco, John Paul Greco, Sirron Systems Incorporated, Sirron Systems Inc., Sirron Group International, Sirron Electrical Contracting Corporation, David Allan Norris, Meehan’s Industrial Maintenance Ltd., Patrick Vincent Meehan, Jason Matthew Mote, Giulio (Julio) Cerelli, Canian Precision Machine Shop Limited, Wahan Aghaian, Eli Ishkanian and Lisa Snowball Defendants Moving and Responding Party Talia Gordner, for the moving and responding party, Regional Municipality of Halton Paul H. Starkman, for the moving and responding party, Lisa Snowball Heard: May 12, 2021 by video conference ENDORSEMENT [1] I have two motions before me. One motion is brought by the Regional Municipality of Halton to strike out the motion for leave to appeal brought by the responding party, Lisa Snowball. The other motion is brought by Lisa Snowball for leave to file fresh evidence on the motion for leave to appeal. Ms. Snowball’s motion for leave to appeal seeks to appeal the denial of leave to appeal by the Divisional Court from an order of a Superior Court judge. [2] Prior to hearing the merits of the motions, I raised with counsel whether a single judge of this court has jurisdiction to determine either of them. I have concluded that I do not. [3] Only a panel can determine the issue of jurisdiction with respect to an appeal: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 134(3), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 61.16(2.2). Also, only a panel can determine a motion for leave to appeal: Courts of Justice Act , ss. 7(1), 7(3). [4] In my view, it follows from these provisions that since a panel must determine the motion for leave to appeal, it is a panel that must determine any jurisdictional issue relating to the motion for leave since, if successful, it would finally determine whether there is an appeal or not. Therefore, it must be a panel of this court that hears and determines the Region’s motion to strike the motion for leave to appeal. [5] I reach the same conclusion respecting Ms. Snowball’s motion to adduce fresh evidence. Rule 61.16(2) provides that a motion to receive fresh evidence must be made to the panel hearing the appeal. Following the same analysis above relating to the jurisdiction issue, it is my view that, if a panel hearing an appeal must determine the admissibility of fresh evidence on the appeal, a panel hearing a motion for leave to appeal must determine the admissibility of fresh evidence on that motion. [6] As a result, I order that these two motions be transferred to be heard and determined by a panel of this court. If the panel determines the jurisdictional issue in favour of the Region, then the motion for fresh evidence becomes moot. If the jurisdictional issue is determined in favour of Ms. Snowball, then the panel can direct how the motion for fresh evidence ought to be dealt with. [7] I reserve the costs of today to the panel hearing the motions. “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hannivan v. Wasi, 2021 ONCA 187 DATE: 20210325 DOCKET: C68206 Feldman, Paciocco and Coroza JJ.A. BETWEEN Paul J. Hannivan and Pamela J. Hannivan Plaintiffs/Moving Parties (Respondents) and Muhammad Wasi and RE/MAX Aboutowne Realty Corp. Defendants/Responding Parties ( Appellant ) AND BETWEEN Muhammad Wasi Plaintiff by Counterclaim/Responding Party (Appellant) and Paul J. Hannivan and Pamela J. Hannivan Defendants by Counterclaim/Moving Parties (Respondents) Dheeraj Bhatia, for the appellant Mark A. De Sanctis, for the respondents Heard: March 8, 2021 by video conference On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, dated February 20, 2020, with reasons reported at 2020 ONSC 1060. REASONS FOR DECISION BACKGROUND [1] On March 20, 2017, the appellant purchaser and the respondent vendors executed an agreement of purchase and sale (“APS”) for a residential property located in Oakville, Ontario. The purchase price was $1,155,000. The purchaser paid a $50,000 deposit. Both parties were represented by real estate agents throughout the process. [2] The APS had a closing date of August 18, 2017. All requisitions affecting title to the property were to be submitted by August 1, 2017 at 6:00 p.m. The purchaser did not submit any requisitions before the deadline expired. [3] After regular business hours on August 17, 2017, the day before the closing, counsel for the purchaser sent correspondence to the vendors’ real estate lawyer. The lengthy correspondence set out various concerns with the transaction. Of note to this appeal is the purchaser’s allegation that the vendors failed to comply with a term of the APS concerning a property survey. That term, found in Schedule A to the APS, is as follows: The Seller agrees to provide, at the Seller’s own expense, not later than two weeks, an existing survey of said property showing the current location of all structures, buildings, fences, improvements, easements, rights-of-way, and encroachments affecting said property. The Seller will further deliver, on completion, a declaration confirming that there have been no additions to the structures, building, fences, and improvements on the property since the date of this survey. [4] In the correspondence, counsel for the purchaser claimed that the APS was “null and void” due to the vendors’ failure to comply with the survey term. They demanded that the purchaser’s deposit be returned to him in full. On August 18, 2017, the vendors’ solicitor replied, stating that the purchaser had breached the APS and thereby forfeited his deposit. [5] The transaction never closed. The vendors relisted the property for sale, ultimately selling it to another buyer for less than the original purchase price in the APS. The vendors sued the purchaser for the difference in the purchase price, plus other damages. The purchaser counterclaimed for, primarily, the return of his deposit. [6] The vendors moved for summary judgment on their claim and the counterclaim. On February 20, 2020, a motion judge granted the motion in favour of the vendors on both the primary claim and counterclaim. [7] The motion judge held that the purchaser repudiated the transaction and was not justified in doing so. The motion judge observed that the vendors provided to the purchaser’s real estate agent a document purporting to be a survey, nearly five months before the correspondence on behalf of the purchaser was sent declaring the APS null and void. He noted that the purported survey was signed by an Ontario land surveyor and dated. The motion judge recognized that this survey was “bare-bones” and did not show the current location of the items listed in the survey term of the APS. In his view, however, the purchaser was not entitled to repudiate the deal on this basis because a more detailed, original survey was “in no way essential to the transaction”. [8] The purchaser asks this court to set aside the motion judge’s decision. He raises several grounds of appeal. ANALYSIS [9] First, the purchaser argues that the motion judge did not consider the vendors’ failure on the motion to plead or argue compliance with the survey term of the APS. We disagree. A fair reading of the vendors’ reply and defence to counterclaim, as well as their factum in the court below, does not disclose any deficiency in the vendors’ pleadings. [10] Second, the purchaser asserts that the motion judge failed to consider the vendors’ admission, namely that they were aware that the purchaser intended to renovate the property, as evidence that a survey complying with Schedule A of the APS was essential to the transaction. [11] We do not accept this assertion. In our view, the motion judge’s failure to mention the admission in his reasons does not mean he failed to consider it. The motion judge was clearly alive to the purchaser’s submission that it was his intention to renovate the property. Indeed, he noted the purchaser’s submission that summary judgment was not appropriate in this case because he needed an opportunity at trial to adduce further evidence on his intention to do major renovations to the property. That submission was quite properly rejected by the motion judge. Whether the vendors knew that the purchaser was going to renovate the property had nothing to do, generally, with the purchaser’s ability to close the transaction or his alleged entitlement to repudiate the APS. [12] Third, the purchaser submits that the motion judge’s reasons were inadequate and failed to deal with the survey term. This submission has no merit. The motion judge focused on the survey term and provided concise reasons as to why the purchaser was not entitled to repudiate the APS. [13] Fourth, the purchaser contends that the motion judge failed to consider various authorities put forward by the purchaser, including Domowicz v. Orsa Investments Ltd. (1993), 36 R.P.R. (2d) 174 (Ont. Gen. Div.). In Domowicz , a vendor was late in its delivery of a survey, precluding the purchaser from arranging financing for the transaction. The court held that the purchaser should have been accommodated by a reasonable extension of the closing date, and resolved the issue of liability in the purchaser’s favour: at pp. 1, 4, 21-22, and 25. [14] In this case, the motion judge noted that the purchaser was relying heavily on Domowicz . However, the motion judge concluded that taking the purchaser’s position as high as it could be, even if the vendors did not strictly comply with the survey term contained in Schedule A of the APS, this would not have entitled the purchaser to refuse to close the transaction. This conclusion flowed from the fact that the survey had nothing to do with financing, zoning, or the purchaser’s ability to close the transaction. We see no basis to interfere with these findings. [15] Finally, the purchaser argues that the motion judge misconstrued evidence, including expert evidence, and failed to properly consider submissions by the purchaser. [16] We see no merit to this argument. The motion judge carefully reviewed the evidence and focused on whether the vendor’s alleged non-compliance with the survey term entitled the purchaser to repudiate the APS because it was essential to the bargain. He concluded that it was not. In reaching that conclusion, he considered the parties’ submissions and observed how counsel for the purchaser narrowed the analysis considerably when he stated that the purchaser’s entire case rested on the survey term. DISPOSITION [17] For these reasons, the appeal is dismissed. The vendors are entitled to their costs of the appeal in the agreed upon amount of $7,500, inclusive of disbursements and HST . “K. Feldman J.A.” “David M. Paciocco J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hayward v. Hayward, 2021 ONCA 175 DATE: 20210322 DOCKET: C67890 Lauwers, Trotter and Zarnett JJ.A. BETWEEN Leslie Ann Hayward, as Estate Trustee and The Estate of Jeanne Hayward also known as Jean Hayward Applicants (Respondents) and Alexander William Keith Hayward , Shawn Hayward , David Hayward , Kelly Hayward and Lori Hayward Respondents ( Appellants ) Robert J. De Toni, for the appellants Robert A. Lewis, for the respondents Heard: March 16, 2021 by video conference On appeal from the judgment of Justice Stanley J. Kershman of the Superior Court of Justice, dated December 12, 2019, with reasons reported at 2019 ONSC 7083, and from the costs order, dated March 6, 2020, with reasons reported at 2020 ONSC 1458. REASONS FOR DECISION [1] This appeal concerns the estate of Jeanne Hayward. She is survived by her former husband, Alexander [Alex] Hayward, and their five adult children, Leslie, Shawn, David, Kelly, and Lori. (In these reasons we use first names to distinguish among them, not out of disrespect.) All five siblings were named as beneficiaries in Jeanne’s will, but Alex was not. Leslie is the estate trustee. Shawn, David, and Lori, but not Kelly, supported their father’s claims to various estate assets and estate funds. [2] Alex appeals the disposition of his claims to re payment of a loan he made to Jeanne with which she bought a Chevrolet Malibu and to ownership of a Montana tractor, and seeks leave to appeal the costs award. Shawn, David and Lori join him only in the appeal of the costs award. The Chevrolet Malibu [3] Alex had claimed that although the Malibu was in Jeanne’s name, he had provided, as a loan, the cash with which it was purchased. The estate argued that Alex did not pay for the Malibu. The trial judge found that Alex had paid for Jeanne’s Malibu, but when he did so he was making a gift, not a loan. However, the estate had not argued that the money paid by Alex for the Malibu was a gift. [4] We agree with the appellant that it was not open to the trial judge to find that the funds Alex paid for the Malibu were a gift and not a loan. As Doherty J.A. noted in Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, at paras. 61-63, a trial judge’s reliance on a ground that was not argued is fundamentally unfair and potentially unreliable because it was not tested through the adversarial process. The law prescribes tests for determining when the payment of funds is a gift, but the trial judge did not apply or allow the parties to address those tests before determining that Alex’s payment for the Malibu was a gift, not a loan. The appeal on this ground is allowed, and we remit the issue to the Superior Court for trial. The Montana Tractor [5] Alex purchased the Montana tractor and the bill of sale was in his name. He paid the $1,000 down payment in cash. The balance of $12,560 was paid with a cheque in Leslie’s name. Leslie argued that the cheque came from her, and, since Alex never paid her back, the tractor was hers. Alex argued that the money actually came from Jeanne, and, because the tractor was in his name, he owned it. He said Jeanne probably borrowed the money from Leslie, but he was not sure. [6] The trial judge found that Alex had paid the initial deposit and owned the tractor. However, he found that Leslie had paid the balance of $12,560, which was most of the purchase price. Because there was no evidence Alex ever repaid her, the trial judge found that Alex owed Leslie $12,560. [7] The appellant argues that the trial judge erred in failing to find that repayment of the loan was time-barred under the Limitations Act, 2002 , S.O. 2002, c. 24. This proceeding was started as an application and did not have full pleadings, but it was open to counsel to raise the application of the Limitations Act as a defence to Leslie’s claim. The trial judge cannot be criticized for failing to respond to a defence that was not raised by counsel. This ground of appeal is dismissed. The Costs Award [8] The major issue in this appeal is the trial judge’s award of substantial indemnity costs against the appellants. [9] The appellants make three arguments. They argue, first, that the trial judge’s discretionary award of substantial indemnity costs against Alex, Shawn, David and Lori was wrong in principle. We agree with the trial judge that the behaviour of the appellants warranted substantial indemnity costs in light of Alex’s misconduct. That misconduct was worthy of sanction under the principles in Davies v. Clarington (Municipality) , 2009 ONCA 722, 100 O.R. (3d) 66, at paras. 28-31 and 40. This misconduct was supported by the sibling appellants. [10] The trial judge noted that Alex disputed the authenticity of a document, signed by Jeanne and Alex as a supplement to their separation agreement, disposing of some assets. Its authenticity was a significant issue at trial and consumed time and resources. Each appellant contributed to the allegation that the agreement was not authentic. The trial judge noted, in his costs award: [Alex] was fully supported in this position by Shawn, David and Lori Hayward. In addition to giving evidence in support of it being not authentic they also provided their own evidence claiming that it was fraudulent. At one point in the trial, Shawn Hayward testified that Leslie Hayward could have tampered with her mother's computer. Leslie Hayward claimed that she could not have manipulated some of the emails. [11] Alex and the siblings supporting him brought a motion on short notice to introduce an expert report regarding the authenticity of this document. This forced the estate to hire an expert to prove that the agreement was authentic. The trial judge relied on the estate’s expert evidence and Kelly’s testimony to find that the agreement was authentic. The implication is that Alex had advanced an argument that he knew to be false, which is surely good evidence of egregious misconduct. [12] The trial judge also found that Alex was “tenacious and intransigent”; that he signed the agreement, even though he claimed otherwise; and that he denied that Leslie paid for the Montana tractor, even though the cheque proved she did. [13] The appellants’ second costs argument is that the siblings should have been considered by the trial judge to be “non-parties” without any responsibility for costs. We reject this argument. [14] There is no error in the trial judge’s disposition of this issue. He found: The Court finds that Shawn, David and Lori Hayward were in this together with Alex Hayward.… The Court rejects [their] argument that the costs should be only as against Alex Hayward. The Court finds that Shawn, David and Lori Hayward actively participated with their father in these proceedings and costs consequences should apply to all of them. On this basis, the Court finds that the interests of Alex Hayward are not separate from Shawn, David and Lori Hayward. [15] The appellants’ third costs argument is that the trial judge erred in finding that Leslie, as trustee, was entitled to recover her full indemnity costs out of the estate, including those costs related to disputes over items solely between her and Alex. Counsel for the estate agrees. The parties concurred in suggesting that the range of costs attributable to Leslie’s personal disputes warrant a reduction of between $5,000 and $10,000 from the total award to her. We fix the amount of the deduction at $7,500. [16] Accordingly, we vary the trial judge’s costs award by reducing the remainder of costs he ordered to be paid by the estate to the estate trustee of $16,030.23 by $7,500. We leave the disposition of costs on the Malibu loan/gift issue remitted to trial including the original trial to the trial judge hearing the re-trial; we recognize that doing so benefits Leslie and the estate somewhat since the trial judge’s costs disposition includes an amount on account of this issue but it appears most efficient to proceed in this manner. The costs appeal is otherwise dismissed and the respective obligations to pay forthwith come into force. [17] The costs of this appeal are payable forthwith by the appellants to the respondents in the reduced amount of $15,000 inclusive of costs and disbursements, to reflect the appellants’ partial success. “P. Lauwers J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 39 DATE: 20210119 DOCKET: M51698 (C68123), M51699 (C68122) & M51700 (C68121) Lauwers, Hourigan and Brown JJ.A. BETWEEN DOCKET: M51700 (C68121) Heliotrope Investment Corporation Plaintiff (Respondent) (Moving Party) and 1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary Beach and 1073650 Ontario Inc. Defendants (Appellants) (Responding Parties) and 1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary Beach and 1073650 Ontario Inc. Plaintiffs by Counterclaim (Appellants) (Responding Parties) and Canadian Western Trust Company (In Trust for RRSP Plan Number #10084752 and Plan #10084190), Heliotrope Investment Corporation, Magenta Capital Corporation and Magenta Mortgage Investment Corporation Defendants by Counterclaim (Respondents) (Moving Parties) AND BETWEEN DOCKET: M51699 (C68122) Canadian Western Trust Company (In Trust for RRSP Plan Number #10084752 and Plan #10084190) Plaintiff (Respondent) (Moving Party) and 1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary Beach and 1073650 Ontario Inc. Defendants (Appellants) (Responding Parties) and 1324789 Ontario Inc., Martha Lorraine Beach, Johnathan Gary Beach and 1073650 Ontario Inc. Plaintiffs by Counterclaim (Appellants) (Responding Parties) and Canadian Western Trust Company (In Trust for RRSP Plan #10084752 and Plan #10084190), Heliotrope Investment Corporation, Magenta Capital Corporation and Magenta Mortgage Investment Corporation Defendants by Counterclaim (Respondents) (Moving Parties) AND BETWEEN DOCKET: M51698 (C68123) Canadian Western Trust Company (Incorporation No. A46845), In Trust for RRSP Plan Number #10084752 and Plan #10084190 Plaintiff/Defendant by Counterclaim (Respondent) (Moving Party) and 1324789 Ontario Inc., 1073650 Ontario Inc., Johnathan Gary Beach and Martha Lorraine Beach Defendants/Plaintiffs by Counterclaim (Appellants) (Responding Parties) Eric Lay, for the moving parties No one appearing for the responding parties Heard: January 18, 2021 by video conference REASONS FOR DECISION [1] On consent, the motion is dismissed with costs reserved to the panel hearing the appeal. “P. Lauwers J.A.” “C.W. Hourigan J.A.” “David Brown J.A.” .

COURT OF APPEAL FOR ONTARIO CITATION: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364 DATE: 20210528 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 BROWN J.A.: I.        OVERVIEW [1] The appellants, Celine and Richard Pizale, owned a partially-renovated residential property on Lyndhurst Avenue in Toronto (the “Property”). In June 2020 the first mortgagee, Hillmount Capital Inc. (“Hillmount”), applied for an order appointing the respondent, Zeifman Partners Inc., as receiver of the Property (the “Receiver”). Koehnen J. granted such an order on June 19, 2020 (the “Appointment Order”). [2] The Receiver marketed the Property on an “as is” basis and entered into an agreement of purchase and sale with Patricia and David Armstrong (the “Purchasers”). By orders dated January 8, 2021, Conway J. granted a sale approval and vesting order (the “Approval Order”), together with an administration order approving the Receiver’s activities, as well as increasing its borrowing authority to $250,000.00 (the “Administration Order”). [3] On January 15, 2021, the Pizales filed a notice of appeal of the Motion Judge’s January 8 orders. Two motions then ensued before the Chambers Judge. [4] First, the Receiver moved for orders (i) declaring that the Pizales do not have an automatic right of appeal under ss. 193(a)-(d) of the Bankruptcy and Insolvency Act , R.S.C., 1985, c. B-3 (the “ BIA ”), and (ii) denying them leave to appeal the Approval and Administration Orders under BIA s. 193(e). [5] The Pizales then brought a motion for (i) a declaration that they have a right to appeal to this court from the Approval and Administration Orders under s. 193(c), which states that an appeal lies to the Court of Appeal “if the property involved in the appeal exceeds in value ten thousand dollars,” or (ii) alternatively, leave to appeal the orders pursuant to s. 193(e) and a stay of the Approval and Administration Orders pending their appeal. [6] By order dated February 4, 2021 the Chambers Judge declared that the Pizales did not have an automatic right of appeal and denied them leave to appeal (the “Chambers Order”). He ordered that the sale of the Property should proceed. [7] The Pizales thereupon brought an urgent panel review motion pursuant to s. 7(5) of the Courts of Justice Act , R.S.O. 1990, c. C.43 (“ CJA ”), to set aside the Chambers Order and, if necessary, stay the Approval and Administration Orders. [8] The panel heard the motion on February 8, 2021, the day scheduled for the closing of the sale of the Property. At the conclusion of the hearing the panel dismissed the Pizales’ motion, with reasons to follow. These are those reasons. II.       BACKGROUND The Property and the receivership [9] The Pizales were in the process of renovating the Property when Hillmount, the first mortgagee, applied for the appointment of a receiver. At the time, there were four mortgages registered against the Property: (i) the first mortgage to Hillmount for approximately $3.35 million, later assigned to Elle Mortgage Corporation (“Elle”); (ii) an $800,000 second mortgage to 1713691 Ontario Inc. and Boris Nodel; (iii) a third mortgage for $569,359 to Harold Wine, Gad Caro, and Marshall Morris; and (iv) a $325,000 fourth mortgage to Weihao Zhang. The Pizales had been in default under the first mortgage for a number of months prior to the Receiver’s appointment. [10] The Appointment Order authorized the Receiver to take possession of the Property, preserve, market, and sell it. The Receiver was authorized to borrow up to $150,000 from Hillmount. Given the significant costs required to complete the renovation of the Property, the limited borrowing authority given to the Receiver clearly indicated that its mandate under the Appointment Order was to sell the Property on an “as is” basis. [11] As described by the Motion Judge in her endorsement, the Receiver initially listed the Property for sale at $4.8 million, which was higher than the appraisals it had obtained for a sale on an “as is” basis. Notwithstanding numerous showings of the Property, that listing price did not attract any offers. In mid-September 2020, the Receiver reduced the listing price to $4.15 million. Several offers were received, which the Receiver pursued. The Receiver entered into a Sale Agreement with the Purchasers for a purchase price that was higher than its two “as is” appraisals and any other offers received by the Receiver. The decision of the Motion Judge [12] The Receiver moved for court approval of the Sale Agreement. In its Second Report, the Receiver stated that if the Sale Agreement was not approved, it did not believe it would be able to sell the Property for an equal or higher price. [13] The Pizales opposed the Receiver’s motion. They wanted to regain possession of the Property, complete the renovations, and sell it for an “as complete” or “as renovated” price. The second mortgagees also opposed the sale. Elle, the assignee of the first mortgage, and the third and fourth mortgagees opposed any sale of the Property but supported a discharge of the Receiver. Notwithstanding those positions, no motion to discharge the Receiver was brought before the Motion Judge. [14] The Motion Judge approved the Sale Agreement, concluding that the evidence showed the proposed sale satisfied the principles set out in Royal Bank v. Soundair Corp. (1991), 4 O.R. (3d) 1(C.A.). She rejected the submissions made in opposition to the sale stating, at para. 26 of her endorsement: It was only after the Sale Agreement was entered into that the mortgagees (after making certain arrangements with the Respondents) joined forces to mount a coordinated opposition to the [Approval and Vesting Order]. Their reasons for doing so are not apparent on the face of the record and consist only of a stated opposition. The mortgagees and Respondents failed to engage in the court-authorized receivership and sales process at any time prior to the signing of the Sale Agreement. The Receiver, after conducting a legitimate and proper sales process, entered into an agreement with the Purchasers, which the mortgagees and Respondents are now seeking to have this court reject. They are seeking to prevent the sale altogether. I have considered and weighed the interests of all parties and find that there is no basis for this court to allow the objections of the mortgagees and Respondents to prevent the Receiver from concluding its agreement with the Purchasers. [15] The Motion Judge also granted the Administration Order, which was unopposed save for the Receiver’s fees and disbursements, for which the Receiver intended to seek approval at a later date. The decision of the Chambers Judge [16] The Pizales submitted to the Chambers Judge that their appeal fell within BIA s. 193(c). The Chambers Judge noted that the Pizales accepted the jurisprudence summarized in the chambers decision in 2403177 Ontario Inc. v. Bending Lake Iron Group Limited , 2016 ONCA 225, 347 O.A.C. 226 (“ Bending Lake ”), [1] that BIA s. 193(c) does not apply to orders that: are procedural in nature; do not bring into play the value of the debtor’s property; or do not result in a loss. The Chambers Judge concluded that the Pizales’ appeal did not fall within BIA s. 193(c) for three reasons: (i) the Pizales’ critiques of the Approval Order all related to the manner in which the Property was sold and therefore concerned matters of procedure that did not give rise to an automatic right of appeal; (ii) the Pizales’ appeal did not bring into play the value of the Property; and (iii) the Approval Order would not result in a loss. The Chambers Judge rejected the Pizales’ argument that an automatic right of appeal lay in respect of the Administration Order for the same reasons he rejected the argument for the Approval Order. [17] The Chambers Judge then concluded that the Pizales should not be granted leave to appeal under BIA s. 193(e). He did not regard their appeal as raising an issue of general importance to the practice in bankruptcy/insolvency matters or the administration of justice as a whole. Instead, it was “an attempt to relitigate a dispute between the Pizales and the receiver that will have little importance to bankruptcy/insolvency matters beyond the parties.” Nor did the Chambers Judge view the Pizales’ appeal as prima facie meritorious. He found the Motion Judge’s Soundair analysis to be “complete and the grounds do not raise a serious issue to be appealed.” Finally, the Chambers Judge held that granting leave would risk losing the sale to the Purchasers, thereby placing into question the whole integrity of the sales process. III.      THE STANDARD OF REVIEW [18] On a panel review of the order of a single judge pursuant to CJA s. 7(5), the panel may interfere with the order if the chambers judge failed to identify the applicable principles, erred in principle or reached an unreasonable result: DeMarco v. Nicoletti , 2017 ONCA 417, at para. 3; Yaiguaje v. Chevron Corporation , 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21; Struik v. Dixie Lee Food Systems Ltd. , 2018 ONCA 22, at paras. 5-6. IV.     THE ISSUES RAISED BY THE REVIEW MOTION [19] On this motion to review, the Pizales advance three main arguments to set aside the Chambers Decision. [20] First, they contend the Chambers Judge erred by applying the legal principles concerning BIA s. 193(c) in a too restrictive or narrow way. [21] Second, the Pizales submit that the Chambers Judge misconstrued their arguments about why they had an automatic right of appeal under BIA s. 193(c). They were not alleging improvident sale or an improper sale process. Instead, they were alleging that the receivership was “spent” so there was no need to liquidate the Property. In their submission, the purpose of the receivership was achieved when Hillmount, the applicant creditor, was made whole and assigned its first mortgage to Elle. According to the Pizales, given that assignment the Motion Judge should have given more weight to the objections to the sale by the Pizales and remaining creditors. Instead, the Approval Order wrongfully preferred preserving the integrity of the sales process over the substantive interests of the Pizales and their creditor mortgagees. [22] More specifically, the Pizales submit that the Chambers Judge erred in concluding that: (i) the Approval and Administration Orders were procedural in nature when the Pizales were arguing that the orders prejudiced their substantive rights; (ii) the Approval Order did not put the value of the Property in question. The Pizales submit that the appraisals they filed put that value in question; (iii) the Pizales did not retain an interest in the Property and therefore its value was not in question. The Pizales argue that while the receivership changed the nature of their interest in the Property, it did not extinguish it; and (iv) the Approval Order did not result in a loss of at least $10,000. According to the Pizales, the Chambers Judge ignored the increase in their exposure to their creditors resulting from the sale of the Property on an “as is” rather than “as complete” basis. [23] Finally, the Pizales submit the Chambers Judge erred in failing to grant leave to appeal as he misconstrued the bases of the Pizales’ opposition to the Approval Order and their grounds of appeal. V.      FIRST ISSUE: DID THE CHAMBERS JUDGE APPLY THE CASE LAW CONCERNING BIA s. 193(c) TOO NARROWLY? [24] Section 193(c) of the BIA states that “an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases: … (c) if the property involved in the appeal exceeds in value ten thousand dollars.” [25] Before the Chambers Judge, the Pizales acknowledged that BIA s. 193(c) does not apply to certain types of orders, specifically those identified in Bending Lake . That decision observed, at para. 53, that the case law holds that BIA s. 193(c) does not apply to orders (i) that are procedural in nature, [2] (ii) that do not bring into play the value of the debtor’s property [3] or (iii) do not result in a loss. [4] The last principle derives from two Supreme Court of Canada cases, Orpen v. Roberts , [1925] S.C.R. 364, at p. 367, and Fallis and Deacon v. United Fuel Investments Ltd. , [1962] S.C.R. 771. [26] Notwithstanding this acknowledgement, the Pizales contend that the Chambers Judge failed to apply those principles in what they style as the less restrictive approach set out in the decision of the Saskatchewan Court of Appeal in MNP Ltd. v. Wilkes , 2020 SKCA 66, 449 D.L.R. (4th) 439 (“ Wilkes ”). [27] To deal with that submission, I shall address two issues: (i) the significance, if any, of the “narrow” and “broad” interpretation labels regarding s. 193(c) found in some of the case law; and (ii) the practical difference, if any, of the approach in Wilkes in contrast to that found in the cases summarized in Bending Lake . The “narrow” and “broad” interpretation dichotomy [28] Although the Pizales rely on some appellate decisions from other provinces to advocate for a broad interpretation of the automatic rights of appeal in BIA ss. 193(a)-(d), they ignore panel decisions of this court that have expressly taken a narrow approach to the interpretation of those appeal rights due to the broad automatic stay on appeal contained in BIA s. 195. [5] [29] For example, several weeks after the Bending Lake decision, a panel of this court released reasons in Enroute Imports Inc. (Re) , 2016 ONCA 247, 35 C.B.R. (6th) 1. At issue on that appeal was an order concerning the ability to examine a representative of the bankrupt. The panel stated, at para. 5: The case law considering s. 193(c) from this court makes clear that, given the broad nature of the stay imposed by s. 195 of the BIA , the right of appeal without leave under s. 193(c) must be narrowly construed. In addition, the appeal must directly involve property exceeding $10,000 in value : Crate Marine Sales Limited (Re) , 2016 ONCA 140, Robson Estate v. Robson (2002) , 33 C.B.R. (4th) 86 (Ont. C.A.), Business Development Bank of Canada v. Pine Tree Resorts Inc. , 2013 ONCA 282, 115 O.R. (3d) 617, and Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd. , 2014 ONCA 500, 17 C.B.R. (6th) 91. (emphasis added) [30] The panel found that the order at issue did not fall within s. 193(c) for two reasons: the entitlement to conduct an examination was procedural in nature and did not directly involve property, and the appellants’ argument that the motion judge erred in finding that the proposal was reasonable and made in good faith did not put the property directly in issue. The panel also denied leave to appeal. [31] The next year, a panel in Romspen Investment Corporation v. Courtice Auto Wreckers Limited , 2017 ONCA 301, 47 C.B.R. (6th) 1, leave to appeal refused, [2017] S.C.C.A. No. 238, followed Enroute Imports in holding that the right of appeal under s. 193(c) must be narrowly construed and limited to cases where the appeal directly involves property exceeding $10,000 in value: at para. 22. [32] These statements by two panels of this court strike a different analytical stance than the comments by the chambers judge in Wong v. Luu , 2013 BCCA 547, 348 B.C.A.C. 155, at para. 23, that the right of appeal under BIA s. 193 is “broad, generous and wide-reaching.” I would further note that the decisions in Wong and Wilkes did not address the effect of the automatic stay in s. 195 on the interpretation of ss. 193(a)-(d), a factor this court has considered significant for its interpretative approach. [33] That said, the recent panel decision of this court in Davidson (Re) , 2021 ONCA 135, 86 C.B.R. (6th) 1, determined that it was not necessary in that case to engage in a debate over whether BIA s. 193(c) should be given a narrow or broad interpretation: at paras. 9-10. In that case, the panel assumed that s. 193(c) applied but dismissed the appeal on the merits. The state of the case law [34] When one looks past the labels of “narrow” and “broad”, one discovers that a consensus appears to exist in the case law about how to answer s. 193(c)’s question of whether the property involved in the appeal exceeds $10,000. As I will explain, the Pizales’ submission greatly overstates the differences between the operative principles described in Wilkes and the case law summarized and categorized in Bending Lake . [35] Wilkes held that a court’s primary task when examining whether an automatic right of appeal exists is to answer the question raised by s. 193(c) “and determine whether the property involved in the appeal exceeds $10,000.” Writing for the court, Jackson J.A. continued, at para. 61: Courts have used different ways of giving meaning to s. 193(c), but it is still the words of the statute that govern. Thus, in Fallis , by its adoption of what the Court had said in Orpen , the test is stated as, What is the loss which the granting or refusing of the right claimed will entail? In Fogel , the Court asked what is “the value in jeopardy” (at para 6). In McNeil , the Chambers judge observed that “[t]he ‘property involved in the appeal’ … may be determined by comparing the order appealed against the remedy sought in the notice of appeal” (at para 13). In Trimor , the Chambers judge added to the Orpen–Fallis test by stating “[t]he focus of the inquiry under s. 193(c) is the amount of money at stake …” (at para 10). All of these expressions are consistent with the statutory language present in s. 193(c). [36] As mentioned above at para. 25, Bending Lake summarized the case law as identifying three types of orders that do not fall within the ambit of BIA s. 193(c). The first type the case law identifies is an order that does not result in a loss, as described in the Orpen and Fallis cases, which were the focus of the court’s analysis in Wilkes . The need for an order to result in a loss to fall within s. 193(c) was framed slightly differently by the Alberta Court of Appeal in Re Bearcat Exploration Ltd. (Bankrupt) , 2003 ABCA 365, 339 A.R. 376, where the court stated, at para. 10, that an appeal under BIA s. 193(c) “must in substance be about the value of the property, not just any claim related to bankruptcy.” Or, as put by panels of this court in Enroute Imports and Courtice Auto Wreckers , the appeal must “directly involve” property exceeding $10,000 in value. [37] Bending Lake also pointed out that the jurisprudence treated two other types of orders as falling outside of s. 193(c): those that do not bring into play the value of the debtor’s property; and those that are procedural in nature. Excluding those types of orders from the ambit of s. 193(c) is consistent with – and indeed flows logically from – the loss principle articulated in the Orpen/Fallis cases. [38] By its nature the second type of order - one that does not bring into play the value of the debtor’s property - would not result in a loss or put property value in jeopardy. For example, it is well-established in the BIA s. 193(c) jurisprudence that an order appointing a receiver or interim receiver usually does not bring into play the value of the debtor’s property as it simply appoints an officer of the court to preserve and monetize those assets subject to court approval. [6] [39] The third type of order that the case law places outside of s. 193(c) is a procedural order, which really is a sub-set of orders that do not bring into play the value of the debtor’s property. The case law identifies various procedural orders of this kind: the dismissal of the bankrupt’s motion to strike out the petition against him; [7] the conduct of an examination of the bankrupt; [8] an order declining leave to examine the bankrupt; [9] approval of the trustee’s proposed auction process; [10] directions regarding the conduct of a trial; [11] an appeal process order; [12] an order denying a union leave to apply for certification during receivership; [13] and an order granting an adjournment. [14] In some circumstances, a sale approval order, on analysis, may be merely procedural in nature. [15] [40] Wilkes acknowledges that “it is solidly established in the jurisprudence that there is no right of appeal under s. 193(c) from a question involving procedure alone ”: at para. 61 (emphasis in original). Indeed, a few months after the release of Wilkes , Jackson J.A., sitting as a chambers judge, concluded in Re Harmon International Industries Inc. , 2020 SKCA 95, 81 C.B.R. (6th) 1, that leave was required to appeal a receiver’s sale process order stating, at paras. 34-35: Thus, what the Court has before it is an Order that authorizes a list price of $3.8 million for the Millar Avenue Building. It does not propose a sale price of $3.8 million. All that the Order does is establish a process for the sale of the property. Any proposed sale must still be confirmed. At this point, the claim of loss is without any foundation at all. It is, as such, entirely speculative . It assumes that the listing agent will not market the property to its fullest potential or that the receiver will place an improvident sale before the Court of Queen’s Bench to be confirmed and the Court will confirm it. It is possible that Harmon will apply to Elson J. under s. 185(7) of the BIA or wait until it is determined that the property is proposed to be sold for less than what Harmon believes it is worth and place the Brunsdon Appraisal before Elson J. at that time. It is also possible that Harmon will obtain other financing so as to permit it to buy the property at the list price or the property will sell for an amount acceptable to Harmon. In my view, the Order does not directly have an impact on the proprietary or monetary interests of Harmon or crystallize any loss at this time. It concerns a matter of procedure only. It is merely an order as to manner of sale, as was the case in Dominion Foundry Co. (Re) (1965), 52 DLR (2d) 79 (Man CA). No value is in jeopardy, and no party can claim a loss as a result. In my view, the property involved in the proposed appeal does not exceed in value $10,000 as those words are used in s. 193(c) of the BIA . Thus, I conclude it was necessary for Harmon to apply for leave to appeal. (Emphasis added.) [41] However, Wilkes makes an additional point. Merely because the question in issue is procedural does not necessarily mean there is not property value involved in the appeal that exceeds $10,000. Section 193(c) requires a court to analyze the economic effect of the order sought to be appealed: at paras. 62-63. [42] I agree. What is required in any consideration of whether the appeal of an order falls within BIA s. 193(c) is a critical examination of the effect of the order sought to be appealed. Such an examination requires scrutinizing the grounds of appeal that are advanced in respect of the order made below, the reasons the lower court gave for the order, and the record that was before it. The inquiry into the effect of the order under appeal therefore is a fact-specific one; it is also an evidence-based inquiry, which involves more than merely accepting any bald allegations asserted in a notice of appeal: Bending Lake , at para. 64. Wilkes concurs on this point, holding, at para. 64, that the loss claimed must be “sufficiently grounded in the evidence to the satisfaction of the Court determining whether there is a right of appeal,” a point repeated in the subsequent chambers decision in Re Harmon International Industries , at para. 32. [43] While the amendment of the BIA in 1992 to include Part XI dealing with “Secured Creditors and Receivers” increased the practical need for the timely adjudication of appeals launched from orders made under the Act, an approach to the application of s. 193(c) that requires a fact-specific, evidence-based critical scrutiny of the effect of the order sought to be appealed should foster the remedial objectives of Canada’s insolvency statutes to provide for “ timely , efficient and impartial resolution of a debtor’s insolvency”: 9354-9186 Quebec Inc. v. Callidus Capital Corp. , 2020 SCC 10, 444 D.L.R. (4th) 373, at para. 40 (emphasis added.) [44] There will be cases where the effect of an order sought to be appealed is such that an appeal lies as of right under BIA s. 193(c) but the respondent takes the view that the appeal is without merit or the automatic stay under BIA s. 195 would cause undue delay or prejudice in the bankruptcy proceeding. In such cases, it is open to the respondent to move to cancel the automatic stay. A motion to cancel the stay prompts a judicial assessment of the merits of the appeal, the appellant’s litigation conduct, and the relative prejudice that cancelling or maintaining the stay would have on interested persons and the interests of justice generally: Royal Bank of Canada v. Bodanis , 2020 ONCA 185, 78 C.B.R. (6th) 165 (Chambers), at paras. 11-14; After Eight Interiors Inc. v. Glenwood Homes Inc. , 2006 ABCA 121, 391 A.R. 202 (Chambers), at para. 6; Pelletier (Re) , 2020 ABCA 450, 86 C.B.R. (6th) 108 (Chambers), at para. 45. Conclusion [45] The Pizales’ contention that the Chambers Judge erred by applying too restrictive an approach to s. 193(c) is based on a dichotomy in the case law that is more illusory than real, more semantic than substantive. While the cases under s. 193(c) have explained the interpretative task using differing language (as is to be expected in a body of jurisprudence under a national statute), at their core the cases share common ground in attempting to discern the operative effect of the order sought to be appealed: does the order result in a loss or gain, or put in jeopardy value of property, in excess of $10,000? [46] The Chambers Judge identified the applicable legal principles. I see no basis to interfere with his decision on that ground. VI.     SECOND ISSUE: DID THE CHAMBERS JUDGE MISAPPREHEND THE PIZALES’ KEY ARGUMENTS? [47] I shall now consider the Pizales’ submission that the Chambers Judge misapprehended the key elements of their arguments. The Pizales advance two main arguments: (i) The Chambers Judge erred in holding that as a result of the Approval Order they had not suffered a loss of greater than $10,000; and (ii) The Chambers Judge misapprehended their principal ground of appeal, which is not based on allegations of an improvident sale or improper sale process but rather based on a failure of the Motion Judge to properly weigh the interests of the creditors and debtor, favouring process in so doing. As part of this submission the Pizales contend that the receivership was “spent” upon Hillmount’s assignment of its first mortgage to Elle, which meant that there was no need for a sale of the Property. The “loss” argument [48] The Pizales are not arguing that since the Property is worth more than $10,000, a “loss” of greater than that amount is established for purposes of BIA s. 193(c). Instead, they submit that appraisals showed they had equity in the Property greater than $10,000 when the Property was valued on an “as complete” basis. The Receiver’s sale jeopardized that equity and approval of the sale would increase their liability exposure to their mortgagees as compared to a sale on an “as complete” basis. As they submitted in their factums: the Approval Order entails a loss of their rights to retain the Property as its value increases and sell it when the renovations are complete if they so choose (Jan. 19 factum, para. 53); what they want to do is retain ownership of the Property (Jan. 25 factum, para. 7). [49] The Chambers Judge understood the Pizales’ argument. At para. 26 of his reasons he wrote: “As I understand this argument, if the renovations were completed, they could achieve a higher price for the home and the gap between what the receiver is selling the house for and what could be obtained if the Pizales were permitted to finish the renovation would represent the loss.” He rejected the submission that the Approval Order would result in a loss to the Pizales, concluding that the “motion judge made strong findings that the receiver did not act improvidently.” [50] I do not regard the Chambers Judge’s conclusion as one based on an error in principle or an unreasonable result. [51] Central to the Pizales’ submission is their assertion that selling the Property in a renovated state would fetch a higher sales price. The evidence before the Motion Judge and Chambers Judge strongly indicated that such would be the case. But, for the purposes of a s. 193(c) analysis, that is neither here nor there. That is because the parameters of the Receiver’s sale were set, for all practical commercial purposes, by the terms of the Appointment Order made earlier on June 19, 2020. [52] The Appointment Order was made when the Property was in an unfinished state and a significant expenditure of funds would be required to complete the renovations. The Appointment Order authorized the Receiver to take possession of the Property and market it for sale. It did not authorize the Receiver to complete the renovations the Pizales had started to make. Indeed, para. 19 of the Appointment Order limited the Receiver’s authority to borrow from Hillmount to $150,000, an amount that would not come close to completing the needed renovations. [53] The Appointment Order had the effect of authorizing a process to market the Property on an “as is” basis or, as put by the Receiver in one of its factums, the Appointment Order “contemplated a liquidation process, not a renovation process.” That order, not the Approval Order, put in jeopardy any difference in value between the sale of the Property on an “as complete” and “as is” basis. Accordingly, the Approval Order did not result in any loss beyond that already worked by the Appointment Order’s authorization of the Receiver to market the Property on an “as is” basis. Put another way, the Pizales’ appeal of the Approval Order seeks to unwind the economic effect of the Appointment Order, which the Pizales did not appeal. [54] The Pizales advance a supplementary argument, contending that even on an “as is” sale basis the Approval Order resulted in a loss to them because the price fetched by the Receiver was less than one of their “as is” appraisals. They argue that the Chambers Judge exacerbated the Motion Judge’s error in finding that none of the Pizales’ appraisals considered the Property on an “as is” basis. [55] I am not persuaded by this submission. After the Receiver had entered into the Sale Agreement and moved for approval, the Pizales filed two appraisals of the Property: (i) a December 30, 2020 appraisal by Heather Markoff, which valued the Property on an “as complete” basis at $6.9 million. The report recorded the land value “as if vacant” at $5 million and estimated the Property’s “as is” market value at $5.955 million, although the author stated that she was unable to locate current sales activity in a partially complete state of construction at time of sale; and (ii) a January 4, 2021 Colliers appraisal, which estimated the “as complete” value of the Property at $6.075 million. [56] The Pizales also had obtained a June 2020 appraisal from TM Appraisers Inc., which opined that the fair market value of the Property on an “as if complete” basis was $7.5 million. It listed the land value “as if vacant” at $5 million “by extraction” and contained an “As Is” Addendum that estimated the “as is” value at $6.525 million. According to the Receiver, this appraisal was before Koehnen J. in redacted form but not produced in response to the Sale Agreement. [57] Although the Motion Judge referred in her reasons to the December 2020 and January 2021 appraisals, she did not make express reference to the “as is” value found in the December 2020 appraisal. I do not view her failure to do so as amounting to an error that somehow brings the “as is” value of the Property into question. As the Motion Judge noted in her reasons: the Receiver listed the Property at $4.8 million, a price higher than the appraisals it had received; 23 showings elicited no offers; the Receiver lowered the listing price, which resulted in its receipt and negotiation of a number of offers but no deal; and, finally the Receiver accepted the early November 2020 offer from the Purchasers, which was higher than its two appraisals and any other offer received. Against those efforts by the Receiver, and the absence of any alternative transaction presented by the Pizales or their creditors, the fact that the Purchaser’s offer was lower than the “as is” appraisals received by the Pizales spoke loudly to the reality of the existing market for the partially completed Property: Pricewaterhousecoopers Inc. v. 1905393 Alberta Ltd , 2019 ABCA 433, 98 Alta. L.R. (6th) 1, at para. 15. In those circumstances, it is no surprise that the Motion Judge did not treat the “as is” estimate as a relevant indicator of market conditions. [58] Accordingly, I am not persuaded that the Chambers Judge erred in concluding that the Approval Order did not result in a loss greater than $10,000 and, as a result, the Pizales’ appeal did not fall within BIA s. 193(c). The “spent” receivership argument [59] Although that is sufficient to dispose of the Pizales’ panel review motion, I wish briefly to address the Pizales’ submission that when Hillmount assigned its first mortgage to Elle, it was “made whole”. They argue that with the original applicant creditor no longer part of the receivership and the remaining mortgagees opposed to the sale, the receivership was “spent,” with the result that there was no need for the Property’s sale. [60] The Motion Judge’s reasons provide a complete answer to that submission. The Motion Judge spent considerable time in her reasons considering and weighing the interests of the various parties: at paras. 18-26. She wrote that: (i) The reasons for the mortgagees opposing the sale were not apparent on the face of the record; (ii) The mortgagees and Pizales failed to engage in the court-authorized receivership and sales process at any time prior to the signing of the Sale Agreement; (iii) The Receiver conducted a legitimate and proper sales process; and, significantly, (iv) The mortgagees and Pizales did not put on the table any alternative transaction or bring a motion to discharge the Receiver. [61] On the last point, in its December 1, 2020 Acknowledgement in favour of the Receiver and Hillmount, Elle specifically acknowledged that it understood “(i) the Receivership is not at an end by virtue of the undersigned accepting the Assignment; and (ii) until terminated by Court order, the Receivership remains in full force and effect.” [62] In light of those circumstances, the Motion Judge’s conclusion that, having weighed the interests of all parties there was no basis to allow their objections to prevent the Receiver from concluding the agreement, was a reasonable one. VII.    THIRD ISSUE: DID THE CHAMBERS JUDGE ERR IN FAILING TO GRANT LEAVE TO APPEAL PURSUANT TO BIA s. 193(e)? [63] In seeking to set aside the Chambers Judge’s refusal to grant leave to appeal the Approval Order pursuant to BIA s. 193(e), the Pizales largely repeat the arguments they make in respect of s. 193(c). I have already dealt with those arguments. I would only add that the Chambers Judge, applying the well-known test for granting leave to appeal set out in Business Development Bank of Canada v. Pine Tree Resorts [16] and the deference appropriate to the discretionary decision of the Motion Judge, [17] concluded that the Pizales’ appeal would have little importance to bankruptcy/insolvency matters beyond the parties, did not raise a serious issue for appeal, and would hinder the receivership and risk losing the sale to the Purchasers. Those conclusions were reasonable ones, anchored as they were in the record. I see no basis to interfere with the Chambers Judge’s refusal to grant the Pizales leave to appeal. VIII.   FOURTH ISSUE: THE ADMINISTRATION ORDER [64] The Administration Order approved the Receiver’s activities described in its Second Report and First Supplement to the Second Report and increased the Receiver’s borrowing authority from $150,000 to $250,000. Before the Motion Judge, the Pizales did not oppose the issuance of the Administration Order. [65] The Pizales sought to appeal, or seek leave to appeal, the Administration Order. Before the Chambers Judge they made two arguments: (i) the Administration Order is inextricably linked to the issues regarding the Approval Order, so that if they had a right to appeal the Approval Order or were granted leave to do so, they were entitled to appeal the Administration Order; and (ii) the Administration Order creates a “loss” as it authorizes the Receiver to borrow a further $100,000. [66] In its Second Report dated December 4, 2020, the Receiver stated that any additional amounts borrowed would be applied to the Receiver’s existing fees and any future fees or expenses leading up to the closing of the sale. Accordingly, the purpose of the further borrowing approved by the Administration Order is to enable the Receiver to complete its efforts to sell the Property on an “as is” basis. The increased borrowing power is ancillary to the exercise of the Receiver’s powers under the Appointment Order and does not result in any further jeopardy of value than that worked by the Appointment Order. Accordingly, for purposes of the s. 193(c) analysis, the operative effect of the Administration Order is, as the Pizales describe, inextricably linked with the effect of the Approval Order, which the Chambers Judge correctly found did not fall within s. 193(c). [67] The Chambers Judge dismissed the Pizales’ motion in respect of the Administration Order for the reasons supporting his dismissal of their motion regarding the Approval Order. That was a reasonable conclusion for him to reach on the record. I see no basis to interfere with it. IX.     DISPOSITION [68] For the reasons set out above, I would dismiss the Pizales’ panel review motion. [69] If the parties are unable to agree on the costs of the motion, any party seeking costs of the motion may deliver brief written cost submissions of up to five pages in length within 10 days of the release of the reasons. Any party against whom costs are sought may deliver brief responding cost submissions within 5 days thereafter. Released: May 28, 2021 “G.R.S.” “David Brown J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. B.W. Miller J.A.” [1] Application for leave to appeal under BIA s. 193(e) dismissed: 2016 ONCA 485, 37 C.B.R. (6th) 173. [2] Re Dominion Foundry Co . , (1965) 52 D.L.R. (2d) 79 (Man. C.A.); Alternative Fuel Systems Inc. v. EDO (Canada) Ltd. (Trustee of) , 1997 ABCA 273, 48 C.B.R. (3d) 171 (Chambers). [3] Business Development Bank of Canada v. Pine Tree Resorts Inc . , 2013 ONCA 282, 115 O.R. (3d) 617 (Chambers), at para. 17. [4] Trimor Mortgage Investment Corporation v. Fox , 2015 ABCA 44, 26 Alta. L.R. (6th) 291 (Chambers). [5] Section 195 states, in part, that “all proceedings under an order or judgment appealed from shall be stayed until the appeal is disposed of, but the Court of Appeal or a judge thereof may vary or cancel the stay … if it appears that the appeal is not being prosecuted diligently, or for such other reason as the Court of appeal or a judge thereof may deem proper.” [6] Simonelli v. Mackin , 2003 ABCA 47, 320 A.R. 330 (Chambers), at paras. 18-20; Re Bearcat Exploration Ltd . , at para. 10; Business Development Bank of Canada v. Pine Tree Resorts , at para. 17; 7451190 Manitoba Ltd. v. CWB Maxium Financial Inc. et al . , 2019 MBCA 95 (Chambers), at para. 18; Buduchnist Credit Union Limited v. 2321197 Ontario Inc . , 2019 ONCA 588, 72 C.B.R. (6th) 245, at para. 12; CWB Maxium Financial Inc. v. 2026998 Alberta Ltd . , 2020 ABCA 118 (Chambers), at paras. 1-2. [7] Simonelli , at paras. 26-27. [8] Enroute Imports Inc. (Re) , at para. 6. [9] Davidson (Re) , at para. 6. [10] IceGen Inc. (Re) , 2016 ONCA 902, 42 C.B.R. (6th) 183 (Chambers), at para. 3, leave to appeal under s. 193(e) dismissed, 2016 ONCA 907, 42 C.B.R. (6th) 175. [11] 2003945 Alberta Ltd. v. 1951584 Ontario Inc. , 2018 ABCA 48, 57 C.B.R. (6th) 272 (Chambers), at para. 21. [12] Sangha v. Bhamrah , 2017 BCCA 434, 6 B.C.L.R. (6th) 1, at paras. 9-12. [13] Courtice Auto Wreckers , at para. 22. [14] ATB Financial v. Coredent Partnership , 2020 ABCA 83, 77 C.B.R. (6th) 190 (Chambers), at para. 6. [15] Athabasca Workforce Solutions Inc. v. Greenfire Oil & Gas Ltd. , 2021 ABCA 66, 87 C.B.R. (6th) 26 (Chambers), at para. 14. [16] The test set out in Pine Tree Resorts was adopted by a panel of this court in Impact Tool & Mould Inc. v. Impact Tool & Mould Inc. Estate , 2013 ONCA 697, at para. 3. [17] Reciprocal Opportunities Incorporated v. Sikh Lehar International Organization , 2018 ONCA 713, 426 D.L.R. (4th) 273, where this court stated, at para. 54, that “an appeal court will interfere only where the judge considering the receiver’s motion for approval of a sale has erred in law, seriously misapprehended the evidence, exercised his or her discretion based upon irrelevant or erroneous considerations, or failed to give any or sufficient weight to relevant considerations.”

COURT OF APPEAL FOR ONTARIO CITATION: Hilson v. Evans, 2021 ONCA 262 DATE: 20210423 DOCKET: C68133 Benotto, Miller and Trotter JJ.A. BETWEEN Janet Louise Hilson ppellant (Plaintiff, Defendant by Counterclaim) and Carole Evans Respondent (Defendant, Plaintiff by Counterclaim) Howard W. Reininger, for the appellant Orie Niedzviecki, for the respondent Heard and released orally: April 19, 2021 by video conference On appeal from the judgment of Justice L. Sheard of the Superior Court of Justice, dated February 19, 2020. REASONS FOR DECISION [1] This is an appeal from a judgment of an amount less than $50,000. The appeal is properly brought to the Divisional Court. [2] The appeal is quashed. Under the circumstances, there will be no costs of the appeal. “M.L. Benotto J.A.” “B.W. Miller J.A.” “Gary Trotter J.A. ”

COURT OF APPEAL FOR ONTARIO CITATION: Hilton v. Hilton, 2021 ONCA 29 DATE: 20210119 DOCKET: C68243 Tulloch, Miller and Paciocco JJ.A. BETWEEN Marlene Dale Hilton Applicant (Respondent) and Charles Mark Hilton Respondent (Appellant) Michael J. Stangarone and Stephen P. Kirby, for the appellant Dale A. Turner, for the respondent Heard: November 18, 2020 by video conference On appeal from the order of Justice Paul Nicholson of the Superior Court of Justice, dated February 24, 2020. REASONS FOR DECISION Background [1] The respondent initiated divorce proceedings in September 2018. The appellant had not filed an Answer by the time of the first case conference on March 21, 2019. The respondent brought a motion for an order for an uncontested trial. At the case conference, Fryer J. noted the appellant in default and ordered him to deliver his Answer, disclosure, and financial statements – including Notices of Assessment – within 30 days. She held the respondent’s motion for an uncontested trial in abeyance until the 30-day period expired. If the appellant delivered the materials as required, the noting in default would be set aside and the motion for an uncontested trial would be dismissed. If not, the uncontested trial would proceed. [2] The appellant did not comply with the order. By the second case conference on June 19, 2019, he had still not filed an Answer or any materials. Accordingly, Fryer J. confirmed the appellant’s noting in default and scheduled the uncontested trial for September 23, 2019. She also ordered the partition and sale of the matrimonial home. [3] The uncontested trial was ultimately held on November 22, 2019 before Fryer J. She made orders providing the respondent with exclusive possession of the matrimonial home, facilitating the sale of the matrimonial home and the division of the sale proceeds, and granting the respondent temporary spousal support. The determination of final spousal support and child support were left to a continuation of the uncontested trial. The continuation has not yet taken place. [4] Thereafter, in February 2020, the appellant brought a 14B motion seeking the following relief: setting aside all orders made to date; granting leave to serve and file an Answer and financial statements; and granting leave to dispense with the requirement to serve and file his Notices of Assessment, which he stated were unavailable due to the actions of the respondent. The motion was heard in writing by Nicholson J., who dismissed the motion. Although Nicholson J.’s handwritten endorsement is brief, his reason for the dismissal appears to be that the appellant had not appealed any of Fryer J.’s orders. [5] The appellant now appeals Nicholson J.’s dismissal of the 14B motion and requests this court set aside Nicholson J.’s order. The appellant also requests that this court set aside all of Fryer J.’s previous orders, grant the appellant 30 days to file his Answer and financial statements without the Notices of Assessment, and order the parties to proceed to another case conference on the substantive issues. In the alternative, the appellant requests this court order the 14B motion be determined by another judge of the Superior Court of Justice via an oral hearing. Finally, he requests costs of this appeal. For the reasons set out below, we allow the appeal in part. Analysis [6] The appellant argues that the 14B motion before Nicholson J. was brought under r. 25(19) of the Family Law Rules , O. Reg. 114/99, although he did not specify that rule in the Notice of Motion. He makes his argument on the basis that the respondent had committed a fraud on the court through misrepresentations and material omissions in her evidence at the hearing of the uncontested trial. That is, the appellant argues there were things the respondent knew that she did not disclose, and things she said that she knew were not true. This resulted, the appellant argues, in an interim support order that was too high and an unfair division of the proceeds from the sale of the matrimonial home. [7] Nicholson J. did not address the substance of the motion to dismiss prior orders on the basis of fraud. He dismissed the motion on the basis that Fryer J.’s November 22, 2019 and previous orders could not be set aside because the appellant had not appealed any of those orders. [8] The appellant argues that the only route for him to challenge the November 22, 2019 order was to bring a motion to change under r. 25(19). An appeal would have been premature: Ketelaars v. Ketelaars , 2011 ONCA 349, 2 R.F.L. (7th) 296; Gray v. Gray , 2017 ONCA 100, 137 O.R. (3d) 65. This court held in Gray that r. 25(19) provides a more effective way to correct orders in its ambit and de-listed an appeal pending a decision at the court of first instance. [9] We agree with this submission to some extent. However, some of the orders the appellant seeks to set aside were made on the basis of his own failure to provide required disclosure. Nicholson J. was correct that an appeal would be required to set aside those orders. However, to the extent that the relief sought by the appellant was on the basis of the respondent’s misrepresentations at trial, those assertions ought to have been decided on the merits. [10] By failing to comply with the Family Law Rules and the orders of Fryer J., the appellant is the author of much of his misfortune. When a party does not participate in the process, things tend to not go well. Nevertheless, the appellant’s allegations of the respondent’s misrepresentations and material omissions must still be determined on the merits. [11] We allow the appeal in part and direct that the allegations of the respondent’s misrepresentations and material omissions be returned to the Superior Court for a determination of the merits under r. 25(19)(a). We offer no opinion on the merits of that motion. [12] It remains for the trial judge to determine the extent of the appellant’s participatory rights at the continuation of the trial, including whether the appellant will be permitted to advance any reliable and credible evidence that the respondent is misleading the court. DISPOSITION [13] The appeal is allowed and the matter is returned to the Superior Court of Justice for a new hearing of the r. 25(19)(a) motion, based on the written record that was before Nicholson J. Costs of the appeal are fixed at $15,000 inclusive of HST and disbursements. These costs are to be awarded to the party that is successful on the r. 25(19) motion. However, if the appellant abandons the r. 25(19) motion, the costs of this appeal will be payable to the respondent, subject to any contrary order by the Superior Court of Justice. “M. Tulloch J.A.” “B.W. Miller J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hoang v. Mann Engineering Ltd., 2021 ONCA 2 DATE: 20210105 DOCKET: C68186 Doherty, Lauwers and Miller JJ.A. BETWEEN K. Matthew Hoang Plaintiff (Appellant) and Mann Engineering Ltd., Aris Building Technologies, Cartwright Management, Mann Enterprises, Wu Ventures, Hay Solar Ltd., and Gigajoule Research and Development Ltd. (carrying on business as the “Mann Group”) Defendants (Respondents) K. Matthew Hoang, appearing in person Ted Flett and Daniel Hassell, for the respondents Heard: December 3, 2020 by video conference On appeal from the order of Justice B. Glustein of the Superior Court of Justice, dated November 4, 2019, reported at Hoang v. Mann Engineering Ltd. , 2019 ONSC 6383. COSTS ENDORSEMENT [1] Costs of the appeal are awarded to the respondents in the amount of $15,000, inclusive of disbursements and all applicable taxes. “Doherty J.A.” “P. Lauwers J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hornstein v. Kats, 2021 ONCA 293 DATE: 20210506 DOCKET: C68450 Huscroft, Nordheimer and Harvison Young JJ.A. BETWEEN Adriana Hornstein Plaintiff (Appellant) and Anatoly Kats and Rachel Higgins Defendant (Respondents) Stephen R. Dyment, for the appellant Mark A. Ross and Sharon A. Sam, for the respondent, Anatoly Kats Rachel Higgins, acting in person Heard: April 29, 2021 by video conference On appeal from the judgment of Justice Carole J. Brown of the Superior Court of Justice, dated May 5, 2020. REASONS FOR DECISION [1] This case arises out of an alleged partnership for the purchase of a residential property. The appellant’s argument that she was in a partnership with the respondent Kats was rejected by the trial judge following an 18-day trial. The trial judge found that, on an objective view, the appellant’s actions were not consistent with a partnership and that no partnership was created. The trial judge also found that the appellant had not contributed any monies to the purchase or maintenance of the property and had no beneficial interest in the property she alleged was owned by the partnership. [2] The trial judge found, further, that the appellant was not a credible witness, whereas she found that the respondent Kats was credible and preferred his evidence. She found that the appellant took advantage of Kats, his relative lack of sophistication in dealing with properties, and his difficulties with the English language. Among other things, the trial judge found that the appellant took out a second mortgage in Kats’ name, secured against his family home, without his knowledge. [3] The trial judge’s findings are entitled to deference. The appellant has not succeeded in establishing that the judge made any error, let alone a palpable and overriding error, requiring this court’s intervention. [4] The appeal is dismissed as against the respondent Kats. [5] The trial judge found that the respondent Higgins had neither a claim for slander of title nor a claim for damages for breach of s. 132 of the Land Titles Act , R.S.O. 1990, c. L.5 . Nevertheless, she ordered the appellant to pay Higgins punitive damages in the amount of $35,000, citing the egregious, unreasonable, and malicious nature of the appellant’s actions. [6] It is well established that there is no basis for an award of punitive damages in the absence of an independent actionable wrong: Whiten v Pilot Insurance Co. , 2002 SCC 18, [2002] 1 S.C.R. 595 . Punitive damages cannot be awarded simply on the basis of a party’s misconduct. Given that the trial judge did not identify an independent actionable wrong, the award of punitive damages cannot stand. [7] Accordingly, the award of punitive damages must be set aside. The appeal is allowed only to this extent. [8] The respondent Kats is entitled to his costs on the appeal, fixed in the agreed amount of $15,000, all-inclusive. [9] It is not appropriate to award costs to the appellant against the respondent Higgins in this court, and no such costs are ordered. The costs order below remains unchanged. “Grant Huscroft J.A.” “I.V.B. Nordheimer J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Iafolla v. Lasota, 2021 ONCA 245 DATE: 20210420 DOCKET: C68673 Rouleau, Benotto and Miller JJ.A. BETWEEN Enrico Iafolla Applicant (Appellant) and Jolanta Lasota Respondent (Respondent) Payam Ezzatian, for the appellant Brian P. Pilley, for the respondent Heard: April 1, 2020 On appeal from the judgment of Justice Paul B. Schabas of the Superior Court of Justice, dated September 1, 2020. Benotto J.A.: [1] This is an appeal brought by the insurer of the named appellant Enrico Iafolla. He appeals the dismissal of an application for a declaration that, as a judgment creditor of the ex-husband of the respondent, he is entitled to receive the balance of the proceeds of the sale of a matrimonial home. Pursuant to the divorce judgment between the respondent and her ex-husband, those funds are to be held as security for his support obligations. [2] As I will explain, the issue here engages the court’s fundamental duty to satisfy itself that reasonable arrangements have been made for the support of children. I would allow the appeal in part and direct the matter back to the trial judge to consider whether a variation of the Divorce Judgment is appropriate as a result of the material change in circumstances. BACKGROUND [3] The respondent Jolanta Lasota and Zlatko Antonov were married and have one child. They separated in 2017. It is common ground that Antonov has paid no child support, has shown little interest in the child, now 11, and did not participate in the divorce proceedings. He made no financial disclosure. [4] On July 25, 2018, Backhouse J. presided over the divorce. Antonov did not appear. She attributed an income to him based on his bank deposits and established monthly child and spousal support in the amounts of $1,429 and $3,191 respectively. In the Divorce Order, she gave Ms. Lasota control over the sale of the jointly held matrimonial home. The net proceeds of the sale after paying real estate commissions, legal expenses, tax arrears, and the outstanding mortgage were to be divided into two equal shares. From Antonov’s share, she ordered that the arrears of child and spousal support then owing, plus the equalization payment be deducted. The trial judge further ordered at paragraph 19: The remaining balance of [Antonov’s] share of the net proceeds of the sale of the Matrimonial Home, if any, shall be held in trust as security for [Antonov’s] future child and spousal support obligations. [5] The home was sold in November 2018. It appeared on closing that there was a writ of execution registered on title to the home on November 28, 2017. The writ relates to a judgment against Antonov for $380,071 plus costs and interest. [6] The net proceeds of the sale were $594,273.30. It was agreed between the appellant and the respondent that, from these proceeds, various fees, tax, and mortgage payments would be paid. In addition, the 8 months of spousal and child support arrears were paid to the respondent.  The balance of Antonov’s share of the proceeds would be placed in trust without prejudice the appellant’s right to bring an application to determine who has priority to those funds. The amount in issue now is $180,670.15. [7] As mentioned, Antonov has made no support payments, including pursuant to the Divorce Order. His arrears would now be over $140,000 and soon will amount to the entire amount being held back from the sale. POSITIONS OF THE PARTIES The appellant [8] The appellant’s position is that he is entitled to the full amount of $180,670.15 pursuant to his rights under s. 2 of the Creditors' Relief Act, 2010 , S.O. 2010, c. 16, Schedule 4 (“ CRA ”). He submits that the Divorce Order should be set aside to the extent that it interferes with his rights under the CRA . [9] Section 2 of the CRA states: 2. (1) Except as otherwise provided in this Act, there is no priority among creditors by execution or garnishment issued by the Superior Court of Justice, the Family Court of the Superior Court of Justice and the Ontario Court of Justice. Exception, support or maintenance orders (3) A support or maintenance order has the following priority over other judgment debts, other than debts owing to the Crown in right of Canada, regardless of when an enforcement process is issued or served: 1. If the maintenance or support order requires periodic payments, the order has priority to the extent of all arrears owing under the order at the time of seizure or attachment. 2. If the support or maintenance order requires the payment of a lump sum, the order has priority to the extent of any portion of the lump sum that has not been paid. [10] The appellant argues that the effect of this section is to give priority to lump sum support orders and periodic payments in arrears only.  Following the payment which cleared up arrears to that date, he submits that he is entitled to collect on his judgment. [11] The appellant relies on Maroukis v. Maroukis (1981), 33 O.R. (2d) 661 (C.A.), aff’d [1984] 2 S.C.R. 137. In that case, the trial judge ordered that the jointly owned matrimonial home vested with the wife retroactive to the date of separation. The trial judge declared that any subsequent executions on the property did not affect the wife’s title. On appeal, this court held that the trial judge had no jurisdiction to make a retroactive order since the house was held in joint tenancy when the executions were filed and “attached to [the husband’s] interest in it.” The Supreme Court of Canada agreed with the Court of Appeal’s conclusion. [12] Maroukis was followed in Ferguson v. Ferguson , 116 D.L.R. (4th) 707 (Ont. Unif. Fam. Ct.), at p. 713, which found that a writ of execution for a debt of the husband, filed before the order that the house be sold and proceeds divided, “has priority over any claim that the wife has to the husband's net proceeds of the sale of the matrimonial home.” [13] Consequently, the appellant seeks a declaration that he has an entitlement to the proceeds. The respondent [14] The respondent submits that the Court has no jurisdiction to vary the Divorce Order outside the divorce proceedings. The effect of the order sought would be to vary the Divorce Order. Further she submits that the writ and the CRA create no substantive right to the funds for the applicant. [15] The respondent relies on Stevens v. Stevens (2005) , 20 R.F.L. (6th) 453 (Ont. S.C.J.), aff’d 214 O.A.C. 201, where the trial judge distinguished Maroukis and Ferguson as cases determined under provincial family law statutes which did not permit retroactive orders, whereas the creation of a trust is based on the court’s equitable jurisdiction. In Stevens a retroactive vesting order was found to prevail over a writ filed by a bank. This court agreed that Maroukis and Ferguson were therefore distinguished: Stevens v. Stevens (2006), 214 O.A.C. 201, at paras. 12,15. DECISION OF THE APPLICATION JUDGE [16] The application judge concluded that the trial judge crafted the Divorce Order to create a trust to secure the respondent’s support payments. This takes priority over the applicant’s interest which, in any event, is simply that of an execution creditor whose interest is subject to “all the equities”: Ontario Development Corp. v. Trustee of the Estate of I.C. Suatac Construction Ltd. (1976), 69 D.L.R. (3d) 353, at p. 359 (Ont. C.A.); see also 1842752 Ontario Inc. v. Fortress Wismer 3-2011 Ltd ., 2020 ONCA 250, at para. 37. [17] The application judge relied on Stevens , where Cronk J.A. expressed concern that the bank was pursuing a collateral attack on the original vesting order, stating, at para., 21 that “the determination of this issue required an evaluation and weighing of the equities as between the Bank and Ms. Stevens”. The application judge concluded that attempts to vary such orders should be addressed in the original proceeding, where the Court may consider the equities between the parties, including the scope and purposes of support orders made under the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). [18] The application was dismissed. ANALYSIS [19] I have concluded that the application judge erred: (i) in his interpretation of the jurisprudence; and (ii) by not addressing the court’s duty regarding child support. Consequently, the matter should be returned to the trial judge to consider the material change in circumstances. Jurisprudence [20] The application judge relied on Stevens to establish the priority of the respondent’s claim to the proceeds of sale. There, the trial judge had determined that a constructive trust operated as of the date of separation to vest the matrimonial home in the wife’s name. Therefore, the wife had title to the home before the execution was filed. Here, the respondent did not have title in the husband’s portion of the sale at the time the writ was filed. [21] However, I do not agree that Maroukis, relied on by the appellant, assists him. There, a writ of execution was filed with the sheriff before the trial judge vested property in the name of the wife. On an application to the trial judge to “clarify the judgment” the trial judge vested the home in the wife’s name as of the date of separation – which pre-dated the writ of execution. This court confirmed the vesting order but not the retrospective effect. The Supreme Court dismissed the appeal confirming that, when property is divided on marriage breakdown, it does not vest until the order is made and there is no provision to retroactively vest property. The wife’s title was subject to a pre-existing execution filed with the sheriff. [22] The situation is different here. The underlying order in Maroukis was not, as it is here, for child and spousal support. And, as I will explain below, the limits on retroactivity do not apply to a variation of child support. The court’s obligation with respect to child support [23] Child support is the right of the child. The Divorce Act establishes a child centered approach to divorce orders by giving priority to children’s needs. Children are not parties to their parents’ divorce. Consequently, the presence of a child in divorce proceedings engages special duties for the court to ensure that arrangements are made for support.  Section 11(1)(b) of the Divorce Act provides that: [I]t is the duty of the court... (b)  to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made [24] The trial judge, in accordance with her duty under s. 11 of the Divorce Act , secured the sale proceeds of the home for future support including support for the child. There is no similar duty on the court for property claims between the spouses or for spousal support. The trial judge clearly intended to secure the ex-husband’s share of the matrimonial home proceeds for the benefit of the child. That is why she included paragraph 19 in the Divorce Order. [25] The appellant submits that the provisions of paragraph 19 mean that only the portion of the proceeds left over after his debt is paid are available to secure the support. He relies on the words “net proceeds if any” will be secured. I do not agree for two reasons. [26] First, paragraph 19 of the Divorce Order must be read with paragraph 16 which refers to net proceeds as: “remaining after paying real estate commissions, legal expenses on the sale, tax arrears, if any, [and the] outstanding mortgage”. There is no mention of outstanding debts or writs. [27] Second, the trial judge was clearly not aware of the appellant’s writ. Because the declaration sought by the appellant effectively eliminates the security the trial judge put in place, the security the trial judge would have ordered had she known of the writ would likely have been different. For example, she could have considered s. 2(3)(2) of the CRA to comply with her duty under s.11(1) of the Divorce Act. [28] The discovery of the writ of execution constitutes a material change in circumstances giving rise to a variation application. The test for a “material change”, is a change that is substantial, continuing and that “if known at the time, would likely have resulted in different terms”: Willick v. Willick , [1994] 3 S.C.R. 670, at p. 688; L.M.P. v. L.S ., 2011 SCC 64, at para. 32. Had the appellant’s writ of execution been known at the time of the Divorce Order, it would likely have resulted in a different order. [29] On a variation application, the terms of the original order are presumed to comply with the objectives of the Divorce Act: L.M.P. , at para 33. Once the material change is established any variation should reflect that change in accordance with the objectives set out in s. 17(4). [30] The Divorce Act provides: 17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, (a) a support order or any provision of one, on application by either or both former spouses; (3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order. (4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [Emphasis added.] [31] I note as well that the security ordered by the trial judge applies to both the spousal and child support. It was not apportioned as between the two types of support.  It will remain up to the trial judge address this if she considers it appropriate. At approximately $17,000/year in child support alone, and given that the child is only 11, the child support obligation alone could well exhaust the disputed amount. Power to return matter to trial judge [32] The application judge viewed the effect of the order sought to be a variance of the Divorce Order. He explained that the variation should be done in the divorce proceedings. However, given his disposition he did not consider referring the matter to the trial judge to assess whether a variation was appropriate to ensure that child support was in compliance with the provisions of the Divorce Act . [33] In the circumstances the application judge ought to have referred the matter to the trial judge. That the respondent did not move for a variation is not material for several reasons. [34] First, s. 11 imposes a duty on the court to ensure adequate arrangements for the support of the child. [35] Second, the primary objective in the Family Law Rules is to enable the court to deal with cases justly. In this regard, r.1(6) provides that the court may impose conditions and give directions as appropriate.  Further, the court, pursuant to r. 7(2) and (5) may add a party to a variation if the person – not a spouse - is affected. [36] Third, a return to the trial judge on a variation would eliminate the potential of two conflicting court orders. [37] Section 134 of the Courts of Justice Act , R.S.O. 1990, c. C.43, provides that this court may, “make any order that ought to or could have been made by the court” appealed from. Because the court below should have referred the matter back to the trial judge to revisit her orders in light of the writ it is appropriate that this court make that order. DISPOSITION [38] I would allow the appeal in part and order that the matter be returned to the trial judge to consider the material change in circumstances. [39] I would make no order as to costs. Released: April 20, 2021  “P.L.” “M.L. Benotto J.A.” “I agree Paul Rouleau J.A.” “I agree B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Inzola Group Limited v. Brampton (City), 2021 ONCA 143 DATE: 20210308 DOCKET: C66545 Strathy C.J.O., Brown and Miller JJ.A. BETWEEN Inzola Group Limited Plaintiff (Appellant) and The Corporation of the City of Brampton Defendant (Respondent) David Chernos, Stuart Svonkin and Alexandra Allison, for the appellant Adam Stephens, Daniel Rabinowitz and Kate Genest, for the respondent Heard: February 9, 2021 by video conference On appeal from the judgment of Justice John R. Sproat of the Superior Court of Justice, dated January 11, 2019, with reasons reported at 2019 ONSC 7632 and from the costs order dated August 26, 2019, with reasons reported at 2019 ONSC 3480. Strathy C.J.O.: A. introduction [1] This appeal concerns issues of contract interpretation and fair dealing in the context of a multi-million-dollar construction project for an extension to the City Hall in Brampton, Ontario. The appellant, Inzola Group Limited (“Inzola”), which was disqualified as a result of alleged breaches of the Request for Proposals (“RFP”), denied the breaches, claimed it had been disqualified as a result of bias, and sought damages for breach of contract. [2] The trial judge dismissed Inzola’s claims, but assessed the damages to which Inzola would have been entitled, had its claim succeeded. [3] Inzola submits that the trial judge erred in the interpretation of the contract, failed to recognize that the City breached a duty of fair and equal treatment, and erred in the quantification of damages. [4] For the reasons that follow, I would dismiss the appeal on liability. As a result, I find it unnecessary to address damages. B. BACKGROUND [5] On October 30, 2009 the respondent, the City of Brampton (“the City”), issued an RFP for an addition to its City Hall. The RFP process, which the trial judge described as “well-defined and detailed”, was designed to keep elected municipal officials out of the competitive bidding process by limiting the City Council’s role to approving or rejecting a proposal that had been recommended by an independent Evaluation Committee. The process contemplated that qualified "Respondents” who had submitted proposals would engage with City staff in a “Competitive Dialogue”. Their proposals would then be assessed by the Evaluation Committee, which would select a “Preferred Respondent”, whose proposal would be recommended to City Council for approval. The City engaged an outside expert as a Process and Fairness Advisor, to monitor the process, to ensure its fairness and to report directly to City Council. [6] Inzola was one of three qualified Respondents to the RFP. Inzola was based in Brampton and had extensive experience in land development and construction. An Inzola-related company had built the Brampton City Hall in the late 1980s. The principals of Inzola, John Cutruzzola and Bill Kanellopoulos, had deep roots in Brampton, having been residents since 1972. They owned a number of properties in downtown Brampton and leased space to the City. They had a familiar relationship with City Staff and with members of City Council, many of whom had served for more than 15 years. Between 2003 and 2010, the Mayor and all but one member of Council received donations from companies related to Inzola or its principals. The Mayor, in her first speech to the Brampton Board of Trade, had referred to Mr. Cutruzzola as “Mr. Brampton”. The Mayor and her husband had attended the weddings of Mr. Cutruzzola’s two sons. [7] As the trial judge observed, there was nothing untoward about these relationships. But, he found that “Inzola perceived itself as having something of a ‘home field’ advantage” in relation to decisions made by City Council. He found that “Inzola perceived that the greater the involvement of Council [in the RFP process], the greater the advantage to Inzola.” [8] From an early stage in the RFP process, Inzola, either directly or through its lawyers, sought to have the process changed so that qualified Respondents would have the opportunity to present their proposals and prices at a meeting of City Council. Ultimately, Inzola wanted Council to have input into the selection of the successful Respondent. As the trial judge observed, this proved to be a recurring theme in the events leading up to Inzola’s disqualification. [9] The RFP provided that the process would be managed by the City. During the process, Respondents were to contact the City only through the City’s Purchasing Supervisor, who was designated as the “sole point of contact”: RFP, ss. A1 and I1. [1] All Respondents were required to sign a confidentiality agreement in form and substance prescribed by the City: RFP, s. J7. [2] Respondents were prohibited from issuing any media release, public announcement or public disclosure relating to the RFP process without the prior written consent of the City: RFP, s. K4. [3] [10] Respondents agreed to conduct themselves in good faith and in accordance with the RFP: RFP, s. K8. [4] An addendum to the RFP provided that the Evaluation Committee could, in its sole discretion, disqualify a Respondent for a failure to comply with any of the terms and conditions of the RFP. [11] Inzola and two other contractors were selected to participate in the Competitive Dialogue. On April 7, 2010, the City sent them a confidentiality agreement (the “Confidentiality Agreement”) to be signed prior to the Competitive Dialogue. [12] The other two Respondents signed the Confidentiality Agreement and began the Competitive Dialogue process. Inzola objected to signing on the basis that the Confidentiality Agreement was overly broad. Inzola maintained that the Respondents should be able to present their final offers directly to Council. [13] Over the next two months, Inzola and its lawyers attempted to persuade the City that they should not have to sign the Confidentiality Agreement and that City Council should have an opportunity to see and hear presentations from all three Respondents concerning their proposals and pricing. Acting on the advice of the Process and Fairness Advisor, the City explained that the Confidentiality Agreement was mandatory, and that the RFP process did not contemplate Respondents making direct presentations to Council. Both the Process and Fairness Advisor and the Evaluation Committee concluded that allowing Inzola to make submissions to Council would be a “fatal breach” of the RFP and would contravene “principles of fairness and equity”. [14] Notwithstanding the City’s response, Inzola’s lawyer asked the City Clerk to permit a deputation on behalf of Inzola to address Council concerning “the scope and duration of the Confidentiality Agreement … and the opportunity for each [Respondent] to present Final Submissions with pricing to Council.” [15] On May 28, 2010, less than a week before a scheduled Council meeting on June 2, Mr. Cutruzzola left a telephone message for the City Clerk indicating that Inzola wanted to appear before Council, stating, “[e]ither we do it in Council or do it through the press.” [16] On June 1, 2010, Inzola’s lawyer sent a letter to the Mayor and members of the Council, attaching Inzola’s correspondence with the City, maintaining the position that the Confidentiality Agreement was too broad and that each Respondent should be entitled to present their final submission with pricing to Council, so that Council could hear an “unfiltered presentation”. [17] Mr. Cutruzzola was not permitted to address the Council at its meeting on June 2, 2010. He immediately gave an interview to the Brampton Guardian newspaper, outlining the concerns he had raised through his lawyer and stated that Inzola would never be part of a “secret process”. That interview was published the same day under the headline, “Developer accuses city of secrecy”. Mr. Cutruzzola was quoted as saying, “[w]hat is behind the secrecy? Why the secrecy?” and “[w]e do not participate in a secret process.” [18] The Process and Fairness Advisor advised the Evaluation Committee that Inzola was in breach of several provisions of the RFP and that it was necessary for the City to determine Inzola’s status immediately. By letter dated June 11, 2010, the City advised Inzola that it was disqualified from further participation in the RFP process. [19] Ultimately, one of the other two Respondents, Dominus Construction, was awarded the contract for Phase 1 of the project, the construction of the addition to City Hall. Phase 2, the construction of a library, has never proceeded. [20] Inzola commenced this action on July 4, 2011. C. TRIAL JUDGE’S REASONS [21] The trial lasted 38 days. Closing submissions of the parties ran to some 450 pages. The trial judgment was lengthy and thorough. [22] In view of the focused nature of Inzola’s appeal, I set out the trial judge’s findings only in relation to those matters that are the subject of this appeal. (1) Breach of contract [23] The trial judge found that Inzola breached the RFP in several respects. Confidentiality agreement [24] First, he found that Inzola failed to sign a confidentiality agreement. He rejected Inzola’s submission that the Confidentiality Agreement was overly broad because it was not restricted to protecting “commercial confidentiality”. In this regard, he referred to the evidence of Paul Emanuelli, an expert witness on public procurement, who testified that the definition of confidential information in the agreement was a standard one. The trial judge observed that the agreement had been drafted by external counsel and the other two Respondents had signed the agreement. [25] The trial judge found that, in any event, Inzola’s real concern about the Confidentiality Agreement was that it would preclude Inzola from presenting its proposal directly to Council. He observed, “[i]n my opinion, this was not a legitimate concern. I agree with [the Process and Fairness Advisor] and interpret the RFP as not allowing Respondents to present their Final Offers directly to Council.” Sole point of contact [26] The trial judge also found that Inzola had breached the sole point of contact provision of the RFP. He rejected as “highly technical” Inzola’s argument that the provision was concerned only with “questions” about the RFP and did not prohibit a Respondent from raising “concerns or complaints about the City’s conduct of the RFP process”. Pointing to section I1 of the RFP, the Communication Protocol, he noted that the RFP provided that any Respondent that communicated with the City other than through the Purchasing Supervisor could be disqualified. He found that Inzola clearly breached the RFP by having its lawyer write to the Mayor and Council on June 1, 2010, effectively asking them to intervene in the process. [27] As a preamble to these conclusions, the trial judge observed that all City witnesses had agreed that the 2005 “Bellamy Report” [5] was “highly persuasive, if not authoritative”, as to procurement best practices in public contracting. He made reference to observations in that report that elected municipal officials should remain outside the competitive process and should not be involved in reviewing bid documents, meeting with bidders and making their own evaluation. He noted that a direct appeal to Council would have been contrary to the recommendations of the Bellamy Report. [28] The trial judge thus accepted the City’s submission that Inzola’s interpretation of the “sole point of contact” provision would be unworkable, would wreak havoc on the procurement process, would undermine the integrity and proper functioning of the procurement process, and would “defeat the policy objective outlined in the Bellamy Report of keeping the politicians separated from specific procurements.” Media releases and public disclosure [29] The trial judge also found that Inzola had breached the RFP’s prohibition of public announcements or disclosure to the media. He found, again, that Inzola’s arguments concerning this issue were highly technical. There was no relevant distinction between making an announcement or press release and a response to a media inquiry. Mr. Cutruzzola had threatened to “do it through the press” if he were not allowed to speak to Council and that is exactly what he did. (2) Uneven Treatment [30] A significant part of Inzola’s case at trial was that the Mayor and City staff were biased against Inzola and that City staff had acted unethically to tilt the RFP process against Inzola and in favour of Dominus, the successful Respondent. The trial judge found that the City did not breach its obligations to Inzola and the disqualification of Inzola was not the result of bias. At para. 172, he found that “Dominus was selected as the Preferred Respondent based on the merits of its Final Offer and not by reason of any political inference or partiality.” [31] Inzola does not challenge this conclusion, except in one respect. [32] Dominus submitted a final offer dated December 9, 2010. This was some six months after Inzola had been disqualified. Dominus’s offer included “Phase 1”, the expansion of City Hall, and Phase 2, which included a library to be constructed at 20 George Street in Brampton. The offer stated that Dominus had an option to purchase 20 George Street. That statement was untrue, at least at the time that Council met on March 28, 2011 to consider whether to approve Dominus as the Preferred Respondent to construct the Phase 1 City Hall expansion. [33] On that date, Dominus advised City staff that as the City had deferred consideration of Phase 2, Dominus had not extended its option on 20 George Street. It said that it had a business relationship with the owner of the property and was confident that it could acquire the property. There was evidence to support the conclusion that at the Council meeting on March 28, 2011, and in a subsequent report to Council in July, City staff misled Council about the existence of an option. In fact, Dominus had told City staff that it was not prepared to pay for an option on 20 George Street, given that Phase 2 might not proceed. [34] However, on August 10, 2011, the day Council approved the contract with Dominus, Dominus acquired an option to purchase 20 George Street for $480,000. Ultimately, the City acquired the option from Dominus and purchased the property, in spite of the fact that Phase 2 was not proceeding. [35] At trial, Inzola cited the City’s dealings with Dominus and 20 George Street as evidence of a continuing bias against Inzola. Inzola submitted that the City provided assistance to Dominus, which it never would have provided to Inzola, to ensure that Dominus would succeed. [36] The trial judge rejected this argument: I do not agree. By August, 2011, City staff had been working hard for approximately 14 months to gain approval for a much needed City Hall expansion. Testimony and emails show City staff working at all hours of the day and night and on weekends. [The Process and Fairness Advisor] testified that a failed RFP can stigmatize a City and deter future respondents. So too could a second failed RFP stigmatize the senior staff members who were driving the process. I am satisfied that the assistance offered to Dominus had nothing to do with Inzola and everything to do with staff wanting to complete the project successfully to meet the needs of the City and to be recognized for that accomplishment. The dealings with 20 George St. do not, therefore, support Inzola's contention that bias against Inzola was a factor in its disqualification. [37] In contrast to Dominus’s alleged breach, the trial judge found that “the breaches by Inzola could not have been more fundamental. Inzola wanted Council to intervene and effectively sanction a new process whereby Inzola would get to make an unfiltered presentation of its proposal to Council.” (3) Damages [38] For the “sake of completeness”, the trial judge considered the damages that would have been awarded to Inzola, had he found the City liable to Inzola. Inzola argued that expectation damages should be awarded because it would have been awarded the contract had it not been disqualified. The trial judge rejected this argument. He found that the RFP was essentially an unenforceable agreement to negotiate, which would not create a contract until the successful Respondent had negotiated a contract with the City. The minimal performance principle found in Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, [2004] 1 S.C.R. 303 was applicable. If Inzola had established liability, it could only recover its reliance damages in the amount of $200,000, its estimated cost in responding to the RFP. [39] In the further alternative, the trial judge quantified Inzola’s damages in the event it was entitled to expectation damages. He held that Inzola was “fighting an uphill battle” to become the successful Respondent and that it had a 20% chance of doing so. Based on his calculation, Inzola would have made a profit of $13,818,260 had it been successful in securing the contract. As a result, he estimated Inzola’s damages at 20% of that amount, namely $2,763,652. D. DISCUSSION [40] Inzola raises five issues on appeal, which I shall discuss in order. (1) Was Inzola permitted to raise process concerns outside the sole point of contact? (a) The Parties’ Submissions [41] Inzola claims that the trial judge made two errors in the interpretation of the RFP. This section considers the first of the alleged errors. Inzola submits that the trial judge conflated the substance of its concerns about the RFP with the manner in which they were communicated. Specifically, Inzola submits that the trial judge erred by focusing on the merits of Inzola’s complaints rather than whether it was entitled to raise them directly with City Council and outside the “sole point of contact” provision of the RFP. [42] Inzola submits that the “sole point of contact” provision pertained only to operational communications in the course of the RFP process. It was not intended to apply to concerns about the process itself. Inzola says that the issue was not whether its objection to the Confidentiality Agreement was legitimate, it was whether it was entitled to raise the issue outside the sole point of contact. Inzola submits that the purpose of the relevant provisions of the RFP were to prevent Respondents from lobbying with City Council in favour of their proposals, not to prevent them from raising concerns about the process. [43] The City points out that by submitting its proposal, Inzola accepted the terms of the RFP. [6] The trial judge found that Inzola had committed three independent breaches of the RFP: it had failed to sign the Confidentiality Agreement; it had breached the duty to communicate only through the “sole point of contact”; and it had made a statement to the media. The City submits that any one of those breaches would have justified its disqualification. [44] The City submits that City officials wanted to keep Inzola in the process, because they believed it was desirable to have three Respondents competing for the contract. However, Inzola attempted to change the process to its own advantage, and persisted in that conduct in spite of the City’s warning that it would be disqualified. Ultimately, the Evaluation Committee disqualified Inzola, based on the advice of the Process and Fairness Advisor. (b) Analysis [45] Inzola’s submission about the trial judge’s reasoning must be considered in the context of its breaches of the requirements of the RFP. Absent a credible basis for refusing to sign the Confidentiality Agreement, Inzola was obligated to sign it. In this case, Inzola had no credible basis for not signing the agreement. Its real reason for not wanting to sign was, as the trial judge found, that Inzola wanted to advocate for its proposal before City Council. [46] Nor can there be any dispute that Inzola breached the prohibition against “media release, public announcement or public disclosure”. I agree with the trial judge that Inzola’s interpretation of the media provision was highly technical and contrary to its plain meaning. More fundamentally, by mischaracterizing the RFP to the press as a “secret process”, Inzola was attempting to undermine the process to its advantage. [47] Last, I agree with the trial judge that Inzola’s interpretation of the “Communication Protocol” was also highly technical and ignored the broad meaning of clause A1. The “sole point of contact” feature of the RFP was designed to ensure consistency and fairness in RFP communications. If Inzola had a complaint about the process, it was required, pursuant to the RFP, to communicate that complaint through the sole point of contact. Again, on a more fundamental level, Inzola’s communication with the Mayor and City Council was contrary to a principal objective of the RFP process – preserving the integrity of the process by keeping politics out of it. [48] Inzola was not disqualified because it misinterpreted the RFP. It was disqualified because its conduct not only breached the terms of the RFP, but because it threatened the credibility and integrity of the RFP process. It was disqualified by the Evaluation Committee, on the advice of the Process and Fairness Advisor, who were understandably concerned that politicizing the process at the insistence of one Respondent would cause a loss of confidence in the fairness and integrity of the process on the part of the other two Respondents and could cause the RFP process to fail. [49] In my view, the trial judge’s interpretation of the contract in this respect was reasonable and is entitled to deference: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 52. (2) Did the trial judge err by treating the “Bellamy Report” as part of the factual matrix? (a) The Parties’ Submissions [50] The second alleged interpretation error advanced by Inzola is that the trial judge erred in concluding that the Bellamy Report was part of the factual matrix of the contract, effectively treating Inzola’s conduct as a breach of the Bellamy Report’s recommendations as opposed to a breach of the RFP. [51] Inzola observes that the RFP was a contract and that the relevant contractual interpretation principles should apply. Contractual interpretation involves analyzing the words of the written contract, in light of its factual matrix. The factual matrix of a contract includes facts that are objectively within the knowledge of both parties at the time the contract was executed: Sattva , at paras. 47, 58. Inzola submits there was no evidence that it regarded the Bellamy Report as part of the contract’s matrix or underpinnings. [52] Inzola submits the trial judge erred by focusing his findings on the City’s subjective and uncommunicated intentions with regard to the Bellamy Report: Eli Lilly & Co. v. Novopharm Ltd. , [1998] 2 S.C.R. 129. Inzola says it had no reason to know that its actions would be measured against the Bellamy Report. Nor would Inzola have considered the Bellamy Report part of the factual matrix of the contract because the Report had no statutory effect and the Report concerns events that took place in a different city. Further, Inzola says it did not address in its closing submissions at trial whether the Bellamy Report could be used as an interpretive aid, because no one, including the City, suggested it could be. [53] Ultimately, says Inzola, the trial judge found a breach of the Bellamy Report, not the RFP. Specifically, the trial judge erred when he accepted the City’s submission, at para. 210, that bringing City Council into disputes about the procurement process would undermine the integrity and proper functioning of that process and “would defeat the policy objectives outlined in the Bellamy Report of keeping the politicians separated from specific procurements.” [54] The City counters that the trial judge’s interpretation of the RFP was based on the plain meaning of its provisions, which supported his conclusion that Inzola had clearly breached the RFP. The City submits that it was appropriate for the trial judge to consider the Bellamy Report in response to Inzola’s assertion that it was entitled to complain about the process, whether it was ultimately right or wrong. The Bellamy Report was relevant to how City staff developed and ran the RFP process and it was also relevant to the standard of commercial reasonableness. In addition to relying on the Bellamy Report as evidence of best practices, the City submits that the trial judge also relied on the expert evidence of Mr. Emanuelli, who testified on the subject of best practices in RFP processes, including the “single point of contact” approach. (b) Analysis [55] I do not accept Inzola’s submission. The trial judge was entitled to consider the underlying principles of the RFP and its structure in order to properly interpret the contract. [56] The trial judge considered a variety of evidence in his interpretation of the underlying principles of the RFP. The Bellamy Report was entered as an exhibit at trial and the trial judge qualified Mr. Emanuelli as an expert witness on “industry norms in Canadian public procurement”. The trial judge also relied on the evidence of City staff, who explained that the Bellamy Report had influenced their design of the RFP process. [57] For example, Mr. Lewis, Commissioner of Financial Services and Chair of the Evaluation Committee, gave evidence, in the trial judge’s wording, that “the standard in Brampton, and in other places he had worked, was that Council was not involved in evaluating tenders or proposals. That was a key Bellamy Report recommendation. It was also standard that the actual proposals or bids that were received did not go to Council.… It was also standard that Respondents were not allowed to delegate to Council.” [58] The trial judge did not find that the Bellamy Report was part of the “factual matrix” or that the parties had a meeting of the minds with respect to the report. It was not necessary for him to do so. In assessing the City’s response to Inzola’s conduct, he was entitled to consider, as he did, the underlying principles that informed the City’s choice of the structure for the RFP. These underlying principles made it clear that the RFP was designed to keep City Council separate from the evaluation process. The trial judge did not need to, as Inzola suggests, “fill in” the RFP terms with the Bellamy Report recommendations to come to this conclusion. As discussed above, Mr. Emanuelli and City witnesses stated that best practices in contracts of this nature called for the process to take place outside the political realm. (3) Did the City breach its duty of fair and equal treatment? (a) The Parties’ Submissions [59] Inzola claims that the City owed it a duty of fair and equal treatment in the RFP process, regardless of whether it breached the RFP. It claims the City breached that duty by treating Dominus’s breach differently from Inzola’s and applied an uneven standard to Dominus’s “non-compliant bid”. Inzola submits that, had Dominus’s bid been disqualified, there would have been a new RFP process and Inzola would have been entitled to bid. It claims damages for the loss of opportunity. [60] Inzola says that while the trial judge recognized a duty of fair and equal treatment, he failed to properly consider whether Dominus’s misrepresentation of the status of its option on 20 George Street should have resulted in its disqualification. Had he done so, he would have recognized that the City applied an uneven standard to Inzola’s conduct on the one hand and to Dominus’s on the other. Inzola submits that by failing to sanction Dominus’s misrepresentation by disqualifying it, the City breached the duty of fair and equal treatment owed to Inzola. [61] Inzola further submits that the timing of its disqualification is insignificant in the analysis of whether the City breached the duty of fair and equal treatment: CG Acquisition Inc. v. P1 Consulting Inc. , 2019 ONCA 745, at paras. 11, 16 and 19. While Inzola accepts that the City had discretion in the process, it submits that there was no exercise of discretion with regard to Dominus’s breach. In considering Inzola’s disqualification, the City raised the issue with the Evaluation Committee and consulted with the Process and Fairness Advisor. Inzola submits that same process was not followed when Dominus submitted a non-compliant bid. City staff knew about the breach and did not convene a meeting, nor did they consult the Process and Fairness Advisor. Instead, Inzola submits that City staff misled City Council about the misrepresentation. Inzola submits that had the City engaged in the same process for Inzola’s and Dominus’s breaches, they likely would not have breached their duty of fair and equal treatment – instead they engaged in two different processes, resulting in unfair and unequal treatment of Inzola. [62] The City makes three responses: (i) the duty of fair and equal treatment as articulated by Inzola was no longer in existence once Inzola had been disqualified; (ii) the trial judge compared Inzola’s and Dominus’s breaches and concluded they were not similar and therefore did not need to be addressed with similar processes; and (iii) the City had the discretion to deal with the breaches differently because the situations were different. Ultimately, the City submits that these arguments were before the trial judge and he rejected Inzola’s argument. The trial judge concluded that the breaches were not similar – Inzola’s breach was fundamental to the process. The City submits that Dominus’s breach was not only less serious, but also of a different nature. It related to an option in the distant Phase 2. There was no concern that Dominus’s promised option could not be delivered. In fact, the City now owns the property in question. (b) Analysis [63] I agree with the City’s submissions. Dominus’s “breaches” were not of the same order of magnitude as Inzola’s breaches. As the trial judge found, Inzola’s breach was fundamental. It threatened the integrity of the RFP process itself. In contrast, Dominus’s breach was inconsequential. It related to a second phase of the project, which never happened. The breach was also technical, in the sense that City officials never had any doubt that Dominus was able to secure an option on the property. [64] Even assuming, therefore, that Inzola had a right to insist on equal treatment after its disqualification, there was no reasonable comparison between the two “breaches”. Moreover, s. K9 of the RFP gave the City broad discretionary powers over the RFP process. Specifically, s. K9(f) empowered the City to waive deficiencies and excuse non-compliance. The City was therefore entitled to waive Dominus’s breach. (4) Did the trial judge err in the calculation of damages? [65] Inzola submits that the trial judge erred in finding that, in the event of success at trial, Inzola was entitled only to reliance damages, rather than expectation damages. In view of the fact that I would dismiss the appeal on liability, I do not find it necessary to address this issue. (5) Leave to appeal costs [66] Inzola seeks to appeal the costs order against it. I would not grant leave to appeal costs. [67] The trial judge awarded the City its costs on a partial indemnity basis of $3.08 million. Inzola has not demonstrated that the trial judge made an error in principle or that the costs award was plainly wrong: Open Window Bakery Ltd. , at para. 27. E. DISPOSITION [68] For these reasons, I would dismiss the appeal. If the parties are unable to resolve costs, they shall make written submissions. The City shall file its submissions within fifteen days of the release of these reasons and Inzola shall have seven days within which to respond. The submissions shall not exceed five pages in length, excluding costs outlines. Released: March 8, 2021  “G.R.S.” “George R. Strathy C.J.O.” “I agree. David Brown J.A.” “I agree. B.W. Miller J.A.” [1] “A1. Background. The City will manage the RFP Process and there will be a single point of contact for Respondents. During the RFP Process, Respondents should contact the City only through the Purchasing Supervisor as set out in RFP, section I. Communication.” “I1. Communication Protocol. Any Respondent who has questions with regard to the RFP Process, requirements, or other aspects of the RFP shall communicate solely through Purchasing Division… Any Respondent found to be in communication with other than the Purchasing Supervisor may result in the City disqualifying the Respondent’s Submission.” [2] “J7. Confidentiality Agreement. Respondents are required to sign and submit a confidentiality agreement in a form and substance prescribed by the City … prior to the Competitive Dialogue Process.” [3] “K4. Media releases, public disclosures and public announcement. A Respondent, including any Joint Venture participant, and their Advisors, employees, representatives and Respondent Team members, and their respective Advisors, employees and representatives shall not issue or disseminate any media release, public announcement or public disclosure (whether for publication in the press, on the radio, television, internet or any other medium) that relates to the RFP Process, the RFP documents or the Project or any matters related thereto, without the prior written consent of the City.” [4] “K8. Good Faith Process. By responding to this request, the Respondent commits to respond to this RFP, and otherwise to conduct itself, in good faith with the City of Brampton and in accordance with the terms of this RFP.” [5] City of Toronto, Toronto Computer Leasing Inquiry and Toronto External Contracts Inquiry, The Honourable Denise E. Bellamy, 2005. [6] “K. Legal Matters. The respondent agrees and confirms that its submission to [the City] pursuant to this RFP indicates and expresses Respondent’s unqualified acceptance, agreement, promise and obligation to the following terms, conditions, provisions, disclaimers and requirements in this RFP. The delivery of a submission by the respondent shall constitute the respondent’s unqualified agreement and acceptance of the foregoing.”

COURT OF APPEAL FOR ONTARIO CITATION: Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc. , 2021 ONCA 250 DATE: 20210422 DOCKET: M52322 (C68270) Tulloch, Nordheimer and Jamal JJ.A. BETWEEN Jay-Pee Drycleaners Inc. (Lee, Byeongheon) Appellant/Respondent by cross-appeal (Responding Party) and 2321324 Ontario Inc. a.k.a. Jasaab Holdings Inc Respondent/Appellant by cross-appeal (Moving Party) Byeongheon Lee, in person/responding party Marwa Younes, for the respondent/moving party Heard: April 9, 2021 by video conference REASONS FOR DECISION [1] Prior to the hearing of this appeal, the court’s Senior Legal Officer wrote to the parties and advised them that there may be an issue regarding the jurisdiction of this court to hear the appeal. In response to that letter, the moving party brought a motion to transfer this appeal and the cross-appeal to the Divisional Court. At the hearing of the appeal, we granted an order transferring the appeal and the cross-appeal to the Divisional Court for reasons to follow. We now provide our reasons. [2] Mr. Lee, the appellant, leased commercial premises from the respondent. The respondent terminated that lease, wrongfully as found by this court in an earlier decision. [1] In that decision, this court granted summary judgment to Mr. Lee and ordered an assessment of damages. [3] That assessment of damages was conducted before Hackland J. in the Superior Court of Justice. By reasons dated March 6, 2020, he awarded Mr. Lee a total of $16,000 in damages. [2] Mr. Lee has appealed that damages award and the respondent has cross-appealed. [4] This court has jurisdiction to hear appeals from final orders of the Superior Court of Justice, with certain exceptions. One of those exceptions, set out in s. 19(1)(a) of the Courts of Justice Act , R.S.O. 1990, c. C.43, is where the amount ordered to be paid is not more than $50,000. The amount awarded in this case falls into that exception. [5] Consequently, this court does not have jurisdiction to hear the appeal. Exercising our authority under s. 110 of the Courts of Justice Act , we transferred the appeal and the cross-appeal to the Divisional Court, which has the jurisdiction to hear both matters. We did not make any order as to costs. “M. Tulloch J.A.” “I.V.B. Nordheimer J.A.” “M. Jamal J.A.” [1] Jay-Pee Drycleaners Inc v. 2321324 Ontario Inc. , 2017 ONCA 798 [2] Lee v. 2321324 Ontario Inc. , 2020 ONSC 1473

COURT OF APPEAL FOR ONTARIO CITATION: Jonas v. Elliott, 2021 ONCA 124 DATE: 20210225 DOCKET: C68049 Doherty, Pepall and Thorburn JJ.A. BETWEEN Richard Edmond Jonas and Anne Catherine Jonas Plaintiffs (Appellants) and Matthew Elliott, The City of Stratford and Carrie Goudy Defendants ( Respondents ) James J. Mays and John G. Langlois, for the appellants Robert Smith, for the respondents Heard: February 19, 2021 by videoconference On appeal from the order of Justice Michael D. McArthur of the Superior Court of Justice, dated January 17, 2020, with reasons at 2020 ONSC 354. REASONS FOR DECISION [1] This is an appeal of an order granting partial summary judgment, dismissing the action against Carrie Goudy, the host of a party, and the City of Stratford which rented the facility used to host the party and granted permission to serve alcohol. While attending the party, Matthew Elliott assaulted Richard Jonas, who suffered injuries. [2] The appellants, Richard and Anne Jonas, claim the motion judge erred in (a) finding no duty of care on the part of the host and/or the City, and (b) bifurcating the proceeding which, they assert, will result in a risk of duplication with their surviving claim against Mr. Elliott. [3] Following the hearing, the appeal was dismissed with reasons to follow. These are those reasons. [4] The Occupiers’ Liability Act R.S.O. 1990, c. O.2 provides that a person or organization with physical possession and/or responsibility for and control over a property is supposed to take steps to ensure that all persons on the property are reasonably safe while on the premises. This duty was correctly articulated by the motion judge. [5] He also correctly noted that in order to establish a duty of care, there must be a relationship of proximity and foreseeable harm. [6] The motion judge held that, in this case, there was a relationship of proximity. However, he held the altercation was not reasonably foreseeable because: a) Experienced and trained staff were hired to serve alcohol and a friend provided security at the door; b) Both Messrs. Jonas and Elliott had consumed alcohol before attending the party but neither exhibited prior signs of aggressive behaviour or conduct that would suggest they had consumed alcohol before they arrived; c) Ms. Goudy was unaware of their prior alcohol consumption; d) The incident was both sudden and brief; e) There was only one other minor incident that evening involving an intoxicated patron who was appropriately removed from the party, placed in a taxi and taken home; and, f) The fact that Mr. Jonas was let into the party by Ms. Goudy, was not the cause of the incident. [7] These findings of facts about the activity at the party are sufficient to demonstrate that the harm was not reasonably foreseeable, and these findings are owed deference. In any event there is no evidence that the altercation was caused or contributed to by intoxication. [8] The appellants suggest there was evidence that conflicts with the motion judge’s finding that the entrance was properly supervised and the event was a “modest” gathering. The appellants claim that although those providing alcohol were properly certified, the person at the entrance to the party was a friend. They say that some witnesses thought there were over two-hundred people at the gathering, inconsistent with this being a “modest” gathering. [9] We see no merit to these submissions as, even if this evidence had been accepted by the motion judge, it is not material to whether the altercation was reasonably foreseeable. [10] The motion judge accepted that the appellants did not demonstrate that there was an act or failure to act on the part of the occupier that caused Mr. Jonas' injury. The assault by Mr. Elliott on Mr. Jonas was entirely unexpected and could not have been reasonably foreseen by the respondents. As such, he concluded that there is no genuine issue requiring a trial. [11] We see no error in his finding that the harm was not reasonably foreseeable or his conclusion that Mr. Jonas’ claim and Mr. Elliott’s crossclaim against Ms. Goudy and the City should be dismissed. [12] Moreover, he correctly granted partial summary judgment. The claims against the respondents could readily be bifurcated from the remaining claim against Mr. Elliott in an expeditious and cost-effective manner. Given the nature of the remaining claim for damages for assault and battery against Mr. Elliott, any risk of inconsistent findings was immaterial. [13] For these reasons, the appeal is dismissed. [14] Costs to the respondents in the amount of $10,000, inclusive of disbursements and HST. “Doherty J.A.” “S.E. Pepall J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Joo v. Tran, 2021 ONCA 107 DATE:  20210218 DOCKET: C68078 Strathy C.J.O., Brown and Miller JJ.A. BETWEEN Il-Jung Joo and Hae-Sun Joo Plaintiffs (Respondents) and Hong Phat Tran and Thu Thuy Thi Dinh Defendants (Appellants) AND BETWEEN Hong Phat Tran and Thu Thuy Thi Dinh Plaintiffs by Counterclaim and Il-Jung Joo, Hae-Sun Joo, Rocky Chow, Living Realty Inc., Brokerage, Bonnie Wan and Daniel Wan Defendants by Counterclaim Domenic Saverino, for the appellants Jonathan M. Friedman, for the respondents Heard: February 11, 2021 by video conference On appeal from the judgment of Justice Gregory M. Mulligan of the Superior Court of Justice, dated January 23, 2020, with reasons reported at 2020 ONSC 806. REASONS FOR DECISION [1] The appellant purchasers entered into an agreement of purchase and sale (“APS”) with the respondent vendors to purchase the respondents’ home for $2.1 million. The respondents accepted the offer on April 30, 2017. [2] Through para. 10 of the standard form agreement, the vendors warranted that the property was free from all encumbrances, save and except for minor utility easements and other enumerated exceptions. Schedule A to the APS added a term stating that the vendors would discharge any encumbrances on or before closing, either through sale proceeds or by way of solicitor’s undertaking. Schedule A did not include the express qualification contained in para. 10, which excluded minor utility easements. [3] On May 4, 2017, the APS was amended by the addition of Schedule C, which contained a building survey showing four easements registered against the property. Three of these were utility easements concerning electricity and telecommunications. A fourth notation was granted to a municipality and concerned water mains, sanitary sewers, and stormwater drains. [4] On August 14, 2017, the appellants took the position that the respondents had failed to disclose easements of “material significance”. On August 31, 2017, the appellants requisitioned their removal. The respondents refused, on the basis that the easements were expressly contemplated by para. 10 of the APS. The appellants refused to close. [5] The respondents subsequently resold the property at a substantial loss. They brought an action for breach of contract and were granted summary judgment in the amount of $430,000. [6] On appeal, the appellants argue that the motion judge erred by: (1) not finding that Schedule A imposed an unqualified duty on the vendor to provide clear title; (2) finding the appellants were not entitled to terminate the APS despite the respondents’ failure to remove the easements; (3) finding the easements were minor rather than material; and (4) resolving the main dispute on a motion for summary judgment. [7] We do not agree that the motion judge erred in any respect. [8] There was no evidence that the easements would actually interfere with the use or enjoyment of the property. [9] The appellants’ argument on appeal is that the respondents were obligated to discharge all easements, come what may, regardless of whether such an obligation was possible to fulfill or would make any commercial sense if it were. The appellants do not explain how the respondents could have discharged the easements, what the practical consequences would be for the appellants or the residents of any neighbouring properties, or how it would make commercial sense for a vendor of a residential property to remove electricity, water, and sewer services prior to conveying title. In response to the apparent absurdity of this position, the appellants fall back on the argument that, absurd or not, this was the agreement that the respondents made. [10] The motion judge did not accept the appellants’ characterization of the APS as requiring the vendors to discharge standard easements. Although para. 26 of the APS required that in the event of conflict between an added provision and a standard provision, the added provision would supersede, the motion judge did not read para. 10 and Schedule A as being in conflict. The purpose of Schedule A, on the reading of the motion judge, was not to modify the obligations contained in para. 10, but to allow the obligations in para. 10 to be fulfilled by way of solicitor’s undertaking. Not only was this interpretation available to the motion judge, the alternative reading proposed by the appellants would have resulted in absurdity. [11] We do not see any reviewable error in the motion judge’s interpretation of the APS. DISPOSITION [12] The appeal is dismissed. Costs are awarded to the respondents in the amount of $10,870, 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: Kaminski (Re), 2021 ONCA 220 DATE: 20210409 DOCKET: C68713 Hourigan, Zarnett and Coroza JJ.A. IN THE MATTER OF: Michael Kaminski AN APPEAL UNDER PART XX.1 OF THE CODE Daniel Medd, for the appellant Madeline Lisus, for the respondent, Attorney General of Ontario Leisha Senko, for the respondent, Person in Charge of the Centre for Addiction and Mental Health Heard: April 1, 2021 by video conference On appeal from the disposition of the Ontario Review Board dated July 7, 2020, with reasons dated September 14, 2020. REASONS FOR DECISION OVERVIEW [1] The appellant appeals from the disposition of the Ontario Review Board (the “Board”) continuing his conditional discharge. He submits that the Board misapplied the significant threat test and that its decision was otherwise unreasonable. He contends that the Board should have granted him an absolute discharge. For the following reasons, we dismiss the appeal. BACKGROUND [2] On January 26, 2016, the appellant was found not criminally responsible on account of mental disorder (“NCRMD”) on charges of criminal harassment and failure to comply with a condition of judicial release. The index offences arose out of the appellant’s fixation on his art schoolteacher, fueled by auditory hallucinations and delusional thoughts symptomatic of his diagnosis of schizophrenia. [3] The disposition under appeal continues a positive trend of increased liberty for the appellant. Following the appellant’s initial Board hearing, he was ordered detained within a secure unit at the Centre for Addiction and Mental Health. At the appellant’s first annual review hearing, the Board agreed with the parties’ joint position that the appellant posed a significant risk and crafted a detention order with privileges including community living. After the appellant’s second annual hearing, the Board continued his detention order with community living privileges. At the appellant’s third annual hearing, the Board imposed a conditional discharge with a condition that the appellant live with his parents and report every two weeks. This disposition was based on a joint request by the parties. [4] At the appellant’s latest hearing, the evidence before the Board included: the hospital’s report; the testimony of Dr. Darby, a forensic consultant; and the appellant’s testimony. Aspects of this evidence were positive, including how the appellant had successfully obtained full-time employment. [5] However, the evidence also demonstrated that the appellant continued to have limited insight into his mental illness, his need for medication, and the index offences. Dr. Darby explained that the clinical team’s unanimous opinion was that the appellant continued to pose a significant threat to public safety. These concerns were reflected in the appellant’s testimony that he wanted to find a psychiatrist who might discontinue his medication to determine whether he could live without it. He also believed that his mental illness was not permanent. [6] The Board found that the appellant continued to pose a significant threat to the safety of the public. The Board continued his conditional discharge, while decreasing the reporting period and removing the residence requirement. In reaching their conclusion, the Board emphasized their concerns about the appellant’s lack of insight into his illness and need for medication; the appellant’s plan to find a psychiatrist he could experiment with were he no longer under the Board’s jurisdiction; and the opinions of Dr. Darby and the appellant’s clinical team. ANALYSIS [7] Considerable deference is owed to the Board’s determination on whether an NCRMD accused is a significant threat to the safety of the public: Wall (Re) , 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 21; Abdulle (Re) , 2020 ONCA 698, at para. 15. The appellant argues that the Board did not clearly explain what evidence in the record led it to conclude that the appellant posed a significant threat. A significant threat to the safety of the public means that there exists a foreseeable and substantial risk of serious physical or psychological harm to individuals in the community: Marmolejo (Re) , 2021 ONCA 130, at para. 37; Marchese (Re) , 2018 ONCA 307, 359 C.C.C. (3d) 408, at para. 9. [8] In our view, the Board’s decision is based on an internally coherent, rational chain of analysis and is justified in relation to the facts and the law: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 85. The Board explained why it believed the appellant posed a significant threat at paras. 44 and 45 of its reasons. This determination was based upon, among other things, the evidence of Dr. Darby, the opinion of the clinical team, the gravity of harm arising from the index offences, and the likelihood of similarly serious harm occurring in the future. The Board explained that these concerns stemmed primarily from the appellant’s lack of insight into his own condition and need for medication, as well as his desire to engage a community psychiatrist who would eventually permit him to discontinue medication. We see no basis to interfere with the Board’s conclusion that the appellant’s plans were not realistic and would result in significant decompensation, creating a significant risk to members of the public. The Board’s decision to continue the appellant’s conditional discharge, while removing the residence requirement and decreasing the reporting obligation, was reasonable. DISPOSITION [9] The appeal is dismissed. “C.W. Hourigan J.A.” “B. Zarnett J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kaynes v. BP p.l.c., 2021 ONCA 36 DATE: 20210120 DOCKET: C67782 Feldman, van Rensburg and Thorburn JJ.A. BETWEEN Peter Kaynes Appellant (Plaintiff) and BP p.l.c. Respondent (Defendant) Eli Karp and Hadi Davarinia, for the appellant Laura K. Fric, Kevin O’Brien and Karin Sachar, for the respondent Heard: July 16, 2020, by video conference On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated November 8, 2019, with reasons reported at 2019 ONSC 6464. Feldman J.A.: [1] The appellant has been attempting to bring a Canadian class action against the respondent BP p.l.c. (“BP”) on behalf of Canadian shareholders, based on securities misrepresentations BP made about the safety of its drilling operations in the Gulf of Mexico prior to the Deepwater Horizon explosion in 2010. The appellant has faced numerous procedural and jurisdictional roadblocks. This appeal is from an order that strikes out the latest amendment to his statement of claim and essentially ends the litigation. [2] The appellant’s 2019 amendment, which claims fraudulent misrepresentation for the first time, was struck out as statute-barred pursuant to the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B, on a motion by BP under r. 21.01(1)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. As a consequence, the appellant became disqualified as a representative plaintiff for the class, because the claims that remained extant and that were allowed to proceed covered a time period that did not include his claim. [3] This appeal raises two key issues: 1) what are the elements of a “claim” for fraudulent misrepresentation, within the meaning of the Limitations Act, that must be discoverable in order to commence the two-year limitation period? and 2) are there circumstances where an amendment to a statement of claim can be dismissed as statute-barred on a motion brought under r. 21.01(1)(a)? [4] For the reasons discussed below, I agree that it is plain and obvious that the appellant’s new claim for fraudulent misrepresentation is statute-barred and that it was appropriate to determine that issue on a r. 21.01(1)(a) motion, given the particular pleadings in this case. Accordingly, I would dismiss the appeal. Factual Background and Judicial History A. The Parties [5] BP is a U.K. petroleum company whose securities trade on international stock exchanges. [6] The appellant is a resident of Ontario. On or before August 12, 2008, while he was a resident of Alberta, he purchased BP shares over the New York Stock Exchange. B. The Proposed Class Action [7] This action emerged from BP’s Deepwater Horizon explosion on April 20, 2010. In broad terms, the appellant alleges that in its securities filings, BP made 14 misrepresentations about its operational safety and ability to respond to an oil disaster, which had the effect of artificially inflating its share price. Following the Deepwater Horizon explosion on April 20, 2010, BP publicly corrected these misrepresentations between April 21, 2010 and May 29, 2010, leading to a significant drop in BP’s share price. In his current statement of claim, the appellant seeks to certify a class action on behalf of Canadian residents who acquired equity securities in BP on the secondary market from February 22, 2008 to April 23, 2010. [8] The appellant has filed five different statements of claim in Canada during the life of this action: a 2012 Alberta Claim, a 2012 Ontario Claim, a 2013 Ontario Claim, a 2017 Ontario Claim and, most recently, a 2019 Ontario Claim. The important features of each Claim are discussed below. C. 2012 Alberta Claim [9] On April 20, 2012, the first iteration of this proposed class action was filed in Alberta. The appellant was a member of the proposed class and was added as a plaintiff on May 25, 2012. That claim advanced two causes of action: (1) statutory secondary market misrepresentation under Alberta’s Securities Act and (2) common law negligent misrepresentation. [10] The 2012 Alberta Claim never got off the ground. Under Alberta’s Rules of Court , leave is required to serve a defendant outside of Canada. Leave was denied on two separate occasions, September 18, 2012 and November 14, 2012, on the basis that the plaintiffs had failed to establish that the claim had a real and substantial connection to Alberta. D. 2012 Ontario Claim [11] The appellant did not appeal the November 14, 2012 Alberta court decision denying leave for service ex juris . Instead, on November 15, 2012, he commenced a similar action in Ontario that advanced two causes of action: (1) the statutory cause of action for secondary market misrepresentation provided for in Part XXIII.1, s. 138.3 of Ontario’s Securities Act , R.S.O. 1990, c. S.5, and other equivalent provincial securities legislation and (2) common law negligent misrepresentation. [12] BP challenged Ontario’s jurisdiction over this matter. E. 2013 Ontario Claim [13] On August 9, 2013, while BP’s jurisdiction challenge was pending, the appellant filed a fresh as amended statement of claim that effectively withdrew the common law negligent misrepresentation cause of action. [14] On October 9, 2013, BP’s jurisdictional challenge was initially dismissed. However, on appeal, on August 14, 2014, this court in Kaynes v. BP, PLC, 2014 ONCA 580, 122 O.R. (3d), leave to appeal refused, [2014] S.C.C.A. No. 452, allowed BP’s appeal on the basis of forum non conveniens and stayed the claim of Canadians who had purchased BP shares on foreign exchanges. Only a truncated proposed class action on behalf of shareholders who had purchased their shares on the Toronto Stock Exchange was allowed to proceed. F. Related U.S. Litigation [15] While the Ontario jurisdiction battle was ongoing, other litigation against BP was progressing in the U.S. Most significantly for the purposes of this appeal, on September 4, 2014, the District Court for the Eastern District of Louisiana held that BP had acted with conscious disregard of known risks and was primarily responsible for the oil spill and guilty of gross negligence and willful misconduct. [16] BP appealed this decision. However, on July 2, 2015, BP reached an agreement with the U.S. Department of Justice and five U.S. states to resolve nearly all claims outstanding against BP from the oil spill. Significantly, this settlement resulted in BP abandoning its appeal of the September 4, 2014 Louisiana District Court decision, which had found that BP engaged in willful misconduct. G. The Appellant Unsuccessfully Pursues Claims in the U.S. [17] In March 2015, after the Supreme Court of Canada denied the appellant’s application for leave to appeal this court’s jurisdiction decision, he commenced a proposed class action against BP in the United States District Court for the Southern District of Texas. He asserted a claim for pre-explosion misrepresentations based on Ontario’s Securities Act . [18] In response, BP moved to dismiss the appellant’s U.S. action. On September 25, 2015, the Texas Court granted BP’s motion and dismissed the appellant’s action, in part because the claim was time-barred by the three-year limitation period under Ontario’s Securities Act. [19] The appellant did not appeal that decision. Instead, on February 26, 2016, he brought a motion to lift the stay of his Canadian proceedings in Ontario. H. Ontario Stay Lifted [20] On July 29, 2016, this court in Kaynes v. BP, P.L.C. , 2016 ONCA 601, 133 O.R. (3d) 29, leave to appeal to S.C.C. refused, 36127 (January 19, 2017), granted the motion to lift the stay, expressing no view on the limitations issues. I. 2017 Ontario Claim [21] On June 7, 2017, with the stay lifted, the appellant delivered his second fresh as amended statement of claim. The 2017 Claim advanced statutory misrepresentation claims solely on the basis of Ontario’s Securities Act . While it added new misrepresentation allegations not referred to in the 2012 or 2013 Claims, it did not revive the abandoned common law negligent misrepresentation cause of action. It also added for the first time, allegations that BP knew that its misrepresentations were false when it made them. For example, the 2017 Claim reads in part (emphasis added throughout): On May 8, 2007, BP released its 2006 Sustainability Report, in which it represented that the OMS was a comprehensive Process Safety system that covered all aspects of its operations, and that it would apply to all of its operations because the OMS was the foundation for a safe, effective, and high-performing operation. BP and its executive officers, including its then-CEO, knew that these representations (i.e., the OMS Misrepresentation) were false when made because BP had no intention of applying the OMS to all of its North American operations, and therefore the OMS did not cover all aspects of BP's operations. This representation supported BP's investment quality and share price. On February 22, 2008, BP released its 2007 Annual Review, which is a core document. In the 2007 Annual Review, BP represented that with its new CEO, it was focused on three priorities: safety, people, and performance. BP further represented that it would implement the Process Safety recommendations from the Baker Report. This core document contained the OMS Misrepresentation. At the time this statement was made, BP and its new CEO knew or ought to have known that BP did not intend to implement all of the Baker Report’s recommendations, including that its “integrated and comprehensive process safety management system” (i.e. the OMS) would not be implemented at all of BP’s U.S. operations. On April 16, 2009, BP released its 2008 Sustainability Review and represented that the OMS was introduced and completed in the North America Gas, Gulf of Mexico, Columbia and the Endicott Field in Alaska. This core document contained the OMS Misrepresentation. At the time it was made, BP knew that the OMS would not apply to every BP project site and that BP had migrated only one of seven sites in the Gulf of Mexico to the OMS. This core document also contained the Omission. At the time the 2008 Sustainability Review, which touted BP's commitment to Process Safety, was released, BP and its management were well aware that a December 2008 internal strategy document had specifically identified numerous Process Safety “priority gaps” which increased the potential for and severity of Process Safety related incidents, but omitted to disclose this material fact. On February 26, 2010, BP released its 2009 Annual Review, in which it represented that its OMS provided a common framework for all of its operations and set out formatted procedures on how to manage risks at each BP site. This core document contained the OMS Misrepresentation. At the time this representation was made, BP knew that the OMS did not apply to each of BP’s sites, that the OMS did not provide a group-wide framework to identify and manage operational risks, that the OMS was not yet implemented in the Gulf of Mexico At different times during the Class Period, material facts about BP's Process Safety at the Deepwater Horizon and Macondo Well, OMS, and OSRP emerged within BP and were made known to its senior executives. BP, however, negligently or intentionally omitted these material facts from its disclosure documents. [22] In response, BP challenged the timeliness of the statutory misrepresentation claims. On September 1, 2017, Perell J. in Kaynes v. BP, P.L.C. , 2017 ONSC 5172, 74 B.L.R. (5th) 49, declared most of the misrepresentation claims statute-barred pursuant to s. 138.14 of Ontario’s Securities Act . That section creates an events-based limitation period and provides that no action for a misrepresentation shall be commenced later than three years after the date on which the misrepresentation was made. [23] On April 5, 2018, this court in Kaynes v. BP, P.L.C. , 2018 ONCA 337, 81 B.L.R. (5th) 6, dismissed the appeal from Perell J.’s decision. [24] These decisions significantly reduced the scope of the proposed class action. Originally, the appellant had sought to advance statutory claims based on misrepresentations occurring from May 9, 2007 to April 23, 2010 (1,080 days). As a result of the s. 138.14 limitation decisions, however, the appellant’s proposed class period was reduced to February 27, 2010 to April 23, 2010 (55 days). Since the appellant acquired his BP shares on or before August 12, 2008, his personal statutory claims were all statute-barred. J. 2019 Ontario Claim [25] The appellant delivered another amended statement of claim on September 4, 2019. This 2019 Claim is the first Claim to expressly advance a cause of action for fraudulent misrepresentation. The 2019 Claim repeats the 14 alleged misrepresentations made by BP between May 2007 and April 2010, but further pleads that some of the misrepresentations were made by BP with “knowledge of the falsities contained therein or with a reckless disregard to learning the accuracy of the representation” . It also added an “Appendix A” with particulars of the fraudulent misrepresentation allegations. K. BP Challenges the Timeliness of the Fraudulent Misrepresentation Claim [26] The order under appeal was made on BP’s motion under r. 21.01(1)(a) for an order declaring the fraudulent misrepresentation claims statute-barred pursuant to the Limitations Act . In the alternative, BP requested that the pleadings be struck as an abuse of process. BP also sought to dismiss the balance of the appellant’s action because his claims fell outside the class period and no suitable representative plaintiff had been proposed. [27] The appellant resisted the motion on two bases. Procedurally, he argued that a limitations issue cannot be determined on a r. 21.01(1)(a) motion when discoverability is in issue. Substantively, he submitted that it was not plain and obvious that his claim was statute-barred. L. Motion Judge’s Decision [28] The motion judge granted BP’s motion and dismissed the action. He held that all common law misrepresentation claims, whether negligent or fraudulent, were discovered when BP made corrective disclosures between March and June 2010. By that time, the appellant had discovered that he had suffered a loss due to an act of misrepresentation by BP and that a proceeding was an appropriate way to seek a remedy. Therefore, the Ontario action that was brought in November 2012 was commenced too late to advance those claims. [29] Alternatively, the motion judge found that the appellant would have discovered BP’s fraudulent intent in 2010 when Canadians and Americans in the U.S. were advancing claims based on scienter – that is, that BP had fraudulently misrepresented its securities to secondary market purchasers. Scienter was a necessary component of such claims and had to be asserted in order to bring them. [1] The motion judge concluded from the existence of such actions in the U.S. courts that “[b]y 2010, a reasonable person with the abilities and in the circumstances of Mr. Kaynes would have discovered that his cause of action in fraudulent misrepresentation had accrued and that having regard to the nature of the injury, loss or damage, a proceeding would be [] appropriate.” [30] The motion judge rejected the appellant’s position that the fraudulent misrepresentation claim in the 2019 amended statement of claim was an alternative theory of liability arising from facts he had asserted in his prior pleadings, including the 2017 amended statement of claim, rather than a new cause of action. The motion judge found that “ the essential material facts of the fraudulent misrepresentation claim were not pleaded in the earlier pleadings.” [31] Finally, the motion judge was satisfied that in the circumstances of this case, it was appropriate to determine the limitation issue on a r. 21.01(1)(a) motion. He agreed with the appellant that only in the rarest of cases should a court rule on a limitation issue before a statement of defence is filed, since it is possible that the plaintiff could assert additional facts in the statement of claim or reply that would alter the conclusion that a limitation period had expired. Nevertheless, he held that he could determine the limitation issue in this case under the exception articulated by this court in Beardsley v. Ontario (2001), 57 O.R. (3d) 1 (C.A.) which held, at para. 21, that a limitation issue can be decided under r. 21.01(1)(a) before a statement of defence is filed “where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired.” Issues [32] This appeal raises four issues: 1. Did the motion judge err by finding that the common law claims for negligent and fraudulent misrepresentation were discoverable by June 2010, once BP effectively acknowledged through its corrective disclosure that its statements contained misrepresentations? Or, is one of the factual elements of a claim for fraudulent misrepresentation that a plaintiff must have discovered under s. 5(1)(a) of the Limitations Act , the fact that the defendant knew that the misrepresentation was false? 2. Did the motion judge err by finding that because of allegations of scienter in the U.S. actions, it was plain and obvious that the appellant knew or ought reasonably to have known that he had a claim in fraudulent misrepresentation more than two years before the 2019 amendment? 3. Did the motion judge err by failing to find that the effect of pleading in 2017 that BP knew its representations were false when it made them, was to make the appellant’s pleading of fraudulent misrepresentation in the 2019 amendment merely a request for a new remedy but not a new claim that was statute-barred? 4. Did the motion judge err by proceeding on a motion under r. 21.01(1)(a) to decide a limitation issue? [33] As I will expand on below, I would answer these questions as follows: 1. The motion judge erred in his discovery analysis. A claim for fraudulent misrepresentation is only discovered under s. 5 of the Limitations Act if the plaintiff knows, or ought to have known, that the defendant knew that the misrepresentation was false. 2. In the context of this motion, the motion judge improperly relied on U.S. scienter pleadings to make a factual finding about discoverability. 3. The fraudulent misrepresentation claim in the 2019 amended statement of claim is a new, statute-barred claim. 4. The motion judge did not err in deciding the limitations issue in this case under a r. 21.01(1)(a) motion because, due to the particular pleadings of this case, there were no disputed material facts at issue. Analysis A. Standard of Review [34] As this is an appeal from an order on a r. 21.01(1)(a) motion, I agree with both parties’ positions that the standard of review requires this court to determine whether the motion judge was correct to find that the appellant’s claim for fraudulent misrepresentation in its 2019 amended statement of claim is statute-barred. Issue 1: Is one of the elements of a claim for fraudulent misrepresentation that a plaintiff must have discovered under s. 5(1)(a) of the Limitations Act , the fact that the defendant knew that the misrepresentation was false? I. The Limitation Period Runs From the Date a “Claim” is Discovered [35] Under s. 4 of the Limitations Act , a proceeding may not be commenced more than two years after the claim is discovered. A claim is defined in s. 1 as: a claim to remedy an injury, loss or damage that occurred as a result of an act or omission. [36] Under s. 5(1)(a) of the Limitations Act, a claim is discovered when the person first knew (or reasonably ought to have known) the following four elements: (i) the occurrence of the injury, loss or damage, (ii) that it was caused by or contributed to by an act or omission, (iii) that the act or omission was by the defendant, and (iv) based on the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek a remedy. Under s. 2(1), the Limitations Act applies to “claims pursued in court proceedings.” [37] As a number of commentators and judges have discussed, unlike the former Limitations Act , R.S.O. 1990, c. L.15, the current Limitations Act does not refer to a cause of action as the starting point for the commencement of the limitation period. Rather, the commencement of the limitation period is based on the discoverability of a “claim”, and a claim is discovered when the plaintiff discovers the generic elements of a claim that are set out in s. 5(1)(a), or reasonably ought to have discovered them (s. 5(1)(b)): see, for example: Hare v. Hare (2006) , 83 O.R. (3d) 766 (C.A.), at para. 29, per Gillese J.A., and paras. 61, 75, per Juriansz J.A., dissenting; Placzek v. Green, 2009 ONCA 83, 307 D.L.R. (4th) 441, at para. 25; Apotex Inc. v. Nordion (Canada) Inc. , 2019 ONCA 23, 431 D.L.R. (4th) 262, at paras. 84-86; Daniel Zacks, “Claims, Not Causes of Action: The Misapprehension of Limitations Principles” (2018) 48 Adv. Q. 168; Stephen Cavanagh, “‘Appropriate means’ in s. 5(1)(a)(iv) of the Limitations Act, 2002 ” (2019) 39th Annual Civil Litigation Conference. [38] Nevertheless, numerous Ontario judgments that have considered when a claim is discovered under the Limitations Act have done so with reference to when the cause of action arose. See, for example: Hamilton (City) v. Metcalfe & Mansfield Capital Corp. , 2012 ONCA 156, 290 O.A.C. 42, at paras. 14, 35; Liu v. Wong , 2016 ONCA 366, at paras. 7-8, leave to appeal refused, [2016] S.C.C.A. No. 264; Colin v. Tan , 2016 ONSC 1187, 81 C.P.C. (7th) 130, at para. 63; Unicorr Limited v. Minuk Construction & Engineering Limited , 2016 ONSC 7350, 82 R.P.R. (5th) 47, at para. 69, aff’d 2017 ONCA 757; T.W. Marsh Well Drilling & Service Inc. v. Ashburn , 2017 ONSC 2531 (Div. Ct.), at para. 14. Academic treatises have done the same. For example, in the authoritative text, The Law of Limitations , the authors treat “claim” as encompassing a cause of action: Justice Graeme Mew, Debra Rolph & Daniel Zacks, The Law of Limitations , 3rd ed. (Toronto: LexisNexis, 2016). At § 3.2-3.3 they state: Traditionally, a cause of action accrued and hence, a limitation period started to run, when all of the elements of a wrong existed, such that an action could be brought. The commencement was expressed in terms of the accrual of the cause of action, but has recently been modified in many cases to instead reflect the time when a claim was first discovered by the person with the claim, i.e. , when a plaintiff became aware of the cause of action and remedy available. [39] Additionally, in the discussion of discoverability principles under s. 5 of the Limitations Act , at § 3.107, the authors state: “Another issue that arises is whether section 5 applies to all causes of action, or just to those governed by the basic limitation period.” [40] I agree that the Limitation Act ’s introduction of discovery of a “claim” as the triggering mechanism for the commencement of the limitation period has not done away with any role for causes of action. As I will explain, under s. 5(1)(a)(ii) of the Limitations Act , one of the matters that is required for the discovery of a “claim” is: “that the injury, loss or damage was caused by or contributed to by an act or omission ” (emphasis added). Because a claim necessarily involves seeking a legal remedy in a court proceeding, the act or omission that must be discovered is one that will give rise to a legal remedy, i.e. , a cause of action. In the case of a fraudulent misrepresentation, the act or omission is a knowing misrepresentation. II. The Significance of the Removal of “Cause of Action” [41] The Supreme Court of Canada introduced the general applicability of discoverability for limitation purposes into the interpretation and application of limitation statutes in its decisions in Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2 and Central & Eastern Trust Co. v. Rafuse , [1986] 2 S.C.R. 147. The common law discoverability rule provided that a plaintiff’s cause of action would be discovered for the purposes of a limitation period when “ the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”: Rafuse , at p. 224. The rule was developed to avoid the injustice of precluding an action before a person is able to raise it: Peixeiro v. Haberman , [1997] 3 S.C.R. 549, at para. 36. [2] [42] Ontario’s new Limitations Act makes discoverability a statutory requirement. It incorporates discoverability into the date for commencement of the limitation period, but refers to the discoverability of a “claim” rather than a cause of action, based on the recommendation of the Limitations Act Consultation Group to the Attorney General contained in Recommendations for a New Limitations Act (Toronto: Ministry of the Attorney General of Ontario, 1991). The report explains the proposed change as follows, at p. 17: The term claim is used throughout the recommendations in place of “cause of action” primarily to mark the departure from a limitations system where different causes of action are subject to different starting points and periods of different duration. Otherwise, “claim” is not substantially different from “cause of action”. [43] Accordingly, there is nothing in the Consultation Group’s report that demands treating “claim” for limitations purposes as unconnected to a plaintiff’s particular cause of action. Indeed, attempting to do so would fit uncomfortably with basic civil procedure, as causes of action have not become extinct for pleading purposes. A pleading may be struck out if it discloses “no reasonable cause of action”: r. 21.01(1)(b). [44] It seems to me therefore, that the first issue is what is the relationship between discovering a claim for the purposes of the Limitations Act , and having the factual information necessary to assert a cause of action in an originating pleading? Does a person who seeks to commence a timely proceeding for a claim to obtain a remedy based on a legal right to seek that remedy, i.e. a cause of action, need to have discovered facts to substantiate each element of the particular cause of action in order to have discovered their claim to a remedy, within the meaning of the Limitations Act ? In my view, the answer is yes. [45] An examination of the language used in r. 25.06, the rule that governs the contents of a pleading, is instructive. Instead of using cause of action as in r. 21.01(1)(b), r. 25.06 uses “claim”, a term not defined in the Rules of Civil Procedure , and defence. Rule 25.06(1) requires a pleading to contain “the material facts on which the party relies for the claim or defence”. And, where conditions of mind such as fraud and misrepresentation are alleged, r. 25.06(8) requires that full particulars must be pleaded except that knowledge may be alleged as a fact. [46] Therefore, while the rule uses the term claim, the contents of a proper initiating pleading asserting a claim for a remedy contemplated by the rule will include the legal elements to support a claim, i.e. , a cause of action. [47] Similarly, while the Limitations Act no longer uses the term cause of action, for the reason explained by the Attorney General’s Consultation Group, both the definition of claim and the components listed in s. 5(1)(a) that have to be discovered before the limitation period commences to run in respect of a claim, still require the discovery of the elements of a cause of action that will give rise to a legal remedy. [48] I refer, in particular, to the definition of claim, which is defined to mean a claim to remedy an injury, loss or damage resulting from an act or omission , and the requirement in s. 5(1)(a)(ii) to discover the act or omission as one of the discoverability elements. Because only a wrongful act or omission gives the affected person the right to a remedy in a court proceeding, discovery of the act or omission must include discovery of the wrongful aspect of it that gives rise to the legal right to the particular remedy being claimed. And under s. 5(1)(a)(iv), for the limitation period to commence, a proceeding must be an appropriate means to seek a remedy. That will only be the case when the claimant is able to plead a cause of action that gives rise to a remedy. [49] The fact that the act or omission must be wrongful is confirmed by the language of s. 18(1) that deals with contribution and indemnity, where the defendant of a claim is referred to as an “alleged wrongdoer”. That section provides: 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. [50] All of the above indicates that, although the Limitations Act no longer uses the term “cause of action”, the purpose of removing that language was to signal a departure from establishing different limitation periods for different causes of action, but not to undermine the basic structure of the civil procedure process, where a proceeding to obtain a remedy at law must include all of the components of the cause of action that would entitle the claimant to that remedy. The Limitations Act and the Rules of Civil Procedure must work harmoniously together. It would have taken clear and explicit language to indicate that the Legislature intended otherwise. There is no such language in the Limitations Act , nor would there be any purpose in doing so. [51] In my view, the focus of the analysis should not be on the removal of the specific reference to a cause of action, but instead, on the purpose of introducing the claim concept. That concept includes the definition of claim as well as the four discoverability components. The Legislature introduced the concept of a claim in the Limitations Act to provide a universal framework for discoverability that transcends the requirements for particular causes of action. The introduction of this concept, however, did not make the particular causes of action pursued in a legal proceeding irrelevant for the s. 5 discovery analysis. [52] To that end, in addition to an act or omission that will give rise to a remedy, for limitations purposes, the Limitations Act also requires that certain common factors must be discovered before the limitation period will begin to run, even though all of those factors may not be required to establish any particular cause of action and the right to a remedy for that cause of action. [53] For example, the most significant common factor for a claim is loss or damage. Consequently, for causes of action such as breach of contract where loss or damage is not required, no claim arises for limitation purposes and the limitation period does not commence until loss or damage is suffered and the person discovers that they suffered loss or damage: see, for example, Apotex Inc. , at paras. 84-86. That does not mean, however, that a plaintiff is precluded from issuing a statement of claim for breach of contract before suffering damage, because for pleading purposes, the cause of action does not require damage. [54] The other new significant common factor for discovery of a claim is in s. 5(1)(a)(iv), which states: that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. [55] This is another extra component for the discovery of a claim that is not part of any cause of action. [56] Of course, it is always a question of fact at what point a claimant had or ought to have had sufficient knowledge of each of the factors to trigger the commencement of the limitation period. The claimant need not know to a certainty that the defendant will be found liable – that is the issue to be determined by the trier of fact. As this court stated in Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 23: Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run : see Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 132 O.A.C. 304 (C.A.). [3] [57] In summary, the Limitations Act uses the discovery of a claim as the triggering mechanism for the commencement of the limitation period. Discovery of a claim includes components that may not be requirements of any particular cause of action, such as injury, loss or damage (s. 5(1)(a)(i)), and that having regard to the nature of the injury loss or damage, a proceeding would be an appropriate means to remedy it (s. 5(1)(a)(iv)). [58] However, the second component, that the injury loss or damage was caused by an act or omission (s. 5(1)(a)(ii)), read together with the definition of claim, which is a claim to remedy the injury, loss or damage that occurred as a result of the act or omission (s. 1), and with the requirement that the claim must be pursued in a court proceeding (s. 2(1)), incorporates the requirement for a legally recognized basis to make the claim, known as a cause of action. III. Application of Principles [59] For fraudulent misrepresentation, the act or omission that the claimant must discover is that the misstatement that caused the damage was made with knowledge that the representation was false, an absence of belief in its truth or recklessness as to its truth: Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, 135 O.R. (3d) 481, at para. 162, leave to appeal refused, [2017] S.C.C.A. No. 246. [4] [60] In this case, the amended pleading in 2019 added a claim for fraudulent misrepresentation. Relying on the same 14 misstatements by BP that formed the basis of the original negligent misrepresentation claim and the statutory misrepresentation claim, the 2019 amendment claimed that documents were released by BP “with knowledge of the falsities contained therein or with a reckless disregard to learning the accuracy of the representation”. For the first time the appellant claimed damages based on fraud. [61] The motion judge found that the claim for fraudulent misrepresentation was statute-barred. He based his conclusion on the following analysis: [A]round June 1, 2010, presumptively and also subjectively and objectively factually, Mr. Kaynes discovered he had a “claim” against BP. He subjectively knew that [BP’s] misconduct had caused him harm and he knew that court proceedings would be appropriate. For the purpose of the commencement of limitation periods, it was not necessary for Mr. Kaynes to put a cause of action name to his “claim”. Whatever way the statement of claim was later framed to name a cause of action, the “claim” to which the cause of action was connected had been discovered in 2010 and the limitation period clock was running. In other words, having discovered a “claim” in 2010, Mr. Kaynes had two years to plead the misconduct connected to the claim by pleading the material facts of negligence, negligent misrepresentation, fraudulent, misrepresentation, an oppression remedy, nuisance, or whatever. For the purpose of commencing a proceeding, however he might label his claim as a cause of action in a statement of claim, the limitation period for the “claim” was running by June 1, 2010. As it happened, albeit late, in November 2012, Mr. Kaynes pleaded a cause of action for negligent misrepresentation in Ontario, and he gave his claim a cause of action name, but regardless of its name in accordance with the principles of the Limitations Act, 2002 , the negligent misrepresentation claim was already statute barred. A fraudulent misrepresentation claim had it been pleaded in November 2012 in Ontario would also have been statute barred. [62] From this passage, it appears that the motion judge’s analysis is that by 2010 the appellant had discovered all of his misrepresentation claims for the purposes of the Limitations Act , because he knew then that BP had made false statements. He characterized fraudulent and negligent misrepresentation claims as merely different labels that would apply to the appellant’s claim based on the same material facts. [63] I would reject this analysis of the operation of the Limitations Act in respect of a claim for fraudulent misrepresentation as an error of law. In my view, the defendant’s knowledge that the misrepresentation was false, or at a minimum, its recklessness as to whether the misrepresentation was false, is a relevant material fact underlying any claim for fraudulent misrepresentation. If the motion judge’s approach were correct, it would mean in the case of a misrepresentation, that the claimant would be required to commence an action alleging fraud within two years of the misrepresentation, whether or not he knew or ought reasonably to have known of the defendant’s fraudulent intent, in order to preserve the limitation period for fraudulent misrepresentation. Of course, as well as being non-compliant with the pleadings rule, such a requirement would fly in the face of the well-established common law principle that a party must only plead fraud when they can substantiate the claim, or risk an award of substantial indemnity costs: Unisys Canada Inc. v. York Three Associates Inc. (2001), 150 O.A.C. 49 (C.A.), at para. 15; Catford v. Catford , 2013 ONCA 58, at para. 4. IV. Conclusion: Issue 1 [64] In summary, under s. 5(1)(a)(ii) of the Limitations Act , one of the matters that is required for the discovery of a “claim” is: “that the injury, loss or damage was caused by or contributed to by an act or omission ” (emphasis added). Because a claim necessarily involves a legal remedy, the act or omission that must be discovered is one that will give rise to a legal remedy, i.e. , a cause of action. [65] Therefore, in the case of a fraudulent misrepresentation, the act or omission is a knowing misrepresentation. It would make no sense to require a person to commence an action for fraudulent misrepresentation without the legal basis for doing so, in order to preserve the limitation period. That is neither the intent nor the effect of the Limitations Act . The motion judge erred by concluding otherwise. Issue 2: Did the motion judge err by finding that because of allegations of scienter in the U.S. actions it was plain and obvious that the appellant knew or ought reasonably to have known that he had a claim in fraudulent misrepresentation more than two years before the 2019 amendment? [66] The motion judge found, effectively in the alternative, that in any event, the appellant had discovered that BP knew its misstatements were false by 2010. The motion judge reasoned that because of related litigation in the U.S., where an action for misstatements in the securities disclosure context requires a pleading of “ scienter ”, i.e., knowing falsehood, that based on the pleading of “ scienter ”, the appellant ought to have known that BP knew its misrepresentations were false. [67] I agree with the appellant that this factual finding was not available to the motion judge on this r. 21.01(1)(a) motion. In the face of the “ scienter ” pleading, which was a requirement of the action in the U.S. actions, BP continued to deny knowledge until July 2015. The scienter pleading on its face was not determinative of the knowledge issue. A factual inquiry was required. It was not open to the motion judge to make that factual finding in the context of this motion, because there would be an issue whether a reasonable person in the appellant’s position ought to have known about BP’s fraud more than two years before he pleaded fraud, based on the U.S. pleading or other available information that the US plaintiffs may have had when they pleaded scienter . Issue 3: Was the fraudulent misrepresentation claim in the 2019 amended statement of claim merely a claim for a new remedy based on facts already pleaded in the 2017 amended statement of claim and therefore not out of time? [68] The appellant only expressly sought a remedy for fraudulent misrepresentation in his 2019 amended statement of claim. Nevertheless, he submits that the fraud claim is timely because his 2019 pleading of fraud is not a new claim but an alternative theory of liability based on facts pleaded in prior statements of claim, particularly in the 2017 amendment, filed June 7, 2017. [69] In the 2017 amendment (which asserted only a claim for statutory misrepresentation), the appellant added some factual allegations, including that BP made the misrepresentations knowing they were false. He says that these additional allegations were timely in 2017 because they were pleaded within two years of his discovery of BP’s fraud on July 2, 2015, the date BP settled a number of actions in the U.S. and abandoned an appeal from a decision which found that BP had acted with “conscious disregard of known risks” and was guilty of gross negligence and willful misconduct. [70] Even though the appellant did not add a claim of fraud or seek a remedy for fraudulent misrepresentation in the 2017 amended pleading, he submits that because he had already pleaded the element of knowledge of the fraud in the 2017 amendment in a timely fashion, the claim based on fraud in the 2019 amendment is not a new claim within the meaning of the Limitations Act , and it is not out of time. [71] I would not give effect to this argument. The 2017 amended pleading states at para. 3 that the action seeks damages pursuant to ss. 138.3(1)(a) and 138.3(2)(a) of Ontario’s Securities Act. While the 2017 amended statement of claim pleaded in various paragraphs that BP “knew” or was “aware of” certain facts, the pleading of knowledge was entirely in the context of the statutory claims that were asserted in that pleading. Moreover, the 2017 amended claim does not plead all of the necessary material facts for a common law fraudulent misrepresentation claim, including reliance. [72] The 2019 pleading claiming fraudulent misrepresentation is not simply an alternative theory of liability based on the same facts, or a claim for different relief based on the same factual matrix as what is pleaded in the 2017 amended claim. It is not a different or new legal characterization of the same wrong as the claim for statutory misrepresentation. This is underscored by his amendment to para. 3 which, after referring to the statutory claims asserted in the action states that the appellant “also advances a claim for common law fraud”. Rather, it asserts a “fundamentally different claim”: see 1100997 Ontario Ltd. v. North Elgin Centre Inc. , 2016 ONCA 848, 409 D.L.R. (4th) 382, at paras. 20-21, 36. [73] I would therefore reject this ground of appeal. Issue 4: Did the motion judge err by proceeding on a motion under r. 21.01(1)(a) of the Rules of Civil Procedure to determine whether a claim was statute-barred? [74] There are a number of decisions of this court, decided since the enactment of the Limitations Act , that suggest that discoverability issues should rarely, if ever, be decided on a motion under r. 21.01(1)(a) unless pleadings are closed and the facts are undisputed: see: Beardsley , at para. 21; Tran v. University of Western Ontario, 2016 ONCA 978, 410 D.L.R. (4th) 527, at paras. 18-21; Salewski v. Lalonde , 2017 ONCA 515, 137 O.R. (3d) 762, at paras. 42-45; Clark v. Ontario (Attorney General) , 2019 ONCA 311, 56 C.C.L.T. (4th) 1, at paras. 42, 46-48, leave to appeal to S.C.C. granted and appeal heard (on other issues) and reserved October 15, 2020, 38687. [75] In this proposed class action proceeding, BP has not yet delivered a statement of defence because it is not required to do so until the appellant has obtained leave to assert his statutory claim under Part XXIII.1 of Ontario’s Securities Act : see: Vaeth v. North American Palladium Ltd. , 2016 ONSC 5015, at paras. 13-15. Therefore, pleadings are not closed. [76] While r. 21.01(1)(a) refers to the determination of a question of law, where the facts regarding discovery of the claim are undisputed so that the determination of the issue is “plain and obvious”, then whether the action is statute-barred is considered a question of law that can be determined on a r. 21.01(1)(a) motion. [77] A recent example of this is an earlier appeal decision in this action, Kaynes v. BP, P.L.C., 2018 ONCA 337, 81 B.L.R. (5th) 6, where the court found that it was plain and obvious that some of the statutory claims, where the limitation period runs from the date the misrepresentation was made, were statute-barred. One of the arguments on that appeal was the same one made here, that the issue should not be decided on a r. 21 motion before a defence is filed and the facts are ascertained. In rejecting that submission, the court stated at para. 13: The appellant submits that this case was not appropriate for determination as a Rule 21 motion. We disagree. In a case such as this where the parties agree that there are no material facts in dispute, it is an efficient use of court resources to determine limitations defences on a Rule 21 motion. [78] Two other recent cases have discussed and applied the “no facts in issue” exception to the rule. In Davidoff v. Sobeys Ontario , 2019 ONCA 684, leave to appeal to S.C.C. refused, 38953 (April 9, 2020), the plaintiff issued a statement of claim on November 1, 2017, seeking to sue Sobeys Ontario for wrongful dismissal. Both parties agreed that the claim was discoverable by the date of the plaintiff’s termination of employment – October 6, 2015 – which made the claim presumptively statute-barred. The plaintiff argued, however, that a letter he had mailed to Sobeys and its legal counsel on September 29, 2017 was a notice of action, and therefore the action was timely. [79] After concluding that the letter did not constitute a notice of action, the court found that the limitation issue could be determined under r. 21.01(1)(a), since both parties agreed on the date that the claim became discoverable. Because the date of discovery was not in issue, the court applied the above-quoted reasoning from Kaynes v. BP, P.L.C. (2018). [80] The other recent decision is Brozmanova v. Tarshis , 2018 ONCA 523, 81 C.C.L.I. (5th) 1, where the plaintiff’s claim pleaded the date when she learned about the fraudulent conduct of the defendant that was the subject of the claim. In that case, a statement of defence had been filed that challenged factual assertions in the statement of claim. The court suggested that a motion for summary judgment under r. 20 might have been the preferable procedure to use because the parties had joined issue on disputed facts. However, because the date of discovery of the claim was not one of the disputed facts, it was not improper for the defendant to have moved under r. 21.01(1)(a) to strike the claim as statute-barred. [81] 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 that 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. [82] Applying these principles to this case, the appellant pleaded in the 2019 draft reply document that it filed on the motion, a number of alternative dates which it says revealed that BP’s misconduct was fraudulent. The latest event date that the draft reply identifies is July 2, 2015, when BP settled a number of actions in the U.S. and abandoned an appeal of a decision that found that it had acted with “conscious disregard of known risks”. The appellant pleaded that up until that date, BP had fraudulently concealed that its misstatements were made knowingly between 2008 and 2010. By pleading this fact, the appellant has conceded the latest date when it discovered or reasonably could have discovered BP’s fraudulent conduct was July 2, 2015, more than two years before the 2019 amended statement of claim. [83] Finally, the appellant’s alternative pleading in his 2019 draft reply, that BP “fraudulently concealed the fraudulent nature of the misrepresentation alleged until less than two years prior to the new amendments in September of 2019” does not alter this result. Nothing further is pleaded to support this conclusory statement. In Das v. George Weston Limited , 2018 ONCA 1053, 43 E.T.R. (4th), leave to appeal refused, [2019] S.C.C.A. No. 69, this court explained, at para. 74, that “ while the material facts that are pleaded in the statement of claim are assumed to be true for purposes of a motion to strike, bald conclusory statements of fact and allegations of legal conclusions unsupported by material facts are not.” The motion judge was not bound to accept the appellant’s position that this fraud claim was only discovered in the preceding two years, since that position was pleaded without the support of any material facts. [84] Accordingly, as the July 2015 date is not in dispute, it is plain and obvious that the appellant’s claim for fraudulent misrepresentation in the 2019 amended statement of claim is out of time and statute-barred. On that basis, I agree with the conclusion of the motion judge that the issue can be determined on a r. 21.01(1)(a) motion, and that the 2019 amended claim must be struck on that basis. Result [85] For these reasons, I would dismiss the appeal with costs to BP fixed at $20,000, as agreed to by the parties. Released: January 20, 2021 (“K.F.”) “K. Feldman J.A.” “I agree. K. van Rensburg J.A.” “I agree. Thorburn J.A.” [1] In the U.S., investors rely on SEC Rule 10b-5, 17 C.F.R. s.240.10b-5, under s.10(b) of the Securities Exchange Act of 1934 , to bring actions for misrepresentation in continuous disclosure. A plaintiff in a U.S. court must plead and prove scienter , namely an intent to deceive, manipulate or defraud: Ernst & Ernst v. Hochfelder , 425 U.S. 185 (U.S. Sup. Ct. 1976). See: Yip v. HSBC Holdings plc , 2017 ONSC 5332, at para. 69. [2] Most recently, the Supreme Court of Canada discussed how the discoverability rule applies to extend the limitation period for causes of action granted by s. 36(1)(a) of the Competition Act , R.S.C., 1985, c. C-34, in Pioneer Corp. v. Godfrey , 2019 SCC 42, 437 D.L.R. (4th) 383. [3] The Supreme Court of Canada has granted leave to appeal from the decision of the Court of Appeal of New Brunswick in Province of New Brunswick v. Grant Thornton , 2020 NBCA 18, 54 C.P.C. (8th) 271, leave to appeal granted, 39182 (August 13, 2020) on the issue of the extent of a plaintiff’s knowledge or discovery of the facts of negligent misstatement that will be sufficient to trigger the commencement of the limitation period. [4] Section 5(2) incorporates a presumption that the claimant knew all the discoverability components of a claim in s. 5(1)(a) on the day the act or omission took place, unless the contrary is proved, while s. 5(1)(b) incorporates into the discoverability analysis, when a reasonable person with the abilities and in the circumstances of the claimant ought to have known all of the s. 5(1)(a) discoverability components of a claim. For fraudulent misrepresentation, that would include the knowledge of falsity component.

COURT OF APPEAL FOR ONTARIO CITATION: Kenaidan Contracting Ltd. v. Lancaster Group Inc., 2021 ONCA 125 DATE:  20210224 DOCKET: C67371 MacPherson, Gillese and Nordheimer JJ.A. BETWEEN Kenaidan Contracting Ltd. Plaintiff (Appellant) and Lancaster Group Inc., Greg Crawford, and Blair Hubber Defendants (Respondents) Robert B. Cohen, for the appellant No one appearing for the respondents Heard: February 24, 2021 by video conference On appeal from the order of Justice Leiper of the Superior Court of Justice, dated July 25, 2019. APPEAL BOOK ENDORSEMENT [1] On consent, the appeal is dismissed without costs.

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: Kenora-Rainy River Districts Child and Family Services v. K.R., 2021 ONCA 123 DATE:  20210224 DOCKET: C68485 Fairburn A.C.J.O., MacPherson and Gillese JJ.A. BETWEEN Kenora-Rainy River Districts Child and Family Services Applicant (Respondent) and K.R. and P.N.R. Respondents (Appellants) K.R., acting in person P.N.R., acting in person David J. Elliott, for the respondent Heard and released orally: February 23, 2021 by video conference On appeal from the order of Justice John S. Fregeau of the Superior Court of Justice, dated June 15, 2020. REASONS FOR DECISION [1] The appellants are the parents of two children. In 2018, a justice of the Ontario Court of Justice (Family Court) found that the children were in need of protection pursuant to the Child and Family Services Act , R.S.O. 1990, c. C.11. [2] The appellants appealed from this decision to the Superior Court of Justice. During the course of the appeal process, the appellants brought several motions, one of which was a motion for further disclosure. In a decision dated 15 June 2020, Fregeau J. granted the relief sought in part and denied other disclosure requests as being irrelevant. [3] As a preliminary issue, the respondent contends that the appellants have brought their appeal in the wrong court; they should be in the Divisional Court. [4] Section 6(1)(b) of the Courts of Justice Act , R.S.O. 1990, c. C.43, requires that a final order of a judge of the Superior Court of Justice be appealed to the Court of Appeal. Section 19(1)(b) requires that an interlocutory order of a judge of the Superior Court of Justice be appealed to the Divisional Court with leave. If the order is interlocutory, s. 38(3) of the Family Law Rules , O. Reg. 114/99, requires the appeal and the leave motion to be heard at the same time. [5] We agree with the respondent. Justice Fregeau’s decision relating to disclosure is interlocutory: see Higgins v. Higgins , 2007 ONCA 663, at para. 19. [6] The appeal is quashed for lack of jurisdiction. “Fairburn A.C.J.O.” “J.C. MacPherson J.A.” “E.E. Gillese J.A.”

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE : Khader c. Mamache, 2021 ONCA 51 DATE : 20210125 DOSSIER : M52105 (C68765) La juge Roberts (la juge saisie de la motion) ENTRE Mohamed Khader Requérant (Appelant/Auteur de la motion) et Hassna Mamache Intimée (Intimée/Partie intimée) Mohamed Khader, en personne Kibondo M. Kilongozi, pour l’intimée Date de l’audience : le 22 janvier 2021 par visioconférence INSCRIPTION [1] L’appelant cherche à proroger le délai pour mettre son appel en état. L’appelant interjette appel de l’ordonnance du juge Shelston du 29 septembre 2020, rejetant sa motion de varier l’ordonnance finale du 23 octobre 2017, et de l’ordonnance du juge Shelston du 3 novembre 2020 concernant les dépens de la motion rejetée. [2] Les parties ont consenti à l’ordonnance finale du 23 octobre 2017 qui prévoit la garde partagée de leurs jeunes enfants. L’appelant a introduit une motion devant le juge Shelston pour varier cette ordonnance afin qu’il soit accordé provisoirement la garde exclusive de leurs enfants. En outre, les parties ont demandé au juge de déterminer si leurs enfants devraient assister virtuellement ou physiquement à l’école pendant la pandémie de la COVID-19. Sans un procès, le juge Shelston n’a pas pu déterminer les questions de crédibilité soulevées par les parties. Il a conclu qu’un procès était nécessaire pour les résoudre. Toutefois, il a décidé que les enfants peuvent assister physiquement à l’école. En tout, il a rejeté la motion de l’appelant avec des dépens de 7,000 $ accordés à l’intimée. [3] Dans une motion pour proroger le délai, les critères à examiner sont bien établis, à savoir : l’intention de l’appelant de poursuivre l’appel ; la durée du délai et l’explication pour ce délai ; le préjudice causé par le délai, y compris le préjudice aux enfants ; et le fondement de l’appel. Bien qu’il soit nécessaire d’étudier tous ces critères, l’impossibilité que l’appelant ait gain de cause peut être déterminative. La question prédominante est de considérer s’il est juste que le délai soit prorogé. Voir notamment Codina v. Canadian Broadcasting Corporation , 2020 ONCA 116, aux paras. 2, 7 ; Issasi v. Rosenzweig , 2011 ONCA 112, 277 O.A.C. 391, au para. 4 ; Enbridge Gas Distribution Inc. v. Froese , 2013 ONCA 131, 114 O.R. (3e) 636, aux paras. 15-16. [4] J’accepte que l’appelant veuille poursuivre son appel et qu’il prenne quelques efforts pour le faire. Néanmoins, je ne suis pas persuadée qu’il est juste que le délai soit prorogé parce que le délai cause préjudice aux enfants et l’appel est sans fondement. [5] Bien que le délai en question ne soit pas démesuré, tout délai a un impact sur l’intérêt des jeunes enfants des parties puisque ces enfants ont besoin d’une vie stable en matière de garde et d’accès, ce qui leur permet de fonder une bonne relation avec les deux parents : voir D.G. v. A.F. , 2014 ONCA 436, aux paras. 33-34. Le processus prévu par le juge Shelston pour régler ou déterminer par un procès la question de la garde présentée par l’appelant est retardé. La résolution définitive des litiges est extrêmement importante en matière de garde des enfants et renforce l’obligation de retenue envers la décision intrinsèquement discrétionnaire de première instance : Van de Perre c. Edwards , 2001 CSC 60, [2001] 2 R.C.S. 1014, au para. 13. [6] Deuxièmement, les ordonnances du juge Shelston sont interlocutoires et, par conséquent, sont du ressort de la Cour divisionnaire avec l’autorisation prévue dans les règles de pratique : voir l’art. 19(1)(b) de la Loi sur les tribunaux judiciaires , L.R.O. 1990, c. C.43. Par conséquent, l’appelant ne peut pas avoir gain de cause parce que la Cour d’appel ne peut pas entendre son appel. La règle applicable pour l’autorisation d’interjeter appel devant la Cour divisionnaire d’une ordonnance interlocutoire en vertu d’une motion est la r. 62.02 des Règles de procédure civile , R.R.O. 1990, Règl. 194. Cette motion est entendue sur pièces et l’autorisation est obtenue auprès d’une formation de juges de la Cour divisionnaire. Selon la r. 62.02(3) des Règles de procédure civile , l’avis de motion en autorisation doit être signifié dans les 15 jours qui suivent la date à laquelle a été rendue l’ordonnance. Toutefois, la r. 3.02 des Règles de procédure civile prévoit qu’un juge du tribunal d’appel peut proroger ce délai en vertu d’une motion. [7] L’intimée ne consent pas au transfert de l’appel et objecte que l’appelant sera autorisé à poursuivre son appel devant la Cour divisionnaire. Puisque l’appel exige l’autorisation de la Cour divisionnaire, je ne suis pas en mesure de transférer ou autoriser l’appel, selon l’art. 110 de Loi sur les tribunaux judiciaires . De plus, puisque seule la Cour divisionnaire a compétence d’entendre l’appel avec l’autorisation prévue par les règles de pratique, je ne suis pas en mesure de proroger le délai pour signifier l’avis de motion en autorisation. Ces questions sont à déterminer par la Cour divisionnaire, si l’appelant décide de poursuivre un appel en entreprenant les étapes nécessaires selon les règles de pratique. [8] Pour ces motifs, la motion est rejetée. [9] Il n’y aura pas d’ordonnance concernant les dépens de cette motion. “L.B. Roberts j.a.”

COURT OF APPEAL FOR ONTARIO CITATION: Knapp v. Knapp, 2021 ONCA 305 DATE: 20210510 DOCKET: C67153 Benotto, Miller and Trotter JJ.A. BETWEEN David Jonathan Knapp Applicant (Respondent) and Keturah Lael Knapp Respondent (Appellant) Michael Stangarone, for the appellant Todd Hein and John C. Noonan, for the respondent Heard: April 19, 2021 by video conference On appeal from the order of Justice Erika Chozik of the Superior Court of Justice, dated June 18, 2019, with reasons at 2019 ONSC 7353, and from the costs order dated February 19, 2020, with reasons at 2020 ONSC 1094. Benotto J.A.: [1] The parties are former spouses. They were involved in a high-conflict parenting dispute. After two years and multiple court attendances, the matter culminated in an 18-day trial. The trial judge concluded that joint custody was in the best interests of the children and apportioned the decision-making authority in an attempt to avoid ongoing conflict between the parents. [2] The mother appeals alleging errors by the trial judge. [3] For the reasons that follow, I would dismiss the appeal. FACTS [4] The appellant Keturah Knapp and the respondent David Knapp were married for over 13 years before separating in 2017. They have two children, now aged 11 and 8. While living together, they had roughly equal parenting time with the children. [5] The parties are deeply religious. In 2016, the appellant’s sister was going through a divorce and the respondent sent her a letter saying he believed she would suffer grave consequences from Jesus if she moved forward with her divorce. It was around this time that the appellant and respondent’s own marital problems escalated. [6] In early 2017, the parties decided to discuss their marital issues before two “witnesses” from their church. They had two meetings. The appellant asked the respondent to email her the biblical passages he was reading so she could better understand his position. After the meetings, he sent her the passages in an email with the subject line “Warning keturah”. The email included bible passages and comments suggesting wives should always submit to their husbands and that it was a sin for a wife to refuse to have intercourse with her husband. [7] Around two weeks later, without warning, the appellant took the children to a women’s shelter. She refused to allow the respondent to see the children unsupervised. The appellant testified that she was afraid the respondent would hurt her or her children to do “God’s bidding”. [8] The Office of the Children’s Lawyer (“OCL”), Children’s Aid Society (“CAS”), and the Crisis, Outreach and Support Team (“COAST”) were called in. They all investigated the respondent. [9] CAS and COAST found the respondent was no risk to himself or his children. The OCL recommended the respondent undergo a psychological evaluation. He complied and the evaluation found no indications of abuse and supported a finding that the respondent was a “well-functioning, adaptive individual with no major personality disturbances.” Nevertheless, the OCL recommended the appellant have sole custody of the children. DECISION BELOW [10] The main issue at trial was the parenting plan for the children. The trial judge was required to determine where the children would live, how much time they would spend with each parent and who would have decision-making authority. The trial judge concluded that the best interests of the children required a joint custody arrangement with parallel decision-making authority, and equal parenting time. [11] The trial judge rejected most of the appellant’s evidence, particularly her evidence respecting the allegations against the respondent. She found no evidence the respondent was, or was at risk of becoming, neglectful or abusive. His letter to the appellant’s sister and his email titled “Warning keturah”, when read in context, were not meant to be threatening. [12] The trial judge also rejected the bulk of the assumptions and conclusions underpinning the OCL’s report. The OCL investigator himself had observed no issues with the respondent’s parenting and failed to consider the best interests of the children in making his recommendation. [13] The trial judge noted that neither the CAS nor COAST had any concerns with the respondent’s parenting abilities. [14] At the conclusion of trial, the trial judge allocated decision-making between the parents: the appellant would have authority over education decisions and the respondent would have authority over medical decisions. This was in part because the appellant is fearful of traditional medicine and had a history of misrepresenting medical recommendations to the respondent. [15] Finally, the trial judge ordered the appellant to pay the respondent $250,000 in costs. ISSUES [16] The appellant alleges that the trial judge erred: (i) by relying on hearsay when she analyzed the OCL recommendations; (ii) by failing to consider the children’s wishes; (iii) by presuming that the maximum contact principle amounted to equal parenting time; (iv) by making an order that conflicts with final orders that were previously made on consent; and (v) by awarding costs to the respondent. ANALYSIS [17] It is always preferable – and in the best interests of the children – that the parenting plans be developed by the parents. That is why there is an emphasis on resolution in family law legislation and practice. When the parents cannot agree, the court must formulate a plan for them. This frequently results in at least one parent being dissatisfied. So too here. [18] I begin with two themes that permeate the appellant’s submissions and then turn to the specific allegations set out above. [19] The two themes are that the trial judge rejected the recommendation in the OCL report and also changed the status quo. [20] A trial judge is not required to accept the OCL recommendations. They are just that: recommendations. Here, the trial judge made extensive factual findings rejecting the foundation of the OCL recommendations. She then proceeded to make her own assessment as to the best interests of the children. [21] A trial judge is not bound by the perceived status quo. Here, the trial judge rejected the appellant’s evidence that she was the primary caregiver. Instead, she found that prior to the separation the parents shared parenting equally. The only change to the status quo occurred when the appellant unilaterally – and wrongly – removed the children from their home and kept them in a women’s shelter, denying the respondent parenting time. [22] Against this background, I turn to the specific errors of law alleged. (1) Hearsay [23] The appellant submits that the multiple reports including from COAST and the medical records filed were presumptively inadmissible hearsay and the trial judge erred in relying upon then absent authentication. [24] The trial judge did not err by referring to them. [25] Many of the medical reports were filed into evidence by the appellant. The COAST report was discussed in the OCL report. Many were put to both parties in cross-examination. Neither party denied the accuracy nor sought to call the declarants as witnesses. The appellant cannot now allege that the trial judge erred by relying on documents she submitted. (2) Views of the children [26] There is no question that the views and preferences of children must be considered in all matters affecting them. However, they must be viewed in context. [27] The children had been taken from their home, kept away from their father while their mother professed fear of their father. He was then only able to see them in a supervised setting with gradual increases. It would be naïve to think that these circumstances would not negatively influence the children’s views. [28] The trial judge rejected the appellant’s testimony that she feared for her safety or the safety of her children and found that her flight to the shelter and subsequent conduct “was aimed at gaining a tactical advantage in this litigation”. In doing so she correctly gave the children’s preferences little weight. [29] In any event the parties had agreed that the views of the children would be put in evidence through the OCL. The then 9-year old was somewhat ambivalent about where to live. The then 6-year old wanted more time with the appellant. The OCL report was not based on the wishes of the children, but on the clinician’s own views. The trial judge rejected the foundation of the clinician’s views and made her own determination as to best interest. (3) Maximum contact [30] The appellant submits that the trial judge erred by placing an onus on her to establish that equal parenting was not in the children’s best interests. She relies on the trial judge’s reference to Folahan v. Folahan , 2013 ONSC 2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a parent to rebut the presumption of equal time. As this court said in Rigillo v. Rigillo , 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time. [31] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) in force at the time of the trial addressed the maximum contact principle: 16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [32] The current provision of Divorce Act , is more direct: 16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. [33] The Children’s Law Reform Act , R.S.O. 1990, c. C.12, provided: 20 (1 ) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child. [34] The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children. (4) Jurisdiction challenge [35] The appellant argues that the trial judge lacked jurisdiction to make her order because it amounted to a change of the order of Coats J. made on March 20, 2019 which provided that: (i) the appellant is to take the children to counselling “to assist them in processing and coping with their feelings relating to the difficult transitions”; and (ii) neither parent would have care of the children for three weekends in a row. [36] The appellant says that – in light of this order – the trial judge did not have jurisdiction to order that the respondent make all major decisions with respect to all medical, dental, optometrist and vaccination issues. Nor, she says did the trial judge have the jurisdiction to order a summer schedule of three weeks uninterrupted for each parent. She submits that the order is marked “final” and could only be changed pursuant to a motion to change under r. 15 of the Family Law Rules , O. Reg. 114/99. [37] With respect, this submission borders on the frivolous. [38] Rule 15 of the Family Law Rules does not confer jurisdiction. It provides a process by which a party who wishes to change a final order can make that request to the court. It is simply wrong to suggest that it in any way limits a trial judge in the exercise of her discretion. [39] The trial judge had jurisdiction to determine the best interests of the children in all parenting matters. After an 18-day trial dealing almost exclusively with parenting, the trial judge made findings of fact and determined the best interests of the children would be served by a joint custody arrangement with specified decision-making authority and specified time-sharing. She was in no way bound by an earlier order and a motion to change was not necessary. [40] In any event, the order of Coats J. is no longer relevant. The counselling it referred to was in connection with the transition and conflict that the children had experienced. The children are no longer in transition. They have been in the regime set out by the trial judge for two years. [41] I am also not convinced that the order is final. Despite the word “final” on the order, all matters of parenting remained outstanding and subject to trial – this is the hallmark of an interlocutory order. (5) Costs [42] Costs were awarded to the respondent by the trial judge. She found that there were many examples of the appellant acting unreasonably and with excessive caution, both before and during the trial. The respondent also made two offers to receive somewhat less than 50/50 access, both of which the appellant refused. Considering the appellant’s conduct and that the respondent was more successful at trial than in either of his offers to settle, the respondent was entitled to substantial indemnity costs. [43] The appellant seeks leave to appeal the trial judge’s costs order. She submits that it is inappropriate to order costs in parenting cases when the parties have acted in good faith. [44] While the trial judge did not find bad faith, she did articulate multiple examples of the appellant’s unreasonable conduct which unnecessarily drew out and complicated the proceedings and increased the litigious nature of the proceedings. In arriving at her conclusion, she applied the guidance of r. 24. [45] Except to comment that the words “substantial indemnity” and “full indemnity” do not apply to r. 24, I see no basis to interfere with her discretion in awarding costs to the respondent or with respect to her overall assessment of the quantum. (6) Fresh Evidence [46] The mother appealed the trial decision which was dated June 19, 2019. After multiple delays, she perfected the appeal which was heard nearly two years later on April 19, 2021. [47] One week before the appeal was heard, the appellant filed a motion to submit fresh evidence on the appeal. [48] Where children are involved, there is generally more flexibility with respect to the admission of fresh evidence. However, the evidence submitted here does not assist a determination of the issues. It is in the form of an affidavit sworn by the appellant which argues why the trial judgment is wrong. In effect, it reflects a continuation of the conduct that led the trial judge to make a finding of unreasonableness. [49] I would not admit the fresh evidence. CONCLUSION [50] I would dismiss the appeal with costs to the respondent in the agreed upon amount of $18,000, all inclusive. Released: May 10, 2021 “M.L.B.” “M.L. Benotto J.A.” “I agree B.W. Miller J.A.” “I agree Gary Trotter 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: L.R. v. Children’s Aid Society of Toronto, 2021 ONCA 84 DATE: 20210208 DOCKET: M52038 (C68584) Rouleau, Benotto and Thorburn JJ.A. BETWEEN L.R. Respondent Mother (Appellant/Responding Party) and Children’s Aid Society of Toronto Applicant (Respondent /Moving Party) and T.H. Respondent Father (Respondent/Responding Party) and Office of The Children’s Lawyer Respondent (Respondent/Responding party) Chithika Withanage and Marcia Duncan, for the moving party the Children’s Aid Society of Toronto Jane Long and Gary Gottlieb, for the responding party the Office of the Children’s lawyer L.R., acting in person T.H., acting in person Heard and released orally: February 4, 2021 by video conference REASONS FOR DECISION [1] The Children’s Aid Society (the Society) brings this motion to quash the second appeal in a child protection matter. The child is 12 years old and has been the subject of the proceedings for several years. The Office of the Children’s Lawyer represents the child and supports the motion. [2] In 2019 the child was found in need of protection. There was no appeal from the protection order. The following year, the parties participated in an 11-day trial before Zisman J. The evidence was extensive. In a detailed 47-page decision, the trial judge assessed the evidence and made clear findings of fact. She concluded that the child should be placed in the temporary care of the Society for four months and then placed in the care of the father for six months under supervision. She also ordered that the mother not audio or video record the child, the father, any Society worker or third-party professional working with the family without prior consent. [3] The mother appealed the order of Zisman J. to the Superior Court. For extensive and detailed reasons, Horkins J. dismissed the appeal. The mother now appeals the dismissal of the appeal to this court. The father takes no position on this appeal or on the motion to quash the appeal. [4] The mother’s appeal is from the temporary order. Two events have taken place since the dismissal of the appeal: the temporary supervision order has expired; and a status review application was commenced on October 15, 2020 before the Ontario Court of Justice. The first appearance took place on November 12, 2020. In the result, the order of Zisman J. is now a nullity. The appeal is therefore moot. [5] We see no reason to exercise our discretion to hear the appeal. An appeal will not advance the interests of the child and the ongoing factual issues belong in the Ontario Court of Justice. The child’s future must be determined without delay and the status review should proceed expeditiously. [6] The appeal is therefore quashed. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Lad v. Marcos, 2021 ONCA 183 DATE: 20210325 DOCKET: M52058 (C68821) Lauwers, Trotter and Zarnett JJ.A. BETWEEN Ishver Lad and Sumitra Lad Plaintiffs (Respondents/Moving Parties) and Manny Marcos, also known as Manuel Marcos also known as Manuel Martins Marcos also known as Manny Martins Marcos also known as Manuel M. Marcos, Joe Marcos, also known as Joe Luis Marcos also known as Jose Luis Marcos also known as Jose Marcos, Arlete Susana Marcos, Catarina Arruda Marcos and Marcos Limited Building Design Consultants Defendants (Appellants/Responding Parties) Dora Konomi and Timothy M. Morgan, for the moving parties Ted Evangelidis, for the responding parties Joe Marcos, Arlete Susana Marcos, and Catarina Arruda Marcos Gregory Hemsworth, for the responding parties Manny Marcos and Marcos Limited Building Design Consultants Heard: March 18, 2021 by video conference REASONS FOR DECISION [1] This is yet another motion to quash an appeal on the basis that the order under appeal is interlocutory, not final, and not properly before this court. The principles governing this issue were recently laid out in Paulpillai Estate v. Yusuf , 2020 ONCA 655, at para. 16. [2] The motion judge described the motion before him in these terms: Joe Marcos, Arlete Marcos and Catarina Marcos, and separately, Manny Marcos, seek an order striking out the Plaintiffs' claims for declaratory relief set out in paragraphs 1(a) and (b) of the Fresh as Amended Statement of Claim issued June 10, 2019, together with the consequential and ancillary relief set out in paragraphs 1(c) - (f), without leave to amend. The effect of this relief, if granted, would end the Plaintiffs’ claim. In the alternative, the defendants seek a determination under r. 21.01(1)(a) that the plaintiffs cannot seek and are not entitled to the declaratory relief sought in paragraphs 1(a) and (b) of the Fresh as Amended Statement of Claim, and therefore are not entitled to the ancillary and consequential relief arising therefrom sought in paragraphs 1 (c) - (f). [3] The nub of the motion judge’s decision is this: For the reasons that follow, the motion is dismissed. In reaching this result, I make no comment of the viability of the causes of action either as pleaded, or as determined on a full record, or with respect to the eloquence with which they are pleaded. I merely hold a) that it is not plain and obvious that the causes of action have no merit, and b) they are properly pleaded. [4] The responding parties argue that because the motion was brought under r. 21.01(1)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, the motion judge’s decision perforce was a final determination of a legal question. They cite Atlas Holdings v. Vratsidas , 2012 ONSC 1375, at para. 12. But that case turned on a determination that finally disposed of a question of law, being whether the limitations defence was available to the defendants. The Superior Court had found that it was not available, and this court had agreed. Brown J., as he then was, then said, at para. 18, “having lost on the question of law as to whether the plaintiffs' claims were statute-barred, the defendants cannot now rely on a limitation period defence.” [5] The law is clear that not every unsuccessful motion under r. 21.01(1)(a) automatically gives rise to a right of appeal, only those that “finally dispose of the issue raised by that defence, and thereby [deprive] the defendant of a substantive right which could be determinative of the entire action": Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.). [6] The order the moving parties seek to appeal did not finally determine any issues between the parties; the issues were all left to the trial judge. It is quintessentially an interlocutory order over which only the Divisional Court has jurisdiction under s. 19(1)(b) of the Courts of Justice Act , R.S.O. 1990, c. C.43. [7] This conclusion is so obvious that this attempted appeal can be described as no more than an effort to buy time, part of what the motion judge, in his costs endorsement, termed the defendants’ “Carthaginian litigation strategy”. We agree with the moving parties that they are entitled to substantial indemnity costs and fix them in the amount of $10,000 inclusive of disbursements and taxes, payable by the responding parties forthwith. “P. Lauwers J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Landrus (Re), 2021 ONCA 292 DATE: 20210504 DOCKET: C68823 van Rensburg, Huscroft and Thorburn JJ.A. IN THE MATTER OF: Benjamin Landrus AN APPEAL UNDER PART XX.1 OF THE CODE Ken J. Berger, for the appellant Karen Papadopoulos, for the respondent, Attorney General of Ontario Jessica Szabo, for the respondent, the Person in Charge of Ontario Shores Centre for Mental Health Sciences Heard: April 30, 2021 by videoconference On appeal from the disposition of the Ontario Review Board, dated October 13, 2020, with reasons dated November 3, 2020. REASONS FOR DECISION [1] This is an appeal from a disposition of the Ontario Review Board (the Board) on a restriction of liberty hearing. The appellant, who has schizophrenia, was found not criminally responsible on account of mental disorder (NCR) on a charge of aggravated assault in June 2013. Pursuant to the disposition of May 6, 2020 he has been detained at the Ontario Shores Centre for Mental Health Sciences (the Hospital) with privileges up to and including the ability to live in the community in accommodations approved by the person in charge. [2] On August 28, 2020, the Board was informed, pursuant to s. 672.56(2)(b) of the Criminal Code , that the appellant’s liberty had been restricted. On August 17th, the appellant had been transferred from a general forensic unit at the Hospital to a more restrictive secure forensic unit. The appellant, who was deemed incapable of consenting to treatment, but was appealing that finding, had stopped taking his anti-psychotic medication. In the months leading up to the restriction of liberty, the appellant’s mental health had deteriorated and there were instances of verbal aggression and hostility to co-patients and staff. [3] Following a restriction of liberty hearing, the Board found that the restriction of the appellant’s liberty was and remained necessary and appropriate and constituted the least onerous and restrictive measure. The Board accepted that the appellant’s mental health had deteriorated, and that he showed increased irritability and hypersensitivity to sound. His behaviour had deteriorated to the point where it was obvious that he required the higher level of structure, support and observation he could only receive on a secure forensic unit. [4] The appellant asserts that the Board failed to take into consideration his liberty interests and “other needs”, as mandated by s. 672.54 of the Code . In particular, the Board did not properly assess his request for a lateral transfer to another unit. He asserts that the Board’s findings – that his mental status had deteriorated as a result of not taking his medication, and that the transfer to a more secure forensic unit was necessary – were not supported by evidence and were unreasonable. The appellant submits that it was unreasonable for the Board to find that the Hospital was justified in not transferring him to another minimum security unit to alleviate his sensitivity to noise and other environmental stressors, that were the cause of his conflict with other co-patients and staff. He contends that the Hospital transferred him to a more secure unit simply to “teach him a lesson” and to punish him for not taking his medication. [5] We disagree. [6] The Board considered all of the required factors, including the appellant’s request for an accommodation in his living conditions. There was evidence to support the need to transfer the appellant to a more secure unit. This included the testimony of his treating psychiatrist, Dr. Pytyck, that, among other things, the appellant was not manageable in the lower security unit; that his acting out posed a risk of harm to co-patients and staff; that the months leading up to the restriction of liberty were marked with increasingly rapid decompensation; that the appellant directly threatened three patients; and that he had little to no insight into his need for treatment. [7] Contrary to the appellant’s submissions, there is no evidence that the Hospital was simply trying to teach the appellant a lesson about taking his medication, by refusing his request for a transfer to a different unit with less noise and environmental stimuli. [8] The evidence that was accepted by the Board was that, in the months before the transfer to a more secure unit, the Hospital on several occasions had offered and the appellant had refused, a room change on the same unit in an attempt to accommodate his request for a quieter and darker environment. The Board reasonably accepted Dr. Pytyck’s evidence, supported by the Hospital’s report, that the appellant’s behaviour had deteriorated to the point where it was obvious that he required the higher level of structure, support and observation that he could only receive on a secure forensic unit and that the appellant’s behaviour resulted from the deterioration of his mental status after he had discontinued his medication. Since his transfer to a secure forensic unit, his presentation had remained much the same, with a further incident of threatening behaviour to a co‑patient. There is nothing to support the appellant’s contention that a lateral move to different minimum-security unit would have improved his mental state or behaviour. [9] The Board’s conclusion that the restriction of liberty was and remained necessary is reasonable. For these reasons the appeal is dismissed. “K. van Rensburg J.A.” “Grant Huscroft J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Latner v. Ontario Securities Commission, 2021 ONCA 316 DATE: 20210511 DOCKET: C67944 Juriansz, van Rensburg and Sossin JJ.A. BETWEEN Gabriel Latner Applicant (Appellant) and Ontario Securities Commission Respondent (Respondent) Gabriel Latner, acting in person Andrew Lokan and Elizabeth Rathbone, for the respondent Heard: May 5, 2021, by video conference On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated November 28, 2019. REASONS FOR DECISION [1] The appellant appeals from an order striking out his application challenging a regulation adopted and enforced by the Ontario Securities Commission that allows individuals to purchase stocks in the “exempt market” if they meet minimum income and net worth thresholds. His application rested on the premise that “economic class” should be recognized as an analogous ground under s. 15 (1) of the Canadian Charter of Rights and Freedoms . The motion judge struck the application without leave to amend under r. 21.01(1)(b) because she reasoned that his position that “economic class” should be recognized as an analogous ground under s. 15 was doomed to fail. [2] We agree with the cogent reasons of the motion judge. We do not accept the appellant’s argument that the motion judge erred by making a finding of fact by holding “economic class is not an immutable personal characteristic”. She used that phrase, not in making a finding of fact, but in quoting from para. 13 of the Supreme Court’s judgment in Corbiere v. Canada (Minister of Indian and Northern Affairs) , [1999] 2 S.C.R. 203. She went on to observe that the Supreme Court added that an analogous ground flows from “the central concept of immutable or constructively immutable personal characteristics” and “impacts on a discrete and insular minority, or a group that has been historically discriminated against”: Corbiere , at para. 13. It is clear in the context of the decision as a whole that the appellant’s application did not disclose sufficient facts to meet the requirements to establish an analogous ground, as set out in Corbiere . [3] Nor do we accept the appellant’s argument that the motion judge improperly reversed the onus on the respondent’s motion to strike. The motion judge correctly identified that “ [t]he facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated”: R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22. She then identified the legal test that the facts pleaded had to satisfy in order for the application to not be struck. The motion judge held that the applicant “ha[d] not pleaded any material facts to show that all Canadians who cannot meet the impugned threshold…shared any personal characteristic beyond an inability to meet the threshold.” The motion judge also noted that the appellant “failed to plead that this group…has suffered historic disadvantage or is at risk of having such disadvantages perpetuated by stereotyping or prejudice.” When her reasons are read as a whole, it is clear the motion judge struck the application because she was satisfied there was no reasonable prospect it would succeed because the law was “sufficiently settled” as applicable to the facts as pled by the appellant. [4] We agree that there was no chance that the economic class of the “vast majority of Canadians” who would be precluded from investing in the capital markets for their inability to meet the impugned threshold, could acquire the status of a protected group under s. 15 of the Charter . The application cannot be amended to avoid that result. The motion judge did not err in principle or act unreasonably in refusing the appellant leave to amend his application. [5] The appeal is dismissed. Costs are fixed in the amount of $10,000 all-inclusive. “R.G. Juriansz J.A.” “K. van Rensburg J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Laurentian University of Sudbury (Re), 2021 ONCA 199 DATE: 20210331 DOCKET: M52287 Hoy, Pepall and Zarnett 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 Laurentian University of Sudbury Murray Gold and James Harnum, for the moving party the Ontario Confederation of University Faculty Associations Susan Philpott and Charles Sinclair, for the moving party the Laurentian University Faculty Association Miriam Martin, for the moving party the Canadian Union of Public Employees D.J. Miller, Scott McGrath and Derek Harland, for the responding party Laurentian University of Sudbury Ashley Taylor, Elizabeth Pillon and Zev Smith, for the responding party Ernst & Young Inc., acting as the Monitor Heard: in writing Motion for leave to appeal from the order of Chief Justice Geoffrey B. Morawetz of the Superior Court of Justice, dated February 26, 2021. REASONS FOR DECISION [1] Laurentian University of Sudbury (“Laurentian”) is a publicly funded, bilingual and tricultural post-secondary institution, serving domestic and international undergraduate and graduate students. Due to recurring operational deficits, it has encountered a liquidity crisis and is insolvent. [2] Laurentian sought and obtained protection under the Companies’ Creditors Arrangement Act , R.S.C. 1985, c. C.36 (“CCAA”), to permit it to restructure, financially and operationally, in order to emerge as a sustainable university for the benefit of all stakeholders. Among the stated reasons for Laurentian’s CCAA application was what it described as unsustainable “academic costs”, which Laurentian attributes in part to the terms of its collective agreement with its faculty members. [3] Two unions representing Laurentian employees - the Laurentian University Faculty Association (“LUFA”) and the Canadian Union of Public Employees (“CUPE”) -  and the Ontario Confederation of University Faculty Associations (“OCUFA”), an umbrella organization representing faculty associations, seek leave to appeal the decision of the CCAA judge, dated February 26, 2021, which continues a sealing order over two documents that Laurentian filed on its application for CCAA protection. [4] Having reviewed the written submissions of the parties and the sealed documents, we refuse leave for the reasons that follow. Background [5] On  February 1, 2021, the CCAA judge made an order (the  “Initial Order”),  granting Laurentian initial relief under the CCAA. [6] Four days later, on February 5, 2021, the CCAA judge made an order appointing Dunphy J. as mediator to conduct a confidential mediation among Laurentian’s key stakeholders. The mediation is intended to address various issues concerning Laurentian’s restructuring, including a new collective agreement with LUFA, which represents 612 Laurentian faculty, accounting for 60% of the university’s payroll. LUFA supported the appointment of the mediator. [7] The Initial Order contained a sealing provision. At the comeback hearing, there was opposition to it. The CCAA judge continued the sealing provision in the Amended and Restated Order, dated February 11, 2021, on an interim basis, pending a supplementary endorsement. [8] The sealing provision, which was identical in both orders, covers two exhibits (Exhibits “EEE” and “FFF”) to the affidavit by Dr. Robert Haché, which was filed in support of Laurentian’s request for the Initial Order. Dr. Hach é is the President, Vice-Chancellor and CEO of Laurentian. [9] The sealing provision states that the Exhibits “are herby sealed pending further order of the Court, and shall not form part of the public record”. Both the Initial Order and the Amended and Restated Order provide that any interested party may apply on seven days’ notice to vary or amend the order. [10] The sealed Exhibits consist of two letters. Exhibit “EEE” is a letter from the Ministry of Colleges and Universities (“Ministry”) to Laurentian, dated January 21, 2021. Exhibit “FFF” is a letter from Laurentian to the Ministry, dated January 25, 2021. Laurentian has described the letters as containing “information with respect to [Laurentian] and certain of its stakeholders, including various rights or positions that stakeholders or [Laurentian] may take either inside or outside of these CCAA proceedings, the disclosure of which could jeopardize [Laurentian’s] efforts to restructure.” [11] None of the moving parties sought to cross-examine Dr. Hach é on his affidavit or the communications between Laurentian and the Ministry. [12] The CCAA judge released his supplementary endorsement on February 26, 2021, continuing the sealing provision. The effect of the sealing provision is that both the broader public and the parties to the CCAA proceeding are prevented from accessing the Exhibits. [13] The CCAA judge held that the sealing provision was authorized under s. 137(2) of the Courts of Justice Act , R.S.O. 1990, c. C.43, and by the application of the principles in Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41, [2002] 2 S.C.R. 522. According to Sierra Club , at para. 53, a confidentiality or sealing order should only be granted when: (a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. [14] The CCAA judge summarized the evidence in Dr. Hach é ’s affidavit and noted that he had reviewed the Exhibits in detail. He indicated that the evidence, as contained in Dr. Hach é ’s affidavit, outlines that there has been continuous communication between Laurentian and the Ministry with respect to Laurentian’s financial crisis, and that the government is well aware that a real-time solution must be found if Laurentian is to survive. He noted that ”the role, if any, that the Ministry will play is at this moment uncertain.” [15] Considering the first branch of the Sierra Club test, he concluded that disclosure of the Exhibits, “ at this time , could be detrimental to any potential restructuring of [Laurentian]” (emphasis added). Accordingly, “the risk in disclosing the Exhibits is real and substantial and poses a serious risk to the future viability of [Laurentian].” He also noted that “it is speculative to conclude that the Exhibits contain information that is not helpful to [Laurentian’s] position.” [16] He found that the commercial interest was that of the entire Laurentian community, including the faculty, students, employees, third-party suppliers and the City of Greater Sudbury and the surrounding area; that it is of paramount importance to these groups that all efforts to restructure Laurentian be explored; and that it is necessary to maintain the confidentiality of the Exhibits in order to do so. He reiterated that “[t]he disclosure of the Exhibits, at this time, could undermine the restructuring efforts being undertaken by [Laurentian]” (emphasis added). [17] He was not satisfied that there were any reasonable alternatives to a sealing order over the Exhibits. Stakeholders were involved in the mediation and the negotiations could or could shortly be at a sensitive stage. It would not be appropriate to implement any alternative to a confidentiality order. To do so could negatively impact the mediation efforts. [18] Turning to the second branch of the Sierra Club test, the CCAA judge was also satisfied, based on the evidence, that the salutary effects of the sealing provision outweighed its deleterious effects, including the public interest in accessing the Exhibits. Leave Test [19] Section 13 of the CCAA provides that any person dissatisfied with an order or a decision made under the CCAA may appeal from the order or decision with leave. Leave to appeal in CCAA proceedings is to be granted sparingly and only where there are serious and arguable grounds that are of real and significant interest to the parties. This cautious approach is a function of several factors. [20] First, a high degree of deference is owed to discretionary decisions made by judges supervising CCAA proceedings, who  are “steeped in the intricacies of the CCAA proceedings they oversee”.  Appellate intervention is justified only where the “supervising judge erred in principle or exercised their discretion unreasonably”: 9354-9186 Qu é bec inc. v. Callidus Capital Corp. , 2020 SCC 10, 78 C.B.R. (6th) 1, at paras. 53 to 54. [21] Second, CCAA proceedings are dynamic. It is often “inappropriate to consider an exercise of discretion by the supervising judge in isolation of other exercises of discretion by the judge in endeavouring to balance the various interests”: Edgewater Casino Inc. (Re) , 2009 BCCA 40, 51 C.B.R. (5th) 1, at para 20. [22] Third, CCAA restructurings can be time sensitive. The existence of, and delay involved in, an appeal can be counterproductive to a successful restructuring. [23] In addressing whether leave should be granted, the court will consider four factors, specifically whether: (a) the proposed appeal is prima facie meritorious or frivolous; (b) the points on the proposed appeal are of significance to the practice; (c) the points on the proposed appeal are of significance to the action; and (d) whether the proposed appeal will unduly hinder the progress of the action. See: Nortel Networks Corp. (Re) , 2016 ONCA 332, 130 O.R. (3d) 481, at para. 34. Leave is Not Warranted [24] As we will explain, we refuse to grant leave because the proposed appeal is not prima facie meritorious, granting leave would unduly hinder the progress of the action, and the proposed appeal is not of significance to the action. This is not an appropriate case for this court to explore issues of significance to the practice relating to the granting of sealing orders in the CCAA context. Leave Not Prima Facie Meritorious [25] The moving parties raise three questions for determination on their proposed appeal, which we paraphrase as follows: 1. Did the CCAA judge err in focussing solely on Laurentian’s assertion of an important commercial interest without balancing the various competing interests applicable to a sealing order? 2. Did the CCAA judge err in granting the sealing provision without a sufficient evidentiary foundation? 3. Did the CCAA judge err in concluding that the sealing provision was justified as a result of speculative concerns about the impact that disclosure of the Exhibits that were sealed would have on the CCAA restructuring process? [26] A significant plank of the moving parties’ argument is that the sealing provision denies access to the sealed documents to parties to the CCAA process on the ostensible ground that the documents might have an impact on the positions those parties choose to take vis- à -vis the restructuring. They argue that the importance of the documents to the formulation of their positions is the exact reason why they should have access to the documents, not a justification for denying access to them. [27] We note that one of the moving parties, OCUFA, is not a creditor of Laurentian and is apparently not participating in the court-ordered mediation, the aim of which is a consensual restructuring. It is not clear in what sense OCUFA is a party to the CCAA proceeding or is in any different position than any other member of the public who may be interested in the court-filed materials. Yet the moving parties do not differentiate, in their proposed appeal questions or in the relief they propose to seek, between the entitlements of OCUFA to obtain the documents and those of the other moving parties. In other words, although reference is made to the denial of access to “litigants”, the underlying theory of the moving parties actually starts and stops with the proposition that there should be no sealing order at all. [28] We are not persuaded that the proposed appeal, challenging what is a discretionary order, is prima facie meritorious. [29] The CCAA judge set out the Sierra Club test in his reasons. Contrary to the submissions of the moving parties, he was well aware that Sierra Club required him to balance the deleterious effects of the sealing order. [30] In earlier reasons, the CCAA judge noted that if the restructuring is to be successful, it will have to be largely completed by the end of April 2021. The timeline is exceptionally short. In exercising his discretion, the CCAA judge concluded that the risk to the potential restructuring of Laurentian within this extremely tight timeframe if the Exhibits were disclosed outweighed other relevant interests. [31] The moving parties were (and are) concerned that they understand the Ontario government’s position in relation to the restructuring, yet they did not seek to cross-examine Dr. Hach é . The CCAA judge, who reviewed the Exhibits, strove to address that concern, carefully signaling that “the role, if any, that the Ministry will play is at this moment uncertain.” Alive to concerns about fairness, he also signaled to the parties that it would be “speculative to conclude that the Exhibits contain information that is not helpful to [Laurentian’s] position.” [32] The moving parties have expressed particular concern that the sealing order creates an informational imbalance that may hurt them in the mediation process. Nothing before us suggests that the moving parties who are participating in the court-ordered mediation (which appears to be only LUFA) have been hampered by any informational imbalance. The judicial mediator, who was appointed by the CCAA judge, is a bulwark against unfair treatment in the mediation. Should the judicial mediator have concerns that the moving parties have been hampered in the mediation by an informational imbalance or a perceived informational imbalance, it is open to him to raise them with the CCAA judge within the parameters of the February 5, 2021 order appointing the mediator. [33] Nor do we see anything in the sealing provision that would prevent a party from making a request to the CCAA judge, at the appropriate time, for relief on appropriate terms. As noted, the sealing provision is expressly subject to “further order of the Court”. The CCAA judge in his reasons of February 26 said only that an alternative to the sealing provision was not appropriate “at this time”. [34] In seeking leave, the moving parties have raised questions about how s. 2(d) of the Charter of Rights and Freedoms comes into play, as one of the purposes of the mediation is to conclude a new collective agreement with LUFA. But they do not dispute Laurentian’s submission that this issue was not argued below. It is difficult to fault the CCAA judge for not weighing a competing interest that was not asserted before him. [35] The moving parties also say that the CCAA judge failed to advert to the impact his ruling would have on freedom of expression. We are satisfied he did take that factor into account, as he mentions it in setting out the test and later says that the deleterious effects include “the public interest in accessing the Exhibits.” [36] The second and third questions raised by the moving parties ask the court to revisit an issue raised before the CCAA judge. He described the essence of the submissions made to him by those opposing the sealing order as there being no evidence that the sealing order was necessary to protect a valid commercial interest. [37] The CCAA judge was satisfied that there was a sufficient evidentiary basis. He based his conclusion that disclosing the Exhibits posed a serious risk to the restructuring on his review of the Exhibits and Dr. Haché ’s evidence. The moving parties are correct that Dr. Haché did not opine in his affidavit that disclosure of the Exhibits posed a serious risk to the viability of the restructuring. But Dr. Haché ’s evidence describes something of the dynamics at play and is clear as to Laurentian’s dire position and the timeframe within which the restructuring must be completed, if it is to be successful. It provided the foundation on which the Monitor, an officer of the court, supported Laurentian’s position that disclosure posed a serious risk, and the CCAA  judge, who has extensive experience in CCAA restructurings, concluded that disclosure posed a serious risk. The CCAA judge exercised his judgment, based on an evidentiary record. [38] The fact the proposed appeal is not prima facie meritorious weighs significantly against granting leave. Appeal Would Hinder Progress of the Action [39] As we have said, this restructuring is on an exceptionally short timeline. We are told that the mediation is ongoing, with sessions occurring daily. There is urgency to being able to reach a successful restructuring by the end of April, in light of Laurentian’s financial position and the need for certainty regarding the next academic year. There is too great a risk that an appeal would be a distraction from restructuring efforts and thus would unduly hinder the progress of the action, which also weighs significantly against granting leave. No Significance to the Action [40] Given the involvement of a court-appointed mediator and that it is open to the CCAA judge to revisit the sealing provision and possibly revoke it or limit its impact by allowing the parties to the CCAA proceeding to access the sealed documents, the significance of the proposed appeal to the action is insufficient to justify leave. Significance to the Practice [41] The facts of this case highlight some novel and interesting questions about the application of the Sierra Club test in the CCAA context. These include questions about granting sealing orders over information filed in support of the application for protection under the CCAA, the granting of sealing orders where interests under s. 2(d) of the Charter are arguably at play, and about the application of sealing orders  to parties and stakeholders involved in the restructuring efforts. However, given our view of the merits of the proposed appeal and the other factors, this is not the appropriate case in which to explore these issues. Disposition [42] Leave to appeal is refused. In the circumstances, there shall be no order as to costs. “Alexandra Hoy J.A. “S.E. Pepall J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Lengyel v. TD Home and Auto Insurance, 2021 ONCA 237 DATE: 20210415 DOCKET: M51658 (C67778) Tulloch, Nordheimer and Jamal JJ.A. BETWEEN Gabriella Lengyel Appellant (Plaintiff) and TD Home and Auto Insurance Respondent (Defendant) Gabriella Lengyel, in person/responding party Heather Hogan, for the Public Guardian and Trustee/moving party No one appearing for the defendant Heard: April 9, 2021 by video conference REASONS FOR DECISION [1] The Public Guardian and Trustee brings a motion to quash this appeal on the grounds that this court lacks jurisdiction to hear it. We are advised that the defendant supports the motion [2] The Public Guardian and Trustee is the litigation guardian for Gabriella Lengyel with respect to two civil proceedings arising out of automobile accidents where Ms. Lengyel is the plaintiff. The Public Guardian and Trustee settled those proceedings and obtained court approval of the settlement, over the objections of Ms. Lengyel. [3] Ms. Lengyel has appealed the approval order to this court. The Public Guardian and Trustee says that this court does not have jurisdiction to hear this appeal because (a) Ms. Lengyel has no right to bring the appeal as that authority lies entirely with her litigation guardian and (b) if Ms. Lengyel is seeking to challenge the appointment of the Public Guardian and Trustee as her litigation guardian, then that appeal lies only to the Divisional Court, with leave. [4] Both points made by the Public Guardian and Trustee are well-taken. Once a litigation guardian is appointed, the litigation guardian has sole control over the proceeding: Kavuru (Litigation guardian of) v. Heselden , 2014 ONSC 6718, 328 O.A.C. 399, 70 C.P.C. (7th) 60 (Div. Ct.). As was pointed out in Kavuru , if Ms. Lengyel is unhappy with the settlement, she could have sought to replace the Public Guardian and Trustee as her litigation guardian, but she has not done so. [5] Further, if Ms. Lengyel were to take the route of seeking to replace her litigation guardian, that would be a matter to be dealt with before the Superior Court of Justice or, if taken by way of appeal from the original appointment order, to the Divisional Court, with leave. [6] In either event, Ms. Lengyel does not currently have the authority to appeal the order approving the settlement. [7] The appeal is quashed for lack of jurisdiction. Our order is without prejudice to Ms. Lengyel bringing a motion before the Divisional Court for an extension of time to seek leave to appeal from the order appointing the Public Guardian and Trustee as litigation guardian, if she is so advised. We would not make any order as to costs. “M. Tulloch J.A.” “I.V.B. Nordheimer J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Lenihan v. Shankar, 2021 ONCA 142 DATE: 20210303 DOCKET: M52203 & M52231 (C68956) Benotto J.A. (In Chambers) BETWEEN Kevin William Lenihan Applicant (Moving Party on M52203/ Responding Party on M52231) and Indira Shankar Respondent (Responding Party on M52203/ Moving Party on M52231) Andrew Chris and Joanna Hunt-Jones, for the moving party/responding party Indira Shankar, acting in person Heard: February 17 and 25, 2021 REASONS FOR DECISION INTRODUCTION [1] The applicant, Kevin Lenihan, is the father of two-year old M. The respondent, Indira Shankar is the mother. They have been involved in high conflict custody litigation for M.’s entire short life. Ultimately, the trial judge awarded sole custody to Mr. Lenihan and the right for him to move to Oregon with M. Ms. Shankar appeals. Mr. Lenihan brought a motion for security for costs. [2] At the original return of the motion, Ms. Shankar indicated that she wanted to file a response, but the court office would not accept her material because it was not in the correct format. I adjourned the motion to be returned before me and advised the motions office to accept her material notwithstanding its deficiencies. [3] I have now heard and read submissions from both parties. BACKGROUND [4] Mr. Lenihan, an American citizen, lives in Oregon where he owns a home near to his parents and two brothers. He and Ms. Shankar met in Oregon. Very quickly after their meeting, Ms. Shankar moved into his home and they married in June 2017. Ms. Shankar is a citizen of India with permanent residence status in Canada. A month after their marriage she returned to Canada ostensibly to maintain her permanent residence status. The following month, the parties learned that Ms. Shankar was pregnant. Mr. Lenihan moved temporarily to Ontario to be with her. Problems in the marriage arose and they separated in December 2017. [5] In early February 2018 Ms. Shankar sent Mr. Lenihan a series of text messages indicating that the baby had been born prematurely and was in the neo-natal intensive care unit, breathing on a ventilator. These statements were false. M. was born on March 30, 2018. [6] M. was born with a condition called craniosynostosis. She underwent three corrective surgeries in 2018 and 2019. The surgeries were successful, and she has no continuing disability, although updates will be required from time to time. [7] From the day of her birth, M. has been at the center of conflict and litigation. Due to allegations made by Ms. Shankar, the Children’s Aid Society (“CAS”) became involved. So too did the Office of the Children’s Lawyer (“OCL”). The CAS and OCL determined that the allegations were false. Several family court judges conducted case conferences. Finally, the custody trial began on November 17, 2020. [8] Mr. Lenihan and his mother travelled from their home in Oregon to Ontario two weeks in advance of the trial to sit out their required quarantine period in a local hotel where they maintained their residence throughout the proceeding. THE TRIAL [9] The trial lasted for four weeks.  The trial judge’s reasons describe its many challenges. On the fifth day of trial, Ms. Shankar, alleging that Mr. Lenihan was not the biological father, filed the results of a paternity test. She then said he was just a sperm donor and filed a “Sperm Donor Agreement” which showed he did not want to be involved with the child. She also filed an email exchange between the father and his counsel which alleged the planning of a criminal act to remove the mother from the litigation. It became evident rather quickly that these documents were – in the words of the trial judge – “transparent and shocking forgeries created by the mother.” This was not the only forgery presented by Ms. Shankar. She also presented an 18-page affidavit from someone who – upon being called as a witness by Mr. Lenihan – said she did not know Ms. Shankar and had never signed the affidavit. [10] The mother’s two counsel – her tenth and eleventh – withdrew from the record upon realizing their unwitting participation in placing fraudulent evidence before the court. The trial judge granted Ms. Shankar’s request to continue the trial in-person. The day was a Friday. It concluded with witness planning, generous directions on self-representation and the sorting of details for that evening’s weekend transfer of M. to her father. [11] Thirty hours later, Ms. Shankar boarded a plane for Delhi, India, first class, with a transfer from Delhi to Bengaluru. She did not inform the court, the father or the child. She did not return. Her agent counsel attended on the following Monday, seeking leave for the mother to continue with the trial on Zoom from her family home in India. The trial judge granted the request and ordered her to provide travel and other particulars, including a copy of her return ticket. A return ticket was never provided. [12] The trial continued until December 11, 2020. Ms. Shankar never returned. [13] Due to the urgency of the situation, the trial judge gave oral reasons at the end of the trial, to be followed by more extensive written reasons. She said: Time is of the essence in this decision. There is a young child who has been living in a hotel for the past 20 days with a father who is a resident of Oregon, and a mother who has left the jurisdiction without a return ticket. I find that it is in [M.’s] best interest to transfer her residence from Ontario, Canada to Oregon, USA where she will have a stable residence, extended family supports, medical care and a good education. In doing so, I acknowledge that this change in residence will remove this case from Ontario jurisdiction. [14] The trial judge dispensed with the requirement of the mother’s consent for M. to travel.  She also dispensed with the need for the mother’s consent to issue a birth certificate, passport (both Canadian and American) and any other travel or identifying documents necessary for Mr. Lenihan’s return to Oregon with M. [15] As she said she would, the trial judge then provided more detailed written reasons reported at 2021 ONSC 330. FURTHER REASONS OF THE TRIAL JUDGE [16] The trial judge’s further reasons examined the extensive evidence and her findings in more detail, all with a view to the child’s best interests. She concluded that Ms. Shankar’s actions were entirely inconsistent with the child’s best interests. She had taken extreme steps to keep the father, the professionals, CAS and the OCL from knowing basic facts. She did not name the father on their daughter’s Statement of Live Birth or obtain a birth certificate. She asserted non-existent court Orders to professionals and the hospital and ignored Orders that did exist, particularly Orders for disclosure. She had a second child but did not disclose the father of her second child or his legal name to Mr. Lenihan, the Society, the OCL or the Court. She repeatedly threatened the father, his family and CAS workers. [17] The trial judge found that the mother had virtually no credibility because of her repeated lies and attempts at forgery. She was also, according to the trial judge, incapable of putting the child’s needs before her own. She went to extreme lengths to attack the father. [18] The trial judge found the father caring and competent, attuned to the child’s needs and genuinely willing to foster the mother-daughter relationship while being appropriately protective. Because of the allegations against him by the mother, he was extensively investigated by the Toronto and Peel CAS. He has been further vetted by a Children’s Lawyer. The OCL’s final Report detailed 18 substantive allegations that had been made by the mother against the father, all of which were determined to be false. The OCL found him to be a fully available and capable caregiver. His plan of care is sound and supported by his extended family. He offers the child a stable, healthy, and emotionally rich childhood. The trial judge said that he built a strong attachment with M. in the face of “unimaginable adversity”. She found that the father will meet the child’s medical, educational, and emotional needs. She had evidence from a pediatrician in Oregon who has agreed to continue the required follow-up for her care. The trial judge found that the father was “more than a capable parent”. [19] Against this background Mr. Lenihan moves for security for costs of Ms. Shankar’s appeal. SECURITY FOR COSTS [20] It is rarely appropriate to award security for costs in a child-related matter. This is a rare case. As the trial judge said: I say this gravely: but for cases of infanticide or abduction, Ms. Shankar’s actions in and outside of this litigation exceed any known to me in the caselaw. [21] I turn to the legal principles engaged by the motion in the context of these facts. (1) Applicable test [22] Security for costs may be ordered pursuant to r. 61.06(1) of the Rules of Civil Procedure , R.R.R. 1990, Reg. 194, when it appears that: (a) There is good reason to believe that the appeal is frivolous and vexatious, and that the appellant has insufficient assets in Ontario to pay the costs of the appeal; (b) An order for security for costs could be made against the appellant under r. 56.01; or (c) For other good reason, security for costs should be ordered. [23] The overarching principle is the justness of the order sought. (2) Frivolous and vexatious [24] There is good reason to believe that the appeal is frivolous and vexatious. [25] The appeal is readily recognizable as lacking merit and therefore frivolous. The trial judge made credibility and factual findings that were strongly supported by the evidence and the mother’s conduct throughout the proceedings, which I have summarized above. In particular, the trial judge carefully considered the child’s best interests and found that they were best served by being with the father in Oregon. Because of the mother’s conduct towards the father and his family, there was no basis to award joint custody. [26] Ms. Shankar’s appeal raises no errors of law. She challenges the trial judge’s findings of fact and her assessments of credibility. As I have set out, the trial judge gave detailed reasons for her findings. Under these circumstances there is little chance of overturning the result: see Henderson v. Wright , 2016 ONCA 89, 345 O.A.C. 231, at para. 19. [27] The mother’s conduct toward the father throughout has also demonstrated that there is good reason to believe that the appeal is vexatious. [28] Ms. Shankar’s motion material runs to approximately 160 pages single spaced. In her written and oral submissions, she makes outrageous claims against Mr. Lenihan including that he has “trafficked,” “abducted,” “illegally brought the child to the United States,” and is torturing M. and keeping her in a cage. She says he is a drug addict and homeless. She has already reported him to Child Protective Services in Oregon. She says that he may “sell” the child or give her up for adoption. She claims that she does not know if the child is alive or dead, then describes their regular Skype calls. [29] There is clearly good reason to believe that the appeal is frivolous and vexatious. (3) Insufficient assets in Ontario [30] Although the mother says she has returned to Ontario, her materials contradict this. Her costs submissions filed on February 5, 2021 repeatedly assert that she lives in India with her family. She states in those submissions that she had no choice but to leave Canada. She also claims to have no money. [31] During her oral submissions, she said she was in Ontario and working for the government. She has claimed an income of $95,000 per year. Her last filed financial statement, together with her representations throughout the proceedings, indicate that she has no assets available to pay the costs of this appeal. (4) Other good reason [32] There are other good reasons to require security for costs. [33] First, the mother engaged in deceitful and fraudulent conduct as found by the trial judge. [34] Second, the child is now in Oregon. As the trial judge recognized, future parenting disputes would be addressed there. [35] Finally, and most importantly: this appeal involves the wellbeing of a child who has been the subject of litigation her entire life. Her best interests must be considered in every step of the proceeding. Her best interests would not be served by a continuation of this proceeding. The impact of this litigation on the child cannot be ignored. As Poupore J., sitting as an appeal judge of the Divisional Court said: “security for costs [is] warranted because of the applicant’s motivation for the appeal, the cost to the parties and judicial resources used to date and the impact of the litigation on the children”: Morwald- Benvenides v. Benvenides , 2017 ONSC 3786, [2017] W.D.F.L. 3729, at para. 13. MOTHER’S MOTION FOR A STAY [36] Ms. Shankar included in her responding material a request that the child be returned to Ontario, thereby requesting a stay of proceedings. [37] The test for a stay of judgment pending appeal is the three-part test set out in RJR-McDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. The appellant has the burden to demonstrate that (1) there is a serious question to be determined on the appeal; (2) she will suffer irreparable harm if the stay is denied; and (3) the balance of convenience favours granting a stay. These three criteria are not watertight compartments. The court must decide whether the interests of justice call for a stay: Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), at p. 677. [38] I have already described why there is no serious issue to be determined on appeal. [39] The child is the one who will suffer serious harm. She is in Oregon with her father, grandparents and extended family. She has a pediatrician. On the other hand, there is no basis to conclude that the mother will suffer serious harm if the stay is not granted. [40] The balance of convenience favours the child remaining in Oregon with his father and his family. [41] For these reasons, I do not require responding material from the father for the mother has not met the test for a stay. CONCLUSION [42] The motion by Mr. Lenihan for security for costs is granted. Ms. Shankar is required to deposit $30,000 to the credit of the appeal by March 30, 2021. [43] Ms. Shankar’s motion for a stay pending appeal is dismissed. [44] Costs of these motions are payable by Ms. Shankar to Mr. Lenihan fixed at $6,500 inclusive of HST and disbursements. “M.L. Benotto J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Lesko v. Lesko, 2021 ONCA 369 DATE: 20210602 DOCKET: C68396 Strathy C.J.O., Brown and Miller JJ.A. BETWEEN Kelly Sue Lesko Applicant (Respondent) and David Joseph Lesko Respondent (Appellant) Gary S. Joseph and Stephen P. Kirby, for the appellant Peter M. Callahan, for the respondent Heard: February 12, 2021 by video conference On appeal from the orders of Justice Michael R. Gibson of the Superior Court of Justice, dated May 19, 2020, June 25, 2020, and August 7, 2020. BROWN J.A.: I. overview [1] The appellant, David Joseph Lesko (“David”), and the respondent, Kelly Sue Lesko (“Kelly”), started to live together in September 1998 and married on August 23, 2003. They have two children. They legally separated on December 31, 2014 but continued to live together thereafter as a family until the matrimonial home at Valleyview Court in Oakville was sold in November 2015. [2] By the time of the trial, the parties had settled many issues. The remaining issues were adjudicated by the trial judge, which resulted in his Divorce Order dated May 19, 2020 (the “Order”). [3] David appeals three parts of that Order: [1] (i) awarding an equalization payment to Kelly. That award resulted from the trial judge’s finding that based on her unjust enrichment claim Kelly had a 50% interest in a property on Taplow Crescent, Oakville that David had acquired prior to the date of marriage. That finding permitted Kelly to deduct 50% of the marriage date value of that property in her net family property calculation; (ii) fixing David’s income at $208,000.00 for purposes of support calculations; and (iii) disallowing David’s claim of a credit against retroactive support obligations of approximately $48,000 in expenses that David contends he incurred between the date of legal separation and the sale of the matrimonial home. [4] For the reasons set out below, I am not persuaded that the trial judge erred in his conclusions and I would dismiss David’s appeal. For ease of reference, I propose to deal with the relevant facts under each of the issues on appeal. II. STANDARD OF REVIEW [5] Orders resolving financial disputes in family law cases are entitled to significant deference. An appeal court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey , [1999] 2 S.C.R. 518, at para. 12. III. FIRST ISSUE: the TREATMENT OF THE TAPLOW PROPERTY Background facts [6] In June 1998, David purchased Taplow – a “fixer upper” property – through power of sale proceedings for $164,000. David financed the purchase through a $41,000 down payment and a $123,000 mortgage. By the time of purchase, Kelly and David had been dating for over a year. They decided to move in together once Taplow had been made habitable, which was accomplished by September 1998. [7] Kelly did not contribute financially to the purchase of Taplow nor was her name put on title. However, starting in August 1998 she contributed $500 a month to cover the couple’s expenses, which included a monthly mortgage payment of $831.35. Those contributions continued until a few months before their first child was born in 2004. [8] Taplow was gutted from top to bottom, and extensive renovations were made to the property between 1998 and the property’s sale in 2007, about four years after Kelly and David married. Since David and Kelly both worked full time, the renovations were done during evenings and on weekends. David completed most of the physical renovations, while Kelly took charge of housekeeping and home maintenance. [9] When Taplow was sold in 2007, David and Kelly put the full sale proceeds into their new Valleyview Court house, another “fixer upper” in need of renovation. As with Taplow, they renovated their new house with a view to reselling it for a profit and investing the sale proceeds into yet another new property. Their separation occurred before they could fulfill this plan. [10] In her Application, Kelly requested a declaration that she had a 50% beneficial interest in Taplow at the date of marriage on the basis of constructive trust as she had contributed to the acquisition, preservation, maintenance, and improvement of the property in both money and money’s worth. The trial judge awarded Kelly a half-interest in Taplow on the date of marriage. David’s position on appeal [11] David submits the trial judge erred in awarding Kelly an interest in Taplow as there was no unjust enrichment in this case. The trial judge never considered or applied the elements of unjust enrichment in his reasons and, without this clear finding, it was inappropriate to consider whether there was a joint family venture. Moreover, if the trial judge had properly considered the test for unjust enrichment, he should have concluded that Kelly’s claim failed because she was simply in a tenant-landlord type of relationship with David prior to their marriage. During that time, she provided her labour without any expectation of compensation . [12] Further, there was no joint family venture in respect of Taplow. The factors outlined in Kerr v. Baranow , 2011 SCC 10, [2011] 1 S.C.R. 269, do not support the trial judge’s finding. Even if there was a joint family venture, Kelly’s contributions did not entitle her to a half interest in Taplow. [13] Finally, the trial judge erred when he failed to consider whether the Family Law Act , R.S.O. 1990, c. F.3 (“ FLA ”) equalization scheme remedied any unjust enrichment arising from the relationship. Governing legal principles [14] If a party establishes the three elements of a claim for unjust enrichment – enrichment, corresponding deprivation, and lack of juristic reason – the remedy can take one of two forms: a personal (or monetary) award or a proprietary award: Kerr , at paras. 46, 55; Moore v. Sweet , 2018 SCC 52, [2018] 3 S.C.R. 303, at para. 89. The framework in which a court should assess the appropriate remedy was summarized by this court in Martin v. Sansome , 2014 ONCA 14, 118 O.R. (3d) 522, at para. 52: In this way, the framework established in Kerr requires the court to ask the following questions: 1) Have the elements of unjust enrichment – enrichment and a corresponding deprivation in the absence of a juristic reason – been made out?; 2) If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?; 3) If the answer to question 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis?; and, 4) If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest? [15] A monetary award is the default remedy and should suffice in most cases to remedy the unjust enrichment: Kerr , at para. 47; Moore , at para. 89. In Kerr , the Supreme Court of Canada clarified that monetary awards for unjust enrichment could be quantified in two ways. First, a monetary award may be calculated on a quantum meruit or “fee-for-service” basis – the value of the claimant’s uncompensated services. Second, a monetary award may be calculated on a “value survived” basis, by reference to the overall increase in the couple’s wealth during the relationship: Kerr , at paras. 49 and 55. [16] The concept of joint family venture helps courts to quantify the monetary remedy where a claim of unjust enrichment has been made out. Where the evidence shows that the domestic arrangements under which the unmarried parties have lived amounted to a joint family venture, monetary damages should be calculated on the value survived basis, namely on the basis of a share of the wealth generated in the joint family venture proportionate to the claimant’s contributions: Kerr , at para. 102. If there was no joint family venture, monetary damages calculated on a quantum meruit basis are likely appropriate. [17] The proprietary remedy of constructive trust in a property requires a claimant to show two things: that monetary damages are inappropriate or insufficient to remedy the unjust enrichment; and the claimant’s contribution was linked to the acquisition, preservation, maintenance, or improvement of the disputed property. The required link has been variously described as demonstrating a “sufficiently substantial and direct” link, a “causal connection”, a “nexus” or a “clear proprietary relationship”: Kerr , at paras. 50-51, 78; Moore , at para. 91. The extent of the constructive trust interest should be proportionate to the claimant’s contributions: Kerr , at para. 53; Moore , at para. 91. Analysis [18] I find no reversible error in the trial judge’s conclusion that Kelly established a claim for unjust enrichment which entitled her to deduct 50% of the marriage-date value of Taplow for purposes of the net family property calculation under the FLA . [19] Although the trial judge’s reasons on this issue are terse and would have benefited from further elaboration and explanation, they disclose that he made the following findings: (i)      The evidence “clearly” demonstrated that the parties jointly planned to purchase the Taplow property, renovate it, and sell it for profit: at para. 53; (ii)      Kelly contributed extensively to the acquisition, preservation, maintenance and improvement of the property in both money and other contributions: at para. 55; (iii)     David would be unjustly enriched if he were to receive the benefit of Kelly’s efforts without recognition of them: at para. 56; (iv)     A clear connection existed between Kelly’s contributions and the property sufficient to impose a constructive trust in her favour: at para. 56; and (v)     The parties owned the property equally on the date of their marriage, with the result that each could deduct 50% of the net value of the property on that date for the purposes of calculating their net family property: at para. 57. [20] Ample evidence supported findings (i) and (ii): in the months leading up to their co-habitation, Kelly helped David select a property that was a “fixer-upper”; following its purchase, Taplow was gutted; they moved in several months after the initial renovations made it habitable; the full renovation of the property consumed the next five years; while David completed the physical renovations, Kelly managed their household so that he could devote his free time to the renovations; she cooked, cleaned, did the laundry, gardened, landscaped, and generally maintained the house; she also assisted with the selection of fixtures, tiles, flooring, and backsplashes, among other furnishings; and Kelly contributed $500 a month to their household expenses, an amount that covered more than half the monthly mortgage payment of $831.35. [21] That evidence also supported the trial judge’s finding (iv) that a clear connection existed between Kelly’s contributions and the property. [22] However, the trial judge did not expressly address arguments David made about why Kelly had not made out a claim for unjust enrichment, including the presence of a juristic reason for retaining the benefit. The trial judge should have. However, on the simple factual record before us I see no prejudice from the trial judge’s failure to do so. The answers to the question “why” the trial judge was satisfied that Kelly had established her claim to unjust enrichment are clear in the record: R. v. G.F. , 2021 SCC 20, at para. 70. [23] David first argued that a contractual reason existed which entitled him to retain the benefits conferred by Kelly. He contended that from the time they moved into Taplow in September 1998 until their marriage five years later in August 2003, their relationship was that of landlord and tenant. David contended that the $500 Kelly contributed each month from the time they started to co-habit was rent or, as he put it in cross-examination: “Um, she paid $500 a month I guess rent”. At trial, a receipt dated August 10, 1998 for $500 that David had given to Kelly was filed as an exhibit. On the receipt David had noted: “August 98 Rent”. David also made much of the fact that Kelly agreed on cross-examination that it was reasonable to suggest that she had given David post-dated cheques for her “rent”. [24] When the evidence is viewed as a whole, there was good reason why the trial judge did not accept this argument by David. Admissions made by David during his cross-examination belied his characterization of their relationship as one that was landlord and tenant-like. David acknowledged that he and Kelly moved into a property that was barely livable and required extensive renovations, hardly a scenario in which one party would pay “rent”: Q. So she was all in, and you were all in too. Buying this crappy house, fixing it up, fixing it up over, and living in it while you were fixing it up – she was in on all of that. And so were you. A. Yeah. I suppose. Q. Yeah, young people do crazy things like that. And you did it together. Right? A. I guess, yeah . Q. Yeah. And she lived in that Taplow house with you while it was basically under construction? A. Yeah. I mean the main floor was done, but the – except other than the kitchen but that was you know another issue, but the basement was.... (Emphasis added.) [25] David also acknowledged that Kelly contributed to their ability to proceed with and complete the renovations at Taplow: Q. You said to this court sir, that you did the next phase of the renovation when you could afford it? A. Yes. Q. And Kelly contributed to the savings that led to you being able to afford it? A. She contributed to the monthly you know maintenance and operational household expenses. Absolutely. Q. And she reduced your monthly expenses because she had an income and she was contributing to the household? A. Yeah. Q. Yeah. She was keeping things together to allow you to do the physical work? A. Um, yeah, I don't know because she also worked at nights too, so. Q. Yeah, that’s right A. Yeah. Q. ...because that’s what it took to keep this whole project afloat? A. Sure. Q. To keep money coming in so that you would have food on the table while you were still building this home? She had to do that. You needed extra money. A. Yeah, sure. Absolutely. All money helps. [26] David’s second argument was that even if there was unjust enrichment, the trial judge should have considered whether the FLA ’s equalization scheme remedied the unjust enrichment. David emphasizes that the sale proceeds from Taplow were placed into the couple’s next home, in which they held title as joint tenants, thereby enabling Kelly to participate in any future appreciation of value. [27] I see no merit to this argument. The FLA ’ s equalization scheme governs asset accumulation during marriage: McNamee v. McNamee , 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66; Martin , at para. 66. While the equalization scheme will likely resolve most unjust enrichment claims resulting from a marriage, a claim that one party was entitled to an interest in a property existing at the date of marriage based on unjust enrichment arising prior to marriage requires analysis under the common law framework outlined in Kerr . Consequently, the trial judge was not required to consider Kelly’s entitlements that would arise post-marriage date under the FLA when considering her unjust enrichment claim based on events occurring before and in respect of an asset existing at the date of marriage. [28] On appeal, David also argues that the mutual conferral of benefits that occurred during the pre-marriage stage of the relationship amounted to a juristic reason for his enrichment and Kelly’s deprivation. While mutual benefit conferral can be taken into account at the juristic reason stage of the analysis, its use at that stage is limited to providing relevant evidence of the parties’ reasonable expectations that could support the existence of a juristic reason outside the settled categories, such as a contractual relationship: Kerr , at paras. 109 and 115. As the trial judge pointed out at para. 53, the evidence in the present case pointed in a different direction. After their marriage in 2003, David and Kelly sold the Taplow property and used the proceeds to buy another “fixer-upper”, this time with the title registered in both their names. Accordingly, the evidence as a whole showed that David and Kelly arranged their affairs to acquire “fixer-uppers”, renovate them, and then sell them at a profit, with both parties expecting to benefit from their mutual efforts. [29] To summarize the analysis to this point, I see no reversible error in the trial judge’s findings (i) to (iv) described in para. 19 above that supported his conclusion Kelly was entitled to a remedy in respect of her contributions to the renovation of the Taplow property on the basis of unjust enrichment. [30] That leaves for consideration the trial judge’s finding (v) that David and Kelly owned the Taplow property equally on the date of their marriage, with the result that each could deduct 50% of the net value of the property on that date for the purposes of calculating their net family property. Having found that Kelly had made out her claim for unjust enrichment, the trial judge did not then consider whether monetary damages would suffice to address the unjust enrichment, which Martin indicates is the next step in the analysis. Given the way the parties framed the issues for the trial judge’s determination, it is understandable that he did not consider the sufficiency of a monetary award. [31] The remedy Kelly sought for the unjust enrichment was not a monetary award in the trial judgment or a proprietary interest in an existing asset. Instead, Kelly sought a remedy that would enable her to include part of the value of Taplow at the date of marriage in her net family property statement thereby recognizing the unjust enrichment David had received. [32] On his part, David did not argue that monetary damages would provide Kelly with an adequate remedy; he sought to prevent Kelly from obtaining any remedy that would permit her to claim part of the marriage date value of Taplow in her net family property statement. On appeal, David has not argued that the trial judge erred by failing to consider a monetary award; instead, he argues that the trial judge erred by allowing Kelly to include 50% of the marriage date value in her NFP statement. [33] Unfortunately, the trial judge gave no reasons for his conclusion that fairness required Kelly to receive a 50% interest in Taplow for her contributions. As stated in Kerr at para. 53: The extent of the constructive trust interest should be proportionate to the claimant’s contributions. Where the contributions are unequal, the shares will be unequal… As Dickson J. put it in Rathwell , “The court will assess the contributions made by each spouse and make a fair, equitable distribution having regard to the respective contributions.” (Citations omitted.) [34] Unlike the FLA , which presumes that couples are entitled to an equal share of net family property accumulated during marriage, there is no presumption that a finding of unjust enrichment entitles a claimant to a half interest in the property. The extent of the claimant’s interest must be proportionate to their contributions: Kerr , at para. 102. When the contributions are unequal, the shares should be unequal: Kerr , at paras. 84-85. [35] I have concluded that on the record before us, the trial judge’s finding that Kelly was entitled to deduct 50% of the net value of the Taplow property on the date of marriage for purposes of calculating her net family property is a reasonably fair and equitable remedy. It is clear from the evidence that prior to their marriage Kelly and David were engaged in the joint project of renovating the Taplow “fixer-upper” for their mutual benefit. As well, the trial judge’s finding is supported by the evidence that David applied the full proceeds from the sale of Taplow to acquire the Valleyview Court “fixer upper” and put Kelly on title as co-owner, without any separate financial contribution by Kelly. Although that purchase took place four years after the date of marriage, it stands as a powerful recognition by David of Kelly’s equal contribution to the success of the Taplow renovation, which enabled them to move up the economic ladder to a higher-end house. Accordingly, I would not interfere with the trial judge’s finding on this issue. IV. SECOND ISSUE: DAVID’S INCOME FOR SUPPORT PURPOSES Factual background [36] David’s income for support purposes was contested at trial. David earned his living through his successful painting business, Mr. Paint. David and Kelly each hired experts to review David’s personal and corporate financial information and opine on David’s annual income. Their opinions were relatively similar, with Kelly’s expert finding a slightly higher income than David’s expert: Year 2013 2014 2015 2016 2017 Kelly’s Expert $ 147,605 $ 178,637 $ 105,550 $ 111,464 $ 207,904 David’s Expert $92,626 $140,103 $ 87,379 $ 115,706 $ 193,816 [37] David argued that his income for support purposes should be set at $132,300, based on the average of his income in 2015, 2016, and 2017. He contended that his income in 2017 was an outlier and that the loss of a client in 2018 had resulted in a significant reduction in his earnings. Analysis [38] I would not interfere with the trial judge’s decision to use David’s 2017 income for support purposes, rather than a three-year average. [39] The starting point for determining income for both child and spousal support is ss. 16 to 20 of the Federal Child Support Guidelines , S.O.R./97-175. [2] Section 16 sets a presumption that a spouse’s most recent [3] annual income shall be determined from the sources of income set out in Revenue Canada’s general tax return Line 150 income: Punzo v. Punzo , 2016 ONCA 957, 90 R.F.L. (7th) 304, at para. 19. Section 17(1) permits a court to look over the last three years in the following circumstances: 17(1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [40] Accordingly, “the Guidelines rely on the more recent past to predict the near future and do not adopt averaging as a default methodology:” Mason v. Mason , 2016 ONCA 725, 132 O.R. (3d) 641, at para. 138. The language in s. 17 is permissive, not mandatory. The trial judge was under no obligation to average David’s income: Decaen v. Decaen , 2013 ONCA 218, 303 O.A.C. 261, at para. 50. [41] Furthermore, the evidence at trial indicated that David’s suggested three-year averaging of his annual income at $132,300 would significantly understate his actual income. On cross-examination, David conceded that based on his current mortgage, tax, and insurance costs alone, he would have to be earning “at least” $160,000 a year to support those expenses. As well, as the trial judge noted David did not call at trial a representative of the client which Mr. Paint lost in 2018. [42] Finally, I see no basis for interfering with the trial judge’s decision to exclude David’s 2018 T4 Statement of Remuneration Paid and Mr. Paint’s unaudited 2018 Financial Statements. In his reasons on the voir dire , the trial judge noted that David’s counsel conceded that the two documents were “not essential to the case” and their only value was that the corporate revenue report indicated that 2017 was an “exceptional year” and revenues fell in 2018. The trial judge stated that he was not satisfied that David took all reasonable steps to expedite the production of the T4 and company financial statements knowing that the matter was scheduled for trial at the April 2019 sittings. He further held that the document’s late disclosure prejudiced Kelly as her expert did not have sufficient time to consider them. The trial judge concluded that the “prejudice accruing from the admission of these documents would outweigh their probative value” and, as a result, he would not admit them into evidence: Family Law Rules , O. Reg. 114/99, ss. 1(8)(d) and (8.1). It was within the trial judge’s discretion to exclude that evidence on the ground that its prejudicial effect outweighed its probative value: Gray v. ICBC , 2010 BCCA 459, 326 D.L.R. (4th) 564, at para. 1. [43] For these reasons I would not interfere with the trial judge’s decision to use David’s 2017 income for support purposes. Of course, if David’s income materially declines in the future, he may bring the appropriate motion to change. V. THIRD ISSUE: DAVID’S CLAIM FOR POST-SEPARATION EXPENSES Factual background [44] At trial, Kelly and David both sought reimbursement for family-related expenses, most of which were incurred between the date of their legal separation on December 31, 2014 and the sale of the matrimonial home in November 2015. As mentioned, the family continued to reside in the house until its sale. [45] Kelly sought reimbursement from David for his share of expenses charged to the family Visa card after separation relating to home maintenance, Mr. Paint expenses, medical, family vacation, children’s activities, and interest charges. The trial judge granted this claim writing simply: “The amount owing by [David] in this regard would be $12,285.59.” [46] David sought reimbursement for half of the $48,160.68 in expenses he testified he had incurred in respect of the family home from January 1, 2015 until the house was sold in November 2015. In disposing of this claim, the trial judge wrote, in full: “ This was not advanced in his Answer. [David] should not be entitled to an adjustment of the household expenses that he claimed.” [47] David submits that two errors infect that conclusion by the trial judge: (i)      The trial judge applied a “double standard” in considering the parties’ reimbursement requests, disallowing David’s because he did not plead it in his Answer but allowing Kelly’s although she had not included them in her Application; (ii)      The trial judge erred in law by failing to give David credit against his retroactive support obligations for payments he made to third parties on a support recipient’s behalf, namely Kelly and their children. Analysis [48] I do not accept David’s first submission that Kelly failed to advance a reimbursement claim in her Application. In para. 16 of her Application, Kelly pleaded: “The Applicant is in need of funds to support herself and the children and to pay the credit card debt that the parties’ accumulated after separation. The Applicant has requested that [David] consent to the release of a portion of the sale proceeds, however, [David] has refused this request with no reasonable explanation.” Kelly squarely put the issue on the table from the start of the litigation. [49] As to David’s second submission, given the thinness of the trial judge’s reasons on this issue a consideration of the record is required to ascertain whether it provides a clear answer: G.F. , at para. 70. [50] David and Kelly agreed on a legal separation date of December 31, 2014. However, they and their children continued to live together in the family home until it was sold in November 2015. Kelly testified that during 2015 she and David carried on with the “status quo”, “playing like [they] were together” as they did not want their children to know about the separation until the house was sold.  As to their understanding about the responsibility for family expenses following the legal date of separation but before the sale of the house, Kelly testified on cross-examination as follows: Q. Okay. And so the same principle, just so I understand – I’m not belabouring the point, so the same principle would apply to the family vacation in Florida, the Sabres game; in other words, you were living in the same house, you hadn’t told the kids yet, and there was no expectation that there was going to be some formal accounting of how money was spent. A. All we were doing as we always had done – I was still buying the groceries, I was still – my role was still - hadn't changed... Q. Right. A. …since we separated, so. [51] Prior to the date of separation, David had made all the payments on the family Visa card. After the date of separation, David only made occasional payments on the card even though family expenses, including expenses related to the family home, continued to be charged to the card. David explained that notwithstanding his pre-separation payment of all charges to the card, he stopped paying because technically the Visa card was in Kelly’s name and he just had a secondary user’s card. [52] As to his own claim against Kelly for 2015 expenses in respect of the family home, David only advised Kelly a few weeks before the April 2019 trial that he would be seeking reimbursement for them. [4] He explained that he only decided to claim reimbursement when he realized that Kelly was seeking retroactive child and spousal support. However, cross-examination revealed that position to be completely unfounded. David admitted that Kelly’s September 2016 Application clearly stated she was seeking retroactive support. [53] At trial, Kelly did not dispute that David had paid most of the $48,160.68 in expenses he was claiming but pointed out that his claim for reimbursement was a departure from the status quo regarding the management of the family’s affairs that had prevailed during 2015 until the house was sold. [54] By the time of the trial, over three years had elapsed between the time David had incurred the expenses and his 11th hour reimbursement claim just prior to trial. He clearly knew from Kelly’s September 2016 Application that she was asserting claims for retroactive child and spousal support, yet he included no claim for any reimbursement of expenses in his November 2016 Answer. Prior to trial, David only paid monthly child support of $250, notwithstanding his position at trial that his income during that period of time averaged at least $132,300. Further, his claim for reimbursement of post-separation expenses marked a departure from the parties’ “ status quo ” approach between the date of legal separation and the sale of the house, an approach adopted in the interests of their two young children. The expenses for which David was seeking reimbursement benefitted all members of the family, including himself, as he continued to live in the family home until it was sold. Given those circumstances, I see no error in principle, or unreasonableness in the result, of the trial judge exercising his discretion to deny David his 11th hour, three-year old claim for expenses incurred during 2015. Accordingly, I do not give effect to this ground of appeal. VI. disposition [55] For the reasons outlined above, I would dismiss the appeal. Based on the agreement of the parties at the hearing, I would award Kelly her costs of the appeal fixed at $15,000, inclusive of disbursements and applicable taxes. [56] At the end of oral submissions, Kelly’s counsel requested an order that the parties’ real estate solicitor release the remaining sale proceeds held in trust in accordance with these reasons. David’s counsel did not object to that request. Accordingly, an order shall go that the remaining funds held in trust be distributed to the parties in satisfaction of the amounts awarded in the trial judge’s Order and the costs of this appeal. Released: June 2, 2021 “G. R. S.” “David Brown J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. B.W. Miller J.A.” [1] David’s factum also argued that the trial judge erred by making the August 7, 2020 order. However, during oral argument, David’s counsel advised the court that this issue is now moot and effectively settled. Kelly’s counsel agreed. Accordingly, there is no need to comment on the merits of this argument. As well, David requested that this court re-visit the costs awarded below only in the event he succeeded on the appeal, which he has not. [2] Section 6.1 of the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) states that “the starting point for the determination of income under the Spousal Support Advisory Guidelines is the definition of income under the Federal Child Support Guidelines .” [3] Section 2(3) of the Federal Child Support Guidelines states that: “Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.” [4] March 18, 2019 Trial Scheduling Endorsement Form.

COURT OF APPEAL FOR ONTARIO CITATION: Lima v. Kwinter, 2021 ONCA 47 DATE: 20210126 DOCKET: C67269 Doherty, Hoy and Jamal JJ.A. BETWEEN David Lima Applicant (Respondent/Appellant in Cross-Appeal) and Alfred M. Kwinter, Alfred Kwinter Professional Corporation and 1736314 Ontario Inc. carrying on business as Singer Kwinter Respondents (Appellants/Respondents in Cross-Appeal) Chris G. Paliare and Lauren Pearce, for the appellants/respondents in cross-appeal Peter I. Waldmann, for the respondent/appellant in cross-appeal Heard: In writing (submitted to a panel on September 17, 2020) On appeal from the judgment of Justice Cynthia Petersen of the Superior Court of Justice, dated July 3, 2019 with reasons reported at 2019 ONSC 4064. Doherty J.A.: I [1] This is an appeal brought by the law firm, Singer Kwinter (“SK”), and a cross-appeal brought by their former client, Mr. David Lima.  SK represented Mr. Lima in an action brought against his insurer and his insurance broker. The appeal and cross-appeal are from an assessment of SK’s fees. That assessment proceeded by way of an application before a Superior Court judge. In addition to appealing the assessment, both SK and Mr. Lima also seek leave to appeal the costs order made by the application judge. [2] I would allow SK’s appeal, but only to the extent of eliminating the application judge’s recalculation of the disbursements to account for what she believed to be a double-counting of certain disbursements. I would dismiss Mr. Lima’s appeal from the assessment. [3] I would dismiss SK’s application for leave to appeal the costs ordered on the application. I would grant Mr. Lima leave to appeal, allow the appeal and vary the costs order in his favour to $20,000. II background facts [4] Mr. Lima’s home and other buildings on his property burned down in February 2011. Investigation revealed the fire was deliberately set. Mr. Lima’s insurer suspected him. [5] In the summer of 2011, frustrated with the progress of his insurance claim, Mr. Lima decided to retain SK. [1] SK, a well-known plaintiffs’ litigation firm, has enjoyed considerable success taking lawsuits to trial against insurers who have denied coverage on fire insurance policies and alleged arson. [6] Mr. Lima could not fund what was potentially long, complicated and expensive litigation on an ongoing basis. He and SK negotiated a contingency fee agreement (“CFA”). SK initially proposed a fee equal to one-third of all monies ultimately paid by any defendants. Mr. Lima verbally agreed with this proposal, but shortly afterwards, suggested to Mr. Singer the fee was too high. Mr. Singer agreed to renegotiate. [7] In September 2011, Mr. Lima signed a retainer agreement with SK. The retainer provided for payment to SK, calculated in two ways. SK was to receive a fee based on a percentage of any amount recovered. Mr. Lima agreed to pay a fee equal to 20 percent of all claims paid by the defendants up to $500,000, and 10 percent of all claims paid in excess of $500,000. In addition to the percentage fee, the CFA also entitled SK to costs paid by the defendants. The relevant provision read: In addition to the above-noted sums, the balance of our fees will be paid by the defendant known as partial indemnity costs. This amount is in addition to the amounts paid by you noted above. [8] In October 2011, SK commenced an action against the insurer and the insurance broker. In addition to claiming damages against the insurer of over $5 million for negligence and breach of contract, Mr. Lima sought punitive damages based on the insurer’s bad faith denial of coverage. As against the broker, Mr. Lima claimed damages of $2 million, alleging the broker failed to give him proper advice and arrange adequate or appropriate insurance coverage. [9] The insurer denied coverage in its statement of defence, alleging Mr. Lima had either started the fire or caused someone else to start the fire. The insurer and the broker both maintained the losses claimed by Mr. Lima were grossly exaggerated. The insurer also counterclaimed against Mr. Lima, seeking $1.7 million in damages for monies the insurer said it was obliged to pay to mortgagees under the terms of the policy. [10] The action proceeded through discoveries, three pre-trials, and a mediation. In May 2015, the broker agreed to settle the claims made against it with a payment to Mr. Lima of $150,000 “all in”. The insurer settled about a month later in June 2015 with an “all in” payment of $1,250,000. Neither settlement attributed any part of the settlement amounts to any specific head of damages, or to costs. [11] Mr. Lima directed that certain payments be made directly to third party creditors. The remainder of the settlement funds was paid into SK’s trust account. SK billed Mr. Lima $50,000 in respect of the settlement with the broker. SK unilaterally attributed $20,000 of that amount to costs. The remaining $30,000 represented SK’s fees calculated in accordance with the percentages set out in the CFA. SK’s bill to Mr. Lima showed $33,900 ($30,000 in fees, plus $3,900 HST) paid to SK from the settlement funds deposited into SK’s trust account by the broker. Mr. Singer testified SK forgave the remaining amount owing on fees  as part of its final accounting with Mr. Lima after the settlement with the insurer. [12] In respect of the funds paid by the insurer into SK’s trust account, SK took fees of $338,390.04, of which it unilaterally attributed $150,000 to costs, with the remainder representing the fees owed to SK under the percentages set down in the CFA. [2] [13] In total, SK took fees of $372,290.04 ($33,900 plus $338,390.04). In addition, disbursements of $101,994.34 were paid out of the settlement funds. III the application [14] About a year after receiving SK’s final account, Mr. Lima served a Notice of Assessment under the Solicitors Act , R.S.O. 1990, c. S.15 . After a false start before an assessment officer, Mr. Lima commenced an application in the Superior Court in July 2017, challenging the legality of the CFA. The application was eventually heard in late January and early February 2019. [15] On the application, SK conceded that it knew when it entered into the CFA with Mr. Lima the agreement contravened s. 28.1(8) of the Solicitors Act , and was unenforceable by virtue of s. 28.1(9). [3] According to SK, it was commonplace in 2011 to negotiate contingency fee agreements, like the one negotiated with Mr. Lima, and to fail to apply for, or obtain, the judicial approval required under s. 28.1(8). [4] [16] SK argued, that because the CFA was unenforceable, its fees should be calculated on a quantum meruit basis. SK further submitted, that in performing that quantum merit assessment, the court must look at Mr. Lima’s reasonable expectations as one of the relevant factors. SK contended Mr. Lima’s reasonable expectations were reflected in the terms of the CFA he had agreed to with SK. SK contended the amount it had billed Mr. Lima pursuant to the CFA was reasonable and justifiable on a quantum meruit analysis. [17] On the application, Mr. Lima did not argue that SK should be required to return all of the funds it had taken as fees as a consequence of deliberately entering into an unenforceable contingency fee agreement. Instead, Mr. Lima submitted SK’s bills should be reduced by subtracting the amounts SK had arbitrarily allocated to costs in the settlement with the insurer and the broker ($170,000). Mr. Lima argued those arbitrary figures were “made up numbers” and amounted to double-counting, having regard to the fees SK had taken as a percentage of the settlement funds. Mr. Lima insisted he had never been told that SK would be entitled to costs paid by the defendant on top of the percentage fee he had agreed to pay. Finally, Mr. Lima submitted there should be other specific deductions from the fees charged to reflect duplications and excessive charges. [18] Prior to the application, counsel for Mr. Lima and SK agreed disbursements were not in issue and did not have to be proved. The application proceeded on the basis that the amount claimed for disbursements was not in issue. [19] The application judge agreed that SK’s fees should be assessed on a quantum meruit basis. After referencing the many factors identified in Cohen v. Kealey and Blaney , [1985] O.J. No. 160 (C.A.), the application judge proceeded to consider each factor at length. Ultimately, she concluded SK was entitled to fees in the amount of $328,546.41 rather than the $372,290.04 SK had claimed. The application judge ordered the difference, $43,743.63, returned to Mr. Lima. [20] Despite the parties’ agreement that disbursements were not in issue, and the absence of any submissions from counsel, the application judge, based on her own review of the billing documents, concluded SK had inadvertently double-billed disbursements in the amount of $16,100. She ordered repayment of that amount by SK to Mr. Lima. In total, the application judge awarded judgment to Mr. Lima in the amount of $59,843.63, plus pre-judgment interest. IV the issues [21] Both parties advanced a number of grounds of appeal. Their arguments raised three questions: · Did the application judge err in failing to eliminate or at least substantially reduce SK’s fees on account of SK entering into a CFA it knew to be unenforceable under the Solicitors Act ? · Assuming the application judge was correct in assessing SK’s fees on a quantum meruit basis, did she make legal errors or material factual errors in her analysis? · Should the application judge have reviewed the amounts attributed to disbursements, given the position of the parties on the application, and if so, did she correctly hold $16,100 in disbursements had been inadvertently double counted? A. should sk’s deliberate non-compliance with the solicitors act have disentitled sk to any fees or, alternatively resulted in a substantial reduction in sk’s fees? [22] The CFA crafted by SK required Mr. Lima to pay a percentage fee based on the amount he recovered and, in addition, authorized payment of costs to SK. Sections 28.1(8) and (9) of the Solicitors Act , when read together, provide that a contingency fee agreement, which includes both a fee payable under the agreement and an amount “arising as a result of an award of costs or costs obtained as part of a settlement”, is unenforceable unless that agreement is approved by a justice of the Superior Court. Approval is granted only if the lawyer and client make a joint application for approval of the contingency fee agreement, and satisfy the justice there are “exceptional circumstances” warranting including payment of costs to the lawyer as part of the fees owed under a contingency fee agreement. SK knew an application to the court for approval was necessary, but did not make any application. SK did not tell Mr. Lima court approval was required. [5] [23] Sections 28.1(8) and (9) are consumer protection legislation. The requirements of a joint application for approval and judicial approval predicated on exceptional circumstances protect clients from excessive fees and fees determined, according to contractual terms, lacking in transparency and predictability: Almalki v. Canada (Attorney General) , 2019 ONCA 26, at paras. 47-50. The lack of transparency is apparent from a review of the CFA entered into by SK and Mr. Lima. Under the terms of that agreement, it was left to SK to unilaterally attribute an amount from the settlement amounts to costs. Mr. Lima could not know, from the terms of the CFA, what amount from any settlement SK would attribute to costs paid by the defendant, and therefore ultimately payable to SK as part of its total fee. [24] With the CFA rendered unenforceable by the Solicitors Act , the question becomes how should SK’s fees be assessed? Counsel for Mr. Lima on appeal submits SK’s reliance on a CFA it knew to be contrary to the Solicitors Act and unenforceable should disentitle SK to any payment for the services it provided, or alternatively should result in a substantial reduction of any amount otherwise payable to SK for those services. Counsel argued that SK’s blatant disregard of the constraints of the Solicitors Act resulted in a breach of its fiduciary duty to Mr. Lima and an improper removal of Mr. Lima’s funds from SK’s trust account. Counsel stresses SK knew all along the CFA contravened the Solicitors Act and could not be enforced. He submits that SK’s deliberate and knowing breach of the Solicitors Act distinguishes this case from cases like Tri Level Claims Consultants Ltd. v. Koliniotis (2005), 257 D.L.R. (4 th ) 297 (Ont. C.A.), at para. 40, in which this court allowed recovery of fees on a quantum meruit basis, after a paralegal unknowingly entered into an unenforceable contingency fee agreement. [25] I cannot accept Mr. Lima’s submission for several reasons. The assessment process is intended to provide a relatively expeditious manner in which to determine a reasonable fee for legal services provided. Allegations of misconduct against a lawyer, which have no impact on the value of the legal service provided, are not properly resolved in the context of an assessment application. Mr. Lima’s argument would introduce a punitive element into the assessment process. He invites the court to “punish” SK for non-compliance with the Solicitors Act by eliminating or reducing his fee. Punishment is not normally a goal of civil litigation. If SK should be punished, that task must be left to the state or the Law Society. [26] Mr. Lima also seeks a windfall. He would have the court make an order allowing him to avoid reasonable payment for legal services that resulted in significant financial benefit to Mr. Lima. The approach urged by Mr. Lima, which would allow him to reap the benefits of the settlements achieved by SK’s efforts without paying a fair and reasonable fee, goes well beyond any legitimate consumer protection goal, and strikes me as the very definition of unjust enrichment. [27] Mr. Lima’s contention that SK’s breach of the Solicitors Act should disentitle SK to reasonable fees for services finds no support in the language of the relevant provisions in the Solicitors Act . Section 28.1(9) renders a contingency fee agreement that does not comply with s. 28.1(8) unenforceable. Courts have long drawn a distinction between services provided pursuant to an agreement which is illegal as offensive to fundamental public policy notions and agreements that are unenforceable. Services provided under agreements which are unenforceable but not illegal as contrary to public policy are compensable on a quantum meruit basis: Tri Level Claims Consultants Ltd. , at para. 34 (Ont. C.A.). [28] Section 28.1(9) speaks only to the enforceability of a non-compliant contingency fee agreement. SK cannot enforce the CFA. That is, SK cannot rely on the terms of that agreement to fix the value of the legal services provided to Mr. Lima. The unenforceability of the CFA does not, however, alter the reality that the services provided by SK had real value to Mr. Lima. Nor, in my view, does the unenforceability of the CFA negate SK’s entitlement to reasonable compensation for the services it provided. Had the legislature intended to deny legal fees for services provided pursuant to an unenforceable CFA, or had the legislature intended that non-compliance with s. 28.1(8) should compel a deduction in fees otherwise owed, the legislature would have done much more than simply declare the contingency fee agreement unenforceable. [29] Apart from the specific language of s. 28.1(9), the common law provides no basis for depriving SK of any payment for its services by virtue of its non-compliance with s. 28.1(8). Courts will not recognize or enforce claims predicated on illegal agreements that are offensive to public policy. For example, the court process will not lend itself to recovery for services provided pursuant to an agreement to commit a tort or a crime: Tri Level Claims Consultants Ltd. , at para. 35. [30] The CFA entered into by SK and Mr. Lima does not contemplate the commission of a crime. Nor do the terms necessarily constitute champerty, maintenance or any other tort: see McIntyre Estate v. Ontario (Attorney General) (2002), 61 O.R. (3d) 257 (C.A.), at paras. 26, 47, 70-76. The common law offers no justification for going beyond the statutory consequences described in s. 28.1(9). That section speaks only to the enforceability of the contingency fee agreement, and not to any entitlement to compensation for the value of services provided pursuant to the agreement. [31] Sections 23 and 24 of the Solicitors Act offer strong support for the interpretation of s. 28.1(9) that does not deny a lawyer a quantum meruit assessment of fees if the contingency fee agreement is rendered unenforceable by s. 28.1(9). Under s. 23, a client may challenge fees owing under any agreement, including a contingency fee agreement, on the basis the terms of the agreement are not “fair and reasonable between the parties”. If the court accepts that the terms are not “fair and reasonable”, s. 24 directs: the agreement may be declared void, and the court may order it to be cancelled and may direct the costs, fees, charges and disbursements incurred or chargeable in respect of the matters included therein to be assessed in the ordinary manner. [32] As s. 24 makes plain, a contingency fee agreement that is not fair and reasonable is “void” and “cancelled”. The section, however, goes on to provide that fees are to be assessed “in the ordinary manner”, that is by a determination of  what is reasonable in all the circumstances: see Raphael Partners v. Lam (2002), 61 O.R. (3d) 417 (C.A.), at paras. 30-33, 49-50; Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre) , 2012 ONCA 496. [33] Although s. 28.1(9) does not specifically indicate a contingency fee agreement found unenforceable under that section should be assessed in the ordinary manner, I see no principled reason to draw a distinction between a contingency fee agreement found “unenforceable” under s. 28.1(9) and a contingency fee agreement found “void” or “cancelled” under s. 24. The same consequence should follow in respect of agreements found wanting under either s. 24 or s. 28.1(9). The lawyer can no longer rely on the terms of the contingency fee agreement as the basis for determining their fee, but is entitled to reasonable compensation reflective of the value of the legal services provided. [34] The case law, while sparse, is also against Mr. Lima’s position. In Cookish v. Paul Lee Associates Professional Corporation , 2013 ONCA 278, the client claimed the contingency fee agreement with his lawyer was invalid for non-compliance with the Solicitors Act . This court framed the issue in this way, at para. 2: As it turns out, however, there is a dispute about the nature of the retainer agreement entered into between the parties. Is it, or is it not, a valid contingency fee agreement, as contemplated by the Solicitors Act [citation omitted]? If the answer is no – as Ms. Cookish contends – then the account may be assessed as to the amount on a quantum meruit basis. If the answer is yes – as the solicitors contend – then effect must be given to the formula set out in the agreement in determining the amount. [35] Ultimately, at para. 60, the court remitted the matter to the application judge to consider the nature, validity and effect of the agreement entered into between the client and the solicitor. [36] In Du Vernet v. 1017682 Ontario Limited and Victor Wong , 2009 ONSC 29191, the client sought an assessment of his lawyers’ fees payable under a contingency fee agreement. The motion judge held the contingency fee agreement did not comply with the relevant regulations under the Solicitors Act : Du Vernet , at paras. 18-20. He further held the agreement was void under s. 24 of the Solicitors Act as unfair and unreasonable: Du Vernet , at para. 23. The motion judge went on, however, to determine that the lawyers were entitled to fees assessed in the ordinary manner: Du Vernet , at paras. 26-29. [37] In Sé guin v. Van Dyke , 2013 ONSC 6576, the motion judge considered a contingency fee agreement that did not comply with s. 28.1(8). He declared the agreement “void and unenforceable”. The motion judge said, at para. 20: I grant the application and declare the contingency fee agreement void and unenforceable. The reasonableness of the fees charged by the defendant will be determined by the trial judge in the tort action, who will receive viva voce evidence and who will be in a better position to determine the credibility of the parties. [38] The order in Sé guin recognizes the lawyer’s entitlement to reasonable fees, despite non-compliance with s. 28.1(8) of the Solicitors Act , and the unenforceability of the contingency fee agreement. For reasons peculiar to that case, the motion judge directed that the assessment of the fees should be determined in the context of the pending tort action. [39] Mr. Lima relies on Chudy v. Merchant Law Group , 2008 BCCA 484. In Chudy , the client sued his former solicitors alleging fraud, breach of trust and breach of fiduciary duty. Among other things, the client demanded the return of the funds paid pursuant to a contingency fee agreement. The client alleged the agreement was invalid for a variety of reasons, all of which involved misconduct by his former lawyers. The client maintained any fees paid were paid as a result of the lawyers’ deceit and breach of their fiduciary duty. [40] The majority of the British Columbia Court of Appeal concluded the contingency fee agreements were unenforceable primarily because the solicitor who entered into the agreements was not licensed to practice law. The majority also rejected the lawyer’s claim to a quantum meruit assessment of those fees. The court said, at para. 76: The appellant’s arguments do not address the misconduct found by the trial judge or how that misconduct affects the quantum meruit claim. In this respect, the finding that the respondents would have taken the file elsewhere had they known the truth about Mr. Shaw’s professional status in the winter of 2002 takes on particular significance. The application seeks to recover fees it would not have earned but for Mr. Shaw’s deceit. His deceit clearly makes the quantum meruit claim untenable in equity. [41] I agree with the conclusion reached by the majority of the British Columbia Court of Appeal. On the findings of the trial judge, the fees paid by the client were paid directly as a consequence of the deceit perpetrated upon the clients by the lawyers. The client was entitled to recover any fees paid as damages flowing from the lawyers’ fraud. A quantum meruit claim could not mitigate those damages. [42] There is no suggestion in this record Mr. Lima would not have agreed to the terms of the CFA if he knew the agreement contravened s. 28.1(8) of the Solicitors Act . Further, on the application judge’s findings, Mr. Lima was not deceived or misled as to the terms of the CFA. Chudy does not assist Mr. Lima. [43] Both parties made some reference to Hodge v. Neinstein , supra . In that case, the Divisional Court and this court were concerned with whether s. 28.1(8) of the Solicitors Act could support a cause of action for the purposes of certification as a class action. Neither court opined on the consequences of non-compliance with s. 28.1(8). The Divisional Court did, however, indicate the court trying the action might order the return to the client of all funds paid under the unenforceable contingency fee agreement. The court went on to observe, if the funds were ordered returned, it would be incumbent on the lawyer to establish a valid quantum meruit claim for fees: Hodge v. Neinstein , at para. 8. [44] In summary, for the reasons set out above, the application judge correctly held the CFA was unenforceable. She properly concluded SK’s fees should be assessed on a quantum meruit basis and correctly did not treat SK’s deliberate breach of s. 28.1(8) of the Solicitors Act as a reason for eliminating or substantially discounting fees otherwise earned by SK. [45] On the application judge’s findings, the CFA reflected Mr. Lima’s agreement as to how SK’s fees would be calculated. Specifically, the application judge was satisfied Mr. Lima understood the CFA included both a percentage fee component and a costs component. In coming to that conclusion, the application judge rejected Mr. Lima’s evidence to the contrary, stating at, para. 176: I find that Mr. Lima was aware, from the time that he retained Singer Kwinter, that partial indemnity costs would be added to the solicitors’ percentage fees in the event of a settlement. There is, however, no evidence that Mr. Lima knew how partial indemnity costs would be calculated. [46] By all accounts, Mr. Lima is a successful and experienced business person. He negotiated the fee agreement with SK. The terms of the agreement negotiated by Mr. Lima provided valuable insight into his reasonable expectations as to the fees he would eventually have to pay. His reasonable expectations are a significant factor in determining reasonable value for the service provided. It must, however, be stressed that the terms of the agreement go only so far in shedding light on Mr. Lima’s reasonable expectations. Based on the CFA, Mr. Lima could not know how the costs component would be determined, or what the amount would be. B. did the application judge make errors in her quantum meruit analysis? [47] The application judge’s quantum meruit assessment tracked the individual factors identified in the case law. She clearly understood it was not her function to value the services according to the terms of the unenforceable CFA. Instead, she had to arrive at a quantum meruit assessment after weighing all of the relevant factors, including Mr. Lima’s reasonable expectations as to the fees he would be required to pay: Lima v. Singer , at para. 62. [48] In her detailed consideration of the factors relevant to a quantum meruit assessment, the application judge made a number of significant factual findings: · SK took appropriate and reasonable steps to advance Mr. Lima’s litigation (para. 85); · It would have been reasonable for SK to have spent roughly 300 billable hours on the file (paras. 86-88); · The file had significant legal complexity (para. 100); · SK handled the litigation with demonstrable expertise and competence. They showed a high degree of skill, which “favours a generous assessment of their fees” (paras. 100, 124); · Mr. Lima’s claim that SK failed to follow his instructions on a specific matter was, like significant other parts of his evidence, false (paras. 121, 175); · SK assumed a substantial financial risk by committing to take Mr. Lima’s case all the way through trial without payment. There was a genuine risk the claim would be dismissed at trial. Had the claim failed at trial, SK would have been required to absorb losses in excess of $500,000 (paras. 133, 134, 141-43, 159); · The results achieved by SK were “very good” and “excellent” (para. 160); · Without SK extending the contingency fee agreement, Mr. Lima would not have been able to finance the litigation. On a normal fee-for-service basis, he would have been required to advance at least $100,000 before the case got to trial (para. 164); and · The amounts to be paid to Mr. Lima under the terms of the settlements were commensurate with the amounts he had been told he could expect to receive under those settlements before Mr. Lima signed the Minutes of Settlement and the Directions to Counsel (para. 186); [49] It is fair to say that neither SK nor Mr. Lima are happy with the application judge’s quantum meruit analysis. Both argue she was wrong about the level of success Mr. Lima realized through the settlements. SK argues the application judge understated the success by calculating SK’s fees at the low end of the range suggested by one witness. Mr. Lima, however, submits the application judge mischaracterized what were, in reality, average results as “very good” or “excellent”. [50] I will not go through the arithmetic and other exercises performed by the parties in support of their very different interpretations of the results achieved by SK. The assessment of the level of success achieved, like other assessments (e.g. the level of risk assumed by the lawyers, the skill of the lawyers), requires a holistic assessment which places the results in the context of the entirety of the relevant circumstances. There is no doubt an element of subjectivity to some of the necessary assessments. It is sufficient, in my view, to hold that the application judge’s assessments were reasonable and available to her on the record before her. I would not interfere with any of her factual findings. [51] SK and Mr. Lima allege errors in respect of the treatment of the evidence of the witness, David Leblanc. Mr. Leblanc, an appraiser who had been retained by Mr. Lima during the litigation, was called as a witness on the assessment by Mr. Lima. In cross-examination, Mr. Leblanc was asked about his experience working with law firms in cases like this one and the kinds of fees charged by those law firms. Mr. Leblanc testified to his considerable experience in cases like this one. He indicated that, as “a rough average”, fees ranged from 25 to 35 percent of the recovery. Counsel for Mr. Lima objected to the answer, but the trial judge admitted it, indicating the witness was speaking only to his personal experience and not offering a broader opinion. [52] The application judge ultimately determined SK should receive a fee of 25 percent of the settlement funds, less disbursements (paras. 189-92). SK submits the 25 percent falls at the bottom of Mr. Leblanc’s range and, given the findings of the application judge, the assessment should have been closer to the 35 percent, at the top of the range. Mr. Lima maintains Mr. Leblanc’s evidence was inadmissible and should have been rejected outright. He claims Mr. Leblanc was not qualified to give expert evidence and the procedural requirements in respect of expert evidence were not followed. [53] The trial judge was entitled to consider Mr. Leblanc’s evidence, based on his personal experience, for what it was worth. His evidence constituted some evidence of fees charged in cases that were, at least, generically similar to this one. [54] I would also reject SK’s submission in respect of Mr. Leblanc’s evidence. That submission proceeds on the faulty assumption that, because the application judge permitted Mr. Leblanc to testify about his personal experience, she was required to translate that evidence into a range of fees within which she must operate, for the purposes of determining SK’s fees. Mr. Leblanc’s evidence did not set a general range, and the application judge did not use it for that purpose. His testimony simply provided some evidence of the level of contingency fees charged in similar cases in which he had been involved. [55] The application judge made no error in her treatment of Mr. Leblanc’s evidence. She did not arrive at 25 percent as an appropriate fee by relying on Mr. Leblanc’s evidence. She explained how she arrived at 25 percent as an appropriate fee, at para. 190: This percentage takes into consideration the significant monetary value of the matters in issue and their importance to Mr. Lima, the very substantial amount of time reasonably expended by the solicitors on the file, the high degree of skill and competence demonstrated by the solicitors, the risk of non-payment assumed by the solicitors, the excellent results achieved by the solicitors, Mr. Lima’s ability to pay any amount that Mr. Lima could reasonably have expected to pay in the circumstances. It also takes into consideration the fact that the claims were settled prior to trial and prior to completing full trial preparation. Had the matter gone to trial with the same result, I would have found that a higher percentage than 25 percent was appropriate. [56] SK next submits the application judge wrongly took into account Mr. Lima’s ability to pay his legal fees as at the time of the assessment, some four years after the settlement. SK submits Mr. Lima’s ability to pay at the time of the retainer, or at the time of settlement, may have relevance in assessing his fees on a quantum meruit basis, but Mr. Lima’s financial circumstances years after the settlement cannot have any relevance. [57] There is merit to SK’s submission. However, although the application judge made a brief reference to Mr. Lima’s difficult financial circumstances as of 2019 under the heading “Ability of the Client to Pay” (para. 163), I do not read Mr. Lima’s financial difficulties as having any impact on the application judge’s ultimate assessment. The application judge went no further than to indicate some reduction in SK’s fees could provide financial help for Mr. Lima. The application judge did not endorse that approach or identify any reduction on account of Mr. Lima’s difficult financial circumstances. [58] SK’s last submission challenging the quantum meruit assessment by the application judge arises out of the treatment of legal services provided by SK in respect of ancillary claims made by Mr. Lima’s creditors. These claims had some collateral connection to Mr. Lima’s claims against the insurer and the broker. Mr. Singer testified SK undertook to help Mr. Lima on these matters without charging him anything beyond the amounts payable under the CFA. [59] SK submits that its decision not to charge for services relating to ancillary matters was predicated on the existence of the CFA. SK contends, that because the CFA was unenforceable, it is entitled to a quantum meruit assessment of all of the services it provided. [60] SK’s submission is bold, if nothing else. In effect, SK submits that it should not be bound by its agreement not to charge for certain legal services because the CFA, which it knew all along was unenforceable, is indeed unenforceable. In any event, Mr. Lima clearly had every reason to reasonably expect he would not be required to pay for services rendered in respect of the ancillary matters. [61] Even if the service in respect of these ancillary matters should have been taken into account in the quantum meruit assessment, the application record indicates that minimal work was done on these ancillary files. Assuming the work should have been taken into account, I see no reason to think the minimal additional work involved would have led to any different ultimate determination as to the appropriate fee. [62] Like SK, Mr. Lima raises several alleged errors in the application judge’s quantum meruit assessment. He argues, that without a valid contingency fee agreement, a quantum meruit assessment cannot be based on a percentage of the settlement amounts. He submits, if a quantum meruit assessment is based on the percentage of the settlement amounts, it is simply a contingency fee under another name. Contingency fees that do not comply with the Solicitors Act are not enforceable. Counsel contends the application judge could not avoid the prohibition against enforcing the CFA by, in effect, implementing a contingency fee agreement under the guise of a quantum meruit assessment. [63] The application judge did not base her quantum meruit assessment on a percentage of the settlement amounts. She based that assessment on her thorough review of the relevant factors and a careful blending of those factors. Her reasons clearly set out the path to her decision. [64] The application judge did ultimately determine that the assessment should be quantified as a percentage of the settlement amounts. I see no error in that mode of quantification, particularly where a significant part of the value of the legal services provided flowed from the lawyer’s assumption of a very real, significant financial risk, absent which the client could not have pursued the claim. Furthermore, an assessment based on a percentage of the settlement amounts was clearly the mode of quantification contemplated by both SK and Mr. Lima. [65] Mr. Lima next argues, that even if the application judge properly determined that quantum meruit fees could be awarded as a percentage of the settlement amounts, the motion judge erred in failing to deduct the amounts SK had attributed to costs ($170,000) from the settlement amounts before determining the fee based on 25 percent of the settlement amounts. [66] I would reject this argument. The amount SK had attributed to costs from the settlement for the purposes of their fee calculations under the CFA had no relevance to the application judge’s quantum meruit assessment. The application judge concluded the value of SK’s legal services should be quantified as a percentage of the settlement amounts recovered for Mr. Lima. Whatever part of those amounts SK unilaterally attributed to costs, for the purposes of the CFA, had no relevance to the trial judge’s assessment of SK’s fees on a quantum meruit basis. [67] Mr. Lima further submits that time spent on the file is the “major factor” in any quantum meruit assessment. He contends, that while the application judge referred to the hours spent, she largely ignored them in her assessment: Lima v. Singer Kwinter , at paras. 73-88. [68] Time spent on the file is obviously a relevant consideration. Under traditional retainers, it will, in all likelihood, be among the most important considerations. Its significance in any given case, however, depends on the interplay of all of the relevant factors. [69] The application judge decided that the nature of the retainer and the totality of the circumstances warranted giving prominence to factors other than the time spent on the file. She said, at para. 143: Given the substantial risk assumed by Singer Kwinter, it would be inequitable to compensate the solicitors in this case on an hourly basis for the services they provided on a percentage contingency fee basis. The clients assume no financial hardship. Mr. Lima paid an initial retainer of only $5,000, but that amount was ultimately refunded to him. The clients benefitted from skilled legal representation at no costs to them with all the financial risk assumed by their solicitors. [70] I agree with the trial judge’s observations. They explain why the hours put in on the file were not as important in arriving at a quantum meruit assessment in this situation, as they would be in many others. [71] None of the arguments advanced by SK or Mr. Lima give cause to set aside or vary the application judge’s quantum meruit assessment. C. should the application judge have reviewed the disbursements and, if so, did she err in finding an inadvertent double-counting? [72] The parties had agreed well before the application commenced that SK was entitled to the disbursements listed in its accounts and need not prove those disbursements. The application proceeded on that basis. The disbursements went unchallenged and the documents relevant to the disbursements were left unexplored. [73] In her reasons, the application judge concluded SK had inadvertently included in its final bill disbursements in the amount of $16,100, that had already been claimed and paid in connection with the settlement with the broker: Lima v. Singer Kwinter , at paras. 57-60, 191-95. The application judge had discovered the apparent double-counting on her own review of the records during the preparation of her reasons. Neither party had any opportunity to address the issue. They first became aware that disbursements were in issue when they read the application judge’s reasons. [74] The rules governing raising issues not properly pleaded are not necessarily applied as strictly in a proceeding involving an assessment of a lawyer’s fees, as they would be in regular civil litigation. I think it would have been appropriate for the application judge to raise the question of the possible double-counting of disbursements, even though the parties had agreed disbursements were not in issue. The application judge erred, however, in deciding that issue without giving the parties any opportunity to address the apparent double-counting she had discovered during her review of the evidence. [75] SK had no reason to think the amount of disbursements it claimed were challenged, or that the application judge would take issue with the amount claimed for disbursements. Fairness dictated that when the application judge had concerns about the amounts claimed for disbursements during her review of the record, she bring those concerns to the attention of the parties and give them an opportunity to call evidence and make submissions before she decided the issue. [76] The wisdom of allowing counsel an opportunity to address the issue before deciding it, is made clear on this record. The billing documents referred to by the application judge do not demonstrate any double-counting, although they do raise that distinct possibility. The submissions made in the facta filed in this court are not convincing either way. There may or may not have been an inadvertent double-counting. It may also be that the fees owing to SK as a result of the settlement with the insurance broker were understated in the same billing documents. Evidence and submissions based on that evidence would, in all likelihood, have resolved the issue one way or the other. [77] Normally, the onus would be on SK to prove the disbursements. However, when, as here, the parties had specifically agreed SK was entitled to the disbursements claimed and need not prove them, it would be unfair to deny SK disbursements for want of proof. Absent a clear and demonstrated double-counting, I would hold Mr. Lima to his agreement that SK was entitled to the disbursements claimed. The application judge erred in requiring SK to repay $16,100 to correct a double-counting of disbursements. V conclusion on the appeal and cross-appeal [78] I would allow SK’s appeal to the extent that the judgment in favour of Mr. Lima is reduced by $16,100 from $59,843.63 to $43,743.63, plus pre-judgment interest. [79] Mr. Lima’s cross-appeal is dismissed. VI the costs appeals [80] The application judge awarded Mr. Lima costs on a partial indemnity basis up to November 13, 2018, the date on which SK served Mr. Lima with an Offer to Settle in the amount of $50,000. The application judge fixed those costs at $20,000. [81] The application judge treated the $50,000 offer as more favourable than the judgment obtained by Mr. Lima, as in her view the $16,100 attributable to the inadvertent double-counting of disbursements should be deducted from the judgment for the purposes of assessing costs, leaving a “net” judgment of $43,743.63. Based on this calculation, the November 13, 2018 $50,000 offer exceeded the judgment. The application judge awarded SK partial indemnity costs after November 13, 2018. She fixed those costs at $17,000. [6] [82] In the end, SK was required to pay Mr. Lima $3,000 in costs ($20,000 minus $17,000). [83] Both parties have alleged a myriad of errors by the application judge in her costs assessment. I do not propose to address each argument. Nor do I think the appropriate costs order in these circumstances should turn on the rules applicable to offers to settle. There are two fundamental facts which are largely determinative of the proper costs order on this application. [84] First, SK bears the responsibility for the need for an assessment. By entering into a fee agreement it knew to be contrary to the Solicitors Act and unenforceable without prior court approval, and by failing to inform the client of these facts, SK made the ultimate assessment of its fee virtually inevitable if and when the client learned the CFA was unenforceable. Not only was the assessment made inevitable by SK’s conduct, I think its very combative tone was also very much a predictable consequence of SK’s troubling lack of candor with Mr. Lima. Mr. Lima had little reason to accept at face value anything SK said about their fees by the time he commenced his application. [85] SK’s misconduct in respect of the CFA made the assessment of its fees virtually inevitable and goes a long way to making SK responsible for the costs of that assessment, regardless of the outcome. [86] The second important fact, however, points in the opposite direction. Beginning about two months before the application hearing, SK made several bona fides attempts to settle the assessment. Mr. Lima made none. His only offer to settle proposed terms more suggestive of capitulation than settlement. [87] Mr. Lima bears significant responsibility for the four-day hearing that eventually ensued. Two of the offers he rejected were better, one was much better, than the amount Mr. Lima is due under the judgment, as varied by this court. While SK’s actions are largely responsible for the bringing of the assessment application, Mr. Lima’s actions are primarily responsible for the four-day hearing. [88] In my view, a proper balance is achieved by awarding Mr. Lima his costs up to the point of the offer in November 2018 and denying either party any costs after that point. [89] The application judge fixed Mr. Lima’s costs at $20,000 up to November 2018. This amount may be somewhat high on a partial indemnity basis. However, Mr. Lima was entitled to something more than partial indemnity costs, given SK’s misconduct. [90] I would grant Mr. Lima leave to appeal costs and vary the costs to $20,000, all inclusive. I would dismiss SK’s motion for leave to appeal costs. VII costs of the appeal [91] SK was successful on the main appeal to the extent of reducing the judgment by $16,100. Mr. Lima was successful on the costs appeal to the extent of increasing the costs award to him by $17,000. In light of the similar and limited success of both parties, I would make no order as to costs on the appeal. Released: “DD” “JAN 26 2021” “Doherty J.A.” “I agree Alexandra Hoy J.A.” “I agree M. Jamal J.A.” [1] SK was retained by Mr. Lima and his common-law wife, Ms. Martha Hildebrandt. I will refer to Mr. Lima as the client. [2] As the application judge points out, at para. 61, by treating the settlement amounts paid by the broker and insurer separately, contrary to the terms of the CFA, the total amount claimed for fees by SK exceeded the amount actually owed under the percentages set out in the CFA. The application judge did not quantify that amount, but it would appear to be about $15,000. [3] The CFA also did not comply with the applicable regulations: O. Reg. 195/04 – Contingency Fee Agreements, ss. 2, 3. [4] The practice apparently changed after December 2015, when the Divisional Court certified a class action against a law firm. The class action raised common issues with respect to the enforceability of the contingency fee agreements and the client’s entitlement to a return of any and all fees collected under contingency fee agreements that contravened the Solicitors Act : Hodge v. Neinstein , 2015 ONSC 7345 (Div. Ct.), aff’d in part, 2017 ONCA 294, leave to appeal to SCC dismissed, [2017] S.C.C.A. No. 341 . [5] In May 2018, legislation was enacted repealing ss. 28.1(8) and (9) of the Solicitors Act . That amendment has not yet been proclaimed in force. [6] The application judge erred in deducting the $16,100 from the judgment, for the purposes of determining whether SK’s offer exceeded the judgment. However, that error was overtaken when this court varied the judgment to $43,743.63, the amount used by the trial judge in determining whether the offers exceeded the judgment.

COURT OF APPEAL FOR ONTARIO CITATION: Lockhart v. Lockhart, 2021 ONCA 329 DATE: 20210519 DOCKET: C68651 Huscroft, Paciocco and Jamal JJ.A. BETWEEN Barbara Lockhart personally and in her capacity as attorney for property of June Lockhart Applicant/Moving Party (Respondent) and Robert Lockhart personally and in his capacity as attorney for property of June Lockhart, and June Lockhart Respondent/Responding Party (Appellant) Robert Lockhart, acting in person Matthew Rendely and Bryan Gilmartin, for the respondent Heard: May 13, 2021 by videoconference On appeal from the order of Justice Bernadette Dietrich, of the Superior Court of Justice, dated August 12, 2020. REASONS FOR DECISION [1] In 2018, the appellant, Robert Lockhart, arranged for his mother, June Lockhart, to execute a Power of Attorney for Property (“POAP”) and a Power of Attorney for Personal Care (“POAPC”) appointing him as her attorney. His sister, the respondent, Barbara Lockhart, brought a successful motion challenging the validity of those appointments. By order dated August 12, 2020, the POAP and POAPC were declared to be void ab initio and of no force or effect. Pursuant to the Health Care Consent Act , 1996 , S.O. 1996, c. 2, Sched. A, the appellant and the respondent were also ordered to jointly make personal care, health care and treatment decisions on June’s behalf. Costs were awarded to the respondent in the amount of $55,000 inclusive of HST and disbursements. [2] The appellant appeals the declaration relating to the POAPC and the Health Care Consent Act order, as well as the costs order. [3] The appellant submits that the motion judge erred in law by misapplying the capacity test for a POAPC and by placing the onus on him to establish June’s capacity to grant the POAPC. We disagree. The motion judge clearly understood the test of capacity under the POAPC and applied it correctly. Moreover, we see no error in the motion judge’s ruling, pursuant to s. 2(3) of the Substitute Decisions Act , 1992 , S.O. 1992, c. 30, that the appellant had reasonable grounds to believe that June was incapable of entering into the POAPC, and therefore could not rely upon the presumption of capacity. That holding was supported by factual findings the motion judge was entitled to make relating to the manner in which the POAPC was executed, efforts by the appellant to avoid an assessment of June’s competence to execute a POAPC, and the significant delay by the appellant in disclosing that the POAPC was executed. [4] Nor do we accept the appellant’s submissions that the motion judge misapprehended or failed to consider evidence, committed palpable and overriding errors in making findings, or failed to give adequate reasons for her decision. We find no errors in her analysis, and her reasons for decision adequately address the evidence and issues before her. [5] Finally, we see no basis for interfering with the costs decision. Leave to appeal costs is denied. [6] We need not address the reasonable apprehension of bias claim initially advanced by the appellant, as he abandoned that ground of appeal for tactical reasons at the outset of the oral hearing. [7] The appeal is therefore dismissed. Costs in this appeal are awarded to the respondent in the amount of $30,000 inclusive of HST and disbursements. “Grant Huscroft J.A.” “David M. Paciocco J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Longueépée v. University of Waterloo, 2021 ONCA 53 DATE: 20210126 DOCKET: C67862 Strathy C.J.O., Lauwers and van Rensburg JJ.A. BETWEEN Roch Longueépée Applicant (Respondent) and University of Waterloo and Human Rights Tribunal of Ontario Respondents ( Appellant / Respondent ) Frank Cesario and Amanda P. Cohen, for the appellant David Baker and Laura Lepine, for the respondent Roch Longueépée Brian A. Blumenthal and Jason Tam, for the respondent Human Rights Tribunal of Ontario Heard: June 1 and 5, 2020 by video conference On appeal from the order of the Divisional Court (David L. Corbett, Graeme Mew, and Frederick L. Myers JJ.), dated September 20, 2019, with reasons reported at 2019 ONSC 5465, 439 D.L.R. (4th) 326, allowing an application for judicial review of a decision of the Human Rights Tribunal of Ontario dated May 25, 2017, with reasons reported at 2017 HRTO 575 and a reconsideration decision dated December 22, 2017, with reasons reported at 2017 HRTO 1698. COSTS ENDORSEMENT [1] We have received and considered the written submissions on costs of the appeal. [2] The respondent Roch Longueépée seeks his partial indemnity costs of the appeal severally from the appellant University of Waterloo and from the Human Rights Tribunal of Ontario (the “HRTO”). He seeks approximately 25% of his costs from the HRTO. Both the University and the HRTO resist the claim for costs. [3] We disagree with the University that this is a case where no costs should be awarded as between itself and Mr. Longueépée because success was divided on the appeal. Mr. Longueépée was largely successful, and is entitled to his costs. The central issue on appeal – whether the HRTO’s decision dismissing Mr. Longueépée’s human rights complaint was unreasonable – was determined against the University. The appeal was allowed only to the extent that the matter was sent back to the HRTO for a remedy. [4] The University does not take issue with the number of hours spent or work done by Mr. Longueépée’s counsel but argues that the partial indemnity rates claimed, when compared with his counsel’s actual rates, is too high; we agree and fix Mr. Longueépée’s costs against the University at $25,000 inclusive of disbursements and HST. [5] In seeking costs against the HRTO, Mr. Longueépée asserts that the appeal was made more complex by the positions taken by the HRTO: first, in unsuccessfully seeking a five-judge panel for the appeal, and second, in arguing that the correct standard of review of a decision of the HRTO post- Vavilov ( Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65), was patent unreasonableness – an argument that was not made by the University. Although the HRTO did not take a position on the outcome of the appeal, it provided detailed written and oral submissions on the standard of review issue, to which Mr. Longueépée responded. Ultimately, this court concluded that it was unwise and unnecessary in this appeal to determine the issue because it should be decided in a case where the standard of review makes a difference to the outcome and where the parties with a stake in the dispute have joined issue on the point (at para. 56). [6] While we agree with the HRTO’s submission that it did not raise the standard of review issue in bad faith or improperly, it is nevertheless appropriate in the context of this case for the HRTO to be responsible for a portion of Mr. Longueépée’s partial indemnity costs. The HRTO’s decision to advance the standard of review argument necessarily expanded the scope of the appeal, and Mr. Longueépée had no choice but to respond. [7] We fix Mr. Longueépée’s costs against the HRTO in the sum of $7,500, inclusive of disbursements and HST, which amount reflects the proportion of time required to address the standard of review issue raised by the HRTO and to respond to the request for a five-judge panel. [8] Mr. Longueépée is therefore entitled to partial indemnity costs of $25,000 from the University and $7,500 from the HRTO, both amounts inclusive of disbursements and HST. “G.R. Strathy C.J.O.” “P. Lauwers J.A.” “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Louis v. Poitras, 2021 ONCA 49 DATE: 20210125 DOCKET: C68953 Watt, Lauwers and Hourigan JJ.A. BETWEEN Firma Louis and Marcdere Louis Plaintiffs (Moving Parties/Appellants) and Jacques Poitras and Security National Insurance Company Defendants ( Responding Party/Respondent ) AND BETWEEN Firma Louis Plaintiff (Moving Party/Appellant) and TD Insurance Meloche Monnex and Security National Insurance Company Defendants (Responding Parties/Respondents) Joseph Y. Obagi and Elizabeth A. Quigley, for the moving parties/appellants Barry Marta, for the responding party/respondent Security National Insurance Company Joseph Griffiths, for the responding parties/respondents TD Insurance Meloche Monnex and Security National Insurance Company Heard: January 20, 2021, by video conference On appeal from the order of the Divisional Court (Justices Thomas R. Lederer, Darla A. Wilson, and Jamie K. Trimble), dated November 16, 2020, with reasons reported at 2020 ONSC 6907, granting the appeal of the order of Justice Robert N. Beaudoin of the Superior Court of Justice, dated September 9, 2020, with reasons reported at 2020 ONSC 5301, 152 O.R. (3d) 760. Hourigan J.A.: I.        Introduction [1] The civil justice system in Ontario faces an unprecedented crisis. Among other challenges, the COVID-19 pandemic has significantly reduced the availability of courtrooms. Trial courts have necessarily had to prioritize criminal and family law cases to the detriment of civil cases' timely resolution. Consequently, civil justice reform has shot to the forefront as a public policy imperative. Procedural reforms have been implemented to respond to the challenge, including increasing the use of electronic filing and electronic hearings. In addition, more fundamental changes in the operation of the civil justice system are being contemplated, such as the potential elimination of civil jury trials. Whether these reforms will come to pass remains to be seen. In the meantime, our courts are charged with the management of a civil justice system that is being overwhelmed. [2] Judges of the Superior Court work tirelessly to keep the civil justice system afloat. This sometimes means that they must find creative ways to ensure that parties get their day in court in a timely manner. In so doing, they respond to the Supreme Court's injunction in Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87, that no less than a cultural shift is required to preserve our civil justice system. In the cases at bar, the motion judge made such a creative order. He struck the jury notices and ordered that the cases proceed in three-week tranches. On appeal, the Divisional Court held that while the motion judge had the discretion to make that order, it was made on an insufficient evidentiary basis and was therefore arbitrary. It set aside the motion judge’s order and restored the jury notices. [3] There is no single province wide answer to the problems we face in delivering timely civil justice; local conditions will necessarily impact the choice of effective solutions. However, what must remain consistent across the province is that motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice. It is a necessary corollary to that proposition that intermediate courts of appeal should not lightly second guess those discretionary decisions. In the cases at bar, the Divisional Court did just that under the guise of a finding regarding the evidentiary record. That finding is unsupportable. The motion judge had an abundance of evidence to justify his order. [4] More fundamentally, the Divisional Court’s approach is at odds with the current reality faced by our courts. Superior Court judges are acutely aware of local conditions, and it is counterproductive for intermediate appeal courts to interfere unnecessarily. It is only in rare situations that an appellate court should overrule discretionary case management decisions.  This was not such a rare case. On the contrary, this was a situation where the motion judge’s creativity should have been the subject of approbation, not condemnation. Therefore, for the reasons I will more fully detail below, I would grant leave to appeal, set aside the Divisional Court’s order, allow the appeal and restore the motion judge’s order. II.       Facts [5] The appellants were involved in a motor vehicle collision in Ottawa on May 9, 2013. Two actions resulted: a tort action and an accident benefits action. Jury notices were filed by the defendants in each proceeding, which were ordered tried together in a 10-week jury trial commencing April 20, 2020. [6] COVID-19 then intervened, and the trial date was lost. All parties were ready for trial.  But for the pandemic, the trial of both actions would have proceeded in April 2020. [7] In July 2020, the plaintiff moved for an order striking the jury notices in both actions, which the motion judge granted. Civil jury trials were not being scheduled at that time in Ottawa, but judge-alone trials of three weeks or less were available within the following six months. Consequently, the motion judge ordered the trials to proceed in three-week tranches, beginning in February 2021. [8] The defendant insurers appealed the motion judge’s order to the Divisional Court. That court allowed the appeal, reinstating the jury notices in both actions. The Divisional Court concluded that the motion judge’s decision to strike the jury notices was arbitrary because it was attributed solely to the presence of delay but lacked sufficient evidence of actual prejudice to the parties. [9] The Divisional Court summarized its reasoning in overturning the motion judge at para. 2 of its reasons: The decision of the motion judge to strike the jury notice was attributed, by him, solely to the presence of delay without any reliance on evidence that explained the anticipated length of the delay, the circumstances that might cause it to be extended or ameliorated or its impact on the administration of justice. There was nothing to which he referred that considered the particular circumstances. In the absence of such information, the decision was arbitrary. The recognition of the presence of delay, without more, is not enough. [10] The plaintiffs moved to stay the Divisional Court’s order pending appeal to this court. Brown J.A. granted the stay, finding strong grounds to suggest the Divisional Court misapprehended relevant facts, particularly regarding uncertainty in Ottawa as to when or how a jury trial might proceed in light of the pandemic. Further, Brown J.A. noted that pandemic-related delay affecting civil jury trial scheduling has been raised in several cases and may require consideration by this court. Upon granting the stay, Brown J.A. ordered that this motion for leave to appeal be expedited and heard together with the appeal if the panel entertains submissions on the appeal, as we did. III.      Analysis (a) Leave to Appeal [11] The test on a motion for leave to appeal in these circumstances is found in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.) at pp. 480-81. These appeals fall into the category of special circumstances: The Court will of course consider also cases where special circumstances would make the matter sought to be brought before the Court a matter of public importance or would appear to require that in the interest of justice leave should be granted – such as the introduction of new evidence, obvious misapprehension of the Divisional Court of the relevant facts or a clear departure from the established principles of law resulting in a miscarriage of justice. [12] The plaintiffs submit that there are two grounds upon which leave to appeal ought to be granted: (i) the Divisional Court decision discloses an obvious misapprehension of the relevant facts considered by the motion judge in granting the order to strike the jury notices; and (ii) there is a serious question raised by this appeal that engages a matter of public importance that this court should consider in the interests of justice. [13] I am satisfied that the Divisional Court’s analysis shows an obvious misapprehension of the relevant facts. The details of these patent errors will be considered in the analysis of the merits of the proposed appeal. For the purposes of the motion for leave to appeal, I note that the Divisional Court made an obvious error in concluding that the motion judge made his decision without regard to evidence of the local conditions as they impacted these actions. As I will explain, the motion judge was explicit regarding the evidence he was relying on in making that order, evidence that went to the specifics of the situation then extant regarding jury trials in Ottawa and its impact on these proceedings. [14] I also have no hesitation in finding that this appeal raises a matter of public importance regarding the administration of civil justice. Guidance is necessary regarding civil case management during the current pandemic crisis. When I say guidance, I do not mean that this court should provide advice to trial courts on how to manage their civil lists. I have every confidence that they know how to do so in the context of local conditions. What I mean is that guidance is necessary for intermediate courts of appeal to remind them of the minimal role they play in reviewing discretionary case management decisions. [15] Given the foregoing, I would grant leave to appeal. Simply put, the decision below is flawed on its face, and the approach taken by the Divisional Court must be discouraged if courts are going to properly manage their civil lists during the pandemic and beyond. (b) Merits of the Appeal [16] The Divisional Court's reasons and the reasons of the motion judge are like ships passing in the night. The Divisional Court makes a series of findings in reaching its conclusion that the decision of the motion judge is arbitrary. In so doing, it purports to undertake a detailed analysis of the motion judge's reasons to demonstrate that there was an insufficient evidentiary foundation for the decision to strike the jury notices. That analysis does not withstand scrutiny. [17] It is well settled in the jurisprudence that the substantive right to a civil jury trial is qualified because a party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury. While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has a broad discretion to determine the mode of trial. This court described the role of the court this way in Cowles v. Balac , (2006) 83 O.R. (3d) 660 (C.A.), at paras. 38-39, leave to appeal refused, [2006] S.C.C.A. No. 496: While that test confers a rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties, nothing more. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury. The application of this test should not diminish the important role that juries play in the administration of civil justice. Experience shows that juries are able to deal with a wide variety of cases and to render fair and just results. The test, however, recognizes that the paramount objective of the civil justice system is to provide the means by which a dispute between parties can be resolved in the most just manner possible. [18] It is equally well settled that an appellate court reviewing a decision to strike a jury notice has a very limited scope of review. It may only interfere where the decision to strike was “exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law”: Kostopoulos v. Jesshope (1985), 50 O.R. (2d) 54 (C.A.), at pp. 69-70, leave to appeal refused, [1985] S.C.C.A. No. 93. [19] Given the Divisional Court’s reasoning in this case, the admonition from this court in Cowles regarding deference bears repeating. The court warned that “an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be for that of the lower court. Interference is only justified when the lower court is shown to have committed the type of error referred to in Kostopoulos ”: Cowles , at para. 42. [20] With that comment in mind, I turn to a review of the Divisional Court’s reasons. There is considerable overlap in the Divisional Court’s analysis, but certain key findings emerge from the court’s reasons. In my view, all of these findings are erroneous and reflect a fundamental misunderstanding of the role of appellate courts in considering appeals from orders to strike jury notices. [21] First, the court found that delay alone is not enough to strike a jury notice. According to the Divisional Court, there must also be proof of some additional prejudice before a court is justified in striking a jury notice. Thus, the court concluded, at para. 24, that in these cases, there was “no just cause or cogent reason to interfere with the statutory right of the defendants to seek trial by jury.”  I disagree. [22] The accident in this case occurred over seven years ago. There was no indication when a civil jury trial might be held in Ottawa at the time of the motion. Accordingly, the motion judge found that “the real and substantial prejudice arises simply by reason of delay”: at para. 46. I agree with the statement of Brown J.A. in his decision on the stay motion that this was a legally permissible finding and that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.” As Brown J.A. notes, the whole raison d’être of the civil justice system, as captured in r. 1.04(1), is that courts will work to provide the “most expeditious…determination of every civil proceeding on its merits:” Louis v. Poitras , 2020 ONCA 815, at para. 33. [23] This case neatly captures the competing approaches to the crisis faced by the civil justice system. The motion judge approached this case practically, cognizant of his responsibility to the parties and the system to move cases forward and offer timely service. By contrast, the Divisional Court took the wrong approach to the new reality of the civil justice system. Implicit in its reasoning is that delay is to be expected and tolerated; it is the ordinary course. That is precisely the type of complacency that has led to the civil justice system’s systemic delay and was subject to criticism by the Supreme Court of Canada in Hryniak . [24] Second, the Divisional Court expanded the scope of its analysis beyond the interests of the parties and considered the broader context of the civil justice system during the pandemic. The court correctly recognized, at paras. 26-30, that the right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality: see Girao v. Cunningham , 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171; MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, 79 C.C.L.I. (5th) 314, at para. 29; Belton v. Spencer , 2020 ONSC 5327 at paras. 13-20, stay denied, 2020 ONCA 623. [25] There is no debate that in considering a request to strike a jury notice, the court may look beyond the parties’ interests and consider the broader interests of the administration of justice. While the Divisional Court purported to consider the administration of justice, it ignored the realities of the current situation. In its analysis, the importance of the administration of justice was almost totally discounted. [26] A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt , 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer , 2020 ONCA 623, at para. 75.  An appeal court must respect the reasonable exercise of this discretion. It impedes the proper administration of justice by second-guessing the local court’s discretionary case management decisions under the pretext of an arbitrariness analysis. [27] Third, the Divisional Court undertook a comparison of the circumstances of the cases at bar to other cases where the pandemic was considered in the context of a motion to strike a jury notice. It concluded that while the courts in those cases were justified in striking a jury notice, there was an insufficient evidentiary basis here. The Divisional Court concluded, at para. 55, that “the [motion] judge relied only on the fact of delay without any evidence applicable to the specific situation.” It also found at para. 66: The mere statement of delay or the implication of its presence is not enough. There must be some evidence or other indication that contributes to prejudice to the parties or concerns for the administration of justice. In this case the judge relied on delay removed from the specific concerns of the parties. [28] The Divisional Court went on to distinguish other decisions regarding striking jury notices like Belton, MacDougall v. Sisley, 2020 ONSC 6632 and Higashi v. Chiarot , 2020 ONSC 5523 on the basis that in those cases, the motion judges had evidence regarding the particular circumstances of the local civil list such as directives issued by the court and information provided to the court by the Regional Senior Judge. [29] The Divisional Court’s analysis of Higashi , another Ottawa case, is particularly illuminating. There the motion judge, Roger J., made inquiries of the Regional Senior Judge, court staff, and the judge in charge of civil litigation in Ottawa regarding the status of the civil list. He took judicial notice that he did not know when a civil jury trial could proceed and that it was doubtful that criminal courtrooms would be available for civil jury trials. [30] The Divisional Court accepted that the court in Higashi had a sufficient evidentiary foundation to make an order striking the jury notice. It contrasted the evidence available in Higashi with these cases and concluded that the motion judge’s decision was so lacking an evidentiary basis that it was arbitrary.  With respect, this analysis is deeply flawed and sets the bar regarding what constitutes an arbitrary decision at a dangerously low level, a level that can be easily utilized to strip a motion judge of his or her discretion. [31] I start by noting that in his reasons, the motion judge referenced the decision in Higashi , which had been released eight days earlier. This reference is ignored by the Divisional Court. Left unanswered by its reasons is why the motion judge could not rely on the information from Roger J. regarding the status of the availability of civil jury trials in Ottawa. Is it suggested that this information was reliable in Higashi but unreliable in these cases? Was the motion judge obliged to undertake his own investigation?  How exactly can reliance on very recent information in a judicial colleague’s decision qualify as an arbitrary exercise of discretion? [32] The flaws in the Divisional Court’s analysis become even more apparent when the motion judge’s reasons are properly analyzed. It is plain from his reasons that he undertook a detailed analysis of Ottawa's situation and reached his own conclusion regarding the status of civil jury trials in the city.  The motion judge noted that in June 2020, formal notice was given to the Ottawa bar that civil jury trials would not proceed until January 2021 at the earliest. He observed that only a limited number of courtrooms in Ottawa had been retrofitted with plexiglass dividers at the time of the motion, and no plan had been finalized to accommodate jury trials. Further, the conversion of a jury assembly room into a jury deliberation room in the Ottawa courthouse would permit only a single jury trial to proceed at any given time. [33] Thus, contrary to the Divisional Court’s finding, the motion judge turned his mind to the local conditions and made an unassailable finding that it was unknown when or how a jury trial might be heard in these matters. I concur with the comment of Brown J.A. that this finding was “correct at the time of the motion; correct at the time of the Divisional Court hearing; and correct today.” Louis , at para. 29. In the circumstances of these cases, including that the accident took place over seven years ago, the motion judge was entirely justified in striking the jury notices. [34] Finally, I note the respondent Security National Insurance submission that since the release of the Divisional Court's decision, the tortfeasor defendant settled with the plaintiffs. I am not satisfied that this settlement changes the analysis in any meaningful way. [35] In summary, the Divisional Court erred in its analysis. Its conclusion that the motion judge’s decision was arbitrary finds no support in the motion judge’s reasons or the record before him. The appeal must be allowed on this basis. IV.     Disposition [36] I would grant leave to appeal, allow the appeal, set aside the judgment of the Divisional Court, and restore the order of the motion judge. [37] Regarding the costs of the appeal, the parties requested that they be given until January 29, 2021, to attempt to reach an agreement on costs. I would grant that request and order that, in the absence of an agreement, the appellants have until February 5, 2021, to serve and file their costs submissions, the respondents have until February 12, 2021, to serve and file their responding submissions, and any reply submissions be served and filed by February 17, 2021. Released: “D.W.” January 25, 2021 “C.W. Hourigan J.A.” “I Agree. David Watt J.A.” “I Agree. P. Lauwers J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52 DATE: 20210128 DOCKET: C67896 & C67904 Hoy, Brown and Thorburn JJ.A. BETWEEN Alexandre Alberto Da Silva Lucas and Kelly Ramos Avelar Lucas Applicants (Respondents) and 1858793 Ontario Inc. o/a Howard Park, Sofia Ribeiro and Andre Ribeiro Respondents (Appellants) William Ribeiro, for the appellant, 1858793 Ontario Inc. o/a Howard Park Andreas G. Seibert, for the appellants, Sofia Ribeiro and Andre Ribeiro Leon J. Melconian, for the respondents, Alexandre Lucas and Kelly Lucas Heard: November 12, 2020 by video conference On appeal from the order of Justice Paul Schabas of the Superior Court of Justice, dated January 2, 2020 with reasons reported at 2020 ONSC 964, 17 R.P.R. (6th) 138. BROWN J.A.: I.        OVERVIEW [1] This appeal concerns an agreement of purchase and sale for a small, one-bedroom residential condominium unit in the west end of Toronto. The two main issues are: (1) whether the application judge erred in concluding that the vendor wrongfully terminated the agreement; and (2) whether the application judge erred in granting the purchasers the remedy of specific performance. [2] By way of overview, in January 2015, the appellant vendor, 1858793 Ontario Inc. o/a Howard Park (“185”), and the respondent buyers, Alexandre and Kelly Lucas (“Alex” and “Kelly” or, together, the “Lucases”), entered into an agreement, pre-construction, for the purchase and sale of a condominium unit in Toronto (the “Agreement”) for a price of $369,900. [3] 185, a condominium development company, is owned and operated by Mario and Francisco Ribeiro (“Mario” and “Francisco” or, together, the “Ribeiro Brothers”). Alex worked for a roofing company owned by the Ribeiro Brothers from 2009 until 2017, when he left to join a competitor. [4] In February 2019, just prior to the sale’s scheduled closing, 185 purported to terminate the Agreement and forfeit the Lucases’ deposit of $73,980. 185 claimed that the Lucases had breached the Agreement by leasing the unit to a tenant, Renato Duarte, during the interim occupancy period without 185’s permission. [5] On March 12, 2019, 185 entered into an agreement to re-sell the unit to the appellants Sofia and Andre Ribeiro (“Sofia” and “Andre”), who are Francisco’s children and Mario’s niece and nephew. In May 2019, during the interim occupancy period under that agreement, Sofia and Andre leased the unit to two tenants with 185’s consent. The Lucases registered a caution on title which prevented the sale to Sofia and Andre from closing. [6] The Lucases commenced this application seeking relief from forfeiture and, in effect, specific performance of the Agreement. The application judge granted both. He concluded that 185 had wrongfully terminated the Agreement, declared the sale to Sofia and Andre null and void, and ordered 185 to close the sale of the property to the Lucases. [7] The appellants appealed. 185 sought a stay of the judgment pending appeal. MacPherson J.A. dismissed the motion by order dated February 14, 2020, following which title to the unit was transferred to the Lucases. They took possession of the unit on April 1, 2020 and, with the consent of the appellants, placed a $200,000 mortgage on title in June 2020. [8] The appellants advance three main grounds of appeal. [1] First, they argue the application judge erred by finding that 185 wrongfully terminated the Agreement. Second, they submit the application judge misapplied remedial principles in awarding specific performance. Finally, they say the application judge had no basis to interfere with 185’s subsequent sale of the unit to Sofia and Andre and disrupt the rights of their tenants, who were not parties to the application and had no opportunity to respond. [9] I would dismiss the appeal. The record supports the application judge’s finding that 185 lost its right to terminate by declining to treat the Agreement at an end within a reasonable time following the Lucases’ alleged breach. Further, the application judge correctly identified the principles governing the remedy of specific performance. I see no reversible error in his application of those principles to the facts of this case or his order that 185 perform the Agreement and transfer the unit to the Lucases rather than to Sofia and Andre. II.       ISSUE 1: 185’s TERMINATION OF THE AGREEMENT A.      The evidence [10] Alex and Kelly are married. At the time they entered into the Agreement, they had one child; at the time of judgment, they had two. [11] In 2009, Alex began working for Triumph Roofing and Sheet Metal Inc. (“Triumph”), a company owned and operated by the Ribeiro Brothers. Over the next few years, Alex and Kelly became friends with Mario and Francisco. By 2015, Alex had been promoted to manager of Triumph’s roofing division. The Agreement for Unit 421 [12] On January 11, 2015, the Lucases and 185 entered into the Agreement for Unit 421 at 38 Howard Park Avenue in Toronto, which was to be a 595 square-foot, one-bedroom unit located on the fourth floor of an eight-storey building (the “Unit”). The Agreement set the purchase price at $369,900 and would have required the Lucases to make five deposit payments totalling $73,980 by the occupancy date, which was yet to be determined. [13] However, Mario deposed that 185 offered the Unit to the Lucases on “advantageous terms” based on their friendship, Alex’s long-standing employment with Triumph, and the expectation that Alex would remain a key Triumph employee “for years to come”. These terms, added by separate amendments to the Agreement, included the following: (i)     a $15,000 credit toward the purchase price, $5,652.26 of which the Lucases used to pay for upgrades to the Unit; and (ii)    the ability to stretch out payment of part of the deposit in twenty interest-free monthly increments of $1,000 payable from March 2015 to October 2016, with the balance due on occupancy. [14] Section 18 of the Agreement prohibits the buyers from leasing the Unit prior to the closing date without the vendor’s written consent, stating, in part: 18. The Purchaser covenants and agrees with the Vendor not to … offer for lease … the Unit, at any time prior to the unit Transfer Date without first … obtaining the written consent of the Vendor … The Purchaser acknowledges and agrees that once a breach of the preceding covenant occurs such breach is or shall be incapable of rectification , and accordingly the Purchaser acknowledges and agrees that in the event of such breach the Vendor shall have the unilateral right and option of terminating this Agreement and Occupancy License , effective upon delivery of notice of termination to the Purchaser or Purchaser's solicitor, whereupon the provisions of this Agreement dealing with the consequence of termination by reason of the Purchaser's default, shall apply…. [Emphasis added.] [15] Section C.12 of the Terms of Occupancy License, attached as Schedule “C” to the Agreement, contains a similar prohibition, stating in part that “the Purchaser shall not have the right to assign, sublet or in any other manner dispose of the Occupancy License during Interim Occupancy without the prior written consent of the Vendor”. [16] Section 17 of the Agreement provides that the buyers agree not to register a caution or certificate of pending litigation against title to the Unit. Alex leaves Triumph [17] In January 2017, Alex resigned from Triumph to become part owner of a competitor company called Maxim Roofing Limited (“Maxim”). As a result, Alex’s relationship with the Ribeiro Brothers soured. Mario believed Alex was trying to poach Triumph employees to work for Maxim. The Lucases take possession of Unit 421 [18] 185 advised the Lucases that the Unit would be ready for occupancy on April 20, 2018. The Lucases signed an interim occupancy agreement requiring them to provide 185 with 12 post-dated monthly occupancy cheques for $1,548.03 each. [19] During the interim occupancy period and before the Agreement could close, 185 needed to address outstanding building deficiencies and register the condominium declaration on title. Registration would not occur until February 21, 2019. [20] On April 20, 2018, the Lucases took possession of the Unit. By that time, they had paid all required deposits, totalling $73,980. Renato Duarte moves into Unit 421 [21] The Lucases did not move into Unit 421 upon taking possession; they allowed Mr. Duarte to move in. [22] Mr. Duarte and Alex met in 2016, when Mr. Duarte worked for Triumph as a roofing foreman. In 2017, after Triumph let Mr. Duarte go, Alex hired him to work for Maxim. [23] In April 2018, Mr. Duarte told Alex he was having financial problems and needed a place to stay. The Lucases agreed to let Mr. Duarte live in the Unit rent-free “until he got back on his feet”. Mr. Duarte moved into the Unit on May 1, 2018. 185 alleges a breach of the Agreement [24] In late July 2018, Mario became aware that Mr. Duarte was living in the Unit, when he was advised of such by 185 employees who worked in the building. [25] On September 21, 2018, Ms. Vanessa Spagnuolo, on behalf of 185, emailed Kelly to advise that 185 had been unable to address certain deficiencies in the Unit because Mr. Duarte, whom Ms. Spagnuolo referred to as a “tenant”, had denied access to 185 contractors. Ms. Spagnuolo told Kelly that Mr. Duarte’s occupancy was a breach of s. 18 of the Agreement: I would like to take this opportunity to bring to your attention the terms of [the Agreement] with respect to leasing. As per item 18 … you are currently in breach of [the Agreement]. As per [the Agreement], written consent of [185] is required to offer for lease or lease the unit … All requests for leases are at the sole discretion of our management and are only reviewed once all deficiencies are signed off … please expedite permission to allow deficiencies to be completed, once they are completed / signed by You with site staff you may request permission to lease / rent the unit … until then we will consider you to be in breach of [s. 18 of the Agreement]. [26] Kelly replied by email on the same day and denied that Mr. Duarte had refused access to the Unit. She also asserted that Mr. Duarte was not leasing the Unit, writing: I’m familiar with the terms of [the Agreement] but in regards to Mr. Duarte, he does not lease the unit. We do not have any type of rental agreement with him nor have we ever received any type of compensation from him. [27] On October 1, 2018, Mr. Duarte was arrested following a police search of the Unit. He vacated the Unit and did not return. [28] After Mr. Duarte’s departure, the Unit remained unoccupied. 185 continued to cash the Lucases’ monthly occupancy cheques. In November 2018, the Lucases permitted 185 to enter the Unit on several occasions to rectify various deficiencies. [29] 185 did not raise the Lucases’ alleged breach of s. 18 again until December 2018, in the context of a dispute over a bathtub repair (the “Bathtub Dispute”). The Bathtub Dispute [30] A gouge in the Unit’s bathtub was identified in the late spring or summer of 2018. In an email to Kelly dated August 9, 2018, a 185 employee acknowledged it was the company’s responsibility to fix the deficiency with the bathtub. [31] On November 23, 2018, the Lucases attended the Unit for a Tarion inspection, which revealed that the bathtub gouge had not been rectified. [32] On December 6, Mr. Ross Eskandari, another 185 employee, informed the Lucases that 185 had opted to repair – not replace – the bathtub. Mr. Eskandari also suggested that Mr. Duarte had caused the damage to the bathtub and again alleged that the Lucases had breached the Agreement. He gave the Lucases two options: Option 1 – We have completed a second tub repair as a courtesy to you … We ask that you review the work in person and trust that you will find it acceptable. If accepted, we ask that you remove it from your deficiency list to close this item. Option 2 – If on the other hand you do not accept the repair & we are directed to replace the tub by Tarion, we will proceed with a full tub replacement in protest. All costs involved with your unit and breach of the occupancy agreement with regards to leasing will be tabulated at closing. We reserve the right to have all costs be included as part of your settlement fees owed to the developer prior to closing . [Emphasis added.] [33] In an email dated December 19, 2018, Ms. Spagnuolo suggested that 185 would “pursue” the Lucases for the alleged breach stemming from Mr. Duarte’s occupancy if they did not release 185 from its obligation to replace the bathtub: Without prejudice, we are willing to come to an agreement for a limited time. If the bathtub repair that we completed in good faith, which was caused by your tenant, along with all other Tarion issues are cleared, [185] will not pursue your breach of the occupancy agreement any further. If you are not in agreement please advise and we will consult with Tarion for next steps. [34] The Lucases were not satisfied with the repair and refused to sign off. [35] On January 2, 2019, Tarion determined that the damage to the bathtub was not consistent with “homeowner use”, confirming it was 185’s responsibility to replace the tub. Nevertheless, 185 continued to urge the Lucases to sign off on the repair in exchange for relief from their “breach of the occupancy agreement”. The Lucases once again refused. [36] By email dated January 22, 2019, 185 advised the Lucases it would replace the bathtub “in protest” and that “all costs related to [the Unit] associated with damage caused by your tenant will be tracked and kept in claim of your breach of occupancy agreement”. [37] 185 replaced the bathtub on January 28, 2019. 185 purports to terminate the Agreement [38] A week later, on February 5, 2019 – which was about two weeks prior to the scheduled closing date for the Unit – 185 sent a letter to the Lucases purporting to terminate the Agreement on the basis of Mr. Duarte’s occupancy. (Mr. Duarte had vacated the Unit a little over four months earlier.) The letter stated, in part: We refer you to Section 18 in the Agreement in which the section sets out that the unit cannot be leased to a tenant without the prior written consent of the vendor. We have learned that you leased the unit to a third party tenant which is a fundamental breach … entitling us to terminate your Agreement. Section 18 goes on further to state that once a breach of this covenant occurs, the breach is incapable of rectification and that we have the unilateral right to terminate your [Agreement] effective upon delivery of this letter … We hereby terminate your [Agreement] and have had your deposits and occupancy fees forfeited to us as liquidated damages. [39] By the time they received the termination letter, the Lucases had paid 185 a total of $93,534.70, covering the deposits, $15,482 in monthly interim occupancy fees for the period May 2018 through February 2019, and other expenses. 185 claimed it was entitled to retain the entire sum based on the Lucases’ alleged breach of s. 18. 185 agrees to sell the Unit to Sofia and Andre [40] Just over a month later, on March 12, 2019, 185 agreed to sell the Unit to Francisco’s children, Sofia and Andre, for a purchase price of $418,000. Edgar Shamilyan, a realtor retained by 185 to provide an expert report, placed a significantly higher value on the Unit. In his report dated May 1, 2019, Mr. Shamilyan opined that the base price for the Unit at the time of his report was approximately $489,000. Another realtor retained by 185, Alexandre Alves, in his April 26, 2019 expert report, valued the Unit at $500,000 to $520,000. [41] The agreement required Sofia and Andre to put down $5,000 at signing and another $13,000 on the closing date, which had not been set. Mario also advised Sofia that, because she was family, 185 would agree to act as the lender to finance the balance of the purchase price. The loan was secured by a promissory note and a vendor take-back mortgage, with a yearly interest rate of 3%. [42] In May 2019, Sofia and Andre obtained 185’s permission to lease the Unit during the interim occupancy period. A one-year lease of the Unit to two non-party tenants was signed on May 23, 2019. [43] On March 19, 2019, a week after 185 agreed to sell the Unit to Sofia and Andre, the Lucases commenced this application against 185 seeking relief from forfeiture and specific performance of the Agreement. The application did not seek damages as an alternative to, or in lieu of, specific performance. On April 1, they also registered a caution on title, which prevented the sale to Sofia and Andre from closing pending the outcome of this litigation. On May 15, 2019, the Lucases amended their application to add Sofia and Andre as parties. B.      Reasons of the application judge [44] On the application, the Lucases argued they had not breached s. 18 of the Agreement because they never had a lease agreement with Mr. Duarte and he never paid rent. In the alternative, if they had breached s. 18, the Lucases submitted that 185 had not treated Mr. Duarte’s occupancy as a fundamental breach within a reasonable time and had thereby waived its termination and forfeiture rights. [45] The application judge agreed with the Lucases in both respects. First, he found that the Lucases had simply “loaned” the Unit to Mr. Duarte for a short time, without a lease agreement, and had received no rent or other benefits from him. As such, he held there was no lease and therefore no breach of s. 18: at para. 31. [46] Even if there had been a breach, the application judge concluded that 185 affirmed the Agreement by its conduct after learning of Mr. Duarte’s occupancy: at para. 45. He found 185 became aware of the alleged breach by September 21, 2018 “at latest”, the day Ms. Spagnuolo told Kelly that Mr. Duarte had denied access to the Unit. Nevertheless, 185 did not exercise its right to treat the contract at an end within a reasonable time. Instead, it continued to accept occupancy payments until February 2019, only “vaguely” purporting to rely on s. 18 as a “bargaining chip” in the Bathtub Dispute. 185 thus lost the right to terminate and, as of February 2019, “nothing stood in the way of closing the sale”: at paras. 39-42. C.      The issue stated [47] For the purposes of my analysis, I shall assume, without deciding, that the Lucases breached s. 18 by allowing Mr. Duarte to live in the Unit during the occupancy period without 185’s written consent. My analysis will focus on 185’s submission that the application judge erred in finding that 185 lost its right to terminate by failing to treat the Agreement at an end within a reasonable time after the alleged breach. [48] 185 submits that it did not lose or waive its contractual termination rights as the Agreement was clear that any breach of s. 18 was “incapable of rectification”. The emails exchanged with Kelly on September 21, 2018 show that, contrary to the application judge’s findings at paras. 42-45, 185 insisted on strict compliance with s. 18 of the Agreement as soon as it learned Mr. Duarte was living in the Unit. From this point on, 185 says it was entitled to terminate “unilaterally”. As such, and since the Agreement did not expressly require timely termination, 185 argues the application judge erred by concluding 185 waived its right to terminate by failing to do so “within a reasonable time”. [49] In any event, 185 contends that it did terminate within a reasonable time. From December 6, 2018 to January 11, 2019, the parties exchanged emails regarding the Bathtub Dispute which 185 says were privileged “settlement communications” relating to the Lucases’ alleged breach of s. 18. 185 argues that, when the period during which these emails were exchanged is removed from the calculation, its decision to terminate in February 2019 was made only “three months” after it gave the Lucases notice of the breach on September 21, 2018. According to 185, three months was a reasonable period between the notification of breach and the notice of termination. D.      Analysis [50] Section 18 of the Agreement provides that if a purchaser leases a unit during the occupancy period without first securing the vendor’s written consent, a breach occurs and “such breach is or shall be incapable of rectification.” However, while the breach may be “incapable of rectification”, such a breach does not cause an immediate termination of the Agreement. As s. 18 goes on to state, “in the event of such breach the Vendor shall have the unilateral right and option of terminating this Agreement and Occupancy License.” [51] Upon learning of Mr. Duarte’s occupancy of the Unit, 185 did not exercise its termination rights under s. 18 of the Agreement. It waited many months before so doing. During that period, 185 accepted the Lucases’ monthly interim occupancy payments and worked to remedy the bathtub deficiency. This conduct by 185 led the application judge to state, at paras. 37 to 39, that: The problem … is that 185 did not treat [the Agreement] at an end; to the contrary, it did not treat the breach as “fundamental” or “incapable of rectification” at all … [185] took no steps to investigate or require compliance with section 18 of the Agreement until it raised the issue in September 2018, in the context of an emerging dispute between the Lucases and 185 about deficiencies. Spagnuolo’s September 21 email did not terminate the Agreement, but suggested the breach could be cured by signing off on deficiencies. 185 did not respond to Kelly’s denial of a breach on September 21, 2018, and did not raise the issue again until December, long after the breach, if any, had been cured. Throughout this time, 185 continued to cash the applicants’ cheques paying the monthly occupancy fee. Only on December 19, 2018, was the alleged breach raised again, as a bargaining chip over the bathtub repair – a repair 185 was obliged to make. The applicants objected to 185’s demands, and 185 continued to treat the contract as extant and continued to take the applicants’ monthly occupancy fees. 185’s demand was repeated on January 11, 2019, though it never said the contract would be terminated if the Lucases did not agree to 185 not repairing the bathtub. 185’s email of January 22 was even more tactical, saying that the tub would be repaired “in protest” …. [52] That course of events led the application judge to conclude, at para. 42, that: In my view, by not treating the Agreement at an end and “incapable of rectification” when it knew of the breach, at latest, by September 21, 2018, 185 lost the right to terminate and claim the deposits and fees as liquidated damages. It sat on its rights, to the detriment of the applicants, who continued to pay occupancy fees and expected to close the sale in early 2019. Assuming there had been a breach between May 1 and October 1, 2018, that breach was rectified and both parties acted on that basis from October 1 forward. There was no breach in February 2019 and nothing stood in the way of closing the sale. 185 acted wrongly in terminating the Agreement. [53] In reaching that conclusion, the application judge did not commit any error of law. He correctly identified the applicable legal principle. Even if the Lucases’ breach could be characterized as repudiatory, on the basis that s. 18 of the Agreement describes that particular kind of breach as one “incapable of rectification”, an innocent party must elect to treat the contract at an end and communicate that election to the repudiating party “within a reasonable time”: Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada Ltd. (2006), 270 D.L.R. (4th) 181, at para. 50. [54] Nor do I see any palpable and overriding error of fact in the application judge’s finding that 185 failed to elect to treat the Agreement as at an end within a reasonable time. The record amply supports that finding of fact by the application judge. [55] I am also not persuaded by 185’s submission that the application judge should have treated the Bathtub Dispute emails as privileged “settlement communications”. The application judge held, at para. 46 of his reasons, that the emails are not properly characterized as settlement communications: This submission has no merit. First, only one email, dated December 19, states it is “without prejudice”. Second, these are not settlement discussions between lawyers; they are communications between the parties regarding their positions on the performance of a continuing contract, including the fulfillment of 185’s obligation to repair and resolve deficiencies in the Unit. There is no basis to treat them as being inadmissible on the basis of settlement privilege. [56] I see no error in that characterization. The emails focused on how the vendor would remedy a construction deficiency with the bathtub: the vendor wanted to patch the bathtub; the Lucases wanted the bathtub replaced. The emails did not purport to compromise the dispute that is the subject-matter of this litigation – namely, whether 185 was entitled to terminate the Agreement because the Lucases had permitted Mr. Duarte to occupy the Unit for a period of time. That litigious dispute was not yet in existence or within contemplation: Losenno v. Ontario Human Rights Commission (2005), 78 O.R. (3d) 161 (C.A.), at para. 21; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at §14.348; Bercovitch v. Resnick , 2011 ONSC 5082, at para. 26, leave to appeal refused, 2011 ONSC 6410 (Div. Crt.). To the contrary, the two options set out in the vendor’s email of December 6, 2018 – reproduced at para. 32 above – specifically contemplated that the Agreement would close even if the Lucases insisted on the replacement of the bathtub. [57] As well, from the language of the Bathtub Dispute emails, the Lucases could not have contemplated that a disagreement over how to repair the bathtub would lead 185 to terminate the Agreement and trigger this litigation. The application judge was therefore entitled to rely on the Bathtub Dispute emails to support his finding that 185 did not treat the Lucases’ alleged breach of s. 18 as fundamental or “incapable of rectification”. E.      Conclusion on Issue 1 [58] Accordingly, I am not persuaded by this ground of appeal. I see no reversible error in the application judge’s finding that 185, by its conduct, lost the right to rely on the alleged breach by the Lucases as a basis to terminate the Agreement. III.      ISSUE 2: THE AVAILABILITY OF SPECIFIC PERFORMANCE A.      The application judge’s reasons and order [59] As remedies for 185’s wrongful termination, in their application the Lucases sought relief from forfeiture of the deposit and specific performance. The Lucases did not seek damages in lieu of specific performance. [60] The application judge first exercised his discretion under s. 98 of the Courts of Justice Act , R.S.O. 1990, c. C.43 to grant the Lucases relief from forfeiture, concluding the applicable test was “clearly met”: Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co. , [1994] 2 S.C.R. 490. 185 does not contest that part of his judgment. [61] He then considered whether the Lucases were entitled to specific performance based on three factors: (1) the nature of the property, particularly its “uniqueness” within the meaning of Semelhago v. Paramadevan , [1996] 2 S.C.R. 415, at para. 22; (2) the related question of the inadequacy of damages as a remedy; and (3) the behaviour of the parties: Matthew Brady Self Storage Corp. v. InStorage Limited Partnership , 2014 ONCA 858, 125 O.R. (3d) 121, at para. 32, leave to appeal refused, [2015] S.C.C.A. No. 50. [62] With respect to the nature of the property, the application judge held, at paras. 59 and 64, that uniqueness arose not from the Lucases’ subjective needs or the Unit’s physical characteristics, but because the Agreement contained “advantageous terms” and could not have been readily duplicated in Toronto’s competitive, volatile real estate market: 1954294 Ontario Ltd. v. Gracegreen Real Estate Development Ltd. , 2017 ONSC 6369, 80 C.L.R. (4th) 297, at para. 151. [63] Relatedly, the application judge concluded that the circumstances surrounding the Agreement rendered damages inadequate. The Lucases paid over $90,000 toward the Unit from January 2015 to February 2019. During this time, as the Unit increased in value “significantly” along with much of Toronto’s housing market, this money was not available to the Lucases for acquiring another property. The application judge commented that the litigation would likely “drag for years” if the Lucases were limited to suing for damages, during which time the Lucases would be denied “the advantage of the rise in value of the Unit that exists today” as well as the use of their deposit. In other words, the Lucases’ losses were difficult to mitigate, making specific performance a “more complete and just remedy” than damages in the circumstances: at paras. 63-65. [64] Finally, the application judge held that 185’s conduct favoured granting specific performance. 185 had continued to accept payments from the Lucases while “improperly” trying to use the allegation of a breach to avoid its responsibility to replace the bathtub. It then terminated the Agreement and took the Lucases’ deposit without justification, long after Mr. Duarte had vacated the Unit: at para. 75. Moreover, 185’s subsequent sale to Sofia and Andre, which was not at arm’s length and did not contain commercially reasonable terms, was a “sham” designed to put the Unit out of the Lucases’ reach: at paras. 66 and 77. As he amplified in his cost reasons, the application judge concluded the transaction was a sham in part because it involved a sale below market price, with little by way of an up-front payment: 2020 ONSC 1329, at para. 4. [65] Based on the foregoing, the application judge concluded that specific performance was the best remedy to serve justice between the parties. He ordered 185 to complete the sale of the Unit to the Lucases in accordance with the Agreement no later than February 14, 2020, with all payments to date credited toward the purchase price. In addition, the application judge declared the sale to Sofia and Andre null and void and ordered the lease with their tenants assigned to the Lucases. B.      The issue stated [66] The appellants contend that the application judge made three main errors in granting the Lucases specific performance of the Unit rather than directing an assessment of damages: (1)   awarding specific relief for a “generic” condominium unit that the Lucases now intend to sell, contrary to the principles governing specific performance of real estate contracts; (2)   finding that damages were inadequate as a remedy without evidence that (a) the Lucases would have had trouble finding a replacement property, or (b) damages would be difficult to assess; and (3)   holding that 185’s behaviour favoured granting specific performance but failing to properly consider the Lucases’ misconduct. [67] Before explaining why I am not persuaded by these submissions, I first set out the principles applicable to a purchaser’s claim for specific performance of a contract for the sale of residential property. C.      The governing principles [68] The most appropriate place to start the analysis is by recalling first principles. In general, contractual remedies are intended to provide the non-breaching party with what the contract was to provide: Angela Swan, Jakub Adamski & Annie Na, Canadian Contract Law, 4th ed. (Toronto: LexisNexis Canada, 2018), at § 6.14. That usually is done by requiring the party in breach to pay, as damages, an amount of money that will provide the victim of the breach with the financial equivalent of performance: John D. McCamus, The Law of Contracts, 3rd ed. (Toronto: Irwin Law, 2020), at p. 971. However, as observed by The Honourable Robert J. Sharpe in Injunctions and Specific Performance , loose-leaf (2020-Rel. 29), 4th ed. (Toronto: Thomson Reuters, 2012), at § 7.50: The existing regime of remedial law strongly favours the first option of damages and awards specific performance only in exceptional cases. Yet in many cases, specific relief may seem to be the only sure way to put the plaintiff in the position he or she would have been in had the contract been performed The assessment of damages the innocent party has suffered can be a difficult, expensive and time-consuming task. Specific performance has the advantage of avoiding the problems and costs the parties and the judicial system must incur if damages are to be assessed. Perhaps more significant is the very real element of risk that the translation into money terms of the effect of the breach on the plaintiff may be inaccurate. Some cases will present more risk than others but it cannot be denied that the element of risk of error is virtually swept away if the court is able to make an order of specific performance. The innocent party receives the very thing bargained for rather than a monetary estimate of its worth . [Emphasis added.] The overarching test for granting specific performance [69] The basic rationale for an order of specific performance of contracts is that damages may not, in the particular case, afford a complete remedy: Adderley v. Dixon (1824), 57 E.R. 239 (Ch.), at p. 240; Semelhago , at para. 21; Matthew Brady , at para. 29. In Semelhago , the Supreme Court noted that at one time the common law regarded every piece of real property as unique. However, in the contemporary real estate market, which is characterized by the mass production of urban residential housing, it cannot be assumed that damages for breach of contract for the purchase and sale of real estate would be an inadequate remedy in all cases: at para. 21. Accordingly, specific performance should not be granted as a matter of course absent evidence that “the property is unique to the extent that its substitute would not be readily available”: at para. 22. Therefore, a party seeking specific performance must establish a fair, real, and substantial justification by showing that damages would be inadequate to compensate for its loss of the subject property: Asamera Oil Corp. v. Seal Oil & General Corp., [1979] 1 S.C.R. 633, at p. 668. [70] In his article “Death to Semelhago !” (2016) 39:1 Dalhousie L.J. 1, Professor Bruce Ziff commented, at p. 9, that “the change ushered in by Semelhago can be seen as one of degree, not principle.” The point was made, in a slightly different way, by Lax J., in John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2001), 56 O.R. (3d) 341 (S.C.), aff’d (2003) 63 O.R. (3d) 304 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 145. She ventured the view, at para. 55, that Semelhago did not replace the presumption of uniqueness with a presumption of replaceability. [2] Certainly the plaintiff bears the onus of demonstrating entitlement to the remedy of specific performance. But what does that require the plaintiff to demonstrate? Lax J. stated, at para. 55: Semelhago asks us to examine in each case, the plaintiff and the property. The danger in framing the issue as one of uniqueness (a term that carries with it a pre- Semelhago antediluvian aroma) is that the real point of Semelhago will be lost. It is obviously important to identify the factors or characteristics that make a particular property unique to a particular plaintiff. The more fundamental question is whether the plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties. This will depend on whether money is an adequate substitute for the plaintiff's loss and this in turn will depend on whether the subject matter of the contract is generic or unique. [Emphasis added.] [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: Matthew Brady , at para. 32. 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: Landmark of Thornhill Ltd. v. Jacobson (1995), 25 O.R. (3d) 628 (C.A.), at p. 636. Whether a property is unique, either by virtue of its nature or the features of the contract for its purchase and sale [3] , operates as only one of several factors a court must consider when determining entitlement to specific performance. [72] Against that backdrop of general principles, I shall examine the case law regarding each factor. (i) The nature of the property [73] In assessing whether a property is unique, courts may have regard to: (a) a property’s physical attributes; (b) the purchaser’s subjective interests, or (c) the circumstances of the underlying transaction. While physical and subjective uniqueness of property will usually be significant in cases where a purchaser – as opposed to a vendor – seeks specific performance, the types of uniqueness are not exclusive and no difference in evidential weight should be given to one form over another: Jeffrey Berryman, The Law of Equitable Remedies , 2nd ed. (Toronto: Irwin Law, 2013), at pp. 355-57. [74] Uniqueness does not mean singularity or incomparability. Instead, it means that the property has a quality (or qualities) making it especially suitable for the proposed use that cannot be readily duplicated elsewhere: Dodge (S.C.), at para. 60. For example, a rising real estate market, particularly where the purchaser’s deposit remains tied up by the vendor, may indicate that the transaction could not have been readily duplicated or that other properties were not readily available at the time of breach within the plaintiff’s price range: Walker v. Jones (2008), 298 D.L.R. (4th) 344 , at para. 165; Sivasubramaniam v. Mohammad , 2018 ONSC 3073, 98 R.P.R. (5th) 130, at paras. 84 and 92, aff’d 2019 ONCA 242, 100 R.P.R. (5th) 1. [75] The court should examine the subjective uniqueness of the property from the point of view of the plaintiff at the time of contracting: Dodge (S.C.), at para. 59. The court must also determine objectively whether the plaintiff has demonstrated that the property or the transaction has characteristics that make an award of damages inadequate for that particular plaintiff: Dodge (S.C.), at para. 59; Di Millo v. 2099232 Ontario Inc. , 2018 ONCA 1051, 430 D.L.R. (4th) 296, at paras. 70-73, leave to appeal refused, [2019] S.C.C.A. No. 55. [76] While units in cookie-cutter townhouses or condominium units may be considered less unique than other forms of property, some condominiums are truly unique: Gillespie v. 1766998 Ontario Inc. , 2014 ONSC 6952, 49 R.P.R. (5th) 65, at para. 26; Landmark of Thornhill , at p. 636. Even in the case of mass-produced condominiums, the issue remains whether the plaintiff has shown, upon the consideration of all the factors, that the land rather than its monetary equivalent better serves justice between the parties. [77] Put another way, the specific performance analysis is not merely a search for uniqueness. As the case law discloses, other factors such as the inadequacy of damages as a remedy and the behaviour of the parties also play a role: Landmark of Thornhill , at p. 636; Dodge (S.C.), at para 55; UBS Securities Inc. v. Sands Brothers Canada Ltd. , 2009 ONCA 328, 95 O.R. (3d) 93, at para. 100. (ii) Adequacy of damages [78] As indicated above, one other factor is whether damages would be adequate to remedy the purchaser’s loss. For instance, courts should be reluctant to award specific performance of contracts for property purchased solely as an investment, since money damages are well-suited to satisfy purely financial interests: Southcott Estates Inc. v. Toronto Catholic District School Board , 2012 SCC 51, [2012] 2 S.C.R. 675, at paras. 40-41. [79] By contrast, if damages would be particularly time-consuming, difficult, or complex to compute, this may point in favour of specific performance: Sharpe J., Injunctions and Specific Performance , at § 7.220; Neighbourhoods of Cornell Inc. v. 1440106 Ontario Inc. (2003), 11 R.P.R. (4th) 294, at paras. 112-14, aff’d (2004), 22 R.P.R. (4th) 176 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 390. (iii) The behaviour of the parties [80] A final factor involves considering the behaviour of the parties and weighing the equities at play in the transaction: Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd. , 2019 ONCA 746, 438 D.L.R. (4th) 374, at para. 31, leave to appeal to S.C.C. refused, 38927 (April 2, 2020); Matthew Brady , at para. 32. A vendor’s bad faith attempt to terminate a valid agreement of purchase and sale may support an order of specific performance against that party: Gracegreen , at para. 170. D.      Analysis [81] In assessing the appellants’ submission that the application judge misapplied the foregoing principles in granting specific performance, I shall address the three main errors alleged by the appellants. First error: The Unit was not unique to the Lucases [82] The appellants contend that Unit 421 was not unique to the Lucases in any way; it was merely a generic investment opportunity. They submit the application judge misapplied the applicable principles by awarding specific performance after finding, at paras. 59 and 61, that the Unit “cannot be described as physically unique” and that “uniqueness of the property in the sense that it has some special characteristic sought by the party, does not apply”. According to the appellants, the fact the Lucases now intend to sell the Unit and buy a larger home – due to their expanding family – proves that Unit 421 is only valuable to them financially and therefore is not unique: Southcott , at paras. 38-40. [83] I see no reversible error in the application judge’s analysis. Although he acknowledged that the Unit is one of many similar properties available in Toronto at any given time, there is no rigid rule requiring a court to decline specific performance to a prospective purchaser in the absence of physical or subjective uniqueness. In determining whether a substitute for the Unit was “readily available” within the meaning of Semelhago , a court may look beyond the physical attributes or location of a property to examine the features of the purchase transaction. [84] That is what the application judge did. At para. 64, he found that the Unit was unique based on “advantageous terms” in the Agreement. These terms included: (a) a $15,000 credit, part of which the Lucases used to customize the Unit with upgrades, and (b) the ability to stretch out payment of the deposit into small monthly increments. The appellants now argue that these terms were available to the public at large. However, 185’s evidence on the application was that (a) the “overall deal” outlined in the Agreement was “unique to Alex Lucas” and (b) the deposit payment structure was only available to the Lucases, not to others, because of Alex’s long-standing employment with Triumph. The Agreement locked in a home for the Lucases at a favourable price, along with the ability to slowly build their deposit. As long as they made their payments, they were insulated from market fluctuation while their home was being constructed and fitted with custom upgrades. On this basis, the application judge found that the Agreement could not have been readily duplicated at the time of 185’s wrongful termination in February 2019. I see no palpable and overriding error in that finding. [85] This case is distinguishable from Southcott , where a developer sought specific relief with respect to property it had agreed to purchase solely as an investment. At the hearing, 185 acknowledged there was no evidence that the Lucases purchased Unit 421 as an investment property. Rather, the Lucases’ evidence was that they intended to live in the Unit when they entered into the Agreement in 2015. Later, when their second child was born, they decided they needed more space. While the arrival of a second child before the Unit’s closing date changed their plans to live in the Unit, Kelly deposed that their interest in completing the purchase of the Unit remained one tied to residential use, not investment – they could use the sale proceeds as the means to buy a 2-bedroom unit in the condominium in which to live. Accordingly, the evidence does not support the appellants’ efforts to paint the Lucases’ interest in the Unit as solely an investment opportunity. Second error: The Lucases failed to establish the inadequacy of damages [86] The second alleged error concerns the application judge’s finding, at para. 65, that pursuing damages would deny the Lucases the advantage of the rise in value of the Unit, hindering their ability to buy a home “of the size and quality they could otherwise afford now”. The appellants say the application judge failed to acknowledge that damages would be assessed at the date of judgment based on a straightforward analysis of the Unit’s fair market value. As such, damages would not be complex to assess and the Lucases would not lose out on any increase in value. [87] The appellants further argue that the Lucases did not specifically plead that damages were inadequate or adduce evidence that it would have been difficult for them to obtain a similar property in Toronto. Therefore, the appellants submit that there was no basis on which to find damages inadequate and the application judge should have recognized the Lucases’ duty to mitigate. [88] I am not persuaded by the appellants’ submissions for four reasons. [89] First, the application judge found damages inadequate because of delay, not quantum. He did not ignore the practice that damages generally are assessed as of the date of judgment (or trial); he held that it would be unfair to make the Lucases wait any longer to be compensated for 185’s misconduct. [90] As I read his reasons, especially at para. 65, the application judge made three points: (i)    To accept 185’s position that specific performance should not be available for a breach of a contract to sell a standard condominium unit where a vendor retains control of the purchaser’s deposit would make it difficult for purchasers to mitigate their damages. They would not be able to use their deposit to acquire a replacement property; (ii)    Even with a damages award in their pockets, purchasers such as the Lucases would still have to spend time and money pursuing their vendor, such as 185, if it did not immediately honour the judgment; and (iii)   Finally, a suit for damages could “drag on for years”. I take the application judge to be pointing to the Lucases’ choice to bring an application, rather than an action, to obtain their remedy for 185’s breach. Bringing an application for specific performance would “better achieve justice than requiring the [Lucases] to sue for damages,” as the application judge put the matter. [4] I see no error in any of these points made by the application judge. Indeed, I agree with them. [91] In regard to the application judge’s comment that a suit for damages could drag on for years, I would note that an application is designed as a more stream-lined device than an action to obtain a remedy, avoiding the delays and costs too often associated with productions, discoveries, and the scheduling of trials. And the potential advantage of an application over an action was demonstrated in this case: the Lucases issued their notice of application in March 2019 and obtained their judgment less than 10 months later, in January 2020. An example of the court’s process satisfying the “service guarantee” promised by r. 1.04(1) of the Rules of Civil Procedure to secure “the just, most expeditious and least expensive determination of every civil proceedings on its merits”: Louis v. Poitras , 2020 ONCA 815, at para. 33; 2021 ONCA 49, at para. 22. [92] Second, the Lucases were not required to specifically plead the “inadequacy of damages”, as the appellants contend. A claim for specific performance, by its nature, requires a court to inquire into whether damages would be an adequate remedy in the circumstances. While choosing not to plead damages as an alternative to specific performance may, in some circumstances, be a risky litigation strategy, it does not preclude a court from assessing the circumstances surrounding the transaction and subsequent litigation in exercising its remedial discretion. Accordingly, 185’s contention that it was “taken by surprise” when the application judge considered inadequacy of damages is not tenable given the Lucases’ claim for specific performance. [93] Third, there was sufficient evidence to support the application judge’s finding that damages were inadequate to compensate the Lucases. It is common ground that prices in the Toronto real estate market rose significantly over the past several years. The evidence before the application judge was that the Unit had increased in value by about 40% between the signing of the Agreement in 2015 and 185’s purported termination in 2019. Given that four years had elapsed between the execution of the Agreement and 185’s wrongful termination, it was reasonable for the application judge to infer that it would have been difficult for the Lucases to find a property at a comparable price, particularly when 185 had seized their deposit. [94] Finally, I do not accept the appellant’s suggestion that in order to obtain specific performance the Lucases were required to prove they lacked the financial means to mitigate their loss. In their application, the Lucases claimed specific performance, not damages. In Southcott , the Supreme Court explained the interplay between a claim for specific performance and the obligation of the innocent party to mitigate when faced with a breach of contract. At para. 37, the court stated: Asamera set out the general principles governing mitigation: was the plaintiff’s inaction reasonable in the circumstances, and could the plaintiff have mitigated if it chose to do so. Those principles apply to a plaintiff seeking specific performance. If the plaintiff has a “substantial justification” or a “substantial and legitimate interest” in specific performance, its refusal to purchase other property may be reasonable, depending upon the circumstances of the case. [95] In assessing whether the plaintiff’s refusal to purchase another property was reasonable, the defendant vendor bears the burden of proof. As the court went on to state in Southcott , at para. 45: “[W]here it is alleged that a plaintiff has failed to mitigate damages, the onus of proof on a balance of probabilities lies with the defendant, who must establish not only that the plaintiff failed to take reasonable efforts to find a substitute, but also that a reasonable profitable substitute could be found.” [96] The application judge obviously found that 185 had not discharged that onus. 185’s retention of the deposit evidently played a large role in the application judge’s analysis for he noted, at para. 64, that “the [Lucases’] deposits have been provided to 185, and that money has been, and remains, tied up in the property, unavailable for acquiring another property, as the market continues to rise.” The evidence also disclosed two other impediments to reasonable mitigation: (i) the expert evidence indicated that any potential substitute property in February 2019 would have been significantly more expensive than the contract price for the Unit; and (ii) the Agreement had provided the Lucases with special advantageous terms because of their relationship with the vendor’s principals. [97] Given those circumstances, I see no error in the application judge’s determination that the Lucases had shown that specific performance of conveying the Unit, rather than awarding its monetary equivalent, better served justice between the parties . Third error: the Lucases behaved inappropriately, not 185 [98] The appellants also contend the application judge failed to consider that the Lucases did not bring their claim for equitable relief with clean hands. Conversely, they argue that the subsequent sale to Sofia and Andre, while a “favourable deal”, was legitimate. As such, the appellants say the application judge erred in finding that the behaviour of the parties weighed in favour of awarding specific performance against 185. [99] I see no merit in this submission. The application judge considered and rejected essentially the same argument: at paras. 72-75. On appeal, 185 seeks to re-litigate the issue. Although 185 may disagree with the application judge’s reasoning, I see nothing to suggest he made any palpable and overriding error in his application of the doctrine of clean hands. [100] Further, as the application judge noted, at para. 75, the equities in this case strongly favour the Lucases. The Lucases upheld their end of the Agreement and expected 185 to do the same. Over the course of four years they made all required payments to secure ownership of the Unit. In September 2018, 185 took issue with Mr. Duarte’s occupancy. However, 185 did not promptly invoke any right to terminate under the Agreement. Instead, it did nothing for months, only raising the matter again in December as leverage in the Bathtub Dispute, long after Mr. Duarte had already vacated the Unit. When that tactic failed, 185 terminated the Agreement on the eve of closing, seized the Lucases’ deposit, and re-sold the Unit to close relatives of the company’s principals on favourable terms. [101] The appellants submit that the application judge erred in finding, at para. 77, that the re-sale of the Unit to Sofia and Andre was “a sham, intended by the [appellants] to prevent the [Lucases] from acquiring title to Unit 421.” While the word “sham” might overstate the commercially favourable aspects of the re-sale transaction, the evidence certainly supported the application judge’s inference that 185 entered into that transaction to prevent the Lucases from acquiring title to the Unit. Specifically, the evidence revealed that: (i)    Sofia and Andre were the children of one of 185’s principals; (ii)    The re-sale price of $418,000 was far below the then market price for the Unit, which 185’s own experts valued at between $489,000 and $520,000; (iii)   The required deposit of $5,000 was only 1% of the purchase price, far lower in proportion than the deposit required of the Lucases on their purchase. [5] Another $13,000, or 3%, was to be paid on closing, with the balance financed by a vendor take-back mortgage from 185, the company owned by the purchasers’ father and uncle; [6] (iv)   Mario deposed that 185 offered the mortgage because he was aware that Sofia and Andre did not have the money to close the transaction; (v)   The re-sale was not the result of listing the Unit on the open market. Instead, Sofia deposed that her uncle approached her to advise that the sale of the Unit to a former Triumph employee was not proceeding; and (vi)   Sofia deposed that her uncle’s overture occurred in early March 2019, just three weeks after 185 purported to terminate the Agreement. [102] Given the evidence set out above in paras. 100 and 101, it certainly was open to the application judge to find that 185 acted in bad faith in terminating the Agreement and to take that conduct into account in granting equitable relief to the Lucases. E.      Conclusion on Issue 2 [103] Accordingly, I would dismiss the appeal with respect to remedy. I see no reversible error in the application judge’s decision to grant specific performance in favour of the Lucases. He properly applied the controlling principles to the evidence before him. Rather than focus solely on the uniqueness of the Unit itself, he conducted a broad critical inquiry as to the adequacy of damages having regard to the circumstances of the transaction as a whole. Based on this inquiry, the application judge was entitled to conclude, as he did, that specific performance would best serve justice between the parties. IV.     ISSUE 3: THE SUBSEQUENT SALE TO SOFIA AND ANDRE [104] The final issue on appeal concerns 185’s subsequent sale of the Unit to Sofia and Andre. The appellants submit the application judge erred by ordering the lease with Sofia and Andre’s tenants assigned to the Lucases. As non-parties to the litigation, the appellants submit that the tenants had no recourse to challenge the application judge’s interference with their contractual rights. They say the lease should be re-assigned and all rent payments returned to Sofia and Andre. [105] As a practical matter, this is no longer a live issue. At the hearing, respondents’ counsel confirmed that Sofia and Andre’s tenants voluntarily vacated the Unit on March 31, 2020, after paying only one month of rent to the Lucases. The Lucases re-took vacant possession of the Unit in April 2020. [106] As well, given my conclusion that the application judge did not err in granting the Lucases specific performance of the Agreement, I see no error in that part of his judgment which, in effect, directed the Lucases to honour the lease with the then existing tenants of the Unit. V.      DISPOSITION [107] For the reasons set out above, I would dismiss the appeal. [108] I would order the appellants to pay the respondents their partial indemnity costs of the appeal fixed in the amount of $18,500, inclusive of disbursements and applicable taxes. Released: “AH” JAN 28 2021 “David Brown J.A.” “I agree. Alexandra Hoy J.A.” “I agree. Thorburn J.A.” [1] 185 abandoned its appeal of the application judge’s order with respect to relief from forfeiture and released $73,980 in deposit monies to the Lucases. [2] Low J. first made this point in 904060 Ontario Ltd. v. 529566 Ontario Ltd. , [1999] O.J. No. 355 (S.C.), at para. 14. [3] Domowicz v. Orsa Investments Ltd. (1993), 15 O.R. (3d) 661, at pp. 687-88, aff’d (1998), 40 O.R. (3d) 256 (C.A.); Matthew Brady , at para. 39; Di Millo v. 2099232 Ontario Inc. , 2018 ONCA 1051, 430 D.L.R. (4th) 296, at paras. 70-74, leave to appeal refused, [2019] S.C.C.A. No. 55. [4] In Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd. , 2014 BCCA 388, 377 D.L.R. (4th) 701, the British Columbia Court of Appeal noted the advantages of the remedy of specific performance in providing greater access to justice in the courts, stating, at para. 49: In terms of the modern concept of access to justice, the remedy has much to be said for it, at least in the context of contracts for the sale and purchase of land. Certainly it is likely to be less expensive and time-consuming than the assessment of damages, which requires the parties to marshal expert evidence concerning the value of the land as at a particular date (which may be in issue) in what may be an unstable market…. [5] Sofia and Andre recovered their deposit through the rent paid by their tenants prior to the judgment and transfer of the Unit to the Lucases. [6] Although the application judge, at paras. 22 and 77, stated that the agreement to secure payment of the balance of the purchase price was by way of a promissory note, not a mortgage, in my view this mischaracterization is of no consequence. At the end of the day, the purchasers were offered financing for 96% of the purchase price by the company owned by their father and uncle.

COURT OF APPEAL FOR ONTARIO CITATION: Magnotta v. Yu, 2021 ONCA 185 DATE: 20210325 DOCKET: C68187 MacPherson, Gillese and Nordheimer JJ.A. BETWEEN Melissa Magnotta as the Representative of the Estate of Joseph Magnotta and Melissa Magnotta Plaintiffs (Respondents) and Xiaozeng Yu , Xiahong Mao and Sutton Group-Admiral Realty Inc. Defendants ( Appellants ) Sean Dewart and Mathieu Bélanger, for the appellants Alfred J. Esterbauer, Arleen Huggins, and Sydney Hodge, for the respondents Heard by videoconference: February 26, 2021 On appeal from the judgment of Justice Paul B. Schabas of the Superior Court of Justice, dated February 18, 2020 with reasons reported at 2020 ONSC 1049. Gillese J.A.: Overview [1] This proceeding stems from a failed real estate deal. Offers to settle flowed between the parties. The respondents purported to accept an outstanding offer but the appellants claimed there was no offer capable of being accepted. The respondents moved to enforce settlement. [2] The motion judge found the respondents had accepted a valid offer made pursuant to rule 49 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. While he had the discretion to not enforce the settlement, he chose not to exercise it. [3] The issue on appeal is whether the motion judge erred in refusing to exercise that discretion. For the reasons that follow, in my view, he did not. Consequently, I would dismiss the appeal. Background [4] On March 8, 2017, Xiaozeng Yu entered into an agreement of purchase and sale for a residential property in Richmond Hill, Ontario (the “Property”) owned by Melissa Magnotta and the late Joseph Magnotta (the “Respondents”). [1] The purchase price was $2,662,000 and July 7, 2017, was the scheduled closing date. Ms. Yu made a deposit of $65,000. [5] Ms. Yu waived conditions on March 13. She had until June 23 to inspect title and make requisitions. On June 29, Ms. Yu’s real estate agent sought a two-week delay in closing so Ms. Yu could obtain financing because she had been unable to sell her own home. The following day, the Respondents received a letter from Ms. Yu’s lawyer with many requisitions, the most significant of which concerned the conversion of the house’s garage into a master bedroom, apparently without building permits and in contravention of zoning by-laws. [6] The Respondents answered the requisitions even though they were out of time. Ms. Yu’s lawyer was not satisfied with the Respondents’ answer on the garage conversion. He asserted that good title could not be conveyed in the absence of the Respondents delivering a valid building permit, Ms. Yu would not close the transaction, and the agreement was at an end. The sale did not close on July 7, 2017. [7] In September 2017, the Respondents sued Ms. Yu and her mother, Xiahong Mao (the “Appellants”). Ms. Mao was named because she had placed a mortgage on Ms. Yu’s property in the amount of $900,000 on July 4, 2017 (three days before the closing date). The statement of claim alleged that the mortgage was registered as a fraudulent preference or conveyance. [8] The Respondents subsequently sold the Property for $900,000 less than what Ms. Yu had agreed to pay for it. They filed a summary judgment motion that was to be heard on June 24, 2019. [9] In March 2019, the Appellants changed legal counsel. [10] In late May 2019, counsel for the parties exchanged several offers to settle. For the purposes of this appeal, the relevant offer is one made by counsel for the Appellants in writing on May 29, 2019 (the “Offer”). The Offer set out two options for acceptance. Option A offered the immediate release of the $65,000 deposit, a payment of $200,000 within 15 days, and a further payment of $235,000 within 30 days. Option B offered the immediate release of the $65,000 deposit, a payment of $200,000 within 15 days, and a further payment of $285,000 in 90 days. [11] Counsel for the Respondents responded that same day. She said the Offer was “insufficient” and confirmed that she would cross-examine Ms. Yu the following morning. Later that day, counsel for the Appellants advised counsel for the Respondents that the Appellants had retained new counsel. [12] The Appellants retained new counsel – not counsel on this appeal – on May 30, 2019, at which point her former lawyers ceased to be involved in this matter. [13] In June 2019, the Appellants’ new counsel obtained expert opinion evidence from a land use planning consultant and a real estate lawyer. The former opined that the garage conversion was non-complaint with the zoning by-laws and the building code. The latter opined that the conversion was not discoverable by a title search and either went to the root of title or was a requisition that could be made up to five days prior to closing and, therefore, was timely. The expert reports were served on counsel for the Respondents on June 25, just as counsel was leaving on vacation. [2] [14] Beginning on June 26, counsel for the Respondents was out of the country on a prescheduled vacation. [15] On July 3, counsel for the Respondents wrote to the Appellants’ new counsel advising that her clients accepted Option B of the Offer. Two days later, the Appellants’ counsel responded that there was no offer to settle capable of being accepted and, in any event, the Offer was no longer open for acceptance. [16] The Respondents moved to enforce settlement based on their acceptance of the Offer. THE MOTION JUDGE’S REASONS [17] The motion judge found that the Offer complied with r. 49: it was made in writing; by a person with authority to make it; effectively served on the opposing party; capable of acceptance; not time limited; and not withdrawn. Citing York North Condominium Corp. No. 5 v. Van Horne Clipper Properties Ltd. (1989), 70 O.R. (2d) 317 (C.A.) at para. 10, the motion judge observed that even if the Offer had been rejected, it remained open for acceptance because it had not been withdrawn. [18] As the Offer complied with r. 49, the motion judge stated that it should be presumptively enforced. He gave comprehensive reasons for why the Appellants had failed to rebut the presumption. [19] The motion judge next considered whether he should exercise his discretion to not require compliance with the settlement. He set out the Appellants’ position at para. 47 of his reasons: Essentially, the [Appellants] submit that the expert evidence obtained in June 2019 completely changed the case such that it would be unjust to hold them to an offer that pre-dated that change and of which their counsel was unaware. To this, they also argue that it was unreasonable for [Respondents’] counsel to think that the Offer was still open for acceptance given the new evidence, and it is suggested that she took advantage of an Offer mistakenly left open by the [Appellants]. [20] He concluded that this was not “one of those rare cases” where an injustice would result if the settlement was enforced. He gave three reasons for this conclusion. [21] First, the motion judge felt it was not appropriate for him to assess the strength of the case for either side. He said that, apart from being unable to do so adequately, allowing a party to avoid an outstanding offer on the basis that its case had improved would create uncertainty and defeat the purpose of r. 49. He acknowledged that the Respondents sold the Property for approximately $900,000 less than what Ms. Yu had agreed to pay and that might have been the result of the alleged title issues, but he had no evidence of that. Further, he did not have any expert evidence that the Respondents might have led in response to the Appellants’ new evidence. He said that, if he were to rely on that new evidence, it would open the door to permitting parties to avoid what, in retrospect, may have been an improvident offer. [22] Second, the motion judge found that this was not a case in which the Respondents’ lawyers knowingly took advantage of a mistake by counsel for the Appellants. [23] Third, the motion judge did not accept that it was unreasonable for the Respondents’ counsel to have thought the Offer was still open despite the expert evidence served on her at the end of June. He acknowledged that the case “looked different” and that counsel for the Respondents had indicated that a summary judgment motion was no longer viable. However, counsel for the Respondents did not concede that their case was “hopeless”, and he could not so conclude. The motion judge also stated that he would not speculate as to why the Respondents chose to accept the Offer which, he noted, compromised the case at about 50% of the amount of the loss claimed. He said that this compromise made it difficult to conclude that one party would be unduly prejudiced. The Issue [24] The Appellants do not take issue with the motion judge’s conclusion that the Offer complied with r. 49 and the Respondents validly accepted it. The sole issue they raise on appeal is whether the motion judge erred in refusing to exercise his discretion to not enforce the settlement. THE GOVERNING LEGAL PRINCIPLES [25] There is no dispute about the legal principles that govern this appeal. [26] Rule 49.09(a) is permissive. If a party to an accepted offer does not comply with the terms of the offer, the other party can move for judgment in the terms of the accepted offer and the judge “may” grant judgment accordingly. Thus, the judge has discretion whether to enforce the settlement. [27] The standard of review of the judge’s exercise of discretion to enforce a settlement was articulated by this court in Milios v. Zagas (1998), 38 O.R. (3d) 218 (C.A.), at para.19: In determining whether to enforce a settlement under R. 49.09, all of the relevant factors disclosed by the evidence must be taken into account. When that is done, an appellate court will not generally interfere with the motion judge’s decision to grant, or not grant, judgment in accordance with an accepted offer. [28] At para. 21 of Milios , Osborne J.A., writing for the court, stated that the motions judge erred “by not taking into account manifestly important factors”, including: - since no order giving effect to the settlement had been taken out, the parties’ pre-settlement positions remained intact; - apart from losing the benefit of the impugned settlement, the defendant would not be prejudiced if the settlement was not enforced; - the degree to which the plaintiff would be prejudiced if judgment was granted in relation to the prejudice that the defendant would suffer if the settlement was not enforced; - the fact that no third parties were, or would be, affected if the settlement was not enforced. [29] In Srebot v. Srebot Farms Ltd. , 2013 ONCA 84, this court reiterated the deferential approach it is to take when reviewing such decisions. At para. 5, this court stated that the motion judge’s “appreciation of the evidence and her related factual findings attract great deference”. And, at para. 6, it stated that the discretionary decision to not enforce a concluded settlement should be reserved for “rare cases where compelling circumstances establish that the enforcement of the settlement is not in the interests of justice”. THE PARTIES’ POSITIONS [30] The Appellants submit that the motion judge referred to the factors set out at para. 21 of Milios but failed to consider them. They say that failure is a legal error and, consequently, this court owes no deference to the motion judge’s discretionary decision to not enforce the settlement. The Appellants make four arguments in support of this position. [31] First, there is clear evidence of an error. Ms. Yu’s uncontradicted evidence was that she believed there were no offers that could be accepted by the Respondents and her new counsel were unaware of the outstanding Offer. While the Offer ought to have been withdrawn before it was accepted, this mistake by counsel ought not to be visited on the Appellants. [32] Second, no order giving effect to the settlement had been taken out. [33] Third, the motion judge did not carry out a meaningful analysis of the relative prejudice to the parties because he failed to consider the possibility that Ms. Yu was correct that the Respondents could not convey good title. If correct, she did not breach the agreement of purchase and sale and yet, because of the enforcement of the settlement, as the blameless party she would have to pay $485,000 to the at-fault Respondents because of a lawyer’s slip. Further, while there was compelling evidence of potential prejudice to Ms. Yu, including being deprived of having the issues decided on the merits at a trial, there was no evidence of prejudice to the Respondents apart from the loss of the settlement. [34] Fourth, no third parties would be affected by the non-enforcement of the settlement. [35] The Respondents submit that there is no basis on which to interfere with the motion judge’s discretionary decision and that the Appellants are seeking to relitigate the motion by asking this court to engage in its own assessment of the evidence. They contend that the motion judge considered all the relevant legal principles, made factual findings that withstand scrutiny on the “palpable and overriding standard”, and reasonably concluded that this was not one of those rare cases in which it would not be in the interests of justice to enforce the settlement. Analysis [36] I accept the Respondents’ submissions. The motion judge’s factual findings are wholly justified on the record and the Appellants do not suggest otherwise. The motion judge also clearly and correctly articulated the governing legal principles. Again, the Appellants concede this. The Appellants sole quarrel is with the motion judge’s exercise of discretion. However, I am satisfied that the motion judge took into consideration all relevant factors when exercising his discretion and, consequently, there is no basis for this court to interfere with his decision. [37] The Appellants’ foundational proposition is that the motion judge erred in law by failing to take into account the factors set out at para. 21 of Milios . I reject this proposition for four reasons. [38] First, in determining whether to enforce the settlement, the motion judge’s task was to consider all “relevant factors”: Milios , at para. 19. The factors identified at para. 21 of Milios were important in the circumstances of that case. That does not mean that they are relevant in all cases and that a failure to advert to them on the part of the motion judge is an error in law. [39] Second, at para. 49 of his reasons, the motion judge quoted para. 21 of Milios , showing that he was alive to a consideration of those factors. There was no need to mention that no order giving effect to the settlement had been taken out and no third-party rights were affected because the parties did not contend otherwise. [40] Third, the motion judge fully addressed the relevant factors as identified by the Appellants. One of those factors was the Appellants’ submission that a mistake had been made which warranted the motion judge’s exercise of discretion. The motion judge disagreed. He found that this case was not like Fox Estate v. Stelmaszyk (2003), 65 O.R. (3d) 846 (C.A.), in which the plaintiffs’ lawyer knowingly took advantage of a mistake by counsel for the defendants. On the contrary, the motion judge found that counsel for the Respondents did not take advantage of a mistake on the part of new counsel for the Appellants because she was unaware that new counsel did not know that the Offer was outstanding. What she did know was that new counsel had the Appellants’ full file for a month before she accepted the Offer. The fact that Ms. Yu believed there were no outstanding offers does not undermine the motion judge’s finding that there was no mistake of the sort found in Fox Estate which justified judicial refusal to enforce the settlement. [41] Fourth, the motion judge meaningfully considered the Appellants’ arguments based on the relative prejudice to the parties if the settlement were enforced. He acknowledged that the Appellants’ case appeared to have been strengthened as a result of the expert evidence. However, on the record before him, the motion judge said that he could not adequately assess the parties’ relative positions on the underlying merits of the case and that it “would not be appropriate in any case”. To the extent that the quoted words suggest that it would never be appropriate to assess the underlying merits of the case, I disagree because there may be situations in which it would be appropriate to make that assessment.  However, I agree with the motion judge that, in the circumstances of this case, it would not have been appropriate to engage in such an assessment. [42] The motion judge gave further reasons on the question of the relative prejudice the parties would suffer if the settlement were enforced. He said that allowing a party to avoid an outstanding offer on the basis its position had improved would create uncertainty and defeat the purpose of r. 49. He also noted that he did not have evidence before him that it was the title issues that led to the Respondents selling the Property for $900,000 less than what Ms. Yu had agreed to pay for it. Further, he did not have any expert evidence that the Respondents might have introduced in response to that of the Appellants and stated that relying on the latter as the basis for exercising his discretion would “open the door” to permitting parties to avoid what, in retrospect, may have been an improvident offer. [43] Finally, as the motion judge noted at para. 54 of his reasons, the fact that the Offer reflected a compromise approaching 50% of the amount of the loss claimed made it “difficult to conclude that one party or the other would be unduly prejudiced” in the circumstances. [44] In short, contrary to the Appellants’ assertion, the motion judge fully considered their arguments relating to the “interests of justice” and the degree of prejudice that would be suffered by the respective parties. [45] The motion judge considered all relevant factors before concluding that this was not one those “rare cases” in which the interests of justice favoured the exercise of his discretion to refuse to enforce the settlement. I see no basis on which to interfere with the motion judge’s decision. DISPOSITION [46] Accordingly, I would dismiss the appeal with costs to the respondent fixed at $7,500, all inclusive. Released: March 25, 2021 “J.C.M.” “E.E. Gillese J.A.” “I agree. J.C. MacPherson J.A.” “I agree. I.V.B. Nordheimer J.A.” [1] Unfortunately, Mr. Magnotta passed away during the litigation. Ms. Magnotta continued with the litigation both on her own behalf and as representative of Mr. Magnotta’s estate. [2] There is some confusion in the record on when the expert reports were served on counsel for the Respondents. I have followed the motion judge’s statement on this matter at para. 18 of his reasons.

COURT OF APPEAL FOR ONTARIO CITATION: Makeeva v. Makeev, 2021 ONCA 232 DATE: 20210414 DOCKET: C67320 & C68478 Rouleau, Brown and Miller JJ.A. BETWEEN Natalia Makeeva Applicant (Appellant/Respondent by way of cross-appeal) and Andrey Makeev Respondent (Respondent/Appellant by way of cross-appeal) Ruslana Korytko, for the appellant/respondent by way of cross-appeal John W. Bruggeman, for the respondent/appellant by way of cross-appeal Heard: March 29 by video conference On appeal from the judgments of Justice E. Ria Tzimas of the Superior Court of Justice, dated July 18, 2019 and June 19, 2020 with reasons reported at 2019 ONSC 4334 and 2020 ONSC 3750. REASONS FOR DECISION [1] After a trial of the family law issues, the appellant was ordered to pay $905 per month in spousal support indefinitely on the grounds that, after the dissolution of their 15-year marriage, the respondent was suffering financially. The trial judge also ordered that the appellant pay $17,419.60 as an equalization payment. [2] After the judge issued her decision, the appellant attempted to reopen the trial and file fresh evidence about the respondent’s potential income and his counsel’s alleged misconduct in registering a mortgage on the parties’ matrimonial home. The trial judge dismissed this motion largely on the basis that this evidence would not change her original judgment. [3] The appellant raises five grounds of appeal. She argues that the trial judge erred in: 1. allowing the interpreter to continue interpreting despite the appellant’s stated concerns about her competency; 2. failing to order a lump sum child support payment; 3. imputing the respondent’s income at $28,000 per year; 4. awarding spousal support; and 5. failing to admit the fresh evidence. [4] The respondent cross-appeals and argues that the trial judge erred by failing to deduct the value of a date of marriage asset from the respondent’s net family property. [5] For the reasons that follow, we dismiss the appeal and allow the cross-appeal. The competency of the interpreter [6] The appellant argues that due to the alleged incompetency of the Russian language interpreter there were inaccuracies and omissions in the translation over the course of the trial, and that this affected the appellant’s ability to properly cross-examine the respondent. The appellant maintains that the errors were substantial and resulted in an unfair trial. [7] We disagree. [8] It was only on the seventh day of trial that the appellant’s lawyer, who is fluent in Russian, raised a concern respecting the quality of the translation. When the issue was raised, the trial judge provided three options to the appellant on how to proceed. The appellant chose to continue the trial using the same interpreter. [9] Having chosen to proceed with the interpreter, she cannot now raise this as a ground of appeal. Further, it is significant in our view that we have been provided with no expert evidence as to any inaccuracies that could potentially have changed the outcome on an issue of importance. Was a lump sum child support payment appropriate? [10] The appellant argues that the trial judge ought to have made a lump sum child support payment order. In her submission, it was evident that, since separation, the respondent had regularly failed to pay periodic child support and contribute towards the children’s s. 7 expenses. In her view, therefore, a lump sum child support payment was clearly in the best interests of the children. Despite the appellant’s request for such an order, the trial judge did not, in her reasons, explain why the request was denied. [11] We see no error in the trial judge’s refusal to award a lump sum child support payment. This is an issue of mixed fact and law. Lump sum support is considered appropriate where there is real risk that periodic payments will not be made. The appellant was unable to direct the court to evidence showing that the respondent’s behaviour was indicative of future non-payment of child support. No basis has been provided for interfering with the trial judge’s decision not to award a lump sum child support payment. The imputation of income to the respondent [12] The appellant submits that the trial judge’s decision to impute the respondent’s income at $28,000 is unreasonable. She maintains that the appellant is intentionally underemployed and that the figure the trial judge chose as imputed income is not based on the evidence. [13] Given factors such as the age, education, experience, skills and health of the respondent, as well as the job opportunities he could pursue, the appellant argues that the court should have imputed income to the respondent of $60,000 per year as a licensed journeyman electrician. Alternatively, given that several years earlier the respondent had been a truck driver, the trial judge could have imputed a salary of $50,000, representing the salary he had been earning in that role. [14] We disagree. Imputation of income is an issue of mixed fact at law. The trial judge’s determination is anchored in factual findings which are to be afforded deference and are not to be disturbed without showing that the judge committed palpable and overriding errors. On appeal, the appellant can point to no error, let alone a palpable and overriding error. [15] The trial judge found that the respondent’s English language skills were limited and that he had been working as a handyman for the Russian-speaking community in the Greater Toronto Area. There was no admissible evidence presented at trial to support the suggestion that, although he was qualified as a journeyman electrician, he could have earned anything approaching $60,000 per year. [16] Further, there was no basis to impute to the respondent the income of a truck driver. The respondent gave evidence that he had quit his truck driving job in 2008 due to back problems. The trial judge accepted that evidence. There was no basis in the evidence to find that he could return to that employment. [17] The respondent lives a modest lifestyle. Nothing that he earned suggested an income greater than what he reported in his sworn financial statements. The imputation of income in the amount of $28,000 was reasonable in all of the circumstances. The award of spousal support to the respondent [18] The appellant submits that in determining that she should pay spousal support to the respondent, the court failed to give sufficient consideration, or any consideration, to s. 15.3(1) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) and s. 38.1(1) of the Family Law Act , R.S.O. 1990, c. F.3, which direct the court to give priority to the support of children over an order for spousal support. She argues that the court failed to evaluate the respondent’s claim for spousal support in conjunction with the appellant’s ability to meet both her own and the respondent’s reasonable needs. [19] The appellant also submits that the trial judge ignored relevant case law and made a spousal support order shifting the entire burden of the economic disadvantage of the marriage and its breakdown onto the appellant. As the evidence discloses, she was the primary caregiver for the parties’ children. Had the trial judge properly considered the parties’ financial circumstances as a result of the separation and division of assets, as well as their respective earning capacities, the trial judge ought to have concluded that no spousal support should be paid by the appellant. [20] We dismiss this ground of appeal. The trial judge correctly found that the respondent was entitled to compensatory support resulting from his having forgone paid work and career opportunities in order to care for the children while the appellant was pursuing her nursing degrees. The record also shows a substantial disparity in the income of both parties. The respondent is 62 years old and earning close to minimum wage. The appellant is 38 years old with a prosperous career ahead of her. [21] Based on the respondent’s imputed income of $28,000 and the appellant’s income of $92,000, there is a substantial inequality in the parties’ income. This was a 15-year marriage with two children. In our view, the trial judge’s decision to award spousal support based on the mid-range of the spousal support advisory guidelines for an indefinite duration was reasonable and entitled to deference. The dismissal of the fresh evidence motion [22] After the trial judge gave her decision but before the final order was issued and entered, the appellant brought a motion to present evidence related to two issues: (a) an apparent impropriety by respondent’s trial counsel, who allegedly registered a private mortgage against the matrimonial home and failed to disclose it to the court; and (b) the trial judge’s mistaken belief that the appellant had attempted to establish that the respondent is a master electrician and had misled a judge who had earlier involvement in the matter. [23] The appellant maintains that the court erred in refusing to admit the fresh evidence or in failing to declare a mistrial to avoid a potential miscarriage of justice. The appellant also contests the trial judge’s award of the costs of the motion to the respondent. [24] We see no error in the trial judge’s dismissal of the motion. The trial judge found that even if she had known at trial of the alleged improper mortgage transaction entered into by the respondent’s trial lawyer, it would have had no impact on her assessment of the respondent’s evidence or his lawyer’s representations to the court. The trial judge had already found the respondent’s evidence to be “highly suspect, incongruent, and unreliable”. It is apparent, therefore, that there was no basis to reopen the trial to admit the evidence. [25] As for the documents said to be relevant to the allegation of having misled an earlier judge, the trial judge found that the documents had been available prior to trial and that some had even been put forward, and excluded, as potential evidence. In any event, the judge found that they were of no assistance as they were confirmatory of the income she had imputed to the respondent. The trial judge’s refusal to reopen the trial ought not to be interfered with. There is also no basis upon which to interfere with the trial judge’s decision to award the costs of the motion to the respondent. The respondent’s cross-appeal [26] The respondent submits that the trial judge erred in failing to deduct the agreed value of a solely owned date of marriage asset from the respondent’s net family property. This resulted in an error in the amount of equalization payment owed by the appellant to the respondent. In her reasons, the trial judge found that a condominium owned by the respondent at the date of marriage valued at $64,785 was not a matrimonial home and, as a result, should not be excluded from equalization. Because the condominium was a date of marriage asset of the respondent, she ought, however, to have deducted the value of the condominium from the respondent’s assets in the equalization calculations. [27] The appellant argues that the respondent has taken the trial judge’s finding that the condominium was not a matrimonial home out of context. In her submission, when the judge’s reasons are read as a whole, it is clear that the intention of the court was that the condominium should not be included in the respondent’s pre-married assets because the condominium had been sold and the funds reinvested. It should be excluded from the net family property calculations. [28] In our view, the cross-appeal ought to be allowed. Having found that the condominium was not a matrimonial home, the trial judge ought to have deducted the value of the date of marriage asset in the equalization calculations. Although the trial judge discusses the reinvestment in her reasons, she does not explain why the deduction was not done. [29] Adjusting for the $64,785 condominium that was owned by the respondent at the time of their marriage, and accounting for a $2,000 arithmetic error, the equalization payment ought to have been in the amount of $50,812.10. Conclusion [30] We dismiss the appeal and allow the cross-appeal. The equalization payment ordered by the trial judge is amended to the amount of $50,812.10. Costs payable by the appellant are fixed in the amount of $25,000 inclusive of taxes and disbursements. “Paul Rouleau J.A.” “David Brown J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Malik v. Nikbakht, 2021 ONCA 176 DATE: 20210323 DOCKET: C67101 Feldman, Paciocco and Coroza JJ.A. BETWEEN Sarfraz Malik Plaintiff/Respondent (Appellant) and Amir Nikbakht , Derek Da Silva, and Conbora Formings Inc. Defendants/ Appellant ( Respondent ) Joel Cormier and Hudson Chalmers, for the appellant Theodore P. Charney, Caleb Edwards and James Omran, for the respondent Amir Nikbakht Heard: March 12, 2021 by video conference On appeal from the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated May 22, 2019, with reasons reported at 2019 ONSC 3118, allowing an appeal from the order of Master Charles G.T. Wiebe of the Superior Court of Justice, dated April 30, 2018, with reasons reported at 2018 ONSC 2816. Paciocco J.A.: MATERIAL FACTS [1] On October 10, 2013, a vehicle operated by the appellant, Sarfraz Malik, was involved in a three-car collision. Mr. Malik and the passengers in his vehicle, Mr. Malik’s wife and their three children, were injured. [2] On November 12, 2014, Mr. Malik sued the owners and operators of the other vehicles for damages relating to the injuries he suffered. Notably, Mr. Malik did not include a claim pursuant to s. 61 of the Family Law Act , R.S.O. 1990, c. F.3 (“ FLA ”) for his losses arising from the injuries to his children. [3] Mr. Malik’s wife, Khadija Malik, and his three children brought lawsuits of their own, including against Mr. Malik. Unlike Mr. Malik, they included s. 61 FLA claims for their damages arising from the injuries to each other. [4] In February 2018, more than four years after the accident, Mr. Malik brought a motion for leave to amend his statement of claim to add his own s. 61 FLA claims relating to his losses arising from the injuries to his children. One of the defendants, Amir Nikbakht, the respondent in this appeal, resisted Mr. Malik’s motion, arguing that the s. 61 FLA claims Mr. Malik wanted to advance constituted a new statutory cause of action that was statute barred under the Limitations Act , 2002 , S.O. 2002, c. 24, Sched. B. THE DECISIONS BELOW [5] On April 30, 2018, Master Wiebe of the Superior Court of Justice granted Mr. Malik’s motion for leave to amend his pleadings. Master Wiebe concluded that he was bound by Bazkur v. Coore , 2012 ONSC 3468, 292 O.A.C. 391 (Div. Ct.), a decision by a single judge of the Divisional Court. In Bazkur , the court held that subsequent s. 61 FLA claims added to a timely negligence action are merely claims for additional damages arising from the existing negligence claim and therefore not subject to the two-year limitation period in the Limitations Act , 2002 . [6] Mr. Nikbakht successfully appealed Master Wiebe’s decision to a judge of the Superior Court of Justice. On May 22, 2019, the appeal judge ruled that Master Wiebe was bound by Bazkur , but that he was not. He declined to follow Bazkur after concluding that it was “plainly wrong”. The appeal judge gave extensive reasons supporting his conclusion that a claim under s. 61 FLA is a cause of action distinct from the timely negligence claim brought by Mr. Malik. The s. 61 FLA claims Mr. Malik sought to add were therefore statute barred. Accordingly, the appeal judge set aside Master Wiebe’s order and dismissed Mr. Malik’s motion for leave to amend. THE ISSUE ON APPEAL [7] Mr. Malik now appeals the appeal judge’s decision and seeks an order allowing the amendment to his statement of claim. Mr. Malik argues that the appeal judge erred in law in finding that his s. 61 FLA claims constituted a cause of action distinct from his negligence claim. He submits that he has already pleaded, in a timely manner, the same acts of negligence on the part of the defendants that support the s. 61 FLA claims and is simply seeking recovery under another head of damages. [8] As I will explain, I would not give effect to this appeal. ANALYSIS [9] In my view, the appeal judge was correct in holding that a s. 61 FLA claim is a cause of action that, in Mr. Malik’s case, is statute barred. [10] As the appeal judge correctly acknowledged, the common law does not permit family members to sue for compensation for injuries to their relatives. He explained, at para. 26, that s. 61(1) FLA therefore “created” a statutory cause of action that did not previously exist at common law: Camarata v. Morgan , 2009 ONCA 38, 246 O.A.C. 235, at para. 10. [11] Section 61(1) FLA provides: If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, … children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction. [12] As put by Laskin J.A. (concurring), this provision “dramatically expanded recovery”: Macartney v. Warner (2000), 46 O.R. (3d) 641 (Ont. C.A.), at para. 51. [13] Significantly, the new cause of action created by s. 61 of the FLA is “derivative”: Camarata , at para. 9. In other words, Mr. Malik’s s. 61 FLA claim would be for his damages arising out of injuries caused to his children as the result of allegedly negligent breaches by the defendants of duties of care they owed to his children . As the appeal judge pointed out, at paras. 28-29, this is a fundamentally different claim than Mr. Malik’s negligence action, which claimed damages arising out of his own injuries caused as the result of allegedly negligent breaches by the defendants of duties of care they owed to him . Indeed, as the appeal judge recognized, at para. 17, had Mr. Malik brought his s. 61 FLA claims in a timely way, he could have done so even without instituting a negligence action of his own. [14] I do not read this court’s decision in Ridel v. Cassin , 2014 ONCA 763, which cites Bazkur , at para. 10, as holding that Bazkur was correctly decided. In Ridel , this court cited Bazkur , along with other authorities, only for the uncontroversial proposition that claims for additional damages arising from an existing cause of action in a timely claim are not barred by the Limitations Act , 2002 . The error in Bazkur occurred in the application of that principle. [15] It follows that the appeal judge was correct in finding that Mr. Malik was not entitled to amend his statement of claim to bring a new statutory cause of action outside of the applicable limitation period. DISPOSITION [16] For these reasons, I would affirm the appeal judge’s decision and dismiss Mr. Malik’s appeal. [17] At the end of the hearing, the parties expressed confidence that they could agree to an appropriate amount for costs. If they fail to do so and a costs order is required, either party may notify the Registrar within 15 business days of the release of these Reasons for Decision, and a timeline for the exchange of costs submissions will be provided. Released: Tuesday, March 23, 2021 “K.F.” “David M. Paciocco J.A.” “I agree. K. Feldman J.A.” “I agree. S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Manchanda v. Thethi, 2021 ONCA 127 DATE: 20210301 DOCKET: C66823 Strathy C.J.O., Brown and Miller JJ.A. BETWEEN Jastinder Manchanda Applicant (Appellant) and Sukhvir Thethi Respondent (Respondent) Stephen P. Kirby and Gary S. Joseph, for the appellant Richard H. Parker, Q.C., for the respondent Heard: February 8, 2021 by video conference On appeal from the order of Justice Patrick J. Monahan of the Superior Court of Justice, dated March 21, 2019, with reasons reported at 2019 ONSC 1749, and the costs order dated July 12, 2019, with reasons reported at 2019 ONSC 4239. REASONS FOR DECISION [1] This matter comes before the court a second time. On the first occasion, this court dismissed the respondent’s appeal from an order striking his pleadings as a result of his willful non-compliance with court orders, including orders to make financial disclosure: Manchanda v. Thethi , 2016 ONCA 909, 84 R.F.L. (7th) 374. The court observed that the parties had been engaged in “high conflict matrimonial litigation”, which gave rise to “countless court attendances resulting in court orders from at least ten different judges”. [2] The matter eventually proceeded to an uncontested trial, which the respondent was permitted to attend as an observer. [3] The appellant appeals various aspects of the trial judge’s disposition of her claims. We deal with each of her complaints below. In overview, we see no error in the trial judge’s thorough reasons. Before turning to the grounds of appeal, we address whether the respondent is entitled to make submissions on the appeal. No right of audience [4] The appellant submits that the respondent should not be permitted to participate in the appeal. She describes the appellant as a “serial” violator of court orders. The respondent also remains in default of approximately $45,000 of court ordered costs. This court’s decision in Abu-Saud v. Abu-Saud , 2020 ONCA 824, reaffirmed that an audience will not be granted to a party who is in default of court orders: see also Dickie v. Dickie , 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6. In Murphy v. Murphy , 2015 ONCA 69, 56 R.F.L. (7th) 257, the party in default was the respondent to the appeal, as is the case here. [5] After hearing the appellant’s submissions, and submissions from the respondent’s counsel on the issue of his client’s standing on the appeal, we concluded that the respondent’s default was both deliberate and willful. We advised the respondent’s counsel that we would not hear submissions from him. Nor would we consider a document he had filed with the court on the day of the appeal, purportedly containing a calculation of the equalization payment. First ground: trial judge allowed respondent to participate indirectly [6] The Family Law Rules , O Reg 114/99, provide that the court may deal with a party’s failure to follow the rules, including a failure to make proper disclosure, by striking out any or all documents filed by that party. This consequence stems from the need to sanction and deter non-disclosure of assets, which has been described as the “cancer of family law”: Leskun v. Leskun , 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 4, citing Cunha v. Cunha (1994), 99 B.C.L.R. 93 (S.C.). [7] The appellant submits that the trial judge imposed an unfair evidentiary burden on her and erred in failing to draw adverse inferences against the respondent where his documents had been struck. As a result, the appellant claims that the trial judge ultimately allowed the respondent to benefit from his own misconduct. [8] In Meade v. Meade (2002), 31 R.F.L. (5th) 88 (Ont. S.C.), Kiteley J. held that where disclosure is inadequate and inferences must be drawn, they should be in favour of the compliant party: at para. 81. The appellant submits that the trial judge failed to abide by this principle. The appellant also submits that the trial judge failed to recognize that once the respondent’s documents were struck, the documents of the compliant party should be accepted. [9] The appellant cited three instances in which the trial judge failed to accept the information in her documents: her claim to a constructive or resulting trust in the rental property, the respondent’s percentage of ownership of his company, A4U Limited, and the appellant’s valuation of the matrimonial home. In doing so, the appellant submits the trial judge permitted the respondent to “re-enter the proceeding”. [10] We disagree. Rule 1(8.4) of the Family Law Rules , which establishes the consequences of striking out documents, does not automatically exclude the defaulting party from the proceeding. Instead, it intentionally removes the party’s entitlement to notice and participation. The court may nevertheless permit participation by the defaulting party, to the extent it will assist the court. [11] Referring to para. 81 of Meade , the trial judge acknowledged that in view of the respondent’s failure to make adequate financial disclosure, “there is broad discretion for a court to draw reasonable inferences for the purpose of resolving property issues or imputing income”. Contrary to the appellant’s assertion, the striking of the respondent’s documents did not mean that the trial judge was compelled to accept her evidence at face value. In an uncontested trial, the trial judge was entitled, indeed required, to probe the appellant’s evidence to ensure a just result. [12] As this court stated at para. 49 of Purcaru v. Purcaru , 2010 ONCA 92, 75 R.F.L. (6th) 33 and confirmed in Mullin v. Sherlock , 2018 ONCA 1063, 19 R.F.L. (8th) 1: “the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court…This is because denying a party the right to participate at trial may lead to factual errors giving rise to an injustice”. [13] The principle from Purcaru is applicable here. It is apparent from the record that the appellant’s own documentation was deficient in many respects, that she was over-reaching in some respects, and that her evidence shifted in the face of the trial judge’s inquiries. From our observations of the record, the trial judge did not impose an unfair burden on the appellant. On the contrary, he wanted to be satisfied that his findings of fact were based on credible and reliable evidence. [14] Pursuant to Rule 2 of the Family Law Rules , trial judges in family law proceedings have great latitude to use their discretion to adjudicate cases fairly: Titova v. Titov , 2012 ONCA 864, 29 R.F.L. (7th) 267, at para. 48. The trial judge’s approach appropriately reflected the court’s obligation to guard against the risk of factual errors in the face of only one party’s evidence and documents. Second ground: constructive trust [15] The appellant submits that the trial judge erred in failing to recognize a constructive trust in her favour. She submits that the issue of net family property and constructive trust are linked. In the net family property calculation, the trial judge reduced the value of the matrimonial home from the current value to the value on valuation day. The appellant submits that the value she put forward reflected her contribution to the property and that the trial judge’s reduction of the property value failed to acknowledge her contributions – contributions that, the appellant submits, are tied to the constructive trust. [16] The appellant concedes that in the vast majority of cases, a married couple’s division of property will be governed by the net family property statutory scheme. However, in some circumstances, a party may seek the equitable remedy of a constructive trust. In this case, the appellant submits that the trial judge should have recognized that a trust was created through unjust enrichment. She submits that this is an appropriate case to recognize a constructive trust because her contribution to the business of the rental property, including financial contribution, was substantial. [17] The trial judge noted that in family law cases there is an expectation that the net family property calculations will address unjust enrichment. However, the appellant submits that unjust enrichment is not always addressed in the statutory scheme: Martin v. Sansome , 2014 ONCA 14, 118 O.R. (3d) 522. For example, the net family property equalization does not account for unjust enrichment when there is a significant increase in value due to one party’s contribution. The appellant submits that her contributions were ignored and that this constitutes a reviewable error. The appellant submits that she met the test for unjust enrichment, and that the trial judge failed to properly engage with the test, simply saying that the appellant failed the test. [18] We disagree. The trial judge considered the appellant’s submissions and held that this was not an exceptional case as described in Martin . In this case, any unfairness that might otherwise arise out of unequal contribution could adequately be addressed by the equalization of net family property. The trial judge’s conclusion is consistent with s. 5(6) of the Family Law Act , R.S.O. 1990, c. F. 3. Third ground: spousal support [19] The appellant submits that the trial judge failed to acknowledge that “loss of opportunity” factors are not the only factors to be considered in a compensatory spousal support claim. The appellant submits that compensatory support should also address sacrifices and contribution. The appellant contributed to the rental business by collecting rent and dealing with defaulting renters, among other things. The appellant submits that the trial judge failed to recognize these contributions and articulated a narrow definition for compensatory support. In the appellant’s submission, this was an error and “ignores the second half of s. 15.2(6) [of the Divorce Act , R.S.C. 1985 c. 3. (2nd Supp)]”. [20] In our view, the trial judge did not err. The trial judge specifically acknowledged, at para. 58 of his reasons, the “expansive approach” to considering a compensatory basis for spousal support. He simply found that, based on the facts before him, the appellant failed to establish an entitlement to spousal support on compensatory or other grounds. His conclusion is entitled to deference. Fourth ground: vesting order [21] The trial judge dismissed the appellant’s request for an order pursuant to s. 9(1)(d) of the Family Law Act . The appellant sought an order that a property owned by the respondent, valued at $870,000, be transferred to her in satisfaction of the judgment if the respondent had not paid the judgment within 120 days. In rejecting this relief, the trial judge reasoned that such an order would constitute a windfall to the appellant because the value of the property exceeded the amount of the judgment. He also noted that there could be third parties with an interest in the property. [22] The appellant submits that this was an appropriate case for a vesting order due to the respondent’s persistent breaches of court orders. She acknowledges that granting a vesting order is discretionary, but submits that the trial judge should have imposed a partial charge on the property. The appellant concedes that this option was not proposed to the trial judge. [23] The trial judge cannot be faulted for failing to grant a remedy that was not requested at trial. We would not interfere with the exercise of his discretion. Fifth ground: costs [24] In the event the appeal is dismissed, the appellant seeks leave to appeal the costs award. She submits that the costs award was unreasonably low and had the effect of punishing her for the respondent’s misconduct. [25] We do not agree. The trial judge awarded costs of $80,000, all-inclusive, about half the amount claimed by the appellant on a full indemnity basis. He found that while the rates charged by counsel were reasonable, and much of the time spent was necessary, the costs award should reflect the fact that many of the appellant’s claims were rejected in whole and in part. He also found that the appellant conducted the litigation in a way that needlessly added to its length and complexity. [26] In arriving at the costs award, the trial judge considered the relevant principles in Rule 24(12)(a) of the Family Law Rules . The appellant has identified no error in principle and no error in the exercise of the trial judge’s discretion. We dismiss the application for leave to appeal costs. Disposition [27] For these reasons, the appeal is dismissed. In all the circumstances, we make no order as to costs. “G.R. Strathy C.J.O.” “David Brown J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Manicom v. Manicom, 2021 ONCA 399 DATE:  20210607 DOCKET: C69099 Rouleau, Hoy and van Rensburg JJ.A. BETWEEN Donald Conrad Manicom, Conrad Refrigerated Trucking Inc. and Manicom Holdings Inc. Applicants (Appellants/ Respondents by way of cross-appeal) and Michele Ann Manicom Respondent (Respondent/ Appellant by way of cross-appeal) Michael A. Polvere and James R. Leslie, for the appellants/respondents by way of cross-appeal J. Douglas Skinner and Justin Newman, for the respondent/appellant by way of cross-appeal Heard and released orally: June 4, 2021 by video conference On appeal from the order of Justice Jonathon C. George of the Superior Court of Justice, dated February 3, 2021, with reasons reported at 2021 ONSC 855, and from the costs order, dated March 29, 2021. REASONS FOR DECISION [1] The individual appellant, Donald Conrad Manicom, and the respondent are separated spouses engaged in a matrimonial dispute. Each owns 50% of the shares of two corporations (the “Corporations”). The respondent refused to complete the sale of her shares in the Corporations to the appellant on the scheduled closing date, asserting that she had not agreed to the Non-Solicitation and Non-Competition Agreement (“NCA”) which formed part of the closing documents. Mr. Manicom was unwilling to purchase the respondent’s shares without the NCA. [2] Mr. Manicom and the Corporations sought an order for specific performance, compelling the respondent to execute the documents, including the NCA, necessary to complete the sale of her shares in the Corporations to Mr. Manicom. The application judge held that, on the evidence before him, he could not find that the respondent had agreed to the NCA. Accordingly, he dismissed the application. [3] The application judge awarded costs to the respondent in the all-inclusive amount of $9000. [4] Mr. Manicom and the Corporations appeal the order dismissing their application. The respondent seeks leave to cross-appeal the order as to costs. [5] The appellants repeat arguments that they made to the application judge, principally that, objectively, the respondent would have expected that she would be required to enter into a non-solicitation and non-competition agreement in connection with the sale of her shares and that the terms of the agreement drafted by them were reasonable. They also say that the fact that the parties’ counsel engaged in negotiations of the terms of the NCA after the scheduled closing date shows that the parties had agreed in principle that there would be a non-solicitation and non-competition agreement with a five-year term. We note that the appellants concede that the parties did not agree as to the end date of the NCA in those negotiations. [6] The application judge accepted that a non-solicitation and non-competition agreement is a standard term in a transaction such as this and that “it is hard to imagine that the Respondent did not and does not know this.” However, the fact was that it was not a topic of discussion during the negotiation period and the best evidence was that the respondent had not discussed such an agreement with her counsel before the closing date. The application judge noted that there was no written agreement and no evidence of a verbal agreement. He found that neither the respondent’s lawyer’s receipt and presentation of the closing documents to the respondent nor the lawyers’ exchanges about the NCA after the scheduled closing date gave rise to a valid and enforceable contract. [7] There is no basis for this court to interfere with the application judge’s finding that the respondent had not agreed to the NCA. [8] As to the cross-appeal as to costs, we agree with the respondent that to the extent that the application judge may have taken into account the respondent’s decision not to enter into the NCA on the appellants’ terms, the application judge misdirected himself. However, in all the circumstances, we consider that the amount of the costs awarded was reasonable. [9] Accordingly, we dismiss the appeal and deny leave to appeal the order as to costs. The respondent shall be entitled to costs in the agreed amount of $10,000. “Paul Rouleau J.A.” “Alexandra Hoy J.A.” “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375 DATE: 20210531 DOCKET: M52417, M52418 & M52419 Jamal J.A. (Motions Judge) DOCKET: M52417 BETWEEN Marchant Realty Partners Inc., as agent Responding Party and 2407553 Ontario Inc., 2384648 Ontario Inc., 2384646 Ontario Inc., 24000196 Ontario Inc. and 2396139 Ontario Inc. Moving Parties DOCKET: M52418 AND BETWEEN Marchant Realty Partners Inc., as agent Responding Party and 4544 Zimmerman Avenue LP and 4544 Zimmerman Avenue GP Inc. Moving Parties DOCKET: M52419 AND BETWEEN Marchant Realty Partners Inc., as agent Responding Party and 4267 River Road LP and 4267 River Road GP Inc. Moving Parties Steven L. Graff, Miranda Spence and Stephen Nadler, for the moving parties Sara-Ann Wilson and Kenneth Kraft, for the responding party Zeifman Partners Inc. Heard: May 20, 2021 by video conference REASONS FOR DECISION [1] The moving parties are debtors (“Debtors”) over whose assets, undertakings, and real property the responding party Zeifman Partners Inc., (“Receiver”) is the court-appointed receiver and manager. The Debtors seek leave to appeal to this court under s. 193(e) of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 (“ BIA ”), from orders of Cavanagh J. (“motion judge”) of the Superior Court of Justice (Commercial List) dated March 25, 2021, approving the Receiver’s proposed sale process and list prices for five commercial properties in downtown Niagara Falls, Ontario (“Properties”). [2] For the reasons that follow, the motions for leave to appeal are dismissed. Background [3] Marchant Realty Partners Inc. (“Agent”), as agent for a group of lenders (“Lenders”), commenced three related receivership proceedings before the Commercial List concerning loans the Lenders made to the Debtors. The loans matured over three years ago, some loans more than four years ago. As of October 2020, the Debtors owed more than $16 million under the loans. [4] The three receivership applications were originally scheduled for September 2018 but were adjourned five times to give the Debtors more time to refinance the Properties. The refinancing never happened. [5] With no refinancing or repayment plan on the horizon, the Agent moved forward with the receivership applications. In August 2020, Gilmore J. of the Commercial List appointed the Receiver as receiver and manager over the Debtors’ Properties, although the appointment was stayed for just over two months to give the Debtors one last chance to repay the loans. They could not do so, and the Receiver’s appointment became effective in mid-October 2020. [6] The Properties are about 4 km from the tourist area of Niagara Falls. The Properties are mixed-use commercial properties (most needing repairs), a seasonal operating motel (closed because of the pandemic), and vacant land. [7] The Receiver is authorized to market the Properties, including advertising them for sale, soliciting offers to buy them, and negotiating such terms as the Receiver deems appropriate. The Motion Judge’s Decision [8] The Receiver recommended list prices for the sale of Properties based on: (1) independent appraisals from two local appraisers, Humphrey Appraisal Services Inc. and Jacob Ellens & Associates Inc.; (2) recommended list prices for the Properties from three real estate brokerages; and (3) discussions with Jones Lang LaSalle Real Estate Services, the proposed listing brokerage, which has expertise selling properties around Niagara Falls. Even with these list prices, the Lenders will lose money on their loans to the Debtors. [9] The Debtors opposed the proposed list prices and relied on competing appraisals of Colliers, a commercial real estate firm. Colliers’ appraisals — which focussed on the development potential of the Properties — were almost 300% higher than the Receiver’s list prices. The Debtors asked the motion judge to direct the Receiver to list the Properties at Colliers’ proposed prices for 60 days to see what the market will bear. [10] By order dated March 25, 2021, the motion judge approved the Receiver’s proposed sale process and list prices for the Properties. The motion judge found: The Receiver is an officer of the court with duties to all stakeholders. In my view, the Receiver has shown that it is acting in good faith and diligently to discharge its duties to deal with the [Properties] in a commercially reasonable manner. The Receiver has reviewed the Colliers appraisals and the information upon which Colliers relies for its appraisals of the [Properties]. The Receiver has explained why it does not agree with the Colliers appraisals, and why it has recommended that the sale process be approved. I have considered the process which the Receiver has followed and the information upon which it relies to support its recommendations. The [Debtors] have not shown that the Receiver followed a flawed procedure. I am not satisfied that this is an exceptional case where it is proper for me to reject the business judgment made by the Receiver. The Test for Leave to Appeal Under s. 193(e) of the BIA [11] The moving parties seek leave to appeal from the motion judge’s orders under s. 193(e) of the BIA . This provision provides that, unless an appeal lies as of right or as otherwise expressly provided, an appeal lies to the Court of Appeal “from any order or decision of a judge of the court … by leave of a judge of the Court of Appeal”. [12] In deciding whether to grant leave under s. 193(e) of the BIA , this court considers the following principles: · Granting leave is “discretionary and must be exercised in a flexible and contextual way”: Business Development Bank of Canada v. Pine Tree Resorts Inc. , 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29. · In exercising its discretion, the court should examine whether the proposed appeal: (1) raises an issue of general importance to bankruptcy/insolvency practice or the administration of justice, and is one this court should address; (2) is prima facie meritorious; and (3) would not unduly hinder the progress of the bankruptcy/insolvency proceedings: Pine Tree Resorts , at para. 29; McEwen (Re) , 2020 ONCA 511, 452 D.L.R. (4th) 248, at para. 76. Should this Court Grant Leave to Appeal? (1) Does the proposed appeal raise an issue of general importance to bankruptcy/insolvency practice or the administration of justice? [13] The Debtors assert that the proposed appeal raises an issue of general important to bankruptcy/insolvency practice. They frame the issue on the proposed appeal as “the extent of the deference that the Court owes to a receiver’s business judgment when approving a sale process.” They claim the appeal “will provide guidance to receivers as they consider the level of scrutiny they may expect from the Court, and to other stakeholders as they consider whether to challenge the actions taken by any given receiver.” [14] The Receiver frames the issue on appeal much more narrowly. It claims the appeal “is highly fact-specific and concerns, in essence, the appropriate list prices” of the Properties. It says no legal principles are in dispute and the appeal will have “no bearing or importance for the practice of insolvency and the administration of receivership proceedings.” [15] I agree with the Receiver. Although on any appeal the court would consider and apply the principles of deference applicable to a receiver’s business judgment, those principles are not in dispute. They were correctly stated by the motion judge, who cited this court’s decision in Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), at para. 23: Underlying these considerations are the principles the courts apply when reviewing a sale by a court-appointed receiver. They exercise considerable caution when doing so, and will interfere only in special circumstances — particularly when the receiver has been dealing with an unusual or difficult asset. Although the courts will carefully scrutinize the procedure followed by a receiver, they rely upon the expertise of their appointed receivers, and are reluctant to second-guess the considered business decisions made by the receiver in arriving at its recommendations. The court will assume that the receiver is acting properly unless the contrary is clearly shown. See Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1, 83 D.L.R. (4th) 76 (C.A.). [16] On the Debtors’ argument, the appeal would involve the application of these settled principles. However, applying settled principles of deference to the Receiver’s business decisions here would not raise an issue of general importance to bankruptcy/insolvency practice or the administration of justice. [17] The Debtors also say the motion judge failed to apply the correct legal test for evaluating whether a receiver has acted properly in selling a property, as stated in Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.). This issue relates to the deference issue because the Debtors claim the motion judge failed to cite or apply the Soundair test and instead was unduly deferential to the Receiver. I will consider this argument below in evaluating whether the proposed appeal is prima facie meritorious. (2) Is the proposed appeal prima facie meritorious? [18] In evaluating whether the proposed appeal has prima facie merit, I begin by noting that this court gives substantial deference to the discretion of commercial court judges supervising insolvency and restructuring proceedings and does not intervene absent demonstrable error: Ravelston Corp. Ltd. (Re) , 2007 ONCA 135, 85 O.R. (3d) 175, at para. 3. [19] As already noted, commercial court judges also give substantial deference to the decisions and recommendations of a receiver as an officer of the court. If the receiver’s decisions are within the broad bounds of reasonableness and the receiver proceeded fairly, after considering the interests of all stakeholders, the court will not intervene: Ravelston , at para. 3; Regal Constellation Hotel , at para. 23. A court “will assume that the receiver is acting properly unless the contrary is clearly shown”: Regal Constellation Hotel , at para. 23. [20] The Debtors assert, however, that this court would overcome the deference shielding the receiver’s business judgments and the motion judge’s review of those judgments because the motion judge made an extricable error of law. The Debtors say the motion judge erred in law by failing to state or apply the Soundair test for evaluating whether a receiver has acted properly in recommending list prices for the Properties. [21] The Soundair test in the context of a sale involves consideration of: · Whether the receiver made sufficient effort to obtain the best price and did not act improvidently; · The interests of the parties; · The efficacy and integrity of the process by which offers were obtained; and · Whether there has been unfairness in the working out of the process: Soundair , at p. 6; Regal Constellation Hotel , at para. 24. [22] The Debtors claim that the motion judge did not cite or apply the Soundair test but instead applied a new, two-part test: (1) the respondent on a motion to approve a sale process must show the receiver followed a flawed process in developing its sale process; and (2) only if that hurdle is cleared may the respondent challenge the sale process itself. [23] I do not accept the Debtors’ submission. Although I agree the motion judge did not expressly set out the Soundair test, he cited Soundair elsewhere in his reasons. As an experienced commercial judge, he was familiar with the Soundair test and applied it in his reasons: · Whether the receiver made sufficient effort to obtain the best price and did not act improvidently — The motion judge found that the Receiver made sufficient effort to obtain the best and most realistic list price and did not act improvidently. He noted that the Receiver “reviewed the Colliers appraisals and the information upon which Colliers relies for its appraisals of the [Properties]. The Receiver has explained why it does not agree with the Colliers appraisals, and why it has recommended that the sale process be approved.” The motion judge also noted that the Receiver explained why listing the Properties for 60 days at Colliers’ proposed list prices could “result in little to no interest in the sale process, with the result that properties languish on the market and ultimately require drastic price reductions to generate interest.” This could lead to “lower recoveries than what would have been possible had the property [been] listed for sale at an appropriate price at the outset.” · The interests of the parties — The motion judge found that the Receiver considered the interests of all parties in proposing the suggested list prices. He noted that “[t]he Receiver is an officer of the court with duties to all stakeholders”, which included the interests of the Debtors. He found that “the Receiver has shown that it is acting in good faith and diligently to discharge its duty to deal with the [Properties] in a commercially reasonable manner.” · The efficacy and integrity of the process by which offers were obtained — The motion judge considered the integrity of the process by which the list prices were recommended. He “considered the process which the Receiver has followed and the information upon which it relies to support its recommendations.” He found that “[t]he [Debtors] have not shown that the Receiver followed a flawed procedure”. · Whether there has been unfairness in the working out of the process — The motion judge found no unfairness in the process that the Receiver followed. He found the Receiver properly considered and responded to Colliers’ appraisals. The proposed list prices did not result from any unfairness. [24] I thus conclude the motion judge applied the Soundair test. I see no extricable error of law or any basis to interfere with his decision. [25] The proposed appeal therefore lacks prima facie merit. (3) Would the proposed appeal unduly hinder the progress of the receivership proceedings? [26] Lastly, the Debtors assert that the proposed appeal would not unduly hinder the progress of the receivership proceedings. They say the Debtors have no other assets, so all the Receiver has left to do is list and sell the Properties. The Debtors agree to expedite the appeal and claim that any minor delay in the sale process is not enough to deny leave to appeal. [27] I disagree. All the loans in issue matured at least three years ago, some four years ago. Over two years have passed since the original return date of the receivership applications. There have been further delays to allow the Debtors to refinance the Properties, which they could not do. Substantial property taxes are accruing on the Properties and the Receiver is responsible for their ongoing carrying costs, which rank ahead of the Lenders’ mortgages and are thus eroding their potential recovery. Further delay in the Receiver’s ability to sell the Properties will only further degrade the Lenders’ security position and should not be permitted. [28] I thus conclude the proposed appeal would unduly hinder the progress of the receivership proceedings. Disposition [29] The motions for leave to appeal are dismissed. As agreed by the parties, there shall be no order as to costs. [30] As jointly requested by the parties, pending further order the unredacted versions of the Debtors’ factums shall remain under seal and will not be publicly available because they contain commercially sensitive and confidential information about the Receiver’s and Debtors’ proposed list prices for the Properties. “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Marmolejo (Re), 2021 ONCA 130 DATE: 20210302 DOCKET: C67649 Tulloch, Paciocco and Harvison Young JJ.A. IN THE MATTER OF: Alfredo G. Marmolejo AN APPEAL UNDER PART XX.1 OF THE CODE Alfredo G. Marmolejo, acting in person Anita Szigeti and Maya Kotob, for the appellant Lisa Fineberg , for the respondent, Attorney General of Ontario Leisha Senko and Michele Warner, for the respondent, Person in Charge of Centre for Addiction and Mental Health Heard: August 21, 2020 by video conference On appeal from the disposition of the Ontario Review Board dated September 25, 2019, with reasons reported at Marmolejo (Re) , [2019] O.R.B.D. No. 2378. Tulloch J.A.: A. OVERVIEW [1] The appellant appeals from the September 25, 2019 disposition of the Ontario Review Board (the “Board”), which continued the appellant’s conditional discharge. That conditional discharge was one of several annual conditional discharges that followed an August 2010 determination that the appellant was not criminally responsible on account of mental disorder (“NCR”) in relation to two index offences. [2] The Board released its reasons for disposition on October 16, 2019. It determined that the appellant remained a significant threat to the safety of the public. It further concluded that the only way to manage that threat was a continuation of a conditional discharge with a new term requiring the appellant to submit urine samples for alcohol and drug screening. [3] The appellant argues that the Board erred in law and arrived at an unreasonable disposition. First, the appellant contends that the Board erred in its application of the significant risk test by simply accepting the evidence and not offering any analysis. Second, and along a similar vein, the appellant submits that the Board’s reasons for disposition are insufficient. The appellant submits that the proper application of the significant risk test does not support the Board’s determination on this issue. The appellant seeks an order for an absolute discharge. Alternatively, he asks this court to remit the matter to the Board for a re-hearing before a differently constituted panel. [4] For reasons that follow, I agree with the appellant’s position. The Board did not conduct a proper assessment of whether the appellant met the significant risk threshold, as evident by the complete lack of analysis on this point. The evidence before the Board could not support a finding that the appellant constituted a significant risk to the public. He was therefore constitutionally entitled to an absolute discharge. [5] In ordinary circumstances, an absolute discharge would be the appropriate disposition. However, a month after this appeal was heard, the Board convened for the appellant’s 2020 annual disposition review hearing. On November 2, 2020, it held that the appellant no longer represented a significant risk to the public and granted an absolute discharge: Marmolejo (Re), [2020] O.R.B.D. No. 2277. In other words, the appellant’s request for relief is now moot. I would nonetheless address the merits of this appeal in order to provide guidance to the Board. B. FACTUAL BACKGROUND (1) The Appellant’s Psychiatric History [6] The appellant’s psychiatric history dates back to 1987 when he was a teenager. He was first hospitalized at age 15 when police found him “wandering in the streets” and “crossing in traffic.” His mother reported that he experienced symptoms of paranoia and suspiciousness in the years following his hospitalization. [7] In September 2005, the appellant was found NCR for a charge of arson. A doctor diagnosed him with schizophrenia and depression. He was transferred to a minimum secure unit in November 2005. By September 2006, he was spending weekends with his parents. After a hearing in November 2006, the Board issued a minimum-security detention order with community living privileges. In December 2006, he was discharged to live in an apartment in the community. Just under a year later, in November 2007, the Board issued a conditional discharge. The appellant’s mental status remained stable and he was compliant with his medications. [8] At his 2008 annual disposition review hearing, the Board granted the appellant an absolute discharge. The appellant reported that he stopped taking his medication approximately one year after his discharge. Between 2009 and 2010, he was hospitalized pursuant to the Mental Health Act , R.S.O. 1990, c. M. 7 on three occasions. (2) The Index Offences [9] In April 2010, the appellant was convicted of one count of criminal harassment and one count of failing to comply with a probation order. On August 24, 2010, the appellant was found NCR for these offences. At the time, the appellant was delusional, paranoid, and verbally aggressive. He was treated with medication and sentenced to a period of incarceration, followed by a period of probation for two years. These two index offences form the subject matter for the disposition of the Board that is now at issue. (3) The Board’s Dispositions Between 2010 and 2019 [10] On November 8, 2011, the appellant was discharged to live in an apartment at a temporary transitional housing facility. Eleven months later, he moved in with his family. By 2012, his medication was reduced. [11] In 2013 the appellant was briefly hospitalized when his parents reported he was experiencing auditory hallucinations. His medications were increased. He returned to live with his parents, and then moved into an apartment shortly thereafter. [12] The Board issued a conditional discharge on May 20, 2014. His medications were decreased. His mental status remained stable and he continued to adhere to his medication regime. He continued to live independently and began working for his brother on a part-time basis. [13] At annual disposition reviews conducted from 2015 to 2018, the appellant unsuccessfully sought to receive an absolute discharge: each time the Board found that he continued to pose a significant threat, and either added or removed conditions of his discharge. [14] From 2018 to 2019 the appellant continued to reside independently in his subsidized apartment in Toronto without incident. He received financial support through the Ontario Disability Support Program (“ODSP”) and from his parents. He maintained his relationship with his girlfriend. There were no changes to his medication. (4) The 2019 Hearing Before the Board [15] In 2019, the Board released its sixth consecutive disposition continuing the conditional discharge, this time reinserting a term requiring the appellant to submit urine samples for alcohol and drug testing. That disposition is the subject of this appeal. [16] At the 2019 hearing, the Board received written and oral evidence by way of the Hospital’s report to the Board and the testimony of Dr. Choptiany, who is the appellant’s outpatient psychiatrist. [17] Dr. Choptiany testified that the appellant had been compliant with his reporting requirements and accepts that he has schizophrenia. Dr. Choptiany also testified that the appellant has stated that he would continue to take his medication in the event that he was granted an absolute discharge. [18] Dr. Choptiany expressed concern regarding the appellant’s “attitude” toward his index offences. In particular, Dr. Choptiany opined that the appellant had downplayed the significance or severity of the behaviours that occurred at the time of the index offences. The Hospital’s report also noted that the appellant was “unable to link his illness to his behaviours at the time of the index offence.” [19] Both the Hospital’s report and Dr. Choptiany also noted that the appellant’s therapeutic relationship with his psychiatric team deteriorated significantly over the course of the reporting year. It appeared that at least part of the reason was that the appellant was frustrated with his continued supervision by the Board, and the fact that he still had not received an absolute discharge. In his testimony, Dr. Choptiany suggested that it might be helpful if the Board’s disposition required the appellant to submit to urine sampling. He was of the view that such testing could assist the psychiatric team in determining why the appellant’s demeanor changed. [20] Dr. Choptiany opined that the appellant still posed a ‘significant threat’ based on the diagnosis of schizophrenia, along with the appellant’s history of non-compliance with medication, substance abuse, aggressive behavior, and limited insight into his situation. [21] Dr. Choptiany further observed that if the appellant were no longer under the jurisdiction of the Board, he would discontinue his medications, likely use alcohol or illegal substances, and again become psychotic, which would put the public at risk of harm. C. THE DECISION OF THE BOARD [22] In the reasons for disposition of the Board dated October 16, 2019, the Board set out a brief summary of the two index offences, the appellant’s personal history, and the legal and psychiatric history. The Board then summarized the appellant’s progress over the past year in four paragraphs, which consisted mainly of a lengthy quote from the Hospital’s report. [23] In dealing with the issue of whether the appellant posed a “significant threat”, the Board stated only the following: 18. The Hospital’s report contains information concerning the issue of significant threat to the safety of the public including: ''If Mr. Marmolejo were to reoffend, it would flow from noncompliance with antipsychotic medication potentially exacerbated by the use of substances. Mr. Marmolejo has demonstrated limited insight into the specific benefit of a reduced risk for violent or harassing behaviour as emanating from ongoing compliance with antipsychotic medication. While he has reported that he would continue taking his medications if no longer under the ORB, it is considered likely that he would stop or reduce the dose of his medication if no longer under the ORB. Risk of violent behaviour would gradually arise as a result of noncompliance. The risk would be exacerbated in the event of his reverting to use of cannabis, which has historically contributed to a paranoid state of mind and the emergence of other psychotic symptoms in Mr. Marmolejo." 19. In his oral testimony Dr. Choptiany confirmed that Mr. Marmolejo remains a significant threat to the safety of the public because he has limited insight into the nature of his illness. He has a past history of substance use. When he is unwell, he is aggressive and is capable of physical and psychological harm. If he did go off his medication, he would fall away from care and decompensate particularly since his therapeutic relationship with his clinical team has deteriorated so badly in the last year. [24] The Board then concluded as follows: 21. The evidence in this case establishes that Mr. Marmolejo continues to represent a significant threat to the safety of the public. This panel accepts that evidence . This panel is also satisfied that the only way to manage the threat is by the maintenance of the conditional discharge with the addition of a urine screen for alcohol and the nonmedical use of drugs. In our view, this is the necessary and appropriate order. It is also the least onerous and least restrictive order in the circumstances of this case. [Emphasis added.] D. POSITION OF THE PARTIES [25] The appellant submits that the Board’s disposition was unreasonable and rested on an error of law. He argues that the Board failed to conduct a proper assessment as to whether the appellant was a significant threat to the safety of the public. The appellant submits that he does not meet the threshold of significant risk. He takes issue with the imposition of a conditional discharge, as well as the addition of a new condition requiring him to submit urine samples. [26] The appellant also argues that the Board provided insufficient reasons. In particular, he notes that there is no “analysis” section: the Board simply states its conclusion that the appellant posed a significant risk. The Board failed to explain how it applied the statutory test, how it dealt with the material evidence before them, or how it reached its conclusion that the appellant remains a significant threat to the safety of the public. [27] The respondents submit that the Board made no error in its application of the significant threat test; there was sufficient evidence before the Board to reach its conclusion; and the reasons provided by the Board were legally sufficient. E. ANALYSIS (1) Standard of Review [28] This court may set aside an order of the Board only where it is of the opinion that: (a) the decision is unreasonable or cannot be supported by the evidence; (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice: Criminal Code , R.S.C., 1985, c. C-46, s. 672.78(1); R. v. Owen , 2003 SCC 33, 174 C.C.C. (3d) 1, at para. 31. [29] The standard of review under s. 672.78(1)(a) is one of reasonableness. The court should ask itself whether the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination: Owen , at para. 33, citing Canada (Director of Investigation and Research) v. Southam Inc ., [1997] 1 S.C.R. 748, at para. 56. [30] If the Board’s decision could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene: Owen , at para. 33. As this court explained in Sokal (Re), 2018 ONCA 113, at paras. 12-13: An appellate court must always recall the difficulty of assessing whether a given individual poses a significant threat to public safety: Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 2 S.C.R. 625, at para. 61. The appeal court does not make its own judgment on the question of significant threat and use that judgment as the benchmark for assessing the reasonableness of the Board's decision. Nor does the court re-weigh the considerations that were before the Board : Wall (Re) , 2017 ONCA 713, at para. 21. The reasonableness of the Board's decision must be evaluated by considering the reasons it proffers in the context in which the decision is made . At issue is whether the Board reached an acceptable and defensible outcome, keeping in mind the need to protect the liberty of the NCR accused as much as possible, while also protecting society: Wall , at para. 22. [Emphasis added.] [31] However, the standard is not as high as the “unreasonable verdict” in criminal cases. As stated by this court, “the standard of reasonableness enacted by s. 672.78(1)(a) involves respectful attention, though not submission to the Board's reasons”: Mental Health Centre Penetanguishene v. Ontario , 2010 ONCA 197, 260 O.A.C. 125, at para. 65. [32] The standard of review under s. 672.78(1)(b), with respect to errors of law, is one of correctness: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services ), [2006] SCC 7, [2006] 1 S.C.R. 326, at para. 16. An erroneous application of the significant threat test is an error of law: Hammoud (Re), 2018 ONCA 317, at para. 9. (2) The Significant Risk Requirement Under Section 672.54 [33] Review Boards derive their jurisdiction from Part XX.1 of the Criminal Code . Pursuant to s. 672.54, the Board must make a disposition that takes into account the safety of the public, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. That section empowers the Board to order the following dispositions: When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances: (a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely; (b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or (c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate. [34] Accordingly, the role of the Board is first to determine whether an NCR accused represents a significant threat to public safety. If the answer to that question is “no” or uncertain then the NCR accused must be discharged absolutely: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at pp. 659-661, 669. If the NCR accused does present a significant threat, the Board must either conditionally discharge or detain the individual: Winko, pp. 662, 669. [35] It is important to bear in mind that the Board’s responsibility to grant an absolute discharge is non-discretionary in the event that it harbours any doubt about whether the NCR accused represents a significant threat: Carrick (Re), 2018 ONCA 752, at para. 16. As the majority of the Supreme Court emphasized in Winko, at pp. 652-653: “Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.” [36] Individuals with mental disorders are not inherently dangerous: Winko, at p. 653. There is no presumption of dangerousness and no burden on the NCR accused to prove a lack of dangerousness: Winko, at pp. 660-661, 662. Rather, the legal and evidentiary burden of establishing significant threat rests on the Board or the court: Winko, at p. 663. [37] The threshold for significant risk is “onerous”: Carrick (Re) , 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17. A significant threat to the safety of the public means a foreseeable and substantial risk of physical or psychological harm to members of the public: R. v. Ferguson, 2010 ONCA 810, at para. 8. The conduct must be of a serious criminal nature: Ferguson, at para. 8. A very small risk of grave harm will not suffice, nor will a high risk of trivial harm: Ferguson, at para. 8. The threat must be more than speculative in nature; it must be supported by evidence: Winko , at p. 665; Pellett (Re), 2017 ONCA 753, 139 O.R. (3d) 651, at para. 21. (3) The Disposition of the Board – Significant Threat [38] As explained above, the Board’s conclusion on the significant threat issue was devoid of any analysis, a point I will return to below. It rested solely on a flat acceptance of the evidence before the Board. In examining whether the Board erred in finding that the appellant posed a significant threat to the safety of the public, I will assume that the Board based that finding on conclusions found in the Hospital’s report and the evidence of Dr. Choptiany that was before the Board. [39] The evidence pertaining to significant threat, as summarized by the Board’s reasons at paras. 18-19, included the following general conclusions: (1) the appellant has limited insight into the nature of his illness; (2) when he is unwell, he is capable of physical and psychological harm; (3) he would decompensate if he went off his medication; and (4) the risk of decompensation is heightened due to the deterioration of his therapeutic relationship with his clinical team and his history of substance use: Marmolejo (Re), [2019] O.R.B.D. No. 2378, at paras. 18-19. [40] None of these factors, taken alone or together, support the Board’s finding that the appellant presented a significant threat to the safety of the public. More specifically, the general conclusions relied upon by the Board address neither the degree of the risk nor the gravity of the apprehended harm. An appropriate significant threat finding cannot be made without considering these questions. A finding of significant threat based on the aforementioned factors without such evidence would have been an error in law because it would amount to a failure to apply the proper test to the evidence adduced at the hearing: Hammoud, at para. 9. It would also have been an unreasonable disposition. I will examine each of the factors identified in evidence before the Board, in turn. [41] The fact that an accused lacks insight into their condition is but one factor for consideration, and it must be used with care. In Kalra (Re) , 2018 ONCA 833, at para. 52, this court examined the role of insight in relation to significant risk and found that a lack of insight must be evaluated in its proper context: Whether an NCR accused has insight into his or her mental illness, and the extent of that insight, is only part of the analysis in determining if there is a significant threat to the safety of the public. While insight is a treatment goal, it is one some persons living with mental illness may be unable to fully achieve. In some instances, particularly where the contemplated harm falls at the lower end of the spectrum, it may be unreasonable to require, as the Board did here, that an NCR accused's insight into his or her illness be "entrenched on his consciousness" in order to obtain an absolute discharge . [Emphasis added.] [42] This analysis is equally applicable to the circumstances at hand. A lack of insight alone cannot form the basis of a significant threat finding without analysis of how that lack of insight factors into the risk the NCR accused will pose. Due to the brevity of the Board’s reasons, the extent to which this factor contributed to the finding of significant risk is unclear. Yet the appellant’s lack of insight has been a running and dominant theme throughout the appellant’s dispositions over the years. It also figured prominently in the Hospital’s report and Dr. Choptiany’s testimony. Needless to say, the Board must be cautious in inferring that an NCR accused comprises a significant risk without consideration of how that lack of insight poses a risk in the circumstances of the case at hand. [43] Furthermore, the fact that the appellant may be capable of physical and psychological harm when he is unwell is likewise insufficient to ground a finding of significant risk. That is not the threshold. There needs to be a foreseeable and substantial risk of significant physical or psychological harm; that is, the NCR accused must pose a risk of serious criminal conduct. Anything less is an insufficient basis to deny entitlement to an absolute discharge. [44] Additionally, a finding that a person might discontinue their medication must be supported by evidence and be linked in a reasoned way to the finding that the NCR accused poses a significant threat to the public. In Pellett, at para. 32, this court noted that the onerous substantial threat standard was not met by the risk that an NCR accused could cease taking her medication, which would result in a worsening of her condition. This is so even where there is considerable likelihood that the NCR accused would discontinue their medication: Hammoud, at para. 9; Ferguson, at paras. 1-3. As this court noted in Hammoud : There was no doubt that for three decades the appellant has suffered, as she continues to suffer, from a serious mental disorder. Equally, there was no doubt that, presented with the opportunity to do so, the appellant would discontinue her medication. But these are not the risks at which the "significant threat" threshold in s. 672.5401 is directed . In our view, read as a whole, the reasons of the Board reveal legal error — the failure to apply the proper test for "significant threat to the safety of the public" to the evidence adduced at the hearing. [Emphasis added.] [45] In the present case, the appellant has complied with his medication regimen for years and has repeatedly indicated that he would continue taking his medication upon his absolute discharge. Although he stopped taking his medication after he received his 2008 absolute discharge, there is no evidence that this would happen again. His liberty cannot be beholden to a mistake made over a decade ago. [46] Nor can one equate the deterioration in the appellant’s relationship with his psychiatric team with significant threat. The team did not observe any overt psychiatric symptoms. Admittedly, the change in temperament remains unexplained. However, uncertainty does not ground a finding of significant threat, even when considered along with the other conclusions that emerge from the evidence that was before the Board. [47] Finally, it is well recognized that a risk of substance abuse does not justify the denial of an absolute discharge unless that substance abuse would pose a significant threat to the public: Carrick (Re), (2015), at para. 39; Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at paras. 25, 29-30; Sokal , at para. 25. An NCR accused cannot be under the Board’s jurisdiction indefinitely because of substance use. The evidence before the Board failed to offer insight into the degree of the risk that substance abuse posed to the appellant’s behavior and was therefore of marginal utility. [48] In sum, the Board erred in law by not engaging the appropriate legal standards required for a significant risk finding. If the Board’s finding was, in fact, based on the conclusions put before it in evidence, viewing these factors in light of the concerns raised above the finding was also unreasonable. The evidence before the board leads me to a different outcome than the Board: I am satisfied that the totality of this record does not permit a finding that the appellant posed a significant threat to the public. The appellant was entitled to an absolute discharge. (4) The Need for Robust Reasons on the Significant Threat Issue [49] In every case, the Board is required to explain why the disposition is necessary and appropriate in the circumstances: Marchese (Re) , 2018 ONCA 307, 359 C.C.C. (3d) 408, at para. 16. A cursory consideration of the question of significant risk will not suffice where an individual’s liberty is on the line: Carrick (Re), (2018), at para. 20. As noted above, the Board’s disposition must be able to withstand a “somewhat probing examination” in order for the conclusion on significant threat to be upheld as reasonable. As this court observed in Marchese , at para. 8: “To conduct a ‘somewhat probing examination’ this court must have something to probe.” [50] In Marchese , this court contemplated the difficulty posed when the Board fails to provide sufficient reasons. In that case, the Board’s analysis on the key issue of significant threat was confined to one paragraph at the end of five pages of reasons. Brown J.A., writing for the court, commented that: “This brevity led the Board to treat material evidence without the rigour one would expect from a specialized tribunal such as the Board.” [51] Nevertheless , the court ultimately upheld the Board’s disposition. After remarking on the insufficiency of reasons, the court reviewed the record before the Board. It concluded that there was evidence that supported the Board’s finding on the significant threat issue, notwithstanding the clear deficiency in reasons. For example, Ms. Marchese was re-admitted to the hospital for seven months due to a deterioration in her mental status during the period under review: Marchese , at para. 13. While in seclusion at the hospital, she also exhibited “escalated behaviour” that risked harm to herself and others: Marchese , at paras. 13-14. At the hearing, there was also some indication that Ms. Marchese had further contact with the hospital in the interim. Thus, the court declined to interfere with the Board’s finding that Ms. Marchese remained a significant threat. [52] However, in so doing, the court identified a trend besetting Ontario Review Board cases: “Yet, too often this court sees reasons from the Board that go on at considerable length to recite submissions, only to conclude with a cursory analysis of the key issue: is the appellant a significant threat to the safety of the public?” Brown J.A. provided the following helpful commentary for Board going forward: Cursory analysis is difficult to probe. It also risks failing to provide justification, transparency, and intelligibility for the resulting decision. To avoid that risk, in every case the Board's reasons should clearly explain what evidence in the record leads it to conclude that the condition and conduct of the NCRMD accused creates a significant threat to the safety of the public, both in the sense that there exists a real, foreseeable risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must itself be serious: R. v. Ferguson , 2010 ONCA 810, 264 C.C.C. (3d) 451 (Ont. C.A.), at para. 8. The Board's reasons must clearly deal with the likelihood of a risk materializing and the seriousness of the harm that might occur: Carrick (Re) , 2015 ONCA 866, 128 O.R. (3d) 209 (Ont. C.A.), at para. 16. [Emphasis added.] [53] He further noted that the Board’s reasons must identify the material evidence which it relies on and explain how the evidence is linked to the issue of significant threat: Marchese , at para. 11. A conclusion is not an explanation; and whether that conclusion falls within “a range of possible, acceptable outcomes” cannot be assessed in light of the absence of any analysis : Marchese , at para. 17. [54] Another case that grapples with a similar issue is Magee (Re) , 2020 ONCA  418. Although the case is factually distinguishable, the Board’s reasons for dismissing Mr. Magee’s request suffered from the same defects that are present here: namely, an absence of meaningful reasons. On appeal, this court ordered a new hearing on the basis that the Board’s disposition was unreasonable. Harvison Young J.A., writing for the court, held that the reasons failed to reflect an adequate engagement with the requirement that it make the least onerous disposition: Magee , at paras. 24, 30-32; 40-42. She noted that the Board failed to explain its disposition in light of the supporting evidence: Magee , at para. 25. In doing so, she reminds us of the following helpful comment in Vavilov , at para. 127: “T he principles of justification and transparency require that an administrative decision maker's reasons meaningfully account for the central issues and concerns raised by the parties" (emphasis added). [55] More broadly, to succeed on an appeal based on inadequate reasons, an appellant must show that the reasons are so deficient that they foreclose meaningful appellate review, and the deficiency has occasioned prejudice to the exercise of the appellant’s legal right to an appeal: R. v. Dinardo , 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 33, and R. v. Braich , 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 31. (5) The Disposition of the Board – Insufficient Reasons [56] In some ways, the facts of this case align with those in Marchese . The decision of the Board sets out the history of the matter, and quotes at length from the Hospital’s report. The Board discussed that report, and the evidence of Dr. Choptiany, in a cursory manner. The decision of the Board does not clearly set out why the condition and conduct of the appellant creates a significant threat to the public. [57] In fact, the Board does not even mention the appellant’s position when making its determination that the appellant posed a significant risk to the public. There is no analysis at all. There is no indication as to why the appellant might stop taking medication when he states that he would continue to take it, and he had taken in for years. There is no analysis as to why the potential risk posed by the appellant was “serious” as opposed to relatively trivial harm. [58] I am satisfied that the Board’s reasons are so deficient that they foreclose meaningful appellate review. Likewise, the deficiency would have occasioned prejudice to the exercise of the appellant’s legal right to appeal. [59] Notably, this case departs from Marchese in a crucial way: here, the evidence before the Board does not appear to support a finding of significant threat. Accordingly, I do not have the same hesitations about interfering with the Board’s disposition. As explained above, the appellant was entitled to an absolute discharge. F. CONCLUSION AND DISPOSITION [60] Accordingly, the appeal is allowed. As noted above, in light of the Board’s 2020 disposition, there is no need for further relief at this point in time. Released: March 2, 2021 “M.T.” “M. Tulloch J.A.” “I agree. David M. Paciocco J.A.” “I agree. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Marshallzehr Group Inc. v. Ideal (BC) Developments Inc., 2021 ONCA 229 DATE:  20210413 DOCKET: C68419 Rouleau, Brown and Miller JJ.A. BETWEEN Marshallzehr Group Inc. Plaintiff/Defendant by Counterclaim (Respondent) and Ideal (BC) Developments Inc., Ideal (BC2) Developments Inc., 2490568 Ontario Inc., 2490564 Ontario Inc. IDEAL Developments Inc., and Shajiraj Nadarajalingam Defendants/Plaintiffs by Counterclaim (Appellants) Mark A. Russell, for the appellants Stephen Schwartz, for the respondents Heard: March 29, 2021 by video conference On appeal from the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated March 11, 2020, with reasons reported at 2020 ONSC 1547, 100 B.L.R. (5th) 66 . BROWN J.A.: I.        OVERVIEW [1] The appellants, Ideal (BC) Developments Inc., Ideal (BC2) Developments Inc., 2490568 Ontario Inc., 2490564 Ontario Inc., Ideal Developments Inc., and Shajiraj Nadarajalingam (hereafter collectively “Ideal”), appeal the judgment of the motion judge that ordered them to pay the respondent, MarshallZehr Group Inc. (“MZ”), the sum of $508,071.09 and dismissed Ideal’s counterclaim against MZ. [2] By Commitment Letter dated October 31, 2018 (the “CL”), and executed by Ideal on November 8, 2018, MZ was prepared to provide Ideal with financing for a residential real estate project. Two of the appellants, Ideal Developments Inc. and Shajiraj Nadarajalingam, were to act as guarantors of the indebtedness. [3] According to the CL: (i) MZ intended to syndicate the loan and lend Ideal $15.2 million (the “Loan”); (ii) the Loan was to act as a first mortgage land loan for Ideal’s development of the project; (iii) the CL stipulated that the funds for the project were to consist of the Loan plus $5.9 million in equity; (iv) the loan would be for a term of 13 months; (v) the Loan would consist of three facilities, with the facilities bearing interest rates ranging from Prime + 5.3% per annum (floor rate of 9.25%) on the largest facility to Prime + 10.05% (floor rate 14.0%) on the smallest;  (vi) subordinate financing was subject to MZ’s consent; (vii) the closing date for the Loan was scheduled for December 5, 2018; and (viii) MZ was not required “to advance any funds prior to the Borrower having fulfilled to the Lender’s satisfaction” the Initial Funding Conditions specified in s. 2.1 of the CL. [4] By December 17, 2018 MZ had given Ideal notice that the syndicated lenders had started to advance funds. MZ informed Ideal on December 21, 2018 that interest was beginning to accrue on the Loan. Thereafter, in accordance with the terms of the CL, MZ advanced the syndicated funds to its counsel, to be held in trust pending Ideal’s satisfaction of the Initial Funding Conditions. [5] In the result, the Loan never closed, and no funds were ever advanced to Ideal. By letter dated January 23, 2019, MZ notified Ideal that it was ending the CL, stating, in part: Please accept this letter as notice that the Lender is hereby terminating the Commitment Letter effective immediately in accordance with the terms thereof. Notwithstanding the Lender’s unilateral right to cancel the Commitment Letter at any time and as it may determine, in its sole and unfettered discretion, we have been advised by our client that the Obligors have not met the Initial Funding Conditions set out in Part II, Section 2.1 therein. [6] MZ sought payment from Ideal of $553,899.48 for various fees and expenses in connection with the CL. [7] By letter dated February 28, 2019, Ideal took the position that MZ did not have the right to terminate the CL without providing notice and giving Ideal an opportunity to cure any default. [8] MZ brought this action seeking payment of various fees and expenses described in the CL. Ideal defended and, as well, counter-claimed for damages caused by MZ’s wrongful termination of the CL. MZ then moved for summary judgment, which the motion judge granted. [9] Ideal raises two main grounds of appeal. First, it submits that the motion judge erred in determining that MZ was entitled to end the loan facility under the CL’s Cancellation provision and dismissing Ideal’s counterclaim. Second, Ideal argues that the motion judge erred in calculating the fees and expenses to which MZ was entitled upon cancellation of the CL. II.       FIRST GROUND OF APPEAL: MZ’S RIGHT TO END THECOMMITMENT LETTER A.      The issue stated [10] Ideal’s first ground of appeal concerns the motion judge’s interpretation of the CL, specifically the contractual basis of MZ’s right to end the CL in the circumstances, as well as the application of that interpretation to the facts of the case. The applicable standard of review is that articulated in Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, and its progeny. [11] Ideal submits that when interpreting the CL the motion judge committed an error on an extricable question of law. It argues the motion judge failed to interpret the provisions of the contract as a whole, with the result that he failed to assign meaning to all the contested terms of the CL: Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust (2007), 85 O.R. (3d) 254 (C.A.), at para. 24; Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc. , 2017 ONCA 293, 135 O.R. (3d), at para. 58, leave to appeal refused, [2016] S.C.C.A. No. 249. [12] The contested terms of the CL are those that entitle MZ to bring its relationship with Ideal to an end. The first is found in Part I of the CL. Headed “Cancellation”, the provision states: The Lender may on demand require immediate payment of all amounts outstanding or accrued in connection with this Commitment. The Lender may at any time, for any reason and without notice, cancel the undrawn portion of the Loan . [Emphasis added.] (Hereafter the “Cancellation Provision”.) [13] The other is contained in Part V of the CL, “Default Provisions”. Section 5.1 identifies events of default, which include the neglect by any Obligor (the named borrowers and guarantors) “to observe or perform any covenant or obligation contained in any Document on its part to be observed or performed … and, such Obligor shall fail (in the case of those defaults which can be rectified by such Obligor) to remedy such default within a period of thirty (30) days after the giving of notice …” [14] Section 5.2 provides that “[u]pon the occurrence of any Event of Default that has not been cured within the timelines set out herein, the Lender by written notice to the Borrower (an “Acceleration Notice”) shall be entitled to: a) declare the Loan and the right of the Borrower to apply for further Advances to be terminated; and b) declare all Obligations … of the Borrower to the Lender (including, without limitation, the all unpaid fees whether or not deemed earned) to be immediately due and payable … without further demand…” [15] I will refer to ss. 5.1 and 5.2 collectively as the “Default and Demand Provisions”. [16] Before the motion judge, Ideal argued that the Default and Demand Provisions governed MZ’s ability to terminate the CL prior to the closing of the loan transaction. It contended that MZ had wrongfully terminated the CL because it had failed to give Ideal notice that it had committed an event of default and afford Ideal an opportunity to cure the default. [17] The motion judge did not accept that submission. He held that MZ’s January 23, 2019 letter constituted the exercise by MZ of its right to end the relationship with Ideal under the Cancellation Provision. He stated: Read literally, the Cancellation Provision required MZ to have a reason for the cancellation and its expressed reason was that Ideal had not satisfied the Initial Funding Conditions. Section 2.1 of the Commitment Letter provided that MZ shall not be required to advance any funds prior to Ideal having fulfilled to the Lender's satisfaction the funding preconditions. Although MZ speaks of Ideal defaulting with respect to the Initial Funding Conditions, more felicitous and legally accurate language is that Ideal had not satisfied the pre-conditions for the loan. More importantly, by January 22, 2010 [ sic ] it was apparent that Ideal would not or could not satisfy the pre-conditions. [18] Ideal advances two arguments in support of its position that the motion judge erred in holding that MZ was entitled, in the circumstances, to utilize the Cancellation Provision. First, a proper interpretation of the CL as a whole requires giving meaning and priority to the Default and Demand Provisions. Second, MZ did not have a legitimate reason to terminate the CL and, as a result, MZ failed to exercise its discretionary powers under the CL in good faith. B.      Analysis The interpretation of the CL [19] I am not persuaded that the motion judge erred on an extricable question of law. In my view, his interpretation gave effect to all the CL’s terms. [20] The terms of the CL cover two periods of time in the relationship between MZ and Ideal: (i) the period from the date of execution of the CL to the closing of the transaction by the Initial Advance of funds to Ideal; and (ii) the period following the Initial Advance of funds through to the end of the 13-month term of the Loan. When the CL is examined in its entirety, the provisions relating to the pre-closing period are, roughly speaking, found in the following portions of the CL: (a) s. 2.1, which specifies the Initial Funding Conditions; and (b) Part III, which describes the security and documentation to be delivered by Ideal.  Those that concern the post-closing/post-Initial Advance period are: (c) s. 2.2, dealing with Funding Conditions for Borrower Draws (although the CL contemplated a single, Initial Advance); (d) Part IV, dealing with Borrower’s Covenants; and (e) Part V, the Default Provisions. Parts I and VI, the General Provisions, contain terms that concern both periods of time. [21] Provisions of the CL clearly stated that MZ, as lender, was not required to advance any funds prior to Ideal, as borrower, fulfilling stipulated pre-conditions to MZ’s satisfaction. For example, Part VI states, in part: “The execution of this letter does not obligate the Lender to advance any of the agreed funds unless all of the conditions to such advances have been satisfied to the satisfaction of the Lender and its solicitors.” [22] When the motion judge’s reasons are read against that background, I am satisfied that his interpretation gave effect to the basic bargain agreed to by the parties and gave meaning to all the CL’s terms. [23] Ideal contends that MZ could not use the Cancellation Provision because it merely permitted the Lender to “cancel the undrawn portion of the Loan”. Ideal points to the definition of “Loan” in the opening paragraph of the CL, which states: This commitment letter confirms that MarshallZehr Group Inc. (the “Lender”) is prepared to provide financing (the “Loan”) for the Project conditional on the terms and conditions contained in this letter agreement (the “Commitment”). [24] In Ideal’s submission, the cancellation of the undrawn portion of the Loan would not amount to a termination of the CL or the Loan, which is what MZ purported to do in its January 23, 2019 letter. Instead, according to Ideal, any “termination” of the Loan required MZ to resort to the Default and Demand Provisions. Only if MZ gave notice of a default and an opportunity for Ideal to cure the default could it then proceed, under s. 5.2, to issue to Ideal an acceleration notice that would “declare the Loan and the right of the Borrower to apply for further Advances to be terminated.” [25] I do not regard the interpretation advanced by Ideal as a commercially reasonable one.  While I agree with the motion judge’s observation, at para. 45, that “the Commitment Letter is far from plainly written,” in my view his interpretation gave practical meaning to all the CL’s terms and was commercially reasonable. [26] When MZ sent its January 23, 2019 letter, the parties had not closed the financing of the Loan. As a result, MZ had not advanced any funds to Ideal. The CL contemplated one advance of funds, the Initial Advance, which would comprise the entirety of the Loan. Accordingly, at the time of the January 23, 2019 letter the entirety of Loan remained undrawn because the loan transaction had not yet closed and no funds had been advanced. In those circumstances, the Cancellation Provision would be available to “cancel the undrawn portion of the Loan.” The effect of the cancellation would be to put an end to, or terminate, the CL. [27] By contrast, the following language of s. 5.2 envisages a situation where the loan transaction has closed and some advance of funds has occurred: “declare the Loan and the right of the Borrower to apply for further Advances to be terminated.” [Emphasis added.] Section 5.2 of the CL contemplates circumstances where some portion of the Loan has been advanced, an uncured event of default has occurred, as a result of which the Lender can declare the Loan to be terminated and accelerate all obligations, with the Loan becoming immediately due and payable. [28] Is the language of the Cancellation Provision a “perfect fit” with only pre-closing circumstances? No. One could argue that its reference to the “undrawn portion of the Loan” covers a situation where the borrower already had made a draw and, therefore, the transaction had closed. But, in my view the motion judge’s interpretation was a more commercially reasonable one in the actual circumstances of this case: the Loan transaction had not closed; no advance had been made to Ideal; the CL contemplated a single, “Initial Advance”, not multiple draws; and MZ was under no obligation to advance funds before Ideal fulfilled the stipulated pre-closing conditions to MZ’s satisfaction. [29] I therefore conclude that the motion judge did not commit an error on an extricable question of law. His interpretation of the CL was a reasonable one, which gave practical recognition to the structure of the CL and meaning to all its terms. Accordingly, I see no reversible error in his interpretation of the Cancellation Provision and his conclusion that MZ could use the provision in the circumstances. Nor do I see any palpable and overriding error in his finding that by sending its January 23, 2019 letter MZ was purporting to exercise its right under the Cancellation Provision. That finding was available to the motion judge on the record. The availability of the Cancellation Provision in the circumstances [30] Ideal also submits that its dispute with MZ about the terms of subordinate financing did not entitle MZ to exercise its rights under the Cancellation Provision. [31] Feature Corp. held an existing third mortgage on the project properties. Since the “Subordinate Financing” clause in Part I of the CL required MZ’s prior written consent to any junior mortgage, Ideal discussed with MZ terms for subordinating and postponing the third mortgage. The parties could not agree on the length of a standstill period during which the third mortgagee could not enforce its rights in the event of a default by Ideal: MZ wanted a standstill period for the entire term of its Loan; Ideal wanted only a 90-day standstill period. [32] By email dated January 14, 2019, MZ repeated that it required a full standstill, observed that the issue had been addressed multiple times, and advised that the parties “should move on from it.” By further email dated January 16, 2019, MZ advised Ideal that “[w]e will not limit the timeframe around our standstill clause.”  On January 18, 2019, Ideal’s counsel formally wrote to MZ that its insistence on an “indefinite standstill period” was unreasonable as such a provision was not expressly required by the CL. Counsel advised that unless MZ altered its position and, as well, agreed to a $2 million increase in the third mortgage, “we will seek our client’s instructions regarding termination of the Commitment Letter, without prejudice to their rights and remedies in law and equity.” MZ remained firm in its position. [33] Ideal submits, in effect, that the language of the Subordinate Financing clause treats the parties’ inability to resolve the dispute over the standstill agreement as a “default” which, in turn, required MZ to resort to the Default and Demand Provisions, not the Cancellation Provision, to end the relationship. [34] I am not persuaded by that submission. [35] The Subordinate Financing clause uses the word “default” in two places, each involving a different circumstance. The first refers to a situation where Ideal obtains additional financing without MZ’s consent; the second is where an approved secondary lender issues a discharge certificate greater than zero without MZ’s consent. [36] Neither circumstance applied to the dispute between MZ and Ideal, which involved Ideal’s obligation to satisfy the Initial Funding Conditions for the Loan. Section 2.1(a) of the Initial Funding Conditions required the execution of all the security and “ancillary loan agreements and documents” before MZ was obligated to advance any funds. Ideal’s obligation under Part III of the CL required Ideal to deliver security “in the form and on the terms acceptable to the Lender’s solicitors”, including (a) in s. III.j, postponements from “such other creditors as the Lender may require upon completion of its due diligence” and (b) in s. III.o, “[s]uch further security … and ancillary documents and agreements as the Lender or its solicitors may, acting reasonably, deem necessary to adequately secure the Loan obligations and complete and perfect the Security.” [37] The record discloses that Ideal was not prepared to agree to the form of subordination agreement acceptable to MZ. At para. 54 of his reasons, the motion judge found that “the negotiations over whether MZ would consent to the additional financing and about what would be the terms of the postponement, subordination and standstill agreement had reached a dead-end, which was a very serious impediment to going forward with the loan for both parties.” I see no palpable and overriding error in that finding; ample evidence supported it. [38] The motion judge stated, at para. 52, that “the Cancellation Provision required MZ to have a reason for the cancellation and its expressed reason was that Ideal had not satisfied the Initial Funding Conditions.” Given the requirements of s. 2.1 regarding the Initial Funding Conditions and Part III regarding Security, I see no palpable and overriding error in the motion judge’s conclusion that the parties’ impasse over the terms of the Feature Corp. subordinate financing provided MZ with a legitimate “reason” to exercise its rights under the Cancellation Provision. [39] Ideal makes one further argument. In its statement of defence and counterclaim, Ideal pleaded that MZ breached its duty of good faith “by unreasonably demanding a permanent standstill agreement from subordinate financiers in excess of its rights under the [CL] and by terminating the [CL] without proper notice of alleged default or providing a required cure period to remedy the same.” Ideal did not advance that argument before the motion judge. However, during oral submissions on appeal, Ideal, relying on the recent decision of the Supreme Court of Canada in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District , 2021 SCC 7, 454 D.L.R. (4th) 1, argued that MZ did not exercise its rights under the Cancellation Provision in a good faith manner. [40] I am not prepared to give effect to this submission. I put to one side the issue of whether it is open to Ideal to argue on appeal a pleaded defence that it elected not to pursue below in response to MZ’s motion for summary judgment. As well, the lateness of the hour at which Ideal has raised this issue has deprived the panel of the benefit of the parties’ considered submissions on how the principles articulated in Wastech would apply to a party’s conduct in the pre-closing phase of a contractual relationship, such as in the present case. Nevertheless, I would observe that while Wastech states that contractual discretion must be exercised reasonably, in light of the purpose for which it was conferred, the decision notes that such a duty of good faith “does not displace the detailed, negotiated bargain as the primary source of justice between the parties”: at paras. 4 and 5. [41] In the present case, MZ was faced with a situation where: (a) Ideal had been unable to renew its existing first mortgage; (b) Ideal had agreed, in the CL, to use equity to source the balance of funds for the project but ultimately wanted to maintain and increase the amount of its third mortgage; (c) Ideal had agreed, in the CL, that MZ’s consent was required for any subordinate financing and relevant security  and ancillary documentation had to be satisfactory to MZ and its solicitors; and (d) Ideal’s counsel had put MZ on formal notice that its insistence on a total standstill was unreasonable and might lead Ideal to terminate the CL. Ideal’s position that its subordinate lender need only agree to a 90-day standstill on its enforcement rights understandably would cause MZ concern about the degree of additional risk it would be assuming if it were to advance funds to Ideal on that basis. [42] The agreed Initial Funding Conditions reflected many of the limits to the risk that MZ was prepared to assume in lending to Ideal. When viewed in the context of the entire agreement, the Cancellation Provision appeared to be designed, in part, to bring the relationship to an end if the borrower was unable or unwilling to satisfy the pre-conditions to lending. Faced with a potential borrower who was not prepared to conclude an agreement within the CL’s agreed-upon risk limits, the Cancellation Provision was available for MZ to use to avoid such unbargained for risk. Again, recall that s. 2.1 of the CL provided that MZ was not required to advance any funds until Ideal fulfilled the Initial Funding Conditions to MZ’s satisfaction. In those circumstances, I see nothing unreasonable about its use of the Cancellation Provision. Conclusion [43] For those reasons, I am not persuaded by Ideal’s first ground of appeal. I see no basis to interfere with the motion judge’s conclusion that MZ was entitled to exercise the Cancellation Provision in the circumstances. III.      SECOND GROUND OF APPEAL: THE RECOVERABLE FEES AND EXPENSES [44] The $508,071.09 judgment in MZ’s favour consists of awards for: (i) Standby Interest: $101,958.82; (ii) expenses consisting of payments by MZ for legal fees, document review, and planning advice: $60,112.27; and (iii) a Lender Fee of $396,000, less the $50,000 Good Faith Deposit (net $346,000). [45] Ideal submits that the motion judge erred in granting judgment for those amounts because none were recoverable under the terms of the CL in the event MZ exercised the Cancellation Provision. MZ submits the motion judge made no error. I will consider each item in turn. Standby Interest [46] The CL stated that MZ intended to syndicate the Loan, which it did. Part I of the CL stipulated that if the Loan was not fully advanced by December 5, 2018, “interest will commence on the advance date established herein for such advance, in the form of standby interest (“Standby Interest”) on any unadvanced portion of the Loan and will become due and payable on the date the Loan is advanced or upon the termination of this Commitment Letter without any advances having been made .” [Emphasis added.] [47] By December 17, 2018 MZ had advised Ideal that it had syndicated the Loan. Over the next few weeks MZ transferred the syndicated funds to its counsel to be held in trust, pending closing of the loan transaction. [48] Ideal submits that the motion judge erred in finding that MZ was entitled to Standby Interest pursuant to the Cancellation Provision. Since such interest was payable only “upon the termination of this Commitment Letter without any advances having been made,” according to Ideal MZ was only entitled to Standby Interest if it had proceeded under the Default and Demand Provision’s termination language. [49] I am not persuaded by Ideal’s submission. The practical effect of MZ proceeding under the Cancellation Provision was to terminate the CL “without any advances having been made”, the very circumstance contemplated by the CL’s Standby Interest provision. Pursuant to that provision, MZ was entitled to recover from Ideal interest on the syndicated funds that had been put in place pending closing of the Loan. I see no error in the motion judge granting judgment for that amount. Expenses and Good Faith deposit [50] The Expenses section in Part I of the CL stated that: “All reasonable expenses of the Lender and the Borrower shall be paid by the Borrower including (but not limited to), the cost of any third-party reports and all legal costs regardless of whether the Borrower proceeds with the transaction ” [Emphasis added.] The “Good Faith Deposit” section stated: $50,000 non-refundable if Borrower fails to proceed based on the terms of this Commitment Letter and is full compensation to the Lender for its work and efforts in preparation of this Commitment Letter. The Borrower shall also be responsible for the Lender’s legal and other, professional fees and out of pocket expenses if the Borrower fails to proceed with the Loan . [Emphasis added.] [51] The motion judge held that MZ was entitled to recover its legal fees, consultants’ expenses, and the Good Faith Deposit pursuant to the Cancellation Provision. Ideal submits that the motion judge erred in so holding because MZ’s exercise of the Cancellation Provision did not amount to Ideal, as borrower, failing to proceed with the transaction or Loan. [52] The motion judge found, at para. 53, that by January 22, 2019 “it was apparent that Ideal would not or could not satisfy the pre-conditions.” Ample evidence supported that finding, at least in respect of certain informational requirements and the terms of the subordinated financing. Given that conduct by Ideal, I see no error in the motion judge’s implicit conclusion that Ideal did not proceed with, or failed to proceed with, the transaction. Lender’s Fee [53] The “Fees” section of Part I of the CL provides that: “$396,000, the Lender Fee, less the Good Faith Deposit shall be deducted from the Initial Advance .” [Emphasis added.] Part I defines the “Initial Advance”, in part, as follows: The Loan shall be advanced in one draw: The first draw (“Draw 1” or the “Initial Advance”) is anticipated to be in the principal amount of $15,200,000 and advanced upon satisfaction of the conditions contained herein and by the applicable Notices (see Appendix A, B, C and D). The Initial Advance is expected to be as follows: Land Debt Refinancing                                $13,000,000 Lender Fee                                                  $  396,000 [54] The motion judge held that the claim for the Lender Fee was recoverable pursuant to the Cancellation Provision. In reaching that conclusion, he did not address Ideal’s submission that the Lender Fee was not payable without an advance of the Loan. On its part, MZ argues that the Lender Fee was earned upon its completion of due diligence and “advance of the Loan to the Trust Account”. [55] I am persuaded by Ideal’s submission. The language of the CL specifies that the Lender Fee “shall be deducted from the Initial Advance” and MZ did not make an Initial Advance to Ideal. The CL does not contain any other language of entitlement to the Lender Fee. [56] I do not accept MZ’s argument that the fee was earned upon the advance of the Loan to the Trust Account; the CL clearly distinguishes between the Lender Advance – the transfer of the syndicated funds to MZ’s trust account – and the Initial Advance, which is an advance to the Borrower. [57] Nor do I accept MZ’s submission that the decision in Chijindu v. Prudential Property Management , 2014 ONSC 4759, applies to the facts of the present case. That case is distinguishable in two respects. First, the mortgage commitment letter did not contain the language found in the CL that the fee was to be deducted from an advance. Second, in Chijindu the mortgagee in fact had advanced the first draw under the mortgage commitment letter, and the issue was whether the mortgagee was entitled to the entire lender’s administrative fee or only an amount pro rated to the amount of the actual advance. The application judge held that the language of the mortgage commitment letter entitled the mortgagee to the entire amount: at paras. 10 and 13. [58] Consequently, I conclude that the motion judge erred in granting judgment for the Lender Fee. Conclusion [59] By way of summary, the fees and expenses to which MZ is entitled under the CL total $212,071.09 ($101,958.82 Standby Interest + $60,112.27 expenses + $50,000 Good Faith Deposit). MZ has already received the Good Faith Deposit. Therefore, the amount remaining payable by Ideal is $162,071.09. IV.     DISPOSITION [60] For the reasons set out above, I would allow the appeal in part and vary para. 1 of the Judgment from $508,071.09 to $162,071.09. [61] If the parties are unable to agree upon the costs of this appeal, they may file brief (no more than 5 pages) cost submissions within 10 days of the release of these reasons. Released: April 13, 2021 “P.R.” “David Brown J.A.” “I agree. Paul Rouleau J.A.” “I agree. B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Marshallzehr Group Inc. v. Ideal (BC) Developments Inc., 2021 ONCA 299 DATE: 20210505 DOCKET: C68419 Rouleau, Brown and Miller JJ.A. BETWEEN Marshallzehr Group Inc. Plaintiff/Defendant by Counterclaim (Respondent) and Ideal (BC) Developments Inc., Ideal (BC2) Developments Inc., 2490568 Ontario Inc., 2490564 Ontario Inc. IDEAL Developments Inc., and Shajiraj Nadarajalingam Defendants/Plaintiffs by Counterclaim (Appellants) Mark A. Russell, for the appellants Stephen Schwartz, for the respondents Heard: March 29, 2021 by video conference On appeal from the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated March 11, 2020, with reasons reported at 2020 ONSC 1547, 100 B.L.R. (5th) 66. COSTS ENDORSEMENT [1] The appellants, Ideal (BC) Developments Inc., Ideal (BC2) Developments Inc., 2490568 Ontario Inc., 2490564 Ontario Inc., Ideal Developments Inc., and Shajiraj Nadarajalingam (hereafter collectively “Ideal”), seek partial indemnity costs of their appeal in the amount of $12,072.87. On its part, the respondent, MarshallZehr Group Inc., seeks partial indemnity costs of the appeal of $7,735.98. [2] Although Ideal was not fully successful on its appeal, it did succeed in significantly reducing the amount of the judgment against it. In those circumstances, Ideal is entitled to costs of the appeal fixed in the amount of $10,000, inclusive of disbursements and applicable taxes. We do not interfere with the cost award made by the motion judge. “Paul Rouleau J.A.” “David Brown J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Martin v. 11037315 Canada Inc., 2021 ONCA 246 DATE: 20210416 DOCKET: M52365 (C69053) Pepall J.A. (Motion Judge) BETWEEN Kelly Martin Applicant (Respondent/Responding Party) and 11037315 Canada Inc. , 2670082 Ontario Corp. , and Autodome Ltd. Respondents (Appellants/ Moving Parties ) Samir S. Chhina, for the moving parties Dennis Van Sickle, for the responding party Heard: April 13, 2021 by video conference ENDORSEMENT [1] The moving parties, 11037315 Canada Inc. (“110”) and 2670082 Ontario Corp. (“267”), seek an order setting aside the Registrar’s March 29, 2021 order dismissing their appeal and an order extending the time to perfect the appeal. [2] The responding party, Ms. Martin, was served last Wednesday evening. Ms. Martin’s counsel seeks an adjournment to file materials in response. Initially, counsel advised that his client also wanted to bring a cross-motion for security for costs but ultimately indicated that he does not intend to proceed with such a motion at this time. Such a motion would be moot if he is successful in resisting the moving parties’ motion. Accordingly, he will limit his position to responding to the motion. He submits that egregious facts are missing from the materials before the court and the merits and overall justice of the case favour a dismissal of this motion. [3] I raised with counsel the issue of the jurisdiction of this court over the appeal. The parties seemed content to proceed in this court, but jurisdiction cannot be conferred by consent or on the basis of being unopposed. That said, I am satisfied that there is an arguable case to be made that this court has jurisdiction. [4] I will briefly outline the background facts related to the question of whether this court has jurisdiction over the proposed appeal. [5] The application judge’s endorsement dated December 23, 2020 discloses that Ms. Martin bought her house in 2010 for $289,000 with mortgage financing from TD Bank. By 2019, the property was worth $575,000 and the mortgage had been reduced to $160,000. She then obtained a second mortgage for $65,000 from 2148468 Ontario Ltd. (“214”). 214 assigned the mortgage to 110 but Ms. Martin was unaware of this. 110 served her with a claim for foreclosure. She thought the claim was from 214 and confused the meaning of foreclosure with power of sale, thinking she would ultimately receive the net proceeds following the sale. The application judge estimated these to amount to about $350,000. Unbeknownst to her, 110 obtained default judgment against her and then sold the property to 267 for $425,000 when it was worth $575,000. 267 obtained a mortgage of $465,000 on the property. [6] Ms. Martin brought an application to set aside the default judgment obtained in the foreclosure action and also sought other monetary relief. The application judge granted Ms. Martin’s application. On December 23, 2020, he ordered that: the default judgment be set aside, the property forthwith be listed for sale, net proceeds over $425,000 be paid to Ms. Martin, and 110 pay her the proceeds it received from the sale that were in excess of the amount set forth in its statement of claim. He also dispensed with a formal typed order, saying that his endorsement was deemed to be an order in the circumstances of COVID-19. [7] In essence, the effect of the application judge’s order is that Ms. Martin recovers her equity in the property net of the mortgage and other obligations. In exercising his discretion, he relied on equity, absence of prejudice to 267, whom he found was not a bona fide purchaser for value without notice, and the absence of notice of assignment, which meant that the default judgment was irregularly obtained. [8] 267 then moved under r. 59.06(2) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, arguing that a new fact had been discovered: 110 had sent Ms. Martin notice of the assignment by registered mail. On January 29, 2021, the motion judge dismissed the motion on the basis of lack of due diligence and in any event, his earlier decision was based primarily on equity and not on the absence of any notice of assignment. He again determined that given the pandemic, his endorsement was deemed to be the order without any need to obtain a formal, typed order. [9] 267 is now appealing from these two orders and a costs endorsement dated February 23, 2012. [10] The Court of Appeal’s website states that: An issued and entered order is required for the purpose of an appeal to the Court of Appeal for Ontario in civil proceedings. For information on obtaining an order from the Ontario Superior Court of Justice during the COVID-19 pandemic, please see section D.5 of the Superior Court's Consolidated Notice to the Profession, Litigants, Accused Person, Public and the Media. Thus, an issued and entered order is required for the purpose of an appeal to the Court of Appeal for Ontario in civil proceedings. I would recommend that our Registry Office staff advise the moving parties that they should obtain and file an issued and entered order prior to the hearing of this motion. [11] The December 23, 2020 order has both interlocutory and final elements. An order setting aside a default judgment is an interlocutory order: Laurentian Plaza Corp. v. Martin (1992), 89 D.L.R. (4th) 50 (Ont. C.A.) at p. 53. As such, leave to appeal to the Divisional Court pursuant to s. 19(1)(b) of the Courts of Justice Act , R.S.O. 1990, c. C.43 and r. 62.02(1) of the Rules of Civil Procedure would be required, leave that may not be granted by this court. [12] However, the remaining portions of the December 23, 2020 order are final in nature and the order finally disposed of the application. [13] In Lax v. Lax (2004), 239 D.L.R. (4th) 683 (Ont. C.A.), at para. 9, this court held that leave to appeal from an order of a judge of the Superior Court is not required where the issues in an appeal from an order having final and interlocutory aspects are so interrelated that leave would inevitably have been granted. In that case, the defendants moved for summary judgment seeking to dismiss the plaintiff’s action as being statute-barred by the applicable limitation period. The motion judge determined that the action was not statute-barred. This determination gave rise to a final order on the authority of Abbott v. Collins , (2002), 62 O.R. (3d) 99 (C.A.). The motion judge went on to hold that even if the limitation period applied, there was a discoverability issue that required a trial. As Feldman J.A. noted on behalf of the court, the second determination was interlocutory: Although the second issue would, if brought as a stand-alone appeal to the Divisional Court, require leave of that court, because the two issues are so interrelated, we were able to proceed to hear the two appeals together in accordance with s. 6(2) of the [ CJA ], on the basis that once the first issue was before this court, leave would inevitably have been granted on the second. [14] This court proceeded to hear and determine both issues. [15] Lax has since been followed in Azzeh v. Legendre , 2017 ONCA 385, 135 O.R. (3d) 721, leave to appeal refused, [2017] S.C.C.A. No. 289. This court acknowledged that para. 1 of the formal order, which granted leave to add the City of Sudbury and others as defendants, was interlocutory. Paragraph 2, which made other amendments consistent with the addition of the defendants, was also interlocutory. However, para. 3, which granted a declaration that the action was not statute-barred, was final. While normally leave must be obtained from the Divisional Court before an appeal from an interlocutory order can be combined with an appeal from a final order, leave was not required as this case was similar to Lax . The court explained: “[w]hether the City was properly added as a defendant depends on whether the action against it is statute-barred. Therefore, both aspects of the appeal were heard by this court”: at para. 26. See also Abbasbayli v. Fiera Foods Company , 2021 ONCA 95, at para. 17; 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. [16] As for the January 29, 2021 order, an order dismissing a motion under r. 59 to set aside or vary an order is interlocutory: Antique Treasures of the World Inc. v. Bauer , 2003 CanLII 35349 (Ont. C.A.). However, again, the issues raised by that order are closely related to those in the December 23, 2020 order. [17] In the circumstances, given the interrelationship of the issues engaged by the two orders the moving parties seek to appeal, and based on the aforementioned authorities, I conclude that it is at the very least arguable that this court has jurisdiction over the appeal. [18] As such, it is appropriate for me to adjourn the motion to a new date as requested by the responding party. I am adjourning the motion to April 28, 2021, a date agreed upon by the parties, to permit the responding party to respond to the motion. I am satisfied that the request is legitimate given the abbreviated service and the absence of any materials from the responding party. The costs of today are reserved to the judge hearing the motion. “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. Tootiak, 2021 ONCA 356 DATE: 20210527 DOCKET: C65194 Watt, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Jayson Tootiak Appellant Ian B. Kasper, for the appellant Alexander Hrybinsky, for the respondent Heard: May 19, 2021 by video conference On appeal from the from the conviction entered on February 26, 2013 and the sentence imposed on December 1, 2015 by Justice Jack Nadelle of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of a sexual assault and assault causing bodily harm. He was sentenced to 13 years less two years pre-sentence custody on the sexual assault and 10 years concurrent on the assault causing bodily harm. He appeals his conviction and sentence. [2] The appellant formally agreed at trial that the sex act with the complainant took place. He did not testify. [3] He appeals the trial judge’s finding on credibility of the complainant. He submits that the judge erred by: (i) bolstering her credibility because she acknowledged her criminal record; (ii) relying on evidence to support her credibility that was neither independent nor material; and (iii) finding that she had an excellent recollection of events. [4] We accept none of these grounds. [5] A trial judge ’s finding of credibility is owed a high degree of deference on appeal. Read as a whole, the trial judge’s reasons show he found the complainant to be credible and reliable. He made none of the three errors alleged. In particular: 1. The trial judge cautioned himself on the complainant’s criminal record. In this context he commented that she readily admitted it. His comment was responsive to the defence focus on her record during cross-examination. It did not amount to impermissible bolstering. 2. There was independent evidence confirming the complainant’s evidence: the bus driver and the police officer testified about injuries to her face and head. The nurse testified about injuries to her buttocks. This evidence was independent and material. 3. The trial judge was not required to address every inconsistency in the complainant’s evidence. He found her recollection of “events” to be excellent. Clearly, he was not referring to individual details such as how many drinks she had consumed or how certain abrasions happened but rather her recollection of being violently assaulted and raped. [6] We see no error in the trial judge’s conclusions. [7] The appellant was sentenced to 13 years less two years for pre-sentence custody for the sexual assault. It is acknowledged by the Crown that this exceeds the maximum sentence of 10 years and is thus an error. [8] The conviction appeal is dismissed. The sentence appeal is allowed. The net sentence is therefore varied to six years, 10 months and two days. “David Watt J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: McMurter v. McMurter, 2021 ONCA 5 DATE: 20210105 DOCKET: C66465 Feldman, Simmons and Harvison Young JJ.A. BETWEEN Kelly Ann McMurter Applicant (Respondent) and James Robert Gordon McMurter Respondent (Appellant) Kelly Ann McMurter, acting in person Andrew Rogerson, for the appellant Heard: in writing On appeal from the order of Justice Helen MacLeod-Beliveau of the Superior Court of Justice, dated December 28, 2018, with reasons reported at 2018 ONSC 7604. COSTS ENDORSEMENT [1] Costs of the appeal are to the respondent on a partial indemnity scale in the amount of $2,500, inclusive of disbursements and HST. “K. Feldman J.A.” “Janet Simmons J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Medcof (Re), 2021 ONCA 168 DATE: 20210319 DOCKET: C68714 Watt, Benotto and Jamal JJ.A. IN THE MATTER OF:  William Medcof AN APPEAL UNDER PART XX.1 OF THE CODE Ken J. Berger , for the appellant Erica Whitford , for the respondent, Attorney General of Ontario Leisha Senko, for the respondent, Person in Charge of the Centre for Addiction and Mental Health Heard: March 4, 2021 by video conference On appeal from the disposition of the Ontario Review Board dated, July 8, 2020, with reasons dated September 16, 2020. REASONS FOR DECISION Background [1] The appellant has been under the jurisdiction of the ORB since 2002. In 2001, he attacked his roommate, kidnapped his mother, and threatened and assaulted his father. On November 29, 2002 he was found not criminally responsible on account of mental disorder. Thereafter, the appellant generally resided in minimum and medium secure units of mental health facilities. [2] The appellant has been diagnosed with schizophrenia, substance use disorder, personality disorder, and exhibitionistic paraphilic disorder. He was found treatment incapable in 2006 and the Public Guardian and Trustee is his substitute decision-maker. In 2012 he was discharged to reside in the community in supportive housing. Since that time, he has been living in housing run by Ecuhome. He has his own room and shares a kitchen, bathroom and common areas. He has not been involved in violent or criminal behaviour. He was granted a conditional discharge in 2017, which was continued in 2018 and 2019. The Current Disposition [3] The appellant had a positive year following the 2019 disposition. However, he also began testing positive for cocaine in 2019. This, together with his regular use of marijuana, became a concern of his treatment team headed by Dr. Pearce. While there were no incidents of violence, on March 4, 2020 he threatened Dr. Pearce and his staff. His family expressed concern with respect to potential violence. [4] The appellant contends that the medical treatment does nothing for him and he wants to go on a “medication holiday” to prove that he does not need to be medicated. He said he will stop his medication if he receives an absolute discharge. In Dr. Pearce’s opinion, the medication holiday would need to be carefully monitored and he would need to abstain from drug use for at least a month before conducting the medication holiday. If the appellant does not agree to abstain, then there is a significant risk of decompensation and relapse to violent behaviour. [5] The Board determined that, based on these facts, he remained a significant threat to the safety of the public and his conditional discharge should be continued. Issues on Appeal [6] The appellant seeks an absolute discharge. He raises two arguments: 1. He submits that Dr. Pearce’s conclusion that he would stop treatment and decompensate if given an absolute discharge was not supported by the evidence. 2. The Board’s reasons were insufficient to support the conclusion that the appellant is a significant risk to public safety. Discussion [7] The appellant says that the Board’s findings that he remains a significant threat to the safety of the public defies logic and amounts to a “life sentence” for something that happened decades ago. In particular, he points to the fact that there have been no incidents of violence and he has not been hospitalized for five years. There was no evidence, he submits, that he would decompensate and become a risk. [8] Dr. Pearce’s conclusions were based on the fact that the appellant suffers from a major mental illness for which he continues to exhibit symptoms. He has a lack of insight to the illness and the corresponding risks. As set out in the hospital report, the appellant intends to stop all medication, and this creates a serious risk that he will decompensate. The appellant is not willing to abstain from drug use, which he claims is irrelevant. In fact, a combination of non-compliance with medication and substance abuse would lead to a return to psychotic symptoms, which led to the index offences. [9] In our view, the Board’s conclusion that the appellant poses a significant threat is reasonable based on the evidence at the hearing. [10] We do not agree that the reasons of the Board were insufficient. They clearly indicate the reasons for the disposition. The Board referred to the appellant’s progress, lack of violent acts and need to abstain from drugs, particularly cocaine, for at least one month. However, the appellant did not demonstrate that he is prepared to remain abstinent. [11] The Board concluded: It is clear from the evidence in the Hospital Report and the viva voce evidence of Dr. Pearce that there is a substantial risk of his continuing to use marijuana and cocaine which will produce a psychotic reaction and trigger his tendency to do violence. [12] We conclude that the disposition of the Board is reasonable. [13] For these reasons, the appeal is dismissed. “David Watt J.A.” “M.L. Benotto J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Mikelsteins v. Morrison Hershfield Limited, 2021 ONCA 155 DATE: 20210312 DOCKET: C66315 Fairburn A.C.J.O., Lauwers and Nordheimer JJ.A. BETWEEN Ivars Mikelsteins Plaintiff (Respondent) and M orrison Hershfield Limited Defendant (Appellant) David E. Greenwood and Christopher McClelland, for the appellant James D. Heeney and Julia Burke, for the respondent Heard: in writing On remand from the order of the Supreme Court of Canada, dated November 19, 2020. REASONS FOR DECISION [1] On June 20, 2019, we released our decision allowing the appeal from the judgment of the Superior Court of Justice dated November 22, 2018 in this matter. [1] On November 19, 2020, the Supreme Court of Canada, in response to a motion for leave to appeal by the respondent, rendered judgment remanding this matter to this court pursuant to s. 43(1.1) of the Supreme Court Act , R.S.C. 1985, c. S-26 for disposition in accordance with its decision in Matthews v. Ocean Nutrition Canada Ltd. , 2020 SCC 26, 449 D.L.R. (4th) 583. [2] After the remand was made, this court requested and received written submissions from the parties. The principal issue [3] The background to this matter is set out in detail in our reasons on the appeal. It is unnecessary to repeat all of that detail. In brief, the respondent commenced an action for wrongful dismissal. He then brought a motion for summary judgment. The motion judge awarded the respondent damages for wrongful dismissal. That award was not appealed. The motion judge also determined that the respondent was entitled to an additional payment for the shares that he held in the appellant’s parent corporation, Morrison Hershfield Group Inc., and a further entitlement to a share bonus. Those awards were the subject of the appeal. [4] The respondent was one of a select group of the appellant’s employees who were eligible to purchase shares of Morrison Hershfield Group Inc. Those shares were governed by the terms and conditions of the Amended and Restated Morrison Hershfield Group Inc. Shareholders’ Agreement, dated January 18, 2013 (the “Shareholders’ Agreement”). At the time that his employment was terminated, the respondent owned a total of 5,108 shares. [5] Under the terms of the Shareholders’ Agreement, the respondent, and other shareholders, were eligible to receive annual “Share Bonuses”. The share bonus payable in respect of each share is determined by an objective calculation based on the company’s financial results. The total share bonus payable to each shareholder depends on the total number of shares that the shareholder had previously decided to purchase. As we said in our earlier reasons, the share bonus is not related to the shareholder’s contributions as an employee of the appellant. It is, in effect, a dividend. [6] With respect to the respondent’s shareholdings, the motion judge determined that the respondent was entitled to: (i) hold the shares until the end of the reasonable notice period (i.e. 26 months after he was notified of his termination and his association with the appellant had ceased); and (ii) receive damages for the loss of the share bonus that would have been payable during such 26-month period. [7] Article 3 of the Shareholders’ Agreement deals with “Automatic Transfer Notices”, and applies in situations where, among other things, a shareholder resigns, is terminated, becomes bankrupt, or dies. Article 3.2 applies in cases of termination, and states: A Shareholder whose association with the Corporation and its Affiliates ceases by reason of termination by the Corporation of his/her employment with the Corporation and its Affiliates shall, immediately after such termination, be deemed to have given a Transfer Notice covering all of the Shares held by him/her on a date which is 30 days from the date he/she is notified of such termination by the Corporation. The Shareholders’ Agreement proceeds to specify that a shareholder that is deemed to have given a Transfer Notice under Article 3 is entitled to the “Fair Value” of his or her shares (as that term is defined in the Shareholders’ Agreement). [8] Contrary to the motion judge’s conclusions, we determined that the respondent was not entitled to have his shares valued as at the end of the notice period nor was he entitled to the share bonuses during that time. [9] The question that is now before us is whether the decision of the Supreme Court of Canada in Ocean Nutrition would direct that different conclusions ought to have been reached on those two issues. We conclude that it would not. [10] In Ocean Nutrition , at para. 55, Kasirer J. concluded that, in assessing an employee’s damages arising from a wrongful dismissal, a court should ask itself two questions: (i) Would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period? (ii) If so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right? [11] One very important factual point underpins these two questions. They are both directed at determining the rights of the employee qua employee. That is, they are both directed at determining the damages that an employee is entitled to arising from a breach of the contract of employment. [12] In this case, the respondent’s claim to the dividend does not arise from the breach of his contract of employment. Rather, we were determining the respondent’s rights as a shareholder of Morrison Hershfield Group Inc. pursuant to the Shareholders’ Agreement. In that regard, it is of importance to remember that the respondent did not receive his shares in Morrison Hershfield Group Inc. as some form of compensation as an employee of the appellant. To the contrary, the respondent was given the opportunity to use his own funds to purchase shares in Morrison Hershfield Group Inc. When he elected to do so, the respondent’s rights regarding his shares were dictated by the terms of the Shareholders’ Agreement. [13] The decision in Ocean Nutrition does not change the proper analysis to be applied to the issues raised on the appeal in this case. The respondent’s entitlement respecting his shares falls to be determined by his rights as a shareholder of Morrison Hershfield Group Inc., not by his status as a terminated employee of the appellant. To conclude otherwise would run the risk of interfering with the established law on the rights and obligations of shareholders, much of which is codified in corporate statutes such as the Business Corporations Act , R.S.O. 1990, c. B.16 and the Canada Business Corporations Act , R.S.C. 1985, c. C-44. [14] Just by way of example, s. 32 of the Business Corporations Act provides that a corporation may purchase or redeem any redeemable shares issued by it, which, in one sense, is what happened in this case. As we observed in our decision, there are very good reasons why an employee-owned corporation would not wish an employee to be able to exercise all of the rights of a shareholder once their employment is terminated. [15] We would add that the treatment of the payment of the amounts under the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.), does not change the law applicable to the rights being determined under the Shareholders’ Agreement. Other issues raised [16] The respondent raises certain other issues, including the possible application of the Employment Standards Act , 2000 , S.O. 2000, c. 41. With respect, the remand of this matter does not invite a wholesale reopening of the appeal and all matters relating to it: Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc. , 2017 ONCA 293, 135 O.R. (3d) 241, at para. 14, leave to appeal refused, [2016] S.C.C.A. No. 249. Rather, the remand is restricted to its terms, which was for “disposition in accordance with David Matthews v. Ocean Nutrition Canada Ltd. , 2020 SCC 26.” [17] None of the other issues raised by the respondent arise from the decision of Ocean Nutrition . Indeed, the Supreme Court of Canada expressly declined to deal with the application of minimum employment standards in its decision. Consequently, those issues are not open for re-argument. [18] Finally, the respondent sought a further oral hearing in this matter. The appellant said that no further oral argument was required. We agree with the appellant. The issue to be determined can be properly resolved through the written submissions of the parties. C onclusion [19] For these reasons, having reconsidered our decision in light of Ocean Nutrition , we affirm our earlier appeal decision. The appellant is entitled to its costs of the remand proceeding fixed in the amount of $10,000, inclusive of disbursements and HST. “Fairburn A.C.J.O.” “P. Lauwers J.A.” “I.V.B. Nordheimer J.A.” [1] Mikelsteins v. Morrison Hershfield Limited , 2019 ONCA 515, 56 C.C.E.L. (4th) 1.

COURT OF APPEAL FOR ONTARIO CITATION: Moar v. McLaughlin, 2021 ONCA 264 DATE: 20210423 DOCKET: C68833 Benotto, Miller and Trotter JJ.A. BETWEEN Brianne Harrison Moar Appellant and Daniel John McLaughlin Respondent Maybelline R. Massey, for the appellant Danica Maslov, for the respondent Heard and released orally: April 22, 2021 by video conference On appeal from the order of Justice J.R. Henderson of the Superior Court of Justice, dated October 9, 2020. REASONS FOR DECISION [1] The appellant submits that the motion judge erred in concluding that a material change in circumstances existed for the purposes of a motion to change under Rule 15 of the Family Law Rules . [2] The parties agreed that, pursuant to r. 16, the issue of whether a material change existed would be determined on a summary judgment motion. The motion judge concluded that there was a material change of circumstances. [3] The appellant submits that the motion judge should not have made the order because there was a genuine issue for trial. [4] We do not agree. The parties agreed at a case conference before Broad J. that the issue of whether there was a material change of circumstances be determined in advance of the motion change by way of summary judgment. [5] The appellant further submits that the motion judge erred in his application of the test for material change set out in Gordon and Goertz [1996] 2 S.C.R. 27. [6] Again, we disagree. [7] The respondent has moved, has a new partner and a change in his work schedule. These factors clearly fall within the Gordon and Goertz analysis. They are relevant to the best interest of the children, a matter within the discretion of the motion judge. [8] The appeal is dismissed with costs in the agreed upon amount of $3,500 all inclusive. “M.L. Benotto J.A.” “B.W. Miller J.A.” “Gary Trotter J.A. ”

COURT OF APPEAL FOR ONTARIO CITATION: Mohamoud v. Carleton Condominium Corporation No. 25, 2021 ONCA 191 DATE: 20210329 DOCKET: C67919 Tulloch, Miller and Thorburn JJ.A. BETWEEN Sadiya Ali Mohamoud Applicant (Appellant) and Carleton Condominium Corporation No. 25 Respondent (Respondent) Gary G. Boyd and Hilary Chung, for the appellant Melinda Andrews, for the respondent Heard: November 17, 2020 by video conference On appeal from the judgment of Justice Heather J. Williams of the Superior Court of Justice dated December 9, 2019, with reasons reported at 2019 ONSC 7127. REASONS FOR DECISION [1] T he appellant appeals the order of the application judge dated December 9, 2019, which dismissed her application under the Condominium Act , 1998, S.O. 1998, c. 19 (“the Act”). [2] The appellant has owned a unit in the respondent’s condominium since 2009. The appellant brought an application against the respondent alleging that: (1) the corporation failed to properly maintain and repair the common elements of the condominium building under ss. 89 and 90 of the Act, and (2) it acted in a manner that was oppressive or unfairly prejudicial, or that unfairly disregarded her interests, under s. 135 of the Act. [3] The application involved a noise complaint relating to fans located on the roof directly above the appellant’s condominium unit. The appellant informed the respondent that the noise was causing her discomfort in 2014. In 2019, the respondent removed two fans above the appellant’s unit. According to the appellant, the removal of these two fans reduced the noise to a tolerable level. The appellant alleged that the respondent did not take her complaints seriously, and did not rectify the problem in a timely manner. [4] The appellant asks this court to set aside the order of the application judge, raising two grounds of appeal: 1. the application judge erred in using the legal test of “reasonableness” when determining whether the respondent corporation acted oppressively within the meaning of s. 135 of the Act ; and 2. the application judge erred by only considering the applicant’s reasonable expectation that the respondent would comply with its maintenance and repair obligations, without also considering her other reasonable expectations, including that: the respondent would address her concerns in a timely manner; she could have quiet enjoyment of her unit; the respondent would act in accordance with the professional advice it received; and the respondent would take her concerns seriously. [5] For the following reasons, we dismiss the appeal. A. The test under s. 135(2) of the act [6] The judge dismissed the application, finding that the respondent met its obligations under the Act. In particular, she found that the respondent acted reasonably and appropriately when responding to the appellant’s noise complaint. [7] The appellant agrees that the application judge properly applied the test of reasonableness when she assessed whether the respondent breached its obligation to maintain and repair the common elements of the condominium under ss. 89 and 90 of the Act. However, she submits that the application judge erred in applying the same test of reasonableness when determining whether the respondent’s conduct was oppressive within the meaning of s. 135 of the Act . Put another way, the appellant contends that the application judge conflated the test of oppression under s. 135 of the Act with the test of reasonableness under ss. 89 and 90 . [8] Under s. 135(2) of the Act, the court must determine whether the impugned conduct is, or threatens to be, oppressive or unfairly prejudicial to the applicant or unfairly disregards their interests. The test under s. 135(2) has two prongs. First, the court must assess whether there has been a breach to the claimant’s reasonable expectations. If the answer is yes, the court must then go on to consider whether the conduct complained of amounts to oppression, unfair prejudice, or unfair disregard of the relevant interest: Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation , 2011 ONCA 667, 285 O.A.C. 372, at paras. 5-6; 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375 , 2016 ONCA 650, 61 B.L.R. (5th) 173, at para. 29 . [9] Reading the application judge’s reasons in their totality, it is clear that she understood and applied the correct test under s. 135(2) of the Act. The application judge correctly sets out the test at para. 36 of her reasons: A unit owner seeking an oppression remedy under the Condominium Act must show both that there was a breach of their reasonable expectations and that those reasonable expectations were breached by conduct legitimately characterized as oppressive. ( Weir , supra, at paras. 10-11.) [10] The application judge also grasped the nature of the appellant’s claim in relation to s. 135(2): namely, that the respondent allegedly “ignored her, disbelieved her complaints about the noise and deliberately dragged its heals when responding to her complaints.” [11] After thoroughly engaging with these concerns, the application judge made the following finding: I find that Ms. Mohamoud had a reasonable expectation that CCC25 would comply with its statutory obligations to repair and maintain its common elements. I also find that CCC25 acted reasonably and in compliance with these obligations. Stated otherwise, the application judge found that the appellant failed to satisfy the first prong of the test: the respondent did not act in a manner that breached the appellant’s reasonable expectations because it acted reasonably and complied with its statutory obligations. [12] Moreover, based on the factual matrix before her, the application judge was entitled to find that the respondent’s conduct did not amount to oppression, unfair prejudice, or unfair disregard of the appellant’s interests on the basis that the respondent acted reasonably. In our view, the evidence, as set out by the application judge, was consistent with the finding that the respondent did not act in a manner that was oppressive or unfairly prejudicial to the appellant, or that it unfairly disregarded her interests. In coming to that determination, the application judge noted that: 1. There was evidence that the fans were inspected and maintained on a regular basis by a company retained by the respondent; 2. After the appellant brought her concerns to the respondent’s attention, the fans were inspected specifically with a view to identifying the source of the noise; 3. In August 2014, the respondent retained a company that inspected the roof of the building and found nothing that was rattling; 4. In January 2015, the same company inspected and serviced the fans, and was unable to identify any problems; 5. In the spring of 2015, the appellant retained a consultant who concluded that none of the noise levels in the appellant’s unit exceeded industry guidelines. Highway traffic and a refrigerator were the sources of the loudest noises in the appellant’s unit; 6. In June 2016, the company retained by the respondent inspected the fans and exchanged some of the blower assemblies. The company placed quieter blowers in the fans above the appellant's unit; 7. In February 2017, the company conducted an "on/off' test to ascertain which fans caused the noise. The appellant reported that turning off fans other than those over her own unit eliminated the noise problem entirely. The company removed those fans; 8. In September 2018, mechanical engineers inspected the two fans over the appellant’s unit and concluded that neither fan was particularly noisy.  One of the fans was quiet according to industry standards, while the other had only “a slight bearing noise”; 9. The fans over the appellant’s unit were serviced on October 5, 2018; 10. When the respondent sought to change the fans over the appellant’s unit, the appellant’s consultant objected to the installation instructions of the fans' manufacturer, resulting in further delay; 11. The new fans were installed on July 16, 2019, in accordance with the manufacturer's original instructions, even though the respondent’s expert was of the opinion that these fans were not the cause of the noise in the appellant's unit; and 12.  After the fans over the appellant’s unit were replaced, the appellant initially said that the noise and vibration persisted, however her own expert did some testing and reported that the noise in her unit was at acceptable levels. [13] As a result, the application judge was satisfied that the respondent had addressed the appellant's complaint in a reasonable manner by meeting with her, communicating with her orally and in writing, visiting her unit on multiple occasions, retaining contractors and experts to investigate, and in following the recommendations of the experts. The application judge’s finding that the respondent’s conduct did not amount to oppression, unfair prejudice, or unfair disregard is entitled to deference on appeal. [14] We find no error in the decision of the application judge. [15] This ground of appeal is dismissed. B. The applicant’s other reasonable expectations [16] Again, the appellant submits that the application judge erred by failing to consider her reasonable expectations that: the respondent would address her concerns in a timely manner; she could have quiet enjoyment of her unit; the respondent would act in accordance with the professional advice it received; and the respondent would take her concerns seriously. [17] The appellant’s argument is not borne out in the facts, as found by the application judge, and as reiterated above, in para. 12. The respondent tried to address the appellant’s concerns in a timely manner. It also tried to ensure that she had quiet enjoyment of her unit. The respondent took action even when it was contrary to the professional advice that it had received. The application judge specifically found that the respondent took the appellant’s concerns seriously, and that the respondent spent considerable amounts of money trying to address them. [18] We find no error in the decision of the application judge. It appears the appellant is simply attempting to re-litigate the factual determinations made by the application judge. [19] We give no effect to this ground of appeal. C. Conclusion and Disposition [20] The appeal is dismissed. As noted in the hearing, costs are awarded to the respondent in the amount of $12,000, inclusive of disbursements and HST . “M. Tulloch J.A.” “B.W. Miller J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Motuz (Re), 2021 ONCA 247 DATE: 20210420 DOCKET: C68632 Fairburn A.C.J.O., Doherty and Sossin JJ.A. IN THE MATTER OF: Gary Robert Motuz AN APPEAL UNDER PART XX.1 OF THE CODE Dean Embry, for the appellant, Gary Robert Motuz Gerald Brienza, for the respondent, Attorney General of Ontario Julia Lefebvre, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care Heard and released orally: April 16, 2021 by video conference On appeal from the disposition of the Ontario Review Board, dated July 13, 2020, with reasons dated August 12, 2020. REASONS FOR DECISION [1] This is an appeal from the July 13, 2020 disposition of the Ontario Review Board (“Board”), imposing a detention order. [2] On February 24, 2021, the Board convened the appellant’s annual hearing pursuant to s. 672.81(1) of the Criminal Code , R.S.C. 1985, c. C-46, resulting in another detention order. The reasons for the most recent detention order were released on March 18, 2021. Those reasons are largely the same as the reasons released on August 12, 2020. [3] As the July 13, 2020 disposition is no longer in effect, the parties were asked to provide written submissions on the question of mootness ahead of today’s hearing. They were also permitted to make oral submissions on the question of mootness this morning. [4] All parties agree that the matter is moot. [5] The appellant argues, though, that because the reasons for the current disposition are largely the same as the reasons for the now moot disposition, the March 18, 2021 reasons should simply be incorporated into the present appeal without the need for new or additional arguments. [6] In oral submissions today, the Crown has taken the position that the matter is moot and should not be heard by this court without the benefit of a full record. [7] The Person in Charge of Waypoint Centre for Mental Health Care agrees with the Crown that this court should not exercise its discretion to hear the appeal today. [8] We agree that this appeal is moot, and we find that it should not be heard today. [9] The appellant’s request is to attempt to turn an appeal from the old disposition into an appeal from the new disposition. To be clear, the new disposition has not been appealed from and there is no record before this court as it relates to the new disposition. On their face alone, the reasons for the new disposition demonstrate that things have changed to some extent between the two dispositions. Counsel are in agreement that, among other things, there has been a fairly recent decompensation over the winter. Not only are we without a transcript of the evidence upon which the February 24, 2021 disposition rests, but we are also without the most recent hospital report setting out the appellant’s progress and status between the July 13, 2020 disposition and the February 24, 2021 disposition. [10] We decline to determine the merits of an appeal without an appropriate record, particularly an appeal that rests on the question of the reasonableness of the Board’s disposition. [11] The appeal from the 2020 order is therefore dismissed as moot. [12] If the appellant commences an appeal from the February 24, 2021 disposition, this court will endeavour to find as early a date as possible in the circumstances for the hearing of the appeal. “Fairburn A.C.J.O.” “Doherty J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Nagpal v. IBM Canada Ltd., 2021 ONCA 274 DATE: 20210430 DOCKET: C67398 Doherty, Pepall and Thorburn JJ.A. BETWEEN Vinay Nagpal Plaintiff (Respondent) and IBM Canada Ltd. Defendant (Appellant) Jennifer Dolman and Aislinn Reid, for the appellant IBM Canada Ltd. Michael N. Freeman, for the respondent Vinay Nagpal Heard: February 16, 2021 by videoconference On appeal from the judgment of Justice Paul B. Schabas of the Superior Court of Justice, dated July 30, 2019, with reasons reported at 2019 ONSC 4547, 2019 C.L.L.C. 210-065. Thorburn J.A.: A. OVERVIEW [1] This is an appeal of an order dismissing IBM Canada Ltd.’s (“IBM”) motion for summary judgment and granting summary judgment in favour of IBM’s former employee, Vinay Nagpal. [2] In so doing, the motion judge held that IBM had not established that Mr. Nagpal had resigned, abandoned his position at IBM, or that his contract of employment was frustrated. These were the issues placed before the motion judge by IBM. [3] First, the motion judge held that, “there was no clear and unequivocal resignation by Mr. Nagpal. Nor can it be said that Mr. Nagpal’s actions, viewed objectively by a reasonable person, clearly and unequivocally indicated an intention to no longer be bound by his employment contract with IBM.” As such, the motion judge held that Mr. Nagpal did not resign or abandon his employment with IBM. [4] Second, the motion judge found that IBM could not rely on the doctrine of frustration as IBM “had no basis to find that his illness was permanent, or even long-term” at the time his employment ended. [5] Third, although he held it was not necessary for his decision, the motion judge was not satisfied that the Short-Term Disability (“STD”) Policy formed part of the employment contract which could be relied on by IBM to support its contention that Mr. Nagpal resigned. [6] On the motion, the parties had agreed that, should IBM be unsuccessful in establishing that Mr. Nagpal either resigned, abandoned his position, or that the contract was frustrated, it would follow that Mr. Nagpal had been wrongfully dismissed. Noting this concession, the motion judge granted Mr. Nagpal summary judgment for wrongful dismissal, with damages to be assessed. [7] On this appeal, IBM claims the motion judge: 1. Made palpable and overriding errors by misapprehending evidence that Mr. Nagpal had resigned, abandoned his employment or that his contract of employment was frustrated; 2. Erred in holding that the STD Policy was not part of Mr. Nagpal’s employment contract and that Mr. Nagpal was not estopped from denying that the STD Policy was enforceable; and, 3. Erred in finding that IBM had a duty to further discuss Mr. Nagpal’s medical condition with him. [8] For the reasons that follow, I would dismiss the appeal. B. BACKGROUND Mr. Nagpal’s employment history [9] Mr. Nagpal was employed by IBM for over two decades and spent fifteen years in leadership or management positions. [10] In 2011, he applied for and was granted a new leadership position. Shortly thereafter, he began experiencing stress and mental health problems. Mr. Nagpal attributed these difficulties to a challenging employee and he sought support from his supervisor, Rick Simpson. The motion judge found that, by March 2012, Mr. Simpson was aware of Mr. Nagpal’s stress and mental health challenges but took few steps to address them. By November 2012, Mr. Simpson was tracking Mr. Nagpal’s absences from work and, in January 2013, Mr. Simpson gave Mr. Nagpal a poor performance evaluation, the first he had received. [11] In March 2013, Mr. Nagpal called in sick. Mr. Nagpal advised IBM that his doctor recommended he take six weeks off and he commenced a leave of absence. He was referred to Manulife Financial Corp. (“Manulife”), which administers IBM’s STD Policy. The STD Policy [12] Under the STD Policy, qualified IBM employees with at least five years of service are provided 100% of their salary for the first 26 weeks of disability leave. To qualify, an employee must have an illness or injury that prevents the employee from performing the essential duties of the occupation. Documentation must be provided to Manulife in support of the claim. [13] If short-term disability benefits are denied by Manulife, the employee may either return to work, appeal Manulife’s decision and remain on an administrative unpaid leave of absence until the appeal is adjudicated by Manulife, or apply for long-term disability. The STD Policy also provides that: If you have not taken any action in support of your appeal within one month of the commencement of the unpaid leave, IBM will consider that you have abandoned your appeal. In this instance you will be expected to return to work immediately or will be presumed to have voluntarily resigned your employment with IBM . [Emphasis added.] [14] While Manulife administers the STD Policy on behalf of IBM, the policy provides that “IBM in its sole discretion shall decide who is properly entitled to STD benefits”. It also provides that “IBM reserves the right to modify, discontinue, suspend, or improve” its disability policies and, further, that “[n]othing contained in [the policy] shall be construed as creating an express or implied obligation on the part of IBM” to maintain its disability policies. Mr. Nagpal’s application for STD benefits [15] In May 2013, Mr. Nagpal was told he had to provide documentation to support his claim for short-term disability benefits to Manulife. [16] In June, Mr. Nagpal’s psychiatrist completed Manulife’s short questionnaire confirming that he was being treated for depression and anxiety, among other things. [17] In early July, his psychologist completed Manulife’s questionnaire, advising that Mr. Nagpal had “poor stress coping, cognitive impairment, limited energy and tolerance” and that the duration of this was “unknown”. She stated that “return to work is premature” and would “likely exacerbate symptoms and stall recovery” and was “not recommended”. Manulife acknowledged receipt of these materials, thanked Mr. Nagpal for his quick response, and told him that, “[a]s the information is reviewed, we will follow-up with you.” [18] Neither Mr. Nagpal’s psychiatrist nor psychologist provided their notes and reports to Manulife, as requested by the questionnaire. Manulife never followed up to request these additional materials, nor did Mr. Nagpal receive copies of the information his treating professionals sent to Manulife. Manulife’s response [19] On July 16, Manulife’s medical consultant, Dr. Hines, reviewed Mr. Nagpal’s file. On the basis of the responses to questionnaires, he observed that there was “some improvement” in Mr. Nagpal’s condition. He acknowledged that Mr. Nagpal was on medication for depression and that there were “workplace issues” but stated that Mr. Nagpal “should be able to receive treatment while working.” He did not contact Mr. Nagpal’s doctors. The motion judge noted that it was difficult to reconcile Dr. Hines’ conclusion with the views of those treating Mr. Nagpal. [20] On July 19, Manulife told Mr. Nagpal that his benefits would be terminated based on the information received from his two physicians and Dr. Hines’ assessment. Mr. Nagpal was advised that he could appeal but that there would be no point in appealing unless he submitted information “that has not already been reviewed”. [21] On July 22, IBM, through Mr. Simpson, informed Mr. Nagpal that he could return to work or appeal Manulife’s decision, and that he had until August 22, 2013 to provide “the appropriate documentation” required to support the appeal to Manulife, otherwise IBM would consider the appeal abandoned and “you will be required to return to work or will be considered to have voluntarily resigned your employment.” The termination of Mr. Nagpal’s benefits and IBM’s response [22] Mr. Nagpal did not commence an appeal and provided no new information to Manulife, although his benefits were to expire on July 30. He contacted his doctors, who confirmed that Manulife had not requested any additional information and that they were unable to offer anything “new” to Manulife. Mr. Nagpal deposed that, at this point, he thought IBM was putting him “between a rock and a hard place” and that he saw no point in appealing, as Manulife’s representative had told him there was nothing to be gained. [23] Instead, he engaged legal counsel, Mr. Freeman, who advised IBM by letter dated July 29 that: 1. Mr. Nagpal “ cannot return to work ” (emphasis added); 2. “[T]here is no new information that would be brought forward in support of an appeal other than what was provided by Mr. Nagpal’s doctors” on June 2 and July 2, 2013; 3. The doctors “would be pleased to provide updated information if required”; and, 4. “Mr. Nagpal has no intention of resigning, nor will he be cajoled into doing so. He is, however, prepared to enter into negotiations that might lead to the development of an ‘exit package’ whereby he would agree to leave IBM provided that he is reasonably compensated for doing so….” 5. He looked forward to “the courtesy of your prompt reply”. [24] Mr. Nagpal’s short-term disability benefits expired the following day. [25] No one at IBM responded to Mr. Nagpal counsel’s July 29, 2013 letter until September 10, when IBM offered Mr. Nagpal three options: (1) a return-to-work meeting “to discuss your barriers to returning to work”; (2) communicate directly with IBM “to address any workplace concerns”; and/or (3) contact the confidential employee assistance provider for information about “services such as Professional Counselling, Family Support, Nutrition and Health Coaching.” He was told that if he did not “engage any of these processes by September 27, 2013 we will consider you to have voluntarily resigned on September 27, 2013.” [26] On September 19, his counsel responded, stating that “Mr. Nagpal’s healthcare providers advise that he is not capable of returning to work even with some form of accommodation…. [T]he only satisfactory resolution is that if Mr. Nagpal’s disability cannot be reinstated, his salary should continue to be paid to him. It appears the intent is to either starve Mr. Nagpal into settlement or force him to resign from his employment. Please rest assured that neither of these will happen.” [27] Mr. Nagpal’s counsel received no response from IBM. On October 9, the company wrote to Mr. Nagpal stating that it considered him to “have abandoned [his] employment with IBM Canada Limited.” While there were further discussions with Mr. Nagpal’s counsel, IBM did not reinstate Mr. Nagpal as requested or provide him with an exit package. [28] In December 2013, Mr. Nagpal commenced an action against IBM alleging, among other things, wrongful or constructive dismissal. In May 2014, he also commenced an action against Manulife, alleging breach of contract, which was settled by payment of a lump sum of an undisclosed amount prior to the motion on appeal. Mr. Nagpal’s ongoing health challenges [29] There is no dispute that Mr. Nagpal was unwell in 2013 and continued to have mental health challenges for several years following these events. The motion judge noted that, “[i]n the litigation, additional medical information, in the form of notes and reports have been produced that may well have supported continuing STD, and providing [long-term disability], benefits.” [30] The motion judge found that these documents were in the doctors’ possession but not Mr. Nagpal’s and, as noted above, that Mr. Nagpal was unaware of the contents of the documents submitted to Manulife. C. ANALYSIS OF THE Issues 1. Did the motion judge make palpable and overriding errors of fact in holding that Mr. Nagpal neither resigned nor abandoned his employment, nor was the contract frustrated? The law [31] As the motion judge observed, resignation must be clear and unequivocal. The evidence must objectively reflect an intention to resign, through words or conduct. Context is important. The totality of the circumstances must be considered: Kieran v. Ingram Micro Inc. (2004) , 189 O.A.C. 58 (C.A.), at para. 27. [32] The test for abandonment by contrast, is whether the statements or actions of an employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract and, in particular, the implied term of every employment contract that the employee must attend work unless excused or unable: Betts v. IBM Canada Ltd. , 2015 ONSC 5298, 2016 C.L.L.C. 210-003 (“ Betts (ONSC) ”), at para. 57, aff’d 2016 ONSC 2496, 31 C.C.E.L. (4th) 60 (Div. Ct.) (“ Betts (Div. Ct.) ”); Pereira v. The Business Depot Ltd. , 2009 BCSC 1178 , at para. 29, rev’d on other grounds, 2011 BCCA 361 , 20 B.C.L.R. (5th) 295 . [33] A contract is frustrated where, without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract: Duong v. Linmar Corp , 2010 ONSC 3159, 82 C.C.E.L. (3d) 84, at paras. 33-36, aff’d 2011 ONCA 38 and Naylor Group Inc. v. Ellis-Don Construction Ltd. , 2001 SCC 58, [2001] 2 S.C.R. 943 at 967-968. [34] The determination of whether a temporary incapacity to work constitutes frustration is also contextual. Illness alone is not a frustrating event and one must look at the length of the illness in relation to the duration of the employment contract: Duong , at para. 35; Antonacci v. Great Atlantic & Pacific Company of Canada Ltd. (1998), 35 C.C.E.L. (2d) 1 (Ont. C.J.), at para. 37, aff’d 128 O.A.C. 236 (C.A.), at paras. 9-11. [35] Evidence that relates to the post-termination nature and extent of an employee’s disability is permitted only if that evidence sheds light on the nature and extent of the employee’s disability at the time of the employee’s dismissal: Ciszkowski v. Canac Kitchens , 2015 ONSC 73, 20 C.C.E.L. (4th) 171, at para 156. The motion judge’s decision [36] The motion judge found that Mr. Nagpal said clearly, through his lawyer, that he had no intention of resigning or abandoning his employment. [37] He rejected IBM’s argument that, notwithstanding these statements, Mr. Nagpal’s conduct in failing to appeal Manulife’s decision or return to work amounted to abandonment or resignation. In his view, Mr. Nagpal’s conduct could not be looked at in isolation. IBM ignored the letters from Mr. Nagpal’s lawyer and simply relied on the process set out in the STD Policy, the application of which, it had delegated to Manulife. When that ran its course, IBM presented Mr. Nagpal with options that all contemplated a return to work, even though IBM knew Mr. Nagpal had been on STD leave for four months due to mental health issues, and had been told by Mr. Nagpal’s lawyer that Mr. Nagpal’s treating professionals had advised him against returning to work. [38] The motion judge observed that IBM “made no attempt to engage with Mr. Freeman or obtain any further information about Mr. Nagpal’s condition, despite the fact that IBM knew he was under medical care…”. While the motion judge noted that Mr. Freeman failed to “identify the gap in information [provided by Mr. Nagpal] or pursue an appeal [with Manulife] which might have disclosed more about Mr. Nagpal’s condition to IBM”, this alone did not mean Mr. Nagpal resigned or abandoned his employment. [39] Finally, he considered IBM’s argument that the STD Policy was part of Mr. Nagpal’s contract of employment such that Mr. Nagpal was deemed to have voluntarily resigned. The motion judge found that the STD Policy was not part of the employment contract that could be relied upon by IBM to conclude that he had resigned but held that this finding was not necessary for his decision. “[H]aving regard to the entire factual context”, he held that Mr. Nagpal did not resign, nor did his actions, viewed objectively, indicate that he no longer intended to be bound by the terms of his employment contract. [40] Moreover, at para. 52, he held that the contract of employment was not frustrated because when his employment was terminated: IBM had very limited evidence of Mr. Nagpal’s condition, and no basis to find that his illness was permanent, or even long-term. It made no inquiries either. To the extent that evidence subsequently disclosed demonstrated that he had a longer-term illness, this was something that could easily be tolerated by a large company like IBM. An ability to tolerate long-term absences is indicated by the availability of long-term disability benefits and by the fact that had Mr. Nagpal appealed Manulife’s decision his employment status would have continued, albeit without pay. [41] Since IBM conceded on the motion for summary judgment that Mr. Nagpal was wrongfully dismissed if IBM’s arguments regarding resignation, abandonment, and frustration were unsuccessful, the motion judge granted summary judgment in favour of Mr. Nagpal. Analysis and conclusion [42] There is no dispute that deference is owed to the motion judge on appeal. Whether or not there is a genuine issue requiring trial is a question of mixed fact and law. Absent an error in principle or an error with regard to a purely legal question, the motion judge’s findings should be overturned only where there is palpable and overriding error: Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80-84. [43] I see no error in the motion judge’s finding that IBM did not satisfy its onus to establish that Mr. Nagpal resigned or abandoned his employment on or before October 9, 2013, because (i) he and his counsel made clear and unequivocal assertions that he was not resigning or abandoning his employment; (ii) he advised IBM that he was suffering from ongoing mental health issues and, (iii) Mr. Nagpal’s lawyer told IBM that Mr. Nagpal’s healthcare providers said he was “incapable of returning to work” and “they would be pleased to provide updated information if required”. [44] Based on this undisputed evidence, I find there was no palpable and overriding error in the motion judge’s findings of fact or his conclusion that, viewed objectively, Mr. Nagpal’s actions do not reflect a clear intention to resign nor do they indicate an intention to no longer be bound by the employment contract. As discussed in greater detail below, nor do I accept IBM’s argument that, notwithstanding this evidence, Mr. Nagpal resigned by operation of the STD Policy. As such, IBM’s argument that the motion judge erred in finding that Mr. Nagpal neither resigned nor abandoned his employment must fail. [45] I further find that the motion judge made no legal error in concluding that the contract of employment was not frustrated. [46] IBM claims the motion judge made a palpable and overriding error of fact by failing to consider evidence that, at the time of Mr. Nagpal’s termination of employment, “there was no reasonable likelihood of him returning to work at IBM within a reasonable period and that the contract of employment was therefore frustrated. This evidence was in the form of letters from legal counsel referenced above, and medical evidence.” [47] I disagree. IBM’s argument on the motion and before this court was that it was not provided with sufficient information to know the extent of Mr. Nagpal’s illness or when he could return to work. Since IBM did not know and did not ask Mr. Nagpal’s counsel to provide the information from Mr. Nagpal’s treating medical professionals, whom he said “would be pleased to provide updated information if required”, IBM could not satisfy its onus to establish that the contract of employment was frustrated at the time his employment terminated. [48] IBM cited Ciszkowski to support its position on appeal that post-termination evidence is permitted so long as it relates to the nature and extent of an employee's disability at the time of termination of employment. [49] The Ciszkowski decision was noted by the motion judge. He held, however, that the case also provides that an employer is not permitted to rely on post‑termination evidence if it is not relevant to the dismissal date. The medical notes IBM introduced on the motion were written prior to Mr. Nagpal’s dismissal but were not in IBM’s possession at the time of dismissal. They are evidence that demonstrates only that, sometime later, IBM discovered he had a longer-term illness. [50] Moreover, the letters from Mr. Nagpal’s lawyer, which were available to IBM at the time his employment was terminated, were before the motion judge and his interpretation of those letters attracts deference. The letters do not establish that Mr. Nagpal’s illness was so severe that he was likely unable to continue his employment after the expiration of the term of IBM’s long-term disability policy. [51] For these reasons, IBM’s claim that the contract of employment was frustrated must fail. 2. Did the motion judge err in holding that the STD Policy was not part of Mr. Nagpal’s employment contract? [52] IBM raises several arguments concerning the motion judge’s treatment of the STD Policy. IBM claims (i) the motion judge erred by granting summary judgment on a basis not pleaded, namely that the STD Plan did not form part of Mr. Nagpal’s contract of employment; (ii) the motion judge applied incorrect legal principles in determining that the STD Policy did not form part of the contract of employment; and in any event, (iii) Mr. Nagpal was estopped from denying the enforceability of the STD Policy. [53] In short, IBM claims that the STD Policy confers benefits on employees that they are not otherwise entitled to under statute or common law. The condition of receiving those benefits is that employees comply with the terms set out in the policy. As such, IBM claims the motion judge was wrong to decide that the STD Policy did not form part of the contract of employment and erred in failing to give effect to the STD Policy’s presumption of resignation. [54] As noted by IBM, this STD Policy has been found by other courts to be enforceable, insofar as noncompliance with procedures set out in the policy (i) may justify dismissal or (ii) may support a finding of resignation or abandonment: Betts (ONSC) , at para. 62; Betts (Div. Ct.) , at para. 19. [55] The motion judge nonetheless held that the STD Policy could not be “relied on by IBM to conclude that Mr. Nagpal’s failure to appeal Manulife’s decision and his subsequent failure to return to work amounted to a resignation”. He observed that termination provisions – rebutting an employee’s common-law entitlement to termination only on reasonable notice – require clear, express, and unambiguous language in the contract of employment. In his view, the STD Policy did not form part of the contract of employment because there was no evidence of a common intention to be bound by its terms, as IBM could change those terms unilaterally at any time. His analysis of this issue is consistent with the authorities in Leeming v. IBM Canada Ltd. , 2015 ONSC 1447, at paras. 48-51; Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (S.C.), at paras. 10-28, per McLachlin J. (as she then was); Cheong v. Grand Pacific Travel & Trade (Canada) Corp. , 2016 BCSC 1321, 35 C.C.E.L. (4th) 316, at para. 48. [56] He held however, at para. 45, that it was not necessary for him to decide whether the STD Policy formed part of Mr. Nagpal’s contract of employment. [57] I agree with the motion judge that it is not necessary to decide whether this STD Policy forms part of the contract of employment because, even if it were part of the employment contract, the provision of the STD Policy at issue provides only that Mr. Nagpal will be “ presumed to have voluntarily resigned” (emphasis added). [58] I accept that, regardless of whether it forms part of the contract of employment, the presumption contained in the STD Policy could be relevant to a determination of whether Mr. Nagpal in fact clearly and unequivocally resigned his employment, as suggested by the Divisional Court in Betts , at para. 19. But this presumption must be looked at in the context of the other evidence that (i) Mr. Nagpal and his counsel clearly and consistently said that he did not intend to resign, and (ii) the above medical opinions substantiate Mr. Nagpal’s claim that he was suffering from mental health issues and there were concerns about his ability to return to work. Even if the presumption of resignation were part of the contract of employment, it was open to the motion judge to find that the evidence, taken as a whole and viewed objectively, does not clearly and unequivocally indicate Mr. Nagpal’s intention to resign or abandon his employment contract, particularly given the evidence that he was unable to work when he was seen by his psychologist. [59] In my view, Mr. Nagpal’s conduct, and that of his lawyer, was not without fault. But the motion judge was alive to these issues. As he noted, “[e]ach case turns on its own facts.” He considered and distinguished Betts and found on the evidence before him that, notwithstanding the language of the STD Policy, Mr. Nagpal did not resign. This finding is entitled to deference. [60] I cannot accept IBM’s argument that the motion judge erred by deciding the motion on a basis not pleaded by Mr. Nagpal. IBM raised the effect of the STD Policy on its motion; Mr. Nagpal was entitled to dispute IBM’s assertions. The motion judge was invited to consider the effect of the STD Policy and, in any event, did not decide the motion on the basis of its unenforceability. Moreover, there was no unfairness in granting Mr. Nagpal summary judgment given IBM’s concession that liability would follow from the failure of its motion. [61] Finally, because the motion judge did not decide the motion for summary judgment on the basis of the enforceability of the STD Policy, I need not address IBM’s estoppel argument. 3. Whether the motion judge erred in finding that IBM had a duty to discuss Mr. Nagpal’s medical condition further with him [62] IBM also claims that the motion judge erred by asserting that IBM had a duty to discuss Mr. Nagpal’s medical condition with him. [63] The motion judge remarked, at para. 38, that: IBM should have done more when Mr. Nagpal clearly expressed an intention to return to work when he was able to do so and said he could not do so because of his continuing illness, on the advice of his doctors. Instead, on September 10, rather than reaching out to Mr. Freeman [Mr. Nagpal’s lawyer] and inquiring into why Mr. Nagpal, a senior, a [sic] long-time employee was not able to return to work, Ms. Runnalls [from IBM] gave him an ultimatum and Mr. Simpson [from IBM] initiated steps to permanently replace Mr. Nagpal. [64] This statement was made in the context of the motion judge’s analysis of whether IBM had established that Mr. Nagpal resigned or abandoned his employment, not in the context of a free-standing duty on IBM’s part. [65] Furthermore, as noted at para. 30 of the motion judge’s reasons, the parties agreed that unless IBM was able to establish that Mr. Nagpal resigned or abandoned his employment, or that his contract of employment was frustrated, IBM would concede that Mr. Nagpal was wrongfully dismissed. [66] Consistent with that agreement, the motion judge held, at para. 54 of his reasons, that: In light of my findings that Mr. Nagpal did not resign or abandon his employment, and that the employment contract was not frustrated, IBM’s motion for summary judgment is dismissed. It follows, then, that Mr. Nagpal was wrongfully dismissed, and I grant summary judgment in favour of the plaintiff accordingly. Although Mr. Nagpal brought no motion for summary judgment, the Court can grant judgment in such circumstances when all of the relevant evidence is before the Court, as here, and where, as here, the parties’ agreed that the only remaining issue if IBM failed on its motion, is to determine damages . [Emphasis added] [67] Given the above concession that the wrongful dismissal claim succeeds if the claims of resignation, abandonment, and frustration are unsuccessful, the only remaining issue is the determination of damages. D. CONCLUSION [68] For the above reasons, I would dismiss the appeal and remit the issue of damages to the motion judge. [69] The parties did not reach an agreement on costs of the appeal and the motion below. I would order that, if the parties are unable to reach an agreement, the respondent shall make written submissions, not exceeding five pages, within 14 days of the release of these reasons. The appellant shall make written submissions, not exceeding five pages, within 10 days after the respondent makes his submissions. Released: April 30, 2021 “D.D.” “J.A. Thorburn J.A.” “I agree. Doherty J.A.” “I agree. S.E. Pepall J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Nemchin v. Green, 2021 ONCA 342 DATE: 20210519 DOCKET: C67869 Roberts, Trotter and Thorburn JJ.A. BETWEEN Tatiana Nemchin Plaintiff (Appellant) and Yvonne Green Defendant (Respondent) Joseph Y. Obagi and Elizabeth A. Quigley, for the appellant Stephen G. Ross, Thomas Macmillan and Meryl Rodrigues, for the respondent Heard: October 27, 2020 by video conference On appeal from the order of Justice Sylvia Corthorn of the Superior Court of Justice, dated October 28, 2019, with reasons reported at 2019 ONSC 6243. COSTS ENDORSEMENT [1] On April 16, 2021 we allowed the appeal and amended various paragraphs of the trial judge’s October 28, 2019 order. The trial judge had ordered the appellant to pay to the respondent an additional amount to “top up” the appellant’s assigned benefits under the Sun Life income continuation plan to account for Sun Life’s deduction of income taxes at source. We set aside that portion of the order and required the respondent to reimburse the appellant for any “top up” amounts paid by the appellant pursuant to the order. We granted the appellant her partial indemnity costs in the agreed upon amount of $30,000. [2] We invited the parties to make further written submissions about the costs of the motion before the trial judge if they could not agree on their disposition in the light of our decision. They could not and we have reviewed their costs submissions. [3] In her March 3, 2020 endorsement, reported as Nemchin v. Green , 2020 ONSC 1375, the trial judge disposed of the costs related to two motions: she awarded the respondent costs for its successful assignment and prejudgment interest motion but concluded that there should be no order with respect to costs for the second motion dealing with various aspects of the treatment of the Sun Life benefits which culminated in her October 28, 2019 “top up” order (“the top up motion”). The trial judge was of the view that both parties were responsible for the lack of agreement reached with respect to the terms of the assignment of the appellant’s rights under the Sun Life plan. [4] The appellant seeks costs related to the top up motion. The respondent says there should be no costs. In the event that we award costs to the appellant, the parties have agreed that costs should be in the amount of $10,000. [5] We agree that the appellant is entitled to costs. [6] While, as the respondent points out, the parties’ respective submissions were developed somewhat differently on appeal, this was understandable in the circumstances as the parties had to respond to the trial judge’s unanticipated top up order. As the trial judge noted, the terms of her order “differ from the specific terms proposed by counsel for the parties during submissions”. [7] The tax treatment of the assigned benefits proved a stumbling block for the parties’ agreement on the terms of the assignment. Had the parties sought an advance ruling from the CRA on the tax treatment of the benefits, as suggested by the appellant, the tax treatment issue could have been ascertained and an agreement more likely achieved. The top up motion could have been avoided or, at the very least, could have proceeded on a more certain factual footing. Instead, both the top up motion and the resulting appeal were argued without a concrete understanding of the tax consequences of the assignment from the CRA’s perspective. [8] Moreover, as we noted in paragraph 41 of our reasons disposing of the appeal, the appellant should be relieved of the financial burden related to the implementation of the assignment of her rights under the Sun Life plan for the period of the assignment. As a result, she is entitled to her costs of the motion to deal with the mechanical aspects of the assignment. [9] Accordingly, the respondent shall pay to the appellant the agreed upon amount of $10,000 for her costs in relation to the top up motion. “L.B. Roberts J.A.” “Gary Trotter J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Nemchin v. Green, 2021 ONCA 238 DATE: 20210416 DOCKET: C67869 Roberts, Trotter and Thorburn JJ.A. BETWEEN Tatiana Nemchin Plaintiff (Appellant) and Yvonne Green Defendant (Respondent) Joseph Y. Obagi and Elizabeth A. Quigley, for the appellant Stephen G. Ross, Thomas Macmillan and Meryl Rodrigues, for the respondent Heard: October 27, 2020 by video conference On appeal from the order of Justice Sylvia Corthorn of the Superior Court of Justice, dated October 28, 2019, with reasons reported at 2019 ONSC 6243. Roberts J.A.: Overview [1] The appellant appeals from the trial judge’s order requiring her to top up the amount of the long-term disability benefits that she assigned to the respondent’s insurer pursuant to s. 267.8(12) of the Insurance Act , R.S.O. 1990, c. I.8. [2] Following the successful trial of her action, the appellant was awarded substantial damages against the respondent. The respondent then moved under s. 267.8(12) of the Insurance Act for an order requiring the appellant to assign her rights to the benefits she receives under an income continuation plan to the respondent’s insurer. The trial judge granted the respondent’s request and included an additional order that the appellant “top up” any amount paid from her insurer, Sun Life Assurance Company of Canada, to the respondent’s insurer, Aviva Insurance Company of Canada, to account for the fact that Sun Life deducted applicable income taxes from its payments to the appellant. [3] While no longer contesting the assignment of her benefits to the respondent’s insurer, the appellant submits that the trial judge’s order was contrary to the principles of natural justice and exceeded her jurisdiction because neither party sought the top up that she ordered. Moreover, the appellant argues, the trial judge erred in her interpretation of s. 267.8 of the Insurance Act . [4] The appellant asks that the trial judge’s top up order be set aside, that the respondent’s insurer repay all top up amounts to the appellant, plus interest, and that the respondent’s insurer be required to bear all costs necessary to address the tax and other implications of the assignment of the appellant’s benefits. [5] For the reasons that follow, I would allow the appeal and grant the requested relief. Background [6] The appellant sustained serious injuries and became totally disabled as a result of a motor vehicle accident involving the respondent. The jury determined the respondent was 90% liable for the accident. The appellant was found 10% contributorily negligent. On April 5, 2017 the jury awarded the appellant significant damages because of her injuries. With respect to her future loss of income claim, the head of damages relevant to this appeal, the appellant received an award of $540,000, net of a 10% reduction for the appellant’s contributory negligence. [7] The appellant’s injuries triggered coverage for long-term disability income continuation benefits from Sun Life, her employer’s group benefits insurer. Both the appellant and her employer had contributed to the plan. As a result, Sun Life deducted and remitted income taxes from its payments to the appellant under the plan and provided to the appellant an annual T4A slip for the gross benefit. In the period between the April 5, 2017 judgment and the payment of the judgment damages by the respondent’s insurer on November 14, 2019 [1] , the appellant received from Sun Life net after-tax payments totalling $104,162.34. [8] Following the jury’s verdict, the respondent brought a motion under s. 267.8(12) of the Insurance Act to require the appellant to assign to the respondent’s insurer from the date of the judgment the appellant’s rights to the Sun Life benefits. The relevant provisions of s. 267.8(12) of the Insurance Act are 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 , [emphasis added] (ii) for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan, (b) the plaintiff who recovered damages in the action co-operate with the defendants or the defendants’ insurers in any claim or proceeding brought by the defendants or the defendants’ insurers in respect of a payment assigned pursuant to clause (a). [9] The trial judge considered how the assignment of “all rights in respect of all payments to which the plaintiff … is entitled” under s. 267.8(12)(a) should apply to the appellant’s income continuation plan. She found that s. 267.8(12)(a) called for the assignment of the gross amount of the Sun Life benefits, and not the net after-tax payments. She rejected the appellant’s submission that a ruling from the Canada Revenue Agency (“CRA”) should be obtained to determine if the appellant’s tax liability and Sun Life’s tax withholding obligation would change once the rights to the payments under the plan were assigned to the respondent’s insurer. She found that Sun Life’s obligation to withhold income tax was irrelevant to the appellant’s right to receive the gross amount of the payments. [10] Having concluded that the respondent’s insurer was entitled to receive the gross benefit under the appellant’s income continuation plan, the trial judge considered two methods of structuring the assignment. Under the first approach, Sun Life would make payments directly to the respondent’s insurer while deducting taxes at source. The appellant would then “top up” the payments to compensate for the source deductions. The assignment would remain in place until the earlier of the appellant reaching the age of 65 and the respondent’s insurer recovering the amount it had paid in tort damages for future loss of income. From the trial judge’s perspective, this arrangement served to insulate the respondent’s insurer from the appellant’s personal tax situation: the appellant would be responsible for any shortfall arising from the deductions at source and she would receive the benefit of any tax refunds resulting from overpayment without depriving the respondent of its right to receive the full benefit. [11] Under the second approach, the appellant would not top up the payments, and the respondent’s insurer would receive the net payments from Sun Life. In both cases, the appellant would receive the benefit of any tax refund and bear responsibility for any shortfall. However, under the second approach, the respondent’s insurer would recoup the amount owing under the assignment more slowly. [12] The trial judge concluded that the appellant was required to top up the net payments from the date of the judgment that were assigned to the respondent’s insurer so that they would equal the gross payments to which the appellant was entitled under the Sun Life plan. [13] With respect to the amounts already paid by Sun Life under the income continuation plan, the trial judge ordered the appellant to disclose to Aviva the gross amount of her entitlement since the jury’s verdict. This amount, later determined to be $124,951.05, was deducted from the $540,000 income loss award in accordance with the trial judge’s top up order, despite the fact that the appellant had only received net payments of $104,162.34 from Sun Life. At the hearing of the appeal, counsel for the appellant indicated that the appellant has not made any further top up payments on the assigned payments. Issues [14] I would summarize the issues as follows: i. Was the trial judge’s top up order procedurally unfair and contrary to natural justice? ii. Did the trial judge err in her interpretation and application of s. 267.8 of the Insurance Act ? (1) Procedural Fairness [15] It is common ground that neither party requested that the trial judge make the top up order. Rather, the appellant submitted that the gross amount of the payments received from Sun Life should be credited against the amount assigned to Aviva, even though Aviva would receive only payment of the net benefit, and that, regardless, there should be a mechanism to address the potential income tax shortfall or overpayment by the appellant arising from the deduction of income tax at source. The respondent sought an assignment to its insurer of the appellant’s rights to the net after-tax benefits received from Sun Life from the date of judgment, with a provision for an accounting of any taxes refunded in the case of overpayment on source deductions. The trial judge did not request submissions from the parties on the issue of top up. [16] In my view, the trial judge resolved the rights of the parties, imposed a burden on the appellant, and provided a remedy to the respondent, “on a theory never pleaded and with respect to which battle was never joined”: Rodaro v. Royal Bank of Canada (2002) , 59 O.R. (3d) 74 (C.A.), at para. 63. Accordingly, the order must be set aside. [17] Anticipating this outcome, the parties requested that this court look afresh at the top up question and the underlying issue of the parties’ respective rights and obligations under the statutory assignment, rather than remitting it to the trial judge for a rehearing. I am of the view that the record and the parties’ submissions are sufficient to permit such a determination. I turn now to that analysis. (2) Section 267.8 of the Insurance Act (a) The parties’ positions [18] The appellant submits that the trial judge’s top up order represents an erroneous interpretation of the trust and assignment provisions of s. 267.8 of the Insurance Act . Under the trust provisions, the appellant can only hold in trust and pay over to the respondent’s insurer the payments she actually received. Under the statutory assignment, the respondent’s insurer, as assignee of the rights to the taxable collateral benefits, must assume the tax consequences of the benefits along with the benefits themselves. Otherwise, the appellant, as tort victim, is left in a worse net position than a tort victim with no collateral benefits, and the respondent’s insurer receives a windfall. [19] The respondent says that even if the trial judge erred, her top up order is reasonable and causes no prejudice to the appellant. It also best serves the principle of finality that benefits both parties because there will be no need for an ongoing accounting or other administrative reconciliation. Relying on Kant v. The Queen , [2001] 2 C.T.C. 2703 (T.C.C.), the respondent submits that the appellant may not be required to pay taxes on the benefits after the assignment since “they are not taxable in [her] hands when assigned because she derives no benefit from them”. According to the respondent, the appellant can seek a refund of the taxes remitted by Sun Life. (b) Analysis [20] It is my view that the trial judge misinterpreted ss. 267.8(9), (10), and (12)(a)(ii) of the Insurance Act and applied the trust and assignment provisions in a manner contrary to the plain meaning of the legislative text and its purposes. She also erred in failing to take into account Sun Life’s withholding and remittance of income tax as a statutory trust and its effect on the appellant’s rights under the plan. [21] As this court indicated in Bapoo v. Co-Operators General Insurance Co. (1997), 154 D.L.R. (4th) 385 (Ont. C.A.), leave to appeal refused, [1998] S.C.C.A. No. 62, at p. 389, the interpretative framework to be applied is as follows: The modern approach to statutory interpretation calls on courts to interpret a legislative provision in its total context. The court's interpretation should comply with the legislative text, promote the legislative purpose and produce a reasonable and just meaning . Professor Sullivan described the modern approach in the following passage in Driedger on the Construction of Statutes : There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids . In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just . [Emphasis added; Citations omitted.] [22] It is well established that the legislative purpose of s. 267.8 is to promote fair compensation to injured plaintiffs and prevent double recovery. As this court observed in Cadieux v. Cloutier, 2018 ONCA 903, 429 D.L.R. (4th) 468, leave to appeal refused [2019] S.C.C.A. No. 63 , at para. 17: “ Section 267.8 of the Insurance Act contains provisions designed to address [the overlap between tort damages and collateral benefits] and to prevent double recovery. It reflects the principle that victims should be fairly compensated, but not over-compensated.” See also: Carroll v. McEwen , 2018 ONCA 902, 429 D.L.R. (4th) 443, at para. 38; Cobb v. Long Estate, 2017 ONCA 717, at para. 52; El-Khodr v. Lackie , 2017 ONCA 716, 416 D.L.R. (4th) 189, at para. 33, leave to appeal refused, [2017] S.C.C.A. No. 461. As I shall explain, I conclude that the effect of the trial judge’s order is to leave the appellant undercompensated and in a worse position than if she had not had collateral benefits from Sun Life. (i) The trust provisions under ss. 267.8(9) and (10) [23] While the trial judge did not expressly address the application of the trust provisions under ss. 267.8(9) and (10) to the amounts received by the appellant pre-assignment, the effect of her order requiring the deduction of the gross amount of the payments to the appellant under the Sun Life plan since the date of judgment on April 5, 2017 resulted in the deduction of more than the amount of the payments actually received and held in trust by the appellant post trial and pre-assignment. This effect runs contrary to the provisions of ss. 267.8(9) and (10). [24] Under s. 267.8(9)(ii), prior to any assignment under ss. 267.8(12)(a)(ii), a successful plaintiff must hold “ payments in respect of the incident that the plaintiff receives after the trial of the action for income loss or loss of earning capacity … under an income continuation benefit plan” in trust (emphasis added). Subsection 267.8(10) requires the plaintiff who holds money in trust under subsection (9) to “pay the money to the persons from whom damages were recovered in the action, in the proportions that those persons paid the damages”. [25] Subsections 267.8(9) and (10) impose a statutory trust on the payments that the plaintiff actually receives for the benefit of the defendant or the defendant’s insurer. These provisions reflect basic trust principles: a trustee is only chargeable for the trust property that he or she actually holds or controls; and the trust property does not form part of the trustee’s property but is held for the beneficiary of the statutory trust: Lewin on Trusts , 19th ed. (London: Sweet & Maxwell, 2015) at pp. 2-4 and 285. See also In Re Scott , [1948] SASR 193, at p. 196. Under ss. 267.8(9) and (10), the plaintiff as trustee holds the monies received in trust for the defendant or the defendant’s insurer who pays the judgment damages. [26] The trust property in the present case consisted of the net after-tax payments that the appellant received pre-assignment from Sun Life from the date of the judgment in the amount of $104,162.34. The appellant, as trustee, was only required to hold in trust and then pay to the respondent’s insurer these actual payments from Sun Life, which were net of tax. Contrary to the provisions of ss. 267.8(9) and (10), the trial judge’s order erroneously inflated that amount to $124,951.05, representing the gross pre-tax amount, which had the effect of reducing the appellant’s compensation by $20,788.71 once the trust funds were set off against the judgment damages. The appellant was never required to hold this amount in trust and it should be repaid. (ii) The assignment provisions under s. 267.8(12)(a)(ii) [27] Similar reasoning led the trial judge into error with respect to the assignment provisions under s. 267.8(12)(a)(ii) of the Insurance Act . As noted, this section permits a defendant to seek the assignment to its insurer of “all rights in respect of all payments to which the plaintiff who recovered damages is entitled in respect of the incident … under an income continuation benefit plan”. In my view, the trial judge conflated the respondent’s insurer’s entitlement to the rights to the plan benefits with the mechanism of a specific mode of payment, namely an assignment, and therefore failed to apply the assignment provisions under s. 267.8(12)(a)(ii) in a manner consistent with the trust provisions under s. 267.8(9) and (10). [28] The trial judge correctly recognized at para. 16 of her reasons that “the assignment is of “all rights in respect of all payments” and that “[t]he assignment is of more than the payments themselves”. However, she failed to recognize that the respondent’s insurer, as assignee, steps into the shoes of the appellant and acquires the entitlement to the rights to the appellant’s benefits subject to all the equities and obligations existing between the appellant and Sun Life under the plan: Frederick v. Aviation & Gen. Ins. Co. , [1966] O.J. No. 1064 (C.A.). Instead, the trial judge effectively concluded that the respondent’s insurer was entitled to collect the appellant’s gross benefits as if they were not taxable or as if the appellant had elected to take the entire taxable sum in hand. [29] In my view, the language of s. 267.8(12) does no more than clarify the mechanism of the assignment of the appellant’s rights to the payments within the scheme of s. 267.8. This means that by virtue and for the term of the assignment, the respondent’s insurer has all the appellant’s rights and is subject to all the provisions under the plan, including, subject to the plan [2] , the ability to deal directly with Sun Life and to contest the deduction of income taxes from the payments. But, while s. 267.8(12)(a) refers to “all rights in respect of all payments to which the plaintiff who recovered damages is entitled ” rather than “payments received by the plaintiff”, as was the case in Bapoo , it does not entitle the respondent’s insurer to receive payments greater than those the appellant receives. Subsection 267.8(12) does not refer to payments “received”, because the focus of this provision is not on the entitlement to payments , but rather on the broader entitlement to the plaintiff’s underlying rights , which includes a right to payment, among others. (iii) The trust and assignment provisions are complementary mechanisms [30] The trial judge’s approach fails to take into account the complementary nature of the trust and assignment provisions in the context of s. 267.8 as a whole which, as earlier noted, is designed to ensure fair compensation to the injured plaintiff: Cadieux , at para. 111. [31] First, the trial judge’s approach would introduce a discrepancy between the provisions of ss. 267.8(9) and (10), and (12) of the Insurance Act , which are intended to be complementary. As earlier noted, the modern rules of statutory interpretation require “the words of the statute to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the enacting legislative body”: Cadieux , at para. 109, citing Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21. [32] Subsections 267.8(9), (10), and (12) provide for two different mechanisms that work together to achieve the same underlying aim of providing compensation without over-compensation: Cadieux , at para. 24; Carroll , at para. 38; El-Khodr , at para. 33. As discussed above, the plain meaning of s. 267.8(9) is that a plaintiff is required to hold monies actually received in trust. Here, prior to any assignment to the respondent’s insurer under s. 267.8(12)(a)(ii), the appellant was required to hold in trust the actual net after-tax payments from Sun Life as she received them. It would not make common sense for the assignment to apply to gross pre-tax amounts if the trust does not. This would place the appellant in a different and worse position simply because the mechanism of assignment was engaged as opposed to the mechanism of a trust. [33] Second, and similarly, it would not make common sense for there to be a different meaning of the word “payments” in each of ss. 267.8(9), (10) and (12). Reading the provisions harmoniously, the “grammatical and ordinary sense” of the word “payments” is the same in the trust and assignment provisions under s. 267.8(9), (10), and (12). As noted, the “payments” referred to in ss. 267.8(9) and (10) are the payments actually received and held in trust by the appellant. In this case, from the date of the judgment, this amounted to $104,162.34 in payments that the appellant actually received. The word “payments” in s. 267.8(12) must refer to the same payments but to be received under the mechanism of an assignment. (iv) Effect of Sun Life’s statutory obligations [34] The trial judge’s errors in her interpretation and application of the trust and assignment provisions led her to ignore the effect of Sun Life’s withholding and remittance of income taxes to the CRA from the plan payments pursuant to its statutory obligations. Again, as the appellant’s assignee, the respondent’s insurer has all the same rights as against Sun Life as the appellant, and Sun Life has all the same defences. These defences may include any statutory obligation on the part of Sun Life to withhold and remit taxes to the CRA from the plan payments. [35] The respondent argues that, post-assignment, Sun Life is no longer required to withhold and remit taxes because the appellant no longer receives the benefit of the plan payments; however, as I explain in para. 38 below, this is by no means certain absent a court order or CRA ruling. Moreover, it is common ground that pre-assignment, Sun Life was obliged under the provisions of the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.), to deduct and remit taxes from payments made directly to the appellant for her benefit under Sun Life’s income continuation plan. Further, post-assignment, Sun Life intends to continue withholding and remitting income taxes regardless of whether the payments are issued directly to the appellant or to the respondent’s insurer, until otherwise exempted by court order or CRA ruling. [36] The parties did not reference the provisions of the Income Tax Act that give rise to Sun Life’s statutory obligations to withhold and remit taxes. Presumably, the income from the plan is taxable in the hands of the appellant under s. 6(1)(f) of the Income Tax Act because both the appellant and her employer contributed to the plan: See also Pugh v. Canada , [2000] T.C.J. No. 585, at para. 9; Bouchard v. Canada , 2008 TCC 408, at para. 14. If that is the case, then the income from Sun Life under the income continuation plan would fall under the definition of “salary or wages” at in s. 248. Under s. 153 of the Income Tax Act , “Every person paying at any time in a taxation year (a) salary, wages or other remuneration … shall deduct or withhold from the payment” the payee’s tax. This is no mere “mechanical exercise” as the trial judge stated. Amounts deducted but unremitted by any person are deemed to be held “separate and apart from the property of the person” and “in trust for Her Majesty and for payment to Her Majesty” pursuant to s. 227(4) of the Act. [37] Regardless if its position is correct, the fact that Sun Life purports to withhold and remit income taxes pursuant to a statutory obligation to the CRA means that those monies are imposed with a statutory trust and therefore do not form part of the payments made under the plan. Even if the respondent prevails and Sun Life is no longer required to withhold and remit taxes, this does not alter the nature and effect of its present withholdings and remittances as statutory trust funds. In consequence, so long as Sun Life withholds and remits taxes pursuant to the statutory trust provisions of the Income Tax Act , Aviva’s assigned rights are to the net after-tax payments. [38] I do not accept the respondent’s submission that the trial judge’s order causes no prejudice to the appellant because she can simply apply for a tax refund and be in no worse position. First, it is by no means certain that the CRA would agree that the appellant is entitled to a refund of the taxes remitted by Sun Life. It is dependent on a whole host of variables, including the appellant’s personal tax circumstances about which there is no evidence. Second, the appellant would likely be required to incur considerable expense to ascertain whether the CRA accepts this position. This additional financial burden is contrary to s. 267.8 of the Insurance Act since it undermines the purpose of full compensation for the appellant. [39] The respondent obtained an assignment to its insurer of the appellant’s rights to future collateral benefits under the Sun Life plan from the date of judgment. If it disputes the deduction of income tax at source, then the respondent’s insurer, having stepped into the appellant’s shoes through the assignment, must take the necessary steps and incur the necessary expense to deal with that issue. For the term of the assignment, the appellant has assigned her rights with respect to those payments. While s. 267.8(12)(b) of the Insurance Act requires her to cooperate with the respondent’s insurer, it is the respondent’s insurer, as assignee, that must direct what is to be done in relation to the plan benefits. [40] The respondent and its insurer cannot complain of its situation. If they had acceded to the appellant’s request to seek a ruling from the CRA on the tax issue, the issues of quantum and liability for taxes following the assignment could have been ascertained. As it presently stands, the respondent’s insurer is only entitled to receive what Sun Life pays. It would be patently unfair to require the appellant to pay for the very step that she submitted was necessary before the trial judge made her assignment order. Having taken the benefits of the assignment, the respondent’s insurer must undertake the concomitant burdens. Conclusion [41] The trial judge’s interpretation leads to an unfair result. It imposes a financial burden on the appellant that she would not have incurred if she did not have collateral benefits. This runs counter to the principle of full compensation. The statutory assignment of her rights under the Sun Life plan means that for the term of the assignment the appellant no longer receives any benefit under the plan and should be relieved of any financial burden in respect of it. [42] Accordingly, the correct interpretation of s. 267(12)(a)(ii) of the Insurance Act is that the assignment of the appellant’s rights under the plan means that the respondent’s insurer is entitled to a credit for the actual payments that the appellant receives under the plan. As matters now stand, this means net of the taxes withheld by Sun Life. The respondent’s insurer is entitled to take whatever steps are necessary, at its own expense and with the appellant’s co-operation, as required under s. 267(12)(b), to deal with the issue of the tax withholdings with Sun Life and the CRA. Disposition [43] In my view, the fairest order that is also in keeping with the purposes of s. 267.8 of the Insurance Act is to amend the trial judge’s order to provide for the assignment from the date of judgment of the appellant’s rights in respect of all payments under the Sun Life plan to the respondent’s insurer, net of all income tax withholdings so long as Sun Life continues to withhold and remit income taxes to the CRA from the payments made under its plan, until the appellant reaches the age of 65 or the respondent’s insurer has been fully reimbursed for its payment of the loss of income damages award, whichever event occurs earlier. We were advised that the appellant has not received any tax refunds or credits with respect to the withholdings since the date of judgment. As a result, so long as Sun Life continues to withhold taxes from the payments made under its plan , this order obviates the need for an annual accounting. [44] In the event the respondent’s insurer wishes to contest with Sun Life and/or the CRA the issue of tax withholdings during the period of the assignment, the respondent’s insurer shall pay all expenses associated with such request, including for the preparation of any necessary forms or returns by the appellant or her financial, legal or other advisors, and the payment of any disbursements or fees. This arrangement is consistent with the requirement in para. 4 of the order that the respondent’s insurer shall pay the appellant the reasonable costs that she incurred to preserve her rights to payment of the long-term disability benefits under the Sun Life plan. [45] Accordingly, I would allow the appeal. I would amend para. 2 of the October 28, 2019 order to reflect the disclosure of the gross and net payments for the benefits under the Sun Life plan, set aside paras. 3, 5 and 6 and insert in their place a new paragraph (or paragraphs as the case may be) in accordance with these reasons. I would order that the respondent’s insurer pay to the appellant the amount of $20,788.71 that was deducted from its payment of the appellant’s loss of income damages award. As earlier noted, according to the parties’ submissions, the appellant has not paid any top up amounts under paras. 5 and 6 of the October 28, 2019 order. If that is incorrect, the appellant is at liberty to provide evidence of such payments and this court’s order can provide for their repayment. I would amend para. 9 to provide that the appellant shall co-operate with the respondent’s insurer, at the latter’s expense, and that this co-operation shall also include participation in any process regarding Sun Life and/or the CRA concerning the income tax remitted by Sun Life. [46] The parties did not make submissions as to what should occur with respect to any set off against the judgment in the event that the taxes previously remitted by Sun Life were refunded by the CRA and/or in the event that Sun Life no longer withholds the taxes. Accordingly, if the parties cannot agree on the formulation of the additional terms to be inserted into the order in accordance with these reasons, or they require additional direction to address the set off issue or any other issue necessary for the implementation of this court’s decision, I would permit them to make brief written submissions of no more than two pages, plus a draft form of order, within seven days of the release of these reasons. [47] In accordance with the parties’ agreement, I would grant the appellant her partial indemnity costs of the appeal in the amount of $30,000, inclusive of disbursements and applicable taxes. [48] If the parties cannot agree on the disposition of the costs on the motion before the trial judge, I would allow them the opportunity to forward to the panel brief written submissions of no more than two pages, with a costs outline, within seven days of the release of these reasons. Released: April 16, 2021 “L.R.” “L.B. Roberts J.A.” “I agree. Gary Trotter J.A.” “I agree. Thorburn J.A.” [1] This delay appears to have resulted in part from the appeal of the decision on the merits, which this court dismissed on July 31, 2019 with reasons reported at 2019 ONCA 634, and from the fact that the payment of damages was put off until the quantum of the assignment could be ascertained in the post-trial ruling currently under appeal. That motion was only argued in October 2019. [2] We were not provided with a copy of the Sun Life plan. While a June 26, 2018 email from Sun Life to appellant’s counsel, noted by the motion judge at para. 21 of her reasons, refers vaguely to some mechanical difficulty with payment protocols, it does not indicate, in my view, any restriction against the respondent’s insurer dealing directly with Sun Life. As a result, I presume there is none.

COURT OF APPEAL FOR ONTARIO CITATION: North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited, 2021 ONCA 173 DATE:  20210317 DOCKET: M51329 & M51679 (C63933) Brown J.A. (Motions Judge) BETWEEN North Elgin Centre Inc. Applicant (Respondent) (Responding Party/Moving Party on cross-motion) and McDonald’s Restaurants of Canada Limited Respondent (Appellant) (Moving Party/Responding Party on cross-motion) Andrew Parley, Margaret Robbins and Sean Blakeley, for the moving party/appellant, McDonald’s Restaurants of Canada Limited Jeffrey E. Streisfield, for the moving party on the cross-motion/respondent, North Elgin Centre Inc. Heard: December 7 and 8, 2020 by video conference REASONS FOR DECISION I.        OVERVIEW [1] McDonald’s Restaurants of Canada Limited (“McDonald’s”) moves for an order declaring North Elgin Centre Inc. (“NEC”) in contempt of the order of a panel of this court dated January 29, 2018 (the “Order”). That Order was made in respect of the renewal of a lease between NEC, as landlord, and McDonald’s, as tenant, for commercial property located in Richmond Hill, Ontario (the “Lease”). [2] The Order declared that the Lease had been renewed for a first renewal term running from March 11, 2017 to March 10, 2027. Since the renewal term requires consent approval under s. 50(3)(f) of the Planning Act , R.S.O. 1990, c. P.13, [1] para. 3(b) of the Order states: McDonald’s shall, within 30 days of the date of the issuance of the reasons by the Court, bring an application for the consent required under s. 50(3)(f) of the Planning Act and the Respondent, [NEC], shall provide all reasonable cooperation to obtain that consent. [3] McDonald’s alleges that NEC has acted in ways that breached the Order’s requirement that it “provide all reasonable cooperation” to obtain the Planning Act consent. [4] NEC has brought a cross-motion that seeks declaratory relief in the nature of defences to the contempt motion, as well as directions regarding its obligations under para. 3(b) of the Order. [5] Contempt proceedings proceed in two stages: a liability phase, followed by a penalty phase: Carey v. Laiken , 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 18. These are my reasons for the liability phase of McDonald’s contempt motion. [6] As I will explain below, I dismiss McDonald’s motion. Given the basis for my conclusion that NEC is not in contempt of the Order, it is not necessary to decide the issues raised by NEC’s cross-motion, so I dismiss that motion. II.       JURISDICTION [7] McDonald’s initially sought to bring its contempt motion before the panel that made the Order. The panel invited submissions from the parties on the appropriate procedure to hear the contempt motion. NEC’s submissions disclosed that it intended to bring a cross-motion seeking directions as to whether the Lease was void because Planning Act consent was not obtained before the expiry of 21 years or, alternatively, directions about what NEC could “do or not do having regard to paragraph 3(b) of the Court’s Order.” [8] The panel advised that a settlement conference would take place before Pardu J.A., which occurred on June 10, 2020. No settlement was reached. By order dated June 19, 2020, Pardu J.A. gave directions regarding the hearing of the motions (the “Directions Order”). [9] The Directions Order provided that “the motion for contempt and a motion for directions and for declaratory relief, if brought by North Elgin, be heard together by a single judge of the Court of Appeal.” However, “[t]his is without prejudice to the right of the judge hearing both motions to determine whether the court has jurisdiction to give the declaratory relief sought.” [10] Neither party objects to a single judge of this court hearing the motions. [11] Although the parties were not able to locate any jurisprudence of this court on the issue of the jurisdiction of a single judge to hear a contempt motion to enforce a panel order, [2] I am satisfied that the combined operation of the Courts of Justice Act , R.S.O. 1990, c. C.43 (“ CJA ”), and the Rules of Civil Procedure provides such jurisdiction. [12] The Rules of Civil Procedure apply to all civil proceedings in the Court of Appeal, subject to a few exceptions which do not apply to these motions: r. 1.02(1). Rule 60.11(1) requires that a contempt order to enforce an order requiring a person to do an act must be obtained “on motion to a judge in the proceeding in which the order to be enforced was made.” Where the order to be enforced is one made by the Court of Appeal, a contempt motion therefore must be brought in the Court of Appeal. [13] Section 7(2) of the CJA provides that a motion in the Court of Appeal shall be heard and determined by one judge, subject to the exceptions enumerated in s. 7(3), none of which include a contempt motion. I therefore conclude that a single judge of this court has the jurisdiction to hear a contempt motion to enforce an order made by a panel of the court. III.      BACKGROUND FACTS A. The lease renewal dispute [14] NEC owns a parcel of land at the north-east corner of Yonge Street and Bernard Avenue on which it operates a shopping plaza (the “Property”). Under the Lease that commenced March 11, 1997, NEC leases part of the Property to McDonald’s, which operates a restaurant on the demised premises. [15] The initial term of the Lease was for 20 years, expiring on March 10, 2017, with McDonald’s having options to extend the term for two additional consecutive terms of ten years each. [3] [16] The Property is located within a planning intensification area, known as a Key Development Area (“KDA”), in the 2010 Richmond Hill Official Plan. In 2016, the Town of Richmond Hill (the “Town”) initiated a process to prepare a secondary plan and zoning by-law for the KDA. As part of that process, NEC provided Town staff with a concept plan and parking strategy for the future development of the Property. The concept plan contemplates a high-density, mixed use, transit supportive development on the Property and shows that eventually a residential tower may be located on the site presently occupied by the McDonald’s restaurant. In late 2017, NEC and other area landowners appealed the secondary plan and zoning by-law to the Local Planning Appeal Tribunal. [17] Section 19.10 of the Lease provides that it is subject to the Planning Act . As noted, s. 50(3)(f) of that Act provides, in part, that no person shall enter into any agreement that has the effect of granting the use of or right in land “directly or by entitlement to renewal for a period of twenty-one years or more unless … (f) a consent is given to convey, mortgage or charge the land, or grant, assign or exercise a power of appointment in respect of the land or enter into an agreement in respect of the land.” Section 19.10 of the Lease places the obligation on the landlord, NEC, to seek any Planning Act consent. [18] In 2016, a dispute arose over McDonald’s exercise of its first right to renew the term of the Lease for an additional 10 years. The dispute went to court, where the application judge found that the Lease had come to an end in March 2017 as McDonald’s had failed to comply with the renewal provision: 2017 ONSC 3306, 87 R.P.R. (5th) 303. [19] In January 2018, this court allowed McDonald’s appeal, declaring the Lease had been renewed for the first 10-year renewal term and referring the rent dispute for the renewal term to arbitration: 2018 ONCA 71, 87 R.P.R. (5th) 315, at para. 13. This court then dealt, at para. 14, with the need to obtain consent under the Planning Act for the first renewal term: With regard to McDonald’s claim for an order requiring North Elgin to specifically perform its obligation to obtain a Planning Act consent, we note that the end of the 21 st year under the Lease is fast approaching. We proposed to the parties in oral argument that the most sensible order would be one in which McDonald’s was permitted to immediately bring an application for the consent, and North Elgin would provide all reasonable cooperation to obtain the consent. The parties were agreeable to that order, and it shall issue. [20] Para. 3(b) of the Order set out the parties’ obligations in respect of the Planning Act consent application, including requiring NEC to “provide all reasonable cooperation to obtain that consent.” B. The Consent Application Events from February until October 2018 [21] McDonald’s retained Dentons Canada LLP to prepare and file the Planning Act consent application (the “Consent Application”). Dentons had the Consent Application signed by Mr. Renzo Belluz, a NEC representative, and filed it with the Town on February 1, 2018. [22] The Consent Application stated it sought “[c]onsent to a long term lease for a McDonald’s restaurant.” The covering letter for the application stated: The subject McDonald’s Restaurant has been operating on the property for some time. The implementing (subject) lease permits McDonald’s Restaurant to use part (approximately 1,200 sq. m.) of our client’s property (as depicted on the enclosed Site Plan), along with non-exclusive rights for access and parking over the remainder of the property (therefore, easement approvals are not required). The subject lease was for an initial term of twenty (20) years with a lease commencement date of March 1997. The lease has two (2) options to extend for ten (10) years each. It is these extensions that require Planning Act approval. As you are aware, the Planning Act requires leases of this length of time and nature (i.e. not part of a building and not the entire site) to be approved by the Committee of Adjustment when the term extends beyond twenty-one (21) years less a day. It is respectfully submitted that this application for consent to a lease supports the orderly development of the neighbourhood, is consistent with the Zoning By-law and complies with all of those matters that one must have regard to pursuant to Section 51(24) of the Planning Act , and that a plan of subdivision is not appropriate in this circumstance. [Emphasis added.] [23] Town staff responded on March 21, 2018 advising that: In order to understand the implications of the proposed consent, a Concept Plan (Section 5.2 of the OP) with a Planning Justification are required to demonstrate how the application conforms with the long term vision of the Town’s new Official Plan and recently adopted Yonge and Bernard Key Development Area Secondary Plan. [24] In March and April 2018 emails sent to Dentons, Town staff raised a concern about how a long-term lease might freeze development on the Property to single storey buildings, which would not be in keeping with the Official Plan. [25] In the summer of 2018 McDonald’s obtained from NEC copies of concept plans NEC had prepared in 2017 for the development of the entire Property. McDonald’s took the position that the 2017 concept plans did not make provision for a site for its restaurant and asked NEC to submit revised concept plans to the Town. [26] By letter dated August 9, 2018, NEC’s counsel confirmed that “NEC is not only consenting to your client's application for Planning Act approval but has even allowed the application to be made by your client in its name. As far as the Town of Richmond Hill (“the Municipality”) is concerned, NEC is 100% behind the application for the Planning Act approval.” The letter noted that: 3. The reason the Municipality requested a Planning Justification Report in support of your client’s application is because your client’s application conflicts with and creates issues arising from (i) the Zoning By-Law, (ii) the Official Plan and (iii) an Interim Control By-Law 4. Toward the bottom of page 4 of your letter, you are asking NEC to provide a “planning justification report outlining what is needed in order for the restaurant to comply.” However, it is strictly your client’s obligation to prepare and submit the Planning Justification Report supporting its application that has been requested by the Municipality 5. You also seem to believe that any NEC concept plans have affected your client’s application. That is manifestly incorrect. What is relevant are the Municipality’s Zoning By-Law, Official Plan and Interim Control By-Law. While there is a non-conforming use for the leased lands, your client must nevertheless satisfy the Municipality with respect to its application for the Planning Act approval sought. It is simply up to your client to once and for all proceed with and submit a Planning Justification Report which will hopefully persuade the Municipality to approve the application for Planning Act approval. [27] By October 2018 McDonald’s had retained Mr. Mike Crough, of the IBI Group, to assist with the Consent Application. In October 2018 the IBI Group discussed with the Town the requirements for a Planning Justification Report. The IBI Group prepared an initial draft report but, according to an affidavit sworn by Mr. Crough, there followed “a period of inactivity on the file” and the IBI Group did not communicate with McDonald’s “for several months”. November 2018 until June 2019: the rent arbitration [28] It appears that McDonald’s did not revive the work of the IBI Group until after the completion of the rental rate arbitration in June 2019. [29] The rental rate arbitration was held in February and May 2019, with an Award issued on June 26, 2019. In that proceeding, McDonald’s obtained the production of the lease with one other tenant at the shopping plaza. NEC initially sought to appeal the Award but abandoned its application to do so. June through August 2019: McDonald’s Planning Justification Report [30] In June 2019, McDonald’s asked NEC to provide copies of current leases for other tenants in the shopping plaza so they could be used in the Consent Application. Extensive correspondence ensued between counsel for the parties, in which McDonald’s sought certain information from NEC that it needed to prepare a Planning Justification Report and in which NEC, in turn, sought access to the entire draft report. I need not delve into the details of the back-and-forth for present purposes. Suffice it to say that on September 10, 2019 McDonald’s filed with the Town a Planning Justification Report prepared by the IBI Group (the “IBI Report”). September through November 2019: Town staff’s response to the IBI Report [31] By email dated September 20, 2019, Town staff informed counsel for the parties that: This is to advise that staff has reviewed the [IBI Report] and is prepared to concur with the conclusions and recommendations contained therein, provided the owner confirms in writing that he is aware of both the proposed lease and the pending development proposal to permit high density residential development on the subject lands. [32] McDonald’s immediately sought from NEC the written confirmation asked for by the Town. Confirmation from NEC was not forthcoming, for reasons set out in NEC counsel’s October 2, 2019 email to McDonald’s: The IBI report filed by McDonald's in support of the consent application (the September 2019 report) contains inaccurate statements (opinions) regarding the future development potential and timing of the NEC lands – which are acknowledged to be within a KDA and MTSA. There appear to be at least two issues – (1) the temporal impact of a consent and (2) the spatial extent of any consent on the NEC lands. 1. The lease was renewed for a 10 year term (not up to 18 years and 4 months). This was not disclosed in the IBI report, and if disclosed may well support a consent limited to a 10 year term - which would expire in 2027. 2. In any event, the lease contains a no build zone clause (lease par 22.03 and schedule E4) - which consists of the entire NEC site. This clause (and its impact) was not disclosed or discussed in the IBI report, nor made known to the city planner or planning department who now request an acknowledgement letter from NEC. (Of course, the City knows that there is a Secondary Plan and Zoning Bylaw before LPAT for approval). NEC does not wish to be a party to an application that potentially misrepresents information to the decision making tribunal (the committee of adjustment). The question therefore is how we address these matters going forward – which is why a meeting has been requested in advance of a consideration to returning to the court for directions. I am available on Friday but prefer Monday Oct 7 in the AM. Please confirm. [Emphasis added.] [33] Further correspondence ensued, including NEC’s advice that it intended to meet with Town staff. The IBI Group wrote to the Town and provided a copy of the Lease. That resulted in Town staff’s November 1, 2019 email to the parties that stated, in part: In the interim, staff has carefully reviewed your e-mail below and are therefore satisfied the Owner is aware of both the proposed lease and the pending development proposal to permit high density residential development on the its land holdings. Given the above, we no longer believe a meeting is necessary and are prepared to move forward with the application for consent. Please advise if you concur. [34] Then, on November 8, 2019, Town staff further advised: Consent application B012/18 has been placed into our priority queue for the January 2020 circulation. Our internal meeting takes place on December 10, 2019 and applicants will be notified by email by the end of the week if they have been scheduled. Please open the acknowledgement letter contained in that email to advise you when signs are available for pick-up and the date staff reports will be ready. December 2019: the MPlan Report [35] On December 6, 2019, a few days prior to Town staff’s scheduled internal meeting, NEC filed a report prepared by MPlan Inc. “as NEC’s input” on the Consent Application. [36] The MPlan Report commented on the Consent Application and the IBI Group Report. The MPlan Report made the following recommendations concerning the consent application: In order for the proposed Consent Application to be supportable, the following CONDITIONS OF APPROVAL are necessary and reasonable: 1. The Consent shall be limited to 8 years, being the remaining portion of the renewal term. The owner or McDonalds may apply for a further Consent should McDonald’s seek to renew the lease for the 2 nd renewal term. Reason: The Lease was only renewed for the 1 st renewal term. 2. The Consent shall apply to the area of land shown on Appendix B. Reason: Appendix B ensures that the subject lands can be redeveloped in phases, if necessary, in accordance with the Provincial, Regional and Municipal mandated intensification policies including provision of more affordable housing options including purpose built rental units, while providing for McDonald’s continued use of the severed lands for the remainder of the renewal term. 3. The consent approval does not apply to, and no sanction is given to, Section 22.03 and Schedule E-4 to the Lease and to Sections 22.01, 22.02 and 22.04 of the Lease. Reason: The No Build Zone provision and related sections sterilize the NEC property and therefore do not meet the Planning Act requirements referred to above. The condition is intended to ensure that consent to the 1 st renewal term does not freeze development on the retained lands and removes any restriction that would otherwise prevent development from occurring in a phases, with the south west corner of the property potentially be redeveloped last. [Emphasis added.] [37] In general terms, ss. 22.01 to 22.04 of the Lease allow McDonald’s, and its customers, the right to use the parking areas and other outdoor common areas of the shopping plaza and prohibit NEC from building on any part of the common areas shown with hatch marks on Schedule “E-4” to the Lease. The hatched area constitutes a significant portion of NEC’s Property. [38] In response to the MPlan Report, on December 12, 2019 Town staff advised that the Consent Application “has been deferred until such a time that it has been determined what the actual request is and the owner is satisfied.” [39] On December 17, 2019, the IBI Group wrote to the Town stating, in part: I do not agree with the conditions or modifications proposed in the North Elgin Report. Specifically, I do not agree with the proposal to reduce the time period nor the expanded spatial area proposed. [40] In January 2020, Town staff advised NEC’s counsel that: (i) the Committee of Adjustment considered the Consent Application to be incomplete, hence the deferral; and (ii) the Committee of Adjustment would require the Property’s owner to be satisfied with the Consent Application and would ensure that the Consent Application and submitted drawings were complete. C. THE MOTIONS [41] McDonald’s alleges that by filing the December 2019 MPlan Report NEC breached para. 3(b) of the Order, which requires NEC to provide “all reasonable cooperation” for the Consent Application. McDonald’s seeks a declaration that NEC is in contempt of the Order, the imposition of a fine on NEC, and an order requiring NEC to withdraw the MPlan Report from the Consent Application. [42] NEC’s cross-motion has two aspects. First, NEC seeks certain declarations that would operate, in effect, as defences to the contempt motion. Specifically, NEC seeks orders that the Lease came to an end in March 2018, 21 years after its commencement, with the result that the contempt motion is moot. Second, NEC seeks an order explaining what para. 3(b) of the Order requires it to do. IV.     CONTEMPT: THE GOVERNING PRINCIPLES [43] Civil contempt consists of the intentional doing of an act which is prohibited by a court order: Carey , at para. 26. As summarized in Carey , at paras. 32 to 35, civil contempt has three elements that must be established beyond a reasonable doubt: (i) the order alleged to have been breached must state clearly and unequivocally what should and should not be done. An order may be found to be unclear if: it is missing an essential detail about where, when or to whom it applies; it incorporates overly broad language; or external circumstances have obscured its meaning; (ii) the party alleged to have breached the order must have had actual knowledge of it. Actual knowledge may be inferred from the circumstances or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine; and (iii) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. All that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice : Carey , at para. 38. Contumacy – the intent to interfere with the administration of justice – is not an element of civil contempt and lack of contumacy is therefore not a defence: Carey , at para. 29. [44] With civil contempt, where there is no element of public defiance, the purpose of a contempt order is seen primarily as coercive rather than punitive, with the court attempting to obtain compliance with its order: United Nurses of Alberta v. Alberta (Attorney General) , [1992] 1 S.C.R. 901, at p. 943, per Sopinka J., in dissent; Chiang (Re) , 2009 ONCA 3, 93 O.R. (3d) 483, at para. 11. To that end, r. 60.11 of the Rules of Civil Procedure contemplates that a judge may set aside a finding of contempt if the contemnor subsequently complies with the order or otherwise purges his or her contempt or, in exceptional circumstances, where new facts or evidence have come to light after the contempt finding was made: Carey , at paras. 62, 64 and 66. [45] As the contempt power is discretionary, courts have consistently discouraged its routine use to obtain compliance with court orders. It should be used cautiously and with great restraint; it is regarded as an enforcement power of last, not first, resort. So, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt. As well, a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case: Carey , at paras. 36-37. [46] As a procedural matter, the party seeking a finding of contempt must clearly specify the act or omission that constitutes the contempt. The usual requirement is that the notice of motion set out the particulars of the alleged contempt: Bell ExpressVu Limited Partnership v. Corkery , 2009 ONCA 85, 94 O.R. (3d) 614, at paras. 17, 20 and 42-45; Rocca Dickson Andreis Inc. v. Umberto Andreis , 2013 ONSC 5508, 111 W.C.B. (2d) 587 (Div. Ct.), at para. 20; and Dare Foods (Biscuit Division) Ltd. v. Gill , [1973] 1 O.R. 637 (H.C.), at p. 639. V. APPLICATION OF THE GENERAL PRINCIPLES A. Framing the key issue in dispute [47] There is no dispute that NEC knew about and understood the Order. On his examination, Mr. Renzo Belluz, a principal of NEC and a practising planning lawyer, acknowledged that he had read the Order and understood what it required NEC to do. Further, the evidence clearly shows that NEC retained MPlan to prepare and file the report on its behalf. As a result, the filing of the MPlan Report with the Town certainly was an intentional act by NEC. As acknowledged in MPlan’s filing letter of December 6, 2019, the MPlan Report served “as NEC’s input” to the Consent Application, as well as a review of the IBI Report. [48] The key issue then boils down to whether the filing of the MPlan Report was a breach of para. 3(b) of the Order that required NEC to “provide all reasonable cooperation to obtain [the] consent” sought by McDonald’s from the Town pursuant to the Planning Act . [49] That is the issue I intend to address in the balance of these reasons. Before doing so, I wish to address two issues raised by the parties. [50] First, in its factum McDonald’s points to conduct by NEC other than the filing of the MPlan Report that it alleges disrupted the Consent Application process, such as delays by NEC in responding to communications by McDonald’s and NEC’s refusal to comply with simple requests from McDonald’s and the Town. Apart from the fact that McDonald’s did not plead in its notice of motion that such conduct amounted to acts of contempt, in my view the conduct did not materially affect the prosecution of the Consent Application. Notwithstanding McDonald’s own delay of close to 10 months in prosecuting the Consent Application, the reality was that by early November 2019 Town staff had advised McDonald’s that they were prepared to move forward with the Consent Application, which had been placed in the priority queue for circulation. [51] Second, on its part NEC asserts, by way of a defence to the contempt motion, that no Lease existed after March 2018, following the expiry of 21 years from the commencement of the Lease, with the result that the contempt motion is moot. However, as of December 6, 2019, when NEC filed the MPlan Report, the Consent Application was very much alive and before the Town’s Committee of Adjustment for consideration. The MPlan Report, which purported to provide the Committee of Adjustment with NEC’s “input” on the Consent Application, did not take the position that the Lease was at an end and therefore the Committee of Adjustment should or could not consider the Consent Application. Instead, NEC took the position that the Consent Application could be supported, subject to conditions set out in the MPlan Report. Given that position, I do not consider it necessary to determine what appears to be a defence constructed after-the-fact in response to the contempt motion and which is inconsistent with the position NEC took in the MPlan Report. [52] Accordingly, the balance of these reasons will focus on what I regard as the determinative issue, namely: whether NEC’s filing of the MPlan Report was a breach of para. 3(b) of the Order. [53] I will proceed with some caution. Although consideration of the Consent Application by the Committee of Adjustment has been deferred, the application remains alive. Consequently, I will decide the contempt motion but in a manner that recognizes the future conduct of the Consent Application lies within the jurisdiction of the Committee of Adjustment. B. The positions of the parties [54] McDonald’s takes the position that by filing the MPlan Report, NEC directly opposed the Consent Application. While the MPlan Report nominally supported the Consent Application, by including conditions for granting consent approval the report effectively opposed the relief sought by McDonald’s. [55] McDonald’s contends that by retaining MPlan to prepare and file the Report, NEC directly and deliberately hindered the Consent Application in breach of the Order or, alternatively, acted in a manner indifferent, reckless or willfully blind to conduct carried out in violation of the Order. [56] In response, NEC submits that the Order did not prohibit it from filing the MPlan Report. The IBI Report contained errors and material omissions that the MPlan Report sought to correct. As well, the MPlan Report contains planning reasons and explanations to the Committee of Adjustment as to how the Consent Application could be approved. C. Analysis The context in which to assess the allegations of contempt [57] Section 19.10 of the Lease stipulates that it is subject to the Planning Act . In considering the Consent Application, the Committee of Adjustment will consider the renewal of the Lease in the context of the various public planning instruments and policies in effect. Town staff pointed this out to McDonald’s in its March 21, 2018 communication that requested McDonald’s to file a concept plan, together with a Planning Justification Report. [58] Some 17 months after the Town had made its request, McDonald’s sought to satisfy it by filing the IBI Report. McDonald’s did not provide NEC with the report for review before submitting it; NEC received a copy of the report the day before its filing. The IBI Report went into great detail about the implications of the renewal of the Lease for planning policies contained in instruments issued by various levels of government. [59] Three aspects of the IBI Report are of particular relevance to the contempt motion: (i)      The Consent Application signed by NEC’s representative referred simply to a consent for “a long term lease for a McDonald’s Restaurant”. The February 1, 2018 covering letter from Dentons indicated that Planning Act approval was sought for the two ten-year options to extend under the Lease. The IBI Report indicated that consent was being sought for the two renewal periods. The IBI Report did not disclose that the Order only renewed the Lease for the first 10-year renewal term; (ii)     The IBI Report included a sketch, Figure 4-1, that outlined in red the demised premises that are subject to the proposed extension of the Lease. The report states that “the proposed extension of the existing lease area would occupy approximately 7% of the total site area, and does not include vehicular or pedestrian access points to external roads. The area covers the existing McDonald’s restaurant building, immediately adjacent walkway and landscape areas, the existing drive through lane, a small portion of the westerly internal drive aisle, and two accessible parking spaces.” This point is repeated in the report’s conclusion, which states that “[t]he spatial extent of the lease is based on existing and approved development on the subject lands, which permits the stand-alone McDonald’s restaurant”; and (iii)     The IBI Report emphasized in several places that the Consent Application and the Lease would not prevent growth and development from occurring on the NEC Property . For example, s. 5.1.1. of the IBI Report stated that “[t]he area of the lands not subject to the proposed extension of the existing lease provides sufficient space and frontage for phased or complete development/re-development in the future, should that occur.” [60] On its face, the filing of the MPlan Report was NEC’s attempt to draw to the Committee of Adjustment’s attention certain aspects of the Consent Application that it thought affected its interest as owner of the Property, of which the demised premises formed only a small part. The MPlan Report stated that it intended to provide NEC’s “input” to the Consent Application, comment on the IBI Report, and respond to requests by Town staff that it confirm it was aware of and supported the Consent Application. [61] The Committee of Adjustment has not denied the Consent Application; it has deferred considering the application until the parties provide it with requested clarification. [62] That is the context in which McDonald’s allegation that NEC has breached the Order’s requirement that NEC provide “all reasonable cooperation” must be assessed. [63] I shall now consider McDonald’s allegation that by filing the MPlan Report NEC breached para. 3(b) of the Order. First allegation: The MPlan Report opposed the Consent Application [64] McDonald’s alleges that the MPlan Report is explicitly contrary to the Consent Application because it does not support the application. I am not persuaded by that submission. A plain reading of the MPlan Report reveals that it supports a consent application, a point acknowledged on cross-examination by Mr. Crough from IBI. However, the MPlan Report proposed three conditions of approval. As I will explain in the next few paragraphs, I conclude that NEC had a legitimate interest in proposing the conditions of approval and by doing so did not breach its obligation to provide “all reasonable cooperation.” Second allegation: The MPlan Report improperly proposed a temporal limit on the consent [65] McDonald’s next alleges that the MPlan Report is explicitly contrary to the Consent Application because it proposed that consent approval be limited to the initial 10-year renewal period, not to the two 10-year lease renewal options contained in the Lease. While it is true that NEC’s proposal to limit consent approval is inconsistent with McDonald’s application to obtain approval for the two renewal periods, NEC’s proposal does not amount to a breach of para. 3(b) of the Order. Since the Order only declared that the Lease had been renewed for the first 10-year renewal term, NEC’s obligation to provide reasonable co-operation under para. 3(b) of the Order only extended to an application that sought approval for the first renewal period sanctioned by this court. Third allegation: The MPlan Report improperly proposed a geographical limit on the consent [66] McDonald’s alleges that the MPlan Report is explicitly contrary to the Consent Application by proposing that any consent provided “be geographically limited in a manner that conflicts with McDonald’s rights under the Lease.” This allegation has two parts. [67] The first part of the allegation asserts that one condition of approval proposed by the MPlan Report would modify the area to which any consent would apply to ensure that NEC could redevelop the rest of the Property in accordance with applicable planning intensification policies and plans. It is true that the MPlan Report proposed such a modification, but the modification was more spatially favourable to McDonald’s than that contained in the IBI Report and was consistent with the extent of the demised premises under the Lease. [68] Over the years, the Lease had undergone several amendments that expanded the size of the demised premises, in large part to enable McDonald’s to expand the restaurant’s drive-through. Under the Lease, the demised premises were L-shaped. The IBI Report proposed, in Figure 4-1, that the lands for which consent be given track the L-shape of the demised premises. [69] The MPlan Report proposed that consent approval be given to a larger, rectangular area of the Property that would include the L-shaped demised premises, together with additional parts of the Property. The MPlan Report contended that the larger, more regular shape of the area, to which consent approval should apply, would facilitate the orderly development of the balance of the NEC Property. To be clear, NEC was not proposing that consent approval be given to an area smaller than the demised premises under the Lease. Quite the opposite. NEC proposed that consent approval be given to an area larger than the demised premises. In those circumstances, I am not persuaded that such a proposal amounted to a failure to provide “all reasonable cooperation” required by para. 3(b) of the Order. [70] The second part of the allegation asserts that NEC’s proposal that consent approval should not apply to the No Build Zone provisions of the Lease was contrary to the Consent Application and a breach of the Order. Article XXII of the Lease deals with common areas. Sections 22.01 to 22.04 of the Lease allow McDonald’s, and its customers, the right to use the parking areas and other outdoor common areas of the shopping plaza and prohibit NEC from building on any part of the common areas shown with hatch marks on Schedule “E-4” to the Lease. The hatched area constitutes a significant portion of NEC’s Property. [71] The MPlan Report proposed that consent approval not apply to the No Build Zone Lease provisions as those provisions “sterilize the NEC property and therefore do not meet the Planning Act requirements referred to above. The condition is intended to ensure that consent to the 1 st renewal term does not freeze development on the retained lands and removes any restriction that would otherwise prevent development from occurring in a phases, with the south west corner of the property potentially be redeveloped last” [ sic ]. [72] McDonald’s alleges that this proposal in the MPlan Report is contrary to the Consent Application. I am not persuaded that it is. First, the Consent Application, the Denton’s covering letter, and the IBI Report did not make any mention of the Lease’s No Build Zone provisions. It is difficult to see how the MPlan Report’s proposal could be inconsistent with a matter that was not disclosed by McDonald’s in its Consent Application. Indeed, it is not clear from the record why the IBI Report failed to address the implications of the Consent Application for the Lease’s No Build Zone provisions. [73] Further, the MPlan Report’s proposal is consistent with the numerous representations made by the IBI Report that approval of the Consent Application would not prevent growth and development from occurring on the rest of the Property. [74] Finally, the Lease’s renewal terms are subject to the Planning Act . McDonald’s is not entitled as of right to consent approval under s. 50(3)(f) of the Planning Act . McDonald’s must demonstrate to the Committee of Adjustment that the consent it seeks is consistent with the planning principles relevant to the granting of such consent. Within two months of the filing of the Consent Application, Town staff clearly signalled the need for McDonald’s to provide a concept plan and planning justification, which in part would address the impact of any consent approval on the future development of the remainder of the Property.  NEC had a legitimate interest in ensuring that the Committee of Adjustment was aware of provisions of the Lease, such as the No Build Zone provisions, that could impact such future development. [75] Accordingly, I conclude that the three conditions of approval proposed in the MPlan Report reflected legitimate concerns of NEC, as owner of the remainder of the Property, about relevant issues that McDonald’s had not identified in its Consent Application. On their face the proposed conditions were not designed to defeat the Consent Application, but to support the granting of consent approval that took into account NEC’s legitimate concerns. As a result, I do not see the content of the MPlan Report, including its proposed conditions of approval, as constituting a breach by NEC of its obligation to provide “all reasonable cooperation” under the Order. Fourth allegation: The mere filing of the MPlan Report breached the Order [76] McDonald’s advances one final argument. It contends that the mere filing of the MPlan Report constituted an act of contempt because it resulted in the Committee of Adjustment deferring consideration of the Consent Application. I am not persuaded by this submission. Para. 3(b) of the Order did not sanction a process in which McDonald’s was permitted to proceed with its Consent Application on a kind of ex parte basis, with no ability for the landowner, NEC, to raise legitimate planning issues or point out inaccuracies in McDonald’s application. The evidence discloses that at various points NEC sought to provide some input into the application but was rebuffed by McDonald’s. In those circumstances, it is understandable that NEC would want to place before the Committee of Adjustment information it thought relevant to a complete consideration of the Consent Application and its approval on a basis that was fair to the legitimate interests of both tenant and landlord. In the circumstances, I do not regard NEC’s filing of the MPlan Report as a breach of para. 3(b) of the Order. D. Conclusion [77] By way of summary, I am not satisfied that McDonald’s has established, beyond a reasonable doubt, that NEC’s filing of the MPlan Report constituted a failure by NEC to provide “all reasonable cooperation” to obtain Planning Act consent. [78] Consequently, I dismiss McDonald’s contempt motion. VI. NEC’S CROSS-MOTION [79] I have treated the relief sought by NEC in paras. (a) through (d)(ii) of its notice of motion as forms of defence to McDonald’s contempt motion. As I have been able to decide the contempt motion on other grounds, it is not necessary to consider those requests for relief by NEC. [80] In para. (d)(iii) of its notice of motion NEC seeks further explanation of the meaning of para. 3(b) of the Order. As a single judge, I cannot vary the order made by a panel which, in effect, is the nature of NEC’s request. In any event, the Order is clear and speaks for itself; no further explanation is required. [81] Accordingly, I dismiss NEC’s motion. VII. DISPOSITION [82] For the reasons set out above, I dismiss the motions brought by McDonald’s and NEC. [83] Should any party decide to seek costs of the motions, it may file brief (no more than 7 pages) cost submissions within 10 days of the release of these reasons. The party against whom costs are sought may file brief (no more than 7 pages) responding submissions within 10 days thereafter. “David Brown J.A.” [1] Planning Act , s. 50(3): No person shall convey land by way of a deed or transfer, or grant, assign or exercise a power of appointment with respect to land, or mortgage or charge land, or enter into an agreement of sale and purchase of land or enter into any agreement that has the effect of granting the use of or right in land directly or by entitlement to renewal for a period of twenty-one years or more unless, (f)  a consent is given to convey, mortgage or charge the land, or grant, assign or exercise a power of appointment in respect of the land or enter into an agreement in respect of the land [2] The case law on this issue is sparse. In Peel Financial Holdings Ltd. v. Western Delta Lands Partnership , 2003 BCCA 551, [2003] B.C.W.L.D. 890, at paras. 11-17, a single judge of the British Columbia Court of Appeal relied on the provisions of the Court of Appeal Act , R.S.B.C. 1996, c. 77, to conclude that he had the jurisdiction to hear a contempt motion to enforce an order made by a single judge of the Court of Appeal. [3] Pursuant to the terms of the Lease and a 2015 Second Amending Agreement.

COURT OF APPEAL FOR ONTARIO CITATION: O'Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385 DATE: 20210607 DOCKET: C68215 Roberts, Zarnett and Sossin JJ.A. BETWEEN William O’Reilly Plaintiff (Respondent) and ClearMRI Solutions Ltd., ClearMRI Solutions Inc., Jeff Hassman, Jae Kim , Stefan Larson, David Stopak, Tornado Medical Systems , Inc., Arsen Hajian, Jeff Courtney and Gordon Cheung Defendants ( Appellants ) Ted Brook and Paul Macchione, for the appellants Tornado Medical Systems, Inc. and Jae Kim Jacqueline Horvat and Alexandra Chun, for the respondent Heard: January 29, 2021 by videoconference On appeal from the judgment of Honourable Justice Jane Ferguson of the Superior Court of Justice, dated February 11, 2020, with reasons reported at 2020 ONSC 938. Zarnett J.A.: i. INTRODUCTION [1] This appeal concerns the scope and application of two avenues of recourse that are potentially available when employment entitlements have not been honoured. [2] One avenue exists under the doctrine of common employer liability. This common law doctrine [1] recognizes that an employee may simultaneously have more than one employer. If an employer is a member of an interrelated corporate group, one or more other corporations in the group may also have liability for the employment obligations. However, and importantly, they will only have liability if, on the evidence assessed objectively, there was an intention to create an employer/employee relationship between the employee and those related corporations. [3] A second avenue exists under the provisions of s. 131 of Ontario’s Business Corporations Act , R.S.O. 1990, c. B.16 (“ OBCA ”). This section imposes liability on corporate directors, in favour of a corporate employee, for up to six months’ unpaid wages and up to twelve months’ vacation pay. That liability is subject to specific conditions. [4] The appellant, Tornado Medical Systems, Inc. (“Tornado”) stood at the top of a corporate group. It was the majority shareholder of ClearMRI Solutions Ltd. (“ClearMRI Canada”) which itself had a wholly owned subsidiary, ClearMRI Solutions, Inc. (“ClearMRI US”). [5] The respondent, William O’Reilly, served as the Chief Executive Officer (“CEO”) of ClearMRI Canada and ClearMRI US (together, “ClearMRI companies”). His written employment agreement was with ClearMRI US, but he reported to, and his performance goals were set by, the board of directors of ClearMRI Canada. [6] When his employment ended, Mr. O’Reilly was owed substantial sums for salary and other entitlements. He brought an action seeking recovery of all outstanding amounts from the ClearMRI companies and Tornado. While Mr. O’Reilly did not have a formal position or written agreement with Tornado, he alleged that it, along with the ClearMRI companies, were his common employers. The action also sought recovery from the directors of Tornado and ClearMRI Canada, including the appellant, Jae Kim (“Dr. Kim”), for six months’ unpaid wages and twelve months’ vacation pay under s. 131 of the OBCA . [7] Mr. O’Reilly obtained default judgment against the ClearMRI companies. He subsequently moved for summary judgment against the other defendants. His motion was successful. [8] Tornado appeals the judgment against it, arguing that the finding of the motion judge that it was liable to Mr. O’Reilly as a common employer is flawed. Tornado argues that the motion judge misconstrued the common employer doctrine, effectively finding it liable only because of its corporate affiliation to Mr. O’Reilly’s contractual employer. [9] Dr. Kim appeals the judgment finding him liable as a director of ClearMRI Canada. Dr. Kim contends that the motion judge improperly applied s. 131 of the OBCA to hold him liable without evidence that a condition to that liability – execution against ClearMRI Canada having been returned unsatisfied – had been met. [10] Tornado and Dr. Kim both argue that the motion judge further erred in determining the quantum of their respective liability. [11] I would allow the appeal by Tornado. The motion judge erred in her articulation and application of the common employer doctrine and thus made an extricable error of law in concluding that Tornado was a common employer. [12] I would dismiss Dr. Kim’s appeal, subject to one variation necessary to respect the OBCA’s conditions for s. 131 director liability. [13] Below, I set out my reasons for these conclusions. ii. BACKGROUND A. Tornado and the ClearMRI Companies [14] Tornado is an Ontario corporation. In 2010, it acquired licence rights to intellectual property that can be used to facilitate the refurbishment and upgrading of Magnetic Resonance Imaging (“MRI”) machines. [15] Tornado is the majority shareholder of ClearMRI Canada, which is also an Ontario corporation. ClearMRI Canada was formed in 2012 to develop a business of upgrading and refurbishing MRI machines. For this purpose, Tornado assigned, to ClearMRI Canada, its licence rights to the intellectual property. [16] In addition to the incidents of corporate control over ClearMRI Canada that flowed from its majority shareholding, Tornado had certain specified rights under a Unanimous Shareholder Agreement that related to ClearMRI Canada: Tornado’s consent was required for certain dividends, large capital expenditures, the sale of ClearMRI Canada’s business, any amalgamation with another corporation, or any winding-up, reorganization, or dissolution. Tornado’s consent rights did not, however, extend to changes in management of ClearMRI Canada or its subsidiaries, employment agreements, or dealing with loans from non-arms-length persons – the Unanimous Shareholder Agreement required only the approval of the board of ClearMRI Canada, or a committee of the board, for these matters. [2] [17] To some extent, the boards of directors of Tornado and ClearMRI Canada overlapped; ClearMRI Canada’s board consisted of five directors, two of whom were also directors of Tornado. Dr. Kim was a director of both Tornado and ClearMRI Canada. [18] ClearMRI US is a Delaware company, wholly owned by ClearMRI Canada. It was formed in May 2012 to obtain American regulatory approval of the ClearMRI technology and to develop the MRI upgrading and refurbishing business in the United States. B. Mr. O’Reilly’s Roles and Written Employment Agreement [19] Mr. O’Reilly served as CEO of ClearMRI Canada from approximately the time of its formation. He was also one of its directors. When ClearMRI US was formed, he also became its CEO and sole director. Mr. O’Reilly did not hold any formal position with Tornado. [20] On May 22, 2012, Mr. O’Reilly and ClearMRI US signed an agreement confirming the terms of his employment. The agreement named ClearMRI US as Mr. O’Reilly’s employer. The agreement specified that Mr. O’Reilly was to serve as its CEO and was to be paid an annual base salary of $153,000 USD in 2012, increasing to $210,000 USD in 2013. He was also entitled to benefits including paid vacation and to specific payments if he was terminated without notice or cause. He was also eligible to earn a performance bonus of $80,000 USD and to receive other compensation. [21] Although ClearMRI US was named in the written agreement as the employer, the motion judge found that Mr. O’Reilly was also employed by ClearMRI Canada and Tornado. Her reasons for doing so are discussed below. C. Deferral of Salary, Non-Payment of Employment Obligations, and the Termination of Mr. O’Reilly’s Employment [22] Cash flow problems inhibited the successful launch of the MRI upgrading and refurbishment business. Mr. O’Reilly took certain steps to overcome that problem. To assist with the required funding, he agreed to defer his full salary commencing in 2013 until ClearMRI Canada started to earn revenue; the deferral continued in 2014. The motion judge found that Mr. O’Reilly had not agreed to defer his salary indefinitely, only temporarily, and that he received assurances from ClearMRI Canada and Tornado that ClearMRI Canada was committed to bringing its product to market. I return to the arrangements for the deferral and the assurance in more detail below. [23] In December 2013, Mr. O’Reilly also made a $50,000 USD loan to ClearMRI Canada. To avoid the appearance of a conflict of interest, he resigned as a director and CEO of both ClearMRI Canada and ClearMRI US. However, the motion judge noted that in reality he continued in the CEO role. This loan was not repaid. [24] In April 2014, Mr. O’Reilly secured a regulatory clearance from the U.S. Food and Drug Administration. The motion judge found that this step entitled him to a performance bonus of $80,000 USD. However, the performance bonus was never paid. [25] By the spring of 2014, it was apparent that ClearMRI Canada was no longer committed to bringing their product to market. On August 6, 2014, Mr. O’Reilly took the position that he had been constructively dismissed. His lawyer demanded payment from ClearMRI Canada and ClearMRI US of $281,315 USD in unpaid salary, and of the $50,000 USD loan. D. The Action [26] In October 2014, Mr. O’Reilly commenced this action against ClearMRI Canada, ClearMRI US, Tornado, and individual directors of ClearMRI Canada and Tornado, including Dr. Kim. [27] The claims against the individuals were for six months’ wages and twelve months’ vacation pay under s. 131 of the OBCA . The corporations were each sued (as common employers) for all unpaid wages and employment entitlements. ClearMRI Canada and ClearMRI US were sued for the unpaid loan. [28] On September 2, 2015, Mr. O’Reilly obtained default judgment against ClearMRI Canada and ClearMRI US for deferred salary, vacation pay, the performance bonus, and the unpaid loan, totalling $381,103.84 USD, plus costs. [29] The default judgment was not satisfied, and Mr. O’Reilly moved for summary judgment against the remaining defendants. E. The Motion Judge’s Decision [30] The motion judge was satisfied that this was an appropriate case for summary judgment. [31] The motion judge described the common law doctrine of common employer liability as one that requires the court to “look past the immediate bilateral contractual relationship…and recognize that an employee may be employed by a number of different companies at the same time”. A group of companies identified as “concurrent employers” will have “joint and several liability with respect to the rights and entitlements of the employee”. The motion judge identified three factors that should be considered: the employment agreement itself; where the effective control over the employee resides; and whether there was common control between the different legal entities. [32] The motion judge then addressed whether ClearMRI Canada was a common employer of Mr. O’Reilly. She concluded that it was, noting that the issue was not really in dispute and there was already a judgment against it. She found that Mr. O’Reilly reported to the ClearMRI Canada board, which set his performance goals, and that, “[i]n practice, effective control over [Mr.] O’Reilly did reside with ClearMRI Canada”; she further remarked that ClearMRI Canada wholly owned ClearMRI US, and had incorporated it for a specific purpose. She was satisfied they “both had a single relationship with [Mr.] O’Reilly”. [33] The motion judge next considered the liability of the individuals who were directors of ClearMRI Canada, including Dr. Kim. She referred to the source of directors’ liability for wages, s. 131 of the OBCA , which provides, in relevant part, as follows: Director’s Liability to employees for wages (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. Limitation of liability (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.  2002, c. 24, Sched. B, s. 27 (1). Idem (3) Where execution referred to in clause (2) (b) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution.  R.S.O. 1990, c. B.16, s. 131 (3). [34] She found that the ClearMRI Canada directors were jointly and severally liable under s. 131 of the OBCA to Mr. O’Reilly for “six months of…unpaid wages and twelve months of…vacation pay, specifically $153,400 USD.” As Mr. O’Reilly was also a director, she found that he shared in that liability. [35] Next, the motion judge considered whether Tornado was a common employer using the three factors she identified. She stated that it was not determinative that there was no employment agreement with Tornado. She found that Tornado exercised “a sufficient amount of control” over Mr. O’Reilly, as both Tornado and ClearMRI Canada had accepted his offers to defer his salary and to loan funds to ClearMRI Canada, both had assured Mr. O’Reilly that ClearMRI Canada was committed to bringing its product to market, and both shared the business objectives that Mr. O’Reilly was employed to achieve. She found common control between the different legal entities because Tornado had incorporated ClearMRI Canada to develop a specific business; Tornado had a majority controlling shareholder interest; Tornado had consent rights under the Unanimous Shareholder Agreement; there was an overlap in directors; and when it came time to replace a director of ClearMRI Canada, Dr. Kim wished to discuss the replacement with Tornado. Accordingly, she found that Tornado was a common employer, jointly and severally liable for the employment related amounts of the default judgment – everything except the unpaid loan and interest on it. [36] Finally, she held that if Tornado did not satisfy the judgment against it, the Tornado directors individually named in the action would share in the liability of the ClearMRI companies’ directors for the six months’ wages and twelve months’ vacation pay. [3] She said that the judgment against the Tornado directors “is to remain in abeyance until and unless Tornado does not satisfy the judgment against it.” There was no similar statement regarding the judgment against the ClearMRI companies’ directors. [37] The formal judgment indicated that the parties could return to the Court for directions concerning the liability of the two Tornado directors if execution against Tornado was returned unsatisfied. No similar provision appeared in the judgment concerning the liability of the ClearMRI Canada directors, including Dr. Kim. iii. ANALYSIS A. Was Tornado Properly Found to be a Common Employer? The Arguments [38] Tornado argues that although the motion judge mentioned effective control over the employee as part of the common employer test, nothing that she referred to showed any effective control by Tornado over Mr. O’Reilly as an employee. Tornado submits that the motion judge effectively treated Tornado’s corporate relationship with the ClearMRI companies as rendering it liable, which is insufficient in law for a corporation to be liable for another’s obligations. [39] Tornado also argues that the motion judge gave no real consideration to the presence of a written employment agreement which specified Mr. O’Reilly’s employer, and to the absence of an employment agreement with Tornado. It submits that it was necessary to consider whether Mr. O’Reilly had a reasonable expectation that Tornado was his employer – the written employment agreement and Mr. O’Reilly’s senior role in the ClearMRI companies shows he could not have reasonably held such an expectation. [40] Tornado also argues that the common employer doctrine only applies to wrongful dismissal claims, and that claims for unpaid salary against a corporation related to the employer must be made under s. 4 of the Employment Standards Act , which was not invoked by Mr. O’Reilly. Further, it challenges how the motion judge arrived at the quantum of its liability. [41] Mr. O’Reilly argues that the motion judge made no reversible error in reaching the conclusion that Tornado was a common employer, in holding it liable for unfulfilled employment obligations, and in determining the quantum of that liability. [42] I begin by discussing the relationship between the concept of corporate separateness, under which corporations are not liable for debts and obligations of affiliated or subsidiary corporations, and the common employer doctrine, which may impose liability on related corporations. I also discuss the role of an employment agreement in that analysis. I then address why the common employer doctrine applies to claims beyond those for wrongful dismissal. Against that backdrop, I explain why I conclude that the motion judge erred in granting summary judgment based on her finding that Tornado was a common employer. In light of that conclusion, it is unnecessary to examine Tornado’s arguments about quantum. Corporate Separateness [43] A corporation is a distinct legal entity with the powers and privileges of a natural person: OBCA , s. 15. These powers and privileges include owning assets in its own right, carrying on its own business, and being responsible only for obligations it has itself incurred. [44] The fact that one corporation owns the shares of or is affiliated with another does not mean they have common responsibility for their debts, nor common ownership of their businesses or assets. A corporation’s business and assets are not, in law, the business or assets of its parent corporation: Yaiguaje v. Chevron Corporation , 2018 ONCA 472, 141 O.R. (3d) 1 at paras. 57-58, leave to appeal refused, [2018] S.C.C.A. No. 255; BCE Inc. v. 1976 Debentureholders , 2008 SCC 69, [2008] 3 S.C.R. 560 at para. 34. Similarly, a parent (shareholder) corporation is not liable, as such, for the debts and obligations of a subsidiary: OBCA , s. 9 [45] The fact that corporations are related and coordinate their activities does not, in and of itself, change this paradigm. Ontario law rejects a “group enterprise theory” under which related corporations that operate closely would, by that very fact, be considered to jointly own their businesses or be liable for each other’s obligations. Although the group might, from the standpoint of economics, appear as a unit or single enterprise, the legal reality of distinct corporations governs: Meditrust Healthcare Inc. v. Shoppers Drug Mart (2002), 61 O.R. (3d) 786 (C.A.) at paras. 29-31; Yaiguaje , at paras. 76-77. [46] Corporate separateness has exceptions – the court may pierce the corporate veil and hold a parent corporation liable for obligations nominally incurred by a subsidiary corporation that is a mere façade: in order to ignore the corporate separateness principle, the court must be satisfied that: (i) there is complete control of the subsidiary, such that the subsidiary is the “mere puppet” of the parent corporation; and (ii) the subsidiary was incorporated for a fraudulent or improper purpose or used by the parent as a shell for improper activity: Yaiguaje , at para. 66. [Citations omitted]. [47] As the test for piercing the corporate veil makes clear, control by one corporation over another, on its own, does not make the controlling corporation liable for the obligations of the controlled corporation; a fraudulent or improper purpose must also be present. [48] It is not suggested in this case that there are grounds to pierce the corporate veil of any of the relevant corporations. Accordingly, the basis on which the common employer doctrine operates to hold related corporations liable, while remaining consistent with the concept of corporate separateness, is important. The Common Employer Doctrine [49] The common employer doctrine does not involve piercing the corporate veil or ignoring the separate legal personality of each corporation. It imposes liability on companies within a corporate group only if, and to the extent that, each can be said to have entered into a contract of employment with the employee: Sinclair v. Dover Engineering Services Ltd. , 49 D.L.R. (4th) 297 (B.C.C.A.) (“Sinclair (BCCA)”) , at para. 9. [50] Thus, consistent with the doctrine of corporate separateness, a corporation is not held to be a common employer simply because it owned, controlled, or was affiliated with another corporation that had a direct employment relationship with the employee. Rather, a corporation related to the nominal employer will be found to be a common employer only where it is shown, on the evidence, that there was an intention to create an employer/employee relationship between the individual and the related corporation: Gray v. Standard Trustco Ltd. (1994), 8 C.C.E.L. (2d) 46 (Ont. Gen. Div.), at para. 3; Downtown Eatery (1993) Ltd. v. Her Majesty the Queen in Right of Ontario (2001), 54 O.R. (3d) 161 (C.A.), at paras. 31, 40, leave to appeal refused, [2002] 3 S.C.R. vi (note); Rowland v. VDC Manufacturing Inc. , 2017 ONSC 3351, at paras. 12-13. [51] As illustrated by the issue in this case, where Mr. O’Reilly alleges that Tornado is liable for specific employment obligations, the common employer question is one of contractual formation – did the employee and the corporation alleged to be a common employer intend to contract about employment with each other on the terms alleged? When such an intention is found to exist, no violence is done to the concept of corporate separateness because the corporation is held liable for obligations it has undertaken. [52] To determine whether the required intention to contract was present, the parties’ subjective thoughts are irrelevant. Nor need the intention necessarily have been reflected in a written agreement. The common law’s approach to contractual formation is objective; intention to contract can be derived from conduct. As the Supreme Court has stated in a similar common law contractual formation context, what is relevant is “how each party’s conduct would appear to a reasonable person in the position of the other party”: Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp. , 2020 SCC 29, 450 D.L.R. (4th) 105, at para. 33. [53] A variety of conduct may be relevant to whether there was an intention to contract between the employee and the alleged common employer(s). As they bear upon this case, two types of conduct are important. One is conduct that reveals where effective control over the employee resided. The second is the existence of an agreement specifying an employer other than the alleged common employer(s). [54] The conduct most germane to showing an intention that there was an employment relationship with two or more members of an interrelated corporate group is conduct which reveals that effective control over the employee resided with those members [4] : Downtown Eatery , at paras. 32-33. This is consistent with how the law distinguishes employment from other types of relationships. Control over such matters as the selection of employees, payment of wages or other remuneration, method of work, and ability to dismiss, can be important indicators of an employer/employee relationship: Baldwin v. Erin District High School Board , 1961 O.R. 687, at para 11, aff’d 36 D.L.R. (2d) 244 (SCC); see also Bagby v. Gustavson International Drilling Co. Ltd. , 1980 ABCA 227, 24 A.R. 181, at paras. 48-50. [55] A written agreement that specifies an employer other than the corporation(s) alleged to be the common employers may also be relevant. The extent of its relevance depends on how the existence and terms of the written agreement, in light of the facts, informs the question of whether there was an intention that others were also employers. [56] These points are illustrated in this court’s leading decision on common employer liability, Downtown Eatery , and the case law which has followed. [57] In Downtown Eatery , the employee was the manager of a nightclub called “For Your Eyes Only”. The nightclub was operated together by a “highly integrated or seamless group of companies”. One corporation owned the premises; a second owned the trademark and held the liquor and entertainment licences; a third owned the chattels and equipment; and a fourth was the paymaster: at para. 34. The employee’s contract was with the business name For Your Eyes Only, which itself was not a legal entity: at paras. 38-40. [58] The court held that an individual may be found to be an employee of more than one corporation in a related group of corporations, as long as the evidence shows an intention to create an employer/employee relationship between the individual and the respective corporations within the group: at para. 31. To determine that issue, the operative question raised by the facts was “where effective control over the employee resides”: at paras. 32-33. [59] In Downtown Eatery , the answer to that question was that each of the commonly controlled corporations that was integrally and directly involved in owning and operating the nightclub, was exercising control over, and was therefore a common employer of, the manager. [60] The court stated at para. 40: In conclusion, Alouche's true employer in 1993 was the consortium of Grad and Grosman companies which operated For Your Eyes Only . The contract of employment was between Alouche and For Your Eyes Only which was not a legal entity. Yet the contract specified that Alouche would be "entitled to the entire package of medical extended health care and insurance benefits as available in our sister organization". The sister organization was not identified. In these circumstances, and bearing in mind the important roles played by several companies in the operation of the nightclub , we conclude that Alouche's employer in June 1993 when he was wrongfully dismissed was all of Twin Peaks, The Landing Strip, Downtown Eatery and Best Beaver. This group of companies functioned as a single, integrated unit in relation to the operation of For Your Eyes Only . [Emphasis added.] [61] The two emphasized passages deserve amplification. [62] First, the written contract of employment in Downtown Eatery , by not naming a legal entity, did not indicate a choice of one entity over another in terms of identifying the employer. Rather, it indicated the employer was the nightclub, a business operated by the four corporations. Although there was a written agreement, it begged, rather than answered, the question of who the parties intended the employer to be. [63] Second, each of the corporations found to be a common employer was directly involved in the operation of the nightclub that employed the manager. The nightclub was each of their business. Each was thus in a direct relationship of control with the employee who had been hired to manage their business. None were held to be employers simply because they had a relationship with another corporation that was directly involved with the employee. As Hourigan J.A. noted in Yaiguaje , the conclusion in Downtown Eatery “rested more on the plaintiff’s relationship to the group of companies rather than the relationships among the companies in the group”: at para. 69. [64] In other cases, a common employer allegation has failed due to the presence of a written employment agreement that specified that only one company within the corporate group was the employer: Dumbrell v. The Regional Group of Companies Inc. , 2007 ONCA 59, 85 OR (3d) 616, at para. 83 ; Mazza v. Ornge Corporate Services, 2015 ONSC 7785, 52 B.L.R. (5th) 51 (“ Mazza (ONSC) ”), at paras. 93-99, aff’d 2016 ONCA 753 , 62 B.L.R. (5th) 211 (“ Mazza (ONCA) ”). In each of these cases, the facts were such that the court could conclude that the employee knew the only entity to whom he could look for fulfillment of employment obligations: Dumbrell , at para. 83; Mazza (ONSC) at paras. 90, 93-94. As this court explained in Mazza (ONCA) , the common employer claim was precluded because “[t]he Employment Agreement identified only one employer and contained an express release of claims against affiliated corporations”: at para. 8. In other words, the written agreements in those cases, in light of all the facts, did not permit the conclusion that there was an intention to create an employer/employee relationship with anyone beyond the employer specified in the written agreement. [65] Nonetheless, as Downtown Eatery shows, a written agreement will not always preclude a finding of common employers. It depends on the terms of the written agreement, and the other facts of the case. The circumstances must reasonably permit the inference that there was an intention that the alleged common employers were also parties to the employment agreement. The inference is not available simply because the corporations are related: As Morgan J. explained in Rowland , at paras. 12-13: In order to establish that two or more legal entities are his common employer, the Plaintiff must demonstrate that he had a reasonable expectation that the Defendants were each a party to his employment contract Where the employee is aware that he was employed by a single employer, the fact of interlocking shareholders with his formal employer does not itself establish a common employer. The onus is on the Plaintiff to demonstrate that there was “effective control over the employee” by all of the alleged common employer companies. There must be evidence of an actual “intention to create an employer/employee relationship between the individual and the respective corporations within the group”. [Citations omitted.] To summarize, the doctrine of common employer liability exists consistently with the principle of corporate separateness because it holds related corporations liable for obligations they actually undertook to perform in favour of the employee. It does not hold them liable simply because they have a corporate relationship with the nominal employer. Whether the related corporations actually undertook to perform those obligations is a question of contractual formation – did the parties objectively act in a way that shows they intended to be parties to an employment contract with each other, on the terms alleged? Of central relevance to that question is where effective control over the employee resided. The existence of a written agreement specifying an employer other than the alleged common employer(s) will also be relevant; the extent of the relevance will depend on the terms and the factual context. To Which Claims Does the Common Employer Doctrine Apply? [66] Tornado argues that the common employer doctrine applies only to wrongful dismissal claims. In my view, this argument must be rejected. [67] Although the common employer doctrine has traditionally been applied to wrongful dismissal claims, there is no reason in principle to so limit it. Whether a corporation is a common employer is a function of whether it is properly considered a party to the employment agreement with the employee. Therefore, any claims that could be brought by reason of that agreement can be made against the common employer. This includes claims for a breach that consists of not paying salary, bonus, or other entitlements as much as it includes claims for a breach that consists of dismissing the employee without notice or cause. [68] Against that backdrop, I turn to a consideration of the approach taken by the motion judge. The Standard of Review [69] Whether a common employer relationship exists is a question of mixed fact and law, as it involves the application of a legal standard to a set of facts. Appellate deference is generally warranted, but intervention is justified when the judge commits an extricable error of law, such as the formulation and application of the wrong test, or makes a palpable and overriding error of fact: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2. S.C.R. 235, at para. 36. The Motion Judge Did Not Articulate or Apply the Correct Test [70] The test to determine whether corporations are common employers may be stated in several ways that are in substance the same. For example, as articulated by Wallace J.A. in Sinclair (BCCA) : “The issue…reduces itself to determining which company or companies entered into a contract of employment with [the employee] pursuant to which he would provide services in return for his salary and benefits”: at para 8. Or, as adopted in Downtown Eatery , “One must find evidence of an intention to create an employer/employee relationship between the individual and the respective corporations within the group”: at para. 31. [71] Mr. O’Reilly contended that Tornado owed him the same obligations as ClearMRI US under the written employment agreement – the same salary, benefits, and other employment entitlements. For that contention to succeed, it was necessary to find that Tornado and Mr. O’Reilly intended to contract with each other on those terms. [72] As discussed below, the motion judge did not address that question. Although she referred to three factors that are relevant to determining whether a common employer relationship exists, she did not articulate the actual test, namely, whether there was an intention that Tornado was a party to the employment agreement with Mr. O’Reilly on the terms alleged. Nor did she apply that test to the factors she considered. In other words, she did not ask, or answer, the right question. [73] I deal, in turn, with the three factors the motion judge considered through the lens of the test. The Effect of an Employment Agreement [74] The first factor the motion judge discussed was Tornado’s absence from Mr. O’Reilly’s employment agreement. She held that this was not determinative. She said: “It is true that O 'Reilly's employment contract does not mention Tornado, and that Tornado did not pay him, but the factor of a contractual relationship is not determinative, or else it would be too simple for employers to evade their obligations towards their employees.” [75] To the extent that the motion judge suggested that there did not need to be any contractual relationship between Tornado and Mr. O’Reilly in order to consider Tornado a common employer, she erred. The whole point of the common employer inquiry was to determine whether Tornado was a party to an employment agreement imposing the obligations that Mr. O’Reilly sought to enforce. That did not require a written agreement with Tornado, but it did require a determination that a contractual relationship with Tornado on the terms alleged had been formed. The motion judge never adverted to that question. [76] The motion judge cited Downtown Eatery for the proposition that a contractual relationship is not a decisive factor. However, the passage the motion judge cited spoke to the relevance of a written agreement that did not specifically name the common employers; the court was not suggesting that a corporation can be a common employer without a finding that it and the employee intended to be parties to an employment agreement with each other. [77] To the extent that the motion judge was addressing the effect of the written agreement specifying only ClearMRI US as the employer, her consideration was incomplete. She did not address the agreement’s fundamental difference from that in Downtown Eatery which, unlike the agreement in this case, neither selected an entity as the employer, nor implicitly excluded any others from consideration. Here, the written agreement specifically named a corporation for which the appellant actually worked. [78] It was accordingly necessary to assess how the written agreement bore on the question of whether there was an intention that Tornado was a party to the employment agreement with the same obligations as ClearMRI US. This analysis would have to be made in light of all of the evidence. [79] The motion judge did not, however, undertake this required analysis. Tornado’s “Control” Over Mr. O’Reilly As an Employee [80] The second factor the motion judge considered was whether Tornado exercised “a sufficient amount of control” over Mr. O’Reilly. She held that it did, but her conclusion is tainted by her failure to relate the facts to the proper test. [81] The motion judge relied on several facts which she said she took from Mr. O’Reilly’s uncontested evidence: that Tornado and ClearMRI Canada “both agreed to accept [Mr.] O’Reilly’s offer to defer his salary”; that Tornado and ClearMRI Canada both agreed to accept his offer to loan funds to ClearMRI Canada; that Tornado and ClearMRI Canada had assured Mr. O’Reilly that both were committed to bringing the ClearMRI products to market; and that Tornado shared business objectives that Mr. O’Reilly was employed to achieve. There are several problems with these findings. [82] Beginning with the offer to defer salary, the motion judge misapprehended Mr. O’Reilly’s evidence. Mr. O’Reilly did not say his offer to defer his salary was accepted by Tornado. Rather, he said that “[t]he Board of Directors [of ClearMRI Canada] discussed and approved of the arrangement to defer my salary ‘until we are receiving revenue’ at its meeting of February 27, 2013…” This evidence does not indicate that Tornado was exercising control over Mr. O’Reilly as an employee. [83] Second, with respect to the loan, the motion judge did not relate her reliance on this to her later conclusion that the loan was “a private commercial debt and not a debt related to employment duties”. The motion judge did not explain, nor is it apparent, why Tornado’s involvement in agreeing to the loan, which she found to be unrelated to employment duties, was relevant to whether it was exercising control over Mr. O’Reilly as an employee. For similar reasons, Tornado’s offer that Mr. O’Reilly take shares in ClearMRI Canada in satisfaction of the loan – an offer Mr. O’Reilly did not accept – does not assist in showing that effective control over Mr. O’Reilly, as an employee, resided with Tornado. [84] Third, Mr. O’Reilly’s evidence about an assurance was that at the time he offered to defer his salary, he “was reassured by ClearMRI, Clear MRI’s directors, Tornado and Tornado’s directors, and had no reason to doubt that ClearMRI [Canada] was committed to bringing the product to market and subsequently earning significant revenue”. The motion judge did not explain, and it is not apparent, why the provision of this assurance about what his employer, ClearMRI Canada, was committed to do, constituted Tornado exercising control over Mr. O’Reilly as an employee. [85] The fourth fact the motion judge relied on, shared business objectives between Tornado and the ClearMRI companies, impermissibly strayed across the boundaries of corporate separateness. A shareholder’s objectives may be aligned with that of the corporation, in that the corporation’s success may accrue to the benefit of the shareholder. However, the business remains that of the corporation. An employee of a corporation is not controlled by a shareholder of that corporation simply because the employee is working for the success of the corporation, and the shareholder hopes that such success will occur. [86] Stepping back from the specific findings, the key question was whether there was evidence of an intention to create an employment agreement between Tornado and Mr. O’Reilly containing the obligations Mr. O’Reilly sought to enforce. The motion judge did not relate the evidence about control over Mr. O’Reilly to this critical question. She did not consider whether the evidence about control showed an intention that Tornado was one of Mr. O’Reilly’s employers at the time Mr. O’Reilly commenced employment in 2012, or that Tornado was somehow added as one of his employers at a point after that. Corporate Relationships [87] The third factor the motion judge considered was whether there was a sufficient relationship between Tornado and the ClearMRI companies to apply the common employer doctrine. She found that there was, relying on Tornado’s majority ownership and incidents of corporate control, Tornado’s consent rights under the Unanimous Shareholder Agreement, and a desire of Dr. Kim to consult Tornado about a proposed replacement to ClearMRI Canada’s board of directors. [5] [88] That corporations to which the common employer doctrine is applied are related to each other, members of a corporate group, or commonly controlled, is a feature of the case law. It might usefully be described as a necessary, but not a sufficient, factor for the application of the common employer doctrine. The corporate interrelationships in this case were such that the common employer doctrine qualified for consideration. But the corporate interrelationships do not, on their own, justify applying the doctrine. If they did, the common employer doctrine would lose its consistency with the concept of corporate separateness. [89] In some cases, the corporate set-up may shed light on with whom the employee has contracted, because it brings into sharper focus where effective control over the employee resided. For example, in Downtown Eatery , all of the commonly controlled corporations were directly operating the business that employed the manager. In Sinclair , the employee was required to work for two companies even though on the payroll of only one. Or the employee may have been transferred from company to company within a group in a manner that may indicate the employment agreement was with the parent corporation: Bagby , at para. 46. [90] These features were not present here. The motion judge did not consider or explain why the aspects of the corporate relationship between Tornado and the ClearMRI companies indicated an intention that Tornado was a party to the employment agreement with Mr. O’Reilly. In the absence of something that shows such an intention, share ownership and its incidents, including the power to elect directors and the alignment of financial objectives between parent and subsidiary corporations, are insufficient to establish common employer status on the parent. The motion judge referred to an overlap in directors, but there was no suggestion of confusion about the capacity in which directors were acting when they interacted with Mr. O’Reilly concerning employment. And while the motion judge relied on Tornado’s consent rights under the Unanimous Shareholder Agreement, those rights did not extend to employment agreements or changes in senior management – matters reserved to the ClearMRI Canada board. [91] Thus, on the key question of whether there was an intention that Tornado was a party to the employment arrangement with Mr. O’Reilly – even accepting the finding that the written agreement was not dispositive – the motion judge’s conclusions about control over Mr. O’Reilly as an employee did not address the correct test and were thus legally insufficient to support summary judgment. The corporate interrelationships could not fill that gap. Conclusion on Common Employer Liability [92] Accordingly, I would set aside the summary judgment against Tornado, and substitute an order dismissing the motion for summary judgment against it. B. Dr. Kim’s Appeal [93] In her reasons, the motion judge found Dr. Kim liable for six months’ wages and twelve months’ vacation pay on the basis that he was a director of ClearMRI Canada. Although he was also a director of Tornado, the formal judgment only addresses his liability as a director of ClearMRI Canada. [94] Dr. Kim’s primary argument on appeal is that even though ClearMRI Canada had not paid the judgment against it, the conditions to his liability in s. 131(2) of the OBCA are quite specific, and there was no evidence they were fulfilled. There was no evidence that ClearMRI Canada was in liquidation, ordered to be wound-up, or was formally bankrupt as contemplated by s. 131(2)(b). Nor was there evidence that an execution against ClearMRI Canada was returned unsatisfied as contemplated by s. 131(2)(a). [95] The issue is how s. 131 is to be interpreted in this case, given that it contemplates the director and the corporation being sued in the same action, yet provides that a director’s liability is conditional on, for example, an execution against the corporation being returned unsatisfied, a step that would occur after judgment. [96] In a case where the issue of liability of both the corporation and the directors comes up for consideration at the same time, and judgment is given against the corporation, any judgment against the director may have to be conditional on the occurrence of a subsequent event. That was how the motion judge, having found Tornado to be liable, approached the matter in respect of the Tornado directors. She directed the parties to return to address the responsibility of two Tornado directors (but not Dr. Kim) if execution against Tornado was returned unsatisfied. [97] Mr. O’Reilly obtained judgment against ClearMRI Canada sometime before he brought a motion for summary judgment against Dr. Kim. Dr. Kim argues that Mr. O’Reilly could have included evidence in the summary judgment motion that execution had been returned unsatisfied against ClearMRI Canada if that were the case. Since he did not, Dr. Kim argues that no judgment at all should have been given against him. In any event, the judgment does not reflect that Dr. Kim’s liability is conditional on s. 131(2) events occurring. [98] I reject the argument that no judgment at all should have been granted against Dr. Kim. Nothing in s. 131 of the OBCA puts a time limit on when the conditions in s. 131(2) can be fulfilled. But the formal judgment should be amended to provide that the liability of Dr. Kim in para. 3 is conditional on an execution against ClearMRI Canada being returned unsatisfied, or one of the events referred to in s. 131(2)(b) occurring in relation to ClearMRI Canada. The parties should have leave to return to the motion judge for directions if any issue arises on this point. C. Quantum Issues [99] The appellants made various arguments regarding the quantum of the judgments against them. Given the disposition of Tornado’s appeal, I address two that could apply to Dr. Kim. [100] First, they argue that the motion judge did not consider the fact that Mr. O’Reilly resigned in December 2013, and that this should affect the quantum of his entitlement. I would reject that argument. The motion judge found that, notwithstanding the formal resignation, Mr. O’Reilly continued to work as CEO “in reality”. This reality governs his compensation entitlement. [101] Second, it is argued that the agreement to defer specified the circumstance under which payment would resume, namely, the business earning revenue, and this never occurred. Mr. O’Reilly gave evidence, however, that revenue was earned. In my view, there was evidence on which the motion judge could properly view the deferral as non-permanent, such that the entitlement to claim salary and other entitlements was not waived and was in place when the revenue was earned. [102] Finally, it is argued that the motion judge simply accepted the amounts in the default judgment. There was evidence before the motion judge on the quantum of Mr. O’Reilly’s entitlements as they pertained to Dr. Kim’s liability. As well, his liability is derivative of that of ClearMRI Canada, which had been determined by judgment. I would not interfere with the quantum of the judgment against Dr. Kim. iv. CONCLUSION [103] Subject to the variation noted in para. 98 above, I would dismiss the appeal of Dr. Kim. I would allow Tornado’s appeal and set aside the summary judgment against it. [104] The parties made submissions on costs but did not specifically address the mixed result I have arrived at. If the parties cannot agree on costs, they should make written submissions limited to three pages each, within ten days of the release of these reasons. Released: June 7, 2021 “L.R.” “B. Zarnett J.A.” “I agree. L.B. Roberts J.A.” “I agree. Sossin J.A.” [1] Only the common law doctrine of common employer liability was invoked by the respondent in this case. Section 4 of the Employment Standards Act , 2000, S.O. 2000, c. 41 provides for circumstances in which separate persons are treated as one employer. It is not necessary to comment on how the section might have applied in this case, a point on which the parties did not agree. [2] The motion judge described this latter category of decision as falling within Tornado’s consent rights at para. 13 of her reasons, but this appears to misread sections 2.12 and 2.13 of the Unanimous Shareholder Agreement. [3] The motion judge subsequently varied her judgment to delete one of the individuals (Stefan Larson) as he had not been a director of either Tornado or ClearMRI Canada at the relevant time. [4] This is a different question from the question of corporate control, which, at its most basic, refers to the ability of a shareholder to elect the majority of a corporation’s board of directors: OBCA , s. 1(5). The fact that one corporation controls a second corporation does not equate to control by the first corporation over the second corporation’s employees. [5] Neither the director being replaced, or the replacement, was Mr. O’Reilly.

COURT OF APPEAL FOR ONTARIO CITATION: Oakville (Town) v. Sullivan, 2021 ONCA 1 DATE: 20210106 DOCKET: C68261 Trotter, Zarnett and Jamal JJ.A. BETWEEN The Corporation of the Town of Oakville and Oakville Hydro Electricity Distribution Inc. Applicants (Respondents) and Michael Arthur Sullivan and Margaret Di Pede Respondents (Appellants) Albert G. Formosa and Marie-Pier Nadeau, for the appellants Charles M.K. Loopstra and Scott E. Hamilton, for the respondents Heard: November 24, 2020 by video conference On appeal from the order of Justice Clayton Conlan of the Superior Court of Justice, dated March 6, 2020, with reasons reported at 2020 ONSC 1419. Jamal J.A.: Introduction [1] This appeal involves a claim for actionable encroachment on an easement. The appellants, Michael Sullivan and Margaret Di Pede, built a swimming pool and surrounding deck, platform, and other elements (“Pool Amenities”) behind their house in Oakville. The Pool Amenities extend over a ten-foot strip of land which, although owned by the appellants, is subject to an easement held by the respondents, The Corporation of the Town of Oakville (“Town”) and Oakville Hydro Electricity Distribution Inc. (“Hydro”). The easement prohibits “the erection of any building or structure” within that strip of land. The appellants knew about the easement when they bought the property and proceeded to build the Pool Amenities without a municipal building permit. [2] The application judge declared the Pool Amenities to be a “building or structure” erected on the land that was subject to the easement, and thus an actionable encroachment upon it. He ordered the appellants to remove the Pool Amenities and remediate any damage to the easement by June 1, 2020. The appellants now appeal. [3] For the reasons that follow, I would dismiss the appeal. Background [4] In June 1972, the appellants’ predecessors in title granted an easement to the Town over “the most westerly ten feet (10’)” of their property. The easement indenture, which is registered on title, provides in relevant part: WHEREAS the Owners are the owners of the lands described in Schedule “A” hereto and have agreed to grant the herein mentioned easements; NOW THEREFORE the Owners in consideration of other good and valuable consideration and the sum of Two Dollars ($2.00) now paid to it by the Town, hereby grants to the Town the right, liberty and privilege appurtenant to its undertaking as a Municipal Corporation to construct, operate, maintain, replace and repair underground sewers, drains, pipes, conduits, wires and services generally with such above ground accesses, manholes, catch basins, hydrants, service boxes and other appurtenances as it desires, at its expense and for so long as it desires, upon, across, along and under the land described in Schedule “A” hereto and for every such purpose the Town and those claiming under it shall have access to the said land at all times but reserving to the Owners the right to use the surface of the said land for any purpose which does not conflict with the Town’s rights hereunder and specifically excluding the planting of any tree and the erection of any building or structure . [Emphasis added.] [5] In February 2000, the Town sold the easement to Hydro but retained an interest in it under the municipal by-law authorizing the sale. [6] In October 2012, the appellants bought the property. They knew about the easement before closing, but believed it was abandoned or never used. In fact, located within the easement is an underground conduit that houses a hydro cable providing electricity to a neighbouring property. [7] In early 2014, the appellants built the Pool Amenities in their back yard within the easement. [8] It is not disputed that the Pool Amenities are a “building” under the Ontario Building Code Act, 1992 , S.O. 1992, c. 23, and thus legally required a municipal building permit. No such permit was obtained. In January 2018, the appellant Michael Sullivan pleaded guilty to building the Pool Amenities without a building permit and breaching an order to comply. Mr. Sullivan offered to pay to relocate the hydro service of the neighbouring property, but his affected neighbour was unwilling to agree to this proposal. [9] It is also not disputed that, over the years, several other structures have been erected within the easement with the Town’s approval, including a carport and part of the house. Two large trees are also within the easement. [10] In May 2018, the respondents applied to the Ontario Superior Court for a declaration that the Pool Amenities encroach upon the easement and for an order requiring their removal. The application judge’s decision [11] By order dated March 6, 2020, the application judge granted the application. In his reasons, he ruled that the Pool Amenities actionably encroach upon the easement because they contravene the express prohibition against erecting a building or structure within it. He also ruled that the equitable doctrine of proprietary estoppel does not prevent the Town and Hydro from enforcing their rights under the easement. He therefore ordered the appellants to remove the Pool Amenities and to remediate any damage to the easement at their own expense by June 1, 2020. [12] In obiter dicta , however, the application judge added that had he not concluded that the Pool Amenities contravened the express terms of the easement, he would have ruled that the Town and Hydro had not established an actionable encroachment. He was “prepared to accept that the Pool Amenities could cause some unspecified or unknown, but probably quite minor, degree of inconvenience to the Town and/or Hydro in exercising their Easement rights, however, that is not the test for substantial interference.” Issues [13] This appeal raises three issues: 1. Is there an actionable encroachment on the easement? 2. Was the easement abandoned or partially extinguished? 3. Does the equitable doctrine of proprietary estoppel preclude enforcement of the easement? Discussion Issue #1: Is there an actionable encroachment on the easement? (a) Applicable principles [14] In evaluating whether there is an actionable encroachment on an easement created by express grant, the court first determines the nature and extent of the easement by interpreting “the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created”: Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.), at para. 10; see also Raimondi v. Ontario Heritage Trust , 2018 ONCA 750, 96 R.P.R. (5th) 175, at para. 11. [15] Once the nature and extent of the easement have been determined, the court then considers whether there is an actionable encroachment upon it. The test for an actionable encroachment is whether there is a “substantial interference” with the use and enjoyment of the easement for the purpose identified in the grant: Weidelich v. de Koning , 2014 ONCA 736, 122 O.R. (3d) 545, at paras. 9-11; Fallowfield , at paras. 40-41; Hunsinger v. Carter , 2018 ONCA 656, 91 R.P.R. (5th) 175, at para. 11; Anne Warner La Forest, Anger & Honsberger, Law of Real Property , loose-leaf, 3rd ed. (Toronto: Thomson Reuters, 2019), at para. 17:20.50; and Halsbury’s Laws of Canada – Real Property (Toronto: LexisNexis Canada, 2016 Reissue), at HRP-325. (b) Application to this case [16] The appellants assert that the application judge erred in ruling that the Pool Amenities are an actionable encroachment, for two reasons: 1. The easement does not limit the appellants’ right to build the Pool Amenities on their property, because the easement was only ever intended to be used, and has only ever been used, for a hydro line, which can be serviced even with the Pool Amenities located within the easement; and 2. The application judge applied the wrong test for actionable encroachment by ruling that the appellants are “prohibited outright from erecting any building or structure within the Easement, regardless of whether that building or structure conflicted or substantially interfered with the rights of the Easement holder(s).” Had the application judge applied the correct “substantial interference” test, he would have concluded that no actionable encroachment was established. [17] I do not accept these submissions. [18] First, the application judge’s ruling as to the nature and extent of the easement involves a question of mixed fact and law that attracts appellate deference, and is reviewable (absent an extricable error of law) only for palpable and overriding error: see Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 50; Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp. , 2020 SCC 29, 450 D.L.R. (4th) 105, at para. 101, per Rowe J. (dissenting, but not on this point); Tessaro v. Langlois , 2019 BCCA 95, 100 R.P.R. (5th) 51, at paras. 18-20; and Twogee Developments Ltd v. Felger Farming Co Ltd , 2017 ABCA 138, 52 Alta. L.R. (6th) 270, at para. 27. [19] In my view, the application judge properly focused on the wording of the easement indenture. The indenture states that the appellants’ rights to use the surface of the lands within the easement “specifically exclud[es] the planting of any tree and the erection of any building or structure”. He was entitled to conclude that the easement “delivered a two-part message to the homeowner”: “(i) do not use the surface of the Easement land for any purpose that conflicts with the Town’s rights (described above), and (ii) so that there is no confusion, do not under any circumstances plant a tree or erect a building or structure within the Easement” (emphasis in original). The bottom line, the application judge stated, is that “the planting of a tree or the erection of a building or structure on the Easement land is not permitted, period.” [20] The application judge was also entitled to conclude that interpreting the easement as an outright prohibition reflects its broad purpose of allowing the Town unfettered access within the easement to provide municipal services: One must remember that the purpose of this particular Easement is very broad. The Town, from the outset of the Indenture’s creation, has the right to (i) go underground within the Easement for, effectively, any reason connected to municipal services and to (ii) access, above ground and within the Easement, any item related to such a service. An outright prohibition against the planting/erection of any tree, building or structure within the Easement is neatly consistent with such a broad purpose. [21] The appellants say that the application judge’s interpretation focuses principally on the wording of the indenture and ignores contemporaneous extrinsic evidence that suggests that the easement was primarily if not exclusively intended to permit a hydro line under the appellants’ property. They say that modern technology now allows the hydro line to be repaired or replaced even if a building or structure is erected within the easement. [22] I do not accept this submission. It is, in effect, an invitation for the court to read down the clear words of the easement indenture based on the surrounding circumstances and the use made of the easement to date. But, as Rothstein J. for the Supreme Court of Canada cautioned in Sattva , “[w]hile the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement”: at para. 57. The easement indenture here is not limited to placing a hydro line under the appellants’ property. It also allows the Town to install and maintain “underground sewers, drains, pipes, conduits, wires and services generally”. That these facilities have not been installed within the easement to date is of no moment. The easement is not time limited and is therefore perpetual: Remicorp Industries Inc. v. Metrolinx , 2017 ONCA 443, 138 O.R. (3d) 109, at para. 47, citing Gale on Easements , 20th ed. (London: Thomson Reuters (Professional) UK Limited, 2017), at para. 12-26. Indeed, the easement indenture expressly permits the Town access to provide the other listed municipal services, “as it desires” and “for so long as it desires”. [23] Thus, in my view, the application judge’s determination of the nature and extent of the easement is not tainted by palpable or overriding error. I would therefore reject the appellants’ first argument that the easement does not prohibit the erection of a building or structure such as the Pool Amenities. [24] Second, I disagree with the appellants’ claim that the application judge applied the wrong test for an actionable encroachment. Although I accept that the application judge’s reasons could have been clearer, I read those reasons as implicitly applying the substantial interference test. By contravening the outright prohibition against erecting a building or structure, the Pool Amenities necessarily encroach upon the easement. The easement indenture does not say that the appellants are prohibited from erecting a building or structure unless it creates a barrier or obstacle to the respondents’ exercise of their rights under the easement. Rather, as the application judge held, the appellants are “prohibited outright from erecting any business or structure within the Easement”. By agreeing to an outright prohibition, without qualification, the parties have effectively defined for themselves what will constitute a substantial interference with the easement. [25] The application judge’s observation in the alternative and in obiter that the respondents did not discharge their onus of establishing substantial interference does not detract from this conclusion. His obiter observation considered only one aspect of the easement — the appellants’ obligation not to use the surface of the easement for any purpose that conflicts with the Town’s rights. Because it was in the alternative, it did not consider the outright prohibition against erecting any building or structure. But when the outright prohibition is considered, as it was under the first part of the application judge’s analysis, a substantial interference is established. [26] I therefore see no basis to intervene with the application judge’s conclusion that the Pool Amenities are an actionable encroachment on the easement. Issue #2: Was the easement abandoned or partially extinguished? (a) Applicable principles [27] In Remicorp , this court reviewed the general principles relating to abandonment of an easement by release (at paras. 47-51) and partial extinguishment of an easement (at paras. 63-73). In broad outline: · “Unless an easement is granted for a term of years, the rights conferred by an easement are perpetual and, accordingly, are actually or potentially valuable rights. Therefore it is not lightly to be inferred that the owner of such a right should give it up for no consideration”: at para. 47, citing Gale on Easements , at para. 12-26. · Other than by an express release, an easement can be abandoned by release impliedly by non-use coupled with evidence of an intention to abandon the easement: at para. 49. · An easement can be extinguished either by statute or at common law: at paras. 70-71. (b) Application to this case [28] Here, in the alternative, the appellants assert that the easement has been abandoned for any purpose other than the hydro cable. They say this is the only purpose for which the easement has been used, and that modern technology allows the cable to be serviced effectively even with the Pool Amenities within the easement. They also suggest the easement has been partially extinguished at common law because the easement serves no purpose other than servicing the hydro cable. [29] However, the application judge made no express findings on abandonment or partial extinguishment, and it is not clear whether these issues were even argued before him. This court will generally not entertain entirely new issues on appeal where doing so might unfairly deprive the other party of the opportunity to lead relevant evidence: Kaiman v. Graham , 2009 ONCA 77, 245 O.A.C. 130, at para. 18; Whitby (Town) v. G & G 878996 LM Ltd. , 2020 ONCA 654, 5 M.P.L.R. (6th) 174, at para. 9. [30] In any event, based on the evidence before the court and the findings that were made, I see no basis to conclude that the easement was abandoned or partially extinguished: · No express abandonment is alleged, nor have the appellants established implied abandonment. In my view, the creation of the easement by express grant registered on title and its use continuously for a hydro cable is sufficient to find that the respondents did not intend to abandon it: see Remicorp , at paras. 50-51. · Nor is there any basis to find that the easement was extinguished at common law. There is no evidence that the municipal purposes for creating the easement have come to an end : Remicorp , at para. 65, citing Anger & Honsberger , Law of Real Property , at para. 17:20.60(a). Nor does lack of use and lack of need suffice to extinguish an easement by operation of law: Remicorp , at para. 76. [31] I therefore conclude that the appellants have not established that the easement was abandoned or partially extinguished. Issue #3: Does the equitable doctrine of proprietary estoppel preclude enforcement of the easement? (a) Applicable principles [32] Proprietary estoppel is an equitable doctrine that can create or affect property rights when there is a want of consideration or of writing: Clarke v. Johnson , 2014 ONCA 237, 371 D.L.R. (4th) 618, at para. 41, citing Anger & Honsberger, Law of Real Property , at para. 28:10.20. As noted in Clarke , at para. 52, three elements must be established: (i) the owner of the land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the property; (ii) in reliance upon his belief, the claimant acts to his detriment to the knowledge of the owner; and (iii) the owner then seeks to take unconscionable advantage of the claimant by denying him the right or benefit which he expected to receive[.] (b) Application to this case [33] In the further alternative, before this court the appellants largely repeat the argument they made before the application judge to invoke proprietary estoppel: (i) the Town expressly permitted the construction of a portion of the appellants’ house and carport within the easement, and thus induced, encouraged, or allowed them to believe that the easement was abandoned or no longer in use; (ii) the appellants relied on this belief when building the Pool Amenities within the easement; and (iii) it would be unconscionable to allow the respondents to now assert that the Pool Amenities encroach on the easement. [34] The application judge rejected this argument and concluded that the appellants had established none of the conditions for proprietary estoppel: [T]here is no evidence to suggest that Hydro had any knowledge of the other structures located within the easement that existed before the Pool Amenities were installed, and thus, it cannot be said that Hydro induced, encouraged or allowed [the appellants] to do what they did in early 2014. Second, we know for certain that the [appellants] did not enquire with the Town and/or Hydro about the scope of the Easement or a building permit before installing the Pool Amenities, and thus, there is no evidence to suggest that the [appellants] acted to their detriment to the knowledge of either the Town or Hydro. Third, though perhaps unforgiving to some degree, there is nothing “unconscionable” about the Town and Hydro enforcing the clear wording of the said Indenture. [35] The application judge correctly cited the elements for proprietary estoppel enunciated in Clarke , and asked whether those elements were met based on the facts. His conclusion that the appellants had not established the conditions for proprietary estoppel is a finding of mixed fact and law that attracts appellate deference, absent palpable and overriding error. In my view, the appellants have shown no such error. [36] I therefore conclude that the equitable doctrine of proprietary estoppel does not preclude the enforcement of the respondents’ easement. Disposition [37] I would dismiss the appeal, order the appellants to comply with the order of the application judge by June 30, 2021 (the date agreed to by the parties), and award the respondents costs of the appeal in the agreed amount of $40,000, all inclusive, payable within 30 days. Released: January 6, 2021 (“G.T.T.”) “M. Jamal J.A.” “I agree. G.T. Trotter J.A.” “I agree. B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ontario (Labour) v. Sudbury (City), 2021 ONCA 252 DATE: 20210423 DOCKET: C67701 Fairburn A.C.J.O., Watt and Huscroft JJ.A. BETWEEN Her Majesty the Queen in Right of Ontario (Ministry of Labour) Appellant and Corporation of the City of Greater Sudbury Respondent David McCaskill, for the appellant Ryan J. Conlin and Amanda D. Boyce, for the respondent Chetan Muram and Kevin Simms, for the intervener Workers’ Health and Safety Legal Clinic Heard: January 26, 2021 by video conference On appeal from the judgment of Justice John S. Poupore of the Superior Court of Justice, dated June 6, 2019, with reasons reported at 2019 ONSC 3285, 88 M.P.L.R. (5th) 158, dismissing an appeal from the acquittals entered on August 31, 2018, by Justice Karen L. Lische of the Ontario Court of Justice. REASONS FOR DECISION OVERVIEW [1] A woman died after she was struck by a road grader performing repairs at an intersection in downtown Sudbury. The grader driver was employed by Interpaving Limited, a company the respondent, the City of Sudbury, had contracted to complete the road repairs. The City employed inspectors at the project site, among other things overseeing Interpaving’s contract compliance. [2] Interpaving and the City were charged with violations of Construction Projects , O. Reg. 213/91 (the “Regulation”), contrary to s. 25(1)(c) of the Occupational Health and Safety Act , R.S.O. 1990, c. O.1 (“ OHSA ” or the “Act”). The City was charged on the basis that it was both a “constructor” and an “employer” within the meaning of the Act. [1] [3] Interpaving was found guilty but the City was acquitted in separate proceedings. The trial judge in the City’s case found that there was no signaller in assisting the grader operator, nor was a fence erected between the public way and the worksite, as required by the Regulation. However, the trial judge concluded that the City was neither an employer nor a constructor and so owed no duties under the Act. The trial judge went on to find that, in any event, the City had a due diligence defence to the charges. [4] The Crown’s appeal was dismissed. The appeal judge upheld the trial judge’s finding that the City was neither an employer nor a constructor and did not consider whether the City would have had a due diligence defence. [5] The Crown was granted leave to appeal to this court to determine whether the appeal judge erred in concluding that the City was not an employer under the Act. The City’s possible status as a constructor was an issue of mixed fact and law and so not subject to appeal under s. 131 of the Provincial Offences Act , R.S.O. 1990, c. P.33 (“ POA ”). [6] We conclude that the City was an employer within the meaning of the Act and, as a result, was liable for violations of the Regulation found by the trial judge unless it could establish a due diligence defence. The appeal is allowed and the decision is remitted as set out below to hear the Crown’s appeal of the trial judge’s due diligence finding. DISCUSSION Is the City an employer? [7] This is an appeal from the judgment of the appeal judge. The question for this court is whether the appeal judge erred in concluding that the City was not an employer for purposes of the Act. [8] At the outset, the Crown reminds the court that the OHSA is public welfare legislation, and as such “should be read liberally and broadly in a manner consistent with its purpose”. There is no doubt that this is so; this court has consistently instructed that the Act must be interpreted generously, rather than narrowly or technically, in order to allow it to achieve the purpose of protecting employees’ health and safety. See, most recently, Ontario (Labour) v. Quinton Steel (Wellington) Limited , 2017 ONCA 1006 at paras. 19-20, and the authorities cited. [9] Whether the City is an “employer” turns on the application of the definition of employer in s. 1(1) of the OHSA , which provides as follows: “employer” means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services ; (“employeur”) [10] The definition embraces both employing and contracting for the services of workers, but this appeal can be resolved at the first branch of the definition. As this court explained in R. v. Wyssen , 1992 CanLII 7598 (Ont. C.A.), at p. 7, “[t]he definition of ‘employer’ in the Act covers two relationships: firstly, that of a person who employs workers and secondly, that of one who contracts for the services of workers.” A person “who employs one or more workers” is therefore an employer for the purposes of the Act and is responsible for ensuring compliance with the Act in the workplace. [11] The Act establishes overlapping responsibility for health and safety and contemplates the possibility of multiple employers in a workplace. In Wyssen , at p. 9, the court noted that the relevant enforcement provisions in the Act put employers “virtually in the position of an insurer who must make certain that the prescribed regulations for safety in the work place have been complied with before work is undertaken by either employees or independent contractors.” [12] Not only do the duties of the workplace parties overlap; one person or entity may also meet the definitions for several different workplace parties and therefore be required to assume the duties of each of those parties at the same time. For example, a person or entity might be subject to duties as an owner as well as an employer and a constructor. [13] In this case, there is no doubt that City inspectors – employees employed directly by the City – were present on the project site and performed a variety of tasks. Among other things, they monitored the job site for quality control purposes and monitored the progress of the work to confirm that the City was receiving the work it was paying for. [14] Plainly, the City employed one or more workers at the project site within the meaning of s. 1(1). It is therefore an employer for the purposes of the Act and, as Wyssen makes clear, that is sufficient to dispose of this appeal. The exemption in s. 1(3), which precludes an owner from becoming a constructor by engaging a person to oversee quality control, does not preclude owners from becoming employers. [15] Although Brown J.A. raised a broader question in granting leave to appeal to this court – whether “control” is a requirement in cases where a municipality has contracted work to a third party – it is not necessary to resolve this question in order to decide this appeal. The City employed one or more workers at the project site and so assumed responsibilities as an employer under the Act on this basis under the first branch of the “employer” definition. Whether a municipality that contracts work to a third party must exercise control over that third party or its workers to be an employer under the second branch of the definition raises a number of issues that were not sufficiently canvassed in the parties’ submissions. In our view, it would be improvident to decide these issues on the record before us. [16] Consequently , nothing in this decision is to be taken as either an endorsement of the appeal judge’s analysis or a determination of whether or not control is an element of the definition of “employer” where a municipality contracts work to a third party. Did the City exercise due diligence? [17] As noted above, the trial judge’s findings that the Regulation was breached by the failure to have a signaller in place to assist the grader operator and the failure to erect a fence between the public way and the worksite render the City liable as employer for breach of s. 25(1)(c) of the Act, unless the City succeeds in establishing a due diligence defence. [18] The Crown argues that the trial court’s test for due diligence – a matter not addressed by the appeal judge – was wrong in law. According to the Crown, the City was required to show that it took all reasonable steps to ensure that the specific safety violations were remedied; general acts directed at safety cannot satisfy the due diligence obligation. The Crown submits that, if this court concludes that the City was an employer, the necessary findings of fact were made by the trial judge to substitute convictions on counts 8 and 9 of the Information (failure to have a signaller and failure to erect a fence). In the alternative, the Crown requests that a new trial be ordered. [19] The City responds that it satisfied its due diligence obligations by exercising diligence and prudence in the tendering process that resulted in the contract with Interpaving. In the alternative, the City argues that it took other steps that were sufficiently specific to meet its due diligence obligations as an employer. [20] It must be emphasized that this court sits in appeal from the decision of the appeal judge, not the trial judge: Ontario (Labour) v. Nugent , 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 22. The appeal judge made no decision on the due diligence question, but a new trial is neither necessary nor appropriate for that reason. The appropriate remedy is to remit the matter to the appeal court to hear the City’s appeal of the due diligence issue. [21] The court’s ability to remit the matter flows from s. 134 of the POA , which incorporates ss. 121 and 125 with necessary modifications. In short, s. 121 sets out the powers of the first-level appeal court in allowing an appeal from an acquittal. Although s. 121 does not explicitly provide that the Court of Appeal may remit the matter to the appeal judge to consider an alternative argument, s. 134 provides that the provision applies in the Court of Appeal “with necessary modifications”. Section 125 provides that, when exercising its power under s. 121, the court may make any order that justice requires. These provisions authorize the court to remit the matter to the appeal court: see e.g., R. v. Francis (1996), 92 O.A.C. 308 (C.A.); R. v. Thorne , [1997] O.J. No. 1036 (C.A.); Ottawa (City) v. Spirak , 2008 ONCA 299; Ontario (Ministry of Labour) v. Modern Niagara Toronto Inc. , 2008 ONCA 590, 297 D.L.R. (4th) 156; R. v. Courtice Auto Wreckers Limited , 2014 ONCA 189, 308 C.C.C. (3d) 571; and R. v. Maxwell , 2007 ONCA 834. CONCLUSION [22] The appeal is allowed. The decision of the appeal court judge is set aside. [23] The Crown fairly concedes that the trial judge does not appear to have made the necessary factual findings to determine guilt on count 10 of the Information and that this charge was “somewhat peripheral to the event in question”. Accordingly, the matter is remitted to the appeal court for a hearing before a different judge to consider the Crown’s appeal of the City’s due diligence defence with respect to counts 8 and 9 of the Information. “Fairburn A.C.J.O.” “David Watt J.A.” “Grant Huscroft J.A.” [1] The City and Interpaving were both charged as “employers” pursuant to s. 25(1)(c) of the Act. The City was also charged as a “constructor” pursuant to s. 23(1)(a) and (b), but Interpaving was not.

COURT OF APPEAL FOR ONTARIO CITATION: Ontario College of Teachers v. Bouragba, 2021 ONCA 8 DATE: 20210108 DOCKET: M51998 (C68742) & M52018 (C68742) Doherty, Zarnett and Coroza JJ.A. BETWEEN The Ontario College of Teachers Plaintiff (Respondent) and Ahmed Bouragba Defendant (Appellant) Ahmed Bouragba, appearing in person Christine L. Lonsdale and Charlotte-Anne Malischewski, for the respondent Heard: January 4, 2021 by video conference REASONS FOR DECISION [1] There are two motions before the court. The respondent, The Ontario College of Teachers (the “College”), seeks to quash the appeal brought by Mr. Bouragba on the basis that the order of O’Brien J., dated September 4, 2020, is interlocutory and appealable only to the Divisional Court with leave. The appellant seeks an order staying the order of O’Brien J. until his appeal from that order has been heard and decided by this court. Mr. Bouragba’s motion to stay need only be addressed on the merits if the appeal is properly brought in this court. [2] The appellant appeals the order which fixes January 12, 2021 for the hearing of the College’s motion to discontinue its action against the appellant. The order also directs that Mr. Bouragba, assuming the College’s action has not been finally disposed of on the College’s motion to discontinue, may schedule his motion under s. 137.1 of the Courts of Justice Act after the Supreme Court has determined whether to grant him leave to appeal on a related appeal. [3] The order under appeal is a scheduling order. It sets a date for the hearing of the College’s motion, and fixes the timing for the scheduling of Mr. Bouragba’s s. 137.1 motion. The order does not determine the merits of either the College’s motion to discontinue, or Mr. Bouragba’s s. 137.1 motion. [4] In her endorsement, O’Brien J. does express a view concerning the effect of s. 137.1(5) of the Courts of Justice Act on the College’s right to bring a motion to discontinue its action. The appeal, however, lies from the order not from the reasons. As indicated above, the order speaks only to scheduling matters. [5] In oral argument, counsel for the College conceded the views of O’Brien J. with respect to s. 137.1(5) are not binding on the court that will hear the College’s motion to discontinue its action on January 12, 2021. We agree with that concession. On the College’s motion to discontinue its action, Mr. Bouragba is free to argue s. 137.1(5) precludes the College from bringing a motion to discontinue its action after Mr. Bouragba had commenced his motion under s. 137.1 and before the s. 137.1 motion was finally disposed of. If Mr. Bouragba chooses to advance that argument, it will be for the master hearing the motion to discontinue to decide the merits of that and any other argument advanced by him. [6] The scheduling order made by O’Brien J. is interlocutory. This court has no jurisdiction to entertain an appeal. The appeal is quashed. As there is no appeal properly before this court, the motion to stay the order of O’Brien J. is also quashed. [7] The College is entitled to costs fixed at $1,000, inclusive of disbursements and relevant taxes. “Doherty J.A.” “B. Zarnett J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 332 DATE: 20210514 DOCKET: M52429 Miller J.A. (Motion Judge) BETWEEN Her Majesty the Queen in Right of Ontario (Ministry of Natural Resources and Forestry) Respondent (Responding Party) and The Town of the South Bruce Peninsula Appellant (Moving Party) Jonathan C. Lisus and James Renihan, for the moving party Nicholas Adamson and Madeline Ritchie, for the responding party Heard: May 4, 2021 by video conference ENDORSEMENT [1] The Town of South Bruce Peninsula, the moving party, is responsible for maintaining Sauble Beach, a popular tourist destination. The beach is also the seasonal nesting home of the piping plover, a migratory shorebird designated as endangered by the Endangered Species Act, 2007 , S.O. 2007, c. 6 (the “ ESA ”). Section 10(1) of the ESA makes it an offence for any person “to damage or destroy the habitat” of over 175 species of plants and animals, including the piping plover. The section applies to habitats located on private or public land. [2] In addition to its obligations under the ESA , the Town is required to maintain the beach for the safety of its users. Since 2007, when the piping plover returned to Sauble Beach after a 30-year absence, the Town has worked closely with the Ministry of Natural Resources and Forestry (“MNRF”) to assist in recovery efforts. The Town has sought to minimize the impact of its maintenance on the plovers, to take active steps to protect the few plovers’ nests (typically fewer than five) from predators and accidental interference from beach users, and to ensure that the natural features of the beach area remain suitable to piping plovers looking for a place to nest. All seemed satisfactory until 2017. [3] In early April 2017, before the annual arrival of the piping plovers, the Town mechanically raked the beach. In late August 2017, after the piping plovers had left for the season, the Town advised MNRF of its plan for upcoming maintenance. MNRF raised no objections to what was proposed and the Town carried out its maintenance. [4] Subsequently, the MNRF alleged that the nature and extent of the Town’s maintenance in April and August exceeded what had been proposed and had damaged plover habitat. [5] The Town was charged and convicted of two counts of damaging piping plover habitat, contrary to s. 10(1)(a) of the ESA . The convictions were upheld on appeal by Morneau J. of the Ontario Court of Justice (the “Appeal Judge”). [6] The Town seeks leave to appeal to this court pursuant to s. 139(1) of the Provincial Offences Act , R.S.O. 1990, c. P.33 (the “ POA ”). It raises two issues: (i) the Appeal Judge (and the Justice of the Peace below) erred in their interpretation of s. 10(1) of the ESA , particularly with respect to what constitutes ‘damage’ to a species’ habitat and the evidence required to prove it, and (ii) the Appeal Judge (and the Justice of the Peace) erred in applying the test in White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23, [2015] 2 S.C.R. 182 governing the admissibility of expert evidence in the context of a regulatory offence. [7] The threshold for granting leave to appeal pursuant to s. 139 of the POA is high. Section 139(1) provides that leave is only available on special grounds upon a question of law alone. Section 139(2) further specifies that no leave shall be granted unless, in the particular circumstances of the case, “it is essential in the public interest or for the due administration of justice that leave be granted”. [8] The Town argues that the Appeal Judge erred by interpreting ‘damage’ too broadly, to include any change, no matter how temporary, that would make an area “less attractive, useful or valuable” to a species. This would capture any change that made a habitat less attractive to a species to any degree – regardless of whether it was a trifling inconvenience or capable of having any practical impact on the life processes of the species in question. The Town argues that ‘damage’ must be interpreted with reference to the definition of ‘habitat’ in the ESA , which is defined, in part, as “an area on which the species depends, directly or indirectly, to carry on its life processes”: at s. 2(1). [9] The Town argues that s. 10(1), properly interpreted, would require some assessment – and some evidence – that a change to a habitat had some negative impact on the viability of the species. It further argues that the interpretation of ‘damage’ should include a balance between the protection of listed species and the economics of industries operating under the ESA . Furthermore, the public interest requirement from s. 139(2) is satisfied, it argues, by the number of land owners and users who are at risk of violating the ESA or are constrained in their use of land, due to an overly expansive and rigid interpretation of s. 10(1). [10] The Crown concedes that the interpretation of ‘damage’ in the context of the ESA is a legal question, but argues that the Appeal Judge made no error in her interpretation of s. 10(1). It argues, further, that the interpretation advanced by the Town is untenable, as s. 10(1) is a strict liability offence that is established on proof that a habitat has been damaged to any degree, independently of any harm to a species. Finally, the Crown argues that an appeal on this question is not essential either to the public interest or the due administration of justice. [11] I am satisfied that leave ought to be granted on this question. The interpretation of the ESA provided by the Appeal Judge may be found to be right. However, the questions raised by the Town are serious and their resolution will make the legislation more determinate and thus capable of providing greater guidance to those subject to it. Further, there are a great many persons who are required to conform their behaviour to the demands of statute. The ESA is of such broad application – impacting private and public landowners as well as any member of the public using such lands – that as with R. v. Castonguay Blasting , 2011 ONCA 292, 58 C.E.L.R. (3d) 30, Ontario (Labour) v. Sudbury (City) , 2019 ONCA 854, 93 M.P.L.R. (5th) 179, and R. v. Hicks , 2014 ONCA 756, its interpretation is a matter of public interest. Furthermore, as with Hicks , this seems to be this court’s first opportunity to apply this section. [12] I would also grant leave on the second issue. It is true that White Burgess has received considerable attention from this court and others since it was decided. There may prove to be no questions of nuance about its application in a regulatory setting that have not already been canvassed in the criminal and civil context. However, guidance from this court on such a fundamental question of law related to the administration justice is appropriate, and I am satisfied that leave should be granted on this basis. DISPOSITION [13] The motion for leave to appeal is granted. “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148 DATE: 20210309 DOCKET: C67495 & C67497 Strathy C.J.O., Benotto, Brown, Huscroft and Zarnett JJ.A. BETWEEN Ontario Nurses’ Association Applicant (Respondent/Appellant by way of cross-appeal) and Participating Nursing Homes Respondents (Appellants/Respondents by way of cross-appeal) and Service Employees International Union, Local 1 Respondent (Respondent/Appellant by way of cross-appeal) AND BETWEEN Service Employees International Union, Local 1 Applicant (Respondent/Appellant by way of cross-appeal) and Participating Nursing Homes Respondents (Appellants/Respondents by way of cross-appeal) and Ontario Nurses’ Association Respondent (Respondent/Appellant by way of cross-appeal) David M. Golden and Marco P. Falco, for the appellants/respondents by way of cross-appeal, the Participating Nursing Homes S. Zachary Green, Emily Bala and Carolyn L. Kay, for the appellant/respondent by way of cross-appeal, the Attorney General of Ontario Paul J.J. Cavalluzzo, Adrienne Telford and Lara Koerner Yeo, for the respondent/appellant by way of cross-appeal, the Service Employees International Union, Local 1 Janet Borowy, Danielle Bisnar, and Andrea Sobko, for the respondent/appellant by way of cross-appeal, the Ontario Nurses’ Association Lindsay Lawrence and Aaron Hart, for the respondent, the Pay Equity Hearings Tribunal Fay Faraday, for the intervener, the Equal Pay Coalition Heard: October 6 and 7, 2020 by video conference On appeal from the judgment of the Divisional Court (Regional Senior Judge Geoffrey B. Morawetz and Justices Robbie Gordon and Nancy L. Backhouse), dated April 30, 2019, with reasons reported at 2019 ONSC 2168, reversing in part a decision of the Pay Equity Hearings Tribunal, dated January 21, 2016, with reasons reported at [2016] O.P.E.D. No. 5. Benotto J.A.: OVERVIEW [1] The purpose of the Pay Equity Act , R.S.O. 1990, c. P.7 (the “Act”), is to redress systemic gender discrimination in compensation experienced by those in female job classes. To that end, the Act requires employers who are subject to the Act to “ establish and maintain compensation practices that provide for pay equity in every establishment of the employer” (emphasis added): Act, s. 7(1). [2] In establishing pay equity, three different methods of comparison are used. Each involves a comparison between male and female job classes. [3] In predominantly female workplaces, like the nursing homes in question, there are no male job classes with which female job classes can be directly compared. For women in these workplaces, the Act provides a “proxy” method whereby a female job class, from an establishment where pay equity has already been achieved using a male comparator, is deemed to be the male job class. [4] The parties in this case dispute whether the proxy method is to be used in ensuring that pay equity is maintained. The appellants, the Participating Nursing Homes (“PNH”) and the Attorney General of Ontario (“AGO”), submit that the proxy method is only to be used to establish pay equity, not to maintain it. The respondents, the Ontario Nurses’ Association (“ONA”) and the Service Employees International Union, Local 1 (“SEIU”), disagree. They submit that the proxy method must also be used to maintain pay equity, because otherwise there would be no ongoing male comparator, which is essential to identify and redress systemic discrimination in compensation. In their cross-appeal, they submit that if the Act is not interpreted as requiring the proxy method to be used in maintaining pay equity, then the Act contravenes s. 15 of the Charter of Rights and Freedoms . [5] The matter came before the Pay Equity Hearings Tribunal (the “Tribunal”) following applications by the ONA and the SEIU. The Tribunal did not agree that the proxy method was to be used to maintain pay equity and set out a formula for maintaining pay equity that did not include the proxy method. [6] The Divisional Court concluded that the Tribunal’s decision was unreasonable. It held that a proper interpretation of the Act requires ongoing access to male comparators – as set out in the proxy method – to maintain pay equity. The Divisional Court remitted the matter to the Tribunal to specify what procedures should be used to ensure continued access to male comparators. [7] For the reasons that follow, I conclude that the Tribunal’s decision is unreasonable, as the text, context, scheme and purpose of the Act make it clear that ongoing access to male comparators through the proxy method is required to maintain pay equity. I would dismiss the appeals and the cross-appeal. BACKGROUND The parties [8] The PN H are a group of employers that operate up to 143 for-profit nursing homes in Ontario. [9] The ONA is the bargaining agent for approximately 2,100 registered nurses and allied health professionals working at nursing homes across the province. The SEIU is the bargaining agent for registered practical nurses, personal support workers, health care aides, and dietary, housekeeping, and recreational aides working at the PNH. The SEIU and the ONA are referred to collectively as the Unions. [10] The AGO was added as an intervener by the Tribunal and also appeals. [11] The Tribunal and the Equal Pay Coalition were added as interveners by the Divisional Court and have made submissions before this court as well. Ontario’s pay equity legislation [12] The purpose of the Pay Equity Act is clear. The preamble provides that “it is desirable that affirmative action be taken to redress gender discrimination in the compensation of employees employed in female job classes in Ontario.” The body of the Act further confirms: 4 (1) The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes. [13] Section 1(1) of the Act specifies when a job class is a “female job class” and when it is a “male job class”. Generally speaking, a female job class is a job class in which 60 per cent or more of the members are female. Section 1(1) of the Act defines the term “job class” to mean “those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates”. [14] The Act imposes an obligation to both establish and maintain pay-equity-compliant compensation practices: 7 (1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer. [15] As explained in more detail below, systemic discrimination is identified by undertaking a comparison between female job classes and male, or deemed male, job classes in terms of compensation and the value of work performed: Act, ss. 4(2), 21.13. The criterion applied in determining the value of work is “a composite of the skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed”: Act, s. 5(1). [16] The Act prescribes three methods for achieving pay equity: the job-to-job, proportional value and proxy methods. [17] The job-to-job and proportional value methods involve comparing the value/compensation relationship of female job classes to the value/compensation relationship of male job classes within the employer’s establishment. An “establishment” means all of the employees of an employer employed in a geographic division or divisions. [18] The Act provides the proxy method for achieving pay equity in establishments without any male job classes. The proxy method is complex, but at its core, it involves comparing a female job class in the seeking employer’s establishment (in this case, the PNH) to a female job class at a proxy employer’s establishment (in this case, Municipal Homes for the Aged (“Municipal Homes”)). [19] A proxy female job class is used because it has already achieved pay equity by way of comparison to a male job class within the proxy employer’s establishment. The value/compensation relationship of the proxy female job class is compared to the value/compensation relationship of the female job class at the seeking employer’s establishment with a view to determining the adjustments necessary to achieve pay equity for the seeking employer’s employees. In short, the proxy female class functions as the “deemed” male comparator. [20] To achieve pay equity for all female job classes within the seeking establishment, the female job class that was compared to the proxy female job class becomes the “key female job class”. All other female job classes in the seeking establishment are then evaluated to ensure that the value/compensation relationship for their jobs is equal to that of the key female job class. The parties disagree on how to maintain pay equity [21] Employment in the nursing home sector is almost exclusively female. As a result, there are no male job classes available for purposes of comparison at the PNH, and they were required to use the proxy method in establishing pay-equity-compliant compensation practices for their employees. Municipal Homes were identified as a suitable proxy employer. They are similarly female dominated, but because they are operated by municipalities, there are male job classes available for comparison. [22] In 1994, the PNH took steps to establish pay-equity-compliant compensation practices for female employees using the proxy method. Following extensive negotiations, the Unions and the PNH reached an agreement. In accordance with the agreement, pay equity was established for all female job classes at the PNH by 2005, following adjustments to increase compensation for all the female job classes. [23] The Unions take the position that the PNH have failed to maintain pay-equity-compliant compensation practices since 2005. Over time, the Unions have observed several changes in PNH workplaces that suggest the value of the work performed by employees is increasing: a new legislative framework; new education requirements for employees; increasing acuity of nursing home residents; and more medical services required to meet the rising needs of residents. Employees at the Municipal Homes would have experienced the same workplace changes, increasing the value of their work. The Unions have also observed that wage gaps have re-emerged between PNH employees and employees at the Municipal Homes doing comparable work. Accordingly, it appeared to the Unions that the compensation of employees at the Municipal Homes had increased because of the ongoing access to male comparators. This prompted the ONA and the SEIU to bring applications to the Tribunal. [24] The Unions submit that since the PNH established pay equity using the proxy method, the Act requires that it be maintained using that same method because a lack of an ongoing connection to a male comparator will allow pay disparity to re-emerge. [25] The position of the PNH and the AGO is that the Tribunal’s maintenance method, which requires only a one-time comparison with a female job class in a proxy establishment (i.e., a deemed male comparator), is reasonable. The Tribunal’s decision is detailed below. Charter values and s. 15 Charter rights [26] The Unions have asserted throughout that the Tribunal and the courts must consider Charter values as an aid to interpret the Act – an argument that was accepted by the Divisional Court. They rely, in part, on this court’s decision in Taylor-Baptiste v. Ontario Public Service Employees Union , 2015 ONCA 495, 126 O.R. (3d) 481, leave to appeal refused, [2015] S.C.C.A. No. 412. In Taylor-Baptiste , the court had the following to say about Charter values in the administrative law context, at paras. 54-57: Their first submission is that an administrative tribunal can only consider Charter values in its decision-making if an ambiguity exists in the provision of its home or enabling statute at issue in a case…. Binding authority prevents the acceptance of the appellants’ submission.  Slightly more than a decade after deciding Bell ExpressVu , the Supreme Court rejected an argument similar to the appellants’ when, in R. v. Clarke , it stated, at para. 16: Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” ( Doré , at para. 24 ). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme. The appellants’ second submission is that the Charter values interpretive principle articulated in Doré only applies to instances where an administrative decision-maker exercises a discretionary power, such as crafting a remedy. They say it does not apply to the kind of adjudicative decision made by the Tribunal in this case – i.e. whether the respondents’ conduct violated s. 5(1) of the Code . While I take the appellants’ point that in both Doré and Loyola High School the Supreme Court frequently referred to the exercise of a discretionary power under a home statute, in my view the decision in Doré , when read as a whole, prevents the acceptance of the appellants’ submission.  First, in Doré the Court stated that “administrative decisions are always required to consider fundamental values” (emphasis in original). Second, the context which framed the court’s discussion in Doré was analogous to the present case – i.e. the determination by an administrative tribunal about whether a person’s conduct had violated the strictures of a statutory or regulatory rule. [Footnotes omitted.] [27] The Unions further submit on their cross-appeal that, if the Act does not require maintenance using the proxy method, the Act contravenes s. 15 of the Charter. [28] The PNH and the AGO submit that the Tribunal was not required to consider Charter values because, unlike in Taylor-Baptiste , there was no ambiguity in the statute. They further submit that if Taylor-Baptiste stands for the proposition that administrative actors must always consider Charter values when interpreting statutes, even in the absence of ambiguity, then Taylor-Baptiste was wrongly decided because it is inconsistent with Supreme Court authorities. Tribunal decision [29] The Tribunal dismissed the ONA’s and the SEIU's applications. [30] The Tribunal agreed that the Act imposed an obligation on the PNH to maintain pay-equity-compliant compensation practices, but rejected the submission that the proxy method should be used to fulfill that obligation. [31] The Tribunal found that the proxy method was “extraordinary”, and it viewed an ongoing requirement to obtain information from the proxy employer as “a substantial practical impediment”. The Tribunal concluded that the Act did not require the use of the proxy method for maintenance and added: “[t]he Act’s focus is on the specific compensation practices that determine what an employer pays its own female job classes in a given establishment.” The Tribunal stated: In summary, the Act’s obligation to maintain pay equity applies regardless of the methodology of comparison used. Pay equity that is achieved under a proxy plan must be maintained. Generally speaking, maintenance requires the on-going monitoring of any changes in either the compensation or the value (the amalgam of skill, effort, responsibilities and working conditions) of female job classes and the male job classes (including deemed male job classes) used for comparison purposes. In the case of proxy plans, however, maintenance does not require the monitoring of changes to the value or compensation of the female job classes in the proxy establishment. To so require would be inconsistent with the over-riding principle that the Act mandates each individual employer to whom it applies to ensure that its own compensation practices are free from gender discrimination. Instead, what is required is monitoring of the compensation and value relationship of the non-key female job classes and the key female job class as compared to the compensation/value relationship (PV line) that has already been determined to provide for pay equity. [32] The Tribunal addressed and rejected the Unions’ s. 15 Charter arguments. Divisional Court decision [33] The Divisional Court concluded that the Tribunal’s decision was unreasonable. The court determined that while the Act does not contravene s. 15 of the Charter , the Tribunal erred in failing to consider Charter values when interpreting the Act . [34] The Divisional Court relied on Taylor-Baptiste to reject the Tribunal’s position that statutory ambiguity was required before Charter values could be employed to interpret the Act . The Divisional Court considered it “settled law that administrative decision makers must balance the Charter values at play with the statutory objectives of the legislation in question.” [35] The Divisional Court proceeded to conduct its own Charter values analysis. Applying the framework from Doré v. Barreau du Québec , 2012 SCC 12, [2012] S.C.R. 395, the Divisional Court held that the Tribunal’s decision limited s. 15 of the Charter , because it denied “women in predominantly female workplaces (compared to women who have male comparators within their establishments) the right to maintain pay equity with reference to male work.” It noted that “[t]he fundamental precept of pay equity is that there should be equal pay for work of equal value between women and men” and that “[t]he touchstone of a pay equity analysis is the comparison to male work, as men enjoy the benefit of compensation tied to the value of their work as opposed to their gender.” [36] Further, it held that the Tribunal failed to balance the severity of the interference with s. 15 with the statutory objectives of the Act . The objectives of the Act include “to ensure such discrimination [in compensation] does not re-emerge.” The Tribunal failed to consider the discriminatory effects of its interpretation on women in female-dominated workplaces. The Tribunal’s interpretation denied these women the right to correct any pay gap that has re-emerged since 1994. Maintaining pay equity “by internal comparison of female job classes does nothing to ensure that the key female job class wage to which the other female classes are compared reflects any re-emergence of a pay equity gap since 1994.” [37] The court declined to send the matter back to the Tribunal for reconsideration given its conclusion that “the only proportionate balancing of the Charter right of equality with the statutory mandate of the Act , properly construed, requires the maintenance of pay equity in predominantly female workplaces through the proxy method of comparison.” The matter was remitted to the Tribunal to specify the procedures for maintaining pay equity using the proxy method. [38] The Divisional Court’s conclusion that the Act did not contravene s. 15 of the Charter was tied to its conclusion about the proper interpretation of the Act : We have considered whether the Act is discriminatory on its face because there is no mechanism spelled out in the Act for maintaining pay equity by reference to male work for women in predominantly female workplaces reliant on the proxy method. However, we have concluded that there is an interpretation of the Act that would render it non-discriminatory-namely , that the employer must maintain a compensation practice that involves ongoing comparison of the key female job class to a proxy female job class. Accordingly, we find that the Act does not contravene the Charter . [Emphasis added.] ANALYSIS [39] The question for this court is whether the Divisional Court was correct in concluding that the Tribunal’s decision was unreasonable. As I will explain, I agree with the conclusion that the Tribunal’s decision was unreasonable, although I reach that conclusion without relying on Charter values. As my answer to the question is “yes”, I need not deal with the s. 15 issue raised on the cross-appeal. Guiding principles [40] The focus of this court’s inquiry is the reasonableness of the Tribunal’s decision. This involves “stepping into the shoes” of the lower court and focusing on the Tribunal’s decision: Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-46. [41] An inquiry into the reasonableness of an administrative tribunal’s decision begins with Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1 . [42] Post- Vavilov, there is a single standard of reasonableness. At para. 89: [R]easonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that “[r]easonableness is a single standard that takes its colour from the context.” [Citations omitted.] [43] A tribunal’s governing statute is an important part of considering whether the tribunal’s decision was reasonable “in light of the relevant factual and legal constraints that bear on it.” Vavilov , at para. 108: Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. That administrative decision makers play a role, along with courts, in elaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures. [44] Vavilov reaffirms the “modern principle” of statutory interpretation, which requires that “the words of a statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament’”: Vavilov , at para. 117. [45] The administrative decision must be consistent with principles of statutory interpretation and be compliant with the “rationale and purview of the statutory scheme under which it is adopted”: Vavilov , at paras. 108, 118. As set out in Vavilov at para. 121: The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose , applying its particular insight into the statutory scheme at issue. [Emphasis added.] [46] Vavilov cautions that a reviewing court is not interpreting the statute de novo . Rather, the focus should be on the reasonableness of the administrative decision. In other words, the focus of the analysis is on why the Tribunal’s decision is unreasonable, not what this court would have decided in the Tribunal’s place. This is explained at paras. 115-116: Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions . Reasonableness review functions differently . Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan , at para. 50 . Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached. [Emphasis added.] [47] With these principles in mind, I turn now to explain why the Tribunal’s interpretation of the Act is unreasonable. The Tribunal’s maintenance method [48] The Tribunal held that “[i]t is possible to maintain pay equity without continuing resort to the compensation practices in the proxy establishment.” It explained in some detail how it thought that could be achieved: The initial comparison and adjustment of the value/compensation ratio of the key female job classes to match the value/compensation ratio of the proxy female job classes is capable of being expressed as a mathematical formula or equation. The equation may describe a gender neutral wage line capable of being plotted on a matrix where the increasing value of a job results in movement along the X axis, and where the increasing compensation rate of a job results in movement along the Y axis. The complexity of the equation will depend on the extent to which the slope of the wage line is other than constant. If it is constant, the relationship and the equation may be very simply expressed as one of $/point of value. Regardless of how the compensation/value equation is expressed, either of its variables may change over time, with the consequence that the other must also change if the same result is to be maintained . Subsequent to January 1, 1994, the two potential triggers engaging the obligation to maintain are: a change in the compensation of the key female job class; or a change in the value of any of the job classes in the seeking employer's establishment. Whenever the hourly rate for the key female job class increases without any increase in its value occurring, the $/point ratio will increase. Pay equity for the other female job classes will be maintained only if that new ratio also obtains for them, and their value has not changed. If the job duties and responsibilities of the key female job class change such that its point value increases, then its rate of compensation must also increase to maintain whatever $/point ratio is applicable at the time. The same is true for the other female job classes. [49] Thus, the Tribunal’s approach to maintenance is limited to an internal comparison between the key female job class and the non-key female job classes. In the Tribunal’s view, “ maintenance does not require the monitoring of changes to the value or compensation of the female job classes in the proxy establishment.” In other words, no ongoing comparison is made with the deemed male job classes in the proxy workplace. [50] In my view, the Tribunal’s interpretation – which deprives women in establishments without male job classes access to an ongoing deemed male comparator – is unreasonable as it ignores the purpose, scheme and plain wording of the Act. The Act requires female to male comparison [51] The scheme of the Act is built on the fundamental premise that in order to redress systemic gender discrimination in compensation, there must be a comparison between male and female job classes. [52] As set out above, the preamble to the Act and s. 4(1) confirm that the purpose of the Act is to redress systemic gender discrimination in compensation for employees in female job classes. [53] The Act itself indicates that comparison to male job classes is the way to identify systemic discrimination. Section 21.13 provides that, in establishments that use the proxy method, systemic discrimination is identified by comparing a female job class in the seeking establishment with a proxy female class (i.e., deemed male comparator): Systemic gender discrimination 21.13 For the purposes of this Part and despite subsection 4(2), systemic gender discrimination in compensation shall be identified by undertaking comparisons, in terms of compensation and in terms of the value of the work performed, using the proxy method of comparison, (a) between each key female job class in the seeking employer's establishment and female job classes in a proxy establishment; and (b) between the female job classes in the seeking employer's establishment that are not key female job classes and the key female job classes in that establishment. [54] Identifying gender discrimination is a key element of the establishment and maintenance of pay equity. Yet, the Tribunal did not consider this section of the Act which applies to establishments that use the proxy method. [55] The Tribunal’s failure to address s. 21.13 leads me to a loss of confidence in the outcome reached. Vavilov addresses this at para. 122: If, however, it is clear that the administrative decision maker may well, had it considered a key element of a statutory provision’s text, context or purpose, have arrived at a different result, its failure to consider that element would be indefensible, and unreasonable in the circumstances. Like other aspects of reasonableness review, omissions are not stand-alone grounds for judicial intervention: the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker. [56] The job-to-job and proportional value methods presume that there will be male job classes in the establishment that can be compared to female job classes. These methods are thus not suitable for female-dominated workplaces where there are no male job classes. Had the Tribunal relied on s. 21.13 - which provides that comparison with the proxy job classes is the way to identify systemic discrimination in establishments using the proxy method - it may well have arrived at a different result. [57] Beyond the requirement for comparison at the identification stage , pay equity is achieved when the required comparison is done, and any necessary adjustments are made: Achievement of pay equity 5.1 (1) For the purposes of this Act, pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job-to-job method of comparison , the proportional value method of comparison or, in the case of an employer to whom Part III.2 applies, the proxy method of comparison , and any adjustment to the job rate of each female class that is indicated by the comparison has been made. [Emphasis added.] [58] The proxy method was added to the Act specifically to provide for deemed male comparators for establishments where no male job classes exist. Part III.2 of the Act sets out how the comparison between the seeking employer and the proxy employer works and how the value/compensation relationship for the key female job class in the seeking employer’s establishment permits pay equity to be achieved for the rest of the female job classes in that establishment: Proxy method required 21.14(1) A seeking employer shall use the proxy method of comparison for all female job classes in an establishment. Proxy method described 21.15(1) Pay equity is achieved for a female job class in an establishment of a seeking employer under the proxy method of comparison, (a) in the case of a key female job class, (i) when the class is compared with those female job classes in a proxy establishment whose duties and responsibilities are similar to those of the key female job class, and (ii) when the job rate for the class bears the same relationship to the value of the work performed in the class as the pay equity job rates for the female job classes in the proxy establishment bear to the value of the work performed in those classes; and (b) in the case of any other female job class, (i) when the class has been compared with the key female job classes in the establishment of the seeking employer, and (ii) when the job rate for the class bears the same relationship to the value of the work performed in the class as the pay equity job rates for the key female job classes bear to the value of the work performed in those classes. Comparison methods (2) The comparisons referred to in subsection (1) shall be carried out using the proportional value method of comparison, (a) in the case of a comparison under clause (1)(a), as if the female job classes in the proxy establishment were male job classes of the seeking employer ; and (b) in the case of a comparison under clause (1)(b), as if the key female job classes of the seeking employer were male job classes of the seeking employer . Comparison system (3) The comparisons shall be carried out using a gender-neutral comparison system. [Emphasis added.] [59] As s. 21.15(2)(a) states, the female job classes in the proxy establishment are treated “as if [they] were male job classes of the seeking employer” for the purpose of comparison to a key female job class in the seeking establishment. The reason the proxy female job class serves as a deemed male job class is because it has already achieved pay equity by way of comparison to a male job class within the proxy employer’s establishment. Similarly, once the key female job classes have achieved pay equity, s. 21.15(2)(b) states that they are treated “as if [they] were male job classes of the seeking employer” for the purpose of comparison to any other female job classes within the seeking employer’s establishment. [60] The AGO submits that the Divisional Court disregarded the fact that the comparison under the proxy method happens between female job classes, and so there is no comparison between male and female work. I do not agree. While the direct comparison is between the key female job class in the seeking employer’s establishment and a deemed male comparator in the proxy establishment, women in the seeking employer’s establishment benefit from the fact that the deemed male comparator has direct access to a male comparator. This permits comparison between male and female work even if there is not a direct comparison, as under the proportional value or job-to-job methods. [61] To sum up, all three comparison methods involve a direct or indirect comparison between female and male job classes. As I will explain, it is unreasonable to interpret the Act as doing away with an ongoing deemed male comparator when it comes to the employer’s duty to maintain pay equity in female-dominated establishments that used the proxy method to establish pay equity. T he ongoing requirement for male comparators in maintenance [62] The Tribunal’s distinction between the application of Part III.2 to the obligation to establish pay equity and the obligation to maintain pay equity is not grounded in the plain language or scheme of the Act , which makes no such distinction between the methods to be used for establishing and maintaining pay equity. Nor is the distinction consistent with the purpose of the Act. [63] The Act is divided into various parts. Part I of the Act, entitled “General”, includes ss. 1-9 of the Act. Among other things, Part I sets out the purpose of the Act (s. 4(1)), and the employer’s duty to “establish and maintain compensation practices that provide for pay equity” (s. 7(1)). Both establishing and maintaining pay equity are directed at achieving the purposes of the Act, namely, to redress systemic discrimination in compensation. [64] Part I also explains how "pay equity is achieved” in s. 5.1(1): 5.1 (1) For the purposes of this Act , pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job-to-job method of comparison, the proportional value method of comparison or, in the case of an employer to whom Part III.2 applies, the proxy method of comparison, and any adjustment to the job rate of each female class that is indicated by the comparison has been made. [Emphasis added.] [65] I would make two observations about s. 5.1(1). [66] First, “achieve” in s. 5.1(1) is not synonymous with “establish” in s. 7(1). As a matter of statutory interpretation, “[i]t is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings”: Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Markham: LexisNexis, 2014), at 8.32. [67] Second, s. 5.1(1) opens with the words “[f]or the purposes of the Act”. The purposes of the Act include both establishing and maintaining pay equity. As such, the methods in s. 5.1(1) are not limited to establishing pay-equity-compliant compensation practices. Rather, they also apply in maintaining them. [68] Moreover, not using the proxy method to maintain pay-equity-compliant compensation practices would undermine the purpose of the Act. [69] The Supreme Court’s decision in Alliance demonstrates the inequity that arises when compensation for female employees is not tied to that for males on an ongoing basis: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux , 2018 SCC 17, [2018] 1 S.C.R. 464 . In Alliance , the court considered the maintenance provisions of the Quebec legislation, which required that women wait five years before applying for pay equity maintenance. At para. 38, the court identified the systemic nature of pay discrimination and how the impugned legislation created barriers to addressing the problem: Although the scheme purports to address systemic discrimination, it in fact codifies the denial to women of benefits routinely enjoyed by men – namely, compensation tied to the value of their work. Men receive this compensation as a matter of course; women, under this scheme, are expected to endure five-year periods of pay inequity, and to receive equal compensation only where their employer voluntarily acts in a non-discriminatory manner, or where they can meet the heavy burden of proving the employer engaged in deliberate or improper conduct. The scheme thus places barriers along the path to equal pay for women. [70] So too here. The Tribunal’s elimination of male comparators for women in predominantly female job classes places “barriers along the path” to equal pay for women. I will explain. [71] Alliance, and the Supreme Court’s companion decision, Centrale des syndicats du Québec v. Quebec (Attorney General) , 2018 SCC 18, [2018] 1 S.C.R. 522 (“ CSQ ”), explain that “‘women’s work’ is valued less than ‘men’s’.” Since the devaluation is systemic, it follows that it will continue to exist within the seeking employer's establishment after pay equity is established. Any internal adjustment to the value/compensation ratio in an establishment without male comparators will include systemic assumptions about the value of women's work and result in a smaller adjustment than if the work were valued in the same way that men's work is valued. [72] The importance of the male comparator is demonstrated by the fact that – in non-proxy cases – the Tribunal routinely uses the same method for maintaining pay equity as was used to establish pay equity in the first place: BICC Phillips (7 October, 1997) 0590-96 (P.E.H.T.); Canadian Union of Public Employees v. City of Peterborough, 2015 CanLII 55324 (P.E.H.T.); Ottawa Board of Education (28 May 1996) 0473-93; 0474-93; 0485-94; 0487-94 (P.E.H.T.); Ontario Secondary School Teachers’ Federation on behalf of the Educational Assistants Bargaining Unit v. Simcoe Muskoka Catholic District School Board , 2018 CanLII 123879 (P.E.H.T.) . [73] In recognition of the potential for systemic discrimination to re-emerge, in job-to-job and proportional value establishments there is continual reference back to the male comparators rather than setting a value/compensation ratio for the female job classes and maintaining pay equity only by reference to that initial ratio. The regular reference back to male comparators is undertaken because women's work continues to be systemically undervalued. A 1994 ratio cannot account for any devaluation that has taken place since that date. [74] Women in establishments without male comparators are most at risk of being affected by discrimination, as noted in CSQ , at para. 29: Moreover, since women in workplaces without male comparators may suffer more acutely from the effects of pay inequity precisely because of the absence of men in their workplaces, these categories single out for inferior treatment the group of women whose pay has, arguably, been most markedly impacted by their gender . [75] The Tribunal’s maintenance method fails to provide a means to redress systemic discrimination on an ongoing basis for these most vulnerable women. The Tribunal’s maintenance method assumes there is no discrimination unless the ratio used to establish pay equity is no longer being maintained. Under its method, which relies on an outdated comparison, re-emerging systemic discrimination would not be identified and addressed. [76] In explaining its reasons for rejecting the proxy method  for maintenance, the Tribunal describes a number of features of the Act, noting that in the context of the Act as a whole the proxy method is “extraordinary”. Among other things, the Tribunal states that “[t]he Act’s focus is on the specific compensation practices that determine what an employer pays its own female job classes in a given establishment.” It emphasizes what it describes as “the over-riding principle that the Act mandates each individual employer to whom it applies to ensure that its own compensation practices are free from gender discrimination” (emphasis in original). [77] With respect, the Tribunal lost sight of the fact that pay equity can be maintained internally when using the job-to-job and proportional value methods as a consequence of the fact that there are internal male comparators. The over-riding principle or purpose of the Act is not internal comparison but rather redressing systemic discrimination in compensation for work performed by employees in female job classes. [78] The Tribunal also made the point that the Act does not require wage parity, and it emphasized that not all differences in compensation are necessarily attributable to gender discrimination: The Act does not require wage parity as between different employers. Two different employers operating the same kind of business in the same geographic area may have pay-equity-compliant compensation practices even though the female job classes performing the same or substantially similar duties for each of those employers do not receive similar compensation. In other words, the Act contemplates that the rates of pay for the same or similar women's work may vary depending on the identity and characteristics of their employer . The Act recognizes that not all differences in compensation between comparably-valued men’s and women’s work (where the women’s work is paid less) in the same establishment are necessarily attributable to gender discrimination.  Section 8(1) of the Act outlines a number of situations where such difference(s) in compensation need not be redressed. [Emphasis in original.] [79] I accept that wage parity is not the measure of whether there is inequity in compensation that must be redressed. Rather, the Act provides that pay equity is achieved by using one of the three comparison methods and making the required adjustments, whether or not that results in parity between different employers. [80] I also accept that s. 8 expressly permits some differences in compensation: 8 (1) This Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of, (a)  a formal seniority system that does not discriminate on the basis of gender; (b)  a temporary employee training or development assignment that is equally available to male and female employees and that leads to career advancement for those involved in the program; (c)  a merit compensation plan that is based on formal performance ratings and that has been brought to the attention of the employees and that does not discriminate on the basis of gender; (d)  the personnel practice known as red-circling, where, based on a gender-neutral re-evaluation process, the value of a position has been down-graded and the compensation of the incumbent employee has been frozen or his or her increases in compensation have been curtailed until the compensation for the down-graded position is equivalent to or greater than the compensation payable to the incumbent; or (e)  a skills shortage that is causing a temporary inflation in compensation because the employer is encountering difficulties in recruiting employees with the requisite skills for positions in the job class. (2) After pay equity has been achieved in an establishment, this Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of differences in bargaining strength. [81] This section acknowledges that systemic discrimination continues to exist even though there are circumstances in which it does not follow necessarily that differences in compensation are the result of discrimination. [82] The Tribunal admitted that “there is no provision in Part III.2 that expressly constrains a seeking employer from requesting [the pay-equity-compliant rate for the proxy employer’s job classes] on an ongoing basis”. However, it was concerned that it would be “an onerous task for the proxy employer”. In its view, obtaining the necessary information from the proxy employer would be a “substantial practical impediment”. In any event, the Tribunal concluded that the Act did not require such information sharing. [83] As the Tribunal recognized, the Act does not constrain a seeking employer from requesting information from a proxy employer on an ongoing basis. Indeed, s. 21.17(1) provides a means for seeking employers to access necessary information about the compensation practices and working conditions within the proxy establishment. It is not limited to the “establishment" phase. Section 21.17(1) states that the purpose of getting such information is to make a comparison to a key female job class using the proxy method. Unreasonable Decision [84] As Vavilov instructs at para. 100, before a reviewing court can set aside a decision on the basis that it is unreasonable, the court “must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency.” While the Tribunal’s reasons are transparent and intelligible, there is nothing in the Act that would justify eliminating a male comparator for maintaining pay equity in establishments where the proxy method was used to establish pay equity. In my view, the only reasonable interpretation of the Act is that it requires the use of the proxy method in maintaining pay-equity-compliant compensation practices in such establishments. Charter Values [85] My conclusion that the Tribunal’s decision is unreasonable rests on the application of the modern principle of statutory interpretation. It is unnecessary to determine whether the Tribunal also erred in failing to take into account Charter values in interpreting the Act. While I leave the Charter values issue for another day, I would question the need to resort to a Charter values analysis in a situation like this one where the Charter value in question – equality – is consistent with the purpose of the legislation, which is to redress discrimination in compensation. Accordingly, there is no need to determine whether Taylor-Baptiste was wrongly decided on the question of Charter values. DISPOSITION [86] I would dismiss the appeals. [87] I agree with the Divisional Court that the matter should be remitted to the Tribunal to specify what procedures should be used to ensure that those employees, represented by the Unions, who have established pay equity through the proxy method, will continue to have access to male comparators to maintain pay equity. [88] I would also dismiss the cross-appeal. It is not necessary to address the cross-appeal, which was initiated if this court allowed the appeals. [89] I would invite submissions as to costs (limited to 5 p ages) within 15 days of the release of this decision. “M.L. Benotto J.A.” “I agree David Brown J.A.” “I agree “B. Zarnett J.A.” Huscroft J.A. (Dissenting): OVERVIEW [90] The legislative obligation in this case is clear. Section 7(1) of the Pay Equity Act , R.S.O. 1990, c. P.7, requires the parties to “establish and maintain compensation practices that provide for pay equity in every establishment of the employer”. But while the Act sets out several methods for establishing pay equity, it says nothing about how pay equity is to be maintained once it has been achieved. The question for the Pay Equity Tribunal was how compensation practices that provide for pay equity are to be maintained in workplaces where pay equity has been achieved by means of proxy comparison. [91] In order to answer this question, the Pay Equity Tribunal held hearings over a period of several days and heard not only from the parties but also the Attorney General for Ontario, who was granted permission to intervene in the proceedings. The Tribunal heard evidence from lay and expert witnesses concerning the operation of the homes party to this dispute; the relationship of the homes to the government; employment in the homes; the bargaining relationship of the workplace parties; and the negotiation of the parties’ pay equity plan in 1994, which culminated in the achievement of pay equity when the final pay adjustment was made in 2005. [92] The Tribunal wrote a lengthy and detailed decision that runs to 76 single-spaced pages. The decision reviews the history of the legislation, the study that gave rise to the amendments establishing the proxy comparison system, and the government’s various discussion papers and legislative statements. It also discusses the repeal of the proxy method and the decision in Service Employees International Union, Local 204 v. Ontario (Attorney General) (1997), 151 D.L.R. (4th) 273 (Ont. Sup. Ct.), which declared the repeal to be unconstitutional and of no force or effect. [93] The Tribunal analyzed the positions of the parties and reviewed its caselaw. Ultimately, the Tribunal decided not to adopt either of the parties’ positions. Instead, the Tribunal outlined a formula for compensation practices in the parties’ workplaces that maintains pay equity by maintaining the ratio between the hourly wage and the point value of the relevant job. The Tribunal explained the operation of this formula in a series of detailed examples. Finally, the Tribunal made an order requiring the parties to negotiate and endeavour to agree on an amendment to their pay equity plans to stipulate a Gender Neutral Comparison System (GNCS) and to apply it to determine whether any maintenance adjustments are required. [94] The majority of the court concludes that the Tribunal’s decision is unreasonable. Although they assert that the decision cannot identify and address re-emerging systemic discrimination, they do not say that it fails to maintain pay equity. Instead, they conclude that there is only one way in which pay equity is to be maintained – only one reasonable interpretation of the Act: if pay equity was established using the proxy comparison method set out in the Act, it must be maintained using the proxy comparison method. The Tribunal’s decision is unreasonable, the majority concludes, because it does not adopt this interpretation. [95] I disagree. [96] The Tribunal’s decision is thorough and cogent and makes sense of an extremely complicated legislative scheme. The decision reflects the Tribunal’s considerable expertise, not only in pay equity but also in the diverse labour relations contexts in which pay equity disputes arise – unionized and non-unionized workplaces, and workplaces where binding interest arbitration replaces the right to strike. It is entitled to deference from this court. I see no basis to conclude that it is unreasonable. [97] I would allow the appeal for the reasons that follow. I would not decide the cross-appeal without additional submissions from the parties. DISCUSSION The nature and purpose of reasonableness review [98] At the outset, it is important to review the nature and purpose of reasonableness review and to consider the changes wrought by the majority decision of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1. [99] Reasonableness review differs fundamentally from correctness review. Correctness review assumes a binary: decisions are either right or wrong, and it is the court’s task to ensure that wrong decisions are corrected, whether or not they appear to be reasonable or were made reasonably. In contrast, reasonableness review usually assumes a range of reasonable decisions, and the court’s task is to ensure that a particular decision is transparent, intelligible, and justified. Correctness review premises de novo review by the court, whereas reasonableness review involves scrutinizing the reasons for an administrative decision to see whether they justify that decision. [100] The key point is this: reasonableness is an inherently deferential standard of review. Where the reasonableness standard of review applies, courts are required to defer to and uphold decisions with which they may not agree, provided only that those decisions are reasonable. Correctness review involves no such compromise. [101] Vavilov does not alter the distinction between correctness and reasonableness review. The key change effected by Vavilov is the elimination of the contextual approach to selecting which standard of review applies. Henceforth, it is presumed that reasonableness review applies to the decisions of administrative decision makers. This presumption may be rebutted if the legislature has prescribed the relevant standard of review, as it may, for example, by establishing a right of appeal, in which case correctness review must be applied. [102] The presumption that reasonableness review applies may also be rebutted if the rule of law requires that correctness review be applied. Specifically, the presumption is rebutted for constitutional questions, questions of law that are of central importance to the legal system as a whole, and questions concerning the jurisdictional boundaries between two or more administrative bodies – questions for which the rule of law requires consistency and a final, determinate answer. These categories are not to be understood as closed, but nor are they to be expanded beyond their purpose: preventing the rule of law from being undermined and supporting the proper functioning of the justice system. [103] Much could be said about this, but for the purposes of this appeal there is no need to consider the requirements of either the rule of law or the proper functioning of the justice system. It is plain that the decisions of the Pay Equity Tribunal are subject to reasonableness review. The question is: how does reasonableness review operate? [104] Vavilov provides considerable guidance in this regard, but the essential nature of reasonableness review has not changed. Reasonableness review was, and remains, a deferential form of review. It is a form of review that “respects the distinct role of administrative decision makers”; involves “a minimum of judicial interference”; and requires a “posture of restraint” by the reviewing court: Vavilov , at paras. 75 and 24. As the Court reiterates, “[r]easonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process , ” Vavilov at para. 13 (emphasis added). [105] Vavilov confirms that the reasonableness of a particular decision is to be assessed having regard to the reasons proffered for that decision. The court is not to ask what decision it would have made and then compare the decision under review against the benchmark it has established. Nor is the court to identify the range of possible decisions that could have been made in order to see whether the decision under review falls within it. The question for the court is whether the decision under review is transparent, intelligible, and justified. [106] The underlying tension in Vavilov concerns the intensity of the reasonableness review the Court endorses. The Court reiterates that “[r]easonableness is a single standard that takes its colour from the context”, at para. 89, suggesting differing intensity of review, if not different standards, in different contexts:  see David Mullan, “Reasonableness Review Post- Vavilov : An “Encomium for Correctness”, or Deference as Usual?” (Paper delivered at the What Difference will Vavilov Make? Views from Workplace Law and Beyond Webinar, October 16, 2020) at pp. 16-17. Be that as it may, reasonableness remains a deferential form of review, substantially different from correctness, as the Court’s emphasis on concepts such as “respect” and “restraint” demonstrates. At the same time, however, the Court describes reasonableness as a “robust” form of review: Vavilov , at para. 13. [107] To the extent that the adjective “robust” simply emphasizes that reasonableness review is not to function as a rubber stamp, no problem arises. But it must be acknowledged that there are statements in the majority decision that appear to be in tension with the concept of deference. For example, the Court speaks of constraints on administrative decision makers and, significantly, states that there will sometimes be only one reasonable interpretation of a statutory provision: Vavilov , at paras. 90 and 110. This seems unobjectionable in theory; the legislature is usually able to make its intention clear. But how is a court to conclude there is but one reasonable interpretation if it is not to perform de novo analysis or determine the correct interpretation of the legislation itself, which the Court specifically precludes? The Court acknowledges the problem but states simply: “it may sometimes become clear in the course of reviewing a decision that the interplay of text, context and purpose leaves room for a single reasonable interpretation”: Vavilov , at para. 124. [108] This statement must be read in the context of the Court’s endorsement not only of deference, but also of the continued importance of an administrative decision maker’s expertise. Although expertise is no longer a relevant consideration in determining which standard of review applies, it remains important to the manner in which reasonableness review is conducted. Specialized knowledge matters. As the Court emphasized at para. 93: In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This is an important admonition that in my view should be heeded in this case. [109] Courts lack the expertise that specialist administrative decision makers have; they simply do not know what they do not know about the way in which a complex regulatory scheme such as pay equity operates. Of course, this is not a reason for a reviewing court to conclude that any and all decisions from  specialized tribunals are reasonable; it is, however, a reason for the court to exercise considerable caution before concluding that a particular decision is unreasonable, especially if in making that decision the tribunal is acting within the sphere of its specialized knowledge, carrying out its mandate to create solutions to problems. The Pay Equity Tribunal’s decision [110] As Vavilov instructs, the court’s focus on judicial review must be on the Tribunal’s reasons. The court needs to understand how the Tribunal reached its decision before it can determine whether that decision is reasonable. [111] After noting the absence of a definition of “maintenance” in the Act, the Tribunal reviewed all of the provisions and regulations in which the term appears and found that none of them provided any indication of how pay equity was to be maintained. Thus, the Tribunal stated that “the scope of [the obligation to maintain pay equity] must be ascertained from a consideration of the Act as a whole,” and that the plain meaning of the word “maintain” suggests that “the obligation is to continue the compensation/value relationship that is established when a female job becomes pay equity compliant.” There is nothing unreasonable in any of this. [112] The Tribunal reviewed its caselaw and adopted the approach taken in previous cases: “maintenance is the means by which an employer ensures that compensation practices are kept up-to-date and remain consistent with pay equity principles”. The Tribunal distinguished maintenance of pay equity from the sorts of change in circumstances that require a formal review or reposting of a pay equity plan – for example, changes in the operational structure of an establishment, the unionization of an employer, or the merger of employers. The Tribunal found that the changes alleged in this case – changes to job responsibilities or educational requirement of the job classes and changes in the acuity and demands of the patients in the homes – were the sorts of changes that had to be addressed in the pay equity maintenance process. [113] The problem was that the way in which the parties developed their pay equity plan in this case rendered it difficult to measure the value of work performed on an ongoing basis. As outlined below, the parties did not agree to a GNCS, nor did they evaluate any job classes. Thus, even assuming that their pay equity plan was accurate when the agreement was made, the Tribunal could not be certain that it remained so. [114] The Tribunal considered and rejected the parties’ focus on compensation changes as the only variable with which the maintenance obligation is concerned because it failed to address changes in what the Tribunal identified as the key variable: the value of the job classes. The Tribunal rejected the employers’ argument that across-the-board wage increases could maintain pay equity; this was true only if the value of the job classes in the seeking establishment remained unchanged. Similarly, the Tribunal rejected the unions’ argument that wage differences between employees in Municipal Homes versus the homes in this case meant that pay equity was not being maintained; the Act requires an assessment not simply of whether compensation has changed, but whether the relative value of job classes compared to their compensation has changed. [115] The Tribunal found that wage rates for the same job class varied from one home to another and that implementation of pay equity adjustments did not lead to uniform pay rates across the homes. Further, although a number of changes occurred since the pay equity plan was executed, those changes have not been addressed in the interest arbitration process. A pay gap between wages and benefits in the homes and in the Municipal Homes developed and increased. That being said, the Tribunal emphasized that the obligation to maintain pay equity was more than simply accounting for changes in compensation and had to be capable of application to all public sector workplaces – both union and non-union, and regardless of the operation of interest arbitration. [116] The Tribunal reiterated the importance of monitoring job duties and responsibilities to ensure that comparator job classes remain appropriate, while noting the difficulty in doing so: although compensation rates are in the public domain, information about changes in job duties and responsibilities is not. The proxy employer’s obligation to maintain pay equity in its own establishment makes it difficult to determine the pay equity compliant rate for its job classes at any given time. The Tribunal considered that there was “a substantial practical impediment” to obtaining information to enable a proxy plan to be updated or maintained to reflect changes in the value or compensation rates for the proxy female job classes. But this was not what the Act requires in any event: the focus of the Act is on the compensation practices specific to individual establishments. [117] The Tribunal found that pay equity can be maintained for both non-key female job classes and the key female job class without continuing resort to the compensation practices in the proxy establishment. Pay equity is to be maintained by on-going monitoring of changes to either the compensation or the value of female and male job classes (including deemed male job classes). The Tribunal sets out a detailed and specific methodology and illustrates its operation with several specific examples. [118] Finally, the Tribunal concluded that changes in the clientele and the duties performed in the homes may impact the value of the job classes, but the pay equity consequences could be determined only by evaluating the job information using a GNCS, which the parties’ plans lacked. Accordingly, the Tribunal ordered the parties to negotiate and endeavour to agree on an amendment to their pay equity plans to stipulate a GNCS and to apply it to determine whether any maintenance adjustments are required. The Tribunal’s decision is reasonable [119] I repeat what I said at the outset: the Tribunal’s decision is thorough and cogent. It makes sense of an extremely complicated legislative scheme, a scheme with which the courts have virtually no familiarity. The Tribunal’s decision reflects its considerable expertise, not only in pay equity but also in the diverse labour relations contexts in which pay equity disputes arise – unionized and non-unionized workplaces, and workplaces where binding interest arbitration replaces the right to strike. I see no basis to conclude that the decision is unreasonable. [120] There is no doubt that the unions prefer proxy methodology because they suppose that it will yield greater monetary benefits. But as the Tribunal was at pains to point out, the pay equity obligation established by the Act is establishment-specific. The Act is not designed to deliver wage parity; it is designed to require pay equity compliant compensation practices in each establishment covered by the Act. This may well mean different pay rates for female job classes across employers – differences that may be the result of unionization and the nature of bargaining unit configurations in different workplaces. [121] The importance of changes in the value of work performed is key to the Tribunal’s decision. And this case was difficult, among other reasons, because the parties did not follow the prescribed procedure in making their pay equity agreement. They did not agree to a GNCS. They did not evaluate any job classes on the basis of the skill, effort, responsibility and working conditions in the seeking or proxy establishments. Instead, they simply negotiated a pay equity settlement based on the assumptions that the employees possessed similar skills whether they worked in a Municipal or private home; they performed the same duties under the same conditions; and that their work was of the same value to Municipal and private homes. Their negotiated settlement was deemed approved despite technical non-compliance with the Act and its validity was not challenged in these proceedings. But in the absence of a GNCS the Tribunal could not be sure that the assumptions on which the Proxy Plans were based were accurate when the plans were developed or that they remained accurate in any event. [122] The majority concludes not only that the Tribunal’s decision is unreasonable, but also that there is only one reasonable interpretation of the statutory requirement to maintain pay equity: in an establishment in which pay equity was achieved using the proxy method, it must be maintained by using the proxy method. According to the majority reasons, the Tribunal’s decision “ignores the purpose, scheme and plain wording of the Act”. [123] With respect, I disagree. [124] The Tribunal cannot be said to have ignored anything, let alone the “purpose, scheme and plain wording of the Act”. It fully understood the problem before it. As the Tribunal stated, the purpose of the Act is “to redress systemic gender discrimination in compensation”. The proxy method was established precisely because the job-to-job comparison method could not achieve this purpose. As for the “plain wording” of the Act, the difficulty presented by this case is the absence of plain wording: although the Act mandates the maintenance of pay equity, it says nothing about how it is to be maintained. [125] It may well seem counterintuitive that pay equity achieved in one manner should not be maintained in the same manner. But the Tribunal considered that approach and explained why it was neither practical nor necessary to use the proxy method to maintain pay equity. Differences arising in the compensation/value relationship in a proxy employer may be attributable to bargaining strength rather than systemic discrimination. They may also be attributable to other non-discriminatory reasons, even if the employees are performing work of the same value. This is a problem because the Pay Equity Act is not intended to redress differences in pay across employers per se ; it is intended to address only those differences that are the result of systemic discrimination. Nor is the Act intended to establish industry or sectoral wage standards. [126] The majority acknowledges this point but does not follow through on the implications. Regardless of how pay equity is established, the obligation to establish and maintain pay equity falls on individual employers. This is the sense in which the Tribunal refers to the proxy methodology as “extraordinary”: although the obligations to establish and maintain pay equity apply to individual employers and their establishments, where the proxy methodology applies pay equity is established having regard to the practices of a different, unrelated employer. [127] The Tribunal specifically considers and rejects the interpretation the majority concludes is the only reasonable one available. Although the majority sets out the relevant passages from the decision in which the Tribunal outlines and explains its formula for maintaining pay equity, they do not engage with the Tribunal’s reasons. Significantly, the majority does not say that the Tribunal’s methodology would not maintain pay equity at the Homes. [128] The majority criticizes the Tribunal for failing to address s. 21.13, which it says leads to a loss of confidence in the Tribunal’s decision. But the Tribunal devotes numerous pages to explaining the operation of the proxy system and its purpose in redressing systemic discrimination. There is no basis to suggest that the Tribunal misunderstood its mandate and no basis to lose confidence in its decision. The Tribunal’s decision is sensitive to the purpose and scheme of the Act throughout. [129] The majority’s argument is not advanced by the general wording of s. 5.1(1), and in particular introductory words “[f]or purposes of this Act”, nor by purported distinctions between the terms “achieve”, “establish”, and “maintain”. It is simply asserted that the Tribunal’s method would not identify and address re-emerging systemic discrimination. [130] The premise underlying the majority reasons is that the Tribunal has eliminated male comparators for women in predominately female job classes.  The problem with this premise is that the proxy method operates without comparison to male job classes in the proxy establishment. The comparison is with the key female job class in the proxy employer, in which pay equity has been achieved. That class is treated as though it is a male job class in the seeking employer’s establishment, and then used to establish pay equity in the various female job classes. There is no obvious reason why maintenance of the compensation/value ratio established by the proxy comparison would not maintain pay equity in the relevant establishment, regardless of the absence of male comparators. [131] At the end of the day, the Tribunal’s decision identifies the relevant issues and engages with the legislation and the arguments of the parties in a manner that is sensitive to the purpose of the Act and the proxy system in particular. The Tribunal was faced with a particular problem in this case: the parties negotiated a settlement of their pay equity issues in 1995 rather than following the proxy methodology prescribed in the Act. In the absence of a GNCS, the consequences of changes since the pay equity agreement was negotiated could not be ascertained. Accordingly, the Tribunal ordered the parties to negotiate and endeavour to agree on an amendment to their pay equity agreement to stipulate a GNCS and apply it to determine whether any maintenance adjustments were necessary. There is nothing unreasonable in this. [132] The Tribunal’s reasons are comprehensive. The Tribunal reviews the positions of the parties and explains why it rejects them. It explains and demonstrates the operation of its formula for maintaining pay equity, which uses a value/compensation ratio for the key female job classes to maintain pay equity in all of the female job classes in the seeking employer. There is no failure of internal rationality nor are the Tribunal’s reasons marred by any logical fallacies. In short, the decision is reasonable and should be upheld. With respect, the majority reasons lose sight of the purpose of reasonableness review and ultimately collapse into correctness review. It is significant that the word “deference” is nowhere to be found in the majority reasons. [133] Care must be taken in deciding that there is but one reasonable interpretation of a complicated regulatory regime such as pay equity. There may well be only one reasonable interpretation of rule-like language in a statute – “precise and narrow” language, as the court put it in Vavilov at para. 110 ­– but there is no such language at issue in this case. I do not accept that the Tribunal has profoundly misunderstood and undermined its mandate, as the majority reasons suggest. The Tribunal’s decision accords with the longstanding understanding at the Pay Equity Commission, which was set out in A Guide to Interpreting Ontario’s Pay Equity Act , as well as the Ministry of Labour’s 1992 “Discussion Paper on Pay Equity: Implementing Proxy Comparisons”, both of which contemplated onetime-only comparisons with the proxy employer in order to establish pay equity. These are not binding sources of law, of course, but they lend further support to the conclusion that the Tribunal’s decision is reasonable. [134] I conclude that the Tribunal’s decision is reasonable. The Charter arguments [135] This court granted leave to appeal from the decision of the Divisional Court and constituted a five-member panel to hear this appeal because this court’s decision in Taylor-Baptiste v. Ontario Public Service Employees Union , 2015 ONCA 495, 126 O.R. (3d) 481, was challenged. The respondents cross-appealed, arguing that if the Tribunal’s decision was not unreasonable, then the Act violated the Charter . [136] The majority concludes that it is unnecessary to address the Charter values or the Charter violation arguments in light of its decision that the Tribunal’s decision is unreasonable. My conclusion that the Tribunal’s decision was not unreasonable renders it necessary for me to address the Charter arguments, and I do so below. [137] I conclude that Charter values are relevant to statutory interpretation only where genuine ambiguity exists. To the extent that Taylor-Baptiste says otherwise, it should not be followed. [138] I would not decide whether the legislation violates the Charter without further submissions from the parties. The Divisional Court erred in applying Charter values [139] The Tribunal considered and rejected the argument that Charter values applied so as to alter its interpretation of the Act. The Tribunal found that resort to Charter values as an interpretive aid is warranted only in the case of ambiguity and that the Pay Equity Act was not ambiguous. [140] With respect, the Divisional Court erred in concluding that the Tribunal was required to consider Charter values in interpreting the relevant provisions of the Pay Equity Act . There was no basis to invoke Charter values, still less to conclude that the Tribunal’s decision was at odds with the Charter value of equality in any event. [141] The Divisional Court followed this court’s decision in Taylor-Baptiste . In that case, the court acknowledged that the interpretive principle established in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, applies in the context of the exercise of discretionary authority by administrative decision makers but asserted that, read as a whole, Doré requires Charter values to be considered in determining whether a person’s conduct violated a statutory or regulatory rule. I set out the relevant passages from the court’s decision for convenience, at paras. 54-58: Their first submission is that an administrative tribunal can only consider Charter values in its decision-making if an ambiguity exists in the provision of its home or enabling statute at issue in a case…. Binding authority prevents the acceptance of the appellants’ submission. Slightly more than a decade after deciding Bell ExpressVu , the Supreme Court rejected an argument similar to the appellants’ when, in R. v. Clarke , it stated, at para. 16: Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” ( Doré , at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme. The appellants’ second submission is that the Charter values interpretive principle articulated in Doré only applies to instances where an administrative decision-maker exercises a discretionary power, such as crafting a remedy. They say it does not apply to the kind of adjudicative decision made by the Tribunal in this case – i.e. whether the respondents’ conduct violated s. 5(1) of the Code . While I take the appellants’ point that in both Doré and Loyola High School the Supreme Court frequently referred to the exercise of a discretionary power under a home statute, in my view the decision in Doré , when read as a whole, prevents the acceptance of the appellants’ submission. First, in Doré the Court stated that “administrative decisions are always required to consider fundamental values” (emphasis in original). Second, the context which framed the court’s discussion in Doré was analogous to the present case – i.e. the determination by an administrative tribunal about whether a person’s conduct had violated the strictures of a statutory or regulatory rule. [Footnotes omitted.] [142] With respect, these passages misstate the law. The limited role of Charter values in interpreting legislation was outlined by the Supreme Court in Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559. In that case, Iacobucci J., writing for the Court, stated at para. 62: Statutory enactments embody legislative will. They supplement, modify or supersede the common law. More pointedly, when a statute comes into play during judicial proceedings, the courts (absent any challenge on constitutional grounds) are charged with interpreting and applying it in accordance with the sovereign intent of the legislator.  In this regard, although it is sometimes suggested that “it is appropriate for courts to prefer interpretations that tend to promote those [ Charter ] principles and values over interpretations that do not” (Sullivan, supra , at p. 325), it must be stressed that, to the extent this Court has recognized a “ Charter values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations. [Emphasis in original] [143] In short, Charter values are relevant only to the interpretation of legislation that is genuinely ambiguous. The same rule applies for administrative decision makers as for courts: Wilson v. British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 47, [2015] 3 S.C.R. 300. [144] This approach is hardly surprising. Statutory interpretation is concerned with identifying and giving effect to the intention of the legislature. The Charter does not change this. If legislation is in some way inconsistent with the Charter it is of no force or effect to the extent of the inconsistency, but before that conclusion is reached the legislation may be defended on the basis that it establishes a reasonable limit on the Charter right at stake. It is no part of the interpreter’s task to preclude a finding of inconsistency with the Charter , or the attendant consequences, by interpreting legislation so as to avoid that inconsistency. The exception is for legislation that is ambiguous, and the ambiguity must be genuine . Iacobucci J. describes genuine ambiguity as arising when a statutory provision is “subject to differing, but equally plausible , interpretations” (emphasis added): Bell ExpressVu at para. 62. Charter values are not to be used “to create ambiguity where none exists”: R. v. Clarke , 2014 SCC 28, [2014] 1 S.C.R. 612, at para. 1. [145] The narrowness of the concept of ambiguity must be emphasized, for ambiguity is a concept that is often misunderstood. Genuine ambiguity in a statute is rare; it arises only where the legislature has failed to specify between two – rarely more – meanings that are semantically possible. Ordinarily, ambiguity can be resolved using the tools of statutory interpretation; read in context, the legislature’s intended meaning will usually be the only plausible meaning, and hence the meaning that must be adopted. In those rare circumstances in which the intention of the legislature cannot be inferred it is sensible to adopt the interpretation that conforms to Charter values rather than the one that does not: the legislature could be presumed to have intended to adopt the plausible interpretation that is consistent with Charter values. [146] Ambiguity is often confused with vagueness, but the terms are not interchangeable. The various forms of indeterminacy and helpful academic authorities are discussed by Miller J.A. in Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation , 2018 ONCA 555, 142 O.R. (3d) 542, at paras. 44-48. Unlike ambiguity, vagueness is anything but rare; indeed, vagueness is ubiquitous in many fields of regulation governed by standards rather than rules. Vaguely worded legislation has a core of determinate or clear meaning, but a penumbra that may be quite large; its application is to this extent underdetermined . Legislative standards are often underdetermined, but this is usually resolved by caselaw that develops meaning of the vague standard. The “duty to bargain in good faith” is a well-known concept in labour relations law that is vague, not ambiguous; its meaning is fleshed out in the caselaw of the Labour Relations Board, the expert body charged with responsibility for interpreting and applying, and so developing, the duty. [147] The essential purpose of statutory interpretation was not altered by passage of the Charter . Administrative decision makers and courts must determine and give effect to the intention of the legislature. They are neither mandated nor permitted to disregard the intention of the legislature in order to give effect to Charter values. Indeed, the Charter does not require the court to interpret legislation in a manner consistent with the rights it specifically protects. [148] In this regard, the Charter differs from the New Zealand Bill of Rights and the UK Human Rights Act , both of which require courts to interpret legislation in a manner consistent with the rights they protect. But the difference between the Charter and these rights instruments is significant: only the Charter authorizes courts to refuse to give effect to legislation that is inconsistent with the protected rights. The requirement of rights-consistent interpretation is not part of the Canadian approach to statutory interpretation because it is necessary to give effect to both the intention of the legislature and the supremacy of the Constitution. Put another way: the consequences of inconsistency with the Charter are not to be avoided by a strategy of adopting rights-consistent interpretations regardless of the legislature’s intentions. [149] Bell ExpressVu is well-established authority that has been upheld consistently: see R. v. Rodgers , 2006 SCC 15, [2006] 1 S.C.R. 554, Clarke , and Wilson . It was relied on by this court in Ontario Medical Association v. Ontario (Information and Privacy Commissioner) , 2018 ONCA 673, 427 D.L.R. (4th) 67, at para. 20, and recent decisions of this court including Gehl v. Canada (Attorney General) , 2017 ONCA 319, 138 O.R. (3d) 52; E.T. v. Hamilton-Wentworth District School Board , 2017 ONCA 893, 140 O.R. (3d) 11; and McKitty v. Hayani , 2019 ONCA 805, 439 D.L.R. (4th) 504 all contemplate a limited role for Charter values and a limited conception of them. [150] To the extent that Taylor-Baptiste suggests that Charter values have a role to play in statutory interpretation in the absence of ambiguity, it is inconsistent with this authority and should not be followed. [151] The interpretation of legislation – even vaguely-worded legislation – does not constitute an exercise of discretionary decision-making authority to which Charter values apply. Although vagueness connotes a range of decisions that may be made, that range is always understood in the context of the intention of the legislature. The interpretive exercise is different in kind from the exercise of authority to make a discretionary decision or to exercise discretionary remedial authority. [152] I would add this: the application of Charter values is often problematic because of the failure to appreciate the difference between concepts such as rights and values. The terms are often used interchangeably but they are not interchangeable. The Charter is an exhaustive statement of the rights and freedoms it protects. In contrast, there is neither a list of Charter values nor a canonical formulation of them: McKitty at para. 95, per Miller J.A. Such values as have been recognized – things such as dignity; privacy; autonomy; and fairness – are general and abstract concepts. Although they trade on the Charter adjective, they are not Charter rights . They are, in general, reasons for Charter rights – reasons that help explain why certain rights were accorded constitutional protection. [153] The underlying reasons for protecting rights are invariably broader than the rights themselves. Consider the concept of dignity. People have rights, we might say, because they are possessed of inherent human dignity. But the claims of morality are not coextensive with the requirements of legality; not all moral claims find expression in constitutionally protected legal rights. Thus, although the decision to extend constitutional protection to particular rights arises out of respect for human dignity, human dignity is not a freestanding right or freedom under the Charter . It is not justiciable per se . Care must be taken in identifying and applying Charter values, lest they supplant the rights from which they are inferred. [154] Equality seems to be an uncontroversial Charter value; it appears to be identical to the Charter right. But what work is the concept of equality doing when it is invoked as a value as opposed to a right? The Charter value of equality is necessarily broader than the Charter right to equality – a right that is limited not only by the text of s. 15 but also by decisions of the court emphasizing the negative purpose of the provision in preventing discrimination on enumerated and analogous grounds. And of course, s. 15 is, like all Charter rights, subject to such reasonable limits as may be imposed in a free and democratic society, pursuant to s. 1. [155] The Divisional Court demonstrates the problem of invoking Charter values as interpretive imperatives by invoking “equality” to overturn the interpretation of human rights legislation by a specialized human rights tribunal whose decision was entitled to deference. If the Act is considered problematic on equality grounds because of the way in which it requires the maintenance of pay equity, the constitutionality of the Act may be challenged. That challenge should not be preempted by invoking the Charter value of equality to alter the proper operation of the Act. [156] In summary, there is no ambiguity in the relevant Pay Equity Act provisions and hence it was wrong for the Divisional Court to invoke Charter values in interpreting the Act so as to override the Tribunal’s decision. Taylor-Baptiste should not be followed. The Tribunal’s decision is reasonable and should be upheld. The cross-appeal [157] Since the hearing of this case, the Supreme Court released its decision in Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1. I would not decide the cross-appeal without inviting submissions from the parties concerning the effect of this case. Released: March 09, 2021       “GRS” “Grant Huscroft J.A.” “I agree G.R. Strathy C.J.O.”

COURT OF APPEAL FOR ONTARIO CITATION: Orillia (City) v. Metro Ontario Real Estate Limited, 2021 ONCA 291 DATE: 20210506 DOCKET: C67924 Feldman, Simmons and Harvison Young JJ.A. BETWEEN The Corporation of the City of Orillia Applicant (Appellant/ Respondent by way of cross-appeal) and Metro Ontario Real Estate Limited Respondent (Respondent/ Appellant by way of cross-appeal) AND BETWEEN Metro Ontario Real Estate Limited Applicant (Respondent/ Appellant by way of cross-appeal) and The Corporation of the City of Orillia Respondent (Appellant/ Respondent by way of cross-appeal) Robert Wood, for the appellant/respondent by way of cross-appeal Krista Chaytor and Caitlin Steven, for the respondent/appellant by way of cross-appeal Heard: November 3, 2020 by video conference On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, dated December 20, 2019, with reasons reported at 2019 ONSC 7467, 15 R.P.R. (6th) 78. Harvison Young J.A.: A. Overview [1] This appeal and cross-appeal arise out of a commercial lease of a grocery store in a shopping centre. The appellant landlord, the City of Orillia, appeals the judgment of the application judge who found in favour of the respondent Metro’s position that an amendment of the period of the lease was ambiguous and considered extrinsic evidence that supported Metro’s submission as to the ultimate term of the lease. Metro cross-appeals from the judgment dismissing its claims against Orillia in relation to certain other issues. B. Background [2] The issue on the main appeal is the expiry date of the lease. The original lease commenced on March 1, 1979 with an initial term of 25 years. The expiry date was February 28, 2004. Metro also had a right to five successive renewal periods of five years each. Thus, the ultimate expiry date was to be February 2029, or a maximum of 50 years from the date the lease commenced. [3] In 1999, when Metro was planning the construction of an approximately 10,000 square foot addition, the parties negotiated an amendment to the lease which, among other things, extended the term of the lease by ten years, commencing on March 1, 2004 and expiring on February 28, 2014. The amendment gave Metro the option to extend the term of the lease for three additional periods of five years each for a total of five options or 25 years. Orillia brought an application for a declaration that the maximum term of the lease is 50 years, expiring in 2029. At the application hearing and in the main appeal, Orillia argued that the lease expires, at the latest, in February 2029, while Metro argued that the lease extends until February 2039, at the latest. [4] The central issue on the cross-appeal is which party has the obligation to replace the roof of the grocery store. Starting in 2016, the roof of the grocery store began leaking, and Metro had to replace many of the ceiling tiles in the store. Months later, Metro determined that the roof needed to be replaced. Orillia took steps to implement a roof overlay solution but later asserted that it had no obligation to repair the roof. Metro brought an application requesting, among other things, an order requiring Orillia to replace the roof. At the application hearing and in the cross-appeal, Metro alleged that under the lease, Orillia had an obligation to replace the roof, while Metro only had an obligation to repair the roof. Orillia disagreed and argued that the roof, whether it requires repair or replacement, is Metro’s responsibility. [5] For the reasons that follow, I would allow the main appeal and dismiss the cross-appeal, both in favour of Orillia. (1) The decision below [6] The applications of Orillia and Metro were heard together. On the lease expiry date issue, the application judge dismissed Orillia’s application and declared, in favour of Metro, that the lease would expire in 2039 at the latest. He found that the lease was ambiguous because there were two reasonable interpretations of the lease term clauses. [7] The first interpretation, advanced by Orillia, was that the maximum 50-year term of the lease was not altered by the amendment. Section 2 of the amendment, which extended the term of the original lease by ten years from 2004 to 2014, reflected the exercising of two of the five five-year renewal options under s. 3(2) of the original lease. Section 3 of the amendment, which stated that Metro had the option to further extend the term for three additional periods of five years each for a total of five options or 25 years, reflected the fact that three renewal options remained, so that the lease would expire in 2029 at the latest. [8] The second interpretation, advanced by Metro, was that the parties wanted to extend the length of the lease. Section 2 of the amending agreement added an additional ten years to the maximum potential length of the lease, and s. 3 of the amending agreement reflected that five five-year renewal periods remained after 2014, so that the lease would expire in 2039 at the latest. Section 3(3) of the original lease providing for a 50-year maximum term was altered by s. 6 of the amending agreement, which provided that the original lease is amended where necessary to give effect to the amendments. [9] The application judge found that the factual matrix did not help resolve the ambiguity in the lease. As a result, the application judge examined the extrinsic evidence. He found that the extrinsic evidence, including the notice of lease registered on title and an estoppel certificate (both of which stated that the lease could be extended to 2039), supported Metro’s position that the amendment extended the maximum length of the lease by ten years. [10] On the roof issue, in brief reasons, the application judge dismissed Metro’s application and determined that Orillia did not have any duty to replace the roof. He concluded that Metro’s obligation to maintain and repair the “Leased Premises” under s. 14(1)(a) of the lease included the roof. The application judge did not think that there was any legitimate basis to distinguish that clause because it says “repair” rather than “replace”. (2) Issues on appeal [11] Orillia makes four arguments on appeal: · The application judge erred in determining the lease was ambiguous; · The application judge erred in his consideration of the factual matrix; · The application judge erred in his treatment of the extrinsic evidence; and · The application judge erred in his consideration of commercial reasonableness. [12] Metro makes two arguments on their cross-appeal, although the parties reached an agreement on the second issue during oral argument: · The application judge erred in finding that Orillia does not have a duty to replace the roof; and · The application judge erred in finding that Metro does not have a property interest in the Triangle Land. (3) The parties’ positions [13] On the main appeal, Orillia argues that the application judge committed an extricable error of law when he found an ambiguity, as he failed to interpret the contract as a whole. He failed to read ss. 2 and 3 of the amending agreement harmoniously with the original lease and the rest of the amending agreement. The application judge’s reading of the amendment reads the words “for three (3) additional periods of five (5) years each” and “if all remaining options are exercised” out of s. 3 of the amending agreement. [14] Metro argues that this is a question of mixed fact and law and that the standard of review is one of palpable and overriding error. It submits that the application judge did not make such an error. If the parties had intended for s. 2 of the amending agreement to be an early exercise by Metro of two of its options to renew, then the section could have stated that. The application judge considered the lease and amending agreement as a whole, and he specifically considered the effect of s. 3(3) of the original lease and s. 6 of the amending agreement. [15] On the roof repairs issue, the cross-appellant, Metro, argues that the application judge erred in stating that nothing turned on the fact that Metro’s only obligation under the lease was to repair, rather than replace. It argues that the roof work is a replacement rather than a repair. [16] The respondent on the cross-appeal, Orillia, argues that Metro bears the sole responsibility of repairing the “Store” (as defined in the lease) and that Orillia has the responsibility of repairing the remainder of the “Shopping Centre”. The roof is part of the “Store” and Metro must repair or replace it when it affects their use and enjoyment of the premises. C. Discussion [17] A contract must be interpreted as a whole: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 64. Courts “should not strain to create an ambiguity where none exists”: see Chilton v. Co-operators General Insurance Co. (1997), 143 D.L.R. (4th) 647 (Ont. C.A.), at p. 654; Amberber v. IBM Canada Ltd. , 2018 ONCA 571, 424 D.L.R. (4th) 169, at para. 63; and G.H.L. Fridman, The Law of Contract in Canada , 6th ed. (Toronto: Carswell, 2011), at pp. 442-43. (1) Standard of review [18] Contractual interpretation is a question of mixed fact and law requiring the application of principles of contractual interpretation to the words of a contract and its factual matrix: Sattva Capital , at para. 50. However, an extricable question of law is subject to a correctness standard of review. Potential extricable questions 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 , at para. 53. Courts should be cautious in identifying extricable questions of law. (2) The main appeal [19] In my view, the main appeal should be allowed. The application judge committed an error of law by failing to consider the wording of the provisions in the context of the agreement as a whole. If he had not committed this error, he would have come to the conclusion that there was no ambiguity. [20] The original lease commenced in 1979 with an initial term of 25 years. Metro also had the option to renew for five successive periods of five years each. The maximum term was to be 50 years with an ultimate expiry date in 2029. The relevant provisions of the original lease are as follows: INITIAL TERM 3. (1) TO HAVE AND TO HOLD the Leased Premises for and during a period of 25 years and nil months commencing on the first day of March, 1979…. RENEWALS 3. (2) The Tenant shall have the options to renew this lease for 5 successive renewal periods of 5 years each…. MAXIMUM TERM 3. (3) If the exercise of an option to renew shall result in the Term exceeding a period of 50 years, then notwithstanding the provisions of section 3(2), the Term shall expire on that date which is 50 years after the date which is the earlier of the Occupation Date or the commencement date of the Term. [21] The parties entered into a lease amending agreement in 1999. The amendment extended the term of the lease by ten years and gave Metro the option to extend the term of the lease for three additional periods of five years each for a total of five options or 25 years. The relevant provisions of the amending agreement are as follows: 2. TERM The term of the Lease is extended from the date that it would otherwise expire for a further term of ten (10) years commencing March 1, 2004 and expiring on February 28, 2014 . 3. RENEWAL The Tenant has the option to further extend the term of the Lease for three (3) additional periods of five (5) years each, for a total of five (5) options or twenty-five (25) years, if all remaining options are exercised . The Tenant may exercise its options in the same manner as provided in the Lease. 6. EXISTING LEASE The Lease is amended wherever necessary to give effect to the foregoing and the Landlord and Tenant confirm that the Lease as so amended remains in full force and effect. [Emphasis added.] [22] When the 1999 amendment is read within the context of the original lease, there is no ambiguity. Three reasons support this conclusion. [23] First, a reading of the 1999 lease amendment alongside the original lease, considered from the perspective of the parties in 1999, leads to this conclusion. It is the only coherent way to make sense of the three additional periods specified in s. 3 of the amendment, and Metro was unable to explain what else the three additional periods could refer to, apart from the interpretation advanced by Orillia. While the drafting was not perfect, this reading is the only harmonious way to read the amendment with the original lease. At the time of the amendment, five years remained in the first 25-year term. None of the lease extension options under the original lease had been exercised, as the first opportunity would only have arisen in 2004. In extending the original term by ten years to 2014, the parties provided that there would have been a “further” three options to renew. The provision of “for a total of five” in s. 3 of the amending agreement can only mean that the extension from 2004-2014 comprised an early exercise of two of Metro’s options to extend. [24] Second, the application judge’s interpretation would have rendered the overall term of the lease to be 60 years rather than 50, which was specifically precluded by s. 3(3) of the original lease. The application judge’s view that the basket clause in s. 6 of the amending agreement applies does not survive scrutiny. Section 6 provided that the original lease would be amended where necessary to give effect to the amendments. But the parties did not amend the 50-year limit provision, despite the fact that it was in the same section of the original lease addressing the initial term and renewal options. It was not buried elsewhere in the lease. Had the parties intended to vary the maximum term set out in s. 3(3), it would have been easy for them to do so. They did not. [25] Third, this interpretation is supported by the factual matrix at the time of the 1999 amendment. Metro was expanding its store significantly, by 10,676 square feet. The parties agree that as part of Metro’s financing, the landlord contributed about $672,000 to the project ($63 per square foot). In return, Metro agreed to pay about $4.50 more per square foot in rent in the extension area, compared to the rent it was paying for the original area of the store. There is no dispute that it was therefore in the landlord’s interest to secure an early extension of the lease by ten years to 2014. While Metro undoubtedly expended large amounts on the renovations, one can infer that this was a business decision and it already had the right to remain for a further 30 years at the same rent if it chose to exercise the options. [26] In short, the application judge fell into error in failing to consider the actual wording within the context of the lease as a whole, which led him to find that the provision was ambiguous. This was an extricable legal error: see Thunder Bay (City) v. Canadian National Railway Company , 2018 ONCA 517, 424 D.L.R. (4th) 588, at para. 46, leave to appeal refused, [2018] S.C.C.A. No. 358. The expiry date of the lease is 2029 and not 2039 as Metro argued. Orillia’s appeal must be allowed. (3) The cross-appeal (a) The roof repairs [27] Starting in 2016, Metro experienced leaks in the roof at the grocery store, and its roof consultant determined that the roof needed to be replaced. The consultant suggested either a roof overlay that would salvage the existing insulation, or a full roof replacement strategy. Orillia approved, budgeted for, and entered into a contract for the roof overlay solution, but Orillia later took the position that these steps were taken in a mistaken belief that it had an obligation to repair the roof and that it now understands it has no such obligation. It was in this context that Metro sought an order requiring Orillia to replace the roof. [28] The application judge correctly concluded that Orillia did not have any duty to replace the roof and that Metro had the obligation to maintain and repair the roof. Section 14(1)(a) of the lease states that the tenant, Metro, must “maintain and repair the Leased Premises”. The landlord’s obligation to make repairs and replacements in s. 15 is subject to the tenant’s obligations under s. 14. [29] The relevant sections of the lease are as follows: ARTICLE XIV – REPAIR, ALTERATIONS AND MAINTENANCE OF STORE TENANT’S OBLIGATION 14. (1) The Tenant covenants that from and after the earlier of the Occupation Date or the date on which the Tenant accepts possession of the Store and opens the Store for business to the public (a) The Tenant shall maintain and repair the Leased Premises…. EXCEPTIONS 14. (2) The obligations of the Tenant under section 14(1) shall be subject to the following exceptions: (a) reasonable wear and tear which does not affect the use and enjoyment of the Leased Premises by the Tenant…. ARTICLE XV – REPAIR, ALTERATIONS AND MAINTENANCE OF SHOPPING CENTRE LANDLORD’S OBLIGATIONS 15. (1) Subject to Article XIV, the Landlord shall (a) keep or cause all buildings and improvements in the Shopping Centre and the Common Facilities to be kept in good repair and in a clean, orderly and safe condition (both inside and outside), and (b) in a good and workmanlike manner promptly do all such work and make or cause to be made all necessary repairs, make all necessary rebuildings and replacements (structural or otherwise), ordinary as well as extraordinary, and foreseen as well as unforeseen, including all such repairs, rebuildings and replacements which as a prudent owner thereof it should do or make to properly maintain and operate all buildings and improvements in the Shopping Centre and the Common Facilities. [30] Given the structure of the repair obligations under this lease, the proper analytical approach is to determine 1) whether the roof work is included in the tenant’s obligation to repair, 2) determine whether the roof work falls under an exception listed in s. 14(2), and 3) if the roof work is not the tenant’s obligation, determine if the work falls under the landlord’s repair obligation in s. 15 of the lease. (i) Tenant’s obligation to repair [31] The construction of a covenant of repair in a lease is a contextual, fact-specific exercise: see G.M. Pace Enterprises Inc. v. Tsai , 2003 BCSC 1336, 37 B.L.R. (3d) 60, at para. 66; Lurcott v. Wakely , [1911] 1 K.B. 905 (C.A. (Eng.)), at pp. 915-16. Like all contracts, the contract as a whole forms part of this context. Several principles on interpreting lease repair covenants emerge from a review of English and Canadian case law. First, the primary inquiry is to ask whether the repair gives the landlord back something entirely different than was demised. Second, the obligation to repair must be interpreted having regard to the specific wording of the repair covenant, the terms of the lease as a whole, and the premises rented, including its condition at the start of the lease. Third, a repair will generally involve some kind of replacement or renewal. One question is whether the replacement or renewal is of subsidiary parts of the whole or of the entire thing. [32] A tenant that covenants to repair the premises is not obligated to fix defects in the premises that go beyond a repair. The analytical question is whether the work that “the tenant is being asked to do can properly be described as repair, or whether on the contrary it would involve giving back to the landlord a wholly different thing from that which he demised”: Ravenseft Properties Ltd. v. Davstone (Holdings) Ltd. , [1980] Q.B. 12 (Q.B.D. (Eng.)), at p. 21; Nicholas Dowding et al. , eds., Woodfall: Landlord and Tenant , loose-leaf (London: Sweet & Maxwell, 2020) (loose-leaf updated 2021, release 122), vol. 1 at 13.032. [33] In Morcom v. Campbell-Johnson , [1955] 3 W.L.R. 497 (C.A. (Eng.)), at p. 501, leave to appeal to H.L. (Eng.) refused, Denning L.J. observed that the distinction between a repair and an improvement is whether it is a replacement of something already there or if it is the provision of something new: It seems to me that the test, so far as one can give any test in these matters, is this: if the work which is done is the provision of something new for the benefit of the occupier, that is, properly speaking, an improvement; but if it is only the replacement of something already there, which has become dilapidated or worn out, then, albeit that it is a replacement by its modern equivalent, it comes within the category of repairs and not improvements. [34] The test to determine whether the work goes beyond a “repair” has been stated in many different ways. One approach is to “look at the particular building, to look at the state which it is in at the date of the lease , to look at the precise terms of the lease, and then come to a conclusion as to whether, on a fair interpretation of those terms in relation to that state, the requisite work can fairly be termed repair. However large the covenant it must not be looked at in vacuo ” (emphasis in original): Brew Brothers Ltd. v. Snax (Ross) Ltd. , [1970] 1 Q.B. 612 (C.A. (Eng.)), at p. 640, leave to appeal to H.L. (Eng.) refused (October 13, 1969); Dowding , at 13.032. [35] In Lurcott , at p. 924, Buckley L.J. described repair as “restoration by renewal or replacement of subsidiary parts of a whole. Renewal, as distinguished from repair, is reconstruction of the entirety, meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion.” Buckley L.J. continued, at p. 924, “the question of repair is in every case one of degree, and the test is whether the act to be done is one which in substance is the renewal or replacement of defective parts, or the renewal or replacement of substantially the whole.” [36] The English law on the definition of repair has, with some exceptions not relevant here, been adopted by Canadian courts: see e.g. Norbury Sudbury Ltd. v. Noront Steel (1981) Ltd. (1984), 11 D.L.R. (4th) 686 (Ont. H.C.), at p. 698; Hall v. Campbellford Cloth Co. Ltd. , [1944] 2 D.L.R. 247 (Ont. H.C.). [37] There are only a few Canadian cases that deal specifically with the obligation to repair a roof under a lease. In Hall , the roof of a curling rink collapsed after an unusual amount of snow accumulated on top of it. The roof and premises were available to be repaired, and the premises were not wholly destroyed. After a thorough review of Canadian, English, and American case law, the court determined, in conclusory reasons, that the repair fell under the tenant’s obligation to “repair, reasonable wear and tear and damage by fire, lightning and tempest only excepted”. [38] In G.M. Pace, the court concluded that the tenant was not obligated to replace the roof of a service station that was at the end of its useful life. The service station was described as an older building that had suffered the ravages of neglect, and the roof was the original roof, when the lease began. As a result, the court determined that replacing the roof would provide to the landlord a building in a condition better than the tenant had received it. The tenant was only obliged to maintain, through repairs, the building as it existed when the lease began. In addition, the roof did not require immediate replacement and could continue to be “bandaided” for quite some time. [39] Finally, in 708-1111 West Hastings Ltd. v. Coopers & Lybrand Vancouver Ltd. , 1990 CanLII 1084 (B.C. Co. Ct.), rev’d on other grounds, 1991 CanLII 1374 (B.C.C.A.), the issue was whether the roof membrane repair was a “structural repair”. In deciding the issue, the court commented in obiter that “[s]ome of the English cases appear very harsh on the tenant. But it must be kept in mind the tenancies are frequently of long duration. That a tenant for 40 years would be held responsible for replacing a 20 year bonded roof during the term is not remarkable.” Some have cautioned that the length of the lease, although relevant, cannot be weighed too heavily: see Post Office v. Aquarius Properties Ltd. , [1987] 1 All E.R. 1055 (C.A.), at pp. 1064-65. [40] In summary, when interpreting a covenant of repair in a lease, a court should consider: (i)        whether the repair gives the landlord back something entirely different than was demised (see Ravenseft ; Morcom ); (ii)        the circumstances surrounding the obligation to repair including the specific wording of the covenant, the terms of the lease, the premises rented, and the condition of the premises at the start of the lease (see Brew Brothers ; G.M. Pace ; 708-1111 West Hastings ; and Post Office ); and (iii)       whether the replacement or renewal is of subsidiary parts of the whole or of the entire thing (see Lurcott ). [41] The parties, quite properly, did not submit that s. 25 of the lease, which addresses end of term obligations, applied to this case. The lease was renewed in 2019 and the final end of the lease will be 2029 as determined above. Application to the facts [42] This case involves the commercial lease of an anchor tenant. The lease length is a maximum of 50 years, which is longer than the typical service life of built-up roofs of 20-25 years, according to Metro’s roof consultant’s report. The building was new when the lease started. When it became clear that the roof needed significant repairs, the parties were presented with two options: (i) a roof overlay, which would preserve part of the roof and defer a roof replacement for another 15-20 years, and (ii) a full roof replacement. Orillia elected for the less expensive roof overlay option. [43] The starting point for the determination of the parties’ rights and obligations under a commercial lease must be the lease itself, read as a whole. The covenant to repair as set out in s. 14(1) imposes a general obligation upon the tenant, while s. 14(2) creates several narrow exceptions. Metro did not argue that the roof repairs fall within one of the exceptions in s. 14(2) but argued that it was a “replacement” and not a “repair” and thus did not fall within the scope of s. 14(1). [44] Given the case law referred to above, I reject Metro’s submissions that the roof repair was a “replacement” rather than a repair. Here, the roof overlay solution will not itself even bring the property back to its original condition as it will last less time than a new roof would. This case is distinguishable from the concern in G.M. Pace , where a roof replacement by the tenant would have returned the premises to the landlord in a better condition than it was in when the lease began. It cannot be said that the roof overlay will give Orillia something entirely different – or better – than what was originally demised or that it replaces substantially the entire premises. At the beginning of the lease in 1979, the roof was brand new. Further, given the evidence that the roof overlay would last 15-20 years, and the fact that the lease was renewed in 2019, and has one more renewal in 2024 before the end of the lease in 2029, it seems likely that Metro will receive the bulk of the benefit of the roof overlay. [45] It should also be noted that the covenant to repair issues in this appeal arise in the course of the lease, and thus are not governed by s. 25(2) of the lease, which provides that the tenant must surrender the leased premises upon termination of the term “in good and substantial repair and condition in accordance with its covenants to maintain and repair the Leased Premises.” This covenant may raise distinct considerations that are not necessary to canvas on this appeal. (ii) Reasonable wear and tear exception [46] A reasonable wear and tear exception excludes damage due to the “reasonable use of the house by the tenant and the ordinary operation of natural forces” from a tenant’s obligation to repair: see Haskell v. Marlow , [1928] 2 K.B. 45 (K.B.D. (Eng.)), at p. 59; Stellarbridge Management Inc. v. Magna International (Canada) Inc. , 2004 CanLII 9852 (Ont. C.A.), at para. 41, leave to appeal refused, [2004] S.C.C.A. No. 371. The burden is on the party claiming reasonable wear and tear to show that they are entitled to rely on the exception: see Stellarbridge , at paras. 60-64. [47] In this case, s. 14(2)(a) excludes from the tenant’s repair obligation only “reasonable wear and tear which does not affect the use and enjoyment of the Leased Premises by the Tenant”. This exclusion could not apply as the record indicates that the roof was, at points, leaking, which would affect the tenant’s use and enjoyment of the property. (iii) Landlord’s obligation of repair [48] Given my conclusion that the roof repair is Metro’s obligation, it is clear from the terms of s. 15 of the lease that Orillia is not obligated to repair the roof. [49] A review of the lease indicates that there are no additional provisions that are relevant to the interpretation of ss. 14 and 15 in this case. The application judge did not err in concluding that Orillia did not have any duty to replace the roof. (b) The “Triangle Land” [50] In the course of argument before this court, the parties were able to agree that it was not necessary to determine any issues of rights with respect to the Triangle Land on this appeal at this time. D. Disposition [51] I would allow the appeal and dismiss the cross-appeal. All inclusive costs of the appeal of $25,000 and all inclusive costs of the application below of $35,000 are payable by the respondent and appellant by way of cross-appeal, Metro, to the appellant and respondent by way of cross-appeal, Orillia, for a total of $60,000. Released: May 6, 2021 “K.F.” “A. Harvison Young J.A.” “I agree K. Feldman J.A.” “I agree Janet Simmons 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: P.Y. v. Catholic Children's Aid Society of Toronto, 2021 ONCA 248 DATE: 20210419 DOCKET: C68909 Fairburn A.C.J.O., Tulloch and Miller JJ.A. BETWEEN P.Y. and A.Y. Plaintiffs (Appellants) and The Catholic Children’s Aid Society of Toronto et al. Defendants (Respondents) P.Y., acting in person A.Y., acting in person Carole Jenkins, for the respondents The Catholic Children’s Aid Society of Toronto, Mary McConville, Janice Robinson and Rena Knox Domenico Polla, for the respondents Her Majesty the Queen in Right of Ontario, The Office of the Children’s Lawyer of Toronto and Katherine Kavassalis Sean Dewart and Ruben Lindy, for the respondent Frances Ann Gregory Susan M. Sack, for the respondent Fatma A. Khalid Charles Sinclair, for the respondent Haeley Gaber-Katz Logan Crowell, for the respondent The Hospital for Sick Children Daniel Bassili, for the respondent Conseil Scolaire Catholique Mon Avenir Heard: in writing On appeal from the judgment of Justice Frederick L. Myers of the Superior Court of Justice, dated October 30, 2020, with reasons reported at 2020 ONSC 6660. COSTS ENDORSEMENT [1] This court issued reasons on March 16, 2021, dismissing the appeal from the dismissal of the action against the remaining defendants as being frivolous and vexatious, pursuant to r. 2.1.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [2] The appellants did not respond to the communication request sent by the counsel for the following respondents: The Catholic Children’s Aid Society of Toronto, Mary McConville, Janice Robinson, and Rena Knox. As such, they were unable to arrive at an agreement. [3] We have reviewed the written submissions provided by the parties. The respondents, The Catholic Children’s Aid Society of Toronto, Mary McConville, Janice Robinson, and Rena Knox, seek partial indemnity costs in the amount of $2,344.75. The respondent, The Hospital for Sick Children, seeks partial indemnity costs in the amount of $1,062.88. Lastly, the appellants request that there be no order for costs. [4] The requested partial indemnity costs are reasonable. We order that the appellants shall pay to the respondents, The Catholic Children’s Aid Society of Toronto, Mary McConville, Janice Robinson, and Rena Knox, costs in the amount of $2,344.75. We also order that the appellants shall pay to the respondent, The Hospital for Sick Children, costs in the amount of $1,062.88. All costs are inclusive of disbursements and applicable taxes. “Fairburn A.C.J.O.” “M. Tulloch J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Parliament v. Conley, 2021 ONCA 261 DATE: 20210426 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. Harvison Young J.A.: A. Overview [1] Cole Parliament was diagnosed with severe hydrocephalus when he was around four months old. He is now 21 years old and has cognitive and physical disabilities. He and his parents, Kimberley York and John Parliament, sued the defendants and respondents on appeal, Dr. Conley and Dr. Park, for negligence, alleging that they delayed in diagnosing and treating Cole’s hydrocephalus and that this delay caused his brain damage. For the purposes of this appeal, the essence of their claim was that Drs. Conley and Park had breached the respective and applicable standards of care in failing to take appropriate steps to see that Cole was followed up when they had first noted the infant’s large head circumference. [2] After a lengthy jury trial during which some 27 experts testified, the jury found that the standard of care had been met by both respondents, and the trial judge accordingly dismissed the action. The appellants seek a new trial on the basis that the only expert on standard of care for the respondents, Dr. Bruce, gave evidence that went far beyond the scope of his expertise, failed to demonstrate impartiality, and usurped the jury’s proper role in opining on core credibility and factual questions which included what the doctors had actually told Cole’s mother, Ms. York, and whether she had followed the advice she was given. The respondents take the position that Dr. Bruce was not biased and that his evidence fell within the appropriate bounds. Moreover, they argue, the failure of the appellants’ trial counsel to object to this evidence or to the charge on these grounds precludes them from raising this on appeal. [3] For the reasons that follow, I would allow the appeal. B. Background (1) Medical history and events [4] The sequence of events between the time of Cole’s birth in August 1999 until the diagnosis of hydrocephalus and his surgery in mid-December 1999 to treat his hydrocephalus is important context to the issues on this appeal, and for that reason, I will set them out chronologically. [5] Cole Parliament was born on August 16, 1999, the first child born to his parents Kimberley York and John Parliament. Ms. York had been induced due to concerns about Cole’s small size, and among other things it was recorded on the physician’s record of newborn infant that Cole had needed resuscitation at birth and weighed six pounds, two ounces. [6] Dr. Conley was the long-time family doctor of Ms. York, and Ms. York took Cole to his regular check ups with Dr. Conley. Between his first visit to Dr. Conley at the age of three weeks on September 3, 1999 and his last visit to Dr. Conley on October 15, 1999, Cole’s head circumference went from the 25th percentile to over the 90th percentile. During the same period, his weight went from 3.11 kg, the 3rd percentile, to 4.98 kg, under the 50th percentile. The following chart summarizes Dr. Conley’s notes on these measurements: Date of Visit Head Circumference Height/Length Weight September 3, 1999 37 cm; over 25th percentile 52 cm; 10th percentile 3.11 kg (6.8 lbs); 3rd percentile September 21, 1999 39 cm; 50th percentile 54 cm; 3rd percentile 3.78 kg (8.3 lbs); 3rd percentile October 15, 1999 42 cm, 41.5 cm; 97th percentile 57 cm; under 25th percentile 4.98 kg (11 lbs); under 50th percentile [7] Ms. York insisted that she raised the concerns about Cole’s head size at each visit and that each time she was told it was normal. Dr. Conley denied that Ms. York ever raised this concern as he would have written it down if she had. Rather, his evidence was that he was the one who raised the concern about Cole’s head size. When Cole visited Dr. Conley for the last time on October 15 before the family moved to Barrie, Dr. Conley gave Ms. York Cole’s immunization form and, according to Ms. York, told her that the next expected visit would be in two months’ time. Ms. York said they would find another doctor in Barrie. [8] According to Dr. Conley, his nurse had taken Cole’s head circumference measurement that day (42 cm), and he remeasured and obtained a measurement of 41.5 cm. Dr. Conley testified he would have been discussing his concern with Cole’s head size with Ms. York and would have recommended that she take Cole for a follow up in two to three weeks. There was no evidence that he provided her with a referral to a physician in Barrie. Nor did he provide Ms. York with Cole’s chart or follow up. Dr. Conley acknowledged that he had some limited recollection of the September 3 and October 15 visits, but not the September 21 visit, and would otherwise require his notes. [9] In addition, Ms. York took Cole to a walk-in clinic on November 13. She was concerned because Cole had developed a cough and did not seem to be eating enough. He was seen by Dr. Park. Dr. Park acknowledged at trial that he had no recollection of this visit apart from his notes. Although the visit was very short, Dr. Park measured Cole’s head. His notes indicate that it was 45 cm in circumference, which Dr. Park plotted and found that it was in the 95th percentile. He testified that this was “definitely abnormal”. His notes also say “large head”, “[t]o ER for assessment”, and “URI” for upper respiratory tract infection. Considering the ER note, Dr. Park testified that he would have explained his concern to Ms. York, and he would have told her to go to the emergency room as soon as possible. Ms. York denied that Dr. Park had expressed any concern to her about Cole’s head size or that he had told her to take Cole to the emergency room that day, stating “I’m a new mom. I mean, he has a freckle on his right arm, you know, I would bring that up.” According to Ms. York, Dr. Park told her that everything was fine and Cole was in good health. [10] The young family moved to Barrie as planned at the end of November. On December 6, Ms. York took Cole to the emergency department at the Royal Victoria Hospital in Barrie because he was drooling more than usual and there were white patches on his gums. The hospital records indicate it was thrush. From what Ms. York could remember, the doctor did not measure Cole’s head and his head was not an issue that day. According to Ms. York, they left with no problems, no issues. [11] On December 11, 1999, Ms. York attended a social gathering where a family friend named Susan Williams, a pediatric nurse who worked for pediatrician Dr. Schelberg, was also present. Ms. Williams expressed concern about the size of Cole’s head, and she testified that Ms. York “ was surprised that I thought there was a problem with the size of the head because she had been told it was normal.” Ms. Williams offered to arrange for Dr. Schelberg to see Cole. Ms. York readily agreed and took the next available appointment which took place on December 16, 1999. Dr. Schelberg examined Cole and measured his head, and his notes indicate “large head”. Specifically, Dr. Schelberg documented a head circumference of 50 cm, greater than the 95th percentile. [12] Dr. Schelberg advised Ms. York that Cole had hydrocephalus. Dr. Schelberg’s clinical notes had included the phrases “dilated veins”, “(+) sunset” and “(+) crackpot sign”. During his examination in chief, Dr. Macnab, an expert witness for the appellants, reviewed Dr. Schelberg’s findings. Dilated veins on the surface meant that the pressure from the hydrocephalus was compromising normal circulation of blood through the blood vessels. Sunsetting eyes, where you can see the whites of the eyes more than the pupil, were a sign that pressure damage had occurred to the nerve pathways that control eye movement. A cracked pot sign referred to Cole’s skull bones being so pushed apart that the skull was effectively broken because of the rising pressure in his head. [13] Dr. Schelberg referred Cole to Dr. Drake, a neurosurgeon at the Hospital for Sick Children, who saw him the next day, on December 17. According to Ms. York, Dr. Drake advised her that Cole had severe hydrocephalus. Cole needed surgery to insert a shunt, which would drain the excess fluid from his brain. Cole underwent this surgery on December 19, 1999. [14] Dr. Conley’s wife worked at Dr. Conley’s office, and she testified that she had received a call from Mr. Harold York, Ms. York’s father, on December 17, 1999, based on a note she had taken. The note said “Mr. York called to say Cole has been diagnosed with hydrocephalus” and “[a]lso stated Dr. C had told Kim to have head size checked.” Mr. York did not recall making that call and was “sure that call never took place.” He also denied having made that last statement, saying “[t]hat’s absolutely not possible because Dr. Conley had always said that Cole’s head size was normal.” (2) The trial [15] The main issues at trial were standard of care, causation, and damages. On the first issue, which is also the relevant issue on this appeal, the central dispute was whether Dr. Conley and Dr. Park had met the applicable standard of care. The appellants’ position was that they had not. They argued that neither doctor had told the parents that Cole’s head size was a matter of concern. Even if some concern was expressed at the time, the standard of care required the doctors who saw Cole in October and November to take additional steps and actually make referrals, among other things. Further, the notion that Ms. York would not have brought Cole for assessment right away, had she been instructed to, defied common sense, particularly in light of the fact that this was a mother who was good at following up on instructions and took Cole to many medical appointments, including for small things. [16] The respondents’ position was that both doctors had expressed their concerns to Ms. York; that the doctors had taken sufficient steps because a referral was not required when Dr. Conley saw Cole on October 15 and Dr. Park had told Ms. York to take Cole to the emergency room; and that Ms. York had chosen not to take Cole for follow up with a doctor or to the emergency department despite receiving advice to do so. [17] In short, the issues of credibility and reliability at trial as they related to standard of care were central issues revolving around what the two doctors had said to Ms. York on the various occasions that they saw Cole, whether she followed any instructions she was given, and whether the doctors’ actions or omissions met the applicable standard of care. (3) The expert evidence at trial [18] Although there were 27 experts who testified at the trial, only four testified as to the standard of care. For the appellants, three doctors were qualified as experts as to the standard of care: 1. Dr. James Rourke, an expert in family medicine, creator of the “Rourke Baby Record” guideline for looking after babies and infants up to the age of five used by most family doctors in Canada; 2. Dr. Andrew Macnab, an expert in pediatrics and neonatology, a subspecialty of pediatrics concerned with looking after newborn infants, and a professor at the University of British Columbia; and 3. Dr. Jan Ahuja, an expert in walk-in centre care, a walk-in and emergency medicine physician, a professor at the University of Ottawa, and a peer assessor and medical inspector for the College of Physicians and Surgeons of Ontario. [19] For the respondents, the following doctor was qualified as an expert as to the standard of care: 1. Dr. Barry Bruce, an expert in family medicine and episodic care, a physician practicing in Carp, Ontario who has mainly worked in general family practice and episodic walk-in patient care, and former Chief of Staff at the Queensway Carleton Hospital in Ottawa. [20] Dr. Rourke opined that the abnormal and serious clinical finding of rapidly increasing head circumference was evident by October 15, 1999, at which point it had increased from over the 25th percentile to the 50th percentile and then to the 97th percentile over a six-week period. He noted that by September 21, Cole’s weight had remained on the same percentile from September 3, while the head moved up significantly, and that “at this point in time, one’s got to be concerned about which is the problem.” He testified that Dr. Conley fell below the standard of care on October 15, 1999 because based on Dr. Conley’s notes, Dr. Conley had failed to recognize the serious implications of Cole’s very abnormal head circumference growth, failed to carry out and record an assessment with respect to the serious clinical finding, and failed to make an urgent referral to a specialist. [21] Dr. Macnab opined that the standard of care required that a baby with Cole’s pattern of head growth, as documented by Dr. Conley on October 15, 1999, must be referred to a specialist immediately. Dr. Macnab explained that growth typically occurs along the centile we are born on, so when patterns of growth fall off percentiles, it is worrying because it means the growth is not following the normal curve. He plotted Dr. Conley’s measurements of Cole’s head circumferences and pointed out that while there was cause for concern even at the visit of September 21 because there was crossing of centiles, Cole’s head measurement by October 15 was “essentially off the centile chart” and showed a “highly abnormal pattern of growth” requiring immediate action, namely referral to a specialist. When asked to assume that Dr. Conley did tell Ms. York to take Cole to have his head checked and whether a patient can be expected to follow that advice, Dr. Macnab opined that “it’s not appropriate to delegate or abdicate this kind of decision, responsibility, care, next step, to a young mother” and that “with something this important, the follow-up has to be guaranteed.” [22] Dr. Ahuja opined that Dr. Park fell below the standard of care because he failed to carry out and record a complete history and physical examination related to the abnormal and significant finding of Cole’s head size, he failed to discuss this abnormal finding with Ms. York, and he failed to properly and effectively refer Cole for further urgent assessment. Dr. Park did not act appropriately upon his finding of an abnormal head size. He should have provided a copy of his record of treatment clearly indicating his concerns, sent a consult note to the emergency department indicating his concerns, and made direct contact with at least a triage nurse at the emergency department of the hospital. Dr. Ahuja assumed that these things were not done because they were not documented but agreed that if something is not written down it does not necessarily mean that the act did not happen. His opinion was that Dr. Park’s chart was clinically substandard. [23] Dr. Bruce opined that both Dr. Conley and Dr. Park met the standard of care. Rather than using the “Boston Graph” that Dr. Conley had used in 1999, Dr. Bruce re-plotted Cole’s head circumference measurements on the graph used by Dr. Park with different percentile curves. Dr. Bruce’s plots showed that Cole’s head circumference was at approximately the 75th percentile on September 3, about the 80th percentile on September 21, and about the 95th percentile on October 15. His opinion was that Cole’s changing head size over the three visits in itself did not require a referral, and Dr. Conley was not obliged to make a referral for Cole on October 15, as Cole was otherwise well. Even using Dr. Conley’s percentiles and plotting, the standard of care on October 15 did not require a referral, only that head circumference be remeasured again within two to four weeks. Dr. Conley had appropriately remeasured Cole’s head when he identified a concern about head size, and it was appropriate to advise Ms. York to have Cole’s head size followed by a new physician, if one could be found, at an appropriate time. [24] With respect to Dr. Park, Dr. Bruce said he had met the standard of care because he recognized that Cole had a large head, he had measured it, he had assessed the measurement and found a clear abnormality, and he had decided to send Cole to the emergency room for assessment. Assuming that Dr. Park had told Ms. York that his reason for wanting her to go to the emergency room was for an assessment of Cole’s head size and that he had given her a note with his findings for the emergency room doctor, that would meet the standard of care. No additional steps were required. Dr. Park was entitled and obligated to rely on Ms. York to take Cole to the emergency room. [25] In cross-examination, Dr. Bruce agreed that he ignored Ms. York’s evidence when he wrote his report, because he did not think it was relevant. He also expressed his opinion that he did not think Ms. York’s memory was accurate, that he had put more weight on Dr. Conley’s evidence because he had some notes, and that it was inconceivable that Dr. Park had not told Ms. York to take Cole to the emergency room. [26] As I will discuss further below, the evidence of Dr. Conley and Dr. Park was irreconcilable with the evidence of Ms. York. Dr. Conley maintained that he expressed concern about Cole’s head size in October and that Ms. York did not raise a concern about his head size during any of the visits as he would have written that down. Ms. York testified that she was the one who raised the concern and was repeatedly reassured that Cole’s head size was within normal range and that she should not worry. She specifically denied that Dr. Conley told her on October 15 that she needed to have Cole’s head size watched or checked, stating that she was given the immunization record and told that Cole did not need to be seen for another two months. With respect to Dr. Park, Ms. York denied that he had told her to take Cole to the emergency room, saying that she would have done so had he said that. Credibility and reliability of the lay witnesses was thus a critical issue for the jury to resolve in this trial. (4) Issues at trial with respect to expert evidence [27] There were no objections to the admissibility of Dr. Bruce’s evidence either at the outset or in the course of his testimony and cross-examination. Following Dr. Bruce’s testimony, however, the respondents attempted to qualify another doctor, Dr. Karen Fleming, as an additional expert in the standard of care. The appellants objected to Dr. Fleming being qualified as an expert because she lacked independence and impartiality and her evidence was unnecessary. [28] The trial judge reviewed Dr. Fleming’s reports and found that they included credibility assessments, inaccuracies, and methodological flaws, and thus lacked objectivity. Dr. Fleming accepted the evidence of the respondent doctors and rejected the evidence of the appellants without explanation, and she was unwilling or unable to recognize or acknowledge this preference. She made improper fact-finding and credibility assessments and acted as both judge and jury. The trial judge found that there was a serious concern that the jury would accept the premise underlying Dr. Fleming’s opinion as conclusive or be affected by her acceptance of certain facts. The trial judge concluded that Dr. Fleming lacked independence, rendering her incapable of providing an impartial opinion and refused to admit her evidence. (5) Pre-charge conference and closing submissions [29] At the pre-charge conference, counsel for the respondents made submissions clarifying the trial judge’s summary of Dr. Bruce’s evidence. Counsel for the appellants did not make submissions on Dr. Bruce’s evidence except to clarify that Dr. Bruce had not opined on whether he accepted Harold York’s evidence. [30] During closing submissions, counsel for the respondents told the jury that they would need to make decisions on the credibility and reliability of the fact witnesses and expert witnesses. Counsel submitted that the standard of care issue in the case was driven by two main questions, namely, what actually happened between Dr. Conley and Ms. York on October 15 and between Dr. Park and Ms. York on November 13: (1) whether Dr. Conley told Ms. York on October 15 that Cole’s head size needed to be followed; and (2) whether Dr. Park told Ms. York on November 13 that she should take Cole to the emergency room. The answers to these two questions should be “yes”. It made no sense that both doctors would have been concerned about Cole’s head size, recorded that concern, and not told Ms. York. With regard to the expert evidence on the standard of care issue for both Dr. Conley and Dr. Park, counsel encouraged the jury to accept the evidence of Dr. Bruce. [31] Counsel for the appellants submitted that the question was not what Dr. Conley may or may not have told Ms. York, as defence counsel had framed it, but rather what he ought to have done in those circumstances. There were instances where Dr. Conley and Dr. Park appeared to change their evidence, and counsel’s position was if the doctors did nothing wrong during the October and November visits, they would not need to come to court and attempt to change their evidence. Counsel for the appellants also emphasized the importance of the credibility of the witnesses and highlighted the evidence of Dr. Bruce on standard of care. Counsel submitted that Dr. Bruce did not fulfill his obligation to the court to provide objective evidence, read from a transcript of Dr. Bruce’s cross-examination, and submitted that the jury could not trust Dr. Bruce. (6) The jury charge and verdict [32] The jury charge consisted of general principles that apply to civil jury cases, legal principles on the issues that governed the case including liability, causation, and damages, the specific questions the jury would need to answer, and instructions to assist the jury with its deliberations. The trial judge told the jury that in deciding the facts in this case, they would need to weigh and judge the testimony of witnesses for credibility and reliability. She provided guidance for dealing with expert testimony, instructing the jury to take into account the expert’s skill, experience, knowledge, familiarity with the facts, credibility, and whether the expert seemed impartial and fair or unwilling to consider opinions other than their own. Further, the jury was entitled to reject an expert’s opinion or find it less helpful if they found the facts to be different from those underlying the opinion. [33] In reviewing the legal principles in the case, the trial judge began with negligence and the question of whether the defendants breached the required standard of care. The jury was told that if this was not proven, the plaintiffs could not succeed. The trial judge began her review of the evidence on standard of care by telling the jury that while judges have a right to comment on a witness’s credibility and inferences to be drawn from the evidence, she did not intend to do so, and that it was the jury’s duty to interpret the evidence. In reviewing Dr. Bruce’s evidence, the trial judge mentioned the cross-examination where Dr. Bruce testified that he had accepted Dr. Conley’s evidence, did not accept anything Ms. York said because she was “probably mistaken”, and did not reference any of Mr. Parliament’s evidence. The trial judge did not give a specific instruction in the charge regarding Dr. Bruce’s evidence, but she did end the standard of care portion of her charge by reminding the jury that it was up to them to determine the weight to give an expert opinion by considering various factors and questions, including whether the witness seemed impartial and fair. [34] The jury’s verdict was that Dr. Conley and Dr. Park did not breach the standard of care. The jury made no findings on causation. The trial judge dismissed the action against Dr. Conley and Dr. Park in accordance with the jury’s verdict. C. Issues on appeal [35] The appellants found their appeal on the trial judge’s failure to exclude Dr. Bruce’s evidence, or alternatively, to provide a clear and specific instruction to the jury with respect to his lack of impartiality and the impropriety of his assessments of the parties’ credibility. They argue that a new trial is required. [36] The respondents argue that, first, the jury charge was sufficient to instruct the jury as to the concerns surrounding Dr. Bruce’s evidence, and that this concern about bias simply went to the weight to be given to the opinion. Moreover, they argue that the appellants ought not to succeed on appeal on a new concern not raised at trial. Finally, they argue that the verdict was reasonable. There was no miscarriage of justice; the appellants simply failed to meet their onus of proof. D. Analysis (1) Did the trial judge err by failing to exclude Dr. Bruce’s evidence or by failing to provide a specific instruction to the jury? (a) Positions of the parties [37] The appellants submit that Dr. Bruce’s evidence was inadmissible in whole or in part, and that the trial judge erred in failing to so instruct the jury. Dr. Bruce’s evidence was inadmissible because he failed to fulfill his duty to be independent or impartial. He accepted the version of events presented by the respondents and ignored the evidence of the appellants. Dr. Bruce not only provided his opinion on what he thought happened on central questions in dispute, but he even went so far as to purport to make findings of fact. The trial judge should have exercised her residual discretion as part of her gatekeeping role to exclude Dr. Bruce’s evidence or at the very least, she should have provided a specific instruction to the jury concerning the impropriety of Dr. Bruce’s evidence and his failure to fulfill his duty. [38] The respondents argue that the appellants’ closing submissions warned the jury about Dr. Bruce’s alleged bias in his testimony with respect to both Dr. Conley and Dr. Park, and about Dr. Bruce ignoring Ms. York’s evidence and accepting the evidence of the physicians, despite the fact that they acknowledged having no recollections of the visits while Ms. York testified that she did. The respondents also submit that the charge contained all the necessary warnings on credibility and reliability of all witnesses and reiterated the appellants’ concerns with Dr. Bruce’s evidence. Even if the appellants had asked the trial judge to exclude Dr. Bruce’s evidence, it would have been inappropriate for her to do so. Dr. Bruce’s evidence did not reveal a level of bias that would go to threshold admissibility, and any concerns about bias would appropriately go to the weight to be given to his evidence. He did not make findings of fact and he did not advocate for the position of the respondents. He was merely making assumptions and being cross-examined on those assumptions. Dr. Bruce reviewed the records and transcripts and provided an expert opinion based on that review. (b) Impugned evidence of Dr. Bruce [39] The credibility and reliability of the lay witnesses were critical issues for the jury to resolve in this trial. It is against this backdrop that the appellants argue that Dr. Bruce was neither independent nor impartial – that he opined on matters going to the heart of the credibility and veracity of Ms. York, Mr. Parliament, and the two doctors, at times stating that he did not think Ms. York’s evidence was relevant, that it was untruthful, or that she could not have remembered it correctly. It is necessary to review some of the impugned portions of Dr. Bruce’s testimony in order to assess the submissions of the appellant. [40] Dr. Bruce agreed on cross-examination that he chose to accept Dr. Conley’s evidence over Ms. York’s evidence, explaining that he could find discrepancies in their evidence, that Ms. York’s evidence in discovery was not relevant, that he assumed Ms. York could not remember correctly despite Ms. York saying that she had a clear recollection and Dr. Conley saying he did not remember those visits well, and that he was not sure her memory of the events was accurate: Q. And you proceeded on the assumption throughout your report that Ms. York is untruthful; yes? A. I did find discrepancies between what I could read in the charts and what Ms. York was saying, yes. Q.      Why didn’t you put down the information that Ms. York said in her discovery? A. Well, because I didn’t think it was relevant. Q.      Not relevant? The fact that she says that he never mentioned -- she brought to ... Dr. Conley a concern about Cole’s head size and he told her it was normal, that’s not relevant? The fact that he told her that everything was normal on October 15th, that’s not relevant? A.      I think with so many years, that nobody could remember exactly what was said. I think that’s why I was looking at -- Dr. Conley had his notes to refer to, and he had some memory of what he would have done, but there were no notes that were kept by Cole’s mother. Q.      [W]ere you fair and objective and nonpartisan here? A.      I think so. Q.      By not referring to Ms. York’s evidence? Yes? A. Well, by assuming she couldn’t remember correctly. Q.      Why would you assume that if she says she remembers? A.      It was so many years. Q.      So you assume that she’s just making it up? That’s it; right? Under oath, she’s making those statements up? That’s your assumption? A.      I don’t think she’s -- she believes that she remembers it, but I’m not sure that it was accurate. Q.      So didn’t you -- you perceived your role in this case to actually assess the credibility of the two parties and make a decision who you believe or who you don’t believe? A.      I can’t answer that. Q.      Well, of course you can because that’s what you did. You chose to take Dr. Conley’s evidence, including those things that he [had] not documented in his records just because he said it on discovery and used that to defend him. Yes or no? A. It’s true. [Emphasis added.] [41] Dr. Bruce later went on to opine in cross-examination that Dr. Conley had conducted a sufficient neurological examination despite the limited notes on Cole’s neurological status on October 15 because he could “read between the lines”. Dr. Bruce also assumed that Dr. Conley had told Ms. York to have Cole’s head size followed, based on the note “will watch head size”: Q.      I see. So how about this reading between the lines: So for everything else, you don’t accept Ms. York’s evidence, but for this neurological examination, whatever she told Dr. Conley is gospel for you; right? A.      No. Dr. Conley made notes of it at the time and made excellent notes at the time, and, yes, it’s gospel. What the mother said was relying on memory for events that had occurred many years before, so I have to be a little askance that those were remembered correctly, yes. Q.      There’s no note in Dr. Conley’s chart that says that he told the mother to go and have the head checked; correct? A.      There’s no note that says specifically those words, no. Q.      Where do you get the fact that Dr. Conley told the mother -- as you say in your report, Dr. Conley told the mother to go and see another doctor to have the head checked. Where did you get that information from? A.      I’ll have to see exactly what I said. Q. You wrote: “It was appropriate for Dr. Conley in the circumstances to advise Ms. Parliament, as he did, to have Cole’s head size followed by his new physician.” A.      Yes. Q.      Where did you get that from? A. Well, that’s what I assume from that one line, “will watch head size.” [Emphasis added.] [42] The appellants also point to Dr. Bruce preferring the evidence of Dr. Park over Ms. York and straying well beyond the confines of his role during his cross-examination when providing his opinion about whether Dr. Park met the standard of care: A. He’s required to prepare a note. Actually, a large head, as serious as it is, is a rather simple concept to portray. Q.      All right. You reviewed his notes. Did you find any? A.      No. No, I did not. Q. But for that purpose, you -- to render your opinion, you relied on Dr. Park’s evidence even though it’s nowhere in the records; correct? A. Yes. Q. And, again, you ignored Ms. York’s evidence on that point; right? A. Yes. Q.      Well, I’m suggesting to you that it’s not enough, given what we discussed, just to tell the mother. He needs to write a detailed note, call the emergency department or another physician who he’s referring the patient to and have that talk so that he makes sure that the baby is seen and that his advice is understood; do you not agree? A.      I think it’s clear that -- no, not entirely. I think it’s clear that he did . It’s inconceivable that he didn’t convey this, given the gravity of it, to the mother. It’s inconceivable that he didn’t directly tell her to go to emergency. Q.      Well, is it conceivable that a mother who brings the child to a doctor on a Saturday because of a cold or cough -- A.      Yes. Q.      -- is not going to go to the emergency, which is five to seven minutes away, when she’s told your baby may have hydrocephalus, that this is a significant brain issue; do you think that is more conceivable? A.      It does not sound usual to me, but it’s conceivable because that’s what happened. [Emphasis added.] (c) The principles [43] Expert evidence carries with it the risk that a jury “will inappropriately defer to the expert’s opinion rather than carefully evaluate it”: White Burgess Langille Inman v. Abbott and Haliburton Co ., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 17; R. v. Mohan , [1994] 2 S.C.R. 9, at pp. 21-22. The test for admissibility of expert evidence consists of two steps. First, the proponent of expert evidence must establish that four conditions are met in order to establish its admissibility: relevance; necessity in assisting the trier of fact; absence of an exclusionary rule; and a properly qualified expert. The second stage of the inquiry requires the trial judge to conduct a cost-benefit analysis to determine whether otherwise admissible expert evidence should nevertheless be excluded because its probative value is outweighed by its prejudicial effect. [44] The ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and it is not the proper subject of expert opinion. The rationale for this policy is that credibility is a notoriously difficult problem, and a frustrated jury may readily accept an expert’s opinion as a convenient basis upon which to resolve its difficulties: see R. v. Marquard , [1993] 4 S.C.R. 223, at p. 248. In addition, one of the central dangers of expert evidence is that finders of fact, and juries in particular, may be too ready to rely on experts who appear to be knowledgeable, credible and reliable. Doherty J.A. explained this danger in R. v. Abbey , 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave to appeal refused, [2010] S.C.C.A. No. 125: Clearly, the most important risk is the danger that a jury will be unable to make an effective and critical assessment of the evidence. The complexity of the material underlying the opinion, the expert's impressive credentials, the impenetrable jargon in which the opinion is wrapped and the cross-examiner's inability to expose the opinion's shortcomings may prevent an effective evaluation of the evidence by the jury. There is a risk that a jury faced with a well-presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury. [45] It is well established that a trial judge’s role as gatekeeper is not exhausted once a particular expert has been permitted to testify on the basis of their qualifications and the content of their report: see Bruff-Murphy v. Gunawardena , 2017 ONCA 502, 138 O.R. (3d) 584, at paras. 62-66, leave to appeal refused, [2017] S.C.C.A. No. 343; R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 46-47. Rather, the trial judge must protect the integrity of the process by ensuring that the expert does not overstep the acceptable boundaries in giving evidence. As Doherty J.A. stated in Abbey , at para. 62, it is essential that trial judges ensure both “[a] cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted”. [46] However, even when the content and scope of an expert’s evidence is delineated in advance, the expert may stray in the course of their oral testimony. As Hourigan J.A. noted in Bruff-Murphy , at paras. 62-63: A trial judge in a civil jury case qualifying an expert has a difficult task. She must make a decision based on an expert report that will, in most cases, never be seen by the jury. While the report provides a roadmap of the anticipated testimony and specific limits may be placed on certain areas of testimony, the trial judge obviously cannot predict with certainty the nature or content of the expert’s testimony. Where, as here, the expert’s eventual testimony removes any doubt about her independence, the trial judge must not act as if she were functus . The trial judge must continue to exercise her gatekeeper function. After all, the concerns about the impact of a non-independent expert witness on the jury have not been eliminated. To the contrary, they have come to fruition. At that stage, when the trial judge recognizes the acute risk to trial fairness, she must take action. [Emphasis added.] [47] The continuing gatekeeping role means that trial judges must not only continue to ensure that the expert’s actual testimony does not overstep the appropriate scope of the expert evidence; they must also include ensuring that the expert’s testimony continues to be independent in the sense that the expert does not become an advocate for the party by whom they are called. [48] As Hourigan J.A. made clear in Bruff-Murphy , the continuing gatekeeper role of a trial judge includes the continuation of the residual discretion to exclude evidence when they are not satisfied that the testimony’s probative value exceeds its prejudicial effect: at paras. 65-66; R. v. White , 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 50; and R. v. Bingley , 2017 SCC 12, [2017] 1 S.C.R. 170, at para. 30. (d) Application [49] There does not appear to have been anything inherently improper about Dr. Bruce’s opinion as to the applicable standard of care. I would note, however, that it is not clear that the issue was canvassed at the voir dire in the same manner as was the proposed evidence of Dr. Fleming, which was excluded in its entirety because the trial judge concluded that it was not independent. Rather, it seems that the appellants consented both with respect to Dr. Bruce’s qualifications and the content of his report. The appellants do not argue that Dr. Bruce should not have been permitted to give expert evidence from the outset. However, they argue, and I accept, that as the extracts above demonstrate, Dr. Bruce opined on the credibility of the parties in his oral testimony, indicating that he believed the respondents and not Ms. York. The credibility and reliability of Ms. York and the two doctors were central issues for the jury to decide. [50] There were a number of problems with Dr. Bruce’s evidence as given. [51] First, it illustrates one of the dangers of expert evidence that oversteps its boundaries: the risk that a jury, faced with difficult issues of credibility and reliability and a well-presented expert opinion, will “abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury”: see Abbey , at para. 90; see also Marquard , at p. 248. Dr. Bruce exceeded his role as an expert when he opined on the credibility and reliability of the doctors and Ms. York, for example observing that Ms. York was untruthful and could not remember accurately. There was a risk that the members of the jury would accept Dr. Bruce’s credibility and reliability assessments, rather than assess the evidence of the witnesses and reach their own conclusions. [52] Second, the expression of an opinion as to the credibility of witnesses is also a breach of the expert’s duty to be independent. Dr. Bruce acknowledged in his evidence that in rendering his opinion on standard of care, he disregarded Ms. York’s evidence and assumed that the doctors’ evidence was credible and reliable. I do not accept the respondents’ argument that all Dr. Bruce was doing was making assumptions as the questions put to him asked him to do. As the extracts above indicate – particularly “it’s conceivable because that’s what happened” – it is clear that in some critical instances he was giving evidence about what actually happened, based on his view of the credibility of the witnesses. His testimony extended well beyond expressing opinions based on hypothetical facts he was asked to assume. For these reasons, this evidence was not admissible and to the extent his testimony opined on the credibility of the witnesses, it should have been excluded. These circumstances called for the trial judge to exercise her gatekeeping role and her residual discretion to exclude this evidence. [53] I do not agree with the respondents that the appellants’ closing submissions were adequate to address any prejudice caused to the appellants by the impugned aspects of Dr. Bruce’s evidence. Nothing that the appellants could have said in their closing would have had the force of a clear instruction from the trial judge to the effect that the impugned aspects of Dr. Bruce’s evidence were inadmissible. Juries are told that the trial judge is the judge of the law, and that they are to take their instructions from the trial judge. What the appellants said was simply argument. [54] I also do not accept the respondents’ submission that the final charge contained the necessary warnings. The vast majority of the cautions to which the respondents refer are contained in the general section of the charge and applied to all of the expert witnesses. The trial judge had explained to the jury how to assess the credibility and reliability of a witness’s evidence, with additional instructions on weighing expert opinions. The jury was told to consider whether the expert struck them as being honest, impartial, and fair, and told that they could reject an expert’s opinion if they found the facts to be different from those which formed the basis for the expert’s opinion. These general instructions came fairly early on in the charge, in what is often referred to as the “boilerplate” portion, with no reference to any of the individual experts who testified. The trial judge went on to give instructions on the burden of proof, an overview of the facts, and instructions on the legal principles for the standard of care before reviewing the lay witness and expert evidence on standard of care and recapping the instructions on weighing expert opinion. [55] There was no specific caution about Dr. Bruce’s testimony on the issue of his view of the credibility and reliability of Ms. York. The trial judge did, in her summary of the parties’ evidence, include the following: On cross-examination, Dr. Bruce testified that he had read the transcripts of the examinations for discovery and in coming to his opinions had accepted Dr. Conley’s evidence. He did not accept anything that Kim said as she was “probably mistaken,” nor did he reference any of John Parliament’s evidence. On cross-examination, Dr. Bruce testified that he accepted Dr. Park’s evidence over Kim York’s evidence. Dr. Bruce stated that it’s inconceivable that he didn’t convey this given the gravity of it to the mother. When asked whether it was conceivable that a mother would not take her child to the emergency department when faced with a potential hydrocephalus or brain injury, Dr. Bruce stated: “It does not sound usual to me. It’s conceivable because that’s what happened.” [56] However, there was, in short, nothing in the charge instructing the jury to disregard Dr. Bruce’s evidence in relation to the credibility and reliability of the two doctors and Ms. York. (e) What should the trial judge have done? [57] There are two steps that the trial judge could have taken at the time that Dr. Bruce was testifying. First, she could have, in the absence of the jury, invited submissions from the parties as to the content of a mid-trial instruction that the jury ignore any and all of his expressions as to the credibility or reliability of the witnesses. Second, she could have included a very clear and specific instruction in the final charge on the point. The general comment that it was entirely up to the jury to decide “[h]ow much or how little [they] believe of or rely upon an expert’s opinion” was wholly inadequate given the risk that the jury would place undue weight on Dr. Bruce’s opinion. Given the large number of expert and lay witnesses who testified at trial, nothing less than a clear and specific instruction that Dr. Bruce’s credibility opinions were inadmissible and should be ignored would suffice. [58] The failure to so instruct the jury was a serious error on the part of the trial judge, despite the fact that the appellants’ counsel did not ask for either a mid-trial or a closing instruction. In this case, the trial judge should have delivered a prompt and clear mid-trial instruction during Dr. Bruce’s testimony and reiterated this instruction in the final charge. I recognize that both steps might not be necessary in all cases, but it was necessary in this case, given the highly prejudicial nature of the impugned aspects of Dr. Bruce’s evidence to the appellants’ case and the fact that the jury heard a great deal of additional evidence on subjects other than the standard of care after he testified. [59] The defence called approximately five witnesses on causation and six on damages over the next few weeks. This was not a short, one issue trial in which it might have been reasonable to think that the evidence would be fresh and that a caution in the final charge would suffice, or that a mid-trial caution would have sufficed in the absence of a final instruction that reiterated the caution. The circumstances of this trial, including the number of experts, its length, and the complexity of the evidence on a range of issues required that this instruction be given both when Dr. Bruce overstepped his role as an expert when giving his evidence and in the course of the final instructions. (2) Is the failure to raise the issue of Dr. Bruce’s impartiality before the trial judge fatal on this appeal? [60] Dr. Bruce’s expert evidence was admitted at the outset on consent. There were no objections by the appellants’ trial counsel to Dr. Bruce’s evidence in chief, apart from a brief objection to require Dr. Bruce to stay within the parameters of his report when opining on the significance of a child’s weight, nor to the absence of any specific reference in the charge to Dr. Bruce’s lack of impartiality or bias. (a) Positions of the Parties [61] The respondents argue that the appellants should be precluded from raising the issue of the admissibility of Dr. Bruce’s evidence on appeal because they failed to object at trial to both the evidence and the jury charge. Their failure to object should be given considerable weight and should be fatal to their appeal. The appellants claim that Dr. Bruce’s bias was evident in his reports. The respondents also claim that the fact that the appellants challenged Dr. Fleming’s independence after Dr. Bruce had testified demonstrated that they were alive to the issue of Dr. Bruce’s bias in the course of the trial. Put another way, the respondents argue, the appellants made a conscious choice not to object to Dr. Bruce’s qualification, and there was no miscarriage of justice in this case to warrant ordering a new trial. As long as there is some evidence to support the jury’s verdict, it should not be set aside. It was open to the jury to disbelieve the evidence of the appellants and to conclude that negligence was not proven on a balance of probabilities. [62] The appellants submit that a substantial wrong or miscarriage of justice occurred in this case and that a new trial is warranted, despite their failure to object at trial. The integrity of the administration of justice requires that expert witnesses honour their obligations. There was a real danger that Dr. Bruce’s inappropriate credibility and veracity assessments improperly influenced the jury. The jury’s verdict was tainted by improper evidence and must be set aside. (b) The principles [63] The general principle is that a party in a civil case should not bring an appeal on the basis of some aspect of the lower court proceeding to which it did not object: see Marshall v. Watson Wyatt & Co. (2002), 209 D.L.R. (4th) 411 (Ont. C.A.), at para. 15; Harris v. Leikin Group Inc. , 2014 ONCA 479, 120 O.R. (3d) 508, at para. 53; and Maurice v. Alles , 2016 ONCA 287, 130 O.R. (3d) 452, at para. 25. A party’s failure to object at trial weighs heavily against that party now bringing an appeal because it indicates that trial counsel did not consider that point to be important or of sufficient consequence to require an objection: see Arland and Arland v. Taylor , [1955] 3 D.L.R. 358 (Ont. C.A.), at p. 361; Marshall , at para. 15. [64] An appellant cannot ask for a new trial as of right due to an error during the trial when no objection was made on the point at trial. The failure to have objected at trial is not treated lightly by an appellate court and is usually fatal to an appeal on that point: see Arland , at p. 361; G.K. v. D.K. , 1999 CanLII 935 (Ont. C.A.), at para. 15, leave to appeal refused, [2000] S.C.C.A. No. 415; Marshall , at para. 15. [65] This principle has been invoked in connection with an appellant’s failure at trial to object to a jury instruction or charge: see e.g. Bruff-Murphy , at para. 69; Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board , 2004 CanLII 874 (Ont. C.A.), at para. 22. It is also applicable on the issue of the admissibility of evidence, as an objection to the admissibility of evidence on appeal will not usually succeed unless the objection is made at trial: see Hoang v. Vicentini , 2016 ONCA 723, 352 O.A.C. 358, at para. 63; Marshall at paras. 15, 30; and Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at para. 2.109. [66] A new trial may be ordered in such cases, however, when the court is satisfied that a new trial is necessary in the interests of justice: see Arland , at p. 361; Marshall at para. 15. When an objection is made on appeal that was not made at trial, the focus should be on the question of whether a substantial wrong or miscarriage of justice has occurred: see Marshall at paras. 14-15; Arland at pp. 364-65; Pietkiewicz at paras. 22-28. [67] In sum, this court can exercise its discretion to grant a new trial or other remedy despite the failure of the appellants to object to the jury charge or the admissibility of Dr. Bruce’s evidence if it finds that the errors alleged by the appellants were errors that constituted a substantial wrong or miscarriage of justice and that the interests of justice require granting relief. (c) Did the errors constitute a substantial wrong or miscarriage of justice? [68] As I have indicated above, the trial judge erred in failing to advise the jury that it could not consider Dr. Bruce’s evidence on the respective credibility and reliability of the parties. [69] It is not possible to assess with any certainty the impact of Dr. Bruce’s evidence. That, however, misses the point, which is whether there has been a miscarriage of justice in this case. Given the centrality of credibility in this case, and the absence of any caution about Dr. Bruce’s evidence (apart from summarizing the appellants’ cross-examination of Dr. Bruce), there is a very real possibility that Dr. Bruce’s evidence on credibility and reliability played a significant role in the jury’s decision to find that the standard of care was met by both doctors during the October and November visits. [70] As Hourigan J.A. wrote in Bruff-Murphy at para. 72, “[t]his court has a responsibility to protect the integrity of the justice system. This is not a ‘no harm, no foul’ situation.” The sole witness for the respondents on the issue of standard of care exceeded the admissible scope of his evidence and opined on the credibility of the witnesses, which was highly prejudicial to the appellants. The impugned evidence tainted the jury’s verdict and the verdict must be set aside. [71] For these reasons, I conclude that there has been a miscarriage of justice and a new trial is required. E. Disposition [72] I would allow the appeal, set aside the judgment below, and order a new trial. Costs of the appeal in the agreed amount of $25,000 are payable by the respondents to the appellants. The parties advised us that they had an agreement on the costs below so it is unnecessary for us to address those. Released: April 26, 2021 “G.H.” “A. Harvison Young J.A.” “I agree Grant Huscroft J.A.” “I agree I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Participating Nursing Homes v. Ontario Nurses’ Association, 2021 ONCA 149 DATE: 20210309 DOCKET: C67496 Strathy C.J.O., Benotto, Brown, Huscroft and Zarnett JJ.A. BETWEEN Participating Nursing Homes Applicants (Appellants) and Ontario Nurses’ Association Respondent (Respondent) and Service Employees International Union, Local 1 Respondent (Respondent) David M. Golden and Marco P. Falco, for the appellants Participating Nursing Homes Paul J.J. Cavalluzzo, Adrienne Telford and Lara Koerner Yeo, for the respondent Service Employees International Union, Local 1 Janet Borowy, Danielle Bisnar, and Andrea Sobko, for the respondent Ontario Nurses’ Association Lindsay Lawrence and Aaron Hart, for the respondent, the Pay Equity Hearings Tribunal Fay Faraday, for the intervener, the Equal Pay Coalition Heard: October 6 and 7, 2020 by video conference On appeal from the judgment of the Divisional Court (Regional Senior Judge Geoffrey B. Morawetz and Justices Robbie Gordon and Nancy L. Backhouse), dated April 30, 2019, with reasons reported at 2019 ONSC 2772, affirming in part a decision of the Pay Equity Hearings Tribunal, dated January 21, 2016, with reasons reported at [2016] O.P.E.D. No. 5. Benotto J.A. : [1] The Participating Nursing Homes (“PNH”) appeal the decision of the Divisional Court upholding, in part, a decision of the Pay Equity Hearings Tribunal. The Tribunal directed the parties to negotiate a gender-neutral comparison system (“GNCS”) for maintaining pay equity. The PNH seek a declaration that the Pay Equity Act , R.S.O. 1990, c. P.7 (the “ Act ”) does not require them to further negotiate their maintenance obligation with the respondents by tying the maintenance obligation to how the proxy employer historically valued “male” jobs in its establishment in 1994. For the following reasons – to be read with the companion appeal released concurrently – I would dismiss the appeal. BACKGROUND [2] The PNH are employers who operate up to 143 nursing homes in Ontario. The Ontario Nurses’ Association (“ONA”) is the bargaining agent representing about 2,100 registered nurses and allied health professionals working at nursing homes across the province. The Service Employees International Union, Local 1 (“SEIU”) is the bargaining agent representing a range of health care workers at the PNH, including registered practical nurses, personal support workers, health care aides, and dietary, housekeeping, and recreational aides. (Collectively, the ONA and the SEIU are referred to as “the Unions”.) [3] Employment in the nursing home sector is predominantly female. Consequently, the proxy methodology for establishing pay equity in applies. The proxy method involves a comparison between a key female job class in one employer’s establishment and an analogous female job class in a different (“proxy”) employer’s establishment where pay equity has already been established by way of comparison with a male job class. [4] The female job class from the proxy employer is valued pursuant to a GNCS and the relationship between value and compensation is thus determined. Pay equity is achieved for the key female job class by adjusting its compensation so that the same value/compensation relationship exists for both the key female job class and the proxy female job class. Pay equity is then achieved for the rest of the seeking employer’s job classes by comparison to the key female job classes. [5] The Act requires every seeking employer to prepare a pay equity plan including a description of the GNCS used for the purposes of making the comparisons. [6] In 1995, the PNH and the Unions negotiated and executed a pay equity plan for the entire nursing home sector using as the proxy employer “Unionized Municipal Homes for the Aged Across Ontario” (“Municipal Homes”) and designating health care aides as the seeking employer’s key female job class and the proxy female job class. They agreed that a total weighted average adjustment of $1.50 per hour would achieve pay equity for the health care aides in the employ of the PNH and agreed upon a schedule for implementing the required increase for all job classes. The parties did not agree on a GNCS and did not use a GNCS to evaluate job classes in the PNH and proxy female job classes. The various adjustments contemplated by the pay equity plan were implemented, and by 2005 pay equity had been established. [7] The issue then became how to maintain pay equity as required by the Act. [8] The Tribunal directed that the parties negotiate a GNCS for these reasons: Although the $1.50 Plan may have achieved pay equity, it did so without applying a GNCS.  So long as the skill, effort, responsibility and working conditions of the female job classes in the Homes remained unchanged, and they received the same percentage compensation increases, the absence of a GNCS had no impact on pay equity maintenance.  We have already referred to the uncontradicted evidence before us that there have been significant changes in the clientele and the duties performed in the Homes that may well impact on the value of the job classes.  Those changes make the $1.50 Plan inappropriate because the pay equity consequence of them can only be ascertained by evaluating the job information using a GNCS, which the Proxy Plans lack.  In the unionized environment the selection of a GNCS and its application are matters that the Act contemplates will be negotiated between the employer and the union. Pursuant to our authority under section 25(2) (g) of the Act , the parties are directed to negotiate and endeavor to agree on an amendment to the $1.50 Plan to stipulate a GNCS, and to apply that GNCS to determine whether any maintenance adjustments are required. [9] The Tribunal’s decision was upheld by the Divisional Court. [10] The PNH submit that the Tribunal’s decision was unreasonable because it will “ forever require the PNHs to base their pay equity compensation” on another employer. [11] I disagree. [12] First, the Tribunal clearly has the authority to require compliance with the Act. A GNCS was neither negotiated nor applied as part of the 1995 proxy comparison process. The parties accordingly did not determine the gender-neutral value of the work performed by the female job classes at either the PNH or Municipal Homes. It was the obligation of the employer to prepare a pay equity plan in compliance with the Act . It did not do so, and it was within the Tribunal’s power to direct it to comply. Section 25(2)(g) provides that the Tribunal “ may order a party to a proceeding to take such action or refrain from such action as in the opinion of the Hearings Tribunal is required in the circumstances.” [13] Second, for the reasons set out in the companion appeal, the object of the Act requires ongoing comparison to men. When there are insufficient men in the establishment, there is reference to another employer. That is how the proxy method works . The matter was remitted to the Tribunal to specify what procedures should be used to ensure that the respondents who have established pay equity through the proxy method will continue to have access to male comparators to maintain pay equity. I would direct that the parties comply with the Tribunal’s direction, to negotiate a GNCS and determine whether any maintenance adjustments are required, in conjunction with the procedures specified by the Tribunal as a result of the decision in the companion appeal. [14] I would dismiss the appeal and invite submissions as to costs (limited to 5 pages) within 15 days of the release of this decision. “M.L. Benotto J.A.” “I agree David Brown J.A.” “I agree “B. Zarnett J.A.” Huscroft J.A. (Concurring): [15] I conclude that the Tribunal's decision is reasonable as a whole, including the order that the parties negotiate a GNCS. I would dismiss the appeal for the reasons set out in the companion appeal. Released: March 09, 2021       “GRS” “Grant Huscroft J.A.” “I agree G.R. Strathy C.J.O.”

COURT OF APPEAL FOR ONTARIO CITATION: Patterson v. Patterson, 2021 ONCA 70 DATE: 20210201 DOCKET: M51853 (C68604) Roberts, Zarnett and Sossin JJ.A. BETWEEN William Harold Patterson Applicant/Moving Party (Respondent) and Sarah Anne Elizabeth Patterson, in her personal capacity and in her capacity as the personal representative of the Estate of Sheila Patsy Patterson, and Donald David Oral Patterson Jr. Respondent/Responding Parties (Appellants) Carol Craig, for the appellants Taayo Simmonds, for the respondent Heard: January 27, 2021 by video conference REASONS FOR DECISION [1] The parties bring the following motions: 1) the respondent seeks to quash the appellants’ appeal, as their notice of appeal was served approximately 37 minutes late, and to extend the time for the service and filing of his notice of cross-appeal to vary the order under appeal to provide for leave to bring his passing of accounts application; and 2) the appellants, in their responding factum, move to extend the time for the service of their notice of appeal. [2] These motions arise out of the appellants’ appeal from the order of Justice Brian W. Abrams, dated July 23, 2020, requiring them, among other things, to pass their accounts for the period of time they served as the attorneys for property for the late Sheila Patterson. The appellants are respectively the son and granddaughter of Mrs. Patterson. The granddaughter served as estate trustee for the estate of Mrs. Patterson. They both exercised powers of attorney for Mrs. Patterson during her lifetime. The respondent is also her son. Over the past several years, the parties have been embroiled in high conflict litigation over Mrs. Patterson’s modest estate. [3] As context for the motions, one of the appellants’ principal grounds of appeal is their argument that the motion judge erred by failing to address the leave requirement for the respondent’s passing of accounts application under s. 42(4)(6) of the Substitute Decisions Act, 1992 , S.O. 1992, c. 30. [4] We turn first to the respondent’s motion to extend the time for the service and filing of his cross-appeal. In our view, the justice of the case warrants the requested extension: Rizzi v. Mavros , 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16. The issue of leave is the appellants’ principal focus of their appeal. The respondent requests that this court dismiss the appeal and grant an order varying the motion judge’s order to explicitly state leave was granted. The appellants do not consent to the variance sought nor agree that the respondent can seek that relief without a cross-appeal. He is therefore required to bring a cross-appeal to seek this relief in accordance with r. 61.07(1)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, which indicates that a respondent who seeks to vary the order appealed from must serve a notice of cross-appeal. [5] We do not accept the appellants’ submissions that the cross-appeal will require any duplication or cause prejudice because the respondent can incorporate his submissions on the leave issue in his responding factum and any necessary materials into his responding compendium on the appellants’ appeal. Under r. 61.12(6)(b) of the Rules of Civil Procedure , the appellants are entitled to file a factum as respondents to the cross-appeal. [6] The respondent did not press his motion to quash in oral submissions, given the responding materials filed by the appellant. It is not in the interests of justice to quash the appeal. The cited breach was technical and caused no prejudice. The notice of appeal was served only about 37 minutes late, the appellants’ appeal materials were accepted for filing by this court, and the respondent made no complaint about the timeliness of service until over a month later, when the appellants refused their consent to the filing of his cross-appeal. Disposition [7] We therefore allow the respondent’s motion to extend the time for the filing of his cross-appeal to February 3, 2021, the date requested by the respondent. [8] Given our disposition of the respondent’s motions, it is not necessary for us to consider the appellants’ request for an extension of time, which we therefore dismiss. [9] In accordance with the parties’ agreement, the costs of these motions are reserved to the panel hearing the appeal and the cross-appeal. “L.B. Roberts J.A.” “B. Zarnett J.A. ” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Paulpillai Estate v. Yusuf, 2021 ONCA 196 DATE: 20210329 DOCKET: M51881 (C68024) Doherty, Hoy and Jamal JJ.A. BETWEEN Theresa Yogaranie Paulpillai in her capacity as the Estate Trustee for the Estate of Richmond Gabriel Paulpillai, Theresa Yogaranie Paulpillai and Maneharran Paulpillai Applicants/Respondents (Responding Parties) and Joshua Akanni Yusuf, Meerc Inc. , All Saints University Limited, All Saints University School of Medicine Limited, Avonelle Pinard, David Bruney, Frankie Bellot and Medical Education Examination Resource Center Respondents/Appellants ( Moving Parties ) Osborne G. Barnwell, for the moving parties Edwin G. Upenieks and Angela H. Kwok, for the responding parties Heard: in writing COSTS ENDORSEMENT [1] The parties have agreed that costs of this motion in the amount of $5,000.00 shall be payable by the Respondents/Appellants (Moving Parties on M51881), Joshua Akanni Yusuf, Meerc Inc., All Saints University School of Medicine Limited, Avonelle Pinard, David Bruney, Frankie Bellot, and Medical Education Examination Resource Center, to the Applicants/Respondents (Responding Parties on M51881) by April 26, 2021. We so order. “Doherty J.A.” “Alexandra Hoy J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Pearce v. Canada (Staff of the Non-Public Funds, Canadian Forces), 2021 ONCA 65 DATE: 20210203 DOCKET: C68070 Strathy C.J.O., Rouleau and Coroza JJ.A. BETWEEN Bryan Pearce Plaintiff (Respondent) and Her Majesty the Queen in Right of Canada as represented by the Staff of the Non-Public Funds, Canadian Forces Defendant (Appellant) Alexander M. Gay and Alexandra Pullano, for the appellant Andrew Montague-Reinholdt, for the respondent Heard: November 24, 2020 by video conference On appeal from the order and judgment of Justice Heather J. Williams of the Superior Court of Justice, dated January 24, 2020. Strathy C.J.O.: [1] This appeal raises a single issue concerning the interpretation of s. 236 of the Federal Public Sector Labour Relations Act , S.C. 2003, c. 22, s. 2 (“ FPSLRA ”): does the expression, “termination of employment for any reason that does not relate to a breach of discipline or misconduct” in ss. 236(3), include the common law concept of constructive dismissal? [2] The motion judge held that it does, and allowed the respondent, who was employed by a federal “separate agency,” to pursue his claim for constructive dismissal in the Superior Court. [3] Section 236 of the FPSLRA provides: 236(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute. (2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication. (3) Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under subsection 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct . [Emphasis added.] [4] The motion judge found that the exception in ss. 236(3) means that ss. 236(1) and (2) do not preclude the respondent’s action against the appellant, his former employer. She dismissed the appellant’s motion to dismiss the respondent’s action for want of jurisdiction. [5] For the reasons that follow, I agree, and would dismiss the appeal. I. Factual background [6] The respondent was a non-unionized, 18-year employee of a federal public service entity, the appellant, the Staff of the Non-Public Funds (“SNPF”), Canadian Forces. SNPF is a “separate agency” within the meaning of ss. 236(3) in the FPSLRA . Its operating name is the Canadian Forces Morale and Welfare Services. The respondent’s last position was arena and outdoor facility manager at the Canadian Forces Base Trenton. [7] The respondent quit his job in 2017. In 2018, he commenced a civil action against the appellant, claiming he had been constructively dismissed. He pleaded that, for many years, he was the object of bullying and intimidation by his supervisor, and as a result, he suffered from work-related stress, depression, and insomnia. [8] In 2009, the respondent brought a grievance, alleging that he had been harassed by his supervisor over persistent and largely unfounded allegations of wrongdoing against him. He alleged that although his grievance was resolved, his position was downgraded, and some of his responsibilities were taken away from him. In 2014, his department was reorganized, and he was required to report to a more junior individual. He claimed that his former supervisor continued to harass him. In March 2017, he initiated another grievance for harassment. [9] The respondent pleads that he went on medical leave from March to May 2017, “due to mental health issues arising from the toxic work environment created by [his former supervisor] and permitted by his employer.” Although he returned from this leave in June 2017, he resigned that same month due to the allegedly toxic work environment. He pleads that his resignation was involuntary, and that he was constructively dismissed. He claims damages for constructive dismissal, equivalent to 24 months’ salary and benefits in lieu of notice, as well as moral damages for breach of the duty of good faith and fair dealing, and punitive damages. [10] The appellant, his employer, brought a motion pursuant to r. 21.01(3)(a) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to dismiss the action. The appellant alleged that the respondent’s terms and conditions of employment were governed by the human resources policies of the SNPF, the Financial Administration Act , R.S.C. 1985, c. F-11 (“ FAA ”) and the FPSLRA . The appellant asserted that the respondent had voluntarily resigned from his position, and that the court had no jurisdiction to hear the constructive dismissal claim of a federal government employee. It said that the appropriate recourse for the respondent was the grievance process set out under the FPSLRA . [11] The motion judge dismissed the motion, permitting the respondent’s action to proceed. The respondent’s employer, SNPF, appeals. II. the statutory context [12] In order to give context for the motion judge’s reasons and the parties’ submissions, I will provide an overview of the federal public sector labour relations regime, both in general, and as it relates to employees like the respondent who are employed by a “separate agency.” (1) The FAA : Core public administration and separate agencies [13] Employees in the federal public service are governed by a comprehensive scheme that includes statutes, regulations, collective agreements (in the case of unionized employees), and other governmental directives: Bron v. Canada (Attorney General) , 2010 ONCA 71, 99 O.R. (3d) 749, at para. 13, citing Vaughan v. Canada , 2005 SCC 11, [2005] 1 S.C.R. 146, at para. 1. [14] The FAA is part of that comprehensive scheme. It is described as “[a]n Act to provide for the financial administration of the Government of Canada, the establishment and maintenance of the accounts of Canada and the control of Crown corporations.” Subsection 11(1) of the FAA defines “public service” by distinguishing between the “core public administration” of Canada and other parts of the federal administration, on the one hand, and “separate agencies” identified in Schedule V and other designated parts of the federal public administration, on the other hand. [15] The “core public administration” includes departments of the federal public service and various agencies, boards, and commissions listed in Schedule I and Schedule IV of the FAA . “Separate agencies,” like the SNPF, are the agencies, boards, and commissions listed under Schedule V to the FAA . The Governor in Council has the ability to move a particular agency, board, or commission from Schedule IV to Schedule V and vice versa: see Christopher Rootham, Labour and Employment Law in the Federal Public Service , (Ottawa: Irwin Law, 2007), at pp. 55-56. Schedule III of the FAA governs Crown corporations, which are not subject to the FPSLRA . [16] The distinction between the core public administration and separate agencies is important in this case because the SNPF is a separate agency. Each separate agency has independent status as an employer: Rootham, at p. 58. Other separate agencies include the National Capital Commission, the National Film Board, the National Research Council, and the Parks Canada Agency. Employees in the “core public administration,” by contrast, are employed by the Treasury Board as the delegate of her Majesty in Right of Canada: Rootham, at p. 57. [17] There is a sub-class of separate agencies, referred to as “designated separate agencies,” because they have been designated by the Governor in Council under ss. 209(3) of the FPSLRA . There are, at present, only two such agencies, the Canada Revenue Agency and the Canada Food Inspection Agency: Federal Public Sector Labour Relations Act Separate Agency Designation Order , SOR/2005-59. [18] Counsel agreed that in establishing separate agencies, Parliament intended them to be more “nimble” than the core public administration, operating like the private sector with respect to their labour relations, and giving them greater flexibility in hiring and firing. [19] As an employee of a “separate agency” that had not been designated by the Governor in Council under ss. 209(3) of the FPSLRA , the respondent was a member of a unique class of federal public servants entitled to sue their employer in court pursuant to ss. 236(3) “if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.” [20] Subsection 12(2) of the FAA states that, subject to any terms and conditions directed by the Governor in Council, the “deputy head” of a separate agency (usually the chief executive officer), may, among other things: establish standards of discipline and set penalties, including termination of employment, suspension, demotion to a lower position, or financial penalties; and effectuate the termination of employment or demotion to a lower position for reasons other than breaches of discipline or misconduct. Subsection 12(3), which applies to both separate agencies and the core public administration, provides that any such disciplinary action, termination of employment, or demotion may only be for cause. (2) The FPSLRA [21] The FPSLRA deals comprehensively with labour relations in the federal public service. The preamble to the statute expresses the commitment of the Government of Canada to the fair, credible, and efficient resolution of matters arising in respect of terms and conditions of employment. Section 12 provides for the administration of the statute by the Federal Public Sector Labour Relations and Employment Board (the “Board”). Section 13 provides that the Board is to adjudicate certain applications, disputes, and grievances. [22] Under ss. 208(1) and 236(1) of the FPSLRA , employees of the federal public service, including employees of separate agencies, are required to follow a grievance process if they are aggrieved by the interpretation or application of any statute, regulation, direction, or other instrument made or issued by the employer, that deals with terms and conditions of employment (ss. 208(1)(a)(i)), or as a result of any occurrence or matter affecting the terms and conditions of their employment (ss. 208(1)(b)). The grievance process is internal, and management personnel determine the merits of the grievance: Bron , at para. 14. [23] Employees in the public service who have pursued a grievance up to the final level of the grievance process and are not satisfied with the outcome, are entitled, in certain circumstances, to refer the dispute to adjudication by the Board. However, the path an employee may follow if the grievance is not successful, depends on the nature of the grievance and whether the employee is part of the “core” public administration, a designated separate agency, or an undesignated separate agency. [24] Those paths are set out in ss. 209(1), which provides: 209 (1) An employee who is not a member as defined in subsection 2(1) of the Royal Canadian Mounted Police Act may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award; (b) a disciplinary action resulting in termination, demotion, suspension or financial penalty; (c) in the case of an employee in the core public administration, (i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or (ii) deployment under the Public Service Employment Act without the employee’s consent where consent is required; or (d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct. (2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings. (3) The Governor in Council may, by order, designate any separate agency for the purposes of paragraph (1)(d). [25] In summary, all public sector employees are entitled to adjudication by the Board where their grievance is related to: (a) the interpretation or application of a collective agreement or arbitration award (ss. 209(1)(a)); or (b) disciplinary action resulting in termination, demotion, suspension or financial penalty (ss. 209(1)(b)). Employees in the core public administration are also entitled to refer the dispute to adjudication if their demotion or termination was for unsatisfactory performance or “any other reason that does not relate to a breach of discipline or misconduct”: ss. 209(1)(c). Thus, employees in the core public administration are entitled to refer to adjudication a grievance, relating to the termination of their employment, regardless of whether the reason for their termination was disciplinary or non-disciplinary. [26] Employees of separate agencies, however, can only have their grievances referred to adjudication in limited circumstances. Employees of separate agencies that have been designated by the Governor in Council, under ss. 209(3) of the FPSLRA , may refer their dispute to adjudication if their demotion or termination was “for any reason that does not relate to a breach of discipline or misconduct”: ss. 209(1)(d). Employees of undesignated separate agencies, like SNPF, can only refer their grievance to adjudication by the Board if it relates to the interpretation or application of a collective agreement or arbitration award; or if it relates to a “disciplinary action resulting in termination, demotion, suspension or financial penalty”: ss. 209(1)(a) and (b). The statutory adjudication process is not available for non-disciplinary terminations of employees of separate agencies that have not been designated under ss. 209(3). Those employees are not precluded from access to the courts if they have been terminated for a reason that does not relate to a breach of discipline or misconduct: ss. 236(3). Whereas employees in the core public administration are able to pursue both disciplinary and non-disciplinary terminations by adjudication, employees of undesignated separate agencies have access to the courts for the latter. [27] The result is that undesignated separate agencies have greater flexibility to terminate employees for non-disciplinary reasons because they are not subject to a statutory adjudication process that may result in the re-instatement of the employee. [28] Section 214 of the FPSLRA provides that, except in those cases that may be referred to adjudication under s. 209, “the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken on it.” [29] Thus, the process available to employees of separate agencies, like the respondent, differs from that available to employees in the “core public administration.” Employees in the core public administration and employees of designated separate agencies, covered by ss. 236(1) and (2), have no right of action in the courts in relation to disciplinary and non-disciplinary terminations. Their right is to proceed to grievance and, in some cases, to have the matter referred to adjudication by the Board. [30] Subsection 236(3), on the other hand, gives employees of separate agencies, other than those designated under ss. 209(3), the right to sue “if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.” [31] There is no dispute that the appellant, the SNPF, was not a separate agency that had been designated under ss. 209(3). (3) SNPF grievance policies [32] In addition to being subject to the foregoing statutory scheme, the respondent was also subject to the human resources policies of the SNPF. The Termination of Employment Policy provided full-time, non-unionized employees with severance pay in lieu of notice, equivalent to two weeks pay for the first year of service and one week for each additional year of service, up to a maximum of 28 weeks. It also provided that employees whose employment was terminated for certain reasons were not entitled to notice, payment in lieu of notice, or severance pay. These reasons included: disciplinary discharge; incompetence and/or unsatisfactory performance; failure to meet a bona fide occupational requirement or occupational qualification; failure to raise attendance to a satisfactory level; and ineligibility for continued employment. [33] The SNPF also had a Grievance Policy, which provided that “any employee who feels aggrieved has the right to present a grievance.” The policy gave broad rights of grievance, allowing an employee to file a grievance “as a result of any occurrence or matter affecting the terms and conditions of employment…” (emphasis added). The policy also explained how grievances are to be pursued. It contained both an informal grievance process and a formal grievance process. If an employee did not receive a satisfactory internal resolution of their grievance, they could, in certain circumstances, refer the grievance to adjudication by the Board “in accordance with the [ Federal Public Service Labour Relations ] Act and the Public Service Labour Relations Board Regulations.” The policy did not identify the circumstances in which adjudication is available. III. The Motion Judge’s Reasons [34] The motion judge rejected the appellant’s submission that the respondent’s lawsuit was simply a series of complaints related to his employment, which could have been grieved, but that he had allowed his complaints to accumulate and then claimed constructive dismissal. [35] She explained that although employees in the core public administration had access to third-party adjudication for non-disciplinary terminations through the Board, this was not available to employees of undesignated separate agencies. The latter had a different route by virtue of ss. 236(3) of the FPSLRA . She stated, at paras. 13 and 14: Section 209 of the FPSLRA appears to leave employees such as Mr. Pearce without recourse to an independent decision-maker if their employment was terminated for a reason that was not disciplinary; these employees may grieve a non-disciplinary termination but, with no right of referral to adjudication, under s. 214, the decision at the final level of their agency’s internal grievance procedure is final. This seemingly anomalous distinction between core public administration and “non-designated” (under s. 209(3)) separate agency employees is addressed by the section of the FPSLRA which is at the heart of this motion, s. 236. Section 236 gives the latter group a right of action against the employer. Section 236(1) states that the right to grieve disputes is in lieu of the right to sue but s. 236(3) allows employees of agencies such as the SNPF to sue their employer for a non-disciplinary termination. [36] She found that “even if the essential character of the dispute is a series of grievable events, if one or a combination of those events is or amounts to a non-disciplinary termination, [then] the employee has the right to sue under s. 263(3) [ sic ].” According to the motion judge, termination in ss. 236(3) includes constructive dismissal. She determined that Parliament could not have intended an employee of an undesignated separate agency to have the right to sue for wrongful termination, while that employee did not have a right to sue for constructive dismissal and had to pursue an internal grievance process. IV. The parties’ submissions (1) The Appellant [37] The appellant submits that the word, “termination,” in ss. 236(3) of the FPSLRA does not include common law constructive dismissal. The appellant asserts that, when the statutory scheme is considered as a whole, it is evident that Parliament did not intend to include constructive dismissal in the FPSLRA . Parliament introduced ss. 236(1) and (2) as a “complete bar” to civil actions, like constructive dismissal, and codified ss. 236(3) as a “narrow exception,” applicable to employees of undesignated separate agencies who have been terminated for non-disciplinary reasons. [38] The appellant argues that “any reason that does not relate to a breach of discipline or misconduct” in ss. 236(3) cannot include constructive dismissal because the FPSLRA provides employees, like the respondent, with a comprehensive grievance process to resolve such disputes. Sections 208 and 209 of the FPSLRA allow an employee to grieve all disputes related to their employment, and to appeal up to third-party adjudication by the Board. Subsection 236(3) offers an employee of an undesignated separate agency the ability to sue in court if the employee meets the conditions contained therein. It is the position of the appellant that these two options are put before the employee as an “election,” and that the employee can only pursue one for the resolution of their dispute. The appellant suggests that s. 209 of the FPSLRA , which gives a right to adjudicate a grievance in relation to “disciplinary action resulting in termination, demotion, suspension or financial penalty,” is “robust” enough to address any events or occurrences associated with a claim of constructive dismissal and, thus, ss. 236(3) cannot be used for this purpose. The appellant submits that if ss. 236(3) is read to incorporate constructive dismissal, employees would be able to launch collateral attacks against the FPSLRA regime by “stringing together” otherwise grievable events and occurrences just so they can commence an action in the courts. (2) The Respondent [39] The respondent submits that he had no recourse to the adjudication process because he was not a unionized employee, was not part of the core public administration, his termination was not the result of disciplinary action, and SNPF had not been designated under ss. 209(3) as being subject to adjudication for non-disciplinary terminations. He contends, therefore, that he has recourse to the court under ss. 236(3). [40] The respondent rejects the appellant’s proposition that an employee of a separate agency must make an “election” whether to pursue the grievance process under s. 208, or a court action under ss. 236(3). In the respondent’s view, s. 208 and ss. 236(3) of the FPSLRA serve different purposes. An employee’s failure to grieve can potentially be invoked by the employer as a defence to the constructive dismissal claim, but not as a bar to the commencement of the civil action. V. Analysis [41] This appeal turns on the interpretation of a statute. I turn first to the relevant principles, and then to their application. (1) Principles of statutory interpretation [42] In Re Rizzo & Rizzo Shoes Ltd. , [1998] 1 S.C.R. 27, the Supreme Court adopted the “modern principle” of statutory interpretation as expressed by Elmer Driedger. That principle stipulates that the “words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo , at para. 21; Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. See also Ruth Sullivan, Statutory Interpretation , 3rd ed. (Toronto: Irwin Law, 2016), at pp. 44-45. In the federal legislative context, Driedger’s modern approach is supported by s. 12 of the Interpretation Act , R.S.C. 1985, c. I-21, which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”: see Bell ExpressVu , at para. 26. (2) The context [43] The Supreme Court’s reference to the “entire context” reminds us that words have not only an intrinsic meaning, but that they sometimes take their meaning from their context – i.e. the words that surround them. In ss. 236(3), the words “termination of employment” are followed by the words “for any reason that does not relate to a breach of discipline or misconduct.” We understand from the context that “termination of employment” is to be given a broad meaning (“ any reason”), but that meaning will not include terminations for some reasons, namely, those that relate to a breach of discipline or misconduct. [44] We also know, from the broader context of ss. 236(1), that the right in ss. 236(3) is an exception that applies only to employees of undesignated separate agencies. All other employees, whether part of the core public administration or employed by designated separate agencies, must pursue their non-disciplinary terminations via grievance or third-party adjudication. [45] The logic of these provisions has been explained above and will be revisited when I examine the scheme and object of the legislation. (3) The grammatical and ordinary meaning [46] It is not difficult to determine the plain meaning of the words of ss. 236(3): “if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct” (emphasis added). The language is broad and, on its face, excludes only terminations that are based on breach of discipline or misconduct. [47] The appellant submits that the motion judge erred by improperly “reading in” the word “constructive” into the phrase, “termination of employment,” in ss. 236(3), thereby injecting the common law concept of constructive dismissal into the federal employment regime where it has no place. [48] Constructive dismissal occurs where the employer’s conduct evinces an intention to no longer be bound by the employment contract. When that occurs, the employee has a choice of accepting the conduct, or treating it as a repudiation of the contract and suing for wrongful dismissal: Farber v. Royal Trust Co. , [1997] 1 S.C.R. 846, at para. 33; Potter v. New Brunswick Legal Aid Services Commission , 2015 SCC 10, [2015] 1 S.C.R. 500, at para. 30. The word, “constructive,” indicates that the dismissal is a legal construct: the employer’s act is treated as a dismissal because of the way it is characterized by law: Potter , at para. 30. [49] In Evans v. Teamsters Local Union No. 31 , 2008 SCC 20, [2008] 1 S.C.R. 661, at para. 26, the Supreme Court of Canada confirmed that constructive dismissal is a termination: [T]he very purpose behind recognizing constructive dismissal is to acknowledge that where an employer unilaterally imposes substantive changes to an employment contract, the employee has the right to treat the imposition of those changes as termination . This termination is every bit as “real” as if the employee were actually told of the dismissal…. [Emphasis added.] [50] As Wagner J., as he then was, observed in Potter , constructive dismissal can occur in one of two ways. In the first way, the court determines whether the employer has breached an express or implied term of the contract, and then determines whether the breach was sufficiently serious to amount to constructive dismissal: Potter , at para. 32. In the second way, the court determines whether the employer’s conduct more generally demonstrates an intention to no longer be bound by the contract. For example, “if the employer’s treatment of the employee made continued employment intolerable”: Potter , at para. 33. [51] The second approach is retrospective. As Wagner J. observed in Potter , at para. 33, “it requires consideration of the cumulative effect of past acts by the employer and the determination of whether those acts evinced an intention no longer to be bound by the contract.” [52] The approach is also objective. Under the second branch of the test for constructive dismissal, the question is whether the employer’s conduct, “when viewed in the light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the contract”: Potter , at para. 42. [53] It is precisely this form of constructive dismissal that the respondent relies upon. He pleads that although he resigned, his resignation was involuntary, and occurred due to the toll on his health from the toxic work environment created by his supervisor and his supervisor’s subordinates. This included harassment, groundless complaints against him, the downgrading of his position, and the removal of job responsibilities. This is patently a pleading of constructive dismissal. [54] In my view “termination of employment for any reason” in s. 236 includes the termination of employment by way of constructive dismissal. The interpretation of the words surrounding “termination” in ss. 236(3) supports the conclusion that ss. 236(3) was meant to capture constructive dismissal. As noted earlier, in ss. 236(3), the word “termination,” is followed by the phrase, “for any reason.” As described by Juriansz J.A. in Aviva Insurance Company of Canada v. McKeown , 2017 ONCA 563, 136 O.R. (3d) 385, at para. 21, “[r]eason is a simple but flexible word used in common parlance. It can mean … a justification for some act or decision.” The choice of Parliament to use the word “any” before “reason” indicates that the FPSLRA contemplates an unidentifiable number of justifications for an employee’s termination. Parliament did not attempt to restrict the definition of “termination” beyond the qualification that it could “not relate to a breach of discipline or misconduct.” The only plausible interpretation, when ss. 236(3) is read as a whole, is that Parliament conceptualized “termination” in the “broadest possible terms”: see Brown v. Canada (Attorney General) , 2013 ONCA 18, 114 O.R. 3(d) 355, at para. 55. [55] I do not accept the appellant’s submission that ss. 236(3) should be given a narrow reading. As the motion judge noted, the words “ relates to his or her employment for any reason ” are very broad: see 1704604 Ontario Ltd. v. Pointes Protection Association , 2018 ONCA 685, 142 O.R. 3(d) 161, at para. 65, aff’d 2020 SCC 22. While I accept the proposition that the courts must respect Parliament’s preference for a particular dispute resolution process, such as a grievance procedure and third-party adjudication ( Pleau v. Canada (Attorney General) , 1999 NSCA 159, 181 N.S.R. (2d) 356, at paras. 19-20, leave to appeal refused, [2000] S.C.C.A. No. 83), that does not compel a narrow reading of otherwise broad and unambiguous language permitting a particular class of employees to pursue third-party adjudication in a judicial forum. [56] The appellant’s assertion that some of the respondent’s complaints were grieved and others could have been, misses the mark. Constructive dismissal can be established not only by single events, but it can also occur where the cumulative effect of the employer’s conduct entitles the employee to quit – the labour relations equivalent of the “final straw breaking the camel’s back.” [57] I do not accept the appellant’s submission that constructive dismissal is a common law concept that has no place in the federal labour and employment regime. The appellant cites no judicial authority for this proposition, although he does cite to two decisions of the PSLRB and the PSLREB: Gaskin v. Canada Revenue Agency , 2008 PSLRB 96, at para. 69; Wercberger v. Canada Revenue Agency , 2016 PSLREB 41, at para. 57. In the former, the Board observed that it was “clearly debatable whether the common-law doctrine of constructive dismissal can be applied in this jurisdiction, where the employer’s authority to terminate the employment relationship is precisely defined and circumscribed by statute”: Gaskin , at para. 69. In the latter case, at para. 35, it was suggested that “[t]he doctrine of constructive dismissal has no application to the federal public service as employees in the public sector must be terminated for cause.” [58] Whatever the validity of that proposition in relation to public sector employees in the core administration or in designated separate agencies, the inclusion of ss. 236(3) makes it clear that an employee of an undesignated separate agency may well be terminated for reasons other than “breach of discipline or misconduct” – that is, for reasons other than cause – and preserves a right of action for such dismissals. [59] An employee who has been constructively dismissed cannot be said to have engaged in a breach of discipline or misconduct so as to fall within the exception contained in ss. 236(3). (4) The scheme of the Act, the object of the Act, and the intention of Parliament [60] The modern principle of statutory interpretation requires that the words of a statute be interpreted “harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” The legislative scheme includes the individual provisions, parts, and sections that work together to provide a plausible and coherent plan for the achievement of the statute’s intended purpose: Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Toronto: LexisNexis Canada Inc., 2014), at §13.12. As described by Greshuk J. in Melnychuk v. Heard , 1963 CanLII 815 (Alta. S.C.), at p. 263: The court must not only consider one section but all of the sections of an Act including the relation of one section to the other sections, the relation of a section to the general object intended to be secured by the Act, the importance of the section, the whole scope of the Act and the real intention of the enacting body. [61] In some cases, the legislature may have enacted more than one statute on the same subject-matter or enacted a provision meant to be read alongside another statute. In Re Therrien , 2001 SCC 35, [2001] 2 S.C.R. 3, Gonthier J. explained, at para. 121, that “[i]nterpretations favouring harmony between the various statutes enacted by the same government should indeed prevail. This presumption is even stronger when the statutes relate to the same subject-matter.” The practice of considering multiple statutes in the interpretative exercise has also been codified in ss. 15(2)(b) of the federal Interpretation Act . [62] An interpretation of the provision at issue that promotes the purpose is preferred over one that is not: Sullivan, Statutory Interpretation , at p. 53. As explained by Dickson J. in Covert v. Nova Scotia (Minister of Finance) , [1980] 2 S.C.R. 774, at p. 807: “The correct approach, applicable to statutory construction generally, is to construe the legislation with reasonable regard to its object and purpose and to give it such interpretation as best ensures the attainment of such object and purpose.” The purposive analysis is a staple of modern statutory interpretation. It is not only used when the text under dispute is ambiguous, but “in every case and at every stage” of the interpretive exercise: Sullivan, Statutory Interpretation , at p. 185. [63] The interpretation of “termination” in ss. 236(3) as including constructive dismissal is supported by considering the broader context of the FPSLRA . [64] It will be recalled that ss. 209(1)(b) gives all federal public servants, (other than members of the RCMP), including employees of separate agencies, the right to refer a grievance to adjudication by the Board if it relates to “disciplinary action resulting in termination, demotion, suspension or financial penalty” (i.e. a “disciplinary termination”). However, ss. 209(1)(c) also provides that employees in the core public administration are entitled to adjudication if their grievance relates to (i) demotion or termination under para. 12(1)(d) of the FAA for unsatisfactory performance, or under para. 12(1)(e) of the FAA “for any other reason that does not relate to a breach of discipline or misconduct” (i.e. a “non-disciplinary termination”). [65] Subsection 209(1)(d) makes a further special provision for an employee of a designated separate agency, who may pursue a non-disciplinary termination to adjudication. [66] Thus, to summarize, ss. 209(1)(b) and (c) of the FPSLRA provide employees of the core public administration with an opportunity to have their grievances referred to adjudication regardless of whether the termination is disciplinary or non-disciplinary. Subsections 209(1)(b) and (d) does the same for employees of separate agencies that have been designated under ss. 209(3) of the FPSLRA . [67] There is no provision in s. 209 that gives employees of undesignated separate agencies access to third-party adjudication of their disputes over non-disciplinary terminations. Subsection 236(3) fills this gap, giving those employees access to third-party adjudication through the courts. The language of ss. 236(3), “any reason that does not relate to a breach of discipline or misconduct,” is an exact parallel to ss. 209(1)(d), with the difference being that employees of undesignated separate agencies have access to the courts for such grievances, while employees of designated separate agencies must seek adjudication by the Board. [68] Reading subsection 236(3) together with s. 209 demonstrates a Parliamentary intention to enable all public sector employees to have access to third-party adjudication for their non-disciplinary terminations. The difference is that employees who are part of the core administration and employees of designated separate agencies have access to the Board, while employees of undesignated separate agencies have access to the courts. This distinction is entirely in keeping with the intention of enabling separate agencies to behave more like private enterprises in their labour relations. [69] The purpose of the FPSLRA is to ensure that the “Government of Canada is committed to the fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment.” There is no such fairness if ss. 236(3) of the FPSLRA is read to exclude adjudicative processes for employees of undesignated separate agencies who have been subject to non-disciplinary termination. Neither the FPSLRA nor the FAA draw a distinction between employees of the core public administration and employees of separate agencies so as to justify this differential treatment. In fact, the parties concede that Parliament’s choice to distinguish between the core public administration and undesignated separate agencies appears to have been motivated by the desire to see the latter conduct its labour relations in a manner akin to the private sector. If that is the case, then one would expect that employees of separate agencies will have an avenue by which to seek a resolution of their non-disciplinary terminations. Subsection 236(3) provides that, when read as the respondent proposes. [70] Subsection 236(3) was also enacted after the Supreme Court of Canada released its decision in Vaughan . In Vaughan , the Supreme Court cautioned that, where Parliament has created a comprehensive legislative scheme to deal with labour disputes, the process should not be compromised by permitting parallel access to the courts. The Supreme Court recognized, however, that there may be a residual discretion to access the courts if the grievance procedure did not allow for third-party adjudication. To reach its conclusion, the Supreme Court of Canada interpreted the Public Service Staff Relations Act , R.S.C. 1985, c. P-35 (“ PSSRA ”), the predecessor to the FPSLRA . The PSSRA had a grievance procedure that did not include third-party adjudication with respect to the denial of early retirement benefits. Grievance decisions were also insulated from judicial review by a “final and binding” clause found in the legislation. Parliament responded to Vaughan by repealing the PSSRA and enacting the FPSLRA . Subsection 236(3) was a completely novel provision, one without an equivalent in the PSSRA . [71] The context in which the FPSLRA and, specifically, ss. 236(3) were enacted indicates that Parliament recognized and accounted for the Supreme Court of Canada’s comments on the lack of access to third-party adjudication for federal public service employees. Unlike the PSSRA , the FPSLRA not only offers a comprehensive grievance regime through which employees can contest their terminations, but it also includes the right to third-party adjudication by the Board. At the same time, ss. 236(3) carves out a specific exception for the employees of separate agencies, not designated under ss. 209(3) of the FPSLRA , to access the courts in the limited circumstances of a non-disciplinary termination. (5) Response to the appellant’s other submissions [72] Despite the appellant’s contention, interpreting ss. 236(3) to include non-disciplinary terminations, such as constructive dismissal, does not lead to an absurd result. Subsection 236(3) is part of, and essential to, a fair grievance process for all employees of the federal public service. [73] The decision of the New Brunswick Court of Appeal in Robichaud v. Canada (Attorney General) , 2013 NBCA 3, 398 N.B.R. (2d) 259, referred to by the appellant, has no application. There, the court dismissed an action for constructive dismissal against the Correctional Service of Canada, because the employer was not a separate agency, and the court expressly observed that ss. 236(3) was not applicable. [74] The appellant relies, however, on the decision of the Federal Court in a case involving Parks Canada which, like SNPF, is a separate agency: Robinson v. Canada (Parks Agency) , 2017 FC 613. There, the court struck an employee’s claim for constructive dismissal and other relief, on the basis that the claim disclosed no reasonable cause of action. [75] The motion judge in Robinson found that the determinative issue was whether ss. 236(3) of the FPSLRA applied with respect to the allegations contained in the statement of claim. He held, at para. 25, that it was necessary to determine “the essential character of the dispute in view of the factual context in which it arises and the breadth of the legislative scheme for resolving labour disputes.” He held, at paras. 26-27, that the claim involved matters that were or could have been grieved: In this case, the Plaintiff's claim - that various events during his employment with Parks Canada cumulatively resulted in a constructive or direct dismissal of his employment without cause - is a collateral attempt to attack various decisions and events which are or were otherwise grievable under the [ F ] PSLRA or Parks Canada's Staffing Policies . In my view, each and all of the Plaintiff's claims pertain to occurrences or matters affecting his employment with the Defendant, and the legislative and administrative avenues for redress available to the Plaintiff in this case would be undermined if the Statement of Claim is not struck and the Plaintiff's complaints be allowed to proceed in this Court. Indeed, the second stage of the Plaintiff's grievance has been suspended pending the determination of this motion; that grievance process should be permitted to continue to its ultimate outcome. There is no suggestion in this case that the grievance process could not provide an appropriate remedy to redress the Plaintiff's complaints. [I]n this case, the Plaintiff resigned and retired and did not meaningfully engage the schemes for resolution of workplace disputes available to him when the alleged events occurred; had he done so, the Defendant would have had an opportunity to respond to the disputes and take any necessary corrective steps as intended by these schemes. [76] It appears that in Robinson , the motion judge of the Federal Court accepted Canada’s argument, at para. 23, that “even when the right of action is based on subsection 236(3), the Court has discretion to decline to exercise jurisdiction to entertain a termination claim,” and that the principles in Vaughan should “guide the Court in determining whether it should defer to the comprehensive schemes established by Parliament and decline to exercise jurisdiction.” That argument was not made before us. [77] In my view, respectfully, it is incorrect. As the Federal Court judge in Robinson observed, at para. 20, this court stated in Bron , at para. 28, that the legislation under consideration in Vaughan (the PSSRA ), did not contain a provision similar to s. 236 of the FPSLRA , and “[t]he holding in Vaughan that the Superior Court retained a residual discretion to entertain a claim based on a grievable complaint turned on the language of the PSSRA the legislation in force at the relevant time.” It held that the enactment of the FPSLRA had changed the basic holding in Vaughan . [78] It seems to me that, as regards an employee of an undesignated separate agency, s. 236 does not leave the court with a discretion to accept or decline jurisdiction. The right of an employee to grieve any dispute relating to the terms or conditions of the employee’s employment is in lieu of any right of action unless “the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.” If the dispute falls within the latter category, the court has no residual discretion to refuse to hear it. [79] That being said, I take no issue with the approach in Robinson , which suggests that the court must determine the “essential character” of the dispute to see whether it falls within ss. 236(3). Given the broad language of that subsection, this will usually call for a determination of whether the termination was for something other than a “breach of discipline or misconduct.” I would not foreclose the possibility that a court hearing an action for constructive dismissal might conclude that a series of individually grieved or grievable complaints in a particular case do not cumulatively give rise to a claim for constructive dismissal. [80] With respect, it does not appear that the Federal Court in Robinson considered the purpose of ss. 236(3) or its interpretation. Nor did it consider the unique nature of a claim for constructive dismissal. [81] I contrast Robinson with Haroun v. National Research Council of Canada , 2015 FC 1168. The plaintiff was hired by the National Research Council of Canada (“NRC”) for a two-year term. The NRC is an undesignated separate agency. Mr. Haroun was dismissed before the end of his term for “performance-related” issues. He subsequently brought a grievance under the FPSLRA , in which he alleged that the NRC’s decision was “disguised discipline” and without cause. The grievance was denied. [82] Mr. Haroun then commenced an action against the NRC. The parties moved under Rule 220 of the Federal Court Rules , SOR/98-106, for a determination on a preliminary issue of law – could the plaintiff launch a civil action, or was he required to seek judicial review of the grievance decision? The Federal Court observed, at para. 4, that “at the heart of the impasse” was the interpretation of s. 236 in the FPSLRA . It held, at para. 7 of its decision, that: The scope of section 236 of the PSLRA must be assessed in light of sections 209 and 230, both of which distinguish between performance-based and disciplinary dismissals. Paragraphs 209(1)(c) and (d) restrict the right of adjudication for unsatisfactory performance to core employees of the Public Service or to the employees of designated separate agencies. Section 230 requires that, in such cases, the adjudicator apply the deferential standard of reasonableness. Nowhere do these provisions purport to address or limit a cause of action at common law for the wrongful, non-disciplinary dismissal of employees of separate, undesignated agencies . Instead, the PSLRA consistently recognizes a distinction between core Public Service employees (including the employees of designated separate agencies) and the employees of non-designated separate agencies. [Emphasis added.] [83] The Federal Court went on to state, at para. 9, that [T]he purpose of subsection 236(3) is to preserve a common law right of action for employees of undesignated separate agencies in relation to performance-based terminations. In the face of the clear language used and the gravity of the consequences of termination, it cannot be that Parliament intended that employees like Mr. Haroun be limited to the option of pursuing a restrictive internal grievance with no right to independent adjudication. Indeed, there is no reason to think that Parliament intended to deprive separate agency employees of the right to the independent assessment of the merits of their performance-based terminations. [84] The Federal Court ultimately concluded that Mr. Haroun could move forward with his civil action. Although its reasons referred to performance-based terminations, those observations must be taken in the context of Mr. Haroun’s employment having been terminated for performance-based reasons. It would not be compatible with the broad language of ss. 236(3) (“for any reason that does not relate to a breach of discipline or misconduct”) to confine its operation to only performance-based terminations. [85] Nor would I give effect to the appellant’s argument that allowing the respondent’s claim to proceed will allow every employee of a separate agency to circumvent the grievance process. The respondent’s claim may or may not succeed. In order to succeed, he may be required to establish more than a series of complaints that could individually have been or were pursued through the grievance process. He will have to establish that, viewed individually or cumulatively, the employer’s acts and omissions reached the point that he was entitled in law to say, “I quit,” and to sue for damages. VI. disposition [86] For these reasons, I would dismiss the appeal. I would also order that if the parties are unable to agree on costs, they may make written submissions, to be filed with the registrar. The submissions shall not exceed three pages in length, exclusive of the costs outline. The respondent’s submissions shall be filed within 20 days of the release of these reasons and the appellant shall have 10 days thereafter to file a response. Released: “G.R.S.”   FEB 03 2021 “George R. Strathy C.J.O.” “I agree. Paul Rouleau J.A.” “I agree. S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Pipitone v. D'Amelio, 2021 ONCA 115 DATE: 20210224 DOCKET: C66536 Fairburn A.C.J.O., Doherty and Thorburn JJ.A. BETWEEN Annette Pipitone Applicant (Appellant) and Franco D’Amelio Respondent (Respondent) Annette Pipitone, acting in person Brigitta Tseitlin, for the respondent Heard: February 18, 2021 by video conference On appeal from the order of Justice George A. MacPherson of the Superior Court of Justice, dated May 11, 2018, with reasons reported at 2018 ONSC 2970, and from the costs order, dated September 13, 2018, with reasons at 2018 ONSC 5185. REASONS FOR DECISION [1] The appellant and respondent were married on October 11, 1969. They executed a separation agreement on October 3, 1984 and subsequently divorced in 1985. The appellant later remarried and then divorced a second time. [2] On July 2, 2015, the appellant brought a motion to vary the divorce order from her marriage to the respondent and to set aside the separation agreement as it relates to the waiver of spousal support, thereby seeking retroactive spousal support. She also brought an application for damages arising from alleged physical and sexual assault, mental abuse, and cruelty she is said to have endured prior to the marriage and during the course of the marriage. [3] This is an appeal from the dismissal of both claims. [4] The appellant’s objections can be grouped under three broad headings. The Appellant’s Self-Represented Status [5] First, the appellant argues that, in light of her self-represented status at the motion, the motion judge failed in his obligation to provide her with the assistance she was owed. [6] While the appellant initially had a lawyer assisting her at the motion, counsel withdrew from the record on the tenth day of the motion, after which the appellant did not retain another lawyer. The appellant indicated her agreement to the withdrawal. The motion judge asked the appellant if she intended to retain new counsel. She did not intend to do so. He asked if she was prepared to proceed with the motion, and she confirmed that she was. [7] The appellant points to a number of factors that are said to support her claim of inadequate assistance from the motion judge. For instance, she argues that the motion judge should have informed her of the right to refuse her counsel’s withdrawal from the record, and he should have warned her about the consequences of that withdrawal. [8] We see no basis upon which the appellant could have opposed counsel’s withdrawal from the record. Nor do we see any basis for the claim that the motion judge failed to provide the appellant with assistance throughout the proceeding. To the contrary, the record reveals the motion judge took repeated steps to assist the appellant in navigating her way through the matter. By way of example, he helped her with basic evidentiary issues, explained how to enter exhibits, allowed her to record the proceedings, and explained the stages of examination-in-chief and cross-examination. In addition, the motion judge provided the appellant with an informational guide for self-represented litigants, and he encouraged her to read it. In our view, the appellant was provided with more than adequate assistance from the motion judge. The Allegations of Abuse [9] Second, the appellant argues that the motion judge erred by rejecting her evidence about the allegations of abuse. She raises numerous complaints in this regard, most of which reflect an attempt to relitigate the credibility assessments that lay within the domain of the motion judge. Deference is owed to those assessments. [10] In our view, the motion judge made clear and detailed credibility findings, all of which were rooted in the full evidentiary record before him. In assessing the appellant’s credibility, the motion judge considered the evidence of other witnesses who were familiar with the parties at the time the alleged conduct took place, including the appellant’s mother. As the motion judge noted, some of that evidence contradicted the appellant’s version of events. In making his credibility assessments, the motion judge also considered certain statements that the appellant made in the proceedings relating to the divorce from her second husband, including where she had described the respondent as “the boy next door”. [11] In our view, the motion judge came to credibility conclusions that were rooted in the evidence. We defer to those conclusions. The Historical Records [12] Third, the appellant argues that the motion judge erred by excluding certain historical records from the proceedings, ones that she claims would have corroborated her version of events. We see no error in the motion judge’s decision to exclude the records as inadmissible hearsay. While there is a Catholic Children’s Aid Society record, that may have been admissible to rebut the respondent’s implicit allegation of recent fabrication, considered in context, even if that record had been admitted for that purpose, it would not have had any impact on the manifold reasons given by the motion judge for rejecting the appellant’s credibility in this case. Fresh Evidence and Costs Below [13] The appellant brings a fresh evidence application on appeal, asking this court to admit the excluded records. For the reasons already given, the fresh evidence application is dismissed because the records were not admissible. Even if the one record was admissible, it would not have affected the result. [14] The appellant also challenges the costs award from trial. It is indeed a heavy award, being $192,631. However, the motion judge gave detailed reasons for that award, allowing only for partial indemnity costs. In light of the length of the trial and the document-laden record, this was not an unreasonable amount. We see no error in the motion judge’s decision on costs. The principle of deference applies. Disposition [15] The appeal is dismissed. The fresh evidence application is also dismissed. [16] Written costs submissions were received prior to the hearing of the appeal. Having regard to those submissions and the respondent’s success on appeal, we order that the appellant pay to the respondent his legal costs in the amount of $10,000, inclusive of disbursements and HST. “Fairburn A.C.J.O.” “Doherty J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Qin v. Ontario Securities Commission, 2021 ONCA 165 DATE: 20210318 DOCKET: C68534 Doherty, Pepall and Thorburn JJ.A. BETWEEN Xundong Qin, also known as Sam Qin and Cenith Air Inc. Plaintiffs (Appellants) and Ontario Securities Commission, Christie Johnson, Steve Carpenter and Naomi Chak Defendants (Respondents) Andrew Ostrom, for the appellants Paul Le Vay and Fredrick R. Schumann, for the respondents Heard: February 17, 2021 by video conference On appeal from the order of Justice G. Dow of the Superior Court of Justice, dated April 24, 2020, striking the appellants’ statement of claim: reported at 2020 ONSC 1145. Doherty J.A.: I overview [1] In February 2015, the Ontario Securities Commission (“OSC”), acting under s. 126 of the Securities Act , R.S.O., 1990, c. S.5 (the “Act”), froze the assets of the appellants and related companies. In March 2015, the OSC commenced a proceeding against the appellants and related companies under s. 127 of the Act. In May 2015, Pattillo J., directed that the freeze order should continue: OSC v. Future Solar , 2015 ONSC 2334. In May 2016, a panel of the OSC dismissed the allegations against the appellants and directed the freeze order lifted forthwith: Future Solar Developments Inc. et al. , 2016 ONSEC 17. In May 2018, the appellants sued the OSC and three employees (the “respondents”) for malicious prosecution. [1] [2] The respondents moved to strike the statement of claim on the basis the decision of Pattillo J. estopped the appellants from proving the respondents acted without reasonable and probable cause when they commenced proceedings against the appellants. As proof of the absence of reasonable and probable cause is an essential element of the tort of malicious prosecution, the appellants’ claim could not possibly succeed if they were estopped from proving the absence of reasonable and probable cause. [3] The motion judge accepted the respondents’ submissions and struck the claim. He allowed the appellants 30 days to amend their claim to plead facts not available before Pattillo J. The appellants chose not to amend the claim, but did appeal from the order. For the reasons that follow, I would allow the appeal, set aside the order and return the proceedings to the Superior Court. II the OSC proceedings [4] The appellant, Mr. Qin, and various entities he controlled were involved in the development and management of solar energy projects in Ontario and elsewhere. [2] Mr. Qin attempted to raise capital for his projects, especially in China, using a program sponsored by the Ontario government, which allowed persons who made substantial investments in Ontario-based business to apply for permanent residence status in Canada. Mr. Qin raised several million dollars. Neither Mr. Qin, nor any of his companies were registered to sell securities. No prospectus was filed in connection with Mr. Qin’s efforts to raise funding. [5] The OSC commenced an investigation. In February 2015, it issued an order under s. 126 of the Act, freezing the assets of the appellants and related companies. Section 126 allows the Commission to make that order: If the Commission considers it expedient for the due administration of Ontario’s securities law or the regulation of capital markets in Ontario [6] The OSC, as required by s. 126(5) of the Act, applied to the Superior Court, on notice to the appellants, for an order continuing the freeze order. The application came on before Pattillo J. Section 126(5.1) directs that the freeze order may be continued: If the court is satisfied that the order would be reasonable and expedient in the circumstances, having due regard to the public interest and, (a) the due administration of Ontario’s securities law or the securities law of another jurisdiction; or (b)   the regulation of capital markets in Ontario or another jurisdiction. [7] In March 2015, before Pattillo J. heard the motion to continue the freeze order, the OSC commenced a proceeding under s. 127 of the Act against the appellants. The OSC alleged the appellants had breached s. 25 of the Act by trading in securities without proper registration, and s. 53(1) of the Act, by distributing securities without first filing a prospectus. Under s. 127, the OSC can make any of a variety of orders, provided the order is justified in the public interest. [8] By order dated May 5, 2015, Pattillo J. continued the freeze order imposed by the OSC. His reasons for doing so are at the centre of the issue estoppel argument on which this appeal turns. I will return to those reasons. [9] Subsequent to the order of Pattillo J., the appellants unsuccessfully moved before Commissioner Condon to vary the freeze order: Future Solar Developments Inc. et al. , 2015 ONSEC 25. [10] In May 2016, the Commission heard the merits of the allegations against the appellants. The panel dismissed both allegations: Future Solar Developments Inc. et al. , 2016 ONSEC 17. Commissioner Lenczner, writing for the panel, found the appellants were not mainly engaged in the sale of securities and were not required to register under the Act. He further held the appellants were exempt under the “private issuer” exemption from the requirement of filing a prospectus. III the malicious prosecution lawsuit [11] In their statement of claim, the appellants pleaded the allegations made by the OSC in support of the freeze order in February 2015 and in the statement of allegations in March 2015 were false, made without reasonable and probable cause, and made for a collateral and improper purpose. The appellants further pleaded the respondents had proceeded with the allegations against the appellants after March 2015, despite having been provided with all relevant documents and a full explanation of the nature of the appellants’ business operations, both of which demonstrated those operations were in compliance with the Act. Lastly, the appellants pleaded the proceedings before the OSC had been resolved entirely in their favour. The appellants claimed damages of $100,000,000. IV The motion judge’s decision [12] The respondents moved under r. 21.01(d) to strike the statement of claim. The respondents argued, the decision of Pattillo J. effectively decided there was reasonable and probable cause to initiate the proceedings under the Act against the appellants, and that the appellants were estopped from arguing, in the context of a malicious prosecution claim, the respondents did not have reasonable and probable cause. [13] The motion judge accepted the respondents’ argument. He held the finding of Pattillo J. that there was a serious issue to be tried in respect of the alleged breaches of the Act, raised the same question as did the pleading in the malicious prosecution action alleging the respondents had acted without reasonable and probable cause. The motion judge reasoned that, as essentially the same question had been determined in the proceedings before Pattillo J., the appellants were estopped from re-litigating that issue in the malicious prosecution lawsuit. That estoppel doomed the appellants’ action and warranted an order striking the claim: Qin v. Ontario Securities Commission , 2020 ONSC 1145, at paras. 11-12, 16. V analysis [14] The appellants advanced several arguments. In my view, the appeal can be resolved by addressing one of those arguments. Was the question answered by Pattillo J. on the motion to continue the freeze order the same question that will have to be answered in the civil suit when deciding whether the respondents had reasonable and probable cause to initiate proceedings against the appellants? [15] Although the motion judge referred to both issue estoppel and abuse of process in holding the respondents’ claim could not go forward, he correctly analyzed the arguments by reference to the essential elements of issue estoppel : Qin v. Ontario Securities Commission , 2020, ONSC 1145, at paras. 11, 17. The doctrine of abuse of process may preclude re-litigation that does not meet the exact criteria for issue estoppel : see Winter v. Sherman Estate , 2018 ONCA 703, at para. 7. However, on the facts of this case, there is no basis apart from issue estoppel to argue the malicious prosecution claim constitutes an impermissible re-litigation of decided facts. I will examine the merits of the appellants’ argument solely by reference to the elements of issue estoppel . [16] Issue estoppel protects against the abuse of the court’s process by preventing an unsuccessful party from re-litigating a material fact or issue previously and finally decided in proceedings involving the same parties or their privies. The doctrine is not absolute and will not be applied if the interests of justice dictate otherwise: Danyluk v. Ainsworth Technologies Inc. , 2001 SCC 44, at paras. 20, 24-25, 33. [17] Issue estoppel operates to preclude re-litigation when an issue or material fact that must be decided in the second proceeding raises the same question that was decided in the previous proceeding. Binnie J. explained this requirement in Danyluk , at para. 54: In this case, for example, the existence of an employment contract is a material fact common to both the ESA proceeding and to the appellant’s wrongful dismissal claim in court. Issue estoppel simply means that once a material fact such as a valid employment contract is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law and mixed fact and law that are necessarily bound up with determination of that “issue” in the prior proceedings . [Emphasis added.] [18] Issue estoppel extends to findings that are “necessarily bound up” in the findings made in the prior proceeding. The outcome of this appeal turns on whether a determination the OSC had reasonable and probable cause to commence proceedings against the appellants was “necessarily bound up” in Pattillo J.’s finding that the OSC allegations raised “a serious issue to be tried”. [19] What exactly did Pattillo J. decide? He was required to interpret, as a matter of first impression, s. 126(5.1), a relatively new provision in the Act. [3] Pattillo J. concluded, at para. 31, that the OSC had to establish three things to obtain an order continuing the freeze order. Only the first of those three requirements is relevant here. He framed that requirement in these terms: There is a serious issue to be tried in respect of the respondents’ breaches of the Act or other security laws in another jurisdiction. [20] This requirement speaks to some assessment of the merits of the allegations, but only in a very limited way. Just how limited is made clear by Pattillo J., at para. 28, where he describes the “serious issue to be tried” standard as: A lesser standard than the requirement to establish a strong prima facie case or even a prima facie case. [21] A prima facie case is one which, if unanswered, would justify, although not compel, a finding in favour of the party advancing that case. In the context of a s. 126(5) hearing, a finding of a prima facie case may be the equivalent of a finding of reasonable and probable cause to believe the appellants had breached the Act. Pattillo J., however, expressly indicated he was assessing the merits of the OSC’s allegations on the “lesser standard” captured by the phrase “serious issue to be tried”. That standard comes from the interlocutory/stay jurisprudence and is used to describe a claim which, upon a preliminary assessment, is said to rise above the level of a frivolous or vexatious claim. The merits threshold described by the phrase “serious issue to be tried” is clearly a low one: see RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311, at 337; American Cyanamid v. Ethicon Ltd. , 1975 A.C. 396, at pp. 404-405 (H.L.). In my view, a finding a claim is not frivolous or vexatious does not answer the question whether the same claim is based on reasonable and probable cause. [22] The “serious issue to be tried” standard and the reasonable and probable cause standard are qualitatively different. The reasonable and probable cause standard invites scrutiny of the record to determine the likelihood or probability, at the time the proceedings were commenced, that the OSC could ultimately establish the allegations. The “serious question to be tried” standard addresses the preliminary question of whether the OSC had provided a sufficient basis upon which it could be said the allegations had some merit warranting the continuation of the freeze orders and related investigative steps. Viewed in their proper context, it is clear the presence of reasonable and probable cause does not flow from a finding of a “serious issue to be tried” and cannot be described as “necessarily bound up” in that finding. [23] Although the different standards engaged by the “serious issue to be tried” question and the reasonable and probable cause question are enough to conclude issue estoppel cannot apply, the appellants point to a second related and equally compelling reason for reaching that result. [24] In considering whether there was a serious issue to be tried concerning the merits of the allegations made against the appellants, Pattillo J. indicated he would not assess the merits of the exculpatory material placed before the court on the motion: OSC v. Future Solar , 2015 ONSC 2334, at paras. 36-37. The approach taken by Pattillo J. reflects the preliminary nature of his assessment of the merits of the allegations. The matter was still in the investigative stage. Pattillo J. was asked to freeze assets so that those assets might eventually be available, depending on any disposition the OSC might make under s. 127 of the Act. At this stage, Pattillo J. was not engaged in an assessment of the ultimate merits, which would include any explanations offered by the defence. [25] While the relatively narrow evidentiary focus taken by Pattillo J. makes sense in the context of a s. 126(5) motion, a broader inquiry is required when assessing whether the respondents had reasonable and probable cause. As explained in Miazga v. Kvello Estate , [2009] 3 S.C.R. 339, at 375-76, reasonable and probable cause, in the context of prosecutions initiated by public prosecutors, requires a determination of whether, objectively viewed, the facts known to the prosecution when it was undertaken, provided reasonable and probable cause to initiate the proceeding. This exercise engages an examination of all of the facts known to the prosecution when it initiated proceedings. Those facts include facts known to the prosecution which could exculpate the would-be targets of the prosecution. Further, as set out above, the totality of the facts known to the prosecution must be measured, not against the “serious issue to be tried” standard, but against the more demanding reasonable and probable cause standard. [26] Had Pattillo J. been called upon to decide whether the OSC had reasonable and probable grounds to commence proceedings against the appellants, he would have been required to consider the merits of the exculpatory information the appellants had provided to the OSC. Pattillo J. expressly, and properly in my view, declined to engage in that exercise in the context of a motion to continue the freeze order. [27] I come back to the question – what did Pattillo J. decide? He determined the freeze order made by the OSC should be continued under the criteria he described in his reasons. Those criteria did not require the OSC to demonstrate reasonable and probable grounds to take proceedings against the appellants. Nothing decided by Pattillo J. would preclude the appellants from arguing the OSC did not have reasonable and probable grounds to believe the appellants had breached the Act, either when they initiated the freeze order, or when they commenced proceedings. [28] In holding that issue estoppel does not apply, I do not suggest the decision of Pattillo J., to the extent it addresses the merits of the allegations, does not have evidentiary value when it comes to deciding whether the appellants have proved the respondents did not have reasonable and probable cause to commence proceedings: Miazga v. Kvello Estate , at para. 97. VI conclusion [29] I would allow the appeal, set aside the order striking the appellants’ statement of claim, and remit the matter to the Superior Court. [30] I would award the appellants costs of the motion, fixed at $7,000 “all in”, and costs on the appeal, fixed at $6,000 “all in”. Released: “March 18, 2021” “DD” “Doherty J.A.” “I agree S.E. Pepall J.A.” “I agree Thorburn J.A.” [1] The appellants also alleged “negligent investigation”, but have abandoned that claim. [2] The appellants maintain that, unlike the other corporate entities, Cenith Air Inc. was involved in the manufacture of air purifiers and had no involvement in any solar energy project. I need not address that claim as, on my analysis, it has no relevance to the outcome of the appeal. [3] The correctness of Pattillo J.’s interpretation of s. 126(5.1) is not in issue on this appeal.

COURT OF APPEAL FOR ONTARIO CITATION: Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2021 ONCA 287 DATE: 20210503 DOCKET: C67832 Fairburn A.C.J.O., Feldman and Nordheimer JJ.A. BETWEEN Quickie Convenience Stores Corp. Applicant (Appellant) and Parkland Fuel Corporation Respondent (Respondent) William C. McDowell, Brian Kolenda and Vinayak Mishra, for the appellant Linda M. Plumpton and Jonathan Silver, for the respondent Heard: in writing On appeal from the judgment of Justice Paul B. Kane of the Superior Court of Justice dated November 14, 2019, with reasons reported at 2019 ONSC 6520. COSTS ENDORSEMENT [1] On July 10, 2020, we released our decision in which we allowed the appeal, set aside the order below and, in its place, granted an order providing the appellant with the declaratory relief that it sought in its Notice of Application. We awarded the appellant the costs of the appeal fixed in the agreed amount of $3 5,000 inclusive of disbursements and HST. We then invited the parties to make written submissions on the costs of the original application. While the parties filed their costs submissions in accordance with the schedule set by the court, due to an administrative error, those submissions were only very recently provided to the panel. We have now reviewed those submissions. [2] The appellant asks for its costs of the appeal on a substantial indemnity basis in the amount of $230,313.09 on the basis of the conduct of the respondent that led up to this proceeding. In the alternative, the appellant seeks costs in the amount of $174,978.68, representing 60% of its actual costs. [3] The respondent does not dispute that the appellant is entitled to its costs of the application but submits that there is no basis for an award of substantial indemnity costs. The respondent also submits that the amount of costs sought is excessive. It says that a reasonable amount would be no more than $85,000. [4] Contrary to the appellant’s submissions, we do not consider the conduct of the respondent to be such as to warrant an award of costs on the elevated substantial indemnity scale. As has been observed in many cases, costs on the elevated scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct: see, most recently, Montréal (Ville) v. Octane Stratégie inc. , 2019 SCC 57, 440 D.L.R. (4th) 1, at para. 95. The conduct of the respondent in this case does not rise to that level, even with the finding of bad faith dealing. An award of partial indemnity costs is appropriate. [5] In our view, an award of costs in the amount of $100,000 inclusive of disbursements and HST is a fair and reasonable amount to fix for the costs of the original application. In fixing that amount, we have taken into account a number of factors including the fact that the application judge awarded the respondent costs of $52,900 on the original application, that the appellant would have had a heavier burden as the applicant, and that neither party was successful on all of the issues raised. [6] The respondent is ordered to pay that amount to the appellant. “Fairburn A.C.J.O.” “K. Feldman J.A.” “I.V.B. Nordheimer J.A.”

MISE EN GARDE Le président du comité qui entend cet appel ordonne que l’ordonnance suivante soit jointe au dossier : L’ordonnance limitant la publication dans cette instance, en vertu des paragraphes 486.4 (1), (2), (2.1), (2.2), (3) ou (4) ou en vertu des paragraphes 486.6 (1) ou (2) du Code criminel , est maintenue. Ces dispositions du Code criminel prévoient ce qui suit : 486.4(1) Sous réserve du paragraphe (2), le juge ou le juge de paix qui préside peut rendre une ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit tout renseignement qui permettrait d’établir l’identité de la victime ou d’un témoin dans les procédures relatives à : a) l’une des infractions suivantes; (i) une infraction prévue aux articles 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 ou 347, (ii) une infraction prévue par la présente loi, dans toute version antérieure à la date d’entrée en vigueur du présent sous-alinéa, dans le cas où l’acte reproché constituerait une infraction visée au sous-alinéa (i) s’il était commis à cette date ou par la suite , (iii) [Abrogé, 2014, ch. 25, art. 22(2).] b) deux infractions ou plus dans le cadre de la même procédure, dont l’une est une infraction visée à l’alinéa a ). (2) Dans les procédures relatives à des infractions visées aux alinéas (1) a ) ou b ), le juge ou le juge de paix qui préside est tenu : a ) d’aviser dès que possible les témoins âgés de moins de dix-huit ans et la victime de leur droit de demander l’ordonnance ; b ) de rendre l’ordonnance, si le poursuivant, la victime ou l’un de ces témoins lui en fait la demande. (2.1) Sous réserve du paragraphe (2.2), le juge ou le juge de paix qui préside peut rendre une ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit tout renseignement qui permettrait d’établir l’identité de la victime âgée de moins de dix-huit ans dans les procédures relatives à toute infraction autre que celles visées au paragraphe (1). (2.2) Dans les procédures relatives à toute infraction autre que celles visées au paragraphe (1), le juge ou le juge de paix qui préside est tenu, si la victime est âgée de moins de dix-huit ans : a ) d’aviser dans les meilleurs délais la victime de son droit de demander l’ordonnance ; b ) de rendre l’ordonnance, si le poursuivant ou la victime lui en fait la demande. (3) Dans les procédures relatives à une infraction visée à l’article 163.1, le juge ou le juge de paix rend une ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit tout renseignement qui permettrait d’établir l’identité d’un témoin âgé de moins de dix-huit ans ou d’une personne faisant l’objet d’une représentation, d’un écrit ou d’un enregistrement qui constitue de la pornographie juvénile au sens de cet article. (4) Les ordonnances rendues en vertu du présent article ne s’appliquent pas à la communication de renseignements dans le cours de l’administration de la justice si la communication ne vise pas à renseigner la collectivité. 486.6(1) Quiconque transgresse une ordonnance rendue conformément aux paragraphes 486.4(1), (2) ou (3) ou 486.5(1) ou (2) est coupable d’une infraction punissable sur déclaration de culpabilité par procédure sommaire. (2) Il est entendu que les ordonnances mentionnées au paragraphe (1) visent également l’interdiction, dans les procédures pour transgression de ces ordonnances, de diffuser ou de publier de quelque façon que ce soit tout renseignement qui permettrait d’établir l’identité de la victime, du témoin ou de la personne associée au système judiciaire que l’ordonnance vise à protéger. 2005, ch. 32, art. 15. COUR D’APPEL DE L’ONTARIO RÉFÉRENCE : R. c. F.J., 2021 ONCA 268 DATE : 20210430 DOSSIER : C66173 Les juges van Rensburg, Benotto et Thorburn ENTRE Sa Majesté la Reine Intimée et F.J. Appelant David Parry, pour l’appelant Vallery Bayly, pour l’intimée Date de l’audience : le 3 décembre 2020 par visioconférence En appel de la condamnation prononcée le 27 juillet 2018 et de la peine imposée le 19 décembre 2018 par la juge Michelle O’Bonsawin de la Cour supérieure de justice, dont les motifs figurent à 2018 ONSC 4587. La juge Thorburn : A. SURVOL [1] L’appelant a été reconnu coupable des infractions de contacts sexuels, incitation à des contacts sexuels et agression sexuelle par rapport à la plaignante, N.J., contrairement aux arts. 151, 152 et 271 du Code criminel , L.R.C. 1985, c. C‑46. Le 19 décembre 2018, la juge de procès a prononcé un arrêt des procédures pour les chefs d’accusation en vertu des arts. 152 et 271 du Code criminel . L’appelant a reçu une peine d’emprisonnement de deux ans moins un jour pour les contacts sexuels. [2] Il interjette appel de sa condamnation et il fait demande d’autorisation d’appel de sa peine. [3] La plaignante a décrit plusieurs incidents qui ont eu lieu quand elle avait l’âge de 12 ans. [4] La plaignante a dit que le premier incident s’est déroulé chez ses grands-parents maternels. Elle est allée acheter des bonbons à un magasin. Au retour, elle regardait des bandes dessinées avec ses cousines. L’appelant (son oncle) était assis à côté d’elle sur le divan. Il a chuchoté de prendre un bonbon « Strap », d’aller dans la salle de toilette et de mettre le bonbon sur son vagin. La plaignante a obéi et a par la suite donné le bonbon à l’appelant. [5] La plaignante a décrit un deuxième incident qui a eu lieu quand l’appelant la conduisait chez elle pour chercher ses vêtements afin qu’elle puisse coucher chez ses cousines. Rendu chez elle, l’appelant lui a demandé de baisser ses pantalons et de se mettre à quatre pattes. Ensuite, l’appelant a frappé ses fesses nues. Il lui a demandé de lever son chandail et de lui montrer ses seins. Il n’a pas touché les seins de la plaignante. Par la suite, il lui a ordonné de remettre ses vêtements. Avant de sortir de chez elle, l’appelant l’a embrassée. [6] La plaignante a aussi témoigné que l’appelant l’a embrassée : près de la salle de lavage dans l’immeuble des grands-parents ; dans l’ascenseur de l’immeuble des grands-parents ; dans le salon de l’appelant ; et à l’entrée à l’arrière de l’immeuble des grands-parents. De plus, la plaignante a témoigné que l’appelant lui a demandé de sucer son pouce dans le sous-sol de l’appelant. [7] La question principale en litige que la juge de procès devait résoudre concernait la crédibilité et la fiabilité des témoins, notamment la plaignante et l’appelant. [8] L’appelant interjette appel de sa condamnation et fait demande d’autorisation d’appel de sa peine d’emprisonnement pour les raisons suivantes : 1. En trouvant qu’il y avait preuve d’une absence de motif pour fabriquer, la juge de procès a renversé le fardeau de la preuve ; 2. La juge de procès a utilisé les déclarations antérieures compatibles de la plaignante pour renforcer sa crédibilité ; 3. La juge de procès a accepté le témoignage de la plaignante sur des questions fondamentales, malgré les incohérences, parce que la plaignante était enfant ; 4. La juge de procès a accordé trop d’importance au comportement de la plaignante quand elle témoignait ; et 5. La juge de procès n’a pas accordé assez d’importance aux circonstances atténuantes de l’appelant lors de la détermination de la peine et elle a erré en imposant une peine manifestement non indiquée. [9] L’intimée demande que l’appel soit rejeté pour les raisons suivantes : 1. La juge de procès a répondu aux représentations de la défense que la plaignante avait un motif pour fabriquer en lien avec les allégations de sa cousine. Elle n’a pas renversé le fardeau de la preuve en concluant que la plaignante n’avait pas fabriqué les allégations ; 2. La juge de procès n’a pas utilisé les déclarations antérieures compatibles de la plaignante pour renforcer sa crédibilité. Elle s’est servie de ces déclarations pour répondre aux représentations de la défense qu’il y avait des incohérences importantes au sein de sa preuve ; 3. La juge de procès a évalué la preuve de la plaignante à la lumière de son jeune âge selon les principes de droit applicables ; 4. La juge de procès n’a pas accordé trop d’importance au comportement de la plaignante. Le comportement n’était qu’un facteur parmi plusieurs qui ont mené la juge de procès à retenir la preuve de la plaignante ; et 5. La juge de procès n’a pas exercé son pouvoir discrétionnaire de façon déraisonnable en soupesant les circonstances aggravantes et atténuantes. De plus, la peine est raisonnable. [10] Pour les motifs qui suivent, l’appel est rejeté. B. ANALYSE (1) La norme de contrôle [11] L’évaluation de la crédibilité des témoins par la juge de procès commande la retenue judiciaire en appel. Cependant, l’évaluation des erreurs de droit permet une intervention en appel : R. v. Luceno , 2015 ONCA 759, 331 C.C.C. (3 e ) 51, au para. 34 ; R. v. Lacombe , 2019 ONCA 938, 383 C.C.C. (3 e ) 114, au para. 32. (2) Le traitement du motif pour fabriquer [12] L’appelant maintient que la juge de procès a erré en traitant une absence de preuve de motif pour fabriquer comme preuve d’une absence de motif pour fabriquer et, par conséquent, la juge de procès a renversé le fardeau de la preuve. L’appelant prétend que la preuve entendue lors du procès n’était pas capable de prouver une absence définitive de motif pour fabriquer. Selon l’appelant, la juge de procès a conclu qu’il y avait preuve d’une absence de motif pour fabriquer quand elle a dit que la plaignante « n’a pas de raison pour mentir » et quand la juge de procès a souligné, « je ne crois pas que D.J. et [la plaignante] ont créé un complot tel qu’allégué par la [d]éfense » et « je ne crois pas que [la plaignante] a inventé ses allégations contre [l’appelant] ». (a) Le droit concernant le motif pour fabriquer [13] L’absence d’un motif pour fabriquer est un facteur pertinent dans l’analyse de la crédibilité des témoins, mais « [w]hat must be avoided … is any suggestion that … the absence of a demonstrated motive to fabricate necessarily means that there was no motive [to fabricate] » : R. v. Batte (2000), 145 C.C.C. (3 e ) 449, au para. 121. [14] Dans l’arrêt R. v. Bartholomew , 2019 ONCA 377, 375 C.C.C. (3 e ) 534, aux paras. 21-23, 25 et 28, le juge Trotter a fait une analyse détaillée de l’utilisation du motif pour fabriquer : An ulterior motive, or a motive to fabricate, on the part of a complainant may be … important. However, problems occur when … there is no apparent motive to fabricate, but the evidence falls short of actually proving absence of motive. In these circumstances, it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth . People may accuse others of committing a crime for reasons that may never be known, or for no reason at all[.] Therefore, there is a “significant difference” between absence of proved motive and proved absence of motive [.] The reasons are clear. In R. v. B. (R.W.) (1993), 24 B.C.A.C. 1 (C.A.), Rowles J.A. explained, at para. 28: “it does not logically follow that because there is no apparent reason for a motive to lie, the witness must be telling the truth.” This point was made in [ R. v. L.L. , 2009 ONCA 413, 244 C.C.C. (3d) 149] , in which Simmons J.A. said, at para. 44: “the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate”[.] More importantly, evidence of a good relationship between the complainant and the appellant was not capable of proving that the complainant had no motive to fabricate; it could do no more than support the conclusion of an absence of evidence of a proved motive[.] This state of affairs was not capable of enhancing the complainant’s credibility, as the trial judge did. At best, it was a neutral factor. [T]he trial judge’s findings on the issue of motive formed an important part of her credibility assessment of the complainant. She used her finding of a proved absence of motive to enhance the credibility of the complainant, which was a central issue at trial. This amounted to a miscarriage of justice warranting a new trial. [Citations omises ; soulignements ajoutés.] [15] Dans l’arrêt R. v. L.L. , 2009 ONCA 413, 244 C.C.C. (3 e ) 149, au para. 45, la juge Simmons a prononcé le suivant : [E]vidence of a good relationship does “no more than reinforce the absence of evidence of proved motive.” The same reasoning applies to evidence of negative consequences that may ensue from making serious allegations. Although they highlight the significance of absence of evidence of motive, they do not prove the absence of a hidden motive. [Notes omises.] [16] Dans l’arrêt R. v. Ignacio , 2021 ONCA 69, au para. 22, autorisation de pourvoi à la C.S.C. demandée, 39552, la juge Pepall cite la prononciation suivante du juge de procès : « I note as well that [the complainant] had no motive to falsely accuse Mr. Ignacio of a serious crime ». Dans Ignacio , aux paras. 25-26, l’appelant a soumis qu’en trouvant qu’il y avait preuve d’une absence de motif pour fabriquer, le juge de procès a renversé le fardeau de la preuve. [17] Dans son analyse, aux paras. 34-36 de Ignacio , la juge Pepall a prononcé le suivant : [I] am not persuaded that the trial judge found that the Crown had proven no motive to fabricate. If that had been the case … the Crown would have had “a powerful platform” to assert that the complainant was telling the truth. One would expect such a finding to play a much more prominent role in the trial judge’s analysis of credibility than it did. Instead, it simply amounted to an “observation” and “a factor to consider”, to use the trial judge’s words. Moreover, the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate. In the context of the defence submissions, he was entitled to look to the evidence for any suggestion of motive and conclude that there was no such evidence. The trial judge’s reference to the state of the relationship between the complainant and the appellant does not reflect a finding that the complainant had no motive to fabricate. It is equally consistent with a finding that there was no evidence of any motive to fabricate. In my view, the language the trial judge used and the context are much more reflective of a finding that there was an absence of evidence of any motive to fabricate. The trial judge did not find that the Crown had proven that the complainant had no motive to fabricate. He effectively found that there was an absence of evidence of any motive to fabricate, and he treated this finding as one factor in the credibility analysis. [Soulignements dans l’original.] (b) L’application du droit aux faits [18] L’appelant a soutenu que la plaignante aurait pu être motivée par sa cousine D.J. pour fabriquer ses allégations. [19] D.J., une des filles de l’appelant, a accusé l’appelant d’avoir commis des infractions sexuelles contre elle. Entre le 21 novembre 2013 et le 3 novembre 2015, l’appelant était assujetti à un engagement de mise en liberté. À la suite d’un procès, l’appelant a été acquitté de toutes les infractions le 3 novembre 2015. [20] Pendant son interrogatoire principal, la plaignante a soutenu qu’elle avait connaissance de ce qui s’est passé avec D.J., mais pas en grand détail. La famille en parlait, mais personne ne croyait les allégations de D.J. La plaignante avait peur que sa famille ne la croie pas non plus. D.J. était à l’école secondaire et la plaignante était à l’école intermédiaire. Ces écoles étaient dans le même édifice. D’après la plaignante, elles se voyaient rarement, elles se parlaient seulement quand elles se croisaient dans les couloirs de l’école et elles n’ont jamais discuté de leurs allégations contre l’appelant. [21] En contre-interrogatoire, la plaignante a témoigné qu’elle ne savait pas où D.J. est allée habiter après avoir quitté la maison de l’appelant. Par la suite, elle a dit que D.J. est venue habiter chez elle et sa mère pour une période, mais elle a maintenu qu’elle n’avait pas discuté des allégations avec D.J. Elle a dit qu’elle avait oublié et a expliqué que sa mémoire n’est « pas très bonne ». La mère de la plaignante a confirmé la preuve de la plaignante que D.J. avait passé moins d’un mois chez eux en 2013 et que la plaignante et D.J. ne passaient pas beaucoup de temps ensemble pendant cette période. [22] D.J. a aussi témoigné pendant le procès de l’appelant. Notamment, elle a témoigné qu’elle a fréquenté la même école que la plaignante pendant deux ans et qu’elles ont vécu ensemble durant la période en question, mais pas pour longtemps. Elle a témoigné qu’en 2016, elle avait envoyé un message à ses sœurs, indiquant que « tout va changer, on va pouvoir se revoir ». L’explication donnée est qu’elle voulait faire une application à la cour pour obtenir la garde de ses sœurs. De plus, elle a nié avoir discuté ses allégations contre l’appelant avec la plaignante. [23] A.J., la sœur de D.J., a confirmé qu’elle a reçu le message de D.J. avant qu’elle ait appris les allégations de la plaignante. Aussi, la plaignante lui a parfois donné des nouvelles à propos de D.J. après l’avoir vue à l’école. [24] La juge de procès a trouvé que l’argument de la défense que la plaignante aurait pu être motivée par les allégations de D.J. contre l’appelant « n’est pas supporté par la preuve » et « [i]l [n’y a] pas de preuve qui démontre que [la plaignante] voulait se venger contre [l’appelant] ». [25] Selon la juge de procès, en « évaluant la totalité de la preuve, je suis d’accord [que la plaignante] n’a pas créé de la preuve ou menti ». Mis en contexte, cette citation démontre que la juge de procès n’a tout simplement pas accepté l’argument de la défense que la plaignante aurait pu être motivée par les allégations de D.J. De plus, pour soutenir sa conclusion que « [la plaignante] est un témoin crédible », la juge de procès a cité les facteurs suivants : a) La plaignante aimait ses cousines, et d’après la juge de procès, elle n’aurait pas inventé de telles accusations pour détruire sa relation avec ses cousines qu’elle considérait comme ses meilleures amies ; b) La réaction familiale aux allégations de D.J. était très négative ; c) La divulgation de la plaignante à son amie en octobre 2015 soutient l’argument de l’intimée qu’il n’y a pas eu de fabrication récente de la plaignante ; d) Cette divulgation à l’amie de la plaignante a eu lieu avant l’acquittement de l’appelant des accusations de D.J. ; e) La plaignante et D.J. ont témoigné qu’elles n’avaient jamais discuté des allégations ; f) La mère de la plaignante a témoigné que la plaignante et D.J. ne passaient pas beaucoup de temps ensemble et qu’elle ne les a jamais entendues discuter des allégations ; g) Il y avait une absence de motif pour fabriquer, selon la juge de procès ; et h) Le comportement de la plaignante lors de son entrevue avec la police et lors de son témoignage au procès et la corroboration de la preuve de la plaignante par d’autres témoins pointent à la crédibilité de la plaignante. [26] Cette considération de plusieurs facteurs pour évaluer la crédibilité de la plaignante est semblable à la conclusion de la cour dans l’arrêt Ignacio , au para. 3, que « [p]laced in context, the trial judge rejected the motive to fabricate argument advanced by the appellant. He was entitled to consider the absence of evidence of a motive to fabricate as one of many factors in his credibility analysis ». En gardant ce contexte à l’esprit, il est possible de conclure que la juge de procès a déterminé qu’il y avait une absence de preuve de motif pour fabriquer et non une preuve d’absence de motif pour fabriquer. Si la juge de procès a conclu qu’il y avait une preuve d’absence de motif pour fabriquer, « [o]ne would expect such a finding to play a much more prominent role in the trial judge’s analysis of credibility than it did » : Ignacio , au para. 34. Comme dans Ignacio , au para. 59, la juge de procès en l’espèce « considered the complainant’s credibility independent from [the] conclusion that there was an absence of evidence of a motive to fabricate. [T]he issue of motive to fabricate had been raised by the defence and the trial judge felt obliged to address it ». Pour la juge de procès en l’espèce, l’absence de preuve de motif pour fabriquer était tout simplement un facteur parmi plusieurs à considérer dans l’évaluation de la crédibilité de la plaignante : voir Ignacio , au para. 59. [27] De plus, la juge de procès n’avait aucun doute raisonnable de la culpabilité de l’appelant pour ces raisons et les raisons additionnelles suivantes : a) La description de la plaignante de l’incident où l’appelant a demandé à la plaignante de frotter un bonbon contre son vagin était un « fait bizarre qui ne vient pas à l’esprit facilement » et qui semblait réel ; b) Il était logique que l’appelant ait dirigé la plaignante à des endroits où les caméras dans l’immeuble des grands-parents ne l’enregistreraient pas en train d’embrasser la plaignante , contrairement aux représentations de la défense que l’appelant n’aurait pas pris le risque de l’embrasser dans les lieux publics de l’immeuble ; c) A.J. avait corroboré la preuve de la plaignante que les cousines mangeaient les bonbons « Strap » et regardaient des bandes dessinées chez les grands-parents à l’époque des incidents, contrairement à l’appelant qui avait nié que les filles regardaient des bandes dessinées à cette époque ; d) A.J. avait corroboré la preuve de la plaignante que l’appelant s’asseyait parfois sur le divan chez les grands-parents ; et e) Le noyau des allégations restait cohérent. [28] En somme, la juge de procès a rejeté la théorie de la défense que la plaignante avait un motif pour fabriquer les allégations et, après avoir rejeté cet argument, elle s’est fondée sur l’ensemble des facteurs cité au para. 25 de cette décision pour accepter la preuve de la plaignante. [29] De plus, bien qu’elle ait cité l’absence de motif pour fabriquer parmi les facteurs qu’elle avait considérés en acceptant la preuve de la plaignante, la juge de procès s’est fondée sur un ensemble de facteurs cité au para. 27 de cette décision pour trouver l’appelant coupable hors de tout doute raisonnable. Alors, le fardeau de la preuve n’a pas été renversé. [30] La retenue judiciaire s’impose à la conclusion factuelle de la juge de procès : Luceno , au para. 34 ; Housen c. Nikolaisen , 2002 CSC 33, [2002] 2 R.C.S. 235, aux paras. 10, 25. [31] Ce moyen d’appel est donc rejeté. (3) L’utilisation des déclarations antérieures compatibles de la plaignante [32] L’appelant maintient que la juge de procès a utilisé les déclarations antérieures compatibles de la plaignante pour renforcer sa crédibilité. (a) Le droit concernant l’utilisation des déclarations antérieures compatibles [33] Lorsque la défense soulève des incohérences entre le témoignage au procès et les déclarations antérieures, la juge de procès peut considérer les cohérences afin de déterminer l’impact des incohérences soulevées sur la crédibilité et la fiabilité de la preuve du témoin : voir R. v. L.O. , 2015 ONCA 394, 324 C.C.C. (3 e ) 562, aux paras. 34-36 ; R. v. Perkins , 2015 ONCA 521, au para. 9 ; R. v. Murray , 2017 ONCA 393, 347 C.C.C. (3 e ) 529, au para. 152. [34] Dans l’arrêt L.O. , aux paras. 35-36, le juge Doherty a décrit la façon d’aborder les allégations d’incohérences : An isolated, minor inconsistency in a sea of otherwise consistent descriptions of the relevant events would have far less impact on [the complainant’s] credibility and reliability than would several material inconsistencies going to the heart of her allegations. The jury had to consider the entirety of the evidence relating to [the complainant’s] various statements, including the consistencies in those statements, in deciding the impact of any inconsistencies in those statements on her credibility and reliability. To the extent that [the complainant’s] statements were consistent, especially on the central features of the allegations, that consistency could counter, or at least mitigate, the defence claim that [the complainant] was not credible or reliable because of her many prior inconsistent statements[.] [Citations omises.] (b) L’application du droit aux faits [35] Comme dans l’arrêt L.O. , au para. 39, l’intimée au procès ne s’est pas fiée aux déclarations antérieures compatibles de la plaignante pour la véracité de leur contenu, autre que la déclaration de la plaignante à la police admise en tant que preuve en vertu de l’art. 715.1 du Code criminel . [36] L’avocat de la défense a présenté lors du contre-interrogatoire de la plaignante le témoignage de la plaignante de l’enquête préliminaire afin d’essayer de démontrer que sa preuve était incohérente. [37] La juge de procès pouvait alors évaluer les incohérences soulevées compte tenu de l’ensemble de la preuve, y compris les cohérences sur les points essentiels. Elle a rejeté l’argument de la défense qu’il existait des incohérences importantes au sein de la preuve de la plaignante pour les raisons suivantes : Je ne suis pas d’accord avec la [d]éfense que la question des détails nuise à la crédibilité de [la plaignante]. Je ne peux conclure que cette incohérence est importante pour ma décision. La divulgation de [la plaignante] était cohérente avec ce qu’elle a dit lors de son entrevue avec la police, à l’enquête préliminaire et à ce procès. Le noyau de ses allégations n’a jamais changé. Il est vrai que la mémoire de [la plaignante] était parfois moins éclairée lors de son contre-interrogatoire. Cependant, je conclu[s] que c’était plus une fonction de son âge et de sa routine. Il est très important pour moi que son témoignage, relativement aux questions importantes, soit cohérent. En ligne avec les décisions de la Cour suprême au sujet du témoignage des enfants, il est important de prendre en considération l’âge de la plaignante au moment des incidents allégués. [38] La juge de procès n’a pas utilisé les déclarations antérieures compatibles pour renforcer la crédibilité de la plaignante, mais pour adresser le point soulevé par la défense. Elle a conclu qu’il n’existait pas des incohérences matérielles et que le noyau des allégations restait cohérent. [39] De plus, comme affirme l’appelant, lorsqu’une déclaration est admise en vertu de l’art. 715.1 du Code criminel , cette déclaration devient partie du témoignage de la plaignante. Cependant, la juge de procès peut toujours tenir en compte les cohérences et les incohérences internes de la preuve du témoin, ce qui inclut la déclaration admise en vertu de l’art. 715.1 du Code criminel , pour évaluer la fiabilité de la preuve et l’impact des incohérences soulevées : L.O. , aux paras. 43-44. [40] Les conclusions de la juge de procès concernant la crédibilité des témoins doivent être respectées, « sauf erreur manifeste et dominante » : R. c. Gagnon , 2006 CSC 17, [2006] 1 R.C.S. 621, au para. 20. Ce moyen d’appel est donc rejeté. (4) L’évaluation des incohérences dans le témoignage de la plaignante [41] L’appelant maintient qu’il y a trois aspects du témoignage de la plaignante que la juge de procès n’a pas résolus d’une mesure suffisante : (i) le fait que la plaignante ne pouvait pas se souvenir des dates des incidents lors de son témoignage, alors qu’elle se souvenait des dates dans sa déclaration à la police à peu près deux ans avant le procès ; (ii) l’ajout dans le témoignage de la plaignante d’un endroit additionnel où l’appelant l’avait embrassée à l’immeuble des grands-parents ; et (iii) le témoignage de A.J. que la plaignante partageait parfois des nouvelles de sa cousine D.J. après l’avoir vue à l’école. L’appelant prétend que la juge de procès a accordé trop d’importance au jeune âge de la plaignante comme facteur déterminant pour résoudre les incohérences. (a) Le droit concernant le témoignage des jeunes enfants [42] En traitant le témoignage des jeunes enfants, les juges doivent « éviter de leur imposer les mêmes normes exigeantes qui sont applicables aux adultes » : R. c. B. (G.) , [1990] 2 R.C.S. 30, aux pp. 54-55. Alors, une « faille, comme une contradiction, dans le témoignage d’un enfant ne devrait pas avoir le même effet qu’une faille semblable dans le témoignage d’un adulte » : B. (G.) , à la p. 55. S’il y a des incohérences dans le témoignage, « surtout en ce qui concerne des questions connexes comme le moment ou le lieu », les juges doivent considérer « l’âge du témoin au moment des événements en question » : R. c. W. (R.) , [1992] 2 R.C.S. 122, à la p. 134. Cependant, « cela ne veut pas dire que les tribunaux ne devraient pas apprécier soigneusement la crédibilité des témoins enfants et … que la norme de preuve doive être réduite à l’égard des enfants » : B. (G.) , à la p. 55 . (b) L’application du droit aux faits [43] La plaignante avait 12 ans lors des incidents et 15 ans lors de son témoignage au procès. [44] La juge de procès a reconnu et a énoncé les principes applicables à l’évaluation de la preuve des enfants. Elle a conclu que les failles dans la mémoire de la plaignante au sujet des dates lors de son témoignage étaient explicables par son âge et sa routine. La plaignante témoignait au sujet des événements qui ont eu lieu de manière routinière quelques années avant le procès, lorsqu’elle avait 12 ans. Le fait que sa mémoire était « parfois moins éclairée lors de son contre-interrogatoire » n’était pas une incohérence matérielle. [45] Quant à l’endroit additionnel où l’appelant avait embrassé la plaignante, la juge de procès a conclu raisonnablement qu’il « n’est pas surprenant » qu’un enfant n’ait pas mentionné auparavant un incident d’avoir été embrassée parmi plusieurs autres incidents semblables. Ce n’était pas une incohérence matérielle. Encore une fois, le « noyau de ses allégations n’a jamais changé ». [46] Quant au témoignage d’A.J. que la plaignante partageait des nouvelles de D.J., la juge de procès n’était pas obligée de répondre à chaque argument soulevé par la défense : R. c. Dinardo , 2008 CSC 24, [2008] 1 R.C.S. 788, au para. 30. Elle a mentionné cet aspect de la preuve d’A.J. De plus, bien que la plaignante ait nié qu’elle partageait des nouvelles de D.J. avec ses sœurs, elle avait confirmé qu’elle a eu des conversations avec ses cousines au sujet de leur sœur. L’important c’est que la juge de procès a accepté que D.J. n’a jamais discuté de ses allégations avec la plaignante. [47] Ces conclusions de fait doivent être respectées sauf erreur manifeste et dominante, dont l’appelant n’a pas démontré : Housen , au para. 10. La retenue judiciaire s’impose. Ce moyen d’appel est donc rejeté. (5) L’importance accordée au comportement de la plaignante [48] Selon l’appelant, la juge de procès a accordé trop d’importance au comportement de la plaignante quand elle témoignait. [49] Toutefois, la juge de procès a reconnu qu’elle ne devrait pas accorder trop d’importance au comportement des témoins et que « bien que le comportement soit un facteur pertinent dans une évaluation de la crédibilité, le comportement seul est un prédicteur notoirement non fiable de l’exactitude de la preuve fournie par un témoin ». La juge de procès a aussi cité de la jurisprudence pour confirmer ce principe : voir notamment Law Society of Upper Canada v. Neinstein , 2010 ONCA 193, 99 O.R. (3 e ) 1, au para. 66 ; R. v. O.M. , 2014 ONCA 503, 313 C.C.C. (3 e ) 5, au para. 34. [50] La juge de procès a considéré que la plaignante avait « démontré une réaction émotive forte » lorsqu’elle décrivait les attouchements sexuels : elle crachait, pleurait et tremblait lorsqu’elle parlait des incidents ; et elle a « commencé à crier » après que la défense avait suggéré que la plaignante mentait. [51] Pourtant, comme souligné au para. 25 de cette décision, le comportement de la plaignante n’était qu’un des facteurs que la juge de procès a considérés en évaluant la crédibilité de la plaignante. Ce moyen d’appel est donc rejeté. (6) L’appel de la peine devrait être rejeté [52] L’appelant fait demande d’autorisation d’appel de sa peine. Il indique que la juge de procès n’a pas accordé assez d’importance aux circonstances atténuantes de l’appelant lors de la détermination de la peine et elle a erré en imposant une peine manifestement non indiquée. [53] La juge de procès n’a commis aucune erreur de principe ayant une incidence sur la détermination de la peine et la peine n’est pas manifestement non indiquée : R. c. Lacasse , 2015 CSC 64, [2015] 3 R.C.S. 1089, au para. 11 ; R. c. Friesen , 2020 CSC 9, 391 C.C.C. (3 e ) 309, au para. 26. [54] Dans ses motifs pour la peine, la juge de procès était « d’accord avec l’énumération des facteurs atténuants offerte par la défense », incluant le fait que l’appelant est responsable du « soutien de son épouse et de deux de ses filles » et le fait qu’il était en libération provisoire sous caution selon des conditions strictes pendant plus de deux ans. [55] De plus, la peine d’emprisonnement de deux ans moins un jour n’est pas manifestement non indiquée. L’appelant a été déclaré coupable d’avoir commis des actes sexuels à l’endroit de sa nièce de 12 ans pendant une période prolongée. Il se situait en position de confiance envers la plaignante. Les incidents ont eu un grand impact sur la plaignante. Dans des circonstances semblables, des peines similaires ont été approuvées : R. v. Manjra , 2009 ONCA 485, 250 O.A.C. 257, aux paras. 2-3, 28-32, autorisation de pourvoi refusée, [2009] C.S.C.R. no 393 ; R. v. D.J.B. , 2018 ONCA 566, aux paras. 1-3, 21 et 30. Ce moyen d’appel est donc rejeté. C. CONCLUSION [56] Pour les motifs énoncés plus haut, l’appel de la condamnation de l’appelant est rejeté. La demande d’autorisation d’appel de la peine est accordée, mais l’appel de la peine de l’appelant est rejeté. Rendu le : 30 avril 2021 « K.M.v.R. » « J.A. Thorburn j.c.a. » « Je souscris. K. van Rensburg j.c.a. » « Je souscris, M.L. Benotto j.c.a. »

WARNING An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect.  This section of the Criminal Code provides: 517(1)         If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (a)     if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b)     if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. Failure to comply (2)     Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction. (3)     [Repealed, 2005, c. 32, s. 17] R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Al Zarzour, 2021 ONCA 347 DATE: 20210520 DOCKET: M52451 Fairburn A.C.J.O. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Mohamad Al Zarzour Applicant Megan Stuckey, for the applicant Grace Choi, for the respondent Heard: May 19, 2021 by video conference [1] A non-publication order under ss. 517 and 522(5) of the Criminal Code , R.S.C. 1985, c. C-46, was imposed in this matter at the bail hearing in the court below. That order precludes the publication, broadcast, or transmission of any evidence taken, information given, representations made, and reasons given. [2] The decision in R. v. Al Zarzour , 2021 ONCA 347, contains information covered by that order. [3] Accordingly, the decision will be available on the Court of Appeal for Ontario’s website once the non-publication order ceases to be in effect. [4] In the interim, a copy of the full decision is available at the Registry of the Court of Appeal for Ontario at 130 Queen Street West, Toronto.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Alas, 2021 ONCA 224 DATE: 20210409 DOCKET: C66058 MacPherson, Tulloch, and Lauwers JJ.A. BETWEEN Her Majesty the Queen Respondent and Anthony Raul Alas Appellant John M. Rosen, for the appellant Karen Papadopoulos, for the respondent Heard: December 14, 2020 by video conference On appeal from the conviction entered on May 26, 2016 and the sentence imposed on August 3, 2016 by Justice Gary T. Trotter of the Superior Court of Justice, sitting with a jury. Tulloch J.A.: A. INTRODUCTION [1] In the early morning hours of March 15, 2014, the appellant, Anthony Alas, fatally stabbed Masud Khalif outside a bar in Scarborough. After a three-week trial, a jury convicted the appellant of second degree murder. He was sentenced to life with no parole ineligibility for eleven years. [2] The appellant appeals his conviction alone, raising three grounds. First, he argues that the trial judge erred by failing to leave the defence of provocation with the jury. Second, he contends that the trial judge erred in admitting the appellant’s statement to police. Third, he submits that the trial judge erred by failing to adequately relate the evidence of the case to the questions at issue in his charge to the jury. [3] For the reasons that follow, I would allow the appeal on the first ground. Contrary to the submissions of both counsel at trial, there was an air of reality to the defence of provocation in this case. With respect, the defence should have been left with the jury for their consideration. On this basis, I would order a new trial. [4] In light of my conclusion on the first ground, I need not address the second or third grounds in detail. Suffice to say, I am not persuaded that there is any merit to the appellant’s submissions on either ground. B. FACTUAL OVERVIEW [5] Just before midnight on March 14, 2014, the appellant and his fiancée, Catherine Déscoteaux, went to a bar to socialize and play billiards. Ms. Déscoteaux was drinking alcohol, but the appellant was not. [6] They met Patricia Isaacs and her mother at the bar. Ms. Isaacs was a close friend of the appellant. She was a regular patron at the bar and was familiar with the staff, including the bartender, Samantha Blackmore. By the time the appellant and his fiancée joined Ms. Isaacs at the bar, Ms. Isaacs indicated that she had consumed about three shots of tequila and smoked some marijuana. [7] The deceased arrived at the same bar sometime between 11:00 p.m. and 11:30 p.m., accompanied by his friend, Kelly Bonnell. In his testimony, Mr. Bonnell estimated that the deceased was about a seven on a ten-point scale in terms of intoxication that evening. He had a blood alcohol level over twice the legal limit for driving. [8] The appellant did not know the deceased or Mr. Bonnell. Ms. Isaacs, on the other hand, had encountered the deceased before, on two or three brief occasions at the bar. Ms. Blackwell, the bartender, had also encountered the deceased before. [9] The events that form the subject of this appeal arose from a series of interactions between the deceased and Ms. Isaacs. [10] Ms. Isaacs testified that she first interacted with the deceased when he arrived at the bar that night. As the deceased passed Ms. Isaacs, he tapped her on the head with his hand. Ms. Isaacs testified that the deceased said she should be wearing a Toronto hat, not a Chicago Bulls hat. According to Ms. Isaacs, the deceased then took the hat off Ms. Isaac’s head and held it high, out of her reach, for about five to ten minutes. She eventually got her hat back and walked away. [11] When describing this incident during her examination-in-chief, Ms. Isaacs said that the deceased was a bully, “like mean a bit but like, not, like too aggressive.” Observers described this interaction as “playful;” they were just “joking around.” [12] Afterwards, Ms. Isaacs went outside for a cigarette. The deceased was also outside. According to Ms. Isaacs, as she tried to re-enter the bar, the deceased grabbed the hood of her sweatshirt and pulled her backwards, towards him. At the same time, he used his foot to push the door shut. According to Ms. Isaacs, when she tried to enter the bar for a second time, the deceased closed the door again, this time catching her head between the door and the frame. [13] When Ms. Isaacs finally got back into the bar, she was upset and crying. She complained to her mother and the bartender about the deceased’s actions. She also informed the manager of the bar. [14] Ms. Isaacs also told Ms. Déscoteaux what happened. The appellant overheard. Both Ms. Isaacs and Ms. Déscoteaux testified that the appellant became angry when he heard about the deceased’s behaviour towards Ms. Isaacs. In his police statement, the appellant said that he was “shaking” and “really wanted to do something to him badly.” He further explained to police: Yeah. Because like me, like I have grown up with my dad beating up my mom my whole life…So I'm not the person that's like that and I don't like girls getting mistreated in front of me either, right… So I, I always got to stick up for them. I always got to say something, because like I said, I don't - I don't like girls getting mistreated in front of me, because of my dad like my whole life, right. [15] Ms. Isaacs and Ms. Déscoteaux recalled the appellant saying that he wanted to hit the deceased in the head with a pool cue. The appellant explained to police that he wanted to use a pool cue because he “felt like [he] couldn’t take on a guy like that,” noting: Like the guy was big. That's why I told the mom, like just let me whack him with the pool stick because that was - because honestly I have been sick for ten years. I'm not like at my full strength. I couldn't take on a guy like that [16] At the time, the appellant was about 5”6. He suffered from longstanding health issues relating to his diagnoses of Type 1 diabetes and gastroparesis. The deceased was a large man, standing at approximately 6”2 and weighing 230 pounds. He was described as stocky and muscular. [17] Ms. Isaacs testified that she told the appellant not to do anything, and to leave it alone. The appellant appeared to calm down and went back to playing pool. [18] Shortly after this interaction, Ms. Isaacs again went outside for a cigarette, this time with Ms. Déscoteaux in tow. Ms. Déscoteaux testified that she hoped that the deceased would not come outside because she had a bad feeling about him. The appellant told police that he assured the women that he would come outside if he saw the deceased follow them. In the meantime, the appellant returned to his pool game. [19] While the women were outside, the appellant saw the deceased and Mr. Bonnell preparing to leave. The appellant quickly retrieved his jacket and went outside. On his way out of the bar, the deceased stopped to talk to someone; his friend, Mr. Bonnell, left and headed towards his parked car. [20] The deceased exited the bar shortly after the appellant. The appellant told police that the deceased stopped right beside the appellant and started staring at Ms. Isaacs “all hard core.” [21] A verbal confrontation ensued between the deceased and the women. Ms. Déscoteaux testified that the deceased started yelling at them. According to Ms. Isaacs, Ms. Déscoteaux was angry and told him to “leave us alone and to shut the hell up.” She recalled him refusing to leave and swearing at them, calling Ms. Isaacs and Ms. Déscoteaux “fucking bitches.” Ms. Déscoteaux called the deceased a “rude, ignorant prick.” By all accounts, the appellant stood there silently at this point. [22] Ms. Blackwell, the bartender, tried to join the group outside, but the deceased held the door closed and prevented her from coming out. The appellant and Ms. Isaacs forced the door open so Ms. Blackwell could join them outside. The appellant told police that he then confronted the deceased for the first time, saying: “What the fuck is wrong with you? Do you have a problem?” [23] Ms. Déscoteaux and the deceased continued to argue and swear at one another. Ms. Déscoteaux testified that she confronted the deceased about his behaviour towards Ms. Isaacs. She recalled saying: “Did your mom not teach you manners, you’re not supposed to hit a woman.” According to Ms. Déscoteaux, the deceased responded by saying: “I didn’t hit her, I tripped her.” [24] Ms. Déscoteaux also testified that the deceased kept putting his middle finger about half an inch from her face. She responded by threatening to break his finger and unsuccessfully attempting to grab his hand. She also said that she pushed the deceased back with a closed fist when he was in her face. [25] As the verbal confrontation between the deceased and the women continued, the appellant transferred a knife from his pants pocket to his jacket pocket. It was the appellant’s common practice to carry a knife for his protection. He told police that he did so because he had been sick for ten years. He explained that he made the knife more accessible in this moment because the deceased was much bigger and stronger than him. [26] There are conflicting accounts regarding what precipitated the physical confrontation that happened next. From his vantage point across the parking lot, Mr. Bonnell saw the appellant, Ms. Déscoteaux, and Ms. Isaacs approach the deceased and surround him. The appellant told the police that he saw the deceased form a fist, as if he was about to strike one of the women who stood in front of him. Ms. Déscoteaux said that the deceased lunged at her. Ms. Isaacs said that the deceased was swinging his right arm in a punching motion. [27] The appellant told police that he reacted by jumping in and quickly stabbing the deceased. He said that he did not intend to stab the deceased’s throat; he was aiming for his chest. [28] Ms. Déscoteaux jumped on the deceased’s back and began choking him. She testified that she was concerned about the appellant, given his small stature and health conditions. She agreed with defence counsel that she and the appellant “were working together to defend [themselves]” and that it was one of the scariest moments in her life. [29] Ms. Déscoteaux testified that she pulled her arm back when she saw blood. She initially thought the deceased had broken his nose until she saw him clutching his neck. [30] When the appellant realized what he had done, he fled the scene. Ms. Déscoteaux and Ms. Isaacs followed suit. [31] The deceased died from a stab wound to the neck. He also had wounds on his right thigh, head, left forearm, right hand, and chest. The Crown alleged that the appellant stabbed him six times. [32] Police arrested the appellant less than 48 hours later, on March 16, 2014. Both the appellant and Ms. Déscoteaux gave video statements to the police on the night of the arrest. C. TRIAL PROCEEDINGS [33] On May 16, 2016, defence counsel confirmed that he would seek a jury charge that addressed self-defence, defence of a third person, and “possibly” provocation. However, the next day, on May 17, 2016, defence counsel reversed course. He indicated that provocation was “problematic” and expressed doubt that the “transactional nexus” between what happened in the bar and outside was enough to require a charge on provocation: THE COURT: Well we're going to have to discuss air of reality for provocation at least. DEFENCE COUNSEL: I think that's problematic for me. Obviously just on the outside I look at it as – particularly the evidence inside where he has a raised concern and then there's the allowance of going outside so the question would be whether or not it's on the (indiscernible) provocation. I think that's the problem for our side on that element of it. There might still be a transactional nexus through it that allows it to carry outside the bar given that it's such a short period of time but I think that's the problem. THE COURT: That's what we'll be discussing on... DEFENCE COUNSEL: Exactly. THE COURT: ...whenever we have the pre-charge conference... DEFENCE COUNSEL: Exactly. [34] Later in his discussions with counsel that day, the trial judge asked defence counsel again whether he would be arguing that there is an air of reality to the defence of provocation. Defence counsel wanted more time to research the issue, but indicated that it hinged on “whether or not I think you can separate when he first becomes aware of the possibility of a dispute versus an actual attack against his partner.” [35] At the pre-charge conference, defence counsel took the position that provocation wasn’t available, highlighting the “cooling off” period between when the appellant learned of the first attack on Ms. Isaacs and the time when the stabbing occurred: It’s my position that provocation isn’t available…Is not, is not because there’s no air of reality and just…there appears to be a cooling down period [after the incident in the bar]. On that alone, I think it's insufficient to proceed because he's aware of a potential assault or a violent altercation and has a cooling off period such that it doesn't reach the on the (indiscernible) component which is necessary to establish provocation such that it shocks the mind allowing the mens rea to be vitiated. [36] I would pause here to note that this is an incorrect articulation of the law of provocation. The provocation defence does not vitiate the mens rea for murder: R. v. Humaid, (2006) 208 C.C.C. (3d) 43 (Ont. C.A.), at para. 63, leave to appeal refused [2006] S.C.C.A. No. 232. Instead, the defence partially excuses an offender’s conduct out of a compassion to human frailty: R. v. Tran, 2010 SCC 58, [2010] 3 SCR 350 at paras. 21-22. [37] Defence counsel then went on to concede that there was no air of reality to the defence of provocation. Counsel argued that the appellant was not acting on the sudden in the sense that he armed himself in anticipation that something might happen when he stood outside with the women: Additionally and even more in support of removing provocation would be Mr. Alas' own statement in it he declares I’m standing outside and something to the effect of, I move the knife from my pocket of my pyjamas up to the pocket in my hood in preparation or as a prepared measure in case something were to happen. To me, again, that demonstrates a mind consciously aware of something that may occur such that it's not such a shock. Again, it doesn't really put him on the sudden – under the necessary legal test. [38] Crown counsel agreed with this submission, noting that: “[I]t’s the position of the Crown that provocation is not available for reasons similar to [defence counsel].” The Crown also focussed on the cooling off period inside. It was the Crown’s position that the sequence of events could be separated into “distinct actions” on the part of the appellant and therefore, he did not have an “unprepared mind” when he was outside with the woman and the deceased: CROWN COUNSEL: What takes provocation away on those distinct actions, because I think Mr. McGregor is quite correct, the very actions of Mr. Alas show a cooling off period such that it's not one continuous transaction. If you're looking at the three distinct actions, obviously all different, that may have ultimately led to the stabbing, a sudden provocation and a sudden response, looking at the case law we're talking about firing at an unprepared mind. And when that happens, Mr. Alas does not have an unprepared mind because he already has his hand on that knife... THE COURT: Well, you're talking about suddenness, when he gave his statement it sounds like he's still angry with, with the whole situation... CROWN COUNSEL: He's certainly saying he's still... THE COURT: ...a few days later. CROWN COUNSEL: ...he's still angry at the whole situation but there is that cooling off period in his actions of playing pool. THE COURT: I say that in – not in opposition to what you're saying but I'm agreeing with you. I'm talking about suddenness. CROWN COUNSEL: Thank you, Your Honour. The main point being when Mr. Alas uses a weapon to stab Mr. Khalif, it's not – what happens is not to an unprepared mind as it's dictated by the case law. What it ultimately means is there's no air of reality to the, the defence. [39] Based on the submissions of counsel, the trial judge ruled that he would not leave the defence of provocation with the jury. D. ANALYSIS [40] As noted above, I am of the view that this court need only address the first issue raised in this appeal. The appellant argues that the defence of provocation had an air of reality and therefore it should have been left with the jury. For the reasons that follow, I agree. (1) The Air of Reality Test [41] At the outset, I will briefly summarize the test that applies at this stage of the trial proceedings. All defences that arise on the facts must be left to the jury, regardless of whether they have been raised by an accused: R. v. Cinous , [2002] 2 S.C.R. 3, at para. 51; R. v. Parnell, (1983) 9 C.C.C. (3d) 353 (Ont. C.A.), at para. 33, leave to appeal refused [1984] S.C.C.A. No. 333. Likewise, trial judges have a duty to keep defences that do not meet the air of reality threshold from the jury, even if the defence in question is the only path to the accused’s acquittal: R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 21-27. [42] The air of reality test asks whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit: Cinous, at para. 49. Stated otherwise, the trial judge may engage in a limited weighing of the evidence to determine if a jury acting reasonably could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21. [43] The burden on the accused is evidential, not persuasive: Cinous, at para. 52. The question before the trial judge is not whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day: Cinous , at para. 54. That question is reserved for the jury. The air of reality test is only concerned with whether a given defence is put in play by the totality of the evidence, accepting the case of the accused at its highest and assuming the evidence relied upon is true: Cinous , at para. 53. [44] Whether there is an air of reality to a defence is a question of law, assessed on a standard of correctness: Cinous, at para. 55; Tran , at para. 40. (2) The Defence of Provocation [45] The defence of provocation recognizes that, “as a result of human frailties, the accused reacted inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act or insult”: Tran, at para. 22. At the time of the offence, ss. 232(1) and (2) of the Criminal Code, R.S.C., 1985, c. C-46 governed the defence of provocation and read as follows: [1] Murder reduced to Manslaughter 232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. What is provocation (2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool. [46] The defence will not always be available to excuse a loss of self control; the law has evolved to recognize that “people ought not to yield to certain types of provocation, and that if they did the law should offer no concession to them”: A.J. Ashworth, “The Doctrine of Provocation” (1976), 35 Cambridge L.J. 292, at p. 295 (emphasis in original), as cited in Cairney, at para. 28 [47] The Supreme Court outlined the four components of the provocation defence in Tran, at paras. 25 and 36: (1) there must be a wrongful act or insult; (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control; (3) the accused must have acted in response to the provocation; and (4) the accused must have acted on the sudden before there was time for their passion to cool. The first two components constitute the “two-fold” objective element of the defence: Tran , at para. 25. The latter two components comprise the “two-fold” subjective element of the defence: Tran , at para. 36. (a) The Objective Components [48] The ordinary person standard with respect to the first two elements serves a restraining function, ensuring that only losses of self-control that comport “with contemporary society’s norms and values will attract the law’s compassion”: Tran , at para. 30. [49] The court takes a flexible and contextual approach to the ordinary person in the context of provocation. As the Supreme Court held in R. v. Thibert , [1996] 1 S.C.R. 37, at para. 14: the ordinary person must be taken to be of the same age, and sex, and must share with the accused such other factors as would give the act or insult in question a special significance. In other words, all the relevant background circumstances should be considered. All contextual factors that would give the act or insult special significance to an ordinary person must be taken into account: Thibert , at para. 18. [50] For example, in R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at paras. 95-97, Paciocco J.A. held that the accused’s experiences as a sexual abuse survivor had a bearing on the ordinary person test. The confrontation in that case arose out of the deceased’s alleged sexually abusive conduct towards a young girl.  Paciocco J.A. wrote at para. 96: In this case, the ordinary person used to test whether, objectively, a loss of control could occur, must be conceptualized as someone who themselves had been raised in a sexually abused family and in a sexually abusive environment. Not doing so would be unfair to Mr. Land, for whom sexual abuse takes on particular significance. [Emphasis added]. [51] Paciocco J.A. went on to clarify that this contextual approach “does not mean that the ordinary person is someone who, like Mr. Land, habitually reacts violently to sexual abusers” as the “ordinary person is not someone who is exceptionally excitable or pugnacious”: Land, at para. 97, citing R. v. Hill , [1986] 1 S.C.R. 313, at p. 331. The court must bear in mind the distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which defeats the purpose of this prong of the test: Tran, at para. 35. As Paciocco J.A. explained in Land, at para. 97 : “The question is how an ordinary person with Mr. Land’s life experiences with sexual abuse would be apt to respond.” [52] With respect to the first inquiry under the objective component – whether there was a wrongful act or insult – there was evidence upon which a properly instructed jury acting reasonably could conclude that the deceased was about to strike one of the women outside the bar. Again, the appellant said the deceased formed a fist and brought his arm up like he was going to strike one of the women; Ms. Déscoteaux indicated that the deceased lunged at her; and Ms. Isaacs recalled the deceased raising his arm in a punching motion. [53] As for the second inquiry under the objective component, the court must consider whether the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control. The “suddenness” of the provocative act is germane to this question: Land, at para. 57. As Paciocco J.A. reasoned in Land, at para. 57: “[I]f a wrongful act or insult is not sudden and unexpected, it is unlikely to satisfy the objective requirement that ‘the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control.’” [54] The question is how an ordinary person with the appellant’s life experiences would be apt to respond: Land, at para. 97. The appellant is someone with a relatively small stature, health conditions, and a history of bearing witness to violence against women. The ordinary person in this context would be apprised of the deceased’s previous assault on Ms. Isaacs, and the precipitous conduct of the deceased, a large man who towered over the appellant, Ms. Isaacs, and Ms. Déscoteaux. [55] Understood in that context, there is an air of reality to the prospect that an ordinary person in the appellant’s shoes could lose self-control when faced with a credible threat that the deceased would again assault one of his female companions. Moreover, in this moment of apparent escalation, an ordinary person may resort to a disproportionate response, particularly in light of the size differential between himself and the person acting in a threatening manner. (b) Subjective Components [56] Turning to the subjective components of the test, the court must ask: (1) whether the accused acted in response to the provocation; and (2) whether the accused’s actions were “on the sudden before there was time for [their] passion to cool”: Tran , at para. 36. [57] I am persuaded that there was an air of reality to the notion that the appellant acted in response to the provocation. The stabbing followed immediately on the heels of the deceased making a threatening gesture towards the women. It was at this juncture that the appellant reacted. Before this point, he demonstrated restraint. [58] The more contentious question on this appeal is the second inquiry under the subjective component: whether the appellant acted “on the sudden before there was time for his passion to cool”: Tran, at para. 36. Again, all parties at the proceedings below, including the trial judge, were of the view that no properly instructed jury could reasonably conclude that: (a) the unlawful act was sudden and unexpected; and (b) the appellant’s actions occurred on the sudden before he had time to regain self-control. [59] On appeal, the respondent argues that the evidence does not satisfy the suddenness requirement. The respondent first points to the cooling off period between the initial assault on Ms. Isaacs and the later interaction outside. However, I am not persuaded that the “cooling off period” forecloses the reliance on the defence of provocation in this case. In my view, there were two incidents that constituted potential provocative acts. The first was the assault on Ms. Isaacs; the second was the deceased’s threatening gesture outside. There was no cooling off period between the threatening gesture outside and the stabbing. Indeed, taking the evidence at its highest, the stabbing was an immediate response to the deceased lunging, swinging, or forming a fist in the direction of his female companions. Put another way, he acted “on the sudden” to the physical threat in front of him before there was time for his passion to cool. [60] The respondent also argues that the appellant did not have an unprepared mind because he engaged in a deliberate thought process in preparation for an altercation outside, and the nature of this altercation was entirely predictable. In support of this second argument, the respondent points to the fact that the appellant joined his female companions outside when he knew the deceased was on his way out; he did so while armed with a knife; he did not shy away from the confrontation; during said confrontation, he braced his knife “just in case”; and he admitted that he meant to stab the deceased in the chest, not his throat. The respondent also seems to imply that these acts of planning or preparation show that the appellant played an instigating role in the confrontation, and therefore subjectively expected the deceased’s response. [61] With respect, it remained open for the jury to conclude otherwise on this record. Another plausible read of the facts is that the appellant feared a confrontation with the deceased and went outside to stand with his female companions as a safety precaution. It seems to me that a violent altercation was not a foregone conclusion, and neither was his own participation in what ultimately unfolded. The deceased and his friend were leaving the bar; they could have left without incident but for the verbal confrontation that ensued between the deceased and Ms. Déscoteaux. And again, by all accounts, the appellant did not start the verbal confrontation, nor did he resort to violence until the deceased made a threatening gesture. It is difficult to see how he acted as an instigator, and I am not convinced that the appellant was wholly prepared for the threatening act of the deceased. In any event, the fact that a violent altercation may have been predictable is certainly relevant, but not necessarily determinative: Cairney, at paras. 44-46; Land, at para. 62. [62] Nor do I see the appellant’s anticipation of a conflict and possession of a knife as fatal to this stage of the air of reality test. The defence of provocation is not necessarily defeated in situations where the accused arms himself with a knife in preparation for an encounter he could anticipate. In R. v. Gill , 2009 ONCA 124, 246 O.A.C. 390, a decision cited with approval in R. v. Buzizi , 2013 SCC 27, [2013] 2 S.C.R. 248, this court found that there was an air of reality to the defence of provocation notwithstanding the fact that the accused retreated from a confrontation, retrieved a knife, and then returned to the confrontation. [63] The majority of the Supreme Court in Cairney emphasized that where there are doubts about the evidential foundation for the defence, judges “should resolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence to the jury”: Cairney, at paras. 22, 46. On this aspect of the test, there may be some doubt, but that doubt must be resolved in the favour of the accused. (c) Conclusion on the Defence of Provocation [64] In my view, the defence of provocation had an air of reality. I t was for the jury to decide whether the deceased's wrongful act was sufficient to deprive an ordinary person of the power of self-control and whether the appellant was, in fact, so deprived and acted suddenly, in the heat of passion. [65] I would allow this ground of appeal. E. CONCLUSION AND DISPOSITion [66] I would allow the appeal on the first ground alone and order a new trial. “M. Tulloch J.A.” “I agree. P. Lauwers J.A.” MacPherson J.A. (dissenting): [67] I have had the opportunity to review the draft reasons prepared by my colleague in this appeal. He would allow the appeal and order a new trial on the basis that the trial judge erred by not putting the defence of provocation to the jury. My colleague states his conclusion in this fashion: In my view, the defence of provocation had an air of reality. I t was for the jury to decide whether the deceased's wrongful act was sufficient to deprive an ordinary person of the power of self-control and whether the appellant was, in fact, so deprived and acted suddenly, in the heat of passion. [68] With respect, I do not agree with this conclusion. At trial, defence counsel and Crown counsel took the position in pre-jury charge discussions that the defence of provocation should not be put to the jury. The trial judge agreed - indeed, strongly agreed - with both counsel. He concluded a lengthy discussion with two active counsel on this issue by saying: I could go away and think about this and come back later today but I have given it a lot of thought. With some counsel, I would go away and think about it and make up my own mind but given the competence of defence counsel in this case and Crown counsel as well for that matter … I haven't heard anything that I disagree with and I don't think there is an air of reality to provocation. In fact, I'm sure there is no air of reality to provocation and so I, I will not leave it to the jury . [Emphasis added.] [69] I agree with my colleague that whether there is an air of reality to a potential defence is a question of law assessed on a standard of correctness: R. v. Cinous , 2002 SCC 29, at para. 55; R. v. Tran , 2010 SCC 58, at para. 40. [70] In my view, the trial judge’s ultimate decision on this issue, set out above, was correct. Indeed, all three of the trial participants - defence counsel, Crown counsel and the trial judge, who saw and heard all the witnesses and their evidence - got it right. [71] As my colleague states, there are four components - two objective and two subjective - to the provocation defence: (1) there must be a wrongful act or insult; (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control; (3) the accused must have acted in response to the provocation; and (4) the accused must have acted on the sudden before their was time for their passion to cool: Tran , at paras. 25, 36. [72] My colleague identifies the central issue on the appeal in this fashion: The more contentious question on this appeal is the second inquiry under the subjective component: whether the appellant acted “on the sudden before there was time for his passion to cool”: Tran , at para. 36. Again, all parties at the proceedings below, including the trial judge, were of the view that no properly instructed jury could reasonably conclude that: (a) the unlawful act was sudden and unexpected; and (b) the appellant’s actions occurred on the sudden before he had time to regain self-control. On appeal, the respondent argues that the evidence does not satisfy the suddenness requirement. The respondent first points to the cooling off period between the initial assault on Ms. Isaacs and the later interaction outside. However, I am not persuaded that the “cooling off period” forecloses the reliance on the defence of provocation in this case. In my view, there were two incidents that constituted potential provocative acts. The first was the assault on Ms. Isaacs; the second was the deceased’s threatening gesture outside. There was no cooling off period between the threatening gesture outside and the stabbing. Indeed, taking the evidence at its highest, the stabbing was an immediate response to the deceased lunging, swinging, or forming a fist in the direction of his female companions. Put another way, he acted “on the sudden” to the physical threat in front of him before there was time for his passion to cool. [73] With respect, this rewrites the evidentiary record that was agreed to by all three of defence counsel, Crown counsel and trial judge. [74] First, there was a clear and fairly lengthy period between the deceased's interaction with Ms. Isaacs both inside and outside the bar and the subsequent interaction outside after everyone left the bar. After the first set of incidents, the appellant appeared to be very angry. However, Ms. Isaacs told him to leave it alone and the appellant appeared to calm down and resume playing pool inside the bar. [75] Second, a bit later Ms. Isaacs and a friend went outside the bar again to smoke. Then the deceased and the appellant left the bar at about the same time and joined them. The deceased was rude towards the two women but did not verbally threaten them. [76] Third, the deceased did not have physical contact with the women, although he may have raised a finger or a fist close to one of the women’s face while he was haranguing them. [77] Fourth, as the verbal confrontation between the deceased and the women continued, the appellant, who was watching but said nothing, transferred a knife from his pants pocket to his jacket pocket. He did so even though the confrontation between the deceased and the women was verbal and the deceased was not displaying a weapon (he did not have one). [78] Fifth, the appellant admitted to police that at this juncture, he saw the deceased form a fist. He jumped in and tried to stab the deceased in the chest (obviously, a very vulnerable location). He missed and stabbed the deceased in the throat. [79] Sixth, the appellant continued to stab the deceased. The deceased suffered six, not one, stab wounds - to the throat, right thigh, left forearm, right hand, and two to the head. The attack, against an unarmed man engaged in a verbal confrontation with two other people (not the appellant), was sustained and deadly. [80] Against this backdrop, I turn to how the three relevant trial participants approached and resolved the legal issue of provocation. This issue was discussed on two days, briefly on the first day and extensively at the formal pre-charge conference several days later. [81] At the pre-charge conference, defence counsel explicitly and in some detail opposed a provocation instruction in the jury charge. He said, in part: I think that there are two key components that were eliminated as a possible defence for Mr. Alas. First of all, it appears on the facts that he's notified inside the bar prior to going outside by Ms. Isaacs that there may be an altercation and he says from her evidence, that he wants to go hit him with a pool cue. He gets convinced not to and there appears to be a cooling down period. On that alone, I think it's insufficient to proceed because he's aware of a potential assault or a violent altercation and has a cooling off period such that it doesn't reach the … component which is necessary to establish provocation such that it shocks the mind allowing the mens rea to be vitiated. Additionally and even more in support of removing provocation would be Mr. Alas’ own statement in it he declares I'm standing outside and something to the effect of, I move the knife from my pocket of my pajamas up to the pocket of my hood in preparation or as a prepared measure in case something were to happen. To me, again, that demonstrates a mind consciously aware of something that may occur such that it's not a shock. Again, it doesn't really put him on the sudden - under the necessary legal test. So … I don't think it would be appropriate to go ahead with it. Unless Your Honour sees something differently from the facts as they came out, I just don't see it. [82] Similarly, Crown counsel, explicitly and in considerable detail, opposed a provocation instruction in the jury charge. After a lengthy review of the evidence, Crown counsel concluded: What takes provocation away … the very actions of Mr. Alas show a cooling off period such that it's not one continuous transaction. If you're looking at the three distinct actions, obviously all different, that may have led to the stabbing, a sudden provocation and a sudden response, looking at the case law we’re talking about firing at an unprepared mind. And when that happens, Mr. Alas does not have an unprepared mind because he already has his hand on that knife. [H]e’s still angry at the whole situation but there is that cooling off period in the actions of playing pool. The main point being that when Mr. Alas uses a weapon to stab Mr. Khalif … what happens is not to an unprepared mind as it’s dictated by the case law. What it ultimately means is there’s no air of reality to … the defence. [83] After hearing counsels’ submission, the trial judge made his ruling. His language was unequivocal: I haven't heard anything I disagree with and I don't think there is an air of reality to provocation. In fact, I'm sure there is no air of reality to provocation and so I, I will not leave it to the jury. [84] A trial judge must instruct the jury on all defences which arise on the evidence, even if they are not raised by the defence. A failure to object to a jury charge is not fatal to an appeal: R. v. L.K. , 2020 ONCA 262, at para. 15. However, the position taken by counsel at trial will “assist an appellate court in determining whether the defence does properly arise on the evidence”: R. v. Jackson (1991), 68 C.C.C. (3d) 385 (Ont. C.A.), at p. 409. In addition, an accused has a limited right to control his defence and, sometimes, counsel may not want to leave a defence with the jury, a decision which is “often laced with tactical and practical considerations”: R. v. Luciano , 2011 ONCA 89, at para. 76. [85] In this case, the appellant’s defence at trial, as reflected in a lengthy and forceful closing address by his trial counsel, was, explicitly, “self defence of another person”, namely the two women the deceased interacted with outside the bar. He did not say a word about the deceased provoking the appellant. To insist, as does my colleague, that the trial judge was required to put both of the very different defences of self defence of another person and provocation to the jury second guesses defence counsel’s explicit choice about how to defend his client and injects a dangerous element of confusion and even conflict into the appellant’s defence. [86] As I said earlier, whether there is an air of reality to a potential defence, including provocation, is a question of law addressed on a standard of correctness: Cinous , at para. 55, and Tran , at para 40. For the above reasons, I conclude that the trial judge’s decision not to put the defence of provocation to the jury was correct. [87] I agree with my colleague that there is no merit in the appellant’s other two grounds of appeal. [88] For these reasons, I would dismiss the appeal. Released: April 9, 2021 “J.C.M.” “J.C. MacPherson J.A.” [1] The offence took place on March 15, 2014. Amendments to s. 232(2) of the Criminal Code under the Zero Tolerance for Barbaric Cultural Practices Act , S.C. 2015, c. 29, (“Bill S-7”). Bill S-7 came into effect on July 17, 2015 restricting the application of the defence of provocation to instances where the wrongful act or insult constituted an indictable offence punishable by five or more years of imprisonment.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Al-Enzi, 2021 ONCA 81 DATE: 20210205 DOCKET: C63998 Tulloch, Roberts and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Nawaf Al-Enzi Appellant Michael W. Lacy and Bryan Badali, for the appellant Jamie Klukach and Katie Doherty, for the respondent Heard: June 18, 2020 by video conference On appeal from the conviction entered on December 18, 2016 by Regional Senior Justice Bonnie R. Warkentin of the Superior Court of Justice, sitting with a jury. Tulloch J.A.: OVERVIEW [1] On August 19, 2006, the body of Mohamed Zalal (“Mr. Zalal” or “the deceased”) was found in a field by Highway 417, outside of Ottawa. He had been killed by a single gunshot wound to the back of his head. [2] In June 2008, after a lengthy police investigation, the appellant, Nawaf Al-Enzi, and two others, Mahmoud Kayem, and Ali Abdul-Hussein, were charged with first degree murder in relation to Mr. Zalal’s death. [3] On September 26, 2010, the appellant was convicted of first degree murder by a jury. On appeal, this court set aside the conviction, finding that the appellant had not been afforded a fair trial. A new trial was ordered: R. v. Al-Enzi , 2014 ONCA 569, 121 O.R. (3d) 583, leave to appeal refused, [2014] S.C.C.A. No. 405. [4] On December 18, 2016, after a second trial, the appellant was convicted of first degree murder in the death of Mr. Zalal. He now appeals his conviction. [5] For the following reasons, I would dismiss the appeal. BACKGROUND [6] The following summary of evidence provides context for understanding the issues on appeal. Additional facts will be added, where required, to address each ground of appeal. I. Discovery of the body and forensic evidence [7] On August 19, 2006, the body of Mr. Zalal was discovered around noon, in a field outside of Ottawa. [8] It was determined that Mr. Zalal had died of a single, perforating gunshot wound to the back of his head. The firearms evidence suggested that the gun had been fired at close range. No other injuries were present. [9] The police found two cigarette butts near the body. DNA testing later revealed that the deceased’s DNA profile matched the DNA found on one of the cigarettes, and Mr. Kayem’s profile matched the DNA found on the other. II. Police investigation [10] During the two years following the discovery of the body, the police conducted an extensive investigation into the circumstances of Mr. Zalal’s death. The investigation revealed the following: · the appellant, Mr. Kayem, and Mr. Abdul-Hussein were known associates of Mr. Zalal; · phone records revealed that, on August 18, 2006, there were numerous calls between the cell phones being used by the appellant, Mr. Kayem, and Mr. Zalal; · cell tower records revealed that at approximately 11:10 p.m. on August 18, 2006, Mr. Kayem’s cell phone accessed the cell tower nearest to where the deceased’s body was found. The appellant’s cell phone accessed that same tower at approximately 12:01 a.m. on August 19, 2006; · while he denied any involvement, Mr. Kayem’s DNA was found on a cigarette butt discovered near the body; · the appellant claimed that he had been with Mr. Zalal on the day prior to his body being found, but that he had spent that evening with his then-wife, Zeinab Abdul-Hussein, at an exhibition and at a bar in Québec. However, security footage from the only entrance and exit at the bar did not show the appellant or his wife in attendance. Cell tower records also showed that the appellant’s cellphone did not access any of the cell towers near the bar; · intercepted communications revealed a number of potentially incriminating conversations, including: i. a November 2007 conversation between the appellant and Mr. Abdul-Hussein, in which the appellant reassured Mr. Abdul-Hussein after an interaction with police, telling him that “[t]hey gotta prove it”; ii. a November 2007 conversation between the appellant and his brother, in which the appellant repeatedly asked his brother to confirm that he took apart and threw away “the nine”; iii. a conversation between the appellant and a friend, in which the appellant appears to acknowledge a dispute between himself and Mr. Zalal over a firearm that he had borrowed from Mr. Zalal; iv. multiple conversations between the appellant and Mr. Kayem, in which they repeatedly mention that no one has said anything and that the police “don’t have anything”; and v. multiple conversations between the appellant and Ms. Abdul-Hussein, in which they repeatedly made mention of a person they referred to as “Auntie”. Based on the content and context of the calls, it was possible that “Auntie” referred to Mr. Kayem, and that the conversations were about how to keep Mr. Kayem, who had travelled to Dubai after the murder, from returning to Canada. · a witness, Ramin Khaleyi, told police that the appellant had confessed to murdering Mr. Zalal, and that Mr. Kayem and Mr. Abdul-Hussein had also been involved. [11] In June 2008, on the basis of this evidence, the police arrested the appellant, Mr. Kayem, and Mr. Abdul-Hussein in connection with the death of Mr. Zalal. All three were charged with first degree murder. The appellant and Mr. Abdul-Hussein were charged jointly, and Mr. Kayem was charged separately. III. Events leading up to the appellant’s first trial [12] After his arrest, Mr. Kayem was interviewed by police and confronted with the DNA evidence linking him to the scene. Though he had previously maintained that he had not been involved in Mr. Zalal’s death, he provided a statement in which he admitted that he had been present at the murder. He claimed that the appellant was responsible for Mr. Zalal’s killing. Mr. Kayem was subsequently committed to trial after a preliminary hearing. [13] In October 2009, after a joint-preliminary hearing for the appellant and Mr. Abdul-Hussein, Mr. Abdul-Hussein pleaded guilty to being an accessory after the fact and received a sentence of time served. He subsequently provided a statement to police in which he identified the appellant as the killer. After obtaining the statement, the Crown decided to proceed jointly against the appellant and Mr. Kayem. IV. First trial and appeal [14] Midway through the appellant’s first trial, the appellant’s lawyer withdrew from the case pursuant to the Law Society of Ontario’s Rules of Professional Conduct. He claimed that he was required to withdraw as a matter of ethics, but that the appellant was blameless and not to be faulted for the withdrawal. [15] As the appellant was now unrepresented, the trial judge adjourned proceedings for nearly four months to allow the appellant to find another lawyer. Despite engaging in a thorough search, however, the appellant was unable to find a defence lawyer prepared to step into the middle of a first degree murder trial. [16] As a result of his inability to find representation, the appellant brought an application for severance on the grounds that he was not capable of representing himself and would suffer prejudice. The trial judge dismissed the application, instead appointing amicus in an expanded role to assist the appellant. [17] At the conclusion of the trial, a jury convicted the appellant of first degree murder. The appellant’s co-accused, Mr. Kayem, was acquitted. [18] The appellant’s conviction was subsequently overturned by this court. At para. 96 of his reasons, Laskin J.A. found that the trial judge had: exercised his discretion unreasonably by denying Al-Enzi a severance or a mistrial so that he could retain a lawyer to represent him at a new trial. The appointment of amicus , even with an expanded mandate, was not an adequate substitute for counsel for Al-Enzi. The trial judge’s denial of a severance or a mistrial deprived Al-Enzi of a fair trial, both in appearance and in reality. It produced a miscarriage of justice. [19] The appeal was thus allowed, the conviction set aside, and a new trial ordered. V. Second trial [20] At his second trial, the appellant was tried by a jury and convicted of first degree murder. ISSUES ON APPEAL [21] The appellant challenges his conviction on six grounds: 1) the trial judge erred in her instruction to the jury on the issue of post-offence conduct; 2) the trial judge erred in concluding that the appellant’s statements to police were voluntary and admissible; 3) the trial judge erred in admitting Mr. Khaleyi’s May 4, 2007 statement to police into evidence for the truth of its contents; 4) the trial judge erred in leaving constructive first degree murder by way of forcible confinement with the jury, or in her instruction to the jury on this route of liability; 5) the trial judge erred in finding that the communications between the appellant and his wife made while they were still married were not protected by spousal privilege; and 6) the trial judge erred in dismissing the appellant’s challenge to the lawfulness of the intercepts. [22] In the event that the appeal is allowed, the Crown raises an additional issue – whether the trial judge erred by excluding the prior testimony and sworn police statement of Mr. Abdul-Hussein. However, given that I would dismiss the appeal, there is no need to address this issue. ANALYSIS I. Did the trial judge err in her instruction to the jury on the issue of post-offence conduct? (1) Background [23] On August 22, 2006, three days after the discovery of Mr. Zalal’s body, Detective Krista Hill was assigned to interview the appellant as part of the investigation into Mr. Zalal’s death. [24] That same day, the appellant contacted Detective Hill in order to retrieve his passport, which had been seized following his arrest in 2005 for an unrelated matter. The appellant left two voice mail messages. Detective Hill returned the appellant’s calls, using the passport matter as an opportunity to invite the appellant to discuss the death of Mr. Zalal. While at the time, the appellant was not a suspect, he was a known associate of Mr. Zalal.  Detective Hill took contemporaneous notes of the call. She testified that, while her notes were not a verbatim summary of the discussion, they covered everything that had been discussed. [25] Detective Hill also testified that, although the appellant stated that he had no information to provide about Mr. Zalal’s death, he provided the following information regarding his contact with Mr. Zalal on August 18, 2006: · at about 2:00 p.m., he had picked up Mr. Zalal and two others to buy t-shirts; · he dropped off Mr. Zalal and the others at one of their homes; · at around 6:00 p.m., he spoke to one of the other men, at which time Mr. Zalal was still with him; and · he was planning to meet Mr. Zalal and the others at a strip club in Gatineau, but did not end up meeting him there. Instead, he went with his wife to an exhibition and later to a bar in Québec. [26] Contrary to the appellant’s narrative, however, security footage from the only entrance and exit at the bar did not show the appellant or his wife in attendance. Cell tower records also showed that the appellant’s cellphone did not use any of the cell towers near the bar. [27] Prior to trial, the Crown brought an application to have the appellant’s statement to Detective Hill admitted as voluntary: R. v. Al-Enzi , 2016 ONSC 3574 (“Voluntariness Reasons”). The Crown sought to use the statement as evidence that the appellant had deliberately lied to conceal his guilt. The appellant challenged the application, arguing, among other things, that the statement should not be admitted on the basis that it had limited probative value. [28] According to the appellant, the statement served no purpose other than to memorialize the alleged falsehood that he had been at a bar in Québec on the night of August 18. Even if the statement was proven false, its falsity could not be used to further the Crown’s case, as a falsehood cannot be used to support an inference that an accused deliberately lied to conceal their guilt, absent independent evidence of fabrication. In support of this proposition, the appellant referred to this court’s decision in R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.). [29] The appellant argued that, while such independent evidence would potentially be available in the form of the anticipated evidence of Mr. Kayem and Mr. Abdul-Hussein (who both claimed that the appellant had murdered Mr. Zalal), acceptance of that evidence would effectively render the appellant’s concoction inconsequential (as the jury would already have accepted that he murdered Mr. Zalal). The evidence thus served no purpose. [30] The trial judge rejected this argument, finding that the statement was admissible, as the jury was entitled to consider the cumulative effect of all the evidence. [31] It was subsequently determined, however, that the hearsay evidence of both Mr. Kayem and Mr. Abdul-Hussein – which was to serve as the independent evidence of fabrication – was inadmissible: R. v. Al - Enzi , 2016 ONSC 6911; R. v. Al-Enzi , 2016 ONSC 6972. [32] As a result, there was an issue at the end of the trial as to whether there was, in fact, any independent evidence of fabrication and, consequently, how the jury should be instructed on the proper use of the appellant’s alleged lie to police. [33] In pre-charge discussions it was agreed that, if the trial judge found that there was independent evidence of fabrication, an instruction to the jury would be necessary to explain that an inference of consciousness of guilt could only be drawn if the independent evidence of fabrication was accepted. [34] Then, during mid-charge discussions, the following exchange occurred, in which the trial judge noted her intention to find that there was no independent evidence of fabrication: Trial judge: Well I intended to make it a prohibited use of the evidence and so maybe I’ve just not used the wording the way it should have been used. I have to say, it was rather tricky as the fellow said it is going to be. Defence counsel: My – might I – I respectfully perhaps ask Your Honour is – is – is it Your Honour’s meaning that there was no evidence of fabrication? Trial judge: That’s right. [Emphasis added.] [35] In light of this finding, further discussion ensued regarding the specific wording of the charge to the jury. The trial judge proposed the following language: So are you happy with in all of the circumstances of – in all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence or do you want me to change it even more than that? [Emphasis added.] [36] Defence counsel indicated that he could “live with” the instruction. Crown counsel, however, opposed the use of the word “narrative”, arguing instead that it should be characterized as “part of the evidence”. The trial judge noted that she would consider the Crown’s submission. [37] The relevant portion of the trial judge’s final instruction was as follows: It is for you to decide whether Nawaf Al-Enzi’s statement to the police about being at Cosmos Bar was true or false based on all the evidence presented by the Crown. When considering what inference, if any, to draw from the evidence of Mr. Al-Enzi’s claim that he was at Cosmos Bar on the night of August 18 or early morning of August 19, 2006, keep in mind that people sometimes lie for entirely innocent reasons . This is just one piece of evidence to be considered with all the other evidence when you decide whether the Crown has proven Mr. Al-Enzi’s guilt beyond a reasonable doubt. [Emphasis added.] (2) Governing Principles [38] In Canadian law, there is a well-established distinction between an exculpatory statement by an accused that is disbelieved, and one that is determined to have been fabricated or concocted to avoid culpability: R. v. Wright , 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38. The importance of this distinction lies in the fact that, while a statement that “is merely disbelieved is not evidence that strengthens the Crown’s case”, a statement that has been deliberately concocted can be capable of supporting an inference of guilt: O’Connor; at para. 38. In other words, where the Crown can prove that an accused’s exculpatory statement was not simply untrue, but an intentional fabrication, the trier of fact is entitled to draw an inference that the accused lied to conceal their guilt. [39] However, in order to prove an intentional fabrication, the Crown must adduce evidence of that fabrication, independent of the evidence that contradicts or discredits the exculpatory statement: Wright , at paras. 40-41; O’Connor , at paras. 21-22; R. v. Laliberté , 2016 SCC 17, [2016] 1 S.C.R. 270, at paras. 3-4. Put differently, the Crown must not only adduce evidence that disproves the exculpatory statement, but also adduce independent evidence that proves that the exculpatory statement was made for the purpose of deflecting guilt from the accused. This point was also recently made by this court in the case of R. v. Ching , 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47, where the court stated: “ Independent evidence of concoction can, however, be found in the very content of the impugned statements, depending on the context in which they were made. Independent, in this sense, means that the evidence of concoction is separate from the evidence of guilt, not necessarily separate from the statements themselves. For example, where an accused has made contradictory exculpatory statements, the self-contradiction of an accused may constitute independent evidence of fabrication: see R. v. Shafia , 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17.” This requirement ensures that the Crown is made to prove an accused’s guilt beyond a reasonable doubt, and that mere disbelief of an accused does not automatically lead to a guilty verdict: O’Connor , at para. 20, citing R. v. Coutts (1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at pp. 551-552, leave to appeal refused, [1998] S.C.C.A. No. 450. [40] Where the exculpatory statement is made out of court, independent evidence of fabrication may emerge from the evidence of the circumstances in which the statement was made. Such evidence will necessarily be case and fact specific. Some examples of such evidence are “pre-arrest exculpatory statements that are specific and detailed” or “post-arrest statements that are inherently implausible”: Wright , at para. 48. [41] Where such independent evidence of fabrication exists, these principles should be made clear to the trier of fact. In particular, the following should be communicated: 1) the trier of fact may, but does not have to, disbelieve the accused’s exculpatory statement; 2) if they disbelieve the statement, is there other, independent evidence upon which they may, but do not have to, find that the accused fabricated the exculpatory statement; 3) if, on the basis of the independent evidence, they do not find that the accused fabricated the statement, they must ignore the statement and treat it as if it had never been given; 4) by contrast, if they do find that the accused fabricated the statement, they may consider the reason why the accused fabricated the statement, including whether it was to conceal their involvement in the offence(s) charged. This determination must be made in light of all the evidence. See R. v. Oland , 2016 NBCA 58, at para. 69, leave to appeal refused, [2016] S.C.C.A. No. 188; D. Watt, Watt’s Manual of Criminal Jury Instructions , 2nd ed. (Toronto: Thomson/Carswell, 2015). [42] Where an instruction regarding fabrication is provided, a trial judge should “carefully outline what evidence is capable of constituting independent evidence of fabrication”: O’Connor , at para. 38; R. v. Clause , 2016 ONCA 859, 133 O.R. (3d) 321, at para. 62. [43] However, as noted in R. v. Polimac , 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263, the failure of a trial judge to provide such an instruction will not always constitute a reversible error. Rather, the question for an appellate court is not “whether an O’Connor instruction would have been appropriate, but whether the instruction given prejudiced the appellant’s right to a fair trial”: at para. 106. The need for a reviewing court to determine whether the instruction that the trial judge did provide caused the accused prejudice has been repeatedly emphasized by this court: see R. v. Selvanayagam , 2011 ONCA 602, 281 C.C.C. (3d) 3, at paras. 30-33; R. v. Stevenson , 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 103, leave to appeal refused, [2015] S.C.C.A. No. 37; R. v. Zekarias, 2018 ONCA 585, at para. 21. [44] In determining whether an accused was prejudiced by a trial judge’s instruction to the jury, an appellate court must undertake a functional assessment of the charge. This point was explained by this court in R. v. Badgerow , 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 17-18: Appellate review of the adequacy of a jury instruction requires a functional assessment. The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence. The context of the case includes the evidence, the positions of the parties, the closing arguments, the submissions of counsel in advance of the charge, and any objections taken to the charge. [Emphasis added; citations omitted] [45] This court has also recognized that the failure of a trial judge to outline for the jury the circumstances supporting a finding of fabrication may inure to the benefit of the accused. This point was made in Polimac , at para. 106: [A]n instruction that highlighted the circumstances that would support a finding of fabrication were the jury to find inaccuracies in the appellant’s statements may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case . [Emphasis added.] [46] The risk of prejudice arising from a trier of fact’s confusion of mere disbelief with affirmative evidence of guilt underscores the law in this area. However, this risk is lessened where the statement to be adduced is an out-of-court statement of the accused, as compared to the accused’s in-court testimony. O’Connor A.C.J.O., writing for this court in O’Connor , described this distinction at para. 25: When an out-of-court statement of an accused is introduced into evidence it does not have the same immediate connection to the trial itself as an accused's testimony and for that reason, even if shown to be false, it does not present the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown. (3) Arguments on Appeal [47] The appellant makes two arguments on appeal on this issue. [48] First, as the trial judge had indicated that she had found that there was no independent evidence of fabrication, she ought to have instructed the jury that the alibi, if disbelieved, had no probative value and was simply part of the narrative. The instruction that the statement was “just one piece of evidence to be considered with all the other evidence” invited the jury to draw the improper inference that the appellant’s lie was indicative of a consciousness of guilt. The instruction thus invited the very mischief that was to be avoided. [49] Second, if there was, in fact, independent evidence of fabrication, the instruction failed to provide the jury with the necessary tools to assess that evidence and determine whether they could find that the appellant had deliberately lied to conceal a consciousness of guilt. [50] In response, the Crown argues that the circumstances in which the appellant made the statement to Detective Hill provided independent evidence of fabrication. In light of this evidence, it would have been appropriate for the trial judge to provide an instruction regarding the proper use of this evidence. However, in this case, the absence of an instruction did not cause prejudice. (4) The Principles Applied (a) The Circumstances of the Appellant’s Statement Provide Independent Evidence of Fabrication [51] To begin, I first consider whether there was independent evidence of fabrication capable of supporting an inference of the accused’s consciousness of his guilt. In my view, there was. Accordingly, I conclude that the trial judge erred in determining otherwise. [52] In reaching this conclusion, I consider the circumstances of the appellant’s exculpatory out-of-court statement. I note that this court’s description of the circumstances providing independent evidence of fabrication in O’Connor , at para. 31, are apposite: His first statement was made the same day as the shooting and, importantly, was made to the police at a time when the police did not suspect the appellant and the appellant did not have reason to believe that he was a suspect. The police, as a matter of routine, questioned witnesses who might have information about the deceased's whereabouts prior to the shooting. The appellant's initial statement furnished a complete alibi and if true, would lead the police to conclude that he was not involved in the offence . That statement and the next two statements were very precise, both as to the appellant's whereabouts and the times he was in the various places. If the jury were to disbelieve the appellant's statements, they might fairly ask why would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth? And how was it that the appellant was so well prepared with a detailed and precise statement about his whereabouts when questioned by the police? [Emphasis added.] [53] I conclude that the circumstances of the appellant’s statement to the police constitute independent evidence of fabrication. As in O’Connor , the appellant provided his statement to Detective Hill shortly after the shooting, at a time when he was not a suspect. The appellant’s statement was detailed and precise with respect to the appellant’s whereabouts and timing. The appellant volunteered this information without any prompting, and if believed, the information would deflect suspicion away from him. These circumstances, taken together, could reasonably constitute independent evidence of fabrication. [54] Given the overt similarities between the circumstances arguably giving rise to independent evidence of fabrication in this case and O’Connor , I conclude that the trial judge erred in law in her understanding of what circumstances can give rise to such evidence. Applying the appropriate understanding of the law to this case, it is clear that there was evidence that arguably constituted independent evidence of fabrication. This, however, does not end the analysis. (b) The Trial Judge’s Instruction Did Not Prejudice the Appellant [55] The trial judge concluded that there was no independent evidence of fabrication and should have instructed the jury that if they disbelieved the accused’s evidence, they should disregard it. This did not occur. However, any resulting prejudice is lessened by the circumstances I have discussed demonstrating independent evidence of fabrication. [56] As independent evidence of fabrication existed, the trial judge should have provided an instruction for the jury outlining the evidence that supported such a finding. The trial judge did not do so. [57] As I have indicated, however, the question on appeal is not whether the trial judge should have given such an instruction, but whether the trial judge’s failure to do so prejudiced the appellant’s right to a fair trial: Polimac , at para. 106. [58] I conclude that the trial judge’s instruction did not prejudice the appellant. To the contrary, and similar to Polimac , the trial judge’s failure to outline the independent evidence of fabrication may have inured to the appellant’s benefit. [59] I first consider whether the trial judge’s approach to the jury instruction on this issue prejudiced the appellant. I note that, unlike in Polimac (see para. 94 of that case), defence counsel in this case asked for an O’Connor warning if the trial judge found independent evidence of fabrication. As the trial judge concluded that no such independent evidence existed, defence counsel was essentially deprived of any potential benefit of their requested instruction. [60] Similarly, I note that defence counsel agreed to a specific version of the draft charge when the trial judge’s proposed charge was circulated to counsel. This draft included the statement that the evidence was “part of the narrative for you to consider along with the rest of the evidence”. The version that was given, however, did not include this language, instead stating that it was “one piece of evidence to be considered with all the other evidence”. [61] In my view, any prejudice arising from the trial judge’s approach was mitigated by various factors. [62] First, despite the appellant’s argument on appeal that the trial judge ought to have instructed the jury that the alibi, if disbelieved, had no probative value, defence counsel at trial resiled from this position. Instead, trial defence counsel agreed to the proposed charge stating: “In all the circumstances this evidence is part of the narrative for you to consider along with the rest of the evidence.” [63] Furthermore, and more importantly, the trial judge’s failure to outline the circumstances supporting independent evidence of fabrication may have inured to the appellant’s benefit. This instruction would have focused the trier of fact’s attention on the circumstances supporting a strong inference of fabrication. An instruction highlighting the circumstances supporting a finding of fabrication “may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case”: Polimac, at para. 106. [64] Finally, I note that the trial judge’s instructions to the jury otherwise equipped the jury with the tools necessary to assess the importance, or lack thereof, of the appellant’s disbelieved evidence. In this respect, the trial judge instructed the jury to “keep in mind that people sometimes lie for entirely innocent reasons” when assessing the appellant’s evidence that he was at the Cosmos Bar at the relevant time. The trial judge then referenced the testimony of multiple trial witnesses who were “involved in the criminal subculture”, reminding the jury that “[t]hey all testified that they typically lie to the police when questioned about any matter.” [65] In my view, these instructions made clear to the jury that the simple presence of a lie did not necessarily give rise to a consciousness of guilt by the appellant. “While the safer course would have been to include” a more precise instruction, I “cannot say that the manner in which this issue was left with the jury undermined the appellant’s right to a fair trial”: Zekarias , at para. 21. [66] In all the circumstances, I conclude that the trial judge’s failure to provide the O’Connor instruction did not prejudice the appellant. Accordingly, I would dismiss this ground of appeal. II. Did the trial judge err in concluding that the appellant’s statements to police were voluntary and admissible? (1) Background [67] As outlined above, on August 22, 2006, the appellant had a telephone conversation with Detective Hill in which he provided details about his contact with Mr. Zalal on August 18. The appellant attended the police station the next day to retrieve his passport. He reiterated that he had no information about the events of Mr. Zalal’s death. [68] A few months later, Sergeant Michael Hudson contacted the appellant for an interview. The appellant agreed, and on November 8, 2006, he attended the Ottawa police station to give a statement. The interview, conducted by Detective John Monette, was video-taped and recorded. The appellant acknowledged that he was there voluntarily. He was informed that he was not a suspect and that he was free to leave at any time. The appellant maintained a story consistent with the statement he had given to Detective Hill on August 22. He eventually indicated that he had nothing more to say. [69] Before leaving the station, however, the appellant agreed to speak to Sergeant Hudson about something that the appellant had told him on the phone the night before – the appellant had stated, “Mike, they are going to kill me”. The appellant proceeded to speak with Sergeant Hudson in a second interview room without cameras. Sergeant Hudson brought a small audio recorder into the room and surreptitiously recorded the conversation. Sergeant Hudson expressed concern for the appellant’s safety and mentioned the possibility of the appellant serving as a witness or confidential informant. The appellant stated that he would consider the proposal. He then left. [70] As mentioned above, prior to trial, the Crown brought an application to admit the appellant’s statements to police as voluntary. The appellant opposed the application. He argued that the record of the August 22 statement was incomplete and that he had been induced to make the statement in exchange for his passport. He also argued that the statement’s probative value (the potential falsehood that he attended the bar on August 18) was outweighed by its prejudicial effect (that his refusal to cooperate would indicate guilt). The November 8 statements were similarly involuntary, as, among other things, they were tainted by the inadmissible statement on August 22 and the appellant had been misled about his status in the investigation. [71] The trial judge allowed the Crown’s application, admitting the statements as voluntary. There was no evidence that Detective Hill threatened to withhold the appellant’s passport unless he gave a statement. In fact, the evidence showed the opposite, as Detective Hill returned the passport in spite of the appellant’s refusal to provide a statement. Although there was no recording of the phone call, Detective Hill’s notes were detailed enough to provide adequate clarity as to the nature of the conversation that took place. The ultimate reliability of Detective Hill’s evidence could be assessed by the jury. Any potential prejudice could be addressed by way of instruction, and the jury was entitled to consider whether the appellant gave a deliberately false statement. With regard to the November 8 statements, there was no tainting and, while there was some evidence at the time to implicate the appellant in the murder, Detective Monette and Sergeant Hudson’s actions demonstrated that he was not a suspect. (2) Arguments on Appeal [72] The appellant effectively makes four arguments on appeal. First, as the record provided by Detective Hill is not a verbatim record of the phone conversation, the court cannot be satisfied that Detective Hill did not hold out the return of the passport as an inducement for the statement. [73] Second, even if the August 22 statement was voluntary, it should not have been admitted, as its prejudicial effect outweighs its probative value. A trier of fact can only find that an accused deliberately lied where there is independent evidence of fabrication above and beyond a simple finding that the accused’s alibi is false. In this case, no such independent evidence was available. The prejudicial effect, however, was significant. Admission of the statement created a real risk that jurors would presume that only a guilty person would lie to police. [74] Third, the November 8 statements were tainted, as they were the result of a continuation of the involuntary statement made on August 22. [75] And fourth, the appellant’s rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were breached when he was not provided his rights to counsel prior to the November 8 interviews. Since the appellant was objectively a suspect at that point in time (given that investigative documents identified him as a possible suspect), the police failed to make clear his level of jeopardy. [76] I note that counsel for the appellant originally argued that the officer’s surreptitious recording of the second statement on November 8 was unlawful under s. 8 of the Charter , and the trial judge should have considered this under her residual discretion to exclude evidence. However, as this argument was abandoned at the hearing, I will not address it. [77] In response, the Crown argues that: i) the trial judge was entitled to find that Detective Hill’s handwritten notes provided a complete record of the substance of the August 22 telephone call; ii) the trial judge was correct not to exclude the statements on the basis of her residual discretion to exclude evidence; iii) even if the August 22 statement was involuntary and, thus, inadmissible, there was no connection between the August 22 interview and the November 8 interviews; and iv) the trial judge properly considered whether the appellant was a suspect at the time of the November 8 interviews and determined that he was not. (3) The Principles Applied (a) The August 22 Statement was Voluntary and Properly Admitted [78] I reject the appellant’s arguments regarding the voluntariness of the August 22 statement. [79] The confessions rule establishes that any statement made to a person in authority is admissible only where the Crown can demonstrate, beyond a reasonable doubt, that it was made voluntarily: R. v. Oickle , 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 30; R. v. Hayes , 2020 ONCA 284, 391 C.C.C. (3d) 453, at para. 38. [80] Where a trial judge applies the correct test and considers all relevant circumstances, deference is owed to the trial judge’s ultimate determination on voluntariness: Oickle , at para. 71; R. v. Pearson , 2017 ONCA 389, 348 C.C.C. (3d) 277, at para. 14, leave to appeal refused, [2017] S.C.C.A. No. 465. [81] In this case, it is alleged that the appellant’s statement was made subject to an inducement by Detective Hill. At the time this statement was given, the appellant was not a suspect, and he was not treated as such by the officer. Accordingly, he was not facing any jeopardy that could have compromised his willingness to cooperate with the officer. In my view, there is no evidence of any inducement, much less an inducement strong enough to raise a reasonable doubt as to whether the appellant’s will was overborne. The trial judge was entitled to accept Detective Hill’s evidence that her notes, while not a complete recording, sufficiently detailed the substance of the appellant’s statement. Non-recorded interrogations are not inherently suspect: Oickle , at para. 46; R. v. Culotta , 2018 ONCA 665, 142 O.R. (3d) 241, at para. 23, aff’d 2018 SCC 57, [2018] 3 S.C.R. 597. [82] I also find no error in the trial judge’s decision to refrain from exercising her residual discretion to exclude the statement. As discussed above, the circumstances of the statement provided independent evidence of fabrication. Consequently, the jury was entitled to consider whether the appellant had engaged in a deliberate concoction to avoid culpability. (b) The November 8 Statements were Voluntary and Properly Admitted [83] Where a statement by an accused is determined to have been made involuntarily and is accordingly inadmissible, any subsequent statement may also be excluded if “the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement”: R. v. Foster , 2017 ONCA 751, at para. 10, quoting R. v. I. (L.R.) and T. (E.) , [1993] 4 S.C.R. 514, at p. 526. [84] In this case, as I have found that the August 22 statement was voluntary, there is no need to address the issue of whether the November 8 statements were tainted. [85] With regard to the appellant’s argument that he was a suspect at the time of the November 8 interviews and, consequently, had a right to be informed of his right to counsel, this issue was sufficiently addressed by the trial judge. She accepted the evidence of Detective Monette and Sergeant Hudson that “they had no particular suspect in mind in November 2006 and that they wanted to interview the [appellant] because of his involvement with Mr. Zalal on the afternoon of his death as well as the fact that they believed that the [appellant] knew more about the murder than he had told Detective Hill”: Voluntariness Reasons, at para. 74. The trial judge was entitled to make this finding. I see no reason to interfere. [86] In any case, this court, per Fairburn J.A. (as she then was), recently held in R. v. Joseph , 2020 ONCA 73, 385 C.C.C. (3d) 514, at para. 49, that police are not obliged to caution a suspect “simply because he or she is a suspect”. Rather, s. 10(b) of the Charter is engaged at the time of arrest or detention: at para. 50, citing R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 20. I agree with this position. The appellant in this case was neither arrested nor detained, and the mere fact that he may have been a suspect did not engage his rights under s. 10(b) of the Charter . There was no Charter violation. The November 8 statements were voluntary and properly admitted. III. Did the trial judge err in admitting Mr. Khaleyi’s May 4, 2007 statement to the police for the truth of its contents? (1) Background [87] Mr. Ramin Khaleyi was a close associate of the appellant. Between early February 2007 and May 2007, Mr. Khaleyi contacted the police with an offer to provide information regarding the death of Mr. Zalal, as well as other criminal activities. At the time, Mr. Khlaleyi was facing charges for breaching a court order and fraud. [88] During this period, Mr. Khaleyi made numerous statements to the police pertaining to information he had about Mr. Zalal’s murder. Some of this information was based on his direct knowledge. In other instances, he was simply repeating what he had gathered from various sources. [89] When testifying as a witness at the appellant’s trial, Mr. Khaleyi recanted much of what he had told police, including the statements that inculpated the appellant. As a result, the Crown sought to have several of his pre-trial statements admitted under the principled exception to the hearsay rule. The relevant statements were provided on the following dates: February 7, 2007, February 11, 2007, April 20, 2007, April 24, 2007, May 3, 2007, and May 4, 2007. [90] The trial judge admitted Mr. Khaleyi’s May 4, 2007 statement under the principled exception to the rule against hearsay, concluding that the statement was both necessary and reliable. The appellant challenges the trial judge’s conclusions on both necessity and reliability. [91] A summary of the various conversations with the police, which culminated in the May 4, 2007 statement, is provided below. (2) The Statements (a) February 7, 2007: [92] On February 7, 2007, Mr. Khaleyi provided his first statement to the police. He agreed to be a confidential informant in exchange for payment and assistance with his outstanding criminal charges. No promises were given, but an indication was made that if the information provided was reliable, assistance might be possible. On this occasion, Mr. Khaleyi identified the appellant, Mr. Abdul-Hussein, and Mr. Kayem as involved in the murder. He also stated that the appellant told him that the gun used was thrown in a sewer on Marlin Private, a neighbourhood in Ottawa, along with a crowbar and two masks. (b) February 11, 2007: [93] Mr. Khaleyi gave another statement on February 11, 2007. On this occasion, he still wanted to become a confidential informant and again expressed a desire to be paid. He provided details about the information he had heard from others, including the appellant, about the location of the homicide. (c) April 20 & 24 2007: [94] Mr. Khaleyi provided additional statements to the police. (d) May 3, 2007: [95] Mr. Khaleyi was interviewed on May 3, 2007 after he alleged that he had been kidnapped and beaten by associates of the appellant the night before. He expressed a desire to become a witness against the appellant, as opposed to merely a confidential informant. He was upset and displayed clear animosity toward the appellant. In this statement, he mentioned that he had been with the appellant at a hotel where the appellant had confessed to committing the murder. He was told by police to take some time to compose himself before deciding to become a witness. (e) May 4, 2007: [96] On May 4, 2007, Mr. Khaleyi provided a videotaped statement to the police. He was under oath and received a caution about the consequences of lying. He was taken through the evidence he provided between February 7, 2007 and May 3, 2007. [97] Mr. Khaleyi claimed that the appellant had confessed to him about the murder of Mr. Zalal, as well as provided other information that placed the appellant with Mr. Kayem and Mr. Abdul-Hussein on the night of the shooting. [98] Concerning the confession, Mr. Khaleyi alleged that, shortly before Christmas in 2006, he spent the night at a hotel with his girlfriend, the appellant, and the appellant’s wife. At that time, Mr. Khaleyi had recently been released from jail. On the evening in question, he told the appellant that he had heard a rumour while in custody that the appellant had killed Mr. Zalal. Mr. Khaleyi asked the appellant if the rumours were true and if he had killed Mr. Zalal. The appellant replied “yes” and added that he had “the boys” drop off the body. [99] Mr. Khaleyi stated that the next day, the appellant told Mr. Khaleyi to “keep [his] mouth shut or [he is] gonna die”. [100] Mr. Khaleyi also told police that the day before Mr. Zalal’s murder, he met briefly with the appellant at Marlin Private. The appellant met with Mr. Khaleyi to drop off two cigarettes. The appellant, who was driving a Chevrolet Avalanche, then left, following Mr. Abdul-Hussein and Mr. Kayem in their silver and white, two-door car. [101] Mr. Khaleyi also provided information that was proved inaccurate, including: i) that Mr. Zalal had been bound and beaten prior to being shot; ii) that the shooting had occurred in a house; and iii) that the gun, a crowbar, and two masks used in the killing had been disposed of in an area of Ottawa. (3) Examination-in-chief and Testimony in voir dire : [102] At trial, Mr. Khaleyi, essentially recanted from his earlier statements. He repeatedly claimed that he had no memory of his interactions with the police. In his examination-in-chief, Mr. Khaleyi provided some evidence confirming his recollection of his statements to police. However, he also claimed that as a result of the passage of time, his poor memory due to alcohol and drug use, and his change in lifestyle, he was uncertain about the accuracy of the events he described in his statements. Since he consumed a large quantity of drugs on the night of the alleged confession, he could only say that he thought that the appellant had confessed. He stated that he had a limited independent memory of what he told the police. He claimed that he suffers from significant hearing loss and that this may have played a factor in what he believed he heard the appellant say at the hotel. He was given the chance to review his audio and video statements, including transcripts. Ultimately, he testified that he no longer believed that he heard the appellant confess to murder. [103] In light of Mr. Khaleyi’s inconsistent testimony (and his expressions of frustration while testifying), the Crown brought an application to declare Mr. Khaleyi an adverse witness and for permission to cross examine him on prior inconsistent statements, pursuant to ss. 9(1) and 9(2), respectively, of the Canada Evidence Act, R.S.C., 1985, c. C-5. [104] The Crown argued that Mr. Khaleyi was exaggerating the extent of his memory loss and that it was necessary to cross examine him on the inconsistencies in his testimony. They further argued that Mr. Khaleyi was an adverse witness, in light of the fact that he claimed: i) that he had repeated his position numerous times; ii) that the Crown had ruined his life; and iii) that reviewing his prior statements was unlikely to assist with his memory. [105] The trial judge allowed the Crown’s application under s. 9(2) to cross examine Mr. Khaleyi on his May 4, 2007 video statement, among others. She later held that Mr. Khaleyi was an adverse witness under s. 9(1). [106] However, Mr. Khaleyi’s cross-examination did not prove fruitful. The Crown therefore brought an application to admit Mr. Khaleyi’s prior statements to police for the truth of their contents. [107] The trial judge admitted Mr. Khaleyi’s May 4, 2007 statement for the truth of its contents. She held that the statement: i) was necessary, because Mr. Khaleyi had recanted from his prior statements, and ii) satisfied the threshold reliability requirement, as the statement was taken under oath and videotaped, the defence would have an opportunity to cross examine Mr. Khaleyi, and parts of the statement were independently corroborated. (4) Arguments on Appeal [108] The appellant argues that the trial judge erred in admitting the May 4, 2007 statement for four reasons. [109] First, she erred in her assessment of necessity by misapprehending the extent of the witness’ lack of memory. While Mr. Khaleyi did profess a lack of memory on some aspects of his former testimony, he did testify about other aspects, including his encounter with the appellant on the evening of the murder, and about a threat allegedly made by the appellant. Accordingly, there was no need for the witness’ prior statement to be admitted and the necessity requirement was not met. [110] Second, the trial judge erred in her assessment of threshold reliability by finding that the defence had a meaningful opportunity to cross-examine Mr. Khaleyi, given his professed lack of memory. [111] Third, Mr. Khaleyi’s statement lacked sufficient circumstantial or evidentiary guarantees of reliability, as the corroborative evidence adduced by the Crown did not eliminate alternative explanations for the statement, such as the declarant not being truthful. [112] Fourth, even if the threshold requirements for admissibility were met, the trial judge erred by failing to consider and exercise her residual discretion to exclude the statement. The appellant argues that Mr. Khaleyi was a “manifestly unreliable witness” who was motivated by a desire for financial compensation and assistance with criminal charges, as well as animosity toward the appellant. As Mr. Khaleyi’s evidence was not adequately corroborated, there was a real risk of a wrongful conviction based on his flawed testimony: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 2. Since the alleged confession was central to the Crown’s case, the trial judge should have noted the risk that the jury would be unable to see past the allegation of the confession and thus be unable to properly assess Mr. Khaleyi’s credibility. The verdict may have been different had the statement been excluded. [113] In response, the Crown argues that the May 4, 2007 statement was necessary given how Mr. Khaleyi provided only “slivers” of his prior statements to police in his trial testimony, and otherwise effectively recanted. [114] The statement was also reliable, both procedurally and substantively. [115] The Crown next argues that it is implicit from the trial judge’s brief oral reasons that she consciously declined to exercise her residual discretion, which she had exercised at other times throughout the trial. [116] Finally, if the trial judge made any errors, the curative proviso is applicable, as no substantial wrong or miscarriage of justice occurred. (5) Governing Principles (a) Standard of Review [117] A trial judge’s decision on the admissibility of evidence is entitled to deference on appeal, provided that it is compliant with the correct legal applicable principles and does not disclose a material misapprehension of the evidence central to the assessment: R. v. Blackman , 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 36; R. v. Dupe , 2016 ONCA 653, 340 C.C.C. (3d) 508, at para. 50. (b) Principled Exception to the Rule Against Hearsay Evidence [118] Hearsay evidence is presumptively inadmissible on the basis that, “absent contemporaneous cross-examination of the declarant, the party against whom the evidence is offered cannot effectively test the reliability and veracity of the out-of-court statement”: Dupe , at para. 44. Such evidence is generally “excluded both to protect the integrity of the truth-seeking function of the trial and to preserve the fairness of the trial”: at para. 44. [119] However, under the principled approach to hearsay, “hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities”: R. v. Bradshaw , 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23. (c) The Principled Exception - Necessity [120] In R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, Watt J.A. described the necessity requirement in the following terms, at para. 123: The necessity requirement of the principled approach to the hearsay rule may be established where the party seeking admission of the hearsay statement cannot compel testimony from the declarant. Indeed, unavailability and thus necessity can be established even where the declarant is not unavailable in the strict physical sense. [Emphasis added; citations omitted.] [121] Prior jurisprudence demonstrates that the necessity requirement should not be narrowly construed. Lamer C.J. (as he then was) writing in R. v. B. (K.G.) , [1993] 1 S.C.R. 740, described the flexible analysis of this criterion, at p. 796: However, it is important to remember that the necessity criterion "must be given a flexible definition, capable of encompassing diverse situations" . Wigmore… referred to two classes of necessity: (1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing. This is the commoner and more palpable reason .... (2) The assertion may be such that we cannot expect, again, or at this time, to get evidence of the same value from the same or other sources .... The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same. [Emphasis added; citations omitted.] [122] Finally, “[w]here a witness recants from a prior statement, necessity is established”: R. v. Youvaraj , 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 22; see also R. v. McMorris , 2020 ONCA 844, at para. 22. (d) The Principled Exception – Threshold Reliability [123] Watt J.A. observed in Srun , at paras. 125-127, that the threshold reliability requirement can be met in one of two, non-mutually exclusive ways, generally referred to as procedural reliability and substantive reliability: Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying. However, some form of cross-examination, as for example of a recanting witness at trial is usually required. Substantive reliability is established where the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement . The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process. Procedural and substantive reliability are not mutually exclusive. They may work in tandem in that elements or both can combine to overcome the specific hearsay dangers a statement might present even where each, on its own, would be insufficient to establish reliability. [Emphasis added; citations omitted] [124] A trial judge assessing the admissibility of evidence in a voir dire must keep in mind the distinction between threshold and ultimate reliability. At the admissibility stage, a trial judge has a ‘limited role’ in assessing the evidence’s threshold reliability on a balance of probabilities. It is for the trier of fact to determine the evidence’s ultimate reliability; “it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire ”: R. v. Khelawon , 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 93; see also Bradshaw , at para. 42; McMorris , at para. 23. (e) Residual Discretion to Exclude Unduly Prejudicial Evidence [125] Satisfying the twin criteria of the principled exception to the hearsay rule does not end the admissibility analysis, however, as a trial judge maintains a residual discretion to “exclude otherwise admissible hearsay where its probative value is outweighed by its prejudicial effect”: Srun , at para. 128. (6) The Principles Applied (a) The Statement was Necessary and Reliable [126] I am satisfied that the trial judge correctly admitted Mr. Khaleyi’s May 4, 2007 statement. As I will explain, it met the necessity and reliability requirements under the principled exception to the hearsay rule. Furthermore, the trial judge was correct not to use her residual discretion to exclude the statement, given its significant probative value. [127] At trial, Mr. Khaleyi effectively recanted much of what he had told the police. He repeatedly claimed that he had a limited memory of his interactions with police and refused to adopt the content of his earlier statements as true. He provided several explanations as to why his evidence differed from his statements, including how he: was using drugs heavily, including when he heard the alleged confession; was suffering from mental health issues; suffered from hearing loss, which likely impacted his earlier belief that he heard the appellant confess; was manipulated by the police; wanted assistance with his charges; and wanted money for his evidence. He commented that reviewing transcripts of his past statements was unlikely to refresh his memory. Ultimately, he stated that he could not now swear under oath that he heard the appellant confess to the murder. These circumstances formed the context in which the Crown sought to adduce the May 4 statement for the truth of its contents. [128] The trial judge, as the evidentiary gate keeper, was obliged to satisfy herself that the May 4 statement satisfied the threshold admissibility requirements before it could be admitted for its truth. Once admitted, it could then be considered by the jury, who as the triers of fact, were responsible for the determination of the ultimate reliability and consideration of the statement. In my view, the trial judge correctly carried out her function. [129] First, the necessity criterion was satisfied. By recanting from the statement, Mr. Khaleyi was effectively depriving the court of his evidence. This was sufficient to satisfy this requirement: Youvaraj , at para. 22; McMorris , at para. 22. [130] Second, the reliability requirement was also met. [131] The statement was procedurally reliable. Both parties acknowledge that the May 4 statement was made under oath and video recorded in its entirety. Further, Mr. Khaleyi’s explanations for his statements and recantation were subject to cross-examination by the defence. [132] The appellant argues that the trial judge was wrong to rely on Mr. Khaleyi’s availability for cross-examination as an indicium of procedural reliability in this case. I do not agree. [133] While Mr. Khaleyi offered multiple explanations for his changed testimony, I do not consider this as having rendered the cross-examination a nullity. In this regard, I note that Mr. Khaleyi generally admitted to making the prior statement and provided explanations for changing his testimony. As noted earlier, he claimed he made the past statements because he: was using drugs; had mental health issues; was manipulated by the police; wanted assistance with other charges; and wanted money for his information. Defence counsel cross examined Mr. Khaleyi on these explanations. Where a witness provides explanations for their changed testimony, the trier of fact is able to assess both versions of their story and the explanation: Youvaraj, at para. 49, citing R. v. U. (F. J.) , [1995] 3 S.C.R. 764, at para. 46. In my view, the defence had a full opportunity to cross examine Mr. Khaleyi on these issues. [134] In conclusion, Mr. Khaleyi’s availability for cross-examination supports the May 4 statement’s procedural reliability. As the inquiry into threshold reliability is “not so focused on the question of whether there is reason to believe the statement is true, as it is on the question of whether the trier of fact will be in a position to rationally evaluate the evidence”, I conclude that the nature of Mr. Khaleyi’s changed testimony did not deprive the appellant of a meaningful opportunity for cross-examination or undercut the statement’s procedural reliability: Khelawon , at para. 76. The trier of fact was positioned to evaluate the evidence, including Mr. Khaleyi’s explanations for his changed testimony. The May 4 statement was procedurally reliable. [135] I also conclude that the May 4 statement had certain markers of substantive reliability. The trial judge did not have the benefit of the Supreme Court’s reasons in Bradshaw . However, I note that certain material aspects of Mr. Khaleyi’s May 4 statement were corroborated by other pieces of evidence. The material points and their relevant corroborative evidence include: · The appellant’s involvement in the murder: The wiretap evidence suggesting the appellant was directly involved in the murder; · Mr. Kayem’s involvement in the murder: Mr. Kayem’s DNA evidence was found on a cigarette butt located near the deceased’s body; and · Mr. Khaleyi’s interaction with the appellant and Mr. Kayem at Marlin Private on the night of the murder: The cell phone tower evidence demonstrating that both the appellant and Mr. Kayem accessed the cell tower near Marlin Private, at around 10 p.m. [136] Here, alternative explanations for Mr. Khaleyi’s statement include that he was lying because he wanted financial compensation, assistance with his charges, revenge against the appellant, or to secure his safety from the appellant. [137] I agree with the respondent that, to an extent, Mr. Khaleyi’s financial and safety interests were contingent on the information being provided to police being true. However, I agree with the appellant that the available corroborative evidence is not capable, standing alone, of ruling out these alternative explanations. [138] Despite these evidentiary shortcomings, I conclude that the markers of procedural reliability, either alone or in tandem with the corroborative evidence and circumstances suggesting substantive reliability, are sufficient to demonstrate threshold reliability. The statement bore the traditional markers of procedural reliability. Mr. Khaleyi’s testimony at trial provided the defence with the opportunity to cross examine him and impeach the credibility of the May 4 statement. Accordingly, the trial judge was correct to admit Mr. Khaleyi’s evidence and to leave an assessment of ultimate reliability to the trier of fact. (b) The Trial Judge Did Not Err by Failing to Exclude the Evidence Under Her Residual Discretion [139] I also conclude that the trial judge was correct not to exclude the evidence under her residual discretion. [140] As indicated earlier, the May 4 statement was highly probative. This evidence, were it believed to be true, would directly implicate the appellant in the victim’s murder. [141] The prejudicial risk from admitting the statement is outweighed by the probative value. I acknowledge that there is a risk inherent to relying on the testimony of unsavoury witnesses. However, this risk can be mitigated by counsel’s submissions and the instructions to the jury, as was done here. In this regard, I repeat for convenience portions of the trial judge’s charge to the jury: Now I’m going to talk to you about some of the Crown witnesses who were of unsavoury character. Experience teaches us that testimony from Crown witnesses with these backgrounds must be approached with the greatest care and caution. Common sense also tells you that, in light of these circumstances, there is good reason to look at Ms. Smith-Banks, Mr. Abdullahi, Mr. Ahmed and Mr. Khaleyi’s evidence with the greatest care and caution . You are entitled to rely on their evidence, however, even if it is not confirmed by another witness or other evidence, however – rather, but it is dangerous for you to do so. Accordingly, you should look for some confirmation of their evidence from somebody or something other than their own testimony before you rely upon their evidence in deciding whether Crown counsel has proven the case against Nawaf Al-Enzi beyond a reasonable doubt. These witnesses and the circumstances in which they testified might well make you wish that somebody or something else confirmed what they said. You may believe their testimony, however, if you find it trustworthy, even if no one or nothing else confirms it. When you consider it, however, keep in mind who gave the evidence and the circumstances under which they testified . [Italics in original; underlining added.] [142] While I acknowledge that there may be issues with Mr. Khaleyi’s evidence, I conclude that the trial judge was correct in finding that these difficulties were matters properly left to the ultimate trier of fact. It was open to the trial judge to refuse to exercise her residual discretion to admit the evidence. [143] In conclusion, I do not see any errors with the trial judge’s ruling necessitating appellate intervention. This decision was informed by correct principles of law and a proper understanding of the evidence. It is therefore entitled to deference. I would uphold the ruling that Mr. Khaleyi’s May 4 statement was properly admitted under the principled approach to hearsay. IV. Did the trial judge err in leaving constructive first degree murder by way of forcible confinement with the jury, or in her instruction to the jury on this route of liability? (1) Background [144] The Crown’s theory at trial was that the appellant murdered Mr. Zalal due to a dispute over a firearm that Mr. Zalal had loaned him. According to the Crown, the appellant arranged to have Mr. Zalal picked up under the pretence that he would have his firearm returned to him. After the appellant and his friends picked up Mr. Zalal, the appellant shot him in the back of the head and had his body left in a field. [145] At the close of the Crown’s case, the appellant brought a motion for a directed verdict, arguing that the trial judge should remove first degree murder as a viable route of liability. He argued that there was insufficient evidence that the murder was planned and deliberate or committed during a kidnapping. [146] The trial judge denied the application. She found that the circumstantial evidence, including the evidence demonstrating the existence of the firearm dispute and showing that Mr. Zalal was with the appellant and his friends on August 18, 2006, satisfied her that first degree murder should be left to the jury. [147] In her charge, the trial judge thus instructed the jury on two routes of liability for first degree murder: by planning and deliberation, pursuant to s. 231(2) of the Criminal Code , and by way of forcible confinement, pursuant to s. 231(5)(e) of the Criminal Code . In doing so, the trial judge outlined for the jury the elements the Crown had to prove beyond a reasonable doubt to establish constructive first degree murder. (2) Governing Principles [148] When counsel for an accused applies for a directed verdict at the end of the Crown’s case, the trial judge must decide whether there is some evidence on the basis of which a reasonable jury, properly instructed, could return a verdict of guilty for the offence in question: Hayes , at para. 65; R. v. Tomlinson , 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 151. [149] For a trial judge to make this finding, the Crown must adduce evidence on every essential element of the offence for which the Crown has the evidential burden: Hayes , at para. 65; Tomlinson , at para. 151. If the Crown’s case is circumstantial, as was the case here, the trial judge must engage in a limited weighing of the evidence to determine whether it is “reasonably capable of supporting the inferences the Crown seeks to have the jury draw”: Hayes , at para. 65; Tomlinson , at paras. 153-154. [150] The ultimate test for leaving a route of liability with the jury is whether the evidence, if believed, could reasonably support an inference of guilt: Hayes , at para. 65; Tomlinson , at para. 154. [151] A decision to leave a route of liability with the jury is to be reviewed on a standard of correctness: Hayes , at para. 65; Tomlinson , at para. 155. [152] In R. v. McGregor , 2019 ONCA 307, 145 O.R. (3d) 641, this court described the five essential elements of constructive first degree murder under s. 231(5)(e), at para. 60. They are reproduced below, with slight modifications: 1) that the accused committed or attempted to commit kidnapping or unlawful confinement, contrary to ss. 279(1) and 279(2) of the Criminal Code ; 2) that the accused murdered the victim; 3) that the accused participated in the murder in such a manner that they were a substantial cause of the victim’s death; 4) that no intervening act by somebody else resulted in the accused no longer being substantially connected to the victim’s death; and 5) that the kidnapping and the murder were part of the same transaction. (3) Arguments on Appeal [153] The appellant argues that the trial judge erred in leaving constructive first degree murder with the jury. There was no evidentiary basis on which the jury, properly instructed, could have concluded that Mr. Zalal was kidnapped for any reason other than as part of a plan to kill him. Planned and deliberate murder should thus have been the only route of liability put to the jury. [154] The appellant also argues that, even if such an evidentiary basis did exist, the trial judge erred in her instruction by failing to explain how the jury could reject planning and deliberation but accept murder by way of kidnapping and forcible confinement. According to the appellant, the trial judge’s error is the same as the one identified by Brown J.A. in R. v. Saleh , 2019 ONCA 819, 380 C.C.C. (3d) 445, at para. 163: The instructions did not provide any guidance to the jury about how they could have a reasonable doubt that the murder for which Saleh was responsible at law was a planned and deliberate one – with kidnapping forming a key part of the plan – but was one caused by Saleh while committing the predicate offence of kidnapping. [155] In response, the Crown argues that the trial judge did not err. The evidence supported the inference that the appellant had planned to kidnap Mr. Zalal for a purpose other than murdering him (for example, to intimidate him), but subsequently decided to murder him. The Crown also argues that the instruction properly equipped the jury to consider the evidence. (4) The Principles Applied [156] My conclusions on this issue are as follows. [157] First, I disagree with the appellant that trial judge lacked the sufficient evidentiary basis necessary to leave constructive first degree murder with the jury. [158] Second, I agree with the appellant that the trial judge failed to explain to the jury how they could reject planning and deliberation as a route to first degree murder, but still find that the appellant is guilty of first degree murder by way of constructive murder. However, for the reasons that follow, I am of the view that this error did not cause a substantial wrong or miscarriage of justice. (a) There Was Sufficient Evidence to Leave Constructive First Degree Murder With the Jury [159] On appeal, the appellant does not contest the trial judge’s charge to the jury with respect to the ‘planning and deliberation’ route to first degree murder. The issue alleged is in the trial judge also leaving an alternative route to liability for first degree murder by way of constructive murder, pursuant to s. 231(5)(e) of the Criminal Code . [160] I disagree with the appellant on this issue. In my view, there was ample circumstantial evidence which justified the trial judge leaving constructive first degree murder with the jury. This evidence included: · The evidence that the appellant and the deceased did not get along: First, there was evidence that in the spring of 2006, Mr. Zalal was angered that the appellant test fired, without his permission, a gun that they had purchased together. Mr. Zalal called this “a bitch move”. Second, there was evidence that on August 18, 2006, Mr. Zalal was again with the appellant when he refused to return a gun that he had borrowed while Mr. Zalal was in prison. Mr. Zalal was overheard yelling at the appellant on the phone, at which time he called the appellant a “bitch”. · The evidence that the deceased was with the appellant’s associates on the day he was murdered: There was evidence that on August 18, 2006, the deceased told his close friend that he was with a driver named “Moe” or Moo” (“Moe” was a nickname for the appellant’s friend and subsequent co-accused, Mr. Kayem) on his way to get his gun back. Mr. Zalal used Mr. Kayem’s cell phone to carry out this conversation. This was the last contact the deceased had with his friend. · The evidence that neither Mr. Kayem nor Mr. Abdul-Hussein had any motive to harm the deceased: The evidence disclosed no motive by the appellant’s associates to harm the deceased. Further, the appellant’s associates were not well known to the deceased. The appellant was the only one who had a motive to harm the deceased, grounded in the evidence. · The evidence allegedly demonstrating the appellant’s plan to separate the deceased from his friends: the evidence from the cell phone records showed a series of intertwined calls from the appellant to Mr. Kayem. Under the Crown’s theory, the appellant made these calls to orchestrate the pick-up of the deceased by Mr. Kayem and Mr. Abdul-Hussein. [161] The trial judge reviewed this relevant circumstantial evidence. In my view, it could ground an inference that the appellant had lured Mr. Zalal to a location under the pretence of having his firearm returned to him. If the jury had doubt that the appellant had planned to kill Mr. Zalal, they could find that the appellant had kidnapped him for the alternate purpose of intimidating him, but instead decided to murder him during the kidnapping, per the Crown’s alternate theory. Accordingly, I conclude that there was a sufficient evidentiary basis for the trial judge to leave constructive first degree murder with the jury. (b) The Jury Charge was Insufficient, but this Error can be Cured by the Curative Proviso [162] I would also dismiss the appellant’s second argument, namely that the trial judge in her charge erred in a manner identical to what justified the ordering of a new trial in Saleh . In my view, Saleh is distinguishable. While the trial judge did err in her jury charge, a functional assessment of the charge demonstrates that this error does not warrant appellate intervention. [163] In Saleh , Brown J.A. found that the Crown’s case had “rested on demonstrating Saleh’s participation in a planned and deliberate murder”: at para. 198. In earlier written submissions, Crown counsel took the position that “this is a planned and deliberate first degree or nothing”: at para. 146. However, the trial judge added two other routes of liability during the course of the pre-charge conference. One additional route was constructive murder premised on kidnapping. In the Crown’s brief closing submissions on this path to first degree murder, Crown counsel “did not offer the jury a reason for a kidnapping other than to kill” the deceased: at para. 159. Brown J.A.’s finding meant that, “when viewed in context”, the error was “serious”: at para. 198. The trial judge had increased the number of routes of liability with “paths… not requested by the parties at the start of the pre-charge conference”, and without properly equipping the jury with the tools necessary to understand them: at paras. 168, 198. [164] In this case, the Crown’s case was predicated on both theories of liability. The Crown’s submissions would have therefore aided the jury in understanding how they could reject planning and deliberation, yet accept the Crown’s kidnapping theory. In this respect, I reproduce the relevant portions of the Crown’s closing address, where Crown counsel stated the following: There’s another way of first degree murder, and that would involve a last minute shooting with the intent to kill by Nawaf Al-Enzi, but if you had some doubt that he actually intended to kill him until he got him into the car, but that he thought he was going to intimidate him, or rough him up, or let him know that Nawaf was boss but maybe let him live, and then decide at the last minute, “I’m going to shoot him,” once he gets him into the car, lured him away by fraud in order to do some harm to him, and then kidnapped by fraud – so, kidnapping can happen by force, as we all – that’s what we usually think of, but kidnapping can happen by a lure or a fraud as well, that’s another way to kidnap someone. So, if Nawaf – if you find that Nawaf suckered Mohamed Zalal into that ride, why else is he separating him from his friends but that he has some evil intent, but if you’re not satisfied that he had formed the intent to kill until the last minute that’s still first degree. Where he had the intent to kidnap, to lure into the car by fraud to get him away from his friends so he could threaten, menace, intimidate, harm in some lesser degree than murder, and then decide at the last minute to convert it into murder, that is also a route to first degree. [165] In this context, while the trial judge erred in failing to explain to the jury how to differentiate between the two routes of liability, this error was minor and can properly be saved under the curative proviso in s. 686(1)(b)(iii) of the Criminal Code : R. v. Nguyen , 2015 ONCA 278, 125 O.R. (3d) 321, at paras. 160-162, 164, per Weiler J.A. (concurring), leave to appeal refused, [2015] S.C.C.A. No. 365. [166] In my view, no substantial wrong or miscarriage of justice occurred here. The jury would have understood that they could only find the appellant guilty of constructive first degree murder if they did not accept that the murder had been planned and deliberate, yet accepted that the appellant had kidnapped Mr. Zalal for another purpose and changed his mind during the kidnapping. The Crown’s closing submissions identified the relevant potential scenarios and explained to the jury how they could reach a verdict of constructive first degree murder. I note that the Crown’s submissions on this point resemble Brown J.A.’s hypothetical instruction in Saleh , at paras. 161 and 164. [167] Accordingly, I would dismiss this ground of appeal. V. Did the trial judge err in finding that the communications between the appellant and his wife, made while they were still married, were not protected by spousal privilege? (1) Background [168] On August 9, 2007, the police sought a judicial authorization under ss. 185 and 186 of the Criminal Code . They wished to intercept the private communications of the appellant, Mr. Kayem, and Mr. Abdul-Hussein, on the basis that they were involved in the murder of Mr. Zalal. [169] The first authorization was granted on August 10, 2007, and five subsequent authorizations were granted over the course of the investigation. [170] Between August 13, 2007 and June 17, 2008, the police intercepted 33 private communications between the appellant and his then wife, Zeinab Abdul-Hussein. The appellant and Ms. Abdul-Hussein divorced following the appellant’s first conviction. [171] As described above, many of these conversations can be seen as evidence of the appellant attempting to prevent Mr. Kayem (or “Auntie”) from returning to Canada. [172] The Crown sought to introduce these conversations as evidence. They argued that, while the communications occurred while the appellant and Ms. Abdul-Hussein were married, any spousal privilege that may have attached to those communications was no longer in effect, as the appellant and his former wife were now divorced. [173] The appellant disagreed, arguing that spousal privilege still attached to the communications. He suggested that the operation of spousal privilege was dictated by the nature of the relationship at the time of the communication, instead of the relationship status at the time the privilege is claimed. As the communications had occurred during the marriage, the privilege was still operative. [174] The trial judge agreed with the Crown, holding that spousal privilege does not survive divorce. In reaching this conclusion, she noted that, while the issue has not been definitively addressed, it “is clear from the jurisprudence that the legislative purpose of the spousal privilege is intended to ensure that marital harmony is preserved.” To extend spousal privilege to communications between former spouses after divorce would not accord with this legislative purpose, as there is no longer any marital harmony to protect. Therefore, since the appellant and Ms. Abdul-Hussein were no longer married, their communications were not privileged and could be admitted as evidence. [175] The trial judge also considered whether to exercise her discretion to exclude the communications on the basis that the privilege did exist during the appellant’s first trial. However, she concluded that, given that she was conducting a new trial on the current state of affairs, it would not be in society’s interest to restrict the Crown from introducing evidence that is now properly admissible. (2) Arguments on Appeal [176] On appeal, the appellant argues that the trial judge erred in finding that spousal privilege does not survive divorce. He argues that, contrary to the findings of both the trial judge and Sharpe J. (as he then was) in R. v. Rendon , [1997] O.J. No. 5505 (Gen. Div.), the conclusion that spousal privilege dissolves upon the dissolution of marriage does not accord with the wording of s. 4(3) of the Canada Evidence Act . [177] In support of this argument, he points to the language in s. 4(3) that no husband or wife “is compellable to disclose any communication made during their marriage ” (emphasis added). According to the appellant, this phrasing indicates that privilege extends to all communications made during the marriage. [178] The appellant also argues that, contrary to the conclusion of Sharpe J., extending the privilege beyond the period of marriage would promote and protect marital harmony. Society has an interest in former spouses maintaining harmonious relationships, including for the sake of any children. Further, as divorce is commonplace in modern society, the choice not to protect marital communications after divorce may undermine marital harmony by discouraging honest communication during the marriage. [179] Finally, the appellant takes the position that, even if privilege does not attach to the communications, the trial judge erred in admitting them in light of the fact that the divorce was a direct result of the appellant’s first conviction. Under this argument, the admission of the communications continued the miscarriage of justice occasioned by the first trial. [180] The Crown makes three arguments in response: i) as s. 4(3) requires that the person invoking the privilege be a “husband” or “wife” at the time of their testimony, the provision cannot extend to former or future spouses; ii) extending spousal privilege to former spouses would not accord with the purposes of the privilege; and iii) the trial judge was correct not to exclude the communications under her residual discretion. (3) Governing Principles [181] The parties’ arguments on spousal privilege focused on section 4(3) of the Canada Evidence Act , which states: No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage. [182] In R. v. Couture, 2007 SCC 28, [2007] 2. S.C.R. 517, the Supreme Court of Canada described the effect of this privilege at para. 41: The privilege is testimonial in nature, giving a right to withhold evidence but the communications themselves are not privileged. The privilege belongs to the spouse receiving the communication and can be waived by him or her. [183] Two historic rationales for this privilege have survived to this day, including: i) the promotion of marital harmony, and; ii) the prevention of the indignity of having one spouse testify against another: Rendon , at para. 46; R. v. Salituro, [1991] 3 S.C.R. 654, at p. 672; Couture , at para. 43; Nguyen , at para. 20. [184] Of note is how this court has previously held, albeit in a different context, that spousal privilege does not extend to common-law spouses: R. v. Nero , 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 185, leave to appeal refused, [2016] S.C.C.A. No. 184; Nguyen. [185] Competency, compellability, and privilege are distinct but related concepts. [186] Competency refers to a person’s legal capacity to give evidence in a court of law. [187] Compellability refers to the ability to force a witness by subpoena to give evidence in court under the threat of contempt proceedings. [188] Under the spousal incompetency rule as it existed previously, married spouses of accused persons were neither competent nor compellable witnesses for the Crown, subject to limited exceptions. [189] Privilege is the right of a person or class of persons to exclude certain communications from evidence or to refuse to testify about matters covered by the privilege. The relevant privilege here is the spousal privilege under s. 4(3). This court previously observed that the goals of protecting marital harmony and avoiding the natural repugnance resulting from one spouse testifying against the other animate the rules governing spousal incompetency compellability, and privilege: Nguyen , at paras. 10-20. [190] The admissibility of lawfully intercepted spousal communications is governed by the combined effect of two statutory provisions: s. 4(3) of the Canada Evidence Act and s. 189(6) of the Criminal Code . [191] Section 189(6) of the Criminal Code states that: Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege. [192] In Rendon , Sharpe J. addressed the issue of the combined effect of s. 4(3) and s. 189(6). He explained that it is clear that “the effect of s. 189(6) is to prevent the [C]rown from adducing into evidence communications between husband and wife, although lawfully intercepted, if at the time of the trial the parties are still married”: at para. 38; see also Nero , at paras. 187-189. [193] Sharpe J. went on to consider whether spousal privilege survived the dissolution of a marriage, concluding it did not. His reasoning on this issue was set out at para. 46: As a matter of principle, it is difficult to see why the privilege should survive the marriage . The various decisions that have been cited indicate that the purposes of the privilege are the promotion of marital harmony and the prevention of the indignity of having one spouse testify against another. Plainly, neither purpose is served once the marriage has been dissolved . There is a clear trend in the case law, signalled in particular by the Salituro case, to limit the scope of evidential disability of spouses. [Emphasis added.] (4) The Principles Applied (a) Spousal Privilege Under the Canada Evidence Act Does Not Survive Divorce [194] I conclude that spousal testimonial privilege under s. 4(3) of the Canada Evidence Act does not survive divorce. I reach this conclusion by considering the statutory language in its entire context, in its grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: R. v. Gallone , 2019 ONCA 663, 147 O.R. (3d) 225, at para. 30, citing Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Markham: LexisNexis, 2014), at p. 7. I place emphasis on both the plain language of the statute and the policy rationale underlying the privilege in reaching this conclusion. [195] Accordingly, the intercepted communications between the appellant and Ms. Zeinab Abdul-Hussein were not privileged at the time of trial, as the two were no longer married. The trial judge did not err on this issue, nor in refusing to exercise her gatekeeper function to exclude this otherwise admissible evidence. [196] The first source of my conclusion on the limitations of spousal privilege under s. 4(3) is the language of the statute itself. I reproduce it again for emphasis: No husband is compellable to disclose any communication made to him by his wife during their marriage , and no wife is compellable to disclose any communication made to her by her husband during their marriage . [Emphasis added.] [197] The plain language of this section does not support the appellant’s interpretation that the privilege survives divorce. Section 4(3) makes clear that the class of people who are not compellable to disclose marital communications are husbands and wives. This is distinct from the language describing what constitutes a marital communication, namely communications made during a marriage. [198] I do not agree with the appellant’s argument that the language of “any communication made…during their marriage” exclusively governs the scope of the provision, such that the privilege attaches to any communication made during the marriage regardless of the marital status of the one claiming the privilege. This interpretation would deprive the references to “No husband” and “no wife” of meaning. Such an interpretation violates the presumption against tautology, according to which it is presumed that the legislature avoids superfluous or meaningless words. Instead, every word has a specific role to play in advancing the legislative purpose: Canada (National Revenue) v. Thompson , 2016 SCC 21, [2016] 1 S.C.R. 381, at para. 32; Gallone , at para. 31. [199] In my view, there are two relevant requirements in subsection 4(3): i) that the communication is one that is made during the marriage ; and ii) that the person claiming the privilege is, at the time of the claim , a husband or wife . [200] I am also of the view that the appellant’s interpretation of this privilege does not meaningfully promote the relevant policy goals underlying the privilege. The appellant argues that extending spousal testimonial privilege to divorcees will promote and protect marital harmony. In Salituro , Iacobucci J. observed that “[s]ociety can have no interest in preserving marital harmony where spouses are irreconcilably separated because there is no marital harmony to be preserved”: at pp. 675-76. While it is arguable that Iacobucci J.’s comments apply to divorcees as well, I will nevertheless consider the parties’ arguments on this point. [201] First, I agree with the respondent that extending this privilege to divorcees is inconsistent with the scope of communications protected by the privilege – namely, those made during the marriage. [202] Second, prior judicial treatment of the scope of the spousal incompetency rule demonstrates how the policy justification for the rule, as it then existed, disappeared in the context of divorced spouses and spouses with no reasonable prospect of reconciliation. As noted earlier, the protection of martial harmony and the avoidance of the natural repugnance resulting from one spouse testifying against another are purposes governing both spousal incompetency and privilege: Nguyen , at para. 20. In Sallituro , Iacobucci J. observed, during his analysis of spousal incompetency, that the “conclusion that a divorced spouse should not be a competent witness because of his or her former marital status is contrary to common sense”: Salituro , at p. 677. In his view, the policy justification for the spousal incompetency rule disappeared in the context of divorced or irreconcilably separated spouses, and he concluded that irreconcilably separated spouses were competent witnesses for the prosecution: Salituro , at pp. 671 and 677; see also R. v. Nguyen , 2010 ONSC 5843, 278 C.C.C. (3d) 490, at para. 18, aff’d 2015 ONCA 278, 125 O.R. (3d) 321, leave to appeal refused, 2015 S.C.C.A No. 365. [203] As the policy goals underlying the spousal incompetency rule were said to disappear in the context of divorcees, I consider this relevant in determining whether these same policy goals warrant extending spousal privilege to that same group. [204] Third, I note that even if the privilege was extended to divorced spouses, it could still be waived by the recipient of the communication at any time. Extending the privilege to divorcees would not meaningfully address the risk raised by the appellant, namely that marital harmony will be undermined if the privilege did not apply to divorcees, as spouses cannot be certain, should they divorce, that their communication will remain confidential. This risk will still exist regardless of whether the privilege can be claimed by divorcees, as the recipient can always simply waive the privilege. [205] While I agree with the appellant that society’s interest in promoting harmony between spouses may not necessarily end with the dissolution of their marriage, I am of the view that extending the privilege to divorcees is a legal reform best left to the legislature. I am persuaded by Iacobucci J’s comments in Salituro on this point. I do not consider an interpretation of a statute that effectively amounts to a rewriting of it to be the kind of incremental change to the law that Iacobucci J. spoke of as permissible for courts to undertake: Salituro , at p. 670. Nor do I think reading into s. 4(3) the phrase ‘divorced spouse’ is necessary to keep the law in step with the dynamic and evolving fabric of our society: Salituro , at p. 670. This is particularly so, given the arguable legal trend away from recognizing spousal privilege at all, or at least not significantly expanding its scope: R. v. Oland , 2015 NBQB 247, 446 N.B.R. (2d) 317, at para. 18, aff’d 2016 NBCA 58, leave to appeal refused, [2016] S.C.C.A. No. 188. [206] My conclusion that the policy underlying the privilege does not justify the appellant’s interpretation is strengthened when I consider that this privilege does not apply to common-law spouses. The goals governing the privilege were insufficient to warrant this court extending the privilege to such spouses, who in my view have a greater interest in protecting marital harmony and avoiding the repugnance of testifying against one another than divorcees: Nero , at para. 185. While I acknowledge that these determinations were made in different analytical contexts from that in the present case, I find these cases helpful in resolving this issue. [207] In conclusion, an examination of the language of s. 4(3) and the policy goals underlying spousal privilege demonstrate that spousal privilege cannot be claimed by an individual where his or her marriage ended by divorce. (b) Admitting the Communication Does not Perpetuate the Initial Trial’s Miscarriage of Justice [208] I also disagree with the appellant’s argument that admitting the appellant’s communications with his spouse would perpetuate the miscarriage of justice occasioned by the first trial. [209] As I understand the appellant’s position, he argues that: i) at the time of his first trial, he was married to his spouse; ii) his subsequent divorce was a direct result of his original overturned conviction; iii) a new trial was ordered as a result of a miscarriage of justice; iv) and, at the time of this new trial, the appellant was no longer married and the communications became admissible. Since this admissibility is only possible because there was an initial miscarriage of justice and the subsequent ordering of a new trial, to admit the evidence would perpetuate the miscarriage. [210] I do not agree. The reasoning inherent to this argument is strained, and in any event the appellant adduced no evidence before the trial judge to demonstrate a causal connection between the appellant’s first conviction and his subsequent divorce. Given the centrality of such a causal connection to the appellant’s reasoning on this issue, I cannot accept the argument. The trial judge did not err by refusing to exclude the communications on the basis of this unproven assumption. [211] In conclusion, the trial judge did not err in her interpretation of section 4(3) of the Canada Evidence Act , nor in refusing to exercise her discretion to exclude the communications. I would dismiss this ground of appeal. VI. Did the trial judge err in dismissing the appellant’s challenge to the lawfulness of the intercepts? (1) Background [212] On July 20, 2007, the police completed DNA analysis on two cigarette butts found at the scene where Mr. Zalal’s body was discovered. The analysis confirmed that the deceased’s DNA was present on one of the cigarette butts, and that Mr. Kayem’s was on the other. This evidence led police to believe that Mr. Kayem had been present when Mr. Zalal’s body was dumped. The police then sought authorization to intercept the communications of the appellant, Mr. Kayem, and Mr. Abdul-Hussein, all of whom police believed were involved in the murder. [213] On August 9, 2007, Sergeant Bruce Pirt swore an affidavit in support of a wiretap under ss. 185 and 186 of the Criminal Code . The Information to Obtain (“ITO”) provided information on the cell phone evidence, cell tower evidence, and summaries of interviews with Mr. Khaleyi and Shadra Morales. However, not all of the interviews with Mr. Khaleyi were described. [214] The authorization was provided on August 10, 2007. Following this initial authorization, five additional wiretaps were authorized on October 12, 2007, December 21, 2007, February 15, 2008, March 18, 2008, and April 18, 2008. [215] Prior to trial, the Crown sought to introduce transcripts and recordings of 104 private communications that had been intercepted by way of the six wiretap authorizations. [216] The appellant brought an application for an order: i) declaring the authorizations invalid; ii) declaring that the communications had been intercepted in violation of the appellant’s rights under s. 8 of the Charter ; and iii) excluding any direct or derivative evidence obtained as result of the authorizations pursuant to s. 24(2) of the Charter . [217] Among other things, the appellant argued that the wiretap authorizations were invalid on the basis that: i) the affiant, Sergeant Pirt, did not make full, frank, and fair disclosure in the ITO for the first authorization, and the following authorizations were therefore tainted. According to the appellant, if the issuing justice had been aware of certain inconsistencies in the evidence of Mr. Khaleyi, the initial authorization would never have been issued; and ii) the requirement of investigative necessity had not been established, as other reasonable alternative methods of investigation existed, including searching for the murder weapon and searching a possible location of the shooting. As the intercepts were unlawful, the appellant argued that his s. 8 Charter rights had been violated and the evidence should be excluded under s. 24(2). [218] In response, the Crown argued that, while Sergeant Pirt had failed to include some details in the ITO, he was not expected to include every detail. And, even if the information had been included, it would not have resulted in the authorizations being denied. [219] The trial judge ruled that the two conditions precedent to granting a wiretap authorization under s. 186(1) of the Criminal Code were met. Our court has referred to these conditions precedent as the “probable cause” and “investigative necessity” requirements: Nero , at para. 114. [220] With respect to the probable cause requirement, the trial judge found that it was met given the evidence that a crime had been committed and that granting the interception would afford evidence of the offence. In reaching this conclusion, the trial judge observed that the affiant had not been cross examined and therefore had no opportunity to correct errors or address questions relating to the credibility of Mr. Khaleyi or Ms. Morales. [221] While the trial judge acknowledged that the affiant made some errors, she concluded there was no basis to excise anything in the ITO or to find that he was intentionally or grossly negligent. [222] The trial judge also found that the investigative necessity requirement was met. She found that, while it was possible that the reasonable alternative methods of investigation proposed by the appellant may have yielded some useful evidence, “it was unlikely or unrealistic that those searches would solve the murder”. The purpose of the wiretaps was to develop a viable prosecution of the persons believed to have murdered Mr. Zalal. While other techniques would continue, the police were forced to resort to other techniques, such as the wiretaps, to develop a “proper foundation for any effective prosecution of the murder”. The authorizing justice therefore had a sufficient basis to grant the initial authorization. The trial judge concluded that there was no breach of the appellant’s s. 8 rights. (2) Arguments on Appeal [223] The appellant argues that the authorization should have been set aside on two bases. [224] First, the affiant did not make full, frank, and fair disclosure regarding the substance of Mr. Khaleyi’s various police interviews. The affiant’s summary of the witness’ statements were inaccurate and minimized the inconsistencies in his account. The appellant references R. v. Booth , 2019 ONCA 970, at para. 56, to argue that the trial judge should have recognized the obligation on the affiant to include all information that challenges the reliability and credibility of the evidence used to support the application. The affiant’s errors were not minor or technical and they deprived the authorizing justice of the opportunity to properly address the witness’ evidence. [225] Second, the trial judge erred in finding that the ITO satisfied the requirement for investigative necessity. Before seeking wiretap authorization, the police should have investigated the information provided by Mr. Khaleyi regarding the location of the murder and the location of the murder weapon. The ITO failed to explain why these leads were not followed up on. If the police had been able to locate the murder weapon or the location of the murder, they may have been able to find evidence that could have advanced the case. These were reasonable alternative options that should have been pursued. The appellant further submits that the trial judge erred in finding that he had to show that these methods were likely to solve the murder; they only needed to be likely to advance the investigation. [226] The appellant also argues that, if this court holds that the appellant’s statements to the police were not voluntary, the corresponding portions of the ITO should be excised and a reassessment should be undertaken. [227] Given these errors, the appellant argues that his s. 8 rights were infringed and the evidence should be excluded pursuant to s. 24(2) of the Charter . The affiant’s conduct was not in good faith and the state conduct was serious. The impact on the appellant’s privacy interests was extreme. Both factors favour exclusion. [228] The respondent submits that the trial judge did not commit any error and that this ground of appeal should be dismissed. (3) Governing Principles [229] The legal basis for the issuance of a wiretap authorization is set out in Section 186(1) of the Criminal Code . It states the following: An authorization under this section may be given if the judge to whom the application is made is satisfied a) that it would be in the best interests of the administration of justice to do so; and b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. [230] This section was recently considered in Nero , where Watt J.A. explained that these two sections can be described as the “probable cause” (s. 186(1)(a)) and “investigative necessity” (s. 186(1)(b)) requirements: at para. 114. [231] Watt J.A. first described the “probable cause” requirement, at paras. 115- 117: The probable cause requirement demands that the authorizing judge be satisfied by the supportive affidavit that there are reasonable and probable grounds to believe that : i. a specified crime , and “offence” as defined in s. 183(1) of the Criminal Code , has been or is being committed ; and ii. the interception of the private communication sought will afford evidence of the, or an, offence for which authorization is sought. The probable cause requirement and the capacity of the contents of the supportive affidavit to satisfy it involve a commonsense approach that takes into account the nature of the subject-matter investigators seek to acquire: future communications, not yet in existence, perhaps not even in contemplation at the time the authorization is sought or granted. These communications may never take place. But if they do, the likelihood of anything said affording evidence of a listed offence is enhanced by their probable participation in that offence. It is in that sense that interception of what they say will afford evidence of the offences. It is also important to keep in mind that the affidavit is required to establish a reasonably grounded belief in the commission of the offence and the collection of evidence about it, not proof beyond a reasonable doubt or a prima facie case of either . [Italics in original; underlining added; citations omitted.] [232] Watt J.A. next considered the “investigative necessity” requirement, at paras. 118-122: Under s. 186(1)(b), investigative necessity may be established where the affidavit demonstrates that other investigative procedures are unlikely to succeed . Interception of private communications is not an investigative tool of last resort . The second branch of investigative necessity is met where, practically speaking, there is no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry . Whether investigative necessity is established is informed by the investigative objectives pursued by the police. The investigative necessity requirement of s. 186(1)(b) applies to the investigation as a whole, not to each individual target. The supportive affidavit need not demonstrate investigative necessity on an individual target basis. The requirement of investigative necessity may be met where it anticipates the vicissitudes of proof in a criminal trial. An investigative purpose or objective may then be to obtain evidence confirmatory of information provided by a source whose testimony is not available through no fault of or connivance by the authorities, or is subject to special scrutiny. [Italics in original; underlining added; internal citations omitted.] [233] The test to be applied by a trial judge when reviewing an authorization is “whether the ITOs contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing justice could have concluded that the conditions precedent required to be established had been met”: Nero , at para. 70 (emphasis in original). [234] In conducting the analysis, the reviewing judge “is entitled to draw reasonable inferences from the contents of the ITO”: at para. 71. “Inaccuracies and omissions in the ITO are not, without more, fatal to the adequacy of the material to establish the necessary conditions precedent”: at para. 72. [235] On appeal, an appellate court must give deference to the “findings of fact made by the reviewing judge in [his or her] assessment of the record, as well as to [his or her] disposition of the s. 8 Charter challenge.” This court should not interfere in “the absence of an error of law, a misapprehension of material evidence or a failure to consider relevant evidence”: Nero , at para. 74. (4) The Principles Applied [236] In my view, the trial judge made no error in law or fact that that would warrant this court’s interference with her findings. She considered the relevant record and concluded that the affiant did not breach his obligation to make full, fair, and frank disclosure, and that the ITO satisfied investigative necessity. I see no errors in these conclusions. [237] First, the trial judge did not err in concluding that the affiant met his obligation to make full, fair, and frank disclosure. The trial judge specifically noted that the affiant did not fail to supply evidence that was germane to a proper assessment of Mr. Khaleyi’s credibility. The ITO set out relevant and pertinent information, such as Mr. Khaleyi’s age and criminal background, as well as his demands for financial benefits, among others. It also highlighted Mr. Khaleyi’s animosity towards the appellant. [238] While there were some inconsistencies in Mr. Khaleyi’s statements, I agree with the trial judge’s assessment of the law that the affiant is not required to include every detail. [239] Furthermore, the issuing justice did not have to assess whether all the information provided by Mr. Khaleyi was true, but only whether the ITO established “ a reasonably grounded belief in the commission of the offence and the collection of evidence about it” (emphasis added): Nero , at para. 117. [240] I also agree with the trial judge that any errors in the ITO were not fatal. The trial judge made specific findings that errors within the affidavit were not intentional or the result of gross negligence. This finding is entitled to deference. Reviewing justices are not to microscopically review the ITO for errors. Instead, they must determine whether the issuing judge could have been satisfied that the information in the affidavit made out a reasonably grounded belief in the prerequisites for issuance. The trial judge did not err in her conclusion on this issue. [241] The trial judge was also entitled to conclude that the investigative necessity requirement had been met. Wiretap authorizations are not a measure of last resort. They can also be used when other investigative methods appear to have little chance of success. As noted in Nero , the requirement is to be interpreted in a practical, common sense fashion with due regard to the nature of the investigation and the objectives of the investigators: at para. 110. In this case, the trial judge correctly assessed what would be required to solve the murder and determined that, while other methods may assist, the wiretap was necessary to gather evidence demonstrating who was responsible for Mr. Zalal’s murder. [242] This ground of appeal is dismissed. Accordingly, it is not necessary for me to analyze s. 24(2) of the Charter . CONCLUSION [243] I would dismiss the appeal. [244] Given this outcome, it is unnecessary for me to consider the respondent’s ground of appeal with respect to the exclusion of the prior testimony and sworn police statement of Mr. Abdul-Hussein. Released: “M.T.” February 5, 2021 “M. Tulloch J.A.” “I agree. L.B. Roberts J.A.” “I agree. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ali, 2021 ONCA 362 DATE: 20210528 DOCKET: C63315 Doherty, Watt and van Rensburg JJ.A. BETWEEN Her Majesty the Queen Respondent and Cindy Ali Appellant James Lockyer and Jessica Zita, for the appellant Jamie Klukach and Kevin Rawluk, for the respondent Heard: February 24 and 25, 2021 by video conference On appeal from the conviction on a charge of first-degree murder entered by Justice T. Ducharme of the Superior Court of Justice, sitting with a jury, dated March 6, 2016. Doherty J.A.: I overview [1] The appellant was, by all accounts, a loving and devoted mother to her 16-year old, profoundly disabled daughter, Cynara. The Crown alleged the appellant decided to murder her daughter and make it appear as though she had died during a home invasion. The Crown alleged, that in furtherance of this plan, the appellant suffocated Cynara with a pillow and then called 9-1-1, reporting a home invasion and indicating her daughter was unconscious. According to the Crown’s theory, before the first responders arrived, and probably before she killed Cynara, the appellant went through her home attempting to make it look as though there had been a home invasion. When the first responders arrived, the appellant pretended to be disoriented and in shock. She described the home invasion to the police in some detail over the next several hours. [2] The first responders found Cynara on the couch. She was not breathing and did not have a pulse. The paramedics were able to restore Cynara’s pulse and rushed her to the hospital. Sadly, Cynara was never able to breathe on her own. On medical advice, her parents removed her from life support and she died the next day. [3] The police initially charged the appellant with manslaughter, but later substituted a first degree murder charge. [4] At her trial, the appellant testified and told basically the same story she had been telling since she made the 9-1-1 call. Two robbers had entered her home, apparently looking for a package. One of the robbers rummaged through her home. The other remained with Cynara. They left when they decided they were at the wrong address. By the time they left, Cynara was unconscious. The defence argued the robber who stayed with Cynara may have suffocated her with a pillow, or she may have become upset during the robbery, suffered a seizure, choked and aspirated food into her lungs, causing respiratory distress, leading to cardiac arrest. [5] The defence called evidence of the appellant’s good character. Everyone agreed the appellant was a devoted and loving mother, particularly to Cynara. The defence contended there was no evidence of any motive for the appellant to murder her daughter. [6] The evidence at trial focused on the appellant’s claim she and her daughter had been the victims of a home invasion. It was central to the Crown’s case that the appellant had fabricated an elaborate home invasion narrative. The Crown argued, if the jury was satisfied the appellant fabricated the home invasion story, her fabrication provided strong evidence, not only that the appellant had murdered Cynara, but that the murder was planned and deliberate. It was equally central to the defence case that the home invasion had occurred. The defence argued there was other evidence supporting the appellant’s testimony there had been a home invasion and that any doubt about whether the home invasion had occurred required the appellant’s acquittal. [7] The jury convicted the appellant of first degree murder. [8] The appellant raises four grounds of appeal. Three allege errors in the charge to the jury and one contends the conviction for first degree murder was unreasonable on the totality of the evidence. [9] I would allow the appeal. The trial judge’s instructions with respect to whether the appellant caused Cynara’s death, combined with his instructions on the inference available if the jury found the appellant had fabricated the home invasion story, effectively invited the jury to convict the appellant of at least second degree murder if the jury was satisfied she had fabricated the home invasion story. For reasons I will set out below, this instruction amounts to reversible misdirection. II the evidence A. THE ALI FAMILY [10] In February 2011, the appellant, her husband, Allan, and their four daughters lived in a townhouse in Scarborough. Cynara was the second oldest daughter. They were a happy, busy family. Allan had a good job, the oldest daughter worked, and the two youngest, who were twins, attended high school. Their lives centered around church and family. The appellant is a deeply religious person. Her faith includes a strong belief in the sanctity of life. [11] Cynara was born with severe cerebral palsy. She could not talk, walk, feed herself, shake her head, or change her position without assistance. Cynara communicated by laughing or kicking. Different laughing sounds conveyed different meanings to Cynara’s family. All of the family members, particularly the appellant, were very attentive to Cynara’s needs. [12] Cynara’s life was a difficult one from the day she was born. Her doctors did not expect her to live past the age of three. Cynara was prone to seizures and pneumonia. She had trouble swallowing her liquid food. [13] The appellant was Cynara’s primary caregiver. She devoted herself to Cynara, making sure her daily needs were met and that Cynara participated in family activities to the extent possible. The appellant’s pastor, who had known her for over 10 years, testified the appellant’s care of Cynara set an example for others. She described her as “an amazing mother of her children”. [14] In her evidence, the appellant acknowledged there were days when it was difficult looking after Cynara. She insisted, however, she had no complaints and loved caring for her daughter. Other family members also described the importance of Cynara to the family and the joy she brought to all of them. [15] The Ali family first applied for permanent residence status in Canada in 2003. Cynara was declared inadmissible on health grounds. The family was able to obtain a waiver of Cynara’s inadmissibility in September 2010 by presenting a financial plan that satisfied the authorities Cynara’s care would not impose a burden on the Canadian health care system. The plan required the family to assume any financial burden resulting from Cynara’s health problems. The family became permanent residents in January 2011. [16] Most of Cynara’s medical needs were covered by a combination of OHIP and the health insurance Mr. Ali had through his employer. That insurance covered the costs of devices like wheelchairs, and some medications. There was no evidence about the amount, actual or estimated, of any uncovered medical costs associated with Cynara’s past or future care. The evidence indicated those costs had not been significant up to the time of Cynara’s death. She did not require specialized care or housing, the family did not employ outside help and, all things considered, Cynara was relatively healthy. [17] The Ali family finances were unremarkable for a family living in Toronto with four children. They had a mortgage on the family home and credit card debt that had increased somewhat after the Christmas season. That debt was paid down in February. There was no evidence Mr. Ali or the appellant felt any unusual financial pressure as of February 2011. B. The Events of February 19, 2011 (i) The appellant’s version of events [18] February 19, 2011 was the Saturday of a long weekend. Cynara had suffered three seizures on the Friday night. After the seizures subsided, the appellant medicated Cynara, bathed her and lay with her until she fell asleep. The appellant recalled seeing some blood around Cynara’s mouth. [19] On the Saturday, the family members all had different things to do. The appellant planned to stay home with Cynara. As she did every day, the appellant gave Cynara a bath, brushed her teeth, dressed her and took her downstairs for breakfast. The appellant gave Cynara her breakfast in the living room. The appellant went to the kitchen to do dishes, leaving Cynara on the couch. Cynara was “fussy”, so the appellant returned to the living room and sat on the couch with Cynara’s head resting on a pillow on the appellant’s lap. By 10:30 a.m., all of the other family members had left. The appellant expected her husband home around 1:00 p.m. The appellant testified, that after everyone left the townhouse, she sat on the couch with Cynara. She spoke briefly on the telephone with her sister at 10:47 a.m. [20] A short time after the appellant had spoken with her sister, the front doorbell rang. The appellant opened the door a little bit to see who was there. Two masked men burst through the door. The appellant described them as “very dark skinned, 6’ to 6’2, wearing black balaclavas, gloves and black coats over suits with white shirts and a tie”. [21] The appellant tried to get to the phone, but one of the intruders pulled it off the wall. The appellant threw two or three knives from the kitchen counter at one of the intruders. He pointed a gun at her and, in a heavy Jamaican accent, demanded to know where “the package” was. He asked the question several times.  The appellant repeatedly told him she had no idea what he was talking about. [22] The man with the gun grabbed the appellant and dragged her upstairs. The other man remained with Cynara. Once they were upstairs, the intruder looked through various cupboards and drawers. The appellant could hear Cynara making a laughing noise. She panicked and tried to get to her daughter downstairs. The man with the gun caught her by the nightgown and pulled her back into one of the bedrooms. He continued to search for the package. The appellant could still hear Cynara’s laugh, but it now sounded like she was in distress. The appellant tried again to get down the stairs. This time she got past the robber and made her way back down to the living room. She tripped on the rug. The man who had chased the appellant down the stairs threw something at her and kicked her as she lay on the floor. [23] The appellant saw the other robber standing in the living room holding a pillow to his chest. Cynara “looked like her normal self”. The robber with the gun pulled the appellant down to the basement. He continued his search, going through a bedroom and Mr. Ali’s home office. [24] The appellant again tried to escape. She pushed a chair toward the gunman and ran upstairs. She saw the other robber still holding the pillow in his hand, but now her daughter was very pale, quiet and not moving. [25] The robber with the gun followed the appellant up the stairs. He told the other robber they were in the wrong house. They left the appellant’s townhouse through the basement door, which led to the underground parking area that serviced the housing complex. (ii) The arrival of the first responders [26] The appellant called 9-1-1 at 11:37 a.m. She was hysterical, indicating someone had broken into her home and her “baby” was not breathing. The jury heard the recording of the 9-1-1 call. In the call, the appellant appears to be very upset. Near the end of the recording of the 9-1-1 call, the first responders can be heard arriving at the scene. One paramedic quickly examined the appellant and then turned his attention to Cynara. A firefighter, who arrived with the paramedics, and who was aware the appellant had indicated in the 9-1-1 call that robbers had entered her home, could be heard on the 9-1-1 call saying to the appellant: Get off the floor! There are no footprints in the front, don’t bullshit me. [27] That firefighter testified there was an inch or two of fresh snow on the steps leading into the appellant’s townhouse. There were no footprints in that snow. He also indicated there were no signs of snow or water inside the appellant’s front door. The defence challenged the firefighter’s testimony, arguing the evidence showed there was no appreciable snow accumulation at the relevant time. [28] When the first responders arrived, the appellant was lying on the floor. She was unresponsive and appeared afraid. A quick physical examination revealed no injuries. [29] The first responders saw Cynara lying on the couch with one hand hanging off the side of the couch. She had a pillow on her head and a towel lying across her neck. Cynara had no vital signs. The paramedics worked on her for about 24 minutes and managed to restore her pulse. They rushed her to the hospital. (iii) The Appellant’s Statements to the Police [30] The appellant spoke with several police officers between the arrival of the first responders at her home and shortly after midnight, about 13 hours later. Her various descriptions of the relevant events were largely consistent with each other and the evidence she gave at trial. [31] The Crown did, however, rely on inconsistencies between what Officer Minhas testified the appellant said to him when they were driving to the hospital in the ambulance, and the appellant’s statements to other police officers, and her testimony. Two of those inconsistencies were arguably significant. [32] Officer Minhas testified the appellant told him Cynara was sitting on the loveseat when the robbers arrived. He also testified the appellant told him one of the robbers put a pillow over Cynara’s face. In her other statements, and in her testimony, the appellant placed Cynara on the couch and described the robber as holding a pillow. [33] The defence challenged the reliability of Officer Minhas’ evidence, contending that he was relying on incomplete notes to refresh his recollection. (iv) The neighbour’s evidence [34] Ms. Sureerat Chariyaudom lived in the same housing complex as the appellant. They knew each other and were friendly. On the Saturday of the homicide, at about 11:20 a.m., Ms. Chariyaudom was driving out of the underground parking at the housing complex. She saw two men standing inside the garage by the garage door. They were about 6 feet tall and “very, very dark skinned”. They were dressed in dark clothing and wearing dark toques. The garage door opened and Ms. Chariyaudom drove out. From where the two men were standing, they could have walked out of the garage door before it closed and had ready and quick access to the front door of the appellant’s townhouse. [35] Ms. Chariyaudom gave a statement to the police the next day. There is no evidence she could have colluded with the appellant before making that statement. [36] Ms. Chariyaudom was shown a series of photographs of different styled coats. She picked the one with a hood as looking the most similar to the coats worn by the two men she saw in the garage. The appellant described the coats worn by the robbers as long, black coats made of “sort of a wool material”. [37] At trial, counsel for the appellant argued that the two men Ms. Chariyaudom described were the two persons who entered the appellant’s home in search of the package. Counsel pointed to aspects of Ms. Chariyaudom’s description of the two men, which were consistent with the appellant’s description of the robbers. Counsel also relied on the timing of Ms. Chariyaudom’s observations of the two men, which was consistent with the appellant’s evidence as to when the robbery occurred. The Crown argued there were significant differences in the descriptions provided by the appellant and Ms. Chariyaudom, particularly in respect of their descriptions of the coats worn by the two men. (v) The letter [38] Mr. Ali testified he found a letter in his mailbox on May 16, 2011, about two months after the homicide. On its face, the letter purported to have been written by the robbers. The letter provided details of the robbery that were consistent with the details in the appellant’s statements to the police. In the letter, the “robbers” indicated they had gone to the appellant’s home on the orders of their “boss” to pick up a package, but it turned out they had gone to the wrong home. [39] At trial, the Crown argued the letter had been written by, or at the direction of, the appellant, as yet another attempt to convince the authorities she had been the victim of a home invasion. The Crown argued the letter referred to details found in the appellant’s statement to the police, which only she could know she had given to the police. The Crown also argued that a part of the letter, which purported to offer an explanation for the absence of footprints at the appellant’s front door, could only have been authored by someone who appreciated the significance of the evidence concerning the presence or absence of footprints in the snow on the stairs. [40] At trial, the defence did not suggest the letter had actually been written by the robbers. The appellant testified she did not send the letter and did not know who had sent the letter. It made no sense to her. She wondered whether the police had sent the letter in an effort to prompt some kind of response from her. They had used other stimulation techniques while intercepting her private communications. The appellant also indicated there were many others who knew the details of her description of the events and the significance of the presence or absence of footprints at the front door. The defence argued the letter was written by someone other than the appellant, perhaps a well-meaning, but badly misguided friend. C. Cause of Death [41] Cynara’s heart stopped for about 30 minutes, causing a fatal loss of blood and oxygen to the brain. The experts agreed there were three possible causes of the cardiac arrest: · manual suffocation; · aspiration pneumonia; or · sudden unexpected death in epilepsy (SUDEP). [1] [42] Cynara had a long history of seizures and aspiration pneumonia. Aspiration pneumonia occurs when food is inhaled into the lungs. This may occur during choking or vomiting brought on by seizures. The appellant knew Cynara’s seizures were dangerous and potentially life threatening. The autopsy revealed pneumonia and food particles in Cynara’s lungs. [43] The pathologist who performed the autopsy testified for the Crown at trial. She indicated Cynara could have suffered a seizure and during that seizure aspirated food into her lungs. Food in her lungs could have led her to develop pneumonia. Pneumonia can lead to respiratory arrest and death. The pathologist further testified the process leading to pneumonia and ultimately to respiratory arrest could have been going on for hours or even a few days before Cynara lost consciousness. The pathologist indicated, however, that had the pneumonia been developing for some time, she would have expected Cynara’s family to have noticed signs of illness. On their evidence, Cynara had not exhibited any such signs. [44] The pathologist identified a second possible scenario that could have led to Cynara’s death. The pathologist testified that Cynara may have suffered a seizure leading to food aspiration within minutes or seconds of Cynara going into respiratory distress. On this scenario, the food aspirate would have gone into Cynara’s trachea, blocked her airway and eventually led to cardiac arrest. The pneumonia found in her lungs at the autopsy would have developed after Cynara’s resuscitation. The pathologist agreed the absence of any indication Cynara had vomited immediately before being attended by the first responders made this scenario less likely than it would have been had evidence of vomiting been found. [45] The defence expert was in substantial agreement with the pathologist’s evidence. In his view, aspiration pneumonia, in combination with the seizure disorder, was the more likely cause of death. [46] Both experts agreed manual suffocation was also a possible cause of death. There were no medical indicators to support a finding of manual suffocation. Nor, however, according to both experts, would one necessarily expect to find any such indicators had Cynara, who was unable to offer any resistance, been suffocated using a soft object like a pillow. The experts also agreed medical findings provided only part of the picture when it came to determining cause of death. [47] There was some physical evidence supporting the Crown’s suffocation theory. Traces of Cynara’s blood and saliva were found on the pillowcase of the pillow the investigators took from Cynara’s head. There was, however, evidence Cynara’s mouth had been bleeding the night before. In addition, traces of blood were found on the towel around Cynara’s neck. The Crown relied on the evidence that the appellant put a clean towel around Cynara’s neck every morning. The Crown argued the blood must have gotten on the towel that morning. There was, however, some evidence that a bloodstain could survive washing. D. did the appellant fabricate the home invasion story? [48] The veracity of the appellant’s home invasion narrative became the focus of the trial. The defence pointed to physical evidence in the house supporting the appellant’s version of events. The defence relied on evidence another unit in the townhouse complex had the same number as the appellant’s and that the two units had been confused in the past. The defence also relied on the evidence of the neighbour, Ms. Chariyaudom. [49] The Crown argued that the condition of the home supported the inference the appellant had made a somewhat ineffective attempt, before or after she killed Cynara, to make the house appear as though there had been a home invasion. The Crown also relied on the evidence of the absence of any footprints at the front door when the first responders arrived, and the evidence of the fabricated “robbers’’” letter provided to the police by Mr. Ali. [50] I do not propose to review the evidence in support of the competing arguments in detail. It is fair to say there was evidence supporting the arguments going both ways and counsel vigorously pressed those arguments before the jury. III the grounds of appeal A. Did the instruction on whether the appellant caused Cynara’s death, combined with the instruction on the inferences available should the jury find the appellant fabricated the home invasion story, result in misdirection? [51] Jury instructions are assessed from a functional perspective in the context of the evidence and issues in the specific case: R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 14; R. v. Figliola , 2018 ONCA 578, at para. 11; R. v. Largie , 2010, ONCA, 548, at para. 126. The error alleged by the appellant in this ground of appeal is the product of a combination of instructions given with respect to cause of death and after-the-fact conduct considered in the specific evidentiary context of this case. It is necessary to begin with some background before examining the actual instructions. (i) The parties’ closing arguments [52] The positions advanced by the Crown and the appellant before the jury were straightforward and diametrically opposed. The Crown argued the appellant had decided to kill her daughter and, in furtherance of that purpose, fashioned and implemented a false home invasion narrative intended to cover up the murder. [53] The Crown submitted the appellant had suffocated Cynara with the pillow found on her head by the first responders. The Crown relied heavily on evidence which the Crown said demonstrated the appellant had fabricated the detailed home invasion story. The fabrication included: · the staging of the scene in the house to make it appear as though there had been a home invasion; · making false statements to the 9-1-1 operator and the first responders alleging a robbery; · feigning physical injury and disorientation upon the arrival of the first responders; · giving a detailed and false narrative of the home invasion to the police on various occasions during questioning on the day of the homicide; and · providing a letter to the authorities supposedly written by the robbers confirming material parts of the appellant’s home invasion story. [54] The Crown argued that the evidence showing the appellant had fabricated the home invasion story was relevant to three crucial issues at trial: · Did the appellant kill Cynara? · Was the killing a murder? · Was the murder planned and deliberate? [2] [55] Not surprisingly, given the appellant’s evidence, counsel advanced only one defence in his submissions to the jury. He argued, just as the appellant had insisted from the time she called 9-1-1 until she testified, Cynara had died during a home invasion and the appellant had nothing to do with her death. Counsel argued, while the exact cause of Cynara’s respiratory distress and subsequent cardiac arrest could not be determined with certainty, it was more likely her death was connected to the consequences of a seizure than to suffocation. The defence pointed to the evidence supporting the appellant’s evidence about the home invasion, the strong character evidence, and the absence of any evidence lending an air of reality to the suggestion the appellant had a motive to kill Cynara. (ii) The pre-charge discussions [56] In pre-charge discussions, the Crown argued that a jury could convict the appellant only if satisfied beyond a reasonable doubt that the appellant had smothered Cynara. Crown counsel argued there was no air of reality to the contention the appellant had caused Cynara’s death by some unlawful act other than smothering her. Counsel submitted, if the jury had a doubt whether the appellant smothered Cynara, the jury should be told to acquit the appellant. If, however, the jury was satisfied beyond a reasonable doubt the appellant smothered Cynara, the Crown argued a conviction on either first or second degree murder were the only available verdicts. Crown counsel argued manslaughter should not be left with the jury. [57] During pretrial discussions, defence counsel acknowledged the defence would go to the jury exclusively on the basis that Cynara had gone into cardiac arrest during the home invasion and the appellant had nothing to do with Cynara’s death. However, the defence maintained the evidence supported an alternative possibility that the trial judge was obliged to leave with the jury. The defence argued the jury could conclude Cynara was not suffocated but that her death was seizure-related. They could further conclude that Cynara had died as a consequence of the appellant’s failure to take the steps necessary to assist Cynara after she suffered a seizure. The defence submitted, that on this view of the evidence, the appellant could be found to have caused Cynara’s death by a culpable act (criminal negligence or failure to provide necessaries), other than suffocation. [58] The defence further argued that the jury could conclude the appellant had fabricated the home invasion story to hide her failure to take the proper steps to protect Cynara after she had a seizure. On this view of the evidence, the jury would conclude the appellant had caused Cynara’s death by an unlawful act, but could well have a reasonable doubt as to whether she had the mens rea for murder. If that doubt existed, manslaughter was the proper verdict. [59] The defence contended leaving suffocation with the jury as the only possible culpable act would cause substantial prejudice to the appellant. Counsel submitted, if the jury was told suffocation was the only potential culpable act, and if the jury concluded the appellant fabricated the home invasion story, the jury would move directly from a finding the appellant had fabricated the home invasion story to a finding she had suffocated Cynara. That finding would, in turn, lead inevitably to a murder conviction. Counsel said: And this is exactly the type of situation that the defence fears the jury will be put in where they could have a reasonable doubt on the smothering, but not on the post offence conduct and thus, be left only with coming to the conclusion that she murdered, even if they would have had otherwise a doubt about the intent to kill. [60] The trial judge, in large measure, accepted the Crown’s position, stating: To me, this case has always been about whether she smothered Cynara with a pillow. [61] The trial judge determined that, in the absence of evidence a prompter medical response could have saved Cynara’s life, there was no evidentiary basis for a finding of liability based on criminal negligence or a failure to provide necessities. He said: There is no medical evidence before me that talks about the importance of a prompt response to a seizure situation. … Neither pathologists gave any evidence with respect to what might have – what could have been done to save Cynara’s life; what difference it made that some prompter response was made – was not made, and, in my view the jury would be speculating to come to the conclusion that Cynara died in those circumstances and that somehow Ms. Ali’s intentional failure to respond to her daughter’s situation of crisis was an unlawful act that led to her death resulting in a manslaughter charge. [62] Ultimately, the trial judge decided he would leave manslaughter with the jury, but only on the basis that the appellant had smothered Cynara with a pillow but had done so without the intent required for murder. Everyone thought it highly unlikely the jury would return a verdict of manslaughter if it was satisfied the appellant had suffocated Cynara. (iii) The charge to the jury [63] In keeping with his ruling, the trial judge told the jury that, to prove the appellant had caused Cynara’s death, the Crown had to prove beyond a reasonable doubt the appellant smothered Cynara. He told the jury: Did Cindy Ali cause Cynara Ali’s death? And in this case the central question is really ‘Did Cindy Ali smother Cynara with the pillow?’ This is the allegation Cindy Ali faces. If you find that Cynara Ali died for any other reason, or if you have any reasonable doubt about that, you must find Cindy Ali not guilty. [64] The trial judge proceeded to outline evidence relevant to whether the appellant had smothered Cynara. That evidence included the evidence of the alleged fabrication of the home invasion story. The trial judge referred to this as “post-offence conduct”. [3] He told the jury: Consider the post-offence conduct, especially if you conclude that Cindy Ali fabricated stories and staged the crime scene because she was conscious of having killed Cynara. [65] Considered in isolation, the trial judge’s instructions would seem to benefit the appellant in that the jury was told to acquit if it had a doubt as to whether the appellant smothered Cynara. Certainly, the medical evidence indicated smothering was not the only possible cause of death. [66] The effect of the trial judge’s instructions on cause of death must, however, be considered along with his instructions relating to the use the jury could make of the appellant’s alleged fabrication of the home invasion story. The trial judge instructed the jury at length on the evidence the Crown alleged showed the appellant had fabricated the home invasion story. The detailed instructions reflected the importance that evidence took on in the course of the trial. [67] In his instructions, the trial judge explained to the jury that, if it concluded the appellant fabricated the home invasion story, that fabrication may or may not point to the appellant’s involvement in Cynara’s death. The trial judge cautioned the jury to consider explanations other than that of the appellant’s involvement in Cynara’s death. [68] After reviewing the evidence relevant to the Crown’s claim, the appellant fabricated the home invasion story, the trial judge came back to the applicable law. He told the jury: Now for all of this post-offence conduct, if you find that Cindy Ali did not do or say what she is alleged to have done or said after the offence was committed, you must not consider the evidence in reaching, or helping you reach your verdict. On the other hand, if you find that Cindy Ali actually did or said what she is alleged to have done or said after the offence was committed, you must consider next whether this was because Cindy Ali committed the offence charged or whether it was for some other reason . If you find that Cindy Ali actually did or said what she is alleged to have done or said after the offence was committed, you must be careful not to immediately conclude she did or said so because she was conscious of having committed the offence charged. To decide the reason for what Cindy Ali did or said afterwards, you should consider all of the evidence, of particular importance is evidence that offers another explanation for this conduct, or these statements. But while you should consider the possibility of other explanations for this conduct, you must not speculate. Any other explanations must be founded in the evidence. I do not see any other evidence on the evidence before you, or any other explanations on the evidence before you, but that is for you to decide . [Emphasis added.] [69] The trial judge repeated a similar instruction aimed specifically at the appellant’s statements to the police. He told the jury, that if they were satisfied those statements were fabricated, they could conclude she fabricated the events because “she was conscious that she had killed Cynara.” He instructed the jury they should also consider other possible explanations. [70] After a mid-charge discussion with counsel, the trial judge returned to the evidence relating to the alleged fabrication of the home invasion. He correctly told the jury the evidence may or may not assist them, depending on the inference they drew from the evidence. He reminded them to consider that evidence together with the rest of the evidence. He went on to instruct the jury: I am cautioning you here, as I did to a certain degree already, about putting too much emphasis on the post-offence conduct. You have to consider it in the context of all of the evidence in the case. Now circumstantial evidence, evidence of after-the-fact conduct, has only an indirect bearing on the issue of Cindy Ali’s guilt, you must be careful about inferring that Cindy Ali is guilty on the basis of evidence of after-the-fact conduct because there might be other explanations for that conduct something unconnected with participation in the offence charged. You may use this evidence of after-the-fact conduct, along with other evidence, to support an inference of guilt only if you have rejected any other explanations for the conduct. I have already suggested to you that on the evidence you have heard I do not see any other explanations for the post-offence conduct if you find that she did these things, but that is entirely for you to determine . [Emphasis added.] [71] The trial judge’s instruction that if the jury concluded the appellant had fabricated the home invasion story, it could use that fabrication as evidence the appellant “committed the offence”, or “was conscious she killed Cynara”, or as evidence she “participated in the offence charged” must be read with the trial judge’s instruction that the only way the jury could find the appellant “committed the offence”, or “participated in the offence” was if she had smothered Cynara. By limiting the appellant’s potential culpable act to suffocation and telling the jury it could infer the appellant committed the offence if the jury concluded she fabricated the home invasion story, the trial judge’s instructions allowed the jury to reason as follows: · the appellant fabricated the home invasion story; · there was no innocent explanation for that fabrication, (bearing in mind the trial judge twice told the jury he could not see any possible innocent explanation on the evidence); · the appellant fabricated the home invasion story to hide her “participation” in Cynara’s death; · on the trial judge’s instructions, the appellant could only have participated in Cynara’s death by smothering her; · the appellant smothered Cynara. [72] On this reasoning, the jury could have concluded the appellant smothered Cynara without ever coming to grips with the expert evidence as to the cause of Cynara’s death. That evidence, while certainly not determinative, was important and suggested other possible causes of death, including aspiration associated with seizures. [73] Furthermore, on the same reasoning, just as counsel for the appellant suggested in the pre-charge discussions, a finding by the jury the appellant fabricated the home invasion story would lead almost inevitably to the conclusion the appellant smothered Cynara and thereby committed at least second degree murder. That finding would also go a long way to the determination the murder was planned and deliberate. On the path cut by the trial judge’s instructions, the jury’s verdict of guilty of first degree murder could have been based almost entirely on finding the appellant fabricated the home invasion story. [74] In my view, the jury instructions wrongly narrowed the proper scope of the jury’s deliberations. It is essential that all defences and verdicts reasonably available on the evidence be left with the jury for its consideration. Similarly, any defence theory realistically available on the totality of the evidence should be left with the jury: R. v. Grewal , 2019 ONCA 630, at paras. 36-37; R. v. Ronald , 2019 ONCA 971, at paras. 43-48. [75] I agree with the submission made by defence counsel at trial. On this evidence, it was reasonably open to the jury to conclude, or at least have a doubt as to whether Cynara was suffocated. The jury could have determined, or at least had a doubt, that Cynara died as a result of a respiratory failure brought on by the aspiration of food during a seizure leading to Cynara’s unconsciousness and eventual cardiac arrest. In fact, the Crown accepted that respiratory distress brought on by the aspiration of food during a seizure was a possible cause of death. The Crown took the position, however, that if the death was seizure-related, the appellant should be acquitted. [76] I also think it was open to the jury to conclude that the appellant failed to properly respond to Cynara’s seizure. Cynara was prone to seizures and the appellant knew those seizures could lead to sequelae, endangering Cynara’s life. The appellant was well aware of the dangers and the steps required to protect Cynara once she began to experience a seizure. Just the night before, the appellant had responded appropriately when Cynara suffered a series of seizures. Cynara did not lose consciousness, and did not stop breathing. [77] In my view, it was open to the jury to conclude the appellant, who was responsible for Cynara’s wellbeing, failed to take the steps necessary to protect Cynara once she began to experience a seizure. The jury could have concluded the appellant’s failure to respond to Cynara’s seizure, as she knew she was required to do, caused Cynara’s condition to worsen to the point where she lost consciousness and stopped breathing. On those findings, it was open to the jury to conclude the appellant caused Cynara’s death by her failure to respond appropriately to the seizure suffered by Cynara. That failure could constitute criminal negligence under s. 219 of the Criminal Code , or the failure to provide necessaries under s. 215. Either characterization would render the appellant’s conduct culpable homicide for the purposes of s. 222 of the Criminal Code . [78] If the jury concluded the appellant’s failure to take the appropriate steps to help Cynara after she had a seizure caused Cynara’s death, the jury could well have returned a verdict of guilty on the included offence of manslaughter, although a conviction for murder would still have been available, depending on the appellant’s state of mind when she failed to render the necessary care. [79] A finding by the jury that the appellant fabricated the home invasion narrative would also take on a very different significance had the jury been left with the possibility that the appellant caused Cynara’s death by failing to provide the appropriate assistance once Cynara suffered a seizure. If the jury had been left with that option, it may have concluded the home invasion narrative was fabricated by the appellant to hide her failure to do what she knew she should have done to help her daughter. That inference, while still pointing to the appellant’s culpability, could have led to a manslaughter verdict. [80] Crown counsel, in their factum, offer several submissions to support the trial judge’s instruction that the appellant could be convicted only if the jury was satisfied Cynara had been smothered to death. First, counsel submits the trial judge correctly held there was no evidence that a faster response, once Cynara lost consciousness, would have made any difference in the outcome. [81] This submission takes an unduly narrow view of the appellant’s potential liability if she failed to properly respond to Cynara’s seizure. If the appellant did not respond appropriately, the jury could conclude the appellant’s failure to do so caused Cynara’s condition to worsen to the point where she lost consciousness and stopped breathing. On that view, the appellant’s culpability lies in her failure to intervene when the seizure that ultimately led to Cynara’s death began. It is irrelevant to that basis of liability that once Cynara stopped breathing, there was no evidence that a more timely intervention could have saved her life. The appellant’s culpable conduct on this view of the case rests in her failure to respond, as she should have, from the outset of the seizure. [82] Crown counsel also argues, there is no realistic basis in the evidence for a finding of any culpable act other than smothering. Counsel submit, that of the potential causes of death put forward by the medical experts, only suffocation is consistent with an “intentional action by another person”. [83] I cannot agree with this submission. The medical experts agreed that cardiac arrest as a consequence of respiratory distress brought on by seizure-induced aspiration of food into the lungs was a possibility. The defence expert saw this as the most likely cause of death. There was uncontested evidence that Cynara regularly suffered seizures and that the aspiration of food into her lungs was associated with those seizures. In addition, the evidence showed the appellant knew seizures posed a life-threatening danger to Cynara. The appellant knew how to respond to those seizures to mitigate the risk they posed to Cynara. On all this evidence, the jury could reasonably conclude Cynara suffered a seizure and for some reason the appellant failed to take the steps she knew were necessary to protect her daughter. That failure, in light of the appellant’s obligations to Cynara, could, on an appropriate jury instruction, be viewed as an intentional culpable act causing Cynara’s death. [84] Crown counsel also make the point that the suggestion the appellant failed to take the necessary steps in respond to a seizure by Cynara flies in the face of the appellant’s own testimony and every statement she gave to the police. That is true. However, an inconsistency between the position advanced through an accused’s testimony and an alternative defence theory will not justify the refusal to leave that theory with the jury, if, on the totality of the evidence, there is an air of reality to the theory and the verdict that theory could generate: R. v. Grover , [2007] 3 S.C.R. 510, at paras. 512-13; R. v. MacLeod , 2014 NSCA 63, at paras. 121-23. [85] I accept that the appellant’s statements to the police and her testimony might well make it less likely the jury would conclude the appellant caused Cynara’s death by failing to take the necessary steps to help Cynara after she suffered a seizure. The jury could have rejected outright the appellant’s evidence without necessarily accepting the Crown’s claim Cynara was smothered. It the jury rejected both the appellant’s testimony and the theory of the Crown, it could have found the appellant caused Cynara’s death by failing to provide the necessary assistance. [86] This is also not a case in which it could be argued that the failure to put a defence theory inconsistent with the appellant’s testimony reflected a tactical decision made at trial. Defence counsel specifically asked the trial judge to instruct the jury on the possibility the appellant caused Cynara’s death by failing to take the necessary steps when Cynara suffered a seizure. The appellant takes the same position on appeal as she took at trial. [87] Finally, the Crown argues, the jury’s verdict of guilty of first degree murder renders any failure to instruct the jury on the appellant’s potential liability for an unlawful act other than smothering irrelevant to the outcome. The Crown submits, the jury’s finding the murder was planned and deliberate makes it absolutely clear the jury would have rejected any suggestion the appellant caused Cynara’s death by failing to take the necessary steps after Cynara suffered a seizure. [88] In some situations, an argument moving backwards from the verdict returned can be persuasive in demonstrating that a failure to leave a certain theory of the defence or an included offence with a jury had no effect on the verdict returned: R. v. Sarrazin , 2011 SCC 54, at paras. 30-31. Given the structure of this charge, that reasoning does not assist the Crown. [89] The jury was told if it determined the home invasion story was fabricated, it could infer the appellant “participated” in Cynara’s death. On the instructions as given, the only way the appellant could have participated in Cynara’s death was by smothering her. On the trial judge’s instructions, the jury would have only reached the question of planning and deliberation after deciding the appellant had smothered her profoundly disabled daughter with a pillow. [90] Had the jury been properly instructed, and assuming it concluded the appellant had fabricated the home invasion story, the jury may have inferred that she fabricated that story to hide her failure to properly react to the seizure suffered by Cynara. If the jury concluded the appellant’s failure to act caused Cynara’s death, I do not see how it could have concluded that a murder, based on that culpable act, was planned and deliberate. Indeed, the jury may not have been satisfied it was murder at all. The jury’s verdict of guilty on first degree murder provides no insight into what it might have done had the possibility of a culpable act other than suffocation been left with the jury. [91] In addition to wrongly narrowing the ambit of the jury’s deliberations by excluding the possibility the appellant caused Cynara’s death by a culpable act other than suffocation, the trial judge unduly restricted the jury’s consideration of what inference, if any, it should draw from a finding the appellant fabricated the home invasion narrative. [92] In his instructions, the trial judge told the jury more than once that, if it determined the appellant fabricated the home invasion story, it must consider other possible explanations for the fabrication, before inferring that the appellant fabricated the story because she had killed Cynara. The trial judge cautioned the jury against jumping too quickly to the conclusion the home invasion story was fabricated to cover up the killing. He reminded the jury they could draw that inference only if they first “rejected any other explanations”. [93] All of these instructions were legally correct and necessary in a case like this one, when so much turned on what the jury made of the evidence said to demonstrate the appellant had fabricated the home invasion story: see R. v. Calnen , 2019 SCC 6, per Martin J., at paras. 116-17 (in dissent but not on this point); R. v. White , 2011 SCC 13, at para. 23. [94] The trial judge also instructed the jury, however, that any alternative explanation for the fabrication of the home invasion story must be based on the evidence. He said: But while you should consider the possibility of other explanations for this conduct, you must not speculate. Any other explanations must be founded in the evidence. [95] The trial judge reinforced this instruction by twice offering the opinion he could see no other explanation in the evidence should the jury conclude the appellant fabricated the home invasion story. [96] The Crown relied on evidence, which it claimed showed the appellant had fabricated the home invasion, as circumstantial evidence of the appellant’s guilt. In Calnen , Martin J., at para. 112, drawing on the judgment of Watt J.A. in R. v. Smith , 2016 ONCA 25, at para. 77, aptly described the jury’s function when considering the Crown’s claim, it should draw an inference of guilt from an accused’s after-the-fact conduct: In order to draw inferences, the decision maker relies on logic, common sense and experience. As with all circumstantial evidence a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn ‘must be reasonable according to the measuring stick of human experience’ and will depend on the nature of the conduct, which is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence. [citation omitted] That there may be a range of potential inferences does not render the after-the-fact conduct null. [97] An inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence. However, when the jury is considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the jury is not engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the jury is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the jury can consider other reasonable alternative explanations for the conduct. Those alternative explanations may or may not lead the jury to conclude the Crown has failed to prove that guilt is the only reasonable inference available on the evidence: R. v. Villaroman , 2016 SCC 33, at paras. 28, 35-42. [98] In determining whether the Crown has met that burden in a circumstantial evidence case, the jury may apply its logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available. As explained in Villaroman , at para. 36: a reasonable doubt or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence … a certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [99] The jury should have been instructed that, if it concluded the appellant fabricated the home invasion story, it should, in deciding what inference, if any, to draw from that finding, consider other reasonable possibilities which, as a matter of logic and human experience, arose from the totality of the evidentiary picture, including any gaps in the evidence. [100] In my view, human experience and common sense suggested various explanations, should the jury conclude the appellant fabricated the home invasion story. Some of those possibilities point toward guilt, others do not. [101] It was a reasonable possibility the appellant fabricated the story to hide the fact she smothered Cynara to death. It was also reasonably possible she fabricated the story to hide the fact she had failed in her duty to protect Cynara after Cynara suffered a seizure. Alternatively, it was reasonably possible that the appellant fabricated the story because she felt responsible for what had happened to Cynara, regardless of whether her conduct would actually attract criminal responsibility, and she was attempting to shift the blame elsewhere. Finally, it was reasonably possible that the fabrication of the home invasion story was explained by the appellant’s panic associated with a fear of being accused by the authorities of killing Cynara, regardless of whether the appellant was in fact responsible for her death: Calnen , at para. 117. [102] I do not suggest the possibilities listed above exhaust the reasonable possibilities that the jury would have been entitled to consider in deciding what inference, if any, to draw from the fabrication of the home invasion. Nor do I suggest the trial judge was required to catalogue the reasonable possibilities. He was required, however, to instruct the jury, that when it was considering whether the Crown had met its onus, it should consider reasonable possible explanations for fabricating the home invasion story, other than the explanation urged by the Crown. One or two examples of what the trial judge regarded as reasonable possibilities open for consideration may have been helpful in explaining to the jury how it should approach its task if it concluded the appellant fabricated the home invasion story. [103] The trial judge should also have instructed the jury to consider those other possible reasonable explanations in the context of the entirety of the evidence. For example, while the appellant’s character and long-time devotion to Cynara might suggest a non-culpable explanation for the fabrication of the home invasion story, the details and effort involved in constructing and repeating the fabricated story might well suggest a more sinister explanation. Ultimately, it was for the jury, having considered other possible reasonable explanations, to decide whether, on the totality of the evidence, the Crown had proved the case against the appellant. B. did the trial judge unfairly review ms. Chariyaudom’s evidence in his instructions to the jury? [104] The appellant submits the trial judge unfairly reviewed the evidence of Ms. Chariyaudom and made “a series of misstatements” in the course of that review. According to the appellant, the trial judge’s treatment of Ms. Chariyaudom’s evidence substantially undermined its potential value to the defence. [105] The trial judge referred to Ms. Chariyaudom’s evidence several times during his instructions. In his review of Ms. Chariyaudom’s evidence, the trial judge identified features of her evidence supporting the appellant’s position and other aspects of her evidence relied on by the Crown. For example, the trial judge referred to the timing of Ms. Chariyaudom’s sighting of the two men, and her general description of those men, as supporting the defence. He also told the jury to take into account the arguably significant difference between the appellant’s description of the coats worn by the robbers and the coat identified by Ms. Chariyaudom in the “coat lineup”. [106] The appellant contends there was in fact no inconsistency between the appellant’s evidence and Ms. Chariyaudom’s evidence about the coats worn by the persons they saw. The appellant argues, Ms. Chariyaudom’s vantage point did not allow her to see below the chest level of the two men she observed in the garage. The appellant, on the other hand, saw the full figures of the robbers. [107] The interpretation of the evidence advanced in this argument comes for the first time on appeal. At trial, the defence acknowledged some inconsistencies in the descriptions of the coats but pointed to various explanations for those inconsistencies. In any event, the extent to which the descriptions of the coats were inconsistent, and the significance of any inconsistencies, were questions for the jury. The trial judge reviewed the relevant evidence and properly left it with the jury. [108] The appellant’s suggestion that the trial judge made “several misstatements” about Ms. Chariyaudom’s evidence identifying the men in the garage is not supported by a review of the jury instructions. The trial judge arguably made one error in his review of the evidence pertaining to Ms. Chariyaudom’s identification. One passage from the jury charge, although somewhat ambiguous, would appear to indicate that Ms. Chariyaudom had picked out more than one photograph from the “coat lineup” shown to Ms. Chariyaudom. She had in fact picked out only one photograph. [109] There was no objection to the trial judge’s instructions relating to the evidence of Ms. Chariyaudom. At its highest, the appellant has demonstrated an error in the review of Ms. Chariyaudom’s evidence. Bearing in mind the jury was told it was their recollection of the evidence that mattered, a single minor factual error in the course of an extensive review of the evidence by the trial judge is no reason to set aside a conviction. [110] I would not give effect to this ground of appeal. C. the instruction on motive [111] The appellant submits the jury instructions on motive reveal two errors. First, the trial judge failed to correct improper submissions made by Crown counsel in her closing and, second, the trial judge should have told the jury the evidence showed the appellant had no motive to kill Cynara. Counsel contends the trial judge should have told the jury a proved absence of motive constituted circumstantial evidence supporting the defence position the appellant did not cause Cynara’s death. [112] Motive is usually not an element of the offence and the Crown is not required to prove motive. Motive describes a state of mind. That state of mind can constitute circumstantial evidence relevant to proof of the actus reus and/or mens rea of the offence: R. v. McDonald , 2017 ONCA 568. [113] If the Crown asks the jury to infer from the evidence that an accused had a certain motive, the evidence must be reasonably capable of supporting that inference. If the inference does not arise reasonably from the evidence, the trial judge should tell the jury to disregard the Crown’s submission. [114] In her closing, Crown counsel acknowledged that the appellant’s motive may never be known. She went on to suggest at least three possible motives. [115] The Crown argued, based on a conversation the appellant had with her pastor many years earlier, that the appellant had let Cynara “go from her heart” and stopped loving her. There was simply no evidence to support this submission. In fact, all of the evidence was to the contrary. If anything, the conversation with the pastor indicated that the appellant, a devout Christian, had come to grips with Cynara’s tenuous mortality and was prepared to accept the will of God. The trial judge effectively put this interpretation of the conversation with the pastor to the jury when he characterized the conversation with the appellant as a “theological discussion”. [116] Crown counsel also suggested the timing of Cynara’s death could be explained by the appellant’s desire to avoid attracting the suspicion of the immigration authorities. It was only after the family obtained permanent residence status that the appellant felt she could proceed with the plan to kill Cynara without attracting that attention. This submission suggests the appellant had decided to kill Cynara months before she put the plan into motion. [117] Once again, there was no evidence to support this submission. Unfortunately, the submission could also have played into the false and negative stereotypes that some people have about immigrants who are attempting to gain permanent status in Canada. The trial judge should have told the jury there was no basis in the evidence for the claim the appellant may have been planning to kill Cynara for months and was only waiting until the family had its permanent residence status. [118] The Crown also argued that Cynara’s killing may have been motivated by financial concerns. I have difficulty finding any firm evidentiary basis for this argument. It is true the Ali family, like many families, had debts and were far from well off. It is also true that Cynara’s future care may well have involved costs not covered by Mr. Ali’s insurer or OHIP. However, there is no evidence that Cynara’s care and medical needs imposed a significant burden on the family’s finances, or that the appellant believed Cynara’s future needs would overwhelm the family’s financial resources. [119] The trial judge left “financial stress” as a possible “partial motive”. He did so in a single sentence, followed immediately by the observation “the defence says there is no evidence of any motive”. [120] In my view, the evidence capable of supporting the submission the killing of Cynara was motivated by “financial stress” was so meagre as to render the inference that the killing was motivated by “financial stress” speculative. The suggestion that the appellant was motivated by “financial stress” should not have been left with the jury as a possible motive: see R. v. Johnson (2010), 262 C.C.C. (3d) 404 (Ont. C.A.), at paras. 99-101, 119-20. [121] While I am satisfied the Crown put suggestions of motives to the jury unsupported by the evidence, I do not agree with the appellant’s submission the evidence justified a proved absence of motive instruction. No such instruction was sought at trial. There is a well recognized difference between the absence of evidence of motive and a proved absence of motive: R. v. Lewis , [1979] 2 S.C.R. 821, at para. 38; R. v. Barton , 2019 SCC 33, at paras. 133-36; R. v. White (1996), 29 O.R. (3d) 577 (C.A.), at para. 101, aff’d [1998] 2 S.C.R. 72, at para. 59. The trial judge made it clear to the jury that it was the defence position there was no evidence of motive. He was not required to go further than that on this evidence. [122] As I would allow the appeal on another ground, I need not decide whether the trial judge’s failure to remove certain motives suggested by the Crown from the jury’s consideration would constitute reversible error. Hopefully, and assuming no material changes in the evidence, my comments will provide some assistance at the retrial. D. was the conviction for first degree murder unreasonable? [123] The appellant submits a conviction on the charge of first degree murder was not reasonably open on the evidence. Counsel contends, even if the jury concluded the appellant killed her daughter and fabricated the home invasion story to cover up the killing, the only reasonable inference from the evidence is that the cover up occurred after the appellant killed Cynara. Counsel submits, that if the cover up followed the killing, there was no basis for a finding the murder was planned and deliberate. [124] I agree a finding the home invasion story was fabricated was essential to a conviction for first degree murder. I also agree that the fabrication of the home invasion story could only assist in proving first degree murder if the fabrication, or at least the planning for the fabrication, occurred before the appellant killed Cynara. [125] I do not, however, agree it would have been unreasonable, on the totality of the evidence, to infer that the fabrication of the home invasion story, if not the actual staging of the home invasion, took place before the appellant killed Cynara. As Crown counsel argued, the details of the story provided to the police, almost immediately by the appellant, the steps taken throughout the house to corroborate the home invasion narrative, and the brief time period the appellant would have had to take all those steps after killing Cynara, but before calling 9-1-1, were capable of reasonably supporting the inference the appellant had thought about and planned what she would do and say to explain Cynara’s death before killing her daughter. [126] The evidence warranted leaving first degree murder with the jury. conclusion [127] I would allow the appeal, set aside the conviction and order a new trial on the charge of first degree murder. [128] The appellant will attend before the trial court as required. She will remain subject to the terms of her bail order dated February 25, 2021, subject to variation by this court or the trial court. Released: “DD” “May 28, 2021” “Doherty J.A.” “I agree David Watt J.A.” “I agree K. van Rensburg J.A.” [1] As I understand the medical evidence, SUDEP will only be described as the cause of death in the absence of evidence pointing to other causes. Here, both experts agreed there was evidence of other causes. [2] The trial judge instructed the jury that all of the evidence said to show the appellant fabricated the home invasion story, with the exception of the “robbers’” letter, was relevant to all three issues. He instructed the jury the letter was not relevant to the question of planning and deliberation. The appellant does not take issue with this part of the instructions. [3] The appellant argued that the trial judge’s repeated use of phrases like “post-offence conduct” and “staging of the crime scene” prejudiced the appellant in that they may have led the jury to assume an offence had occurred. I would not go that far, but phrases like “post-offence conduct” and “consciousness of guilt” are best avoided in jury instructions: R. v. Peavoy (1997), 117 C.C.C. (3d) 226, at para. 23 (Ont. C.A.); R. v. Campbell (1998), 122 C.C.C. (3d) 44, at para. 24 (B.C.C.A.), aff’d, [1998] 3 S.C.R. 533.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ali, 2021 ONCA 218 DATE: 20210409 DOCKET: M52083 (C68555) Pardu , Brown and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Zulfiqar Ali Applicant Zulfiqar Ali, acting in person Nicole Rivers, for the respondent Heard: April 6, 2021 by video conference REASONS FOR DECISION [1] The applicant asks this panel to review the decision of a single judge of this court refusing an extension of time. [2] The applicant was convicted on April 3, 2018 of failure to comply with a term of an undertaking requiring that he not communicate with the mother of his son and, on August 24, 2018, of an assault, for slapping his son on the face. He received 15 months’ probation for the breach of undertaking, and he was ordered to enter into a common law peace bond. He received a conditional discharge for the assault, with one year of probation. [3] The applicant appealed to the summary conviction appeal court, and his appeal was dismissed on November 1, 2018. He had not filed the transcripts of the trials and there was no basis for the summary conviction appeal court judge to assess his claims of error. Some 20 months later, the applicant sought an order from this court seeking an extension of time within which to seek leave to appeal from the summary conviction appeal court dismissal. [4] On October 5, 2020, MacPherson J.A. dismissed the application for an extension on the grounds that there was no explanation for the delay, no evidence that the applicant had formed a bona fide intention to appeal in a timely fashion, and on the ground that there was no apparent merit to the appeal. The applicant attempted to appeal this refusal to the Supreme Court of Canada, which would not entertain the matter. The applicant then returned to this court, seeking an extension of time to seek a panel review of the decision of MacPherson J.A. That application was also dismissed on December 29, 2020 by Coroza J.A., who concluded that there was no merit to the appeal and that the applicant could not satisfy the test for granting leave to appeal to this court from the summary conviction appeal judge. Coroza J.A. also concluded that there were no new or changed circumstances that would justify a departure from the decision of MacPherson J.A. [5] The applicant now asks this court to review the decision by Coroza J.A. [6] The applicant’s disagreement with his convictions seems largely factual. No error of law on the part of the trial judge is alleged. There is no explanation for the delay between the time of the dismissal of the summary conviction appeals and the motion to this court to extend time. [7] We agree with the decisions by MacPherson J.A. and Coroza J.A. and see no basis to depart from the decision of Coroza J.A. [8] The application is dismissed. “G. Pardu J.A.” “David Brown J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Antoine, 2021 ONCA 167 DATE: 20210316 DOCKET: C68173 Tulloch, Huscroft and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Crystal Joanne Antoine Appellant Crystal Joanne Antoine, acting in person Gerald Chan, appearing as duty counsel Kerry Benzakein, for the respondent Heard and released orally: March 9, 2021 by video conference On appeal from the conviction entered and sentence imposed on December 24, 2019 by Justice Alain H. Perron of the Ontario Court of Justice. REASONS FOR DECISION [1] On December 24, 2019, the appellant Crystal Joanne Antoine pled guilty to possession for the purpose of trafficking 171 pills of methamphetamine, four counts of failure to comply with the conditions of her probation, five counts of failure to comply with the terms of her recognizance, and two counts of failure to attend court. [2] She did so after her counsel advised the Court that he had conducted a pre‑plea inquiry, and the appellant confirmed that her plea was voluntary. The trial judge reminded her of the implications of pleading guilty and she confirmed that she understood and wished to plead guilty to all charges. [3] The judge then considered the possibility of a conditional sentence but decided that a conditional sentence would be inappropriate because of the appellant’s serious addiction and her failure to comply with many court orders. He told her that in order to be enrolled in the drug treatment plan, she was required to serve a sentence of at least 9 months and advised that he would impose a sentence of 9 months in custody. She then agreed to be enrolled in the drug treatment plan. He did not address the Gladue principles as he was not told the appellant was Indigenous. [4] The appellant was sentenced to 9 months in custody on the drug trafficking offence and an additional 30 days for breach of the court orders. [5] She appeals both her conviction and sentence. [6] At the hearing, the Crown submitted that the sentence should be reduced to 6 months in light of the fact that the Gladue principles were not addressed. The appellant also informed the court that she was abandoning her conviction appeal. The appellant agrees with the Crown’s submission to reduce the sentence. [7] In view of the sentencing judge’s failure to apply the Gladue principles as set out in s. 718.2(e) of the Criminal Code, as he was required to do, the sentence will be reduced to six months. [8] Leave to appeal sentence is therefore granted and the sentence is reduced to 6 months. The appeal from conviction is dismissed as abandoned. “M. Tulloch J.A.” “Grant Huscroft J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Aslami, 2021 ONCA 249 DATE: 20210421 DOCKET: C66326 Simmons, Lauwers and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Milad Aslami Appellant Jill R. Presser and Cate Martell, for the appellant Emily E. Marrocco, for the respondent Heard: November 19, 2020 by video conference On appeal from the convictions entered on December 8, 2017, and the sentence imposed on April 26, 2018, by Justice W. Vincent Clifford of the Ontario Court of Justice. Nordheimer J.A.: [1] Milad Aslami appeals from his convictions on multiple charges related to the firebombing of a home in Ottawa that occurred on November 12, 2016. The issue at trial was whether the appellant was the firebomber. In my view, the trial judge made three serious errors in his analysis that led to the convictions. As a result of these errors, the convictions cannot stand. Background [2] The events leading up to the firebombing began with the appellant’s ex-wife having sex with a man, S.F., who had been the appellant’s friend, but was now a bitter enemy. [1] The appellant’s ex-wife, who had only recently separated from the appellant, engaged in this activity as a way of hurting the appellant. She ensured that the appellant learned of her sexual encounter with S.F. when, the day after the sexual encounter, and shortly before the firebombing occurred, she sent the appellant a picture of her and S.F. in bed together. [3] It was those few hours, after the picture was sent, when the home of S.F.’s former partner (and the mother of his children), was firebombed. At 2:00 p.m., a stolen van was driven into a vehicle parked in the carport of the home. A homemade incendiary device was then thrown through the living room window. Fortunately, the occupants of the home escaped unharmed. [4] Before and after the firebombing, the appellant’s ex-wife and S.F. received several messages, both by text and on social media platforms. The contents of some of those messages suggested that the sender was involved in the firebombing. At trial, both the appellant’s ex-wife and S.F. testified to their belief that it was the appellant who had sent these messages. Indeed, it was the appellant’s ex-wife who showed the messages she received to the police, which led to the appellant’s arrest. [5] At trial, the prosecution relied on evidence of the appellant’s motive (revenge for the sexual encounter) and the fact that the appellant had the opportunity to commit the attack. There was also a purported identification of the appellant as the firebomber, from a surveillance video, of which I will have more to say later. A crucial part of the prosecution’s case, however, were the messages received by the appellant’s ex-wife and S.F. [6] The defence theory was that some, or all, of these messages were, in fact, created by the appellant’s ex-wife and S.F. in order to frame the appellant for the firebombing and cause his removal from Canada. The appellant did not testify, nor did the defence lead any other evidence. The trial decision [7] This was a judge alone trial. The trial judge recognized that the prosecution’s case was largely circumstantial. He referred to the decision in R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000. The trial judge acknowledged that the prosecution “may need to negative” other reasonable possibilities that arose from the evidence. [8] After reviewing the evidence, the trial judge found that it was the appellant who had sent the various messages that provided the crux of the prosecution’s case. He also admitted, and relied upon, identification evidence from the appellant’s ex-wife, who had watched a video of a person believed to be the firebomber that had been taken from a transit station surveillance camera. The appellant’s ex-wife identified the appellant as the person in this surveillance video. Finally, the trial judge made reference to the fact that the appellant had not testified. He followed this observation by finding that the appellant had, thus, not put forward any evidence of “an affirmative defence”. The trial judge concluded that there was “an overwhelming body of evidence” that established the guilt of the appellant beyond a reasonable doubt. Analysis [9] It is not necessary to address every complaint that the appellant makes regarding the trial judge’s reasoning. I said at the outset that the trial judge committed three serious errors in his analysis. It is only those errors that I will address, in turn. I begin with the trial judge’s handling of the messages. (a) The messages [10] As I earlier observed, the various messages were central to the prosecution’s case. In my view, the trial judge did not recognize the inherent fallibility of this evidence. [11] This case demonstrates the risks associated with not paying adequate heed to the dangers that are associated with relying on text and other messages, absent expert evidence explaining how various pieces of software, or “apps”, can be used to generate these messages, and how reliable the resulting messages are in different respects. Put simply, it is too easy to use various pieces of software to create, or manipulate, messages such that they can appear to be from someone when, in fact, they emanate from an entirely different person. Similarly, the timing of the messages can be altered to suit a particular purpose. [12] There were three sources of the messages in this case: SMS text messages, messages from an app called TextNow, and messages on a Facebook page. Each of these different sources has its own particular frailties. [13] It was part of the defence theory in this case, that these messages could have been sent by the appellant’s ex-wife, on her own or in conjunction with S.F., and could have been made to look like they came from the appellant, in order to frame the appellant for the firebombing. The appellant notes that this conduct would be consistent with the desire of his ex-wife to hurt him, or otherwise get revenge on him, arising from the breakdown of their relationship. It would also be consistent with the longstanding animus that existed between S.F. and the appellant. The appellant asserts that the trial judge’s finding that he authored the messages was based on logically flawed reasoning. (i) The SMS Messages [14] There is no dispute that the appellant’s ex-wife and S.F. received various SMS messages from someone. The police extracted the SMS messages both from the phone that belonged to the appellant’s ex-wife and from the phone that belonged to S.F. [15] In the case of the messages from the phone of the appellant’s ex-wife, the cellphone number from which the messages were sent was registered to someone other than the appellant. The only connection between the appellant and that cellphone number was the fact that the appellant’s ex-wife had saved the number as a contact in her phone under the name “Sumal Jan,” with a photo of the appellant. The appellant’s ex-wife testified that “Sumal Jan” was the appellant’s “real name from back home” and what his family called him. The appellant’s ex-wife testified that she also recognized the number as one used by the appellant. She added that she believed that she was communicating with him. A police detective gave evidence that there were several entries on the appellant’s ex-wife’s cellphone for the name “Sumal Jan” that had different phone numbers associated to them. [16] S.F. also received some SMS text messages on the day of the firebombing, but only a few, and they were sent in the space of two or three minutes. While these messages were extracted from S.F.’s cellphone by the police, the sender’s phone number could not be identified. There was no evidence that the phone number, from which these messages emanated, was connected to the appellant, other than S.F.’s evidence that he thought the messages came from the appellant. (ii) The TextNow messages [17] Between the day of the firebombing, November 12, 2016, at 12:59 p.m., and the next day, November 13, 2016, at 4:23 a.m., the appellant’s ex-wife exchanged a great many messages using the TextNow app with a contact that was, once again, saved by her as “Sumal Jan”. The appellant’s ex-wife again testified that she believed she was texting with the appellant. [18] Because these messages were received through the TextNow app, they could not be extracted from the appellant’s ex-wife’s phone. A witness from Rogers Communications provided technical evidence that only SMS text messages and voice calls appear in cellphone records, not communications sent through text apps like TextNow. [19] A police detective explained how they obtained the TextNow messages from the phone of the appellant’s ex-wife. The detective explained that the messages were contained in screenshots taken by the appellant’s ex-wife, while a detective watched, between 11:26 p.m. and 11:57 p.m. on November 13, 2016, the day the appellant was arrested, and then again in October 2017. [20] The TextNow messages raise a number of issues. For one, the prosecution did not lead any evidence to establish precisely when the TextNow messages were sent. The police officer testified that the data connected to each TextNow image shows only the time when the screenshot was created and not exactly when each of the captured messages was sent or received. The prosecution also did not lead any expert evidence regarding the functioning of the TextNow app, or its reliability, or any ability to manipulate the date, number, name of the sender, or any other details as to the operation of the app. [21] The appellant’s ex-wife testified to her belief that the times shown on the screenshots, in the small circles embedded at indefinite intervals between the messages, corresponded with when the TextNow messages were exchanged. However, because the timestamps appear infrequently, often with many messages in between, they only provide, at best, a rough sense of the timing of each message on the day it was sent or received. (iii) The Facebook messages [22] The third form of messaging was through Facebook. Facebook messages were exchanged between S.F. and someone using a Facebook account with the moniker, “Trustnoone Mob”. S.F. testified that he believed this account was associated with the appellant. He also testified that he believed he had been messaging with the appellant. The messages in question were sent between 2:40 p.m. on November 12, and 3:28 a.m. on November 13. Once again, the messages were obtained by the police through screenshots, taken by S.F. on his cellphone. (iv) The evidentiary value of the messages [23] I accept that there were SMS text messages, sent towards the end of the events leading to the arrest of the appellant, that could be used to support a finding that it was the appellant who sent those text messages to his ex-wife. In particular, the last of the text messages that were sent while the appellant was hiding from the police, who were actively searching for him, could be reasonably concluded to have been sent by the appellant. I should note, however, that even that conclusion is not without its difficulties since, when the appellant was arrested, no cellphone was found on his person and, for reasons that are not explained, the police did not search the residence for one. [2] In any event, those later text messages did not implicate the sender in the firebombing. [24] The bigger problem for the prosecution, however, is that the case did not rest on the contents of the SMS text messages. Rather, the incriminating messages were obtained from the TextNow app. Indeed, the appellant’s ex-wife testified that “[o]ur whole argument was over the TextNow app.” Unlike the SMS text messages, not only were the TextNow messages obtained in an unusual and not especially reliable way, there was nothing in the content of those messages that objectively established the appellant as the sender nor, as I have mentioned, was there any expert evidence offered regarding the functioning and reliability of the TextNow app. [3] [25] The trial judge did not deal directly with the problems surrounding the reliability of the TextNow messages. Instead, the trial judge engaged in an exercise of comparing the TextNow messages with the SMS messages, which led him to conclude that they all originated from the same person, namely, the appellant. The trial judge said : “ I find that there are striking similarities in the substantive content, specific terms, tone, grammar and spelling when comparing the messages at tabs 1 and 3.” [26] In my view, this represents a flawed and unreliable foundation for the conclusion that the trial judge reached. Grammar and spelling are not, generally, unique to a single person. Further, there are many unusual expressions that are routinely used in text messages that do not reflect proper grammar or proper spelling. Further, any person who has ever sent a text message has very likely engaged in spelling errors or, worse, has had their intended language changed by the spell check function. [27] I also do not understand what the trial judge meant by, or how he could extract, the “tone” of the text messages. It is also not clear how tone would be unique to the appellant. If the sender appeared angry or frustrated, he would not be the only sender of text messages who might be operating with those emotions. Further, there was no dispute that there was animus between the appellant and his ex-wife, and an even greater animus between the appellant and S.F., at this time. [28] Further, the reference to “substantive content” is troubling because it effectively assumes that the appellant is the sender. In other words, reliance on the content of the messages engages somewhat circular reasoning. It assumes that, because the sender of the messages knew about the firebombing, it must be the appellant who sent the messages. This approach also fails to give any consideration to the defence position that, in fact, it was the appellant’s ex-wife and S.F. who were sending the messages as a way of framing the appellant. [29] Last, are the Facebook messages. In my view, these messages had no evidentiary value. There was no evidence whatsoever tying the appellant to these messages, save for the evidence of S.F. that he believed that they came from the appellant. The problem with relying solely on S.F.’s evidence on this point, given the obvious animus between the two, is self-evident. S.F., more than any other person, had reason to falsely implicate the appellant. [4] [30] As I said at the outset, trial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value. The trial judge did not engage in that rigorous analysis in this case. In fairness, the trial judge was not assisted by the prosecution in this task. The prosecution ought to have called expert evidence to address the issues that the evidence posed, but they did not. (b) The identification evidence [31] There are two specific problems that arise from the identification evidence that was led in this case. One has to do with the appellant’s ex-wife’s identification of the appellant as the individual in a surveillance video. The other has to do with the clothing that the firebomber was observed by an independent witness to be wearing, proximate to the time when the firebombing occurred. [32] The first problem arises from a transit video camera that captured footage of the man, who the police believed was the firebomber. The man was wearing what a police officer described as “bright white pants” and a dark jacket. He ran past the camera, at 2:07 p.m., in an area that happens to also include the home of C.C., a friend of the appellant’s ex-wife. [33] On the day of the firebombing, the appellant arrived at this home, although the exact time when he arrived was a matter of dispute. The appellant asked to use the Wi-Fi to call for a ride. C.C. was not home but her boyfriend, H.M., was, as were C.C.’s children. According to H.M., the appellant stayed for about ten minutes. During that time, the appellant appeared to H.M. to be texting. H.M. testified that the appellant was wearing black jogging pants and possibly a black shirt. C.C. arrived home shortly after the appellant had left. Her children told her excitedly that the appellant had just visited. [34] There was a difference between H.M. and C.C. as to the timing of the appellant’s visit. H.M. believed the appellant visited at about 1:00 p.m. or 2:00 p.m., while C.C. was doing groceries or running errands. C.C. could not remember what she had been doing that day, but she believed that she would have returned home “before naptime, because I have to nap the kids”, “[s]o, 12, 12:30, 1, maybe, it’s usually”. [35] The trial judge accepted H.M.’s evidence on the timing of the appellant’s arrival. He appears to have dismissed C.C.’s evidence because she was equivocal about the time she returned. The trial judge then used the timing of the visit to authenticate some of the text messages. He said: Based on the evidence before me, I find that [the appellant] was at [C.C.’s] residence on November 12 th , 2016 during the afternoon at which time he had access to WiFi and that he was texting. This has significant relevance to the determination of who authored the texts sent to [the appellant’s ex-wife] at that time. The timing and the description within the texts of what is occurring is astonishingly similar to what had actually occurred; as described in detail by [H.M.]. This is very persuasive evidence which clearly supports the position that [the appellant] authored the above-mentioned texts. [36] In my view, there are two problems with the trial judge’s treatment of this evidence. For one, you cannot use the fact that the appellant appeared to be texting to, in some fashion, link the appellant to the various text messages sent. One does not simply follow from the other. For another, it seems curious for the trial judge to dismiss C.C.’s evidence as to when she returned home, given the reason that she gave for establishing when that was, i.e., putting her children down for their regular nap. For yet another, even accepting H.M.’s evidence as to the time (between 1:00 and 2:00 p.m.), it remains a problem for the prosecution as that time is still before the firebombing occurred. It was the prosecution’s position at trial that the appellant visited the home after abandoning the van used in the firebombing. [37] That fact leads into the second problem with the identification evidence. It arises from the evidence of H.M. that the appellant was wearing black pants. The transit video shows the apparent firebomber, and he is wearing white pants. There is no suggestion, nor is there any evidence, that the appellant had the opportunity to change pants between his visit to C.C.’s home and the time of the firebombing. Further, the closer the appellant’s visit was to 2:00 p.m., the less time he would have had to both change his clothes and get to the firebombing. [38] The trial judge never addresses the evidence about the appellant’s clothing, although its importance in terms of the identification of the appellant, as the firebomber, is obvious. [39] The appellant’s ex-wife was shown the transit video. There was no dispute that she had sufficient familiarity with the appellant that, in appropriate circumstances, she could give opinion evidence whether a person seen in a video was, or was not, the appellant. The issue here was that the length and quality of the video did not provide those appropriate circumstances. Further, after viewing the video, the appellant’s ex-wife testified in chief that “[i]t looks to be [the appellant]” and then agreed in cross-examination that her evidence was that “[she] guess[ed] it kind of looks like him”. The appellant’s ex-wife did not explain what led her to believe that the person she saw on the video was the appellant. [40] The trial judge said that the video portion, showing the individual, was “short” (it was five seconds) and that the video’s resolution was “less than ideal”. Indeed, the appellant’s ex-wife agreed that it was “blurry”. The trial judge found that the appellant’s ex-wife’s opinion as to the identity of the person in the video would “clearly fall short” of establishing the identification of the appellant beyond a reasonable doubt, but he found that the evidence was nonetheless not worthless. The trial judge said it could be considered alongside other evidence. [41] The trial judge also noted, on this point, that the appellant’s ex-wife had seen how the person “had moved” in the video, in terms of her identification. However, the appellant’s ex-wife had not said that she relied on the physical movement of the person as a reason for her identification. [42] In my view, this evidence was worthless. It had no probative value on the issue of identification. As Hourigan J.A. observed in R. v. Olliffe , 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39: The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence. [Citations omitted.] [43] This was not a case like R. v. Carroo , 2010 ONCA 143, 259 O.A.C. 277, at paras. 10 and 27, which the respondent relies on, where the identification was based on the witness’ “close contact” with the perpetrator “directly in the close quarters of a car with relatively good lighting” and where the witness had a “clear view of the perpetrator’s face and body type.” Quite the contrary. The trial judge erred in relying at all on the appellant’s ex-wife’s identification from the “blurry” video. (c) The van [44] The third serious error involves the evidence of the van that was used by the firebomber. It was a white van with signage on the side. The van belonged to a company that had reported it stolen the day prior to the firebombing. In other words, the van was stolen more than 24 hours prior to the appellant learning of the sexual encounter between his ex-wife and S.F., which is said to have been the catalyst for the firebombing. [45] There is no evidence implicating the appellant in the original theft of the van nor is there any evidence as to how it came into his possession, assuming of course, that it did come into his possession. The prosecution attempted to avoid this problem by suggesting that the appellant may have stolen the van some time after it was originally stolen. That would mean that the van would have had to have been stolen twice in under 24 hours. The prosecution’s suggestion would involve an incredible coincidence, and one for which there is absolutely no evidence. [46] The trial judge’s response to this issue was succinct. He said simply that it did not “support a plausible theory that is inconsistent with guilt and it [did] not raise a reasonable doubt”. That was, in my view, an inadequate response to this issue. It was also incorrect. SUMMARY [47] As I noted at the outset, this was an entirely circumstantial case. Consequently, the trial judge was required to follow the analytical route set out in Villaroman , where Cromwell J. said, at para. 37: When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused". "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Citations omitted.] [Emphasis in original.] [48] The trial judge purported to comply with this approach, but it is clear that he did not do so. He said that he could see “no other ‘plausible theories/reasonable possibilities’ other than that of the guilt of [the appellant.]” It seems likely that it was the errors, to which I have referred above, that caused him to reach that conclusion. [49] It also seems likely that that conclusion was the result of the trial judge not considering the evidence as a whole. Viewing the evidence as a whole is a critical part of its necessary evaluation, especially in a circumstantial case, in determining whether it proves guilt beyond a reasonable doubt. As Watt J.A. said in R. v. Smith , 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 81: “ It is essential to keep in mind that it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof” (citations omitted). [50] The problems with the text messages, combined with the evidence of the clothing that the appellant was wearing and his presence at the home of his friend at, or only shortly before, the time that the firebombing occurred, combined with the timing of the theft of the van used in the firebombing, had to raise a reasonable doubt, on any fair and objective view of the evidence, as to the appellant’s guilt. It was certainly sufficient to raise a plausible theory, or reasonable possibility, consistent with the defence theory. [51] In my view, the trial judge, in coming to his conclusions, manifestly failed to consider all of the evidence. Rather, he focussed on the evidence that supported a finding of guilt and ignored, or at least failed to adequately address, the evidence that raised “other reasonable possibilities" which were inconsistent with guilt and, thus, would have raised a reasonable doubt. CONCLUSION [52] I would allow the appeal, set aside the convictions, and order a new trial on all charges. In view of my conclusion on the conviction appeal, I do not reach the sentence appeal. Released: April 21, 2021 “J.S.” “I.V.B. Nordheimer J.A.” “I agree. Janet Simmons J.A.” “I agree. P. Lauwers J.A.” [1] The appellant and his wife were separated. Given the context of this case, and to avoid the use of names, I will refer to her throughout these reasons as the “appellant’s ex-wife”. [2] The police returned to the residence the next day and did seize a cellphone. However, it was registered to someone other than the appellant and its number was not linked to these messages. [3] For example, the appellant’s ex-wife suggested that she was able to use the TextNow app to conceal her phone number from the appellant. [4] S.F. had twice been charged in the past with drive-by shootings at the appellant’s family home based on information provided to the police by the appellant.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Awad, 2021 ONCA 285 DATE: 20210504 DOCKET: C66373 Rouleau, Pepall and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and Elia Simon Awad Appellant Howard L. Krongold, for the appellant Christa Reccord and Brigid Luke, for the respondent Heard: March 17, 2021 by video conference On appeal from the convictions entered on August 15, 2018 by Justice Michelle O’Bonsawin of the Superior Court of Justice, with reasons reported at 2018 ONSC 4901. REASONS FOR DECISION [1] The appellant appeals from his convictions for possession of almost one kilogram of cocaine for the purpose of trafficking and for possession of the proceeds of crime in the amount of $1,990. [2] The Ottawa Police Service conducted surveillance of the appellant for 23 days in connection with suspected drug trafficking activities. The surveillance revealed that the appellant and his associates had frequently engaged in various activities consistent with drug trafficking, such as short meetings on streets, in public parking lots, or in the parking lot of the garage next to the appellant’s residence, hand-to-hand transactions, and counter-surveillance manoeuvres. A few weeks before his arrest on the cocaine-related charges, police observed the appellant helping an associate to mail coffee tins full of marijuana to Nunavut. The appellant was arrested and charged with various offences related to trafficking in marijuana, but those charges were subsequently withdrawn. [3] The police obtained four search warrants to search the appellant’s residence and three other locations related to him or his associates. While the police were in the process of executing a search warrant at the appellant’s residence, the appellant arrived in the front passenger seat of a car driven by George Abou-Eid. Mr. Abou-Eid attempted to drive away but his car became stuck in the snow. Officer Grenier was wearing his police takedown vest on which POLICE was written in big white letters. He reached the front passenger corner of the car, banged on the hood, and yelled for the driver to stop. The appellant was locked in a stare with Officer Grenier who concluded that he had his hands close together towards the floor area in front of the passenger seat at his feet. Officer Grenier drew his firearm to address the potential of the appellant retrieving a weapon from the area of his feet and to address the vehicle not stopping. The car stopped. Officer Grenier observed a grey plastic bag partially sticking out from under the front passenger seat. The package was wedged fairly snuggly under the seat and he had to use a little bit of force to pull it out. His search of the car disclosed a 985.85-gram brick of cocaine wedged under the passenger seat where the appellant had been sitting. Cash in the amount of $1,990 was seized from the appellant’s jean pocket at the time of his arrest. [4] The appellant submits that the trial judge made several errors: she incorrectly used his apparent involvement in marijuana trafficking as evidence of his involvement in cocaine trafficking; she failed to make the necessary finding that the appellant’s observed alleged trafficking activities were related to cocaine trafficking; she failed to find that Mr. Abou-Eid had sole possession of the cocaine in the car that he rented and was driving at the time of the takedown by police; and she faulted the appellant for his failure to testify. He submits that the proceeds of crime conviction arises from and falls with the cocaine conviction. Finally, he submits that the proviso cannot be used to correct the trial judge’s errors: while it was not an unreasonable verdict, this was not an overwhelming case for the Crown where an acquittal would have been impossible to obtain. [5] We do not accept these submissions. [6] First, the trial judge did not misuse the evidence of the appellant’s apparent involvement in marijuana trafficking or engage in prohibited propensity reasoning, as the appellant alleges. The appellant points to the trial judge’s reasons at para. 118 as evidencing the prohibited propensity reasoning that, because the appellant was a drug dealer, he was trafficking cocaine. Moreover, the appellant argues, the trial judge erred in failing to grasp the exculpatory distinction of the appellant being a marijuana trafficker but not a cocaine trafficker. [7] As a starting point, Crown counsel expressly submitted that the Crown was not seeking to use the evidence of the appellant’s drug trafficking activities for propensity purposes but as evidence that the appellant ran a large drug-trafficking scheme. [8] We do not read the trial judge’s reasons in the way that the appellant suggests. In para. 118 of her reasons, the trial judge concluded that the appellant’s apparent engagement in marijuana trafficking was “not a relevant consideration” because of the expert evidence that drug dealers could traffic in more than one kind of drug. As a result, she rejected, as she was entitled to do, the defence argument that the evidence of the appellant’s participation in marijuana trafficking, including the mailing of the marijuana-filled coffee cans and the seizure of marijuana and related paraphernalia from his residence, negated or undermined the conclusion that he was involved in cocaine trafficking. [9] Further, the trial judge was not required to conclude that the appellant’s observed trafficking activities involved cocaine before she could link those activities to the cocaine under his seat. The surveillance evidence was only one part of all the evidence that the trial judge considered. The Crown explicitly proffered the surveillance evidence of the appellant’s involvement in marijuana trafficking, and drug trafficking generally, in relation to the appellant’s knowledge and control of the cocaine under the front passenger seat of the car. Trial counsel for the defence agreed that the trial judge would have to look at this surveillance evidence, but he argued that there may be innocent explanations for the recorded activities. Consistent with the submissions of counsel, the trial judge stated at para. 114 of her reasons: “Furthermore, I must consider the surveillance evidence in the context of the evidence as a whole. It is clear that this plays a significant role in my assessment of the elements of constructive possession.” [10] The trial judge did not consider the evidence in a piecemeal fashion. She correctly instructed herself that she was required to review “all the relevant facts presented in totality to determine whether [the appellant] personally or jointly possessed what was being transported in that vehicle ” . The appellant’s involvement in drug trafficking as revealed by police surveillance was only one of the several pieces of circumstantial evidence upon which the trial judge was entitled to rely to ground her finding that the appellant was guilty of possession of cocaine for the purpose of trafficking. The trial judge’s reasons demonstrate that she considered the totality of the evidence. As the appellant’s trial counsel submitted, it is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists. [11] This evidence also included the unchallenged expert evidence that the appellant’s observed activities were consistent with drug trafficking and that drug traffickers often deal in more than one type of drug, work with associates or runners, and use different locations such as safe residences or stash houses. The trial judge also accepted the expert testimony that it was highly unlikely that one kilogram of cocaine was left in the car with individuals who did not know it was there, and that this brick would likely be re-pressed or cut into smaller quantities and mixed with cutting agents for sale. She noted the drugs, digital scales, and drug paraphernalia that were seized at the appellant’s residence and the other locations associated with him or his associates, including various baggies that would not be used for marijuana, cocaine-cutting agents, and a large cocaine press. She concluded that the garage attached to the appellant’s residence was not a functional garage but the appellant’s “hub” where he had drug-related meetings and exchanges. She accepted the Crown’s theory that the appellant was running a large drug operation. Finally, the trial judge relied on the appellant’s close proximity to the cocaine under his seat and found that his crouched movements upon arrest were attributable to him trying to push the brick of cocaine under his seat. [12] With respect to the appellant’s argument concerning Mr. Abu-Eid, the trial judge expressly considered the alternatives of sole or joint possession and her reasons are responsive to the chief defence argument that Mr. Abu-Eid and not the appellant was the cocaine trafficker. The trial judge was not obliged to conclude that Mr. Abu-Eid alone possessed the cocaine found in the car he was driving or that it should leave her with a reasonable doubt of the appellant’s guilt. The fact that upon his arrest Mr. Abu-Eid had on his person a small amount of cocaine, consistent with personal use, that could have come from the brick found under the passenger seat of his rental car, was not dispositive of this issue. Based on the evidence that we have just reviewed, it was open to the trial judge to conclude that the appellant possessed the cocaine alone or jointly with Mr. Abu-Eid. Proof of possession does not require exclusivity. [13] Finally, the trial judge did not draw any adverse inference or inference of guilt from the appellant’s silence. Rather, she rejected the theories raised by the defence as being speculative and not based on any evidence, since the appellant elected not to testify. It was open to her to conclude that the silence of the appellant “failed to provide any basis for concluding otherwise once [she determined that] the uncontradicted evidence pointed to guilt beyond a reasonable doubt”: R. v. Noble , [1997] 1 S.C.R. 874, at para. 82. [14] We see no error or basis for appellate intervention. Given this disposition, it is not necessary to determine if the proviso would apply. [15] The appeal is dismissed. “Paul Rouleau J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bebee, 2021 ONCA 33 DATE: 20210118 DOCKET: C68499 Rouleau, van Rensburg and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Michael Bebee Appellant Michael Bebee, acting in person Nicole Rivers , for the respondent Dan Stein, appearing as duty counsel Heard: January 11, 2021 by video conference On appeal from the sentence imposed on July 3, 2020 by Justice Riun Shandler of the Ontario Court of Justice. REASONS FOR DECISION [1] At the conclusion of oral submissions, we advised that we would allow the sentence appeal and vary the sentence from four years to one of three and a half years with reasons to follow. These are those reasons. Facts [2] On January 2, 2020, the appellant pleaded guilty to possession of a loaded restricted firearm and possession of a restricted firearm knowing possession is unauthorized. He seeks to appeal his sentence of four years less a total credit of 844 days for pre-sentence custody, resulting in a net sentence of 616 days. [3] The convictions arose out of an incident that occurred on May 11, 2019. On that day, the appellant entered a sports bar in Toronto with a friend. At that time, there were a lot of people in the area surrounding the bar. While at the bar, the appellant and his friend had an exchange with another individual. The individual then left the bar. The appellant and his friend soon left the bar as well and walked through the parking lot to a side street. The individual from the bar shot at them from a laneway behind the bar. The appellant then pulled out his handgun and retaliated, firing three times. He then began running away but turned back to fire one more shot before fleeing the scene. [4] On June 5, 2019, approximately one month after the incident, the appellant surrendered to the police. Sentencing Reasons [5] In his reasons, the sentencing judge noted the seriousness of the offences, indicating that the appellant’s conduct posed a very real and immediate danger to the public. In that regard, he opined that the principles of deterrence and denunciation were paramount in sentencing the appellant. [6] The sentencing judge considered the Gladue Report regarding the appellant’s Aboriginal status and the psychiatric report of an expert with respect to the appellant’s post-traumatic stress disorder (“PTSD”). The sentencing judge also recognized various background factors that may have played a part in the appellant’s offending, including the separation of his parents due to his father’s substance abuse and physical abuse of his mother, his experience of gratuitous abuse from his stepmother, and his experience of racism in school. The sentencing judge also accepted that the appellant was now committed to a “different lifestyle” and that this has been demonstrated by his significant efforts since being incarcerated. This was further confirmed by the appellant and duty counsel in oral submissions on appeal. Issues [7] The appellant argues that the sentencing judge erred in his assessment of the expert’s report and the role that the appellant’s PTSD played in the commission of the offences. Further, the appellant contends that the sentencing judge failed to properly apply the Gladue factors. According to the appellant, these errors resulted in an unfit sentence. Analysis [8] The expert’s report regarding the appellant’s PTSD referenced a number of significant incidents. The first occurred in 2007, when the appellant claimed he was assaulted by a large group of police officers in a case of mistaken identity. Charges were laid but the appellant was later acquitted. That incident led to the appellant’s hospitalization for a series of injuries to his chest, ribs, nose, and knees. In 2014, just prior to participating as a kickboxer in a televised sporting event, the appellant fell victim to a serious stabbing that occurred at a party. He was stabbed over 11 times in his arms, upper torso, and legs, requiring multiple surgeries and a lengthy recuperation during which he used a wheelchair for several months. Finally, in 2018, the appellant was the victim in a shooting, having suffered gunshot wounds in both feet resulting in serious damage to one foot. [9] In his report, the expert explained that following the first incident in 2007, the appellant suffered PTSD, which was exacerbated by the incidents of 2014 and 2018. For a period, he began abusing drugs and alcohol. The expert went on to explain the link between the PTSD and the offending conduct. [10] While considering this evidence, the sentencing judge noted that the basis for the expert’s conclusions remains unclear, because of apparent inconsistencies as to when the PTSD first arose and conflicting accounts as to the appellant’s purchase of the firearm. Further, the sentencing judge noted that the appellant did engage in treatment for his PTSD. In any event, while sympathetic to the appellant, the sentencing judge rejected any notion that purchasing a firearm illegally is an appropriate means of self-protection. [11] We agree with the sentencing judge and the Crown that the significant traumas suffered by the appellant and the PTSD that resulted do not justify the appellant’s purchase of an illegal firearm and his subsequent conduct. However, the traumas and PTSD were important factors to weigh in fashioning an appropriate sentence. [12] In our view, the sentencing judge erred in his assessment of the expert’s report. Although there were minor inconsistencies in his report, the basis for his conclusions were well supported. Further, the report was not tendered to somehow endorse the appellant’s acquisition and use of the firearm. Rather, the expert provided an opinion about the role that the PTSD played in the appellant’s commission of the offences. It was relevant both to the circumstances of the offences and the rehabilitation prospects of the appellant. [13] Giving the expert’s evidence appropriate weight and taking into account the Gladue Report and other background factors that apply to the appellant, including his guilty plea, and considering that the appellant appears to be continuing to progress well while in custody, we are of the view that the appropriate sentence is one of three and a half years in custody. Disposition [14] As a result, in this somewhat exceptional case, we grant leave to appeal the sentence and vary the sentence from 4 years to one of 3.5 years, which, after taking into account the credit of 844 days for pre-sentence custody, results in a net sentence of 433 days. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Beckford, 2021 ONCA 56 DATE: 20210127 DOCKET: C67382 Fairburn A.C.J.O., Watt and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Kayon Beckford Appellant Jessica Zita, for the appellant Victoria Rivers, for the respondent Heard: January 25, 2021 by video conference On appeal from the conviction entered by a jury presided over by Justice J. Ramsay of the Superior Court of Justice, dated October 11, 2018, and the sentence entered on May 9, 2019. REASONS FOR DECISION [1] The appellant was convicted of both importing cocaine and possession of cocaine for the purpose of trafficking. The cocaine was found in four hot chocolate containers, located in the trunk of a rental car as she tried to cross into Canada at Fort Erie. [2] This is an appeal from conviction and sentence. At the end of the hearing, we dismissed the appeals with reasons to follow. These are those reasons. [3] The appellant contends that the jury charge was unfair in a few respects. [4] First, the appellant suggests that the trial judge improperly used rhetorical questions in the jury charge to convey his view of the case. We do not agree these questions were rhetorical or improper. While the use of questions in jury charges has the potential to create unfairness and, therefore, should only be used with caution, the questions in this case did nothing more than focus the jury’s attention on the central issue to be decided: whether the appellant knew that there was cocaine in her trunk. [5] In any event, even if the questions could be seen as an expression of opinion, which suggestion we reject, the trial judge clearly brought home to the jury that they were the sole triers of fact and should not feel bound by any opinion or fact he expressed. [6] We also note the absence of any objection to what is now said to constitute deep unfairness in the charge. The defence silence on this point at trial is telling, especially given that trial counsel would have been in the best position to assess the overall fairness of the charge within the context of the entire trial and the issue to be decided. [7] Second, the appellant claims that the trial judge erred in failing to present the defence position fully and fairly to the jury. It is correct to observe that the trial judge said little about the defence position, other than that the Crown had failed to prove knowledge beyond a reasonable doubt. Importantly, though, the trial judge summarized the Crown position with equal brevity. [8] This was a short trial and the jury had just heard the closing submissions of counsel. Brevity can be a virtue in situations such as these. The defence position could not have been lost on the jury and, in these circumstances, there was no need for the trial judge to repeat what the jury had just heard. [9] The appellant also seeks leave to appeal from her 5.5-year sentence. She says that a three-year sentence should have been imposed. She points to three alleged errors in the sentencing reasons. [10] First, the appellant contends that the trial judge did not consider her full rehabilitative potential by failing to take into account her personal circumstances, including her history of physical and sexual abuse, as well as her employment history. Importantly, the appellant did not choose to have a pre-sentence report prepared. While she wished to pursue a different type of report, in the seven months between verdict and sentencing, she did not do so. In the end, the appellant’s personal circumstances were conveyed to the court through counsel’s submissions and not through evidence. Despite this fact, the trial judge was “prepared to accept some of the things that [he had] been told.” We see no error in his approach. [11] Second, the appellant contends that the trial judge erred by failing to address many of the sentencing decisions he had been provided. The trial judge was under no obligation to address every authority provided to him. He grappled with the central authorities, specifically referring to this court’s decisions in R. v. Madden , 1996 CanLII 10212 (Ont. C.A.) and R. v. Cunningham , 1996 CanLII 1311 (Ont. C.A.) . In Madden , the sentencing range for first-time offenders importing “more or less” one kilogram of cocaine was three to five years. In Cunningham , the court referred to the sentencing range for importing multiple kilograms of cocaine to be six to eight years. [12] The trial judge specifically noted that in this case, he considered the around 1.5 kilograms of cocaine, found in the four hot chocolate containers, to be “a little more than 1 kilo more or less”. In his view, this drove the range to somewhere between the Madden and Cunningham ranges. We see no error in this approach. [13] Finally, the appellant argues that the trial judge erred by failing to apply the principle of restraint when sentencing a first-time offender. While the trial judge did not specifically advert to the principle of restraint, he was well alive to the fact that the appellant was a first-time offender. He was also alive to the fact that the Madden and Cunningham ranges are set for first-time offenders. [14] Sentencing is an individualized process. We see no legal error in the trial judge’s approach. The sentencing decision is owed deference. [15] The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed. “Fairburn A.C.J.O.” “David Watt J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bell, 2021 ONCA 315 DATE: 20210513 DOCKET: C68736 Hoy, Hourigan and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Raynard Bell Appellant Raynard Bell, acting in person Richard Litkowksi, acting as duty counsel Nicole Rivers, for the respondent Heard: May 6, 2021, by videoconference On appeal from the sentence imposed by Justice Douglas K. Gray of the Superior Court of Justice on May 25, 2020. REASONS FOR DECISION [1] After a guilty plea, the appellant was convicted of one count of human trafficking. [2] The sentencing judge accepted the parties’ agreement that an appropriate base sentence would be five years. He applied a 1.5 multiplier to the appellant’s pre-sentence custody of 610 days, which amounted to a credit of 30.5 months. The sentencing judge then went on to consider two collateral consequences of the sentence. [3] First, he reviewed the impact of the COVID-19 pandemic on the appellant. The defence sought a credit of approximately 30 days, which was based on a 0.5 day credit for each of the approximate 60 days of pre-sentence custody impacted by the pandemic. There was also reference in the submissions to the impact of COVID-19 going forward, but no specific submission that an additional credit should be granted to reflect the fact that the sentence would be served during the pandemic. [4] The sentencing judge noted that there was no evidence of an outbreak of COVID-19 in any of the institutions where the appellant had been housed. He also observed that that the effect of the COVID-19 pandemic cannot result in an inappropriate sentence. The sentencing judge declined to give any credit for the impact of the pandemic. [5] Second, the sentencing judge considered the lockdowns in the institutions where the appellant was housed and the effect of two in custody assaults on him. In so doing, the sentencing judge adverted to the appellant’s affidavit regarding the personal impact of the lockdowns and assaults. [6] The sentencing judge rejected the Crown’s submission that the credit pursuant to R. v. Duncan , 2016 ONCA 754 should be in the four to six-month range. He also declined to accede to the defence's position that the credit should reduce the sentence to time served. He ultimately found that the appropriate Duncan credit for the conditions experienced by the appellant was nine months. Consequently, he sentenced the appellant to 20.5 months and made a series of ancillary orders. [7] On appeal, the appellant submits that the sentence imposed was excessive. He argues that he should have been given credit for the impact of COVID -19 both during his pre-sentence custody and his time in custody after his sentencing. [8] We are not persuaded that we should interfere with the sentence imposed. The sentencing judge accepted the base sentence proposed by the parties and gave the appellant credit at the usual rate for his pre-sentence custody. On the issue of Duncan credits, the sentencing judge carefully considered the arguments advanced by the appellant and applied a credit of nine months. In our view, this was a reasonable exercise of his discretion and is owed deference by this court: R. v. Ledinek , 2018 ONCA 1017, at para. 13. [9] With regard to COVID-19, leaving aside that there was no specific request for a credit based on the fact that the sentence would be served during the pandemic, implicit in the sentencing judge’s conclusion regarding the Duncan credit was that any additional credit beyond nine months would render the sentence unfit. That was a conclusion that was available to the sentencing judge, and we agree with his statement that any credit for the pandemic cannot render the sentence unfit. [10] In summary, we see no error in principle committed by the sentencing judge and the sentence is fit in the circumstances. Leave to appeal sentence is granted, but the sentence appeal is dismissed. “Alexandra Hoy J.A.” “C.W. Hourigan J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bielli, 2021 ONCA 222 DATE: 20210409 DOCKET: C62930 Pepall, van Rensburg and Brown JJ.A. BETWEEN Her Majesty the Queen Respondent and Andrew Bielli Appellant James Lockyer and Jack Gemmell, for the appellant Emily Marrocco, for the respondent Heard: October 21, 2020 by videoconference On appeal from the conviction entered on January 5, 2017 and the sentence imposed on January 5, 2017 by Justice John B. McMahon of the Superior Court of Justice. Pepall J.A.: [1] At the centre of this appeal is a planned and intentional breach of s. 10(a) of the Canadian Charter of Rights and Freedoms. The breach formed part of a police ruse designed to search the appellant and his vehicle in furtherance of a larger investigation into illegal gambling in Ontario. [2] The appellant appeals from his conviction of possession of proceeds of crime over $5000 for the benefit of a criminal organization. Prior to trial, the appellant applied to exclude evidence pursuant to s. 24(2) of the Charter on the basis that his Charter rights under ss. 8, 9, 10(a) and 10(b) had been infringed. M.G. Quigley J., the application judge, concluded that although there had been no breach of ss. 8 or 9, the appellant’s rights under ss. 10(a) and 10(b) had been breached. However, after conducting a s. 24(2) analysis, he dismissed the application. For the reasons that follow, I would allow the appeal. A. Background Facts (1) The Investigation [3] In 2011, the police began an investigation into a suspected criminal organization operating illegal gambling online and in the City of Toronto. The investigation was called Project O’River. Detective Kevin Leahy, an officer with the Combined Forces Special Enforcement Unit, was the lead investigator. [4] Platinum SB (Sports Betting) operated a betting website. It had a network of betting agents or “bookies”. The bookies dealt directly with the bettors, and the bettors’ losses were physically collected weekly by the bookies and ultimately remitted to management. The appellant was alleged to be one of those collecting the proceeds from the bookies for the benefit of members at the top level of the organization. [5] The investigative team hoped to arrest prominent members of the organization. The “take-down day” was to be on the occasion of the 2013 Super Bowl party, an annual event where members would congregate early in the year. [6] By November 2012, the lead investigators believed that the appellant was a central figure within the Platinum SB organization. The police had conducted wiretaps and surveillance and had observed the appellant exchange packages, and on one occasion cash, with at least one person thought to be operating an illegal gaming website that facilitated bookmaking activities and illegal gaming on sports activities. In addition, the appellant was seen meeting with subjects of the investigation on a number of different dates. [7] The officers suspected that the appellant travelled regularly between London and Toronto on Tuesdays and Thursdays to collect money for Platinum SB. They believed he returned to London with the proceeds of the transactions which might be mixed with other monies when he got home. Det. Leahy testified that the investigation was losing evidence every week. [8] Det. Leahy wanted to seize evidence from the appellant and his vehicle without disclosing or compromising the ongoing investigation. Undercover officers were engaged in the investigation and their safety was also of concern to him. (2) Discussion with Crown Attorney [9] Det. Leahy spoke with Andrew Sabbadini, the Crown attorney assigned to Project O’River. Mr. Sabbadini had given advice to Det. Leahy previously on general warrants and was familiar with the Project O’River file. [10] Det. Leahy asked Mr. Sabbadini whether the police could apply for judicial authorization using a general warrant under s. 487.01 of the Criminal Code , R.S.C. 1985, c. C-46, so as to obtain evidence from the appellant’s vehicle without disclosing the investigation to him. Det. Leahy proposed that, using the Highway Traffic Act , R.S.O. 1990, c. H.8 to stop the appellant, the police would search his vehicle and seize the evidence pursuant to a general warrant, but he would not be arrested. The application judge described Det. Leahy’s discussion with Mr. Sabbadini at para. 16 of his reasons: [W]e had asked whether we could type a general warrant to come up with an excuse for a search of Mr. Bielli’s vehicle under the guise of a general warrant. He [the Crown] told us that was not something you could do because the accused would not know the full jeopardy of the circumstances. He said a Judge would not authorize a warrant in that particular scenario because Mr. Bielli would not know the full jeopardy of the stop. [11] Thus, Mr. Sabbadini explained that he would not be willing to bring that general warrant forward as he did not feel that it would be authorized by a judge because the appellant would not know the full scope of the jeopardy he was in at the time. Det. Leahy testified that the police needed Mr. Sabbadini’s endorsement to go ahead with the general warrant. (3) The Plan [12] Around two weeks after receiving this advice from Mr. Sabbadini, Det. Leahy “hatched a plan” based on R. v. Dibble , 2011 ONSC 399, 230 C.R.R. (2d) 323, a case he learned about from a friend in another unit. There the police told the accused that his vehicle was being searched for a radar detection device when the true purpose of the search was to obtain evidence of narcotics. The Crown in that case conceded that the police breached ss. 10(a) and 10(b) of the Charter . The trial judge found that the police had breached their s. 10 obligations to protect an ongoing investigation and not to intentionally circumvent Mr. Dibble’s s. 10 rights. She refused to exclude the evidence seized. Det. Leahy familiarized himself with the Dibble decision and came up with a plan using a ruse. He cleared the ruse with his superior and prepared a typewritten “Operational Plan” (the “Plan”), the goal of which was “to conduct a vehicle stop on BIELLI, search the vehicle and seize evidence in relation to offences being investigated for Project ORIVER.” [13] The appellant would be stopped on the highway going to London from Toronto after making his collections. If the appellant did not commit a Highway Traffic Act offence, the officer would initiate a vehicle stop regardless. So as not to put the investigation into jeopardy, the appellant would not be arrested. The vehicle and the appellant would be searched for the evidence the police were seeking. [14] As Det. Leahy testified: A:      [T]he goal was to get the money on Mr. Bielli prior to him returning home after we had observed him doing these meets. A:      And the ruse was devised so [as] not [to] raise any suspicion to Mr. Bielli that we’d actually been watching him for a number of months and that he was a subject [of] a larger scale investigation that was occurring at the time. [15] Det. Leahy acknowledged in cross-examination that the Plan had nothing to do with the arrest of the appellant, it had to do with the seizure of the items in the vehicle. He instructed that the appellant should not be arrested for criminal organization and gaming offences but that he should be told that he was being investigated and detained for possession of proceeds of crime. He specifically instructed that the term “investigative detention” be used and not the term “arrest”. The appellant would not know what he was “actually under investigation for”; he would know he was being investigated for money in the car but not for criminal organization, booking or money laundering charges. [16] Det. Leahy appreciated that there were some issues with the Plan. He knew that the appellant would not know his full jeopardy and that he might make some self-incriminating remarks or statements. To mitigate the jeopardy, the officers were going to give him his rights to counsel, put him in touch with his lawyer, caution him, and would not elicit any incriminating evidence from the appellant himself, just the evidence of what the police were looking for in the vehicle and on his person. [17] The appellant was not being told he was under arrest; that was the whole plan according to Det. Leahy. However, in Det. Leahy’s mind, even though the appellant was told he was under investigative detention, he was under arrest. [18] That said, Det. Leahy acknowledged that because the appellant was told he was under investigative detention and presumably the appellant’s lawyer would be advised of the same, the appellant would get legal advice on the basis of being under investigative detention, not on the basis of being under arrest. Moreover, he acknowledged that the police could not search a vehicle incident to an investigative detention in this scenario. [1] Det. Leahy recognized that the appellant was educated in police techniques and might have refused to comply with an unlawful search pursuant to an investigative detention. Therefore the officers were to try and persuade the appellant to comply; they could try telling him that he would be arrested for obstruction, although if he fled, they were not to engage him in a pursuit. [19] Det. Leahy agreed that the appellant’s lawyer inevitably had to be misled about what was really going on; his lawyer could not be fully informed. [20] Det. Leahy offered that it was a unique situation. In hindsight it was complex and it would have been prudent to speak with Mr. Sabbadini or another lawyer. However, that was not the decision he made. In his mind, the appellant was arrestable for proceeds of crime, gaming offences, and criminal organization offences and they could search him and his vehicle incident to his arrest for those offences. [21] On November 29, 2012, Det. Leahy briefed the two officers involved in the execution of the Plan, P.C. Brisebois and D.C. Lee. He gave them a copy of the Dibble decision, which they both read , and told them that the appellant was arrestable for proceeds of crime, gaming offences, and criminal organization offences. [22] Under the Plan, P.C. Brisebois was to effect the Highway Traffic Act stop and D.C. Lee would be called in as backup. P.C. Brisebois would approach the car, get the documents from the appellant, and return to the police vehicle to do certain checks. Knowing that the appellant was associated with members of an outlaw biker gang (Hells Angels), as part of the ruse, the officers would return to the appellant’s vehicle, tell him they knew of his association with an outlaw motorcycle gang, and would like to search the car for contraband, and give the appellant his rights to counsel and a caution. Once the officers found the money, they were to stop their search and inform the appellant that he was “being detained [and] investigated for proceeds of crime … and given his rights to counsel, again”. P.C. Brisebois and D.C. Lee were told not to question the appellant. The officers were told that the appellant “would not know the full jeopardy of the circumstances he was in.” Moreover, his lawyer would not be fully informed. [23] Det. Leahy’s notes after his briefing stated: Brief PC Joe Brisebois & D/C LEE on scenario. I advise them I have grounds to arrest BIELLI for gaming & crim org related offences at this time but to protect integrity of investigation do not want to arrest him for these offences at this time. (4) Execution of the Plan [24] The Plan proceeded to execution on November 30, 2012. P.C. Brisebois stopped the appellant at 10:49 a.m., telling him that his speeding, abrupt lane change, and quick exit raised suspicion. The appellant provided P.C. Brisebois with his driver’s documentation as requested. P.C. Brisebois called D.C. Lee for backup. After conducting checks, P.C. Brisebois told the appellant that he was placing him under investigative detention as records showed his connection with the Hells Angels and that they would be searching his car for contraband and weapons. The appellant, knowing his rights, told the police that they needed a warrant. P.C. Brisebois testified that he gave the appellant two options: investigative detention or be arrested for obstruct. [2] While P.C. Brisebois could not recall the appellant’s exact response, his evidence was that the appellant became compliant and exited his vehicle. He was not arrested for obstruction but was hand-cuffed, subjected to a pat-down search, placed in the police cruiser, and given his rights to counsel and cautioned at 11:15 a.m. D.C. Lee testified that P.C. Brisebois had placed the appellant under investigative detention as soon as they reached the cruiser. [25] The appellant spoke with his lawyer, James Lockyer, in private while in the police cruiser. D.C. Lee testified that he placed the call for the appellant and told Mr. Lockyer that the appellant had been placed under investigative detention. The call lasted 23 minutes, from 11:22 a.m. to 11:45 a.m. [26] P.C. Brisebois searched the car and found cash. He testified that his lawful authority to search the appellant and his vehicle was incident to arrest based on Det. Leahy’s instruction that the police had reasonable grounds to arrest for possession of proceeds of crime. He advised the appellant at 11:55 a.m. that he was being investigated for possession of proceeds of crime. The appellant was given his rights to counsel and cautioned again and the appellant spoke with Mr. Lockyer again, from 12:08 p.m. to 12:16 p.m. At some point, P.C. Brisebois told Mr. Lockyer that the traffic stop was for speeding and an unsafe lane change and that the search was to look for contraband and weapons, based on “affiliation with Hells Angels”. [27] The officers conducted a more thorough search of the vehicle which they completed at 12:49 p.m. They gave the appellant a receipt for the property taken: $74,835 in cash, a number of cellphones, and a laptop, among other things. Contrary to their instructions, the two officers did question the appellant, but he declined to answer them. [28] P.C. Brisebois testified that he gave the appellant a verbal warning about his speed and improper lane change but did not issue a Highway Traffic Act ticket because he did not have proper evidence for this. The appellant was released without charges at 1:46 p.m. He had been detained for nearly three hours. (5) Reporting on the Outcome [29] The officers completed their paperwork for the stop. The Plan prepared and distributed by Det. Leahy instructed them to complete the necessary reports but that “[n]o mention of Project ORIVER will be included in the report. The OPP Port Credit officer [P.C. Brisebois] will be provided with a project book specific to ORIVER to make notes regarding the briefing to this stop. Duty books of the officer will not have any reference to ORIVER.” [30] P.C. Brisebois prepared two sets of notes, one set that referred to the traffic stop with no reference to the underlying investigation, the true purpose of the stop, or Det. Leahy’s grounds for arrest, and another set that described Det. Leahy’s Project O’River and the grounds to arrest the appellant. D.C. Lee testified that he similarly kept a Project notebook and an administrative notebook as well that would not mention the Project. P.C. Brisebois testified that it was not typical to have two sets of notes. (6) The Eventual Arrest [31] The appellant was not told he was under arrest until over two months later, on February 3, 2013. At that time, and as anticipated at the time of the execution of the ruse, the police raided the annual Super Bowl party. The appellant was arrested as were five others. He was charged with conspiracy to commit an indictable offence, possession of proceeds of crime exceeding $5,000, committing an indictable offence for the benefit of a criminal organization, and two counts of possession of the proceeds of bookmaking exceeding $5,000. A financial audit revealed that Platinum SB grossed over $103 million from 2009 to 2013. B. SUPERIOR COURT Decisions (1) Charter Application [3] [32] The appellant brought a Charter application to exclude the evidence that the police had seized during the course of the traffic stop ruse on November 30, 2012. He alleged that his ss. 8, 9 and 10(a) and 10(b) rights had been violated by the police. The Crown contested the alleged ss. 8, 9, and 10(b) Charter breaches but conceded that the police had violated the appellant’s s. 10(a) Charter rights. The Crown argued that the evidence should be admitted nonetheless. [33] The application judge determined that there was no s. 8 or s. 9 Charter breach but that the police had breached both ss. 10(a) and 10(b). He nonetheless concluded that the evidence should not be excluded under s. 24(2) of the Charter . [34] Dealing first with s. 8 and s. 9, the application judge found that the search of the vehicle was a lawful search incident to arrest. The appellant had been de facto under arrest when detained. It was not necessary for the officers to state that he was under arrest. Although the appellant was never told why he was pulled over, detained and searched, nor told the full reason for the detention, the application judge found that the appellant was aware of the gravity of the situation and was under arrest. Accordingly, the search was conducted incident to that de facto arrest. As reasonable and probable grounds existed for the arrest, the search was valid, and there was also no arbitrary detention. The application judge considered the cases of Dibble, R. v. Grant and Campbell , 2015 ONSC 1646, and R. v. Whipple , 2016 ABCA 232, 39 Alta. L.R. (6th) 1, leave to appeal refused, [2016] S.C.C.A. No. 435, where ruses were used to conceal an ongoing police investigation. In his view, the Plan was a legitimate policing technique that was designed to preserve the larger investigation while obtaining evidence from the appellant. He thus concluded that the police had not infringed the appellant’s Charter rights under s. 8 and s. 9. [35] However, the operation of the ruse resulted in a breach of both ss. 10(a) and 10(b). Putting the appellant in contact with counsel did not constitute a meaningful exercise of his right to counsel. There could not be meaningful communication between the appellant and his counsel when both were misled as to the true nature of the appellant’s jeopardy. Misinformation necessarily tainted counsel’s ability to provide meaningful and accurate legal advice. The failure to inform the appellant of the true reason for his detention and de facto arrest necessarily resulted in a substantive violation of ss. 10(a) and 10(b). [36] That said, the application judge determined that the evidence should not be excluded under s. 24(2) of the Charter . The police acted in good faith, they took steps to comply with the appellant’s right to counsel and were directed not to question him, and there was a need to protect the integrity of the ongoing investigation. The breaches therefore were serious, but these factors significantly mitigated the seriousness of the Charter -infringing conduct. Moreover, there was no meaningful impact on the appellant’s Charter -protected interests as the police had prevented the appellant from incriminating himself. Society’s interest in the adjudication of the case on its merits favoured admissibility. Accordingly, the appellant’s Charter application was dismissed. (2) The Conviction [37] The Crown amended one of the counts in the indictment and the appellant entered a plea of not guilty to the amended count of committing the indictable offence of possession of property obtained by crime over $5,000 for the benefit of a criminal organization, contrary to s. 467.12 of the Criminal Code . An agreed statement of facts was read into the record, and the trial judge entered a conviction on the one count with brief reasons delivered orally. The Crown withdrew the remaining counts. (3) The Sentence [38] Following a joint submission, the appellant was sentenced to 15 months’ imprisonment. The trial judge observed that this was at the low end of the range for the offence. C. Issues On Appeal [39] The appellant raises three grounds of appeal on his appeal of conviction. First, he submits that the application judge erred in finding that the appellant was under de facto arrest and in finding that his s. 8 Charter right was not infringed. Second, he submits that the application judge’s analysis of the s. 10 breaches was flawed. Third, he argues that the application judge erred in his analysis under s. 24(2) of the Charter . At the suggestion of the Crown and given that the application judge found breaches of ss. 10(a) and 10(b), the appellant’s s. 10 arguments are encompassed in my s. 24(2) discussion. [40] The appellant also seeks leave to admit fresh evidence for the purposes of the conviction appeal and also seeks leave to appeal his sentence and to admit fresh evidence for the purposes of the sentence appeal. The Crown seeks to admit responding fresh evidence on the sentence appeal. [41] For the reasons that follow, I would dismiss the request for leave to admit fresh evidence on the conviction appeal but would allow the appeal. There is therefore no need to address the sentence appeal or the requests for leave to admit fresh evidence on the sentence appeal. D. Discussion (1) Appeal from Conviction (a) Should fresh evidence be admitted on the conviction appeal? [42] The appellant seeks leave to introduce the Report to a Justice made by D.C. Lee on December 10, 2012, after the seizure of the items from the appellant’s vehicle on November 30, 2012. The police required the Report to obtain a detention order for the items seized. The Report made no mention of the Project O’River investigation. [43] The appellant was represented by Kim Schofield as counsel at the preliminary hearing and at trial. She considered the Report but decided against using it for reasons explained in her affidavit filed as part of the fresh evidence application: 1) In the Report, D.C. Lee did outline the details of the stop and did not try to fashion grounds for the search. Ms. Schofield noted that the Report to a Justice often does not contain the motive for the search and the form simply requires that the officer specify the exact nature of the search (including the premises, place or person searched) and the date and time of the search. 2) Ms. Schofield did not consider the Report to be crucial information; the argument was not that D.C. Lee embarked on his own breach of rights, but that he was part of a project that led to a warrantless search and a plan that resulted in breaches of ss. 8, 9 and 10 of the Charter . 3) She confirmed that the decision not to confront D.C. Lee with the Report was a strategic choice as there was a potential downside in doing so. D.C. Lee had testified well before the application judge. Ms. Schofield did not wish to call him a liar and lose credibility with respect to the rest of her arguments. Instead, her strategy was to say that all of the officers were following orders that put them in a spot to ignore Charter rights. [44] In cross-examination, Ms. Schofield stated that with the benefit of hindsight, she may have used the Report at trial and “that another decision could have been made and may have been successful.” [45] The appellant asserted in his affidavit filed in support of the request for leave that he had ineffective assistance from his counsel. However, he did not pursue this argument in his factum or in oral submissions. [46] In cross-examination for the purposes of the fresh evidence application, D.C. Lee agreed that the synopsis in the Report did not contain the full story about the ongoing investigation and that this was to protect the integrity of the investigation. However, he had been instructed to advise the justice of the peace that the vehicle stop was a ruse and he had done so orally. The transcript of his attendance before the justice of the peace on December 7, 2012 confirms that he advised the presiding justice of the peace who granted the detention order that the traffic stop had been directed by the Combined Forces Special Enforcement Unit as part of an ongoing project. [47] Due to an incorrect expiry date on the detention order, D.C. Lee subsequently attended before another justice of the peace on December 10, 2012 and swore to the truth of the information in the Report. The expiry date was then corrected. [48] The test for leave to admit fresh evidence is described in Palmer v. The Queen , [1980] 1 S.C.R. 759, at p. 775. The applicant must show that the proposed fresh evidence: (i) was not available at the time of the hearing by the exercise of due diligence; (ii) is relevant to a potentially decisive issue ; (iii) is credible; and (iv) if believed and taken together with the rest of the evidence, it could reasonably be expected to have affected the result. [49] The appellant submits that the test for admission of fresh evidence has been met. The appellant argues that the Report perpetuated the ruse, failed to comply with s. 489.1(1)(b) of the Criminal Code because it failed to make full and frank disclosure about the legal basis for the search and its investigative purpose, and also amounted to a violation of s. 8 of the Charter . Ms. Schofield as trial counsel did not consider the Charter implications of the Report’s failure to make full, frank and fair disclosure and if she had, she may have relied upon the Report. Furthermore, the filing of the deceptive Report was relevant to the appellant’s application under ss. 8 and 24(2) of the Charter and whether the police acted in good faith. Appeal counsel submits that the Report was probative and could reasonably be expected to have resulted in the exclusion of the evidence against the appellant. Counsel also asserts that the record before this court is sufficient to deal with this issue. [50] The Crown responds that the appellant is seeking to raise a new argument on appeal and there is an insufficient record for this court to make the fact-specific inquiry that is required. In addition, the test for admission of fresh evidence has not been met. [51] I would dismiss the application for admission of fresh evidence. The appellant has not met the requirements for raising a new argument for the first time on appeal, nor has he met the Palmer criteria. [52] Clearly this is a new argument raised on appeal. There is a general prohibition against such arguments on appeal: R. v. Reid , 2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016] S.C.C.A. No. 432, at paras. 37-41. To avoid the general prohibition, the appellant must satisfy three pre-conditions: i. the evidentiary record must be sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal; ii. the failure to raise the issue at trial must not be due to tactical reasons; and iii. the court must be satisfied that no miscarriage of justice will result from the refusal to consider the new argument on appeal. The decision to consider the new argument is discretionary and informed by a balancing of the interests of justice as they affect all parties: see Reid , at paras. 42-44. [53] The appellant has not satisfied any of the three pre-conditions. [54] The evidence surrounding the Report emanated from D.C. Lee in cross-examination. He filed the Report on the instructions of Det. Sgt. Goodwin who did not testify. D.C. Lee did not recall whether he had authored the Report. This raises the spectre that the evidentiary record is incomplete. [55] More significantly, this evidence was available to the appellant at the time the Charter application was heard. Experienced counsel considered and rejected the use of the Report at trial, a tactical decision based on a reasonable assessment of the evidence. The integrity of the trial process is undermined if those tactics can now be reassessed in hindsight: see R. v. Perlett (2006), 212 C.C.C. (3d) 11 (Ont. C.A.) at paras. 142-144, leave to appeal refused, [2007] S.C.C.A. No. 96. [56] I also am not persuaded that any miscarriage of justice would ensue from the refusal to consider this new argument. Significantly, D.C. Lee orally advised the presiding justice of the peace of the ruse in that the traffic stop and seizure of property had been directed as part of an ongoing investigation. In addition, the alleged deficiencies with the Report consisted of its failure to disclose the quantum of money seized and the description of the legal basis for the search. Section 489.1(1) does not specifically require that the quantum and grounds be provided. Indeed, Ms. Schofield testified that based on her experience, Reports often do not provide exact amounts or the motive for the search. Nor did she agree that such Reports typically refer to the legal basis for the search. [57] Accordingly, the appellant has not met the three pre-conditions nor do the interests of justice require that this new argument be addressed. I would decline to entertain this new argument on appeal. [58] This is determinative of the leave application, but quite apart from the issue of a new argument on appeal, for many of the same reasons, the application for leave to admit fresh evidence should also not succeed. In particular, the evidence was available to the appellant at the time of the Charter application and, taken together with the rest of the evidence, could not reasonably be expected to have affected the result. [59] In conclusion, I would dismiss the appellant’s application to admit fresh evidence on the conviction appeal. (b) Did the application judge err in concluding that there was a de facto arrest and that therefore the search was reasonable within the meaning of s. 8 of the Charter ? (i) Background and Context [60] Before the application judge, the appellant conceded that the police had reasonable and probable grounds to arrest. The Crown took the position that the appellant was under arrest at the time of his detention and that the search was incidental to a lawful arrest. In contrast, the appellant argued that regardless of the existence of reasonable and probable grounds to arrest, the appellant reasonably thought he was detained. Indeed, he was not put under arrest until two months later in February. The search was not incident to a lawful arrest, and as such was illegal and breached the appellant’s s. 8 Charter right. [61] Given their respective positions, the application judge had to consider whether the appellant was under de facto arrest. T he application judge found that there was a lawful de facto arrest in November and that the searches of the appellant and his vehicle were lawfully conducted incident to that arrest. (ii) General Principles [62] “Everyone has the right to be secure against unreasonable search or seizure.” So states s. 8 of the Charter . [63] The Supreme Court has directed that a search is reasonable if it is authorized by a reasonable law and is conducted reasonably: see R. v. Collins , [1987] 1 S.C.R. 265, at p. 278; R. v. Caslake , [1998] 1 S.C.R. 51, at para. 10; and R. v. Fearon , 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12. Police may search based on a warrant. Or, if there is no warrant, the police have a common law power to search incident to an arrest. To be valid, the arrest must be lawful, the search must have been conducted as an incident to the arrest, and it must be carried out in a reasonable manner: see R. v. Stillman , [1997] 1 S.C.R. 607, at para. 27. As stated by Lamer C.J. in Caslake , at para. 17, “searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question.” [64] The power to search incident to arrest is contrasted with the police power to search incident to an investigative detention. The power to search incident to an investigative detention is limited to safety concerns: see R. v. Mann , 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 40. There is no dispute that the power to search incident to an investigative detention did not authorize the search of the appellant’s vehicle in the circumstances. [65] In this case, the Crown relied on the common law power of search incident to arrest to provide the legal authority for the search. The right to search had to arise from the fact of the arrest: Caslake , at para. 13. Thus, the lawfulness of the search turns on whether the appellant was under a de facto arrest. If there was no de facto arrest, the common law power to search incident to arrest could not be relied upon. [66] The subject of a de facto arrest was addressed by the Supreme Court in R. v. Latimer , [1997] 1 S.C.R. 217 in the context of an alleged breach of s. 9 of the Charter . That case bears some similarities to this one. The accused was the father of a severely disabled daughter who died while in his care. The RCMP began to treat the death as a homicide investigation. The officers attended at the accused’s farm, an officer told Mr. Latimer that what the officer was about to say had very serious consequences, and that Mr. Latimer was being detained for investigation into the death of his daughter. The RCMP officers decided prior to attending at the farm that they did not wish to arrest the accused. [67] The accused was cautioned and advised of his right to retain counsel. At the police station, he confessed to the crime and gave a written statement. [68] One of the issues to be addressed was whether the appellant had been arbitrarily detained in violation of s. 9 of the Charter . The Supreme Court concluded that the detention was not arbitrary. The RCMP had put the accused under de facto arrest. That arrest was entirely lawful because it was based on reasonable and probable grounds to believe that the accused had taken his daughter’s life. A de facto arrest which is lawful cannot be an arbitrary detention for the purpose of s. 9. [69] In response to the accused’s argument that no arrest occurred because the officers deliberately chose not to arrest him, Lamer C.J. wrote that notwithstanding what their intention may have been, the conduct of the officers had the effect of putting the accused under arrest. He noted the definition of arrest found in R. v. Whitfield , [1970] S.C.R. 46: an arrest consists either of (i) the actual seizure or touching of a person’s body with a view to his detention, or (ii) the pronouncing of “words of arrest” to a person who submits to the arresting officer. As such, he declined to accept that only the word “arrest” will suffice to amount in fact to an arrest. At para. 24, he quoted from R. v. Evans , [1991] 1 S.C.R. 869, at p. 888, where McLachlin J. (as she then was) wrote for the majority that what counts is: [T]he substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used.… The question is … what the accused was told, viewed reasonably in all the circumstances of the case…. [70] Thus the test asks what the accused can reasonably be supposed to have understood in light of what he was told, viewed reasonably in all the circumstances of the case. [71] Lamer C.J. concluded that on the facts of Latimer , a de facto arrest had occurred through the use of words that conveyed clearly that Mr. Latimer was under arrest coupled with the conduct of the officers and the accused’s submission to the authority of the officers: at para. 25. Lamer C.J. was also satisfied that the arrest was lawful and hence concluded that the trial judge had correctly decided that there were reasonable and probable grounds for an arrest and accordingly the accused had not been unlawfully detained. (iii) Positions of the Parties [72] Before this court, the appellant’s argument is that the application judge’s finding that the appellant was under de facto arrest was unreasonable whereas the Crown submits that his finding was both reasonable and amply supported by the record. The Crown points to evidence that includes the police taking control of the appellant, the handcuffing, the cautions, giving the rights to counsel, informing the appellant of his known association with the Hells Angels and that his car would be searched for contraband, telling him he would be charged with obstruction if he did not cooperate, holding him for over two hours in the cruiser, permitting him to have extensive consultations with his lawyer, and his submission to the authority of the police. (iv) Analysis [73] There is no issue that the police had grounds to arrest the appellant when they conducted the vehicle stop on November 30, 2012. It is this alleged arrest that is relevant to the search, not the actual arrest of February 3, 2013. [74] As discussed, the test for a de facto arrest asks what the accused can reasonably be supposed to have understood in light of what he was told, viewed reasonably in all the circumstances of the case. [75] As in Latimer , the police Plan was not to arrest the appellant. Indeed, the Plan did not contemplate an arrest unless the appellant obstructed the police or was in possession of a gun or drugs. Det. Leahy told P.C. Brisebois and D.C. Lee that the appellant was arrestable but instructed that he “not be arrested” for criminal organization and gaming offences. In addition, he instructed the officers not to pursue the appellant if he fled. [76] P.C. Brisebois testified that he did not arrest the appellant and that part of the ruse was to put him under investigative detention and then search the car. [77] So from the police perspective, clearly there was no intention to arrest the appellant nor did they formally do so. In addition, there was no intention to tell the appellant that he was under arrest and the officers did not do so. As seen from Latimer , however, the absence of an intention by the police to arrest and the failure to advise the appellant that he is under arrest are not fatal. To reiterate, in addition to what he was told, what counts is “the substance of what the accused can reasonably be supposed to have understood”: see Evans , at p. 888. [78] The appellant did not testify on the voir dire . That said, his circumstances were very different from those of Mr. Latimer. He was no ingenue as far as the criminal justice system was concerned. Det. Leahy testified that he believed that the appellant was educated in the area of police techniques and counter surveillance, and he was someone Det. Leahy believed would possibly know his rights. D.C. Lee also testified as to the appellant’s sophistication. [79] P.C. Brisebois testified that the appellant was told he was under investigative detention. Indeed, P.C. Brisebois was told to use those words. In cross-examination, he confirmed that he was going to convey as much as he could that the appellant was not under arrest. The appellant refused to get out of his car and told P.C. Brisebois that he needed a warrant. P.C. Brisebois gave him “two options”: investigative detention or arrest for obstruction. The appellant chose not to be arrested and instead submitted to an investigative detention. He exited his vehicle, and he and P.C. Brisebois made their way to the police cruiser. It follows that having chosen not to be arrested for obstruction, he would have reasonably understood that he was under investigative detention rather than arrest. Although he was cuffed and sat in the police cruiser for a number of hours, viewed reasonably, one would expect that the appellant would take the police at their word that he was under investigative detention and not under arrest. D.C. Lee also recorded in his notes that “Brisebois placed Bielli under investigative detention”. He also told Mr. Lockyer that P.C. Brisebois had placed the appellant under investigative detention. [80] The police gave the appellant an option and he chose investigative detention. The police planned not to arrest the appellant and they executed that plan. Considering the evidence as a whole, there was no de facto arrest. Again, the test turns on what the accused can reasonably be supposed to have understood. The application judge’s finding that the appellant knew he was under arrest cannot be reconciled with his factual finding that the police told the appellant that if he complied with the search, he would not be arrested. The application judge did not explain why, in light of the option the police gave the appellant, he would have believed himself to be under arrest. In conclusion, I agree with the appellant that the application judge’s finding that there was a de facto arrest was unreasonable and that the search was not incident to arrest. As such, the search was unlawful. The application judge erred in finding that there was no s. 8 breach. (c) Did the application judge err in his s. 24(2) Charter analysis? [81] In determining whether evidence should be excluded under s. 24(2), the court is to consider (i) the seriousness of the Charter -infringing state conduct; (ii) the impact of the breach on the Charter -protected interests of the accused; and (iii) society’s interest in an adjudication of the case on the merits: see R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. If the application judge considered the proper factors and has not made any unreasonable finding, the decision is owed considerable deference on appeal: see Grant , at para. 86; R. v. Côté , 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44; and R. v. Mian , 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77. [82] In light of my conclusion on s. 8, the Grant factors must be reassessed and the balancing of the factors reconsidered. However, as I will explain, quite apart from the s. 8 breach, I would also conclude that the s. 24(2) decision should not survive scrutiny. (i) Background and General Principles [83] At its heart, this case involves the planned and deliberate violation of the Charter . The Crown attorney, Mr. Sabbadini, advised the police that a general warrant would not be granted because the appellant would not be advised of his jeopardy. Put differently, the proposed plan would not legally justify the granting of a general warrant. The police did not pursue a general warrant. Rather, based on their reading of Dibble which served as their legal anchor and which involved breaches of ss. 10(a) and 10(b) of the Charter , they pursued a Plan which they knew would result in a Charter violation. This was not an incidental violation; it formed part of the Plan itself. The Plan, as formulated, anticipated a breach of the Charter . [84] Section 10 of the Charter provides that everyone has the right on arrest or detention: (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right. [85] Section 10 ensures that people have a chance to challenge the lawfulness of an arrest or detention. Police are to advise promptly the reasons for the arrest or detention, and individuals then have the right to receive legal advice about their situation from counsel. The information provided pursuant to s. 10(a) serves to inform the advice provided as a result of the invocation of s. 10(b). If the information is inaccurate, it taints the ability of counsel to give meaningful and responsive advice. [86] In this case, even though the police took steps to attenuate the prejudice to the appellant by facilitating the right to counsel and by at least planning not to question the appellant (even though they ultimately did do so), their approach ignores the foundation of the s. 10(a) right. As McLachlin J., as she then was, said in Evans , at pp. 886-87: The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to arrest if one does not know the reasons for it. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter . As Wilson J. stated for the Court in R. v. Black , [1989] 2 S.C.R. 138, at pp. 152-153, “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right. [Citation omitted.] (ii) Positions of the Parties [87] The appellant advances three arguments in support of his position that the application judge erred in his s. 24(2) analysis. First, he submits that the application judge placed excessive weight on the cases on police ruses, and in any event, these cases were all distinguishable. Second, he submits that the application judge erred in finding that the police conduct in designing and implementing the ruse was indicative of good faith when in fact, the conception and execution of a Plan designed to deliberately violate the appellant’s rights were indicative of bad faith. Third, he made errors in his analysis of the impact of the breaches on the Charter -protected interests of the appellant. [88] The Crown submits that the principles from the ruse case law relied upon supported the application judge’s conclusion, including that the seriousness of the breach can be mitigated by the motivation of the police to protect an ongoing investigation. The application judge engaged in a fact-specific analysis into the seriousness of the breaches. The finding of good faith is entitled to deference and supported by the evidence. As to impact, the appellant was only briefly questioned after he had spoken with counsel and only to assist with completing a form. The police had reasonable grounds to arrest and search at the time of the stop and the evidence would have been discovered regardless. In addition, the application judge correctly observed that informing the appellant about the offence of proceeds of crime for which he was being investigated mitigated the seriousness of the breaches. (iii) Reliance on Ruse Authorities [89] The appellant’s first argument was that the application judge relied excessively on cases involving police ruses that were distinguishable and that this infected his s. 24(2) analysis and more particularly, his treatment of the seriousness of the Charter -infringing conduct. At para. 70 of his reasons, the application judge concluded that the use of the ruse was a legitimate policing technique: In summary, in my view, the operational plan developed by the police in this case was a legitimate policing tool designed and implemented by them based on this well-recognized existing line of judicial authority. [90] The cases relied upon by the application judge that constituted the “well-recognized existing line of judicial authority” were Dibble , Grant and Campbell , and Whipple . He also referred to the oft-quoted dicta of Lamer J. in the pre- Charter decision of Rothman v. The Queen , [1981] 1 S.C.R. 640, at p. 697, to the effect that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. [91] In Dibble , the police were engaged in a Guns & Gangs Task Force investigation. Mr. Dibble was not a target. However, he was observed leaving a building with a gym bag suspected to be holding illicit drugs and getting into a car with a driver. One of the surveillance officers immediately contacted the OPP to stop and search the car but to avoid divulging the reason for the search, they were asked to create a false reason for the search. The car was stopped and the police told Mr. Dibble and the driver that this was due to a radar detector signal. On searching the car, including the gym bag, the police found cocaine. Mr. Dibble was then arrested for possession of cocaine for the purpose of trafficking. [92] Relying on alleged violations of ss. 8, 10(a), and 10(b) of the Charter , Mr. Dibble applied for an order excluding the evidence of the search pursuant to s. 24(2). Croll J. reasoned that Mr. Dibble did not have a reasonable expectation of privacy in relation to the vehicle or the gym bag, but she went on to consider whether the search was reasonable. She determined that this was a continuing and dynamic investigation and the police had grounds to believe that Mr. Dibble was in possession of cocaine. As such, there was no s. 8 breach. The Crown conceded a s. 10(a) and a s. 10(b) breach. In considering s. 24(2), Croll J. stated that the police did not comply with the s. 10 requirements but did so “to protect the investigation and not to intentionally circumvent Mr. Dibble’s section 10 rights”. The police did not ask any questions about the drugs or take advantage of his lack of access to counsel. Given the nature of the ongoing investigation, the breaches were minor and made in good faith. She also found in favour of the Crown on the other two lines of inquiry under Grant . As such, Mr. Dibble’s application was dismissed. [93] In Grant and Campbell , relying on ss. 8, 10(a), and 10(b) of the Charter , the two accused argued that they were subjected to unlawful searches of their persons and vehicle and were not promptly advised of the reasons for detention or arrest or provided with their rights to counsel. They sought an order excluding evidence of two prohibited firearms pursuant to s. 24(2) of the Charter . The police had information from a confidential informant that individuals would be attending a certain nightclub, carrying firearms, on the night in question. Based on surveillance of the area outside the nightclub that night, the police believed that one of the two accused had placed a firearm in a vehicle. The police were not going to let the vehicle travel far from the nightclub without stopping it but given public safety concerns for people around the nightclub, they did not want the interaction to take place in the parking lot. The police plan was to stay with the vehicle and later effect an arrest when it was safe to do so; the only question was where and how to effect the arrest safely. [94] After allowing the vehicle to leave the nightclub area and travel a short distance, the police stopped the vehicle for two purposes: the criminal firearms investigation and evident seat-belt infractions under the Highway Traffic Act . However, the police only told the occupants of the vehicle, including the two accused, of the Highway Traffic Act infraction. This was thought to be safer and would allow for a more controlled stop and interaction. The police told the occupants they were detained, walked them to the police scout car, conducted pat-down searches, searched the vehicle, and found a firearm. The police then informed the occupants that they were under arrest for possession of a firearm and advised them of their rights to counsel. The police subsequently found a second firearm in the vehicle. [95] Campbell J. found that there was a de facto arrest when the police first stopped the vehicle and had the accused exit the vehicle. This permitted the police to conduct searches of the occupants and the vehicle as incident to the arrest in an effort to discover the firearm that the police honestly and reasonably believed was in the vehicle. Campbell J. accepted the evidence of the police that they always intended to arrest the occupants of the vehicle as soon as they could do so safely. The fact that the search and seizure preceded the arrest by a few minutes did not mean that it was not incidental to the subsequent formal arrest. He found no s. 8 violation but did find both s. 10(a) and s. 10(b) violations. However, he found that compliance with s. 10(a) took place about three minutes after it should have and the delay was motivated by a continuing police concern over the whereabouts of the firearm reasonably believed to be inside the vehicle and by an interest in gaining control over it. As such, the s. 10(a) breach was not a serious breach. It was technical, very short-lived, and committed honestly and in good faith. The second and third prongs of the Grant s. 24(2) analysis also favoured the Crown’s position. Accordingly, the evidence was admissible. [96] These two cases are materially different from that of the appellant. First, the Charter breaches in those cases were not planned in advance. Second, the ruses in those cases developed in dynamic circumstances. The police conduct was immediately responsive to the circumstances that presented themselves. Both Dibble and Grant and Campbell involved spur-of-the-moment decision making by the police, not a planned, intentional violation of the Charter as occurred here. The cocaine in Dibble and the firearm in Grant and Campbell were dangerous contraband that could cause harm to the public, and the conduct in Grant and Campbell was motivated by safety concerns. Here, there was no urgency to the alleged de facto arrest. Moreover, the s. 10(a) breaches in Grant and Campbell were momentary, and the accused were advised of the real reason for their arrests within just a few minutes, unlike this case. The accused in Dibble was similarly advised of the real reason for his arrest not long after he was stopped, and before he was afforded access to counsel. [97] The police conduct in Whipple also differed from that in this case. There the police had obtained a general warrant that authorized the police to use a ruse to effect a traffic stop. As in Dibble and Grant and Campbell , the accused was advised of the real reason for his arrest within minutes of the vehicle stop. In addition, unlike the application judge, I do not read Whipple as authorizing police conduct that intentionally breaches s. 10(a). The Alberta Court of Appeal expressly concluded that the warrant did not authorize a breach of s. 10(a) and in any event, there was no breach of s. 10(a). This is in contrast to the case under appeal: the police both planned to breach s. 10(a) and actually breached s. 10(a) as planned. Furthermore, here, the Crown attorney, Mr. Sabbadini, had previously advised Det. Leahy that a warrant would not be granted because the appellant would not know the full scope of the jeopardy he was in. [98] In Evans , Sopinka J. stated in concurring reasons, at p. 875, that the purpose of s. 10(a) is “ inter alia , to enable the person under arrest or detention to immediately undertake his or her defence, including a decision as to what response, if any, to make to the accusation.” The accused in Dibble , Grant and Campbell , and Whipple could undertake their defences shortly after their detentions or arrests whereas here, the appellant was not informed that he was under investigation for possession of proceeds of crime until nearly an hour into his detention and was not charged for over another two months. [99] Contrary to the conclusion of the application judge, the Plan developed by the police in this case was not based on “a well-recognized existing line of judicial authority”. As explained, the police conduct in those cases was materially different from that engaged by this appeal. Those cases do not support the police conduct in issue. The application judge’s finding that the police in this case had engaged in a legitimate policing technique was an error and infected his analysis of the first prong of Grant . (iv) Good Faith Conduct [100] Second and as mentioned, the appellant submits that the application judge erred in finding that the police acted in good faith. He argues that, to the contrary, the conception and execution of a plan designed to deliberately breach the appellant’s rights was indicative of bad faith. Det. Leahy knew that a traffic stop ruse was unlawful, there was no urgency to the operation, and he designed the Plan in a way that would ensure that the appellant would remain ignorant long after the operation was completed. The Crown submits that the application judge’s finding of good faith was open to him on the record and is entitled to deference. [101] In assessing the seriousness of the infringement of the appellant’s ss. 10(a) and 10(b) rights, the application judge found that the violation was plain and serious but resulted from good faith police work based on the line of judicial authority including Dibble which permitted the police to conduct such a deceptive ruse in order to preserve the integrity and secrecy of a larger police investigation. Moreover, he concluded that there was no need for the court to disassociate itself from this conduct. [102] In Dibble and Grant and Campbell , the accused were arrested shortly after their initial detention and could undertake their defence immediately; not so here. In addition, Det. Leahy had familiarized himself with Dibble and knew that the timing in Dibble differed from his conceived ruse. He also knew from Mr. Sabbadini, the Crown attorney, that a general warrant would not be granted for a plan where the police would “stop his car for a Highway Traffic Act offence and search his vehicle and just take the evidence” because the appellant would not know the full scope of his jeopardy. The plan in support of a general warrant was considered to be unlawful. Nonetheless, on discovering the Dibble decision, Det. Leahy made no further inquiries of Mr. Sabbadini and instead proceeded with a plan that would necessarily result in a Charter breach. Indeed, the breach was an integral part of the ruse. The breach was planned and deliberate. Dibble did not depend on an absence of any Charter breach; rather it depended on a s. 24(2) rescue. This would have been evident to Det. Leahy, P.C. Brisebois and D.C. Lee, all of whom testified to having read the decision. The application judge failed to consider the reasonableness of the police reliance on Dibble and how the facts in that case differed from the Plan they were pursuing. [103] In addition, as argued by the appellant, there were no pressing or exigent circumstances here. To use Det. Leahy’s terminology, the excuse for the stop was “practical”. There was no evidence of urgency nor was this a spontaneous police response. Indeed, the police already had plans to conduct a takedown at the annual Super Bowl party a few months later. As stated by Michelle Fuerst J., Fairburn J. (as she then was), and Scott Fenton in “‘Ruse’ Traffic Stop for the Purpose of Conducting Search Incident to Arrest (Two Months Prior to Arrest) is Charter Compliant”, Police Powers Newsletter 2017-1 (January 2017), “it was a strategic mid-investigation decision designed to benefit the investigation at the intended cost of breaching the [appellant’s] rights.” Although I acknowledge that deference is owed to an application judge’s finding of good faith, the finding in this constellation of facts was unreasonable. [104] As a result of my conclusions and given that it is necessary to conduct the Grant analysis anew, there is no need to address the appellant’s third argument on the impact of the breaches on the Charter -protected interests of the appellant. The appellant had submitted that the application judge erred in minimizing the impact of the s. 10 breaches based on the fact that the police provided semi-accurate information partway through the ruse and had also argued that the application judge erred in concluding that the impugned evidence was discoverable in any event regardless of the premeditated breach of his Charter rights. In light of the s. 8 breach and the other s. 24(2) errors I have found, it is unnecessary to consider these arguments. Even accepting the application judge’s findings on these points, as I will explain, on a fresh Grant analysis, the evidence should be excluded. [105] In conclusion, quite apart from the s. 8 breach, there were errors in the application judge’s s. 24(2) analysis. (v) Fresh Charter s. 24(2) Analysis [106] Due to my determination that there was a s. 8 violation, which the application judge did not find, coupled with those of ss. 10(a) and 10(b), it now falls to me to conduct a s. 24(2) Charter analysis. As I have explained, it is unnecessary to address the appellant’s arguments regarding the expanded impact of the s. 10 breaches, because even on the application judge’s more limited findings, the evidence should be excluded. [107] First, regarding the seriousness of the Charter -infringing state conduct, as I have explained, the police were not relying on a well-established line of authority when they engineered this ruse. On the contrary, the police proceeded with a Plan which they knew or should have known would breach the appellant’s s. 10 rights. The fact that the police also planned to search the appellant incident to arrest without actually arresting the appellant makes the state conduct all the more troubling. The violation of the appellant’s Charter rights was integral to the police Plan. They would not have proceeded with the Plan had it not involved violating the appellant’s Charter rights. [108] I would also add that the police conduct is elusive of public confidence and ought not to be sanctioned by the court. Put differently, and adopting the language of McLachlin C.J. and Charron J. in Grant , the court should dissociate itself from such police conduct. I fail to see how the police conduct in this case does not threaten the integrity of the criminal justice system. Protection of Charter rights is the operative principle, not planned circumvention for investigative purposes however laudable they may be. [109] Second, the impact on the appellant’s Charter -protected interests was significant. He was subjected to a search without lawful authority. The appellant was, at least initially, unable to have a meaningful consultation with counsel because the police left him in ignorance of his full jeopardy. His counsel was equally misled about the reason for his detention. Assuming the application judge correctly concluded that the impact of the breach was somewhat mitigated by the semi-accurate information the police provided partway through the ruse, in light of the s. 8 breach, the impact remains serious. I acknowledge that the police attempted to mitigate the impact of the breach by affording the appellant access to counsel, but those steps fall short given that he was misinformed. This factor favours exclusion. [110] Finally, I accept, as the application judge did, that the third Grant factor, society’s interest in an adjudication of the case on its merits, weighs in favour of admitting the evidence. The weight of this factor is somewhat attenuated because, as the application judge found, while important, this evidence is not crucial to the Crown’s case. [111] For these reasons, I would exclude the impugned evidence under s. 24(2) of the Charter , allow the appeal from conviction and order a new trial. (2) Appeal from Sentence [112] Under the circumstances, there is no need to address the appellant’s request for leave to appeal sentence and to admit fresh evidence or the Crown’s responding fresh evidence in support of the sentence appeal. E. Disposition [113] For these reasons, I would dismiss the application for the admission of fresh evidence on the conviction, allow the appeal from conviction, and order a new trial. Released April 9, 2021 "S.E.P." "S.E. Pepall J.A." "I agree. K. van Rensburg J.A." "I agree. David Brown J.A." [1] Det. Leahy stated that the appellant’s vehicle could be searched incident to an investigative detention if the officer saw a weapon in the vehicle. This did not become an issue. [2] P.C. Brisebois could not recall whether he said obstruct police or obstruct justice. [3] The application judge’s reasons are reported at 2016 ONSC 6866, 367 C.R.R. (2d) 219.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Biya, 2021 ONCA 171 DATE: 20210319 DOCKET: C66597 Watt, Benotto and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Abadula Biya Appellant Najma Jamaldin, for the appellant Jeremy D. Tatum, for the respondent Heard: March 3, 2021 by video conference On appeal from the conviction entered on August 8, 2018 and the sentence imposed on December 14, 2018, with reasons reported at 2018 ONSC 6887, by Justice Carole J. Brown of the Superior Court of Justice. REASONS FOR DECISION Introduction [1] The appellant, Abadula Biya, appeals his conviction and sentence for charges relating to the unauthorized possession of a firearm and ammunition, possession of a Schedule I controlled substance (MDEA) for the purpose of trafficking, and possession of the proceeds of crime in the amount of $1,725 . [2] The appellant’s main argument on the conviction appeal is that the trial judge materially misapprehended the evidence in rejecting the appellant’s third party suspect defence. The appellant claims this error leaves the trial judge’s reasoning on which the conviction depends on unsteady ground, resulting in a miscarriage of justice. [3] We agree with the appellant. For the reasons that follow, we allow the appeal, quash the conviction, and order a new trial. Background [4] On September 11, 2015, the police received a tip that a person was selling drugs outside a Drake concert at Ryerson University. The person was described as a black male with cornrows, wearing a black t-shirt, and carrying a bouquet of flowers and a red and black GoodLife gym bag. [5] Police officers located a person matching this description talking to two other men at a gas station. The police watched the three men and noticed that when a mounted police unit approached the area the men slinked back into the gas station. When a second mounted police unit approached, the men retreated further and entered a Honda SUV parked at the gas station. The appellant had the gym bag and bouquet with him when he entered the driver’s seat of the Honda. The officers did not see who had control of the gym bag after the three men entered the Honda. [6] A group of uniformed police officers and two plainclothes officers huddled for between one to two minutes about 30 metres from the Honda. The men inside the Honda could see the officers. The police believed the men inside the Honda noticed the officers approaching when they were 5 to 10 metres away. The officers could see the appellant, who was in the driver’s seat, and Simeon George-McCool, who was in the front passenger seat. They could not see Jevon Moore, who was in the back seat directly behind George-McCool. The appellant’s gym bag and flowers were also in the back seat directly behind the appellant. [7] Six uniformed officers rode their bicycles towards the Honda. This took about 30 to 40 seconds. As the police approached they saw the appellant appear nervous and wide-eyed. He shoved his hand between the door and the seat and then into the pockets of his pants. An officer also saw George-McCool in the front passenger seat appearing to move quickly and looking towards the back seat. But the officers could not see Moore in the back seat. [8] Two officers approached on the driver’s side and smelled marijuana. Based on that smell and the appellant’s apparent nervousness, the occupants were arrested and directed to get out of the car. Moore and George-McCool got out voluntarily and complied with the police. The appellant did not comply and was forcibly removed. He resisted arrest but was quickly subdued. [9] The police searched the three men incident to arrest. On George-McCool the police found cocaine, marijuana, and MDMA in the bag he was carrying as he got out of the car, three cellphones, and $1,070 in cash. On Moore the police found $1,080 in cash but no drugs or drug packaging. On the appellant the police found packaged marijuana and $1,725 in cash. In the driver’s seat area the police found a cellphone and a digital scale. [10] The police searched the gym bag incident to arrest and at the bottom of the bag found a handgun, ammunition, a bottle of MDEA pills, and packaging like that used in the packaged marijuana found on the appellant. They also found some of the appellant’s personal items, including two condolence cards (the appellant was going to a funeral visitation for a friend’s mother later that night). [11] All three men were charged with various offences. The charges against Moore were later withdrawn before trial. The Trial Judge’s Decision [12] The appellant and George-McCool were tried together. [13] The trial judge convicted George-McCool of possession of cocaine and MDMA for the purpose of trafficking. The trial judge inferred from the quantities of drugs he had in his bag as he got out of the car that the drugs were in his possession for the purpose of trafficking rather than personal use. George-McCool did not appeal his conviction. [14] Neither the appellant nor Moore testified. The appellant did not dispute he had knowledge and control of the marijuana found on his person, but he did dispute any knowledge of or control over the gun, magazine, and pills in the gym bag. His defence centred on Moore as a third party suspect. He posited that Moore had one to two minutes in the back seat to place the contraband in the bag while the officers huddled across the street and then approached the car in plain view of the three suspects. He claimed that Moore had on his person a quantity of cash consistent with drug trafficking but no contraband because he had stashed it in the gym bag. The appellant also adduced Moore’s criminal record for gun and drug trafficking offences to show his propensity as a third party suspect. [15] The trial judge rejected the appellant’s third party suspect defence and convicted the appellant. She found that Moore did not have the time to remove the magazine from the handgun and to stow the handgun, magazine, and bottle of pills at the bottom of the bag. She also found that Moore did not have the opportunity and propensity to have had the firearm, ammunition, and pills on his person and to have put them surreptitiously in the gym bag as the police approached. She found there was no real evidence for this proposition, which she found was speculative. Finally, the trial judge found overwhelming evidence that the appellant had knowledge of and control over the contraband in the gym bag. She noted that the packaging in the bag resembled the packaging of the marijuana found on the appellant; the condolence cards were for a visitation the appellant was to attend that evening; the appellant had been seen carrying the gym bag; drugs such as MDEA are often sold at concerts, where the appellant was arrested; and the cash found on the appellant was in smaller denominations. [16] The trial judge sentenced the appellant to four years’ incarceration, less credit for pre-trial custody and bail conditions, and various ancillary orders. [17] The appellant now appeals his conviction and seeks leave to appeal his sentence. Discussion [18] Although the appellant advances several grounds of appeal from conviction and sentence, we have concluded that the appeal should be allowed because the trial judge materially misapprehended the evidence in concluding that Moore lacked enough time to remove the magazine from the gun and place it in the gym bag. The trial judge then repeated this error in concluding that Moore did not have the propensity and opportunity to have placed the contraband in the bag. These errors led the trial judge to conclude erroneously there were no reasonable possibilities inconsistent with the appellant’s guilt: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37. [19] The uncontradicted evidence was that the police huddled for one to two minutes and then took another 30 to 40 seconds to bike to the car, all while in plain view of the car’s occupants. The elapsed time was therefore between 1 minute 30 seconds and 2 minutes 40 seconds, during which the police could not see Moore because he was in the back seat. [20] The trial judge explained her reasons for concluding that Moore did not have enough time to stow the contraband in the gym bag as follows: I am not satisfied that it would have been possible within the timeframe from the police approaching the vehicle to Mr. Moore and Mr. George-McCool exiting the vehicle, for Mr. Moore to have taken all the items from his person and put them in the bag, and particularly taking the magazine out of the handgun and stowing the handgun, ammunition, and drugs at the bottom of the bag under all of the other contents. I do not find this to be feasible and reject this argument. [Emphasis added.] [21] However, there was no evidence before the trial judge as to how long it would have taken to remove a magazine from a gun, or this magazine from this gun. There was also no evidence that the magazine was even in the gun and needed to be removed. The trial judge therefore misapprehended the evidence on this point. [22] The Crown concedes that the trial judge misapprehended the evidence but contends the misapprehension was not material. The Crown asserts that even if this finding is excised, the other evidence the trial judge relied on allowed her to conclude that Moore had insufficient time to put the contraband in the gym bag. [23] We do not accept this submission. The trial judge herself highlighted that her conclusion was based “particularly” on the lack of time to remove the magazine from the gun. Her own wording suggests this error about the substance of the evidence was material to her reasoning in rejecting the third party suspect defence. Striking this error in the assessment of the evidence from the judgment leaves the trial judge’s reasoning on which the conviction depends on unsteady ground, leading to a miscarriage of justice: see R. v. Lohrer , 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Sinclair , 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; and R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541. [24] The trial judge repeated this error in concluding that Moore did not have the opportunity and propensity to have surreptitiously placed the contraband in the bag as the police huddled and approached the car. She stated: It is the position of [counsel] on behalf of [the appellant] that the police had huddled with [one of the other police officers] for one to two minutes before they approached the car, and that the lapse of time was sufficient for Mr. Moore to have taken the seized items from his person and put them into the gym bag in the back seat behind the driver’s seat. As set forth above, I do not accept the arguments of counsel for [the appellant], which suggests that Mr. Moore had the opportunity and propensity to have had the firearm, ammunition, and drugs on his person and put them surreptitiously into the gym bag when the police approached the vehicle. There is no real evidence for this, and I find the proposition to be speculative. I reject the submission . [Emphasis added.] [25] The trial judge did not separately address Moore’s opportunity and propensity. She seems to have rejected the appellant’s third party suspect defence only because she found that Moore lacked opportunity. [26] However, Moore’s criminal record provided a reasonable basis to claim he had the propensity to have placed the contraband in the gym bag: see R. v. Arcangioli , [1994] 1 S.C.R. 129, at p. 141; R. v. Tomlinson , 2014 ONCA 158, 207 C.C.C. (3d) 36, at para. 76. His criminal record included several recent firearms and drug-related convictions: for robbery with a firearm in 2012; possession of a Schedule I substance in 2014; possession of an unauthorized firearm, breach of a firearm prohibition order, and possession of a Schedule I substance in June 2014; possession of an unauthorized firearm and breach of a firearm prohibition order in July 2014; and trafficking in a Schedule I substance in 2015. The trial judge thus erred in summarily rejecting the third party suspect defence. Conclusion [27] The trial judge erred by convicting the appellant based on a material misapprehension of the evidence about Moore’s opportunity as a third party suspect. There was also evidence that Moore had the propensity as a third party suspect, which the trial judge failed to address. The trial judge’s errors leave the conviction on unsteady ground and resulted in a miscarriage of justice. [28] Because there was evidence on which a properly instructed trier of fact could reasonably have convicted the appellant, the appropriate remedy is to order a new trial on all counts under s. 686(2)(b) of the Criminal Code , R.S.C. 1985, c. C-46: see Morrissey , at p. 540. There is no need to address the appellant’s request for leave to appeal the sentence. Disposition [29] The appeal from conviction is allowed, the appellant’s conviction is quashed, and a new trial is ordered on all counts. “David Watt J.A.” “M.L. Benotto J.A.” “M. Jamal J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. WARNING THIS JUDGMENT REFERS TO AN OFFENCE UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 111(1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a)     is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b)     is guilty of an offence punishable on summary conviction. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Booth, 2021 ONCA 80 DATE: 20210205 DOCKET: C68094 Huscroft, Miller and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Appellant and Caelan Booth Respondent Emily E. Marrocco, for the appellant Mark C. Halfyard and Chris Rudnicki, for the respondent Heard: November 6, 2020 by video conference On appeal from the sentence imposed on February 4, 2020 by Justice Jennifer Broderick of the Ontario Court of Justice. Huscroft J.A.: OVERVIEW [1] Caelan Booth, the respondent, was convicted of sexual assault and breach of a youth probation order. The assault included intercourse he forced on a woman who was asleep. The assault was brief but ended only when someone turned on a light in the bedroom where the assault was occurring. [2] The respondent was 19 years of age when he committed the offence. He was on probation for a sexual assault he committed less than two years earlier. That sexual assault also included intercourse. [3] The sentencing judge sentenced the respondent to 18 months’ imprisonment for the sexual assault and 30 days concurrent for the breach of probation, and put him on probation for a two-year period. [4] For the reasons that follow, I conclude that the sentence was demonstrably unfit. The appropriate sentence was three years, as sought by the Crown. In the unusual circumstances of this case, I would not require the respondent to serve additional time in prison. However, I would vary the terms of the original sentence to increase the period of his probation from two years to three. BACKGROUND [5] The complainant, a 24-year-old woman, attended a house party along with several others, including the respondent. The complainant and the respondent had never met before the night of the assault. [6] The complainant and some friends left the house party to go to a bar, while the respondent and some of his friends went to a different bar. The complainant and respondent returned to the house at different times later that evening. At approximately 3:00 a.m. the complainant, who was intoxicated, went upstairs to sleep in the host’s bedroom along with several friends. The respondent followed the group into the bedroom but was asked to leave. He returned downstairs. [7] The complainant testified that she went to sleep on the bedroom floor and awoke sometime later to find a man on top of her. He was kissing and touching her. She was groggy and felt as though she was dreaming. She testified that the man told her to lay down and be quiet, but she did not recognize his voice or who he was. [8] The host, who was also sleeping in the bedroom, testified that he heard noises that seemed like sex. He turned a light on and saw the respondent, naked, rolling off the complainant, who appeared to him to be asleep. The trial judge found that the respondent penetrated the complainant’s vagina with his penis just before the light came on. The respondent was confronted by the complainant’s friends and forced out of the house, following which the police were called. The sentencing judge’s decision [9] The sentencing judge reviewed the complainant’s Victim Impact Statement, which described the emotional, physical, and economic impact of the offence on her. She felt distant from her friends, found it difficult to focus when school and work were difficult, and experienced anxiety and a feeling of a loss of autonomy. She had to take medication to prevent sexually transmitted infection, which made her feel ill, and incurred the expense of travelling in order to obtain that medication. [10] The sentencing judge then reviewed the circumstances of the respondent. She noted that he was completing a business administration and marketing diploma while working three part-time jobs, in addition to a seasonal position at a golf course. He was in a two-year relationship with a young woman who reported that he was respectful, caring, and supportive. The sentencing judge found that the respondent expressed remorse for the offence and that his pre-sentence report and character letter portrayed him in a very positive light. [11] The sentencing judge found that the case law distinguishes between acts of completed intercourse and penetration short of ejaculation. She characterized this as a case of momentary penetration but added that she did not want to minimize the impact of penetration on the complainant. [12] The sentencing judge rejected the Crown’s submission that the range of three to five years applied in the case of momentary penetration of an unconscious or sleeping victim. She referred to this court’s decision in R. v. Ghadghoni , 2020 ONCA 24, in which the complainant was penetrated for a brief period while asleep. The accused had no criminal record. In that case, Pardu J.A. stated, at para. 48, that “the usual range in past jurisprudence for sexual assaults committed in similar circumstances has been between 18 months and three years.” The sentencing judge adopted this as the appropriate range for this case. She stated that the primary objectives of sentencing in this case were denunciation, deterrence, and rehabilitation, but that denunciation and deterrence took precedence. She found that the prior conviction for sexual assault required the sentence to address specific deterrence and went on to consider aggravating and mitigating factors. [13] The sentencing judge considered three aggravating factors: 1) the prior and recent finding of guilt for sexual assault; 2) the fact that there was penetration; and 3) the impact of the offence on the victim. She considered six mitigating factors: 1) the respondent’s youth; 2) his good prospects for rehabilitation; 3) his hard-working character and contribution to the community; 4) his character traits of kindness, empathy, and loyalty; 5) his family and girlfriend’s support; and 6) his remorse. [14] Having identified a range of 18 months to three years, the sentencing judge considered whether anything justified a sentence outside of the range. She noted the serious nature of sexual assault, that it took place while the complainant was intoxicated and asleep, and that the impact on the complainant was significant. She found, further, that the respondent’s degree of responsibility was high. Although the respondent was under the influence of alcohol, he was not so intoxicated that did not know what he was doing. On the contrary, the respondent attempted to sexually assault the complainant without waking up others in the room. [15] The sentencing judge recognized that the respondent was not a first offender and that he was on probation for a prior sexual assault when he committed the offence. Despite the many aggravating factors in this case, the sentencing judge imposed a sentence at the bottom of the range she identified. She stated: Had [the respondent] not had a relatively recent prior conviction for sexual assault, I may have found it appropriate to impose a sentence outside of the lower end of the range of 18 months given the factual circumstances of the offence. His prior conviction, however, is an aggravating factor that I must consider in respect of the circumstances of the offender, and that in my view requires a sentence within the range set out. I am also mindful of the sentencing principle of restraint. The sentence should only be as long as is required to achieve the sentencing objectives of denunciation and deterrence, and further, the sentence must promote, rather than frustrate, [the respondent’s] rehabilitation. In my view, the sentence that takes into account all of the relevant factors and that will achieve denunciation and deterrence, and one that will not have a devastating effect on [the respondent’s] rehabilitation, is one at the very bottom of the range and that is 18 months imprisonment. ISSUES ON APPEAL [16] The Crown raises three arguments on the sentence appeal: 1. The sentencing judge erred when she found that the fact that the penetration was momentary was mitigating; 2. The sentencing judge erred in her consideration of the rehabilitative potential of the respondent and failed to properly account for his prior record; and, 3. The sentence was demonstrably unfit and did not reflect the gravity of the offence or the moral blameworthiness of the respondent. DISCUSSION [17] The principles governing the appellate review of sentences are not in dispute. In general, the decisions of sentencing judges are entitled to deference but an appeal court may intervene if: 1) the sentencing judge errs in law or in principle and that error has an impact on the sentence, or 2) the sentence is demonstrably unfit regardless of any error: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. [18] The Crown’s argument focuses on the sentencing judge’s treatment of the duration of the assault. In essence, the Crown argues that the sentencing judge minimized the harm caused by sexual assault involving penetration by emphasizing the brief duration of the assault committed by the respondent. [19] I agree that the some of the sentencing judge’s remarks can be read in this way. Although the sentencing judge was careful to state that she did “not wish to minimize the impact of penetration”, at several points in her decision she appears to do just that by emphasizing the “momentary” nature of the penetration. She also states that there was “no overt violence” by the respondent, which appears to overlook the inherently violent nature of the assault committed by the respondent. [20] Read in context, however, these remarks can be understood as distinguishing the facts of this case from the cases proffered by the Crown that involved longer, completed acts of vaginal intercourse and threats of violence. [21] Nevertheless, in my view the sentence imposed in this case is demonstrably unfit regardless of any error in law or principle and the appeal must be allowed on this basis. The sentence is demonstrably unfit [22] It is not necessary to reconcile what the Crown submits is conflicting case law concerning the appropriate range for sexual assaults involving intercourse with incapacitated complainants. The sentence imposed is demonstrably unfit regardless of any error identifying the range, for it does not satisfy the principle of proportionality: it is not proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Criminal Code , R.S.C., 1985, c. C-46. [23] The moral blameworthiness of the respondent is high. He sexually assaulted a victim who was extremely vulnerable – she was incapacitated by alcohol and unconscious. This is intolerable conduct that requires denunciation and general deterrence. [24] The fact that this is the respondent’s second conviction for sexual assault involving penetration emphasizes the need for specific deterrence. Thirteen months prior to committing the assault in this case, the respondent pleaded guilty to sexually assaulting a 15-year-old girl. The respondent was 17 years old at the time. These facts are taken from the transcript of his guilty plea. [1] [25] The assault occurred when the girl became separated from her friends at a large graduation party. She walked off with a boy, whom she knew, and the accused, whom she had never met. She described kissing and sexually touching both boys. She was intoxicated and was panicking. Eventually one or both of the boys removed her shirt against her will and she backed away. She fell to the ground and the respondent ended up on top of her. He penetrated her with his penis without her consent. [26] The respondent received a non-custodial sentence for this sexual assault – six months of deferred custody and an 18-month probation order. Plainly, this sentence failed to achieve the objective of deterrence as the respondent committed another sexual assault within 13 months of his first conviction, a mere six months into his probation. [27] What we have, in summary, is this: Despite the respondent’s relative youth, he is a repeat sexual offender. He committed a second sexual assault involving penetration against a vulnerable/intoxicated victim – a victim who was asleep at the time. These were significant aggravating factors, requiring a sentence that emphasized denunciation as well as general and specific deterrence. [28] Although the sentencing judge acknowledged the relevant considerations, with respect, she failed to accord them the significance they were due. On the contrary, she stated that, but for the respondent’s relatively recent conviction for sexual assault, she “may have found it appropriate to impose a sentence outside the lower end” of the 18-month to three-year range she identified as appropriate. [29] These remarks wrongly downplay the seriousness of the sexual assault committed by the respondent. Again, the offence involved intercourse forced upon a highly vulnerable woman. Yet, even though she acknowledged the need to address specific deterrence, the sentencing judge concluded that the respondent should be sentenced “at the very bottom of the range” in order to avoid a “devastating effect” on his rehabilitation. [30] The 18-month sentence that was imposed fails to reflect the fact that not only was this the respondent’s second serious sexual offence, but it was committed while he was on probation for having committed the first. The sentence is neither proportionate to the gravity of the respondent’s offence nor his degree of responsibility in committing that offence, as required by s. 718.1 of the Criminal Code . [31] Taking into account the mitigating factors as well as the aggravating factors, I agree with the Crown that a sentence of three years should have been imposed. However, the court is required to sentence the respondent having regard to the circumstances now obtaining. [32] The respondent has proffered fresh evidence in this regard. The Crown does not object to the admission of the fresh evidence but argues as to the implications of requiring the respondent to serve additional time in prison. [33] I would admit the fresh evidence. The fresh evidence [34] The respondent was released on parole on August 7, 2020, having served one-third of the 18-month sentence that was imposed. He is now employed full time and is working approximately 48 hours per week. He is re-enrolled in college and is working towards completing a diploma in business and marketing administration in the spring of 2021. [35] The respondent has attended counselling for alcohol abuse twice monthly as well as sexual offending on a weekly/biweekly basis and is seeing a personal therapist. His addiction counselor reports that the respondent has attended all scheduled appointments and presents as motivated to engage in his treatment. The executive director of the sexual accountability support program reports that the respondent is dedicated to the process and committed to making the personal changes required so that he will not reoffend. [36] The respondent notes that, as of the date of the appeal, he would have served the equivalent of over one-half of his original sentence, part in custody and part on parole. Assuming that he received the three-year sentence now sought by the Crown and would qualify for one-third release in the federal system, he would have had the equivalent of three months remaining on his sentence. However, the respondent argues that if he were reincarcerated, it is unlikely he would receive a parole hearing in time to obtain release following the service of one-third of the higher sentence, as he would have to be re-assessed and another parole hearing would have to be convened. The respondent argues that serving this additional period pending a parole hearing would constitute an undue hardship and that this is an appropriate case for staying the balance of any increased sentence imposed. [37] The Crown does not accept that the respondent’s ability to seek parole would be prejudiced by requiring him to serve additional time in the federal system and submits that he should be required to serve additional time. [38] In my view, although a three-year sentence of imprisonment should have been imposed by the sentencing judge, in light of the fresh evidence that sentence is no longer appropriate. Further incarceration of the respondent for a brief period is not required to achieve the goals of denunciation and deterrence. [39] The respondent is a young man. He has now completed a substantial portion of the sentence that was imposed by the sentencing judge, part in custody and part on parole. Importantly, he has made the most of the opportunity presented by his parole. The fresh evidence demonstrates that he has taken meaningful steps towards rehabilitation and reintegration into the community. These steps would be undermined if he were required to return to prison to serve additional time – time that would presumably be brief – before he would again be eligible for parole. [40] However, I do not accept the respondent’s submission that it would be appropriate to impose the three-year sentence sought by the Crown, only to stay the balance of that sentence and not re-incarcerate the respondent. If a three-year sentence were imposed, the probation order could no longer remain in place, as a probation order can accompany only sentences of two years or less: Criminal Code , s. 731(1)(b). [41] Although the respondent appears to be making progress on parole, it must be recalled that he breached the terms of a prior probation order. In these circumstances, I would vary the respondent’s sentence by increasing the period of his probation from two years to three, the maximum period of probation that is permitted. An additional year of the supervision afforded by probation is the best means of supporting his rehabilitation and reintegration into the community. CONCLUSION [42] I would grant leave to appeal sentence and admit the fresh evidence. [43] I would allow the appeal and vary the sentence to increase the term of the respondent’s probation from two years to three. I would otherwise leave the terms of the probation order and the other orders in place. Released: February 5, 2021 (“G.H.”) “Grant Huscroft J.A.” “I agree. B.W. Miller J.A.” “I agree. I.V.B. Nordheimer J.A.” [1] The respondent was a young person within the meaning of the Youth Criminal Justice Act , S.C. 2002, c. 1 when he committed this offence. Because his adult conviction was within the access period for the youth offence, the records relating to his youth offence are to be dealt with as records of an adult, which includes being available for publication: see YCJA , ss. 119(2)(h) and 119(9)(b). The transcript of the respondent’s guilty plea to the youth offence was sealed by the trial judge. The parties to this appeal agree that this was not required by the YCJA and that this court can unseal the transcript. By order dated January 21, 2021, this court ordered the transcript unsealed on consent.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Borel, 2021 ONCA 16 DATE: 20210112 DOCKET: C62693 Lauwers, Miller and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Mark Anthony Borel Appellant Philip Norton, for the appellant Philippe G. Cowle, for the respondent Heard: November 30, 2020 by video conference On appeal from the conviction entered by Justice Linda M. Walters of the Superior Court of Justice, sitting with a jury, on May 22, 2014, and from the sentence imposed on August 15, 2014. Nordheimer J.A.: [1] Mr. Borel appeals from his conviction for attempted murder. He also seeks leave to appeal the sentence of 19 ½ years imposed upon him. For the reasons that follow, I would allow the conviction appeal and order a new trial. As a consequence, I do not reach the sentence appeal. Background [2] In September 2010, the appellant and the complainant began an affair. The complainant was married and lived with her husband and her teenaged children. The appellant was not married and lived with the mother of his children in a platonic relationship. In December 2010, the complainant’s husband found out about the affair. The complainant told her husband that it was over, but in fact she continued the affair. The complainant, who had a drinking problem, began to drink more heavily. [3] At trial, the evidence of the complainant and the appellant differed as to the state of their relationship in July 2011. Each claimed to be the one trying to end it. On July 23, 2011, sometime around 6:00 pm, the complainant left her house telling her husband that she was going shopping and then to a friend’s house. The story was a lie. The complainant was actually going to meet the appellant. [4] The complainant and the appellant met in the parking lot of a community centre. The appellant arrived first. A little before 6:45 pm, the appellant called 911. When the police and EMS arrived, the complainant was lying on the ground in the parking lot very badly burned. The appellant and some passersby were with her. The complainant smelled of gasoline. [5] The appellant initially told the paramedic that he was driving past the community centre and noticed his friend in the parking lot. In contrast, he told the police officer at the scene that he did not know who the complainant was. He later told the police officer that he did know the complainant and that they had arranged to meet that evening. Later that evening at the police station, the appellant gave a videotaped statement to the police. Four days later, the appellant was arrested and charged with attempted murder. He then gave another, more detailed, videotaped statement to the police. Throughout his interactions with the police and others, the appellant consistently denied having doused the complainant with gasoline and setting her on fire. [6] At trial, the complainant gave evidence about her relationship with the appellant. According to the complainant, there were a lot of trust and jealousy issues. She said that the appellant started getting physically and verbally aggressive. She described an incident in October or November of 2010 where the appellant grabbed her around the neck and strangled her to the point that she could not breathe. In response, she kicked him. He then let go but grabbed her by the arms leaving bruises. [7] The complainant told her husband that the affair was over in December 2010 but it continued into 2011, although the complainant testified that it was getting “harder and harder to sneak around”. According to the complainant, the appellant was getting more aggressive and wanted her to leave her husband. [8] The complainant testified about a second violent incident sometime in January or February 2011 when she and the appellant were at a motel. She testified that the appellant took her phone and saw that she had been talking to a male friend. The appellant became jealous and aggressive and proceeded to smother her head and face with a pillow. [9] The appellant gave evidence at trial and denied that either of these violent incidents had occurred. The appellant testified that he did see marks on the complainant, who told him a few times that she was fighting with her husband. [10] In early 2011, the complainant got pregnant with the appellant’s child. She terminated the pregnancy in April. Following the abortion, she and the appellant stayed together in a hotel for a number of days. The complainant did not think she told her husband at the time about the pregnancy. She and the appellant also got similar tattoos in memory of the baby. Each testified that it was the other’s idea. [11] Following her abortion, the complainant kept seeing the appellant. The complainant testified that she cared for the appellant and was scared to leave because she knew there would be consequences. In May 2011, she suggested that they should end it. She said that the appellant seemed upset but accepting. Afterwards, however, the complainant received several emails from the appellant stating, “fuck you baby killer,” “you fucked with the wrong guy,” “wait till the real fireworks start,” and “I fucking hate you.” The appellant testified that they argued a lot, but it was mostly over the complainant’s excessive drinking. [12] Sometime in March to June 2011, the complainant told her husband that she did not love him anymore and that she wanted to move out. During the time after her abortion, the complainant drank heavily. She was depressed. The complainant once told her husband that she was going to take all the sleeping pills. Her husband thought that this was a dramatic gesture to make him feel guilty. [13] On July 23, 2011, the day of the incident, the complainant testified that she met the appellant at Rockway Community Centre. She left home around 5:50 pm. She had been drinking and admitted that it was possible that had she had alcohol in the car with her. The appellant was already present in the parking lot when the complainant pulled up at the community centre. They both got out of their cars and were standing in the parking lot. According to the complainant, the appellant told her that he had a “present” in his car for her. He proceeded to walk to his car and then walked back to her location with a black jug full of gas. The appellant started “swishing” the gas at the complainant. He took a match out of his pocket and threw it at her, setting her on fire. According to the complainant, the appellant stood there with his arms crossed and said, “fuck you bitch, you mess with the wrong people’s feelings and you’ll pay.” [14] The appellant acknowledged arriving at the community centre. He arrived first. When the complainant arrived, the appellant said that he knew right away that she had been drinking. The appellant said that he immediately got upset and asked her why she was drinking again. He told her that he did not want her driving to her friend’s home, which is where the complainant was intending to go after meeting the appellant. The complainant told the appellant that she could drive to the friend’s home on her own. The complainant and the appellant continued to argue about her drinking and driving. The appellant told the complainant that, if she refused to take a ride from him or call someone else, he was going to call the police. The appellant said that he had done this before. [15] The appellant went back to his car to make a call. He then heard a scream. This was approximately 10 minutes from the time the complainant had arrived at the community centre. He thought the complainant was just trying to get his attention. The appellant glanced over his shoulder and saw the complainant enter a trail that leads from the parking lot. She was screaming loudly. The appellant then ran to the trail and found the complainant lying face down and kind of rolling around. She appeared to be burning. The complainant rolled over. The appellant saw that she was burnt. He asked her “What happened? Who did this?” She was screaming and replied “nobody”. The appellant testified that it was horrifying and that he did not know what to think. He helped the complainant up and back to the parking lot and then called 911. [16] While waiting for the police to arrive, the appellant says that the complainant kept getting up and wandering towards the road. While waiting for the police, the complainant pleaded with the appellant not to tell the police who she was. The appellant repeatedly asked her: “Did someone do this to you? Did somebody attack you or something?” The complainant answered “nobody”. [17] Prior to the arrival of the EMS and the police, several people driving by stopped to assist. One testified that the appellant said he did not know the woman or know what happened. Another testified that the appellant said he did not know what happened and that he had made arrangements with the complainant to go hiking and that he arrived to find her in that state. A third testified that the appellant said that he did not know who did this and was supposed to meet the complainant. The appellant was on the phone to 911 while the on-scene witnesses were present. [18] The police and EMS arrived. The appellant told EMS that he had been driving by and noticed his friend in the parking lot. He told them that he knew her and told them her name. However, the first officer on scene said that he asked the people present, including the appellant, if they knew the complainant. Everyone, including the appellant, stated that they did not know who the woman was. The appellant testified he did this because of the complainant’s request, prior to the police attending, not to say her name. Upon being questioned by the same officer, the complainant also refused to tell him her name. The appellant later told the officer and EMS personnel the complainant’s name and that she was a friend of his and that they were supposed to meet there. He handed the officer a set of keys, a lighter and matches – telling the officer that they were in the complainant’s hand and that they belonged to her. He also told the officer that the complainant was not his girlfriend but had met up with her because she was an alcoholic needing support. [19] A five-hour search of the immediate area at the community centre by a number of police officers did not reveal any evidence of an accelerant container. An expert in the behaviour of gasoline and ignition source testified that if one swished gas in a backward motion (as described by the complainant), one would expect a transfer of gasoline onto that person’s clothes and shoes. One would also expect to find some gasoline on the ground. The appellant’s clothes (t-shirt and shorts) were tested for gasoline. They showed no traces of gasoline. There was no odour of gasoline around the appellant’s car. However, there was a strong odour of gasoline in the complainant’s car - gasoline was located on the driver’s seat of the complainant’s car, in her purse, and in a cup holder. [20] The appellant denied throwing gasoline on the complainant and setting her on fire. He was unsure how the fire was caused. He denied that he went to the location with the intention of harming the complainant. Issues [21] The appellant raises three issues on his conviction appeal: 1. The trial judge erred in erred in admitting opinion and demeanor evidence of the 911 dispatcher and in failing to give a limiting instruction to the jury regarding that evidence; 2. The trial judge erred in admitting opinion and demeanour evidence of the homicide detective, who conducted the second videotaped interview of the appellant, and in failing to give a limiting instruction to the jury regarding that evidence; and 3. The trial judge erred in admitting statements that the complainant made to EMS personnel during the ambulance ride to the hospital and in failing to properly instruct the jury as to the proper use of those statements. Law and analysis (1) The 911 dispatcher [22] In terms of the first ground of appeal, the 911 dispatcher gave evidence at trial. The Crown played the 13-minute 911 call. Then, following a few brief introductory questions, the Crown began his examination-in-chief by asking the dispatcher, given her experience: “was there anything unusual about this, about this particular [911] call.” The dispatcher testified that, in her opinion, the call she received from the appellant was “weird.” The dispatcher noted that the appellant initially stated that the patient was assaulted and then later in the call said she had been burned. Further, the dispatcher found it odd that if the appellant had just come upon the patient, who was unable to communicate, why would he not have just told her that the patient was burned rather than assaulted. [23] The dispatcher also told the jury that, in her opinion, while the appellant stayed at the scene, he “didn’t really help” or ask the patient any questions that the dispatcher needed answered. [24] The Crown then re-played the 911 call and asked the dispatcher to point out, in her opinion, “the point that [she] found unusual or troublesome.” Throughout the 13-minute recording, the dispatcher requested the tape be stopped several times. Each time she identified portions of it for the jury that she found unusual and troubling, including that the appellant gave answers to questions that he should not know without asking the patient and that it was weird that the appellant did not initially say the patient was burned. [25] Trial counsel did not object to the dispatcher’s evidence regarding her interpretation of the 911 call or her opinion as to the appellant’s actions or inactions. Trial counsel did cross-examine the dispatcher. [26] It is a fundamental principle of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact. It was improper for the Crown to elicit what was, in essence, opinion evidence as to the appellant’s truthfulness from the dispatcher because it is not proper for a witness to give an opinion about the credibility of any other witness: R. v. Marquard , [1993] 4 S.C.R. 223. [27] Much of the dispatcher’s evidence might have been elicited by the Crown in a proper fashion, by questions that avoided having the dispatcher express her opinions about the appellant. In other words, the Crown’s questions could have been restricted to asking the dispatcher factual questions as to what had occurred, leaving it to the jury to draw their own conclusions regarding the appellant’s actions. [28] The trial judge ought to have curtailed this line of questioning. She also should have instructed the jury on the use to which they could put the dispatcher’s evidence, including instructing them not to consider the dispatcher’s opinions. She should have reminded the jury that it was their job alone to consider and reach conclusions on the credibility of every witness. None of this was done. [29] That said, I do not view this error, by itself, as being serious enough to warrant a new trial, especially in light of trial counsel’s failure to object or request a jury instruction about it. The failure to object to inadmissible evidence or to request a jury instruction is not determinative, but it is relevant to the treatment of the objection on appeal: R. v. L.K ., 2020 ONCA 262, at para. 15. (2) The homicide detective’s evidence [30] As one of his last witnesses, the Crown called the homicide detective, from the Niagara Regional Police, who had conducted a three-hour interview of the appellant. In introducing the homicide detective to the jury, the Crown elicited evidence from him that he had worked as a police officer for 27 years and was assigned to the major crimes/homicide unit as an investigator. In his evidence, the homicide detective highlighted his extensive training with respect to interviewing and interrogating people in custody. He made a point of telling the jury that he had interviewed approximately 500 accused persons during his 17 years as a criminal investigator. Once again, the Crown did not seek to have the homicide detective qualified as an expert witness. [31] The homicide detective testified that, in preparation for the interview of the appellant, he had staged an area of the police station in which he set up a number of surveillance photographs on an investigation board in an office. Upon his arrival at the station, the appellant was placed in a seat adjacent to this staged room, where he could see the investigative photos for approximately 30 seconds, before he was moved to another location. According to the detective, the purpose of this technique was to project to the appellant that “an extensive investigation has taken place before his arrest.” [32] The Crown played the three-hour interview for the jury. Thereafter, the Crown’s very first question to the homicide detective was: “what did [he] find unusual about the video [interview of the appellant]?” The homicide detective responded that he found “three major things…unusual”: · First, the appellant’s “general demeanour and body language was inconsistent with someone in custody for attempt murder”; · Second, the appellant’s “version of events changed throughout the interview”; and · Third, the appellant’s “denials [about being involved in the crime] were relatively weak”. [33] The Crown then asked the homicide detective to expand on his opinion that the appellant’s denials were relatively weak. In response, the homicide detective said: From my experience and training, if someone’s in custody for an offence, a serious offence that they, that they did not commit, they would, they would likely be denying it strongly and asking why they’re in custody. [34] The Crown then played several clips from the interview. The Crown asked the homicide detective to comment on whether he could identify: (1) any internal inconsistencies within the interview and (2) any other inconsistencies by comparing the interview with other information the homicide detective knew about prior to interviewing the appellant. During this portion of his evidence, the homicide detective offered his opinion about the differences he identified in the appellant’s versions as ones that were “subtle, but…important.” [35] Trial counsel once again did not object to the homicide detective’s evidence. Nor did trial counsel cross-examine the homicide detective. Also, the trial judge did not question the route of admissibility of the homicide detective’s opinion evidence or provide the jury with directions as to its proper use, if any. [36] As was the case with the 911 dispatcher, this opinion evidence ought not to have been elicited by the Crown. However, unlike the evidence of the 911 dispatcher, this evidence could not have been properly elicited and it was highly prejudicial. As this court observed in R. v. Quazi , 2014 ONCA 94, at para. 7: We also observe that the trial judge permitted the jury to hear the opinion of another police officer who characterized the appellant's demeanour during his police interview as indicative of guilt. Such an opinion was irrelevant and should not have been permitted. Its intrusion into the trial record was highly prejudicial and contributed to the overall unfairness of the appellant's trial. [37] Demeanour evidence is, itself, “highly suspect”: R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27. For a jury to hear, from what appeared to them to be a highly experienced police officer, evidence that the appellant was, in essence, acting like a person who was guilty of the offence, was highly prejudicial. It was only made worse by the failure of the trial judge to give any form of limiting instruction on its use. The trial judge ought to have told the jury to ignore the detective’s opinions. (3) The EMS evidence [38] At trial, the Crown sought and received a pre-trial ruling permitting it to lead evidence of the complainant’s out of court statements to an EMS attendant, who was accompanied by two firefighters, in the ambulance that transported the complainant to hospital. The EMS attendant testified that the complainant had said that she did not want to die and that “he” had done this to her. The EMS attendant further testified that the complainant said it was unsafe to disclose the attacker’s name because she was worried “he” would hurt her family. [39] Notwithstanding the reluctance of the complainant to identify her attacker, the EMS attendant continued to press her on the subject. She did so by listing categories of people, such as aunt, uncle, husband, etc., who could have done this to the complainant. The EMS attendant said that the complainant nodded her head in agreement when the EMS attendant suggested “boyfriend”. She shook her head when asked about other people, including “husband”. While both firefighters, who were present in the ambulance, recalled the complainant saying that “he” did this to her, neither of them recalled the EMS attendant listing possible perpetrators nor did they remember the complainant’s positive response when “boyfriend” was mentioned. [40] At trial, the complainant had no recollection of the events in the ambulance. The trial judge ruled that her statements were admissible. [1] However, the basis for the ruling is confused. The Crown had sought admission of the statements (including the head nodding) pursuant to the principled exception to the hearsay rule, encapsulated in R. v. Khelawon , 2006 SCC 57, [2006] 2 S.C.R. 787, on two bases. One was that they formed part of the narrative. The other was to rebut a possible defence that the incident was the result of a suicide attempt or an accident. Towards the end of her reasons, the trial judge said: It is also important to note that the Crown is not asking that the statements be admitted for the truth of their content, but simply as part of the narrative as it unfolds, and in order to rebut any presumption raised by the defendant that this burning was accidental or caused by [the complainant] herself. [41] The problem with the trial judge’s acceptance of the Crown’s position is that it does not coincide with the actual purpose for admitting the evidence, at least on the second stated basis. Insofar as the evidence was being admitted to rebut accident or suicide, it could only achieve that purpose if the evidence was admitted for the truth of its contents, which would carry with it the risk that the jury would also use it as confirmation on the issue of identity. [42] There is another confusing aspect of the trial judge’s ruling. Early in her reasons, the trial judge held that the actions of the complainant, in shaking her head or nodding, were not statements, and thus were not hearsay. She said: “However, any actions observed by someone else, in this case, the emergency care personnel, are not hearsay, and [the EMS attendant] is free to testify about what she says she observed [the complainant] do.” Consequently, the trial judge held that those actions were admissible without any hearsay analysis. The respondent admits that this latter finding is clearly wrong. “Hearsay typically consists of spoken words. It can, however, consist of conduct.”: R. v. Badgerow , 2014 ONCA 272, 119 O.R. (3d) 399, at para. 106, leave to appeal refused, [2014] 3 S.C.R. v. The same point is made in Khelawon , at para. 34: “hearsay evidence includes communications expressed by conduct”. [43] Unfortunately, the issue became even more confused when it reached the stage of the instructions to the jury. The trial judge first told the jury that they had heard the evidence about the statements for the two purposes stated above but not “to prove that what she said is true, but only to establish that the statements were made”. However, only a short time later, the trial judge told the jury: If you decide that [the complainant] did make these statements, you may consider that evidence in deciding whether or not [the complainant] would have made these statements if her injuries were self-inflicted or occurred as a result of an accident. In determining how much or how little you will rely on this evidence, to help you decide this case, you may consider that it may be less reliable than other evidence that has been given. [The complainant] has no memory of this point in time. Accordingly, she was not subject to cross-examination on this issue. At the same time, you may consider whether there is any evidence to suggest a motive on the part of [the complainant] to lie to the emergency responders. It is evident that, at this point in her charge, the trial judge is clearly indicating to the jury that the evidence can be used for the truth of its contents. [44] Further, the critical piece of evidence arising from this issue is the evidence of the complainant apparently nodding in the affirmative when she was asked whether the attacker was her boyfriend. The trial judge did not isolate this piece of evidence in her instructions to the jury and, consequently, she did not give any cautionary instruction to the jury about its use, presumably because she continued to view it as direct evidence and not as hearsay. [45] Yet, this evidence went to the central issue of the identity of the attacker and was the evidence that carried with it the highest danger of misuse. This fact is important because evidence is admitted for a purpose, and that purpose must be clearly identified. Here the Crown was tendering the evidence that the complainant nodded her head in response to questions in order to prove the identity of the appellant as her attacker even though the Crown had the direct evidence of the complainant on this point. (a) The principled exception [46] As I have already said, the complainant’s statements, including the head nodding, were hearsay. Their admissibility ought to have been reviewed under the principles that apply to the admission of hearsay evidence. In the circumstances of this case, none of this evidence was admissible for either of the purposes it was offered by the Crown. More specifically, it was not admissible under the principled exception to the hearsay rule for the truth of its contents as a positive identification of the appellant as the complainant’s attacker. For that purpose, the evidence does not fit within the principled exception because the evidence does not meet the twin requirements of necessity and reliability. I would reject trial counsel’s concession and the trial judge’s conclusion that all of this evidence, including the head nodding, met the necessity requirement. I note that the trial judge separately concluded that the necessity requirement was established for the utterances. [47] The only purpose for admitting the specific evidence of the head nodding was to prove, or help prove, that the appellant was the person who committed the attack. However, it was not necessary for this evidence to be admitted for that purpose. While the complainant may not have remembered the events in the ambulance, as recounted by the EMS attendant, the complainant was available to give evidence about the actual event and she identified the appellant as her attacker. Indeed, she did so at the very first opportunity after she awoke from a coma that resulted from her injuries. There was, therefore, no need for this evidence to fill any evidentiary gap on that central point. Because the necessity requirement could not be met, the only purpose for admitting this evidence was as a prior consistent statement by the complainant to buttress her evidence as to the identity of her attacker. Prior consistent statements are presumptively inadmissible because they lack probative value: R. v. Stirling , 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7. (b) The narrative exception [48] My conclusion that this evidence, especially the nodding of the complainant’s head, was inadmissible hearsay is not altered by attempting to have it admitted as part of the narrative. The simple fact is that there was no need for this evidence to be admitted for that purpose. No part of outlining the narrative or chain of events for the jury required its admission. The only part of the narrative that was involved at this stage was the transportation of the complainant to the hospital. That part of the narrative could have been adequately conveyed without any reference to this evidence. On this point, “narrative” is too often used by counsel, supported by trial judges, as a vehicle for the admission of evidence that is otherwise inadmissible and prejudicial. The practice of using this route to admit prejudicial evidence must stop because this error will often lead to the requirement for a new trial, with the resulting hardships and expense that inevitably flow. Trial judges must be alert to the potential for such misuse and be on guard to bar this door. (c) Spontaneous utterance [49] On appeal, the respondent also attempts to justify the admission of this evidence as being part of the res gestae . This basis for admitting any of this evidence was not advanced at the trial. It is generally problematic to consider a basis for the admission of evidence that was not dealt with at trial, especially when the basis for admission rests on necessary factual findings that were not fully explored. [50] The modern expression for the “ res gestae ” exception to the hearsay rule is “spontaneous utterance”: R. v. Nurse , 2019 ONCA 260, 145 O.R. (3d) 241, n. 2. There is serious criticism of the use of the term “ res gestae ” to describe this exception. Indeed, the authors of James H. Chadbourn, ed., Wigmore on Evidence , vol. 6 (Toronto: Little, Brown and Company, 1976), at §1767, p. 255., have this to say on the use of the term: The phrase res gestae has long been not only entirely useless, but even positively harmful.… Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision. [51] That said, I do not accept that the evidence could be properly admitted on the basis of spontaneous utterance because, on the evidence before us, there was nothing apparently spontaneous about the complainant’s conduct regarding the list of categories of possible attackers. Rather, the nodding or shaking of her head was the result of repeated questioning by the EMS attendant – repeated questioning that neither of the firefighters recollects having occurred. As Catzman J.A. said in R. v. Aguilar (1992), 10 O.R. (3d) 266 (C.A.), at para. 34: Assuming, without deciding, that Ms. Cooper's submission is correct, I do not consider the statements in the present case to fall within the spontaneous declaration exception to the hearsay rule, for they do not attain the level of spontaneity that is an essential element of that exception. They were made in response to very particular questions . [Emphasis added.] (d) Recent fabrication [52] Lastly, there is the exception of admitting the evidence to rebut suicide or accident, in other words, to rebut recent fabrication. But, in this case, there was no suggestion of recent fabrication. The defence clearly took issue with the complainant’s claim that she was attacked, along with her identification of the appellant as her attacker. Suicide or accident were other possible explanations for the incident. With respect to those explanations, however, it was never suggested that the complainant’s identification of the appellant as her attacker was triggered by a motive to fabricate that arose after the statements to EMS were made. To the contrary, the defence position was that the complainant had falsely claimed an attack by the appellant from the outset. [53] As Hourigan J.A. explained in R. v. Khan , 2017 ONCA 114, 136 O.R. (3d) 520, at para. 28: For example, where a prior consistent statement is admitted to rebut an allegation of recent fabrication, it is admitted solely to provide a direct response to the suggestion that the witness concocted allegations after a triggering event. [54] There was no such triggering event in this case. The complainant did not suddenly alter her position and accuse the appellant of being her attacker after being confronted with some other fact or event. The complainant identified the appellant as her attacker from the first moment that she was physically able to do so. The defence did not suggest that a discrete event occurred after her attack that caused her to change her story. The proviso [55] In the final analysis, the respondent seeks to avoid the impact of these evidentiary errors by asserting that the proviso ( Criminal Code , s. 686(1)(b)(iii)) can be used to alleviate against their effect. [56] The situations where the proviso is properly utilized to remedy errors made at a trial are set out in R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272, where Moldaver J. said, at para. 53: Flowing from this principle, this Court affirmed in Khan that there are two situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict. [57] The errors here were not harmless nor trivial and the respondent does not suggest otherwise. Rather, the respondent relies on the fact that the case was so overwhelming that the result would have been the same regardless of the errors. [58] I do not agree. I do not dispute that the case against the appellant was a strong one, but it does not rise to the very high level of being overwhelming. There are questions that arise on the evidence, with which the jury would have had to contend, in arriving at their verdict beyond a reasonable doubt. Those questions include: · How gasoline came to be inside the complainant’s car including in the cup holder? · How the appellant, if he threw the gasoline as described by the complainant, managed to not get any of the gasoline on his clothes or on the ground? · What happened to the gasoline container? · If the complainant crawled towards the road after being lit on fire, as she described, how did her shoes, burned hair, and blood stains wind up on a pathway that led from the opposite side of the parking lot? [59] It cannot, in my view, be said that there is no possibility that these questions, taken in conjunction with the appellant’s evidence as to what he says happened, would not have led one or more jurors to have a reasonable doubt. Conclusion [60] Unfortunately, the evidentiary errors I have discussed infected the fairness of the trial. A new trial is required. That result is never a desirable one, but it is especially concerning, in this case, given that the events occurred more than nine years ago. However, it is a consequence that cannot be avoided. [61] I would allow the appeal, set aside the conviction, and order a new trial. Released: January 12, 2021 “PL” “I.V.B. Nordheimer J.A.” “I agree. Peter Lauwers J.A.” “I agree. B.W. Miller J.A.” [1] R. v. Borel , 2014 ONSC 2605

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Brown, 2021 ONCA 35 DATE: 20210120 DOCKET: C66990 & C66991 MacPherson, Tulloch and Lauwers JJ.A. C66990 BETWEEN Her Majesty the Queen Respondent and David Brown Appellant C66991 AND BETWEEN Her Majesty the Queen Respondent and Daimian Johnson Appellant Nathan Gorham and Breana Vandebeek, for the appellants Diana Lumba, for the respondent Heard: December 18, 2020 by video conference On appeal from the sentences imposed by Justice Michael K. McKelvey of the Superior Court of Justice on May 2, 2019. REASONS FOR DECISION [1] The appellant David Brown pleaded guilty to one count of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c.19. The appellant Daimian Johnson pleaded guilty to three counts of trafficking in cocaine contrary to s. 5(1) of the CDSA . [2] Brown and Johnson submitted agreed statements of facts for the purposes of sentencing. [3] The agreed statements of facts stated that Brown obtained two kilograms of cocaine from Johnson on June 6, 2016. Brown was arrested on June 28, 2016 and found in possession of one kilogram of cocaine pressed into a brick. Police executed a search warrant at Brown’s residence the following day and found cash, cellular phones, a money counter, drug paraphernalia and a debt list. [4] Johnson sold large volumes of cocaine in May 2016, including one kilogram to a client on May 17, 2016. On June 6, 2016, Johnson sold Brown two kilograms of cocaine. On June 13, 2016, Johnson sold one kilogram of cocaine to a different client. Like Brown, Johnson was arrested on June 28, 2016. Police discovered nearly $75,000 in cash and three cellular phones in his car. [5] Brown was sentenced to four years and seven months’ incarceration. Johnson was sentenced to six years and five months’ incarceration. Both men appeal their sentences. [6] The basis of the two appeals is the same – the appellants assert that the sentencing judge took no or insufficient account of several important mitigating factors. If the sentencing judge had taken proper account of these mitigating factors, the sentences should have been lower. [7] Before considering the specific mitigating factors raised by the appellants, we observe that the sentencing judge identified numerous mitigating factors. Both appellants pleaded guilty. Both appellants were arrested twice and had two bail hearings. Both appellants were subject to restrictive bail conditions. Both appellants chose to speak at the sentence hearing. They expressed genuine remorse for their engagement in criminal commercial drug activity and the sentencing judge believed them, saying “Mr. Brown appeared genuinely remorseful about his conduct” and “As with Mr. Brown, I had no reason to doubt Mr. Johnson’s sincerity.” [8] Against this backdrop, we turn to the legal issues raised by the appellants. Importantly, we do so under the umbrella of the deference that an appellate court must accord to the decisions of sentencing judges: R. v. Lacasse , 2015 SCC 64, at paras. 39-44. [9] The appellants submit that the sentencing judge’s starting point for sentences involving possession for the purpose of trafficking – “five to eight years” – was too high. We do not accept this submission. This range is supported by case law: R. v. Bryan , 2011 ONCA 273. [10] Moreover, the Crown in this case proposed a seven year sentence for Johnson and a five year sentence for Brown. And the sentencing judge recorded: “The defence accepts that the sentences proposed by the Crown are reasonable generally.” [11] The real issue on this appeal is the same as that recorded by the sentencing judge, namely “the proposed sentences do not adequately reflect all of the mitigating circumstances which need to be taken into account.” In this domain, the appellants make two joint submissions and Johnson makes a separate submission. [12] First, the appellants contend that the sentencing judge erred by giving no credit for the fact that the appellants had been arrested twice (the second time when new charges were laid) and went through a second bail hearing. [13] We do not accept this submission. The sentencing judge expressly considered this issue under the heading “Mitigating Factors – Two Separate Arrests”. He said: I agree with the defence that having to go through a second arrest and bail review would have caused the defendants some additional anxiety and frustration. I disagree, however, with the suggestion that their sentences should be further discounted by six months on this account. In my view, the proposed sentences adequately reflect this mitigating factor . [Emphasis added.] [14] We can see no error in this analysis. The sentencing judge identified and considered the issue and, importantly, employed it as a factor supporting the sentences proposed by the Crown, which “already reflect[ed] some very significant mitigating factors”. [15] Second, the appellants submit that the sentencing judge failed to give sufficient credit for the stringent bail conditions that both appellants faced after their arrests and for the fact that the appellants, through counsel, turned in three firearms to the police. [16] We are not persuaded by this submission. The sentencing judge explicitly stated that he was going to give credit for these mitigating factors “to reduce the sentences proposed for each of the defendants below those which have been proposed” by the Crown. At the end of his reasons, he fulfilled this pledge by reducing Johnson’s sentence by seven months, and Brown’s sentence by five months, below what the Crown had sought. We cannot quarrel with the sentencing judge’s decision to give credit for these two factors or with the quantum of the credit he chose. [17] Third, the appellant Johnson contends that the amount of credit – two months – the sentencing judge gave him for his testimony at the drug trial of one of his customers was insufficient. [18] We do not accept this submission. At the sentence hearing, the Crown took the position that no credit should be given because Johnson’s testimony was not helpful to the Crown and the charges against the customer were dismissed. The sentencing charge carefully reviewed Johnson’s role in his customer’s trial and the relevant case authorities. We cannot say that his allocation of two months’ credit for Johnson’s testimony was unreasonable, or even parsimonious. [19] The appeals are dismissed. “J.C. MacPherson J.A.” “M. Tulloch J.A.” “P. Lauwers J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Brown, 2021 ONCA 119 DATE: 20210226 DOCKET: C61879 Strathy C.J.O., Watt and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Jeffrey Ronald Brown Appellant Paul J. I. Alexander, for the appellant Jeffrey E. Pearson, for the respondent Heard: November 9, 2020 On appeal from the convictions entered by Justice Paul M. Taylor of the Ontario Court of Justice, on July 30, 2013, and from the sentence imposed on September 26, 2013. Strathy C.J.O.: A. OVERVIEW [1] This appeal concerns the application of “Step Six” in R. v. Garofoli , [1990] 2 S.C.R. 1421. [2] The appellant was arrested and charged with various firearms offences. At trial, the Crown’s case turned primarily on the handgun evidence that had been found by police during their execution of a search warrant on the appellant’s car. The warrants, one for the appellant’s car and one for a dwelling at 121 Dollery Court, were issued on the basis of an “Information to Obtain” (“ITO”) that relied heavily on the tips of a confidential informant (“CI”). [3] The appellant brought an application to challenge the validity of the warrants. He asserted that if the warrants were quashed, the resulting warrantless search of his car violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms , and that the handgun evidence should be excluded under s. 24(2) of the Charter . [4] At the request of the Crown, the trial judge applied “Step Six” of Garofoli and produced a judicial summary of the portions of the ITO that had been redacted in order to protect the CI’s identity. The trial judge determined that the redacted ITO and the judicial summary disclosed “reasonable grounds” for the warrants to be issued. The trial judge rejected the appellant’s application, upheld the warrants, and admitted the handgun evidence. [5] After the ensuing trial, the trial judge convicted the appellant of all charges and imposed a global sentence of six years, less the credit for pre-sentence custody. The appellant has since served that sentence. [6] The appellant appeals his convictions on the ground that the trial judge erred in upholding the warrants. The appellant submits that: (a) the ITO did not meet the criteria set out in R. v. Debot , [1989] 2 S.C.R. 1140; (b) the judicial summary was inadequate; and (c) the trial judge erred in relying on redacted information that he could not challenge. The appellant argues that if the warrants were erroneously authorized, the subsequent search of his car constituted a serious breach of his Charter rights, and that the admission of the handgun evidence would bring the administration of justice into disrepute. Because the handgun evidence was essential to the Crown’s case, the appellant requests that his convictions be set aside, and acquittals entered. [7] For the reasons that follow, I would dismiss the appeal. B. BACKGROUND [8] On June 13, 2011, Toronto police obtained two warrants under s. 487 of the Criminal Code , R.S.C. 1985, c. C-46, to search a 1997 Acura motor vehicle that allegedly belonged to the appellant, and a residence at 121 Dollery Court. [9] The following day, at about 8:41 p.m., a police officer, conducting surveillance of the appellant, observed him walking to his car, which was parked at another location in Toronto. The officer noted that the appellant was “holding onto something underneath his shirt at waistband level … an object that appeared to have some weight.” [10] The officer observed the appellant enter his car on the driver’s side, still holding onto the object. Once seated, the appellant reached over to the passenger-side airbag compartment, “manipulat[ed] something up in that area,” and closed the lid of the compartment by banging down on it with his fist. The officer then observed the appellant start his car and drive off. [11] Several police surveillance vehicles followed the appellant’s car, ultimately making the decision to stop it on Black Creek Drive in Toronto. They arrested the appellant, and searched his car pursuant to the warrant issued on the previous day. They found a loaded semi-automatic handgun in the passenger-side airbag compartment. They charged the appellant with various firearms offences. C. THE ITO and the judicial summary [12] As the ITO relied on information provided by a CI, it had been heavily redacted before its disclosure to the trial judge and defence counsel. The redacted ITO contained the following information about the appellant and his alleged offences: · In March 2011, the affiant of the ITO learned from the CI’s handler that a male by the name of Jeffrey Brown was “currently” in possession of a firearm and was dealing drugs. The CI described Mr. Brown as male, black, in his twenties, 5’7” in height, with a medium build. The CI disclosed that Mr. Brown owned a four-door green Acura and “hung out” in the Jane and Finch area. · The affiant confirmed through investigation that the appellant owned a 1997 four-door green Acura. · In April 2011, the affiant was informed that the appellant was receiving welfare cheques at 121 Dollery Court. · In May 2011, police officers conducted surveillance at 121 Dollery Court on two occasions, and observed the appellant and his Acura vehicle at that location. · In May 2011, the affiant learned from the CI’s handler that Mr. Brown was still in the possession of a firearm. · The affiant conducted additional database searches, and he ascertained that the appellant was prohibited from the possession of firearms due to a conviction for first-degree murder; that the appellant had three convictions, including second-degree murder; and that both the appellant’s driver’s license and his Acura were registered to an address in Ajax. · The affiant discovered from reports in “Field Information cards” that the appellant had been investigated on three occasions between 2010 and 2011 in and around the Jane and Finch area. Those reports matched the CI’s description of Mr. Brown and his car. [13] The Crown subsequently produced a second redacted version of the ITO, which disclosed portions that had previously been redacted. In particular, the new ITO revealed that, on a redacted date in June, the CI had told his handler that, “Jeffrey Brown has a gun on him.” [14] The redacted ITO contained the following information about the CI: · The CI had worked with police in the past and had been assigned a confidential source number. · The CI had previously provided information to police in relation to drug trafficking, homicides, and shootings. The CI’s information had led to the seizure of firearms. · The CI provided information that he saw Mr. Brown in the possession of a firearm and drugs. · The CI had no convictions, to date, for perjury-related offences. [15] The affiant stated that he had no reason to believe the CI’s tips about the appellant were false or malicious in nature. [16] The Crown asked the trial judge to apply Garofoli “Step Six” and provided the judge with a summary of the information that had been redacted from the ITO. After reviewing the summary and the unredacted ITO, the trial judge approved the summary. That summary, in its entirety, read as follows: · The information provided by the confidential informant is current. · The confidential informant is a carded and registered informant of the Toronto Police Service. · The information provided by the confidential informant has lead [ sic ] to the seizure of several firearms. · The information provided by the confidential informant is detailed and specific as it relates to Jeffrey Brown’s firearm. · The means of the confidential informant’s knowledge is disclosed. · The confidential informant advised that Jeffrey Brown confirmed that wherever Jeffrey Brown is, the firearm is. · The confidential informant has been in Jeffrey Brown’s presence many times. [17] The defence was provided with this summary. The defence applied for and was granted leave to cross-examine the affiant of the ITO. D. THE TRIAL JUDGE’S RULING [18] After hearing the submissions of counsel, the trial judge reserved judgment. He subsequently dismissed the appellant’s application to quash the warrants and exclude the handgun evidence. [19] The trial judge began his analysis by summarizing the jurisprudence on judicial review of an authorizing judge’s decision to grant a warrant. He correctly stated that the question before him was whether the search warrants, as amplified on review, could have been issued: R. v. Grant , [1993] 3 S.C.R. 223, at p. 251, citing Garofoli , at p. 1452. [20] The trial judge appreciated that in a case involving a confidential informant, the sufficiency of the ITO must be assessed according to the three Debot factors: whether the tip is compelling, whether the CI is credible, and whether the tip has been confirmed by independent police investigation: R. v. Rocha , 2012 ONCA 707, 112 O.R. (3d) 742, at para. 16, citing Debot , at p. 1168. [21] The trial judge determined that the redacted ITO contained “some information” on the credibility of the CI, but omitted details such as the CI’s criminal record. He noted that the ITO was sloppily drafted and used “remarkably similar” language to the phraseology this court criticized in Rocha . However, he found that there was “confirmatory evidence” of the CI’s tips in the form of police observations and street checks. Furthermore, The Judicial Summary indicates that the Informant’s information is detailed and specific, the means of his knowledge is disclosed, the informant has been in the Applicant’s presence many times, and the Informant confirms that the Applicant is always in possession of the firearm. [22] The trial judge held that, based on the redacted ITO and the judicial summary, the Debot factors for the issuance of the warrants had been satisfied. In the alternative, he mentioned that if he had erred in his analysis, his review of the unredacted ITO and the search warrants met the Debot standard. E. PARTIES’ SUBMISSIONS (1) The Appellant’s submissions [23] The appellant submits that the trial judge erred in finding that the ITO satisfied the Debot criteria, in applying the Garofoli Step Six procedure, and in admitting the handgun evidence. [24] With respect to the Debot criteria, the appellant contends that the CI’s tips were neither credible nor corroborated. He argues that the ITO disclosed minimal information about the CI’s credibility in order to create a “veneer of honesty,” but failed to include essential details, such as the CI’s motive and full criminal record. The trial judge properly acknowledged these omissions, but failed to explain why he concluded that the CI was credible. The appellant also submits that the trial judge failed to conduct a meaningful analysis of whether the ITO was corroborated. Most of the “corroborative” information obtained by police investigation concerned commonplace details about the appellant, and the only other source relied upon by the affiant was a dated and unrelated youth criminal record. While the appellant also disputes the trial judge’s finding that the CI’s tips were compelling, he asserts that in the absence of credibility and corroboration, the ITO cannot stand. [25] The appellant further submits that the trial judge erred in his application of Garofoli Step Six because the judicial summary did not provide a reasonable basis on which to challenge the ITO. Moreover, the trial judge based his decision to uphold the warrants on redacted information that had not been summarized. [26] The appellant contests the Crown’s argument that if the ITO is quashed, the police had reasonable and probable grounds to carry out a warrantless arrest and a search incident to that arrest. The appellant maintains that the Crown did not adduce any evidence at trial as to whether the arresting officer had subjective grounds to justify a warrantless arrest, and that this court should not make that inference from the officer’s evidence. [27] The appellant consequently submits that the trial judge should have excluded the handgun evidence under s. 24(2) of the Charter . The affiant’s “sloppy” drafting of the ITO, with its omissions, exaggerations, and misleading statements, discussed below, pushed the Charter breach to the serious end of the spectrum. In addition, the impact on the appellant’s Charter rights was significant. The appellant claims that the public interest in prosecuting the case cannot “tip the balance” towards admission of the handgun evidence when the other two branches of the s. 24(2) test favour its exclusion. (2) The Crown’s submissions [28] The Crown submits that the trial judge’s decision is entitled to deference. While some of the appellant’s criticisms of the ITO may be fair, the Crown asserts that they do not undermine the basis for the issuance of the search warrants. The trial judge was aware of the need to balance the interest in protecting the CI’s identity with the appellant’s fair trial rights. The trial judge analyzed the Debot factors in that context, and found that the CI’s tips were credible, corroborated and compelling. [29] The Crown submits that the trial judge correctly applied Garofoli Step Six. He could not have allowed more information to be disclosed, either in the judicial summary or in the cross-examination of the affiant by defence counsel, without exposing the CI’s identity. When the judicial summary is read together with the redacted ITO, it demonstrates that the warrants could have been issued. [30] The Crown submits that if the ITO is struck down, there were exigent circumstances to justify the arrest of the appellant and the search of the Acura incident to arrest. As a result, the handgun evidence was properly admitted at trial. F. analysis (1) Applicable principles (a) The requirements for issuing a warrant [31] A justice issuing a search warrant must have reasonable grounds to believe that an offence has been committed. The material in support of the warrant must raise a reasonable probability of discovering evidence of the crime at the place of the proposed search: R. v. MacDonald , 2012 ONCA 244, at para. 6; R. v. Herta , 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20, citing Hunter v. Southam Inc. , [1984] 2 S.C.R. 145, at pp. 167-68. [32] Debot confirms that where the ITO is based primarily on the information obtained from a CI, the authorizing justice must make three inquiries: whether the information about the crime was compelling; whether the source of the information was credible; and whether the information was corroborated by the police before applying for a search warrant. These are not watertight inquiries. Weaknesses in one of the factors may be compensated by the strength of others. The “totality of the circumstances” must be considered in order to meet the standard of reasonable probability: Debot , at p. 1168; MacDonald , at paras. 6-7. (b) The test for the sufficiency of a warrant [33] A warrant is presumptively valid: R. v. Sadikov , 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83; R. v. Pires; R. v. Lising , 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. A party challenging the issuance of a warrant bears the onus of demonstrating that it was not validly issued. [34] The trial judge correctly identified the test for the sufficiency of a warrant. A reviewing court is not entitled to conduct a rehearing of the application for the issuance of a warrant, or to substitute its opinion for that of the authorizing justice. As stated by Sopinka J. in Garofoli , at p. 1452, “[i]f, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere” (emphasis added). See also R. v. Araujo , 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Reid , 2016 ONCA 524, 132 O.R. (3d) 26, at para. 73, leave to appeal refused, [2016] S.C.C.A. No. 432. (c) Garofoli Step Six [35] In R. v. Crevier , 2015 ONCA 619, 330 C.C.C. (3d) 305, Rouleau J.A. provided a detailed description of the Garofoli “Step Six” procedure. Step Six arises in the context of an accused’s challenge to a search warrant that is issued on the basis of a CI’s tips. In order to protect the CI’s identity, the ITO containing the CI’s tips is redacted before its disclosure to the accused. The ITO may consequently become incapable of supporting the warrant’s authorization. Step Six allows the Crown to rely on the unredacted ITO to defend the warrant’s validity. In so doing, Step Six attempts to address the underlying tensions between the court’s duty to protect the confidential communications of CIs and police officers, and the constitutional right of the accused to make full answer and defence. [36] When Step Six is invoked, the trial judge provides defence counsel with a summary of the redacted portions of the ITO: Garofoli , at p. 1461. The summary is usually drafted by the Crown and is then vetted by the judge before it is provided to the defence. [37] A summary is just that: “By its very nature, a summary is general, not detailed. Its predominant characteristics are conciseness and brevity”: Reid (2016), at para. 88. However, the summary must provide the accused with sufficient information to mount both a facial and sub-facial challenge to the ITO, and to question whether the affiant made full and frank disclosure regarding the reliability of the CI and of their tips: Crevier , at para. 83. This would also include information related to the three Debot factors, namely whether the CI is credible, and whether the information is compelling and corroborated: Crevier , at para. 84. [38] In determining whether or not to uphold a warrant, the trial judge can consider the unredacted ITO, but only if satisfied that the accused is sufficiently aware of the nature of the redacted material such that they can mount a challenge in argument or by evidence. Put another way, “the judicial summary of the redacted material provided to the accused, combined with the redacted ITO, must be enough to ensure that the accused is in a position to exercise his or her right to make full answer and defence. Only then can step six be employed”: Crevier , at para. 43. [39] Once in receipt of the judicial summary, the defence, using evidence from Crown disclosure, evidence from the preliminary hearing, and/or evidence from other sources, such as cross-examination of the ITO’s affiant, may attempt to persuade the trial judge that the unredacted ITO cannot justify the issuance of the warrant. (d) The standard of review on Garofoli applications [40] A trial judge’s decision on a Garofoli application is entitled to deference. An appellate court should not interfere with that decision in the absence of an error of law, a misapprehension of the evidence, or a failure to consider relevant evidence: R. v. Reid , 2017 ONCA 430, at para. 8. (2) Application of the principles [41] It is important to contextualize this case in the evolution of the Garofoli Step Six jurisprudence. This court’s judgment in Rocha was released more than a year after the ITO was sworn on June 13, 2011. Thus, while the trial judge had the benefit of Rocha when he heard the application in late 2012 and early 2013, and when he issued his reasons on July 30, 2013, the affiant of the ITO did not have the benefit of Rocha ’s guidance when he swore the ITO. Moreover, the development of the Garofoli jurisprudence was at a relatively early stage at the time the application was heard. As defence counsel put it, they were in “a new frontier of the law”. [42] I now turn to the requirements of Debot , set out earlier. (1) The Debot Factors (i) Was the CI credible? [43] While the “three Cs” of Debot are to be considered together, I agree with the appellant that if the CI’s credibility is weak, it can impact the assessment of the other two factors. Evidence that appears to be compelling may be rendered less so if the credibility of the CI is weak. Corroboration of evidence of low credibility obviously carries less weight than corroboration of evidence of high credibility. [44] Typically, the authorizing justice will be concerned to know the CI’s criminal record, their track record in providing useful information to police, and whether they had a particular motive for providing the information to police. [45] Here, the appellant notes that the affiant did not disclose the full criminal record of the CI, or whether there were any outstanding charges, to the authorizing justice. The affiant simply stated that the CI had “no convictions, to date, for perjury related offences.” The affiant testified that at the time of drafting the ITO, it was not his practice to inquire about the CI’s criminal record, and that he obtained the information stated above from the CI’s handler. He candidly acknowledged, on cross-examination, that the language he had used to describe the CI’s criminal record was no longer part of the acceptable lexicon. [46] The appellant argues that in light of Rocha , the affiant’s “odd language and omissions” with respect to the CI’s criminal record made the CI’s credibility weak. The appellant emphasizes that the Crown counsel at trial had conceded the ITO’s insufficient details, and that the trial judge had criticized the same in his decision. The appellant asserts that the trial judge failed to explain how he came to his conclusion about the CI’s credibility, and draws our attention to the affiant’s other omissions. [47] In particular, the appellant submits that the affiant failed to disclose any motive the CI might have had for assisting police, such as financial or other consideration, public spiritedness, or some form of animus . There was also no meaningful information as to the CI’s reliability, whether the CI had previously provided false or unreliable information, or whether the CI’s tips had led to convictions in the past. [48] The Crown acknowledges that there is some merit to the appellant’s submissions about the “embarrassing” shortcomings in the ITO. The language is “sloppy,” referring, for example, to the appellant having a previous conviction for first-degree murder when, in fact, he had been charged with first-degree murder, but convicted of second-degree murder. In addition, the Crown noted that the affiant’s failure to disclose the CI’s criminal record was inexcusable. However, unlike the trial Crown, the appeal Crown did not concede that the CI’s credibility was weak. He submitted that the trial judge was alive to all these shortcomings, and yet he made no finding that the affiant deliberately misled the authorizing justice. [49] I am inclined to agree with the Crown’s position. The redacted ITO stated that: The [CI] has provided information to police in the past and has been assigned a confidential source number. There is no indication that the information provided would be false or malicious in nature as the confidential source has been proven in the past to be reliable . [Emphasis added.] [50] Moreover, the judicial summary disclosed that “the [CI] is a carded or registered informant of the Toronto Police Service”, and that “the information provided by the [CI] has lead [ sic ] to the seizure of several firearms.” The fact that the CI was formally registered on police records spoke to their reliability, as did the fact that the CI had previously provided information leading to the seizure of firearms – the very crime at issue here. While it would have been preferable for the affiant to have included information about the CI’s motive, it can be inferred that the CI had some motive for providing the information, although no motive for providing false or misleading information, and a history of providing reliable information. [51] In summary, while the trial judge did not thoroughly explain why he found the CI to be credible, and while there were some shortcomings in the affiant’s disclosure of the CI’s criminal record, track record, and motive, these were balanced by the CI’s history as a “registered” police informant with a record of providing reliable information that had led to the seizure of firearms. Deference is owed to the trial judge’s conclusion on this factor. (ii) Was the CI’s information corroborated? [52] The appellant submits that the police only corroborated the CI’s information in relation to “neutral” details that would have been known to anyone. Specifically, the police “corroborated”: · the colour and make of the appellant’s vehicle – a four-door green Acura; · the description of the appellant’s appearance – a black male in his twenties, 5’ 7” tall, medium build; and · the fact that the appellant was a drug dealer and “hung out” in the Jane and Finch area of Toronto. [53] I agree with the respondent that the corroborative effect of some of this information is minimal when viewed in isolation. However, the information cannot be viewed in isolation. When taken together, as it must be, the information of the CI was corroborated by the police’s independent inquiries. A police database check confirmed the appellant’s birth date, and the fact that he owned a four-door green Acura. The ITO also disclosed that the affiant had obtained police “Field Information cards,” indicating that the appellant had been observed on March 23, 2010, February 15, 2011, and April 2, 2011 in the Jane Street area. On one of those occasions, the appellant produced his driver’s licence as identification, and on two of those occasions, he was observed in the Acura registered under his name. [54] In addition, on two occasions in May 2011, police observed the appellant at 121 Dollery Court, the location where his welfare payments were sent. On the first occasion, May 17, he was observed leaving the dwelling, entering the Acura which was parked in the driveway, and driving away. On the second occasion, May 30, he was observed leaving the dwelling, walking up to the driver’s side of the vehicle, removing something from the front of the vehicle, placing it under his sweater, and returning to the dwelling. [55] As this court explained in MacDonald , at para. 20, police are “not obliged, before conducting the search, to confirm the very criminality alleged by the tipster.” There was, therefore, corroboration of the CI’s information on the appellant. The police confirmed the fact that the appellant drove a four-door green Acura, and that he “hung out” in the Jane and Finch area. Although the CI was not able to identify the appellant’s residence, police were able to corroborate the appellant’s ownership of the Acura and his connection to 121 Dollery Court, where they observed both the appellant and his Acura. (iii) Was the CI’s information compelling? [56] The appellant submits that he has limited ability to assess whether the CI’s information was compelling because the redactions were substantial, and the judicial summary was “thin.” He argues that, based on the information available to him, there was no compelling evidence to indicate that a firearm would be found in either the Acura or the residence at 121 Dollery Court at the time of the search. He relies on Herta , at para. 51, in which this court found that the CI’s statement that the accused “would not go anywhere without the gun” was not sufficiently compelling to justify a search at any location the accused had attended as “[t]his would have turned [the accused] into walking, ready-made grounds for belief.” [57] To assess whether the information was compelling, it is necessary to examine both the redacted ITO and the judicial summary. The summary indicates that the CI had been in the appellant’s presence “many times”; that the CI’s information about the firearm was “detailed and specific”; that the means of the CI’s knowledge was disclosed; and that the CI’s information was current. The summary also mentioned that the CI had advised his handler that “wherever Jeffrey Brown is, the firearm is.” [58] This information is compelling because it established that the CI was familiar with the appellant, that the CI’s observations were first-hand, and that the information was current. The CI was able to give a detailed and specific description of the firearm, which indicated that the CI had personally seen it. Furthermore, the appellant confirmed to the CI that he always had the firearm with him. Read together, the redacted ITO and the judicial summary established that the CI’s information was compelling. [59] Despite the appellant’s submissions, I do not regard this as a case similar to Herta . In Herta , there was little information about the CI’s credibility, and the court found that corroboration was weak. The court rejected the proposition that if “a CI has seen someone with a gun at some point in the past, [it] means a search warrant can necessarily [be issued] for any place attended by that person in the future.” In this case, the CI’s similar statement was based not on speculation, but on what the appellant had said about his own possession of his weapon: effectively, “I carry it wherever I go.” (iv) Conclusion on the Debot factors [60] In conclusion, the trial judge was alive to the shortcomings in the ITO, and appropriately recognized that some of them were attributable to the lack of judicial guidance at the time of its preparation. The trial judge applied the Debot factors and did not find that the shortcomings reflected a deliberate attempt by the police to mislead the authorizing justice. The trial judge concluded that the information in the ITO was credible, compelling, and corroborated. The trial judge’s reasons demonstrate no misunderstanding of the evidence and no error of law. The trial judge’s decision is entitled to deference. I would not give effect to this ground of appeal. (a) Garofoli Step Six [61] The appellant submits that the trial judge committed two additional errors in applying Garofoli Step Six. First, the trial judge failed to appreciate that the judicial summary was inadequate; and second, the trial judge relied on information that was contained in the unredacted ITO and was not summarized. I do not accept either submission. [62] On the first point, I note that the appellant not only had the benefit of the judicial summary, but also of a cross-examination of the affiant, which was conducted with leave of the trial judge. More importantly, the judicial summary complied with the suggestions set out in Crevier . It described the nature of the redacted information. The appellant, armed with the ITO, the judicial summary, and the cross-examination, had sufficient information to mount a facial or subfacial challenge to the ITO, and to argue that the requirements of Debot had not been met. That his challenge failed was not due to his inability to effectively challenge the ITO. [63] On the second point, Crevier , at para. 90, states that “[t]o the extent that the accused is not sufficiently equipped to challenge certain redactions, the trial judge must not consider them.” The trial judge followed Crevier and made it clear that his reference to the unredacted ITO was an alternative in case he erred in his analysis of the Debot factors. As I would uphold his analysis on the Debot factors, I consider it unnecessary to address this submission. (b) Other issues [64] Although the trial judge suggested a “Step Seven” to Garofoli , which would permit an appellate court to review the unredacted ITO, I do not find it necessary to address that issue, and have not opened the sealed ITO packet. [65] Nor do I find it necessary to address the respondent’s alternative submission that exigent circumstances permitted the police to conduct a warrantless search of the appellant’s car, pursuant to ss. 487.11 and 495(1)(a) and (b) of the Criminal Code . G. Disposition [66] For these reasons, I would dismiss the appeal. Released: February 26, 2021  “G.R.S.” “George R. Strathy C.J.O.” “I agree. David Watt J.A.” “I agree. B. Zarnett J.A.”