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WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Safieh, 2021 ONCA 644 DATE: 20210922 DOCKET: C66003 Doherty, Gillese and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Boutros Safieh Appellant Stacey Taraniuk, for the appellant Deborah Krick, for the respondent Heard: September 13, 2021 by video conference On appeal from the convictions entered by Justice M. McKelvey of the Superior Court of Justice on July 4, 2017. REASONS FOR DECISION [1] At trial, the appellant challenged the constitutionality of the seizure of his cellphone at the time of his arrest. The Crown agreed that if the seizure breached s. 8 of the Charter , the evidence should be excluded. The trial judge held the seizure was constitutional. After the Charter motion failed, the appellant did not challenge the Crown’s case and the trial judge entered convictions on two counts of procuring a person under 18 for prostitution and two charges of making child pornography. [2] On appeal, the appellant submits the trial judge made several errors in his reasons on the Charter motion and failed to adequately explain how he came to the conclusion that there was no breach of the appellant’s s. 8 rights. [3] We do not accept the arguments advanced by the appellant. The issue on the Charter motion turned on the answer to a single, simple factual question – did the Crown establish, on the balance of probabilities, that the appellant was arrested in the hallway and not in his hotel room? If the arrest was in the hallway, the arrest and the search incidental to the arrest were lawful. If the arrest was in the hotel room, the arrest and the search incidental to the arrest were unlawful and unconstitutional. [4] The trial judge concluded the arrest took place in the hallway, outside of the hotel room. He accepted the evidence of the three police officers who testified that the arrest occurred in the hallway. He rejected the evidence of the appellant that the arrest occurred in the hotel room. In coming to his conclusion, the trial judge reviewed the evidence of all four witnesses, honed in on the sole factual issue, and explained why he found the evidence of the police officers on that crucial issue credible, while finding that the appellant’s evidence on the same issue was not credible. [5] We find no material misapprehension of the evidence by the trial judge. In explaining why he accepted the evidence of the police officers, the trial judge acknowledged inconsistencies in their evidence. He also noted deficiencies in the notetaking of one of the officers. The trial judge appreciated that the evidence of the officers as to the exact location in the hallway where the arrest occurred differed. The trial judge also indicated the officers gave somewhat different evidence as to which of them actually made the arrest in the hallway. [6] Discrepancies among witnesses are common in trials. It is up to the trial judge to evaluate the inconsistencies and the impact, if any, those inconsistencies had on the officers’ credibility and reliability of their evidence. The appellant’s submissions offer no basis upon which this court can interfere with the trial judge’s assessment of the evidence of the officers and his conclusions with respect to the credibility and reliability of their evidence. [7] The trial judge also explained why he did not accept the appellant’s evidence. The trial judge considered the appellant’s evidence that he did not go into the hallway to speak to the police by placing that evidence in the context of the totality of the evidence adduced at trial. He also examined the appellant’s evidence, having regard to the trial judge’s notions of common sense and human experience. That is what triers of fact are required to do. [8] There is nothing in the record to offer any support for the contention that the trial judge engaged in “uneven scrutiny” of the Crown and defence evidence. The appellant’s arguments invite the court to retry this case. We cannot do that. [9] The appeal is dismissed. “Doherty J.A.” “E.E. Gillese J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Meloche v. Meloche, 2021 ONCA 640 DATE: 20210922 DOCKET: C67648 Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A. BETWEEN Michael Meloche Applicant (Appellant) and Adrianna Costa Meloche Respondent (Respondent) Aaron Franks and Michael Zalev, for the appellant Marcela Aroca and Ashley Harmon, for the respondent Heard: March 26, 2021 by video conference On appeal from the order of Justice Kirk W. Munroe of the Superior Court of Justice, dated October 22, 2019, with reasons reported at 2019 ONSC 6143. Fairburn A.C.J.O.: A. Overview [1] This appeal concerns the division of pension payments for family law purposes. The central issue on appeal is this: Where a retired member spouse’s pension payments are divided at source for family law purposes, can the parties agree (or can a court order or can an arbitrator award) that payment sharing continue to the non-member spouse’s estate for the balance of the retired member spouse’s life? [2] On a motion to decide a question of law under Rule 16(12)(a) of the Family Law Rules , O. Reg. 114/99 (“ FLR ”), the motion judge answered this question in the negative. [1] He concluded that the Pension Benefits Act , R.S.O. 1990, c. P.8 (“ PBA ”) specifically precludes a deceased non-member spouse’s share of a retired member’s pension payments from continuing to the non-member’s estate after the non-member’s death. In other words, the motion judge concluded that the death of the non-member spouse necessarily results in their share of the pension payment reverting back to the member spouse. [3] Respectfully, I disagree. There is nothing in the PBA , the Family Law Act , R.S.O. 1990, c. F.3 (“ FLA ”), or the Family Law Matters , O. Reg. 287/11 (“Regulation”) (one of the regulations under the PBA ) that precludes the parties from agreeing to, a court from ordering, or an arbitrator from awarding a continuation of shared pension payments to the deceased non-member’s estate for the balance of the member spouse’s life. Indeed, when these provisions are read together as a cohesive unit, they leave open the possibility of proceeding in exactly this way. B. Background [4] The parties were married for just over 33 years. [5] During their marriage, Adrianna was a teacher. Over the course of her career, Adrianna paid into the Ontario Teachers’ Pension Plan (“OTPP”). Upon her retirement on June 30, 2015, Adrianna elected a joint pension with a 60 percent survivor benefit. The pension payments to Adrianna then began. Once the payments started, the pension became what I will refer to as an “in-pay” pension. What I mean by this term is that “[p]ayment of the first instalment of the retired member’s pension was due on or before the family law valuation date”: PBA , s. 67.4(1)2. [6] Combined with additional bridging benefits that would end when Adrianna turned 65 years of age, she started receiving just under $5,000 per month in 2015. [7] Michael held various jobs over the years. Sadly, in April of 2016, shortly after Adrianna’s retirement, Michael fell seriously ill with Amyotrophic Lateral Sclerosis (“ALS”). At the time that he fell ill, he was working as a custodian with a school board. That work had to end when his illness set in. Michael’s motion record suggests that he soon began receiving “Ontario disability as his only source of income”, just under $1,000 per month. [8] Just over a year later, on July 13, 2017, the parties separated. This was the agreed-upon “valuation date” for purposes of the FLA . At the time that he brought the motion, Michael acknowledged that Adrianna was also “voluntarily” giving him $300 per month. [9] In her responding materials on the motion, Adrianna suggested that Michael was also receiving income from “charity donations from the community and from GoFundMe.com.” She maintained that she had assisted him in raising those funds. At the time of the motion, it appears that Michael was living in the matrimonial home and Adrianna was living elsewhere. [10] In April 2018, Michael applied to the court for a divorce, equalization of net family properties, spousal support, and exclusive possession of the matrimonial home, among other relief. Then, on May 24, 2019, he brought a motion to decide a question of law relating specifically to the division of Adrianna’s pension payments. [11] Separating spouses are strongly encouraged to resolve their family law disputes either entirely outside of court or with limited resort to the courts. Rule 16(12)(a) of the FLR permits the court, on motion, to “decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs”. [12] As the Supreme Court of Canada recently emphasized in Colucci v. Colucci , 2021 SCC 24, at para. 69, “There is a trend in family law away from an adversarial culture of litigation to a culture of negotiation” (citations omitted). Recent amendments to both the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.) and the FLA require parties, to the extent that it is appropriate to do so, to try to resolve family law disputes outside the court structure through an alternative dispute resolution process, such as negotiation, mediation, or collaborative law: see Divorce Act , ss. 7.3, 7.7(2)(a), and 16.1(6); FLA , ss. 47.2(1), 47.3(2)(a). [13] Rule 16(12)(a) of the FLR is a useful tool in this context. At the time of the motion, Adrianna’s pension had been valued for family law purposes. Following the procedures outlined in s. 67.2 of the PBA , which include actuarial assessments of each party’s life expectancy, [2] the pension administrator determined that the imputed value of Adrianna’s pension for family law purposes was $1,281,826.54. Likewise, the pension administrator determined that the imputed value of Michael’s survivor benefit for family law purposes was $103,952.15. [14] The pension administrator also determined that, if the parties agreed to divide the pension at source for family law purposes, Michael was entitled to receive 48.99 percent of Adrianna’s monthly pension payments. This meant that Michael’s share of Adrianna’s pension, divided at source, would be $2,094.02 per month, with bridging benefits of an additional $294.36, which would continue until Adrianna turned 65 years of age. [15] There was significant common ground between the parties. They were well-placed to settle most, if not all, of the issues arising from the breakdown of their marriage without a trial. There was, and still is, no dispute about the imputed pension values for family law purposes. There was, and still is, no dispute about the pension administrator’s calculation as it pertained to Michael’s share of Adrianna’s pension. There was, and still is, no dispute that the most valuable asset owned by the couple on the valuation date was Adrianna’s defined benefit pension with the OTPP. [3] There also was, and still is, no dispute that almost all of Adrianna’s pension was accumulated during the marriage, such that it would be included in Adrianna’s “net family property” as defined in s. 4(1) of the FLA . [16] Consequently, had Michael’s equalization claim proceeded to trial, it appears that he would have been entitled to a substantial equalization payment pursuant to ss. 5(1) and 7(1) of the FLA . I will return to this concept shortly. [17] Instead, Michael’s notice of motion suggests that he wanted to divide Adrianna’s pension payments at source. Notably, this is an available option under s. 10.1(5) (order for division of pension payments), s. 56.1(3) (division of pension payments under a domestic contract), and s. 59.4.1(3) (division of pension payments pursuant to a family arbitration award) of the FLA , all of which explicitly provide for the division of pension payments where the pension is, as in this case, already in pay. [18] However, the parties differed on what should happen to Michael’s share of the divided pension payments following his death – which appeared to be imminent. Michael took the position that, if the pension payments were divided at source for family law purposes, then, after his death, his share of the pension could and should continue to his estate for the remainder of Adrianna’s lifetime. According to an affidavit filed in support of his motion, Michael took the position that any other approach would result in an “absurd” outcome, as it would fail to adequately respond to the “exercise” of attempting to equalize the “net family property in substance as well as form.” [4] [19] Adrianna took the position that, if Michael predeceased her, the PBA precluded Michael’s share of the pension payments from continuing to his estate. Instead, Adrianna argued that, following Michael’s death, his share must revert back to her. [20] Given Michael’s very short life expectancy at the time that these discussions were taking place, Adrianna’s position meant that dividing the pension payments at source would almost certainly result in Michael receiving far less than he would have otherwise received if he had proceeded to trial for a determination of his entitlement to equalization under s. 5(1) of the FLA . I say this for the following reason. [21] Section 5(1) of the FLA reads in part: “ the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.” An application for entitlement under s. 5(1) is brought under s. 7(1) of the FLA . Orders arising from s. 7(1) applications are made pursuant to s. 9(1) of the FLA . Pursuant to that provision, the court may order: (a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part; (b) that security, including a charge on property, be given for the performance of an obligation imposed by the order; [and] (c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years[.] [5] [22] Therefore, to place this issue in its proper context, assuming that there were no other significant assets beyond Adrianna’s pension and Michael’s survivor benefit in either party’s net family property, Adrianna would have owed Michael an equalization payment of around $590,000. I say this because, based on the pension administrator’s assigned values, the difference between the parties’ net family properties would be $1,177,874.39. Of course, Adrianna would owe half that amount to Michael if such an order had been made in accordance with the criteria set out in s. 9(1) of the FLA . [23] To be very clear, I am not suggesting that the amount of $590,000 reflects with any precision the actual amount of equalization that Adrianna would have owed Michael following a s. 7(1) FLA application. We simply do not have enough information on appeal to know with precision what that amount would have been. [24] What we do know, however, is that Adrianna does not dispute that her pension would have been the most valuable asset to be factored into the equalization assessment, and that there were few other assets that would have played a role in arriving at the ultimate determination of how much she owed Michael. [25] Therefore, had Michael simply sought an equalization payment by way of a s. 7(1) application under the FLA , it would have come at a very high cost to Adrianna. Even on Adrianna’s own position, it seems clear that she would have owed Michael a large sum of money. [26] Under s. 9(1)(a) of the FLA , the court may order one spouse to pay the other the full amount required to equalize their net family properties. Section 9(1)(c) permits the court to order that the amount or any part of the amount be paid in instalments, but only “if necessary to avoid hardship” and only over a maximum of 10 years. Therefore, where one party owes another an equalization payment of, say, $500,000, the court may order instalment payments under s. 9(1)(c), which could result in a payment exceeding $4,000 per month for 10 years. [27] Contrast that scenario with the potential pension division scenario for these parties where, based on the pension administrator’s undisputed calculations, Michael would have received a total monthly payment of just less than $2,400 per month (and less than that after Adrianna turned 65 years of age and the bridging benefits ended). Based upon this calculation, over the same 10-year period, well less than $300,000 would be paid. Of course, as will be further explained, if the pension division at source could continue to Michael’s estate, it would continue until the end of Adrianna’s life. On Michael’s calculations, if Adrianna lived for another 27 years, which would put her at 86 years of age when she died, the amount paid through pension division at source would exceed $770,000, adjusted for increases on account of cost of living. [28] Michael saw the exercise of splitting the pension at source and having it continue to his estate as being based, as he put it in his motion materials, upon “the delivery of an equalization payment.” The difficulty for Michael was that the OTPP, in correspondence sent to his lawyer, took the position that the payments could only continue to his estate if there was a settlement instrument directing the OTPP to do so: Please note that unless the settlement instrument which provides for the pension division specifically requires that the split continue to the former spouse’s Estate should he predecease the member, on his death the portion being paid to him reverts to the member. [29] Therefore, Michael had to move quickly to resolve this matter. The OTPP was prepared to have the split continue to his estate, but Michael needed a “settlement instrument” directing the OTPP accordingly. Contrary to Michael and the OTPP, Adrianna took the position that the PBA precluded what Michael contemplated would be a means of achieving some form of equalization. Accordingly, Michael brought a Rule 16(12)(a) motion under the FLR . [30] As part of the disposition of what he described as a “question of law before trial in accordance with Rule 16(12) of the Family Law Rules ”, Michael sought an order directing the OTPP administrators to pay his proportionate share of Adrianna’s monthly pension benefit directly to him, and for those monthly payments to continue to his estate until Adrianna’s death. He also asked for an order “declaring [that] such remedy equalizes [Adrianna’s] pension in accordance with the meaning of the term ‘ equalization ’ in the Family Law Act ” (emphasis in original). [31] Michael died two days after the motion judge’s ruling was released. This appeal is brought by the sole Estate Trustee of the Estate of Michael Meloche. C. The Motion Judge’s Ruling [32] The motion judge framed the legal issue before him as follows: Whether this court can and/or should make an order directing the Ontario Teachers’ Pension Plan to pay to the estate of Mr. Meloche his portion of his wife’s monthly pension benefit for the life of his wife if Mr. Meloche predeceases his wife. [33] The motion judge answered this question in the negative on the basis that the PBA foreclosed the relief sought by Michael. [34] The motion judge began by pointing to s. 10.1(7) of the FLA to suggest that, if the PBA applies to the pension plan, which it does in this case, then the restrictions under s. 67.4 of the PBA “apply with respect to the division of the spouse’s interest in the plan” by an order under s. 9 of the FLA . This was the only reference that the motion judge made to the FLA . [35] The motion judge referred to s. 67.5(1) of the PBA , which specifically says that an “order made under Part I (Family Property) of the Family Law Act , a family arbitration award, or a domestic contract is not effective to the extent that it purports to require the administrator of a pension plan to divide the pension benefits” in relation to an in-pay pension, other than in accordance with s. 67.4. [36] The motion judge also addressed s. 67.4 of the PBA in his reasons. He correctly observed that s. 67.4(1)2. pertains to those situations where the pension is in pay “before the family law valuation date.” As before, the pension payments in this case started after Adrianna’s retirement on June 30, 2015, and the family law valuation date was not until July 13, 2017. As correctly observed by the motion judge, this brought the pension payments in question squarely under s. 67.4 of the PBA . [37] Focusing upon s. 67.4, the motion judge noted that, in his view, nothing in the provision allows for the payment of a pension divided at source to continue to a non-member spouse’s estate where the non-member spouse dies first. Rather, the motion judge emphasized that s. 67.4 directs that the proportion of the retired member spouse’s pension is to be paid to the “eligible spouse”, not the deceased eligible spouse’s estate. [38] The motion judge also relied on ss. 44(1), (3), and (3.1) of the PBA . [39] Section 44(1) mandates that a pension which goes into pay while a retired member still has a spouse within the meaning of s. 1(1) of the PBA “shall be a joint and survivor pension.” As before, Adrianna and Michael were still married and living together when her pension went into pay. As such, it was a joint and survivor pension. [40] Next, the motion judge turned his mind to ss. 44(3) and 44(3.1) of the PBA , concluding that they made clear that, “upon the death of either the pension holder or the spouse, the remaining pension reverts back to the survivor.” Those provisions read: 44(3) Upon the death of the retired member, the pension payable to his or her surviving spouse shall not be less than 60 per cent of the pension paid to the retired member during their joint lives. 44(3.1) If the spouse of the retired member dies before the retired member, the pension payable to the retired member after the spouse’s death shall not be less than 60 per cent of the pension paid to the retired member during their joint lives . [41] The motion judge interpreted these sections to mean that the non-member spouse would be guaranteed “continued pension payments … on the death of the pension holder” (per s. 44(3)) but that “any pension payments to the [non-member] spouse” would “end … on his or her death” (per s. 44(3.1)). This latter interpretation was based upon a finding that the statutory reference was to a “surviving spouse” and not to the estate of the surviving spouse: “Again, the reference is to payments to the ‘surviving spouse’ without any mention or suggestion that these payments are to be paid to the estate of the surviving spouse.” [42] In addition, the motion judge concluded that continuing payments to a non-member spouse’s estate “until the death of the pension holder” (the situation for which Michael was advocating) would contravene s. 44(3.1) because it would cause Adrianna to receive a pension payment of less than 60 percent of the total monthly payment. The motion judge reasoned that Michael’s request for the pension sharing to continue to his estate had to be denied because, if his estate continued to receive 48.99 percent of the monthly payment owed under the pension, then Adrianna would only be receiving 51.01 percent after his death, which is clearly less than the minimum “60 per cent” that the motion judge saw as required pursuant to s. 44(3.1) of the PBA . [43] Finally, the motion judge pointed out that there is no statutory means by which the former spouse could bequeath or share their portion of the monthly payments of the pension. Indeed, as the motion judge noted, this is specifically prohibited under s. 65(1) of the PBA : “Every transaction that purports to assign, charge, anticipate or give as security money payable under a pension plan is void.” [44] For these reasons, the motion judge concluded that Michael’s request for his share of the pension payments to continue to his estate after his death for the remainder of Adrianna’s lifetime was contrary to the PBA . [45] He then ordered that the OTPP pay Michael 48.99 percent of each of Adrianna’s monthly pension payments, commencing retroactively from the valuation date. As he put it: “In all other respects, the applicant’s motion is dismissed.” D. Issues [46] The appellant raises two issues on appeal. [47] First, the appellant argues that the motion judge erred by concluding that the pension payments could not continue to be shared after Michael’s death, with Michael’s portion being paid to his estate for the remainder of Adrianna’s lifetime. [48] Second, and in the alternative, the appellant argues that the motion judge erred by ordering retroactive sharing of the monthly pension amounts. The appellant maintains that Michael did not ask for this on the motion. Instead, if he was unsuccessful on issue one, it was his intent to proceed to a s. 7(1) FLA application, seeking an equalization payment from Adrianna. Pursuant to s. 7(2)(a) of the FLA , an equalization application commenced before death can be continued by the estate. Michael’s application was commenced before death. [49] On the first issue, the respondent argues that the motion judge was right to conclude that the PBA precludes pension sharing to the estate of a deceased spouse. On the second issue, the respondent disputes the appellant’s version of events. She maintains that Michael’s counsel, during oral submissions at the motion, asked for the remedy ultimately granted by the motion judge as an alternative to his main request for relief. [50] For the reasons that follow, I would resolve this matter on the basis of the first issue. In my view, there is nothing in the PBA that precludes pension payments divided at source from continuing to the estate of a non-member spouse during the life of the member spouse, in the event that the non-member spouse predeceases the member spouse. Having resolved the narrow legal question that was properly before the motion judge, I would decline to address the second issue, and instead turn the matter back to the parties to determine how to proceed from here: either through pension division at source to Michael’s estate or through an equalization payment. (1) Where a Non-Member Spouse Dies Before a Member Spouse, Does the PBA Preclude the Continued Sharing of a Pension Payment at Source to the Non-Member Spouse’s Estate for the Balance of the Retired Member Spouse’s Life? (a) The Parties’ Positions [51] The appellant argues that the motion judge erred by specifically concluding that the pension payments payable to Michael must cease upon his death rather than continue to his estate. [52] First, the appellant argues that the motion judge erred by failing to advert to s. 39(2) of the Regulation, which is said to provide a full answer on appeal. That provision reads: The eligible spouse’s share of the retired member’s pension , … is payable as of the payment date that falls on or immediately after the date on which the retired member’s pension is divided under subsection 67.4(4) of the Pension Benefits Act , and is payable for the life of the retired member or until the end of the period for which the pension instalment under paragraph 1 of subsection (1) is guaranteed, whichever is longer. [Emphasis added.] [53] Second, the appellant argues that the motion judge’s conclusion leads to an absurd result which, effectively, frustrates the legislative purpose of the statutory scheme. [54] Third, the appellant argues that the motion judge considered statutory provisions that were wholly irrelevant to the issue at hand. In particular, the motion judge is said to have erred by looking to s. 44(3.1) of the PBA when determining whether a non-member spouse’s share of the pension payments could be paid into their estate after death. The appellant argues that this provision does nothing more than create minimum standards for pension plans that are irrelevant to the question of how pension payments can be divided for family law purposes, either through a domestic contract, family arbitration award, or court order. [55] Finally, the appellant points out that s. 65(3)5. of the PBA specifically precluded the motion judge from relying on s. 65(1) of the PBA , which does not “apply to prevent the assignment, by an order under the Family Law Act of an interest in money payable under a pension plan” where s. 67.4 is operative. [56] For her part, Adrianna argues that the motion judge was correct in his analysis and that the PBA specifically forecloses the relief sought by the appellant. [57] Like the motion judge, Adrianna emphasizes that the “not … less than 60 per cent” requirement in s. 44(3.1) of the PBA precludes the appellant’s requested relief. While parties can waive the joint and survivorship provisions of the pension pursuant to s. 46(1) of the PBA , Michael and Adrianna took no steps to do so. As a result, since s. 44 of the PBA sets out the parameters for joint and survivor pensions, Michael’s estate is precluded from continuing to receive the 48.99 percent of Adrianna’s pension after his death because it would force her payments below the statutory minimum of 60 percent. [58] Adrianna also argues that s. 39(2) of the Regulation does not assist the appellant because it does not specifically authorize a share of the payments of a retired member spouse’s pension to be made to the estate of the non-member deceased spouse. Read in context, Adrianna argues that the use of the term “eligible spouse” in s. 39(2) of the Regulation confers rights only on a living person and not on an estate. [59] Adrianna further points out that s. 67.3(5) of the PBA , which applies to the division of pensions that are not yet in pay, allows for a lump sum to be payable to an “eligible spouse’s estate or as otherwise prescribed.” Had the legislature intended for payment sharing in relation to in-pay pensions to potentially continue to an estate under s. 67.4, the legislature would have included a similar provision. The silence of s. 67.4 on this point is said to be compelling. [60] As for s. 65(3)5., Adrianna argues that the motion judge was right. While the provision allows a portion of her pension to be directly shared, it does not allow Michael to re-assign his share of the pension payment to a third party, specifically his estate. (b) Analysis (i) Overview [61] The parties agree that the issue to be decided on appeal involves a clear question of law. The standard of review is therefore correctness: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; Harvey v. Talon International Inc. , 2017 ONCA 267, 137 O.R. (3d) 184, at para. 32. [62] Respectfully, applying this standard of review, I conclude that the decision appealed from is incorrect. [63] While the PBA is undoubtedly important to the resolution of the issue lying at the heart of this matter, unlike the motion judge, I do not see the PBA as the singular guiding force in answering the central question on appeal. For questions involving the sharing of pension payments at source in family law matters, it is necessary to look to both the PBA and the FLA , as well as the Regulation . [64] The answer to this appeal lies at the intersection of these two statutes and the Regulation. Reading the PBA , the FLA , and the Regulation as a cohesive whole, it becomes clear that the legislature has not precluded the possibility that pension payments which are divided at source for family law purposes may continue to the non-member spouse’s estate for the balance of the member spouse’s life in the event that the non-member spouse predeceases the member spouse. Said differently, parties can agree, a court can order, or an arbitrator can award that the sharing of pension payments at source shall continue to the non-member spouse’s estate after that spouse’s death. (ii) Interpreting the PBA Alongside the Regulation [65] The modern principles of statutory interpretation require that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. When interpreting any statutory provision, a “textual, contextual and purposive analysis” must be applied to find a meaning that is harmonious with the entire Act: Canada Trustco Mortgage Co. v. Canada , 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. When considering regulations, they must be read concurrently with, and in the context of, the enabling legislation: Hickman Motors Ltd. v. Canada , [1997] 2 S.C.R. 336, 148 D.L.R. (4th) 1, at para. 37; State Farm Mutual Automobile Insurance Company v. Old Republic Insurance Company of Canada , 2015 ONCA 699, 127 O.R. (3d) 465, at para. 68. As noted by this court, regulations “will generally be interpreted using the same rules and techniques as statute law, albeit never losing sight of the context of the enabling provisions that give rise to the regulations that complete and implement the statutory scheme”: S.H. v. D.H. , 2019 ONCA 454, 146 O.R. (3d) 625, at para. 31; see also Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Markham: LexisNexis, 2014) at § 13.18. [66] Applying these principles to the interpretation of the operative legislation and regulation here admits of only one answer: that the pension payment sharing could continue to Michael’s estate. I say this for the following reasons. (iii) “Family Law Matters” Under the PBA [67] I start with the observation that only ss. 67.1 to 67.9 of the PBA are devoted to “Family Law Matters”, as the heading plainly states in the statute. While the other provisions of the PBA clearly govern general pension matters, including the structure of pensions, it is only ss. 67.1 to 67.9 of the PBA that specifically address pension issues as they pertain to “Family Law Matters”. [68] This observation is supported by s. 10.1 of the FLA, which governs the interest in a pension plan for family law purposes, including the imputed value of a pension for those purposes. Section 10.1(7) establishes certain restrictions: If the Pension Benefits Act applies to the pension plan, the restrictions under sections 67.3 and 67.4 of that Act apply with respect to the division of the spouse’s interest in the plan by an order under section 9 or 10. [6] [Emphasis added.] Here, the PBA clearly applies to the pension plan, and therefore the restrictions under ss. 67.3 and 67.4 apply as well. [69] The focus of ss. 67.1 to 67.9 of the PBA on family law matters is reinforced, not simply by the name given to that section of the PBA and by s. 10.1(7) of the FLA , but also by virtue of a special definition given to the term “spouse” for the specific purpose of those provisions. Immediately under the heading “Family Law Matters”, s. 67.1(2) of the PBA offers the following definition: A reference in this section and in sections 67.2 to 67.9 to the spouse of a member, former member or retired member of a pension plan is, where circumstances require, a reference to him or her as the former spouse of the member, former member or retired member . [Emphasis added.] [70] The expansive definition given to the term “spouse” only for the purpose of ss. 67.1 to 67.9 (Family Law Matters) can be contrasted with the much more limited definition offered to the term “spouse” in s. 1 of the PBA . Section 1 contains definitions that are applicable to “this Act” more generally. Notably, the definition of “spouse” in s. 1 of the PBA does not include former spouses of retired members. [71] Therefore, the more expansive definition offered to the term “spouse” in s. 67.1(2) of the PBA , including as it does a reference to “the former spouse of the member”, reinforces the fact that ss. 67.1 to 67.9 of the PBA are directly relevant to “Family Law Matters”. It also reinforces that the sections of the PBA outside the section devoted to “Family Law Matters”, such as s. 44(3.1) of the PBA , do not apply to former spouses, which is what Michael was at the time that a continuing payment to his estate was being contemplated. (iv) Contrast Between Sections 67.3 and 67.4 of the PBA [72] I am not persuaded by Adrianna’s argument that the silence about payments to an estate in s. 67.4, when contrasted with the explicit reference to payments to an estate in s. 67.3, demonstrates that payments cannot continue to an estate when the payment is governed by s. 67.4. [73] Section 67.3 of the PBA governs those pensions that are not yet in pay prior to the family law valuation date, contrary to s. 67.4, which governs pensions that are in pay as of that date. Section 67.3(1) permits a former spouse to apply for an “immediate transfer of a lump sum from the plan” if various criteria are met, the second of which states that “[n]o payment of an instalment of the member’s or former member’s pension was due on or before the family law valuation date.” [74] Where the criteria in s. 67.3(1) are met, s. 67.3(2) permits the transfer of a lump sum for family law purposes directly from one spouse’s pension to another specified location involving enforced savings requirements: to another pension plan, to a prescribed retirement savings arrangement, or to another prescribed arrangement, or by leaving it in the pension plan to the credit of the eligible spouse. In this way, s. 67.3(2) places specific limits on the structure of lump sum transfers from pensions that were not in pay before the family law valuation date. [75] It is against that context that ss. 67.3(4) and (5) combine to allow a lump sum which is destined for one of the specified locations to be redirected to an estate, should the non-member spouse die before the transfer takes place. Sections 67.3(4) and (5) read: (4) Once the application is complete, the administrator shall make the transfer within the prescribed period. (5) If the lump sum is not transferred under subsection (4) before the death of the eligible spouse, the lump sum is payable instead to the eligible spouse’s estate or as otherwise prescribed. [76] Therefore, s. 67.3(5) spells out that, if a lump sum made payable under s. 67.3(2) has not been transferred “before the death of the eligible spouse”, then that sum will instead be made payable to the eligible spouse’s estate. Considering the statutory constraints placed upon where the lump sum amount can be directed pursuant to s. 67.3(2), it makes sense that the statute specifically addresses what happens to that amount should the death of the non-member spouse intervene. [77] In contrast, s. 67.4 does not involve lump sum payments directed to enforced savings accounts. Section 67.4(2) of the PBA , governing in-pay pensions, operates in a much simpler manner: the eligible spouse may apply “to the administrator of the plan for division of the retired member’s pension and for payment of the eligible spouse’s share to him or her.” [78] The absence of any reference to payments to the “estate” in s. 67.4 does not force the conclusion that divided pension payments cannot continue to an estate under s. 67.4. In my view, the contrast between ss. 67.3(5) and 67.4 on this point makes sense given that, unlike s. 67.3(2), s. 67.4 does not require that the divided pension payments be directed into forced savings plans. [79] Therefore, the silence of s. 67.4 on this point does not preclude the parties from agreeing to, a court from ordering, or an arbitrator from awarding exactly this approach. [80] To avoid uncertainty, where the division of pension payments under s. 67.4 is engaged, settlement agreements, court orders, and arbitration awards should always specify whether, in the event of the recipient spouse’s death, the intent is for those pension payments to continue to the recipient spouse’s estate or to revert back to the member spouse. (v) Section 44(3.1) of the PBA Does Not Preclude Payment to an Estate [81] Based upon the above, it follows therefore that it was an error to rely upon s. 44(3.1) of the PBA to answer the question posed at the motion. Quite simply, s. 44(3.1) does not fall within the section of the PBA dealing with “Family Law Matters”. [82] In any event, I would pause to note that s. 44(3.1) does not stand for the proposition the motion judge appears to have accepted. [83] Recall that this section provides: “If the spouse of the retired member dies before the retired member, the pension payable to the retired member after the spouse’s death shall not be less than 60 per cent of the pension paid to the retired member during their joint lives ” (emphasis added). [84] The motion judge interpreted this section to preclude a monthly payment of 48.99 percent of Adrianna’s pension from continuing to Michael’s estate, given that the motion judge determined this would necessarily mean that Adrianna was receiving less than 60 percent of the full pension amount (as 51.01 is less than 60). But that is not the effect of this section. Instead, s. 44(3.1) regulates the benefits that must be provided under pension plans. It requires that the survivor under a pension that has become joint and survivor will not, upon the death of their spouse, receive a pension payment that is less than 60% of the payment they were receiving during the life of their spouse. That is, it requires “the pension payable to the retired member after the spouse’s death” not to be less than 60 percent “of the pension paid to the retired member during their joint lives ” (emphasis added). Therefore, even if Michael’s share continued to be paid to his estate, Adrianna’s share would not necessarily be reduced from what she was receiving during their joint lives. (vi) Section 65(1) of the PBA Does Not Apply [85] The motion judge also found that there was no statutory means by which the former member spouse could bequeath or share their portion of the monthly payments of the pension to an estate. In fact, he concluded that s. 65(1) of the PBA specifically precluded this approach because it prevents any “ transaction that purports to assign, charge, anticipate or give as security money payable under a pension fund.” [86] Respectfully, this provision has no bearing on the question to be decided in this appeal. Aside from being outside of those provisions dealing specifically with family law matters, if that section precluded Michael’s share of his pension from continuing to be paid to his estate, it would also preclude Adrianna’s pension division, which is expressly permitted in the “Family Law Matters” portion of the PBA from ss. 67.1 to 67.9. Read as the respondent suggests, the PBA and the Regulation would produce an inconsistent result. Only a further limitation on the pension division in those sections dealing with “Family Law Matters” could have the effect that the motion judge assigned to s. 65(1). [87] Moreover, as the appellant points out, s. 65(3)5. of the PBA specifically precludes the operation of s. 65(1) in this context. That provision reads as follows: “Subsections (1) and (2) do not apply to prevent the assignment, by an order under the Family Law Act , a family arbitration award or a domestic contract, of an interest in money payable under a pension plan … under … [s]ection 67.4 (division of a pension for certain family law purposes).” (vii) The Application of Section 39(2) of the Regulation [88] I turn next to the Regulation that is in force by virtue of s. 115 of the PBA . The Regulation relates to the family law matters governed by ss. 67.1 to 67.9 of the PBA . While Michael argued the relevance of the Regulation at the motion, the motion judge did not advert to it in his reasons. [89] Section 1 of the Regulation reads: “This Regulation relates to the family law matters governed by sections 67.1 to 67.9 of the Act.” Therefore, the Regulation applies to divided pensions and the amounts payable pursuant to s. 67.4 of the PBA and addresses the intersection between the FLA and PBA . [90] As already mentioned, s. 39(2) of the Regulation provides that an in-pay divided pension is payable for the life of the member spouse. For ease of reference, I will set out that provision of the Regulation again here: The eligible spouse’s share of the retired member’s pension , … is payable as of the payment date that falls on or immediately after the date on which the retired member’s pension is divided under subsection 67.4(4) of the Pension Benefits Act , and is payable for the life of the retired member or until t he end of the period for which the pension instalment under paragraph 1 of subsection (1) is guaranteed, whichever is longer. [Emphasis added.] [91] This provision specifically refers to payments of an eligible spouse’s share of an in-pay divided pension – precisely the type of payments at the heart of this dispute – as “payable for the life of the retired member”, in this case, Adrianna. Therefore, the plain language of the Regulation specifically states that the eligible spouse’s “share of the retired member’s pension” is “payable for the life of the retired member” or until some other guaranteed time, whichever is longer. While the Regulation alone does not provide a complete answer to this appeal, in the sense that it proactively states that divided pension payments can continue to an estate, there is nothing in the Regulation that precludes that outcome from occurring. Importantly, the only restriction introduced by the Regulation pertains to the member’s life: namely, that the pension payments cannot continue after that life has ended. [92] Therefore, the plain wording of this section in no way precludes what Michael requested in his Rule 16(12)(a) motion under the FLR . (viii) The Financial Services Commission of Ontario (“FSCO”) and the Pension Administrator Agree this is Possible [93] It is interesting to note that the regulator of pensions governed by the PBA at the time of the original dispute, FSCO, [7] acknowledges the possibility of payments continuing to the former spouse’s estate during the retired member’s lifetime in Family Law related FAQs - Pension Payable Upon Death (2012), online: Financial Services Commission of Ontario: Q902. The former spouse of a retired member is receiving a share of the retired member’s pension. What happens to the former spouse’s share, if he/she dies before the retired member? A902. The Ontario Pension Benefits Act (PBA) does not address this issue. In the absence of a PBA requirement to continue paying the former spouse’s share to the former spouse’s estate, it is FSCO’s view that the former spouse’s share of the retired member’s pension reverts back to the retired member unless the Settlement Instrument (court order, family arbitration award or domestic contract) that was filed with the Application to Divide a Retired Member’s Pension (FSCO Family Law Form 6) requires payment to continue to the former spouse’s estate during the retired member’s lifetime . [Bold in original; underlining added.] [94] Similarly, I note that the interpretation of the PBA offered in these reasons is also consistent with a letter from Ann Volpe, Senior Law Clerk, Pension Law & Policy, Ontario Teachers’ Pension Plan, dated January 18, 2019, sent to Michael’s counsel in the court below. Indeed, it is that letter that caused Michael to bring his motion in the first place. [95] As noted earlier in these reasons, the pension administrator wrote a letter to Michael’s lawyer, stating that pension division could only continue to his estate if a settlement instrument provided for it. The letter reads in part as follows: Our member commenced her pension prior to the Family Law Valuation Date. Accordingly, the only option for division with her former spouse is a pension split, assuming that the parties wish to utilize the pension to satisfy equalization or support obligations. The amount that is to be paid to the former spouse will be a deduction to the member’s pension. The member will lose that portion of her pension for so long as the split is required to be paid. Please note that unless the settlement instrument which provides for the pension division specifically requires that the split continue to the former spouse’s Estate should he predecease the member, on his death the portion being paid to him reverts to the member . Of course, if the member predeceases her former spouse, the pension ceases and accordingly the pension split ceases as well. [Emphasis added.] [96] The FSCO guidance and the letter from the OTPP align. Both suggest that, while the retired member spouse is alive, the estate of the former spouse of the retired member is not precluded from receiving a share of the retired member’s pension for the balance of the retired member’s life. While not determinative, it is still noteworthy that neither FSCO nor the OTPP indicate that payments continuing to the estate for family law purposes are precluded by legislation or regulation. [97] In many instances, including in the circumstances of this case, continuing the payment sharing to the estate might be the only way to make this a viable alternative to a single substantial payment under s. 9(1)(a) of the FLA . [98] This takes me to the more general context of the intersection between the PBA and the FLA , which must inform the analysis. [99] I will now show that the PBA and the Regulation, read cohesively with the objectives of the FLA , accord with FSCO and the OTPP’s articulation: that is, where pension payments are divided at source for family law purposes, nothing precludes those payments from continuing to the non-member’s estate for the balance of the retired member’s lifetime, as long as that is provided for by an agreement, court order, or arbitrator award. (ix) The Intersection of the PBA and the FLA [100] The purpose of the PBA was commented upon in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services) , 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 38, as being of vital importance to long-term income security: The Act is public policy legislation that recognizes the vital importance of long-term income security. As a legislative intervention in the administration of voluntary pension plans, its purpose is to establish minimum standards and regulatory supervision in order to protect and safeguard the pension benefits and rights of members, former members and others entitled to receive benefits under private pension plans[.] [101] Adrianna points to this “long-term income security” purpose of the PBA as antithetical to the appellant’s position. After all, once someone has died, there is no longer a need for income security. The difficulty with this approach – with this singular emphasis on the purpose of the PBA – is that it ignores the equally important legislative context of the FLA . The answer to this appeal lies at the intersection of these two pieces of legislation. [102] The equalization provisions within the FLA serve a very different purpose from the PBA , as reflected in the preamble to the FLA : Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership , and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children[.] [Emphasis added.] [103] If the sharing of in-pay pension payments cannot continue to an estate, in many cases, dividing pension payments at source would lose force as a proxy for what would otherwise be entitlement to equalization of net family property under ss. 5(1), 7(1), and 9(1) of the FLA . This would be particularly true in situations like this one where, from an actuarial perspective, the retired member spouse’s life is likely to be long, but the non-member former spouse’s life is predicted to be short. [104] As before, s. 5(1) of the FLA provides that, when spouses separate and there is no reasonable prospect of resuming cohabitation, “the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.” Section 9(1)(a) of the FLA allows the court to order one spouse to pay the other the amount to which that spouse is entitled under the equalization regime. The idea here is that the value of property accumulated during the marriage partnership, in which spouses are assumed to have been equal partners, should be shared equally when that marriage ends. This includes the accumulation of a pension over the course of a marriage. [105] It is true that pensions have been referred to as “sometimes elusive assets for equalization purposes, being in reality a right to a future stream of income, rather than a current and exigible fund”: Kendra D.M.G. Coats et al. , Ontario Family Law Practice 2020 , Volume 2 (Toronto: LexisNexis Canada, 2019), at p. 537. It is because of the elusive nature of the pension that a new regime was introduced in 2009 to address these difficult issues. At the same time, the FLA was amended so that the family law value of an Ontario-regulated pension would be determined by the pension administrator pursuant to a formula set out in the regulations to the PBA : see FLA , ss. 4(1)(c), 10.1; PBA , s. 67.2. Section 67.2(1) reads: The preliminary value of a member’s pension benefits, a former member’s deferred pension or a retired member’s pension under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the member, former member or retired member and his or her spouse. [106] Adrianna’s argument on appeal relies heavily on the sense that a pension payment, by its very nature, does not continue after death. This is of course true. Adrianna’s pension payments would and could continue only for her lifetime. [107] But what is at issue on this appeal was never the duration of the pension payments to Adrianna. They will certainly stop upon her death. Instead, what is at issue on appeal is whether, given Michael’s entitlement under s. 5(1) of the FLA to one half the difference between his and Adrianna’s net family properties, the division of pension payments at source for family law purposes could instead continue to Michael’s estate for the balance of Adrianna’s life. [108] Of course, as with all actuarial calculations, there is an element of risk. To divide an in-pay pension at source could ultimately be either more or less lucrative than a single payment pursuant to s. 9(1)(a) of the FLA . If the pension member spouse lived a long life, theoretically, the total value of the payments to the estate may exceed what would have been received through an equalization payment under the FLA . But, if the pension member spouse experiences an untimely passing, the value of the divided pension payments to the estate may result in a total value far less than what would have been received through equalization under the FLA . [109] As part of the policy to encourage out-of-court settlement of family law disputes, it is important that the option for pension sharing to continue to the estate – acknowledged by the OTPP and FSCO – remains available. There are many scenarios where such an option would clearly financially benefit both sides, thereby facilitating resolution. Viewed as a means by which to avoid placing a pension-holder in the difficult position of owing money to which they do not at the time have access, the sharing of pension payments at source for the continuation of the retired member’s life, which in no way is precluded by the relevant statutes or regulation, makes both conceptual and practical sense. [110] In my view, contrary to the decision appealed from, nothing in the PBA or the Regulation prohibits division of pension payments for family law purposes from continuing to a former spouse’s estate for the life of the pension member spouse. E. Conclusion [111] I would allow the appeal. The appellant’s motion was brought pursuant to Rule 16(12)(a) of the FLR , permitting a judge to decide a question of law before trial if the answer to the question will dispose of all or part of a case or substantially shorten the trial or save costs. This question has now been answered. There is nothing that precludes the parties from agreeing, a court from ordering, or an arbitrator from awarding that pension payments may continue to a non-member spouse’s estate after that individual’s death. [112] The answer to this question having been given, the parties should now be provided with the opportunity to settle the litigation to their mutual benefit. [113] On consent, costs will be paid to the appellant in the amount of $20,000, all inclusive. In light of the disposition of the appeal, the motion judge’s costs order in favour of the respondent will be varied to provide that the respondent pay the appellant $6,500 in costs for the motion. Released: “September 22, 2021 JMF” “Fairburn A.C.J.O.” “I agree. K. van Rensburg J.A.” “I agree Grant Huscroft J.A.” [1] As set out below, while the question of law put to the motion judge was framed somewhat differently, he answered the question framed on appeal in the negative. [2] The Regulation refers to making a preliminary valuation based upon the “methods and actuarial assumptions that are consistent with section 3500 of the Standards of Practice ”: Regulation, s. 3(2); see also s. 38(3). Section 2(3) of the Regulation defines the Standards of Practice as follows: “ Standards of Practice of the Actuarial Standards Board, published by the Canadian Institute of Actuaries, as amended from time to time.” See Standards of Practice (2005, revised 2020), online: Canadian Institute of Actuaries < www.cia-ica.ca/publications/standards-of-practice >. [3] The appellant suggests the parties’ only material asset, beyond Adrianna’s pension, was their jointly owned home, holding a fair market value of between $400,000 and $520,000. While the respondent suggests that Michael also had a pension with the Ford Motor Company of Canada, it was not in-pay at the time of the motion, nor does it appear that the parties endeavoured to have that pension valued for family law purposes. Even so, a February 14, 2019 letter from the Ford Motor Company suggests that at the “normal retirement date of May 1, 2025”, Michael would be entitled to monthly pension payments of $184.92. Therefore, that pension does not seem to have held much value. In any event, the question of law at issue in this case does not turn on the precise valuations of these parties’ other minimal assets. [4] Michael still had cognitive capacity as the litigation under Rule 16(12) of the FLR was nearing, but he had lost his ability to write. Michael’s cousin took on signing authority for purposes of this affidavit, by virtue of his role as Michael’s power of attorney for property (general) and personal care. [5] See also: FLA , s. 9(4). [6] See also: FLA , ss. 56.1 and 59.4.1. [7] Effective June 8, 2019, FSCO’s regulatory functions were assumed by the Financial Services Regulatory Authority (“FSRA”). The FSCO website states: “FSRA is actively reviewing all FSCO regulatory direction, including but not limited to forms, guidelines and FAQs. Until FSRA issues new regulatory direction, all existing regulatory direction remains in force ” (emphasis added): Family Law related FAQs - Pension Payable Upon Death (2012), online: Financial Services Commission of Ontario < www.fsco.gov.on.ca > .

COURT OF APPEAL FOR ONTARIO CITATION: Maynard v. Mississippi Mills (Municipality), 2021 ONCA 639 DATE: 20210922 DOCKET: C68881 Benotto, Brown and Harvison Young JJ.A. BETWEEN Steve Maynard Applicant (Appellant) and The Corporation of the Municipality of Mississippi Mills Respondent (Respondent) Steve Maynard, acting in person Tony Fleming and Lisa Scheulderman, for the respondent Heard: September 9, 2021 by video conference On appeal from the order of Justice Martin S. James of the Superior Court of Justice, dated October 29, 2020, with reasons at 2020 ONSC 6643. REASONS FOR DECISION [1] The appellant, Steve Maynard, appeals the application judge’s dismissal, pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure , of his application to quash five municipal by-laws. [2] The Local Planning Appeal Tribunal (the “LPAT”) was one of the predecessor tribunals to the new Ontario Land Tribunal, which was established in June 2021: Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sch. 6. [3] Section 11(1) of the now repealed Local Planning Appeal Tribunal Act, 2017 , S.O. 2017, c. 23, Sch. 1, provided that the LPAT had exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction was conferred on it by the Local Planning Appeal Tribunal Act, 2017 or by any other general or special Act. (A similar provision is now found in s. 8(1) of the Ontario Land Tribunal Act, 2021 regarding the consolidated Ontario Land Tribunal.) [4] The Planning Act , R.S.O. 1990, c. P.13, provides that an appeal lies to the Ontario Land Tribunal (formerly the LPAT) following a council giving written notice of the passing of a by-law: s. 34(19). Section 34(19.0.1) provides that: If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document. [5] That is precisely the basis of Mr. Maynard’s challenge to the by-laws. His notice of application alleges that the by-laws are inconsistent with provisions of Provincial Policy Statement, 2014 and fail to conform to the Mississippi Mills Community Official Plan. Given the basis upon which Mr. Maynard challenges the by-laws, we see no error in the application judge’s conclusion that it is plain and obvious that a challenge to the impugned by-laws falls within the exclusive jurisdiction of the LPAT (now the Ontario Land Tribunal) and, consequently, the appellant’s application could not succeed: see Country Pork Ltd. v. Ashfield (Township) (2002) , 60 O.R. (3d) 529 (C.A.), at para. 32. We see nothing in the case management decision of the LPAT in Grabe v. Ottawa (City) , 2019 CanLII 107083 (ON LPAT) that contains any suggestion to the contrary about the jurisdiction of the LPAT, now the Ontario Land Tribunal: see, in particular, paras. 3, 6 and 13. [6] The appeal is dismissed. [7] Mr. Maynard shall pay the respondent its costs of the appeal fixed in the amount of $1,500, inclusive of disbursements and applicable taxes. “M.L. Benotto J.A.” “David Brown J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 31 Kingsbury Inc. v. Delta Elevator Company Limited, 2021 ONCA 656 DATE: 20210922 DOCKET: C67165 Simmons, Pepall and Trotter JJ.A. BETWEEN 31 Kingsbury Inc. Plaintiff (Appellant) and Delta Elevator Company Limited Defendant (Respondent) James M. Wortzman, for the appellant Charles M. Gastle and Heather M. Gastle, for the respondent On appeal from the judgment of Justice Mario Faieta of the Superior Court of Justice, dated June 10, 2019, with reasons reported at 2019 ONSC 3619, 99 C.L.R. (4th) 360. COSTS ENDORSEMENT [1] The appellant abandoned this appeal on the eve of the appeal hearing date by notice of abandonment dated February 5, 2020. The respondent seeks costs of the appeal on a substantial indemnity basis in the amount of $22,926.38, or, in the alternative, partial indemnity costs of $15,713.48. The appeal related to a judgment enforcing a settlement agreement that required the appellant to pay the respondent $88,558.10, which was the balance owing for elevators installed in September 2017. The respondent points to the appellant’s actions in creating as much delay as possible to support its claim for substantial indemnity costs. [2] The appellant submits this court does not have jurisdiction to make a costs award because r. 61.14(3) provides that where an appeal is abandoned (or deemed abandoned) the appeal is at an end. The appellant asserts costs should be assessed as permitted under r. 58.07 by filing the notice of abandonment with the office of the assessment officer. In the alternative, the appellant submits that, given the amount in dispute and the quantum of its costs, a just and proportionate award would be 50 percent of the partial indemnity costs the respondent claims. [3] We are satisfied we have jurisdiction to award costs of an abandoned appeal. Although r. 61.14(3) stipulates that an appeal “is at an end” once abandoned (or deemed abandoned), nothing in r. 61.14(3) displaces this court’s discretion under s. 131 of the Courts of Justice Act , R.S.O. 1990, c. C43 to award and fix costs. On the contrary, r. 61.14(3) and r. 61.14(4) demonstrate this court’s continuing jurisdiction in relation to the costs of an abandoned appeal. Rule 61.14(3) stipulates that, subject to subrule (4), where an appeal is an abandoned, the respondent is entitled to the costs of the appeal. Rule 61.14(4) provides that the abandonment of an appeal shall be without costs if the respondent did not file a response to the appeal “unless a judge of the appellate court orders otherwise.” Rule 58.07, on which the appellant relies, does no more than permit an assessment officer to assess costs where they have not been fixed by the court. [4] Although we are not satisfied the circumstances of this case justify an award of substantial indemnity costs, the circumstances do support an award of partial indemnity costs that will compensate the respondent appropriately for the work done to prepare for the appeal. Costs of the appeal are to the respondent on a partial indemnity scale fixed in the amount of $15,000 inclusive of disbursements and applicable taxes. “Janet Simmons J.A.” “S.E. Pepall J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Belcher, 2021 ONCA 652 DATE: 20210922 DOCKET: C67008 Watt, Benotto and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Brandon Belcher Appellant Julie Santarossa, for the appellant Nicholas Hay, for the respondent Heard and released orally: September 20, 2021 by video conference On appeal from the convictions entered by Justice Gregory A. Campbell of the Ontario Court of Justice on April 8, 2019. REASONS FOR DECISION [1] After a joint trial before a judge of the Ontario Court of Justice, the appellant was convicted of aggravated assault and assault with a weapon. He appeals his convictions. [2] The appellant was alleged to have been one of two assailants who, each armed with a weapon, attacked another man in a public area of an apartment building. The area in which the attack occurred was under video surveillance. [3] The trial was brief. The single issue to be determined was whether the appellant was the person who wielded a baseball bat during the attack on the victim. [4] The victim professed no memory of the attack, likewise of the identity of his attackers. [5] In substance, the case for the Crown consisted of video surveillance of the assault and of the area in which the assault occurred. The assault began in the hallway on one of the floors of an apartment building and continued into the stairwell. The assailant said to be the appellant had a bandana covering his face. Later in the attack, the bandana fell off, but the assailant’s face was hidden from the surveillance camera’s view by the nature of the safety glass in the door to the stairwell. [6] Both assailants left the stairwell. They entered an apartment unit on the floor on which the attack occurred. It was the same apartment unit they had left to begin the armed attack on the victim. [7] In addition to the surveillance video, the Crown called a police officer who was familiar with both participants who appeared in the video. The officer was satisfied that given the assailant’s stature, the concave portion of his face, and his facial hair, the characteristics matched those of the appellant. However, in cross-examination, the officer agreed that he could not say for certain that the appellant was the assailant. [8] The trial judge watched the video filed as an exhibit. He was not satisfied on the basis of the video and the police officer’s recognition evidence that the appellant was the second assailant who wielded the baseball bat. [9] The critical evidence for the trial judge was that the assailants entered the apartment from which they had left to commence their attack immediately after its conclusion. The video surveillance, which the trial judge believed was uninterrupted, showed no one leaving the apartment until police arrived at which time the apartment remained under constant police observation. It followed, the trial judge concluded, that the appellant, the second male to leave the apartment about six and one-half hours after the assault, must have been the second assailant. This, even though the appellant was not dressed in the same clothing as the second assailant shown in the video. [10] Critical to the trial judge’s conclusion that the appellant was the second assailant was his finding that the video was uninterrupted from the time of the assault until the police arrived. But this was not in fact so. There were four interruptions in the video, of almost seven minutes duration. [11] The parties occupy common ground that the trial judge misapprehended the video surveillance evidence. Perhaps he conflated admissibility with completeness. In any event, he misapprehended the nature of this evidence. His reliance on the completeness of the video to identify the appellant as the second assailant was central to his reasoning that the appellant’s guilt had been established beyond a reasonable doubt. [12] It follows, in our view, that the convictions entered at trial cannot stand. We recognize, as Crown counsel concedes in this court, that for a misapprehension of evidence to warrant setting aside a conviction on the basis of a miscarriage of justice, the misapprehension must meet a stringent standard. The misapprehension must have to do with the substance of the evidence, not merely a matter of detail. The misapprehension must be material, not peripheral to the reasoning of the trial judge. And the error must play an essential part in the judge’s reasoning process resulting in a conviction, not simply in the narrative of the judgment: R. v. Lohrer , [2004] 3 S.C.R. 732, at para. 3. [13] In the usual course, the appropriate remedy in these circumstances would be to allow the appeal, set aside the convictions, and order a new trial. However, the appellant also challenges the verdict rendered at trial as unreasonable and seeks entry of a verdict of acquittal rather than an order for a new trial. [14] We accept, as the decision in R. v. Sinclair , [2011] 3 S.C.R. 3, at paras. 12 and 13 teaches, that an erroneous understanding of the evidence on a material issue may render a verdict unreasonable within s. 686(1)(a)(i) of the Criminal Code . Although the case for the Crown was not overwhelming, we are unable to say that the verdict is one that a properly instructed trier of fact acting judicially could not reasonably have rendered. We have in mind that the appellant was found in the same apartment as the first assailant, the apartment from which the assailants left to commence the attack and to which they returned at its conclusion. The second assailant was similar in appearance to the appellant. It is also not without significance that the appellant, who now alleges that the Crown has failed to negative various possibilities other than the appellant’s participation as the second assailant, did not testify at trial. [15] In the result, we are not satisfied that the verdict rendered at trial was unreasonable within s. 686(1)(a)(i) of the Criminal Code . [16] The appeal is allowed, the convictions set aside and a new trial ordered on the counts of aggravated assault and assault with a weapon, a baseball bat. “David Watt J.A.” “M.L. Benotto J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ramroop, 2021 ONCA 642 DATE: 20210923 DOCKET: C66986 Doherty, Gillese and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Avinash Ramroop Appellant Jason Rabinovitch, for the appellant Nicolas de Montigny, for the respondent Heard: September 14, 2021 by video conference On appeal from the conviction entered on April 2, 2019 by Justice L.M. Budzinski of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of impaired driving causing bodily harm and fail to remain at the scene of an accident causing bodily harm arising out of a three-car accident on Weston Road in Toronto. A Chrysler 300, owned by the appellant’s father, struck a northbound Toyota Corolla and an Acura SUV before ending up on the boulevard. An empty can of beer was found on the front passenger seat of the Chrysler. A witness said that the driver of the Chrysler had run into a nearby backyard. [2] The appellant was found by Constable McGill in the backyard of a nearby house following the accident. Constable McGill testified that the appellant had a head injury and a bleeding nose. He was vomiting, had difficulty speaking, and was in and out of consciousness. Constable McGill testified that he smelled alcohol coming from the appellant and that there was a strong smell of gasoline. [3] The issues at the short trial were whether the appellant was the driver of the Chrysler and, if he was, whether the appellant was impaired. On April 2, 2019, the trial judge gave oral reasons for judgment, finding that the appellant was the driver and that he was impaired. [1] On May 1, 2019, the trial judge provided what he described as a more detailed judgment in which he corrected an error he had made earlier. Specifically, the trial judge emphasized that, contrary to what he said on April 2, he was not relying on a statement the appellant had made to the police that he had been driving at a high rate of speed and had been drinking, as the statement was involuntary and not admissible. The trial judge said that his findings were based on the circumstantial evidence. [4] The appellant’s primary argument is that the trial judge erred in finding that he was the driver of the Chrysler. The appellant concedes that there is no doubt that he was in the vehicle but argues that the trial judge erred in inferring that he was the driver, as there were other reasonable inferences on the evidence. The appellant argues that although the trial judge acknowledged that his statement was inadmissible, he failed to re-evaluate the evidence in his second judgment. His analysis was essentially unchanged from the first judgment, in which considerable weight was put on the statement. [5] We disagree. [6] The trial judge instructed himself as to the proper approach to drawing inferences from circumstantial evidence, as set out by the Supreme Court in R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000 at para. 55: “ Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.” The Crown is not required to negative every other possible inference in order to meet its burden. Alternative inferences must be plausible based on the evidence, not speculative. [7] There was a substantial body of circumstantial evidence in this case from which it could be inferred that the appellant was the driver of the Chrysler: · The Chrysler belonged to the appellant’s father; · Mr. Tran, a passenger in the Acura, saw a dark-skinned, slim person standing near the Chrysler, wobbling and unable to stand straight; · Constable McGill found the appellant, whose appearance was consistent with the description of the person seen near the Chrysler right after the accident, in the backyard of a home about 30 metres from the accident; · The appellant smelled of gasoline and alcohol; and · No one else from the Chrysler was found at the scene of the accident or sought medical attention. [8] The trial judge inferred from this evidence that the appellant was associated with the Chrysler and was involved in the accident. He considered and rejected the possibility that the appellant could simply have been a passenger in the Chrysler: no one else from the Chrysler was found at the scene of the accident or sought medical attention, so the appellant was the only person in the Chrysler and had to be the driver. The discovery of the appellant in the nearby backyard supported the inference that he had fled the scene of the accident and was hiding in the backyard in an attempt to avoid criminal liability. [9] We see no error in the trial judge’s determination, on the totality of the evidence, that the appellant was the driver of the Chrysler. [10] The appellant raised a secondary argument, challenging the trial judge’s finding that he was impaired. The appellant argued that the trial judge’s reasons on the impairment charge were inadequate, characterizing this as a Villaroman argument rather than an unreasonable verdict argument. [11] It is well established that there is no special test for determining impairment. The offence of impaired driving is established by evidence of “any degree of impairment ranging from slight to great”: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.) at 95, aff’d [1994] 2 S.C.R. 478. [12] In this case, the trial judge made several specific findings. The accident: · was caused by the Chrysler; · occurred at high speed in excess of the city speed limit; · showed an inattention to the traffic and the nature of the neighbourhood; · displayed an utter lack of control and judgment by the driver of the Chrysler; and · occurred when the road was clear and dry and there was no evidence of road obstruction. [13] The appellant does not challenge any of these specific findings. He argues that guilt cannot reasonably be inferred from them. [14] This argument must be rejected. [15] Although it is not clear exactly how the accident occurred, there is no doubt as to its violent nature. There was evidence that the Chrysler was out of control and that it hit the other two cars at a high speed before landing on its side on the shoulder or sidewalk area in front of a house. A witness described the Chrysler as “flying”. [16] The trial judge noted that there was no evidence of anything such as mechanical failure, medical emergency, or road obstruction, that would explain the nature of the accident, and found that it was consistent with some sort of impairment by the driver of the Chrysler. Given the presence of an empty beer can in the passenger seat and the smell of alcohol on the appellant, it was open to the trial judge to conclude from the totality of these circumstances that the only reasonable inference was that the appellant was impaired to some degree, and to find that the Crown had proven its case beyond a reasonable doubt. [17] The appeal is dismissed. “Doherty J.A.” “E.E. Gillese J.A.” “Grant Huscroft J.A.” [1] The appellant was acquitted on a charge of over 80 because the trial judge was not satisfied as to the reliability of the blood sample test results .

COURT OF APPEAL FOR ONTARIO CITATION: Hanna & Hamilton Construction Co. Ltd. v. Robertson, 2021 ONCA 660 DATE: 20210923 DOCKET : M52782 (C68707) Watt, Benotto and Trotter JJ.A. BETWEEN Hanna & Hamilton Construction Co. Ltd. Plaintiff (Respondent in Appeal) and Craig Ross Robertson , 2092637 Ontario Ltd. and Brenda Robertson Defendants ( Appellants ) Heard: In writing REASONS FOR DECISION [1] The appellants appeal the orders of Donohue J., dated September 29, 2020 and October 23, 2020. [2] The orders followed the respondent’s motion in the Superior Court of Justice for a declaration that previous orders of the court survived the bankruptcy of the appellants. [3] At the conclusion of oral submissions, the motion judge granted the relief sought as follows: Based upon all of the materials before me, the very detailed submissions I am going to grant the order that is sought by the moving party and set out in the notice of motion, paragraph B, C and D. So those declarations are granted with respect to the writs of execution. [4] The motion judge later granted costs to the respondent and declined to provide reasons for the order, or for the costs’ decision. [5] Both parties ask this court to set aside the order. [6] The reasons of the motion judge fail to disclose how she arrived at the conclusion, in fact or in law. They are incapable of meaningful appellate review and this constitutes an error in law: see R. v. Sheppard [2002] 1 SCR 869 at para. 28. [7] The appeal is allowed and the orders of Donohue J. dated September 29, 2020 and October 23, 2020 are set aside and a new hearing is ordered before a different judge. [8] In accordance with counsel’s agreement, there will be no costs of the appeal. “David Watt J.A.” “M.L. Benotto J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Skinner v. Skinner, 2021 ONCA 658 DATE: 20210923 DOCKET: C67873 Strathy C.J.O., Pepall and Pardu JJ.A. BETWEEN Lisa Ellen Skinner Applicant (Appellant in Appeal) and Michael Wayne Skinner Respondent (Respondent in Appeal) Emily M. Carroll, for the appellant Eric Sadvari and Ramanjit Gill, for the respondent Heard: September 16, 2021 by video conference On appeal from the order of Justice Jennifer Breithaupt Smith of the Superior Court of Justice, dated December 2, 2019, with reasons reported at 2019 ONSC 6949. REASONS FOR DECISION Overview of the Facts [1] The parties were married in 1998 and separated sometime in 2006 or 2007. There are two adult children of the marriage. The court below made orders dealing with parenting and support issues on January 12, 2009 and April 27, 2010. Both the appellant and the respondent sought to change the most recent order due to material changes in circumstances. The respondent also argued that the appellant was no longer entitled to spousal and child support. Justice Breithaupt Smith found that there had been material changes to the respondent’s circumstances and reduced the arrears owing based on her recalculations. Justice Breithaupt Smith also found that the appellant’s entitlement to spousal support ended as of June 30, 2019 and her entitlement to child support ended as of December 31, 2017 and December 31, 2019. The appellant seeks to appeal Justice Breithaupt Smith’s order to this court. Overview of the Appeal [2] The appellant advances five grounds of appeal: 1. Breithaupt Smith J. erred in finding that there had been a material change in circumstances warranting a reduction in the respondent’s support obligations; 2. Breithaupt Smith J. erred in finding that the respondent was excused from his intentional underemployment for the years of 2011-2016; 3. Breithaupt Smith J. erred in reducing arrears back to 2011; 4. Breithaupt Smith J. erred in failing to address the children’s Section 7 extraordinary expenses accumulated after March 31, 2011; and 5. Breithaupt Smith J. erred in finding that Steven was not a “child of the marriage” in 2018 and 2019, and that Hailey did not qualify for child support effective December 31, 2019. 6. The appellant also requests that the costs order in the amount of $17,313.24 be set aside. [3] The appellant, Lisa Ellen Skinner, and the respondent, Michael Wayne Skinner, were married on February 14, 1998 and separated sometime in 2006 or 2007. There are two children of the marriage: Steven, born May 12, 1998, and Hailey, born May 16, 2001. The parenting and support issues were first addressed on January 12, 2009 in the final order of Justice Bean (the “Bean Order”). The respondent brought a motion to change the Bean Order to accord with his actual income and to address certain parenting issues, which were addressed on April 27, 2010 in the final order of Justice Epstein (the “Epstein Order”). The respondent owed arrears at the time. [4] The respondent then sought to change the Epstein Order, stating that his inability to work consistently due to his illness constituted a material change in circumstances. He requested that the court rescind the arrears accumulated since the date of the Epstein Order or, in the alternative, recalculate child and spousal support to reflect his actual income and adjust the arrears accordingly. He also requested that spousal support be terminated effective April 27, 2011 and for child support to end as of the children’s 18 th birthdays. The appellant also sought to change the Epstein Order, arguing that the $5.38 increase in the respondent’s hourly rate as of 2011 constituted a material change in circumstances justifying a retroactive increase in support. The motion to change the Epstein Order was heard on November 22, 2019, and it is this order that is under appeal. [5] In her endorsement dated December 2, 2019, the motion judge found that material changes in the respondent’s circumstances took place as of the date of diagnosis and identification of serious health issues affecting him and also as of the date of the increase in his hourly rate. In arriving at this conclusion, the motion judge applied the legal test for a material change in circumstances as determined in Willick v. Willick , [1994] 3 S.C.R. 670 at p. 688: “a change, such that, if known at the time, would likely have resulted in different terms.” She found that there had been a material change in circumstances as of July 10, 2015, when the respondent was diagnosed with a significant illness. She also found that there had been an earlier material change in circumstances as of April 1, 2011, when the respondent returned to work at a higher hourly rate. As a result of these material changes in circumstances, the Epstein Order was reviewable and Breithaupt Smith J. conducted a fresh analysis of the issues dating back to 2011. [6] The motion judge also considered whether income should be imputed to the respondent with a view to assessing his support obligations. Applying Lavie v. Lavie , 2018 ONCA 10, 8 R.F.L. (8th) 14, she held that the health needs of the respondent excused his underemployment for the period from 2011 to 2018, but that there was insufficient evidence to excuse his underemployment for 2017-2018. Once the respondent’s illness was properly treated, he was able to increase his working hours. [7] In dealing with child support the motion judge applied the criteria described in Rosenberg v. Rosenberg (2003), 42 R.F.L. (5th) 440 (Ont. S.C.) to assess whether a child over the age of 18 continued to be a child of the marriage for support purposes. She concluded that the evidence was not sufficient to establish that the child Steven continued to be a child for whom support was payable after 2017 and was insufficient to establish that Hailey was a child for whom support was payable after December 31, 2019, although the motion judge left open the possibility of a future motion for child support, without the necessity of demonstrating a material change, upon better evidence. In that regard, she noted that her decision on termination of child support was subject to review and reinstatement effective January 1, 2020, based on production of more evidence. [8] The motion judge also terminated the appellant’s entitlement to spousal support as of the end of 2019. She noted that the appellant had completed a program of education that significantly increased her earning potential and that the academic year 2018-2019 was her youngest child’s fourth year of high school. She observed that application of the Spousal Support Advisory Guidelines would have suggested spousal support of 4.75-12 years duration, post separation. Here, with termination of support ordered by the motion judge, spousal support had been paid until a date approximately 12 years after separation. [9] With all of these findings in hand, the motion judge went on to calculate the support that should have been paid from 2011. Analysis [10] The parties agree that the appropriate standard of review is “palpable and overriding error.” The standard of review for family support decisions demands significant deference. This is informed by both the discretion involved in making support orders and the importance of finality in family law litigation. An appeal court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law: see Hickey v. Hickey , [1999] 2 S.C.R. 518, at para. 12. [11] The motion judge cited the applicable authorities and correctly distilled the governing tests. The appellant essentially submits that the motion judge ought to have weighed the evidence differently. We do not agree. The conclusions reached by the motion judge were reasonable, based on the evidence before her. The motion judge logically and carefully explained her conclusions. There is no basis to find any error in her reasoning, let alone palpable and overriding error. [12] While the motion judge did not directly address retroactive s. 7 expenses for the children, the appellant would have had to establish that the expense was necessary, in the children’s best interests, and reasonable in relation to the means of the spouses and children and the family’s spending pattern before separation. Given the paucity of evidence on these points, the motion judge did not err in not making an order for s. 7 expenses. [13] The appellant also submits that the motion judge erred in ordering her to pay costs to the respondent in the sum of $17,313.24. The respondent had offered to settle with the appellant on terms that were more favourable to her than the judgment on the motion. We see no basis to interfere with the motion judge’s decision on costs. [14] Accordingly, the appeal is dismissed with costs payable to the respondent fixed at $5000.00 all inclusive. “G.R. Strathy C.J.O.” “S.E. Pepall J.A.” “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Diamond v. Berman, 2021 ONCA 653 DATE: 20210924 DOCKET: C68480 Rouleau, Hoy and Thorburn JJ.A. BETWEEN Alyssa Beth Diamond Applicant/Responding Party (Respondent) and Wayne Mark Berman Respondent/Moving Party (Appellant) David Sherr, for the appellant Mark Greenstein, Ashley F. Krol and Katie Hunter, for the respondent Heard: September 20, 2021 by video conference On appeal from the orders of Justice McGee of the Superior Court of Justice, dated March 16 and June 4 2020, with reasons reported at 2020 ONSC 1566 and 2020 ONSC 3492, and from the cost order, dated July 16 2020, with reasons reported at 2020 ONSC 4301. REASONS FOR DECISION [1] This appeal arises from a bitter family law dispute. After an 11-day trial, the trial judge ordered the appellant to pay spousal support at the high-end of the spousal support advisory guidelines, calculated in accordance with the appellant’s income and expected income increases, and the respondent’s income set at $40,000 without providing for later increases. [2] Following the decision, the appellant, by motion, submitted that the trial judge had erroneously applied the “without child support” formula to calculate the spousal support award for the January to August 2019 period. The appellant argues that the “custodial payor” formula ought to have been used. Although the trial judge acknowledged having applied the wrong formula, she nonetheless declined to revise her order. The trial judge also awarded the respondent full recovery costs fixed in the amount of $180,800. [3] On appeal, the appellant argues that the trial judge erred: i. in refusing to impute a higher level of income to the respondent; ii. in determining the quantum of spousal support; and iii. in awarding the respondent full recovery costs. [4] In our view, the appeal must be dismissed. [5] With respect to the first ground of appeal, the appellant argues that the trial judge seriously misapprehended the evidence regarding the respondent’s actual income, her working hours, her credentials and the availability of full-time work or supplemental employment. In short, the appellant maintains that the trial judge made multiple errors in her fact finding. [6] We see no basis to interfere with the trial judge’s decision. She based her refusal to impute additional income largely on the evidence of the respondent’s expert on rehabilitation. According to that evidence and the respondent’s testimony at trial, the trial judge determined that part-time work was widespread among dental hygienists and that the respondent was earning at the high-end of hourly wages in her field. The respondent worked part-time throughout the course of the marriage. The trial judge also found that, over the course of the marriage, the appellant discouraged the respondent from working longer hours and pursuing opportunities to upgrade her qualifications. As a result, the trial judge concluded that the respondent’s rate of employment was consistent with her occupation, her experience and her age, and that the appellant had not demonstrated that the respondent was underemployed or capable of earning more than she was at present. [7] With respect to the alleged factual errors, the appellant is, in effect, seeking to reargue his case on appeal. He asks this Court to review and reinterpret the trial evidence so that we might make findings of fact different from those made by the trial judge. As an example, he argues that the trial judge’s finding that the respondent’s annual earnings were approximately $40,000 was contrary to the evidence. If, as found by the trial judge, the respondent worked 20 hours a week at $46 per hour, the appellant submits that she should earn an annual income of $47,840. This does not, in our view, constitute palpable and overriding error. As noted by the respondent, the trial judge’s finding is explained by the fact that the respondent’s paid hours on any particular day may vary if patients cancelled or the schedule of appointments was not filled. Further, the 20 hours a week include unpaid lunch breaks. It is not the function of this court to retry the case. From our review, all of the trial judge’s factual findings are well-anchored in the evidence and we see no basis to interfere. [8] On the issue of spousal support, the appellant argues that the trial judge committed errors of fact and law in awarding spousal support “at the high-end range”. In his submission, they were equal partners in the marriage and the respondent suffered no deprivation to her career. In addition, the appellant maintains that, after he advised the trial judge that the amount she awarded was based on an incorrect premise, the trial judge ought to have changed the amount of support ordered. [9] We reject this ground of appeal. The trial judge correctly instructed herself on the applicable principles in finding that the respondent would bear a disproportionate share of the economic consequences of the marriage, and that the respondent focussed on the needs of the household. The trial judge relied on the deep economic integration of the parties to determine that the breakdown of the financial unit would have a more serious impact on the respondent. We see no error in her conclusion in that regard. [10] The trial judge’s decision not to change the amount of support ordered despite the error noted by the appellant was explained by the trial judge in supplementary reasons. Her explanation is equally free of error. [11] Finally, on the issue of costs, we see no basis to grant leave. The trial judge’s decision to award full recovery costs is well-supported by her reasons. We note in particular that, despite the award of full recovery costs, the trial judge nonetheless carefully reviewed the amount being claimed by the respondent and effected substantial reductions from the amount sought. [12] For these reasons, the appeal is dismissed. Costs to the respondent fixed in the amount of $15,000 inclusive of disbursements and applicable taxes. “Paul Rouleau J.A.” “Alexandra Hoy J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Lalonde v. Agha, 2021 ONCA 651 DATE: 20210924 DOCKET: C68482 Brown, Roberts and Zarnett JJ.A. BETWEEN Sophie Lalonde Applicant (Respondent) and Samer Agha Respondent (Appellant) Robert J.M. Ballance, for the appellant Michelle DiCarlo, for the respondent Heard: June 29, 2021 by video conference On appeal from the order of Justice Kirk W. Munroe of the Superior Court of Justice dated June 3, 2020, with reasons reported at 2020 ONSC 3486. L.B. Roberts J.A.: Overview [1] This appeal concerns the scope of s. 31 of Ontario’s Marriage Act , R.S.O. 1990, c. M.3, which operates to validate a formally invalid marriage solemnized in good faith. Specifically, this appeal will determine whether s. 31 extends to marriage ceremonies performed outside of Ontario and to purely religious ceremonies where the parties took no steps to obtain a licence or register the marriage. [2] The trial of the issue of the validity of the parties’ marriage arose in the context of the respondent wife’s application in which she sought custody [1] of their children, child and spousal support, and equalization of net family property. In his answer, the appellant husband claimed there was no legally valid marriage and, as a result, the respondent’s claim for equalization of net family property must be dismissed. [3] The appellant appeals from the trial judge’s final order that the parties’ August 7, 1998 marriage in Memphis, Tennessee is deemed to be a valid marriage pursuant to s. 31 of the Marriage Act and, therefore, that the parties are “spouses” under the Family Law Act , R.S.O. 1990, c. F.3 (“the FLA ”), s. 1(1), for the purpose, among others, of equalization of net family property. Under s. 1(1) of the FLA , only legally married spouses, or those who have “together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right” are entitled to equalization of property on marriage break down. [4] For the reasons that follow, I would dismiss the appeal. Factual background [5] On August 7, 1998 the parties participated in a religious marriage ceremony at a mosque in Memphis, Tennessee. The appellant, a practising Muslim, had attended this mosque for the few months that he resided and worked in Tennessee. He had arranged for the ceremony to take place during the weekend that the respondent was visiting him from Canada. While the appellant subsequently disputed the legal validity of the ceremony for the purposes of property equalization, his evidence was that he believed the ceremony was necessary to permit the parties to engage in sexual relations, as pre-marital sexual relations were considered sinful under Islamic religious law. The respondent had converted to Islam about a year before the ceremony. [6] The mosque’s Imam performed the marriage ceremony and signed the marriage certificate. Following the marriage ceremony, the parties received a marriage certificate with the seal of the mosque’s Imam. The certificate states that they “[h]ave been married according to the Quran and Sunnah and are hereby given the rights and privileges of husband and wife according to the Islamic Shariah”. [7] No marriage licence was issued by any government entity. Other than having the marriage solemnized by the mosque’s Imam and witnessed by other members of the mosque, the parties did not try to ascertain or comply with the formal statutory conditions of a legal marriage in Tennessee, including the requirements to obtain a marriage licence and register the marriage. [8] The parties both gave evidence that they did not know that they were not complying with Tennessee statutory requirements. They did not know they had to obtain a marriage licence or register their marriage. Rather, they considered themselves to be legally married. Until their separation in 2016, they lived openly as husband and wife for many years in Windsor, Ontario, where they had three children and purchased the matrimonial home. They recognized themselves as married to each other on government and other official documents. On his cross‑examination at trial, the appellant testified that even following the parties’ separation, he thought of himself as married to the respondent. However, in response to the respondent’s application for equalization of net family properties, the appellant took the position that there was no marriage. Trial of an issue [9] The appellant never disputed that the parties were common law spouses, entitling the respondent to spousal and child support. The point of contention at the trial was whether the August 7, 1998 religious ceremony created a valid marriage under Tennessee or Ontario law for the purpose of the respondent’s entitlement to make property claims under the FLA . The respondent’s equalization claim pursuant to s. 5 of the FLA relied on her meeting the definition of a “spouse” under s. 1(1) of the FLA . [10] Both parties called legal expert evidence concerning the conditions of a valid marriage in Tennessee and the validity of their marriage ceremony at the mosque. Both experts agreed that in Tennessee, marriage is governed by statute, common law marriage is not recognized, and the statute, Tennessee Code Annotated , requires the issuance of a marriage licence prior to any religious ceremony. They also agreed that in certain exceptional circumstances, the absence of a marriage licence does not invalidate a marriage on public policy grounds and that the equitable doctrine of marriage by estoppel could be applied to validate a formally invalid marriage. [11] The experts disagreed on whether the doctrine of marriage by estoppel should be applied in the circumstances of this case. While the respondent’s expert, Martha Child, opined that the doctrine of marriage by estoppel should be invoked here, the appellant’s expert, Jason Ridenour, thought that it should not, because even though they were unaware of the requirement, the parties knew they had not obtained a Tennessee marriage licence. [12] The trial judge found that the religious ceremony did not create a valid marriage under Tennessee law because the parties did not obtain a marriage licence. However, he determined that it was unnecessary to resolve the question as to whether the Tennessee doctrine of marriage by estoppel should be applied to validate the parties’ formally invalid marriage. He concluded that Ontario law applied because the parties spent their entire married life in Ontario and the respondent was seeking the division of assets that is governed by the law of the parties’ domicile. The trial judge determined that it is the law of the province of Ontario that controls the legal significance of the post-ceremony events. While not a valid marriage under Tennessee law, the parties lived as a married couple in Ontario. According to the trial judge, whether subsequent events created a valid marriage should therefore be determined by Ontario law. [13] The trial judge considered and applied the following definition of “spouse” under ss. 1(1)(a) and (b) of the FLA : “spouse” means either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. [14] He concluded that s. 1(1)(b) did not apply because the marriage was not voidable or void, given that there was no question that the parties had the legal capacity to enter into a marriage. In determining whether the parties were “married to each other” and therefore “spouses” under s. 1(1)(a), he looked at the criteria under s. 31 of the Marriage Act , which provides as follows: If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence. [15] The trial judge concluded that the criteria for a deemed valid marriage under s. 31 of the Marriage Act had been met for the following reasons: 1. The parties’ marriage was solemnized in good faith because there was no evidence of bad faith and both parties wanted to marry and did so in a religious ceremony. 2. The parties must have intended to follow the Marriage Act because the respondent wanted to be legally married and therefore intended to comply with the law. There was no intentional or deliberate non-compliance or indifference as to compliance. 3. There was no evidence that either party was under a legal disqualification to contract marriage. 4. The parties lived together and cohabited as a married couple after the religious ceremony at the mosque. [16] As a result, the trial judge determined that the Tennessee religious ceremony was deemed to be a valid marriage pursuant to s. 31 of the Marriage Act and the parties were therefore spouses within the meaning of s. 1(1)(a) of the FLA . As such, they were able to access the property division, equalization, and security provisions of Parts I and II of that Act. Issues [17] I would summarize the appellant’s principal submissions as follows: 1. The trial judge erred in applying s. 31 of the Marriage Act to validate a ceremony that took place in, and was formally invalid under the laws of, Tennessee. The law of the jurisdiction where the marriage was performed ( lex loci celebrationis ) is the sole consideration in determining formal marriage validity. Section 31 of the Act applies only to marriages that were solemnized in Ontario and cannot be imported into the law of Tennessee. Under Tennessee law, the parties’ marriage was invalid and cannot be validated by the application of the Tennessee equitable doctrine of marriage by estoppel because the parties knew they had not obtained a marriage licence. If the marriage is invalid in the place where it was solemnized, it cannot be a valid marriage anywhere else. 2. Alternatively, if s. 31 is applicable to marriages solemnized outside of Ontario, the trial judge misinterpreted its provisions by considering the respondent’s subjective good faith and intention as to the legality of the marriage and compliance with the Act. Section 31 was designed to deal with inadvertence, absences, irregularities, or insufficiencies in the process and was not intended to apply to a ceremony that totally ignored all formalities of the Marriage Act and the process itself. Alspector v. Alspector (1957), 9 D.L.R. (2d) (Ont. C.A.), was rendered prior to the enactment of the FLA and has been overtaken by this court’s approach in Debora v. Debora (1999), 167 D.L.R. (4th) 759 (Ont. C.A.). Analysis Standard of Review [18] The issues argued by the appellant involve the interpretation of s. 31 of the Marriage Act . As such they raise questions of law reviewable on a standard of correctness. As I shall explain, in my view, the trial judge made no error of law. (i) Can s. 31 of the Marriage Act apply to validate a marriage solemnized outside of Ontario? [19] I see no error in the trial judge’s conclusion that s. 31 of the Marriage Act applies to validate the parties’ formally invalid marriage notwithstanding that it was solemnized in Tennessee. [20] In my view, the appellant’s position that s. 31 can only apply to marriages solemnized in Ontario represents an overly narrow and technical interpretation of s. 31. It undermines and is inconsistent with the public policies underlying family law legislation in Ontario that support the presumption of the validity of marriages entered into anywhere in good faith where the parties have lived as, and held themselves out to be, a married couple. [21] The modern approach to statutory interpretation requires that, unless ambiguous, the provisions of a statute are to be interpreted in accordance with their plain meaning and legislative purpose: Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21. The appellant does not submit that s. 31 is ambiguous. Rather, he urges an interpretation that, in my view, does not respect the plain meaning of s. 31’s provisions or its legislative purpose. [22] For ease of reference, I reproduce the provisions of s. 31: If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage , and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence. [23] The appellant argues that persons married in Tennessee or elsewhere cannot intend to be married under the laws of Ontario but, rather, can only intend to be married under the laws of the place where the marriage is solemnized or performed. [24] However, if s. 31 of the Act applied only to marriages performed in Ontario, the legislature could have easily included that requirement. Instead, such limitation is absent from s. 31. It is one among several provisions in the Marriage Act that apply to persons, like the parties here, who were married outside of Ontario but are domiciled in Ontario when the Act is invoked. For example, s. 1(2) provides that: “This Act does not apply in respect of any ceremony or form of marriage gone through by two persons who are married to each other by a marriage previously solemnized in accordance with this Act or recognized as valid in Ontario ” (emphasis added). And s. 8(3) specifically refers to the dissolution or annulment of a previous marriage “elsewhere than in Canada” with respect to the prohibition of the issuance of a licence in certain circumstances. [25] This interpretation is also consistent with well-established conflict of law principles. As the appellant correctly points out, the formal validity of a marriage is determined by the law of the jurisdiction where the marriage is celebrated, the “ lex loci celebrationis ”: Berthiaume v. Dastous , [1930] 1 D.L.R. 849 (P.C.), at pp. 851, 853; Brook v. Brook (1861), 11 E.R. 703 (H.L.); Janet Walker, Castel & Walker: Canadian Conflict of Laws , loose-leaf (ReI. 82-9/2020), 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005) vol. 2, at para. 16-2. As noted by the author in Canadian Conflict of Laws , at para. 16-2: The lex loci celebrationis governs the formalities surrounding the marriage ceremony, including such questions as whether a religious ceremony is necessary or sufficient; whether a marriage may be constituted per verba de praesenti , that is, by an informal exchange of consent; whether a marriage may be celebrated by proxy; or simply by the couple or one of them or someone authorized by them reporting the marriage to the appropriate governmental body. [Footnotes omitted.] [26] However, whether a marriage is formally invalid under the lex loci celebrationis is a different question from whether it can be deemed legally valid. [27] Section 31 contemplates marriages that are otherwise not legally valid until the provision “deems” them to be so. It is the law of the jurisdiction where the parties reside that applies to the question of whether the marriage will be legally validated notwithstanding its formal irregularities. Julien D. Payne and Marilyn A. Payne explain in Canadian Family Law , 8th ed. (Toronto: Irwin Law, 2020), at p. 16: “Although based on a contract between the parties, marriage is a status to which the state attaches its own conditions as to its creation, duration, and consequences” (footnote omitted). As this court reiterated in Alspector , at pp. 685-86, a competent court has jurisdiction to define matrimonial status and, in particular, to declare a marriage valid. [28] In the same way, the appellant’s reliance on s. 4 of the Marriage Act is in my view misplaced. Section 4 stipulates that “[n]o marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns”. However, these provisions do not limit the use of the word “solemnized” in s. 31 to marriages performed in Ontario. Rather, s. 4 refers to the question of formal validity. While they must be read together, sections 4 and 31 serve different purposes. [29] The legal validation of marriages also reflects the long-standing societal importance of marriage that, in the face of a dispute between the parties, favours deeming the marriage valid. As the Supreme Court stated in Porteous v. Dorn et al. , [1975] 2 S.C.R. 37, at pp. 40-41: If persons live together as man and wife for such length of time and in such circumstances as to have acquired local repute as married a presumption that they are legally married may arise, which can only be displaced by cogent evidence to the contrary. [30] See also Powell v. Cockburn , [1977] 2 S.C.R. 218. [31] Section 31 is a validation clause that protects a marriage contracted in good faith from invalidity on the ground of formal irregularities: H.R. Hahlo, Nullity of Marriage in Canada: With A Sideways Glance At Concubinage And Its Legal Consequences , (Toronto: Butterworth & Co. (Canada), 1979), at p. 19. As the authors of Canadian Family Law , at p. 19, state: “Non-compliance with statutorily presented formalities, though subject to penalties, does not render the marriage void unless the statute expressly or by necessary implication invalidates the marriage” (footnote omitted): see also Peppiatt v. Peppiatt (1916), 30 D.L.R. 1 (Ont. C.A.), at pp. 10-12; Kerr v. Kerr and Ontario (Attorney General) , [1934] S.C.R. 72; Clause v. Clause (1956), 5 D.L.R. (2d) 286, at pp. 292-93. [32] Strict compliance with the statutory requirements for a formally valid marriage licence is therefore not required to invoke the deeming validity provisions of s. 31. If that were so, there would be no need for s. 31. As this court held in Alspector , “the Legislature did not assume, believe or expect that every couple who should intermarry in the Province would be familiar with this Act. It would be the rare case, indeed, in which either of them would know of the existence of the Marriage Act ” (emphasis in original): at p. 687. [33] I also note that section 31 has existed more or less in the same form since at least 1896 and the history of validating formerly invalid marriages extends back to legislation enacted in the province of Upper Canada: The Marriage Act, 1896 , S.O. 1896, c. 39, s. 29; William Renwick Riddell, “The Law of Marriage in Upper Canada” (1921) 2 Can Historical Rev 226. The historical need for the legal validation in Ontario of marriages formally solemnized outside of Ontario likely stems from the practical reality that not all of the hundreds of thousands of individuals who have settled in this province have been in a position to prove the formal validity of their marriages. This practical difficulty, along with the strong presumption in favour of the “regularity and validity” of marriage, was observed by Robinson C.J. for the Upper Canada Court of Queen’s Bench in Breakey v. Breakey (1846), 2 U.C.Q.B. 349, at p. 354: Now I take the principle of law to be, that on all questions of pedigree arising in a contest about property, the presumption is strong in favour of the regularity and validity of the marriage, especially when the parties have lived together as man and wife for twenty or thirty years, and have been so reputed till the connection has been dissolved by death, and when they have left issue. The presumption is indeed so strong, that those who would impeach the validity of the marriage are required to make the alleged illegality clearly appear. It would be cruel, as regards the feelings and interests of parties, if the law were not in this respect rigid, and the hardship in this country would be grievous, where so many thousands of people have emigrated from distant countries, and are of that station in life that they cannot be supposed always to have preserved or to be able to procure such evidence as could satisfy any doubts and cavils in regard to the regularity of their marriages…. [34] As the court concluded in Smith v. Waghorn , 2012 ONSC 496, upon finding the requisite intention to comply for the purposes of applying s. 31 of the Marriage Act to validate a marriage celebrated in Florida, absent evidence to the contrary,“[i]t would be unusual that a person following the laws of one state intended to be married within that jurisdiction but not married in another jurisdiction”: at para. 42. [35] As a result, I would not give effect to this argument. [36] In my view, s. 31 of the Marriage Act can apply to validate a marriage solemnized outside of Ontario. (ii) If s. 31 applies to marriages solemnized outside of Ontario, can a court consider the subjective intention of the parties to comply with the Act ? [37] The appellant submits that even if s. 31 of the Marriage Act can apply to marriages solemnized outside of Ontario, it was an error to consider the parties’ subjective good faith and intention. For the appellant, the words, “intended to be in compliance with this Act”, mean that the parties objectively intended to be in compliance with the Marriage Act of Ontario and that the objective nature of the parties’ intention requires them to take objectively reasonable steps to formally comply with the Act. The consideration of either party’s subjective intentions is irrelevant and would lead to confusion and uncertainty. The trial judge therefore erred in taking into account the respondent’s subjective intentions to marry the appellant. Moreover, the appellant argues, the applicable deeming provision of s. 31 in this case relieves against only technical irregularities and insufficiencies with respect to the issue of the marriage licence [2] ; the failure to obtain a marriage licence is not a technical irregularity or insufficiency. [38] Here too, in my view, the appellant’s approach is overly strict, does not represent a plain reading of s. 31, and undermines its purpose. [39] I reiterate the well-established public policy discussed above that favours marriage as a social institution, which, in my view, is reflected in s. 31 of the Marriage Act . [40] I also disagree with the appellant’s position that the parties’ subjective intentions to comply with the law of Ontario are irrelevant. Neither the English nor the French language version of s. 31 precludes the assessment of the parties’ subjective intentions to comply nor have they been excluded from judicial consideration. As this court confirmed in Alspector , even the subjective intentions of one party are relevant. However, whether the evidence of an intention to comply is credible or reliable is another question. The issue of whether the parties or one party intended to conform with the law is a question of mixed fact and law that involves issues of credibility and reliability for a judge to determine. [41] Moreover, the curative provisions of s. 31 are not limited, as the appellant suggests, to situations involving mere “irregularity or insufficiency” in the issue of a marriage licence. The appellant’s proposed interpretation omits the express curative provision in s. 31 for the “absence” of the issue of a marriage licence [3] , which is what occurred here. [42] That said, I agree with the appellant’s position that “intended to be in compliance with this Act” requires something more than the condition that the parties have solemnized their marriage “in good faith”. Otherwise, there would be no need to include the requirement of “intended to be in compliance” in addition to the requirement that the marriage be “solemnized in good faith”. As the author of Nullity of Marriage states at p. 20: While failure to comply with prescribed statutory formalities does not, as a rule, invalidate a marriage – at least where the parties acted in good faith – there must always be it is submitted, something which, at least in appearance, amounts to a proper marriage ceremony. An informal consent marriage, even if it was contracted by the parties in good faith and was followed by their cohabitation as man and wife, can never qualify as a marriage. It is a “non-marriage”. [Footnote omitted.] [43] See also: Dutch v. Dutch (1977), 1 R.F.L. (2d) 177 (Ont. Co. Ct.), at pp. 187-89. [44] In my view, a marriage is “intended to be in compliance with this Act” where there is an intention to create a formally binding legal marriage, that is, one that would be recognized for civil, as opposed to only religious, purposes. That intention will not be present where the parties know of the relevant formal legal requirements and deliberately choose not to follow them, notwithstanding that their marriage is recognized as a valid religious ceremony or was solemnized in good faith. But that intention may be found where the parties believe they are marrying for all purposes, any non-compliance was non-deliberate, and where the parties’ subsequent behaviour confirms that they considered themselves, from the time of the marriage ceremony, to have become legally married. [45] As the following review of the relevant case law in Ontario demonstrates, this is the approach that has been followed uniformly for more than fifty years by the courts that have considered the “intention to comply” provisions of s. 31 and its predecessors. I disagree with the appellant’s submission that there is any conflict in the approach taken by courts or that this approach has led to divergent or unpredictable results. [46] I begin with a review of Alspector and Debora . In my view, Alspector has not been overturned by Debora ; these cases can be read consistently with each other. The key factual distinction between them is that in Debora , unlike in Alspector , there was a finding of deliberate non-compliance with Ontario law. [47] Alspector involved circumstances where the parties were married in Ontario by a cantor in a Jewish religious ceremony without a marriage licence. The husband made inquiries as to whether a marriage licence was required and believed it was not because the parties intended to live in Israel. The wife relied on the husband’s advice that a marriage licence was not required. This court accepted the wife’s subjective intention to comply with the law of Ontario to enter into a formally valid marriage and held that her subjective intention was sufficient to satisfy “the intention to comply” provision of the predecessor to s. 31 of the Marriage Act . [48] In comparison, Debora involved materially different factual circumstances and therefore is distinguishable from Alspector and the present case. The parties participated in a religious ceremony in 1987 and later went through a civil ceremony in 1994. The court interpreted “marriage” in the definition of spouse under s. 1(1) of the FLA as meaning a marriage under the Marriage Act . This court held that while the 1994 ceremony was valid, the 1987 religious ceremony did not create a formally valid marriage because the parties had deliberately not complied with the law of Ontario. Although aware of the requirement, they intentionally did not register their marriage following the 1987 ceremony so that the husband could continue to receive a widower’s pension. This court focused its analysis on the meaning of “good faith on the part of the person asserting a right” under s. 1(1)(b) of the FLA and determined, citing Harris v. Godkewitsch (1983), 41 O.R. (2d) 779 (Ont. Prov. Ct.), at p. 781, that “spouse” under s. 1 should not be extended to cover a person who participated in a ceremony in Ontario that was “clearly and deliberately” outside the Marriage Act , notwithstanding the marriage was solemnized in “good faith”: Debora , at pp. 762-63. [49] I turn next to consider what the appellant has described as two conflicting lines of cases. In my view, there is no conflict. Rather, the divergent results in these cases stem from their divergent facts. A review of the caselaw reveals a consistent approach: marriages are deemed valid provided there is some evidence of intent to comply with marriage law and absent deliberate non-compliance. [50] I start with the cases where the courts declined to validate marriages under s. 31 of the Marriage Act . [51] In Harris , the application judge found that the applicant chose not to be married for the purposes of Ontario law “but, instead, to be committed personally and spiritually through the Jewish ceremony” because of “a desire not to be in a position to make any property claims against the respondent”: at p. 780. The marriage was not deemed valid. [52] Kanafani v. Abdalla , 2010 ONSC 3651, 89 R.F.L. (6th) 189, is similarly distinguishable from Alspector and the present case on its facts. In 2004, the parties were married in Toronto under Sharia law by an Islamic religious leader. They never obtained a marriage licence or registered the marriage. They subsequently attended before a judge in the United Arab Emirates (“UAE”). The focus of the motion for summary judgement was on the subsequent UAE ceremony, which the wife asserted resulted in a valid civil marriage. The motion judge found there was no intention to comply with Ontario law and concluded that “on the undisputed facts” the religious marriage was not valid under the Marriage Act . She held that the certificate issued by the judge in the UAE did not suggest a new valid marriage ceremony had occurred. Her conclusion was supported by the wife’s contradictory assertions about whether the UAE ceremony created a new marriage or merely registered the Toronto marriage. [53] Chhokar v. Bains , 2012 ONSC 6602, involved a finding of deliberate non‑compliance. The parties had participated in a Sikh religious marriage ceremony in Ontario. The trial judge accepted the respondent husband’s evidence that the applicant wife, prior to the religious marriage ceremony, did not want to obtain a marriage licence. He concluded that she knew of the need for a marriage licence and did not intend to comply with the laws of Ontario. As a result, he declined to validate the marriage under s. 31 of the Marriage Act . [54] In Aden v. Mohamud , 2019 ONSC 6493, the court declined to deem the marriage valid pursuant to s. 31 of the Marriage Act because the parties did not intend to comply with the law of Ontario. The parties participated in a religious marriage ceremony in 2007 without registering the marriage. The husband later married another woman in 2014, which was registered in Ontario. The court held that this arrangement was inconsistent with a legal marriage in Ontario such that the marriage was not valid pursuant to s. 31 of the Marriage Act . The court, at para. 22, rejected the wife’s stated belief that she assumed her marriage was legal on the basis that had she truly believed that she was married according to the law of Ontario, her marriage would have ended in 2014 when her husband informed her of his intent to have more than one wife. [55] Moza and Thusu (Re) , 2021 ONSC 1552, 54 R.F.L. (8th) 132, is the most recent reported decision to consider s. 31 of the Marriage Act . The application judge refused to validate the parties’ marriage celebrated in a religious ceremony in India because she was not satisfied that there was evidence of the formal requirements under Indian law nor of an intention to comply with Ontario law. [56] By contrast, the cases where courts have validated marriages under s. 31 of the Marriage Act all involve findings that at least one of the parties intended to comply with the law of Ontario. [57] The court in Friedman v. Smookler , [1964] 1 O.R. 577 (Ont. S.C.), deemed a marriage to be valid because the parties intended to comply with the Act. Following the ceremony, the parties had lived together as man and wife. Although they did not obtain a licence and the celebrant was not an authorized marriage officer, the court held that it is enough that the persons to the marriage act under a belief that a religious ceremony will be recognized as a legal marriage. [58] Like the present case, in Ayoub v. Osman , 2006 CanLII 9309 (Ont. S.C.), the court considered whether the parties’ formal religious marriage ceremony officiated by an Imam in Ontario produced a formally valid marriage where no marriage licence had been obtained and the marriage was not registered. The court validated the marriage under s. 31 of the Marriage Act because the parties considered themselves formally married to one another, lived together as husband and wife for almost 12 years, and had two children. [59] The parties’ subjective intention to marry one another was also an important factor in the court’s decision to validate the marriage in Smith . In Florida, the parties had participated in a marriage ceremony before a duly authorized officer and obtained a marriage licence. However, they had misrepresented the husband’s name to the Florida court and marital officials. The application judge applied s. 31 to validate the marriage. He concluded that although the applicant knew that the respondent had misrepresented his name for employment purposes, she did not understand that this misrepresentation would invalidate their marriage. He found on the evidence that the parties intended to enter into a legally binding marriage “and thereafter to be so considered in accordance with the laws of all jurisdictions, including the Province of Ontario”: at para. 42. This finding was fact-specific. After the marriage ceremony, the parties cohabited, lived together, and repeatedly represented to the public and their families that they were married to one another. [60] In Isse v. Said , 2012 ONSC 1829, 19 R.F.L. (7th) 413, the parties participated in an Islamic wedding ceremony in Ontario according to Sharia law. No marriage licence was issued and the marriage was not registered under the law of Ontario. The court determined that the marriage was valid under s. 31 of the Marriage Act because the ceremony was solemnized in good faith and the parties intended to comply with the Marriage Act . Importantly, the court accepted that the wife assumed that the religious ceremony legalized the marriage and did not know that any further steps were required. [61] Jama v. Basdeo , 2020 ONSC 2922, is also factually similar to the present case. The parties participated in a traditional Islamic wedding ceremony and intended to be legally married. While there were witnesses to the ceremony, the parties did not obtain a marriage licence and there was no evidence that the officiant was authorized to solemnize marriages. The trial judge concluded that both parties intended to comply with the law to enter into a valid marriage. In particular, she accepted the wife’s evidence that she was not aware that a marriage licence was required in order to make the marriage legal and that had she known, she would have obtained a licence. As a result, the trial judge validated the marriage under s. 31 of the Marriage Act. Application of the law to the facts of this case [62] Each of the decisions that I have just reviewed turned on the particular factual circumstances of each case. In each, it was crucial whether there was evidence of an intention to comply or, conversely, of deliberate non-compliance with the formal requirements of the law in Ontario [4] . [63] Here, the parties believed that the marriage ceremony created a binding marriage in conformity with the laws of Tennessee and Ontario, and their subsequent conduct shows they acted on that belief. That belief, as the trial judge found, correctly in my view, indicated an intention to enter into a valid, legally recognized marriage. His finding was grounded firmly in the evidence. Unlike in some of the cases reviewed above, there was no evidence in the present case that either party intended not to be legally married or was deliberately not complying with the law of Ontario. Other than the failure to obtain a marriage licence, the parties complied with all the other statutory requirements for a valid marriage under Tennessee or Ontario law. They were married by an Imam. There were witnesses present at the ceremony. They had the capacity to enter into the marriage and consented to do so. Most important, neither of them knew that a marriage licence was required to create a formally valid marriage. In other words, they believed that they had entered into a legally binding marriage that would be legally binding anywhere, including under the laws of Ontario, where they intended to reside following the ceremony. [64] There is also no question that the parties complied with all of the other provisions of s. 31 of the Marriage Act : they entered into their marriage in good faith; they were married in a religious ceremony in a mosque by an Imam which was consistent with their religious faith at the time of the marriage; they had the capacity to enter into marriage and consented to do so; and they lived as a married couple following the religious ceremony: the respondent wore a ring and the parties indicated they were married as their status on various legal documents, including income tax returns, hospital records, birth records, and mortgage documents. [65] As a result, I see no error in the trial judge’s conclusion that the provisions of s. 31 of the Marriage Act were met and that the marriage was deemed valid. The onus is on the appellant to rebut the presumption of a valid marriage: Powell , at p. 225. In my view, he has failed to do so. [66] In sum, the parties intended to comply with whatever law governs the solemnization of marriages in Tennessee that would be recognized in Ontario. Denying the parties’ marriage would work an injustice on the respondent who relied on the appellant and unjustly relieve the appellant of his legal obligations in respect of the marriage that he voluntarily arranged, entered into, and derived the benefit of for 18 years. As this court stated in Alspector , “the law will not permit him in a subsequent action to plead his own fraud upon the bride in order to have the ceremony declared a nullity”: at pp. 687-88. This would run counter to the long‑standing presumption of the validity of marriage and frustrate the socially important goal of avoiding the very circumstances that s. 31 of the Marriage Act was intended to address. Disposition [67] For these reasons, I would dismiss the appeal. [68] If the parties cannot agree on the disposition of costs, I would permit them to submit brief written argument of no more than two pages, plus a bill of costs, within ten days of the release of these reasons. Released: September 24, 2021 “D.B.” “L.B. Roberts J.A.” “I agree. David Brown J.A.” “I agree. B. Zarnett J.A.” [1] Now called decision-making responsibility and parenting time. [2] The curative provisions of s. 31 also may relieve against the circumstance where the person who solemnized the marriage was not authorized to solemnize marriages; however, this was not an issue raised on appeal. [3] The French language version of s. 31 also stipulates clearly that its curative provisions apply in the absence of a licence, and not merely in the circumstance of an irregularly issued licence, as follows: « Le mariage est valable, même si le célébrant n’était pas autorisé à le célébrer et même s’il n’y a pas eu de publication de bans ni de délivrance de licence , ou s’il s’est glissé quelque irrégularité dans cette publication ou cette délivrance , quand les parties à la célébration du mariage étaient de bonne foi, désiraient se conformer à la présente loi, n’étaient sous le coup d’aucun empêchement légal de contracter mariage et vivent ensemble et cohabitent comme couple marié depuis le mariage. » [Emphasis added]. [4] The appellant also relied on three judgments of courts outside of Ontario. None of them is binding on this court. Furthermore, they are of little assistance in interpreting Ontario statutes and are factually distinct. For example, in Bussey v. Dwyer , 2017 NLCA 68, the case turned on the parties’ deliberate choice not to enter into a legal marriage but exchange rings in a “peculiar ceremony” at their home without an officiant, a witnesses or a licence, and where they read out a bible verse to each other used at weddings.

COURT OF APPEAL FOR ONTARIO CITATION: Khairzad v. Erroussa, 2021 ONCA 667 DATE: 20210927 DOCKET: C68805 Strathy C.J.O., Pepall and Pardu JJ.A. BETWEEN Seyar Khairzad Applicant (Appellant) and Ghizlane Erroussa Respondent (Respondent) James A. Brown, for the appellant John V. Grant, for the respondent Heard: September 16, 2021 by video conference On appeal from the order of Justice Lauren Bale of the Superior Court of Justice, dated March 31, 2020, with reasons reported at 2020 ONSC 1787. REASONS FOR DECISION [1] The appellant, Seyar Khairsad, appeals from a March 31, 2020 order: (i) dismissing his motion to change the consent decision-making and parenting time order made by Pazaratz J. on August 11, 2017; and (ii) increasing the appellant’s monthly child support from $179 to $359 based on an imputed annual income of $40,000. [2] The appellant also brings a motion for leave to adduce fresh evidence on his annual income for the years 2017, 2018, his employment status, and leasing arrangements. [3] At the conclusion of their oral submissions, we advised the parties that the appeal was dismissed with reasons to follow. These are those reasons. Decision-Making Responsibility and Parenting Time [4] The parties separated prior to the birth of their daughter, born in December 2016. She has always resided with the respondent. In 2017, the appellant was charged with assault of the respondent and entered into a peace bond. The motion judge found that the respondent is a victim of domestic violence at the hand of the appellant. [5] The appellant submits that the motion judge erred by failing to award joint decision-making responsibility (previously referred to as custody) to the appellant and by refusing to increase the appellant’s parenting time (previously referred to as access) to the parties’ daughter. [6] The motion judge declined to find a material change with respect to decision-making responsibility. By all accounts, the parties’ daughter was thriving under the primary care and decision-making authority of the respondent. The evolution of the appellant’s increased role in his daughter’s life did not amount to a change in circumstances warranting a change in the decision-making responsibility order. Furthermore, even if there were a material change, a joint decision-making arrangement would be unworkable. The motion judge noted the history of abuse, the ongoing difficulties in communications, and the appellant’s animosity and distrust of the respondent, all of which precluded any such arrangement. [7] As for parenting time, before the motion judge, the respondent conceded that there had been a material change of circumstances since the August 11, 2017 order due to the daughter’s age and stage of development. The motion judge adjusted the appellant’s parenting time to consist of alternate weekends from Friday at 4 p.m. to Sunday at 7 p.m., every Tuesday afternoon from 4 p.m. to 7 p.m., and Tuesdays from 9 a.m. to 7 p.m. during the months of July and August on certain terms. [8] The appellant asks this court to vary the decision-making order and invites us to adjust the parenting times contained in the order granted, saying the order failed to reflect the principle of maximum contact consistent with the best interests of the child. [9] An appeal court should only intervene in a parenting order or family support decision where there is a material error, a serious misapprehension of the evidence, or an error in law: Hickey v. Hickey , [1999] 2 S.C.R. 518, at para. 2; Van de Perre v. Edwards , 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 12. [10] We see no such errors in the motion judge’s parental decision-making and parenting time decision. She gave detailed and thoughtful reasons. She applied the correct legal principles and her findings and conclusions were fully justified on the record before her and anchored, as they ought to have been, in the best interests of the child in this case. We see no basis on which to interfere. Child Support [11] On the issue of child support, the appellant is a painting contractor and was 38 years of age at the time of the hearing. The motion judge observed that the 2017 order was silent on the quantum of the appellant’s income but that a monthly payment of $179 would correspond with an income of approximately $22,500 under the Child Support Guidelines. The 2017 order required the parties to provide updated annual income disclosure but neither did. [12] On September 24, 2019, Chappel J. had ordered the appellant to make financial disclosure, but he failed to produce a sworn financial statement or any documentary evidence on his 2017, 2018 and 2019 income as ordered. Based on the failure to comply, the passage of time and the likelihood that the appellant’s income had not remained static, the motion judge found a material change in circumstances. She imputed an annual income of $40,000 to him based on a variety of factors including the number of hours he worked each week, his hourly rate, the availability of work, and collateral evidence of his lifestyle such as his rental of a Maserati motor vehicle. This imputation resulted in an order of monthly child support of $359. [13] Again, we see no basis to interfere. Based on the record before her, the inferences and conclusions drawn by the motion judge were reasonable. Fresh Evidence [14] We also dismiss the request for leave to admit fresh evidence. [15] On the issue of child support, the appellant failed to comply with both the 2017 and 2019 disclosure orders. It is not now open to him to seek to admit evidence available to him at the time of the motion to achieve a better result on appeal. As stated in R.F. v. J.W ., 2021 ONCA 528, at para. 11, “the proper place for new evidence about changed circumstances --- if in fact the threshold of material change can be met --- is a motion to change before the court that has original jurisdiction, and not in the context of an appeal.” In any event the appellant’s tax returns did not reflect his earning capacity, for the reasons indicated by the motion judge. [16] Although the criteria described in Palmer v. The Queen, [1980] 1 S.C.R. 759, are more flexible where an appeal involves the best interests of a child (see for example Goldman v. Kudelya , 2017 ONCA 300, [2017] W.D.F.L. 3127, at para. 25), the fresh evidence on the appellant’s new lease arrangements could not possibly have affected the parenting decision reached by the motion judge. We decline to grant leave to admit that evidence. [17] For these reasons, the appeal is dismissed as is the motion for leave to admit fresh evidence. [18] The parties were invited to make written submissions on costs. Having considered the submissions made, the appellant is to pay the respondent’s costs of the appeal fixed in the amount of $7,000 inclusive of disbursements and applicable tax. “G.R. Strathy C.J.O.” “S.E. Pepall J.A.” “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Narwhal International Limited v. Teda International Realty Inc., 2021 ONCA 659 DATE: 20210927 DOCKET: C68786 Strathy C.J.O., Pepall and Pardu JJ.A. BETWEEN Narwhal International Limited Applicant (Appellant) and Teda International Realty Inc. Respondent (Respondent) Gennady Tcherny, President of Narwal International Limited, acting as agent for the appellant, with leave of the Court Stephanie Tassopoulos, for the respondent Heard: September 17, 2021 by video conference On appeal from the order of Justice Breese Davies of the Superior Court of Justice, dated January 7, 2021. REASONS FOR DECISION [1] This appeal concerns a dispute about the renewal term in a commercial lease. [2] In March 2019, the appellant tenant notified the respondent landlord of its intention to renew the lease for a five-year period. Protracted negotiations between the parties did not result in agreement on the rent to be paid during the renewal period. The appellant commenced an application for a declaration that it was entitled to renew the lease and for an order setting the rent for the renewal period. [3] There were two principal issues before the application judge. The first concerned which of two documents was actually the agreement to lease executed by the parties. This was significant because the renewal provisions in the two documents were different. [4] After reviewing the conflicting evidence tendered by the parties, the application judge found that the document tendered by the respondent was the agreement made between the parties. She gave cogent reasons for her conclusion. [5] Unlike the document proffered by the appellant, which provided that the rent on renewal would be determined by reference to prevailing market rates for similar space, the document produced by the respondent, and accepted by the application judge, simply stated that the net rental rate for the five-year renewal period was to be “discussed between landlord and tenant”. [6] The application judge noted that a right to renew a lease on the same terms except for the rental rate does not create an enforceable legal obligation, other than an obligation on the landlord to negotiate in good faith: referring inter alia to Godson v. P. Burns & Co. (1919), 46 D.L.R. 97 (S.C.C.); Molson Canada 2005 v. Miller Brewing Company , 2013 ONSC 2758, 116 O.R. (3d) 108, at paras. 95-108. [7] The second issue was whether the landlord had negotiated in good faith with respect to the rental rate for the renewal term. [8] After setting out the chronology of the renewal discussions in considerable detail, the application judge found that “[the respondent] acted in good faith during its negotiations with [the appellant] and ultimately made a reasonable offer to [the appellant] for the renewal.” The appellant rejected that offer, although it subsequently attempted to accept the offer after it received notice of termination of the lease. Again, the application judge gave detailed and thoughtful reasons for her finding of good faith. [9] The application judge therefore dismissed the appellant’s application. [10] In this appeal, the appellant challenges the application judge’s findings on both central issues: the determination of which of the two documents constituted the agreement to lease and whether the respondent had engaged in good faith negotiations to renew the lease. [11] The appellant also seeks to introduce fresh evidence on the appeal. In essence, that evidence challenges: (a) the respondent’s evidence on the application concerning the appropriate market rent for the premises; (b) the respondent’s conduct after the hearing of the application; and (c) the conduct of the respondent and its counsel in related proceedings. [12] We decline to admit the fresh evidence. While some of it relates to events that occurred after the application had been heard and was not available at the hearing, we are not satisfied that any of the evidence is relevant to the issues to be determined on this appeal. In any event, we are satisfied that even if the evidence were to be admitted, it would not have affected the outcome as it does not call into question the application judge’s findings of fact on the central issues: see R. v. Palmer , [1980] 1 S.C.R. 759. [13] Turning to the appeal itself, the appellant invites us to revisit the findings of fact made by the application judge. In effect, it argues that the application judge erred in finding that the agreement to lease was the document tendered by the respondent and in finding that the respondent had negotiated in good faith. [14] Unfortunately, the appellant misunderstands the function of an appellate court. It is not this Court’s responsibility to conduct a second trial. In the absence of a palpable and overriding error in the application judge’s assessment of the evidence, an appellate court must accept the judge’s findings of fact. A palpable and overriding error is an “obvious error that is sufficiently significant to vitiate the challenged finding of fact”: Longo v. MacLaren Art Centre , 2014 ONCA 526, [2014] O.J. No. 3242, at para. 39. It has also been said that: A palpable error is one which is clear to the mind or plain to see, so obvious that it could be easily seen or known or readily or plainly seen. An overriding error is one which had a sufficiently decisive effect, such that it would justify intervention and review on appeal: 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74 , 2020 ONCA 843, 328 A.C.W.S. (3d) 66, at para. 1. [15] The application judge made no such error. She gave thorough and cogent reasons for her findings of fact, some of which were based on her assessment of the credibility of the respondent’s witness. Her findings of fact are entitled to deference and are dispositive of this appeal. [16] The appeal is dismissed. We did not receive submissions on costs. If costs are sought, they may be addressed by written submissions. The respondent shall serve and file its submissions within 10 days of the issuance of the reasons. The appellant shall have 10 days from receipt of the respondent’s submissions to serve and file its submissions. The submissions shall not exceed three (3) double-spaced pages, excluding cost outlines. They shall be filed with the Registrar of this Court, and copied to the opposing party, either by email or by ordinary mail. “G.R. Strathy C.J.O.” “S.E. Pepall J.A.” “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ottawa-Carleton Standard Condominium Corporation No. 671 v. Friend, 2021 ONCA 666 DATE: 20210927 DOCKET: C69072 Watt, Benotto and Trotter JJ.A. BETWEEN Ottawa-Carleton Standard Condominium Corporation No. 671 Applicant (Respondent) and Anthony Marcus Friend and Henriette Friend Respondents (Appellants) Samuel Zakhour, for the appellants Cheryll Wood and David Lu, for the respondent Heard: September 22, 2021 by video conference On appeal from the order of Justice Paul B. Kane of the Superior Court of Justice dated June 4, 2020. REASONS FOR DECISION [1] The appellants are condominium owners. The appellant, Mr. Friend, has a long-standing dispute with the condominium corporation’s Board of Directors and employees, dating back to 2011. He has refused to follow the condominium’s by-laws and rules. He has interfered with contractors attempting to carry out work in the building. He has engaged in a campaign of harassment and rude and demeaning behaviour aimed at members of the Board of Directors and employees of the condominium. He has physically accosted the President of the Board. [2] In 2019, the respondent obtained an interim injunction that restricted Mr. Friend’s ability to communicate with the people he has harassed and/or accosted. He persisted in his behaviour. Consequently, the respondent condominium corporation brought an application under s. 134(1) of the Condominium Act , 1998 , S.O. 1998, c. 19, and r. 14.05(2) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, seeking a permanent injunction against Mr. Friend. [3] The application judge found that Mr. Friend was in violation of s. 117 of the Condominium Act , which provides: “No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.” The application judge held that “injury” includes psychological harm. [4] The application judge further held that, “Mr. Friend’s persistent and ongoing breaches with aggression of the Act and the Condominium’s declaration and rules must be halted.” He ordered that Mr. Friend “cease and desist in conduct that contravenes the Act and/or the Condominiums’ declaration, by-laws and rules”. He restricted Mr. Friend’s ability to communicate with members of the condominium community, including their families. A number of exceptions, however, were built into this prohibition. [5] The appellants challenge the legality and appropriateness of this order. They also apply to adduce fresh evidence in the form of Mr. Friend’s affidavit in which he purports to show that he was treated unfairly at the hearing of the application. We admit the fresh evidence for this limited purpose. It is not admissible, and is irrelevant, to the substantive issues decided by the application judge. [6] The appellants advance a number of grounds of appeal. They submit that the application judge had no jurisdiction to order a permanent injunction because there was no underlying action to which it could attach. We disagree. The application was properly brought under s. 134 of the Condominium Act and provided the jurisdictional footing for the order that was made. [7] The appellants submit that the application judge erred in failing to apply the proper test for a permanent injunction. More specifically, the appellants submit that the trial judge failed to appreciate that the test for obtaining a permanent injunction is different from the test for an interlocutory injunction. While the trial judge did not specifically advert to the test he applied in making the order, the order that he made – limiting communication between Mr. Friend and various members of the condominium community –  was authorized by s. 134(3) of the Condominium Act , which permits a judge to “grant such other relief as is fair and equitable in the circumstances.” [8] The order was “fair and equitable” in the circumstances, based on the findings that the application judge made about Mr. Friend’s behaviour and its impact on those affected. Mr. Friend’s offensive conduct continued after the interim injunction was in place. This, in itself, amply justified the application judge’s order. [9] The appellants submit that the proceedings were unfair because they were denied an adjournment. We disagree. The decision to grant an adjournment is a discretionary one that must be afforded deference on appeal. In this case, the application judge gave thorough reasons for refusing an adjournment, noting that the request was, “but one of a pattern of adjournment requests by Mr. Friend.” [10] We also disagree with the submission that the proceeding was unfair because the application judge failed to consider Mr. Friend’s position on contentious matters. Mr. Friend did not file an affidavit; instead, he relied on a slide presentation and an affidavit filed in a related lien action. As the application judge said, “[m]uch of the materials filed by Mr. Friend do not respond to the issues on this application and instead recite his disputes with the Condominium dating back to 2011 and unrelated matters such as the Condominium’s 2019 Auditor’s Report.” [11] Lastly, and although not pressed in oral submissions, the appellants submit that the application judge should have converted the proceeding to an action because there were facts in dispute. Again we do not agree. The material facts were either admitted to by Mr. Friend or simply not addressed. The application judge’s decision was reasonable. [12] Accordingly, the appeal is dismissed. We award costs to the respondent in the amount of $12,500, inclusive of costs and disbursements. “David Watt J.A.” “M.L. Benotto J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Moses v. Moses, 2021 ONCA 662 DATE: 20210928 DOCKET: C69124 Strathy C.J.O., Lauwers and Sossin JJ.A. BETWEEN Reuben Moses Applicant (Appellant) and Rosy Moses, personally and in her capacity as the Estate Trustee of the primary and secondary estates of Aby Reuben Moses, deceased, and Rachel Moses Respondents (Respondents in Appeal) Gregory M. Sidlofsky, for the appellant Catherine Francis, for the respondent, Rachel Moses Ranjan Das, for the respondent, Rosy Moses, personally and in her capacity as the Estate Trustee of the primary and secondary estates of Aby Reuben Moses Heard: September 3, 2021 by video conference On appeal from the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated January 25, 2021, with reasons reported at 2021 ONSC 587, 64 E.T.R. (4th) 246. REASONS FOR DECISION [1] The application judge dismissed the appellant’s application for a declaration of invalidity of a will made by his late father in 2019, three months before his death (the “2019 Will”). He claimed that the 2019 Will was invalid as a result of undue influence by his mother, the respondent Rosy Moses, and by his sister, the respondent Rachel Moses. [2] In other proceedings, the appellant claims an interest in his father’s property, based in part on proprietary estoppel. [3] The appellant advances two principal submissions. First, he submits that the application judge erred in his interpretation of s. 23 of the Estates Act , which gives a party standing under a will when making a claim to “property affected by the will”. He submits that his civil action against the estate is such a claim. He contends that in rejecting his submission, the application judge incorrectly relied on the decision of the Saskatchewan Court of Appeal in Adams Estate v. Wilson , 2020 SKCA 38, 57 E.T.R. (4th) 1. [4] The appellant’s second submission is that the application judge erred by putting an onus on him to establish the invalidity of the 1996 Will, an issue that would be determined at a later date, if necessary. [5] The application judge found that the appellant had no standing to bring the application to declare the will invalid, either under r. 75.06(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 or under s. 23 of the Estates Act , R.S.O. 1990, c. E.21. He was not a beneficiary under the 2019 Will and, even if the 2019 Will were to be set aside on the ground of undue influence, he would not be affected by the result, because there was an earlier will, made in 1996 (the “1996 Will”), under which the appellant would receive no share on the death of his father – the entire estate would go to his mother. [6] In coming to these conclusions, the application judge made findings of fact concerning the provenance of the 1996 Will and the circumstances of its execution. Those findings were based on evidence tendered by the respondents concerning the discovery of the 1996 Will and its preparation and execution. Rachel Moses swore an affidavit concerning her discovery of the 1996 Will, which had been in the possession of her mother. Although the solicitor who prepared that will was deceased, his former legal assistant swore an affidavit identifying her signature as one of the two witnesses to the will and the signature of the solicitor as the other witness. The assistant deposed that it was the solicitor’s practice that two witnesses were always present when a client executed a will. [7] The application judge noted that the appellant did not cross-examine either Rachel Moses or the lawyer’s assistant. Nor did he provide affidavit evidence that called into question any of the evidence the respondents had adduced. The application judge found that the appellant presented no evidence to support an inference that the 1996 Will was unauthentic or invalid. He found that the appellant “failed to satisfy the low threshold of presenting sufficient evidence to support an inference that he appears to have a financial interest in [his father’s] estate.” He therefore found that the appellant did not have standing under r. 75.06(1). [8] The application judge also found that the appellant’s civil action based on proprietary estoppel did not give him standing to challenge the 2019 Will pursuant to s. 23 of the Estates Act , where he would otherwise have no standing to do so. The outcome of the civil action did not depend on the validity of the 2019 Will. [9] We see no error in the application judge’s reasons. In the circumstances, there was an onus on the appellant to adduce some evidence to call into question the considerable body of evidence adduced by the respondent to establish the validity of the 1996 Will. The conclusion that he failed to do so is entitled to deference. [10] Nor are we persuaded that the application judge erred in the interpretation or application of s. 23 of the Estates Act . The jurisdiction under that provision is discretionary and the appellant has identified no error by the application judge in the exercise of his discretion. [11] In the circumstances, we do not find it necessary to decide whether the decision of the Saskatchewan Court of Appeal in Adams Estate reflects the law of Ontario. [12] At the end of the day, as the application judge found, the appellant may pursue his claims in his civil action against the estate, his mother, and the companies in which his father had interests. [13] The appeal is dismissed. We invited counsel to attempt to resolve the issue of costs. As we have not heard from them, we award costs to the respondent, Rachel Moses, in the amount of $15,000 and to the respondent, Rosy Moses, in the amount of $5,000, both amounts inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “P. Lauwers J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Chen, 2021 ONCA 661 DATE: 20210928 DOCKET: C67135 Paciocco, Nordheimer and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Qi Cong Chen Appellant Darren S. Sederoff and Robert Cutruzzola, for the appellant Alexia Bystrzycki, for the respondent Heard: September 3, 2021 by videoconference On appeal from the sentence imposed on June 27, 2019 by Justice Nancy J. Spies of the Superior Court of Justice. REASONS FOR DECISION [1] We grant leave to appeal and allow the appeal. Although we see no error in the trial judge’s reasoning, a conditional sentence is a fit sentence. Based on her reasoning we are confident that the trial judge would have imposed a conditional sentence had the opportunity been available to her to do so. [2] The terms of the conditional sentence will be prepared and released as soon as reasonably possible. “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R v. Daye, 2021 ONCA 671 DATE: 20210927 DOCKET: M52800 (C68657) Paciocco J.A. (Motion Judge) BETWEEN Her Majesty The Queen Respondent and Jamal Daye Applicant/Appellant Chris Sewrattan and Ashley Sewrattan, for the applicant/appellant Sarah Egan, for the respondent Heard: September 27, 2021 by videoconference ENDORSEMENT [1] On October 2, 2020, Mr. Jamal Daye, a young man with no prior criminal record, received bail pending appeal, on consent, after he was convicted of serious narcotics trafficking charges and sentenced to 5 years and 6 months of imprisonment. On June 24, 2021 he was discovered by police in the bedroom of an apartment in which a loaded handgun was found inside the pocket of a coat. There is evidence that a medical sticker was found in the coat bearing his name, and his mother advised the police that Mr. Daye had rented the apartment for his music business. Another loaded handgun was found in an adjacent bedroom but has not been otherwise linked to Mr. Daye. Weapons and breach charges were laid against Mr. Daye, who now applies to be rereleased pending appeal. The onus is on Mr. Daye and although he is presumed innocent of the new charges, he is not presumed innocent of the original drug charges. [2] In resisting Mr. Daye’s release, the Crown does not rely on the primary or secondary grounds, but argues based on the tertiary ground that Mr. Daye has failed to show that his detention is not necessary in the public interest, given the need to preserve public safety and confidence in the administration of justice. I am not satisfied that Mr. Daye’s release is required in the public interest because I am not persuaded that the interest in reviewability should predominate over the interest in enforceability. [3] Mr. Daye is confident that his appeal will not be long delayed. He urges that he is asking only for short-term bail release, and that a short period of release lessens the public risk, if any, in his release. There is some merit in that submission but the short period pending the appeal also reduces the risk to his liberty in postponing reviewability, particularly given that the bulk of his long sentence is yet to be served. [4] Mr. Daye also relies on the strength of his first ground of appeal, given that there are solid grounds to believe that the trial judge erred in denying exclusion of evidence under s. 24(2) of the Charter after finding a serious breach of Mr. Daye’s right to counsel based on what may have been an erroneous conclusion that the evidence was not obtained in a manner that violated the Charter rights of Mr. Daye. Although Mr. Daye’s appeal is far from frivolous, the ultimate success of this, his strongest ground of appeal, depends upon an ultimate conclusion that the evidence must be excluded pursuant to s. 24(2). The seriousness of the offence and the absence of a causal connection between the breach and the discovery of the evidence materially reduce the prospect of that success, as does the fact that the police did not seek to use Mr. Daye as a source of evidence during the right to counsel delay. I agree with the Crown that although the grounds of appeal cannot be discounted, the appeal is not so strong on its face as to tip the balance in favour of reviewability, given the competing interests. [5] First, there is the seriousness of the original convictions, for which Mr. Daye is no longer presumed innocent, and the pending firearms and breach charges. Moreover, there is an obvious link between drug crimes and firearms offences. The nature of the offences works strongly in favour of enforceability and public protection. [6] So, too, does the nature of the alleged breach of bail release. It is deeply troubling, not only that the alleged breach involves the commission of an extremely serious and disturbing offence, but the firearms and breach offences were alleged to have been committed in the presence of one of Mr. Daye’s sureties. This raises serious concern that if released, Mr. Daye may not respect the terms of his release and engage in further serious and dangerous criminal activity. [7] I appreciate that Mr. Daye’s release plan is meant to address this and that his mother and sister are appropriate sureties. Ultimately compliance depends upon Mr. Daye’s readiness to comply. I have sufficient concerns in this regard that I am not persuaded that Mr. Daye’s release pending appeal is appropriate. [8] I also recognize that a justice of the peace concluded otherwise in granting Mr. Daye release pending trial on his new charges, but I assess things differently. Given the facts of this case, if there is going to be a breach, there is reason to be concerned that the breach will be an extremely serious one. [9] The public interest in ensuring public safety and public confidence in the administration of justice require Mr. Daye’s continued detention pending appeal. “David M. Paciocco J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. G.B., 2021 ONCA 675 DATE: 20210928 DOCKET: C68235 Watt, Benotto and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and G.B. Appellant Mark Halfyard, for the appellant Gregory Furmaniuk, for the respondent Heard: September 24, 2021 by video conference On appeal from the convictions entered on August 2, 2019 by Justice Jocelyn Speyer of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of sexual assault, sexual interference, and invitation to sexual touching, all in relation to his granddaughter. The appellant was sentenced to four years’ imprisonment. He appeals his convictions. [2] The victim was 25 years old at the time of trial. She testified about what happened to her between 2000 and 2004, when she was 7 to 11 years old. [3] The victim’s parents were incapable of providing a stable environment for her and her siblings. Consequently, the children often stayed with the appellant and his wife. By all accounts, aside from the abuse, the victim and the appellant shared a good relationship when she was a child. Since then, the appellant has provided for her financially. [4] But there was another side to their relationship. The victim described a number of sexual incidents that occurred in the appellant’s home and in his car. The appellant licked the victim’s vagina, rubbed his penis outside her vagina, put his penis in her mouth, and penetrated her vagina. These incidents stopped when the victim started menstruating at age 11 or 12. [5] The victim said that she came forward with her allegations because: (a) she was aware of an incident where the appellant propositioned and then sexually assaulted her brother’s former girlfriend; and (b) she was concerned that the appellant might be abusing her younger sister. The victim went to the Children’s Aid Society, hoping it would result in her sister being removed from the appellant’s home. The matter was referred to the police. [6] The appellant testified and denied the allegations. He said that the victim was very upset with him a week before she made the allegations because he had refused to lend her money to purchase a new car. [7] In thorough reasons for judgment, the trial judge rejected the appellant’s evidence. She was satisfied beyond a reasonable doubt that the appellant sexually abused the victim in the manner that she described. [8] The appellant submits that the trial judge erred in how she addressed the question of whether the victim had a motive to fabricate the allegations, thereby requiring a new trial. We disagree. [9] The car loan motive was put in play by the appellant. The appellant and the victim agreed that the appellant told her that, if she could pay all of her own bills at her new accommodation, he would help her buy a new car the following year. Their evidence, however, diverged as to her reaction. The victim testified that the proposal made sense, was logical and that she was fine with it. The appellant said the victim was “pissed” and walked away from him. [10] The trial judge rejected the appellant’s evidence on this issue. She said: “While the defendant is under no obligation to explain why the complainant would fabricate the allegations, the manner in which he described the complainant’s reaction to his refusal of her request for a loan appeared to me to be an effort to manufacture a motive for the complainant to lie.” [11] The trial judge also rejected the appellant’s account of how he reacted upon hearing that the victim was pregnant when she was 18. She said it was their “biggest argument” and she moved out and went to live with her mother for a while. The appellant said he was happy to hear the news and was welcoming of the child. The trial judge rejected the appellant’s account concluding it was “an effort on his part to portray himself in a favourable light.” In combination with his evidence on the car loan, the trial judge rejected the appellant’s testimony denying the allegations. [12] The trial judge also addressed the issue of motive when considering the victim’s evidence: The complainant was an impressive witness. She presented as forthright, and careful not to guess about things she did not remember. She was clear and articulate. She frankly acknowledged when she could not remember or did not know the answer to a question. Apart from the allegations and a few other things, her evidence was substantially corroborated by the evidence of the defendant, which confirms that she can reliably describe her circumstances as a child. She presented in the same thoughtful and deliberate manner in cross-examination as she did in her evidence in-chief. She did not appear to hold any grudge against the defendant, and readily acknowledged all the good things he did for her. I find that it has been proven that she had no motive to lie. The evidence establishes that she knew that if she came forward her family, and in particular her children, would suffer as a result For the most part, she kept her emotions in check when she testified, but could not hide her sadness when she talked about her loss of her relationship with her grandmother, and the support she received from her grandparents when things get rough for her. She seemed more upset by that than by what her grandfather did to her, which makes sense, given her circumstances, and the fact that she maintained a good relationship with him as a teenager and young adult. [Emphasis added.] [13] The appellant submits that the trial judge erred in finding that there was a proven lack of motive, and by using this finding to bolster her credibility. Relatedly, the appellant submits that the trial judge erred in relying on the negative consequences to the victim as a result of making the allegations as an indication that she had no motive to fabricate. [14] We are not troubled by the manner in which the trial judge resolved the car loan issue. The appellant introduced this issue at trial. There was nothing inappropriate in doing so, but the trial judge, in turn, was required to address the issue. On her evaluation of the evidence, she found that it was not a viable motive. It was open to the trial judge to make this finding on the record before her. In doing so, she instructed herself that the appellant had no onus to prove a motive. Her finding is entitled to deference: R. v. Barton , 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 132. [15] It would have been sufficient had the trial judge left it at that. However, her finding is broader. As noted above, the trial judge said: “She did not appear to hold any grudge against the defendant, and readily acknowledged all the good things he did for her. I find that it has been proven that she had no motive to lie.” [16] In the former sentence, the trial judge did not find that the victim did not hold a grudge; she only held that it only appeared to look that way. This was a reasonable finding on the evidence. [17] The trial judge’s more categorical finding – “she had no motive to lie” – requires more scrutiny. If this was a reference to the car loan, for the reasons already given, it was unobjectionable. However, given that the trial judge went on to immediately comment on the consequences of the victim coming forward, “she had no motive to lie” assumes greater significance. [18] As this court has said in a number of recent decisions, trial judges must approach an apparent lack of motive to fabricate with great caution when assessing the credibility of a complainant: see R. v. S.S.S. , 2021 ONCA 552; R. v. Ignacio , 2021 ONCA 69, 400 C.C.C. (3d) 343; R. v. Bartholomew , 2019 ONCA 377, 375 C.C.C. (3d) 354. However, to the extent that the trial judge may have strayed into forbidden territory, we apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46. She was careful not to impose a burden on the appellant. Nor can it be said that this factor overwhelmed the trial judge’s assessment of the victim’s credibility. It did not infect the rest of her careful reasons in which she explained in great detail why she accepted the evidence of the victim and found the appellant guilty beyond a reasonable doubt. [19] The appeal is dismissed. “David Watt J.A.” “M.L. Benotto J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Li v. Li, 2021 ONCA 669 DATE: 20210929 DOCKET: C68703 Feldman, Paciocco and Coroza JJ.A. BETWEEN Xiang Li Applicant (Respondent) and Xiang-E Li Respondent (Appellant) Heng (Pandora) Du, for the appellant Michael J. Stangarone and Stephen P. Kirby, for the respondent Heard: March 12, 2021 by video conference On appeal from the order of Justice E. Llana Nakonechny of the Superior Court of Justice, dated September 15, 2020, with reasons reported at 2020 ONSC 5552. Coroza J.A.: I. overview [1] The appellant appeals from the dismissal of her motion (the “Motion”), in which she sought an order dismissing, on jurisdictional grounds, the respondent’s application for relief arising from the breakdown of their marriage (the “Application”). Before the motion judge, the appellant argued: i) that Ontario lacked jurisdiction to hear the Application and ii) in the alternative, that the city of Kunming, in the province of Yunnan, People’s Republic of China was the more appropriate forum for the dispute. The motion judge rejected both arguments, concluding that Ontario had jurisdiction and that the appellant had not met her burden of showing that China was the “clearly more appropriate” forum for the case. [2] For the reasons that follow, I would not interfere with the motion judge’s finding that Ontario has jurisdiction to hear the dispute. However, I conclude that the motion judge erred in reaching the conclusion that China was not the “clearly more appropriate” forum for resolving the respondent’s property and support claims. [3] At its core, this litigation relates to assets located in China and the respondent’s post-separation interest in them, if any. The respondent purportedly waived his interest in the assets by entering into three written agreements in China. These agreements have not been set aside. Since these documents were executed and witnessed in China, the Chinese courts are in a far better position to deal with their applicability. Respectfully, the motion judge ignored this very important factor in analyzing the doctrine of forum non conveniens . [1] Instead, the motion judge focused on the fact that the respondent was pursuing a trust claim interest in a single property in Ontario: a property worth a small fraction of the appellant’s overall assets. In my view, the failure to consider the parties’ domestic agreements as central to the forum non conveniens analysis was an error in principle justifying intervention by this court. II. background [4] In 2003, the appellant and the respondent met in China. In 2012, they married in the city of Kunming, Yunnan Province, China. [5] The appellant is a Chinese citizen. She previously held Canadian permanent resident status, until it expired in March 2019. This status was not renewed. The respondent is a Canadian citizen. [6] The appellant provided evidence during the Motion demonstrating that, between the date of marriage in 2012 and the date of divorce in 2018 (approximately 6 years), she was in Canada for a total of approximately 300 days (less than 10 months in total). She conceded during questioning that some visits to Toronto, Ontario in 2015 may not have appeared in the evidence filed by the parties. [7] Both parties were previously married and have children from those marriages. They do not have any children together. [8] The parties do not agree on their date of separation. The appellant claims that the parties separated in April 2016, after a physical altercation in their home. For his part, the respondent claims that the parties continued to reside together as a couple both in China and Toronto until at least March 2018. [9] In March 2018, the parties obtained a divorce certificate in China. As discussed in further detail below, the respondent disputes the validity of this divorce. (1) The Parties’ Assets and Debts [10] The respondent claims that he and the appellant contributed work and resources to a series of family companies that are located in China. He suggests that the appellant leveraged assets from certain family businesses to borrow funds to purchase real estate in her name alone. [11] The appellant states that she owned corporations and real property in China before and during the marriage. She denies that the respondent made any financial contributions to her assets. [12] The respondent claims that the parties shared two matrimonial homes located in Toronto. In 2012, just prior to the marriage, the appellant purchased a property at 220 Elmwood Avenue (the “Elmwood Property”), in her name alone. She claims that she purchased the Elmwood Property for her son to reside in while he attended school in Canada. In May 2016, the Elmwood Property was sold, and the proceeds were used to purchase property at 33 Bevdale Road, Toronto (the “Bevdale Property”), also in the appellant’s name alone. The respondent claims he found the Bevdale Property and worked with a real estate agent to arrange the purchase. He states that the parties were not separated at this time. [13] The appellant has a Royal Bank of Canada account in Toronto, in her name alone, which she used to pay the expenses for the Elmwood and Bevdale Properties. The respondent argues that he made contributions to this account that were used to pay for the mortgage, taxes, utilities, and other expenses for the Bevdale Property. (2) The Marital Assets Agreement, Letter of Commitment, and Repayment Agreement [14] On March 11, 2014, the parties signed a Marital Assets Agreement addressing five Chinese properties the appellant purchased in her name alone. This Agreement confirms that the respondent has no entitlements to the properties. [15] On May 12, 2015, the respondent also signed a Letter of Commitment clarifying that he lacked any interest in 41 specified investment properties. These properties are all located in China. [16] In 2019, after the divorce, the parties negotiated the terms of a repayment agreement for a 2,000,000 RMB [2] loan made to the appellant by the respondent, his mother, sister, and brother-in-law. The repayment amount is 6,000,000 RMB, which the appellant claims includes interest and an “equitable voluntary payment” by her to the respondent, representing his “monetary interest” in their relationship. The respondent argues that the repayment agreement is unrelated to any division of marital property. The Marital Assets Agreement, Letter of Commitment, and loan repayment agreement were all executed and witnessed in China, in the Chinese language and in Chinese currency. (3) The Divorce Agreement and the Supplementary Agreement [17] On March 26, 2018, the parties applied for a divorce in Kunming. They attended together at the Kunming City Ministry of Civil Affairs Marriage Registry and brought a handwritten document stating their intention to divorce as well as their agreement that i) there will be no disputes in relation to the children and ii) all issues related to property, debts, and liabilities had been resolved through private negotiation. [18] The registrar required a typed document, so the respondent typed a document with the same terms as the handwritten document (the “Divorce Agreement”). Both parties signed the document, added their fingerprints, and obtained a divorce certificate. [19] The appellant claims this divorce certificate is valid and reflects the parties’ agreement. The respondent states that the appellant misled him, assuring him that this was not a real divorce. [20] The appellant states that on March 26, 2018, the parties signed a Supplementary Agreement to the Divorce Agreement. In this document, the respondent waived his rights to any of the appellant’s assets. It states that all property in either party’s name belongs to the appellant, except for a car and a debt owing by the respondent, which he would retain. [21] The appellant argues that the Supplementary Agreement reflects the parties’ negotiations and the fact that the respondent made no contributions to her corporations or real estate. [22] The respondent asserts that he does not recall executing the Supplementary Agreement. He claims he was unaware of the Supplementary Agreement’s existence until December 2019. He admits that the signature on the document resembles his but claims the appellant would ask him to sign blank documents in case his signature was needed while he was absent. The respondent contests the validity of the divorce obtained in China as well as the Supplementary Agreement. III. procedural history (1) The Application [23] In February 2020, the respondent commenced an Application for various relief, including: i) a declaration that the Chinese divorce not be recognized or enforced in Ontario; ii) a declaration setting aside the Supplementary Agreement; and iii) a declaration that Ontario has jurisdiction to determine the outstanding property and support issues between the parties. The outstanding property and support issues included claims for equalization, spousal support, and the respondent’s claim of a resulting and/or constructive trust over the Bevdale Property, based on the allegation that the appellant was unjustly enriched by his contributions to the Bevdale Property. [24] The appellant refused to attorn to the jurisdiction of the court. Instead, she brought a motion for an order: i) dismissing the respondent’s Application and ii) declaring that the city of Kunming, in Yunnan Province, China, is the more appropriate forum to determine any outstanding issues between the parties arising from the breakdown of their marriage. (2) The motion judge’s reasons [25] In her reasons, the motion judge framed the issues on the Motion as: i) whether an Ontario court had jurisdiction to determine the respondent’s property and spousal support claims and ii) if the court had jurisdiction, whether Ontario was the appropriate forum to determine the issues. (a) The motion judge finds Ontario has jurisdiction [26] The motion judge noted that she was not asked to determine the validity of the Chinese divorce. She acknowledged that there is a presumption in favour of recognizing the validity of foreign divorces, and that it is rare for a Canadian court to refuse to recognize a divorce properly obtained under the laws of another jurisdiction. While the divorce’s validity would impact the respondent’s spousal support claim, it would not impact the equalization and trust claims made under s. 15 of the Family Law Act , R.S.O. 1990, c. F.3 (“ FLA ”), which the motion judge considered next. In considering these claims, the motion judge recognized that, absent a statutory rule, an Ontario court may take jurisdiction simpliciter over the case if there is a real and substantial connection between the forum and the subject matter or the parties to the dispute: Club Resorts Ltd. v. Van Breda , 2012 SCC 17, [2012] 1 S.C.R. 572. [27] The motion judge concluded that Ontario had jurisdiction to hear the respondent’s equalization and property division claims. In her view, the following factors provided Ontario with a real and substantial connection to the dispute: · The respondent is a Canadian citizen who primarily resided in Canada during the marriage and since separation (on either separation date put forward by the parties); · The respondent claims a beneficial interest in an Ontario property. The parties and their children resided in the Elmwood and Bevdale Properties as their family homes during the marriage; · The appellant regularly visited Ontario each year and obtained permanent resident status. In her application for this status, she expressed a desire to make Canada her home; · There may be unfairness to the respondent if Ontario does not assume jurisdiction. Expert evidence, adduced by the respondent yet untested by cross-examination, suggested that the respondent is out of time to make his claim for property division in China; and · Although there are relevant documents and witnesses in both China and Ontario, the documents relevant to the trust claim would primarily be in Ontario, as would some evidence relevant to determining the date of separation. (b) The motion judge finds Ontario is the more appropriate forum [28] The motion judge then went on to address the appellant’s argument that if the court found that Ontario had jurisdiction, it should nevertheless decline to exercise jurisdiction on grounds of forum non conveniens because China was clearly the more appropriate forum. The motion judge disagreed and referenced the following considerations: · All the witnesses and evidence relating to the respondent’s trust claim would be in Ontario, except for the appellant’s evidence; · The “natural forum” for a claim to an interest in an Ontario property is Ontario; · The appellant would be able to present her case in Ontario without significant difficulty. While Chinese documents and currency values would need to be translated and converted for purposes of a claim in Ontario, the parties were able to do this for purposes of the Motion and the proceeding unfolded without disruption; · If the respondent is successful in asking an Ontario court not to recognize or enforce the Chinese divorce, he could then proceed with his spousal support claim. Certain relevant documents and witnesses would be in Ontario as the respondent spent more time here than in China; and · If the court declined jurisdiction, the respondent may be out of time to pursue a claim for division of marital property in China, as demonstrated by the conflicting expert evidence. This would represent the loss of a legitimate juridical advantage. [29] Accordingly, the motion judge dismissed the Motion, permitting the respondent to proceed with his claims in Ontario. IV. GROUNDS OF APPEAL [30] The appellant raises the following issues on appeal in her factum: 1. Is there a real and substantial connection between the parties, the matrimonial claims being litigated, and Ontario? 2. Is Yunnan Province, China the more appropriate forum to determine the claims raised in the respondent’s Application? 3. Should this court strike out all or part of the respondent’s Application, leaving only the trust claims concerning the Bevdale Property to proceed in Ontario ? V. THE LEGAL FRAMEWORK [31] Both parties agree that in the absence of a statutory rule, the common law conflicts rule of Canadian private international law — the “real and substantial connection” test — determines whether jurisdiction exists in Ontario's courts. It is not disputed that the motion judge properly referenced Van Breda and identified that a real and substantial connection must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum. The parties also agree that the motion judge properly recognized that, even when an Ontario court assumes jurisdiction, if the defendant (or respondent in the Application) establishes that another forum is clearly more appropriate for disposing of the litigation, then the court can decline to exercise jurisdiction on the grounds of forum non conveniens : see Van Breda , at para. 108. VI. DISCUSSION (1) Is there a real and substantial connection between the parties, the matrimonial claims being litigated, and Ontario? [32] The appellant argues that the motion judge erred in ignoring or misapprehending the facts in concluding that there was a real and substantial connection between this matter and Ontario. [33] In her factum, the appellant contends that the material before the motion judge suggests that the respondent worked in China and that his affidavit did not establish that he lived in Canada. She, on the other hand, does not live in or carry on business in Ontario; the appellant’s business is “based entirely in China”, and the respondent’s employment and business activities during the “material times” were entirely in China. Furthermore, the appellant argues that her only connection to Ontario is a single encumbered piece of real property (the Bevdale Property) and a bank account; by contrast, the appellant owns many assets and owes significant debts in China. [34] Absent palpable and overriding error or an extricable error of law warranting correctness review, deference ought to be afforded to the motion judge. In my view, the appellant has not identified any extricable errors of law or palpable and overriding error in the motion judge’s analysis on the question of whether Ontario has jurisdiction. [35] The motion judge found that the respondent was a Canadian citizen and that he resided primarily in Canada during the marriage and post separation. I do not accept the appellant’s submission that the motion judge misapprehended the evidence on this point and that there was not a “shred” of evidence that the respondent lived primarily in Canada. The respondent presented proof of Canadian citizenship and the respondent’s passport and driver’s licence all indicated that he lived at the Elmwood and Bevdale Properties. Furthermore, there was evidence before the motion judge that he made payments towards the carrying costs of maintaining the properties in Ontario. In my view, the motion judge did not err in finding that the respondent resided primarily in Canada. [36] In Wang v. Lin , 2013 ONCA 33, 358 D.L.R. (4th) 452, this court accepted that in the context of marriage breakdown the presumptive connecting factors are necessarily different from those identified in Van Breda , which was a tort case. This court noted that the list of presumptive connecting factors is not closed and the location of the “real home” or “ordinary residence” should be a presumptive connecting factor: Wang , at paras. 46-47; see also Knowles v. Lindstrom , 2014 ONCA 116, 118 O.R. (3d) 763, at para. 27, leave to appeal refused, [2014] S.C.C.A. No. 161. Therefore, the respondent’s ordinary place of residence was a significant factor to consider in determining jurisdiction. [37] Furthermore, the motion judge noted that part of the respondent’s claim is an assertion that he has an equitable interest in the Bevdale Property. The location of that property is in Ontario. This court has held that the location of a property is also a presumptive connecting factor sufficient to establish jurisdiction simpliciter : Knowles , at paras. 21, 24. [38] As this court explained in Knowles , a single presumptive connecting factor, in the absence of any rebuttal of that presumption by the appellant, is sufficient to establish jurisdiction under the Van Breda analysis: Knowles , at para. 24. In this case, the motion judge identified that the appellant was a Canadian citizen, ordinarily resident in Canada, and that he was advancing a claim on property located in Ontario. [39] I would defer to the motion judge’s conclusion that there was a sufficient connection to Ontario to establish jurisdiction simpliciter . (2) Is Yunnan Province, China the more appropriate forum to determine the claims raised in the respondent’s Application? [40] After finding that the Ontario court had jurisdiction, the motion judge then considered the appellant’s argument that she should decline to exercise that jurisdiction under the forum non conveniens doctrine because China was “clearly more appropriate” for determining the issues in the case. The burden was on the appellant to show why jurisdiction should not be exercised: Van Breda , at para. 103. [41] The motion judge’s conclusion on the forum non conveniens issue is properly viewed as an exercise in judicial discretion and this court will defer to that assessment, absent an error in principle, a material misapprehension of the evidence, or if, in the circumstances, the exercise of that discretion is unreasonable: Knowles , at para. 40. [42] In essence, the doctrine focuses on the circumstances of the case, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient: Van Breda , at para. 105. The factors that come into play in considering the question of forum non conveniens depend on the context and may include the locations of parties and witnesses, the cost of transferring the case to another place, the impact of a transfer on the case or a related case, the possibility of conflicting judgments, problems relating to recognition or enforcement of judgments, and the relative strengths of the connections of the parties: Van Breda , at para. 110. [43] Loss of juridical advantage to one or the other of the parties is also a relevant consideration: Knowles , at para. 43. Even then, however, comity and an attitude of respect for the courts and legal systems of other countries may be in order: Van Breda , at para. 112. A court must not lean too instinctively in favour of its own jurisdiction: Van Breda , at para. 112. [44] In my view, the motion judge erred in principle in her analysis on the issue of forum non conveniens . I find this for several reasons. [45] First, the motion judge ignored a very important factor – the existence of three signed agreements waiving the respondent’s entitlement to the assets and properties in China. The Divorce Agreement, dated March 26, 2018 (translated), says, “the [appellant and respondent] acknowledged that issues pertaining to assets, financial claims and debts have been resolved on their own through negotiations.” The appellant claims that several key agreements have come out of the parties’ private negotiations, including: · The Supplementary Agreement to the Divorce Agreement, dated March 26, 2018, which states that the respondent will “move out and waive rights to any property or assets” (English translation). It further stipulates that “[a]ll corporation or company’s share’s [sic] and personal assets” under either the respondent or appellant’s name belong to the appellant, including the real estate property in Canada purchased by the appellant before the marriage (English translation). · The Marital Assets Agreement, dated March 11, 2014, which states that the five properties in China being purchased are in the appellant’s name and the parties agree that she alone owns them and the respondent has no interest in them. · The Letter of Commitment, dated May 12, 2015, which states that the respondent makes the “sincere promise to forego ownership in 41 properties” he co-owned with the appellant (English translation). [46] As this court stated recently in Krebs v. Cote , 2021 ONCA 467, 459 D.L.R. (4th) 730, at para. 19, “[p]arties should be encouraged to enter agreements to define their rights and obligations. Jurisprudential shoals upon which an agreement may founder unnecessarily do not advance that goal.” [47] To this end, under Ontario law, there is a high bar to set aside a domestic contract that complies with the enforceability requirements of s. 55(1) of the FLA : namely, that it is made in writing, signed by the parties and witnessed. [48] In this case, to proceed with his claims for equalization or an interest in the properties covered by the agreements, the respondent would first have to seek to set those agreements aside. The respondent would also have to address the appellant’s position that there was a loan repayment agreement executed in 2019 that settled some of the matrimonial claims. In Ontario, of course, a claim for equalization or support under the FLA would engage the factors set out at s. 56(4) of the Act for setting aside a domestic agreement. [49] Section 56(4) of the FLA provides that, A court may, on application, set aside a domestic contract or a provision in it, (a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; (b) if a party did not understand the nature or consequences of the domestic contract; or (c) otherwise in accordance with the law of contract. [50] There was also evidence before the motion judge that similar provisions exist in China to set aside unfair contracts. The opinion letter tendered by the appellant on the Motion states that, according to Article 54 of the Contract Law of People’s Republic of China, a valid contract can be set aside where there is a significant misunderstanding, or when one party uses fraudulent or coercive means or takes advantage of the other party while they are in a vulnerable state, not unlike Ontario. [51] In this way, the preliminary question of whether the agreements could be set aside, was in my view central to assessing the more appropriate forum. Respectfully, the motion judge erred in considering the respondent’s claims in the Bevdale Property – and his potential entitlements to share in some way (whether by way of equalization or a direct property interest) in the appellant’s Chinese properties – without considering the question of setting aside the divorce and/or the agreements about property. With the agreements as the proper focus, and given that the agreements were all executed and witnessed in China, in the Chinese language, it becomes clear that China is the most appropriate forum for the dispute. [52] Second, the motion judge’s reasons state that the natural forum for the claim to the Bevdale Property is here in Ontario. As set out above, the location of the property is a factor that carries considerable weight on the jurisdiction inquiry. However, the motion judge’s focus on the Bevdale Property overwhelmed her analysis of forum non conveniens . In this case, the far more valuable property interests are in China and are governed by contracts in China; there are multiple agreements between the parties that are, as mentioned, written in the Chinese language and in Chinese currency. These agreements concern multi-million-dollar business interests and properties there. In contrast, the Bevdale Property is worth considerably less. The Bevdale Property should not have been the focal point of the analysis and it certainly was not the natural forum for the division of property claim viewed as a whole. [53] Third, the motion judge held that the respondent was not claiming any property interest in properties or corporations located in China, only in the monetary payment that would occur after the equalization calculation based on properties or corporations in China. However, this factor assumes that an equalization payment would be the only remedy under Chinese law. There was no evidence that equalization rather than distribution of properties would be the remedy in China and the motion judge engaged in speculation that this would be the case. [54] Finally, the motion judge erred in her analysis in terms of the respondent’s loss of a legitimate juridical advantage. The motion judge identified the juridical advantage as the respondent’s ability to pursue his claim for property division in Ontario because he may be out of time in China. On the Motion, the respondent produced an opinion from a lawyer stating that, in China, where a man and woman are divorced by joint divorce and the parties have a change of mind over the issue of property division, they have one year from the date of the divorce to request to modify or revoke the property division agreement. The respondent’s legal opinion concludes that, based on this rule, litigation concerning division of property by joint divorce needs to be filed within one year. [55] For her part, the appellant disagreed that the respondent was out of time in China. She also produced an expert opinion that stated that the respondent could seek redress in a Chinese court to amend or void the Supplementary Agreement if he could demonstrate that he was under a serious misunderstanding, or there was an appearance of unfairness, or that he was defrauded, coerced or taken advantage of while in a vulnerable state that caused him to erroneously express his intention. Faced with this conflicting evidence, the motion judge nevertheless held that if Ontario declined jurisdiction, the respondent could lose a legitimate juridical advantage because he was out of time in China. [56] I acknowledge that there is some support for the respondent’s position that an expired limitation period in the other jurisdiction would make Ontario the more juridically advantageous forum for him as plaintiff, and that a juridical advantage to a plaintiff in Ontario weighs against staying the proceedings: see Garcia v. Tahoe Resources Inc. , 2017 BCCA 39, 407 D.L.R. (4th) 651, at para. 91, leave to appeal refused, [2017] S.C.C.A. No. 94. [57] However, some courts have ruled that the plaintiff’s failure to bring a claim within the time limit “militates against attaching any weight to the juridical advantage factor because, in some circumstances, a plaintiff could successfully oppose a defendant’s forum non conveniens application in one jurisdiction by simply allowing the limitation period to expire in the other jurisdiction”: Tahoe , at para. 91. It seems, then, that “the weight attached to the juridical advantage factor when considering the expiration of a limitation period in another jurisdiction is a case-specific inquiry that turns on the facts”: Tahoe , at para. 92. [58] In this case, the motion judge held that the limitation period weighed in the respondent’s favour. There was no case-specific inquiry in reaching that conclusion. As noted, this case involves the potential expiry of a limitation period; the respondent’s evidence on this point does not lead to this conclusion with any certainty. The motion judge did not resolve an inconsistency between the facts of the case and the facts relied upon by the respondent’s expert opinion. The opinion regarding the one-year time limit concerned parties who “change their mind” over property division. The respondent’s evidence, however, was that he was misled in terms of the Divorce Agreement and was not aware of the existence of a Supplementary Agreement. He did not argue that he had changed his mind about the agreements. On that evidence, it becomes less clear that the respondent is, in fact, out of time in China. [59] Furthermore, the respondent testified during questioning that he has never thought of going to court in China to deal with property division. This fact does not help the respondent claim the juridical advantage of an Ontario action: see Hurst v. Société Nationale de L'Amiante , 2008 ONCA 573, 93 O.R. (3d) 338, at paras. 51-52. [60] In summary, the motion judge erred in principle in her analysis under forum non conveniens . In my view, the appellant has demonstrated that the balance tips heavily in favour of China as the “clearly more appropriate” forum for resolving the parties’ property issues and the motion judge should have declined to exercise jurisdiction. Accordingly, I would allow this ground of appeal. (3) Should this court strike out all or part of the respondent’s Application, leaving only the trust claims concerning the Bevdale Property to proceed in Ontario? [61] The appellant also argued that this court should consider severing the respondent’s trust claim over the Bevdale Property, allowing it to proceed in Ontario while striking the remainder of the claims. [62] As I have already decided that China is the more appropriate forum to hear the claims arising from the parties’ marital breakdown, this issue is now moot. [63] However, I do make the following observations. Severing the specific claims in relation to the Bevdale Property appears to be contrary to some of the factors identified by the Supreme Court of Canada as relevant to the forum non conveniens analysis in Van Breda , at paras. 105, 110, including a desire to avoid a multiplicity of legal proceedings and avoiding conflicting decisions in different courts. [64] Severance of the trust claim is also potentially problematic because this court has made clear that claims of unjust enrichment are rarely appropriate to address financial issues after the breakdown of a marriage and a court would, in all likelihood, find that equalization of all net family properties under the legislation would provide a full remedy to any unfairness that would otherwise arise from different contributions to family assets: McNamee v. McNamee , 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66; Martin v. Sansome , 2014 ONCA 14, 118 O.R. (3d) 522, at para. 64. VII. CONCLUSION [65] For these reasons, I would allow the appeal and stay the respondent’s Application. [66] I would award the appellant her costs of the appeal in the agreed amount of $13,000 inclusive of disbursements and applicable taxes. Released: September 29, 2021 “K.F.” “S. Coroza J.A.” “I agree. K. Feldman J.A.” “I agree. David M. Paciocco J.A.” [1] I note that in a recent Superior Court decision, Kore Meals LLC v. Freshii Development LLC , 2021 ONSC 2896, 156 O.R. (3d) 311, E.M. Morgan J. observed that the world of videoconference hearings may have implications for the relevance of forum non conveniens . I leave that issue for another day. In the present case, where the competing forums involve different languages and different time zones, the choice of forum remains relevant. [2] The evidence before the motion judge was that CAD$1 equals approximately 5.07 RMB.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Collingwood Prime Realty Holdings Corp. 2021 ONCA 665 DATE: 20210929 DOCKET: C69445 Watt, Benotto and Trotter JJ.A. BETWEEN Her Majesty the Queen Appellant and Collingwood Prime Realty Holdings Corp. & Issa El-Hinn Respondent Rick Visca, Holly Akin and Erryl Taggart, for the appellant Melanie Webb , for the respondent Heard: September 21, 2021 by video conference On appeal from the judgment of Justice David E. Harris of the Superior Court of Justice, dated May 12, 2020 with reasons reported at 2020 ONSC 2953, allowing the appeal from the sentences imposed on August 21, 2018 and September 12, 2018 by His Worship Justice of the Peace Mangesh S. Duggal. REASONS FOR DECISION [1] The Crown appeals the decision of the summary conviction appeal judge which reduced the sentence imposed at first instance on a conviction under the Canadian Environmental Protection Act . [2] A brief overview of the facts is necessary. Facts [3] The respondent Collingwood Property Holdings Corp (“the corporation”) was the owner of property in Collingwood. The respondent Issa El-Hinn (“El-Hinn”) was the sole director and operating mind of the corporation. The respondents were given a written warning by Environmental and Climate Change Canada (“ECCC”) to remove transformers containing hazardous toxins. Ten months later the transformers were still there. The ECCC officers issued a Notice of Intent to issue an Environmental Compliance Order (“NOI”), to which the corporation did not respond. The ECCC officers then issued an Environmental Protection Compliance Order (“EPCO”) pursuant to s. 235(1) of the Canadian Environmental Protection Act (“ CEPA ”), requiring the removal of the equipment and an electronic report. The equipment was not removed nor was the report filed by their respective deadlines. Over a year later, the ECCC officers executed a search warrant on the property and found one of the transformers was still in use. The equipment was eventually removed, four years after the initial inspection. El-Hinn and the corporation were jointly charged in an 11-count information and plead guilty. The sentence [4] The sentencing judge imposed separate fines amounting to $220,000 and a custodial term of 45 intermittent days on El-Hinn pursuant to s. 275(2)(b)(i) of CEPA . He also fined the corporation $40,000 for count 1, $10,000 for count 2, $1,250 each for counts 3-10 amounting to $10,000 for those counts, and $140,000 for count 11 ($200,000 in total). [5] The sentencing judge considered mitigating and aggravating factors. Mitigating factors were that the El-Hinn was a first offender, the transformers were eventually removed, El-Hinn was of otherwise good character, and the guilty pleas merited some leniency. Aggravating factors included the quantity and hazardous nature of the toxins, the large passage of time in regulatory compliance despite having financial capacity and having been issued an order to comply, cost avoidance, and great potential harm of the toxins. The sentencing judge noted the purposes of sentencing under the CEPA are to preserve the environment, to deter violations of the Act , to denounce damage or risk of damage to the environment and human health, and to reinforce the “polluter pays” principle for environmental restoration. The lack of actual injury was not found to be a mitigating factor, as under CEPA potential for harm is the relevant factor to consider in sentencing. The sentencing justice relied on R. v. Sinclair (2009), 45 C.E.L.R. (3d) 222 (Ont. C.J.) finding that though in Sinclair actual harm to the environment was deliberately inflicted, El-Hinn’s moral culpability is similar despite no actual environmental damage. This is due to El-Hinn’s sustained non-compliance with warnings and orders. Summary Conviction Appeal Court [6] The appellate judge allowed El-Hinn and the corporation’s appeal against both the fines and term of incarceration. He eliminated the term of incarceration and reduced the fines. He did so on the basis that there was an error in principle by the sentencing judge in finding parity with Sinclair . The appellate judge found that the moral responsibility of each Sinclair and El-Hinn were not similar. The sentencing judge’s finding was therefore found to amount to an error in principle, and deference was lost. The appellate judge reasoned that Sinclair had a much more blameworthy state of mind than did El-Hinn, as Sinclair was knowingly and intentionally polluting the environment. The harm in Sinclair was not caused by delay or negligence, but rather was caused by deliberate and calculated acts of pollution. El-Hinn and the company had a lower degree of culpability, as they were passively negligent. Further, unlike Sinclair, El-Hinn and the company also were not attempting to profit at the expense of the environment, which demonstrates a lower degree of moral culpability. Finally, the appellate judge found that Sinclair also should have been distinguished because there was actual harm to the environment, whereas in the case at hand there was not. [7] The appellate judge found that a jail sentence should only be imposed if it is necessary to achieve sentencing principles (s. 287.1(1) of CEPA incorporates the restraint principle under s. 718.2 of the Criminal Code) . [1] The appellate judge determined that while the proper test is the potential harm to the environment, s. 718.2(a)(iii.1) of the Criminal Code requires a court to take into account harm to the victim in sentencing. Actual harm to the environment is not present in this case. The appellate judge found that these factors, plus the COVID-19 crisis weakening the public interest in jail sentence, militates against custody for El-Hinn. He found that fines are enough to fulfil sentencing objectives, especially as El-Hinn’s culpability was lower than that determined by the sentencing judge. [8] The appellate judge reduced the fines to $150,000 for the corporation and $170,000 for El-Hinn. In doing so, he determined that counts 1 through 10 should be dealt with as the same charge. Crown appeal [9] The Crown appeals arguing that the original sentence should be restored as there was no error in principle. Analysis [10] We allow the appeal in part. [11] We agree with the appellate judge that there was an error in principle in comparing the case to Sinclair where there were deliberate actions to harm the environment which are not analogous to the situation here. Having found otherwise, the sentencing judge erred in principle and the appellate judge did not owe the decision deference. We agree that the incarceration of El-Hinn is not proportional and should be eliminated. [12] We do not agree with the appellate judge’s reduction of the fines. It was not an error for the sentencing judge to impose separate fines for each count. Concurrent sentences apply only to incarceration. In this regard we restore the sentencing judge’s determination. [13] The appeal is allowed with respect to the fines but dismissed with respect to the incarceration. “David Watt J.A.” “M.L. Benotto J.A.” “Gary Trotter J.A.” [1] See also: Ontario (Labour) v. New Mex Canada Inc. 2019 ONCA 30, 144 O.R. (3d) 673 released after the sentencing decision at first instance.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Manickam, 2021 ONCA 668 DATE: 20210929 DOCKET: C66892 Tulloch, Nordheimer and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Kumaraguruparan Manickam Appellant Richard Litkowski, for the appellant Jeremy D. Tatum, for the respondent Heard: April 7, 2021 by video conference On appeal from the conviction entered on October 15, 2018, by Justice Susan C. MacLean of the Ontario Court of Justice, and from the sentence imposed on April 29, 2019. Tulloch J.A.: A. Overview [1] The appellant was charged with and convicted of two counts of fraud over $5,000 and one count of uttering forged document. He was sentenced to 18 months in jail, 3 years’ probation, and a standalone restitution order. [2] The appellant appeals his conviction and, in the alternative, appeals his sentence. B. factual background [3] The appellant was a small business owner. He owned, at various times, a gift store, a restaurant, a convenience store, a video store, and a grocery store. [4] He financed his restaurant business with private loans at a very high interest rate. By May 2013, he was still indebted to his private lenders and had accumulated substantial credit card debt. He was hoping to obtain loans from banks with lower interest rates. [5] The appellant testified that he met a man named Arul in January 2013. Arul introduced the appellant to a man named Ramesh. The appellant and Ramesh agreed to an arrangement where Ramesh would assist the appellant in obtaining a loan from a bank. Ramesh would get a 15 percent commission on any loan he obtained. [6] The appellant did not know Arul’s or Ramesh’s last name. [7] Ramesh told the appellant that, in order to obtain a loan, he had to build up a transaction history to show the banks that he had an active business. He instructed the appellant to deposit cheques from companies, withdraw cash after the cheques were deposited, and then redeposit some of the money back into the account to create a transaction history. [8] The fraudulent scheme began with mainly two business accounts at Toronto Dominion Bank (“TD”): the “Gurushoth Inc.” account, which was used for his legitimate business, and the “Twin Bird” account, which was opened by the appellant in May 2013 to trick the bank. The appellant admitted that he knew Twin Bird was not a real business when the account was opened. [9] Between June 12 and June 18, 2013, the appellant deposited cheques from Ambigai Janitorial Services (a fake business) to his TD bank accounts. All the cheques were fraudulent. Most were cheques deposited in the two TD business accounts, but some were deposited to his personal account and to pay the balance on his credit cards. His TD accounts were blocked on June 17, 2013 and frozen after June 20, 2013. [10] In April 2013, the appellant opened two Royal Bank of Canada (“RBC”) business accounts for Twin Bird and two personal accounts. The appellant repeated the TD scheme with his RBC business accounts. Between September 19, 2013 and September 23, 2013, the appellant deposited 18 cheques in his RBC business accounts, all of which were fraudulent. [11] The appellant also made tens of thousands of dollars worth of purchases at Costco using his TD and RBC accounts and made thousands of dollars of withdrawals at a racetrack and casino. [12] As a result of this scheme, there was a combined loss to both banks of over $250,000. C. Reasons for Conviction [13] The main issue at trial was whether the appellant had the mens rea for the offences. He did not dispute that he opened fake business accounts and deposited counterfeit cheques. The core of his defence was that he trusted Ramesh and had no questions about the scheme until he was contacted by the police. He was the dupe of an unscrupulous fraudster who took advantage of him. He did what he was told to do by Ramesh and did not suspect that anything was amiss. [14] The Crown argued that this defence was not credible. The appellant’s involvement went beyond simply depositing cheques and included activity that would seem suspicious to anyone. It defied belief that the appellant did not appreciate the suspicious nature of the scheme. Instead, he feigned ignorance in an attempt to evade criminal liability. At a minimum, even if the appellant’s evidence is accepted, he was wilfully blind. [15] The trial judge did not believe the appellant, nor was she left with a reasonable doubt by his evidence. She found that the actus reus for fraud was met: the opening of the Twin Bird accounts was a dishonest act and the depositing of cheques for an illegitimate business created a risk of deprivation for the banks which materialized. [16] The trial judge also found that the appellant was, at the very least, wilfully blind to the fraud. There were numerous instances during the months-long scheme that raised the appellant’s suspicion. These instances included: 1.) He was given several large cheques. His evidence was that he never questioned where the money came from and assumed it was legitimate, even though they came from a man whose last name and address he did not know; 2.) He drove to several branches around Oshawa and Scarborough to deposit cheques in the same day; 3.) He was using some of the money from Ramesh to pay off his credit card debt; 4.) He bought lottery tickets at the casino, purportedly to show the bank that his businesses were legitimate; 5.) His TD Bank accounts were blocked and later frozen, including an account associated with his legitimate business. He immediately stopped using the accounts; and 6.) He continued the same behaviour with his RBC accounts, even though his TD accounts were already frozen. D. Analysis [17] The appellant appeals his conviction on the following grounds: 1.) The trial judge erred in her analysis of wilful blindness, and did not provide any legal analysis of the appellant’s liability as a party under s. 21(1)(b) or (c) of the Criminal Code ; 2.) The trial judge erred in her approach to assessing the appellant’s credibility and reliability; and 3.) The trial judge erred by failing to explain how she used the similar fact evidence in her analysis. [18] The appellant also seeks leave to appeal his sentence, on the basis that the sentencing judge erred by failing to apply the principle of restraint, thereby imposing a sentence that was harsh and excessive in the circumstances. (1) The Trial Judge’s Analysis of Wilful Blindness [19] The appellant submits that the trial judge erred in finding that the appellant was, at the very least, wilfully blind to the fraudulent scheme and argues that the evidence only supported a finding of recklessness. He states that his evidence was clear that he had no idea anything illegal was happening and that, when he first learned of it, he cut ties with Ramesh. [20] In addition, he submits that the trial judge found him to be a party to the offence under s. 21 of the Criminal Code , even though she never conducted an analysis under s. 21. Recklessness, he argues, cannot ground party liability. [21] Wilful blindness is a substitute for knowledge where knowledge is a component of the mens rea : R. v. Briscoe , 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21. Wilful blindness “imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”: Briscoe , at para. 21 (emphasis in original). It is a state of deliberate ignorance. [22] In my view, there is no basis to interfere with the trial judge’s finding that the appellant was wilfully blind. His testimony that he had no suspicions about the legality of Ramesh’s scheme was wholly rejected by the trial judge. This finding was well supported by the record. [23] For example, the appellant was asked whether he thought it unusual that he deposited cheques at multiple banks on the same day: Appellant: [Ramesh] told me that’s the way to do it and it is good. That is why I followed him. Q: I’m sure he told you that, but didn’t you think that was a little bit unusual? A: I thought it’s a bit unusual , but when he told me this is the way you do it, then I followed him. Q: So, you didn’t ask any more questions? A: No. [Emphasis added.] [24] Additionally, in June 2013, the appellant’s TD bank accounts were blocked. When he asked Ramesh about it, he was told that it did not matter. The appellant stopped using his accounts but did not call the bank because he “thought Ramesh was handling that”. The trial judge concluded that he remained in a state of deliberate ignorance by not making inquiries after his TD bank accounts were blocked. [25] These are just a few examples of instances where the trial judge concluded that the appellant’s suspicions were raised. She found that the appellant “had a handy excuse in the form of Ramesh…whose whereabouts and identity is a complete mystery to all,” that he “insulated himself with a wall of ‘deliberate ignorance’”, and that he “had a ‘readymade mantra for court’”. [26] The trial judge ultimately concluded that the appellant was wilfully blind: I agree with the Crown’s submissions that the very fact that Ramesh was giving Mr. Manickam reassurances, about the different aspects of the scheme, shows his suspicions were, in fact, raised and in between the TD scheme and the RBC scheme, Mr. Manickam had two months to make inquiries about the TD account and even though he was unable to pay his loans or pay his bills, and was not receiving any more statements from the bank, he did nothing to make any inquiries. [27] There is no palpable and overriding error in the trial judge’s factual findings that 1) the appellant had suspicions about the scheme, and 2) he did not make any inquiries beyond Ramesh. These findings, which were made after an extensive review of the evidence, support the conclusion that the appellant was wilfully blind. [28] Although the trial judge referred to the appellant as being a “party” to the fraud, she also concluded that all of the elements of fraud had been met respecting the appellant. While her language was confusing, I think it is clear from her reasons as a whole that she ultimately concluded that he actually committed the offences and not that he aided or abetted someone in committing the offences. I would also note that s. 21(1)(a) of the Code defines “party” as including a person who actually commits the offence. (2) The Trial Judge’s Assessment of Credibility and Reliability [29] The appellant argues that the trial judge rejected the appellant’s testimony because it did not match what she would have done in the circumstances. He argues that she did this because she commented, in multiple instances, that no reasonable person would have done what the appellant had done. For example, she stated that a reasonable person would contact their bank once they learned that their accounts had been blocked. [30] There is no basis to interfere with the trial judge’s assessment of the appellant’s credibility. Her ultimate conclusion was that the appellant’s testimony was not believable and that she was not left in reasonable doubt by it: R. v. W.(D.) , [1991] 1 S.C.R. 742. This finding was supported by numerous references to the appellant’s testimony and the record as a whole. Her conclusion that a reasonable person would have had suspicions was only one factor in concluding that he was not credible on this issue. [31] The trial judge’s use of the term “reasonable person” at multiple points in her reasons when evaluating the appellant’s credibility was unfortunate. The language of “reasonable person” should be avoided when determining whether someone was wilfully blind, as it suggests an objective fault standard. Wilful blindness and criminal negligence are distinct concepts: Briscoe , at para. 24. [32] Read fairly, however, the trial judge’s reasons show that she did not err. She simply did not find the appellant’s denials credible. The appellant had numerous good reasons to be suspicious, and it was simply not plausible that he did not have any suspicions at all. In referencing what a reasonable person would have thought, she was, in effect, concluding that his testimony was not “in harmony with the way things can and do happen” and was highly implausible: see e.g., R. v. Kiss , 2018 ONCA 184, at paras. 28-34; Faryna v. Chorny , [1952] 2 D.L.R. 354 (B.C.C.A.). (3) The Trial Judge’s Use of Similar Fact Evidence [33] Mid-trial, the Crown made a similar fact application in relation to the TD and RBC allegations, to permit the facts to be used across counts. The Crown submitted that the similar fact evidence was probative in four ways: 1.) The totality of the conduct demonstrates fraudulent intent; 2.) The use of the business account in the name of Twin Bird Construction with TD bank and the subsequent use of an account with the same business name at RBC shows fraudulent intent; 3.) The issue of the identity of the person making the transactions; and 4.) The conduct after posting the cheques in the TD allegations demonstrate a clear wilful blindness as to the nature of the cheques. [34] The defence conceded that the application should be granted, and the trial judge accepted the concession and allowed the application. She did not include any analysis on what use, if any, she made of the similar fact evidence. [35] On appeal, the appellant argues that the trial judge erred because her reasons fail to explain how she used the similar fact evidence. He argues that the lack of discussion does not allow him to understand the ways in which his guilt was decided. He says that this error can only be remedied with a new trial. He does not argue that the evidence was not admissible as similar fact evidence. [36] I disagree. The trial judge’s reasons were extensive. They spanned almost 100 pages in the court transcript. The judgment canvassed the evidence in detail and clearly laid out the basis for conviction. Read as a whole, the reasons communicate that she disbelieved the appellant’s testimony, that she was not left in a reasonable doubt by it, and that the Crown had met its onus to prove that the appellant committed the actus reus and mens rea for the charged offences. [37] The primary issue at trial was whether the mens rea was proven. The trial judge gave detailed reasons for why she did not believe that the appellant was not suspicious of the fraudulent scheme he participated in. [38] A trial judge does not need to discuss every piece of evidence in their reasons. There was ample evidence in the record and in her reasons that supported the conviction, even without considering the similar fact evidence. It was not an error that the trial judge did not refer to other evidence that also could have supported a finding of guilt. (4) The Appropriateness of the Sentence Imposed [39] The appellant also seeks leave to appeal his sentence, and if leave is granted, he appeals the sentence on the basis that the trial judge erred in failing to apply the principle of restraint, and as a result, imposed an excessive and harsh sentence. [40] For this court to intervene with the sentence imposed, the appellant must establish that the sentence is demonstrably unfit, or that the sentencing judge made an error in principle that had an impact on the sentence. For the appellant to establish that the sentencing judge committed an error in principle, he must either show that the sentencing judge committed an error in law, failed to consider a relevant factor, or erroneously took into consideration an aggravating or mitigating factor: R. v. Friesen , 2020 SCC 9, 444 D.L.R. (4th) 1; R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089. [41] At the sentencing hearing, the Crown sought a sentence of 30 months of incarceration to be served in the penitentiary, while the defence submitted that a sentence of 9 months of incarceration was appropriate. After considering the submissions of the parties, the sentencing judge imposed a sentence of 18 months of incarceration followed by 3 years of probation and a stand-alone restitution order. [42] The appellant argues that the sentencing judge failed to give effect to the principle of restraint, as the appellant was a first-time offender and had never been sentenced to any period of incarceration before. In my view, a fair reading of the sentencing judge’s reasons for sentence indicates otherwise. [43] The sentencing judge specifically referred to the fact the appellant was a first-time offender and that while the offence calls for a penitentiary sentence, she would not impose such a sentence. In the reasons, the sentencing judge stated: This gentleman comes to me as a first offender. That is one of the most significant reasons why I’m not putting you in the penitentiary today, sir, because we try to avoid putting first offenders in the penitentiary. We try to avoid jail, at all, but the extent of his fraud, and the aggravating factors, in my view, require there be a significant jail sentence. [44] I see no error in the sentencing judge’s reasoning and weighing of the factors under s. 718.2(e) of the Criminal Code . It is clear from the reasons for sentence that the trial judge considered all sanctions other than incarceration and found that due to the seriousness of the fraud and the significant loss that resulted, incarceration was necessary to adequately address the principles of deterrence and denunciation. She specifically turned her mind to the principle of restraint and reminded herself of her obligation on sentencing to impose the shortest available sentence that is proportionate to the gravity of the offence and degree of responsibility of the offender. [45] The sentencing judge also considered reference letters from the appellant’s family and friends, as well as the impact that incarceration would have on his family, his existing business, and more specifically, his wife and 20-year-old son. [46] The appellant’s offence was serious and premediated. His moral blameworthiness was high. He committed a premediated fraud purely for his personal gain, and this fraud resulted in a combined loss of over $250,000 to two banks. In the circumstances, the decision of the sentencing judge is owed a high degree of deference. E. Disposition [47] For the foregoing reasons, the appeal from conviction is dismissed. Leave to appeal the sentence is granted, but the sentence appeal is denied. Released: September 29, 2021 “M.T.” “M. Tulloch J.A.” “I agree. I.V.B. Nordheimer J.A.” “I agree. M. Jamal 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: M.L. v. B.T., 2021 ONCA 683 DATE: 20211004 DOCKET: M52822 (C69821) Paciocco J.A. BETWEEN M.L. and D.L. Appellants/Applicants and B.T., D.C. and Dilico Anishinabek Family Care Respondents/Respondents Jessica Gagn é , for the appellants/applicants, M.L. and D.L. Edward R. Van Voort, for the respondent, D.C. Katherine Hensel, for the respondent, Dilico Anishinabek Family Care Heard: September 29, 2021 by videoconference ENDORSEMENT OVERVIEW [1] This is a custody dispute between the applicants, M.L. and D.L., and the respondent, Dilico Anishinabek Family Care (“Dilico”). The custody dispute concerns J.T., a child in need of protection, whom Dilico placed in the applicants’ care more than six years ago, eight days after J.T.’s birth. Dilico intends to terminate the placement so that J.T. can be placed with her mother, D.C.’s, family, in the Berens River First Nation in Manitoba. In proposing this placement, Dilico is attempting to ensure that J.T.’s best interests are served by preserving her links to her Indigenous culture, family, and community. However, D.L. and M.L believe that it is in J.T.’s best interests that she remains in their care. Accordingly, they launched a custody application pursuant to the Children’s Law Reform Act , R.S.O. 1990, c. C.12. [2] On September 7, 2021, Newton J. of the Ontario Superior Court of Justice released an appeal decision that sets aside the applicants’ custody application and paves the way for Dilico to remove J.T. from the applicants’ care, and to pursue their intended placement of J.T with her mother’s family. [3] The applicants now bring a motion before me to stay the appeal judge’s decision pending the final determination of their appeal. Dilico does not oppose a conditional stay that would require J.T. to continue to reside with the applicants pending that determination, but requests that the conditional stay maintain their role as the legal guardian of J.T. The applicants ask for supplementary relief as well, which Dilico does not oppose. D.C. did not participate in this motion. J.T.’s father, B.T., was served with the applicants’ custody application, but has not responded. [4] For the reasons that follow, I am ordering a stay of the appeal decision, an order that will assure that J.T. is not removed from the applicants’ care pending the final determination of the appeal. However, I am also imposing conditions in J.T.’s best interests that will satisfy some of Dilico’s concerns. Finally, I make additional orders for associated relief, described below. MATERIAL FACTS [5] J.T., an Indigenous child, was born in Thunder Bay in late 2015. Her case was referred to Dilico at the time of her birth. J.T. was apprehended by Dilico with the consent of her mother, D.C., and her father, B.T, when she was one day old. When J.T. was eight days old, she was placed in the care of Dilico pursuant to a short temporary care agreement signed between Dilico and J.T.’s parents. Dilico  then placed J.T. in the care the applicants, M.L. and D.L., while maintaining contact with her biological family. [6] Under s. 80 of the Child, Youth and Family Services Act , 2017, S.O. 2017, c. 14, Sched 1, (“ CYFSA ”) children’s aid societies are obligated to make reasonable efforts to pursue a plan of customary care for Indigenous children. After a child is found to be in need of protection and placed into extended care pursuant to s. 101(3) of the CYFSA , this can be accomplished through “a plan for customary care”, “an adoption”, or “a custody order under subsection 116(1)”: CYFSA , s. 112(3). Dilico did not pursue these mechanisms, however, choosing instead to develop a plan of customary care for J.T. outside of the court system. [7] When J.T. was four months old, Dilico executed the first of a series of six-month “customary care agreements”. These short term customary care agreements were executed by D.C., as well as the band to which D.C. belongs, the Berens River First Nation in Manitoba. J.T. is now registered as a member of Berens River First Nation. [8] Each of the customary care agreements executed by the parties have the same terms. Specifically, the customary care agreements provide that Dilico is the legal guardian of J.T. during the duration of the agreements. In addition, they provide that Dilico is entitled “to assume the duties of parent of the child”, and to “have the rights and responsibilities as parents of the child for the purposes of the child’s care”. [9] Dilico submits that its long-term plan was to use these customary care agreements as a mechanism for working towards reunification of J.T. with her Indigenous family and community. It now proposes a permanency plan for J.T. to live with D.C.’s aunt, R.C, in the Berens River First Nations. [10] M.L. and D.L., who evidently care deeply for J.T., believe that it is in J.T.’s best interest to remain with them. In June 2017, they instituted custody proceedings under the Children’s Law Reform Act , R.S.O. 1990, c. C.12, which Dilico and D.C. opposed. Specifically, Dilico took the position that as “foster parents” within the meaning of s. 2 of the CYFSA , the applicants are prohibited by CYFSA , s. 102, and Family Law Rules , O. Reg. 114/99,s. 7(4) from applying for or obtaining custody of J.T. Dilico brought a motion to strike the custody application on this basis. [11] The applicants submitted, in response, that they are not foster parents, but “care providers” as defined in An Act respecting First Nations, Inuit and Métis children, youth and families , S.C. 2019, c. 24, s. 1. They contended further that the customary care agreements are invalid. Their objections to the validity of the agreements include the claim that the CYFSA does not provide for out-of-court customary care agreements. They also maintained that Dilico’s customary care plan is not in J.T.’s best interests as required by the CYFSA and argue that it is in her best interest to remain with them. The applicants asked for the dismissal of Dilico’s motion, and for interim custody. [12] On March 3, 2020, a judge of the Ontario Court of Justice agreed with the applicants and dismissed Dilico’s motion. She ruled that the applicants are entitled to continue their custody application, and awarded them interim custody, subject to these material terms: 4.       A Children’s lawyer shall be appointed for [J.T.] or a social work investigation requested. 5.       [Dilico] shall facilitate services for the child, but shall not make decisions about the child without the consent of her caregivers or order of the court. 6.       The mother D.C. and the father B.T. shall be entitled to supervised access. 7.       If R.C. becomes a party, she is entitled to access. 8.       The access exercised by D.C., B.T. and R.C. shall be on the following conditions: a. The access of the parents and great aunt shall not, in combination, exceed 48 hours per month. b. There shall not be any overnight access at this time. c. All access shall be in Thunder Bay. d. No other individuals other than supervisors, the [Office of the Children’s Lawyer] or an agreed third party shall attend the access visits. e. The parents and great aunt shall propose a schedule for the next two months which may be agreed by the Applicants or the matter of the schedule can be addressed with the court. f. R.C. shall refrain from having the child refer to her as mother or mom. 9.       The current customary care agreement and the Alternative Care Agreement shall be stayed pending further order of the court. No other customary care agreements shall be signed regarding [J.T.] and no other proceedings shall be commenced without leave of the court. [13] Dilico appealed the motion judge’s order to the Ontario Superior Court of Justice. The Association of Native Child and Family Services Agencies of Ontario, and the Nishnawbe Aski Nation were granted intervenor status and took legal positions that buttressed Dilico’s legal position. [14] On September 7, 2021, the appeal judge allowed the appeal, agreeing with Dilico that: (1) the motion judge erred in concluding that “Out-of-Court Customary Care Agreements” are not creations of the CYFSA , which must be given priority to court-ordered options; (2) the motion judge committed palpable and overriding error in finding that the applicants were not “foster parents” within the meaning of s. 2 of the CYFSA , and in exercising discretion to permit them to apply for custody contrary to the spirit of the legislation; and (3) erred in not deferring to Dilico’s placement decision. He set aside the motion judge’s decision, struck the applicant’s application for custody, and prohibited the applicants from being parties in a case involving the custody of or access to J.T. THE ISSUES [15] The applicants now bring this motion pursuant to Rule 63.02(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to stay the judge’s decision pending the final determination of their intended appeal. Dilico does not oppose a conditional stay that will require that J.T. reside with the applicants pending appeal. Responsibly, Dilico recognizes that it would not be in J.T.’s best interests to remove her from the applicants’ residence and care, only to have to return her if the applicants ultimately succeed on appeal. They contend, however, that the status quo includes their authority as J.T.’s legal guardian, which is not being respected. They also contend that this authority is required to maintain J.T.’s ties to her Indigenous family, culture and community. They request that the order of this court preserves their guardianship, including their decision-making authority. The applicants oppose this request, arguing that Dilico’s guardianship derives from an invalid customary care agreement and should not be maintained by this court pending the final determination of the appeal. [16] The applicants also seek orders for the admission of fresh evidence, the representation of J.T. on appeal by the Office of the Children’s Lawyer, and leave to file an extended factum. ANALYSIS [17] I am persuaded that a stay of the appeal judge’s decision pending the final determination of an appeal from that decision is in the interests of justice. The three factors required for consideration of such a stay, recently described by this court in UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited , 2021 ONCA 279, at para. 29, each point in that direction. [18] First, a preliminary assessment of the merits of the case reveals that there are serious issues to be tried. Dilico agrees that this is so. Indeed, this appeal will raise important questions about the proper evaluation of the best interests in the placement of Indigenous children who have been apprehended, and it will invite close consideration of the effect of out-of-court customary care agreements. [19] Second, D.L. and M.L. have a tremendous emotional investment in their relationship with J.T. and will suffer irreparable harm if they lose their caregiving role without further and final determination of the serious questions I have identified. More importantly, all indications are that J.T. is being extremely well cared for and has closely bonded with D.L. and M.L. I agree entirely with the responsible and sensitive recognition by Dilico that it is not in her best interests to terminate her placement with D.L. and M.L., given that such outcome could be reversed as the result of this legal action. J.T. requires a stable interim care placement pending  final determination of what her ultimate placement will be. [20] Third, I am persuaded that based on the harms I have identified, D.L. and M.L., and J.T., will suffer greater harm if I refuse to grant a stay, than Dilico, D.C., other members of J.T.’s family or her Indigenous community will experience if I order a stay. [21] Having said that, the law is clear that as an Indigenous child, J.T.’s best interests require that attention is paid to specific considerations, which affect both the “irreparable harm” and “greater harm” considerations discussed above. Subsection 74(3) of the CYFSA obligates courts, when determining the best interests of Indigenous children, to “consider the importance … of preserving the child’s cultural identity and connection to community”. The preamble to the CYFSA makes clear how important it is “in the spirit of reconciliation” to care for Indigenous children “in accordance with their distinct cultures, heritages and traditions”. Section 10 of An Act respecting First Nations, Inuit and Métis children, youth and families removes any doubt that an ongoing relationship between the family and the child’s Indigenous community is of central concern. Specifically, s. 10 provides: 10(1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child, and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration. (2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture. [22] I do not disregard the fresh evidence confirming D.L.’s Indigenous status, proof that was not available before the appeal judge. However, I agree with Dilico that the stay I order must make meaningful provision that enables Dilico to take reasonable steps to nurture J.T.’s connection to her Indigenous culture, her family and her community, pending the final determination of the appeal. I therefore impose conditions on the stay I am ordering, and in recognition that this may not be adequate, I will also be ordering that this appeal be expedited. DISPOSITION [23] The Order of Newton J. of the Ontario Superior Court of Justice dated September 7, 2021, Court File No. FS-20-0062-00AP, is stayed pending appeal. The following conditions apply: 1.       The most recent customary care agreement and the alternative care agreement shall remain in effect pending further order of the court. However, any authority that Dilico had as guardian to determine J.T.’s custody placement is suspended, and J.T. shall not be removed from the physical care or control of D.L. and M.L. pending the final determination of this appeal. The obligation of D.L. and M.L. to “participate with Dilico in developing a Plan of Care for the child in care” is also suspended. 2.       The mother D.C. and the father B.T. and R.C. shall be entitled to supervised access to J.T., in Thunder Bay, on the following conditions: a. The access of the parents and great aunt shall not, in combination, exceed 48 hours per month. b. There shall not be any overnight access at this time. c. No other individuals, other than supervisors, the Office of the Children’s Lawyer or an agreed third party shall attend the access visits. d. R.C. shall refrain from having the child refer to her as mother or mom. [24] I am not prejudging the contested validity of the recent customary care agreement and the alternative care agreement by ordering that they be in effect pending the appeal. These agreements, the terms of which have been agreed to by the applicants, provide a mechanism for ensuring that J.T. continues to receive services, and that her needs as an Indigenous child are attended to pending the completion of the appeal. [25] As indicated, I am also ordering that this appeal be expedited. It is in J.T.’s interest to have this matter resolved urgently and there is no impediment to having an appeal proceed quickly. The applicants are requesting a second appeal and the bulk of the required documentation and argument is already available. [26] The applicants’ request for an order admitting fresh evidence is premature. That motion must be brought before the panel hearing the appeal. [27] If intervenors are permitted to participate in the appeal, the applicant shall be permitted to file a factum exceeding 30 pages, not to exceed 45 pages. [28] Pursuant to s. 89(3.1) of the Courts of Justice Act , R.S.O 1990, c. C.43, the Office of the Children’s Lawyer may act as legal representative for J.T. [29] Within 10 days of the release of this decision, the parties may provide costs submissions in writing not to exceed 3 pages, supported by bills of costs. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2460907 Ontario Inc. v. 1521476 Ontario Inc., 2021 ONCA 682 DATE: 20211006 DOCKET: C69130 Lauwers, Harvison Young and Sossin JJ.A. BETWEEN 2460907 Ontario Inc. Plaintiff/Appellant and 1521476 Ontario Inc. Defendant/Respondent Paul Starkman and Calvin Zhang, for the appellants Elliot Birnboim and Michael Crampton, for the respondent Heard: September 27, 2021 by video conference On appeal from the order of Justice M.G. Ellies of the Superior Court of Justice, dated January 26, 2021 striking the appellant’s claim, with reasons reported at 2021 ONSC 634. REASONS FOR DECISION [1] The appellant 2460907 Ontario Inc. (“246”) appeals from an order striking its claim under r. 21.01(1)(b) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, for pure economic loss arising from the respondent 1521476 Ontario Inc.’s (“152”) exercise of re-entry against 152’s tenant, 2456787 Ontario Inc. (“245”). [2] The underlying facts are straightforward. 152 had entered into a lease with 245. The lease was subsequently amended to allow for renovations, for which 152 was to obtain a building permit. The building permit was delayed. 245 was unable to afford the rent, stopped paying it, and asked 152 to waive or reduce the rent, a request 152 refused. 245 then wrote to 152 advising that a new restaurant to be located in the premises would be operated by 246 and requested that the original lease and the amending agreement both be changed to reflect that the tenant would now be 246. 152 responded by re-entering the premises and distraining the chattels of 245. 245 commenced an action for wrongful distraint, to which 246 was not a party. [3] Over a year later, 246 commenced its own action against 152 for pure economic loss damages for the profits it was going to earn by operating a restaurant in the premises formerly occupied by 245. 246 claimed to have possessory or proprietary interest in the property. 152 brought a motion under r. 21.01(1)(b) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 and was successful. [4] The motion judge found that, as a third party, 246 did not have possessory or proprietary interests in the premises. 152 had not consented to an assignment of the lease and refused to enter into any new agreement with 246, and 246 could therefore not have acquired possessory or proprietary interest in the property. The motion judge also denied 246 the opportunity to amend its claim because (1) it had already been given that opportunity and (2) no amount of amendment would save 246’s claim. [5] The appellant argues that the trial judge incorrectly applied the test set out under r. 21.01(1)(b) by not accepting the facts pleaded in the statement of claim as true, and that he erred in his consideration of its tort claim for pure economic loss. Both arguments must fail. [6] First, we see no error in the motion judge’s finding that 152 did not consent to the assignment of the lease and that 246 therefore had no possessory or proprietary interest in the property. This finding was well grounded in the record before the motion judge and was open to him. The motion judge was aware that “152 failed or refused to allow 246 to occupy the premises.” The precise mechanism through which 246 did not obtain possessory or proprietary interest is not vital. [7] Second, there is no merit to the appellant’s argument that 152 owed it a duty of care arising from its possessory or proprietary interest in 152’s property.  Without such an interest there could not be an entitlement on the part of 246 to claim possessory or proprietary interest in 152’s property and thus a duty of care that could entitle it to economic loss. This was not a case like Canadian National Railway Co. v. Norsk Pacific Steamship Co. , [1992] 1 S.C.R. 1021, which remains the leading case on relational economic loss and upon which the appellant relied. In that case, a barge owned by Norsk Pacific Steamship collided with a bridge owned by Public Works Canada. Although CN did not have any leasehold estate or interest in the bridge, it was, pursuant to a contract with Public Works Canada, its primary user. Nothing about this case is analogous to Norsk. 246 did not have any relationship with 152, contractual or otherwise, that would entitle it to claim possessory or proprietary interest in 152’s property. [8] Given the motion judge’s finding that 152 had not consented to any assignment of the lease, there was nothing to ground the necessary finding of proximity. As the Supreme Court of Canada stressed in 1688782 Ontario Inc. v. Maple Leaf Foods Inc. , 2020 SCC 35, 450 D.L.R. (4th) 181, at para. 21, per Brown and Martin JJ. writing for the majority, “it is proximity and not a template of how a loss factually occurred, that remains a “controlling concept” and a “foundation of the modern law of negligence”: see also, Norsk , at p.1152. [9] The motion judge’s decision to not allow 246 to amend its claim further is owed deference. [10] Appeal is dismissed with costs in the amount of $5,000, as agreed by the parties, awarded to the respondent. “P. Lauwers J.A.” “A. Harvison Young J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681 DATE: 20211006 DOCKET: C68594 Strathy C.J.O., Feldman and van Rensburg JJ.A. BETWEEN Gordon Dunk Farms Limited Plaintiff (Appellant) and HFH Inc., Franken Concrete Forming (2011), McNeil Engineering & Construction Inc. and Township of Guelph Eramosa Defendants ( Respondents ) Daniel Zacks and Gregory Brimblecombe, for the appellant Peter W. Kryworuk and Jacob R.W. Damstra, for the respondent HFH Inc. James A LeBer and Eric A.F. Grigg, for the respondent McNeil Engineering & Construction Inc. No one appearing for the respondent Franken Concrete Forming (2011) Heard: May 21, 2021 by video conference On appeal from the judgment of Justice Gordon D. Lemon of the Superior Court of Justice, dated July 21, 2020, with reasons at 2020 ONSC 4426. Feldman J.A.: A. Introduction [1] The appellant, Gordon Dunk Farms Ltd., suffered a loss when its hog barn collapsed on May 6, 2014. The two principals of the appellant, Gordon Dunk and his son Floyd Dunk, are knowledgeable hog farmers, who had the barn constructed 1.5 years earlier by the three respondents. McNeil Engineering & Construction Inc. (“McNeil”) designed the barn, HFH Inc. (“HFH”) oversaw its construction, and Franken Concrete Forming (2011) (“Franken”) undertook the concrete work. Floyd Dunk’s son and brother were in the barn when it collapsed and were lucky to survive. [2] The appellant had insurance that covered part, but not all, of the loss. The insurer paid the appellant for the covered loss and retained a lawyer to sue the respondents to pursue the subrogated claim. The same lawyer was also retained to recover the balance of the loss on behalf of the appellant directly. That lawyer did not commence the action until May 24, 2016. [3] All parties brought motions for summary judgment to determine whether the action was brought within time or was statute barred. The issue before the motion judge was when the appellant knew or ought to have known that it had a claim against the respondents. Shortly after the barn collapsed, the insurance adjuster retained an expert to examine the barn and report on the cause of the collapse. The motion judge found that the principals knew they had a claim, within the meaning of the Limitations Act , 2002 , S.O. 2002, c. 24, Sched. B. (the “Act”), before they received the final expert report on May 21, 2014. [1] The action was therefore statute barred. [4] For the reasons that follow, I would dismiss the appeal. B. Background Facts [5] In 2011, the appellant decided to build a new hog barn on its property. The principals engaged the respondent McNeil to prepare the design, and the respondent HFH as contractor to oversee the construction, based on the McNeil drawings. They also engaged the respondent Franken to do the concrete work. The barn was completed in 2013. [6] The barn was a rectangular one-story building 300 feet long and 60 feet wide. The pigs lived on concrete floor panels above an eight-foot deep tank. Walls running the length of the tank supported the floor panels and formed channels referred to as “raceways”. The pigs’ manure fell through the floor panels and accumulated in the raceways. A propeller in the tank would agitate the manure and cause it to flow through the raceways toward an exit to be pumped out. During construction, Floyd Dunk, who is knowledgeable about barn construction, was aware that there was no lateral bracing between the raceway walls, but trusted the engineer with respect to what was required. [7] When the barn collapsed, the appellant was aware that the raceway walls had collapsed. The insurance adjuster retained two engineering firms to prepare preliminary reports, R.J. Burnside & Associates Limited (“Burnside”) and Brown & Beattie Building Science Engineering (“Brown”). They both attended on May 8 and provided their preliminary reports that same day. [8] Burnside provided a preliminary view on causation, which was that agitation of the manure moved one raceway wall over, which generated a manure surge that toppled the adjacent walls in a cascading effect. Burnside subsequently discovered a conflict of interest and had no further involvement. Brown did not provide a causation opinion until its final report, delivered on May 21. Its “preliminary conclusion” in the May 21 report, based on the information available, was that manure agitation and pumping caused different levels of manure on either side of the raceway walls, resulting in uneven force on the walls, causing them to collapse. [9] In their cross-examinations, both Gordon and Floyd Dunk acknowledged that with their experience and understanding of barn construction and operation, they believed they understood or knew the cause of the barn collapse, but because they are not engineers, they were speculating regarding the cause of the collapse (my paraphrase). Floyd Dunk testified that he did not see Brown’s final report of May 21, 2014 until shortly before his cross-examination on February 26, 2019. [10] The action was commenced on May 24, 2016. The respondents delivered their statements of defence that included a limitations defence, and moved for summary judgment. The appellant resisted the respondents’ motions and brought its own cross-motion for summary judgment to determine the timeliness of the action. C. The Motion Judge’s findings [11] The motion judge dismissed the respondents’ summary judgment motions based on the record before him. He found the limitation issue to be a triable issue that could not be determined on summary judgment. He then adjourned the appellant’s summary judgment motion pending cross-examinations or a mini-trial. In dismissing the respondents’ motions, he came to the following conclusions: I cannot find that the plaintiff knew all of the facts and was attempting to extend the limitation period by relying on an expert report. Rather, the documents are consistent with the affidavit evidence that, prior to the May 21 report, the plaintiff was unable to determine what had occurred at the bottom of the various walls. As can be seen from the highlighted sections of the documents, the information to that point was uncertain. The fact that those observations confirmed what was already suspected does not move the limitation period backwards. The documents support that the plaintiff had hired an independent witness to, literally and figuratively, get to the bottom of the cause. Until the debris from the collapse was removed, the walls were observed, and the report was provided, the time could not begin to run. Until then, it appears that the cause could not be confirmed. The short period of time between the collapse and the report was reasonable in the circumstances. [12] Following the cross-examinations, the motion judge returned to consider whether he could now decide the limitation issue on the appellant’s motion. He found that he could, and that the additional evidence changed his mind about whether the Dunks knew the cause of the collapse before they received the May 21 Brown report. [13] Gordon Dunk testified that one side of the barn collapsed first, and then the walls fell like dominos, which indicated that the raceway wall between the empty raceway and the full one on one side had collapsed causing the full collapse of the barn. Floyd Dunk agreed that it was “probably obvious” that the cause of the collapse was the lack of lateral supports, but he had no proof. In a statement he gave to the insurance adjuster on May 13, his opinion was that “[h]ad the configuration of the walls been different this collapse would not have occurred.” [14] The motion judge rejected the position that the principals of the appellant were speculating about the cause of the barn collapse. He found that either they were not telling the truth now, or they ought to have known the cause at the time. They were experienced in the building of “exactly this kind of barn.” [2] Also, the barn was of simple construction, the collapse was not a complicated process, and the principals observed what occurred. Although they called it theories or speculation, “they certainly had all the information they needed to found their cause of action”, “the ‘what,’ the ‘who’ and the ‘how’ behind this claim.” [15] The motion judge concluded that the directing minds of the appellant either ought to have known or did know the necessary facts by May 12, when they met with the insurance adjuster to discuss the situation. He also found that the May 21 Brown report contained no new information that the Dunks did not already know. Finally, he observed that while much time was spent on the knowledge of the appellant’s counsel, what the lawyer knew and when he knew it were not determinative; it is the knowledge of the appellant that is. The motion judge’s conclusion was that, by May 12, 2014, the appellant knew: 1) the barn collapsed with significant damage to it and the livestock; 2) the cause of the collapse was insufficient lateral bracing of the raceway walls; 3) the three respondents were responsible for the design and construction of the barn; and 4) the uninsured losses and subrogated claims would not be paid without legal action. [16] Because the action was commenced on May 24, 2016, more than two years after the appellant knew about the claim within the meaning of the Act, the action was statute barred. D. Issues [17] The appellant raises two issues on this appeal: 1) Did the motion judge err by failing to treat each of the appellant’s 20 pleaded acts or omissions as separate claims, and conduct individual discoverability analyses for each? 2) Did the motion judge err by failing to rule on the appellant’s motion regarding the timeliness of its action as against the respondent, Franken, who did not defend the motion? [18] The answer to both questions is “no”. [19] I will also address a third issue that arises from the reasons of the motion judge regarding the proper interpretation of s. 14 of the Act. E. Analysis (1) Did the motion judge err by failing to treat each of the appellant’s 20 pleaded acts or omissions as separate claims, and conduct individual discoverability analyses for each? a) The Appellant’s New Argument on Appeal [20] The appellant pleaded that its damages were caused by the negligence or breach of contract of the respondents. It then pleaded nine specific failures by the respondent HFH, six specific failures by the respondent McNeil, and five specific failures by the respondent Franken. I will set out a few examples: · HFH failed to construct the barn according to the design, failed to ensure the raceway walls were appropriately braced, and failed to ensure the barn was constructed to safely operate. · McNeil failed to adequately design the barn, designed a manure storage system that it knew or ought to have known was unsafe, and failed to adequately inspect the ongoing construction. · Franken failed to construct the concrete portions of the barn safely, failed to use proper construction practices, and failed to provide adequate lateral bracing for the raceway walls. [21] The appellant concedes that some of the claims it alleges are statute barred because it was clear from the cross-examinations that Gordon Dunk knew about the deficient lateral bracing and inadequate design of the raceway system days after the collapse. However, the appellant alleges there is no evidence that its principals knew about other deficiencies in the design, construction, and inspection of the construction by the respondents before receiving the May 21 Brown report, and therefore, the claims based on those failures by the respondents are not statute barred. [22] The appellant’s position is that the report identified causal findings for the first time, including an issue with the height of the raceway walls, the fact that the concrete floor panels did not include any mechanical anchorage to the raceway walls, and that the raceway walls failed at their connection to the concrete floor slab. These facts gave rise to a number of separate claims by the appellant not tethered to the failure to brace the walls. The motion judge did not separately consider whether those claims were also statute barred. [23] To summarize, the appellant submits that it required the May 21 Brown report in order to discover a number of the acts or omissions that each of the respondents committed that caused or contributed to the collapse of the barn, and that each of these acts or omissions constitutes the basis for a separate claim that requires a separate discoverability analysis. [24] This issue was not raised before the motion judge. He did not address it in his reasons. The respondents HFH and McNeil submit that the court should therefore not entertain the argument on the appeal. While the court will not, in most cases, entertain an argument on appeal that was not raised at the original hearing, it can do so where the record is sufficient and the issue is one of law: Becker v. Toronto (City) , 2020 ONCA 607, 452 D.L.R. (4th) 679, at paras. 39-40; Svia Homes Limited v. Northbridge General Insurance Corporation , 2020 ONCA 684, 7 C.C.L.I. (6th) 1, at paras. 23-28. In this case, the issue is the proper interpretation and application of the Act, and the record below is complete. In these circumstances, in my view, it is appropriate to address the issue on this appeal. b) Meaning of a “Claim” [25] The context for the appellant’s argument is ss. 4, 5(1) and (2), and the definition of “claim” in s. 1 of the Act, which state: 1        In this Act, … “claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; 4        Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 5 (1)   A claim is discovered on the earlier of, (a)     the day on which the person with the claim first knew, (i)      that the injury, loss or damage had occurred, (ii)      that the injury, loss or damage was caused by or contributed to by an act or omission, (iii)     that the act or omission was that of the person against whom the claim is made, and (iv)     that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b)     the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). (2)     A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. [26] The meaning of “claim” in the Act was explained by this court in Kaynes v. BP p.l.c. , 2021 ONCA 36, 456 D.L.R. (4th) 247, and confirmed most recently by the Supreme Court of Canada in Grant Thornton LLP v. New Brunswick , 2021 SCC 31, in respect of the New Brunswick Limitation of Actions Act , S.N.B. 2009, c. L-8.5 (the “N.B. Act”). In Kaynes , the court explained that while the Act no longer refers specifically to a cause of action, instead it sets out universal criteria for the commencement of the limitation period in respect of a claim: at paras. 50-58. A claim is pursued in a court proceeding to obtain a remedy for a loss that the defendant caused the plaintiff to suffer by its act or omission. To obtain a remedy in a court proceeding, a person must assert a cause of action. [27] In Grant Thornton , Moldaver J. rejected the argument that there was a meaningful distinction between “claim” and “cause of action” in the context of the N.B. Act (which is similar but not identical to the Ontario Act), stating at para. 37: I recognize that the distinction between “claim” and “cause of action” could be meaningful in some circumstances; but in my view, it is not so here. In fact, the LAA ’s own wording shows that the use of “claim” does not rule out a shared meaning with “cause of action”. Section 1(1) defines a claim as a “claim to remedy the injury, loss or damage that occurred as a result of an act or omission”. In short, s. 1(1) indicates that the legislature’s use of the term “claim” focuses on a set of facts giving rise to a remedy, which is the same meaning that Grant Thornton attributes to the term “cause of action”. c) Discoverability of a “Claim” [28] Because a claim is for a legal remedy in a court proceeding, one can have a claim for the same remedy based on one or more acts or omissions that may have caused the loss. In pleading parlance, different acts or omissions may constitute particulars of the claim. However, the claim, as defined, is for the remedy itself – in this case, damages for negligence and breach of contract. [29] As the Supreme Court of Canada released its decision in Grant Thornton following the oral argument of this appeal, the court sought and received further written submissions from the parties on the effect of that decision on the issues to be decided on this appeal. [30] In Grant Thornton , the issue was whether a plaintiff with a negligence claim must have discovered every constituent element of that claim, including knowledge of a duty of care and a breach of the standard of care, before the limitation period would begin to run. In rejecting that position, Moldaver J. articulated the test for the degree of knowledge required under the N.B. Act to trigger the commencement of the limitation period, at para. 42: [A] claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn. [31] Moldaver J. emphasized that the “plausible inference of liability” standard makes it clear that certainty is not required. Of course, one will not know for certain if a defendant is liable for a loss until the verdict is delivered following a trial or summary judgment motion. [32] The issue that the appellant raises here is: what is the significance of the “act or omission” that is referred to in ss. 5(1)(a)(ii) and (iii) of the Act? Is the appellant correct that a separate limitation period begins to run in respect of each act or omission committed by the defendant as part of its negligent conduct contributing to the loss, thereby requiring a separate discoverability analysis for each such act or omission? Or does the plaintiff only have to know that the defendant’s involvement in the loss means that it must have committed one or more negligent acts or omissions that caused or contributed to the loss? [33] In my view, the limitations jurisprudence of this court, effectively confirmed by the Supreme Court in Grant Thornton , establishes that the appellant’s position has been rejected: see, e.g., McSween v. Louis (2000), 132 O.R. (3d) 304 (C.A.); Lawless v. Anderson , 2011 ONCA 102, 276 O.A.C. 75; Dale v. Frank , 2017 ONCA 32, 136 O.R. (3d) 315, leave to appeal to S.C.C. refused, 37494 (October 12, 2017); and Morrison v. Barzo , 2018 ONCA 979, 144 O.R. (3d) 600. [34] A plaintiff need not know the exact act or omission by the defendant that caused the loss in order to start the limitation period running. What it needs to know is that an incident occurred that resulted in a loss (s. 5(1)(a)(i)), that the defendant did or failed to do something to cause that loss (s. 5(1)(a)(ii) and (iii)), and that, having regard to the nature of the injury, loss, or damage, a court proceeding is an appropriate means to seek a remedy (s. 5(1)(a)(iv)). [35] The damages and injury caused by a car accident provide an instructive example. The defendant’s car slams into the plaintiff’s car. The plaintiff knows the defendant was driving, but may not know whether the defendant fell asleep at the wheel, neglected to get the brakes of the car serviced, was distracted by a phone call, was drunk, or was just careless. The plaintiff will plead all of those allegations as part of its negligence claim. In discovery, the true facts will likely be disclosed. It is also possible that the actual cause or causes of the accident may not be revealed until trial. But the action must be commenced within two years of when the plaintiff knows or ought to know that the defendant committed some act or omission that caused the loss or damage. [36] And what is meant by “knows” is that the plaintiff has the evidentiary basis to believe that the defendant did an act or made an omission that caused a loss for which a court proceeding is appropriate to obtain a remedy – the basis of a plausible inference of liability, in the words of Moldaver J. Of course, at trial, it may turn out that the defendant was not responsible for the loss, either because they owed no duty of care, they met the standard of care, or they did not commit the act or omission that was alleged. [37] It is possible that there may be circumstances where a plaintiff learns later about another act or omission that was not apparent from the circumstances of the loss and that gives rise to a new claim. That is what occurred in Kaynes , where the investor knew early on that the company’s financial disclosure was misleading and negligent, and therefore had to commence its negligent misrepresentation action. But it only learned much later that the company had knowingly and fraudulently made the misleading claims, and therefore the investor had more time to allege fraud. d) Application to this Case [38] Applying these principles to the pleading and the appellant’s knowledge in this case, all of the allegations that are made as separate acts or omissions come under three categories: faulty design, faulty construction, and faulty inspection during construction. The pleading describes particulars or details of failures within each of those categories of responsibility. The motion judge found, based on the record, that Gordon and Floyd Dunk knew shortly after the collapse that the three respondents were responsible for these aspects of the development and delivery of the barn, and that the barn collapsed because of the failure of one or more of those aspects of the planning and erection of the barn. That finding is sufficient to meet the “plausible inference of liability” test for identifying the required acts or omissions of these respondents. [39] The motion judge determined, based on the evidence from the appellant’s principals themselves, that they knew they had a claim for negligence and breach of contract by May 12, 2014, because they knew sufficient facts to be able to infer that negligent design, construction, and/or inspection during the construction of the barn were the cause of the collapse. I see no basis to interfere with his analysis or his conclusion. [40] I would not give effect to this ground of appeal. (2) Did the motion judge err by failing to rule on the appellant’s motion regarding the timeliness of its action as against the respondent, Franken, who did not defend the motion? [41] The respondent Franken defended the appellant’s action but not the summary judgment motion. I am satisfied, based on the reasons of the motion judge, that his failure to find that the action is statute barred as against Franken as well as the other two respondents was an oversight on his part. At para. 6 of his reasons, the motion judge noted that Franken took no position on the motion “but all parties agreed that the result of this motion would likely be binding on Franken in any event.” That, of course, includes agreement by the appellant. [42] The findings by the motion judge applied to the appellant’s knowledge with respect to the involvement of each of the three respondents. As a result, the action is statute barred against all three, including Franken. (3) The motion judge’s error with respect to the meaning and effect of s. 14 of the Act [43] Section 14 of the Act allows a person who is a potential defendant in an action to put the potential plaintiff on notice that the potential plaintiff may have a claim against the person, the potential defendant. The purpose is to give a potential defendant the ability to start the two-year limitation period running so that it can have certainty about when the action will become statute barred. It is not an admission of liability. The section allows the court to take the notice into account if a limitation issue arises in respect of an action after it is commenced. Section 14 reads: 14 (1) A person against whom another person may have a claim may serve a notice of possible claim on the other person. (2)     A notice of possible claim shall be in writing and signed by the person issuing it or that person’s lawyer, and shall, (a)     describe the injury, loss or damage that the issuing person suspects may have occurred; (b)     identify the act or omission giving rise to the injury, loss or damage; (c)     indicate the extent to which the issuing person suspects that the injury, loss or damage may have been caused by the issuing person; (d)     state that any claim that the other person has could be extinguished because of the expiry of a limitation period; and (e)     state the issuing person’s name and address for service. (3)     The fact that a notice of possible claim has been served on a person may be considered by a court in determining when the limitation period in respect of the person’s claim began to run. (4)     Subsection (3) does not apply to a person who is not represented by a litigation guardian in relation to the claim and who, when served with the notice, (a)     is a minor; or (b)     is incapable of commencing a proceeding because of his or her physical, mental or psychological condition. (5)     A notice of possible claim is not an acknowledgment for the purpose of section 13. (6)     A notice of possible claim is not an admission of the validity of the claim. [44] In this case, the appellant’s insurance adjuster sent letters to the three respondents on behalf of the appellant, the potential plaintiff, to put them on notice of the barn collapse and of their potential liability as defendants, and recommended that they refer the letter to their liability insurers and have them contact the appellant’s adjuster for further details. [45] The motion judge took these letters into account to support his finding that the appellant knew sufficient facts to commence the action when those letters were sent. While the motion judge was entitled to do that as a matter of inference, he was in error by referring to s. 14 and relying on s. 14(3) as his authority for doing so. Section 14 had no application to the facts of this case, where it was the potential plaintiff putting the potential defendants on notice and not the other way around. [46] Although the motion judge erred in law by purporting to rely on the wrong section of the Act, it had no effect on the outcome of the motion because the motion judge was entitled to draw an inference, without any authority or direction from the Act, where the notice was from the potential plaintiff to the potential defendants. F. Conclusion [47] For the above reasons, I would dismiss the appeal with costs to the respondents HFH and McNeil in the agreed amount of $15,000 each, inclusive of disbursements and HST. Released: October 6, 2021 “G.R.S.” “K. Feldman J.A.” “I agree. Strathy C.J.O.” “I agree. K. van Rensburg J.A.” [1] The parties agreed that, in 2016, May 21-23 was a long weekend, and that if the limitation period commenced on May 21, 2014, the claim was issued in time. [2] The Dunks had a similar barn built in 1992, and Gordon Dunk confirmed “[s]o we had lots of experience with raceway barns.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. D.B., 2021 ONCA 679 DATE: 20211006 DOCKET: C68523 MacPherson, Roberts and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and D.B. Appellant Michael A. Crystal, for the appellant Natalya Odorico, for the respondent Heard: September 28, 2021 by video conference On appeal from the conviction entered on September 4, 2019 by Justice Martin S. James of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant appeals his convictions for two counts of touching his stepdaughter, A.G., for a sexual purpose, contrary to s. 151 of the Criminal Code , when she was between 10 and 14 years of age, during the period 1996 to 2002. The appellant disputes all allegations. He did not testify at trial. [2] The appellant submits the trial judge misapprehended important evidence that supported the defence, failed to reconcile material inconsistencies in the evidence, unevenly scrutinized the Crown and defence evidence, and failed to provide adequate reasons. He asks for a new trial. [3] We do not agree that the trial judge made any reversible error. [4] At the end of the four-day judge-alone trial, the trial judge gave detailed oral reasons in which he thoroughly reviewed the relevant evidence in accordance with the parties’ submissions and the applicable legal principles. As the trial judge was required to do, he focused his analysis on the material inconsistencies in the trial evidence. As appellant’s counsel fairly acknowledged, the trial judge was not obliged to reconcile every inconsistency. The trial judge did not unfairly scrutinize the evidence but explained, correctly in our view, why the identified inconsistencies in A.G.’s evidence did not detract from her credibility or reliability as a witness. [5] In particular, we are not persuaded by the appellant’s principal submissions on appeal that the trial judge erred in his assessment of the evidence concerning a letter that A.G. wrote and left for her mother, L.G., to find in 2001 when she was 14 years old in which she alleged that the appellant had sexually abused her. The letter was not put into evidence; A.G. and L.G. testified about their recollections of its contents. [6] First, that the trial judge indicated that the letter was found in A.G.’s desk drawer, which is where A.G. said she left it, rather than in her dresser drawer, as her mother testified, is of no moment. The trial judge was alive to the defence theory that A.G. made false allegations and wanted her mother to find the letter so that the appellant would be removed from their home. And this is exactly what ensued: the mother found and read the letter, confronted the appellant, and the appellant left the house until the mother permitted him several weeks later to return. [7] Further, we do not accept that the trial judge applied inappropriate stereotyping to the mother’s emotional reaction in reading A.G.’s allegations. The trial judge determined that the mother could not remember the same details about the letter’s contents that A.G. was able to recount because, in part, she was startled and overwhelmed by them. The trial judge’s assessment was reasonable and reflected the mother’s evidence that she was “devastated” by the letter that contained allegations about her partner sexually abusing her daughter. [8] In their essence, the appellant’s submissions amount to a request that this court redo the trial judge’s findings of fact and reweigh the trial evidence. That is not the function of this court. We see no error that warrants appellate intervention. Disposition [9] For these reasons, we dismiss the appeal. “J.C. MacPherson J.A.” “L.B. Roberts J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Rowe, 2021 ONCA 684 DATE: 20211006 DOCKET: C67618 Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A. BETWEEN Her Majesty the Queen Appellant and Lance Rowe Respondent Tom Lemon and Bari Crackower, for the appellant Marianne Salih and Jeffery Couse, for the respondent Heard: March 25, 2021 by video conference On appeal from the acquittals entered by Justice Peter Bawden of the Superior Court of Justice, sitting with a jury, on October 16, 2019. Fairburn A.C.J.O.: A. Overview [1] The respondent was tried by a judge and jury on a two-count indictment: (1) possession of cocaine for the purpose of trafficking; and (2) possession of the proceeds of crime. He was acquitted on both counts. [2] The charges arose from an alleged drug transaction that was said to have taken place inside a vehicle that the respondent was driving. Britany Simpson was in the front passenger seat. The respondent parked the car in a parking lot and an unknown man entered the back seat of the car. According to the Crown, the unknown male bought cocaine from the respondent and exited the car. The respondent was then arrested by police who had been watching the vehicle from afar. [3] Ms. Simpson was detained by police upon the respondent’s vehicle being searched. The search revealed cash and cocaine. Ms. Simpson was then arrested as well. A few hours later, after Ms. Simpson was informed that she was being unconditionally released, she provided a videorecorded statement to the police. She explained what she had witnessed, including that the respondent had weighed a white powdery substance and given it to the unknown male in the back seat in exchange for a handful of $20 bills. Ms. Simpson recanted that statement at trial, instead maintaining during her trial testimony that the respondent and the unknown male did nothing but “conversate”. [4] Unsuccessful in the effort to refresh Ms. Simpson’s memory with the use of her prior statement, the Crown successfully applied to cross-examine her pursuant to s. 9(2) of the Canada Evidence Act , R.S.C., 1985, c. C-5 (“ CEA ”). Ms. Simpson refused to adopt the statement, claiming instead that she had lied to the police, simply telling them what she thought they had wanted to hear. [5] In the face of her full recantation, the Crown applied to have the statement admitted for the truth of its contents under the principled exception to the rule against hearsay. That application was dismissed. In accordance with that ruling, the trial judge instructed the jury that, while they could consider Ms. Simpson’s prior police statement for purposes of determining her credibility, they could not consider the statement for the truth of its contents. [6] This Crown appeal rests on what are said to be numerous errors in the trial judge’s hearsay ruling. I agree. The hearsay ruling contains multiple errors that resulted in the erroneous exclusion of this critical evidence. A new trial is required. B. Background Circumstances Informing the Admissibility of the Hearsay Statement (1) The Arrest and Search [7] The respondent was being investigated for drug trafficking. The police obtained two search warrants: one for the respondent’s car and one for his residential address. The warrants were to be executed on March 27, 2018, the same day that the police planned to arrest the respondent. [8] The police were waiting at a location where they knew the respondent would arrive. When he arrived, Ms. Simpson was seated in the front passenger seat of his car. The police saw another vehicle pull into the parking lot a short time later. An unknown male got out of the second vehicle and entered the back seat of the respondent’s car. While the police could not see exactly what took place within the car, it appeared to one officer that the man in the back seat and the respondent exchanged items. The unknown male then left the respondent’s car, returned to his own vehicle, and drove away. [9] The respondent was then arrested by the police and Ms. Simpson was detained. During the vehicle search, a plastic bag containing 202 grams of cocaine was located on the rear floorboards behind the passenger seat. As well, $300 in $20 bills was found inside a compartment in the front console area of the car. Ms. Simpson was then arrested. (2) Britany Simpson’s Videorecorded Statement [10] The respondent was arrested just after 1:00 p.m. Ms. Simpson was arrested a short time later. A few hours after that, around 4:00 p.m., the police decided to release Ms. Simpson without charges. Before leaving the police station, she provided a videorecorded statement about what she witnessed in the respondent’s car. Ms. Simpson confirmed at trial that, prior to giving her statement: (1) the police told her that she was being unconditionally released; and (2) the police had offered her the opportunity to speak to a lawyer but she had declined to do so. [11] In her videorecorded statement, Ms. Simpson provided significant details about what she saw during the transaction. Some highlights from Ms. Simpson’s statement include: (1) The respondent and the unknown male in the back seat “didn’t discuss how much grams or anything like that … [the respondent] took the … bag out of the back seat.” (2) The clear plastic bag contained a “powder” that was “white” and “soft”, but “it wasn’t a liquid.” (3) The respondent retrieved the bag from “just behind me.” (4) The man in the back seat “put [a] scale down in between the arm rest.” (5) The respondent “had a scoop” and “poured out some” of the powder onto the scale, but “I’m not too sure how much.” (6) When the men “finished … doing the exchange … [the respondent] put the bag … underneath his seat.” (7) The unknown male then “asked [the respondent] if he had any weed. He said no he didn’t sell weed and then … the gentleman in the back seat gave him money.” (8) “I saw them counting … He was counting the money … It was in twenties.” (9) The respondent then “put [the money] in the front console”, described as the “compartment in his car like in the little console. Like there’s like a little pocket.” [12] Ms. Simpson’s videorecorded statement demonstrated that she was an eyewitness to a cocaine transaction that took place inches away from her. And, importantly, her statement aligned with what was found during the search of the vehicle: (1) a clear plastic bag containing 202 grams of cocaine was located on the floor in the back of the vehicle, just behind the passenger seat; and (2) $300 in $20 bills were located in a compartment in the front console of the car. [13] As I will now explain, by the time of the trial, Ms. Simpson testified that she only saw the respondent and unknown male “conversate”. In other words, unlike what she told the police, she did not see them engage in a cocaine transaction. (3) Britany Simpson’s Trial Evidence and the Rulings that Followed [14] Ms. Simpson was called as a Crown witness at trial. While her testimony was consistent with much of what she had previously told the police, it was inconsistent with respect to anything involving the respondent’s culpability. For instance, while she testified that the unknown male entered the back seat of the car, she said that the respondent and unknown male did nothing more than talk or, as she put it, “conversate”. Not a hint of white power, a scoop, a plastic bag, a scale, or money was mentioned. [15] While Ms. Simpson was given the opportunity to refresh her memory with a transcript produced from her prior videorecorded statement, she said that it was of no assistance. Accordingly, the Crown applied pursuant to s. 9(2) of the CEA to cross-examine Ms. Simpson on her prior inconsistent statement. That application was successful. The cross-examination was not. [16] The trial judge noted in his s. 9(2) ruling that Ms. Simpson acknowledged that she had not been threatened or induced to make the videorecorded statement. I share that view. The trial judge also noted that there was nothing oppressive about the interview. From having read the transcript of that interview, I also share that view. The trial judge further noted that much of what Ms. Simpson said was “corroborated by information obtained by police through other aspects of the investigation.” I share that view as well. [17] The trial judge then went on to explain in his s. 9(2) ruling what he thought was motivating Ms. Simpson’s recantation: Having viewed the video and heard the evidence of Ms. Simpson in the presence of the jury and in a voir dire I do not believe she lacks memory due to the trauma of the arrest or that she fabricated evidence because she believed the police wanted her to implicate Mr. Rowe . Based on all the evidence I believe that it is most likely that Ms. Simpson is trying to assist Mr. Rowe at this trial by giving false evidence . [Emphasis added.] [18] Having concluded that Ms. Simpson was “most likely” lying, the trial judge permitted the Crown to cross-examine Ms. Simpson on her prior statement pursuant to s. 9(2) of the CEA . While Ms. Simpson acknowledged that she had said the things reflected in her police statement, she disavowed their truth. [19] Contrary to what she had told the police, Ms. Simpson maintained that she had not seen cocaine in the car that day. Instead, she claimed that she told the police what she “assumed” they wanted to hear. She said she did that because she was concerned about being late to pick up her children and about the police possibly having to cut off some jewelry she was wearing. Even so, she acknowledged that: (1) before giving the statement, she knew she was being released without charges; (2) no one told her that her release was conditional upon giving a statement; (3) no one promised her anything in return for the statement; and (4) no one shared any details about the investigation with her. [20] Following her recantation, the trial Crown signaled the desire to bring an application to have Ms. Simpson’s statement admitted for the truth of its contents under the principled exception to the rule against hearsay. The trial judge immediately commented that any such application would be “dodgy” in nature. He seems to have been of the view that the Crown had enough evidence without Ms. Simpson’s statement being admitted for its truth: [The Crown] do[es]n’t by any stretch need in the larger context of [its] case to introduce the statement for the purposes of its truth it seems to me because frankly [it] already ha[s] quite a powerful case and … there’s no risk at all that any trier of fact is going to look at Ms. Simpson and think that she was the one who was in the possession of the cocaine in the car. [Emphasis added.] [21] Despite the trial judge’s express reservations, the trial Crown informed the court the following day that she intended to pursue the hearsay application. The Crown’s concern was that the defence would suggest that the cocaine found in the vehicle belonged to someone other than the respondent and that he had no knowledge of its presence in the vehicle. If admitted for the truth of its contents, Ms. Simpson’s statement – an eyewitness account of the respondent selling the cocaine – would offer powerful evidence rebutting that anticipated defence position. [22] The trial judge said that he would hear the matter at the end of the Crown’s case. Therefore, the Crown proceeded to call its last three witnesses. [23] Later that day, when the Crown reached the end of her case, the trial judge said: “[B]efore you close your case I think you want to quickly for the record make submissions as to why I should admit the statement of Britany Simpson for the truth of its contents.” The transcript does not reveal that the Crown simply wanted to put something on the record. Rather, the record demonstrates that the Crown wanted to pursue the hearsay application in earnest. [24] In any event, the trial Crown then offered the trial judge a copy of the decision in R. v. Bradshaw , 2017 SCC 35, [2017] 1 S.C.R. 865 . The trial judge declined the offer, saying that he did he did not wish to hear submissions on the law. Instead, he wanted to hear the Crown address what “factually … makes out reliability in the circumstances” of the case. [25] The Crown first addressed procedural reliability, explaining that a statement being videorecorded is a procedural safeguard for reliability, and that Ms. Simpson’s statement had been videorecorded. The trial judge interjected, suggesting that a videorecording was “not present in this case” because the Crown was “not in a position today to present the jury with the video.” The Crown confirmed that, if admitted into evidence, the videorecording would need to be edited for some prejudicial information in advance of playing it for the jury. It became clear that there would be no pause in the trial to permit the editing to take place. [26] The trial judge then asked a couple more questions, which the Crown answered. The Crown then said, “I can continue my submissions or answer any other questions arising from that.” The trial judge cut her off , saying, “I think I have your submissions”. He dismissed the application for reasons to follow, adding that if the defence evidence “awakens [the] issue in a way which is presently utterly unforeseeable” then the Crown could revisit the ruling. (4) The Defence Case: The Respondent and Sade Levene [27] The respondent testified exactly as the trial Crown had anticipated, claiming that many other drivers used the car, including his brother, cousin, girlfriend, ex-girlfriend, and roommate. Accordingly, he accepted that cocaine was found in the car, but claimed to have no knowledge of its existence, the inference being that someone else must have left it there. [28] Following the respondent’s in-chief testimony, the trial Crown requested permission to make submissions on “how the evidence that [the respondent] has given makes the hearsay evidence … highly probative” in the sense that Ms. Simpson’s statement placed “the drugs squarely in his hands moments before his arrest”. The trial judge answered, “Surely that hasn’t changed. You didn’t really think he was going to stand up and say anything other than he didn’t know?” The Crown then said she was having a “hard time understanding why that is not sufficiently material or probative to overcome any prejudice” but acknowledged that she would have to await the written ruling. That ruling was released about a month following the trial. [29] At the end of the respondent’s evidence, the defence called Ms. Levene to the stand. She was the respondent’s former girlfriend and, essentially, took full responsibility for the cash and cocaine that was found in the car. [30] Ms. Levene said that she had used the respondent’s car to go to the bank during the morning of the day that the respondent was arrested. She had taken out $300 in $20 bills, which she placed in the compartment of the vehicle where the gear stick is located. She also said that she met up with her then boyfriend after her attendance at the bank. She said that he asked her to hold onto a plastic bag for the day. She identified the bag that contained the cocaine as the one that her then boyfriend had given to her. She said that she had placed that bag “on the floor in the backseat kind of under the passenger seat.” [31] In other words, she placed both the cash and the bag in the locations where they were later found by the police. C. The Erroneous Approach to the Admissibility Inquiry (1) Overview [32] Hearsay is an out-of-court statement relied upon for the truth of its contents. Hearsay statements are presumptively inadmissible: R. v. Khelawon , 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2. [33] The primary rationale underlying the rule against hearsay is rooted in concerns over the inability to test the reliability of out-of-court statements. Absent the declarant being present in court and available for contemporaneous cross-examination, concerns over reliability prevail. These concerns include whether the statement is accurately recorded and whether the declarant accurately and honestly perceived, recalled, and narrated the events: Khelawon , at para. 2. [34] Accordingly, the presumption against the admissibility of hearsay evidence is directed at improving the court’s “truth-seeking function”: Khelawon , at para. 2. However, there are times (like this case) when the exclusion of hearsay statements will directly undermine the court’s fact-finding process; where the exclusion of hearsay statements, rather than their admission, will “impede accurate fact finding”: Khelawon , at para. 2; Bradshaw , at para. 22. [35] Accordingly, trial judges perform an important gatekeeping function when considering whether the presumption against admission has been rebutted. In making that determination, judges focus upon whether the twin criteria of necessity and threshold reliability have been met on a balance of probabilities: Bradshaw , at para. 23, referring to Khelawon , at para. 47. Even where that burden has been met, trial judges retain a residual discretion to nonetheless exclude the statements if their prejudicial effect outweighs their probative value: Khelawon , at para. 3. (2) The Erroneous Approach to Necessity [36] The trial judge’s assessment of necessity was as follows: I will assume for present purposes that necessity is made out although I have reservations on the point . It is true that the Crown has been deprived of the fulsome description of a drug transaction which appears in Ms. Simpson’s statement to police. There is, however, reliable evidence from other sources which would permit the jury to infer that a drug transaction took place without considering Ms. Simpson’s statement for the truth of its contents . [Emphasis added.] [37] The appellant argues that the trial judge erred in his necessity analysis. In particular, the appellant argues that, even though the trial judge said that he was prepared to “assume” necessity had been made out, read in context, he did not accept that fact. As a result, his expressed “reservations” about necessity infected the balance of his decision. [38] The respondent maintains that, even if the trial judge was wrong about how he expressed his reservations, it had no effect on the result, since his reasoning must ultimately be taken at its highest. The fact that the trial judge said that he was prepared to assume that necessity had been made out should be accepted by this court and provide a full answer to this objection on appeal. [39] I start with the observation that the trial judge’s expressed reservation about whether necessity had been made out appears to rest on his view of the overall strength of the Crown’s case. The trial judge saw the Crown’s case as a strong one and equated that view with a lack of necessity. As in the passage just quoted, the trial judge emphasized that “without considering Ms. Simpson’s statement for the truth of its contents”, the jury had “reliable evidence from other sources” that would permit the inference that a drug transaction took place. Later in his reasons, the trial judge put the point succinctly: “the Crown hardly needs the statement to make out its case” (emphasis added). [40] In my view, the trial judge erred by approaching necessity from the perspective of what he thought the Crown needed to “make out its case.” Every participant in a criminal trial operates within their own zone of responsibility. That is how fair trials that lead to just verdicts are best achieved. It was for the Crown, not the trial judge, to determine what evidence was necessary to prosecute the matter; it was for the trial judge to adjudicate upon any admissibility issues that might have arisen from the Crown’s decisions in that regard. [41] Under the principled exception to the rule against hearsay, necessity is not measured by the overall strength of the case of the party seeking admission of the statement for the truth of its contents. That is, “[t]he criterion of necessity […] does not have the sense of ‘necessary to the prosecution’s case’”: R. v. Smith , [1992] 2 S.C.R. 915, at p. 933. [42] Rather, necessity is measured by availability. Sometimes a hearsay statement becomes unavailable because a witness goes missing, dies, or is otherwise unavailable to testify. And sometimes a statement becomes unavailable because a witness is present and available to testify, but refuses to do so or, as in this case, recants the earlier statement. In the case of a recantation, the “recanting witness holds the prior statement, and thus the relevant evidence, ‘hostage’:” R. v. B. (K.G.) , [1993] 1 S.C.R. 740, at p. 799. In these circumstances, necessity arises from the unavailability of the testimony that would otherwise reflect the content of the prior relevant statement: Khelawon , at para. 78. [43] Accordingly, “[w]here a witness recants from a prior statement, necessity is established”: R. v. Youvarajah , 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 22. It is that simple. The focus then turns to threshold reliability. [44] While I accept that the trial judge did as he stated – that he “assume[d] for present purposes that necessity [was] made out” – the erroneous observations he made about the fact that, in his view, the Crown “hardly” needed Ms. Simpson’s statement bled into his analysis regarding the exercise of his residual discretion. I will come back to this point later in these reasons. (3) The Erroneous Approach to Threshold Reliability (a) Overview [45] Threshold reliability can be shown by demonstrating that there are: (1) adequate substitutes in place to test the truth of the statement (“procedural reliability”); or (2) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (“substantive reliability”): Bradshaw , at para. 27; Khelawon , at paras. 61-63; and Youvarajah , at para. 30. Procedural and substantive reliability do not exist in mutually exclusive silos, but rather work in tandem to overcome hearsay dangers: Bradshaw , at para. 32; R. v. Devine , 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22. Therefore, strength in one area, such as substantive reliability, can be compensated for by procedural reliability and the opposite is also true. [46] The appellant maintains that the trial judge erred in his approach to both procedural and substantive reliability. I agree. I will address each in turn. (b) Procedural Reliability [47] Because hearsay evidence is not given by a witness in court under oath or affirmation, and is not subjected to the typical rigours of contemporaneous cross-examination, procedural reliability focuses upon whether there exist adequate substitutes for testing the statement: Bradshaw , at para. 28; Khelawon , at para. 63. [48] Over time, courts have come to recognize three ways of rationally evaluating the truth and accuracy of hearsay statements from a procedural perspective: (1) the availability of the declarant to be cross-examined before the trier of fact; (2) the presence of an oath or solemn affirmation after a caution about the consequences arising from being untruthful; and (3) videotaping or recording the statement in its entirety: B. (K.G.) , at pp. 795-96; Youvarajah , at para. 29. [49] The trial judge was of the view that the “one and only procedural safeguard” present in this case was that Ms. Simpson’s statement was videorecorded, yet, in his view, that videorecording was not available to be played for the trier of fact. Accordingly, the trial judge formed the view that the statement contained no procedural safeguards. [50] The appellant argues that the trial judge erred in numerous respects when he arrived at this conclusion. (i) The Failure to Acknowledge the Availability of the Declarant for Cross-Examination [51] First, the appellant maintains that the trial judge erred by failing to appreciate the single most significant procedural safeguard that was present: Ms. Simpson’s availability for cross-examination. [52] While the respondent acknowledges that the trial judge overlooked the fact that Ms. Simpson was available for cross-examination, he claims that no harm was caused by this oversight because it would not have resulted in admissibility in any event. The respondent maintains that, because Ms. Simpson had lost her memory of what happened while she was seated in the car that day, a cross-examination on the statement to undermine its truth would have been useless. Accordingly, the respondent contends that, in the circumstances of this case, the procedural safeguard typically attaching to the availability of the declarant to be cross-examined was no procedural safeguard at all. [53] I start with the observation that the availability of the declarant for cross-examination is widely considered the most important of the three procedural safeguards: R. v. U. (F.J.) , [1995] 3 S.C.R. 764, at para. 39. The status of the declarant as a witness who can be cross-examined on a prior inconsistent out-of-court statement has been described as the “most powerful factor favouring admissibility”: R. v. Couture , 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 95. The importance of the declarant’s participation in court before the trier of fact was again reinforced in Youv arajah , at para. 35, where this factor was described as the “most important factor supporting the admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents.” Indeed, as more recently noted in Bradshaw , at para. 28, “Some safeguards imposed at trial, such as cross-examination of a recanting witness before the trier of fact , may provide a satisfactory basis for testing the evidence” (emphasis added). [54] The trial judge erred by failing to take this fundamental procedural safeguard into account during the admissibility analysis. [55] Respectfully, I do not agree with the respondent’s suggestion that Ms. Simpson had no memory of the events in question and, therefore, could not have been cross-examined effectively. Ms. Simpson had a memory of that day, it just did not accord with her police statement. The juxtaposition was significant. In her police statement, she recounted in fine detail the cocaine trafficking that took place in her immediate presence. In her trial testimony, she explained that she had never seen the respondent in possession of cocaine and, on the day in question, only saw and listened to the respondent and unknown male “conversate.” That is not a lack of memory; it is an entirely different version of events. (ii) The Overemphasis on the Lack of Oath and Caution [56] Second, the appellant claims that the trial judge overemphasized the fact that the statement was not provided under oath or solemn affirmation, nor with any caution about the importance of telling the truth and the consequences of lying. The trial judge said: The interview proceeded without any reference to the necessity of telling the truth. Ms. Simpson was not sworn. She was not provided with any form of caution regarding the potential consequences of being untruthful. There was no attempt to adopt any form of solemnity which would bring home to Ms. Simpson the necessity of providing a truthful statement. [57] In my view, the trial judge placed undue emphasis on the factors relating to whether Ms. Simpson understood that she should tell the truth. While the trial judge is right that Ms. Simpson was not sworn or asked to affirm, nor was she cautioned about failing to tell the truth, these were not particularly concerning features of this case. [58] While it would have been preferable for the police to have specifically brought the solemnity of the moment home to Ms. Simpson, it is difficult to imagine that she did not appreciate the need to tell the truth. The statement forming the subject of the admissibility inquiry was not made in a random location to a random member of the public. She was in a police station, while on video, speaking to police officers. She had been arrested earlier in the day and agreed that she had been told that she was going to be released without charges. In these circumstances, whether she was told it or not, it is highly unlikely that Ms. Simpson would not have appreciated the solemnity of the occasion and the need to tell the truth. [59] In any event, the oath or affirmation was the least necessary of the procedural safeguards. To this end, I would echo the suggestion by Moldaver J.A. (as he then was) that, when an out-of-court statement is videorecorded and the declarant is available for cross-examination, “the oath has very little burden to shoulder in the threshold reliability assessment”: R. v. Trieu (2005) , 74 O.R. (3d) 481 (C.A.), at para. 78. The situation described in Trieu is precisely the one here, with Ms. Simpson available for cross-examination and her recanted statement having been videorecorded. (iii) The Treatment of the Statement as if it was not Captured on Video [60] This takes us to the appellant’s third alleged error in the trial judge’s procedural reliability analysis: treating Ms. Simpson’s statement as if it was not videorecorded. As before, the trial judge formed the view that the “one and only procedural safeguard” in this case would have been that Ms. Simpson’s recanted statement had been videorecorded. Yet, in the trial judge’s view, because the videorecording required some editing, it had to be removed as a factor pointing toward procedural reliability: The Crown is not able to play the video to the jury because of inadmissible utterances which have not been vetted from the digital file. Thus, if the statement were to be admitted, the jury would only hear the Crown read a transcript of the statement and would be deprived of its one and only procedural safeguard. [61] The appellant argues that the trial judge erred by neutralizing the force of this procedural safeguard – the fact that the statement was videorecorded – simply on the basis that the videorecording required some editing. Further, the appellant argues that, even if the court was not prepared to give the Crown time to make the necessary edits, an accurate transcript of that videorecording existed and could have acted as an adequate substitute for the videorecording. [62] The respondent does not dispute that the statement was videorecorded. Ultimately, though, the respondent emphasizes that failing to have the videorecording in a ready-to-play state means that the trial Crown must bear the sole responsibility for the trial judge’s treatment of the videorecording as non-existent, thus removing it from the procedural reliability calculus. [63] The fact is that the videorecording was an important procedural safeguard attaching to Ms. Simpson’s statement. As Lamer C.J. described in B. (K.G.) , videotaping is a powerful tool in respect of reliability because it essentially places the trier of fact in the same room as the declarant and the interviewer. As a result, “the experience of being in the room with the witness and the interviewing officer is recreated as fully as possible for the viewer … In a very real sense, the evidence ceases to be hearsay in this important respect, since the hearsay declarant is brought before the trier of fact”: at p. 793. Of course, when the declarant is a recanting witness, such as Ms. Simpson, not only is the declarant before the trier of fact on video, but she is also before the trier of fact in the witness stand. [64] Accordingly, the importance of the videorecording to the determination of procedural reliability in this case cannot be denied. The question is whether the trial judge erred by treating Ms. Simpson’s statement as if it had not been videorecorded only because it was not in a ready-to-play state at the very moment of the admissibility voir dire . [65] Context is important to understanding this issue. [66] The appellant does not dispute that there were some prejudicial portions of the videorecording that would have required editing before the videorecording could be played for the jury. The need for those edits arose from the fact that Ms. Simpson told the police that the respondent went to the parking lot where he was subsequently arrested because he had told her that he needed to attend at a “probation”/“parole” appointment. [67] Therefore, the need for edits was clear. What is not clear is how long that editing exercise would have taken. The reason it is not clear is that the trial Crown was essentially cut off from making submissions on this point at the voir dire . [68] After the trial Crown submitted that the existence of the videorecording provided an important procedural safeguard, the trial judge announced that it was “not present in this case” because the trial Crown was “not in a position today to present the jury with the video.” The Crown responded that treating the matter as if there was no videorecording was: putting the Crown in a difficult situation. I feel like if there was more time then I could rely on the availability of an edited video statement but it sounds as if given the timeline that the court would like us to follow I’m effectively stuck with … a written transcript which is still a … record of the statement. [69] Clearly, the trial judge was of the view that the Crown should have been better prepared. As he said in his ruling, released nearly a month following the trial, “the Crown did not meet with Ms. Simpson prior to trial and had seemingly not anticipated that she would deviate from the statement which she made to police.” In the trial judge’s view, “[t]hat possibility should have been anticipated.” [70] No one can dispute the central importance of moving trials along in an organized and efficient manner. Every party to the proceeding, including the court, is obliged to tackle the “culture of complacency towards delay”, a culture that was addressed in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 40, and R. v. Cody , 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 37. In order to achieve this laudable goal, it is necessary that the parties come to court organized and prepared to efficiently move the case forward. [71] At the same time, it is not a rule of efficiency at all costs, including fairness. [72] It is difficult to know what facts the trial judge relied upon to conclude that the Crown had fallen short by failing to anticipate that Ms. Simpson would recant. While he implied that the failure of anticipation arose from the failure to meet with the witness ahead of time, the record does not reveal why the Crown did not meet with Ms. Simpson. [73] The court is not always privy to the things that motivate decisions around trial preparation. Speculation on these points can be a stranger to the truth. There are all manner of legitimate reasons why counsel may choose to meet or not meet with a witness ahead of trial and all manner of legitimate reasons why a witness may choose to meet or not meet with counsel ahead of trial. [74] While the trial judge is to be commended for his concern over moving this jury trial forward in an efficient manner, his summary removal of the videorecording from the procedural reliability analysis, simply because he thought that the Crown should have “anticipated” the possibility of a recantation, was an error. [75] Eight court days had been set aside for the trial, although the jury was told that it was likely to conclude in five or six days. By all accounts, the Crown had moved the prosecution forward efficiently. With the exception of the hearsay voir dire , the case for the Crown was complete by the afternoon of the fourth day of trial. Rather than cut off the Crown’s submissions about the importance of the existence of the videorecording, the trial judge should have explored how long it would have taken the Crown to produce the edited version of the video. The record reveals no reason to believe that this could not have been accomplished in very short order. [76] With those meaningful inquiries having been made, the trial judge would have been in a better position to properly adjudicate upon the matter. If the editing exercise would have taken too long, particularly in the context of a jury trial, then the trial judge would have had to turn his mind to the existence of the transcript of the videorecorded statement as an alternative procedural safeguard. That transcript could have been edited in very short order, or the Crown could have read from the statement, simply leaving out the references to the prejudicial information. [77] Yet the trial judge’s reasons suggest that he considered the transcript to be meaningless in the admissibility inquiry. While not as strong a procedural safeguard as the videorecording, the transcript, representing an accurate recording of that statement, was in fact also an important procedural safeguard that should have been considered in the admissibility analysis. Even if he had been right about treating the statement as if it had not been videorecorded, the trial judge erred by underestimating the procedural value of the transcript of Ms. Simpson’s statement. (c) Substantive Reliability [78] There is a critical distinction to be made between threshold and ultimate reliability. At the threshold stage, it is for the trial judge to determine whether there exist “sufficient indicia of reliability so as to afford the trier of fact ‘a satisfactory basis for evaluating the truth of the statement’”: R. v. Baldree , 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 83, citing R. v. Hawkins , [1996] 3 S.C.R. 1043, at para. 75; Khelawon , at para. 88. However, whether the statement is actually true remains within the exclusive jurisdiction of the trier of fact and, in a criminal trial involving a jury, it is “constitutionally imperative” that this be so: Khelawon , at para. 50. [79] The trial judge reviewed the evidence that corroborated Ms. Simpson’s statement, of which there was a significant amount. In particular, the cash and cocaine found in the respondent’s vehicle, and the location of those items, accorded almost exactly with what she said in her statement. For instance, the twenty-dollar bills that she said that she saw the unknown male give to the respondent were found exactly where she said they had been placed by the respondent. As well, the plastic bag containing the white, powdery substance that she described was found near where she said it had been taken from. Coupled with the fact that Ms. Simpson acknowledged at trial that the police had not shared any investigative details with her, the corroboration arising from the search was nothing short of striking in nature. [80] Even so, the trial judge concluded that the Crown had failed to establish substantive reliability. His reasoning is captured in the following passage: Although this is compelling corroboration of Ms. Simpson's statement, I cannot find that it meets the standard set out in Bradshaw . The standard for substantive reliability is high. Given the circumstances of this case, I find that it is reasonably possible that Ms. Simpson fabricated her statement either to ensure her own release or to cover for her involvement in the drug transaction. I cannot say that the corroborative evidence is so strong that the only likely explanation for the hearsay statement is that Ms. Simpson was telling the truth . [Emphasis added] [81] The trial judge then concluded that the “substantive reliability of the statement is insufficient to outweigh the complete lack of procedural guarantees of reliability ” (emphasis added). [82] I start with the observation previously made, that procedural and substantive reliability work together to overcome hearsay dangers. They exist in a symbiotic relationship, with strength in one area compensating for weakness in another: Bradshaw , at para. 32; Devine , at para. 22. [83] For the reasons already set out, contrary to the trial judge’s suggestion that there was a “complete lack of procedural guarantees of reliability”, there were strong indicators of procedural reliability, the most important one being Ms. Simpson’s availability for cross-examination. Therefore, as a starting point, it was erroneous to conclude that the “substantive reliability of the statement” was insufficient to outweigh the “complete lack of procedural guarantees of reliability.” To the contrary, the substantive reliability of the statement simply added to the procedural guarantees present in this case, all pointing toward the admission of Ms. Simpson’s statement. [84] Second, I would note that the trial judge seems to have been proposing an alternative explanation for Ms. Simpson’s statement, that she was fabricating to “ensure her own release or to cover for her involvement in the drug transaction.” While Bradshaw , at para. 48, instructs that when considering substantive reliability, the trial judge “must … identify alternative, even speculative, explanations for the hearsay statement”, the trial judge’s suggestion that Ms. Simpson was fabricating does not sit comfortably with the s. 9(2) CEA ruling provided during the trial proper. [85] In the s. 9(2) ruling, as previously reviewed, the trial judge concluded that Ms. Simpson was “likely” trying to assist the respondent by “giving false evidence” at trial (by recanting her statement). Yet the hearsay ruling reveals a conclusion that it was “reasonably possible that Ms. Simpson fabricated her statement either to ensure her own release or to cover for her involvement in the drug transaction.” It is somewhat difficult to reconcile these different conclusions, particularly in light of the trial judge’s comment that his “findings on the principled exception to some degree incorporate [his] findings on the [s.] 9(2) [application].” [86] Third, corroborative evidence can be “of assistance in establishing substantive reliability if it shows that [the] alternative explanations are unavailable”: Bradshaw , at para. 48. Ms. Simpson clearly admitted that the police did not share any details with her about what was found in the car nor the locations of such findings within the car. Therefore, considering the correspondence between what she told the police and what was found in the respondent’s car, it is difficult to determine how the corroborative evidence arising from the search did not meet the Bradshaw threshold. [87] In my view, absent the errors in the procedural and substantive reliability analysis, Ms. Simpson’s recanted statement would have been found admissible. (4) The Erroneous Exercise of Residual Discretion [88] Finally, the trial judge held that, even if he was wrong in his conclusion about threshold reliability, he would “nevertheless exercise [his] residual discretion to exclude the statement in order to maintain a fair trial.” [89] The appellant claims that the trial judge erred here as well because he went on, not to measure the probative value of the statement against its prejudicial effect, but instead to return to the concept of measuring the strength of the Crown’s case and then concluding that the evidence was simply unnecessary. As noted previously, in this part of his reasons, the trial judge said, “ The Crown case might be stronger if the hearsay statement was admitted for its truth, but the Crown hardly needs the statement to make out its ca se.” [90] For the reasons already articulated under the necessity analysis, the trial judge should not have entered this arena. The question to be resolved under the residual discretion prong was not whether the trial judge thought that the Crown had enough evidence to prove the elements of the offence, but whether the statement that formed the subject of the admissibility voir dire was probative of an issue in dispute (it was) and whether the prejudicial impact of admitting that statement outweighed its probative value. [91] As for the statement’s prejudicial impact, the respondent emphasizes that the trial judge was properly concerned with the fact that admitting the statement for the truth of its contents could lead to “an element of reasoning prejudice” because it would trigger the need for an unnecessarily complex jury instruction. [92] While I do not discount that the jury would have had to have been instructed on how to approach the statement had it been admitted for a hearsay purpose, the reality is that the jury already knew about the existence of the statement because of the s. 9(2) CEA ruling. Therefore, the jury already needed, and in fact had received, a decisive legal instruction about how to deal with the prior inconsistent statement they heard about during Ms. Simpson’s cross-examination by the trial Crown. That instruction required that the jury be told that the statement could be used solely for evaluating Ms. Simpson’s credibility and the weight the jury would give her evidence. [93] In contrast, had the statement been admitted for the truth of its contents, then the instruction would have changed to reflect the fact that it was also part of the substantive evidence left for the jury’s consideration while engaged in their fact-finding function. [94] While there is a significant legal difference between the instruction that the jury received, arising from the s. 9(2) cross-examination, and the instruction that the jury would have had to have received if the statement had gone the final distance and been admitted for the truth of its contents, there is little difference in the degree of complexity between those instructions. Both are well within the grasp of 12 intelligent members of the community to understand. [95] In my view, the trial judge erred by failing to come to grips with the necessary balancing exercise he was called upon to complete under his residual discretion: weighing the probative value of the statement against its prejudicial effect. [96] The probative value of the statement was high. It was the only evidence of an actual hand-to-hand exchange of cocaine for money. According to Ms. Simpson’s statement, she was an eyewitness to that transaction. [97] At one point during submissions, the defence counsel at trial described the statement as “highly toxic”. I do not agree. A more accurate descriptor is that the statement was “highly probative”. Just because evidence is highly probative, does not mean it is toxic or prejudicial in any sense. [98] By excluding Ms. Simpson’s hearsay statement, the truth-seeking function of the trial was undermined. By keeping that account from the jury’s consideration, the jury was left to deliberate only on Ms. Simpson’s exculpatory account of what went on in the car that day: a conversation between the respondent and the unknown male in the back seat. To return to Khelawon , at para. 2, and Bradshaw , at para. 22, having regard to the minimal dangers presented by the statement, its exclusion served to “impede accurate fact finding”. D. Conclusion [99] I am satisfied that the appellant has established that the erroneous ruling “might reasonably be thought … to have had a material bearing on the acquittal[s]”: R. v. Graveline , 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. [100] I would set aside the acquittals and order a new trial. Released:  “October 6, 2021 JMF” “Fairburn A.C.J.O.” “I agree. K. van Rensburg J.A.” “I agree Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Salvatore v. Tommasini, 2021 ONCA 691 DATE: 20211006 DOCKET: C68972 Benotto, Brown and Harvison Young JJ.A. BETWEEN Alberino Albert Salvatore, 2232465 Ontario Limited, and Sprint Mechanical Inc. Plaintiffs (Appellants) and David Tommasini, Anna Rucchetto, Four Seasons Aviation Ltd., and Sky Ship Capital Corp. Defendants (Respondents) Alan G. McConnell, for the appellants Stephen Dale Denis, for the respondents Heard: September 8, 2021 by video conference On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated December 9, 2020, with reasons reported at 2020 ONSC 7619. REASONS FOR DECISION INTRODUCTION [1] The appellants, Alberino Albert Salvatore, 2232465 Ontario Limited, and Sprint Mechanical Inc., appeal the order of the motion judge granting summary judgment dismissing their action against the respondents David Tommasini, Anna Rucchetto, Four Seasons Aviation Ltd., and Sky Ship Capital Corp. [2] The appellants and some of the respondents entered into a series of documents regarding the acquisition and operation of a helicopter: a June 24, 2016 Letter of Intent (the “LOI”); an LOI amending agreement dated July 15, 2016 (the “July Letter Agreement”); a September 14, 2016 Aircraft Management Agreement (the “AMA”); and a September 14, 2016 AMA amending agreement (the “September Letter Agreement”). [3] In the action, the appellants alleged that the agreements contained a binding obligation on the part of the respondents to pay for one-half of the acquisition cost of the helicopter (the “Buy-in Claim”). As well, the appellants alleged that the respondents breached other provisions in the documents causing damage to the appellants. [4] The motion judge granted summary judgment dismissing the action. The appellants appeal. At the hearing, we dismissed the appeal with reasons to follow. These are those reasons. THE MAIN GROUNDS OF APPEAL [5] The appellants advance two main grounds of appeal: (i) the motion judge erred in finding that the respondents were not subject to an enforceable promise to pay the appellant half of the acquisition cost of the helicopter; and (ii) the motion judge erred in dismissing the action in its entirety, instead of permitting some of the claims to proceed to trial. The Buy-in Claim [6] Article 14.13 of the AMA – the so-called “entire agreement clause” – provided, in part, that “[t]his Agreement and the matters referred to herein constitute the entire agreement between Owner and Operator regarding the subject matter hereof”. The clause went on to state that the AMA superseded and cancelled all prior agreements “with respect to or in connection with the subject matter of this Agreement”. [7] We accept the appellant’s submission that the motion judge erred in law by holding that art. 14.13 of the AMA expressly cancelled the LOI and July Letter Agreement. In reaching that conclusion, the motion judge failed to interpret art. 14.13 within the context of the entire AMA, contrary to the general principles of contract interpretation: Geoff R. Hall, Canadian Contractual Interpretation Law , 3rd ed. (Toronto: LexisNexis, 2016), §2.2.1. [8] One recital to the AMA specifically stated: AND WHEREAS the principals of the Operator, David Tommasini and Anna [Rucchetto], have agreed to acquire, and the principal of the Owner, Albert Salvatore, have agreed to convey, a direct or indirect 50% interest in the Owner, or the successor owner of the Aircraft, as the case may be (the “Buy-in”)…. [9] Accordingly, by its terms the AMA recognized the existence of a Buy-in arrangement amongst some of the parties outside of the four corners of the AMA. When art. 14.13 is read in that context, it is clear that the “subject matter” of the AMA dealt with the operation of the helicopter, not the Buy-in obligations that existed between the parties. [10] However, in our view that error in law was of no consequence. We see no reversible error in the motion judge’s conclusion, at paras. 21 and 22, that the LOI and July Letter Agreement lacked sufficient material facts to characterize them as legal contracts, especially given “ the absence of the fundamental business terms on which the co-ownership of the Sikorsky and the jointly owned business of the parties in operating the helicopter would be built”. [11] When the Buy-in and Owners Agreement sections of the LOI are read together, they provide: (i) the respondents agreed to pay 50% of the helicopter’s acquisition costs after one year, termed the “Buy-in Amount”; (ii) upon receipt of the Buy-in Amount, Albert Salvatore would convey to the respondents a one half-interest in the entity that owned the helicopter, termed the “Buyer”; (iii) while the legal form and structure of the ownership of the helicopter had not yet been settled, “the end result is that the ownership and operation of the Aircraft is to be as a separate stand-alone business, directly or indirectly owned and controlled by Albert and David/Anna, each as to 50%”; (iv) the LOI referred to the entity that owned the helicopter as the “Owner”; and (v) “Albert and David/Anna shall enter into a definitive agreement in respect of the Owner (which will be the form of a Partnership Agreement, Shareholders Agreement or some other form, depending on the final structure of the Aircraft ownership)”. [12] In other words, the LOI contemplated a “quid pro quo” under which the respondents would, after one year, pay 50% of the acquisition costs of the helicopter in return for which they would receive a one-half interest in the entity that ultimately owned the helicopter and operated the stand-alone helicopter business. The rights and obligations of those with an interest in the “Owner” were to be set out in a “definitive” Owners Agreement. [13] In his reasons, the motion judge observed, at para. 23, that “ [o]n its face, the LOI made any further business dealings with respect to the helicopter conditional on the negotiation of what it dubbed a ‘definitive agreement’ settling all material aspects of the ‘separate stand-alone business’ of owning and operating it.” In our view, that was an accurate interpretation of the LOI. [14] In the result, the parties never entered into an Owners Agreement. In the absence of such an agreement, there was no certainty about what bundle of ownership rights and obligations the respondents would receive or be subject to upon their payment of the Buy-in Amount. Put colloquially, the parties never agreed on the “quid” that the respondents would receive in return for their “quo” – namely, their payment of the Buy-in Amount. In those circumstances, we see no reversible error in the motion judge’s conclusion that there was no genuine issue requiring a trial with respect to the appellants’ Buy-in Claim and breach of the duty of good faith claim. The AMA and Internal Cost Claims [15] In their statement of claim, the appellants also alleged two other types of breach of contract. First, the appellants pleaded that the respondents failed to reimburse them for the respondents’ “costs associated with the importation, registration and adding the Helicopter to the Four Seasons’ AOC”: Statement of Claim, para. 31 (the “Internal Cost Claim”). Second, the appellants alleged that the respondents had breached certain provisions of the AMA, including one dealing with a short form lease: Statement of Claim, paras. 38, 41 and 47 (the “AMA Claims”). In para. 50 of their statement of claim, the appellants pleaded that, as a result of these breaches, they had suffered damages estimated at $225,000 in respect of costs of finding a replacement aircraft on a temporary basis and eventually a new hangar facility, pilot and maintenance for the helicopter, as well as “an estimated $300,000.00 in future lost profits from the Venture.” [16] In granting summary judgment, the motion judge dismissed the action in its entirety, including the AMA and Internal Cost Claims. However, the motion judge’s reasons did not address those claims. They should have. Nonetheless, that omission does not alter the result in this case. [17] This was a summary judgment motion. The respondents’ notice of motion clearly sought the dismissal of the entire action. In response to such a request for relief, the appellants were obliged to put their best foot forward. Yet, the appellants failed to adduce any evidence particularizing or supporting their pleaded AMA and Internal Cost Claims. [18] In his affidavit filed on behalf of the appellants, Mr. Ian Bergeron made the general statement that “[t]he refusal to pay the Buy-in was followed by further breaches of the agreement between the parties by the defendants, resulting in damages being suffered by the plaintiffs as detailed in the pleadings herein.” Mr. Bergeron did not specify the damages suffered or adduce any evidence to support or quantify such damages. As a result, there was no evidence before the motion judge that would have permitted him to conclude that there was a genuine issue requiring trial regarding any damages suffered by the appellants in respect of their AMA and Internal Cost Claims. Accordingly, we see no error in the motion judge’s dismissal of the action as a whole. DISPOSITION [19] For the reasons set out above, the appeal is dismissed. [20] In accordance with the agreement of the parties, the respondents are entitled to their partial indemnity costs of the appeal fixed in the amount of $43,663.20, inclusive of disbursements and applicable taxes. The parties have agreed that the appellants shall pay those costs of the appeal, together with the costs awarded below, on or before December 8, 2021. “M.L. Benotto J.A.” “David Brown J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Da Silva, 2021 ONCA 693 DATE: 20211006 DOCKET: M52666 (C69670) Miller J.A. (Motion Judge) BETWEEN Her Majesty the Queen Responding Party and Gabriel Da Silva Applicant Breana Vandebeek, for the applicant Michelle Campbell, for the responding party Heard: October 4, 2021 by video conference ENDORSEMENT [1] The applicant was convicted of sexual assault and failing to comply with a court order. He has received a custodial sentence of three years. [2] The complainant was a 70-year-old personal support worker who had attended at the applicant’s home to assist the applicant with physiotherapy exercises and showering. The applicant had been injured in a workplace accident. [3] In order to succeed on an application for bail pending appeal, the applicant must establish, per s. 679(3) of the Criminal Code , R.S.C. 1985, c. C-46, that: a) the appeal is not frivolous; b) the applicant will surrender himself into custody in accordance with the terms of the release order; and c) the applicant’s detention is not necessary in the public interest. The applicant has the burden of establishing that each criterion is satisfied on a balance of probabilities: R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19; R. v. Ruthowsky , 2018 ONCA 552, at para. 3. [4] The Crown contests the application on the first and third grounds, arguing that the appeal is borderline frivolous, and that detention is necessary in the public interest. [5] For the reasons that follow, I dismiss the application on the basis that the applicant has not established that his detention is not necessary in the public interest. Analysis [6] Establishing that detention is not necessary in the public interest turns on two considerations: public safety and public confidence in the administration of justice: Oland , at paras. 23, 26. Public safety and public confidence are not to be treated as separate silos: Oland , at para. 27. In this case, either public safety or public confidence considerations are sufficient to justify the applicant’s continued detention. A. Public Safety [7] Public safety justifies continued detention if the convicted individual is substantially likely to commit another offence or interfere with the administration of justice, and thereby endanger the safety of the public; and if detention is necessary for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737; R v. Stojanovski , 2020 ONCA 285 at para. 18; R v. T.S.D. , 2020 ONCA 733 at para. 47. [8] The applicant poses a sufficiently serious risk to public safety to justify his continued detention. He has a track record of failing to comply with court orders, notwithstanding that there were no incidents while he was on bail pending trial on these charges. The applicant’s charge for disobeying a court order arises out of a peace bond he entered for a previous sexual assault charge. There is a substantial likelihood that the applicant will commit another sexual crime or fail to abide by the terms of a release order, thereby endangering the safety of the public; continued detention is necessary in these circumstances. B. Public Confidence [9] Public confidence involves a balancing of the public interest in the reviewability of judgments against the public interest in enforcement. Factors to be considered are the strength of the grounds of appeal, the seriousness of the offences, the circumstances of their commission, and the sentence imposed: Oland , at paras. 24-25, 37-39. [10] The seriousness of the crime, particularly when the victim was vulnerable, plays an important role in assessing the strength of the enforceability interest: T.S.D. , at para. 52. The applicant has been convicted of a very serious offence: sexual assault of an elderly woman who was alone in his home in order to provide him personal care. It was a gross violation. It was not an aberration for the applicant, but the most violent and intrusive episode in a 30 year career of offending against the physical integrity of particularly vulnerable women. [11] These are factors weighing strongly in favour of immediate enforceability of the judgment. [12] With respect to the strength of the applicant’s appeal, the grounds of appeal – uneven scrutiny and misapprehension of evidence – do not clearly surpass the not frivolous standard, and therefore do not weigh strongly in favour of the reviewability interest. The trial judge convicted the applicant on the basis of factual findings for which the trial judge gave detailed reasons. The applicant is, for the most part, challenging findings on which the trial judge will be given the highest deference on appeal: R. v. C.L., 2018 ONCA 470, at para. 24. The claimed misapprehensions of evidence largely relate to inconsistencies in the complainant’s evidence. The trial judge, however, was alive to these inconsistencies – which he characterized as “minor” – and either reconciled them in his reasons or found them to be inconsequential. He found that the complainant was “at times confused” and her “reliability, that is, her accuracy on some points, was suspect.” Nevertheless, the trial judge found that her evidence on the core of the allegations – the sexual assault – was “consistent and reliable and I accept her evidence.” [13] The uneven scrutiny argument is, in general, a difficult ground on which to succeed: R. v. Jones , 2018 CarswellOnt 11703, at para 8. The trial judge gave reasons for believing the complainant’s evidence. He also gave reasons for disbelieving the applicant, whom he characterized as a “remarkably poor witness,” particularly inconsistencies between the applicant’s police statement and his evidence at trial as to the nature and extent of his disability at the time of the incident. The trial judge found that at trial the applicant was overstating the degree of his disability and did not believe him. Neither was the trial judge persuaded by the applicant’s evidence that it was the complainant who was the aggressor, and initiated sex with him in the hope that the applicant would reward her with a generous tip. The trial judge gave the lengthy and careful reasons for believing or not believing the witnesses at this trial. Given the trial judge’s approach to the evidence and the deferential standard of review, this ground of appeal does not clearly surpass the not frivolous standard. [14] At the hearing of this application, counsel for the applicant suggested that an ineffective assistance of counsel argument might also be raised in the future. In support, she provided an email exchange said to have taken place between the applicant and his counsel during trial, relating to whether the applicant should lead evidence as to his physical disability. [15] Whether the applicant actually chooses to pursue this ground of appeal in the future, he has not yet done so. The proffered email is not in evidence on this motion, and I do not consider this potential ground of appeal in the analysis of the present motion. [16] The reviewability interest is related to the strength of the grounds of appeal. I have already indicated that I believe these grounds to be extremely weak. I conclude that the public interest in the immediate enforcement of the applicant’s sentence outweighs the interest in releasing him pending an appeal of his conviction on the grounds stated, notwithstanding the absence of a flight risk. It is unlikely that the applicant will have fully served his sentence before the appeal is heard. The applicant can seek to have the appeal heard on an expedited basis. Conclusion [17] The application is dismissed. “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Knight v. Knight-Kerr, 2021 ONCA 686 DATE: 20211007 DOCKET: C69063 Feldman, Paciocco and Nordheimer JJ.A. BETWEEN Randal Allan Knight Applicant (Appellant) and Mary Lynne Isobel Louise Knight-Kerr Respondent (Respondent) Lorrie Stojni-Kassik and Emily F. Metcalfe, for the appellant Mary Lynne Isobel Louise Knight-Kerr, acting in person Heard: September 2, 2021 by video conference On appeal from the order of Justice Russell M. Raikes of the Superior Court of Justice, dated January 4, 2021, with reasons reported at 2021 ONSC 55. Feldman J.A.: A. Background [1] The parties married on March 14, 2009, after signing a domestic contract, the “Family Agreement”, that the wife prepared. Neither party had the assistance of a lawyer. They separated in July 2017. [2] The wife brought the original matrimonial home into the marriage. The parties lived in that home for a few years, then sold it and purchased a second home, where they lived at the date of separation. The Family Agreement contains the following provision regarding the treatment of the matrimonial home on marriage break-up: Louise will receive the first $45,000 (repayment of the original house deposit). This continues forward should they move to another location. Randy and Louise shall benefit equally from the remainder of house profits. [3] In this action to determine equalization of net family property (“NFP”), the husband denied that he had signed the Family Agreement and claimed that the wife forged his signature. That claim was rejected by the trial judge. The other issue that took significant time at trial was custody of the family dog, which was awarded to the husband. Neither of those findings is challenged on the appeal. [4] The sole issue raised by the husband on the appeal is the calculation of the NFP in respect of the treatment of the two homes, and the interpretation and application of the Family Agreement provision regarding the $45,000. B. The Trial Judge’s Decision [5] The trial judge found that the husband did sign the Family Agreement, and that it was a valid and binding domestic contract. The trial judge then dealt with equalization, including the wife’s entitlement to the $45,000 pursuant to the Family Agreement. He did so by reference to the form of the NFP statement and what should be included in each Part of the form. [6] With respect to the value of assets owned on the valuation date, under “Part 4(a): Land”, the trial judge found that the second home, known as the Jackson property, was purchased in 2012 for $250,000 and sold in 2018 for $572,000. At paras. 87-88, he stated: [87]    The first $45,000 should be deducted pursuant to the terms of the Family Agreement. Those funds belong to the Respondent [wife] and come off the top of the sale proceeds. The net amount is $527,000. That amount is divided equally: $263,500 each. [88]    For equalization purposes, Part 4(a) should show the following: Applicant [husband] $263,500, Respondent [wife] $308,500. In order to ensure that the $45,000 is neutral and not counted in her net family property, a corresponding exclusion is necessary in Part 7 (see below) pursuant to s. 4(2) item 6 of the Family Law Act . [7] In other words, because the parties agreed that the wife was entitled to $45,000 more than the husband out of the valuation-date value of the matrimonial home, his share of the value of the Jackson property is $263,500, while hers is $308,500. At the same time, the $45,000 is shown as an exclusion from the wife’s NFP because, pursuant to the Family Agreement, the $45,000 deposit belongs exclusively to her and is not shared with the husband. The wife receives that amount over and above any equalization payment. That is the correct way to account for an exclusion on an NFP statement. [8] The next relevant section of the NFP form is “Part 6: Property, Debts, and Other Liabilities on Date of Marriage”. On the wife’s side of the ledger, the trial judge included the value of the first home, known as the Kroeger property, of $250,000, and deducted the mortgage of $157,715, noting there was no dispute regarding these figures. He thereby included the full amount of the equity in the Kroeger property at the date of marriage, namely $92,285, as a deduction on the wife’s side of the ledger. [9] The last part of the NFP form is “Part 7: Value of Property Excluded under Subs. 4(2) of ‘Family Law Act’”. With respect to exclusions, the trial judge stated: The Family Agreement applies at this stage. First, the Respondent [wife] is entitled to exclude $45,000 representing her deposit from the Kroeger Crescent home. [10] By applying the inclusions, deductions, and the exclusion as part of the overall calculation, the trial judge found that the husband owed the wife an equalization payment of $43,547. He concluded, at para. 149, that from the sale proceeds of the Jackson property that were (and still are) being held in trust: Based on my findings above, the Respondent [wife] is entitled to $45,000 from the sale of the home per the Family Agreement less $19,000 already received ($26,000), $43,547 for equalization, and prejudgment interest on both amounts. Those amounts should be paid to her from funds held in trust. The balance of any monies held in trust, regardless where and by whom held, should be divided equally between the parties. [11] The trial judge added at the conclusion of his reasons that, if there was an arithmetic error, the parties should notify the trial coordinator to schedule a remote hearing with the trial judge to deal with it. C. Issue [12] The appellant’s position on this appeal is that the trial judge erred in his approach to the equalization payment by double counting the respondent wife’s $45,000 deposit in the Kroeger property. Specifically, he argues that the trial judge gave the wife the benefit of the $45,000 both as part of the equity she brought into the marriage that entitled her to a marriage-date deduction, and then again in satisfaction of the Family Agreement, and possibly yet again in the overall effect of the final order. He submits this constituted an error by the trial judge in interpreting the Family Agreement and/or in applying it to the equalization of net family properties under the Family Law Act , R.S.O. 1990, c. F.3 (the “ FLA ”). D. Analysis [13] The Family Agreement must be interpreted in the legislative context of Part I of the FLA , which deals with family property on marriage breakdown. (1) Division of Family Property under the FLA [14] Under s. 4(1) of the FLA , “net family property” is defined as: the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting, (a)     the spouse’s debts and other liabilities, and (b)     the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of marriage. [15] Section 5(1) then provides that on marriage breakdown, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. This is also referred to as the “equalization” of net family properties. [16] The matrimonial home is given special treatment under the FLA in the calculation of net family property. In accordance with the definition of “net family property” in s. 4(1)(b), while a spouse can ordinarily deduct the value of property that they brought into the marriage in calculating the NFP, deductions connected to the matrimonial home are not allowed. [17] Section 18 defines the matrimonial home as: 18(1)  Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. [18] The effect of these sections, read together, is that where a person brings a property into the marriage that becomes and remains the couple’s matrimonial home on the date of separation, the spouse who brought the property into the marriage may not deduct the marriage-date value of that property from their net family property to be equalized. But if the original property is no longer a matrimonial home within the definition in s. 18 at the date of separation – for example, if it was sold during the marriage – then the value of the original property on the date of marriage is a deduction for the spouse who brought it into the marriage. [19] However, s. 2(10) of the FLA allows the parties to agree to different arrangements, subject to ss. 52(1) and (2), by entering into a marriage contract. [20] In this case, by their Family Agreement, the parties agreed to specific treatment of $45,000 representing the deposit that the wife paid to purchase the Kroeger property, which became the parties’ matrimonial home. The Family Agreement specified that the wife would preserve her entitlement to this $45,000 from the sale proceeds of whatever home they were living in in the event of marriage breakdown, whether the parties still lived in the Kroeger property or had moved to another home. (2) Application to this Case [21] The issue raised by the appellant husband is whether the trial judge erred in his interpretation of the Family Agreement and/or in applying it to the equalization of net family properties under the FLA . [22] The trial judge did not discuss the possible interpretations of the $45,000 provision of the Family Agreement in his reasons. The wife was unrepresented at trial. The NFP statement filed by the husband was based on his main position that he had not signed the Family Agreement, and therefore he did not include any treatment of the $45,000 in his NFP. During closing submissions, counsel for the husband (not appeal counsel) and the trial judge had a brief colloquy regarding the treatment of the $45,000 in the event he found that the husband had in fact signed the Family Agreement, but there was no detailed discussion of alternative treatments to take into account the combined effect of the Family Agreement and the FLA . [23] In order to give effect to the Family Agreement, the trial judge treated the first $45,000 of the proceeds of sale of the Jackson property as an exclusion from the wife’s net family property under s. 4(2), and ordered that $45,000 be paid to the wife out of those proceeds. Item 6 of s. 4(2) provides: 4(2)    The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property: 6.       Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property. [24] I see no error in the trial judge’s approach to the treatment of the $45,000 as agreed by the parties. The proceeds of the Jackson property were jointly owned on the valuation date and the Family Agreement provides that $45,000 of the proceeds of the sale are to be treated as belonging to the wife. The FLA provides that that amount is an exclusion from her net family property. [25] Because the parties had sold the Kroeger property, it was no longer their matrimonial home at the date of separation, and therefore its marriage date value was deductible by the wife. However, the trial judge allowed the wife to deduct the full marriage-date value of the Kroeger property in the amount of $92,285, which included the value of the $45,000 deposit. In other words, he allowed an excluded property (the $45,000 deposit) to also be deducted. This was an error because the same property cannot be both an exclusion and a marriage-date deduction. The effect of this error was to double count the $45,000 in the wife’s favour. [26] The appellant has argued, in the alternative, that the trial judge’s error was allowing the wife any deduction for her equity in the Kroeger property. He says the Family Agreement should be interpreted to mean that, while under the FLA the wife would have been entitled to deduct her entire date of marriage equity in the first home as it was no longer the matrimonial home at the valuation date, the effect of the Family Agreement was that she gave up that benefit. [27] I would not give effect to this argument. While it represents one possible interpretation of the agreement, other reasonable interpretations are that the word “profits” in the clause “benefit equally from the remainder of the house profits” refers to proceeds of the sale of the house over and above the existing equity, or it could be referring only to profits in a subsequent house if they bought one. In addition, there is no language in the Family Agreement that suggests that the parties intended to contract out of the FLA other than preserving for the wife her original deposit of $45,000 on the Kroeger property. [28] In my view, the only error made by the trial judge occurred at the intersection of the effect of the contract and the operation of the net family property provisions of the FLA . That is, having correctly characterized the agreement between the parties as an agreement to exclude the wife’s $45,000, when considering the appropriate amount to include as the wife’s marriage-date deduction, it was necessary not to again count the same $45,000 deposit that was part of the value of the Kroeger property. [29] I would allow the appeal to the extent that I would subtract $45,000 from the wife’s date of marriage deduction of $92,285, representing her equity in the Kroeger property, and then recalculate the equalization payment owed by the husband to the wife. [30] The result is that instead of owing the wife an equalization payment of $43,547, the husband owes the wife an equalization payment of $38,924. E. Conclusion [31] I would change para. 4 of the order dated January 4, 2021, to read as follows: 4.       The Applicant, Randal Allan Knight, shall pay to the Respondent $38,924 for equalization. [32] I would dismiss the rest of the appeal, leaving the remainder of the order in full force and effect. [33] The husband’s success on the appeal has been extremely limited: he has succeeded in reducing his payment to the respondent by $4,623 in total. In addition, the husband could have avoided the appeal process by accepting the invitation of the trial judge to bring any arithmetic errors to his attention for correction. I would therefore not make any order for the costs of the appeal. Released: October 7, 2021 “K.F.” “K. Feldman J.A.” “I agree. David M. Paciocco J.A.” “I agree. I.V.B. N ordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Davies, 2021 ONCA 695 DATE: 20211007 DOCKET: C69192 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Colton Davies Appellant Jessica Zita, for the appellant Kristen Pollock, for the respondent Heard and released orally: October 5, 2021 by video conference On appeal from the sentence imposed by Justice Amanda J. Camara of the Ontario Court of Justice on December 4, 2020. REASONS FOR DECISION [1] The appellant pleaded guilty to 14 offences committed over a 9-month period, ranging from possession of property over $5,000 (namely stolen motor vehicles), to operating those vehicles while prohibited, to failing to stop for the police, to drug trafficking and firearm offences. [2] He entered guilty pleas knowing that, together, the provincial and federal Crowns would request a total sentence of 46 months less time served. On his behalf, duty counsel requested a sentence of 30 months. [3] The appellant was sentenced immediately following the conclusion of submissions. He received a global sentence of 46 months less 672 days of presentence custody, leaving a remainder of 708 days to serve. [4] The appellant argues that the sentencing judge erred in arriving upon this sentence. [5] First, he argues that the sentencing judge failed to take into account certain mitigating factors. In oral submissions, the appellant has focused upon what is described as a failure to provide sufficient mitigation arising from the appellant’s guilty pleas. We do not agree. The sentencing judge specifically acknowledged the guilty pleas as a factor in mitigation. There is no specific mathematical formula that applies to mitigation arising from a guilty plea and there is nothing to suggest that the guilty pleas were not taken into account when arriving upon the ultimate sentence. Further, in light of the seriousness of the offences and the appellant’s lengthy criminal record, the Crown position on sentence clearly took the guilty pleas into account. [6] Although not advanced in oral submissions, the appellant also contends that the sentence was not properly individualized. This submission seems to be related to what is said to be a decision by the trial judge not to make an order for counselling. As no submissions were made or evidence led as to what counselling would have been appropriate, this ground of appeal is without support. [7] Third, the appellant argues that the reasons for sentence are insufficient. We do not agree. The reasons, which were delivered in the immediate wake of submissions, must be read within that wider context. They adequately explain the decision arrived upon and are amenable to review. [8] Leave to appeal from sentence is granted, but the appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.5 (1)     Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. (2)     On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice. (2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). (3)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. (4)     An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. (5)     An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. (6)     The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. (7)     In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant. (8)     An order may be subject to any conditions that the judge or justice thinks fit. (9)     Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19 486.6 (1)  Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s.  15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gregson, 2021 ONCA 685 DATE: 20211007 DOCKET: C55241 & C62290 Watt, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Kevin Gregson Appellant Michael Lacy and Bryan Badali, for the appellant Alexander Alvaro, for the respondent Heard: May 18, 2021 by video conference On appeal from the conviction entered and the sentence imposed on March 13, 2012 by Justice Douglas J.A. Rutherford of the Superior Court of Justice. Harvison Young J.A. : [1] The appellant Kevin Gregson was convicted of the first degree murder of a police officer and robbery. The sole issue on appeal is whether this court should quash the convictions and order a new trial on the basis that his counsel at trial, Craig Fleming, breached the duty of loyalty owed to his client. In essence, the appellant argues that Mr. Fleming was acting as amicus curiae rather than as defence counsel acting in the interests of the appellant, that he undermined the appellant’s defence, and that his conduct effectively deprived the appellant of counsel at trial. The appellant points to a number of instances that illustrate this. The appellant argues that Mr. Fleming’s conduct prior to the trial went beyond mere ineffective assistance of counsel and, for that reason, the appellant does not have to show that Mr. Fleming’s conduct could have affected the verdict in the case. [2] For the following reasons, I would dismiss the appeal. While a number of Mr. Fleming’s actions were misguided and inadvisable, Mr. Fleming cannot be said to have breached his duty of loyalty to his client according to the applicable law. At its highest, this may have been a case of ineffective assistance of counsel. However, an appeal based on ineffective assistance could not have succeeded because Mr. Fleming’s actions cannot be said to have had any effect on the verdict. A. Background facts (1) The Offence [3] It is common ground that the appellant is guilty of at least manslaughter. It is also common ground that he was a difficult client. As will be discussed below, Mr. Fleming agreed to take on the case after the trial judge acceded to the appellant’s former lawyer’s request to be removed from the record a few weeks before the start of the trial. [4] There is no doubt about what happened on the night of December 28, 2009 and the early morning hours of December 29, 2009. Mr. Gregson’s life had been coming apart. A few years earlier, he had been suspended with pay from his job as an RCMP officer as a result of a number of incidents. In November 2009, the final decision was that the appellant either resign or be discharged, and the appellant learned that his pay had stopped and that he had been overpaid for a few months and owed money to the RCMP, so financial concerns were added to his stressors. In early December, the discharge order came into effect. He had been preoccupied, even obsessed, with getting his job back. He had also been accused of sexual assault on December 28. This distressed him even more as he believed that this accusation would ruin his reputation and any chance he had of clearing himself with the RCMP. [5] According to the appellant, in the evening of December 28, he decided to kill himself, so he cut his own throat, passed out, and then woke up. After that, he decided to steal a car, find a police officer, take their gun, and go home and shoot himself. He obtained a car by threatening a young couple with what appeared to be a gun. After driving around and not finding a police officer, he went home, had a snack, washed his clothes, and then decided to go to the Ottawa Civic Hospital where he knew there were often police cars and officers. He was wearing two bulletproof vests and carried handcuffs, a BB gun, and two knives. His evidence at trial was that he did not want to die when he confronted a police officer as he wanted to be able to die in his “sweet spot” on his couch at home. [6] Constable Czapnik was in his squad car doing paperwork outside the Ottawa Civic Hospital at around 4:30 a.m. on December 29. Four paramedics saw a vehicle pull up and Mr. Gregson get out of the car and approach the police car with something in his hand. Constable Czapnik exited his vehicle and an altercation ensued. The paramedics rushed to help and saw the appellant straddling the officer with his right hand “going up and down”, making short, little punches. One of the paramedics pulled the appellant off the officer and the appellant’s arm came up holding a knife. Another paramedic managed to stomp or kick the knife out of Mr. Gregson’s hand. Despite immediate medical assistance, the officer succumbed to his injuries a short time later. He had suffered a number of wounds, including lacerations that cut his left-side jugular vein, vagus nerve, and carotid artery. [7] According to the appellant’s evidence at trial, when he got to the hospital and saw a police car, he approached, pointed his BB gun, opened his door, and told Constable Czapnik to “get out.” The appellant then ordered him to get on his knees and to put his hands up. Constable Czapnik complied initially but then attempted to pull his gun from his holster, at which point the appellant threw down his gun, jumped on him, and tried to get his gun. The officer punched the appellant in the head, and the appellant “just reacted” and stated that “I stabbed him because he hit me in the head and I reacted.” The appellant said he remembered stabbing the officer only twice, although the officer received more than two stab injuries. He attributed his reaction to “training” and “instinct”, stating that he did not intend to kill the officer. [8] The appellant was arrested at the scene. He was eager to talk and made several spontaneous statements, including “I’m the one who car jacked two people earlier today”, and “I came here looking for a fight. You city cops are tough.” He told one paramedic that he had tried to cut his own jugular veins earlier that day but they had clotted too quickly, and stated to another that “[i]t didn’t have to end this way, all he had to do was give me his gun.” When a nurse at the hospital asked if he knew why he was there, he said “[b]ecause I killed a cop.” [9] The appellant spoke to counsel while at the hospital and again at the police station. While he was in the cells at the police station, he asked whether the incident had been in the news and what the maximum penalty was for manslaughter. In a videotaped police interview on December 29, 2009, he told officers that he had hydrocephalus and “colloid cysts” which made him more “aggressive”. While he admitted to killing the officer, he was not prepared to call it murder. In short, the only issue for trial was mens rea and whether there was any basis for an argument of diminished capacity. [10] Three forensic psychiatric assessments were completed for the appellant in 2010-2011 after the incident. None found a basis for a defence of not criminally responsible due to mental disorder. The appellant’s defence counsel obtained one of these assessments from Dr. Bradford, dated September 10, 2011. Dr. Bradford concluded that the appellant was not psychotic prior to, during, or subsequent to the incident, and the conditions he suffered from would not affect his ability to appreciate the nature and quality of his actions or that they were wrong. Dr. Bradford did however also conclude that the appellant suffered from colloid cysts and that they caused persistent personality disturbance and could have had other psychiatric manifestations. After reviewing Dr. Bradford’s 2011 report, Dr. Sinclair, the appellant’s treating neurosurgeon, rejected Dr. Bradford’s diagnosis of colloid cysts based on the appellant’s brain imaging studies and stated that Dr. Bradford’s contention that the appellant’s personality abnormalities were related to colloid cysts was not plausible. An expert in diagnostic neuroradiology called by the Crown, Dr. Kingstone, also testified at trial that the appellant did not have colloid cysts. [11] The appellant did have an episode of hydrocephalus in 2006, as a result of which a shunt was surgically inserted to drain the fluid from his brain. Dr. Sinclair testified at the trial, opining that the appellant had atypical type 3 perivascular spaces in his brain, also called Virchow-Robin spaces, but that the appellant’s medical condition would not have impaired his ability to think clearly or make decisions on December 29, 2009. [12] The defence did not call Dr. Bradford at trial, having concluded that his opinions were not favourable to the appellant. It is clear that there was no expert evidence that could have supported an NCR defence, and that no diminished capacity defence could have succeeded. The reports also diagnosed narcissistic personality disorder with antisocial features. While this would not have supported a diminished capacity defence, it does tend to confirm what was already clear from the record: the appellant was a difficult person and client, and thought he knew best. (2) Mr. Fleming’s conduct [13] The appellant introduces fresh evidence on appeal with the consent of the respondent. This fresh evidence outlines the allegedly objectionable aspects of Mr. Fleming’s conduct, prior to the trial proper, that the appellant relies on to demonstrate a breach of the duty of loyalty. At the time that Mr. Fleming was retained by the appellant, he was a staff lawyer working for Legal Aid Ontario (“LAO”). After the appellant’s former lawyer had been removed from the record, it was difficult to find a lawyer willing to take the case at such short notice, and LAO proposed that one of their staff, Mr. Fleming, could represent the appellant and take the trial without much delay. [14] Mr. Fleming’s unusual conduct in the course of this case forms the basis for the appellant’s breach of loyalty claim, and four particular instances will be discussed further below. Some points on the chronology of events leading up to the trial will place Mr. Fleming’s conduct in context and highlight the particular conduct that the appellant points to: · October 17, 2011: The appellant’s former counsel sought to be removed and was removed from the record due to a violent outburst from the appellant. Prior to this, the appellant’s counsel and Crown had reached a substantial level of agreement on possible evidentiary issues to be addressed in the course of pre-trial motions. · October 26, 2011: Before the court, the Crown brought up the status of agreements regarding the resolution of pre-trial motions. Mr. Gregson said no agreements were reached on pre-trial motions. Mr. Gregson also said he was willing to have an LAO practitioner assigned, saying “[l]et’s just have Mr. Fleming.” · October 29, 2011: Mr. Fleming met with Mr. Gregson for the first time. · November 1, 2011: Mr. Fleming was formally placed on the record as counsel for the appellant. The appellant now apparently consented to the admissibility of almost all controversial evidence. In the following weeks, Mr. Fleming drafted written instructions for Mr. Gregson to sign. · December 16, 2011: Mr. Fleming sent the appellant’s draft instructions to the Crown for review. · January 18, 2012: The appellant suddenly reversed his instructions and wanted to contest everything he previously consented to. He wanted to “wage war” with the Crown. Mr. Fleming wrote to the Crown about Mr. Gregson’s “significant volte-face” the next day, saying “I cannot allow any failure to respect his instructions to open an appeal door.” · January 20, 2012: Mr. Fleming wrote to Dr. Bradford seeking an additional opinion on diminished capacity and non-insane automatism as a result of the appellant’s change in instructions. · January 26, 2012: During an appearance at court, it was revealed that the appellant reversed his instructions again, now conceding everything except the voluntariness and admissibility of his videotaped confession. Mr. Fleming and Crown counsel went through the proposed agreements and admissions. Mr. Fleming then consulted Mr. Gregson, and the appellant did not object to the positions discussed by counsel. · January 27, 2012: Mr. Fleming wrote to Dr. Bradford seeking an additional opinion on operating mind. In his letter, Mr. Fleming stated that “[i]t would be of great assistance to be able to provide Mr. Gregson with your conclusive explanation that he had an ‘operating mind’”. · February 7, 2012: Mr. Fleming wrote an email to the Crown regarding operating mind and voluntariness, stating that he was “quite openly ‘passing the buck’ to Mr. Justice Rutherford to provide a decision, so that the Court of Appeal cannot criticize my failure to do so, by awarding Gregson a new kick… based on my alleged incompetence, or his obstinacy.” · February 8-9, 2012: The evidence for the voir dire on the voluntariness of the videotaped confession was heard. · February 13, 2012: Mr. Fleming wrote to the Crown asking to speak with Dr. Sinclair in the presence of Crown counsel. Mr. Fleming mentioned consulting with a neurologist who suggested that atypical type 3 Virchow-Robin spaces could result in symptomatic problems of a psychological order. Mr. Fleming needed “that comfort of Dr. Sinclair being able to say clearly that he did not observe any such psychological deficits in Mr. Gregson” and “the comfort … that Dr. Sinclair had in fact turned his mind to the rare diagnostic possibility of psychological trauma, and had specifically discounted this”. Mr. Fleming expressed his belief that “Dr. Sinclair is best-positioned and well-qualified to ‘close this particular door’”. Mr. Fleming also said “[f]inally, my aim is to make sure this trial does not take any longer than necessary.” Mr. Fleming noted that he did not anticipate that he would receive any supporting expert opinions for diminished capacity or automatism and that he would likely be unable to make these arguments. · February 15, 2012: Mr. Fleming sent a draft factum on voluntariness to the Crown and suggested that he “go first and concede admissibility of all, to avert possible problems with Mr. Gregson.” · February 21, 2012: Counsel provided submissions on voluntariness, and the confession was declared to be admissible. · February 27, 2012: The trial proper began with jury selection. · March 13, 2012: The jury returned guilty verdicts for first degree murder and robbery. (3) Investigation after trial [15] A limited s. 684 appointment under the Criminal Code , R.S.C. 1985, c. C-46, was made to determine whether there was merit to an appeal of the murder conviction and whether an application should be made for a full s. 684 appointment. Ms. Apple Newton-Smith, then Mr. Gregson’s appellate counsel, reviewed the trial record and, in March 2015, communicated to Mr. Fleming that there were concerns with respect to his representation of the appellant and the appearance that he was not advocating for the appellant’s interests. She referred to some of the appellant’s correspondence with the Crown and Dr. Bradford and Mr. Fleming’s factum on voluntariness. In the fresh evidence before this court, there is a summary of Mr. Fleming’s responses explaining his conduct and his work on the case. [16] LAO engaged Mr. Philip Campbell to advise on whether effective and ethical legal services were provided to the appellant by Mr. Fleming. In a report dated October 28, 2015, Mr. Campbell provided a thorough review of the circumstances of the case, the impugned conduct and correspondence, and Mr. Fleming’s explanations. Mr. Campbell believed that “there is no reasonable possibility that an allegation of [ineffective assistance of counsel], in its usual form, could succeed on an appeal by Mr. Gregson .” However, Mr. Campbell also observed that an accused is entitled to a lawyer who is loyal to the interests of the accused and if the appellant could establish that Mr. Fleming was indifferent to or actively advocating against his interests, there would be a miscarriage of justice, even if it could not be established that a lawyer vigorously defending his interests could have achieved a different result. [17] After Mr. Campbell’s report, it came to light that Mr. Fleming had lied about being an RCMP officer when he first met the appellant. He had also lied when he explained his February 13, 2012 letter to the Crown in response to Ms. Newton-Smith’s concerns. He had said that he had consulted his daughter, who was a neurosurgeon. It turned out that Mr. Fleming does not have a daughter. Mr. Fleming was cross-examined by appellate counsel in 2019 on his conduct of the trial. He has retired since the trial. He now suffers from cognitive deficits, as a result of which his memory of the events is extremely limited. B. Issues on appeal [18] The appellant claims that Mr. Fleming “did not act with undivided loyalty” such that the appellant did not have a lawyer looking after his interests. He insists that this is not a claim of ineffective assistance of counsel in the ordinary sense, but a claim of denial of counsel altogether. He compares this case to R. v. Al-Enzi , 2014 ONCA 569, 121 O.R. (3d) 583, where this court held that a trial judge’s denial of a severance or mistrial produced a miscarriage of justice for Mr. Al-Enzi, whose counsel withdrew in the middle of trial, because while an amicus was appointed an amicus was not an adequate substitute for defence counsel. The appellant asserts that Mr. Fleming viewed himself as amicus and Mr. Fleming’s conduct similarly deprived him of counsel, implicated the integrity of the administration of justice, compromised the appearance of fairness, and resulted in a miscarriage of justice. He argues that the verdict cannot be allowed to stand regardless of the strength of the Crown’s case, the absence of prejudice, or the inevitability of the verdict. [19] The appellant points to four particular instances which he says illustrate a breach of Mr. Fleming’s duty to his client: 1. Mr. Fleming lied to gain the appellant’s trust so that the appellant would retain him; 2. Mr. Fleming represented to the appellant that he would contest the voluntariness of certain admissions and statements, but he knew and communicated to Crown counsel that this argument would not succeed without advising the appellant about the legal merits; 3. Mr. Fleming misunderstood his role and improperly shared defence trial strategy and the weaknesses of defence arguments with Crown counsel; and 4. Mr. Fleming lied about having consulted with his own expert with respect to diminished capacity, which was the one possible defence the appellant might have had at trial. [20] The respondent takes the position that, whatever Mr. Fleming’s failings as counsel, he was not motivated by a desire to “sell out” his client and acted at all times with his best interests in mind, even if some of his actions were inadvisable or misguided. The record, including the fresh evidence filed on this appeal, indicates that Mr. Fleming was doing his best for Mr. Gregson in very difficult circumstances. C. Discussion (1) The duty of loyalty [21] Despite the appellant’s broad framing of the appeal as a general miscarriage of justice issue, properly understood, the appellant’s argument is that Mr. Fleming breached his duty of loyalty to the appellant. [22] The duty of loyalty owed by a lawyer to their client is undoubtedly a foundational principle in the adversarial system. As explained in R. v. Neil , 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 12, “[u]nless a litigant is assured of the undivided loyalty of the lawyer, neither the public nor the litigant will have confidence that the legal system, which may appear to them to be a hostile and hideously complicated environment, is a reliable and trustworthy means of resolving their disputes and controversies.” The principle of the duty of loyalty endures because it is essential to the integrity of the administration of justice: at para. 12. It consists of several dimensions, including a duty not to disclose confidential information, a duty to avoid conflicting interests, a duty of commitment to the client’s cause or zealous representation, and a duty of candour with the client on matters relevant to the retainer: at paras. 18-19. [23] That said, the duty is not unlimited. Lord Reid’s remarks in Rondel v. Worsley , [1969] 1 A.C. 191 (U.K. H.L.), at pp. 227-28, accepted by this court in R. v. Samra (1998), 129 C.C.C. (3d) 144 (C.A.), at para. 64, illustrate this point: Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests . Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him. [Emphasis added.] [24] Allan C. Hutchinson, in his textbook Legal Ethics and Professional Responsibility , 2nd ed. (Toronto: Irwin Law, 2006), at pp. 106-7, similarly explains that there are limits to lawyers’ obligations to place their clients’ interests ahead of all others. One of the primary constraints is a lawyer’s duty to the courts. [25] It is also useful to remember that the concepts of ineffective assistance and disloyalty cannot be conflated. A breach of the duty of loyalty does not occur whenever a client’s interests are damaged by a lawyer’s actions. A lawyer acting with intent to further a client’s interests sometimes can, by incompetence, damage those interests. Such a lawyer has not breached the duty of loyalty. Otherwise, every incompetent act would be an act of disloyalty. [26] The existing test for whether there has been a breach of loyalty owed by a lawyer to their client, when raised for the first time on appeal, may be stated as follows. First, there must have been an actual conflict of interest between the respective interests represented by counsel and, second, as a result of that conflict, there must have been some impairment of counsel’s ability to represent the interests of the appellant: R. v. W.(W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 237; Neil , at para. 39; and R. v. Silvini (1991), 68 C.C.C. (3d) 251 (Ont. C.A.), at pp. 258-59. [27] As the Supreme Court accepted in Neil , a conflict is a “substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person”: at para. 31. Where the allegation of a conflict of interest is raised for the first time on appeal, the court must be concerned with actual conflicts of interest, not just potential or possible conflicts, and whether counsel’s representation was in fact compromised in such a way as to result in a miscarriage of justice: W.(W.) , at pp. 238-39. [28] This court noted in Samra that the problem of conflict of interest has usually arisen because counsel has been retained to act for a client opposed in interest to the former client: at para. 19. In the context of joint representation of co-accused, an actual conflict exists when a course of conduct dictated by the best interest of one accused would, if followed, be inconsistent with the best interests of the co-accused: W.(W.) , at p. 239. [29] In Samra , the appellant alleged that a miscarriage of justice had occurred when the appointed amicus , who had formerly been the appellant’s defence counsel for the same matter, had disclosed confidential information when he clarified something the appellant’s new counsel had said. This court noted that this was the only time an actual conflict of interest might have arisen and where possibly confidential information was disclosed, but even so, there was no adverse effect on the appellant’s defence as a result of that conflict. As such, while it was not necessary to decide whether an actual conflict existed, this court doubted, at para. 63, that there was a conflict: It is not unusual that counsel may find themselves in a conflict between their duty to the client and their duty to the court. It has never been suggested that when such a conflict arises counsel is always disqualified from continuing to act in the case. [30] If the two-part test is satisfied, the court may order a new trial: Neil , at para. 40. (2) Did Mr. Fleming breach his duty of loyalty to the appellant? [31] In my view, Mr. Fleming did not breach his duty of loyalty to the appellant. At the outset, it is important to emphasize the circumstances that form the context of Mr. Fleming’s actions. Mr. Fleming, a staff lawyer for LAO, agreed to represent an accused on the eve of trial in a notorious murder of a police officer. The Crown case was strong. The only, and faint, hope was that some aspect of diminished capacity could result in a verdict of manslaughter. The accused was not likely to be (and was not in fact) a sympathetic witness; he insisted on testifying, and it would have been obvious that he would not be helping his cause. Mr. Fleming was in an unenviable position. [32] That said, Mr. Fleming was not in a position of conflict. While he clearly understood that his obligation to his client had to be tempered by his duty to the administration of justice and he made some decisions which were not advisable, these cannot be understood as arising from any conflicting loyalty. The appellant points to Mr. Fleming’s statements and conduct and asks this court to infer that Mr. Fleming believed he was a friend to the court and was preoccupied with trial expediency, saving LAO the expense of another lawyer, and avoiding an appeal. While Mr. Fleming may have been concerned with some of these considerations, he was not, however, placed in a position where he had to choose between the appellant’s best interests and his own best interests or the best interests of some other entity or client. Nor did he make any choices that preferred other interests over the appellant’s interests as a result of a conflict of interest. There were no actual conflicts that impaired Mr. Fleming’s representation of the appellant. This becomes apparent when considering the examples the appellant relies on as breaches of the lawyer’s duty of loyalty. [33] The first basis relied on by the appellant as illustrating divided loyalty is what he refers to as the “foundational lie”. When he first met with the appellant, Mr. Fleming told him that he had been a member of the RCMP and that he had killed two people in the course of duty. As the fresh evidence indicates, this was not true. Mr. Fleming was never a member of the RCMP. In his affidavit, the appellant states that this contributed to his confidence in Mr. Fleming as they shared an experience. For reasons that are difficult to understand, Mr. Fleming had previously told his former law partner the same fabrication. Whatever motivated Mr. Fleming to tell this story, the fact that it was not a fabrication communicated only to the appellant tends to undermine any suggestion that it can be explained by divided loyalties on the part of Mr. Fleming. [34] Obviously, the fabrication of one’s biographical details in any situation is unethical and should not be condoned. This lie, however, was not “foundational” and cannot be understood to have essentially undermined the entire relationship as the appellant argues. [35] While the appellant says that the lie helped him feel comfortable with Mr. Fleming, he does not say that he would not otherwise have retained him. [36] Moreover, according to the law in Canada as set out above, even if such a lie were “foundational” to the relationship it would not constitute a breach of loyalty unless it was occasioned by a conflict and it impaired counsel’s representation: see Neil at para. 39. As Mr. Fleming had not actually taken any actions as counsel at the time of that conversation, there could be no impairment of his representation at that point. The only inference that can reasonably be drawn from the record is that he was concerned to develop a rapport with the appellant so that he could retain some control and prevent his client from losing his temper, changing instructions, and possibly firing him mid-trial, a situation Mr. Fleming understood would not be in the interests of the appellant or the administration of justice. While his means for effecting this were not laudable, they do not indicate disloyalty on the part of Mr. Fleming. [37] Second, the circumstances around the somewhat bizarre factum submitted by Mr. Fleming on the voluntariness voir dire further illustrate the same pattern: a misguided attempt to provide the best defence possible for the appellant in the face of a very strong Crown case and no evidence to support the appellant’s assertion that he did not have an operating mind when he made the statements as a result of his personal and medical circumstances as well as the blow to his head delivered by the officer. [38] When the appellant was insisting on pressing this argument in the voluntariness voir dire , Mr. Fleming wrote two additional letters to Dr. Bradford seeking input as to whether, in his view, the appellant’s condition could provide the basis for any limited capacity defence. His suggestion that he meet with Dr. Sinclair, the Crown expert, to see if there might be anything there before the trial was strange and unusual as well but it was clearly motivated by his wish to do all he could. The report from Dr. Bradford did not support an NCR defence but did leave a very small crack open for an argument that he might have had some sort of diminished capacity. However, the basis for such an argument was directly addressed and answered by Dr. Sinclair’s report. In the end, Mr. Fleming did not obtain a response from Dr. Bradford before the voir dire , and no meeting with Dr. Sinclair ever took place. [39] Mr. Fleming’s explanation for his voluntariness factum was that the appellant’s statements were going to be admitted no matter what. Mr. Fleming, facing that reality, was concerned that if he simply conceded, the appellant would be furious, discharge him, and that would derail matters, presumably in a way that would not help the appellant. While this was questionable, there is no basis to suggest that it was borne out of disloyalty. It was a function of Mr. Fleming’s manner of dealing with his client: build a respectful relationship and allow him to determine how his defence would be conducted. [40] Third, Mr. Fleming’s communications with the Crown in which he sent the written instructions he wanted his client to sign was unquestionably misguided and wrong. However, his explanations for this do not support a finding that it was driven by disloyalty to his client. Again, Mr. Fleming had a volatile client who was not taking his advice. He believed, rightly or wrongly, that the best he could do for him in the circumstances was to keep him calm with a view to preventing him from further instruction reversals and from ending up without a lawyer mid-trial. In addition, he expressed the view, in an email he sent to Mr. Delmar Doucette seeking advice with his instructions, that the documents were not, in substance, different from the admissions that the appellant’s former lawyer had filed when she was counsel on the agreement of Mr. Gregson. [41] Mr. Doucette subsequently advised Mr. Fleming that the communication of a client’s instructions was never acceptable and should not have been attempted. In retrospect, Mr. Fleming acknowledged to Mr. Campbell that it had been an error for him to attempt to share the instructions with the Crown. It was not done as a result of any conflict on Mr. Fleming’s part. [42] Fourth, the appellant raises Mr. Fleming’s letter to the Crown dated February 13, 2012, in which Mr. Fleming claimed to have spoken with a consultant and raised the possibility of speaking with Dr. Sinclair. Mr. Fleming subsequently told Mr. Campbell that the consultant was his daughter, a neurosurgery resident in the United States. Mr. Fleming claimed she had agreed with Dr. Sinclair’s report that the usual manifestations of the appellant’s conditions, if any, were impairments of balance, sight and hearing. She had added that there were possibilities of psychological brain function impairment and suggested that he ask someone such as Dr. Sinclair. [43] The fresh evidence indicates that Mr. Fleming does not have a daughter or any child or step-child who is a neurosurgeon. There is no way of knowing who, if anyone, Mr. Fleming spoke to or why he would have made this up. That said, there is again an absence of any conflict on his part that could provide a motive for him to lie. It is clear that he was trying to find support for some sort of limited capacity defence. The problem was that the evidence simply did not support it. In fact, the contemporaneous evidence shows that he was trying his best for his client and was personally discouraged by the prospects for his client. Mr. Campbell included his notes taken from his interview with François Dulude, a lawyer who had assisted Mr. Fleming during the trial. Mr. Dulude recalled that Mr. Fleming was discouraged by the lack of evidence that could support any diminished capacity defence and that Mr. Fleming worked hard on the case. Mr. Doucette, who Mr. Fleming consulted on the subject of drafting instructions, also expressed the view that Mr. Fleming, while seeing the case as largely “hopeless”, never “threw in the towel”. These observations do not support the suggestion that Mr. Fleming was in any sort of conflict. [44] In sum, the evidence on the conduct on the part of Mr. Fleming that the appellant points to does not reveal any actual conflict of interest that could ground a finding of a breach of the duty of loyalty, pursuant to the test in Neil . Given the difficult circumstances in which Mr. Fleming was acting, there were reasonable explanations for his at times misguided conduct, including that he was trying to pursue any possible defence available to the appellant and to seek concessions or favours from the Crown. In my view, Mr. Fleming was not acting out of divided loyalty, but was committed to his client’s cause. As a result, the appellant’s sole ground of appeal on the breach of the duty of loyalty cannot succeed. [45] As the appeal from conviction is dismissed, it will not be necessary to address the sentence appeal, given the minimum sentence for first degree murder. D. Disposition [46] I would dismiss the appeal. Released: October 7, 2021 “D.W.” “A. Harvison Young J.A.” “I agree David Watt J.A.” “I agree M.L. Benotto J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lawlor, 2021 ONCA 692 DATE: 20211007 DOCKET: C63960 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Linda Lawlor Appellant Amit Thakore, for the appellant Andrew Hotke, for the respondent Heard and released orally: October 4, 2021 by video conference On appeal from the conviction entered by Justice B.A. Allen of the Superior Court of Justice on June 30, 2016 and the sentence imposed on June 30, 2017. REASONS FOR DECISION [1] After a trial by judge alone, the appellant was convicted of one count of fraud over $5,000. She received a conditional sentence of two years, less a day and was ordered to pay a fine in lieu of forfeiture of $603,437. The appellant was given 20 years to pay the fine and, in default, a three-year penitentiary sentence. [2] The appellant appeals conviction and, if leave is granted, appeals from the fine in lieu of forfeiture portion of her sentence. Background [3] The appellant and a co-accused were charged with several offences relating to transactions involving eight different properties owned by the co-accused’s elderly father. At the conclusion of the preliminary inquiry, the presiding judge indicated the co-accused would be committed for trial with respect to each of the eight properties. The appellant, however, would be committed for trial only in respect of the property on St. Clair Avenue. [4] The appellant and the co-accused eventually proceeded to trial in the Superior Court on a single-count indictment, alleging fraud over $5,000. The timeframe in the indictment captured all eight transactions, but the indictment contained no particulars and made no reference to any specific property. [5] The trial proceeded. The Crown led evidence in respect of all eight transactions. No one objected. The co-accused testified. The appellant did not. [6] It would appear that counsel and the trial judge proceeded on the basis that all of the evidence was admissible against both the appellant and the co-accused, and that the allegation against the appellant encompassed all eight properties. [7] The case against the appellant on the St. Clair Avenue property was straightforward. She accessed the land titles system using a personal security licence (“PSL”) she had initially obtained while working as a legal assistant in a law firm. The appellant transferred ownership of the St. Clair Avenue property from the co-accused’s elderly father to the co-accused and another person. The co-accused had the same last name as his father. The father had no knowledge of the transfer until years later. [8] Within about a month of the fraudulent transfer of the property, a mortgage in the amount of about $355,000 was placed on the St. Clair Avenue property. A second mortgage in the amount of about $250,000 was placed on the property a year later. Proceeds from those mortgages went into a corporate bank account controlled by the appellant and two others. [9] The trial judge was satisfied the appellant knew she had no authority to transfer the St. Clair Avenue property from the true owner to her co-accused and another party. That transfer clearly put the father’s economic interests at risk, resulting in deprivation. [10] The trial judge was also satisfied the appellant appreciated the consequences to the economic interests of the father brought about by the dishonest transfer of the ownership of the St. Clair Avenue property: see Reasons for Judgment, at paras. 173-79. The Conviction Appeal [11] In her reasons for judgment, the trial judge proceeded on the basis that the appellant could be convicted if the Crown proved her fraudulent involvement in any of the transactions. On the evidence, the appellant had some involvement in properties on Harwood Avenue and Ruden Crescent, as well as the St. Clair Avenue property. In reference to 200 Harwood Avenue, the trial judge described the appellant’s involvement as “minimal”. The trial judge indicated the appellant had a more significant connection with the Ruden Crescent property. However, the trial judge expressly indicated her conviction of the appellant rested on the appellant’s involvement with the St. Clair Avenue property and the trial judge’s conclusion that her involvement established her guilt on a charge of fraud over $5,000 beyond a reasonable doubt. [12] After the trial judge released her reasons convicting the appellant, the appellant, represented by new counsel, sought a mistrial on the basis that the trial judge had misunderstood the nature of the charge against the appellant. Counsel argued that the appellant’s lawyer, the trial judge, and the Crown had mistakenly proceeded on the basis that the appellant could be convicted based on her involvement with any of the properties. In fact, argued the accused on the mistrial motion, while the case against the co-accused related to all properties, the appellant could only be convicted in respect of the St. Clair Avenue property. In advancing this submission, the appellant relied on the terms of the committal for trial. [13] On the motion for a mistrial, counsel argued that a mistrial was the only appropriate remedy, specifically rejecting the Crown suggestion that the evidence could be reopened to allow the defence to call any evidence it may not have called because of the misunderstanding as to the nature of the charge against the appellant. [14] The trial judge dismissed the motion for a mistrial. [15] The appellant renews the arguments that were rejected by the trial judge. She contends the misapprehension of the scope of the evidence led to the admission of evidence that was inadmissible against her. The appellant also submits that the misapprehension of the nature of the charge caused her to lose the right to make properly informed decisions as to the conduct of her defence. [16] We reject those submissions for three reasons. First, it is clear the conviction rested on the trial judge’s finding in respect of the St. Clair Avenue property. The evidence in respect of that property was overwhelming. The appellant transferred ownership with no authority and within a month found herself in possession of the proceeds of a substantial mortgage placed on the property. No explanation was ever offered. [17] Not only did the trial judge make it clear that the conviction rested on the evidence relating to the St. Clair Avenue property, she also made it clear the evidence in respect of the other properties could not support a conviction. [18] Second, the limited evidence of the appellant’s involvement in transactions involving two of the other properties, particularly the Ruden Crescent property, was admissible to show the existence of the relationship between the appellant and the co-accused, specifically in relation to transactions involving the property of the co-accused’s elderly father. There is nothing in the reasons to suggest that the trial judge misused the evidence in respect of the appellant’s involvement in the other properties. [19] Third, while the appellant submits the misunderstanding as to the nature of the charge deprived her of the right to make certain informed choices, she offers no specifics, either in the affidavit filed on the mistrial application, or in her former trial lawyer’s affidavit in support of that position. The appellant argues that counsel’s advice to her during the trial was “guided by this misunderstanding”. However, the appellant, as is her right, has refused to waive client-solicitor privilege, thereby making it impossible to evaluate the legitimacy of this claim. [20] The St. Clair Avenue property was clearly the focus of the Crown’s allegation against the appellant. The appellant chose not to testify. We see no basis upon which to conclude that choice may have been different had she understood the allegations in respect of the St. Clair Avenue property were not just the central thrust of the Crown’s case, but were in fact the entirety of the Crown’s case. [21] We also see no merit in the argument the trial judge failed to allow the defence to reopen the evidence. The defence at trial did not seek to reopen the evidence. To the contrary, the defence indicated reopening the evidence would not assist. Even after the trial judge made her ruling denying the mistrial, she left open the possibility of a defence motion to reopen the evidence. The defence made no such motion. [22] Finally, nothing has been put before this court to suggest what additional evidence may have been led, had the evidence been reopened, that could possibly have made any difference to the outcome of the charge as it related to the St. Clair Avenue property. [23] The conviction appeal is dismissed. The Sentence Appeal [24] The appellant had control over funds obtained as a result of the fraudulent mortgages placed on the St. Clair Avenue property and deposited into the corporate account. Two other individuals also had signing authority over that account. The charges against both were withdrawn in the Provincial Court. [25] We reject the submission that the appellant had less than total control over the funds in the account. The fact that others had signing authority does not diminish the appellant’s control over the funds. [26] The appellant argues that the fine in lieu of forfeiture should have been limited to the amount that could actually be traced into the appellant’s pocket. The quantum of a fine in lieu of forfeiture is not limited to the amount of the benefit actually obtained. Once the sentencing court decides a fine in lieu of forfeiture should be imposed, the amount of the fine is “equal to” the value of the property over which the offender has the requisite control: see R. v. Piccinini , 2015 ONCA 446, at para. 18. [27] Given the factual finding by the trial judge that the co-accused had no control over the funds generated by the fraudulent mortgages placed on the St. Clair Avenue property, the appellant could not look to the co-accused to pay some part of the fine ordered in lieu of forfeiture: see R. v. Dieckmann , 2017 ONCA 575, at para. 100. [28] Leave to appeal sentence is granted, but the appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mustard, 2021 ONCA 696 DATE: 20211007 DOCKET: C68896 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Charles Mustard Appellant Jeff Carolin and Taufiq Hashmani, for the appellant Benita Wassenaar, for the respondent Heard and released orally: October 5, 2021 by video conference On appeal from the order of Justice W. Low of the Superior Court of Justice, dismissing an application for certiorari , dated November 13, 2020. REASONS FOR DECISION [1] We agree with the application judge that there was a basis in the evidence upon which the provincial court judge could come to the conclusion that a properly instructed jury could convict on a charge of first degree murder: see Reasons of application judge, dated November 13, 2020, at pp. 8-12. [2] Consequently, certiorari was properly refused and the appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Stephens, 2021 ONCA 699 DATE: 20211007 DOCKET: M52798 (C58723) Rouleau, Benotto and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent/Responding Party and William Russel Stephens Appellant/Moving Party William Russel Stephens, acting in person Nicole Rivers, for the respondent Heard and released orally: October 5, 2021 by video conference REASONS FOR DECISION [1] The moving party seeks a stay pending his leave to appeal application to the Supreme Court of Canada. The moving party abandoned his motion for leave to appeal from the summary conviction appeal court judge’s dismissal of his appeal. A subsequent application to our court to reopen the leave was denied. There is therefore, in our view, nothing that can be stayed. [2] Accordingly, the motion is dismissed. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Smith v. GCAT Group Inc., 2021 ONCA 700 DATE: 20211007 DOCKET: C68067 Hourigan, Huscroft and Coroza JJ.A. BETWEEN Henry Smith and Susyn Smith Plaintiffs (Appellants) and GCAT Group Inc., Danial Hadizadeh and Akbar Hadizadeh Defendants (Respondents) Richard Macklin and Lucinda Bendu, for the appellants Pavle Masic, for the respondents Heard: October 6, 2021 by video conference On appeal from the order of Justice Robert F. Goldstein of the Superior Court of Justice, dated January 24, 2020. REASONS FOR DECISION [1] The motion judge dismissed the appellants’ claim against the respondents for breach of contract, alleging that the respondents supplied inferior synthetic limestone rather than the Italian limestone for which they had contracted. The appellants’ claim, which commenced in 2012, was dismissed under r. 60.12(b) because the appellants failed to comply with interlocutory orders requiring them to permit the respondents to inspect the limestone at the centre of the dispute. [2] The appellants argue that they should have been permitted a final opportunity to provide access to the respondents to inspect the limestone. [3] There is no merit in the appellants’ position. [4] Rule 60.12(b) is designed to facilitate compliance with interlocutory orders, and among other things provides that the motion judge has the discretion to dismiss a proceeding. It is no light thing to dismiss a proceeding, but there was ample basis for the motion judge to do so in this case. [5] The respondents first sought to inspect the limestone in 2017 and brought a motion to permit inspection in 2018. Testing was ordered by Master Jolley but did not take place. The appellants brought a motion to vary the Master’s order but this was rejected by the Master, who described it as smacking “of an attempt to appeal my order after the appeal period had expired”, and full indemnity costs were awarded against the appellants. The appellants appealed this order and the appeal judge found that the appeal was “entirely devoid of merit” and “completely frivolous”. He inferred that the appellants had appealed in order to avoid implementing the inspection order. Following this appeal, the appellants refused to pay costs unless the respondents signed a “satisfaction piece”, a requirement that had not existed in the Rules for over thirty years. The appellants continued to advance the argument that the respondents had lost their right to inspect the limestone, an argument that had been rejected by both the Master and the appeal judge. The motion judge inferred that the appellants “continued to play games”. [6] The motion judge carefully reviewed the history of the action. He found that “no matter how many times the [appellants] are told they must permit an inspection, they will not do so”. The motion judge drew the inference that the appellants “have no case and they must know it.” In these circumstances, dismissal of the action under r. 60.12(b) was amply justified. The motion judge was not required to provide the appellants with yet another opportunity to disobey a court order before dismissing the action. [7] The appellants blame their former lawyer for pursuing what they describe as a “stubborn litigation strategy”. They seek leave to file fresh evidence demonstrating that he gave erroneous advice on which they relied. [8] There is no basis to set aside the motion judge’s order because of the appellants’ complaint about their counsel’s strategy and we do not admit the fresh evidence that purports to demonstrate counsel’s failings. It is supported only by a self-interested affidavit filed by one of the appellants, which indicates that he was not aware of the litigation strategy his counsel pursued. There is ample evidence in the record to the contrary. In any event, the appellants may pursue a negligence action against their lawyer if they think he provided erroneous advice: see Oz Merchandising Inc. v. Canadian Professional Soccer League Inc. , 2021 ONCA 520 at para. 44. [9] In summary, the motion judge applied the relevant law and made no error in doing so. His decision to dismiss the appellants’ action is entitled to deference. [10] Leave to introduce the fresh evidence is denied. The appeal is dismissed. [11] The respondents are entitled to costs for the appeal, including the fresh evidence motion, fixed at $13,000 all inclusive. “C.W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Lalonde v. Agha, 2021 ONCA 704 DATE: 20211008 DOCKET: C68482 Brown, Roberts and Zarnett JJ.A. BETWEEN Sophie Lalonde Applicant (Respondent) and Samer Agha Respondent (Appellant) Robert J.M. Ballance, for the appellant Michelle DiCarlo, for the respondent Heard: June 29, 2021 by video conference On appeal from the order of Justice Kirk W. Munroe of the Superior Court of Justice dated June 3, 2020, with reasons reported at 2020 ONSC 3486. COSTS ENDORSEMENT [1] On September 24, 2021, we dismissed the appellant’s appeal. As the appellant concedes, the respondent was successful and is entitled to her costs of the appeal. [2] We do not agree that this is one of those exceptional cases that merits an award of full indemnity costs. The respondent is entitled to her costs of the appeal in the amount of $5,000, inclusive of all disbursements and applicable taxes. “David Brown J.A.” “L.B. Roberts J.A.” “B. Zarnett J.A. ”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Morris, 2021 ONCA 680 DATE: 20211008 DOCKET: C65766 Fairburn A.C.J.O., Doherty, Juriansz, Tulloch and Paciocco JJ.A. BETWEEN Her Majesty the Queen Appellant and Kevin Morris Respondent Roger Shallow, for the appellant Faisal Mirza and Gail D. Smith, for the respondent Nana Yanful, Johnathan Shime and Roger Rowe, for the interveners Black Legal Action Centre and Canadian Association of Black Lawyers Caitlyn E. Kasper and Douglas Varrette, for the intervener Aboriginal Legal Services Nader R. Hasan and Geetha Philipupillai, for the intervener the David Asper Centre for Constitutional Rights Emily Lam and Marianne Salih, for the intervener Criminal Lawyers’ Association Annamaria Enenajor, for the intervener Urban Alliance on Race Relations Anil K. Kapoor and Victoria M. Cichalewska, for the intervener Canadian Civil Liberties Association Taufiq Hashmani, for the intervener Canadian Muslim Lawyers Association Saman Wickramasinghe and Zach Kerbel, for the interveners South Asian Legal Clinic of Ontario, Chinese and Southeast Asian Legal Clinic, and Colour of Poverty/Colour of Change Heard: February 11, 2021 by video conference On appeal from the sentence imposed on July 19, 2018 by Justice Shaun S. Nakatsuru of the Superior Court of Justice, with reasons reported at 2018 ONSC 5186, 422 C.R.R. (2d) 154. By the Court: introduction [1] It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis: see R. v. Le , 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97; R. v. Theriault , 2021 ONCA 517, at para. 212, leave to appeal to S.C.C. requested, 39768 (July 19, 2021); R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.), at p. 342, leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: Government of Ontario, 2018), at p. 19; Ontario Association of Children’s Aid Societies, One Vision One Voice: Changing the Child Welfare System for African Canadians (Toronto: Ontario Association of Children’s Aid Societies, 2016), at p. 29 . Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. This appeal requires the court to consider how trial judges should take evidence of anti-Black racism into account on sentencing. overview [2] On June 28, 2017, a jury found the appellant, Kevin Morris, guilty of possession of a loaded prohibited/restricted handgun, contrary to s. 95 of the Criminal Code , R.S.C. 1985, c. C-46, carrying a concealed weapon, contrary to s. 90 of the Criminal Code , and two other related-gun charges under ss. 91 and 92 of the Criminal Code . The trial judge stayed the charge arising under s. 91 and entered convictions on the other charges. All of the charges arose out of Mr. Morris’s possession of a loaded .38 calibre Smith & Wesson handgun. Except for the purposes of fixing the sentence on each charge, there is no need in these reasons to examine the charges separately. [3] In July 2018, the trial judge sentenced Mr. Morris to 1 day in jail to be followed by 18 months probation. 0F [1] In imposing sentence, the trial judge concluded the respondent should receive a sentence of 15 months plus probation for 18 months. Following deductions for breaches of the Canadian Charter of Rights and Freedoms (3 months) and pretrial custody (243 days at a rate of 1.5:1), Mr. Morris was left with a net sentence of 1 day plus 18 months probation. [4] The Crown seeks leave to appeal the sentence imposed. The Crown contends the sentence is manifestly unfit and the trial judge made several material errors in his reasons, particularly in his treatment of the evidence led by Mr. Morris concerning the impact of overt and institutional anti-Black racism. The Crown argues that the decisions of this court in R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), and R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), remain good law. These cases acknowledge that an offender’s personal circumstances, including those tied to overt and institutional racism and its multi-faceted effects, can be relevant in determining an appropriate sentence. Their ultimate impact on the sentencing process will, as with other facts relevant to sentencing, depend on the specifics of the individual case. [5] Crown counsel acknowledges the reality of overt and institutional racism and its negative impact, particularly within the criminal justice system. Crown counsel accepts that the courts, and in particular trial judges, must frankly acknowledge that reality and take it into account within the sentencing scheme set out by Parliament. [6] The Crown maintains, however, that the trial judge allowed his consideration of the impact of overt and institutional racism on Mr. Morris to overwhelm all other considerations relevant to fashioning a fit sentence. The result, says the Crown, is a sentence that fails to reflect the seriousness of the offences and falls well below the range of appropriate sentences established in decisions from this court and the Supreme Court of Canada. [7] The Crown submits a fit sentence is three years. The Crown accepts, however, in light of the passage of time and subsequent events, that the incarceration of Mr. Morris at this time would be inappropriate. 1F [2] The Crown asks the court to vary the sentence to three years and permanently stay the imposition of that sentence. [8] Counsel for Mr. Morris submit the trial judge properly admitted, considered, and assessed the detailed and cogent evidence of longstanding overt and institutional systemic anti-Black racism and how that racism negatively affected Mr. Morris. Counsel do not equate the sentencing of Black offenders with the sentencing of Indigenous offenders. They do contend, however, that the use of social context evidence in fashioning the appropriate sentence, a requirement when sentencing Indigenous offenders, should also play a prominent role in determining the appropriate sentence for Black offenders. [9] Counsel for Mr. Morris do not ask the court to overrule Borde or Hamilton . They submit the court can build on the dicta in those cases. Counsel argue the trial judge in this case had a wealth of information, combined with the insight of experts, allowing him to much more fully understand the pervasive impact of racism on Mr. Morris throughout his life and its relevance in determining the appropriate sentence for him. Counsel contend the methodology employed by the trial judge sits comfortably with the dicta in Borde and Hamilton and reflects the powerful picture painted by the evidence led by the defence on sentencing. Lastly, counsel for Mr. Morris remind the court that it must defer to the trial judge’s factual findings, absent a determination those findings are unreasonable. Counsel submit the appeal should be dismissed. [10] Several parties intervened. By and large, they support the approach taken by the trial judge on sentencing. There are some differences in the positions taken by the interveners. Most notably, Aboriginal Legal Services takes the position that the detailed “ Gladue ” jurisprudence developed in reference to the application to Indigenous offenders of the restraint principle in s. 718.2(e) of the Criminal Code , cannot be applied to non-Indigenous offenders: see R. v. Gladue , [1999] 1 S.C.R. 688. [11] For the reasons set out below, we would allow the appeal and vary the sentence to one of two years, less a day, to be followed by probation on the terms imposed by the trial judge. We would permanently stay that sentence. [12] This appeal raises important questions of general application in sentencing, as well as specific issues relating to this case. Our reasons are long. We will begin with a point-form summary of what we regard as the principal conclusions in respect of the broader issues. We will then outline the evidence at trial, the proceedings on a motion to stay the charges, and the evidence led on sentencing by counsel for Mr. Morris. Finally, we will turn to the arguments made on the appeal. principal conclusions [13] For the reasons set out below, we come to the following conclusions: · The trial judge’s task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code ; · Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718; · The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence; · Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender; · Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided; · The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing. the evidence at trial [14] On December 13, 2014, shortly after midnight, a man contacted the police, claiming that about 20 minutes earlier he had been the victim of a home invasion robbery. He described the robbers as four Black men. [15] Two plainclothes officers in separate unmarked vehicles responded to the police radio call reporting the robbery. They saw four Black men walking together in a parking lot in the immediate vicinity of the robbery. Two of the men went to one vehicle parked in the lot and Mr. Morris and the fourth man walked toward a second vehicle. One of the officers used his vehicle to block the path of the vehicle Mr. Morris was walking toward. This officer identified himself as a police officer and told the two men to stop. Mr. Morris fled, the other individual remained. [16] The officer in the other unmarked vehicle moved his vehicle quickly across the parking lot in an effort to cut Mr. Morris off. According to the officer’s evidence, he had stopped his vehicle when Mr. Morris ran into it and fell to the ground. Mr. Morris got up quickly and fled. He scaled a high fence and ran into the parking lot of an adjacent No Frills grocery store. [17] By the time Mr. Morris was running across the No Frills parking lot, uniformed police officers were in pursuit. Officer Faduck quickly gained ground on Mr. Morris. He identified himself as a police officer and told Mr. Morris to stop. Mr. Morris kept running. [18] As Officer Faduck followed Mr. Morris, it appeared to him that Mr. Morris was trying to remove his jacket as he ran. Officer Faduck saw Mr. Morris duck into a stairwell. When he re-emerged from the stairwell, he was no longer wearing his jacket. [19] Officer Faduck continued his pursuit. Shortly afterward, he caught up to, and tackled Mr. Morris, and placed him under arrest for robbery. [20] After Mr. Morris was arrested, Officer Faduck went back to the stairwell. He found a jacket in a puddle on the ground. In the jacket he found a loaded .38 calibre Smith & Wesson handgun. Mr. Morris was taken into custody. As it turned out, there was no evidence to charge Mr. Morris or any of his three companions with the robbery. [21] Mr. Morris testified at trial. He told a very different story. According to him, he and three friends were walking across a parking lot. Mr. Morris moved toward the edge of the parking lot, looking for a place to urinate. Suddenly, a vehicle approached him, moving very quickly across the parking lot toward him. The vehicle struck Mr. Morris and knocked him to the ground. Mr. Morris saw someone getting out of the car. He got up and ran, fearing that he was about to be attacked. Mr. Morris had been stabbed and seriously injured about 22 months earlier. According to Mr. Morris, the person getting out of the vehicle that struck him did not identify himself as a police officer and Mr. Morris had no reason to think he was a police officer. [22] Mr. Morris testified that he ran across the parking lot, scaled the fence and ran into the No Frills parking lot. Initially, he did not see anyone behind him. [23] Mr. Morris indicated, that as he ran, he heard the person chasing him say something and he looked around. He realized it was a uniformed police officer chasing him, so he stopped. The officer tackled him and struck him several times. [24] Mr. Morris indicated he was wearing an expensive new jacket that night. According to him, the jacket caught on the fence when he was climbing over it. He last saw it hanging on the fence. Mr. Morris denied ducking into the stairwell of the No Frills parking lot. He also denied throwing his jacket into a puddle in the stairwell. Mr. Morris insisted he never had possession of a gun. It was implicit in Mr. Morris’s testimony that the police took the jacket from the fence, placed it in the stairwell and planted the gun in the pocket of the jacket. [25] The jury’s verdicts make it clear the jury was satisfied beyond a reasonable doubt Mr. Morris had possession of the loaded handgun and was lying when he testified he did not leave his jacket in the stairwell and did not have possession of the gun found in the jacket. the stay application [26] At the outset of his trial, the respondent brought a motion for a stay of proceedings alleging several Charter violations. The trial judge dismissed the motion: R. v. Morris , 2017 ONSC 4298, 387 C.R.R. (2d) 154. The trial judge’s ruling is not challenged on appeal. Some of the trial judge’s findings are, however, relevant to the sentencing proceedings. [27] The trial judge made detailed findings of fact, including the following: · the two plainclothes officers, who initially approached Mr. Morris in their vehicles, were engaged in a lawful investigation of the robbery; · the plainclothes officers identified themselves as police officers, but the trial judge was not satisfied Mr. Morris necessarily heard and understood what they said before he ran; · Officer Faduck identified himself as a police officer when he was chasing Mr. Morris. Officer Faduck was in uniform. Mr. Morris heard and understood Officer Faduck, but kept running and did not stop until Officer Faduck tackled and arrested him; and · Mr. Morris removed his jacket as he was running and threw it in the stairwell. [28] The trial judge held that the police had grounds to detain Mr. Morris for investigative purposes. However, Mr. Morris was not detained prior to his arrest by Officer Faduck. Officer Faduck had reasonable and probable grounds to arrest Mr. Morris. [29] The trial judge found that the vehicle driven by one of the plainclothes officers struck Mr. Morris and ran over his left foot, causing an injury that required medical attention. The trial judge rejected the officer’s evidence that Mr. Morris ran into the vehicle after the vehicle had stopped. The trial judge concluded that, while the officer was engaged in a lawful attempt to stop a fleeing suspect and did not intend to hit Mr. Morris with his vehicle, he was driving quickly, aggressively and, in all of the circumstances, “very careless[ly]”. The trial judge held that when the officer struck Mr. Morris with his vehicle, he violated Mr. Morris’s rights under s. 7 of the Charter . [30] The trial judge rejected Mr. Morris’s claim the police used excessive force in the course of his arrest and confinement. The trial judge found Mr. Morris was not credible on these issues. [31] The trial judge also accepted, again contrary to Mr. Morris’s evidence, that Mr. Morris was advised of his right to counsel and given access to counsel in a timely fashion. The trial judge did, however, find a violation of s. 10(b) of the Charter based on certain questions which the officers put to Mr. Morris before he had a chance to exercise his right to counsel. The trial judge described the questions as “relatively innocuous” and the breach as “far from … egregious”. He also noted the Crown did not seek to rely on any of the statements made by Mr. Morris. [32] In dismissing the motion for a stay of proceedings, the trial judge described the Charter breaches as “relatively minor”. He further indicated that if Mr. Morris was convicted, those breaches could potentially be taken into account on sentencing. The trial judge did just that when he imposed sentence, reducing what would otherwise have been a sentence of 15 months to 12 months. the evidence on sentencing [33] Mr. Morris was almost 23 years old when he committed these offences. He was 26 at the time of sentencing. [34] Mr. Morris did not have a criminal record at the time of sentencing. According to information provided by Mr. Morris, he had been charged with offences in the past, and on one occasion, spent “a couple of weeks” in a correctional facility for young offenders. It does not appear that Mr. Morris spent any appreciable time in custody on adult charges until he was arrested on the charges related to the home invasion in April 2017. [35] Mr. Morris had been attacked and stabbed by an acquaintance in February 2013. It is not clear what motivated the stabbing. Mr. Morris suffered serious internal injuries requiring surgery. Those injuries have resulted in ongoing medical problems which have interfered with Mr. Morris’s ability to obtain employment, and caused him problems while incarcerated after April 2017. The stabbing has also had a negative effect on Mr. Morris’s mental health. [36] Mr. Morris’s family doctor sent him for a psychiatric consultation in January 2014, about 10 months after Mr. Morris was stabbed and about 11 months before he committed these offences. The consultation report included the following: Mr. Morris is a 22-year-old gentleman with a history of a traumatic event which included severe stab wounds approximately one year ago. The exact circumstances around this event are unknown as Mr. Morris mentioned that it was a robbery at the time. He does suffer from symptoms of post-traumatic stress disorder after this event, including flashbacks, nightmares, re-experiencing the event, and always feeling very hypervigilant and on edge. He feels extremely socially isolated as a result and essentially is nonfunctional. He is not working, unable to go to school, and stays home all day by himself. [37] The psychiatrist recommended a medication regime and follow-up psychotherapy. Mr. Morris did not take the medication and did not return to the psychiatrist for psychotherapy. [38] In a statement to the court at sentencing, Mr. Morris apologized to his mother and promised her he would change and make something out of his life. The Social Context Evidence [39] Counsel for Mr. Morris tendered two reports at sentencing. The first, entitled “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario”, describes and analyzes the research that has been done on the existence, causes, and impact of anti-Black racism in Canadian society, especially in the Toronto area. The report provides an historical and social account of the Black experience in Canada. It draws a connection between the long history in Canada of overtly racist attitudes and social practices and present day institutional and systemic discrimination against Black people. The report explains how systemic discrimination in many social institutions marginalizes Black people in communities marked by poverty, diminished economic and employment opportunities, and a strong and aggressive police presence. These factors combine to leave many in the Black community with the reasonable perception that Canadian society, and in particular the criminal justice system, is racist and unfair. [40] The authors conclude: It is our opinion that the social circumstances of Black Canadians in general, and of Black male Torontonians in particular, should be viewed as criminogenic. Elevated levels of offending in the types of crimes that typically come to the attention of the police (street crimes as opposed to white-collar and corporate crimes), combined with discrimination in the justice system itself have resulted in the gross over-representation of Black Canadians in our provincial and federal correctional systems. Whereas no one individual should be completely absolved of their own responsibility when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged, and serve to guide judicial decision making. [41] At the sentencing proceedings, the Crown argued that this report was inadmissible as the trial judge could properly take judicial notice of the existence of overt and systemic anti-Black racism in Canadian society and the criminal justice system in particular. The trial judge rejected the Crown’s arguments and admitted the report. On appeal, the Crown takes no issue with the admissibility of this report. We agree with the Crown’s concession. [42] We accept, as did the trial judge, that the trial judge could have taken judicial notice of many of the historical and social facts referred to in the report: see e.g., Le , at paras. 82-88; Theriault , at paras. 212-18; R. v. Anderson , 2021 NSCA 62 (“ Anderson (NSCA) ”) , at para. 111; and R. v. Jackson , 2018 ONSC 2527, 46 C.R. (7th) 167, at paras. 81-92. Even though much of the report could have been the subject of judicial notice, the admission of the report as a whole had value for sentencing purposes. The report gave the trial judge the benefit of a scholarly, comprehensive, and compelling description of the widespread and pernicious effect of anti-Black racism. As the trial judge observed, it helped him understand how Mr. Morris ended up where he did. [43] The report bears reading and re-reading by those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders. The report is easily accessible as the trial judge helpfully attached a copy as an appendix to his reasons for sentence. [44] The second report, a “Social History of Kevin Morris” (the “Sibblis Report”), was prepared by Camisha Sibblis, a clinical social worker and PhD candidate with a research focus on education and social work. Ms. Sibblis, who also co-authored the first report, has had extensive clinical experience, much of it involving assessments of young persons, often Black youth, for various social agencies. In addition, Ms. Sibblis conducts anti-Black racism workshops aimed at educating participants on the manner in which systemic anti-Black racism impacts on Black youth in various contexts, including in the educational system. [45] Ms. Sibblis was asked to review Mr. Morris’s social history and trajectory with a view to providing an analysis of the impact of systemic racism on his experiences in and out of the justice system. As we understand the Sibblis Report, it is intended to bring the more general social context information provided in the first report home to the specific circumstances of Mr. Morris’s life experiences. In effect, the Sibblis Report sought to demonstrate how the negative consequences of anti-Black racism, identified and described in the first report, were very much a reality for Mr. Morris. [46] The Sibblis Report provides a biography of Mr. Morris and his mother, Esta Reid. Ms. Reid arrived in Canada from Jamaica in 1978. Mr. Morris was born in January 1992. Although Mr. Morris’s father did not live with Mr. Morris and his mother, Mr. Morris saw him regularly and had a close relationship with him. Unfortunately, his father died when Mr. Morris was seven years old. Ms. Reid had to assume all the parental obligations, while at the same time becoming the sole provider for the family. Ms. Reid worked a variety of jobs, many of which involved long hours. [47] There is a very strong bond between Mr. Morris and his mother. He loves her very much and she has done everything she can to provide for Mr. Morris. [48] The Sibblis Report traces Mr. Morris’s experiences with the educational system and refers to his interactions with the Children’s Aid Society. The report describes the injuries suffered by Mr. Morris when he was stabbed in 2013 and the ongoing medical problems he has suffered. The report sets out Mr. Morris’s experiences within the community in which he grew up and how he has come to perceive that community as a threatening and unsafe place. The report also summarizes Mr. Morris’s perceptions of how he has been treated by the police and correctional authorities. [49] In her report, Ms. Sibblis writes: Under the weight of anti-Black racism, Mr. Morris had little option than to live his life as best he could having been influenced by the streets. His overall social circumstances, while not excusing his behaviour, have undeniably contributed to Mr. Morris being involved with the justice system today. Mr. Morris has also lived, and continues to live, in constant fear. He fears the police, other community members, friends and foes alike, rivals, unknown dangers, life, death. He fears fellow inmates. He fears for his mother’s safety. Mr. Morris fears both freedom and incarceration. Mr. Morris’s imagination for what he could become was significantly limited by fear, anxiety, and actual threats; it is not positively fostered as his suffering was not sufficiently tended to. At this time, it would be appropriate to provide him with the support and treatment he ought to have received long ago. Early intervention might well have changed Mr. Morris’s trajectory and it appears as though anti-Black racism was a contributing factor in this omission. Since Mr. Morris shows empathy, and has many redeeming qualities, it is a reasonable expectation that he will respond well to mental health treatment. [50] The persons contacted by Ms. Sibblis described Mr. Morris as a person with many positive personal characteristics, notably a strong sense of empathy. However, in Ms. Sibblis’s opinion, those characteristics have been largely submerged in a lifetime of negative experiences, many of which are tied, in part at least, to institutional or overt racism. According to Ms. Sibblis, the combined impact of those events have left Mr. Morris physically and emotionally damaged, unable to obtain meaningful employment, in constant fear for his physical safety from both people in his community and the police, and without hope for the future. [51] In preparing her report, Ms. Sibblis interviewed Mr. Morris, his mother, his pastor, and a family friend. She received a supporting letter from a social worker and childhood friend. Ms. Sibblis obtained extensive documentation from various schools and educational programs Mr. Morris had attended, as well as some medical records. We do not understand the Crown to question the admissibility of the documentation gathered by Ms. Sibblis, or to suggest that the trial judge could not rely on the factual content of that documentation if the trial judge concluded it was reliable. [52] A great deal of the information relied on by Ms. Sibblis, particularly about Mr. Morris’s interactions with the police and correctional authorities, came exclusively from Mr. Morris. In parts of her report, Ms. Sibblis refers to these as Mr. Morris’s perceptions, but in other parts of her report she treats them as established facts. [53] At trial, the Crown took issue with the Sibblis Report, arguing Ms. Sibblis was not qualified to give the opinions contained in the report and that much of the information in the report was unreliable. The Crown asked the trial judge to conduct a voir dire to determine whether Ms. Sibblis was qualified to give the opinions contained in her report. [54] The trial judge declined to hold a voir dire . He admitted the Sibblis Report, noting it was similar to the report he received in Jackson and to the Impact of Race and Cultural Assessments (“IRCAs”) received in criminal courts in Nova Scotia: see Anderson (NSCA) , at paras. 104-10. The trial judge was anxious to have whatever information he could about Mr. Morris. He made it clear he was not bound by any opinion Ms. Sibblis might give, and would make his own independent evaluation of the relevance and reliability of any information in the report. The trial judge also permitted the Crown to cross-examine Ms. Sibblis, both to ensure procedural fairness and to enhance the trial judge’s ability to accurately assess the reliability of the contents of the report. Her evidence added little to her report. [55] On appeal, the Crown accepts that the Sibblis Report was properly admissible to the extent that it provided biographical information and documents relevant to that information. We also do not understand the Crown to suggest that the report was not admissible insofar as it spoke to Mr. Morris’s background, character, and circumstances. The Crown argues that Ms. Sibblis offered various opinions she was not qualified to give. We will address that argument below. the arguments A. the relevance of evidence of anti-black racism on sentencing [56] A sentencing judge has a specific and focused task. A sentencing judge must impose a sentence tailored to the individual offender and the specific offence. While evidence relating to the impact of anti-Black racism on an offender will sometimes be an important consideration on sentencing, the trial judge’s task is not primarily aimed at holding the criminal justice system accountable for systemic failures. Rather, the sentencing judge must determine a fit sentence governed by the fundamental tenets of criminal responsibility, including free will, and the purposes, principles and objectives of sentencing laid down in Part XXIII of the Criminal Code : R. v. Nur , 2015 SCC 15, [2015] 1 S.C.R. 773 (“ Nur (SCC) ”), at para. 43, aff’g 2013 ONCA 677, 117 O.R. (3d) 401 (“ Nur (ONCA) ”); R. v. Nasogaluak , 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 39-45; Hamilton , at paras. 2, 87; see also Michael C. Plaxton, “Nagging Doubts About the Use of Race (and Racism) in Sentencing” (2003) 8 C.R. (6th) 299, at pp. 306-7. (i) The Statutory Framework [57] The comprehensive statutory scheme governing sentencing first appeared in the Criminal Code in 1996: An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof , S.C. 1995, c. 22. Section 718 identifies the fundamental purpose of sentencing as being: to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…. [58] Section 718 recognizes that “just sanctions” will have one or more of the objectives identified in ss. 718(a)-(f). Those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender. The objectives identified in s. 718 are: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [59] The search for a just sanction which reflects a proper blending of the objectives of sentencing is guided by the loadstar of proportionality. This fundamental principle of sentencing is laid down in s. 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [60] Additional guiding principles are found in ss. 718.2(b)-(e): (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [ the parity principle ]; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh [ the totality principle ]; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [ the restraint principle ]; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders [ the restraint principle as applied to incarceration ]. (ii) The Proportionality Principle [61] Proportionality is the fundamental and overarching principle of sentencing. The other sentencing principles set out in s. 718.2 must be taken into account and blended in a manner which produces a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence which does not comply with the proportionality principle is an unfit sentence: R. v. Ipeelee , 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37. [62] Proportionality measured by reference to both the offence and the offender has been an integral part of sentencing in Canada since long before the enactment of s. 718.1: see R. v. M. (C.A.) , [1996] 1 S.C.R. 500, at para. 40. Under the statutory scheme, proportionality is “central”: R. v. Friesen , 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30; see also Hamilton , at para. 89. [63] Jurisprudence from the Supreme Court of Canada postdating the enactment of s. 718.1 repeatedly confirms the paramount role of proportionality in sentencing. As explained in Ipeelee , at para. 37: The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code , the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [64] In Nur (SCC) , at para. 43, McLachlin C.J. drew a straight line from proportionality to the imposition of a “just” sentence under s. 718: It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime…. Only if this is so can the public be satisfied that the offender ‘deserved’ the punishment he received and feel a confidence in the fairness and rationality of the system…. [Citations and quotation marks omitted.] [65] In Nasogaluak , at para. 42, LeBel J. described the duality of proportionality. On the one hand, it looks to the offender’s culpability and responsibility. On the other, proportionality is measured by reference to the seriousness of the crime. LeBel J. said: It [proportionality] requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just desserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused…. [Citations omitted; emphasis in original.] [66] In R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12, the majority said: [P]roportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. (a) Proportionality: The Gravity of the Offence [67] An assessment of the gravity or seriousness of the offence is one part of the proportionality analysis. The seriousness of the offence is reflected in the essential elements of the offence; the more blameworthy the required mens rea , and the more harmful the prohibited conduct, the more serious the crime. The gravity of the offence is also reflected in the applicable penalty provision. In addition, the specific circumstances surrounding the commission of the offence can make the crime more or less serious. Parliament has identified some of the features which aggravate the seriousness of an offence in s. 718.2(a): see Hamilton , at para. 90; Ipeelee , at paras. 53-55. [68] As described in Friesen , at paras. 75-76, the gravity of an offence takes into account the normative wrongfulness of the conduct and the harm posed or caused by the conduct. Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society: see Nur (ONCA) , at paras. 82, 206; R. v. Felawka , [1993] 4 S.C.R. 199, at pp. 214-15. [69] The seriousness or gravity of an offence affects the ordering and weighing of the various objectives of sentencing identified in s. 718. Generally speaking, the more serious the offence, the stronger the need to denounce the unlawful conduct and deter the offender and others from further offending. Parliament has drawn the connection between the seriousness of the offence, and denunciation and deterrence by identifying various categories of serious crimes (e.g., crimes against children, the police, and vulnerable persons) for which primary consideration must be given to the objectives of denunciation and deterrence: Criminal Code , ss. 718.01, 718.02, 718.03, 718.04. [70] When the gravity of the offence demands an emphasis on the objectives of denunciation and deterrence, the proportionality principle will most often require a disposition that includes imprisonment. Wagner J. (as he then was) observed in Lacasse , at para. 6: [A]s in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law ‑ abiding society. [71] Apart from the specific provisions in the Criminal Code , Canadian courts have long recognized that the gravity of certain kinds of offences requires sentences emphasizing denunciation and general deterrence. Gun crimes involving the unlawful possession of loaded handguns in public places fall squarely within that category. McLachlin C.J., in Nur (SCC) , at para. 82, observed that a three-year sentence may be appropriate “for the vast majority of offences” under s. 95: see also Nur (ONCA) , at para. 206; R. v. Mansingh , 2017 ONCA 68, at para. 24; R. v. Marshall , 2015 ONCA 692, 340 O.A.C. 201, at paras. 47-49; and R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77. [72] The trial judge acknowledged that deterrence and denunciation were the most important objectives when sentencing Mr. Morris. He accepted that those objectives required a significant jail term. [73] The trial judge went on, however, to hold that systemic racism and its effects: must surely have some impact upon the application of general deterrence and denunciation. It can impact upon on [ sic ] how we characterize the seriousness of the offence. [74] The trial judge indicated that if systemic racism effectively limited the choices available to an offender, general deterrence and denunciation should have a less significant role in sentencing. [75] With respect, we do not agree that the gravity or seriousness of Mr. Morris’s offences is diminished by evidence which sheds light on why he chose to commit those crimes. We do agree with the trial judge that an offender’s life experiences can certainly influence the choices made by the offender, and can explain, to some degree at least, why an offender made a choice to commit a particular crime in the specified circumstances. Those life experiences can include societal disadvantages flowing from systemic anti-Black racism in society and the criminal justice system. [76] Evidence that an offender’s choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender’s moral responsibility for his acts and not to the seriousness of the crimes. Possession of a loaded, concealed handgun in public is made no less serious, dangerous, and harmful to the community by evidence that the offender’s possession of the loaded handgun can be explained by factors, including systemic anti-Black racism, which will mitigate, to some extent, the offender’s responsibility: see Hamilton , at paras. 134-39; R. v. Hazell , 2020 ONCJ 358, at paras. 30-32; see also Dale E. Ives, “Inequality, Crime and Sentencing: Borde , Hamilton and the Relevance of Social Disadvantage in Canadian Sentencing Law” (2004) 30 Queen's L.J. 114, at p. 149. [77] It is important to preserve the distinction between factors relevant to the seriousness or gravity of the crime on the one hand, and factors relevant to the offender’s degree of responsibility on the other. Unless the distinction is maintained, the proportionality principle may be misapplied. A sentence, like the sentence imposed here, which wrongly discounts the seriousness of the offence to reflect factors which are actually relevant to the offender’s degree of responsibility, will almost inevitably produce a sentence that does not adequately reflect the seriousness of the offence and, therefore, fails to achieve the requisite proportionality. [78] Nothing in the social context evidence adduced on Mr. Morris’s behalf detracted from the seriousness of his crimes, or the need to denounce that criminal conduct and deter others from committing similar crimes. Mr. Morris’s own experiences in his community, as related to Ms. Sibblis, strongly make the case for the very real and deep harm caused to everyone in the community by persons who, like Mr. Morris, choose to engage in dangerous criminal conduct that inevitably compromises the security of the entire community. [79] The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism. [80] Blending the various objectives of sentencing is the essence of the sentencing process. There is seldom one and only one fit sentence. As long as the sentence imposed complies with the proportionality requirement in s. 718.1, trial judges are given considerable discretion to decide how best to blend the various legitimate objectives of sentencing. If trial judges operate within that band of discretion, the different weight assigned to different objectives may produce different but nonetheless equally fit sentences. [81] In the present case, the social context evidence provided a basis upon which the trial judge could give added weight to the objective of rehabilitation and less weight to the objective of specific deterrence. By doing so, the trial judge would not diminish the seriousness of the crime, but would recognize that the ultimate sentence imposed must be tailored to the specific offender and the potential rehabilitation of that offender. As long as the sentence ultimately imposed remains proportionate to the offence and the offender, the actual sentence imposed would be a fit sentence. [82] In a somewhat related submission, some of the interveners argue that because society as a whole is complicit in the anti-Black racism the trial judge found played a role in Mr. Morris’s commission of the offences, the court loses much, or at least some, of its moral authority to denounce the offender’s conduct through the sentence imposed. If this submission were to be accepted, the objectives of denunciation and deterrence, always viewed as paramount objectives when sentencing for serious gun crimes, would be tempered in cases involving Black offenders by a countervailing objective requiring that the sentence imposed acknowledge the offender’s status as a victim of society’s racism. [83] On the interveners’ submission, the allocation of responsibility for the offender’s crime, as between society at large and the offender, would become an objective of sentencing to be calibrated along with denunciation, deterrence, and rehabilitation. There is no such objective identified in s. 718 of the Criminal Code . Nor are we aware of any appellate jurisprudence recognizing the allocation of societal fault as an objective of sentencing. 2F [3] Allocating moral responsibility for crimes as between society at large and the individual offender should play no role in fixing the appropriate sentence in gun-related crimes: Hamilton , at paras. 2, 148. [84] If society’s complicity in institutional racism means denunciation and general deterrence should play a lesser role in sentencing for serious crimes, it will follow that Black offenders who commit those serious crimes, such as gun crimes, will receive shorter jail sentences than other similarly situated non-Black offenders. [85] As pointed out in the “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario”, Black communities experience a disproportionate share of serious violent crime in the Toronto area. Black youth in particular report higher levels of both violent victimization and violent offending than youth from other racial groups. Law-abiding members of those communities are the victims of overt and systemic anti-Black racism. They are also the victims, both direct and indirect, of the harm caused by gun-related crimes in their communities. Are these law-abiding members of the community to be told that the message of denunciation and deterrence, which applies to gun crimes committed in other communities, is to be muted in gun crimes committed against them in their community so the court can acknowledge the reality of anti-Black racism, a reality that those members of the community know only too well? We strongly doubt that more lenient sentences for the perpetrators of gun crimes will be seen by the law-abiding members of the community as a positive step towards social equality. Any failure to unequivocally and firmly denounce serious gun crimes, like those committed by Mr. Morris, through the punishment imposed, implies tolerance of those crimes when committed by certain offenders in certain communities. [86] Although we reject the claim that societal complicity in anti-Black racism diminishes the need to denounce and deter serious criminal conduct, we accept wholeheartedly that sentencing judges must acknowledge societal complicity in systemic racism and be alert to the possibility that the sentencing process itself may foster that complicity. A frank acknowledgement of the existence of, and harm caused by, systemic anti-Black racism, combined with a careful consideration of the kind of evidence adduced in this case, will go some distance toward disassociating the sentencing process from society’s complicity in anti-Black racism. (b) Proportionality: The Offender’s Degree of Responsibility [87] While we do not agree that evidence of the impact of anti-Black racism on an offender can diminish the seriousness of the offence, or that systemic inequalities diminish the court’s authority, or indeed, its obligation to denounce serious criminal conduct, we do accept that evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence. [88] Sentencing judges have always taken into account an offender’s background and life experiences when gauging the offender’s moral responsibility for the crime and when choosing from among available sanctions. Over 40 years ago, the Appeal Division of the Nova Scotia Supreme Court in R. v. Bartkow (1978), 24 N.S.R. (2d) 518 (App. Div.), at p. 522, put it this way when describing the purposes of a presentence report: Their function is to supply a picture of the accused as a person in society - his background, family, education, employment record, his physical and mental health, his associates and social activities, and his potentialities and motivations. [89] In Gladue , at para. 69, and Ipeelee , at paras. 75-77, the court accepted that “background and systemic factors” should be taken into account when sentencing all offenders. These factors take on added significance in respect of Indigenous offenders, given their unique history and circumstances: see also R. v. Anderson , 2014 SCC 41, [2014] 2 S.C.R. 167 (“ Anderson (SCC) ”), at paras. 21, 23-24; R. v. F.H.L. , 2018 ONCA 83, 360 C.C.C. (3d) 189, at paras. 31-32; R. v. Brown , 2020 ONCA 657, 152 O.R. (3d) 650, at paras. 50-51. [90] In Gladue and Ipeelee , the systemic and background factors relevant to sentencing included the systemic discrimination, both historical and ongoing, suffered by Indigenous persons, especially in the criminal justice system. The experience of Black people in Canada is also marked by discrimination. Black people share with Indigenous peoples many of the same disadvantages flowing from that discrimination. The reports filed on Mr. Morris’s sentencing speak eloquently to the historical roots of that discrimination and its pernicious ongoing effect on many aspects of the day-to-day lives of Black people in Canada. [91] There can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender’s community and the impact of that racism on the offender’s circumstances and life choices is part of the offender’s background and circumstances. The evidence is not only admissible, it is, in many cases, essential to the obtaining of an accurate picture of the offender as a person and a part of society. [92] This court has recognized that systemic and background factors, including those attributable to anti-Black racism, may be relevant when sentencing Black offenders. In Borde , at para. 32, Rosenberg J.A. for the court said: [T]he principles that are generally applicable to all offenders, including African Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence . [Emphasis added.] [93] In Hamilton , this court followed Borde , holding at para. 135: Reference to factors that may “have played a role in the commission of the offence” encompasses a broad range of potential considerations. Those factors include any explanation for the offender's commission of the crime. If racial and gender bias suffered by the offender helps explain why the offender committed the crime, then those factors can be said to have “played a role in the commission of the offence ”. [Emphasis added; quoting Borde , at para. 32.] [94] Hamilton goes on to explain at para. 141 how disadvantaged circumstances, including those connected to racism, can mitigate to some degree the personal responsibility of the offender. The court quoted with approval the observation of Durno J. in R. v. G.B. , [2003] O.J. No. 3218 (S.C.), at para. 45: The offenders [ sic ] background is always a relevant factor on sentencing. A sentence must be appropriate for both the offence and the offender. A person with a disadvantaged background, who had been subjected to systemic prejudices or racism, or was exposed to physical, sexual or emotional abuse, may receive a lower sentence than someone from a stable and peaceful background, where the offence is in some way linked to the background or systemic factors. The relevant factors in one person’s background will be case specific. A single factor will rarely be determinative. [95] Borde was recently followed by this court in R. v. Rage , 2018 ONCA 211, at paras. 13-14, and has been applied in other jurisdictions: see e.g., R. v. Gabriel , 2017 NSSC 90, 37 C.R. (7th) 206, at para. 50 (citing R. v. “X” , 2014 NSPC 95, 353 N.S.R. (2d) 130). [96] Some of the interveners submit that Hamilton , at para. 137, wrongly requires a direct causal link between the offence and the negative effects of anti-Black racism on the offender before anti-Black racism can be seen as mitigating personal responsibility. We agree that the concept of causation, as it is used in the substantive criminal law, plays no role when considering the impact of an offender’s background or circumstances on sentencing. As one counsel put it, a young offender does not have to show a causal connection between age and the offence before age will be treated as a mitigating factor. [97] There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount: see e.g., F.H.L. , at paras. 45-49; R. v. Elvira , 2018 ONSC 7008, at paras. 21-25; R. v. Ferguson , 2018 BCSC 1523, 420 C.R.R. (2d) 22, at paras. 126-29; and R. v. Biya , 2018 ONSC 6887, at para. 36, rev’d on other grounds, 2021 ONCA 171. [98] Borde and Hamilton both described the connection between anti-Black racism and factors relevant to the determination of a fit sentence in broad terms. Similar language appears in Gladue and Ipeelee in respect of the relevance of “background and systemic factors”. The evidence may be relevant to sentencing in more than one way. [99] The social context evidence may offer an explanation for the commission of the offence which mitigates the offender’s personal responsibility and culpability for the offence. Mr. Morris’s strong and ever-present fear of many people around him in his community, including the police, was offered as an explanation for his possession of a loaded gun. The information in both reports supported the inference that Mr. Morris’s fears were real, justified and existed, in part, as a result of systemic racism that played a role in shaping his perception of his community, his relationship with others in the community, and his relationship with the police. [100] It was open to the trial judge to find that the evidence of anti-Black racism was connected to, or played a role in, Mr. Morris’s strong fear for his personal safety in the community. That state of mind offered a mitigating explanation for Mr. Morris’s possession of the loaded, concealed handgun. Looked at in this way, evidence of anti-Black racism, which played a role in generating the fear that helps explain why Mr. Morris had a loaded gun, is akin, for the purposes of sentencing, to evidence that Mr. Morris had been terrorized by somebody in the community and had armed himself because he genuinely feared that person. In either scenario, the offender offers an explanation for possessing a loaded gun, which, to some extent, ameliorates the offender’s moral responsibility for that choice: see R. v. Boussoulas , 2015 ONSC 1536, at paras. 6-7, 20, aff’d 2018 ONCA 222, 407 C.R.R. (2d) 44. [101] It must be stressed, however, that Mr. Morris’s genuine fear, regardless of its cause, is only a limited mitigating factor. He still chose to arm himself in public with a concealed, loaded, deadly weapon. As indicated above, Mr. Morris’s reasons for choosing to arm himself do not detract from the seriousness of the crime he committed. Even if his conduct is made somewhat less blameworthy by the explanation offered for possessing the loaded handgun, Mr. Morris’s conduct still put members of the community, and police officers engaged in the lawful execution of their duties, at real risk. (c) Proportionality: Blending the Objectives of Sentencing [102] Social context evidence can also be relevant on sentencing even if it does not tend to mitigate the offender’s moral culpability. As indicated earlier, social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender. Evidence about an offender’s background and circumstances allows the sentencing judge to more accurately assess how sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718. [103] For example, evidence that an offender has had frequent and confrontational contact with the police may mean one thing in one community, but quite another in a community in which the influences of anti-Black racism have shaped a confrontational and adversarial relationship between the police and members of the community, especially young Black men. By understanding the social milieu in which the offender interacted with the police, the sentencing judge is better able to fashion a sentence that, to the extent possible, realistically addresses the needs and potential of the offender, as well as the seriousness of the offence. [104] Mr. Morris’s educational and employment history provides a further example of how social context evidence can assist in fashioning a fit sentence. Considered without the social context evidence, Mr. Morris’s educational and employment achievements are meagre and his future prospects seem bleak. Without any context, a sentencing judge could well conclude Mr. Morris had little interest in either education or employment, and consequently his rehabilitative prospects were dim. However, when Mr. Morris’s educational and employment background is considered in the context of the information provided by the Sibblis Report, a sentencing judge could determine that Mr. Morris’s trajectory, as it relates to education and employment, is more reflective of the institutional biases and systemic inadequacies faced by Mr. Morris than any lack of potential or interest on Mr. Morris’s part. By placing Mr. Morris’s educational and employment history in the proper social context, a sentencing judge is better able to decide how those parts of Mr. Morris’s background might be addressed in a positive way that benefits Mr. Morris and ultimately the community. [105] A proper understanding of how anti-Black racism has impacted on various aspects of an offender’s life will assist the sentencing judge in fashioning a sentence which includes terms that enhance the offender’s rehabilitation by addressing, in a direct and positive way, the negative impact of systemic racism. The counselling term in the probation order made by the trial judge in this case had that potential. The detailed terms of the conditional sentence imposed in Anderson (NSCA) , at paras. 72-73, also serve that purpose. [106] I n summary, social context evidence, which helps explain how the offender came to commit the offence, or which allows for a more informed and accurate assessment of the offender’s background, character and potential when choosing from among available sanctions, is relevant and admissible on sentencing. Acknowledging the reality of anti-Black racism and its impact on offenders like Mr. Morris during the sentencing process enhances the legitimacy of the criminal justice system in the eyes of the community and, in particular, those in the community who have good reason to see the criminal justice system as racist and unjust. A sentencing process which frankly acknowledges and addresses the realities of the offender’s life takes one important step toward the goal of equal justice for all. [107] We see nothing new in the approach to sentencing described above. It reflects the individualized offence and offender-specific approach to sentencing that has always held sway in Canadian courts. The sentencing process, as it exists, can properly and fairly take into account anti-Black racism and its impact on the offender’s responsibility, and the selection of an appropriate sanction in all the circumstances. What is new is the kind of information provided in reports like the two filed in this case and a judicial willingness to receive, understand, and act on that evidence. (iii) The Parity Principle [108] The parity principle in s. 718.2(b) requires that to the extent offenders and their offences are similar, their sentences should be similar. Parity aims at substantive equality. If there are material differences between the circumstances of the offence or the offender, those differences must be reflected in the sentences imposed. A sentence which takes those differences into account does not offend the parity principle, but instead properly recognizes the relationship between that principle and the fundamental principle of proportionality: Friesen , at paras. 32-33; Ipeelee , at para. 79. [109] The trial judge ultimately determined, based on the social context evidence and his findings with respect to the impact of anti-Black racism on Mr. Morris’s circumstances and his moral culpability, that a sentence well below the range established for the offences, even when committed by a young first offender, was appropriate. Sentences below the established range are not necessarily unfit: see Friesen , at para. 38; R. v. Suter , 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 4. [110] The fitness of Mr. Morris’s sentence does not ultimately depend on a comparison of that sentence with those imposed in other gun crime cases. The fitness of the sentence turns on whether the trial judge erred in holding that the social context evidence both diminished the seriousness of the offences, and mitigated Mr. Morris’s personal responsibility to the degree that a sentence well below the sentences normally imposed for the offences was justified in the circumstances. (iv) The Restraint Principle [111] Under the statutory regime created by Part XXIII, imprisonment is a sanction of last resort. This principle finds expression in ss. 718.2(d) and (e): (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [112] Both provisions are remedial in nature and apply to all offenders: Gladue , at paras. 36, 45-48. They are intended to remedy the acknowledged overuse of incarceration as a criminal sanction in Canada: Gladue , at para. 57. The restraint principle operates both when deciding whether incarceration is an appropriate disposition and, if it is, when fixing the length of that incarceration: Gladue , at paras. 79, 93. The restraint principle, however, operates within the boundaries set by the fundamental principle of proportionality. As stated by Moldaver J. in Suter , at para. 56, “the fundamental principle of proportionality must prevail in every case”. [113] Although the restraint principle applies when sentencing all offenders, s. 718.2(e) applies with “particular attention to the circumstances of Aboriginal offenders.” Not surprisingly, given this language, the courts have interpreted s. 718.2(e) as signalling Parliament’s direction that a different approach should be taken when applying the restraint principle to the sentencing of Indigenous offenders. That approach was first laid down in Gladue and further developed in Ipeelee . None of the parties take exception to the methodology developed in those cases, as applied to Indigenous offenders. Some of the interveners, however, submit this court should extend that approach to the sentencing of Black offenders. [114] Indigenous offenders were singled out in s. 718.2(e) for two reasons. First, the problems associated with over-incarceration exist with devasting force in Indigenous communities: Gladue , at paras. 58-65; Ipeelee , at paras. 56-58. Second, for many Indigenous offenders and their communities, some of the principles and objectives underlying sentencing in Part XXIII do not represent Indigenous values or reflect the unique experiences and perspectives held by many Indigenous communities. In short, what amounts to a “just” sentence from a non-Aboriginal vantage point will not necessarily be seen as a “just” sentence from the very different historical and cultural vantage point of the Indigenous offender and community: Gladue , at paras. 70-74, 77. [115] The unique circumstances of Indigenous offenders, which require special consideration when addressing the restraint principle, include both the systemic and background factors which played a role in bringing the offender before the court, and the unique Indigenous perspective as to how best to achieve a just sentence which protects the community: Gladue , at paras. 66, 93. [116] In Ipeelee , at para. 73, the court acknowledged that systemic and background factors, including institutional biases and discrimination, could play a role in determining the Indigenous offender’s degree of moral responsibility for the crime. In addition, the unique cultural and historical factors, which shaped Indigenous attitudes toward crime and punishment, could have an effect on the selection of the sanction which best achieves the purpose of sentencing as laid down in s. 718. Addressing the significance of cultural and historical differences, LeBel J. observed, at para. 74: The second set of circumstances — the types of sanctions which may be appropriate — bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself. As Cory and Iacobucci JJ. point out, at para. 73 of Gladue : “What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities.” As the [Royal Commission on Aboriginal Peoples] indicates, at p. 309 [of its report, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa, 1996)], the “crushing failure” of the Canadian criminal justice system vis-à-vis Aboriginal peoples is due to “the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice”. The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. [117] Counsel for some of the interveners argue that the circumstances of Indigenous offenders, which justify a different approach to sentencing, apply with equal force to Black offenders. They point out that over-incarceration of Black offenders is a well-documented phenomenon in the Canadian justice system. Counsel submit that the negative impact of long-term and widespread discrimination against Indigenous people is not unlike the impact of anti-Black racism on the Black community. Both communities share educational, economic, and social disadvantages. Perhaps most significantly, they share a very negative experience with and a profound distrust of the criminal justice system. [118] We do not agree that this court should equate Indigenous offenders and Black offenders for the purposes of s. 718.2(e). We come to that conclusion for two reasons. [119] Sentencing policy falls to be set, first and foremost, by Parliament. Parliament chose to specifically single out one group – Aboriginal offenders – in the context of the operation of the restraint principle in sentencing, especially as applied to imprisonment. As said in Gladue , at para. 37: Rather, the logical meaning to be derived from the special reference to the circumstances of aboriginal offenders, juxtaposed as it is against a general direction to consider “the circumstances” for all offenders, is that sentencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders. The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction. [Emphasis omitted.] [120] Similarly, in Ipeelee , the court, at para. 59, read the reference to Aboriginal offenders in s. 718.2(e) as indicating their circumstances were unique and materially different from those of non-Aboriginal offenders. [121] The language of s. 718.2(e) could not be clearer. Aboriginal offenders have been singled out for the purposes of the application of the restraint principle described in s. 718.2(e). It does not fall to the court to effectively amend that language to include other identifiable groups. [122] In any event, the rationale offered in Gladue and Ipeelee for applying the restraint principle differently in respect of Indigenous offenders does not apply to Black offenders. Although there can be no doubt that the impact of anti-Black racism on a specific offender may mitigate that offender’s responsibility for the crime, just as with Indigenous offenders, there is no basis to conclude that Black offenders, or Black communities, share a fundamentally different view of justice, or what constitutes a “just” sentence in any given situation. The Indigenous offender’s culture and historical relationship with non-Indigenous Canada is truly unique. That uniqueness explains the very specific and exclusive reference to “Aboriginal offenders” in s. 718.2(e). [123] Although we would not equate Black offenders with Indigenous offenders, for the purposes of s. 718.2(e), the Gladue / Ipeelee jurisprudence can inform the sentencing of Black offenders in several respects: see Borde , at para. 30. Just as with the discrimination suffered by Indigenous offenders, courts should take judicial notice of the existence of anti-Black racism in Canada and its potential impact on individual offenders. Courts should admit evidence on sentencing directed at the existence of anti-Black racism in the offender’s community, and the impact of that racism on the offender’s background and circumstances. Similarly, in considering the restraint principle, courts should bear in mind well-established over-incarceration of Black offenders, particularly young male offenders. Finally, as with Indigenous offenders, the discrimination suffered by Black offenders and its effect on their background, character, and circumstances may, in a given case, play a role in fixing the offender’s moral responsibility for the crime, and/or blending the various objectives of sentencing to arrive at an appropriate sanction in the circumstances. [124] The restraint principle plays a specific and important role in sentencing for serious crimes like crimes involving the unlawful possession of loaded handguns. Because of the seriousness of crimes involving the possession of loaded handguns, some term of imprisonment will usually be required to reflect the seriousness of the crime. [125] The requirement of a sentence of imprisonment does not, however, end the operation of the restraint principle. That principle requires the court, if it determines that a sentence of less than two years imprisonment would be appropriate, to consider whether the term of imprisonment could be served in the community under a conditional sentence: Criminal Code , s. 742.1. The restraint principle favours conditional sentences over-incarceration if a conditional sentence is consistent with the proportionality principle: see R. v. R.N.S. , 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21. [126] After Nur struck down the mandatory minimum, a conditional sentence is statutorily available for offences under s. 95. As persuasively laid out in Anderson (NSCA) , a carefully fashioned conditional sentence that is responsive, both to the needs of denunciation and deterrence and the rehabilitative potential of the offender, can, in some situations, be a fit sentence for a s. 95 offence: see also R. v. Shunmuganathan , 2016 ONCJ 519; R. v. Dalton , 2018 ONSC 544 . [127] A conditional sentence, like that described in Anderson (NSCA) , at paras. 126-41, can only be available if counsel provides the court with the information needed to warrant the imposition of a conditional sentence. Not only must the information speak to the offender’s circumstances, it must include proposed terms which will meaningfully address the need for deterrence, denunciation, and ongoing supervision of the offender. The information provided by counsel on sentence must give the sentencing judge reason to believe the offender is committed to the terms of the proposed conditional sentence. [128] Counsel’s efforts alone will of course not be enough. The resources needed by counsel to properly put forward this kind of information must be available, as must the resources needed to effectively implement a conditional sentence tailored to the needs of the offender like the sentence in Anderson (NSCA) . The proposed federal legislation, combined with commitments made in the government’s 2020 economic statement, suggest the previous government intended to make the necessary resources available. Hopefully, that commitment will be renewed and acted upon in the immediate future: see Bill C-22, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act , 2nd Sess., 43rd Parl., 2021; see also Canada, Supporting Canadians and Fighting COVID-19: Fall Economic Statement 2020 (Ottawa: Department of Finance, 2020), at p. 85. 3F [4] [129] The use of conditional sentences when sentencing young Black offenders, in appropriate cases, also carries the added advantage of addressing, at least as it relates to the offender before the court, the ongoing systemic problem of the over-incarceration of young Black offenders. [130] Restraint also operates in another way. Even if the sentencing judge decides incarceration is necessary, there is still a question of how long the sentence should be. A sentence of more than two years excludes the possibility of probation: Criminal Code , s. 731. If the sentencing judge determines that the range of sentence for the particular offence and offender includes a two-year sentence and that probation would assist the offender’s rehabilitation, the restraint principle favours imposing a sentence of no more than two years, even if a somewhat longer period of incarceration would also fall within the appropriate range. [131] As indicated in R. v. Smickle , 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30, additional reasons, 2014 ONCA 49, 306 C.C.C. (3d) 351, sentences at or just below the two-year mark may be appropriate for some s. 95 offences. When the sentencing judge determines that an appropriate sentence is in that range, counsel and the sentencing judge must fully explore various options which could eliminate or reduce the offender’s period of actual incarceration while still giving effect to the proportionality principle. B. The Admissibility of the Report and Evidence of Ms. Sibblis [132] We have already summarized the substance of Ms. Sibblis’s report and her testimony (see paras. 44-52). The Crown’s complaint with respect to the admissibility of Ms. Sibblis’s report and testimony is a relatively narrow one. Counsel submits that, although Ms. Sibblis was tendered as an expert witness, she was not properly qualified at the sentencing proceeding. Neither her areas of expertise, nor the specific subject matters on which she was qualified to give opinion evidence were identified. Consequently, argues the Crown, her report and testimony roam over a wide variety of subjects, some of which required that she be properly qualified as an expert. For example, the Crown argues that Ms. Sibblis was not properly qualified to give opinion evidence, either about Mr. Morris’s state of mind, or any mental disorder he may have suffered from at the relevant time. [133] The Crown’s argument should be considered in the context of the applicable evidentiary provisions in Part XXIII of the Criminal Code . Those provisions swing the evidentiary door open on sentencing. The rules of evidence are relaxed to facilitate the production of any information that could help the sentencing judge arrive at a fit sentence. Given the highly individualized nature of the sentencing inquiry, the concept of relevance captures a broad band of information: see Criminal Code , ss. 723, 726.1. [134] Information that sheds light on the offender’s background, character, and circumstances, or helps explain why the offender committed the offence, is relevant on sentencing and potentially admissible. Much of the information provided by Ms. Sibblis goes to the appellant’s background, character, and circumstances. She tells Mr. Morris’s life story as a young Black man growing up and living in Toronto. [135] The biographical information tracing Mr. Morris’s life experiences laid out in the Sibblis Report was clearly admissible on sentencing. That information included primary source documents and statements from Mr. Morris and others close to him, including his mother. Although much of the information was hearsay, the trial judge could rely on that information if he concluded it was credible and trustworthy: R. v. Gardiner , [1982] 2 S.C.R. 368, at p. 414. No particular expertise was required for Ms. Sibblis to chronicle Mr. Morris’s background history and circumstances. To the extent that the Sibblis Report chronicles Mr. Morris’s life, it is not unlike a presentence report, although it is much more thorough and detailed than most presentence reports. [136] The Sibblis Report does go on to connect Mr. Morris’s disadvantaged upbringing and circumstances to overt and systemic anti-Black racism. Ms. Sibblis offers her assessment of the impact of that connection on the choices Mr. Morris has made throughout his life, and on his outlook for the future. The disadvantages suffered by Mr. Morris are part of his background and character and are relevant to determining the appropriate sentence. Ms. Sibblis’s opinion that anti-Black racism plays a role in the existence and impact of those disadvantages is also relevant to determining the fit sentence. An explanation for a disadvantage or circumstance which played a role in the offender’s commission of the offence can shed light on how that disadvantage should be taken into account on sentencing. [137] The parts of the Sibblis Report that draw a connection between systemic factors and Mr. Morris’s commission of the offences have much in common with Gladue reports. The Sibblis Report is helpful for some of the same reasons that Gladue reports have proven to be helpful when sentencing Indigenous offenders. As with Gladue reports, the Sibblis Report places Mr. Morris’s history and circumstances in a social context which enhances the sentencing judge’s understanding of Mr. Morris. A better understanding of the offender is always a good thing on sentence. [138] A report very similar to the Sibblis Report was admitted without objection in Jackson . Similar reports (IRCAs) are regularly admitted in Nova Scotia criminal courts. In Anderson (NSCA) , the Nova Scotia Court of Appeal strongly endorses the use of IRCAs in sentencing, especially for young Black offenders. As the court in Anderson (NSCA) notes, at para. 83, the federal government has recently endorsed the use of IRCAs and proposes to provide funding for them. [139] We accept that, in some respects, offering an opinion that draws the connection between an offender’s lived experiences and the impact of anti-Black racism will require expertise. Ms. Sibblis’s academic and clinical experiences provided that expertise. She was competent to offer an opinion as to the connection between anti-Black racism and Mr. Morris’s involvement in the criminal justice system. [140] Parts of the Sibblis Report and her evidence arguably offered opinions with respect to matters that went beyond Ms. Sibblis’s apparent expertise. Some of her comments about the extent and effect of Mr. Morris’s physical injuries suffered in 2013, as well as her opinions about Mr. Morris’s mental state and his specific state of mind, arguably required expertise beyond that which is self-evident from a review of Ms. Sibblis’s credentials. [141] Even if Ms. Sibblis was not qualified to offer certain opinions about Mr. Morris’s mental state, or the extent of his physical injuries, the Crown was not prejudiced by the opinions she gave. The trial judge had ample evidence, apart from Ms. Sibblis’s opinion, to support the conclusion that Mr. Morris had significant emotional difficulties. The trial judge was entitled to accept the psychiatric report prepared 11 months before the offences. That report suggested a diagnosis of post-traumatic stress disorder (“PTSD”). The Sibblis Report provided information from Mr. Morris about his mental state in the ensuing period. According to him, he continued to experience the same intense and ongoing fears, and sense of hopelessness he had related to the psychiatrist. The trial judge could accept Mr. Morris’s statements, as reported by Ms. Sibblis. Those statements supported the continuing applicability of the psychiatric diagnosis. [142] Similarly, apart from Ms. Sibblis’s opinions about Mr. Morris’s physical injuries and their ongoing effect, the documentation established the seriousness of those injuries. It was open to the trial judge to conclude those injuries continued to present serious problems for Mr. Morris. [143] It would have been better had counsel specifically identified for the trial judge the areas of Ms. Sibblis’s report with respect to which the Crown maintained there were legitimate doubts as to her qualifications to offer the opinions contained in the report. After hearing argument on the contested areas of the report, the trial judge could have determined the areas in which Ms. Sibblis was entitled to give expert opinion evidence. In doing so, the trial judge would have set the parameters of her testimony and identified the parts of her report, if any, that went beyond her expertise and would not be considered by the trial judge. This approach would have served the same purpose as a formal voir dire , but in a more expeditious manner, well-suited to the introduction of evidence on sentencing. [144] We would add one further observation with respect to reports like the Sibblis Report. Persons authoring presentence reports and Gladue reports are required to present an objective and balanced picture of the offender for the court: R. v. Lawson , 2012 BCCA 508, 294 C.C.C. (3d) 369, at para. 28. Persons preparing social context reports are under the same obligation. Ms. Sibblis acknowledged this obligation. [145] To maintain that objectivity, the report cannot purport to speak for the offender or advocate on the offender’s behalf. A social context report must also distinguish between facts and an offender’s perceptions and beliefs as stated to the author. Both perceptions and facts are important, but they are not the same thing. For example, an offender’s assertion he was mistreated by the police and correctional authorities and subject to unreasonable bail terms cannot be presented as facts in the report. This caution is especially important when the offender, like Mr. Morris, has been found by the judge and the jury to have made serious false allegations of police misconduct while under oath. [146] A properly prepared social context report must also carefully consider the information available in the primary source documents collected. Any claim that a particular event or incident is explained by institutional bias can only be objectively assessed by reference to the actual events as revealed in reliable primary source documents such as medical records. For example, the Sibblis Report suggests that the failure to follow-up on Mr. Morris’s diagnosed psychiatric issues may have been a reflection of systemic racism. The medical records, however, indicate that the psychiatrist did prescribe medication and follow-up psychotherapy. Mr. Morris chose not to take the medication or go back to the psychiatrist for the psychotherapy. [147] Reports like the Sibblis Report are not commonly used in Ontario. We agree with the Nova Scotia Court of Appeal in Anderson (NSCA) that the reports can be of great assistance to a sentencing judge. Hopefully, their preparation can be adequately funded and they will become a common feature of sentencing in Ontario in appropriate cases. We are confident that with more experience in preparing these reports, and added guidance from the courts, authors of these reports will appreciate the need to present an objective assessment, while avoiding appearing to take on the role of advocate for the offender. C. The Alleged Errors in the Trial Judge’s Reasons [148] The Crown submits that the 12-month sentence imposed by the trial judge is demonstrably unfit and that the trial judge made errors in principle that had a material impact on the sentence. The Crown contends that either error justifies appellate intervention: Friesen , at paras. 25-26. As we are satisfied there were errors in principle, we will address the fitness of sentence from that perspective. (i) The Trial Judge’s Treatment of the Seriousness of the Offences [149] As indicated earlier (paras. 75-78), the trial judge erred in holding that systemic racism and its impact on Mr. Morris could mitigate the seriousness of the offences committed by Mr. Morris and, in doing so, reduce the significance of the objectives of denunciation and general deterrence in the fixing of an appropriate sentence. The seriousness of Mr. Morris’s crimes is not diminished by evidence which speaks to his reason for committing the crimes. Specifically, the explanation offered by counsel and accepted by the trial judge for Mr. Morris’s possession of the gun, his flight from the police, and his disposal of the gun, while possibly relevant to his degree of personal responsibility, in no way reduced the seriousness of the offences, or the need to denounce in no uncertain terms Mr. Morris’s criminal conduct. [150] Although Mr. Morris was convicted of four gun-related charges, when considering the seriousness of his conduct, it is appropriate to focus on the s. 95 charge, the most serious of the four charges. That section prohibits the possession of a loaded restricted/prohibited firearm. [151] Section 95 criminalizes a broad range of conduct. Mr. Morris’s actions fall at the “true crime” end of the spectrum of the conduct prohibited by s. 95. As this court and, more importantly, the Supreme Court of Canada have indicated, crimes like those committed by Mr. Morris call for denunciatory sentences. In most cases, penitentiary terms will be required. In some situations, where there are strong mitigating factors, sentences at or near the maximum reformatory sentence (two years, less a day), may be imposed: see Smickle , at para. 30; Nur (ONCA) , at paras. 6, 17-23 and 206; and Nur (SCC) , at para. 82. [152] The trial judge imposed a sentence that was far below the range described in cases like Nur and Smickle . In doing so, he erred in principle by deprecating the seriousness of the offences committed by Mr. Morris and the need to unequivocally denounce the criminal conduct engaged in by Mr. Morris through the sentence imposed on him. [153] At the same time, the trial judge’s reasons overstate the impact of Mr. Morris’s circumstances on his ability to choose whether or not to arm himself with a loaded, concealed handgun. There is no evidence from Mr. Morris about how he came to carry around a loaded, concealed handgun. In fact, Mr. Morris insisted under oath he did no such thing. Absent any evidence from Mr. Morris as to why he came to arm himself, it simply cannot be assumed that he was armed because he thought he had little choice in the matter. [154] The evidence does, however, offer an explanation, rooted in the social context evidence, that explains why Mr. Morris made such a bad and dangerous choice. That explanation points to circumstances, many of which were not only beyond Mr. Morris’s control, but were in fact imposed on him as a consequence of systemic and overt anti-Black racism in various social institutions. (ii) Other Alleged Errors [155] The errors described above (paras. 149-54) had a material impact on the sentence imposed and are sufficient to warrant appellate intervention. We will, however, address some of the other aspects of the trial judge’s reasons. (a) The Finding of Remorse [156] The trial judge accepted that Mr. Morris was remorseful. There was evidence that Mr. Morris was sorry for the pain he had caused his mother, regretted the mess he had made of his life, and wanted to change. [157] Remorse can offer meaningful mitigation when accompanied by an acceptance of responsibility for one’s crimes. A combination of remorse and an acceptance of responsibility offers good reason to hope the offender will not reoffend. The trial judge appears to have appreciated that remorse offers meaningful mitigation only when accompanied by an acceptance of responsibility. [158] Nothing in this record is capable of supporting a finding that Mr. Morris took any responsibility for his crimes at any time in these proceedings. 4F [5] Mr. Morris denied committing the offences at trial. He falsely accused the police of planting the firearm and other serious misconduct, both in his evidence on the stay motion and in his evidence before the jury. He said nothing on sentencing to resile from the false evidence he gave at trial. [159] Mr. Morris, of course, cannot be punished on sentencing for denying the allegations or falsely accusing the police of serious misconduct. However, both are relevant when considering whether Mr. Morris took any responsibility for his actions. Nothing in the Sibblis Report, or in Mr. Morris’s statement at sentencing, suggests he was prepared to take responsibility for anything. A refusal to acknowledge, much less take responsibility for, criminal conduct, did not augur well for Mr. Morris’s rehabilitative potential and raises real concerns about the risk that he will reoffend. [160] The trial judge appreciated that the sentence he imposed was a lenient one. He did not consider whether Mr. Morris’s failure to take any responsibility for his criminal conduct rendered a lenient sentence inappropriate in the circumstances. (b) The Trial Judge’s Treatment of Mr. Morris’s Reasons for Possession of the Handgun [161] The trial judge was satisfied that Mr. Morris had the loaded handgun, at least in part, because of his precarious mental state. On the trial judge’s findings, Mr. Morris constantly feared for his life in his community. He felt helpless and saw nothing positive in his future. [162] The trial judge also accepted there was no evidence Mr. Morris had the loaded gun for any specific criminal purpose. We take this to mean there was no evidence Mr. Morris was involved in criminal activity and used the gun as a tool of that trade. [163] Both findings were open to the trial judge. With respect to Mr. Morris’s mental state, the trial judge had Mr. Morris’s description of his state of mind, as provided to Ms. Sibblis, the psychiatric report from January 2014, and undisputed evidence concerning specific traumatic events, including two prior stabbings. With respect to the conclusion there was no basis to find he had the gun for an ulterior criminal purpose, the trial judge relied on the character evidence offered on behalf of Mr. Morris at sentencing. Mr. Morris also had no criminal record. [164] Both factors identified by the trial judge offered some mitigation of Mr. Morris’s personal culpability and blameworthiness. The trial judge recognized this mitigation, but also concluded that Mr. Morris’s reasons for possessing a loaded, concealed handgun lessened the need to denounce Mr. Morris’s conduct. [165] The trial judge erred in holding that Mr. Morris’s explanation for possessing the loaded, concealed handgun rendered denunciation less important. Mr. Morris’s explanation in no way diminished the dangerousness of his conduct, or the harm it caused to the community. [166] The explanation accepted by the trial judge for Mr. Morris’s possession of the loaded handgun had to be taken into account, along with other mitigating factors, when assessing the personal culpability component of the proportionality inquiry. The social context evidence accepted by the trial judge put Mr. Morris’s choice to carry a loaded, concealed handgun in a light that reduced his personal culpability. That same evidence offered valuable insights into Mr. Morris’s background and character and, in particular, his potential for rehabilitation that had to be taken into account when blending the various objectives of sentencing. (c) The Flight from the Police and the Disposal of the Gun [167] In his reasons on the motion to stay the proceedings (summarized above, at paras. 26-32), the trial judge found that he was not satisfied Mr. Morris knew the plainclothes officers, who initially attempted to stop him, were police officers. The trial judge was, however, satisfied that Mr. Morris knew the uniformed officer chasing him across the No Frills parking lot was a police officer. Mr. Morris did not stop, but on the trial judge’s findings continued to run until he was caught and tackled by the police officer. The trial judge further held that Mr. Morris disposed of the loaded handgun in the stairwell of the parking lot while running from the uniformed police officer. [168] The trial judge declined to treat Mr. Morris’s flight from the police or the disposal of the loaded handgun in a public area as aggravating factors on sentence. He described both as “reflexive” and “impulsive” reactions to the confrontation with the police. On the trial judge’s reasoning, that reaction was explained in part by Mr. Morris’s fears and distrust of the police. His fear and mistrust were in turn the product of the systemic anti-Black racism engrained in the policing of communities like the one Mr. Morris had grown up in. [169] The trial judge made his findings as to why Mr. Morris ran in the absence of any such evidence from Mr. Morris. Mr. Morris had falsely denied running from the uniformed officer, claiming he had stopped as soon as he saw that it was a police officer. [170] On the trial judge’s findings, Mr. Morris’s flight from the plainclothes officers cannot be treated as an aggravating factor. However, his decision to continue to run once he knew he was being chased by a police officer does increase the seriousness of the offence. This is so for two reasons. First, fleeing from the police while in possession of a loaded handgun increases the risk of a confrontation, during which the weapon may be discharged deliberately, or even accidentally. Either substantially increases the risk to the public. Second, Mr. Morris’s decision to run while armed with a loaded handgun endangered the safety of the police officers who were engaged in the lawful execution of their duty. Doing so aggravates the seriousness of the offence. [171] We would also hold that the trial judge made an unreasonable finding of fact when he concluded Mr. Morris’s flight and disposal of the gun was an “impulsive reaction” caused by his fear of the police and a concern he would not be treated fairly. The trial judge’s analysis ignores that Mr. Morris was in the act of committing a serious crime when confronted by the police. He had to know that if caught with a loaded gun, he would be arrested and incarcerated. Mr. Morris chose to run and attempted to dispose of the weapon out of the sight of the police before he was apprehended. The only reasonable inference is that Mr. Morris ran and disposed of the gun in an effort to avoid being caught and charged with a serious crime. [172] The trial judge also made an error in concluding the disposal of the handgun in a public place was not “a weighty aggravating factor” in this case. The trial judge discounted the significance of that factor because the place where the gun was thrown was not “easily accessible to a passerby or innocents.” On the evidence, Mr. Morris threw the gun away in a public stairwell located in a parking lot of a grocery store. The stairwell was readily accessible by the public, even if it was not used a great deal. In any event, leaving a loaded firearm anywhere in a public space is clearly a significant aggravating factor. (d) The Mitigation for the Breach of Mr. Morris’s Charter Rights [173] The trial judge reduced the sentence by three months on account of the breach of Mr. Morris’s rights under ss. 7 and 10(b) of the Charter . Those breaches are described above (see paras. 28-32). The trial judge was particularly concerned with the breach of s. 7, which involved one of the plainclothes officers driving over Mr. Morris’s foot in his attempt to detain Mr. Morris. The trial judge did not invoke s. 24(1) of the Charter , but relied on the principle that state misconduct can mitigate sentence. [174] All parties agree that a trial judge can reduce a sentence to take into account state misconduct relating to the circumstances of the offence or the offender: Nasogaluak , at paras. 3, 47. Excessive use of force in the course of detaining or arresting an individual, even if the arrest or detention is for a different offence than the offence ultimately prosecuted, can constitute state misconduct relating to the circumstances of the offence or offender. [175] The trial judge was satisfied the officer’s excessive use of force was sufficiently serious to warrant a reduction in the sentence. In addressing the seriousness of the misconduct, the trial judge relied, not only on the physical consequences suffered by Mr. Morris, but on the negative impact the aggressive police conduct had on the perception of the police within the community. The trial judge concluded that some mitigation of the sentence would recognize the reality of that perception. [176] The trial judge properly identified the principle laid down in Nasogaluak . On the findings he made, it was open to him to invoke the principle from Nasogaluak in crafting a fit sentence. This court must defer to those findings. D. The Appropriate Sentence [177] As the trial judge acknowledged, the seriousness of Mr. Morris’s crimes required a significant term of imprisonment. The possession of a loaded, concealed handgun in a public place, the flight from the police, and the disposal of the loaded weapon in a public place were all aggravating factors. As indicated earlier, we see no reason to depart from the range fixed in cases like Nur and Smickle . In most cases, at the “true crime” end of the spectrum, a penitentiary sentence will be necessary for a s. 95 offence. In some cases, sentences at or near a maximum reformatory sentence will be appropriate. [178] There are mitigating factors in this case favouring a sentence at the low end of the range. More importantly, Mr. Morris was a young first offender at the time of sentencing. He has strong emotional support from his mother and others who are close to him. As revealed in the Sibblis Report, Mr. Morris has many positive features, and rehabilitative potential. [179] The moral blameworthiness of Mr. Morris’s conduct is mitigated by his mental and physical health issues, as well as his educational and economic disadvantages. All of those factors are influenced by the systemic anti-Black racism Mr. Morris has experienced. The factors can only properly be understood, for the purposes of determining the appropriate sentence, by having regard to that context. The three-month deduction in the sentence to take account of state misconduct during the attempt to detain and arrest Mr. Morris can also be viewed as a mitigating factor for the purposes of fixing an appropriate range of sentence. [180] Taking into account the mitigating and aggravating factors, we think the trial judge could have imposed a sentence ranging from a sentence at or near the maximum reformatory term, to a penitentiary sentence of three years. When the appropriate sentencing range includes sentences at or below the two-year mark, a sentencing judge must give careful consideration to the imposition of a conditional sentence. As outlined earlier, conditional sentences, properly used, can ameliorate the longstanding problem of the over-incarceration of young Black men. [181] Mr. Morris was in custody on other charges when sentenced on these charges. Understandably, given the positions of the parties, no one suggested Mr. Morris should receive a conditional sentence. We would observe, however, that all other factors being equal, had Mr. Morris been before the courts exclusively on these charges and had a conditional sentence, like that ordered in Anderson (NSCA) , been available, the trial judge would have had to give that option serious consideration. [182] We also agree with the trial judge’s conclusion that a term of probation was necessary. Probation provided for an extended period of supervision and access to culturally-sensitive counselling. Both had the potential to further Mr. Morris’s rehabilitation and provide added long-term safety for the community. As probation can only be imposed if a period of incarceration is no more than two years, the restraint principle favoured a sentence of two years or less: see Criminal Code , s. 731. [183] Taking the factors set out above into account, we would grant leave to appeal, allow the appeal, and vary the sentence as follows: · On the s. 95 charge (count 3), we would impose a sentence of two years, less a day. Mr. Morris would be entitled to credit for pretrial custody on a 1.5:1 basis. We would also impose probation for 18 months on the terms set by the trial judge; · On the other two convictions (counts 2 and 4), we would impose concurrent sentences of 15 months. [184] In keeping with the Crown’s concession, this is an appropriate case in which to permanently stay the sentence with the exception of the ancillary orders made by the trial judge on sentencing. Those orders should remain in effect. Released: “October 8, 2021 JMF” “Fairburn A.C.J.O.” “Doherty J.A.” “R.G. Juriansz J.A.” “M. Tulloch J.A.” “David M. Paciocco J.A.” [1] The sentencing was adjourned several times, for various reasons, at the request of the defence. The hearing of the appeal was also delayed for a lengthy period for reasons beyond everyone’s control. [2] The court received fresh evidence indicating Mr. Morris had been charged with offences related to a home invasion robbery in April 2017 while on bail on these charges. He was held in custody. Mr. Morris pled guilty to those charges and in June 2019 received a sentence of 3 years, 5 months and 15 days after a credit of 32.5 months for pretrial custody. Mr. Morris was released on day parole in July 2020 and full parole in January 2021. He spent a total of approximately 3 years and 3 months in jail on these charges and the charges related to the home invasion. It would appear from Mr. Morris’s affidavit filed as fresh evidence, that although he continues to have significant problems, particularly with his health, he has taken responsibility for his criminal actions and made several positive steps to better himself and avoid future contact with the criminal justice system. [3] In Anderson (NSCA) , at para. 159, the court indicates “the use of denunciation and deterrence to protect societal values should be informed by a recognition of society’s role in undermining the offender’s prospects as a pro-social and law-abiding citizen.” If this passage means that deterrence and denunciation take on less significance in sentencing for serious crimes if society is somehow complicit in the circumstances relevant to the commission of the offence, we must, with respect and for the reasons set out, disagree with that conclusion. [4] Bill C-22 was introduced and passed first reading in the House of Commons before Parliament was dissolved on August 15, 2021. [5] The fresh evidence does indicate, that by the time Mr. Morris had been released on parole on his subsequent home invasion robbery sentence, he had come to accept responsibility for his criminal conduct.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Psarros, 2021 ONCA 706 DATE: 20211008 DOCKET: C68231 Rouleau, Benotto and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Peter Psarros Appellant Peter Psarros, acting in person Mark Halfyard, appearing as duty counsel Avene Derwa, for the respondent Heard: October 6, 2021 by video conference On appeal from the sentence imposed on February 27, 2020, by Justice Jonathan Bliss of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant has abandoned his conviction appeal. As for the sentence appeal, we agree with the appellant’s submission that the sentence should be reduced. [2] Having recognized that the appellant was entitled to credit for 152 days of pretrial custody, the sentencing judge ought to have given him credit for this time at the rate of 1.5 to 1. He did not do so and gave no reason why the usual credit should not apply. [3] As a result, leave to appeal the sentence and the sentence appeal are granted. The sentence is reduced by 76 days. The conviction appeal is dismissed. “Paul Rouleau” “M.L. Benotto J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Jefferies, 2021 ONCA 712 DATE: 20211008 DOCKET: C69343 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Jamie Jefferies Appellant Frank Addario, Sherif Foda, and Rick Frank, for the appellant Matthew Asma, for the respondent Amy Ohler and Eric Neubauer, for the intervener Criminal Lawyers’ Association Heard and released orally: October 6, 2021 On appeal from the order denying certiorari and prohibition entered by Justice C. Stephen Glithero of the Superior Court of Justice on March 16, 2021, with reasons reported at 2021 ONSC 1983. REASONS FOR DECISION [1] This is an appeal from the dismissal of an application for two forms of extraordinary relief. The application judge described the requests for relief as follows: An order in the nature of prohibition to prohibit any judge of the Ontario Court of Justice from proceeding to hold the trial of the accused upon the counts of aggravated assault, assault causing bodily harm, common assault, two counts of mischief and three counts of breach release order, contained in Information No. 19005445, sworn June 20, 2019, presently outstanding in that court. [and] An order to quash the ruling of the Honourable Justice A.T. McKay to conduct the trial of R. v. Jamie Jefferies remotely via video conference released on February 18, 2021. [2] The application was dismissed on jurisdictional grounds. [3] Since the dismissal of the application for extraordinary relief, upon which this appeal is predicated, the appellant’s request for a full in-person trial has been accommodated. The appellant acknowledges today that his trial will continue in person on October 18, 2021, and it is his intention to proceed with that trial, regardless of any order this court may make, including if this court decides to hear the appeal today. In our view, in light of that concession, the appeal is moot. [4] Despite the fact that this court may find the appeal moot, the appellant still urges the court to hear the appeal because of what is said to be the strong public interest engaged. We decline to do so because: 1) The record in this case is wanting in relation to the issues the appellant asks to be decided. 2) The issues to be decided are not evasive of review in the context of the normal appellate process. 3) There is no evidence before us that would suggest a systemic problem that requires immediate resolution in the public interest. For example, there does not appear to be any serious, ongoing controversy over the limits of judicial authority in utilizing statutory provisions to excuse the attendance of justice system participants from criminal trials. 4) The appeal to this court is an appeal from a decision arising from an application for extraordinary relief and, as such, necessarily limits the scope of the appeal to this court. In our view, the issues raised on appeal are much better addressed in the context of a full appeal on the record. [5] The appeal is dismissed as moot. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Sealy-Ward, 2021 ONCA 714 DATE: 20211008 DOCKET: C67860 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Mark Sealy-Ward Appellant Eric Granger, for the appellant Genevieve McInnes, for the respondent Heard and released orally: October 4, 2021 by video conference On appeal from the convictions entered by Justice Michelle O’Bonsawin of the Superior Court of Justice on April 29, 2019, with reasons reported at 2019 ONSC 2647. REASONS FOR DECISION [1] This is an appeal from conviction for multiple drug and firearm related offences. [2] Police officers stopped a vehicle after it made an unlawful U-turn. After detecting the odour of cannabis, the vehicle occupants were ordered out of the vehicle and arrested. A search incident to their arrest uncovered a number of things in the vehicle, including a few pounds of cannabis, MDA, drug paraphernalia, and a disassembled rifle with ammunition. [3] The appellant was tried before a judge alone. In a blended Charter voir dire , he claimed breaches of his ss. 7, 8, 9, 10(a), and 10(b) rights. The trial judge provided extensive written reasons dismissing the Charter application. She also provided extensive written reasons for conviction. [4] This conviction appeal is predicated upon two alleged errors. [5] First, the appellant says that the trial judge failed to provide adequate reasons dismissing the Charter motion. Specifically, he claims that the trial judge failed to adequately address inconsistencies in the police evidence. [6] While we accept that there were inconsistencies in that evidence, the trial judge was under no obligation to describe and reconcile every such inconsistency. Rather, it was the trial judge’s duty to respond to what was relevant to the Charter application. She did that. [7] The trial judge turned her mind to the central issues involving: (1) why the vehicle was stopped and (2) why the appellant was originally removed from the car and arrested. The trial judge concluded that the officers’ evidence was consistent on key points involving the U-turn, all of which justified the vehicle stop. The trial judge also turned her mind to the differences between the officers in terms of how they described the smell emerging from the vehicle. One described it as the smell of fresh vegetative cannabis, while the other described it as the smell of both burnt and fresh vegetative cannabis. The trial judge explained why this inconsistency (one officer adding that he also smelled burnt cannabis) did not impact her assessment of the grounds for arrest. In our view, the trial judge’s reasons on these points are more than adequate. [8] The appellant also claims that the trial judge’s reasons for judgment fall short in the sense that she misapprehended evidence that had a material impact on the verdicts. Specifically, the trial judge is said to have misapprehended evidence as it relates to the location from which the appellant’s wallet was seized and the location where a padlock was found. [9] The respondent concedes the appellant’s first point, acknowledging that the trial judge appears to have incorrectly formed the view that the appellant’s wallet was found in the same knapsack that drugs and drug paraphernalia were located. The respondent acknowledges that is not so. The appellant’s wallet was actually seized during a search of his person. [10] Despite this misapprehension of evidence, we are satisfied that it had no impact on the verdicts. [11] The fact is that there was overwhelming evidence pointing to the appellant’s possession of the contraband found in the vehicle. That evidence includes the fact that the appellant’s former partner testified that, while the vehicle was registered under her name, it was owned by the appellant. There was also police evidence that they saw the appellant attempting to get into the driver seat of the vehicle upon the vehicle being stopped. That is, when the appellant saw the police, he changed his position with another vehicle occupant. There is also evidence of a combination lock having been found in a duffle bag in the trunk of the car. That bag contained a good deal of contraband. Importantly, the code to the combination lock that was found in that bag was located in the appellant’s wallet. This connected him directly to the duffle bag. [12] While the appellant claims that the trial judge misapprehended the evidence about the padlock, suggesting that there was no evidence to adequately support that it had been located in the duffle bag, that submission is belied by the record in this case. Therefore, in our view, there is no basis for the suggestion that the trial judge misapprehended the evidence about the padlock in this way. [13] Combined with the other evidence of possession and control, there was a substantial evidentiary basis upon which to convict. [14] The appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt 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. Simas-Mamani, 2021 ONCA 711 DATE: 20211008 DOCKET: C67388 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Zamir Simas-Mamani Appellant Craig Zeeh, for the appellant Erica Whitford, for the respondent Heard and released orally: October 4, 2021 by video conference On appeal from the conviction entered by Justice Thomas Lofchik of the Superior Court of Justice on July 5, 2018 and the sentence imposed on July 27, 2018, with reasons reported at 2018 ONSC 4558. REASONS FOR DECISION [1] The sole ground of appeal from conviction is the dismissal of a mid-trial application under s. 276 of the Criminal Code , R.S.C., 1985, c. C-46. We see no error in the trial judge’s exercise of his case management powers, dismissing this late-breaking application brought for the first time during the cross-examination of the complainant. [2] In any event, we see no basis upon which the application, as constituted at trial, could possibly have succeeded. [3] The conviction appeal is dismissed. [4] As well, we dismiss the sentence appeal. Although some mitigating factors were not specifically mentioned by the trial judge in the reasons for sentence, those factors would not have warranted a reduction in the eight-year sentence imposed, a sentence that was entirely fit in the circumstances. [5] Leave to appeal sentence is granted. The sentence appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

WARNING An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect.  This section of the Criminal Code provides: 517(1)         If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (a)     if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b)     if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. Failure to comply (2)     Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction. (3)     [Repealed, 2005, c. 32, s. 17] R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Williams, 2021 ONCA 705 DATE: 20211008 DOCKET: M52774 Strathy C.J.O. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Robert Williams Applicant Zachary Kerbel, for the applicant Karen Papadopoulos, for the respondent Heard: September 22, 2021 by video conference [1] A non-publication order under s. 517 of the Criminal Code , R.S.C. 1985, c. C-46, was imposed in this matter at the bail hearing in the court below. That order precludes the publication, broadcast, or transmission of any evidence taken, information given, representations made, and reasons given. [2] The decision in R. v. Williams , 2021 ONCA 705, 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: Sbihat v. Nasar, 2021 ONCA 701 DATE: 20211008 DOCKET: C68867 Hourigan, Huscroft and Coroza JJ.A. BETWEEN Sameh Sbihat Plaintiff/Appellant and Loay Abu Nasar, Darshan Singh Toor, Carmel Transport International Ltd. and AJM Toor Group Inc. Defendants/Respondents Todd J. McCarthy and Richard J. Campbell, for the appellant David Zuber and Allison Pressé, for the respondents Heard: October 6, 2021 by videoconference On appeal from the order of Justice Mandhane of the Superior Court of Justice, dated November 10, 2020. REASONS FOR DECISION Introduction [1] This action arose out of a motor vehicle accident that occurred on April 28, 2016. The statement of claim was issued on April 23, 2018. The defendants Darshan Singh Toor and Carmel Transport International Ltd. were served with the statement of claim in January or February 2020 – approximately 16 months after the six-month deadline prescribed by r. 14.08(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. The defendant AJM Toor Group Inc. was never served. [2] The appellant moved to validate service and extend the time for service. In his affidavit filed on the motion, the appellant’s former counsel explained that the non-service was caused by inadvertence and the failure of his staff to follow instructions. The motion was not opposed by the respondent Nasar. However, it was opposed by the remaining respondents (the “Toor Respondents”). [3] The motion was initially scheduled for October 2020, but the appellant’s former counsel could not proceed on that date for medical reasons. The Toor Respondents consented to an adjournment on the understanding that the motion would be argued on the record already filed with the court. The appellant’s former counsel agreed to this undertaking in writing. Despite that agreement, the appellant’s former counsel served and filed a supplementary affidavit six days before the motion was to be argued. [4] The motion was ultimately heard on November 10, 2020. The motion judge had to consider two issues: (1) whether to admit the appellant’s supplementary affidavit, and (2) whether to validate service and grant the extension of time for service. [5] The motion judge refused to consider the appellant’s supplementary affidavit because the appellant had previously consented not to file additional materials. Accordingly, she held that it was improper for the appellant to attempt to resile from that agreement. [6] Ultimately, the motion judge dismissed the motion. She found that the court should not extend the time for service where to do so would prejudice the respondents, and the onus was on the appellant to show that there was no prejudice. According to the motion judge, the appellant had provided an insufficient explanation for the delay and had adduced no evidence of a lack of prejudice beyond a bald assertion that the respondents would suffer no prejudice. The motion judge further found that the Toor Respondents would suffer actual prejudice in their ability to conduct investigations, preserve evidence, and obtain timely medical assessments. Issues [7] The appellant makes two submissions on this appeal. First, he argues that this court should admit fresh evidence.  Second, he submits that the motion judge erred in refusing to validate service and extend the time for service. Analysis (i) Fresh Evidence [8] Although the appellant brings a motion for leave to file fresh evidence, it is a misnomer to label the proposed evidence as fresh because it was filed on the motion. It consists of two affidavits. The first was sworn by the appellant’s former counsel and includes court filings in a related action arising from the same motor vehicle accident, along with correspondence between the appellant’s former counsel and the insurer for the Toor Respondents. The motion judge rejected this affidavit. The second affidavit is sworn by a clerk in the Toor Respondents’ counsel’s office. It attaches correspondence memorializing the agreement between counsel that no further material would be filed following the adjournment. [9] The jurisprudence regarding the filing of fresh evidence is of no assistance, given that the evidence was clearly available on the return of the motion. The operative question is whether the motion judge erred in rejecting this evidence.  In our view, she did not. On the record before her, it was clear that the parties had reached an agreement that no further material would be filed. The motion judge was correct in holding the parties to that agreement. (ii) Extension of Time for Service [10] In considering this ground of appeal, we accept the submission of counsel for the appellant that we may have regard to the pleadings filed in the companion action.  These pleadings establish that the insurer for the Toor Respondents was made aware of the accident and was in a position to investigate issues of liability and damages regarding the plaintiff in that action.  The insurer’s knowledge of the accident is further confirmed by its receipt of the Motor Vehicle Accident Report, which was filed in the material before the motion judge. Further, that report also gave the insurer constructive notice of the appellant’s claim because he was listed as an involved person. [11] In our view, the motion judge erred in her analysis of whether to validate service and extend the time for service in two respects. [12] First, the motion judge made a palpable and overriding error of fact in finding that there was not a sufficient explanation for the delay in service. The unchallenged evidence filed on the motion made clear that the delay was attributable to the former counsel’s inadvertence. [13] Second, in her prejudice analysis, the motion judge failed to consider that the insurer for the Toor Respondents had notice of the accident and the fact that the appellant was an involved person. This evidence was sufficient to meet the appellant’s onus of establishing that the Toor Respondents would suffer no prejudice if the order sought were granted. In those circumstances, the onus shifted to the Toor Respondents to demonstrate why they would suffer prejudice despite their knowledge of the accident and the appellant’s involvement. [14] On the evidence before us, there is nothing to suggest that the Toor Respondents have been hindered in any way in investigating the nature and extent of the appellant’s injuries. Plainly, they have had an opportunity to consider liability issues in the related action. [15] When these errors are corrected, it is evident that the appellant has met the test to validate service and extend the time for service of the statement of claim. Disposition [16] For the foregoing reasons, the motion to admit fresh evidence is dismissed, and the appeal is allowed.  The order of the motion judge is set aside. In its place, an order shall issue validating the late service of the statement of claim. The deadline for serving the statement of claim on any defendants who have not been served is extended to thirty days from the date of this endorsement. As a term of this order pre-judgment interest shall not begin to run until February 7, 2020.  Regarding costs, in accordance with the agreement of counsel, we award the appellant $5,500 for the costs of the motion below and $7,500 for the costs of the appeal. Both amounts are all-inclusive. “C.W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”

WARNING The court directs that the following should be attached to the file: NOTICE OF PUBLICATION BAN An order restricting publication in this proceeding imposed under ss. 45(3) and 47 of the Health Professions Procedural Code (the “ Code ”), Schedule 2 to the Regulated Health Professions Act, 1991 , S.O. 1991, c. 18 shall continue. In the College of Massage Therapists of Ontario and Jose Alberto Tena Schoelly, the Discipline Committee ordered under ss. 45(3) and 47 of the Code that no person shall publish, broadcast or otherwise disclose any information that would identify the complainant. Subsection 93(1) of the Code addresses a failure to comply with these orders: Every person who contravenes an order made under … section 45 or 47… is guilty of an offence and on conviction is liable, (a) in the case of an individual to a fine of not more than $25,000 for a first offence and not more than $50,000 for a second or subsequent offence; or (b) in the case of a corporation to a fine of not more than $50,000 for a first offence and not more than $200,000 for a second or subsequent offence. COURT OF APPEAL FOR ONTARIO CITATION: College of Massage Therapists of Ontario v. Schoelly, 2021 ONCA 655 DATE: 20210922 DOCKET: C68756 Strathy C.J.O., Pepall and Pardu JJ.A. BETWEEN College of Massage Therapists of Ontario Appellant and Jose Alberto Tena Schoelly Respondent Erica Richler and Anastasia-Maria Hountalas, for the appellant No one appearing for the respondent Heard and released orally: September 17, 2021 by video conference On appeal from the order of the Divisional Court (Justices Nancy L. Backhouse, Richard A. Lococo and Michael A. Penny), dated March 2, 2020, with reasons reported at 2020 ONSC 1348, allowing in part an appeal from a decision of a panel of the Discipline Committee of the College of Massage Therapists of Ontario, dated March 26, 2019. REASONS FOR DECISION [1] Counsel have advised that the appeal has been resolved on the basis that the respondent does not oppose the appeal and will accept the licence revocation ordered by the Discipline Committee. The appeal is therefore moot. [2] The appellant nevertheless asks that this Court hear its submissions and that we make a decision on the merits. While the appellant seeks a judicial precedent to serve as a guide in other cases, we decline to hear the appeal in the absence of an adversarial context. Nor is it an appropriate use of judicial resources to decide an issue that does not have any practical consequences for both parties. [3] On consent of the parties, an order will issue reinstating the order of the Discipline Committee of the College of Massage Therapists of Ontario dated March 26, 2019. In so ordering, we express no opinion on the conclusions or analysis of the Divisional Court. “G.R. Strathy C.J.O.” “S.E. Pepall J.A.” “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2619506 Ontario Inc., v. 2082100 Ontario Inc., 2021 ONCA 702 DATE: 20211012 DOCKET: C68814 Lauwers, Harvison Young and Sossin JJ.A. BETWEEN 2619506 Ontario Inc. , Respondent (Plaintiff) and 2082100 Ontario Inc. , Samuel Davis and Farhan Absar Appellants (Defendants) and 2619506 Ontario Inc. , Vaishali Paralekar and Jayesh Paralekar Defendants to the Countercl aim Martin Diegel, for the appellants Alexander Hora, for the respondent Heard: October 1, 2021 by video conference On appeal from the judgment of Justice Shaun O’Brien of the Superior Court of Justice, dated November 13, 2020, with reasons reported at 2020 ONSC 6817. REASONS FOR DECISION [1] This appeal arises from an order dated November 13, 2020, granting summary judgment to the respondent, finding that its notice of rescission was effective to rescind its franchise agreement with the appellants. The motion judge held that the financial disclosure document (FDD) the appellants provided was so deficient as to amount to no disclosure at all pursuant to s. 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000 , S.O. 2000, c. 3 [the Act]. The motion judge also found that both Mr. Davis and Mr. Absar met the definition of franchisor’s associates under s.1(1) the Act and that they were jointly and severally liable for damages pursuant to s. 6(6). [2] Briefly, the appellants and the respondent executed a franchise agreement in May 2018 pursuant to which the respondent 2619506 Ontario Inc, through its president, Vaishali Paralekar, became a franchisee of the franchisor’s “Fit for Life” chain of quick service restaurants. After Ms. Paralekar began operating, she found that the sales were much lower than expected. After trying to sell the franchise, she ultimately served a notice of rescission through her counsel in May 2019. [3] The appellants raise two main grounds of appeal. First, they argue that the motion judge misapplied the “informed investment decision test” in finding that the deficiencies in the disclosure document amounted to absence of disclosure, thus allowing rescission pursuant to s. 6(2) of the Act within two years. In particular, they argue that Raibex Canada Ltd. v. ASWR Franchising Corp ., 2018 ONCA 62, 419 D.L.R. (4th) 53 obliged her to conduct a more detailed analysis of whether a potential franchisee is able to make a properly informed investment decision. The motion judge’s failure to do so constituted a reversible error of law. [4] Second, they submit that the motion judge erred in finding that the appellants were “franchisor’s associates” pursuant to ss.1(1) and 6(6) of the Act. Third, and relatedly, they argue that the motion judge erred in imposing joint and several liability upon both Mr. Davis and Mr. Absar. [5] For the following reasons, we conclude that that the appeal must be dismissed. [6] We do not agree that the motion judge erred in her articulation or application of the test under s. 6(2). We do not agree that this is an extricable question of law attracting a correctness standard of review. Rather, it raises a question of mixed law and fact, thus attracting the standard of palpable and overriding error: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 36-37. [7] In applying the informed investor test, the motion judge considered both the purpose of the Act and the evolution of the test. She began by observing that this court has repeatedly emphasized that the Act is intended to redress the imbalance of power between franchisors and franchisees and that it does so by imposing rigorous disclosure obligations on franchisors, with strict penalties for non-compliance: Salah v. Timothy’s Coffees of the World Inc. , 2010 ONCA 673, 268 O.A.C. 279, at para. 26; Mendoza v. Active Tire & Auto Inc. , 2017 ONCA 471, 139 O.R. (3d) 230, at paras. 13, 26; 6792341 Canada Inc. v. Dollar It Limited , 2009 ONCA 385, 95 O.R. (3d) 291, at para. 13. She continued with the following statement: Two guiding principles have emerged from the Court of Appeal with respect to the interpretation of s. 6(2) in particular. The first is that non-compliance with s. 5 of the Act does not always provide sufficient grounds for rescission under s. 6(2). As set out in Raibex Canada Ltd. v. ASWR Franchising Corp. , 2018 ONCA 62, at para. 46: “[a] franchisee that receives imperfect disclosure does not necessarily stand in the same position as a franchisee that was ‘never provided with a disclosure document.’ In Imvescor , at para. 73, this court warned that conflating those two scenarios would frustrate clear legislative intent….” [8] The motion judge also correctly observed at para. 18 that a purported disclosure document may be so deficient as to effectively amount to no disclosure, thereby permitting rescission under s. 6(2): Raibex, at para. 47. There is no doubt that financial disclosure is of the “utmost importance” in enabling a prospective franchisee to make a properly informed investment decision: Dollar It , at para. 35. In short, she was alive to and set out the appropriate test to be applied. [9] On the facts of this case, the only financial information provided to the respondents was unaudited 2016 financial statements, despite the clear requirement in the applicable regulation for the franchisor to include the 2017 financial statement, which it failed to do. Nor was there any evidence as to whether 2018 financial statements were available when the franchise agreement was executed. In any event, neither 2017 nor 2018 financial statements were ever provided. Nor was there any recent financial information at all, such as sales information for that location. The motion judge concluded that in the circumstances of this case, the absence of any recent financial information rendered the FDD so deficient as to amount to no disclosure at all. As a result, the Plaintiff was entitled to rescind under s. 6(2) of the Act. [10] In our view, the motion judge concisely and accurately set out the considerations to be taken into account and applied those to the facts before her in reaching her conclusion that the FDD was so deficient as to amount to no disclosure at all. [11] We also do not agree that the motion judge erred in finding that both Mr. Davis and Mr. Absar were “franchisor’s associates” as defined in the Act. [12] As was the case below, the counsel for Mr. Davis did not seriously pursue the argument that he was not an associate under the Act. As the sole director and shareholder, as well as the president and CEO of the franchisor, he directly controlled the franchisor and clearly falls within clause (a)(i) of subsection 6(6) of the Act as a person who controls the franchisor. As the person who signed the FDD disclosure certificate, he was “directly involved in the grant of the franchise”, falling within the conjunctive provision of clause (b)(i)(A). [13] The appellants argue that Mr. Absar, however, was merely an employee of the franchisor. Finding that Mr. Absar was a franchisor’s associate and imposing joint and several liability, would, they argue, open the door to finding that any employee, such as a receptionist answering telephone calls from potential franchisees could be found to be franchisor’s associates subject to joint and several liability. [14] As the motion judge concluded, Mr. Absar was not a mere employee. First, she found that he was “controlled by another person who also controls directly or indirectly the franchisor”, that is Mr. Davis. She reached this conclusion on the basis of the appellants’ own documents. The franchisor’s own organizational chart, and Mr. Absar’s e-mail signature, identified him as the Director of Franchising and Development for the Davis Group of companies, which included Fit for Life. Although the Davis Group was not itself a corporation, Mr. Davis was the head of the Davis Group and owned all of the Davis Group of companies. We see no error in her finding that Mr. Absar fell within the first part of the definition as he was controlled by a person, Mr. Davis, who controlled the franchisor. [15] In addition, we see no error with her finding that Mr. Absar met the second part of the definition in clause (b)(i)(B) because he made “representations to the prospective franchisee on behalf of the franchisor for the purpose of granting the franchise, marketing the franchise or otherwise offering to grant the franchise.” This finding was well grounded in the record. Mr. Absar advertised Fit for Life franchises to generate leads and met with potential franchisees to discuss their application. He acknowledged that he had been involved in the marketing of the specific franchise location in issue and that he had personal communications with Ms. Paralekar about the franchise. Her undisputed evidence was that she met with him to discuss her application and that he provided her with the FDD. [16] Finally, we see no error in the motion judge’s imposition of joint and several liability on both appellants. The appellants contend that the liability can be imposed on the franchisor “or” franchisor’s associate pursuant to s. 6(6). However, there was no suggestion before the motion judge that liability for damages should be imposed on any basis other than joint and several liability. Although the appellants cite 2122994 Ontario Inc. v. Lettieri , 2016 ONSC 6209, aff’d 2017 ONCA 830, in support of its position, we do not find this case to be of any assistance them. [17] Finally, the appellants submit that this matter should not have been determined on a motion for summary judgment because the affidavit evidence contained numerous inconsistencies. While it is true, as the motion judge recognized, that the parties did not agree on all factual matters, she found that there was no dispute about the primary facts upon which she decided the issues before her. Her reasons make it clear that she was careful to determine the issues before her on the basis of undisputed facts and we see no error in her determination that there were no genuine issues that required a trial: Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49. [18] The appeal is dismissed. Costs are payable by the appellants to the respondent in the amount of $8,600, inclusive of disbursements and HST. “P. Lauwers J.A.” “A. Harvison Young J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Burke v. Poitras, 2021 ONCA 703 DATE: 20211012 DOCKET: C68442 Rouleau, Hoy and Thorburn JJ.A. BETWEEN Natalie Burke Applicant (Respondent) and Shawn Poitras Respondent (Appellant) Gordon S. Campbell, for the appellant Judith Wilcox, for the respondent Heard: September 23, 2021 by video conference On appeal from the order of Justice Laurie Lacelle of the Superior Court of Justice, dated May 21, 2020, with reasons reported at 2020 ONSC 3162, and from the costs order, dated July 17, 2020, with reasons reported at 2020 ONSC 4389. REASONS FOR DECISION [1] The parties were married for 13 years and separated in 2014 after the respondent left the matrimonial home due to the appellant’s abusive conduct. The parties have three children. The oldest child lives primarily with the appellant and the parties share parenting time for the two younger children. [2] After the appellant repeatedly failed to respect his disclosure obligations and failed to comply with court orders requiring financial disclosure to the respondent, the appellant’s answer was struck. Except in relation to the issues of decision-making responsibility and parenting time, the decision to strike the appellant’s answer was confirmed by this court in Burke v. Poitras , 2018 ONCA 1025, 22 R.F.L. (8th) 266. As a result, the matter proceeded as an uncontested trial. [3] In lengthy reasons, the trial judge awarded the respondent child and spousal support including substantial arrears, an equalization payment and exclusive possession of the matrimonial home, among other relief. The trial judge also ordered that the appellant not be permitted to proceed with any future motions pertaining to the issues in the present litigation without leave of the court. [4] In our court, the appellant raises four grounds of appeal and seeks to file fresh evidence. He argues that the trial judge erred in: 1. failing to conduct an independent inquiry into the appellant’s trial participation rights; 2. failing to scrutinize the respondent’s evidence on a standard of balance of probabilities; 3. ordering spousal support to the respondent for an indefinite period of time and not providing for a review; and 4. awarding costs against the appellant. The fresh evidence application [5] The appellant seeks to introduce the affidavit of Alain Gravelle, a chartered accountant whose firm has provided accounting services to the appellant and his businesses for over a decade. The affidavit and attachments attempt to rebut the accounting evidence led by the respondent’s accounting expert at trial and accepted in the trial judge’s reasons and award. [6] We deny leave to file the fresh evidence. In our view, it does not meet the test from Palmer v. The Queen , [1980] 1 SCR 759. [7] The information contained in the proposed fresh evidence could, with due diligence, have been adduced at trial. In large measure, it consists of financial information about the appellant and his businesses that was not produced prior to trial in violation of the outstanding court orders. The appellant’s continued refusal to disclose this information led to the striking of his answer. Now, he seeks to circumvent that sanction by introducing evidence in the form of fresh evidence to critique the respondent’s accounting expert and the trial judge’s decision. [8] Not only did the appellant refuse to disclose the financial information required to properly determine his income and his business revenues, he also refused to instruct his accountants to cooperate with the respondent’s expert. Had the appellant allowed this cooperation, the information he now seeks to file would have been considered by the respondent’s expert and, to the extent it was relevant, included and commented on in his report. [9] The appellant cannot argue that we should now accept this evidence and rely on it and his accountant’s interpretation of that evidence to challenge the respondent’s accounting expert and the findings of the trial judge. The respondent’s accountant clearly explained the need to make assumptions given the absence of disclosure. It is not open to the appellant to now seek to introduce the very evidence he refused to disclose prior to trial to overturn the decision on appeal. The appellant’s participation rights [10] The appellant argues that the trial was unfair as he was provided with no opportunity to participate. In his submission, even a limited right of participation would have attenuated the alleged unfairness and led to a more balanced result. The appellant emphasizes his Grade 9 education and his lack of sophistication. He submits that he was unable to assert his participation rights because he was told he would need a lawyer and could not afford one. In his view, the trial judge ought to have allowed him to question the witnesses and test the evidence. [11] We disagree. By order dated May 17, 2018, the appellant’s answer was struck due to his failure to comply with the court’s disclosure order. The order did not provide him with a right to participate in the ongoing proceeding. Pursuant to the Family Law Rules , the appellant was not entitled to participate in the case in any way: O. Reg. 114/99. As noted above, the appellant’s appeal of the order striking his answer was dismissed. [12] Nonetheless, the Superior Court, on its own motion, set a date for a hearing prior to trial to determine whether the appellant ought to be provided with some degree of participation in the coming trial. The appellant was aware of the date of the hearing but chose not to appear. He claims he could not complete the paperwork but, as noted by the respondent, the appellant has no difficulty communicating with her by text message and operates a very successful business. As a result, the court ordered that no participation rights were to be afforded to the appellant. No appeal was taken from that order. [13] Although he was not allowed to participate, the appellant was present throughout the trial. The trial judge had, in our view, the discretion to vary the non-participation order and allow some degree of participation. However, the appellant did not move to vary the order and, given his disruptive conduct over the course of the trial and his continued refusal to comply with the disclosure orders, there was no basis to do so. As a result, we see no unfairness. Failing to scrutinize the respondent’s evidence [14] The appellant argues that the trial judge simply accepted the evidence tendered by the respondent at trial without analysis or scrutiny. In particular, the appellant argues that the evidence of the respondent’s accounting expert ought to have been rejected as it was largely based on speculation. [15] We do not agree. The trial judge carefully evaluated the evidence. The respondent’s accountant expert was quite clear as to when and on what basis he made assumptions as to the appellant’s income and expenses. For example, he concluded that the appellant used corporate income for personal expenses based, in part, on several expensive personal purchases on the appellant’s corporate credit card and bank account. Further, he noted that the appellant’s company did not distribute its income, nor did it require significant capital investments. In the absence of evidence to the contrary, the trial judge accepted the expert’s reasoning. She noted that retained earnings are not necessarily income, but that the appellant failed to provide evidence to rebut these assumptions. [16] Therefore, trial judge explained why she accepted the expert’s evidence and the basis for her findings. Based on the record, the trial judge’s conclusions are reasonable and we see no basis to interfere. Was the amount and duration of spousal support reasonable? [17] The appellant argues that it was not appropriate for the trial judge to simply adopt the calculations using the Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016) ( SSAG s) and to not provide for the termination of spousal support within a reasonable time. He reiterates that he has a Grade 9 education, whereas the respondent is a nurse in a supervisory position at the local hospital. In the circumstances, a lower amount of support ought to have been ordered for a definite duration. [18] We disagree. The trial judge considered the principles in Moge v. Moge , [1992] 3 S.C.R. 813, and determined that support on a compensatory basis was appropriate in the circumstances. She saw no reason to depart from the number generated from the SSAG s and noted that the marriage resulted in significant economic advantages to the appellant. We note that “indefinite” support simply means that the duration is not specified. The SSAG s stress that “indefinite” does not necessarily mean “permanent”. It only means that no time limit can be set at the time of the order or agreement: p. 28. [19] The trial judge’s reasons are fulsome in explaining how she reached these conclusions and are owed deference on appeal. We see no basis to interfere. Costs [20] The appellant argues that the award of costs in the amount of $217,229.25 after a three-day uncontested trial was excessive. [21] We would not interfere with the trial judge’s costs award. She provided detailed reasons for the award, accounting for the appellant’s conduct, including the breach of the disclosure orders, and found the amount of costs sought by the respondent to be just and proportionate. The appellant has not demonstrated any error in the trial judge’s exercise of discretion in that regard. Conclusion [22] For these reasons, the appeal is dismissed. Costs to the respondent fixed in the amount of $15,000 inclusive of disbursements and applicable taxes. “Paul Rouleau J.A.” “Alexandra Hoy J.A.” “J.A. Thorburn J.A.”

WARNING The judge hearing this motion directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. WARNING An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect.  This section of the Criminal Code provides: 517(1)         If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (a)     if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b)     if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. Failure to comply (2)     Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction. (3)     [Repealed, 2005, c. 32, s. 17] R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17. COURT OF APPEAL FOR ONTARIO CITATION: R. v. N.S., 2021 ONCA 694 DATE: 20211012 DOCKET: M52570 (C69437) MacPherson, Roberts and Miller JJ.A. BETWEEN Her Majesty the Queen Applicant (Appellant) and N.S. Responding Party (Respondent) Deborah Krick, Michael Dunn and Jeremy Tatum, for the applicant Carlos Rippell and Marianne Salih, for the responding party Gerald Chan and Dragana Rakic, for the intervener, Criminal Lawyers’ Association (Ontario) Heard: October 1, 2021 by video conference REASONS FOR DECISION [1] Following the decision of the Supreme Court of Canada in Canada (Attorney General) v. Bedford , 2013 SCC 72, [2013] S.C.R. 1101 (“ Bedford SCC”), Parliament enacted new legislation to address the sale of sexual services in Canada. In this new legislation, Parliament criminalized certain aspects of commercial sex work. [2] The respondent N.S. was charged with several offences under the Criminal Code , R.S.C. 1985, c. C-46, including s. 286.2 (receiving material benefit from sexual services), s. 286.3(1) (procuring sexual services), and s. 286.4 (advertising sexual services). At trial, the respondent asserted that these provisions infringed ss. 2(b), 2(d), and 7 of the Canadian Charter of Rights and Freedoms and were not justifiable limits under s. 1 of the Charter . [3] The trial judge held that these provisions infringed s. 7 of the Charter , declared them of no force and effect, and declined to suspend the declaration of invalidity: R. v. N.S. , 2021 ONSC 1628; R. v. N.S. , 2021 ONSC 2920. [4] The applicant has appealed these decisions and seeks to stay them pending the appeal. [5] The test for granting a stay is the longstanding and well-known tripartite one set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] S.C.R. 311, at para. 48: First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. [6] The applicant easily meets the first part of the test. It is obvious that the respondent’s challenge to the validity of several provisions in s. 286 of the Criminal Code poses “a serious question to be tried”: see Bedford v. Canada Attorney General) , 2010 ONCA 814, 330 D.L.R. (4th) 162, at para. 10 (“ Bedford ONCA”). In recent months three other judges of the Superior Court have declined to follow the decision in N.S. : see R. v. MacDonald , 2021 ONSC 4423, 72 C.R. (7th) 413; R. v. Williams (24 June 2021), Brampton, 18-00000980 (Ont. S.C.); and R. v. Maldonado Vallejos , 2021 ONSC 5809. [7] On the second branch of the test – “irreparable harm” to the applicant – we begin with the analysis by Rosenberg J.A. in the stay application relating to the former Criminal Code prostitution provisions. In Bedford ONCA , Rosenberg J.A. analyzed the second branch of the RJR-MacDonald test at para. 15: There are obvious advantages to maintaining the status quo by staying the judgment. A stay will minimize public confusion about the state of the law in Ontario; for the time being the law in Ontario will be the same as in the rest of Canada. The police will be able to continue to use the tools associated with enforcement of the law that they say provides some safety to prostitutes, especially those working on the streets. The various levels of government will have the opportunity, should they choose to do so, to consider a legislative response to the judgment, which might be better informed following a full review by this court of the application judge’s decision. [8] In our view, the extensive evidentiary record put forward by the applicant on this motion strongly supports a similar analysis and conclusion. [9] The third branch of the RJR-MacDonald test – the “balance of convenience” branch – also favours the granting of a stay. Again, the analysis in the decision on the stay application in Bedford ONCA is instructive. In that case, Rosenberg J.A. said, at para. 24: In cases involving the constitutionality of legislation, irreparable harm and balance of convenience tend to blend together and they are often considered together.  … This blending of the two stages in cases involving the constitutionality of legislation is understandable because, where the government is the applicant, the public interest is engaged at both stages … As well, the irreparable harm is not easily quantified in a case such as this in which monetary issues are not engaged and any harm to one side or the other cannot be cured by an award of damages at the end of the litigation … In the result, the same considerations that concern a court at the irreparable harm stage resurface in the balance of convenience stage. [10] In Bedford ONCA , Rosenberg J.A. went on to conclude that the balance of convenience favoured the applicant. We would make a similar conclusion with respect to the new Criminal Code provisions relating to prostitution. Their content, and the ongoing investigative and enforcement steps taken by law enforcement personnel, support the granting of a stay. This is especially so given that, with the agreement of counsel, the stay will be a very brief one. [11] We grant the stay and maintain it in place until November 19, 2021, the date on which the appeal will be heard in this court. “J.C. MacPherson J.A.” “L.B. Roberts J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ossetchkine, 2021 ONCA 698 DATE: 20211012 DOCKET: C67718 Rouleau, Benotto and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Victor Ossetchkine Appellant Victor Ossetchkine, acting in person Jeffrey Wyngaarden, for the respondent Heard: October 4, 2021 by video conference On appeal from the conviction entered on September 13, 2019 and the sentence imposed on October 18, 2019 by Justice J. Speyer of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted by a jury of four counts of assault and two counts of assault with a weapon. The victims were his three children and his wife. He was sentenced to 12 months’ imprisonment less credit for pre-sentence custody, 3 years’ probation, a 10-year firearms prohibition, and a DNA order. [2] He appeals the conviction and sentence. [3] The Crown alleged that, over a period of several years, the appellant assaulted each of his children and his wife. He repeatedly assaulted his son and oldest daughter with a bamboo stick and a leather belt when he was training them for karate. He used these devices to “correct” them if they failed to meet his expectations. They were also made to lie down on their stomachs with their hands at their sides while he struck them on the buttocks, thighs, and lower back. He made them fight each other and the loser would get hit. If there was a tie, they both got hit. The beatings continued until the son was 17 years old and the daughter was in university. The youngest daughter was physically disciplined from the age of four for innocuous behaviour such as not finishing her soup. He would twist her ears until she cried and lifted her off the ground by her ears. He assaulted his wife by choking her with both hands and shaking her. [4] The appellant’s defence was that it did not happen. He testified at trial. [5] The appellant submits that the jury verdict is wrong and repeats much of the evidence he submitted at trial. We do not give effect to these submissions. [6] He also asserts ineffective assistance of trial counsel. Although the protocol was not followed and we have no evidence from trial counsel, we do not need to assess the performance aspect of this claim. The appellant has not met the threshold requirement of showing prejudice. That is because, even if his assertions are correct, the result of the trial would not change. There is no miscarriage of justice here. [7] By way of example, the appellant submits that his trial counsel did not tell the jury that his wife lied about when her affidavit for family law proceedings was prepared in relation to when it  was sworn or that it was prepared and sworn in secret; that he could not have exercised control over his wife because she was free to go to the grocery store two to three times a month; and that his wife lied about not having a cell phone. He also says that counsel agreed that the police witnesses would not be called, so the jury did not see the video statements showing the wife was not afraid as they were not produced. [8] These matters would not have affected the jury verdict. The issue at trial was credibility. The complainants were extensively cross-examined, and the appellant testified at trial. The issues raised by the appellant had, at best, marginal relevance.  In fact, most would not have assisted him, were irrelevant, or would have worked to his disadvantage. The jury was convinced beyond a reasonable doubt that the Crown had proven its case with respect to the convictions. In fact, the appellant was acquitted of some of the charges against him. [9] The sentencing reasons disclose no error in principle, and we do not interfere. [10] The conviction appeal is dismissed. Leave to appeal the sentence is allowed, but the sentence appeal is dismissed. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Xavier, 2021 ONCA 713 DATE: 20211012 DOCKET: C69531 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Tiago Gomes Xavier Appellant Nate Jackson, for the appellant Mark Luimes, for the respondent Heard: in writing On appeal from the sentence imposed by Justice Edward Prutschi of the Ontario Court of Justice on April 9, 2021. REASONS FOR DECISION [1] The appellant received a sentence of ten months imprisonment for one count of robbery. Counsel informed the sentencing judge that the appellant had served three days in presentence custody, meaning he should be credited 5 days in total. The sentencing judge agreed. [2] The sentencing judge also gave credit pursuant to R. v. Downes (2006), 79 O.R. (3d) 321 (“ Downes credit”) for what he thought was 15 months spent on restrictive bail terms. The Downes and presentence custody credit came to a combined total of 2 months. [3] On appeal, the parties agree that the sentencing judge was misinformed about the amount of time spent in presentence custody and on restrictive bail conditions. The appellant actually spent 30 days (not 3 days) in presentence custody, meaning that he only spent 14 months (not 15 months) on restrictive bail conditions. [4] The parties agree that that this sentencing error can be remedied by decreasing the Downes credit by 4 days and increasing the presentence custody by 41 days. This results in an additional 37 days of credit. [5] We are prepared to accede to this joint position. An additional 37 days credit is granted and should be reflected on the warrant of committal. The sentence remains the same in all other respects. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: RE/MAX Realtron Realty Inc. v. 2458313 Ontario Inc., 2021 ONCA 715 DATE: 20211012 DOCKET: C68157 Hourigan, Huscroft and Coroza JJ.A. BETWEEN RE/MAX Realtron Realty Inc. Plaintiff (Appellant) and 2458313 Ontario Inc., 2524991 Ontario Corporation, Qingxin Shao also known as Newry Shao and Zoubo Gu also known as Steven Gu Defendants (Respondents) Paul Starkman and Calvin Zhang, for the appellant Jordan Goldblatt and Victoria Wicks, for the respondents Heard: October 8, 2021 by video conference On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated January 29, 2020. REASONS FOR DECISION [1] The appellant’s claim for commission on the sale of a Toronto property was dismissed following a mini-trial, which was ordered in the context of the respondents’ motion for summary judgment. The trial judge determined that a numbered company, 2458313 Ontario Inc. (“245”), whose purchase of the property was terminated, and the numbered company that subsequently purchased the property, 2524991 Ontario Corporation (“252”), were separate corporate entities with overlapping but distinct interests and people. The trial judge found, further, that even if the corporate veil were pierced as the appellant requested, it would do no good because the people behind the two corporations were different. They were therefore not responsible for each other’s contractual obligations and the holdover clause in the purchase and sale agreement with 245 did not apply. [2] The appellant raises several issues on appeal that, taken as a whole, essentially invite this court to retry the case. That is not our role. [3] The appellant has not established that the trial judge made a palpable and overriding error that would justify this court’s intervention. The trial judge found that 245 did not include several people involved in 252. Those people contributed half of the funds for the acquisition of the property by 252, had a majority of the corporate officers, owned 50% of the shares, and negotiated the second agreement of purchase and sale on behalf of 252. These findings were open to the trial judge on the record that was before him. The trial judge went on to apply the test set out by this court in Yaiguaje v. Chevron Corp. , 2018 ONCA 472, leave to appeal refused, [2018] S.C.C.A. No. 255, and found that the criteria for piercing the corporate veil were not met. 252 was not a mere façade for 245, nor was either company nothing more than the authorized agent of its members. These findings reveal no error and are entitled to deference. [4] As to the causes of action pleaded by the appellant, the trial judge found that 245’s intention in terminating its agreement of purchase and sale was not to save commission. Instead, several individuals who were going to invest in the purchase were concerned by the state of the building and were simply not satisfied with the deal, so it did not proceed. The appellant clearly knew of this, as its agent had participated in group chats about their concerns. A different group made a different offer using its own real estate agent. In the absence of evidence of underlying wrongdoing or unlawful intent, the various causes of action advanced by the appellant necessarily failed. We see no error in the trial judge’s analysis. [5] The motion judge awarded the respondents $143,931.31 in costs. He took into account that the respondents had made two offers to settle and had been entirely successful. He found that the appellant’s case “completely missed the mark” and that both the trial and the summary judgment motion could have been avoided had the offers to settle been accepted. Thus, the motion judge awarded partial indemnity costs up to the date of the second offer and substantial indemnity costs thereafter. [6] The costs award is indeed large, but the appellant has not established that the motion judge made an error in principle or that the quantum of costs is unreasonable in the circumstances, which include the appellant’s rejection of two offers to settle. As the trial judge noted, given the appellant’s knowledge of what had occurred, it is not clear why it was necessary for this case to be tried. [7] Accordingly, the appeal is dismissed. Leave to appeal costs is denied. [8] The respondent is entitled to costs in the agreed amount of $20,000, all inclusive. “C.W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Bouchard v. Sgovio, 2021 ONCA 709 DATE: 20211013 DOCKET: C69080 Pardu, Paciocco and Nordheimer JJ.A. BETWEEN Leslie Bouchard Applicant (Appellant) and Angela Sgovio Respondent (Respondent) John P. Schuman and Katelyn Bell, counsel for the appellant Brian J.R. Hall, counsel for the respondent Heard: September 1, 2021 by videoconference On appeal from the order of Justice Jayne E. Hughes of the Superior Court of Justice, dated February 9, 2021 with reasons at 2021 ONSC 1055. Paciocco J.A.: OVERVIEW [1] The appellant father, Leslie Bouchard, appeals an enforcement order made by Hughes J. pursuant to the Family Law Rules , O. Reg. 114/99, r. 1(8), granting the respondent mother, Angela Sgovio, a temporary parenting order to facilitate the enrollment of their two children in Family Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships (“Family Bridges”). Family Bridges is an intensive therapeutic program for all family members, designed to heal fractured parent-child relationships resulting from parental alienation. [2] The father also appeals a restraining order the motion judge made against him pursuant to the Children’s Law Reform Act , R.S.O 1990, c. C.12, s. 35. [3] The parties have two children, T.B., a son, who was born in March 2006, and a daughter, S.B., who was born in September 2009. The enforcement and restraining orders are premised on the father’s alleged misconduct in alienating T.B. from his mother. There were no independent concerns expressed during the underlying litigation for the wellbeing of S.B., who maintains a positive relationship with both parents. [4] The father argues that the motion judge erred by: (1) imposing the enforcement order without jurisdiction, (2) making the enforcement order without fully considering the best interests of the children and without sufficient evidence; and (3) imposing a restraining order that was not requested by either party. [5] The father has presented fresh evidence in support of his appeal. The fresh evidence purports to show a change in circumstances. There is disagreement over the relevance and cogency of this evidence. However, it is not contested that the fresh evidence demonstrates that the terms of the restraining order interfere with the father’s livelihood. The mother consented to the variation of the restraining order to remedy this but argues that the fresh evidence is not otherwise admissible or useful. [6] I would grant leave to admit the fresh evidence, but I would dismiss the appeal relating to the enforcement order for the reasons that follow. Immediately after hearing this appeal, the panel granted the appeal relating to the restraining order and varied that order on consent. I would not otherwise interfere with the restraining order. THE MATERIAL FACTS [7] The parties separated on March 31, 2017. On June 26, 2019, they entered into a Parenting Agreement that provided for shared parenting of T.B. and S.B. That same day, the Parenting Agreement was made into a final order on consent (the “Leef Order”). [8] The Leef Order included a detailed regular schedule and an equally detailed holiday schedule. It also provided that the children, both T.B. and S.B., would receive weekly counselling with Ms. Stacey Rennehan, and it forbade the parties from involving the children in adult conversations about legal issues or legal disputes. [9] On August 18, 2018, the mother brought a notice of motion seeking relief arising from the father’s alleged noncompliance with the Leef Order, including the shared parenting regime. This motion was argued before Hughes J. on August 22, 2019. [10] On October 23, 2019, Hughes J. released her decision (the “Hughes Order”). She found that there was ample support in the father’s own evidence to find that he was breaching the Leef Order by withholding the child T.B. from his mother as a strategy for resolving outstanding property issues. This finding was based on his past-practice and the pattern and timing of the breaches of the Leef Order that she found to have occurred. [11] Specifically, the father confirmed in his affidavit evidence that prior to the Leef Order he had withheld T.B. from his mother to secure the shared parenting order. This fact was supported by text messages that had been filed in which he was using contact with T.B. as an ultimatum in exchange for a shared parenting settlement. [12] The motion judge found that, consistent with this past practice, the repeated breaches of the shared parenting schedule in the Leef Order began the day after an unsuccessful property settlement conference had been held. Moreover, she found that this same day, the father, in breach of the Leef Order, “manipulated” T.B. by communicating with T.B. about his extreme frustration with the mother arising from their legal dispute. She found that this conduct fueled T.B.’s animosity towards his mother. [13] The motion judge also found that the father had failed to take the children to counselling sessions with Ms. Rennehan as directed, and she rejected his explanation that he could not afford the costs of the counselling. [14] As the result of her findings, the motion judge ordered the father to pay a global fine of $18,000 to the mother, which she itemized between the several breaches of the Leef Order that she had identified. She also ordered that “[u]ntil the [father] brings himself into compliance with the Leef Order, he shall not be entitled to … (d) [b]ring any further motions without leave of this court”. The Hughes Order has not been appealed. [15] When she made the Hughes Order, the motion judge adjourned the matter to November 1, 2019 for a compliance hearing. That adjournment date was subsequently postponed to December 18, 2019. [16] Pending the December 18, 2019 adjournment date, the mother’s care of T.B. had not resumed, and on November 8, 2019 Ms. Rennehan withdrew from her counselling role. On December 4, 2019, the mother, who had already moved for additional fines for further alleged non-compliance, brought a Form 14 Amended Notice of Motion seeking, among other things, an order that “Mills Psychology shall conduct reintegration therapy” between the mother and T.B. The Notice of Motion did not identify the source of the court’s authority to make such order. [17] The parties settled the mother’s December 4, 2019 motion and on December 18, 2019, McGee J. made a temporary consent order directing that the mother’s care of T.B. was to resume, and that T.B. attend counselling with Mr. Jeff Packer and Ms. Nicole Bolotenko (the “McGee Order”). The motion was further adjourned to April 17, 2020 to permit T.B.’s progress in therapy to be monitored. [18] Unfortunately, the April 17, 2020 date was scuttled because of lockdowns during the COVID-19 pandemic. It was rescheduled to be heard on September 28, 2020. [19] On August 18, 2020, pending the September 28, 2020 hearing, the mother moved for still further relief in another Form 14 Notice of Motion. As in the case of the Notice of Motion she brought on December 4, 2019, she did not identify the legal authority under which the relief was sought. [20] In the affidavit in support of the Notice of Motion the mother claimed that despite the Leef Order, the Hughes Order, and the McGee Order, she had not managed to see her son outside of counselling since December 2019, and she alleged that the father had sabotaged every attempt at therapeutic intervention. Materially, she asked for an order that: (1) she have temporary “custody” [1] of the children; (2) that the children be enrolled in Family Bridges; (3) that “pending further Order of this Court, the children shall have no contact with the [father], his relatives, friends or associates, including his spouse, except as directed by Family Bridges, or the aftercare professional, or any other professional designated by the [mother] or the Court, and none of the abovementioned individuals shall contact the children”; and (4) that the father, who worked in an educational capacity with the Durham District School Board, “be placed at a school at least 20 kilometers away” from the schools the children would be attending. [21] On August 25, 2020, the father brought a cross-motion for: (1) an order pursuant to s. 30 of the Children’s Law Reform Act “appointing Marcie Goldhar to complete an expedited focused assessment to determine the reasons for the difficulties in the relationship” between T.B. and his mother; (2) an order that the parties exchange offers to settle temporary parenting issues; and (3) an order setting the school T.B. would be attending as well as setting out the details of any necessary transportation and online learning arrangements. As was the case with the mother’s requests for further relief, the father’s requests were made in a Form 14 Notice of Motion and did not identify the legal authority for the orders sought. [22] On September 28, 2020 Hughes J. conducted the hearing, which she described as “a proceeding to compel the [father] to comply with the Leef Order and orders made subsequent, and to monitor the [father’s] compliance”. The mother filed affidavit evidence in support of the findings and orders she requested, although she did not file a Form 35.1 sworn parenting affidavit, which is required in r. 15 motions when seeking to change parenting orders. In the supporting affidavit she did file, however, she included a detailed description of Family Bridges, and appended literature from the program as an exhibit. [23] Despite having brought his own motion for substantive relief at the hearing, the father objected to the motion judge’s jurisdiction to provide the relief that the mother was seeking, arguing that such relief, including a change of parenting time, cannot be provided as a remedy in a contempt proceeding, or an enforcement proceeding under r. 1 of the Family Law Rules , “if that’s what this is about”. He also argued that he had done everything he could to get T.B. to comply with the court orders, and he argued that the evidence did not support a finding that he has alienated T.B. from his mother. He argued that, in fact, T.B.’s estrangement from his mother is justified based on her conduct. He also argued that the s. 30 assessment he requested is required before the court has jurisdiction to grant relief based on parental alienation. Finally, he argued that the orders sought would not be in T.B.’s best interest. [24] With respect to the child S.B., the father argued that there was no suggestion that S.B. was alienated from her mother, inferring that even if such therapy is ordered relating to T.B., the order should not include S.B. [25] The father also made submissions about the unsuitability of the Family Bridges program. Specifically, he expressed concern that the parties cannot meet the enrolment criteria, given that enrolment depends on the child’s views about the alienated parent being “unrealistic”, when T.B.’s views about his mother are not unrealistic. He presented affidavit evidence from Durham District Children’s Aid Society case worker, Ms. Cathy Bugden, in which Ms. Bugden expressed concerns that “being sent to a treatment facility could have an extreme impact on [T.B.’s] well-being”. In that affidavit, Ms. Bugden, who conceded that she lacks expertise in the area of determining parental alienation, noted that “if the [professional] assessment supports this, then the professionals will have made the official recommendations based on their findings”. [26] Notably, the father suggested no alternative programs or therapies to the Family Bridges program, only the alternative strategy of a s. 30 Children’s Law Reform Act assessment. [27] Counsel for the Durham District School Board appeared to oppose the order the mother requested that would have imposed area limits on the father’s employment placement. Counsel for the Board noted that if the Board was forced to comply with such an order it would place the Board in conflict with the collective agreement and create significant staffing challenges during the COVID-19 pandemic. [28] The motion judge released her decision on February 9, 2021. In her endorsement, she rejected the father’s challenge to her jurisdiction to make the orders sought, noting that this was a compliance matter, not a contempt matter. She said that “[t]he Family Law Rules provide the court sufficient discretion to consider the relief claimed by both parties”. She held that “where a party to the proceeding has failed to obey an order, [s.] 1(8) of the Family Law Rules provides this court with a very broad discretion to make an order the court considers necessary to compel that party into compliance”. She ruled: I find that I do have jurisdiction to place [T.B.] on an extended visit with his mother on a temporary basis, and to authorize her to obtain the treatment for herself and the children necessary to reverse the harm that has been caused to [T.B.] as a result of his father’s refusal or inability to comply with the Leef Order. [29] With respect to the merits of the application, the motion judge found, based predominantly on evidence that the father had filed, that: [I]t is clearly in [T.B.’s] best interest to resume the loving, supportive and healthy relationship he had with his mother prior to his parents’ separation, and that his father be provided the therapeutic assistance he needs to be able to support [T.B.’s] relationship with his mother and recognize the importance of [T.B.’s] mother’s role in the child’s life in order that [T.B.] may enjoy fully the 50-50 shared parenting plan set out in the Leef Order, which both parents recognized as being in his best interest. [30] However, she found that: Despite ample time to correct his course, the [father’s] ongoing non-compliant conduct [with the Leef Order] has remained undeterred by both the Hughes Order and the McGee Order, and I find that it is not in [T.B.’s] long-term best interest that his current circumstances continue further. [31] The non-compliance the motion judge found consisted of the father’s continued failure to facilitate the resumption of T.B.’s parenting time with his mother, and efforts by him to “sabotage” or “actively undermine” the therapy that had been ordered to support T.B.’s reunification with his mother. [32] Specifically, she found that the father’s motion materials were “peppered with examples of [his] ongoing abusive conduct” in speaking to T.B. about legal issues, including telling T.B. that his feelings have no weight or importance and will not be considered. He also acknowledged telling T.B. that Hughes J. said that, “his mother is right and his feelings and memories of his experiences are wrong”. The motion judge found that the father was not only breaching the court order by making those statements to T.B., he also knew he was not truthful, tried to justify his noncompliance, and appeared to be “blind to the damage his non-compliant conduct has caused to [T.B.]”. [33] The motion judge also made findings that the father had actively obstructed the therapeutic efforts made by each of the counsellors who had been retained pursuant to the court orders – Ms. Rennehan, Mr. Packer and Ms. Bolotenko. She found that he also undermined the therapeutic efforts made by Mr. Gary Brooks, who had been retained by agreement on the recommendation of Durham Children’s Aid Society case worker, Ms. Bugden, after Mr. Packer and Ms. Bolotenko had resigned. [34] The motion judge’s finding that the father had undermined the therapeutic work of Ms. Rennehan was supported by correspondence between the father and Ms. Rennehan. The motion judge found that the father actively undermined Ms. Rennehan’s therapeutic efforts by insisting, despite her recommendation to the contrary, that the only way T.B. would proceed was if he and his new partner attended the sessions; by insisting that she meet with T.B. so that T.B. could explain what he wanted and needed out of the therapy; by suggesting to her that she was not mandated by the court order to set reunification as a goal of the therapy; by accusing Ms. Rennehan of having had private conversations with the mother; and by requesting that he be permitted to record their meeting. These events led Ms. Rennehan to conclude that trust had been broken and that “securing a new counsellor [for T.B.] is ideal”. [35] With respect to the team counselling led by Mr. Packer and Ms. Bolotenko that was ordered under the McGee Order, the motion judge accepted the contents of a report that was written to the Durham Children’s Aid Society by Ms. Bolotenko, but jointly signed by both counsellors, explaining why “ethical and safety reasons” required their resignation. That report included the following information: Before reunification counselling began, the parents agreed to attend two sessions with Jeff Packer in order to assess and determine parents’ readiness, level of commitment, and ability to engage in reunification counselling and cooperative parenting coaching. During these two sessions (January 17 and 31, 2020) and subsequent correspondence, this writer found that the [father] continued to engage in blame and put downs of his co-parent rather than agreeing and committing to treatment plans set out by the writer for the improvement of the [mother’s] relationship with their son. Facing these enduring high conflict patterns of behaviour, this writer offered alternatives such as individual sessions, parallel parenting or parent co-ordination approaches. The parties were also provided knowledge on how a lack of improvement of engagement in their sessions would undermine and effect [T.B.’s] motivation and faith in his own counselling within the same organization. The [father] put up further barriers to continued treatment with threatening and inappropriate behaviour towards both the [mother] and the writers. On February 8, 2020, the [father] and the [mother] were informed (via email) by the writers that they could not continue to provide service for ethical and safety reasons: It is our concern and impression, given the several hours of documentation read from court, email correspondence and sessions with the writers that [the father] continues to ignore court orders for shared custody and is unwilling and unmotivated to participate in T.B. having a comfortable, healthy and meaningful connection with his mother. The writers are concerned that [the father] is directly and indirectly contributing to T.B.’s sense of hostility, dislike and aggression towards his mother. It is our assessment at this time. [The father] struggles with his responsibility as a parent to encourage the development of a healthier relationship between T.B. and his mother. Finally, in keeping with a family systems approach, we are concerned with the health and wellness of both children should exposure to such high-level parental/caregiver contact continue. [36] The counselling that had been arranged with Mr. Brooks had initially been going well and producing positive results. It is not contested that it ended with a letter from Mr. Brooks to the father in which Mr. Brooks set out the conditions the father had agreed to, which included making sure T.B. attends therapy, not discussing adult or court related issues with T.B. for any reason, and not interrogating, asking questions, discussing, or inquiring how therapy went, even if T.B. initiated such conversation. The letter continued: Les your email clearly demonstrates that you did everything you agreed you would not do which effectively sabotaged the therapeutic process. Your actions further alienated T.B. from his mom. At this point, given your actions as witnessed by your detailed email, I do no[t] feel reconciliation therapy can be effective while T.B. remains in your care, under your direction and influence. Regretfully, T.B. and his mom will have to seek out the services of yet another therapist. [37] The father provided alternative explanations for the breakdown of each therapeutic relationship, but the motion judge rejected each of them. She commented that there is no reason why the four therapists would provide inaccurate information, and that given their professional duties, they probably accurately documented the events. [38] Of note, Durham Children’s Aid Society Case Worker, Ms. Bugden, provided affidavit evidence in support of the father’s conduct towards T.B. After reviewing Ms. Bugden’s affidavit and related documentary information, including Ms. Bugden’s own notes, the motion judge found that the father had manipulated Ms. Bugden, who was inexperienced with parental alienation and therefore unsuspecting of manipulative characteristics of parents with alienation tendencies. The motion judge found that the father had provided her with inaccurate and incomplete information, dominated their communications, and was given access to statements made by T.B. to Ms. Bugden that should have been kept private. When the father confronted Ms. Bugden by telling her that T.B. felt she was minimizing his feelings about the years of his mother talking negatively about his father and lying about issues, Ms. Bugden did not interrogate this claim but apologized to T.B. [39] Mr. Michael Blugerman, a registered social worker with expertise in child welfare, was retained by the father to assist him with the counselling process. He provided an affidavit that is supportive of the father and critical of the counselling Mr. Packer had provided. The motion judge rejected Mr. Blugerman’s views, noting that Mr. Blugerman did not have expertise in parental alienation or reunification, had not contacted Mr. Packer with questions relating to the reunification method being utilized, had displayed no concern for the fact that the father had shared with him a surreptitiously recorded conversation with Mr. Packer, and that Mr. Blugerman had received manipulative and incomplete information from the father relating to Mr. Packer’s decision to discontinue counselling T.B. [40] Based on this evidence, the motion judge found that “[t]ime has become of the essence” and given the father’s pattern of refusing to engage with professional therapists, it was not in in T.B.’s best interest to delay the enforcement of the Leef Order pending a further assessment to determine the cause of T.B.’s resistance. She said, “[i]t is not necessary to wait for a fourth counsellor to advise me that the [father] continues to actively alienate his son [T.B.] from the child’s mother”. [41] The motion judge concluded that it was necessary to order that the children be enrolled in the Family Bridges program, that a temporary parenting order relating to T.B. and S.B. be given to the mother for the period of time the children are enrolled in the Family Bridges program, and that steps be taken to “prevent the [father] from sabotaging the program” by controlling “his contact with the children until his involvement is required by the leaders of the [Family Bridges] program”. [42] In relevant part, the key provisions of the order under appeal provide: 2. The [mother] shall have temporary custody of the children, [T.B.] and [S.B.] … until further order of the court. 3. The [mother] shall enroll with the children in Family Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships (Family Bridges), to enable and assist the children in adjusting to living with the [mother], without the consent of the [father]. [43] In her endorsement, the motion judge also imposed the following restraining order against the father: Pursuant to s. 35 of the Children’s Law Reform Act , the [father] is restrained from directly or indirectly contacting or communicating with the children …, and from coming within 1000 meters of any location where they are likely to be, including, without limitation, the [mother’s] residence, their schools … the Durham Children’s Aid Society offices [2] , the offices out of which the Family Bridges Program operates, except as directed by the leaders of the Family Bridges Program or the aftercare professional, or any professional designated by the [mother] or the court. Indirect contact shall include from the [father’s] relatives, friends, associates, and includes his spouse. “Contact” includes all forms of communication, including, without limitation, by phone, text, written letters, email, social media, via computer, in person, or via any third parties. For clarity, this restraining order does not impact contact between counsel relating to the ongoing litigation. The restraining order against the [father] shall not be varied until a minimum of 90 days have passed from the commencement of therapy recommended by Family Bridges for the [father] unless the court orders otherwise. This 90-day period is a minimum only. The extension of which will be considered by the court based on the [father’s] progress made in any aftercare therapeutic program recommended by Family Bridges [44] Both the order and the endorsement went on to identify the factors that the court would consider in deciding whether to terminate or extend the restraining order. Those conditions effectively turn on the father’s compliance with the requirements of the Family Bridges program, and his behaviour relating to the promotion of a positive relationship between the children and their mother. [45] The motion judge denied the mother’s request to impose an area restriction on the father’s employment because the Durham District School Board had not been served and given a full opportunity to respond, and she lacked jurisdiction to interfere with the contractual terms of the collective agreement. However, the restraining order prevented the father from attending the children’s schools. ISSUES [46] The issues that were argued by the father both orally and in writing can be framed and addressed as follows: A. Did the motion judge commit jurisdictional error by making the orders that she did? B. Did the motion judge err by failing to consider fully the best interests of the children or by making the orders that she did with insufficient evidence? C. Did the motion judge err in making the restraining order? [47] Although the motion judge’s decision is not without its concerns, I would not allow the father’s appeal beyond affirming the variation to the restraining order that the panel ordered at the close of the hearing of this appeal. ANALYSIS A. Did the motion judge COmmit Jurisdictional Error by Making the Orders that She did? [48] I would not accept the father’s argument that the motion judge lacked jurisdiction in the proceedings to make a temporary parenting order in favour of the mother and to order the enrollment of the mother and children in the Building Bridges program. The motion judge properly made those orders pursuant to r. 1(8) of the Family Law Rules . Specifically, r. 1(8) provides: 1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order it considers necessary for a just determination of the matter, including: (a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order. [49] “As long as the judge is satisfied that there has been a failure to obey an order ‘in a case or a related case’ subrule 1(8) is triggered” and the relief provided for therein can be ordered: Hughes v. Hughes , (2007), 85 O.R. (3d) 505, at para. 17 (Ont. S.C.J.). Although r. 1(8) provides an itemized list of forms of relief that are available, that list is inclusive, not exclusive: Mullin v. Sherlock , 2018 ONCA 1063, at para. 46; Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H. , 2020 ONSC 2208, at para. 126. The reach of the remedial orders that can be made is governed not by the itemized list in that rule, but by the general and broad language of the chapeau that precedes it, which provides that “the court may deal with the failure by making any order that it considers necessary for a just determination of the matter”. [50] As a result, even though, with the notable exception of r. 1(8)(g), each of the itemized forms of relief in r. 1(8) can be described as purely procedural, r. 1(8) has not been interpreted as being confined to purely procedural remedies. In Freedman v. Freedman , 2020 ONSC 301, at para. 20, for example, the court relied on r. 1(8) to give the applicant access to account information as well as exclusive authority to deal with insurance polices and off-shore accounts in order to prevent the respondent from dissipating these assets in an attempt to avoid compliance with court orders to make payments and asset disclosure. In Shouldice v. Shouldice , 2016 ONSC 1481, at paras. 17-19, pursuant to r. 1(8) a receiver of property was appointed to manage rental property so that support obligations that were being evaded could be enforced. In Sadlier v. Carey , 2015 ONSC 3537, at paras. 64-67, an order was made pursuant to r. 1(8) requiring the respondent to surrender his passport to the court to prevent his flight from the jurisdiction, and he was ordered to post security after he had been evading support orders. [51] Such broad and purposeful applications of r. 1(8) are sensible. The relevant substantive right is created by the order that is being enforced, while r. 1(8) serves to provide the means of enforcement so that those substantive rights may be realized. The rule therefore provides broad discretion to courts to make orders it considers necessary to fully address a party’s failure to comply, a flexibility that is of particular importance when the orders address the well-being of children: Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H. , at para. 127. Stated simply, if the remedy ordered addresses or “[deals] with the failure” to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8). [52] I use the term prima facie authorized because I do not mean to suggest that there are no limits to the kinds of enforcement orders that can be made under r. 1(8). For example, it may well be that the remedies that are provided for in r. 31(5), which is reproduced below, cannot be imposed pursuant to r. 1(8), absent a successful contempt motion as contemplated by r. 1(8)(g): see Mantella v. Mantella , 2009 ONCA 194. This proposition seems sensible since contempt orders require proof beyond a reasonable doubt, and although they are remedial in purpose, they are punitive in nature, and are therefore to be used as a last resort: Hefkey v. Hefkey , 2013 ONCA 44, at para. 3; Prescott-Russell Services for Children and Adults v. G. (N.) , [2006] 82 O.R. (3d) 686 (Ont. C.A.), at para. 26. I need not resolve this specific question since the ground of appeal before us concerns only the temporary parenting order and the Building Bridges order, neither of which are remedies contemplated by r. 31(5); the father did not appeal the Hughes Order where the motion judge did impose punitive fines without making a finding of contempt against the father, nor did he raise any objections in this appeal to the motion judge’s order that those fines would “remain in full force and effect”. Nevertheless, this illustration demonstrates that there may be other legal limits on the kinds of orders that courts may impose under r. 1(8). [53] The father contends that however broad the remedial authority under r. 1(8) may otherwise be, there is another legal limit that applies and was breached. Specifically, he contends that r. 1(8) cannot be used to make parenting orders, and the motion judge erred by purporting to do so. He maintains that parenting orders may only be made or varied under the authority of ss. 16 and 17 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), or ss. 20-29 of the Children’s Law Reform Act . He maintains that since no such proceedings were underway there was “no active parenting case before the [c]ourt” to enable the motion judge to make the orders that she did. [54] In my view, the father mischaracterizes the motion judge’s order in making this argument. The motion judge did not purport to vary the parenting terms contained in the Leef Order. Instead, she imposed an order that temporarily reassigned parenting rights to facilitate a therapeutic process that was ordered to enable the enforcement of the parenting terms set out in the Leef Order. Put otherwise, the order made by the motion judge did not vary or replace the Leef Order. Contrarily, it was made to facilitate the Leef Order. I am satisfied that this order fell within the motion judge’s remedial authority under r. 1(8). [55] Moreover, the implications of the father’s position are untenable. If he is correct, the proper procedural mechanism for remedying parental alienation that is frustrating a final parenting order is for the injured party to apply to reopen and vary the very order they want to enforce. If that were so, a party could provoke a new hearing on the terms of a final order by simply breaching it. [56] Appropriately, where one parent wrongfully withholds a child from the other, in violation of a court order, r. 1(8) provides quick access to a remedy, including for example, make-up time with the child. The parent entitled to court ordered time with the child should not be compelled to bring a motion to change the existing order. The same holds true where parental alienation is frustrating a parenting order. When dealing with the best interests of a child, delay should be avoided as much as possible. Litigation about children is costly and procedural roadblocks should be avoided. [57] Nor do I accept the father’s submission that the relief that was ordered was not pled. In fact, it was specifically requested by the mother in her Form 14 Notice of Motion dated August 18, 2020. [58] I also reject both arguments the father makes in reliance on r. 31(5), namely, (1) that the motion judge erred in making a r. 1(8) order in a contempt hearing; and (2) that the motion judge erred, contrary to the decision in Chan v. Town , 2013 ONCA 478, by using a parenting order as a punishment for contempt. I will set out r. 31(5) before addressing these submissions. That rule provides: 31(5) If the court finds a person in contempt of the court, it may order that the person, (a) be imprisoned for any period and any conditions that are just; (b) pay a fine in any amount that is appropriate; (c) pay an amount to a party as a penalty; (d) do anything else that the court decides is appropriate; (e) not do what the court forbids; (f) pay costs in an amount decided by the court, and (g) obey any other court order. [59] I will make two responses to the father’s submission that the motion judge erred by making a r. 1(8) order in a contempt hearing. [60] First, there is no clean division between contempt hearings and enforcement hearings. As r. 1(8)(g) illustrates, a party seeking enforcement under r. 1(8) may, but need not, bring a contempt motion as an enforcement mechanism. More importantly, even where contempt is at issue in a hearing, a judge may make a r. 1(8) order. As I have already indicated, contempt remedies are to be used as a last resort: Hefkey , at para. 3. Indeed, as this Court explained in Hefkey , at para. 3, a contempt remedy should not be granted in family cases if other remedies would suffice. This includes enforcement orders. There is nothing to prevent a court from making an enforcement order in addition to, or in lieu of, a contempt order even if a contempt order is sought in the proceedings: see Murano v. Murano (2002), 219 D.L.R. (4th) 334 (Ont. C.A.). [61] Second, contempt was not even in issue at the hearing where the impugned order was made. The motion judge arranged the hearing for the express purpose of monitoring compliance, and none of the general Form 14 Notices of Motion that the parties filed for additional relief in advance of the hearing sought a finding of contempt. Not surprisingly, in her endorsement the motion judge described the hearing as “a proceeding to compel the [father] to comply with the Leef Order and orders made subsequent, and to monitor the [father’s] compliance”. Relief provided for in r. 1(8) was therefore available to the motion judge at the proceedings. [62] I also reject the father’s related submission that, contrary to the decision in Chan , the motion judge used a parenting order as punishment for contempt. The motion judge in Chan purported to assign “custody” to the father as punishment for a finding of contempt that was made on contested evidence that could not support a finding of contempt beyond a reasonable doubt. In contrast, the motion judge in this case made a temporary order that effectively suspended parenting rights conferred in the final order and she did so to facilitate therapy, not to punish the father. The motion judge’s order was based predominantly on the father’s own evidence and was made in order to fulfil the terms of the Leef Order. Moreover, as I explain below, the motion judge made this order because of her assessment of the best interests of the children. The cases are not comparable, and the principles articulated in Chan are not offended by the r. 1(8) order. [63] Accordingly, the motion judge had the jurisdiction to make the orders that she did. I would therefore reject this ground of appeal. B. Did the Motion Judge Err by Failing to Consider Fully the Best Interests of the Children, Or by making the orders that she did with insufficient evidence? [64] I do not accept the father’s submission that the motion judge erred by failing to fully consider the best interests of the children or that she acted on insufficient evidence in making the orders that she did. In explaining my conclusions, I will address several discrete objections that the father raised to the motion judge’s decision, including: (1) his contention that she should not have made a finding of alienation without expert evidence or the s. 30 Children’s Law Reform Act assessment that he had requested; (2) his submission that she should not have made the findings or imposed the orders that she did without a voice of the child report from T.B.; and (3) that she misapprehended or ignored the evidence that the father had relied upon. (1) T.B. Did the Motion Judge turn her mind to T.B.’s best interest? [65] It is patent that the motion judge fully considered whether the orders she was making were in T.B.’s best interest. She noted explicitly that although it was an enforcement order that she was considering, given the relief that was requested by the mother, the test remained “what disposition is in T.B.’s best interest”. She then listed the best interest factors enumerated in s. 24(2) of the Children’s Law Reform Act that a judge “shall” consider, and she ultimately concluded that the temporary order was required because time was of the essence, a consideration that was clearly focused on T.B.’s best interest. [66] It is true that the motion judge did not overtly address each of the factors enumerated in s. 24(2). However, the failure to mention listed factors is not an error per se ; it is an error only if there is an indication that the judge failed to consider them: Van de Perre v. Edwards , 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 14-16. In my view, there is no basis for concluding that the motion judge failed to consider the material factors in this case. The best interests issue relating to T.B. was decidedly narrow. The parties agreed before the motion judge that it was in T.B.’s best interest to have a healthy relationship with his mother, a concession the motion judge readily and reasonably accepted. There was therefore no need for her to canvass all of the s. 24(2) factors seriatum . [67] The remaining piece is whether the motion judge considered T.B.’s best interests in attending the Building Bridges program. Once again, her reasons make it clear that she did. She concluded that given the father’s ongoing alienating behaviour, this more invasive approach was necessary to restore T.B.’s relationship with his mother, an outcome that was in his best interest. Did the Motion Judge have sufficient evidence? [68] I do not accept the father’s contention that the motion judge lacked the evidence required to decide that the orders she made were in T.B.’s best interest. [69] Unless an error of law has occurred, or a decision is plainly wrong, appellate courts must defer to a motion judge’s appreciation of the facts, even if the appellate judge may have come to a different decision, particularly where the orders at issue affect the welfare of children: A.M. v C.H. , 2019 ONCA 764, at para. 4; Slaughter v. Slaughter , 2013 ONCA 432, at para. 6; A.P. v. L.K. , 2021 ONSC 150, at para. 66; Van de Perre , at para. 13. Accordingly, the motion judge’s decision that it was in T.B.’s best interest to make the orders that she did is entitled to deference. [70] There was evidence before the motion judge supporting each of her findings about the failure of the father to comply with the Leef Order. When she made the Hughes Order, the motion judge had a foundation from the father’s own documentation that he had communicated with T.B. about legal issues he was having with T.B.’s mother and that the father did so destructively, damaging T.B.’s relationship with his mother. The evidence suggested that these conversations were the onset of T.B.’s estrangement from his mother and that they occurred after a failed settlement conference. The motion judge was entitled to draw the inference that the father promoted the breach in T.B.’s relationship with his mother for the purpose of pressuring the mother to settle their legal claim to his satisfaction. Of note, that finding was never appealed. [71] The additional findings the motion judge made about the father’s misconduct after the September 28, 2020 hearing were also grounded in the evidence, with most of it again from the father’s own materials. Most importantly, she had an ample evidentiary basis for finding that he was actively and systematically sabotaging the therapeutic programs that had been ordered and that he lacked insight into how damaging his behaviour was to T.B. [72] This evidence, coupled with the simultaneous change in T.B.’s behaviour towards his mother, adequately supports the motion judge’s conclusion that the father was alienating T.B. from his mother, even without evidence from an expert in parental alienation. As this court made clear in A.M. v. C.H. , at para. 31, alienation is not a psychiatric diagnosis that invariably requires expert evidence, but a factual finding about what happened in the family. In this case, the factual evidence of alienation was adequate without expert evidence. [73] Nor do I see any error in the motion judge’s decision to deny the father’s request for an assessment by an expert in parental alienation under s. 30 of the Children’s Law Reform Act . As I have explained, expert evidence was not required to make this determination. More importantly, based on the motion judge’s findings, the father had systematically scuttled every previous effort that had been made to provide the required therapeutic intervention. To be sure, it was in his interest to do so, since during the delay that ensued, T.B. was exclusively with him and not with his mother. The motion judge also found that the father had manipulated other professionals, including the Durham Children’s Aid Society worker, Ms. Bugden. In light of the father’s past behaviour, she could have no confidence that if she ordered an assessment it would be productive, and the point had been reached where delay was not an option. [74] Simply put, I see no error in her decision to proceed without expert evidence or a s. 30 assessment. The absence of expert evidence did not undermine her finding that the father was alienating T.B. from his mother. [75] A factual finding that alienation is occurring, such as the reasonable finding of alienation made by the motion judge in this case, can have implications for the need for a voice of the child report, even for older children such as T.B., who was 14 years of age at the time of the hearing. As this court recognised in A.M. v. C.H. , at para. 27, where a child has been poisoned against a parent and their wishes are not independent because they have been manipulated, a judge is entitled to give a child’s views no weight. It is evident that, in the motion judge’s assessment, T.B.’s views would not be independent and could carry little if any weight. [76] Moreover, T.B.’s views were well known at the time of the hearing. It was patent on the evidence, including the email exchanges between T.B. and his mother that had been filed, that T.B. resisted spending time with his mother, did not believe he was being alienated from her, and believed that she bore responsibility for the rift between them. It was not an error in principle in these circumstances for the motion judge to proceed without a voice of the child report, particularly given that the father brought no motion to secure one. Nor did the absence of such a report create a gap in the evidence that undermines the best interest findings that the motion judge made. [77] There is no basis for concluding that the motion judge misapprehended the evidence or failed to consider the evidence the father was relying upon to dispute the alienation claim. The motion judge gave cogent explanations for why she did not credit that evidence. [78] Finally, although the father did not raise this objection or make it a ground of appeal, for the sake of completeness I will address the fact that the motion judge made the order that she did even though mother did not file a Form 35.1 sworn parenting affidavit. Form 35.1 sworn parenting affidavits are required where parenting rights are sought in r. 8 applications, as the result of r. 11 amendments to applications, or in r. 15 motions-to-change. Form 35.1 affidavits include designated information that is valuable for judges when considering parenting orders, including a parenting plan, and the disclosure of any criminal charges or convictions of the party seeking the parenting order. I need not decide whether a Form 35.1 sworn parenting affidavit was technically required to secure an enforcement order that touches on parenting rights, but the mother would have been well advised to include such an affidavit given the nature of the relief she was requesting. Nevertheless, the motion judge had a clear indication of the parenting plan during the period covered by the order, and as I have indicated, the inquiry into the best interests of the children in this case was narrow. In the absence of any objection, it was not unreasonable for the motion judge to proceed in the absence of a Form 35.1 sworn parenting affidavit. [79] I would therefore defer to the motion judge’s clearly grounded decision that it was in T.B.’s best interest to take immediate steps to address the parental alienation that she found to be occurring. The father’s conduct was profoundly contrary to T.B.’s best interests. [80] The remaining issue is whether there was a proper evidentiary basis for the motion judge’s decision that it was in T.B.’s best interest to attend the Building Bridges program, and be removed from his father for a temporary period of time as required by the program, so that this therapeutic intervention could be undertaken. Although a better evidentiary foundation can easily be imagined, I do not agree that the motion judge lacked sufficient evidence about the program to conclude that it was in T.B.’s best interest to attend the Building Bridges program and to be separated from his father, as required by the program. [81] As indicated, less invasive forms of therapeutic intervention had failed, suggesting that more invasive steps were needed. The Building Bridges program was described in some detail in the mother’s affidavit, to which material from their website had been appended. Other courts had ordered treatment at the Building Bridges program and similar therapeutic programs in other cases, for example in X. v. Y. , 2016 ONSC 4333; J.C.W. v. J.K.R.W. , 2014 BCSC 488, [2014] B.C.J. No. 503; E.T. v. L.D. , 2018 ONSC 5132; and M.L.S. v. N.E.D. , 2017 SKQB 183. Further, the father presented no evidence about alternative programs, or about any problems with the Building Bridges program itself. The motion judge acted on the evidence before her, and in my view, although the evidence was not ideal, it was sufficient. I would defer to her factual findings and her determination of the appropriate remedy for T.B. (2) S.B. [82] I am of the same views with respect to S.B., although I agree that the motion judge should have been much more explicit than she was in addressing S.B.’s best interests when including her in the impugned orders. It is important to remember, however, that this litigation was focused on T.B. The father affirmed in his submission that it was not about S.B. It is not entirely surprising, therefore, that the motion judge did not focus her attention on S.B. when explaining her decision. [83] Moreover, it is clear from her comments relating to T.B. that the motion judge had a full understanding of the best interest principle. It is also evident that it was not in S.B.’s best interest to be excluded from the orders. In these circumstances, it is not appropriate to infer that the motion judge failed to consider S.B.’s best interest. [84] Specifically, the motion judge arrived at the reasonable findings that the father had used the mother’s relationship with T.B. as a strategy for achieving his goals, had manipulated T.B. to achieve this, and lacked awareness of the damage that this had done to T.B. Although there was no evidence of similar behaviour relating to S.B., it was obviously in S.B.’s best interest for the court to attempt to ameliorate this kind of behaviour by the father to reduce the risk that she could be similarly manipulated going forward. [85] In addition, there was evidence before the motion judge that S.B. had a loving and secure relationship with both parents. There is therefore merit in the father’s objection that it was not in S.B.’s interest to interrupt the positive relationship with him, even for the temporary period provided for by the motion judge’s order. At the same time, however, the motion judge was persuaded that it was in T.B.’s best interest to place him and his mother in the Building Bridges program and to segregate them from his father. If S.B. was not included in the program, she would therefore be separated from her mother and her brother, which was not in her best interest. Moreover, the loving and secure relationship that S.B. has with her father gives comfort that their relationship would not suffer long-term damage by the temporary order the motion judge was making. [86] Finally, there was also evidence before the motion judge that the Building Bridges program is designed for all family members and required S.B.’s participation. The mother expressed her understanding with the motion judge that S.B. would need to participate in the program and would be attending the sessions, an understanding that finds support in case law: see X v. Y. , at para. 22. S.B.’s participation was therefore important to T.B.’s best interest, as determined by the motion judge. In making this observation, I am not supplanting S.B.’s best interest with what is best for T.B. To a significant degree, what is best for T.B. is best for S.B. They are siblings, and members of the same family. It is not in S.B.’s best interest if her brother T.B.’s relationship with their mother is broken and hostile. [87] Although it would have been much preferred had the motion judge addressed these considerations overtly in her reasons, I am not prepared to find that she failed to consider them or that there was inadequate evidence of S.B.’s best interest to warrant her inclusion in the orders made. Nor am I prepared to undermine a last resort and long-delayed order that the motion judge made in T.B.’s best interest, because the motion judge did not articulate adequately why she came to the only decision she could have relating to S.B.’s inclusion in the impugned orders. [88] I would therefore reject the father’s claim that the motion judge erred by failing to fully consider the best interests of the children or acted without sufficient evidence. I have reviewed the fresh evidence filed by the father and see nothing in it to alter any of the above conclusions. C. Did the Motion Judge err in making the REstraining order? [89] The appellant argues that the motion judge erred in making a restraining order that neither party asked for in their pleadings. He also objects that the restraining order that the motion judge imposed included a prohibition on contact with his daughter S.B., non-attendance at his place of employment that would result in the termination of his employment, and at the Durham Children’s Aid Society, “without rationale at all”. [90] Based on the fresh evidence we admitted and on the mother’s consent, we ordered that the order “restraining the father from attending at the children’s school or within 1000 meters of specific locations is varied to provide that the appellant may attend at the school that is his workplace and may communicate there with a child of the marriage who attends that school”. Based on evidence that the boundary order relating to the Durham Children’s Aid Society Offices frustrates the father’s travel to work, we further varied the order “to provide that he may pass within 1000 meters of the Durham Children’s Aid Society offices when travelling from one location to another”. [91] Beyond the variations we have already ordered, I would not otherwise interfere with the restraining order. I do not accept the father’s contention that the mother had not sought a restraining order in her pleadings. Although the mother did not use the language of s. 35 of the Children’s Law Reform Act , she asked for a temporary order that the father have no direct or indirect contact, including by communication, with the mother and children. She also asked for an order relating to his employment that would place him at least 20 kilometres away from the high school the children were expected to attend. In my view, the restraining order that the motion judge made pursuant to s. 35 of the Children’s Law Reform Act was contemplated by the pleadings. [92] For the reasons I have already provided, I do not accept the father’s submission that the restraining order related to S.B. was imposed without reason. The motion judge was attempting to segregate T.B. from all communication with his father, direct or indirect. There is a heavy risk of indirect communication with T.B. if the father is free to contact or communicate with S.B. when she is in T.B.’s company. I would not interfere with the motion judge’s order. CONCLUSION [93] I would therefore dismiss the appeal. I would order the costs in this appeal to be payable to the mother in the agreed upon amount of $10,000, inclusive of disbursements and applicable taxes. “David M. Paciocco J.A.” “I agree. G. Pardu J.A.” Nordheimer J.A. (dissenting): [94] I have read the reasons of my colleague. He has set out, with his usual clarity, the questions raised in this case. He has also provided a sound analysis and rationale for the ultimate order made – one that was not provided by the motion judge. Nevertheless, while I understand my colleague’s justification for the order that was made, I am unable to agree that it was properly granted. In my view, there were fundamental procedural errors that occurred in reaching the conclusion in this case. Consequently, the order cannot stand and must be set aside. [95] In my view, the motion judge lacked the jurisdiction to make the “enforcement order” that she did through the process that was before her. What the motion judge did, in essence, was to vary a final order without requiring the respondent mother to follow the detailed procedures for seeking such a variation, thus denying the appellant father, and the children, the procedural safeguards to which they were entitled before such a serious variation was made. [96] Even without this fundamental problem, I would find that the motion judge erred in including certain terms in her order. [97] My colleague has set out the background facts succinctly. It is unnecessary for me to repeat them. A. JURISDICTION [98] The fundamental error committed by the motion judge is that she failed to consider and address her jurisdiction to make the ultimate order that she did. The motion judge relied on r. 1(8) of the Family Law Rules , O. Reg. 114/99, to make the order. While I appreciate the analysis that my colleague has undertaken, which ultimately finds that r. 1(8) can be relied upon in this case, I do not agree that r. 1(8) authorized the order that was made. In that respect, I agree with, and reinforce, my colleague’s point that r. 1(8) is not a provision by which any form of relief, necessary to enforce an order, can be granted. [99] I concede the general and broad nature of the introductory language in r. 1(8), which grants the court authority to make “any order that it considers necessary for a just determination of the matter” in the face of non-compliance with a previous court order. However, in my view, that broad language does not provide the court with a carte blanche to make any order that it wishes. Rather, the itemized list of suggested orders in r. 1(8), while non-exhaustive, does indicate the kind of orders that are appropriately made, the vast majority of which are procedural in nature. Of more immediate relevance for this case is that those suggested orders do not include varying a final order. [100] Instead, it is r. 15 that is dedicated to changing a final order or agreement. Importantly, where the claim relates to parenting orders, r. 15(5.1) requires the parties to file up-to-date Form 35.1 affidavits. These affidavits include information relevant to the safety of the subject children, such as whether either parent has been charged with or found guilty of a criminal offence, as well as the parents’ plan for the care of the children and any support network available to them. In this case, the court did not have the benefit of this potentially relevant information before it proceeded to alter the parenting order by relying on r. 1(8). [101] I accept my colleague’s distinction between taking steps to enforce orders short of a contempt finding and enforcement that involves the contempt power. I accept that distinction because this court has already said that “the civil contempt remedy is one of last resort”: Hefkey v. Hefkey , 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3. However, as I have already said, and as my colleague points out, the broad language of the introductory portion of r. 1(8) cannot provide jurisdiction to make whatever order the court wishes. It does not bestow unlimited authority on a judge to do whatever they choose. My colleague implicitly acknowledges that there are constraints on the authority granted by r. 1(8), when he says, at para. 52, “there may be other legal limits on the kinds of orders that courts may impose under r.  1(8)”. [102] I would go farther and make it clear that there are such limits. They are necessary because, before certain types of orders are made against a party, it is necessary to follow certain procedures, including applying the proper burden of proof. These procedures must be followed because they provide necessary procedural safeguards to the person who is to be subjected to any such order. For example, in cases where penal sanctions are sought, those safeguards are provided by r. 31 of the Family Law Rules . Procedural safeguards are not to be avoided simply because it is more convenient or more expedient to do so. [103] The problem with distinguishing between those orders for which jurisdiction can be found in r. 1(8), and those orders for which jurisdiction can only be found in other rules, such as r. 31, is made more difficult in this case for two reasons. One is the language used by the motion judge in her reasons and the other is because of an order that she made in this case in October 2019. [3] The language to which I refer is the motion judge’s use of the word “penalties” in her reasons (see paras. 92, 101). Penalties are generally only available after a finding of contempt has been made. This is clear from the provisions of r. 31, namely r. 31(5)(c), and from the existing authorities: see, e.g., Belcourt v. Charlebois , 2020 ONSC 4124 at paras. 28-32. [104] Furthermore, as this court held in Chan v. Town , 2013 ONCA 478, 34 R.F.L. (7th) 11, at para. 6, parenting orders should never be used as punishment: Custodial arrangements of children cannot be used as a punishment for contempt. That is not to say that there may not be a circumstance where a change in custodial arrangements would be in the best interest interests of the child, but this is not that case. There was no motion to vary the final order for custody based on a material change in circumstances . The motion judge’s rationale was that he hoped that this would bring peace to warring parents, although he said he recognized that it could make matters worse. [Emphasis added.] [105] In fairness, the motion judge did begin her analysis by reciting the factors relevant to the child(ren)’s best interests. She specified that any order she might make under r. 1(8) “must be determined to be in [the child’s] best interests”: at para. 86. However, at para. 90, she concluded that “[t]ime has become of the essence”. She also found that the evidence before the court was sufficient to conclude that the father was unwilling or unable to comply with the shared parenting time arrangement under the Leef Order. Two problems arise from the motion judge’s analysis, though. [106] First, it is difficult to discern the factual foundation for the motion judge’s conclusion that time was of the essence. The issues that were before the motion judge dated back at least two years. Indeed, as earlier noted, the same motion judge made an order in October 2019 addressing some of the same concerns with which she was faced in making the order that is now under appeal. It is hard to see, therefore, how this matter had suddenly become so urgent that proper processes could not be followed or that proper evidence could not be required. [107] Second, when the motion judge made the order that she did, there was no evidence before the court that the proposed intensive intervention through the Family Bridges program, including zero contact between the father and the children for a minimum of 90 days, was suitable for these particular children at this particular time. Indeed, there was very little evidence before the court generally regarding the Family Bridges program. [108] In my view, before a judge decides to order the type of serious intervention that was made in this case, and that is inherent in imposing attendance at a program such as Family Bridges, there must be comprehensive and cogent evidence regarding the program placed before the court. This evidence should include specific and detailed information regarding the program itself and, more importantly, specific and detailed information regarding the success rate of the program generally, and the likelihood of success in the individual case that is before the court, including with relation to the ages of the children involved, and the other specific circumstances. The required evidence should be of a nature similar to what a court would expect to receive from an expert, who is recommending a certain course of remedial action or treatment. No such evidence was before the court in this case. It follows that, among other concerns, there was no opportunity for the appellant to challenge any such evidence. In my view, the motion judge erred in making such an intrusive order in the absence of a proper evidentiary foundation. [109] I would add one further observation regarding these rules. It seems curious that r. 1(8) would become the principal rule dealing with the enforcement of orders when, in addition to the contempt route provided for in r. 31, the Family Law Rules also include r. 26 that expressly addresses the subject of the enforcement of orders. The result is that there are at least two different rules (or three, if my colleague is correct to include r. 1(8)) that purport to deal with the topic of enforcing orders. It is perhaps time for the Family Rules Committee to look at this issue and rationalize these various provisions. [110] In any event, my colleague’s efforts to surmount the jurisdiction concerns raised by the order made, and the motion judge’s reliance on r. 1(8), does not fully answer the jurisdiction question. In that regard, it is important to remember the effect of the motion judge’s order. It changed the shared parenting regime that had been provided for by agreement of the parties and formalized in the Leef Order. It also imposed a drastic therapeutic order on these teenaged children, as well as removing them from all contact with the father for a considerable period of time. [111] Perhaps in anticipation of this jurisdiction issue, my colleague appears to draw a distinction, for jurisdiction purposes, between a temporary order (which he finds this order to be) and a final order. In drawing this distinction, he appears to accept that reliance on r. 1(8) to justify interference with a final order would be problematic. However, he does not accept that the same concern arises if the motion judge’s order is temporary. [112] In my view, whether the motion judge’s order changes the parenting regime permanently or temporarily, matters not. And, of course, we do not know at this stage whether the change that the motion judge made will be permanent or temporary. [4] In any event, the therapeutic intervention that has been ordered will significantly affect the children and is, in my view, final in its effect on them. [113] I appreciate that some might say that dwelling on such procedural issues interferes with the need to address matters arising out of a party’s non-compliance with a court order quickly. However, there are reasons why we require certain steps to be taken before relief, of this nature, is obtained. Principal among those reasons is to ensure that there are safeguards in place such that an order that may have profound effects on the parties or their children, or indeed third parties, is not made hastily, or without a sufficient evidentiary foundation. With respect, these are not “procedural roadblocks” as my colleague characterizes them. It is simply a question of requiring a party to comply with the Rules in order to obtain the relief that they seek. [114] I would add, on this point, that it is not solely a question of picking between r. 15 and r. 1(8). There are statutory provisions that address changes to parenting orders. For example, the Children's Law Reform Act , R.S.O. 1990, c. C.12, provides in s. 29(1): A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order. [115] Similarly, the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.), provides in s. 17(5): Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9). [116] Neither of these provisions is referred to by the motion judge nor, for that matter, is there any reference to r. 15 in her reasons. Once again, the relief granted is justified by reliance on r. 1(8). Regardless of the debate over the extent to which enforcement relief can be granted under r. 1(8), there is no suggestion that the enforcement powers provided by this rule can also be relied upon to vary final orders. I note, on that point, that the respondent has not provided this court with any case in which a final order was varied through reliance on r. 1(8). [117] There are established procedures that are required to be followed to obtain specific relief, such as the variation of a final order. Taking shortcuts to those procedures simply to benefit the alleged aggrieved party, by attempting to expedite some form of relief, must not be permitted. As I have already said, procedural safeguards are important. They are not to be avoided simply based on expediency or on a manufactured sense of urgency. If a party seeks a variation, or a motion judge wishes to grant a variation, then the proper procedure must be followed. It was not in this case. B.      TERMS OF THE ORDER [118] Even if one could overcome the jurisdiction issues that impact on the order as a whole, there are problems with some of the individual terms of the order that was made. First, in para. 14 of her order, the motion judge ordered that “the Durham Regional Police Service, the Ontario Provincial Police, the RCMP, or any other Canadian police service, are directed to enter into any dwelling at any time to locate, apprehend, and return” the children. In making that order, the motion judge relies on s. 36(2) of the Children's Law Reform Act , although she does not refer to its terms. Section 36(2) reads: Where a court is satisfied upon application that there are reasonable and probable grounds for believing, (a) that any person is unlawfully withholding a child from a person entitled to decision-making responsibility, parenting time or contact with respect to the child; (b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or (c) that a person who is entitled to parenting time or contact with respect to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return, the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order. [119] I first note that this type of order ought to be granted rarely and only in extraordinary circumstances. It should only be granted in very serious cases where there is solid evidence that such interference by the police is necessary. I note on that point the requirement in the section that there be “reasonable and probable grounds”. The evidence in this case does not rise to that level nor was there any evidence to satisfy any of the other statutory requirements. Indeed, the motion judge does not point to any such evidence. This term of the order ought not to have been included. The fact that it was included tends to show the overreach of the order that was made. [120] Second, this overreach is also demonstrated by para. 1 of the motion judge’s order that purports to both continue the “penalties” that were imposed in her earlier order, including fines in the amount of $3,000 for each and every instance of non-compliance, while also raising the possibility that the penalties might be “extinguished”. It is unclear to me what penalties were to be extinguished under the order, or how. While there was no appeal of the earlier order, I am satisfied, for the reasons that I have set out above, that there was no jurisdiction to impose penalties on the appellant, absent a motion for contempt being brought. An order made without jurisdiction is a nullity. It cannot gain jurisdiction simply because it was not appealed. [121] Third is the restraining order that is set out in para. 101 of the motion judge’s reasons, at item 9. [5] No one asked the motion judge to make a restraining order. I do not agree with my colleague that the relief language used in the respondent’s motion can be equated to a request for a restraining order. Certainly, it does not appear that the motion judge treated it as such when she recited the relief being sought by the respondent in her reasons. [122] Further, the fact that both parties had to consent to variations to the restraining order to, in essence, eliminate a significant aspect of it would suggest that they had neither sought nor contemplated the specific relief that the motion judge granted. [123] However, the fact that the motion judge did grant that relief, with its resulting potential impact on the appellant’s employment, amply demonstrates the problem in dealing with these difficult issues in a summary and procedurally deficient manner. It also serves to reinforce my concerns about the breadth of the order, or its overreach as I referred to it above. [124] Consequently, even if the jurisdictional issues that apply to the order, as a whole, could be overcome, paras. 1 (purporting to both continue and potentially extinguish “penalties” imposed in the previous order) and 14 of the order (directing the police to “enter into any dwelling at any time to locate, apprehend and return” the children to the respondent’s care) cannot stand and must be set aside. I would be inclined to do the same with the restraining order, but since the parties have consented to significant changes to that term of the motion judge’s order, the issues, as they relate to that single term by itself, are now largely moot. C       CONCLUSION [125] I would allow the appeal, set aside the order of the motion judge, and dismiss the respondent’s motion, without prejudice to the respondent bringing a motion to vary the Leef Order on proper material and in conformance with r. 15 of the Family Law Rules , if she is so advised. I would make no order as to costs. Released: October 13, 2021 “G.P.” “I.V.B. Nordheimer J.A.” [1] The term “custody” is no longer used. Instead, the orders that confer the parenting rights once described as “custody” are more properly referred to as “decision-making orders” and “parenting time”: Divorce Act , R.S.C., 1985. c. 3 (2nd Supp), s. 35.4; Children’s Law Reform Act , R.S.O. 1990, c. C-12, s. 76(2)-(3). [2] The Durham Children’s Aid Society was included in the restraining order because it was the designated location for the transfer of TB to the Family Bridges program [3] Bouchard v. Sgovio , 2019 ONSC 6158, 34 R.F.L. (8th) 483. [4] I would note that the formal order refers to it being both temporary and final. [5] I note that, for reasons that are unexplained, this term does not appear in the formal order.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gracie, 2021 ONCA 707 DATE: 20211013 DOCKET: C68834 Rouleau, Benotto and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Kellie-Lynne Gracie Appellant Kellie-Lynne Gracie, acting in person Fredrick R. Schumann, appearing as duty counsel Nicole Rivers, for the respondent Heard: October 5, 2021, by video conference On appeal from the conviction entered by Justice John N. Olver of the Ontario Court of Justice on March 9, 2020. REASONS FOR DECISION [1] The appellant and her co-accused, Dalton MacLeod, were charged with one count of robbery. [1] [2] The complainant testified that on October 26, 2018, the appellant, with whom he had a mixed business/personal relationship, asked him to come into her apartment to fix what she said was a leaky faucet. The complainant initially resisted, but eventually agreed at the appellant’s insistence. When they entered, the appellant walked straight through the apartment and was not seen again by the complainant. He did see an acquaintance of the appellant, Melissa. In short order, the complainant was struck from behind and knocked down by a bandana-wearing male armed with a knife and a hammer, and then pepper sprayed by Melissa. The male demanded that the complainant empty his pockets. The complainant was able to recover a knife from his pocket and stab the male assailant, ending the attack. [3] There was no dispute at trial that the male who was stabbed was MacLeod. MacLeod testified at trial and denied the complainant’s version of events. The appellant did not testify. [4] The trial judge, after instructing himself on the principles in R. v. W.(D.) , [1991] 1 S.C.R. 742, rejected MacLeod’s evidence and found it did not leave him with a reasonable doubt. He accepted the complainant’s evidence which left him “with no doubt as to what transpired in [the appellant’s] apartment on the morning of October 26 th , 2018.” He found that it was proven beyond a reasonable doubt that MacLeod did commit the offence alleged. [5] The trial judge then considered the position of the appellant. He noted that she had not testified and instructed himself that he was not to draw any inference from that. He then stated that the Crown had established a “ prima facie case” against the appellant that “she had failed to meet”, noting: (i) that the events happened at her apartment; (ii) she had a prior relationship with the complainant, insisted that he come into the apartment to fix a leaky faucet notwithstanding his protestations that he did not have time to do so, then immediately disappeared after entering the apartment with him; (iii) she was captured on video leaving the apartment with Melissa, one of the perpetrators of the attack on the complainant, from an alternate exit; and (iv) she showed no concern for the complainant after the attack and attempted robbery. He referred to the argument of the appellant’s trial counsel that the evidence was insufficient to show that the appellant did anything more than passively acquiesce in the situation as it unfolded, and rejected it, stating: However, in concluding that MacLeod did, in fact, commit the offence on [the complainant] as alleged, absent any explanation for [the appellant’s] conduct, I do not see how she could be viewed as simply a present and passive spectator without knowledge of the plan for MacLeod and Melissa to rob him. There is no other reasonable inference to be drawn on this evidentiary record. [6] The trial judge convicted the appellant, finding that she “lured [the complainant] under false pretence to attend inside her apartment knowing of the plan for MacLeod and Melissa to rob him, thus making her a party to the robbery/attempt robbery.” [7] On behalf of the appellant, duty counsel makes two interrelated arguments. First, he argues that the trial judge reversed the onus of proof, treating what he called a “ prima facie ” case as sufficient in the absence of an explanation from the appellant. Put differently, he submits that the trial judge in effect used the failure of the appellant to testify and offer an explanation as a make-weight to pull the Crown’s case from one that was only prima facie to one proven beyond a reasonable doubt, contrary to the principles in R. v. Noble , [1997] 1 S.C.R. 874, at paras. 77-81. [8] Second, he argues that the trial judge’s conclusion that the only reasonable inference was that the appellant was more than a passive, uninformed spectator was itself unreasonable, as other reasonable inferences were available. [9] We do not accept either argument. [10] The trial judge’s use of the term “ prima facie ” was unfortunate. But, taking his reasons as a whole, it is clear that he did not reverse the onus of proof, lose sight of the fact that proof beyond a reasonable doubt was required, consider a prima facie case to be sufficient, or use the failure of the appellant to testify as a make-weight. [11] The trial judge began his analysis by referring to the Crown’s onus to prove its case on all counts beyond a reasonable doubt. He referred to the case as having been proven against MacLeod beyond a reasonable doubt. He expressly instructed himself that the appellant’s failure to testify was not to be used to draw any inference against her. And although he used the term prima facie , he followed it with a reference to four evidentiary considerations (summarized in para. 5 above) that satisfied him the appellant’s involvement as a party to the robbery was the only “reasonable inference to be drawn on this evidentiary record.” In other words, his ultimate conclusion, on the whole of the evidence, was that the appellant’s guilt was proven beyond a reasonable doubt. [12] Taken in context, the trial judge’s references to the absence of any explanation from the appellant are not indications that he was using the appellant’s silence to draw an inference of guilt, nor to give the Crown’s case an extra push. He did not, as the trial judge did in Noble , use the appellant’s silence as a piece of inculpatory evidence. Rather, consistently with what the majority of the Supreme Court in Noble described as inoffensive to the right to silence and the presumption of innocence, the trial judge here was simply recognizing “the fact that the evidence of the Crown stands alone. It must be evaluated on this basis. Contradictions that have not been offered cannot be supplied … the silence of the accused fails to provide any basis for concluding otherwise, once the uncontradicted evidence points to guilt beyond a reasonable doubt”: Noble , at para. 82. [13] The argument that the trial judge erred in concluding that the appellant’s involvement as a party was the only reasonable inference depends on parsing the four considerations he relied upon individually — for example, the fact that the events took place at the appellant’s apartment does not on its own exclude a reasonable inference that she was uninvolved in what occurred. But the trial judge did not treat each as sufficient individually; he considered them cumulatively. We see no error in his conclusion that those circumstances, taken together, permit no other reasonable inference than that the appellant was a party to the planned robbery. [14] For these reasons, the appeal is dismissed. “Paul Rouleau J.A.” “M. L. Benotto J.A.” “B. Zarnett J.A.” [1] MacLeod was charged with other offences arising from the same incident.

COURT OF APPEAL FOR ONTARIO CITATION: Khan v. 1806700 Ontario Inc., 2021 ONCA 724 DATE: 20211013 DOCKET: M52530 (M52457) Hourigan, Huscroft and Coroza JJ.A. BETWEEN Muhammad Aslam Khan Proposed Appellant/Moving Party (Moving Party) and 1806700 Ontario Inc. Plaintiff/Respondent (Responding Party) and Sandeep Johal Intervener/Respondent (Responding Party) Muhammad Aslam Khan, self-represented Joga Singh Chahal, for the respondent 1806700 Ontario Inc. Mathieu Bélanger, for the respondent Sandeep Johal Heard and released orally: October 7, 2021 by videoconference REASONS FOR DECISION [1] The moving party moves to set aside the order of the motion judge dated May 20, 2021, dismissing his motion for an extension of time for leave to appeal. The motion judge accepted that the moving party intended to appeal within the relevant period and that there was a brief period of delay. However, he found that the appeal had no merit. [2] A single judge’s decision on a motion to extend time is discretionary and entitled to deference: Machado v. Ontario Hockey Association , 2019 ONCA 210.  The motion judge applied the correct test and we see no error in his analysis. We agree with his conclusion that the appeal has no merit. Accordingly, the motion is dismissed with costs payable by Mr. Khan to the responding party 1806700 Ontario Inc. in the amount of $2,500, all-inclusive, and costs payable by Mr. Khan to the responding party Mr. Johal in the amount of $2,500, all-inclusive, for the costs of this motion. “C.W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Tomek v. Zabukovec, 2021 ONCA 723 DATE: 20211013 DOCKET: C68409 Hourigan, Huscroft and Coroza JJ.A. BETWEEN Judith Evelyn Tomek Applicant (Respondent) and Joseph Zabukovec , Edward Waters, as Litigation Administrator of the Estate of Joseph Zabukovec , and Mary Zabukovec Respondents ( Appellant / Respondent ) Dermot Nolan and Heather McKinnon, for the appellant Ronald Sleightholm, for the respondent Judith Tomek W. Ross Milliken, for the respondent Joseph Zabukovec Heard: October 7, 2021 On appeal from the judgment of Justice Judy Fowler Byrne of the Superior Court of Justice, dated May 8, 2020, with reasons reported at 2020 ONSC 2930. REASONS FOR DECISION [1] The subject of this appeal is a 15-acre wooded parcel of land in Caledon (the "Property") registered in the name of Joseph Zabukovec Sr. ("Joseph Sr."). [1] His plan in acquiring the Property was to sever lots and sell them for new home construction. Despite this plan, Joseph Sr. invited his son Joseph Zabukovec Jr. ("Joseph Jr.”) to build a house for his family on a 1.13-acre section of the Property (the "house lot"). [2] Joseph Jr. received the necessary approvals and began constructing a home on the house lot. He and his wife, Judith Tomek ("Judith"), moved into the partially completed home in 1989 and over the years finished the house using their own funds. While Joseph Sr. was a frequent visitor at the Property, he treated the house as the property of his son and daughter-in-law and had no input into the design of the home. Joseph Sr. applied to formally sever the house lot from the Property, with the intention of conveying it to Joseph Jr.  However, he was forced to withdraw his application after discovering that the severance was not available. [3] Joseph Jr. accepted that the house lot would not be conveyed to him during his father's lifetime but hoped that he would formally receive title to it in his father's will. That did not happen as his father died intestate in 2004. Joseph Jr. and Judith continued to reside in the home, pay taxes, and make improvements with the full knowledge of Joseph Sr.'s widow, Mary Zabukovec ("Mary"). [4] In 2011, Judith and Joseph Jr. separated. Prior to the trial below, they were able to resolve most of the issues relating to their marriage and separation in a comprehensive settlement agreement. The only significant remaining issue was their ownership interest in the Property.   At trial, Joseph Jr. and Judith maintained that they had a beneficial interest in the Property through an unjust enrichment claim or the principles of proprietary estoppel. Judith also argued that there was an agreement between her and Joseph Jr. on the one hand and Joseph Sr. on the other to convey the house lot to them. [5] On the consent of all parties, Edward Waters (“Edward”), the son of Joseph Sr. and Mary, was appointed Litigation Administrator of his father’s estate (the "Estate"). At trial, the Estate’s position was that there was no agreement, that Joseph Jr. and Judith did not have a beneficial interest in the Property, and that their claim for a proprietary interest was statute-barred. Mary did not participate in the litigation. [6] The trial judge ruled in favour of Joseph Jr. and Judith, finding that the Estate had been unjustly enriched with respect to the house's construction, improvement, and maintenance, but not with respect to the remainder of the Property. The trial judge also found that Joseph Jr. successfully made out the elements of proprietary estoppel regarding the house. Regarding remedy, she relied on expert evidence to find that the value of the Property, based on a cost approach that valued the land and the house separately, was $813,000. She granted Joseph Jr. and Judith joint beneficial ownership of 75% of the Property. [7] The Estate's appeal is restricted to the appropriateness of the trial judge's remedy. Specifically, it argues that the trial judge erred regarding the value of the land and failed to consider the contribution Joseph Sr. made to the construction of the house. [8] We agree that the trial judge erred in her consideration of the land value. The expert evidence was that the raw land was worth $400,000. In her analysis, the trial judge stated that $400,000 was the value of the improved land (i.e. the land plus the house). She apportioned that value 50% for the Estate and 50% for Joseph Jr. and Judith. The Estate submits that the entirety of the land portion should have been credited to Joseph Sr. [9] The trial judge apportioned the full value of the house, being $413,000, to Joseph Jr. and Judith. The Estate submits this was an error because it failed to take into account the work that Joseph Sr. put into the construction of the home.  It values that contribution at $100,000. [10] After taking into account Joseph Sr.’s work contributions and the value of the land, the Estate submits that the interest of Joseph Jr. and Judith in the Property is correctly valued at 38.5%. In the alternative, if only the land value is adjusted for, then Joseph Jr. and Judith’s beneficial interest in the Property should be set at 50.8%. [11] We agree that the error in the treatment of land value impacts the amount that the Estate was unjustly enriched. A similar argument can also be made regarding the work contribution of Joseph Sr. However, we are not persuaded that we should interfere with the order that was made by the trial judge. The difficulty with the Estate’s argument is that it ignores the available remedies where the elements of proprietary estoppel have been proven. [12] As the Supreme Court has stated, "[w]here a claimant has established proprietary estoppel, the court has considerable discretion in crafting a remedy that suits the circumstances": Cowper-Smith v. Morgan , 2017 SCC 61, [2017] 2 S.C.R. 754, at para. 46. The court also instructed that an "appellate court should not interfere unless the trial judge's decision evinces an error in principle or is plainly wrong": Cowper-Smith v. Morgan , at para. 46. [13] Although a trial judge does not have unfettered authority in crafting an equitable remedy, we find that the trial judge's remedy, in this case, was appropriate. There was ample evidence to establish that it was always the intention of the parties that Joseph Jr. and Judith would receive both the house lot and the house. Indeed, that was the purpose of Joseph Sr.’s aborted severance application. Had that application been successful, Joseph Jr. and Judith would have been the owners of their home and the house lot. The order of the trial judge is entirely consistent with that intended result. It awards them the value of the house and the house lot. It is, in our view, a just and equitable result in the circumstances. There is, therefore, no basis for this court to interfere with that order. [14] The appeal is dismissed. Regarding the costs of the appeal, the parties agreed that Joseph Jr. and Judith should each receive $12,500. However, there is a disagreement regarding whether the Estate or Edward should be paying these costs. This court has the discretion to order costs where the Litigation Administrator has acted unreasonably or in their own self interest: Wall v. Shaw , 2019 ONCA 929, 43 ETR (4th) 1, at paras. 54-55. In our view, Edward was acting in his own interest in pursuing this appeal and not in the interests of the Estate. We order that he pay the costs personally. “C.W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.” [1] First names are used in these Reasons for Decision for the sake of clarity and with no disrespect intended to the parties.

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: M.E. v. Ontario, 2021 ONCA 718 DATE: 20211014 DOCKET: M52619 (M52555) Hourigan, Huscroft and Coroza JJ.A. BETWEEN M.E. Appellant and Her Majesty the Queen in Right of Ontario and Children’s Aid Society of Toronto and Durham Children’s Aid Society Respondents M.E., self-represented Scott Hutchison, David Postel and Sheldon Inkol, for the respondents Heard: October 7, 2021 by videoconference REASONS FOR DECISION [1] This matter has a long procedural history. For present purposes, it is sufficient to focus on the motion brought by M.E. on October 9, 2020, wherein she sought to add additional causes of action and new parties to the action. The motion judge dismissed the motion as frivolous, vexatious, and an abuse of process under r. 2.1.01: Rules of Civil Procedure , R.R.O. 1990, Reg. 194. M.E. then sought leave to appeal the motion judge’s order to the Divisional Court. A panel of the Divisional Court dismissed that motion. [2] On May 17, 2021, M.E. applied to this court for leave to appeal the Divisional Court’s order. The Registrar has repeatedly informed her that her materials do not comply with the Rules and practice directions. On July 5, 2021, M.E. filed the underlying” Notice of Motion for Non-Compliance.” Simmons J.A. heard the motion on July 27, 2021. She adjourned the matter to a full panel, noting that while the Divisional Court’s order was final, the motion judge’s order concerned a motion to add causes of action, which may not be interlocutory. As a single judge, Simmons J.A. could not determine this issue. [3] We conclude that M.E. was seeking to add new causes of action. An order refusing leave to amend pleadings to plead a new cause of action is final: Atlas Construction Inc. v. Brownstones Ltd. (1996), 46 C.P.C. (3d) 67 (Ont. Gen. Div.). So is an order dismissing a motion to add a party, which M.E. also appears to have been trying to do: Bryson v. Kerr (1976), 13 O.R. (2d) 672 (Ont. Div. Ct.). Accordingly, leave to appeal is not required and an appeal lies as of right to the Court of Appeal: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 6(1)(b). [4] We order that the appeal of the motion judge’s order of October 9, 2020 may proceed in this court. Costs of this motion are reserved to the panel hearing the appeal. “C.W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the 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. Scholl, 2021 ONCA 726 DATE: 20211014 DOCKET: C66610 Rouleau, Benotto and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Cory Scholl Appellant Cory Scholl, acting in person Amy Ohler, appearing as duty counsel Avene Derwa, for the respondent Heard and released orally: October 7, 2021 by video conference On appeal from the conviction entered on April 18, 2018, and the sentence imposed on January 23, 2019, by Justice R. Masse of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant abandoned his conviction appeal. He appeals his designation as a dangerous offender at sentencing. His principal argument is that the court ought to have relied on the opinion of Dr. Booth who expressed reservations as to the appropriateness of a dangerous offender designation in this case. [2] We see no basis to interfere with the sentencing judge’s decision. The appellant’s trial counsel conceded that a dangerous offender designation was appropriate, and the appellant has led no fresh evidence suggesting ineffective assistance of counsel. [3] Further, the sentencing judge had before him the opinion of Dr. Watts who found that the appellant satisfied several of the criteria for the dangerous offender designation. It was open to the sentencing judge to accept this opinion. We can only interfere with a sentence if the designation is unreasonable. In light of this record, we see no basis to do so. [4] As a result, we grant leave to appeal sentence, but dismiss the sentence appeal. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Trudel (Re), 2021 ONCA 720 DATE: 20211014 DOCKET: C69037 Fairburn A.C.J.O., Doherty and Watt JJ.A. IN THE MATTER OF:  CHANTAL TRUDEL AN APPEAL UNDER PART XX.1 OF THE CODE Meaghan McMahon, for the appellant Sunil Mathai, for the respondent Attorney General of Ontario Barbara J. Walker-Renshaw and Kate Deakon, for the respondent Royal Ottawa Mental Health Centre Heard: October 7, 2021 by video conference On appeal from the January 12, 2021 disposition of the Ontario Review Board, with Reasons for Disposition dated January 26, 2021. REASONS FOR DECISION [1] In 2008, the appellant was found not criminally responsible. The index offence involved an aggravated assault, where the appellant stabbed a man in the chest while in a paranoid and psychotic state. She has been under the supervision of the Ontario Review Board since that time. [2] In her most recent review hearing, the appellant requested an absolute discharge or, in the alternative, a conditional discharge. That position was rejected. The Board concluded that the appellant remains a significant threat to the safety of the public and that a continuation of the detention order is necessary. [3] The appellant argues that the Board’s reasons reflect two errors. [4] First, the appellant contends that the Board failed to conduct an appropriate analysis regarding whether she constitutes a significant threat to public safety. The appellant says that the Board’s reasons fall short by failing to meet the principles of justification and transparency: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 84-86; Sim (Re) , 2020 ONCA 563, at para. 68. More specifically, the appellant argues that the Board failed to adequately explain why the following three factors, noted at para. 20 of its reasons, supported its conclusion that the appellant remains a significant threat to the safety of the public: (1) the appellant’s risk of relapse; (2) the appellant’s lack of insight into her mental illness and the need for medication; and (3) the appellant’s use of substances to the point that she recently decompensated after eloping from the location where she was required to live. This decompensation required hospital admission and stabilization. [5] We do not accept that the Board failed in its duty to justify or transparently explain the conclusion that the appellant remains a significant threat to public safety. [6] The Board’s reasons must be read in the context of the previous disposition, a detention order, and the fact that this court upheld that disposition on appeal: see Trudel (Re) , 2019 ONCA 759. In this type of situation, this Court’s primary focus must be on the period of time between the date of the prior disposition and the date of the annual review.  Importantly, the appellant’s last disposition was based upon largely the same evidence as was before the Board in the most recent hearing. To the extent that it differs, the differences point even more clearly toward a detention order than before, specifically the circumstances surrounding the appellant’s recent elopement and decompensation requiring hospital stabilization. [7] The impugned paragraph must also be read against the entire reasons, including the factual summary that supports the conclusions drawn in that paragraph. It must also be read against the factual record from the hearing, including the psychiatric evidence underscoring the appellant’s difficulties with substance abuse and her symptomatic nature during the period of time most recently under review. [8] Against that contextual backdrop, we conclude that the reasons provide a transparent and intelligible basis upon which to understand how the Board arrived at the conclusion that the appellant continues to be a significant threat to the safety of the public. [9] Second, the appellant argues that the Board failed to perform its inquisitorial duties in a way that would have allowed it to correctly determine the least onerous and least restrictive disposition commensurate with the safety of the public. In particular, the appellant suggests that the Board should have sought out evidence to assist in considering whether a conditional discharge could have been carefully crafted as a less onerous disposition while still addressing the concerns expressed by the treating psychiatrist. The appellant suggests that the Board should have sought out evidence on whether it would have been appropriate to order a conditional discharge with a treatment clause, a residence condition, and a condition directing her to quickly return to the hospital if required. [10] Respectfully, we disagree. [11] In light of the record, we see no abdication by the Board of its responsibilities. [12] While it is true that the Board performs an inquisitorial function, the demands arising from that function must be considered in context, including the record as developed before the Board and the positions of the parties as advanced before the Board. Here, the appellant was represented by counsel who did not lead evidence on these issues. Moreover, as reflected in the hospital report, the appellant took the position that she did not want any restrictions placed on her. [13] As well, the appellant’s psychiatrist testified that, in light of the appellant’s risk to the community, the hospital would need to be directly involved in approving her supervised community housing, something that can only be done through a detention order. The psychiatrist also emphasized the need for a quick return to the hospital should the appellant start to decompensate, something that can be more easily accomplished under a detention order than under the Mental Health Act , R.S.O. 1990, c. M.7. [14] Finally, the Board accepted the psychiatrist’s evidence that the appellant’s risk profile had actually increased since the last Board disposition involving a detention order. [15] Against that contextual backdrop, there was nothing that the Board needed to inquire into. [16] In our view, the disposition was carefully tailored to allow the appellant to progress toward even further community integration, including the possibility of being discharged into a 24-hour care group home when COVID-19 restrictions permit. [17] The appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 1476335 Ontario Inc. v. Frezza, 2021 ONCA 732 DATE: 20211015 DOCKET: M52846 (C69611) Brown J.A. (Motion Judge) BETWEEN 1476335 Ontario Inc., Aldo Rotondi, D'Andrea Management Inc. and Rick D'Andrea Plaintiffs (Moving Parties/Appellants) and Brenda Frezza , Onorio Frezza , Elio Ascenzo Frezza , Jane Frezza and Frezza Management Inc. Defendants ( Responding Parties/Respondents ) Anthony J. Gabriele, for the moving parties Jennifer McLeod, for the responding party, Brenda Frezza No one appearing for the responding parties, Onorio Frezza, Elio Ascenzo Frezza, and Jane Frezza Heard: October 14, 2021 by video conference ENDORSEMENT [1] In 2019 the moving parties, 1476335 Ontario Inc., Aldo Rotondi, D'Andrea Management Inc. and Rick D'Andrea, commenced an action that seeks, inter alia , declarations that the 2003 transfer of what are now two Bonnie Doon Road properties (the “Properties”) to the respondent, Brenda Frezza, was a fraudulent conveyance and that Ms. Frezza holds the former transferor’s interest in the Properties on a constructive trust for the moving parties. The action also seeks an order for the issuance of a certificate of pending litigation (“CPL”) for registration against the Properties. [2] By order dated May 28, 2021, Aston J. dismissed the moving parties’ motion for a CPL (the “Order”). [3] The moving parties have appealed the Order to two different courts. [4] On the one hand, they have commenced a motion for leave to appeal the Order to the Divisional Court. At the same time, they filed a notice of appeal with this court. The Divisional Court has put the leave motion on hold until this court determines whether the Order is final or interlocutory. [5] In this court the moving parties have brought two motions. The first seeks, in effect, a determination that the Order is final in nature and, therefore, an appeal lies to this court (the “Jurisdiction Motion”). The Jurisdiction Motion is scheduled to be heard at a later date (December 10, 2021) by a panel. [6] In the meantime, the moving parties have brought this motion before a single judge seeking, pursuant to s. 134(2) of the Courts of Justice Act , R.S.O. 1990, c. C.43, an “interim order” granting them leave to issue and register a CPL against the Properties. [7] The respondent seeks an adjournment of this motion on the basis that the motion materials were not served on it in a timely manner. [8] I need not address the merits of that request because I have determined that I must adjourn the motion in any event to the panel hearing the Jurisdiction Motion. [9] Section 134(2) of the Courts of Justice Act states: “On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal ” (emphasis added). As I interpret this section, it authorizes an appellate court to make an interim order where an appeal lies to that court. Since the powers of this court derive from statute, I have strong reservations that I possess the power to make an order under s. 134(2) where there is a dispute as to whether this court has jurisdiction to entertain an appeal from the Order. Were I to entertain the moving parties’ request for the issuance of a CPL, I would impliedly be determining the very question that will be before the panel: namely, whether the Order is final in nature and an appeal properly lies to this court. I am not prepared to determine, in effect, the very question the moving parties have placed before a panel. [10] At the same time, there is no doubt that Ms. Frezza is actively trying to sell the two Properties. While I do not think that I have the jurisdiction to make an order restraining her given the outstanding final/interlocutory issue, as a practical matter I think the interests of both parties can be fairly balanced by advancing the date for the hearing of the Jurisdiction Motion and adjourning this motion to be heard at the same time as the Jurisdiction Motion. [11] A panel is available on November 5, 2021 to hear both motions. Accordingly, I adjourn this motion to that date and direct that the Jurisdiction Motion be rescheduled for hearing on November 5 together with this motion. That date is peremptory to both parties. A total of 30 minutes is allocated for oral argument on the combined motions – i.e., 15 minutes for each party. [12] I make the following directions regarding the materials for this adjourned motion and the Jurisdiction Motion to be heard on November 5, 2021: (i) The respondents shall serve and file all responding materials for both motions, including factums and books of authorities, no later than Wednesday, October 27, 2021; and (ii) The moving parties shall serve and file any reply materials for both motions no later than Monday, November 1, 2021. [13] Evidently the date for the perfection of this appeal expires on October 15, 2021. I hereby extend the date for perfection until the disposition of both motions by the panel or such further date as may be set by the court. [14] The costs of today’s attendance are fixed in the amount of $250, inclusive of disbursements and applicable taxes, with the determination of who pays whom left to the panel on November 5, 2021. [15] I conclude by observing that one of the great on-going failures of the Ontario civil justice system is the confusion entrenched in the Courts of Justice Act , R.S.O. 1990, c. C.43 concerning appeal routes from orders made by judges of the Superior Court of Justice: Does the appeal lie with leave to the Divisional Court or as of right to this court? Such confusion inflicts unnecessary legal costs on parties, delays the resolution of appeals on their merits and, as this case illustrates, sows uncertainty about how a party can attempt to protect its rights pending an appeal. [16] There is absolutely no excuse for such confusion to continue. Simple “bright line” appeal route solutions are available. I would hope that at some point in the near future the Ontario Legislature will awake and address this far-too-long-outstanding stain on our civil justice system. In my respectful view, the Legislature needs to enact legislation that creates an unambiguous “bright line” explaining when an appeal lies to the Divisional Court and when it lies to the Court of Appeal for Ontario. The current final/interlocutory dividing line is an expensive, time-wasting anachronism. Implementing a “bright line” solution is not a hard task: all it needs is a bit of creativity, political will, and concern for the health of our ailing civil justice system. “David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728 DATE: 20211015 DOCKET: C68253 Feldman, Harvison Young and Thorburn JJ.A. BETWEEN John Hucsko Plaintiff (Respondent) and A.O. Smith Enterprises Limited Defendant (Appellant) Jeffrey B. Simpson, Paul Boshyk and Kristen Pennington, for the appellant Pamela Krauss, for the respondent Heard: April 12, 2021 by video conference On appeal from the judgment of Justice Gerald E. Taylor of the Superior Court of Justice, dated April 22, 2020, with reasons reported at 2020 ONSC 1346. Feldman J.A.: A. Introduction [1] The appellant employer, A.O. Smith Enterprises Limited, terminated the employment of the respondent employee, John Hucsko, for just cause following an investigation into a complaint made by a female co-worker, the complainant, regarding four inappropriate comments that constituted sexual harassment. Following the investigation, the respondent was offered the opportunity to take remedial action including sensitivity training, which he agreed to, and to make a direct apology to the complainant, which he refused. Following that refusal, the appellant terminated the respondent’s employment for just cause. [2] The trial judge found that the termination for cause was not justified, and awarded damages to the employee in lieu of 20 months’ notice. [3] For the following reasons, I would allow the appeal. The trial judge erred in law by failing to find that the inappropriate, demeaning comments that the employee made to the complainant justified the action taken by the employer, and that the employee’s failure to accept the opportunity offered by the employer to remediate the situation resulted in an irreparable breakdown in the employment relationship that could not be tolerated by the employer. B. Facts [4] The respondent, a Senior Product Designer, was a 20-year employee with the appellant or its predecessor when his employment was terminated on July 25, 2017. The complainant joined the employer as a Project Manager in 2014. She worked with the respondent on a number of projects. The respondent was 62 years old at the time of the trial. The complainant was about ten years younger. [5] On June 28, 2017, the complainant made a formal complaint to the employer through Nodine Kalcic, the Human Resources Manager, in which she reported four separate incidents where Mr. Hucsko made comments to her that were inappropriate. She included her responses to the comments as well as a description of the involvement of Mr. Hucsko’s immediate superior, Ayman Abdel-Rehim, a Product Development Engineering Manager. The formal complaint read as follows: Following is the description of incidents pertaining to inappropriate comments/gestures made by John Hucsko: 1.       The day after all managers in the engineering department had dinner with Robert during one of his visits, John approached me and asked how the dinner was and I told him that “it was good, we all had a good time” and then he asked if I danced on the tables, in response I told him that it was an inappropriate comment and walked away 2.       John, myself and Ayman were sitting in Ayman's office discussing project progress and I had posed a question that “ok so what is our step, what do we need to do next” in response John said to me that “now you need to go and sit on Simon's lap and ask him nicely to do…” (mentioned some action items) in response Ayman and I both told him that it was an inappropriate comment; I also approached Ayman afterwards and asked him to talk to John and make sure he understands that this is his last warning if he doesn't refrain from making such comments I will report to HR, as per Ayman he communicated that to John; I had also mentioned the incident number 1 to Ayman. I started to keep John at one arm distance and so John approached me and asked if everything was alright between us and I told him that I did not appreciate his comments and that they were inappropriate and requested that he refrains from making such comments so as to have a respectful working relationship 3.       Week of June 19 th I was at John's desk talking about manuals and labels for one of our projects and at the end of the conversation we spoke a bit about gardening and I said that I finally got the front yard done with planting new plants but paid for it the next day and he responded “oh it's all good any reason for you to bend over and go down on your knees” at the time I did not say anything and walked away from his desk thinking what did he mean because it did not sound right to me, the choice of words the way he said it, it just didn't sound right. I had not mentioned this incident to Ayman as I wasn't sure about it and then soon after that the incident number 4 happened 4.       On Monday June 26 th I approached John at his desk and told him that he needs to send me the power point presentation for the design review that I had scheduled for June 27 th , in response John said that he was about to do that and then he went to Outlook and started composing an email to me so he could send the ppt, as he clicked the letter "S" in the address field it automatically dropped down a list of names of the people starting with the letter "S" and my name was on top of the list so I said “hey look I am on top of the list” and in response he said “of course you are on top, you are getting pumped from under the skirt till you can't stand anymore” and he made a multiple thrusting gesture with his hips while he made this comment; I at that point was very shocked and infuriated by his comment and I walked away from his desk; I did not say anything to anyone that day but the next day I approached Ayman and told him what John had said, Ayman and I both agreed that we can no longer deal or resolve this issue within the team and that it needs to be brought to HR's attention [6] In her testimony at trial, the complainant testified about her understanding of each of the comments. According to the trial judge, she took the “dancing on the tables” comment as a reference to exotic dancing, the “sit on lap” comment as a reference to lap dancing and flirting with a co-worker, the “down on your knees” comment as a reference to a sexual position, and the “pump the skirt” comment as a reference to a sexual act. The complainant was not cross-examined on any of her testimony. As a result, her description was unchallenged. [7] Mr. Hucsko provided the court with explanations regarding each of the four incidents and his statements to the complainant. The “dancing on the tables” comment followed a managers’ dinner that the complainant, the only female manager, had told Mr. Hucsko she did not want to attend, but then when they discussed it the following day, she said she was happy she went and that everyone had enjoyed themselves. Mr. Hucsko’s position was that he then asked not if she had danced on the tables, but if “everyone” was dancing on the tables, meaning that they had had a lot of fun. [8] With respect to the “sit on lap” comment, Mr. Hucsko testified that it arose in a meeting among himself, Mr. Abdel-Rehim and the complainant, where she was complaining that she had not received information from another co-worker, Simon. Mr. Hucsko said he told her to sit on Simon until he produced the information. His intent was to convey that she should pin him down until she received the information she needed. [9] The third incident occurred when Mr. Hucsko and the complainant were discussing gardening. Mr. Hucsko testified that he suggested she use a kneeling pad while removing weeds from her lawn. He denied making a thrusting gesture with his hips, stating that his chair had become stuck in a rut in the carpet in his cubicle, and he was trying to extract the chair from the rut. [10] Regarding the “pump the skirt” comment, Mr. Hucsko’s explanation at trial was that he and the complainant were discussing a difficult project that she had managed, and that he told her she would be praised for completing successfully. He told her that “they’re going to pump so much sunshine up [her] skirt, [she] won’t be able to sit down”, a colloquialism taken from a 1970s movie that means to praise someone or give them a lot of credit. [11] In response to receiving the written complaint from the complainant, the employer appointed John Weiler, the Director of Finance and Administration, and Ms. Kalcic to conduct an investigation. They held a meeting with Mr. Hucsko where they read the complainant’s allegations to him, although they did not give him a copy of her written complaint. At that time his response to each incident was: a) he did not recall making the “dancing on tables” comment, but if he did, it was a colloquialism about having a good time, and he suggested wording he might have used; b) he also did not specifically recall the meeting where he was alleged to have made the “sit on lap” comment, but he did not deny making it, and said it meant to pin someone down so they couldn’t get away, and did not have a sexual connotation; c) he did not recall the “down on your knees” comment, but he did not deny making it and he confirmed that they did discuss gardening; and d) he explained the “pump sunshine up the skirt” comment was a colloquialism meaning to give a person a lot of praise. [12] Mr. Hucsko suggested that the complainant’s complaints were motivated by his challenging her at a meeting, and suggested other employees to interview, which was done. In the investigators’ interview with Mr. Abdel-Rehim, he confirmed he had been present when the “sit on lap” comment was made, he had told Mr. Hucsko that it was inappropriate, but he did not take it seriously enough to report it to the human resources department. He also commented that the complainant could be sensitive to comments made to her. Another employee confirmed that the complainant had been very upset with Mr. Hucsko at a meeting, and commented that Mr. Hucsko acted professionally by removing himself from the meeting. Another employee was asked if she had witnessed anyone making inappropriate comments and responded that she had not. [13] The investigation also included a meeting with the complainant. She told the investigators that she wanted Mr. Hucsko’s comments to stop and she wanted him to recognize that they were unwelcome. She also told them that if Mr. Hucsko only received a slap on the hand, she would have to decide whether to resign from her position. [14] A few days after his initial meeting, Mr. Hucsko requested a second meeting with the investigators. At that meeting, he explained that the hip thrusting gesture described by the complainant was as a result of his chair becoming stuck in a rut in the carpet. He also said that he made the dancing on tables comment but it was directed at the group who were at the meeting and not at the complainant specifically. [15] Ms. Kalcic inspected Mr. Hucsko’s work cubicle when he was not present and noticed that the carpet was worn, but was unable to locate a rut which would cause the chair to become stuck. She also searched the internet and found a reference to dancing on tables consistent with Mr. Hucsko’s explanation that it was a colloquialism. Mr. Weiler searched the internet and found a reference from a 1970s movie about pumping sunshine up one’s skirt being a form of praise. [16] Following the investigation, they concluded that Mr. Hucsko had made the inappropriate comments, and met with him on July 10. At that meeting, they gave him the following memo: TO:             John Hucsko FROM:        John Weiler DATE:         July 10, 2017 RE:              Investigation Summary and Final Warning John, This summarizes the Company’s findings with respect to a female employee’s allegation of sexual harassment due to inappropriate comments you made directed to her on at least four occasions. The Company has conducted an investigation and has concluded that you made inappropriate comments. Further, you were specifically advised by your supervisor on at least one occasion that your comments were inappropriate. Despite this, you continued to make inappropriate comments. This is a very serious matter. Your conduct is not acceptable and will not be tolerated by the Company. The required corrective action is as follows: 1. Final Warning – This corrective action memo will-become a permanent part of your personnel file. This is a final warning. Should there be another instance of inappropriate comments of this nature toward the same employee or another employee, it will result in your immediate discharge. 2. Additional Training – You will be required to participate in sensitivity training to familiarize you with the impact your comments have on others. The Company will arrange this training and advise you when it is scheduled. 3. Apology – You will be required to provide a direct apology to the female employee to whom you directed your inappropriate comments. Your supervisor and Human Resources Manager will also be present. Please sign below to indicate that you have received this final warning. [17] Mr. Hucsko did not agree with the investigation’s conclusions and asserted that he had not done or said anything inappropriate to the complainant. He asked for time to seek advice, and consulted a lawyer who wrote to the appellant on July 19. In that letter, the lawyer advised that while Mr. Hucsko was adamant that training was unnecessary, he would comply with the additional training requirement set out in the investigation summary. However, he was not prepared to issue an apology to the complainant admitting to any wrongdoing. The letter continued: Given the circumstances where the facts are in dispute and the complaint is disconcerting to Mr. Hucsko who prides himself on his professionalism, it is our position that an apology is not appropriate. [18] The employer did not respond to the lawyer’s letter. It suspended Mr. Hucsko, and then, on July 25, telephoned him and read a letter that was subsequently delivered to him. The letter stated that Mr. Hucsko’s employment was being terminated for cause effective immediately due to “an irreparable breakdown in the employment relationship” based on: I. You made inappropriate and vexatious comments to a co-worker, despite being advised by both the co-worker and your supervisor that your comments were unwelcome and inappropriate. The Company conducted an investigation into the matter and found your conduct to be inconsistent with the Company’s policies related to anti-harassment and respect in the workplace. II. Throughout the investigation and following its conclusion you have shown no remorse for your misconduct and have demonstrated an inability to recognize the seriousness of the matter. Therefore, the Company does not believe that you are willing and able to correct your behaviour going-forward. III. Your refusal to accept and comply with the Company’s decision on corrective action constitutes serious, willful insubordination that cannot be condoned by the Company. C. Findings of the Trial Judge [19] The trial judge found that although the focus of the trial was about whether the employee’s comments amounted to sexual harassment, it was unnecessary for him to categorize the comments because regardless of how they were categorized, they did not justify summary dismissal. He found that it was unclear whether the employer had concluded that the employee’s conduct amounted to sexual harassment. He also found that the employee was not dismissed for sexual harassment but for “serious and wilful insubordination”, which he said was not specified in the termination letter, but which he presumed was a reference to an apology to the complainant. [20] The trial judge noted that the letter did not indicate that the apology could be in writing or that the employee could apologize only for a misunderstanding of his comments. Mr. Weiler had testified at the trial that such an apology would have been acceptable. The trial judge criticized the appellant for failing to negotiate the content of the apology with the employee before terminating his employment after 20 years of service. He also found that an important factor in the appellant’s decision to terminate was that the employee had consulted a lawyer, and that that was not a justifiable reason to dismiss an employee of long service. [21] In coming to the result of the trial, the trial judge found that the employer had faced a situation where “two employees were in a difficult working relationship” and the employer was entitled to choose which of the two employees it wished to continue to employ. However, “[w]hat the [appellant] was not entitled to do was create a situation in which it could rely on just cause to terminate the [respondent’s] employment.” [22] The trial judge’s ultimate finding was that the employee’s conduct “did not justify a conclusion that there had been an irreparable breakdown in the employment relationship.” He went on to calculate the appropriate period of notice and awarded damages in lieu of notice. D. Issues [23] The basis of the appellant employer’s appeal can be broken down into three main issues: 1) Did the trial judge make a palpable and overriding error of fact by finding that the appellant did not conclude that the respondent’s four comments to the complainant amounted to sexual harassment? 2) Did the trial judge err in law by failing to correctly apply the test for determining whether the appellant had just cause to dismiss the respondent? 3) Did the trial judge err by failing to find that the appellant had just cause to terminate the respondent’s employment? E. Analysis (1) Did the trial judge make a palpable and overriding error of fact by finding that the appellant did not conclude that the respondent’s four comments to the complainant amounted to sexual harassment? [24] The trial judge came to the conclusion that it was “unclear” whether the employer made a finding, following its investigation, that the four impugned comments amounted to sexual harassment of the complainant. His conclusion is contrary to both the written and testimonial evidence. [25] The Investigation Summary and Final Warning dated July 10, 2017 that the appellant handed to the respondent, begins with the following statements: This summarizes [A.O. Smith]’s findings with respect to a female employee’s allegation of sexual harassment due to inappropriate comments you made directed to her on at least four occasions. [A.O. Smith] has conducted an investigation and has concluded that you made inappropriate comments. [26] The investigation’s finding that the comments were inappropriate was in the specific context of a complaint of sexual harassment. The investigation did not conclude that the comments were “inappropriate” in the abstract. It concluded that the specific allegation of sexual harassment due to inappropriate comments was substantiated. There was nothing unclear about this conclusion. [27] Nor was it unclear to the respondent. In his cross-examination testimony, he agreed that in the meeting where he was given the Investigation Summary and Final Warning document, he was told that his comments constituted sexual harassment, and that even if the investigators had not used the word “sexual” in the meeting, he understood that that was their finding. [28] In addition, Mr. Weiler testified that the investigators had concluded that the comments fit the definition of sexual harassment in the employer’s Workplace Harassment Policy & Procedure, in that they were inappropriate comments of a sexual nature that were known or ought to have been known to be inappropriate. They also concluded that the comments fit the definition of sexual harassment under the Occupational Health and Safety Act , R.S.O. 1990, c. O.1, and that the respondent had singled out the complainant for those comments because of her gender. Mr. Weiler explained that they had taken all four comments into account and that they saw a pattern of comments with a sexual nature. The trial judge made no adverse credibility finding against Mr. Weiler, nor did he suggest a basis to reject the conclusions reached by the investigation. [29] In my view, the trial judge made a palpable and overriding error of fact, based on the record, when he stated that it was unclear whether the appellant had found that the four comments constituted sexual harassment. The evidence was clear that the appellant made that finding and communicated it to the respondent, and that he understood it. (2) Did the trial judge err in law by failing to correctly apply the test for determining whether the appellant had just cause to dismiss the respondent? [30] The appellant submitted that the trial judge erred by failing to properly apply the test for just cause and thereby side-stepped the “core question” in this case, namely, whether the employee had engaged in misconduct that gave rise to a breakdown in the employment relationship or that was irreconcilable with sustaining the employment relationship. I agree that the trial judge failed to correctly apply the test set out in this court’s decision in Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), that explained and elaborated on the test in McKinley v. BC Tel , [2001] 2 S.C.R. 161. [31] Referring to the Supreme Court of Canada decision in McKinley , at paras. 48, 51 and 53, the trial judge stated that the test to determine whether an employer was justified in terminating the employee’s employment for cause must be assessed in context, and that a balance must be struck between the severity of the employee’s conduct and the sanction imposed. These statements are correct. [32] However, in applying the test, the trial judge erred by failing to properly identify and characterize the conduct for which the employee was terminated. The trial judge found that the underlying conduct for which the employee was disciplined, and which the employer found to be sexual harassment, was irrelevant to the calculus because the basis for the termination was only the employee’s failure to apologize as instructed. The trial judge concluded that the employee’s refusal to apologize did not amount to a breakdown in the employment relationship. [33] I will examine these errors in the context of the three-part test for determining whether termination for cause was justified, as explained in this court’s decision in Dowling , at paras. 49-50: [49]    Following McKinley , it can be seen that the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional – dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. This is a factual inquiry to be determined by a contextual examination of the nature of the misconduct. [50]    Application of the standard consists of: 1. determining the nature and extent of the misconduct; 2. considering the surrounding circumstances; and 3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response). [34] In Dowling , the court went on to explain the requirements of each step. At the first step, the nature and extent of the misconduct must be determined, and the employer is entitled to rely on wrongdoing by the employee that is discovered both before and after the termination. The second step considers the employee within the employment relationship, including the employee’s age, employment history, seniority, role and responsibilities, and for the employer, the type of business, any relevant policies or practices, and the employee’s position in the organization, including the degree of trust reposed in the employee. The third step assesses “whether the misconduct is reconcilable with sustaining the employment relationship”, and “whether the misconduct is sufficiently serious that it would give rise to a breakdown in the employment relationship”: Dowling , at paras. 51-53. [35] In oral submissions, counsel for the respondent argued that although the trial judge did not refer to the Dowling test, he implicitly applied this three-step approach in his reasons, where he found that however the impugned comments were characterized, they did not warrant summary dismissal. I would reject this submission. The trial judge’s analysis, in substance, does not engage the analytical steps explained in Dowling . [36] The first step of the test is to determine the nature and extent of the misconduct. The four comments that the respondent made to the complainant were the subject of a formal complaint of sexual harassment and a misconduct investigation. That investigation resulted in a finding that the comments were inappropriate, and the requirement that the respondent take two steps to address the situation: take sensitivity training and apologize to the complainant. The respondent agreed to the training but refused to make an apology. [37] The respondent’s conduct consisted of making the four inappropriate comments, including after he was told by the complainant that they were inappropriate and unwelcome and after he was warned by his superior, Mr. Abdel-Rehim, and then his refusal to apologize when he was told by his employer that that was required as discipline to remedy the situation. [38] The refusal to apologize is only part of the misconduct that the appellant had to consider when deciding whether there has been a breakdown in the employment relationship. The refusal to apologize did not occur in a vacuum. The degree of seriousness of the misconduct that led to the discipline, and then to the dismissal, is critical to the ultimate assessment of the propriety and proportionality of the employer’s response. But the trial judge eschewed this analysis, finding instead that the nature and seriousness of the respondent’s comments were irrelevant and focusing solely on his refusal to apologize. [39] The trial judge also did not adequately address the second step of the analysis. While he did take into account the fact that the respondent was a long-term 20-year employee of the appellant, he did not discuss or weigh such factors as the Workplace Harassment Policy of the employer and the recent training the respondent had undergone with respect to the Policy. He also did not consider the senior position the respondent held and the degree of trust that arose from that in the employer-employee relationship. [40] When it came to the third step, the trial judge’s assessment of whether dismissal was warranted by the respondent’s misconduct was tainted by his failure to consider, as part of that misconduct, the inappropriate, sexually harassing comments that the respondent made to the complainant, that were the basis for the investigation and discipline. (3) Did the trial judge err by failing to find that the appellant had just cause to terminate the respondent’s employment? a) The Nature and Extent of the Misconduct [41] In order to apply the first step of the three-part test from Dowling , the trial judge was required to decide whether the respondent’s four impugned comments amounted to sexual harassment and to assess that misconduct, along with the refusal to apologize, which together formed the basis for the appellant’s decision to terminate the respondent’s employment. [42] The Supreme Court provided the following definition of sexual harassment in the workplace in its decision in Janzen v. Platy Enterprises Ltd. , [1989] 1 S.C.R. 1252, at p. 1284: Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas , supra , and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being. [43] Sexual harassment is not confined to actions but includes comments with a sexual innuendo. In Arjun P. Aggarwal and Madhu M. Gupta’s well-recognized text, Sexual Harassment in the Workplace , 3rd ed. (Toronto: Butterworths, 2000), at p. 119, the authors provide the following summary of sexual harassment in the workplace: [B]riefly summarized, sexual harassment is a form of discrimination based on sex. It occurs when a person is disadvantaged in the workplace as a result of differential treatment in the workplace. It is an unwarranted intrusion upon the sexual dignity of a person. It consists of acts that are unwarranted, unsolicited, and unwelcome. It can be overt or subtle. Even if the nature of the harassment is not physical, it can still be considered to be sexual harassment if it creates a poisoned environment, even if there is no economic consequence such as loss of one’s job, loss of seniority, or economic consequences of a similar nature. It is also clear that even if it might be considered that what has occurred is sexual banter, common to the workplace, if a person finds it objectionable and makes it known in clear and precise terms that such actions are not acceptable to such person, then that is the standard of behaviour that is established vis-à-vis that person. [44] And as far back as 1998, Carthy J.A. concluded this court’s decision in Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), with the observation that, even in an industrial plant where “no one expects profanity or vulgarity to be eliminated … unwelcome conduct or expression based upon gender cannot be tolerated”: at p. 590. [45] It is also important to view the respondent’s comments in the context of the appellant’s written Workplace Harassment Policy, which contains the following definition of sexual harassment: Sexual harassment is unsolicited conduct, comments or physical contact of a sexual nature that is unwelcome to the recipient. It includes any unwelcome sexual advances (oral, written, physical), requests for sexual favours, sexual and sexist jokes or remarks and the display of degrading or offensive material when: a. such conduct might reasonably be expected to cause insecurity, discomfort, offence or humiliation; or b. such conduct has the purpose or effect of interfering with a person’s work performance or creating an intimidating, hostile, offensive work environment; or c. submissions to such conduct is made either implicitly or explicitly a condition of employment; or d. submission to, or rejection of, such conduct is used as a basis for any employment decision (i.e. job security, promotion, change in salary and benefits). [46] Applying these definitions and descriptions of sexual harassment to the four comments the respondent made and the circumstances in which they were made, there is no doubt that they constituted sexual harassment of the complainant. [47] First, they were each based on gender and bore an unmistakable sexual connotation. They were comments that would only have been made to a woman, not to a man. [48] Second, the comments were demeaning and undermined the dignity of their recipient. They implied provocative behaviour by the recipient or that she welcomed sexual suggestions by the respondent. [49] Third, the comments were unwelcome and the respondent knew that. He was told as much by the complainant, as well as by his superior Mr. Abdel-Rehim when he heard the respondent make the “sit on lap” comment. [50] Fourth, they created a poisoned atmosphere for the complainant in her workplace. In the words of the appellant’s Workplace Harassment Policy, the comments were unsolicited and unwelcome, they were of a sexual nature, and they might reasonably be expected to cause discomfort and humiliation and create a hostile and offensive work environment. b) The Surrounding Circumstances [51] At the second step of the test, the court considers the circumstances of both the employee and the employer. The respondent had just recently received training on the Workplace Harassment Policy and, as a senior employee with a lengthy 20-year tenure, he would have been trusted to abide by the Policy in his relations with his co-workers. The complainant was a project manager who had to work closely with the respondent from time to time. He was clearly expected to treat her with dignity and respect. [52] The appellant’s Workplace Harassment Policy is another relevant consideration. The Policy provided a complaints procedure that was followed by the appellant. It conducted an investigation, including giving the respondent the opportunity to address the allegations against him. It determined that he had made sexually inappropriate comments to the complainant, and delivered its findings to him along with its decision regarding the steps he was required to take to address the situation. [53] The Policy sets out the corrective action that the employer may take if it finds that an employee engaged in harassment or sexual harassment in the workplace, up to and including termination. It provides: Corrective Action Where an investigation substantiates conduct contrary to the policy, corrective action will be taken. Such corrective action will include addressing any relevant issues in the work environment, as well as addressing any employees who have personally engaged in comments or conduct contrary to this policy. The objective of the corrective action directed at individuals is to change attitudes and behaviour and eliminate workplace harassment or discrimination as defined by the policy. Such action may range from educating such persons on the appropriateness of his or her behaviour to transfers, demotions, suspensions or termination. Any disciplinary action will be noted on the employee’s personnel file. c) Whether Dismissal Is Warranted [54] Having identified the nature and extent of the misconduct by the respondent, and taken into account the surrounding circumstances, the third step of the test requires the court to determine whether the misconduct was sufficiently serious that it resulted in a breakdown of the employment relationship, and whether dismissal was a proportional response by the appellant. [55] In his testimony at trial, the respondent confirmed that he understood that sexual harassment was a “fireable offence” and that that was a common understanding within the organization. [56] However, the appellant did not initially terminate the respondent’s employment as a result of his sexually harassing conduct. It gave him the opportunity to redeem himself and to save his job by taking sensitivity training and apologizing to the complainant. In his testimony, the respondent described the course of corrective action directed by the employer as an “ultimatum”, and understood that the memo constituted a “final warning”. This was a fair and proportionate response by the employer. [57] In response, the appellant consulted a lawyer, as he was entitled to do, and gave his response through counsel. He agreed to take the additional sensitivity training, but at the same time, he was “adamant” that it was unnecessary. This indicated a complete failure to acknowledge the nature and the seriousness of his conduct, and the effect it had on the complainant and on the atmosphere of the workplace. [58] In addition, through his lawyer’s letter, the respondent refused to “issue an apology to [the complainant] admitting any wrongdoing”, on the basis that the facts were in dispute and the complaint was disconcerting to him. The letter expressly took the position that an apology was not appropriate, and did not seek any negotiation of the form or terms of an apology. In his testimony, the respondent acknowledged that “if you’re guilty of sexual harassment, or any kind of harassment, the complainant or the victim deserves an apology. That’s a no-brainer.” However, he stood firm in his position that “I was not going to apologize, because I did not harass that woman”. [59] In those circumstances, the only conclusion the appellant could reach was that there was a complete breakdown in the employment relationship as (i) he was either unwilling or unable to understand the purpose and effect of the Workplace Harassment Policy and to take its requirements seriously and (ii) he was unwilling to accept the discipline imposed on him as a consequence of his misconduct of sexually harassing a co-worker. As a result, the appellant could have no confidence that the respondent would not continue with the same type of misconduct in the future. [60] Faced with the respondent’s lack of contrition, lack of understanding of the seriousness of his conduct, and his refusal to comply with the reasonable and essential requirement of an apology to the complainant and target of his comments, the appellant’s decision to terminate the respondent’s employment was a proportional and wholly warranted response. [61] It follows that I reject the trial judge’s suggestion that in those circumstances, it was incumbent on the appellant to try to negotiate an acceptable form of apology with the respondent. I similarly reject the respondent’s submission in oral argument that the appellant was required to warn the respondent that if he did not apologize, his employment may be terminated. The respondent was treated fairly. He refused to comply with the discipline imposed and understood that this discipline presented an “ultimatum”. He could not have reasonably expected that he would be able to continue with his employment without apologizing to the complainant for his comments, that were found to be inappropriate. [62] Contrary to the observation of the trial judge, this was not a situation where the employer was faced with two employees who could not get along and had to choose between them. One employee had engaged in workplace misconduct. It was that employee who had to either accept the appropriate disciplinary measures imposed by the employer to retain his position, or risk losing that position. [63] I also reject the trial judge’s conclusions that the appellant’s decision to terminate the respondent’s employment was motivated by the fact that he sought legal advice, and that it was the appellant that created a situation that gave it just cause to terminate. These conclusions find no basis in the record. [64] The appellant’s decision to terminate the respondent’s employment in these circumstances was justified and appropriate based on the three-part test from Dowling . F. Conclusion [65] I would allow the appeal, set aside the judgment below, and dismiss the claim. There is therefore no need to address the issue of mitigation. [66] Counsel advised the court that they would try to agree on costs. If they are unable to agree, they may make brief written submissions (maximum three pages) within three weeks of the release of these reasons, addressing the costs of the appeal and below. Released: October 15, 2021 “K.F.” “K. Feldman J.A.” “I agree. Harvison Young J.A.” “I agree. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Kormendy, 2021 ONCA 725 DATE: 20211015 DOCKET: C64638 Rouleau, Benotto and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Kenneth James Kormendy Appellant Kenneth James Kormendy, acting in person Jessica Smith Joy, for the respondent Heard: in writing On appeal from the conviction entered on November 21, 2016 by Justice Christopher Bondy of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of five counts of attempted murder and arson. He was sentenced after trial to 11 years’ incarceration. The Crown appealed the sentence and this court increased it to 20 years less credit for pre-sentence custody. [2] He appeals his conviction alleging ineffective assistance of his trial counsel. [1] FACTS IN BRIEF [3] The Crown alleged at trial that the appellant attempted to kill his girlfriend and her two daughters, then aged one and seven, by setting fire to her house while they were inside. The appellant testified that he did not set the fire. Instead, he implied that his girlfriend must have started the fire because he was breaking up with her. The trial judge rejected his evidence and found the Crown’s case “overwhelming”. [4] The appellant’s claim of ineffective assistance of counsel focuses primarily on trial counsel’s decision to admit the voluntariness of his police statement. The appellant says his statement was not voluntary because he was intoxicated, overtired, and upset because of the fire. He also did not review the statement before he testified at trial, the result of which was that his testimony was inconsistent with what he said to the police. The inconsistencies, he submits, related to key issues including who started the fire, the motive for the fire and how he sustained an injury to his hand. [5] Crown counsel took the position that the statement would not be led as part of its case. However, in the week before trial, he approached defence counsel for a position on the use of the statement for cross-examination. Trial counsel was well familiar with the law on voluntariness and concluded that the appellant was cautioned, had the opportunity to speak to counsel several times in advance of the police interview and was treated respectfully. Throughout the police interview the appellant was responsive to detailed questions asked. The appellant did not tell his counsel that he was intoxicated and in fact had denied that he was intoxicated. Trial counsel discussed the statement with the appellant, who – according to trial counsel – did not want to view it. ANALYSIS [6] The analysis of ineffective assistance of counsel proceeds on a strong presumption that the counsel’s conduct fell within the wide range of reasonable professional assistance. The purpose of the inquiry is not to grade trial counsel’s performance, but to determine whether a miscarriage of justice occurred : see R. v. Joanisse (1995) , 85 O.A.C. 186 (C.A.) at para. 74, leave to appeal refused, [1996] S.C.C.A. No. 347. [7] To determine whether a miscarriage of justice has occurred, the court considers whether the appellant has established the following: 1. the facts material to his claim on a balance of probabilities; 2. that trial counsel’s representation (or performance) was incompetent; 3. that a miscarriage of justice occurred due to the incompetent representation (the prejudice aspect of the claim). [8] If there is a factual basis for the claim, the court first considers whether a miscarriage of justice occurred. If there is no miscarriage of justice, it is unnecessary to proceed with the performance component of the claim: see Joanisse , at paras. 71-73; R. v. Fiorilli , 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 51-59. [9] The appellant has not established on a balance of probabilities that there is a factual basis for his claim that his counsel refused to show him the video statement or tell him that it would be used in cross-examination. [10] In any event, even if the factual component had been met, the appellant fails on the prejudice component. While the trial judge did assess the appellant’s inconsistent statements in his analysis, he also provided detailed and extensive reasons for otherwise rejecting the appellant’s testimony, in particular: 1. The trial judge rejected his evidence about the events leading up to the fire as contrary to the text messages the appellant had sent. 2. The trial judge found the text messages between the appellant and his girlfriend corroborated her characterization of their relationship, not his. 3. The trial judge rejected the appellant’s evidence about how the fire started because it was inconsistent with the evidence of the expert witness, who concluded that the bedroom door was closed when the fire started. The appellant testified that the bedroom door was open. The trial judge believed the expert witness and did not believe the appellant. 4. The trial judge did not accept the appellant’s explanation for the injury to his hand. The appellant said that he burned his hand while attempting to open the child’s bedroom door once the fire had engulfed it. The trial judge found that this evidence did not make sense considering the appellant’s testimony that he was unsure if there was anyone in the bedroom. Further, if the door was open as the appellant maintained, it would have been unnecessary to touch the doorknob to open the door. Finally, the appellant’s injuries were consistent with the expert testimony on expected injuries from igniting gasoline vapours by hand. 5. The appellant testified that he did not call into the child’s bedroom once the fire started as he was unsure if anyone was in the bedroom. The trial judge found that this evidence lacked harmony with the appellant’s own earlier testimony that he was aware that the child was in the bedroom and that he had not observed anyone leaving the bedroom. 6. The appellant’s version of events leading to him bringing the child from the house was disbelieved by the trial judge as the appellant’s version was inconsistent with that of independent witnesses. 7. The appellant denied seeing a gasoline container outside of the child’s bedroom door after the fire started. The trial judge found that this evidence was irreconcilable with the evidence given by the three witnesses who entered the house to try to find the child, each one of whom saw the gasoline cannister. 8. The police officer who arrested the appellant testified that he noted the strong smell of gasoline on the appellant at the time of his arrest. The appellant testified that he smelled like gasoline because he had been working on the lawnmower the day before. The trial judge gave extensive reasons as to why he disbelieved the appellant’s evidence on this point. [11] As a result of this analysis by the trial judge, it is clear that the inconsistencies in the appellant’s testimony with respect to the video statement would not have changed the result at trial. [12] In any event, we see no basis to conclude that counsel’s performance failed to meet the high threshold for incompetence. The video statement differed only slightly with the appellant’s testimony at trial. Counsel understood the test for voluntariness and the decision not to contest the Crown’s ability to use the video statement was reasonable in the circumstances. [13] The appellant raises additional complaints about trial counsel’s assistance. For example, the appellant raises the following points: 1. He complains that counsel did not properly use text messages to confirm the evidence of the witness Ms. Kormendi. However, her evidence was largely accepted by the trial judge who gave it little weight. 2. He claims that counsel should have called an expert to opine that the injury to his hand was inconsistent with having started the fire. However, the Crown’s expert agreed that the injury was consistent with both having started the fire and with the appellant’s testimony. 3. He claims that counsel failed to prepare him to testify at trial while evidence supports that the appellant and counsel met several times, and that counsel was reasonably diligent. 4. He claims that his mother should have been called as a witness, but counsel made a strategic decision that it would not be wise to call his mother as her evidence would be limited and her demeanor likely would not have helped the appellant’s case. [14] These complaints find no support in the record and do not satisfy the factual component of the test for ineffective assistance. [15] For these reasons, the appeal is dismissed. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “B. Zarnett J.A.” [1] The appellant indicated that he was assisted in the preparation of his factum on appeal by Mark C. Halfyard as duty counsel.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Premji, 2021 ONCA 721 DATE: 20211015 DOCKET: C66102 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Noordin Premji Appellant Faisal Mirza, for the appellant Ian Bell, for the respondent Heard: October 8, 2021 by video conference On appeal from the sentence imposed on October 10, 2018 by Justice Leonard Ricchetti of the Superior Court of Justice. REASONS FOR DECISION [1] But for the appellant’s advanced age (77 years old at the time of sentencing), the 13.5-year prison sentence imposed by the trial judge was fit, having regard to the very serious nature of the offence and the absence of any significant mitigating factors. The trial judge did not, however, consider the appellant’s advanced age as a factor in mitigation of sentence. As the trial judge said: “There are no mitigating factors.” [2] As the court noted in R. v. M. (C.A.) , [1996] 1 S.C.R. 500, at para. 74: [I]n the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender’s remaining natural life span. [3] Therefore, in exercising discretion under the Criminal Code , a sentencing judge “should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value”: M. (C.A.) , at para. 74. [4] The appellant’s advanced age should have mitigated, to some extent, the very lengthy sentence called for in this case. [5] The trial judge’s failure to consider the appellant’s advanced age amounts to an error in principle, having a material impact on the appropriate sentence. Accordingly, this court must perform its own sentencing analysis to determine a fit sentence: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 43; R. v. Friesen , 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 27. In doing so, we accept the findings of fact made by the trial judge and consider the new information available to us on appeal. [6] We have been provided with extensive fresh evidence. The appellant’s health has deteriorated significantly since the time that he was sentenced. In light of that evidence, the Crown concedes that there should be some downward adjustment of the appellant’s sentence to take into account that deterioration. However, the appellant’s medical condition cannot overwhelm the principles of sentencing so as to result in a sentence which fails entirely to reflect the seriousness of the offence or the appellant’s moral culpability. [7] The offence for which the appellant was convicted, heroin importing, remains a very serious offence committed by an individual with a previous drug-related conviction for which he received a substantial penitentiary sentence. [8] In the exceptional circumstances, as laid out in the fresh evidence, and in light of the Crown’s position, we are prepared to vary the appellant’s sentence to nine years. In doing so, we should not be taken as signalling any change in this court’s approach to sentencing in large-scale drug importing cases like this one. The appellant’s very advanced age and the combination of several significant medical problems make this a highly unusual case. [9] We reject the suggestion that the appellant should receive a conditional sentence because of health-related problems or COVID-19 – related concerns. A conditional sentence would ignore entirely the proportionality principle and denigrate the seriousness of the offence. [10] In our view, the appellant’s specific ongoing health-related problems and any COVID-19 – related problems that may arise from his incarceration are best dealt with by the Parole Board of Canada using the powers provided to it under the Corrections and Conditional Release Act , S.C. 1992, c. 20, s. 121: R. v. Kanthasamy , 2021 ONCA 32, at para. 11. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Smithen-Davis, 2021 ONCA 731 DATE: 20211015 DOCKET: M52769 (C65661) Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent (Applicant/Moving Party) and Haldane Smithen-Davis Appellant (Responding Party) Michael Dunn and Samuel Greene, for the moving party David Butt, Amicus Curiae May Sengupta-Murray on behalf of Alan D. Gold, for Haldane Smithen-Davis Heard and released orally: October 8, 2021 REASONS FOR DECISION [1] On a motion for directions, the Crown seeks an order: i. declaring that Jason Hamilton has waived his privilege over communications with his trial counsel regarding issues relevant to an application by Haldane Smithen-Davis to reopen his appeal; ii. directing Jason Hamilton to answer questions in cross-examination on issues on which he has waived his privilege; and iii. in the alternative, an order declaring Jason Hamilton’s affidavit inadmissible on the reopening application. The Background [2] The circumstances in which the motion arises fall within a narrow compass. [3] Jason Hamilton and Haldane Smithen-Davis were convicted of a home invasion in which another participant was killed. The evidence at their trial consisted principally of an Agreed Statement of Facts. Both were represented by experienced counsel. Both appealed. Both appeals were dismissed. [4] Subsequently, Mr. Smithen-Davis has applied to reopen his appeal. In support of his application, he relies on his own affidavit and that of Jason Hamilton. Reduced to their essence, these affidavits assert that Mr. Smithen-Davis did not participate in the offence of which both he and Jason Hamilton were convicted. [5] In their affidavits, both claim that, on the morning of trial, they signed off on an Agreed Statement of Fact drafted by their counsel. Each denies having reviewed the Agreed Statement of Fact in any meaningful way before they signed it. [6] In his affidavit, Jason Hamilton swears that: i. the Agreed Statement of Fact is not true; ii. he never told his trial counsel that he was present at, but did not participate in, the home invasion; and iii. he never told his trial counsel that Mr. Smithen-Davis was not present when the home invasion occurred. [7] Mr. Smithen-Davis has signed a waiver of solicitor-client privilege in connection with his communications with his trial counsel. Mr. Hamilton declined the Crown’s request that he execute an equivalent waiver. Amicus was appointed to provide him with advice about responding to the Crown’s request. He remains steadfast in his refusal. The Motion [8] On this motion for directions, the Crown says that three reasons compel the conclusion that Jason Hamilton has waived solicitor-client privilege over communications with his trial counsel on the creation and accuracy of the Agreed Statement of Fact: i.  by partially and selectively disclosing his communications with trial counsel in his affidavit; ii. by relying on his partial recitation of his communications with trial counsel to explain his course of action, including the timing and content of his disclosures; and iii. by refusing to provide a signed waiver of privilege thus insulating his evidence from effective challenge. [9] In these circumstances we are satisfied that fairness dictates that Mr. Hamilton has waived his solicitor-client privilege with respect to communications about: i.  the accuracy of the Agreed Statement of Fact; and ii. how the Agreed Statement of Fact came about. See: VIII, Wigmore on Evidence , (McNaughton Rev), at pgs. 635-636; Sopinka, Lederman, & Bryant The Law of Evidence in Canada (5th ed) , at para. 14.128. The Disposition [10] An order will issue in the terms I have set out. The cross-examination shall be conducted before a judge or commissioner appointed for that purpose. Further proceedings shall be case managed by a judge of this Court. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 722 DATE: 20211015 DOCKET: C69156 Strathy C.J.O., Pepall and Pardu JJ.A. BETWEEN Thrive Capital Management Ltd., Thrive Uplands Ltd.,  2699010 Ontario Inc. and 2699011 Ontario Inc. Plaintiffs (Respondent) and Noble 1324 Queen Inc., Michael Hyman, Giuseppe Anastasio, David Bowen, Noble Developments Corporation, Hampshire and Associates Incorporated, Lisa Susan Anastasio, Rajeree Etwaroo and Con-Strada Construction Group Inc. Defendants (Appellants) Justin Necpal, Justin H. Nasseri and Joshua Ng, for the appellants Brian N. Radnoff and Joshua Suttner, for the respondents Heard: September 15, 2021 by video conference On appeal from the judgment of Justice Markus Koehnen of the Superior Court of Justice, dated January 21, 2021. Pardu J.A.: [1] The appellants were found in contempt of court for multiple failures to disclose their assets and to account for money paid in respect of real estate investments. They do not challenge the finding of contempt but say that the motion judge erred in granting judgment against them for some $9 million dollars, following the sentencing hearing. Background [2] The respondents alleged that the appellants misappropriated $9 million dollars of investment funds intended for real estate projects in Brampton and Richmond Hill. [3] The respondents started an action and quickly obtained a Mareva injunction. The motion judge found that the respondents had a strong prima facie case that their assets had been misappropriated. The terms attached to the Mareva injunction required the appellants to produce an accounting for the funds, affidavits of assets, and contact information for the recipients of all funds and documents related to the real estate projects. [4] The matter was adjourned several times in an attempt to persuade the appellants to comply, without success. They were found in contempt on June 19, 2020 and do not challenge that finding. [5] Their purported compliance was derisory. As the motion judge noted, the appellants: blatantly ignored even the simplest of court orders, have forced the plaintiffs to court on numerous occasions to deal with their outright refusals to comply and have wasted scarce public resources in doing so. They have treated court orders as meaningless scraps of paper that could be used to tie the plaintiffs up in knots rather than as mandatory directives that form an essential part of basic social order. [6] The flagrant nature of the contempt is demonstrated by the responses to the order to disclose their assets. [7] Hyman’s affidavit of assets filed following the April 23, 2020 order describes a bank account with $17 in it, shares in a private company he valued at $500, and corporate assets of about $1916. A net worth statement he filed about two months earlier showed net assets of $15,061,000, including $5 million in cash, a Rolls-Royce and a Lamborghini with a total value of $1,564,000, and five other cars worth over $2 million. Hyman asked for an interim order permitting him to use $40,000 a month for living expenses. [8] In a similar vein, Anastasio’s affidavit of assets disclosed a bank account containing $18,517.91 and two Volkswagen Jettas worth about $15,000 each. He was also discovered to have leased a Porsche 911 and a Rolls-Royce. He asked for $20,000 a month for living expenses. [9] Their affidavits, purportedly filed to explain where the money went, do more to obfuscate than clarify [10] The motion judge’s observation, “I cannot understate the seriousness of the Defendant’s continued contempt of court,” was well founded. On June 19, 2020 he found the appellants in contempt for failure to comply with the orders to provide an accounting of funds, disclosure, and contact information for individuals or entities who received money from the accounts or the appellants. In addition, he found Hyman in contempt for failing to close the purchase of the Richmond Hill property, breaching the Mareva injunction by transferring funds, failing to provide information regarding vehicles, and breaching the prohibition that the Mercedes Benz and Land Rover were not to be driven. After making these findings, the motion judge asked the parties to make submissions on whether judgment was a possible sanction for contempt. [11] The respondents served a motion record seeking judgment against the appellants in the form of a r. 60.11 sanction for contempt: Rules of Civil Procedure , R.R.O. 1990, Reg. 194. They did not invoke r. 60.12 in their motion record. The appellants sought an urgent case conference, claiming that they had been taken by surprise by the request for judgment and that this required submissions on the merits of the action. [12] The motion judge adjourned the sentencing hearing for a month to allow the appellants to prepare arguments on whether judgment in the action could be a sanction for contempt. He directed that the arguments available were that it was possible, that it was not possible, or that it was not possible without adjudicating the merits. He directed: “The point of the sanctions hearing is not, however, to argue the merits. The defendants are able to argue on the sanctions hearing that judgment on the merits is not appropriate without an adjudication on the merits. That does not require them to actually adjudicate the merits.” [13] The respondents provided the appellants with the case authority upon which they relied to support their claim for judgment, Falcon Lumber Limited. v. 24803375 Ontario Inc. , 2019 ONSC 4280, aff’d 2020 ONCA 310, a case dealing with striking pleadings for failure to make documentary disclosure. [14] The respondents sought judgment against the appellants and 6 months’ incarceration. [15] The motion judge concluded that the appellants’ behaviour was serious enough to warrant incarceration, but that judgment was more appropriate. He found that it would be inappropriate to allow the appellants to defend the proceeding, while at the same time ignoring orders of the court. He found that a fine would not be adequate to persuade the appellants to obey the court orders and would amount to a licence to steal. The appellants’ efforts to comply with the orders were inadequate and their evidence was not worthy of belief. They continued to be in contempt of the orders at the sentencing hearing. [16] The motion judge was satisfied that the appellants’ conduct warranted incarceration but concluded that incarceration was not the preferable penalty. He concluded that it was most appropriate to tailor the remedy to the default by granting the respondents judgment. He indicated that he would ordinarily expect a party who was accused of a $9 million fraud to explain why they were legitimately entitled to the money. In the absence of any explanation some nine months after the action had been started, he indicated that he saw no injustice in granting judgment against the appellants. Relying on rr. 60.11 and 60.12 as the source of his authority, he concluded “this is an appropriate case in which to use that power as a sanction for contempt. Here the defendants have not yet defended. The appropriate corollary is to deny them the ability to defend and to enter judgment against them.” He concluded that if he had not granted judgment, he would have sentenced the appellants to six months’ incarceration. Analysis [17] Here the motion judge was critical of the appellants’ failure to explain why they were entitled to the money and relied on that failure in deciding that judgment was the appropriate remedy. However, he had instructed that the appellants were not to address the merits of the action at the sentencing hearing. This requires that the judgment be set aside and the matter returned to the Superior Court for a new sentencing hearing. In light of the appellants’ behaviour, it is easy to see why he was highly skeptical that there was any defence to the action. If the merits were a factor, however, the appellants should have been able to address that issue. [18] I turn now to a consideration of the issues raised by this appeal: 1. What factors are relevant to determining a sanction for contempt? 2. Can an opposing party move to strike a defence or bar a defendant from participating in the proceeding as a remedy for contempt? 3. If such a motion is brought, are the merits of the proceeding a factor in deciding whether to grant the remedy? 4. Is judgment directly available as a sanction for contempt? 5. What are the steps required to attempt to obtain judgment against a party in contempt? [19] The merits of an action may not be particularly relevant in determining what punishment is appropriate for contempt of court but are relevant to the issue of whether judgment should be granted. The purpose of a penalty for civil contempt is two-fold; not only do such penalties enforce the rights of a private party, but they also maintain respect for the authority of the courts. The factors relevant to the determination of the appropriate sentence for civil contempt include: 1. The proportionality of the sentence to the wrongdoing; 2. The presence of mitigating factors; 3. The presence of aggravating factors; 4. Deterrence and denunciation; 5. The similarity of sentences in like circumstances; and 6. The reasonableness of a fine or incarceration. [20] None of these factors focuses on the merits of the proceeding: Boily v. Carleton Condominium , 2014 ONCA 574, 121 O.R. (3d) 670, at paras. 79, 90. A fine imposed for contempt is payable to the Crown and not to the opposing party: SNC-Lavalin Profac Inc. v. Sankar , 2009 ONCA 97, 94 O.R. (3d) 236, at para. 14. [21] The distinctions between the two distinct roles of a court imposing a sanction for contempt on the one hand and granting judgment on the other can be blurred if the analysis is not separated. [22] There can be no doubt, however, that a statement of defence can be struck for contempt of court. Courts have denied contemnors the opportunity to deal with a claim on the merits. In iTrade Finance Inc. v. Webworx Inc. , (2005) 255 D.L.R. (4th) 748 (Ont. S.C.J.), the court found that the defendant’s failure to comply with court orders was such that the remedy of striking its pleadings was appropriate. In Paul Magder Furs Ltd. v. Ontario (Attorney General) , 6 O.R. (3d) 188 (Ont. C.A.), at para. 14, the court observed that “it is an abuse of process to assert a right to be heard by the court and at the same time refuse to undertake to obey the order of the court so long as it remains in force.” Section 140(5) of the Courts of Justice Act , R.S.O. 1990, c. C.43 gives the court express power to stay or dismiss a proceeding as an abuse of process. In Dickie v. Dickie (2006), 78 O.R.(3d) 1, this court refused to hear a litigant who was abusing the processes of the court. By analogy, a court could bar a defendant in contempt from filing a statement of defence. [23] Rule 60.12 provides explicitly that where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by the rules, stay the party’s proceeding, dismiss the proceeding, strike out the party’s defence, or make such other order as is just. [24] Both rr. 60.11 and 60.12 deal with failures to obey court orders. Rule 60.11 focuses on the context of contempt proceedings. Either rule would allow a court to strike a statement of defence or bar a litigant from filing a defence. [25] In determining whether to strike a pleading, even where judgment is not granted concurrently, there may be some analysis of the merits of the claims. In Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors) , 2020 ONCA 310, Brown J.A. discussed the factors to be considered when determining whether to strike a party’s claim for failure to produce documents under r. 30.08(2). This rule expressly permits a court to strike out a statement of defence from a party who fails to serve an affidavit of documents, produce documents for inspection, or comply with an order of the court under rr. 30.02 to 30.11, which deal with the various aspects of documentary discovery. [26] Brown J.A. observed that the exercise of discretion to strike a pleading is not limited to a last resort, following multiple failures, but that a court would usually want to ensure that a party had a reasonable opportunity to cure the default before striking a pleading: Falcon Lumber Limited , at para. 50. Relevant factors would include whether the failure was deliberate or inadvertent, whether the failure was clear, whether there was a reasonable explanation for the default and a promise to cure it, whether the substance of the default was important, whether the default continued, and the impact upon the opposite party’s attempts to get justice: Falcon Lumber Limited , at para. 51. He went on to note that the court could also consider the merits of the defaulting party’s claim or defence, but that this might only play a limited role, as one would expect a party with a strong claim or defence to comply promptly with its disclosure obligations: Falcon Lumber Limited , at para. 52. Finally, he noted that a court must consider whether an order striking a pleading would constitute a proportional remedy to ensure that civil justice was proportionate, timely, and affordable: Falcon Lumber Limited , at para. 53. Has the defaulting party’s conduct increased the opposite party’s costs of litigating the action? Has the default delayed adjudication of the matter on the merits?: Falcon Lumber Limited , at para. 55. [27] This analysis applies with equal force to motions under r. 60.12 to strike a statement of defence for failure to comply with an interlocutory order, as well as to the sanction of striking pleadings when sought for contempt. Where the remedy for contempt sought is an order barring a party from defending or an order striking a pleading, some assessment of the merits may be necessary to determine whether such an order is a proportionate response to the contempt alleged. Where, for example, the contempt is less serious, is likely to be cured, and it appears that a party has a defence of substance, it would be disproportionate to bar the defendant from participating in the action. [28] Where a statement of defence is struck, there may well follow an unopposed motion for default judgment. [29] While it may be tempting to collapse the issues of contempt and striking a defence on the one hand and a motion for judgment on the other hand into one proceeding, this may be false economy. [30] It can turn motions to strike pleadings for failure to comply with orders, whether as a sanction for contempt or pursuant to r. 60.12, into something resembling summary judgment motions, thereby shifting the focus from the failure to comply to the merits of the action. When granting judgment on the claim, the merits must be addressed. [31] While a judgment on the merits brings an action to an end, a court may subject a party in contempt to multiple sanctions hearings in order to compel compliance. [32] The Ontario Rules of Civil Procedure do not explicitly provide that judgment may be entered against a party who has failed to comply with a court order. Rule 60.12 does allow a court to make any order that is just for failure to comply with an order. In contrast, r. 10.53(1)(d)(iii) of the Alberta Rules of Court , AR 124/2010, says that “judgment may be entered” as a penalty for contempt. Final judgment in the action is not directly available as a punishment for contempt of court in Ontario. [33] This is not to say that in a given case, judgment may not be an appropriate remedy against a party who is in contempt or who has failed to comply with an interim order. There is no impediment in the Rules barring a party from moving for various and alternative relief. For example, a litigant could move under r. 60.11 for an order imprisoning a party for contempt, for an order striking their pleadings under either rr. 60.11 or 60.12, and for default judgment in the event the pleadings are struck. If the latter is included, the moving party should expect that there will be a more searching inquiry about the merits and that the respondent will be given an opportunity to respond to the merits. [34] Here, there is no doubt that a strong response was required to sanction the appellants’ contempt, but they should not have been barred from making any submission as to the merits of any defence when it was clear that the respondents were seeking final judgment on their claims. Even if the moving party had not sought judgment on the motion but sought only to bar the appellants from defending the action because of their contempt and disobedience of court orders, some skeletal review of any defence raised may have been required to assess whether they should be barred from defending the action. [35] Here the plaintiffs sought judgment as a sanction for contempt, although judgment is not a remedy directly available as a punishment for contempt. As the appellants were entirely aware that judgment was sought on the motion, the procedural mischaracterization in the motion record might have been forgiven pursuant to r. 1.04 of the Rules of Civil Procedure , had the appellants not been barred from addressing the merits at all in their response to the motion. [36] I would set aside the judgment and remit the matter to another judge of the Superior Court to determine the appropriate sanction to be imposed upon the appellants for their contempt of the orders of the motion judge. Ordinarily one would expect the same judge to make the finding of contempt and impose the sanction, however here, given that the motion judge  has expressed his views on the appropriate sanction, the better course would be to have a different judge decide what should follow the finding of contempt, depending on the relief sought and pleaded. Reasonable apprehension of bias [37] I would not conclude that an informed person, looking at the matter realistically and practically, and having thought the matter through, would think it more likely than not that the judge would decide the case unfairly. It is not surprising that the motion judge was concerned about the appellants’ wilful and outrageous conduct, which deserved a significant response by the court. [38] I would direct the parties to make brief written submissions in relation to the costs of the appeal and the costs awarded below, due by October 29, 2021. Released: October 15, 2021 “GRS” “G. Pardu J.A.” “I agree G.R. Strathy C.J.O.” “I agree S.E. Pepall J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Battiston v. Microsoft Canada Inc., 2021 ONCA 727 DATE: 20211018 DOCKET: C68550 Benotto, Brown and Harvison Young JJ.A. BETWEEN Fransic Battiston Plaintiff (Respondent) and Microsoft Canada Inc. Defendant (Appellant) Deborah Glendinning, Nancy Roberts and Mark Sheeley, for the appellant Andrew Monkhouse and Samantha Lucifora, for the respondent Heard: September 9, 2020 by video conference On appeal from the judgment of Justice Mario D. Faieta of the Superior Court of Justice, dated July 15, 2020. REASONS FOR DECISION [1] For almost 23 years, the respondent was employed by Microsoft Canada Inc. He was terminated without cause and brought an action for wrongful dismissal. The trial judge found that the respondent was entitled to 24 months’ pay in lieu of reasonable notice less 1 percent contingency for re-employment during the balance of the notice period, plus a 0.7 percent annual merit increase, an annual cash bonus of $12,100 and stock awards. [2] Microsoft Canada Inc. appeals, but only with respect to the trial judge’s conclusion that the respondent is entitled to unvested stock awards after his termination. The appellant relies on the Stock Award Agreement (the “Agreement”) which provided that any unvested stock awards do not vest to an employee if employment ends for any reason. The trial judge found that the termination provisions in the Agreement were not drawn to the respondent’s attention and could not be enforced because they were harsh and oppressive. [3] In oral submissions, t he appellant raised several issues in support of its position: 1) the trial judge erred in finding the termination provisions unenforceable as the decision was rendered prior to the Supreme Court decision Matthews v. Ocean Nutrition Canada Ltd. , 2020 SCC 26, 449 D.L.R. (4th) 583. (In that case, the Supreme Court revised the test for whether bonus payments are included as part of damages in lieu of reasonable notice); 2) the Award Agreement was a separate agreement that did not form part of the compensation package because it was with the parent company, not the appellant; 3) the terms violate s. 60(a) or (b) of the Employment Standards Act , which precludes changes to wages during the notice period; and 4) the terms of the Agreement were not brought to the attention of the respondent. [4] The appellant raised several more issues in written submissions: 1) the trial judge erred in law in imposing a common law right to damages in respect of the unvested stock awards (the first step of Matthews ); 2) the trial judge erroneously ruled against the appellant after concluding that the award agreements were unambiguous (the second step of Matthews ); 3) the trial judge erred by modifying the legal test by adding an unfounded “harsh and oppressive” standard; and 4) that policy considerations militate in support of allowing this appeal, including regarding differential treatment of employees post-termination. [5] We need only address one issue which is dispositive of the appeal: the trial judge’s conclusion that, because the respondent did not receive notice, the Agreement is unenforceable. [6] Each year the respondent received an email as follows: Congratulations on your recent stock award! To accept this stock award, please go to My Rewards and complete the online acceptance process. A record will be saved indicating that you have read, understood and accepted the stock award agreement and the accompanying Plan documents. Please note that failure to read and accept the stock award and the Plan documents may prevent you from receiving shares from this stock award in the future. [7] Each year, for 16 years, the respondent confirmed that he received these emails. His practice was to click a box to confirm that he had read, understood and accepted the stock award agreement. In fact, he said that he did not read the Agreement and thus did not know about the termination provisions. He thought he would get the unvested stock if he was terminated. [8] The trial judge found that the Agreement unambiguously excludes the respondent’s right to vest his stock awards after he has been terminated without cause. However, he also found that the terms are unenforceable because they are harsh and oppressive and because the respondent was not given notice. The trial judge’s reasons are somewhat unclear on this issue. Although he states at paragraph 65 that “there is no dispute” that notice was not given, he later made a finding of fact which demonstrates that the appellant did not concede the issue. He said the following at paragraph 70: I find that the termination provisions found in the Stock Award Agreements were harsh and oppressive as they precluded [the respondent’s] right to have unvested stock awards vest if he had been terminated without cause. I also accept [the respondent’s] evidence that he was unaware of these termination provisions and that these provisions were not brought to his attention by Microsoft . Microsoft’s email communication that accompanied the notice of the stock award each year does not amount to reasonable measures to draw the termination provisions to [the respondent’s] attention. [Emphasis added.] [9] This finding cannot stand because the trial judge’s conclusion that the notice provisions were not brought to the respondent’s attention fails to address the following facts: 1) For 16 years the respondent expressly agreed to the terms of the agreement. 2) The respondent made a conscious decision not to read the agreement despite indicating that he did read it by clicking the box confirming such. 3) By misrepresenting his assent to the appellant, he put himself in a better position than an employee who did not misrepresent, thereby taking advantage of his own wrong: see Berlingieri v. DeSantis (1980), 31 O.R. (2d) 1 (C.A.) at para. 18. [10] The trial judge erred by finding the respondent received no notice. [11] The appeal is allowed with costs in the amount of $20,000 inclusive of disbursements and HST. We do not interfere with the award of costs in the court below. “M.L. Benotto J.A.” “David Brown J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Cowan, 2021 ONCA 729 DATE: 20211018 DOCKET: C67628 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Peter Cowan Appellant Chris Rudnicki, for the appellant Victoria Rivers, for the respondent Heard: October 8, 2021 by video conference On appeal from the conviction on a charge of possession of cocaine for the purpose of trafficking entered by Justice R. Khawly of the Ontario Court of Justice on August 16, 2019; and on appeal from the sentence of nine months imposed on November 8, 2019. REASONS FOR DECISION [1] The appellant was convicted of possession of cocaine for the purposes of trafficking and received a sentence of 9 months. He appeals his conviction. If the conviction appeal fails, the appellant seeks leave to appeal his sentence and, if leave is granted, appeals his sentence. He asks the court to impose a conditional sentence. The Conviction Appeal [2] This was a simple single-issue trial. The appellant admitted he was in possession of a significant amount of cocaine when he was arrested. He also admitted that it had been packaged for resale. He testified, however, that all of the cocaine was for his personal use. Counsel argued the appellant should be convicted of the included offence of possession of cocaine. [3] The appellant was arrested and found in possession, both on his person and in his vehicle, of about 64 grams of cocaine. Most of the cocaine had been separated and packaged into about 65 baggies, each containing a street-level quantity of that drug. In short, the quantity and the packaging of the cocaine found in the possession of the appellant strongly suggested he was in possession of the cocaine for the purposes of resale. [4] Three days before his arrest, the appellant was under video surveillance by his employers, who suspected him of theft. The video surveillance captured the appellant meeting with several individuals in his vehicle at various locations. Generally speaking, each individual was in the appellant’s vehicle for a minute or two before leaving. [5] In his evidence, the appellant acknowledged he used crack cocaine. He admitted he had possession of the cocaine seized from his person and vehicle. The appellant testified he purchased the cocaine from a dealer with whom he had some prior connection. The cocaine was already packaged in individual baggies ready for resale. The dealer explained to the appellant he had repossessed the drugs from one of his sellers when the seller had defaulted on payment. The dealer was driving north from Toronto to Muskoka and did not want to take the drugs with him in his vehicle. The dealer offered all of the cocaine to the appellant at a substantially reduced price. [6] The appellant testified he purchased the drugs and took possession of them in their individual baggies. The drugs were, however, exclusively for his personal use. [7] The appellant explained that the several meetings captured on the video surveillance related to his shoe resale business. Some involved the sale of shoes and others involved collecting money owed on the previous sale of shoes. [8] The video surveillance appeared to show that two of the several people who met with the appellant in his vehicle may have been purchasing shoes. The appellant was a shoe hoarder and had literally hundreds of pairs of shoes in his apartment. The Crown did not allege any illegality relating to the appellant’s acquisition or resale of the shoes. [9] The grounds of appeal on conviction arise out of the trial judge’s application of the burden of proof. [10] When, as in this case, the appellant testifies and denies the allegation, the trial judge should approach the burden of proof by asking the three questions laid down in R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (SCC): · Does the trial judge believe the accused’s explanation? · If the trial judge does not believe the accused’s explanation, does that explanation leave the trial judge with a reasonable doubt? · If the evidence of the accused is not believed and does not leave the trial judge with a reasonable doubt, has the Crown proved guilt beyond a reasonable doubt based on the evidence the trial judge does accept? [11] Counsel agree that, on the evidence, the outcome of the case turned on the answer to the first two questions posed in W. (D.) . Counsel agree, and so do we, that if the evidence of the accused was rejected and did not leave the trial judge with a reasonable doubt, the remainder of the evidence established beyond any doubt that the appellant had possession of the cocaine for the purposes of trafficking. [12] The trial judge indicated he did not believe the appellant’s evidence. He then turned to the second question posed in W. (D.) and asked whether the appellant’s evidence “could reasonably be true”. [13] The phrase “could reasonably be true” should be avoided. It can imply that the accused carries the onus of demonstrating the existence of a reasonable doubt: see R. v. Rattray , 2007 ONCA 164, at para. 13. The ultimate question on appellate review is not, however, whether the trial judge used an inappropriate phrase, but whether the trial judge correctly applied the burden of proof. [14] With respect to the first question – did the trial judge believe the accused – counsel for the accused at trial candidly and correctly acknowledged that the appellant’s denial that he had possession of the cocaine for the purposes of resale strained credulity in all of the circumstances. She urged the trial judge, however, to take into account the appellant’s apparent mental disorder when assessing his evidence. [15] As has repeatedly been stated, this court must defer to credibility assessments made at trial. We see no error in the manner in which the trial judge assessed the credibility of the appellant’s evidence. The trial judge tested that evidence against the trial judge’s notions of common sense, human experience and logic. Triers of fact are required to do exactly that: R. v. Calnen , 2019 SCC 6, at para. 112. [16] We do not agree that, in assessing the appellant’s evidence, the trial judge invoked negative stereotypes based on the appellant’s economic circumstances and lifestyle. Nor did the trial judge introduce “new considerations not arising from the evidence” into his fact-finding. The trial judge focused on the evidence. In his view, the appellant’s explanation as to how he came to be in possession of a significant amount of cocaine, packaged for resale, but intending to use all of the cocaine himself, was incredible. [17] With respect to the second question posed in W. (D.) – does the accused’s evidence leave the trial judge with a reasonable doubt – we are satisfied, despite the inappropriate language used by the trial judge, that, on this record, the trial judge’s conclusion the appellant’s evidence could not reasonably be true was tantamount to a finding that he was not left with a reasonable doubt based on that evidence. [18] The conviction appeal is dismissed. The Sentence Appeal [19] The appellant is not a Canadian citizen, although he has been in Canada for 26 years. He is subject to deportation on account of this conviction. The parties agree the trial judge misapprehended the potential likelihood of deportation if the appellant received a sentence of 6 months or more. They also agree that this misapprehension of a significant collateral consequence warrants a de novo assessment of the fitness of the 9-month sentence imposed by the trial judge. [20] At the time of trial, the statutory minimum in place prohibited the granting of a conditional sentence. This court struck down the mandatory minimum in R. v. Sharma , 2020 ONCA 478. The appellant submits that a conditional sentence can and should be imposed. [21] Crown counsel acknowledges that a conditional sentence is now available, but submits that the sentence was nonetheless fit. In the alternative, Crown counsel submits that if the sentence is varied, it should be varied to something slightly less than 6 months, to be followed by a period of probation. [22] The appellant is, for all intents and purposes, a first offender. The circumstances of the offence indicate the appellant was engaged in low-level trafficking. His personal circumstances strongly suggest the appellant’s mental disabilities played a central role in the appellant ending up selling drugs from his vehicle. In our view, a conditional sentence with appropriate terms can serve the ultimate purpose of sentencing and properly reflect a consideration of the applicable sentencing principles. [23] At the request of the court, counsel drafted suggested terms should the court decide to impose a conditional sentence. We are in substantial agreement with those terms. [24] The sentence is varied to a conditional sentence of 12 months on the following terms. The appellant will: a. Keep the peace and be of good behaviour; b. Appear before the court as directed; c. Report to a supervisor within 1 week after this court’s decision is released and thereafter as directed by the supervisor; d. Remain in Ontario, unless written permission to leave Ontario is first obtained from the court or the supervisor; e. Notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change in employment or occupation; f. Reside at an address approved by the supervisor; g. For the first 7 months of this order, remain in his residence at all times except, (i) between the hours of 12:00 p.m. to 4:00 p.m. on Sundays in order to acquire the necessities of life; (ii) for any medical emergencies involving the appellant or any member of his immediate family; (iii) while going directly to and from court appearances, religious services and legal, medical or dental appointments; and (iv) while going directly to, from and while at a place of work approved by the supervisor. h. For the last 5 months of this order, remain in his residence between the hours of 10:00 p.m. and 5:00 a.m., except for medical emergencies involving the appellant or a member of his immediate family; i. Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the supervisor and complete them to the supervisor’s satisfaction; j. Sign release forms as required to enable the supervisor to monitor the appellant’s attendance and completion of any assessments, counselling or rehabilitative programs; and k. Do not possess any weapons, as defined by the Criminal Code . Conclusion [25] The conviction appeal is dismissed. Leave to appeal sentence is granted, the appeal is allowed, and the sentence is varied in accordance with these reasons. “Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.M., 2021 ONCA 735 DATE: 20211018 DOCKET: M52652 (C68627) Watt, Benotto and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and J.M. Applicant Jessica Zita, for the applicant David Friesen, for the respondent Heard: September 23, 2021 by videoconference Watt J.A.: [1] A jury found the applicant guilty of sexual assault. The trial judge imposed a sentence of imprisonment for eighteen months. A judge of this court ordered the applicant released pending the determination of his appeal against conviction. [2] The applicant sought funding for his appeal from Legal Aid Ontario (LAO). He relied on an opinion letter from counsel that set out several proposed grounds of appeal. Each ground alleged an error or omission in the trial judge’s charge to the jury. [3] On November 20, 2020, LAO declined the applicant’s funding request. The applicant appealed. On February 25, 2021 the appeal was dismissed. LAO would not be funding the applicant’s appeal. [4] On April 8, 2021, the applicant applied to the chambers judge for an order under s. 684(1) of the Criminal Code that counsel be assigned to act on his behalf on his appeal from conviction. The chambers judge dismissed the application. [5] The applicant now seeks an order quashing the order of the chambers judge and directing that counsel be appointed under s.684(1) to act on the applicant’s behalf with her fees and disbursements being paid by the Attorney General who is the respondent on appeal in accordance with s. 684(2) of the Criminal Code [6] At the conclusion of argument, we dismissed the application. We said that we would explain why we came to that conclusion. We do so now. The Essential Background [7] A brief reference to the proceedings before the chambers judge will provide the essential background. The Chambers Motion [8] Before the chambers judge, the applicant contended that an order under s. 684 of the Criminal Code was desirable in the interests of justice. The applicant lacked sufficient means to retain counsel. His appeal was meritorious. And, left to his own devices, he lacked the ability to argue the case on his own. [9] The respondent opposed the motion, principally on the basis that the appeal was bankrupt of merit. The respondent acknowledged that the applicant lacked the means necessary to retain counsel and appears to have accepted that the applicant lacked the ability to advance argument on his own behalf. The Decision of the Chambers Judge [10] The chambers judge accepted that the statutory standard in s. 684(1) required her to determine whether it appeared desirable in the interests of justice that the applicant should have legal assistance to argue his appeal and that he lacked sufficient means to do so. [11] It was uncontroversial, the chambers judge explained, that the applicant lacked the financial means to retain counsel. She was also not prepared to say, as counsel for the respondent had argued, that the appeal lacked merit. However, funding orders are exceptional. The circumstances did not satisfy the “interests of justice” standard. The issues raised were straightforward. They could be advanced by duty counsel in an inmate appeal with the assistance of the opinion letter counsel wrote to LAO seeking funding. The issues could also be determined by a panel of the court assigned to inmate appeals. This Application [12] In this court the applicant seeks an order quashing the order of the chambers judge. In its place, he asks that we appoint Ms. Zita as his counsel and direct that her fees and disbursements be paid by the Attorney General who is the respondent in the appeal. The Arguments of Counsel [13] The applicant invokes several sources as a basis upon which we can review the order of the chambers judge. Those sources include: i. the Practice Direction concerning Criminal Appeals; ii. section 683(3) of the Criminal Code ; iii. the Practice Direction concerning Civil Appeals; and iv. section 7(5) of the Courts of Justice Act , R.S O. 1990, c.C 43. ( CJA ). [14] To obtain an order under s. 684, the applicant accepts, he must show that it is in “the interests of justice” that counsel be appointed to act on his behalf. The order is discretionary. Whether it should issue depends upon and requires consideration of all the circumstances. These include the merits of the appeal, the appellant’s ability to present his case without the assistance of counsel, and the ability of the court to determine the issues raised without the assistance of counsel. [15] In this case, the applicant continues, the appeal has substantial merit. It alleges specific errors and omissions in the charge to the jury, thus surpasses the standard that it be arguable. The proceedings under review were a 10-day jury trial with pre-trial and in-trial motions including a s 276. application. There was a pre-charge conference about what should be included in the charge. The jury asked questions. These issues are well beyond the ability of the appellant to present to the Court. Further, the Duty Counsel Program available in inmate appeals is not an adequate substitute for fully-funded counsel. The availability of assistance from that program should not undermine meritorious s. 684 applications. [16] The respondent challenges the review mechanisms asserted by the applicant. Rights of appeal are entirely statutory. The Criminal Code provides no right of appeal from refusal of an order under s. 684. And the Criminal Code is where any appellate rights must be found. Section 7(5) of the C JA , alone or together with s. 683(3) of the Criminal Code, is of no avail. The CJA does not apply to criminal proceedings. And it is well settled that it, in tandem with s. 683(3) of the Criminal Code , affords no basis of appeal or review. Likewise, Practice Directions which implement but cannot create rights of appeal or review. [17] Turning to the merits, the respondent points out that the remedy afforded by s. 684 is discretionary. Decisions granting or refusing the appointment of funded counsel are accorded significant deference on appeal. In this case, the applicant has not demonstrated any basis upon which we should interfere. The circumstances have not changed. The chambers judge did not err in law or depart from governing principles. She did not dismiss the application on the basis that the Duty Counsel Program would be an adequate or sufficient substitute for funded counsel. The chambers judge simply observed that the straightforward issues advanced by the applicant could be properly advanced by Duty Counsel aided by the opinion letter prepared by counsel. And this court, assisted by Duty Counsel, and counsel for the respondent, is well-positioned to decide the appeal without funded counsel. Discussion [18] Like counsel, we approach our task in two steps. The first examines the existence and scope of our authority, if any, to review the decision of the chambers judge refusing to make an order for funded counsel. Second, we consider the merits of the claim. Issue #1: The Availability of Review [19] The applicant invokes several different sources as a basis upon which we are entitled to review the decision of the chambers judge. Rights of Appeal under the Criminal Code [20] The right of appeal is an exceptional right. Appellate rights, procedure on appeal, and the jurisdiction of appellate courts are wholly creatures of statute. An appellate court such as this has no inherent jurisdiction to entertain an appeal in criminal cases : Welch v. The King [1950], S.C.R 412, at page 428; R. v. Morgentaler, Smoling and Scott (1984), 16 CCC (3d) 1 (Ont. CA), at pages 5-6; R. v. Smithen-Davis , 2020 ONCA 759, at paras. 27-28. Where no right of appeal is given, none exists. [21] Section 684 contains no provision that authorizes an appeal by any party to the proceedings under the section. Nor is an appeal authorized by any other provision in Part XXI or elsewhere in the Criminal Code . See by comparison, s. 490(17) of the Criminal Code . Sections 683(3) of the Criminal Code and 7(5) of the CJA [22] Section 683(3) of the Criminal Code permits a court of appeal to exercise, in relation to proceedings in the court, any powers beyond those in s. 683(1) that the court can exercise in civil matters. Section 7(5) of the CJA permits a panel of the court, on motion, to set aside or vary a decision made by a single judge of the court on a motion. [23] Section 683(3) cannot reasonably be read as extending the appellate jurisdiction of a court of appeal beyond the jurisdiction the Criminal Code expressly grants it. [24] Section 683(1) defines the authority of a court of appeal to make procedural orders to facilitate the hearing and adjudication of an appeal, provided the court concludes that it is in “the interests of justice” to make these orders. Section 683(3) expands the express authority granted by s. 683(1) to include any power the court may exercise in civil matters: R. v. Perkins , 2017 ONCA 152, 347 CCC (3d) 58, at paras. 21-22; R. v. Codina , 2009 ONCA 907, 266 CCC (3d) 1, at para. 8. [25] On its own, s. 7(5) CJA cannot ground a right of appeal in criminal proceedings. The province lacks the constitutional competence to create rights of appeal in criminal cases: Perkins , at para. 63. [26] Nor does the combination of sections 683(3) of the Criminal Code and 7(5) of the CJA fare any better as a source of appellate jurisdiction. To decide otherwise would be to encroach on Parliament’s exclusive jurisdiction to determine rights of appeal in criminal proceedings: Perkins, at para. 23. The Criminal Appeal Rules and Practice Directions [27] Section 482(1) of the Criminal Code permits a court of appeal to make rules of court not inconsistent with the Criminal Code or any other Act of Parliament. These rules apply to appeals within the jurisdiction of the court instituted in relation to criminal proceedings. Rules may be made under s. 482(3)(d) to carry out the Code’s provisions relating to appeals. However, this rule-making authority cannot be invoked to extend the substantive jurisdiction of the court. The authority to make rules, equally to issue practice directions, is limited to matters already within the jurisdiction of the court. Rules implement jurisdiction otherwise granted. They do not create substantive rights that do not otherwise exist: Smithen-Davis , at paras. 27-28; McEwen (Re) , 2020 ONCA 511, at paras. 53-55. See also, R. v. O’Malley (1997), 119 CCC (3d) 360 (BCCA), at para. 18. [28] In the result, neither the Criminal Appeal Rules nor the Practice Directions of the court can ground a right of appeal or of review for which the Criminal Code does not provide. Section 684 and Concurrent Jurisdiction [29] A judge and a panel of judges of this court have equivalent jurisdiction to determine whether an order for state-funded counsel is desirable in the interests of justice under s. 684(1) of the Criminal Code . In other words, the jurisdiction of a single judge and a panel of judges is concurrent. This is not unique to s. 684. See, for example, ss. 675(1)(a)(ii); (b)(1.1); 678(2); and 839(1). [30] The mere fact of concurrent jurisdiction in a single judge and a panel of the court does not mean that a panel of judges has authority to “review” the order of a single judge or sit on appeal of that order. To decide otherwise would be at odds with the very essence of concurrent jurisdiction. Separate, but equal. Indeed, the Criminal Code confirms as much when it provides, for example, in s. 675(4), for a right to a panel hearing when leave to appeal is refused by a single judge. [31] Yet the absence of a review authority does not mean that a judge and a panel of the court cannot both exercise jurisdiction to consider a request for the appointment of state-funded counsel in the same case. As this court has previously decided, in an appropriate case, a panel of the court may exercise its s. 684 jurisdiction even though a judge of the court has refused to do so: R. v. Bernardo (1997), 121 CCC (3d) 123 (Ont. CA), at para. 12. [32] The Bernardo court did not define the scope of what it considered “appropriate” to warrant panel consideration of an application for state-funded counsel under s. 684 after rejection of an application for the same relief by a single judge. It was not necessary for the court to formulate a test or standard or otherwise to define the outer reaches of what might engage the concurrent jurisdiction of a panel after consideration by a single judge. Suffice it to say, that what prompted the Bernardo court to exercise its concurrent jurisdiction was a change of circumstances. What changed, as the single judge contemplated in his refusal of the application, was that substantial parts of the trial record not available to the single judge became available to the panel. This enabled the panel to make a more mature assessment of the complexity of the appeal and the appellant’s ability to effectively argue the appeal without the assistance of counsel: Bernardo, at para. 12. [33] Absent from the decision in Bernardo is any suggestion that the panel was exercising an appellate jurisdiction in relation to the decision of the single judge. The authorities invoked by the Bernardo court, as well as its analysis reveal a de novo assessment based on changed circumstances: Bernardo , at para 12; R. v. Foster (1954), 110 CCC 214 (Ont. CA), at page 215; R. v. Walker (1978), 46 CCC (2d) 124 (Que. CA), at page 25. [34] From this review of the authorities, we are satisfied that there is no right of appeal or other review from the chambers judge refusing to direct the appointment of state-funded counsel. Our concurrent jurisdiction permits us to consider the application afresh, provided we are satisfied that circumstances have changed sufficiently from those before the single judge to warrant a reassessment. Issue #2: The Merits of the Claim [35] In large measure, the scope of our jurisdiction on this application predestines its demise. We exercise no appellate or cognate review function. Rather, we canvass whether there has been a change in circumstances since the decision of the application judge. Further, if there has been such a change, we evaluate its nature and extent to determine whether the interests of justice warrant a different conclusion than reached by the chambers judge. [36] In this case, the applicant asserts no change in circumstances between those prevalent on the determination of the chambers judge and those current on this application. This is not a case in which additional relevant material has become available after the initial decision. It follows, that the application cannot succeed on the basis of changed circumstances. [37] Even if we were prepared to conclude that we could exercise our concurrent jurisdiction on the basis of a legal error in the reasoning or conclusion of the chambers judge, we would not do so here. [38] The remedy afforded by s. 684(1) -  the appointment of state-funded counsel - is discretionary. The applicable standard - “the interests of justice” - involves the exercise of a case-specific discretion which is subject to substantial deference on appeal absent any error of law or principle, misapprehension of material evidence, or a decision that is plainly unreasonable. [39] In this case, the error alleged is that the chambers judge essentially concluded that the Duty Counsel Program for inmate appeals was an adequate proxy or surrogate for state-funded counsel. We are not persuaded that the chambers judge declined the application on this basis. As we understand her reasons, the chambers judge concluded that the grounds of appeal to be advanced, all of which related to the charge to the jury, were straight forward and could be properly advanced on an inmate appeal. This was so despite the applicant’s evidence about his learning disability and his challenges with reading comprehension and communication. Disposition [40] It is for these reasons that we dismissed the application for an order for state-funded counsel under s. 684. Released: October 18, 2021 “D.W.” “David Watt J.A.” “I agree. M.L. Benotto J.A.” “I agree. Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Campbell, 2021 ONCA 739 DATE: 20211019 DOCKET: M52783 (C68693) Brown J.A. (Motion Judge) BETWEEN Her Majesty the Queen Responding Party and Andrew Campbell Applicant Aidan Seymour-Butler, for the applicant Stephanie A. Lewis, for the responding party Heard: October 12, 2021 by video conference ENDORSEMENT I.        OVERVIEW [1] The applicant, Andrew Campbell, applies for bail pending appeal. [2] Almost three years ago, on November 2, 2018, Mr. Campbell was convicted by a jury of kidnapping, pointing a firearm, and assault causing bodily harm. [3] Briefly, the facts as set out in the reasons for sentence are as follows. A confrontation occurred between Mr. Campbell and the victim, Jamal Karshe, in the early morning hours one Saturday in 2015 at the apartment of Heather Lafleur. In the result, Mr. Campbell left the apartment and then returned with a handgun, which he pointed at Mr. Karshe. Mr. Campbell directed Ms. Lafleur to tie up the victim and then pour heated oil on the victim’s thigh and around his ears. Mr. Campbell and Ms. Lafleur then put the victim in a truck, which Mr. Campbell drove to a wooded area. He put Mr. Karshe on the ground and choked him to the point of unconsciousness. [4] On May 22, 2019, the sentencing judge imposed a global sentence of seven years’ imprisonment which, after appropriate credits, resulted in a sentence to be served of 73 months, or six years and one month. The time remaining on his sentence is now three years, eight months, and two weeks. [5] Mr. Campbell filed an inmate notice of appeal dated June 6, 2019 against conviction and sentence. By order dated September 18, 2020, Hourigan J.A. granted Mr. Campbell a s. 684 order. A solicitor’s notice of appeal was filed on October 8, 2020. [6] By notice of application dated August 16, 2021, Mr. Campbell seeks bail pending appeal. [7] The Crown opposes the application. The Crown takes the position that while Mr. Campbell’s appeal is not frivolous and he will surrender into custody in accordance with the terms of a release order, he has not demonstrated that his detention is not necessary in the public interest: Criminal Code , R.S.C. 1985, c. C-46, s. 679(3)(c). II.       RESIDUAL PUBLIC SAFETY CONCERNS [8] The Crown submits that there are residual public safety concerns inherent in Mr. Campbell’s release plan as it proposes that for the first two weeks following his release, the appellant live alone at his mother’s home, not in the presence of any of his sureties. The appellant’s mother proposed this arrangement in order to minimize the risk that she might contract COVID-19 from him upon his release. [9] At the hearing, the appellant abandoned this part of his release plan in light of the Crown’s opposition. Under his amended plan, Mr. Campbell would reside in his mother’s presence from the time of his release. [10] As a result of this amended plan, I am satisfied that there are not any residual public safety concerns with the proposed release plan. As well, Mr. Campbell complied with the terms of his presentence interim release. [11] I next consider the reviewability and enforceability interests that make up the public confidence component of Criminal Code s. 679(3)(c). III.      REVIEWABILITY INTEREST A. Introduction [12] The strength of the grounds of appeal play a central role in assessing the reviewability interest. In conducting a more pointed assessment of the strength of an appeal beyond the “not frivolous” requirement, a court must “examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record”: R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250 , at para. 44. The court’s task is to ascertain “if the grounds of appeal clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland , at para. 44. [13] On this application, Mr. Campbell focuses on three grounds of appeal: (i) the trial judge failed to properly instruct the jury on the need for cultural competence and context when assessing the evidence of the appellant’s post-offence conduct; (ii) the trial judge failed to properly instruct the jury on reasonable doubt; and (iii) the verdict was unreasonable. [14] In his reasons granting the s. 684 order, Hourigan J.A. considered the merits of the appeal, concluding that he would not categorize any of the grounds of appeal as strong. However, he was “not prepared to conclude that none of the grounds are arguable”: R. v. Campbell , 2020 ONCA 573, at para. 10. B. Grounds of appeal concerning the charge to the jury [15] Two of the grounds concern the trial judge’s instructions to the jury. Post-offence conduct [16] The first concerns the charge regarding how the jury could use the evidence of Mr. Campbell’s conduct at the time of his arrest. [17] After Mr. Karshe was left unconscious on the ground, he awoke and walked to a gas station, where help was summoned. The police were called. Three plain clothes officers went to Ms. Lafleur’s apartment building where they set up surveillance of her apartment door in the stairwell. When Mr. Campbell and another male left the apartment, the plain clothes officers exited the stairwell. At least one officer had his gun drawn. Mr. Campbell ran. The officer who testified at trial was confident that he said something to the effect of “stop, police,” but he was not confident about whether he did so before or after Mr. Campbell started to run. Mr. Campbell fled to the stairwell on the opposite side of the hall. The arresting officers pursued him downstairs and into the hallway of the tenth floor. There, Mr. Campbell stopped running, faced the approaching officers, and put his hands in the air. He was tackled to the ground, handcuffed, and told he was under arrest for attempted murder. [18] In his charge, the trial judge gave detailed instructions on the use the jury could make of the evidence about what Mr. Campbell did or said during the events surrounding his arrest. In the course of his instructions, the trial judge reviewed Mr. Campbell’s evidence about those events: [94] Mr. Campbell testified that he ran because three men were chasing him with firearms drawn. He did not realize they were police officers until he was handcuffed. [95] Mr. Campbell testified that the previous evening, some guy was calling Ms. La[f]leur repeatedly and to his knowledge, she did not take any of the calls. In his police statement there is evidence that Mr. Campbell was concerned about this guy and that he may send some men over. He did not know the guy and had never met him. When asked why he would be concerned, he said he was paranoid. [19] The trial judge also reviewed some of the evidence given by Officer Wilson about those events: [103] When cross-examined, Officer Wilson agreed that it would be reasonable to run if three unknown men with guns were chasing you, or something to that effect. However, it was also the officer's evidence that he and the other officers repeatedly yelled "Stop police" or something to that effect and Mr. Campbell stopped running on the 10th floor. [20] In the portion of the charge setting out the position of the defence, the trial judge stated: Defence counsel suggests that the, or submits rather, that the after-the-fact conduct alleged by the Crown, that is Campbell running from police in civilian clothing is of no assistance in determining the legal issues in this case. Mr. Campbell had a perfectly reasonable explanation for why he ran. In fact, defence counsel asks us to recall Officer Wilson's testimony that he, too, would have done the same, that is run away from strange men with guns. [21] The appellant does not dispute that the charge on post-offence conduct contains the required elements for a standard charge on such evidence. The appellant’s complaint is that the charge was legally deficient because it was insufficient on the issue of the issue of race/cultural context of the appellant’s evidence – specifically, the perspective of the appellant, a Black man, when faced with plain clothes officers with their guns drawn. [22] During the pre-charge conference, defence counsel advised that she did not have major issues with the post-offence conduct section of the charge. While defence counsel requested certain wordsmithing changes to the narrative of events, no request was made to add language of a racial/cultural context nature. Reasonable doubt [23] The appellant submits that the trial judge erred when, following questions from the jury, he failed to provide further instructions on the issue of credibility or recharge on R. v. W.(D.) , [1991] 1 S.C.R. 742. [24] After retiring, the jury sent the judge a question: “ We would like to hear a playback of Jamal Karshe's cross-examination.” A discussion ensued amongst the trial judge and counsel whether the entirety of the cross-examination should be played back or whether the jury should be asked if there were specific portions of the cross-examination they wished to listen to. It was agreed to bring the jury back and ask if they could be more definitive about what evidence they wanted to hear. The trial judge then asked the jury to retire and provide a written answer to the following question: The only question we had and I'm going to put the question to you and then you're going to have to go out and put your response in writing, but is there a certain area you're looking at or do you want to hear the whole thing generally? [25] Further discussion ensued once the jury retired. Defence counsel stated that since the jury seemed to be discussing the credibility and reliability of Mr. Karshe’s evidence, it might be best to playback the entire cross-examination. [26] The jury returned with a two-part written request regarding Mr. Karshe’s evidence: Did — in anywhere during Mr. Karshe's testimony, was he asked if he knew or had knowledge of a gun, I think in Heather's apartment prior to seeing it in Mr. Campbell's hands? Would like to hear the defence attorney's suggestion at the end of Mr. Karshe's testimony and his responses. [27] Further discussion ensued amongst the trial judge and counsel. [28] Defence counsel initially submitted that the whole cross-examination should be played to the jury. Ultimately, the trial judge and counsel agreed that the jury’s inquiries could be addressed by playing back a specific part of Mr. Karshe’s cross-examination. The jury returned; the portion was played back; at the end of which the trial judge inquired: All right, members of the jury. You've heard that exchange. Were you able to hear it? And did it answer the questions or the inquiries or do you need to hear further evidence? Everyone seems okay. All right. Then I'll ask you to step out again and continue your discussions for a little while anyways. Thank you. [29] No request was made by defence counsel that the trial judge provide further instructions on the issues of credibility and reasonable doubt. C. Unreasonable verdict [30] The appellant submits that the jury’s verdict was unreasonable for two reasons: (i) the only direct evidence led by the Crown about the events came from the complainant, Mr. Karshe; and, (ii) although a gun was found in the stairwell near the place of Mr. Campbell’s arrest, his DNA was not found on that gun. [31] The Crown counters that the mere fact that Mr. Campbell’s DNA was not found on the firearm did not make the pointing a firearm conviction unreasonable because: There was ample evidence to support the jury’s verdict on this count: the victim testified that the [appellant] threatened him with a handgun wrapped in green cloth; the arresting officer testified that the [appellant] looked like he was running with a weapon; and a handgun wrapped in green cloth was recovered from the stairwell the [appellant] ran through. D. Potential grounds of appeal [32] The appellant’s notice of application hints at possible other grounds of appeal that are “under investigation by appellate counsel”: the propriety of the Crown’s cross-examination of the appellant and trial counsel’s concession of the voluntariness of the appellant’s statement to the police. Given that these potential grounds of appeal are “under investigation”, undeveloped, and do not form part of the notice of appeal, I am not prepared to consider them as part of this application: Oland , at para. 45. E. Assessment [33] I have considered the three grounds of appeal in light of the trial judge’s charge to the jury, the discussion between the trial judge and defence counsel during the pre-charge conference and following the question from the jury, and the evidence regarding the handgun and the circumstances of Mr. Campbell’s arrest. While the absence of an objection from defence counsel is not determinative of the two issues regarding the instructions to the jury, it does inform the consideration of whether the trial judge adequately tied the legal instructions to the specific circumstances of the case. [34] I agree with the assessment made by Hourigan J.A. in his s. 684 reasons – that is to say, I cannot conclude that none of the grounds are arguable. At the same time, I do not view them, to use the language of Oland , as clearly surpassing the minimal standard required to meet the “not frivolous” criterion. IV.      ENFORCEABILITY INTEREST [35] Mr. Campbell has been convicted of very serious offences. The circumstances of the offences, as described in para. 3 above, were violent and caused Mr. Karshe significant harm. The global sentence imposed of seven years’ imprisonment underscores the seriousness of the offences. V.       BALANCING THE INTERESTS [36] Balancing the reviewability and enforceability interests that make up the public confidence component of Criminal Code s. 679(3)(c) requires a qualitative and contextual assessment, measured through the eyes of a reasonable member of the public: Oland , at paras. 47 and 49. [37] I conclude that in the present case the enforceability interest significantly outweighs the reviewability interest. The grounds of appeal, although arguable, do not “clearly surpass” the minimal standard of the “not frivolous” criterion. The offences were very serious, understandably attracting a lengthy prison sentence. [38] This is not a case where the anticipated delay in hearing the appeal relative to the length of the sentence tips the balance in favour of reviewability: Oland , at para. 48. The appellant delayed for a considerable period of time before bringing this application for release: he waited over two and one-half years following his conviction and one year since the appointment of counsel following the s. 684 application. [39] As well, the appellant has not indicated a willingness to move his appeal along with dispatch. While the appellant proposes as a condition of release the standard term of pursuing his appeal “with all due diligence”, he objects to the Crown’s request that any release order require him to perfect his appeal by the end of this year. I pressed applicant’s counsel on this point during the hearing, but it is obvious that he lacked instructions to commit to any specific perfection date, let alone a reasonably prompt perfection date. Such an unwillingness raises concerns on my part that if release were to be granted, the appellant would not pursue his appeal with all due diligence, contrary to the general obligation that all appellant offenders proceed with their appeals in a timely fashion. [40] Accordingly, on the record before me, I am not satisfied that the appellant has demonstrated that his detention is not necessary in the public interest. DISPOSITION [41] For these reasons, the application for bail pending appeal is dismissed. “David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Narwhal International Limited v. Teda International Realty Inc., 2021 ONCA 741 DATE: 20211019 DOCKET: C68786 Strathy C.J.O., Pepall and Pardu JJ.A. BETWEEN Narwhal International Limited Applicant (Appellant) and Teda International Realty Inc. Respondent (Respondent) Gennady Tcherny, President of Narwal International Limited, acting as agent for the appellant, with leave of the Court Stephanie Tassopoulos, for the respondent Heard: By written submissions COSTS ENDORSEMENT [1] Having received and considered the parties’ written submissions, we order costs to be paid by the appellant to the respondent in the amount of $7,500, inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “S.E. Pepall J.A.” “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Bond, 2021 ONCA 730 DATE: 20211019 DOCKET: C67283 MacPherson, Roberts and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Andrew Bond Appellant Craig Zeeh and Jessica Zita, for the appellant Mabel Lai, for the respondent Heard: September 29, 2021 by video conference On appeal from the convictions entered on June 11, 2018 and the sentence imposed on October 23, 2018 by Justice David L. Corbett of the Superior Court of Justice. MacPherson J.A.: A. Introduction [1] In a judge alone trial, the appellant was convicted of several offences relating to drugs and a firearm. He received a global sentence of 11 years, less 2 years and 11 months for pre-trial custody. The appellant appeals the convictions and sentence. [2] The principal grounds of appeal relating to the convictions are that the trial judge erred in upholding the warrants that led police to discover the drugs and firearm and in his treatment of the warrantless “pinging” of the appellant's cell phone, including his finding that the evidence obtained under the warrants that the appellant says was derived from the “pinging” should not be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms . [3] The only ground of appeal relating to the sentence is that the trial judge erred in his calculation of credit for pre-trial custody. B. facts (1) The parties and events [4] Four confidential informants led police to believe that the appellant was dealing cocaine from an apartment on Jane Street in Toronto and was habitually armed with a semi-automatic handgun. Three informants had proved reliable in the past and one had never previously provided information to police. [5] Using location “pings” from a cell tower to the appellant’s cell phone, in addition to database searches and surveillance, police found three addresses with which the appellant was associated and where he was suspected of dealing cocaine. They also found that the appellant had a lengthy criminal record. [6] On December 27, 2016, the police applied to a Justice of the Peace for search warrants relating to those addresses with which Bond was associated: a residential apartment (the “apartment”), a commercial condominium (the “commercial unit”), and a green Honda Accord (the “vehicle”). [7] At 2:32 p.m. on December 27, the Justice of the Peace denied the warrants and provided reasons: a. The relied upon confidential informant information was dated, and there was no indication when the information given was actually observed or how/when it was acquired; b. The ITO indicated the information provided was corroborated in each case, yet not all information was clear on the corroborating details; c. Appendix “A” items to be seized was too broad, and the ITO lacked supporting information to provide a nexus; and d. There were insufficient reasonable grounds to believe items to be seized would be at the specific location. [8] Later the same date, the police submitted the same ITO to a second application judge at the Ontario Court of Justice. The only addition to the ITO was paragraph 19 which indicated that the application had been submitted to and refused by a Justice of the Peace. The reasons for the refusal were included in the ITO. At 5:20 p.m., the second application judge granted the authorization. [9] The police executed the warrants. At the apartment, they found property linking the appellant to the apartment, cocaine, and cocaine paraphernalia. In the commercial unit, police found property linking the appellant to the premises, a firearm and ammunition, and enough cocaine to give rise to the inference that it was possessed for the purpose of trafficking. Police found no material evidence in the vehicle. After the apartment and commercial unit were searched, police obtained another warrant to search the appellant’s storage locker where they found small amounts of cocaine. (2) The trial judge’s Charter ruling [10] At the trial, the appellant challenged both the validity of the search warrants and the warrantless search of his cell phone by virtue of “pinging” a nearby cell tower. The trial judge framed the two issues in this fashion: During the trial the defence sought to exclude evidence on the basis that it was obtained in violation of Mr. Bond’s rights to be free from unreasonable search and seizure. This application had two aspects argued before me: (a) Police obtained warrants on the basis of information from confidential informants. The defence argued that the warrants could not be upheld on the basis of unredacted portions of the Information to Obtain (“ITO”) used before the issuing justice. (b) Police obtained information about Mr. Bond’s whereabouts by “pinging” the phone with which he was associated. Police did this with the assistance of Bell Canada without first obtaining a warrant to do so. The defence argued that this was a warrantless search and all information obtained by police as a result of this “pinging” should be excluded. [11] In comprehensive reasons, the trial judge rejected the appellant’s submissions on both issues. [12] On the validity of the warrants issue, the trial judge concluded: The judicial summary and the redacted ITO make it clear that police had reasonable and probable grounds to believe Mr. Bond had committed criminal offences and was probably still committing them on an ongoing basis. In terms of the test in Debot , the totality of this evidence is “credible, corroborated and compelling”. Direct evidence from four informants, three of whom had previously proved reliable, is a very strong case to establish reasonable grounds to believe that a crime has been and will be committed. The weaker part of the evidence in support of the warrants concerns whether the places to be searched are sufficiently connected to Mr. Bond to justify authorization of search warrants. And the evidence in respect to these issues is not found in the information obtained from the confidential informants. The defence has full access to the information before the issuing justice on these contested points, and is able to challenge it fully in this court. The evidence pointing to the Apartment and the Commercial Condo, fully disclosed to the defence as it was provided to the issuing justice, was more than sufficient to ground issuance of the warrants. The Crown has satisfied step 6 of Garofoli in respect to the basis for believing Mr. Bond was an armed drug dealer. The warrants are upheld. [13] On the “pinging” the appellant’s cell phone issue, the trial judge found no s. 8 Charter infringement. Alternatively, he was prepared to assume that a Charter infringement was made out. However, even excluding the “pings” evidence, he declined to strike down the search warrants or exclude the other evidence obtained during those searches under s. 24(2) of the Charter. C. issues [14] The appellant frames the issues as follows: Conviction appeal (1) The trial judge’s written reasons on the Charter application are an after-the-fact justification; (2) The trial judge misapprehended the nature of the application; (3) The trial judge erred in finding that the affiant’s judge shopping was permissible; and (4) The trial judge provided insufficient reasons on the Charter application. Sentence appeal (5) The trial judge erred in his calculation of pre-trial custody. D. analysis (1) Reasons as improper after-the-fact justification for result [15] The genesis of the appellant’s argument on this issue is an email the trial judge sent to counsel during the trial: The defence application to exclude evidence is dismissed except for the cellphone “pings” information obtained without a warrant. In respect to those, I am not satisfied that urgency was of such kind as to justify proceeding without a warrant. However, I am satisfied that the police acted in good faith in proceeding without a warrant. In the result, I find that search to have been “unreasonable” within the meaning of s. 8 of the Charter for having been done without a warrant. My reasons for decision are reserved and will be released in due course. [16] After the trial concluded, the trial judge issued comprehensive reasons for his Charter ruling. The appellant contends that “[w]hen the written reasons were finally released, they revealed that the trial judge’s findings departed significantly from his brief oral conclusions given over a year earlier.” (Appellant’s Factum, at para. 39). [17] I am not persuaded by this submission. I see no clear dichotomy between the trial judge’s very brief ruling during the trial and his comprehensive reasons for the ruling after the trial. Indeed, as the trial judge explained in his formal reasons, the “pings” issue was peripheral to the broader search warrants issue: In my view, even if the evidence from the “pings” was excluded, the Crown’s case would not be materially affected. Police had an independent basis for believing that Mr. Bond was living at the Apartment, and that basis was sufficient for granting the warrants. The “pings” were not relevant to any issue other than identifying Mr. Bond’s whereabouts, an issue, itself, only relevant to identifying the premises to be authorized under the warrants. The warrants were justified without the “pings”, and so excluding the “pings” would not affect anything else: none of the evidence admitted against Mr. Bond, other than the “pings” themselves, was derived from the “pings”. Indeed, police subsequently conducted direct surveillance that provides a much stronger basis – the one truly relied upon by the Crown – to tie Mr. Bond to the premises searched. On this analysis, society’s interest in adjudication on the merits would be unaffected by exclusion of the evidence, and I would exclude the evidence under s. 24(2). [18] I agree with this analysis. (2) Misapprehension of the nature of the application [19] The authorization granted by the second application judge listed the enumerated offence as unlawful possession of a firearm contrary to s. 91 of the Criminal Code . The appellant submits that the trial judge in his reasons focused exclusively on his drug trafficking and ignored whether he possessed a firearm and whether it would be located in the places to be searched. [20] I am not persuaded by this submission. In his reasons, the trial judge made extensive reference to both drugs and firearms: i. All four of the confidential informants provided detailed and specific first-hand information, identifying Andrew Bond as a cocaine dealer, carrying on business as such at [an apartment on] Jane Street, Toronto, and provided information that Mr. Bond possessed and used a firearm in his drug-dealing. ii. Each of the confidential informants identified a photo of Andrew Bond as the armed drug dealer. iii. Three of the confidential informants described the firearm as a semi-automatic handgun (one of whom described it as “Glock-style, police-style”) and said that Mr. Bond keeps the gun tucked in his front waistband. I am satisfied that this information, taken together, provides evidence: b. That the Subject is habitually armed with a semi-automatic handgun which the Subject carries by tucking the gun in at the waist of his pants. Here, the totality of information from the confidential informants grounded the officer’s belief that Mr. Bond was an armed and dangerous drug dealer, selling cocaine in Toronto. On the basis of information from the confidential informants and the fruits of police investigation … Mr. Bond appears to be a very dangerous man, systematically dealing hard drugs, carrying a loaded semi-automatic handgun, in defiance of multiple prohibition orders. [21] In summary, these passages, and other similar passages, completely belie the appellant’s submission that in his Charter reasons the trial judge focused “exclusively” on the alleged drug offences. (3) The “judge shopping” issue [22] As set out in the Facts section of this judgment, on December 27, 2016, the police applied twice for search warrants relating to two properties and one vehicle. [23] At 2:32 p.m., the Justice of the Peace refused to authorize the warrants, giving four reasons in support. [24] At 5:20 p.m., the justice of the Ontario Court of Justice authorized the warrants, without reasons. [25] At trial, the appellant raised this issue, labelling it “impermissible judge-shopping”. The trial judge dealt with it in a footnote: The defence argued that taking the second request to [the justice at the Ontario Court of Justice] was impermissible judge-shopping. Police disclosed the prior request to the Justice of the Peace, including the rejection and reasons for the rejection, when they made the request of [the second application judge]. This is not impermissible judge-shopping: it was within [the second application judge’s] discretion to decide the warrant request, and he did so on full and fair information: R. v. Campbell , [2014] OJ No. 6541 (SCJ), per McMahon J. [26] The appellant submits that the trial judge erred in reaching this conclusion. His position on this issue is succinctly summarized in his factum, at para. 58: Judge shopping strikes at the core of our judicial system. The concept undermines the high level of confidence that is placed in our judicial system, where the decision of a judicial officer is final and binding unless and until it has been overturned by a higher court. Section 487(2) of the Criminal Code provides that a “justice” may issue a warrant. The Criminal Code defines a “justice” as a Justice of the Peace or a judge of the provincial court. Therefore, [the justice at the Ontario Court of Justice] cannot be considered a higher court than [the] Justice of the Peace By applying for successive warrants on the same information to a different judge of the same court, the police committed impermissible judge-shopping . [Emphasis added.] [27] I do not accept this submission, including the emphasized conclusion. [28] I begin by observing that I do not think that there should be a bright-line rule that the police cannot make a second application for a warrant if the first application is rejected. It needs to be recalled that there is no appeal from the initial refusal: see R. v. Campbell , [2014] O.J. No. 6541 (S.C.), at para. 40. [29] On this point, I agree with what Thackray J.A. said in R. v. Duchcherer , 2006 BCCA 171, at para. 29: The procedure of applying successively for search warrants cannot reasonably be said, as such, to be an abuse of process or a “subversion” of the judicial system. Within the process there can, of course, be abuses that would lead to such a finding. It will be a fact driven decision in each case whether the circumstances amount to an abuse of process. [30] My second contextual observation is that the second judge considering whether to grant the search warrant is not sitting in appeal of the first judge’s decision nor in review of that judge’s decision by way of prerogative writ. As Thackray J.A. said in Duchcherer , at para. 17, “where a judge knows of the previous application to a justice of the peace for a search warrant, but exercises his own discretion, it is a hearing de novo , not a review of the decision of the justice of the peace.”: see also R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 41. [31] This court in Colbourne , at para. 42 began to address the issue of whether a warrant could be granted on a second application. I agree with Doherty J.A. that “had the second information been the same as the first information, the initial refusal would have played a much more significant role in how the second Justice of the Peace exercised his or her discretion.” While it does play a role and should be considered by the second application judge, the fact a warrant request has been rejected is not determinative to the second request. This is supported by Doherty J.A.’s further reasoning in Colbourne , at para. 42, that he “need not decide whether I would go so far as to say that two applications based on the same information are improper even if full disclosure of the initial refusal is made.” [32] Turning to the merits of the appellant’s submission on this issue, in my view, the disclosure to the second application judge of the previous refusal and the reasons for that refusal ensured the openness and transparency of the process that the appellant submits was lacking. Those factors were endorsed by McMahon J. in Campbell , at para. 56: In submitting the materials the officer should ensure the ITO includes the particulars of the earlier refusal, including the time, name of the judicial officer, and the reasons of refusal. A copy of any reason or endorsement provided by the judicial officer who refused the warrant should be an appendix to the ITO. [33] As the trial judge noted in the footnote dealing with the judge-shopping issue, the police complied with these factors. The second application judge, who issued the search warrant, was fully apprised of the previous application, its timing, the fact that it had been rejected, and the reasons for the rejection. He was well-positioned to consider the application de novo . [34] McMahon J. in Campbell also identified another factor to consider, namely that no specific officer should be selecting individually any reviewing judge; instead, the second judicial officer should be the one on call. I note that the appellant does not allege that this factor is in play in this case. [35] In conclusion, like McMahon J. in Campbell , at para. 58, “I do not accept the argument that allowing successive search warrant applications on the same materials would amount to judge-shopping and would be a reason not to allow for such procedure”. Each case will need to be addressed on its own facts. In this case, the trial judge did not err by affirming the validity of the second search warrant. (4) Insufficient reasons [36] The appellant submits that the trial judge’s written reasons did not address critical issues or allow for meaningful appellate scrutiny. [37] I disagree. The trial judge wrote careful and extensive (66 paragraphs) reasons and this court, with the assistance of the oral and written submissions of counsel, is well-positioned to provide meaningful appellate scrutiny. (5) Sentence appeal [38] The trial judge imposed a sentence of 11 years, less 2 years and 11 months for pre-trial custody. The appellant and respondent jointly submit that the trial judge made a modest error in his calculation of credit for pre-trial custody. I accept this submission and would give the appellant an additional 70 days’ credit for pre-trial custody. E. disposition [39] I would dismiss the conviction appeal. I would allow the sentence appeal and assign an additional 70 days to the calculation of pre-trial custody. Released: October 19, 2021 “JCM” “J.C. MacPherson J.A.” “I agree. L.B. Roberts J.A.” “I agree. B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736 DATE: 20211020 DOCKET: C68842 Rouleau, Hoy and Thorburn JJ.A. BETWEEN Kyko Global Inc. Plaintiff (Respondent) and M/S Crawford Bayley & Co. and Sanjay Asher Defendants (Appellants) James Bunting and Anisah Hassan, for the appellants Jayson W. Thomas and Laura Chiu, for the respondent Heard: September 24, 2021 by video conference On appeal from the order of Justice Michael T. Doi of the Superior Court of Justice, dated October 30, 2020, with reasons at 2020 ONSC 6537. Hoy J.A.: [1] The appellants, M/S Crawford Bayley & Co. and Sanjay Asher (“Mr. Asher”), are a law firm based in Mumbai, India, and a senior partner of that firm, respectively. Before the motion judge, they unsuccessfully argued that Ontario lacks jurisdiction over, and is not the convenient forum for, the respondent, Kyko Global Inc.’s action against them. They appeal the motion judge’s dismissal of their motion seeking the stay or dismissal of Kyko’s action. Background [2] Kyko, an Ontario corporation, had retained the appellants to provide an opinion on the enforceability of a guarantee to be provided by Sical Logistics Limited (“Sical” or the “guarantor”), a publicly-traded company in India. The guarantee was security for a trade finance facility provided by Kyko to another Indian company, West Coast Marine Private Limited. In a letter dated September 9, 2010 addressed to Kyko’s Ontario counsel, the appellants opined that the guarantee was enforceable in accordance with its terms. The guarantee had Ontario choice of law and forum provisions. [3] Unbeknownst to Kyko, it was Mr. Asher’s cousin, Yogesh Asher, who effectively brokered Kyko’s agreement to provide the trade facility to West Coast Marine Private Limited. [4] The facility went into default and Kyko obtained a default judgment in Ontario against Sical. Sical obtained an interim injunction from the High Court of Judicature at Madras, in India, to restrain enforcement of the default judgment by alleging that the guarantee was a forgery. Police in the City of Chennai (also known as Madras) opened a criminal investigation and concluded that the signatures on the guarantee were forged. [5] Kyko subsequently brought this action against the appellants for negligent and fraudulent misrepresentation and breach of contract. At the time the motion was heard, Sical’s injunction application was still pending before the Madras High Court. The motion judge noted that Kyko concedes that its claim against the appellants may only proceed if the guarantee is a forgery, and as a result depends on the outcome of the proceeding in the Madras High Court. The motion judge’s decision [6] Applying the test in Club Resorts Ltd. v. Van Breda , 2012 SCC 17, [2012] 1 S.C.R. 572, the motion judge concluded that two presumptive connecting factors were present. Therefore, there was a presumption that there was a real and substantial connection between the subject matter of the litigation and Ontario. [7] First, there was a good arguable case that the tort (fraudulent or negligent misrepresentation) took place in Ontario: in particular, there was a good arguable case that the appellants’ legal opinion was first provided to Kyko in Ontario; arrangements were made in Ontario to advance the credit facility; and Kyko suffered damages in Ontario. [8] Second, there was a good arguable case that the contract connected to the dispute was made in Ontario. Kyko pleaded this in its statement of claim, and the appellants did not adduce any evidence to challenge or deny it. In the absence of evidence from the appellants to challenge or deny the facts pleaded in Kyko’s claim, Kyko could rely on those facts, which are presumed to be true, to presumptively demonstrate jurisdiction simpliciter : Ontario v. Rothmans Inc. , 2013 ONCA 353, 115 O.R. (3d) 561, at paras. 111-114, leave to appeal refused, [2013] S.C.C.A. No. 327; Vahle v. Global Work & Travel Co. Inc. , 2020 ONCA 224, at para. 13. [9] The motion judge noted that the burden of rebutting the presumption of jurisdiction is on the party challenging it. The appellants were required to show facts to demonstrate that the presumptive connecting factors do not point to any real relationship between the subject matter of the litigation and the forum, or point to a weak relationship: Van Breda , at para. 95. The motion judge found that they had failed to do so and, accordingly, that Ontario had jurisdiction simpliciter over the action. [10] The motion judge then considered whether the appellants had discharged their burden of showing why jurisdiction should nevertheless be declined in favour of a different forum ( forum non conveniens ). He correctly noted that the standard to displace the plaintiff’s chosen forum is high: the alternate forum must be “clearly more appropriate” such that it would be fairer and more efficient to decide the dispute there: Van Breda , at paras. 108-9. [11] As I discuss in more detail below in addressing the fifth issue that the appellants raise on appeal, the motion judge considered six factors in the course of his analysis. He concluded that the appellants had not discharged their burden to show that their proposed alternate forum, Mumbai, is clearly more appropriate. Issues on appeal [12] The appellants raise five issues on appeal: 1. Did the motion judge reverse the burden of proof on the test for jurisdiction simpliciter ? 2. In his jurisdiction simpliciter analysis, did the motion judge err by accepting allegations in the statement of claim as true despite evidence to the contrary? 3. Did the motion judge discount the appellants’ evidence on the location of their witnesses in his forum non conveniens analysis as a result of a misreading of the applicable jurisprudence? 4. Did the motion judge fail to consider relevant factors in his forum non conveniens analysis? 5. Is the motion judge’s decision that the appellants had not discharged their burden to show that Mumbai was a clearly more appropriate forum unreasonable? First, I address the standard of review. Then I address the appellants’ five issues in turn. Standard of review [13] Whether or not a motion judge has erred in the application of the test for jurisdiction simpliciter is a question of mixed fact and law, reviewable for palpable and overriding error, unless an error in the application of the test can be attributed to an extricable question of law: Airia Brands Inc. v. Air Canada , 2017 ONCA 792, 417 D.L.R. (4th) 467 at para. 39, leave to appeal refused, [2017] S.C.C.A. No. 476. [14] The application of forum non conveniens is an exercise of discretion reviewable in accordance with the principle of deference to discretionary decisions. An appeal court should intervene only if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision: Young v. Tyco International of Canada Ltd. , 2008 ONCA 709, 92 O.R. (3d) 161, at para. 27; Éditions Écosociété Inc. v. Banro Corp. , 2012 SCC 18, [2012] 1 S.C.R. 636, at para. 41; Haaretz.com v. Goldhar , 2018 SCC 28, [2018] 2 S.C.R. 3, at para. 49. Errors of law and clear and serious errors of fact may also give grounds for intervention: Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP , 2016 SCC 30, [2016] 1 S.C.R. 851, at para. 54; Van Breda at para. 112. [15] With the standard of review in mind, I turn now to the appellants’ arguments on jurisdiction simpliciter . (1) Did the motion judge reverse the burden of proof on the test for jurisdiction simpliciter ? [16] As noted above, the motion judge concluded that Kyko has a good arguable case that Kyko first received the opinion in Ontario, when it was sent to Kyko’s legal counsel. [17] The appellants point to the evidence that the original of the opinion was delivered to Kyko’s CEO, Mr. Kulkarni, in India. They argue that the motion judge erred in applying the test for jurisdiction simpliciter : he reversed the burden of proof by only considering whether that evidence rebutted the presumption of jurisdiction, and not in determining whether Kyko had discharged its onus of establishing that there was a good arguable case. [18] I reject this argument. The motion judge recounted that on September 9, 2010, Mr. Asher signed the opinion for his firm and faxed it to Ms. Thomas, Kyko’s external legal counsel, at her office in Brampton, Ontario. Then, on September 13, 2010, Mr. Asher’s associate, Ms. Batra, emailed Ms. Thomas an electronic version of the opinion. That email indicated that the opinion “is being handed over to Yogesh [Asher]”. This was done so that he could hand-deliver the original opinion to Mr. Kulkarni. There was no evidence about when the original opinion was delivered to Mr. Kulkarni. The motion judge wrote that “[i]t also appears from the record that Mr. Kulkarni could not have received the Opinion before it was sent to Ms. Thomas by facsimile on September 9, 2010 and by email on September 13, 2010.” [19] Citing Rothmans , at paras. 53-54, and Vahle , at para. 13, the motion judge held that on a jurisdiction motion brought at an early stage of a proceeding, the court does not assess the facts of a case beyond deciding whether a “good arguable case” is shown to ground jurisdiction. After considering the appellants’ argument in relation to the delivery of the original opinion to Mr. Kulkarni, the motion judge concluded that Kyko has a good arguable case that Kyko first received the opinion in Ontario. The motion judge did not reverse the burden of proof. He considered the evidence on which the appellants rely both in concluding that Kyko has a good arguable case, and in concluding that the appellants had not rebutted the presumption of jurisdiction. [20] The appellants also argue that the motion judge’s conclusion that there was a good arguable case that the receipt of their opinion in Ontario by Ms. Thomas completed the tort of misrepresentation was tainted by legal error. They say that the document had to be received by a principal or “directing mind” of Kyko, and that did not occur until the opinion was delivered to Mr. Kulkarni in Mumbai. [21] I reject this argument. The opinion was addressed to Ms. Thomas. Mr. Kulkarni’s evidence was “as long as our lawyers were happy, I was happy. There was nothing for me to review.” Here, there is clearly a good arguable case that receipt of the opinion by Ms. Thomas was receipt by Kyko. [22] Moreover, the tort of negligent or fraudulent misrepresentation occurs where the information is received and relied upon. Even if the opinion were first received in India, it should not deprive Ontario of jurisdiction. The appellants provided the opinion with the clear understanding that it would be relied on in Ontario: see Central Sun Mining Inc. v. Vector Engineering Inc. , 2013 ONCA 601, 117 O.R. (3d) 313, at para. 33, leave to appeal refused, [2013] S.C.C.A. No. 475. (2) Did the motion judge err by accepting allegations in the statement of claim as true despite evidence to the contrary? [23] As noted above, the motion judge further concluded that there was a good arguable case that the contract connected to the dispute was made in Ontario. Kyko pleaded this in its statement of claim, and the appellants did not adduce any evidence to challenge or deny it. [24] The appellants argue that the motion judge’s conclusion was tainted by palpable and overriding error. They say that Kyko’s pleading was in fact contradicted by Mr. Kulkarni’s evidence on cross-examination. The motion judge accordingly erred in relying on the pleaded facts, and there was not a good arguable case that the contract connected to the dispute was made in Ontario. Further, they argue that the motion judge erred in law in permitting Kyko to rely on its pleading that the contract was made in Ontario: that was a legal conclusion, not an allegation of fact. Moreover, it was a bald conclusory statement and was not sufficiently particularized. [25] I disagree. [26] In cross-examination, Mr. Kulkarni was directed to the Notice of Examination, which asked that he produce evidence of any payment made by Kyko to the appellants “in return for the provision of legal services” and “any contract or retainer agreement between Kyko and the [appellants]”. [27] Mr. Kulkarni confirmed that he did not produce any such documents because there weren’t any. During that exchange, he made the following statement, on which the appellants rely: Obviously we didn’t make any payment, if that is the question. But say “in return for the provision of legal services”, I said that they didn’t provide any legal services to Kyko, so I don’t know what this thing refers to. [Emphasis added.] [28] The appellants say the substance of Mr. Kulkarni’s evidence is that Kyko did not have a contract with the appellants (they did not provide any legal services to Kyko) and, since there was no contract, there could not have been a contract made in Ontario. [29] I am not persuaded that the motion judge’s conclusion that there was a good arguable case that the contract connected to the dispute was made in Ontario is tainted by palpable and overriding error. [30] On the motion, there was no dispute that the appellants delivered the opinion and that they had been retained to do so. Indeed, Mr. Asher’s evidence was that Kyko required that Crawford Bayley provide a legal opinion concerning the guarantee and that Crawford Bayley did not have written agreements with all its clients. The appellants did not argue below that there was no contract. The only issue was where the contract was made. In context, including that the opinion was addressed to Kyko’s Ontario legal counsel, Mr. Kulkarni’s evidence does not contradict Kyko’s pleading that the contract was made in Ontario. The appellants should not now be permitted to assert that there was no contract. [31] Nor am I persuaded that the motion judge erred in principle by failing to require Kyko to lead evidence to support its pleading that the contract was made in Ontario. The appellants do not appear to have argued below that Kyko could not rely on its pleading to establish a presumptive connective factor because it pleaded a legal conclusion, or because it did not provide sufficient particulars. Moreover, in context, I would not characterize the allegation as a purely legal conclusion. Rather, as the motion judge found, it is essentially a factual allegation. [32] In Rothmans , at para. 113, this court suggested that a plaintiff asserting jurisdiction may be required call evidence to support undenied allegations in a statement of claim either where the cause of action as pleaded appears to be devoid of merit or where the pleadings fail to demonstrate any air of reality concerning the possible existence of the presumptive connecting factor. I agree with the motion judge that this is not such a case. Kyko pleaded that it is an Ontario corporation with its head office in Brampton, Ontario, and that the appellants delivered the opinion. It is open to the appellants to seek particulars under r. 25.10 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [33] In summary, I am not persuaded that the motion judge committed any palpable and overriding error of fact or any extricable error of law in finding that Ontario had jurisdiction simpliciter . I turn next to the appellants’ challenges to the motion judge’s forum non conveniens analysis. (3) Did the motion judge discount the appellants’ evidence on the location of their witnesses in his forum non conveniens analysis as a result of a misreading of the applicable jurisprudence? [34] One of the relevant factors in determining whether a defendant has discharged its burden of showing why jurisdiction should be declined to displace the forum chosen by the plaintiff is the comparative convenience and expense for the parties to the proceeding and for their witnesses in litigating in the court or in any alternative forum. [35] The motion judge concluded that this factor was neutral in this case. This ground of appeal arises out of the underlined portion of the passage below from the motion judge’s reasons addressing the comparative convenience and expense for the witnesses: [51] Similarly, I find that the comparative convenience and expense for the witnesses is largely neutral in this matter. Kyko’s witnesses, including Mr. Kulkarni and Ms. Thomas, are in Ontario. Sanjay Asher, Ms. Batra and Yogesh Asher, are located in Mumbai. Mr. Rajappan and Mr. Sundar purportedly signed the Guarantee for Sical, but it is unknown if they are in India, Singapore or elsewhere. The Defendants may call others from Sical to testify, but do not know whether anyone at Sical has anything relevant to say and, if so, who or where they are. The Defendants may call a police witness from Chennai, located about 1,300 km from Mumbai, to testify about the forgery investigation. They also submit that Amit Punde, Kyko’s former representative in Pune, may be a witness, although Mr. Punde did not witness any relevant events and can only give second-hand information about the forgery investigation, which the police witness likely will address. As the Defendants gave little or no information as to what their witnesses will say, apart from Sanjay Asher and Ms. Batra, I am persuaded to treat their proposed list of witnesses with caution: Goldhar at para 57 . [52] Should a party or witness outside of Ontario not wish to travel to Brampton for any part of this proceeding, Kyko has undertaken to consent to their attendance by videoconferencing, which is how the parties conducted cross-examinations on the affidavits for this motion. The Defendants did not object to video testimony and led no evidence to suggest that any of its witnesses would not agree to testify by video. As a result, I find that video technology may offer a fair, convenient, and cost-effective way to obtain testimony from witnesses abroad at trial in Ontario: Davies v. Clarington , 2015 ONSC 7353 at paras 23-28. In contrast, there was no evidence of whether video evidence is permitted by the High Court of Bombay. [Emphasis added.] [36] The appellants argue that the motion judge relied on a passage in the decision of the motion judge in Goldhar that Côté J. overruled when the decision was appealed to the Supreme Court. She held at para. 67 that the motion judge had erred by unreasonably discounting [the defendant] Haaretz’s proposed witnesses and the relevance of their evidence. Haaretz had, in its factum, described what these 22 witnesses “may speak to” and had filed a supplemental affidavit briefly describing the evidence that 8 of the witnesses might give to assist it at trial. Goldhar had, in comparison, no evidence concerning the witnesses he might call and what those witnesses would speak to. [37] Côté J. described the motion judge’s error as involving “a complete misapprehension of, or failure to consider, material evidence” (at para. 50), and the motion judge’s conclusion regarding the comparative convenience and expense for the witnesses as “wholly unreasonable” in light of the evidence before him (at para. 55.) She concluded that this factor heavily favoured the forum proposed by the defendant (Israel). She also held that the motion judge erred in giving weight to the notion of having the Israeli witnesses (many of whom were reluctant) testify by videoconference, since there was no evidence that an Ontario court could compel them to do so. [38] The appellants argue that they, like the defendant Haaretz in Goldhar , provided a list of their proposed witnesses and a brief description of what some of them would speak to, and the motion judge therefore erred in treating their witness list “with caution”. They say this led the motion judge to erroneously conclude that the factor of comparative inconvenience for the witnesses was neutral. They submit that the motion judge’s error is not “saved” by his observation that videoconferencing may be an option for witnesses from outside of Ontario. They point to what they say are the inherent frailties of testifying by videoconference. [39] While the motion judge in this case erred in citing to the overruled passage in Goldhar , I am not persuaded that this warrants interference by this court. The appellants do not impugn any of the motion judge’s findings of fact in the passages reproduced above. The motion judge acknowledged that the appellants had provided information about what some of their witnesses (Mr. Asher and Ms. Batra) will say. Unlike Haaretz in Goldhar , however, Mr. Asher could not say what, if any relevant evidence the other witnesses might be able to provide. The motion judge in this case, therefore, unlike the motion judge in Goldhar , did not misapprehend the evidence and his conclusion was reasonable. His error in citing to Goldhar did not lead him to conclude that the factor of comparative inconvenience to witnesses was “largely neutral.” [40] Further, while I appreciate that there is a 9½-hour time difference between Ontario and Mumbai, the appellants have not demonstrated any error in principle concerning the motion judge’s observation that videoconferencing technology may offer a fair, convenient and cost-effective way to obtain testimony from witnesses abroad at trial in Ontario. It is open to an Ontario court to modify its usual sitting hours to better accommodate an out-of-country witness. Even before the COVID-19 pandemic made videoconferencing software ubiquitous, Canadian courts have considered the possibility of proceeding electronically as part of the forum non conveniens analysis: Tyco at para. 52; Henry Estate v. Henry , 2012 MBCA 4, 275 Man. R. (2d) 90, at paras. 54-57. The motion judge in this case did not fall into the error in Goldhar . Unlike Haaretz, the appellants did not adduce evidence that their witnesses in India would not testify voluntarily. The motion judge did not rely on videoconferencing to overcome the problem of foreign witnesses who are unwilling to testify, in the absence of evidence that those witnesses could be compelled in Ontario. (4) Did the motion judge fail to consider relevant factors in his forum non conveniens analysis? [41] The appellants argue that the motion judge erred in principle in his forum non conveniens analysis because he failed to consider the jurisdiction where the factual matters arose and the location of the evidence. [42] I am not persuaded that, in the context of this case, the fact that the motion judge did not specifically address these two factors in his reasons constitutes an error in principle or resulted in an unreasonable decision. [43] In Van Breda , LeBel J. wrote the following at paras. 105 and 110: A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns. Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focusses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient [T]he factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on the context and might include the locations of parties and witnesses, the cost of transferring the case to another jurisdiction or of declining the stay, the impact of a transfer on the conduct of the litigation or on related or parallel proceedings, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strengths of the connections of the two parties. [44] As discussed in more detail below, the motion judge’s reasons reflect that he considered and balanced the following six factors in his forum non conveniens analysis: the comparative convenience and expense to the parties and witnesses in litigating in Ontario or India; the law to be applied to the issues in the proceeding; the desirability of avoiding a multiplicity of proceedings; the desirability of avoiding conflicting decisions in different courts; the enforcement of an eventual judgment; and the fair and efficient working of the Canadian legal system as a whole. [45] The appellants assert that all the underlying conduct described in Kyko’s statement of claim occurred in India, and that the majority of the physical evidence is located in India. These two factors clearly favour India. When these factors are considered (as they should have been), Mumbai is clearly a more appropriate forum than Ontario. [46] While the opinion was prepared in India, the motion judge found that there was a good arguable case that the appellants’ legal opinion was first provided to Kyko in Ontario. Arrangements were made in Ontario to advance the credit facility, and Kyko suffered damages in Ontario. All the underlying conduct did not occur in India. [47] As to the significance of the physical evidence, on cross-examination, Mr. Asher admitted that he relied on only four documents in forming the opinion: the guarantee, the minutes of two board meetings of the guarantor relating to it, and the “memorandum articles of association” of the guarantor. He does not remember if he has ever seen the originals of the guarantee or minutes. The appellants do not identify any other documents that they say will be required in this case and are located in India. In assessing the comparative convenience to the parties and the witnesses, the motion judge considered that Mr. Asher is located in Mumbai. [48] In the context of this case, the factors that the appellants argue the motion judge should have considered are minor, and are largely subsumed by the motion judge’s analysis of the comparative convenience and expense to the parties and witnesses in litigating in Ontario or Mumbai. (5) Is the motion judge’s decision that the appellants had not discharged their burden to show that Mumbai was a clearly more appropriate forum unreasonable? [49] While noted above, for ease of reference, I repeat that the motion judge considered, and balanced, six factors in concluding that the appellants had not met the onus of showing India to be a clearly more appropriate forum for the action than Ontario: (1) the comparative convenience and expense for the parties to the proceeding and for their witnesses in litigating in Ontario or India; (2) the law to be applied to the issues in the proceeding; (3) the desirability of avoiding a multiplicity of proceedings; (4) the desirability of avoiding conflicting decisions in different courts; (5) the enforcement of an eventual judgment; and (6) the fair and efficient working of the Canadian legal system. [50] The motion judge found that the first four factors were neutral, the fifth factor favoured Mumbai, and the final factor favoured Ontario. As a result, he concluded that the appellants had not met the onus of showing India to be a clearly more appropriate forum than Ontario. [51] The appellants argue that the motion judge unreasonably concluded that the first four factors are neutral, and that the final factor favoured Ontario. They say these factors clearly favour India and, as a result, the motion judge’s conclusion that they had not met their onus of showing India to be a clearly more appropriate forum was unreasonable. Below, I address their arguments with respect to each of the challenged factors. As I will explain, the motion judge’s conclusions were reasonable. [52] As to the first factor (the comparative convenience and expense for the parties to the proceeding and for their witnesses in litigating in Ontario or in India), the appellants argue that, while an Ontario corporation, Kyko carries on business in India and was carrying on business in India in connection with and at the time it received the opinion and the vast majority of the witnesses are domiciled in India. They argue that, in light of this, the motion judge’s conclusion that the first factor is neutral was unreasonable. [53] I disagree. The motion judge noted that Kyko is situated in Brampton, Ontario and no longer has a business presence in India. Its CEO, Mr. Kulkarni, is based in Ontario and visits India infrequently. The motion judge did not fail to consider or misapprehend the evidence or make a clear and serious error of fact about Kyko’s business activities in India. In assessing the comparative convenience and expense to the parties, the motion judge reasonably focused on Kyko’s current situation, rather than what might have been its situation in the past. [54] Above, in addressing the third issue that the appellants raise on this appeal, I reproduce the motion judge’s analysis of the comparative convenience and expense for the witnesses. The motion judge did not find that the vast majority of the witnesses are domiciled in India. Further, his analysis reasonably considered more than the number of witnesses on each party’s list of proposed witnesses. His decision that this factor is neutral was reasonable. [55] The appellants argue that, at its core, this action is about whether an Indian lawyer met the expected standard of care of an Indian lawyer in providing the opinion and that is a matter of Indian law. Accordingly, they argue, the motion judge’s conclusion that both Indian and Ontario law are implicated in this case, and the second factor – applicable law – was therefore a neutral factor, was unreasonable. [56] The motion judge specifically considered that Indian law was implicated because of this standard of care issue. However, he accepted that Ontario law was also implicated because of Kyko’s position that the place of the tort is Ontario, where it received and acted on the allegedly negligent and fraudulent representation in the opinion, and that Kyko’s contract claim pleads a breach of contract made in Ontario. The motion judge did not accept that, at its core, this action is about professional negligence. [57] The motion judge’s conclusion that both Indian and Ontario law are implicated in this case and that applicable law is therefore a neutral factor is reasonable. [58] Turning to the third and fourth factors (desirability of avoiding a multiplicity of proceedings and conflicting decisions), the appellants say that given that the Madras High Court will consider whether the guarantee is a forgery, it would be “eminently reasonable” for the Madras High Court to also determine the issues raised in Kyko’s action. The motion judge’s conclusion that these factors were neutral is accordingly unreasonable. [59] I disagree. The motion judge specifically recognized that the Madras High Court is to consider whether the guarantee is a forgery, which will overlap with Kyko’s claims against the appellants. He noted, however, that neither party viewed the Madras High Court as an appropriate or convenient forum: the appellants submitted that the High Court of Bombay in Mumbai was the convenient forum. He held that there was no evidence on this motion to suggest that having this proceeding heard in Mumbai would lead to any ongoing efficiencies with the ongoing matter in the Madras High Court or mitigate the multiplicity of proceedings. There was no indication that the parties or claims in the matter before the Madras High Court could be consolidated with Kyko’s action against the appellants if it were heard before the High Court of Bombay and it seemed likely that the litigation in Chennai will continue as a separate proceeding, whether Kyko’s claim is heard in Mumbai or Ontario. Nor was there any suggestion that having Kyko’s claim heard in Mumbai would result in procedural efficiencies with litigation in Chennai by allowing common records, productions or other evidence to be shared in both proceedings, or by allowing any appeals from the proceeding to be joined or heard in tandem. Further, whichever court hears Kyko’s claim – whether in Ontario or Mumbai – will likely have to consider the risk of a conflicting decision in the Madras High Court proceedings. [60] On appeal, the appellants attempt to re-cast their position before the motion judge, submitting that the Madras High Court is the clearly more convenient forum. However, Mr. Asher’s evidence was that Kyko’s action should be heard in Bombay. The motion judge’s conclusion that the third and fourth factors are neutral is reasonable. [61] With respect to the sixth factor, the appellants argue that an Indian court is clearly in a better position to dispose fairly and efficiently of the litigation. Indeed, they say it is unfair to require an Indian law firm and lawyer who provided an opinion about the enforceability in India of a guarantee given by an Indian company to an Ontario company which carried on business in India to defend an action in Ontario arising out of their provision of that guarantee. They say this case is different from Sincies Chiementin S.p.A. (Trustee of) v. King , 2012 ONCA 653, leave to appeal refused, [2012] S.C.C.A. No. 516, on which the motion judge relied, in concluding that it was fair for the appellants to be called to account in Ontario. Mr. Asher is a lawyer in a regional law firm in India, not a lawyer who specializes in international business law like the lawyer in Sincies . Further, they say that the motion judge leant instinctively in favour of his own jurisdiction, which Van Breda , at para. 112, cautions against. [62] The motion judge instructed himself that, having regard to the case as a whole, he “must consider and balance the broader issues of fairness and efficiency of a particular forum with the justice of that choice to the parties”. He found himself unable to assess the juridical advantage factor, and the appellants do not fault that finding. [63] He concluded that overall fairness considerations favoured Ontario. In his view, this case was like Sincies because, like the lawyer in that case, the appellants “are sophisticated legal professionals who advised Kyko, an Ontario corporate client, knowing that it would receive and act upon the advice in the forum.” It would therefore be fair for the appellants to account for their conduct in Ontario. The motion judge held that the appellants had not shown that the High Court of Bombay would be a substantially less inconvenient and expensive forum. [64] In my view, that conclusion is reasonable. Whether or not Mr. Asher specialized in international business law, the appellants are one of India’s oldest law firms and a senior partner at that firm. As the motion judge found, they are sophisticated legal professionals who advised an Ontario corporation, and there was a good arguable case that the opinion was first provided to Kyko in Ontario and relied upon there. The motion judge’s analysis was rigorous and much more than an instinctive favouring of his own jurisdiction. Disposition [65] For these reasons, I would dismiss the appeal, with costs to Kyko in the all-inclusive amount of $20,000. Released: October 20, 2021 “PR” “Alexandra Hoy J.A.” “I agree. Paul Rouleau J.A.” “I agree. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ilgner v. Box, 2021 ONCA 747 DATE: 20211020 DOCKET: M52850 (C69621) Brown J.A. (Motion Judge) In the Matter of the Estate of Juliet Pitterson-Box, deceased BETWEEN Audrey Ilgner, personally and in her capacity as Estate Trustee of the Estate of Juliet Pitterson-Box Applicant/Moving Party (Responding Party/Respondent) and Blaze Box , Klay Box, Storm Box, Alburn Vidal (referred to as Alluin Didal in the Last Will and Testament of Juliet Pitterson-Box), Claudia Roseanne Soso and Nora Mazit Respondents ( Moving Party/ Appellant ) Blaze Box, acting in person Jonathon Kappy and Stuart Clark, for the responding party Heard: October 12, 2021 by video conference ENDORSEMENT [1] The moving party appellant, Mr. Blaze Box, has filed a notice of appeal from the order made by Conway J. dated June 3, 2021 (the “Third Conway Order”). Mr. Box has not yet perfected his appeal. [2] Mr. Box moves for an order: (i) granting him an extension of time until December 31, 2021 to perfect his appeal; (ii) requiring the estate trustee, his grandmother Audrey Ilgner, to release to him all draft copies of the will of his late mother, Juliet Pitterson-Box, her medical records and any insurance documents (the “Document Requests”); (iii) putting in place a process that would enable him to pay out his two siblings’ share of the estate from a mortgage he wishes to place on the main estate asset, a residential property at 352 Dupont Street, Toronto (the “Property”), which he presently occupies; and (iv) staying the Third Conway Order that ordered him to vacate the Property and granted leave to issue a writ of possession to the estate trustee in respect of the Property. [3] Ms. Pitterson-Box died on June 18, 2019. At the time of her death, she had three adult children: the appellant, Klay Box, and Storm Box. [4] The deceased’s Will dated February 12, 2019 (the “Will”) appointed her mother, Ms. Ilgner, as estate trustee. The Will provides for several bequests totaling $150,000, with the residue to be divided equally amongst the deceased’s three children. [5] In January 2020, Blaze and Klay Box filed a notice of objection in respect of the Will in which they asserted that their mother wanted to maintain the Property as the family home with the three children as beneficiaries. The siblings contended that the estate trustee was not acting in the best interests of the beneficiaries and asserted that the failure of the Will to include a bequest to one of their mother’s friends indicated that her wishes “seemed to be ignored/tampered with and/or changed through suspicions + questionable circumstances.” The objectors did not assert the existence of an alternate will. [6] The Property is the main estate asset. [7] Mr. Box has resided at the Property at least since his mother’s death. He is, in effect, treating the Property as his own, renting out some of the rooms and making some renovations. [8] By notice of application issued October 13, 2020, the estate trustee sought various relief, including orders striking out the notice of objection, restraining the three children from effecting any capital improvements or renovations to the Property, requiring the children to account for any rental income they had received for the Property, and directing the children to provide vacant possession of the Property. Blaze and Klay Box filed a notice of appearance in the application. [9] On November 9, 2020, Conway J. made her first order (the “First Conway Order”). It directed Blaze and Klay to desist from further renovations and account for their dealing with the Property. Mr. Blaze Box did not participate in that hearing. [10] Mr. Box contends that he did not participate in many of the hearings because he was not given notice of them and was not properly served with court materials.  The record contradicts his assertion. There is no doubt that Mr. Box uses the email address to which the various affidavits of service state the court materials were sent. Emails from him dating back to April 1, 2020 attest to that fact. Mr. Box contends that during the pandemic he did not check his email with great frequency. Whether or not that is true, it does not detract from the propriety of service of various court materials to his email address, as well, on occasion, to the Property, where he lives. [11] No appeal was taken from the First Conway Order. [12] The record shows that Mr. Box ignored the First Conway Order. That led to the second order (the “Second Conway Order”) dated December 16, 2020, which struck out the notice of objection filed by Blaze and Klay without leave to amend, directed the issuance of a certificate of appointment of estate trustee to Ms. Ilgner, and directed Blaze and Klay to comply with the First Conway Order. [13] No appeal was taken from the Second Conway Order. [14] In late May 2021, the estate trustee moved for an order requiring Mr. Box to vacate the Property and seeking leave to issue a writ of possession. The Third Conway Order, dated June 3, 2021, ordered Mr. Box to vacate the Property by July 3, 2021, failing which a writ of possession could issue. [15] Mr. Box remains in the Property. [16] On July 7, 2021, Mr. Box filed a notice of appeal from the Third Conway Order. [17] To date, Mr. Box has not filed any materials to perfect his appeal, notwithstanding the court’s issuance on August 16, 2021 of a notice of intention to dismiss for delay if the appeal was not perfected by September 13, 2021. [18] Instead, Mr. Box seeks an extension, until the end of this year, to perfect his appeal. [19] I start my consideration of his request for an extension with the observation that while the appellant’s delay in perfecting his appeal is not unduly long, he offers no reasonable explanation about why there was any delay, given that the proceeding before Conway J. in June 2021 was a motion based on a written record. The subsequent variation of the Third Conway Order in September 2021 to include the Property’s legal description and PIN number would not prevent Mr. Box from perfecting his appeal. The record strongly suggests that Mr. Box believes he can live on in the estate’s Property for as long as he wishes and disregard the terms of his mother’s Will and the efforts of his grandmother to administer the estate. His motion for an extension of time to perfect until the end of this year strikes me as a continuation of that pattern of conduct. [20] As to the merits of his appeal of the Third Conway Order, I see no meritorious grounds of appeal: Chuang v. Royal College of Dental Surgeons of Ontario (2005), 77 O.R. (3d) 280 (Div. Ct.), at para. 3. No appeal was taken from the Second Conway Order that struck out the notice of objection and directed the issuance of a certificate of appointment of estate trustee. Given the lack of an appeal, the Will must be taken as proved. Therefore, the Document Requests sought by Mr. Box are no longer relevant. [21] The Will does not grant Mr. Box a proprietary interest in the Property; his interest is in the residue of the estate following the realization of the estate’s assets. Accordingly, there is no legal basis for his position that he should be allowed to somehow take title to the Property, mortgage it, and pay out his siblings’ shares of the residue. It also follows that there is no legal basis for Mr. Box to remain in the Property, which is the estate’s asset. [22] Since the Property is the main estate asset, any continuing delay would prejudice the estate and the other beneficiaries of the estate. [23] In sum, the justice of the case works against granting the relief requested by Mr. Box. Instead, the justice of the case requires the administration of the estate to proceed without further efforts by Mr. Box to delay the estate trustee. [24] For those reasons, the motion is dismissed. [25] The respondent estate trustee is entitled to her partial indemnity costs of this motion fixed in the amount of $10,000.00, inclusive of disbursements and applicable taxes, payable out of the residuary interest of Mr. Blaze Box in the Estate of Juliet Pitterson-Box. “David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Eden, 2021 ONCA 733 DATE: 20211020 DOCKET: C68564 Paciocco, Nordheimer and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Brooke Eden Appellant Jessica Zita, for the appellant Katie Doherty, for the respondent Heard:  October 13, 2021 by videoconference On appeal from the conviction entered on June 21, 2019 and the sentence imposed on February 7, 2020 by Justice Joseph Nadel of the Ontario Court of Justice. REASONS FOR DECISION [1] Ms. Eden appeals from her convictions for Impaired Operation Causing Death, Impaired Operation Causing Bodily Harm, and Failing to Remain, for which she received a global sentence of five years. The appellant also seeks leave to appeal the sentence. [2] The basic facts are that the appellant was operating her mother’s motor vehicle when she collided with a vehicle ahead of her that had stopped at an intersection. The appellant’s vehicle careened off the vehicle that she hit, moved into the opposite lane, and struck a motorcycle heading in the opposite direction. The driver of the motorcycle was killed, and his passenger was seriously injured. [3] The appellant fled on foot from the accident. She was arrested a short time later about two kilometres from the accident. The arresting officer noticed the odour of alcohol on the appellant’s breath and that her eyes were bloodshot. Subsequent Intoxilyzer readings, extrapolated by an expert for the passage of time, put the appellant’s blood alcohol readings at the time of the accident in a range between 70 milligrams to 135 milligrams of alcohol per 100 millilitres of blood. An analysis of information from the vehicle, that the appellant had been operating, established that the speed of the vehicle just before the accident was 113 to 114 kph. The posted speed limit on the road was 80 kph. [4] The appellant pled guilty to the offences. However, there was an issue regarding her mental health and fitness. The trial judge inquired about these matters at the time of the plea and was told that a fitness assessment had recently been conducted and that the appellant had been found to be fit. The trial judge was also told by the appellant’s counsel that he had conducted a full plea inquiry and that he had reviewed the agreed facts with her. The appellant then entered a plea of guilty to each of the three offences. [5] While the appellant was represented at the time of her guilty plea, by the time of sentencing, she had fired her lawyer and was unrepresented. The appellant said that she wanted to proceed with sentencing without a lawyer. The trial judge cautioned the appellant against proceeding without a lawyer, but the appellant insisted. [6] The trial judge explained the process to the appellant. He then heard the Crown’s submissions on sentence and heard the victim impact statements. The trial judge adjourned the matter for two months so that the appellant could have more time to prepare her submissions. [7] The appellant then brought a number of “motions”, the significant one of which was a motion that appeared to seek to strike the guilty plea. The judge conducted a hearing on that motion, that included hearing from the appellant’s former counsel. He dismissed the motion as he did not find a basis for any suggestion that the plea had been involuntary or uninformed. In particular, the appellant asserted that she had pled guilty under duress, but the trial judge found that there was no evidence to support that assertion. [8] The matter proceeded to sentencing. After hearing submissions from the appellant, the judge imposed a global sentence of five years: four years on the impaired operation causing death conviction; one year concurrent on the impaired operation causing bodily harm conviction; and one year consecutive for the fail to remain conviction. [9] The appellant has failed to identify any legal error in the trial judge’s reasons for rejecting the motion to strike the guilty plea. More particularly, the appellant has failed to demonstrate any error in the trial judge’s conclusion that the plea was neither involuntary nor uninformed. We do not accept that the conduct of the appellant after the guilty plea provides any reliable evidence as to the appellant’s understanding of the events at the time that the guilty pleas were entered which, we would reiterate, occurred when she was represented and had been found fit to stand trial. Put simply, it is not sufficient to set aside a guilty plea on the basis that the accused has simply changed their mind after the fact. [10] In terms of the sentence appeal, the sentencing hearing was conducted fairly. The trial judge confirmed repeatedly that the appellant wished to represent herself and ensured that she understood the process, the law and the Crown’s arguments. The trial judge was not required to adjourn matters, nor to appoint amicus . The sentence imposed by the trial judge was entirely warranted by the facts of the case and the appellant’s prior driving record. In terms of the complaint that the trial judge did not provide any Downes credit, that is a matter of discretion for the trial judge. The appellant has failed to show any basis for us to interfere with his exercise of that discretion. In saying that, we would note that the subject and terms of the bail were negotiated between counsel in a situation where the appellant’s entitlement to bail, given her breaches of prior bail orders, was certainly a live issue. We also note that the bail terms imposed did not represent the most onerous form of house arrest. [11] The conviction appeal is dismissed. While leave to appeal sentence is granted, the appeal is dismissed. “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hevey v. Hevey, 2021 ONCA 740 DATE: 20211021 DOCKET: C68436 Feldman, Harvison Young and Thorburn JJ.A. BETWEEN Lynne Marie Hevey Applicant (Appellant) and Charles James Hevey Respondent (Respondent) Gary S. Joseph and Stephen P. Kirby, for the appellant Bryan R.G. Smith and Sarah Conlin, for the respondent Heard: April 14, 2021 by video conference On appeal from the order of Justice Jonathon C. George of the of the Superior Court of Justice, dated May 27, 2020, with reasons reported at 2020 ONSC 3307. Harvison Young J.A.: [1] The appellant, Lynne Hevey, appeals from an order granting summary judgment to the respondent, Charles Hevey, dismissing her application for equalization and other relief. At the time of her application, the parties had been divorced for more than 10 years. The dispute arises out of a complex financial arrangement. [2] Ms. Hevey claimed in her application to have recently discovered that Mr. Hevey had misrepresented material facts and failed to make significant disclosure at the time of the divorce application in 2008. In particular, she claimed Mr. Hevey had represented to banks that his net worth was approximately $21 million at the same time that he stated in a sworn financial statement that his total assets amounted to $0. At the time, the parties did not pursue equalization or spousal support. In his summary judgment motion, Mr. Hevey relied heavily on his submission that the parties had agreed not to pursue either, although there was no written agreement not to pursue equalization or spousal support. He also argued that Ms. Hevey’s claim for equalization was barred by s. 7(3) of the Family Law Act , R.S.O. 1990, c. F.3 [“ FLA ”]. [3] The heart of the appeal is Ms. Hevey’s assertion that this was not an appropriate case for summary judgment. For the following reasons, I would allow the appeal and order that the matter be remitted for trial. A. Background [4] The appellant, Ms. Hevey, and the respondent, Mr. Hevey, married in 1980, separated in 2006, divorced in 2008, and have two adult sons. They negotiated the issues arising from their separation in 2008 and did not pursue equalization, although the surrounding circumstances form part of the subject of this appeal. Both parties were represented by counsel at the time. [5] In 2019, Ms. Hevey brought an application for equalization and spousal support, alleging that Mr. Hevey had misrepresented his financial circumstances during their negotiations. [6] In her application, Ms. Hevey claimed to have recently discovered the misrepresentation when Mr. Hevey, who is a real estate developer, sold one of the family’s commercial properties in April 2019 for over $16 million. During the disposition of the property, Ms. Hevey, through her commercial counsel, received documents that disclosed a trust arrangement involving PMP Trust, of which Mr. Hevey was the sole beneficiary. Ms. Hevey then discovered the alleged misrepresentation: while Mr. Hevey’s financial statement sworn in December 2008 indicated a net family property value of $0, he was actually worth more than $21 million between 2007 and May 2008, based on his disclosure to a bank. [7] The relevant background to the family arrangements pre-separation may be briefly summarized. In 1986 and 1996, two family trusts were created which held various assets. Ms. Hevey was the trustee of both family trusts and Mr. and Ms. Hevey’s two sons were the beneficiaries. In 2006, the assets of those family trusts were transferred to three new numbered companies due to the pending expiry of the 21-year period from the date of creation of one of the family trusts. There is no dispute that this was required by tax laws. The dispute arises from the corporate arrangements established, into which the trust assets were transferred. [8] Ms. Hevey and Mr. and Ms. Hevey’s two sons owned special or preferential shares in the three numbered companies. However, PMP Trust, of which Mr. Hevey was the sole beneficiary, owned the only common, or “growth” share, in each of the three numbered companies. According to Ms. Hevey, Mr. Hevey thereby was the beneficiary of all the family assets, except for one half interest in the matrimonial home. She notes that when she raised Mr. Hevey’s interest in PMP trust through counsel in July 2009, Mr. Hevey emailed her stating that her “lawyers [ sic ] concern about PMP trust is without merit, as the one common share held by PMP has absolutely no value” and that “[t]he boys control the corporation.” Ms. Hevey claims that she relied on Mr. Hevey’s representations about his financial situation and his representations that he was making all efforts to ensure she and the children benefited from the family assets. [9] In response to Ms. Hevey’s application for equalization and spousal support, Mr. Hevey brought a motion for summary judgment under r. 16 of the Family Law Rules , O. Reg. 114/99 [ FLR ], dismissing Ms. Hevey’s application. He argued that the limitation period set out in s. 7(3) of the FLA had long expired and that he and Ms. Hevey had agreed not to pursue equalization or spousal support at the time of their divorce. The test, summarized by this court in Ramdial v. Davis , 2015 ONCA 726, 68 R.F.L. (7th) 287, at paras. 27-31, required the motion judge to ascertain whether there was a genuine issue for trial. At the time Mr. Hevey brought the motion, he had not filed an answer to Ms. Hevey’s application or a financial statement as required by the FLR . B. Issues on Appeal [10] The issues are whether the motion judge erred by · allowing Mr. Hevey’s motion for summary judgment when Mr. Hevey had not served an answer as required by r. 16 of the FLR ; and · misinterpreting and misapplying s. 2(8) of the FLA . C. Decision Below [11] The motion judge granted summary judgment against Ms. Hevey, dismissing her application. Before addressing the motion directly, he spoke to Ms. Hevey’s argument that he did not have the authority to consider the motion when Mr. Hevey had not yet filed an answer and financial statement as required by r. 16(1) of the FLR . The motion judge referred to an endorsement from September 12, 2019, which stated that Mr. Hevey was not required to file an answer or sworn financial statement pending determination of the summary judgment motion. Citing Ms. Hevey’s counsel’s lack of concern with that endorsement and his conduct afterward, he found that the parties had agreed to proceed without the filing of an answer. [12] The motion judge noted that, in any event, the primary objective of the rules was to ensure the court can deal with cases justly and to mandate a process that is fair, efficient, and appropriate given the importance and complexity of the issues. He stated that an answer would have done little to enhance Mr. Hevey’s position and that the record was sufficient to deal with the merits of the motion. The motion judge was puzzled as to why Ms. Hevey, if she had procedural concerns before, did not raise them prior to consenting to the timetables and foregoing cross-examinations. [13] Proceeding to the merits of the motion, the motion judge noted that Ms. Hevey’s claim for equalization was statute-barred under s. 7(3) of the FLA . To revisit the issue of equalization, Ms. Hevey needed to satisfy the conditions under s. 2(8) of the FLA , which permits the court to extend a time prescribed by the FLA if it is satisfied that there are apparent grounds for relief, relief is available because of delay that has been incurred in good faith, and no person will suffer substantial prejudice by reason of delay. [14] The test for summary judgment is whether there is a genuine issue requiring a trial: Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87. [15] The motion judge considered the evidence before him, which was that the equalization claim was statute-barred; the parties were represented by experienced counsel when they decided to forego equalization; financial disclosure was exchanged in relation to that decision; Ms. Hevey was a savvy business-person and had run her own family company for years; Ms. Hevey had access to her own accounting and legal professionals; Ms. Hevey was directly involved with and had knowledge of Mr. Hevey’s finances and that of the trusts; and the correspondence from 2008-2009 during their negotiations addressed the issues Ms. Hevey now raised. The motion judge found no evidence of an intention to mislead, no evidence of fraud, and no evidence that Mr. Hevey acted in bad faith. He also found that the documents Ms. Hevey relied on lacked context and could not be fully attributed. The motion judge observed that the parties settled their affairs, motived by a desire for finality so that they could move on with their lives. [16] Lastly, the motion judge addressed the issue of spousal support. The parties made only limited submissions on spousal support and, in any case, those issues had been settled over 10 years earlier and there was no evidence of fraud. The motion judge concluded that there was no genuine issue requiring a trial. D. Discussion [17] For reasons that follow, I would allow the appeal. [18] As Iacobucci and Major J.J., writing for the majority, noted in Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, the standard of review on a pure question of law is correctness: at para. 8. Questions of mixed fact and law, which involve applying a legal standard to a set of facts and which lie along a spectrum, are usually subject to the more stringent standard of palpable and overriding error: Housen , at paras. 26, 36-37. [19] Here, the motion judge fell into reversible error by permitting the respondent to proceed with his summary judgment motion despite not having filed an answer to the appellant’s application as required by r. 16 of the FLR . In addition, he fell into error by misinterpreting and misapplying s. 2(8) of the FLA , which sets out the conditions to be applied by the court in considering whether an extension of time prescribed by the FLA should be granted. (1) Did the motion judge err by allowing the summary judgment motion to proceed in the absence of an answer? [20] Given the language of r. 16 of the FLR and the importance of disclosure in family law and in light of the opacity of Mr. Hevey’s financial arrangements, the motion judge made a palpable and overriding error in concluding that an answer was not required before proceeding with the summary judgment motion. [21] Summary judgment is governed by r. 16 of the FLR . [22] Rule 16(1) specifically provides that summary judgment is available after the respondent has served an answer: WHEN AVAILABLE 16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. [23] The appellant says that this rule is mandatory and that the appeal should be allowed on this basis alone. The respondent states that the appellant’s counsel did not raise any concerns about the motion judge’s order dispensing with the requirement that the respondent file an answer prior to the hearing of the summary judgment motion. In his reasons, the motion judge made a similar comment, stating that “[a]s I recall it, Applicant[’s] counsel did not object to this nor did he raise any concerns”. [24] The appellant’s concern was, however, raised before the motion judge at the scheduling hearing. In response to a question from the motion judge as to whether granting an order dispensing with the request to file an answer before the summary judgment hearing would prejudice Ms. Hevey, the appellant’s lawyer stated that he was not agreeing to such an order but that it should be left to the judge hearing the summary judgment motion. The motion judge wrote an endorsement dispensing with the requirement that Mr. Hevey file an answer and financial statement, and the summary judgment hearing proceeded on March 6, 2020, on that basis. [25] With respect, the motion judge erred in permitting the summary judgment motion to proceed to hearing in the absence of an answer and financial statement from Mr. Hevey. [26] As this court held in Frick v. Frick , 2016 ONCA 799, 132 O.R. (3d) 321, at para. 11, “[t]he Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation…They embody a philosophy peculiar to a lawsuit that involves a family.” Part of that philosophy is the recognition that “[t]he most basic obligation in family law is the duty to disclose financial information”: Roberts v. Roberts , 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11. [27] Here, the appellant’s position was that she had received inadequate disclosure initially. She put forward some evidence to substantiate her claim – in particular, the roughly contemporaneous $0 sworn net family property statement and the May 2008 bank disclosure asserting that the respondent had assets in excess of $21 million, which she stated she never saw until 2019. [28] Mr. Hevey insists that, as a sophisticated business woman who ran her own business, had been a trustee of the trusts, and was a preferential non-voting shareholder in one of the companies, Ms. Hevey understood exactly how his financial affairs were managed and what his interests were at the time. He says she also knew that his net worth vacillated as he bought and sold properties, and, in addition, that times were especially bad in December 2008 following the financial crash in the fall of 2008. [29] In my view, and without deciding whether an answer is always needed, an answer was needed here as required by the rules. Specifically, the answer would have been accompanied by a new sworn financial statement upon which Mr. Hevey could have been cross-examined. Cross-examinations, particularly about the nature of the respondent’s interest in the PNP trust could in fact be very helpful in this case. In their absence, the respondent’s affidavits could rely upon the complexity of the corporate arrangements and the PNP trust to skirt what might be, and might have been, a significant beneficial interest. For example, a cross examination on a financial statement might include a question such as “Despite not being a shareholder, have you received any benefit in any form from the trust, which holds your common shares in the corporations?” At the same time, the motion judge may have been inferring from the fact that neither party sought to cross-examine the other on the sworn affidavits that were in evidence that there would also not have been cross-examinations on a sworn financial statement. [30] The requirement for both parties to provide financial statements at the outset is closely related to the importance of disclosure in family law proceedings, a particularly salient principle in the present case. This court has repeatedly emphasized this point in recent years, and it has been recently emphasized in the Supreme Court of Canada decision in Colucci v. Colucci , 2021 SCC 24, 458 D.L.R. (4th) 183 . [31] While the respondent argues that the appellant “waived” equalization, the record suggests that she merely did not pursue it at that time. There was no written waiver or domestic contract. In support of his argument that the appellant was sophisticated, knew all the arrangements, and had access to all the financial information, the respondent provided a letter. This letter dated December 17, 2008, from his lawyer Donald Kilpatrick to Ms. Hevey’s lawyer, sets out the general structure of the family assets and the roll-over of the trust assets to the three numbered companies. It also mentions that Mr. Hevey was not a shareholder of any of the companies, going on to state that PNP trust did own a common share in each one and that “Mr. Hevey is the beneficiary of the PNP trust”. [32] The evidence about what Ms. Hevey understood about the new corporate structure into which the trust assets were moved is very conflicting. Mr. Hevey states that she had open access to Brian Chapman, the commercial lawyer who made the arrangements. Ms. Hevey states that at one point Mr. Hevey called her and said, “I don’t have anything but if you don’t believe me then talk to Brian Chapman.” She also states that she never had independent legal advice on these issues and that Mr. Chapman was effectively Mr. Hevey’s own commercial lawyer. She also points to other contemporary correspondence she learned about later suggesting that while Mr. Hevey was being kept “out of the limelight”, he was retaining the control of the companies. [33] Against this backdrop is the May 2008 statement to a bank in which Mr. Hevey disclosed assets of approximately $21 million. There may well be good explanations for the disparity between this amount, the $0 amount on his December 2008 financial statement, and the fact that he did not disclose any beneficial interest in PNP or any other corporate interests. In the absence of an answer and sworn financial statement, Ms. Hevey was at a significant disadvantage in the course of this summary judgment motion where she was required to put her best foot forward. [34] Suggesting that she could have cross-examined Mr. Hevey misses the mark. It is up to the party with the assets to make the disclosure and the valuation of assets. According to the Ontario family law regime, and as already stated, financial disclosure is a paramount consideration. That also applies to a summary judgment motion such as this one. Moreover, it is not up to the claimant to “ferret out” information, as the appellant put it, about income and assets from the other party . Although, in Colucci , the Supreme Court was dealing with retroactive child support, the same imperatives apply when dealing with issues of retroactive spousal support, namely that courts must encourage proactive financial disclosure and in no way reward those who improperly withhold, hide or misrepresent information they ought to have shared: at para. 54. [35] There is nothing in the record that presents any valuation of the common shares of any of the companies at the time of Mr. Hevey’s December 2008 financial statement. Nor is there anything in his financial statement that disclosed his beneficial interest in the three companies. [36] A continuing theme in Mr. Kilpatrick’s letter was that the respondent was considering claiming equalization and spousal support from the appellant. This suggests that her understanding at the time was that Mr. Hevey had little or nothing in the way of assets and that she decided to not pursue any claims to pre-empt him from claiming anything from her. There is nothing in the record to indicate that Mr. Hevey had produced any valuation of his beneficial interest in the PNP trust at the time. Ms. Hevey’s evidence is that he had not, and that she did not understand the nature of his interests in the companies. [37] In short, in my view, the motion judge fell into palpable and overriding error in dispensing with the requirement that the respondent file an answer and financial statement, as required by r. 16 of the FLR , before proceeding with a summary judgment motion in these circumstances. (2) Did the motion judge err in interpreting and applying s. 2(8) of the FLA ? [38] The motion judge reasoned that summary judgment was available to dismiss the appellant’s claims largely because the limitation period for equalization claims set in the FLA had long expired. [39] Section 2(8) of the FLA provides: The court may, on motion, extend a time prescribed by this Act if it is satisfied that, (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay. [40] Each of the requirements must be met as a pre-condition to granting the relief: Vivier v. Vivier , 5 R.F.L. (3d) 450 (Ont. Dist. Ct.). The “relief” is not the extension of time but the relief claimed under the FLA such as equalization: Scherer v. Scherer (2002), 59 O.R. (3d) 393 (Ont. C.A.), at para. 16. In determining whether “apparent grounds for relief” exist, the court may make a limited inquiry into the merits of the proposed claim. The question to be answered is “[b]ut for the limitation period that acts as a bar, are there apparent grounds to support the claim?”: see Werth v. Werth , 2004 ONCJ 43, at para. 14. The relief must be unavailable because of a delay that has been incurred in good faith. The “good faith” requirement requires the applicant for an extension to show that they acted “honestly and with no ulterior motive”: Hart v. Hart (1990), 27 R.F.L. (3d) 419 (Ont. U.F.C.), at p. 432. Lastly, it must be demonstrated that no person will suffer substantial prejudice by reason of the delay. The mere showing of prejudice is not sufficient; rather, it must be demonstrated that the prejudice will be substantial. Generally, the length of time occasioned by the delay is a factor, along with the extent to which the responding party has rearranged their financial affairs: see e.g., Douthwaite v. Douthwaite (1997), 32 R.F.L. (4th) 90 (Ont. Gen. Div.). [41] With respect, the motion judge’s reasons do not interpret and apply s. 2(8) of the FLA correctly. [42] First, the motion judge erred in his interpretation of s. 2(8)(b), which refers to the delay “incurred in good faith”. This clearly refers to the delay occasioned by the party claiming the extension: Hart , at p. 432. However, the motion judge appears to have focussed on whether the appellant had established “fraud” on the part of the respondent. At para. 10, he notes: More than that, however, [namely, the fact that she was “at the relevant time, in the loop so to speak and kept up to speed on all issues relating to the trusts”] while recognizing that limitation periods can be extended and that an established fraud would indeed allow one to revisit these issues .[Emphasis added]. [43] This articulation holds the appellant up to a higher standard for revisiting the limitation period than s. 2(8) sets out. Specifically, while s. 2(8) only requires apparent grounds for relief, unavailability of relief because of delay that has been incurred in good faith, and no substantial prejudice, the motion judge’s statement at para. 10 suggests that he was holding the appellant to a standard of “established fraud” before revisiting the limitation period question. There is no authority to support that interpretation, and it is not consistent with the clear wording of the provision. [44] Second, the motion judge fell into palpable and overriding error in inferring that Ms. Hevey knew or ought to have known all information about the trusts and the corporations. [45] The appellant’s evidence explaining the delay is that she began her claim after receiving information in 2019 indicating that the respondent had been in a much stronger financial position in the period leading up to the application for divorce than he had led her to believe. If true, this explains her delay. As I have indicated earlier in these reasons, the appellant was not in a position to “put her best foot forward” in the summary judgment motion because Mr. Hevey had not filed an answer and financial statement. [46] A related concern is the motion judge’s inference, as argued by the respondent both below and in this court, that because the appellant had book-keeping experience and access to some (though not all) of the trust information, she understood the complexity and consequences of the corporate and trust arrangements. In my view, it was unfair to infer that the appellant did understand all this at the time. She does not appear to have received independent legal advice concerning the structure of the new corporations and the PNP trust, although she was represented by an experienced family lawyer. Again, given the absence of a clear written agreement between the parties, the record before this court might have supported the inference that she did not understand the arrangements, whether as a result of a lack of disclosure, misrepresentation, or other factors. As already mentioned, the record includes the letter from Mr. Kilpatrick referred to above clearly indicating that Mr. Hevey was considering claiming spousal support and equalization from Ms. Hevey as well as the evidence of the discrepancy between the $0 on the respondent’s net family property statement and the bank statement earlier in 2008 that his net worth was $21 million. [47] These determinations relate both to the explanation for Mr. Hevey’s delay and to her good faith and could not be made on a summary judgment motion, at least in the absence of an answer by the respondent, which undermined her ability to put her best foot forward. [48] Finally, this was not simply a claim for equalization but also a claim for spousal support which is not subject to the same limitation period. There is no discussion of this point. It may well be that Ms. Hevey’s claim for spousal support would not be strong. That said, the circumstances of disclosure in December 2008 and the question as to whether the respondent did mislead the appellant are material issues that would be very relevant to whether Ms. Hevey could have been entitled to spousal support. That could not be determined in this summary judgment motion. E. Disposition [49] For the foregoing reasons, I would allow the appeal and remit the matter to trial, without prejudice to the right of the parties to bring a fresh motion for summary judgment in accordance with these reasons. Costs are payable by the respondent to the appellant for this appeal in the amount of $15,000. Released: October 21, 2021 “K.F.” “Harvison Young J.A.” “I agree. K. Feldman J.A.” “I agree. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Robertson (Re), 2021 ONCA 737 DATE: 20211021 DOCKET: C69116 Paciocco, Nordheimer and Thorburn JJ.A. IN THE MATTER OF: James Robertson AN APPEAL UNDER PART XX.1 OF THE CODE James Robertson, acting in person Mercedes Perez, appearing as amicus curiae Molly Flanagan, for the respondent, Attorney General of Ontario James P. Thomson and Julia Lefebvre, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care Heard: October 15, 2021 by video conference On appeal from the disposition of the Ontario Review Board, dated October 22, 2020, with reasons dated November 13, 2020. REASONS FOR DECISION [1] Mr. Robertson appeals from the disposition of the Ontario Review Board that continued the detention order against him. The appellant submits that the Board erred in not awarding an absolute discharge. In the alternative, the appellant submits that the Board erred in not allowing him to transfer to a less secure psychiatric facility. For the following reasons, the appeal is dismissed. [2] The appellant has been under the auspices of the Board since October 2007 when he was found not criminally responsible (“NCR”) with respect to offences of criminal harassment and invitation to sexual touching. [3] At this most recent review, the Board found that the appellant continues to pose a significant threat to the safety of the public. There was a solid evidentiary foundation for that conclusion. Indeed, all of the expert evidence before the Board supported that conclusion. Given this solid evidentiary foundation, it was reasonable for the Board to have concluded that the appellant remains a significant threat to the safety of the public. This is sufficient to dispose of the request for an absolute discharge. [4] The Board heard from the appellant’s attending physician. It is fair to say that, while the concerns regarding the conduct of the appellant were originally based in inappropriate sexual contact, those concerns have largely ameliorated as the appellant has grown older. The appellant is currently sixty-six years old. However, concerns regarding the appellant’s generally aggressive and threatening behaviour continue. The appellant’s psychiatrist testified before the Board that, as recently as the weekend before, the appellant had threatened staff. [5] The Board also heard from Dr. Phillip Klassen, who had been retained to provide an independent psychiatric assessment. Dr. Klassen’s assessment was limited, however, as the appellant refused to meet with him. Nevertheless, based on a review of the appellant’s history, Dr. Klassen agreed that the appellant continues to pose a significant threat. Dr. Klassen assessed the appellant as having a high risk of general/violent recidivism. Of importance to the appellant’s request to transfer to a less secure psychiatric facility, Dr. Klassen said that, given the appellant’s past conduct, especially his conduct towards females, it made sense for the appellant to remain on an all-male unit. That requirement restricts the psychiatric facilities to which the appellant could be transferred as not all such facilities have all-male units. [6] Dr. Klassen also noted that he was unable to determine to what degree the appellant’s ongoing aggressive conduct is related to his unhappiness with being at Waypoint, as opposed to his high score on the appraisal test for recidivism. The appellant views his continued detention at Waypoint as being an injustice. [7] The Board concluded that this was not the appropriate time to consider allowing the appellant to transfer to a less secure psychiatric facility. In particular, the Board declined to allow the appellant to transfer to the two facilities that he proposed because neither of those facilities has an all-male unit. [8] The Board acknowledged the positive strides that the appellant had made in the last year. However, the Board concluded that the appellant should remain at Waypoint to determine if those positive strides will continue. The Board appears to be alert to the concerns that arise from the appellant’s continued detention at Waypoint as a high security facility and also appears to be open to a transfer to a less secure facility, in the future, if the appellant continues to improve. [9] Given the evidence, and the ongoing conduct of the appellant, the Board’s conclusion was a reasonable one. It is entitled to deference from this court. We have no basis to interfere with it, especially since the Board is alive to the concerns about the appellant’s continued detention at Waypoint and to the possibility of a transfer in the future. Also, the appellant’s increasing age will be a factor in determining whether his aggressive behaviour remains a concern. [10] Before concluding, we address two other points. One is the appellant’s reliance on the Universal Declaration of Human Rights , G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), s. 5, s. 8 and the oath of Queen Elizabeth II. As important as these documents are, the principles they describe do not govern this appeal. The provisions of Part XX.1 of the Criminal Code set out the law that must be applied, and the Board decision properly applies those provisions. Nor has the appellant satisfied us that any provisions of the Canadian Charter of Rights and Freedoms have been violated. [11] The other is the attempt by the appellant to file what he called fresh evidence. While we have looked at the material that the appellant filed in this regard, we have not considered that material in coming to our conclusion. The “will say” statements set out in that material are not “evidence”. They are hearsay. The appellant’s last-minute request to have unidentified witnesses testify for the first time on appeal came too late. More importantly, the issue before us relates to the reasonableness of the Board’s decision. The reasonableness of that decision must be judged based on the evidence that was before the Board at the time. Therefore, the material offered does not satisfy the well-established requirements for admission as fresh evidence: Palmer v. The Queen , [1980] 1 S.C.R. 759. [12] The appeal is dismissed. “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Foxgate Developments Inc. v. Jane Doe, 2021 ONCA 745 DATE: 20211006 DOCKET: M52714, M52762 & M52781 (C68873) Coroza J.A. (Motion Judge) BETWEEN Foxgate Developments Inc. Plaintiff (Respondent/Responding Party) and Jane Doe, John Doe, Skyler Williams , or any agent or person acting under their instructions, and other persons unknown, and the Corporation of Haldimand County Defendants ( Appellant / Respondent / Responding Party ) and Attorney General of Canada and Her Majesty the Queen in Right of Ontario Third Parties (Respondents) Barry L. Yellin, for the appellant Skyler Williams Paul DeMelo and Kristie Jennings, for the responding party Foxgate Developments Inc. Bruce A. Macdonald, for the responding party Corporation of Haldimand County Richard Ogden and James Shields, for the respondent Her Majesty the Queen in Right of Ontario Mary Eberts and Jillian Rogin, for the proposed intervener 1492 Windsor Law Coalition Caitlyn E. Kasper and Jonathan Rudin, for the proposed intervener Aboriginal Legal Services Cara Zwibel, for the proposed intervener Canadian Civil Liberties Association Heard: September 22, 2021 by video conference REASONS FOR DECISION Overview [1] 1492 Windsor Law Coalition (“1492 WLC”) (M52762), Aboriginal Legal Services (“ALS”) (M52714), and the Canadian Civil Liberties Association (“CCLA”) (M52781) have brought motions 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 the decision of Harper J. (the motion judge) of the Superior Court of Justice. [2] The order under appeal struck out the appellant’s pleadings on an injunction brought by Foxgate Developments Inc. (“Foxgate”) and the Corporation of Haldimand County (“Haldimand”). The motion judge found the appellant had engaged in an abuse of process due to the appellant’s self-admitted contempt of court. The appellant also seeks leave to appeal the costs decision of the motion judge, which directed the appellant to pay Foxgate and Haldimand substantial costs. [3] During the proceedings below, the appellant also brought a Notice of Constitutional Question and Third-Party Claim against Canada and Ontario. Both Canada and Ontario are third parties in the appeal. [4] The appeal was perfected by the appellant on February 23, 2021. All the materials by the parties involved in the appeal were filed by the end of July. The appeal is scheduled to be heard on October 26, 2021. [5] Foxgate and Haldimand are opposed to the motions. Canada takes no position on any of the motions to intervene. Ontario consents to the motions to intervene by the CCLA and ALS and takes no position on 1492 WLC’s motion. [6] In determining these motions, I must consider the general nature of the case, the issues that arise in the case, and the contribution that the proposed intervener can make to resolving those issues without doing an injustice to the parties : Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), at para. 22; Peel (Regional  Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167. [7] I am also mindful that where an appeal involves a private dispute rather than public law, the proposed intervener must meet a stringent standard: Tsige , at para. 23. Nature of the Case [8] Foxgate owns a development site that is located on land that is the subject of an ongoing and long-standing land dispute between Six Nations, Canada, and Ontario. The appellant, Skyler Williams, argues that this site is unceded Six Nations land and since July 2020, a group of Indigenous individuals and their supporters has occupied the site. [9] Foxgate and Haldimand County obtained interlocutory injunctions against the individuals occupying the site and also those demonstrating in surrounding streets. [10] On August 25, 2020, the motion judge added the appellant as a defendant in the proceeding. The motion judge extended the interlocutory injunctions to October 9. The appellant filed a statement of defence. [11] At the October 9 hearing, the appellant admitted he was in contempt of court and in breach of the interlocutory orders. He also stated that he would remain in contempt of court and would continue to occupy the site. At this hearing, it became clear that the appellant had also tried to serve the Crown (i.e., Canada and Ontario) on September 18, but the documentation was not in the proper form and had been rejected by the court. [12] In a written endorsement dated October 16, 2020, the motion judge ruled that he would not permit the appellant to proceed against Canada and Ontario while the appellant was not in compliance with the court’s orders. However, he directed that if the appellant did comply with the orders of the court and vacate the subject lands, he could reinstate himself and fully participate in the proceedings. The matters were adjourned to October 22, 2020. [13] The appellant then issued a Third-Party Claim on October 20, 2020 and served a Notice of Constitutional Question pursuant to the Rules of Civil Procedure and the Courts of Justice Act, R.S.O. 1990, c. C.43 . [14] At the October 22 hearing, the motion judge asked the appellant if he would comply with permanent injunctions if the court ordered that relief in favour of Foxgate and Haldimand. The appellant stated that his position had not changed. [15] The motion judge then stated again that the appellant was engaged in an abuse of process and that the appellant was still in contempt of court. He then ordered that the appellant’s pleadings be struck. The motion judge then heard submissions from Foxgate and Haldimand County on the request for permanent injunctions and he granted those injunctions. Finally, the motion judge fixed and ordered costs against the appellant on a substantial indemnity scale to Foxgate at $117,814.18 and to Haldimand at $49,470 (plus HST). Issues that Arise on Appeal [16] I have reviewed the factums filed by the parties on the appeal. The appellant asks that this court set aside the final orders made by the motion judge so that the injunction motion can be reheard in the Superior Court with him as a party and on their merits. The appellant also seeks leave to appeal the cost orders. [17] First, the appellant argues that, in arriving at the decision to strike his pleadings and terminating his further participation in the action against him, the motion judge failed to afford him procedural fairness. [18] Second, the appellant submits that the court also failed to consider certain principles that ought to apply in cases concerning civil remedies that are levied against Indigenous parties. Specifically, the appellant argues that the motion judge ought to have considered the Gladue sentencing principles before he struck the pleadings. [19] Finally, the appellant argues that, before striking the appellant’s pleadings, the motion judge ought to have considered: · whether, by its own admission, the court’s impartiality had been diminished; · whether amicus curiae ought to have been appointed for the appellant, given that the appellant had supposedly engaged in contumacious behaviour that had not been purged; · whether the principles of abuse of process ought to have been conflated with contempt of court; · whether the prosecution of the appellant’s contempt ought to have been referred to the Attorney General to avoid the court taking on a dual role; · given that a finding of contempt was made on the court’s own motion, whether the hearing ought to have been held in accordance with the principle of strictissimi juris , which it was not; and, among other things, · whether certain considerations ought to have been afforded to the appellant, since he is Indigenous, and had properly commenced a Third-Party Claim against the Crown and had served a Notice of Constitutional Question. [20] The appellant will also argue that the order made by the motion judge, directing that the appellant pay over $168,000.00 in legal costs, was exorbitant. He contends that it is based on an error in principle or is otherwise plainly wrong. Proposed Contributions Submissions of 1492 WLC [21] 1492 WLC is a grassroots coalition of students (Indigenous, non-Indigenous, settlers, immigrant settlers) and professors at the University of Windsor, Faculty of Law. 1492 WLC came together in the Fall of 2020 in response to the call to action issued by land defenders at 1492 Landback Lane, a land reclamation action undertaken by the appellant and many other Haudenosaunee and non-Haudenosaunee people. 1492 WLC has worked to provide accessible public legal information and research related to the reclamation, media support, court support, solidarity statements, and solidarity event organizing. [22] 1492 WLC argues that it would make a useful contribution by intervening in order to examine the ways in which settler colonialism in Canada has influenced the place of Indigenous peoples and legal orders in Canadian law, and to explore the ways in which the injunction remedy has been shaped by this influence. 1492 WLC would argue that Indigenous Legal Orders should form part of the rule of law. 1492 WLC asserts that the rule of law has been raised in the appeal and is not a new legal issue. [23] 1492 WLC’s 21-page draft factum addresses the appropriateness of an injunction remedy in the context of land protest cases by Indigenous persons. 1492 WLC submits that, if this court on appeal should decide that errors by the motion judge require the injunction to be set aside and a new proceeding ordered, this court should provide guidance on various procedural and substantive matters to the court rehearing the matter. [24] 1492 WLC seeks to file a 20-page factum and be given 20 minutes of oral submissions. They also seek that no costs be awarded for or against them. Submissions of ALS [25] ALS is a multi-service legal agency that provides services to the Indigenous community in Ontario. ALS’ expertise arises from its direct work with and on behalf of Indigenous communities. This expertise has been recognized both in courtrooms and in other arenas. Over the past thirty-one years, ALS has worked to convey Indigenous perspectives in justice-related matters. ALS has been granted intervener status in 26 Supreme Court cases and participated in at least 18 cases at this court, either as an intervener or as counsel to the accused. [26] ALS submits that the issues raised in this appeal will directly impact their clients and the Indigenous community members who face contempt of court due to asserting their s. 35 rights in a dispute where injunctive relief has been granted. According to ALS, there is a need for this court to hear from the broader Indigenous community, not just that of the appellant. [27] ALS’s 20-page draft factum highlights the following issues raised by this appeal. ALS submits that it can provide a distinct perspective on these three issues without expanding the scope of the appeal: 1. The breadth of the analytic framework necessary to determine an application for injunction against members of an Indigenous community when s. 35 interests are engaged; 2. Why every effort must be made by the court to encourage the resolution of competing rights and interests; and 3. The approach in treatment of an Indigenous contemnor’s participation in court proceedings when contempt has not been purged. [28] ALS seeks to file a 20-page factum and be given 20 minutes of oral submissions. They also seek that no costs be awarded for or against them. Submissions of the CCLA [29] The CCLA is a leading national, independent, non-profit, and non-governmental organization dedicated to the furtherance of civil liberties across Canada. It was formed with the objective of promoting and advancing respect for and observance of fundamental human rights and civil liberties. In recognition of its important role, the CCLA has frequently been granted intervener status before courts, including this court. [30] The CCLA has substantial expertise in the areas of protecting and promoting fundamental freedoms, including freedom of expression, peaceful assembly, and association. The CCLA has frequently been involved in litigation and policy debates implicating the right to protest and considering the permissible nature and scope of state conduct in relation to protest activities, including work focused on the special considerations relevant to protests involving Indigenous people. [31] The CCLA argues that its submissions will assist the court in placing the appeal in a broader context and address points that are distinct from those raised by the parties or other proposed interveners. [32] The CCLA’s 16-page draft factum makes the following three submissions that, it submits, provide a distinct perspective that does not expand the scope of the appeal: 1. A finding of contempt requires that the alleged contemnor be afforded meaningful due process; 2. Amicus curiae should be appointed in requires for ex parte injunctive relief that significantly engage constitutional rights; and 3. The need to consider systemic racism and discrimination before denying a litigant an opportunity to be heard and sanctioning the individual with a large costs award. [33] The CCLA seeks to file a 20-page factum and be given 20 minutes of oral submissions. Prejudice [34] An overarching concern is prejudice to the parties in the appeal due to the timing of these motions. The proposed interveners have waited a long time to bring these motions given that the appeal was perfected on February 23, 2021. If the court were to grant leave to intervene, the respondents would only have a brief period of time to provide responding submissions. Although this concern is somewhat alleviated because all of the proposed interveners served draft factums in late July and early August when they brought their motions for leave to intervene, the reality is that the proposed intervention has been brought late in the day. I am of the view that there are legitimate concerns regarding prejudice from the late filing of motions approximately six weeks before an appeal that was perfected on February 23, 2021. If intervention is granted, materials would have to be produced to respond to the interventions. An intervention of this nature is meant to assist the court. The assistance can be significantly diminished when five additional factums [1] are being filed at the last minute: Foster v. West , 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 18. [35] Foxgate and Haldimand argue that most of the submissions the proposed interveners seek to make are not relevant to the narrow procedural issue which is the subject matter of the appeal and that they will be prejudiced by the inordinate delay and increased costs that will be caused by the proposed interveners attempts to add substantial new arguments and issues not raised by the parties. [36] Foxgate especially opposes 1492 WLC’s intervention because, it argues, that 1492 WLC has no standing as an unincorporated association to intervene, and 1492 WLC’s intervention is inappropriate, given that 1492 WLC has provided support and legal advice to the appellant throughout the proceedings. Discussion [37] I do not think it can be seriously argued that all three proposed interveners have expertise with a distinct perspective of this case. The primary consideration on this motion is an assessment of the contribution that each proposed intervener can make to the issues raised by the appellant without doing an injustice to the parties. [38] The submission made by Foxgate and Haldimand that the appeal is “limited to whether any individual, whether an Indigenous person or a non-Indigenous person who is in contempt of the Court on their own admission is to be afforded the ability to advance their own claims and interests before the Court against others in the same proceedings” is an overly simplistic characterization that is devoid of context. While it is true that the appeal does not relate to the merits of the granting of interim or permanent injunctions against the appellant and does not relate to the constitutionality of injunctions in relation to First Nations’ claims or contempt in First Nations’ cases generally, the striking of the appellant’s pleadings must be viewed in the context of the fact that it was an injunction proceeding that brought the appellant before the Superior Court of Justice. [39] Although the nature of this case is a private dispute, and a stricter onus has been applied to interventions in private disputes, the issues raised in this appeal involve broader public policy considerations that transcend the dispute between the immediate parties. This court has held that the “more onerous threshold may be softened somewhat where issues of public policy arise”: Tsige , at para. 23, citing Childs v. Desormeaux (2003), 67 O.R. (3d) 385 (C.A.), at paras. 3, 10; Huang v. Fraser Hillary’s Limited , 2018 ONCA 277, at para. 5. While it is true this is not a case that directly involves s. 35 of the Constitution Act, 1982, in his factum, the appellant, who is Indigenous, will argue that the rule of law has many dimensions, including respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, and fair procedural safeguards. In my view, the appellant does raise the important public policy issues in his factum about whether the assertion of collective interests by an Indigenous person impacts the appropriateness of a decision to strike pleadings for abuse of process from contempt. [40] That said, all of these public policy issues are addressed in the appellant’s factum. Furthermore, the specific remedy sought by the appellant from this court is for the motion judge’s orders to be set aside so that he can meaningfully participate in a rehearing that will determine Foxgate and Haldimand’s request for a permanent injunction. Given the general nature of the case and the issues that arise in the appellant’s factum, I must assess the contribution that the proposed interveners can make to those issues and also keep in mind the arguments relating to prejudice advanced by Foxgate and Haldimand. 1492 WLC [41] In my view, 1492 WLC should not be granted intervener status in this case because they will not make a useful contribution without prejudicing the parties. Their draft factum solely addresses the appropriateness of a permanent injunction in the context of land protests by Indigenous persons. Although the context of an injunction proceeding is important, this issue is not before the court and it expands the record in a way that is prejudicial to the parties. The parties would be required to address a new issue so that this court can give potential guidance to the court below relating to permanent injunctions if it is sent back for a rehearing. In my view, if this court does send the case back for a rehearing, it is open to 1492 WLC to seek intervention status for that hearing. [42] In light of my decision to deny 1492 WLC’s motion, I need not deal with Foxgate and Haldimand’s submission that 1492 WLC has no standing because they are not incorporated. However, that submission seems to be more of an objection that is one of form rather than substance. This court has rejected the submission that an unincorporated entity is barred from intervention: Halpern v. Canada (Attorney General) (2003), 169 O.A.C. 172 (C.A.), at para. 7. I agree with WLC 1492’s submissions that they are not a “fly-by-night” organization that will disobey any rules and parameters set by a court and that the lack of “incorporation” by the organization should not be a bar to their proposed intervention. [43] Nor do I need to deal with Foxgate’s submission that WLC 1492 is really an appellant in disguise. Again, I would only make the observation that this court in other cases has recognized that interveners “need not be ‘impartial’, ‘objective’ or ‘disinterested’ in the outcome of the case” and “[t]he fact that the position of a proposed intervenor is generally aligned with the position of one of the parties is not a bar to intervention if the intervenor can make a useful contribution to the analysis to of the issues before the court”: Oakwell Engineering Limited v. Enernorth Industries Inc. , 2006 CanLII 60327 (Ont. C.A.), at para. 9; Childs, at para. 13. ALS [44] Like 1492 WLC, ALS’s submissions also focus mostly on considerations of injunction proceedings against members of an Indigenous community when s. 35 rights are engaged (approx. 15 pages). In contrast to 1492 WLC’s submissions which address the particulars of the test of an injunction, ALS does provide additional brief submissions that focus on the treatment of an Indigenous contemnor’s participation in court proceedings when contempt has not been purged. However, I am of the view that this issue will be addressed by the appellant who may develop the submissions made at para. 93 of his factum. In my view, the court does not require additional assistance from ALS on this specific issue, which is outlined at paras. 46 to 56 of its draft factum. Indeed, the submissions advanced by ALS will likely be duplicative of the appellant’s submissions. CCLA [45] While the CCLA does focus on the issues before the court, their arguments about due process are largely duplicative of the submissions that will be advanced by the appellant in his appeal. I have already summarized the submissions of the appellant earlier in these reasons. There is considerable overlap between the submissions of the CCLA and the appellant. Moreover, the proposed submissions on the appropriateness of appointing amicus curiae in cases where ex parte injunctions may impact constitutional rights is also addressed by Ontario, a third party to this appeal. Overall, I cannot say with confidence that the CCLA provides a unique perspective on this particular case. The submissions made by the CCLA will be addressed by the parties in the appeal. [46] Overall, I am not persuaded that WLC 1492, ALS, or the CCLA have any distinct contribution to make in relation to this specific appeal. I am satisfied that the Indigenous perspective will be fully and adequately addressed by the appellant. [47] In conclusion, I agree with Foxgate and Haldimand that a substantial portion of the submissions proposed by WLC 1492 and ALS inappropriately expands the legal issues on appeal by making submissions on injunctions. With respect to the CCLA, I find that a substantial portion of its submissions overlaps with those made by the appellant. When I consider 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 motions must be dismissed. DISPOSITION [48] The motions to intervene are dismissed. [49] Foxgate and Haldimand seek costs of these motions. In my view, this is not an appropriate case to order costs against the proposed interveners. The motions are from public interest organizations and an organization that is associated with a Canadian law school. There will be no order as to costs of this motion. “S. Coroza J.A.” [1] Foxgate and Haldimand would likely file separate factums.

COURT OF APPEAL FOR ONTARIO CITATION: Nelson v. TELUS Communications Inc., 2021 ONCA 751 DATE: 20211021 DOCKET: C69093 Strathy C.J.O., Nordheimer J.A. and Wilton-Siegel J. ( ad hoc ) BETWEEN Marjorie Nelson Plaintiff (Respondent) and TELUS Communications Inc. Defendant (Appellant) Catherine Beagan Flood, Christopher DiMatteo and Natalie Cammarasana, for the appellant Douglas Lennox, Careen Hannouche and Andrew Cleland, for the respondent Heard: October 20, 2021 by video conference On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated January 12, 2021, with reasons reported at 2021 ONSC 22, 2021 ONSC 23 and 2021 ONSC 24. APPEAL BOOK ENDORSEMENT [1] The appeal is dismissed, substantially for the careful and thorough reasons of the motion judge. [2] The provincial legislation at issue, the Wireless Services Agreement Act 2013 ( WSAA ), has been repealed. Except for the purposes of this class proceeding, the issue of the constitutional validity of the WSAA appears to be of no further consequence. None of Ontario, Canada or the CRTC has sought to intervene in this proceeding. [3] The appeal has largely been a re-argument of the issues that were before the motion judge, without any reference to his reasons and without specifically identifying any error in his factual findings, or any error in his application of well-settled principles of constitutional law. It is evident from his reasons that the motion judge carefully considered the appellant’s arguments and the applicable law, and we agree with his conclusions that (a) the WSAA was within provincial legislative jurisdiction; and (b) it was not rendered inoperative as a result of either paramountcy or interjurisdictional immunity. [4] Nor do we accept the appellant’s alternative submission that the class action should be stayed so that the CRTC can determine whether the plaintiff is entitled to a refund. The motion judge’s conclusion that the WSAA was valid provincial legislation that was operative during the class period does not permit any conclusion other than the plaintiff is entitled to assert her claim – that the appellant breached s. 16 of the WSAA by failing to provide refunds to class members – and that the Superior Court of Justice has jurisdiction over the proceeding. [5] Costs to the respondent fixed at the agreed amount of $65,000, inclusive of disbursements and all applicable taxes.

COURT OF APPEAL FOR ONTARIO CITATION: S. v. A., 2021 ONCA 744 DATE: 20211007 DOCKET: M52807 (C69835) Coroza J.A. (Motion Judge) BETWEEN W.S. Applicant (Respondent/Responding Party) and P.I.A. Respondent (Appellant/Moving Party) Gary S. Joseph and Alice Parama, for the moving party Gary Gottlieb and Mira Pilch, for the responding party Heard: September 23, 2021 REASONS FOR DECISION [1] Mr. S, the respondent, and Ms. A, the appellant, were married in 2011 and separated in 2016. They have two children, L who is seven and A who is five. [1] [2] Regrettably, both parties could not resolve the parenting issues relating to their children. The respondent issued an Application in 2016. A hotly contested 39day trial was held over nine weeks in the Superior Court of Justice beginning in May of 2021. On September 9, 2021, the trial judge released very lengthy and comprehensive reasons ordering that the primary care of the children be transferred to the respondent and granting him sole responsibility for decision making. [3] The appellant has filed a Notice of Appeal with this court. She seeks a stay of the trial judge’s final order pending her appeal. The motion is opposed by the respondent. [4] The test for a stay is not disputed. This court recently summarized the test in the following way, in D.C. v. T.B. , 2021 ONCA 562, at para. 9: Custody and access orders remain in effect pending an appeal to this court unless the court has ordered otherwise. In determining whether to stay an order involving the parenting of a child, the courts must consider: (1) whether, on a preliminary assessment, the appeal raises a serious question (recognizing that this is a low threshold); [2] whether the child will suffer irreparable harm if a stay is refused; and (3) the balance of convenience: namely whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal. The overriding consideration, again, is the best interests of the child. In other words, the court must be satisfied that it is in the child’s best interests to grant a stay. [Citations omitted.] [5] For the reasons that follow, I would dismiss the application for a stay. Serious Question [6] It is not necessary to outline each and every ground of appeal that will be advanced by the appellant in her Notice of Appeal. This is not the appeal. For the purpose of this motion, I will address three arguments that the appellant intends to develop on appeal. [7] First, the appellant argues that the trial judge erred by reversing custody because the respondent has a long and documented history of domestic violence against her and the children. The appellant submits that the children show signs that they fear him and during the trial, the appellant provided examples of the oldest child kicking, screaming, biting, punching, and swearing to avoid seeing his father. The appellant contends that the trial judge unreasonably rejected this relevant and compelling evidence of serious domestic violence and that this is a significant error because the amendments to the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.), prioritize considerations of family violence and its impact on the parenting of the children. [8] In my view, the appellant faces an uphill climb in advancing this ground of appeal. The trial judge made strong findings that the appellant’s allegations of physical, financial, and sexual abuse had not been made out. Moreover, the trial judge found that the appellant had intentionally acted to undermine court-ordered parenting schedules and reunification counselling by bringing false allegations of sexual abuse designed to terminate the children’s relationship with the respondent.   As I read her reasons, the trial judge was prepared to find that the respondent did verbally and emotionally abuse the appellant during their marriage, but this had no impact on his present ability to be primary caregiver and decision maker for the children. That was the trial judge’s call to make. When I consider that the standard for appellate review of a custody or parenting decision is exacting, and that the function of this court will not be to retry the case, these complaints appear to me to be destined to fail: Bors v. Bors , 2021 ONCA 513, at paras. 18-20; A.M. v. C.H. , 2019 ONCA 764, 32 R.F.L. (8th) 1, at paras. 4, 74. [9] The trial judge also specifically dealt with the argument that the amendments to the Divorce Act put domestic violence at the forefront, at para. 23 of her reasons. After noting that a history of family violence has always been an important factor in the adjudication of parenting disputes, she concluded that the pattern of family violence that threatened the children’s best interests was not the conduct of the respondent. Instead, she made very strong findings that it was the appellant’s conduct that undermined the best interests of the children. Her careful reasons do not reveal any obvious error in reaching that conclusion. [10] Second, the appellant argues that the trial judge erred in relying on a dated assessment under s. 30 of the Children’s Law Reform Act , R.S.O. 1990, c. C.12. Howard Hurwitz completed this assessment in 2017 and provided the court with a detailed report on March 9, 2018. [11] The appellant argues that the trial judge stated that the report was dated and could not be of any assistance to her. The appellant points to comments that the trial judge made when she adjourned the trial on June 2, 2021, so that she could explore obtaining an updated report from Mr. Hurwitz. However, when the parties next appeared in court on June 4, 2021, the trial judge seemingly changed her mind and told the parties an updated was not necessary and did not explain why. In his report, Mr. Hurwitz reported that he saw no evidence that the respondent was dangerous or that he could not move forward with the appellant to develop a healthy parenting plan. However, Mr. Hurwitz did not recommend custody reversal in his report – he had recommended sole custody to the appellant. The appellant argues that the trial judge erred in relying on the report. [12] I do not find this argument to be a compelling one. [13] I am not clear as to what an updated s. 30 assessment report would have accomplished. As this court has previously held, the law is clear that a trial judge should not delegate decision making to an assessor, and an assessor’s evidence is but one piece of evidence to consider: Mattina v. Mattina , 2018 ONCA 641, at para. 13, leave to appeal refused, [2018] S.C.C.A. No. 392. The fact that the report may have been dated was a factor to consider. It was the trial judge’s call to make whether or not an updated report was required. Of course, the context of this trial cannot be ignored. The trial had been extensively case managed by judges of the Superior Court, and there had been lengthy delays in getting the matter to trial. The decision not to order an updated s. 30 report is an exercise in trial management, and I see no obvious error in the trial judge’s call. [14] In any event, even if the report was dated, Mr. Hurwitz was produced for trial. Counsel for the appellant was able to cross-examine Mr. Hurwitz and inquire about the respondent’s weaknesses as a caregiver. It appears that there was very little prejudice visited on the appellant by not having an updated report. The trial judge was entitled to rely on the report and the cross examination in reaching her decision. [15] Third, the appellant submits that it is of grave concern that, out of the several professionals involved with the parties and their children since 2016, none recommended a custody reversal except a reunification therapist, Wendy MacKenzie, who was a clinician permitted to offer opinion evidence without a voir dire . The appellant also complains that Ms. MacKenzie was not a registered social worker. [16] The respondent argues that the trial judge did inquire into Ms. MacKenzie’s qualifications and that previous judges involved in prior motions in this case had accepted Ms. MacKenzie as an expert. [17] I am not prepared to say that this argument should be dismissed out of hand. The appellant may develop an argument that Ms. MacKenzie provided inadmissible opinion evidence that strayed well beyond her expertise and that a voir dire was required to determine her qualifications and the nature of the opinion that she was qualified to give to the court. [18] That said, I note that it is the appellant, through counsel, who first proposed in early January 2020 that the parties retain Ms. MacKenzie to conduct reunification counselling. It seems to me that the bulk of Ms. MacKenzie’s evidence (as summarized by the trial judge) relates to her observations of the parties during this process. The trial judge’s reasons reveal that Ms. MacKenzie provided evidence on which parent was best prepared to work within the reunification process. The trial judge also described in detail the efforts made by Ms. MacKenzie to counsel the appellant about fostering a positive relationship with the respondent. In the end, the trial judge found that the appellant had intentionally undermined and sabotaged the reunification process. The trial judge found that, although Ms. MacKenzie had made efforts to convince the appellant to support the children’s relationship with their father, this proposition was never accepted by the appellant. I do not see any obvious error in the trial judge’s treatment of Ms. MacKenzie’s evidence, nor do I see how the failure to hold a voir dire would make her observations inadmissible. [19] That said, this is not the appeal. The threshold to cross in order to establish that there is a serious question on appeal is a low one. I am prepared to say, with this ground of appeal, the appellant has met the threshold for establishing a serious question for appeal. To be clear, I am not suggesting that this ground of appeal is strong. Irreparable Harm [20] The appellant argues that the children will suffer irreparable harm if they are forced to reside with their father, and that the court should revert back to the status quo . The appellant argues that there has been a long history of domestic violence towards the children, and that she has had primary care of the children. The appellant submits that the order causes irreparable harm because the children effectively lose their meaningful parent-child relationship with her, their primary caregiver, mother, and support system. [21] The appellant argues that the change ordered by the trial judge is so drastic that it has caused physical, emotional, social, and psychological harm to the children. The appellant relies on two pieces evidence that she has obtained post-trial to support her submission on irreparable harm. [22] First, the appellant points to a recent chat she had with her oldest child on Zoom. In that chat, the child wrote, “help call popo [police].” The child also wrote, “pls [please] get me out of here” and “i hate my life.” The appellant points to this as evidence that the child is suffering in the current situation. [23] As a preliminary matter, the respondent objected to the appellant filing these excerpts of communications. I do not see the basis for the objection. This appeal involves the best interests of a child and on a motion to stay it is important to have the most current information possible when determining irreparable harm. I see no issue with this evidence because the primary concern is the child’s best interests. [24] Turning now to the appellant’s argument that the chats demonstrate irreparable harm, I do not view this as evidence of significant harm. Arguably, there is contrary evidence from the respondent that suggests that the children have adjusted well since the order was made and are working on a continuing positive relationship with the respondent. [25] It is beyond dispute that moving children back and forth is necessarily disruptive. It seems to me that, while reversal of custody decisions contemplate that there will be initial unhappiness, they are decided for the long-term benefit. The trial judge recognized this. While the chats are troubling, they do not provide evidence of significant or irreparable harm. [26] Second, the appellant relies on an opinion from Dr. Peter Jaffe, a psychologist and Professor Emeritus in the Faculty of Education at Western University and Director Emeritus of the London Family Court Clinic. According to the opinion, the type of arrangements ordered by the trial judge rarely work, and custody reversal is highly intrusive and does not always succeed because it may further traumatize children. [27] Respectfully, I am not persuaded that this report should carry much weight in the analysis. I do not dispute that Dr. Jaffe is an expert. But this evidence does not assist me on this motion. It has not been subjected to cross-examination, he was not called as a witness at trial, he did not meet the children or the parties, or review the trial evidence. He was only asked to comment on his opinion with respect to custody reversal. This opinion does not provide a picture to this court as to how the children are doing post-trial in assessing “irreparable harm”. In addition, it is not clear to me that this new evidence would be admissible on the appeal, even with the caveat that the test for fresh evidence is more flexible where an appeal involves the best interests of a child: Goldman v. Kudelya , 2017 ONCA 300, at para. 25. Balance of Convenience [28] In my view, this factor tips in favour of the respondent. I am not satisfied that there is evidence of irreparable harm or risk of harm to the children as a result of the order, but there is evidence of benefit to the children in continuing to have the trial judge’s order intact pending appeal. The trial judge concluded that the very best outcome for the children is to first restore their parenting relationship with the respondent, and then to progress parenting as quickly as possible to a schedule appropriate to their age and stage of development, while minimizing transitions. To stay the order under appeal would be highly disruptive to this goal and would not be in their best interests. The order was made on September 9, 2021. The children have had less than one month to adjust to being with the respondent. I see no reason at this stage to doubt the trial judge’s conclusions as to what the best interests of the children are. [29] The overarching consideration in whether to grant a stay pending appeal is whether doing so is in the interests of justice. By all accounts, this was a very difficult, high-conflict trial. In light of the very weak grounds of appeal, no evidence of irreparable harm, and the balance of convenience tipping in favour of maintaining the trial judge’s goal of restoring the parenting relationship with the respondent, it is not in the interests of justice to grant a stay. Conclusion [30] For these reasons, the application for a stay pending appeal is dismissed. Within ten days of the release of this decision, the parties may provide costs submissions in writing not to exceed three pages, supported by bills of costs. The parties are directed to contact the Appeal Scheduling Unit to arrange for a case management judge with a view of expediting the appeal. “S. Coroza J.A.” [1] The decision appealed from initialized the parties’ and the children’s names as well as omitting their birthdates to protect their privacy. I have decided to continue to do the same in these reasons.

COURT OF APPEAL FOR ONTARIO CITATION: Pinder v. Biggar, 2021 ONCA 750 DATE: 20211021 DOCKET: M52551 (C69419) Benotto, Brown and Harvison Young JJ.A. BETWEEN Jack Pinder, Victor Dusik and Innotech Safety Solutions Inc. Creditors (Respondents/Moving Parties) and Wayne Biggar Debtor (Appellant/Responding Party) and Hospodar Davies & Goold Garnishee (Respondent/Responding Party) Howard Borlack, Stephen Barbier and Ben Tustain, for the moving parties Douglas Spiller, for the responding party Wayne Biggar John Davies, for the responding party Hospodar Davies & Goold [1] Heard: September 8, 2021 by video conference COSTS ENDOSEMENT [1] We have reviewed the parties’ cost submissions. Mr. Biggar’s appeal to this court clearly was brought to the wrong court and was an obvious delay tactic. Consequently, the respondents Jack Pinder, Victor Dusik and Innotech Safety Solutions Inc., are entitled to their substantial indemnity costs fixed in the amount of $11,500, inclusive of disbursements and applicable taxes, payable by Mr. Biggar within 5 days of the release of this endorsement. “M.L. Benotto J.A.” “David Brown J.A.” “Harvison Young J.A.” [1] John Davies appeared but made no written or oral submissions on behalf of the responding party Hospodar Davies & Goold.

COURT OF APPEAL FOR ONTARIO CITATION: Scaffidi-Argentina v. Tega Homes Developments, 2021 ONCA 738 DATE: 20211022 DOCKET: C68870 Hourigan, Huscroft and Coroza JJ.A. BETWEEN Carmen Scaffidi-Argentina, Michaelangelo Scaffidi-Argentina, Sheila Scaffidi-Argentina and Marissa Scaffidi-Argentina Plaintiffs and Tega Homes Developments Inc. , Goodeve Manhire Inc. , Goodeve Manhire Partners Inc. , Paterson Group Inc. and the City of Ottawa Defendants ( Appellant / Respondents ) Robert Emblem and William Plante-Bischoff, for the appellant Elizabeth K. Ackman and Sean D. McGarry, for the respondents Heard: October 8, 2021 by video conference On appeal from the order of Justice Charles T. Hackland of the Superior Court of Justice, dated October 30, 2020, with reasons reported at 2020 ONSC 6656, 8 C.C.L.I. (6th) 223. REASONS FOR DECISION [1] The respondents served as an engineering consultant and subcontractor on a construction project in the City of Ottawa. The appellant was the owner and developer of the project and was insured under a wrap-up liability policy which contained a waiver of subrogation clause. Adjacent property owners (the “plaintiffs”) sued the parties arising from damages caused by excavation work on the project. The plaintiffs filed a statement of claim and their own property insurer, State Farm Fire and Casualty Company (“State Farm”), indemnified part of the damages sought in the claim. State Farm thus became subrogated to part of the plaintiffs’ claim against the parties. The plaintiffs later recovered an amount from the appellant’s insurer. [2] In response to the claim, the appellant filed a statement of defence and crossclaim. The crossclaim against the respondents sought contribution and indemnity in respect of any amounts it might be found liable to pay to the plaintiffs. The respondents then brought a summary judgment motion requesting that the crossclaim be dismissed on the basis that they were insured under the appellant’s policy and the crossclaim was prohibited by the waiver of subrogation clause in the policy. [3] The motion judge granted the motion and dismissed the appellant’s crossclaim. He concluded that the respondents were “additional insured” under the policy and were entitled to the waiver of subrogation provided for in the policy. [4] In this appeal, the appellant repeats the same argument made before the motion judge – that the policy does not bar it from asserting a subrogated claim for indemnity against the respondents because they are not covered under the policy for the professional services claims brought by the property owners. According to the appellant, the respondents have coverage for professional services claims from their own insurer, yet, the motion judge’s decision requires it to nevertheless cover the loss because of the waiver of subrogation clause. The appellant submits that such a decision results in a windfall for the respondents, is commercially unreasonable, and ignores the relevant surrounding circumstances. [5] We reject the appellant’s argument. [6] The policy was a standard form contract. The surrounding circumstances generally play less of a role in the interpretation of these types of contracts of adhesion because the parties do not negotiate the terms, and the contract is put to the receiving party as a “take it or leave it” proposition: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. , 2016 SCC 37, [2016] 2 S.C.R. 23, at paras. 25, 32. [7] It was agreed that the respondents were an engineering consultant and subcontractor. As such, the respondents were within the definition of additional insureds under the policy and although the policy specifically excluded coverage for professional liability, the appellant contracted out of any right of subrogation against all insureds (including additional insureds) under the policy. The motion judge observed that it would have been open to the appellant to have changed the wording of the policy, perhaps by altering the scope of the subrogation waiver or the definition of additional insured, to reflect the professional services coverage exclusion. We agree with the motion judge’s conclusion that it was not his function to restructure the commercial contractual arrangement agreed upon by these sophisticated parties to achieve what might be considered a fairer result. The motion judge noted that since there were no project agreements between the parties pertaining to insurance coverage, the policy must speak for itself. [8] The motion judge interpreted the policy in accordance with the guidance set out by the Supreme Court of Canada in its decision in Progressive Homes Ltd.  v.  Lombard General Insurance Co. of Canada , 2010 SCC 33, [2010] 2 S.C.R. 245, at paras. 22-24. Reading the contract as a whole, the language of the policy is unambiguous and the motion judge was required to give effect to the clear language set out in the policy. We are in substantial agreement with his reasons. [9] The appellant also argues that the motion judge erred in assuming that the crossclaim was a subrogated claim. To support this point, the appellant advanced two main submissions in oral argument. [10] First, the appellant contends that the crossclaim was filed before its insurer made any payment to the plaintiffs, and the payment that was subsequently made was not to settle the appellant’s liability since no trial determining liability has taken place yet. The appellant thus argues that the crossclaim never became a subrogated claim because its insurer made no payments pursuant to a policy obligation. We disagree. The appellant’s insurer made payment to the plaintiffs after damages were assessed at the damages trial and in exchange for a full and final release. The release explicitly refers to the damage amount being consideration for the settlement of the issue of liability advanced by the plaintiffs. In settling with the plaintiffs, the appellant’s insurer was dealing with a liability issue, notwithstanding the fact that the crossclaim remained to be determined. [11] At its core, the dispute between the parties on the crossclaim was whether the appellant could recover the payment of money from the respondents. It is self-evident that any recovery on the crossclaim would have been paid to the appellant’s insurer to cover the settlement amount. The act of seeking indemnity from a third party such as the respondents for payments is, by definition, subrogation. [12] Second, the appellant submits that the crossclaim was not a subrogated claim because the appellant has made no payment to State Farm for its subrogated portion of the plaintiffs’ claim. We do not accept this submission. The appellant is the only defendant remaining in the action. Thus, the only party State Farm can obtain judgment against is the appellant. Indeed, in oral argument it was acknowledged that State Farm has obtained a judgment against the appellant for this payment: Scaffidi-Argentina v. Tega Homes Developments Inc. et al. , 2021 ONSC 3223, appeal as of right filed, C69482. The appellant’s submission is an argument with respect to timing. A payment to State Farm may not have been made yet, but that does not change the nature of the claim being made by the appellant against the respondents. Again, the only way it can seek recovery is by subrogation. [13] The motion judge was correct to consider the appellant’s crossclaim a subrogated claim. He did not err in dismissing the crossclaim in its entirety. [14] The appeal is dismissed. Costs for the appeal are awarded to the respondents in the agreed upon amount of $25,000 all-inclusive. “C. W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Weslease 2018 Operating LP v. Eastgate Pharmaceuticals Inc., 2021 ONCA 743 DATE: 20211022 DOCKET: C68859 Feldman, Pepall and Tulloch JJ.A. BETWEEN Weslease 2018 Operating LP Plaintiff (Respondent) and Eastgate Pharmaceuticals Inc., Proactive Supply Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey, Giancarlo Staffieri and Anna Gluskin Defendants (Appellants) Yonatan Lipetz, for the appellants Proactive Supply Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey and Giancarlo Staffieri David Winer, for the respondent Heard: October 14, 2021 by video conference On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated November 2, 2020, with reasons reported at 2020 ONSC 6464. REASONS FOR DECISION [1] The appellants, Proactive Supply Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey, and Giancarlo Staffieri appeal from the summary judgment granted against them in favour of the respondent, Weslease 2018 Operating LP. [2] The respondent leased laboratory equipment to the appellants pursuant to a lease and general security agreement. The appellants defaulted in payment. Relying on its security, the respondent commenced proceedings and successfully obtained an order to recover five of seven pieces of equipment. A bailiff subsequently repossessed the five pieces of equipment. [3] The respondent agreed to sell all seven pieces of equipment to a third party purchaser, who paid $60,000. The sale was conditional on the respondent’s ability to deliver the remaining two pieces still in the appellants’ possession, failing which, the $60,000 was to be refunded. [4] The respondent subsequently brought a motion for summary judgment for damages against the appellants, and an order for delivery up of the remaining two pieces of equipment. Before the motion judge, the appellants argued that they had entered into a settlement agreement with the respondent which required dismissal of the respondent’s motion. [5] The motion judge concluded that the parties had not entered into a settlement agreement. He granted the relief requested and ordered that if the appellants failed to deliver the remaining two pieces of equipment, they were to pay the respondent $60,000 on receipt of proof that the respondent had refunded that amount to the third party purchaser. [6] The appellants advance three grounds of appeal. [7] First, they submit that the motion judge made a palpable and overriding error in determining that the parties never entered into a settlement agreement. [8] We disagree. [9] The documents relied upon by the appellants were conditional on payment of outstanding arrears which never materialized. Neither the written nor the oral evidence before the motion judge supported the finding of a settlement agreement and he correctly dismissed the appellants’ arguments in that regard. [10] Second, the appellants submit that issues of credibility amounted to genuine issues requiring a trial and hence summary judgment ought not to have been granted. The problem with this argument is that the appellants were unable to identify any issues in the evidentiary record before the motion judge that engaged relevant competing issues of credibility. [11] Third, the appellants submit that the motion judge failed to adequately assess damages. The appellants failed to proffer any evidence of value that would dictate a different result than that reached by the motion judge. We fail to see any merit in the appellants’ damages argument. [12] The appeal is dismissed with costs of $10,000 inclusive of disbursements and HST to be paid by the appellants to the respondent. “K. Feldman J.A.” “S.E. Pepall J.A.” “M. Tulloch J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Antonyuk v. Antonyuk, 2021 ONCA 748 DATE: 20211025 DOCKET: C69381 Feldman, Pepall and Tulloch JJ.A. BETWEEN Iryna Antonyuk Applicant (Appellant) and Mykhaylo Antonyuk Respondent (Respondent) Iryna Antonyuk, acting in person Igor Yushchenko, for the respondent Heard: October 13, 2021 by video conference On appeal from the order of Justice E. Llana Nakonechny of the Superior Court of Justice, dated January 29, 2020, with reasons reported at 2020 ONSC 644. REASONS FOR DECISION [1] The appellant appeals the decision of the trial judge which recognized the divorce of the appellant and the respondent obtained by the respondent in Ukraine, dated October 23, 1998, pursuant to s. 22 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). [2] The appellant argued at trial that the Ukrainian divorce was invalidly obtained and that the court in Kiev did not have jurisdiction to grant the divorce. [3] The appellant sought a divorce in Canada in 2017 and obtained a divorce order, but that divorce was set aside when the respondent took the position that the parties were already divorced. The respondent has remarried and has a child with his current wife. The appellant’s position is that she needs a Canadian divorce in order to be able to remarry because the Ukrainian divorce is not valid. [4] This was a four-day trial with evidence from the parties, a witness who observed the parties immediately after the Ukrainian divorce, and an expert on Ukrainian law. [5] The trial judge considered the requirements of s. 22 of the Divorce Act for the recognition of a foreign divorce, noting that foreign divorce decrees are presumptively valid. [6] The trial judge accepted the opinion of the expert that the Ukrainian court had jurisdiction to grant the divorce. The trial judge also accepted the finding by the Ukrainian court that the appellant had been given notice of the hearing and had not appeared. The trial judge noted that the appellant had not alleged fraud, and there was no evidence of fraud. [7] The trial judge found that the appellant had relied on the Certificate of Divorce from Ukraine when filing her Canadian income tax returns as a divorced person since 2001 and continued to do so even after she began to question the validity of the divorce. The trial judge also observed that the appellant delayed for many years before challenging the validity of the divorce. This observation was made in the context of the fact that failing to recognize the validity of the divorce would be very detrimental to the respondent and his family. [8] The trial judge concluded that the appellant had not met her onus of proving that the Certificate of Divorce from Ukraine was not properly obtained and should not be recognized in Canada. [9] We see no error in the trial judge’s findings or analysis. She was entitled to accept the evidence presented that verified the validity of the Ukrainian divorce and to reject the position of the appellant. [10] The appeal is dismissed with costs fixed in the amount of $5,000, inclusive of disbursements and HST. “K. Feldman J.A.” “S.E. Pepall J.A.” “M. Tulloch J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: McFlow Capital Corp. v. James, 2021 ONCA 753 DATE: 20211025 DOCKET: C68043 Rouleau, Hoy and Thorburn JJ.A. BETWEEN McFlow Capital Corp. Plaintiff (Respondent/ Appellant by way of cross-appeal) and Kenneth James, personally and in his capacity as trustee for Laura McClenaghan, Rosemary Cremer and the Estate of Kenneth McClenaghan , Laura McClenaghan, personally and in her capacity as trustee for the Estate of Kenneth McClenaghan, Dorothy Short in her capacity as trustee for the Estate of Kenneth McClenaghan, Rosemary Cremer , Susan James, 1303678 Ontario Inc., Sterling Capital Corporation, Eveline Holdings Ltd., and G.A.C. Investments Ltd. Defendants (Appellants/ Respondents by way of cross-appeal) AND BETWEEN Kenneth James, personally and in his capacity as trustee for Laura McClenaghan, Rosemary Cremer and the Estate of Kenneth McClenaghan , Laura McClenaghan, personally and in her capacity as trustee for the Estate of Kenneth McClenaghan, Dorothy Short in her capacity as trustee for the Estate of Kenneth McClenaghan, Rosemary Cremer , 1303678 Ontario Inc., and G.A.C. Investments Ltd. Plaintiffs by Counterclaim ( Appellants/ Respondents by way of cross-appeal ) and McFlow Capital Corp., Premium Properties Limited and Milton Winberg Defendants to the Counterclaim (Respondents/ Appellants by way of cross-appeal) Theodore B. Rotenberg and Ranjan Das, for the appellants/respondents by way of cross-appeal Hilary Book and Samantha Del Frate, for the respondents/appellants by way of cross-appeal Heard: September 21, 2021 by video conference On appeal from the judgment of Justice Sandra Nishikawa of the Superior Court of Justice, dated January 20, 2020 and October 9, 2020, with reasons reported at 2020 ONSC 374 and 2020 ONSC 6167. Thorburn J.A.: A. INTRODUCTION [1] This is an appeal by the appellants (defendants), Kenneth James personally (“James”), and in his capacity as trustee for Laura McClenaghan, Rosemary Cremer, and the Estate of Kenneth McClenaghan, and Rosemary Cremer (“Cremer”). The appellants claim the trial judge erred in holding that the oppression and conspiracy claims against Cremer were not statute-barred, awarding punitive damages against Cremer, and ordering substantial indemnity costs payable to McFlow. [2] The respondents, McFlow Capital Corporation (“McFlow”), Premium Properties Limited (“Premium”) and Milton Winberg, cross-appeal the trial judge’s award of prejudgment interest. B. THE PARTIES [3] The claim involves a condominium corporation called Simcoe Condominium Corporation No. 27 (“SCC 27”). [4] The appellant, James, was the lawyer for both SCC 27, and the first and second mortgagees for 30 of the 44 units (“the majority units”) in SCC 27. The trial judge determined that James held a beneficial interest in the mortgages on the majority units in SCC 27 such that he was able to control SCC 27, himself or through two off-shore companies, Eveline Holdings Ltd. (“Eveline”) and Sterling Capital Corporation (“Sterling”). Eveline and Sterling were James’ alter egos. [5] The appellant, Cremer, was the bookkeeper and office manager of James’ law firm, a director of SCC 27, and James’ friend and housemate. [6] The respondent McFlow was the mortgagee of the remaining 14 units (“the minority units”) in SCC 27, which were owned by 1652030 Ontario Limited (“165”). C. BACKGROUND FACTS [7] In 2008, SCC 27 issued a special assessment of $40,000 per unit on all the units in the complex (the “2008 special assessment”). The trial judge found that there was no legitimate basis for this assessment amount and that the amount was set high enough that the minority unit owner, 165, would not be able to pay the sum and would be forced into default. Notices of Sale under Lien were issued by SCC 27 only for the minority units, even though the majority units had also not paid the 2008 special assessment. [8] In April 2009, McFlow, as mortgagee of the minority units, commenced an application for oppression against SCC 27 and James. In May 2009, the court appointed an administrator to manage SCC 27’s affairs. [9] In May 2009, James swore an affidavit that he was in possession of a $2 million GIC which he said was money paid by the majority mortgagees toward the 2008 special assessment and an earlier assessment in 2004. [10] On June 3, 2009, the administrator served a Notice of Motion to have the $2 million GIC paid into court pending a determination of its ownership. [11] On June 4, 2009, the GIC was cashed and funds were wired to Eveline’s account in the Turks and Caicos Islands (“TCI”). In his affidavit dated June 4, 2009, James swore that he was holding the money in trust for Eveline and it was never SCC 27’s property. [12] The funds were returned to Canada but James’ counsel informed the administrator that James had not personally received the $2 million and no longer had control over any of the funds in the Eveline account. [13] On June 30, 2009, the court ordered Eveline and James to pay into court all the money derived from the proceeds of the GIC. The money was not paid into court. [14] In August 2009, McFlow commenced a negligence action against its own counsel and mortgage broker for losses, which was settled for the sum of $875,000. [15] In December 2009, the administrator listed the minority units for sale. [16] In 2011, James offered to purchase the minority units and three others for a total of $10,000, which the administrator refused. In 2012, the administrator listed all the units for sale. [17] The court approved the sale and the sale was completed in August 2013. [18] In December 2013, the appellants counterclaimed for oppression against McFlow, Premium and Winberg. (Premium was a company related to McFlow, and Milton Winberg was the principal of McFlow and Premium.) [19] In May 2015, McFlow issued a statement of claim against all the defendants (including the appellants). D. THE TRIAL JUDGE’S REASONS [20] At paras. 314-16 of her reasons for decision, the trial judge held that: After Mr. James took control of SCC 27, the disarray turned into paralyzing dysfunction.… The dysfunction would ensure that no reasonable purchaser or lender would want any involvement in the Minority Units. In the end, only Mr. James would want to purchase the Minority Units, which he could do at a bargain price, leaving him in control of the entire Complex. No rational condominium corporation, unit owner, or mortgagee would want this level of dysfunction and the attendant stigma, which would cause the property value to fall.… The intent was to cause the owner, 165, and the mortgagee, McFlow, to walk away. [21] At para. 319 of her reasons, the trial judge found that: Ms. Cremer has admitted to being involved in the decision to levy the 2008 Special Assessment and to register liens on the Minority Units, as well as the decision to wire the $2 million to the TCI. Ms. Cremer did not perform those acts while fulfilling the proper course of her duties as a director of SCC 27. Rather, she used her position as a director of SCC 27 to perpetrate acts that were prejudicial to its interest and to McFlow’s. Ms. Cremer admits to participating in or directing those decisions and was instrumental to Mr. James’ ability to carry them out. She engaged in the oppression in addition to Mr. James. [22] In respect of the alleged conspiracy among James, SCC 27 and Cremer, the trial judge held, at para. 341 that, Mr. James, SCC 27 and Ms. Cremer… acted in concert, by agreement or with a common design. Mr. James was the directing and controlling mind of SCC 27. Mr. James and Ms. Cremer were at all times acting in pursuit of a common design. Whether Mr. James was instructing Ms. Cremer or Ms. Cremer was instructing Mr. James, they both had the same objectives in mind. The predominant purpose of their conduct was to cause injury to the owner and/or mortgagee of the Minority Units by eliminating or rendering valueless their interests in SCC 27. Alternatively, they used unlawful means (oppression and breach of the Condominium Act ) in circumstances where they knew or should have known that damage to McFlow was likely to result. As discussed above, their conduct caused McFlow damage. [23] The trial judge concluded that James’ actions were intended to force out McFlow’s interest in the minority units and that his “actions, and his failures, in precipitating a state of dysfunction were oppressive, or at the very least, unfairly prejudicial, because it was intended specifically to squeeze out McFlow’s interest in the Minority Units.” [24] She accepted that McFlow had not done enough due diligence before advancing and increasing loans on the mortgages on the minority units but held that McFlow was nonetheless entitled to damages for oppression from James and Cremer pursuant to s. 135 of the Condominium Act 1998, S.O. 1998, c. 19. [25] She also granted judgment for conspiracy against Cremer, Eveline and Sterling on the basis that James was the directing mind of Eveline and Sterling and used them to execute his scheme to injure McFlow. She held that the failure to pay the $2 million to the administrator was a “brazen disregard of a court order by an officer of the court.” [26] The trial judge dismissed the appellants’ argument that McFlow’s claims were statute-barred by the expiry of the limitation period. [27] At paras. 357-65 of her reasons, she held that until 2013, the only information that McFlow had about Cremer was that she was James’ employee and, from 2008, a director of SCC 27. While McFlow knew that Ms. Cremer was a director of SCC 27 when it served its Notice of Application in May 2009, she appeared to be nothing more than a nominee director acting for Mr. James…. McFlow did not know and could not have known by the exercise of reasonable diligence, that it had a claim against Ms. Cremer personally. It could not have alleged any facts to support her liability as a director. Moreover, McFlow did not know until 2013 that Ms. Cremer was a beneficiary of the McClenaghan Trust and that after Mr. McClenaghan’s death she was purportedly instructing Mr. James. [28] The beneficiaries of the McClenaghan Trust were Mr. McClenaghan’s spouse, Cremer and James’ then-spouse. According to James, he and Eveline were trustees of the trust at some points. The trial judge found that the McClenaghan Trust “raises more questions than it answers” and, even if the trust agreement were authentic and the trust legitimate, she rejected James’ argument that it held the beneficial interest in the majority units in SCC 27. [29] The trial judge ordered the appellants to pay McFlow damages in the amount of $413,595.27 and prejudgment interest of $141,199.14, calculated at the rate of 1.3 percent per annum, as provided for in the Courts of Justice Act , R.S.O. 1990 c. C.43 (“ CJA ”), which was the interest rate when the action was commenced. [30] She also ordered punitive damages in the amount of $100,000, and post-judgment interest calculated at the rate of 3 percent commencing on January 20, 2020. She further ordered the appellants to pay substantial indemnity costs of $568,292.05 to McFlow, bearing 2 percent interest, commencing on October 9, 2020. E. THE ISSUES [31] While a number of issues were raised in the appellants’ factum, at the time of the hearing, the appellants advised that the only issues to be adjudicated on this appeal are whether the trial judge erred in holding that: i. the oppression and conspiracy claims against Cremer were not statute-barred; ii. punitive damages should be awarded against Cremer; and iii. substantial indemnity costs were warranted, in addition to punitive damages. [32] The respondents cross-appeal claiming the trial judge erred in awarding interest at the rate of 1.3 percent as provided in the CJA rather than prejudgment interest at the rate of 6.5 percent, compounded monthly, which was sought by McFlow. F. ANALYSIS The First Issue: Were the Claims Against Cremer Statute-Barred? [33] The appellants submit that the trial judge erred in concluding that the claims against Cremer were not statute-barred. [34] A claim is discovered on the earlier of the day on which a party knew or ought to have known (i) that the injury, loss or damage had occurred, (ii) that it was caused by an act or omission of the person against whom the claim is made, and (iii) that a proceeding would be the appropriate means to seek to remedy it, or that a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of these matters. At this point, the two-year limitation period is triggered: Limitations Act , 2002, S.O. 2002, c. 24, Sched. B. , s. 5(1). [35] In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at para. 42, Moldaver J., writing for the Court, held that in respect of a similar provision in the New Brunswick Limitations of Actions Act , S.N.B. 2009, c. L-8.5, “a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn.” Grant Thornton was followed by this court in Gordon Dunk Farms Limited v. HFH Inc. , 2021 ONCA 681, at paras. 36-38. [36] The appellants claim the trial judge applied too high a standard to determine whether McFlow had the requisite degree of knowledge to discover a claim under the Limitations Act and did not consider whether a plausible inference of liability could be drawn. [37] They claim that in 2009, McFlow knew Cremer was James’ employee and a director at the time of the 2008 special assessment. Since Cremer was a director, McFlow could have made a plausible inference that she supported the assessment in 2009 which McFlow alleged was oppressive and involved a conspiracy, triggering the limitation period. [38] I do not agree. [39] The trial judge found that while McFlow knew Cremer was a director of SCC 27 in 2009, she appeared to be nothing more than a nominee director. It was not until 2013 that McFlow knew or could have known by the exercise of reasonable due diligence, that Cremer was a beneficiary of the McClenaghan Trust, which James claimed held the beneficial interest in the majority units, and that after Mr. McClenaghan’s death, she was purportedly instructing James. [40] Until then, any claim in oppression or conspiracy would have been founded on mere suspicion or speculation which is not sufficient to draw a plausible inference of liability: Grant Thornton, at para. 46. [41] For these reasons, the first ground of appeal fails. The Second Issue: Did the Trial Judge Err in Awarding Punitive Damages Against Cremer? [42] The appellants claim the trial judge erred in awarding punitive damages against Cremer as the only explanation for doing so was Cremer’s role in failing to have the $2 million GIC paid into court. They claim this cannot form the basis of a punitive damage award as the money was to be paid to the credit of the action the court administrator for SCC 27 was to commence and that action was never commenced. [43] As noted by the trial judge, in deciding whether to make an award of punitive damages, the question is whether the defendant’s conduct was so outrageous that punitive damages are rationally required for deterrence. Trial courts have latitude in determining punitive damages, provided the amount serves a rational purpose, namely prevention, deterrence and denunciation: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 , at paras. 94-100; Richard v. Time Inc., 2012 SCC 8, [2012] 1 S.C.R. 265 , at para. 190; Cinar Corporation v. Robinson, 2013 SCC 73, [2013] 3 S.C.R. 1168, at para. 134. [44] Appellate courts should only intervene “where there has been an error of law or a wholly erroneous assessment of the quantum” of punitive damages, that is, if the amount awarded was not rationally connected to the purposes in awarding punitive damages: Richard, at para. 190; Cinar , at para. 134. [45] The trial judge did not rely exclusively on Cremer’s role with respect to the $2 million GIC. In this case, the trial judge found that Cremer acted in concert, by agreement or in pursuit of a common design with James to cause injury to the owner and/or mortgagee of the minority units by rendering valueless their interests in SCC 27 or to use unlawful means in circumstances where they knew or should have known that damage to McFlow was likely to result. [46] She held that punitive damages were warranted to denounce and deter James’ years of oppressive conduct and James and Cremer’s dissipation of the $2 million GIC by deliberately hiding the money from the court, the administrator and creditors, knowing that a court order had been issued to pay the money into court. She rejected the appellants’ argument that the obligation to pay the $2 million into court was conditional on the administrator commencing a proceeding. As noted by the trial judge, the funds were only ever paid to the credit of the action, after being seized by the RCMP in an unrelated criminal proceeding. [47] The award of punitive damages was rationally connected to the policy objectives of deterrence and denunciation and there were adequate grounds to support the trial judge’s decision to impose punitive damages against Cremer. [48] For this reason, the second ground of appeal fails. The Third Issue: Did the Trial Judge Err in Awarding Substantial Indemnity Costs? [49] The appellants also challenge the discretionary costs award. They argue that the trial judge erred in principle by relying on the same conduct that gave rise to her award of punitive damages as the basis of her decision to award costs on a substantial indemnity scale. This, they submit, is contrary to this court’s decision in Sliwinski v. Marks (2006), 211 O.A.C. 215 (C.A.), at para. 29. [50] Since the substantive appeal is dismissed, the appellants are required to seek leave to appeal the discretionary costs award: CJA, s. 133; Gary Anthony Bennett Professional Corporation v. Triella Corp., 2019 ONCA 225, at para. 7. To grant leave, there must be “strong grounds upon which the appellate court could find that the trial judge erred in exercising his discretion”: Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. This includes errors in principle or a costs award that is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 9, at para. 27, citing Duong v. NN Life Insurance Co. of Canada (2001) , 141 O.A.C. 307 (C.A.), at para. 14. [51] The appellants have not sought leave. [52] In any event, I see no reason to interfere with the trial judge’s exercise of discretion in awarding costs as the trial judge committed no error in principle. She made numerous findings of egregious conduct by the appellants in the context of McFlow’s oppression claim and held, at para. 21 of her costs’ endorsement that: [T]he Defendants significantly lengthened the proceedings by raising every possible argument, including limitation periods, laches, election, waiver and unclean hands; failing to make reasonable admissions and serving a blanket denial in response to McFlow's detailed chronology served before trial; and filing lengthy affidavit evidence rife with self-serving editorializing, speculation and rationalization. [53] The trial judge considered the appellants’ argument, relying on Sliwinski, that an award of substantial indemnity costs would be an “unnecessary double judicial admonishment”. [54] The trial judge held that Sliwinski was distinguishable from this case as: [T]he punitive damages award and substantial indemnity costs were in relation to the same conduct; no issue was raised about the defendant’s conduct in the litigation. In this case, even if the Defendants’ oppressive conduct is sufficiently compensated by the punitive damages award, I would nonetheless find that substantial indemnity costs are warranted based on the Defendants’ conduct in the litigation. [55] On the basis of these findings of fact which are supported by the evidence, I see no error in the trial judge’s exercise of her discretion to award substantial indemnity costs. [56] For these reasons, the third ground of appeal fails. The Fourth Issue: Did the Trial Judge Err in Awarding Prejudgment Interest at the Court of Justice Act Rate Rather Than the Mortgage Rate? [57] McFlow claims the trial judge erred in awarding prejudgment interest at the CJA rate rather than the mortgage rate. [58] The party seeking an order to depart from the CJA rate pursuant to s. 130 of the CJA, has the onus to demonstrate that the CJA rate should be displaced: Metropolitan Toronto Police Widows & Orphans Fund v. Telus Communications Inc. (2008), 44 B.LR. (4th) 140 (Ont. SC), at para. 69, aff’d 2009 ONCA 111, 55 B.L.R. (4th) 12. [59] Awards of compound prejudgment or post judgment interest are generally limited to breach of contract cases where there is evidence that the parties agreed, knew, or should have known that the money would bear compound interest as damages: Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, [2002] 2 S.C.R. 601, at para. 55. Compound prejudgment or post judgment interest “may be awarded as consequential damages in other cases but there would be the usual requirement of proving that damage”: Bank of America, at para. 55. The same principles apply to interest at a rate in excess of the rate provided for in the CJA . [60] This is not a breach of contract case; accordingly, McFlow was required to prove compound interest at a rate in excess of the CJA rates as consequential damages. [61] McFlow claims that, had it been able to sell the minority units in 2009, it would have had the funds available for reinvestment. McFlow’s principal, Milton Winberg, testified that McFlow could have earned interest similar to the mortgage rate on the minority units, which was 6.5 percent per annum, compounded monthly. [62] However, the trial judge held that there was no evidence to demonstrate a reasonable probability that McFlow could earn interest at a rate of 6.5 percent compound interest other than Mr. Winberg’s bald assertion. As noted by the trial judge: “McFlow provided no evidence of the interest it was earning on other mortgage loans over the same time period.” [63] For this reason, the trial judge held that, “I am not satisfied that either party has raised a sufficient basis for departing from the applicable prejudgment interest rate under the CJA, which is the interest rate when the action was commenced, or 1.3 percent. The total amount of prejudgment interest is $141,199.14.” [64] Since (i) the onus is on the moving party to satisfy the court that the interest rate set out in the CJA should be displaced and (ii) there was no evidence as to the amount McFlow was earning on its other loans at that time, the trial judge declined to exercise her discretion to award interest at a rate higher than that provided for in the CJA . [65] Given the evidence about McFlow’s lack of due diligence in its lending business, her conclusion that further evidence was required was reasonable. I see no reason to interfere with this exercise of her discretion and for this reason, the cross-appeal fails. G. CONCLUSION [66] For the above reasons, I would dismiss the appeal and cross-appeal. [67] I would award costs of the appeal to the respondents in the amount of $23,000 all-inclusive and costs of the cross-appeal to the appellants in the amount of $2,000 all-inclusive as agreed by the parties. Released: October 25, 2021 “P.R.” “J.A. Thorburn J.A.” “I agree. Paul Rouleau J.A.” “I agree. Alexandra Hoy 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. N.T., 2021 ONCA 754 DATE: 20211025 DOCKET: C66755 Simmons, Lauwers and Pardu JJ.A. BETWEEN Her Majesty the Queen Respondent and N.T. Appellant John Hale, for the appellant Rebecca Schwartz, for the respondent Heard: October 19, 2021 by video conference On appeal from the convictions entered by Justice Michel Z. Charbonneau of the Superior Court of Justice on April 3, 2019. REASONS FOR DECISION [1] Following a judge alone trial, the appellant was convicted of one count of sexual interference and one count of assault but acquitted of sexual assault and invitation to sexual touching. All charges related to the appellant's step-daughter. [2] The appellant testified at trial and denied the incident that was the foundation for the sexual interference and sexual assault charges. Although he acknowledged physical contact with the complainant during the incident forming the subject matter of the assault charge, his version of the event raised s. 43 of the Criminal Code , R.S.C. 1985, c. C-46, as a potential defence. [3] The appellant raises two issues on appeal. [4] First, the appellant submits that the trial judge’s reasons are insufficient for several reasons. The appellant contends that the reasons fail to explain how the trial judge resolved the inconsistent versions of events, why he rejected the appellant’s evidence or set out any pathway to conviction. The reasons make only passing reference to the appellant’s evidence and fail to apply W.(D.) . [1] Further, the reasons do not address the elements of the offences or the s. 43 defence. Overall, the deficiencies in the reasons render them immune to appellate review. [5] Second, the appellant submits that the trial judge’s reasons for sentence demonstrate he intended to convict the appellant of the second count of the indictment, sexual assault, and acquit him of the more serious charge of sexual interference. [6] We do not accept these submissions. [7] Regarding the physical assault, the trial judge gave extensive reasons explaining why he accepted the evidence of the complainant and her mother and rejected the challenges to their credibility raised by the defence. Although the appellant acknowledged physical contact with the complainant during the incident forming the subject matter of the assault charge, he denied the level of angry physical force described by the complainant. Instead, he explained he intervened to prevent escalation of a confrontation between the complainant and her mother and relied on s. 43 of the Criminal Code as a defence. The mother’s evidence concerning the assault supported the complainant's evidence and undermined the appellant's account. [8] Contrary to the appellant’s submissions, the trial judge expressly adverted to W.(D.) when addressing the assault. If not explicit, it is implicit from the trial judge’s reasons that he rejected the appellant’s account of the assault because he accepted the Crown's evidence. On the complainant’s version of the assault, it was unnecessary that the trial judge go into greater detail concerning why a s. 43 defence was not available. [9] Concerning the sexual interference offence, the appellant denied that the incident described by the complainant occurred. Once again, if not explicit, it is implicit in the trial judge’s reasons that he rejected the appellant’s denial because he accepted the complainant’s testimony. Further, we are satisfied that a finding of sexual purpose is the only reasonable inference arising from the trial judge’s description of the sexual touching incident. [2] [10] The trial judge’s oral reasons were in large measure a response to the submissions that were made to him the previous day. On our review of the record, the trial judge’s path to conviction is apparent. He found guilt beyond a reasonable doubt based on a considered and reasoned acceptance of the Crown’s evidence: R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 53-55, leave to appeal refused, [2007] S.C.C.A. No. 69. [11] As to the second issue, we reject the appellant's submission that the reasons for sentence demonstrate the trial judge intended to convict of sexual assault and not sexual interference for the breast cupping incident. A fair reading of the sentencing reasons demonstrates that after initially referring explicitly to the sexual interference offence, the trial judge subsequently used the term “sexual assault” as a shorthand to describe it. As we have explained, we are satisfied that the trial judge made a finding of sexual purpose in relation to the breast cupping incident in his reasons for decision. We do not read the reference to absence of a sexual purpose in his reasons for sentence as referring to that incident. [12] Finally, we accept the Crown's submission that the acquittal on the sexual assault charge, which also related to the breast cupping incident, was patently an error in law and did not render the verdicts on the sexual interference and sexual assault counts inconsistent: R. v. Plein , 2018 ONCA 748, 50 C.R. (7th) 41. [13] Based on the foregoing reasons, the appeal is dismissed. “Janet Simmons J.A.” “P. Lauwers J.A.” “G. Pardu J.A.” [1] R. v. W.(D.) , [1991] 1 S.C.R. 742. [2] The trial judge said: However, on one occasion it was different. She has indicated she was in front of the sink and that he groped her breast, not briefly, but for several seconds he actually groped her breast and in a sexual manner.

COURT OF APPEAL FOR ONTARIO CITATION: Bobel v. Humecka, 2021 ONCA 757 DATE: 20211026 DOCKET: M52506 Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. ( ad hoc ) BETWEEN Przemyslaw Bobel Plaintiff (Moving Party) and Edyta Maria Humecka and Raymond Alexander Patten Defendants (Responding Parties) Przemyslaw Bobel, acting in person Alexander Boissonneau-Lehner, for the responding parties Heard: in writing REASONS FOR DECISION [1] By judgment released February 2, 2021, the moving party’s claim against the responding parties (his former romantic partner and her current partner) for malicious prosecution, nervous shock, false imprisonment, negligence and other collateral claims was dismissed (the “Judgment”). The trial judge subsequently ordered that the moving party pay the responding parties’ costs, fixed at $75,000, inclusive of HST and disbursements (the “Costs Order”). [2] The moving party now brings a motion in writing for: (a) leave to appeal the so-called “Ancillary Claim” portion of the Judgment; (b) an extension of time to appeal the Judgment; (c) leave to appeal the Costs Order; (d) leave to file fresh evidence on appeal; (e) if leave to file fresh evidence is granted, leave to file uncommissioned affidavit evidence. [3] The moving party does not require leave to appeal the Judgment, but he does require an extension of time to appeal, since he is out of time. [4] The factors to be considered in granting an extension of time to appeal are set out in Enbridge Gas Distribution Inc. v. Froese , 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The court must consider: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay; (c) any prejudice to the responding parties caused, perpetuated, or exacerbated by the delay; and (d) the merits of the proposed appeal. [5] Accepting the moving party’s unsworn “affidavit” in support of the motion at face value, there is no evidence that the moving party formed a bona fide intention to appeal before he filed his motion on May 26, 2021. While the delay is not particularly lengthy (just under three months), the moving party has provided no explanation for it. [6] Considering the last two factors together, we find the appeal has no merit and it would be prejudicial to the responding parties to continue the stay of the Costs Order and to subject them to further costs in resisting an unmeritorious appeal. The trial judge gave thorough and careful reasons, grounded in large measure in his rejection of the moving party’s evidence as not credible or reliable and his acceptance of the responding parties’ evidence. Excusing the delay and permitting the moving party to pursue an unmeritorious appeal would cause further prejudice to the responding parties. We dismiss the motion for an extension of time to appeal. [7] We also dismiss the motion for leave to appeal the Costs Order. Again, the trial judge considered the applicable principles pertaining to costs. The award was reasonable having regard to the length of the trial (8 days), the conduct of the moving party that needlessly extended the action, thereby increasing the costs, the unfounded allegations against the responding parties’ counsel, and the responding parties’ offer to settle. The moving party has identified no error in principle in the award of costs. The award itself is entitled to deference and is reasonable. [8] The motion is dismissed, with costs to the responding parties fixed at $2,500, inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “B. Zarnett J.A.” “Wilton-Siegel J.”

COURT OF APPEAL FOR ONTARIO CITATION: Echelon Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763 DATE: 20211026 DOCKET: M52789 Miller J.A. (Motion Judge) BETWEEN Echelon Environmental Inc. and Robert Rainford Responding Parties and Glassdoor Inc. Responding Party and John Doe Moving Party Julia Lefebvre, for the moving party Christine L. Lonsdale, for the responding parties, Echelon Environmental Inc. and Robert Rainford Jonathan G. Colombo and Amrita V. Singh, for the responding party, Glassdoor Inc. Heard: October 7, 2021 by video conference ENDORSEMENT [1] John Doe brings this motion to extend the time to serve and file a Notice of Appeal from an order of Dow J., dated June 7, 2021, which denied his standing to appear as an anonymous party and make submissions on an Anti-SLAPP motion. [2] For the reasons that follow, the motion is dismissed. Background [3] An anonymous poster, identifying as a former employee of Echelon, posted an online review of Echelon on the Glassdoor website. Echelon responded by bringing a defamation action against Glassdoor and the anonymous poster, referred to as John Doe. The identity of John Doe has not been revealed to either Echelon or the courts. [4] Glassdoor took the position that Doe’s post was expression relating to a matter of public interest, protected by s. 137.1(3) of the Courts of Justice Act , R.S.O. 1990, c. C.43 . Relying on this section, Glassdoor brought an Anti-SLAPP motion to have Echelon’s action dismissed. [5] Counsel for Doe advised in March 2021 that she intended to file a factum and make oral submissions on the Anti-SLAPP motion. Echelon objected. [6] The parties appeared before Dow J. on June 7, 2021. Dow J. was unable to hear the substance of the Anti-SLAPP motion that day, and he adjourned it to July 28. He was able to deal with two preliminary matters: a sealing order and the issue of Doe’s right of participation. Dow J.’s endorsement noted that Doe had not filed a Notice of Intent to Defend, and ruled that Doe had no standing and could not be heard from in the Anti-SLAPP motion, “subject to any formal, on the record appearance by counsel for the John Doe and any step taken in the litigation as a result.” Thirty days elapsed, and Doe did not appeal. [7] The Anti-SLAPP motion was returned before Pollak J on July 28. Counsel for Doe appeared, intending to reargue the issue of standing. However, Pollak J. adjourned all matters related to the Anti-SLAPP motion to Monday, August 16, 2021, to be heard by Dow J. [8] On August 13, sixty-seven days from the date of Dow J.’s order denying Doe standing to appear at the Anti-SLAPP motion, Doe served a motion record seeking to extend his time to serve and file a Notice of Appeal. Counsel for Doe did not seek an adjournment of the Anti-SLAPP motion itself, which proceeded as scheduled on August 16, and was ultimately dismissed by Dow J. the day before this motion was heard. Glassdoor’s counsel advised this court that it intends to appeal the dismissal. Doe continues to press his motion to extend time to serve and file a Notice of Appeal from Dow J.’s order denying him standing. Analysis [9] This court will extend the time to serve and file a Notice of Appeal if an extension is required by the justice of the case: 2363523 Ontario Inc. v. Nowack , 2018 ONCA 286, at para. 4. The court will generally consider the following factors: 1. Whether the appellant formed a bona fide intention to appeal within the relevant time period; 2. The length of delay in filing and the explanation for it; 3. Any prejudice that would be caused to the responding party by allowing the motion; 4. The merits of the proposed appeal. See Howard v. Martin, 2014 ONCA 309, 42 R.F.L. (7th) 47, at para. 26; Leighton v. Best , 2014 ONCA 667, 20 C.B.R. (6th) 326, at para. 1. [10] No one factor decides the outcome. All factors must be considered, but how they bear on what justice requires is context-specific: see Enbridge Gas Distribution Inc. v. Froese , 2013 ONCA 131 , 114 O.R. (3d) 636, at para. 15; Monteith v. Monteith , 2010 ONCA 78 , at para. 20. Intention to appeal [11] Counsel for Doe argues that he formed an intention to appeal very shortly after “appreciating the finality of Dow J.’s decision.” [12] Counsel for Echelon argues that the finality of Dow J.’s decision was obvious on its face, and Doe waited to appeal as part of a tactical decision to make another attempt at getting a standing order from another judge. It was not until the collateral attack failed, and Doe realized that the motion would be returned before Dow J., that Doe decided to proceed with the appeal. Doe admits in his written submissions to this court that he only moved to appeal after “it was clear that Justice Dow’s decision could not be challenged at the new hearing” before Pollak J. [13] I agree that Dow J.’s order was clearly final on its face. Dow J.’s order states that if Doe did not identify himself, he would have no standing and no right of participation. Nothing that happened subsequently could have caused Dow J.’s order to “crystalize” at a later date, as Doe’s counsel contends. The actions of Doe given the obviousness of the finality of Dow J.’s order and the absence of any change of circumstances suggest that Doe had no intention to appeal until well after the time period had expired, and that his delay was the result of a litigation strategy that failed. [14] Even on Doe’s version of events, he did not form an intention to appeal during the relevant period. Doe claims to have only realized the finality of the order after Pollak J.’s adjournment, several weeks after the deadline to appeal had expired. Therefore the only intention he could have formed during the period before the deadline expired was an intention to challenge Dow J.’s order at the hearing before Pollak J., which is not the same as an intention to appeal: see, by analogy, Cunningham v. Hutchings , 2017 ONCA 938, at paras. 13-16. The length and explanation for the delay [15] The 67-day delay is not long, but Doe’s explanation for it is weak. His explanation rests on his misunderstanding as to whether Dow J.’s order was final. The salience of the explanation is diminished by the order’s obvious finality. Prejudice to the Responding Parties [16] In general, this court considers only prejudice caused by the delay in filing a notice of appeal, not prejudice that could be caused by the outcome of the appeal: 40 Park Lane Circle v. Aiello, 2019 ONCA 451, at para. 6. But in this case, the two considerations merge, and a proper account of the “justice of the case” requires me to have regard to both. Echelon occupies a far more difficult litigation position because of the delay than it would have occupied had Doe filed in a timely manner. [17] Had Doe had brought his appeal in a timely manner, the Anti-SLAPP motion would have been adjourned, or Doe’s appeal expedited, so that the question of standing would have been resolved prior to the hearing of the Anti-SLAPP motion. [18] Instead, Echelon will have to litigate Glassdoor’s appeal of the Anti-SLAPP dismissal on its merits, while simultaneously litigating an appeal of Doe’s standing. If Echelon prevails against Glassdoor but Doe is successful, the Anti-SLAPP motion will have to be heard again on a new record involving Doe – effectively invalidating the victory against Glassdoor. Merits of the Appeal [19] Doe argues that Dow J. made errors of law (1) in determining that Doe had no standing, and (2) in providing insufficient reasons. [20] Doe asserts private interest standing as a named defendant in the action, and argues that the Anti-SLAPP motion (or the appeal of it) could affect Doe’s rights by resulting in the action being dismissed. [21] Doe and Glassdoor argue that s. 137.1 serves to protect anonymous speech, and that part of protecting anonymous speech is keeping it anonymous in the context of a defamation action. [22] I was not taken to any authority for the proposition that s. 137.1 modifies the general obligation that parties who wish to participate in litigation must identify themselves both to the court and to those against whom they are asserting rights. On its face, s. 137.1 does not provide for this. Section 137.1 protects a subset of speech not by maintaining its anonymity, but by providing an expedited procedure for having the action dismissed. [23] The claim made is not only novel, but seems contrary to well-established principle, and without support in law. [24] Doe is on slightly firmer ground with the argument that the reasons that were provided were insufficient. The reasons were brief and conclusory. But to be fair to the motion judge, the ruling he was asked to make was obvious. The difficulty on this motion is that I have no evidence of what argument the motion judge was invited to consider. Doe filed no materials and there is no transcript of the hearing. Even assuming the argument was the same as the one outlined before me – that the Anti-SLAPP provisions protect the anonymity of speech – it is nothing more than an assertion and need not have detained the motion judge. The justice of the case [25] There are no further considerations that have not already been addressed. Doe made a strategic procedural choice. That failed, and when Doe decided to appeal, he did so at a time and in a manner that - if successful - would result in significant expense and repetition of matters already litigated. On balance, the justice of the case does not require this court to grant an extension. Conclusion [26] The motion for leave to extend time is dismissed. The responding party is entitled to its costs of the motion. If the parties are unable to settle the quantum among themselves, I will receive brief submissions not exceeding three pages in addition to a bill of costs, to be filed with the court within 14 days of the date of this decision. “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kerner v. Information Builders (Canada) Inc., 2021 ONCA 756 DATE: 20211026 DOCKET: C68548 Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. ( ad hoc ) BETWEEN David Kerner Plaintiff (Respondent) and Information Builders (Canada) Inc. Defendant (Appellant) Hendrik Nieuwland, for the appellant Philip R. White and Jason Wong, for the respondent Heard: October 18, 2021 by video conference On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated July 16, 2020, with reasons reported at 2020 ONSC 2975. REASONS FOR DECISION [1] The sole issue on this appeal is whether the trial judge erred in awarding damages for wrongful dismissal based on a reasonable notice period of eight months. [2] The trial judge’s assessment of reasonable notice is entitled to deference and should not be disturbed unless it is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact. If the trial judge erred in principle, we may substitute our own figure, but we should do so sparingly if the trial judge’s award is within an acceptable range, despite the error in principle: Holland v. Hostopia.Com Inc. , 2015 ONCA 762, at para. 44. [3] The appellant submits that the trial judge made two errors in principle. First, she erred by having regard to the respondent’s prior service with the employer. That service (16 ½ years) ended when the respondent voluntarily resigned in 2013 to take up other employment. When the latter employment ended, the respondent was unemployed for about a year before returning to work with the appellant in January 2017. He was dismissed without reasonable notice in September 2018. [4] Second, the appellant submits that the trial judge erred by having regard to the time it took the respondent to find new employment after his termination. [5] Assuming these were errors in principle, we conclude that a notice period of eight months for this employee in these circumstances was reasonable. [6] The trial judge had regard to the Bardal principles. She adverted to the respondent’s age (56), the fact that his work experience was almost entirely in the IT/Enterprise sector, his recent employment with the appellant as Regional Sales Manager in New York, and his relatively high compensation package of approximately $300,000 per year. The trial judge could also have considered the fact (which she mentioned in her reasons) that before returning to the appellant’s employ in 2017, it had taken the respondent almost a year to find employment with the appellant after being terminated by his previous employer. This was a relevant indicator of the time it would reasonably take the respondent to find comparable employment. [7] Having considered the cases referred to by both parties, we are not satisfied that eight months was outside an acceptable range in the circumstances of this case. To state the obvious, the cases turn on their own facts. That said, the cases mentioned in the appellant’s factum are from jurisdictions other than Ontario and decisions involving other marketplaces must be viewed with some caution. The cases identified by the respondent, which include authorities from Ontario as well as other provinces, indicate that some senior managers in their fifties, drawing salaries lower than the respondent’s, with less than three years of service, have been awarded notice in the range of 6 to 12 months. [8] The appeal is dismissed with costs to the respondent in the agreed amount of $9,000, inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “B. Zarnett J.A.” “Wilton-Siegel J.”

COURT OF APPEAL FOR ONTARIO CITATION: N. v. F., 2021 ONCA 766 DATE: 20211026 DOCKET: C68926 Lauwers, Hourigan and Brown JJ.A. BETWEEN N. Applicant (Respondent) and F. Respondent (Appellant) Fareen L. Jamal, Fadwa Yehia and Edward C. Conway, for the appellant Bryan R.G. Smith, Lindsey Love-Forester and Andrew Lokan, for the respondent Estée Garfin and Hera Evans, for the intervener Attorney General of Ontario Caterina E. Tempesta and Sheena Scott, for the intervener Office of the Children’s Lawyer Heard: January 21, 2021 by video conference On appeal from the order of Justice Clayton Conlan of the Superior Court of Justice, dated December 15, 2020, with reasons reported at 2020 ONSC 7789. COSTS ENDORSEMENT [1] The respondent was entirely successful on the appeal. He seeks his costs on a full indemnity basis in the amount of $99,500, all-inclusive. This figure reflects a reduction of almost half from the actual time incurred by the respondent’s counsel and is reflective of the actual amount billed to and paid by the respondent for the appeal. [2] The appellant submits that each party should bear their own costs of the appeal. In any event, she argues that the costs incurred by the respondent are excessive and beyond the reasonable expectations of the parties. She notes that her costs of the appeal on a partial indemnity basis were approximately $48,500. Further, she submits that she has limited means to pay such a cost award. [3] We are not satisfied that there are special circumstances in this case that warrant either an award of costs on a higher scale or an order that each party should bear their own costs. In our view, the costs should follow the result. Having regard to the parties’ submissions and their reasonable expectations, we order that the appellant pay to the respondent his costs of the appeal in the all-inclusive sum of $50,000. “P. Lauwers J.A.” “C.W. Hourigan J.A.” “David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Jarrett, 2021 ONCA 758 DATE: 20211026 DOCKET: C65726 Watt, Roberts and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Melville Jarrett Appellant Riaz Sayani, for the appellant Amanda Hauk, for the respondent Heard: April 19, 2021, by video conference On appeal from the conviction entered by Justice Robert B. Reid of the Superior Court of Justice on March 7, 2018. Zarnett J.A. : INTRODUCTION [1] The appellant appeals his convictions for assaulting a police officer; failing to comply with a recognizance; possession of cocaine, oxycodone [1] , and hydromorphone for the purpose of trafficking; and possession of proceeds of crime. The appeal centres on the trial judge’s refusal [2] to stay charges or exclude evidence as a result of what the appellant contends were breaches of his protected rights under the Canadian Charter of Rights and Freedoms . [2] The trial judge dismissed the appellant’s application to stay proceedings on the basis that excessive force was used by police when he was arrested, thus violating his rights to life, liberty and security of the person, and to not be subjected to cruel and unusual punishment, under ss. 7 and 12, respectively, of the Charter . The appellant argues that the trial judge misallocated the burden of proof relating to whether excessive force was used, fatally tainting his conclusion that there was no Charter breach. He submits that the question of whether there was a violation of these Charter rights should be re-heard, and that the convictions for assaulting a police officer (which followed from the same evidence considered on the stay application) and breach of recognizance should be set aside and a new trial ordered. [3] The appellant also submits that the trial judge, after finding that there had been a violation of the appellant’s right, following his arrest, to retain and instruct counsel without delay under s. 10(b) of the Charter , erred in refusing to exclude evidence discovered by the police at the scene of the arrest. Since that evidence was the basis of the convictions for drug trafficking and possession of proceeds of crime, he asks that those convictions be set aside and acquittals entered. [4] I would not give effect to the argument that the trial judge erred in his approach to whether there was a breach of the appellant’s ss. 7 and 12 rights. Contrary to the appellant’s argument, reading the trial judge’s reasons as a whole, he did not actually decide the matter by applying an incorrect burden of proof. He accepted the evidence proffered by the Crown, considered whether the force used was reasonable, and concluded that the force used was not excessive in the circumstances. His findings show that he concluded that what was the Crown’s evidentiary burden was satisfied. [5] I would, however, allow the appeal from the drug trafficking and proceeds of crime convictions and substitute acquittals on those charges. As the trial judge noted, there was little dispute about the facts relevant to the s. 10(b) breach. The trial judge found that there had been a breach of the appellant’s right to counsel since although the police had made an initial effort — leaving a voicemail message with the appellant’s counsel of choice — they did not follow up or make any further efforts, leaving the appellant with no contact with counsel for 30 hours following his arrest, 20 of which he spent handcuffed to a hospital bed. As the trial judge also noted, whether exclusion of evidence was warranted turned on how the law applied to those facts. In my view, the trial judge’s analysis of the factors relevant to exclusion of evidence, set out in R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, was legally flawed. Performing the correct analysis, the evidence seized at the scene of the arrest ought to have been excluded under s. 24(2) of the Charter as a remedy for the s. 10(b) breach. BACKGROUND A. The Arrest [6] On June 25, 2015, three plainclothes Niagara Regional Police detectives in an unmarked police car pulled up next to the appellant’s vehicle at an intersection in St. Catharines. The officers saw the appellant using a cell phone. They directed the appellant to pull his vehicle over to the side of the street. The appellant complied. Meanwhile, a fourth officer, in uniform, arrived at the scene. [7] One of the officers requested identification from the appellant and the three passengers in his vehicle. The appellant provided his driver’s licence and registration in response to the request. Two of the officers performed database searches and learned that the appellant was on bail and a term of his release was to not possess a cell phone if it had not been registered with the Niagara Regional Police. As the cell phone had not been registered, the appellant was advised by one of the officers that he was being placed under arrest, and was asked to get out of his car. [8] As the trial judge noted, the circumstances of the arrest from that point forward were the main factual dispute between the parties. He described the evidence of the appellant and that of the police officers as “diametrically opposed.” [9] The appellant testified that as he got out of the car, he stumbled. A fanny pack he was wearing was caught in the seatbelt and he reached around to take it off and threw it back into the car. As he stumbled out of the car, the police officers did the following: administered a knee strike to his chest, causing excruciating pain; administered a knee strike to his head; wrestled him to the ground; tasered him three times; held him on the ground; and handcuffed him. He denied ever resisting the police or fighting with them. [10] The appellant’s girlfriend, Stacy Lamb, who was one of the passengers in his car, also testified. The trial judge noted that Ms. Lamb “did not see exactly what happened”. She said that the appellant stumbled as he got out of the car, that he fell into one of the officers who hit him multiple times, including a knee strike to the chest, and that the appellant was tasered three times and pepper sprayed two or three times. She believed the police incapacitated the appellant for no reason. She said that she had asked the appellant for the fanny pack before the officer returned to the car to tell the appellant he was under arrest, and that when he gave it to her, she tried to hide it so that the police would not find it. She testified that she had given an incorrect statement to the police on the day of the arrest, to the effect that the appellant had thrown it at her and that she did not know what to do with it and had panicked. [11] The police officers gave a different version of the events. [12] Det. DiFranco was the officer who took the licence and registration from the appellant and returned to arrest him. He described the appellant as aggressive and confrontational. He testified that as the appellant was getting out of his car, he reached for a fanny pack around his waist, leading Det. DiFranco to reach for it as well due to safety concerns, as he did not know what it contained. Det. DiFranco administered a knee strike to the appellant’s upper body area to create distance between them. [13] Cst. Poirier, the officer in uniform, was also at the appellant’s vehicle when he was asked to get out of it. He described the appellant as argumentative and “extremely hostile”, and also testified that he reached for the fanny pack while getting out of the car. Cst. Poirier grabbed the appellant’s left arm to arrest him, at which point the appellant began to struggle. Cst. Poirier applied knee strikes to the appellant’s leg to bring him to the ground, so as to handcuff him and complete the arrest. The appellant broke free, got up, charged at Cst. Poirier, headbutted him and put his hands around Cst. Poirier’s waist in a “bear hug”, and they fell back onto the road. [14] Det. DiFranco and Cst. Poirier struggled with the appellant across the street, over a curb and sidewalk, and into a flower bed. Both described the arrest as one of, or the most, difficult they had ever had to make. [15] Det. Sgt. Knevel was at the scene initially focussing on the passengers in the appellant’s vehicle. He observed the struggle to subdue the appellant and joined it to assist. He described the appellant fighting violently to get away. [16] According to the three officers, when the knee strikes and wrestling did not bring the appellant under control to allow them to apply handcuffs, a decision was made to use a taser. Cst. Poirier deployed it three times within about 30 seconds. All of the officers testified that no pepper spray was used. [17] The evidence of the three officers was in part confirmed by the fourth officer at the scene, Det. Cunningham. The trial judge noted he was minimally involved in the interaction with the appellant but confirmed the “dynamic nature of the situation and the struggle between the officers and [the appellant]”. [18] Mr. Eaton, a civilian who observed the confrontation, also testified. He saw an individual resisting efforts by the police to hold him down, and pushing himself up off the ground even after a taser was used. The trial judge considered his evidence to be “generally consistent with that of the police officers, although his estimate that the entire struggle took 1.5 hours was grossly at odds with what was otherwise described as a brief but dynamic interaction.” B. The Opportunity to Retain and Instruct Counsel [19] As the trial judge noted, there was relatively little dispute about the facts on this issue. [20] The appellant was advised of his right to counsel upon his arrest. He requested the opportunity to contact counsel, whom he identified by name. [21] The appellant was then taken to the hospital for medical attention as a result of the circumstances of his arrest. He remained there, in police custody, handcuffed to his bed, for about 20 hours. He had no contact with counsel, and was not offered the opportunity to contact counsel from the hospital, although there was no health reason that would have prevented him from having that contact. [22] The appellant only had contact with counsel sometime after being returned from the hospital to the police station or courthouse. The trial judge accepted that this occurred about 30 hours after the arrest. [23] Although the appellant asked the police for the opportunity to consult counsel at the time of his arrest, the only step taken to facilitate that was Det. DiFranco leaving a voicemail message for the appellant’s counsel after the detective returned to the police station, about an hour and a half after the arrest. The police did not tell the appellant they had made this call, or follow up when the call to counsel was not returned. Nor did the police make any further efforts to facilitate contact with counsel for the entire time the appellant was at the hospital, or until they facilitated contact from the police station or courthouse some 30 hours after the arrest. [24] The appellant was not asked for nor did he give any statement to the police prior to contacting counsel. C. The Fanny Pack [25] The police recovered the fanny pack at the scene. After the appellant’s arrest, it was searched. The fanny pack contained, among other things, 13 grams of cocaine, 40 oxycodone pills and 25 hydromorphone pills, and $125 in cash. THE DECISIONS OF THE TRIAL JUDGE A. The Trial Judge’s Decision on the Charter Issues [26] The appellant applied for a stay of proceedings or that evidence be excluded on the basis of breaches of his Charter rights. He asserted that his rights under ss. 7 and 12 of the Charter were infringed when the arresting officers used excessive force, and that his rights under s. 10(b) of the Charter were infringed when he was not allowed to contact counsel for about 30 hours after the arrest. [27] The trial judge stated that: “It is undisputed that [the appellant] bears the onus of establishing any Charter violation on the balance of probabilities.” [28] Dealing with the issue of excessive force, the trial judge referred to ss. 7 and 12 of the Charter and observed that “[i]t is trite to say that a section 7 Charter breach will be established where excessive force is used in arresting a person.” He noted that s. 25 of the Criminal Code , R.S.C. 1985, c. C-46 authorizes the police to use as much force as is necessary when lawfully arresting a person and “case law also supports the use of reasonable force to maintain the state of being under arrest.” He identified the “key question” after examining all the circumstances to be “what amount of force was necessary and whether the actual force used was excessive.” He referred to a list of factors from case law relevant to determining whether force used was reasonable or necessary in the circumstances. [29] The trial judge found the appellant’s evidence that he did not resist arrest to be “inconsistent with the preponderance of evidence.” He found that a struggle ensued immediately outside the driver’s door of the appellant’s vehicle, and that even if there was an inadvertent stumble and a painful first knee strike, it was not reasonable to conclude that the appellant was compliant with subsequent efforts to arrest him. He accepted the evidence of the police officers concerning the struggle, and found it was supported by the evidence of Mr. Eaton. He did not consider the evidence of Ms. Lamb to be helpful to the appellant for various reasons relating to its reliability, including that Ms. Lamb had a limited view of the scene and an ongoing personal relationship with the appellant. He concluded that the appellant was in a physical condition “to have represented a threat to the police officers, and I accept their evidence that it was not possible to physically subdue him despite the best efforts of three of them until the Taser was applied.” [30] He stated that the appellant did not satisfy “his onus of proving on a balance of probabilities that excessive force was used against him by the police. I find that the police used only the force necessary to effect the arrest in the circumstances. Therefore, there was no breach of [the appellant’s] section 7 or section 12 Charter rights.” [31] On the question of whether the appellant’s s. 10(b) right was infringed, the trial judge began by noting that the right had an informational and an implementational component, both aspects of which were to be provided immediately. He held that the implementational component was engaged when the appellant requested the opportunity to consult with a specific lawyer. It was reasonable for Det. DiFranco to assist by leaving a message for the lawyer, but not reasonable for the police to consider the matter ended there, leaving the appellant in the hospital for almost a day without being afforded the opportunity to contact counsel. Further efforts were required and were not taken. There was no evidence that proper arrangements could not have been made to facilitate contact from the hospital. He found that the appellant’s s. 10(b) right was violated. [32] Although the fanny pack was recovered at the scene of the arrest before the s. 10(b) breach occurred, he was satisfied that the breach that followed the arrest was part of the same transaction or chain of events that included the seizure of that evidence, and the temporal connection between the two was not too remote. Therefore, he found that the precondition to the exclusion of the fanny pack evidence under s. 24(2) of the Charter – that the evidence was “obtained in a manner” that infringed or denied Charter rights – had been met. [33] However, the trial judge rejected the claim that the s. 10(b) breach justified the exclusion of the fanny pack evidence recovered at the scene, under s. 24(2) of the Charter, because he was not satisfied that admitting the evidence would bring the administration of justice into disrepute. [3] [34] In considering whether admitting the evidence would bring the administration of justice into disrepute, the trial judge followed the method of analysis set out in Grant , at paras. 72-86, which requires consideration of the seriousness of the Charter -infringing state conduct, the impact of that conduct on the Charter -protected interests of the accused, and society’s interest in an adjudication on the merits. [35] The trial judge found the breach “arguably inadvertent”, but “not trivial”, and that the “serious nature of the breach militates against the admission of the evidence … while its apparently inadvertent nature militates toward admission of the evidence.” He considered that this factor did not clearly require the exclusion of evidence. He found the breach had “little practical effect” as the appellant was aware of why he was arrested and was not requested to give a statement, and even if he had contacted counsel, the search would have continued and the fanny pack would have been found. He considered that the public interest would not be offended by the admission of evidence under this factor. And he found that the exclusion of relevant evidence would have rendered the trial unfair from the public’s perspective, favouring the admission of the evidence. He concluded that the admission of the evidence would not bring the administration of justice into disrepute in the eyes of a reasonable person informed of all the relevant circumstances and the values underlying the Charter . B. The Convictions [36] After the Charter applications were dismissed, the drug trafficking, possession of proceeds of crime, and breach of recognizance charges proceeded with an agreed statement of facts. The agreed facts included that the contents of the fanny pack were in the appellant’s possession, that the contents included oxycodone and hydromorphone that he sold from time to time, that he had a cell phone in his possession, that he knew he had an obligation to ensure any cell phone in his possession was registered with the Niagara Regional Police and that this cell phone was not, and that the cash in the fanny pack included money from cocaine sales. [37] The charge of assaulting a police officer — Cst. Poirier — proceeded on the basis of the evidence in the Charter application, with further submissions. The trial judge repeated the findings made in his Charter decision. He directed himself that it was not simply a case of preferring the evidence of the officers to that of the appellant and Ms. Lamb. Applying R. v. W.(D.) , [1991] 1 S.C.R. 742, he concluded that the evidence of the appellant was not believable, and that it did not raise a reasonable doubt. He then considered whether on the evidence he did accept, the appellant’s guilt was proven beyond a reasonable doubt. He found that the appellant had applied force — a bear hug and headbutt — to Cst. Poirier, in the course of resisting lawful arrest by the police. [38] As a consequence, the trial judge entered the convictions appealed from. [39] The trial judge sentenced the appellant to 25 months in custody on the drug trafficking charges (counts 2, 3, and 4), two months concurrent on the proceeds of crime charge (count 9), one month consecutive for breach of recognizance (count 10), and three months consecutive for assaulting a police officer (count 1). Various ancillary orders were also made. THE ISSUES [40] The appeal raises the following issues: a. Did the trial judge err in failing to exclude the fanny pack evidence as a remedy for the breach of the appellant’s right under s. 10(b) of the Charter ? b. Did the trial judge misallocate the burden of proof as to whether excessive force was used in considering whether the appellant’s ss. 7 and 12 rights under the Charter were breached, and if he did, should the curative proviso be applied? ANALYSIS A. The Section 10(b) Issue [41] Section 10(b) guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”. Where, upon being informed of the right, the detained person exercises it, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42. [42] The appellant exercised his s. 10(b) right by expressing the desire to speak to counsel immediately upon his arrest. The police breached the duty to immediately provide him with a reasonable opportunity to speak to counsel. The single message that was left with counsel, without any follow-up, did not actually provide an immediate opportunity for the appellant to speak to counsel. No such opportunity was provided for 30 hours. Nor was the single message, without any follow-up, reasonable, judged in all of the circumstances. The trial judge appropriately observed that it was unreasonable for the police to consider the single message sufficient and the “matter ended there” − further efforts were required. Yet the police took none. They did not explore whether there were other means of making contact with the counsel the appellant had specified. Nor was the appellant told that a message had been left with the counsel he had specified, or that it had not been answered. Thus, he was not given the opportunity to provide other contact information for that counsel if he had it, or to specify another counsel who might be more immediately responsive. [43] There are a number of ways in which the police may facilitate a detainee’s right to immediate contact with counsel. Where the police assume the responsibility of making first contact, rather than providing the detainee with direct access to a phone or internet connection, they must be taken to have “assumed the obligation to pursue [the detainee’s] constitutional right to [access counsel] as diligently as she would have”: R. v. O’Shea , 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay , 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 29-33. “Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing”: Doobay , at para. 30. In this case, where the police undertook to contact a lawyer on the appellant’s behalf, it was unreasonable for them to have left a single voicemail and ended their efforts there. [44] Although there was no causal connection between, on the one hand, the discovery of the fanny pack and its contents, and on the other hand, the s. 10(b) breach, there was, as the trial judge appropriately found, a sufficient temporal connection to consider the evidence to have been obtained in a manner that infringed a Charter right within the meaning of s. 24(2): R. v. Pino , 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; R. v. Rover , 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35. [45] I accept the argument of the appellant that, against the backdrop of this breach, the trial judge erred in failing to find that “having regard to all circumstances, the admission of [the evidence] in the proceedings would bring the administration of justice into disrepute” within the meaning of s. 24(2), and therefore in failing to exclude the fanny pack evidence. Although the trial judge referenced the three-prong test articulated in Grant to assess this question, he made legal errors in its application, leading to an unreasonable determination. Appellate intervention is therefore warranted: R. v. McGuffie , 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. In fairness to the trial judge, he did not have the benefit of this court’s more recent decisions on the Grant analysis relating to s. 10(b) breaches. [46] The first Grant factor is the seriousness of the Charter -infringing state conduct. On this factor, the trial judge’s findings were equivocal. He referred to the breach as “not trivial”, and in one passage noted the “serious nature of the breach”. But he also referred to the breach as “inadvertent” or “arguably inadvertent”, because there had been an initial attempt to contact counsel. Because of this latter characterization of “inadvertent”, he held that this factor did not clearly require the exclusion of the evidence. In my view, the trial judge made two interrelated errors in coming to that conclusion. [47] First, the breach ought not to have been viewed as anything other than serious, given the extent the police conduct departed from the content of the appellant’s constitutional right. The duty of the police was to immediately provide the appellant with a reasonable opportunity to speak to counsel. Viewed from that perspective, the breach was very substantial – the delay in providing the opportunity to speak to counsel was about 30 hours. [4] [48] Second, although the breach was arguably inadvertent — that is, not intentional and there was no evidence the delay was caused by a systemic practice — the circumstances did not take the case out of the serious breach category. The single, unsuccessful attempt to contact counsel referenced by the trial judge pales in comparison to the length of time over which the police failed to take any further steps to fulfill their duty. Indeed, immediately after describing the breach as “arguably inadvertent”, the trial judge noted that after their initial attempt to contact counsel, “[n]o officer made any further attempt to either contact counsel, to ascertain whether counsel had contacted [the appellant], or to assist [the appellant] with contact from the hospital.” The police are expected to comply with the Charter . The absence of evidence that the police’s failure to comply with the Charter was systemic is not a mitigating factor when assessing the seriousness of the breach: McGuffie , at para. 67. [49] In R. v. Noel , 2019 ONCA 860, the fact that a police officer left a message with duty counsel without following up to ensure contact occurred did not attenuate the seriousness of a s. 10(b) breach, and was viewed by this court as part of “a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay”: at para. 32. In R. v. Pileggi , 2021 ONCA 4, 153 O.R. (3d) 561, this court concluded that a three-hour delay in providing the opportunity to consult counsel, resulting from “collective negligence … in allowing the appellant’s s. 10(b) rights to fall through the cracks” was a serious breach even though a police officer not only contacted duty counsel, but kept the accused informed of the efforts to engage counsel so that he was not “left to languish alone interminably”: at paras. 114, 119 and 124. [50] In this case, the sheer length of the delay, and the fact that over that lengthy period, nothing was done to inform the appellant that any effort to contact counsel was made, or to follow up on the contact, should have led the trial judge to conclude that the breach was serious and favoured exclusion of the evidence. [51] Moreover, the trial judge erred in his analysis of the second Grant factor, the impact of the breach. He viewed the breach as one that had little practical effect, as the appellant was aware of the reasons for his arrest, was not requested to give a statement, and the search and seizure of the fanny pack would have happened anyway. [52] Although the right to immediately consult counsel exists in part so that the accused can obtain advice about self-incrimination and the legality of searches, it extends to considerations beyond these, including obtaining reassurance and advice about how long detention may last and how liberty may be regained. “The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated”: Rover , at para. 45; Noel , at paras. 22-26. Holding a person without any explanation for why they cannot access counsel or any indication of when that might occur compromises their security of the person: Rover , at para. 46. [53] If the police had taken a statement or otherwise obtained evidence as a direct result of the s. 10(b) breach, that may have made the impact of the breach even more significant. But neither the fact that the police do not take a statement from the arrested person while violating the right to counsel, nor that there is no causal connection between the breach and evidence discovered, means that the breach will always lack a significant negative impact on the appellant’s Charter -protected rights: Rover , at paras. 43-47. The impact must be considered given the nature of the interests protected by the right to counsel, and the length of delay in providing it: Noel , at para. 27. [54] In Rover , this court considered the impact on the accused to be serious because he was held for almost six hours “without any indication of when he might be allowed to speak to someone”: at para. 46. [55] Here, the appellant was without the benefit of the immediate right to counsel, or any indication of when he might be allowed to speak to someone, for about 30 hours, 20 of which he spent handcuffed to a hospital bed. The trial judge failed to consider all of the interests the appellant’s immediate right to counsel is to protect in his evaluation of the impact of this lengthy breach. He placed undue emphasis on the lack of a causal connection between the seizure and search of the fanny pack and the s. 10(b) breach, and on the fact that the police did not take a statement. Moreover, his observation that the appellant knew why he was arrested was, with respect, beside the point. The appellant was entitled to consult counsel; he was not required to be his own legal adviser when he wanted to speak to a lawyer. [56] The trial judge’s conclusion that the second Grant factor did not favour exclusion is accordingly flawed. It did favour exclusion. [57] The trial judge correctly considered that the third Grant factor, the effect of excluding relevant reliable evidence, here pulled in favour of admission of the evidence. However, a proper analysis of the first two factors pulls strongly in favour of exclusion, and makes this “one of those cases in which the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case”: Rover , at para. 49. [58] The fanny pack and its contents ought to have been excluded. I would accordingly allow the appeal and quash the convictions on counts 2, 3, 4, and 9, and substitute acquittals on those counts. B. The Excessive Force Issue [59] The appellant argues that the trial judge, in considering whether his Charter rights were violated by the use of excessive force during his arrest, made the error identified in the dissenting reasons in R. v. Davis , 2013 ABCA 15, 295 C.C.C. (3d) 508 (“ Davis ”), which were upheld by the Supreme Court of Canada: 2014 SCC 4, [2014] 1 S.C.R. 78 (“ Davis ( SCC )”). The error in Davis involved misallocating, to the accused, the burden of proving that excessive force was used. As this error may have tainted the assessment of the evidence as to whether excessive force was used, it could not be saved by the application of the curative proviso in s. 686(1)(b)(iii) of the Code . [60] The appellant relies on the first sentence of the following statement in para. 35 of the trial judge’s reasons to identify where he located the burden of proof : I conclude that [the appellant] has not satisfied his onus of proving on a balance of probabilities that excessive force was used against him by the police . I find that the police only used the force necessary to effect the arrest in the circumstances. Therefore, there was no breach of [the appellant’s] section 7 or section 12 Charter rights. [Emphasis added.] [61] Davis establishes that an accused only has the burden of demonstrating that a Charter remedy should be granted . The accused does not have the burden of showing that excessive force was used. Rather, once an accused shows that the police used deadly force, a prima facie breach of s. 7 exists, and the evidentiary burden shifts to the Crown to prove the force used was justified. This requires a subjective-objective analysis. The court has to be satisfied that the police officer subjectively believed that the use of force was necessary in the circumstances to protect the officer or others from death or grievous bodily harm, and the belief must have been objectively reasonable: Davis , at paras. 76-78. [62] The appellant argues that the first sentence of the trial judge’s statement in para. 35 of his reasons – that the appellant “has not satisfied his onus of proving on a balance of probabilities that excessive force was used against him by the police” – shows he misallocated the burden of proof. Rather than requiring the respondent to show the force was justified, he placed the burden on the appellant to demonstrate the force was excessive. [63] The appellant also submits that the error reflected in this sentence is neither corrected nor salvageable by the next sentences in the same para . 35, in which the trial judge said, “I find that the police only used the force necessary to effect the arrest in the circumstances. Therefore, there was no breach of [the appellant’s] section 7 or section 12 Charter rights.” The appellant points out that the trial judge in Davis also made a finding on the evidence that the police officer was “justified in acting as he did and did not breach [the accused’s Charter ] rights”. In Davis , the existence of that finding did not detract from the error in allocating the burden of proof, or justify applying the curative proviso, because as a product of misallocating the burden of proof, the trial judge did not properly process the evidence, relying only on the police officer’s subjective beliefs without addressing their objective reasonableness. This processing error may have tainted the trial judge’s ultimate finding on whether excessive force was used: Davis , at paras. 81-82 and 86-87; Davis ( SCC ), at para. 1. The appellant says the same approach should be taken here. [64] I would not give effect to this ground of appeal . This is a materially different case than Davis . [65] In Davis , there was no question about where the trial judge had placed the burden of proof, and how she applied it. She stated that the burden of showing a Charter violation rests on the accused, a statement that was correct “as far as it goes”: Davis , at para. 77. The trial judge in Davis then went further to say that that meant the burden of proving the force was excessive was on the accused, and further still to explain exactly what that meant. She said that the burden was on the accused to “demonstrate that [the police officer] did not reasonably believe that force was necessary to preserve himself or others from death or grievous harm and that he could have prevented [the accused’s] flight by reasonable means less violent.” This was an error of law, as the burden was on the Crown to prove that the force used was justified in the circumstances. To hold otherwise would be unfair to the accused, who would have to prove a negative, i.e., that the force was not justified. Moreover, her finding that she believed the police officer was the product of her focussing exclusively on the officer’s subjective belief, without adverting to the requirement of reasonableness. Any conclusion drawn from it may have been tainted by the misallocation of the burden of proof: Davis , at paras. 76-79 and 86-87. [66] Here, although the trial judge referred to the appellant not having met a burden of showing that excessive force was used, that sentence stands alone in the reasons as a description of the burden the trial judge was actually applying to decide the excessive force issue . [5] The reasons contain no elucidation of exactly what that burden required, as did the trial judge’s reasons in Davis . It did not, as in Davis , articulate the burden in such a way as to make it clear the appellant had been required to prove a negative – that the officers lacked a subjective belief that the force they used was necessary, or that if they did hold such a belief, that the belief was not objectively reasonable. [67] A review of the reasons as a whole does not support the view that the sentence in para. 35 of the reasons relied on by the appellant, rather than the one that follows, reflects the burden the trial judge actually applied in coming to his conclusion about a Charter breach. The statement relied on by the appellant is immediately followed by a positive finding that would be unnecessary if the trial judge was reaching his conclusion on the basis of a failure of the appellant to have satisfied his burden. The trial judge’s statement that “I find that the police used only the force necessary to effect the arrest in the circumstances” is consistent with what is the evidentiary burden of the Crown having been fulfilled: to show that the force used was justified in the circumstances. As discussed below, unlike in Davis , that statement was not the product of a singular focus on the subjective beliefs of the officers because the trial judge did not advert to the requirement of reasonableness. Given how the trial judge arrived at his conclusions, they cannot be taken to have been tainted by a misapprehension of the burden of proof. [68] Before discussing the evidence, the trial judge referred to the authorization in s. 25 of the Code for the police to use as much force as is necessary when arresting an individual. (Section 25 places the burden on the Crown to justify a police officer’s use of deadly force on a subjective-objective analysis: Davis , at paras. 41-45 and 78). Although his analysis of it was brief, he identified the key questions to be what force was necessary and whether the actual force was excessive after examining all of the circumstances as they existed at the time the force was used. [69] The trial judge also referred to case law, cited to him by both parties, that identified factors to be considered “in assessing the reasonableness of, or necessity for, force used by the police in any particular situation”. Accordingly, the trial judge was alive to the need to look at the force used through the lens of reasonableness, not simply the subjective beliefs of the police officers. [70] When analysing the evidence, and before making the statements in para. 35 of his reasons, the trial judge expressed himself more consistently with his having been satisfied the force used was justified, rather than on the basis that the appellant had the burden of showing the force used was not justified, but had fallen short of meeting that burden . He did not express himself concerning the evidence on the basis that the appellant had been required, but had failed, to prove a negative. [71] The trial judge rejected the appellant’s evidence that he did not resist arrest as “inconsistent with the preponderance of evidence”. He stated that he was “satisfied” about what had occurred based on the evidence of the officers that he accepted and the confirmation of Mr. Eaton. He did not limit himself to saying he was not satisfied that what the appellant contended had occurred. [72] His findings, although not always broken down between what the police officers believed and the reasonableness of their behaviour, covered matters that pertained to both, and were responsive to the arguments that were made before him. He found that the police had engaged in a wrestling match with the appellant that covered some distance because he was satisfied on the evidence that that occurred. But he went on to find that there was no reason for them to have done so, or to apply a taser, other than the appellant’s non-compliance. On the evidence that he accepted, that non-compliance was aggressive, physical, confrontational, and continuing, and included an assault on one of the officers. He found, considering the height, weight, and physical condition of the appellant, that he “represented a threat to the police officers”, and stated that he accepted the officers’ evidence that “it was not possible to physically subdue [the appellant] despite the best efforts of [the officers] until the Taser was applied.” His positive finding that lesser measures than the force actually used were not possible is quite different than saying that the appellant had fallen short of proving excessive force was used. [73] The trial judge’s factual findings, read in light of his having prefaced them by his instruction to determine “what amount of force was necessary and whether the actual force used was excessive”, and to consider the “reasonableness of, or necessity for, force used by the police” reflect positive findings as to what the police believed and the reasonableness of those beliefs, rather than about a failure of the appellant to prove an absence of either. [74] All of those findings precede the impugned sentence in para. 35 of the reasons. In my view, taken in context of what preceded it and what follows it, the sentence relied on by the appellant, while unfortunate, does not indicate the burden of proof the trial judge actually applied in coming to his decision. The better indicator of the burden of proof actually applied is in the sentences that follow. In them, the trial judge rejected the allegation of Charter breach (which the appellant had the onus of proving) because he made a positive finding, consequent on the positive findings he had made earlier in his reasons, that the police had used only the force necessary to effect the arrest in the circumstances. This is consistent with the Crown’s onus of proof. The trial judge was satisfied the force used was justified. [75] As the Crown points out, in his reasons for sentence, the trial judge summarized what he had determined in dismissing the Charter application. He said: “I accepted the evidence of the prosecution that [the appellant] aggressively resisted arrest and that reasonable force was used during the course of the arrest, including the application of a taser on three separate occasions.” This further supports the view that the trial judge actually decided the matter on a basis consistent with the Crown’s onus of proof. [76] Because of the view I take on whether the burden of proof was misallocated, it is not necessary to address the argument as to whether, if that error had occurred, it should be viewed as harmless and the curative proviso applied. CONCLUSION [77] On consent, the guilty plea to count 4 is set aside. The appeal is allowed as to counts 2, 3, 4, and 9, and the convictions on those counts are set aside and acquittals are entered. The appeal is dismissed as to counts 1 and 10. Only the sentences and ancillary orders connected to counts 1 and 10 remain in place. Released: October 22, 2021 “D.W.” “B. Zarnett J.A.” “I agree. David Watt J.A.” “I agree. L.B. Roberts J.A.” [1] The appellant pled guilty to the oxycodone possession charge, but the Crown consents to the admission of fresh evidence which shows that the plea was uninformed, and consents to the plea being set aside. The Crown and defence agreed that the appellant would preserve his appeal rights respecting the Charter ruling at issue in this appeal by not contesting the Crown’s evidence relating to the drug charges, and the appellant pled guilty to the charge without appreciating the consequences of the plea. [2] R. v. Jarrett , 2018 ONSC 1178. [3] He also rejected the claim that the s. 10(b) breach justified a stay under s. 24(1) of the Charter . That issue is not pursued on this appeal. [4] In Rover , this court characterized a delay of “almost six hours” as one that seriously impacted the rights of the arrested person: at para. 44. [5] The trial judge had earlier referred to the burden being on the appellant to prove Charter breaches, a statement that was correct “as far as it goes”: Davis , at para. 77.

COURT OF APPEAL FOR ONTARIO CITATION: Elguindy v. Elguindy, 2021 ONCA 768 DATE: 20211027 DOCKET: M52719 (M52669) Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. ( ad hoc ) BETWEEN Emad Elguindy and Irene Elguindy Plaintiffs and Aziz Elguindy and Afrodite Elguindy Defendants ( Moving Party / Responding Party ) Aziz Elguindy, acting in person Mitch Bates, for the responding party Heard: October 22, 2021 by video conference REASONS FOR DECISION [1] The moving party, Aziz Elguindy, asks that we reverse the order of van Rensburg J.A., dated August 6, 2021. Her order refused to extend the time for the moving party to appeal the dismissal of a motion he brought in the Superior Court under r. 59.06 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. In his r. 59.06 motion, the moving party sought to set aside a costs order made at trial in favour of the responding party, Afrodite Elguindy. [2] At the conclusion of oral argument, we dismissed the motion with reasons to follow. These are those reasons. [3] The moving party did not defend the proceeding below, and was noted in default. After the trial judge made his disposition of the action, including making an order for costs, the moving party sought leave to appeal the costs order to this court. Leave was denied: Elguindy v. Elguindy , 2020 ONCA 739. [4] The moving party then sought to challenge the same costs order by applying to the trial judge under r. 59.06, alleging that he had not been given notice of the process that led to the costs order, or that the costs order had been obtained by fraud. On May 13, 2021, the trial judge dismissed that motion on the basis that, having been noted in default, the moving party was not entitled to notice, and his allegations of fraud were “unfounded, unproven and irresponsible.” [5] The moving party’s request for an extension of time to appeal the dismissal of his r. 59.06 motion was refused by van Rensburg J.A. on the basis that no appeal lies to this court from it. She concluded that the order dismissing the r. 59.06 motion was an interlocutory order, not a final order, and could therefore only be appealed, with leave, to the Divisional Court. [6] We see no error in this conclusion in the circumstances of this case. A final order is one that determines the real matter in dispute between the parties — the very subject matter of the litigation — or a substantive right to relief of a plaintiff or substantive right of a defendant. The rights of the moving party were adjudicated by the trial judge, including in the costs order, consequent upon the moving party having been noted in default. The moving party sought and was denied leave to appeal the costs order that he is concerned about. The dismissal of his r. 59.06 motion in these circumstances cannot be said to have been a final order. It was not the determination of the very subject matter of the litigation or of any substantive right to relief or defence in the action, all of which had already been determined. The dismissal of the r. 59.06 motion was an interlocutory order: Antique Treasures of the World Inc. v. Bauer , 2003 CanLII 35349 (Ont. C.A.), at para. 4. [7] The moving party cites the decision in Mehedi v. 2057161 Ontario Inc. , 2015 ONCA 670, 391 D.L.R. (4th) 374. There is no discussion in that case of appeal routes and it cannot be taken to provide that the dismissal of the motion under r. 59.06 resulted in a final order in this case. [8] The motion is dismissed, with costs payable to the responding party in the sum of $750, inclusive of disbursements and applicable taxes. “G.R. Strathy C.J.O.” “B. Zarnett J.A.” “Wilton-Siegel J.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hassan, 2021 ONCA 769 DATE: 20211027 DOCKET: C65319 Fairburn A.C.J.O., Rouleau and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Saad Hassan Appellant Nicholas A. Xynnis, for the appellant Craig Harper, for the respondent Heard and released orally: October 26, 2021 by video conference On appeal from the convictions entered by Justice Grant R. Dow of the Superior Court of Justice, sitting with a jury, dated May 25, 2017. REASONS FOR DECISION [1] This is an appeal from conviction for one count of robbery, one count of attempted robbery, two counts of using an imitation firearm while committing robbery, and one count of uttering a threat. The offences involve the robbery of two women. When the appellant was located by the police in the area of the crimes not long after they occurred, the wallet of one woman and the imitation firearm used in the robberies were located in his car. [2] The appellant argues that the jury charge was inadequate in the sense that it: 1. Failed to relate the evidence to the issues; and 2. Failed to deal with the exculpatory evidence in the charge. [3] We disagree. This was a focused and straightforward trial involving only three days of evidence, much of which was not in dispute. [4] The jury’s attention was properly focused on the live issues. The charge followed a two-step process. First, the trial judge outlined the legal issues the jury had to consider. No objection is taken to how those legal issues were expressed. [5] Second, the trial judge related the evidence to those issues. While the evidentiary review was not exhaustive in nature, it need not be, particularly in the context of a very short trial where the evidence is fresh in the minds of jurors and closing arguments have just been made. [6] The adequacy of the charge in this case is reflected in the absence of any objection. Moreover, the absence of objection exists in the face of having pre-vetted the charge with counsel where no concerns were expressed, specifically as they relate to the issues now raised on appeal. [7] We are satisfied that in this straightforward, three-day jury trial, the jury was well equipped to decide the issues that needed to be decided. [8] The appeal is dismissed. “Fairburn A.C.J.O.” “Paul Rouleau J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Miragliotta v. Zanette, 2021 ONCA 764 DATE: 20211028 DOCKET: C67414 Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. ( ad hoc ) BETWEEN Amelia Miragliotta and Francesco Di Nardo Plaintiffs (Appellants) and Mark Zanette, Stephen Zanette, and Randy Zanette Defendants (Respondents) Patrick Di Monte, for the appellants Brett D. Moldaver, for the respondents Heard: October 18, 2021 by video conference On appeal from the order of Justice Chris de Sa of the Superior Court of Justice , dated August 9, 2019, with reasons reported at 2019 ONSC 4599 . REASONS FOR DECISION INTRODUCTION [1] The appellants [1] appeal from a decision that addressed two matters: (i) the amount the appellants should pay as a result of their having undertaken to be responsible for damages caused by an interim injunction they obtained against the respondents; and (ii) the amount that should be awarded to the appellants for expenditures to perform work that the respondents were obliged to complete under a 2010 court order. The appellants contend that the trial judge erred in his assessment of both amounts. [2] [2] For the reasons that follow, we dismiss the appeal. BACKGROUND [3] The appellants and the respondents own neighbouring development lands in the City of Vaughan. They have been involved in litigation concerning the lands for more than 10 years. [4] The 2010 court order provided that the parties would enter into an Agreement of Purchase and Sale under which the respondents would sell a small piece of land known as Block 7 to the appellants. It also provided that the respondents would be responsible for, among other things, completing the final coat of asphalt on a roadway known as the Appian Way by August 31, 2013, and for completing the final curbs for Block 7. [5] The respondents did not comply with the deadline in the 2010 order. After giving notice to the respondents of their intention to hold them responsible for the cost of doing so, the appellants did the work to complete the curbs and added the final coat of asphalt to the Appian Way in May 2014. [6] In August 2014, the respondents proposed a plan for their lands that involved creating, by severance, five building lots, two of which would have 50-foot frontages, rather than the 60 feet required under a city by-law. The respondents objected, and in October 2014, moved for an injunction, undertaking to be responsible for any damages flowing from the injunction. In January 2015, an injunction was granted restraining the respondents from proceeding with the development of the two building lots of 50 feet. The injunction was set aside by a further order made on June 2, 2015, which the appellants appealed unsuccessfully. [3] When the injunction was set aside, a reference was directed to determine the damages for which the appellants were responsible as a result of their undertaking. The Trial Judge’s Decision [7] The trial judge heard the reference on damages caused by the injunction, and a motion for summary judgment brought by the appellants to recover their expenditures for work relating to the respondents’ failure to comply with the 2010 order. [8] With respect to the damages caused by the injunction, the trial judge accepted the evidence of the respondents that they had obtained a commitment for new financing in September 2014, based on a five-lot development (with 50-foot lots). The refinancing would have allowed them to pay out their existing mortgages of $1,650,000, which were accruing interest at 9% and 13.7% in October 2014, with a new rate of 6.85% for an 18-month term. The motion for the injunction and the injunction itself prevented the refinancing from being finalized until May 2015; when it was finalized, it was based on four lots only and at a higher interest rate. [9] The trial judge awarded the respondents $30,289.58, representing the interest rate differentials as a result of their inability to refinance the property between October 2014 and May 2015; a further $22,252.50, representing higher interest on the eventual refinancing between May 2015 and November 2016; and a further $10,000 for “[l]ender’s amendment fees”. He described these as amounts the appellants did “not seriously contest”. [10] The trial judge denied the respondents’ claim for a further amount of about $121,000 of “[i]nterest for carrying costs on the project due to … delays”, as he found the delays complained of to support this aspect of the claim were not clearly associated with the injunction. Instead, the trial judge found that these costs were incurred as a result of the respondents’ development choices and natural delays caused by the circumstances surrounding the development. [11] The appellants’ claim relating to the final coat of asphalt and the curbs was allowed by the trial judge in the amount of $28,172.61, less $25,000 already paid. The trial judge also made an award of interest. He disallowed the higher amounts claimed by the appellants because they included interest calculated at 10%, rather than the Courts of Justice Act , R.S.O. 1990, c. C.43 rate, and because they included amounts not attributable to the final coat of asphalt or the curbs as contemplated by the 2010 order. ANALYSIS (i) Damages Flowing from the Injunction [12] Before this court, the appellants argue that the trial judge ought not to have awarded the interest differential amounts or the lender’s amendment fees. They essentially argue that the respondents did not have any municipal or planning approvals for five lots or four lots at the time of their planned or actual refinancing, and therefore ought not to have been approved for refinancing based on creating either number of lots. Therefore, they say the trial judge erred in finding the interest rate differentials, if there were any, and the lender amendment fees were caused by the injunction. They also argue that the respondents should have gone back to the lender and requested different terms once the injunction was dissolved in June 2015, in essence suggesting that there was a failure to mitigate. [13] We reject this ground of appeal. [14] The trial judge made findings of fact that the appellants had a lending commitment at a lower interest rate, that the injunction delayed its finalization, and that the respondents were only able to finalize it at a higher rate while the injunction was in effect. In other words, the respondents were deprived of the benefit of the September 2014 lending commitment by reason of the injunction. The appellants do not argue that the trial judge made a palpable and overriding error in these findings, which are entitled to deference on appeal. These findings support the award of damages he made. It is immaterial whether the respondents, vis-à-vis their own lender, should have been approved for refinancing based on a particular number of lots before planning approvals were obtained. The damages flowing from the injunction were based on what the trial judge found had actually occurred, not what the respondents’ lender should have committed to in the circumstances. [15] Assuming that it is open to a party obligated to pay damages for obtaining an injunction to argue a failure to mitigate, the appellants would bear the onus of proof on that issue. The appellants pointed us to no evidence to support the argument that if the respondents had tried to renegotiate the refinancing after the injunction was dissolved, they would have succeeded. (ii) Compensation for Expenditures Under the 2010 Court Order [16] With respect to the award of compensation in their favour, the appellants argue that the trial judge gave them an inappropriately low sum. They say that the Appian Way road deteriorated due to the failure of the respondents to apply the final coat of asphalt by the deadline for doing so, and therefore they had to do additional work before they could apply the final coat. They say the trial judge took an unduly narrow view of what the 2010 order required. [17] We reject this ground of appeal as well. The trial judge’s interpretation of the terms of the 2010 order (which the appellants themselves stress was given on consent and was akin to a contract) is entitled to deference in this court. So is his comparison of what the appellants spent relative to what was required of the respondents under the 2010 court order, as that is a matter with a heavily factual component. We see no error in the trial judge’s conclusions that would entitle this court to interfere. CONCLUSION [18] The appeal is dismissed. The respondents are entitled to their costs of the appeal, fixed in the agreed amount of $12,500, inclusive of disbursements and applicable taxes. “G.R. Strathy C.J.O.” “B. Zarnett J.A.” “Wilton-Siegel J.” [1] The appellant, Francesco Di Nardo, died while this appeal was pending. An order to continue the appeal under r. 10.02 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 was sought by his wife, Amelia Miragliotta, in the appellants’ factum. [2] The matter proceeded below both as a trial of issues on the damages flowing from the injunction and a motion for summary judgment for recovery of the appellants’ expenditures. For ease of reference, all references to the judge below describe him as the trial judge. [3] Pirpamer v. Zanette , 2015 ONCA 723.

COURT OF APPEAL FOR ONTARIO CITATION: Motuz (Re), 2021 ONCA 765 DATE: 20211028 DOCKET: C69562 Rouleau, Benotto and Zarnett JJ.A. IN THE MATTER OF: Gary Robert Motuz AN APPEAL UNDER PART XX.1 OF THE CODE Erin Dann, for the appellant 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: October 8, 2021 by video conference On appeal against the disposition of the Ontario Review Board dated March 2, 2021, with reasons dated March 18, 2021. REASONS FOR DECISION [1] Mr. Motuz has been in detention since June 2, 2015. He appeals the March 2, 2021, disposition of the Ontario Review Board which refused to grant an absolute discharge. He seeks an absolute discharge or seeks to have the matter remitted to the Board for a new hearing. BACKGROUND [2] The appellant has a lengthy criminal record, dating back to 1993. Five of these convictions were for violent offences. The most recent violent offence was the assault of a peace officer, of which he was convicted in 2004. His offences since then have been non-violent – most are for failure to comply with probation orders and trespass at night. [3] The appellant had a history panhandling. He was convicted of causing a disturbance and was required to stay away from a certain area on Dunlop Street in Barrie. In December 2014, police found him walking on Dunlop Street West and he was arrested. [4] Following his arrest, the appellant was required to attend for fingerprinting on January 12, 2015. He did not do so. Later in January 2015, he moved and failed to notify his probation officer of his change of address. He was convicted of breach of two probation orders. On June 2, 2015, he was found not criminally responsible on account of mental disorder on charges of failure to comply with probation order and failure to appear or comply with appearance notice. [5] Every year, on his review hearing, the Board continued his detention. His most recent hearing was February 24, 2021. EVIDENCE AT THE HEARING [6] The appellant’s current psychiatric diagnoses are substance abuse, schizophrenia, and antisocial personality disorder. He was deemed incapable of making his own treatment decisions in August 2020. [7] The appellant has an inconsistent history of compliance with medication. In 2011, he was admitted to the hospital because of concerns that he was going to harm someone. He was brought to the Emergency Department where he had to be restrained and, once restrained, continued to spit at staff. In 2013, he appeared to throw a punch in the direction of a doctor while at the Central North Correctional Centre. [8] From the time that the appellant was detained following his NCR finding, his misconduct has been relatively minor in nature, such as slamming doors and badgering other residents and strangers for money and cigarettes. In February 2019, the appellant was seen repeatedly picking up a chair and dropping it, he yelled at staff to “fuck off”, and slammed a door. He requested the seclusion room where he sat on a mattress and stared blankly at staff. He then began kicking the door, punching the window, and tied a pillowcase around his neck. He returned the pillowcase to staff when asked. This incident was later found to be the result of hyponatremia (water intoxication), after the appellant had consumed dangerous quantities of coffee, water, and pop. [9] The unanimous opinion of the treatment team was that the appellant poses a significant threat to the safety of the public DECISION OF THE BOARD [10] The Board concluded that the appellant poses a significant threat to public safety. [11] He suffers from a major mental illness which is only partially controlled by medication. He also lacks insight into both the fact that he has a mental illness and the benefits of medication for that illness. He suffers from an antisocial personality disorder and has scored within the psychopathic range of the PCL-R. [12] While the appellant has not been convicted of violent offences in many years, he has exhibited “aggressive behaviour, criminal in nature” more recently. There is no doubt that if granted an absolute discharge, the appellant would cease medication and return to criminal behaviour. Even in the appellant’s more recent non-violent criminal history, he has been convicted of trespass at night which “raises significant concerns about the nature of his activity and the potential consequences should he come across the residents of the property on which he is trespassing.” [13] The appellant refuses to accept housing recommended by the hospital and has stated that if discharged, he would cease taking medication and consume marijuana. ISSUE ON APPEAL [14] Was the board’s refusal to grant an absolute discharge unreasonable? The appellant’s position [15] The appellant submits that the Board’s refusal to grant an absolute discharge was unreasonable for three reasons. [16] First, the appellant challenges the description of his more recent history as exhibiting aggressive behaviour that was criminal in nature. He submits that the Board misapprehended the evidence by failing to consider the lengthy absence of violent or aggressive behaviour by the appellant – including when he was unwell, precariously housed, and using illicit substances – in assessing whether he was a significant threat to public safety. This, the appellant submits, is evident in the Board’s reasons at paras. 21 and 22 which provide the following: 21. The Board unanimously finds that Mr. Motuz continues to constitute a significant threat to the safety of the public. He suffers from a major mental illness which is only partially controlled by medication. He lacks insight into the fact that he has a mental illness, the positive impact of medication on that illness or the impact of marijuana use on his mental health. Although he has no convictions for violent offences for many years, he has exhibited aggressive behaviour, criminal in nature although not resulting in charges, both in and out of Hospital more recently. It is also noteworthy that for significant periods of time over the last many years he was either hospitalized or incarcerated and receiving treatment. Should he be granted an absolute discharge, there is no doubt that he would immediately cease medication and resume the use of intoxicants with decompensation and a return to criminal behaviour as a result. 22. Although Mr. Motuz' criminal record is largely nonviolent, it does include offences of violence and there is also a history of aggressive and threatening behaviour causing both physical and psychological harm which although criminal in nature did not result in criminal charges. It is also noteworthy that he has been convicted on a number of occasions of trespass at night, offences which raises significant concerns about the nature of his activity and the potential consequences should he come across the residents of the property on which he is trespassing. [17] The appellant submits that this also demonstrates that the Board erroneously conflated his past behaviour with his current condition. [18] Second, the appellant submits that the Board failed to consider evidence supporting a discharge, specifically, the dated nature of the appellant’s violent criminal history. The Board overemphasized the speculative concerns related to his more recent conduct, such as concerns that “trespass at night” provides an opportunity for violent behaviour that the appellant would seize on. [19] Third, the appellant submits that the evidence does not support the conclusion that he remains a significant risk to the public. Although the evidence before the Board supported its conclusion that, absent oversight, the appellant would likely stop taking medication, decompensate, and possibly return to criminal behaviour, this does not itself address whether the appellant poses a significant risk to public safety. The Respondents’ position [20] The Crown and the Hospital submit that the Board’s conclusion was reasonable. It should be read in combination with the evidence of Dr. Ann Jones and the Hospital Report, which the reasons for disposition adopt. The Board found that there was a significant threat to the public based on an holistic approach including his violent history, his mental illness, and  because the appellant has stated that he would not comply with treatment or take medication, and instead would take illicit substances, if he was no longer under the jurisdiction of the Board. The appellant also continues to refuse housing recommended by the hospital. They argue that the  appellant downplays the incidents of aggression with which he was involved when he submits that in the past, when he took illicit substances but not medication, he still did not act criminally or pose a danger to the public. [21] The Crown and the Hospital submit that given that the appellant resists efforts to integrate him into the community, a detention order is the least onerous and restriction disposition available. ANALYSIS [22] We are not persuaded that the Board misapprehended the evidence concerning the appellant’s history of aggressive behaviour or  conflated the appellant’s recent behaviour with his past. The impugned paragraphs recognized both that “he has no convictions for violent offences for many years” (para.21) and that he has “a history of aggressive and threating behaviour” which included more recent incidents (para.22). Nor was there a failure to consider evidence in support of an absolute discharge. The Board considered the dated nature of the appellant’s criminal record for violent offences; however, based on the evidence as a whole, it decided that a detention order was warranted. [23] Nor are we persuaded that the record before the Board did not support its conclusion that the appellant remained a significant risk to the public. Although the Board’s articulation of its reasons for finding significant risk is brief, the reasons must be read as a whole, in conjunction with the record: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32. Even reasons which may rise to the level of concern and lack transparency have been considered not unreasonable when read with the evidence accepted by the Board: see Re Marchese , 2018 ONCA 307, 359 C.C.C. (3d) 408, at paras. 11-12). [24] Here, in addition to its findings about the appellant’s history of violence and aggressive behaviour  the Board accepted the evidence of Dr. Jones and the unanimous opinion of the treatment team that the appellant poses a significant threat, and that detention is necessary to manage the risk. In particular, the Board accepted the following: · He suffers from a mental illness that is only partially controlled by medication. · He lacks insight into his illness and adamantly states he will discontinue medication. · Compliance with medication and avoidance of illicit substances is central to the mitigation of risk. · If granted an absolute discharge, he would immediately stop taking medication, would resume using intoxicants with decompensation, and would return to criminal behaviour. · His scores on psychiatric tests place him on the psychopathic range and his score on the VRAG (Violence Risk Appraisal Guide) was elevated suggesting he was “in the high range of risk for violent recidivism”. · He is not currently using his full privileges and is declining to engage in meaningful discussions about community living. [25] The Board’s reasons, while brief, are not insufficient. When read in conjunction with the record, the disposition is not unreasonable. DISPOSITION [26] The appeal is dismissed. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “B. Zarnett J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gauthier, 2021 ONCA 767 DATE: 20211028 DOCKET: C67880 Fairburn A.C.J.O., Rouleau and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and D’Arcy Gauthier Appellant Ian B. Kasper, for the appellant Kristen Pollock, for the respondent Heard and released orally: October 25, 2021 by video conference On appeal from the conviction entered on September 19, 2019 by Justice Gary W. Tranmer of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of a single count of sexual assault committed in 1989. The trial judge’s lengthy reasons turned largely on his assessment of the complainant’s credibility. The appeal rests on three interrelated grounds, all of which arise from the reasons for judgment: 1. That the trial judge reversed the burden of proof in how he approached alibi evidence; 2. That the trial judge erred by approaching the evidence in a piecemeal fashion; and 3. That the verdict is unreasonable. [2] We see no reversal of the burden of proof. The trial judge clearly and correctly reviewed the applicable legal principles and applied them without error. [3] Nor do we see any error in how the trial judge approached the evidence, specifically regarding what were said to be inconsistencies and improbabilities arising from the complainant’s version of events. To the contrary, the trial judge painstakingly reviewed the alleged inconsistencies and improbabilities and reconciled them. His reasons adequately explain how he arrived at his credibility findings. The appellant’s core complaint is really that he does not like the conclusions reached by the trial judge. It was open to the trial judge to conclude as he did on these points. He is owed deference. [4] Bearing in mind the complainant’s evidence, the verdict was one that a properly instructed trier of fact, acting judicially, could reach. Therefore, the verdict is not unreasonable. [5] The appeal is dismissed. “Fairburn A.C.J.O.” “Paul Rouleau J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kawaguchi v. Kawa Investments Inc., 2021 ONCA 770 DATE: 20211029 DOCKET: C68577 Feldman, Harvison Young and Thorburn JJ.A. BETWEEN Warren Kawaguchi, Kent Kawaguchi, Lisa Kawaguchi, Julia Shimoda and J. & K. Die Casting Limited Plaintiffs/Responding Parties (Appellants) and Kawa Investments Inc., Lori Kawaguchi, 2708699 Ontario Inc., Oscar Lulka, Susan Lulka, CBRE Limited, Carol Trattner, Rob Ironside , Top Producers Real Estate Inc. and J. Armand Ardila Defendants/ Moving Parties ( Respondents ) Robert S. Choi and Adam Beyhum, for the appellants Gavin Tighe and Anna Husa, for the respondents Heard: April 13, 2021 by video conference On appeal from judgment of Justice Markus Koehnen of the Superior Court of Justice, dated August 3, 2020. Feldman J.A.: [1] The motion judge prevented the appellants, the plaintiffs in the action, from discontinuing their action against the respondents, three of the defendants in the action. He then granted the respondents’ motion for summary judgment, dismissing the action against them. [2] The issues on the appeal are whether the motion judge erred in law by finding that the appellants were not entitled to serve a notice of discontinuance under the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “ Rules ”) or, alternatively, by setting aside the notice of discontinuance as an abuse of process; if not, whether he erred by granting summary judgment; and whether he erred by ordering substantial indemnity costs. [3] For the reasons that follow, I would dismiss the appeal. While the motion judge erred in law in his interpretation of rules 23.01(1) and 25.05, by finding that the pleadings were closed and therefore the appellants could not deliver a notice of discontinuance, he did not err in setting aside the notice of discontinuance as an abuse of process and ordering the action be dismissed on summary judgment, or in ordering substantial indemnity costs of the action and of the motion. A. Background Facts and Findings by the Motion Judge [4] The appellants are siblings and are the cousins of the defendant Lori Kawaguchi. The corporate appellant, J. & K. Die Casting Ltd., (“J. & K.”) is a Kawaguchi family business, as is the corporate defendant, Kawa Investments Inc. (“Kawa”). Both businesses had been operated by the Kawaguchi family for 55 years at the time these proceedings arose. The respondents are a commercial real estate services and investment firm, and two real estate agents. The defendants Lori Kawaguchi and Kawa were not parties on the motions to set aside the discontinuance and for summary judgment, and are not respondents on this appeal. [5] The dispute arose from the attempted sale of 18 Golden Gate Court in Scarborough, the industrial property owned by Kawa, which is the location where J. & K. operates its business. Lori Kawaguchi, as president of Kawa, entered into a listing agreement with the respondents to sell the property. Lori Kawaguchi claims that she owns 50.2% of the shares of Kawa, which she inherited on the death of her father in 2012. The individual appellants own the remaining 49.8% of the shares. The appellants dispute the validity of the share transfer to Lori Kawaguchi and therefore, her status and her authority to act on behalf of Kawa. [6] The listing agreement led to a conditional agreement of purchase and sale with a third party, but the listing was terminated when this litigation was commenced and the conditional agreement of purchase and sale did not close. [7] The appellants’ claim against the respondents was for breach of contract and in tort for failing to investigate and verify Lori Kawaguchi’s authority to enter into the listing agreement on behalf of Kawa. [8] The appellants moved in the action for an interim injunction to prevent the marketing and sale of the property. In response, the respondents voluntarily agreed to cease marketing the property pending the outcome of the injunction motion. The injunction was granted against Lori Kawaguchi and against Kawa, but denied against the respondents. The judge who heard the injunction motion indicated that she viewed the action as having little or no merit against the respondents: there was no contract between the appellants and the respondents, the documentary evidence showed that Lori Kawaguchi was the majority shareholder, and in any event, the realtor respondents could rely on the indoor management rule when accepting the listing from Lori Kawaguchi. [1] [9] Following the injunction motion, when the appellants refused to dismiss the action against the respondents, the respondents’ counsel advised that the respondents would be moving for summary judgment. In response, the appellants served a notice of discontinuance. Counsel for the appellants confirmed to the motion judge that the appellants wished to retain the right to recommence the action against the respondents in the future. [10] The respondents proceeded to bring their motion for a declaration that the appellants’ notice of discontinuance was invalid, and for summary judgment dismissing the action against them. The issue turned on the interpretation of rr. 23.01(1) and 25.05 of the Rules . The appellants submitted that they were entitled to discontinue because pleadings were not closed within the meaning of r. 25.05, because the time for delivery of a reply had not expired as against the defendants, Lori Kawaguchi and Kawa, who had been late in filing their joint defence and counterclaim. [11] The motion judge rejected that submission, concluding that pleadings closed at different times against each defendant, and that as against the respondents, the pleadings were closed. [12] The motion judge found, in the alternative, that if he was incorrect about the proper interpretation of the Rules , he would set aside the notice of discontinuance as an abuse of process and grant summary judgment dismissing the action against the respondents. The motion judge found that there was no genuine issue requiring a trial arising from the claim that the respondents were negligent by failing to conduct due diligence regarding Lori Kawaguchi’s authority to enter into the listing agreement. [13] First, the fact that Lori Kawaguchi is a director and president of Kawa entitled the respondents to rely on the indoor management rule. [14] Second, the appellant Warren Kawaguchi facilitated showing the property to potential purchasers, including accompanying them on showings and directing when showings could and could not occur. He never indicated any objection that the listing was unauthorized. [15] Third, the motion judge rejected the one alleged inconsistency in the evidence of one of the respondents, Rob Ironside, which counsel identified as the only issue that required a trial. [16] The motion judge concluded that in light of the “flimsy” nature of the claim, the respondents were entitled to a final resolution of the issues raised, and should not be exposed to a new action based on the same facts. He therefore dismissed the claim against them. [17] The motion judge also awarded costs to the respondents on a substantial indemnity basis. He found that because of the appellant Warren Kawaguchi’s participation in the showing process, the respondents “clearly had actual authority from 2 of 3 directors.” Therefore, the action against them was frivolous and vexatious. B. Issues [18] The appellants raise four issues on this appeal: 1. Did the motion judge err in law by finding that the appellants were not entitled to discontinue the action against the respondents because pleadings were closed within the meaning of r. 25.05? 2. Did the motion judge err by setting aside the notice of discontinuance as an abuse of process? 3. Did the motion judge err by granting summary judgment? 4. Did the motion judge err by finding an abuse of process that justified an award of substantial indemnity costs? C. Analysis (1) Did the motion judge err in law by finding that the appellants were not entitled to discontinue the action against the respondents because the pleadings were closed within the meaning of r. 25.05? [19] The first issue before the motion judge was whether the appellants were entitled to discontinue the action against the respondents. The issue turns on the interpretation of rr. 23.01(1) and 25.05, and in particular, whether pleadings in an action remain open as long as they are not complete in respect of any one of multiple defendants, or whether they can close in respect of each defendant separately. [20] The two rules read as follows: 23.01(1) A plaintiff may discontinue all or part of an action against any defendant, (a) before the close of pleadings, by serving on all           parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and     filing the notice with proof of service; (b) after the close of pleadings, with leave of the   court; or (c) at any time, by filing the consent of all parties. 25.05 Pleadings in an action are closed when, (a) the plaintiff has delivered a reply to every         defence in the action or the time for delivery of a          reply has expired; and (b) every defendant who is in default in delivering a defence in the action has been noted in default. [21] The motion judge focused on the singular noun “a reply” in subrule 25.05(a), inferring from the use of the singular that pleadings close against each defendant separately. He accepted the submission that, were it otherwise, a defendant who has defended a multi-defendant lawsuit would be precluded from moving the action forward, such as to discovery of documents, until the last defendant had defended and the time for reply had expired. With respect to the motion judge, this interpretation is incorrect and constitutes an error of law. [22] The Rules tie the deadline for taking certain procedural steps to the defined state of the close of pleadings in only seven contexts: the first is determining when a plaintiff may discontinue an action (r. 23.01(1)); the second is determining when a party may amend its pleadings without leave or consent (r. 26.02(a)); the third is the time by which the parties shall agree to a discovery plan (r. 29.1.03(2)); the fourth is the time by which a party shall serve its affidavit of documents under the simplified procedure (r. 76.03(1)); the fifth is the time after which a party may set an action or a third party claim down for trial (rr. 48.01 and 29.08(1)); the sixth is the time when a defendant may move to dismiss for delay when the plaintiff has failed to set the action down for trial (r. 24.01); and the seventh is the latest time by which a party to an action may deliver a jury notice (r. 47.01). [23] However, contrary to the policy justification suggested by the motion judge, there is no general requirement that pleadings must be closed for parties to proceed with the next steps in litigation. For example, under r. 31.04(1), either party may serve a notice of examination after the defendant has delivered a statement of defence and, unless the parties agree otherwise, has served an affidavit of documents. The pleadings may still be open at this stage, but the Rules permit the parties to move forward and initiate examinations. [24] I see no ambiguity in the wording of r. 25.05. For pleadings to be closed, the rule requires that the plaintiff reply to every defence or that the time to reply has expired, and that every defendant who has not defended has been noted in default. The reference to “every” defence and “every” defendant in both parts of the rule makes it clear that in a multi-defendant action, in order for pleadings to be closed in that action, they must be closed against all defendants. [25] I see no unfairness or disadvantage to a defendant in giving the rule its plain meaning. It is important to note that the timing of when pleadings are closed is not wholly within the discretion or power of the plaintiff. In the case where a plaintiff chooses not to reply to any defence, when the deadline for filing a reply has gone by, that timing requirement of the rule will have been satisfied. In addition, under r. 19.01, not only can the plaintiff note a defendant in default, but a defendant can also move to have another defendant noted in default. This would satisfy the second timing requirement of r. 25.05. [26] I conclude that the motion judge erred in his interpretation of the requirements of the rule for delivering a notice of discontinuance. In this case, it is not disputed that when the appellants served the notice of discontinuance, although the time for delivering a reply had passed in respect of the respondents, the time for delivering a reply to the late-filed joint statement of defence and counterclaim of Lori Kawaguchi and Kawa had not yet passed. In addition, those defendants had not been noted in default. As a result, pleadings in the action were not closed and, under r. 23.01(1)(a), the appellants were entitled to serve a notice of discontinuance. (2) Did the motion judge err by setting aside the notice of discontinuance as an abuse of process? [27] In Holterman v. Fish , 2017 ONCA 769, [2018] 3 C.T.C. 55, leave to appeal to S.C.C. refused, 37889 (July 5, 2018), this court discussed when a consent notice of discontinuance could be set aside at the request of the plaintiff, in exceptional circumstances that arose after the notice was delivered. The current appeal does not fall into that category. [28] However, there is long-standing case law in Ontario, as well as in other provinces, that affirms that a court has the authority, in the appropriate circumstances, to set aside a notice of discontinuance that was properly delivered under the Rules as an abuse of process: see Angelopoulos v. Angelopoulos (1986), 55 O.R. (2d) 101 (H.C.) , at 109-10; Toronto (City) v. Abasi , 1990 CarswellOnt 2289 (H.C.); Glasjam Investments Ltd. v. Freeman , 2014 ONSC 3878, at paras. 60-62; Smith v. Dueck , 1997 CarswellBC 792 (S.C.), at paras. 22-23; De Shazo v. Nations Energy Co. , 2006 ABCA 400, 401 A.R. 142, at paras. 11-15; and DLC Holdings Corp. v. Payne , 2021 BCCA 31, 456 D.L.R. (4th) 337 at paras. 31-33. [29] In Angelopoulos , Henry J. set aside a notice of discontinuance for abuse of process. In that case, the wife had commenced a family law proceeding against the husband. The wife then moved before a master for relief in accordance with the action. That proceeding resulted in a consent order that dealt with much of the requested relief, and also restrained the wife from attending at the premises of the parties’ jointly owned business. Following the order, the wife nevertheless continued to attend at and to disrupt the business. [30] As pleadings remained open, the wife served a notice of discontinuance, with the intention to avoid the effect of the consent order and to be able to recommence the proceedings afresh. Henry J. held that while the Rules gave the plaintiff the absolute right to serve a notice of discontinuance, he had the power to set aside the notice as an abuse of process under r. 1.04, which provides: 1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. (2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them. [31] In my view, in the circumstances of this case, the motion judge was entitled to exercise the same jurisdiction under r. 1.04 as Henry J. did in Angelopoulos . By seeking an injunction to obtain interim relief based on the merits of the claim, the appellants took a significant step in the proceeding. They were successful against the main defendants in the action, which accomplished their goal of preventing the sale of the property until the authority of Lori Kawaguchi is determined at a trial. However, their claim against the respondents was found to have little or no merit. Unhappy with that result, and faced with the respondents’ indication that they intended to move for summary judgment, the appellants sought to be free to not pursue their claim against the respondents for the moment but to be able to recommence the same proceeding on the same facts at a future time. In those circumstances, the motion judge was entitled to conclude that the notice of discontinuance constituted an abusive use of the Rules . [32] In oral argument on the appeal, appellants’ counsel postulated that if the injunction were to be lifted, the respondents could again accept a listing of the property for sale, and that was why the appellants should retain the ability to recommence the action against them. However, in those circumstances, the action would be based not on the same facts, but on the new facts just described. And I would add, it is most unlikely that these respondents would accept the listing again until the now-known corporate dispute is resolved. [33] The principle against allowing a plaintiff to discontinue an action once the action has proceeded past a certain point has been in place in England and followed in Canada since the late 19 th century: see Fox v. Star Newspaper Company , [1898] 1 Q.B. 636 (C.A.) at 639, aff’d [1900] A.C. 19 (H.L. (Eng.)); Schlund v. Foster (1908), 11 O.W.R. 175 (H.C.), aff’d 11 O.W.R. 314 (Div. Ct.); Blum v. Blum , [1965] 1 O.R. 236 (C.A.), at 238-39; Hennig v. Northern Heights (Sault) Ltd. (1980), 30 O.R. (2d) 346 (C.A.), at 353-54; and Sampson v. City of Kingston , 1981 CarswellOnt 2747 (H.C.), at paras. 6-10. In Fox , Lord Chitty summarized the effect of the Rules of the Supreme Court, 1883 (U.K.), Order 26, r. 1, which dealt with discontinuance, as follows: The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then to be no longer dominus litis, and it is for the judge to say whether the action shall be discontinued or not and upon what terms… The substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject-matter. [34] This principle is continued under r. 23.01(1)(a), which allows a plaintiff to unilaterally discontinue its action until the close of pleadings. To discontinue its action after this stage, a plaintiff must obtain leave of the court or the consent of all parties (rr. 23.01(1)(b) and (c)). However, the case law demonstrates that in some circumstances, particularly where there are judicial orders or findings in the action, a court may find it to be an abuse of process for the plaintiff to seek to discontinue the action and to be able to recommence the same action, against the same defendant, on the same facts. In addition, in those circumstances, issues of res judicata and issue estoppel could potentially arise. [35] I see no error in the motion judge’s exercise of his jurisdiction under r. 1.04 to set aside the notice of discontinuance in this case as an abuse of process. (3) Did the motion judge err by granting summary judgment? [36] The appellants’ position is that the motion judge should have found that there was a genuine issue requiring a trial, and declined to order summary judgment dismissing the action against the respondents. Their action is based on an allegation that the respondents should have done more due diligence investigation of Lori Kawaguchi’s authority to enter into the listing agreement on behalf of Kawa, and that had they done so, they would have learned about the dispute regarding her authority. They also assert that there are other parties at CBRE who had had previous dealings with Kawa when it sold another property and who knew there were more family members involved, and those parties were required to give evidence. [37] The problem with the appellants’ position was identified by the motion judge: the appellant Warren Kawaguchi was complicit in the respondents’ attempts to market the property by facilitating some showings, and of even more significance, he never told the respondents that he or anyone else had any objection to the listing or to Lori Kawaguchi’s authority to act on behalf of Kawa. There was therefore no basis for the respondents to suspect any problem, and no basis to make any inquiries of Warren Kawaguchi. [38] Further, any information from other parties at CBRE could have been elicited by way of an undertaking on the cross-examination of the respondent, Rob Ironside. A trial was not required to elicit this evidence. [39] Lastly, the motion judge specifically asked counsel to identify any issue requiring a trial. The sole issue that counsel relied on was an alleged conflict in the evidence of Mr. Ironside, which the motion judge rejected as a conflict. [40] I see no basis to interfere with the motion judge’s decision to grant summary judgment and dismiss the appellants’ claim against the respondents. (4) Did the motion judge err by finding an abuse of process that justified an award of substantial indemnity costs? [41] A deferential standard applies to appellate review of a discretionary costs award, unless it is based on an error in principle or is clearly wrong: Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. In this case, the substantial indemnity costs award followed the motion judge’s decision on the merits. That decision was based in part on an error in law in the interpretation of when pleadings are closed (r. 25.05), and therefore, when a plaintiff may serve a notice of discontinuance (r. 23.01(1)). [42] However, the motion judge’s decision to award substantial indemnity costs of the action and of the motion was based on his finding of abuse of process in both commencing the action against the respondents, which he found to be frivolous and vexatious, and in resisting a summary dismissal, given the facts and circumstances that were identified by the judge who refused to grant the injunction against the respondents. [43] Given that reasoning, I see no basis to interfere with the decision of the motion judge on costs. D. Result [44] In the result, I would dismiss the appeal from the order setting aside the notice of discontinuance and granting summary judgment dismissing the action against the respondents and from the orders for substantial indemnity costs. [45] I would award costs of the appeal to the respondents on the partial indemnity scale fixed at $8,280, inclusive of disbursements and HST. Released: October 29, 2021 “K.F.” “K. Feldman J.A.” “I agree. Harvison Young J.A.” “I agree. Thorburn J.A.” [1] On the record on the motion under appeal, the corporate documents show Lori Kawaguchi as a director and president of Kawa, but do not show her as the majority shareholder.

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b)  is guilty of an offence punishable on summary conviction. WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. K.C., 2021 ONCA 776 DATE: 20211101 DOCKET: C67417 Fairburn A.C.J.O., Rouleau and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and K.C. Appellant Phillip Millar, for the appellant Hannah Freeman, for the respondent Heard and released orally: October 26, 2021 by video conference On appeal from the conviction entered by Justice Norman S. Douglas of the Ontario Court of Justice on August 20, 2019. REASONS FOR DECISION [1] This is an appeal from a conviction for sexual assault. The matter proceeded under the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ YCJA ”) . The complainant, her friend, and the accused testified, as did a couple of other witnesses. The case turned entirely on an assessment of credibility. [2] Section 142 of the YCJA provides that proceedings in youth justice court are generally governed by provisions applicable to summary conviction offences found in the Criminal Code , R.S.C., 1985, c. C-46, except where they are inconsistent with the YCJA . The respondent acknowledges that those provisions include s. 802(3) of the Criminal Code , requiring that every witness “shall be examined under oath.” [3] Section 14 of the Canada Evidence Act , R.S.C., 1985, c. C-5, provides an alternative to an oath by way of solemn affirmation: 14(1) A person may, instead of taking an oath, make the following solemn affirmation: I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth. (2) Where a person makes a solemn affirmation in accordance with subsection (1), his evidence shall be taken and have the same effect as if taken under oath. [4] The respondent accepts that the most critical witnesses in this trial – the complainant, her friend, and the appellant – were neither sworn nor affirmed in accordance with the statutory requirements. Even so, the respondent argues that s. 686(1)(b)(iv) of the Criminal Code can be applied to cure what is described as a procedural irregularity, given that the witnesses who were 16 and 17 years of age at the time understood the need to tell the truth even though they were not placed under oath or affirmed: see R. v. Esseghaier , 2021 SCC 9, 454 D.L.R. (4th) 179, at para. 39. [1] [5] In our view, this is not an appropriate case in which to apply the procedural proviso. [6] We do not accept in this case, one that turned completely on the credibility of the unsworn and unaffirmed witnesses, that the failure to administer oaths or affirmations was as benign as suggested. The respondent is right to point out that there were some limited exchanges with the Crown witnesses, who testified by video link, about whether they would “promise” to tell the truth and the legal nature of a promise. As for the appellant, he was asked if he wanted to “take an oath on the Bible or would… prefer a promise”. He responded, “Yeah, promise.” [7] While we accept the respondent’s observation that everyone in the courtroom proceeded as though the witnesses had been properly affirmed, they were not and, in our view, the casual manner in which the promises were made, including answers such as “yeah” and “okay” in response to general questions about whether the witnesses were “comfortable” with promising or whether they understood that a promise is legally binding, did not in the circumstances of this case act as a “functional equivalent” of an oath or affirmation, as the Crown submitted. [8] Therefore, despite the respondent’s capable arguments, we are not able to conclude that the accused suffered no prejudice in this case. [9] The conviction appeal is allowed and a new trial is ordered. “Fairburn A.C.J.O.” “Paul Rouleau J.A.” “Grant Huscroft J.A.” [1] The respondent also acknowledges that there is some uncertainty as to whether s. 686(1)(b)(iii) might also be used to proviso an error relating to the swearing or affirming of witnesses. We agree, with the respondent’s submission, that this issue need not be resolved in this case.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Kaczmarek, 2021 ONCA 771 DATE: 20211101 DOCKET: C68073 & C68410 Watt, Pardu and Trotter JJ.A. DOCKET: C68073 BETWEEN Her Majesty the Queen Respondent and David Kaczmarek Appellant DOCKET: C68410 AND BETWEEN Her Majesty the Queen Respondent and Terrell Sullivan Appellant Michael Hayworth, for the appellant David Kaczmarek Mindy Caterina, for the appellant Terrell Sullivan Samuel Greene, for the respondent Crown Heard: June 29, 2021 by video conference On appeal from the convictions entered by Justice John A. Desotti of the Superior Court of Justice, dated February 13, 2019, and from the sentence imposed on Terrell Sullivan on May 3, 2019. Trotter J.A.: A. INTRODUCTION [1] After a day of heavy drinking with some girlfriends, the complainant found herself in a stranger’s apartment, being sexually assaulted by the appellants. [2] Shortly before, the complainant was in another apartment unit in the same building. She left that apartment, shoeless and heavily intoxicated, in search of her friend. The complainant had a vague recollection of being in an elevator with the two men, and then being in the apartment. The next thing she remembered was being sexually assaulted by the appellants while she was being held down on a couch. The complainant told them to stop on more than one occasion. When they eventually did, she fled the apartment. [3] The appellants were found guilty of sexual assault. The trial judge found that the complainant lacked the capacity to consent, and she did not agree to the sexual activity with either man. He sentenced them both to three years’ imprisonment. [4] The appellants appeal their convictions. They attack various aspects of the trial judge’s reasons for judgment. Mr. Kaczmarek also appeals his conviction on the basis that he received ineffective assistance from his trial counsel. Mr. Sullivan appeals his sentence. [5] The following reasons explain why I would dismiss the conviction appeals and Mr. Sullivan’s sentence appeal. B. FACTUAL OVERVIEW (1) Introduction [6] At the time of the offences, the complainant was 19 years old, 5’2” tall, and weighed 100 lbs. [7] It was not disputed at trial that the appellants engaged in sexual activity with the complainant, at the same time. Neither could be excluded as the sources of DNA found in the complainant’s vagina (Mr. Sullivan) or mouth (Mr. Kaczmarek). [8] The contentious issues at trial were whether: (1) the complainant had the capacity to consent to the sexual activity; (2) she agreed to the sexual activity; and (3) the appellants had an honest but mistaken belief that the complainant consented. Neither appellant testified, but as discussed below, Mr. Kaczmarek now contends that, despite his wishes, trial counsel prevented him from doing so. (2) At A.B.’s Apartment [9] The day’s events started out at the apartment of A.B., the complainant’s best friend. Another friend, K., came to the apartment at 9:30 a.m. and the two went to the LCBO and purchased an assortment of alcohol. The two women started drinking as they walked back to the apartment. A.B. said the complainant joined them at noon; the complainant said it was 3:00 p.m., although she was not sure. Both acknowledged having memory problems because of their alcohol consumption. Nonetheless, they both testified that they drank a lot of alcohol, including shots of liquor. Neither was keeping track of how much was consumed, but they were very intoxicated. (3) Shelby and Austin’s Apartment [10] After spending time at A.B.’s apartment, the three women left and went to a nearby park, where they continued drinking. They eventually walked to another building where their friends Shelby and Austin had an apartment. They arrived between 4:00 p.m. to 5:30 p.m. A.B. testified that all three women were drunk. She described the complainant as being “hammered.” [11] At the apartment, A.B. had a conversation with a male guest in a bedroom, while the complainant socialized with others. At some point, K. left the apartment. The complainant described K. as having “gone missing” and remembered leaving the apartment, by herself, to look for her. [12] Someone told A.B. that the complainant left the apartment without her shoes. A.B. went looking for her. When she could not find the complainant, she went back to her own apartment. As discussed below, she was summoned back to Shelby and Austin’s at 7:40 p.m. that night. (4) The Sexual Assault [13] The complainant gave a fragmented account of what transpired after she left Shelby and Austin’s apartment. When asked what happened next, she testified, “I suppose I was abducted. I don’t know.” The complainant continued: I guess we ended up upstairs. We must’ve taken the elevator. I don’t know how I got up there. I don’t even know how I met them. Just ended upstairs and then from there, it’s kind of blank. The complainant explained that she has a fear of elevators, so she was confused as to how she ended up in the elevator in the first place. [14] The complainant remembered being on a balcony and having something to drink in the apartment, but she did not know whether it was alcohol. She said the appellants “forced themselves on me.” She was with Mr. Kaczmarek and Mr. Sullivan “disappeared” into what she surmised was “his room” or the washroom, but then came back to the living room. The complainant testified: I don’t remember how it started. I was blackout. I don’t remember anything and then I came to or sobered up and realized what was happening as it was happening. (emphasis added). [15] The complainant said she was bent over, face down on a sofa. She was penetrated from behind by both appellants. While it was happening, the complainant tried to get up but she was being pushed down into the sofa by Mr. Kaczmarek, who was behind her. The complainant testified she said “stop” when “I had one behind me penetrating me from behind, and I had one in my mouth.” She believed that Mr. Kaczmarek was the former; Mr. Sullivan the latter. She was unable to say how often or how loudly she asked them to stop. The complainant said one of them (Mr. Sullivan) “finished” or “got done” first and walked away; then the other one (Mr. Kaczmarek) “got done” or “finished or gave up, I don’t know, got up, walked away.” [16] The complainant fled the apartment as soon as she could and ran down the stairs, trying to find Shelby and Austin’s apartment. She did not know what floor she was on, or how many floors she had to descend to get back to their apartment. When she eventually found the apartment, someone called A.B. and asked her to return. This was at 7:40 p.m. A.B. ran back to Shelby and Austin’s apartment barefoot. It took her roughly 20 to 25 minutes to get there. [17] According to A.B., the complainant was “a mess”, curled up in a ball on the bathroom floor, crying uncontrollably and hyperventilating. A.B. and the complainant were driven back to A.B.’s apartment, where A.B. eventually persuaded the complainant to call the police. The police arrived at A.B.’s apartment at 11:05 p.m. and spoke to the two women. The complainant was taken to the hospital for examination. (5) The Note in the Apartment [18] The complainant was cross-examined about a note that was found in the apartment where she was assaulted. It contained the complainant’s contact details. It was not in her handwriting. The complainant could not remember providing this information to either appellant. She said that the email address “sort of” looked like hers. It was an admitted fact at trial that Mr. Kaczmarek gave this note to the police. He told an officer that he had changed part of the phone number on the note from “666” to “888” because “he was not comfortable with those numbers in his apartment.” (6) The Complainant’s Statement [19] The complainant was cross-examined on a statement she gave to the police on the night she reported the assault. In the course of making this statement, she said “I must have said yes to the first guy because there was one guy and we were getting it on and I don’t remember saying anything like stop”. She also said she would not have agreed to the other person joining in. [20] The complainant testified that she made this statement “because I don’t remember if I said yes or not, but it was happening so … I don’t remember.” (7) The Trial Judge’s Reasons [21] As discussed in more detail below, the trial judge first addressed the issue of the complainant’s capacity to consent to having sex with the appellants. He accepted her evidence that she was unconscious and only realized what was happening when she “came to.” The trial judge went on to conclude that, based on the complainant’s evidence that she asked the appellants to stop after she “came to”, she did not agree to the sexual activity that subsequently occurred. Lastly, the trial judge rejected the claim that the appellants had an honest but mistaken belief that the complainant consented to the sexual activity. C. THE CONVICTION APPEAL (1) Capacity and Consent (Mr. Kaczmarek & Mr. Sullivan) (a) Introduction [22] Both appellants submit that the trial judge erred in various ways in concluding that the complainant lacked the capacity to consent, and that she did not agree to the sexual activity with the appellants. Although they initially appealed the trial judge’s rejection of their claim of mistaken belief in consent, the appellants abandoned this ground during the hearing of the appeal. [23] In order to succeed, the appellants must establish that the trial judge erred in relation to both the issues of capacity to consent and whether the complainant agreed to the sexual activity with the appellants. In my view, this appeal can be disposed of on the issue of capacity alone. [24] The appellants submit that the trial judge erred in addressing the issue of capacity before determining whether the complainant consented to the sexual activity with the appellants. The appellants contend that the evidence fell short of proving that the complainant lacked the capacity to consent, largely because it came from two unreliable witnesses: the complainant and A.B. In order to make a finding of incapacity, more evidence was required, from other witnesses. The appellants also submit that the trial judge erred by equating the complainant’s lack of memory with a lack of capacity. Lastly, they also submit that the trial judge reversed the burden of proof. I would reject each of these arguments. (b) Evidence of the Complainant’s Intoxication [25] Before delving into these issues, I highlight the evidence concerning the complainant’s sobriety that day. The evidence of her condition at the time of the sexual activity comes from the complainant alone. However, the complainant’s consumption of alcohol and her sobriety before and after the incident are informed by the evidence of both the complainant and A.B. [26] As noted above, alcohol was purchased by A.B. and K. around 9:30 a.m. that day. A.B. and the complainant were imprecise about how much they consumed. However, they both described drinking enough alcohol to make them extremely intoxicated. As the complainant said: “I was drinking all afternoon. I was already blackout drunk. I was walking around barefoot, without a cellphone and no one with me.” [27] On a scale of one to ten, she said it was “ten” – “I’ve never been blackout drunk in my life except for that day.” By the time she got to the hospital, she said it was a “four”. She agreed with the suggestion that blackout “describes kind of not knowing what’s occurring until you come-to”. As noted, when the police asked her if she could have agreed to sexual activity with them, she said, “Well, it’s possible. I was completely blackout drunk so.” [28] A.B. said the complainant was very drunk or “hammered” before she left the apartment in search of K. When A.B. returned to Shelby and Austin’s after the 7:40 p.m. call, she described the complainant as “a mess”. A.B. could not understand what the complainant was trying to tell her because she was not making sense. [29] The other witness who testified about sobriety was a police officer who responded to the 911 call. He did not notice any overt signs of impairment in relation to either woman. However, that was at 11:05 p.m., well after the incident. (c) The Order of the Trial Judge’s Findings [30] The appellants submit that the trial judge erred in addressing the issue of capacity before deciding whether the complainant agreed to the sexual activity with the appellants. They say this ran afoul of the Supreme Court of Canada’s holding in R. v. Hutchison , 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 4. The appellants submit that this decision requires a trial judge to address the issue of consent before considering questions of capacity. [31] However, in R. v. G.F. , 2021 SCC 20, 71 C.R. (7th) 1, at para. 50, the court clarified that Hutchison was concerned only with apparent consent and whether consent had been vitiated; it “has nothing to do with incapacity”. Karakatsanis J. wrote, at para. 24, that when a trial involves the issues of capacity and whether the complainant agreed to engage in the sexual activity in question, “the trial judge is not necessarily required to address them separately or in any particular order as they both go to the complainant’s subjective consent to sexual activity.” [32] The trial judge made no error in the order in which he chose to address these issues. (d) The Finding of Incapacity Was Reasonable [33] The appellants submit that the trial judge erred in how he approached the issue of capacity. First, they submit that he wrongly equated the complainant’s lack of memory with incapacity. Moreover, they submit that the trial judge’s finding of incapacity was unreasonable and not supported by the evidence. I disagree with both submissions. [34] The trial judge did not equate lack of memory with incapacity. The trial judge referred to this court’s decision in R. v. C.P. , 2019 ONCA 85, 373 C.C.C. (3d) 244, aff’d 2021 SCC 19, 71 C.R. (7th) 118, noting that, “the appellate court affirmed the oft stated position that an inability to remember something does not necessarily mean that the person was acting without capacity.” [35] More generally, the trial judge did not err in how he conceptualized the issue of capacity. He reviewed numerous appellate decisions, including the decision of the Nova Scotia Court of Appeal in R. v. Al-Rawi , 2018 NSCA 10, 359 C.C.C. (3d) 237, in which Beveridge J.A. held that capacity to consent involves an operating mind capable of “appreciating the nature and quality of the sexual activity”; “knowing the identity of the person or persons wishing to engage in the sexual activity”; or “understanding she could agree or decline to engage in, or to continue, the sexual activity”: at para. 66. [36] The trial judge accepted the complainant’s description of her own sobriety, including that she was “blackout drunk”, which he found to be “a vivid and descriptive expression capturing the level of intoxication she was experiencing.” He ultimately found that the complainant had lost consciousness at some point and only regained consciousness after the sexual activity was already happening. As the trial judge said: Forgetting for the moment that she told the two accused to “stop”, but did not know how many times she told them to “stop” or how loud or if they heard her. Her initial involvement in this sexual activity came about because of her gross intoxication, her “blackout”. To wake up or become conscious and then to find oneself engaged in a sexual activity with strangers, as did the complainant, S.D. when there is no independent memory of the how, when or why of this sexual activity, is certainly by every objective reasoning, an indication of the incapacity of a complainant . [Emphasis added.] [37] The trial judge’s reasons are in accord with Supreme Court of Canada jurisprudence concerning capacity to consent to sexual activity: see R. v. J.A. , 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 34-37, 66; C.P. , and R. v. Barton , 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88. [38] The principles in these cases were recently discussed in G.F. The court underscored that, at its base, “the capacity to consent requires that the complainant have an operating mind capable of understanding each element of the sexual activity in question: the physical act, its sexual nature, and the specific identify of their partner”: at para. 55. Karakatsanis J. also provided the following summary, at paras. 57-58: In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things: 1. the physical act; 2. that the act is sexual in nature; 3. the specific identity of the complainant’s partner or partners; and 4. that they have the choice to refuse to participate in the sexual activity. The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors. If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective intent to vitiate. [Emphasis added.] [39] The court reiterated what was confirmed in J.A. : “an unconscious complainant could not provide contemporaneous consent”: at para. 56. This proposition was at the heart of the trial judge’s finding on incapacity. [40] The evidence supported the trial judge’s conclusion that at some point during the incident with the appellants, the complainant lost consciousness and was incapacitated. It was open to the trial judge to accept the evidence of the complainant and A.B. on the complainant’s general level of intoxication that day, and the complainant’s own description of her level of cognition at the time of the sexual activity. Equally, he was entitled to reject the submission that the complainant and A.B. were unreliable witnesses. [41] The appellants point to other cases in which the complainant’s incapacity was proved through evidence independent of the complainant. In C.P. , for instance, the complainant’s incapacity was proved through the observations of a friend, who came upon the complainant immediately after sexual intercourse had occurred. The complainant had been vomiting, she could not get up, and she was incapable of communicatin g . [42] C.P. must be placed in context. In that case, the complainant did not testify because she had no memory of the event. As such, a self-report about her level of sobriety was unavailable; the information had to come from other sources. [43] In this case, the complainant had fragmented memories. She was able to narrate her own situation, but only to a point. The trial judge’s incapacity finding hinged on his acceptance of the complainant’s evidence that she only realized what was happening to her when she “came to.” By definition, before she “came to”, she was in a state of unconsciousness, incapable of consenting due to a complete lack of agency. [1] [44] The appellants submit that more was required to prove incapacity, such as objective evidence of the complainant’s condition at the time. They point to the fact that there was no evidence of profound intoxication after the event, such as vomiting. This submission amounts to an insistence that the complainant’s evidence had to be corroborated. Such a requirement was pruned from the law of sexual assault many years ago: Criminal Code , R.S.C. 1985, c. C-46, s. 274; Hamish C. Stewart, Sexual Offences in Canadian Law (Toronto: Carswell, 2021), at 7:1, 7:8 and 7:9. It is not resurrected simply because of the evidentiary challenges that sometimes accompany incapacity cases. Complainants are capable of self-authenticating their own incapacity, as the complainant did in this case. [45] In any event, the complainant’s evidence did not stand alone. The evidence of A.B. provided important context for the complainant’s evidence. She gave evidence of the complainant’s highly intoxicated condition both before and after the incident with the appellants. As noted above, in the aftermath, A.B. described the complainant as crying uncontrollably, hyperventilating, and not making any sense in describing what happened to her. A.B. said that “she was just a mess”. [46] Based on all of the evidence, it was open to the trial judge to find that the complainant lacked the capacity to consent to engage in sexual activity with the appellants. (e) The Burden of Proof Was Not Reversed [47] The appellants point to certain passages in the trial judge’s reasons that they say are indicative of the reversal of the burden of proof. However, when viewed as a whole, it is clear that the trial judge did no such thing. [48] On the issue of incapacity, the trial judge said: “The onus is correctly stated to be on the Crown to establish that the complainant, S.D. was so intoxicated that she was incapacitated at the material time to engage in the sexual activity that occurred.” Once the trial judge accepted the complainant’s evidence that she “came to” and only became aware of the sexual activity “as it was happening”, a finding of incapacity was inevitable. The complainant’s evidence stood uncontradicted on this issue. The appellants did not seriously challenge the evidence relating to the complainant or A.B.’s alcohol consumption and their self-reports of being very intoxicated. Instead, they relied on this evidence to assert that both women were unreliable witnesses, leaving room for reasonable doubt. [49] To the extent that the trial judge made references to the absence of evidence at various points in his reasons, he did so partly in the context of addressing the mistake of fact in consent issue. More broadly, the trial judge did not err in pointing out the absence of evidence contradicting the complainant’s account. These statements did not amount to a reversal of the burden of proof, especially in light of the trial judge’s statement set out above. (f) Conclusion [50] The trial judge appropriately articulated the test for incapacity. His findings were sound. Accordingly, I would dismiss this ground of appeal. In the circumstances, it is not necessary to evaluate the trial judge’s conclusion that the complainant did not agree to the sexual activity in question. (2) Ineffective Assistance of Counsel (Mr. Kaczmarek) (a) Introduction [51] Mr. Kaczmarek submits that he wished to testify in his own defence but was prevented from doing so by trial counsel. [52] Mr. Kaczmarek submits that he had an exculpatory narrative he wished to share. He relies on his statement to the police in which he said the complainant was not as intoxicated as she claimed, and that she was a willing participant in the sexual activity with himself and Mr. Sullivan. Mr. Kaczmarek submits his trial counsel repeatedly discouraged him from testifying and that his reasons for giving this advice reflect incompetence. In the end, trial counsel usurped his decision and prevented him from testifying. [53] Mr. Kaczmarek has failed to establish that his trial counsel provided incompetent legal advice, or that he countermanded his decision to testify. Trial counsel’s concerns about Mr. Kaczmarek’s anticipated performance as a witness were well-founded. Moreover, the fresh evidence admitted on appeal suggests that Mr. Kaczmarek followed his trial counsel’s advice not to testify, but then regretted his decision when it did not work out as he had hoped. By the time he changed his mind, it was too late; the trial was over and sentencing submissions had been completed. An application to reopen would have been futile. [54] Reaching this conclusion, however, is not without its challenges. This is another ineffective assistance of counsel (“IAC”) case where trial counsel failed to obtain written instructions from a client concerning the decision to testify: see R. v. Trought , 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 76-78. Unfortunately, in order to resolve the relevant issues on appeal, resort must be made to the duelling affidavits and cross-examinations of Mr. Kaczmarek and trial counsel. Although failure to obtain written instructions is not necessarily an indicium of ineffectiveness, it presents challenges for appellate review. It is also in tension with “the strong presumption of competence in favour of counsel”: R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 140-42. (b) The Competing Accounts (i) Mr. Kaczmarek [55] Mr. Kaczmarek was 31 years old at the time of the offence; he was 33 at trial. It is known from his Pre-Sentence Report (“PSR”) that he has a criminal record that includes convictions for offences of dishonesty and offences against the administration of justice. All of his convictions were registered after the offence in this case. [56] Mr. Kaczmarek was in a car accident in 2007 and sustained significant injuries, including head trauma. This resulted in an acquired brain injury and memory loss. He reported to the author of the PSR that he has suffered mental health problems and has been hospitalized. He was assessed as having schizoaffective disorder and bipolar disorder and has been taking medications for many years. The PSR also indicates that Mr. Kaczmarek has a long history of alcohol, cannabis, cocaine, and methamphetamine use. He may have been using the latter at the time of the offence. [57] Mr. Kaczmarek swore an affidavit in support of his IAC claim and submitted to cross-examination. He agreed that he spoke to trial counsel before his police interview and was advised to exercise his right to remain silent. He did not. In cross-examination, he acknowledged that he should have heeded that advice. [58] Mr. Kaczmarek recalled that he spoke with trial counsel a number of times about whether he would testify at trial. He claims that, after the complainant finished testifying (on January 31, 2019), he “insisted that I wished to testify because I had a significantly different version of events that I wanted the trial judge to consider.” He said that his trial counsel told him that he “’would not look good on the stand’” because he tended to “‘trail on with [his] words’ and would not look credible on the stand”. In cross-examination, Mr. Kaczmarek acknowledged, “And I do talk. I am a conversationalist.” Mr. Kaczmarek swore that trial counsel also told him that his drug use and mental illness would harm his credibility. [59] Mr. Kaczmarek said that he “protested several times against my trial counsel’s refusal to abide by wish to testify during our discussion but, despite my serious misgivings about my trial counsel’s advice, eventually felt that this a discretionary decision to be made by my trial counsel.” He denied ever being told that the decision was his to make. However, in cross-examination on his affidavit, Mr. Kaczmarek admitted that at a meeting on February 1, 2019, the day after the complainant testified, he met with trial counsel who advised him not to testify and he replied “okay”. He testified that “in my head I was thinking I’ll wait ‘til it’s my turn to testify.” He acknowledged that this was never conveyed to trial counsel. He said that trial counsel told him “I have a couple of tricks up my sleeve.” [60] In his statement to the police, Mr. Kaczmarek denied ever penetrating the complainant vaginally. He said that he only had oral sex with the complainant. In his affidavit, Mr. Kaczmarek alleged that his trial counsel failed to challenge the complainant on whether Mr. Kaczmarek penetrated her vaginally and about whether she was drunk that night. During his cross-examination, he was shown excerpts from the trial transcripts that show that she was questioned about these issues. He acknowledged he was wrong and said the errors were the result of the challenges of preparing his affidavit during the COVID-19 pandemic. (ii) Trial Counsel [61] Trial counsel, a lawyer with 45 years’ experience in criminal litigation, was representing Mr. Kaczmarek in respect of other criminal matters when he was charged with the sexual assault in this case. When Mr. Kaczmarek was arrested, trial counsel spoke with him for about 30 minutes and “repeatedly advised [him] to exercise his right to silence and say nothing” because he thought he would make inculpatory statements. [62] Trial counsel swore that he met with Mr. Kaczmarek approximately five times before trial. They often spoke about whether Mr. Kaczmarek would testify. Trial counsel told him that the decision was his to make, but advised him that it was not in his best interest to do so. Trial counsel explained that Mr. Kaczmarek “tended to ramble and made statements regarding his relationship[s] with women that were not helpful to his case.” [63] Trial counsel formed this opinion from his experience in representing Mr. Kaczmarek at a previous sexual assault trial. Mr. Kaczmarek testified in his own defence. Although he was acquitted, the trial judge (who was not the trial judge in this case) found Mr. Kaczmarek to be not credible. Trial counsel said that his client had done poorly during his examination-in-chief and “just went to pieces” in cross-examination. Trial counsel said, “He just – he rambles, and there’s no reeling him in.” He was confident that he could keep his client on track during examination-in-chief but predicted that things would deteriorate in cross-examination. Mr. Kaczmarek has a tendency to want to please other people and “makes admission … some of them are detrimental.” Trial counsel referenced Mr. Kaczmarek’s police statement, in which he said, when the complainant and Mr. Sullivan became intimate, he (Mr. Kaczmarek) “threw in a couple of moves.” [64] Trial counsel explained that another reason he thought it was inadvisable for his client to testify was that Mr. Kaczmarek’s statement differed from Mr. Sullivan’s police statement. Mr. Sullivan said that both men had penetrated the complainant vaginally, just as she had described in her evidence. Trial counsel was under the impression that, if his client testified, Mr. Sullivan would also testify. This would be damaging to his client who maintained that he never penetrated the complainant vaginally. [65] Despite advising Mr. Kaczmarek multiple times not to testify, trial counsel said, “Up until the close of the Crown’s case at trial, I believed [Mr. Kaczmarek] would disregard my advice and testify in order to portray himself in what he thought would be a positive light.” Trial counsel agrees that he spoke with Mr. Kaczmarek after the complainant testified (on January 31, 2019) and his client said he wanted to testify. Trial counsel repeated his advice. That evening, trial counsel told counsel for Mr. Sullivan that he expected his client to testify. [66] The following morning (February 1, 2019) trial counsel spoke to Mr. Kaczmarek, who was in “good spirits.” Trial counsel said, “He was smiling, and seemed confident. He told me he had thought the matter over and decided to follow my advice and not testify.” In cross-examination, trial counsel said that his client told him, “you never led me wrong. I’m going to take your advice.” However, he denied telling Mr. Kaczmarek that he had “a couple of tricks up his sleeve.” [67] Neither appellant called a defence. The trial judge heard submissions on February 4 and 7, 2019. The trial was adjourned while the trial judge took the matter under reserve. On February 13, 2019, the trial judge found both appellants guilty. In his affidavit, trial counsel said that, upon hearing the verdict, Mr. Kaczmarek immediately said that he wished to testify. Trial counsel said, “That was the first and only time [Mr. Kaczmarek] told me to call him to testify. I told him it was not possible to do so at that stage, because the trial was over, and he would have to appeal if he wished to challenge the verdict.” [68] Prior to trial counsel’s cross-examination, he sent an email to the Crown to advise that he had in fact not been in attendance for the verdict; an agent appeared on his behalf. He said that the incident he had previously described occurred once sentence was passed. This too was incorrect. In cross-examination, he said that he received these instructions after sentencing submissions were made (on April 4, 2019), not upon the passing of sentence. This is supported by trial counsel’s contemporaneous note, in which he wrote “client now wants to testify. Told him too late. Didn't understand. Had to appeal.” [69] Trial counsel disputes many of the claims in Mr. Kaczmarek’s affidavit. He did not reference his client’s drug use and mental health challenges when attempting to dissuade him from testifying. Trial counsel only learned of this client’s mental illness when reading the PSR. Moreover, contrary to Mr. Kaczmarek’s contention, he did prepare his client to testify. When trial counsel believed that his client would disregard his advice about testifying, he told him that he “should have his prior statement straight in his mind and stick to it.” Given Mr. Kaczmarek’s previous performance as a witness, trial counsel thought it would be fruitless to conduct a dry run of his testimony. [70] Trial counsel disputes the allegations of an inadequate cross-examination of the complainant. He contends that he challenged her on the important aspects of her evidence, including the sequence of events, who did what, and her level of intoxication. As he points out, counsel for Mr. Sullivan pursued similar lines of questioning. The two lawyers coordinated their efforts in defending the case. [71] Mr. Kaczmarek contends that trial counsel ought to have moved to re-open the case so that he could testify. Trial counsel testified that he “didn’t think there was any hope” of reopening at that stage of the proceedings (i.e., at the conclusion of sentencing submissions). [72] As noted above, trial counsel did not obtain written instructions from Mr. Kaczmarek about whether he would testify. Trial counsel said that, when his client told him that he would follow the advice not to testify, they were due back in court and his client (who was in custody) was “hustled out of” the room where they met. There was no time to obtain instructions. He also said that obtaining written instructions “slipped [his] mind.” He further said that, because he had a long-standing relationship with the appellant, he did not feel uncomfortable in not obtaining written instructions. [73] Lastly, trial counsel volunteered in cross-examination that he suffers from a medical condition that affects his memory. However, he said that it did not affect his memory about anything to do with this case. It has never caused him to think he remembered things that did not actually happen. (c) Analysis [74] The applicable legal principles for ineffective assistance of counsel claims are well-established. To succeed, Mr. Kaczmarek must establish: (1) the facts material to the claim of ineffective assistance on a balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation resulted in a miscarriage of justice: R. v. G.D.B. , 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27; R. v. Joanisse (1995), 102 C.C.C. (3d) 35, at pp. 43-46. [75] The decision whether to testify at a criminal trial belongs to the accused person: G. Arthur Martin, “The Role and Responsibility of the Defence Advocate” (1969-1970), 12:4 Crim. L.Q. 376, at pp. 386-87; Trought , at paras. 46-47. The Crown concedes that, “if [Mr.] Kaczmarek can prove trial counsel disregarded an instruction to call him to testify, or never advised him of his right to make that decision, his IAC claim should prevail.” This is based on the acknowledgement that the decision is “fundamental” and “the prejudice arising from its loss is obvious.” [76] In making the decision whether or not to testify, an accused person is entitled to competent advice from counsel. In R. v. K.K.M. , 2020 ONCA 736, Doherty J.A. said, at para. 91: “An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying.” [77] This court has struck a cautious tone when considering a claim that trial counsel usurped or compromised an appellant’s decision to testify, noting that there is sometimes a strong motive to fabricate such an allegation after being convicted and sentenced to jail: Archer , at paras. 140-42; R. v. Nwagwu , 2015 ONCA 526, at paras. 11-12. [78] Applying these principles to this case, I am of the view that Mr. Kaczmarek has not established on a balance of probabilities that his desire to testify was overridden by his trial counsel, nor that the advice he was given was wanting. [79] As the Crown points out, Mr. Kaczmarek has a criminal record that is relevant to his credibility. Moreover, Mr. Kaczmarek proved himself to be a poor historian of what occurred at trial, and this undermines his ineffective assistance of counsel claim. As noted above, in cross-examination on his affidavit, he was forced to back off of two allegations of incompetence leveled against his trial counsel: (a) that trial counsel failed to question the complainant about her assertion that Mr. Kaczmarek had vaginal intercourse with her; and (b) that trial counsel failed to question the complainant on her degree of intoxication that night. [80] Additionally, Mr. Kaczmarek’s apparent understanding of the nature of the decision to testify changed over time. At one point he said that he thought it was a matter in the “discretion” of his trial counsel; at other times he said that he was simply waiting until it was his turn to testify. Beyond the contradiction, the latter claim is difficult to accept. Although Mr. Kaczmarek faces certain challenges in his life as detailed in the PSR, he presented as an intelligent person in his cross-examination on his affidavit. Moreover, he had already been through a different sexual assault trial at which he testified in his own defence. [81] This case differs from Trought , in which the IAC claim turned on the appellant’s understanding of the legal niceties of a blended voir dire , or R. v. Faudar , 2021 ONCA 226, in which the IAC claim concerned the appellant’s understanding of the complex doctrine of constructive possession. In this case, Mr. Kaczmarek’s assertion that he believed he could testify after he had already been convicted is implausible. It is telling that his direction to trial counsel came at the end of sentencing submissions, where the Crown had requested a sentence of three to five years’ imprisonment. The circumstances reflect a change of heart, not confusion. [82] Trial counsel’s evidence, however, was not without its shortcomings. As detailed above, he waivered on when he received Mr. Kaczmarek’s unequivocal instructions that he wished to testify. To review, he originally said it was immediately after verdict, but then remembered that he was not in court that day. Secondly, he said that it was after sentence was imposed on May 3, 2019, but that also turned out to be inaccurate. Ultimately, he remembered that the discussion occurred following sentencing submissions on April 4, 2019. [83] Nonetheless, trial counsel was consistent on the content of the exchange with Mr. Kaczmarek. Perhaps most importantly, this exchange was documented in trial counsel’s file. This is strong confirmation of trial counsel’s testimony that this was the first time he received clear instructions that his client wished to testify. [84] On appeal, Mr. Kaczmarek’s submits that, having received these instructions at the end of sentencing submissions, trial counsel should have moved to re-open the proceedings to provide his client with an opportunity to testify. After all, the case was adjourned for a month while the trial judge reserved his decision. [85] There can be no doubt that the trial judge, sitting without a jury, had jurisdiction to re-open the trial, vacate the finding of guilt, and permit a defence to be led. However, this power may only be exercised in “exceptional circumstances”: R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73; R. v. Griffith , 2013 ONCA 510, 116 O.R. (3d) 561, at paras. 12-17. Trial counsel was aware of this line authority. However, in cross-examination, he said that such an application would have been “hopeless”. [86] Trial counsel was undoubtedly correct. The timing of the request would likely have been viewed as an attempt to reverse a tactical choice to not testify. In R. v. Tortone (1992), 75 C.C.C. (3d) 50 (Ont. C.A.), rev’d in part, but not on this point, [1993] 2 S.C.R. 973, Goodman J.A. wrote, at p. 57: “It would be disastrous to the due administration of justice if an accused were permitted to wait until after a verdict has been rendered before making a decision as to whether he wished to give evidence in his defence, except in the most exceptional circumstances.” [87] In all of the circumstances, I would accept trial counsel’s account of the instructions he received from his client about his desire to testify. Trial counsel did not usurp his client’s decision on this fundamental issue. [88] On the related issue of whether trial counsel provided competent advice about whether Mr. Kaczmarek should testify, it is my view that his recommendations were sound. Trial counsel’s professional opinion that his client would not perform well was based on two factors: (a) his observations of his client’s testimony, as well as the trial judge’s credibility findings, at a previous sexual assault trial; and (b) his concerns with his client’s statement to the police in this case. Both were legitimate factors to take into account. [89] I have already discussed above, how counsel drew upon his earlier experience and observations at Mr. Kaczmarek’s previous sexual assault trial. It cannot be said that reliance on his client’s previous testimony rendered his advice incompetent. Indeed, counsel for Mr. Kaczmarek on appeal did not question trial counsel’s reliance on this factor. [90] Mr. Kaczmarek’s statement to the police is somewhat more complicated. It is true that the statement is exculpatory on certain issues, but it is concerning in other respects, both in form and in substance. During the interview, Mr. Kaczmarek demonstrated some of the same qualities that trial counsel described with respect to his testimony at the previous sexual assault trial. He tended to go on and on when giving his answers. He was voluble and tangential. Recall, Mr. Kaczmarek participated in this interview in the face of advice given to his counsel that he should exercise his right to remain silent. [91] Some of Mr. Kaczmarek’s comments in his statement were unhelpful to his cause. As noted above, he described a scenario in which the complainant and Mr. Sullivan were intimate and then he, “threw in a couple of moves.” Trial counsel testified that he still did not know what his client meant by his expression. Nonetheless, this trivializing expression was alarming in the face of the complainant’s serious allegation. [92] More importantly, Mr. Kaczmarek’s statement was at odds with Mr. Sullivan’s statement in an important respect. Mr. Sullivan said that the two men “switched” places and Mr. Kaczmarek did penetrate the complainant vaginally. Mr. Kaczmarek contends that DNA analysis confirms his version of events in that his DNA was found only in the complainant’s mouth, whereas Mr. Sullivan’s DNA was found in her vagina. However, the absence of Mr. Kaczmarek’s DNA in the complainant’s vagina does not confirm that he did not vaginally penetrate her; it merely fails to confirm that he did. [93] Thus, trial counsel had legitimate concerns that if his client testified in a manner consistent with his statement, it would likely result in Mr. Sullivan testifying in a manner consistent with his statement, undermining Mr. Kaczmarek’s position. [94] Accordingly, I am of the view that trial counsel’s legal advice that Mr. Kaczmarek should not testify was sound. [95] I would dismiss this ground of appeal. D. APPEAL AGAINST SENTENCE (MR. SULLIVAN) [96] Mr. Sullivan appeals his sentence of three years’ imprisonment. The appeal, however, is contingent on this court finding that the trial judge erred in concluding that the complainant lacked the capacity to consent, but upholding his finding of a lack of consent in fact. The appellant submits that continuing sexual activity after consent has been withdrawn is “materially different” and less morally blameworthy than engaging in sexual activity with someone who never consented in the first place, or who lacked the capacity to consent. [97] Strictly speaking, it is unnecessary to address this argument because I would uphold the trial judge’s finding on the capacity issue. However, I would reject Mr. Sullivan’s submission that his moral blameworthiness would somehow be reduced because he continued sexual activity after consent was withdrawn, as opposed to no consent being present in the first place. [98] This issue was considered in R. v. Garrett , 2014 ONCA 734. In that case, the complainant initially consented to kissing. However, the situation soon evolved into one of non-consensual intercourse, during which the complainant repeatedly told Garrett to stop, but to no avail. In allowing the Crown’s sentence appeal, this court held that failing to stop when in these circumstances, “constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence”: at para. 19. The court added that, “the complainant’s initial consent to kissing does not render less serious the subsequent non-consensual intercourse”: at para. 20. [99] Beyond this issue, the trial judge’s reasons for sentence reveal no error. Mr. Sullivan’s long-standing struggles, which include addiction and mental health issues, were properly considered by the trial judge. [100] Ultimately, the sentence imposed properly reflected Mr. Sullivan’s moral blameworthiness for his part in the concerted sexual exploitation of an extremely intoxicated young woman who was a stranger to the appellants. This type of predatory conduct must be met with a sentence that emphasizes deterrence and denunciation. [101] I would dismiss the appeal from sentence. E. CONCLUSION AND DISPOSITION [102] I would dismiss the appeals from conviction. I would grant leave to appeal to Mr. Sullivan to appeal his sentence but dismiss the sentence appeal. Released: November 1, 2021 “D.W.” “Gary Trotter J.A.” “I agree. David Watt J.A.” “I agree. G. Pardu J.A.” [1] Section 273.1(2)(a.1) of the Criminal Code provides that no consent is obtained if “the complainant is unconscious.” This provision was enacted after the appellants’ trial (S.C. 2018, c. 29, s. 19(2.1)) but it reflects the common law.

COURT OF APPEAL FOR ONTARIO CITATION: Yekrangian v. Boys, 2021 ONCA 777 DATE: 20211101 DOCKET: C68401 Fairburn A.C.J.O., Miller and Zarnett JJ.A. BETWEEN Seyedehzahra Delnaz Yekrangian and Elle Hariri Cameron Applicants (Appellants) and Christopher Allan Boys, Kristy Anne Boys and Stefan Brogren Respondents (Respondents) Melvyn L. Solmon and Rajiv Joshi, for the appellants Jonathan Barr and Amiri Moses Dear, for the respondents Heard: March 3, 2021 by video conference On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated May 12, 2020, with reasons reported at 2020 ONSC 2320, 20 R.P.R. (6th) 113. COSTS ENDORSEMENT [1] On September 17, 2021, this court released its reasons in Yekrangian v. Boys , 2021 ONCA 629 and invited submissions on costs of the appeal. Having reviewed the submissions of the parties, we are of the view that the respondents should be awarded their costs of the two pre-hearing motions. Given the divided success on the appeal, the parties should bear their own costs of the appeal. We would not disturb the costs order for the application below, given that the basis for the appellant’s partial success regarding 176 Strachan was an argument not advanced on the application. [2] The respondents are awarded costs in the amount of $1,000 for the Motion to Expedite the Appeal, as agreed at the hearing of that motion, and $7,000 for the Motion to Introduce Fresh Evidence, both inclusive of disbursements and HST. “Fairburn A.C.J.O.” “B.W. Miller J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Dimakis v. Vitucci, 2021 ONCA 778 DATE: 20211101 DOCKET: C68943 Doherty, Miller and Sossin JJ.A. BETWEEN Theoktiti Dimakis by her litigation guardian, Konstantine Dimakis, Theoktisti Dimakis by her litigation guardian, Konstantine Dimakis, Ekaterini Dimakis by her litigation guardian, Konstantine Dimakis, Eleftherios Dimakis by his litigation guardian, Konstantine Dimakis, and Konstantine Dimakis Plaintiffs (Appellants) and Cathleen Vitucci, William Vitucci, Kristi Collins, and Lancaster, Brooks & Welch, LLP Defendants (Respondents) Clifford Lloyd, for the plaintiffs (appellants) Michael R. Kestenberg, for the defendants (respondents) Kristi Collins and Lancaster, Brooks & Welch, LLP Michael J. Valente, for the defendants (respondents) Cathleen Vitucci and William Vitucci Heard and released orally: October 25, 2021 On appeal from the decision and order of Justice Parayeski of the Superior Court of Justice, dated December 20, 2020. REASONS FOR DECISION [1] The appeal is dismissed. We are in agreement with the first reason given by the summary motion judge for dismissing the claim (see Reasons, at para. 43). In the circumstances in which a discovery was conducted in accordance with the terms of a court direction, there can be no claim in negligence or otherwise against a lawyer for conducting the discovery in accordance with those terms despite the unfortunate event that occurred during the discovery. [2] We need not address the question of the applicability of absolute privilege. [3] We would grant leave to appeal the costs order, but in our view, the order made falls within the scope of the summary motion judge’s broad discretion and we would not interfere with the order made by him. Consequently, the appeal is dismissed. Leave to appeal costs is granted but that appeal is also dismissed. [4] The parties have agreed on the costs of the appeal. Costs to each of the respondents in the amount of $15,000, inclusive of disbursements and relevant taxes. “Doherty J.A.” “B.W. Miller J.A.” “L. Sossin J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Durigon, 2021 ONCA 775 DATE: 20211102 DOCKET: C65170 Fairburn A.C.J.O., Rouleau and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Sean Durigon Appellant Anthony Marchetti, for the appellant Stephanie A. Lewis, for the respondent Heard: October 26, 2021 by video conference On appeal from the sentence imposed on March 1, 2018 by Justice Bonnie J. Wein of the Superior Court of Justice, with reasons at 2018 ONSC 1424. REASONS FOR DECISION [1] The appellant was charged with possessing, accessing, and making available child pornography. The child pornography depicted videos of children being forced to engage in violent sexual conduct. Some of the children were mere toddlers. The appellant was also charged with possession of cocaine, to which he pleaded guilty at the outset of the trial. [2] After a judge alone trial, the appellant was convicted on all counts. The conviction for possession of child pornography was conditionally stayed. [3] This is an appeal from sentence against the 15-year prohibition order made pursuant to s. 161(1)(d) of the Criminal Code , R.S.C., 1985, c. C-46. The order prohibits the appellant from using the internet and other digital devices, except in accordance with a lengthy list of conditions that formed part of the order. [4] The appellant claims that the order is: (1) too long; (2) beyond that which is permitted by the statutory provisions; (3) too onerous; and (4) insufficiently tailored to the predicate offences. [5] The standard of review on an appeal against sentence is strict. Appellate intervention is only warranted if an error in principle impacted the sentence or if the sentence is demonstrably unfit and unreasonable in the circumstances. Sentencing judges exercise discretion in crafting s. 161(1) orders and are owed substantial deference as a result: R. v. Schulz , 2018 ONCA 598, 142 O.R. (3d) 128, at para. 43, leave to appeal refused, [2019] S.C.C.A. No. 537. [6] We see no error in how the sentencing judge arrived at her conclusion that the order should cover a period of 15 years. This issue was fully argued by the parties and addressed by the sentencing judge. It was open to the sentencing judge, on the record before her, to conclude that the prohibition order had to be in place for a substantial period of time to represent an effective risk mitigation tool. This was particularly true given the appellant’s conduct, which covered a lengthy period of time, and the fact that he had limited insight into the harm arising from his offending conduct. [7] Nor do we accept the submissions that the statutory provisions precluded the type of order made, or that it was too onerous and insufficiently tailored to the predicate offences. [8] Section 161(1)(d) is aimed at protecting children from sexual violence: R. v. K.R.J. , 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 44-47, 64. As s. 161(1) orders are “subject to the conditions or exemptions that the court directs”, they can be “carefully tailored to the circumstances of a particular offender”: K.R.J. , at para. 47. As noted in K.R.J. , at para. 47: The discretionary and flexible nature of s. 161 demonstrates that it was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community. [9] In our view, there is a clear nexus between the s. 161(1)(d) order in this case and the risks posed by the appellant. [10] While the order is directed at online activity, the very location from which the appellant accessed child pornography, it is tailored to balance reasonable access to the internet while nonetheless keeping children as safe from him as possible. [11] By way of example, the appellant is specifically permitted to use the internet for employment purposes, using a device provided by his employer. He is also permitted to access the internet from a personally owned computer for both employment and personal purposes. With respect to a personally owned computer, however, he must comply with the conditions imposed by the order, including that he can only have one email address at a time and must provide to a designated person information about any new devices he may acquire. As well, the appellant is not to use or activate any software that prevents computers or devices from retaining and/or displaying the history of internet use. [12] We do not intend to review every clause in the s. 161(1) order because, in the end, we see no error in how those clauses were arrived upon. While detailed in nature, this was a carefully tailored order, one that was specifically directed at the appellant’s level of risk. [13] Seeing no legal error, we defer to the order made with two exceptions, both of which are conceded by Crown counsel. [14] We accept the Crown concession that clause 4(a), requiring the appellant to inform a designated person of IP addresses he is or may be using, should include a reference to “ any IP addresses that he knows he is or may be using”. As the Crown explained, internet providers may change IP addresses without the user being informed. We note that, in the event that other terms in the order become unworkable due, for example, to changes in technology, s. 161(3) provides a mechanism to vary the order. [15] We also accept the Crown concession that, to the extent there are inspection and monitoring requirements in the order, they were not sufficiently tailored in terms of their length of time. The Crown asks that those conditions be changed to reflect a maximum duration of two years for purposes of monitoring and inspection. As it has been longer than two years since the start of this order, we see no need to address the appellant’s submission that these requirements violated the appellant’s rights to privacy and were beyond the scope of s. 161(1). Given the Crown concession, the concern has become moot. Therefore, clauses 4(c) and (d) of the prohibition order are to be deleted and the references to monitoring and inspection in clauses 4(f), (g), and (i) shall be removed. [16] The sentencing judge’s original order will be set aside and replaced by a new order drafted in accordance with these reasons. The setting aside of the old order and the introduction of the new order will take effect when the new order is signed. The parties will confer and provide the draft order to this court by no later than November 15, 2021. The sentence remains the same in all other respects. “Fairburn A.C.J.O.” “Paul Rouleau J.A.” “Grant Huscroft J.JA.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hudson, 2021 ONCA 772 DATE: 20211102 DOCKET: C65962 Doherty, Watt, van Rensburg, Benotto and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Jacinda Hudson Appellant Maija Martin, David Reeve and Iman Amin, for the appellant Sarah Shaikh, Chris Walsh and Jonathan Geiger, for the respondent Emily Marrocco, for the intervener, Attorney General for Ontario Owen Goddard and Rick Frank, for the intervener, Criminal Lawyers Association Heard: February 23, 2021 by video conference On appeal from the convictions entered by Justice Robert Charney of the Superior Court of Justice, sitting with a jury, on August 22, 2018. Watt J.A.: [1] A package for the appellant. From China. Delivered to her home by Canada Post. At least, it looked like Canada Post. [2] The appellant was not home when the package arrived. Her ex-boyfriend was there. He accepted delivery and took the package into the house. He told the appellant about the package. [3] About an hour later, police officers arrived at the appellant’s home. They had a search warrant. They found the package from China. They arrested the appellant’s ex-boyfriend. When the appellant got home, they arrested her too. [4] A jury found the appellant guilty of importing fentanyl and possession of fentanyl for the purpose of trafficking. The trial judge imposed sentences of eight years on each conviction to be served concurrently. [5] The appellant appeals her convictions. These reasons respond to her claims of judicial error in the conduct of the trial and explain why I would allow the appeal, set aside the convictions, and order a new trial. The Background Facts [6] A brief summary of the evidence received at trial will provide the background necessary to understand the issues raised on appeal and how I propose that they be decided. The Package [7] On October 18, 2016, members of the Canada Border Services Agency (“CBSA”) in Richmond, British Columbia intercepted three packages addressed to three different persons at addresses in Southern Ontario. The sender or consignor of each package was the same – DigitalPartner UNIKO of Guangdong, China. The packages were said to contain “digital cable” valued at $10. All were sent by post. The Contents of the Package [8] CBSA members opened each package. They found 323 grams of fentanyl in the package addressed to the appellant. The others contained similar amounts of fentanyl. The street value of the fentanyl in the package addressed to the appellant was $320,000. [9] Fentanyl is toxic. CBSA members delivered the package to the RCMP who removed the fentanyl from the package addressed to the appellant, replaced it with an inert substance, and then sent the package by plane so that it could be delivered to the appellant in Ontario. The General Warrant [10] Police obtained a general warrant on November 1, 2016, authorizing the RCMP to conduct a controlled delivery of the package to the appellant or anyone acting on her behalf at her Ajax home. The First Attempt at Delivery [11] At about 11:30 a.m. on November 4, 2016, an undercover police officer approached the appellant’s front door. The officer arrived in a Canada Post vehicle. He wore the uniform of a Canada Post delivery operator. He carried the package addressed to the appellant. [12] The officer rang the doorbell. He knocked on the door a couple of times. No one answered. He left. The appellant had left about an hour earlier. Her ex-boyfriend was in the house but did not get to the front door before the undercover officer had driven away. An immediate text exchange between the ex-boyfriend and later co-accused, Hazare Roman, and the appellant followed. The Text Messages [13] As the undercover officer attempted delivery, Hazare Roman and the appellant exchanged texts. When Roman advised the appellant that Canada Post was at the door, the appellant told him “Answer and sign”. When Roman replied that Canada Post had left before he (Roman) could get downstairs to the door, the appellant asked whether Canada Post had left anything. Roman said “No”. [14] About 20 minutes later, the appellant exchanged text messages with her friend, Louisa Munro. As she had the previous day, Munro advised the appellant “O said keep eyes ‘peeled’”. The appellant told Munro that Canada Post had been at her house: “Is it coming that way?”. Munro said “Ya”. The appellant asked “Like delivery?” to which Munro responded “IDK we’ll talk when you here”. The Return Home [15] About 20 minutes after her text exchange with Louisa Munro, the appellant drove up to her house, slowed down, looked at her house, and drove on. Minutes later, she returned, got out of her car, walked to the house, opened the front door and stepped inside briefly. When she came back outside, she looked inside the mailbox, got in her car and drove away. At trial, she testified that she looked in the mailbox for a courier slip telling her where to pick up the package. [16] A few minutes later, the appellant told Hazare Roman that the package was important. The Package Arrives [17] The undercover police officer, disguised as a Canada Post delivery person, returned at 12:50 p.m. the same day. He rang the doorbell and knocked. This time, Hazare Roman answered the door. When asked, Roman indicated that he would accept the parcel for the appellant. He took the package, printed “Jacinda” on the delivery bill, and signed with the appellant’s initials “J.H.”. The Appellant Gets Notice [18] Within minutes, Hazare Roman advised the appellant that he had her package. About 45 minutes later, the appellant told Roman “Perfect I’m OMW”. The Search and Arrest [19] About an hour after delivery of the package, the police arrived at the appellant’s home with a search warrant. The unopened package was on a front hall table near a photograph of the appellant and her children, a sunglass case, and 10 grams of cocaine. Three cellphones were on the bed in the master bedroom. The closet was full of only women’s clothes. The police arrested Hazare Roman and, after she returned home, the appellant. The Defence Case at Trial [20] At trial, the defence case consisted of the testimony of two witnesses. Louisa Munro testified first. The appellant was the final witness. Pared to its core, the defence was a denial of any involvement in importing fentanyl. The appellant was expecting a package from Louisa Munro’s mother in Nova Scotia containing books and children’s clothing, not fentanyl from China. The appellant also sought to adduce evidence that a known third party suspect, Raza Khan, the appellant’s former boyfriend and lessee of her home, was responsible for the importation. The application was dismissed. The dismissal is a ground of appeal. [21] Louisa Munro testified that her mother in Nova Scotia had collected several children’s books and other items she planned to send to the appellant. She thought that her mother would mail the package to the appellant. Their exchange of messages related to this package. Unexpectedly, Munro’s father drove to her home with the package after the appellant’s arrest. Munro had known the appellant for about five months before her arrest. Her mother had never previously sent a package to the appellant. Munro’s text reference to “O”, as in “O said keep eyes ‘peeled’”, was a mistype for “I” and referred to the package from her mother, not to a person “O”. [22] The appellant testified after Louisa Munro had given her evidence. The appellant said that she and Munro planned to go to a basketball game. Their text messages were about outfits to wear to the game. The Monday following her arrest, Munro gave her the package she had been expecting. [23] The appellant testified that, on the day of the controlled delivery, Roman was sleeping at her house. She called Munro to tell her that she was going to look for outfits to wear to the basketball game. Munro told the appellant about the package from her mother. When Roman explained that he had missed a delivery, the appellant believed that this was the package from Munro’s mother. She stopped off at home en route to Munro’s to see whether Canada Post had left a delivery slip after the first failed delivery. Later, Roman advised her of the arrival of the package. She did not hurry home to get it. The Third Party Suspect Application [24] After the case for the Crown had closed, but prior to electing whether to call a defence, the appellant sought a ruling on an application to adduce evidence of a third party suspect, the appellant’s former boyfriend, Raza Khan. [25] Raza Khan testified on the third party suspect voir dire . He gave evidence about helping the appellant obtain her home in Ajax. He had lived with her on and off for about ten months, but did not live there with her at that time. The lease was in his name and she paid rent directly to him. He admitted having sold cocaine and fentanyl in the past and having previously ordered different kinds of drugs online, including fentanyl. He neither took responsibility for the fentanyl in the package sent to the appellant, nor did he deny any involvement. He said he could not remember whether he had ordered drugs delivered to the appellant’s home in the past. Nor did he recall whether he had a key to the appellant’s home where he had not lived for a couple of years. The Grounds of Appeal [26] The appellant pursues several grounds of appeal. She contends that: i. the offence of importing is complete once controlled substances enter the country; ii. the conviction of importing fentanyl is unreasonable; iii. the conviction of possession of fentanyl for the purpose of trafficking is unreasonable; iv. the trial judge erred in failing to instruct the jury on circumstantial evidence, thus reversing the burden of proof; v. the trial judge erred in failing to instruct the jury on evidence of after-the-fact conduct; vi. the trial judge erred in permitting the jury to draw an adverse inference against the appellant because she was the last witness to testify; and vii. the trial judge erred in dismissing the appellant’s third party suspect application. Ground #1: The Essential Elements of Importing [27] This ground of appeal focuses on the essential elements of importing, in particular, on when the physical element or actus reus of importing is complete. The same issue arises in the companion case of R. v. Okojie (C68428), the reasons in which are being released at the same time as these. [28] In this case, the error alleged in determining the endpoint of the physical element or actus reus of importing is said to have had two consequences at trial. The jury was misdirected on the essential elements of the offence and, as a result, rendered an unreasonable verdict on that count. [29] To settle the issue raised in its proper environment, it is helpful to recall some features of the evidence adduced at trial and what the trial judge told the jury about importing. The Essential Background [30] The appellant was the addressee of a package sent by post from DigitalPartner UNIKO in Guangdong, China. The declaration on the package described its contents as a “digital cable” and its value as $10. The package arrived at the International Mail Centre in Richmond, British Columbia on October 18, 2016. The package was examined. It contained fentanyl. Due to the toxic nature of fentanyl, the controlled substance was removed, its nature confirmed by testing. Its street value was $320,000. [31] The package, absent the fentanyl, was forwarded by plane by the RCMP so that it could be delivered to the appellant at her Ajax residence. Prior to its delivery, the appellant exchanged texts with a friend, Louisa Munro, a person whom she had known for about five months, in which Munro said, “O said keep eye out”. The appellant responded, “Ok sweet”. The morning of the controlled delivery Munro sent another text: “O said keep eyes ‘peeled’”. [32] On November 4, 2016, about two weeks after the package had arrived in British Columbia, an undercover police officer, disguised as a Canada Post delivery person, attempted to deliver the package to the appellant’s home. The delivery, which was authorized by a general warrant, failed. The appellant was not home. Hazare Roman, an ex-boyfriend who was there, did not get to the door before the undercover officer left. [33] An exchange of text messages followed with the ex-boyfriend about the failed delivery and its importance to the appellant. The appellant returned home, checked her mailbox for a courier slip and went into her house searching for any sign of the package. She then left. [34] About an hour later, the disguised undercover officer returned. He delivered the package to the appellant’s ex-boyfriend who accepted it on her behalf. Before the appellant returned home after being told about the delivery of the package, police executed a search warrant at the appellant’s home. They found the package, unopened, on a table in the front hall. Police arrested the appellant when she returned home. She said nothing about an “important package” and denied expecting delivery of a package when questioned by police. The Charge to the Jury [35] The trial judge distributed copies of his proposed instructions to the jury to counsel and discussed their content with them. Trial counsel for the appellant (not counsel on appeal) did not object to the instructions about importing either before or after they were delivered. [36] After posing the first question for the jurors to answer as “Did Jacinda Hudson import a substance into Canada?”, the trial judge explained: To import something into Canada means to bring it into the country, or cause someone else to bring it in, from outside Canada. This element is proven when the substance enters Canada. Crown counsel does not have to prove that Jacinda Hudson actually took delivery of the substance, or actually carried it in. What is essential, however, is that Jacinda Hudson was the person responsible for bringing it into Canada. This is the real issue for you to decide with respect to this charge. [Emphasis added.] [37] Later, the trial judge framed the issue for the jury to decide in this way: There is no dispute that the substance was imported into Canada. The real issue for you to decide is whether Ms. Hudson was the person responsible for bringing the substance into Canada. The Crown relies on the evidence that the package was addressed to Jacinda Hudson at 1 Pennefather Lane, and on the text messages set out above as evidence from which you can infer that Ms. Hudson was the person responsible for bringing the fentanyl into Canada. After reviewing the positions of the parties, the trial judge concluded his instructions on this question: If you are not satisfied beyond a reasonable doubt that Jacinda Hudson imported a substance into Canada, you must find Jacinda Hudson not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that Jacinda Hudson imported a substance into Canada, you must go on to the next question. [Emphasis added.] The Arguments on Appeal [38] The appellant says that the term “import” has its plain meaning of to bring in or cause a controlled substance to be brought into the country. The fault element requires proof that an accused knew or was wilfully blind as to the presence of the controlled substance, albeit not the nature of the controlled substance actually imported. This requirement of knowledge or wilful blindness must precede the entry of the controlled substance for proof of the offence of importing to be established. [39] To establish the actus reus or physical element of importing, the appellant continues, the Crown must prove that the accused did some voluntary act to arrange the shipment or delivery of the controlled substance into Canada. Establishing the point at which the offence is complete is central since this determines whether the evidence establishes importing or some other offence under the Controlled Drugs and Substances Act ( CDSA ) , S.C. 1996, c. 19 . It also satisfies the coincidence principle, the procedural requirement that the offence be committed in Canada, and whether the evidence adduced establishes the physical element or is simply evidence of after-the-fact conduct. [40] The decision in Bell v. R ., [1983] 2 S.C.R. 471, is dispositive of when the offence of importing is complete. Importing is not a continuing offence. Its physical element or actus reus is complete when the controlled substance enters the country. In cases of personal carriage of the contraband, such as Foster , the physical element is complete when the carrier and contraband clears customs. But this case-specific finding cannot apply to controlled deliveries. This is because possession, which occurs in the controlled delivery cases, is not an essential element of the offence of importing. To extend the offence of importing until the controlled substance comes into the possession of the intended recipient is unsupportable in principle. The decisions in Onyedinefu , 2018 ONCA 795, and Buttazzoni , 2019 ONCA 645, were wrong to have done so and should not be followed. [41] The definition of “importing” – in particular, the outer boundary of its physical element – must also respect Parliament’s intention to create separate offences to criminalize post-importing conduct, such as trafficking and possession for the purpose of trafficking. To expand the definition of importing to take in domestic transportation and control of controlled substances overrides Parliament’s intention to distinguish among these offences. By parity of reasoning, disparity in the sentencing ranges applicable to importing and the other offences supports a similar conclusion. [42] The respondent says that no matter when the offence is considered complete, when the fentanyl arrived in British Columbia or when the intended recipient took possession of the package in Ontario, the appellant was guilty and properly convicted of importing. The charge to the jury made it clear that to find the appellant guilty of importing, the jury had to find that the appellant had knowledge of the importing and was responsible for bringing or causing the fentanyl to be brought into Canada. The jury found the appellant guilty on the basis of these instructions. In other words, the jury was satisfied that the appellant was a principal in the offence of importing. [43] The trial judge, the respondent urges, correctly outlined the elements of the offence of importing. To find the appellant guilty, the trial judge said, the jury had to be satisfied beyond a reasonable doubt that the appellant was “responsible” for the importing. When combined with the precise language of the Bell majority – “to bring [a controlled substance] into the country”, or “cause someone else to bring it in” from outside Canada, this combination provided a proper basis to ground a conviction. No further, or more specific instruction was sought or necessary. [44] The respondent points out that the failure of the trial judge to specifically instruct the jury about when the physical element or actus reus of importing was complete – an instruction not sought at trial – is of no real moment. The case was left to the jury on the basis that the appellant was responsible for bringing in the fentanyl or causing it to be brought into Canada. Evidence of the appellant’s subsequent conduct afforded cogent evidence of her earlier involvement in the importation. There was no misdirection or non-direction amounting to misdirection in the final instructions to the jury. The Governing Principles [45] The principles that inform our decision on this ground of appeal have been examined at length in our reasons in the companion case of Okojie released concurrently. It is unnecessary to repeat that analysis here. For our purposes, it is enough to extract some basic principles against which to measure the adequacy of the instructions given at trial. [46] Like all true crimes, importing consists of a physical element and a fault element. Each element must be established by relevant, material and admissible evidence beyond a reasonable doubt. At some point, the two elements must coincide: Okojie , at para. 95. [47] The physical element in importing requires proof that an accused imported a substance. That substance must be included in the same Schedule under the CDSA as the substance alleged in the indictment. To import a substance means to bring a substance, or to cause a substance to be brought into Canada from abroad. This does not require that the accused actually carried the substance into Canada. Nor does it require that the accused be present when and where the substance enters Canada. The offence may be committed in part at more than one place in Canada. But in each case, there must be a nexus between the accused and the importation: Okojie , at paras. 64, 96, 99. [48] The physical element of importing is complete when the controlled substance “enters the country”. When a controlled substance “enters the country” depends, to some extent at least, on the manner in which the importing occurs. When the physical element of importing concludes is of importance in determining the criminal liability of a person charged with importing. This is so because if an accused’s only participation is after the offence has been completed, their liability for importing cannot be established. However, evidence of after-the-fact conduct, of things said and done, may help to establish antecedent participation in importing. The physical element ends when the controlled substance from abroad is no longer in the control of the appropriate authorities: Okojie , at paras. 113-14. The Principles Applied [49] Although a fuller instruction could have been provided than what was given, I am not persuaded that what was said reflects prejudicial error. I reach this conclusion for essentially four reasons. [50] This case involved a controlled delivery. The contraband was shipped by mail. It came into Canada from China. The package was opened, its contents inspected, and found to contain fentanyl, a highly toxic controlled substance. The fentanyl was removed, the package forwarded, always in the control of the authorities, until it was delivered to the appellant’s home. The appellant was the addressee. [51] At trial there was evidence of communications to and responses by the appellant alerting her to an impending delivery. The jury was entitled to reject, perhaps even to find fabricated, the explanation advanced at trial by the appellant and Munro about the nature of the delivery. The jury could conclude from the appellant’s conduct between the failed first delivery and the second completed delivery that the urgency revealed had nothing to do with a parcel containing children’s books and clothing. [52] Second, the position of the appellant at trial. The position advanced by the appellant at trial was an outright denial of any involvement with the package that had contained the fentanyl. The only delivery with which she was involved had to do with a package said to originate in Nova Scotia. A package of children’s books and clothing. She did not dispute that the delivered package from China was imported. Rather, she simply denied any involvement in its importation. In these circumstances, it is difficult to see how an instruction that the physical element of importing ended on delivery would have benefited the appellant in light of the defence she advanced at trial. [53] Third, the terms of the instruction provided. [54] The instructions given on the physical element of importing are consistent with the meaning assigned to “import” by the majority in Bell . The trial judge instructed the jury that to find this element established, they had to be satisfied that the appellant was responsible for bringing fentanyl into Canada. The use of the term “responsible” adequately conveyed to the jury that, to find this element proven, the jury had to be satisfied beyond a reasonable doubt that the appellant was the person or at least one of the persons who caused the importing to take place. This is the functional equivalent of the Bell majority’s “cause to be brought into” the country. [55] Fourth, the position of counsel at trial. [56] The trial judge provided counsel with copies of his proposed charge well in advance of its delivery. Counsel had ample opportunity to make submissions about errors and omissions, and to suggest any additional instructions that should be included. Defence counsel took no objection to the instructions now said to have been deficient. Nor did counsel suggest that anything be added to better explain to the jury this essential element of importing. Ground #2: Unreasonable Verdict on Importing [57] This is the first of two grounds of appeal that allege the jury reached an unreasonable verdict. In large measure, my conclusion on the first ground of appeal precludes success on this ground. This is because the complaint about unreasonableness is dependent on a submission concerning when importing is complete and that submission was rejected in not giving effect to the first ground of appeal. [58] It is unnecessary to repeat the evidentiary background rehearsed earlier. A convenient point of departure is the arguments advanced in this court. The Arguments on Appeal [59] The appellant reminds us that a verdict is unreasonable if it is one that a properly instructed jury, acting judicially, could not have reached. Since the evidence in this case is entirely circumstantial, to find the appellant guilty of importing, the jury must have concluded that the appellant’s guilt was the only reasonable inference available from the evidence taken as a whole. [60] In this case, the appellant argues, the offence of importing was complete when the package entered British Columbia. This was the date the offence was alleged to have occurred in the indictment. The trial judge failed to properly define when the offence was complete. The principal evidence against the appellant, apart from being a person to whom the package was addressed, was text messages and other conduct that took place over two weeks later. In these circumstances, without a proper direction about when the offence was complete, the jury could not properly have concluded that the appellant’s guilt was the only reasonable inference available on the evidence considered as a whole. Another reasonable inference was available on the evidence – that the appellant’s only involvement with the package occurred after the importing was over and done with. [61] The respondent acknowledges the standard of review applicable generally to claims of unreasonable verdict and that governing unreasonableness claims when the case for the Crown consists entirely of circumstantial evidence. In deciding whether a verdict is unreasonable, we are entitled to conduct only a limited weighing of the evidence as a whole within the limits of appellate disadvantage. Provided the evidence, taken as a whole, is reasonably capable of supporting the verdict, the verdict must stand. [62] In this case, the cumulative effect of the evidence supports the verdict of the jury. Several items of evidence, taken together, support the inference that the appellant was awaiting a package from overseas and that she had agreed to receive it before it was mailed to Canada. Among the items of evidence: · the appellant was the addressee at her current home address; · the sender was in China; · the appellant directed Roman to accept the package on her behalf; · after the failed delivery, the appellant returned home, checked the mailbox and house and left quickly; · at the same time, the appellant constantly texted Roman about the package from Canada Post; · after the failed delivery, the appellant texted Roman “That was an important package FK man”; · the appellant was relieved when the package was delivered; · the appellant lied to the police that she was not expecting a package; and · the fentanyl in the package as shipped was valued at about $320,000. The Governing Principles [63] The controlling principles spark no controversy. [64] First, unreasonable verdict. [65] A verdict is unreasonable if it is one that a properly instructed jury, acting judicially, could not reasonably have rendered: R. v. W.H. , 2013 SCC 22 , [2013] 2 S.C.R. 180, at para. 26; R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. We must conduct our review of a jury verdict within two well-established boundaries. We must accord due weight to the advantage of the jury as the trier of fact, present throughout the trial, ear and eyewitness to the evidence as it unspooled. This is an advantage denied us at one remove from the trial process. We must be resolute in our resistance to re-try the case and to label a verdict “unreasonable” simply because we have a reasonable doubt based on a lifeless printed record. But our review is not limited to an assessment of the sufficiency of the evidence adduced at trial to determine whether there was some evidence which, if believed by the jury, supports the conviction. We must review, analyze, and, within the limits of appellate disadvantage, weigh the evidence, and consider, through the lens of judicial experience, whether judicial fact-finding precludes the jury’s conclusion: W.H. , at paras. 27-28. [66] Where the case for the Crown depends wholly or substantially on circumstantial evidence and a conviction is impeached as unreasonable on appeal, the issue for the appellate court is whether the trier of fact, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. [67] Second, proof by circumstantial evidence. [68] Proof of an issue of fact, such as importing a controlled substance, may be established by direct evidence, by circumstantial evidence, by an admission of fact, or by some combination of these various means of proof. Where circumstantial evidence is involved, the inference-drawing process may involve any or all of three methods of reasoning: · prospectant (for example, motive); · concomitant (for example, skill, means, opportunity); · retrospectant (for example, after-the-fact conduct). The fundamental inquiry is one of relevance, whether the claimed conclusion is a probable inference from the offered fact: John Henry Wigmore, revised by Peter Tillers, Wigmore on Evidence , vol. 1A (Toronto: Little, Brown and Company, 1983) at § 43, pp. 1138-42. [69] The inference involved when evidence of after-the-fact conduct is received looks backward from the evidentiary fact offered to the act alleged. Evidence of after-the-fact conduct refers to evidence of things done and said by an accused after the offence charged was alleged to have been committed: R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106, per Martin J. (dissenting, but not on this point). Although proof of an accused’s involvement in collection of imported items, such as controlled substances, does not prove, on its own, that the accused is the importer, that activity may be circumstantial evidence tending to prove that the accused was in fact the importer: R. v. Toe , [2010] SASC 39, 238 FLR 137 (South Australia S.C.), at para. 76. [70] The assessment of circumstantial evidence, whether by triers of fact at first instance or by an appellate court on a review for unreasonableness, does not involve an examination of individual items of circumstantial evidence in isolation and separately from the rest, adjudging them against the criminal standard of proof and rejecting them if they are found wanting, as surely they will be. No individual item of circumstantial evidence is ever likely to do so. They are the building blocks of proof, not the final product. It is commonplace that individual items of evidence adduced by the Crown examined separately and in isolation, have not a very strong probative value. But all the pieces have to be considered. Each one in relation to the whole. And it is the whole of them, taken together, whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76. The Principles Applied [71] I would not give effect to this ground of appeal. [72] At the outset, the question to be answered is whether the jury, acting judicially, could reasonably have been satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence. Further, we must be mindful that the circumstantial evidence does not have to totally exclude other conceivable inferences and that a verdict is not unreasonable because the alternatives do not raise a doubt in the jury’s mind. It remains fundamentally for the trier of fact to decide whether any proposed way of looking at the case is reasonable enough to raise a doubt: Villaroman , at paras. 55-56. [73] An integral component of the appellant’s assertion of unreasonableness is her complaint of inadequacy in the trial judge’s instruction about when the physical element of importing was complete. As explained earlier, that argument fails in this case. The instructions given and the verdict rendered make it clear that the jury was satisfied that the appellant was responsible for importing the fentanyl. [74] The appellant was the consignee of a package mailed from China. The package contained fentanyl. Its value was $320,000. The appellant exchanged text messages to be on the lookout for this package. She took steps to ensure that the package was accepted when delivered. It beggars belief that anyone would ship $320,000 worth of goods to an address thousands of miles away to anyone who was not a participant in the importation. Ground #3: Unreasonable Verdict: Possession of Fentanyl for the Purpose of Trafficking [75] The appellant was also found guilty and convicted of possession of fentanyl for the purpose of trafficking on or about November 4, 2016. At no time did she have actual physical possession of the fentanyl. By November 4, 2016 when the package was delivered, the fentanyl had been removed. She contends that her conviction was unreasonable. The focus of her submissions is twofold. First, the failure of the trial judge to instruct the jury on the included offence of attempting to possess fentanyl for the purpose of trafficking. Second, the absence of evidence of the appellant’s possession of the actual drug. [76] The background necessary to understand this ground of appeal may be briefly stated. The Essential Background [77] The package containing the fentanyl sent from China was received at the International Mail Centre in Richmond, British Columbia. There, the package was opened, its contents examined. Testing confirmed that a substance found in the package was fentanyl. Because of its toxic nature, the fentanyl was removed from the package. Not even a control sample remained. The package was put back together and re-entered the mail system for a controlled delivery to the appellant in accordance with the terms of a general warrant. [78] The controlled delivery took place. The appellant directed her ex-boyfriend to take delivery of the package. He did so. When police arrived to execute a search of the appellant’s home, they found the package, unopened on a table in the front hall. The appellant arrived home shortly thereafter. It is common ground that there was no fentanyl in the package. The Charge to the Jury [79] At the close of the case for the Crown, the appellant did not seek a directed verdict of acquittal. She did not seek a full acquittal to remove possession for the purpose of trafficking from consideration by the jury, or a partial directed verdict, removing the full offence, but leaving an attempt to possess fentanyl for the jury’s assessment. [80] The trial judge provided copies of his proposed charge to counsel in advance of its delivery and invited submissions about any errors or omissions. Trial counsel did not seek an instruction on attempted possession for the purpose of trafficking or object to its absence. [81] In his charge to the jury, the trial judge explained the elements of both actual and constructive possession. He adverted to the fact that the police had removed the fentanyl from the package before it was received by the appellant. The trial judge explained that “a person who knowingly has a substance in the actual possession or custody of somebody else, or in some place for the use or benefit of him or herself or somebody else, has that substance in his or her possession provided she has some element of control over that substance”. He went on to instruct the jury that “if the evidence satisfies you beyond a reasonable doubt that Ms. Hudson believed the package contained fentanyl, and was aware Mr. Roman had accepted that package on her behalf, and that Mr. Roman placed the package in her residence for her, this will meet the legal definition of possession. You can find that Ms. Hudson was in possession of the fentanyl”. He told the jury that if they were not satisfied that the Crown had proven all the essential elements of the offence beyond a reasonable doubt they should find the appellant not guilty of possession of fentanyl for the purpose of trafficking. The Arguments on Appeal [82] The appellant says that the trial judge erred in law in failing to instruct the jury on the included offence of attempt to possess fentanyl for the purpose of trafficking. There was an air of reality to the claim that what occurred here amounted to no more than an attempt. For the completed offence, an accused must have control over the controlled substance itself, coupled with knowledge of the controlled substance and an intention to traffic in it. Here, the appellant had no control over the actual drug which had been removed in its entirety from the shipped package. [83] In this case, the appellant contends, the charge to the jury ignored an essential element of the offence – possession of the controlled substance alleged. The appellant had no control over the fentanyl, even if she could be found to have possession of the package in which it had been contained. The failure to instruct the jury about the absence of evidence of this essential element of the offence – whether the appellant had any control over the fentanyl – should require entry of an acquittal on the count of possession of fentanyl for the purpose of trafficking. At worst, a new trial should be ordered on attempt to possess fentanyl for the purpose of trafficking. [84] The respondent urges rejection of this ground of appeal, an argument advanced for the first time in this court. That police removed the fentanyl, a highly toxic controlled substance, from the package prior to completion of delivery of the package does not preclude the appellant’s conviction of the full offence of possession for the purpose of trafficking. [85] According to the respondent, the appellant was in constructive possession of the fentanyl when the controlled substance was in the actual possession of the police. The possession component of the offence of possession for the purpose of trafficking may be established on any basis authorized by s. 4(3) of the Criminal Code , R.S.C. 1985, c. C-46. Possession is not restricted to actual physical possession but includes constructive and joint possession. [86] The respondent says that when the fentanyl was mailed to the appellant’s home address from China, the controlled substance entered the actual possession or custody of the postal service for delivery purposes. The postal service maintained custody of the package and its contents for the exclusive benefit of the appellant as its addressee. The obligation and assurance of the postal service that it would deliver the package and its contents to the appellant at her address and to no one else established a sufficient level of control to establish her liability for possession. Actual delivery of the contents was not required. [87] This case involves a highly toxic controlled substance. Its removal, to avoid serious risk of harm or even death to any would-be recipient, should not shield the persons responsible for its shipment from criminal liability. At worst, the court should substitute a conviction for an attempt to possess fentanyl for the purpose of trafficking. The appellant agreed to receive the package, aware of and with the intention to possess its contents, and knowing that the purpose of its possession would be to traffic in those contents. The appellant’s liability crystallized once the package was mailed, or at the very least, when she returned home to recoup the package her ex-boyfriend had accepted on her behalf. The failure of the trial judge to instruct on the inchoate offence of attempt was a harmless error in the circumstances. The Governing Principles [88] Section 4(3) of the Criminal Code defines what constitutes possession for the purposes of the Criminal Code . Section 2(1) of the CDSA exhaustively defines “possession” for CDSA purposes as meaning “possession within the meaning of subsection 4(3) of the Criminal Code ”. And in s. 34(2) of the Interpretation Act , R.S.C. 1985, c. I-2, makes all Criminal Code provisions relating to indictable offences applicable to indictable offences created by other federal enactments, except to the extent that the enactment otherwise provides. [89] Under s. 4(3) of the Criminal Code , thus for the purposes of s. 5(2) of the CDSA , possession includes personal possession, constructive possession, and joint possession. Thus, possession need not be personal or actual, but may be constructive, as for example under s. 4(3)(a)(ii): R. v. Morelli , 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15. Knowledge and control are essential elements common to both personal and constructive possession. [90] Constructive possession may be established where an accused does not have physical custody of the subject-matter in question, provided they have the subject-matter “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”. In other words, constructive possession is complete when an accused: i. has knowledge of the character of the object; ii. knowingly puts or keeps the object in a particular place, irrespective of whether the place belongs to the accused; and iii. intends the object be for anyone’s benefit, including that of the accused. See, Morelli , at para. 17. [91] Some authorities have considered the impact of police intervention in shipments of contraband before those shipments reach the consignee. In Bell , where a small amount of contraband was left in the shipment, all members of the court considered that the police intervention was irrelevant to the appellant’s liability for importing: Bell , at pp. 482, 491. [92] In R. v. Bremner , 2007 NSCA 114, 229 C.C.C (3d) 513, the appellant appealed his conviction of possession of crack cocaine for the purpose of trafficking. The offence occurred when Bremner was in prison. The evidence demonstrated that the cocaine was part of a package Bremner had ordered his drug-dealing subordinates to smuggle into the prison where Bremner was housed. The Crown alleged that Bremner had sufficient control over his subordinates that he was in constructive possession of the drugs which were never delivered. The external source of the drugs was a police informer under police control. [93] The Nova Scotia Court of Appeal rejected an argument by Bremner that, since he had no control over the drugs, he could not be in possession of them, thus could not be found guilty of possession of cocaine for the purpose of trafficking. It followed, the appellant argued, that his conviction was unreasonable. [94] The court referred to the concept of joint police-offender control and concluded that a measure of control by one person (the police) does not necessarily exclude the control required to establish possession by another person (Bremner): Bremner , at para. 54, citing R. v. Miller et al (1984), 12 C.C.C. (3d) 54 (B.C.C.A.), at p. 90. See also, R. v. Harrison (1982), 67 C.C.C. (2d) 401 (Alta. C.A.), at p. 417. [95] In R. v. Bonassin , 2008 NLCA 40, 236 C.C.C. (3d) 562, police seized a computer from the office of a courier company under the authority of a search warrant. Concealed in the computer were cocaine and marijuana. Police extracted the drugs, inserted books of similar weight and had the courier company deliver the package to its original destination. Although the appellant was not the addressee, he was working at the delivery address and accepted the package. Shortly after the delivery, the appellant went out of the house. He had the package and a suitcase with him. He then returned to the house where police arrested him. [96] The appellant was charged with possession of cocaine and marijuana for the purpose of trafficking. At trial, the appellant testified that his only purpose for being at the residence was to purchase marijuana. He had no intention of taking the package with him. He was simply moving it out of the doorway so that he could leave the house. The trial judge disbelieved the appellant’s story and convicted him. [97] On appeal, the appellant argued that the trial judge erred in finding guilt established because the package that was actually delivered contained no drugs. The court was satisfied that the evidence disclosed that the appellant and addressee had agreed before the drugs were removed that he would accept the package. Thus, the appellant and addressee had knowledge of the drugs and exercised control over them until they were seized by police. They were in joint possession of the drugs in advance of delivery. Since joint possession was established, the majority considered it unnecessary to determine the effect of police removal of the drugs and delivery of an empty package. [98] A final point concerns the nature of offences of which possession is an essential element. In Bell , McIntyre J. described a continuing offence as an offence in which the conjunction of the actus reus and the mens rea , which makes the offence complete, does not, as well, terminate the offence. The conjunction of the two essential elements for the commission of the offence continues, leaving the accused in a state of criminality while the offence continues. McIntyre J. cited possession of goods knowing them to have been obtained by the commission of theft as an example of a continuing offence: Bell , at p. 488. The Principles Applied [99] As I will explain, I would not give effect to this ground of appeal. I am satisfied that the appellant was in constructive or joint possession of the fentanyl, that her possession was not broken by police removal of the fentanyl, and the purpose of her possession was to traffic the controlled substance. [100] The package containing the fentanyl was sent by mail to the appellant. On the evidence, the appellant was expecting a package containing drugs, and she was the addressee of the package. In these circumstances, the appellant had joint possession of the package and its contents with the postal service before the drugs were removed. The indictment alleged possession for the purpose “on or about November 4, 2016”. The “on or about” language is typical of criminal pleading and sufficiently expansive to include the date on which the package was opened and before its contents were removed: see Bell , at p. 485. [101] However, that the expansive “on or about” language in the count encompasses possession prior to removal of the fentanyl is not the end of the matter. I will explain why. [102] The indictment included three counts: importing, possession for the purpose, and simple possession. Each offence was alleged to have been committed “on or about November 4, 2016”. The controlled delivery occurred on November 4, 2016. At that time there was no fentanyl in the package. [103] In his instructions on importing, the trial judge emphasized that to find the appellant guilty, the jury had to find that she was “responsible” for bringing fentanyl into Canada from abroad. The jury was satisfied that she was responsible for the importation. That finding, in these circumstances, meant that the appellant was in possession of the fentanyl under ss. 4(3)(a)(i)(ii) or s. 4(3)(b) of the Criminal Code . Other evidence was available to establish that the amount imported was for the purpose of trafficking. This was sufficient to establish the appellant’s guilt of possession for the purpose and the impact, if any, of the actual delivery of the package without fentanyl on the appellant’s liability for possession for the purpose would not arise. [104] On the other hand, if the jury were to have had a reasonable doubt that the appellant was “responsible” for the importation of the fentanyl and to have found her not guilty of that offence, then they would have had to consider the impact of the removal of the fentanyl on her liability for possession for the purpose. Absent possession of the fentanyl, the appellant could not be convicted of the full offence of possession for the purpose of trafficking in it. [105] Since there is to be a new trial on the indictment, it will fall to counsel and the trial judge to consider this prospect and determine whether it will be necessary to instruct the jury on the availability of a verdict of attempted possession for the purpose of trafficking on the count charging the completed offence. Ground #4: The Instruction on Circumstantial Evidence [106] The evidence on which the Crown relied to establish the appellant’s guilt was entirely circumstantial. This ground of appeal asserts that the charge to the jury failed to equip the jury with the tools necessary to evaluate this evidence in determining whether, taken as a whole, it satisfied the standard of proof necessary in such cases. [107] The only background necessary to evaluate this claim of error is a brief reference to the charge itself and the process leading up to its final form. The Essential Background [108] The trial judge distributed drafts of his proposed instructions to counsel for review and discussion at pre-charge conferences. The first draft, distributed when Hazare Roman was a co-accused, included a specific instruction about the standard of proof required when the case against an accused rested entirely on circumstantial evidence. The instruction was expressly limited to the case against Hazare Roman. [109] When the second draft was circulated, Hazare Roman was no longer a co-accused. He had changed his plea and played no further part in the trial. The second draft pointed out the difference between direct and circumstantial evidence and provided a typical example explaining the difference between the two types of evidence. The instruction also advised the jury that it should consider both direct and circumstantial evidence in deliberating on its verdict and that the law treated each equally as a means of proof. The instruction about circumstantial evidence which had been included previously in relation to the former co-accused, Hazare Roman, was not included. Nor was any instruction in equivalent terms included about the case against the appellant. [110] The final version of the instructions included a passage describing the difference between direct and circumstantial evidence, illustrated by a commonplace example, and a direction that both kinds of evidence – direct and circumstantial – were treated equally by the law. [111] The charge also included instructions on the presumption of innocence, the burden and standard of proof, and a W.(D.) -compliant direction on the testimony of the appellant. [112] At no time during the pre-charge conference or after the charge had been delivered did defence counsel – or for that matter, Crown counsel – ever seek a circumstantial evidence-specific instruction on the standard of proof. The Arguments on Appeal [113] The appellant says that where the case for the Crown consists entirely or substantially of circumstantial evidence, the standard of proof requires that the jury be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the evidence taken as a whole. The trier of fact must also understand that inferences inconsistent with guilt need not be based on proven facts but can arise from the absence of evidence. [114] In this case, the appellant submits, the trial judge failed to instruct the jury properly about the requirements of the standard of proof necessary in cases consisting entirely of circumstantial evidence. As a result of this omission, the presumption of innocence was undermined and the burden of proof reversed. The judge fell short of what Villaroman requires in two significant respects. First, he failed to tell the jury that inferences inconsistent with guilt need not arise from the evidence but may also emerge from the absence of evidence. Second, he omitted to tell the jury that even if they were satisfied that the Crown had negated the exculpatory explanation advanced by the appellant, they had to consider the whole of the evidence, including the testimony of the defence witnesses, to determine whether the appellant’s guilt had been proven beyond a reasonable doubt. [115] The appellant acknowledges that trial counsel’s failure to object to the omission of these instructions is a relevant factor for us to consider in our assessment of this ground of appeal. However, this failure is not fatal. This is so because a proper instruction on the onus and standard of proof is essential to a fair trial. [116] The respondent contends that no particular form of instruction is required to ensure jurors understand the onus and standard of proof in cases consisting entirely or substantially of circumstantial evidence. The essential requirement is that the jury understand that they must be satisfied beyond a reasonable doubt that guilt is the only reasonable inference that can be drawn from the evidence as a whole. That message was adequately conveyed to the jury in this case. [117] In this case, the respondent points out, the trial judge explained to the jury and illustrated by example the difference between direct and circumstantial evidence. He told them that both types of evidence count in assessing whether guilt has been proven beyond a reasonable doubt. From these instructions, the jury would understand that, since both direct and circumstantial evidence were equals as means of proof, both had to meet the standard of proof beyond a reasonable doubt before a finding of guilt could be made. In addition, the jury were told that a reasonable doubt could arise from the evidence or the absence of evidence. No distinction was drawn between circumstantial and direct evidence in this respect. [118] The appellant testified. She, together with her friend, Louisa Munro, provided an alternative explanation. They said that a different package was being delivered. From Nova Scotia, not from China. The jury rejected that explanation. No other explanation was advanced. None emerged from the evidence. No further instructions were necessary. The Governing Principles [119] An instruction about circumstantial evidence alerts jurors to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence. The danger is the risk that jurors will “fill in the blanks” or “jump to conclusions”. As a result, it is generally helpful that the jury, in a case where proof of one or more essential elements of the offence depends exclusively or largely on circumstantial evidence, be cautioned about too readily drawing inferences of guilt. However, the message may be delivered in different ways. No particular language is required. Instructing the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that the evidence permits is often a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative explanations: Villaroman , at para. 30. [120] In cases such as this, where proof of guilt depends entirely or substantially on circumstantial evidence, a trial judge may assist the jury in understanding the risk of jumping to conclusions from the evidence in different ways. How this end is achieved in any particular case is left largely to the discretion of the presiding judge: Villaroman , at para. 31. There are different ways in which to assist the jury. This includes instructing the jury in the traditional language of reasonable doubt and charging the jury in accordance with that language, then pointing out the contrary inferences advanced by the defence and the necessity of acquittal if any of the contrary inferences leave a reasonable doubt about the accused’s guilt: R. v. Fleet (1997), 36 O.R. (3d) 542 (C.A.), at para. 20; R. v. Griffin , 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; Villaroman , at paras. 18, 20. The Principles Applied [121] In my respectful view, this ground of appeal cannot prevail despite the absence of an instruction in language typical of most instructions given in this province about the standard of proof required in cases involving circumstantial evidence. [122] To begin, we have long abandoned any legal requirement that a “specific instruction” be given on circumstantial evidence. No particular language is required. To be certain, telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference the evidence permits, as the Villaroman court noted, will often be a succinct and accurate way of helping the jury guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences: Villaroman , at para. 30. But, as Villaroman , and Griffin before it, emphasized, the Hodge ’s Case (1838), 2 Lewin 227, 168 E.R. 1136, formula – the historically provided special instruction on the application of the burden of proof in cases of circumstantial evidence – is not the only way: Villaroman , at para. 31; Griffin , at para. 33. [123] In this case, the trial judge instructed the jury about the differences between direct and circumstantial evidence. He illustrated the difference between the two types of evidence with a commonplace example that 21st-century jurors could not fail to understand. The judge explained that both types of evidence were available for the jury to consider in deciding the case and of equal value in making that decision. The judge instructed the jurors on their task: to decide what conclusions they would reach based upon the evidence, as a whole, both direct and circumstantial. [124] Earlier in his charge, the trial judge instructed the jury on the presumption of innocence and the burden and standard of proof. Among the specific instructions on reasonable doubt, was a direction that a reasonable doubt could arise not only from the evidence, but also from “the absence or lack of evidence”. The trial judge also included a W.(D.) instruction based on the appellant’s testimony that she had nothing to do with the package of fentanyl addressed to her and no knowledge that the package was being shipped to her. He told the jury that if they could not decide whom to believe, they must find the appellant not guilty. [125] In this case, the trial judge charged the jury in accordance with the traditional language of proof beyond a reasonable doubt. He made it clear that it was the evidence as a whole, both direct and circumstantial, that the jury was required to consider to decide whether the standard of proof beyond a reasonable doubt had been met. The trial judge also pointed out the alternative inference advanced by the defence on the basis of the appellant’s testimony – that she was expecting another package that had nothing to do with fentanyl. The charge contains repeated reference to the obligation of the Crown to prove each essential element of the offence beyond a reasonable doubt before the jury could find the appellant guilty of any offence. [126] The procedure followed by the trial judge in settling upon his final instructions provided counsel with ample opportunity to seek instructions of the nature now said to have been required. No such request was ever made. Not before the charge. And not after. This, despite inclusion of such an instruction in relation to the former co-accused. [127] I do not gainsay the value of what has become the traditional instruction which Villaroman characterizes as “helpful”. In cases such as this, where the case for the Crown, as a whole or on a particular essential element, consists exclusively or substantially of circumstantial evidence, the traditional instruction should be given. But, as the authorities have repeatedly said, no specific language is required. In this case, taking the charge as a whole, I am satisfied that the jury was properly instructed. Ground #5: Instructions on After-the-Fact Conduct [128] The appellant next argues that the trial judge erred in his instructions on evidence of after-the-fact conduct. The error is said to arise because the trial judge mischaracterized evidence of after-the-fact conduct as evidence of the offence itself. This, coupled with a failure to properly define when the offence of importing was complete and to define the case as entirely circumstantial, resulted in a failure to properly instruct the jury on evidence of after-the-fact conduct. The Background [129] The evidence which is said to have attracted an instruction that was not given has already been summarized and need not be repeated. It consists of things done and said by the appellant on being advised of the attempted delivery and the later completed delivery. The Charge to the Jury [130] No specific instruction was sought or given on evidence of after-the-fact conduct. The Arguments on Appeal [131] The appellant argues that the failure of the trial judge to properly instruct the jury on evidence of after-the-fact conduct is the result of two other errors in the charge. The failure to properly define when the offence of importing was complete. And the failure to characterize or define the case as one consisting entirely of circumstantial evidence. In combination, these errors led the trial judge to characterize what was evidence of after-the-fact conduct as evidence of the offence itself. [132] Where the case for the Crown consists of or includes evidence of after-the-fact conduct, it is incumbent on the trial judge to explain to the jury that this evidence should be approached cautiously. The jury should be instructed to determine first whether the accused engaged in the after-the-fact conduct, then whether the conduct related to the offence charged. And finally, to consider the conduct, together with all the other evidence, before deciding whether the accused’s guilt has been proven beyond a reasonable doubt. [133] In this case, the trial judge erred in failing to identify this evidence as evidence of after-the-fact conduct and instruct the jury in such a way as to protect against the dangers that they would jump too quickly from this conduct to guilt. This omission resulted in a further reversal of the burden of proof. [134] The respondent disputes the characterization of this evidence as evidence of after-the-fact conduct. Regardless of when the importing offence was complete, evidence of the text messages and related conduct was circumstantial evidence of the appellant’s involvement in the importing offence. Nor was it evidence of after-the-fact conduct in relation to the count charging possession of fentanyl for the purpose of trafficking. It afforded evidence of the appellant’s constructive possession of the package. [135] Even accepting the appellant’s characterization of the evidence as evidence of after-the-fact conduct, the respondent says, does not command a special caution. Evidence of after-the-fact conduct is not some special category of evidence. It is not subject to a specific instruction or caution. It is circumstantial evidence that invokes a particular chain of reasoning. No more. No less. No special instruction was necessary. None given. No harm. No foul. The Governing Principles [136] Evidence of after-the-fact conduct encompasses evidence of what an accused said and did after the offence with which the accused is charged is alleged to have been committed. Its boundaries are co-extensive with the limits of human experience. It is not offence-specific, but rather is non-discriminatory in relation to offences and legal settings. Its proper legal treatment is highly context and fact-specific: Calnen , at para. 106, per Martin J. (dissenting, but not on this point). [137] Evidence of after-the-fact conduct is not some special category of evidence. It is circumstantial evidence. Nothing more. Nothing less. Granted, it invokes a chain of reasoning different from other circumstantial evidence – retrospectant, rather than prospectant or concomitant. But that it does so does not alter its fundamental nature. And like other items of evidence received in a criminal trial, evidence of after-the-fact conduct is received if it is relevant, material, admissible under the applicable rules of evidence, and not excluded because its prejudicial effect exceeds its probative value: Calnen , at para. 107, per Martin J. (dissenting, but not on this point). [138] As with other forms of circumstantial evidence, evidence of after-the-fact conduct allows the trier of fact to draw inferences grounded in an accused’s words and conduct. There is nothing new or unique about this. To draw inferences, the trier of fact invokes logic, common sense, and human experience. As with all circumstantial evidence, evidence of after-the-fact conduct sponsors a range of inferences each of which must be reasonable according to the measuring stick of human experience. The inferences available depend on the nature of the conduct, the inference sought to be drawn from it, the positions of the parties, and the totality of the evidence. Evidence of after-the-fact conduct is not nullified simply because it may generate a range of inferences. For the most part, it is for the trier of fact to choose among those reasonable inferences which inference will be drawn: Calnen , at para. 112, per Martin J. (dissenting, but not on this point). [139] Evidence of after-the-fact conduct may give rise to imprecise reasoning. It may encourage triers of fact to jump to questionable conclusions. It may seem more probative than it is. And so it is that judges should instruct juries to take into account any alternative explanations advanced for the accused’s behaviour. And in some cases, further specific limiting instructions or cautions may be necessary to counteract any specific reasoning risks associated with the particular evidence: Calnen , at para. 118, per Martin J. (dissenting, but not on this point). [140] As a general rule, evidence of after-the-fact conduct does not require any specific caution about its use in proof of guilt: R. v. White , 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 21-22; R. v. Adamson , 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 58. Evidence of after-the-fact words and conduct often comprises several individual incidents, whether of things said, done, or both. The evidence should be considered as a whole, not in a piecemeal fashion, and together with the rest of the evidence received at trial: R. v. McLellan , 2018 ONCA 510, 362 C.C.C. (3d) 183, at para. 47. The Principles Applied [141] For several reasons I am not persuaded that this ground of appeal is well founded. [142] To begin, the evidence to which the appellant points, of text messages and conduct prior to delivery of the package, is not evidence of after-the-fact conduct. The offence of importing was not complete until the actual delivery to Hazare Roman of the package, thus removing the package but not the fentanyl from the control of the authorities. Thus viewed, this evidence cannot reasonably be characterized as evidence of after-the-fact conduct. It is simply circumstantial evidence of things done and said which is relevant to a material issue at trial – whether the appellant caused the fentanyl to be brought into Canada. As such, no special caution was required. It was part of the evidence the jury was entitled to consider in deciding whether the evidence as a whole satisfied the standard of proof required. [143] Second, inherent in this submission of error is that evidence of after-the-fact conduct is some special category of evidence that requires some special caution to be included in jury instructions. This is not consistent with the prevailing authorities. Evidence of after-the-fact conduct is not some special category or species of evidence. It is circumstantial evidence. It does not command any particular form of instruction apart from a direction that jurors should take into account any alternative explanations for the accused’s behaviour. That was done here. [144] Third, while not dispositive, trial counsel did not seek any specific instruction about this evidence or any particular direction about circumstantial evidence and the standard of proof. This, despite ample opportunity to do so at various pre-charge conferences when proposed final instructions were being discussed. [145] Fourth, in this case there was no dispute about the behaviour in question. The texts were sent and received. The conduct between the failed and successful delivery well established. The only alternative explanation advanced – that the behaviour related to an entirely different package the appellant expected to receive and not a drug delivery – was put to the jury and plainly rejected by their verdict. [146] Finally, there was nothing in the nature of this evidence which required any specific caution, as for example may be necessary where the evidence consists of an accused’s demeanour, lies, refusal to participate in an investigation or extrinsic misconduct. Ground 6: Adverse Inference from Order of Defence Witnesses [147] This ground of appeal arises out of a submission made by the trial Crown in his closing address to the jury and the trial judge’s response in his charge. The subject-matter is the order in which the defence witnesses testified at trial. To be more specific, the fact that the appellant testified as the second, rather than the first, defence witness. The Background [148] Prior to the closing addresses, the trial Crown indicated in the absence of the jury that he proposed to invite the jury in his closing address to draw an adverse inference against the appellant because she testified after Louisa Munro had testified. Defence counsel objected. The trial judge decided that the Crown was entitled to advance this argument. [149] Since the defence called evidence, defence counsel addressed the jury first. In anticipation of what the Crown would later say, defence counsel explained in his closing address that counsel decided which witnesses to call and the order in which they would testify. He added that various reasons influenced the order in which witnesses testified, including the availability of the witness, and in some cases, the availability of the witness’ counsel. [150] In his closing address, Crown counsel (not counsel on appeal) told the jury that there was a convention that an accused who testifies in their own defence testifies first before any other defence witnesses give their evidence. The Crown explained that an accused had the right to be present at their trial. However, the fact that an accused heard the evidence of other witnesses, in this case including Munro, was a factor that should affect the weight the jury should assign to her evidence. The Crown submitted that the appellant was simply trying to parrot in her testimony what Munro had said in her evidence. The Jury Instructions [151] In his charge to the jury, the trial judge said nothing about Crown counsel’s invitation to the jury to draw an adverse inference against the appellant from having testified second after having heard the evidence all other witnesses including Munro. The judge did tell the jury that there was no evidence why Munro brought a lawyer to court with her when she testified. [152] The trial judge also instructed the jury that the decision to call the appellant to testify last was a decision for counsel to make. There could be many reasons why counsel made that decision to call Munro first, none of which emerged from the evidence at trial. The jury were told to ignore the “hypothetical reasons” advanced by defence counsel in his closing address. The Arguments on Appeal [153] The appellant begins with the uncontroversial. As the accused in a criminal trial, she was statutorily required and constitutionally entitled to be present at her trial. To see the witnesses testify. And to hear their evidence. It is legally wrong for a trial judge sitting as a trier of fact, to reject the testimony of an accused on the ground that it appeared to be tailored to testimony heard in court or structured to meet the case for the Crown. Equally inappropriate is a suggestion that an adverse inference can be drawn from the failure of an accused to testify before other defence witnesses. [154] It is well settled, the appellant says, that an accused’s choice and constitutional right to testify after hearing the evidence marshalled against them cannot be turned into an evidentiary trap, a basis upon which to reject their evidence or a makeweight to shore up the case for the Crown. What happened here, through the comments of the trial Crown and the absence of corrective direction by the trial judge, was that the jury were invited to be suspicious of the appellant’s testimony because of the place in the witness lineup in which she testified. What was needed, but lacking, was a clear direction that no adverse inference could be drawn from the order in which the appellant testified. [155] The respondent concedes that the trial judge erred in permitting the trial Crown to invite the jury to consider the timing of the appellant’s testimony in assessing her credibility. There should have been no mention of a “convention” that an accused testifies before other defence witnesses. It is inappropriate for either the Crown or the trial judge to suggest that the trier of fact draw an adverse credibility inference based on the order in which the accused testifies. [156] However, the respondent continues, an error such as this does not automatically lead to the conclusion that the trial was unfair. In this case, the comment of the trial Crown was made in the context of a submission that the appellant and Munro fabricated their evidence about a different expected package with benign contents. This was a permissible line of argument on the evidence adduced at trial. Trial fairness was not compromised. The Governing Principles [157] The governing principles are well known. [158] First, the order of witnesses. [159] A trial judge has no authority to direct an accused to call witnesses in any particular order or to give evidence before any other witnesses: R. v. Sabir , 2018 ONCA 912, O.R. (3d) 465, at para. 39. The order or sequence in which defence witnesses testify is for counsel or the accused to determine: R. v. Smuk (1971), 3 C.C.C. (2d) 457 (B.C.C.A), at p. 462. [160] Second, the evidentiary significance of an accused’s right to be present at trial and to determine the sequence of defence testimony. A person accused of a crime is statutorily required and constitutionally entitled to be present at their trial: R. v. G.V. , 2020 ONCA 291, 392 C.C.C. (3d) 14, at para. 24, citing R. v. Laws (1998), 128 C.C.C. (3d) 516 (Ont. C.A.), at para. 79; Criminal Code , s. 650(1). And at their trial, an accused is entitled to make full answer and defence: G.V. , at para. 24. [161] To give proper effect to this obligation and their entitlements, additionally an accused’s right to a trial that is at once apparently and actually fair, it is legally wrong for the Crown or the trial judge to invite the jury to impugn or discount the credibility of the accused on the basis that they have tailored their evidence to the testimony heard in the courtroom: G.V. , at para. 25. Despite the logic in the suggestion that, as a person who gets full advance notice of the case for the Crown and testifies last, an accused is in a position to tailor their evidence to fit the case presented. However, the logic notwithstanding, no such inference can be invited or drawn without turning fundamental constitutional rights into a trap and exacting an evidentiary price for their exercise: G.V. , at para. 26, citing R. v. White (1999), 42 O.R. (3d) 760 (C.A.), at para. 20. The Principles Applied [162] As I will explain, I would accede to this ground of appeal. [163] The respondent acknowledges that the trial judge erred in permitting the trial Crown in his closing address to invite the jury to consider, in assessing the appellant’s credibility, that she testified last as a witness at trial. But the respondent says this error and the substance of the Crown’s closing did not render the trial unfair. I reach a different conclusion about the effect of the error on the fairness of the trial. [164] In his closing address, the trial Crown told the jury that it was the convention in criminal trials that the accused testifies first before other defence witnesses. This is to ensure that the accused’s evidence is not tainted by hearing other defence witnesses before they (the accused) testify. The fact that, unlike other witnesses, the accused has the right to be present for the whole of their trial is another reason for the convention. The appellant heard Munro’s evidence. She knew what she had to say. This ought to affect the weight the jury should assign to the appellant’s evidence. The jury could not be sure that the appellant had not simply tried to parrot what Munro had said. As a result, the jury should be “extra skeptical when reviewing” the tale of the care package. [165] The trial judge permitted the Crown to advance this argument and Crown counsel did so. Despite objection, the trial judge took no corrective action. [166] It is common ground that Crown counsel’s reference to a convention that an accused testifies as the first defence witness is simply wrong. No such convention exists. The order of defence witnesses is for the defence to determine. It is not subject to bright-line rules. There is no set list. This erroneous statement of the law remained uncorrected. [167] The trial Crown’s closing invited the jury to reject the appellant’s evidence because, as the accused who was present throughout the trial, she was in the unique position of having heard the storyline from Munro. This permitted her to parrot Munro’s version and made her evidence unworthy of belief. [168] The closing address of Crown counsel invited the jury to use the appellant’s statutory obligation to be present at her trial, as well her constitutional entitlement to make full answer and defence, as a basis for skepticism about and rejection of her testimony. This turned the appellant’s statutory obligation and fundamental constitutional rights into a trap and imposed an evidentiary penalty for their exercise. [169] Defence counsel, aware of this aspect of Crown counsel’s closing, attempted to blunt its impact. Required to address the jury before Crown counsel, defence counsel offered some possible explanations about why defence witnesses might testify in a particular order. The trial judge instructed the jury to ignore these explanations. [170] In this case, the errors in Crown counsel’s closing address were not corrected. The jury was never told that there was no legal “convention” about the order of defence witnesses, in particular, that if an accused chose to testify in their own defence, they had to testify first. Further, the jury was never instructed that the fact that the accused was present throughout the trial and heard all the evidence before testifying was not a factor for the jury to consider in assessing the weight to be assigned to her testimony. [171] In combination, these errors compromised the fairness of the appellant’s trial. Ground #7: The Third Party Suspect Issue [172] The final ground of appeal originates in a failed attempt at trial to adduce evidence about a known third party suspect as the person who caused the fentanyl to be mailed into Canada. The trial judge rejected the application after conducting a voir dire at which the alleged third party suspect testified. [173] A brief reference to the application and the trial judge’s ruling will provide the background necessary for an evaluation of this claim of error. The Essential Background [174] Raza Khan is a former boyfriend of the appellant. The lease for the appellant’s residence, where the package in which the fentanyl had been secreted was delivered, was in Raza Khan’s name. Although Khan did not live with the appellant at the relevant time, she paid her rent to him by electronic money transfer. He forwarded the payment to the landlord. The appellant testified she had the only key to the home. She was not asked whether she ever saw Raza Khan or whether he ever came to her home. [175] Raza Khan testified on a voir dire to determine whether the appellant would be permitted to adduce evidence in support of a third party or alternate suspect defence. He acknowledged that: i. he sold cocaine and fentanyl; ii. he had ordered drugs online; iii. the drugs ordered online were shipped or mailed; and iv. he has ordered drugs in the names of other persons, not his own. [176] Raza Khan has a significant criminal record including two convictions in 2009 for possession of Schedule I and II controlled substances for the purpose of trafficking. In each case, he was sentenced to brief terms of imprisonment, one of which took into account more than seven months of pre-trial custody. [177] Raza Khan said that he could not recall whether he had ordered drugs to be delivered to the appellant’s home or whether he had a key to her house. He was not asked whether he had previously ordered drugs in the appellant’s name. The Rulings of the Trial Judge [178] The trial judge gave two brief oral rulings on the alternate or known third party suspect issue. The first was based on the appellant’s testimony, the second after Khan had testified on a voir dire . [179] In his first ruling, the trial judge recognized that the application involved a known third party or alternate suspect whom defence counsel wished to call as a witness. The trial judge underscored the burden on the defence to adduce evidence of a nexus between the third party and the alleged offence. In the absence of any such evidence to support the required nexus, the trial judge considered it necessary to hold a voir dire to hear the evidence of Raza Khan before finally ruling on the application. [180] After receiving the testimony of Raza Khan on the voir dire , the trial judge concluded that there was no air of reality to the third party or alternate suspect defence. In particular, there was no evidence that Khan had ever ordered drugs in the appellant’s name. Although Khan admitted having ordered drugs online, among them cocaine and fentanyl, and having had them mailed or shipped to other houses, he could not recall having ordered a delivery to the appellant’s home. Although there was evidence that Raza Khan had a propensity to commit the offence with which the appellant was charged, the record revealed no nexus between Khan and the offence charged. There was no air of reality to the proposed defence. The application was dismissed. The Arguments on Appeal [181] The appellant accepts that to advance a third party or alternate suspect defence, the evidence relied upon in support must meet the air of reality standard. Appellate review of a decision on the issue applies a standard of correctness. The burden on an accused is evidentiary. What is required as an evidentiary threshold is any evidence on the basis of which a properly instructed jury, acting judicially, could acquit. If this burden is met, the trial judge must also be satisfied that the probative value of the evidence in support of the defence is not substantially outweighed by its prejudicial effect. [182] The appellant also acknowledges that there must be a sufficient connection between the third party or alternate suspect and the alleged offence to furnish the essential air of reality. This may be supplied by evidence that the third party had the opportunity, motive, or propensity to commit the offence. The disposition of a third party to commit the offence is probative and admissible provided there is other evidence connecting the suspect to the offence. Just because a third party does not admit culpability does not mean that there is no air of reality to the defence. Provided the inferences available from the evidence are capable of raising a reasonable doubt about the defence, the defence should be left to the jury. [183] Here, the appellant urges, there was an air of reality to the defence. The trial judge failed to consider the possibility that Raza Khan was lying on the voir dire . The judge also ignored the cumulative effect of several items of evidence. Raza Khan was the leaseholder of the appellant’s residence and collected the rent from her, sometimes at the residence. Raza Khan had lived at the residence with the appellant and may have received two keys. He was a convicted drug dealer who had ordered drugs online in the past and had trafficked in fentanyl. He had previously ordered drugs online in the names of others and only offered a tepid failure to recall when asked about ordering them delivered to the appellant’s home. [184] The respondent says that evidence about a third party or alternate suspect is not prima facie admissible. Here, the proposed third party suspect was Raza Khan. But the only evidence advanced in support was his criminal record, drug trafficking practices, and a limited connection to the appellant’s home. This does not satisfy the air of reality standard. [185] Evidence about an alternate suspect may only be admitted where there is a significant connection between the third party and the offence alleged. Absent this link, evidence about the third party is neither relevant nor material. To connect the alternate suspect to the crime, something more than evidence of bad character or of offence-specific propensity is required. Evidence of motive or opportunity may be sufficient, but speculative evidence will not do. [186] In this case, the respondent concludes, the trial judge applied the proper test. He considered the evidence. He made a finding that was open to him on the evidence. Nothing connected Raza Khan to the package, its order, or its delivery. The trial judge’s ruling was correct in law and fully supported by the evidence. The Governing Principles [187] The principles governing introduction of evidence about a known alternate or third party suspect are not in dispute. The parties divide on the impact of their application in the circumstances of this case. [188] It is open to an accused charged with an offence to adduce evidence that tends to show that another person committed the offence with which the accused is charged. The evidence offered in support may be direct, or circumstantial, or a combination of both: R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), at p. 167, aff’d [1977] 2 S.C.R. 824. The evidence must be relevant and of sufficient probative value to warrant its reception. As a result, courts have been disinclined to admit evidence about alternate or third party suspects unless the suspect is sufficiently connected by other circumstances with the crime charged to give the proposed evidence some probative value: McMillan , at p. 757; R. v. Grandinetti , 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 46-47. [189] Evidence of the disposition of a known alternate or third party suspect is admissible to establish commission of the offence charged by that person provided that person is connected to the offence by other evidence. Absent such a nexus, the disposition evidence would lack any probative value: McMillan , at p. 758; R. v.  Murphy , 2012 ONCA 573, 292 C.C.C. (3d) 122, at para. 19. [190] To put the third party or alternate suspect issue in play at a criminal trial, the defence must show that there is some basis upon which a reasonable jury properly instructed, could acquit on the basis of the defence. Absent a sufficient connection between the third party and the offence, the defence will lack the required air of reality and fail in limine : Grandinetti , at para. 48. [191] The requirement to show some nexus or connection between the third party and the offence applies whether the proposed evidence is direct or circumstantial or a combination of both. However, where the defence proposes to call direct evidence from another who admits responsibility for the offence, that proposed evidence itself constitutes a sufficient nexus or connection: Murphy , at paras. 24-25. [192] Among the items of evidence that an accused may rely upon in support of an alternate or third party suspect defence is evidence of that person’s disposition or propensity to commit offences of the nature charged. One method of establishing disposition is to adduce evidence of the third party’s criminal record disclosing convictions of cognate offences. A single conviction may suffice: R. v. Arcangioli , [1994] 1 S.C.R. 129, at p. 141. [193] A final point concerns the principles governing the admissibility of defence evidence in a criminal trial. The exclusion of relevant, material, and otherwise admissible defence evidence may only be justified on the ground that the potential prejudice to the trial process of admitting the evidence substantially outweighs its probative value: Murphy , at para. 17, citing, R. v. Seaboyer , [1991] 2 S.C.R. 577, at pp. 611-12. The Principles Applied [194] In my respectful view, the trial judge erred in failing to permit the defence to call Raza Khan as an alternate or third party suspect. Thus, I would give effect to this ground of appeal. [195] This case involves delivery of a package containing fentanyl from China to the appellant at her home in Ajax. The package was mailed, arrived in Canada in British Columbia where the fentanyl was removed and the package forwarded to the addressee. [196] For the proposed evidence to be admitted in this case, it must be relevant and of sufficient probative value to warrant its reception. And there must be a sufficient connection or nexus between the third party and the offence charged. The nexus may be established by direct or circumstantial evidence or combination of both. [197] Raza Khan testified on the voir dire . He did not admit that he had ever ordered drugs to the appellant’s address. He said he could not recall having done so, although he had ordered drugs online before and had them delivered to other addresses. Disbelief of his faulty memory explanation does not equate to an admission that he committed the offence. [198] On the other hand, I am satisfied that there was sufficient circumstantial evidence to put the alternate or third party suspect issue in play. [199] Raza Khan was an admitted and convicted trafficker. He acknowledged ordering drugs online from various sources. The drugs included fentanyl, the same controlled substance at issue here. He had ordered fentanyl online. He ordered that delivery of his online purchase be made to addresses other than his own to recipients other than himself. In other words, he had a disposition to do the very thing the appellant was alleged to have done here. [200] Raza Khan was also connected to the place of delivery and the recipient. He was the lessee of the property. He had lived there for several months with the appellant. He collected the rent money from her. And this is not a case in which, as his previous dealings show, he needed to be at the address at a specific time to order the fentanyl online and have the appellant’s name appear as addressee and the package delivered to her residence. [201] The cumulative effect of this evidence was sufficient to meet the evidentiary threshold to engage the alternate or third party suspect defence. The trial judge erred in ruling otherwise. Disposition [202] The combined effect of the errors I have identified leads me to conclude that the convictions entered at trial cannot stand. I would allow the appeal, set aside the convictions, and order a new trial on both counts of the indictment. Released: November 2, 2021 “D.D." “David Watt J.A.” “I agree. Doherty J.A.” “I agree. K. van Rensburg J.A.” “I agree, M.L. Benotto J.A.” “I agree. I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Okojie, 2021 ONCA 773 DATE: 20211102 DOCKET: C68428 Doherty, Watt, van Rensburg, Benotto and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Justice Okojie Appellant Chris Sewrattan, Ashley Sewrattan and Raj Vijan, for the appellant Sarah Shaikh, Christopher Walsh and Jonathan Geiger, for the respondent Emily Marrocco, for the intervener, Attorney General for Ontario Owen Goddard and Rick Frank, for the intervener, Criminal Lawyers Association Heard: February 23, 2021 by video conference On appeal from the conviction entered by Justice Jennifer Woollcombe of the Superior Court of Justice on December 2, 2019, with reasons reported at 2019 ONSC 6898, and the sentence imposed on January 31, 2020. Watt J.A.: [1] The label on the FedEx package said “Beauty products”. The sender was Lucy Shighara of Malindi, Kenya. The package was addressed to “Abel Morrison” of 10 Haynes Ave., North York. [2] The package was delivered to the appellant. At 10 Haynes Avenue in North York. From a person wearing a FedEx uniform and driving a FedEx truck. [3] The appellant paid the duty owing to the delivery operator. He paid in cash, signed for the package, got a receipt, and drove away. [4] About an hour later, in another town several miles away from where he got the package, the appellant was arrested on four charges having to do with the contents of the package. Heroin. Importing and having possession of heroin for the purpose of trafficking. And conspiracy to commit both offences. [5] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of the counts charging importing and possession for the purpose of trafficking but acquitted of both conspiracy counts. He appeals those convictions and the sentence imposed. [6] The reasons that follow explain why I would dismiss both appeals. The Background [7] The underlying circumstances are largely uncontroversial. The Package [8] The package with which we are concerned was sent by FedEx. Affixed to it was a document that designated the consignor as Lucy Shighara in Malindi, Kenya. The consignee was Abel Morrison of 10 Haynes Avenue in North York. The contents were described as “Beauty products”. The Interception [9] The package arrived at the FedEx consignment hub in Memphis, Tennessee on February 18, 2018. There, it was intercepted by officials at U.S. Customs and inspected. The contents of the package were contained in four smaller boxes: 96 tubes of mascara. Each tube contained heroin. The Transfer [10] Three days later, the package was turned over to the Canadian Border Services Agency (CBSA) in Mississauga, and thereafter to the RCMP who removed all but one gram of the heroin from the tubes and substituted it with regular mascara. The Value of the Heroin [11] The true value of the heroin contained in the package varied according to how it was sold. When sold at the kilogram level, the street value varied from $30,200 to $41,525. At the gram level, the value increased to between $67, 950 and $83,050. The Controlled Delivery [12] Arrangements were made for a controlled delivery to the consignee, or anyone accepting delivery on the consignee’s behalf. [13] Around mid-day on February 23, 2018 an undercover police officer wearing the uniform of a FedEx delivery operator drove a FedEx delivery truck to 10 Haynes Avenue in North York. After parking the vehicle, the officer approached the home and rang the doorbell. No one answered. She rang the doorbell again. And waited. No one answered the door. The Appellant Arrives [14] The undercover officer noticed a vehicle travelling towards the FedEx truck. The vehicle stopped and parked behind the FedEx truck. The appellant was in the front passenger seat of this vehicle. [15] The undercover officer asked the appellant whether he lived at that address. The appellant said “Yes”, got out of the vehicle, and approached the officer. He had crumpled currency in his hand. The undercover officer said “A-bell”, deliberately mispronouncing the name of the consignee. The appellant corrected the mispronunciation, confirmed his identity as “Abel Morrison”, and repeated his name. [16] The officer did not ask the appellant for any identification. The Exchange [17] The undercover officer explained that $38.87 was owing for duty and taxes on the package. She required either exact change or a credit card in payment. The appellant said that he did not have a credit card. He retrieved $40 in cash from his vehicle, gave the money to the officer, and told her to keep the change. [18] The officer gave the appellant a receipt for the package. She explained that her scanner was not working. She gave the appellant a delivery tag and asked him to sign it to confirm receipt of the package. The appellant wrote four illegible letters on the tag. [19] The officer gave the appellant the package. He took it to the vehicle in which he had arrived as a passenger and put it on his lap. The Surveillance and Arrest [20] Surveillance officers followed the vehicle in which the appellant was a passenger. They arrested him and his then girlfriend, who was driving the vehicle, in a parking lot in Newmarket. The Investigation [21] Advised of his right to counsel on arrest, the appellant told investigators that his girlfriend had “nothing to do with this”. In a satchel in the vehicle, police found three chequebooks and a banking client card in different names. They also found a credit card and health card in the appellant’s own name. When processed at the police station, the appellant told the police that he lived at 329 Cook Road in North York. [22] The appellant showed police his cellphone which contained a text message exchange with “Chucks 3”. An incoming text read “Abel Morrison, 10 Haynes Ave”. The appellant had replied “ok”. No evidence was given about the date of this exchange. The Grounds of Appeal [23] The appellant urges two grounds of appeal against conviction. He contends that: i. the offence of importing was complete before his involvement in picking up the package at the North York address; and ii. the convictions of importing and possession for the purpose of trafficking are unreasonable because it was not the only reasonable inference from all the evidence that the appellant knew the package contained a controlled substance. Ground #1: When Importing is Complete [24] This, the principal ground of appeal, is also raised in the appeal in R. v. Jacinda Hudson (C65962). The appeals were heard together by a five-judge panel because the appellants allege that some prior decisions of this court are in conflict with the decision of the Supreme Court of Canada in Bell v. R. , [1983] 2 S.C.R. 471. The reasons in both appeals are being released concurrently. [25] The circumstances of the offences of which the appellant was convicted have already been described. Repetition is unnecessary. Brief reference to the reasons of the trial judge will provide a suitable footing for the discussion that follows. The Reasons of the Trial Judge [26] The first issue the trial judge considered on the importing count was whether the Crown had proven beyond a reasonable doubt that the appellant had any involvement in the act of importing the heroin. She described the positions of the parties in these terms: The Crown says that the importation of the package with the heroin continued until Mr. Okojie took delivery of the package. It is the defence position that in order to establish that the accused imported, the Crown must prove the accused’s involvement in either bringing the controlled substance into Canada or causing it to be brought into Canada. Counsel relies on the Supreme Court of Canada’s decision in R. v. Bell , 1983 CanLII 166 (SCC), 1983, SCJ No. 83. It is the defence position that the Crown has adduced no evidence that the accused had any personal involvement in bringing the package with the heroin into Canada. The defence says that the actus reus , or act of importing, was complete before he had any connection to the package and thus he must be acquitted. [27] The trial judge considered that the importing offence did “not require the accused to have been involved with actually bringing the package into Canada”. This was because that, although the importing offence is complete in law when the contraband enters Canada, the offence is not complete in fact until the contraband reached its intended recipient. Relying on the decisions in R. v. Onyedinefu , 2018 ONCA 795 and R. v. Buttazzoni , 2019 ONCA 645, the trial judge concluded that the importation was completed in fact when the appellant took delivery of the package. The Arguments on Appeal [28] In addition to the parties, we also heard submissions from two interveners, the Attorney General of Ontario (“AGO”) and the Criminal Lawyers’ Association (“CLA”). Neither intervener advanced argument on the disposition of this or the grouped appeal. Each offered assistance on the scope of the importing offence and the precedential value of the decision in R. v. Foster , 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused [2018] S.C.C.A. No. 127, and its progeny. The Position of the Appellant [29] The appellant says that he could not have been found guilty of importing because the offence was complete before he became involved with the package containing the heroin. The decision in Bell governs when the importing offence is complete. Importing is not a continuing offence. The offence is complete at the time the contraband enters Canada. Bell left open the question of when contraband enters Canada. In this province, binding precedent holds that contraband enters Canada when it clears customs. Thus, the appellant should be acquitted of importing. [30] The failure of the court in Bell to explain when contraband enters the country has produced disparate conclusions in appellate courts in Canada. In this court, the decisions in R. v. Tan (1990), 44 O.A.C. 324 (C.A.) and Foster interpret the “enters the country” mandate of Bell as “clears customs”. But the later decisions in Onyedinefu and Buttazzoni have erroneously extended “enters the country” to “transport to the domestic destination or recipient”. This has created confusion and yielded inconsistent results. [31] The appellant assigns the blame for this ball of confusion to Foster which got the result right, but the reasoning wrong. The result is correct because it is consistent with Tan in its statement that contraband enters the country when it clears customs. But the reasoning in Foster is incorrect, premised on three errors: i. the disposition in Bell – ordering a new trial – does not indicate that the importation was completed in the trial venue, Mirabel, Québec; ii. a non-continuing offence , such as importing, is not distinguishable as complete in law and fact; and iii. this court cannot anticipatorily overrule Bell . [32] The disposition in Bell , the appellant urges, was controlled by the evidence found in Bell’s Québec home. This evidence was capable of supporting an inference that Bell was involved in causing the contraband to be brought into Canada, thus making him a party to the importing. The error in Foster was in concluding that the disposition in Bell meant that the Supreme Court majority concluded that the importing occurred or ended at Mirabel. Extending the actus reus of importing beyond customs clearance violates the binding precedent of Tan and invites courts to extend the endpoint in cases involving controlled delivery. [33] The second flaw in this court’s reasoning in Foster is that it distinguishes completion of the offence in law, on the one hand, and completion of the offence in fact, on the other. This is a valid distinction in continuing offences. But, as Bell teaches, importing is not a continuing offence. Foster , the appellant argues, was at once overambitious and wrong to apply this distinction between completion in law and in fact – unique to continuing offences – to the non-continuing offence of importing. The same result could have been achieved without error simply by following the binding precedent of Tan . [34] In addition, the appellant continues, Foster was wrong because it appears to have anticipatorily overruled Bell . Vertical precedent demanded adherence to Bell . Even the Supreme Court would be unable to overrule the horizontal precedent of Bell . We should reconsider Foster and its progeny because the reasoning in Foster is “unlawful, running contrary to Bell’ s vertical precedent; illogical, because importing is not a continuing offence; and undemocratic, because Parliament should correct any perceived error arising from the Supreme Court’s interpretation of its criminal legislation”. The Intervener CLA [35] The CLA adopts the appellant’s argument that Bell must be followed. The decisions in Foster , Onyedinefu , and Buttazzoni effectively render the concurring judgment of Dickson J. in Bell the law in Ontario. This will result in convictions of importing for those whom the evidence fails to establish played any role in bringing controlled substances into Canada or causing those substances to enter Canada from abroad. [36] The CLA says that the plain meaning of “import” and the legislative intention underlying the creation of the offence support a narrow definition of the term. Other jurisdictions have expanded the definition to include dealing with controlled substances in connection with their importation. But Parliament has not done so, and it is not open to this court to do so indirectly. Further, this unprecedented extension stigmatizes conduct that is properly the subject of discrete offences as “importing”. Such an expansion disproportionately harms marginalized groups and perpetuates discrimination in the justice system. The Respondent [37] The respondent sees no need to reconsider the recent authorities in this court impugned by the appellant. Adherence to precedent enhances the legitimacy and acceptability of judge-made law and by so doing enhances the appearance of justice. The first consideration for the court in deciding whether it should overrule a prior precedent is whether the earlier decision is wrong. Absent error, no basis exists to overturn prior precedent. Foster correctly applied Bell . Likewise, the authorities that apply Foster . No case for departure has been established. [38] The functional approach that characterizes this court’s approach in Foster is not only faithful to the reasons of the majority in Bell , but also makes sense. It takes into account the myriad ways in which controlled substances may be imported and that crossing the border into Canada is a process, not something that happens in an instant or by crossing over an imaginary line. [39] The Bell majority adopts the ordinary meaning of “import” – to bring or cause a controlled substance to be brought into Canada. The offence is complete when the substance enters the country. The physical and fault elements coalesce. But the Bell majority created no bright-line rule that defines when contraband enters Canada. This was left for the trial and intermediate appellate courts to determine in individual cases. This court did so in a manner consistent with, and in no way misapprehended the effect of, the disposition in Bell . [40] The respondent contends that the analysis in R. v. Vu , 2012 SCC 40, [2012] 2 S.C.R. 411 – which distinguishes between offences “complete in law” and those “complete in fact” – is not confined to any particular type of offence. The court did not restrict this analysis to continuing offences, nor is such a submission sound in principle. A non-continuing offence may take time to commit. It may be committed at different points in time by different people. When an offence is completed should be determined on the facts of each case. [41] The reasoning in Foster , the respondent contends, is a sensible approach to complex border-crossings. But the Foster approach is not limited to airports. All border-crossings can be a complex matrix of checkpoints and regulations. The Foster approach – that importing is not factually complete until the contraband clears customs and thus becomes available to the importer – effectively manages these complexities. It permits an assessment of what it means to truly “enter the country” on a case-specific basis. Both Onyedinefu and Buttazzoni represent a logical application of Foster in the controlled delivery framework because the object of the importation had not concluded when the importation was alleged to have occurred. [42] The respondent says that the appellant has failed to establish any justifiable reasons for this court to overrule the precedents challenged on appeal. We do not lightly depart from prior precedent. We only overrule prior erroneous decisions if there are sufficient reasons to do so. When invited to do so, we weigh the advantages and disadvantages of correcting the error. We focus on several factors. The nature of the error. The effect on the parties and future litigants. And the administration of justice. [43] In this case, as the respondent puts it, the analysis in Foster does not expand the scope of liability for importing beyond what the majority in Bell authorizes. The Crown must prove not only that an accused intentionally brought a controlled substance into Canada, or caused such a substance to be brought into the country, but also intended to do so with knowledge of the nature of the substance and its origins. These elements were established on the evidence adduced at trial. The legal principles in cases of importing are not in any state of uncertainty, nor are they inconsistent with the intention of Parliament to prevent devastating drugs from landing on Canadian streets. The Intervener AGO [44] The AGO submits that the common law of the offence of importing requires no revision or reconsideration in this province. The elements of the offence are being articulated and applied consistently with governing jurisprudence of the Supreme Court of Canada and with the plain meaning of the verb “import”. The applicable definition stigmatizes as importers only those persons who knowingly bring contraband into Canada from outside Canada, or who knowingly cause contraband to be brought into Canada as principals or parties to the offence of others. This is as it should be. [45] The meaning to be assigned to the term “import” is important for the purpose of prosecutions conducted by the Attorney General of a province. These include importing firearms and related accessories under s. 103 of the Criminal Code , R.S.C. 1985, c. C-46. And importing child pornography, contrary to s. 163.1(3). The correct definition of “import” must consider its meaning through the broad lens of evolving and changing methods of bringing contraband into Canada. The meaning assigned should not focus on a discrete moment when a border is crossed, customs cleared, or contraband is received. [46] Section 84(1) of the Criminal Code provides an exhaustive definition of “import” for the purposes of Part III of the Criminal Code (Firearms and Other Weapons) . For those purposes, the term means “import into Canada and, …, includes the importation of goods into Canada that are shipped in transit through Canada and exported from Canada”. Sophisticated firearms importing schemes succeed because of the different roles played by various participants in the scheme. A definition of importing that would exclude some because their actions are not sufficiently linked to the event of border-crossing would fail to address the practical heart of the offence. Those who have the mens rea for the offence and whose actions are part of the process of moving the contraband to the intended recipient are properly convicted of importing. This is so regardless of the time of their involvement or the role they played concerning border-crossing arrangements. [47] The AGO submits that when the offence of importing “ends” will be a question of fact to be determined on the evidence in each case. That point will be when the trier of fact determines that the contraband has arrived in the hands of the intended recipient. This will be the point at which importing becomes possession, or possession for the purpose of trafficking in the contraband. [48] Nor does the correct definition of importing ensnare too many unsophisticated offenders. This argument overlooks the fact that to convict, the Crown must prove all the essential elements of the offence beyond a reasonable doubt. This includes the fault element. An intention to import. Knowledge of the nature of the contraband. And knowledge that it has come from outside Canada. The simple reality is that importing is a process. The current scope of the offence ensures that those essential to the success of importing schemes, including key domestic distributors and those who take receipt of internationally shipped packages of contraband, are properly convicted of what they do – importing. The Governing Principles [49] Some basic principles inform our decision in connection with this ground of appeal. Although the focus of the argument has been on the correctness of a series of decisions in this court and their compatibility with the decision of the Supreme Court of Canada in Bell , other principles – none of which are unique to the offence of importing – are of service in the analysis that follows. Some have to do with what is required to establish criminal liability. Others with the manner in which the essential elements of an offence may be proven. And the remainder with trial jurisdiction. The Coincidence/Concurrence Principle [50] Crimes consist of a physical element and a fault element. A variety of terms are used to describe these elements. Among them are actus reus and mens rea . Not only must each of these elements be proven beyond a reasonable doubt, the prosecution must establish that, at some time, these elements were concurrent. In other words, the physical element must be contemporaneous or coincident with the fault element: Glanville Williams, Criminal Law: The General Part , 2nd ed., (London, UK: Stevens, 1961), at para. 1, p. 2 (“ CLGP” ); Glanville Williams, Textbook of Criminal Law , 4th ed., (London, UK: Sweet & Maxwell, 2015), at para. 10-037, p. 276 (“ TCL” ). It follows that it is not enough that a mentally innocent act is followed later by mens rea . Nor does a later intent amount to a crime without another act in which it becomes manifest: CLGP , at para. 1, p. 2. [51] On the other hand, it is not always essential that the physical and fault elements be completely concurrent. The determination of whether the fault element or mens rea coincides with the physical element or actus reus will depend to a large extent on the nature of the physical element. A series of acts may form part of the same transaction and so comprise the physical element of an offence. This is so irrespective of whether the offence involved is a continuing offence: R. v. Cooper , [1993] 1 S.C.R. 146, at p. 157-8. See also, Meli v. The Queen , [1954] 1 W.L.R. 228 (P.C.); TCL , at paras. 10-037-10-039, pp. 276-78. The Modes of Participation [52] Our criminal law does not distinguish among the modes of participation in an offence in determining criminal liability. Section 21(1) of the Criminal Code makes principals, aiders and abettors equally liable. A person becomes a party to an offence when that person, knowing of a principal’s intention to commit the crime, and with the intention of assisting the principal in its commission, does something that helps or encourages the principal in the commission of the offence: Vu , at para. 58, citing R. v. Briscoe , 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14-18. [53] Section 21(2) is a form of parasitic criminal liability capturing participants in a common unlawful purpose in specified circumstances. The accused is party to an offence that is committed by another participant in carrying out the common unlawful purpose provided the accused has the required degree of foresight that the incidental crime would be committed: R. v. Simon , 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 43. Establishing Criminal Liability [54] To establish the essential elements of an offence, thus the criminal liability of an accused for its commission, the Crown introduces evidence that is relevant, material and admissible. This evidence may be direct or circumstantial in nature. Or it may consist of a combination of both types of evidence. [55] Circumstantial evidence gives rise to inferences, deductions of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings at trial. [56] As a means of establishing a fact, thus an essential element of an offence and ultimately guilt, circumstantial evidence may invoke one or more chains of reasoning: · prospectant, such as evidence of motive; · concomitant, such as evidence of opportunity, means, or skill; and · retrospectant, such as evidence of after-the-fact conduct. [57] Evidence of after-the-fact conduct is circumstantial evidence that invokes a retrospectant chain of reasoning. The process of reasoning is that the subsequent occurrence of an act, state of mind, or state of affairs justifies the inference that an act was done, or state of affairs or of mind existed at a material time in the past, when the charged offence is alleged to have been committed: R. v. Adamson , 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 56. [58] The reasoning process involved in the retrospectant use of circumstantial evidence is not offence-specific or limited to certain offences. As with any item of circumstantial evidence, evidence of after-the-fact conduct is receivable if it is relevant, material, and compliant with any applicable rules of admissibility: R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107. Trial Jurisdiction [59] As a general rule, the courts of one province have no jurisdiction to try an offence committed entirely within another province: Criminal Code , s. 478(1). However, the Criminal Code recognizes that, in some circumstances, offences may be committed in more than one territorial division. As a result, the Criminal Code makes provision for the jurisdiction of courts to try offences extending over more than one “territorial division” as defined in s. 2 of the Criminal Code . [60] Offences commenced in one territorial division and concluded in another are deemed to have been committed in each: Criminal Code , s. 476(b). In the result, the courts of either jurisdiction have the authority to try these cases. [61] The offence of importing controlled substances may be committed anywhere in Canada. And one offence may occur in whole or in part at more than one place in Canada. For example, an importer from one territorial division may make all the arrangements and do all the acts necessary to bring about the importation of the controlled substance at another. In these cases, we can say that the importer has committed an offence which has occurred at two places, or an offence which has begun in one territorial division and has been completed in another. These offences may be tried where the contraband entered the country or where the acts or arrangements leading to the importation occurred: Bell , at p. 491. The Importing Offence [62] Importing a scheduled controlled substance is an offence under s. 6(1) of the Controlled Drugs and Substances Act ( CDSA ), S.C. 1996, c. 19. The punishment and mode of procedure depends on the Schedule in which the controlled substance is included. The Statutory Definition [63] The offence-creating provision, s. 6(1) of the CDSA , does not define or set out the essential elements of the offence of importing. Nor is “import”, in any of its forms, defined in the Interpretation Act , R.S.C. 1985, c. I-21. The CDSA does not incorporate by reference the definition of “import” as it may appear in any other federal enactment, as for example in s. 84(1) of the Criminal Code where “import” is defined for the purpose of Part III of the Criminal Code . The Ordinary Meaning of “Import” [64] The term “imports” in s. 6(1) of the CDSA is used as a transitive verb, its object, a scheduled controlled substance. In ordinary speech, “import” means to bring or introduce something from an external source to another place or destination. More specifically, “imports” means to bring in goods from another country. Importing posits a relationship between a source and a destination, a nexus more causal than temporal. The ordinary meaning of the term says nothing about when importing begins or when it ends. The Authorities [65] The principal source of assistance in assigning meaning to the term “imports” in s. 6(1) of the CDSA , more specifically to its temporal limits, is the jurisprudence commencing with the decision of the Supreme Court of Canada in Bell . The Decision in Bell [66] Bell was charged with importing cannabis and two related counts of possession of cannabis for the purpose of trafficking and simple possession of the same drug. The offence was alleged to have been committed at Mirabel, Québec, on or about April 18, 1979. The contraband was hidden in four gift-wrapped footstools shipped by air from Jamaica on Air Canada. Bell was the consignee of the shipment at his home address in St-Hubert, Québec. [67] The shipment containing the footstools arrived in Toronto on April 10 or 11, 1979. On inspection, Customs officials found 6.7 pounds of cannabis secreted in the footstools. The RCMP were notified and, on their instructions, the footstools were shipped to their designated destination at Mirabel Airport. The RCMP removed all but 5 grams of the cannabis , re-assembled the footstools, and – after someone inquired about the parcels at the airport – repackaged and returned them to the airport. On April 18, 1979, the appellant picked up the parcels, paid the freight charges, signed an entry form at customs, obtained a customs release and took the parcels to his home. [68] Bell was arrested at his home amid discarded wrapping paper and a dismantled footstool with its covering material removed. Police also found a piece of paper near the telephone on which was written a number corresponding to that of the Air Canada way-bill for the shipment and an address in Jamaica on the way-bill. The way-bill described the footstools as a gift. [69] The trial judge directed a verdict of acquittal, not because the act of importation was complete when the contraband entered at Toronto, but because the conduct of the RCMP in extracting the cannabis broke the chain of possession and completed the act of importation before Bell obtained the goods. [70] The Québec Court of Appeal set aside the acquittal entered at trial and directed a new trial on the count of importing. The court concluded that importing was a continuing offence that extended to the time the consignment was released from custody at Mirabel to Bell’s possession. The court also held that the intervention of the RCMP was irrelevant. [71] Bell appealed to the Supreme Court of Canada as of right. There, he argued that the act of importation was complete when the shipment entered Canada on April 10 or 11, 1979. He had no involvement there. Bell also submitted that if any offence had been committed, it had occurred in Toronto, not within the jurisdiction of the Québec superior court. [72] The majority judgment of four justices was given by McIntyre J. He concluded: i. that importing a (then) narcotic is not a continuing offence; ii. that importing bears its ordinary meaning of “to bring into the country or to cause to be brought into the country”; iii. that the offence of importing is complete when the goods (narcotics) enter the country; iv. that once the importing offence is complete, the possessor or owner of the contraband may be guilty of other offences, but the offence of importing has been completed and the importer, in keeping or disposing of the drug, has embarked on a new criminal venture; v. that conviction of importing does not require that an accused carried the contraband into the country or was present at the point of entry; and vi. that importing may be committed anywhere in Canada and the offence may occur in whole or in part at more than one place in Canada. The importer, from one part of Canada, may make all the arrangements and do all the acts necessary to bring about the importation at another place. Thus, the importer could be said to have committed an offence which has occurred at two places, or an offence committed in one jurisdiction and completed in another. The courts in either jurisdiction have authority to try the case. See, Bell , at pp. 488-91. [73] Dickson J. (as he then was) wrote separate reasons in which he reached the same result as the majority. He began his analysis by ascribing to “import” its ordinary and natural meaning: “to bring in (goods or merchandise) from a foreign country”. This means to bring in goods from anywhere outside Canada to anywhere inside Canada: Bell , at p. 477. [74] For his part, Dickson J. saw no reason in principle or precedent to restrict the relevant location of importing to the actual point of border-crossing. Importing is a process. Although importing necessarily includes the act of crossing the border, importing extends to the point of intended final destination. The test is whether a direct link exists between the place of origin outside Canada and the destination inside Canada: Bell , at p. 477. [75] As a principal in importing, an accused must bring in or cause to be brought into Canada goods from a foreign country. By definition, this requires crossing the Canadian border. A person who becomes involved only after the border-crossing may be an aider or abettor of the principal who brings the goods from outside Canada to a destination inside Canada: Bell , at p. 478. [76] The essence of the reasons of Dickson J. appears in this passage: The elements of an offence of importing are present as soon as the goods cross the border, but the offence is not over and done with until the goods have reached their intended final destination within Canada. Accordingly, a charge could be laid relating to the point of entry or of destination or anywhere in between. In this case there was evidence that the intended and actual destination within Canada was St-Hubert, but there were stops along the way at Toronto and Mirabel. In my view it was open to the Crown to charge importing at Toronto or at Mirabel or at St-Hubert. See, Bell , at p. 481. [77] Of some significance to the arguments advanced here is Dickson J.’s conclusion that it was of no consequence to his analysis whether importing is or is not regarded as a continuing offence: Bell , at p. 481. Dickson J. did not conclude that importing was a continuing offence. Rather he expressly found it unnecessary to do so. Nor did he say that his distinction between completion of an offence in law and completion of an offence in fact applies only to continuing offences. The Decision in Foster [78] Unlike Bell , Foster was not a case of controlled delivery. Foster brought 1.2 kilograms of cocaine into Canada hidden in her bra. CBSA officers located it after she was referred for secondary inspection following disembarkation from a flight from Jamaica at Pearson International Airport. At trial, she advanced the excuse of duress. The Crown resisted duress on the basis that Foster had a safe avenue of escape by reporting her predicament to law enforcement officials before the offence of importing was complete when she cleared customs. The jury rejected the excuse of duress and found Foster guilty of importing. This court dismissed her appeal from conviction. [79] The Foster court expressed a preference for the reasoning of Dickson J. in his minority opinion concurring in the result in Bell . But, mindful of its obligation, despite this preference, the court followed the reasons of the majority to conclude that in Foster , the importing offence was not complete until the cocaine and its carrier had cleared customs at the conclusion of the secondary inspection. This conclusion is consistent with the prior decisions of this court in Tan, at para. 8, and R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.), at para. 54. [80] In Foster , this court, faithful to the majority decision in Bell , did not conclude that importing was a continuing offence. In reaching our conclusion in Foster about when the importing ended, a point not determined by the Bell majority, we relied on not only what the Bell majority wrote, but also its conclusion, as the Québec Court of Appeal had decided, that a new trial should be ordered. This could only have occurred if there were evidence that the offence was committed in Mirabel. And there was evidence that supported an inference that Bell , in Mirabel, had caused, or been involved in causing, the cannabis to be brought into Canada. That evidence included items, found on a search of Bell’s residence, capable of supporting an inference that Bell was involved in causing delivery of the packages to Canada. [81] The Foster court also found support for its conclusion in the distinction drawn by Dickson J. in Bell between an offence complete in law and an offence complete in fact. This distinction was adopted by Moldaver J. in Vu , a case involving the continuing offence of kidnapping. The analogy was not intended and should not be taken as a conclusion that importing is a continuing offence, or that the Foster court was following the minority, rather than the majority, in Bell . The Decision in Onyedinefu [82] In Onyedinefu , the appellant admitted he obtained a box delivered by FedEx. The box, which was sealed, contained 146 grams of heroin. It originated in India and came to Canada from the United States. At trial, the appellant testified that he was involved in several schemes to import goods from various countries. He posed as a realtor to gain access to empty houses where drop-offs of the imported goods could be made. He believed the package containing the heroin actually contained electronics for which he was to receive a fee of $800. The trial judge rejected the appellant’s version of events and convicted him of importing heroin and possession of heroin for the purpose of trafficking. [83] In this court, the appellant argued that the offence of importing was complete before he took possession of the package, thus he could not be found guilty of that offence. This court disagreed, and observed that importing is a process that begins with the procurement of the contraband, its transport to a port of entry, and ultimately to a domestic destination or recipient. The offence was not factually complete until the appellant took possession of the package. He was an aider of the principals of the scheme: Onyedinefu , at paras. 7-8. The Decision in Buttazzoni [84] At trial, the appellant Buttazzoni was acquitted of importing, but convicted of conspiracy to import and possession of cocaine for the purpose of trafficking. The principal issue on appeal was whether the conviction of conspiracy to import was well grounded in law and in fact. [85] A container was shipped from Guyana, its destination, “Moe’s Island Grocery” in Mississauga. When the container arrived by ship in Saint John, New Brunswick, CBSA staff inspected the container. It contained a quantity of canned and prepared food products, together with 20 empty skid pallets which served as space fillers. In the wood of 19 of these pallets were 112 kilograms of cocaine valued at between $3,920,000 and $8,960,000. Police removed the cocaine except for 1 gram and arranged for a controlled delivery. [86] Police delivered the container to a railyard in Brampton. A man had leased a storage facility several days earlier. The only other person authorized to access the unit was the appellant. The other man arranged for a truck to deliver the container from the railyard to the storage facility. The appellant drove the other man to the storage facility to meet the truck. The appellant punched in the code to open the gate. Both men re-attended later that day and took delivery of the container. There was evidence of the appellant’s involvement with the shipment before it entered the railyard, as well as of his conduct at the storage facility when the container was delivered. [87] The appellant argued that the importation ended when the drugs entered Canada and cleared customs at Saint John on May 28, 2012 – about two weeks before delivery of the container to the railyard in Brampton and its subsequent transport to the storage facility. The Crown was required but failed to prove that the appellant joined the conspiracy before it ended by the completion of its object, the importation of the cocaine. [88] The Buttazzoni court rejected the argument. The court held that, following Onyedinefu , the importation was not factually complete until its Canadian recipient took possession of it on June 13, 2012, after it became available at the railyard. The Decision in Anderson ; Cumberbatch [89] In R. v. Anderson; Cumberbatch , 2020 ONCA 780; leave to appeal refused 2021 CarswellOnt. 7082, CBSA officers intercepted a package addressed to Harley Eckert at an address in St. Catharines. The package, apparently sent from Jamaica, was labelled with a customs declaration listing various non-perishable food items as its contents. On inspection, cocaine was discovered. Police became involved. They removed all but one ball of cocaine and reassembled the package after installing a tracking device that would also trigger and alert the police when the package was opened. Police then obtained a general warrant to authorize a controlled delivery. [90] The controlled delivery took place. The consignee signed for the package and put it in the trunk of his vehicle. A few hours later, the package was transferred to the rear seat of the Anderson’s vehicle by Cumberbatch, who had received the package from the consignee. The two appellants remained together for about an hour at the place of transfer before Anderson drove home and took the package with her into the house. About an hour later, the tracking device alerted police that the package had been opened. They entered Anderson’s home and found her standing by the opened package. The bags in which the cocaine had been found had been removed. They were being examined by another man in a backyard shed. [91] The appellants and Eckert were convicted of importing and possession of cocaine for the purpose of trafficking. On appeal, Anderson and Cumberbatch contended that the conviction of importing was unreasonable because the offence was complete when the package was delivered to the consignee. Since their involvement occurred after the offence was complete, they could not be convicted of importing. At best, possession for the purpose of trafficking, provided the required elements of knowledge and control could be proven beyond a reasonable doubt. [92] This court rejected the argument, which was different than the argument that the appellants had advanced at trial. There, the appellant had urged that the importation was complete when the drugs entered the country, even before the consignee took delivery. On appeal the appellants contended that the importation was complete when the consignee, as the first domestic recipient, received the package: Anderson ; Cumberbatch , at paras. 14, 16. [93] In Anderson ; Cumberbatch , the court held that Buttazzoni did not stand for the principle that it is always the first domestic recipient who is the importer. It is the identity of the “ultimate” domestic recipient that is important. The offence of importing was not factually complete until the package was received by the ultimate recipient. In Anderson ; Cumberbatch , the ultimate recipient was the man in Anderson’s backyard shed who was apparently searching for the cocaine in the packaging in which police had found it secreted: Anderson ; Cumberbatch, at paras. 20-22. The Current State of the Law [94] This survey of Bell and subsequent decisions of this court in the ensuing decades leads me to several conclusions about the principles that govern the essential elements of importing and their proof. [95] As with all true crimes, importing a controlled substance consists of a physical and a fault element. Each element must be established by relevant material and admissible evidence beyond a reasonable doubt. At some point, the two elements must coincide. [96] The physical element in importing requires that an accused import a substance. That substance must be a controlled substance included in a Schedule under the CDSA . [97] The fault element in importing requires that the accused intended to import a substance and knew that the substance was a controlled substance, though not necessarily the precise substance alleged. [98] The majority decision in Bell teaches that the term “import”, in its various forms undefined in the CDSA , has no special or restricted meaning. It bears its ordinary meaning of bringing, or causing a controlled substance to be brought into the country. We also learn from the Bell majority that the offence is complete when the controlled substance “enters the country” and that importing is not a continuing offence, as for example, is possession, or as later determined in Vu , kidnapping. [99] What we do not know from Bell , is what “enters the country” means – or more accurately put, when the “enters the country” requirement is completed or ends. We do know that the offence may be committed anywhere in Canada and, in all or in part, at more than one location. And that the courts in each place where it occurs have jurisdiction to try those charged there. [100] Since Bell doe s not define “enters the country”, or at least its endpoint or outer limit, it has fallen to this and other intermediate appellate courts to do so – at a minimum in cases in which controversy exists about whether the evidence of an accused’s involvement satisfies the physical element of the offence. [101] Any meaning assigned to “enters the country”, thus the endpoint or temporal limit of the physical element in importing, must be consistent with the decision of the majority in Bell . But it must also keep a weather eye on the purpose of the legislation – to prohibit dangerous drugs becoming available to the population of Canada – and the myriad ways, bounded only by the limits of human ingenuity, in which controlled substances may be brought in from abroad. Personal carriage. Mail or courier service. By air. By water. [102] When the physical element in importing has been completed, its endpoint is important in the demonstration of an accused’s criminal liability. But, as we know, evidence of things said and done by an accused after an offence has been committed may assist in proof of that accused’s participation in the antecedent offence and demonstrate the fault element that accompanied it. Completion of the physical element is not the final curtain on proof of criminal liability. [103] The appellant acknowledges that binding precedent in this province requires that we hold that contraband, such as controlled substances, enters the country when it clears customs. In this case, he says, that means the appellant should be acquitted. But if the appellant paid the duties owed to the impersonated FedEx employee, as the evidence shows, is he not hoisted on his own petard? The package cleared customs when he paid the duties owing, otherwise it would have remained under Customs control. [104] Not every importation involves clearance through Customs. Consider an act of smuggling to an isolated location. Guns and drugs across the St. Lawrence River from New York State into Ontario. Or Quebec. The precise purpose – to avoid customs and its rigours. What clearance through Customs does is to result in the cessation of control over the contraband by the appropriate authorities, with the consequence that the contraband becomes available to the carrier, consignee, addressee, or their delegate and remains in Canada. Perhaps a more felicitous expression of the endpoint of importation is that it occurs when contraband from abroad enters Canada and is no longer under the control of the appropriate authorities. [105] The appellant does not challenge the correctness of the decision in Foster . It is consistent with binding precedent. But, he says, its reasoning is flawed. The descriptives the appellant applies vary. Unlawful. Undemocratic. Anticipatorily over-ruling the binding precedent of Bell . Stripped of hyperbole and pejorative characterization, I take this to mean that the reasoning is legally wrong. [106] The decision in Foster applies and is consistent with the majority decision in Bell . Left unanswered by Bell , by the appellant’s own admission, is the meaning to be assigned to the phrase “enters the country”. This, Foster concludes, in a case of personal carriage of the contraband, of bringing it into Canada, occurs when the contraband (and its carrier) clear Customs. This concludes the physical element of the offence. This endpoint does not mean that importing is a continuing offence. Nor is it inconsistent with what the majority in Bell decided. It reflects the law in this province as expressed in post- Bell authorities, the integrity of which is not challenged here. [107] The decision in Foster involved a courier who brought the drugs into Canada from Jamaica. Although the drugs were physically in Canada when she arrived at Pearson International Airport, they and she remained in the control of the relevant authorities until she cleared Customs. It was only when she and the drugs cleared Customs that the drugs were no longer in the control of the relevant authorities and the offence of importing was complete. [108] The circumstances here differ from Foster . The drugs were sent from Kenya by FedEx. When the package arrived in the United States, heroin was detected on customs inspection. The package and its contents were forwarded to Canada where authorities removed most of the drugs but retained control over the package and the drugs remaining in it. A warrant authorizing a controlled delivery was obtained. The authorities did not give up control over the package and its contents until the appellant, posing as the consignee, Abel Morrison, took delivery. It was at that time that the offence of importing was complete. The drugs were physically in Canada and apparently out of the control of the authorities. The circumstantial evidence, taken as a whole, established the appellant’s liability for importing. [109] In some cases, as the example given in para. 104 illustrates, the drugs may be physically in Canada but never in the control of the authorities because of the manner in which the drugs have been brought into the country. In these cases, the offence of importing is complete when the drugs are physically in Canada. It will be for the Crown to establish that any person charged brought the drugs into Canada from abroad, or caused them to be brought into this country from abroad. The evidence relied upon to establish liability may be direct, or circumstantial, or a combination of both. [110] A final point about the decision in Foster : the reference to the distinction between an offence being complete in law, on the one hand, and in fact, on the other. [111] This distinction was referred to with apparent approval by Moldaver J. on behalf of the court in Vu in deciding that kidnapping was a continuing offence. Neither Moldaver J. in Vu , nor Dickson J. in his minority reasons in Bell , confined the distinction to continuing offences. In Foster , the reference to Vu and the distinction between completion of an offence in law and in fact was not essential to the decision that the importing was not complete until Foster and her contraband cleared Customs. Whether the distinction extends beyond continuing offences is best left to another day and should not form part of the analysis in importing cases until that decision has been made. [112] The other authorities whose continued vitality and precedential value are challenged here – Onyedinefu and Buttazzoni – may be considered together. Each applied the principles of Foster to controlled deliveries. In each case, the argument was the appellant’s involvement occurred only after the importation was complete. It followed, the submission continued, that the appellant could not have been convicted of an offence that was complete before he became involved. [113] To the extent that each applied the completion in law – completion in fact distinction from Foster , as I have already explained, that reasoning may be flawed, applicable only to continuing offences of which importing is not one. It should not be followed in determining whether liability for importing has been established. The standard that should be applied in connection with the physical element of the offence is whether the contraband has cleared Customs. Or, more generally, whether the contraband, having entered Canada from abroad, is no longer within or under the control of the Customs authorities. [114] Without more, the mere fact that the principal evidence against an accused consists of things done or said after the physical element of the offence of importing has been completed does not mean that an acquittal will inevitably follow. Each case falls to be decided on its own facts. As is well known, evidence of after-the-fact conduct, including things done and said, may support an inference of prior participation and its accompanying fault element. [115] Foster applied the standard I have described to a case in which the appellant brought the cocaine physically into Canada. She did so by secreting it on her person. She and the cocaine were and remained in the control of the authorities. Her conviction was consistent with Bell , Tan and Valentini . The importing offence was not complete until she and her cargo cleared Customs since only then was the contraband beyond the control of the authorities. [116] The decisions in Onyedinefu and Buttazzoni both involved controlled deliveries where drugs had been detected prior to their arrival in Ontario. The conviction under appeal and in Onyedinefu was importing and in Buttazzoni conspiracy to import. Each applied the complete in law/complete in fact distinction from Foster . As I have already explained, that reasoning should not be followed unless it is approved by the Supreme Court of Canada. [117] In Onyedinefu , the drugs were present in a package that the appellant admittedly brought into Canada but which he claimed he thought contained electronics. The package remained under the control of the authorities until the appellant picked it up. It was only at that point that the authorities gave up control. It was at that point that the importation ended. Despite the trial judge’s use of the complete in law/complete in fact analysis, the result would have been no different had the analysis followed the proper standard. [118] In Buttazzoni , another case of controlled delivery, the appellant was acquitted of importing, but convicted of conspiracy to import. The court considered when the importation was complete because the Crown had to prove and the trial judge had to find that the appellant had joined the conspiracy before its object – importation of cocaine – was complete. The court concluded that the importation did not end until the co-accused picked up the container on behalf of the consignee, a grocery store. In reaching this conclusion, the court applied the complete in law/complete in fact reasoning. [119] The conclusion reached by the Buttazzoni court would not have been different had the analysis applied the proper standard. There was ample evidence of Buttazzoni’s involvement with the shipment from Guyana before it arrived at the railyard to support an inference that his agreement with his co-accused included an agreement to import drugs into Canada. The court also concluded that the importation ended on the date the cargo was picked up at the railyard. The same result would fall on the correct analysis since the drugs remained in the control of the authorities until the consignee picked them up in the railyard. [120] It follows from what I have said that, apart from rejecting the complete in law/complete in fact reasoning in Foster , Onyedinefu , and Buttazzoni , I would not overrule or otherwise qualify the decisions rendered in those cases. In each case it is for the trier of fact to determine on the whole of the evidence whether the Crown has proven beyond a reasonable doubt that the accused was responsible for the importation alleged, that is to say, that the accused brought the controlled substance into Canada or had it brought here from outside the country. [121] Neither appellant invited us to overrule or otherwise qualify our previous decision in Anderson ; Cumberbatch . In particular, we were not asked to reject its reference to the “ultimate recipient” as extending the offence of importing beyond what Bell and the other authorities would permit. In these circumstances, we consider it best to leave to another day whether that decision requires reconsideration. The Principles Applied [122] As I will briefly explain, I would not give effect to this ground of appeal. [123] The first issue the trial judge considered was whether the appellant had been involved in the physical element of the offence – the act of importing the heroin. This was a contested issue at trial. The position of the appellant was that the physical element of the offence was complete before he had any connection to the package. [124] The trial judge held that the offence of importing was not complete in fact until the contraband reached its intended recipient. She relied on the decisions in Foster , Onyedinefu , and Buttazzoni to support her conclusion. [125] To the extent that the reasoning of the trial judge invoked the complete in law – complete in fact distinction, it is in error. But her conclusion, that the importation was completed when the appellant obtained the package from the impersonated FedEx delivery operator, was correct. It was only then that the packages were “in play” in Canada. It was only then that the controlled substance in the package – heroin – was no longer under the control of the appropriate authorities, thus became available to the consignee or addressee or their delegate and reached the point that would result in them remaining in Canada. [126] The trial judge’s findings of fact were at once faithful to the evidence adduced at trial and supportive of the appellant’s participation in causing the heroin to be brought into Canada. [127] When asked by the impersonated FedEx delivery operator whether he lived at 10 Haynes Avenue, the appellant responded affirmatively. He got out of the vehicle in which he had arrived there. He had crumpled currency in his hand. He asked how much he owed. He corrected the officer’s deliberate mispronunciation of the first name of the consignee. He repeated the full name of the consignee, “Abel Morrison”, twice without even having been advised of it by the officer. The appellant did not in fact live at 10 Haynes Avenue. He misled the officer into thinking that he did live there and that his name was “Abel Morrison”. He had received a text from “Chucks 3” that read: “Abel Morrison, 10 Haynes Ave.” The heroin in the package had substantial value. On arrest and after Charter advice, the appellant told investigators that his girlfriend, who was with him when he took delivery of the package, “had nothing to do with this”. [128] This ground of appeal fails. Ground #2: Unreasonable Verdict [129] The core of this complaint is that the appellant’s belief that the package imported from Kenya contained a controlled substance was not the only reasonable inference from the whole of the evidence admitted at trial. [130] The appellant acknowledged that the evidence, taken as a whole, was sufficient to support an inference that the appellant believed the package contained a controlled substance. However, that was not the only reasonable inference available, as is required by the authorities to sustain the finding. [131] A brief reference to the trial judge’s reasons provides sufficient background to evaluate the merits of this claim. The Reasons of the Trial Judge [132] The trial judge explained why she was satisfied that the only reasonable inference from the totality of the circumstantial evidence received at trial was that the appellant knew that the package contained a controlled substance. She wrote: First, I rely on the fact that the accused received a text message that provided him with the name Abel Morrison and the address of 10 Haynes Avenue. He responded “ok”. I view this as an indication that he knew that there was a delivery for Abel Morrison that he was to take receipt of at that address using a false name. This is some indication that he knew that there was something illicit about what he was doing. Second, I consider the value of the package. As Hill J. explained in R. v. Ukwuaba , 2015 ONSC 2349, at para. 112, heroin trafficking is a commercial business for profit. Common sense dictates that those who own this sort of valuable illegal item seek to protect it against the risk of detection or loss. It makes sense, therefore that they would protect their investment by insuring that they have trusted insiders handling the drugs where possible. This necessitates that those who receive packages into Canada with valuable narcotics appreciate what it is they are receiving. Common sense powerfully suggests that Mr. Okojie knew what he was receiving. Third, I consider the level of sophistication of the importing operation. Both parties agree that concealing the small heroin packages in the top of the mascara was sophisticated. This packaging would have been time consuming. The package with the mascara was shipped from Kenya. Given the amount of effort spent concealing the drugs and then getting them from Kenya into Canada, it just makes sense that the person receiving the package would know what is in it. Fourth, I consider the words and actions of Mr. Okojie at the time that he took possession of the package, knowing that it was not addressed to him. I view his conduct as demonstrative of the fact that he was aware that there was a controlled substance in the package and that he was determined to ensure that he took possession of it, even if doing so required misleading the officer as to who he was. More specifically: a. Mr. Okojie knew that there was a FedEx package being delivered to 10 Haynes Avenue. When Sgt. Gorgichuk first asked him if he lived there, he said he did. Given that he provided a different home address to Cst. Rimanelli at the police detachment after his arrest, it appears that he lied to Sgt Gorgichuk so that she would deliver the package to him. b. Mr. Okojie also intentionally misled the officer into believing that he was Abel Morrison, the person to whom he knew the package was sent. When she mis-pronounced the first name of the person to whom the package was sent, he immediately corrected her and provided the last name Morrison. I find that he did this with the intention of making her believe that was who he was, even if he did not say so directly. I have no doubt that the accused was trying to appear to be the intended recipient of the package. c. Mr. Okojie signed the door delivery tag to acknowledge taking possession of the package. What he wrote on the document is not really clear. I cannot conclude, as the Crown suggests, that he used a signature different from what he later used at the detachment. But, I do find that the act of signing for the package was a further step taken in his effort to hold himself out as the proper recipient of the package, Abel Morrison. Fifth, I find that Mr. Okojie’s statement after his arrest that his girlfriend had nothing to do with this is some evidence that he knew that there was a controlled substance in the package when he took it. While the package was not addressed to his girlfriend, his utterance suggests that he knew that there were a small number of people who would be aware of its contents, that he was within that circle, and that he knew that his girlfriend was not in that circle. While I accept that Mr. Okojie could have been trying to mislead the police, I view his statement as a further piece of circumstantial evidence that he knew that there was a controlled substance in the package. The Arguments on Appeal [133] As I have said, the appellant accepts that the requisite belief that the package contained a controlled substance was a reasonable inference from the whole of the evidence received at trial. But that is not enough to prove this essential element beyond a reasonable doubt, much less to establish the appellant’s guilt. The required belief was not the only reasonable inference available on this evidence. Other reasonably possible beliefs were available. Explosives. Counterfeit money. Fraudulent banking instruments. Poison. [134] The respondent accepts the standard of proof required when a finding of fact about an essential element of an offence, as well as the ultimate issue of guilt, rests solely on circumstantial evidence. Further, the respondent acknowledges that inferences consistent with innocence may be grounded on the absence of evidence, as well as unproven facts. However, the respondent reminds us, the other reasonable inferences consistent with innocence must find their footing in logic and experience applied to the evidence or lack of evidence, not speculation. [135] In this case, the respondent continues, the proposed alternative inferences inconsistent with guilt – explosives, poisons, counterfeit money, and the like – are speculative, far-fetched theories, unmoored from logic and human experience. What is more, a relevant factor in evaluating the merit of this ground of appeal is that the appellant did not testify nor adduce any evidence in support of any alternative reasonable inference consistent with innocence. The Governing Principles [136] The governing principles are beyond debate. [137] In a case in which proof of one or more essential elements of an offence depends exclusively or largely on circumstantial evidence, the inference of guilt or of an essential element of the offence must be the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 34. [138] Inferences consistent with innocence may, but need not, arise from proven facts. This is because these inferences may also arise from a lack of evidence: Villaroman , at paras. 35-36. To establish guilt, the Crown is required to negative these reasonable possibilities consistent with innocence, but need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of an accused: Villaroman , at para. 37. These other plausible theories or reasonable possibilities must be based on logic and experience applied to the evidence, or absence of evidence, not on speculation: Villaroman , at para. 37. [139] To support a finding of guilt based entirely or substantially on circumstantial evidence, the circumstantial evidence, taken as a whole, and assessed in the light of human experience, must exclude any other reasonable alternatives: Villaroman , at para. 41; R. v. Ali , 2021 ONCA 362, at paras. 97, 98. [140] A verdict is reasonable if it is one that a properly instructed jury, acting judicially, could reasonably have rendered. Where the verdict of the trial court challenged as unreasonable on appeal is based entirely or substantially on circumstantial evidence, the issue for the appellate court to determine is whether the trier of fact, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the evidence taken as a whole: Villaroman , at para. 55. It is fundamentally for the trier of fact to decide whether any proposed way of looking at the case is sufficiently reasonable to raise a doubt about the accused’s guilt: Villaroman , at para. 56. [141] When a conviction based wholly or substantially on circumstantial evidence is challenged as unreasonable on appeal, the appellate court may consider the appellant’s failure to testify as indicative of the absence of any inference alternative to guilt: R. v. Corbett , [1975] 2 S.C.R. 275, at pp. 280-81; R. v. George-Nurse , 2018 ONCA 515, 432 D.L.R. (4th) 88, at para. 32, aff’d, 2019 SCC 12, [2019] 1 S.C.R. 570. [142] A final point concerns the manner in which circumstantial evidence is to be assessed. Neither triers of fact at first instance, nor appellate courts on review for unreasonableness, examine individual items of circumstantial evidence separately and in isolation, adjudging them against the criminal standard and rejecting them should they fail to measure up to that standard. No individual item of circumstantial evidence is ever likely to do so. They are bricks with which to construct a wall, not the wall itself. In circumstantial cases, it is commonplace that individual items of evidence adduced by the Crown, examined separately and in isolation, have not a very strong probative force. But all the pieces of evidence have to be considered, each one in relation to the whole, and it is the whole of them taken together whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76; R. v. Morin , [1988] 2 S.C.R. 345, at pp. 361-62. The Principles Applied [143] I would not accede to this ground of appeal. [144] The appellant acknowledges that the cumulative force of the items of evidence relied upon by the trial judge can support the inference of knowledge of a controlled substance drawn by the trial judge. As Villaroman teaches, fundamentally, it was for the trier of fact to decide whether the proposed alternative inference was reasonable enough to raise a reasonable doubt about the appellant’s guilt. [145] The trier of fact was not entitled to speculate about other plausible theories or possibilities. She was constrained by logic and experience that she was required to apply to the evidence or lack of evidence. The appellant did not testify. He did not otherwise provide any basis for an inference inconsistent with guilt. Nothing about explosives. Or poison. Or counterfeit money. Or fraudulent banking instruments, as are now said to have been reasonably possible inferences. [146] This ground of appeal fails and with it the appeal from conviction. The Sentence Appeal [147] The appellant indicated that he also challenged the fitness of the sentence imposed upon him in the event that we set aside his conviction of importing, but not his conviction of possession of heroin for the purpose of trafficking. Since I would dismiss the appeal from both convictions, I do not reach the prospective sentence appeal. Disposition [148] For these reasons, I would dismiss the appeal in its entirety. Released: November 2, 2021 “D.D." “David Watt J.A.” “I agree. Doherty J.A.” “I agree. K. van Rensburg J.A.” “I agree, M.L. Benotto J.A.” “I agree. I.V.B. Nordheimer J.A.”