CITATION:
Hollinger Inc. (Re) , 2011 ONCA 765

DATE: 20111205

DOCKET: M40692 (C53706)

COURT OF APPEAL FOR ONTARIO

Sharpe J.A. (In Chambers)

BETWEEN

In the Matter of the
Companies
        Creditors Arrangement Act
, R.S.C. 1985, c. C-36, As Amended

And in
          the Matter of a Proposed Plan of Compromise or Arrangement with Respect to Hollinger Inc.,
          4322525 Canada Inc. and Sugra Limited

Applicants
          (Respondents on Motion)

Earl A. Cherniak Q.C., and Jason
          Squire, for Conrad Black and Conrad Black Capital Corporation

Michael E. Barrack and Megan
          Keenberg, for Hollinger Inc.

Ronald Foerster, for Torys LLP

Matthew Fleming, for KPMG LLP

Matthew B. Lerner, for Ernst &
          Young Inc. (Monitor)

Sarah L.M. Weingarten, for
          Independent Directors

Heard: November 28, 2011

On appeal from the order of Justice Colin L. Campbell of the
          Superior Court of Justice dated February 5, 2011.

Sharpe J.A.:

[1]

Conrad Black and the Conrad Black Capital Corporation (collectively Black)
    move for a stay of proceedings relating to a sealing order granted in a
Companies
    Creditors Arrangement Act
, R.S.C. 1985, c. C-36 (CCAA) proceeding pending
    determination of Blacks application to the Supreme Court of Canada for leave
    to appeal the order of this court upholding the validity of the sealing order.

[2]

The underlying facts relating to the sealing order are fully set out in
    the reasons of this court in
Re Hollinger Inc
. 2011 ONCA 579, 107 O.R.
    (3d) 1, and need not be repeated here.

[3]

Blacks stay motion is brought pursuant to the
Supreme Court of
    Canada Act
, R.S.C., 1985, c. S-26, s. 65.1 (1):

The Court, the court appealed from or a judge of
    either of those courts may, on the request of the party who has served and
    filed a notice of application for leave to appeal, order that proceedings be
    stayed with respect to the judgment from which leave to appeal is being sought,
    on the terms deemed appropriate.

[4]

I dismiss Blacks request for a stay for the following reasons.

[5]

This is not a typical request for a stay to suspend the operation of a
    judgment of this court or to suspend the operation of the order we upheld. Rather,
    Black is asking for an order pending the approval of the settlements which gave
    rise to the sealing order being made in the CCAA proceedings.

[6]

There is some question as to whether s. 65.1(1) gives me jurisdiction to
    grant that relief, as I am not being asked to stay proceedings with respect to
    the judgment from which leave to appeal is being sought. If a judge of this
    court lacks jurisdiction to grant a stay, it still would, of course, be open to
    the CCAA judge to suspend process, as that would not interfere in any way with
    the effect of this courts judgment.

[7]

Even if I were to accept Blacks submission and interpret s. 65.1(1)
    generously so as to clothe me with necessary authority, out of deference to the
    CCAA judge, I would exercise my discretion to refuse the a stay. The CCAA judge
    is, in my view, much better placed to assess whether the interests of the
    parties and the interests would be served by granting Blacks request.

[8]

As the matter was fully argued before me, I add that in any event, it is
    my view that Black has failed to satisfy the test for a stay.

[9]

I think it unlikely that the Supreme Court of Canada will grant Black
    leave to appeal this courts judgment.  However, given the wide range of
    factors that are weighed by the Supreme Court in dealing with leave
    applications, I am not prepared to say that the leave application is frivolous
    and vexatious.

[10]

I am not persuaded, however, that Black has demonstrated that refusing
    the stay and allowing the settlement approval process to proceed would cause
    him irreparable harm. As noted at para. 14 of our sealing order decision, Black
    concedes that his attack on the sealing order rests solely on his desire to
    uphold the open court principle. He does not assert that the terms of the
    sealing order give rise to any procedural disadvantage to him in the settlement
    approval process, nor does he allege any other harm resulting from the sealing
    order. The only interest Black asserts is what Mr. Cherniak describes a
    substantive right to challenge the sealing order as a violation of the open
    court principle.

[11]

I am not persuaded that a stay of the approval process is required to
    protect that right. If no stay is granted and the settlement is approved, the
    redacted portions of the settlement agreements will be made public. Although that
    would render the proposed appeal moot, the substance of the right claimed by
    Black would not be defeated as the redacted details of the settlement would still
    be made public. On the other hand, if the settlement is not approved, it would
    still be open to Black to argue before the Supreme Court of Canada that the
    sealing order never should have been made and that the redacted portions of the
    agreements should therefore be disclosed.

[12]

Finally, it is my view that the balance of convenience does not favour a
    stay. Blacks professed concern for the open court principle must be weighed against
    the interest of all other parties in bringing the CCAA process to a timely
    conclusion. I have no hesitation in saying that I would give more weight to the
    latter.

[13]

Accordingly, the motion for a stay is dismissed with costs to the
    respondent, Hollinger Inc., fixed in the agreed amount of $3,250 plus HST.

Robert J. Sharpe J.A.

RELEASED:  December 5, 2011


CITATION:
Hudgins v. Ontario, 2011
          ONCA 801

DATE:  20111215

DOCKET: C53949

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

William Donald Hudgins

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario

Defendant (Respondent)

William Donald Hudgins, appearing in person

Vanessa Glasser, for the defendant (respondent)

Heard:
December 14, 2011

On appeal from the order of Justice Corrick of the Superior
          Court of Justice dated June 9, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the motion judge that the statement of claim is
    deficient.  It does not plead facts to support the legal claims made.  We see
    no basis to interfere with the motion judges order striking the statement of
    claim without leave to amend.

[2]

Costs to the respondent are fixed in the amount of $2,000, inclusive of
    disbursements and applicable taxes.


CITATION:
Hudgins v. Peel (Police Services Board), 2011
          ONCA 763

DATE: 20111202

DOCKET: C53828

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Epstein JJ.A.

BETWEEN

William Donald Hudgins

Plaintiff (Appellant)

and

Regional
          Municipality of Peel Police Services Board, Premier Fitness, Boston Pizza,
          Moxies Classic Grill, Crocodile Rock, Ozanic Aesthetic and Family
          Dentistry, City of Mississauga, Rockwood Dental, Family Care Dental,
          Dr. Natalie Novak, Mavis Burnhamthorpe Clinic, Walter Galec,
          Pakmail, Scruffys Irish Pub, Moxies Classic Grill, Alice
          Fazoolis Italian Grill, City of Brampton, Jack Astors Bar & Grill, Moxies
          Classic Grill, Dixie Outlet Mall, Square One Shopping Centre, Cadillac
          Fairview Corporation, Turtle Jacks Muskoka Grill, My Apartment, and Mad Hatter
          Olde British Pub

Defendants (Respondents)

William Hudgins, in person

Rafal Szymanski, for the
          respondents Peel Police Services Board, Cadillac Fairview Corporation, Dixie
          Outlet Mall, Jack Astors Bar & Grill and Alice Fazoolis Italian Grill

Claudia Scherman, for the
          respondents Mavis Burnhamthorpe Clinic, Rockwood Dental, Family Care Dental,
          Dr. Natalie Novak and Ozanic And Aesthetic Family Dentistry

Avi Cole, for the respondent City of Mississauga

Kammy K. Digambar, for the respondent Moxies Classic Grill

Walter Galec, in person

L. Fasciano, for the respondents OMERS Realty management
          Corporation, 156 Square One Limited and OMERS Realty Management Corporation
          named as Square One Shopping Centre

Jennifer Vieira, for Scruffys Irish Pub, Crocodile Rock and
          Mad Hatter Olde British Pub

Ronald Allan, for the respondent Turtle jacks Muskoka Grill

Andrew Lee, for the respondent Pakmail

Megan Burkett, for the respondent Boston Pizza

Rob Toor, for the respondent Moxies Classic Grill

Estefania Navascues, for the respondent Corporation of the
          City of Brampton

Heard & released orally:
November 25,
          2011

On appeal from the order of Justice Gordon Lemon of the
          Superior Court of Justice dated May 31, 2011.

ENDORSEMENT

[1]

The motion judge did not err in setting aside the noting in default.
    The respondents had clearly indicated to the appellant that they intended to
    move to strike the amended statement of claim and, given the unusually large
    number of defendants, it took time to arrange that motion.

[2]

The motion judge carefully reviewed and analysed the appellants amended
    statement of claim.  The motion judge concluded that it failed to accord with the
    rules of pleading, it failed to plead essential elements of the various causes
    of action alleged and that it was plain and obvious that the appellants action
    could not possibly succeed.  The motion judge also concluded that the appellant
    should not be given another chance to amend the statement of claim.

[3]

We see no error in the motion judges reasons.  The appeal is dismissed.
    In the circumstances, we award costs to the respondents represented by Mr.
    Szymanski in the amount of $2,500 inclusive of disbursements and HST.

K. Feldman J.A.

Robert J. Sharpe J.A.

G.J.
    Epstein J.A.


CITATION:
Jeffery v. London Life
          Insurance Company, 2011 ONCA 772

DATE: 20111208

DOCKET: C52858

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Blair and LaForme JJ.A.

BETWEEN:

James Jeffery and  DAlton S. Rudd

Plaintiffs/Respondents

and

London Life Insurance Company and The Great-West Life
          Assurance Company

Defendants/Appellants

Proceeding
          Under the
Class Proceedings Act, 1992
, S.O. 1992, c. 6

AND BETWEEN:

John
          Douglas McKittrick

Plaintiff/Respondent

and

The
          Great-West Life Assurance Company and Great-West Lifeco Inc.

Defendants/Respondents

Proceeding
          Under the
Class Proceedings Act, 1992
, S.O. 1992, c. 6

Sheila R. Block, Wendy M. Matheson and Crawford G. Smith, for
          the appellants

Paul J. Bates, David B. Williams, Jonathan J.
          Foreman, and Robert L. Gain, for the respondents

Heard:  June 6, 7 and 8, 2011

On appeal from the judgment of Justice Johanne N. Morissette
          dated October 1, 2010, with reasons reported at 2010 ONSC 4938, 74 B.L.R. (4th)
          83.

COSTS ENDORSEMENT

[1]

The appellants achieved substantial but not total success.  They do not
    seek costs.  In the circumstances, we do not consider that the respondents are
    entitled to costs.  As a
    result, there shall be no order as to costs.

OConnor A.C.J.O.

R.A. Blair J.A.

H.S.
    LaForme J.A.


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45. (7)
The
    court may make an order,

(a)       excluding a particular media representative from all
    or part of a hearing;

(b)       excluding all media representatives from all or a
    part of a hearing; or

(c)       prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the
    media representative or representatives or the publication of the report, as
    the case may be, would cause emotional harm to a child who is a witness at or a
    participant in the hearing or is the subject of the proceeding.

45. (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 childs parent or foster parent or a
    member of the childs family.

45. (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.

CITATION:
K.S. v.  Childrens Aid
          Society of the Regional Municipality of Waterloo, 2011 ONCA 781

DATE: 20111212

DOCKET: C54238

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

K.S.

Respondent/Applicant (Appellant)

and

The CAS of the Regional Municipality of Waterloo

Applicant (Respondent in appeal)

and

C.B.

Respondent

and

Childrens
          Lawyer, Henry Shields

Respondent

Application
          under the
Child and Family Services Act
s. 64(2)(b), s. 64(4)(b) and
          the
Family Law Rules
, Rule 8

K.S.,
          appearing in person

Danika Brown, for the CAS of the Regional Municipality of
          Waterloo

Shelley McIntyre and Henry Shields, for the Childrens Lawyer

No one appearing for C.B.

Heard:
December 12, 2011

On appeal from the order of Justice D.J. Taliano of the
          Superior Court of Justice dated August 4, 2011.

APPEAL BOOK ENDORSEMENT

[1]

There was no procedural unfairness in respect of the Societys
    motion for summary judgment.  K.S. had adequate notice.

[2]

We see no error in the appeal judges order granting summary judgment.

[3]

The proposed fresh evidence would not affect our conclusion.

[4]

The appeal is dismissed.


CITATION:
Kusnierz v. Economical
          Mutual Insurance Company, 2011 ONCA 823

DATE: 20111223

DOCKET: C52946

COURT OF APPEAL FOR ONTARIO

MacPherson and LaForme JJ.A. and Hackland R.S.J. (
ad hoc
)

BETWEEN

Robert Kusnierz

Plaintiff (Appellant)

and

The Economical Mutual Insurance Company

Defendant (Respondent)

Paul J. Pape, David S. Steinberg and Shantona Chaudhury, for
          the appellant

Lee Samis and Lisa Armstrong, for the respondent

James L. Vigmond and Brian M. Cameron, for the intervener
          Ontario Trial Lawyers Association

Alan L.W. DSilva, Mark Walli and Vanessa Voakes, for the
          intervener Insurance Bureau of Canada

Heard: November 16, 2011

On appeal from the judgment of Justice Peter Lauwers of the
          Superior Court of Justice dated October 19, 2010, with reasons reported at
          2010 ONSC 5749.

MacPherson J.A.:

A.
INTRODUCTION

[1]

The appellant Robert Kusnierz was involved in a serious single vehicle
    accident ten years ago.  He suffered numerous physical and psychological
    injuries as a result of the accident, including the loss of his left leg below
    the knee and clinical depression.

[2]

Mr. Kusnierz was insured by the respondent insurance company.  He sought
    accident benefits under the
Statutory Accident Benefits Schedule  Accidents
    on or after November 1, 1996
, O. Reg 403/96 (
SABS
).  The
    respondent agreed that the appellant was entitled to some benefits.  However,
    the parties disagreed on the classification of the appellants injuries and on
    the quantum of benefits flowing therefrom.

[3]

The core of the dispute is this: if the appellant establishes
    catastrophic impairment, he is entitled to enhanced medical and
    rehabilitation benefits up to $1 million; otherwise, he is entitled to a
    maximum of $100,000.

[4]

The trial judge interpreted the relevant
SABS
provisions and
    concluded that the appellant could not establish the legal threshold of
    catastrophic impairment.  He dismissed the appellants action.

[5]

The appellant appeals from this judgment.

B.
FACTS

(1)
The parties and events

[6]

On December 24, 2001, Mr. Kusnierz, who was 29 years old, was a
    passenger in a car that veered off the road and rolled over several times.  His
    left leg was badly injured and had to be amputated below the knee.

[7]

The loss of part of his leg continues to be traumatic for Mr. Kusnierz,
    both physically and psychologically.  Since losing his leg, he has suffered
    ongoing deterioration of his stump, which has impeded his use of prostheses.
    He has had ten different prostheses over the years.  Still, he is unable to
    wear a prosthesis half of the time due to poor fit and pain that he describes
    as unbearable.  Even with a prosthesis, he has trouble walking; he walks well
    only on level surfaces.

[8]

On days that Mr. Kusnierz cannot attach the prosthesis  due to
    recurring cyst formation, swelling of the stump, and resulting pain  he stays
    indoors and uses a walker or a wheelchair.

[9]

Mr. Kusnierz suffered other physical problems as a result of the
    accident, including sore shoulders, pain in his neck and lower back, headaches,
    visual disturbances, numb fingers, and soreness in his hips, knees and right
    ankle.

[10]

In addition to physical impairments, the accident has also left Mr.
    Kusnierz with significant ongoing psychological impairments.  He had no history
    of psychiatric problems before the accident, and the connection between his
    physical and psychological impairments is not disputed.  Ever since the
    accident, Mr. Kusnierz has withdrawn from other people emotionally and
    socially.  According to the Designated Assessment Centre team that assessed
    him, Mr. Kusnierzs psychological symptoms are severe and he likely meets the
    DSM-IV diagnostic criteria for both a major chronic depressive disorder and, to
    a lesser degree, post-traumatic stress disorder.

[11]

Finally, as a result of his disabilities, Mr. Kusnierz could not drive
    tractor trailers and lost his job.  Today, he lives with his wife whom he
    married in 2009.  He owns a trailer park/marina in St. William, a town near
    Port Dover, and is able to do some work on site.

(2)
The Agreed
    Statement of Facts and Issues

[12]

A more comprehensive summary of the facts, including a description of
    the extensive reports prepared by a large number of medical professionals, is
    not required because at the trial the parties filed an Agreed Statement of
    Facts and Issues, which provided:

1.         Kusnierz is a person entitled to SABS
  (Ontario  Regulation 403/96) benefits from Economical as a result of an accident which occurred on, or about, December 24, 2001.

2.         Kusnierz has applied to be considered as
    a person who has sustained a catastrophic impairment, as that term is
    used under the SABS.

3.         Kusnierz has been assessed on behalf of
    both parties in order to determine whether or not he has sustained a  catastrophic
    impairment.

4.         The assessors and the parties agree
    Kusnierz does not meet the definition of catastrophic impairment  pursuant
    to section 2(1.1) (a), (b), (c), (d), (e), or (g) of  the SABS and
    therefore that Kusnierz could only             possibly be considered to have
    met the definition of catastrophic impairment under clause (f) of    subsection
    (1.1) of section 2 of the SABS.

5.         The parties have identified two issues for
    determination by the Court:

A.       Whether
    it is permissible to assign percentage ratings in respect of
    Kusnierzs psychological impairments under clause 2(1.1)(g) of the SABS and
    combine them with percentage ratings in respect of Kusnierzs physical
    impairments under clause 2(1.1)(f) of the SABS, for the purposes of determining
    whether Kusnierz is catastrophically impaired pursuant to the SABS and the 4
th
Edition of the AMAs Guide to the Evaluation of Permanent Impairment?

It
    is conceded by Economical that if Kusnierzs physical and psychological
    impairments are combined he will meet the definition of catastrophic
    impairment.

B.        Secondly,
    if the combining of physical and psychological impairment ratings is not
    proper, has Kusnierz nevertheless sustained a catastrophic impairment on the
    basis of 2(1.1)(f) of the SABS alone?

6.         This
    agreement, the reports of assessors and experts related to catastrophic impairment
    and attendant care, as listed in the Joint Document Brief, and the American
    Medical Associations
Guides to the Evaluation of Permanent Impairment
,
    4th edition, 1993 constitute the entire record of these proceedings,    without
    restriction on the ability of the parties to call the plaintiff and the authors
    of any of these reports as witnesses to also give viva voce evidence.

(3)
The legislation

[13]

The relevant legislation in this case is s. 2 of the
SABS
, which
    provides:

2.
(1)
In this
    Regulation,

. . .

impairment means a loss or abnormality of a
    psychological, physiological or anatomical structure or function;

(1.1)

For the purposes of this Regulation, a
    catastrophic impairment caused by an accident that occurs before October 1,
    2003 is,

(a) paraplegia or quadriplegia;

(b) the amputation or other impairment causing the
    total and permanent loss of use of both arms;

(c) the amputation or other impairment causing the
    total and permanent loss of use of both an arm and a leg;

(d) the total loss of vision in both eyes;

(e) brain impairment that, in respect of an
    accident, results in,

(i) a score of 9 or less on the Glasgow Coma
    Scale, as published in Jennett, B. and Teasdale, G.,
Management of Head
    Injuries
, Contemporary Neurology Series, Volume 20, F.A. Davis Company,
    Philadelphia, 1981, according to a test administered within a reasonable period
    of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe
    disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond,
    M.,
Assessment of Outcome After Severe Brain Damage
, Lancet i:480, 1975,
    according to a test administered more than six months after the accident by a
    person trained for that purpose;

(f) subject to subsections (2) and (3), an
    impairment or combination of impairments that, in accordance with the American
    Medical Associations
Guides to the Evaluation of Permanent Impairment
,
    4th edition, 1993, results in 55 per cent or more impairment of the whole
    person; or

(g) subject to subsections (2) and (3), an
    impairment that, in accordance with the American Medical Associations
Guides
    to the Evaluation of Permanent Impairment
, 4th edition, 1993, results in a
    class 4 impairment (marked impairment) or class 5 impairment (extreme
    impairment) due to mental or behavioural disorder.

. . .

(3)
For the
    purpose of clauses (1.1) (f) and (g) and (1.2) (f) and (g), an impairment that
    is sustained by an insured person but is not listed in the American Medical
    Associations
Guides to the Evaluation of Permanent Impairment
, 4th
    edition, 1993 shall be deemed to be the impairment that is listed in that
    document and that is most analogous to the impairment sustained by the insured
    person.

(4)
The trial judgment

[14]

The trial judge delivered comprehensive, well-organized and clear
    reasons for judgment.

[15]

Early in his reasons, the trial judge noted that the essence of the trial
    was an exercise in statutory interpretation, essentially confirming the
    underlying purpose of the parties Agreed Statement of Facts and Issues.
    Concerning Mr. Kusnierz, the trial judge stated:

Mr. Kusnierz was a credible and honest witness who
    did not embellish his evidence.  He has suffered much and continues to suffer
    from the results of his injuries.  He deserves the sympathy of the court.

[16]

The trial judge then turned to the two legal issues set out in the
    Agreed Statement of Facts and Issues.

[17]

On the first issue, he concluded that it was not permissible to combine cls.
    2(1.1)(f) and 2(1.1)(g) of the
SABS
in determining whether a person was
    catastrophically impaired.

[18]

With cl. 2(1.1)(g) of the
SABS
off the table, the trial judge
    turned to an assessment of Mr. Kusnierz under cl. 2(1.1)(f) standing alone.  He
    concluded that Mr. Kusnierz had not established the whole person impairment
    (WPI) of 55 per cent required by this provision.

[19]

The appellant appeals from the trial judgment.  He contends that the
    trial judge erred in his answers to both of the questions posed in the Agreed
    Statement of Facts and Issues.

[20]

By order of OConnor A.C.J.O. dated September 9, 2011, the Ontario Trial
    Lawyers Association and the Insurance Bureau of Canada were granted leave to
    intervene in this appeal.  The Trial Lawyers Association made submissions in
    support of the appellants position.  The Insurance Bureau made submissions in
    support of the respondents position.

C.
ISSUES

[21]

The issues are:

(1)       Did the trial judge err by concluding that the
SABS
do not permit an assessor to assign a whole body impairment
    percentage value to Chapter 14 mental and behavioural impairments in order to determine
    whether they, in combination with physical impairments, result in a 55 per cent
    whole person impairment constituting a catastrophic impairment under cl. 2(1.1)(f)?

(2)      If the answer to Question (1) is No, then
    did the trial judge err by concluding that Mr. Kusnierz physical injuries did
    not result in whole person impairment of 55 per cent, and therefore did not
    constitute a catastrophic impairment under cl. 2(1.1)(f) of the
SABS
?

D.
ANALYSIS

(1)
Can mental and behavioural
    impairments be assessed under cl. 2(1.1)(f)
?

[22]

The trial judge concluded that it was not permissible to consider mental
    and behavioural impairments under cl. 2(1.1)(f) of the
SABS
.  He
    summarized his conclusion in this fashion:

I find
    that it is not permissible under the SABS to assign percentage values to mental
    and behavioural disorders under Chapter 14 of the Guides (which is referred to
    in clause 2(1.1)(g) of the SABS), and then combine them with the percentage
    values derived from impairments assessed under the other chapters of the Guides
    (referred to in clause 2(1.1)(f) of the SABS) in determining whether an
    individual meets the catastrophic impairment threshold of 55 per cent or more
    impairment of the whole person prescribed by clause 2(1.1)(f) of the SABS.

I reach this conclusion for the following reasons,
    in a nutshell:

(i)        The Guides deliberately do not
    permit the mental and behavioural disorders in Chapter 14 to be assessed in
    percent terms and combined with the percentage values derived from impairments
    assessed under the other chapters of the Guides for the purpose of determining
    whole person impairment;

(ii)       The structure of the SABS reinforces
    the bright line demarcation between mental and behavioural disorders referred
    to in Chapter 14 of the AMA Guides  specifically referred to in clause
    2(1.1)(g) of the SABS  from the impairments assessed under the other chapters
    of the Guides which are referred to in clause 2(1.1)(f) of the SABS; and

(iii)     This interpretation is consistent
    with the purpose of the specific provisions of Bill 59 and the SABS that this
    issue engages.

[23]

I begin by noting, parenthetically, that the Guides referred to by the
    trial judge in the above summary are the American Medical Associations
Guides
    to the Evaluation of Permanent Impairment
, 4th ed. (Chicago: American
    Medical Association, 1993), which are explicitly designated as the frame of
    reference for the impairments described in cls. 2(1.1)(f) and (g) of the
SABS
.

[24]

With respect, I do not agree with the trial judges conclusion and his
    reasons in support of it.  I prefer the opposite conclusion and the reasons of
    Spiegel J. in
Desbiens v. Mordini
, [2004] O.J. No. 4735 (S.C.) and J.R.
    MacKinnon J. in
Arts (Litigation Guardian of) v. State Farm Insurance Co.
(2001), 91 O.R. (3d) 394 (S.C.), leave to appeal denied, [2008] O.J. No. 5740
    (S.C.).  The language of the
SABS
, the purpose of the
Guides
, the
Guides
 references to combining physical and psychological impairments,
    and the goals of the
SABS
lead me to conclude that the combination of
    physical and psychological impairments is appropriate under cl. 2(1.1)(f).

[25]

First, in my view a proper interpretation of the words of cl. 2(1.1)(f)
    of the
SABS
is consistent with the appellants interpretation.  On this
    point, I can do no better than set out, and expressly adopt, Spiegel J.s
    analysis in
Desbiens
:

While Bill 59 allows only those who have suffered a
    catastrophic impairment to recover health care expenses in my view, the text of
    the Regulation
[1]
itself indicates that the drafters clearly intended the definition of
    "catastrophic impairment" to be inclusive rather than restrictive.

Firstly, as has been noted, the definition of
    "impairment" as meaning "a loss or abnormality of a
    psychological, physiological or anatomical structure or function" is
    extremely broad. Indeed it is difficult to conceive of a more inclusive definition.

Secondly, clause (f) ensures that persons who do
    not suffer any of the specific injuries or conditions described in the other
    clauses of ss. 5(1)
[2]
,
    but nevertheless have an impairment, or a combination of impairments, that is
    so severe that they are among those with the greatest need for health care are
    able to recover the expenses of that health care.  In effect the
    legislature, with clause (f), included a catch-all provision for the benefit of
    those who were likely in the greatest need of health care.

Thirdly, in order to ensure that no impairments
    were overlooked in determining whether the requirements of clause (f) and (g)
    were met, the analogous impairment provision, ss. 5(3)
[3]
was included.  This provision comes into play where an impairment is
    sustained that is not listed in the Guides.

Fourthly, there is nothing in the text of the
    Regulation that suggests that a combination of physiological and psychological
    impairments is not permitted. Indeed clause (f) permits
any
combination
    of impairments, both physical and psychological. The only requirement is that
    these impairments must result in a 55% WPI "in accordance with" the
    Guides. While the definition in clause (g) does not include mild or moderate
    psychological impairments there is nothing in the Regulation that prohibits
    such impairments from being considered under clause (f). If the intention were
    to exclude psychological impairments from clause (f), the insertion of the word
    physiological before the word impairment[s] would easily have achieved that
    purpose. [Emphasis in original.]

[26]

The trial judge noted that the
SABS
legislator could have, but
    did not, expressly provide for the combination of physical and psychiatric
    injuries.  With respect, the opposite is also true.  The legislator could have,
    but did not, expressly forbid the combination of physical and psychiatric
    injuries.  Without qualification either way, the plain language of cl.
    2(1.1)(f) seems to suggest that combination of both kinds of impairment is
    possible.

[27]

Second, the purpose of the
Guides
supports combination.

In
    my view the trial judge erred by concluding that combining physical and
    psychiatric impairments would contradict the express purpose of the Guides,
    which is to provide a system for evaluating impairments that is objective and
    standardized.  With respect, this ignores the
Guides
parallel aim of
    assessing the total effect of a persons impairments on his or her everyday
    activities.  An objective, standardized system of assessment is only useful to
    the extent that it can reflect persons actual levels of impairment.  To
    disregard the mental and behavioural consequences of a persons injuries
    because they are too hard to measure would defeat the purpose of the
Guides
.
    This is reflected by the fact that the
Guides
, at p. 301, after
    cautioning against quantifying Chapter 14 impairments in percentage terms in
    ordinary cases, go on to allow quantification where necessary:

Physicians, of course, must often make judgments
    based more on clinical impressions than on accurate, objective, analytic
    empiric evidence.  In those circumstances where it is essential to make an
    estimate, the ordinal or numeric scale might be of some general use.

[28]

Third, the
Guides
describe a number of situations where an
    assessment of a persons physical impairment should take into account Chapter
    14 mental and behavioural impairments:

·

At p. 230 (Facial Disfigurement): We recommend that total
    disfigurement of the face after treatment be deemed a 15% to 35% impairment of
    the whole person.
For the assessment of impairment related to mental and
    behavioral aspects of disfigurement, the reader may refer to the chapter on
    mental and behavioral disorders
[Chapter 14].

·

At p. 275 (Mammary Glands): A female patient of childbearing
    age with absence of the breasts, a patient with galactorrhea sufficient to
    require the use of absorbent pads, and a male patient with painful gynecomastia
    that interferes with the performance of daily activities would each have a 0%
    to 5% impairment of the whole person.
If there were a coexisting
    psychiatric impairment, the whole-person impairment would be greater
.

·

At p. 279 (Disfigurement): With disfigurement there is usually
    no loss of body function and little or no effect on the activities of daily
    living.  Nevertheless, disfigurement may impair by causing social rejection or
    an unfavorable self-image with self-imposed isolation, life-style alteration,
    or other behavioural changes.
If impairment due to disfigurement does
    exist, it is usually manifested by a change in behaviour, such as withdrawal
    from social contacts, in which case it would be evaluated in accordance with
    the criteria with the Guides chapter on mental and behavioral conditions.

·

At p. 284 (Examples of Class 2 Skin Impairments): In example 5, a
    patient is assessed as having a 20% impairment due to chemically induced nail
    dystrophy, which is to be
combined
using the Combined Values Chart (p.
    322) with an appropriate value for the paresthesia (see the part on the hand in
Guides
chapter on the musculoskeletal system) to estimate the
    whole-person impairment.
A mental and behavioral impairment (Chapter 14, p.
    291) might further increase the estimate
.

·

At p. 285 (Examples of Class 3 Skin Impairments): In example 1, a
    patient is assessed as having a 30% impairment due to the skin disorder,
which
    is to be increased by an amount that is proportional to the estimated mental
    and behavioural impairment
(see Chapter 14).  [Emphasis added.]

[29]

In his judgment, the trial judge noted the two skin examples, but wrote
    that [t]he principle of interpretation known as implied exclusion, or, in
    Latin,
expressio unius est exclusion alterius
, has obvious and
    reasonable application (footnote omitted).  With respect, this application of
    the
expressio unius
principle is incorrect.

[30]

In my view, the
Guides
examples are illustrative, rather than
    exhaustive.  In at least five places, the
Guides
recommend that
    physicians refer to Chapter 14 in assessing the total impairment of persons
    suffering from both physical and behavioural/mental impairments.  These
    recommendations reflect the principle that a total impairment assessment must
    take both physical and psychiatric impairments into account.  There is nothing
    in the text of the
Guides
to suggest that this principle should be
    limited to persons with mammary gland or disfigurement problems.  Accordingly,
    it seems to me that combining physical and psychiatric impairments can be done
    in accordance with the
Guides
.

[31]

Fourth, this combination produces results that are consistent with the
    purposes of the
SABS
.  The trial judge noted that the
SABS
were designed
    to make catastrophic impairments exceptional, and that allowing combinations
    of psychiatric and physical impairments would expand the number of persons
    deemed to be catastrophically impaired.  With respect, interpreting 2(1.1)(f)
    to allow assessment of physical impairments in combination with psychiatric
    impairments is not inconsistent with ensuring that catastrophic impairments
    remain rare.  At oral argument, the respondent conceded that there are only a
    very few cases where there are permanent physical impairments and permanent
    psychiatric impairments that are not catastrophic if assessed separately, but
    are catastrophic if assessed together.  Accordingly, the class of persons
    entitled to catastrophic impairment benefits will remain small under either
    interpretation.

[32]

Finally, allowing combination promotes fairness and the objectives of
    the statutory scheme.  The trial judge acknowledged that interpreting the
SABS
and the
Guides
to prevent mental and behavioural impairments from being
    considered under cl. 2(1.1)(f) would leave a gap in the definition of
    catastrophic impairment. I agree that it seems unfair to deny to persons with
    combined physical and psychiatric impairments the enhanced benefits that are
    available to persons with similarly extensive impairments that fall entirely
    into one category or the other.

[33]

However, while the trial judge concluded that resolving the unfairness
    would require an inappropriate deviation from the clear intentions of the
    legislature, I do not agree that the legislator chose to forbid the
    combination of physical and psychiatric impairments.  Respectfully, I do not
    read the
Guides
, or the
SABS
, as articulating a policy position
    against combination.  Although the
Guides
do warn against assigning
    percentages to non-neurological psychiatric impairments, there are, as
    discussed above, a number of indications that combination may be permissible
    under certain circumstances.

[34]

For these reasons, I would conclude that the trial judge erred in his
    answer to the question posed in the first issue.
[4]

(2)
The threshold under cl. 2(1.1)(f)
    standing alone

[35]

In light of the conclusion on the first issue, it is not necessary,
    strictly speaking, to address the second issue.  However, for the sake of
    completeness, I would record that I can see no palpable and overriding error
    (the appellant concedes that this is the proper test) in the trial judges
    analysis and calculation of the gait derangement and skin impairment components
    of the appellants injuries.  Accordingly, I would not allow the appeal on this
    ground.

E.
DISPOSITION

[36]

I would allow the appeal, set aside the judgment of the trial judge, declare
    that the appellant meets the definition of catastrophic impairment under cl.
    2(1.1)(f) of the
SABS
and, accordingly, is entitled to enhanced medical
    and rehabilitation benefits thereunder, and direct the respondent to pay such
    benefits to the appellant.

[37]

The appellant is entitled to his costs of the appeal.  If the parties
    cannot agree on costs, the appellant may make his submissions within 21 days of
    the release of this decision, and the respondent may make its submissions
    within 14 days thereafter.

RELEASED:  December 23, 2011 (J.C.M.)

J.C. MacPherson J.A.

I agree H.S. LaForme J.A.

I agree Hackland J. (
ad hoc
)

[1]
In
Desbiens
, Spiegel J. was interpreting the definition of catastrophic
    impairment contained in s. 5(1) of the regulation
Court Proceedings for
    Automobile Accidents that Occur on or after November 1, 1996
, O.Reg.
    461/96, which is substantially identical to
SABS
cl. 2(1.1). SABS cl.
    2(1.1)(f) does differ slightly in referring to an impairment or combination of
    impairments while 5(1)(f) refers to any impairment or combination of
    impairments. The two regulations were made at the same time.

[2]
Compare
SABS
s. 2(1.1).

[3]
Compare
SABS
s. 2(3).

[4]
In reaching this conclusion, I have not referred to the fresh evidence that the
    appellant sought to introduce, namely, evidence of the legislative purpose of
    the definition of catastrophic impairment in the
SABS
in issue in this
    appeal.  The proposed fresh evidence consists of the transcripts of the
    hearings of the Standing Committee Report, and transcripts of the Legislative
    Assembly debates on Bill 59.  I would not admit the fresh evidence.  It does
    not meet three of the four criteria set out in
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759.  The evidence could have been adduced at trial, it is not
    relevant, and it could not reasonably be expected to have affected the result.


CITATION:
Langenecker v. Sauvé, 2011
          ONCA 803

DATE: 20111219

DOCKET: C53425

COURT OF APPEAL FOR ONTARIO

Doherty, Armstrong and Hoy JJ.A.

BETWEEN

Peter Langenecker, Joanne Langenecker, Elisabeth
          Langenecker, and Franz Langenecker

Plaintiffs (Appellants)

and

Dr. S. Sauvé
,
Dr. P. Luke
, Dr. White,
          Nurse K. Kiegel R.N., University Hospital and London Health Association

Defendants (Respondents)

Alan L. Rachlin, for the appellants

Julie Parla and Gillian Kerr, for the respondents Sauvé and Luke

Heard:  December 1, 2011

On appeal from the order of Justice
          John F. McGarry of the Superior Court of Justice dated February 16, 2011,
          dismissing the action for delay, with reasons reported at 2011 ONSC 867.

Doherty J.A.:

I

[1]

The appellant, Peter Langenecker, was seriously injured in a motorcycle
    accident in June 1994.  He was treated at the University Hospital in London,
    Ontario by Dr. Sauvé, Dr. Luke (the respondents) and others.  In June 1995, he
    sued the respondents and others alleging that their negligence had caused him
    serious and permanent injuries and disabilities.  Some 15 years later, in
    September 2010, the respondents brought a motion under Rule 24.01 seeking an
    order dismissing the action for delay.  By the time the motion was brought, the
    respondents were the only remaining defendants in the action.  The motion judge
    granted the motion and dismissed the action.  The appellants appeal.

[2]

I would dismiss the appeal.  The motion judge correctly stated the test
    to be applied on a motion to dismiss for delay.  The chronology of the relevant
    events was not in dispute.  The motion judge considered the explanations
    offered by counsel for the appellants for the various delays and he considered
    the respondents prejudice claim.  The motion judge decided that the delay was
    inexcusable.  That conclusion was reasonably open to him.  The motion judge
    also considered and rejected the submission that the nature and reliability of
    the evidence still available (medical and hospital records), and the narrow factual
    issue on which liability would turn, rebutted the presumption of prejudice to
    the defendants flowing from the long delay.  The motion judge rejected this
    submission because he found there were potential sources of evidence other than
    the medical records that were lost to the defendants through the passage of
    time.  The motion judges finding that the appellants had not rebutted the
    presumption of prejudice was not unreasonable.

II

[3]

An order dismissing an action for delay is obviously a severe remedy.  The
    plaintiff is denied an adjudication on the merits of his or her claim.  Equally
    obviously, however, an order dismissing an action for delay is sometimes the
    only order that can adequately protect the integrity of the civil justice
    process and prevent an adjudication on the merits that is unfair to a
    defendant.

[4]

The test under Rule 24.01 for dismissal of an action for delay is well
    established and is taken from English case law:  see e.g.
Saikaley v.
    Commonwealth Insurance Co. et al.
(1978), 21 O.R. (2d) 629 (H.C.);
Armstrong
    v. McCall et al.

(2006), 213 O.A.C. 229;
De Marco v.
    Mascitelli
(2001), 14 C.P.C. (5th) 384 (Ont. S.C.);
Allen v. Sir Alfred
    McAlpine & Sons, Ltd
.
[1968] 1 All E.R. 543 at 556.

[5]

The language used to describe the appropriate test varies slightly in
    the authorities.  I prefer the language of Lord Diplock in
Allen
, at p.
    556, where he described the exercise of the power to dismiss for delay in these
    terms:

It should not in any event be exercised without
    giving the plaintiff an opportunity to remedy his default, unless the court is
    satisfied either that the default has been intentional and contumelious, or
    that the inexcusable delay for which the plaintiff or his lawyers have been
    responsible has been such as to give rise to a substantial risk that a fair
    trial of the issues in the litigation will not be possible at the earliest date
    at which, as a result of the delay, the action would come to trial if it were
    allowed to continue.

[6]

The first type of case described by Lord Diplock refers to those cases
    in which the delay is caused by the intentional conduct of the plaintiff or his
    counsel that demonstrates a disdain or disrespect for the court process.  In
    dismissing cases which fall within this category, the court effectively declares
    that a continuation of the action in the face of the plaintiffs conduct would
    constitute an abuse of the courts process.  These cases, thankfully rare,
    feature at least one, and usually serial violations of court orders.  This case
    does not fall into that category.

[7]

The second type of case that will justify an order dismissing for delay
    has three characteristics.  The delay must be inordinate, inexcusable and such
    that it gives rise to a substantial risk that a fair trial of the issues in the
    litigation will not be possible because of the delay:  see
De Marco,
at
    paras. 22, 26;
Armstrong
, at paras. 11-12.

[8]

The inordinance of the delay is measured simply by reference to the
    length of time from the commencement of the proceeding to the motion to
    dismiss.  Most litigation does not move at a quick pace.  Some litigation,
    because of the issues raised and/or the parties involved, will move even more
    slowly than the average case.  It is fair to say that many medical malpractice
    actions are among those cases that move slowly.  However, even accepting that
    litigation customarily moves at a somewhat stately pace and that this kind of
    litigation can move even more slowly than most, there can be no doubt that 15
    years from the commencement of the action to the motion to dismiss constitutes
    inordinate delay.

[9]

The requirement that the delay be inexcusable requires a determination
    of the reasons for the delay and an assessment of whether those reasons afford
    an adequate explanation for the delay.  As LaForme J. explained in
De Marco
,
    at para. 26, explanations that are reasonable and cogent or sensible and
    persuasive will excuse the delay at least to the extent that an order
    dismissing the action would be inappropriate.

[10]

In assessing the explanations offered, the court will consider not only
    the credibility of those explanations and the explanations offered for
    individual parts of the delay, but also the overall delay and the effect of the
    explanations considered as a whole.  For example, in this case, the appellants
    offered a sensible and persuasive explanation for part of the lengthy delay
    in completing the discovery process, but offered little by way of cogent
    explanation for the many other lengthy delays that occurred in the course of
    the 15 years since this action was commenced.

[11]

The third requirement is directed at the prejudice caused by the delay
    to the defences ability to put its case forward for adjudication on the
    merits.  Prejudice is inherent in long delays.  Memories fade and fail, witnesses
    become unavailable, and documents and other potential exhibits are lost.  The
    longer the delay, the stronger the inference of prejudice to the defence case
    flowing from that delay:
Tanguay v. Brouse
, 2010 ONCA 73, at para. 2.

[12]

In addition to the prejudice inherent in lengthy delays, a long delay
    can cause case-specific prejudice.  In this case, the respondents led evidence
    on the motion that their expert had died in June 2009 and that counsel for the
    respondents had been unable to find a replacement.  The respondents argued that
    their inability to obtain an expert was caused by the delay in the prosecution
    of the claim and resulted in prejudice to their defence.  Clearly, if the
    appellants delay left the respondents in a position where they could not
    obtain a medical opinion in a medical malpractice case, that delay would cause
    serious prejudice to the defence.  I will return to this submission below.

III

[13]

In his reasons, the motion judge, at para. 9, correctly set out the applicable
    legal principles.  He then reviewed briefly, but accurately, the chronology and
    explanations offered for the delay.  With respect to those explanations, the
    motion judge did not address each separately, but did say, at para. 16:

[T]he plaintiff has clearly failed to move the
    action forward in an appropriate manner and I agree with the defendants that
    there has been an inordinate delay which has not been caused by any
    extraordinary events but simply the usual hurdles that must be overcome in
    prosecuting an action.

[14]

I understand the motion judge to be indicating that none of the
    explanations offered convinced him that any difficulties in moving the case
    forward went beyond the usual hurdles encountered in the prosecution of a
    claim.  Those usual hurdles could not excuse a 15-year lapse between the initiation
    of the action and the motion to dismiss.  Put differently, the motion judge
    assessed the explanations offered as amounting to no more than a description of
    the usual problems encountered by litigants (e.g. prodding an expert to provide
    a report) and did not amount to reasonable and cogent explanations for the
    inordinate delay that had occurred in this case.

[15]

The motion judges conclusion that the delay was inexcusable is one
    part fact finding and one part judgment.  Both attract deference in this
    court.  The appellants have not demonstrated that the motion judge fell into
    any factual error.  Nor have they convinced me that he acted unreasonably in
    characterizing the delay in this case as inexcusable.  By reasonable, I mean an
    assessment of the relevant facts that falls within a range of possible,
    acceptable outcomes which are defensible in respect of the facts and law:
Dunsmuir
    v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[16]

Counsel for the appellants (who was not counsel prior to the appeal)
    made his most forceful submissions when addressing the question of prejudice.
    He argued that the ready inference of prejudice to the defence flowing from a
    lengthy delay was rebutted in this case because the relevant evidence was found
    almost entirely in the medical records which had been preserved.  He also made
    the point that the respondents had been examined for discovery many years ago and
    could refer to the discovery transcripts to refresh their memory.

[17]

In support of his submission, counsel observed that two experts, one for
    each side, had been able to give written opinions on the reasonableness of the
    doctors conduct based on the medical records.  Counsel submitted that it must
    follow that those records contain substantially the entire evidentiary story.

[18]

I do not agree that because an expert can offer an opinion based on the medical
    records that it must follow that those records contain the entire or even close
    to the entire evidentiary story.  The experts ability to offer an opinion
    based on the medical records says nothing about whether those records provide
    an accurate or complete basis upon which to assess the reasonableness of the
    respondent doctors conduct and the care they provided.

[19]

Before the motion judge, the respondents led evidence that the medical
    decisions under attack in the lawsuit were the product of ongoing discussions
    among various members of the critical care team.  This is the procedure
    normally followed in teaching hospitals such as the University Hospital in
    London.  According to the respondents evidence, these discussions would not
    necessarily be recorded in the hospital records and could have augmented or modified
    information available in those records.  The respondents argued before the
    motion judge that some of the individuals involved in these team discussions,
    including the doctor primarily responsible for the appellants care, had not
    been sued and, therefore, their recollections had not been memorialized in a
    discovery transcript.

[20]

The motion judge was persuaded that prejudice to the defence should be
    presumed from the lengthy delay.  He said, at para. 15:

In light of the type of evidence required to be led
    by the defendants, I am satisfied there is a fair presumption that their
    recollection, and those of their supporting witnesses would be severely
    impacted by the passage of some 16 years.

[21]

There was evidence to support this finding and it cannot be
    characterized as unreasonable.

[22]

On the question of prejudice, the motion judge ultimately concluded, at
    para. 16:

The plaintiff has failed to rebut the presumption of
    prejudice resulting from a delay of 16.5 years and the action is therefore
    dismissed.

[23]

I think this passage reflects the proper approach.  The lengthy delay
    itself generated a presumption (or perhaps more accurately a strong inference)
    of prejudice to the respondents ability to fully present their defence to the
    allegations.  The appellants attempted to rebut that inference by reference to
    the nature of the evidence available even after 15 years and to the fact that
    the respondents had been examined for discovery years earlier.  The motion
    judge found that the attempted rebuttal failed in the face of the respondents
    evidence as to the potential significance of testimony dependent upon witnesses
    abilities to recall statements and observations made by various persons jointly
    responsible for Mr. Langeneckers treatment during the ongoing team meetings
    held when he was in the hospital over sixteen years earlier.

[24]

Counsel for the appellants also argued that the motion judge erred in
    finding actual prejudice to the respondents flowing from the death of their
    expert witness and their inability to retain a new expert.  Counsel submits
    that the affidavit of the law clerk filed on behalf of the respondents did not
    contain any admissible evidence to support the inference of actual prejudice
    flowing from the death of the respondents expert.

[25]

The motion judge did not make any finding of actual prejudice based on
    the death of the expert and the purported inability to replace that expert.  I
    do not think he made a finding one way or the other on the validity of that
    claim.  It was not necessary for him to do so because he was satisfied that the
    presumption of prejudice flowing from the inordinate delay had not been
    rebutted and was sufficiently strong to give rise to a substantial risk that
    the respondents could not fairly present their case so long after the relevant
    events.  It is, therefore, unnecessary to decide whether the law clerks
    affidavit provided an adequate evidentiary basis for a finding of prejudice
    based on the death of the expert and the alleged inability to replace that
    expert.

IV

[26]

The motion judge applied the right test.  His fact finding and his
    assessment of those facts reveal no reversible error.  I would dismiss the
    appeal.  The respondents are entitled to their costs on the appeal, if
    demanded, in the amount of $10,300, inclusive of relevant taxes and
    disbursements.

RELEASED:
DD  DEC 19 2011

Doherty J.A.

I agree Armstrong J.A.

I agree Alexandra Hoy J.A.


CITATION:
McDonald v. Kwan, 2011 ONCA 789

DATE: 20111215

DOCKET: C53239

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Watt JJ.A.

BETWEEN

James
          McDonald, Dorothy June McDonald

and Judith McDonald
          Andrew

Plaintiffs (Respondents)

and

Hoi Ko Kwan
and Po Ping Lana Lai

Defendants (Appellant)

John M. Burnes, for the appellant

Jeffrey Wm. Strype, for the respondents

Heard:
December 7, 2011

On appeal from the judgment of
          Justice Eva Frank of the Superior Court of Justice, dated January 4, 2011, reasons
          reported at 2010 ONSC 5861.

ENDORSEMENT

[1]

The appellant appeals from the trial judges assessment of damages for
    future loss of income in a personal injury negligence action.  At the
    conclusion of oral argument, we dismissed the appeal for reasons to follow.
    These are those reasons.

[2]

Although the appellant raised various grounds of appeal in his factum
    concerning the damages awarded at trial for future loss of income, during oral
    argument his challenge of this award was narrowed to two main issues.

[3]

The appellant argued that the trial judge erred: (1) by failing to order
    disclosure of the settlement amounts received by the respondent on the
    compromise of litigation arising from two later motor vehicle accidents
    involving the respondent and; (2) by failing to deduct those settlement amounts
    from the gross damages awarded in this case for future income loss.

[4]

Next, the appellant maintained that the trial judge erred by failing to
    hold that the statutory trust and assignment pertaining to the respondents
    receipt of future collateral benefits, which accrues to the appellants benefit
    by reason of ss. 267.8(9) and (10) of the
Insurance Act
, R.S.O. 1990, c.
    I.8 (the Act), extends to future pension benefits paid to the respondent by
    his former employer or under the Canada Pension Plan.

[5]

We reject these arguments.

[6]

At trial, the parties agreed on the method by which the trial judge was
    to quantify the damages recoverable by the respondent from the appellant.
    Based on
Hicks v. Cooper
, [1973] O.J. No. 772 (C.A.), that method
    contemplated that the trial judge would globally assess the damages caused by
    all three motor vehicle accidents and then subtract the damages caused by the
    second and third accidents from the global assessment.  The parties also agreed
    that damages attributable to the second and third accidents would be quantified
    on the basis of a percentage of the total damages.

[7]

This overall approach to the assessment of damages ensured that the
    respondent would not realize any double recovery for the injuries at issue.
    Rather, he would recover only what was owed to him as a result of the
    appellants own negligence.

[8]

Three additional aspects of the damages award for income loss are
    noteworthy.

[9]

First, the trial judge held that the accident involving the appellant
    was the sole cause of the respondents past and future loss of income.  On her
    unchallenged factual findings, on a global assessment of the respondents
    losses, no loss of income could be attributed to either of the two subsequent
    accidents as the respondent was already permanently disabled from employment
    when the subsequent accidents occurred.

[10]

Second, the appellant is entitled to deduct 100% of the past collateral
    benefit payments received by the respondent from the income loss damages,
    without regard to any possible deductibility of those payments from the damages
    or settlement proceeds otherwise payable in the actions relating to the second
    and third accidents.  In other words, regardless of the deduction claims of the
    defendants in the other two actions, the appellant is to enjoy a full deduction
    for all past collateral benefit payments.  This is a significant benefit to the
    appellant.

[11]

Third, as we have said, by operation of ss. 267.8(9) and (10) of the
    Act, the appellant is also entitled to payment of all future collateral
    benefits payable to the respondent, including Canada Pension Plan payments and
    long-term disability benefits.

[12]

In our view, in all these circumstances, it is not open to the appellant
    to also seek to deduct, on the ground of double recovery, the settlement
    proceeds payable to the respondent in the actions relating to the second and
    third accidents from the damages awarded to the respondent at this trial for future
    income loss.  As the trial judge put it, the approach to the assessment of
    damages employed in this case ensured that the appellant was called upon to
    pay no more than what is owed to the [respondent] as a result of this
    [appellants] negligence.

[13]

This is also a full answer to the appellants complaint regarding
    non-disclosure of the details of the settlements pertaining to the second and
    third accidents.  Whatever may be said about the merits of the appellants disclosure
    requests before or at trial, the method ultimately used for the assessment of
    damages and the trial judges causation findings concerning the respondents
    income loss render such disclosure unnecessary and irrelevant.

[14]

Nor do we accept the appellants complaint concerning the trial judges
    ruling in respect of the respondents future pension benefits.  As we
    understood his argument, the appellant submits that he is entitled to an
    assignment of the pension benefits that may be payable to the respondent in the
    future by his former employer or under the Canada Pension Plan until the
    respondent reaches his 65th birthday, providing that the respondent elects to
    receive those pension benefits prior to turning 65 years of age.
[1]

[15]

The trust provisions of s. 267.8 of the Act make no mention of pension
    benefits.  The trial judge rejected this claim as speculative.  She was right
    to do so.  There is no suggestion that the respondent intends to pursue the
    early receipt of his pension benefits.  Should he elect to do so in the future
    by opting for early retirement, the appellant acknowledges that it will be open
    to him to seek to recover some of the payments at issue by resorting to
    arbitration under the arbitration provisions of the assignment agreements to be
    entered into by the parties in relation to s. 267.8 of the Act.

[16]

Accordingly, for the reasons given, the appeal was dismissed.  The
    respondent is entitled to his costs of the appeal, fixed in the amount of
    $20,000, inclusive of disbursements and all applicable taxes.

M.
    Rosenberg J.A.

E.A.
    Cronk J.A.

David
    Watt J.A.

[1]
This argument assumes that, as a matter of law, the respondents Canada Pension
    Plan benefits may be the subject of an assignment agreement in light of the
    statutory trust provisions of s. 267.8 of the Act.  It is unnecessary to
    address this issue for the purpose of this appeal and we decline to do so.


CITATION:
North Bay (City) v. Seguin, 2011 ONCA 767

DATE: 20111208

DOCKET: C53686

COURT OF APPEAL FOR ONTARIO

Doherty and Armstrong JJ.A. and Hoy J. (
Ad Hoc
)

BETWEEN

The Corporation of the City of North Bay

Applicant (Respondent)

and

Daniel Seguin

Respondent (Appellant)

William A. Sangster, for the appellant

Alan L. Rachlin, for the respondent

Heard and released orally:
November 30, 2011

On appeal from the order of Justice J. Wilcox of the Superior
          Court of Justice, dated April 8, 2011.

ENDORSEMENT

[1]

The appellant Daniel Seguin argues that the motions judge erred in his
    interpretation of the July 13, 2006 consent order of Justice Poupore
    prohibiting the appellant from maintaining any outside storage in the rear yard
    at 1135 Cassells Street, North Bay, which would exceed 75% lot coverage and as
    a result erred in finding the appellant breached that order.

[2]

The motions judge dismissed the appellants argument that lot coverage
    means the total area of the portion of the lot between the back of the house
    and the rear lot line, including the 36% of such area covered by a garage and
    four sheds and therefore not available for outside storage. The appellant
    submitted that only 64% of the total rear lot was available for outside storage
    and he could maintain outside storage on 100% of that 64% without breaching the
    75% restriction.

[3]

The motions judge concluded that the appellants interpretation would
    make a mockery of Poupore J.s order and render it ineffective to deal with the
    problems it intended to correct. It is clear from the record as a whole that
    the motions judge interpreted the order as restricting the appellant to using
    75% of the open areas of the lot as a whole for outside storage.  He noted the
    evidence that 100% of the open areas were used for outside storage and granted
    the requested declaration that the appellant was in breach of the order of
    Poupore J.

[4]

The order arose out of a violation of a zoning by-law prohibiting
    outside storage in a yard adjacent to a residential area. The motions judge
    properly considered the context within which the order was issued.  In our
    view, he was correct in interpreting Poupore J.s order in the manner he did.

[5]

In the result, the appeal is dismissed.

[6]

Costs are awarded to the respondent in the amount of $2,000, inclusive
    of disbursements and taxes.

Doherty J.A.

Armstrong J.A.

Alexandra Hoy J. ad hoc


CITATION:
Pintar Manufacturing
          Corp. v. Consolidated Wholesale Group Inc., 2011 ONCA 805

DATE: 20111219

DOCKET: C54100

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Epstein J.A. and Pardu J. (
ad hoc
)

BETWEEN

Pintar Manufacturing Corp.

Plaintiff (Respondent in Appeal)

and

Consolidated Wholesale Group Inc. and
Christopher
          Hinn also known as Chris Hinn

Defendant (Appellant)

Richard P. Quance, for the defendant (appellant)

Rebecca Gosevitz, for the plaintiff (respondent in appeal)

Heard and released orally:
December 8, 2011

On appeal from the judgment of Justice Conway of the Superior
          Court of Justice dated July 26, 2011.

ENDORSEMENT

[1]

The motion judge correctly concluded that there was no issue requiring a
    trial.  The record on the motion enabled the motion judge to appreciate fully
    the issues and the evidence.  A trial was not necessary.

[2]

There was ample evidence to support the motion judges conclusion that
    the appellants email at 5:31 p.m. on July 30, 2009 was intended to, and did
    constitute a binding guarantee.  That email read as follows:

I will personally guarantee the debt to Pintar in
    full.

Signed Chris

[3]

In coming to this conclusion, it was open to the motion judge to
    consider the exchange of emails that preceded the 5:31 p.m. email as part of
    the factual matrix within which that email was sent.

[4]

Initially, the appellant offered to provide a guarantee.  Later in the
    exchange, the respondent requested a guarantee.  The appellant responded
    providing the email referred to above.

[5]

When the appellant sent the email at 5:31 p.m., all of the elements
    necessary to create a binding guarantee were present.  The amount of the debt
    was clear, the debt had crystallized, the appellant knew the terms of the
    contract giving rise to the debt, and the appellant provided an email
    signature.  The consideration for the guarantee was forbearance in collecting
    the debt.

[6]

The appeal is dismissed.

[7]

Costs to the respondent, fixed at $6,000, inclusive of disbursements and
    all applicable taxes are to be paid within 30 days.

D. OConnor A.C.J.O.

G.J.
    Epstein J.A.

G. Pardu J. (
ad hoc
)


CITATION:
R. v. Bayat, 2011 ONCA 778

DATE:  20111213

DOCKET: C52990

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN:

Her Majesty The Queen

Appellant

and

Shakib Bayat

Respondent

Allison Dellandrea, for the appellant

Robert Sheppard, for the respondent

Heard: November 25, 2011

On appeal from the order of Justice Bruce G. Thomas of the Superior
          Court of Justice dated November 3, 2010, staying the proceedings on the basis
          of entrapment.

Rosenberg J.A.:

[1]

This Crown appeal concerns the use of techniques by the police to
    investigate crimes that originate in contact between an accused and children
    through the internet. Thomas J. found the respondent guilty of child luring
    contrary to s. 172.1 of the
Criminal Code
, but stayed the charge on the
    basis of entrapment. The Crown now appeals from that decision. For the
    following reasons, I would allow the appeal, quash the stay of proceedings and
    remit the matter to the trial judge for sentencing.

[2]

The trial judge gave lengthy and thorough reasons that clearly set out
    the facts and the path taken by the judge to the finding of entrapment.
    However, in my view, the trial judge failed to consider one element of entrapment,
    the necessity of showing that the police gave the accused an opportunity to
    commit the offence. The line between proper investigation and providing an
    opportunity to commit an offence can be a fine one. But, having regard to the
    controlling authorities, particularly the decision of this court in
R. v.
    Imoro,
2010 ONCA 122, 251 C.C.C. (3d) 131, in my view that line was not
    crossed in this case.

THE FACTS

[3]

Following a trial by judge alone, the trial judge found the respondent
    guilty of child luring. That finding is not in issue in this appeal. The facts
    giving rise to the entrapment issue are accurately set out in the reasons of
    the trial judge, which can be found at 2010 ONSC 5606. I have liberally
    borrowed from those reasons in summarizing the facts.

[4]

In September 2007, London police were contacted by the vice-principal of
    a high school. Detective Howe, from the cyber crime unit, became involved in
    the investigation. It came to his attention that a sixteen year old female
    student named B. had entered a sexual relationship with a twenty-two year old
    male from Brampton, whom she had met on the internet.

[5]

Police interviewed B. and two of her friends. According to B. and her
    friends, B. and the respondent had consensual sex. The respondent videotaped
    the sexual acts and showed the video to one of B.s friends, and perhaps
    others. It was clear that B. and her friends were unwilling to assist in a
    prosecution.

[6]

Detective Howe was able to obtain the respondents hotmail address for
    MSN Messenger. On November 8, 2007, he sent the respondent a message asking to
    be added as a "friend" to his account. Detective Howe chose to adopt
    an identity he had used before on the internet; that of a thirteen year old
    London girl named Natasha.

[7]

The following day Detective Howe found he had been accepted as a friend
    by the respondent, and that the respondent was online. The respondent initiated
    an exchange with Natasha by asking her who she was, and how she had obtained
    his address. The respondent asked Natasha to let him see her via webcam.
    Natasha replied that her mom would not let her have a webcam, but that she had
    a picture of herself that she could send.  Detective Howe transmitted a picture
    that he used for undercover purposes to establish his identity to the respondent.
    The image transmitted was a colour photograph of a female member of the London
    Police Service, taken when she was approximately 13 years old. The image is of
    a young girl in a swimming pool. There is nothing sexual about the photograph.
    The child in the photograph is obviously young.

[8]

Once the respondent had received Natasha's picture, the following
    exchanges took place.  I have highlighted some of the important parts of the
    exchange:

natasha

did u see my pic

respondent

ya

natasha

wat u think

respondent

ur cute but too young

natasha

im 13 now but i was 12 in the pic

respondent

oh ok but still young lol

natasha

for wat lol

respondent

to talk to m
e

Natasha

oh how old r u

respondent

22

natasha

oh thats kewl but if y don wanna whatever

respondent

i dont care

natasha

k its kewl wit me

[9]

Natasha was then directed to a second MSN address for the respondent's
    friends. Between the two accounts the conversation continued:

respondent

do u like to hav fun

natasha

ya of corse lol

respondent

wat kinda fun

natasha

anything i guess is kewl

respondent

how about with a guy:P

natasha

wat u mean

respondent

u know getting naughty n having fun with a guy

natasha

oh lol sure thats kewl

respondent

lol ok u do that alot

natasha

ya a few time

respondent

wat have u done

natasha

everything

respondent

like

natasha

naughty stuff lol what u done

respondent

ru a virgin

natasha

i did it once

respondent

with who

natasha

my ex bf

respondent

how was it

natasha

it hurt a bit but it was fun

respondent

ya i know

natasha

what have u done

respondent

so wat hav u done other then that

natasha

u first lol

respondent

i've done everything

natasha

k wat u don

respondent

everything in sex lol

natasha

kewl lol what u like most

respondent

tight girls n sexy n cute ones like u

natasha

relly u like me?

respondent

like to get to know u

natasha

kewl me to

respondent

thats good

natasha

yuppers

respondent

hav u give a head

natasha

no i never done that have u had that done to u

respondent

ya

natasha

lol was it fun

respondent

yes very

natasha

lol guys like that

respondent

lol ya will u do it to me:P

natasha

ummmm k but i dont know wat u look like lol

[10]

Later in the conversation Natasha and the respondent arranged to meet
    when the respondent was going to be in London. On November 13, the respondent
    was arrested by London police at a payphone near the proposed meeting spot.

[11]

Detective Howe testified that he commenced the investigation of the
    respondent because he believed the respondent was possibly guilty of production
    and distribution of child pornography. Since the sexual activity with B. was
    consensual and B. was 16 years old the respondent did not commit any sexual
    offence.  However, the definition of child pornography in s. 163.1(1) of the
Criminal
    Code
can include images of persons under the age of 18 years.

REASONS OF THE TRIAL JUDGE

[12]

The trial judge referred to several leading decisions concerning
    entrapment including the decisions in
R. v. Mack
, [1988] 2 S.C.R. 903,
R.
    v. Barnes
, [1991] 1 S.C.R. 449 and
Imoro
. As he correctly held, the
    respondents case turned on the first branch of entrapment identified in
Mack
,
    namely, where the authorities provide a person with an opportunity to commit an
    offence without acting on: (i) a reasonable suspicion that this person is
    already engaged in criminal activity; or (ii) pursuant to a
bona fide
inquiry.
    The trial judge disbelieved Detective Howe. He held that the officer was not
    engaged in a
bona fide
investigation. The officer claimed to be engaged
    in a child pornography investigation however, his method of investigation was
    inconsistent with such a purpose.

[13]

The trial judge then turned to whether the officer was nevertheless
    acting on a reasonable suspicion that the respondent was already engaged in
    criminal activity. I have set out in full the part of his reasons at the core
    of the error alleged by the Crown:

The timing of the investigator's possession of the
    requisite suspicion is important (
R. v. Benedetti,
[1997] 7 W.W.R. 330
    (Alta. C.A.)).
As it was Detective Howe who instituted the first contact
    with Bayat, as "Natasha", I find it necessary that he had the
    reasonable suspicion at the time of his first message on November 8, 2007 and
    not at some later point in the investigation.
This is not like the
    investigations considered in
Imoro
and
Benedetti, supra
, where
    tips of drug trafficking lead officers to locations where it was alleged drugs
    were being regularly sold, and where ultimately drug charges were laid.
    [Emphasis added.]

[14]

In
Barnes
the court clarified that the police may only present an
    opportunity to commit a particular crime to a person who arouses a suspicion
    that he or she is already engaged in the particular criminal activity.  The
    trial judge concluded that since the officer in this case did not have a
    subjective belief that the respondent was engaged in child luring, the offence
    that he had set out to investigate, the requisite reasonable suspicion was
    absent. Entrapment was made out because the officer was not involved in a
bona
    fide
investigation and did not have a reasonable suspicion that the
    respondent was involved in a particular crime when he first communicated with
    the respondent. Accordingly, the trial judge entered a judicial stay of
    proceedings.

ANALYSIS

[15]

In
Mack
, Lamer J. explained the basis for entrapment in these
    terms at p. 956:

I take this statement [from
R. v. Amato,
[1982] 2 S.C.R. 418] to mean that
the police are entitled to provide
    opportunities for the commission of offences where they have reasonable
    suspicion to believe that the individuals in question are already engaged in
    criminal conduct
. The absence of a reasonable suspicion may establish a
    defence of entrapment for two reasons: firstly, it may indicate the police are
    engaged in random virtue-testing or, worse, are carrying on in that way for
    dubious motives unrelated to the investigation and repression of crimes and are
    as such "
mala fides
".  [Emphasis added.]

[16]

And later at p. 959:

To summarize then, the police must not, and it
    is entrapment to do so, offer people opportunities to commit crime unless they
    have a reasonable suspicion that such people are already engaged in criminal
    activity
or, unless such an offer is made in the course of a bona fide
    investigation. In addition, the mere existence of a prior record is not usually
    sufficient to ground a "reasonable suspicion". These situations will
    be rare, in my opinion. If the accused is not alleging this form of entrapment
    the central question in a particular case will be: have the police gone further
    than providing an opportunity and instead employed tactics designed to induce
    someone into the commission of an offence?  [Emphasis added.]

[17]

In
Imoro
,

at para. 13, this court interpreted
Mack
to mean that on the lack of reasonable suspicion branch of entrapment the court
    must make two findings: first, a finding that the police provided an
    opportunity to commit an offence; and second, a finding that the police did so
    without reasonable suspicion. In that case, the court found that the initial
    police contact with the accused did not amount to providing an opportunity to
    commit an offence. An opportunity was given later, but by that time the officer
    had the requisite reasonable suspicion. Accordingly, entrapment was not made
    out.

[18]

The appellant makes a similar argument here. In her very helpful
    submissions, Ms. Dellandrea argues that when the interchange with the
    respondent is examined, the officer never provided the respondent with an opportunity
    to commit an offence, as that concept is understood in the entrapment context.  Alternatively,
    at the very least such opportunity was not given until well into the
    communication at a time where the officer had a reasonable suspicion that the
    respondent was engaged in child luring by reason of the respondents own
    messages to Natasha.

[19]

I agree with the appellants submissions.  The issue is a difficult one
    and the line between simple investigation and offering an opportunity to commit
    an offence will sometimes be difficult to draw. In my view, the trial judge
    erred in failing to consider whether the officers conduct in simply opening up
    a dialogue with the respondent constituted an opportunity to commit an offence.
    As is apparent from the passage in the trial judges reasons set out above at
    paragraph 13, the trial judge held that the reasonable suspicion had to exist
    from the moment the officer contacted the respondent. He failed to consider
    whether that initial contact was an offer of an opportunity to commit an
    offence. In my view, it was not. The initial contact was no more than a step in
    an investigation, the equivalent of a knock on a door.

[20]

Detective Howe, in the guise of Natasha, offered to be added as a
    friend to the respondents MSN account. This act could not be construed as an
    opportunity to commit the offence of child luring. After the initial contact
    was made, the respondent took the initiative in opening up communications with
    Natasha. The respondent asked to view Natasha. The photograph provided by the
    officer in response to this request was neutral. It could in not be construed
    as sexually provocative or as offering an opportunity to commit an offence. The
    respondent took the lead in engaging in ever more explicit sexual discussions
    even though by then he believed that Natasha was a child. The officer gave the
    respondent several opportunities to withdraw from the discussion. However, the
    respondent chose to carry on.

[21]

Counsel for the respondent argues that the officers conduct in
    targeting the respondent through his MSN account was materially different from
    the usual method used by the police of entering a chat room.  See for example,
R.
    v. Alicandro
, 2009 ONCA 133. While I appreciate that there is a difference,
    in my view, it is not a legally material distinction. In the chat room type of
    investigation, police officers initially make themselves available to chat with
    everyone in the chat room, and then may enter a dialogue with particular
    individual. In this case the police officer made himself available to chat with
    a particular individual from the outset. In both situations, if it is the
    accused who takes the lead in directing the conversation, the element of
    offering an opportunity to commit the offence of child luring is not made out.
    There is a difference between simply providing an opportunity to chat or talk,
    and providing an opportunity to commit the offence of child luring.

[22]

The respondent further submits that if this court were to find that the
    trial judge erred in failing to consider whether the officer gave the
    respondent an opportunity to commit an offence, we should remit the matter back
    to the trial judge. He submits that this is essentially a factual issue to be
    determined by the trier of fact. I do not agree. In a judge alone trial, where
    the trial judge has made all the necessary findings of fact to support a
    finding of guilt, or those facts are not in dispute, the appellate court may
    substitute a finding of guilt on a Crown appeal from acquittal:
R. v.
    Cassidy
, [1989] 2 S.C.R. 345 at 354-55. The same test should apply on a
    Crown appeal from a stay of proceedings.

[23]

In this appeal, the relevant facts are uncontested and undisputed. They
    are set out in the transcripts of the communications between the respondent and
    the officer and in the trial judges reasons. It only remains for this court to
    apply the legally correct test for entrapment to those undisputed facts. The
    trial judges adverse finding of credibility against the officer on whether he
    was engaged in a
bona fide
investigation, or had a reasonable suspicion,
    do not affect the preliminary question of whether the facts reveal an
    opportunity to commit an offence. I am satisfied that there was no opportunity
    to commit an offence as that requirement was interpreted by this court in
Imoro
.

DISPOSITION

[24]

Accordingly, I would allow the appeal, set aside the stay of proceedings
    and remit the case to the trial judge to impose sentence in accordance with s.
    686(4)(b)(ii) of the
Criminal Code.

Signed:           M. Rosenberg J.A.

I agree Doherty J.A.

I agree R. G. Juriansz
    J.A.

RELEASED:  DD December 13, 2011


CITATION:
R. v. Demarco, 2011 ONCA 832

DATE: 20111222

DOCKET: C51237 C51397 C51356

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Lang JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Paul Demarco

Appellant

Theodore Sarantis, for the appellant

Kimberley Crosbie, for the respondent

Heard and endorsed: December 22, 2011

On appeal from sentence imposed by Justice John McMahon of the
          Superior Court of Justice on April 4, 2008; on appeal from sentence imposed
          by Justice Susanne Goodman of the Superior Court of Justice on June 27, 2008;
          and on appeal from sentence imposed by Justice Todd Ducharme of the Superior
          Court of Justice on December 22, 2008.

APPEAL BOOK ENDORSEMENT

[1]

The primary focus of this appeal was the sentence imposed by Ducharme J.
    We are satisfied that he did not err in principle and the sentence imposed,
    even against the background of the sentences imposed by Justices McMahon and
    Goodman, was fit. As Ducharme J. recognized, given the appellants record and
    the psychiatric evidence, protection of the public was the paramount
    consideration.

[2]

We agree with the trial judge that the totality principle was entitled
    to little weight. The main reason to reduce an otherwise appropriate sentence
    because of totality is to avoid imposing a sentence that would crush the
    accuseds hopes for rehabilitation. It was open to the trial judge to find that
    rehabilitation was not a factor in this case.

[3]

The trial judge was entitled to take into account the other offences
    which the appellant had committed and his lack of insight into the impact of
    his conduct. The latter, in particular, was a consideration as to any prospects
    for rehabilitation and is an important consideration as to his dangerousness.
    The total sentence although lengthy was appropriate given the seriousness of
    the offences.

[4]

While leave to appeal sentence is granted, the appeal is dismissed.


A V E R T I S
    S E M E N T

Le président du comité qui entend cet appel
    ordonne que lordonnance suivante soit jointe au dossier :

Lordonnance
    limitant la publication dans cette instance, en vertu des paragraphes 486.4
    (1), (2), (3) ou (4) ou en vertu des paragraphes 486.6 (1) ou (2) du
Code
    criminel,
est maintenue. Ces dispositions du
Code criminel
stipulent
    ce qui suit :

486.4
    (1)
Sous réserve du
    paragraphe (2), le juge ou le juge de paix qui préside peut rendre une
    ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit
    tout renseignement qui permettrait détablir lidentité dun plaignant ou dun
    témoin dans les procédures relatives à :

a)

lune des infractions suivantes :

(i)
une infraction prévue aux articles 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210,
    211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 ou 347,

(ii)
    une infraction prévue aux articles 144 (viol), 145 (tentative de viol), 149
    (attentat à la pudeur dune personne de sexe féminin), 156 (attentat à la
    pudeur dune personne de sexe masculin) ou 245 (voies de fait ou attaque) ou au
    paragraphe 246(1) (voies de fait avec intention) du
Code criminel
,
    chapitre C-34 des Statuts revisés du Canada de 1970, dans leur version antérieure
    au 4 janvier 1983,

(iii)
une infraction prévue aux paragraphes 146(1) (rapports
      sexuels avec une personne de sexe féminin âgée de moins de 14 ans) ou (2)
      (rapports sexuels avec une personne de sexe féminin âgée de 14 à 16 ans) ou aux
      articles 151 (séduction dune personne de sexe féminin âgée de 16 à 18 ans),
      153 (rapports sexuels avec sa belle-fille), 155 (sodomie ou bestialité), 157
      (grossière indécence), 166 (père, mère ou tuteur qui cause le déflorement) ou
      167 (maître de maison qui permet le déflorement) du
Code criminel
,
      chapitre C-34 des Statuts revisés du Canada de 1970, dans leur version
      antérieure au 1
er
janvier 1988;

b)    deux
    infractions ou plus dans le cadre de la même procédure, dont lune est une
    infraction visée aux sous-alinéas
a
)(i) à (iii).

(2)
Dans les procédures relatives à des
    infractions visées aux alinéas (1)
a
) ou
b
), le juge ou le juge de paix qui préside est tenu :

a)

daviser dès que possible les témoins âgés
    de moins de dix-huit ans et le plaignant de leur droit de demander
    lordonnance;

b)

de rendre lordonnance, si le poursuivant,
    le plaignant ou lun de ces témoins lui en fait la demande.

(3)

Dans les procédures relatives à une infraction visée à
    larticle 163.1, le juge ou le juge de paix rend une ordonnance interdisant de
    publier ou de diffuser de quelque façon que ce soit tout renseignement qui
    permettrait détablir lidentité dun témoin âgé de moins de dix-huit ans ou
    dune personne faisant lobjet dune représentation, dun écrit ou dun
    enregistrement qui constitue de la pornographie juvénile au sens de cet
    article.

(4)
Les ordonnances rendues en vertu du présent article
      ne sappliquent pas à la communication de renseignements dans le cours de
      ladministration de la justice si la communication ne vise pas à renseigner la
      collectivité.
. 2005, ch. 32, art. 15; 2005, ch. 43, al.
      8(3)b).

486.6
    (1)

Quiconque transgresse une ordonnance rendue
    conformément aux paragraphes 486.4(1), (2) ou (3) ou 486.5(1) ou (2) est
    coupable dune infraction punissable sur déclaration de culpabilité par
    procédure sommaire.

(2)
Il est entendu que les
    ordonnances mentionnées au paragraphe (1) visent également linterdiction, dans
    les procédures pour transgression de ces ordonnances, de diffuser ou de publier
    de quelque façon que ce soit tout renseignement qui permettrait détablir
    lidentité de la victime, du témoin ou de la personne associée au système
    judiciaire que lordonnance vise à protéger.
2005, ch. 32, art. 15.

RÉFÉRENCE : R. c. Disundidi, 2011
          ONCA 837

DATE : 20111223

DOSSIER : C48415

COUR DAPPEL DE LONTARIO

Sharpe, Blair et Rouleau J.C.A.

ENTRE

Sa Majesté La Reine

Intimée

et

Alberto Mpanzu Disundidi

Appelant

R. Silverstein, avocat de service, pour
          lappelant

J.K. Stewart, pour lintimée

Date de laudience et de la
          décision rendue séance tenante :
le 20
          décembre 2011

En appel de la condamnation imposée par
          la juge Monique Métivier de la Cour supérieure de justice en date du 23 janvier
          2008.

INSCRIPTION

[1]

Lappelant prétend que les verdicts de
    culpabilité étaient déraisonnables, car ceux-ci nétaient pas appuyés par la
    preuve au procès et la juge de première instance na pas traité de certains
    éléments de preuves troublants.

[2]

À notre avis, les verdicts étaient raisonnables
    et bien fondés.  Avant de conclure la culpabilité, la juge de première instance
    a dépouillé les éléments de preuves en examinant surtout les inconsistances
    pertinentes, soit internes ou externes, pouvant influer sur son appréciation de
    la fiabilité et de la crédibilité du témoignage de la plaignante.  Elle a noté
    notamment que le témoignage de la plaignante était assez vague quant à savoir où
    se retrouvaient certaines pièces de vêtements.  Ses motifs démontrent quelle était
    consciente des questions fondamentales en litige et quelle les a résolues.

[3]

Lappelant allègue de plus que la juge de
    première instance a commis une erreur de fait et de droit en permettant au
    procureur de la couronne de contre-interroger lappelant concernant lexistence
    dun autre dossier portant sur des allégations dabus contre lappelant.

[4]

Nous ne pouvons donner effet à ce motif
    dappel.  Dune part, lavocat de la défense a soulevé en premier des questions
    concernant lexistence de cet autre dossier.  Dautre part, il est évident que
    la juge de première instance na accordé aucune pertinence et na aucunement
    tenu compte de ce dossier en rendant sa décision.

[5]

Lappelant prétend finalement quil a souffert
    un préjudice du fait que la médecin consultée par la plaignante na pas
    témoigné.  Nous ne donnons pas raison à lappelant sur ce point.  Le fait que la
    médecin ne sest pas présentée au tribunal sexplique du fait quelle na pas
    été signifiée de façon appropriée et puisque lavocat de lappelant a renoncé
    au besoin de la faire témoigner.

[6]

La cour dappel doit faire preuve dun grand
    respect envers les conclusions tirées en première instance quant à la
    crédibilité des témoins.  La juge de première instance est certes dans une
    situation privilégiée relativement à cette évaluation.  En lespèce, il nest pas
    possible pour nous de conclure que les verdicts étaient déraisonnables ayant
    égard à lensemble de la preuve.  La juge de première instance a soupesé la
    crédibilité des témoins et a justifié ses motifs pour lesquels il était
    nécessaire de faire foi au témoignage de la plaignante plutôt que celui de
    lappelant.  En labsence dune erreur de la part de la juge dans son
    évaluation de la preuve et de la crédibilité des témoins, lappel doit, à notre
    avis, être rejeté.

[7]

Pour ces motifs, lappel est donc rejeté.

« Robert J. Sharpe
    j.c.a. »

« R.A. Blair
    j.c.a. »

« Paul
    Rouleau j.c.a. »


CITATION:
R. v. Edwards, 2011 ONCA 798

DATE: 20111216

DOCKET: C53924

COURT OF APPEAL FOR ONTARIO

Simmons, Blair and Hoy JJ.A.

BETWEEN

Her MajestyThe Queen

Respondent

and

Paul King Edwards

Appellant

Breese Davies, duty counsel

Paul Edwards, in person

Scott Latimer, for the respondent

Heard and released orally:  December 13, 2011

On appeal from conviction entered by Justice W. Salmers of the
          Superior Court of Justice dated March 16, 2011 and sentence imposed on May 2,
          2011.

ENDORSEMENT

[1]

The Crown concedes that the trial judge erred in
    failing to give credit for pre-sentence custody during the period October 12,
    2010 to January 6, 2011 (86 days). In fairness to the trial judge, he was not
    aware that the appellants bail had been revoked on this charge during this
    period.

[2]

The trial judge gave the appellant one-for-one
    credit for two other periods of pre-sentence custody that total 60 days. The
    only reason the trial judge gave for departing from the usual practice of
    giving two-for-one credit was the fact that the appellant had been charged with
    breach of recognizance. However, that charge was withdrawn. The trial judge
    therefore erred in failing to give two-for-one credit for the first of these
    periods (30 days). The accused only asked for one-for-one credit for the second
    of these periods (30 days). The trial judge did not therefore err in giving
    one-for-one credit for that period.

[3]

On appeal, the Crown argues that
    one-for-one credit should apply to the entire period of pre-sentence custody
    because the sentence the trial judge arrived at after giving credit for
    pre-sentence custody was otherwise fit. We reject this submission. The sentence
    the trial judge had decided to impose before giving credit for pre-sentence
    custody was a fit sentence. In our view, the appellant is entitled to
    appropriate credit for his pre-sentence custody.

[4]

Accordingly, l
eave to
    appeal is granted, the appeal is allowed and the sentence is reduced by 202
    days.

[5]

The appellant abandoned his conviction appeal on
    November 15, 2011.

Signed:           Janet
    Simmons J.A.

R.
    A. Blair J.A.

    Alexandra Hoy J.A.


CITATION:
R. v. Gruden, 2011
          ONCA 762

DATE: 20111202

DOCKET: C54227

COURT OF APPEAL FOR ONTARIO

Goudge, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Craig Lawrence Gruden

Applicant/Appellant

Robert Sheppard, for the appellant

Myfanwy Smith, for the respondent

Heard: November 30, 2011

On appeal from the sentence imposed by Justice W Rabley of the
          Ontario Court of Justice on June 28, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The 12 month sentence imposed by the trial judge increased the joint
    submission at trial twelve fold.  In doing so the trial judge in our view
    overemphasized the fact of the dangerousness of the drug involved.

[2]

He also gave too short shrift to the lack of severity of the crime
    itself, particularly its very low level of sophistication, and the very
    unfortunate circumstances and background of the offender.

[3]

On appeal, the appellant and the Crown both submit that this is an error
    in principle and the appropriate sentence is six months together with the
    probation imposed at trial.

[4]

We agree.  Leave granted, appeal allowed and sentence varied accordingly.