COURT OF APPEAL FOR ONTARIO

CITATION: Lam v. University of Western Ontario, 2019 ONCA 82

DATE: 20190206

DOCKET: C64761

Strathy C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Simon Lam

Plaintiff (Appellant)

and

The University of Western Ontario Board of
    Governors

Defendant (Respondent)

Selwyn A. Pieters and Christopher Stienburg, for the
    appellant

Sarah Jones, for the respondent

Heard: December 17, 2018

On appeal from the judgment of Justice Markus Koehnen of
    the Superior Court of Justice, dated November 22, 2017, with reasons reported
    at 2017 ONSC 6933.

Zarnett J.A.:

Introduction

[1]

The appellant, Simon Lam, appeals from the decision of the motion judge
    granting summary judgment dismissing his action against the respondent, the
    University of Western Ontario Board of Governors (the University). The appellants
    action claims damages for loss of income, pain and suffering, and out of pocket
    expenses resulting from his having been deprived of the opportunity to complete
    a Ph.D. degree.

[2]

The appellant enrolled, in 2011, in a Ph.D. program at the Universitys
    faculty of science. His thesis research focused on a highly specialized area of
    biochemistry. He had funding for his research through a grant obtained by his
    thesis supervisor from the Canadian Institute of Health Research (CIHR).

[3]

In 2012, the appellants thesis supervisor died. As a result, a new
    supervisory committee was formed. After various meetings and discussions with
    the new supervisory committee, the appellant transferred out of the Ph.D.
    program into a Masters program.

[4]

The appellant founds his action on the allegation that he was pressured
    by the new supervisory committee to transfer out of the Ph.D. program, in a
    manner that involved breaches of obligations the University owed to him. He
    says the members of the supervisory committee lacked, and were unwilling to
    acquire, the necessary expertise in his area of research, and misled and
    provided knowingly incorrect information to him about the availability and
    security of his funding.

[5]

The motion judge, after carefully reviewing the evidence, found there
    were genuine issues of fact that would require a trial to resolve, including:

(a)

whether the supervisory committee recommended the appellants transfer
    out of the Ph.D. program because it genuinely believed there were problems with
    the appellants work (as the University contended) or because the members of
    the committee were unwilling to familiarize themselves with his research (as
    the appellant contended); and

(b)

what the appellant was told about funding by the supervisory committee and
    whether those statements were justified.

[6]

The motion judge held, however, that it was not necessary for those
    issues to proceed to trial, because as a matter of law the appellants action
    should have been brought as a complaint to the University and should not be
    before [the] court to begin with. He granted summary judgment and dismissed the
    action.

[7]

In my view, the motion judge erred in law. The genuine issues of fact he
    identified as requiring a trial could, if resolved in favour of the appellant,
    result in a legally cognizable claim. There was nothing in law that required
    the Superior Court to decline to deal with such a claim or to refuse remedies
    such as damages, in favour of an internal University complaint process in which
    such remedies would not be available.

[8]

Accordingly, I would allow the appeal, set aside the judgment dismissing
    the action, and direct that the matter proceed to trial.

The Facts

[9]

The appellant received two Bachelor of Science degrees from the
    University of Alberta in 2005 and 2007, and another from the respondent University
    in 2009. Thereafter, he enrolled in a Masters program in biochemistry at the University.
    In 2011, and before completing a Masters degree, he was allowed to transfer to
    the Ph.D. program in biochemistry.

[10]

At
    the time of his transfer to the Ph.D. program, the appellants supervisor was
    Professor Megan Davey. According to the appellant, in June 2012 Professor Davey
    advised him that CIHR had approved a grant to fund her research and that of her
    doctoral students, including the appellant, and that he would receive funding
    from the CIHR grant until completion of his Ph.D.

[11]

In
    August 2012, Professor Davey unexpectedly died. According to the appellant this
    created uncertainties for him as to who would supervise his research, where the
    research would be done (it had been done at Professor Daveys lab), and about
    the continued availability of the CIHR grant, which had been funding the
    appellants Ph.D.

[12]

A
    new supervisory committee was then formed consisting of Professors Chris Brandl,
    David Edgell and Brian Shilton. They met formally with the appellant in
    November 2012, and April and May 2013.

[13]

Although
    the supervisory committee noted in November 2012 that the appellants work was
    satisfactory, in April 2013 it was critical of his work habits and of the pace
    of his work. The appellant deposed that at this meeting the committee told him
    it would be in his best interest to transfer out of the Ph.D. program to a
    Masters program.

[14]

At
    a further meeting in May 2013 (which was recorded by the appellant and later transcribed)
    there were discussions about whether the appellant should remain in the Ph.D.
    program or transfer to a Masters program. The motion judge summarized his
    conclusion about this meeting:

Mr. Lam submits that numerous passages of the latter portion of
    the transcript show the committee admitting that they did not have and were
    unwilling to acquire the required degree [of] expertise to supervise his Ph.D.
    Mr. Lam submits that the transcript also shows that the committee had made up
    its mind to transfer Mr. Lam to the Masters program immediately after his
    first supervisor passed away.

Western points to other passages of the transcript which it
    says are consistent with the committee providing an adequate degree of
    supervision.

In my view, the transcript has portions that support both Mr.
    Lams and Westerns characterization of events.

[15]

The
    appellant also gave evidence that, prior to the April and May 2013 meetings, he
    was told by a supervisory committee member that the CIHR grant could be
    cancelled due to Professor Daveys death, and that funding for his research was
    somewhat up-in-the-air. He deposed that during the April and May 2013
    meetings he was told my funding was not available to complete my PhD research
    and that I should transfer back to the Masters program.

[16]

The
    motion judge noted that when various statements were made to the appellant that
    funding was up in the air or might be cancelled, the funding had in fact
    already been extended, with one of the approved cost items being financial
    support for the appellant. He also noted that after the appellant transferred
    out of the Ph.D. program one of the supervisory committee members began to use
    the CIHR grant money that had been ascribed to the appellant, for other
    purposes.

[17]

The
    appellant applied to transfer back to a Masters program on May 6, 2013. He
    deposed that he felt after his meetings with the supervisory committee that he
    had no alternative. He specifically stated that he relied on their statements
    about there being no funding available and that if he had known there was such
    funding he would not have transferred.

[18]

In
    the formal request for the transfer, one of the supervisory committee members
    stated:

The advisory committee cannot provide the level of supervision
    necessary for Simon to complete a PhD. There is also no other faculty member in
    the Biochemistry or other program that can act as supervisor.

[19]

The
    motion judge stated that it was unclear from the form whether the committee was
    unable to provide the level of supervision because the appellant required too
    much handholding (as the University alleged) or because the committee members did
    not have the necessary expertise and were unwilling to acquire it (as the
    appellant alleged). He noted that none of the committee members filed an
    affidavit on the motion.

[20]

The
    appellant completed his Masters thesis through a successful defence in August
    2014 but alleges he was required during the Masters program to take outside
    employment and has not been able to resume his studies toward a Ph.D. or obtain
    his desired lab-based research employment due to his treatment by the University.

The Action and the Summary Judgment Motion

[21]

The
    appellant commenced his action in September 2014. The statement of claim was the
    subject of two motions by the University to strike it and was amended twice as
    a result of the disposition of those motions: see
Lam v. The University of
    Western Ontario Board of Governors
,
2015 ONSC 1642, and
Lam v.
    University of Western Board of Governors
, 2015 ONSC 5281. As finally
    constituted, the appellants Second Fresh as Amended Statement of Claim alleges
    that the conduct of the University constituted breach of contract and breach of
    fiduciary duty.
[1]
The particulars he alleges are the Universitys lack of good faith efforts to
    ensure an adequate alternate supervisor after Professor Davey died, the new
    supervisory committee members lack of expertise and their unwillingness to
    acquire it, their failure to inform him accurately about funding, and their
    pressuring him into transferring out of the Ph.D. program. He claims monetary
    relief  damages and equitable compensation.

[22]

The
    University defended the action denying the appellants main allegations as well
    as the existence of any breach or damages. The University then moved for summary
    judgment. The principal basis for its motion was that the claim relates to decisions
    about teaching, mentoring, supervising and administering the Ph.D. program and
    thus to matters that are purely academic in nature, and therefore the claim
    fails to disclose a reasonable cause of action.

The Motion Judges Decision

[23]

As
    noted above, the motion judge granted summary judgment dismissing the action.
    He found there were genuine issues of fact requiring a trial regarding the
    conduct and motivations of the supervisory committee members, and regarding what
    they knew and said about funding. But, as a matter of law, he held the action should
    have been brought as a complaint to the University whose decision would have
    been subject to judicial review. According to the motion judge, academic and
    legal issues must be distinguished when reviewing a universitys conduct;
    academic issues are to be resolved using a universitys informal operational
    and formal appeal processes and thereafter by judicial review.

[24]

Citing
    this courts decisions in
Gauthier v. Saint-Germain
, 2010 ONCA 309, 264
    O.A.C. 336, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 257, and
Jaffer
    v. York University
, 2010 ONCA 654, 268 O.A.C. 338, leave to appeal to
    S.C.C. refused, [2010] S.C.C.A. No. 402, the motion judge referred to the very
    broad discretion a university has and that a student, by enrolling, subjects
    him or herself to for the resolution of academic issues including evaluation of
    the students work, the structure of programs, and the competence of thesis
    supervisors, and that a court should be reluctant to interfere in the internal
    affairs of universities. He acknowledged that in those cases this court held
    that the court
has
jurisdiction to entertain a claim by a student
    against a university where the facts alleged constitute a cause of action based
    on tort or breach of contract even if the dispute stems from an academic or
    educational activity of the university. But, in his view, if the pith and
    substance of the impugned conduct is academic, it does not belong in the courts
    even if characterized as a breach of contract or tort claim. He held that if
    the impugned conduct
could
be interpreted as academic, the court should
    take a deferential approach to the university, and following such an approach
    find that the impugned conduct is not outside the universitys broad
    discretion. He equated the requirement articulated in
Jaffer
,
that a plaintiff must establish that
    the universitys actions go beyond its broad discretion, with what he termed
    the general rule that courts ought not to assume jurisdiction that others are
    better equipped to assume.

[25]

To
    apply those concepts, the motion judge asked to what degree a court or the University
    would be better able to deal with the issues that concerned the appellant by reason
    of expertise, policy and practicality. He reviewed the Universitys internal complaint
    processes, including the opportunity for the appellant to have raised his
    concerns with the deans, provosts or their deputies at the University, or its
    ombudsman, and then to have sought judicial review if he remained dissatisfied.

[26]

Applying
    this approach, the motion judge concluded that the appellants complaints would
    have been more appropriately resolved within the University, subject to
    judicial review. He held that the subject matter of the claim involved academic
    advancement and administration of a university program within the sphere of the
    Universitys discretion, and in areas where the University has more expertise
    and could have given faster and more direct remedies (even if they were not the
    remedies the appellant now seeks). He therefore held that as a matter of law
    the appellants claim should be dismissed.

The Standard of Review

[27]

Where,
    on a motion for summary judgment, the motion judge applies an incorrect
    principle of law, or errs with respect to a purely legal question, such as the
    elements that must be proved to make out a cause of action, the decision will
    be reviewed on a standard of correctness:
Hyrniak v. Mauldin
, 2014 SCC
    7, [2014] 1 S.C.R. 87, at para. 84.

[28]

The
    motion judge proceeded on a purely legal basis, applying principles of law to
    dismiss a claim that he held would, absent those principles, be a claim that
    would require a trial to resolve, given the conflict in the factual record
    underlying the claim. In order to reach the result he did, the motion judge
    was required to be correct about the legal principles. The applicable standard
    of review is therefore correctness.

Analysis

[29]

In
    my view, the result in this case is controlled by this courts decisions in
Gauthier
and
Jaffer
. In both of those cases, which involved claims of breach of
    contract by students against universities, this court held that if a plaintiff
    alleges the constituent elements of a cause of action based in tort or breach
    of contract, while claiming damages, the court will have jurisdiction even if
    the dispute stems from the scholastic or academic activities of the university
    in question. The question to be addressed was therefore whether the factual
    issues the motion judge found to exist could, if resolved in the appellants
    favour at trial, make out a cause of action for breach of contract. Because
    they could, the Universitys motion ought to have been dismissed.

[30]

The
    perceived advantages of the Universitys internal complaint processes were not
    germane to the issue.

A.

Gauthier
and
Jaffer

[31]

Although
    the motion judge referred to
Gauthier

and
Jaffer
, properly
    understood they do not support and in fact contradict his approach. The
    following propositions from those cases demonstrate this:

(a)

The relationship between a student and a university has a contractual
    foundation, giving rise to duties in contract and tort:
Jaffer
,

at para. 30. This is important here
    because one of the causes of action asserted by the appellant is breach of
    contract. The terms of the contract and the organizing principles of contract
    law are important to determine whether a breach of contract by the University (a
    legal cause of action) would be made out if the facts determined at trial favoured
    the appellant. The motion judge did not analyze this.

(b)

A student who enrolls at a university agrees to be subject to the
    institutions discretion in resolving academic matters, including the
    assessment of the quality of the students work and the organization and
    implementation of university programs:
Gauthier
,
at para. 47; and
Jaffer
,
at para. 27. The motion judge referred
    to this, but not in the proper context. Given the contractual basis of the relationship
    between student and university, this proposition is best understood as an
    implied term of the contract between student and university. The implied term
    is relevant because it goes to whether what the appellant complains of is a
    breach of contract, that is, whether there is a viable cause of action because the
    impugned conduct falls outside the broad discretion of the University. As with
    any implied term, it must be considered in light of the contracts express
    terms and the legal obligations any contract entails. The motion judge failed
    to consider the matter this way.

(c)

It is not accurate to say the court is without jurisdiction to deal with
    a claim for breach of contract or tort because it arises out of a dispute of an
    academic nature. It is the remedy sought that is indicative of jurisdiction.
    Where the claim by the student is for damages for a breach of contract or tort,
    jurisdiction exists to deal with the claim
even if the dispute arises out
    of an academic matter

(emphasis added):
Jaffer
, at
    para. 26. This is in contradistinction to a claim to reverse an internal
    academic decision, which would be pursued by judicial review:
Gauthier
, at

para. 46; and
Jaffer
, at
para. 26. The motion judge failed to
    approach the matter this way. He did not treat the remedy sought as indicative
    of the courts jurisdiction even though damages, not reversal of an academic
    decision, were sought. And without considering whether the facts that might be
    found at trial would show a breach of contract, he examined whether the dispute
    arose out of an academic matter and concluded the court could and should not
    deal with it.

(d)

A claim by a student against a university will fail if it is an indirect
    attempt to appeal an academic decision for which judicial review would be the
    remedy, or if insufficient detail is given in the pleadings to show that the
    universitys actions go beyond the broad discretion it enjoys:
Gauthier
, at
para. 50; and
Jaffer
, at
para. 28. These points do not invite
    a court to decline to entertain a legal claim for damages for breach of
    contract in favour of an internal university complaint process. Rather, they flow
    from the points above. A claim that does not allege conduct outside of the
    universitys broad discretion does not allege a breach of contract. It alleges
    conduct the university may engage in without breaching its contract, because it
    has been given a discretion by the agreement between the parties to act as it
    has. A claim that is an indirect appeal of an academic decision suffers the
    same fate. It is not really a claim that the university breached its agreement,
    but rather a claim that it should have exercised its discretion differently.

[32]

Therefore,
    the correct approach is not to ask whether the complaint falls on the academic
    or legal end of a spectrum and then determine the answer by considering which,
    as between a court and an internal university process, is the more desirable
    forum from the standpoint of efficiency, policy and practicality. Rather, the
    correct approach flowing from
Gauthier
and
Jaffer
is to ask
    whether the complaint is one for damages for breach of contract or tort, as
    opposed to an assertion that what the university did was something it had a
    discretion to do.

[33]

The
    divergence between the motion judges approach and that required by
Gauthier

and

Jaffer
is made clear by the following passages from
Jaffer
:

[29]    The Superior Courts jurisdiction over the action in
    this case is thus not ousted by the raising of issues relating to the
    universitys academic function. As in
Gauthier
, the action is not
    simply an indirect attempt at judicial review, as the appellant does not seek
    to reverse decisions with respect to his grades or compel the university to
    readmit him. His claim is that the university owed him various obligations in
    both contract and in tort, and that its failure to meet those obligations has
    caused him pecuniary and non-pecuniary damages. Such claims fall within the
    jurisdiction of the Superior Court and may proceed if they are properly pleaded
    and tenable in law and disclose a reasonable cause of action.

[31]    The real issue in this case is not whether the dispute
    is academic in nature, but rather whether the pleadings support a cause of
    action in either contract or tort.

[34]

What
    was said in
Jaffer
can be said of this case, notwithstanding that
Jaffer
involved a pleadings motion in which the facts alleged were taken to be true,
    and this case was a summary judgment motion in which factual issues were found
    to exist that require a trial to resolve. The real issue the motion judge
    should have addressed was not whether the dispute was academic in nature but
    whether the genuine issues of fact he found existed would, if resolved at trial
    as the appellant claims they should be, make out a cause of action in contract
    for which damages were claimed.

[35]

In
    my view the resolution of this issue yields the opposite result to that reached
    below. The following section explains why this is so.

B.

Application
    of the Principles
to the Factual Result Contended for by the Appellant

[36]

When
    a motion judge finds that genuine issues of fact exist that require a trial to
    resolve, an action may still be dismissed as a matter of law. But that can only
    be done when, no matter how those issues of fact might be resolved at trial, a
    fatal legal impediment to the claim exists. It is not sufficient that a legal
    impediment to the claim will exist in some factual scenarios that may be found at
    trial. It must exist in all factual scenarios. The legal impediment must bar
    the claim even if the plaintiffs best case on the genuine issues requiring a trial
    were made out. This follows from the motion judges duty to take the
    plaintiffs claim at its highest when considering a summary judgment motion:
    see
Hashemi-Sabet Estate v. Mazzulla
, 2016 ONCA 273, at para. 10; and
Khabouth v. Nuko
    Investments Limited
, 2013 ONCA 671, at para. 6.

[37]

The
    motion judge did not properly undertake that analysis. For example, although
    the motion judge said that the impugned conduct does not go beyond the broad
    discretion the University enjoys, he did not consider that proposition in all
    factual scenarios, including that contended for by the appellant. When that
    analysis is performed, it is clear that the impugned conduct does not fall
    within the Universitys broad discretion.

[38]

As
    noted above, in law, the relationship between the appellant and the University had
    a basis in contract:
Jaffer
,
at para. 30; see also
Young v. Bella
, 2006 SCC 3, [2006] 1 S.C.R. 108,
    at para. 31. The contract is alleged by the appellant to consist of a number of
    documents including the Universitys Graduate Student Handbook (the Handbook).
    The motion judge referred to the Handbook as something seemingly with
    contractual force and made no finding that the contract excluded those terms. However,
    he did not apply its terms in his analysis.

[39]

The
    Handbook provided, as to supervision, that thesis supervisors:

[S]hould have sufficient familiarity with the field of research
    to provide appropriate guidance and supervision, or indicate a willingness to
    gain that familiarity before agreeing to act as supervisor.

[40]

As
    to funding, the Handbook provided:

The supervisor should make the student aware, very early on, of
     various sources of funding.... The nature of any financial support provided
    by the supervisor should be communicated clearly to the student, in writing,
    including such details as the amount of financial support, the length of time
    of such support, and any specific conditions pertaining to this financial
    support.

[41]

The
    contract between the appellant and the University would also be subject to
    general provisions of the law, including the general duty of honesty in
    contractual performance: see
Bhasin v. Hrynew
, 2014 SCC 71, [2014] 3
    S.C.R. 494, at para. 73. As Cromwell J. put it, this common law duty  applies
    to all contracts to act honestly in the performance of contractual obligations
    and means simply that parties must not lie or otherwise knowingly mislead each
    other about matters directly linked to the performance of the contract:
Bhasin
,
    at paras. 33, 73. The motion judge did not consider this duty.

[42]

The
    broad discretion of the University that the motion judge referred to must be
    understood in light of these provisions and the general duty of honest
    performance. As Rouleau J.A. noted in
Gauthier
, the broad discretion
    would be an answer to a claim that did not allege more than that an academic
    result is wrong or a professor is incompetent: at para. 47. Here,
more
is alleged and there are genuine issues requiring a trial as to whether
more

occurred.

[43]

The
    appellants allegations could result in a finding that the appellant was
    knowingly misled as to the details, amount and duration of his financial
    support, in breach of the Handbooks requirement to communicate those matters to
    the appellant and in violation of the duty of honest performance. If that were
    the resolution of the genuine issue requiring a trial regarding funding, the
    appellants claim could not be rebutted by reference to the Universitys broad
    discretion. The University did not argue that it had a discretion to depart
    from contractual terms or from the duty of honest performance  nor could it
    have so argued.

[44]

Similarly,
    the appellants allegation regarding the supervisory committee is not that its
    members were incompetent. It is that, contrary to the Handbook, they agreed to
    be supervisors without sufficient familiarity with the appellants field of
    research or a willingness to gain it, and used their positions as supervisors
    to pressure the appellant out of the Ph.D. program. If that were the finding
    arising from a trial, the appellants claim could not be rebutted by reference
    to the Universitys broad discretion.

[45]

To
    be sure, there are other possible outcomes of the genuine issues of fact
    requiring a trial, including factual findings of conduct that would be protected
    by the Universitys broad discretion such that no breach of contract occurred.
    But unless all outcomes would result in the failure of the appellants claims, his
    action cannot be dismissed as a matter of law. As shown above, not all outcomes
    are amenable to that result.

[46]

The
    resolution of the genuine issues of fact the motion judge found to exist could
    thus result in findings of breach of contract. The appellant has claimed damages
    for such a breach. That is a legal claim for a remedy over which the court has
    jurisdiction. The existence of damages and the necessary causal link between
    any breach and those damages were not in issue on the motion or this appeal. The
    claim cannot be properly characterized as one that never should have been in
    court to begin with, at least from a legal point of view. Nor is it a claim that
    the court may decline jurisdiction to address on the basis that others may be
    better equipped to resolve it.

C.

The Universitys Internal Complaint Processes

[47]

The
    parties disagreed before us as to whether there was any internal complaint process
    to which the appellant could have had resort and whether that matter was even properly
    before the motion judge. It is not necessary to resolve those issues. Given my analysis
    above, whether an internal process at the University existed with advantages
    from an expertise, policy and practicality standpoint to resolve the
    appellants complaints  albeit with remedies other than what the appellant is
    seeking  is not germane. It was not suggested that the parties had agreed that
    claims for damages for breach of contract would be heard in a forum other than
    the court.

Conclusion

[48]

For
    the reasons above, I would allow the appeal, set aside the decision of the
    motion judge, and substitute an order dismissing the Universitys motion for
    summary judgment and directing that the matter proceed to trial.

[49]

I
    would award costs of the appeal to the appellant in the amount of $12,500,
    inclusive of disbursements and HST. The parties did not address costs of the
    motion below in the event the appeal was allowed. If the parties cannot resolve
    that issue they may make brief written submissions, of no more than two pages,
    within 15 days of the release of these reasons.

Released: February 6, 2019 (G.R.S.)

B.
    Zarnett J.A.

I agree. G.R. Strathy C.J.O.

I agree. P. Lauwers J.A.

[1]
In my view, this appeal may be disposed of on the basis of the appellants
    breach of contract claim alone. It is not necessary to address the appellants
    claim for breach of fiduciary duty, as partial summary judgment was not sought
    nor would it be appropriate.


COURT OF APPEAL FOR ONTARIO

CITATION: Ma v. Ottawa (City), 2019 ONCA 142

DATE: 20190222

DOCKET: C65978

Hourigan, Benotto and Huscroft JJ.A.

BETWEEN

Chuang Ma

Appellant

and

City of Ottawa

Respondent

Chuang Ma, in person

Jeremy Wright, for the respondent

Heard: February 21, 2019

On appeal from the judgment of Justice Robert Beaudoin of
    the Superior Court of Justice, dated September 6, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals from the endorsement of the motion judge
    dismissing his action pursuant to r. 2.1.01.

[2]

We see no basis to interfere with the decision of the motion judge. The
    essence of the appellants claim is that the Ottawa Police Service ought to
    have prevented an unnamed person from putting up posters stating that he was a
    spy. The motion judge correctly concluded that the respondent is not
    responsible at law for the torts of the officers of the Ottawa Police Service.
    The claim does not disclose a cause of action and is frivolous, vexatious and
    an abuse of process. The appeal is dismissed. The appellant shall pay the
    respondents costs of the appeal in the all-inclusive sum of $100.


COURT OF APPEAL FOR ONTARIO

CITATION: Marchese v. Marchese, 2019 ONCA 116

DATE: 20190215

DOCKET: C64743

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Angela Marchese

Applicant

(Appellant)

and

Giuliano Marchese

Respondent

(Respondent in Appeal)

Angela Marchese, in person

Sidney Klotz and Jennifer Klotz, for the respondent

Heard and released orally: January 16, 2019

On appeal from the
    judgment of Justice M. Faieta of the Superior Court of Justice, dated November
    15, 2017.

REASONS FOR DECISION

[1]

The main issue on this appeal is the judicially
    ordered sale of the parties matrimonial home.

[2]

The appellant submits that the trial judge erred
    in ordering the sale because he did not consider the best interests of the
    parties children (aged 22, 19 and 16 at the time of trial), who have resided
    with the appellant in the matrimonial home since the date of the 2012
    separation.

[3]

We do not accept this submission.

[4]

In ordering the sale, the trial judge properly
    considered and applied the relevant criteria noted in para. 18 of his reasons,
    and the best interests of the children.

[5]

As the trial judge correctly stated, the
    respondent had a
prima facie
right to an order
    for the partition and sale of the matrimonial home.  As a result, the trial
    judge was required to order the sale unless the appellant demonstrated that
    such an order should not be made and showed there was malicious, vexatious or
    oppressive conduct on the part of the respondent in relation to the sale
    itself.  The trial judge found that the appellant did not allege there was any
    such conduct nor did she put forward any other legal basis to preclude the sale
    of the matrimonial home.

[6]

The appellant and her three daughters have had
    the benefit of living in the house for six years.  The trial judge found that
    the parties, both of whom are unemployed, do not have the independent means to
    carry the costs of the home.

[7]

The appellant also raised a number of issues in
    her notice of appeal regarding valuation of assets.  The trial judges reasons
    on these issues are supported by the evidence and entitled to deference on
    appeal.  We see no basis to interfere with them.

[8]

Accordingly, the appeal is dismissed.

[9]

The respondent was successful on this appeal and
    is entitled to his partial indemnity costs.  In assessing costs, we look at the
    amount that is fair, reasonable and proportionate in the circumstances of this
    case.

[10]

While the appeal had little merit, responding to
    this matter did not require two counsel for the respondent.  Nor is the
    appellant required to pay the time necessary for respondents new counsel to
    become familiar with the file.  We also note that the appellant was successful
    on the stay and dismissal motions.  As a result the respondent is not entitled
    to costs of those motions.

[11]

For these reasons, we fix the respondents costs
    of this appeal in the amount of $10,000, inclusive of disbursements and all
    applicable taxes.

[12]

As the date for listing and sale of the properties have passed, the
    order
will be amended as follows.  We replace what is in paragraph 1
    with the following: The matrimonial home at 3 Highland Hill, Toronto and the
    real property at 37 Bentwood Avenue, Toronto shall both be listed for sale by
    February 15, 2019 with a real estate agent acceptable to both parties at a
    listing price recommended by the listing agent, with a closing date not later
    than June 30, 2019 and the net proceeds after sale after payment of encumbrances
    and costs shall be paid into court and paid out of court upon agreement of the
    parties or as ordered by the Superior Court.

[13]

In
    paragraph 2, we substitute the following for what is now in paragraph 2: All
    outstanding costs orders including the costs of this appeal and equalization
    payments shall be satisfied from the proceeds of the sale.

[14]

In
    paragraph 3(a), we substitute the date of February 1, 2019, as the date by
    which the parties are to submit the names of their two real estate agents
    acceptable to them.

[15]

In
    paragraph 3(b) we substitute the date of February 5, 2019.  In paragraph 3(d),
    we substitute the date of June 30, 2019.

Robert Sharpe J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mehedi v. Smith, 2019 ONCA 148

DATE: 20190226

DOCKET: C64632

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Golam Mehedi

Appellant

and

Dale Smith, M.A. Hameed, Wendell Lacombe
    and Gordon Mackay, C.O.B. Job Success, 2057161 Ontario Inc.

Glenroy Bastien, for the appellant

Karen Papadopoulos, for the respondent Her Majesty the
    Queen in Right of Ontario
[1]

Heard: February 13, 2019

On appeal from the order of Justice Michael R. Dambrot of
    the Superior Court of Justice, dated November 20, 2017.

REASONS FOR DECISION

[1]

After unsatisfactory dealings with an entity known as Job Success, the
    appellant, Golam Mehedi, commenced a civil action in the Superior Court of
    Justice against Job Success and three individuals he alleged were connected to
    it: Dale Smith, Abdul Hameed and Wendell Lacombe. His action, commenced in
    January 2011, was dismissed in June 2011. His appeal from that result was dismissed
    by this court in January 2012.

[2]

A CBC Marketplace episode, which the appellant believed provided
    evidence in support of his claim, aired in February 2012. The appellant moved
    to reopen his civil action. In November 2014 a judge of the Superior Court
    denied his request, but in October 2015 this court allowed an appeal from that
    decision, finding the motion judges reasons to have been inadequate.

[3]

The appellant, with legal advice, then settled his civil action. He subsequently
    moved to set aside the settlement and reopen the action, but a judge of the Superior
    Court dismissed his motion in July 2016.

[4]

On November 24, 2016 the appellant swore a private information against
    the same three individuals he had sued  Smith, Hameed and Lacombe  for the
    offence of fraud under $5,000.

[5]

A pre-enquete hearing was held before Justice of the Peace R. Roffey on
    April 6, 2017. J.P. Roffey declined to issue a warrant or summons directed at the
    proposed accused. She found there was no
prima facie
case against
    Lacombe, and even though there was such a case against Smith and Hameed, she
    would exercise her discretion not to issue process. She provided a number of
    grounds for doing so, including the fact that the limitation period for summary
    conviction proceedings had lapsed and a trial by indictment was not warranted,
    as well as the absence of a reasonable prospect of conviction on the criminal
    standard.

[6]

On April 20, 2017, the appellant swore a second private information
    against a fourth individual, Gordon Mackay, for the same offence. A pre-enquete
    hearing was held on June 22, 2017 before Justice of the Peace R. Giulietti, who
    refused to issue process. She cited, among other things, the lack of a
prima
    facie
case as there was insufficient evidence to charge Mackay, and a
    concern about the appellants purpose in attempting to bring criminal
    proceedings after his civil proceedings had been terminated.

[7]

The appellant brought an application for
certiorari
to quash both
    the decisions of J.P. Roffey and J.P. Giulietti not to issue process. On
    November 20, 2017, Dambrot J. dismissed that application, holding that neither
    of the Justices of the Peace had made a jurisdictional error. The appellant
    appeals that decision.

[8]

In our view, there is no merit to the appeal. No error is evident in the
    application judges decision. The appellants submissions have not disclosed an
    error in jurisdiction by either Justice of the Peace. A jurisdictional error is
    necessary for a
certiorari
application of this nature to succeed:
R.
    v. Russell
, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19.

[9]

Moreover, Crown counsel before us asserted that even if a Justice of the
    Peace had issued process, the Crown would have been duty-bound to withdraw
    charges on the basis that there was no reasonable prospect of conviction and no
    public interest in proceeding with the charges. Even where a Justice of the Peace
    has erred in declining to issue process, a person seeking to quash that refusal
    to issue process has suffered no prejudice if the Crown would have stayed the
    proceeding. An appeal from a refusal under those circumstances may be
    dismissed:
R. v. Olumide
, 2015 ONCA 18.

[10]

Accordingly,
    on both grounds set out in paragraphs 8 and 9 above the appeal is dismissed.

K. Feldman J.A.

David M. Paciocco J.A.

B. Zarnett J.A.

[1]

The order of the Superior Court from which this appeal arises
    names as respondents persons who were not party to the appellants application
    for prerogative relief. The Crown is the properly named respondent.


COURT OF APPEAL FOR ONTARIO

CITATION: Myles v. Myles, 2019 ONCA 143

DATE: 20190222

DOCKET: C65719

Hourigan, Benotto and Huscroft JJ.A.

BETWEEN

Jennifer Kelly Nadine
    Myles

Applicant (Respondent in Appeal)

and

Jordan William Myles

Respondent (Appellant)

S. Nadine Finbow and Lindsay Hayes, for the appellant

Ross H. Thomson, for the respondent

Heard and released orally: February 20, 2019

On appeal from the
    judgment of Justice Silja Seppi of the Superior Court of Justice, dated June
    29, 2018.

REASONS FOR DECISION

[1]

The appellant father appeals from the trial judges decision allowing
    the respondent mother to move with their three children from Lions Head,
    Ontario on the Bruce Peninsula to a location closer to her employment. She does
    not seek to move further than the Bruce/Grey counties, a distance that the
    father regularly drives to and from work.

[2]

He submits that the trial judge misapprehended the evidence, failed to
    give sufficient weight to the Views of the Child Report, and came to a
    conclusion that was not in the best interests of the children. He also seeks to
    file and rely on fresh evidence which further describes the childs wishes.

[3]

We do not accept these submissions. A trial judges decision with
    respect to custody matter, including mobility, is afforded great deference by
    this court.

[4]

The appellant can point to no palpable and overriding error. The trial
    judge carefully reviewed the evidence and made conclusions supported by the
    evidence. Her conclusion that the respondent was the primary caregiver was open
    to her on the evidence.

[5]

The trial judge was careful to explain why she was not following the
    wishes of the oldest child as articulated in the Views of the Child Report. She
    correctly took them into account but as always, must base her decision on all
    of the evidence. We note parenthetically that the oldest child is now 17 years
    old and shortly will be able to determine for himself where he is going to
    live.

[6]

The appellants submission that the trial judge failed to take a full
    and sensitive inquiry of the best interests of the children is not well
    founded. On the contrary, her reasons disclose a careful analysis of the facts.

[7]

Although the respondent consents to the admission of fresh evidence, in
    our view, the facts do not satisfy the
Palmer
test as they do not bear
    on a potentially decisive issue at trial. More importantly, the appellant has
    stated that the parties are unable to agree to a motion to change on consent.
    Fresh evidence on appeal is not a substitute for a motion to change.

[8]

On this basis the appeal is dismissed. Costs of the appeal are payable to
    the respondent in the all-inclusive sum of $5,000.

C.W. Hourigan J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: New Dermamed Inc. v. Sulaiman, 2019 ONCA 141

DATE: 20190225

DOCKET: C65406

Doherty, Pardu and Nordheimer JJ.A.

BETWEEN

New Dermamed Inc.

Plaintiff (Appellant)

and

Danna Sulaiman
and Google Inc.

Defendants (
Respondent
)

Ruzbeh Hosseini and Joan Kasozi, for the appellant

J. Sebastian Winny, for the respondent

Heard: February 15, 2019

On appeal from the order of
    Justice Peter Cavanagh of the Superior Court of Justice, dated April 19, 2018,
    with reasons reported at 2018 ONSC 2517, and from the costs order dated June 4,
    2018, with reasons reported at 2018 ONSC 3454.

REASONS FOR DECISION

[1]

New Dermamed Inc. appeals from the order of the motion judge that
    dismissed its claim pursuant to s. 137.1 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43 and ordered costs payable in the amount of $20,000.00,
    inclusive of HST and disbursements.

[2]

The respondent sought and obtained laser resurfacing treatment on her cheeks
    from the appellant. The respondent purchased three laser skin resurfacing
    treatments. After receiving the first treatment, the respondent alleged that
    she had suffered volume loss to her face. She discontinued the laser
    resurfacing treatment and replaced her two remaining treatments with a
    micro-needling treatment. Despite being informed that volume loss is not a side
    effect of the laser resurfacing treatment she received, the respondent
    continued to insist that she had suffered volume loss as a result of the
    treatment.

[3]

The respondent wrote and published four different reviews regarding the
    appellant on a webpage associated with, and maintained by, Google Inc.
[1]
In her review, the respondent complained that she had experienced volume loss
    and that her face looked "saggier" and had "melted off. The
    second, third, and fourth reviews were revised versions of the first review.
    Both the second and third revisions were preceded by letters from the
    appellants lawyers complaining that the reviews were false and libelous. The
    letters insisted that the respondent permanently delete her comments, otherwise
    she would be sued. While the respondent revised her review, she did not delete
    it.

[4]

The respondent was served with the statement of claim in this action in
    late November 2017. The action was brought under the simplified procedure
    Rule 76,
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. The
    appellant claimed damages of $500,000.

[5]

The motion judge concluded that the comments made by the respondent in
    her reviews were expressions on a matter of public interest. The motion judge then
    turned to determine if the exception under s. 137.1(4), to the presumption that
    the action should be dismissed under s. 137.1(3), applied. The motion judge concluded
    that it did not because the appellant had failed to establish that the respondents
    defence of fair comment was invalid under s. 137.1(4)(a)(ii).

[6]

The motion judge heard and decided the s. 137.1 motion before this court
    released a series of judgments interpreting s. 137.1: see
1704604 Ontario
    Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R. (3d) 161 and
    the related cases released simultaneously. As we shall explain, the motion
    judge applied the wrong test in determining whether the appellant had shown
    that the respondent had no valid defence to the claim within the meaning of s.
    137.1(4)(a)(ii).

[7]

The appellant does not now quarrel with the motion judges conclusion
    that the comments made by the respondent in her reviews were expressions on a
    matter of public interest. In any event, the motion judges conclusion that it
    was a matter of public interest finds support in the case law. As McLachlin
    C.J.C. said in
Grant v. Torstar Corp.
,
2009 SCC 61, [2009] 3
    S.C.R. 640, at paras.105-106:

The case law on fair comment "is replete with successful
    fair comment defences on matters ranging from politics to restaurant and book
    reviews".

The public has a genuine stake in
    knowing about many matters, ranging from science and the arts to the
    environment, religion and morality. The democratic interest in such
    wide-ranging public debate must be reflected in the jurisprudence. [citations
    omitted.]

[8]

Consequently, the action would be presumptively dismissed under s.
    137.1(3) unless the appellant could satisfy the court that the exception under
    s. 137.1(4) applied.

[9]

Section 137.1(4) reads:

A judge shall not dismiss a proceeding under
    subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding
    has substantial merit, and

(ii) the moving party
    has no valid defence in the proceeding; and

(b) the harm likely
    to be or have been suffered by the responding party as a result of the moving
    partys expression is sufficiently serious that the public interest in
    permitting the proceeding to continue outweighs the public interest in
    protecting that expression.

[10]

The
    motion judge concluded that the proceeding had substantial merit but that the
    appellant had failed to establish that the defence of fair comment was invalid.
    On that point, he found that the reviews were comments or opinions; that there
    was a sufficient factual basis for the comments; that the appellant had failed
    to show that no person in the respondents circumstances could have honestly
    held the opinions that she expressed; and that the respondent had not made the
    comments out of malice.

[11]

In
    reaching his conclusion, the motion judge interpreted the onus on the appellant
    under s. 137.1(4)(a)(ii) as requiring the appellant to show that the defence of
    fair comment could not succeed: at paras. 38-40. That is not the onus that was
    on the appellant as this courts decision in
Pointes
now makes clear. As
    stated in
Pointes
, at para. 84:

The onus rests on the plaintiff to
    convince the motion judge that, looking at the motion record through the
    reasonableness lens, a trier could conclude that none of the defences advanced
    would succeed. If that assessment is among those reasonably available on the
    record, the plaintiff has met its onus.

[12]

Put
    another way, the onus on the appellant was not to show that there was no possibility
    that the defence of fair comment could succeed but, rather, just that it was reasonably
    possible that a trier could conclude that the defence would not succeed.

[13]

We
    do not agree with the motion judge that a trier could only conclude that the
    comments made by the respondent were matters of opinion, rather than matters of
    fact. Having regard to the entirety of the respondents comments, and the
    context in which they were made, we are satisfied that a reasonable trier could
    conclude that she was stating facts and not opinions. Specifically, a
    reasonable trier could view her claims of volume loss in her face, as a result
    of the laser treatments, as statements of fact. If a trier concluded that the
    respondent was making a factual assertion, then the defence of fair comment
    would not be available:
WIC Radio Ltd. v. Simpson
, 2008 SCC 40, [2008]
    2 S.C.R. 420, at paras. 26-28. Consequently, the appellant had met its burden
    under s. 137.1(4)(a)(ii).

[14]

However,
    that conclusion does not lead to a different result in terms of the dismissal
    of the action because, in our view, the appellant has not satisfied the
    balancing exercise under s. 137.1(4)(b).

[15]

While
    the appellant has filed evidence of some lost business as a result of the
    reviews that the respondent posted, it has not provided any quantification of
    those losses nor identified how those losses relate to its overall business.
    The appellant has not, therefore, established that any harm that it has
    suffered at the hands of the respondent is sufficiently serious that the
    public interest in permitting the proceeding to continue outweighs the public
    interest in protecting that expression: see s. 137.1(4)(b).

[16]

The
    action was therefore properly dismissed. We note in passing that the appellant
    had raised, in its factum, an issue as to whether the procedural constraints
    inherent in a proceeding under Rule 76 should, in some fashion, affect the
    analysis under s. 137.1. However, the appellant abandoned that issue at the
    hearing.

[17]

The
    appellant also sought leave to appeal the costs award made by the motion judge.
    We would not grant leave to appeal. The appellant has not satisfied us that the
    motion judge erred in exercising his discretion in fixing costs such that leave
    to appeal should be granted:
Brad-Jay Investments Ltd. v. Szijjarto
(2006),
    218 O.A.C. 315 (C.A.), at para. 21, leave to appeal dismissed [2007] S.C.C.A.
    No. 92.

Conclusion

[18]

The
    appeal is dismissed with costs to the respondent fixed in the agreed amount of
    $10,000, inclusive of disbursements and HST.

Doherty
    J.A.

G.
    Pardu J.A.

I.V.B.
    Nordheimer J.A.

[1]

Google Inc. was never served with the statement of claim and did
    not participate in the motion.


COURT OF APPEAL FOR ONTARIO

CITATION: New Haven Mortgage Corporation v. Delson, 2019 ONCA
    102

DATE: 20190213

DOCKET: C66371

Sharpe, Benotto and Brown JJ.A.

BETWEEN

New Haven Mortgage Corporation and Filomena
    Muraca

Plaintiffs (Respondents)

and

Malka Delson and Robert Delson

Defendants (Appellants)

J. David Sloan, for the appellants

Matthew Wise and Jordan Kamenetsky, for the respondents

Heard and released orally: February 8, 2019

On appeal from the judgment of Justice Mario D. Faieta of
    the Superior Court of Justice, dated December 18, 2018.

REASONS FOR DECISION

[1]

The appellants admit the mortgage debt, but contend the financial
    difficulties that prevent them from paying the mortgage debt are due to the
    improper actions of the lawyer who acted for them on the placement of the
    mortgage.

[2]

There is no evidence that the appellants dispute with their former
    lawyer has anything to do with the conduct of the respondent mortgagees in
    advancing the mortgage funds or seeking to enforce the mortgage. Moreover, the
    dispute with their former lawyer only relates to the use of about $40,000 from
    the mortgage proceeds to discharge certain writs registered against title.
    Prior to the advance of the mortgage funds, the appellants knew the writs were
    registered on title. As well, they offer no reasonable explanation as to how
    resolving that claim against their lawyer will enable them to pay the
    approximately $830,000 now due under the mortgage. Finally, the appellants have
    not made any payments under the mortgage since early 2018.

[3]

In those circumstances, we agree with the motion judges conclusion that
    there is no equitable basis to prevent the enforcement of the mortgage.

[4]

The appeal is dismissed.

[5]

The respondent does not request any costs, so there will be no order as
    to costs.

Robert
    J. Sharpe J.A.
M.L. Benotto J.A.
David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Nikou v. Karageorgos, 2019 ONCA 83

DATE: 20190205

DOCKET: C65549, C65550 and C65551

Hourigan, Miller and Paciocco JJ.A.

DOCKET:
    C65549

BETWEEN

Dennis Nikou

Plaintiff (Appellant)

and

Lazaros Karageorgos, Richard C. Belsito, Stephan
    Tassopoulos, Efthalia Tassopoulos, Vasilios Tassopoulos, Andriana Tassopoulos,
    Jack Zwicker and Adam Pantel

Defendants (Respondents)

DOCKET:
    C65550

BETWEEN

Dennis Nikou

Plaintiff (Appellant)

and

Philip David, Lazaros Karageorgos and Richard C.
    Belsito

Defendants (Respondents)

DOCKET:
    C65551

BETWEEN

Dennis Nikou, Estate Trustee of the Estate of
    Chris (a.k.a. Christos) Nikou and
Dennis Nikou

Plaintiffs (
Appellant
)

and

Stephan Tassopoulos, Efthalia Tassopoulos,
    Vasilios Tassopoulos, Andriana Tassopoulos, Richard C. Belsito, Jack Zwicker,
    Adam Pantel and Lazaros Karageorgos

Defendants (Respondents)

Patrice Côté, for the appellant

Gavin Tighe and Jonathan
    Nehmetallah, for the respondents Lazaros Karageorgos, Richard C. Belsito, Jack
    Zwicker and Adam Pantel

Joseph P. Maggisano, for the
    respondents Stephan Tassopoulos, Efthalia Tassopoulos, Vasilios Tassopoulos and
    Andriana Tassopoulos

No one appearing for the respondent
    Philip David

Heard: February 4, 2019

On appeal from the orders of Justice Andra Pollak of the Superior
    Court of Justice, dated May 29, 2018.

REASONS FOR DECISION

[1]

Dennis Nikou is aggrieved that he and his siblings were cut out of his grandfather
    Trifon Tassopouloss will. He believes that his grandfather and his
    grandmother, Domna Tassopoulos, were subject to undue influence and fraudulent
    conduct by other family members.

[2]

After Trifon Tassopoulos died in March 2010, this family dispute led to
    two lawsuits  a 2012 action and a 2015 action. Those actions were ultimately
    dismissed and discontinued, respectively.

[3]

In 2017, Mr. Nikou commenced three new actions against family members
    and a number of lawyers who were involved in transactions relating to his
    grandparents estates, or who acted in the 2012 and 2015 actions. The three 2017
    actions are overlapping and include claims framed in harassment and defamation.
    On May 29, 2018, after due notice, a motion judge dismissed those actions
    pursuant to
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, r. 2.1.01.

[4]

Mr. Nikou appeals each of the dismissals. Between his written and oral
    argument we understand him to be presenting three common grounds of appeal to
    each of the three r. 2.1.01 dismissal decisions. We would describe those
    grounds of appeal as follows. In each of the cases:

(1)

The motion judge did not make a
    finding that the proceeding was frivolous or vexatious or an abuse of process
    as required by r. 2.1.01(1);

(2)

The motion judge erred in
    dismissing the action because the harassment and defamation claims find support
    in the pleadings;

(3)

The motion judge did not give
    reasons why the statement of claim could not be remedied with an amendment.

[5]

After oral argument we dismissed the appeals, with reasons to follow.
    These are our reasons.

[6]

We agree that in her brief decisions the motion judge did not describe
    the actions as frivolous or vexatious or an abuse of process. We nonetheless
    dismissed the first ground of appeal because it is evident in all of the
    circumstances that she found the claims made to be frivolous and vexatious on
    their face.

[7]

She clearly understood her task; in related endorsements in each of the actions
    the motion judge notified Mr. Nikou that the court was considering making an
    order dismissing the actions as frivolous, vexatious or otherwise an abuse of
    process.

[8]

After considering the pleadings and what she found to be Mr. Nikous
    non-responsive written submissions in each case, she concluded that although the
    claims appear to identify causes of action, they do not contain pleadings
    supporting those causes of action. In other words, the claims were frivolous
    because they lacked a legal basis or legal merit, and they were vexatious in
    the sense that they were instituted without reasonable ground:
Gao v.
    Ontario WSIB
, 2014 ONSC 6497, 61 C.P.C. (7th) 153, at para. 9. Simply put,
    she found the proceedings to be frivolous and vexatious, on their face.

[9]

We dismissed the second ground of appeal because, read generously, the
    claims do not sufficiently express the gravamen of cognizable causes of action.
    To the extent that a basis for allegations of harassment and defamation can be
    gleaned from an optimistic reading of the pleadings, those allegations relate to
    the pleadings and evidence given in the 2012 and 2015 actions. Patently, they
    represent an attempt to reopen the 2012 and 2015 actions. Mr. Nikou veritably
    admitted as much in seeking to respond to the r. 2.1.01 motions when he argued
    that in considering whether to dismiss the 2017 actions, the court should
    consider whether it is necessary for him to incur the additional legal costs of
    seeking to reopen the 2012 and 2015 actions. Attempting to relitigate, in a new
    action, matters that have already been determined by final court orders is an
    abuse of process and can form no basis for a cognizable cause of action:
Joshi
    v. Canadian Imperial Bank of Commerce
, 2018 ONCA 537, at para. 3, leave to
    appeal to S.C.C. refused, [2018] S.C.C.A. No. 273.

[10]

We
    rejected the third ground of appeal, resting in the motion judges failure to
    give reasons why the statements of claim could not be remedied through
    amendment, because sufficient explanation was provided. When she explained that
    even with the most generous readings the statements of claim do not comply with
    the rules and that this significant defect cannot be remedied with an
    amendment the motion judge was not saying that the claims could not be
    remedied because the pleadings are deficient. Read in context, she was saying
    that the pleadings do not have legal merit and cannot sustain a cognizable
    cause of action. That being so, permitting amendment would be pointless.

[11]

The
    appeals are dismissed. Mr. Nikou shall pay costs to the four respondent
    lawyers, Lazaros Karageorgos, Richard C. Belsito, Jack Zwicker and Adam Pantel,
    collectively in the amount of $5,000, inclusive of HST and disbursements. Costs
    are payable to the respondents Stephan Tassopoulos, Efthalia Tassopoulos,
    Vasilios Tassopoulos and Andriana Tassopoulos collectively, in the same amount.

C.W. Hourigan J.A.

B.W. Miller J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Quaggiotto v. Quaggiotto, 2019 ONCA 107

DATE: 20190213

DOCKET: C64965

Pepall,
    Trotter and Harvison Young JJ.A.

BETWEEN

Livio Quaggiotto

Plaintiff

(Respondent)

and

Franco Quaggiotto

Defendant

(Appellant)

Josephine Stark and Tom Serafimovski, for the appellant

Anita Landry and Raymond Colautti, for the respondent

Heard and released orally: February 5, 2019

On appeal from the judgment of Justice Steven Rogin of
    the Superior Court of Justice, dated January 12, 2018.

REASONS FOR DECISION

[1]

This appeal involves an
    unfortunate dispute between two brothers over a codicil executed on August 18,
    2014 by their 87 year old mother, Maria Quaggiotto who died on March 27, 2016.
    The codicil left the residue of her estate to the respondent son Livio. Her
    previous will had divided the residue equally between the respondent and the
    appellant son Franco.

[2]

There was extensive
    evidence in the record that suggested that Mrs. Quaggiottos disposition was
    not motivated by a lack of love for the appellant but by a belief that he was
    in a better overall financial position than the respondent and that the codicil
    would even up the discrepancy between the two brothers.

[3]

Following a 10-day
    trial, the trial judge found in favour of the respondent and upheld the
    validity of the codicil.  The trial judge wrote detailed reasons.  He found
    that the respondent had satisfied his burden of proving due execution of the
    codicil and knowledge of its contents. There were suspicious circumstances but
    the respondent had met his burden of proving testamentary capacity and the respondent
    had successfully rebutted any inference of coercion or undue influence.

[4]

The appellant appeals
    from that decision.  Most of the issues he raises involve factual findings made
    by the trial judge or questions of mixed fact and law to which a standard of
    palpable and overriding error applies.

[5]

We reject the
    appellants submission that the trial judge misapprehended the evidence and
    erred in finding that Mrs. Quaggiotto had knowledge of the contents of her will
    when she executed the codicil.  In particular, he submits that to have
    testamentary capacity, a testator must be aware of the value or magnitude of
    her estate.  He argues that the trial judge found that Mrs. Quaggiotto had a
    general knowledge of her assets, however, this was inadequate to meet the knowledge
    requirement and in any event, there was no evidence that Mrs. Quaggiotto knew
    or was told about the value of her assets.

[6]

We would not give
    effect to this submission.  The factual finding that Mrs. Quaggiotto had
    knowledge of her assets was supported by the evidence.  In support of his
    conclusion, the trial judge relied on the testators knowledge of her holdings
    in the family corporations Blueview and Caboto Construction; the details of
    Mrs. Quaggiottos assets found in the handwritten notes of her solicitors
    assistant, Ms. Kerim. There was also the evidence of Ms. Bartol, a designated
    capacity assessor and practicing geriatric nurse consultant, whose June 6, 2014
    report stated that she was satisfied that Mrs. Quaggiotto knew what her assets
    and her net worth were. Mrs. Quaggiotto knew she was changing the October 27,
    2011 will drawn by her former solicitor, Mr. Corrent.

[7]

Moreover, Mr. Corrent,
    who had met with her on many occasions since September, 2011 including in 2015
    after she had executed her codicil, and who was not sympathetic towards her,
    felt strongly that she was knowledgeable with respect to her assets.  Moreover
    Mr. Maggio and Ms. Kerim reviewed the codicil line by line with Ms. Qauggiotto
    and witnessed her signature. The Codicil described her assets in detail.  Lastly,
    the law does not require that a testator have an encyclopedic knowledge of her
    assets. As stated by Justice Laskin in
Orfus Estate et al. v. Samuel
    and Bessie Orfus Family Foundation
et al., 2013 ONCA 225 at para. 60:

A competent testator does not have to know the precise makeup
    of her estate. She only need know in a general way the nature and extent of her
    property.

[8]

Similarly, we would not
    give effect to the appellants submissions that there was insufficient evidence
    to dispel the suspicious circumstances or that the trial judge imposed too high
    a burden in defining undue influence and in not finding that the respondent and
    his wife, Rosa, had pressured Mrs. Quaggiotto to change her codicil.  Or, that
    he failed to set out the evidence he relied upon.

[9]

Amongst other things,
    Rosa was not present during Mrs. Quaggiottos appointment with Mr. Maggio, Ms.
    Kerim was. Both she and Mr. Maggio gave testimony on Mrs. Quaggiottos
    capacity, instructions, and understanding.  Mrs. Quaggiottos 20-year family
    physician, Dr. Soong, felt she was able to make her own decisions and confirmed
    that she wished to change her will.  He also confirmed much of the evidence
    given by Rosa.  There was no evidence of domination of Mrs. Quaggiottos will
    by that of another:
Scott v. Cousins
[2001] O.J. No. 19, para. 114 or pressure on her such
    that she had no realistic alternative but to submit to it:
Abdollahpour
    v. Banifatemi
, 2015 ONCA 834
    citing
Berdette v. Berdette
(1991), 81 D.L.R. (4
TH
) 194 (O.C.A.).  The negation of any
    inference of coercion or undue influence was also supported by the evidence
    given by Ms. Bartol.  There was sufficient evidence to support the trial
    judges conclusions, he described the evidence relied upon, and there were no
    palpable and overriding errors that infected his conclusions. To the extent
    that the appellant has identified any factual errors, we do not view them as
    overriding.

[10]

Nor did the trial judge
    err in his findings relating to Mr. Maggio. Mr. Maggio wanted an assessment as
    a condition of his retainer. This was his practice with elderly clients and he
    also wanted one due to Mrs. Quaggiottos strong feelings about her new will. In
    preparing the codicil he relied on both Mrs. Quaggiottos verbal instructions
    and her handwritten letter.  Most significantly, the evidence taken as a whole,
    established that Mrs. Quaggiotto had testamentary capacity.

[11]

Lastly, the appellant
    submits that the trial judge improperly relied on the evidence of the
    respondent and Rosa without the requisite corroboration required by s. 13 of
    the
Evidence Act
.

[12]

We disagree.  The trial
    judge was alive to the requirements of s.13.  Furthermore, Mrs. Quaggiottos
    love of both sons and the terms of the general power of attorney for the CIBC
    did not detract from her desire to balance her two sons financial well-being.
    Her intent in this regard was corroborated by the evidence of Mr. Maggio and
    his assistant, Ms. Kerim, is reflected in the codicil she executed, and did not
    simply emanate from the respondent and Rosa.

[13]

For these reasons, the
    appeal is dismissed with costs of $20,000, inclusive of HST and disbursements
    to be paid by the appellant to the respondent.

S.E. Pepall J.A.

G.T. Trotter J.A.

Harvison Young J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These
    sections of
the
Criminal
    Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences:

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read from time to  time before the day on which this
    subparagraph comes into force, if the conduct alleged would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or
    the prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.B.A., 2019 ONCA 124

DATE: 20190220

DOCKET: C65356

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

A.B.A.

Respondent

Jamie Klukach and Candice Suter, for the appellant

Robert Sheppard, for the respondent

Heard: December 20, 2018

On appeal from the acquittal
    entered by Justice Alissa K. Mitchell of the Superior Court of Justice on April
    5, 2018, with reasons reported at 2018 ONSC 2198.

Pardu J.A.:

[1]

The Crown appeals from an
    acquittal of the respondent of sexual assault of his sister-in-law. The
    complainant and the respondent had known each other for some 10-15 years. The complainant
    testified that at a time when the respondent was living apart from his wife
    because of marital problems, he came to her apartment and digitally penetrated
    her vagina, penetrated her vagina and anus with his penis, and forced oral sex
    upon her, all without her consent. She testified that about five days later,
    while she was at her sisters home helping to care for her sisters children,
    the respondent forced oral sex upon her again without her consent.

[2]

The respondent testified and said that the sexual activity between them
    was consensual.

[3]

The Crown submits that the trial judge erred in law by relying on myths
    or stereotypical assumptions about how sexual assault complainants are expected
    to behave in the aftermath of a sexual assault. The respondent submits that
    even if the trial judge did err in her assessment of the complainants
    credibility, the error was immaterial because the trial judge found that the
    respondent was a credible witness. She accepted his evidence that the sexual
    activity was consensual, and this was a solid foundation for the acquittal,
    regardless of the assessment of the complainants credibility.

ANALYSIS

The errors

[4]

The Crowns right of appeal from an acquittal is limited to a question
    of law alone:
R. v. J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R. 197, at para.
    39. While credibility findings are generally insulated from appellate review,
    an error in legal principle affecting that assessment is an error of law:
R.
    v. Luceno
, 2015 ONCA 759, 341 O.A.C. 223, at para. 34.

[5]

Reliance upon stereotypical views about how victims of sexual assault
    would behave is an error of law:
R. v. A.R.J.D.
, 2018 SCC 6, [2018] 1
    S.C.R. 218, at para. 2, affg 2017 ABCA 237, 55 Alta. L.R. (6th) 213.

[6]

In
A.R.J.D.
,
the Alberta Court of Appeal allowed an appeal from an acquittal on charges of
    sexual assault of the accuseds step daughter, aged 11-16 at the time of the
    alleged offences. Although the trial judge cautioned himself against reliance
    upon myths of appropriate behaviour, he reasoned that [a]s a matter of logic
    and common sense, one would expect that a victim of sexual abuse would
    demonstrate behaviours consistent with that abuse or at least some change of
    behaviour such as avoiding the perpetrator.

[7]

The Alberta Court of Appeal described how seeming resort to common
    sense can mask reliance on stereotypical assumptions:

[6] An accuseds right to make full answer and
    defence and the criminal standard of proof beyond a reasonable doubt, do not
    allow reliance on prejudicial generalizations about sexual assault victims;
    this is of paramount importance when adjudicating matters involving child
    complainants. This can happen when juries and the judiciary do not even realize
    they are relying on prejudicial generalizations, leading to the drawing of
    inferences that are not part of the record but are instead, based on their own
    common sense and logic which is, in fact, unfair and inaccurate.

[
7
] Sometimes this impermissible
    form of reasoning is opaque and therefore more difficult to identify and
    correct on appellate review. But this case is an example where the
    impermissible reliance is patent and cannot stand. This appeal represents an
    example of how deeply ingrained and seductive these myths and stereotypes can
    be. In this judicial analysis the trial judge carefully and correctly cautioned
    himself against reliance on certain myths and then proceeded to rely on
    anotherone he obviously did not recognize, and cloaked as it was with the faux
    imprimatur of common sense.

[
8
] In our view, a core
    underlying tension is revealed in this trial judgmentwhether, in assessing the
    complainants credibility, it was proper for the trial judge to rely on what he
    presumed to be the expected conduct of a victim of sexual abuse after an
    assault, and comparing the specific behaviour of the complainant to that
    expectation. We must deal with the issue: is the expectation of avoidant
    conduct or clear behavioural changes by a sexual assault victim a matter of
    logic and common sense, or [is it] just another stereotype, or myth, that cannot
    be supported either as a matter of logic or as an available inference on this
    record?

[
9
] To be clear, reliance on a
    stereotype to found an assessment of credibility bearing on reasonable doubt is
    impermissibleit is an error of law. Accordingly, reasonable doubt is not a
    shield for appellate review if that doubt is informed by stereotypical and
    therefore prejudicial reasoning. Similarly, to suggest that stereotypical
    thinking is merely logic or common sense is a licence for it to continue unmasked
    and unabated. That is why, as a matter of law, this type of reasoning must not
    be insulated from appellate review.

[8]

Here too the trial judge instructed herself that the expectation of how
    a victim of sexual assault will, or should, behave must not be assessed on the
    basis of stereotypes, generalizations and myths: at para. 22. However, she then
    proceeded to adopt a common sense approach and negatively assess the
    complainants credibility based on a lack of correspondence between her
    behaviour and the behaviour one would expect of a person who ha[d] been
    brutally sexually assaulted.

[9]

The trial judge began her credibility analysis with the following
    observation at para. 23:

Unlike the child complainant in
R. v. A.R.D.
,
    [the complainant] is an adult female. From her testimony we learned that she
    suffers from agoraphobia (fear of crowds and public places), post-traumatic
    stress disorder and fibromyalgia. She is on ODSP. However, there was no
    evidence to suggest she is a member of a particularly vulnerable sector of
    society. I have no reason to believe she is unable to care for herself and make
    appropriate decisions called for in the circumstances in order to protect
    herself from harm or further harm.

[10]

Inherent
    in this approach is a comparison of the complainants behaviour to what the
    trial judge viewed was appropriate behaviour that the trial judge would have
    expected of an adult threatened with a sexual assault or a victim of sexual
    assault. The issue here was not what steps the complainant should have taken to
    protect herself, but, rather, whether she consented to sexual activity with the
    respondent.

[11]

The
    complainant testified that she was afraid of the respondent after he sexually
    assaulted her. The trial judge found that the complainants conduct after the
    assault, which included continued association with the respondent and failure
    to flee or call out for help when possible, undermined her evidence, again
    measured against how the trial judge would have reasonably expected her to
    behave. She stated, Aside from the alleged rape, there is no evidence to
    support a finding that her fear existed or if it existed was reasonable in the
    circumstances.

[12]

The
    complainant testified that at times she fought back while at other times she
    acquiesced to the sexual activity out of fear. The trial judge observed,
    Surely, it is one or the other. She is either scared to fight back and tell
    him to stop, or not. Neither behaviour is inconsistent with an absence of
    consent to sexual activity on the complainants part. The trial judge also concluded
    that the complainants submission to the respondents pushing his penis into
    her mouth was consistent with consensual sexual contact and inconsistent with
    non-consensual sexual contact. Again, this reflects an assumption as to how a
    victim of sexual assault would react.

Were the errors material to the verdict?

[13]

To
    overturn an acquittal, it is not enough for the Crown to show that the trial
    judge erred in law. The Crown must also show to a reasonable degree of
    certainty that the verdict would not necessarily have been the same if the
    legal error had not been made or, stated positively, that the verdict might
    have been different had the error not been made. See
Vézeau v. The Queen
,
    [1977] 2 S.C.R. 277, at p. 292;
R. v. B. (G.)
, [1990] 2 S.C.R. 57, at
    pp. 78-79; and
R. v. MacKenzie
, [1993] 1 S.C.R. 212, at p. 247.

[14]

This
    test has been formulated in other ways as well
.
In
R. v. Morin
, [1988] 2
    S.C.R. 345, for example, Sopinka J. affirmed the
Vé
zeau
test,
    and elaborated further at p. 374:

I am prepared to accept that the onus is a heavy
    one and that the Crown must satisfy the court with a reasonable degree of
    certainty. An accused who has been acquitted once should not be sent back to be
    tried again unless it appears that the error at the first trial was such that
    there is a reasonable degree of certainty that the outcome may well have been
    affected by it. Any more stringent test would require an appellate court to
    predict with certainty what happened in the jury room. That it cannot do.

[15]

The Crown does not have to establish that the verdict would necessarily
    have been different. In
R. v. Graveline
, 2006 SCC 16, [2006] 1 S.C.R.
    609, at para. 14, Fish J. for the majority held that the Crown must establish
    that the errors might reasonably be thought, in the concrete reality of the
    case at hand, to have had a material bearing on the acquittal, and elaborated as
    follows:

It has been long established, however, that an
    appeal by the Attorney General cannot succeed on an abstract or purely hypothetical
    possibility that the accused would have been convicted but for the error of
    law. Something more must be shown. It is the duty of the Crown in order to
    obtain a new trial to satisfy the appellate court that the error (or errors) of
    the trial judge might reasonably be thought, in the concrete reality of the
    case at hand, to have had a material bearing on the acquittal. The Attorney
    General is not required, however, to persuade us that the verdict would
    necessarily have been different.

[16]

The
    trial judge acquitted the respondent because she believed his testimony that
    the sexual activity was consensual. In doing so, she gave several reasons for
    believing him which were independent of her assessment of the complainants
    testimony. Importantly, however, her assessment of the complainants
    credibility played a prominent role in her determination of whether to believe
    the respondent.  She acknowledged at para. 21 that the case was not a
    credibility contest but wrote that her assessment of the respondents
    credibility hinged in large part on whether she believed the complainant was
    credible:

The first step of the
W.D.
analysis requires me to assess whether I believe [the
    respondents] evidence on the issue of consent. If I do, I must acquit him. To
    assess the believability of [the respondents] evidence in this regard, I must
    consider his evidence in the context of the evidence [of the complainant]. His
    believability hinges in large part on whether or not I believe [the complainant]
    and find her to be a credible witness.

[17]

The
    trial judge then went on to explain why she did not believe the complainant,
    applying the stereotypical views about how victims of sexual assault should
    behave which have been described above. The trial judges determination that
    she believed the respondent was inextricably linked to her assessment of the
    complainants credibility, which itself was fundamentally affected by legal error.

[18]

Here
    I am satisfied that the verdict might have been different had the legal errors
    not occurred. The errors had a material bearing on the acquittals, that is to
    say, the errors may well have affected the outcome. I am not satisfied that the
    verdict necessarily would have been different but for the errors, but the Crown
    is not required to meet that more stringent test.

[19]

In
    the result, accordingly, I would set aside the acquittal and order a new trial.

G.
    Pardu J.A.

I
    agree J.C. MacPherson J.A.

I
    agree David Brown J.A.

Released: February 20, 2019

JCM


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Augustine, 2019 ONCA 119

DATE: 20190215

DOCKET: C65604

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Augustine

Appellant

Stephen Whitzman, for the appellant

Dominic
    Bell, for the respondent

Heard: February 7, 2019

On appeal from the sentence imposed on June 25, 2018 by
    Justice Joseph Nadel of the Ontario Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1]

On November 1, 2016, the appellant, Andrew
    Augustine, was driving on a two-lane highway. He attempted to pass two vehicles
    driving in front of him. As he pulled out to pass, he saw an on-coming vehicle.
    Although he was able to avoid that vehicle, he collided with another oncoming
    vehicle. That vehicle, in turn, collided head-on with a third vehicle. Three
    occupants in those vehicles sustained serious injuries; all three vehicles were
    considered write-offs. Mr. Augustine was 21 years old at the time.

[2]

Mr. Augustine pleaded guilty to three counts of
    dangerous driving causing bodily harm, contrary to s. 249(3) of the
Criminal
    Code
.

[3]

The Crown and defence put forward a joint
    submission of a suspended sentence, with 30 months probation and community
    service.

[4]

The sentencing judge did not accept the joint
    submission. Instead, he imposed an intermittent sentence of 75 days
    imprisonment, three years probation, 240 hours of community service, a
    five-year driving prohibition, and a DNA order.

[5]

Mr. Augustine seeks leave to appeal his
    sentence. He advances two main grounds of appeal.

FIRST GROUND: THE JOINT SUBMISSION DID NOT
    CROSS THE THRESHOLD FOR REJECTION

[6]

Mr. Augustine submits the sentencing judge erred
    in principle by departing from the joint submission for a non-custodial
    sentence, arguing that the joint submission did not cross the high threshold
    for rejection. We are not persuaded by this argument.

[7]

The test for rejecting a joint submission is set
    out in
R. v. Anthony-Cook
, 2016 SCC 43, [2016]
    2 S.C.R. 204, at paras. 32 and 34:

·

a trial judge should not depart from a joint submission on
    sentence unless the proposed sentence would bring the administration of justice
    into disrepute or is otherwise contrary to the public interest; and

·

a joint submission should not be rejected lightly, as a rejection
    denotes that a submission is so unhinged from the circumstances of the offence
    and the offender that its acceptance would lead reasonable and informed
    persons, aware of all the relevant circumstances, including the importance of
    promoting certainty in resolution discussions, to believe that the proper
    functioning of the justice system had broken down.

[8]

The trial judge gave two reasons why he rejected the joint
    submission. First, he explained that a non-custodial sentence would bring the
    administration of justice into disrepute given the damage [Mr. Augustine]
    caused. Later in his reasons the trial judge stated: I have to impose a
    sanction that I think is appropriate and bearing in mind the damage and the
    injuries to others, I do not think a suspended sentence, even given your youth
    and your contrition, is an adequate remedy given the other factors and
    principles of sentencing.

[9]

The trial judges assessment of the seriousness of the offences
    was supported by the evidence, which showed that the occupants of the other
    vehicles suffered serious injuries:

·

Mr. Evoy suffered multiple rib fractures, a collapsed left lung,
    a crushed sternum in two places, and injuries to one leg. Eight months after
    the collision he still suffered acute pain in his lower back;

·

Ms. Couloigner suffered a perforated bowel that required
    emergency surgery, soft tissue injuries to left knee and lower back and a large
    hematoma to her abdomen;

·

Mr. Knabenschuh, who was in the same car as Ms. Couloigner, suffered
    a fractured sternum, a badly lacerated left forearm, concussion, and bruising.

[10]

Mr. Augustine argues that the sentencing judge
    improperly sourced the information about the victims injuries from the Crowns
    pre-trial conference brief. Although the trial judge did refer in his reasons
    to information about the victims injuries contained in the Crowns judicial
    pre-trial brief, the same information  which was not disputed  was contained
    in the filed victim impact statements, which the trial judge was entitled to
    take into account:
Criminal Code,

s. 722(1).
    In the circumstances, there was no prejudice to Mr. Augustine and we see no
    error.

[11]

As his second reason for rejecting the joint submission, the
    trial judge noted that the principles of denunciation and deterrence are
    relevant to dangerous driving offences committed by a first-time offender and
    otherwise law-abiding citizen, such as the appellant:
R. v. Frickey
,
    2017 ONCA 1024, 22 M.V.R. (7th) 184, at para. 4.

[12]

Taking those reasons together, we see no error in principle in
    the trial judges rejection of the joint submission for a non-custodial
    sentence.

[13]

The trial judge did not accept Mr. Augustines submission in
    support of the joint submission that the Crowns case was not a slam dunk.
    Mr. Augustine contends this amounts to an error. We disagree. The trial judge
    quite properly concluded that in the circumstances this was an obviously
    entertained and entered guilty plea.

SECOND GROUND OF APPEAL: THE SENTENCING PROCESS WAS UNFAIR

[14]

Mr. Augustine submits the procedures followed by
    the sentencing judge were unfair in several respects.

The opportunity to make further submissions

[15]

Mr. Augustine contends that in the circumstances
    the sentencing judge should have afforded counsel the opportunity to make further
    submissions to address his concerns before he passed sentence. That is exactly
    what the sentencing judge did.

[16]

Mr. Augustine entered pleas of guilty at the
    November 3, 2017 hearing. The trial judge was aware that counsel intended to
    make a joint submission for a sentence that would not impose a jail term, and
    at the next attendance on January 24, 2018, he stated that he had told counsel
    he could not countenance a sentence that did not involve some modest amount of
    time in custody. The sentencing hearing was adjourned to June 25, 2018.

[17]

At that hearing, counsel confirmed that
    previously the trial judge had indicated he was bothered by the proposed
    joint submission. Defence counsel stated:

I think its crystal clear that not only have
    you not committed, youve made it clear that you are or were and, I suspect,
    still would be struggling with what the right thing to do is here and we have
    both approached it is in that interim time on that basis.

[18]

Counsel then made their arguments in support of
    the joint submission, including references to the case law. The trial judge
    followed the procedure for entertaining further submissions set out in
Anthony-Cook
.

Opportunity to withdraw guilty pleas

[19]

Mr. Augustine submits that the sentencing judge
    erred by failing to allow him to withdraw his plea:
Anthony-Cook
, at para. 58. In the circumstances, we see no unfairness in the
    process followed by the trial judge.

[20]

As the trial judge noted in his reasons, at the
    judicial pre-trial held before Mr. Augustine entered his pleas, the pre-trial
    judge came to feel that he could not accept a non-custodial sentence. As a
    result, the case was transferred to the trial judge, who advised counsel and
    they were aware that I was not necessarily going to accept their joint
    submission.  The record discloses that Mr. Augustine entered his pleas knowing
    that the trial judge might well not accept the joint submission on sentence.

[21]

Mr. Augustine was represented by counsel
    throughout. At no point during the sentencing process did counsel ask for leave
    to withdraw the guilty pleas. Accordingly, we see no unfairness in the
    procedure followed by the trial judge.

Prejudging the sentence

[22]

At the hearing of the appeal Mr. Augustines
    counsel advanced an argument not made in his factum or identified in his notice
    of appeal. He submitted that statements made by the sentencing judge at the
    January 24, 2018 attendance demonstrated that he had already made up his mind
    about the sentence.

[23]

The January 24, 2018 attendance was to set a
    date for the sentencing hearing. Mr. Augustine appeared through an agent for
    his counsel. During the course of the brief attendance the sentencing judge
    addressed one of the victims, Ms. Couloigner, stating: You may remember that
    there had been a resolution effected in this matter where the Crown was going
    to ask to agree with the defence for a sentence that would not impose jail. I
    told the lawyers, I couldnt countenance that, so this young man is going to
    spend some modest amount of time in custody, undoubtedly.

[24]

We do not accept appeal counsels submission
    that these statements disclose that the sentencing judge had pre-judged the
    case. Mr. Augustines trial counsel did not advance such an objection at the
    June 25, 2018 sentencing hearing. On the contrary, as set out in para. 17
    above, defence counsel confirmed his understanding of the discussions up until
    that time in chambers or on the record, stating that it was crystal clear
    that the trial judge had not committed on the sentence.

DISPOSITION

[25]

For these reasons, Mr. Augustine is granted leave to appeal his
    sentence but his appeal is dismissed.

Robert
    J. Sharpe J.A.
M.L. Benotto J.A.
David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2019 ONCA 153

DATE: 20190226

DOCKET: C65289

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Recardo George Brown

Appellant

James Carlisle, for the appellant

Jeanette Gevikoglu, for the respondent

Heard: February 25, 2019

On appeal from the sentence imposed on May 13, 2015 by
    Justice Graeme Mew of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant received an effective sentence of 6 months, taking into
    account pre-sentence custody, followed by 18 months probation.

[2]

The parties agree that the trial judge was inadvertently misled as to
    the immigration consequences of the sentence.  A sentence of 6 months means the
    appellant cannot appeal a removal order.  A sentence under 6 months allows for
    an appeal.

[3]

On consent, we would vary the effective sentence to 5 months 29 days
    concurrent on all counts.  The probation order stands.

[4]

To be clear, the credit for pre-trial custody (98 day) is included in
    the 5 months 29 days.  The
total
sentence is 5
    months 29 days.