COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2019 ONCA 846

DATE: 20191028

DOCKET: C61373

Juriansz, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Naanan Williams

Appellant

Michael Dineen, for the appellant

John Patton, for the respondent

Heard: September 19, 2019

On appeal from the conviction entered by Justice John A.
    Desotti of the Superior Court of Justice, sitting with a jury, on January 22,
    2015 and the sentence imposed on November 2, 2015.

Juriansz
    J.A.:

[1]

Before it convicted the appellant of second degree murder, the jury
    asked a question that made apparent it had been misled by Crown counsels
    incorrect description of the
mens rea
required for murder. The trial
    judges attempt to clarify the law was inadequate. Therefore, a new trial is
    necessary.

A.

Facts

[2]

The appellant was convicted of second degree murder for killing his
    uncle, Clifford Riley, in a trial before a judge and jury. He appeals from his
    conviction.
[1]

[3]

On June 21, 2012, the appellant and his friend, Denzel Neron, went to
    two parties where they drank heavily and smoked marijuana. They were
    intoxicated.  They entered an unoccupied building owned by the appellants
    family, in which they found the appellants uncle.

[4]

A fight broke out between the three men. The uncle suffered serious
    injuries and died of blunt force trauma to the chest. The appellant and Neron
    gave differing accounts of how the fight unfolded.

[5]

The appellant testified that his uncle pushed him out of the building
    and a fight ensued. The appellant fell, in part because of his intoxication,
    and his uncle got on top of him. Neron intervened, kicked the uncle, and the
    two continued fighting by the side of the road. The fight eventually broke up,
    and the appellant and Neron walked away. The appellant said his uncle cursed at
    them and called them assholes. However, he was inconsistent about whether his
    uncle shouted at them during the fight or after, when they were walking away.

[6]

According to Neron, he and the appellant found the appellants uncle
    asleep on the floor of the unoccupied building. The appellant woke his uncle,
    demanded he get up, and began pushing him out of the building. The three men
    fought until the appellant and Neron knocked the appellants uncle down. As the
    appellant and Neron were walking away, the uncle sat up and began cursing at
    them, calling them assholes. The appellant jogged back, jumped, and stomped
    on the uncles leg, jump stomped on the uncles chest three times and then on
    his collarbone. The uncle went silent and they left. Neron and the appellant
    rode home on a bicycle with Neron on the handlebars.

[7]

Nerons trial testimony substantially contradicted a police statement he
    gave on June 22, 2012, in which he denied any knowledge of the killing. At
    trial, Neron admitted to lying to the police.

[8]

DNA consistent with that of Neron was on a necklace found near the
    uncles body. Gray Vans brand shoes seized from the appellants residence had a
    blood stain on the shoelace with a DNA profile consistent with that of the uncle.
    An expert qualified in footprint comparisons testified that the shoes soles
    could not be excluded as having created impressions on and around the uncles
    body, including a footprint on his chest that may be linked to the fatal
    injury. The appellant and Neron disagreed as to who wore those shoes at the
    time of the killing.

[9]

A video surveillance camera captured two men walking near the location
    of the fight on the night in question. The video showed two men emerging twice
    from the scene of the fight, corroborating Nerons account that, after they
    began to walk away, the appellant had returned to stomp on the uncle before
    they walked away a second time.

[10]

The next day, the appellant went to see a friend who had been out with
    him the night before. The appellant was crying because his uncle had died. When
    the friend revealed that she had heard that the appellant killed his uncle, the
    appellant shook his head and asked her to do me a solid. He told her he was
    naïve and drunk, and the only evidence the police had on him was a shoe. He
    recounted that he did not remember walking home the night before. An
    acquaintance overheard this conversation and testified that the appellant broke
    down and said, Yeah, I fucked up.

[11]

In text messages to another friend, the appellant said, You didnt see
    anything remember just walked home, Stay solid, and we didn[]t do shit.
    He acknowledged that he told both women not to say anything.

[12]

Both the appellant and Neron were arrested and charged with murder.
    Neron accepted a plea agreement that required him to testify against the
    appellant. He pleaded guilty to assault and to being an accessory after the
    fact to murder. He received a four-month sentence.

B.

Issues on Appeal

[13]

The appellant raises five grounds of appeal, one of which he abandoned
    in advance of the hearing. I would allow the appeal on the first ground and
    find it unnecessary to deal with the other three grounds, which raise issues
    that may not arise on the retrial.

[14]

The appellants main submission is that the trial judge, by failing to
    correct a misstatement of the law by the Crown and by failing to provide clear,
    fulsome answers to the jurys questions, permitted the jury to find him guilty
    of murder without being satisfied he had the subjective foresight that his
    uncle might die as a result of his actions.

C.

analysis

(1)

The Crowns Closing Submissions

[15]

In her closing address to the jury, the Crown incorrectly described the
    state of mind necessary to establish murder. She said:

And when you consider the issue of the intent that Mr. Williams
    would have had to have had, or the mental state that he would have had to have
    had to form the intent to kill,
or that he ought to have known his actions
    would cause death
, or was reckless to whether his actions wouldve caused
    death  I think there is significant evidence to prove that in fact Naanan Williams
    did have the necessary state of mind to know what he was doing, to kill his
    uncle, and to know that his actions in stomping his uncle would kill him,
or
    ought to believe that it would likely cause death, or he just didnt, you know,
    put his mind to it. He was reckless to that, okay.
[Emphasis added.]

[16]

After reviewing additional evidence, she repeated:

[A]ll that, that shows that, that Naanan Williams had the state
    of mind that night, had the intent to know that when he stomped or to
that
    he ought to have known that when he stomped on Clifford Riley that action was
    likely to cause his death.
[Emphasis added.]

[17]

These were serious misstatements of the law with respect to the
mens
    rea
for murder. The phrase that he knows or ought to know is likely to
    cause death appeared in s. 229(c) of the
Criminal Code
. The Supreme
    Court of Canada declared that language in s. 229(c) unconstitutional in
R.
    v. Martineau
, [1990] 2 S.C.R. 633 and it has recently been repealed: R.S.,
    2019, c. 25, s. 77. The court made clear in
Martineau
that a murder
    conviction cannot rest on any
mens rea

less than subjective
    foresight of death: at pp. 645-46.

[18]

In any event, s. 229(a), not s. 229(c), best applies to the
    circumstances of this case. Section 229(a) provides:

Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm
    that he knows is likely to cause his death, and is reckless whether death
    ensues or not.

[19]

In
R. v. Cooper
, [1993] 1 S.C.R. 146, at pp. 155-56, the court
    clarified that the
mens rea
for murder under s. 229(a)(ii) of the
Criminal
    Code
requires the Crown to prove beyond a reasonable doubt the accuseds
    (a) subjective intent to cause bodily harm and (b) subjective knowledge that
    the bodily harm is of such a nature that it is likely to result in death.

[20]

Defence counsel did not object and the trial judge did not correct the Crowns
    misstatements immediately. Their effect on the jury and on the fairness of the
    trial must be assessed in the context of the whole trial, and everything the
    jury was told.

(2)

The Trial Judges Instructions

[21]

At the beginning of the trial, the trial judge told the jury it should
    take the law from him. In the course of making this point, he said:

Counsel may also refer to some rules of law to help you
    understand their positions better. It is quite proper for them to do so. What
    counsel say about the law may be correct, but it is my job, as judge, to tell you
    about the law that applies. You must take that law from me.

[22]

In his jury charge, the trial judge gave the jury clear and correct
    instructions on the mental state required for murder. He said:

If you are satisfied beyond a reasonable doubt that Naanan
    Williams unlawfully caused the death of Clifford Riley, you must go onto the
    next question: Did Naanan Williams have a state of mind required for murder?
    The crime of murder requires proof of a particular state of mind for an
    unlawful killing to be murder. Crown counsel must prove that Naanan Williams
    meant either to kill Clifford Riley or meant to cause Clifford Riley bodily
    harm that Naanan Williams knew was likely to kill Clifford Riley, and was reckless
    whether Clifford Riley died or not.

[23]

The trial judge told the jury he would emphasize this instruction by
    repeating it at least half a dozen other times so that the jury got that
    crystal clear in your mind. He did what he said he would. He repeatedly
    emphasized the correct state of mind for murder and told the jury that if they did
    not find that the appellant had that state of mind, their determination should
    be manslaughter.

[24]

However, at this stage, no one, including the trial judge, said anything
    about the Crowns misstatements to the jury that it could convict the appellant
    if he ought to have known his actions would cause death.

(3)

The Jurys Questions

[25]

In the course of its deliberations, the jury asked two questions that
    revealed it was left in confusion by the Crowns closing and the jury
    instructions.

[26]

Three or four hours into its deliberations, the jury posed the question state
    of mind  pre, present and post testimony  which can be used as evidence. The
    trial judge correctly answered the question by instructing the jury that the
    state of mind required was whether the appellant meant to cause Clifford Riley
    bodily harm that Naanan Williams knew was likely to kill Clifford Riley and was
    reckless whether Clifford Riley died or not, or he meant to kill Clifford
    Riley.

[27]

On the morning of the second day of deliberations, the jury asked
    another question that made it obvious it was considering the issue of the
    appellants state of mind in light of the Crowns misstatement of the law. The
    jury sought clarification on the legal meaning of ought to know and reckless
    to the effects of your efforts. The phrase ought to know did not appear in
    any part of the jury charge. Neither counsel nor the trial judge questioned the
    relevance of these terms to a charge of second degree murder. After consulting
    counsel, the trial judge answered the ought to know portion of the question:

There is not any, as far as I am aware, definition from any
    legal context or precedent.  However, ought to know at least piecing that
    together with Blacks Law Dictionary  is a general direction only, but will be
    taken as mandatory if the context requires. Little bit  be under a moral
    obligation, have as a duty, and advised or expected. That is the ought part. The
    know is to possess information, instruction, or wisdom, to perceive,
    apprehend, understand.

[28]

Rather than disabusing the jury of the incorrect standard stated by the
    Crown, this instruction reinforced it. The instruction, in effect, confirmed
    the validity of the Crowns statement and provided the jury with guidance as to
    how to apply the incorrect state of mind in its deliberations.

[29]

The trial judge went on to answer the reckless portion of the jurys
    question. He said:

There is actually a legal direction with respect to reckless
    in a more commonplace expression. So I will give it in the context of which the
    word reckless is used in the charge: saw the likelihood that Clifford Riley
    could die from the injury but went ahead anyway and took the chance. So that is
    the actual formal, legal expression.

[30]

This definition would have been accurate had the trial judge stopped
    there. However, he went on to add:

Then using again the Oxford Dictionary, more expanded version,
    reckless: of a person heedless of consequences of ones actions or of danger,
    incautious, rash, inconsiderate of oneself or another, of an action, behaviour
    characterized as heedlessness or rashness, incautious, careless, wilfully
    careless. That is it. There is no other. There is nothing else that we have
    with respect to those expressions.

[31]

This erroneous instruction was all the more serious because it immediately
    followed the guidance the trial judge had provided about the meaning of ought
    to know. The instruction would have led the jury to understand that it could convict
    the appellant if he ought to have known his uncle would die, or if his
    behaviour met a dictionary definition of reckless that included mere
    carelessness.

[32]

After receiving these instructions, the jury retired at 9:15 a.m. Shortly
    after, the Crown advised the court that she had misstated the law. She alerted the
    court that the jury should not be basing its decision on whether they believed
    that the appellant ought to have known his actions would have resulted in his
    uncles death.

[33]

The jury was recalled at 9:46 a.m. and the trial judge sought to correct
    the misstatement of the law that had been conveyed to the jury and which it was
    evidently considering. The trial judge said:

Ladies and gentlemen, you probably wonder why unceremoniously
    we have brought you back into the courtroom when you have not asked a question.
    It goes back to your previous question, ought to know. There is no such
    definition in the section dealing with second-degree murder. Ought to know is
    not part of your consideration or concern. Any reference to the expression
    ought to know should be struck, deleted from your understanding in terms of
    your deliberations. I say that to you because that expression was used
    unfortunately by Madam Crown Attorney, inadvertently she used the expression
    ought to know. That is not part of the section, all right? So I am asking you
    to delineate, delete, whatever expression you want to do, erase my response to
    the query about ought to know.
Your focus should be on reckless
, which
    is clearly there, and not on that expression. I cannot be more definitive than
    that.  And I am asking you again to disregard that expression. It is not part
    of your deliberations. [Emphasis added.]

[34]

The jury retired at 9:52 a.m. and returned with its verdict at 10:27 a.m.

[35]

The last instruction was intended to salvage the situation by correcting
    the answer given to the jurys question about ought to know. Unfortunately,
    it did not do so fully and correctly. While the trial judge told the jury, clearly
    and emphatically, that ought to know was not the correct standard for the
mens
    rea

for murder, he was wrong to tell the jury its focus should be
    on recklessness. There are two problems with this instruction.

[36]

The first problem is that, half an hour earlier, the trial judge had
    left the jury with a definition of reckless that included carelessness. It is
    likely the broad dictionary definition he gave the jurors would still have been
    fresh in their minds. Considered in the context of that definition, telling the
    jury its focus should be on recklessness was a misdirection.

[37]

The second problem is that the jury should have been told its proper
    focus should be on whether the appellant intended to cause bodily harm to his
    uncle that he knew was likely to result in his uncles death. As Cory J.
    explained in
Cooper
, at pp. 154-55:

The aspect of recklessness can be considered an afterthought
    since to secure a conviction under this section it must be established that the
    accused had the intent to cause such grievous bodily harm that he knew it was
    likely to cause death. One who causes bodily harm that he knows is likely
    to cause death must, in those circumstances, have a deliberate disregard for
    the fatal consequences which are known to be likely to occur.
That is to say
    he must, of necessity, be reckless whether death ensues or not
. [Emphasis
    added.]

[38]

On appeal, the Crown argues that the trial judges multiple repetitions
    of the correct
mens rea
standard for murder meant that the jury must
    have been properly informed when it began its deliberations. I do not accept
    that submission given the question by the jury and the trial judges inadequate
    answer.

[39]

Questions by the jury give the clearest possible indication of the
    particular problem the jury is confronting:
R.
v.
S. (W.D.)
,
    [1994] 3 S.C.R. 521, at p. 528. When the jury submits a question, it must be
    assumed that the jurors have forgotten the original instructions and will base
    their subsequent deliberations on the answer to the question:
S. (W.D.)
,
    at p. 531. The correctness of the original charge cannot excuse an error in the
    answer to the jurys question:
S. (W.D.)
, at p. 530-31.

[40]

In this case the jury repeatedly received correct instructions in the
    main charge. But considering everything the jury was told, I conclude there is a
    real danger that the jury was not left with a proper understanding of the role
    of recklessness in the
mens rea
for murder and that subjective
    foresight of death was required.

D.

Disposition

[41]

The appellants murder conviction cannot be regarded as safe. I decline
    the Crowns invitation to apply the curative proviso under s. 686(1)(b)(iii) of
    the
Criminal Code
. In this case manslaughter, rather than second
    degree murder, was a possible verdict on the Crowns version of the events.

[42]

In conclusion, I would allow the appeal, set aside the conviction, and
    order a new trial.

Released: RGJ OCT 28 2019

R.G. Juriansz J.A.

I agree. S.E. Pepall J.A.

I agree. L.B. Roberts J.A.

[1]
The appellants notice of appeal raises an appeal against sentence, but the
    appellants factum and oral submissions did not include arguments on sentence.
    Given the disposition of this appeal, I regard the sentence appeal as moot.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Xiong, 2019 ONCA 813

DATE: 20191008

DOCKET: C62745

Rouleau, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yongxi Xiong

Applicant

Yongxi Xiong, acting in person

Michael Fawcett, for the respondent

Heard: October 1, 2019

On appeal from the order of Justice David
    Salmers of the Superior Court of Justice, dated September 21, 2016, dismissing
    an appeal from the conviction entered on August 20, 2015 by Justice Joseph A.
    De Filippis of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The applicant was convicted of four counts of
    threatening his professor and his family members. The trial judge provided
    thorough reasons for judgment, making careful credibility findings relating to
    the key witnesses at trial. The trial judge was not required to resolve any
    significant legal issues.

[2]

The applicants appeal to the summary conviction
    appeal court (SCAC) was dismissed. In thorough reasons, that judge concluded
    that the trial judge made appropriate findings of fact and reasonable
    determinations of credibility. He also dismissed the applicants motion to
    adduce fresh evidence, finding that it failed to meet the applicable standard
    for admission.

[3]

The applicant now seeks leave to appeal to this
    court from the decision of the SCAC.

[4]

The applicant has not established a proper basis
    upon which leave to appeal should be granted. We are not persuaded that the
    SCAC judge made any legal errors. He made no errors in dismissing the
    applicants fresh evidence application. Moreover, the applicant has failed to
    persuade us that the issues he raises transcend the facts of his case; the
    appeal does not raise issues of significance to the administration of justice.

[5]

Lastly, the applicants attempt to adduce
    further fresh evidence must fail for the same reasons articulated by the SCAC
    judge  it is not fresh, and it would have no impact on the verdict. In this
    regard, we find the applicants complaint about trial counsels performance to
    be completely without merit.

[6]

The application for leave is refused.


COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Yehya, 2019 ONCA 781

DATE: 20191003

DOCKET: C66029

Juriansz, Benotto and
    Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anwar
    Yehya

Appellant

Najma Jamaldin, for the appellant

Lorna Bolton, for the respondent

Heard and released orally: September 27, 2019

On appeal from the conviction entered on March 8, 2018 by Justice
    P.J. Flynn of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of offences related
    to a home invasion robbery. He appeals and alleges multiple errors in the trial
    judges instructions and charge to the jury.

[2]

The chief submission is that the Crown, in its closing
    submission, invited the jury to speculate that a firearm had been discharged
    from the vehicle that was used to leave the scene of the robbery and that this
    was not corrected by the trial judge.

[3]

We do not accept counsels characterization of
    the Crowns remarks. On our reading, the Crown listed a number of possibilities
    and then clearly told the jury that it did not have to decide an explanation
    for the shell casings in the car. In any event, this was not key evidence.

[4]

The second submission is that the Crown invited
    the jury to draw an impermissible inference: that the appellant came from
    Toronto to commit the offence in Waterloo. We do not accept this submission. The
    Crown could properly draw the jurys attention to the fact that the appellant
    and the four other people in the getaway car were from Toronto. This was just
    one piece of circumstantial evidence.

[5]

The jury charge was adequate on the issue of
    circumstantial evidence because the trial judge instructed the jury that a
    reasonable doubt can arise from a lack of evidence. In any event, this language
    was suggested by the defence counsel at trial and the instruction was
    reinforced by the closing submissions of the defence and the Crown.

[6]

We are satisfied that the jury was properly
    instructed and that the verdict was available on the evidence.

[7]

For these reasons, the appeal is dismissed.

R.G.
    Juriansz J.A.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Reynolds v. Alcohol and Gaming
    (Registrar), 2019 ONCA 788

DATE: 20191002

DOCKET: M50865 (M50864)

Nordheimer J.A. (In Chambers)

BETWEEN

John Reynolds, Carl Ignatius,
    Ekrem Uzunova, Elbahlul Bara, Ilim Uzunova, Olga German, Pietro Greco, Ravino
    Junaev, Ronen Ackernan, Sofia Kuliev and Varant Kichian

Moving Parties

and

Registrar (Alcohol and Gaming
    Commission of Ontario)

Responding Party

Michael Lacy and Scott Dallen, for the moving
    parties

Judie Im, Heather Burnett and Andi Jin, for the
    responding party

Gavin Finlayson, for 2707461 Ontario Inc.

Gregory Azeff, for Najila Guthrie

Robin Linley and Christoper DiMatteo, for Steven
    Cochrane, Gerrit Murray, 11522302 Canada Inc., Ralph Llacar and Michael Hassey

Whitney Abrams for 22008292 Alberta Ltd.

Heard: October 1, 2019

REASONS FOR DECISION

A.

Background

[1]

The moving parties bring this motion on an
    urgent basis seeking a stay of the order of the Divisional Court dated
    September 27, 2019 that lifted an earlier stay that had been granted by that
    court.
[1]

[2]

This matter involves the lottery process
    developed by the Government of Ontario to select a limited number of interested
    persons who may apply for a licence to operate retail cannabis stores. The moving
    parties are part of a group of 42 persons who were selected in the latest
    lottery, held on August 20, 2019, to be able to apply for licences to open such
    stores. After they were selected, the Registrar disqualified the moving parties
    on the basis that they did not provide an irrevocable letter of credit within
    five days of being notified of their selection. The Registrar then selected 11
    new persons from the wait list to assume those available spots.

[3]

The moving parties brought an application for
    judicial review of the Registrars decision to disqualify them. On September 12,
    2019, they sought and obtained an order for a stay of the Registrars decision from
    a single judge of the Divisional Court pending the hearing of the application
    for judicial review. That order effectively froze the licencing process for all
    42 persons. The hearing of the application for judicial review was expedited by
    the Divisional Court such that the judicial review was argued before that court
    on September 25, 2019. On September 27, 2019, the Divisional Court released an
    endorsement dismissing the application for judicial review and lifting the
    stay. The Divisional Court said that the reasons for their decision would be
    provided within ten days. Those reasons, of course, have not yet been received.

B.

Submissions of the Parties

[4]

The moving parties now seek a stay of the
    Divisional Courts decision, which would effectively reinstitute the earlier
    stay, pending their motion for leave to appeal being heard and determined by
    this court. The moving parties say that they can perfect their motion for leave
    to appeal within 24 hours of the receipt of the Divisional Courts reasons and that
    they would also seek to have the determination of their motion for leave to
    appeal expedited. The moving parties contend that any delay resulting from a
    stay in those circumstances will be limited.

[5]

The responding party opposes any further stay
    and argues that the test for a stay is not met. The responding party argues
    that there should not be any further interference with the Governments
    mandated process for selecting persons who will be eligible to apply for
    licences. In that regard, the responding party points to the fact that a stay
    would not only interfere with the processing of the 11 new persons requests
    for licences but also the processing of 29 additional persons requests who
    were part of the lottery process and whose applications are also being held up
    pending the resolution of this matter.
[2]

C.

Analysis

[6]

The test for a stay is well-established. It
    involves the same factors as are involved in the granting of an interlocutory
    injunction:
RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1
    S.C.R. 311. Those factors are:

·

There is a serious issue to be determined;

·

The party seeking the stay will suffer
    irreparable harm if a stay is not granted;

·

The balance of convenience favours the moving
    party.

(1)

Serious Issue to be Determined

[7]

In the somewhat unusual circumstances of this
    case, where I do not have the reasons for the decision of the court below, I am
    somewhat limited in determining the apparent merits of the proposed appeal.
    However, in light of those circumstances, I believe my approach to the first factor
    must be to take it that there is a serious issue to be determined. I draw that
    conclusion not only from the submissions that the parties have made regarding
    the underlying dispute and the issues that were raised on the judicial review
    application but also from the fact that the Divisional Court reserved its
    decision on this matter. While not a significant consideration, I believe that
    I am entitled to draw from that fact that the Divisional Court thought, at the
    very least, that the application raised issues that needed to be addressed.
    That said, I also recognize that, in the view of the Divisional Court, the
    position of the moving parties on those issues was found to be wanting.

[8]

I am satisfied, on that basis, that there is a
    serious issue to be determined, particularly because this is a low threshold
    to meet:
Tisi v. St. Amand
, 2017 ONCA 539, at para. 5.

(2)

Irreparable Harm

[9]

In terms of irreparable harm, I start from the
    proposition that the moving parties are seeking the opportunity to pursue a
    commercial venture. In the usual course, a lost opportunity to pursue a
    commercial venture can be compensated for by way of damages. Further, if the moving
    parties are ultimately successful, and are able to obtain licences, the fact
    that they were precluded from being first to market can also be valued and
    made compensable in damages.

[10]

The moving parties attempt to avoid that result
    by raising an issue as to whether the Registrar, or the Government of Ontario
    itself, can be held liable in damages in these circumstances. They point, in
    particular, to s. 11 of the
Crown Liability and Proceedings Act, 2019,
S.O. 2019, c. 7, Sched. 17, specifically s. 11(2) which reads:

No cause of action arises against the Crown or
    an officer, employee or agent of the Crown in respect of a regulatory decision
    made in good faith, where,

(a) a person suffers any form of harm or loss
    as a result of an act or omission of a person who is the subject of the
    regulatory decision; and

(b) the person who suffered the harm or loss
    claims that the harm or loss resulted from any negligence or failure to take
    reasonable care in the making of the regulatory decision.

[11]

I am not satisfied that this provision would
    exclude Crown liability, if the moving parties can establish that the Registrar
    did not act in good faith in reaching the regulatory decision that he did. On
    that point, it appears to be implicit in the moving parties position, that the
    Registrar knew that the email notifications had not been received by the moving
    parties, that the moving parties are contending that the Registrar acted in bad
    faith in disqualifying them in those circumstances.

[12]

I should add that, on this point, I am assuming
    that the disqualification decision constitutes a regulatory decision as defined
    in the Act, although that may be the subject of some debate in the future. I
    would also note the relevant and significant fact that counsel for the Registrar
    accepts that while the Registrar may not be personally liable for damages,
    because of s. 48(1) of the
Cannabis Licence Act, 2018,
S.O. 2018, c.
    12, Sched. 2, the Crown is still liable pursuant to s. 48(2) if the moving
    parties can eventually prove their claim.

[13]

There is another reality in this case and that
    is that as of July 2020 any person will be able to apply for a licence to
    operate a retail cannabis store:
General
, O. Reg. 468/18, s. 8.3(3).
    The lottery process will be eliminated. Consequently, it is not clear that the moving
    parties, even if they wind up being denied a licence through this current
    process, will not be able to obtain a licence in the future. If that should
    transpire, then the moving parties losses will be limited to the delay in
    entering the market which, I have already pointed out, can be compensated by
    way of damages.

[14]

I would also not rule out the possibility that,
    if the moving parties are ultimately successful in obtaining leave to appeal
    and are successful on the appeal, they may have a remedy by which they could
    compel the responding party to grant them the opportunity to apply for licences.
    That possibility also militates against any finding that the damages involved
    here are irreparable.

(3)

Balance of Convenience

[15]

In terms of the balance of convenience, in my
    view, this factor strongly favours the responding party for at least three
    reasons. First, the Registrar has stipulated the process for awarding the
    opportunity to apply for a limited number of licences in this new market. Courts
    should be loath to interfere with that process, both because the process
    reflects policy choices made by the government, and also because there are
    ramifications for others who have legitimate interests under that process. Many
    of these other persons were not before the Divisional Court nor are they before
    this court.

[16]

Second, there is a public interest component to
    this analysis. There has been a decision made to permit persons to legally purchase
    cannabis. Members of the public, who wish to exercise that opportunity, have a
    very limited scope to do so at the present time given the limits on the retail
    stores that are open. The purpose of this most recent lottery was to increase the
    catalogue of stores that can supply the product and therefore the ability of
    the public to make their purchases. A stay would impede the publics ability to
    do so.

[17]

Third, as I mentioned earlier, the moving
    parties position has already been reviewed by a court and it failed. In those
    circumstances, the moving parties do not proceed from a position of strength in
    seeking to hold matters in abeyance while they seek a further review.

D.

Conclusion

[18]

The three factors against which the granting of
    a stay is to be evaluated should not be considered in isolation, nor are they
    to be weighed on a mathematical basis as to whether more factors fall on one
    side of the decision or the other. The three requirements are not to be
    considered as separate hurdles but as interrelated considerations and the strength
    respecting one criterion may compensate for the weakness of another: see
Longley
    v. Canada (Attorney General)
, 2007 ONCA 149, 223 O.A.C. 102, at para. 15.

[19]

Neither the first or second factors weigh
    strongly in favour of a stay. The balance of convenience weighs heavily against
    a stay. Considering the factors as a whole, the balance favours denying the
    stay. The process that the government has decided on should be permitted to
    proceed. If the moving parties are ultimately successful, they may have a
    remedy, at the very least, in damages.

E.

Disposition

[20]

The motion is dismissed. In the circumstances, I
    would not make any order as to costs.

I.V.B. Nordheimer J.A.

[1]

Counsel
    appeared on this motion on behalf of various persons who had been granted
    intervener status before the Divisional Court. That status expired with the
    conclusion of the Divisional Court proceedings. While those parties have yet to
    seek and obtain intervener status in this court (which arguably has to await
    the moving parties obtaining leave to appeal), given the urgency of this motion,
    and without objection from the parties, I allowed counsel for those persons to
    make brief submissions.

[2]

These 29 persons are part of the total of 42 persons
    selected in the lottery.


COURT OF APPEAL FOR ONTARIO

CITATION: Singh v. Paduraru, 2019 ONCA 817

DATE: 20191010

DOCKET: C66286

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Bhejai Singh

Plaintiff

(Respondent)

and

Anca Paduraru and Everton
    Campbell

Defendants

(Appellants)

Anca Paduraru and Everton Campbell,
    acting in person

Pathik Baxi, for the respondent

Heard: October 9, 2019

On appeal from the order of Justice Michael
    T. Doi of the Superior Court of Justice, dated December 6, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellants appear. They are
    self-represented. They indicate that they wish to withdraw their appeal. They
    have been advised that if we dismiss this appeal as abandoned, this appeal will
    not be heard today, or on any other day, with the result that the motion
    judges decision stands. They indicate they understand these consequences.

[2]

The appeal is dismissed as abandoned.

[3]

Costs of $5,000, inclusive of all applicable taxes,
    payable by the appellants to the respondent.


COURT OF APPEAL FOR ONTARIO

CITATION: Southside
    Construction (London) Limited v. Windsor (City), 2019 ONCA 787

DATE: 20191002

DOCKET: C66141

Juriansz, Benotto and Miller
    JJ.A.

BETWEEN

Southside Construction (London)
    Limited

Plaintiff/Defendant by counterclaim

(Respondent)

and

The Corporation of the City of
    Windsor

Defendant/Plaintiff by counterclaim

and

Montgomery
    Sisam Architects Inc., J.P. Thomson Associates Ltd.
,
    JMR Electric Ltd., Jemini Construction Ltd., Forest City Forming Ltd., Bravo
    Cement Contracting Inc., Artisan Masonry Inc., Prestressed Systems Inc., Plaza
    Ontario Marble & Tile Incorporated, Trend Millwork & Cabinets Inc., D
    & M Glass & Mirror Ltd., Flynn Canada Ltd., and Williams Food Equipment
    Company (1998) Limited and Robson Acoustics & Drywall (2002) Inc.

Third Parties to the
    counterclaim

(
Respondents
)

David B. Williams, for the appellant,
    Keith Bannon

James A. Leber and Eric Grigg, for the
    respondent, Southside Construction (London) Limited

P. John Brunner, for the respondents,
    Montgomery Sisam Architects Inc. and J.P. Thomson Associates Ltd.

Heard and released orally:
    September 23, 2019

On appeal from the order of Justice J.
    Paul R. Howard of the Superior Court of Justice, dated October 16, 2018.

REASONS FOR DECISION

[1]

This is an appeal by the non-party, Keith
    Bannon, from the order dated October 16, 2018 ordering him to attend to be
    examined as a witness in a motion pending before the Superior Court of Justice.
    Mr. Bannon is a lawyer of record for the City of Windsor in the proceedings. An
    appeal of the order by the City would not lie to this court. Counsel advised
    that the City had applied to the Divisional Court for leave to appeal and that
    leave was refused without reasons.

[2]

Counsel for Mr. Bannon did not indicate any
    reason why Mr. Bannon cannot attend the examination or any interest of his that
    would be compromised by his attendance. Rather, the submissions advanced were
    those one would expect to have been made on behalf of the City. In any event, assuming
    the issues raised are properly before us, we see no merit in the submissions
    advanced.

[3]

Counsel acknowledged that the case management
    judge recognized the order was extraordinary. In fact, the case management
    judge carefully considered all the factors set out by this court in
R. v.
    1504413 Ontario Limited
, 2008 ONCA
    253, 90 O.R. (3d) 122
. He proceeded on the basis that an order to
    examine opposing counsel should be avoided wherever possible, and that the
    party seeking such relief must meet an extremely high standard before such an
    order is made. The case management judge set out the history of the proceedings
    in great detail, including the refusal of an earlier application for an order
    that Mr. Bannon be examined, and the unsatisfactory results of the subsequent
    examination of another representative of the City. We are satisfied in the
    circumstances that the case management judge made no error that warrants
    appellate intervention.

[4]

The appeal is dismissed.

[5]

Costs are awarded against the appellant in the
    amount of $15,000, all-inclusive, for each respondent.

R.G. Juriansz J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wright v. Urbanek, 2019 ONCA 823

DATE: 20191017

DOCKET: C66581

Hoy A.C.J.O., van Rensburg and
    Roberts JJ.A.

BETWEEN

John
    (Jack) Wright

Plaintiff (Appellant)

and

Anne
    Urbanek
on her own behalf and as Trustee of the
    Wright Family Trust; as Trustee for the A. Urbanek Family Trust and as Estate
    Trustee for the Estate of Anne Wright,
Jacqueline Strauss
on her own behalf and as Trustee of the Wright Family Trust; as Trustee for the
    J. Strauss Family Trust and as Estate Trustee for the Estate of Anne Wright,
Anjay Limited
, Michael Tibollo, Nina Deluca Ford and
    Jean Carberry

Defendants (
Respondents
)

Gregory M. Sidlofsky and Matthew M.A.
    Stroh, for the appellant

Andrew Finkelstein, for the respondents

Heard: October 8, 2019

On
    appeal from the order of Justice Michael A. Penny of the Superior Court of
    Justice, dated January 15, 2019.

REASONS FOR DECISION

[1]

The appellant appeals the order of the motion
    judge striking his statement of claim and dismissing his action against only the
    respondents, on the basis that it was
res judicata
, a collateral
    attack on the order of Conway J., dated October 7, 2016, and an abuse of
    process. The respondents are the appellants daughters and Anjay Limited.

[2]

In his action, the appellant sought to challenge
    the validity of a family trust that was established in connection with an
    estate freeze involving Anjay Limited that the appellant and his late wife
    instituted in 2007. He argues that the motion judge erred in law, and
    unreasonably extended the application of the principles of
res judicata
,
    collateral attack and abuse of process, by considering that the appellant could
    have raised the issue of the validity of the family trust in response to his
    daughters oppression application. That application resulted in the order of
    Conway J., which, among other things, ordered that the appellant be removed as
    a trustee of the family trust and as an officer and director of Anjay, the
    preference shares of Anjay issued to him on the estate freeze be redeemed, and
    the shareholder loan he made to Anjay be repaid.

[3]

In the alternative, the appellant argues that
    the motion judge erred in principle in refusing to exercise his discretion to
    nonetheless allow his claim to proceed because the appellant has lost
    substantially all of his assets as a result of an estate freeze that he never
    understood or agreed to.

[4]

We are not persuaded that there is any basis for
    this court to interfere with the motion judges order.

[5]

As the motion judge noted:

Four days after [the appellant] lost the
    daughters oppression application, he commenced the Action. Contrary to the
    position that he asserted in the daughters oppression action, (which was a
    fight about how many preference shares in Anjay he held, whether he should be
    removed as trustee of the [family trust] and as a director and officer of Anjay
    and whether his preference shares in Anjay should or should not be redeemed),
    in the Action [the appellant] now alleges that the [family trust] is void and
    that he holds 100% of the common shares of Anjay and holds no preference
    shares.

[6]

The motion judge found that the appellant,
    having lost the daughters oppression application, sought to advance a new and
    inconsistent theory. He observed that, in the oppression application, [i]t
    was entirely open to [the appellant] to advance the position that he did not
    own any preference shares because the [family trust] was not valid.

[7]

As the motion judge observed, the appellant also
    asserted, in an application he commenced in August of 2016 alleging that his
    daughters had acted in a manner that was oppressive, that he owned preference
    shares of Anjay and was not a beneficiary of the family trust. That application
    was initially adjourned and has since been the subject of a motion to strike
    that was granted, which the respondent has separately appealed.

[8]

The doctrine of abuse of process arises out of
    the courts inherent jurisdiction to prevent misuse of the courts procedure in
    a way that would bring the administration of justice into disrepute. It is a
    flexible doctrine unencumbered by the specific requirements of concepts such as
issue estoppel:
Toronto
    (City) v. C.U.P.E., Local 79
, 2003 SCC 63, [2003] 3 S.C.R. 77, at para.
    35. One circumstance in which abuse of process has been applied is to strike
    out an action where the litigation before the court is in essence an attempt to
    relitigate a matter the court has already decided: see
Behn v. Moulton
    Contracting Ltd.
, 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 39-41;
Toronto
    (City) v. C.U.P.E., Local 79
, at paras. 35-38.

[9]

The cause of action challenging the validity of
    the family trust was known to the appellant and could have been pursued by him
    on the oppression application.  Indeed, in their reply factum on the daughters
    oppression application, the daughters noted that the appellant seemed to be
    questioning the validity of the family trust in his factum and responded to
    that assertion. The appellant ultimately did not pursue the issue before Conway
    J.

[10]

Had he done so, and satisfied Conway J. that the
    family trust was invalid, the result of the daughters oppression application
    would clearly have been different. If the family trust were invalid and the
    appellant owned no preference shares, Conway J. would not have ordered the
    redemption of the appellants preference shares. It is unclear what, if any,
    oppression remedy Conway J. would have ordered.

[11]

A challenge to the validity of the family trust
    would interfere with the implementation of Conway J.s order, which was upheld
    on appeal. Raising the issue now is tantamount to relitigating the daughters
    oppression application, which has already been decided. To do so would be to
    misuse the courts procedures in a way that would bring the administration of
    justice into disrepute.

[12]

The doctrine of abuse of process alone warranted
    striking the appellants claim and dismissing his action. Further, there is no
    basis on which to interfere with the motion judges decision not to exercise
    his residual discretion to nonetheless allow the appellants action to proceed
    against the respondents. In response to his argument that he never understood
    or agreed to the estate freeze, we note that the motion judge did not strike
    the action as against the various professional advisors who were retained to
    implement the estate freeze in 2007.

[13]

Given this conclusion, it is unnecessary for us
    to address the appellants other arguments.

[14]

The appeal is dismissed. The respondents are
    entitled to their costs of the appeal, fixed, as agreed, in the amount of $7,500,
    including HST and disbursements.

Alexandra
    Hoy A.C.J.O.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932

DATE: 20191126

DOCKET: M50847 (C67302)

van Rensburg, Paciocco and Thorburn JJ.A.

BETWEEN

Amphenol Canada Corp.

Plaintiff (Respondent/Moving Party)

and

Nandakumar Sundaram, a.k.a. Kumar Sundaram
, Chandra Devappa,

Sundev Technologies Inc.
, MTech Ltd., John Doe, Jane Doe, and other
persons unknown who have conspired with the named Defendants

Defendants (
Appellants/Responding Parties
)

Brendan Wong, for the moving party Amphenol Canada Corp.

Nikolay Y. Chsherbinin, for the responding parties
    Nandakumar Sundaram, a.k.a. Kumar Sundaram and Sundev Technologies Inc.

Heard: November
    20, 2019

REASONS FOR
    DECISION

OVERVIEW

[1]

The appellants,
Nandakumar Sundaram
    (a.k.a. Kumar Sundaram) and Sundev Technologies Inc. (the appellants) have
    brought an appeal
of an order before this court. The order in
    question was an order quashing a motion to set aside prior orders granting a
Mareva
injunction, certificates of pending litigation, and
Norwich
orders (the Quash Order).

[2]

The appellants argue that this court has jurisdiction to hear the appeal
    from the Quash Order because the motion judges order is final, and unless they
    are entitled to appeal the order, they will be forever precluded from being
    heard on the issue of the granting of a
Mareva
injunction and the
    finding that there was a
prima face
case of fraud against them.

[3]

The moving party/respondent, Amphenol Canada Corp. (Amphenol), claims
    there is no right to appeal an interlocutory order to the Court of Appeal and
    any appeal of the Quash Order must be to the Divisional Court pursuant to s.
    19(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. Amphenol
    therefore claims its motion to quash the appeal should be granted.

[4]

After hearing argument on the motion, we quashed the appeal, with
    reasons to follow. These are our reasons.

BACKGROUND

[5]

The underlying action is a claim brought by Amphenol against Nandakumar
    Sundaram, a.k.a. Kumar Sundaram, Chandra Devappa, Sundev Technologies Inc.,
    MTech Ltd., John Doe, Jane Doe, and other persons unknown who have conspired
    with the named defendants. Amphenol claims the defendants perpetrated a fraud
    against them.

[6]

On January 15, 2019, before serving the Statement of Claim, Amphenol
    obtained an
ex parte
order from Akbarali J. against the appellants
    (the Initial Order). The Initial Order included a
Mareva
injunction
    to freeze the assets of the appellants, certificates of pending litigation against
    properties owned by some of the appellants, and
Norwich
orders.

[7]

After issuing the Statement of Claim, Amphenol sought an order to
    continue the injunctive relief.

[8]

On the return date, the appellants did not file affidavit evidence, nor
    did they oppose the continuation of the Initial Order, which was opposed only
    by the defendants Devappa and MTech Ltd.

[9]

On February 4, 2019, Faieta J. granted an order continuing the Initial
    Order against Sundaram, Sundev, and Devappa, but not against MTech Ltd. (This second
    order is referred to as the Continuation Order).

[10]

On February 15, 2019, the appellants brought a motion to set aside
    aspects of the Initial Order and the Continuation Order (the Set Aside
    Motion). Among other things, they took the position that they were entitled to
    bring the Set Aside Motion after having the opportunity to file materials and
    conduct cross-examinations. They claimed this entitlement notwithstanding that
    they had not participated in the motion leading to the Continuation Order. They
    said it is in keeping with the Initial Order, which provided that they may
    apply to the Court at any time to vary or discharge this Order.

[11]

In response, Amphenol brought a motion to quash the Set Aside Motion. On
    July 15, 2019, Faieta J. quashed the Set Aside Motion on the grounds that the
    matter was
res judicata
and an abuse of process (the Quash Order).

[12]

In his reasons, Faieta J. held that,

[A]ll of the conditions for
    establishing issue estoppel have been satisfied. The same question raised by the
    Set Aside Motion, namely whether there is a strong
prima facie
case
    against Sundaram and Sundev and thus whether the initial Order should continue
    against them, was determined at the Continuation Motion. The Continuation Order
    is final.

[13]

On August 12, 2019, the appellants filed a Notice of Appeal, seeking
    leave to appeal the Quash Order.

[14]

On September 25, 2019, Amphenol brought a motion to quash the appeal on
    the basis that this court lacks jurisdiction.

THE ISSUE

[15]

The issue on this motion is whether the Quash Order is an interlocutory
    order requiring an appeal to the Divisional Court pursuant to s. 19(1)(b) of
    the
Courts of Justice Act
, or whether it is a final order properly
    appealed to this court.

ANALYSIS AND CONCLUSION

[16]

We disagree with the appellants assertion that the Quash Order was
    final because they were never given the opportunity to be heard on the
Mareva
injunction and, unless they appeal to this Court, they will be forever
    precluded from a challenge on the merits and will be permanently deprived of a
    substantive right.

[17]

As noted by counsel for Amphenol, the Quash Order did not finally
    determine the real matter in dispute, that is, whether the appellants committed
    fraud. The Initial Order, Continuation Order, and Quash Order were all
    interlocutory decisions, which specifically related to a
Mareva
injunction, certificates of pending litigation, and
Norwich
orders.

[18]

Interlocutory orders do not determine the real matter in dispute
    between the parties  the very subject matter of the litigation, but only a
    collateral issue. The orders may be final in the sense that they determine the
    very question raised by the applications, but they are interlocutory if the
    merits of the case remain to be determined:
Hendrickson v. Kallio
,
    [1932] O.R. 675, at p. 4.

[19]

The characterization of an order depends on its legal nature not its
    practical effect. Accordingly, although the practical effect of quashing a
    motion to set aside an interlocutory injunction may effectively end some part
    of the litigation, the legal nature of such an order remains interlocutory for
    the purposes of appeal:
Ontario Medical Association v. Miller
(1976),
    14 O.R. (2d) 468 (C.A.).

[20]

In this case, while there was no opportunity pending trial to set aside
    the order to continue the
Mareva
injunction, certificates of pending
    litigation, and
Norwich
Orders pending trial, that does not finally
    dispose of whether fraud was perpetrated on Amphenol. While we note that Faieta
    J. accepted that Amphenol satisfied him that there was a
prima facie
case of fraud, that issue was not finally disposed of.

[21]

Moreover, the law is clear that an appeal lies from the order, not the
    reasons for granting the order:
Grand River Enterprises v. Burnham
(2005), 197 O.A.C. 168 (C.A.), at para. 10. As such, the appeal is not from the
    reasons of Faieta J., in which he held that he accepted there was a
prima
    facie
case of fraud.

[22]

This is not a case like
Meisels v. Lawyers Professional Indemnity
    Company
, 2015 ONCA 406, 126 O.R. (3d) 448, where the appellants claim was
    held to be a nullity. Nor is this a case like
Ball v. Donais,
(1993),
    13 O.R. (3d) 322 (C.A.), which involved an appeal from an order determining
    that an action was not statute-barred. Denying an appeal from that order would
    have denied the defendants right to raise the defence that the plaintiff
    failed to sue within the limitation period. In that case, the order was final
    in the sense that it was determinative of the entire action.

[23]

Unlike those cases, the
Mareva
injunction, certificates of
    pending litigation, and
Norwich
orders are imposed
pending
a
    determination of the issues at trial. They do not finally determine the essence
    of the dispute, which is the allegation of fraud. As such, they are
    interlocutory not final orders.

[24]

Interlocutory orders of a single judge of the Superior Court of Justice,
    such as these, must be appealed with leave to the Divisional Court pursuant to
    s. 19(1)(b) of the
Courts of Justice Act
.

[25]

For these reasons, the motion to quash appeal is granted without
    prejudice to the appellants right to seek leave to appeal to the Divisional
    Court.

[26]

Costs payable to the moving party, Amphenol, in the amount of $2,500
    all-inclusive, as agreed by the parties.

K. van Rensburg J.A.

David M. Paciocco
    J.A.

J.A. Thorburn J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE: Bouchard c. Conseil des écoles
    catholiques
    du Centre-Est, 2019 ONCA 922

DATE: 20191122

DOSSIER: C64821

La juge en chef adjointe Hoy et
    les juges Roberts et Harvison Young

ENTRE

Claude
    Bouchard

Appelant

et

Conseil des écoles catholiques
    du Centre-Est et Jason Dupuis

Intimés

Claude Bouchard, en personne

Sébastien Lorquet et Sophie Arseneault,
    pour les intimés

Date de laudience : le 14
    novembre 2019

Décision rendue séance
    tenante.

En appel du jugement de la juge Sally
    Gomery de la Cour supérieure de justice, en date du 5 décembre 2017.

MOTIFS DE LA COUR

[1]

M. Bouchard interjette appel de la décision de
    la juge de procès rejetant son action pour congédiement sans cause contre son
    ancien employeur, le Conseil des écoles catholiques du Centre-Est, et pour
    incitation au bris de contrat contre Jason Dupuis, le directeur de lÉcole secondaire
    catholique Garneau.

[2]

Depuis le 7 mars 2005 jusquà son congédiement, M.
    Bouchard occupait le poste danimateur culturel à lÉcole. Jusquen 2008, M. Bouchard
    recevait des évaluations positives, y compris une plaque de reconnaissance.

[3]

Pourtant, le 16 septembre 2008, le 16 juin 2011,
    le 6 février 2012 et le 6 septembre 2012, M. Bouchard a fait lobjet de quatre
    mesures disciplinaires formelles et progressives, autant que de nombreux autres
    suivis et avertissements au cours des réunions et des échanges de courriel entre
    lui et la direction de lÉcole. Le Conseil a fini par le congédier, alléguant cause
    juste et suffisante.

[4]

Selon le Conseil et la direction de lÉcole, M. Bouchard
    a maintenu sans changement une attitude et un comportement défiant face à ses
    superviseurs, refusant dexécuter certaines tâches assignées et importantes de
    son poste, à savoir, la planification des activités à lÉcole et lexécution des
    activités « flash » à la cafétéria. En outre, ils lui ont reproché à
    maintes reprises, mais en vain, de son manque de professionnalisme et du ton irrespectueux
    quil a utilisé auprès de ses collègues.

[5]

M. Bouchard nie ces accusations, revendiquant quil
    a rencontré tous les attentes et objectifs de son rôle, mais la direction de lÉcole,
    nayant aucune expertise en animation culturelle, les a mal interprétés. Selon
    lui, il sest toujours comporté respectueusement envers ses collègues et la direction
    de lÉcole.

[6]

M. Bouchard soulève plusieurs motifs en appel. À
    notre avis, lissue du pourvoi dépend des
conclusions
    de la juge de procès relatives à des faits prouvés directement et ses
    inférences factuelles, et sur la crédibilité et la fiabilité des témoins. M.
    Bouchard nous demande effectivement de juger à nouveau les conclusions de la
    juge de procès. Pourtant, ce nest pas notre rôle. Les conclusions de la juge
    de procès ne sont susceptibles de révision en appel que selon la norme de
    lerreur manifeste et dominante.
Par conséquent, la question essentielle en
    lespèce est de savoir si la juge de procès a fait une erreur manifeste et
    dominante en arrivant à ses conclusions.

[7]

La juge de procès a
    soigneusement considéré toute la preuve pertinente dune façon juste et
    impartiale. Elle a correctement traité des documents admissibles en preuve. En ce
    qui concerne les divergences entre les parties, elle a clairement expliqué
    pourquoi elle na pas accepté la version dévènements avancée par M. Bouchard
    et pourquoi elle a préféré celle présentée de la part du Conseil et M. Dupuis. Bien
    quelle nait pas retenu le témoignage de M. Bouchard à certains égards, elle a
    bien noté sa sincérité en ce qui concerne sa vision de lanimation culturelle à
    lÉcole. Tout en reconnaissant lexpertise de M. Bouchard comme animateur
    culturel, la juge de procès a néanmoins et justement reconnu que cétait la
    direction de lÉcole qui avait le droit de gérer le travail de M. Bouchard. Le
    jugement de la juge de procès est bien fondé. Nous ne voyons aucune raison dintervenir.

[8]

Lappel est donc rejeté.

[9]

Les dépens au montant de 8 500$, inclusifs de
    tous débours et taxes applicables, sont accordés aux intimés.

« Alexandra
    Hoy j.c.a.o. »

« L.
    Roberts j.c.a. »

« A.
    Harvison Young j.c.a.


COURT OF APPEAL FOR ONTARIO

CITATION:
CBM
    Ready Mix Division
v. 8377278 Canada
    Inc., 2019 ONCA 886

DATE: 20191107

DOCKET: C66571

Simmons, Pardu and Nordheimer JJ.A.

BETWEEN

CBM Ready Mix Division
    a division of St. Marys Cement Inc. (Canada) and St. Marys Cement Inc. (Canada)
    doing business as Canada Building Materials Company

Plaintiffs (Appellants)

and

8377278 Canada Inc.
    operating as Concept Contracting and
Chris Mace

Defendants (
Respondent
)

Jonathan Frustaglio and Nicole Abergil,
for the appellants

Kelli Preston, for the respondent

Heard and released orally: November 5, 2019

On appeal from the order of Justice Jill M. Copeland of
    the Superior Court of Justice, dated January 7, 2019.

REASONS FOR DECISION

[1]

The appellants
appeal from the order
    granted by the motion judge that dismissed the appellants motion seeking a
    declaration that a default judgment previously entered against the respondent,
    Chris Mace, survived his bankruptcy under ss. 178(1)(d) and 178(1)(h) of the
Bankruptcy
    and Insolvency Act
, R.S.C. 1985, c. B-3 (
BIA
).

[2]

We agree with the conclusion reached by the motion judge. The appellants
    obtained a default judgment. Under r. 19.04 of the
Rules of Civil Procedure
,
    R.R.O 1990, Reg. 194, a default judgment may only be signed by the Registrar if
    the claim is for a debt or liquidated demand in money. Rather than asking the
    Registrar to sign a default judgment, a plaintiff can move for default judgment
    under r. 19.05, in which case broader relief may be granted:
Batista v.
    Mason's Masonry Supply Ltd.
, 2014 ONSC 3955, 15 C.B.R. (6th) 157, at para.
    10. However, that is not what the appellants did in this case.

[3]

The result of the process that the appellants utilized is that there is
    no finding that the default judgment involves a claim arising out of fraud,
    embezzlement, misappropriation or defalcation while acting in a fiduciary
    capacity such that it would be covered by s. 178(1)(d) as there were no
    allegations in the statement of claim that could have provided support for any
    such finding. We note that s. 178(1)(h) simply covers a claim for interest
    respecting a claim that is otherwise covered by s. 178(1) so it does not
    provide a separate basis for exemption under s. 178(1).

[4]

The appellants essentially assert that any misapplication of deemed trust
    funds, or failure to account, constitutes a defalcation under s. 178(1)(d).
    That proposition is directly contrary to the decision of this court in
Simone
    v. Daley
(1999), 43 O.R. (3d) 511 (C.A.). Further, the generic pleadings
    in the statement of claim were found by the motion judge to be insufficient to
    provide the basis to find the type of misconduct required for the exemption
    under s. 178(1)(d). We agree. It was not the job of the motion judge to go
    beyond the pleadings and the judgment obtained to make fresh findings of fact:
Lawyers
    Professional Indemnity Company v. Rodriguez
, 2018 ONCA 171.

Fresh evidence

[5]

The appellants sought to introduce fresh evidence consisting of an
    earlier order made by the Superior Court of Justice on behalf of another
    creditor of the respondents. In that case, the order exempted the default
    judgment from the bankruptcy discharge of the respondent Mace.

[6]

We would not admit the fresh evidence. It does not satisfy the
    requirements for the admission of fresh evidence set out in
R. v. Palmer
,
    [1980] 1 S.C.R. 759, especially the requirement that the fresh evidence could
    not, by due diligence, have been adduced at the original hearing. The order
    sought to be introduced was granted on September 19, 2016, well before the
    motion in this case was heard. The mere fact that counsel only became aware of
    it recently, does not satisfy the due diligence requirement.

Conclusion

[7]

We do not see any error in the conclusions reached by the motion judge. The
    appeal is dismissed. Costs are awarded to the respondent, on a partial
    indemnity scale, fixed in the amount of $4,500 inclusive of disbursements and
    HST.

Janet Simmons J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Conners v. D'Angelo, 2019 ONCA 905

DATE: 20191115

DOCKET: C66138

Strathy C.J.O., Doherty and Sharpe JJ.A.

BETWEEN

William Conners

Plaintiff

(Appellant/Responding
    Party)

and

Francesco DAngelo, Vincenza Tartaglia, a.k.a.
    Enza Tartaglia and
Gore Mutual Insurance Company

Defendants

(Respondent/Moving
    Party)

Aliza Karoly, for the appellant

Arthur R. Camporese, for the respondent

Heard: October 30, 2019

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated September 26, 2018, with reasons
    reported at 2018 ONSC 5694.

Strathy C.J.O.:

[1]

The appellant sustained injuries in a motor vehicle accident. He was a
    passenger in a vehicle driven by an unlicensed driver, without the permission
    of the owner. He sued the driver of the vehicle, the owner of the vehicle, and
    the owners liability insurer. He claimed that he was an insured under the
    owners policy issued by the respondent, Gore Mutual Insurance Company, and was
    entitled to uninsured motorist coverage for damages under s. 265(1) of the
Insurance
    Act
, R.S.O. 1990, c. I.8.

[2]

On summary judgment, the motion judge dismissed the appellants claim
    against the insurer. He found that, pursuant to s. 1.8.2 of the standard Ontario
    Automobile Policy (OAP 1), the insurance contract excluded uninsured motorist
    coverage for the appellant because the automobile was operated without the
    owners consent.

[3]

Consequently, the appellants claim under the owners policy was limited
    to certain Statutory Accident Benefits (SABs). Any other claim would have to
    be made to the Motor Vehicle Accident Claims Fund.

[4]

The appellant challenges this conclusion on several grounds, none of
    which I find persuasive. In my view, the disposition of the appeal is governed
    by the decision of this court in
Shipman v. Dominion of Canada General
    Insurance Co.
(2004), 73 O.R. (3d) 144 (C.A.).

[5]

The appellant asserts that he qualifies as an insured under s. 224(1)
    of Part VI (Automobile Insurance) of the
Insurance Act
because, as an
    occupant of the vehicle, he was entitled to receive SABs under the owners
    policy.
[1]

[6]

Having qualified as an insured, the appellant asserts that he also qualifies
    as a person insured under the contract under s. 265(1) and is therefore entitled
    to uninsured motorist coverage. Section 265(1)(a) and (b) provides that:

Every contract evidenced
    by a motor vehicle liability policy shall provide for payment of all sums that,

(a)
a person insured under the contract
is legally entitled
    to recover from the owner or driver of an uninsured automobile or unidentified
    automobile as damages for bodily injuries resulting from an accident involving
    an automobile;

(b) any person is legally
    entitled to recover from the owner or driver of an uninsured automobile or
    unidentified automobile as damages for bodily injury to or the death of
a person insured under the contract
resulting from an
    accident involving an automobile. [Emphasis added.]

[7]

However, this provision is expressly,

subject
    to the terms, conditions, provisions, exclusions and limits as are prescribed
    by the regulations
. [Emphasis added.]

[8]

Thus, even if the appellant does qualify as a person insured under the
    contract, the coverage available can be modified or excluded by regulation.

[9]

One such regulation is R.R.O. 1990, Reg. 676, entitled
Uninsured
    Automobile Coverage
. It has a schedule setting out the terms, conditions,
    provisions, exclusions, and limits applicable to payments under s. 265(1) of
    the
Act
, which are to be attached to or included in every motor
    vehicle liability policy.

[10]

Section 10 of that Regulation, under the heading Application of General
    Provisions, provides:

In so far as applicable,
    the general provisions, definitions, exclusions and statutory conditions as
    contained in a motor vehicle liability policy also apply to payments under the
    contract under subsection 265(1) of the Act.

[11]

In other words, s. 10 provides that, in so far as applicable, an
    exclusion in a motor vehicle liability policy can limit coverage for claimants
    under s. 265(1) of the
Act
.

[12]

This takes me to the OAP 1. The OAP 1 is approved by the Superintendent
    of Financial Services and serves as the standard automobile policy for use by
    automobile owners in Ontario. Section 1.8.2 of the OAP 1, which was relied upon
    by the motion judge, provides:

Except for certain
    Accidents Benefits coverage, there is no coverage (including coverage for
    occupants) under this policy if the automobile is used or operated by a person
    in possession of the automobile without the owners consent or is driven by a
    person named as an excluded driver of the automobile.

[13]

In
Shipman
, this court considered the impact of s. 1.8.2 of the
    OAP 1 on entitlement to coverage under s. 265 of the
Act
. Goudge J.A.
    found that s. 265, Regulation 676, and s. 1.8.2 of the OAP 1 had to be read
    together to determine whether the plaintiff was entitled to coverage under the
    policy. Reading the provisions together, he held that the effect of s. 1.8.2 is
    to exclude coverage for damages for personal injury under the uninsured
    automobile coverage where the operator is in possession of the automobile
    without the owners consent. He also concluded that, based on its language, s.
    1.8.2 is applicable to both occupants of the vehicle and non-occupants. In the
    specific circumstances of that case, while it was agreed that the plaintiff  a
    pedestrian struck and injured by a motor vehicle  was entitled to statutory
    accident benefits under the relevant policy, she was found to be excluded from
    uninsured automobile coverage under s. 265. She was left to resort to the Motor
    Vehicle Accident Claims Fund for coverage.

[14]

Based on the reasoning in
Shipman
, coverage for the appellant
    in this case, an occupant of a vehicle driven without the owners consent, is
    plainly excluded (other than for certain SABs).

[15]

In an attempt to distinguish his case from
Shipman
, the
    appellant relies on two decisions of this court,
Taggart (Litigation
    Guardian of) v. Simmons
(2001), 52 O.R. (3d) 704 (C.A.), leave to appeal
    refused, [2001] S.C.C.A. No. 206, and
McArdle v. Bugler
, 2007 ONCA
    659, 87 O.R. (3d) 433. However, these decisions do not assist the appellant as neither
    involved the operation of a vehicle without consent of the owner and neither considered
    the effect of s. 1.8.2 of the OAP 1.

[16]

The appellant also submits that s. 1.8.2 conflicts with the
Act
and that the coverage provided by the
Act
can only be restricted by
    statute. I do not agree. A submission to substantially the same effect was
    rejected by this court in
Ortiz v. The Dominion of Canada General Insurance
    Co.
(2001), 52 O.R. (3d) 130 (C.A.), at paras. 10-14. There is no conflict
    with the
Act
. The
Act
, the regulation, and the OAP 1 operate
    in harmony.

[17]

For these reasons, I would dismiss the appeal.

[18]

The respondent seeks leave to cross-appeal the motion judges costs
    award of $15,000 for the summary judgment motion.

[19]

Costs awards are discretionary and the test for leave to appeal costs is
    appropriately stringent:
Colistro v. Tbaytel
, 2019 ONCA 197, 145 O.R.
    (3d) 538, at para. 65, leave to appeal refused, [2019] S.C.C.A. No. 173. The
    respondent has not identified strong grounds to find that the motion judge
    erred in exercising his discretion. The motion judge gave appropriate
    consideration to the principle of proportionality and to whether a portion of
    the costs claimed were necessary in the defence of the proceeding.

[20]

I would therefore dismiss the motion for leave to cross-appeal costs.

[21]

I would order costs of the appeal in favour of the respondent, fixed in
    the agreed amount of $7,500, inclusive of disbursements and applicable taxes.

Released: GS  NOV 15 2019

G.R. Strathy C.J.O.

I agree. Doherty J.A.

I agree. Robert J. Sharpe J.A.

[1]
Pursuant to s. 224(1), an insured includes every person who is entitled to
    statutory accident benefits under the contract whether or not described therein
    as an insured person.


COURT OF APPEAL FOR ONTARIO

CITATION: Covenoho v. First Data, 2019 ONCA
    909

DATE: 20191115

DOCKET: C66820

Pepall, Tulloch and Benotto
    JJ.A.

BETWEEN

Joss Covenoho

Plaintiff/ Moving Party

(Appellant)

and

First Data

Defendant/ Respondent

(Respondent)

Joss Covenoho, acting in person

Tudor Carsten, for the respondent

Heard: November 15, 2019

On appeal from the judgment of Justice
    Edward Morgan of the Superior Court of Justice, dated April 15, 2019.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was employed as an Inbound
    Technical Call Centre Agent for just under six months. She was terminated
    without cause from that employment. She commenced proceedings seeking damages reflecting
    18 months notice and millions of dollars in other damages. The summary
    judgment motion judge granted an order awarding the appellant $4,846.92 in
    damages representing pay in lieu of notice and dismissed the rest of her claim.
    He did not order costs in favour of either party.

[2]

This court does not have jurisdiction over this
    appeal. The order is a final order for a single payment of not more than
    $50,000 exclusive of costs and therefore pursuant to s. 19 of the
Courts of
    Justice Act
, an appeal lies to the Divisional Court.

[3]

Accordingly, the appeal is quashed for lack of
    jurisdiction. The appellant shall pay costs of $1500 to the respondent, such
    sum being inclusive of disbursements and applicable tax.


COURT OF APPEAL FOR ONTARIO

CITATION: Firepower Debt GP Inc. v. TheRedPin, Inc., 2019
    ONCA 903

DATE: 20191115

DOCKET: C66336

Lauwers, Fairburn and Zarnett JJ.A.

BETWEEN

Firepower
    Debt GP Inc., as Agent

Applicant (Respondent in Appeal)

and

TheRedPin, Inc. and TheRedPin.Com Realty Inc.

Respondents (Appellants)

Jordan Goldblatt, for the appellant Agents

Jeffrey S. Klein, for the appellant, Certain Underwriters
    of Lloyds of London

Harvey Chaiton, for the respondent, Firepower Debt GP
    Inc.

Aubrey E. Kauffman, for the respondent, Trilogy Growth
    Fund LP

Harry Fogul, for the receiver, MNP Ltd.

Heard: September 27, 2019

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated November 30, 2018, with reasons reported
    at 2018 ONSC 7182.

REASONS FOR DECISION

[1]

At issue in this appeal is whether certain real estate sales commissions
    collected by the receiver of an insolvent brokerage firm are trust funds for the
    real estate salespersons who effected the sales, or form part of the assets of
    the insolvent firm available to its creditors.

[2]

Prior to its insolvency, TheRedPin.Com Realty Inc. (TRP Realty)
    operated a real estate brokerage business registered under the
Real Estate
    and Business Brokers Act
, 2002
, S.O. 2002, c. 30, Sch C. TRP Realtys
    registration entitled it to effect trades in real estate and earn and be paid
    commissions. An important focus of its business was the new and future
    condominium market.

[3]

TRP Realty engaged real estate salespersons (the Agents) to perform
    the listing and selling activities that generated trades in real estate and TRP
    Realtys entitlement to commissions. Under agreements with each of the Agents,
    TRP Realty was required to pay a specified portion of the commissions it earned
    and received to the Agents.

[4]

In June 2018, MNP Ltd. was appointed receiver of TRP Realty as a result
    of its insolvency. The respondents, Firepower Debt GP Inc. and Trilogy Growth
    Fund LP, are secured creditors of TRP Realty.

[5]

At the time of the appointment of the receiver, there were commissions
    to be received by TRP Realty on transactions in new and future condominium
    projects that were scheduled to close at various times through 2023. The Agents
    are owed a portion of those pending commissions (approximately $3.7 million).

[6]

The receiver brought a motion for advice and directions as to whether
    these commissions, when collected, are to be held in trust for the benefit of the
    Agents to the extent of TRP Realtys obligation to pay a portion of them to the
    Agents. If the amount is required to be held in trust, it would be excluded
    from TRP Realtys available assets which are subject to the claims of
    creditors, including the claims of the respondent secured creditors. If the
    amount is not required to be held in trust for the Agents, the Agents claims
    to their share of commissions would be as unsecured creditors in the insolvency,
    ranking behind those of secured creditors.

[7]

Before the motion judge, the parties agreed, as they did before us,
    that: (i) there is no statutory or regulatory requirement to hold the Agents
    commissions in trust; (ii) there is no definitive document that unambiguously
    establishes a trust in favour of the Agents; (iii) a trust may be implied from
    surrounding circumstances, including transaction documents and TRP Realtys conduct;
    (iv) the existence of a trust requires three certainties to be present: subject
    matter, object, and intention; and (v) in the circumstances here, certainty of
    subject matter (the commissions themselves) and certainty of object (TRP Realty
    and the Agents) were present.

[8]

The disagreement between the parties was about certainty of intention
    whether TRP Realty intended to establish a trust in favour of the Agents over
    commissions payable to TRP Realty from condominium transactions.

[9]

The motion judge rejected the claim that there was a trust. He concluded
    that based on the objective evidence I am unable to agree with the Agents that
    the requirement for certainty of intention to create a trust has been
    established. I conclude that the commissions, while clearly a debt owing to the
    Agents, are not held in trust and are, therefore, not excluded from TRP
    Realtys available assets subject to the [secured creditors] security: at
    para. 53.

[10]

The Agents and their insurer appeal.

[11]

The appellants do not dispute the legal test the motion judge
    articulated at paras. 15-16 of his reasons:

Certainty of intent requires that it be clear that the donor or
    settlor intended to create a trust; i.e., that the settlor intended for the
    property in question to be held for the benefit of another. No formal document
    evidencing the creation of a trust is required. Nor is it necessary that the
    settler use any specific language - even the use of the word trust is not
    necessarily dispositive one way or the other. The question is one of substance
    - did the settlor evidence an intention that the property be held by one person
    for another persons benefit? This intention may be express or implied and may
    be determined from words or acts.

Where a trust is to be implied, however,
    effect must be given to inferences as to the intention of the parties which a
    reasonable person would draw from the words or conduct of the parties and not
    to any subjective or other intention which was not made manifest at the time.
    Certainty of intention cannot solely derive from a moral obligation as to what
    is to be done with the property,
Bank of Nova Scotia v. Atcon Group Inc.
2012 NBCA 57 (CanLII), at para. 18 and
Waters Law of Trusts in Canada
(4th ed.) at para. 5.1.

[12]

Rather, the appellants attack the motion judges conclusion of mixed
    fact and law that certainty of intent had not been established. They do so on
    two interrelated bases. First, they submit that the motion judge made errors
    which led him to attach significance to evidence which weighed against the
    existence of the requisite intention on the part of TRP Realty. Second, they
    submit that the motion judge made errors which led him to attach insufficient
    significance to evidence which supported a finding of the requisite intention.

[13]

Turning to the appellants first basis of appeal, the motion judge
    considered the agreements between TRP Realty and the Agents, and TRP Realtys
    financial statements, to be evidence that TRP Realty lacked the intention to
    create a trust.

[14]

The appellants argue that the motion judge erred when he placed weight
    on the fact that the agreements between TRP Realty and the Agents did not contain
    a provision that commissions are to be held in trust by TRP Realty for the
    benefit of the Agents. This, they submit, was an error of law, since a formal
    agreement to hold funds in trust is not necessary for an implied trust to
    arise.

[15]

We do not accept the appellants argument. It is one thing to say that a
    trust may arise without a formal agreement. It is quite another to say that
    where there is a formal agreement that does not provide for a trust, it must be
    ignored when considering whether an intention to create a trust existed. No
    authority for the latter proposition was provided.

[16]

As is apparent from para 15 of his reasons referred to above, the motion
    judge was clearly alive to the point that a formal trust agreement was not
    required. In our view he was entitled to consider, as evidence of whether TRP
    Realty intended to create a trust, the fact that the agreements with each of
    the Agents neither created a trust, nor required that one be created. This was
    especially so given that the agreements specified that they contained the
    entire agreement between the parties. It was for the motion judge to decide
    what weight to put on that evidence.

[17]

The appellants also argue that the motion judge erred when he found that
    TRP Realtys audited financial statements were a clear statement of its
    intention that the pending commissions are not held in trust, and that the
    Agents split of the commissions represented an unsecured debt owing to them.

[18]

The motion judge viewed the financial statements as indicating that TRP
    Realty knew how to say it was holding funds in trust, and that, importantly, it
    made no such statement in the financial statements about the Agents
    commissions.

[19]

The financial statements showed deposits TRP Realty was holding on
    transactions in which it was the listing broker as Restricted cash; notes to
    the financial statements explained these were amounts held in trust as
    required by various purchase and sale agreements. In contrast, balances in TRP
    Realtys commission account  the bank account into which commissions earned by
    TRP Realty were paid and out of which the Agents portion of the commissions
    were paid  were shown as Cash and cash equivalents assets of TRP Realty with
    no indication the funds were held in trust. Moreover, the Agents portion of
    commissions was included on the financial statements as part of TRP Realtys Revenues
    without any indication that any portion of them were held for someone elses
    benefit, and the amounts payable by TRP Realty to Agents for commissions were
    grouped with their salaries and bonuses as TRP Realtys Cost of revenue, not
    as a disbursal of trust funds.

[20]

According to the appellants, the flaw in the motion judges approach was
    that he contrasted only two relevant categories of entries: Agents commissions,
    which were not indicated to be held in trust, and purchasers deposits, which
    were expressly noted as being held in trust. However, there was a third
    relevant category, namely, amounts that were to be paid by TRP Realty to
    Cooperating Brokerages, which the appellants say were unambiguously required to
    be held in trust by TRP Realty, but were not shown in the Restricted cash
    category on the financial statements as amounts being held in trust. The
    appellants argue that it was a palpable and overriding error for the motion
    judge to have overlooked this as it undermines his inference that the financial
    statements were a reliable indicator of what were and were not intended to be
    trust funds.

[21]

We do not accept this argument, for two reasons.

[22]

First, the parties before us did not agree about what TRP Realtys financial
    statements show concerning commissions owed to Cooperating Brokerages. The respondents
    did not agree that such amounts were included in the financial statement
    category of Cash and cash equivalents, that is, as amounts shown as TRP
    Realtys assets rather than as trust funds. Nor were we pointed to any
    breakdown showing an amount representing commissions payable to Cooperating
    Brokerages included in the Cash and cash equivalents category.

[23]

Second, even if the appellants are correct that amounts in TRP Realtys
    hands that were to be paid to Cooperating Brokers were not shown on the
    financial statements as held in trust, this would not materially detract from
    the motion judges point. TRP Realtys financial statements reflected certain
    amounts as held in trust in the Restricted cash category. It did not include
    Agents commissions in that category, and instead showed them as assets of TRP
    Realty in the Cash and cash equivalents category. The financial statements
    were represented by TRP Realty management to its auditors as accurate and not
    misleading. The auditors opined that the statements fairly presented TRP
    Realtys financial position. They were approved by its Board of Directors. The
    motion judge properly treated the financial statements as supporting an
    inference inconsistent with the existence of a certainty of intention that the Agents
    commissions were to be held in trust.

[24]

It may be that a similar inference from a failure to record amounts owed
    to Cooperating Brokerages as being held in trust on the financial statements
    could be overcome, because the evidence that could be mustered to show the
    intention that those funds were held in trust would outweigh the inference. But
    the motion judges essential point here was that the inference was not
    outweighed for Agents commissions, when the evidence that was proffered to
    show the requisite intention that the Agents commissions were to be held in
    trust was considered. He stated, at para. 51:

When weighed against the ambiguous
    inferences sought to be drawn from standard form documents provided by someone
    else (brokerWolf, not TRP Realty), notations included on address lines in bank
    statements and Mr. Gidamys after the fact characterization of the status of
    the commissions (a characterization totally at odds with the representations he
    made to the companys auditors, to the Board of Directors and to entities such
    as the applicant), I am unable to conclude that the requisite intention to hold
    the commissions in the commission account in trust has been established.

[25]

The weighing of evidence is the province of the motion judge. We see no palpable
    and overriding

error in his conclusion that would justify appellate
    intervention.

[26]

We turn to the appellants second basis of appeal, that the motion judge
    did not give appropriate significance to the evidence that was said to support
    a conclusion that TRP Realty intended that the Agents commissions be held in
    trust. This primarily consisted of evidence of the existence and history of a
    separate commission account at TRP Realtys banks, entries on various
    transaction documents, and evidence of TRP Realtys founder given in the
    proceedings below in which he stated his understanding about to whom the
    Agents commissions belonged.

[27]

The motion judge considered this evidence. He concluded it was
    essentially ambiguous.

[28]

The motion judge looked at the history of the bank accounts into which
    commissions were deposited and from which they were paid. He noted that bank statements
    on commission accounts TRP Realty had operated in the past had used the term
    Commission Trust. But, he also noted that the commission account in existence
    most proximate to the receivership had not been opened or named as a trust
    account.

[29]

The motion judge also considered trade record sheets provided to Agents
    by TRP Realty once an agreement and purchase and sale had gone firm. He noted
    these trade record sheets showed the Agents commission split with TRP Realty and
    stated that it constituted a commission trust agreement as set out in the
    contract. The motion judge found that the reference to the contract was to the
    agreements between TRP Realty and the Agents, and that these agreements contained
    no mention of a trust, did not include any requirement to hold Agents
    commissions in trust, and used no language from which a trust obligation or
    intention could reasonably be inferred.

[30]

The motion judge also reviewed an affidavit sworn by TRP Realtys
    founder, Mr. Gidamy. He noted that the affidavit described Mr. Gidamys
    understanding of to whom the Agents commissions belonged, but that this after
    the fact description was inconsistent with objective behaviour at the relevant
    time, including what Mr. Gidamy had represented to TRP Realtys auditors and
    Board of Directors about the financial statements, and what he represented to TRP
    Realtys secured creditors about financial information provided to them, which
    also did not show the Agents commissions as held in trust.

[31]

The motion judge concluded that the ambiguous evidence in favour of the
    trust provided relatively weak indicators of an inference of TRP Realtys
    intention: at para. 48. He concluded that the evidence in favour of the trust was
    outweighed by the absence of a mention of a trust requirement in the agreements
    with the Agents and the representations in TRP Realtys financial statements,
    which were inconsistent with a trust. That weighing of evidence is entitled to
    deference. In our view it involved no palpable and overriding error.

[32]

This conclusion is not altered by the appellants argument that the
    motion judge engaged in speculation when he stated that there were ample
    commercial, accounting and cash tracking and management reasons to direct the
    commissions into a separate account, altogether apart from whether they were
    being held in trust: at para. 52. The appellant argues that there was no
    evidence that these were the reasons for a separate commission account. However,
    as we read the motion judges reasons, he was simply drawing a common-sense
    inference from facts he properly found about the importance of commissions to TRP
    Realtys business and the need to properly account for the Agents commission split,
    which was their remuneration for the services they performed for TRP Realty. A
    separate account does not necessarily imply a trust account, and in our view
    the motion judge did not commit a palpable and overriding error in considering
    the commercial context for a separate account, especially in light of the main
    grounds for his decision as noted above.

[33]

Accordingly, we dismiss the appeal.

[34]

The respondents are entitled to their costs of the appeal which we fix
    in the following amounts: Firepower Debt GP Inc., $20,000; Trilogy Growth Funds
    LP, $6,000. Both amounts are inclusive of disbursements and applicable taxes.

P.
    Lauwers J.A.

Fairburn
    J.A.

B.
    Zarnett J.A.