COURT OF APPEAL FOR ONTARIO

CITATION: Arcari v. Dawson, 2016 ONCA 715

DATE: 20160930

DOCKET: C61273

Hoy A.C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Lynda Arcari

Appellant

and

John A. Dawson

Respondent

Glenn Bogue, for the appellant

Dawn Phillips-Brown, for City of Kitchener and Region of
    Waterloo

Heard:  September 15, 2016

On appeal from the order of Justice Sloan of the Superior
    Court of Justice, dated October 2, 2015.

ENDORSEMENT

[1]

The appellant, Lynda Arcari, was injured when she was struck by a
    vehicle as she crossed the street. She sued the driver of the vehicle.  She moved
    to add the respondents, the City of Kitchener and the Regional Municipality of
    Waterloo, as defendants to the action.  The motion judge dismissed her motion on
    the basis that her claim against the respondents was statute-barred. She
    appeals, and also seeks leave to appeal the motion judges costs disposition.

[2]

For the reasons that follow, we dismiss the appeal of the motion judges
    order dismissing the appellants motion to add the respondents, but grant leave
    to appeal the costs disposition, allow the appeal as to costs, and fix costs of
    the motion below at $10,500, inclusive of HST and disbursements.

Background

[3]

On December 2, 2009, a car struck the appellant, Lynda Arcari, as she
    crossed the street in front of a hospital in the City of Kitchener, beside a
    crosswalk. The appellants original lawyer hired an accident reconstruction
    expert to produce a report about the cause of the accident. This engineer found
    that the drivers speed caused the accident. The appellant sued the driver in
    December of 2010 and her action was set to go to trial in September 2015.

[4]

However, the appellant hired a new lawyer. When he attended at the
    accident scene, it was
obvious
to him, given what he asserted in oral argument to
    be his unique professional experience, that the design and safety features (or
    lack thereof) at the crosswalk were contributing factors to the 2009 accident.
    The appellant accordingly moved to add the respondents, the City of Kitchener
    and the Regional Municipality of Waterloo, as defendants.

[5]

The motion judge observed that the appellants expert attended at the
    accident scene within one year where all of the design features or deficiencies
    were there to be seen, noted and reported on.  The motion judge found that the
    respondents alleged negligence was as close to within the actual knowledge
    of the [appellants] lawyer and engineer as it can come. In his view, it was
    not a case in which discoverability and due diligence could play a role in
    extending the limitation period. He concluded that the appellant ought to have
    known that an act or omission of one of the respondents had contributed to her
    injuries. He awarded the respondents costs, calculated on a substantial
    indemnity scale, in the amount of $14,000.

The Legal Context

[6]

Before addressing the appellants arguments on appeal, it is useful to
    briefly set out the legislative and jurisprudential framework.

[7]

Pursuant to s. 21 of the
Limitations Act
, S.O. 2002, c. 24,
    Schedule B, the clear expiration of a limitation period is an absolute bar to
    the addition of a party to an already existing action:
Joseph v. Paramount
    Canadas Wonderland
, 2008 ONCS 469, at paras. 26-28. Subject to the
    statutory exceptions from the general rule, none of which are at issue in this
    case, that bar arises immediately after the second anniversary of the day the
    claim was discovered (s. 4).

[8]

Section 5 of the
Limitations Act, 2002
, provides as follows:

5.  (1)  A claim is discovered on the earlier of,

(a)     the day on which the person with the claim
    first knew,

(i)      that the injury, loss or damage had
    occurred,

(ii)      that the injury, loss or damage was caused
    by or contributed to by an act or omission,

(iii)     that the act or omission was that of the
    person against whom the claim is made, and

(iv)     that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and

(b)     the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in clause (a).  2002, c. 24, Sched. B, s.
    5 (1).

Presumption

(2)  A person with a claim shall be presumed to have
    known of the matters referred to in clause (1) (a) on the day the act or
    omission on which the claim is based took place, unless the contrary is
    proved.  2002, c. 24, Sched. B, s. 5 (2).

[9]

When a reasonable person with the abilities and in the circumstances of
    the person with the claim ought to have known of the matters described in
    clause 5(1)(a) is a question of fact:
Lima v. Moya
, 2015 ONSC 324, at
    para. 76, affd on appeal 2015 ONSC 3605 (Div. Ct.), at para. 19.

[10]

When
    a plaintiffs motion to add a defendant is opposed on the basis that her claim
    is statute-barred, the motion judge is entitled to assess the record to
    determine whether, as a question of fact, there is a reasonable explanation on
    proper evidence as to why she could not have discovered the claim through the
    exercise of reasonable diligence. If the plaintiff does not raise any
    credibility issue or issue of fact that would merit consideration on a summary
    judgment motion or at trial and there is no reasonable explanation on the evidence
    as to why the plaintiff could not have discovered the claim through the
    exercise of reasonable diligence, the motion judge may deny the plaintiffs motion
    (
Pepper v. Zellers Inc.
(2006)
,
    83 O.R. (3d) 648 (C.A.), at paras. 18, 19, 24).

The Appellants Position Regarding the Discoverability Issue

[11]

The
    appellant argues that the motion judge erred in concluding that she ought to
    have known that an act or omission of the respondents contributed to her
    injuries. She submits that she has a reasonable explanation as to why she could
    not have discovered her claim against the respondents through the exercise of
    reasonable diligence. She hired an expert engineer who did not identify the
    respondents as having contributed to her injuries. Counsel argues that hiring
    the engineer was sufficient due diligence to postpone the limitation date. He
    does not suggest that her expert was negligent. Rather, counsel says that the
    issue was so complex that that it was not even obvious to the engineer,
    although it was to him.

[12]

In
    her factum (but not in her oral submissions), the appellant further argues that
    the motion judge failed to take into account the full extent of her injury in
    assessing discoverability.

Analysis

[13]

We
    reject these arguments.

[14]

There
    is no basis to interfere with the motion judges finding of fact that the
    appellant ought to have known that an act or omission of one of the respondents
    had contributed to her injuries. As we have indicated, counsels submission was
    that it was
obvious
    to him
when he attended the site in 2015
, again, given his unique experience,
that the design and safety features (or lack thereof) at the crosswalk were
    contributing factors to the 2009 accident. He submits that the issue was so
    complex that it was not even obvious to the engineer, although it was to him
    upon a site visit following the accident.

[15]

There
    is no evidence to support this submission, such as evidence from the engineer
    explaining why the issue was not clear to him. As is stated in Paul M. Perell
    & John W. Morden,
The Law of Civil Procedure in Ontario
, 2d ed.
    (Markham, Ont.: LexisNexis, 2014), at para. 2.284: it is incumbent upon the
    plaintiff to lead some evidence of the steps he or she took to ascertain the
    identity of the responsible party and provide some explanation as to why the
    information was not obtainable with due diligence before the expiry of the
    limitations period. We also reject the appellants submission that merely
    retaining an engineer was sufficient to discharge the due diligence
    responsibility and postpone the limitation period indefinitely.

[16]

The
    appellant raised no credibility issue or issue of fact relevant to
    discoverability that would merit consideration on a summary judgment motion or
    at trial.

[17]

Although
    a motion to add defendants is not a motion for summary judgment, the goal of a
    fair process that results in just adjudication of disputes that is
    proportionate, timely and affordable is relevant in this context as well:
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28. It may well be
    that this court should interpret
Pepper

in light of
Hryniak

and re-evaluate the suggestion that
Pepper

sets a strong
    default rule in favour of committing the issue of discoverability to trial.  We
    leave that matter for another day.

[18]

The
    motion judge did not err by not considering the full extent of the appellants injury
    in assessing discoverability. In 2010, the appellant commenced her action
    against the driver, claiming significant injuries to her neck and shoulder.
    Further, she pleaded impairment of her ability to work. It is clear that, at
    that time, she understood that she had damages warranting a lawsuit and that
    her injuries did not impair her ability to appreciate the matters referred to
    in s. 5(1)(a). The fact that she later discovered that her injuries were more
    extensive did not extend the limitation period against the respondents.

Costs Below

[19]

The
    motion judge awarded the respondents costs on a substantial indemnity scale
    throughout. The respondents concede that the appellant did not engage in
    conduct warranting an award of costs against her on a substantial indemnity
    scale. Therefore, we grant leave to and allow the appellants appeal on costs. The
    respondents are entitled to costs on a substantial indemnity scale only from
    the date of their settlement offer.

Disposition

[20]

We
    dismiss the appeal of the motion judges order dismissing the appellants
    motion to add the respondents, but grant leave to appeal the costs disposition,
    allow the appeal as to costs, and reduce the costs of the motion below awarded
    by the motion judge to $10,500, inclusive of HST and disbursements. The
    respondent shall be entitled to costs of the appeal, fixed in the amount of $5,500,
    inclusive of HST and disbursements.

Hoy A.C.J.O.

P. Lauwers J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Boehme (Re), 2016 ONCA 706

DATE: 20160928

DOCKET: C61654

Doherty, Pepall and Hourigan, JJ.A.

IN THE MATTER OF: RALPH BOEHME

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL

CODE

BETWEEN:

THE PERSON
    IN CHARGE OF ONTARIO SHORES CENTRE

FOR
    MENTAL HEALTH SCIENCES

HER
    MAJESTY THE QUEEN

-and-

RALPH
    BOEHME

Erin Dann and J. Shanmuganathan, for the appellant

P. Payne, for Ontario Shores Centre for Mental Health Sciences

Katherine Beaudoin, for the Ministry of the Attorney
    General

Heard: September 22, 2016

On appeal against the disposition of the Ontario Review
    Board dated, January 5, 2016.

ENDORSEMENT

[1]

The
appellant was found not criminally
    responsible (NCR) by reason of mental disorder in August 2011 for uttering
    threats to cause death or bodily harm and failing to comply with a probation
    order. He has been under the care of Ontario Shores Centre for Mental Health Sciences
    (Ontario Shores) since that time.

[2]

The complainant in the index offences, Maureen Barry, managed the
    property where the appellants mother lived up to her death. After his mothers
    death, the appellant got into an on-going dispute with Ms. Barry over his
    mothers belongings. The dispute resulted in multiple criminal charges, including
    harassment charges, and culminated with the index offences.

[3]

After he was found NCR, the appellant was diagnosed with delusional
    disorder and alcohol abuse/dependence disorder. While at Ontario Shores, the
    appellant has complied with his medication regime, taken supervised community
    outings without incident, and completed facility rehabilitative programs.
    However, the appellant contacted Ms. Barry at least twice during this time,
    including once in July 2015 when he sent a letter to the complainants lawyer.

[4]

At his latest Ontario Review Board (ORB) hearing in December 2015, the
    Attorney General and Ontario Shores jointly recommended a detention order with
    a community living privilege. Counsel for the appellant advised that his client
    was seeking a conditional discharge.

[5]

Consistent with the joint position of the parties, the ORB concluded the
    appellant continues to represent a significant threat to public safety, as he continues
    to have active delusions. It further found that the appellant has no insight
    into his illness and no appreciation for the psychological harm caused to the
    complainant by his conduct. The ORB concluded that the necessary and
    appropriate disposition is a detention order with community living privileges.

[6]

The appellant submits the ORB erred in law when it imposed a detention
    order because it applied the wrong legal test. According to the appellant, rather
    than assessing what the least onerous and restrictive disposition was in the
    circumstances, as they are required to do, the ORB started from the premise
    that the appellant had to earn a conditional discharge. It is submitted that
    the ORB further erred by imposing a detention order when a carefully crafted
    conditional discharge could adequately address the threat to public safety represented
    by the appellant.

[7]

We would not give effect to these arguments.

[8]

The ORB applied the correct legal test. It did not start from the
    premise that the appellant had to earn a conditional discharge. Rather, it
    provided clear and cogent reasons why a conditional discharge was not
    appropriate.

[9]

First, it accepted the evidence of the appellants treating psychiatrist
    that Ontario Shores needed to approve the appellants accommodations. The
    doctor had testified that the appellant would otherwise return to his apartment
    if discharged. The psychiatrist is of the view that the appellants risk to
    re-offend would rise if he were placed in the community with little or no
    supervision and that the preferred housing option is a group home.  Therefore,
    approved accommodation was an important risk management tool and supported a
    detention order:
R. v. Simpson
, 2010 ONCA 302.

[10]

Second,
    the ORB also found that Ontario Shores needed to be able to return the
    appellant to the hospital expeditiously in response to decompensation in his
    behaviour.  Given the appellants lack of insight into his mental state, this
    finding was reasonable. While the appellant could be returned upon arrest under
    a conditional discharge, this route is not as expeditious as under a detention
    order, where no police involvement is necessary. It is also in the appellants
    best interests because he would be returned to the hospital and not have to go
    through the court system.

[11]

Third,
    the appellants treating psychiatrist testified that he would expect to see a
    serious decompensation if the appellant stopped taking his medication and that
    this would lead to a greater likelihood of acting out against the victim of the
    index offences. He further testified that the appellant could not be trusted to
    take his medication as prescribed if he was on a conditional discharge. We
    agree that it is a reasonable conclusion that the risk of the appellant being
    non-compliant with his medication regime is reduced if he is subject to a
    detention order.

[12]

In
    our view, the Board acted reasonably in concluding that level of control of the
    appellant necessary in the circumstances could only be accomplished through a
    detention order. Thus the ORBs decision to order the appellants continued
    detention was reasonable, entirely borne out by the evidence, and should not be
    interfered with.

[13]

We
    were invited by counsel for the appellant to consider clarifying paragraph 4(d)
    of the ORBs disposition, which provides: refrain from contact or
    communication, direct or indirect, with Ms. Maureen Barry and Mr. Ron Alltree.
    Counsel suggested that we might amend the order to make clear that the
    prohibition would include contact or communication with Ms. Barrys and Mr.
    Alltrees employees, agents and legal counsel.  In our view, the clarification
    is unnecessary because the reference in the order to indirect contact or
    communication would include these proposed additional parties.

[14]

The
    appeal is dismissed.

Doherty
    J.A.

S.E.
    Pepall J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Colornow Canada Limited v. Rivage Institute of

Advanced Esthetics Inc., 2016 ONCA 661

DATE: 20160908

DOCKET: C61475

Feldman, Simmons and Lauwers JJ.A.

BETWEEN

Colornow Canada Limited

Plaintiff (Respondent)

and

Rivage Institute of Advanced Esthetics Inc.

Defendant (Appellant)

Philip Smith, for the appellant

Terry Corsianos, for the respondent

Heard and released orally: August 23, 2016

On appeal from the judgment of Justice G. Dow of the
    Superior Court of Justice, dated November 19, 2015.

ENDORSEMENT

[1]

The appellant appeals from an order dismissing its motion to set aside a
    default judgment.

[2]

This appeal must be allowed.  In our view, the motion judge erred by
    failing to properly assess the merits of the wrong defendant defence; by
    failing to take proper account of the potential counterclaim for rent and
    breach of trademark; by failing to address the prejudice to the appellant
    arising from the seizure of the trademark; and by failing to attempt to craft
    appropriate conditions on which the action could proceed on the merits.

[3]

Concerning the wrong defendant defence, on the record before us, the
    only payments for the product for which the respondent claims flowed between
    the respondent and a company other than the appellant.  Particularly in the
    absence of a written agreement, this factor supports the position that the
    appellant is not the right defendant.

[4]

As for the potential counterclaim for rent, the motion judge recognized,
    as appears from the record, that the rental premises at issue were rented for
    the benefit of the respondent. The motion judge therefore acknowledged that the
    appellant had had some success in demonstrating that the amount of the default
    judgment was inflated by the respondents claim to be reimbursed for rental
    payments it made. However, what the motion judge failed to acknowledge was that
    the appellant also advances a counterclaim against the respondent for rental payments
    it (the appellant) made. Similarly, the motion judge made no reference to the
    evidence, that after the falling out between the parties, the respondent sold
    its product directly to customers without permission to use the appellants
    trademark.

[5]

In all the circumstances, the appeal is allowed and the default judgment
    and noting of default are set aside on the following conditions:

(1)

payment
    by the appellant of $7,500 of costs of the appeal;

(2)

payment
    by the appellant of $22,000 of costs thrown away;

[6]

The setting aside of the default judgment is conditional on those two
    payments being made within 30 days.

[7]

The other conditions are:

(3)

the
    appellant will file a statement of defence by the end of September, 2016;

(4)

the
    writ of seizure and sale will stay in place; and

(5)

the
    trademark shall be returned to the appellant within 30 days after receipt of
    the payment of the $29,500 costs, failing which the appellant can apply to the
    Superior Court to have the action dismissed.

K. Feldman
    J.A.

Janet
    Simmons J.A.

P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Easson v. Blase, 2016 ONCA 707

DATE: 20160929

DOCKET: C61154

Hoy A.C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Larissa Louise Easson

Applicant (Respondent in Appeal)

and

Friedrich Rudolf Blase

Respondent (Appellant in Appeal)

Stephen Grant and Jenna Preston, for the appellant

Larissa Easson, appearing in person

Heard:  July 21, 2016

On appeal from the order of Justice McWatt of the Superior
    Court of Justice, dated September 18, 2015.

COSTS ENDORSEMENT

[1]

The parties were unable to resolve the issue of costs of the appeal.  We
    have received and reviewed their submissions on this issue.  In all of the
    circumstances, there shall be no order as to costs of the appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Elbehiry (Re), 2016 ONCA 693

DATE: 20160920

DOCKET: C61296

Gillese, Rouleau and Brown JJ.A.

IN THE MATTER OF:  MOHAMED ELBEHIRY

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ian McCuaig, for the appellant

Katie Doherty, for the respondent Crown

Gavin S. MacKenzie, for the Person in Charge of the
    Centre for Addiction and Mental Health

Heard: September 16, 2016

On appeal against the disposition of the Ontario Review
    Board dated, September 24, 2015.

APPEAL BOOK ENDORSEMENT

[1]

By disposition dated September 24, 2015, the appellant was discharged
    subject to conditions that included travel outside of Canada. He was given
    permission to travel to Egypt to visit his mother, who was ill, from September
    15, 2015 to October 31, 2015. He went to Egypt but has not returned.

[2]

As a consequence of his failure to return, when his annual review came
    on for hearing, the Board adjourned it because it had no information on the
    appellants current mental state due to his absence without leave. It then
    issued a warrant for his arrest.

[3]

The appellant has still not returned from Egypt. It will be readily
    apparent that this court does not have the necessary record to properly
    consider this appeal, due to the appellants own actions.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Elmgreen v. Evans, 2016 ONCA 682

DATE: 20160912

DOCKET: C59831

Laskin, Feldman and Hourigan JJ.A.

BETWEEN

Jens Peter Elmgreen

Plaintiff (Appellant)

and

J. William Evans

Defendant (Respondent)

Jens Elmgreen (via teleconference), acting in person

Richard Greene and Michael Zalev, for the respondent

Heard: September 9, 2016

On appeal from the judgment of Justice
Myrna
    L. Lack
of the Superior Court of Justice, dated December 1, 2014.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the reasons of Justice Lack. This appeal has no merit.
    Accordingly, it is dismissed with costs fixed at $5,000, all inclusive.

[2]

Mr. Elmgreens approval of this order is not required.


COURT OF APPEAL FOR ONTARIO

CITATION: Enerzone Inc. v. Ontario (Revenue), 2016 ONCA 717

DATE: 20160930

DOCKET: C61596

Doherty, Cronk and Pepall JJ.A.

BETWEEN

Enerzone Inc.

Appellant (Respondent)

and

The Minister of Revenue

Respondent (Appellant)

Jessica Fiore and Jason DeFreitas, for the respondent (appellant)
    the Minister of Revenue

Sean Flaherty, for the appellant (respondent) Enerzone
    Inc.

Heard and released orally: September 23, 2016

On appeal from the order of Justice J.N. Morissette of
    the Superior Court of Justice, dated December 9, 2015.

ENDORSEMENT

[1]

We are satisfied that the first part of the order dismissing the
    Ministers motion is interlocutory.

[2]

The Minister moved under various rules effectively seeking an order dismissing
    Enerzones appeal on the basis that the scope of the appeal allowed under the
Retail
    Sales Tax

Act
, R.S.O. 1990,
    c. R. 31 (the
Act
)
did not extend to the kinds of challenges put forward by Enerzone in its notice
    of appeal.  The motion judge did not accept the Ministers arguments.

[3]

The question for the purposes of determining whether the order is final or
    interlocutory is this:  Did the motion judge decide the scope of the appeal in
    the sense that the Minister is precluded from raising arguments as to the scope
    of the appeal on the appeal itself, or did the motion judge decide that the
    proper scope of the appeal was arguable and a matter to be determined on the
    appeal itself?  If the former, the order is final.  If the latter, the order is
    interlocutory.

[4]

The motion judges order dismissing the motion simply dismisses the
    motion.  It does not purport to decide anything about the scope of the appeal.

[5]

The reasons of the motion judge are somewhat ambiguous.  Certain paragraphs,
    for example para. 32, read in isolation, offer support for the Ministers
    position that the motion judge did hold that the proper scope of the appeal
    under the
Act
embraced the arguments put forward by Enerzone.

[6]

However, reading the reasons as a whole, together with the terms of the
    order itself, we are satisfied that the motion judges order does not preclude
    the Minister from raising arguments on the appeal as to the scope of the appeal
    itself.  Indeed, counsel for Enerzone frankly acknowledges that the order does
    not foreclose the Minister from renewing the arguments made on the motion on
    the appeal itself.

[7]

Consequently, in our view, the order is interlocutory.  This court has
    no jurisdiction to address the merits of the appeal, and the appeal must be
    quashed.  It is of course left to the Minister to determine whether the
    arguments as to the scope of the appeal should or should not be made on the
    appeal itself.

[8]

As a postscript, we observe that the question whether orders made on
    motions like the motion before the motion judge are final or interlocutory is
    an ongoing problem in this court.  Without intending any criticism of anyone,
    we observe that the problem could be avoided, or at least mitigated, if more
    attention was paid by counsel and motion judges to the language of the orders
    disposing of the motion.  Appropriate language in the order could make it clear
    that the order does or does not purport to finally dispose of a substantive
    issue between the parties.

[9]

The Minister acknowledges that the second part of the order, that is,
    the production order granted by the motion judge in favour of Enerzone, is
    interlocutory and therefore any appeal lies to the Divisional Court with leave
    of that court.  We agree.  A stay of the production order pending appeal must
    similarly be sought from the Divisional Court:  see rule 63.02(1)(b).  We note
    that the Minister has applied to the Divisional Court for leave to appeal from
    both parts of the order before us.  That application, we are informed, is being
    held in abeyance pending the disposition of this appeal.  That disposition has
    now been made.

[10]

Enerzone
    is entitled to its costs of the appeal, fixed at $3,500, including disbursements
    and all applicable taxes.

Doherty J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Goldhar v. Haaretz.com, 2016 ONCA 668

DATE: 20160909

DOCKET: C60259

Simmons, Cronk and Pepall JJ.A.

BETWEEN

Mitchell Goldhar

Plaintiff (Respondent)

and

Haaretz.com, Haaretz Daily Newspaper Ltd.,
    Haaretz Group, Haaretz.Co.Il, Shlomi Barzel and David Marouani

Defendants (Appellants)

Paul Schabas and Emily Bala, for the appellants

William McDowell, Ren Bucholz and Julian Porter, Q.C.,
    for the respondent

Heard: November 10, 2015

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated March 6, 2015, with reasons reported at
    2015 ONSC 1128, 125 O.R. (3d) 619.

COSTS ENDORSEMENT

[1]

In accordance with the parties agreement, the
    appellants shall pay costs to the respondent on a partial indemnity scale fixed
    in the amount of $30,000 inclusive of disbursements and applicable taxes.

Janet Simmons
    J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Iroquois Falls Power Corporation v. Ontario
    Electricity Financial Corporation, 2016 ONCA 687

DATE: 20160919

DOCKET: M46825 (C60286, C60287, C60288, C60289, C60290, C60291)

Hoy A.C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

C60286

Iroquois Falls Power Corporation

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

AND

C60287

Cochrane Power
    Corporation

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

AND

C60288

N-R Power and Energy
    Corporation, Algonquin Power (Long Sault) Partnership and N-R Power Partnership

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

AND

C60289

Kirkland Lake Power
    Corporation

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

AND

C60290

Lake Superior Power
    Limited Partnership, Beaver Power Corporation, Carmichael Limited Partnership
    and Algonquin Power (Nagamami) Limited Partnership

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity
    Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

C60291

AND

Cardinal Power of Canada,
    L.P. and MPT Hydro L.P.

Applicant (Respondent in Appeal/Moving Party)

and

Ontario Electricity Financial Corporation

Respondent (Appellant on Appeal/Respondent on Motion)

J.D. Timothy Pinos, Emily Larose and Stephanie Voudouris,
    for the respondent (appellant on appeal), Ontario Electricity Financial
    Corporation

James D.G. Douglas and Heather K. Pessione, for the applicants
    Iroquois Falls Power Corporation, Cochrane Power Corporation, N-R Power and
    Energy Corporation, Algonquin Power (Long Sault) Partnership and N-R Power
    Partnership and Kirkland Lake Power Corporation

Crawford Smith and Nick Kennedy, for the applicants Lake
    Superior Power Limited Partnership, Beaver Power Corporation, Carmichael
    Limited Partnership and Algonquin Power (Nagamami) Limited Partnership

Glenn Zacher, for the applicants Cardinal Power of
    Canada, L.P. and MPT Hydro L.P.

Heard and released orally: September 13, 2016

On a motion to vary the order of Justice Eileen E.
    Gillese, dated August 5, 2016.

[1]

Ontario Electricity Financial Corporation (OEFC) brings this motion
    under s. 7(5) of the
Courts of Justice Act
to vary the August 5, 2016
    order of Justice Gillese, dismissing its motion to stay a portion of certain
    Superior Court orders pending determination of its application for leave to
    appeal to the Supreme Court of Canada and, if leave be granted, a determination
    of those appeals.  The portions of the orders at issue require OEFC to pay an
    estimated $180 million to the respondents.

[2]

OEFC argues that Justice Gillese made three reviewable errors:

1.  She applied the
    wrong standard in respect of whether OEFCs leave to appeal application to the
    Supreme Court of Canada raised a serious issue to be tried;

2.  Her conclusion
    that OEFC had not established irreparable harm is tainted by palpable and
    overriding error; and

3.  She concluded that
    OEFC had not established that it will suffer greater harm if the stay is refused
    than the respondents will suffer if the stay is granted in the absence of
    evidence from the respondents that, if the stay were refused, and leave to
    appeal to the Supreme Court were subsequently granted, they would be capable of
    repaying the amounts paid to them by OEFC.

[3]

We reject these arguments.

[4]

Justice Gillese properly considered the stringent leave requirements in
    the
Supreme Court Act
in considering the serious issue component of
    the three-part test for obtaining a stay pending appeal.  We agree with the
    reasoning underpinning her conclusion that there is little likelihood that the
    Supreme Court will grant OEFC leave to appeal and that it is unlikely that
    the Supreme Court will grant leave.  Indeed, we would characterize the
    likelihood of leave being granted as remote.

[5]

In our view, OEFC simply seeks to reargue the irreparable harm component
    of the test for obtaining a stay pending appeal.  We see no basis to interfere
    with Justice Gilleses rejection of OEFCs argument that irreparable harm will
    result if the stay is not granted.

[6]

We similarly reject OEFCs third argument.  The onus was on OEFC to
    establish that it would suffer greater harm if the stay were refused than the
    respondents would if the stay were granted.  The respondents did not have the evidentiary
    burden of proving they could repay if leave were granted and the appellant won
    the prospective appeal.

[7]

This motion is accordingly dismissed.  The respondents shall be entitled
    to their costs, fixed in the amount of $8,000, including disbursements and HST.

Alexandra Hoy A.C.J.O.

P. Lauwers J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jenner (Re), 2016 ONCA 711

DATE: 20160927

DOCKET: C61589

Laskin, Gillese and Watt JJ.A.

IN THE MATTER OF:  BARRON JENNER

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen Gehl, for the appellant

Rebecca De Filippis, for the Crown

J. Zamprogna, for the Person in Charge of Southwest
    Centre Forensic Mental Health Care

Heard: September 26, 2016

On appeal against the disposition of the Ontario Review
    Board dated, December 16, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The issue on this appeal is whether the Boards disposition transferring
    the appellant to Waypoint was unreasonable. The appellant maintains that the
    disposition was unreasonable because the evidence does not show the transfer
    was the least onerous and least restrictive disposition.

[2]

We disagree with the appellants position. The evidence, particularly of
    Dr. Desjardins and Mr. MacNeil, supported the Boards disposition. That
    evidence showed that Waypoint would be better able to transition the appellant
    out of seclusion, and to provide the structure that the appellant needs.
    Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Kaptor Financial Inc. v. SF Partnership, LLP, 2016
    ONCA 671

DATE: 20160909

DOCKET: C61642

Feldman, Simmons and Lauwers JJ.A.

BETWEEN

Kaptor Financial Inc., 2025610 Ontario Limited
    and Insignia Trading Inc.

Plaintiffs

and

SF Partnership, LLP, Shore Newman & Rose LLP,
Eric Inspektor
, Lynette Inspektor, Rick Arnone,
    Jack Barkin, Alan Birnbaum, Momir Dejanovic, Harvey Goldberg, Klara Romm,
    Barbara Shuster, Darren Inspektor and Russel Inspektor

Defendants (
Appellant
)

and

Eric Grossman, Steven Uster and the Section 38
    Litigation Committee

Respondents

Eric Inspektor, appellant acting in person

Jeffrey Larry, for the respondents Eric Grossman, Steven
    Uster and the Section 38 Litigation Committee

Heard and released orally: August 25, 2016

On appeal from the judgment of Justice Michael A. Penny
    of the Superior Court of Justice, dated December 3, 2015.

ENDORSEMENT

[1]

The appellant sought leave under s. 215 of the
Bankruptcy and Insolvency
    Act
, R.S.C. 1985, c. B-3,
to
    sue the litigation committee for defamation in respect of a report it sent out
    to the s. 38 litigation participants.

[2]

Penny J. dismissed the motion for leave on two bases: (1) the words used
    do not have a defamatory meaning, and (2) qualified privilege.

[3]

The appellant seeks to introduce fresh evidence on the appeal that the
    report was sent to three people who were not s. 38 participants and to that
    extent, not covered by qualified privilege.

[4]

In our view, the fresh evidence application and the appeal must be
    dismissed. The motion judge made no error in his determination that the words
    complained of are not defamatory in the context of the report. Furthermore, the
    appellant had no reputation to protect in the eyes of the recipients of the
    report.

[5]

We need not address whether the defence of qualified privilege was
    undermined by sending the report to three investors who opted out of the
    litigation under s. 38. However, we note that there was an evidentiary onus on
    the leave applicant to show that there are facts to support his claim. See
GMAC
    Commercial Credit Corporation  Canada v. T.C.T. Logistics Inc
., [2006] 2
    S.C.R. 123, 2006 SCC 35, at para. 57.

[6]

The appeal is dismissed with costs in the agreed amount of $11,000
    inclusive of disbursements and applicable taxes.

K. Feldman
    J.A.

Janet Simmons
    J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Khelifa v. Ontario Corporation Number 1358584
    (Gloucester-Church Mansions Limited), 2016 ONCA 698

DATE: 20160923

DOCKET: C60101

Laskin, Feldman and Hourigan JJ.A.

BETWEEN

Fazia Khelifa

Plaintiff (Appellant)

and

Ontario Corporation Number 1358584, operating as
    Gloucester-Church Mansions Limited and Ontario Corporation Number 479405,
    operating as Sunrise Property Management Limited

Defendants (Respondents)

John Adair and Jeffrey Hernaez, for the appellant

Greg Abogado and Asher Honickman, for the respondents

Heard: September 8, 2016

On appeal from the judgment of Justice Darla A. Wilson of
    the Superior Court of Justice, dated February 13, 2015.

ENDORSEMENT

[1]

The appellant suffered serious personal injury damage when she fell from
    the west fire escape outside her apartment in February 2007. She sued her
    landlord for negligence in failing to maintain the fire escape free from ice
    and snow.

[2]

In comprehensive reasons, the trial judge accepted the evidence of the
    building superintendent and his assistant, who was another tenant in the
    building, that 1) he conducted daily checks of the building, and 2) the west
    fire escape did not require snow or ice removal because the sun melted any snow
    or ice that landed or froze there.

[3]

The trial judge rejected the evidence of the appellant and her roommate
    that there was any ice or snow on the west fire escape that day. There was no
    evidence of ice or snow there other than their statements, and the trial judge
    found they were not credible witnesses, giving a number of reasons for so
    concluding.

[4]

The appellant submits that the trial judge misapprehended the evidence
    of the superintendent regarding whether he made daily inspections of the west
    fire escape. We do not agree. The trial judges finding was an available
    interpretation of the evidence of the superintendent.

[5]

The appellant also challenges the credibility findings of the trial
    judge regarding her roommate, on the basis that the trial judge was influenced
    in her conclusion by an error she made in her apprehension of the evidence of
    another tenant, Ms. Collins. We do not agree. As stated, the trial judge gave a
    number of reasons for rejecting the evidence of the appellant and her roommate
    generally, and specifically on the critical issue of whether there was snow or
    ice on the west fire escape on the day of the fall.

[6]

Ms. Collins evidence was that she did not pay attention to the state of
    the fire escapes. The trial judge viewed her evidence as corroborative of the
    evidence of the assistant superintendent that there was no snow on the fire
    escape. In our view, the evidence of Ms. Collins was not inconsistent with that
    of the assistant superintendent, and as the trial judge rejected the evidence
    of the appellant and her roommate that there was snow for a number of reasons,
    including the photographs, nothing turns on the reference to Ms. Collins
    evidence as corroborative of the evidence that there was no snow.

[7]

There is no basis to interfere with the conclusion reached by the trial
    judge that the standard of care was met. She also found that the fall was not
    caused by ice or snow on the fire escape. Her reasons are cogent and based on
    the record.

[8]

The appeal must be dismissed with costs in the agreed amount of $15,000
    inclusive of disbursements and HST.

John Laskin J.A.

K. Feldman J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Narayanan v. Padathe, 2016 ONCA 708

DATE: 20160927

DOCKET: C62016

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

Ranjit Narayanan

Applicant
(Respondent to the Appeal)

and

Lalita Padathe

Respondent
(Appellant)

Lalita Padathe, acting in person

Tilda M. Roll and Bryan J. Marco, for the respondent

Heard: September 22, 2016

On appeal from the judgment of Justice J. Patrick Moore
    of the Superior Court of Justice, dated March 21, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The appellants motion to change brought in May, 2014, requesting
    spousal support on the basis of a change in circumstances was dismissed by way
    of summary judgment. Instead, the court gave effect to an August 18, 2011
    consent final order that spousal support would be terminated on February 1,
    2014, six months after the appellants expected completion of her studies at
    the end of August, 2013.

[2]

On appeal, the appellant raises four interrelated grounds of appeal: 1)
    the motions judge incorrectly ruled third party letters from her family
    physician and school were inadmissible, 2) incorrectly placed the onus on the
    appellant to adduce expert evidence, 3) erred in finding the claim was
    statute-barred in the sense that it did not comply with the requirements of
    s. 17(10) of the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.), and 4)
    failed to accord procedural fairness to her.

[3]

We would not give effect to the appellants submissions. Even if the
    medical and other evidence put forward by the appellant is admitted, that
    evidence does not meet the requirements of s. 17(10) of the
Divorce Act
.
    In particular, there is no evidence that the alleged worsening of the
    appellants medical condition which affected her functioning at the university
    is related to the marriage. Accordingly, the appeal is dismissed.

[4]

Costs of the appeal to the respondent fixed in the amount of $3,000 all
    inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Quinte West (Municipality) v. Balroop, 2016 ONCA
    657

DATE: 20160906

DOCKET: C58733

Feldman, Simmons and Lauwers JJ.A.

BETWEEN

Municipality of Quinte West

Respondent

and

Shakeel Balroop

Applicant/Appellant

Shakeel Balroop, acting in person

Jennifer Savini, for the respondent

Heard: August 25, 2016

On appeal from the decision of Justice Stephen J. Hunter
    of the Ontario Court of Justice, dated December 12, 2013.

ENDORSEMENT

[1]

On December 11, 2012, the appellant was
    convicted and fined $12,000 for a provincial offence  failing to comply with
    an order to remedy building code deficiencies. He filed a notice of appeal to
    the Ontario Court of Justice in accordance with the
Provincial
    Offences Act
, R.S.O. 1990, c. P 33
    (the Act)
. On December 12, 2013, the date of the
    scheduled appeal, an Ontario Court judge dismissed the appeal.

[2]

On a motion to this court, leave to appeal
    was granted in relation to two issues:

1.

Whether an appeal under s. 116 of the Act may be dismissed for
    failure to perfect, or for delay, in circumstances not authorized by the
Act
or the
Rules
    of the Ontario Court (General Division) and the Ontario Court (Provincial
    Division) in Appeals, under s. 116 of the Provincial Offences Act
, O. Reg. 723/94 (the Rules) passed under the Act; and

2.

Whether an appeal of such a dismissal properly lies to this court,
    with leave, under s. 131 of the
POA
.

[3]

With respect to the first issue, in our view, the municipalitys
    approach in bringing a motion to dismiss the appeal for failure to perfect, or
    for delay added an unnecessary complexity to the appeal proceedings before the
    appeal judge.  In simple terms, the appeal was scheduled to be heard December 12,
    2013 by Hunter J.  The appellant appeared and asked for an adjournment to allow
    him time to order, have prepared and file the remaining transcript. The appeal
    judge refused the adjournment and dismissed the appeal.

[4]

Before reaching his decision, the appeal judge demonstrated his
    conversancy with the decision under appeal and the lengthy process by which the
    appeal came before him. He discovered that the appellant had filed the notice
    of appeal with the court, but did not serve the municipality, which only
    discovered the appeal when it was contacted by the court to schedule the date
    for argument. He learned there was a lengthy delay in ordering the transcripts,
    and the appellant had still not ordered and paid for the remaining transcript as
    of the date of the appeal.

[5]

The appellants manifest delay was plain to the appeal judge, who noted:
    we havent received the transcripts, which had they been ordered and paid for
    properly, would have been here long before today.

[6]

We see no basis to set aside the appeal judges refusal to grant an
    adjournment. It was a discretionary decision. The appeal judges decision to
    deny the adjournment was amply justified on the facts, as was his consequential
    decision to dismiss the appeal.

[7]

To address the first issue directly, the municipalitys notice of motion
    to dismiss the appeal for failure to perfect or for delay was not necessary and
    did not add to the appeal judges inherent jurisdiction to proceed as he did.

[8]

The first issue arises because the appellant failed to file his notice
    of appeal as required and had not ordered all the transcripts. Thus, specific
    provisions of the Act and Rules
[1]
that authorize dismissal did not apply. However, the appeal had been listed for
    hearing and the appellant requested an adjournment. Having decided to deny the
    adjournment, the presiding judge had no option but to dismiss the appeal. Doing
    so was a matter that fell within the jurisdiction of the court to control its
    own process.

[9]

The second issue is fully answered in
R. v. A.E
. 2016, ONCA 243
    at paras. 23, 33-35. Just as a decision to deny an extension of time to
    appeal is a judgment within the meaning of s. 131 of the Act, so is a
    decision to refuse to grant an adjournment and dismiss an appeal for delay or
    failure to perfect. A defendant may appeal a judgment of the Ontario Court of
    Justice to the Court of Appeal, with leave on special grounds.  This is exactly
    what happened here.

[10]

The appeal is dismissed.  We award the municipality $1000 of the costs it
    requested payable by the appellant to the municipality under s. 129 of the
Provincial
    Offences Act,
given the lengthy delays and the proceedings involved in
    this matter. Costs are to be paid within 30 days to the clerk of the trial
    court, pursuant to s. 129 of the
Provincial Offences Act
.

K. Feldman J.A.

Janet
    Simmons J.A.

P.
    Lauwers J.A.

[1]
See s. 128 of the Act and s. 17 of the Rules.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adams, 2016 ONCA 679

DATE: 20160912

DOCKET: C60031

MacPherson, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Herbert Adams

Appellant

Herbert Adams, acting in person

John J. Corelli, for the respondent

Heard: September 6, 2016

On appeal from the conviction entered on August 13, 2014
    and the sentence imposed on January 9, 2015 by Justice Richard J. LeDressay of
    the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submitted a 28 page booklet containing his argument on the
    conviction appeal.  Unfortunately, the booklet is little more than an
    invitation to this court to re-try the case by, in effect, changing the trial
    judges credibility findings for many witnesses, including both Crown and
    defence witnesses.  We cannot do this.  We see no error in the trial judges
    treatment of the various witnesses evidence nor the conclusions he reached.

[2]

Finally, we cannot say that the sentence was unfit.

[3]

The appeal from conviction and sentence is dismissed.

[4]

The appellant shall turn himself in to the Beaver Creek institution
    (minimum security) in Gravenhurst by 5:00 p.m. on Friday, September 9, 2016.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Angelis, 2016 ONCA 675

DATE: 20160913

DOCKET: C56824

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Nick Angelis

Respondent

James V. Palangio, for the appellant

Anthony Moustacalis and Daniel Goldbloom, for the
    respondent

Heard: February 2, 2016

On appeal from the sentence imposed on February 22, 2013
    by Justice Michael Code of the Superior Court of Justice.

Watt J.A.:

[1]

Nick Angelis had a problem. He wanted the best. For himself and for his
    family. But he couldnt afford the lifestyle he coveted. He hit upon a
    solution. Money was available. From different sources. At different times. So
    he took it. All it required was some deceit, a bit of fraud and a few other
    dishonest means.

[2]

But Nick Angelis got caught. And despite that, he did it again.
    Repeatedly. Even while on bail.
Mea culpa
, Nick said. A judge agreed.
    He sent Nick Angelis to the penitentiary. Ordered that he pay restitution for
    some of his victims, but not others.

[3]

At his sentencing hearing, Nick Angelis told the judge that the money
    was all gone. Nothing remained. No proceeds of crime to forfeit. So the Crown asked
    the judge to order Nick Angelis to pay a fine in lieu of forfeiture. The judge refused.

[4]

The Crown appeals.

[5]

The reasons that follow explain why I think the judge got it wrong. I
    would grant the Crown leave to appeal, allow the appeal and require Nick
    Angelis to pay a fine in lieu of forfeiture in the amount of $1,036,750. I
    would give him 10 years to pay that fine and, in default of payment, impose a
    sentence of 10 years to be served consecutively to any other sentence he is
    then serving.

The background facts

[6]

The nature of the appeal, as an appeal from sentence, as well as the
    grounds of appeal advanced, eliminate the need for anything beyond a passing
    reference to the circumstances of the offences. A more detailed reference to
    the sentencing proceedings is necessary however.

The Dayco Fraud

[7]

Nick Angelis was the accounting manager of Dayco Canada Corporation
    (Dayco), a subsidiary of a large American manufacturer of auto parts. Using a
    variety of methods, Angelis acquired cash, goods and services valued at over $900,000
    during a five year period between 2000 and 2006. The full extent of the fraud
    was not determined until 2006. Angelis was arrested on October 30, 2006 and
    released from custody.

[8]

On the sentencing hearing conducted after he pleaded guilty, Nick
    Angelis did not contest the Crowns allegations except as to the quantum of the
    fraud. After a
Gardiner
hearing, the trial judge concluded that the
    amount of the fraud was $936,000: with reasons reported at 2012 ONSC 6086.

The Later Frauds

[9]

Nick Angelis also pleaded guilty to three counts of fraud alleged to
    have been committed during the years 2011 and 2012 while he was on judicial
    interim release on the Dayco fraud. During this period, Angelis was doing
    contract book-keeping and accounting work for different principals. He forged
    authorized signatures on cheques made payable to himself and altered the
    amounts of his own paycheques. The total loss was $100,750.

The Sentences Imposed

[10]

The
    trial judge imposed a sentence that included a term of imprisonment of four
    years, three months, which he reduced to three years after deducting credit for
    pre-disposition custody, and three free-standing restitution orders in favour
    of each of the victims of the lesser frauds, totalling $100,750. The trial
    judge declined to make a restitution order in favour of Dayco whose loss had
    been covered by insurance. He also declined to order restitution to the
    insurer.

The Forfeiture Proceedings

[11]

The
    Crown sought a fine in lieu of forfeiture of $1,036,750.

[12]

The
    Crown contended that it had satisfied the requirements for an order of
    forfeiture. Since it was clear that the proceeds could not be traced because
    Angelis had dissipated them, the discretion to order a fine in lieu of
    forfeiture in the equivalent amount was engaged. No basis existed to invoke the
    limited discretion to refuse the order. Thus, it should be made allowing
    Angelis five years to pay it, in default.

[13]

Nick
    Angelis resisted the Crowns application. He submitted that in light of the
    three free-standing restitution orders, the availability of civil remedies for
    the insurer and the crushing effect of a requirement to pay over one million
    dollars, after release from jail at the age of 50, the circumstances warranted
    the trial judges exercise of his discretion to refuse to make the order. In
    the alternative, Angelis sought an order permitting him to pay the fine in lieu
    of forfeiture over fifty years.

The Reasons of the Trial Judge

[14]

The
    trial judge was satisfied that the Crown had established the requirements for
    an order of forfeiture and that the proceeds had been dissipated. He then
    described the critical consideration in determining whether to exercise his
    discretion to refuse to order payment of a fine in lieu of forfeiture in these
    terms:

Accordingly, the critical consideration when exercising the discretion
    found in Section 462.37(3) is whether a fine in lieu of forfeiture is needed
    to, further the objectives of the provision, or conversely, whether a failure
    to impose such a fine in lieu of forfeiture would, frustrate those statutory
    objectives.

[15]

The
    trial judge characterized the statutory objectives underpinning the discretion
    of s. 462.37(3) as twofold:

i.

to deprive the offender of the proceeds of his or her crime; and

ii.

to deter the offender from future crime by showing that crime does not
    pay.

The trial judge then framed the central issue before
    him as whether these purposes have already been substantially achieved by other
    means.

[16]

The
    trial judge pointed out that most of the leading cases decided under the
    forfeiture provisions of the
Criminal Code
did not examine the
    interplay between forfeiture and restitution orders. He described the statutory
    purpose of restitution orders as preventing an accused from profiting from
    crime and providing a concurrent, rapid and inexpensive means of recovery for
    the victims of those crimes. He then turned to the effect of the overlap in
    statutory terms and objectives on the exercise of his discretion not to impose
    a fine in lieu of forfeiture:

Given these substantially overlapping statutory terms and
    objectives, I am satisfied that there will be cases where the
Lavigne
discretion to not impose a fine in lieu of forfeiture, will be properly
    exercised where the objectives of such an order have already been attained by
    other parallel procedures such as a restitution order. It is also settled law,
    again pursuant to
Devgan
,
supra
, and
Castro
,
supra
,
    that restitution or compensation orders, should not be used as a substitute
    for civil proceedings, and that these criminal law restitution orders do not
    displace the civil remedies necessary to ensure full compensation, in
    circumstances where those civil remedies are more appropriate.

[17]

In
    reaching his conclusion declining to impose a fine in lieu of forfeiture, the
    trial judge considered several factors:

i.

full restitution orders in relation to three victims deprived Angelis of
    the profits of those crimes and provided the victims with a speedy and convenient
    means to recover their losses;

ii.

no restitution was ordered for the fraud on Dayco because an inevitably
    successful civil claim for the amount was filed in the Superior Court of
    Justice;

iii.

payment of a restitution order in connection with the Dayco fraud would
    have a detrimental impact on Angelis rehabilitation; and

iv.

the forfeiture provisions are intended to work harmoniously with the
    other sentencing provisions of the
Criminal Code
.

[18]

The
    Crown conceded that any payments made pursuant to a fine in lieu of forfeiture
    should be credited to the restitution orders made by the trial judge. The Crown
    also pointed out that any failure on Angelis part to pay off the fine in lieu
    within the time allowed  suggested as five years  would likely result in
    termination of the order because a judge would refuse to issue a warrant of
    committal. Of this, the trial judge observed:

The alternative would be to give Angelis 50 years, or the rest
    of his life, to pay the $1,000,000 fine in lieu of forfeiture. I would question
    the utility of an Order that simply channels money to an already existing
    restitution Order through administrative means, and that is either terminated
    after five years of doing this, or that is extended for the rest of the payors
    natural life. None of this would seem to engender respect for court orders, and
    some of it is simply redundant.

[19]

The
    trial judge concluded that it was a proper case for the exercise of discretion,
    pursuant to s. 462.37(3), not to order a fine in lieu of forfeiture.

The Grounds of Appeal

[20]

The
    Crown advances four grounds of appeal. The Crown says that the trial judge erred
    in considering:

i.

the general principles of sentencing;

ii.

the effect a fine in lieu of forfeiture would have on the rehabilitative
    prospects of Nick Angelis and his ability to pay the restitution orders;

iii.

the availability of civil proceedings as a means of satisfying the
    objectives of the forfeiture provisions of the
Criminal Code
; and

iv.

effectively, if not expressly, Angelis present ability to pay a fine in
    lieu of forfeiture,

in concluding not to impose a fine in lieu of
    forfeiture.

[21]

I
    will consider each ground of appeal in its turn, adding any additional factual
    details before summarizing the positions of counsel on appeal and the governing
    principles, then applying those principles to reach my conclusion. But first, a
    brief pause to consider the standard of review.

The Standard of Review

[22]

An
    order made under s. 462.37, including an order refusing to direct payment of a
    fine in lieu of forfeiture under s. 462.37(3), is a sentence within s. 673 of
    the
Criminal Code
. As an appeal from sentence, and as a discretionary
    order, the trial judges conclusion is subject to deference in the absence of
    an error in principle, a failure to consider a relevant factor, consideration
    of an irrelevant factor, overemphasis of appropriate factors or a decision that
    is plainly unreasonable:
R. v. P.R.F.
(2001), 57 O.R. (3d) 475, 161
    C.C.C. (3d) 275 (C.A.), at para. 8;
R. v. Briggs
, (2001) 55 O.R. (3d)
    417, 157 C.C.C. (3d) 38 at para. 60;
R. v. Dritsas
, 2015 MBCA 19, 19
    C.R. (7th) 203, at para. 6. Appellate intervention is justified only where it
    appears from the trial judges decision that an error had an impact on the
    result:
R. v. Lacasse
, 2015 SCC 64, at para. 44.

[23]

Where
    a judges decision under s. 462.37(3) requires or involves an interpretation of
    the subsection, however, appellate review of the decision applies a standard of
    correctness:
Dritsas
, at para. 6.

Ground #1: The Relevance of General Sentencing
    Principles

[24]

In
    his reasons for sentence, the trial judge considered the dominant sentencing
    objective at work in this case was general deterrence. Mitigating objectives,
    such as rehabilitation, occupied a secondary place in the sentencing decision.
    The preferable sanction was incarceration. After taking into account several
    mitigating and aggravating factors, the trial judge settled on the quantum of
    the carceral component of the sentence before he turned to the requests for
    restitution orders and a fine in lieu of forfeiture.

The Arguments on Appeal

[25]

In
    this court, the Crown begins with the uncontroversial. To obtain an order of
    forfeiture under Part XII.2, the proceeds of crime provisions of the
Criminal
    Code
, the Crown must satisfy several conditions precedent. Once it has
    done so, as required, on a balance of probabilities, a forfeiture order under
    s. 462.37(1) is mandatory. The objective of these provisions is to deprive
    convicted offenders of any proceeds derived from their crimes. Doing so deters
    them and others from similar conduct in the future.

[26]

In
    cases such as this, the Crown continues, where forfeiture is not possible
    because the proceeds cannot be located with the exercise of due diligence
    because the money has all been spent, the sentencing court
may
order
    the offender to pay a fine in lieu of forfeiture. Where the conditions precedent
    for ordering payment of a fine in lieu of forfeiture have been met, the
    sentencing judge has a limited discretion to refuse to make the order.

[27]

The
    Crown says a fine in lieu of forfeiture is not a constituent part of a global
    sentence imposed on a convicted offender. A fine in lieu of forfeiture is a
    discrete order based on a different rationale. It is not offender-centric and
    its issuance or refusal is not subject to the sentencing objectives, principles
    and factors put in place by Part XXIII. The sentencing judge applied these
    principles in deciding not to impose a fine in lieu of forfeiture. He was wrong
    to do so.

[28]

Nick
    Angelis (the respondent) agrees with the Crown to a point. The evidence
    warranted an order of forfeiture and, because the proceeds had all been
    dissipated, satisfied the criteria for consideration of a fine in lieu of
    forfeiture. However, sentencing courts retain a limited, but meaningful
    discretion to decline to order a fine in lieu of forfeiture. This discretion is
    to be exercised by reference to the statutory objectives of the forfeiture
    provisions. An important objective of those provisions, not at work here, is to
    target criminal organizations and to deter them from continuing their criminal
    activities.

[29]

The
    respondent asserts that it necessarily follows from the very nature of judicial
    discretion that no closed list of factors curtails its exercise. The
    authorities afford some examples. An isolated crime. A single offender. A
    failure to profit from the predicate offence.

[30]

The
    application of these principles is only ousted to the extent that it frustrates
    the purpose of forfeiture orders and thus orders imposing a fine in lieu of
    forfeiture. The trial judges decision was faithful to this distinction, but
    even if it fell foul of the distinction, the error was non-determinative in
    connection with the result.

The Governing Principles

[31]

A
    brief review of the statutory scheme provides several governing principles that
    inform our resolution of this ground of appeal.

The Statutory Scheme

[32]

Section
    462.37 is an essential component of Part XII.2 of the
Criminal Code
,
Proceeds
    of Crime
. The Part reflects a Parliamentary intention to give teeth to the
    general sentencing provisions in Part XXIII. But the purpose or objective
    underlying the two Parts is different. Part XXIII has as its purpose the
    punishment of an offender for the crime(s) she or he committed. The objective
    of Part XII.2, in particular the forfeiture provisions, is to deprive offenders
    and criminal organizations of proceeds of crime and thereby to deter future
    crimes:
R. v. Lavigne
, 2006 SCC 10, [2006] 1 S.C.R. 392, at para. 16.
    These provisions seek to avert crime by showing those who may be bent on committing
    it, not to mention those who have committed it, that any proceeds gained or
    their monetary equivalent may be forfeited.

[33]

Parliament
    also recognized that the forfeiture of proceeds of crime is not always
    practicable. Sometimes, proceeds cant be found. They may be outside Canada. Or
    in the hands of a third party. What was taken may have been substantially
    diminished in value, rendered worthless or commingled with other property that
    cannot be divided without difficulty:
Lavigne
, at para. 18. And so,
    Parliament enacted a provision, s. 462.37(3), to permit judges to impose a fine
    in lieu of forfeiture.

[34]

Section
    467.37(3) permits a sentencing judge to order an offender to pay a fine in lieu
    of forfeiting the proceeds of crime where:

i.

an order of forfeiture should be made in respect of an offenders
    property; but

ii.

the property or any part or interest of the offender in it cannot be
    made subject to an order of forfeiture.

The subsection describes several circumstances in which
    a judge may impose a fine in lieu of forfeiture.

[35]

Section
    462.37(1) tells us when an order of forfeiture can be made. Provided the
    prerequisites in the section have been met, an order of forfeiture is
    mandatory:
Lavigne
, at para. 14. The underlying conviction or finding
    of guilt must be for a designated offence as defined in s. 462.3(1). The
    Attorney General must apply for forfeiture. The sentencing judge must be
    satisfied, on a balance of probabilities, that:

i.

the subject-matter of which forfeiture is sought is proceeds of crime
    within s. 462.3(1); and

ii.

the designated offence was committed in relation to the property that is
    proceeds of crime.

The property that is proceeds of crime must not only be
    that of the offender but the offender must have had possession or control of
    the property in question at some point:
R. v. Dwyer
, 2013 ONCA 34, 296
    C.C.C. (3d) 193, at paras. 21 and 24.

[36]

Where
    an order of forfeiture is not possible or practicable, as for example where the
    proceeds have been used, transferred, transformed or cannot be located despite
    diligent efforts to do so, a sentencing judge may impose a fine in an amount
    equivalent to the value of the property in lieu of ordering forfeiture:
Criminal
    Code
, s. 462.37(3). The language used in this enabling authority is the
    permissive may rather than the mandatory shall:
Lavigne
, at paras.
    19 and 29. This provision ensures that the purpose of the legislation is not
    frustrated by destruction, dissipation or other removal out of reach of the
    property.

[37]

The
    exercise of the discretion for which s. 462.37(3) provides is not without
    boundaries. It is limited by the objective of the provision, the nature of the
    order and the circumstances in which the order is made:
Lavigne
, at
    para. 27.

[38]

Two
    further points should be made about the relationship between the proceeds of
    crime provisions in Part XII.2 and the sentencing scheme enacted in Part XXIII.

[39]

First,
    the focus of the two Parts is different. The Part XXIII sentencing scheme is
    offender-centric. Its focus is punishment of the offender for the crime of
    which she or he has been convicted or found guilty. Part XII.2 is different. Not
    offender-centric. Part XII.2 looks beyond the offender. Targeting the proceeds
    the offender has acquired through commission of the offence. Seeking to avert
    crime by showing it doesnt pay by taking away its proceeds or a monetary
    equivalent. Depriving the offender of his or her criminal labours:
Lavigne
,
    at paras. 8; 16 and 25. The purpose of a fine in lieu of forfeiture is to
    replace the proceeds of crime with their monetary equivalent, not as punishment
    specifically for the designated offence.

[40]

Second,
    the provisions of Part XII.2 are in addition to other provisions in the
Criminal
    Code
. They comprise a series of specific rules that partially preclude the
    application of the general provisions relating to sentencing, Part XXIII. But
    their preclusive reach is not complete. To the extent that the principles of
    Part XXIII are compatible with the specific provisions of Part XII.2, they
    continue to apply. But not otherwise:
Lavigne
, at paras. 39 and 52. In
    other words, we must look to the relationship between specific objectives,
    principles and factors of sentencing and the objectives of Part XII.2 to
    determine whether any specific principle is sufficiently compatible to warrant
    its application.

The Principles Applied

[41]

As
    I will explain, I would not give effect to the appellants general submission
    that the trial judge erred by applying the sentencing principles of Part XXIII
    in concluding that he would not impose a fine in lieu of forfeiture of the
    respondents frauds.

[42]

First,
    as a proposition of law, it simply cannot be said that the principles of
    sentencing in Part XXIII have
no
place in applications for forfeiture
    or a fine in lieu of forfeiture. Indeed, as noted above, the controlling
    precedent,
Lavigne
, makes it clear that the general rules are
    applicable in forfeiture proceedings, provided they are compatible with the
    specific provisions of Part XII.2:
Lavigne
, at paras. 39 and 52.

[43]

Second,
    the trial judges reasons, read as whole, simply do not reveal any general
    indiscriminate application of Part XXIII to the forfeiture proceedings. Indeed,
    the reasons disclose an express statement to the contrary. That is not to say,
    however, that the reasons do not disclose errors with respect to specific
    principles in Part XXIII.

[44]

Third,
    the sentencing judge did not make the error identified in
Dwyer
by
    considering forfeiture, or a fine in lieu of forfeiture, part of the
punishment
for committing the predicate offences. The judge in
Dwyer,
at para. 18,
    concluded that the carceral portion of the sentence satisfied the applicable
    principles of sentencing, thus, at least by necessary implication, including a
    fine in lieu of forfeiture as part of the sentence. That is simply not this
    case.

Ground #2: The Effect of a Fine in Lieu of
    Forfeiture on Rehabilitation and the Ability to Pay Restitution

[45]

This
    ground of appeal requires no further reference to the circumstances disclosed
    at the sentencing hearing.

The Arguments on Appeal

[46]

The
    Crown says the sentencing judge considered the effect the imposition of a fine
    in lieu would have on the respondents prospects for rehabilitation. As a
    result, the judge refused to order restitution in connection with the Dayco
    fraud. The amount - $936,000  would detrimentally affect the respondents
    rehabilitation. A fine in lieu of forfeiture would equally be at cross-purposes
    with the respondents rehabilitation.

[47]

The
    Crown argues that the trial judges concern with the effect of a fine in lieu
    of forfeiture on the respondents rehabilitation is not a relevant factor to
    consider in deciding whether to order a fine in lieu of forfeiture.
    Rehabilitation is an objective of sentencing, punishment of an offender for
    having committed an offence. Rehabilitation is offender-centric. The forfeiture
    scheme is distinct from sentence and cannot inform the determination of whether
    to order payment of a fine in lieu of forfeiture.

[48]

The
    respondent says that the sentencing judge considered the impact of a fine in
    lieu of forfeiture on the respondents rehabilitation only to the extent that
    it would not frustrate the purpose of forfeiture or a fine in lieu and even if
    not, played a subordinate role in the decision to refuse to impose the fine.

The Governing Principles

[49]

In
    addition to the principles discussed in connection with the first ground of
    appeal, four brief points should be added here to assist the decision on this
    ground of appeal.

[50]

First,
    the imposition of a fine in lieu of forfeiture is not punishment imposed upon
    an offender:
R. v. Khatchatourov
, 2014 ONCA 464, 313 C.C.C. (3d) 94,
    at paras. 55-56. Nor is it part of the global sentence imposed upon an offender
    despite its inclusion in the definition of sentence in s. 673 of the
Criminal
    Code
for appeal purposes:
Dritsas
, at para. 56. Subsequent
    imprisonment for failure to pay the fine in lieu of forfeiture is an
    enforcement mechanism to encourage payment by those with the resources to do
    so:
R. v. Bourque
(2005), 193 C.C.C. (3d) 485 (Ont. C.A.), at para.
    20;
Khatchatourov
, at para. 56.

[51]

Second,
    since imposition of a fine in lieu of forfeiture is not part of the global
    sentence imposed on an offender, it is not to be consolidated with sentencing
    on a totality approach:
R. v. Craig
, 2009 SCC 23, [2009] 1 S.C.R. 762,
    at para. 34. Totality is a principle of sentence the purpose of which is to
    ensure that the total sentence imposed does not extinguish the rehabilitative
    potential of the offender.

[52]

Third,
    the sentencing provisions of the
Criminal Code
distinguish between
    sanctions that involve imprisonment and those that do not do so. Deprivation of
    an offenders liberty is qualitatively different from other sanctions. And so
    it is that forfeiture orders, or fines in lieu, must not be considered
    interdependently with general sentencing principles:
Craig
, at para.
    37.

[53]

Fourth,
    the sufficiency of the carceral component of a sentence to satisfy the
    applicable sentencing objectives and principles cannot justify refusal to order
    payment of a fine in lieu of forfeiture where the conditions for its imposition
    have been established:
Dwyer
, at para. 18;
Lavigne
, at paras.
    25-26.

The Principles Applied

[54]

As
    I will explain, I would give effect to this ground of appeal.

[55]

To
    begin, I am satisfied that reading his reasons as a whole, the trial judge
    declined to order payment of a fine in lieu of forfeiture, in part at least,
    because of the effect he considered its imposition would have on the
    respondents rehabilitative prospects and his ability to satisfy the
    restitution orders made against him. Four reasons persuade that reliance on
    these factors reflects error.

[56]

First,
    assistance in rehabilitating an offender is an objective of sentencing under s.
    718(d) of the
Criminal Code
. Sentencing is punishment. Imposition of a
    fine in lieu of forfeiture is not regarded as punishment, thus the general statutory
    provisions of Part XXIII including the objectives in s. 718, have no say in
    exercising the limited discretion to refuse to impose a fine in lieu of
    forfeiture.

[57]

Second,
    at the risk of saying the same thing in a slightly different way, the general
    sentencing provisions have limited application to forfeiture proceedings under
    Part XII.2 . Their application is co-extensive with their compatibility with
    the specific provisions of Part XII.2. Assistance in rehabilitation is not
    compatible with provisions which have as their objective depriving an offender
    of the proceeds of crime by making him or her pay their monetary equivalent.

[58]

Third,
    to consider assistance in rehabilitation as a factor in deciding whether to
    order a fine in lieu of forfeiture is to adopt the interdependent or totality
    approach to sentencing and forfeiture expressly rejected in
Craig
.

[59]

Fourth,
    the totality principle in sentencing seeks to ensure, in the case of terms of
    imprisonment to be served consecutively, that the total sentence does not
    extinguish any realistic rehabilitative prospects of an offender. This link to
    rehabilitation extinguishes the influence of this principle on the fine in lieu
    of forfeiture decision.

Ground #3: Civil Remedies and the Objectives of
    Forfeiture

[60]

To
    situate this claim of error in its appropriate setting, it is helpful to recall
    a bit of background.

[61]

At
    the sentencing hearing, the judge was asked to make restitution orders in
    relation to all the victims of the respondents frauds. He made free-standing
    restitution orders for each of the victims in the post-Dayco offences, amounting
    to $100,750, but declined to do so in connection with Dayco, where the quantum
    would be $936,000.

[62]

The
    trial judge pointed out that Dayco had been reimbursed for its loss by its
    insurer. The insurer had commenced a civil action to which the respondent had
    no defence. The objectives of the restitution order had already been achieved
    Dayco recouped its loss. The overlap between restitution and forfeiture was
    considerable and warranted refusal of a fine in lieu of forfeiture.

The Arguments on Appeal

[63]

The
    Crown says that taking into account potential civil actions by the victim and
    the likelihood of their success in exercising the limited discretion to refuse
    to order payment of a fine in lieu of forfeiture reflects error.

[64]

The
    Crown points out that in cases such as this, civil remedies are perpetually
    available to the victims of crime. Parliament would have been keenly aware of
    their availability when it enacted Part XII.2. But to consider the availability
    of civil remedies as a reason to refuse to order payment of a fine in lieu of
    forfeiture is not only contrary to the authorities, but also fundamentally at
    odds with the limited scope of the discretion to refuse an order imposing a
    fine in lieu of forfeiture. Further, consideration of the availability of civil
    remedies is incompatible with the purpose of forfeiture and fines in lieu of
    forfeiture.

[65]

The
    respondent takes a different approach. These considerations were reasonable and
    appropriate. No controlling precedent addresses this issue, much less rejects
    the proposition that restitution orders and civil remedies can fulfill the
    legislative objectives that underlie the enactment of Part XII.2. Each seeks to
    deprive the offender of the proceeds of crime.

[66]

In
    this case, the respondent continues, no criminal organization is involved. A
    single individual is adequately deterred and disgorged of the profits of his
    crime by the restitution ordered and the inevitably successful civil
    proceedings. Nothing more is achieved by imposition of a fine in lieu of
    forfeiture.

The Governing Principles

[67]

No
    specific authority appears to have considered the interplay of the factors at
    work here: restitution, civil remedies and a fine in lieu of forfeiture. That
    said, some assistance can be found in precedents that consider the nature of
    restitution and the recruitment of other remedies to do the work of forfeiture
    proceedings.

[68]

First,
    unlike fines in lieu of forfeiture, restitution orders are part of the general
    sentencing provisions of Part XXIII. And subject to the objectives, principles
    and factors that Part puts in place:
R. v. Castro
, 2010 ONCA 718, 102
    O.R. (3d) 609, at paras. 24 and 35. The general sentencing principles of Part
    XXIII apply to restitution orders:
Castro
, at para. 35;
R. v.
    Yates
, 2002 BCCA 583, (2002), 169 C.C.C. (3d) 506 (B.C.C.A), at para. 7.

[69]

Second,
    even in decisions about restitution, where general sentencing objectives in
    principles hold sway, rehabilitation is a secondary consideration where the
    underlying crime involves a breach of trust. A primary consideration where
    there is a breach of trust is the effect of the crime on the victim:
Castro
,
    at para. 35.

[70]

Third,
    recall the holding in
Dwyer
that the alleged sufficiency of other
    sentencing components to satisfy the principles of sentencing does not engage
    the limited discretion to refuse to make an order in lieu of forfeiture where
    the prerequisites for making that order have been established:
Dwyer
,
    at para. 18;
Lavigne
, at paras. 25-26. See also,
Craig
, at
    para. 34.

The Principles Applied

[71]

For
    reasons similar to those advanced in finding favour with the second ground of
    appeal, I would give effect to this ground.

[72]

First,
    as the authorities make clear, once the conditions for imposition for a fine in
    lieu of forfeiture have been met, as they have here, a sentencing judge has a
    limited discretion to refuse to make the order. This makes sense. A fine in
    lieu of forfeiture may only be ordered where the prerequisites for an order of
    forfeiture have been met, but other circumstances, such as dissipation of the
    proceeds, make forfeiture impracticable. As the phrase fine in lieu of
    forfeiture itself suggests, the fine operates as a surrogate for forfeiture,
    surrender of the proceeds.

[73]

The
    exercise of the discretion to refuse to order payment of a fine in lieu of
    forfeiture is limited by the objective of the provision, the nature of the
    order and the circumstances in which the order is made:
Lavigne
, at
    para. 27. None of these factors would seem to embrace the effect or influence
    of restitution orders or civil proceedings.

[74]

Second,
    the availability of civil remedies and restitution orders is a constant,
    especially where the underlying offence involves property or property rights.
    The ability of a victim to pursue civil remedies(successfully)  as a factor
    militating in favour of refusing to impose a fine in lieu of forfeiture,
    despite satisfaction of the requirements for it, risks grounding the refusal on
    the invidious distinction between victims who are adequately resourced to
    pursue civil remedies and those who are not. Such a distinction was rejected in
Craig
and lacks purchase where the proceeds of the fine go to the
    state, not to the victim.

[75]

Third,
    the availability of civil remedies as a basis to refuse ordering payment of a
    fine in lieu of forfeiture does not sit well with the jurisprudence that
    rejects the interdependent or totality approach to sentencing and forfeiture.
    The availability and likely success of civil proceedings for victims to recoup
    their losses has nothing to do with proceeds of crime legislation, the
    objective of which is to deal with proceeds separately from, and in addition to,
    the punishment for committing the crime, which includes restitution to its
    victims.

[76]

Fourth,
    restitution and enforcement of restitution orders is part of the sentencing
    scheme put in place by Part XXIII. Its application to forfeiture proceedings is
    limited.

Ground #4: Ability to Pay as a Factor

[77]

The
    final ground of appeal may be outlined and determined economically.

The Arguments on Appeal

[78]

The
    Crown argues that the sentencing judges focus on what happened to the proceeds
    of the respondents frauds seeped into his analysis of the fine in lieu
    application. This seepage, the Crown says, led inevitably into consideration of
    the respondents ability to pay as a factor that told against a fine in lieu of
    forfeiture. But what had happened to the proceeds, which admittedly had been
    dissipated, was irrelevant to the fine in lieu application.

[79]

The
    Crown contends that the sentencing judge failed to separate out the proceeds
    principles from those applicable to the sentencing proceedings, including
    whether the sentence should encompass a restitution order. The judges
    characterization of the fine in lieu application and any order giving effect to
    it as redundant discloses a failure to appreciate the objectives of proceeds
    proceedings and to distinguish them from sentencing proceedings.

[80]

The
    respondent resists any suggestion that the sentencing judge erred as the Crown
    contends. Indeed, the judge expressly said that he was disentitled to consider
    the respondents ability to pay when deciding whether to impose a fine in lieu
    of forfeiture. That he did so implicitly despite his self-direction to the
    contrary is a conclusion not borne out by a careful analysis of the reasons as
    a whole. The trial judges exercise of discretion remained grounded in the
    objectives of the forfeiture provisions.

The Governing Principles

[81]

It
    is well-settled that ability to pay may not be considered either in deciding to
    impose a fine in lieu of forfeiture or in determining the amount of the fine:
Lavigne
,
    at paras. 1; 48; and 52. However, ability to pay is a factor to be considered
    in determining the time within which the fine is to be paid:
Lavigne
,
    at para. 52.

The Principles Applied

[82]

Although
    this complaint of error is not entirely free of doubt, I am inclined to conclude
    that the sentencing judge appears to have allowed ability to pay to enter his
    analysis on the fine in lieu application. If this were the only complaint, the
    result may be different.

[83]

First,
    the sentencing judge considered ability to pay, as well as the deleterious effect
    of an order in relation to Dayco, in rejecting Daycos claim for an order of
    restitution. He then considered the restitution orders as factors in refusing a
    fine in lieu because the restitution orders had largely satisfied the
    objectives of the proceeds proceedings.

[84]

Second,
    the sentencing judges characterization of the fine in lieu application as
    redundant, in light of the restitution orders, comes uncomfortably close to
    consideration of ability to pay as an influential factor in refusing a fine in
    lieu of forfeiture. Particularly when the principal basis for refusing the
    restitution orders was the inability to pay and the surrogacy of the civil
    proceedings.

[85]

Third,
    the sentencing judge appears to have linked ability to pay with his rejection
    of fine in lieu on the ground of its deleterious impact on the respondents
    rehabilitation, itself irrelevant to the fine in lieu decision.

CONCLUSION

[86]

I
    would grant leave to appeal, allow the appeal and impose a fine of $1,036,750.00
    in lieu of forfeiture. The respondent shall have 10 years after the expiration
    of any term of imprisonment to pay the fine. In default of payment, the
    respondent shall serve a further term of imprisonment of 10 years, which he
    shall serve consecutively to any other term of imprisonment he is then serving.

Released:    September 13, 2016 (EEG)

David Watt J.A.

I agree, E.E.
    Gillese J.A.

I agree, M. Tulloch
    J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Badali, 2016 ONCA 686

DATE: 20160916

DOCKET: C60712

Laskin, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Salvatore Joseph Badali

Appellant

Gregory Lafontaine, for the appellant

Lucy Cecchetto, for the respondent

Heard and released orally: September 7, 2016

On appeal from the conviction entered on June 30, 2015 by
    Justice Bruce A. Glass of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of procuring a 16-year-old girl into
    prostitution, living off the avails of prostitution, and obtaining sexual
    services for consideration. He was sentenced to a global sentence of three
    years (less two months credit for presentence custody). The appellant appeals
    his convictions and his sentence. He contends that the convictions are
    unreasonable and that the sentence is excessive.

[2]

On the conviction appeal we called on the Crown only on the procuring
    conviction. In our view, that conviction was reasonably supported by the
    evidence. Procuring requires persuasion or encouragement to be a prostitute.
    The appellant held out the possibility of significant financial compensation
    for engaging in prostitution. The complainant was trained by the other
    attendants and shown an escalating fee schedule for sexual services. This
    evidence showed sufficient persuasion to support the conviction.

[3]

The appellant urges us to find that the trial judge misapprehended the
    evidence when he stated that the complainant had not worked previously as a
    prostitute. The complainant did testify she may have had one or two clients in
    the past, but the essence of the trial judges reasons was that she had not
    actively worked as a prostitute. Even if the trial judges statement was in
    error  and we are not satisfied that it was  it was at most a harmless error.
    It does not undermine the trial judges finding that the procuring conviction
    was made out beyond a reasonable doubt.

[4]

The other two convictions are reasonably supported by the evidence and
    we see no error in the trial judges analysis for either of those two convictions.

[5]

On the sentence appeal, we are not persuaded that the sentence is
    excessive. We agree with the trial judges reasons at para., 22 of his
    sentencing decision where he said:

The victim is only 16 years of age. Fortunately, the police
    happened to act at a time that shut down this involvement shortly after the
    victim commenced working. Nevertheless, she carries emotional scars from her
    experience. Drawing a young girl into prostitution is reprehensible. Paying her
    for sexual experiences when he had to turn a blind eye to her age is without
    excuse. All acts should be denounced. Both Mr. Badali and others should be
    discouraged from such activity.

[6]

We also agree with what the Crown said at para. 53 of her factum when
    she stated that the complainant was a vulnerable 16-year-old; the vulnerability
    was evident to the appellant who saw self-inflicted cuts to her arms before he
    hired her; and he then took advantage of her vulnerability by engaging in
    sexual intercourse with her for money during her job interview, while turning a
    blind eye to her age.

[7]

The offences of procuring and living off the avails of juvenile
    prostitution are serious offences and their seriousness must be reflected in
    the gravity of the sentences the court imposes. Accordingly, both the conviction
    appeal and the sentence appeal are dismissed.

John
    Laskin J.A.

K.
    Feldman J.A.

Grant
    Huscroft J.A.