COURT OF APPEAL FOR ONTARIO

CITATION: Oliveira v. Oliveira, 2022 ONCA 218

DATE: 20220317

DOCKET: M52988 (C69619)

van Rensburg, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Jack
    Oliveira and Luis Camara on their own behalf and on behalf of all

members of Labourers
    International Union of North America, Local 183

Plaintiffs (Responding Parties)

and

Mario Oliveira

Defendant (Moving Party)

Mario Oliveira, acting in person

Youssef Kodsy and Michael D. Wright,
    for the responding parties

Heard: March 7, 2022 by video conference

REASONS
    FOR DECISION

[1]

This is a motion to review the order of a single
    judge of this court under s. 7(5) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43. The moving party/appellant, Mario Oliveira, commenced an
    appeal in this court. He purported to appeal several orders and endorsements of
    a motion judge of the Superior Court (the SCJ motion judge). At the forefront
    is an order dated February 26, 2021 (the Contempt Order), finding him in
    contempt of two earlier orders of the SCJ motion judge. The appellant also
    seeks to appeal other orders that preceded and followed the Contempt Order,
    including an order dated April 29, 2021 sentencing him to a period of
    incarceration, with the term to be determined, and a costs order dated June 25,
    2021.

[2]

The appellant did not perfect his appeal within
    the requisite time. On the day following the perfection deadline, he brought a
    motion before a single judge of this court (the chambers judge), seeking an
    extension of time to perfect his appeal and other relief. The chambers judge (1)
    refused to grant an extension of time to perfect the appeal; (2) refused to
    stay the appellants sentencing for contempt; and (3) ordered sealed a document
    that was included in the appellants motion materials in violation of the
    deemed undertaking rule.

[3]

The appellant has since been sentenced for
    contempt. On January 14, 2022, he was sentenced by the SCJ motion judge to a
    period of incarceration of 89 days to be served intermittently when Ontario
    jails permit. That order is the subject of another appeal to this court. On
    consent, Pardu J.A. made an order on March 1, 2022, extending the time to
    appeal and staying the order pending appeal. She also directed case management
    of that appeal, the appeal in C70060, and the present panel motion and appeal.
    She explained that either party may seek an appointment with a case management
    judge.

[4]

The appellant brought a motion before this panel
    to review the chambers judges order. In particular, he asserts that the
    chambers judge erred in refusing to extend time for his appeal and in ordering
    a document contained in his materials (which he has refiled in his materials on
    this review motion) to be sealed.

[5]

A panel may interfere with the order under
    review under s. 7(2) of the
Courts of Justice Act
if the motion judge
    failed to identify the applicable principles, erred in principle, or reached an
    unreasonable result:
Hillmount Capital Inc. v. Pizale
, 2021 ONCA 364, 462
    D.L.R. (4th) 228, at para. 18.

[6]

In our view, the refusal of the chambers judge
    to extend time to appeal the Contempt Order reflects such an error. Applying
    the justice of the case test, and considering all of the relevant factors, we
    grant the extension of time for the appellant to appeal the Contempt Order, and,
    in the circumstances, certain other orders that are related to the contempt
    proceedings. We do not see any error in the decision to order sealed a document
    that was subject to the implied undertaking rule, and we make the same order in
    respect of the same document which has been filed in this review motion.

[7]

The parties have been involved in several legal
    actions, some of which are ongoing. The orders the appellant seeks to appeal
    were made in the context of a breach of confidence action commenced by the
    respondents as a result of the appellants threat to disseminate certain information
    to a confidential list of contact addresses that he allegedly obtained through
    his former employment with the respondent union. The SCJ motion judge made an
    order dated December 23, 2020, requiring the return of the confidential list,
    prohibiting the appellants use and retention of the confidential list, and
    appointing a forensic inspector to examine the appellants devices and accounts
    to confirm that the confidential list was permanently and irrevocably deleted. She
    made a subsequent order on January 28, 2021, requiring compliance with the
    December 23 order.

[8]

On February 26, 2021, on motion by the respondents,
    the SCJ motion judge found the appellant in contempt of the December 23 and
    January 28 orders and made the Contempt Order. She deferred sentencing to
    permit the appellant the opportunity to purge his contempt. In an endorsement
    dated April 16, 2021 (reported at 2021 ONSC 2856), she refused the respondents
    request to stay an action pending in another court as part of the sentencing
    for contempt. On April 29, 2021, the SCJ motion judge issued Reasons for
    Sentence, concluding that she would order a term of incarceration to be served
    once the Covid-related circumstances subside. On June 25, 2021, she ordered costs
    of the contempt proceedings to the respondents and fixed the amount.

[9]

On July 7, 2021 the appellant served and filed a
    notice of appeal (which has since been amended) and a Certificate Respecting
    Evidence purporting to appeal the various orders and endorsements of the SCJ
    motion judge, including the Contempt Order. In the months that followed, the appellant
    served and filed other documents in connection with his appeal, including an Exhibit
    Book and a Factum. Although the appellant also prepared and served an Appeal
    Book and Compendium, it was not accepted for filing because it did not include
    the signed and entered orders under appeal. The respondents served and filed a Respondents
    Certificate Respecting Evidence.

[10]

After the court refused the appellants filing, he
    brought a motion before the chambers judge for an extension of time to perfect
    his appeal and other relief.

[11]

In denying an extension of time to appeal the
    Contempt Order, the chambers judge noted two concerns: first, there was a
    substantial delay between the date of the order and the date on which the appellant
    filed his first notice of appeal; and second, and more importantly, the appeal
    was without merit. The chambers judge stated that nothing in the appellants
    submissions pointed to any error in the SCJ motion judges decision or
    suggested any basis for the court to intervene on appeal. He observed that [t]he
    appellant asserts that he has complied with the order to provide his devices
    for forensic inspection even though he acknowledges that he destroyed them, and
    so precluded that inspection permanently: at para. 8. In these circumstances,
    the chambers judge concluded that the appellant failed to establish that the
    justice of the case required an extension.

[12]

The chambers judge concluded that the appeals
    from the other orders lay to the Divisional Court, such that an extension of
    time would inevitably result in the appeals being quashed for want of
    jurisdiction. He therefore declined to grant an extension to perfect the appeal
    in respect of these other orders.

[13]

In our respectful view, the chambers judge erred
    in principle in refusing an extension of time to appeal the Contempt Order on
    the basis that the appeal lacks merit.

[14]

In a motion to extend time to appeal, the
    overriding issue is whether it is in the interests of justice in the particular
    circumstances to extend time:
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, r. 3.02(1);
2363523 Ontario Inc. v. Nowack
, 2018 ONCA 286,
    at para. 4. Among the relevant factors, the court may consider whether the
    appeal has so little merit that the court could reasonably deny the important
    right of appeal:
Duca Community Credit Union Ltd. v. Giovannoli
(2001), 142 O.A.C. 146 (C.A.), at para. 14. Other factors include whether the
    appellant intended to appeal during the appeal period; the length of and
    explanation for the delay; and prejudice to the opposing party:
Denomme v.
    McArthur
, 2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 7. Consideration
    must be given to all factors relevant to the circumstances of the case:
Leighton
    v. Best
, 2014 ONCA 667, 20 C.B.R. (6th) 326, at para. 14.

[15]

The challenge here is that, while the Contempt
    Order was made in open court on February 26, 2021, the SCJ motion judge did not
    provide any written reasons or endorsement. According to the respondents counsel,
    she did provide oral reasons, however no transcript has been filed with this
    court. The respondents counsel submit that the SCJ motion judges reasons for
    making the Contempt Order can be gleaned from certain passages in her
    subsequent endorsements, and that this was a proper basis for the chambers
    judge to conclude that the appeal of the Contempt Order is without merit.

[16]

We disagree. A civil contempt order is a serious
    matter. The power to find an individual guilty of contempt is exceptional, and
    exercised as a last resort, only after finding that the necessary elements are
    made out, and after affording the alleged contemnor procedural fairness:

Carey
    v. Laiken
, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36;
Bell
    ExpressVu Limited Partnership v. Corkery
, 2009 ONCA 85, 94 O.R. (3d) 614,
    at para. 20; and
2363523 Ontario Inc. v. Nowack
, 2016 ONCA 951, 135
    O.R. (3d) 538, at para. 37, leave to appeal refused, [2017] S.C.C.A. No. 62.
    Without seeing the reasons for the Contempt Order, it is impossible to assess,
    even in a preliminary way, the merits of the proposed appeal. Moreover, a lack
    of reasons itself can be a ground of appeal. At the time the motion was heard
    by the chambers judge, the respondents had not even taken out a formal order.

[17]

In the circumstances, the chambers judge erred
    in dismissing the motion for an extension of time primarily on the basis that
    the appeal lacks merit. He also erred by failing to consider all the
    circumstances.

[18]

The only other factor referred to by the
    chambers judge with respect to an extension of time to appeal the Contempt
    Order was that the appellant was substantially late: the time to appeal the
    contempt finding was 30 days from February 26, 2021, and the appellants first notice
    of appeal was served several months later, in early July 2021. While it is no
    doubt true that there was a delay, the appellants confusion is at least partly
    explained by the fact that the decision was made orally, there were no written
    reasons, and the respondents had not taken out an order.

[19]

There are other relevant circumstances,
    including the seriousness of the finding of contempt that, as in the present
    case, can lead to a penalty of imprisonment. In addition, after filing his
    notice of appeal, the appellant continued to take steps with a view to
    perfecting his appeal, the respondents did not object to the late filing of the
    notice of appeal, and there was no assertion of prejudice.

[20]

In all the circumstances, we are satisfied that
    an extension of time to appeal the Contempt Order is warranted.

[21]

As for the other orders and endorsements
    referred to in the appellants notice of motion, we agree with the chambers
    judge that no extension is warranted in respect of an appeal of an order that
    is interlocutory. This precludes an extension of time in respect of the order
    dated April 16, 2021. We would, however, direct that the extension of time to
    perfect the appeal includes the orders of the SCJ motion judge dated April 29,
    2021 and June 25, 2021. The April 29, 2021 decision determined that a sentence
    of imprisonment was required, while the June 25, 2021 endorsement awarded costs
    of the contempt proceedings to the respondents and fixed the amount. In our
    view, it makes sense to grant an extension of time for the appellant to perfect
    his appeal to include the April 29 sentencing decision and to permit him to
    seek leave to appeal the costs order when he appeals the Contempt Order.

[22]

The appellant has included in his materials a
    certificate stating that he has ordered transcripts. Apparently, the
    transcripts he has obtained have not been prepared by a certified transcriptionist.
    The respondents indicated at the hearing before us that they will object to any
    such transcripts being used in the appeal. For their part, the Respondents
    Certificate Respecting Evidence lists a number of transcripts the respondents
    contend are necessary for the appeal. Arguably many of the transcripts from the
    various attendances before the SCJ motion judge and other judges may not be required
    for this appeal. As noted earlier, at the hearing of this motion, counsel for
    the respondents indicated that the SCJ motion judge gave oral reasons for
    finding the appellant in contempt on February 26, 2021. This transcript should
    be before the court in this appeal. Any directions respecting transcripts may
    be sought from the case management judge.

[23]

Finally, there is no basis to interfere with the
    decision of the chambers judge to seal a document that the appellant included
    in his motion materials. The appellant filed the same document in this review
    motion, notwithstanding that it has absolutely no relevance to the matters
    before us. There is no question that the appellant knowingly violated the
    deemed undertaking rule when he filed this document. The document, which is located
    at Volume 2, Tab 1 of his motion record, is not properly part of the court
    record and will be sealed.

[24]

For these reasons, the order of the chambers
    judge is set aside in part. An order will go extending time to perfect the
    pending appeal as it relates to the Contempt Order, the April 29, 2021
    sentencing decision and seeking leave to appeal the costs order dated June 25,
    2021, with the following directions:

a)

Counsel for the respondents are to provide the issued
    and entered Contempt Order that they had taken out to the appellant by March
    21, 2022;

b)

The appellant is to amend his Appeal Book and
    Compendium to include the issued and entered Contempt Order, and serve and file
    it by March 31, 2022; and

c)

The appeal will be considered perfected once the
    Appeal Book and Compendium is filed.

[25]

As was ordered by Pardu J.A. on March 1, 2022,
    either party may request an appointment with a case management judge should
    further directions be required.

[26]

There will be no costs of this motion.

K.
    van Rensburg J.A.

I.V.B.
    Nordheimer J.A.

A.
    Harvison Young J.A.


WARNING

An order restricting publication in
    this proceeding was made under s. 517 of the
Criminal Code
and
    continues to be in effect. This section of the
Criminal Code
provides:

517(1)         If the prosecutor or
    the accused intends to show cause under section 515, he or she shall so state
    to the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry
    is held, the accused in respect of whom the proceedings are held is discharged;
    or

(b)     if the accused in respect of whom the
    proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s.
    17]

R.S., 1985, c. C-46, s. 517; R.S.,
    1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Wright, 2022 ONCA 221

DATE: 20220315

DOCKET: M53231

Lauwers, Pardu and Sossin JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Robert Steven Wright

Applicant

Michael W. Lacy and Bryan Badali, for
    the applicant

Jeremy D. Tatum, for the respondent

Heard: March 10,
    2022, by video conference

[1]

A non-publication order under s. 517 of the
Criminal Code
, R.S.C.
    1985, c. C-46 was imposed in this matter at the bail hearing in the court
    below. That order precludes the publication, broadcast or transmission of any
    evidence taken, information given, representations made and reasons given.

[2]

The decision in
R. v. Wright
, 2022 ONCA 221 contains information
    covered by that order.

[3]

Accordingly, the decision will be available on the Court of Appeal for
    Ontarios website once the non-publication order ceases to be in effect.

[4]

In the interim, a copy of the full decision is available at the Registry
    of the Court of Appeal for Ontario at 130 Queen Street West, Toronto.


COURT OF APPEAL FOR ONTARIO

CITATION: Abdullahi (Re), 2022 ONCA 220

DATE: 20220317

DOCKET: C69689

Rouleau, Huscroft and Trotter
    JJ.A.

IN THE MATTER OF: Abdimalik Abdullahi

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the
    appellant

Alysa Holmes, for the respondent,
    Attorney General of Ontario

Hilary Chung, for the respondent,
    Person in Charge of Royal Ottawa Mental Health Centre

Heard: March 11, 2022 by video
    conference

On appeal from the disposition of the
    Ontario Review Board dated June 8, 2021, with reasons dated July 14, 2021.

REASONS FOR DECISION

[1]

The
    appellant seeks an absolute discharge on the basis that the Boards finding
    that he poses a significant threat to the safety of the public is unreasonable.

[2]

The
    appeal is dismissed for the reasons that follow.

[3]

The
    appellant has been under the Boards jurisdiction since 2011, following the commission
    of the index offences: two counts of utter threat to cause death or bodily
    harm, assault, and causing a disturbance in a public place. In its July 14, 2021
    decision, the Board found that the appellant continued to meet the threshold
    for significant threat to the safety of the public and maintained the
    conditional discharge he had been under.

[4]

The appellant argues that he posed only a
    moderate risk of low-level violence; that the Board failed to consider his
    disability and the extent to which it mitigated the risk he posed; and that the
    Board failed to consider the extent to which the
Mental Health Act
addressed the relevant concerns. We disagree.

[5]

As this court has emphasized, the significant threat
    test is onerous:
the Board must be satisfied as
    to both the existence and the gravity of the risk of physical or psychological
    harm posed by the appellant in order to deny him an absolute discharge:
Carrick
    (Re)
, 2015 ONCA 866, 128 O.R. (3d) 209. Although the appellant appeared to
    have made progress,
his offer in 2020 to pay another patient to stab or
    hit his then-treating psychiatrist supports the Boards finding that he
    continued to pose a significant threat. The Board considered that a conditional
    discharge was necessary to ensure that the appellants treatment could be
    monitored. The Board did not address the extent to which the threat the
    appellant posed was mitigated by his disability, but this is insignificant in
    light of the fresh evidence proffered by the Person in Charge of Royal Ottawa
    Mental Health Centre (discussed below), which demonstrates that he is no longer
    wheelchair bound.

[6]

The
    fresh evidence is contained in the affidavit of Dr. Zeynep Selaman, the
    appellants current attending psychiatrist, and includes excerpts from the
    appellants clinical record since the Boards disposition. The appellant
    acknowledges that the evidence is relevant and is properly admitted given that
    he is seeking an absolute discharge. Accordingly, the fresh evidence is
    admitted.

[7]

The
    fresh evidence indicates that the appellant has been ambulatory using a
    prosthesis since October 2021. Since that time, he sought readmission to the
    Royal Hospital on several occasions. On six occasions, the appellants conduct
    resulted in staff calling a Code White. He made threatening comments to staff
    when he did not get what he wanted and has been physically aggressive. He
    punched one orderly in the face, struck another in the arm with his cane, and attempted
    to hit other staff.

[8]

As
    a result of this conduct, Dr. Selaman has recommended that the appellants
    conditional discharge be changed to a detention order. A pre-hearing conference
    is to be held March 23, and it is anticipated that a date will be set for the
    early review shortly after that.

[9]

In
    all of these circumstances, we conclude that the Boards decision that the
    appellant poses a significant threat to the safety of the public is reasonable.

[10]

The
    appeal is dismissed.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.

Gary
    Trotter J.A.


WARNING

An order restricting publication in this proceeding
    was made under s. 517 of the
Criminal Code
and continues to be in
    effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or the accused
    intends to show cause under section 515, he or she shall so state to the
    justice and the justice may, and shall on application by the accused, before or
    at any time during the course of the proceedings under that section, make an
    order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry is held, the
    accused in respect of whom the proceedings are held is discharged; or

(b)     if the accused in respect
    of whom the proceedings are held is tried or ordered to stand trial, the trial
    is ended.

Failure to comply

(2)     Everyone who fails without lawful excuse, the
    proof of which lies on him, to comply with an order made under subsection (1)
    is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
    Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Silva-Stone, 2022 ONCA 222

DATE: 20220316

DOCKET: M53126

Strathy C.J.O. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Erick
    Silva-Stone

Applicant

Michael Johnston and James Coulter, for the applicant

Gavin MacDonald, for the respondent

Heard: March 11, 2022 by video conference

[1]

A non-publication order under s. 517 of the
Criminal Code
, R.S.C. 1985, c. C-46,
was imposed in
    this matter at the bail hearing in the court below. That order precludes the
    publication, broadcast, or transmission of any evidence taken, information
    given, representations made, and reasons given.

[2]

The decision in
R. v. Silva-Stone,
2022 ONCA 222, contains information
    covered by that order.

[3]

Accordingly, the decision will be available on the Court of Appeal for
    Ontarios website once the non-publication order ceases to be in effect.

[4]

In the interim, a copy of the full decision is available at the Registry
    of the Court of Appeal for Ontario at 130 Queen Street West, Toronto.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2022 ONCA 223

DATE: 20220321

DOCKET: C68302

Tulloch, van Rensburg and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne
    Campbell

Appellant

James Foy, for the appellant

Michael Fawcett and Andrew Hotke, for
    the respondent

Heard: September 7, 2021 by video
    conference

On appeal from the convictions entered
    by Justice David E. Harris of the Superior Court of Justice on July 10, 2019.

Nordheimer J.A.:

[1]

Mr. Campbell appeals from his convictions for
    robbery, forcible confinement, and use of an imitation firearm in the
    commission of an offence. The appellant submits that the application judge
    erred in dismissing his application for a stay arising from an alleged breach
    of his right to be tried within a reasonable time, contrary to s. 11(b) of
    the
Canadian Charter of Rights and Freedoms
.

For the
    following reasons, I would dismiss the appeal.

A.

Background

[2]

While it is not necessary to review every court appearance
    in this case in order to properly address the s. 11(b) issue, some
    recitation of the history of this matter is required.

[3]

The appellant was arrested on February 16, 2017
    and brought to court the following day. The allegations arose from a home
    invasion robbery that took place on December 19, 2016. The appellants
    co-accused had been arrested on the day of the robbery, a short distance from
    the scene.

[4]

On March 9, 2017, a judicial pre-trial was
    scheduled for March 23. The appellant was represented but the appellants
    co-accused was not. Consequently, the pre-trial took place in court. Crown
    counsel said that he had provided disclosure both to the appellants counsel
    and to prospective counsel for the co‑accused. There was some issue over
    whether prospective counsel would, in fact, be retained by the co-accused. Six
    days was settled upon as a time estimate for the preliminary hearing, but the court
    lacked dates before 2018.

[5]

On March 30, the parties appeared again and
    succeeded in securing target preliminary inquiry dates for September 2017, with
    a single date in October for a witness significant to the case against the
    co-accused. The co-accused objected to setting dates for the preliminary
    hearing.

[6]

A continuing judicial pre-trial was then
    scheduled for April 13, 2017. The Crown obtained an order appointing counsel to
    cross-examine one child witness on behalf of the co-accused pursuant to s. 486
    of the
Criminal Code
, R.S.C. 1985, c. C-46. On April 26, the Crown
    reported that Legal Aid had said that they were willing to issue a certificate
    to fund counsel for the co-accused, but the co-accused said that he was not
    sure that he would use the Legal Aid certificate that had been offered. The appellants
    bail hearing was scheduled for May 2. It proceeded that day and the appellant
    was ordered detained in custody.

[7]

On May 5, 2017, the parties appeared again. The
    co-accused stated that he would proceed without a lawyer because he mistrusted
    everyone involved. A date was set for a bail hearing for the co-accused and he
    was ultimately ordered detained.

(1)

The First Trial Date

[8]

The preliminary inquiry proceeded as scheduled
    on the target dates set in September, and both accused were committed for trial
    on September 13, 2017. The co-accused was represented by counsel at the
    hearing. On September 29, the parties made a first appearance in the Superior
    Court, saying they were prepared to set judicial pre-trial dates. They agreed
    on October 26, 2017. The presiding judge pushed the parties to also target
    trial dates. Eventually, June 11, 2018 was selected for an anticipated 12-day
    jury trial.

[9]

In the last week of May 2018, less than two
    weeks before the trial was scheduled to begin, counsel for the co-accused
    successfully applied to be removed from the record. On June 1, the co-accused
    appeared in person and said he had asked Legal Aid for a change of counsel. Prospective
    new counsel for the co‑accused was not able to proceed on the scheduled
    June 11 trial date. The co‑accused was unwilling to proceed without a
    lawyer and effectively requested an adjournment. The appellants counsel stated
    that she was prepared to proceed and that, given that the appellant was in
    custody, she wanted to maintain the June 11 date. Crown counsel said she
    was prepared to proceed but was in an awkward position given that they could
    not force the co-accused on when he was requesting a lawyer. The trial dates
    were ultimately vacated.

(2)

The Second Trial Date

[10]

On June 22, 2018, the parties appeared again. The
    co-accused was still waiting for Legal Aid to decide his change of solicitor request,
    but the Crown and the appellant sought to set target dates immediately in order
    not to lose any further time. The co-accuseds prospective new counsel was not
    present but conveyed through the appellants counsel that he wanted a further
    pre-trial but could not commit to dates before he was retained. The court
    offered January 21, 2019 for a two-week trial and the appellant and the Crown
    agreed to those dates. The trial was set with or without counsel in respect
    of the co-accused.

[11]

The case was spoken to again on July 13, 2018.
    By this time, Legal Aid had denied the co-accuseds change of solicitor
    application. The co-accused intended to appeal that decision. The co-accuseds prospective
    new counsel had also conveyed that he was not available for trial on January 21,
    2019 and the Crown had discovered that an important witness for them would also
    be unavailable at that time. Both the Crown and the co-accused were considering
    an adjournment application. The appellants counsel reiterated that she was
    anxious to proceed.

[12]

At the next appearance, on August 10, the
    co-accuseds Legal Aid appeal had been refused. He had one further internal Legal
    Aid appeal which was estimated to take four weeks. The appellants counsel
    stated that she wished to know sooner rather than later if the January 21
    date would be adjourned. The presiding judge said that, while he was
    sympathetic to her position, he saw no alternative to returning in a month, on
    September 14. By that day, the co-accuseds Legal Aid appeals had been
    exhausted. He said that he intended to bring a
Rowbotham
application.
    The case returned several times during the fall. The co‑accused eventually
    succeeded in obtaining a
Rowbotham
order.

[13]

On December 14, 2018, the co-accuseds new
    counsel applied to adjourn the January 21 trial date. The application was
    opposed by the appellant and by the Crown. The presiding judge denied the
    adjournment.

[14]

The parties appeared on December 20, 2018, and
    then again on January 9, 2019, to see whether the co-accused could retain
    counsel available for the trial dates. The co-accused insisted that he wanted to
    be represented by the specific counsel who was unavailable. At the January 9
    appearance, the presiding judge commented that to adjourn the case to a date
    when hes available would require [the appellant] to sit in jail for about a
    year from his first trial date, and the first trial got adjourned because you
    discharged your lawyer. The presiding judge also noted that the trial had been
    set with or without a lawyer. The appellants counsel commented that, if an
    adjournment had been sought earlier and the resulting delay would have been
    limited, then the appellant may have consented, but that the prospect of a
    further six months delay was intolerable. The issue of severance was raised,
    but Crown counsel stated their position that a joint trial was important to
    avoid having the child witness testify twice.

[15]

On the day of trial, January 21, 2019, the
    co-accused was unrepresented and requested an adjournment on the basis that he
    had not had access to his disclosure in custody and so was not able to proceed.
    This time the adjournment was granted, over the objection of the appellant, whose
    counsel noted that she was ready to proceed and that the appellant was not
    waiving his s. 11(b) rights.

(3)

The Third Trial Date

[16]

On January 29, 2019, the parties returned to set
    new trial dates. The Crown reiterated its position to proceed with a joint
    trial because of the child witness. With respect to the resulting delay, Crown counsel
    noted that if I have to argue it down the line at some point as to whether
    that was a reasonable call, Ill make that argument. The co-accuseds new
    counsel did not appear but conveyed that he was available for trial starting on
    July 8 although the court had offered earlier dates. The appellants counsel
    was available for those earlier dates and reiterated her concern about delay.

[17]

The presiding judge pressed the Crown to
    consider severance so that the appellants trial could be scheduled for late
    February dates for which his counsel could make time. The Crown indicated this
    may be an option in the event of a re‑election. The appellant did not
    commit to re-electing and was remanded to the trial date of July 8, 2019.

(4)

The Application to Stay the Proceedings

[18]

The appellant applied for a stay of proceedings
    for a violation of s. 11(b). The application was heard by Shaw J. on June
    14, 2019.
[1]
The parties agreed that the total effective delay to be considered was 28
    months and 26 days, which was below the presumptive ceiling of 30 months set in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 49. They
    also agreed that the bulk of the delay was caused by the co-accused.

[19]

The application judge dismissed the application.
    She found that neither part of the
Jordan
test for cases under the
    ceiling had been met. She found that the appellant could not be said to have
    taken meaningful steps to expedite in view of his failure to apply for
    severance. Specifically, she found that the appellant could have moved for
    severance immediately following each of the two adjourned trial dates. She also
    found that the case had not taken markedly longer than it reasonably should
    have.

B.

Analysis

[20]

In
Jordan
, the court explained, at
    para. 82, that in order for the defence to obtain a stay for breach of s. 11(b)
    for a case that took less time than provided for by the presumptive ceiling, the
    defence must establish two things: (1) it took meaningful steps that
    demonstrate a sustained effort to expedite the proceedings; and (2) the case
    took markedly longer than it reasonably should have. The court stated that it expected
    stays beneath the ceiling to be rare and limited to clear cases: at paras. 48,
    83.

(1)

Meaningful
    Steps to Expedite the Proceedings

[21]

The respondent concedes that the application
    judge erred in finding that the appellant had failed to take meaningful steps
    to expedite the trial. In particular, the respondent agrees that the
    application judge erred in finding that the appellant had failed in his efforts
    to expedite his trial by not bringing a motion for severance.

[22]

On this point, the application judge found, at
    para. 55:

The applicant's position that his severance
    application would likely have been denied based on all the principles
    surrounding joint trials cannot be used as a shield to justify why this
    meaningful step was not taken. The applicant cannot say that he did not take a
    step as he did not think he would be successful, and then rely on that same
    doctrine  severance  as a sword to say that it forms the basis or reason why
    the trial did not proceed within a reasonable timeframe.

[23]

The respondent says, and I agree, that requiring
    an accused person to demonstrate that they have taken sustained, meaningful
    steps to expedite proceedings does not include requiring them to bring motions
    that are doomed to fail. Unmeritorious motions only add to the consumption of court
    time and thus create further delay, if not for the case at hand, then potentially
    for other cases. To quote the respondent, the parties were right to dispense
    with the formality of a severance application and avoid clogging up the system
    and using scarce judicial resources to argue over something that was hopeless.

(2)

Delay Markedly Exceeding the Reasonable Time
    Requirements

[24]

The issue then becomes whether the case had
    taken markedly longer than it should have. On this issue, the appellant points
    to the fact that the application judge found that that the case is not a
    factually or legally complex matter. He also points to the fact that the first
    trial date had been set for a year earlier, and states that this provides a ready-made
    yardstick by which to measure how long the case ought to have taken to get to
    trial. On that latter point, the appellant relies on the decision in
R. v.
    Belle
, 2018 ONSC 7728, 424 C.R.R. (2d) 233, where Harris J. made the point
    that the first trial date provided a ready-made yardstick of the reasonable
    time requirements of the case: at para. 8.

[25]

With respect, I do not agree that the first
    trial date necessarily provides a marker for the reasonable time requirements
    of the case. The practical reality is that first trial dates are often set optimistically
    when it is not certain that the parties will, in fact, be ready for trial. Indeed,
    that was the situation in this case in light of the issues with the co-accused.
    It must be recognized, given the pressures on the parties to set dates in order
    to keep the case moving forward, that a first trial date may be more aspirational
    as to timing than it is realistic.

[26]

The first trial date in
Belle
may have
    been a better measure since the only reason for the loss of the trial date was
    the last-minute disclosure by the Crown of a large amount of information,
    something that the trial judge found should never have happened:
Belle
,
    at paras. 3, 22-24. However, in this case, the first trial date was set
    when there were many indicators that it might not be met. For example, the date
    was set before there had been a judicial pre-trial. Any number of issues might
    have arisen at the judicial pre-trial that would have brought the first trial
    date into question. Further, the parties knew that there were ongoing issues
    respecting the co-accused that could reasonably have been anticipated to
    potentially derail the trial date that had been set. Of course, this is exactly
    what happened.

[27]

My view that the first trial date does not
    necessarily provide an appropriate measure for how long a case should
    reasonably take is reinforced by the decision in
Jordan
. In its
    decision, the court set out what it meant by this second factor. It said, at
    para. 87:

The reasonable time requirements of a case
    derive from a variety of factors, including the complexity of the case, local
    considerations, and whether the Crown took reasonable steps to expedite the
    proceedings.

[28]

These various factors demonstrate why a first
    trial date may not be an accurate measure of how long a case should reasonably take.
    I would point out, on this question, that there is a difference between when a
    trial
might
be completed and when it
should
be completed. As
Jordan
points out, there may be a variety of factors that come to bear on the reasonable
    time requirements of a case. There may be issues such as outstanding
    disclosure, the availability of experts or expert reports, erroneous trial
    estimates, and other issues that may highlight that the first trial date may
    not be an accurate one. Nevertheless, often such trial dates are set expectantly
    and, as I have said, to keep the case moving. Other issues may loom large on
    this point, including the one that drove this case, that is, the actions of a
    co-accused.

[29]

The other important aspect of this second factor
    is the point made in
Jordan
that the case must markedly exceed the
    reasonable time requirements of the case. As stated in
R. v. K.J.M.
,
    2019 SCC 55, 439 D.L.R. (4th) 607, at para. 107:

To be clear, under this branch of the test,
    the issue is not whether the case should reasonably have been completed in less
    time. Rather, it is whether the case took
markedly
longer than it
    reasonably should have. [Emphasis in original.]

[30]

Again, it was easier in
Belle
to
    conclude that the case took markedly longer than it reasonably should have
    because the only reason for the loss of the first trial date was the last
    minute, unexplained delivery of a significant amount of disclosure. That should
    not have happened, and thus it was easier to say that the delay it caused was
    outside the reasonable time requirements for that case.

[31]

However, in this case, the delay was almost entirely
    caused by the actions of the co-accused coupled with the Crowns refusal to
    consider severance. It will be self-evident that cases in which there is more
    than one accused will likely take longer to get through a trial because of the need
    to accommodate the schedules and demands of more parties and more counsel: see
Jordan
,
    at para. 77.

[32]

The history of this case ought to have made it
    clear to all concerned that there were likely to be additional problems caused
    by the co-accused. While the Crown had a good reason to want to avoid
    severance, it nonetheless had to realize that its position on that issue was
    likely to invite additional delay. I note, on that point, that one of the
    factors that
Jordan
identifies in determining whether the case took markedly
    longer than it ought to have is whether the Crown took reasonable steps to
    expedite the proceedings: at para. 87.

[33]

Reinforcing this point is the fact that the
    second trial date, January 21, 2019, was set when the issues surrounding the
    representation of the co-accused were still unsettled. Legal Aid had consumed
    some period of time deciding whether it would agree to a transfer of the
    certificate and appeals from its decision were still outstanding. Further, the
    possibility of a
Rowbotham
application would have had to have been in
    everyones minds, if the refusal of Legal Aid to agree to a transfer was
    upheld. Again, of course, that is what happened.

[34]

In an effort to address these problems, the
    second trial date was set with or without counsel. The immediate concern that
    stipulation provokes is whether, if an accused ultimately does not have
    counsel, they will actually be in a position to proceed. One important
    component of the accused persons ability to proceed is, of course, whether
    they have access to the disclosure in the case. For reasons that are not clear
    on the record, when the second trial date was reached, and the co-accused did
    not have counsel, it became apparent that the co-accused did not have access to
    the disclosure while in custody. Therefore, despite the stipulation of with or
    without counsel, the trial could not proceed. Why the disclosure issue only
    became apparent at that point is also not clear.

[35]

Despite all of these issues, the trial
    ultimately proceeded on the third trial date, still within the 30-month limit
    set by
Jordan
. The application judge considered all of these matters
    and concluded that the case had not taken markedly longer than it reasonably
    ought to have. In particular, the application judge found that the Crowns
    decision not to permit severance was not unreasonable in the context of the
    case.

[36]

As the court said in
Jordan
, at para. 91:

Determining whether the time the case has
    taken markedly exceeds what was reasonably required is not a matter of precise
    calculation. Trial judges should not parse each day or month, as has been the
    common practice since
Morin
, to determine whether each step was
    reasonably required. Instead, trial judges should step back from the minutiae
    and adopt a bird's-eye view of the case. All this said, this determination is a
    question of fact falling well within the expertise of the trial judge. [Citation
    omitted.]

[37]

The application judges decision is entitled to
    deference:
Jordan
, at para. 91. Given the issues with the
    co-accused, all of which were predictable, the trial was undoubtedly going to
    take longer than it otherwise would have. However, in all the circumstances, I
    cannot say that the application judges determination that the case did not
    take markedly longer than it should have, is an unreasonable one. Consequently,
    the appeal fails.

C.

Remedy

[38]

Given my conclusion on the s. 11(b)
    application, I do not need to address the respondents submissions regarding the
    appropriate remedy for a breach, including whether a remedy short of a stay of
    proceedings is available.

D.

Conclusion

[39]

The appeal is
    dismissed.

Released: March 21, 2022 M.T.

I.V.B.
    Nordheimer J.A.

I agree. M.
    Tulloch J.A.

I agree. K. van
    Rensburg J.A.

[1]

R. v. Campbell
, 2019
    ONSC 4228, 446 C.R.R. (2d) 326.


COURT OF APPEAL FOR ONTARIO

CITATION: 11534599 Canada Corp. v. Hume,
    2022 ONCA 224

DATE: 20220318

DOCKET: M52885 (C69657)

van Rensburg, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

11534599 Canada Corp.

Respondent (Moving Party/Appellant)

and

Ivylin Ricketts Hume and Weston
    Rodney Hume

Applicants (Responding Parties/Respondents)

Paul Robson, for the moving party

Elaine S. Peritz, for the responding
    parties

Heard: March 7, 2022 by video
    conference

REASONS FOR
    DECISION

[1]

The moving party 11534599 Canada Corp. (115) seeks review of an order
    of the motion judge, Paciocco J.A., granting an extension of time to perfect its
    appeal on terms that suspended the payment of interest until the appeal was
    perfected.

[2]

This motion arises out of the following circumstances.
115 held a second mortgage on the responding parties home. The
    mortgage was in default when a fire on the property forced the responding
    parties to move out. 115 took possession at that point to satisfy the
    responding parties default under the mortgage. It refused to allow the
    responding parties to pay off their mortgage or to exercise their right to have
    the mortgage assigned.

[3]

The responding parties brought an application seeking,
    among others, a declaration that 115 had taken unlawful possession of their
    home. On June 28, 2021, the application judge, Coats J., found that 115 was not
    in lawful possession of the property and ordered it to accept payment of
    $241,528.72 plus
per diem
interest of $76.58 from March 27, 2021 to
    the date of payment. Upon receipt of payment, 115 was ordered to assign the
    mortgage to a replacement lender who had already provided the responding
    parties with a mortgage commitment (the Coats J. Order).

[4]

115 filed a notice of appeal on July 14, 2021
    and moved for an urgent stay of the Coats J. Order. Justice Thorburn declined
    to grant a stay on July 27, 2021, in part because the responding parties had
    undertaken not to sell the house.

[5]

The deadline for the perfection of 115s appeal
    to this court from the Coats J. Order was August 15, 2021. On October 4, 2021, the
    motion judge granted the extension to perfect the appeal to October 8, 2021 on
    terms. He accepted that, while there was a lack of direct explanation, 115s
    delay was due to inadvertence. However, he found there was also prejudice to
    the responding parties: 115 had attempted to impose preconditions on the
    assignment of the mortgage not provided for in the Coats J. Order, and had
    effectively manufactured a stay of proceedings that it had been denied. In the
    interim, 115 continued to accumulate
per diem
payments on the mortgage
    since it had not yet been assigned.

[6]

However, the motion judge concluded the
    prejudice could be ameliorated, including by imposing a condition that no
per
    diem
payments will be owing for the period caused by the delay in
    perfecting this appeal, as required by the interests of justice. He ordered
    that
per diem
payments be suspended from the date by which the Office
    of the Registrar informed 115 that its appeal would be dismissed if not
    perfected and the date the appeal was perfected. In effect, this was a period
    of one month, between September 7 and October 7, 2021, during which the
    accumulated interest was $2,371.50. The motion judge clearly indicated that,
    but for this term, he would not have granted the extension. 115 was ordered to
    pay the respondents $3,000 in costs for the motion.

[7]

In its written materials supporting its motion, 115
    relied on three arguments. In arguing the appeal, 115 relied on a single
    argument that was not in its factum. The court invited brief written
    submissions from the responding parties. We have received and reviewed those
    submissions.

[8]

115 argued that the motion judge lacked
    jurisdiction to vary the Coats J. Order by suspending the requirement of the payment
    of
per diem
interest provided for in the Coats J. Order from the date
    that the appeal should have been perfected (September 7, 2021) to the date that
    the appeal was perfected (October 7, 2021). It argues that the motion judge, as
    a single judge, substantively altered an order, which can only be done by a
    panel of the court of appeal.

[9]

We disagree. It is unnecessary to determine
    whether, as 115 alleges, the imposition of a term disqualifying the moving
    party from
per diem
interest due to its delay was outside the jurisdiction
    of a single judge of this court when granting an extension of time to perfect
    an appeal. 115s submission depends on the premise that the motion judge
permanently
terminated its entitlement to claim the
    interest accruing during this period. That is not consistent with a fair
    reading of the motion judges order. It does not purport to alter the substance
    of the Coats J. Order; it simply suspends the payment of the
per diem
interest pending the hearing of the appeal and does not affect 115s right to
    pursue this issue in the hearing of the appeal on its merits.

[10]

Moreover, this term of the extension was
    necessary in the interests of justice to address the prejudice that the motion judge
    found would otherwise arise from the extension of the time to perfect. Without
    this term, he stated clearly that he would not have granted 115 the extension
    of time.

[11]

For these reasons, the review motion is
    dismissed. Costs of $4,000 payable to the responding parties, inclusive of
    disbursements and H.S.T.

K.
    van Rensburg J.A.

I.V.B.
    Nordheimer J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Royal Bank of Canada v. Bedard,
    2022 ONCA 227

DATE: 20220321

DOCKET: C68416

Rouleau, Nordheimer and George
    JJ.A.

BETWEEN

Royal
    Bank of Canada

Respondent (Plaintiff)

and

Daniel Bedard and Colleen Bedard

Appellants (Defendants)

Norman Mizobuchi, for the appellant

Catherine Francis, for the respondent

Heard: March 3, 2022, by video conference

On
    appeal from the judgment of Justice Paul Kane of the Superior Court of Justice,
    dated October 2, 2020.

REASONS FOR DECISION

[1]

The appellant appeals the trial judgment
    awarding the respondent Royal Bank of Canada (RBC) the sum of $274,962.38 plus
    pre-judgment interest and costs. The trial judge also ordered that the judgment
    not be released by an order of discharge pursuant to s. 178(1)(e) of the
Bankruptcy
    and Insolvency Act
R.S.C., 1985, c. B-3 (
BIA
).

[2]

RBCs claim was for breach of a conditional
    Sales Contract (Contract) for the purchase of a 2003 57-foot Carver boat (57
    Carver). It claimed payment of the outstanding balance as well as reimbursement
    for costs it incurred seeking to enforce its secured interest in the 57 Carver.
    The enforcement proceeding was unsuccessful as, unbeknownst to RBC, the 57
    Carver had been sold to two subsequent third-party buyers. RBC also alleged that
    the appellants had not used the advance made under the Contract to purchase the
    57 Carver.

[3]

RBC offered to renew the loan with a new maturity
    date and at a higher interest rate. This offer of renewal was made after RBC
    became aware of the alleged breaches by the appellants. The renewal offer appears
    to have been generated by RBCs administration without the knowledge of the RBC
    personnel dealing with the problems with the appellants security. The appellants
    appear to have accepted the offer as they continued to make payments pursuant
    to the Contract at the new interest rate.

[4]

The trial judge allowed RBCs claim.

[5]

The appellants first ground of appeal is that
    the trial judge erred in allowing RBCs claim in fraud. The appellant explains
    that, because the loan was renewed after RBC became aware of the issues with
    respect to the security, it could not advance a claim that it was misled or
    defrauded. In that regard, they rely on
Burrows v. Burke
(1984), 49 O.R.
    (2d) 76 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 139.

[6]

We reject this ground of appeal. As submitted by
    RBC, its claim was for breach of contract. The trial judge acknowledged that,
    when it sent its offer to renew the loan, RBC was aware of the fact that the
    loan proceeds had not been used to purchase the 57 Carver and that the 57 Carver
    had been seized by a third party. The trial judge found, however, that other
    than the maturity date and the interest rate, the renewal of the Contract maintained
    all other terms and conditions including RBCs right to have security in the
    form of the 57 Carver. The continuing obligation of the appellants to provide
    RBC with a security interest in the 57 Carver distinguishes this case from the
Burrows
decision. The appellants continuing failure to provide the security
    constituted a breach entitling RBC to the judgment it obtained in this case.

[7]

The judgment does not, as the appellants allege,
    rest on the trial judges findings and comments regarding the appellants misrepresentations
    that induced RBC to make the loan.

[8]

The second ground of appeal is that the trial
    judge erred in awarding RBC remedies both in contract and in tort. The
    appellants submit that the trial judge could not both decide that RBC had been induced
    to enter into the Contract which entitled it to be returned to the position it
    would have been had the Contract not been entered into and, as well, award RBC
    damages for breach of that Contract.

[9]

We see no error in the trial judges award of
    damages. As we have noted, the claim and recovery in this case were for breach
    of contract and the damage award was made on that basis.

[10]

We acknowledge, however that the judges order
    that the judgment should survive bankruptcy is an error which gave rise to some
    confusion. The trial judge found that the original loan had been obtained by
    means of false pretences or fraudulent misrepresentation. He determined,
    therefore, that an order that the judgment not be released by an order of
    discharge pursuant to s. 178(1)(e) of the
BIA
was warranted.

[11]

The trial judge erred in making this order as he
    did not consider the impact that the renewal may have had on the availability
    of such an order. As noted earlier, at the time of the renewal, RBC was fully
    aware of the problems with respect to the original loan and the security for
    that loan. In our view, the trial judge ought to have left this issue to be
    addressed by the Bankruptcy Court in the event that the appellants are
    petitioned into, or declare, bankruptcy. We therefore conclude that this
    provision of the judgment should be set aside. It will be for the Bankruptcy
    Court to address whether such an order is warranted should the issue ever arise.

[12]

In conclusion, the appeal is allowed in part by
    striking paragraph 4 of the judgment. In all other respects, the appeal is
    dismissed.

[13]

RBC was substantially successful and as a
    result, we award it costs fixed in the all-inclusive amount of $14,000.

Paul
    Rouleau J.A.

I.V.B.
    Nordheimer J.A.

J.
    George J.A.