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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.

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. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an
    order is made under section 486.4, on application of the prosecutor in respect
    of a victim or a witness, or on application of a victim or a witness, a judge
    or justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application
    of the prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for
    the purposes of subsection (2) are

(a) an offence under
    section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence
    committed for the benefit of, at the direction of, or in association with, a
    criminal organization;

(b) a terrorism offence;

(c) an offence under
    subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of
    Information Act
; or

(d) an offence under
    subsection 21(1) or section 23 of the
Security of Information Act
that
    is committed in relation to an offence referred to in paragraph (c).

(3)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for
    an order shall

(a) apply in writing to
    the presiding judge or justice or, if the judge or justice has not been
    determined, to a judge of a superior court of criminal jurisdiction in the
    judicial district where the proceedings will take place; and

(b) provide notice of
    the application to the prosecutor, the accused and any other person affected by
    the order that the judge or justice specifies.

(5)     An applicant for
    an order shall set out the grounds on which the applicant relies to establish
    that the order is necessary for the proper administration of justice.

(6)     The judge or
    justice may hold a hearing to determine whether an order should be made, and
    the hearing may be in private.

(7)     In determining
    whether to make an order, the judge or justice shall consider

(a) the right to a fair
    and public hearing;

(b) whether there is a
    real and substantial risk that the victim, witness or justice system
    participant would suffer harm if their identity were disclosed;

(c) whether the victim,
    witness or justice system participant needs the order for their security or to
    protect them from intimidation or retaliation;

(d) societys interest
    in encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and
    deleterious effects of the proposed order;

(g) the impact of the
    proposed order on the freedom of
expression
of those affected by it; and

(h) any other factor
    that the judge or justice considers relevant.

(8)     An order may be
    subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge
    or justice refuses to make an order, no person shall publish in any document or
    broadcast or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other
    information that could identify the person to whom the application relates as a
    victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

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. Henry, 2022 ONCA 191

DATE: 20220308

DOCKET: C67954

Rouleau, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Casey Matti Henry

Appellant

George (Knia) Singh, for the appellant

Rebecca Schwartz, for the respondent

Heard: March 2, 2022 by video conference

On appeal from the conviction entered by
    Justice Sean F. Dunphy of the Superior Court of Justice on November 12, 2019, and
    from the sentence imposed on January 17, 2020.

REASONS FOR DECISION

[1]

Mr. Henry appeals his conviction, and seeks
    leave to appeal his sentence, on one count of sexual assault.

[2]

The background facts may be stated simply. The appellant
    and the complainant met online. They made plans to meet up that same day. The
    appellant picked the complainant up in his car. He had a friend with him. The appellant
    eventually dropped the friend off in Brampton. The appellant and the
    complainant then went to the appellants place where he showered. He dressed in
    boxers and a t-shirt and lay on his bed. He invited the complainant to join him
    there. Sexual activity took place. The appellant believed it was consensual. The
    complainant says it was not.

[3]

The central issue at trial was consent. Credibility
    played an obvious role in the determination of that issue. The appellant raises
    three grounds of appeal: (i) the trial judge erred in dismissing an application
    under s. 276 of the
Criminal Code
, R.S.C. 1985, c. C-46; (ii) there was
    a reasonable apprehension of bias on the part of the trial judge; and (iii) the
    trial judge erred in his assessment of the credibility of the complainant.

[4]

We do not accept any of these challenges to the
    trial judges decision. In terms of the first ground, evidence of a
    complainants sexual activity extrinsic to the subject matter of the charge is
    presumptively inadmissible:
Code
, s. 276(2);
R. v. Goldfinch
,
    2019 SCC 38, [2019] 3 S.C.R. 3, at para. 40. The issue in this case was whether
    a text message that the complainant sent to the appellant regarding her
    experiences with Black men, along with evidence that the complainant had a
    history of going to bars and meeting men, satisfied the criteria for
    admissibility under s. 276.
[1]
In our view, the trial judge was correct in finding that they did not. In
    particular, we agree with the trial judge that the comments regarding Black men
    were sexual in nature and, considering the context in which they were made,
    including the fact that they were raised by the appellant, are not suggestive
    of any animus on the complainants part. We also agree with the trial judge
    that the contents of the text message regarding her prior experiences were not
    relevant to the issues in the trial and that the evidence about past conduct relating
    to bars was, at best, peripherally relevant.

[5]

On the second ground of appeal, we do not see
    anything in the record that would substantiate the assertion that the trial
    judge exhibited any bias. The fact that the trial judge interjected frequently during
    defence counsels argument of the s. 276 application does not evidence bias. It
    is clear that the trial judge was having some difficulty accepting the points
    that counsel was trying to make, and he made that clear to counsel in an effort
    to get a better explanation. While the trial judge might have been better to restrain
    the frequency of his interventions, in order to avoid creating a potential
    appearance of unfairness, his conduct does not rise to the very high level
    required for a conclusion of bias:
R. v. Ibrahim
, 2019 ONCA 631, 147
    O.R. (3d) 272, at para. 84.

[6]

Further, the fact that the trial judge intervened
    on a few occasions in the course of the appellants cross-examination of the
    complainant but did not exercise more control over the complainant (who was a
    difficult witness) when she was being cross-examined does not demonstrate bias.
    It is up to each trial judge to decide how and how much they will intervene in
    those types of situations. Some judges will do more; some will do less. Bias
    does not necessarily arise from deciding one way as opposed to the other. It is
    worthy of note, on this point, that the trial judge took the same approach when
    the appellant was cross-examined and also proved to be difficult.

[7]

On the third ground of appeal, the appellant has
    not been able to point to anything in the record that undermines the
    conclusions that the trial judge reached regarding the credibility of either
    the complainant or the appellant. The trial judge explained why he believed the
    complainant and, in doing so, he addressed many of the inconsistencies and
    other issues that arose from her evidence. The trial judge also explained the
    difficulties he had with the appellants evidence. Ultimately, that was the
    trial judges call to make. The appellant has failed to identify a proper basis
    that would permit this court to interfere with those findings.

[8]

On the sentence appeal, the trial judge
    correctly identified the range of sentence for this offence as being between
    three and five years. He decided on a sentence of three and one-half years. In
    reaching his conclusion, the trial judge noted that the sexual assault involved
    forced fellatio and vaginal intercourse. He also found that the appellants behaviour
    towards the complainant was demeaning. The trial judges decision on sentence
    is entitled to deference. Absent an error in principle, or the failure to
    consider a relevant factor, or the erroneous consideration of an aggravating or
    mitigating factor, an appellate court is not warranted in intervening:
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. There are no
    such errors, or failures, in this case.

[9]

The conviction appeal is dismissed. Leave to
    appeal sentence is granted but the appeal is dismissed.

Paul Rouleau J.A.

I.V.B. Nordheimer J.A.

J. George J.A.

[1]
We recognize that references to evidence relating to an application
    under s. 276 of the
Criminal Code
are
    covered by a publication ban pursuant to s. 278.95. However, we consider it
    appropriate, in this case, to exercise our discretion to publish our reasons:
R. v. N.H.
,

2021 ONCA 636, 158
    O.R. (3d) 294
.


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. S.R., 2022 ONCA 192

DATE: 20220308

DOCKET: C68687

van Rensburg, Nordheimer and
    George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.R.

Appellant

Maija Martin, for the appellant

Mark Luimes, for the respondent

Heard: January 31, 2022 by
    video conference

On appeal from the conviction entered on
    January 16, 2020 by Justice Irving W. André of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was found guilty of one count each
    of sexual assault, touching for a sexual purpose and invitation to touching for
    a sexual purpose. The trial judge conditionally stayed the sexual assault count
    under
Kienapple
, and entered convictions on the other two charges. The
    appellant appeals his convictions.

[2]

For the reasons that follow, we allow the
    appeal, set aside the convictions, and direct a new trial.

[3]

The events giving rise to the charges were
    alleged to have occurred in 2015 and 2016 when the complainant, M.B., was eight
    and nine years old. She had been attending karate classes at a martial arts gym
    or dojo. The appellant was 60 years old at the time, and had been her
    instructor for a couple of years. M.B. alleged several instances of
    inappropriate touching by the appellant at the gym. M.B. eventually complained
    to her father and reported the incidents to the police. The appellant was
    arrested and charged the same day.

[4]

M.B. was 12 years old at the time of the trial.
    Her police statement was introduced in evidence under s. 715.1 of the
Criminal
    Code
, and she testified. M.B.s father and the appellant also testified.

[5]

M.B. testified that, when she and the appellant were
    alone, the appellant had on five or six occasions removed his pants and
    underwear and exposed his penis to her in the practice area, and on one
    occasion he told her to grab his penis in order to throw him. She testified
    that the appellant had reached under her top and tickled her breast while the
    other students were on a water break, and that, on another occasion, he had looked
    inside her pants in the girls change room during a water break.

[6]

The appellant testified through an interpreter.
    He denied that he had touched M.B. inappropriately, that he had ever taken off
    his clothes in front of her, or that he had exposed his penis and invited her
    to touch it. He testified that he was never alone with M.B., who was a member
    of a class with several students, and that there was a glass door, which was
    always open, but no curtain between the gym area and the room where parents
    would wait for their children. He also initially testified that he had a good
    relationship with M.B.s father, but he went on to recount various
    disagreements they had, including a confrontation over M.B.s sister eating
    candy in the dojo, which he claimed had taken place the day that M.B.s father
    confronted him with M.B.s allegations.

[7]

The trial judge stated that he disbelieved the
    appellants evidence and that it was incapable of raising a reasonable doubt
    in the Crowns case. He found M.B.s evidence both credible and reliable, and he
    concluded that, based on the totality of the evidence that he accepted, the
    Crown had proven the offences beyond a reasonable doubt.

[8]

The appellant raises three grounds of appeal,
    which he contends individually or together warrant a reversal of his
    convictions and a new trial: (1) the trial judges assessment of his
    credibility was based on material misapprehensions of his evidence; (2) the
    trial judge did not assess the credibility or reliability of the evidence of M.B.s
    father, and did not consider whether parts of his evidence, together with the
    appellants evidence, were capable of raising a reasonable doubt; and (3) the
    trial judge erred in concluding that M.B. had no motive to lie, and in treating
    this as affirmative evidence that she was telling the truth.

[9]

We turn now to the first ground of appeal. The
    appellant asserts that the trial judge misapprehended his evidence in three
    respects. The first two misapprehensions, which are conceded by the Crown, are
    relevant to the appellants opportunity to commit the offences, which was a
    live issue at trial.

[10]

First, the trial judge wrongly believed that the
    Crown had established an inconsistency in the appellants evidence stemming
    from his statement to the police about whether there was a curtain separating
    the practice area from the waiting area. The trial judge stated:

[The appellant] testified that he never had a
    curtain in the practice area that restricted the view of parents of the dojo.
    In cross-examination the Crown put to him that he told the police that there
    was a curtain. When confronted by this discrepancy, [the appellant] replied
    regarding his statement to the police that, I was nervous. My brain shut
    down.

[11]

In fact, there was no such exchange. The
    appellant testified that there was no curtain in the studio, which was inconsistent
    with M.B.s evidence, but consistent with that of her father. While the
    appellant provided a statement to the police at the time of his arrest, there
    was no evidence that he spoke about a curtain. The appellant was not confronted
    with any apparent inconsistency on this point. He did state that he was nervous
    and that his brain shut down while speaking to police, but this was not in relation
    to comments made about a curtain.

[12]

The second misapprehension of the appellants
    evidence was in the trial judges statement that the appellant testified in-chief
    that he did not keep track of which students did not attend his classes, but
    stated in cross-examination that he did. Again, the trial judge was pointing
    to an inconsistency in the appellants evidence that did not exist. The appellant
    did not testify that he did not keep track of the students attendance: his
    evidence in chief was that the number of students in his classes fluctuated,
    and in cross-examination he testified that he knew how many students were there
    because he had papers for them.

[13]

The third alleged misapprehension of the
    appellants evidence was with respect to the appellants failure to inform the
    police about his disagreements with the complainants father. The trial judge
    stated that the appellant conceded that he never told the police about the
    problem he testified that he had with M.B.s father concerning the fathers
    distribution of religious flyers at the gym, and replied that the police never
    asked him about that. The trial judge identified this as a significant
    omission given the appellants testimony that he had this problem with M.B.s
    father for a long time. However, the appellant gave a number of reasons why he
    had not told the police about the problem he had with the flyers, including that
    his English was not good. In his re-examination, he was asked whether the
    police had asked him about his relationship with the father, and he responded
    no.

[14]

We agree that, in each of these instances, the
    trial judges misstatements of the appellants testimony reveal a
    misapprehension of the evidence. However, a
mere
    misstatement or inaccuracy in a trial judge's treatment of the evidence does
    not constitute a reversible error. The test for concluding that a misapprehension
    of evidence has resulted in a miscarriage of justice, such as to warrant
    setting aside a conviction, is stringent.
The court will
    interfere only where the misapprehension is of
substance
rather than
    detail, is
materia
l rather than peripheral to the trial judges
    reasoning, and the error plays an
essential part in the reasoning process
,
    not just of the narrative:
R. v. Cloutier
, 2011
    ONCA 484, 272 C.C.C. (3d) 291, at para. 60.

[15]

Where the alleged misapprehension is respecting
    evidence used to assess credibility, the decision whether a miscarriage of
    justice has occurred turns on the extent to which the misapprehended evidence
    played a role in the trial judges credibility assessment:
R. v. Alboukhari
, 2013 ONCA 581, 310
    O.A.C. 305, at paras. 36-37. If the trial judge mischaracterized parts of the
    accuseds evidence that were central to the assessment of credibility, there is
    more likely to be a miscarriage of justice:
Alboukhari
, at para. 38, citing
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R. 5, and
Whitehouse
    v. Reimer
(1980), 34 A.R. 414 (C.A.).

[16]

The appellant submits that the trial judges
    misapprehensions of his evidence were substantial and material, in that they
    played a central role in his credibility assessment. The Crown contends that,
    while there were two errors, they were in respect of only secondary aspects of
    the trial judges credibility assessment, and that the trial judges rejection
    of the appellants evidence and his conclusion that it did not raise a
    reasonable doubt are firmly supported by other aspects of the trial judges
    analysis.

[17]

In our view, the trial judges misapprehensions of
    the appellants evidence, and in particular the first two, which are conceded
    by the Crown, were substantial errors that played a central role in the trial
    judges assessment of the appellants credibility, and as such in his reasoning
    process in finding the appellant guilty. Since this was a case that turned on
    credibility, the misapprehensions resulted in a miscarriage of justice.

[18]

In coming to this conclusion, we have considered
    and rejected the Crowns submission that the misapprehensions of the
    appellants evidence were minor, and therefore not substantial. We also disagree
    with the Crowns submission that the trial judges misapprehensions of the
    appellants evidence did not form part of his reasoning about the appellants
    credibility, that they were, according to the Crown, on a secondary list, and
    that the trial judges finding that the defence evidence was incredible was
    driven instead by his wholesale rejection of the appellants evidence about the
    actions of M.B.s father (as being a possible motive for the allegations).

[19]

The misapprehensions of the appellants evidence
    did not involve peripheral or inconsequential matters, and they were central to
    the trial judges credibility analysis. The trial judges credibility
    assessment did not, as the Crown suggests, turn on the trial judges rejection
    of the appellants evidence about the actions of M.B.s father. While the trial
    judge used the word incredible to describe the appellants evidence about the
    actions of M.B.s father, this was not, as the Crown argues, the trial judges rejection
    of the core defence narrative. Rather, the trial judge rejected a specific
    aspect of the appellants evidence, that related to a possible motive for the
    complainant to have lied.

[20]

Indeed, after addressing this point, the trial
    judge immediately stated that there were other aspects of the appellants
    testimony that made him seriously question his credibility. After listing four
    such aspects, including the three misapprehensions identified above, the trial
    judge stated:

Viewed in isolation, these concerns may not be
    regarded as significant. Cumulatively, however, they have led me to disbelieve
    [the appellants] testimony and to conclude that his testimony is incapable of
    raising a reasonable doubt in the Crowns case.

[21]

Accordingly, the trial judges reasons make it
    clear that his assessment of the appellants credibility depended on all of the
    circumstances he identified, including the evidence he misapprehended, which
    suggested that the appellant had been impeached. This led the trial judge, in
    his
W.(D.)
analysis, to both reject the appellants evidence and to
    conclude that it was incapable of raising a reasonable doubt. For these
    reasons, we are satisfied that this ground of appeal has merit.

[22]

While this is sufficient to allow the appeal, we
    briefly address the remaining grounds of appeal.

[23]

The appellants second ground of appeal, that
    the trial judge failed to address the credibility and reliability of the
    evidence of M.B.s father, has two parts. The first is that the trial judge
    failed to apply a
W.(D.)
analysis to an exculpatory utterance elicited
    as part of the Crowns case: the evidence of M.B.s father that, when he
    confronted the appellant with M.B.s allegation, the appellant responded that
    nothing happened.

[24]

We see no error here. Because the general denial
    by the appellant lacked probative value, the trial judge was not required to
    link this evidence to his
W.(D.)
analysis: see
R. v. P.S.
,
    2019 ONCA 637, at paras. 47 and 53. The minimal relevance of this exchange is underscored
    by defence counsels failure to mention it in closing submissions: see
R.
    v. Frater
, 2020 ONCA 624, at para. 22.

[25]

The second argument on the second ground of
    appeal is that the trial judge erred in not assessing the evidence of M.B.s
    father, when there were contradictions between the evidence of the complainant
    and her father, and the fathers evidence was consistent in certain respects
    with that of the appellant. The trial judge failed to consider, as he was
    invited by the appellants trial counsel to do, whether the evidence of M.B.s
    father, together with the appellants evidence, raised a reasonable doubt.

[26]

The Crown contends that the trial judges treatment
    of the evidence of M.B.s father was sufficient and responsive to the issues in
    the trial. The trial judge reviewed the evidence of M.B.s father in his
    reasons and adverted to it in his analysis of M.B.s credibility. There was no
    obligation for the trial judge to resolve every discrepancy in the evidence.

[27]

The appellant points to aspects of the evidence
    of M.B.s father that contradicted M.B.s evidence and were consistent with his
    own: whether there was a curtain between the practice and waiting areas (M.B.
    said there was, while her father and the appellant said that there was not);
    whether the appellant had left M.B. with other parents when her father was late
    to pick her up (M.B. denied this had happened, while her father and the
    appellant agreed that it had happened occasionally); whether M.B.s sister had
    been in the practice area (M.B. said she was never there, while her father and
    the appellant said she had been there and ran around); and whether M.B.s
    father sometimes stayed to watch the lessons (M.B. said no, while her father
    and the appellant were consistent that this sometimes happened).

[28]

These aspects of the evidence of M.B.s father
    might or might not have played a role in the credibility assessments of both
    the appellant and the complainant. In our view, however, it was an error for the
    trial judge to have failed to conduct such an assessment. Before rejecting the
    appellants evidence and concluding that it was incapable of raising a
    reasonable doubt, the trial judge ought to have referred to and assessed the
    credibility of the evidence of M.B.s father. While a trial judge is not
    required to deal with every piece of evidence in a trial, where, as here, there
    are aspects of the evidence of a witness that contradict the complainants
    evidence and support the evidence of the accused, the trial judge should
    demonstrate that he has taken such evidence into account in his
W.(D.)
analysis: see
R. v. Smith
, 2020 ONCA 782, 69 C.R. (7th) 126, at paras.
    12 and 26-28;
R. v. C.G.
, 2021 ONCA 809, 407 C.C.C. (3d) 552, at
    paras. 57-61; and
R. v. Clouthier
, 2012 ONCA 636, at paras. 12-16.

[29]

As for the third ground of appeal, the appellant
    contends that the trial judge, in convicting him, improperly relied on what he
    found to be a proven absence of motive for M.B. to have lied. The appellant
    points to two passages in the trial judges reasons: first, where the trial
    judge stated, there is an absence of motive for M.B. to have lied about the
    allegations, and later when he said, I cannot identify any evidence that M.B.
    had a motive to lie. At best, there was an absence of a proven motive, which
    could have been a factor in assessing her credibility, so long as it did not
    drive the analysis:
R. v. Ignacio
, 2021 ONCA 69, 400 C.C.C. (3d) 343, at
    para. 59, leave to appeal refused, [2021] S.C.C.A. No. 127.

[30]

However, a fair reading of the trial judges
    reasons suggests that he rejected the motive alleged by the defence, and he
    considered the apparent absence of M.B.s motive to lie as a factor in
    assessing her credibility. This is apparent from his citation of
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412,
immediately following the first impugned passage, and the acknowledgment later
    in his reasons that the complainant could have had some hidden motivation. As
    in
Ignacio
, at para. 35, the trial judge was required to consider
    motive to fabricate due to the defence allegation that the complainant had a
    motive to fabricate. In its closing submissions, Crown counsel argued that,
    although it had not proven an absence of motive beyond a reasonable doubt, the
    absence of evidence of motive was a factor to be considered in the overall
    assessment of the evidence. After looking at the evidence, and rejecting the
    appellants account of his confrontation with M.B.s father over her sister
    eating candy in the dojo, the trial judge was entitled to conclude that there
    was no evidence of a motive to fabricate, and then to consider this as one
    factor in his assessment of the complainants credibility. Contrary to the
    appellants submission, the trial judge did not mistake a lack of evidence of a
    motive for a proven absence of motive to lie.

[31]

For these reasons we allow the appeal, set aside
    the appellants convictions, and direct a new trial on all of the charges.

K.
    van Rensburg J.A.

I.V.B.
    Nordheimer J.A.

J.
    George J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Crown Capital Private Credit Fund v. Mill Street & Co.
    Inc., 2022 ONCA 194

DATE: 20220308

DOCKET: C69450

Feldman, Tulloch and Miller JJ.A.

BETWEEN

Crown Capital Private Credit Fund, LP, by its general partner, Crown
    Capital Private Credit Management Inc.

Applicant

and

Mill Street & Co. Inc.

Respondent

Micheal Simaan, for the appellants,
    997322 Ontario Inc., Monica Murad and Aaron Murad

Shayne Kukulowicz, Ted Frankel and
    Monique Sassi for the respondent, A. Farber & Partners Inc.

Heard: February 28, 2022 by video conference,
    with further submissions filed in writing

On
    appeal from the order of Justice Markus Koehnen of the Superior Court of Justice,
    dated May 5, 2021.

REASONS FOR DECISION

[1]

The appellants are Monica Murad and Aaron Murad,
    two members of the Murad family, who together with the corporations they
    control, both individually and together, were referred to by the Receiver
    throughout the receivership of Mill Street & Co. Inc. as the Murad Parties.
    Mill Street and its subsidiaries are owned by members of the Murad family.

[2]

The motion judge found that the Murad Parties raised
    ongoing obstacles to the operation of the receivership and obstructed the Receiver,
    including by asserting a fraudulent licensing agreement purporting to license
    certain software by one Murad entity to another. They produced a forged
    document to make this claim.

[3]

In order to facilitate the sale of the debtor
    companys interest in another Murad corporation, the motion judge made a
    non-competition order against all of the Murad Parties, including the
    appellants. Counsel at the hearing objected on behalf of the appellants because
    they were not specifically implicated in the obstruction or the fraudulent
    licensing agreement.

[4]

The motion judge determined that it was
    nevertheless appropriate to include the appellants in the order because the
    Murad companies are operated as family businesses with all members of the
    family involved. The Receiver referred to the Murads or the Murad Parties
    throughout its reports.

[5]

Section 193 of the
Bankruptcy and Insolvency
    Act
, R.S.C. 1985, c. B-3 sets out the jurisdiction for an appeal of an
    order made in a bankruptcy proceeding. The appellants submit that this court
    has jurisdiction under s. 193(a) or, in the alternative, that leave to appeal
    should be granted under s. 193(e).

[6]

Section 193(a) grants jurisdiction where the
    point at issue involves future rights. Caselaw has established that present
    rights altered by the order are not future rights:
Ravelston Corp. (Re)

(2005), 24 C.B.R. (5th) 256

(Ont. C.A.),

at para. 18. The
    right to compete is a present right. Therefore, there is no right of appeal
    under s. 193(a).

[7]

The three-part test for granting leave to appeal
    under s. 193(e) was recently restated in
James Henry Ting (Re)
, 2021 ONCA
    622, at para. 5: there must be an issue of general importance, that is
prima
    facie
meritorious, and the appeal would not unduly hinder the progress of
    the insolvency proceeding.

[8]

The appellants assert that the issue of making a
    non-competition order against a non-party is one of general importance.

[9]

However, that issue does not arise in this case
    because the appellants are Murad Parties in this receivership, so found by
    the motion judge, and have been treated as parties throughout the proceeding.

[10]

The appeal is therefore quashed, with costs payable to the
    respondent. If the parties are unable to agree on costs, the respondent may
    file a written submission of no more than two pages in length plus a bill of
    costs within four days of the date of the release of these reasons. The
    appellants may file a responding written submission of no more than two pages
    in length within seven days of the same date.

K. Feldman J.A.

M. Tulloch J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
1250140 Ontario Inc. v. Bader, 2022 ONCA 197

DATE: 20220309

DOCKET: C69480

Trotter, Coroza and Favreau JJ.A.

BETWEEN

1250140 Ontario Inc.

Plaintiff (Respondent)

and

Parveneh Bader, also known as Pamela
    Bader

Defendant (Appellant)

Heath P.L. Whiteley, for the appellant

Alexander Hora, for the respondent

Heard: February 18, 2022 by
    videoconference

On appeal from
    the order of Justice Frederick L. Myers of the Superior Court of Justice, dated
    April 15, 2021.

REASONS FOR DECISION

[1]

The appellant, Pamela Bader, appeals an order
    finding her liable to pay 1250140 Ontario Inc. (125) $243,992.11 in respect
    of a mortgage debt assumed in 2008.

[2]

The motion judge found that the action was not
    barred by the 10-year limitation period in s. 23(1) of the
Real Property
    Limitations Act
, R.S.O. 1990, c. L.15 (the
RPLA
) because Ms.
    Bader acknowledged the debt within this time frame. Finding that there was no
    genuine issue for trial, the motion judge granted summary judgment in favour of
    125.

[3]

Ms. Bader challenges the motion judges
    conclusions on the applicability of the
RPLA
, and whether she
    acknowledged the debt. We do not accept her submissions and dismiss the appeal.

Background

[4]

In 2008, 125 advanced a loan to Ms. Bader. She
    granted a seventh-ranking mortgage on her home as security. She defaulted on
    the loan that same year.

[5]

In 2010, a higher-ranking mortgagee commenced
    foreclosure proceedings. In that proceeding, on November 15, 2010, Ms. Bader
    swore an affidavit in which she said a charge dated March 25, 2008 in the
    amount of $190,000 in favour of [125] was registered on her property. She
    later indicated her understanding that $243,992.11 was owing to 125 in respect
    of the Seventh Mortgage. Ms. Bader concluded her affidavit by stating:
    Ultimately, I want [the property] sold at a fair price which enables payment
    of all
bona fide
debts owing on the Property and returns my equity and
    life savings in the Property to me.

[6]

On November 15, 2010, 125 commenced a separate
    action against Ms. Bader on the covenant in the mortgage to recover the amount
    owing. However, that action was administratively dismissed for delay on July
    15, 2011.

[7]

On March 29, 2011, the Superior Court approved
    the sale of the property in the foreclosure action. There were insufficient
    funds to satisfy Ms. Baders indebtedness to 125.

[8]

On December 2, 2019, 125 commenced another
    action, again seeking to recover the amount owning under the loan. It also sought
    to set aside the dismissal of its previous action. That motion was
    unsuccessful.

[9]

125 moved for summary judgment on its 2019
    action. The question before the motion judge was whether the claim was statute
    barred, given that Ms. Baders debt to 125 was incurred in 2008 (more than 10
    years earlier).

[10]

The motion judge observed that neither party
    disputed that s. 23(1) of the
RPLA
applied. The section provides that
    a claim falling within the ambit of the
RPLA
expires after 10 years:

23(1)
No
    action shall be brought to recover out of any land or rent any sum of money
    secured by any mortgage or lien, or otherwise charged upon or payable out of
    the land or rent, or to recover any legacy, whether it is or is not charged
    upon land, but within ten years next after a present right to receive it
    accrued to some person capable of giving a discharge for, or release of it,
unless
    in the meantime some part of the principal money or some interest thereon has
    been paid, or some acknowledgment in writing of the right thereto signed by the
    person by whom it is payable
, or the persons agent, has been given to the
    person entitled thereto or that persons agent, and in such case no action
    shall be brought but within ten years after the payment or acknowledgment, or
    the last of the payments or acknowledgments if more than one, was made or
    given. [Emphasis added.]

[11]

The motion judge found that Ms. Bader
    acknowledged the debt in her affidavit in the foreclosure proceedings, thereby
    extending the limitation under s. 23 of the
RPLA
. As he said in his
    reasons, [t]his is not just any old acknowledgment in writing. It is sworn
    testimony before the court in a proceeding in which both the defendant and the
    plaintiff were named parties.

Discussion

[12]

The appellant submits that s. 23 of the
RPLA
did not apply in the circumstances of this case because, by the time 125
    commenced its 2019 action, the property had been sold. The appellant submits
    that s. 23 applies only to actions for
in rem
remedies. In this case,
    because the property had already been sold, it was a proceeding for an
in
    personam
remedy. As such, the
Limitations Act
, 2002
, S.O.
    2002, c. 24, Sched. B applied and the action was time barred. We do not accept
    this submission.

[13]

First, this submission was not made before the
    motion judge. Ms. Bader did not raise this issue in her Statement of Defence.
    Instead, she simply took the position that the 10-year limitation had expired.
    As discussed below, she disputed that she had acknowledged the debt in the
    interim. Moreover, Ms. Baders Notice of Appeal failed to raise this issue. It
    was first raised by new counsel (Mr. Whiteley) when he filed a Supplementary
    Notice of Appeal.

[14]

Raising a new issue for the first time on appeal undermines the
    important interest of finality in judicial proceedings. It leads to
    inefficiencies in the adjudicative process. It places this court in the role of
    a first instance decision-maker, rather than a reviewing court. No explanation
    was provided for this change in position on appeal. In these circumstances, an
    appellate court should be reluctant to entertain the new submission: see
Albert
    Bloom Limited v. London Transit Commission
, 2021 ONCA 74, at para. 46.

[15]

Nonetheless, we do not accept that s. 23 of the
RPLA
only
    applies when the mortgagor is still in the possession of the property or when
    the proceeds of the realization of the property have yet to be distributed. Section
    23 makes no such distinction. No cases directly support Ms. Baders position.

[16]

Put simply, s. 23 of the
RPLA
governs actions about claims
    to real property: see
Equitable Trust v. Marsig
, 2012 ONCA 235, 109
    O.R. (3d) 561, at para. 27. When Ms. Bader assumed her debt to 125, it was
    secured by a mortgage on the property. This was not a situation where the land
    was incidental to an action based in negligence, breach of contract, breach of
    fiduciary duty, or some other basis of liability:
Zabanah v. Capital Direct
    Lending Corp.
, 2014 ONCA 872, 123 O.R. (3d) 350. Rather, the claim for
    debt was based on a covenant in the mortgage, and the land, as security for the
    debt, was critical to that claim.

[17]

Ms. Bader has provided no support for the contention that a mortgagee
    becomes disentitled to the longer limitation period in the
RPLA
when
    the property in question has been disposed of in the meantime. While the land may
    be out of reach for enforcement purposes, there is no principled reason why a
    mortgagee should be prevented from pursuing an action for any money still owing,
    as long as the claim is commenced within the limitation period set out in the
RPLA
.
    The prospect of a shifting limitation period, tied to the disposition of the
    property in issue, would only foster uncertainty in the application of the
RPLA
.

[18]

This ground is dismissed.

[19]

We also dismiss Ms. Baders challenge to the motion judges finding
    that she had acknowledged the mortgage debt in her 2010 affidavit. It was open
    to the motion judge to conclude that Ms. Bader acknowledged the debt. There is
    no requirement that such an acknowledgment must reflect an awareness of the
    precise amount owing, nor must it be accompanied by a promise to pay.

Disposition

[20]

The appeal is dismissed. The respondent is entitled to costs in the
    amount of $10,000, inclusive of taxes and disbursements.

Gary Trotter J.A.

S. Coroza J.A.

L. Favreau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Iqbal v. Mansoor, 2022 ONCA 198

DATE: 20220308

DOCKET: M53119 (C65591)

Fairburn A.C.J.O., Trotter and
    Thorburn JJ.A.

BETWEEN

Musharraf Iqbal

Applicant

(Appellant/Moving Party)

and

Sohail Khawaja Mansoor and Gold
    International Inc.

Respondents

(Respondents/Responding Parties)

Musharraf Iqbal, acting in person

No one appearing for the responding
    parties

Heard: March 4, 2022 by video
    conference

REASONS FOR DECISION

[1]

The applicant brought a motion for an order
    extending the time to pursue a motion to set aside the order of Coroza J.A.,
    dated August 13, 2020. Coroza J.A. had refused a request for an extension of
    time to bring a motion for leave to appeal two costs orders. On December 22,
    2021, Tulloch J.A. dismissed the motion for an extension of time. The applicant
    now seeks a review of Tullochs J.A.s order and asks that it be set aside.

[2]

The decision on an application to extend time is
    a discretionary one and owed deference:
Machado v. Ontario Hockey
    Association
, 2019 ONCA 210,

at para. 9. Therefore, a panel review of that decision is not a
de novo

hearing, but one that focusses upon whether the motion judges decision
    reflects legal error or a misapprehension of material evidence. The applicant
    seeks to set aside Tulloch J.A.s decision on both these bases.

[3]

First, the applicant says that the impugned
    decision contains an error in principle in relation to the finding of
    prejudice. We do not agree. Read as a whole, the reasons do not suggest that
    prejudice was found solely on the basis that the respondents would incur legal
    expense were the matter allowed to proceed. In our view, the impugned reasons make
    clear that the prejudice is much wider in nature, including that, given the very
    lengthy delay at this point, it would be difficult for the respondents to
    meaningfully respond. This was a discretionary conclusion available to Tulloch
    J.A.

[4]

Second, the applicant suggests that Tulloch J.A.
    misapprehended the material evidence in relation to the merits of the appeal.
    The applicant says that Tulloch J.A. did not appreciate a piece of evidence
    establishing that the arbitrator refused to intervene because the arbitrator believed
    that he did not have jurisdiction to determine the issue of costs.

[5]

We see no error in Tulloch J.A.s understanding
    of the record. As is clear from that record, the arbitrator made an award of
    costs based on the information that was placed before him at the time. The
    arbitrator simply noted that, after he issued his order based on the
    information available to him at that time and the requests made by the
    applicant for costs, it was no longer open to the arbitrator to consider
    another costs request. Accordingly, Tulloch J.A. did not misapprehend the
    evidence when he arrived at the conclusion that the applicant had only claimed
    for damages, without factoring in the entire costs of the proceedings.

[6]

As Tulloch J.A. did not make a legal error or
    misapprehend the evidence, the application to review the decision arising from
    this single judge motion is dismissed. The dismissal of the application arising
    from the Tulloch J.A. decision is necessarily dispositive of the attempt to
    have the decision of Coroza J.A. reviewed.

Fairburn A.C.J.O.

G.T. Trotter J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Donovan v. Waterloo (Police
Services Board), 2022 ONCA 199

DATE: 20220310

DOCKET: C69467

Strathy C.J.O., Roberts and
Sossin JJ.A.

BETWEEN

Kelly
Lynn Donovan

Plaintiff/Responding Party (Appellant)

and

Waterloo Regional Police
Services Board and Bryan Larkin

Defendants/Moving Parties (Respondents)

Kelly Lynn Donovan, acting in person

Donald B. Jarvis and Clifton Yiu, for
the respondents

Heard: February 14, 2022 by video conference

On appeal from the order of Justice Thomas
A. Bielby of the Superior Court of Justice, dated April 19, 2021, with reasons
reported at 2021 ONSC 2885, and from the costs order, dated May 28, 2021.

REASONS FOR DECISION

[1]

This is an appeal from the motion judges order
pursuant to r. 21.01(3)(a) of the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194, dismissing this action for lack of jurisdiction.

Background to
the Appellants Resignation and this Action

[2]

The appellant is a former police officer,
employed by the respondent Waterloo Regional Police Services Board (the
Board). Her employment was subject to the terms of a collective agreement.
The respondent Bryan Larkin (Larkin) was the Chief of Police.

[3]

The following is a brief summary of the events
giving rise to these proceedings.

[4]

In May 2016, the Board gave the appellant notice
of an investigation under the
Police Services Act
, R.S.O. 1990, c.
P.15 (the
PSA
) related to her alleged disclosure of confidential
information to the Board. On June 2, 2016, the appellant filed an application
with the Human Rights Tribunal of Ontario (the HRTO), alleging that that
Board had discriminated against her on the basis of sex and marital status.

[5]

In February 2017, the appellant took medical
leave for post-traumatic stress disorder as a result of observing an accidental
shooting while studying to become a police constable at the Ontario Police
College in February 2011.

[6]

On June 8, 2017, the appellant entered into an
agreement (the Resignation Agreement) with the Board. The appellants
bargaining agent, the Waterloo Regional Police Association, was a party to the
Resignation Agreement. That agreement expressly recognized that the appellant
and the Board had an employee-employer relationship and that the appellant had
notified the Board that she would be resigning her employment effective June
25, 2017.

[7]

The Resignation Agreement recited the parties
desire to fully resolve and settle the outstanding matters between them,
namely the appellants HRTO application and the Boards investigation into the
appellant and the potential charges she faced under the
PSA
. It stated
that the parties agreed upon full and final settlement of all matters related
to [the appellants] employment with or cessation of employment with the Board,
and all other outstanding matters between them. It was a term of the
Resignation Agreement that the terms and existence of the agreement would be
kept confidential except as required by law, disclosure to immediate family, or
disclosure to professional persons providing advice. The parties also agreed to
exchange releases and the appellant signed a full and final release that was
appended to the Resignation Agreement.

[8]

Although the Resignation Agreement is redacted,
it is apparent that the appellant was paid some compensation in respect of her
legal expenses incurred in connection with the HRTO proceedings and the potential
PSA
charges. She was also paid a lump sum payment, net of applicable
deductions and remittances required by law, presumably as compensation for the
termination of her employment.

[9]

In May 2018, the appellant commenced this
action, alleging a breach of the Resignation Agreement, seeking monetary
damages and reinstatement to employment. She pleaded that Larkin had breached
the Resignation Agreement because he had sworn an affidavit in defence of a
class action against the Board, in which he allegedly disclosed information
capable of identifying her as having resigned from the police force. The
affidavit was allegedly posted on a website maintained by plaintiffs counsel
in the class action.

[10]

In June 2018, the Board filed an application for
contravention of settlement with the HRTO, alleging that the appellant had
repeatedly contravened the terms of the Resignation Agreement by stating that
she had been constructively dismissed by the Board. The appellant filed a
response and her own application for contravention of settlement in July 2018,
alleging that Larkin breached the Resignation Agreement by swearing the
affidavit in the class action.

[11]

On February 1, 2019, Favreau J., as she then
was, dismissed a motion brought by the appellant to dismiss the Boards
application to the HRTO, finding that the Superior Court had no jurisdiction to
do so:
Donovan v. (Waterloo) Police Services Board
, 2019 ONSC 818, 49
C.P.C. (8th) 141. At para. 56 of her reasons, Favreau J. observed that it would
be open to the appellant to raise before the HRTO the issue of jurisdiction over
the enforcement of the Resignation Agreement and to respond to the Boards
position concerning the effect of that agreement:

during the hearing of this motion, I sought
assurances from the Board that it would not impede Ms. Donovans ability to
make substantive arguments before the Human Rights Tribunal despite the fact
that she may have missed some deadlines. In response, the Boards counsel gave
an undertaking in court not to take the position before the Tribunal that Ms.
Donovan is out of time to raise substantive arguments in response to the
application. Therefore, subject to the Tribunals ability to control its own
process, at the Tribunal hearing Ms. Donovan should be allowed to raise issues
she may wish to address about the Tribunals jurisdiction over enforcement of
the Resignation Agreement and to fully respond to the Boards position that the
Resignation Agreement precludes her from speaking publicly about the matters
the Board claims are captured by the confidentiality provision of the agreement.

The Motions in the Superior Court of Justice

[12]

The respondents originally brought a motion to
strike this action on three grounds: (i) r. 21.01(1)(b) (no reasonable cause of
action); (ii) r. 21.01(3)(a) (no jurisdiction over the subject matter); and
(iii) r. 21.01(3)(d) (frivolous or vexatious or an abuse of process). Doi J.
(the original motion judge) dismissed the action under r. 21.01(1)(b),
without leave to amend. While the other two grounds were fully argued before
the original motion judge, he did not rule on them.

[13]

On October 25, 2019, this court allowed the
appellants appeal from the order of the original motion judge, set aside the
order dismissing the action and granted the appellant leave to amend her
statement of claim as against Larkin:
Donovan v. Waterloo Regional Police
Services Board
, 2019 ONCA 845. No issues had been raised before this court
with respect to the grounds that were not addressed by the original motion
judge and this court did not address those grounds.

[14]

The statement of claim has gone through four
iterations, the current being a Fresh as Amended Statement of Claim, discussed
below. Pursuant to this courts order, the appellant filed an Amended Amended
Statement of Claim on January 29, 2020.

[15]

Shortly thereafter, counsel for the respondents
sought directions from the original motion judge concerning the two issues that
had not been addressed by his order. He determined that a fresh motion should
be brought before another judge, pursuant to r. 59.06(1) of the
Rules of
Civil Procedure
(sometimes referred to as the slip rule).

[16]

The appellant subsequently filed a Fresh as Amended
Statement of Claim on November 23, 2020. The motion to dismiss the action for
want of jurisdiction was heard by a different judge (the second motion judge)
on February 23 and March 1, 2021. In reasons released April 19, 2021, the
second motion judge dismissed the action on the ground that the essential
character of the dispute involved the appellants employment, which had been covered
by a collective agreement and was subject to the dispute resolution and
arbitration provisions of that agreement: referring to
Weber v. Ontario
Hydro
, [1995] 2 S.C.R. 929; and
Desgrosseillers v. North Bay General
Hospital
, 2010 ONSC 142.

This Appeal

[17]

The matter now comes to us on appeal.

[18]

The issue of jurisdiction calls for us to
consider the pleading in the Fresh as Amended Statement of Claim. In her claim
for relief, the appellant claims against both respondents, jointly and
severally, for breach of contract, misfeasance in public office and negligence.
She also claims separately against Larkin for damages for misfeasance in public
office.

[19]

The appellant pleads that:

·

she entered into a Resignation Agreement on June
8, 2017, which contained a non-disclosure and confidentiality clause, requiring
the parties to keep the existence and terms of the agreement confidential;

·

Larkin took retaliatory action against her as a
result of her complaints to the respondent Board concerning his conduct;

·

Larkin swore an affidavit in defence of a class
action lawsuit against the respondents that claimed damages for systemic and
institutional gender-based discrimination and harassment;

·

attached to Larkins affidavit was a chart
listing HRTO complaints commenced by female employees of the Board within the
preceding five years, including their status or resolution;

·

the affidavit was published on the public
website of the law firm advancing the class action lawsuit;

·

although the affidavit did not identify the
claimants, the chart contained sufficient information to enable the appellant
to be identified as someone who had filed a human rights complaint and had
voluntarily resigned from the Board;

·

by swearing and delivering the affidavit, Larkin
used her, to attempt to stop the efforts of the [appellants] female
colleagues in their fight for justice;

·

the class action was dismissed as a result of a
motion that relied on Larkins affidavit;

·

Larkin was aware of the terms of the Resignation
Agreement, including that it was confidential;

·

by swearing the affidavit, Larkin deliberately
involved her in the class action lawsuit and violated the terms of the
Resignation Agreement, knowing that it would impede her recovery from
post-traumatic stress disorder;

·

in January 2018, the Board appealed a WSIB claim
she had made. Although she does not explicitly plead it, she is presumably
asserting that the Board breached the Resignation Agreement by engaging in
further legal proceedings against her; and

·

she claims the relief as set out in paragraph 1
of the Statement of Claim for two distinct and separate breaches of the
resignation agreement by the defendant Board and the individual defendant.

[20]

The appellant raises five grounds of appeal,
which we address in order.

(1)

Improper Procedure

[21]

The appellant submits that the motion was not
properly before the second motion judge because it could have been addressed by
way of a r. 59.06 motion brought before the original motion judge and prior to
the appeal, by filing a cross-appeal to this court, or filing a r. 59.06 motion
to this court.

[22]

We do not accept this submission.

[23]

As the issue of jurisdiction was not addressed
by the original motion judge or by either party on the previous appeal to this
court, there is no impediment to raising it on this appeal.

[24]

The matter was properly before the second motion
judge, although not pursuant to the slip rule. Rather, a remedy was available
under r. 59.06(1) of the
Rules of Civil Procedure
, to ... obtain
other relief than that originally awarded. Alternatively, it was open to the respondents
to bring a free-standing motion to raise the issue of the courts jurisdiction,
given the delivery of the Fresh as Amended Statement of Claim.

(2)

Jurisdiction

[25]

The appellant submits the Superior Court of
Justice has jurisdiction over her claims and that jurisdiction has not been
removed by arbitral agreement. She relies on
Skof v. Bordeleau
, 2020
ONCA 729, 456 D.L.R. (4th) 236, leave to appeal refused, [2021] S.C.C.A. No. 17.
She argues that there is nothing in the applicable collective agreement to oust
the courts jurisdiction and that as a former member of the police force and no
longer a member of the bargaining unit, she has no standing before the Ontario
Police Arbitration Commission. She submits that, as in
Skof
, she is
seeking a remedy for misfeasance in public office, which does not fall within
the jurisdiction of an arbitrator. She submits that the principles in
Weber
and
St. Anne Nackawic Pulp & Paper v. CPU
, [1986] 1 S.C.R.
704, have no application.

[26]

Skof
is plainly
distinguishable because this court found, at para. 17, the dispute related to
disciplinary proceedings in a regulatory context and did not fall within the
collective agreement. This basis alone justified the second motion judge in
distinguishing
Skof
.

[27]

The second motion judge did precisely what the
authorities require. He searched for the essential character of the dispute
and found, at para. 80, that the Resignation Agreement was executed in the
ambit of the collective agreement and took its essential character from the collective
agreement. It was the product of a negotiated agreement of all outstanding employment
matters between the parties. We see no error in this characterization.

[28]

However, the motion judge did not grapple with
the question of whether the appellant will be permitted, under the collective agreement
or the Resignation Agreement, to invoke the grievance procedure now that she is
no longer employed by the respondent. This affects the outcome.

[29]

In
Skof
, explicit provisions of the
memorandum of agreement unequivocably provided that the collective agreement
did not apply to the appellant in that case, other than with respect to his
salary and benefits, while he was on a leave of absence as the president of the
Ottawa Police Association. As a result, there was no question that the
grievance procedure under the collective agreement was not available to him.

[30]

Here, there is no evidence that the appellant
will be permitted to invoke the grievance procedure now that she is no longer
an employee. The collective agreement is silent with respect to this issue. Moreover,
the Resignation Agreement provides in para. 1 that upon her resignation, she
ceases to be an employee of the Board for any and all purposes at law
whatsoever.

[31]

The record does not permit us to decide this
issue. An arbitrator is best placed to interpret the collective agreement and
the Resignation Agreement and determine whether the appellant is precluded from
invoking the grievance procedure to pursue her remedies.

(3)

Bad Faith

[32]

The appellant submits that in pursuing this
matter, the respondents are acting in bad faith by failing to raise the issue
of jurisdiction in a timely way and that they are using the court process for
an improper purpose. As we find the respondents were entitled to have the issue
of jurisdiction determined, this submission fails.

(4)

Apprehension of Bias

[33]

In her factum, the appellant makes an allegation
of reasonable apprehension of bias against the second motion judge.

[34]

The motion occupied two days, February 23 and
March 1, 2021. Due to the pandemic, the hearings were heard remotely. There was
a Zoom bombing during the first hearing, when unknown persons viewing the
hearing remotely displayed what has been described as sexually explicit and
racist imagery on the screens of all viewers.

[35]

The appellant states that following the hearing,
CBC news published an article that insinuated that she was to blame for the
disruption, because she had shared the public Zoom link with her followers, presumably
referring to her followers on social media. In her factum, she states that she
had distributed the Zoom link and the courts Zoom User Guide for Remote
Hearings to her followers and pointed out to them the section that explains
that court permission was required to share screens. She states that she
believed her followers would only be able to observe the proceeding.

[36]

Subsequently, prior to the March 1, 2021 hearing,
the Regional Senior Judge gave directions that the Zoom details of the March 1,
2021 hearing were not to be published or distributed without the prior written
order of the presiding judge or the Regional Senior Judge.

[37]

On the basis of the foregoing, the appellant
states that she believes that she was wrongfully blamed for the Zoom bombing
incident, and that this resulted in an apprehension of bias against her
because the second motion judge decided in favour of the respondents, which was
a marked departure from established legal principles.

[38]

The appellant did not pursue this issue in oral
submissions, possibly because she had reached the end of her time allocation. However,
she did not expressly withdraw the submission. Asserting that a judge has
departed from the law because of bias against a litigant is a very serious
allegation. Although the appellant is self-represented, her written materials
and oral submissions demonstrated a high level of sophistication. She clearly
appreciates the meaning and consequences of her words. In this case, there was
no evidentiary basis for the allegation, and it can be described as spurious.
Her submission therefore fails.

(5)

Litigation Efficiency

[39]

The appellant submits that the second motion
judge erred in failing to convert the motion before him to a motion for
judgment as the best way to achieve the most just, most expeditious, and least
expensive result, in accordance with r. 37.13(2)(a) of the
Rules of Civil
Procedure
.

[40]

The short answer to this submission is that this
was not fully argued before the second motion judge, and it would not have been
appropriate for him to grant it in these circumstances, nor would it be
appropriate to grant on this appeal: see
McCracken v. Canadian National
Railway Company
, 2012 ONCA 445, 111 O.R. (3d) 745, at para. 141.

Conclusion

[41]

For these reasons, we agree with the respondents
submission that the appellants claims are subject to determination pursuant to
the procedures set out in the collective agreement and the
PSA
. To the
extent that the claim seeks relief that is not available under the collective
agreement or the
PSA
, it is subject to the jurisdiction of the HRTO,
in which both parties have asserted claims that are currently outstanding.

[42]

We therefore dismiss the appeal. In the
particular circumstances of this case, however, we vary the order of the
Superior Court by staying this action until such time as the appellants
remedies under the collective agreement and in the HRTO have been exhausted.

[43]

Only at that point will this court determine
whether it should exercise any residual discretion it may have to grant relief
that is not available under the statutory labour arbitration regime or in the
HRTO.

[44]

In her supplementary notice of appeal, the
appellant indicates that she also wishes to appeal from the costs award below. In
light of our disposition of the appeal and given that the appellant made no arguments
to support this position separately, we see no basis to overturn the costs
award below.

[45]

We did not hear submissions on costs of the
appeal. Costs may be addressed by written submissions. The respondents shall
have 15 days within which to deliver their submissions. The appellant shall
have 15 days after receipt of the respondents submissions to reply. The costs
submissions shall be limited to five pages in length, excluding costs outlines.

G.R.
Strathy C.J.O.
L.B. Roberts J.A.
L. Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Jeff Day Hospitality Inc. v. Heritage Conservation Holdings,
    Canada, Inc., 2022 ONCA 201

DATE: 20220311

DOCKET: C69601

Simmons, Harvison
    Young and Zarnett JJ.A.

BETWEEN

Jeff Day Hospitality Inc.

Applicant (Respondent)

and

Heritage Preservation Holdings,
    Canada, Inc.

Respondent (Appellant)

Jonathan Chen and Aoife Quinn, for the
    appellant

Charles Hammond, for the respondent

Heard: February 24, 2022 by
    video conference

On appeal from the judgment of Justice
    Robert F. Scott of the Superior Court of Justice, dated June 10, 2021.

REASONS FOR DECISION

[1]

The appellant appeals from a judgment that requires
    it to perform its obligations under an Agreement of Purchase and Sale (APS)
    dated January 20, 2020. In the APS, the appellant agreed to sell a hotel
    property in Jones Falls, Ontario to the respondent for a purchase price of
    $1,375,000. The judgment requires the appellant to close the sale in accordance
    with the terms of the APS; it also authorizes the respondent to hold back
    $500,000 from the purchase price pending determination of the cost of
    rectifying certain deficiencies, which the application judge held were the
    responsibility of the appellant.

[2]

The appellant raises three grounds of appeal: (i)
    that the application judge erred in finding that the parties had actually concluded
    an agreement on all terms in the APS (the contract formation issue); (ii) that
    the application judge erred in failing to find the respondent was in breach of
    the APS on the agreed closing date because the first mortgage it had arranged exceeded
    a limit on such financing found in an implied term of the APS (the implied
    term issue) ; and (iii) that the application judge erred in finding the repair
    of certain deficiencies to be the appellants responsibility under the APS (the
    deficiencies issue).

[3]

For the reasons that follow, we allow the appeal
    as to an aspect of the deficiencies issue. Otherwise, we dismiss the appeal.

(i)

The Contract Formation Issue

[4]

Between January 8 and 20, 2020, the parties
    exchanged written offers relating to the purchase of the appellants hotel.
[1]

[5]

The respondent first made an offer to purchase on
    January 8, 2020, which the appellant rejected. On January 10, 2020, the
    respondent made a revised offer; it made changes to its first offer and
    initialled them. On January 16, 2020, the appellant made a counteroffer; it made
    changes to the respondents revised offer and initialled those changes. On
    January 20, 2020, the respondent made a further revised offer, making certain
    changes to the terms proposed in the appellants January 16 counteroffer and
    initialling those changes.

[6]

On January 20, 2020, the appellant initialled
    the changes in the respondents further revised offer, except for the change to
    one term relating to the septic system.

[7]

The appellant argues that because it did not
    initial one of the respondents changes in the January 20, 2020 further revised
    offer, it did not accept all of the terms of that offer. It submits that the
    parties course of conduct indicates that changes were accepted by initialling.
    Accordingly, it submits that the application judge erred in finding that a
    binding agreement  namely the APS  had been reached on January 20, 2020 by
    the acceptance of the respondents further revised offer.

[8]

We disagree, and did not call on the respondent to
    address this issue in oral argument.

[9]

Although on January 20, 2020, the appellant did
    not initial one of the changes in the respondents further revised offer, the
    appellant did sign a Confirmation of Acceptance contained in it which stated:
    Notwithstanding anything contained herein to the contrary, I confirm this
    Agreement with all changes both typed and written was finally accepted by all
    parties at 2:50 p.m. this 20th day of January, 2020.

[10]

The application judge concluded that the appellant
    accepted the terms in the APS in their entirety. In our view, that finding was
    open to him.

[11]

Acceptance is constituted by conduct of the
    recipient that a reasonable person, in the position of the offeror, would
    consider constituted an acceptance:

Owners, Strata Plan LMS 3905 v.
    Crystal Square Parking Corp.
, 2020 SCC 29, 450 D.L.R. (4th) 105, at
    para. 33.

[12]

The Confirmation of Acceptance unequivocally communicated
    that all of the terms in the further revised offer presented on January 20,
    2020 were accepted, thus forming the APS.

[13]

Moreover, both parties and their agents acted
    on the basis that a binding APS had been reached on January 20, 2020. For
    example, on June 16, 2020, the parties executed an amendment, which stated: Per
    Agreement of Purchase and Sale mutually executed and accepted on January 20,
    2020. The position that no agreement had been reached on January 20, 2020 was
    not taken by the appellant until after there was a failure to close on February
    3, 2021 and litigation had ensued.

[14]

We therefore reject this ground of appeal.

(ii)

The Implied Term Issue

[15]

The APS provided that the respondent would pay a
    purchase price of $1,375,000. As part of the purchase price, the appellant
    agreed to take back a second mortgage in the amount of $500,000. The APS
    provided:

The Seller agrees to take back a 2nd
    Charge/Mortgage in the amount of Five Hundred Thousand Dollars ($500,000.00),
    bearing interest at the rate of 5.5% per annum, calculated semi-annually not in
    advance, repayable interest only, and run for a term of 2 years from the date
    of completion of this transaction.

[16]

The APS was silent on the amount of the first mortgage
    that could originally be placed on the property by the respondent ahead of the
    second mortgage to the appellant. It did contain terms about what would happen
    if that first mortgage were later replaced during the term of the second
    mortgage:

This Charge/Mortgage [i.e. the second mortgage
    to be taken back by the appellant] shall contain a clause permitting the removal
    or replacement of the existing first Charge/Mortgage at any time, provided that
    any increase in the principal amount of the new first Charge/Mortgage over the
    amount of principal owning under the first Charge/Mortgage at the time of
    renewal or replacement shall be applied in reduction of the principal amount of
    this Charge/Mortgage; and the Chargee/Mortgagee hereunder shall execute and
    deliver to the Chargor/Mortgagor such postponement agreement, Charge/Mortgage
    Statement, or other documents as the new first Chargee/Mortgagee may reasonably
    require, forthwith upon request.

[17]

When the respondent tendered on February 3,
    2021, it indicated that it proposed to place a first mortgage on the property of
    $1,000,000. The appellant argues that this constituted a breach of an implied
    term of the APS, the implied term being that the combined amount of the first and
    second mortgages could not exceed the purchase price as that would leave the
    second mortgage in part unsecured. In other words, there was an implied term
    that the first mortgage could not exceed $875,000.

[18]

The application judge refused to find such an
    implied term. As the Supreme Court affirmed in
M.J.B. Enterprises Ltd. v.
    Defence Construction (1951) Ltd.
, [1999] 1 S.C.R. 619, at para. 27, courts
    may imply terms in a contract:

(1) based on custom or usage; (2) as the legal
    incidents of a particular class or kind of contract; or (3) based on the
    presumed intention of the parties where the implied term must be necessary to
    give business efficacy to a contract or as otherwise meeting the officious
    bystander test as a term which the parties would say, if questioned, that they
    had obviously assumed.

The application judge considered the
    evidence led by each party as to whether there was a regular custom in mortgage
    and sale transactions to support such an implication. He concluded that this
    was not a case where the term could be implied based on custom or usage, nor to
    give business efficacy to the APS, nor based on the officious bystander test.
    Moreover, he noted that the APS contained an entire agreement clause limiting
    the agreement to the terms expressed in it.

[19]

We see no basis to interfere with the
    application judges conclusion. It was open to him to find on the evidence that
    no custom or usage supporting the implication of such a term had been
    established, and that no other basis for implying such a term existed.

[20]

The narrow circumstances under which terms may
    be implied based on business efficacy or the officious bystander test are
    concerned with the presumed intentions of the actual parties. They are not an invitation
    for a court to revise an agreement to make it accord with what reasonable
    parties might have done:

M.J.B. Enterprises
, at para. 29. Although
    it may have been wise for the appellant to have sought such a term before
    agreeing to the APS, it did not do so, despite having been professionally
    advised. The APS does not lack business efficacy without such a term, nor is it
    obvious that the respondent, if asked by the officious bystander, would have answered
    that such a term was included. The parties express terms indicate a contrary
    answer. The parties included specific provisions about the second mortgage and
    its relationship to the first without including the limit the appellant says
    should now be implied.

[21]

Nor do we see any error in the application judge
    having referred to the entire agreement clause as a factor in deciding whether the
    implied term contended for here accords with the presumed intentions of the
    parties, who stated that their entire agreement was to be found in the express
    terms of the APS:
Perkins v. Sheikhtavi
, 2019 ONCA 925, 16 R.P.R. (6th)
    42, at para. 22.

[22]

We therefore reject this ground of appeal.

(iii)

The Deficiencies Issue

[23]

The application judge dealt with three main categories
    of deficiencies and held that each was the responsibility of the appellant
    under the APS.

[24]

The first category was a foundation wall below
    the kitchen that was in a state of disrepair. The application judge found this
    to be covered by para. 5(f) of the APS, which provided:

To the best of the knowledge, information and
    belief of the Seller, all structural components of the Buildings and shoreline
    elements (Seawall, docks, etc) including any renovations/ additions/ improvements,
    are sound and in good and substantial repair, and meet all appropriate
    technical and safety codes;

[25]

The appellant does not contest that the wall was
    in a state of disrepair, and that this was known to the appellant. It argues
    that para. 5(f) only applies to matters within its knowledge, information and
    belief, and that this requires the appellant to have known, believed or been
    informed not only of the disrepair, but also that the wall was structural. The
    appellant submits that its principal gave evidence that it was not so aware,
    and that the application judge thus erred in finding that para. 5(f)
    applied.

[26]

We disagree.

[27]

The application judge described the wall as a foundation
    wall. He concluded, after reviewing photographs that the collapsed wall is
    structural. Implicit in the application judges approach is that whether the
    wall was structural is an objective issue  the knowledge/belief/information limit
    in para. 5(f) pertains to the walls state of repair. That interpretation is free
    of any extricable error, is reasonable, and is entitled to deference. The
    application judge was entitled to find that the wall was structural, based on its
    location and the photographic evidence. Given the appellants knowledge that the
    wall was in a state of disrepair, the application judge was therefore entitled
    to find that para. 5(f) of the APS made it the appellants responsibility.

[28]

The second category of deficiency related to the
    dining room fire separation, the kitchen exhaust, and the fire suppression
    system in the kitchen.

[29]

The application judge held that the appellant
    was responsible for each of these items under para. 5(h) of the APS, which provides:

The Seller has not received written notice of
    any work orders, deficiency notices or other similar notices from any
    municipality, public authority, or board of fire insurance underwriters, or
    from any tenant, or anyone else advising of any breach of any by-law, code
    regulation or standard or suggestion that any repair is necessary to the
    Properties or any part thereof (except as disclosed in writing to the Buyer
    within the Sellers Deliveries package and anything else prior to the end of the
    Buyers Inspection Period). The Seller agrees to remedy such items which
    currently exist or which may arise on or before the Close Date at the Sellers
    sole expense; The buyer acknowledges there is a work order on the ventilation
    and fire suppression
[2]
system on the kitchen commercial stove issued by the Rideau Lakes Township.

[30]

More specifically, the application judge found
    that para. 5(h) applied because it stated that the appellant was aware of a
    work order that required each of these deficiencies to be corrected.

[31]

In our view, although the application judges
    interpretation of the APS must be reviewed on a deferential standard, he made
    palpable and overriding errors in forming his interpretation of para. 5(h) as
    it pertains to this category of deficiency, justifying appellate intervention.

[32]

First, the application judge appears to have
    read para. 5(h) as though it referred to a specific work order that addressed
    the dining room fire separation concern. However, the work order specifically
    referenced in the last sentence of para. 5(h) refers to the ventilation and
    fire suppression system, not to the dining room separation issue. The
    application judge did not identify any other basis upon which remedying this
    deficiency would be the appellants responsibility under the APS. Second, the
    application judge appears to have read the paragraph as saying that the
    appellant was aware of the work order referred to in its last sentence, but not
    to say that the respondent was aware of the order, which is what the last
    sentence expressly acknowledges.

[33]

The interpretive question raised by the
    paragraph is who bears responsibility for this disclosed and acknowledged work
    order. The application judge did not address that question.

[34]

Paragraph 5(h) begins by stating the appellant
    has not received notice of work orders, except those disclosed to the
    respondent. It then refers to the appellants obligation to remedy such
    items. And it contains the respondents express acknowledgment that it has
    been advised of the work order mentioned in the last sentence. To read the
    paragraph as the respondent suggests, that the appellants obligation to remedy
    such items refers to items required under any work order  whether
    undisclosed or disclosed and acknowledged in the paragraph itself  does not
    accord with the interpretive principle that all the words of the agreement must
    be given meaning. This reading would give no effect to the respondents
    acknowledgement of its awareness of the specific work order. In our view, the
    appellants obligation to remedy under para. 5(h) does not extend to the
    work order that the respondent acknowledged had been disclosed to it. The
    application judge erred in so concluding.

[35]

The final category of deficiency relates to work
    to be done on the septic system under a Directors Order made by the Ministry
    of the Environment, Conservation and Parks on September 23, 2019. That Order
    virtually froze all sewage works at the hotels site and would have forced its
    closure until the system was brought into compliance with s. 53 of the
Ontario
    Water Resources Act
, R.S.O. 1990, c. O.40. The Directors Order also
    required that the appellant register a Certificate of Requirement on title to
    alert any potential purchaser to the non-compliance issues. Despite receiving
    the Directors Order in September 2019, the appellant did not register the
    Certificate of Requirement until February 25, 2020, after the parties had
    executed the APS, and never provided a copy of it to the respondent.

[36]

The application judge found that, on these facts,
    para. 5(h) applied to make this deficiency the appellants responsibility. We
    see no error in that conclusion.

Conclusion

[37]

We allow the appeal in part, and vary the
    decision of the application judge to delete the requirement that the appellant
    is responsible for remedying deficiencies in the dining room fire separation
    and in the kitchen exhaust and fire suppression system under the work order
    acknowledged by the respondent in para. 5(h) of the APS, as noted above. The
    appeal is otherwise dismissed. Due to the limited nature of the variation of
    the application judges decision, we would not change the holdback requirement
    he imposed since only the actual repairs for which the appellant is responsible
    will be charged against it.

[38]

The respondent requested costs of the appeal if
    completely successful in the sum of $11,593. The respondent enjoyed the greater
    measure of, but not complete, success on the appeal. Costs of the appeal shall
    be to the respondent in the sum of $7,500, inclusive of disbursements and applicable
    taxes.

Janet
    Simmons J.A.

Harvison
    Young J.A.

B.
    Zarnett J.A.

[1]
The buyer in the offers was Jeff Day & Core Lee or Assignee. On
    October 15, 2020, the APS was assigned to the respondent, and notice of the assignment
    was subsequently given to the appellant. For ease of reference, we refer to the
    respondent throughout, as each offer and the executed APS provided that upon
    assignment, the Assignee shall be deemed to be the party hereinbefore originally
    named as the Buyer.

[2]
This paragraph comprises typed text and handwritten additions. The
paragraph
    has been reproduced above to reflect the way both parties interpret the
    handwriting.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gilmour, 2022 ONCA 203

DATE: 20220309

DOCKET: C69634

Rouleau, Huscroft and Trotter
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Katrina Mae Gilmour

Appellant

Chris Rudnicki, for the appellant

Nicole Rivers, for the respondent

Heard and released orally:
March 7, 2022 by video conference

On appeal from the sentence imposed on June
9, 2021 by Justice John M. Johnston of the Superior Court of Justice, sitting
with a jury.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal her sentence for fraud. Her appeal
from conviction is proceeding as a solicitor appeal.

[2]

The appellant submits that the trial judge erred in principle by relying
on her lack of remorse as an aggravating factor. We see no such error.

[3]

The appellant has proffered fresh evidence concerning the health of her
four-year-old son, who underwent major surgery in January. He requires ongoing
care and the appellants partner is unable to act as primary caregiver. The
child is currently in the care of the appellants in-laws.

[4]

The appellant is entitled to statutory release on April 10, 2022.
Although we are satisfied that the sentence imposed was fit, in the unusual
circumstances of this case we would admit the fresh evidence and reduce the
carceral portion of the sentence to time served.

[5]

Leave to appeal is granted and the appeal is allowed. The
three-year probation order remains in place along with all of the additional
orders.

Paul
Rouleau J.A.

Grant
Huscroft J.A.

Gary
Trotter J.A.