COURT OF APPEAL FOR ONTARIO

CITATION: Perlmutter v. Smith, 2020 ONCA 570

DATE: 20200911

DOCKET:
C68404

Lauwers, Brown and Nordheimer
    JJ.A.

BETWEEN

Isaac (Ike) Perlmutter and
    Laura Perlmutter

Applicants (Respondents)

and

David Smith

Respondent (Appellant)

AND BETWEEN

Harold Peerenboom

Applicant (Respondent)

and

David Smith

Respondent (Appellant)

Jordan Goldblatt and Jordan Katz, for
    the appellant

Jerome Morse and David Trafford, for
    the respondent Harold Peerenboom

Winston Fogarty and
    Pavle Masic, for the respondents Isaac Perlmutter and Laura Perlmutter

Heard: August 24, 2020 by video conference

On appeal from the order of Justice
    Thomas Lederer of the Superior Court of Justice dated May 11, 2020, with
    reasons reported at 2020 ONSC 2679, and costs reasons reported at 2020 ONSC
    4722
.

BROWN J.A.:

I.        OVERVIEW

[1]

David Smith appeals the order of the application
    judge (the Order) giving effect to two Letters of Request, or requests for
    international judicial assistance, addressed to the Ontario Superior Court of
    Justice from Judge Cymonie Rowe of the Fifteenth Judicial Circuit of Florida in
    and for Palm Beach County (the Florida Court). Judge Rowe issued the Letters
    of Request at the instance of the respondents, Harold Peerenboom, Isaac
    Perlmutter, and Laura Perlmutter, in a proceeding commenced by Mr. Peerenboom in
    Florida against the Perlmutters.

[2]

Mr. Smith also seeks
    leave to appeal the application judges order that each party bear its own
    costs of the applications.

[3]

For the reasons set out
    below, I would dismiss the appeal and deny leave to appeal the costs order.

II.       THE FLORIDA PROCEEDING

[4]

The background to the
    Florida proceeding initiated by Mr. Peerenboom against Isaac Perlmutter and his
    wife, Laura Perlmutter, was described by the application judge at para. 6 of
    his reasons:

The two [principal] applicants, Harold
    Peerenboom, a Canadian, and Isaac Perlmutter, an American (with his wife Laura
    Perlmutter), own homes, in Florida, within the same private community. They
    disagreed over the management of the community, particularly concerning the
    operation of its tennis centre. Within a time frame coincident with this
    dispute Harold Peerenboom began receiving what was referred to throughout the
    hearing of these applications as hate mail.

From 2011 through 2016 Mr. Harold Peerenboom
    (Mr. Peerenboom) was the victim of a malicious and prolonged campaign of
    defamation and threats to harass, intimidate and extort him into leaving his
    Florida home. Throughout this period, repeated salvos of hundreds of anonymous
    hate letters falsely accusing him of loathsome crimes, including murder and
    sexual assault against a minor, were mailed throughout the United States and
    Canada to Mr. Peerenbooms family, friends, neighbours, business associates,
    employees and clients (the hate mail campaign).

[5]

Mr. Peerenboom thought
    the Perlmutters were orchestrating the hate-mail campaign. He commenced an
    action against them in the Florida courts (the Florida Main Action), as
    described by the application judge at paras. 12 and 13:

During October 2013, Harold Peerenboom
    commenced an action in the Circuit Court of the Fifteenth Judicial Circuit in
    and for Palm Beach County, Florida. Suffice it to say the Complaint (in our
    lexicon, the Statement of Claim) has attached to it, exhibits which reference
    many more mailings to a wide assortment of people making all manner of
    insulting and unseemly comments about the character and actions of Harold
    Peerenboom.

The action named as defendants Isaac
    Perlmutter and his wife Laura Perlmutter, and unknown-at-the-time
    co-conspirators and asserted causes of action for defamation and defamation
    per se, intentional infliction of emotional distress, tortious interference,
    civil conspiracy and injunctive relief in connection with their actions in
    perpetrating the vicious and baseless hate mail campaign directed at
    Peerenboom. On July 16, 2016, Isaac and Laura Perlmutter commenced a
    counterclaim against Harold Peerenboom and others for illegally, analysing
    and disclosing the Perlmutters genetic information in violation of Florida
    statutory and common law, in an effort to defame the Perlmutters by falsely
    implicating them in the Hate-Mail Campaign.

[6]

Mr. Smith is an Ontario
    resident. His involvement in the hate-mail campaign issues pleaded in the Florida
    Main Action came about in the following way, as described by the application
    judge at paras. 15, 16 and 18:

On January 21, 2016, the Detroit office of the
    Department of Homeland Security intercepted a package. Among other things, it
    contained anonymous letters that are described as threatening in that the
    sender stated that he would send letters to various jails and prisoners in
    those jails, stating that Mr. Peerenboom is a child molester, if the
    Peerenboom[s] did not leave their home on Palm Beach. On April 19, 2017, the
    Palm Beach Police Department notified the parties to the action that had been
    commenced by Harold Peerenboom against Isaac Perlmutter and his wife that the
    package had been intercepted.

The package included two letters one of which
    was addressed separately to two executives of Mandrake Management Consultants,
    identified as an executive search firm based in Toronto, and founded by Harold
    Peerenboom. The letter suggests that the two executives are just pawns of
    Harold Peerenboom and challenges them to convince him to sell his Florida home.
    It threatens that if they do not, the clients of the firm will be advised, by
    email and mail, of what a horrible person Harold Peerenboom is and suggests his
    involvement in sexual assault here in Florida, in Cuba and in the Far East
    and even up there in Canada. It alleges that Harold Peerenboom has caused
    distress to his own family and makes negative assertions about his wife and
    youngest son.

The sending of the package was initiated at a
    United Parcel Service (UPS) store in Toronto. The shipping label identified
    the sender as Thomas Thorney. He was interviewed by the police. Investigators
    came to realize that he was unaware of the matters being investigated.
A review of the surveillance tape maintained by UPS revealed
    that the person who had delivered the package under the name of Thomas Thorney
    was, in fact, his business partner, David Smith. In the Amended Notice of
    Application, it is alleged that David Smith is a former employee of Mandrake
    Management Consultants who was terminated after 15 years of service, for cause
.
    In the Florida proceedings commenced by Harold Peerenboom against Isaac Perlmutter
    and his wife, it is alleged that Isaac Perlmutter is complicit in the intention
    to deliver the letters found in the package. [Emphasis added.]

III.      THE ONTARIO APPLICATIONS TO ENFORCE
    LETTERS OF REQUEST

[7]

In August 2017, after
    discovering Mr. Smiths involvement, the Perlmutters and Mr. Peerenboom filed a
    joint motion in the Florida Court for a letter of request seeking the Superior
    Court of Ontarios assistance in obtaining evidence from Mr. Smith and Thomas
    Thorney. On September 1, 2017 the Florida Court issued its first Request for
    International Assistance to the Ontario Superior Court of Justice (the Initial
    Letter of Request).

[8]

Thomas Thorney complied
    with the Initial Letter of Request and was deposed in February 2018. Mr. Smith
    was not prepared to comply voluntarily with the Initial Letter of Request. He took
    the positions that it was overbroad and, since the motion for the Initial
    Letter of Request was granted on consent, the letter was not the product of
    substantive consideration by the Florida Court. The respondents then commenced
    an application in the Ontario Superior Court of Justice on February 1, 2018 to
    enforce the Initial Letter of Request.

[9]

The application judge
    described, at para. 22, the ensuing events affecting the proceeding to enforce
    the Initial Letter of Request:

The issue of the cooperation of David Smith
    with this first Letter of Request was determined by the actions of the
    plaintiff, Harold Peerenboom. During February 2018 he commenced another action
    in Florida; this one against David Smith, Thomas Thorney and unnamed
    co-conspirators for their actions in working with others, including the
    Perlmutters, in perpetrating the hate mail campaign. Counsel for the various
    parties consulted. They agreed. There was no purpose in continuing with the
    existing Letter of Request. Counsel for the two applicants, the Perlmutters and
    Harold Peerenboom canvassed Ontario law (whether the Letter of Request would be
    enforced) and determined that as constituted, with Harold Peerenboom as co-applicant,
    that application could not succeed. Counsel for David Smith expressed the view
    that the existing application was doomed to fail. In commencing the action
    against David Smith, Harold Peerenboom had opened another avenue through which
    to obtain the evidence of David Smith. It was otherwise obtainable. The
    applicants sought to adjourn that matter. Counsel for David Smith refused. It
    was withdrawn.

[10]

I shall refer to Mr.
    Peerenbooms Florida action against Mr. Smith as the Florida Smith Action.

[11]

The next steps in the
    respondents efforts to enforce letters of request were described by the
    application judge at para. 23:

On April 30, 2018, Isaac Perlmutter and his
    wife commenced this application in the Superior Court of Ontario in an effort
    to normalize the application by removing Harold Peerenboom as a co-applicant.
    This renewal of the application was opposed by David Smith. He signalled his
    intention to bring a motion to strike the attempted renewal as an abuse of
    process. The parties convened a scheduling conference before Madam Justice
    Dietrich. It took place on May 28, 2018. Rather than schedule the application
    and the motion to strike, Madam Justice Dietrich ordered that counsel for the
    moving party will seek a fresh letter of request on [an] expedited basis from
    the Florida Court following which, if he is successful in obtaining the letter,
    responding counsel will agree to a date for the application.

[12]

By the time of the May
    28, 2018 scheduling conference, the Florida Court had set the Florida Main Action
    down for trial in the fourth quarter of 2018.

[13]

The respondents
    returned to the Florida Court which, in August 2018, granted two Letters of
    Request: one in favour of the Perlmutters, and the other in favour of the
    Perlmutters and Mr. Peerenboom (the Second Letters of Request).

[14]

Earlier, in May 2018,
    Mr. Smith had brought a motion in the Florida Court to dismiss the Florida
    Smith Action for lack of personal jurisdiction. His motion was dismissed in
    September 2019. Mr. Smith appealed. His appeal was dismissed in early 2020,
    before the parties had concluded their submissions before the application
    judge.

[15]

In May 2019, the Perlmutters obtained leave to
    intervene in the Florida Smith Action, which entitled them to discover Mr.
    Smith on the issue of personal jurisdiction.

[16]

The application judge
    heard the two applications to enforce the Second Letters of Request in March
    and April, 2020. He released his Order giving effect to the Second Letters of
    Request on May 11, 2020.

[17]

I shall describe
    aspects of the application judges Order and reasons in more detail when
    considering the various grounds of appeal advanced by Mr. Smith. At this point,
    I simply wish to note that the Order, broadly speaking, does three things: (i) it
    gives effect to the Second Letters of Request; (ii) it provides some directions
    regarding the implementation of the Second Letters of Request, including the
    scope of documentary production; and (iii) it sets out the procedure for the
    disposition and review of electronic devices belonging to Mr. Smith that are in
    the possession of the Toronto Police Service. In his application to enforce the
    Second Letters of Request, Mr. Peerenboom sought relief in respect of those
    devices. The parties asked the application judge for an order reflecting their
    agreement on the procedure concerning the devices, which he made at para. 62 of
    his reasons.

[18]

On June 18, 2020 Mr.
    Smith filed his notice of appeal seeking to set aside the application judges Order
    in its entirety. The hearing of this appeal was expedited. The fresh evidence
    filed on consent discloses that (i) by order dated July 2, 2020 the Florida
    Court consolidated the Florida Main Action and the Florida Smith Action for
    discovery and trial, and (ii) by order dated July 14, 2020 the Court set the
    actions down for trial in January, 2021 and directed the parties to complete
    all discovery by the end of this year.

IV.     ISSUES ON APPEAL

[19]

Mr. Smith submits that,
    in enforcing the Second Letters of Request, the application judge made four
    errors warranting the intervention of this court. Specifically, he contends
    that the application judge erred in:

(i)

concluding that Mr. Smiths evidence was not
    otherwise obtainable;

(ii)

finding that the Second Letters of Request did
    not impose an undue burden on Mr. Smith;

(iii)

holding that the documents sought were identified with reasonable
    specificity; and

(iv)

failing to go behind the Second Letters of Request to identify
    defects in the process before the Florida Court that led to their issuance.

[20]

As well, Mr. Smith
    seeks leave to appeal the order of the application judge that each party was
    required to bear its own costs of the applications: 2020 ONSC 4722 (the Costs
    Reasons). Mr. Smith argues that he should be awarded his substantial indemnity
    costs of the applications.

V.      THE GOVERNING PRINCIPLES

[21]

The grounds of appeal
    Mr. Smith advances must be assessed in light of the general principles
    applicable when an Ontario court considers a request for assistance from a
    foreign tribunal pursuant to s. 60 of the
Evidence
    Act
, R.S.O. 1990, c. E.23
[1]
or s. 46 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5. As the application judge correctly noted, at para.
    4:
The fundamental principle
    to be applied in considering such a request is recognition of the comity of
    nations: that one sovereign nation voluntarily adopts or enforces the laws of
    another out of deference, mutuality, and respect. As a result, a foreign
    request is to be given full force and effect unless it is contrary to the
    public policy or otherwise prejudicial to the sovereignty or the citizens of
    the jurisdiction to which the request is directed:
Gulf
    Oil Corporation v. Gulf Canada Ltd. et al.
, [1980] 2 S.C.R. 39;
R.
    v. Zingre
, [1981] 2
    S.C.R. 392, at p. 401, quoted in
Presbyterian
    Church of Sudan v. Taylor,
(2006),
275 D.L.R. (4th)
    512 (Ont. C.A.), at para. 17.

[22]

The application judge
    was guided by the test repeated by this court in
Lantheus
    Medical Imaging Inc. v. Atomic Energy of Canada Ltd.
, 2013 ONCA 264, 115 O.R. (3d) 161, at
    para. 59, which requires a court to:

consider whether the request imposes any
    limitation or infringement on Canadian sovereignty and whether justice requires
    an order for the taking of commission evidence. The considerations encompassed
    by the phrase Canadian sovereignty  include [an] assessment of whether the
    request would give extra-territorial authority to foreign laws which violate
    relevant Canadian or provincial laws ; whether granting the request would
    infringe on recognized Canadian moral or legal principles ; and whether the
    request would impose an undue burden on, or do prejudice to, the individual
    whose evidence is requested.

[23]

The application judge
    properly observed, at para. 33, that
international comity dictates a liberal approach to requests for
    judicial assistance. As a result:

[T]he judge making the request is entitled to
    considerable deference in the Canadian application and  the court receiving
    the request for assistance does not sit in appeal from the decision of the
    requesting court. The Ontario Court of Appeal has held that orders originating
    from the United States should be given full faith and credit unless to do so
    would be contrary to the interests of justice or infringe on Canadian
    sovereignty.

[24]

At para. 36, the
    application judge correctly stated that to balance the need for comity against
    the possible infringement of Canadian sovereignty he was required to consider
    the factors set out in
Re Friction Division
    Products, Inc. and E.I. Du Pont de Nemours & Co. Inc. et al. (No. 2)
(1986)
, 56 O.R.
    (2d) 722 (H.C.), at p. 732, and
Fecht v. Deloitte
    & Touche
(1996), 28
    O.R. (3d) 188 (Gen. Div.), at p. 194, affd (1997) 32 O.R. (3d) 417 (C.A.),
    namely:

Before an order giving effect to letters
    rogatory will be made, the evidence (including the letters rogatory) must
    establish that:

(1) the evidence sought is relevant;

(2) the evidence sought is necessary for trial
    and will be adduced at trial, if admissible;

(3) the evidence is not otherwise obtainable;

(4) the order sought is not contrary to public
    policy;

(5) the documents sought are identified with
    reasonable specificity;

(6) the order sought is not unduly burdensome,
    having in mind what the relevant witnesses would be required to do, and
    produce, were the action to be tried here.

[25]

The
Friction Division
factors act as useful guideposts, not rigid pre-conditions, to the
    exercise of a judges discretion:
Lantheus
, at paras. 61 and 69. Of course,
an Ontario court must decline a foreign courts request if enforcing
    it would be contrary to public policy or inconsistent with the laws of this
    province:
Treat America Ltd. V. Nestlé Canada Inc.
,
2011 ONCA 560
, 340 D.L.R. (4th) 707, at para. 12.

[26]

The decision to grant
    or refuse a foreign request is a matter of judicial discretion, to which this
    court must give deference in the absence of a demonstrated error in principle
    by the court below:
Presbyterian Church
, at paras. 19 and 30.

VI.     FIRST ISSUE: DID THE APPLICATION
    JUDGE ERR IN CONCLUDING THAT MR. SMITHS EVIDENCE WAS NOT OTHERWISE OBTAINABLE?

A.

T
he issue stated

[27]

The application judge
    had no trouble in finding that David Smith has relevant evidence to offer: at
    para. 46. Mr. Smith does not challenge that finding; his challenge to the Order
    lies elsewhere. First, Mr. Smith submits that the application judge erred in
    concluding that the evidence sought through the Second Letters of Request was not
    otherwise obtainable. Mr. Smith contends that the application judge made two
    main errors in this regard:

(i)

before he rendered his decision, the parties had
    informed the application judge that Mr. Smiths jurisdictional appeal in the
    Florida Smith Action had been turned down. Yet, the application judge failed to
    consider that, as a result, Mr. Smiths evidence had become compellable by the
    respondents in the Florida proceedings; and

(ii)

he failed to acknowledge that many of the
    documents sought through the Second Letters of Request were otherwise
    obtainable by other measures, including directly from the parties themselves.

B.

Analysis

The effect of the dismissal of Mr. Smiths
    jurisdictional challenge

[28]

In his reasons, the
    application judge acknowledged counsel had informed him that Mr. Smiths appeal
    of the jurisdictional decision in the Florida Smith Action had been dismissed.
    However, the application judge discounted the significance of that dismissal,
    stating, at para. 31:

As it is, since the commencement of the
    hearing in this Court but before the submissions were complete, counsel advised
    that the Court in Florida has dismissed the appeal. In the circumstances there
    is no reason to believe that David Smith will agree to attend and be deposed in
    Florida. Certainly, his counsel had opportunities to disabuse the Court of this
    concern and did not do so. The second action, the one commenced by Harold
    Peerenboom against David Smith, does not stand as an alternative means of
    obtaining his evidence.

[29]

The application judges explanation for that
    conclusion is found in two places in his reasons. Earlier in para. 31, the
    application judge found:

What is apparent from the bringing of the [jurisdictional]
    motion and the subsequent appeal is that David Smith is [loath] to appear in
    the United States to give that deposition. There is nothing in the record that
    indicates a willingness to attend. He has been acting in a manner consistent
    with an intention to avoid it. This concern was raised during the submissions
    made by counsel. What would happen if the appeal was turned down and the action
    against David Smith left to proceed? The prospect of a default judgment was
    raised, either by counsel for David Smith or without his objection.

[30]

The application judge
    returned to the point at para. 46, stating:

David Smith has by his actions, motions and
    appeals made it clear that he is unwilling to respond to the procedures of the
    Florida Court.

[31]

I see no palpable and
    overriding error in the application judges finding that Mr. Smith was loath to
    appear in the United States to be deposed. That finding was reasonable based on
    the record of Mr. Smith
s conduct, including his
    conduct since the issuance of the Second Letters of Request.
Although Mr. Smith had moved to challenge
    the jurisdiction of the Florida Court and had been deposed on that motion, his jurisdictional
    motion was not construed as an attornment to the Florida Court and his
    deposition was limited to issues regarding the personal jurisdiction of the
    Florida Court. At the time the application judge rendered his decision, Mr.
    Smith had not voluntarily submitted to discovery on the merits of the Florida
    proceedings and his jurisdictional challenge had prevented the respondents from
    compelling his discovery in the Florida actions. Accordingly, on the record as
    it stood when he rendered his decision and based on Mr. Smiths conduct to that
    point, it was open to the application judge to find as he did: that Mr. Smith
    was
[loath] to appear in the
    United States to give [a] deposition and
by his
    actions had made it clear that he is unwilling to respond to the procedures of
    the Florida Court.

[32]

Mr. Smith argues the
    application judge erred by failing to consider that his evidence was
    compellable in the Florida actions. Mr. Smith did not file any evidence before
    the motion judge explaining how, under Florida law, a court could compel a
    non-resident party like Mr. Smith to appear and give evidence.

[33]

New information not
    before the application judge was placed before this court on appeal. First, in response
    to a question from the court, Mr. Smiths counsel advised that Mr. Smith had
    filed an answer or defence in the Florida Smith Action.

[34]

Second, Mr. Smith filed
    a brief of fresh evidence containing two pieces of correspondence between
    counsel. There appears to be no dispute that Mr. Peerenbooms Florida counsel
    served notices of examination on Mr. Smith for depositions this past June and
    August, which were cancelled by respondents counsel for a variety of reasons,
    including counsels health. A further notice has been sent for an October 6,
    2020 deposition of Mr. Smith.

[35]

Finally, Mr. Peerenboom
    also filed fresh evidence consisting of two pieces of correspondence between
    counsel. In an email dated April 7, 2020 Mr. Smiths Florida counsel imposed
    several pre-conditions on Mr. Smiths attendance at a deposition. The main
    pre-condition was that Mr. Smith would not appear to be deposed unless and until
    the dangers and legal restrictions associated with coronavirus have been fully
    lifted by Canadian and American authorities. Other conditions required that
    Mr. Peerenboom dismiss his Canadian lawsuits against Mr. Smith
[2]
and limit questioning in the
    Florida action to areas of inquiry not covered in his deposition for the
    jurisdictional challenge motion. An August 19, 2020 email from Mr. Perlmutters
    Ontario counsel indicated that some of the cancellations of the previously
    noticed deposition of Mr. Smith resulted from the pre-conditions Mr. Smith had
    placed on his examination.
[3]

[36]

Although this new
    information provides further details about the litigation, in my view it does
    not undermine the conclusion reached by the application judge that Mr. Smiths
    evidence was not otherwise obtainable. Mr. Smith remains resident in Ontario
    and counsels correspondence in the fresh evidence sheds no definitive light
    on whether Mr. Smith will appear for deposition in the Florida proceedings. Nor
    has Mr. Smith filed any evidence to explain how a Florida court can compel a
    party who is an Ontario resident to give evidence in a Florida action. A
    failure to attend for deposition might result in the striking out of any answer
    filed by Mr. Smith, but it would not result in the securing of his evidence.

The availability of the information from
    other sources

[37]

Mr. Smith argues that
    the application judge erred in holding that his evidence was not otherwise
    obtainable because many of the documents sought through the Second Letters of
    Request are obtainable by other measures, including directly from the parties
    themselves.

[38]

The application judge explicitly addressed this
    issue at para. 46 of his reasons, stating:

The evidence being sought from David Smith
    extends beyond his involvement in the sending of the package and the material
    it contained. That evidence indicates the possibility of his involvement in the
    alleged hate mail campaign. How far does that involvement reach? As will become
    apparent, the Letters of Request ask for any documents and communication
    between David Smith and a large number of other people including the
    Perlmutters and Harold Peerenboom. His counsel objects. Whatever communication
    there is between his client and the parties to the action within which the
    Letters of Request were issued, they would already have. Delivering hate mail,
    being part of a campaign to discredit anyone by spreading misinformation about
    another person (in this case the allegations include child molestation and
    murder) is a serious wrong. That is why it is a crime. It does not just affect
    those who are involved, it colours our society because it reflects on its
    values. The alleged involvement of David Smith in the sending of the material
    through UPS connects him to such activity. In this case, the involvement of
    David Smith is tied to the allegation that he conspired with others in the
    furtherance of this campaign. Hate mail and conspiracy are not, generally made
    accessible by those involved. These activities are not carried out where they
    are easily observed. The wide inquiry sought by the Florida Court through the
    Letters of Request makes it problematic to send the parties (Harold Peerenboom
    and the Perlmutters) to inquire of the array of people who may have received
    the hate mail if they have, and if the answer is yes, what communication of
    this kind they received, and then to determine what, if any of it involved
    David Smith. Harold Peerenboom may not be able to discern where the material
    came from, who was involved in preparing it and who was responsible for it
    being delivered. The nature of the Letters of Request makes clear the intention
    of the Court in Florida to shed light on the full breadth of the allegations.
    To fail to enforce them on the basis that any of this information was otherwise
    available would undermine that purpose. The information sought through these
    Letters of Request is not otherwise obtainable.

[39]

The application judges
    analysis is sound. It is anchored in the scope of the dispute as set out in the
    Florida proceedings and the reality of the difficulties in establishing causes
    of action based on conspiracy and a wide-spread hate campaign. It also reflects
    what this court stated in
Lantheus
, at para. 64: that evidence is not
    otherwise obtainable when evidence of the same value as that sought from the
    person to be examined cannot be otherwise obtained. Accordingly, I see no
    reversible error.

[40]

For these reasons, I am
    not persuaded by this ground of appeal.

VII.    SECOND ISSUE: DID THE APPLICATION
    JUDGE ERR IN CONCLUDING THAT THE SECOND LETTERS OF REQUEST DID NOT IMPOSE AN
    UNDUE BURDEN ON MR. SMITH?

A.      The issue stated

[41]

Mr. Smith submits the
    application judge erred by not meaningfully addressing the burden the Second Letters
    of Request would place on him. Since his jurisdictional appeal had been
    dismissed, Mr. Smith argues that he must now submit to two rounds of pre-trial
    discovery through two different procedures: first as a party in the Florida
    proceedings; then, pursuant to the Second Letters of Request.

B.      Analysis

[42]

I see no merit in this
    submission. The application judge concluded that Mr. Smiths evidence in
    respect of the issues in the Florida Main Action was not otherwise obtainable
    because his

actions, motions
    and appeals made it clear that he is unwilling to respond to the procedures of
    the Florida Court: at para. 46. As previously stated,
I
see no palpable and overriding error in
    that conclusion and the fresh evidence sheds no definitive light on whether
    Mr. Smith will appear for deposition in the Florida action.
[4]

VIII.   THIRD ISSUE: DID THE APPLICATION
    JUDGE ERR IN CONCLUDING THAT THE SECOND LETTERS OF REQUEST IDENTIFIED THE
    DOCUMENTS WITH REASONABLE SPECIFICITY?

A.      The issue stated

[43]

Friction Division
requires a court to consider whether the
documents sought by a letter of request are
    identified with reasonable specificity. Mr. Smith submits the application judge
    made two errors with respect to this factor:

(i)

failing to give appropriate weight to the facial
    overbreadth of the Second Letters of Request, specifically the lack of any
    temporal limitation on the documents and their requirement to produce a
    multitude of clearly irrelevant documents;
and

(ii)

engaging in a limiting process that reframed and reduced the scope
    of documentary production set out in the Second Letters of Request, a power
    that Mr. Smith contends the application judge did not possess.

B.      Analysis

The alleged overbreadth of the Second Letters
    of Request

[44]

Mr. Smith contends the
    Second Letters of Request were flawed on their face. He says they were
    overbroad because they lacked any temporal limitation and required the
    production of irrelevant documents, such as those concerning Marvel
    Entertainment LLC, Disney, and several other corporations. This overbreadth,
    according to Mr. Smith, should have led the application judge to dismiss the
    applications to enforce.

[45]

I am not persuaded by
    this submission. The application judge squarely addressed Mr. Smiths complaint
    of overbreadth in his reasons. He stated that at first viewing, overbreadth
    appeared to be an issue. However, on further reflection, he concluded that it was
    not: at para. 51. As he explained at para. 56:

The evidence sought through the Letters of
    Request is in furtherance of the possibility, degree and nature of the
    involvement of David Smith in the hate mail campaign. The Letters of Request
    ask for the production of documents dealing with a myriad of connections and
    people whose only association with David Smith, if there is any relationship,
    would arise from his involvement in that campaign. This is the narrow range of
    documents to which the affidavit of Jared Lopez refers.
The overall context for the Letters of Request
    is the hate mail campaign. The Letters of Request both make clear that this is
    the substantive limitation that restricts the response being required of David
    Smith
. [Emphasis added.]

[46]

The application judge
    went on to note that, on their face, the Second Letters of Request limit the
    scope of production to documents relevant to the allegations concerning the
    hate-mail campaign as set out in the pleadings for the Florida Main Action.
[5]
This led the application judge
    to conclude, at para. 59:

With the limitation that the evidence that is
    sought through the Letters of Request is with respect to the hate mail campaign
    having been established, it is apparent that the documents sought are
    identified with reasonable specificity and that the order to be enforced is not
     unduly burdensome.

[47]

I see no error in that
    analysis. It is rooted firmly in the language of the Second Letters of Request,
    considered in light of the allegations contained in the pleadings in the
    Florida Main Action. Although Mr. Smith contends that documents concerning
    communications with certain companies, such as Marvel Entertainment LLC, Disney,
    and others, are irrelevant, the allegations in the Florida pleadings refer to
    those companies and explain the relevance of the production of such documents.
    On the face of the pleadings in the Florida Main Action, the evidence requested
    appears to be relevant to the issues in the Florida litigation:
Presbyterian Church
, at para. 29.

Exceeding the proper bounds of the power to
    give directions

[48]

Mr. Smith contends the
    revisions the application judge made to the scope of documentary production set
    out in the Second Letters of Request exceeded the scope of his power to give
    directions under s. 60(1) of the
Ontario Evidence
    Act
. According to Mr.
    Smith, the revisions indicate the application judge reached an entirely
    different conclusion than the Florida Court regarding which documents were
    relevant to the underlying litigation. Mr. Smith submits that it was not for
    the Application Judge to weigh in on this issue to this degree, and doing so
    was an error of law.

[49]

I am not persuaded by
    this submission. The application judge did not err at law nor was his exercise
    of discretion unreasonable in the circumstances.

[50]

As the jurisprudence of
    this court has made clear for many years, it is open to the Ontario court to
    narrow a request for international judicial assistance if the supporting
    material sustains only a more circumscribed request:
Fecht
(Ont. C.A.)
, at p. 419;
Presbyterian
    Church
, at para. 45. In
Presbyterian Church
this court observed that in related Alberta litigation the application
    judge had only given effect to a small number of the discrete topics described
    in the letter of request. The Alberta judge did so because, in his view, the
    materials did not demonstrate the information on the other topics was relevant
    or necessary for trial:
Presbyterian Church of
    Sudan v. Talisman Energy Inc.
, 2005 ABQB 920, [2006] A.W.L.D. 945, at paras. 51-69, cited in
Presbyterian Church
, at paras. 38-40. For Ontario cases where the court reduced the scope of
    the letter of request, see:
AstraZeneca LP v.
    Wolman
, 2009 CarswellOnt
    7787 (S.C.), at paras. 52, 54 and 59;
Pecarsky v.
    Lipton Wiseman Altbaum & Partners
, [1999] O.J. No. 2004 (S.C.), at para. 41.

[51]

Although in his reasons
    the application judge concluded it is apparent that the documents sought are
    identified with reasonable specificity and that the order to be enforced is not
     unduly burdensome, his Order did not simply give effect to the Second
    Letters of Request. Instead:

(i)

in para. 5 of the Order, the application judge stated
    that the documents to be produced and the examination to be conducted will be
    governed by two overarching requirements, namely that the productions and
    questions posed must be relevant to the issues in the Florida proceeding and
    the temporal scope of all documents is limited to the period between May 1,
    2011 and June 30, 2016;

(ii)

in para. 6 of the Order, the application judge
    ordered Mr. Smith to produce specific categories of documents, explaining this
    was [f]
or the purpose of providing guidance as to the
    understanding of what is and is not relevant but, at the same time, making it
    clear that this in no way limits the obligation of David Smith to produce any
    document and answer any question that falls within the parameters of the two
    Letters of Request; and

(iii)

in para. 7 of the Order, the application judge
    directed, [f]or the purpose of providing further guidance as to what is and is
    not relevant, that Mr. Smith is not required to disclose certain documents.

[52]

It may not have been
    necessary for the application judge to include paras. 5 and 6 in his Order,
    since those provisions simply re-phrase the categories of relevant documents
    set out in the Second Letters of Request. However, the application judge
    evidently thought that paras. 5 and 6 would assist the parties in carrying out
    the requirements of the Second Letters of Request. Consequently, I view those
    parts of his Order as falling within his power under s. 60(1) of the
Evidence Act
to give all such directions as to  all other matters connected [with the
    examination] as seem proper.

[53]

I also regard the application
    judges decision to narrow the scope of production ordered in para. 7 of his
    Order as falling well within the reasonable exercise of his power to give
    directions. This narrowing primarily seeks to confine production to those documents
    directly relevant to the issue of Mr. Smiths knowledge of, or participation in,
    the hate-mail campaign. One provision  Order para. 7(f)  does not reduce the
    scope of production expressly requested in the Second Letters of Request but
    appears designed to steer the parties away from a topic that, in the language
    of r. 25.11(b) of the Ontario
Rules of Civil
    Procedure
, would be
    considered scandalous, frivolous or vexatious and, therefore, irrelevant. In
    my view, it was reasonable and within the application judges authority to do
    so.

[54]

I would simply observe
    that when a judge narrows the scope of the requested production, the best
    practice is to explain in his or her reasons why the narrowing has been
    ordered. However, as outlined above, in the present case the explanation for
    the narrowing can be gleaned from a reading of the reasons as a whole.

[55]

Accordingly, I would
    not give effect to this ground of appeal.

IX.     FOURTH ISSUE: DID THE APPLICATION
    JUDGE ERR BY FAILING TO DECLINE RECOGNITION OF THE SECOND LETTERS OF REQUEST
    BECAUSE OF DEFECTS IN THE FLORIDA COURTS PROCESS?

A.      The issue stated

[56]

Mr. Smith contends that
    the Second Letters of Request were issued as a result of a flawed process in
    the Florida Court. He argues there were several deficiencies in that process,
    namely:

(i)

a letter of request was issued at the instance
    of Mr. Peerenboom although he did not file a motion to obtain one;

(ii)

Mr. Peerenboom misrepresented that the Ontario
    Court had found the institution of the Smith Action in Florida was a
    sufficient material change in circumstances to justify annulling the First
    Letter Rogatory, when no court in Ontario had made such a finding;

(iii)

two different Second Letters of Request were
    granted to the Perlmutters and Mr. Peerenboom, despite Judge Rowe directing both
    parties to agree on language at the hearing on August 28, 2018. Those
    differences are not merely superficial; they include different categories of
    information sought from Smith and different summaries on material facts
    supporting the request; and

(iv)

Mr. Peerenbooms Second Letter of Request
    provides that Mr. Smiths costs of compliance are to be borne equally by Mr.
    Peerenboom and the Perlmutters. There is no explanation or logical reason why
    the Perlmutters would bear any of those costs, when they sought to issue their
    own Letter of Request.

B.      Analysis

[57]

Mr. Smith bases this
    ground of appeal on language found in the jurisprudence to the effect that
    although an Ontario court does not sit in appeal of the decision of a foreign
    court, it is not bound to accept the language of the letters of request as
    the final say but is entitled to go behind letters rogatory to examine
    precisely what it is the foreign court is seeking to do and to give effect to
    them only if they satisfy the requirements of the law of this jurisdiction:
    see the cases cited in
Aker Biomarine AS v. KGK
    Synergize Inc.
, 2013 ONSC
    4897, [2013] O.J. No. 5048, at para. 26 and
AstraZeneca
, at para. 18. From this Mr. Smith crafts
    an argument that the application judge erred by not examining, in some detail,
    the process that led the Florida Court to issue the Second Letters of Request.

[58]

The language Mr. Smith
    relies on traces its origin to the decisions of Blair J. in
Fecht
, at p.
    195, and this court in
Presbyterian Church
, at para. 32. It usually refers to the
    duty of the Ontario court to satisfy itself that the evidence sought is
    relevant and not otherwise obtainable, not to conduct an inquiry into the
    minutiae of the process used by the foreign court to grant the letter of
    request.

[59]

In some circumstances,
    the process used by a foreign court may well shed light on the relevance of the
    evidence sought and whether it is not otherwise obtainable. The fairness of the
    process of the foreign court is generally considered in the
Friction Division
analysis under the public policy factor, which is based on the principle
    that a foreign request is given full force and effect unless it be contrary to
    the public policy of the jurisdiction to which the request is directed:
Zingre
, at p.
    401.

[60]

Letters of request
    frequently flow back and forth across the border between Canada and the United
    States of America. Such is the consequence of our highly integrated economies
    and easy cross-border movement. As accepted by this court in
Ontario Public Service Employees Union Pension Fund (Trustees of) v.
    Clark
(2006), 270 D.L.R.
    (4th) 429 (Ont. C.A.), at para. 22, an Ontario court should give full faith
    and credit to the orders and judgments of a U.S. court unless it is of the
    view that to do so would be contrary to the interests of justice or would
    infringe Canadian sovereignty.

[61]

Applying those
    principles, I see no merit in this ground of appeal for four reasons.

[62]

First, the application
    judge was alive to the issue and, in fact, went behind the Second Letters of
    Request to some extent in order to address Mr. Smiths complaints. In paras. 32
    and 35 of his reasons, the application judge examined at some length the
    process used by the Florida Court leading up to its issuance of the Second
    Letters of Request. He considered Mr. Smiths complaint that Mr. Peerenboom did
    not file a separate motion, yet the Florida Court ultimately issued two Letters
    of Request, as well as his submission that no affidavit evidence supported the
    request to the Florida Court. His reasons clearly disclose that he was not
    persuaded the process tainted the Second Letters of Request such that it would
    be contrary to the interests of justice to enforce them. The application judge
    stated, in part, at paras. 34 and 35:

In the case I am asked to decide, Judge
    Cymonie Rowe was concerned with the original form of the Letter of Request put
    to her. She asked that it be amended. It is apparent that she considered the
    substance of what she was being asked to do and the substance of the
    justification for that request (that is the concerns expressed on behalf of
    Harold Peerenboom). The form of the motion evolved, as motions do here and
    elsewhere. The response to her expressed concern was to put to her the two
    Letters of Request. There is no reason, nor would it be appropriate, for this
    Court to look behind the process adopted by the requesting Court.

This same analysis applies to a further
    objection made on behalf of David Smith. It was submitted that the decision to
    grant the Letters of Request was made without any evidence supporting the
    request  Counsel for the Perlmutters pointed out that the material supporting
    the application for the granting of the Letters of Request by the Court in
    Florida contains a reference to the source of every factual component of the
    request. This is evidence by another means. In considering the process utilized
    by the Florida Court the importance of comity, the deference, mutuality, and
    respect it calls for overrides the sort of technical concerns raised on behalf
    of David Smith.

[63]

Second, our
    jurisprudence recognizes that the procedural practices in the American state
    and federal district courts differ in some respects from those in Ontario. For
    example, some American courts issue letters of request in the absence of
    affidavit evidence:
Presbyterian Church,
at para. 11; and the scope of discovery in
    American civil proceedings generally is much broader than in Canada:
Aker Biomarine
,
    at para. 27. Yet, comity requires that inflexible rules are not applied to such
    procedural differences. Instead, a Canadian court must balance any possible
    infringement of Canadian sovereignty with the natural desire to assist the
    courts of a foreign land:
Zingre
, at p. 403.

[64]

Third, there is no evidence that the process
    which resulted in the issuance of the Second Letters of Request did not comply
    with the procedural rules of the issuing court.

[65]

Finally, the process
    that led to the issuance of the Second Letters of Request lacks any hallmarks
    of an unfair process. In advance of moving before the Florida Court in late
    August 2018, the respondents invited Mr. Smiths Ontario counsel to indicate
    which provisions in the Initial Letter of Request were overbroad. Mr. Smiths
    counsel declined to do so. However, Mr. Smiths Ontario counsel did request
    that certain facts be placed before the Florida Court for its consideration,
    which the respondents did. As well, the Perlmutters motion to the Florida
    Court to issue a further Letter of Request was made on notice to Mr. Smith.

[66]

In sum, I see nothing
    in the record to suggest the Second Letters of Request that issued from the
    process of the Florida Court would infringe on any recognized Canadian legal or
    moral principle:
France (Republic) v. De Havilland
    Aircraft of Canada Ltd.
(1991), 3 O.R. (3d) 705 (C.A.), at p. 719.

[67]

For these reasons, I would
    not give effect to this ground of appeal.

X.      CONCLUSION ON THE APPEAL

[68]

For the reasons set out
    above, I would dismiss the appeal from the Order.

XI.     LEAVE TO APPEAL THE COSTS ORDER

A.      The issue stated

[69]

By order dated August
    5, 2020 (the Costs Order), the application judge ordered that [e]ach party
    is required to bear its own costs of these Applications. Mr. Smith seeks leave
    to appeal the Costs Order even if he does not succeed on his appeal.

[70]

Mr. Smith submits that
    the discretionary Costs Order is tainted by two errors in principle or is
    plainly wrong:
Johnson v. Marzouca
, 2016 ONCA 298, 130 O.R. (3d) 795, at
    para. 13. First, the application judge tethered the costs determination to the
    outcome of the Florida proceedings, effectively awarding costs in the cause
    for a proceeding that was not before him. Second, the application judge erred
    by departing from the general principle that non-party respondents to
    applications to enforce letters of request are entitled to receive their costs
    on an elevated scale regardless of the outcome of the enforcement application.

B.      Analysis

[71]

I am not persuaded the
    application judge made any error in principle in making the Costs Order or that
    the order is plainly wrong. I would not grant leave to appeal.

[72]

First, it is clear on
    the face of the application judges reasons that he did not tether the Costs
    Order to the outcome of the Florida proceedings. Rather, he explained why the
    conduct of each party made it difficult for him to determine who was entitled
    to costs: Costs Reasons, at paras. 10-14. In his view, it was not possible to
    meaningfully decide the issue of costs without knowing the ultimate results of
    the two [Florida] actions: at para. 15. That did not lead him to order costs
    in the cause, as contended by Mr. Smith. On the contrary, his reasons, at
    para. 24, plainly disclose that he was
not
doing so:

The amounts related to activities in the Court
    in Florida will be assessed there, based on the law that applies. The
    differences that remain as a result of the work attributable to proceedings
    before this Court are not so great that anyone will be unduly prejudiced. Any
    suggestion that this should be left to be dealt with at the end, leaving this
    Court to unravel, understand and assess the result and impact of the Florida
    proceedings is neither appropriate nor practical.

[73]

In the result, he
    ordered that in these Ontario applications [t]here will be no order as to
    costs. Each party is to bear its own: at para. 25. The application judge did
    not exceed his jurisdiction in making such order; it was squarely confined to
    the applications before him.

[74]

Second, the case law
    discloses that on
unsuccessful
    applications
to enforce
    letters of request, courts have awarded the resisting respondent full indemnity
    costs, substantial indemnity costs, partial indemnity costs, or no costs: see
    the cases cited in
Oticon v. Gennum Corp.
, 2010 ONSC 1638, [2010] O.J. No. 1082, at
    para. 3. In
Scoular Co. v. Detlefsen
, 2016 ONSC 4001, 92 C.P.C. (7th) 197, at
    paras. 44 to 51 Spies J. reviewed the costs awards in cases where the applicant
successfully enforced
letters of request. In those cases, the
    awards ranged from an order of partial indemnity costs to the successful
    applicant in one case, to an award of full indemnity costs to the unsuccessful
    respondent in another. In her case, Spies J. granted the application to enforce
    but ordered no costs of the application: at para. 53.

[75]

The jurisprudence does
    not establish any bright line rule regarding the award of costs on successful
    applications to enforce letters of request. Consequently, the application judge
    did not err in principle in awarding no costs, nor was his Costs Order plainly
    wrong.

[76]

For those reasons, I
    would not grant Mr. Smith leave to appeal the Costs Order.

XII.    DISPOSITION

[77]

For the reasons set out
    above, I would dismiss the appeal and deny Mr. Smith leave to appeal the Costs
    Order.

[78]

If the parties are
    unable to agree on costs for this appeal, they may each serve and file written
    costs submissions, limited to three pages each, together with their bills of
    costs and any offers to settle, within ten (10) days of the release of these
    reasons.

Released: PL SEP 11 2020

David
    Brown J.A.

I
    agree. P. Lauwers J.A.

I
    agree. I.V.B. Nordheimer J.A.

[1]
Section 60(1) of the
Evidence Act
provides:

60 (1) Where it is made to appear to the Superior Court of Justice
    or a judge thereof, that a court or tribunal of competent jurisdiction in a
    foreign country has duly authorized, by commission, order or other process, for
    a purpose for which a letter of request could be issued under the rules of
    court, the obtaining of the testimony in or in relation to an action, suit or
    proceeding pending in or before such foreign court or tribunal, of a witness
    out of the jurisdiction thereof and within the jurisdiction of the court or
    judge so applied to, such court or judge may order the examination of such
    witness before the person appointed, and in the manner and form directed by the
    commission, order or other process, and may, by the same or by a subsequent
    order, command the attendance of a person named therein for the purpose of
    being examined, or the production of a writing or other document or thing
    mentioned in the order, and may give all such directions as to the time and
    place of the examination, and all other matters connected therewith as seem
    proper, and the order may be enforced, and any disobedience thereto punished,
    in like manner as in the case of an order made by the court or judge in an
    action pending in the court or before a judge of the court.

[2]
C
ompanies
    in which Mr. Peerenboom has an interest  Mandrake Management Consultants
    Corporation, Crestwood Preparatory College Inc. and Crestwood School  have
    commenced proceedings in Ontario against Mr. Smith. Mandrake Management
    Consultants Corporation, a company for which Mr. Smith had worked, has
    commenced two proceedings against Mr. Smith in Ontario: one that alleges the breach
    of minutes of settlement, and another that alleges misappropriation of
    confidential information. One Crestwood action alleges that defamatory
    statements made by Mr. Smith in the hate-mail campaign have caused economic
    harm to the school and interfered with its economic relations. Mr. Peerenboom
    also has commenced a defamation action against Mr. Smith for statements made in
    the hate-mail campaign. It appears that none of the actions have proceeded
    beyond the pleadings stage.

[3]
In
    response to a question from this court, Mr. Smiths counsel advised that Mr.
    Smith had waived the pre-conditions for his deposition. However, counsel for
    Mr. Peerenboom stated that such a waiver had never been communicated to the
    respondents.

[4]
If, as
    matters unfold, Mr. Smith submits to discovery in the Florida actions before
    any examination pursuant to the Second Letters of Request takes place and the
    respondents insist on proceeding with an examination under the Second Letters
    of Request, it is always open to Mr. Smith to move to stay the Order and
    request the appropriate costs order.

[5]

For example, at para. 57 of his reasons the
    application judge states:

The Letter of Request directed to the benefit
    of both Harold Peerenboom and Isaac Perlmutter (in company with his wife Laura
    Perlmutter) under the heading Assistance Required: Specific Evidence Sought by
    This Court notes:

This Court hereby ORDERS that the
    Requesting Parties are authorized to obtain information
that may be relevant
to the prosecution and defence of the claims and counterclaim set forth in
    this lawsuit, including the existence, description, nature, custody, condition
    and location of all documents or other tangible things pertaining to, and the
    identity and location of persons with knowledge of,
relevant information
    pertaining to the anonymous mailing campaign
.

This Court hereby ORDERS that, in
    connection with the foregoing, the Requesting Parties are hereby authorized to
    obtain the following documents and other information
that may be relevant
to
    the claims, counterclaims, and/or defence of same from the non party witness
    hereinafter identified:

[Emphasis in original].


COURT OF APPEAL FOR ONTARIO

CITATION: Perlmutter v. Smith, 2020 ONCA 611

DATE: 20200929

DOCKET: C68404

Lauwers,
    Brown and Nordheimer JJ.A.

BETWEEN

Isaac
    (Ike) Perlmutter and Laura Perlmutter

Applicants
    (Respondents)

and

David
    Smith

Respondent
    (Appellant)

AND BETWEEN

Harold
    Peerenboom

Applicant
    (Respondent)

and

David
    Smith

Respondent
    (Appellant)

Jordan Goldblatt and Jordan Katz, for
    the appellant

Jerome Morse and David Trafford, for the
    respondent Harold Peerenboom

Winston Fogarty and Pavle Masic, for the
    respondents Isaac Perlmutter and Laura Perlmutter

Heard: in writing

On appeal from the order of Justice
    Thomas R. Lederer of the Superior Court of Justice dated May 11, 2020, with
    reasons reported at 2020 ONSC 2679, and costs reasons reported at 2020 ONSC
    4722.

COSTS ENDORSEMENT

[1]

On September 11, 2020, we released our decision
    in which we dismissed Mr. Smiths appeal and denied Mr. Smith leave to appeal a
    costs order.  We invited the parties to make written submissions on the costs
    of the appeal.  We have now received and reviewed those submissions.

[2]

The appellant says that all parties should bear
    their own costs of the appeal. He says that this result would be consistent
    with the decision of the application judge who ordered no costs with respect to
    the matters before him. The appellant also says that it is impractical and
    inappropriate to award costs in light of the ongoing litigation in Florida,
    where these issues will be resolved and costs can be sought.

[3]

The Perlmutter respondents seek costs of $10,000
    from the appellant and $5,000 from the respondent Peerenboom. The Perlmutter
    respondents say that the appellant should have to pay costs because he was
    entirely unsuccessful in his appeal. They say that the respondent Peerenboom
    should have to pay some costs because he unduly complicated the issues involved
    in the appeal. The Perlmutter respondents say that the amount that they seek
    for costs is reasonable in all of the circumstances.

[4]

The respondent Peerenboom says that he made a
    number of offers to settle the appeal, all of which were rejected. As a
    consequence, the respondent Peerenboom seeks substantial indemnity costs
    payable by Mr. Smith and the Perlmutters in the amount of $50,000. In the
    alternative, he seeks his partial indemnity costs of $33,500.

[5]

In our view, it is appropriate for all of the
    parties to bear their own costs. In reaching that conclusion we have taken into
    account a number of factors. One is that the application judge reached that
    same conclusion with respect to the matters that were before him. We agree with
    his observation, at para. 15 of his costs reasons:

In the circumstances of this case it is not
    possible to meaningfully decide the issue of costs without knowing the ultimate
    results of the two actions.

[6]

Another is that, as this court noted in its
    reasons at para. 75: The jurisprudence does not establish any bright line rule
    regarding the award of costs on successful applications to enforce letters of
    request.

[7]

Yet another is that offers to settle are
    generally not considered in deciding costs in this court. Rule 49 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 does not apply to appeals. That
    said, an offer to settle an appeal prior to argument may be taken into account
    when fixing costs but this power is exercised only on rare occasions:
Smith
    Estate v. Rotstein
, 2011 ONCA 833 at para. 16. This is not one of those
    rare occasions.

[8]

In the end result, we order that all parties shall
    bear their own costs of the appeal.

P. Lauwers
    J.A.
David Brown J.A.

I.V.B.
    Nordheimer J.A.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alisaleh, 2020 ONCA 597

DATE: 20200922

DOCKET: C68260

Fairburn
    A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Jawid Alisaleh

Appellant

Jawid Alisaleh, acting in person

Paul Alexander, appearing as duty
    counsel

Nicole Rivers, for the respondent

Heard: September 8, 2020 by video
    conference

On appeal from the
    conviction entered by Justice Breese Davies of the Superior Court of Justice,
    dated October 11, 2019, with reasons reported at 2019 ONSC 5859, and from the
    sentence imposed on March 6, 2020.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of sexual
    assault and received a sentence of six months less one day in custody followed
    by two years of probation. He appeals from conviction and sentence.

[2]

At trial, there was no dispute that the
    appellant touched the complainant in a sexual manner. The issue was whether he
    continued to do so after the complainant withdrew her consent. According to the
    complainant, on March 8, 2017, she went to the appellants apartment and
    engaged in consensual sexual activity including vaginal intercourse. However,
    she verbally withdrew her consent when the sex became rough and started to
    hurt. The appellant ignored her, continued to touch her in a sexual manner, and
    unsuccessfully tried to anally penetrate her.

[3]

The complainant ended the assault by pushing the
    appellant off of her and getting dressed. She left the apartment to find out
    the address of the building because the appellant refused to drive her home.
    She left without her belongings and the appellant locked her outside of his
    apartment. The complainant called a friend to pick her up and her friends
    mother came to get her. They attempted to try and retrieve her belongings,
    however, the appellant refused to open the door. At that time, the complainant
    did not disclose that she had been sexually assaulted.

[4]

The complainant called 911 and asked for police
    help in retrieving her belongings. She was told to wait for the arrival of a
    police officer. After waiting some time, she called 911 a second time and was
    told by the operator that because there was no life and death emergency there
    would be a delay. It was at this point that she disclosed that she had been
    sexually assaulted and falsely claimed it occurred just 10 minutes before the
    call. At trial, the complainant acknowledged that she lied to the operator
    about the timing of the assault because she believed that if she told the operator
    that the assault had just happened the police would respond quickly.

[5]

The appellant did not testify at trial. His
    position was that the complainant was neither credible nor reliable because her
    evidence suffered from several flaws, including that she acknowledged lying to
    the police to retrieve her belongings. The trial judge disagreed. She accepted
    the complainants testimony that there was no consent to sexual intercourse
    once it became rough and the complainant told him to stop.

[6]

With the assistance of duty counsel, the
    appellant raises three grounds of appeal in relation to his conviction.

[7]

First, that the trial judge erred by treating a
    lack of embellishment in the complainants allegations as enhancing her
    credibility.

[8]

Second, that the trial judge reversed the burden
    of proof by focusing on whether flaws in the complainants evidence were
    sufficient to cause her to reject that evidence, when she should have focused
    on whether the complainants evidence was sufficiently cogent to be accepted in
    the first place.

[9]

Third, that the trial judge erred in her
    credibility assessment by acknowledging the flaws and contradictions in the
    complainants evidence but excusing them based on a misapprehension of their
    relevance and by unreasonably finding that the complainant was credible because
    she was corroborated on a peripheral fact.

[10]

The second and third grounds of appeal can be
    dealt with briefly.

[11]

With respect to the argument that the trial
    judge reversed the burden of proof, we note that a trial judge is presumed to
    know the law and that, on more than one occasion in her very detailed and
    thorough reasons, the trial judge stated that the burden was on the Crown to
    prove the case beyond a reasonable doubt.
The trial
    judge identified that the only issue was whether the complainant consented
    which turned on an assessment of the complainants credibility and the
    reliability of her evidence. The trial judge then went on to deal specifically
    with each submission made by defence counsel about why the complainants credibility
    and reliability should be rejected. She did not reverse the burden of proof.

[12]

Additionally, we do not accept that the trial
    judge erred in her assessment of the flaws in the complainants evidence, or in
    her treatment of the corroborating evidence. Although troubled by some aspects
    of the complainants evidence, the trial judge set out detailed reasons why the
    complainants misleading statement to the police and the inconsistencies in her
    evidence did not cause her to reject the complainants evidence that she had
    withdrawn her consent.

[13]

Turning to the first ground of appeal, the Crown
    concedes that the trial judge erred in finding that the complainants
    credibility was enhanced because she did not appear to exaggerate her
    allegations against the appellant. However, the Crown argues that the curative
    proviso under s. 686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985, c.
    C-46 should apply.

[14]

At trial, the Crown argued in its closing
    submissions that the lack of embellishment supported the complainants
    credibility. Defence counsel objected to this submission and argued that the
    lack of embellishment had no bearing on the complainants credibility. As
    defence counsel put it, you dont get points for not exaggerating. Defence counsel
    expressly stated that their position was not that the complainant was so angry
    that she embellished her testimony. Rather, their case was that the complainant
    lied to the police on the spur of the moment to retrieve her belongings.

[15]

When addressing why she
    believed the complainant, the trial judge explained: [t]here are two important
    factors that I find enhance [the complainants] credibility.
One of those two important factors
    pertained to the view that the complainant had not embellished during her
    evidence. As the trial judge explained,
although every
    allegation of sexual assault is serious the allegations made by the complainant
    were relatively modest and that the complainant gave a measured description
    of what took place between them without apparent exaggeration.
The
trial judge also emphasized that the
    complainants description of the assault was understated.

[16]

To be clear, it is not an error to simply note
    that there is an absence of embellishment in the complainants testimony. This
    court has held that the presence of embellishment can be a basis to find the
    complainant incredible, and there is nothing wrong with noting the absence of
    something that could have diminished credibility. However, it is wrong to
    reason that because an allegation could have been worse, it is more likely to
    be true:
R. v. Kiss
, 2018 ONCA 184 at para. 52, citing
R. v. G.(G.)
(1997), 115 C.C.C. (3d) 1, at p. 10 (Ont. C.A.);
R. v. L.L.
, 2014 ONCA
    892, at para. 2;
R. v. G. (R.)
, 2008 ONCA 829, 243 O.A.C. 1, at para.
    20. Our colleague Paciocco J.A. put it this way in
Kiss
at para. 52:

On the other hand, in my view, there is
    nothing wrong with a trial judge noting that things that might have diminished
    credibility are absent.
As long as it is not being used as a makeweight in
    favour of credibility
, it is no more inappropriate to note that a witness
    has not embellished their evidence than it is to observe that there have been
    no material inconsistencies in a witness evidence, or that the evidence stood
    up to cross-examination. These are not factors that show credibility. They are,
    however, explanations for why a witness has not been found to be incredible.
    [Emphasis added.]

[17]

In this case, the trial judge was not simply
    noting that the complainants evidence did not suffer from a problem of
    exaggeration or embellishment that diminished its weight in response to a
    defence argument that the complainant had embellished her allegations. Rather, the
    lack of embellishment was specifically noted as an important factor used to
    enhance the complainants credibility. Therefore, we agree with the Crowns concession
    on this error.

[18]

Notwithstanding the error, the Crown requests
    that we apply the curative proviso to uphold the conviction. Although there is
    no hard and fast rule that excludes the curative proviso in cases turning upon
    credibility, caution should be exercised prior to its application if credibility
    is the key issue at trial:
R. v. Perkins
, 2016 ONCA 588 at para. 32. In
    our view, the proviso is inapplicable in this case.

[19]

The core issue at trial was the credibility of
    the complainant. While we acknowledge that the trial judge gave another reason
    for finding the complainant credible, the lack of embellishment was cited as
    one of two important reasons that enhanced the complainants credibility. We also
    note that the trial judge had some concerns about the complainants evidence,
    and we cannot say for certain that a conviction would have been inevitable had
    the judge not considered the lack of embellishment to be a positive factor
    going to the credibility of the complainant. As this court affirmed in
Perkins
,
    at para. 26, as tracing the effect of the error on the verdict is necessarily
    a somewhat speculative exercise, any doubt as to the impact of the error must
    be resolved against the Crown.

[20]

The conviction appeal is allowed and a new trial
    on the sexual assault charge is ordered. In light of our conclusion on the
    conviction appeal, we do not reach the sentence appeal.

Fairburn
    A.C.J.O.

J.C.
    MacPherson J.A.

S.
    Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bagherzadeh, 2020 ONCA 599

DATE: 20200921

DOCKET:
M51766
    (C67575)

Hourigan
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Nick Bagherzadeh

Applicant/Appellant

Alexander Ostroff, for the appellant

Kevin Rawluk, for the Crown

Heard: September 18, 2020

REASONS
    FOR DECISION

(a)

Introduction

[1]

On April 26, 2018, the appellant was convicted
    of second degree murder and aggravated assault. He was sentenced on June 26,
    2018 to life imprisonment with a 10 year parole ineligibility on the second
    degree murder conviction and received a concurrent sentence of three years
    incarceration on the aggravated assault conviction. The appellants bail was
    revoked on his conviction and he has been incarcerated since that time. He now brings
    this application for bail pending appeal.

[2]

The Crown opposes the
    application on the public interest criterion. For the reasons that follow, the
    application is dismissed.

(b)

Analysis

[3]

There are two
    components to the public interest criterion: public safety and public
    confidence in the administration of justice:
R. v. Oland
, 2017 SCC 17,
    at para. 23.  The focus of the argument was on the latter component.

[4]

In analyzing the public
    confidence component of the public interest criterion the court balances two

competing interests: reviewability and
    enforceability. Achieving this balance mandates a judicial assessment of, on
    the one hand, the need to review the conviction leading to imprisonment, and on
    the other, the need to respect the general rule of immediate enforceability

of

judgments:
Oland
, at

paras.

25-26. Rarely does the public interest
    component play a role, much less a central role, in the decision to grant or
    deny bail pending appeal:
Oland
, at para. 29.

[5]

The enforceability
    interest will often outweigh the reviewability interest when a person convicted
    of a very serious offence advances weak grounds of appeal:
Oland
, at
    para. 50. On

the

other

hand,

when

public

safety

or

flight

risk

concerns

are

negligible

and the

grounds

of

appeal

clearly

surpass the

not

frivolous

criterion,

the

reviewability

interest may favour release, even for
    murder or other serious offences:
Oland
, at para. 51.

[6]

The appellant submits
    that there is a strong reviewability interest in this case because he is not a
    threat to public safety, has a strong plan of release, and the merits of his
    appeal clearly

surpass

the

not

frivolous

criterion. The Crowns position is that the need for
    enforceability is paramount because of the serious nature of the offences and
    weak grounds of appeal.

[7]

It is common ground
    among the parties, and I agree, that the grounds of appeal asserted are not
    frivolous. However, in my view, the grounds do not clearly

surpass the

not

frivolous

criterion.

[8]

Two primary grounds of
    appeal are asserted. The first is that the trial judge erred in not instructing
    the jury on provocation. This is a challenging argument given that the
    appellants counsel expressly advised the court in the pre-charge conference
    that he did not believe there was a factual foundation for provocation and much
    of the appellants evidence was to the effect that during the incident that led
    to the charges he used measured force to defend a friend.

[9]

The second ground of
    appeal is that the trial judge erred in not declaring a mistrial and instead
    providing a correcting instruction. It is well established that a mistrial is a
    remedy of last resort and that appellate deference is owed to the discretionary
    decision of a trial judge about whether a mistrial order is appropriate.
    Moreover, the appellant has not identified any error in principle made by the
    trial judge in the exercise of her discretion.

[10]

The lengthy sentence
    imposed is also a significant factor. There is no chance that the appellant
    will serve a significant part of it prior to the appeal being heard.  I am also
    advised that the transcripts have been completed and thus there is no reason
    why this appeal cannot be heard in the next few months.

[11]

Balanced against the
    weak grounds of appeal, serious convictions and lengthy sentence, is the fact
    that the appellant is not a flight risk and is not a threat to public safety. I
    conclude that the balance favours the enforceability criterion and the
    appellant has not met his onus of establishing that detention is not necessary
    in the public interest.

(c)

Disposition

[12]

The application is
    dismissed.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brar, 2020 ONCA 578

DATE: 20200911

DOCKET: M51582
    (C64824)

Pepall J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent
    (Responding Party)

and

Sukhchain Brar

Appellant
    (Applicant)

Alexander
    Ostroff, for the applicant

Rebecca De
    Filippis, for the responding party

Heard: August 21,
    2020 by video conference

REASONS
    FOR DECISION

INTRODUCTION

[1]

On December 8, 2017, the applicant, Sukhchain Brar, was convicted of the
    first-degree murder of his wife. He was sentenced to life imprisonment without
    parole for 25 years. His application for Legal Aid to fund his appeal was
    refused. He now applies for an order under s. 684(1) of the
Criminal Code, R.S.C.
    1985, c. C-46
for the appointment of counsel.

APPLICABLE LEGAL PRINCIPLES

[2]

Under s. 684(1), the court may appoint counsel if, in its
    opinion, it appears both desirable in the interests of justice that the
    applicant should have legal assistance and the applicant does not have
    sufficient means to obtain that assistance. The section is to be interpreted in
    a manner that is consistent with s. 7 of the
Canadian Charter of Rights and
    Freedoms
. The order is exceptional, and the applicant bears the burden of
    proof:
R. v. Staples
, 2016 ONCA 362 at paras. 33, 40.

(a)

Interests of Justice

[3]

To succeed in establishing that the appointment of counsel is desirable
    in the interests of justice, an applicant must show that:

i)

the appeal is arguable; and

ii)

it is necessary that counsel be appointed having
    regard to: (a) whether the applicant is capable of effectively advancing the
    grounds of appeal without a lawyer; and (b) whether the court will be able to
    properly decide the appeal without the assistance of defence counsel.

(i)

Is the Appeal Arguable?

[4]

At his trial before a judge and jury, the applicant pled guilty
    to manslaughter but not guilty to first-degree murder. He testified that the
    deceased had erratically confronted and attacked him while they were on a truck
    trip to Arkansas. He said she grabbed him around the throat and refused to let
    go, and told him that he was not a man, that Jinder was a man, and that the
    J tattoo on her chest stood for Jinder, who she said was the father of their
    youngest child. The applicant struck the deceased with a mallet, but he
    testified that he did not know where or how many times. He then set fire to the
    truck. The deceaseds cause of death was a combination of blunt force injuries
    and smoke inhalation.

[5]

The defence argued at trial that the deceased provoked the applicant by
    choking him while disclosing her affair and saying that their child was a
    product of the affair.

[6]

The applicant proposes to advance various grounds of appeal. He submits
    that the trial judge erred in his charge to the jury on the indictable offence
    component of provocation and that, furthermore, the amended provocation
    provision in s. 232(2) of the
Criminal Code
is constitutionally invalid.

[7]

These do not appear to be strong arguments given that the jury found
    that the murder was planned and deliberate. Implicitly, the jury found that the
    applicant had formed an intention to kill before he and the deceased left on
    their trip. As the Crown observes, a planned and deliberate murder is the
    antithesis of a provoked one. As a result, even assuming that the trial judge
    erred as the applicant argues, the Crown may well successfully invoke the
    curative proviso. On this record, it is difficult to see how any mistake
    relating to provocation would have affected the verdict. I also note that the
    constitutional issue was not raised at trial, and it is not clear that this
    would be an appropriate case for this court to entertain the issue for the
    first time on appeal.

[8]

The applicant also proposes to argue that first-degree murder was an
    unreasonable verdict. However, I agree with the Crown that on the available
    record, this was a strong planning and deliberation case and the verdict
    appears to be one which a properly instructed jury, acting judicially, could
    reasonably have rendered. There was evidence of motive, namely, that the
    marriage was breaking up, the deceased was having an affair that the applicant
    knew about, and he may have been upset about the deceased moving to India.
    Further, he had made a threat, at a minimum, of reputational harm. There was
    also evidence capable of supporting an inference that the murder was planned,
    including that the applicant had arranged for the deceaseds will to designate him
    as her beneficiary shortly before their trip to Arkansas, and that a mallet and
    such significant quantities of gasoline were not usually in the truck.

[9]

Having said that, in my view, the applicant has an arguable case with
    respect to his other ground of appeal. He intends to submit that the trial judge
    erred in his after-the-fact conduct instructions. The trial judge did not have
    the benefit of this courts decision in
R. v. McGregor
, 2019 ONCA 307.
    Arguably, he did not clearly delineate the evidence to which the instruction
    applied; did not clearly explain the permitted and prohibited uses of the
    after-the-fact conduct evidence, including which pieces of it, if any, were
    admissible to prove
mens rea
and planning and deliberation; and failed
    to provide an instruction on the need to consider and reject alternative
    explanations before using evidence of after-the-fact conduct to support
    inferences of guilt.

[10]

In
    conclusion, while I consider some of the grounds of appeal to be unpersuasive,
    at least one is arguable. I am not prepared to conclude that the appeal is
    devoid of merit. This part of the test has been met.

(ii)

Is the Appointment Necessary?

[11]

This
    engages a consideration of the complexities of the arguments and the
    applicants ability to make arguments in support of the grounds of appeal.

[12]

The Crown concedes that the applicant cannot
    advance his grounds of appeal on his own. The conviction and the sentence are
    extremely serious. The applicant lacks legal training, is not fluent in
    English, and required an interpreter at trial. The issues raised are complex. I
    conclude that he would be unable to effectively advance his grounds of appeal
    without a lawyer. He has met this element of the test.

(b)

Insufficient Financial Means

[13]

The applicants evidence is that he has no
    income, no savings, and no assets. At trial, he paid $324,750 in legal fees.
    His family will not lend him more money. Some family members are unable to do
    so, while others have already lent him funds to assist with legal fees and are
    unable to assist any further in the absence of any prospect of repayment. He
    has been incarcerated since his arrest in 2016 and hence is not working.

[14]

He was denied funding from Legal Aid on the
    basis of financial ineligibility arising from his treatment of the proceeds of
    sale from the matrimonial home. He caused half of the proceeds of sale from the
    matrimonial home to be paid into court in trust for his three children and used
    the remainder for his legal fees for his trial counsel. The Childrens Aid
    Society of Peel had brought an application seeking an order that one-half of
    the net proceeds of sale be paid into court in trust for the three children.
    The day before the motion was to be heard, the applicant signed a direction
    instructing his real estate lawyer to pay the funds into court. Legal Aid
    denied funding on the basis that the payment was not made pursuant to a court
    order and the applicant had failed to give priority to the payment of his legal
    fees.

[15]

Applicants for a s. 684 order must be clear and
    transparent in disclosing their financial circumstances:
R. v. Staples
,
    at para. 40. The Crown complains that this applicant was not. In particular,
    counsel asserts that he failed to explain why he transferred half of the house
    proceeds in trust for his children. Although the applicants disclosure was not
    exemplary, I do not find this argument to be persuasive.

[16]

The three children were 15, 11, and 6 when their
    mother died in 2016, and the funds were paid into court in July 2017. They
    reside with their maternal grandmother, who is their guardian. It is clear that
    the request for the applicant to pay half of the matrimonial home proceeds into
    court emanated from the Childrens Aid Society, which was seeking security for
    the support of the children. I do not accept the Crowns argument that in
    paying the funds into court in trust for his three motherless children, one of
    whom was under the age of ten, he wrongfully failed to prioritize preserving
    funds for his legal defence.

CONCLUSION

[17]

In my view, the applicant has met his onus. It
    is desirable in the interests of justice that he be represented. I am also
    satisfied that he has insufficient means to obtain such representation.
    Accordingly, his s. 684 application is granted. As requested, I am appointing
    James Lockyer of Lockyer Campbell Posner to act as his counsel.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brooks, 2020 ONCA 605

DATE: 20200923

DOCKET: M51757

Hourigan J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Omar
    Brooks

Appellant/Applicant

Grzegorz Dorsz, for the appellant

Xenia Proestos, for the respondent

Heard: September 18, 2020

REASONS FOR DECISION

(a)

Background

[1]

The applicant pleaded guilty to possession of approximately seven grams
    of marijuana for the purpose of trafficking on January 17, 2008. The trial
    judge accepted the joint submission of a sentence of time served (30 days) with
    an 18-month term of probation.

[2]

Approximately ten years later, the applicant moved to the United States
    on a temporary work visa. He had earlier attempted to enter that country but
    was rejected. After his visa expired, he remained in the country illegally and
    was arrested on January 22, 2020, by Immigration and Customs Enforcement and
    the F.B.I. At the time of his arrest, there was an outstanding Canadian warrant
    for his arrest on human trafficking charges.

[3]

According to a letter from the applicants American counsel filed on the
    motion, because of his possession for the purpose of trafficking conviction,
    the applicant cannot be released on bond until his immigration case is
    concluded. He remains incarcerated in California. Nowhere in the record does
    the applicant explain how he was able to secure a visa given his criminal
    record.

[4]

The applicant brings this application for an extension of time to
    appeal. The deadline for commencing the appeal was over 11 years ago. For the
    reasons that follow, the application is dismissed.

(b)

Analysis

[5]

The test on a motion for an extension of the deadline to appeal is well
    established in this courts jurisprudence. Factors that may be relevant to the
    exercise of the courts discretion include:

(a) whether the applicant formed a
bona fide
intention
    to appeal within the appeal period;

(b) whether the applicant has accounted for or explained the
    delay;

(c) whether the proposed appeal has merit;

(d) the length of the delay;

(e) whether there is any prejudice
    to the respondent; and

(f) whether the applicant has taken the benefit of the
    judgment.

See:
R. v. Ansari
, 2015 ONCA 891, 128 O.R. (3d) 511, at paras. 22-26 and
R.
    v. Menear
(2002), 162 C.C.C. (3d) 233 (Ont.
    C.A.), at paras. 20-21.

[6]

Ultimately, the main consideration is
    whether the applicant has demonstrated that justice requires that the extension
    of time be granted:
Menear
, at para.
    21.

[7]

It is evident that the applicant
did
    not form a
bona fide
intention to appeal within the appeal period. To
    the contrary, he seems to have been content with his guilty plea and sentence for
    many years.

[8]

I am satisfied that the applicant has
    adequately explained the delay. It would appear that he felt that there was no
    reason to challenge the conviction until he was arrested.

[9]

Regarding the merits of the proposed
    appeal, the applicant submits that if an extension is granted, he will argue
    that his plea was not fully informed, "as a result of the complete absence
    of information he received prior to his plea." I note that the applicant
    has not filed an affidavit in support of his application.

[10]

Watt J.A. described the nature of an
    informed guilty plea in
R. v. Girn
,
    2019 ONCA 202, 145 O.R. (3d) 420, at para. 52, as follows:

An
    informed guilty plea means that an accused must be aware of the criminal
    consequences of the plea and the legally relevant collateral consequences. A
    legally relevant collateral consequence is a consequence that bears upon
    sufficiently serious legal interests of the accused. Immigration consequences
    bear on sufficiently serious legal interests, falling within the legally
    relevant collateral consequences of a guilty plea:
Wong
, at para 4.

[11]

Thus, to succeed on the appeal, the
    applicant would have to establish that his conviction's emigration consequences
    are sufficiently serious legal interests
that fall within the legally relevant collateral
    consequences of the guilty plea
. In my view,
    the applicant will have difficulty in establishing that he has met that threshold.
    A guilty plea has myriad consequences, not all of which can be considered sufficiently
    serious to warrant setting aside an otherwise valid plea. A consequence that the
    plea may impact future travel or emigration plans does not strike me as being a
    sufficiently serious legal interest, as it would strain the definition to
    include a wide variety of remote consequences that do not impact on an
    applicants legal rights in Canada. While I am not prepared to find that the
    proposed ground of appeal is frivolous, I believe it is very weak and has a
    minimal prospect of success.  The merits of the proposed appeal do not,
    therefore, militate in favour of an extension.

[12]

The length of delay, being more than eleven
    years, is obviously excessive. This factor suggests that granting an extension
    is not appropriate.

[13]

Regarding prejudice, the Crown submits
    that it will be prejudiced on the appeal because it may be difficult to
    cross-examine the application on any affidavit he files given that he is
    incarcerated in California. I am not persuaded that this amounts to real
    prejudice, as there is no reason why such a cross-examination cannot be
    conducted remotely. The Crown also argues that if the appeal is allowed and a new
    trial is ordered, it will be prejudiced in prosecuting a dated charge. There is
    no doubt that it will be more difficult for the Crown to prove its case on a
    new trial, but I do not believe that such future prejudice is a significant
    factor at this stage.  In my view, there is no substantial prejudice to the
    Crown.

[14]

The appellants counsel concedes that his
    client took the benefit of the judgment in that he was released from custody as
    a consequence of the joint sentencing submission.

[15]

The justice of the case is a critical
    factor in this application. The applicant submits that it would be inequitable
    for him to be subject to indefinite incarceration in the United States based on
    what he submits is a relatively minor offence.

[16]

In considering the justice of the case,
    this courts comments in
Menear
at
    para. 24 are apt:

Courts have granted an extension of time to allow an accused to
    attempt to set aside a guilty plea notwithstanding lengthy unexplained delay
    where there are unexpected consequences of the conviction, and there is good
    reason to doubt the validity of the conviction.  The appellant attempts to
    bring himself within that line of cases and relies upon
R. v. Gaudreault
(1992), 76 C.C.C. (3d) 188 (Que. C.A.) and
R. v. Hetsberger

(1979),
    47 C.C.C. (2d) 154 (Ont. C.A.).  In our view, the correct principle is as
    stated by Carthy J.A. in
R. v. Closs
(1998), 105 O.A.C. 392 (C.A.) at
    394:

It is my view
    that such orders should be made only in exceptional circumstances where there
    is a real concern that an injustice may have occurred.

There
    are many negative consequences of having a criminal conviction and it cannot be
    expected that these will all be explained to an accused prior to a plea; nor
    should the convicted person expect the judicial system to provide a fresh start
    when a surprising consequence of the conviction is encountered. We must have
    finality except where the demands of justice dictate otherwise. [Emphasis
    added.]

[17]

I am troubled by the applicant's
    failure to address in any meaningful way in his materials the impact of the
    human trafficking charges on his present legal situation in the United States.
    For example, there is nothing in the lawyer's letter regarding whether those
    charges would result in his continued detention or lead to his expulsion from
    the country. The applicant also makes much of the fact that the possession for
    the purpose of trafficking conviction means that he cannot obtain a bond before
    his hearing. However, there is no evidence regarding how long that pre-hearing
    custody is expected to last. Further, there is no evidence about how the
    applicant was able to obtain a visa, specifically whether he disclosed his
    criminal record.

[18]

Such information would be valuable in
    understanding the applicant's actual legal predicament and evaluating the
    justice of the case. The onus is on the applicant in this motion:
Menear
, at para 21. The applicants evidentiary record must establish
    that the justice of the case requires granting an extension of time to appeal: See
R. v. Gatfield
,
2016 ONCA 23, 345 O.A.C. 197, at paras. 5-9, 14-15.  I am
    not satisfied that the applicant has demonstrated that the justice of the case requires
    that the extension of time be granted.

[19]

In considering all of the relevant
    factors and keeping in mind the overarching justice of the case, I conclude
    that the applicant has not met his onus for an extension.

(c)

Disposition

[20]

The application is dismissed.

C.W.
    Hourigan J.A.