COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zoldi, 2018 ONCA 384

DATE: 20180419

DOCKET: C54289

Laskin, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Zoldi

Appellant

Lance C. Beechener and Alexander M. Ostroff, for the
    appellant

Shawn Porter, for the respondent

Heard: January 11, 2018

On appeal from the conviction entered by Justice Bruce G.
    Thomas of the Superior Court of Justice, sitting with a jury, on May 7, 2011.

Fairburn J.A.:

A.

OVERVIEW

[1]

Richard Zoldi and Shane Huard were charged in the first degree murder of
    Troy Hutchinson. The appellant discharged his counsel after the first
    prosecution ended in a mistrial. This led to the Crown severing the accused.
    Huards trial proceeded first, followed by the appellants trial.
[1]
This appeal is from the appellants conviction for second degree murder.

[2]

The appellant advanced what are said to be four errors in the jury
    charge. He pursued two errors in oral argument, but focused on what he claims
    is an error in the charge relating to the
mens rea
for aiding or
    abetting murder. For the reasons that follow, despite an otherwise very well-organized
    and coherent charge, the jury was misdirected on the required state of mind for
    an aider or abettor to murder. As this is not an appropriate case in which to apply
    the curative proviso and a new trial is required, there is no need to address
    the other issues.

B.

BACKGROUND FACTS

[3]

On August 24, 2006, the appellant, Huard, and a third man tried to rob
    some local drug dealers. Things did not go as expected and the appellant
    suffered a stab wound to his shoulder.

[4]

Two days later, one of Huards neighbours left a .22 calibre Browning
    semi-automatic handgun at Huards residence. When the neighbour returned to
    Huards apartment later in the day, the appellant and Huard were present, but
    the gun was not. Shortly after denying knowledge of the guns whereabouts, Huard
    and the appellant were seen leaving Huards apartment with the appellant toting
    a bag in hand.

[5]

Susan Sladic used to purchase drugs from the man who stabbed the
    appellant. She was originally charged with Hutchinsons murder, but that charge
    had been withdrawn by the time of trial. She testified that in the lead up to the
    events resulting in Hutchinsons death, the appellant pointed a handgun at her
    and demanded that she set up a drug deal with the man whom the appellant thought
    was responsible for stabbing him. Sladic knew that the drug deal was a ruse to
    give the appellant access to that man. When Sladic made the call, another man named
    Hutchinson answered the phone. Hutchinson said that he would deliver the drugs.
    Although Sladic informed the appellant that Hutchinson would be doing the
    delivery, the appellant wanted to go ahead anyway. Sladic maintained that she thought
    that the appellant and Huard were only going to bust kneecaps.

[6]

The appellant, Huard, Sladic and two others drove to the meeting spot. Huard
    told Sladic to stay quiet and said: You aint seen nothin so dont say nothin.
    She saw the appellant put on a glove.

[7]

Hutchinson was shot in the stomach at close range. No one saw who shot
    him. Numerous witnesses saw two white males at the scene of the shooting, but were
    able to provide only very general descriptions of the males. After a shot was
    heard, Hutchinson called out murder and fell to the ground. The men were then
    seen assaulting Hutchinson, going through his pockets and running away.

[8]

The gun, a glove and a t-shirt were found close to the scene. The glove
    and t-shirt contained gunshot residue. Sladic could not identify the glove as
    the one she had seen the appellant place on his hand. The t-shirt contained the
    appellants DNA profile. As for the gun, it matched the description given by
    the man who had left the gun at Huards apartment. Not long after the shooting,
    the appellant told someone that they had got in a fight with somebody, beat
    someones ass.

C.

ANALYSIS

(i)

Trial
Counsels Positions on Aiding and Abetting

[9]

Throughout the appellants trial, the Crown (not Mr. Porter) was
    unwavering in the theory that the appellant was the actual shooter. Despite this
    position, the Crown insisted that, in addition to instructing the jury on the
    appellants potential liability as the principal actor, the jury should also
    receive instructions on aiding and abetting as possible ways in which the
    appellant participated in the crime.

[10]

At
    the outset of the pre-charge conference, the trial judge expressed some
    reservations about the Crowns position and asked the parties for input. Crown
    counsel expressed the view that because there was no direct evidence as to
    whether Zoldi or Huard had shot Hutchinson, the trial judge was duty bound to
    instruct the jury on principal actor, aiding and abetting routes to liability.
    As the trial Crown put it, I think the law requires you to.

[11]

Although
    the defence initially took the position that there was no air of reality to aiding
    or abetting, this position changed after some discussion during the pre-charge
    conference. In the end, all counsel agreed that aiding and abetting should be
    left for the jurys consideration. Counsel were provided with the opportunity
    to review the draft charge on those modes of participation. There were no
    objections to the instructions on aiding and abetting before, during or after
    the charge was delivered.

(ii)

The
Objection
on Appeal

[12]

The
    appellant maintains that the charge left an unconstitutional path to conviction
    arising from the failure to correctly instruct the jury on an aider or
    abettors knowledge of the principal actors intention for murder.
    Specifically, the appellant alleges that the instructions failed to impart to
    the jury that an aider or abettor to murder must know that the principal actor
    has subjective foresight of death. The appellant argues that this error was
    repeated on multiple occasions. He places particular emphasis on what he says
    was the culminating error, an incorrect answer to the jurys final question, a
    question that demonstrated confusion by the jury on the very point that is said
    to constitute reversible error.

[13]

Crown
    counsel fairly acknowledges that the charge contains the alleged erroneous instructions.
    However, Crown counsel encourages the court to read the charge as a whole. Viewed
    in context, and against the backdrop of the entire trial, the Crown submits that
    the jury would have properly understood what the Crown had to prove beyond a
    reasonable doubt in order to establish the appellants state of mind as an
    aider or abettor to murder.  Alternatively, even if the jury was labouring
    under a misapprehension as to the correct legal standard, the case against the
    appellant on second degree murder was so formidable that the curative proviso
    should apply to uphold the conviction.

(iii)

General
Structure
of the Charge

[14]

The
    trial judge was faced with a difficult task in charging the jury. He had to
    address multiple challenging issues, including providing directions on how to
    approach the evidence of highly unsavoury witnesses, post-offence conduct,
    continuity, expert and eyewitness identification evidence. The trial judge did
    an impressive job at bringing together a concise, comprehensive, yet
    comprehensible charge. Unfortunately, the charge took on an added layer of
    complexity when the appellants potential liability as an aider or abetter to
    the murder was placed into the mix.

[15]

Section
    21(1) of the
Criminal Code
provides for three modes of participation
    in a crime. Section 21(1)(a) governs principal parties: those who actually
    commit the crime. Sections 21(1)(b) and (c) govern aiders and abettors
    respectively. Those who help, through acts or omissions, or encourage others to
    commit crimes, may also be guilty of those crimes. Although different
    considerations are taken into account when assessing liability under the
    different modes of participation, principals, aiders, and abettors are equally
    culpable at law:
R. v. Briscoe,
2010 SCC 13, [2010] 1 S.C.R. 411, at
    para. 13.

[16]

About
    halfway through the charge, the trial judge introduced the different modes of
    participation. Two different decision trees were provided to the jury to look
    at as the modes were discussed, the first tree dealing with principals and the second
    with aiders and abettors.

[17]

The
    jury was first instructed on principal actor liability for murder, the form of
    liability that accorded with the Crowns theory that the appellant was the
    actual shooter. Under s. 229(a) of the
Criminal Code,
a person who commits
    murder as a principal actor must either (i) mean to cause death or (ii) mean to
    cause bodily harm knowing that it is likely to cause death, and be reckless
    whether death ensues.

[18]

The
    state of mind under s. 229(a)(i) is straightforward: did the person intend to
    cause death? The state of mind under s. 229(a)(ii) involves a somewhat more
    nuanced inquiry, involving three components: intent, knowledge, and
    recklessness. The questions are, did the principal actor: (a) intend to cause
    bodily harm; (b) know that the bodily harm would likely be fatal; and (c) show
    recklessness as to whether the victim died:
R. v. Moo,
2009 ONCA 645,
    247 C.C.C. (3d) 34, at para. 45.

[19]

Proof
    beyond a reasonable doubt of the subjective foresight of death was raised to
    the level of a constitutional requirement in
R. v. Martineau,
[1990] 2
    S.C.R. 633, at p. 646. The intention under s. 229(a)(ii) must be to cause
    bodily harm that is so grave and serious that the person inflicting the harm
knows
that the harm will likely kill the victim:
Moo,
at para. 46. Requiring
    subjective foresight of death ensures that the principal actors moral
    responsibility is commensurate to the serious stigma and life sentence attaching
    to a murder conviction:
Martineau,
at p. 646.  Accordingly, the
    principal actor must have subjective intent to cause bodily harm and subjective
    knowledge that the harm is of a nature that is likely to result in death:
R.
    v. Cooper,
[1993] 1 S.C.R. 146, at p. 155. Recklessness merely involves
    having a deliberate disregard for the death that the appellant knows is likely
    to result from his actions.

[20]

It
    is agreed that the instructions pertaining to the
mens rea
for the
    actual shooter  the principal actor  were generally correct.
[2]
After instructing the jury on this mode of participation, the trial judge moved
    on to aiders and abettors under ss. 21(1)(b) and (c). It is here that the trial
    judge is said to have erroneously dropped the need for the aider or abettors
    knowledge of the principals subjective foresight of death.

(iv)

The
Impugned
Instructions on Aiding
    and Abetting

[21]

The
    instructions on aiding and abetting commenced with reference to the second decision
    tree. The first box on the decision tree focuses on the
actus reus
for
    aiding and abetting, often referred to as the conduct component:
R. v.
    Maciel,
2007 ONCA 196, 219 C.C.C. (3d) 516, at paras. 86-87. To fulfill this
    requirement, an aider must do or omit to do something that assists the
    principal in committing the offence and an abettor must encourage the principal
    to do so.

[22]

The
    jurors were instructed that if they determined that the conduct component was
    met, then they would move on to consider the
mens rea
for an aider or
    abettor to murder, often referred to as the fault component:
Maciel,
at
    paras. 86-87. An aider or abettor must have both knowledge and intention. He or
    she must know that the principal actor intends to commit the offence and must
    intend to assist or encourage the principal actor in committing it:
Briscoe,
at paras. 16-17;
Huard,
at para. 63. Accordingly, as noted in
Briscoe,
at para. 18, the aider or abettor must be:

armed with
knowledge
of the perpetrators intention
    to commit the crime, [and act] with [the]
intention
of assisting the perpetrator in its commission. It is only in this sense that
    it can be said that the aider and abettor must intend that the principal
    offence be committed. [Italics in original, underline added.]

[23]

Requiring
    that an aider or abettor know the principals intention under s. 229(a)(i) or
    (ii), including knowledge of the subjective foresight of death under s.
    229(a)(ii), ensures that murder convictions do not flow to aiders and abettors
    where there is diminished moral responsibility.

[24]

The
    second box on the aiding and abetting decision tree dealt with the required
    mental state for this mode of participation. It posed the following problematic
    question:

That when ZOLDI did the act
    that helped or encouraged HUARD to commit the unlawful act that caused the
    death of the deceased, did ZOLDI:

(a)know that HUARD intended to kill the
    deceased, or
intended to cause him bodily harm likely to result in death,
and be reckless whether he died or not?  [Emphasis added.]

[25]

The
    appellant maintains that the question is flawed because it drops reference to
    the need for the aider or abettor to know that the principal actor  Huard
    had the constitutionally required intention for murder under s. 229(a)(ii):
    subjective foresight of death. More specifically, the appellant submits that
    the question should have emphasized Huards foresight of death in the following
    way: Know that Huard intended to kill the deceased, or intended to cause [the
    deceased] bodily harm that Huard
knew
was likely to result in death
    .

[26]

The
    accompanying jury instructions are said to have aggravated the error. Although
    on a couple of occasions the
mens rea
was correctly stated, on at
    least seven occasions there was no reference to the need for the appellant to
    know that Huard knew that the bodily harm

would likely result in
    death. The following examples from the charge illustrate the objection on
    appeal:

Crown counsel must prove beyond a reasonable doubt that Richard
    Zoldi knew Shane Huard intended to kill Hutchinson
or cause him bodily harm
    likely to result in death
and be reckless whether death ensued and that
    Richard Zoldi intended to help Huard do so.

If  you are not satisfied beyond a reasonable doubt that
    Richard Zoldi knew that Shane Huard intended to kill Troy Hutchinson or
cause
    him bodily harm likely to result in death
, and was reckless whether death
    ensued or not, and that Richard Zoldi intended to help Huard do so, you must
    find him not guilty of second degree murder . [Emphasis added.]

[27]

Although
    knowledge of Huards intention under s. 229(a)(i) was properly described,
    knowledge of Huards intention under s. 229(a)(ii) was not. While there are multiple
    ways in which it could have been conveyed in the charge, the jury needed to
    understand that in order to have the required mental state as an aider or
    abettor to Hutchinsons murder, the Crown had to prove beyond a reasonable
    doubt that the appellant: (a)
knew
either (i) that Huard intended to
    cause Hutchinsons death or (ii) that
Huard meant to cause Hutchinson
    bodily harm that Huard knew was likely to cause Hutchinsons death
and be
    reckless whether death ensued or not; and (b) intended to help or encourage
    Huard in committing Hutchinsons murder.

[28]

When
    considering the impugned passages in isolation, Crown counsel acknowledges the
    error as alleged. This is a reasonable concession. By omitting reference to
    knowledge of Huards foresight of death, the challenged instructions conveyed
    to the jury that the required state of mind as an aider or abettor to murder could
    be based upon knowledge that Huard intended to cause bodily harm that would be
    objectively likely to result in Hutchinsons death.

[29]

This
    impugned language tracks almost exactly the impugned language in
R. v.
    McIntyre,
2012 ONCA 356, 291 O.A.C. 359, where this court ordered a new
    trial.  As
McIntyre
was decided after the jury charge was given in
    this case, the trial judge did not have the benefit of this courts reasoning. As
    noted in
McIntyre,
at para. 20, the error in the
mens rea
component
    of aiding and abetting laid out a roadmap to convict the appellant of aiding
    or abetting [the principal] to murder the deceased that did not require the
    jury to find that [the principal] had the subjective intention required for
    murder.

(v)

Do the
Erroneous
Instructions Constitute
    Misdirection?

[30]

Although
    Crown counsel does not shirk from the flawed aspects of the charge relating to
    the state of mind for an aider or abettor to murder, and acknowledges the significant
    symmetry between the instructions in
McIntyre
and this case, he
    maintains that
McIntyre
is distinguishable.

[31]

First,
    Crown counsel argues that the flawed
McIntyre
instruction is different
    in that the jury was instructed that the Crown must prove that the appellant
    knew that the principal intended to cause [the deceased] bodily harm that
    would likely kill [the deceased] . Crown counsel maintains that the instruction
    in this case, that the appellant had to know that Huard intended to cause [the
    deceased] bodily harm likely to result in death , uses a more active voice. Although
    there is a slight difference between how the
mens rea
for an aider or
    abettor was

conveyed in
McIntyre
and this case, neither instruction
    included reference to the requirement that the party must know about the
    principals actual foresight of death.

[32]

Second,
    Crown counsel makes the important observation that the
McIntyre
jury
    was only instructed on aiding and abetting. In contrast to
McIntyre
,
    the jury in this case also received instructions relating to principal actor
    liability. Not only were those instructions largely correct, but, the trial
    judge told the jury that they should think about those instructions whenever
    he spoke of the mental element or intention necessary to commit murder. Accordingly,
    Crown counsel maintains that the impact of the impugned aiding and abetting instructions
    was softened by the correct
mens rea
instructions given in the context
    of discussing principal actor liability.

[33]

Although
    different parts of a charge may convey different descriptions of the
    requirements of s. 229(a)(ii), the ultimate question is whether, having regard
    to the charge as a whole, the jury would have understood the correct legal test
    to apply:
R. v. Rodgerson,
2014 ONCA 366, 309 C.C.C. (3d) 535,

at
    paras. 22-26. See also:
R. v. Daley,
2007 SCC 53, [2007] 3 S.C.R. 523,
    at paras. 30-31. In other words, not every misinstruction amounts to a misdirection.

[34]

To
    determine the effect of a misinstruction, the charge must be considered as a
    whole and against the contextual backdrop of the entire trial. Having engaged
    in this exercise, I do not agree that the jury would have understood the
    correct legal principles to apply in considering whether the appellant was an
    aider or abettor to murder. I say this for three reasons: (a) the structure of
    the charge; (b) the definition given to recklessness; and (c) the answer given
    to the jurys final question.

(a)

The
    Structure of the Charge

[35]

The
    structure of the charge discouraged the jury from considering the legal
    principles applicable to principal actors, when considering aiders and
    abettors.

[36]

The
    trial judge delivered his instructions within very specific participation
    silos. The jury was instructed that two decision trees were being provided, one
    for principals and the other for aiders and abettors. The jury was told that
    this was being done because [t]he analysis is different. With reference to
    the applicable decision tree, the trial judge then delivered his instructions
    on principal actor liability, followed by aiding and abetting liability.

[37]

Given
    the structure of the charge, I am not satisfied that the jury would have
    transferred the
mens rea
for a principal actor into their
    deliberations regarding the mental state for an aider or abettor to murder. To
    be clear, the trial judge was right to tell the jury that the analysis between
    the modes of participation was different. Having had the required different
    analysis highlighted for them, though, the jury may have thought that, in the
    context of aiding and abetting, the absence of knowledge of the principals subjective
    foresight of death was by design.

(b)

The
    Definition Provided for Reckless Whether Death Ensues or Not

[38]

Even
    if the jury thought that the instruction on the mental element for a principal
    was transportable to the aiding and abetting context, there was a misstep in the
    definition provided for the words reckless whether death ensues or not in s.
    229(a)(ii).  This definitional misstep served to aggravate the deficiency in
    the mental element for aiding and abetting.

[39]

Recklessness
    under s. 229(a)(ii) was only defined once in the charge: [f]or your purposes
    reckless means that Richard Zoldi saw the
risk
that Troy Hutchinson
could
die from the injury to be inflicted upon him but he went ahead anyway and took
    the chance (emphasis added). The parties agree that this definition is
    incorrect.

[40]

The
    recklessness component within s. 229(a)(ii) requires proof of knowledge that death
    will
likely
result and a deliberate disregard for this consequence by
    going ahead anyway:
R. v. MacDonald,
2008 ONCA 572, 236 C.C.C. (3d)
    269,

at para. 46, 47, 49;
Moo,
at paras. 63-65. Defining the
    recklessness component within s. 229(a)(ii) as it was in this case, as a risk
    that death could ensue, creates a danger that the jury may proceed on the basis
    of something less than subjective foresight of death:
MacDonald,
at
    para. 46.

[41]

This
    erroneous instruction is not uncommon and iterations of it have been given in
    various charges:
R. v. Czibulka
(2004), 189 C.C.C. (3d) 199 (Ont.
    C.A.), at paras. 66-68, leave to appeal refused, [2004] S.C.C.A. No. 502;
Moo
,
    at paras.
54-55, 63-65;
R. v. Patterson
(2006), 205
    C.C.C. (3d) 171 (Ont. C.A.), at paras.
36, 52. Standing alone, the error
    has rarely proved fatal because it is typically accompanied by a proper instruction
    relating to the need for subjective foresight of death. When accompanied by a
    proper instruction relating to the intention and knowledge components of s.
    229(a)(ii)  intention to cause bodily harm knowing that the bodily harm will
    likely be fatal  there is less risk that a jury will be misled by recklessness
    being erroneously defined.

[42]

Once
    the Crown establishes the principals intention to cause such grave and serious
    bodily harm that he knows it is likely to result in death, recklessness follows
    as almost a matter of course:
R. v. Nygaard
, [1989] 2 S.C.R. 1074, at
    p. 1088. See also:
Cooper
, at p. 154-155;
Rodgerson
, at para.
    23, aff'd on other grounds, 2015 SCC 38, [2015] 2 S.C.R. 760;
Moo
,
    at para. 63. This is why being reckless whether death ensues or not is often
    referred to as an afterthought.

[43]

If
    the misstep in the definition of recklessness was the only difficulty in
    relation to the instructions regarding the required mental state for murder, it
    may well have been inconsequential to the result of this case. The difficulty
    is that, in the context of aiding and abetting, the error in the definition of
    recklessness was not lessened by a correct instruction regarding the
    appellants need to know Huards subjective foresight of death. Instead the
    definitional error only served to compound the deficiency in the instructions.

(c)

The
    Jurys Final Question

[44]

The
    final jury question, and answer provided, also sheds light on this issue.

[45]

The
    jury deliberated for almost two full days. In response to the first number of
    questions, the jury received correct instructions about the
mens rea
for
    a principal actor. In their final question, question five, the jury asked about
    decision tree two  the aiding and abetting tree. As the jury had been earlier instructed
    that they should only consider decision tree two if they had failed to reach a unanimous
    verdict of guilty as a principal to first degree murder, the question conveyed
    that at least one juror had a reasonable doubt that the appellant was the shooter
    in a first degree murder.

[46]

The
    jurys question was directed at boxes two and three on decision tree two, the
    boxes pertaining to state of mind and planning and deliberation. The jury
    asked:

Tree 2

Box 2 v.s. Box 3

- what is the difference b/w knew Huard intended to kill/cause
    bodily harm likely to result in death

and

- knew Huard intended to commit planned & deliberate murder

is this a distinction b/w the 2 definitions of what constitutes
    murder?

ie Intent to kill

vs.

intent to cause bodily harm

or is it a distinction b/w planned
    & deliberate murder?

[47]

Notably,
    the question fails to refer to the need for Huards subjective foresight of
    death: what is the difference b/w knew Huard intended to kill/
cause bodily
    harm likely to result in death
, reinforcing the view that the jury was
    very possibly, if not likely, deliberating under a misapprehension about
    whether the appellants knowledge of Huards subjective foresight of death was
    required.

[48]

The
    trial judge started answering the question by repeating the content of box two
    on the aiding and abetting decision tree, which erroneous content has been previously
    discussed. Then, the jury was instructed as follows:

If you find that in fact Richard Zoldi when he aided or abetted
    Shane Huard to cause the death of Troy Hutchinson
knew
that Huard
    intended to kill the deceased or
intended to cause him that serious bodily
    harm with recklessness
and knew and intended to help Shane Huard do that,
    then Richard Zoldi would be guilty of second degree murder.

[instruction on planning and deliberation]

So let me back up a little bit and tell you again this. If,
    when Richard Zoldi did the act that helped or encouraged Shane Huard to commit
    the unlawful act that caused the death of the deceased,
Richard Zoldi
    either did not know that Huard intended to
kill the deceased or
cause
    him that

serious bodily [harm]
or did not intend to help or
    encourage Huard to do so, hes guilty of manslaughter and not murder. [Emphasis
    added.]

[49]

This
    answer allowed the jury to convict the appellant as an aider or abettor to
    murder, without a finding that the appellant knew that Huard had the subjective
    intention for murder. This difficulty was magnified by virtue of the earlier
    instruction provided for the meaning of recklessness.

[50]

Jury
    questions demonstrate that the jury is struggling with something and that they
    require direction. The answer to such questions must provide correct legal
    assistance. As noted by Cory J. in
R. v. S.(W.D.),
[1994] 3 S.C.R.
    521, at p. 530: The jury has said in effect, on this issue there is confusion,
    please help us. That help must be provided. See also:
R. v. Austin
(2006),
    214 C.C.C. (3d) 38 (Ont. C.A.), at para. 15.

[51]

The
    jury was demonstrating some confusion. They needed assistance. Unfortunately,
    the answer served to repeat the error that had already been repeated on
    multiple occasions in the charge. In the end, read in the context of the entire
    charge, I am not satisfied that the jury properly understood the knowledge
    component of the mental element for an aider or abettor to murder.

(vi)

The
Curative
Proviso

[52]

Crown
    counsel maintains that, even if this court concludes that the jury instructions
    were in error, the conviction should be upheld under the curative proviso, s.
    686(1)(b)(iii) of the
Criminal Code
,

which states that an
    appeal may be dismissed when, notwithstanding an error of law, the court is of
    the opinion that  no substantial wrong or miscarriage of justice has
    occurred.

[53]

The
    curative proviso applies where errors are so minor, harmless or insignificant,
    that they could not have affected the verdict. Equally, convictions may be
    upheld where, while serious, the errors do not give rise to a miscarriage of
    justice because the case against the accused is so overwhelming that a
    conviction would have been inevitable:
R. v. Van,
2009 SCC 22, [2009]
    1 S.C.R. 716, at paras. 35-36;
R. v. Jaw,
2009 SCC 42, [2009] 3 S.C.R.
    26, at para. 42. Crown counsel draws on the second category for the application
    of the curative proviso, claiming that this was an overwhelming case of second-degree
    murder as a principal party and, accordingly, that the conviction should be
    maintained.

[54]

I
    accept that the case against the appellant as the shooter was a strong one. The
    appellant had the motive; he asked for the meeting to take place (albeit with
    the man who had stabbed him two days earlier); the appellant was carrying the
    bag that may have contained the gun when he and Huard left Huards apartment;
    the appellant pointed a gun at Sladic; his DNA was found on the t-shirt close
    to where Hutchinson was shot, a t-shirt that also had gunshot residue on it. And,
    if the appellant was the shooter, then it seems self-evident that when he shot
    Hutchinson at close range in the stomach, he had the intention for murder,
    specifically, the intention to kill.

[55]

The
    difficulty with applying the curative proviso on the theory of principal
    liability, though, is that this is one of those rare cases where we know that
    the jury actually considered the appellants liability as an aider or abettor.
    The jury was instructed not to consider aiding and abetting unless there was a
    lack of unanimity regarding the appellant as a principal to the first degree
    murder of Hutchinson. The fifth and last question that the jury asked before
    convicting was rooted directly in aiding and abetting, meaning that at least
    one juror was not satisfied beyond a reasonable doubt that the appellant was
    the shooter in a planned and deliberate murder.

[56]

Crown
    counsel attempts to blunt the force of question five. He does so by reminding
    the court that the jury was instructed that anything short of unanimity on
    first degree murder required that they consider aiding and abetting. Based upon
    this instruction, Crown counsel maintains that the jury may have found the
    appellant guilty as a principal to second degree murder and only moved over to
    consider aiding and abetting because one or more jurors had a reasonable doubt
    about him being a principal to a planned and deliberate first degree murder.
[3]

[57]

The
    fact is that we do not know why the jury moved on to consider aiding and
    abetting. Bearing in mind the question asked, it cannot be said with any level
    of confidence that the jury only moved on to decision tree two because a juror
    or jurors had a reasonable doubt on planning and deliberation. Question five is
    simply too nebulous in nature. It could mean that the jury was having
    difficulty with the mental element for an aider or abettor, or difficulty with
    planning and deliberation for an aider or abettor, or both. It would be at best
    speculative to try and figure out why the jury was considering aiding and
    abetting.

[58]

Staying
    with what is certain, if the jury followed the trial judges instructions, an
    assumption that I proceed upon, they considered the appellants liability as an
    aider or abettor. In these circumstances, it cannot be concluded that a
    conviction was inevitable.

[59]

While
    it is a reasonable inference that, even as an aider or abettor, the appellant
    knew a gun was being brought to the scene, this would not necessarily mean that
    he knew Huard had the intention to kill or cause bodily harm that Huard knew was
    likely to result in death. Nor is it clear that, as an aider or abettor, the
    appellant intended to help or encourage a murder. In this regard, I note
    Sladics evidence about her conversation with the appellant prior to attending
    at the scene. He only made mention of kneecaps. She understood the appellant
    to mean that he was gonna bust [Hutchinsons] kneecaps. This evidence could
    have raised a doubt about what the appellant knew was going to occur and what
    he intended to happen. If Huard was the shooter, Huards intention for murder
    could have been formed quickly, after arrival at the scene and without the
    appellants knowledge.

[60]

I
    am not satisfied that the case against the appellant as an aider or abettor was
    so overwhelming that any other verdict was impossible to obtain:
Van,
at
    para. 34.

[61]

As
    for the absence of an objection to the charge, although it demonstrates a
    failure to give the trial judge the assistance that he and the administration
    of justice deserved, it does not mean that the error played little to no role
    in the resolution of the trial. Nor can the failure to object be seen as a
    strategic decision on the part of counsel. In the circumstances of this case,
    given the nature of the erroneous instruction, the failure to object does not
    inform the result.

[62]

This
    is not an appropriate case for the application of the curative proviso.

D.

CONCLUSION

[63]

I
    would grant the appeal, quash the conviction for second degree murder, and, as
    the appellant was acquitted of first degree murder, and that acquittal was not
    appealed, order a new trial on second degree murder.

Released: April 19, 2018

Fairburn J.A.

I agree John Laskin
    J.A.

I agree G.T. Trotter
    J.A.

[1]
Huard was convicted of first degree murder:
R. v. Huard,
2013 ONCA 650,
    302 C.C.C. (3d) 469.

[2]
The reference to generally correct relates to a
misstep in
    the definition for recklessness. The impact of this erroneous definition will
    be discussed later.

[3]
The appropriateness of this instruction was not raised on appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA
    400

DATE: 20180425

DOCKET: C63305 and C63351

Doherty, Brown and Nordheimer JJ.A.

BETWEEN

David Schnarr

Plaintiff (Respondent)

and

Blue Mountain Resorts Limited

Defendant (Appellant)

AND BETWEEN

Elizabeth Woodhouse

Plaintiff (Appellant/

Respondent by
    cross-appeal)

and

Snow Valley Resorts (1987) Ltd. Aka Snow Valley
    (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, 717350
    Ontario Ltd.

Defendants (Respondents/

Appellants by
    cross-appeal)

John A. Olah, for the appellant, Blue Mountain Resorts
    Limited

Edward Chadderton and Jeffery Beleskey, for the
    respondents/appellants by cross-appeal, Snow Valley Resorts (1987) Ltd. Aka
    Snow Valley (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley,
    and 717350 Ontario Ltd. (collectively, Snow Valley)

Paul J. Pape, Shantona Chaudhury, and Evan Rankin, for
    the respondent, David Schnarr and for the appellant/respondent by cross-appeal,
    Elizabeth Woodhouse

Heard: February 7-8, 2018

On appeal from the orders of
    Justice Ria Tzimas of the Superior Court of Justice, dated January 6, 2017 with
    reasons reported at 2017 ONSC 114, and of Justice John McCarthy of the Superior
    Court of Justice, dated January 13, 2017 with reasons reported at 2017 ONSC 222.

COSTS ENDORSEMENT

[1]

On March 28, 2018, this court released its decision allowing both appeals
    and the cross-appeal, setting aside the two orders below, and remitting the
    matters back to the Superior Court of Justice to proceed in accordance with this
    courts reasons.  We invited the parties (other than the interveners) to make
    submissions on the issue of the costs of the appeal.  We have now received and
    reviewed those submissions.

[2]

The appellant, Blue Mountain, submits that there should be no order as
    to costs given the novelty of the legal issues raised in these appeals.  The
    respondent, David Schnarr and the appellant/respondent by cross-appeal,
    Elizabeth Woodhouse, make the same submission. The Snow Valley
    respondents/appellants by cross-appeal submit that costs should be awarded to
    them on a partial indemnity basis in the sum of $25,000.

[3]

In our view, there should not be any award of costs of the appeal.  These
    proceedings are properly characterized as public interest litigation.  They
    raised novel issues regarding the interplay between two provincial statutes.  As
    such, in our view, Mr. Schnarr and Ms. Woodhouse fall within the second
    category of public interest litigation as set out in
Odhavji Estate v.
    Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263, namely, they are litigants
    who have a pecuniary interest in the litigation but whose interests are modest
    in comparison to the cost of the proceedings.  By the cost of the proceedings,
    in this context, we mean the ambit or scope of the proceedings.  There was a
    much broader public interest involved in this case than the individual claims
    of Mr. Schnarr and Ms. Woodhouse, as the nature and number of interveners
    demonstrates.  It is also appropriate, in cases where a novel question of
    statutory interpretation is involved, to make no order as to costs:
Dam
    Investments Inc. v. Ontario (Minister of Finance)
,
2007 ONCA 527, 226
    O.A.C. 40;
Hare v. Hare
(2006), 83 O.R. (3d) 766 (C.A.).

[4]

Consequently, there will be no order for costs of the appeals.

Doherty J.A.

David Brown J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Seguin v. Pearson, 2018 ONCA 355

DATE: 20180410

DOCKET: C63029

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

BETWEEN

Carol-Anne Seguin (now Carol-Anne Porter)
Mary Elizabeth Paterson and Florence-Margaret Gordon

Plaintiffs (
Appellant
)

and

Lori Dianne Pearson

Defendant (Respondent)

Michelle L. Kropp, for the appellant

Lionel J. Tupman, Amanda Bettencourt and John E.S.
    Poyser, for the respondent

Heard: March 28, 2018

On appeal from the judgment of Justice Hugh K. OConnell
    of the Superior Court of Justice, dated February 29, 2016 (with additional
    reasons dated September 9, 2016).

REASONS FOR DECISION

[1]

The appellant appeals from the dismissal of her action to invalidate
    her fathers two most recent wills, under which the respondent is the principal
    beneficiary, and to set aside an
inter vivos
transfer of his house
    into joint tenancy with the respondent.

[2]

At the conclusion of the appellants submissions, we advised the parties
    that the appeal was dismissed with reasons to follow. These are those reasons.

[3]

The appellant and her sisters are the children of Robert Geddes Paterson,
    who passed away on December 23, 2011. Mr. Paterson had left his wife and
    daughters in 1981. He was estranged from his family until their reconciliation
    in 2002.

[4]

Mr. Paterson met the respondent in 1994. They lived together in a common
    law relationship from 1995 until 2002, when the respondent left Mr. Paterson to
    pursue a new relationship. While separated, Mr. Paterson and the respondent kept
    in contact. They eventually resumed their relationship in 2006. The respondent
    was Mr. Patersons caregiver until his death, and Mr. Paterson also recognized
    her as his common law spouse.

[5]

This case turned on the validity of Mr. Patersons most recent will,
    dated March 11, 2011, under which the respondent was the residual beneficiary
    of all of his property after specific bequests to his three daughters.

[6]

The trial judge rejected the appellants contention that the disposition
    to the respondent was the product of undue influence. He found, on the basis of
    all of the evidence, that the appellant had failed to prove that the
    respondent exerted dominance over Mr. Patersons will.

[7]

The main thrust of the appellants appeal is that the trial judge erred
    in finding that the respondent had not exercised undue influence over Mr.
    Paterson.

[8]

Specifically, the appellant submits that the relationship between Mr.
    Paterson and the respondent gave rise to a presumption of undue influence,
    which the respondent failed to rebut. In connection with this ground of appeal,
    the appellant argues that the trial judge failed to consider some evidence and
    misapprehended other relevant evidence.

[9]

We do not accept these submissions for the following reasons.

[10]

First,
    the appellant mischaracterizes the test for undue influence in the context of
    testamentary gifts. The rebuttable presumption of undue influence arises only
    in the context of
inter vivos
transactions that take place during the
    grantors lifetime. It arises from particular relationships when the validity
    of
inter vivos
dispositions or transactions is in issue; once the
    presumption is established, the onus shifts to the transferee to rebut the
    presumption:
Banton v. Banton
(1998), 164 D.L.R. (4th) 176 (Ont. Ct.
    (Gen. Div.)), at p. 209.

[11]

In
    the case of wills, it is testamentary undue influence, amounting to outright
    and overpowering coercion of the testator, which must be considered. The party
    attacking the will bears the onus of proving undue influence on a balance of
    probabilities:
Vout v. Hay
, [1995] 2 S.C.R. 876, at p. 887; see also
Neuberger
    v. York
,
2016 ONCA 191, 129 O.R. (3d) 721, at paras. 77-78
.

[12]

We
    agree that the trial judge erred in his articulation of the test for undue
    influence applicable to testamentary gifts. When determining the validity of
    Mr. Patersons March 11, 2011 will, the trial judge appears to have erroneously
    conflated the test for undue influence that applies to
inter vivos
transfers with the relevant test in relation to testamentary gifts.

[13]

In
    our view, this error did not affect the reasonableness of his conclusions that
    the respondent exercised no undue influence over Mr. Paterson, and that Mr.
    Paterson independently decided to make the impugned wills and the transfer of
    property in favour of the respondent.

[14]

The
    trial judges finding that there was no undue influence using the
inter
    vivos
standard would necessarily be the same had the trial judge applied
    the correct standard applicable to testamentary dispositions.

[15]

Under
    either test, the trial judge was required to examine all of the relevant
    surrounding circumstances. As a result, the trial judges decision turned on
    his findings of fact which were firmly rooted in the evidence before him. This
    included the medical and lay evidence of Mr. Patersons state of mind and
    overall health; the nature and length of his relationships with the respondent
    and his children; and his instructions to his solicitors, which indicated that
    he had thought deeply and thoroughly about the disposition of his property.

[16]

With
    respect to the solicitors instructions, it was particularly significant to the
    trial judge that Mr. Patersons wills and transfer were not the result of rash
    or emotional actions but followed several months of Mr. Patersons deliberate
    reflection, coupled with the meticulous and comprehensive legal advice that he
    received from two experienced practitioners.

[17]

Finally,
    the appellant directs our attention to paragraph 368 of the trial judges
    lengthy reasons, which contains a reference to the respondents evidence. The
    appellant submits that the trial judge erred in effectively incorporating by
    reference the written submissions of respondents counsel into his reasons,
    without identifying the particular submissions adopted or engaging in an
    independent assessment of the trial evidence.

[18]

We
    do not accept this submission. We agree that the trial judge should not
    have simply adopted by reference counsels lengthy written submissions without
    identifying with more particularity the submissions that he endorsed and the
    basis for his agreement with them. However, when the trial judges reasons
    are read as a whole, it is clear that his evidentiary analysis goes well beyond
    paragraph 368 and consists of an independent assessment of all of the relevant
    trial evidence. In that context, the reference to counsels submissions
    serves no more than to indicate agreement with them, as evidenced by the
    balance of the trial judges reasons.

[19]

The
    appellants submissions concerning the trial judges evidentiary errors
    effectively invite this court to re-examine and re-weigh the evidence. That is
    not our function. We see no error in the trial judges findings that would
    permit us to intervene.

[20]

The
    appellant also seeks leave to appeal the trial judges determination of costs,
    arguing that the trial judge erred in failing to order that all of the
    appellants trial costs be paid from her fathers estate. The appellant also
    argues that the quantum of costs ordered should be reduced.

[21]

We
    disagree. While acknowledging that he had the discretion to order payment of all
    of the appellants costs from her fathers estate, the trial judge determined
    that it would be unfair to do so. The appellant was entirely unsuccessful at
    trial and payment of her costs from the estate would effectively leave the
    respondent with nothing. The trial judge nevertheless exercised his discretion
    to order that a part of the appellants costs be paid from the estate. We see
    no error in the trial judges discretionary decision, which is entitled to
    deference. Further, the appellant has not identified any reviewable error in
    the amount of costs ordered by the trial judge.

[22]

Accordingly,
    the appeal and leave to appeal are dismissed.

[23]

The
    respondent is entitled to her partial indemnity costs in the amount of $15,000.00,
    inclusive of disbursements and applicable taxes.

G.R. Strathy C.J.O.

L.B. Roberts J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Singer v. Nordstrong Equipment Limited, 2018 ONCA
    364

DATE: 20180413

DOCKET: C64472

Feldman and Benotto JJ.A. and Sachs J. (
ad hoc
)

BETWEEN

André Singer

Plaintiff (Appellant/ Respondent by
    way of cross-appeal)

and

Nordstrong Equipment Limited

Defendant (Respondent/ Appellant by
    way of cross-appeal)

Jeff C. Hopkins and Kristen Pennington, for the
    appellant/respondent by way of cross-appeal

Gerald Griffiths, for the respondent/appellant by way of
    cross-appeal

Heard: March 26, 2018

On appeal from the judgment of Justice James F. Diamond
    of the Superior Court of Justice, dated October 6, 2017, with reasons reported
    at 2017 ONSC 5906.

Feldman J.A.:

[1]

The respondent terminated the appellants employment as President and
    General Manager of one of two of its divisions, the East Division, without just
    cause in December 2016. The appellant was 51 years old at the time, and had
    been employed by the respondent for 11 years, 4 years as President. He reported
    to the Chief Financial Officer of the respondents parent company, Canerector
    Inc.

[2]

The appellant brought a motion for summary judgment to determine the
    issues of reasonable notice, loss of bonus for the 2016 year that he had
    worked, loss of bonus during the notice period, and loss of benefits during the
    notice period.

[3]

The motion judge awarded the appellant 17 months salary in lieu of
    reasonable notice, as well as an amount for his bonus for 2016. The motion judge
    denied the appellants claim for his bonus during the 17 month notice period in
    2017 and part of 2018, as well as any amount for the loss of his benefits
    package during the notice period.

[4]

The appellant appeals the dismissal of his claims for his bonus and
    benefits during the 17 month period of reasonable notice. The respondent
    cross-appeals from the award of 17 months reasonable notice, saying it should
    have been between 12 and 15 months, and from the award of a bonus for 2016. It
    will be most convenient to address the two issues on the cross-appeal first.

A.

Issues on the cross-appeal

(1)

Reasonable notice period of 17 months

[5]

The respondent submits that the motion judge erred in principle by
    awarding a period of reasonable notice that is outside the reasonable range for
    an employee in comparable circumstances, and by overemphasizing one of the
Bardal
factors
[1]
,
    the character of the employment, while underemphasizing the other
Bardal
factors, such as length of service and the availability of similar employment.

[6]

The motion judge began his analysis at para. 13 of his reasons by
    reciting all of the
Bardal
factors, and instructing himself to assess
    reasonable notice in a holistic manner, without giving disproportionate
    weight to one factor over another. He was clearly alive to the very error the
    respondent alleges he committed.

[7]

Furthermore, in his analysis, the motion judge cited a passage from
Fisher
    v. Hirtz
, 2016 ONSC 4768, where Perell J. explained that a longer notice
    period is generally justified for older, long term employees who are often at a
    competitive disadvantage in securing new employment. The motion judges reliance
    on
this passage
demonstrates
    that he considered the other
Bardal
factors  age, length of service,
    and availability of similar employment  in determining the appellants
    reasonable notice period.

[8]

The motion judge also referred to the recent decision of Grace J. in
Day
    v. JCB Excavators Ltd.
, 2011 ONSC 6848 as a comparable. In
Day
, where
    a 51 year old regional business managers employment was terminated after over
    14 years, Grace J. set the reasonable notice period at 17 months. The
    respondent objects that in that case, there was evidence of poor prospects in
    the industry for re-employment at the time. However, in this case, there was
    significant evidence of the appellants attempts to mitigate and his inability
    to find a comparable position. This evidence addresses the factor of
    availability of similar employment that the respondent is concerned about.

[9]

The respondent also refers to three other cases from 1988, 2002, and
    2009, where damages based on reasonable notice periods of 14 months, 15 months,
    and 12 months were awarded respectively. It submits that those cases delineate
    the correct range as 12 to 15 months. The same submission was made to the
    motion judge. The motion judge was entitled to reject this submission, to refer
    to the
Day
case as a very recent comparable, and to apply the
Bardal
criteria as he did. I see no error in the approach taken or the result reached
    by the motion judge and no basis to intervene.

(2)

Claim for 2016 bonus

[10]

The
    appellant produced in evidence a document provided to him and other employees
    in 2009 entitled Canerector Inc. Corporate Culture, which describes the bonus
    or profit sharing plan of the parent company. The motion judge considered that
    document, other email correspondence between Canerectors operations manager
    and the appellant, and the appellants past record of receiving bonuses of
    between 3.87% and 6.02% of pre-tax profit, and found at para. 25 that:

While there was some inherent variability in Singers bonus
    payments from year to year, the language used in the Corporate Culture
    document, together with [Canerectors operations managers] responding email of
    February 8, 2013, make it clear that, as Nordstrong Easts President, Singer
    was entitled to a share of the bonus pool created by the earning of a positive
    pre-tax profit (a bonus typically falling within the 25 to 50% range).

[11]

The motion judge awarded the appellant a bonus for 2016 based on 4.634%
    of 2016 pre-tax profit.

[12]

Before the motion judge, the respondent submitted that the appellant
    should receive no bonus, on the basis that it discovered in 2015 that the
    appellant was not a good manager and that they hoped he would improve in 2016
    but he did not, and was therefore not entitled to any bonus. In rejecting this
    submission, the motion judge noted that the appellants termination letter made
    no mention of any concerns regarding his job performance. We note that in oral
    argument on the appeal, counsel advised that the appellant was not told about
    any performance concerns either in 2015 or after.

[13]

The respondent argues on appeal that the motion judge erred by awarding
    the appellant a bonus for the 2016 year because: his division was not profitable
    enough, it was underperforming, he had not created expected efficiency gains, and
    the company had denied other division heads a performance bonus in the past for
    poor performance.

[14]

By this submission, the respondent is essentially attempting to reargue
    the motion. It identifies no error of law or palpable and overriding error of
    fact by the motion judge. There is no basis to interfere with the finding of
    the motion judge that the appellant was entitled to share in the profit pool
    designated for bonuses for the 2016 year that he worked.

B.

Issues on the appeal

(1)

Claim for benefits during the notice period

[15]

The motion judge denied the appellants claim for the loss of his
    benefit package on the basis that the appellant did not prove that he suffered
    a loss. The appellant gave no evidence that he replaced the benefits during the
    notice period.

[16]

The motion judge cited no authority for this approach to the benefits
    issue. However, the law in Ontario was settled by this court in 1991 in
Davidson
    v. Allelix Inc.

(1991), 7 O.R. (3d) 581 (C.A.), where the court
    stated at p. 589:

Allelix cross-appealed against the award of damages for loss of
    benefits proposed by the trial judge relying on a line of British Columbia
    decisions. They held that the loss of benefits from termination of employment
    is limited to losses or expenses actually incurred, the sum of $6,052.97
    referred to above for which Dr. Davidson was entitled to be compensated under
    the benefit coverage: see
Sorel v. Tomenson Saunders Whitehead Ltd.
(1987), 16 C.C.E.L. 223, 39 D.L.R. (4th) 460 (B.C. C.A.),
Wilks v. Moore
    Dry Kiln Co. of Canada
(1981), 32 B.C.L.R. 149 (S.C.), and
McKilligan
    v. Pacific Vocational Institute
(1981), 28 B.C.L.R. 324 (C.A.).

Counsel for Allelix candidly acknowledged that there was
    conflicting jurisprudence on this point. In my opinion the British Columbia
    decisions do not apply in Ontario where the law is settled that a wrongfully
    dismissed employee may claim, in addition to lost salary, the pecuniary value
    of lost benefits flowing from such dismissal. This principle was referred to
    with approval by this court in
Peck v. Levesque Plywood Ltd.
(1979),
    27 O.R. (2d) 108, 105 D.L.R. (3d) 520, where Dubin J.A. said at pp. 113-14
    O.R., pp. 525-26 D.L.R.:

In a successful action for wrongful
    dismissal, an employee is entitled to damages for the breach of his contract of
    employment.

In Batt, Law of Master and Servant,
    5th ed. (1967), at p. 263 the following proposition is enunciated:

. . . in
Savage v. British
    India SS. Co.
, (1930), 46 T.L.R. 294, Wright, J., appears to have given
    the plaintiff twelve months' salary as damages because the plaintiff was
    entitled to twelve months' notice. But clearly the servant's damages ought not
    to be so limited; the master has committed a breach of contract and so all
    damages naturally flowing therefrom ought to be recoverable.

In the case of
Lawson v.
    Dominion Securities Corp
., June 30, 1977 and September 30, 1977,
    unreported, this Court held:

The recovery of lost income is not
    limited to salary. In this case the appellant conceded that pension plan
    benefits should also be included. . . . other income items should be admitted
    including contractual profit-sharing, a share purchase option, and many fringe
    benefits such as a company car, club membership, pension, disability and
    medical plans . . . McGregor on Damages (13th ed.), para. 885 at 595.

[17]

The
    respondent refers to the 2010 decision of the New Brunswick Court of Appeal in
Jean
    v. Pêcheries Roger L. Ltée
, 2010 NBCA 10, 354 N.B.R. (2d) 300 and submits
    that this court should follow that decision. The court there stated at para. 56:

[T]he method of assessing damages
    for wrongful dismissal applied in the past must undergo fine-tuning to accord
    with the principles enunciated in
Fidler v. Sun Life
and
Honda
    Canada v. Keays
. Compensation in lieu of notice must now be calculated in
    accordance with the principles that inform the assessment of all damages for
    breach of contract. The purpose of such damages is to place the aggrieved
    employee in the same position he would have been in but for the breach by the
    employer of the implied term of the contract of employment to give reasonable
    notice. Therefore, courts must focus on the loss sustained by the employee by
    reason of the employers failure to give proper notice instead of what it would
    have cost the employer had the employment continued throughout the notice
    period:
Covered Bridge Recreation Inc. v. Shurman
.

[18]

I would not accept this submission. The argument asserted by the
    respondent and accepted by the motion judge was specifically considered and
    rejected by this court in the
Davidson
decision. If the law were to be
    changed, it would have to be by a five-judge panel of the court, upon the order
    of the Chief Justice.

[19]

The motion judge erred in law by rejecting the appellants claim for
    benefits during the reasonable notice period. The appellant proved on the
    motion that the cost to replace his benefits for one year was $6,676, and is therefore
    entitled to damages of $9,458, the replacement cost of his benefits over the 17
    month notice period.

(2)

Claim for bonus during the notice period

[20]

The
    motion judge rejected the appellants claim to receive an amount to compensate
    him for the loss of his bonus during the reasonable notice period. His
    reasoning is at paras. 41-42:

The purpose of reasonable notice is to provide a terminated
    employee with sufficient time to locate comparable employment.  Historically,
    bonuses were earned and calculated at the conclusion of the defendants
    fiscal/calendar year, and no doubt granted on the basis of an employees
    positive efforts and contributions to Nordstrong Easts business.

Subject to successful mitigation
    efforts, Singers employment with the defendant would have ended in or around
    May 2018.  The purpose of the defendants incentive plan is to maximize efforts
    to generate profits.  As in
Fulmer
[
v. Nordstrong Equipment
    Limited
2017 ONSC 5529], I do not find it to be within Singers reasonable
    expectation to be able to earn a bonus for the 2017 and 2018 fiscal years while
    he searched for alternative comparable employment.

[21]

I
    agree with the appellant that the motion judge erred in law by failing to apply
    the two-part test set out by this court in
Pacquette v. TeraGo Networks
    Inc.
, 2016 ONCA 618, 352 O.A.C. 1, at paras. 30-31 for determining whether
    an employee is entitled to be compensated for the loss of his bonus as part of
    his damages for wrongful dismissal:

1)

Was the bonus an
    integral part of his compensation package, triggering a common law entitlement
    to damages in lieu of bonus?; and

2)

If so, is there any
    language in the bonus plan that would restrict his common law entitlement to
    damages in lieu of a bonus over the notice period?

[22]

Had the motion judge applied the two-part test, based on his analysis
    regarding the bonus owed for the 2016 year, he would have found that the bonus
    was an integral part of the appellants compensation package. Nor is there
    anything in the Canerector Inc. Corporate Culture document that would limit
    that right over the notice period.

[23]

The respondent submits that the appellant would have known that it was
    the companys policy not to pay any bonus to employees after their employment
    was terminated, and that this was justified by the fact that part of the
    purpose of the bonus was to incentivize employees to perform.

[24]

Although that may have been the companys
de facto
approach, it
    was not written into the document that governs the bonus payment scheme.
    Further, any bonus plan will include both an aspect of incentive, as well as an
    aspect of reward for performance, neither of which continue to apply to any
    employee who is no longer working for the employer. Nevertheless, where a bonus
    is considered an integral part of a compensation package and there is nothing
    in the bonus plan that negates entitlement to a bonus during a period of
    reasonable notice, damages for wrongful dismissal include compensation for loss
    of the bonus:
Paquette
,
at paras. 17-18; and
Lin v. Ontario Teachers Pension Plan
, 2016 ONCA
    619, 402 D.L.R. (4th) 325, at paras. 84-86.

[25]

As the motion judge erred in law, his decision on the issue of bonus during
    the notice period will be set aside and the amount claimed by the appellant,
    $166,945, will be awarded for the 17 month notice period. This amount is based
    on the average monthly value of the appellants bonuses from the two years
    preceding the termination of his employment (which were $120,000 for 2015 and
    $115,687 for 2016), pro-rated to the end of the 17 month notice period.

Result

[26]

In the result, I would allow the appeal on the issues raised by the
    appellant and dismiss the cross-appeal. The appellant is entitled to damages
    for loss of his 2016 profit entitlement, for his loss of salary during the 17
    month reasonable notice period awarded by the motion judge, and also for the
    loss of the other components of his employment compensation during the 17 month
    notice period he claims: bonus in the amount of $166,945 and benefits in the
    amount of $9,458.

[27]

I would award the costs of the appeal and cross-appeal to the appellant,
    fixed in the amount of $25,000 inclusive of disbursements and HST. As requested
    by the appellant, I would refer the issue of costs of the motion back to the
    motion judge to award based on the outcome of the appeal and on any offers to
    settle that he determines are appropriate to consider.

Released: K.F. April 13, 2018

K.
    Feldman J.A.

I
    agree. M.L. Benotto J.A.

I
    agree. Sachs J. (ad hoc)

[1]

The
Bardal
factors, which are relevant to
    determining the period of reasonable notice on wrongful dismissal, are derived
    from
Bardal v. Globe & Mail Ltd.
(1960), 24 D.L.R. (2d) 140 (Ont.
    H.C.), at p. 145.


COURT OF APPEAL FOR ONTARIO

CITATION: Sub-Prime Mortgage Corporation v. Cedeno, 2018 ONCA
    408

DATE: 20180430

DOCKET: C64603

Strathy C.J.O., Watt and Epstein JJ.A.

BETWEEN

Sub-Prime Mortgage Corporation

Plaintiff
(Respondent)

and

Juliana Cedeno, Edmund Dickson and Jaskarn Samra

Defendant
(Appellant)

Darrell Paul, for the appellant Jaskarn Samra

Glenn E. Cohen, for the respondent

Heard and released orally: April 26, 2018

On appeal from the order of Justice Francine E. Van Melle
    of the Superior Court of Justice, dated October 24, 2017.

REASONS FOR DECISION

[1]

The appellant, a third mortgagee, moved to set aside a default judgment
    in a foreclosure action brought by the first mortgagee (who also held second
    and fourth mortgages).

[2]

The motion was brought on a timely basis. The only issue before the
    motion judge was whether the appellants defence had any merit.

[3]

In his affidavit and draft statement of defence, the appellant said that
    he had an interest in the property and that there was sufficient value in the
    property to pay his third mortgage after satisfaction of the claims of the
    respondent in relation to the first and second mortgages.

[4]

We agree with the motion judge that this was not a defence. The
    appellant did not dispute the validity of the respondents mortgages. As the
    motion judge noted, the appellant was entitled to file a request to redeem or a
    request for sale. He did neither. He made no request to do so on the motion.

[5]

While we do not disagree with the appellant that the motion judge may
    have incorrectly calculated the amounts owing on the first and second mortgages,
    the error was not material to the outcome. In the absence of a defence and the
    appellants not having requested a sale, there was no basis to set aside the
    default judgment.

[6]

We do not admit the fresh evidence with respect to the subsequent sale
    of the property, as it could not affect the outcome of the appeal.

[7]

The appeal is therefore dismissed with costs to the respondent in the
    amount of $4,500, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.
David Watt J.A.
Gloria Epstein J.A.