COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2018 ONCA 437

DATE: 20180510

DOCKET: C61843

Hoy A.C.J.O.,
    MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Taj Thaine Williams

Appellant

Wayne Cunningham, for the appellant

Rachel Young, for the respondent

Heard: January 25, 2018

On appeal from the dangerous offender designation imposed
    on November 10, 2014 by Justice T.M. Dunnet of the Superior Court of Justice,
    sitting without a jury, with reasons reported at 2014 ONSC 6418.

Rouleau J.A.:

OVERVIEW

[1]

This appeal concerns the admissibility and proper use of police synopses
    in a dangerous offender application under s. 753 of the
Criminal Code
.
    For the reasons that follow, I conclude that while these synopses are generally
    admissible, they must be treated with caution. In this case, the trial judge
    erred in finding that the police synopses in their entirety had been proven
    beyond a reasonable doubt.

[2]

However, as will be further explained, this error had no impact on the
    outcome. The disputed facts from the synopses played virtually no role in the
    sentencing judges finding that the appellant is a dangerous offender. That
    finding was well-supported by the remainder of the record and I would therefore
    dismiss the appeal under s. 759(3)(b) of the
Criminal Code
.

FACTS

[3]

Mr. Williams was found guilty of assault causing bodily harm and theft.
    The offences took place on May 8, 2011. Mr. Williams followed an 18-year-old woman
    into her own apartment building, took her phone, led her into a stairwell,
    chased her down the hall, and bit her on the forehead. He has Hepatitis C and
    exposed her but did not infect her. The appellant committed the offence after
    an evening of drinking and doing crack.

[4]

The Crown applied under s. 753 of the
Criminal Code
to have Mr.
    Williams declared a dangerous offender and sentenced to detention in a
    penitentiary for an indeterminate period of time.

[5]

In support of its application, the Crown filed multiple volumes of
    documentary evidence including Mr. Williams education record, Childrens Aid
    Society (CAS) records, Ministry of Children and Youth Services records,
    Ministry of Community, Safety and Correctional Services records, Correctional
    Service of Canada (CSC) records and program descriptions, medical records,
    psychological and psychiatric assessments, pre-sentence reports and criminal
    record. The details of the appellants criminal record were set out in
    transcripts of guilty pleas and police synopses, which were included in the records
    tendered by the Crown.

[6]

In addition, Dr. Philip Klassen carried out an assessment under s. 752.1
    of the
Criminal Code
, during which he reviewed Mr. Williams criminal
    record with him. Dr. Klassen wrote an expert report and testified at the
    hearing as an expert in forensic psychiatry including risk assessment.

(a)

Criminal Record

[7]

At the time of sentencing, Mr. Williams was 32 years old and his
    criminal record contained 33 convictions spanning a 13-year period. In her reasons,
    the sentencing judge summarized the various offences committed by Mr. Williams
    prior to the predicate offence. Her description of the offences drew from the
    transcripts of guilty pleas, police synopses and the report of Dr. Klassens
    discussions with Mr. Williams. Focussing primarily on the details of the convictions
    for assault, Mr. Williams convictions can be summarized as follows:

1.

Assault  March 16, 1998 (Youth Court)

[8]

When Mr. Williams was fifteen, he was convicted of assault. The police
    synopsis indicates that Mr. Williams put a fellow student in a headlock while
    another student assaulted the victim. The victims eye was swollen shut and he was
    bleeding heavily. Mr. Williams disputes this, claiming that he warned the
    victim that another student intended to assault him and told him to leave. When
    the other student arrived, Mr. Williams pushed the victim. He was sentenced to
    one year of probation.

2.

Assault  June 30, 1999 (Youth Court)

[9]

The police synopsis indicates that Mr. Williams head-butted the victim,
    another student. The victim sustained a cut to his lip. In Mr. Williams
    version, his head accidentally nudged the victim. He was sentenced to 5 days
    in open custody and probation for 18 months.

3.

Robbery  July 6, 1999 (Youth Court)

[10]

The
    only information on this offence comes from a note from CSC records. The note
    states that Mr. Williams was with a group of males when they decided to rob an
    ice cream vendor. Mr. Williams maintains that he simply ran with a bag of
    cigarettes stolen by his friend.

4.

Assault Causing Bodily Harm  July 28, 1999 (Youth Court)

[11]

The
    police synopsis indicates that the victim was a woman whom Mr. Williams, coming
    at her from behind a hedge, punched numerous times. Mr. Williams admitted to
    Dr. Klassen that he assaulted the victim, but said he did so because she called
    him a nigger. He served 43 days in pre-sentence custody, and received a
    resulting sentence of four months in secure custody and probation for one year.

5.

Possession of Property Obtained by Crime  January 10, 2002

[12]

The
    police synopsis states that Mr. Williams was one of five individuals found in
    possession of merchandise stolen from a shopping mall.

6.

Theft Under $5000 and Fail to Comply with Probation  July 2,
    2002

[13]

There
    was no information on this offence and Mr. Williams did not remember it.

7.

Assault Causing Bodily Harm and Fail to Comply with Probation
    August 19, 2002

[14]

The
    police synopsis states that Mr. Williams intervened in a fight between a
    co-accused and the victim, who were hitting each other outside a fast food
    restaurant. Mr. Williams hit the victim in the head with a rock. He and the
    co-accused then struck the victim with a closed fist several times. The victim
    suffered a broken nose and a laceration above his eye requiring stitches. Mr.
    Williams admitted to striking the victim, but did not remember using a rock. He
    received a thirty day intermittent sentence and probation for one year.

8.

Public Mischief, Fail to Comply with Recognizance, Fail to Comply
    with Probation, Assault with Intent to Resist Arrest, Uttering Threats  May
    16, 2003

[15]

Based
    on the transcript of Mr. Williams guilty pleas, the sentencing judge found
    that Mr. Williams left a phone message for the victim in which he stated that
    he would shoot her in the face. This was admitted to Dr. Klassen. On another
    occasion, he punched the head of a police officer who was trying to arrest him.
    Mr. Williams stated that he was being wrongly arrested, and pulled his arm away
    from the arresting officer. He did not recall punching the officer. After 31
    days of pre-sentence custody, he received an intermittent sentence of 90 days
    and probation for 18 months.

9.

Assault  August 26, 2003

[16]

The
    police synopsis states that Mr. Williams grabbed an 18-year-old female high
    school student in a bear hug and pulled her toward the backyard of a
    townhouse unit, saying Come with me. I want to show you something. He
    released her when she promised to return that way after school. The transcript
    of the guilty plea indicates that Mr. Williams admitted that he assaulted the
    complainant by grabbing both of her arms from behind. He did not admit, as
    proposed by the Crown, that he attempted to drag the complainant. Mr. Williams
    told Dr. Klassen that the victim had thrown rocks at his house and walked over
    his garden, which she had also done on other occasions in the past. After 58
    days of pre-sentence custody, he received a suspended sentence and probation
    for one year.

10.

Theft, Uttering Threats x 3, Fail to Comply with Probation, Fail
    to Comply with Recognizance, Criminal Harassment, Robbery, Assault Causing
    Bodily Harm, Attempt Theft, Mischief x 3, Fail to Comply with Probation
    October 25, 2004

[17]

According
    to the transcript of the guilty plea, Mr. Williams telephoned the current
    boyfriend of his former girlfriend on three occasions to threaten him. The
    threats included putting a gun in his face and shooting him. Mr. Williams admitted
    to these events and stated that he was sorry for what he had done.

[18]

On
    another occasion, Mr. Williams admitted to having head-butted a man because he
    feared he was going to be rushed by a group of persons.

[19]

The
    other offences are also summarized. In total Mr. Williams was sentenced to
    three years in the penitentiary and three years of probation.

11.

Robbery × 2, Unlawfully in Dwelling House  February 22, 2007

[20]

On
    the first robbery charge, the transcript of the guilty plea states that Mr.
    Williams grabbed a womans purse after she made a withdrawal at an ATM. The
    other robbery was also purse snatching. After this last robbery, Mr. Williams forced
    entry into an apartment and hid in a closet.

12.

Possession of a Schedule II Substance  September 25, 2008

[21]

CSC
    records show that Mr. Williams was found in possession of three grams of
    marihuana by correctional officers.

13.

Assault Causing Bodily Harm (Predicate Offence) and Theft  June
    25, 2013

[22]

Mr.
    Williams was convicted following a trial by judge alone for the predicate
    offence of assault causing bodily harm, and for theft. The trial judge found
    that Mr. Williams bit the victim, an eighteen-year-old woman he did not know,
    in the forehead after he took her cellphone.

(b)

Assessment of Mr. Williams while in custody

[23]

The
    sentencing judge also considered Mr. Williams provincial correctional records
    that described a troubled childhood marked by violence and substance abuse.
    They indicated that he had anger issues, was known to lie and that he assaulted
    another inmate while incarcerated in 2010.

[24]

The
    CSC records describe Mr. Williams as minimizing the severity of his actions and
    posing a high risk of recidivism. Counselling for substance addiction was
    recommended, but it appears that this did not materialize. For the most part, Mr.
    Williams did not cooperate in the anger management and cognitive skills programming
    offered to him.  Throughout, he continued to minimize his actions.

[25]

A
    psychological risk assessment report from the Millhaven Assessment Unit, dated
    December 29, 2004, reported as follows under the heading Clinical
    Impressions:

Mr. [Williams] glib affect, his
    off-handed comments about being capable of doing more to defend himself
    during a confrontation, and his lengthy history of assaults and harassment
    charges are indicative of an evasive, manipulative style, that is compounded by
    a lack of impulse control. Mr. [Williams] expression of remorse for his
    victims was superficial and not a reflection of shame or desire to change
    himself.

[26]

A
    psychological assessment report prepared at the Kingston Penitentiary on
    November 16, 2007 states:

Mr. [Williams] conviction for assault cause bodily harm from
    1999 and his assault conviction from 2003 both involve what appear to be young
    females as victims being forcefully taken to relatively secluded areas and
    subsequently physically assaulted. It is uncertain what may have transpired had
    the victims not resisted as strongly as they did. It does not appear that
    robbery was the purpose of these assaults, as there is no mention of this in
    the official version of the offences. This leaves limited options as to what he
    may have been trying to accomplish.

[27]

When
    Mr. Williams was at the Keele Community Correctional Center in September 2009,
    he was interviewed by a psychiatrist, Alina Iosif. She was of the opinion that
    Mr. Williams history and presentations were consistent with a diagnosis of
    significant psychopathy and antisocial personality disorder. He displayed no
    remorse, was glib, appeared manipulative and lacked empathy and insight into
    his personality characteristics and behaviour. She was of the view that his
    risk to reoffend, and in particular to become violent or aggressive, was very
    high.

[28]

On
    November 25, 2009, a psychologist, Rafael Bergamasco, described Mr. Williams
    risk level as follows:

Risk for reactive/irritable
    violence (mostly emotional, mostly impulsive, follows a need to express a
    state/ desire, usually triggered by a perceived insult, disproportionate to
    external trigger). High, including when dealing with his father and in intimate
    relationships.

(c)

Report of Dr. Klassen

[29]

Central
    to the sentencing judges decision was the report and testimony of Dr. Klassen.
    He concluded that Mr. Williams had severe personality disorder and met DSM-5
    criteria for antisocial personality disorder with accompanying narcissistic
    personality traits. In Dr. Klassens opinion alcohol and cocaine use disorders
    were also present.

[30]

As
    for risk assessment, Dr. Klassen was of the view that testing showed
    consistently high results for reoffending and violent recidivism. The results
    were summarized by the sentencing judge as follows:

When Dr. Klassen applied the Psychopathy Checklist-Revised
    (PCL-R), his score for [Mr. Williams] was 35 out of a possible 40 points. That
    score corresponds to the 98
th
percentile of a referenced sample of
    North American offenders. A score of 35 predicts significant difficulties with
    both community supervision and treatment responsiveness.

Dr. Klassens application of the VRAG yielded a score of 29,
    which placed [Mr. Williams] at or above the 99
th
percentile of
    randomly selected members of that group. According to Dr. Klassen, 100% of
    individuals with similar scores committed further violent offences over ten
    years of opportunity in the community. Dr. Klassen testified that this figure
    may represent some overestimate of risk, because it is based on older
    statistics, and recidivism rates are generally lower today. This instrument has
    also been shown to predict domestic violence.

Finally, Dr. Klassen assessed [Mr.
    Williams] with the Historical Risk Management (HCR-20) test. [Mr. Williams]
    scored 33 points out of a possible 40. According to Dr. Klassen,
    similarly-scoring individuals from a CSC sample reoffended at a rate of 93%
    over approximately 7.5 years in the community. He testified that the HCR-20
    score may also overestimate the risk of reoffending, because base rates of
    violent behaviour were higher when the models were created.

[31]

These
    consistently high scores led Dr. Klassen to conclude that there was a high
    likelihood of Mr. Williams committing multiple offences in the future, and a
    probability of violent re-offence. As a result, Dr. Klassen believed that the
    test for a dangerous offender finding may be met.

[32]

As
    for risk management, Dr. Klassen opined that any violent reoffending would manifest
    in confrontational acquisitive criminality, opportunistic approaches with an adult
    (and perhaps stranger) female, or in an intimate relationship. Any release in
    the foreseeable future would pose a very high risk of recidivism. He opined
    that from a purely psychiatric perspective there was unlikely to be an
    effective cure for Mr. Williams behaviour and that there is no psychiatric
    evidence of reasonable possibility of eventual control of the risk in the
    community.

(d)

The sentencing judges decision

[33]

Relying
    on
R. v. Judge
, 2013 ONSC 6803, [2013] O.J. No. 5102, the sentencing
    judge was satisfied that the CAS, CSC and institutional records, which included
    police synopses, were admissible because they were prepared contemporaneously
    by professionals carrying out important and responsible public duties. The sentencing
    judge rejected Mr. Williams submission that all police synopses are
    unreliable. Rather, she was of the view that they should be approached with
    caution and assessed on a case-by-case basis.

[34]

The
    sentencing judge noted that, while Mr. Williams did not dispute any of his
    convictions, he disagreed with certain parts of the police synopses that
    described why  and, to some extent, how some of the offences transpired. She
    considered the synopses in the context of the other evidence led at the
    hearing, which revealed Mr. Williams history of lying and minimizing his
    responsibility for the offences he committed and that many of the offences were
    committed while he was under the influence of alcohol and cocaine. In the
    sentencing judges view, Mr. Williams account of the circumstances of the
    various convictions, as conveyed to Dr. Klassen, defied belief. In particular,
    the sentences imposed for the convictions suggested that the court could not
    have accepted his version of events. Weighing all of this, she then concluded
    as follows:

Accordingly, I am satisfied that
    the facts in the police synopses have been proven beyond a reasonable doubt and
    Dr. Klassens opinion can be given considerable weight.

[35]

The
    sentencing judge then proceeded to consider whether the Crowns evidence demonstrated
    a pattern of behaviour as defined in s. 753(1)(a).  She noted that while the
    pattern of behaviour that includes the predicate offence need not be the same
    in every detail, it must involve enough of the same elements of unrestrained
    dangerous conduct to be able to predict that the offender will likely offend in
    the same way in the future:
R. v. Hogg
, 2011 ONCA 840, 287 O.A.C. 82
,
at para. 40. She also observed that [s]imilarity can be found in the
    types of offences or in their circumstances:
R. v. Akbar
, 2014 ONSC
    3700, [2014] O.J. No. 2961, at para. 301.

[36]

The
    sentencing judge found that a pattern of repetitive behaviour within the
    meaning of s. 753(1)(a)(i) and persistent aggressive behaviour within the
    meaning of s. 753(1)(a)(ii) had been proven beyond a reasonable doubt. She
    noted that the predicate offence was Mr. Williams fourth conviction for
    assault causing bodily harm where all victims were strangers to Mr. Williams. Three
    of the four women assaulted were in high school. Another common element was
    that Mr. Williams targets the head: headlock in 1998, head-butt in 1999, hitting
    the victim in the head with a rock in 2002, threatening to shoot someone in the
    face in 2003, punching a police officers head in 2003, threatening to point a
    gun at someones face in 2004, head-butt in 2004 and biting the victims face
    in the predicate offence in 2011.

[37]

The
    sentencing judge went on to find that, within the meaning of s. 753(1)(a)(i), there
    was a likelihood that Mr. Williams would cause death, injury, or severe
    psychological damage to other persons through his failure in the future to
    restrain his behaviour. This conclusion was based on Dr. Klassens evidence
    that there was a high risk of violent recidivism, as well as Mr. Williams
    criminal history, failure to abide by court orders, minimization of his
    offending behaviour and lack of interest in treatment or work. The sentencing
    judge also found that Mr. Williams is substantially indifferent to the
    reasonably foreseeable consequences of his actions on others, meeting the
    requirements of s. 753(1)(a)(ii).

[38]

As
    a result, the sentencing judge concluded that Mr. Williams constitutes a threat
    to the life, safety or physical or mental well-being of other persons under s.
    753(1)(a). The dangerousness criteria were therefore satisfied and Mr. Williams
    was designated a dangerous offender.

[39]

The
    sentencing judge then turned to the issue of the appropriate sentence. Pursuant
    to s. 753(4.1), the court shall sentence a dangerous offender to indeterminate
    detention in a penitentiary, unless there is a reasonable expectation that a
    lesser sentence will adequately protect the public against the commission by
    the offender of a murder or serious personal injury offence.

[40]

The
    sentencing judge concluded that any release to the community in the foreseeable
    future would pose a very high risk of recidivism. In the absence of psychiatric
    evidence of possible control of this risk in the community, a determinate
    sentence would not adequately protect the public. She therefore imposed an
    indeterminate sentence for the offence of assault causing bodily harm. For the
    offence of theft, she sentenced Mr. Williams to six months concurrent.

ISSUES

[41]

There
    are five issues raised on appeal:

1.

Did the
    sentencing judge err in admitting the police synopses?

2.

Did the
    sentencing judge err in finding that the facts contained in the synopses were
    proven beyond a reasonable doubt?

3.

Did the
    sentencing judges reliance on the disputed facts contained in the synopses
    taint the dangerous offender finding?

4.

Should fresh
    evidence be admitted?

5.

What is the
    appropriate remedy?

ANALYSIS

[42]

In
    instances such as the present case, the Crown will seek to admit and rely upon
    police synopses to establish the factual basis of prior convictions in support
    of a dangerous offender application. This is often because transcripts of those
    prior trials, pleas and sentencing hearings may no longer be available or do
    not contain sufficient detail to permit a proper analysis of the offenders
    conduct. However, police synopses are often prepared at the time of arrest, or
    in the early stages of a criminal prosecution. A fuller appreciation of the
    facts often emerges later, such that the facts set out in the synopses will
    often diverge from the facts proven at trial or admitted on a guilty plea:

R. v. Gibson
, 2012 ONSC 5527, [2012] O.J. No. 4612 (admissibility
    ruling), at para. 8;
R. v. Gibson
, 2013 ONSC 589, [2013] O.J. No. 490 (dangerous
    offender designation), at para. 32;
R. v. Keizs
, 2013 ONSC 4322,

[2013] O.J. No. 3572, at para. 41, affd 2015 ONCA
    905, 342 O.A.C. 79
.

[43]

Mr.
    Williams argues that it was an error for the sentencing judge to have admitted
    the various police synopses, and that the sentencing judge further erred in
    finding their contents to be proven beyond a reasonable doubt. Without the
    synopses, which were relied upon by the sentencing judge in identifying the
    requisite pattern of behaviour under s. 753(1)(a) and by Dr. Klassen in writing
    his report, the sentencing judge could not have concluded that the statutory
    elements of dangerousness had been satisfied.

[44]

Mr.
    Williams relies on
R. v. J.K.L.
, 2012 ONCA 245, 290 O.A.C. 207, at
    paras. 88-94, leave to appeal refused, [2013] S.C.C.A. No. 116, which was not
    placed before the sentencing judge by trial counsel. In
J.K.L.
, this
    court expressed the view that it is difficult to conclude that a Crown synopsis,
    standing alone, is an accurate reflection of events. The court noted that the
    sources of information contained in the synopsis may not be specified and an
    assessment of the reliability and trustworthiness of the information contained
    within may be difficult or impossible.

[45]

I
    agree that there are issues respecting the reliability of information contained
    in synopses, be they labelled as police or Crown synopses. However, I do not
    agree with Mr. Williams submission that synopses are wholly inadmissible at a
    sentencing hearing. As further explained below, the court must take a generous
    approach to admissibility in a dangerous offender proceeding. However, once the
    evidence has been admitted, the court must then grapple with the appropriate weight
    to be accorded to the information contained within the synopses. In the present
    case, the sentencing judge properly admitted the police synopses, but erred in
    finding that their contents had been proven beyond a reasonable doubt. However,
    I conclude that there is no reasonable possibility that this error had any impact
    on the outcome. I would therefore dismiss the appeal.

1.

Did
    the sentencing judge err in admitting the police synopses?

[46]

In
    my view, the sentencing judge correctly admitted the police synopses tendered
    in the dangerous offender proceeding.

[47]

It
    is well established that the strict rules of evidence applicable at trial do
    not govern sentencing proceedings. Once guilt has been established beyond a reasonable
    doubt, the task of the sentencing judge is to tailor a sentence that is
    appropriate to the particular circumstances of each offender. For that reason,
    the sentencing judge must have the fullest possible information concerning the
    background of the [offender]:
R. v. Gardiner
, [1982] 2 S.C.R. 368
, [1982] S.C.J. No.
    71, at p. 414.

[48]

A
    dangerous offender proceeding is part of the sentencing process and is governed
    by the same sentencing principles, objectives and evidentiary rules:
R. v.
    Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 53;
R. v.
    Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 23;
R. v. Jones
, [1994] 2 S.C.R. 229
,
[1994]

S.C.J. No. 42, at pp. 279, 294;
R. v. Ziegler
, 2012 BCCA 353,
    [2012] B.C.J. No. 1755, at para. 7, leave to appeal refused, [2014] S.C.C.A.
    No. 491. As explained by Gonthier J. in
Jones
, at p. 290, the
    importance of the sentencing judge having access to the fullest possible
    information about the offender is heightened in the context of a dangerous
    offender application:

In the case of dangerous offender proceedings, it is all the
    more important that the court be given access to the widest possible range of
    information in order to determine whether there is a serious risk to public
    safety. If there is, the dangerous offender sentencing allows the justice
    system to more precisely tailor the actual time served by the offender to the
    threat that he poses to society. The overriding aim is not the punishment of
    the offender but the prevention of future violence through the imposition of an
    indeterminate sentence.

[49]

As
    with any sentencing hearing, hearsay evidence is admissible so long as it is
    found to be credible and trustworthy:
Gardiner
, at p. 414. This
    common law principle is codified in s. 723(5) of the
Criminal Code
.
    Character evidence is also specifically admissible in a dangerous offender proceeding
    pursuant to s. 757 of the
Criminal Code
.

[50]

I
    do not, as suggested by Mr. Williams, read
J.K.L.
as suggesting that
    police synopses are wholly inadmissible. Rather, in the passage quoted by Mr.
    Williams, the court in
J.K.L.
highlights the reliability threshold
    that evidence must meet in order to be relied upon, and the concerns that arise
    in this regard due to the nature of police synopses. I agree with those
    concerns and address them further below.

[51]

In
Gibson
(admissibility ruling)
,
    the sentencing judge admitted CAS and correctional records in an advance
    admissibility ruling prior to a dangerous offender hearing. He was satisfied
    that the records, which included police synopses, met the credible and
    trustworthy threshold. For the same reasons, I am satisfied that it was
    appropriate for the sentencing judge to admit the police synopses.

2.

Did
    the sentencing judge err in finding that the facts contained in the police
    synopses were proven beyond a reasonable doubt?

[52]

In
Gibson
(admissibility ruling), the sentencing judge cautioned,
    however, that portions of certain records, such as the police synopses
    contained in the correctional records, may be less reliable. For that reason,
    when the admissible evidence is subsequently considered on the merits, the court
    must carefully consider the weight to be accorded to those portions of the
    records.

[53]

Despite
    the broad approach to admissibility at the sentencing stage, it is not the case
    that the offender is deprived of all protections:
Jones
, at p. 292. The
    Crown must prove disputed aggravating facts beyond a reasonable doubt:
Jones
,
    at p. 292, quoting
Gardiner
, at p. 414; see also s. 724(3)(e) of the
Criminal
    Code
. The corollary to this principle in a dangerous offender proceeding
    is that the Crown must prove the statutory elements of dangerousness beyond a
    reasonable doubt: Joseph A. Neuberger,
Assessing Dangerousness: Guide to
    the Dangerous Offender Application Process
, loose-leaf
(Toronto: Thomson Reuters Canada, 2017), at
    pp. 6-5 to 6-6;
Boutilier
, at para. 36, n. 1;
R. v. Jackson
(1981)
, 61 C.C.C. (2d) 540 (N.S.C.A.),
    at p. 544, leave to appeal refused, [1982] S.C.C.A. No. 423;
Ziegler
, at
    para. 6.

[54]

As
    described above, the sentencing judge accepted the entire contents of the
    police synopses as proven beyond a reasonable doubt. In my view, this was an
    error. The sentencing judge ought not to have treated this as an all or nothing
    decision. The synopses were properly admitted but the contents had to be
    considered carefully before being relied upon. Some basic facts set out in the
    synopses can be used for the purposes of establishing details such as dates and
    ages:
Gibson
(admissibility ruling), at para. 8;
Gibson
(dangerous offender designation), at para. 34. Other facts, where support can
    be found in other parts of the record, can likewise be relied upon:
Gibson
(dangerous offender designation), at para. 34. This does not, however, lead to
    the conclusion that the entire contents of the document can be taken as proven
    beyond a reasonable doubt.

[55]

Due
    to the evidentiary frailties inherent in the nature of a police synopsis,
    caution is required when the sentencing judge is considering whether the
    contents of those records can, along with the rest of the record, provide the
    basis for a finding that the statutory elements of dangerousness have been
    proven beyond a reasonable doubt. The incidents set out in the synopses must be
    considered in light of all of the evidence led at the hearing. Certain parts of
    a synopsis may find support and confirmation, either directly or by reasonable
    inference, in other parts of the record. If so, it is open to the sentencing
    judge to rely on those incidents as evidence in support of a finding that the
    statutory elements of dangerousness, such as the requisite pattern of behaviour,
    are made out.

[56]

To
    provide one example, the police synopsis of Mr. Williams 1999 assault states
    that Mr. Williams head-butted the complainant. The incident resulted in a youth
    court conviction and a sentence of five days in open custody and 18 months
    probation was imposed. In his discussions with Dr. Klassen, Mr. Williams
    admitted that his head nudged the complainants face but he maintained that
    this was accidental. These pieces of information, together, allowed the
    sentencing judge to reasonably infer that the police synopsis correctly
    described the offence as involving Mr. Williams head-butting the complainant. As
    such, this portion of the synopsis was properly considered by the sentencing
    judge in assessing whether a pattern of behaviour was established.

3.

Did the sentencing judges reliance on the disputed facts contained in
    the synopses taint the dangerous offender finding?

[57]

As
    I will explain, however, the error committed by the sentencing judge in
    concluding that the entirety of the police synopses had been proven beyond a reasonable
    doubt did not seriously undermine Dr. Klassens opinion or the sentencing judges
    finding that Mr. Williams was a dangerous offender. This is because unsupported
    statements contained in the police synopsis played virtually no role in Dr.
    Klassens and the sentencing judges reasoning.

i.

Dr. Klassens opinion

[58]

Mr.
    Williams argues that the sentencing judges error in her treatment of the
    police synopses infected her assessment of the weight to be given to Dr.
    Klassens opinion. As a result, it cannot be relied on in support of the dangerous
    offender finding.

[59]

I
    disagree. In his testimony at the hearing, Dr. Klassen acknowledged that in
    preparing his report he considered information contained in the police synopses
    and assumed that there was no significant difference between what was contained
    therein and what was agreed to in court at the time the convictions were
    entered. He explained, however, that he proceeded on the basis that the judges
    reasons or the transcript of the plea, if available, trumped what might be
    contained in the synopsis.

[60]

Dr.
    Klassen also considered the information he received from Mr. Williams concerning
    each offence. In his report, Dr. Klassen recites Mr. Williams version of the
    events underlying each conviction. Where Mr. Williams explanation of the
    events minimized the offences to the point that the conduct would not be viewed
    as criminal, Dr. Klassen discounted Mr. Williams description because it could
    not have resulted in the conviction that was entered.

[61]

Mr.
    Williams only explicitly raised the issue of the admissibility and reliability
    of the facts contained in the police synopses the evening before the dangerous
    offender hearing began. Dr. Klassens report had already been finalized and
    could not be changed. The Crown asked Dr. Klassen during his evidence in chief to
    consider what the impact on his opinion would be if the disputed facts
    contained in the police synopses (the Disputed Facts) were disregarded. Dr.
    Klassen identified where in his report the Disputed Facts were taken into
    account. He then explained that, even without regard to the Disputed Facts, his
    opinion as to dangerousness would not change.

[62]

Dr.
    Klassen was also asked to consider whether Mr. Williams scores on the various actuarial
    risk assessment instruments would be significantly different if the Disputed
    Facts were disregarded. He opined that this would not have a significant impact
    on his scoring. He explained that the Disputed Facts in the police synopses that
    were not substantially confirmed by other evidence had only minor significance.

[63]

As
    a result, the record fully supports the sentencing judges conclusion that Dr.
    Klassens opinion warranted considerable weight and this conclusion is
    unaffected by the error in how she treated the police synopses.

ii.

Pattern of behaviour

[64]

Mr.
    Williams argues that even if the police synopses were admissible and portions
    of these could be relied on by the sentencing judge, the sentencing judges
    reliance on the Disputed Facts tainted her reasoning and, quite apart from the
    impact on Dr. Klassens opinion, materially contributed to the dangerous
    offender finding.

[65]

As
    explained earlier, I agree with Mr. Williams that the sentencing judge
    committed a legal error in finding that the police synopses in their entirety,
    including the Disputed Facts, were proven beyond a reasonable doubt. I also
    agree that because of this error, some use was made by the sentencing judge of
    the Disputed Facts in concluding that a pattern existed. However, I do not
    agree that the use she made of these Disputed Facts had a material impact. As
    will be further explained, these errors played only a minor role in her
    reasoning process. I have concluded that the error was harmless in that it occasioned
    no substantial wrong or miscarriage of justice. There is no reasonable
    possibility that the verdict would have been any different had the error of law
    not been made:
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at
    para. 24;
Johnson
, at para. 49.

[66]

Mr.
    Williams was found to be a dangerous offender pursuant to s. 753(1)(a), which provides
    as follows:

753(1)
On application made under this
    Part after an assessment report is filed under subsection 752.1(2), the court
    shall find the offender to be a dangerous offender if it is satisfied

(a)
that the offence for which the offender has been convicted is a
    serious personal injury offence described in paragraph (a) of the definition of
    that expression in section 752 and the offender constitutes a threat to the
    life, safety or physical or mental well-being of other persons on the basis of
    evidence establishing

(i)
a pattern of repetitive behaviour by the offender, of which the
    offence for which he or she has been convicted forms a part, showing a failure
    to restrain his or her behaviour and a likelihood of causing death or injury to
    other persons, or inflicting severe psychological damage on other persons,
    through failure in the future to restrain his or her behaviour,

(ii)
a pattern of persistent aggressive behaviour by the offender, of which
    the offence for which he or she has been convicted forms a part, showing a
    substantial degree of indifference on the part of the offender respecting the
    reasonably foreseeable consequences to other persons of his or her behaviour,
    or

(iii)
any behaviour by the offender, associated
    with the offence for which he or she has been convicted, that is of such a
    brutal nature as to compel the conclusion that the offenders behaviour in the
    future is unlikely to be inhibited by normal standards of behavioural restraint;
    or

[67]

To
    obtain a designation of dangerousness pursuant to this section, the Crown must
    prove two elements. First, the Crown must prove that the predicate offence is a
    serious personal injury offence. This criterion is an objective one. There is
    no dispute that the predicate offence committed by Mr. Williams is a serious
    personal injury offence.

[68]

The
    second element the Crown must establish is that the offender represents a
    threat to the life, safety or physical or mental well-being of other persons.
    The requisite threat must be found on the basis of evidence establishing beyond
    a reasonable doubt the presence of one of three violent patterns of conduct
    listed in s. 753(1)(a)(i)-(iii). In the present case the sentencing judge found
    that the Crown had established that the pattern of conduct listed in both ss.
    (i) and (ii) had been established.

[69]

The
    sentencing judge noted three similarities between the offences on Mr. Williams
    criminal record: three of the four victims of assault causing bodily harm were
    young women in high school, all four were strangers to Mr. Williams, and, more
    generally, Mr. Williams targeted the head. Mr. Williams argues that these three
    similarities were based in large measure on Disputed Facts and on other errors
    committed in the sentencing judges assessment of the evidence.

[70]

Because
    of these errors, Mr. Williams argues that the sentencing judges dangerous
    offender finding is wrong or, at a minimum, unsafe, and that a new sentencing
    hearing is required.

[71]

I
    disagree. First, I do not accept that the sentencing judges finding of the requisite
    pattern rests exclusively on the three similarities listed, nor that an error
    in her findings in that regard would, as suggested by the appellant,
    necessarily be fatal. Although the sentencing judge explicitly enumerated three
    specific similarities between the offences, her finding of the requisite pattern
    was properly made and ought to be assessed taking into account the totality of
    the record. That record includes the overall number and violent nature of Mr.
    Williams convictions for assaults and threats, together with his reactive
    anger and record of impulsive violence, and Dr. Klassens opinion that he posed
    a high risk of violent recidivism.

[72]

However,
    given that I have concluded that the three points of commonality identified by
    the sentencing judge are made out, even without considering the Disputed Facts
    taken from the police synopses, I need not pursue this point further. I turn
    now to the three similarities and deal with each in turn.

(a)

Did Mr. Williams target the head of his victims?

[73]

The
    sentencing judge found that a common element of Mr. Williams assaultive and
    threatening behaviour is that he targets the victims head. The sentencing
    judge noted this and then listed eight examples drawn from the various records
    of Mr. Williams convictions.

[74]

Mr.
    Williams submits that if the Disputed Facts are disregarded, four of the eight
    examples cited by the sentencing judge cannot be relied upon as contributing to
    the pattern of targeting the head: the 1998 and 1999 simple assaults, the 2002
    assault causing bodily harm and the 2003 uttering threat.

[75]

The
    Crown acknowledges that in one instance, the 1998 simple assault, the trial
    judges finding that the assault involved Mr. Williams putting the victim in a
    headlock cannot be supported without reference to the Disputed Facts. It was
    drawn solely from the police synopsis and was not corroborated elsewhere in the
    record, nor was it admitted by Mr. Williams. I agree, however, with the Crowns
    submission that the other three examples that Mr. Williams challenges are
    supported by the record even without reference to the Disputed Facts.

[76]

With
    respect to the 1999 assault, Mr. Williams admitted to Dr. Klassen that his head
    contacted the victims face. As I have explained earlier, it was open to the
    sentencing judge to rely on this admission, together with the fact of Mr.
    Williams conviction and the severity of the sentence imposed  5 days open
    custody and 18 months probation for a youth conviction  to reject Mr.
    Williams statement that the head contact was accidental and to then conclude
    that the assault for which he was convicted involved the victims head.

[77]

As
    for the 2002 assault causing bodily harm, the police synopsis referred to Mr.
    Williams hitting the victims head with a rock. Mr. Williams told Dr. Klassen
    that he recalled hitting the victim. He did not deny targeting the head, but said
    that the victim fell and hit his head. He could not recall using a rock. However,
    the offence itself was admitted and Mr. Williams admission nevertheless refers
    to the victims head. Mr. Williams history of minimizing his offences is
    well-documented and this explanation could be read as an attempt to explain
    away the victims injuries, namely, a broken nose and laceration above his eye
    that required stitches. It was reasonable for the sentencing judge to infer
    that, whether or not a rock was used, Mr. Williams caused injuries to the
    victims head.

[78]

The
    final challenged incident is the 2003 threat to shoot the victim in the face.
    Mr. Williams acknowledged the threat to shoot, but submits that the fact that
    the head was targeted in the threat came solely from the police synopsis. That
    is not the case. As was pointed out by the Crown, Mr. Williams lawyer at the
    time of the guilty plea admitted the facts put forward by the Crown. These
    facts included a phone message saying Ill shoot you right in the fucking
    face. I will merc you with a 35. Mr. Williams acknowledged the merc
    statement to Dr. Klassen.

[79]

In
    fact, there is an additional instance of targeting the head that was not listed
    by the sentencing judge. Mr. Williams lawyer at the above-noted 2003 guilty
    plea also admitted to a separate phone call the following day, during which Mr.
    Williams told the same complainant over the phone that he would kick her in
    the fucking head.

[80]

As
    a result, seven of the eight examples given by the sentencing judge of Mr.
    Williams targeting the head are supported by the record without reliance on the
    Disputed Facts.

(b)

Were the victims of the assaults causing bodily harm strangers to Mr.
    Williams?

[81]

The
    sentencing judge stated that another common feature was that all four of the assaults
    causing bodily harm were committed against strangers. Mr. Williams argues that
    in his conversation with Dr. Klassen, he denied that two of the victims were in
    fact strangers. Mr. Williams explained that he had previously seen the victim
    of the 1999 assault causing bodily harm on the bus. He acknowledged, however,
    that they had never spoken. The second case referenced by Mr. Williams is the
    victim of the 2003 simple assault. I note first that this is not one of the
    assault causing bodily harm convictions referred to by the sentencing judge. In
    any event, even if it were one of the four referenced by the sentencing judge, it
    was not unreasonable for the sentencing judge to infer, on either account of
    the facts, that Mr. Williams did not have any real prior relationship with the
    victim. Mr. Williams told Dr. Klassen the victim went to his high school, and
    that he had likely spoken with her briefly, previously. The transcript of the
    guilty plea indicates that the Crown stated that they had no prior relationship
    but acknowledged that they had seen each other prior to the incident. Counsel
    for Mr. Williams stated that they knew each other because they went to the same
    school and walked home not together, but along the same route.

[82]

The
    qualifications put forward by Mr. Williams, even if accepted, do not detract in
    any significant way from the underlying point made by the sentencing judge. Mr.
    Williams was prone to excessive physical response reactions to people,
    essentially strangers, who make him angry.

(c)

Were three out of four victims women in high school?

[83]

The
    sentencing judge also noted that three of the four victims of assault causing
    bodily harm were high school-aged women. Mr. Williams submits that the
    sentencing judge erred and only two of the female victims, the target of the
    1999 assault causing bodily harm and the predicate offence, were in fact known
    to be in high school. The other two victims of assault causing bodily harm were
    men.

[84]

Mr.
    Williams is correct and the sentencing judge was either mistaken or, more
    likely, misspoke. When stating that there were three high school-aged women,
    the sentencing judge may well have counted the woman who was the victim of the
    2003 simple assault. I view this error as having little significance. The fact
    remains that this commonality was present in several assaults, whether the
    conviction that ultimately resulted was for simple assault or assault causing
    bodily harm.

[85]

As
    a result, therefore, I see no basis to interfere with the sentencing judges
    conclusion that Mr. Williams assaulting and threatening behaviour displays a
    pattern of behaviour that meets the requirements of s. 753(1)(a)(i) and (ii).

4.

Should
    fresh evidence be admitted?

[86]

Mr.
    Williams seeks to admit fresh evidence to show how he has been progressing in
    the programs he has taken since being sentenced.

[87]

Despite
    the more flexible evidentiary approach at the sentencing stage, the
Palmer
test for the admissibility of fresh evidence nevertheless applies:
Sipos
,
    at para. 29. The material proposed by Mr. Williams post-dates the sentencing
    hearing and in my view does not meet the
Palmer
test. Nor is there a link
    between the legal error committed by the sentencing judge and the proposed
    fresh evidence:
Sipos
,
at paras. 36-40. The sentencing judges erroneous approach to the police
    synopses is unrelated to any progress made by Mr. Williams while in detention,
    which is a matter for the probation authorities. As a result, I would not admit
    this fresh evidence.

5.

What is the
    appropriate remedy?

[88]

For
    the reasons set out above, the sentencing judge erred in concluding that the contents
    of the police synopses in their entirety were proven beyond a reasonable doubt.
    However, it is well established that although the curative proviso under s. 686(1)(b)(iii)
    is not directly applicable to appeals from dangerous offender designations, a
    court can, by analogy, dismiss the appeal under s. 759(3)(b) despite the
    presence of an error of law:
Johnson
, at paras. 48-49. It can do so
    only if the error of law did not occasion a substantial wrong or miscarriage of
    justice and there is no reasonable possibility that the verdict would have been
    any different had the error not been made.

[89]

There
    is a heavy burden on the Crown to show that the error did not have any impact
    on the outcome:
Sipos
, at para. 35. I conclude that the Crown has met
    that burden. There is no reasonable possibility that the result would have been
    different had this error not been made. As I have explained, the legal error
    played virtually no role in the sentencing judges analysis. The conclusion
    that Mr. Williams is a dangerous offender was amply supported by the remainder
    of the record.

DISPOSITION

[90]

For
    these reasons, I would dismiss the appeal.

Paul Rouleau J.A.

I agree Alexandra
    Hoy J.A.

I agree J.C.
    MacPherson J.A.

Released: May 10, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: Rahsepar v. Estabrooks, 2018 ONCA 487

DATE: 20180525

DOCKET: M49084

Brown J.A. (Motion
    Judge)

BETWEEN

Simintaj Rahsepar

Applicant (Appellant)

and

Ms. Kathy Estabrooks

Respondent (Respondent)

Simintaj Rahsepar, acting in person

Andi Jin, for
    the respondent

Heard: April 30, 2018

REASONS FOR DECISION

INTRODUCTION

[1]

The applicant, Simintaj Rahsepar, seeks an order granting her an
    extension of time to file a notice of appeal from the order of James J. dated
    June 7, 2017 striking out her statement of claim without leave to amend.

[2]

For the reasons that follow, the motion is dismissed.

THE GOVERNING PRINCIPLES AND ANALYSIS

[3]

The principles that govern her request are those set out in cases such
    as
Kefeli v. Centennial College of Applied Arts and Technology
(2002),
    23 C.P.C. (5th) 35 (Ont. C.A., in Chambers): (i) whether the applicant formed
    an intention to appeal within the relevant period; (ii) the length of, and
    explanation for, her delay; (iii) the prejudice to the respondent; (iv) the
    merits of the appeal; and (v) whether the justice of the case requires the
    extension sought. I will address each ground.

The intention to appeal

[4]

Following the hearing of this motion, respondents counsel wrote the
    court to advise that on July 7, 2017 the applicant served a notice of appeal on
    the Crown Law Office  Civil, but evidently she did not file it with the court.
    The respondent does not contest that the applicant formed an intention to
    appeal within the requisite period.

The length of and explanation for the delay

[5]

The applicant filed her motion for an extension order on April 18, 2018,
    some 10 months following the order she seeks to appeal. That is a long delay.

[6]

The applicant offers two explanations for her lengthy delay.

[7]

First, she deposes that it took from June 2017 until January 19, 2018
    for this court to consider her request for a fee waiver. When the court grants
    or refuses a fee waiver, a letter or email usually is sent to the party. The
    applicant has not included in her motion material any application for a fee
    waiver or any communication from the court approving or denying her fee waiver.
    Although she included a January 19, 2018 letter from the Special Counsel, Office
    of the Chief Justice, responding to her letter of October 10, 2017, which
    apparently concerned a fee waiver, the applicant did not include her October
    letter. As a result, I simply lack the evidence to assess this part of the
    applicants explanation for her delay.

[8]

Second, the applicant deposes that since June 2017 she has suffered from
    various medical problems that prevented her from filing a notice of appeal or
    bringing a motion for an extension of time. The applicant filed extensive
    evidence on this point, both before and at the hearing. Some of the evidence
    covers her medical history well before the order she seeks to appeal.

[9]

I have reviewed it all. Having done so, I see no evidentiary basis to
    support the applicants contention that any medical condition prevented her
    from filing her motion for an extension of time until April 2018.

Prejudice to the respondent

[10]

The
    respondent does not contend she has suffered any prejudice from the applicants
    delay.

Merits of the appeal

[11]

In
    his endorsement, the motion judge stated that [t]here are numerous obvious
    pleading shortcomings in the [amended] statement of claim. As well, when the
    current claim was assessed in the larger context of related proceedings that
    had been dismissed on their merits, this action is also an abuse of process.

[12]

The
    respondent, Ms. Estabrooks, is an employee in the Registrars office of the
    Superior Court of Justice in Ottawa. The applicant sued the respondent for
    damages for inflicting unnecessary emotional pain, suffering and uncertainty.

[13]

The
    applicants claim is very difficult to follow. As best as I can determine, she
    is alleging that the respondent mismanaged paperwork and court filings involved
    in the applicants related proceeding, which resulted in certain orders being
    made against and to the prejudice of the applicant. The respondents behaviour
    also caused the applicant stress.

[14]

Even
    on the most liberal reading of the applicants amended statement of claim, I am
    unable to discern a cause of action. I see no merit to her appeal.

[15]

I
    would note that this courts records disclose that the applicant brought two
    appeals from the dismissal of her related proceedings: C61938 and C61939. Both
    appeals were dismissed. In an endorsement dated January 27, 2017 in C61938, a
    panel of this court wrote:

These actions began some 8-1/2 years ago. The summary judgment
    motion judge and two judges of this court have decided the matter to be devoid
    of merit. The appellant continues to bring new motions. We have reviewed the
    latest material. We too see no merit in the claim. Valuable resources have been
    expended. The respondents have been put to needless expense. Enough is enough.
    The motions are frivolous, vexatious and an abuse of the court process. The
    motions are dismissed.

The justice of the case

[16]

The
    applicant complains the motion judge made his order in her absence and in the
    face of her request for an adjournment due to a medical problem. In his
    endorsement, the motion judge recites at length the multi-year history of the
    respondents motion to strike and the delays in scheduling that motion as a
    result of the applicants conduct.

[17]

I
    have considered that history, together with all of the factors set out above.
    When considered as a whole, I conclude that the justice of the case requires
    that I dismiss the applicants motion, especially given the absence of a
    reasonable explanation of the applicants delay in seeking an extension of time
    and the absence of any merit to her claim.

Disposition

[18]

The
    applicants motion is dismissed. The respondent does not seek its costs of the
    motion.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rill v. Adams, 2018 ONCA 443

DATE: 20180510

DOCKET: M48689

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

BETWEEN

Warren Rill

Appellant

and

Dr. John Adams, Dr. Mark Guttman and the Centre
    for
Movement Disorders

Respondents

Warren Rill, acting in person

Lars Brusven, for the respondents

Heard: In writing

REASONS FOR DECISION

[1]

This matter came before us on March 29, 2018, by way of a motion in
    writing for leave to appeal. We dismissed the motion, with costs fixed at $500.

[2]

The record before us did not reflect that the moving party had been
    granted leave to file a reply factum within 60 days on February 15, 2018. His
    reply factum, which was filed on April 16, 2018, has now been brought to our
    attention, together with a letter in which he requests an opportunity to make
    oral submissions on his motion.

[3]

We have considered the matter afresh in light of the moving partys reply
    factum and his letter.

[4]

The moving party filed a 15-page factum and a 7-page reply factum. He
    has made full argument on the issues. We are not satisfied that an oral hearing
    is required.

[5]

Nor are we persuaded that leave to appeal should be granted.

[6]

The background is this. The moving party brought an action in the Small
    Claims Court, alleging negligent medical diagnosis and drug treatment. The
    respondents filed an expert medical report, which opined that they had met the
    standard of care. The moving party filed no report. The respondents moved to
    strike his claim at the commencement of trial, on the basis that it could not
    succeed without expert medical evidence that the respondents had breached the
    standard of care.

[7]

An adjournment was granted to enable the moving party to obtain
    evidence, in the form of either an expert medical report or a statement of a
    treating physician, to support his allegations. After being granted more than
    six months in which to obtain such evidence, the moving party was unable to
    provide satisfactory evidence that the respondents had breached the standard of
    care. His action was therefore dismissed.

[8]

His subsequent appeal to the Divisional Court was also dismissed:
Rill
    v. Adams
, 2017 ONSC 5297. The Divisional Court judge gave careful reasons,
    explaining why the moving partys action could not succeed in the absence of
    evidence of a breach of the standard of care. The Divisional Court judge
    considered the fact that the moving party was self-represented and that there
    was a need for a measure of flexibility in the application of the rules in
    Small Claims Court proceedings. He also noted, however, that it would be unfair
    to submit parties to a proceeding that had no reasonable prospect of success.

[9]

In our view, there is no basis on which leave to appeal should be
    granted. The moving party has identified no error in the reasons of the Divisional
    Court judge. The proposed appeal involves neither a question of law nor a
    matter of public importance. The issue raised by Mr. Rill does not transcend
    the particular issues and facts of this case. Nor does it require clarification
    by this court. It is well-established in the authorities (some of which were
    reviewed by the Divisional Court judge) that in cases of this kind the
    plaintiff must prove the standard of care by expert evidence, either through an
    expert or a treating physician.

[10]

Having
    reconsidered the matter in light of the moving partys reply factum and his
    letter, we remain of the view that the motion should be dismissed and it is so
    ordered.

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

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ritchie v. Ritchie, 2018 ONCA 486

DATE: 20180528

DOCKET: C64138

Rouleau, van Rensburg and Pardu JJ.A.

BETWEEN

Charlene Danita Ritchie

Applicant
(Respondent in Appeal)

and

Philip William Ritchie

Respondent
(Appellant)

Gary S. Joseph and Stephen
    P. Kirby, for the appellant

Herschel Fogelman and C. Paterson,
    for the respondent

Heard: April 23,
    2018

On appeal from the orders of Justice Theresa Maddalena of
    the Superior Court of Justice dated July 4, 2017, with reasons reported at 2017
    ONSC 4130, and dated September 29, 2017.

REASONS FOR DECISION

[1]

Philip William appeals from two trial decisions that
    determined issues unresolved by the parties pursuant to partial minutes of settlement.
    The issues for trial were:

1.

Duration and quantum of spousal support;

2.

Child and spousal support arrears;

3.

Amount to be paid by the appellant to the
    respondent to reflect the post-valuation-day increase in the value of her shares
    in Keefer Developments Limited (KDL), which she had transferred to him;

4.

Disposition of a recreational property in the
    United States (the Allegheny Mountain property);

5.

Costs.

[2]

The appellant submits that the trial judge erred
    by refusing to deduct losses incurred by Keefer Mansion Inc. (KMI), in which KDL
    had a majority interest, in determining his income for the purpose of support. He
    also submits that the trial judge erred in her assessment of the change in the
    value of the KDL shares, in her disposition of the Allegheny Mountain property,
    and in determining costs.

[3]

The issue concerning KMI, as framed for the
    trial judge, turned on (i) whether certain losses incurred by KMI, and other corporations
    controlled by the appellant, should be taken into account in determining his
    income for the purpose of support; (ii) whether the losses incurred by KMI
    provided a purely personal benefit to the appellant; and (iii) whether this
    benefit should be considered in determining the post-valuation-date change in
    the value of the KDL shares.

Income

[4]

The appellant retained an expert in

business valuation
,
Michael
Carnegie, to provide an opinion as to his income for the purpose of
    support. This was a complex matter because the appellant controlled, in whole
    or in part, over 44 corporations. The experts calculations initially deducted
    losses generated by two corporations, KMI and
Historic Niagara
    Development LP
(HNDL), controlled by the appellant. Carnegie
    testified that HNDL was not expected to continue losing money and the trial
    judge, on this basis, declined to deduct those corporate losses from the
    appellants income. That finding is not challenged on appeal. The trial judge also
    refused to deduct the losses incurred by KMI in calculating the appellants
    income, on the ground that those losses were incurred entirely and solely for
    the benefit of the appellant and without the knowledge or consent of the respondent.
    The appellant submits that the trial judge erred in refusing to take into
    account those losses, which were real losses incurred in the operation of the
    KMI business, in determining his income for the purpose of support.

[5]

KDL owned shares in KMI, which leased a
    historical building, Keefer Mansion, that it operated from 2006 as an inn, with
    a restaurant, and then as an events venue (the Mansion). KMI was und
er
    the sole direction and control of the
appellant. From
    approximately May 2012 up to and including the trial date, the appellant, his current
    spouse and some of their respective children resided in the Mansion.  KMI had
    accumulated substantial losses which were ongoing, and its operations were
    funded by another of the appellants companies, MSANF Inc. The trial judge held
    that KMI was used to fund the appellants lifestyle, and that the continued
    operation of its business made no financial sense. KMI had cumulative losses of
    over $2 million and had lost money for ten years in a row. The appellants own
    expert testified that a prudent owner would stop the red ink, and admitted that
    there was no economic or commercial reason for the losses to be continually
    funded, except to personally benefit the appellant.

[6]

The trial judges determination of the
    appellants income was reasonable in light of the evidence before her. The
    appellant acknowledged that his line 150 income as reported on his tax returns
    did not represent his true income. Even if he was determined to continue to
    operate KMI at a loss, the court was not, as the appellant argues, bound to
    accept his business judgment, when it came to determining his income for the
    purpose of support.

[7]

The appellant was not a credible witness. He was
    not forthcoming in his evidence about management fees he and others received
    from the various corporate entities. During cross examination, it became clear
    that he had incorporated another corporation, through which he funneled monies
    that contributed to his income. His own expert was not provided with this
    crucial information. The appellant does not challenge the trial judges
    credibility findings on appeal.

[8]

The trial judge concluded, at paras. 92-95, as
    follows:

The respondent continued to assert in his
    evidence that his actual income for support purposes is about $80,000. I find
    it is virtually impossible to determine his true income given all the
    inconsistencies in his evidence as well as the lack of relevant information.
    The applicants approach is to utilize the calculations prepared by Carnegie,
    but to back out of those calculations the losses for KMI and HNDL for reasons
    already provided.

In the absence of reliable and cogent evidence of
    the respondent, as well as the absence of a properly instructed expert report,
    I adopt the approach of the applicant as reasonable in the circumstances.

Therefore, I find the income of the respondent
    for support purposes as follows:

2012
          $326,716

2013
       $194,017

2014
          $230,530

2015
          same as 2014

2016
          same as 2014

It remains the
    responsibility and obligation of the respondent to satisfy the court as to his
    real income for support purposes. The lack of a properly instructed report
    substantially hampers the decision-making process of the court. The evidence of
    the respondent with respect to finances has been vague and unclear. Family law
    proceedings are all about full and fair disclosure. Anything less is unacceptable
    and draws adverse inferences. In this particular case, it is clear that full
    particulars of the respondents finances have not been provided to his expert
    or to the court.

[9]

There is no basis to interfere with the trial
    judges findings about the appellants income for support purposes.

The change in share value

[10]

The appellant submits that the trial judge
    should not have considered the personal benefit he received through KMI in
    assessing the change in the value of the KDL shares. The appellant did not lead
    any expert evidence at trial about the change in the value of those shares. The
    respondents expert,
Steve Ranot,
gave evidence of two
    values. The higher value reflected an exclusion of KMIs losses after the date
    of separation. The trial judge accepted at paras. 36-38 that the losses
    incurred by KMI should not be factored into the calculation of the change in
    the value of the KDL shares:

KMI cannot repay its debt. The Mansions debt has
    continued to escalate since the date of separation. The Mansion continues to
    exist as a personal benefit for the respondent which I will also deal with
    later herein. The Mansion debt has continued solely for the benefit of the
    respondent.

The respondent is funding the continued and
    ongoing losses in KMI, where he now lives, with income from [2009104 Ontario
    Inc. and MSANF Inc.]. Under the circumstances, the losses in KMI ought to be
    ignored for purposes of determining the post-separation increase in value.

Therefore, I accept
    the high value as calculated by Ranot and in his report. I conclude that the
    value of KDL post-separation is $947,039. The respondent owes to the applicant
    20% which is $189,407. Therefore, the respondent shall pay to the applicant
    $189,407 as the increase in value of KDL. This may be rolled into a holding
    company created for the applicant for such purposes.

[11]

We agree that the extent to which a corporation
    provides personal benefits to a shareholder, which notionally claims losses or
    a negative value on the corporate balance sheet, can be a relevant factor in
    the assessment of the value of the shares.

[12]

There is no basis to interfere with this largely
    factual determination.

Allegheny Mountain property

[13]

The appellant submits that the trial judge erred in ordering him to
    pay $16,557.50 on account of the Allegheny Mountain
trailer
only, and not on account of the
    land lease where the trailer was located.

He
    conceded during the trial that he sold the trailer without the consent of the respondent
    and used the proceeds to purchase a new trailer which was placed in the name of
    his current spouse. During the trial, the appellant agreed to pay the respondent
    $16,557.50 for the trailer.

[14]

The precise nature of the parties agreement was
    not made clear to the trial judge. The appellant has parked his new trailer on
    the leased land. The respondent has not in fact had access to the leased land,
    and does not oppose a change to the judgment to include a release of the lease
    as well as the trailer. Paragraph 5 of the order shall be changed to add and
    on account of the leased land upon which the trailer was located, provided that
    the appellant shall indemnify the respondent for any income tax consequences to
    her flowing from the release of the lease.

Costs

[15]

The appellant seeks leave to appeal costs and
    submits that the trial judge erred in awarding costs of $314,566 to the respondent,
    which was inclusive of over $80,000 in expert fees and other disbursements.

[16]

The respondent sought costs on a full indemnity
    basis and submitted a bill of costs for over $450,000. The appellant submitted his
    own bill of costs in the sum of $186,045.50.

[17]

The appellant submits that the trial judge erred
    in her costs decision. He argues that no costs should have been awarded since
    there was a partial settlement, and since he did no worse at trial than he
    would have had he accepted the offer to settle.

[18]

We do not accept these arguments. Spousal and
    child support were in issue from the beginning of the litigation. This case was
    quite different from one such as
Blank v. Micallef,
[2009] O.J.
    No. 4636
(S.C.), which is relied upon by the appellant, in
    which the parties settled all the issues between them, except for costs, and
    then asked the judge to decide costs without the benefit of a factual context.

[19]

The appellant has not articulated any basis to
    disagree with the trial judges assessment of the offers made by the parties,
    at paras. 35-37:

Generally, I accept that the applicant
    obtained an order that is as favourable as the offer on most of the issues
    including property, spousal and child support, and arrears, save and except for
    the equalization payment.

The offer to settle of the respondent, dated
    May 12, 2016, ignored child and spousal support arrears, and ignored ongoing
    spousal support.

The offer of the
    respondent further did not realistically consider any increase in the value of
    the applicants 20% interest in KDL. Generally, the respondents offer was far
    below what the court ordered. [Footnote omitted.]

[20]

The trial judge appropriately applied the relevant
    cost factors set out in r. 24 of the
Family Law Rules
, O. Reg.
    114/99
. At paras. 40-47, she explained:

The issues for trial were of paramount
    importance to the applicant. The financial issues of the case were complex.
    Separate and apart from the evidence of the applicant and the respondent, most
    of the time at trial dealt with the evidence of the experts.

The respondents actions in this case, no
    doubt, clearly contributed to the higher costs of this litigation for the
    applicant. I made various findings in my reasons concerning lack of proper
    disclosure by the respondent. Further, for unknown reason, the respondent did
    not engage his expert to prepare an analysis of his income for 2015 and 2016.
    The respondent formed a new corporation into which he was funneling monies and
    yet this was not disclosed in advance of trial.

The court found the respondents answers
    regarding his finances to be vague and unclear, all of which are outlined in
    the courts reasons released July 4, 2017.

Whether from bad judgment, carelessness,
    negligence or otherwise, I concluded that the conduct of the respondent was
    unreasonable. Legal fees could have been substantially reduced if the
    respondent had taken a more reasonable approach to this litigation.

The respondents offer to settle was clearly
    not a reasonable one.

The court agrees that a consequence of the
    respondents offer to settle was that the trial became inevitable with
    additional costs to the applicant.

The concealment of information relevant to the
    issues leads the courts to conclude unreasonable conduct which could amount to
    bad faith on the part of the respondent.

Under the
    circumstances, it would have been reasonable for the respondent to expect
    substantial cost consequences given his behavior during the litigation.

[21]

The appellants conduct alone would have
    justified considering full indemnity costs.

[22]

Accordingly, we dismiss the appeal, with costs
    to the respondent in the agreed sum of $22,000, inclusive of disbursements and
    HST.

Paul Rouleau J.A.

K. van Rensburg J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018
    ONCA 467

DATE: 20180518

DOCKET: C64126

Hoy A.C.J.O., Juriansz and Miller JJ.A.

BETWEEN

Royal Host GP Inc., in its capacity as the
    general partner of the Royal Host Limited Partnership

Plaintiff (Appellant)

and

1842259 Ontario Ltd., Mao Hui Zhang, Tian Xing
    Yang and Dong Jiang

Defendants (Respondents)

Jonathan C. Lisus and Andrew J. Winton, for the appellant

Dan Rabinowitz and Sean D. McGarry, for the respondents

Heard: March 12, 2018

On appeal from the judgment of Justice Marc A. Garson of
    the Superior Court of Justice dated July 5, 2017, with reasons reported at 2017
    ONSC 3982.

Juriansz J.A.:

A.

Facts

[1]

The appellant owns a multi-story commercial
    building in which it operates a hotel. The respondents leased a portion of the
    building in which they operated a restaurant. A fire broke out in the
    respondents kitchen causing extensive damage to the building. The appellant
    was indemnified by its insurer for its losses and its insurer commenced this subrogated
    action, in the appellants name, seeking recovery of the damages suffered. The
    action alleges the fire was caused by the respondents negligence.

[2]

The respondents took the position that even if
    the fire were caused by their negligence, the terms of the lease prevented the
    appellant from bringing this action. The respondents brought a motion by way of
    special case seeking determination of the following question:

Does the lease bar the plaintiffs insurer from bringing this subrogated
    action for damages in the name of the plaintiff, as against defendants?

B.

Decision of the Motion Judge

[3]

The motion judge answered the question Yes and
    dismissed the appellants action. This conclusion was based on the motion
    judges construction of s. 7.02 of the lease. Section 7.02 provided the landlord
    shall take out and maintain fire insurance on the building and added the
    costs of the insurance to the common expenses paid by the tenants. It also stated
    that the tenant is not relieved of any liability arising from or contributed
    to by its acts, faults, negligence or omissions.

[4]

The motion judge relied on a trilogy of Supreme
    Court of Canada decisions: (i)
Agnew-Surpass v. Cummer-Yonge
, [1976] 2
    S.C.R. 221; (ii)
Ross Southward Tire v. Pyrotech Products
, [1976] 2
    S.C.R. 35; and (iii)
T. Eaton Co. v. Smith et al
.
, [1978] 2
    S.C.R. 749. Citing these cases, he said As a general rule, courts have limited
    the subrogation rights of an insurer when a landlord covenants to pay for the
    insurance and agrees to look to its own insurer for any loss.

[5]

The Supreme Court set out two principles in the
    trilogy. The first is that a landlords
covenant in a
    lease to insure the premises is a contractual benefit for the tenant, and the tenant
    would receive no benefit if the landlord could sue the tenant for the damages
    due to its negligence. The rationale for the principle is that since the
    landlord is free to insure the premises, the
inclusion
    of a covenant to insure must be for the benefit of the tenant. If the landlords
    insurer were allowed to bring subrogated claims against the tenant, the
    covenant expressly running to the benefit of the tenantwould have no subject
    matter:
T. Eaton Co
., at p. 754.

[6]

The second principle is that where the tenant
    pays for the insurance coverage, it should get the benefit of the insurance
    coverage. The logic is that the tenant having paid for the insurance should get
    the benefit of the insurance. As Laskin C. J. put it in
Pyrotech Products
, at p. 41, the tenant
    has paid for an expected benefit, as between itself and its landlord which any
    standard fire policy would reflect in providing indemnity to the landlord.

[7]

The motion judge, following the logic of the
    Supreme Court in the trilogy, reasoned at, paragraph 27, that the clause must
    be construed to benefit the tenant. He remarked, at paragraph 35, that [i]t
    would defeat the purpose of the covenant to permit the insurer to look to the tenant
    for recovery after the lease clearly required the landlord to seek recovery
    from the insurer and not [the tenant]. He concluded
The
    language of the lease does not clearly and expressly reflect the parties' joint
    intention of permitting the landlord's insurer to recover damages from the
    defendants in the event of a fire loss caused by the defendants.

[8]

The limiting language of s. 7.02, according to
    the motion judge, meant that the tenant was not relieved of any liability
to
    third parties
for its negligence. The tenants obligation in s. 7.04 to
    acquire commercial general liability insurance did not shift liability for damage
    by fire from the landlord to the tenant because the tenants insurance is
    intended to indemnify the landlord for joint and several liability from third-party
    claims.

[9]

The motion judge noted that the lease,
    elsewhere, specifically addressed the issue of subrogation but s. 7.02 did not.
    Section s. 7.04, which required the tenant to take out commercial general
    liability insurance, expressly excluded any subrogated claim by the tenants
    insurer against the landlord. He reasoned that if the parties had intended to depart
    from the general rule, they could have used similar language in s. 7.02 and expressly
    addressed and permitted the landlord's insurer a right to subrogate against the
    tenant.

[10]

The motion judge also referred to s. 7.04s
    requirement that the tenant acquire insurance coverage for $5 million. He
    considered that, if the tenant were liable for damage from its negligence, it
    did not make commercial sense for the lease to require the landlord to take out
    insurance of at least $10 million, and yet require the tenant to acquire
    insurance only in the amount of $5 million.

[11]

The motion judge concluded that the language in
    s. 7.02 referring to the tenant's negligence did not create a right of
    subrogation for the landlords insurer and so dismissed the action.

C.

Analysis

[12]

The parties agree that the standard of review in
    this appeal is correctness. In a case that similarly involved the application
    of the trilogy in the interpretation of a lease, this court decided the
    standard of review was correctness:
Deslaurier Custom Cabinets Inc. v.
    1728106 Ontario Inc
.,
2016 ONCA 246
,
[2016] O.J. No. 1705. Justice
    Cronk, writing for the court, pointed out, at para. 26, the general standard
    stated in
Creston Moly Corp. v. Sattva Capital Corp
.
, 2014 SCC
    53, [2014] 2 S.C.R. 633 (S.C.C.) was not absolute and:

the correctness standard may apply to questions of contractual
    interpretation where it is "possible to identify an extricable question of
    law from within what was initially characterized as a question of mixed fact
    and law" (citation omitted). "Extricable questions of law" in
    this context include legal errors involving "the application of an
    incorrect principle, the failure to consider a required element of a legal
    test, or the failure to consider a relevant factor" (citation omitted).

[13]

In this case, there was an agreed statement of
    facts and the motion judges reasoning was restricted to the interpretation of
    the wording of the lease in light of the legal principles enunciated in the
    trilogy.

[14]

The motion judges analysis erred in principle
    by proceeding as if the Supreme Court, in the trilogy, pronounced a rule of
    general application. The motion judge repeatedly referred to the general
    rule. The starting point for the analysis is that in the trilogy the Supreme
    Court did not enunciate freestanding principles. The principles drawn from the
    trilogy are contractual in nature. They are conclusions that flow from and
    reflect the particular provisions of the leases that were in issue in those
    cases.

[15]

In the trilogy, the Supreme Court determined
    that it is the terms of the lease that establish the rights and obligations
    between landlord and tenant, and not the insurance policy. In
Agnew-Surpass,
Laskin C.J. stated, at p. 230, that the question of the scope of the indemnity
    as it arises in this case is not dependent on the policy but, rather, so far as
    the lessor and lessee are concerned, on the terms of the lease. In
Pyrotech
    Products
, Laskin C.J. said at p. 41 the relations between landlord and tenant
    in respect of the tenant's liability to the landlord for damage from fire
    caused by negligence must be determined on the basis of the lease and not by
    reference to insurance policy considerations.

[16]

The trilogy has not affected the fundamental tenet
    of contractual interpretation that it is necessary to discern the intentions of
    the parties in accordance with the language they have agreed to in the
    contract. The motion judge recognized that his task was to interpret the lease
    in accordance with the intentions of the parties, but he allowed the principles
    of the trilogy to override the plain language of the lease.

[17]

The appeal turns on the proper construction of s. 7.02. The entire
    clause reads:

Section 7.02 Landlords Insurance  Mandatory

The Landlord shall take out and maintain, to the full
    replacement value, fire and other hazard insurance, as the Landlord in its sole
    discretion may deem advisable, on the Building, excluding any property thereon
    with respect to which the Tenant or other tenants are obliged to insure, and
    its own general liability insurance, including general liability insurance in
    respect of the Common Areas in an amount no less than $10,000,000.00 in respect
    of any injury to or death of one or more persons and loss or damage to the
    property of others, the costs of which shall be included in Common Expenses.

Notwithstanding the Landlords covenant contained in this
    Section 7.02, and notwithstanding any contribution by the Tenant to the cost of
    any policies of insurance carried by the Landlord, the Tenant expressly
    acknowledges and agrees that

(i)

the Tenant is not relieved of any liability arising from or contributed
    to by its acts, fault, negligence or omissions, and

(ii)

no insurance interest is conferred upon the Tenant, under any policies
    of insurance carried by the Landlord, and

(iii)

the Tenant has no right to receive any proceeds of any policies of
    insurance carried by the Landlord.

[18]

The first part of s. 7.02 of the lease in this
    case both obligates the landlord to purchase and maintain fire insurance on the
    building and requires the tenant to pay its proportionate share of the cost of
    such insurance. This, if it were all, would be a sufficient basis for the
    application of both conclusions the Supreme Court arrived at in the trilogy.

[19]

However, s. 7.02 continues with a
    notwithstanding provision. The word notwithstanding appears twice. The
    first notwithstanding indicates the clause applies despite the landlords
    covenant contained in s. 7.02 to purchase and maintain fire insurance. This
    seems to relate to the first principle of the trilogy. The second
    notwithstanding indicates the clause applies despite the tenants
    contribution to the cost of the fire insurance policy carried by the landlord. This
    seems to relate to the second principle of the trilogy.

[20]

The two notwithstanding phrases focus directly
    on the two features that when found in leases give rise to the principles of
    the trilogy. The ordinary grammatical meaning of the two notwithstanding
    phrases is that the stipulations that follow apply despite the existence of
    these two features.

[21]

The plain meaning of s. 7.02 of the lease
    considered in isolation is that the tenant remains liable for its own
    negligence notwithstanding the landlords covenant to purchase insurance and
    the tenants contribution for the cost of that insurance. It remains to consider
    whether reading the lease as a whole dictates a different result.

[22]

The respondents submit that s. 7.04 of the lease
    supports the motion judges interpretation of s. 7.02 as referring to the tenants
    liability to third parties. Section 7.04 obligates the tenant to take out
    insurance in the amount of $5 million for third -party liability. Section
    7.04(ii) provides that the tenants insurance shall exclude the exercise of
    any claim by the tenants Insurer against the Landlord by subrogation. The
    respondents argue, and the motion judge reasoned, that this shows that the
    parties contemplated the concept of subrogation and chose not to include
    language providing that the landlords insurer would have the right to
    subrogate against the tenant in s. 7.02.

[23]

I do not agree with this reasoning. This feature
    of the lease could be viewed to favour the appellants construction. Employing
    the logic of the trilogy, s. 7.04 must be construed to be for the benefit of
    the landlord as, absent any contractual obligation, the tenant can purchase whatever
    insurance it thinks advisable. The landlord would lose the benefit of the tenants
    covenant in s. 7.04 if the tenants insurer could subrogate against the landlord.
    This was the reasoning of this court in
Deslaurier Custom Cabinets Inc.
On this analysis, the purpose for including, in s. 7.04, the stipulation that
    the tenants insurer cannot subrogate against the landlord is to establish a
    distinction with clause 7.02, where the equivalent stipulation, i.e. that the
    landlords insurer cannot subrogate against the tenant, is not included.

[24]

The respondents also argue, if the parties
    intent was to make the tenant ultimately responsible for all damages, it does not
    make sense for the lease to require the tenant to maintain only $5 million in
    insurance, while requiring the landlord to maintain $10 million in insurance.
    This is especially so, they say, considering the tenant occupies only a small
    portion of the building. They go on to submit it is not commercially reasonable
    to require a small tenant to insure the entire building and the landlords
    associated damages.

[25]

I do not find these arguments persuasive. The
    interpretation advocated by the appellant does not require the tenant to insure
    the entire building, but only to insure for damages due to its own negligence. It
    would not be commercially unreasonable for the parties to regard it as unlikely
    that the negligence of a small tenant would destroy the entire building.
    According to the appellants statement of claim, the actual damage to the
    building in this case was in the order of $4 million. I see no basis to
    conclude that the leases allocation of $10 million of risk to the landlord and
    $5 million to the tenant is commercially unreasonable.

[26]

The appellant points to a number of clauses that
    support its interpretation of s. 7.02. For example, several provisions impose
    on the tenant the contractual obligation to repair damage to the building
    resulting from the tenants negligence. The respondents submit these provisions
    should be read to address only the tenants liability to third parties.

[27]

There are, however, no words in the lease that
    support such a construction. The lease must be interpreted in accordance with
    the language the parties have used. In law, a tenant is liable for damage
    caused by its negligence. The question is whether the parties to a lease have
    contracted that the ordinary principles of negligence law will not apply and
    the tenant will not be liable to the landlord for damages caused by its
    negligence. In my view, the parties to this lease have not done so.

[28]

According plain meaning to the language of s.
    7.02 does not make the clause inconsistent with the lease as a whole. The lease
    provides in clear, express and unambiguous language that the tenant has the
    benefit of the insurance the landlord has covenanted to purchase in all
    circumstances except where the damage is caused by its own negligence. The
    motion judge erred in not giving effect to this language.

D.

Conclusion

[29]

I would allow the appeal, set aside the motion
    judges order and replace it with an order answering the question posed on the
    stated case No.

[30]

Reflecting the agreement of counsel, I would fix
    the appellants costs of the appeal in the amount of $10,000, and the
    appellants costs of the motion in the amount of $10,000, both amounts
    inclusive of disbursements and HST.

Released: AH MAY 18 2018

R.G. Juriansz J.A.

I agree. Alexandra Hoy
    A.C.J.O.

I agree. B.W. Miller
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Skunk v. Ketash, 2018 ONCA 450

DATE: 20180514

DOCKET: C64258

Rouleau, Roberts and Fairburn JJ.A.

BETWEEN

Christopher Skunk

Appellant (Plaintiff)

and

Laurel Ketash and
Jevco
    Insurance Company

Respondent
(Defendants)

Edward S.E. Kim, for the appellant

Alex W. Demeo, for the respondent, Jevco Insurance
    Company

Heard: May 8, 2018

On appeal from the judgment of Justice F.B. Fitzpatrick
    of the Superior Court of Justice, dated July 25, 2017, with reasons reported at
    2017 ONSC 4457.

REASONS FOR DECISION

[1]

This is an appeal from the determination of a
    legal question under Rule 21.01 of the
Rules of Civil Procedure,
resulting in the dismissal of the appellants claim against the
    respondent insurer
.
The appellant was a passenger
    in his spouses vehicle when it was taken without consent by an uninsured
    driver, Laurel Ketash. The vehicle was then involved in an accident and the
    appellant was injured.

[2]

The motion judge determined that the appellants
    spouse had no applicable and collectible bodily injury liability insurance
    because Ms. Ketash was driving the vehicle without the owners consent.  He
    concluded that because the appellants spouse owned the vehicle, he was
    excluded from uninsured automobile coverage under the
Insurance Act,
R.S.O. 1990, c I.8,

the
Ontario Automobile Policy
(OAP)

and the
OPCF
    44R Family Protection Coverage Endorsement.

[3]

Section 265(2) of the
Insurance Act

provides the following definition of uninsured automobile:

uninsured automobile means an automobile
    with respect to which neither the owner nor driver thereof has applicable and
    collectible bodily injury liability and property damage liability insurance for
    its ownership, use or operation, but does not include an automobile owned by or
    registered in the name of the insured or his or her spouse.

[4]

Section 5.1.2 of the applicable insurance policy
    includes a similar exception to the uninsured automobile coverage: this does
    not include an automobile owned by or registered in the name of the insured person
    or their spouse. Section 1.11 of the
OPCF 44R Family Protection
    Coverage,
reads in virtually identical terms: an
    uninsured automobile does not include an automobile owned by or registered in
    the name of the insured or his or her spouse.

[5]

The motion judge found no ambiguity in the plain
    language of the statute or the contractual policies at issue and concluded that
    the language is clear on its face.

[6]

The appellant maintains that the motion judge
    erred in his interpretation of the provision. He argues that the exception to
    uninsured automobile insurance must be afforded a purposive interpretation.
    It was never intended to preclude insurance for a person injured while in their
    spouses properly insured motor vehicle, only because that vehicle has been
    taken without consent of the spouse. He submits that any other interpretation
    would lead to an absurd result, as exemplified by the facts of this case.  He
    relies upon this courts judgment in
Jubenville v. Jubenville,
2013 ONCA 302, 360 D.L.R. (4th) 109, to advance this argument.

[7]

We disagree.

[8]

The principles of statutory interpretation
    require that the court first look to the plain meaning of the statute. If the
    words have a plain meaning and give rise to no ambiguity, then the court should
    give effect to those words:
R. v. Clarke,
2013
    ONCA 7, 293 C.C.C. (3d) 369, at para. 18. We conclude that the meaning of the
    definition of uninsured automobile under s. 265(2) is clear and unambiguous:
    uninsured automobile means
but, does not include an automobile
    owned by or registered in the name of the insured or his or her spouse
[emphasis added]
.

[9]

As a general rule, clauses in insurance policies
    will be granted a liberal meaning in favour of the insured and those clauses
    excluding coverage [will be] construed strictly against the insurer:
Chilton
    v. Co-operators General Insurance Co.
(1997), 97 O.A.C.
    369, at para. 19. The difficulty here is that the provision, virtually
    identical to the wording of the same definition of uninsured automobile under
    s. 265(2), is clear on its face. In order to arrive upon the appellants
    interpretation of the provision, it would be necessary to read words into the
    provision. The provision would have to be interpreted as meaning that an
    uninsured automobile  does not include an automobile owned by or registered
    in the name of the insured or his or her spouse, [but only where the insured or
    his or her spouse has deliberately chosen not to insure the vehicle].  As this
    court noted in
Chilton
, at para. 20,
[
r
]
eading the words out of an insurance policy or giving the words an
    opposite meaning is not synonymous with a liberal interpretation. The same can
    be said for adding the phrase that would be required to give effect to the
    appellants submission.

[10]

Although
Jubenville
, at para. 25, suggests a reason for the exclusion within s. 265(2)
     to prevent individuals from relying on uninsured automobile coverage instead
    of insuring each of their vehicles  there could be other reasons for the
    legislative choice of language. For instance, the legislature may have intended
    that the claimant spouses not be able to recover should they place the vehicle
    into an uninsured automobile context by, for example, driving the vehicle
    while an excluded driver. Where, as here, the exclusion provided for under s.
    265(2) and the policy is unambiguous on its face, it is not the role of this
    court to rewrite the provision based on speculation. Although it is proper to
    resolve conflicts between two different interpretations, the provision presents
    no ambiguity.

[11]

The fact that this may produce a harsh result
    does not mean that it is an absurd result, as it is in accordance with the
    plain meaning of the unambiguous provision:
Chilton
, at para. 21.

[12]

We
    also disagree with the appellant that even if he was not injured by an
    uninsured automobile, the claim should not have been dismissed. Section 5.2.1
    of the
OAP

only allows
    coverage for damages arising from an uninsured or unidentified automobile,
    which is not the case here.

[13]

The
    motion judge made no error in dismissing the motion and we decline to
    interfere.

[14]

The
    appeal is dismissed. The respondent shall have costs in the amount of $5,000.

Paul
    Rouleau J.A.

L.B
.
    Roberts J.A.

Fairburn J.A.