COURT OF APPEAL FOR ONTARIO

CITATION: Laurentian University of Sudbury
(Re), 2021 ONCA 448

DATE:  20210623

DOCKET: M52471

Hoy, Pepall and Zarnett JJ.A.

In the Matter of the
Companies Creditors Arrangement Act
,

R.S.C. 1985, c. C-36, as amended;

And in the Matter of a Plan of Compromise or Arrangement

of Laurentian University of Sudbury

Andrew J. Hatnay, Demetrios Yiokaris, and
Sydney Edmonds, for the moving party, Thorneloe University

D.J. Miller, Scott McGrath and Derek
Harland, for the responding party, Laurentian University of Sudbury

Vern W. DaRe, for the responding party,
Firm Capital Mortgage Fund Inc.

Heard: in writing

Motion for leave to appeal from the order
of Chief Justice Geoffrey B. Morawetz of the Superior Court of Justice, dated May
2, 2021, with reasons reported at 2021 ONSC 3272 and 2021 ONSC 3545.

REASONS FOR DECISION

[1]

Laurentian University of Sudbury (Laurentian) is a publicly funded,
bilingual and tricultural post-secondary institution, serving domestic and
international undergraduate and graduate students.

[2]

On February 1, 2021, it sought and obtained protection under the
Companies Creditors Arrangement Act
, R.S.C. 1985, c. C-36
(CCAA), to permit it to restructure, financially and operationally, in order
to emerge as a sustainable university for the benefit of all stakeholders.

[3]

When it sought CCAA protection, Laurentian, with the assistance of the
Monitor, identified a number of areas in which a financial restructuring was
required. These included a downsizing of the number of programs being

offered by Laurentian, and new, sustainable collective
agreements with the association and the union representing Laurentian faculty
and staff. Laurentian also identified, at the outset of the CCAA proceeding,
that it would be necessary to have a fundamental readjustment or realignment of
its arrangements with the three Federated Universities:
Thorneloe
University (Thorneloe), Huntington University (Huntington) and University
of Sudbury (USudbury).

[4]

A court-ordered mediation facilitated Laurentian reaching
agreements with parties to the collective agreements; however, Laurentian was
not successful in reaching what it considered to be the required readjustments
with the Federated Universities.

[5]

On April 1, 2021, Laurentian sent notices of disclaimer
of the agreements later described in these reasons to the Federated Universities.
The Monitor approved the disclaimer notices.

[6]

Thorneloe brought a motion pursuant to s. 32(2) of the
CCAA challenging its disclaimer notice. (USudbury brought a similar motion,
which was heard by a different judge.) Thorneloe and USudbury also brought a
joint cross-motion, seeking an order to amend the Loan Amendment Agreement
dated April 20, 2021 (DIP Amendment Agreement) by deleting the
condition that further financing and the extension of the DIP loan maturity
date was conditional on disclaimer of agreements with the Federated
Universities.

[7]

The CCAA judge dismissed Thorneloes motion and the
cross-motion. Thorneloe now seeks leave to appeal both decisions. At the heart
of its submissions is its contention that allowing the disclaimer will result
in Thorneloes insolvency and yet provide only
de minimis
financial
benefit to Laurentian, and that the motive for the disclaimer is the elimination
of competition, which is inconsistent with the duty to act in good faith.

[8]

Thorneloe also seeks leave to admit fresh evidence
consisting of an affidavit of its President. No opposition was taken by the responding
parties to the fresh evidence and, in the circumstances, leave to admit the
fresh evidence is granted.

[9]

For the reasons that follow, we dismiss Thorneloes
leave motion.

A.

BACKGROUND

Relationship between Laurentian and
Federated Universities

[10]

In 1960, Thorneloe, Huntington and USudbury were established by the
Anglican, United and Roman Catholic churches, respectively. As religiously affiliated
institutions, they were not eligible for government funding.

[11]

The Province of Ontario passed
An Act to Incorporate Laurentian
University of Sudbury
, S.O. 1960, c. 151, and Laurentian was established.

[12]

In September 1960, Laurentian entered into Federation Agreements
with Huntington and USudbury. Two years later, Thorneloe also entered into a federation
agreement with Laurentian (1962 Federation Agreement).

[13]

In its Third Report, dated April 26, 2021, the Monitor described the
relationship that existed between the Federated Universities and Laurentian
prior to the disclaimers:

The Federated Universities do not admit or
register their own students, nor do they grant their own degrees (with the
exception of Theology at Huntington and Thorneloe). All Federated University
programs and courses are offered through [Laurentian], and all students apply to
[Laurentian]. Students who enroll in a program at [Laurentian] may take
elective courses at any or all of the three Federated Universities as well as [Laurentian],
which are all physically located on [Laurentians] campus. Students enrolled in
programs, courses, majors and minors that are administered by the Federated
Universities are students of [Laurentian] and these courses are credited
towards a degree from [Laurentian], which has the sole authority to confer
degrees upon students (with the exception of Theology at Huntington and
Thorneloe).

[A]s all students are students of [Laurentian]
regardless of whether they are enrolled in programs or take courses at one of
the Federated Universities, the Federated Universities do not directly bill or
collect tuition.

[14]

The Monitors Third Report also described the financial arrangements
between Laurentian and the Federated Universities under Financial Distribution
Notices sent by Laurentian to each of the Federated Universities in May 2019, amending
the Proposed Grant Distribution and Service Fees agreement between Laurentian, USudbury,
Thorneloe, and Huntington, dated November 10, 1993:

[Laurentian] and the Federated Universities
have certain financial agreements in place pursuant to which [Laurentian]
receives, allocates and distributes a portion of [Laurentians] revenue to the
Federated Universities in accordance with a funding formula (the
Federated Funding Formula
).
Through this Federated Funding Formula, [Laurentian] compensates the Federated
Universities for delivering programs and services to [Laurentian] students. The
key terms of the Federated Funding Formula include the following:

a. A portion of provincial grants received by [Laurentian]
are distributed to the Federated Universities based on the proportion of
students enrolled in the Federated Universities programs;

b. A portion of tuition fees received by [Laurentian]
are distributed to the Federated Universities based upon student enrolment in
courses offered through the Federated Universities; and

c. An offsetting charge for service fees
charged by [Laurentian] to the Federated Universities in exchange for [Laurentian]
providing certain support services to the Federated Universities (calculated as
15% of grant and tuition revenues distributed to the Federated Universities).
[Bold in original.]

CCAA Proceeding

[15]

Under the Amended and Restated Initial Order dated February 11, 2021,
the CCAA judge approved a debtor-in-possession (DIP) interim financing
agreement in the principal amount of $25 million.

[16]

After the commencement of the CCAA proceeding, Laurentian participated
in a mediation with some stakeholders. As a result of mediation, Laurentian entered
into term sheets for new agreements with both the Laurentian University Faculty
Association and the Laurentian University Staff Union, which have been approved
by the CCAA judge. The new agreements are expected to generate an estimated
annual savings of approximately $30.3 million, growing to $33.5 million over
the next few years.

[17]

Laurentian delivered disclaimer notices to each of the Federated
Universities on April 1, 2021. The notices disclaim the Federation Agreements
and Financial Distribution Notices with each of the Federated Universities.

[18]

Huntington
accepted its disclaimer and entered into the Huntington Transition Agreement
with Laurentian. Among other things, it was agreed that Huntington would no
longer deliver courses or programs as credit toward Laurentian degrees and
Laurentian would no longer transfer funding to Huntington. The Huntington
Transition Agreement contained a most favoured nation clause, whereby if
Thorneloe or USudbury are permitted to continue to receive funding from
Laurentian to teach courses or programs, Huntington will be similarly entitled.

[19]

USudbury
announced on March 12, 2021 that it would change to a francophone-only
university. USudburys motion to oppose its disclaimer was dismissed by Gilmore
J.: see
Laurentian University of Sudbury v. University of
Sudbury
, 2021 ONSC 3392. USudbury is not seeking leave to appeal
that decision.

[20]

On
April 20, 2021, Laurentian and the DIP Lender, Firm Capital Mortgage Fund Inc.,
entered into a DIP Loan Amendment Agreement,
which made the
advance of an additional $10 million in DIP financing to Laurentian and the
extension of the DIP loan maturity date subject to several conditions, including
the following:

The Disclaimers of the Borrowers Federation
Agreements and Financial Distribution Notices with each of Huntington
University, Thorneloe University and the University of Sudbury (collectively,
the Federated Universities) issued on April 1, 2021 shall become effective,
binding and final on May 1, 2021.

[21]

On April 21, 2021, the CCAA judge directed that [i]f Thorneloe or
USudbury have questions in respect of the DIP Loan, they can be directed to the
Monitor: 2021 ONSC 2983, at para. 5.

[22]

In its Third Report, the Monitor stated that the notices of
disclaimer would enhance the prospects of a viable compromise and that, without
them, Laurentian was unlikely to be able to complete a viable plan.

Decision Below

[23]

Thorneloe applied for an order that the 1962 Federation Agreement,
and the 2019 Financial Distribution Notice between Laurentian and Thorneloe, not
be disclaimed.

[24]

Under s. 32(1), the debtor company may, on notice to the other
parties to an agreement and the monitor, disclaim an agreement to which the
company is a party on the day on which CCAA proceedings commence. The monitor
must approve the proposed disclaimer (otherwise, the debtor is required to make
an application to the court for an order that the agreement be disclaimed). The
counterparty has 15 days after notice is given under s. 32(1) to make an
application to the court for an order that the agreement not be disclaimed. Section
32(4) describes the factors to be considered by the court in deciding whether
to make the order:

(4)
In deciding whether to make the order, the court is to
consider, among other things,

(a)
whether the monitor approved the proposed disclaimer or
resiliation;

(b)
whether the disclaimer or resiliation would enhance the
prospects of a viable compromise or arrangement being made in respect of the
company; and

(c)
whether the disclaimer or resiliation would likely cause
significant financial hardship to a party to the agreement.

[25]

The CCAA judge noted that s. 32(4) requires a balancing of
interests. In his words, the courts discretion is exercised by weighing the
competing interests and prejudice to the parties and assessing whether the
disclaimer  is fair and reasonable. After engaging in that balancing
exercise, he concluded that the better choice, or, to put it another way, the
least undesirable choice, was to uphold the notice of disclaimer.

[26]

In reaching that conclusion, he considered, among other things, the three
itemized s. 32(4) factors. He took into account the fact the Monitor approved the
disclaimer and that the Monitors reasons for approving the disclaimer reflect[ed]
a proper balancing of the competing interests of Laurentian and all
stakeholders, including Thorneloe. Among other things, the Monitor noted in
its Third Report that Laurentian has limited opportunities to increase its
revenues and that even though some net savings have been achieved that are
significant and address Laurentians operational deficit, they are unlikely to
be sufficient to cover other items, including the repayment of the DIP Facility
and the payment of distributions to creditors pursuant to a plan of compromise
or arrangement. The Monitor concluded that the additional savings to Laurentian
that would result from the disclaimers were required for (Laurentian) to have
a reasonable opportunity to put forward a viable plan of compromise or
arrangement and effect a successful restructuring, and that despite the hardship
to the Federated Universities that it would cause, the disclaimers were
necessary.

[27]

The CCAA judge noted that Laurentian had identified that if the
disclaimers involving Thorneloe and USudbury were upheld, together with the
Huntington Transition Agreement, it would result in $7.7 million of additional
funds remaining with Laurentian on an annual basis. That represented a real
source of annual financial relief for Laurentian. He addressed Thorneloes
argument that its relationship with Laurentian has only a minor financial
impact on Laurentian:

Thorneloe counters by indicating that it is only one of three
Federated Universities; the $7.7 million figure cannot be attributed, in total,
to Thorneloe. At first glance, this is an attractive and persuasive argument.
It does not, however, take into account that Huntington, in negotiating its
settlement with Laurentian, has included what is known colloquially as a
"most favoured nation" clause. Quite simply, if Thorneloe is able to
negotiate a better alternative than the agreement negotiated by Huntington,
Huntington is in a position to reopen negotiations with Laurentian to obtain
similar treatment. Therefore, it seems to me that although there are three Federated
Universities involved, their positions are interlinked and interrelated to such
a degree that the $7.7 million calculation is relevant to take into account on
this motion.

The Notices of Disclaimer are, in my view,
central to the Applicant's restructuring. The Disclaimer will result in
millions of dollars of additional tuition and grant revenue remaining within
Laurentian. As noted in both the affidavit of Dr. Haché and the Monitor's
Report, each time a Laurentian student takes an elective course offered through
Thorneloe, revenue associated with that course is transferred from Laurentian
to Thorneloe. Because the Applicant has the capacity to independently offer
students the vast majority of all necessary programs and electives within its
existing cost structure, each course taken by a Laurentian student through
Thorneloe represents lost revenue for Laurentian.

[28]

The CCAA judge also took into account the position of the DIP Lender,
which Thorneloe challenged on a number of grounds. In his view, there was no
basis to question the legitimacy of the DIP Lender or the conditions it put
forward. The DIP Lender was entitled to take into account commercial reality in
assessing its options. The DIP Lender was approved in February 2021, after a
competitive process, with no party objecting and no appeals being filed.

[29]

As for Thorneloes objection to the reluctance of the DIP Lender to
be cross-examined (which Thorneloe renews before this court), he noted that no
affidavit had been filed by a representative of the DIP Lender and that there
was no evidence that the DIP Lender had any ulterior motive in negotiating the
condition to extend additional financing and extend the term.
[1]

[30]

The CCAA judge rejected Thorneloes argument that Laurentian acted
in bad faith, contrary to s. 18.6 of the CCAA.

[31]

The CCAA judge found that the disclaimer would enhance the prospects
of a viable restructuring and also noted the significant compromise and
hardship experienced by other stakeholders.

[32]

Lastly, he considered the third itemized factor (whether the
disclaimer would likely cause significant financial hardship to a party to the
agreement). He recognized the significant financial impact of the disclaimer on
Thorneloe, acknowledging that it could lead to the cessation of its operations.
However, if the disclaimer was not effective, it could lead to an unraveling of
Laurentians restructuring and the collapse of Laurentian, which would have a
significant impact on all faculty, students, the greater community and
Thorneloe. In other words, it could lead to the collapse of not just Laurentian
but of Thorneloe as well. At the end of the day, the least undesirable choice
was to uphold the notice of disclaimer.

[33]

In
separate reasons, he also concluded that the criteria for approving the DIP
Amendment Agreement were met. In reaching that conclusion, he adopted his earlier
reasons for rejecting Thorneloes arguments relating to the DIP financing.

B.

ANALYSIS

Leave Test

[34]

Section
13 of the CCAA provides that any person dissatisfied with an order or a
decision made under the CCAA may appeal from the order or decision with leave.
Leave to appeal in CCAA proceedings is to be granted sparingly
and
only where there are serious and arguable grounds that are of real and
significant interest to the parties.
As this court recently
explained in
Laurentian University of Sudbury (Re)
, 2021 ONCA 199, at
paras. 20-22, this cautious approach is a function of several factors:

First, a high degree of deference is owed to
discretionary decisions made by judges supervising CCAA proceedings, who are
steeped in the intricacies of the
CCAA
proceedings they oversee.
Appellate intervention is justified only where the supervising judge erred in
principle or exercised their discretion unreasonably:
9354-9186 Qu
é
bec inc. v. Callidus Capital Corp.
, 2020 SCC 10, 78 C.B.R. (6th) 1, at paras. 53 to 54.

Second, CCAA proceedings are dynamic. It is
often inappropriate to consider an exercise of discretion by the supervising
judge in isolation of other exercises of discretion by the judge in
endeavouring to balance the various interests:
Edgewater Casino Inc. (Re)
,
2009 BCCA 40, 51 C.B.R. (5th) 1, at para 20.

Third, CCAA restructurings can be time sensitive.
The existence of, and delay involved in, an appeal can be counterproductive to
a successful restructuring.

[35]

In
addressing whether leave should be granted, the court will consider four
factors, specifically whether:

(a)

the proposed appeal is
prima facie
meritorious or frivolous;

(b)

the points on the proposed appeal
are of significance to the practice;

(c)

the points on the proposed
appeal are of significance to the action; and

(d)

whether the proposed appeal will
unduly hinder the progress of the action.

See:
Nortel Networks Corp. (Re)
,
2016 ONCA 332, 130 O.R. (3d) 481, at para. 34.

Leave is Not Warranted

[36]

As we will explain, we refuse to grant leave because the proposed
appeal is not
prima facie
meritorious, it is
not of significance to the practice and granting leave would unduly hinder the
progress of the action. While we agree that the proposed appeal is of
significance to the action, that factor alone is not a sufficient basis on
which to grant leave.

Leave not Prima Facie Meritorious

[37]

Thorneloe proposes that five questions be answered should leave be
granted:

1.

Can the CCAA, a statute whose purpose is to
prevent
bankruptcies, be used by a debtor to eliminate competition and
cause
the bankruptcy of another solvent entity (in this case, another university)?

2.

Should section 32 of the CCAA be interpreted so broadly that it
allows the disclaimer of an agreement that will result in the bankruptcy of the
counter-party, for the purpose of eliminating competition,
and
where
the potential financial gain to the debtor is both uncertain and immaterial?

3.

What inferences should be drawn by the CCAA court where a DIP lender
demands the disclaimer of an agreement that will cause the bankruptcy of the
counter-party or else it will refuse to extend a loan maturity date and advance
further funds, yet the DIP lender refuses to attend an oral examination and
refuses to produce documents and answer questions as to why it demands the
disclaimer?

4.

What is the role of the CCAA Court when confronted with a
transaction condition that calls for the disclaimer of an agreement which the
debtor admits is motivated to eliminate competition, and then presented as a
threat that if the CCAA Court does not uphold the disclaimer, the debtor may
not be able to restructure?

5.

What are the factors applicable on persons to act in good faith
under section 18.6 of the CCAA, and in particular where Laurentian and/or the
DIP lender seek to close down Thorneloe for the admitted motive of eliminating
Thorneloe as a competitor?
[Italics in original.]

[38]

We are not satisfied that the proposed appeal, challenging the CCAA
judges discretionary decision to approve the disclaimer and to refuse to
delete the condition in the DIP Amendment Agreement, is
prima facie
meritorious. In reaching that conclusion we are cognizant that factual findings
are owed considerable deference as are discretionary decisions, absent an
extricable legal error. Each of Thorneloes proposed questions has embedded in it
factual assertions that run contrary to the CCAA judges factual findings and
each challenges the way he exercised his discretion.

[39]

For example, Thorneloes first two proposed appeal questions, about
whether a disclaimer can be used if its effect is to eliminate competition and cause
the bankruptcy of a solvent party, do not raise an extricable legal point,
given the CCAA judges findings.

[40]

On those findings, Laurentian and Thorneloe were not truly competitors.
They were working in a federated arrangement. Thorneloes course offerings
could only be taken up by Laurentian students, and they could compete with course
offerings of Laurentian, only because the parties had entered into the
federated arrangement. Contrary to Thorneloes assertion, there was no
admission by Laurentian that its motive was to eliminate Thorneloe as the
competition. The evidence of Laurentians President, Dr. Haché, was simply that
Laurentian had the capacity itself and the need to provide the courses that the
Federated Universities were providing to Laurentian students.

[41]

Moreover, Laurentian is insolvent and the CCAA judge found that if
Laurentian collapses, Thorneloe will collapse. Thorneloe could only be an
ongoing solvent entity if Laurentian could successfully restructure while
keeping the agreements with Thorneloe in place. But that option was not
available, as the CCAA judge accepted the Monitors view that the disclaimer of
the agreements was necessary for a viable restructuring of Laurentian to
occur.

[42]

As for Thorneloes other proposed appeal questions, the CCAA judge engaged
in a serious and carefully considered exercise that required him to balance the
proposed disclaimer for Laurentian against the detrimental impact on Thorneloe.
He clearly explained what factors he was taking into account in making a
determination under s. 32 and how he weighed competing considerations. He
recognized the serious financial impact that approving the disclaimer could
have on Thorneloe. He addressed Thorneloes argument, which is repeated before
this court, that the financial impact of not disclaiming the Thorneloe
agreements, would be minimal for Laurentian and explained why he disagreed. He
also considered and rejected allegations of bad faith. As the CCAA judge
supervising the proceeding, he was aware of the bigger picture, including the
savings that had already been achieved by Laurentian through the CCAA process. He
addressed Thorneloes arguments relating to the DIP Lender and found that there
was no need to question its legitimacy or the conditions it put forward.

[43]

Fundamentally, he found that the disclaimer would enhance the
prospects of a viable plan of compromise or arrangement, while disallowing it
could lead to the inability of Laurentian to restructure and to Laurentians collapse,
which would also entail the collapse of Thorneloe. The CCAA judge expressed the
choice succinctly and accuratelyit was between allowing the disclaimer, recognizing
the hardship it would cause Thorneloe, and disallowing the disclaimer,
recognizing the hardship it could cause Laurentian and Thorneloe. In our view,
the choice he made cannot be faulted. We would also observe that this
conclusion was available in the absence of any consideration of the position of
the DIP Lender.

[44]

In conclusion, while we recognize the serious financial implications
of the disclaimer for Thorneloe, we are simply not persuaded that there is an
arguable basis for interfering with the CCAA judges factual findings or legal conclusions.

Significance to the Action

[45]

We accept that the proposed appeal is of significance to the action given
the significant implications of the disclaimer for Thorneloe and for
Laurentian. However, the significance of the proposed appeal to the action is
insufficient to justify leave. This courts comment in
Nortel
,

at
para. 95, is apt:

[S]tanding alone, this factor is insufficient
to warrant granting leave to appeal.  To perhaps state the obvious,
typically parties tend to seek leave to appeal a decision that is of
significance to an action.

No Significance to the Practice

[46]

We
are not satisfied that the proposed appeal is of significance to the practice
as the issues raised turn on the application of the law to the particular facts
of the case.

Appeal Would Hinder Progress of the Action

[47]

In our view, there is a risk that an appeal would be a distraction
from the real-time restructuring efforts. Laurentian and the DIP Lender also
raise legitimate concerns that attempting to unscramble the egg through an
appeal would unduly hinder the progress of the CCAA proceeding.

C.

DISPOSITION

[48]

Leave to admit the fresh evidence is granted and leave to appeal is
refused. In the circumstances, there shall be no order for costs.

Alexandra
Hoy J.A.

S.E.
Pepall J.A.

B.
Zarnett J.A.

[1]

In its reply factum on the leave motion, Thorneloe argues
that r. 39.03 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
would have been available to elicit information from the DIP Lender.  It is
unclear whether Thorneloe pursued that procedural route.  That said, and in any
event, it was reasonable for the CCAA judge to propose that written questions
be posed to the Monitor.


WARNING

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

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

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

(a)     any of the following
    offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.R., 2021 ONCA 460

DATE: 20210622

DOCKET: M52556

(C69272)

Brown
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

(Responding
    Party)

and

D.R.

Appellant

(Applicant)

Laurence Cohen, for the applicant

Mabel Lai, for the responding party

Heard: June 15, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

The appellant, D.R.
[1]
,
    applies for release pending the determination of her appeal from convictions
    on: three counts of sexual assault, uttering a death threat regarding the
    complainants father, assault, and assault with a weapon (
R.
    v. R. (D.),
2020 ONSC 5578).

[2]

The applicants two-day trial took place in the Superior Court of
    Justice before a judge alone. The only witnesses were the applicant and the
    complainant.

[3]

On March 11, 2021, the sentencing judge imposed the following sentence:
    (i) 4.5 years for the sexual assaults that occurred after the complainant moved
    in with the applicant in December 2017; (ii) 6 months concurrent on the May
    2018 assault, assault with a weapon, and uttering a death threat; and (iii) 3
    years concurrent on the two counts of sexual assault involving events in
    September 2017. After giving credit for pre-sentence custody, the resulting
    global sentence to serve was 4 years and 174 days:
R. v. R.
    (D.),
2021 ONSC 1808.

BACKGROUND

[4]

The applicant and complainant met at college in September 2017. At that
    time, the complainant was 16 years old and the applicant was 18 years old.

[5]

Twice that September the complainant and applicant went for walks near
    the campus during which the applicant penetrated the complainant. The
    relationship continued and from late December 2017 until late May 2018 the
    complainant lived with the applicant in the applicants mothers home. The
    applicant introduced the complainant to marijuana. In April and May 2018, on
    approximately 15 occasions, the complainant fell asleep after smoking marijuana
    only to awake and find the applicant having sexual intercourse with her.
    Several times the complainant awoke to find the applicant inspecting her vagina
    through a tube from a vaping device.

[6]

At some point, the applicant sent the complainant text messages in which
    she threatened to stab the complainants father with a screwdriver.

[7]

Ten recordings made by the complainant in April and May 2018 were
    introduced at trial. They recorded the applicant screaming at the complainant,
    and sometimes at the complainant and the applicants mother.

[8]

In May 2018, while the complainant was out on a walk, the applicant met
    up with her, physically pulled on the complainant to accompany her and, when
    the complainant said she would call the police, the applicant threw the
    complainants cell phone at her.

[9]

The applicant appeals against conviction and sentence. As described in
    the notice of appeal, the main grounds concern the trial judges assessment of
    the credibility of the applicant and complainant.
[2]
The notice of appeal asserts that the trial judge erred in her credibility
    assessment by:

(i)

Placing undue emphasis on a series of recordings the complainant made of
    conversations with the applicant, which demonstrated fits of rage by the
    applicant;

(ii)

Failing
    to engage in a specific analysis of the sexual assault allegations, especially
    those concerning the two September 2017 sexual assaults, other than examining
    the applicants general abusive behaviour;

(iii)

Rejecting
    the applicants credibility notwithstanding the lack of challenge during
    cross-examination to the applicants evidence regarding the sexual assaults;
    and

(iv)

Failing to
    use the complainants return to the applicants home after the sexual assaults
    and the complainants report to the police as evidence relevant to the
    complainants credibility.

[10]

At the hearing, applicants counsel focused on
    the lack of analysis by the trial judge in her reasons in regard to the sexual
    assault counts. He submitted that the reasons disclose no facts upon which the
    trial judge made her assessment of the applicants credibility, which amounts
    to a misapprehension by the trial judge of the evidence on those counts.
    Counsel further submitted that while the complainants continued relationship
    with the applicant after the assaults was not determinative of her credibility,
    it was a factor that the trial judge should have considered in her assessment
    of the complainants credibility. Her failure to do so constitutes reversible
    error.

[11]

The respondent submits that the applicant has
    failed to demonstrate that her appeal is not frivolous:
Criminal Code
,
    s. 679(3)(a). The respondent acknowledges that if the court finds the applicant
    has discharged her burden on that branch of the test, the applicants release
    is otherwise appropriate on the bail conditions in the draft order, which
    substantially mirror those in effect at the time of the trial.

[12]

Since the transcripts of the trial are not yet available, on this
    application the applicant relies upon the written reasons of the trial judge.

HAS THE APPLICANT ESTABLISHED THAT HER APPEAL
    IS NOT FRIVOLOUS?

[13]

The bar for establishing that an appeal is not
    frivolous is very low:
R. v. Oland
, 2017 SCC 17, [2017] 1
    S.C.R. 250, at para. 20. As described by Watt J.A. in
R. v.
    Manasseri
, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: An
    appeal is not frivolous if the proposed grounds of appeal raise arguable
    issues. An applicant need not establish a likelihood, much less a certainty of
    success on appeal, but must be able to point to a viable ground of appeal that
    would warrant appellate intervention if established.
The purpose of the
    not frivolous threshold is to require the applicant to demonstrate that the
    appeal has some merit. If this were not so, the appellate process could be
    abused by those intent on forestalling the execution of a custodial sentence:
R.
    v. T.S.D
., 2020 ONCA 773, at para. 24.

[14]

Credibility determinations by a trial judge attract a high degree
    of deference; the sufficiency of a trial judges reasons must be assessed in
    light of that deference:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R.
    639, at para. 11;
R. v. G.F.
, 2021 SCC 20, at
    para. 81. However, as stated in
R. v. Dinardo
, 2008 SCC 24,
    [2008] 1 S.C.R. 788, at para. 26:

Nevertheless, a failure to sufficiently articulate how
    credibility concerns were resolved may constitute reversible error (see
R. v. Braich
, [2002] 1 S.C.R. 903, 2002 SCC
    27, at para. 23).  As this Court noted in
R. v. Gagnon
, [2006] 1 S.C.R. 621, 2006 SCC
    17, the accused is entitled to know why the trial judge is left with no
    reasonable doubt.

[15]

The trial judges assessment of the applicants
    credibility proceeded in the following fashion: the trial judge rejected the
    applicants explanation of texts she sent to the complainants mother and the
    threats about her father as far-fetched and not making sense; she then
    concluded that the audio recordings confirmed the applicants animus against
    the complainants family; she found that the applicants explanation about
    restraining the complainant in May 2018 from leaving did not make sense; the
    applicants denial of ever dosing the complainant with marijuana was
    contradicted by text messages between the applicant and a friend; and there
    were inconsistencies between the applicants evidence at trial and her
    statement to the police of the effect of steroids on the applicants behaviour.
    That led the trial judge to conclude, at para. 84:

For all of these reasons, I did not find [the
    applicant] to be a credible witness. Her evidence was incredible, defied logic
    and common sense and is contradicted by trustworthy evidence. I do not believe
    her evidence. Given my findings that [the applicant] willingly mislead the
    court, her evidence does not raise a reasonable doubt.

[16]

The trial judge then considered whether the
    Crown had met its burden on each count, in accordance with the principles in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742. The trial judge started with the count
    alleging the applicant uttered a death threat to the complainant on May 24,
    2018 and acquitted. But the trial judge then convicted on the count concerning
    the uttering a death threat in respect of the complainants father.

[17]

The trial judge next found that the complainant
    was a credible witness and did not view the complainants continuation in the
    relationship after the alleged offences as detracting from her credibility. She
    held that the audio recordings demonstrated how the applicant abused and
    manipulated the complainant and accepted the complainants explanation about
    why she stayed in the relationship.

[18]

Accordingly, whatever relevance the
    complainants continuation of the relationship after the sexual assaults might
    possess in light of the decision of the Supreme Court in
R. v. A.R.J.D.
,
    2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2, the trial judge in fact examined
    the evidence on that issue, accepted the complainants explanation, and did not
    regard the conduct as detracting from the complainants credibility. On the
    face of her reasons, the trial judge did not commit the error now alleged by
    the applicant.

[19]

The trial judge continued her examination of the
    evidence on the counts by accepting the complainants version of the events of
    May 24, 2018 and convicted the applicant on the assault and assault with weapon
    counts.

[20]

The trial judge concluded her reasons by dealing
    with the three counts of sexual assault. In respect of the count concerning the
    sexual assaults while the complainant lived with the applicant, the trial judge
    wrote at paras. 109-112:

Count 7 alleges that during the time [the
    complainant] and [the applicant] were living together, [the complainant] would
    wake up to [the applicant] sexually assaulting her, sometimes with a vaping
    tube. I accept [the complainants] testimony that [the applicant] introduced
    her to marijuana in an effort to calm her down and lessen the conflict between
    them. Her evidence on this point is corroborated by the text messages sent by
    [the applicant] to her friend.

The defence contends that there is no
    corroboration with respect to these sexual assaults. I disagree. The audio
    recordings made leading up to this timeframe demonstrate [the applicants]
    pattern of obsessive and abusive behaviour towards [the complainant]. The level
    of rage demonstrated by these audio recorded tirades is difficult to describe
    in words. It is jarring, shocking, and horrifying. Not only is the level of
    rage displayed by the volume with which [the applicant] yells, but the words
    screamed demonstrate how [the applicant] tried to manipulate [the complainant].
    For example, [the applicant] turned a situation where [the complainant] is
    clearly concerned about the steroids [the applicant] was using into a situation
    where [the complainant] is led to believe that she has done something wrong in
    hiding the drugs.

I am cognizant of the fact that there is no
    mention of the sexual assaults on the audio recordings. It was not [the
    complainants] evidence that she recorded every argument with [the applicant].
    I accept her evidence that arguments that occurred immediately after she was
    awoken would have been difficult, if not impossible, to surreptitiously record.
    [The complainant] testified that she made the recordings to remind herself what
    [the applicant] was capable of, not to create corroborative evidence to be used
    in a future court proceeding. Although there is no mention of the sexual
    assaults on the audio recordings, I find that they corroborate the overall way
    that [the applicant] treated [the complainant] throughout their relationship.
    They demonstrate [the applicants] hatred of women and her need to dominate,
    manipulate, demean and intimidate [the complainant]. This is consistent with
    [the applicant] not respecting [the complainants] physical and emotional
    integrity including sexually assaulting her.

I therefore find [the applicant] guilty of
    Count 7, that being that she sexually assaulted [the complainant] while she
    slept during the months of December 2017 through May 2018.

[21]

The trial judge then turned to the two counts
    regarding the sexual assaults that took place when the complainant and
    applicant went on walks in September 2017 stating, at paras. 113-114:

Counts 3 and 4 in the indictment allege that
    [the applicant] sexually assaulted [the complainant] in the woods near campus
    on two occasions in September 2017. [The applicant] categorically denies this.
    For reasons given I do not accept [the applicants] evidence, nor does it raise
    a reasonable doubt. Having found [the complainant] to be an honest, credible
    and forthright witness I accept her evidence that these sexual assaults
    occurred as she described them. I do not find her less worthy of belief because
    she failed to report these assaults immediately and continued to see [the
    applicant].

Therefore, I find [the applicant] guilty of
    Counts 3 and 4. Specifically, I find that she sexually assaulted [the
    complainant] on September 17, 2017 and September 24, 2017.

[22]

Contrary
    to the applicants submissions, the trial judge in fact engaged in a specific
    analysis of the sexual assault counts. On the face of her reasons, she did not
    commit the error the applicant alleges.

[23]

Since the applicant has not filed the transcript of her evidence
    at trial, her submission that the trial judge erred by rejecting the
    applicants credibility notwithstanding the lack of challenge during cross-examination
    to the applicants evidence regarding the sexual assaults cannot be assessed in
    the concrete context of what took place at trial. However, I would make two
    observations.

[24]

First, unlike the circumstances in
R. v. Paris
(2000),
    150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22, leave to appeal refused, [2001]
    S.C.C.A. No. 124, upon which the applicant relies, here the complainant
    testified that the applicant had sexually assaulted her
before
the applicant took the stand to give her evidence.

[25]

Second, where, as in this case, the accused is tried on a
    multi-count indictment, the presumptive rule that evidence on one count of an
    indictment may not be used to prove the guilt of the accused on another count
    where the counts do not arise out of the same events does not apply to the
    assessment of witness credibility:
R. v. T.C.
, 2019 ONCA 898, 383
    C.C.C. (3d) 341, at para. 45. As stated by the Supreme Court in
R. v.
    P.E.C.
, 2005 SCC 19, [2005] 1 S.C.R. 290, at para. 1:

The verdict on each count of an indictment must, of course, be
    based on evidence admissible with respect to that count; in assessing the
    credibility of each witness, including the accused, the trial judge was
    entitled, however, to consider the totality of the evidence given by that
    witness.

[26]

Consequently,
    it is difficult to see, on the record before me, how the trial judge erred by
    applying her extensive reasons on why she did not regard the applicant as a
    credible witness following her review of several of the counts to the
    assessment of the applicants credibility that informed her analysis of the
    sexual assault counts.

[27]

In
    sum, while the not frivolous criterion sets a very low threshold, given the
    detailed reasons of the trial judge on the assessment of credibility, I am not persuaded
    that the applicants credibility-based grounds of appeal exceed that very low
    threshold.

DISPOSITION

[28]

For the reasons set out above, I dismiss the applicants
    application for bail pending appeal.

David Brown J.A.

[1]
At the time of the offences, the applicant identified as a man.
    Mid-trial, the applicant advised the trial judge that she now identifies as a
    woman, with she/her pronouns.

[2]

Although
    the notice of appeal also seeks leave to appeal from sentence on the basis that
    the sentence was unduly harsh and unfit given the applicants age and lack of a
    criminal record, the applicant did not make submissions about this ground on
    the application for bail pending appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barton, 2021 ONCA 451

DATE: 20210623

DOCKET: C64896

Feldman, Miller and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zachary Barton

Appellant

Nathan Gorham and Breana Vandebeek, for
    the appellant

Robert Hubbard and Katie Doherty, for
    the respondent

Heard: June 17, 2021 by video
    conference

On appeal from the convictions entered
    on February 16, 2017 by Justice Suhail A.Q. Akhtar of the Superior Court of
    Justice, sitting with a jury.

REASONS FOR DECISION

OVERVIEW

[1]

Zachary Barton was convicted by a jury of
    firearms-related offences. During a warrantless search, police found a
    semi-automatic handgun inside a planter located in a common hallway outside Mr.
    Bartons apartment. The next day, while executing a search warrant, police
    found ammunition for the firearm and a bullet-proof vest inside Mr. Bartons apartment.

[2]

Mr. Barton appeals his convictions. He contends
    that the trial judge erred in concluding the semi-automatic handgun was not
    obtained in a manner that infringed or denied his rights under the
Canadian
    Charter of Rights and Freedoms
, given the causal, contextual, and temporal
    links he alleges between the search of the planter and what was conceded by the
    Crown to be unconstitutional police conduct in seeking to search his apartment
    without a warrant. In the alternative, Mr. Barton argues that the trial judge
    erred in finding that he did not have a reasonable expectation of privacy in
    the hallway or the planter.

ANALYSIS

[3]

We agree with Mr. Bartons submission that the
    trial judge erred in concluding that the semi-automatic handgun was not
    obtained in a manner that infringed his rights or freedoms in the meaning of
    s. 24(2) of the
Charter
.

Causal connection under s. 24(2)

[4]

Police officers discovered the semi-automatic
    handgun as a result of a step they had taken to gain unlawful warrantless entry
    into Mr. Bartons apartment. Specifically, they moved the planter in the
    hallway to assist their efforts in breaching the front door. After moving the
    planter, the officers observed a string protruding from its cylinder. Inferring
    that the string might be attached to a key that would give them warrantless
    entry to Mr. Bartons apartment, the officers pulled the string which led to a bag
    secreted in the planter. They opened the bag and discovered the semi-automatic
    handgun inside.

[5]

Since the semi-automatic handgun was discovered as
    a result of a step officers had taken to gain unlawful entry to the apartment,
    the discovery is causally connected to the
Charter

breach: see,
R. v. Goldhart
, [1996] 2 S.C.R. 463, at paras. 33-35. The trial judge
    erred in finding otherwise.

Contextual and temporal connections under s.
    24(2)

[6]

The trial judge also erred in drawing the
    conclusion on these facts that the contextual and temporal connections between
    the unlawful entry of the apartment and the discovery of the semi-automatic
    handgun were remote and attenuated. We see no basis in the evidence for these holdings.

[7]

We are therefore persuaded that the
    semi-automatic handgun was unconstitutionally obtained. As a result, reference
    to the discovery of the semi-automatic handgun must be excised from the
    information to obtain the search warrant.

Related issues necessitating a new trial

[8]

Unfortunately, we are not in a position to
    determine whether this outcome undermines the grounds for the search warrant.
    Having decided that the semi-automatic handgun was not unconstitutionally
    obtained, the trial judge upheld the warrant without resolving the Crowns
    fall-back position that, even without the unconstitutionally obtained evidence,
    the warrant could be upheld at Step Six of the test from
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421 by disclosing and considering redacted information that
    was before the issuing judge. That issue cannot be resolved on the record
    before us.

[9]

A new trial is therefore required to determine
    whether excision of the discovery of the semi-automatic handgun from the
    warrant information will lead to a finding that the later warranted search was
    unconstitutional. This finding could, in turn, have an impact in deciding whether
    to exclude the semi-automatic handgun itself, since additional
Charter

breaches occurring during the same investigation can enhance the
    seriousness of each of the
Charter

breaches: see e.g.,
R.
    v. Davidson,
2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48.

[10]

Moreover, if the ammunition and vest are
    excluded at the retrial, this would not only resolve the possession charges
    with respect to those items, but could affect the strength of the evidence
    regarding Mr. Bartons possession of the semi-automatic handgun. It is
    therefore prudent for us to refrain from attempting to determine the
    admissibility of the semi-automatic handgun, or to resolve any of the charges
    before us, based on incomplete information.

[11]

It is also unnecessary for us to determine
    whether Mr. Barton had a reasonable expectation of privacy in the hallway or in
    the planter that could support an additional s. 8
Charter
violation. That
    issue can be determined by the trial judge during the retrial.

CONCLUSION

[12]

Accordingly, we set aside Mr. Bartons convictions
    and order a retrial on all charges.

K.
    Feldman J.A.

B.W.
    Miller J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bayford v. Boese, 2021 ONCA 442

DATE: 20210622

DOCKET: C67599

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

Brenda Bayford

Plaintiff (Respondent)

and

Brian
    Boese
, Kaitlyn Boese, Alexander Boese,

Erin McTeer and Michelle
    McTeer

Defendants (
Appellant
)

Earl A. Cherniak, Q.C., Ian M. Hull and Doreen Lok Yin
    So, for the appellant

Taayo Simmonds, for the respondent

Heard: December 16, 2020 by video conference

On appeal from the
    judgment of Justice Sylvia Corthorn of the Superior Court of Justice, dated October
    1, 2019.

Harvison
    Young J.A.:

[1]

The appellant, Brian Boese, appeals from the
    trial judges judgment declaring that his brother Bruces will had been validly
    executed in accordance with s. 4(1) of the
Succession Law Reform Act
, R.S.O. 1990, c. S.26 (SLRA)
. The only issue on this appeal is whether the trial judge erred in
    finding that the respondent Brenda Bayford had discharged her burden to prove
    the formal validity of the will, which she claimed to have found a number of
    weeks after his death in June 2015.

[2]

For the reasons that follow, I conclude that the
    appeal must be allowed on the grounds that the trial judge fell into palpable
    and overriding error. Having carefully reviewed the record before us and the
    submissions of counsel, I am of the view that the trial judge misunderstood the
    appellants position and, as a result, mistakenly considered the expert
    evidence to be irrelevant. This tainted her approach to the rest of the
    evidence.

(1)

Factual background

[3]

Bruce Boese was the owner of a farm. He never married and had no
    children. Brenda Bayford was a long-time friend of Bruce. She had assisted
    Bruce with the operation of the farm for the two decades before his death and
    described him as her best friend. Bruce executed a will in 1992, which named
    his parents as the sole beneficiaries of his estate. Because they had
    pre-deceased Bruce, Bruces estate would pass on an intestacy to Brian (50%)
    and the two daughters of his deceased sister Rhonda (50%) in the absence of a
    subsequent valid will.

[4]

In 2009, Bruce named Brenda as his attorney for property and personal care.
    In the summer of 2013, Ms. Fraser, the legal assistant of Bruces long-time lawyer,
    Timothy Colbert, prepared a draft will. There was no allegation that the substantive
    terms of the will reflected anything other than the instructions given by Bruce
    to Mr. Colbert. Ms. Fraser prepared the will based on instructions from Mr.
    Colbert, and it was sent to Bruce for review and comment. Bruce did not,
    however, attend at Mr. Colberts office to revise and/or execute that document
    before he died. There is no dispute that the 2013 draft will named Brenda as
    the sole trustee of the estate nor that it left her the farm property.

[5]

The 2013 will is dated August 15, 2013. The date is typed and appears on
    the third and final page of the document. It has the word DRAFT stamped on
    every page. Two copies were marked as exhibits at trial. One copy included only
    Bruces signature with no witness signatures (Version 1). Version 2
    included Bruces signature and those of the two witnesses, Ms. Gordon and Ms.
    Desarmia.

[6]

The central factual issue at trial was whether, as Brenda claimed,
    Version 2 had been signed and witnessed before Bruces death, or whether, as
    Brian claimed, the witnesses signatures had only been added after Bruces
    death and after Brenda discovered that Version 1 was not valid without the
    signatures of witnesses.

[7]

After Bruces death, Brenda searched for a will. She testified that she
    first found Version 1 of the 2013 will that had only Bruces signature, but not
    those of the witnesses. She took it to Mr. Colberts office the day after
    Bruces death and testified that she was surprised to find that Mr. Colberts
    office did not have a fully executed copy of the Will. On that occasion, Mr.
    Colberts assistant, Ms. Fraser, made a copy of the original of Version 1 and
    returned it to Brenda. Although there is no dispute that Ms. Fraser also
    advised Brenda on that occasion that, Version 1 was not valid without having
    been witnessed, other aspects of that conversation were disputed and will be
    discussed below.

[8]

Brendas evidence, accepted by the trial judge, was that a few weeks
    later, after having run into the one of the two witnesses who subsequently
    testified that they witnessed Bruce sign the will on August 15, 2013, she
    returned to Bruces house and searched again. This time, she testified, she
    found Version 2, signed and witnessed, on top of a kitchen cupboard, and not in
    the filing cabinet where she had found Version 1.

[9]

Brians position at trial was that Brenda, with the cooperation of Ms.
    Desarmia and Ms. Gordon, created Version 2 after Bruces death, and after she
    discovered that Version 1, though signed, was not valid. The fact that the
    original of Version 1 was never produced at trial supported this inference, as
    did the numerous inconsistencies in Brendas evidence at trial, all of which
    the trial judge resolved in her favour. In particular, her explanations as to
    what happened to the original Version 1 were inconsistent and lacking in
    credibility.

[10]

On
    appeal, Brian maintains his position that the reason that the original of
    Version 1 has never been produced is that this is the document that was
    witnessed at some point in the weeks following Bruces death. His central
    argument is that the trial judge misapprehended the content and significance of
    expert evidence which was that Bruces signatures on Version 1 and Version 2
    were copies of one another, and that this misapprehension tainted the rest of
    her findings. The handwriting expert was called to compare the signatures
    between Version 1 and Version 2. At trial, neither original version was
    available, and so the trial judge, and the handwriting expert, had to rely on
    the photocopies.

[11]

Brenda
    has filed a motion for fresh evidence because the original of Version 2 has
    been found, having been produced by her former lawyers. As I will explain later
    in these reasons, I would not admit this fresh evidence as it is unlikely  to
    be conclusive of the issues on appeal, and it is not necessary to deal with the
    issues fairly.

(2)

The evidence

[12]

Because
    a number of inconsistencies in the evidence form part of the context for the
    assessment of the expert opinion, it will be useful to set them out along with
    the trial judges findings on those points.

(a)

The whereabouts of the original of Version 1

[13]

No
    original of either Version 1 or Version 2 was produced at trial. Brenda
    testified at trial that after she found Version 2, she visited a law firm and
    left the originals of both Version 1 and Version 2 with the lawyer she retained.
    Under cross-examination, however, she was taken to her examination for
    discovery where she was asked what had become of the original of Version 1 and
    responded that she had misplaced it. When presented at trial with that
    response, she stated that she did not remember that series of questions, saying
    that I know it went to the lawyer, and I may have said that, but everything
    went to my lawyer.

[14]

The
    trial judge found that the answer at trial was simply a correction of her
    answer at discovery. She went on to observe that the existence of the original
    of Version 1 does not affect the validity of Version 2 (at para. 61). This
    raises the concern that the trial judge was not alive to the appellants
    position that the reason there was no original of Version 1 is that it had
    become Version 2. She also held, at para. 63, that [i]t was not incumbent upon
    Ms. Bayford to produce the original of Version 1 but rather upon Brian as it
    was significant to his theory of the case.

(b)

The evidence of Ms. Desarmia and Ms. Gordon

[15]

Ms.
    Desarmia and Ms. Gordon, friends of Brenda who also knew Bruce, both testified
    that they had gone to Bruces farm on August 15, 2013 for different reasons. Ms.
    Desarmia went to help Brenda work on a Halloween display that Brenda was
    planning for her house, and Ms. Gordon went to get tomatoes for hamburgers she
    was planning to cook that evening for a family celebration.

[16]

According
    to Ms. Desarmia, she saw Bruce at the farm, who expressed frustration about not
    being able to get his will done. Ms. Desarmia explained that he did not need to
    go to his lawyers office to get his will done, and she offered to assist by
    witnessing his signature on the will. Ms. Gordon testified that Bruce asked her
    if she would do him the favour of witnessing his will. Both witnesses testified
    that they witnessed Bruce sign the will and then each signed the will in the
    kitchen.

[17]

There
    were a number of discrepancies in the precise details of the two witnesses
    signature, for example, who was standing and who was sitting, whether they all
    used the same pen, and the order of signatures. The trial judge found those all
    to have been in keeping with the frailty of human memory (at para. 80) and in
    keeping with the nature of the event (at para. 84) and accepted their
    evidence.

(c)

The visit to the lawyers office the day after Bruces death

[18]

Brenda
    testified that the day after Bruce died, she took Version 1, which had Bruces
    signature in ink, to Mr. Colberts office where she spoke to his assistant, Ms.
    Fraser. Brenda stated that she was taken aback to discover that the office did
    not have the fully executed version of the will. The trial judge found that Ms.
    Fraser made a photocopy of Version 1 and returned the original Version 1 to
    Brenda.

[19]

Ms.
    Fraser testified at the trial. Although she testified that Brenda said, in
    response to Ms. Frasers explanation that because the will was not witnessed,
    it was not valid, I saw him sign it, Brenda denied having made that comment
    and the trial judge accepted Brendas evidence on the point. She also accepted
    that Brenda was taken aback that there was no original fully executed version
    of the will in light of the fact that the version Brenda had was stamped
    DRAFT.

(d)

Finding Version 2

[20]

Brian
    called Mr. Leonard Stavenow, the proprietor of an equipment rental store in the
    area. Brenda had gone into the store about two weeks after Bruces death, and
    spoke to Mr. Stavenow about having lost her best friend. He testified that Brenda
    confided in him about the status of the will, and that she had said both it
    was not signed and that the rough copy shows intent.

[21]

At
    trial, Brenda stated that she did not recall telling Mr. Stavenow that the will
    was not signed. The trial judge noted that Brenda was taken to a transcript
    from her examination for discovery, where she had first said that she told Mr.
    Stavenow that the will was not signed and then had changed or corrected her
    answer to say that she told Mr. Stavenow that the will was not witnessed. The
    trial judge found no contradiction between Brendas evidence at trial and her
    evidence on examination for discovery on this point. The trial judge also found
    that although Mr. Stavenow presented as a straightforward person and was a
    credible witness, the conversation had lasted only three to five minutes and
    concluded that he had misunderstood what Brenda said to him. She concluded that
    he was not reliable as to what Brenda had said about Version 1.

[22]

Brenda
    testified that about three or more weeks after Bruces death, she had a chance
    meeting with her friend Ms. Desarmia and told her that she could only find
    Version 1. This meeting occurred after Brenda attended at Mr. Stavenows store.
    Ms. Desarmia, in response, informed her that she had in fact witnessed Bruces
    signing of the 2013 will. Brenda immediately returned to the farm and searched
    for an executed and witnessed will, which she ultimately found in an envelope
    on top of a cupboard in the kitchen (Version 2). Brenda testified that although
    she was not in the kitchen at the time that the will was executed on August 15,
    2013, she was outside around the machine shed about 100 feet away. This raises
    the question as to why she would not have known at the time that Bruce had
    asked them to witness the will, particularly given Ms. Desarmias evidence that
    she remained at the farm for a few hours after that to assist Brenda with the
    Halloween display.

[23]

The
    trial judge accepted Brendas evidence on all points where it contradicted with
    that of other witnesses. She also accepted her evidence about the circumstances
    and place of her discovery of Version 2 of the will.

(e)

Ms. Lewis expert evidence

[24]

Against
    this backdrop, the evidence of the handwriting expert was important. Ms. Lewis was
    qualified to give expert evidence on the following 2 issues:

(i)

Whether
    Version 1 and Version 2 were forgeries, based on a comparison with other
    documents that contain signatures that were known to be Bruces; and

(ii)

Whether Bruces signature that appears in Version 1 and Version 2 are
    the same  with one signature being a copy of the other.

[25]

As
    explained above, because no originals were available at trial, Ms. Lewis had
    only the two photocopies to compare. With respect to the first question, Ms.
    Lewis testified that she was unable to draw a conclusion as to whether Bruce
    was the person who signed the two versions. With respect to the second
    question, however, she testified that those two questioned documents  had
    copies of the same signature. She explained that she had prepared a transparency
    chart of the two signatures from the two versions of the will and that she had
    positioned one signature on top of the other to make it easy to look at them
    and see that the design is the same, the spacing is the same, the details are
    accurate.

[26]

She
    explained that this was important because in forensic document examination, one
    of the rules is that no one writes exactly the same way twice because
    handwriting doesnt really allow us to precisely reproduce a signature in every
    detail just because the active writing always includes a little bit of natural
    variation in the writing. She used the transparency overlay in this case
    because she wanted to show the two questioned signatures together because they
    are the same signature, in my opinion. Using the transparency was useful
    because one could see that each signature fit accurately over the other. She
    concluded that [t]he two signatures were copied from one signature. I should
    say they are one signature.

(3)

The law

[27]

Questions
    of fact are reviewable on a standard of palpable and overriding error, while
    questions of law are reviewable on a standard of correctness:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-10.

[28]

A
    misapprehension of evidence may refer to a failure to consider evidence
    relevant to a material issue, a mistake as to the substance of the evidence, or
    a failure to give proper effect to the evidence:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. Doherty J.A. noted, at p.
    218, that most errors that constitute a misapprehension of evidence will not be
    regarded as involving a question of law. However, appellate intervention is
    warranted where the misapprehension of evidence is palpable and overriding,
    such that it is plain to see or obvious and goes to the very core of the
    outcome of the case: see
Waxman v. Waxman
, 2004 CanLII 39040 (Ont. C.A.), at
    paras. 296-97, leave to appeal refused, [2004] S.C.C.A. No. 291;
Carmichael
    v. GlaxoSmithKline Inc.
, 2020 ONCA 447, 151 O.R. (3d) 609, at para. 125,
    leave to appeal refused, [2020] S.C.C.A. No. 409.

[29]

The
    onus of proving the formal validity of a will lies on the propounder of the
    will, in this case, the respondent Brenda: see
Vout v. Hay
, [1995] 2 S.C.R.
    876, at p. 887.

[30]

The
    requirements for the formal validity of a will are set out at s. 4(1) of the
    SLRA, as it was at the relevant time:

(a) at its end [the will] is signed by the testator
    or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature
    in the presence of two or more attesting witnesses present at the same time;
    and

(c) two or more of the
    attesting witnesses subscribe the will in the presence of the testator.

[31]

The
    purpose of the statutory requirement of two or more witnesses is to prevent
    fraud by ensuring that there is probative evidence to support a conclusion that
    the testator wanted to give effect to the contents of their will by signing it
    in the presence of others. The testators intent is thus irrelevant to the
    formal validity of a will.

(4)

Analysis

[32]

A
    review of the evidence of the handwriting expert, Ms. Lewis, along with the
    positions of the parties at trial as well as the other evidence and the trial
    judges reasons, indicates that the trial judges main error was misapprehending
    the import of the experts evidence. This bore on the central issue of the
    case, which was whether Bruce signed the will in 2013 before two attesting
    witnesses who were present at the time and who signed as witnesses before him.

[33]

First,
    the trial judge understated the content of Ms. Lewis opinion. Ms. Lewis did
    not say merely that it was completely likely that Bruces signature on
    Version 1 and Version 2 were copies of the same signature. She said, and
    demonstrated with the overlay of the two signatures, that they were copied from
    one signature. While Ms. Lewis stated that it is always preferable to have
    originals, these were above average copies and she was very satisfied that
    they were accurate.

[34]

The
    most serious problem with the trial judges reasons with respect to the experts
    evidence, however, is that it is not at all clear that she appreciated its
    significance. The experts evidence was that Bruces signatures were the same
    signature or copies of each other and that no one signs the exact same way
    twice. In essence, this meant that Bruce could not have signed both Version 1
    and Version 2 separately with original signatures. While the expert did
    acknowledge in cross-examination that tracing could explain this, she also
    stated that she did not include this possibility in her report because the
    evidence I observed didnt lead me to believe it was a possibility.

[35]

It
    was established in Brendas and Ms. Frasers evidence that the document Brenda
    brought to Mr. Colberts office, Version 1, had an ink signature. It was
    similarly accepted by the trial judge that Brenda had brought the original Version
    1 will to Mr. Colberts office. One of the possible implications then, of the
    experts evidence, was that Bruces signature on Version 2 was a reproduced copy
    of Version 1. The original Version 1, which was unwitnessed when Brenda found
    it after Bruces death, could also have been converted into Version 2 by having
    witnesses sign it directly.

[36]

There
    is nothing in the trial judges reasons to indicate that she understood that if
    the signature on Version 2 was a copy from or the same as the signature on the
    unwitnessed Version 1, and not simply another original signature that Bruce had
    signed on a separate occasion in the presence of the two witnesses, there would
    be significant reason to doubt the validity of the Version 2 will. Put simply, it
    is not clear that the trial judge understood that the experts evidence supported
    an inference that the two witnesses signed Version 1 after Bruces death. She
    specifically observed that it was in any event, difficult to understand how
    Ms. Lewis evidence is helpful to Brian. Her statement that Brians description
    of Ms. Lewis evidence as clear and equivocal was an overstatement is inaccurate.
    The bottom line of Ms. Lewis evidence was, as I have set out, very clear.
    Apart from this comment, the trial judge did not indicate whether or not she
    was accepting any, all or none of Ms. Lewis evidence.

[37]

The
    trial judges failure to expressly grapple with this evidence was a serious
    error in the circumstances of this case. Had she clearly understood the
    potential implications of Ms. Lewis conclusion that the two signatures were
    copies of the same signature, she would most likely have approached the other
    evidence somewhat differently, including the missing Version 1 with Bruces ink
    signature on it and the inconsistencies in Brendas evidence regarding how she
    discovered Version 2 of the will.

[38]

For
    instance, there is nothing to indicate that the trial judge understood the
    significance of the missing original Version 1 with Bruces signature on it,
    particularly given the fact that, as the trial judge did note, Brenda gave
    inconsistent explanations as to what had happened to it. The trial judge stated
    twice that the existence of the original Version 1 does not affect the validity
    of Version 2. To the contrary, the significance and relevance was the
    possibility that the original Version 1 was the very version that Brenda had
    arranged to have the witnesses sign, or that the signature on Version 1 was
    copied to create Version 2 which was then signed by the two witnesses. The
    experts evidence that the signatures were copies of each other supported these
    theories.

[39]

In
    addition, had the trial judge understood the implications of the experts
    evidence in light of Brians theory of the case, she would likely have
    approached Brendas evidence on how she discovered Version 2 differently. In
    accepting Brendas evidence, the trial judge noted:

The theory of Brians case is that Ms. Bayford colluded,
    conspired, or connived with Ms. Desarmia and Ms. Gordon to create Version 2. I
    find that Ms. Bayfords conduct in the days and weeks following Bruces death
    runs contrary to that theory. Ms. Bayfords conduct enhances the credibility of
    her evidence as to when and how she discovered the existence of Version 2:

·

Why would she, on the day following Bruces death, attend at Mr.
    Colberts office with Version 1 and acknowledge to Ms. Fraser that she did not
    have a fully-executed version of the 2013 Will?

·

Why, approximately 12 days after speaking with Ms. Fraser, would
    Ms. Bayford acknowledge publicly (to Mr. Stavenow in front of others) that the
    2013 Will was unsigned in some way?

[40]

The
    trial judges questions suggest that she
misunderstood Brians
    position and mistakenly considered the expert evidence to be irrelevant
.
    First, the uncontradicted evidence that Brenda took Version 1 to Mr. Colberts
    office the day after Bruces death is entirely consistent with Brians theory
    of the case that, at this point, there was no Version 2. It is also consistent
    with Ms. Frasers evidence that Brenda said I saw him sign it when Ms. Fraser
    informed Brenda that, because it was not witnessed, Version 1 was not a valid
    will. This suggests that Brenda did not realize that the will needed to be
    witnessed by two witnesses to the testators signing of the will. In other
    words, a plausible answer to the first question is that when Brenda took
    Version 1 into Mr. Colberts office, she thought it was valid and was taken
    aback, not upon being told that the office did not have a fully executed copy
    of the will, but upon being told that Version 1 was not valid. The trial judge
    accepted Brendas evidence on the point. Further, rather than ask
why
Brenda brought Version 1 to Mr. Colberts office
    after Bruces death, the experts evidence should have caused the trial judge
    to ask
how
Brenda could attend the office with an
    original of Version 1, with a yet to be discovered original Version 2 existing
    contemporaneously in the farms kitchen and containing an identical signature.

[41]

Second,
    there is an obvious response on the evidence presented at trial to the second
    question posed by the trial judge with respect to Brendas conversation with
    Mr. Stavenow. That response is that when she visited Mr. Stavenows store, Brenda
    had not yet considered the possibility of creating Version 2 out of the signed
    Version 1. This explanation would be consistent with Brians theory of the case
    and the experts evidence that Bruces signatures on both versions were the
    same or copies of each other. It would also be consistent with the events as
    found by the trial judge, which was that Brendas visit to Mr. Stavenows store
    preceded both her chance meeting with Ms. Desarmia and her discovery of Version
    2 several weeks after Bruces death. However, there is no indication that the
    trial judge appreciated this possibility, despite Brians argument regarding Brendas
    collusion to create Version 2 and the expert evidence.

[42]

As
    I outlined earlier, there were a number of inconsistencies in Brendas evidence.
    While a trial judges findings of fact attract significant deference, and the
    bar for misapprehension of evidence is high, it is met in this case. Had she
    been alive to the essence of Brians claim and the significance of Ms. Lewis
    evidence, which she did not reject, the trial judge still might have resolved
    the inconsistencies as she did. But her dismissal of all of the inconsistencies
    in Brendas favour in the absence of a full appreciation of the substance and
    significance of the experts evidence went to the heart of this case and its
    outcome. The misapprehension of the expert evidence was obvious and essential to
    her conclusion that Version 2 was valid and constitutes palpable and overriding
    error.

[43]

The
    trial judge made a number of other, related errors. She stated correctly that
    intent is not relevant to the formal validity of a will, and she correctly
    indicated that the evidence of Bruces intention was inadmissible. However, she
    included Brendas evidence of Bruces intention to change his will in her
    recitation of the facts and noted at the beginning of her analysis, at para.
    32, that Brian is not alleging that the 2013 Will reflects anything other than
    the instructions given by Bruce to Mr. Colbert with respect to the substantive terms
    of the will, which suggests that intent did play a part in her conclusion that
    Version 2 was valid.

[44]

In
    addition, the trial judge erred in stating that it was up to Brian to produce
    the original of Version 1, stating that Ms. Lewis was working with only
    photocopies and that Brian did not call any evidence to explain why Ms. Lewis
    was not given the opportunity to inspect the original documents: at para. 68.
    This comment is problematic for two reasons. First, it was Brenda who, as the
    propounder of the will, had the burden of proving its formal validity. Second,
    it was precisely the fact that she was unable to provide the original of
    Version 1 that gave rise to this issue of validity.

[45]

In
    short, given the experts evidence which the trial judge misinterpreted but did
    not reject, the trial judge erred in finding that Brenda had discharged her
    onus of proving the formal validity of the will. As the signatures were the
    same, the absence of the original Version 1 was a serious problem which was
    not overcome by the other evidence, whose frailties were not addressed or
    arguably even appreciated by the trial judge in light of her misunderstanding
    of the experts opinion.

[46]

For
    these reasons I am satisfied that Brenda did not meet her onus of establishing
    the formal validity of the will.

(5)

The fresh evidence

[47]

Brenda
    seeks to introduce the original Version 2 of the will as fresh evidence on this
    appeal. She submits that the tests for the admission of fresh evidence in
Palmer
    v. The Queen
, [1980] 1 S.C.R. 759, at p. 775 and
Sengmueller v.
    Sengmueller
(1994), 111 D.L.R. (4th) 19 (Ont. C.A.), at p. 23, are met
    because the original Version 2 was not available at trial and could not be
    adduced with the exercise of due diligence, and it is necessary to deal fairly
    with the heart of the issue on appeal, which is the authenticity of Version 2
    of the will.

[48]

I
    disagree. The evidence does not meet the test for the admission of fresh
    evidence. The existence of the original Version 2 of the will is not likely to
    be conclusive of whether Version 2 of the will is valid. This is because it
    does not explain what happened to the original Version 1. Given Brians
    position that Version 2 was created by using the original Version 1, which did
    have Bruces original signature on it, and by having the two witnesses sign it,
    and the experts evidence that Bruces signatures in both versions are the same,
    the continuing absence of the original Version 1 (which Brenda claims exists
    somewhere) continues as a problem for Brenda. The validity of the original
    Version 2 of the will remains in question. This evidence is not necessary to
    deal fairly with the issues on appeal and declining to admit it would not
    result in a substantial injustice.

(6)

Disposition and costs

[49]

The
    appeal is allowed, the judgment below is set aside and the action is dismissed.
    The will dated August 15, 2013 is invalid. If the parties are unable to come to
    an agreement on costs, they may make written submissions not exceeding 5 pages,
    the appellant Brian within 10 days of the release of this decision and the
    respondent Brenda within 7 days after that.

Released: June 22, 2021 D.D.

A. Harvison Young
    J.A.

I agree Doherty J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: Cheng v. Sze, 2021 ONCA 457

DATE: 20210622

DOCKET: C68200

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

BETWEEN

Bonnie Ho Yee Cheng

Applicant (Respondent)

and

David Chan Sau Sze

Respondent (Appellant)

Roger A. Gosbee, for the appellant

Ken H. Nathens and Denniel Duong, for the respondent

Heard: May 17, 2021 by video conference

On appeal from the order of Justice Robert Charney of the
    Superior Court of Justice, dated February 11, 2020.

COSTS ENDORSEMENT

[1]

Having received and considered the submissions of the parties concerning
    the costs of the appeal, we order costs to the respondent in the amount of
    $17,500, inclusive of disbursements and all applicable taxes, such costs to be
    paid from the appellants share of the net proceeds of sale of the matrimonial
    home, currently being held by Chak M. Wong, Barrister and Solicitor.

[2]

We take this opportunity to observe that, as a general rule, counsel on
    an appeal should confer with their clients and opposing counsel before the
    hearing to attempt to agree, if possible, on the amount of costs payable to the
    successful party. Making post-hearing costs submissions necessarily gives rise
    to both delay and additional costs to both parties  delay and costs that can
    be avoided by agreement on a realistic number. Where the parties cannot agree,
    they should exchange costs outlines prior to the hearing and should be prepared
    to present them and to make submissions to the panel, if and when asked to do
    so.

G.R. Strathy C.J.O.

K. Feldman J.A.

L. Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hillmount Capital Inc. v. Pizale, 2021 ONCA 456

DATE: 20210622

DOCKET: M52200 (C68999)

Strathy C.J.O., Brown and Miller JJ.A.

BETWEEN

Hillmount Capital Inc.

Respondent

(Applicant)

and

Celine Brittany Pizale and Richard Stanley Pizale

Moving Parties/Appellants

(Respondents)

Jamie Spotswood and Rachel Migicovsky, for the moving
    parties/appellants, Celine and Richard Pizale

Robert Macdonald and Teodora Prpa, for the receiver,
    Zeifman Partners Inc.

Behn Conroy, for the purchasers, Patricia and David
    Armstrong

Shana Nodel, for second mortgagees, 1713691 Ontario Inc.
    and Boris Nodel

Terry M. Walman, for first mortgagee, Elle Mortgage
    Corporation

Heard: February 8, 2021 by video conference

COSTS ENDORSEMENT

[1]

Further to the reasons released May 28, 2021 (
Hillmount Capital Inc.
    v. Pizale
, 2021 ONCA 364), the parties have filed written cost
    submissions. The respondent Receiver was successful on the appeal and we see no
    reason that it should not be awarded costs. The appellants, Celine and Richard
    Pizale, shall pay the Receiver its partial indemnity costs, fixed in the amount
    of $3,000, inclusive of disbursements and applicable taxes.

G.R. Strathy C.J.O.

David Brown J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barreira, 2021 ONCA 455

DATE: 20210622

DOCKET: C68868

Miller, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Barreira

Appellant

Delmar Doucette, for the appellant

Elena Middelkamp, for the respondent

Heard: June 18, 2021 by videoconference

On appeal from the sentence imposed on November 16, 2020
    by Justice Harrison S. Arrell of the Superior Court of Justice, with reasons
    reported at 2020 ONSC 6558.

REASONS FOR DECISION

FACTUAL BACKGROUND & PROCEDURAL HISTORY

[1]

Joshua Barreira and Tyler Johnson had been involved in an altercation in
    September 2013. On November 30, 2013, based on information received from his
    brother, Mr. Barreira anticipated another fight with Mr. Johnson, so he
    summoned the assistance of Chad Davidson. Mr. Barreira then led a search for
    Mr. Johnson. During the encounter that followed, in Mr. Barreiras presence,
    Mr. Davidson shot Mr. Johnson in the chest, killing him.

[2]

Mr. Barreira was initially tried and convicted of murder for his role in
    Mr. Johnsons death. However, in March 2020 this court set his murder
    conviction aside and ordered a new trial: 2020 ONCA 218, 62 C.R. (7th) 101.

[3]

On August 6, 2020, the Crown accepted a guilty plea from Mr. Barreira to
    the lesser included offence of manslaughter.

[4]

Sentencing submissions were completed on October 1, 2020. The matter was
    adjourned for the sentencing judge to prepare reasons for sentence.

[5]

On November 16, 2020, the sentencing judge determined that 15 years
    imprisonment was a fit sentence for the manslaughter offence. Mr. Barreira was
    given 10 years credit for pre-sentence custody served prior to the sentencing
    hearing, and a further six months of
Duncan
credit for the harsh
    conditions during his pre-sentence custody, leaving a net sentence of 4.5
    years.

ISSUES ON APPEAL

[6]

Mr. Barreira seeks leave to appeal his sentence. He raises the following
    grounds of appeal:

(1)     The
    15-year sentence imposed by the sentencing judge fell outside the appropriate
    sentencing range;

(2)     Since
    the agreed statement of facts disclosed that it was unknown whether Mr. Barreira
    knew that Mr. Davidson had a gun, the sentencing judge erred by failing to
    sentence Mr. Barreira on the basis that he did not know that Mr. Davidson had a
    gun;

(3)     The
    sentencing judge erred in not assigning greater
Duncan
credit given the
    harshness of the conditions during pre-sentence custody; and

(4)     The
    sentencing judge omitted to assign the equivalent of 69 additional days of
    pre-sentence custody for the 46 days Mr. Barreira had served between sentencing
    submissions on October 1, 2020 and the date on which his sentence was imposed,
    November 16, 2020.

ANALYSIS

[7]

We grant Mr. Barreira leave to appeal his sentence, and we accept his
    fourth ground of appeal, which the Crown concedes. It appears that the
    sentencing judges failure to give pre-sentence credit for the time between sentencing
    submissions and the imposition of sentence was an oversight.

[8]

However, we reject the other alleged errors.

[9]

First, we do not agree that the sentencing judge erred by imposing a
    sentence outside the appropriate range. As noted by the Supreme Court of
    Canada, The fact that a judge deviates from the proper sentencing range does
    not in itself justify appellate intervention:
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 11. The relevant inquiry is whether the
    sentence was demonstrably unfit.

[10]

Without
    commenting on whether the sentence imposed by the sentencing judge was outside
    the range, in our view the sentence was not demonstrably unfit, even
    considering mitigating circumstances. Mr. Barreira led the search for Mr. Johnson,
    invited Mr. Davidsons participation in the attack on an unsuspecting and unarmed
    victim, and had an extensive criminal record, including a prior conviction for
    counselling murder.

[11]

Second,
    the sentencing judge did not err by treating the uncertainty about whether Mr. Barreira
    knew that Mr. Davidson had a gun as a neutral factor. For Mr. Barreira to
    benefit from the alleged mitigating fact that he did not know Mr. Davidson had
    a gun, this would need to have been established on the balance of
    probabilities:
R. v. Smickle
, 2013 ONCA 678, 311 O.A.C. 288, at para.
    18;
Criminal

Code
, R.S.C. 1985, c. C-46, s. 724(3).

[12]

Third,
    the impact of enhanced credit for harsh conditions of pre-sentence custody is a
    matter well within the discretion of the sentencing judge:
R. v. Duncan
,
    2016 ONCA 754, [2016] O.J. No. 5255, at paras. 6-7;
R. v. Ledinek
,
    2018 ONCA 1017, [2018] O.J. No. 6503, at para. 13. While the sentencing judge
    might well have given more credit for those conditions, this does not provide a
    basis for interfering.

CONCLUSION

[13]

Leave
    to appeal from sentence is granted, and Mr. Barreiras sentence appeal is
    allowed in part.

[14]

The
    sentence of 4.5 years is set aside, and a sentence of 4 years, 113 days is
    substituted to reflect the 69 additional days of pre-sentence credit that
    should have been awarded for the 46 days of pre-sentence custody between sentencing
    submissions and the date Mr. Barreira was sentenced.

B.W. Miller J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.