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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. V.J., 2017 ONCA 924

DATE: 20171201

DOCKET: C62692

Simmons, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

V.J.

Appellant

Courtney Keystone and Domenic Basile, for the appellant

Andreea Baiasu, for the respondent

Heard: October 31, 2017

On appeal from the convictions entered on June 9, 2015 by
    Justice Nancy J. Spies of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted after a three day
    trial, of various domestic violence offences against his wife. The charges were
    based on five alleged incidents occurring between September 2010 and August
    2012. The appellant was convicted on all nine charges, consisting of two counts
    of assault, three counts of assault with a weapon, two counts of uttering death
    threats, sexual assault, and unlawful confinement. He was sentenced to 35 months
    in prison. He appeals his convictions.

[2]

The appellants sole ground of appeal is ineffective
    assistance of counsel at trial resulting in a miscarriage of justice. The fresh
    evidence, admitted on consent of the Crown, consists of the affidavits of the
    appellant and his cousin, Ms. S, who both testified at trial, a transcript of
    the preliminary inquiry, a statement of agreed facts, and copies of email
    exchanges between Crown counsel and trial counsel. The appellants trial
    counsel did not provide an affidavit. He was ill when the allegation of
    ineffective assistance of counsel was made, and passed away shortly after the
    appellant perfected the appeal.

[3]

The appellant groups his ineffective assistance
    allegations into four categories: (1) inadequate legal advice; (2) inadequate
    trial preparation; (3) inadequate cross-examination of the complainant; and (4)
    failure to follow the rule in
Browne
    v. Dunn
,
when challenging the complainants evidence.

[4]

To succeed on his appeal the appellant must establish,
    on a balance of probabilities, that his counsels conduct fell below the
    standard of reasonable professional assistance, and that the ineffective
    representation resulted in a miscarriage of justice:
R. v. Joanisse
(1995), 85 O.A.C. 186, at
    paras. 69-71 and
R. v. Stark
,
    2017 ONCA 148, 35 C.R. (7th) 455, at paras. 12-14
.
There
    is a strong presumption that counsels conduct fell within the wide range of
    reasonable professional assistance: see
R.
    v. G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. A
    miscarriage of justice occurs where the ineffective representation undermines
    the appearance of fairness of the trial or the reliability of the verdict:
R. v. Archer
(2005), 203 O.A.C. 56, at
    para. 120;
Stark
, at para. 14.
    For a verdict to be unreliable, the appellant must demonstrate that, had
    counsel performed in a competent fashion, there is a reasonable possibility that
    the verdict would have been different:
Archer
,

at para. 120.
[1]

[5]

Because trial counsel did not respond to the particular allegations of
    incompetence, some of the appellants complaints about his performance are unchallenged.
    Others, however, can be tested by reference to the trial and preliminary
    inquiry transcripts, considered together with the trial judges reasons. The
    Crowns position is that the appellant has not established a reasonable
    possibility that he would have been acquitted of any of the offences absent the
    alleged deficiencies in his representation.

[6]

We will consider, in turn, each alleged deficiency in the appellants
    representation at trial, and its impact, if any, on trial fairness.

[7]

First, the appellant asserts that his trial
    counsel provided inadequate legal advice. He contends that he was not afforded
    the opportunity to give his evidence using an interpreter because counsel told
    him he was fine to testify without one. He also says that counsel did not
    explain his choice as to the mode of trial, including trial by jury, or seek
    his instructions on how he wished to proceed. He complains that counsel made
    bold and over-confident assertions, telling him that he would take care of the
    charges and not to worry.

[8]

These complaints are without merit.

[9]

The record does not support that the appellant
    needed an interpreter at trial, or that his ability to present his defence was
    in any way impaired by not having one. The complainant testified through a
    Punjabi-English interpreter and the same interpreter could easily have assisted
    the appellant. The appellant did not request assistance, nor did he complain of
    any difficulty in understanding the questions put to him, even after Crown
    counsel invited him to indicate if there was any question he did not
    understand. His contention on appeal that he had trouble understanding the
    questions and expressing himself at trial, is not borne out by a review of the
    transcript. The brief interchanges appellate counsel refers to, when read in
    context, do not support the contention that the appellant had difficulty
    communicating his evidence because of language difficulties. Nor do the trial
    judges reasons support the claim. Indeed, she recited in detail the evidence
    the appellant provided and commented that he gave his evidence in a very calm
    manner, was polite and showed no signs of stress.

[10]

We also do not accept the appellants argument
    that he was unfairly denied the right to choose his mode of trial, and that,
    relying on
Stark
, he is entitled to a new trial. In
Stark
, the appearance of
    trial fairness was undermined when the accused waived his right to a
    preliminary inquiry and a Superior Court trial without first receiving advice
    about his rights. His lawyer gave him neither advice nor a choice in his mode
    of trial. Here, by contrast, on the first day of the preliminary inquiry, after
    the information was read, the appellant himself waived the formal reading of
    the election, and his counsel indicated, on the record, that the appellant
    instructed him that he wishes to be tried by a judge in the Superior Court
    sitting without a jury. The appellant then had the benefit of the preliminary
    inquiry, which proceeded without objection on his part. The appellant has not
    claimed that he wanted a jury trial, that he did not understand he was waiving
    his right to a jury trial or that he was prejudiced in any way by not have a
    jury trial.

[11]

As for the assertion that trial counsel
    communicated to the appellant that he had nothing to worry about, while the
    Law Society cautions lawyers to be wary of bold and over-confident assurances
    to the client,
[2]
the
    appellant has not explained how this might have affected the outcome of the
    proceedings, nor is this apparent from a review of the trial record.

[12]

As his second complaint of inadequate assistance
    of trial counsel, the appellant asserts that neither he nor the other defence
    witness, Ms. S, was properly prepared by counsel to testify. While the
    appellant met with trial counsel several times, he contends that trial counsel neglected
    to discuss with him the details of the alleged incidents and the Crown
    disclosure, and to ascertain his version of the events. According to Ms. S,
    trial counsel met with her for only a few minutes before she testified, and did
    not prepare her for her evidence in chief or for cross-examination.

[13]

The appellant says that his evidence in chief
    was very brief, consisting mainly of denials of the complainants allegations,
    that he felt limited in what he could say, and that it was only under
    cross-examination that he provided details, which then attracted adverse
    comment in the trial judges reasons. The appellant also contends that the
    trial judge drew an adverse inference from his failure to recall the specifics
    of the complaint he made to police at the time the complainant was arrested for
    assaulting him. He blames this on trial counsels failure to review his police statement
    with him.

[14]

Again, we do not give effect to this argument. A
    fair reading of the trial proceedings reveals that trial counsel understood the
    appellants position, which was essentially that he denied the events recounted
    by the complainant, that he had never used violence against the complainant, and
    that the complainant was motivated by revenge to fabricate her allegations.
    This position was amply conveyed in the appellants evidence at trial through
    his examination in chief.

[15]

The appellant does not suggest what evidence he
    might have offered, or what additional details he could have provided in direct
    examination that could have affected the outcome of the case, had he been
    better prepared to testify. The trial judge accepted that the appellants
    evidence was given in a straightforward manner. And, after noting that the
    appellant only gave detailed evidence with respect to some of the incidents and
    for others it was just a general denial, the trial judge observed that this is
    often the case in domestic assault cases. She went on to state however that
    to the extent [the appellant] did give more detailed evidence about an
    incidentin many respects his evidence was incredible (at para. 85).

[16]

It was not the fact that the appellant offered
    few details in direct examination that affected the trial judges assessment of
    his credibility; rather, the details themselves made his evidence incredible
    and not truthful (at para. 85). These included his assertions that, despite
    the various marital issues he described, he was never angry with the complainant,
    save on one occasion; that the complainant yelled at him and abused him but he
    would never yell back; and his attribution of all the problems in the marriage
    to the complainant. The trial judge also found it very telling that the
    appellant could not remember the assaults he alleged the complainant committed against
    him, only referring to an alleged bite. He could not even recall the alleged
    scratching and slap that he had testified about only shortly before (at para.
    85).

[17]

The appellant says that he failed to remember
    the details of the complainants assault which led him to call the police,
    because his trial counsel did not review his police statement with him before
    he testified at trial.  The police statement, which was in connection with
    charges against the complainant and her diversion into a counselling program, is
    not in the record, and was not part of the Crown disclosure in this case. In
    any event, what affected the appellants credibility was not his inability to
    remember small details from the earlier complaint  it was the implausibility that
    he would be unable to recall what the complainant had done to assault him, even
    in the course of his evidence at trial. The trial judge found the appellants
    evidence that the complainant assaulted him to be all made up and an attempt
    to mislead [the] Court and turn the tables on [the complainant] (at para.
    100).

[18]

Similarly, there is no indication of how better
    preparation could have altered the evidence of Ms. S in any way that would have
    helped the defence. Ms. S lived upstairs in the home in which the complainant,
    her son, and the appellant occupied a basement apartment. It was the defence
    position that the assaults could not have happened because there were no
    eyewitnesses, when five people lived upstairs and the appellants sons were
    regular visitors to their home. Indeed, Ms. S testified that she took the
    complainant to the hospital after one alleged assault and out of the house for
    coffee after another, and that on neither occasion did the complainant say she
    had been assaulted. Ms. S testified in chief that she had never witnessed any
    violence between the appellant and the complainant. While this was her evidence
    in chief, on cross-examination Ms. S volunteered that she had seen the
    appellant with a ripped shirt and scratch marks and had seen the complainant
    slap him, at the time of the second incident before she took the complainant
    for coffee. The trial judge rejected Ms. Ss explanation for the inconsistency
    (that she misunderstood the initial question), and she characterized the evidence
    as deliberately misleading. As a result, the trial judge rejected much of Ms.
    S.s evidence andconsidered the rest with caution (at para. 81). Defence
    counsel cannot be faulted for the fact that, as a result of the cross-examination,
    Ms. Ss evidence was rendered largely unhelpful to the appellant. We do not see
    how better preparation of this witness would have made a difference in the
    outcome of the trial.

[19]

The third alleged deficiency in his representation,
    according to the appellant, is that trial counsel did not conduct an effective
    cross-examination of the complainant, and that this affected the reliability of
    the verdict. Specifically, the appellant asserts that trial counsel focused on
    collateral matters and did not confront the complainant with her prior
    inconsistent statements from the preliminary inquiry, or challenge her on
    inconsistencies in her evidence at trial. The main inconsistencies the
    appellant targets were in relation to the second incident (before Ms. S took
    the complainant out for coffee) and the sexual assault incident.

[20]

The appellant points to the fact that the
    complainant, in describing the second incident, testified at the preliminary
    inquiry that after the appellant pulled out her hair, they [which he says
    refers to the whole family] came down, and saw her hair and they cleaned it
    up after Ms. S took her out. At trial however, she testified that, after the
    appellant pulled out her hair, Ms. S came down and saw the hair and that while
    she was outside the hair was cleaned up. In cross-examination she said that Ms.
    S was the person who cleaned up the hair.

[21]

The trial judges reasons describe the
    complainants trial evidence, including the apparent inconsistency about who
    cleaned up the hair (at para. 16). The trial judge explained in detail why she
    found the complainants account of this incident entirely credible (at paras.
    96 to 108).  We are not persuaded that the trial judges credibility assessment
    would have been any different had trial counsel focused on the complainants
    inconsistencies about whether other family members came downstairs with Ms. S,
    and who precisely cleaned up the hair. The core of the complainants account
    was consistent  that the appellant had assaulted her and pulled out her hair,
    that the evidence was cleaned up, and that the appellants family was on his
    side.

[22]

In relation to the sexual assault incident, the
    appellant says there were three main inconsistencies between the complainants
    evidence at the preliminary inquiry and at trial: (1) whether the incident occurred
    at 11:00/11:30 or 8 or 9 pm; (2) whether the complainant or the appellant was
    the person who spoke to the appellants father in India on a phone call prior
    to the incident; and (3) whether the complainant was kicked in the head during
    or after the sex act.

[23]

We disagree that there could have been a
    different outcome at trial, if trial counsel had pursued these alleged inconsistencies
    in his cross-examination of the complainant. First, although there was some
    confusion in her evidence at the preliminary inquiry concerning which incident
    she was speaking of in relation to something happening at 11:00 or 11:30, to
    the extent there was an inconsistency with the complainants evidence at trial
    about the timing of the sexual assault, this was on a minor point. She
    described the assault in each case as occurring after the appellants apology
    (something he testified he
may
have offered), and at night, when she was
    taken by the appellant from her sons bedroom.  Second, whether the complainant
    called the appellants father, or whether the appellant did so, the thrust of
    the complainants evidence, which the trial judge accepted, was that the forced
    sexual intercourse occurred after an apology from the appellant. Third, whether
    the appellant kicked the complainant in the head while having sex with her or
    just after, in each case what was described was a kick that occurred during the
    same event. The trial judge gave cogent reasons for accepting the complainants
    account of the sexual assault incident (at paras. 119 to 124).

[24]

Whether considered together or alone, the
    inconsistencies in the complainants evidence at trial, and between her trial
    and preliminary inquiry testimony, were all on minor aspects of her evidence
    and did not have any real impeachment potential that could undermine the
    reliability of the verdict. This is not a case like
R. v. R.B.
, 2009
    ONCA 524, 68 C.R. (6th) 55, where trial counsel failed to exploit prior
    inconsistent statements that had a significant potential for impeachment.

[25]

Furthermore, we do not agree that the
    appellants counsel limited himself to challenges to the complainants
    credibility on collateral matters. In addition to exploring financial issues
    that did not seem to advance the cross-examination, counsel cross-examined the
    complainant on her own prior statements about how her injuries were caused, her
    motives for making false allegations, including as revenge for the appellant
    calling the police on her, the lack of eyewitnesses, and her failure to
    immediately tell the police she had been assaulted, when she was arrested for
    assaulting the appellant. There were concerns about the complainants evidence
    that were revealed in her evidence, and were addressed in the trial judges
    reasons. In the end, however, the trial judge found that the complainant did
    not exaggerate, that her evidence in some respects was corroborated, and she
    accepted the complainants evidence that supported each of the offences
    charged.

[26]

Finally, the appellant complains that trial
    counsel violated the rule in
Browne
    v. Dunn

when he elicited evidence from defence
    witnesses about matters that had not been put to the complainant in
    cross-examination, and that this adversely affected the outcome of the case.

[27]

We do not give effect to this argument. The
    trial judge noted several instances where evidence from the defence witnesses
    had not been put to the complainant and she observed that the rule in
Browne v. Dunn
had been
    breached. She also stated that Crown counsel only raised the issue in closing
    submissions and that neither counsel suggested that the complainant be
    recalled. Although the trial judge noted that she could take into account the
    fact that the complainant was not questioned about certain matters in assessing
    the appellants credibility, she does not appear to have relied on this factor
    in the course of her credibility analysis and factual findings, and it appears
    to have played no role in her determination of the appellants guilt.

[28]

We are not persuaded that the alleged
    deficiencies in the appellants representation, when considered individually or
    cumulatively, resulted in an unfair trial or an unreliable verdict. After a
    full review of the record, including the transcript of the trial and the trial
    judges careful and detailed reasons, there is no reasonable possibility that
    the appellant would have been acquitted of any of the offences had any one or
    more of the alleged deficiencies not occurred.

[29]

For these reasons, we grant leave to admit fresh evidence concerning the
    appellants ineffective assistance of counsel claim, but dismiss the appeal.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer
    J.A.

[1]

In
Joanisse
, at para. 80, Doherty J.A. framed the test in the
    following terms: the appellant must show that, had he received competent
    legal representation, there is a real probability that the appellant would not
    have been convicted of murder. A reasonable probability lies somewhere between
    a mere possibility and a likelihood. At endnote 9 of
Joanisse
, Doherty
    J.A. stated: In this context, I make no distinction between a
    "reasonable probability" and a "reasonable possibility":
    see
R. v. Garofoli
, supra, at p. 152.

[2]

Law Society of Upper Canada, Toronto: Law Society of Upper
    Canada, amended September 2007,
Rules of Professional Conduct
, Rule 3.1,
    commentary 9.


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. W.V., 2017 ONCA 979

DATE: 20171213

DOCKET: C63127

Pepall, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.V.

Appellant

Michael J. Venturi, for the appellant

Nancy Dennison, for the respondent

Heard and released orally: December 11, 2017

On appeal from the
    conviction entered on March 24, 2016 by Justice R. Gordon of the Superior Court
    of Justice, sitting without a jury.

REASONS FOR
    DECISION

[1]

The appellant was convicted of sexual
    interference with his girlfriends daughter when she was between the ages of 9
    and 15 years. The alleged contact began with touching and continued to oral
    sex, vaginal intercourse and attempted anal intercourse.

[2]

The appellant submits that the trial judge ought
    to have made different findings of credibility and that the trial judge failed
    to consider the whole context of the evidence and made speculative findings of
    fact.

[3]

We do not agree. The trial judge gave cogent and
    detailed reasons thoroughly anchored in the evidence before him. The
    allegations were powerfully corroborated by statements in social media that the
    trial judge found were made by the appellant.

[4]

We see no basis to intervene. The appeal is
    dismissed.

S.E.
    Pepall J.A.

P.
    Lauwers J.A.

G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Samra v. 7544405 Canada Inc., 2017 ONCA 953

DATE: 20171206

DOCKET: M46891 (C62026)

Watt, Pepall and Miller JJ.A.

BETWEEN

George Samra

Plaintiff/Respondent

and

7544405 Canada Inc. and Stella Chinyere Kemdirim

Defendants/Appellants

Stella Kemdirim, acting in person

Miriam Vale Peters, for the respondent

Heard: October 27, 2017

REASONS FOR DECISION

[1]

Ms. Kemdirim and 7544405 Canada Inc. (Kemdirim and 7544405) seek to
    review the order of Roberts J.A. refusing to extend the time to file their
    earlier motion to review and set aside the July 20, 2016 order of Laforme J.A.,
    and to grant a stay of his order and the summary judgment granted by Warkentin
    J. on March 14, 2016.

[2]

The genesis of these proceedings is the default of Kemdirim and 7544405
    under two mortgages placed on several properties. George Samra obtained summary
    judgment against Kemdirim and 7544405 due to their default under the mortgages.
    He was also awarded costs fixed at $17,000 inclusive of HST and disbursements.

[3]

Kemdirim and 7544405 appealed.

[4]

Samra moved before Laforme J.A. for an order for security for costs. He
    granted the order, which required Kemdirim and 7544405 to pay $37,000 into
    court as security for costs within 30 days, failing which their appeal of the
    summary judgment would be dismissed. He also ordered Kemdirim and 7544405 to
    pay Samra his costs of the motion fixed at $3,500 inclusive of HST and
    disbursements.

[5]

Kemdirim and 7544405 subsequently moved before Roberts J.A. seeking an
    order to extend the time within which they could serve and file a motion to
    review the order of Laforme J.A., a stay of that order, and a stay of the
    summary judgment.

[6]

Roberts J.A. granted an extension of time to August 29, 2016 to post
    security and dismissed the remainder of the motion.

[7]

Kemdirim and 7544405 have not yet made any payments towards the order
    for security for costs or any costs orders made in any of the prior
    proceedings.

[8]

Despite Ms. Kemdirims earnest submissions on behalf of herself and 7544405,
    we see no basis upon which we should grant the orders sought.

[9]

To begin, Kemdirim and 7544405 admit default under the mortgages,
    although they query the precise amounts of the default. The evidence before the
    judge on the motion for summary judgment revealed no genuine issue requiring a
    trial. The reasons for judgment on that motion reveal no basis upon which a
    reviewing court could interfere.

[10]

Prior
    to the appearance before Laforme J.A., the Registrar administratively dismissed
    the appeal by Kemdirim and 7544405 from the summary judgment for failure to
    perfect it in accordance with the rules.  Kemdirim and 7544405 moved before the
    Laforme J.A.to set aside the administrative dismissal and stay the summary
    judgment pending appeal. It was in response to this motion that Samra sought
    and obtained an order for security for costs.

[11]

Laforme
    J.A. restored the appeal but ordered security for costs because he was of the
    view that the appeal was without merit and that Kemdirim and 7544405, already
    in default under the mortgages, lacked the means to pay the costs of an
    unsuccessful appeal. Kemdirim and 7544405 have been unable to persuade us that
    this decision is cumbered by error.

[12]

Roberts
    J.A., whose order refusing an extension of time Kemdirim and 7544405 ask us to
    review, dismissed the motion on two grounds. The first, echoing what the first
    chambers judge said, was that the appeal was wholly without merit, thus frivolous
    and vexatious.  The second was that the justice of the case did not warrant the
    order sought. In refusing the extension of time sought, Roberts J.A. enumerated
    the relevant factors that informed her decision.  She acknowledged that
    Kemdirim and 7544405 had intended to seek a review of the order within the
    required time; that the delay was brief and that the delay was adequately
    explained. Then she focused on the justice of the case. Her consideration of
    this factor reveals no legal error, no misapprehension of relevant evidence and
    is plainly reasonable. We see no basis on which to interfere.

[13]

It
    followed that the request for the stay of the security for costs order was
    moot.  Roberts J.A. then correctly considered and applied the principles
    applicable to the granting of a stay of Warkentin J.s summary judgment.
    Again, we see no basis on which to interfere.

[14]

The
    motion to review the order of the second chambers judge is dismissed with costs
    of $3,000, inclusive of disbursements and all applicable taxes, payable to
    Samra within 30 days of the release of this decision.

David
    Watt J.A.
S.E. Pepall J.A.
B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA
    1017

DATE: 20171222

DOCKET: C64000

Laskin, Miller and Paciocco JJ.A.

BETWEEN

Abigail Sataur, a minor by her Litigation
    Guardian, Emran Sataur

Plaintiff

(Appellant)

and

Starbucks Coffee Canada Inc., Danielle Bovenberg
    and Jane Doe

Defendants

(Respondents)

Gavin Mackenzie, Brooke Mackenzie and Doug Strelshik,
    for the appellant

Bruno Roti, for the respondents

Heard and released orally: December 20, 2017

On appeal from the order of Justice Stewart of the
    Superior Court of Justice, dated May 29, 2017.

REASONS FOR DECISION

[1]

The appellant Abigail Sataur pleaded that she was injured when a barista
    at a Starbucks store in Brampton poured scalding hot water on her hands. Through
    her Litigation Guardian, Ms. Sataur sued Starbucks, the barista (Jane Doe) and
    the manager of the store, Danielle Bovenberg, for negligence. She has alleged
    that each of the two individual defendants owed her a duty of care and that each
    was personally liable for breaching her duty.

[2]

On a motion brought by Starbucks the motion judge struck the Statement
    of Claim against the two individual defendants on two grounds: first, the Statement
    of Claim did not disclose a reasonable cause of action against either
    individual defendant; and, second, suing the two individual defendants amounted
    to an abuse of process.

[3]

On her appeal Ms. Sataur submits that the motion judge erred in law in striking
    the Statement of Claim against both individual defendants on either ground. We agree.

[4]

The motion judge held that the claim against the individual defendants
    did not disclose a reasonable cause of action because the general rule remains
    that employees are not liable for what they do within the scope of their
    authority and on behalf of their corporation. Respectfully, the general rule
    is the opposite. As Justice McLachlin said succinctly in
London Drugs Ltd.
    v. Kuehne & Nagel International Ltd.
, [1992] 3 S.C.R. 299. It has
    always been accepted that a plaintiff has the right to sue the person who was
    negligent, regardless of whether the employee was working for someone else or
    not. Put in the negative, there is no general rule in Canada that an employee
    acting in the course of her employment cannot be sued personally for breaching a
    duty of care owed to a customer.

[5]

Here Ms. Sataur has pleaded specific acts of negligence against each
    individual defendant for which each may be personally liable - in the case of
    Jane Doe, the pouring of hot water, and in the case Ms. Bovenberg not
    supervising Jane Doe properly.

[6]

The motion judges ruling conflates two separate concepts: the
    employers vicarious liability for its employees acting within the scope of
    their employment; and employees personal liability for their own negligence
    while acting within the scope of their employment. Under Canadian law the two
    concepts can live together.

[7]

The motion judge also held that the pleading against the individual
    defendants was an abuse of process because they were named parties solely to
    obtain discovery. Even accepting that the two defendants were named solely to
    examine them for discovery, doing so in this case does not amount to an abuse
    of process. Quite the contrary. It is not an abuse of process to bring a
    lawsuit against individual defendants for the purpose of obtaining discovery
    from them, if the plaintiff has pleaded a proper cause of action against those
    individual defendants, as we have found that the plaintiff has in this case.

[8]

Again, as Justice McLachlin said in
London Drugs Ltd. v. Kuehne
    & Nagel International Ltd.,
unless the alleged individual tortfeasor is
    named, the right to discovery and use of evidence of the testimony of the
    person who was actually negligent might be lost. The situation would be
    different if the plaintiff had named defendants who had no direct involvement
    in the substance of the claim. That is not the situation here.

[9]

Accordingly, the appeal is allowed, the order of the motion judge is set
    aside and the defendants motion to strike the Statement of Claim against the
    two individual defendants is dismissed. The appellant is entitled to her costs
    of the appeal in the agreed upon amount of $15,000 all inclusive. The parties
    also agree that the successful party before the motion judge - the appellant
    is entitled to the costs of the motion in the amount of $2,500, all inclusive.

John
    Laskin J.A.

B.W.
    Miller J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sirois v. Weston, 2017 ONCA 1002

DATE: 20171220

DOCKET: C63793

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Louis Sirois and Chandra Martens

Plaintiffs (Appellants)

and

Pamela Adriana Weston in her capacity as power of
    attorney for property of Randalyn Lorraine Weston, Brian Wilson and
Tanya Lemcke

Defendants (Respondent)

Christopher S. Spiteri & John MacDonell, for the
    appellants

Aaron Postelnik, for the respondent, Tanya Lemcke

Heard and released orally:  December 14, 2017

On appeal from the judgment of Justice Giovanna Toscano
    Roccamo of the Superior Court of Justice sitting without a jury, dated April
    27, 2017.

REASONS FOR DECISION

[1]

The plaintiffs appeal from the summary judgment that dismissed the
    plaintiffs claim against the defendant, Tanya Lemcke, on the basis that the
    two-year limitation period had expired prior to the claim being instituted
    against the respondent.
[1]

[2]

The appellants purchased a rural property as a retirement place in late
    2009.  In early 2010, the appellants became aware that a company had an option
    to purchase an adjoining property upon which the company intended to build a
    solar farm.  In fact, the option had been registered on the title to the
    adjoining property one day after the appellants had signed their agreement of
    purchase and sale.  The appellants say that they would not have purchased the
    property had they known about the option that the solar farm company had to
    purchase the adjoining lands.

[3]

As a result of this information, the appellants first attempted, along
    with other landowners in the area, to prevent the construction of the solar
    farm.  They failed in those efforts.  Construction of the solar farm began in
    February 2013.

[4]

The appellants asked the respondent, late in 2012, to provide them with
    an opinion regarding the value of the property at that time.  The respondent
    provided that opinion, in December 2012, which stated that the value of the
    property had declined significantly given the impending construction of the
    solar farm.

[5]

The appellants commenced this action on November 30, 2011. The
    appellants did not include the respondent as a defendant.  It was not until
    October 2013 that the appellants sought leave to amend their statement of claim
    to add the respondent as a defendant.  Leave was granted on November 1, 2013
    and the statement of claim was amended to add the respondent as a defendant on
    November 30, 2013.

[6]

In response to the motion for summary judgment, the appellants argued
    that the limitation period did not begin to run until February 2013 when the
    construction of the solar farm actually commenced.  Up until that point, the
    appellants say that they did not know that they had suffered actual damage
    arising from the potential solar farm.

[7]

The motion judge rejected the appellants position.  She concluded, at
    para. 44 of her reasons:

[8]

I find that the Plaintiffs discovered their cause of action against Ms.
    Lemcke by February 2010. Although the extent of the damages was still unknown,
    they knew at that time that they had suffered damage. The fact that the
    Plaintiffs chose to wait does not take away from the fact that they knew or
    ought to have known, at that time, that they had a cause of action in negligence
    against Ms. Lemcke.

[9]

We agree with the conclusion reached by the motion judge.  By at least
    February 2010, the appellants knew about the possible construction of the solar
    farm on the property adjacent to theirs.  They expressly say that they would
    not have purchased their property if they had had this knowledge before the
    closing.  They also knew at that time that the value of their property would be
    negatively impacted.  Indeed, in an email dated July 19, 2010 to their real
    estate lawyer, the appellants said that they needed to sue the people who had
    sold them the property and others, because they had suffered a huge financial
    hardship.

[10]

In our view, the situation in this case is indistinguishable in result
    from the situation in
Hamilton (City) v. Metcalfe & Mansfield Capital
    Corporation
, 2012 ONCA 156, 347 D.L.R. (4th) 657 (Ont. C.A.).  In that
    case, LaForme J.A. said, in part, at para. 32:

[11]

... the plaintiff suffers damage sufficient to complete the cause of
    action when he enters into the transaction, not when the loss is monetized into
    a specific amount.

[12]

We would add that the contention that the appellants did not know they
    had a cause of action until damage occurred when the construction of the solar
    farm commenced in February 2013, is contradicted by the fact that they
    commenced this action originally in November 2011 against both the vendor and
    the appellants real estate lawyer, based on the same factual foundation and
    complaint that is now sought to be alleged against the respondent.

[13]

Finally, the appellants reliance on this courts decision in
Butera
    v. Chown, Cairns LLP
, 2017 ONCA 783 is misplaced.  The expiration of the
    limitation period as it related to this sole defendant is precisely the type of
    discrete issue that could be separated from the other claims in the action and
    dealt with expeditiously and in a cost effective manner (para. 34).

[14]

The appeal is dismissed with costs awarded to the respondent in the
    agreed-upon amount of $7,300, inclusive of disbursements and HST.

K.
    Feldman J.A.

Fairburn J.A.

I.V.B. Nordheimer J.A.

[1]

Sirois v. Weston,
2017 ONSC 2639.


COURT OF APPEAL FOR ONTARIO

CITATION: Sweetnam v. Williamson Estate, 2017 ONCA 991

DATE: 20171215

DOCKET: C62444

Hourigan, Brown JJ.A. and Himel J.
(ad hoc)

BETWEEN

Star Sweetnam

Plaintiff (Respondent)

and

Dianne Lesage
and Terry Dooley in their
    capacities as estate trustee of the Estate of Martin Arthur Williamson

Defendants (
Appellant
/Respondent)

Earl Cherniak, Ian Hull and Doreen So, for the
    appellant, Dianne Lesage

Sean Graham, for the respondent/cross-appellant, Terry
    Dooley

Brendan Donovan and Gregory Sidlofsky, for the
    respondent, Star Sweetnam

Heard and released orally: December 12, 2017

On appeal from the judgment of Justice Douglas K. Gray of
    the Superior Court of Justice, dated June 20, 2016.

REASONS FOR DECISION

[1]

One of two estate trustees appeals the decision of the trial judge which
    found that the testator lacked testamentary capacity at the time he made a will
    on August 16, 2010 and a will on September 8, 2010 but dismissed other claims
    made.

[2]

Both estate trustees seek leave to appeal the costs award which was that
    the estate trustees should pay costs to the respondent to be borne by the
    estate trustees and not out of the estate.

[3]

The case concerns a successful businessman who was married for 30 years
    and had one child who is now 45 years old. The testator separated seven years
    prior to his death but never divorced. He resided with his common law partner
    during those seven years. He owned two profitable companies that manufactured
    packaging materials and sold packaging materials as well as real estate assets.

[4]

Following a seizure on July 20, 2010, he was diagnosed with brain
    cancer. He made two wills: one on August 16, 2010, leaving the majority of his
    estate to his common law partner and excluded his only child. In a second will,
    made on September 8, 2010, he repeated the exclusion of his daughter and left
    legacies to his common law partner, a friend from Québec, his former business
    associate, the two estate trustees and the residue of his estate to a number of
    friends, including a share of the residue to the spouse of one of the trustees.

[5]

The testator attempted to change his will two further times but no new
    wills were signed before his death, on December 24, 2010.

[6]

The trial judge heard evidence from a number of witnesses including the
    daughter, the estate trustees, former colleagues and friends, the former wife,
    the lawyers who prepared the wills, the lawyer who prepared a separation
    agreement between the testator and his wife, various treating doctors and
    experts called by each side. In his lengthy and detailed reasons, he outlined
    the evidence and why he preferred the evidence of the respondents witnesses
    regarding the testators behaviour following his diagnosis and the expert psychiatrist
    regarding the testamentary capacity of the testator.

[7]

He applied the test for testamentary capacity as outlined in the leading
    jurisprudence. He concluded that the testator was not aware of the nature and
    extent of his assets at the time he made the wills, did not remember the person
    he might be expected to benefit under his will and did not understand the
    nature of the claims that may be made by persons he was excluding. He found
    that the dispositions were affected by delusions and articulated what those
    delusions were in his reasons.

[8]

We see no palpable errors of fact. The inferences drawn by the trial
    judge were reasonably supported by the evidence. We see no errors in the
    analysis or the application of the law by the court below.

[9]

The appeal is dismissed.

[10]

On the issue of the costs award, costs of a proceeding are in the
    discretion of the court and the court may determine by whom and to what extent
    the costs shall be paid. While in estates matters costs awards are often borne
    by the estate,  a court may order otherwise if an estate trustee has acted
    unreasonably or in substance for his or her own benefit, rather than for the
    benefit of the estate: See
Brown v. Rigsby
, 2016 ONCA 521, at para.
    11.

[11]

In the case at bar, the trial judge found that the estate trustees were
    adversarial and unreasonable in refusing to consider offers of settlement that
    were less than the result obtained and that they took unreasonable positions
    such as the hiring of a private investigator and claiming costs double those
    claimed by the respondent following trial.  Both estate trustees were
    responsible in carrying the litigation forward. There is no reason to interfere
    with the exercise of discretion of the trial judge.

[12]

The motion for leave to appeal the award to costs is dismissed.

C.W. Hourigan J.A.
David Brown J.A.
Himel J.


COURT OF APPEAL FOR ONTARIO

CITATION: Su v. Lam, 2017 ONCA 952

DATE: 20171205

DOCKET: M48522

Pardu J.A. (In Chambers)

BETWEEN

Jian Su

Appellant (Moving Party)

and

Sec-yong Lam, in his personal capacity and as
    Executor and Trustee of the Estate of Gab Yi Lam (also known as Gaby Yi Lam or
    Gab Yi Chu), Deceased

Respondent (Responding Party)

Jian Su, self-represented

David M. Goodman, for the respondent

Heard: In writing, December 4, 2017

On a motion for an
    extension of time to appeal from the judgment of Justice David G. Stinson dated
    April 19, 2017, dismissing the moving partys motion to set aside a consent
    order.

ENDORSEMENT

[1]

Jian Su moves for an extension of time to appeal
    from an April 19, 2017 decision that dismissed his motion to set aside a
    consent order.

[2]

The underlying consent order was made in 2009. It
    dismissed Mr. Sus action against the respondent. Before the consent order was made,
    Mr. Su had been ordered to pay the outstanding costs award against him and a
    further $25,000 for security for costs. The respondent brought a motion to
    dismiss the action because of these outstanding orders. Mr. Su was represented
    by counsel at the time and his counsel consented to the dismissal of this
    action and the property claims in another related proceeding. As the motion
    judge pointed out, by agreeing to forego his claims to an interest in the
    estate assets, Mr. Su avoided the dismissal of his support claim and he also
    avoided the need to post security for costs and payment of the outstanding
    costs award.

[3]

Mr. Su moved to set aside this consent order,
    some seven or eight years after it was made, alleging fraud and subsequently
    discovered facts as justification. He argued that the estate trustee falsely
    represented there were estate assets remaining to satisfy Mr. Sus potential
Succession
    Law Reform Act
, R.S.O. 1990, c. S.26
claim. The motion judge found that the documentary production made
    to Mr. Su before the consent order was made, had it been carefully and properly
    examined, would have already revealed the fact that no estate assets remained.
    The motion judge found as a fact that Mr. Su was not provided with any
    incorrect or misleading information about the assets of the estate at the time
    he agreed to the consent order. He concluded that Mr. Su failed to prove that
    he was induced by fraud to agree to the consent order, and failed to
    demonstrate that there were any after acquired facts or information that would
    warrant setting aside the consent order.

[4]

The test for determining whether to extend time
    to appeal has been summarized many times. Justice Epstein described the test in
    Reid v. College of Chiropractors, 2016 ONCA 779, at para. 14 as follows:

The governing
    principle is whether the justice of the case requires that an extension be
    given:
Rizzi v. Mavros
, 2007 ONCA 350
, 85 O.R. (3d) 401, at para. 17;
Enbridge Gas Distribution
    Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para.
    15. Each case depends on its own circumstances. The relevant considerations
    include:

a)

whether
    the moving party formed a
bona fide
intention to seek leave to appeal
    within the relevant time period;

b)

the
    length of, and explanation for, the delay in filing;

c)

any
    prejudice to the responding party, caused, perpetuated or exacerbated by the
    delay; and

d)

the
    merits of the proposed appeal.

[5]

I am not satisfied that the time to appeal should
    be extended in this case.

[6]

There is no evidence that Mr. Su formed the
    intention to appeal within the relevant time period.

[7]

There is no real explanation for the delay in
    filing the notice of appeal. The subject matter of the proposed appeal relates
    to litigation about the estate of Ms. Lam, who died in April 2004. Mr. Su and
    the respondent (the executor of Ms. Lams estate) have now been engaged in
    litigation for nearly 13 years, which includes a previous appeal by Mr. Su to
    this court that was dismissed on the merits:
Su v. Lam
, 2013 ONCA 464.

[8]

I am not persuaded there is any merit to the instant
    appeal. Mr. Su attempts to set aside a consent order made in February 2009, at
    a time when he was represented by counsel and when the consent order brought
    real advantages to him. As a result of the consent order, the respondent did
    not pursue its motion for security for costs or its motion to dismiss the
    action for non-payment of a costs order. The motion judges findings of fact
    about the absence of misrepresentation at the time of the consent order are not
    undermined by the material Mr. Su filed in support of his motion for leave to
    extend time to appeal. In large part, the filed materials cover many of the
    same grounds dealt with by this court in Mr. Sus previous appeal.

[9]

I am not persuaded that the justice of this case
    require an extension of time to appeal. The motion is dismissed with costs
    fixed to the respondent in the sum of $1,500.00, all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Thomson v. Durham (Police Services Board), 2017
    ONCA 958

DATE: 20171206

DOCKET: C63892

Strathy C.J.O., Juriansz and Huscroft JJ.A.

BETWEEN

Nora Thomson and Peter King

Plaintiffs (Appellants)

and

Durham Regional Police Services Board and Paulo
    Dellipizzi

Defendants (Respondents)

Joshua Evans, for the appellants

Nadia Marotta, for the respondents

Heard: December 4, 2017

On appeal from the order of Justice Myrna L. Lack of the Superior
    Court of Justice, dated May 16, 2017.

REASONS FOR
    DECISION

[1]

This is an appeal from an order, made on the respondents summary
    judgment motion, dismissing the appellants action on the basis it was not
    brought within the two-year limitation period set out in s 4 of the
Limitations
    Act
.

[2]

The appellants submit that s. 4 of the
Limitations Act
does
    not apply to their action as it is a proceeding to enforce a court order.
    Section 16(1)(b) of the
Limitations Act
provides there is no
    limitation period for the enforcement of a court order.

[3]

An order of disposition under s. 490(9) of the
Criminal Code
issued
    December 14, 2011 and revised June 27, 2012, ordered that specified items of
    property among property seized by the respondents from the appellants in 2010
    be released to them, and the remaining property be forfeited to the Crown. The
    appellants picked up some items from the Police Services Property Bureau on
    November 20, 2012 and January 24, 2013, but on January 9, 2013 claimed some of
    that property was missing or damaged. On March 2, 2013 a lawyer representing
    the appellants threatened but did not commence a civil action in respect of the
    missing and damaged property. On May 24, 2014 all remaining property in the
    respondents possession was forfeited to the Crown in accordance with the order
    of disposition. The appellants commenced this action on November 4, 2015.

[4]

The respondents moved for summary judgment on the basis that the action
    was barred by s. 4 of the
Limitations Act
because the appellants
    action was commenced more than two years after they knew that the property they
    claimed was missing or damaged. The motion was granted and the appellants have
    brought this appeal.

[5]

The appellants submit that the motion judge erred by saying The
    plaintiffs knew when they began the action that the defendants no longer had
    any of the seized property in their possession. They pleaded that. They were
    aware that the order of June 27, 2012 could not actually be enforced. The appellants
    point to paragraph 10 of their statement of claim that pleads they learned only
    on March 15, 2015 that the seized property had been forfeited to the Crown.
    They argue that they commenced their legal action within two years of that date
    and so the action was commenced in time.

[6]

The appellants misunderstand the import of the motion judges reasons.
    The remark of the motion judge is precisely correct. When the appellants
    commenced their action on November 4, 2015, they already knew all remaining
    property in the hands of the respondents had been forfeited to the Crown. They
    pleaded they knew that on March 15, 2015. Therefore, the motion judge reasoned
    the true and actual object of the action could not have been to enforce the
    order for the return of the goods. Instead, she reasoned the appellants
    actually started their action to claim for new court order for monetary damages
    based on allegations of neglect or refusal to return goods and damage to
    property.

[7]

We agree with the motion judges characterization of the appellants
    action and with her conclusion that it falls outside the scope of s. 16 (1) (b)
    of the
Limitations Act, 2002.
The latest that the limitation period for
    the appellants action for monetary damages could have begun was March 2, 2013 when
    they threatened legal action. They did not commence their action until more
    than two years later and the motion judge properly dismissed it.

[8]

The appeal is dismissed with costs in favour of the respondents fixed in
    the amount of $9000.00 inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

R.G. Juriansz J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Toronto-Dominion Bank v. Froom, 2017 ONCA 998

DATE: 20171218

DOCKET: C63040

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Arthur Scott L. Froom

Defendant (Appellant)

Arthur Froom, in person by videoconference

Todd J. Burke, for the respondent

Heard: December 15, 2017

On appeal from the order of Justice Mary E. Vallee of the
    Superior Court of Justice, dated March 29, 2016 and from the associated costs
    award dated June 3, 2016, and from the order of Justice M.L. Edwards of the
    Superior Court of Justice, dated December 6, 2016.

APPEAL BOOK ENDORSEMENT

[1]

In a statement of claim dated March 24, 2010, the Toronto-Dominion Bank
    sued the appellant for amounts owing on two Visa cards pursuant to written
    agreements dated May 24, 2002 and August 24, 2005.

[2]

On March 29, 2016, the motion judge dismissed the Banks motion for
    summary judgment on the statement of claim but also dismissed the appellants
    motion to strike the statement of claim in an affidavit filed by the Bank in
    support of its claim for summary judgment.

[3]

The motion judge also made various orders concerning the future conduct
    of the action.

[4]

The motion judge awarded costs of the motion to the appellant totalling
    $1,446.92.

[5]

On December 6, 2016, following a case management conferment, the case
    management judge ordered that the action not be administratively dismissed.

[6]

The appellant appeals from the orders that adversely affect him.  The
    appellants appeals are quashed.  None of the orders the appellant appeals are
    final orders.  They do not dispose of the action nor do they finally dispose of
    an issue or defence in the action.  Contrary to the appellants submissions, it
    remains open to the appellant to take the position that no contracts exist.
    The proper appeal route was to the Divisional Court.  The absence of a motion
    to quash does not afford jurisdiction to this court.

[7]

The Bank may deliver costs submissions within 10 days; the appellant may
    respond within 10 days thereafter.


COURT OF APPEAL FOR ONTARIO

CITATION: Toronto-Dominion Bank v. Tang, 2017 ONCA 990

DATE: 20171215

DOCKET: M48210 (C63851)

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

The Toronto-Dominion Bank

Plaintiff/Respondent

and

Weizhen Tang and Hong Xiao

Appellants

No one appearing for the appellants

Jeffrey Kukla, for the respondent

Heng Du, for Aping Co. Ltd.

Heard: December 14, 2017

APPEAL BOOK ENDORSEMENT

[1]

No one present for the moving parties.  Motion is dismissed as
    abandoned.  Costs to the TD Bank on a substantial indemnity basis, all in,
    fixed at $6,749.67 and to Aping Co. Ltd. on a partial indemnity scale fixed in
    the amount of $300 plus applicable taxes.  Approval of form of order dispensed
    with.


COURT OF APPEAL FOR ONTARIO

CITATION: Toronto-Dominion Bank, N.A. v. Lloyds
    Underwriters, 2017 ONCA 1011

DATE: 20171221

DOCKET: C63278, C63280, C63281 and C63282

Simmons, Brown and Fairburn JJ.A.

BETWEEN

TD Bank, N.A.

Plaintiff/Respondent

and

Lloyds
    Underwriters that subscribe to policy number

MMF/1710,
    primary London reference number B0509QA025509 and

excess
    London reference numbers QA025609, QA025709, QA025809,

and
    QA025909, Antares Underwriting Limited for itself and on

behalf
    of all members of Lloyds Syndicate 1274 (Aul) for the

operating
    year of 2009, Catlin Syndicate Limited for itself and

on
    behalf of all members of Lloyds Syndicate 2003 (SJC) for the

operating
    year of 2009, Novae Corporate Underwriting Limited

and/or
    Novae Syndicates Limited for themselves and on behalf

of all
    members of Lloyds Syndicate 2007 (NVA) for the

operating
    year of 2009, Ace Capital Limited, ACE Capital IV Limited,

and Ace
    Capital V Limited for themselves and on

behalf
    of all members of Lloyds Syndicate 2488 (AGM) for the

operating
    year of 2009, Brit UW Limited for itself and on behalf of

all
    members of Lloyds Syndicate 2987 (Brit) for the

operating
    year of 2009, Chaucer Corporate Capital (No. 3) Limited

(formerly
    known as Pembroke 4000 Limited) and/or

Pembroke
    4000 Limited, Chaucer Corporate Capital (No. 2) Limited,

and/or Ironshore
    Corporate Capital Ltd. for themselves and on

behalf
    of all members of Lloyds Syndicate 4000 (Pem) for the operating

year of
    2009, Aspen Insurance UK Limited, Great Lakes Reinsurance

(UK)
    PLC, Lexington Insurance Company, AIG Insurance Company of Canada (formerly
    known as AIG Commercial Insurance Company of Canada) and/or

AIG
    Commercial Insurance Company of Canada, Chartis Excess Limited

(formerly
    known as AIG Excess Liability Insurance International Limited)

and/or
    AIG Excess Liability Insurance International Limited, Allied World Assurance
    Company Ltd., Arch Insurance Company and/or Arch Insurance

Canada
    Ltd., Axis Specialty Insurance Company and/or Axis Specialty Limited,

Chubb
    Insurance Company of Canada, Endurance Speciality Insurance Ltd.,

Houston
    Casualty Company, Liberty Mutual Insurance Company,

Markel
    Bermuda Limited (formerly known as Max Bermuda Ltd.) and/or

Max
    Bermuda Ltd. and XL Insurance Company PLC (formerly known as

XL
    Insurance Company Limited) and/or XL Insurance Limited

Defendants/Appellants

Gary H. Luftspring and Sam R. Sasso, for the appellants
    London Underwriters and Axis

Jamieson Halfnight and Anne Juntunen, for the appellants
    Chubb Insurance Company of Canada and Liberty Mutual Insurance Company

Christopher Reain and Clarence Lui, for the appellant
    Arch Insurance Company and Arch insurance Canada Ltd.

Peter Greene and David Vaillancourt, for the appellant
    AIG Insurance Company of Canada and/or AIG Commercial Insurance Company of
    Canada and/or AIG Excess Liability Insurance International Limited

William Blakeney and Thomas Galligan, for the
    appellants, XL Insurance company PLC and/or XL Insurance Limited, Endurance
    Speciality Insurance Ltd., Houston Casualty Company and Markel Bermuda Limited
    and/or Max Bermuda Ltd.

Eric A. Dolden and Gerry J. Gill, for the appellants
    Allied World Assurance Company Ltd.

William G. Scott and Housep Afarian, for the respondent
    TD Bank, N.A.

Heard: November 28 and 29, 2017

On appeal from the judgment of Justice S.F. Dunphy of the
    Superior Court of Justice, dated December 22, 2016 and April 20, 2017.

REASONS FOR DECISION

OVERVIEW

[1]

The issues on appeal relate to a partial summary judgment granted in
    relation to an insurance policy.

[2]

TD Bank, N.A. (the Bank) is a named insured under a Bankers
    Comprehensive Crime, Professional Indemnity and Directors and Officers
    Liability Programme (the insurance policy) issued by the appellants, a
    syndicate of insurers (the insurers).

[3]

The insurance policy is divided into two parts. The second part provides
    directors and officers liability coverage. The first part is divided into two
    sections: a financial institutions bond (fidelity coverage, for, among other
    things, claims involving employee dishonesty) and a financial institutions
    professional liability policy (professional liability coverage, for, among
    other things, claims involving errors or omissions by the financial institution).

[4]

A Florida lawyer and customer of the Bank ran a Ponzi scheme involving
    the fraudulent sale of non-existing interests in structured settlements
    supposedly handled by his law firm. Substantial funds placed by investors in
    the scheme flowed through the law firms accounts at the Bank. After the scheme
    collapsed, about 19 investor groups sued the Bank. One investor group obtained
    judgment against the Bank based on claims for fraudulent misrepresentations by Bank
    employees and conduct by Bank employees that aided and abetted the fraudster.

[5]

Following that judgment, the Bank settled the other investor claims. The
    Bank then sought indemnity under both the professional liability coverage and
    fidelity coverage sections of the insurance policy for amounts paid to the
    investor groups. The appellants have denied coverage under both sections.

[6]

In this action, the Bank seeks a declaration that it is entitled to
    indemnity under the professional liability section of the insurance policy for
    loss relating to the Ponzi scheme and damages for breach of contract in the
    amount of $300,000,000, the amount of the available coverage. Further, to the
    extent that coverage is excluded under that section of the policy, the Bank
    seeks a declaration that it is entitled to indemnity and damages under the
    fidelity coverage section of the policy.

[7]

The Bank brought a motion for partial summary judgment while documentary
    production was underway and prior to oral discovery. In its motion, the Bank sought
    a declaration concerning the interpretation of one element of the preamble to
    the fidelity coverage section of the insurance policy. The interpretation
    sought related to the conduct of one former employee in relation to three of
    the investor groups. In support of its motion, the Bank asserted that
    resolution of these test claims would contribute to the resolution of the
    coverage issues. The element at issue is the underlined portion of the second
    paragraph of the preamble set out below:

NOW WE the Underwriters hereby undertake and agree, subject to
    the following terms, exclusions, limitations and conditions, to make good to
    the Assured, as stated in the Insuring Clauses
such
    direct financial loss sustained by the Assured
.

[8]

The motion judge granted partial summary judgment. He declared that the
    Bank sustained direct financial loss within the meaning of the second
    paragraph of Section One (A) of the Policy regarding at least some of the funds
    deposited [in the law firms] accounts at [the Bank] by [three of the investor
    groups].

[9]

The insurers appeal from the partial summary judgment.

[10]

In
    our view, this appeal must be allowed. In granting partial summary judgment,
    the motion judge made four material errors, rendering the judgment
    fundamentally flawed.

FIRST ERROR: FAILING TO PROPERLY INTERPRET RULE 20

[11]

First,
    the motion judge erred in entertaining and then granting the kind of summary judgment
    sought by the Bank. Rule 20 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, permits a party to seek summary judgment on all or part of the
    claim in the statement of claim: r. 20.01(1). The Banks motion did not seek
    judgment on all or part of any of the claims set out in the prayer for relief
    in its Statement of Claim. Instead, the Bank broke down its claim for indemnity
    under the fidelity coverage section of the insurance policy into its
    constituent elements and sought partial summary judgment on only one of the
    elements. Further, it sought an interpretation of that element only as it might
    apply to the damages it paid out to just three of the 19 investor groups.

[12]

Such
    a request for an order in respect of only one of several constituent elements
    of a claim for which relief is sought, and then only as it might affect a portion
    of that claim, is not a proper request for summary judgment on part of the
    claim in the statement of claim; it is merely a request to determine one of
    several issues of fact or mixed fact and law necessary to establish entitlement
    to relief in respect of a pleaded claim under the fidelity coverage section of
    the insurance policy. (The rules recognize an exception where the element
    involves a question of law.)
[1]
The result of the judgment is that no claim for which the Bank has sought
    relief has been granted, nor have any of its claims been dismissed. All of its
    claims for indemnification remain for determination at trial  on what will likely
    be a more fulsome factual record
[2]
.
    And no party has been released from the action. Given this result, the kind of
    partial summary judgment granted by the motion judge was not available under
    Rule 20:
CIBC v. Deloitte & Touche
, 2016 ONCA 922, 133 OR (3d)
    561, at para. 39. Accordingly, the motion judge failed to properly interpret
    the scope of relief available under Rule 20.

SECOND ERROR: FAILING TO INTERPRET THE POLICY AS A WHOLE

[13]

Second,
    the motion judge ignored the fundamental principle of contractual
    interpretation that a provision in a contract must be interpreted in light of
    the contract as a whole:
Ventas, Inc. v. Sunrise Senior Living Real Estate
    Investment Trust
, 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24;
Dumbrell
    v. The Regional Group of Companies
2007 ONCA 59, (2007) 85 O.R. (3d) 616,
    at paras. 52-56. This led him to commit two interpretive errors.

[14]

Error
    one is that the Bank claims indemnification for the amounts it paid to
    investors pursuant to the American jury verdict and settlements under both the professional
    liability coverage and fidelity coverage sections of the insurance policy. Its
    claim under the fidelity coverage section is pleaded as an alternative to that
    under the professional liability coverage section. Given that structure of the
    Banks claim, an interpretation of part of one insuring clause in one section
    of the insurance policy to ascertain whether it would afford coverage would
    require taking into account the provisions of both sections of the policy. The
    motion judge failed to do so. He completely ignored how the provisions of the professional
    liability coverage section of the insurance policy might inform the
    interpretation of the insuring clause in the fidelity coverage section.

[15]

Error
    two is that the Banks claim for indemnity under the fidelity coverage section
    of the insurance policy would require establishing several constituent elements
    of a claim under the first insuring clause.
[3]
The motion judge limited his analysis to only some of those elements. He
    further confined his analysis to how those elements might apply to only three
    of the 19 investors settlements. His interpretive analysis failed to take into
    account how the remaining elements of the insuring clause might inform the
    interpretation of the few elements put in issue by the Bank on the motion. In
    so doing, the motion judge failed to interpret one provision of the contract by
    reading the text of the insurance policy as a whole.

THIRD ERROR: ADOPTING A THEORY OF LIABILITY NOT ADVANCED BY THE PARTIES

[16]

The
    third material error committed by the motion judge concerns a matter of
    procedural fairness. In concluding that the judgment and settlements paid to
    three of the investor groups constituted a direct financial loss sustained by
    the Assured in that it was a loss of funds or Property of the Bank within
    the meaning of the fidelity coverage sections ownership clause
[4]
,
    the motion judge adopted a theory not pleaded or advanced by the parties  that
    the Bank held the funds deposited by investors into the law firms accounts as
    a constructive trustee. The motion judge raised this theory on his own during
    the course of oral argument of the motion, without affording the parties an
    opportunity to properly brief the theory or develop the record to address the
    theory. That resulted in material unfairness to the appellants:
Rodaro v.
    Royal Bank of Canada
(2002), 59 O.R. (3d) 74, at paras. 60-63. In this
    regard, the motion judges theory went well beyond the Banks reliance on the
    doctrines of knowing assistance in a breach of trust and knowing receipt of
    trust funds.

FOURTH ERROR: MISCONSTRUING THE RELIEF SOUGHT BY THE APPELLANTS

[17]

Fourth,
    in determining this was an appropriate case in which to grant partial summary
    judgment, the motion judge relied on his view that the insurers were asking him
    to grant reverse summary judgment  in other words, to hold that the Bank did
    not suffer a direct financial loss  and thus were effectively acknowledging
    that this was an appropriate case for summary judgment.

[18]

In
    reaching this conclusion, the motion judge relied on the Order Requested
    section of the insurers joint factum filed on the summary judgment motion,
    which reads as follows:

For all the above reasons, the Insurers respectfully request an
    Order denying TDs summary judgment, with costs,
on the basis that TD has
    not shown it suffered any direct financial loss within the meaning of that
    term as used in the preamble
. [Emphasis added by the motion judge].

[19]

We
    do not accept that the emphasized language gives rise to a conclusion that the
    insurers were seeking a reverse summary judgment in their favour. The
    immediately preceding section of the insurers factum is titled The Issues on
    this Motion should be left for determination on a fuller record or at trial. Read
    in context, the only reasonable conclusion is that the only order the insurers
    sought was the one they asked for  an order denying the Banks request for
    summary judgment with costs on the basis that the Bank failed to meet its
    burden on the motion.

[20]

This
    finding by the motion judge, too, was procedurally unfair to the Bank.

DISPOSITION

[21]

Cumulatively,
    the errors we have identified resulted in the motion judge granting partial
    summary judgment of a kind not available under Rule 20, following a
    procedurally unfair motion process, which was characterized by the motion judge
    ignoring a fundamental principle of contractual interpretation. As a result, we
    allow the appeals, set aside the order, and direct the action proceed to trial
    subject to any further order in the court below.

[22]

The
    insurers are awarded their costs of the appeal on a partial indemnity scale
    fixed in the global amount of $45,000 inclusive of disbursements and applicable
    taxes.

Janet Simmons J.A.
David Brown J.A.
Fairburn J.A.

[1]
Where one element of a cause of action involves a question of law, such as the
    existence of a duty of care in a negligence claim, the rules provide a summary
    mechanism by which to determine that legal issue before trial, either by way of
    r. 21.01(1)(a)  where the determination of the question may dispose of all or
    part of the action, substantially shorten the trial or result in a substantial
    savings of costs, or under r. 20.04(4), where on a summary judgment motion
    the court is satisfied that the only genuine issue is a question of law.

[2]

The factual record in this case consisted of two affidavits.
    One was from a Bank employee who accessed the Banks archived wire transfer
    database to confirm that four wire transfers at issue were made. The second was
    from a law clerk employed by the Banks solicitors. She attached numerous
    documents to her affidavit without identifying, in many instances, the source
    of her knowledge of the origins of the document and without asserting a belief
    in the truth of the contents. Although the authenticity of many of the
    documents was uncontested, the truth of the contents of some of the documents
    could be disputed at trial.

In relying
    on the factual record, the motion judge noted that: the insurers did not file
    responding material; neither of the affiants was cross-examined; and many of
    the public record documents were referenced and relied on by the insurers in
    their pleadings. These comments contrasted with those made by the motion judge
    on an earlier preliminary motion to stay the summary judgment motion. At that
    time, the motion judge stated that given the early stage of the proceedings an
    exceptional degree of caution would be required to avoid imputing an adverse
    inference from the failure to call evidence that the insurers did not yet have.

Based on
    our review of the record and the outstanding issues, we are far from persuaded
    that inconsistent findings of fact would be unlikely to occur if this judgment
    were to stand and if this case were to proceed to trial.

[3]

Insuring Clause Number 1 in the fidelity
    coverage section, when read together with the Preamble, provides, in part:

NOW WE the Underwriters hereby
    undertake and agree, subject to the following terms, exclusions, limitations
    and conditions, to make good to the Assured,  such direct financial loss
    sustained by the Assured  [b]y reason of and directly caused by dishonest or
    fraudulent acts by Employees of the Assured.

[4]

The Ownership provision, Clause
    Number 39 of the fidelity coverage section reads as follows:

This Policy shall apply to loss
    of funds or Property (1) owned by the Assured, (2) held by the Assured in any
    capacity, (3) for which the Assured is legally liable and/or responsible or for
    which the Assured has instructions to insure


COURT OF APPEAL
    FOR ONTARIO

CITATION: Vethanantham (Re), 2017 ONCA 951

DATE: 20171206

DOCKET: C63231

Simmons, van Rensburg and Nordheimer JJ.A.

IN THE MATTER OF: Anton Vethanantham

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jonathan Fernandes, for Anton Vethanantham

Michael Fawcett, for the Attorney General of Ontario

Barbara Walker-Renshaw, for the Person in Charge of the Ontario
    Shores Centre for Mental Health Sciences

Heard: October 30, 2017

On appeal against the disposition of the Ontario Review
    Board, dated November 30, 2016, with reasons dated January 4, 2017.

REASONS FOR DECISION

[1]

Anton Vethanantham appeals from
    the November 30, 2016 disposition of the Ontario Review Board (the Board), with
    accompanying reasons dated January 4, 2017, ordering his detention at the
    General Forensic Unit of the Ontario Shores Centre for Mental Health. The
    hearing before the Board was held on November 25, 2016.

[2]

The appellant is a 54 year-old man,
    who was born in Jaffna, Sri Lanka.
He immigrated to Canada as a young
    man and became a Canadian citizen in 1992.
He was
    married. He had three children, but one of those children has passed away. Because
    of the events leading up to the appellants current situation, neither his ex-wife
    nor his children wish to have contact with him.

[3]

The appellant is diagnosed with schizophrenia,
    paranoid type, and alcohol abuse.

[4]

On March 5, 2008, the appellant was found not criminally
    responsible (NCR) in respect of one count of criminal harassment and three
    counts of breach of probation. The criminal harassment charge arose from
    harassing telephone calls that the appellant made to his ex-wife in
    contravention of an existing probation order. The probation order was imposed
    as a result of a conviction for assault with a weapon against his ex-wife.
The appellant has been subject to the supervision of
    the Board since 2008. The appellants psychiatric problems, however, date back
    to 1998. His criminal record includes several prior convictions for assault and
    failing to comply with court orders.

[5]

Between 2009 and
    December 2015, the appellant lived in the community subject to a conditional
    discharge. He was detained in December 2015 after he decompensated following
    termination of his antipsychotic medication in September 2014. By the fall of
    2015, the appellant had left the stable home he had with family,
begun living in motels and shelters, resumed drinking
    alcohol, terminated contact with his treatment team, and made efforts to contact
    his ex-wife.

[6]

On November 25, 2016, a hearing
    was held to determine whether the appellant remained a significant threat to
    the safety of the public. The evidence before the Board consisted of a hospital
    report, the evidence of Dr. Pytyck, the appellants treating psychiatrist, and
    the evidence of the appellant.

[7]

The Board accepted the evidence of
    Dr. Pytyck that the appellant remained a significant risk to public safety. Although
    the appellant had returned to his baseline mental health status three months
    before the Board hearing, post-detention assessment indicated he was psychotic
    upon readmission to the hospital
in 2015.
Dr. Pytyck also gave evidence that the appellant has a complete lack of insight
    into his mental illness. If he were discharged, he would immediately cease
    taking his medication; and he would not follow up with his psychiatric care. Those
    realities, in turn, give rise to the very real concern that the appellant would
    once again return to consuming alcohol; that he would experience psychosis; and
    that those factors would lead to potentially violent conduct and/or behaviour
    that would cause psychological harm to others.

[8]

We reject the
    appellant's submission that the Board's finding that he poses a significant
    threat to public safety is unreasonable.

[9]

The Board's findings
    that the appellant suffers from schizophrenia, paranoid type; that he lacks
    insight into his mental illness; and that, if not subject to Board supervision,
    he would discontinue medication and seek inappropriate housing  leading to additional
    stressors, deterioration of his mental condition, alcohol abuse, and harmful
    behavior  are amply supported by the record.

[10]

As noted by the Board,
    in addition to the index offences, the appellant has a history of assaultive
    behavior and breaches of court orders. Moreover, criminal harassment is a
    serious criminal offence requiring proof that the victim(s) reasonably feared
    for their safety:
Criminal Code
, R.S.C. 1985, c. C-46, at s. 264(1). Further,
    there was evidence before the Board that after being permitted to resume
    consumption of alcohol the appellant drove with a blood alcohol level over
twice the legal limit
[1]
.
    Based on the appellant's history and Dr. Pytycks evidence, it was open to the
    Board to conclude that, if not subject to the Board's supervision, the
    appellant would likely experience psychosis and act out in a violent manner or
    cause psychological harm to others.

[11]

The Board's decision
    not to grant a conditional discharge and that a detention order is the least
    onerous and least restrictive alternative is also reasonable. Among other
    things, the Board noted that the appellant is incapable of consenting to
    treatment and that the hospital must be in a position to approve housing. These
    considerations were entirely reasonable. Under the law as it currently stands,
    no condition relating to treatment can be included in a conditional discharge
    for a NCR party who is incapable of consenting to treatment:
Criminal
    Code
,
at s. 672.55(1);
R. v. Kalra
, 2016 ONCA 390, at para. 19. Further,
    unlike the situation in the past, the appellant has no suitable place to live.
    Where, as here, approved housing is an important risk management tool, a
    conditional discharge is not appropriate because it cannot include an approved
    residence clause:
R. v. Simpson
, 2010 ONCA 302, at para. 4.

[12]

The appeal is dismissed.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

[1]

All parties acknowledged that, following the Board hearing,
    the charges in relation to this conduct were withdrawn. However, the Board was
    not precluded from relying on evidence of the conduct underlying the charges in
    the form of reference to information contained in a police report. See
Winko
    v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, at paras. 61-62;
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 29; and
R.
    v. Wodajio
, 2005 ABCA 45, 194 C.C.C. (3d) 133, at paras.
    18-38.