COURT OF APPEAL FOR ONTARIO

CITATION: O'Reilly v. IMAX Corporation, 2019 ONCA 991

DATE: 20191217

DOCKET: C66591

Strathy C.J.O., Doherty and Sharpe JJ.A.

BETWEEN

Larry OReilly

Plaintiff (Respondent/

Appellant by way of cross-appeal)

and

IMAX Corporation

Defendant (Appellant/

Respondent by way of cross-appeal)

M. Catherine Osborne and Justin Tetreault, for the respondent/appellant by way of cross-appeal

Trevor Lawson and Brandon Kain, for the appellant/respondent by way of cross-appeal

Heard: November 1, 2019

On appeal from the
    judgment of Justice Mario D. Faieta of the Superior Court of Justice, dated January
    25, 2019, with reasons reported at 2019 ONSC 342, 52 C.C.E.L. (4th) 50, and
    supplementary reasons, dated February 21, 2019, with reasons reported at 2019
    ONSC 1239, 52 C.C.E.L. (4th) 85.

Strathy C.J.O.:

[1]

This appeal concerns an issue that is being litigated with increasing
    frequency: the entitlement of a wrongfully dismissed employee to exercise stock
    options, receive bonuses, or take advantage of other aspects of his or her
    compensation package during the reasonable notice period.
[1]

[2]

In this case, the employer, IMAX, contended that the terms of the employees
    stock options and restricted share units (RSUs) prevented them from vesting
    after the date he was dismissed without cause. The motion judge rejected this
    submission, finding that the options and share units continued to vest during
    the reasonable notice period and that the employee was entitled to damages for the
    loss of the opportunity to exercise them.

[3]

The employer appeals to this court, arguing that the language of these incentive
    agreements resulted in their cancellation on the effective termination date. It
    submits that the relevant contractual language is substantially the same as that
    in
Kieran v. Ingram Micro Inc.
(2004), 189 O.A.C. 58, leave to appeal
    refused, [2004] S.C.C.A. No. 423, in which this court found the employees
    options had been cancelled as a result of his dismissal.

[4]

The employee cross-appeals, claiming the motion judge erred in
    calculating his damages for the loss of the options and RSUs.

[5]

For the reasons that follow, I would dismiss both the appeal and the
    cross-appeal.

I.

Factual Background

[6]

The respondent, Larry OReilly, had been employed for 22 years with IMAX
    Corporation when he was dismissed as President, Institutional and Strategic
    Sales and Executive Vice President, Sales, on January 4, 2016. The termination was
    to be effective March 31, 2016.

[7]

His compensation package included a base salary, commissions, group
    benefits, and participation in both a Long Term Incentive Plan (LTIP), which
    included both RSUs and stock options, and a Stock Option Plan (collectively, the
    awards). The terms of the relevant plans are set out below.

[8]

After unsuccessful attempts to negotiate a severance package, IMAX extended
    the effective termination date from March 31, 2016 to July 8, 2016. It advised
    Mr. OReilly that any awards that had already vested could be exercised for up
    to 30 days after the latter date. Any awards that had not vested as of that
    date would be cancelled and forfeited without any consideration.

[9]

Mr. OReilly brought an action for wrongful dismissal. The parties
    agreed that the issues could be dealt with by summary judgment.

II.

The Motion Judges Reasons

[10]

The motion judge found that the respondent was entitled to damages,
    calculated on the basis of 24 months reasonable notice, together with all
    commissions outstanding at the date of termination. The judge also determined
    the respondents damages for wrongful dismissal, including the damages for lost
    opportunity to earn commissions on sales during the reasonable notice period,
    the pension contributions that would have been made during that period, and the
    value of benefits lost during the notice period.

[11]

None of these conclusions is subject to appeal.

[12]

The remaining issue was the respondents claim that the awards were a
    fundamental part of his compensation and that he was entitled to damages for
    the lost opportunity to exercise the awards that would have vested during the
    reasonable notice period.

[13]

The motion judge concluded that the respondents damages for the loss of
    the awards should be calculated on the basis of what would have probably
    happened had he remained employed until the end of the notice period. He noted
    that the respondent had exercised his options in the past and that he therefore
    would likely have done so in this case, had his employment not been terminated.

[14]

The motion judge found that the language of the relevant awards was not
    sufficient to cancel the respondents entitlement to exercise the awards or to
    remove his entitlement to damages for their loss. He was therefore entitled to
    damages for the loss of the right to exercise the RSUs and stock options that
    would have vested during the reasonable notice period.

[15]

The appellant appeals this aspect of the judges order.

[16]

Having concluded that the respondent was entitled to damages, the motion
    judge was tasked with determining when the respondent would have exercised his right.
    The motion judge accepted the respondents evidence that he would have
    exercised the options at the earliest possible opportunity. However, as there
    were corporate policies that restricted the timing of the sale of the shares,
    he directed the parties to deliver further submissions on when the resulting
    shares would have been sold. Having received and heard those submissions, the
    motion judge issued supplementary reasons, calculating damages on the basis
    that the respondent would have sold the shares that vested during the
    reasonable notice period five months after their vesting date.

[17]

This determination is the subject of the cross appeal.

III.

The Contractual Provisions

[18]

The LTIP contained provisions for the award of both RSUs and stock
    options:

RSUs under the LTIP

This Agreement sets forth the general terms and conditions of
    Restricted Share Units (RSUs). By accepting the RSUs, the Participant agrees
    to the terms and conditions set forth in this Agreement and the IMAX 2013 Long
    Term Incentive Plan (the
IMAX LTIP
).

4.
Termination of Employment Generally
.
    In the event that the Participants employment with the Company terminates for
    any reason other than death, Disability or for Cause, the RSUs shall cease to
    vest and any unvested RSUs shall be cancelled immediately without consideration
    as of the date of such termination. Any vested RSUs shall continue to be
    settled on the applicable Settlement Date.

5.
Death; Disability
. If the
    Participants employment with the Company terminates as a result of the
    Participants death or Disability, a portion of the RSUs shall vest such that,
    when combined with previously vested RSUs, an aggregate of 50% of the RSUs
    granted pursuant to the Agreement shall have vested. Any vested RSUs shall be
    settled on the applicable Settlement Date and any unvested RSUs shall be
    cancelled immediately without consideration as of the date of termination.

6.
Termination for Cause
. If the
    Participants employment with the Company terminates for Cause, any outstanding
    RSUs, whether or not vested, shall be cancelled immediately without
    consideration as of the date of termination, and the
Participant
    shall have no further right or interest therein.

Stock Option Grants under the LTIP

This Agreement sets forth the general terms and conditions of
    Options. By accepting the Options, the Participant agrees to the terms and
    conditions set forth in this Agreement and the IMAX Corporation Long-Term
    Incentive Plan (the
IMAX LTIP
).

(5)
Termination of Employment Generally
.
    In the event that the Participants employment with the Company terminates for
    any reason other than death, Disability or for Cause, the Options shall cease
    to vest, any unvested Options shall immediately be cancelled and revert back to
    the Company for no consideration and the Participant shall have no further
    right or interest therein. Any vested Options shall continue to be exercisable
    for a period of thirty (30) days following the date of such termination;  To
    the extent that any vested Options are not exercised within such period
    following termination of employment, such Options shall be cancelled and revert
    back to the Company for no consideration and the Participant shall have no
    further right or interest therein.

[19]

A separate Stock Option Plan provided for the award of stock options in
    addition to those provided under the LTIP. The relevant provision stated as
    follows:

Stock Option Grants under the Stock Option Plan

7. Termination of Employment, Consulting Agreement or Term of
    Office

(a) In the event that a
Participants
employment,
    consulting arrangement or term of office with the
Company
or one of
    its
Subsidiaries
terminates for any reason, unless the
Board
or the
Committee
determines otherwise, any
Options
which have
    not become
Vested Options
shall terminate and be cancelled without any
    consideration being paid therefor. [Emphasis in original.]

IV.

Analysis

A.

Standard
    of review

[20]

The respondent concedes the appellants
    submission that the applicable standard of review is correctness, referring to
Ledcor
    Construction Ltd. v. Northbridge Indemnity Insurance Co.
,
    2016 SCC 37, [2016] 2 S.C.R. 23,
at paras. 24, 27-39. See
    also:
Mikelsteins v. Morrison Hershfield Limited
,
2019 ONCA 515, 56 C.C.E.L. (4th) 1, at
    para. 12,
leave to appeal requested, 38806
;
Manastersky
    v. Royal Bank of Canada
, 2019 ONCA 609, 146 O.R. (3d) 647
, at para. 44, leave to appeal requested, 38788;

Styles v. Alberta Investment Management Corporation
, 2017 ABCA 1, 44 Alta. L.R. (6th) 214, at para. 19, leave to appeal
    refused, [2017] S.C.C.A. No. 76
.

[21]

I begin with the governing principles applicable
    to the issue on this appeal.

B.

The governing principles

[22]

The principle underlying an award of damages for wrongful dismissal is
    that the terminated employee is entitled to compensation for all losses arising
    from the employers breach of contract in failing to give proper notice:
Paquette
    v. TeraGo Networks Inc.
, 2016 ONCA 618, 352 O.A.C. 1, at para. 16. The
    purpose of damages is to place the employee in the same financial position they
    would have been in had such notice been given:
Sylvester v. British
    Columbia
, [1997] 2 S.C.R. 315, at para. 1. The goal, in other words, is to
    make the employee whole again.

[23]

It has long been established that a wrongfully terminated employee is
    entitled to compensation for the loss of contractual benefits that they would
    have earned during the reasonable notice period, including the loss of pension
    benefits, bonuses, stock options, or other incentives:
Taggart v. Canada
    Life Assurance Co.
, 2006 C.L.L.C 210-007 (Ont. C.A.) (pension benefits);
Paquette
(bonuses);
Kieran
(stock options);
Veer v. Dover Corporation
    (Canada) Ltd.
(1999), 120 O.A.C. 394 (stock options); and
Gryba v.
    Moneta Porcupine Mines Ltd
. (2000), 139 O.A.C. 40, leave to appeal
    refused, [2001] S.C.C.A. No. 92 (stock options).

[24]

In this courts decision in
Taggart
, Sharpe J.A. articulated
    the approach to be taken by courts in determining an employees claim. At para.
    12 of his decision, he stated:

In my opinion, the proper way to analyze the respondents claim
    is to consider:

(1)

his common law right to damages
    for breach of contract, and

(2)

whether the terms of the [contract]
    alter or remove a common law right.

[25]

With regards to the first inquiry, the employee will have a common law
    right to damages where they would have earned a benefit but for the employers
    breach of contract:
Taggart
, at para. 20. This will generally be the
    case where the benefit can be described as an integral part of the terminated
    employees compensation:
Paquette
, at paras. 17, 30;
Lin v.
    Ontario Teachers Pension Plan
, 2016 ONCA 619, 402 D.L.R. (4th) 325, at
    para. 86.

[26]

If a common law right is established, the question at this stage is
    whether there is something in the language of the [contract] between the
    parties that takes away or limits that common law right:
Taggart
, at
    para. 20. In the context of a stock option plan, therefore, the question is
    whether there is language in the plan that specifically removes the employees
    common law entitlement. As noted by van Rensburg J.A. in
Paquette
,
    however, [t]he question is not whether the contract or plan is ambiguous, but
    whether the wording of the plan unambiguously alters or removes the
    [employees] common law rights: at para. 31. In undertaking this analysis, the
    proper focus is on the wording of the particular plan:
Kieran
, at
    para. 58, citing
Brock v. Matthews Group Ltd.
(1991), 43 O.A.C. 369,
    at para. 22.

[27]

A number of decisions of this court have applied these general
    principles in the context of stock option plans. For instance, in
Brock
,
    the court held that an employee was not entitled to exercise his options up to
    the expiration of the period of reasonable notice because the relevant plans
    established that, regardless of the mode of termination, his right was extinguished
    on his
ceasing to be an employee
 and that any
    options had to be exercised 15 days
from the date notice
    of dismissal
is given: at paras. 14, 16, 22-23 (emphasis in original). The
    language thus unambiguously removed the common law right.

[28]

In contrast, in
Veer
, Goudge J.A. held that an employee was entitled
    to exercise his stock options up to the end of the notice period because,
    unlike in
Brock
, the language of the plan did not expressly extinguish
    his rights on wrongful dismissal. The relevant contractual language was as
    follows:

If the option holders employment with the corporation
is terminated for any reason other than set forth in paragraphs
    6, 7 or 8 above
[death, retirement or incapacity],
whether such termination be voluntary or involuntary
,
    without his having fully exercised his option, the option shall be cancelled
    and he shall have no further rights to exercise his option or any part thereof
    and all of his rights hereunder shall terminate as of the effective date of
    such termination. [Emphasis in original.]

[29]

Goudge J.A. rejected the appellants argument that the inclusion of the
    reference to
involuntary
termination (i.e.,
    termination initiated by the employer), necessarily included wrongful
    termination without notice. He observed, at para. 14:

In my view, voluntary termination refers to a termination
    that is consensual or initiated by the employee, whereas involuntary
    termination is that initiated by the employer. In either case, the termination
    contemplated must, I think, mean termination according to law. Absent express
    language providing for it, I cannot conclude that the parties intended that an
    unlawful termination would trigger the end of the employees option rights. The
    agreement should not be presumed to have provided for unlawful triggering
    events.
Rather, the parties must be taken to have
    intended that the triggering actions would comply with the law in the absence
    of clear language to the contrary
. There is no such language in these stock
    option agreements. [Emphasis added.]
[2]

[30]

Similarly, in
Gryba
, the majority of the court held that,
    while, as in
Brock
, the plan spoke of the optionee ceasing to be
    employed, it also established that the date for the exercise of stock options
    is 30 days following the
effective
date of termination. The majority
    found that the effective date would include the notice period and therefore
    the employee was entitled to claim damages: at para. 51 (emphasis in original).
    For the majority, the plan was distinct from the one at issue in
Brock
,
    where the right was to be extinguished regardless of whether the mode of
    termination was lawful or unlawful:

The wording of the stock option plan in this case can be read
    as contemplating a lawful notice of termination and the effective date of the
    cessation of employment is the end of the notice period. Our interpretation is
    supported by the fact that the stock option clause also provides that in the
    event of death or dismissal for cause the employee has no right to exercise
    stock options: at para. 51.
[3]

[31]

Finally, while
Paquette
dealt with the right to receive bonuses,
    not stock options, van Rensburg J.A. reviewed a series of stock option cases,
    including
Kieran
,
Gryba
,
Veer
, and
Brock
. She
    noted that the timing of the exercise of an option is key to its value to an
    employee and that the cases have required clear language to limit the right to
    exercise options on termination. Language such as termination or cessation
    of employment has been insufficient to prevent the exercise of an option during
    the wrongful dismissal period: at paras. 40-41. She suggested that the approach
    in these cases can be summed up by the language of Goudge J.A. in
Veer
:
    the parties must be taken to have intended that the triggering actions [for
    the cancellation of an employees stock option rights] would comply with the
    law in the absence of clear language to the contrary:
Paquette
, at
    para. 42, citing to
Veer
, at para. 14.

[32]

A useful summary of the principles set out in
Taggart
,
Lin
,
    and
Paquette
is provided in
Manastersky
, at paras. 39-43. At
    the risk of paraphrasing Brown J.A., in light of the foregoing analysis, I would
    further summarize as follows:

1. A wrongfully dismissed employee is
    entitled to damages for the loss of wages, salary and other benefits, that
    would have been earned during the reasonable notice period.

2. This principle applies to bonuses,
    stock options, or incentives that are an integral part of the employees
    compensation, as well as pension benefits that would have accrued or been
    earned during the reasonable notice period.

3. In considering whether the loss of
    such benefits is recoverable, the court undertakes a two-step analysis.

4. The first step requires a
    determination of the employees common law right to damages for breach of
    contract, bearing in mind that the measure of damages is the amount to which
    the employee would have been entitled had the employer performed the contract.

5. The second step requires the court
    to determine whether the terms of the relevant contract or plan unambiguously
    alter or remove the employee's common law rights, having regard to the
    presumption that the parties intended to apply the law, in the absence of clear
    language to the contrary.

[33]

Before applying these principles to the facts of this case, I will
    address the appellants submission
that the contractual
    language here is on all fours with the contract in
Kieran
and that the appeal must therefore be allowed.

C.

Kieran v. Ingram Micro Inc.

[34]

The appellant does not dispute the principles set out above. Rather, as
    I have noted, it simply takes the position that the contractual language in
Kieran
is substantially the same as the language of the IMAX contract and that the
    outcome in this case should therefore be the same. The appellant points out
    that the respondent has not asked the court to strike a five-judge panel for
    the purpose of hearing argument that
Kieran
should be overruled.

[35]

For the reasons that follow, I would not accept the appellants
    submission that
Kieran
is dispositive of this case. The contractual
    language is not substantially the same.

[36]

Mr. Kieran was a Senior Vice President of Ingram Micro Inc. This court
    reversed the trial judges finding that he had resigned from his position and
    instead found that he had been constructively dismissed. However, it found that
    he had successfully mitigated his damages by finding alternative employment and
    thus sustained no damages. This court also affirmed the trial judges dismissal
    of his claim for damages of $1.2 million for the loss of stock options that
    would have vested during the period of reasonable notice. The courts decision
    was based on a finding that, despite the existence of a common law right to
    damages, that right was effectively extinguished by unambiguous language in the
    relevant stock option plans.

[37]

In
Kieran
, there were three plans at issue: (a) the Restricted
    Plan; (b) the Equity Plan and (c) the Rollover Plan. The language of the Restricted
    and Equity plans was quite similar, while the Rollover Plan was somewhat distinct.
    The appellant submits that the language in the Rollover Plan is substantially
    the same as in the plans in this case.

[38]

The Restricted Plan provided:

If Participants employment with Micro or any Affiliate
is terminated for any reason
other than death,
    disability  or retirement prior to the time when all Shares have become
    Unrestricted Shares , Restricted Shares shall be repurchased by Micro at the
    lower of (x) the Purchase Price and (y) the Fair Market Value of such Shares on
    the Repurchase Date.
[A]ny termination of a
    participants employment for any reason shall occur on the date Participant
    ceases to perform services for Micro or any Affiliate without regard to whether
    Participant continues thereafter to receive any compensatory payments therefrom
    or is paid salary thereby in lieu of notice of termination
. [Emphasis
    added].

[39]

The Equity Plan provided:

Except as the Committee may at any time otherwise provide or as
    required to comply with applicable law, if the Participants employment with
    Micro or its Affiliates
is terminated for any reason
other than death, disability, or retirement, the Participants right to
    exercise any Non-Qualified Stock Option or Stock Appreciation Right
shall terminate
and such Option or Stock Appreciation
    Right shall expire, on  the sixtieth day following such termination of
    employment. [Emphasis added].

[40]

The Equity Plan also gave an employee leaving by reason of death,
    disability, or retirement a one-year period within which to exercise his or her
    options. As well, like the Restricted Plan, the Equity plan defined the date on
    which the employee ceased to perform services as
without
    regard to whether the employee continues thereafter to receive any compensatory
    payments therefrom or is paid salary thereby in lieu of notice of termination

    (emphasis added).

[41]

The Rollover Plan provided:

Except as the Committee may at any time otherwise provide or as
    required to comply with applicable law, if the Participants employment with
    the Participants Employer or any of its Subsidiaries is
terminated
    for any reason
other than death, permanent and total disability,
    retirement or Cause, the Participants right to exercise any Non-Qualified
    Stock Option
shall terminate
, and such Option
    shall expire on the 60th day following such termination of employment. [Emphasis
    added].

[42]

The Rollover Plan was distinct because it did not specifically address,
    as did the Restricted and Equity Plans, a situation where the employee was
    given compensatory payments in lieu of notice of termination: at para. 52.
    However, the General Provisions of the Rollover Plan provided that the employer
    could dismiss the employee at
any time
,
free from any liability or any claim under the Plan or
    otherwise, unless otherwise expressly provided in the Plan or in any Option
    Agreement
 (emphasis added). The plan provided exceptions from this
    general provision for employees terminated by death, disability, or retirement.
    In these cases, the employees would have one year to exercise their options,
    post-employment. No exception was provided for employees terminated without
    cause.

[43]

The trial judge found that the provisions of the plans dealing with the
    employees rights on termination were virtually identical:
Kieran v.
    Ingram Micro Inc.
, [2001] O.J. No. 4318 (S.C.), at para. 60. He held that
    the language in the plans in the instant case clearly contemplates a
    termination made unlawful by no, or too little, notice and provides that in
    determining the date of termination, any continuing compensation or salary in
    lieu of notice is to be disregarded: at para. 66.

[44]

This court affirmed the trial judges decision, finding that the
    language of the plans was unambiguous. In examining the specific language of
    the three stock option plans, Lang J.A. made three key observations.

[45]

First, the plans unambiguously stated that Mr. Kierans right to
    exercise his stock options would expire if his employment was terminated for
    any reason other than death, disability, retirement (or cause, in the case of
    the Rollover Plan): at paras. 59-60.

[46]

Second, the Restricted and Equity plans specifically provided that Mr.
    Kierans employment terminated on the date he ceased to perform services,
    without regard to whether he continued to receive compensatory payments or
    salary in lieu of notice: at para. 59.

[47]

And third, the Rollover Plan provided that the employer could dismiss
    the employee at any time free from any liability or any claim under the Plan
    or otherwise, unless otherwise expressly provided in the Plan or in any Option
    Agreement: at para. 51. The plan provided that if an employee was terminated
    by reason of death, disability, or retirement, they would have one year to
    exercise their options, post employment: at para. 50. It did not make any
    express statements regarding avenues of claim for employees in the event they
    were terminated by wrongful dismissal.

[48]

In light of these observations, Lang J.A. found that all three plans
    excluded a claim for shares or options that vested during the reasonable notice
    period. An examination of all three plans demonstrated that the relevant
    provisions had two features, expressed in one way in the Restricted Plan and
    the Equity Plan and another way in the Rollover Plan. First, each plan
    established that an employee terminated without cause would have no entitlement
    to exercise any option rights and, second, each plan determined when that would
    occur. The Restricted Plan and the Equity Plan established that termination
    would occur on the date the employee ceased to perform services whether or not
    he or she continued to receive salary in lieu of notice. These provisions
    clearly and unambiguously took away the employees common law rights. The
    Rollover Plan, while using different language, removed the right to exercise
    the stock option on termination, and went on to provide, in the general
    conditions, that the employer could dismiss the employee
at
    any time
, free from any liability or any claim under the Plan or
    otherwise. While termination, without more, refers to lawful termination,
    the additional language of the general conditions was sufficient to expressly
    remove that presumption.

[49]

But for the additional language in all three plans, the words
    terminate or termination, would have been ambiguous. They could refer to
    the date notice was given or to the end of the reasonable notice period. In
    light of that ambiguity, they would have been interpreted as requiring the
    latter, namely, termination according to law at the end of the reasonable
    notice period. However, the ambiguity was removed by the additional language and,
    with it, so was the employees common law right.

[50]

Mr. Kieran was thus bound by the plain language of the plans, his
    right to exercise the options was not extended by the period of reasonable
    notice, and he was not entitled to damages for the loss of the options.

[51]

The appellant contends that the language of the Rollover Plan in
Kieran
is substantially the same as the language of the plans in this case.
    Consequently, the respondents awards should be found to have ceased to vest on
    the effective date of his termination.

[52]

I would not give effect to that argument. While the language in all the
    plans at issue in this case extinguish the respondents right to exercise any
    unvested awards as of the date of termination or when employment
    terminates, they do not establish, in unambiguous terms, when the date of
    termination is or when employment terminates. In other words, they leave open
    the possibility that termination could have occurred at the end of the
    reasonable notice period. And, as expressed above, where such ambiguity exists,
    the language will be interpreted as mandating a lawful termination.

[53]

While the appellant is correct to note that the language of the IMAX plans
    and the Rollover Plan in
Kieran
are similar, he overlooks the fact
    that, in
Kieran
, additional language was used to remove any
    entitlement to damages. There was no such language in this case.

[54]

I would therefore reject the appellants argument that we are bound by
Kieran
.
    In light of this conclusion, the next step is to determine whether the motion
    judge correctly applied the governing principles and arrived at the correct conclusion.

D.

Application of the principles to this case

[55]

The motion judge identified and expressly applied the principles set out
    above, referring to, among others,
Veer
,
Taggart
, and
Paquette
.
    He found as a fact that the awards were an integral part of the respondents
    employment, that they would have vested had his employment not been wrongfully
    terminated, and that he would have exercised the awards, as he had done in the
    past. This was the first step in the
Taggart/Paquette
analysis.

[56]

In the application of the second step, the motion judge, referring to
Veer
,
    found that the reference to terminates for any reason in the plans could not
    be presumed to refer to termination without cause. Further, he found that the
    phrase cancelled immediately without consideration was not a clear, express
    provision that remove[d] the common law right of an employee, terminated
    without cause, to claim damages in respect of lost unvested RSUs: at para. 64.

[57]

The motion judge applied the correct legal principles and arrived at the
    correct conclusion. As I have explained in the discussion of
Kieran
, above,
    in the absence of unambiguous contractual language, as there was in
Kieran
,
    the awards continued to vest during the reasonable notice period. The
    respondent was entitled to damages for the loss of his entitlement to exercise
    his rights.

[58]

I would therefore dismiss the appeal.

V.

The Cross-Appeal

[59]

The thrust of the respondents cross-appeal is that, having accepted the
    plaintiffs evidence that he would have exercised the RSU and stock option
    grants at the earliest possible opportunity, the motion judge erred by
    concluding that he would have sold the shares five months after their vesting
    dates. This conclusion was based on an analysis of the plaintiffs actual sales
    activities during the reasonable notice period in respect of other RSUs and
    stock options. The motion judge did not characterize this analysis as being in
    conflict with his earlier finding, but simply a determination of the meaning of
    earliest possible opportunity.

[60]

The cross-appellant makes several submissions, including: (a) that the motion
    judge breached the rules of natural justice by permitting IMAX to re-argue an
    issue that had been previously decided; (b) that IMAX breached the requirement
    to put its best foot forward on a summary judgment motion; (c) that IMAX was
    guilty of litigation by instalment, by adducing fresh evidence on the damages
    issue; and (d) that the motion judges conclusion that he would have retained
    his shares in a falling market amounted to a palpable and overriding error.

[61]

I would not give effect to any of these submissions. I do not see this
    as a case of re-opening the trial, as occurred in
671122 Ontario Ltd. v.
    Sagaz Industries Canada Inc.
, 2001 SCC 59, [2001] S.C.R. 983. The motion
    judge had not come to any final conclusion on the quantum of damages and had
    expressly left that issue open. I would defer to the exercise of his discretion
    in adopting a process that was fair to both parties and that ensured that both
    parties had an opportunity to make full submissions on the issues. The cross-appellant
    made no objection to the so-called fresh evidence and indeed referred to that
    evidence in his submissions on damages, urging a different interpretation on
    the motion judge.

[62]

Nor did the motion judge make a palpable and overriding error in his
    assessment of the evidence concerning damages. He rejected IMAXs approach to
    the calculation of damages  the use of the average number of months the
    cross-appellant had taken to sell vested incentives prior to the termination of
    his employment (13.7 months)  which he found was an overstatement. Instead, he
    looked at the evidence concerning the cross-appellants actual sales during the
    reasonable notice period. This was an appropriate approach to take. As for the cross-appellants
    argument that he would have sold immediately in a falling market, he admitted,
    as he had to, that he had no way of knowing whether the price would go up or
    down.

VI.

Disposition

[63]

For these reasons, I would dismiss both the appeal and the cross appeal.

[64]

There were no submissions as to costs. If the parties are unable to
    agree on costs, they may address costs by written submissions, to be filed
    within 21 days of the release of these reasons.

Released: GS  DEC 17 2019

George R. Strathy C.J.O.

I agree. Doherty J.A.

I agree. Robert J. Sharpe J.A.

[1]
That this area remains fertile ground for litigation is demonstrated by the
    fact that in the past year there have been four decisions of this court on the
    same subject:
Dawe v. The Equitable Life
    Insurance Company of Canada
, 2019 ONCA 512, 435 D.L.R. (4th) 573 (bonus
    plans);
Mikelsteins v. Morrison Hershfield
    Limited
, 2019 ONCA 515, 56 C.C.E.L. (4th) 1, leave to appeal requested, 38806
    (shareholders agreement and share bonus);
Manastersky v. Royal Bank of Canada
, 2019
    ONCA 609, 146 O.R. (3d) 647, leave to appeal requested, 38788 (incentive plan);
    and
Andros v. Colliers Macaulay Nicolls
    Inc.
, 2019 ONCA 679, 437 D.L.R. (4th) 546 (bonus).

[2]
The emphasized language has been referred to as a rule of contractual
    interpretation in the context of a stock option agreement. The rule holds that,
    in the absence of unambiguous terms to the contrary, the terms of a contract
    should be presumed to refer to lawful termination rather than unlawful
    termination: Finlayson J.A., dissenting, in
Gryba
, at para. 22.

[3]
In dissent, Finlayson J.A., referring to the similar language in
Brock
, found that the effective date of
    termination was the date on which Mr. Gryba was dismissed without cause. He
    would have denied the employee any damages for losses after the 30 day period
    following his dismissal: at para. 24.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Nugent, 2019 ONCA 999

DATE: 20191218

DOCKET: C66275

Huscroft, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario
    (Ministry of Labour)

Appellant

and

Andrew Nugent, Richard Guillemette and Tyler
    Buckingham

Respondents

Daniel Kleiman and Indira Stewart, for the appellant

Ian R. Smith and Andrew Guaglio, for the respondent
    Andrew Nugent

Jeremy Warning, for the respondent Richard Guillemette

Richard Stephenson, for the respondent Tyler Buckingham

Heard: September 25, 2019

On appeal from the order of Justice Robin Y. Tremblay of
    the Superior Court of Justice, dated June 8, 2018, dismissing an appeal from
    the stay entered on November 23, 2017, by Justice Joseph G. R. Maille of the
    Ontario Court of Justice.

Huscroft J.A.:

OVERVIEW

[1]

On June 3, 2015, Denis Millette died while working at the Detour Lake
    Mine, an open-pit gold mine operating near Cochrane, Ontario. He was an
    experienced millwright, but had been employed at the mine only briefly when he
    was instructed to replace a leaking expansion joint on a reactor that used
    cyanide. He died of acute cyanide intoxication caused by skin absorption.

[2]

After a lengthy investigation by the Ontario Provincial Police and the
    Ontario Ministry of Labour, charges were laid under both the
Criminal Code
, R.S.C. 1985, c. C-46, and
the
Occupational
    Health and Safety Act
, R.S.O. 1990, c.
    O.1
(
OHSA
).

[3]

Detour Gold Corporation (DGC), the corporation that owned and operated
    the gold mine, was charged with criminal negligence causing death contrary to
    the
Criminal Code
, along with various offences under the
OHSA
.
    DGC pleaded guilty to one of the criminal charges and was sentenced. The
OHSA
charges against DGC were withdrawn.

[4]

Michale Okros, an Inline Leach Reactor operator, and the respondent
    Andrew Nugent, who was the Acting Process Plant Manager, were also charged with
    criminal negligence causing death contrary to the
Criminal Code
. Those
    charges were withdrawn after DGC pleaded guilty.

[5]

Mr. Nugent and co-respondents Tyler Buckingham, who was a Process Plant
    Superintendent, and Richard Guillemette, who was Health and Safety and Asset
    Protection Manager, were charged with various offences under the
OHSA
on
    May 26, 2016. Their trial was not scheduled to begin until January 29, 2018
    about three months beyond the 18-month presumptive ceiling established in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. The respondents brought an
    application seeking to have the charges against them stayed under s. 11(b) of
    the
Canadian Charter of Rights and Freedoms
.

[6]

The application judge found that the net delay in this case was 23
    months. This figure included the 21 months from the swearing of the information
    until the anticipated last day for evidence and submissions at trial, and an additional
    two months the application judge estimated would be required for the decision
    to be written (judicial reserve time). Although the application judge found
    that this was a particularly complex case, he found that the Crown had failed
    to develop and follow an adequate plan to minimize delay resulting from the
    complexity. As a result, he concluded that s. 11(b) was breached and stayed the
OHSA
charges against all of the respondents. The application judges
    decision was upheld by the appeal judge.

[7]

The appellant argues that the application judge erred by including the
    time a decision is under reserve in calculating delay, and misinterpreted the
    requirement that the Crown develop and follow a concrete plan to minimize
    delay. I conclude that, regardless of whether time for judicial deliberation is
    properly included in calculating net delay, the application judge
    misinterpreted the particularly complex case exception established in
Jordan
,
and the appeal judge failed to recognize

and remedy this error. Properly
    interpreted, the particularly complex case exception

justifies the delay
    in this case.

[8]

I would allow the appeal and order that the charges proceed to trial.

BACKGROUND

Procedural history

[9]

This case is unusual in that it involves concurrent charges under the
Criminal
    Code

and the
OHSA
.
    The death of Mr. Millette was investigated by both the Ontario Provincial
    Police and the Ontario Ministry of Labour. Criminal charges came first, on
    April 15, 2016 and May 3, 2016, against DGC, Mr. Okros, and the respondent Mr. Nugent.
    Charges under the
OHSA
were sworn on May 26, 2016. The
OHSA

information alleged 15 counts against DGC and two counts against each of the
    respondents.

[10]

Following a number of pre-trials, DGC agreed to plead guilty to one
    count of criminal negligence causing death. It was fined $1.4 million and
    ordered to pay a victim fine surcharge of $420,000 and restitution of $805,333
    to Mr. Millettes widow. The criminal charges against Mr. Okros and the
    respondent Mr. Nugent were withdrawn. It was further agreed that the 15
OHSA
charges against DGC would be withdrawn. However, no resolution was reached
    concerning the
OHSA
charges against the respondents, and as a result a
    trial was necessary.

The application judges decision

[11]

The application judge noted that the information was sworn on May 26,
    2016, and the evidence and submissions were scheduled to conclude on February
    23, 2018. He concluded that the time the decision would be under reserve must
    be included in calculating total delay, following the decision in
R. v.
    J.M.
, 2017 ONCJ 4, 344 C.C.C. (3d) 217, and estimated that two months
    would be required for this purpose. This resulted in a total delay that he
    rounded-off at 23 months. The Crown did not allege any defence delay. As a
    result, the net delay was 23 months  some five months over the presumptive
    ceiling of 18 months for trials in the provincial court.

[12]

The application judge considered whether the Crown could establish
    exceptional circumstances. He found that the Crown had succeeded in
    establishing that this was a particularly complex case and went on to consider
    whether the Crown had developed and followed a concrete plan to minimize delay,
    in accordance with the requirements of
Jordan
. He found that each step
    taken by the Crown, including the Crowns participation in extensive joint
    judicial pre-trials, was appropriate. However, he concluded that the steps
    taken by the Crown to advance the prosecution were, as a whole, inadequate.

[13]

Specifically, the application judge found that the Crown did not take
    reasonable steps to bring the case to trial under the presumptive ceiling in
    the event that it did not resolve. In his view, it was unreasonable for the
    Crown not to seek a trial date until June 9, 2017  about 5.5 months before the
    presumptive ceiling  because this left only a 2.5-month window in which to complete
    this lengthy trial before the ceiling was reached. This narrow window made
    completion of the trial under the ceiling highly unlikely, if not next to
    impossible.

[14]

As it happened, on June 9, 2017 when the Crown sought a trial date, the
    earliest date available was January 8, 2018. January 29, 2018 was ultimately selected
    in order to accommodate the requirements of counsel. The application judge
    found that the Crown ought to have anticipated such a time frame in setting a
    trial date in this matter.

[15]

The application judge also criticized the Crowns trial management of
    this case, focusing on the Crowns failure to reply to the May 25, 2017 email
    message from counsel for the respondent Mr. Buckingham in a timely way. The
    Crown did not reply until June 8, 2017, just prior to commencement of a
    scheduled judicial pretrial, and its reply was incomplete, as it included only
    a very preliminary witness list and did not respond to the various trial
    management issues raised by counsel in the email. The application judge found
    that the Crown made no effort prior to the June 9, 2017 pretrial to narrow the
    issues or shorten the trial, to attempt to negotiate an agreed statement of
    facts, or to seek agreement regarding documents.

The appeal judges decision

[16]

The appeal judge first considered whether the application judge erred in
    his evaluation of the Crowns efforts to minimize delay caused by the
    complexity of the case. He noted that the Supreme Court did not articulate a
    standard by which to evaluate whether the Crown had developed and followed a
    concrete plan to minimize the delay occasioned by a complex prosecution.
    However, he accepted that the Crown must act reasonably and that the court
    should not retroactively micromanage the Crowns case.

[17]

The appeal judge found that the application judge did not err in his
    interpretation of the principles applicable to determining whether the Crown had
    developed and followed a concrete plan to minimize delay, and properly took a
    global perspective in evaluating the steps taken by the Crown on the
    reasonableness standard. The two critical findings of the application judge
    were: (i) that the Crown did not secure a trial date in a timely fashion; and (ii)
    that the Crowns case management was problematic because it did not take steps
    to streamline the evidence to be introduced at trial. The appeal judge
    concluded that these findings were amply supported by the evidentiary record
    and were entitled to great deference.

[18]

The appeal judge next considered whether these factual findings allowed
    the application judge to conclude that the Crown had failed to take reasonable
    steps to bring the case to trial under the presumptive ceiling. The appeal
    judge found that the application judges view on securing a trial date in this
    case was entitled to substantial deference and that it was open to him to
    conclude that the Crowns failure to secure a trial date in a timely manner was
    unreasonable. The respondents acquiescence did not undermine this conclusion,
    because the obligation to develop and follow a concrete plan to minimize delay
    rested solely on the Crown. The appeal judge added that the Crowns
    problematic case management was properly considered by the application judge,
    who made no palpable and overriding errors in the course of his assessment.

[19]

As a result, the appeal judge concluded that there was no basis to
    interfere with the application judges conclusion that the Crown had failed to
    establish exceptional circumstances outside of its control, and there was no
    need to determine whether the net delay included a further two-month period
    anticipated for judicial deliberation.

DISCUSSION

[20]

On the same day that this case was argued, the Supreme Court of Canada
    heard argument in
R. v. K.G.K.
, 2019 MBCA 9, [2019] 5 W.W.R. 492, a
    case that squarely raises the first issue raised by the appellant  whether the
    time a decision is under reserve is included in calculating net delay. The Supreme
    Court reserved its decision, and it continues to be under reserve at this time.

[21]

I need not address this issue in order to resolve this appeal. As I will
    explain, even if the two-month period in which the decision was expected to be
    under reserve properly counted in calculating net delay, the resulting delay of
    five months is justified in the circumstances of this particularly complex case,
    and as a result s. 11(b) is not breached. Accordingly, I will say no more about
    this issue and will proceed to consider the Crowns duty to develop and follow
    a concrete plan to minimize delay in a particularly complex case.

The standard of review

[22]

This is a second appeal of a provincial offences matter. As such, only
    questions of law are subject to review:
Provincial Offences Act
,
    R.S.O. 1990, c. P.33, s. 131(1). The decision under appeal is that of the
    appeal judge, not the application judge, but as I will explain it is necessary
    to consider whether the application judge misinterpreted the law before
    considering whether the appeal judge erred in upholding the application judges
    decision.

[23]

The Crown submits that whether there has been unreasonable delay is a
    question of law to which the correctness standard applies, citing this courts
    decision in
R. v. Jurkus
, 2018
    ONCA 489, 363 C.C.C. (3d) 246, leave to appeal refused, [2018] S.C.C.A. No.
    325,

at para. 25:

I do not agree that the designation of a period of time as
    defense delay is a finding of fact that is owed deference. Although underlying
    findings of fact are reviewed on a standard of palpable and overriding error,
    the characterization of those periods of delay and the ultimate decision as to
    whether there has been unreasonable delay are subject to review on a standard
    of correctness[.] [Citations omitted.]

[24]

The respondents submission on the standard of review relates to the question
    whether the Crown adequately prepared and implemented a litigation plan to minimize
    delay in a particularly complex case. This, the respondents say, is a factual
    finding that is not reviewable by this court on a second appeal. The respondents
    cite this courts recent decision in

R. v. Majeed
, 2019 ONCA 422,

as well as the
    decision of the Alberta Court of Appeal in
R. v. Regan
, 2018 ABCA 55, 359 C.C.C. (3d) 53, leave to appeal
    refused, [2018] S.C.C.A. No. 102, in support of this point
. In
Majeed
this court stated: In our view, whether the Crown acted quickly and
    effectively enough was the kind of factual determination that lies at the heart
    of the trial judges fact-finding role (para. 11).

[25]

In this case, there is no doubt that the presumptive ceiling has been
    exceeded. The respondents agree that this was a particularly complex case, so
    the question is whether the particularly complex case exception operates to
    justify the delay.

[26]

In order to take advantage of the particularly complex case exception,
Jordan
requires the Crown to develop and follow a concrete plan to minimize the delay
    occasioned by the complexity. As the Supreme Court explained: Where it has
    failed to do so, the Crown will not be able to show exceptional circumstances,
    because it will not be able to show that the circumstances were outside its
    control (para. 79).

[27]

Whether the Crown has developed and followed a concrete plan to minimize
    delay is not a question of characterization to which the correctness standard
    applies. The particularly complex case exception does not depend on the characterization
    or calculation of delay. If the particularly complex case exception is found to
    apply in a particular case, and the further finding is made that the Crown
    developed and followed a concrete plan to minimize delay, no ultimate question
    arises as to whether s. 11(b) has been breached; the delay is justified and s.
    11(b) has not been breached.

[28]

As this court stated in
Majeed
, the application of the
    particularly complex case exception is factual in nature and the application
    judges decision is entitled to deference. But deference to a decision applying
    the particularly complex case exception is premised on the requirement that the
    exception be interpreted correctly as a matter of law. As I will explain, the application
    judge erred in interpreting the particularly complex case exception, and in
    doing so failed to give effect to the purpose of this exception. The appeal judge
    erred in failing to recognize and correct that error.

The application judge misinterpreted the particularly complex case
    exception

[29]

The Supreme Court made clear in
Jordan
that although delay
    beyond the ceilings it established is presumptively unreasonable, the Crown may
    rebut the presumption of unreasonableness by establishing exceptional circumstances.
    In general, exceptional circumstances fall into two categories: discrete events
    and particularly complex cases. These categories operate in fundamentally
    different ways, and must be kept analytically distinct.

[30]

The discrete event exception operates within the context of the
    presumptive ceiling and the calculation of delay. If the Crown establishes a
    discrete event (such as an illness or unexpected event at trial), the
    delay that is reasonably attributable to that event is subtracted from the
    total delay that has occurred. The net delay figure is then assessed against
    the presumptive ceiling. In other words, the presumptive ceiling remains the
    reference point for the analysis.

[31]

In contrast, the particularly complex case exception operates outside
    the context of the presumptive ceiling, and without regard to it as a reference
    point. The focus of the particularly complex case exception is on whether the
    delay that exceeds the presumptive ceiling is justified in light of the overall
    complexity of a case. The trial judge must consider whether the Crown developed
    and followed a concrete plan
to minimize
    the delay occasioned by the complexity
 not whether the Crown
    developed and followed a concrete plan
to attempt
    to bring the trial to a conclusion within the presumptive ceiling
.
    As the court stated in
Jordan
: Where the trial judge finds that the
    case was particularly complex such that the time the case has taken is
    justified, the delay is reasonable and no stay will issue. No further analysis
    is required (para. 80).

[32]

In summary, the particularly complex case exception operates to justify delay
    beyond the presumptive ceiling. The exception must be interpreted in a manner
    that gives effect to this purpose.

[33]

As the court explained in
Jordan
, particularly complex cases
    are cases that require an inordinate amount of trial or preparation time such
    that the delay is justified (para. 77). This may be because of the nature of
    the evidence or the nature of the issues in a particular case, or both.

[34]

The application judges finding this was a particularly complex case is
    not contested. Nor could it be; as the application judge found, this case bears
    all of the hallmarks of complexity the Supreme Court identified in
Jordan
,
    because of both the nature of the evidence and the nature of the issues:

-

A detailed investigation, with a summary exceeding 100 pages;

-

Voluminous disclosure (6 binders and over 2500 pages);

-

A large number of witnesses (estimated at 32);

-

Requirements for expert evidence (engineering, toxicology, and pathology);

-

A large number of charges (21 charges against 4 accused, reduced to 6 charges
    against 3 accused);

-

The involvement of several different defence counsel (four reduced to
    three);

-

The requirement for a lengthy trial (estimated at four weeks) in the
    Ontario Court of Justice in a single-judge northeastern Ontario jurisdiction covering
    a vast geographic area with multiple court locations; and

-

Several judicial pre-trial conferences (five, with a sixth scheduled
    closer to the trial date).

[35]

What is at issue is whether the Crown followed a concrete plan to
    minimize delay. The application judge and the appeal judge recognized that the
    Crowns plan must be reasonable, assessed on a global basis. The reasonableness
    of a plan to address a particularly complex case is not to be assessed by
    reference to how close it brought  or could have brought  a case to the
    presumptive ceiling. It is assessed having regard to nature of the evidence and
    the issues in the case.

[36]

The application judge identified two key concerns. He concluded that it
    was unreasonable for the Crown not to seek a trial date in a timely way, and
    that the Crowns case management was problematic because it did not take steps
    to streamline the evidence to be introduced at trial. The appeal judge
    described these as two critical factual findings that were entitled to great
    deference. I will address each of these points separately.

(1)

Delay in setting trial dates

[37]

The appeal judge erred in deferring to the application judges decision
    that the Crown failed to secure a trial date in a timely fashion. This
    conclusion was based on a clear legal error: the application judge used the
    presumptive ceiling as the benchmark against which to judge the timeliness of
    the Crowns actions.

[38]

The error is apparent in this passage of the application judges reasons:

[I]t was unreasonable for the Crown not to seek a trial date
    until about 5½ months before the presumptive ceiling was reached, leaving about
    a 2½ month window, including the summer months, in which to start this lengthy
    trial.
By doing so, the Crown made completion of this trial under the presumptive
    ceiling highly unlikely, if not next to impossible
.
[Emphasis added.]

[39]

Given that the very purpose of the particularly complex case exception
    is to justify delay for cases that require time beyond the presumptive ceiling,
    the availability of the exception cannot be conditioned on attempts to meet
    that ceiling. Put another way, a plan to minimize the delay caused by a
    particularly complex case is neither undermined nor rendered inadequate because
    it does not aim to conclude a case within the presumptive ceiling.

(2)

The Crowns trial management of the case

[40]

The appeal judge also erred in deferring to the application judges
    decision that the Crowns case management was problematic. This decision was
    also based on a legal error.

[41]

The application judge found that many of the most significant steps
    taken by the Crown during the course of the proceedings were reasonable,
    appropriate, and in the interests of justice. These included:

-

The decision to proceed against multiple accused rather than sever the
    proceedings;

-

The decision to initially link the
OHSA
prosecution to the
    parallel criminal prosecution through the judicial pre-trial process;

-

The decision to participate in the extensive combined judicial pre-trial
    process, which resulted in all criminal charges being resolved without a trial
    and the withdrawal of all 15
OHSA
charges against DGC;

-

The prompt delivery of voluminous disclosure;

-

The replacement of the prosecuting Crown when he became incapacitated;

-

The early joining of the two sets of charges, so as to streamline the
    process; and

-

The acceptance of any and all dates offered by the court.

[42]

Despite these findings, the application judge went on to conclude that,
    on the whole, the steps taken were inadequate.

[43]

The appeal judge erred in concluding that the application judge
    evaluated the steps taken by the Crown on the reasonableness standard. In fact,
    the application judge did not apply the deferential reasonableness standard
    that was required. Instead, he parsed various steps taken by the Crown and in
    effect micromanaged the Crowns case management. He applied an overly stringent
    standard, and in doing so he erred in law.

[44]

Both the application judge and the appeal judge failed to heed the Supreme
    Courts instruction in
Jordan
that the Crown is not required to show
    that the steps it took were ultimately successful  rather, just that it took
    reasonable steps in an attempt to avoid the delay (para. 70). This point was
    reiterated by this court in
R. v. Saikaley
, 2017 ONCA 374, 348 C.C.C. (3d) 290, leave to appeal refused, [2017]
    S.C.C.A. No. 284, at para. 47
:

[W]e do not read
Jordan
as requiring the Crown to take
    any and all steps proposed by the defense to expedite matters.  So long as the
    Crown acts reasonably and consistently with its duties, it would be
    unconscionable to deny it the benefit of the complex case exception[.]

[45]

In short, the Crown is to be held to a standard of reasonableness, not
    perfection.

Applying the correct standards

[46]

The test that must be applied is this: did the Crowns plan for dealing
    with this particularly complex case,
considered as a whole
, reasonably
    attempt to minimize delay occasioned by such complexity?

[47]

The Crowns so-called failure to secure a trial date in a timely fashion
    does not disentitle the Crown from relying on the particularly complex case
    exception, even assuming that it did not advance the Crowns plan for minimizing
    delay. I see no failure on the part of the Crown in any event. The Crown should
    not be encouraged or required to set trial dates that may well prove to be unnecessary
    or unrealistic (depending on the result of the judicial pre-trial process),
    lest it contribute to additional systemic delay  undermining rather than
    reinforcing the purpose of
Jordan
. It should also not be encouraged or
    required to set trial dates where the issues in contest are not yet settled.
    One of the core purposes of the judicial pre-trial process is to determine what
    evidence is necessary, and what evidence may be rendered unnecessary by the
    agreement of counsel. This had yet to occur in this case.

[48]

Similarly, although there may have been additional steps that the Crown
    could have taken  in particular, the steps suggested by the defence in its May
    25, 2017 email message, to which the Crown did not reply in a timely manner
    there was no obligation on the Crown to take the particular steps suggested by
    the defence, and its failure to take those steps does not undermine the reasonableness
    of the Crowns handling of this case, judged as a whole. This is a paradigm
    example of a particularly complex case, for all of the reasons outlined above
    the very sort of case for which the exception was created. And, considered on
    the whole, the Crown acted reasonably in attempting to minimize delay occasioned
    by its complexity.

[49]

At the end of the day, the application judge erred in law by using the
    presumptive ceiling as a reference point and applying an overly stringent
    standard in assessing the Crowns plan to minimize delay. The appeal judge
    erred in failing to recognize and remedy this legal error.

[50]

The question at the heart of this case is this: all things considered, was
    the delay in completing this particularly complex case reasonable? In my view, applying
    the proper legal standard, it clearly was.

CONCLUSION

[51]

I would allow the appeal and order the matter to trial.

Released: December 18, 2019 (G.H.)

Grant Huscroft J.A.

I agree. David M. Paciocco
    J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario College of Teachers v. Bouragba, 2019 ONCA
    1028

DATE: 20191231

DOCKET: C66080

Lauwers, Fairburn and Zarnett JJ.A.

BETWEEN

The
    Ontario College of Teachers

Plaintiff (Responding Party/Respondent)

and

Ahmed Bouragba

Defendant (Moving Party/Appellant)

Ahmed Bouragba, acting in person

Christine Lonsdale and Charlotte-Anne Malischewski, for
    the respondent

Heard: September 27, 2019

On
    appeal from the order of Justice Andra Pollak of the Superior Court of Justice,
    dated September 26, 2018, and from the costs decision, with reasons reported at
    2018 ONSC 6481.

Lauwers
    J.A.:

I.

Overview

[1]

Mr. Bouragba brought a motion to dismiss the defamation lawsuit
    brought against him by the Ontario College of Teachers, under s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43
.
    This is a relatively new provision designed to permit judicial scrutiny of
    lawsuits allegedly brought to silence or financially punish critics who have
    spoken out on matters of public interest, known as Strategic Lawsuits Against
    Public Participation, or SLAPP. The seminal case on s. 137.1 is
1704604
    Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R.
    (3d) 161, leave to appeal granted and appeal heard and reserved November 12,
    2019, [2018] S.C.C.A. No. 467. As Doherty J.A. observed in
Pointes
, at
    para. 3:
Defamation lawsuits, perhaps because of the relatively
    light burden the case law places on the plaintiff, have proved to be an ideal
    vehicle for SLAPPs. Section 137.1 is a carefully designed approach to
    discerning whether a lawsuit is improper as a SLAPP or is validly brought.

[2]

The motion judge denied Mr. Bouragbas motion to dismiss
    the Colleges defamation action on the ground that it was a SLAPP, finding that
    he had not discharged his burden of proving that the defamation proceeding
    arose from an expression that relates to a matter of public interest. Mr.
    Bouragba appeals.

[3]

The College is the self-governing regulatory body
    for teachers in Ontario. Mr. Bouragba is a member of the College and was a
    member of the Colleges Council from July 1, 2012 to October 2, 2014, when he
    resigned.

[4]

Mr. Bouragba sent several communications to past
    and present members of the Council, the Attorney General of Ontario, and the
    Minister of Education. In some of the communications he advocated for a public
    inquiry into a wide range of alleged misconduct on the part of the College and
    people affiliated with it.

[5]

The College sued, alleging that the communications
    were defamatory, because they allege that the College, its Council and its
    leadership: are dishonest in the performance of their mandate; fabricate
    complaints; collude with their independent legal counsel and school boards;
    take action against members of the profession and Council for improper reasons;
    assemble biased panels; harass and discriminate against children, parents and
    elected Council members; and perform their duties in bad faith.

[6]

There is a history between the appellant and the
    College that forms part of the context. First, the College processed a complaint
    about the appellant made by
Diane Lamoureux, then the Principal of an
    Ottawa area school attended by Mr.  Bouragbas son. The Investigation
    Committee declined to refer the complaint to the Discipline Committee but
    instead cautioned the appellant. Its decision was upheld by the Divisional
    Court: 2018 ONSC 6935.

[7]

Second, the appellant made a complaint against
    three College members.
The Investigation Committee declined to refer the
    complaint to the Discipline Committee, and its decision was upheld by the
    Divisional Court: 2018 ONSC 6940.

[8]

Third, the appellant filed a complaint with the Human Rights
    Tribunal of Ontario. All but one allegation has been dismissed: 2017 HRTO 523.
    The hearing on the single outstanding issue was to be heard in June 2019.

[9]

Fourth, the appellant sued the College and a number of parties including
    the Colleges Director of Corporate and Council Services, Richard Lewko,
    personally. The action has been stayed: 2016 ONSC 7798. The appellant has
    pursued motions to have the judge who ordered the stay recused for bias.

II.

The Appellants Position

[10]

The appellant expressed frustration in his
    factum and in his oral argument with the motion judges failure to engage with
    the arguments that he put forward. First, he argued that the College, as a
    public body, is not capable of initiating a defamation suit, relying on
Niagara
    Peninsula Conservation Authority v. Smith
,
    2017 ONSC 6973, at paras. 11, 54.

[11]

Second, the appellant
    noted that the motion judge failed entirely to mention any content or a
    subject of my three impugned communications  [and] also failed to mention my
    position as a defendant. He questioned whether the motion judge had even read
    the impugned communications. His position, as expressed in his factum before
    the motion judge was this:

It is beyond question that
    the expressions in question relate to a matter of public interest, to wit: the
    governance of the College, it is a body created by the government of Ontario.
    Its action or inaction in its sphere of responsibility does affect the public
    welfare (students safety and well being).

[12]

Third, the appellant
    pointed out that the motion judge adopted the plaintiffs speculation by
    copying it and pasting it directly into her decision with no adequate analysis.
    This led the appellant to suggest that the motion judge was not impartial.

III.

The Governing
    Principles Concerning SLAPP Litigation

[13]

This court addressed s. 137.1 of the
Courts
    of Justice Act
in a group of linked decisions, the heart of
    which is
1704604 Ontario Ltd. v. Pointes Protection Association
.

The associated decisions were
Fortress Real Developments
    Inc. v. Rabidoux
, 2018 ONCA 686, 426 D.L.R. (4th) 1;
Platnick v. Bent
,
    2018 ONCA 687, 426 D.L.R. (4th) 60,

leave
    to appeal granted and appeal heard and reserved November 12, 2019,  [2018]
    S.C.C.A. No. 466;
Veneruzzo v. Storey
, 2018 ONCA 688, 23 C.P.C. (8th)
    352;
Armstrong v. Corus Entertainment Inc.
, 2018 ONCA 689, 143 O.R. (3d)
    54; and
Able Translations Ltd. v. Express International Translations Inc.
,
    2018 ONCA 690, 428 D.L.R. (4th) 568
.

[14]

In
Pointes
,

Doherty J.A. noted that the scheme in s. 137.1 of the
Courts
    of Justice Act
has three features or
    steps. The first is that for the section to be engaged, the expression must
    relate to a matter of public interest under s. 137.1(3), which provides:

(3) [A] judge
    shall, subject to subsection 4, dismiss the proceeding against the person if
    the person satisfies the judge that the proceeding arises from an expression
    made by the person that relates to a matter of public interest.

[15]

The second feature is the merits-based hurdle. It
    is set out in s. 137.1(4)(a), which provides:

(4) A judge shall not
    dismiss a proceeding under subsection (3) if the responding party satisfies the
    judge that,

(a) there are grounds to
    believe that,

(i) the proceeding has substantial merit, and

(ii) the moving
    party has no valid defence in the proceeding; and

[16]

The third feature is the public interest hurdle. It
    is found in s. 137.1(4)(b), which provides:

(4) A judge shall not
    dismiss a proceeding under subsection (3) if the responding party satisfies the
    judge that,

(b) the
    harm likely to be or have been suffered by the responding party as a result of
    the moving partys expression is sufficiently serious that the public interest
    in permitting the proceeding to continue outweighs the public interest in
    protecting that expression.

[17]

The first step in the required analysis is to
    identify the relevant public interest, if any. This requirement is intended
    to be based on a broad reading of the meaning of public interest so that
    public discourse on matters of public interest is not unduly discouraged:
Pointes
,
    at para. 57. Doherty J.A. did not identity an exhaustive list of topics that
    fall under the rubric of public interest but noted that
Grant v.
    Torstar Corp
., 2009 SCC 61, [2009] 3 S.C.R. 640 provided
    considerable assistance.

[18]

Of significance to this case, Doherty J.A. noted,
    at para. 47, that s. 137.1 does not fix on the plaintiffs purpose or motive
    in bringing the claim as the determining factor. Regarding the concept of public
    interest, he noted, at para. 65:

In summary, the concept of public interest as
    it is used in s. 137.1(3) is a broad one that does not take into account the
    merits or manner of the expression,
nor the motive
of the author. The
    determination of whether an expression relates to a matter of public interest
    must be made objectively, having regard to the context in which the expression
    was made and the entirety of the relevant communication. An expression may
    relate to more than one matter. If one of those matters is a matter of public
    interest, the defendant will have met its onus under s. 137.1(3).
    [Emphasis added.]

[19]

Doherty J.A. returned to the issue of motive at para.
    94, when he contrasted the assessment of the public interest in s. 137.1(3)
    with the public interest hurdle in s. 137.1(4)(b), which is the third step in
    the analysis. He said, at para. 94: Unlike the public interest inquiry in s.
    137.1(3), in which the quality of the expression or the motivation of the
    speaker are irrelevant , both play an important role in measuring the extent
    to which there is a public interest in protecting that expression.
He
    added, at para. 95:

In addition to the quality of the expression and
    the
defendants motivation for making the expression
, the consequences
    of the plaintiffs claim will figure into the weight to be given to the public
    interest in protecting that expression. Evidence of actual libel chill
    generated by the plaintiffs claim can be an important factor in the public
    interest evaluation required under s. 137.1(4)(b):
Able Translations Ltd.
,
    at para. 102. [Emphasis added.]

[20]

Doherty J.A. noted, at para. 96, in relation to the
    third or balancing step: Because the balancing of the competing public
    interests will often be determinative of the outcome of the
s. 137.1
motion, and because the analysis contains an element of subjectivity,
    it is crucial that motion judges provide full reasons for their s. 137.1(4)(b)
    evaluations.

IV.

The Motion Judges Reasons

[21]

The motion judges reasons were sparse, not full. She noted, at paras.
    23, 25:

The Colleges position is that Mr. Bouragbas communications
    are related to his personal grievances with the College. They were personal
    attacks on individuals within the College.

The College submits that although it has a public interest
    mandate, not all comments made about the College are matters of public
    interest. Mr. Bouragbas emails are solely related to:

(a)

his
    dissatisfaction with a decision of the Investigation Committee which cautioned
    him.

(b)

his
    dissatisfaction with three decisions of the Investigation Committee which
    declined to refer three of his complaints against members of the College
    involved in his sons education.

(c)

his
    personal belief that the College conspired with Paul Marshall to cause teachers
    and members of the Board to take steps to remove his son from school in Ottawa.

(d)

his
    personal belief that the College fabricates complaints in order to retaliate
    against him and other former members of the College council;

(e)

his personal belief that staff lied because they were mistaken about the
    date on which Paul Marshall first commenced providing legal services as
    independent legal counsel to panels.

[22]

The motion judge concluded, at para. 28:

Applying the test in
Grant v. Torstar Corp
., 2009 SCC 61 (S.C.C.), I find that Mr. Bouragbas private disputes
    with the College are not matters inviting public attention, affecting the
    welfare of citizens, or which are the subject of any controversy other than
    with Mr. Bouragba. I agree with the submissions of the College that the
    communications relate to private grievances. I find that Mr. Bouragba has not
    satisfied his burden under s.  137.1(3). It is therefore not necessary for
    the Court to consider the other criteria set out in s. 137.1 of the
CJA
.

[23]

The motion judges costs endorsement was very brief and did not describe
    the detailed submissions she considered. Nor did she refer to s. 137.1(8),
    which provides:

(8) If a judge does not
    dismiss a proceeding under this section, the responding party is not entitled
    to costs on the motion, unless the judge determines that such an award is
    appropriate in the circumstances.

V.

The principles applied

[24]

It is surely right, as the motion judge paraphrased the College saying:
    The College submits that although it has a public interest mandate, not all
    comments made about the College are matters of public interest. The difficulty
    is with her adoption of the Colleges argument that the appellants emails are
    solely related to his personal grievances with the College. They were not.

[25]

The Colleges statement of claim refers to three communications in
    particular. The first is an email to Michael Salvatori, Registrar of the
    College, copied to past and present members of the Council on June 4, 2015. The
    statement of claim does
not
quote the first sentence of the
    communication, which states: Please find attached some documents and a request
    for a public inquiry to investigate the Colleges conduct and faith.

[26]

In the email the appellant cited his own personal experience to explain
    his loss of confidence in the College. He went on to cite other situations in
    which the College misbehaved, in his opinion, which did not involve him.

[27]

The second communication was a letter sent by the appellant and a
    colleague to the Attorney General dated June 5, 2016. The letter states:

We address this letter to you as the new Attorney General of
    Ontario in a request to review the investigation and discipline processes and
    decisions at the Ontario College of Teachers.

Despite the Report and Recommendations of the Chief Justice
    Patrick Lasage [sic] in 2012, there continues to be lack of transparency and
    accountability in the manner the College investigates complaints.

[28]

The writers state:

A Public Inquiry is requested to explore the influence
    exercised by school boards over the investigation and discipline process and
    decisions made by the Investigation and Discipline Committees of the College
    over the last five years, as a systemic issue for which the College is not under
    any scrutiny, since it enjoys immunity from any oversight in Ontario.

[29]

This letter to the Attorney General must be set in context, since the
    appellant and his colleague (whom the College did not sue) sent a follow up
    letter on June 30, 2016, to which they attached a brief entitled: Reasons for
    a Public Inquiry into the Ontario College of Teachers. The brief was detailed and
    made a number of complaints. It called for a public inquiry to examine and
    investigate the following issues in protecting the Public Interest, and then
    listed: the manner in which public appointments to the Public Interest Committee
    of the College and to College Council are made; the preferential treatment of
    school board employer complaints over complaints by the public or members of
    the College; and conflict of interest and other concerns, because there is no
    whistleblower policy. The brief ended with a list of [l]egislative issues
    requiring review of the OCT Act, 1996 and its Bylaws.

[30]

The third communication was an email dated July 18, 2016 inviting
    council members to witness a discipline hearing. The email complained that the
    College falsified the teachers complain [sic] against his vice-principal and
    invited Council members to attend the hearing so that they could see how the
    hearing unfolded, in order to enhance transparency according to Colleges
    mission.

[31]

Although the motion judge adverted to the requirement to view the
    communications objectively, she did not properly apply the test. Viewed
    objectively, and divorced from any consideration of the merits or manner of
    expression and the motive of the speaker, the communications could not be
    reasonably said to relate solely to private grievances. The motion judges
    finding to this effect was a palpable and overriding error.

[32]

The finding also appears to have been impermissibly tainted
    by a consideration of the appellants motive. As noted at the outset, at the first
    threshold step of the analysis, in assessing whether the expression is a matter
    of public interest under s. 137.1(3) of the
Courts of Justice Act
, the
    court is not to consider the motivations of the allegedly defamatory speaker.
    Motivations do play a role in the third step relating to the public interest
    hurdle. However, in this case the motion judge appears to have taken the
    appellants motivations into account in concluding, at step one, that the
    appellant was expressing private grievances, so that the public interest
    element had not been satisfied.
The motion
    judge made the same error criticized by this court in
Levant v.
    Day
, 2019 ONCA 244,
145
    O.R. (3d) 442,
at paras. 11-12.

[33]

Moreover, the test is meant to set a low bar, as Doherty
    J.A. noted in
Pointes
, at para. 65:

An expression may relate to more than one matter.
    Even so, he added:
If one of those
    matters is a matter of public interest, the defendant will have met its onus
    under s. 137.1(3).
In my view, the motion judge misapprehended the
    test under s. 137.1 as explicated in
Pointes
.
The appellants communications are mixed, but many
    elements manifestly engage the public interest. Whether those elements are
    sufficient to attract the protection of s. 137.1 must be assessed further at
    the second step,
the merits-based hurdle, and at
    the third step, the public interest hurdle.

[34]

However, the motion judge stopped her analysis at the first
    step, concluding that Mr. Bouragba did not satisfy his burden to establish that the
    communications relate to a matter of public interest. The motion judge did not proceed
    to the second and third steps of the
Pointes
analysis.
I would be reluctant to carry forward the reasoning
    process required by s. 137.1 on appeal without full argument on the
    merits-based hurdle and the public interest hurdle, and in the absence of careful
    analysis by a motion judge.

[35]

The appellants criticisms of
    the adequacy of the motion judges reasons are understandable. Most
    importantly, the reasons glossed over the appellants arguments.

In
R. v. Walker
, [2008] 2
    S.C.R. 245,
2008 SCC 34,
Binnie J. stated, at para
    20: "Reasons are sufficient if they are responsive to the case's live issues
    and the parties' key arguments. He noted that: Their sufficiency should be
    measured not in the abstract, but as they respond to the substance of what was
    in issue."

[36]

As McLachlin C.J. stated in
R.
    v. R.E.M
., [2008] 3 S.C.R. 3 at para. 64
,
a trial judge is not obliged to discuss all of the
    evidence on any given point, provided the reasons show that he or she grappled
    with the substance of the live issues on the trial.
The purposes for good reasons were set out by
LHeureux-Dubé
    J.
in
Baker v. Canada (Minister of
    Citizenship and Immigration),
[1999] 2 S.C.R. 817, at para. 39:

Reasons foster better decision making by ensuring that issues
    and reasoning are well articulated and, therefore, more carefully thought out.
    The process of writing reasons for decision by itself may be a guarantee of a
    better decision.  Reasons also allow parties to see that the applicable
    issues have been carefully considered, and are invaluable if a decision is to
    be appealed, questioned, or considered on judicial review: Those affected may
    be more likely to feel they were treated fairly and appropriately if reasons
    are given (internal citations omitted).

See generally
R.
    v. Sheppard
,
2002 SCC 26,
[2002] 1 S.C.R. 869, per Binnie J., at para. 55; and
Vancouver
    International Airport Authority v. Public Service Alliance of Canada
, 2010 F.C.A. 158,
[2011] 4 F.C.R. 425,
per Stratas J.A., at para. 16. See also
Clifford
    v. Ontario Municipal Employees Retirement System
, 2009 ONCA 670;
98 O.R. (3d) 210
.

[37]

Although the motion
    judges reasons inadequately addressed the appellants arguments, there is no
    basis for the appellants suggestion that the motion judge showed bias. An
    allegation of bias is serious and is not to be made lightly. As Robertson J.A.
    observed in
Murray v. New Brunswick Police Commission
, 389
    N.B.R. (2d) 372, at para. 10, unfortunately, self-represented litigants sometimes
    operate, like Mr. Bouragba,

on the mistaken assumption that if he or she is
    unsuccessful on any ruling it is because of bias on the part of the
    decision-maker. This was an unwarranted allegation.

VI.

Disposition

[38]

I would allow the appeal, set aside the judgment and the order for
    costs, and remit the appellants motion to the Superior Court to be heard by a
    different judge.

Released: P.L. December 31, 2019

P. Lauwers J.A.

I agree. Fairburn
    J.A.

I agree. B. Zarnett
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Posner v. Weir Foulds LLP, 2019
    ONCA 966

DATE: 20191205

DOCKET: C66833

Juriansz, Brown and Miller JJ.A.

BETWEEN

Gary
    Posner and Elaine Kay

Plaintiffs (Appellants)

and

Weir Foulds LLP, Clare E. Burns, Bianca V. La Neve,
Hull & Hull LLP,

Ian M. Hull, and Doreen Lok Yin So

Defendants (
Respondents
)

David Marcovitch, for the appellants

Michael R. Kestenberg, for the
    respondents

Heard and released orally: December 4, 2019

On
    appeal from the judgment of Justice Paul M. Perell of the Superior Court of
    Justice, dated March 18, 2019, with reasons reported at 2019 ONSC 1726.

REASONS FOR DECISION

[1]

The motion judge granted the respondents, Hull
    & Hull LLP, Ian M. Hull and Dorren Lok Yin So (the Hull Defendants),
    summary judgment dismissing the appellants action against them. The appellants,
    who are estate trustees of the Estate of James Kay, appeal.

[2]

In the Minutes of Settlement, the appellants, as
    estate trustees, agreed that the Estate would pay the Hull Defendants a
    specific sum in respect of their clients legal fees, and the appellants
    subsequently sought and obtained court approval of the Minutes of Settlement.
    As the motion judge observed, the appellants made no effort to set aside the
    consent settlement approval order because it was a very favorable order for
    them and there was no apparent basis for setting aside the Order on the
    grounds of fraud, the discovery of new evidence, or otherwise: at para. 74. In
    those circumstances, we are not persuaded that the motion judge erred in
    granting summary judgment to the Hull Defendants. In addition, we see no error
    in principle in the motion judges conclusion that summary judgment was the fair
    and efficient way of determining the action against the Hull Defendants.

[3]

The appeal is dismissed.

[4]

Based on the agreement of the parties, the Hull
    Defendants are entitled to their costs of the appeal fixed in the amount of
    $8,000.00, inclusive of disbursements and applicable taxes.

R.G.
    Juriansz J.A.

David
    Brown J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Public Guardian and Trustee v.
    Kennedy, 2019 ONCA 956

DATE: 20191205

DOCKET: FILE C66421

Lauwers, Paciocco and Fairburn
    JJ.A.

BETWEEN

Public Guardian and Trustee

Applicant (Respondent on Appeal)

and

Allan Kennedy and Dan Kennedy

Respondents (Appellant)

Daniel Joseph Kennedy, in person

Lynn Donnelly, for the Public Guardian
    and Trustee

Heard: November 29, 2019

On appeal from the judgment of Justice Lynda
    C. Templeton of the Superior Court of Justice, dated December 19, 2017.

REASONS FOR DECISION

[1]

The Public Guardian and Trustee (PGT) is the
    statutory guardian of an adult, Allan Kennedy (Allan). This guardianship
    enables the PGT to make decisions concerning Allans property. Daniel Kennedy
    (Daniel), the appellant, is Allans brother. He applied to the PGT to replace
    the PGT as Allans statutory guardian. The PGT refused, finding Daniel to be unsuitable
    to manage Allans property, and to lack a suitable management plan. Daniel
    disputed the PGTs refusal. Pursuant to the
Substitute Decisions Act
,
    1992
, S.O., 1992, c. 30, s. 18(2), the PGT was therefore required to apply
    to the court to have its decision approved. That application was brought, and
    the application judge granted an order approving the PGTs refusal. Daniel now
    appeals that decision.

[2]

Daniel raises numerous concerns, but his grounds
    of appeal can fairly be summarized as follows:

·

The application judge erred by failing to
    consider all the evidence; and

·

The application judge misapplied the applicable
    test.

[3]

Daniel also wishes to present fresh evidence on
    appeal and asks for the appointment of a criminal lawyer to investigate the
    surveillance he alleges against himself and his family.

[4]

We would not grant the appeal and would decline
    to accept the fresh evidence.

[5]

Not only did the application judge say
    explicitly that she considered all the evidence, the substance of her ruling demonstrates
    that she did so. The test she applied was also correct.

[6]

We have reviewed the matter thoroughly and have
    fully considered the broad oral and written submissions made by Daniel but can find
    no legal error, error in principle, or palpable or overriding errors of fact
    made by the application judge.

[7]

With respect to the fresh evidence, it must be
    rejected because it cannot meet the legal test in
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759. The fresh evidence raised by Daniel could not, along with
    the other evidence presented to the application judge, have affected the
    result.

[8]

We must also decline Daniels request for the
    appointment of a criminal lawyer. We have no authority to do so.

[9]

We therefore dismiss the appeal. We make no
    order with respect to costs.

P.
    Lauwers J.A.
David M. Paciocco J.A.

Fairburn
    J.A.