COURT OF APPEAL FOR ONTARIO

CITATION: Devi Financial Inc. v. Everwood
    Place Ltd., 2022 ONCA 104

DATE: 20220204

DOCKET: C69325

Tulloch, Pardu and Harvison
    Young JJ.A.

BETWEEN

Devi
    Financial Inc.

Moving Party (Respondent)

and

Everwood Place Ltd., Hyde Park
    Crossing Ltd. and Trevor Bond

Responding Parties (Appellants)

Rod R. Refcio and William T.J. Chapman,
    for the appellants

Daniel K. Reason, for the respondent

Heard: January 14, 2022, by video conference

On appeal
    from the judgment of Justice Spencer Nicholson of the Superior Court of Justice,
    dated March 16, 2021.

REASONS
    FOR DECISION

[1]

The appellant Trevor Bond appeals from the summary judgment granted in
    favour of the respondent Devi Financial
Inc. (Devi). The
    motion judge concluded that there was no genuine issue requiring a trial on the
    question of whether the appellant had personally guaranteed the mortgage debt
    lent by Devi.

[2]

The corporate appellants defaulted on a mortgage given by them which was
    ostensibly guaranteed personally by the appellant Trevor Bond.

[3]

The facts may be briefly stated. Everwood
Place Ltd.
    (Everwood)

and Hyde Park
Crossing
    Ltd. (Hyde Park)

are corporations that own two
    separate pieces of property in the City of London. Mr. Bond is the principal of
    both corporations and an experienced and successful businessman. The appellants
    Everwood and Hyde Park granted mortgages over the properties to secure
    financing in the amount of $2,650,000.

[4]

The financing at issue in these proceedings replaced prior financing. In
    September 2018, Devi offered mortgage financing in respect of the two pieces of
    property. Devi agreed to lend $2,650,000 at an interest rate of 11% per annum
    over a one-year term ending in July 2019. As security for the loan, the
    respondent was to receive a first charge/mortgage over each piece of property.

[5]

Devi required that Mr. Bond enter into a guarantee. In the course of the
    negotiations for the financing, he provided a financial disclosure statement to
    Devi which indicated that, as of the end of April 2018, he had a net worth of
    $16,415,000. Mr. Bond also executed a Guarantors Consent to Electronic
    Registration of Charge. The money was advanced, and the charge/mortgage was
    registered on September 17, 2018 for a one year term. The respondent was also
    granted a General Security Agreement, which was duly registered pursuant to the
Personal Property Security Act
, R.S.O. 1990,
    c. P.10 (PPSA).

[6]

The parties subsequently agreed to an extension of the mortgage so that
    it would mature on January 25, 2020. The interest rate was increased to 12% per
    annum, calculated and payable monthly in the amount of $26,500.00 from and
    after July 25, 2019.

[7]

The appellants fell into default of the loan very shortly after the
    parties reached the extension agreement. The respondent gave the appellants a
    number of opportunities to bring the loan into good standing but, while a few
    payments were ultimately made in the fall of 2019, no payments were made after
    November 4, 2019. As of November 25, 2019, the next payment was due.

[8]

The respondent delivered a demand letter dated November 28, 2019,
    containing a statement of amounts necessary to bring the mortgage into good
    standing as of December 10, 2019, along with a Notice of Intention of Enforce
    Security under the
Bankruptcy and Insolvency Act
, R.S.C., 1985, c. B-3,
dated
    November 28, 2019. A Notice of Sale under Charge/Mortgage was delivered to the
    appellants on December 11, 2019, giving them until January 22, 2020, to bring
    the mortgage into good standing.

The Issues

[9]

The appellants raise three arguments on appeal.  We would not give
    effect to any of them for the following reasons.

[10]

First,
    they submit that the motion judge erred in granting summary judgment without
    resorting to the fact finding powers set out in r. 20 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, in
    relation to Mr. Bonds position that he was signing the guarantee as agent for
    the corporations and not on his own behalf.

[11]

It
    is common ground that the motion judge articulated the correct test governing
    the availability of summary judgment:
Hryniak v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87.

[12]

The
    appellants argue, however, that he erred in applying the test because in
    finding that Mr. Bond signed as personal guarantor in the face of his evidence
    that he thought he was signing as agent for his corporations, the motion judge
    was making a credibility finding that was unavailable given that he failed to
    rely on any of the fact finding powers under r. 20.

[13]

We
    disagree. The documentation was clear that Mr. Bond was signing as a personal
    guarantor. The task facing the motion judge was the construction of the
    contractual documentation before him, including the loan agreements and the
    guarantee. Any objective interpretation of these documents gives rise to the
    conclusion that Mr. Bond signed as personal guarantor. There is no ambiguity
    that could give rise to the admissibility and relevance of Mr. Bonds personal
    understanding:
Arora v. Whirlpool Canada LP
,
    2013 ONCA 657, 118 O.R. (3d) 113, at para. 24.

[14]

This
    is a matter of straightforward contract interpretation between sophisticated
    and represented parties. The grounds which could give rise to the relevance of
    Mr. Bonds personal understanding of the documentation he signed, such as
non est factum
, misrepresentation, or unconscionability
    or unequal bargaining power were not pleaded. The motion judge correctly found
    that nothing in Mr. Bonds affidavit or cross-examination could have made out
    any such defence. In addition, as the motion judge observed, leave to amend was
    not sought.

[15]

In
    short, the motion judges conclusion that Mr. Bond was liable as a personal
    guarantor was driven by the law on contract interpretation and not by any
    credibility finding with respect to Mr. Bond.

[16]

The
    appellants also submit that the
motion judge erred in
    finding that the amount due to the respondent
was $3,214,264.15 inclusive
    of interest.

[17]

In
    particular, they argue that the motion judge erred in including a bonus of
    three months interest of $93,619.34 as a result of the fact that the 2018
    mortgage was not discharged but rather extended.

[18]

We
    see no error on the part of the motion judge. This too was a simple question of
    contractual interpretation. There was no ambiguity.

[19]

On
    reviewing the respective commitment letters given in 2018 and then in 2019, it is
    clear that the two bonuses were to be triggered by different circumstances.
    The 2019 commitment letter provided that the mortgage could be prepaid if the
    chargor/mortgagor paid three months interest to the chargee/mortgagee. That
    did not occur in this case and so that bonus did not apply. The motion judge
    continued, however, to explain that the 2018 bonus provision as set out in the
    original Schedule did apply:

[75] the bonus set out in the original Schedule is triggered
    (1) if the Charge\Mortgage is not discharged on its maturity, or (2) if it is
    not renewed or extended. The only sensible reading of these clausesin my
    opinion, is that in the event that the defendants did not pay out the loan on
    its maturity date, or agree to extend it to a new maturity date, the bonus
    would be activated. Reading these two provisions together, to avoid the bonus
    the defendants had to discharge the mortgage on its maturity date.

[76]    Thus, the bonus was not
    activated when the parties agreed to the extension in July of 2019. It was,
    however, triggered when the current extension ended and the mortgage was
    neither discharged, nor extended. In my opinion, the bonus is properly included
    in the amount owing to the plaintiff. That is what the parties agreed upon.

[20]

Finally,
    the appellants submit that the motion judge erred in rejecting their argument
    that the respondent failed to provide adequate notice and that the power of
    sale was therefore not available to it.

[21]

This
    submission also fails. The appellants had been in default of payment for more
    than 15 days when the Notice of Sale was sent to it on December 11, 2019. The
    Notice set out the amount outstanding and gave the chargor appellants until
    January 22, 2020, to pay the amounts set out. This was more than 35 days. The
    motion judge made no error in his interpretation of the standard clause, noting
    that it does not require 15 days notice but simply requires that, if the
    chargor is in default of making a payment for at least 15 days, 35 days notice
    can be given until the chargee will enter on and lease or sell the land.

Conclusion and Costs

[22]

For
    these reasons, the appeal is dismissed.

[23]

Given
    the terms of the contract, the respondent is entitled to its costs on a
    solicitor-client basis. Costs of the appeal are payable by the appellants to
    the respondent in the amount of $7,500 as claimed.

M.
    Tulloch J.A.

G.
    Pardu J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Burgess v. University Health Network, 2022 ONCA 105

DATE: 20220207

DOCKET: C69085

Huscroft, Sossin and Favreau JJ.A.

BETWEEN

Steven Burgess, Natasha
    Burgess,

Clara Burgess by her litigation
    guardian Steven Burgess,

and Ella Burgess, by her litigation guardian
    Steven Burgess

Plaintiffs/Moving Parties

(Appellants)

and

University Health
    Network, Altum Health, Dr. Linda Dvali,

Dr. Amer Al-Kudmani, and
    Jane Doe

Defendants/Responding Parties

(Respondents)

Martin P. Forget and Riley McIntyre, for the appellants

Daniel Girlando, for the respondent University Health
    Network

Andrew Kalamut and Emilie Bruneau, for the respondents
    Dr. Linda Dvali and Dr. Amer Al-Kudmani

Heard: January 31, 2022 by video conference

On appeal from the order of Justice Kevin B.
    Phillips

of the

Superior Court of Justice, dated January 7,
    2021.

REASONS FOR DECISION

[1]

This appeal is from the order of the motion judge dismissing
    the appellants motion to extend the timetable and dismissing the appellants
    action. For the following reasons, the appeal is dismissed.

BACKGROUND

[2]

The facts giving rise to the action are straightforward. Steven Burgess
    injured his arm in a cycling accident in 2011 while working as a by-law
    enforcement officer for the City of Ottawa. He received benefits under the
Workplace
    Safety and Insurance Act, 1997
, S.O. 1997, c. 16, Sched. A (the WSIA).

[3]

On June 17, 2014, on the eve of the expiry of the limitation period, this
    action was commenced by Statement of Claim. The appellants allege that the care
    he received at the respondent hospital, including surgery on his right arm,
    made the injury he sustained worse. The appellants also claimed against the
    respondent physicians who provided him with treatment. None of the respondents
    filed defences.

[4]

The WSIA subrogates any action of a plaintiff to his or her employer. In
    this case, the plaintiffs action was subrogated to the City of Ottawa (the
    City). Under s. 30 of the WSIA, the appellants were required to obtain the
    Citys consent prior to issuing their claim. It was in the Citys discretion
    whether to grant that consent.

[5]

The appellants accepted that the action could only be commenced or
    continued with the Citys consent. They first contacted the City to obtain its
    consent in 2015. Based on oral communications, appellants counsel (not the
    same counsel as counsel arguing the appeal) proceeded from that time forward on
    the basis that the Citys consent was forthcoming. The respondents, advised of
    the purported consent in 2015, requested that it be provided to them in
    writing. The City, however, did not provide the requested consent in writing.
    Negotiations proceeded between 2015 and 2017 on the terms of the agreement
    between the City and the appellants. No agreement was reached.

[6]

The negotiations ended in 2017, and no further steps were taken to
    obtain the Citys consent for over two years. In June 2019, just before the
    matter was to be administratively dismissed for delay, the appellants served
    their notice of motion for a status hearing to extend the set down date. While
    the original return date for the status hearing was September 2019, several
    adjournments followed and the status hearing did not occur until January 2021.

[7]

In November 2020, two months before the parties were scheduled to appear
    on the status hearing, the appellants finally obtained the Citys written consent.

[8]

At the status hearing, pursuant to r. 48.14 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg 194, the motion judge dismissed the motion to
    extend the set down date and dismissed the action for delay. He held that the
    appellants failed to provide an acceptable explanation for the delay in
    prosecuting their action, and that the appellants had failed to rebut the
    presumption of prejudice that would result if the action were permitted to
    proceed.

ANALYSIS

[9]

All parties agree that the motion judge is entitled to deference in his
    decision to dismiss the motion for an extension of time and to dismiss the
    action for delay. The dismissal order may only be set aside if the motion judge
    has made a palpable and overriding error of fact, or reached a decision based
    on an erroneous legal principle reviewable on a correctness standard:
1196158
    Ontario Inc. v. 6274013 Canada Ltd.
,
2012 ONCA 544
, 112
    O.R. (3d) 56, at para. 16.

[10]

Rule
    48.14 of the
Rules of Civil Procedure
states:

(1) Unless the court orders otherwise, the registrar
    shall dismiss an action for delay in either of the following circumstances,
    subject to subrules (4) to (8):

1. The action has not been set down for trial or
    terminated by any means by the later of the fifth anniversary of the
    commencement of the action and January 1, 2017.

(5) If the parties do not consent to a timetable
    under subrule (4), any party may, before the expiry of the applicable period
    referred to in subrule (1), bring a motion for a status hearing.

(6) For the purposes of subrule (5), the hearing of
    the motion shall be convened as a status hearing.

(7) At a status hearing, the plaintiff shall show
    cause why the action should not be dismissed for delay, and the court may,

(a) dismiss the action for delay; or

(b) if the court is satisfied that the action
    should proceed,

(i) set deadlines for the completion of the
    remaining steps necessary to have the action set down for trial or restored to
    a trial list, as the case may be, and order that it be set down for trial or
    restored to a trial list within a specified time,

(ii) adjourn the status hearing on such terms as
    are just,

(iii) if Rule 77 may apply to the action, assign
    the action for case management under that Rule, subject to the direction of the
    regional senior judge, or

(iv) make such other
    order as is just.

[11]

Rule
    48.14 requires that courts balance the objective of resolving disputes on their
    merits with the objective of resolving disputes in a timely and efficient
    manner in order to maintain public confidence in the administration of justice.
    The role of the judge presiding over a status hearing is to ensure that justice
    is served for all of the litigants:
1196158 Ontario Inc.
,

at
    para. 41.

[12]

On
    a motion under r. 48.14, the moving party must establish that (a) there was an acceptable
    explanation for the delay; and (b) if the action were allowed to proceed, the
    defendant(s) would suffer no non-compensable prejudice;
Faris v. Eftimovski
,
    2013 ONCA 360, at para. 11. In this case, the motion judge found that the
    appellants had not established either prong of the test.

[13]

The
    appellants assert that the motion judge misapprehended or overlooked certain
    evidence, resulting in palpable and overriding errors. Specifically, the
    appellants contend that the motion judge erred in finding: (a) that the delay
    was caused by the appellants; (b) that the respondents did not acquiesce to the
    delay; and (c) that the respondents would suffer non-compensable prejudice. As
    a result of these errors, the appellants argue the motion judges decision
    should be set aside and their action reinstated, with an extension of time to
    set the action down for trial.

[14]

The
    appellants rely on
Mihoren v. Quesnel
, 2021 ONCA 898, released after
    the motion judges decision. In
Mihoren
, at para. 36, this court held
    that, in the context of an appeal from an administrative dismissal of an action,
    a plaintiffs explanation for delay should be considered contextually. The
    appellants argue that although this case is not an administrative dismissal, the
    motion judge in this case should have considered the appellants explanation of
    their delay contextually.

[15]

The
    respondents argue that the evidence before the motion judge supports his finding
    that the appellants decision to pursue better financial terms in exchange for
    the Citys consent does not amount to an acceptable explanation for the
    inordinate delay over the five-year period after the claim was issued. Moreover,
    it was reasonable for the motion judge to find that the respondents never
    waived or acquiesced in respect of the delay.

[16]

We
    agree. In our view, nothing in this case turns on the way in which the
    appropriate test is described. The motion judge considered the record, including
    the relevant context, and concluded that the delay was both inordinate and not
    acceptably explained by the appellants. That finding is amply justified.

[17]

The
    respondents argue that, while the inordinate delay was in itself a sufficient
    basis to decide the motion, the motion judge reasonably found that the
    appellants had failed to rebut the presumption of prejudice caused by the
    unexplained delay. According to the respondents, it was open to the motion
    judge to determine that the memories of individuals, including the yet to be
    identified nurse defendant Jane Doe, would be compromised, and that the
    fairness of any trial would be jeopardized.

[18]

We
    agree. This is an unusual case, in that the action was never properly
    commenced. Moreover, by the time the matter got to the motion judge, virtually
    no steps had been taken. No statement of defence was filed  with the
    appellants consent  no affidavits of documents had been exchanged, and no
    examinations for discovery had taken place. This court has recognized that the
    passage of an inordinate length of time after a cause of action arises presumptively
    gives rise to trial fairness concerns. As Sharpe J.A. stated in
1196158
    Ontario Inc.
,

at para. 42: If flexibility is permitted to
    descend into toleration of laxness, fairness itself will be frustrated. As the
    status hearing judge recognized, even if there is no actual prejudice, allowing
    stale claims to proceed will often be unfair to the litigants. The problem is
    pronounced in this case, and the appellants have presented no persuasive
    argument to rebut this presumption.

[19]

In
    our view, there is no basis to disturb the motion judges decision. There was
    ample evidence in the record on which to base his conclusion on both prongs of
    the r. 48.14 test. We do not accept the argument that he committed palpable and
    overriding errors in doing so.

DISPOSITION

[20]

The
    appeal is dismissed, with costs to the respondents.

[21]

The
    parties have agreed on the quantum of costs. Pursuant to that agreement, the
    appellants shall pay $5,000 to the respondent physicians and $2,500 to the
    respondent hospital.

Grant Huscroft J.A.

L.
Sossin J.A.

L. Favreau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Calleja v. Ahmadi, 2022 ONCA 106

DATE: 20220202

DOCKET: C69220

Huscroft, Sossin and Favreau
    JJ.A.

BETWEEN

Anna Calleja

Plaintiff/Defendant by Counterclaim
    (Respondent)

and

Aliakbar Ahmadi

Defendant/Plaintiff
    by Counterclaim (Appellant)

Mitchell Wine
    and Jonathan Beiles, for the appellant

Varoujan Arman and Philip Yang, for the
    respondent

Heard: February 1, 2022 by
    video conference

On appeal from the order of Justice Audrey
    P. Ramsay of the Superior Court of Justice, dated March 3, 2021.

REASONS FOR DECISION

[1]

The appellant argues that the motion judge erred
    in finding that the respondent met her duty to mitigate following his breach of
    the contract of purchase and sale, and erred in granting summary judgment to
    the respondent as a result. The appellant also argues that the motion judges
    reasons are inadequate.

[2]

We reject these submissions.

[3]

First, as to the adequacy of the reasons,
reasons are not judged against a standard of perfection. They need
    not address every issue raised nor need they address all of the issues in
    detail. Reasons are judged functionally. They are to be read as a whole. They must
    explain the result so that the losing party knows why it lost, and they must
    permit meaningful appellate review.

[4]

We are satisfied that the motion judges reasons
    are responsive to the issues raised and permit appellate review. The appellant
    lost the case because he failed to meet his burden to establish that the
    respondent failed in her duty to mitigate damages.

[5]

There was no question that the appellant
    breached the contract to buy the respondents house for $2 million. All that
    was at issue was whether the respondent reasonably mitigated her damages when
    she sold the house to a third party for $1.91 million.

[6]

The motion judge found that she did. Her
    decision is amply supported by the record and is reasonable. The respondent was
    under no obligation to grant the appellant an extension to complete the
    purchase. The appellant had already been granted one extension and not only did
    he fail to close, but he also failed to pay the carrying costs that were a
    condition of granting the extension.

[7]

The respondent was entitled to consider the
    contract at an end when the appellant failed to close on January 14, 2020

the second closing date. The burden was on
    the appellant to establish that the respondent failed to mitigate after this
    date.

[8]

There is no merit to the appellants argument
    that the respondent failed to mitigate by not considering his subsequent offers
    and assurances, or by not replying to all of them. She was under no obligation
    to deal with him any further. She was required to take only reasonable steps in
    mitigation and the motion judge made no error in finding that she did so. Indeed,
    she listed the property with a real estate agent and negotiated the price
    upwards by over $100,000 from the initial offer she received, thus limiting the
    damages owed by the appellant.

[9]

Finally, the motion judge made no error in
    concluding that this was an appropriate case for summary judgment. Nothing
    turned on the credibility of the parties.

[10]

The appeal is dismissed. The respondent is
    entitled to costs in the agreed amount of $11,500, all inclusive.

Grant
    Huscroft J.A.

Sossin
    J.A.

L.
    Favreau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cottage Advisors of Canada Inc. v.
    Prince Edward Vacant Land Condominium Corporation No. 10, 2022 ONCA 107

DATE: 20220204

DOCKET: C69232

Doherty, Tulloch and Sossin
    JJ.A.

BETWEEN

Cottage Advisors of Canada Inc.

Appellant (Applicant)

and

Prince Edward Vacant Land
    Condominium Corporation No. 10

Respondent (Respondent)

Megan Mackey, for the appellant

Jason Mangano, for the respondent

Heard: January 6, 2022 by
    video conference

On appeal from the order of Justice Paul
    Schabas of the Superior Court of Justice dated February 17, 2021, with reasons
    reported at 2021 ONSC 1203.

REASONS FOR DECISION

I

[1]

The respondent, Prince Edward Vacant Land Condominium
    Corporation No. 10 (the Condominium), is a 237-unit cottage resort built near
    the Sandbanks in Prince Edward County, Ontario. The units are individually
    owned. The property is a summer resort, complete with pools, sports courts, and
    a fitness centre. The resort is not open in the winter. The units cannot be
    used as primary residences.

[2]

From the outset, it was understood the owners of
    individual units could rent out their units on a short-term basis when they
    were not using them. Some owners chose to do so, and others did not. As of this
    application, over half of the unit owners rented out their units on a
    short-term basis. Renters had access to the common amenities on the property.

[3]

The appellant, Cottage Advisors of Canada Inc.
    (CAC), has been involved in the Condominium from the beginning. CAC was the
    developer and declarant of the Condominium. It has owned multiple units in the
    Condominium from the outset. At the time of the application, CAC owned 25
    units.

[4]

The resort opened by 2011. CAC, through a sister
    company (SSVRM), provided management services for the Condominium and onsite
    rental services for those unit owners who wished to rent their units. SSVRM
    charged fees for those services. A by-law passed in July 2011 directed that
    renters would be subject to a rental amenity fee charged by the Corporation from
    time to time. SSVRM collected the amenity fee. None of the unit owners,
    including CAC, ever challenged the fee.

[5]

The Condominium has been operating under the
    authority of a Board of Directors since 2016. The relationship between the Board
    and SSVRM has deteriorated over the years. The Condominium and SSVRM have
    litigated over SSVRMs voting rights. The Condominium Board also terminated SSVRMs
    management agreement. CAC takes the position that the Board is controlled by owners
    who do not rent and favours the interests of that group over the owners who do
    rent. CAC is an owner/renter.

[6]

The Board decided it would take over the
    oversight, control and management of the rental activities at the Condominium.
    In furtherance of that goal, the Board introduced By-Law No. 7 in November 2020.
    The By-Law passed overwhelmingly by a vote of 155 for and 16 against. CAC did
    not vote its 25 votes.

[7]

By-Law No. 7 addressed various aspects of the
    rental activities. CAC challenged the
vires
and reasonableness of
    several components of the By-Law. The application judge struck down parts of the
    By-Law and upheld other parts. There is no appeal from the part of the application
    judges order striking down parts of the By-Law. CAC does, however, appeal the
    application judges refusal to strike down two specific components of By-Law
    No. 7.

[8]

First, CAC submits the application judge erred
    in holding the Condominium had the authority to charge owners who rented their
    units an administrative fee of about $120 each time the unit was rented. According
    to the By-Law, the fee was intended to cover costs associated with the renting
    process, e.g. registering renters, providing parking passes, and controlling
    access to the property.

[9]

Second, CAC argues the application judge was
    wrong in upholding the Condominiums power to impose an amenity fee of $310 per
    week. The fee was payable by any owner who rented his unit and was intended to
    compensate for additional wear and tear on facilities and additional staffing
    costs said to relate to short-term renting.

[10]

CAC, like the application judge, begins with
    bedrock principles. Condominium corporations are creatures of statute. By-Laws
    passed by a condominium must be consistent with the declaration establishing
    the condominium and authorized under the terms of the
Condominium Act, 1998
,
    S.O. 1998, c. 19. A by-law which is either inconsistent with the condominiums
    declaration or not authorized by the
Condominium Act
is
ultra
    vires
:
Condominium Act
,
1998,
ss. 56(6)-(8).

[11]

CAC submits that under the terms of the Condominiums
    Declaration, common expenses must be shared equally among the units. Section
    84(1) of the
Condominium Act, 1998
requires that owners contribute to
common expenses in the
    proportions specified in the declaration. CAC contends what the Condominium
    calls amenity and administrative fees are in reality fees directed toward the
    payment of common expenses. Under the terms of By-Law No. 7, they are not
    payable equally by all unit owners. Instead, unit owners who rent pay more and
    thereby subsidize the non-renting owners. CAC contends that the part of By-Law
    No. 7 which provides for administrative and amenity fees payable by owners who
    rent are inconsistent, both with the Condominium Declaration and the
Condominium
    Act, 1998
. They cannot stand according to CAC.

[12]

While CACs primary argument is that the
    relevant parts of the By-Law are
ultra vires
the Condominium, it also
    argues those parts of the By-Law are oppressive, contrary to s. 135 of the
Condominium
    Act, 1998
.

[13]

It is appropriate to begin the consideration of
    CACs submissions by reference to the Condominium Declaration. Section 22
    states:

The Cottage Units are part of a Cottage Resort
    Community and are zoned Tourist/Commercial; and it is intended that the
    Cottage Unit shall be rented as tourist accommodation when not being used by
    the Owner. The rental of any Cottage Unit shall be governed by the Rules and
    Regulations with respect to the rental of Cottage Units approved by the Board
    from time-to-time.

[14]

It is explicit in s. 22 that the Condominium
    consists of units owned by owners who do not rent and owners who do rent their
    units. It is equally explicit that those who choose to rent their units will be
    governed in part by Rules and Regulations with respect to the rental of
    Cottage Units approved by the Board.

[15]

The question becomes whether the By-Law, to the
    extent that it sets an administrative fee and an amenity fee in respect of
    rented units, is a Rule or Regulation with respect to the rental of Cottage
    Units.

[16]

This court does not answer that question as a
    matter of first impression, but must have regard to the application judges
    factual findings and due deference to the Boards own interpretation of the
    powers granted to it under the Declaration:
London Condominium Corp. No. 13
    v. Awaraji
, 2007 ONCA 154, at para. 6.

[17]

The application judge was satisfied that the
    fees offset costs attributable to the renting activities of some of the owners:
    Reasons, at paras. 32, 34. That finding was available on the evidence adduced
    on the application. The manner in which fees attributable to renting have
    historically been treated by the Condominium provide strong support for that conclusion.
    Amenity fees attributable to costs relating to renting units have been part of
    the operation of the Condominium from the outset when CAC was in control of the
    operation.

[18]

The Boards interpretation of its powers under
    s. 22 of the Declaration is not unreasonable. Nor is it inconsistent with any
    provisions in the
Condominium Act, 1998
.

[19]

Nor can the By-Laws providing for the fees be
    characterized as oppressive within the meaning of s. 135 of the
Condominium
    Act, 1998
. Oppressive conduct connotes conduct that runs contrary to the
    reasonable expectations of those said to be oppressed. Once again, the history
    of charging these kinds of fees throughout the life and operation of the
    Condominium belies any claim that the owners who rented did not anticipate and
    agree to such fees: see
Walia Properties Ltd. v. York Condominium Corp. No.
    478
, 2007 CanLII 31573, at paras. 23-24 (Ont. Sup. Ct.).

[20]

Any argument that the By-Laws were oppressive
    falls under the weight of the application judges finding that there was a
    reasonable basis upon which the Board could conclude the renting activities
    generated added costs and expenses. The revenue generated by the fees lowered
    the common expenses of all unit owners equally. As the application judge
    appropriately put it, at para. 42:

The By-law reflects a reasonable balancing
    which is confirmed by the overwhelming vote of the owners in favour of it.

[21]

The appeal is dismissed.

[22]

The respondent is entitled to costs of the
    appeal, fixed at $15,000, inclusive of taxes and disbursements. We see no
    reason to modify the costs order made by the application judge. However, if the
    parties wish to make submissions on that issue, they may do so in writing
    within 7 days of the release of these reasons. The submissions shall not exceed
    3 pages.

Doherty
    J.A.

M.
    Tulloch J.A.

L.
    Sossin J.A.


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. (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. Simpson-Fry, 2022 ONCA 108

DATE: 20220203

DOCKET: C62658

Tulloch, Pardu and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamie Simpson-Fry

Appellant

Jamie Simpson-Fry, acting in person

Avene Derwa, for the respondent

Heard: January 13, 2022 by video conference

On appeal from the convictions entered
    by Justice Joseph A. De Filippis of the Ontario Court of Justice, dated December
    19, 2014.

REASONS
    FOR DECISION

[1]

The appellant was convicted of sexual assault,
    forcible confinement, uttering threats, and breach of probation arising from an
    unprovoked attack on a stranger. The sentencing judge found the appellant to be
    a dangerous offender and sentenced him to indeterminate custody.

[2]

The appellant appealed both his conviction and
    sentence. His sentence appeal was bifurcated and was heard on September 17,
    2021, after which it was dismissed:
R. v. Simpson-Fry
, 2021 ONCA 647.

[3]

Before this panel, only the conviction appeal
    was pursued. The appellant initially advanced two main grounds of appeal, both
    on the basis of a wrongly procured guilty plea, resulting in his conviction on
    the current charges.

[4]

His first ground of appeal was that of
    ineffective assistance of counsel. Under this ground, the appellant asserted
    that he was misled by his trial counsel to follow a trial process and procedure
    that impeded his rights to a full answer and defence. In his notice of appeal,
    he claimed that at trial he wanted to challenge the statement of facts that was
    read into evidence by the Crown, but he was advised against doing so. As a
    result, he acceded to the incorrect facts and did not take the stand in his
    defence, nor call any evidence, leaving no opportunity to contest the charges
    against him. In oral argument before this panel, the appellant indicated that
    he was no longer pursuing his ineffective assistance of counsel claim but still
    argued that he was misled in proceeding with his trial in the way that it
    unfolded, by not contesting the statement of facts read into evidence by the
    Crown. The core of his argument is an attack on the trial procedure advanced by
    both the defence and the Crown at trial and accepted by the trial judge.

[5]

Second, the appellant claims that the trial
    judge was biased and misapprehended the evidence. He claims that the trial judge
    essentially rubberstamped comments and opinions from the complainant, the
    police, and two psychiatrists.

[6]

We would not give effect to any of the
    appellants arguments, and as such, for the following reasons, we dismiss the
    appeal.

[7]

The underlying facts which give rise to this
    appeal are not in dispute. On October 13, 2013, at 2:30 a.m., the complainant
    was walking home alone. The complainant observed a stranger, who later turned
    out to be the appellant, stumbling, and he appeared drunk. He asked her for
    directions and a cigarette, and the complainant attempted to evade him. He then
    grabbed her from behind. The appellant threatened to break her neck if she
    screamed, pushed her onto a nearby front lawn, and brutally raped her. During
    the assault, the appellant was mumbling and stated that he was very drunk.
    Following the assault, he told her to get up and said he would kill her if she
    ever told anyone about what happened.

[8]

The complainant reported the incident to her parents
    and the police. She was then transported to a hospital where a sexual assault
    examination was conducted. Swabs of her skin and clothing were taken for DNA
    comparisons, which subsequently matched the DNA profile of the appellant.

[9]

At trial, the appellant attempted to plead
    guilty, but he indicated that he had been too intoxicated at the time to
    remember the incident and what happened. As such, he was not in a position to
    contest the Crowns evidence. The trial judge refused to accept the guilty plea
    on those terms. The appellant then changed his plea to not guilty, and he
    consented to a process in which the Crown would read out a statement of facts
    on which the prosecutions case was based, after which defence counsel would decline
    to make submissions contesting the charges. At the trial, defence counsel
    explained that the appellant was severely intoxicated and blacked out as a
    result of excessive drinking combined with the drug GBH. As a result, the appellant
    submitted that he was not in a position to contest the charges, raise the
    defence of consent, or contest the DNA evidence implicating him. The appellant
    waived the reading of the formal election, called no evidence, and made no
    submissions.

[10]

The trial judge summarized the trial procedure that
    was followed at trial, at para. 2 of the sentencing decision:

The defendant had indicated he wished to plead
    guilty to the charges on the basis that he could not confirm or deny the facts
    alleged because of intoxication. I declined to accept such a plea On consent,
    the Crown read in the evidence that would have been given by witnesses and
    filed photographs and other exhibits. The Defence elected not to challenge the
    prosecution evidence, or call other evidence or make submissions. On this basis
    I was satisfied that the Crown had proven guilt beyond a reasonable doubt.
    [Citations omitted.]

[11]

In essence, the hearing proceeded by way of what
    this court has described as the functional equivalent of
nolo contendre
.
    While a formal plea of
nolo contendre
is not possible under the
Criminal
    Code
, R.S.C. 1985, c. C-46, its functional equivalence has developed in
    Ontario courts, as explained in
R. v. Anderson
, 2021 ONCA
    333, at para. 53:

The procedure is invoked frequently, but not
    exclusively, when the adequacy of the case for the Crown depends on certain
    evidence the admissibility of which is contested by the accused and is subject
    to pre-trial challenge and a ruling on admissibility. If the evidence is
    admitted, under a plea of not guilty, the accused accepts the case for the
    Crown, whether based on an agreed statement of facts or otherwise, and adduces
    no defence evidence. A finding of guilt follows. When this occurs, the accused
    preserves the right to challenge the evidentiary ruling on appeal, a right
    foreclosed if the plea had been guilty and could not be set aside on appeal.

[12]

As advised by this court in
Anderson
,
    at para. 54, the presiding judge confirmed with the appellant that he
    understood the potential legal risks of proceeding in this fashion. The purpose
    of doing so is to protect the fairness of the proceedings and prevent an
    unreliable verdict: see
R. v. R.P
., 2013 ONCA 53, 295 C.C.C. (3d) 28,
    at para. 66; see also
R. v. D.M.G.
, 2011 ONCA 343, 105 O.R. (3d) 481,
    at para. 59. Under s. 655 of the
Criminal Code
, the appellant admitted
    to the facts as read in by the Crown. The Crown also tendered photographic evidence
    and the complainants statement to police.

[13]

The trial record reflects considerable efforts
    by the parties to ensure that the appellant understood the legal ramifications
    of the process followed. As mentioned, at a pre-trial meeting, the trial judge explained
    the option for the appellant to plead not guilty but admit to evidence read in
    by the Crown and waive his right to challenge it. The appellant would be
    convicted if the trial judge was satisfied that the essential elements had been
    proven. At the hearing, the Crown again explained the process that would be
    followed and its implications. At trial, the trial judge reminded the appellant
    of their discussion at the pre-trial meeting, and the appellant confirmed that
    he remembered the discussion. The appellant also confirmed that he did not have
    any questions about the process as it was explained by the Crown.

[14]

We therefore cannot agree that the appellant was
    unaware of the impact of admitting the facts. Accordingly, we see no error in
    the way the trial proceeded or on the part of the trial judge.

[15]

It follows that we equally reject the
    appellants submission that the trial judge was biased or rubberstamped
    evidence from witnesses. The appellant chose not to challenge the evidence,
    adduce other evidence, or make any submissions. The appellant cannot now
    complain that the trial judge accepted uncontested evidence. The trial judge
    was entitled to do so in the circumstances, and we see no error in his
    decision.

[16]

The appeal is dismissed.

M.
    Tulloch J.A.

G.
    Pardu J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lynch, 2022 ONCA 109

DATE: 20220207

DOCKET: C69329

Paciocco, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Paul Lynch

Respondent

Sarah Egan, for the appellant

Christopher Morris, for the respondent

Heard: January 14, 2022 by video conference

On appeal from the sentence imposed by Justice Malcolm
    McLeod of the Ontario Court of Justice on April 8, 2021.

Nordheimer
    J.A.:

[1]

The Crown seeks leave to appeal the sentence of four years imposed on
    Mr. Lynch from his convictions for various drug offences, including trafficking
    in cocaine, trafficking in fentanyl, possession of cocaine for the purpose of
    trafficking, and possession of the proceeds of crime. For the following reasons,
    I would grant leave to appeal, allow the appeal, and increase the sentence to
    six years.

A.

Background

[2]

The respondent sold an undercover officer fentanyl or cocaine on six
    occasions. Prior to the completion of the seventh transaction, he was arrested
    and charged with the various drug offences I have mentioned. The respondent pleaded
    guilty to the offences. In doing so, he accepted responsibility for a total of
    965.01 grams of cocaine, 149.28 grams of MDMA and 41.37 grams of fentanyl. The
    trial judge sentenced the respondent to four years. The Crown had sought a
    sentence of ten years. The defence had sought a sentence of three years.

[3]

The trial judge gave detailed reasons for the sentence that he imposed.
    In the course of his reasons, the trial judge expressed a general dissatisfaction
    with the approach to sentencing in drug cases. He referred to statistics
    relating to the over-incarceration of individuals who commit drug offences. He
    also criticized what he perceived to be the overuse of penitentiary terms of
    imprisonment for some drug offenders.

[4]

The trial judge then went on to express other concerns with the current
    state of the law on the sentencing of persons convicted of drug offences. Among
    other things, the trial judge said:

[T]he punitive sanction of incarceration should be reserved
    for a narrowly defined category of serious offences. The extent to which we
    have ignored that instruction has created the crisis of over-incarceration
.

Mr. Lynch was convicted of serious offences for which the
    punitive sanction of incarceration is required. But in determining the
    harshness of the sentence,
it is important to pay attention to the big
    picture and acknowledge that our over-reliance on the punitive sanction of
    incarceration is rooted in the fact that we place undue weight on the
    principles of denunciation and deterrence
.

Despite the obvious inference that the punitive strategy
    applied to heroin distribution contributed to the crisis resulting from
    oxycontin distribution and then fentanyl; the criminal justice system
    determined that the same approach must be applied, with even greater rigor.

It would be contrary to principles of justice to impose a harsh
    punitive sanction on a lower level drug trafficker as if he was the
    representative of the principals of the trafficking enterprise. Harsh punitive
    sanctions are required for lower level traffickers in fentanyl, but those
    sanctions should be within the range established for low level traffickers in
    dangerous drugs.

It must be borne in mind that the fact that the OCA issued a
    blanket endorsement of the practice of punishing an offender more severely than
    he deserved is difficult to reconcile with the principles of justice and fairness.
[Emphasis added.]

[5]

The trial judge proceeded to consider the range of sentence for the
    offences that were before him. He reviewed the existing case law and concluded
    that the range of sentence for a mid-level trafficker (which he considered the
    respondent to be) dealing in fentanyl was five to eight years. He compared that
    to what he found to be the range for a mid-level trafficker dealing in cocaine,
    four to six years.

[6]

The trial judge then considered the impact that the respondents guilty
    plea should have on the ultimate sentence. He expressed the view that a guilty
    plea must be given significant weight and that it must result in a sentence
    which is significantly lower than would be imposed on a person found guilty
    after trial. The trial judge then criticized what he viewed as the practice of
    failing to give the appropriate weight to a plea of guilt. He said:

By the same token, it is hard to imagine that in such a case,
    the criminal justice system could be permitted to simply accept the plea as
    providing the opportunity to impose a harsh sentence of incarceration in the
    upper penitentiary range simply to send a message. What would the message be?
    That he was a sucker for thinking that our purpose was to promote a sense of
    responsibility in offenders, or that we were interested in restorative justice
    and mitigating the harm done to society by acting on principles of justice and
    fairness?

[7]

Finally, the trial judge noted that appellate courts have frequently
    supported sentencing judges who chose a harsh punishment as their preferred
    message, finding it to be a matter of discretion. The trial judge commented
    that this discretion must cut both ways, a result that he appeared to believe
    had not been happening.

[8]

Ultimately, the trial judge imposed a sentence of four years. He
    acknowledged that he might have chosen a sentence at the upper limit of the
    range, that is, six or seven years, but that there was no basis to think it
    would constitute a more effective message to others in the community.

B.

Issues on Appeal

[9]

The Crown seeks leave to appeal the sentence and alleges three errors committed
    by the trial judge: first, that he erred by failing to give sufficient weight
    to the principles of denunciation and deterrence; second, that he erred by
    overemphasizing the respondents guilty plea; and third, that he imposed a
    sentence that was demonstrably unfit.

C.

Analysis

[10]

In
    my view, the trial judge made fundamental errors in his reasons leading to the sentence
    he imposed. Among others, he misidentified the range of sentence for mid-level
    traffickers in cocaine and then used that erroneous range in drawing his
    comparison to the range of sentence for mid-level traffickers in fentanyl,
    thereby misapprehending the gravity of the offence. He also erred in principle
    in evaluating the respondents degree of moral blameworthiness. The trial judge
    also gave erroneous consideration to the respondents guilty plea, including by
    failing to take into account that one of the reasons underlying a range of
    sentence is that the lower end of the range has already made some effort to
    account for specific mitigating factors, such as a plea of guilt.

[11]

Before
    turning to those errors, I must comment on the general tenor and approach of
    the trial judges reasons. There is an existing debate over the appropriateness
    of judges in lower courts negatively commenting on, or criticizing, the reasons
    of higher courts. Some argue that the only appropriate place for such criticism
    is in law review articles or similar forums, but it is not appropriate in
    judicial reasons. Others argue that it is appropriate, in certain
    circumstances, for such criticisms to be included in judicial reasons, but within
    defined limits.

[12]

I
    do not propose to weigh into that debate. I will say that I can certainly
    appreciate that trial judges may, from time to time, become frustrated with a
    particular approach that is developed by appellate courts. Trial judges are on
    the front lines of the justice system and they will be the first to see if a
    particular approach is either not working or has become outdated. Measured
    expressions of that frustration may be a mechanism whereby appellate courts can
    become aware of the problem and, hopefully, correct it. After all, our approach
    to sentencing is not, and should not be, fixed in stone. Sentences may increase
    or decrease as societal and judicial knowledge and attitudes about certain
    offences change:
R. v. Parranto
, 2021 SCC 46, 463 D.L.R. (4th) 389, at
    para. 22. Trial judges are likely to be the first to become aware of such
    changes. It may also be that the expression of that frustration by trial judges
    will draw the attention of those in government who may choose to legislate a
    correction.

[13]

However,
    to the degree that a judge of a lower court considers it necessary to critically
    comment within their judicial decisions on the decisions of higher courts, it
    is important that this be done with discretion and in measured terms. Unless
    undertaken with care, criticisms by lower courts of the decisions of higher
    courts can undermine confidence in the administration of justice by needlessly denigrating
    the fairness of the law, or the authority of those who administer it. In this
    case, the trial judge, while expressing some very legitimate concerns about the
    current approach to sentencing, crossed over the line. Indeed, some of the
    comments made by the trial judge enabled the Crown to argue credibly that the
    trial judge paid lip service to the principles of denunciation and deterrence
    but ignored them in application. Given the errors in principle that I am about
    to describe, I need not pursue this ground of appeal, so I will say no more
    about it.

(1)

The trial judges specific errors

[14]

Returning
    then to the errors involved, the trial judge erred in concluding that the range
    of sentence for mid-level traffickers of cocaine is four to six years.
    Decisions of this court have established that the range for such offenders is five
    to eight years: see, for example,
R. v. Maone
, 2020 ONCA 461, at paras.
    12-13. Further, fentanyl is a more dangerous drug than is cocaine. To the
    degree that the trial judge used his comparison of these ranges to justify a
    lower sentence in this case, he erred.

[15]

To
    be clear, the trial judge initially correctly identified the sentencing range
    in this case as between six and eight years. However, he then incorrectly
    lowered that range by his erroneous comparison to what he thought was the
    comparative range for cocaine. He appears to have adopted this approach because
    of his view that all dangerous drugs should be treated the same when it comes
    to sentencing. That view itself reflects error. It is a well-established
    principle that drugs vary in the degree of danger that they represent to those
    who consume them. Consequently, the more dangerous the drug being trafficked,
    the higher the penalty that will be imposed. Fentanyl is now known to be a much
    more dangerous drug than almost any other. That reality directs that a sentence
    imposed for trafficking in fentanyl should be as long or longer than a
    corresponding sentence for trafficking in cocaine:
R. v. Olvedi
, 2021
    ONCA 518, 157 O.R. (3d) 583, at para. 56, leave to appeal to S.C.C. requested,
    39854.

[16]

Relatedly,
    the trial judge engaged in erroneous reasoning in situating the respondents moral
    blameworthiness, a key consideration in determining his degree of
    responsibility and hence a proportionate and fit sentence. First, the trial
    judge made extensive comments about the level of culpability of lower level
    traffickers in fentanyl, notwithstanding his finding that the respondent was a
    mid‑level trafficker. The comments he made about low-level traffickers
    are concerning, and clearly influenced his perception of the respondents level
    of moral blameworthiness. The trial judge suggested, for example, that in large
    part, the culpability of lower level traffickers in fentanyl were similar to
    lower level traffickers in other drugs, because they are usually the same
    people. Even if true, the fact that fentanyl traffickers may be the same
    people that traffic in other drugs has no bearing on their moral
    blameworthiness for choosing to traffic in fentanyl, a particularly dangerous
    drug. As the majority recognized in
Parranto
, at para. 70, moral
    culpability rises with the risk of serious harm the trafficker is prepared to
    expose others to.

[17]

There
    is good reason for this. The problems that dangerous drugs pose for our society
    are well known. They involve drug addiction, adverse health consequences and,
    unfortunately all too often, death. Further, drugs are often sold to already
    vulnerable people thereby exacerbating their difficult circumstances. Still
    further, there are the indirect costs to society through increased health care
    expense, increased demands on the health care system, increases in robberies or
    other forms of criminal activity, and increases in violence. Simply put, the
    greater those risks are when a particular drug is being trafficked, the greater
    the offenders culpability or moral blameworthiness for choosing to traffic in
    that drug.

[18]

The
    trial judge also erroneously downplayed the respondents role in all of these
    consequences when he said that the respondent was not the representative of
    the principals of the trafficking enterprise, who [produce] fentanyl as a
    more powerful opioid. Of course, those at the top of the supply chain deserve
    harsher sentences. But the fact that the respondent was not at the pinnacle of
    the drug dealing empire does not reduce the respondents level of moral
    blameworthiness or mean that his actions are not serious. The producers of a product
    cannot get it into the hands of the consumer if there is no one to sell and
    deliver it.

[19]

I
    also do not accept the trial judges apparent effort to diminish the moral
    blameworthiness of the respondents conduct by suggesting that his culpability
    as a drug trafficker doesnt increase because of the number of times the police
    set him up for transactions before finally making an arrest. This is not a
    situation where the police provided an irresistible opportunity to the
    respondent to do something that he would not otherwise have been inclined to
    do, as that concept is discussed in entrapment cases. Nor is it a case where
    the police simply engaged repeatedly in similar conduct to escalate the number
    of counts that could be laid. What the multiple occasions, on which he sold
    drugs to the undercover officer, served to show was that the respondent was an
    active drug dealer who was not only prepared, but able, to scale up his supply
    of drugs to meet the demands of his customer, even when the transactions
    engaged significant sums of money or included fentanyl. The initial transaction
    was for the sale of 1.55 grams of cocaine for $150. Transactions involving more
    cocaine followed. Then came the fentanyl trafficking. The last proposed
    transaction was for $12,300 of cocaine. Upon his arrest, the respondent and a
    second male were found in possession of a total of 572.29 grams of cocaine and
    149.28 grams of MDMA. The respondent ultimately took responsibility for all
    drugs sold or seized, including the drugs seized from the second male. In my
    view, rather than lessening the respondents moral blameworthiness through
    repetition, the repeated transactions, increasing in seriousness, exposed the
    scale of his drug trafficking enterprise and amplified his moral
    blameworthiness.

[20]

The
    trial judge also erred in overemphasizing the guilty plea in this case. He did
    so in at least two respects. The first is that the mitigating effect of a guilty
    plea will vary in weight from case to case:
R. v. Daya
, 2007 ONCA 693,
    229 O.A.C. 291, at para. 15. A guilty plea where there is a genuine issue for
    trial may be worthy of more weight than a guilty plea in a case where the
    outcome of a trial is evident to all concerned. Similarly, a guilty plea in a
    complicated case, where the trial may take many weeks of court time, may also
    be worthy of greater weight than one given in the context of a case where the
    trial would last a day or two. Simply put, one cannot adopt a universal
    approach to the significance of a guilty plea as a mitigating factor. There is
    no indication that the trial judge gave any regard to the circumstances
    surrounding the respondents guilty plea, which came in the face of an
    overwhelming case.

[21]

Second,
    the trial judge erred in evaluating the effect that the guilty plea should have
    on how the respondent should be sentenced relative to the sentencing range. In
    saying all of this, I recognize that simply departing from a range of sentence
    may not itself constitute an error justifying appellate intervention:
Parranto
,
    at para. 29. Appellate intervention is warranted, however, where the reason for
    the departure is an erroneous understanding of the factors leading to the
    adoption of the range or a rejection of the range as flawed. In this case, the
    trial judge committed both of these errors.

[22]

The
    trial judge failed to recognize that the range of sentence allows for the
    application of mitigating factors such as guilty pleas. That is why there is a
    range. Sentences at the lower end of the range will be justified by the
    individual mitigating factors of the case. Indeed, mitigating factors may
    justify going below the bottom end of the range. Among those mitigating factors
    is a guilty plea. However, the fact that the accused person has pleaded guilty will
    not, by itself, generally justify going below the bottom of the range,
    particularly not in a case such as this where, as the trial judge recognized, the
    respondents background and circumstances do not entitle him to exceptional
    leniency.

[23]

These
    errors infected the sentence that was imposed. They rendered the sentence an
    unfit one, given the circumstances underlying the offences. It thus falls to
    this court to determine the appropriate sentence.

(2)

The appropriate sentence

[24]

While
    the Crown asked for a ten-year sentence before the trial judge, and repeated
    that request in its factum, at the hearing the Crown reduced the request to a sentence
    of eight years. This reduction resulted, at least in part, from the recent
    decision of
Parranto
where the Supreme Court of Canada upheld ten-year
    sentences for individuals who were higher level drug dealers than the respondent
    was.

[25]

The
    Crowns requested sentence is not unreasonable in the circumstances of this
    case. Indeed, it reflects the level of sentence suggested by this court: generally,
    offenders  even first offenders  who traffic significant amounts of fentanyl
    should expect to receive significant penitentiary sentences:
R. v. Loor
,
    2017 ONCA 696, at para. 50. In fashioning an appropriate sentence, it must not
    be forgotten that the respondent was also convicted of trafficking in almost a
    kilogram of cocaine.

[26]

However,
    the Crowns requested sentence fails to give adequate consideration to the fact
    that the respondent pleaded guilty. While the trial judge and I might differ on
    the level of mitigation that should be applied for a plea of guilt in these
    circumstances, I do not quarrel with him that it is a significant mitigating
    factor. I am also cognizant of the fact that the respondent has a criminal
    record consisting of only a single entry, unrelated to drug activity. He is
    also relatively young  29 years of age at the time of the offences. Consequently,
    after accounting for these mitigating factors, I would impose a sentence of six
    years.

D.

Conclusion

[27]

The motion for leave to appeal the sentence
    is granted. The appeal is allowed. The sentence of four years is set aside,
    and, in its place, a sentence of six years is substituted. The credit of six
    months for time spent on strict bail is not challenged so the ultimate sentence
    to be served is five and one-half years.

Released: February 7, 2022 David M. Paciocco J.A.

I.V.B. Nordheimer J.A.

I agree. David M. Paciocco J.A.

I agree. Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Paddy-Cannon v. Canada (Attorney General), 2022
    ONCA 110

DATE: 20220207

DOCKET: C67642

Lauwers, Coroza and Sossin JJ.A.

BETWEEN

Darlene Marie
    Paddy-Cannon, Rosemarie Ethel Christie

and Sharon Geraldine
    Cannon

Plaintiffs (Appellants)

and

The Attorney General of Canada and Katherine
    Cannon

Defendants (Respondents)

Rosemarie
    Ethel Christie, acting in person

Michael J. Prestell and Connor Barbeau, for the
    respondent Katherine Cannon

Daniel
    Luxat, for the respondent the Attorney General of Canada

Heard: September 2, 2021 by video conference

On appeal
    from the judgment of Justice J. Christopher Corkery, dated September 30,
    2019, with reasons reported at 2019 ONSC 5665.

Coroza J.A.:

A.

OVERVIEW

[1]

Darlene Marie Paddy-Cannon, Rosemarie Ethel Christie, and Sharon
    Geraldine Cannon, the appellants, are sisters. The respondent Katherine Cannon
    is their aunt. The appellants lived with Katherine and her family when they
    were children, during which time they allege that Katherine physically abused
    them. The allegations relate to events that began over fifty years ago, when
    the appellants were very young.

[2]

The appellants sued Katherine for damages, alleging assault and battery.
    They also claimed damages against the Attorney General of Canada (Canada) for
    breaching its fiduciary duty to protect them from physical abuse by Katherine.

[3]

In his reasons for judgment, the trial judge framed the issues raised by
    the appellants claim in the following way:

1.

Did Katherine Cannon physically abuse the appellants as they allege?

2.

If the answer to question one is yes, what damages are the appellants entitled
    to?

3.

If the answer to question one is yes, did Canada owe the appellants a
    fiduciary duty or a duty of care at common law and, if so, did they breach that
    duty?

[4]

The trial judge found that the appellants were credible witnesses. However,
    he was not persuaded that the appellants were physically abused by Katherine. He
    concluded that the passage of several decades made it impossible for him to
    determine that the appellants evidence was reliable. He dismissed the claim. Since
    the claim against Canada was predicated on the allegation of physical abuse by Katherine,
    that claim was also dismissed.

[5]

The appellants appeal, alleging several errors in the trial judges
    analysis.

[6]

As I will explain below, I have concluded that the trial judges decision
    must be set aside. In my respectful view, the trial judges assessment of the
    appellants reliability reveals an error in principle. While I agree with the
    trial judge that the passage of time was a factor to be taken into account, in
    my view, he considered this factor as nearly determinative and without
    following the guidance set out by the Supreme Court of Canada in
R. v. W. (R.)
,
    [1992] 2 S.C.R. 122, on how to assess the evidence of adults testifying to
    events of abuse that occurred when they were children.

B.

BACKGROUND FACTS

(1)

The Family Arrangement

[7]

Sharon, Darlene, and Rosemarie were born in 1959, 1960, and 1963
    respectively. The appellants are all members of the Thunderchild First Nation,
    an independent Cree First Nations band in Turtleford, Saskatchewan.

[8]

The appellants parents separated in the early 1960s and their father brought
    them to Ontario, to his mothers home, planning to have his mother raise the
    children. However, on or about May 1, 1965, she died.

[9]

After their grandmothers death, the appellants went to live with the respondent
    Katherine and her family. Katherine lived with her husband and their three
    children. Darlene arrived first, aged four and a half; a few months later,
    Rosemarie came, aged eighteen months old; and roughly three years later, Sharon
    joined, aged between eight and ten.

[10]

Katherine
    was 81 years old at the time of trial. While raising her children, she worked
    as a custodian at the school her children attended. Katherine states that she
    is Algonquin and a Chief, but the appellants contest this and have asked this
    court to consider fresh evidence in the form of documents that they claim
    demonstrates that this assertion is false.

(2)

The Assaults

[11]

The
    appellants alleged that Katherine physically abused them while in her care and
    that this abuse was known to other members of the household. Katherine, her
    husband, and her children deny the allegations.

[12]

To
    support their case, the three appellants testified as well as Sharons
    psychologist. The appellants testified to various forms of abuse.

(a)

Darlenes Allegations

[13]

Darlene
    remembers Katherine beating her with her hands, a leather belt, and a teachers
    razor strap, specifically on her lower back, buttocks, and upper legs. According
    to Darlene, these beatings were a regular occurrence and in response to Katherines
    mood when Darlene, for example, spilled milk, did not come when called, or wore
    a boys army jacket at school once. Darlene witnessed her sister, Rosemarie,
    being beaten until she stopped breathing and her face turned blue. Darlene testified
    that Katherines daughters saw the beatings but never received the belt
    themselves. Darlene said that Katherine told her that if she reached out to anyone
    for help, she would kill them.

(b)

Rosemaries Allegations

[14]

Rosemarie
    remembers being hit frequently, also on the buttocks, and often with the belt. She
    testified that the three sisters were mostly beaten together and that the only
    people who saw it, other than the appellants, were Katherines daughters. Rosemarie
    does not remember every incident.

(c)

Sharons Allegations

[15]

Sharon
    remembers Katherine beating her sister Rosemarie with a razor strap. At trial, when
    asked to describe the beatings, Sharon could only recall a couple of incidents.
    She testified to having issues with her memories. Sharon recalled more of a
    feeling of constant fear of Katherine and general feelings of what she believes
    was PTSD living in that home. Sharon did recall being beaten in the kitchen,
    around the head and face, until blood was drawn. Sharon contacted the
    Childrens Aid Society (CAS), requesting to meet with someone while Katherine
    was not home, but did not get a chance to speak to the CAS worker without
    Katherine being present.

[16]

The
    appellants testified to recollections of verbal abuse in addition to the
    physical abuse. The appellants eventually left Katherines home and, at some
    point after that, lived with their father in Peterborough for a period of time.
The exact circumstances of their departure are
    contested, but at the time of leaving Katherines home, the appellants were
    teenagers.

(d)

Katherines Evidence

[17]

Six
    witnesses testified at trial on behalf of the respondent Katherine: herself, her
    husband, two of her daughters, her son-in-law, and her niece.

[18]

Katherine
    denied the appellants allegations. The only physical discipline she used on
    the appellants and her own children was slapping their hands if they did
    something dangerous. She testified that Rosemarie used to have seizures,
    prompting Katherine, based on instructions she had received from medical
    professionals, to slap Rosemarie on the diaper and shake her. Katherine denied calling
    the appellants parents rude names and testified that, to her and her husband, it
    felt like the appellants were their daughters.

[19]

Katherines
    daughters testified that the appellants were an integrated part of the family.
    They received the same treatment, the same gifts on birthdays and Christmas,
    travelled together for camping vacations, and suffered the same discipline, in
    particular, being spanked on the hands or being put in a time out. Both
    daughters testified that a belt or strap was never used.

[20]

Katherines
    niece was close with the family, especially Rosemarie. She testified that she
    never saw any physical punishment by Katherine, though may have heard threats
    of physical punishment. Katherines brother-in-law testified to the same, that he
    could not recall Katherine physically hitting any of the children and never saw
    a belt or razor strap being used.

[21]

Katherines
    two daughters recalled Rosemaries seizures, while Katherines husband and
    brother-in-law did not.

[22]

The
    testimonies overall reveal very different factual accounts, and as the trial
    judge noted, both versions cannot be true.

(e)

Canada

[23]

Canada
    called no evidence at trial. The claim against Canada was predicated on the appellants
    allegation of physical abuse by their aunt, and Canada took no position on the
    appellants claim against Katherine.

[24]

According
    to the appellants, Canada, through the federal department of Indian Affairs as
    it existed then, advised the CAS in Belleville in 1966 that it believed it
    would be in the best interests of the children to return them to their home
    reserve, but then Canada failed to manage this return or monitor their
    placement, breaching its fiduciary duty to protect the appellants by leaving
    them in the respondent Katherines care.

[25]

Canada
    takes the position that it inquired with the appellants maternal relatives and
    advised the CAS that maternal relatives were indeed willing to care for them.
    Canada offered to arrange their travel to Saskatchewan. However, the CAS rejected
    this idea. According to the CAS, the appellants were not in need of protection
    and would not be apprehended and relocated to Saskatchewan. Canada argued that
    it did not have the legal authority to decide what was in the best interests of
    the appellants. That authority belonged to the provincial CAS in Belleville.

C.

DECISION BELOW

[26]

The
    trial judges reasons contain a lengthy summary of the evidence, a discussion
    of some of the relevant legal principles, and then a very brief conclusory assessment
    of the appellants evidence, comprised of no more than six paragraphs. The
    trial judges reasons include no analysis of the evidence of the respondent Katherine,
    except for a brief, conclusory mention that all the witnesses presented as
    credible.
[1]

[27]

In
    his assessment of the evidence, the trial judge found that the appellants presented
    as credible and appeared to be sincere, truthful, and honest. He recognized
    that each experienced a traumatic and tragic childhood. However, he concluded
    that [i]n this case, the passage of several decades make it impossible for me
    to determine that the [appellants] evidence is reliable. As I read his
    reasons, he found the appellants evidence unreliable for two primary reasons. First,
    their testimony often lacked specifics because all three appellants relied on
    generalizations, introducing their testimony with phrases such as Sometimes,
    I believe, and As I recall. Second, their testimony was inconsistent with
    each others as to details of the assaults, for example, whether they were
    primarily beaten individually or collectively.

D.

POSITIONS OF THE PARTIES

(1)

Appellants Position

[28]

At the hearing, the panel was advised that
    Rosemarie planned to argue the appeal on behalf of all three appellants (and
    that neither Sharon nor Darlene would be appearing on video). We allowed Rosemarie
    to argue on behalf of all the appellants because we were satisfied that they
    shared common ground and were raising the same grounds of appeal. Collectively,
    these grounds of appeal amount to an overarching complaint about how the trial
    judge assessed their evidence.

(2)

Katherines Position

[29]

For her part, the respondent Katherine argues that
    the trial judge carefully considered all of the trial evidence and in finding
    that the appellants were not reliable, the trial judge relied on significant
    and material inconsistencies in the testimonies of the three appellants regarding
    how the beatings occurred, the number of them, whether the appellants were
    together or apart, and even whether certain beatings actually did occur. The
    respondent Katherine argues that in the absence of palpable and overriding
    error, the trial judge is owed deference.

(3)

Canadas Position

[30]

The respondent Canada repeats the arguments made
    at trial. It submits that while there may have been an agreement in 1965
    between Canada and Ontario regarding the provision of welfare services, that
    specific agreement concerned welfare services on a reserve. That is not the
    situation here  the Cannon home was not on reserve, just provincial land. Therefore,
    the provincial CAS had legal authority and Canada was not liable for the
    alleged assaults, if they, in fact, had occurred.

E.

DISCUSSION

(1)

Overview

[31]

For the purposes of this appeal, I need only
    address the appellants submission that the trial judge improperly determined
    they were not reliable witnesses because of the passage of time. The appellants
    contend that the passage of time did not relieve the trial judge of his duty to
    assess the evidence especially in the context of beatings of the appellants as young
    children. In my view, this submission has substantial merit.

[32]

I
    start with the observation that on appeal, I must keep in mind that there is a
    presumption that the trial judge correctly applied the law, particularly
    regarding the relationship between reliability and credibility, and that on a
    functional and contextual reading of trial reasons, the focus is whether the
    trial judge turned his mind to the relevant factors that go to the
    believability of the evidence in the factual context of the case, including
    truthfulness and accuracy concerns:
R. v. G.F.
, 2021 SCC 20, 71
    C.R. (7th) 1, at para. 82.

[33]

It
    is undisputed that when adult witnesses testify about events that occurred when
    they were children, in general their evidence should be assessed by the
    criteria applicable to adult witnesses:
W. (R.)
, at p. 134. However
,
inconsistencies and lack of memory in that
    testimony must be considered in the context of the age of the witness at the
    time of the events:
W. (R.)
, at p. 134; see also
R. v. Pindus
,
    2018 ONCA 55, at para. 37;
R. v. Radcliffe
, 2017 ONCA 176, 347 C.C.C.
    (3d) 3, at para. 34, leave to appeal refused, [2017] S.C.C.A. No. 274. I do not
    suggest that a trial judge is required to make explicit reference to these
    principles in reasons for judgment. However, I must be satisfied that the trial
    judge applied the appropriate principles.

[34]

The
    trial judges very brief analysis in this case reveals that he was mindful that
    the events had occurred some time ago. Before turning to the appellants
    evidence, the trial judge mentioned that the allegations related to events that
    began over fifty years ago, when the appellants were very young.

[35]

Respectfully,
    however, the trial judges approach to the appellants testimony reveals that
    he allowed the passage of time to overwhelm his analysis, and his criticisms of
    the appellants testimony indicate that he was not alive to the principles for
    assessing adult testimony of childhood abuse.

(2)

The trial judge erred
    in his approach to the appellants testimony

[36]

For
    ease of reference, I set out the trial judges analysis on the witnesses
    evidence in its entirety:

[219] All of the witnesses in this case presented as credible. The
    [appellants] in particular, like the complainant in
R. v. Sanichar
,
    appeared to be sincere, truthful, and honest. I have no difficulty in
    recognizing that they experienced traumatic and tragic childhoods. It may well
    be that much of the trauma is attributable to their experiences in the Cannon
    home. However, the trial was not an inquiry. The Courts task is not to
    determine what happened in the Cannon home. The issue I must determine is
    whether the [appellants] have proven on a balance of probabilities the physical
    abuse that they allege occurred.

[220]
In this
    case, the passage of several decades make it impossible for me to determine
    that the [appellants] evidence is reliable
. Considering all of the
    evidence, I am not persuaded that the physical abuse that they described
    actually occurred
.

[221] Much of the evidence provided by the [appellants] was
    framed in generalizations and lacking in detail and specifics. Testimony often
    included sentences that were introduced with the words, I believe, As I
    recall, Sometimes. It is understandable that there would be some
    uncertainty given the passage of so much time. It was difficult, however, to
    understand what parts of their evidence the [appellants] were actually certain
    of, if any.

[222] There were inconsistencies in the evidence of one [appellant]
    compared to another. For example, Rosemarie testified that the majority of time
    the [appellants] were beaten together. She had to go upstairs and get her
    sisters to come down to the kitchen, where they would line up and get the belt
    because of her. Darlene testified about several incidents she remembered when
    she was beaten alone. She said she would be beaten if she cried when Rosemarie
    was beaten. They were not collectively whipped every time, it depended on Katherines
    decision. Sharon described the two incidents she recalled of being beaten
    herself and one incident she saw four-year-old Rosie being beaten with a strap,
    but no incidents of being lined up for a collective beating.

[223] Rosemarie acknowledged that she does not remember all of
    the incidents she believed occurred. They come back in pieces. Sharon testified
    that she could swear that she didnt get hit, but she has been told thats
    inaccurate.

[224]
There are too many uncertainties
    and too many inconsistencies
in the evidence of the [appellants] for me
    to determine that it is reliable. [Emphasis added.]

[37]

In
    his reasons, the trial judge referenced this courts decision in

R. v. Sanichar
, 2012 ONCA
    117, 280 C.C.C. (3d) 500, revd, 2013 SCC 4, [2013] 1 S.C.R. 54. In that case,
    Blair J.A. for the majority stated that in cases involving historic acts of
    sexual and physical abuse, particular scrutiny is called for in approaching the
    reliability of the evidence. The trier of fact must be mindful of serious
    inconsistencies in a witnesss account as well as the subtle influences that
    may have distorted memory over time:
Sanichar
, at paras. 38-39. The
    passage of time may influence the witnesss ability to observe, recall and
    recount the events at issue accurately:
Sanichar
, at para. 70,
per
Laskin J.A. (dissenting, but not on this point). The trial judge was clearly
    alive to this caution in
Sanichar.
[2]

[38]

Sanichar
does not, however, instruct a trial judge to reject witness testimony as
    unreliable because time has passed. The trial judge concluded that [i]n this
    case, the passage of several decades make it impossible for me to determine
    that the [appellants] evidence is reliable. His reasons reveal that he
    treated the passage of time as nearly determinative of the appellants unreliability.
    Respectfully, the passage of time cannot overwhelm a trier of facts assessment
    of the evidence, and I agree with the appellants submission that treating the
    passage of time as determinative in this case is akin to imposing a limitation
    period on the appellants claim. This is the wrong approach.

[39]

I
    accept that
Sanichar
advises triers of fact to be mindful of time, and
    appropriately cautious, when assessing testimony of events from a distant past.
    However, as noted above,
W. (R.)
and other cases require
that when assessing the testimony of adults trying to
    recount childhood memories, triers of fact must also be mindful of the context when
    addressing inconsistencies and a lack of memory.

[40]

In
W. (R.)
, McLachlin J. (as she then was) stated, at p. 134:

It is neither desirable nor possible to state hard and fast
    rules as to when a witness's evidence should be assessed by reference to adult
    or child standards  to do so would be to create anew stereotypes potentially
    as rigid and unjust as those which the recent developments in the law's
    approach to children's evidence have been designed to dispel. Every person
    giving testimony in court, of whatever age, is an individual, whose credibility
    and evidence must be assessed by reference to criteria appropriate to her
    mental development, understanding and ability to communicate. But I would add
    this.
In general, where an adult is testifying as to
    events which occurred when she was a child, her credibility should be assessed
    according to criteria applicable to her as an adult witness. Yet with regard to
    her evidence pertaining to events which occurred in childhood, the presence of
    inconsistencies, particularly as to peripheral matters such as time and
    location, should be considered in the context of the age of the witness at the
    time of the events to which she is testifying
. [Emphasis added.]

[41]

In
Pindus
, Laskin J.A. stated, at para. 37,
    that when an adult witness gives evidence about events that took place in
    childhood, inconsistencies and lack of memory have to be considered in the
    context of the age of the witness at the time of the events.

[42]

In
    my view, the emphasis the trial judge placed on two aspects of the appellants
    testimony demonstrates that he was not alive to the context of the age of the
    appellants at the time of the events to which they were testifying.

[43]

First,
    the trial judge criticized the appellants evidence as framed in
    generalizations and lacking in detail because they used the phrases Sometimes,
    I believe, and As I recall. However, the appellants were children when the
    assaults allegedly occurred. The mere fact that they prefaced many of their
    answers with these qualifications did not, by itself, mean that their evidence
    was unreliable. Indeed, it is hardly surprising that a witness who is
    testifying to things that occurred decades ago would use these words.

[44]

Furthermore,
    it seems to me that the record does not support the trial judges finding that
    their evidence lacked detail. Without opining on the appellants reliability, several
    examples in their accounts reveal a high level of detail, suggesting the trial
    judge was overly critical of this evidence and overemphasized the passage of
    time.

[45]

For
    example, Rosemarie was able to recall that she was first hit when she was about
    four or five and playing with a bottle of aspirin by filling it up with water.
    She recounted that she was grabbed by the shoulder, dragged by Katherine to the
    kitchen who started to hit her, and then taken to the living room where she was
    thrown on the couch. She also recounted other incidents where she was hit by a
    belt.

[46]

Darlene,
    for example, was able to recall specific incidents that provoked Katherine to
    physical abuse, such as spilling milk or wearing a boys army jacket at school,
    and she testified that the first belt Katherine used was thirty-six inches long
    and about two and a half inches wide before she switched to using a razor
    strap. According to Darlene, this razor strap had been given to Katherine by Mrs. Quay,
    a schoolteacher.

[47]

Sharon
    testified that while she had difficulty recalling events and had blocked out
    several memories in her mind, she did recall some very vivid acts of being
    beaten with a leather belt, razor strap, or by hand. Sharon also described one
    specific incident when she was struck in the head, the face, and the nose in
    the kitchen area by Katherine and one of Katherines daughters, Karen, and that
    she was positive that blood was running after the beating.

[48]

Second,
    the trial judge did not point to any internal inconsistencies in the appellants
    individual accounts but noted that they were not consistent with each others
    descriptions of the mechanics of the beatings. He listed three inconsistencies
    that undermined their reliability: Rosemarie said they were beaten together;
    Darlene said she was beaten alone but would be beaten if she cried when
    Rosemarie was beaten; and Sharon recalled two incidents of being beaten herself
    and one incident when she saw Rosemarie being beaten with a strap.

[49]

It is unclear why this inconsistency about being beaten collectively or
    individually disqualified the appellants testimony about events which occurred
    when they were all children.
The trial judge did not explain how these
    contradictions detracted from the core of their story, and reviewing his
    reasons in light of the record, it remains unclear as to why he did not
    consider these inconsistencies as peripheral: see
W. (R.)
, at p. 134.

[50]

To
    be clear, it is not an error for a trial judge to take notice of specific
    phrases used by a witness and inconsistencies between accounts as part of their
    overall assessment of the testimony of a witness. It goes without saying that
    inconsistencies can be a significant factor in determining the credibility and
    reliability of that evidence. However, the analysis here is too sparse. These
    two examples clearly played a major role in the assessment of the evidence. The
    trial judges focus on these two examples appears out of line with how a trier
    of fact must approach adult testimony as to events from childhood.

[51]

Respectfully,
    because the analysis is so brief, the passage of time treated as nearly
    determinative, and the appellants testimony criticized without sufficient
    explanation or acknowledgement of context, I conclude that the trial judges
    finding that the appellants were unreliable was arrived at by an error in
    principle. A new trial is warranted.

[52]

There
    are several reasons why a new trial is the appropriate remedy. First, we do not
    have the advantage that the trial judge had of hearing these witnesses firsthand.
    Second, there are no specific findings as to the respondent Katherines witnesses,
    other than they were credible. Third, the trial judges reasons are practically
    silent as to the claim against Canada. Therefore, it is not in the interests of
    justice or feasible on a practical level to simply decide this case on the
    record filed.

[53]

As
    set out above, Canadas involvement in the appeal is intertwined with the
    specific finding that the appellants complaints had not been proven. During
    the oral hearing of this appeal, counsel for Canada agreed that it would have
    been preferable for the trial judge to have made findings on the viability of
    the claim against it, but since the parties in the court below asserted that
    the claim against Canada was entirely predicated on the finding that there was
    a tort, the trial judge did not address the issue of Canadas liability.

[54]

Since
    the trial judge did not make any findings on the issue of Canadas liability,
    and the parties may end up taking the same approach in addressing the claim
    against Canada, in my view, the forum to litigate the claim against Canada is
    at a new trial.

F.

DISPOSITION

[55]

For
    these reasons, I would allow the appeal and order a new trial. In light of this
    conclusion, it is not necessary to address the appellants application for fresh
    evidence and the other grounds of appeal. However, I note that the respondent
    Katherine agrees that the trial judge in his reasons did misstate the evidence
    of Darlene concerning Rosemaries seizures and that he misidentified the perpetrator
    who allegedly molested Darlene as the brother of Darlenes mother when it was
    actually alleged to be Katherines brother. There is no need to comment further
    on these errors because they are not germane to my decision to allow the appeal.

[56]

The
    court will accept written costs submission of no more than five pages in length
    relating to the appeal costs and the trial costs beginning with the appellants.
    They should file their submissions within 15 days after the release of these
    reasons. The respondents Katherine and Canada shall have 15 days to respond.
[3]

Released: February 7, 2022 P.L.

S Coroza J.A.

I agree. P. Lauwers J.A.

I agree. Sossin J.A.

[1]
In
Champoux v. Jefremova
, 2021 ONCA
    92, Hourigan J.A. noted, at para. 21, that there is nothing impermissible in
    providing a detailed factual recitation in reasons for judgment but that it is
    not a substitute for a considered analysis of the issues. I agree with his
    observation that [w]hat frequently happens when reasons begin with a very
    detailed recitation of the evidence is that when it comes time to grapple with
    the issues in the case, the analysis is largely conclusory: at para. 21; see also
Welton v. United Lands Corporation Ltd.
,
    2020 ONCA 322, 64 C.C.E.L. (4th) 265, at para. 61. This description applies to
    the reasons in this case.

[2]

Sanichar

was overturned on
    appeal because the Supreme Court of Canada, agreeing with Laskin J.A.s
    dissent, held that there was no requirement in law for a trial judge to
    self-instruct on the dangers of convicting because the complainants evidence related
    to historic events and suffered from various frailties. However, the majoritys
    comments as to reliability were not directly overturned and remain instructive.

[3]

Canada advised the panel during oral submissions that it was
    not seeking costs of the appeal.