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. 539(1),
    (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of
    the
Criminal Code
provide:

539(1)          Prior to the commencement
    of the taking of evidence at a preliminary inquiry, the justice holding the
    inquiry

(a) may, if application therefor is made
    by the prosecutor, and

(b) shall, if application therefor is
    made by any of the accused, make an order directing that the evidence taken at
    the inquiry shall not be published in any document or broadcast or transmitted
    in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand
    trial, the trial is ended.

(2)     Where an accused is not
    represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)     Everyone who fails to comply with
    an order made pursuant to subsection (1) is guilty of an offence punishable on
    summary conviction

(4)      [Repealed, 2005, c. 32, s.
    18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985,
    c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2016 ONCA 235

DATE: 20160331

DOCKET: C61452

Strathy C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Blake Wilson

Respondent

Dena Bonnet, for the appellant

Ariel Herscovitch, for the respondent

Heard:  March 16, 2016

On appeal from the order of Justice Nola Garton of the Superior
    Court of Justice, dated November 20, 2015, with reasons reported at 2015 ONSC
    7224, quashing the order of Justice J.M. Grossman of the Ontario Court of
    Justice, dated September 22, 2014, committing the appellant to stand trial for
    first degree murder.

Benotto J.A.:

[1]

Firefighters responding to a fire alarm found a 72-year-old woman dead in
    her apartment. She died of neck compression and there was semen in her mouth.
    The respondent was charged with first degree murder based on the allegation
    that he caused her death while committing or attempting to commit a sexual
    assault.

[2]

The preliminary inquiry judge committed the respondent to stand trial on
    first degree murder. On review, the Superior Court judge determined that there
    was no evidence upon which a properly instructed jury could conclude that the
    victim had not consented to the sexual contact. There was therefore no evidence
    of a sexual assault. The reviewing judge determined that the respondent should
    stand trial on second degree murder.

[3]

The Crown appeals the decision of the reviewing judge and seeks to have
    the first degree murder charge reinstated. Before this court, there was no
    issue as to identity. Nor was there an issue that the respondent had a sexual
    encounter with the victim. The sole issue on appeal is whether there was
    evidence that a sexual assault had taken place.

Facts

[4]

In the early afternoon of July 13, 2013, firefighters entered an
    apartment in response to a fire alarm. They found the deceased on the bed. Her
    head and shoulders were lying on the foot of the bed and the rest of her body
    was lying on the floor.

[5]

Dr. Pollanen, Ontarios chief forensic pathologist, testified about the deceaseds
    injuries. She had bruises on her body around her right and left shoulder
    blades, her left buttock, and the muscles in the back or nape of her neck. There
    was also had bleeding under the skin of her neck on the top of the voice box
    and a fracture on the left side of her larynx. Dr. Pollanen said that
    significant force was required to overcome the rigid strength of the cartilage
    in the neck and throat area. The force would have been close to the amount
    necessary to break a bone. The cause of death was neck compression. She died
    before the fires were set.

[6]

Dr. Pollanen opined that these injuries were caused while she was alive
    by something forcibly hitting her or by her body forcibly striking something. He
    concluded that the injuries reflected by these bruises occurred at around the
    same time as the injuries to her neck  that is, between a few minutes and a
    few hours before death.

[7]

Joanne Cox, a forensic biologist with the Centre of Forensic Sciences,
    testified that semen was swabbed from the deceaseds mouth. The DNA profile
    matched the respondent.

[8]

There were surveillance cameras in the apartment building where the
    deceased lived. Video showed a male exiting the elevator on the deceaseds
    floor and walking down the hallway at approximately 12:00 p.m. The same man was
    seen leaving the west stairwell of the apartment building at 1:08 p.m. In the
    1:08 p.m. video, the man is wearing a shirt and carrying another identified as
    belonging to the victims roommate.

[9]

The fire alarm sounded at 1:12 p.m. and firefighters arrived four
    minutes later. Investigators determined that three individual fires had been
    deliberately set in the deceaseds apartment.

[10]

At
    about 2:12 p.m. on the day of the murder, the individual seen on the
    surveillance video in the deceaseds building attempted to take money from an
    ATM at the subway entrance of the College Park complex with the access card
    issued to the deceased.

[11]

There
    was evidence of an advertisement in NOW magazine with the deceaseds registered
    phone number suggesting she was a sex-trade worker. The cell phone that was in
    the respondents possession when he was arrested made two calls to the deceased
    on the night before her murder. On July 13, 2013, his phone was used to make three
    calls to her at 11:47 a.m., 11:50 a.m., and 12:04 p.m. The deceased received and
    answered four other calls after 12:04 p.m. The last one was answered at 12:28
    p.m., when she stopped answering calls.

The Preliminary Inquiry

[12]

The
    preliminary inquiry judge committed the respondent to stand trial for first
    degree murder pursuant to s. 231(5)(b) of the
Criminal Code
, R.S.C.
    1985, c. C-46, which provides:

231(5) Irrespective of whether a murder is planned and
    deliberate on the part of any person, murder is first degree murder in respect
    of a person when the death is caused by that person while committing or
    attempting to commit an offence under one of the following sections:

(b) section 271 (sexual assault)

[13]

The
    preliminary inquiry judge considered the evidence and found that a reasonable
    inference could be drawn that a sexual assault had been committed.   He found
    that  although an inference could be drawn that the deceased consented to the
    sexual contact given that she was engaged in sex work  there was also support
    for the inference that she did not consent to the sexual contact. In his view,
    the evidence of Dr. Pollanen regarding the deceaseds injuries gave rise to the
    reasonable inference that consent was not present when semen was deposited in
    her mouth. He found that it could be reasonably inferred that she was killed in
    her apartment before the fire occurred.

[14]

He
    relied on the phone records that show that the deceased did not answer her
    phone after 12:28 p.m., the video footage of the male person leaving at around
    1:08 p.m., and the fire alarm generated at 1:12 p.m. He found that it was
    reasonable to infer that between 12:30 p.m. and 1:08 p.m. an act of oral sex
    occurred, a significant degree of force was applied to the victim causing
    injuries, neck compression was applied that caused the victims death, and three
    fires were set. He concluded that the nature of the injuries and neck
    compression causing death dramatically took events out of the arena of
    consensual behaviour and constituted evidence on which a reasonable jury,
    properly instructed, could return a verdict of guilt for first degree murder.

[15]

In
    summary, he concluded that even if consent could be inferred, the evidence also
    supported the inference that consent was not present.

Certiorari
Application

[16]

The
    respondent brought an application to quash his committal on first degree murder
    on the basis that there was no evidence on which a reasonable jury, properly
    instructed, could find that he committed a sexual assault on the deceased. He
    conceded that there was sufficient evidence to support his committal on second
    degree murder.

[17]

The
    reviewing judge allowed the application. She found that, other than the
    violence involved in the murder, there was no evidence of a sexual assault. She
    referred to evidence from which consent could be inferred: the accuseds
    attendance at the apartment was for sexual services in response to the
    advertisement in NOW magazine; the telephone contact between the accused and
    the deceased; the absence of any evidence of forced entry; the absence of
    evidence of a pre-existing relationship between the accused and the deceased to
    suggest any other reason for the phone calls than to set up an appointment for sexual
    services; and the presence of semen from at least one other male in the
    deceaseds vaginal cavity.

[18]

In
    the reviewing judges view, the preliminary inquiry judge conflated the fact
    that the deceaseds death was caused by a violent non-consensual act with the
    question of whether the sexual activity was non-consensual. Simply put, she
    found there was no evidence to bridge or link the act of violence to the sexual
    act.

Issue on Appeal

[19]

There
    is only one issue to be determined: was there evidence of a sexual assault upon
    which, if believed, a jury could find that the killing occurred while the
    respondent was committing a sexual assault? If so, then the preliminary inquiry
    judge did not exceed his jurisdiction. If not, then the reviewing judge was
    correct to conclude that he did. This analysis requires a consideration of the
    respective roles of the preliminary inquiry judge and the reviewing judge.

The Role of the Preliminary Inquiry Judge

[20]

Subsection
    548(1) of the
Criminal Code
reads as follows:

548 (1) When all the evidence has been taken by the justice, he
    shall

(a) if in his opinion there is sufficient evidence to put the
    accused on trial for the offence charged or any other indictable offence in
    respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in
    his opinion on the whole of the evidence no sufficient case is made out to put
    the accused on trial for the offence charged or any other indictable offence in
    respect of the same transaction.

[21]

The
    test for committal is well settled: is there any evidence on which a reasonable
    jury properly instructed could return a guilty verdict? A preliminary inquiry judge
    must commit the accused to stand trial in any case in which there is admissible
    evidence which could, if it were believed, result in a conviction:
United
    States of America v. Shephard
, [1977] 2 S.C.R. 1067, at p. 1080.

[22]

The
    test is the same whether the evidence is direct or circumstantial. However, with
    circumstantial evidence, there is an inferential gap between the evidence and
    the matter to be established. The question becomes whether the elements of the
    offence to which the Crown has not advanced direct evidence may reasonably be
    inferred from the circumstantial evidence.

[23]

The
    preliminary inquiry judge must therefore engage in a limited weighing of the
    evidence to assess whether it is reasonably capable of supporting the
    inferences that the Crown asks the jury to draw. This does not entail considering
    whether he or she would conclude that the accused is guilty. Nor does the judge
    draw factual inferences or assess credibility. Rather, the preliminary inquiry judge
    asks whether the evidence, if believed, could reasonably support an inference
    of guilt:
R. v. Arcuri
, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 1
    and 23.

[24]

Any
    reasonable interpretation or permissible inference from the evidence, beyond
    conjecture or speculation, is to be resolved in the prosecutions favour. At
    the preliminary inquiry stage, if more than one inference can be drawn from the
    evidence, only the inferences that favour the Crown are to be considered:
R
.
v. Sazant
, 2004 SCC 77, [2004]
    3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the
    function of the trier of fact:
R. v. Clarke
(2002)
, 159 O.A.C. 221, at para. 4.

The Role of the Reviewing Judge

[25]

The
    scope of
certiorari
review is very limited
: R. v. Russell
,
    2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19. In
R. v. Manasseri,
2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28, Doherty J.A. explained:

[T]he reviewing court does not
    simply redo the limited weighing function assigned to the preliminary inquiry
    judge. The reviewing court can interfere only if jurisdictional error is
    established. The jurisdictional error inquiry looks not at the correctness of
    the ultimate decision, but at whether the preliminary inquiry judge exceeded or
    declined to exercise his or her jurisdiction in the course of arriving at that
    decision. [Citations omitted.]

[26]

As
    summarized in
R. v. Martin,
2001 CanLII 4971 (Ont. C.A.), at para. 3:

It is well settled that where there is a scintilla of evidence
    upon which the preliminary inquiry judge could conclude that the test is
    satisfied, a reviewing court should not intervene to quash the committal. See
    also
R. v. Russell
, where the Supreme Court of Canada reaffirmed the
    limited scope of review on certiorari to review committals for trial and
    reiterated that a preliminary inquiry judge's determination of the sufficiency
    of evidence is entitled to the greatest deference. It is only if there is no
    evidence on an element of the offence that a reviewing court can vacate the
    committal.         [Citations omitted.]

[27]

A
    preliminary inquiry judge commits a jurisdictional error by committing an
    accused when an essential element of the offence is unsupported by the
    evidence.  However, that does not entail the reviewing judge asking whether she
    would have arrived at a different result. As the majority in
R. v.
    Deschamplain
, 2004 SCC 76, [2004] 3 S.C.R. 601, explained at para. 23: [I]t
    would be improper for a reviewing court to intervene merely because the
    preliminary inquiry judges conclusion on sufficiency differs from that which
    the reviewing court would have reached.

[28]

A
    preliminary inquiry judges determination is therefore entitled to the greatest
    deference. The reviewing judge must only decide whether there was an
    evidentiary basis on which the court below could form the opinion that the
    evidence was sufficient to justify a committal for trial.

Analysis

[29]

I
    have concluded that the preliminary inquiry judge did not exceed his
    jurisdiction. There was evidence upon which a reasonable jury, properly
    instructed, could reasonably infer that the sexual encounter was not
    consensual.   Therefore, the reviewing judge exceeded the limited scope of permissible
    review by interfering with the committal on first degree murder.

[30]

The
    whole of the evidence before the preliminary inquiry judge grounded the
    inferences he drew. David Watt in
Watts Manual of Criminal Evidence
(Toronto:
    Carswell, 2014), at § 9.01, defines inferences:

An
inference
is a deduction of fact that may logically and reasonably
    be drawn from another fact or group of facts found or otherwise established in
    the proceedings.  There can be
no
inference without objective facts
    from which to infer the facts that a party seeks to establish. If there are
no
positive proven facts from which an inference may be drawn, there can be no
    inference, only impermissible speculation and conjecture.  [Emphasis in
    original.]

[31]

In
    my view, there were facts in the evidence before the preliminary inquiry judge
    from which a lack of consent to the sexual act could be logically and reasonably
    drawn. The nature and location of the injuries, the position of the deceased on
    the bed, and the amount of time the attacker was in the apartment  all taken
    together with the remaining evidence  form a group of facts from which a
    reasonable inference of lack of consent could be drawn. I turn to the
    significance of these facts.

[32]

The
    victims injuries were concentrated on her throat, the nape of her neck, upper back,
    and buttock. Significant force was required to inflict these injuries. She was
    found with her head and shoulders on the bed and her feet and the rest of her
    body off the bed. The jury could infer that this reflects her last position
    when alive, and is consistent with a position in which the sexual act would
    take place. The location of these injuries on the upper part of her body and
    the position of her body allow for the reasonable inference that the oral sex
    was  at least at some point  forced.

[33]

There
    is also the time frame. At its longest, the attacker was in the apartment from
    12:00 p.m. to 1:08 p.m.  slightly over an hour. The deceased stopped answering
    her phone at 12:28 p.m. Because of the phone calls that the deceased was
    receiving and answering until 12:28 p.m., the preliminary inquiry judge
    inferred that the sexual activity and the deceaseds death occurred sometime in
    the 40 minutes between that time and when the attacker left at 1:08 p.m.  This
    is an inference open to the jury.

[34]

Putting
    the case at its highest for the Crown, this brief time frame supports the
    inference that the sex was not consensual. During this short time, many things
    occurred: sexual contact between the accused and the deceased; the infliction
    of a violent beating; neck compression causing death; the gathering of combustible
    items to set three separate fires; the theft of the victims bank card; and the
    attacker found and took the deceaseds roommates shirts. The short timeline
    allows for the inference that the violence overlapped with the sexual act,
    particularly in light of the deceaseds injuries.

[35]

Taken
    together, these facts support the reasonable inference that the sexual contact
    was not consensual. They elevate the Crowns allegation that the sexual act was
    non-consensual beyond speculation, and, if believed, could support an inference
    of guilt beyond a reasonable doubt. That other inferences may be available is
    of no moment since, at the preliminary inquiry stage, inferences are resolved
    in favour of the Crown.

[36]

The
    reviewing judge substituted her own findings without resolving the inferences
    in favour of the Crown or taking its case at its highest. She referred
to
R. v. MacDonald
,
[2004] O.J. No 1756 (C.A.), to reject
    the proposition that a connection between sexual activity and a violent killing
    gives rise to a charge of first degree murder under s. 235(1)(b). However, in
    that case, there was no evidence of the anal intercourse that was the
actus
    reus
of the alleged sexual assault. The other sexual act that occurred in
MacDonald
was not alleged to have been non-consensual. Here, there is clear evidence of
    the sexual act in the form of the semen in the mouth of the deceased. Though the
    inference was available that the oral sex was consensual, there is evidence to
    support the competing inference that it was not. This distinguishes the case
    from
MacDonald
.

[37]

The
    evidence taken as a whole can reasonably support the inference that the deceased
    did not consent to the sexual act.

Disposition

[38]

I
    would allow the appeal and reinstate the preliminary inquiry judges committal
    for trial on first degree murder.

Released: March 31, 2016

M.L. Benotto
    J.A.

I agree G.R.
    Strathy C.J.O.

I agree P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ross-Clair v. Canada (Attorney General), 2016 ONCA
    205

DATE: 20160314

DOCKET: C59741

Gillese, Epstein and Roberts JJ.A.

BETWEEN

Ross-Clair, a division of R.O.M. Contractors Inc.

Applicant (Respondent)

and

Attorney General of Canada

Respondent (Appellant)

Jacqueline Dais-Visca, for the
    appellant

Jeffrey A. Armel and Daniel T. Resnick, for the
    respondent

Heard: September 25, 2015

On appeal from the order of Justice Thomas R. Lederer of
    the Superior Court of Justice, dated November 13, 2014, with reasons reported
    at 2014 ONSC 6551.

Epstein J.A.:

OVERVIEW

[1]

This case involves the interpretation of a provision in a construction
    contract forming part of the process that allowed the contractor to advance a
    claim for compensation in excess of the contract price.

[2]

On July 24, 2007, the respondent, Ross-Clair, a division of R.O.M.
    Contractors Inc., entered into a contract (the Contract) with the appellant, Her
    Majesty the Queen, as represented by Public Works and Government Services
    Canada (PWC). Under the Contract, Ross-Clair agreed to build management
    offices at the Millhaven Institution (the Project). For ease of reference, I
    will refer to the two contracting parties as Ross-Clair and PWC. The
    agreed-upon Contract price was fixed at $7,923,800, excluding taxes. By its
    terms, the Contract required completion by January 24, 2009.

[3]

The Contract provided for a detailed procedure governing the
    circumstances under which Ross-Clair could claim additional compensation arising
    out of changes in soil conditions or PWCs neglect or delay. I will refer to these
    requests for additional compensation as claims for extras  the term normally
    used in the industry.

[4]

Central to this procedure was General Condition (GC) 35.4. This clause
    enabled Ross-Clair to submit a claim for extras to the Project Engineer.
[1]
The claim had to be in writing and was expressly required to be supported by information
    sufficient to allow the Engineer to determine whether it was justified. The Engineers
    written decision or direction in this respect was final and binding, subject
    only to the provisions of the dispute resolution conditions found in the
    Contract (the DRC). The DRC provided that, if Ross-Clair rejected the
    Engineers decision, it had 15 working days to provide the Engineer with
    written notice of its dispute. The delivery of this notice would then engage a
    process ultimately allowing the parties to proceed to binding arbitration.

[5]

In the course of working on the Project, Ross-Clair advanced a claim for
    extras in the amount of $2,204,676 (the Claim). PWC took the position that Ross-Clair
    did not provide a description of the facts and circumstances giving rise to the
    Claim sufficient to enable the Engineer to determine whether or not it was
    justified.

[6]

Since a decision by the Engineer was the only route to payment for
    extras, Ross-Clair brought an application under r. 14.05(3)(d) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, for an order compelling PWC to
    direct the Engineer to consider the Claim and issue a written decision as to whether
    Ross-Clair was entitled to additional payment. Once the Engineers decision was
    rendered, the parties could, if necessary, proceed to binding arbitration.

[7]

The application judge dealt with the amount of the Claim in two parts.
    He held that Ross-Clairs claim for $1,437,976 of the $2,204,676 requested (the
    $1,437,976 Claim) met the contractual requirements relevant to advancing a
    claim for extras and directed the Engineer to make a decision as to whether the
    $1,437,976 Claim was justified. With respect to the remaining $766,700 (the
    $766,700 Claim), the application judge held that the information Ross-Clair
    provided was not sufficient to enable the Engineer to determine whether it was justified.
    The application judge therefore dismissed the application with respect to the
    $766,700 Claim.

[8]

PWC appeals the application judges decision with respect to the $1,437,976
    Claim.

[9]

The interpretation of GC 35.4  specifically what constituted a written
    claim sufficient to enable the Engineer to determine whether a claim for extras
    was justified  is the focus of the dispute between the parties and of this
    appeal.

[10]

PWC
    submits that, on a proper interpretation of GC 35.4, the $1,437,976 Claim lacked
    information sufficient to enable the Engineer to determine whether it was
    justified. Ross-Clair contends that the application judges conclusion demonstrates
    neither an extricable error in law nor palpable and overriding error.

[11]

I
    would allow the appeal. For the reasons that follow, I have concluded that the
    application judge fell into error in interpreting GC 35.4. Specifically, he
    interpreted the provision in isolation without regard to related provisions in
    the Contract. In my view, when GC 35.4 is properly interpreted, the information
    Ross-Clair provided in support of the $1,437,976 Claim did not meet the provisions
    requirements as the information was not sufficient to enable the Engineer to
    determine whether or not the $1,437,976 Claim was justified.

BACKGROUND FACTS

The Relevant Contractual Provisions

[12]

The
    Contract contained interrelated provisions that established a procedure under
    which Ross-Clair could seek payment for extras relating to changes in soil
    conditions, or neglect or delay by PWC. As the application judge noted, these
    provisions may be considered to be a Code that governed the rights and
    obligations relating to a claim for extras.

[13]

GC
    35 formed the central part of this Code. For the purposes of my analysis, it is
    necessary to set out GC 35 in its entirety:

GC 35 (1994-01-10) Changes in Soil Conditions and
    Neglect or Delay by Her Majesty

35.1   Subject to GC 35.2
    no payment, other than a payment that is expressly stipulated in the contract,
    shall be made by Her Majesty to the contractor for any extra expense or any
    loss or damage incurred or sustained by the contractor.

35.2   If the contractor
    incurs or sustains any extra expense or any loss or damage that is directly
    attributable to

35.2.1 a substantial
    difference between the information relating to soil conditions at the work site
    that is contained in the Plans and Specifications or other documents supplied
    to the contractor for use in preparing the contractors tender or a reasonable
    assumption of fact based thereon made by the contractor, and the actual soil
    conditions encountered by the contractor at the work site during the
    performance of the contract, or

35.2.2 any neglect or
    delay that occurs after the date of the contract on the part of Her Majesty in
    providing any information or in doing any act that the contract either
    expressly requires Her Majesty to do or that would ordinarily be done by an
    owner in accordance with the usage of the trade,

the contractor shall,
    within ten (10) days of the date the actual soil conditions described in GC
    35.2.1 were encountered or the neglect or delay described in GC 35.2.2
    occurred, give the Engineer written notice of intention to claim for that extra
    expense or that loss or damage.

35.3   When the
    contractor has given a notice referred to in GC 35.2, the contractor shall give
    the Engineer a written claim for extra expense or loss or damage within thirty
    (30) days of the date that a Final Certificate of Completion referred to in GC
    44.1 is issued and not afterwards.

35.4   A written claim
    referred to in GC 35.3 shall contain a sufficient description of the facts and
    circumstances of the occurrence that is the subject of the claim to enable the
    Engineer to determine whether or not the claim is justified and the contractor
    shall supply such further and other information for that purpose as the
    Engineer requires from time to time.

35.5   If the Engineer
    determines that a claim referred to in GC 35.3 is justified, Her Majesty shall
    make an extra payment to the contractor in an amount that is calculated in
    accordance with GC 47 to GC 50.

35.6   If, in the opinion
    of the Engineer, an occurrence described in GC 35.2.1 results in a savings of expenditure
    by the contractor in performing the contract, the amount set out in the
    Articles of Agreement shall, subject to GC 35.7, be reduced by an amount that
    is equal to the saving.

35.7   The amount of the
    saving referred to in GC 35.6 shall be determined in accordance with GC 47 to
    GC 50.

35.8   If the contractor
    fails to give a notice referred to in GC 35.2 and a claim referred to in GC
    35.3 within the times stipulated, an extra payment shall not be made to the
    contractor in respect of the occurrence.

[14]

As
    can be seen, the provisions contain two main requirements  time and the
    provision of information in support of a claim for extras.

The Claim

[15]

The
    Claim emerged and was discussed in a series of letters between Ross-Clair and
    PWC, and Ross-Clair and the Engineer. As can be seen from the following
    summary, the nature of what was being discussed by the parties is at times
    unclear. Ross-Clair appears to have treated the correspondence as involving both
    a request for an extension of time and a claim for compensation for extras, whereas
    PWC often refers solely to the request for a non-compensable extension of time.

[16]

In
    a letter from Ross-Clair to the Engineer dated December 5, 2008,
[2]
Ross-Clair provided notice of the $1,437,976 Claim
[3]
:

Due to delays by the Institution in the start of construction
    for Building "E", we hereby request Project time extension as per our
    revised Schedule, dated December 1, 2008, which indicates completion date of
    September 14, [2]009. The Schedule is based on a tentative start date for
    Building "E" of December 15, 2008.

The original Schedule was based on the Tender/Contract
    documents, which did not tie-in, start of construction for Building
    "E" to completion of "E" Yards.

As a result of the delays and extension of the Schedule there
    will be additional cost incurred, which will be quantified and forwarded for
    your review in due course.

[17]

The
    Engineer responded to Ross-Clair in a letter dated December 16, 2008, stating
    that "there [was] insufficient evidence to suggest that all of [the] delay
    [was] the direct cause of the Institution". The Engineer therefore requested
    additional details to support the $1,437,976 Claim.

[18]

On
    December 22, 2008, a meeting of representatives of Ross-Clair, PWC and the
    Engineer was held to discuss, among other things, Ross-Clairs request for an
    extension of time to complete the Project, and associated costs. The report of
    the meeting discloses that the representative for PWC requested a detailed
    breakdown of the projected costs and the impact on the Project, in order to
    examine the $1,437,976 Claim. Ross-Clair agreed to respond to this request by
    January 10, 2009.

[19]

On
    February 27, 2009, PWC wrote to Ross-Clair expressing concern about the default
    in Ross-Clairs obligation to complete the Project by January 25, 2009 and
    reminding Ross-Clair of its promise to submit a request for an extension of
    time.

[20]

Ross-Clair
    replied to the February 27, 2009 letter on March 2, 2009. Referring to its letter
    of December 18, 2008 as a request for an extension of time to complete the
    Project, Ross-Clair then outlined the basis for that request. Ross-Clair also
    indicated that the March 2 letter was to respond to PWCs request for
    additional information in relation to the extension of time, and to provide PWC
    with additional cost information. The March 2 letter contained a description of
    circumstances that, according to Ross-Clair, caused delay in completing
    Buildings A, E and J. In particular, Ross-Clair cited delays due to site
    conditions, weather conditions, alterations to the [C]ontract and disruptions
    to the original sequence of construction as necessitating the December 18,
    2008 request for an extension of time. Attached to the letter was a document
    entitled Additional Costs Summary that listed various subcontractors and the
    costs attributed to their work. These costs totalled $1,437,976.

[21]

Other
    than the Additional Costs Summary, the letter of March 2 did not contain any
    other supporting documentation.

[22]

In
    letters dated April 7, 2009 and April 20, 2009, PWC wrote to Ross-Clair requesting
    further documentation in support of Ross-Clairs request for an extension of
    time to complete the Project. The April 7, 2009 letter noted that the extension
    would be treated as non-compensable until the supporting documentation
    necessary to validate the [$1,437,976 Claim was] received and the costs
    associated with [Ross-Clairs $1,437,976 Claim could] be fully explored. The
    Engineer also wrote to Ross-Clair on May 29, 2009, expressing its concerns as
    to the extension of time and requiring Ross-Clair to submit a detailed plan of
    action.

[23]

On
    October 6, 2009, PWC responded to Ross-Clairs request for an extension of time
    and compensation, as follows:

[PWCs] priority at present is to achieve completion as
    quickly as possible, and our preference would be to deal with your claim [(the
    $1,437,976 Claim)], once you have finalized it and provided supporting
    documentation, after completion is achieved.

It was not until March 2, 2009, that Ross[-]Clair set out its
    impact cost claim for $1.437 million, although no indication was provided as to
    what time period this cost claim related nor what assumptions were embedded in
    it.

Since December, 2008, all parties have been working towards the
    Target Date, but there has been no agreement reached with regards to the causes
    for the delays, and [PWC] has advised that it disputes Ross[-]Clair's
    entitlement to compensation during the delay period.

Lack of coordination, late start-up, poor scheduling, and
    inadequate resourcing by Ross[-]Clair are all factors which in our view have
    contributed to the delays experienced to date. As well, certain delay factors,
    such as weather, would not ordinarily be compensable in any event. A more in
    depth analysis of the delays on the Project will need to be completed in order
    for the parties to be in any position to allocate responsibility for the delay.

In terms of compensation issues, Ross[-]Clair has provided no
    indication of what assumptions are behind the $1.437 million claim for
    additional compensation. These assumptions, together with all relevant
    supporting documents, must be provided before we can assess this aspect of your
    claim. You will need to also provide information indicating your efforts and
    those of your subcontractors aimed at mitigating impact costs.

We would draw your attention to GC 51 of the Contract. In
    order for us to assess your impact cost claim we require that you produce all
    your cost estimates including your original tendering estimating sheets, and
    all records including general ledgers and books of account, and all other
    supporting documents relevant to your impact cost claim.

Once we have received additional
    information from you relating to the assumptions and factual background to your
    claim, we would suggest that we meet to discuss it, after which the Engineer
    will determine whether any portion of the claim is justified.
Once the
    Engineer makes that determination, Ross[-]Clair can consider the processes
    available under the [C]ontract for resolving disputes. [Emphasis added.]

[24]

In
    this letter, PWC extended the time to complete the Project to September 14,
    2009. This extension was granted without compensation and without prejudice to
    [PWCs] right to contest [Ross-Clairs] entitlement to any time extension or
    compensation from [PWC] related to such an extension.

The Correspondence Continues

[25]

On
    March 31, 2011, Ross-Clair wrote to PWC further to its Delay Claim of March 2,
    [2]009, submitting a claim for extras incurred as a result of delays in
    ongoing work in Building E as well as additional work carried out under change
    orders from September 14, 2009 to April 20, 2010. This correspondence contained
    no breakdown of the costs being claimed. It said only that [t]he additional
    cost incurred [was] in the amount of $766,700.00, for a Total Revised Claim of
    $2,204,676.00 and offered to provide additional information as required in
    support of its Claim. This additional amount formed the basis of the $766,700
    Claim.

[26]

PWC
    wrote to Ross-Clair on April 20, 2011 and advised:

Your letter dated April 2, 2011
[4]
requesting additional funds for the delay claim did not contain a sufficient
    level of detail. [PWC] has not received sufficient supporting documents or
    information that would allow it to determine if the [Claim] is justified, or if
    the compensation sought is fair and reasonable. Please provide documentation to
    substantiate each of your costs on the original [$1,437,976 Claim] and the
    additional [$766,700 Claim] that you have referenced in your letter of April 2,
    2011, with proof that the delays responsible for these additional costs were
    caused by [PWC]. Until this is received [PWC] will not be able to assess your entitlement
    to any additional compensation.

[27]

Ross-Clairs
    work on the Project was certified by the Engineer as complete on February 10,
    2012. Ross-Clair was not granted any further extension to the Contract.

[28]

The
    record contains only one further communication from Ross-Clair in support of
    the Claim. On May 28, 2013, Ross-Clair provided PWC with a report called
    Analysis of Delays and Additional Costs" (the "Knowles Report").

THE APPLICATION JUDGES REASONS

Ross-Clairs Compliance with its Notice
    Obligation under GC 35.2

[29]

The
    application judges analysis started with whether the December 5, 2008 letter
    from Ross-Clair to the Engineer constituted notice in accordance with GC 35.2.
[5]
The application judge noted that counsel for PWC acknowledged that Ross-Clair
    had complied with the notice requirement.
[6]

Ross-Clairs Compliance with its Obligations
    under GC 35.3 and GC 35.4

[30]

The
    application judge then turned to Ross-Clairs obligations under GC 35.3 and GC
    35.4, which, for convenience, I will reproduce again here
:

35.3   When the
    contractor has given a notice referred to in GC 35.2, the contractor shall give
    the Engineer a written claim for extra expense or loss or damage within thirty
    (30) days of the date that a Final Certificate of Completion referred to in GC
    44.1 is issued and not afterwards.

35.4   A written claim
    referred to in GC 35.3 shall contain a sufficient description of the facts and
    circumstances of the occurrence that is the subject of the claim to enable the
    Engineer to determine whether or not the claim is justified and the contractor
    shall supply such further and other information for that purpose as the
    Engineer requires from time to time.

[31]

The
    application judge expressed what he saw as the core of the dispute as follows:

The question to be posed is whether what is required is notice of
    the claim or proof of it? The answer lies somewhere between the two. There has
    to be more than notice but less than the proof an arbitrator would require.
    Notice, that is advice of an intention to make a claim, is provided through the
    provision of [GC] 35.2. This is the requirement for notice within 10 days of
    the actual soil conditions being encountered or the delay having occurred. This
    is the provision that [PWC] conceded has been complied with. On the other hand,
    there has to be enough information for the Engineer to be able to decide if the
    claim is justified. This need not be proof of the claim. The idea that proof is
    not necessary is demonstrated by the recognition that more information could be
    required and confirmed by the negotiations and mediation the process calls for
    before any disagreement goes to binding arbitration.

[32]

The
    application judge relied on this courts decision in
Technicore Underground Inc. v.
    Toronto (City)
,
2012
    ONCA 597, 354 D.L.R. (4th) 516,
for the
    proposition that providing notification of a claim for extras in accordance
    with the terms of the parties agreement is a condition precedent to the
    consideration of such a claim and ultimately access to the dispute resolution
    process. The application judge, referring to GC 35.8, observed that if he were
    to find that Ross-Clair had failed to give the Engineer a written claim, as
    stipulated by GC 35.4, within 30 days of the date when the Final Certificate of
    Completion was issued, Ross-Clair would not be entitled to any extra payment in
    respect of the Claim.

[33]

The application judge observed that GC 35.4 did not expressly demand a detailed
    claim, as had been the case in
Technicore.
Rather, GC 35.4 required
    only a written claim that contained a sufficient description of the facts and
    circumstances of the occurrence ... to enable the Engineer to determine whether
    or not the claim [was] justified.

[34]

Against
    this background, the application judge set out his conclusion in relation to
    the $1,437,976 Claim as follows:

To my mind, the notice provided by the letter of December 5,
    2008, in company with the letter of March 2, 2009 (particularly the Additional
    Cost Summary it enclosed), is enough to comply with this requirement. I say
    this understanding that the Engineer, receiving this notice, is not a stranger
    to the project but an active participant in reviewing its progress.

[35]

In relation to the $766,700 Claim, the application judge found that the letter
    of March 31, 2011 did nothing more than increase the amount of the [$1,437,976
    Claim] by $766,700. The letter contained no description of the facts or
    circumstances explaining the increase. There was nothing on which the Engineer
    could base a decision. According to
Technicore
,
the Knowles Report, which provided details of this additional amount claimed,
    could not be considered as, contrary to GC 35.3, it was delivered later than 30
    days after the issuance of the Final Certificate of Completion.

[36]

The
    application judge therefore held that the $1,437,976 Claim complied with GC 35.4
    but that the $766,700 Claim did not.

The Engineers Compliance with its Obligation to
    Render a Decision

[37]

The
    application judge went on to note that, under the Contract, the Engineer had to
    render a decision on a properly supported claim for extras.
He therefore considered whether
    such a decision had been made
in relation
    to the $1,437,976 Claim.

[38]

The
    application judge observed that, in its letter of October 6, 2009,
PWC provided Ross-Clair with a
    preliminary response to Ross-Clairs request for additional compensation and an
    extension of time
to complete the
    Project. In that letter, PWC denied responsibility for any delay and took the
    position that a more in-depth analysis of the delays in the Project would be
    needed in order to be in any position to allocate responsibility.

PWC
    expressed concern that Ross-Clair had provided no indication of the assumptions
    behind the $1,437,976 Claim and made it clear that such assumptions, together
    with all relevant supporting documents and information about efforts taken to
    mitigate impact costs, had to be provided so that the $1,437,976 Claim could be
    assessed.

[39]

The
    application judge concluded that the October 6, 2009 letter did not constitute
    a decision and that the Engineer was required to make one in relation to the $1,437,976
    Claim:

A decision should have been made. It may be that [PWC] blames
    Ross-Clair for not complying with its request for more information. Maybe
    Ross-Clair did not appreciate the impact of the terms of the [C]ontract and
    delayed doing what it was asked to do. Be that as it may, the requisite notice
    for the [$1,437,976 Claim] was made. A decision is required.

ANALYSIS

[40]

I
    would frame the issues raised on this appeal as follows:

(i)

What is the standard of review?

(ii)

Did the $1,437,976 Claim meet the requirements of GC 35.4?

Issue One: What is the Standard of Review?

[41]

The
    parties disagree on the applicable standard of review.

[42]

In
    oral argument, counsel for PWC submitted that the Contract was a standard form
    contract. Counsel acknowledged that the Contract was unlike a typical standard
    form contract, in that the process through which the parties agreed upon the
    terms of their bargain allowed for selection from among PWCs array of standard
    clauses. The individual clauses themselves, however, were in a standard form used
    in all such contracts with the federal government. The meaning of GC 35.4 had
    been raised in prior case law, and it can be assumed that its interpretation
    would have precedential value. These characteristics support a standard of
    review of correctness, in line with recent appellate decisions in
Vallieres
    v. Vozniak
, 2014 ABCA 290, 580 A.R. 326;
Precision Plating Ltd. v. Axa
    Pacific Insurance Company
, 2015 BCCA 277, 387 D.L.R. (4th) 281, leave to
    appeal refused 2016 CarswellBC 64 (S.C.C.);
Ledcor Construction Limited v.
    Northbridge Indemnity Insurance Co.
, 2015 ABCA 121, 386 D.L.R. (4th) 482,
    leave to appeal granted [2015] S.C.C.A. No. 188; and
MacDonald v. Chicago
    Title Insurance Co. of Canada
, 2015 ONCA 842, 127 O.R. (3d) 663.

[43]

PWC
    contends that a correctness standard is appropriate for another reason. PWC
    argues that the application judge committed an extricable error of law by
    interpreting GC 35.4 without regard to other relevant provisions in the
    Contract.

[44]

Ross-Clair
    argues that, given that the Contract allowed for some degree of negotiation,
    the deferential standard of review confirmed by the Supreme Court in
Sattva
    Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633,
    applies.

[45]

In
    my view, the decision is reviewable on a standard of correctness.

[46]

I
    do not come to this conclusion based on a finding as to the nature of the
    Contract. Although it may be appropriate to regard the Contract as a standard
    form agreement, the interpretation of which is subject to review on a
    correctness standard, it is difficult to arrive at a definitive resolution of
    that question on this record. There is scant evidence of the circumstances
    surrounding the formation of the Contract, particularly any aspects that may
    have been negotiated. There is also scant evidence of the extent to which the
    terms in the Contract are used in other agreements with the Government of
    Canada. Moreover, the fact that in a previous decision, the court was required
    to interpret a very similar contractual provision does not provide a basis for
    a conclusion that the interpretive exercise in this case would have the
    potential precedential value that influenced the decisions in
Vallieres
,
Precision Plating
,
Ledcor
,

and
Chicago Title
.

[47]

My
    view rests on PWCs alternative argument. For reasons I will now explain, I
    agree that, in interpreting the Contract, the application judge erred by
    failing to construe the Contract as a whole. Accordingly, it falls to this
    court to properly interpret and apply GC 35.4.

The
    Application Judge Erred in Interpreting GC 35.4 in Isolation

[48]

One
    of the fundamental principles of contractual interpretation is that the
    contract must be construed as a whole:
Sattva,
at para. 64. In
Tercon
    Contractors Ltd. v. British Columbia (Transportation and Highways)
, 2010
    SCC 4, [2010] 1 S.C.R. 69, at para. 64, the Supreme Court expressed this
    contractual interpretation imperative as follows: the words of one provision
    must not be read in isolation but should be considered in harmony with the rest
    of the contract and in light of its purposes and commercial context. A proper
    interpretation of GC 35.4 had to involve a consideration of the other
    provisions in the Contract, specifically those comprising the Code.

[49]

As
    can be seen from the excerpt from the reasons set out above at para. 31, the
    application judge identified his interpretive task as having to determine
    whether GC 35.4 required notice of the claim or proof of it. He found the
    answer lay somewhere between the two. He observed that, unlike the agreement in
Technicore
, the Contract did not contain the phrase detailed claim
    or list specific requirements for the contents of a claim for extras. Based on
    these observations, the application judge concluded that more information than
    that contained in the letters of December 5, 2008 and March 2, 2009 was not
    required under GC 35.4.

[50]

It
    is clear that in coming to this conclusion, the application judge looked no
    further than the words in GC 35.4 itself. He did not take into account the
    relationship between that provision and the other related parts of the Code.

[51]

In
    order to understand the impact of related provisions in the Code on the interpretation
    of GC 35.4, it is helpful to summarize how, according to this Code, a claim for
    extras is intended to function.

[52]

I
    start with GC 35.4 and then turn to how it fits into the Code.

[53]

It
    is important to bear in mind that a claim contemplated by GC 35.3 and GC 35.4
    has several components. First, there is a form requirement  it must be in
    writing. Second, there is a sufficiency requirement  it must contain a
    sufficient description of the facts and circumstances to enable the Engineer to
    make a decision as to whether the claim is justified. Finally, there is a time
    requirement  the claim must be given to the Engineer within 30 days of the
    date that a Final Certificate of Completion is issued.

[54]

I
    now turn to certain aspects of the process by which a contractor seeks payment
    for extras. The contractor must give written notice under GC 35.2. This notice
    must be followed by a written claim under GC 35.3 and GC 35.4. However, while
    the contractor must give notice within ten days of the occurrence giving rise
    to the claim for extras, the contractor has time to submit the actual claim. In
    fact, GC 35.4 itself provides an opportunity for the Engineer to request
    further information in support of the Claim and the contractor to respond to
    any such request. As previously noted, GC 35.4 expressly allows this process to
    continue beyond the date when the work is certified as being complete.

[55]

If
    the Engineer determines the claim is justified, GC 35.5 mandates that PWC
    shall make an extra payment to the contractor in an amount calculated in
    accordance with GC 47 to GC 50.

[56]

The
    nature of the information required by GC 49 to 50 provides additional context
    for the interpretation of GC 35.4. GC 49 deals with how costs are determined,
    prior to undertaking work. GC 49.2 provides that, in order to facilitate
    approval of a change, the contractor must submit a cost breakdown identifying, at
    a minimum, the costs of labour, plant, and material; each subcontract amount; and
    the amount of the percentage mark-up. GC 50 contemplates the submission of
    equally, if not more, detailed information in circumstances where it was not
    possible to predetermine the price of a change.

[57]

In
    summary, the Code contemplates a process for dealing with a contractors claim
    for extras in which the Engineer has control sufficient that it can fulfill its
    obligation to determine whether a claim is justified. The Engineer receives the
    claim. The Engineer decides whether the information provided within the
    prescribed time frame is sufficient to determine if the claim is justified. If
    so, the Engineer decides the amount, if any, to be paid to the contractor
    again, subject to arbitration. The Engineer fulfills this important role in the
    context of a Code that, in my view, depends on a highly specific informational
    component.

[58]

It
    is apparent that the application judge, in interpreting the information
    required by GC 35.4, did not take into account the context of the rest of the Contract,
    particularly that provided by the Code. Rather, his approach to the
    interpretive exercise was as Doherty J.A. described in
Glimmer Resources
    Inc. v. Exall Resources Ltd.
(1999), 119 O.A.C. 78 (C.A.), at para. 17  he
    gave meaning to the word claim by looking at it under an interpretative
    microscope in isolation. This constitutes an extricable error of law.

Issue Two: Did the $1,437,976 Claim meet the requirements of
    GC 35.4?

[59]

For
    the reasons that follow, I conclude that the application judges determination that
    the $1,437,976 Claim met the requirements of GC 35.4 cannot stand. It follows
    that his direction that the Engineer make a decision in respect of the
    $1,437,976, Claim similarly cannot stand.

GC 35.4 Requires More than
    what was Contained in the Letters

[60]

As
    stated in
Sattva
, at para. 57, the interpretation of a written
    contractual provision is grounded in the text and read in light of the entire
    contract. This court can look to the surrounding circumstances in interpreting
    the contract, but they must never be allowed to overwhelm the words of the
    agreement:
Sattva
, at para. 57.

[61]

The
    language used in GC 35.4, interpreted in the context of the rest of the Code,
    leads me to conclude that even though the word detailed is not included in GC
    35.4, the requirement that a contractor submit a claim in writing sufficient to
    enable the Engineer to determine whether the claim is justified cannot be
    interpreted in a manner other than that it must be supported by detailed
    information. Without detailed information, it is difficult to see how the
    Engineer would be able to make a decision as to the validity of a claim. In my
    view, such a decision requires proof that the claim is justified.

[62]

It
    follows that in order to allow the Engineer to determine the validity of the
    $1,437,976 Claim, more was required than the contents of the December 5, 2008
    and March 2, 2009 letters. I say this even taking into consideration the
    application judges implicit finding that the Engineer was intimately familiar
    with the Project.

[63]

The
    two letters provided little if any support for the $1,437,976 Claim. Among
    other things, the letters failed to include information relating to the nature
    and extent of PWCs responsibility for the delay, to address whether
    compensation had already been paid on account of the extra expense or to
    explain whether the extra expense contained in the $1,437,976 Claim fell within
    the classes of expenses compensable under GC 35.5 and GC 49 or GC 50, and, if
    so, in what amount.

[64]

Moreover,
    the two letters were inconsistent and therefore confusing in terms of the
    location where the extra work was said to be required. The letter of December
    5, 2008 referred to delays by the Institution in the start of construction for
    Building E in completion of E yards. The letter of March 2, 2009 mentioned
    Building J and revisions to concrete foundations due to soil conditions and
    consequent additional time required to complete related masonry work. The March
    letter went on to speak to Building A as having been impacted by revisions to
    concrete foundations. Finally, in the March 2, 2009 letter, Ross-Clair returned
    to Building E and the start of construction having been tied into the completion
    of E Yards. The Additional Costs Summary included with this letter provided skeletal
    information listing the amounts attributed to various sub-contractors but no
    breakdown identifying, for example, the costs of labour, plant, and material or
    the amount of the percentage mark-up.

[65]

That
    the Engineer and PWC repeatedly asked Ross-Clair to provide more information to
    enable a determination to be made as to whether either part of the Claim was
    justified further solidifies my conclusion that the $1,437,976 Claim did not
    meet the requirements of GC 35.4. There is nothing in the record that suggests that
    Ross-Clair provided any information in response to these requests prior to the
    delivery of the Knowles Report. The Knowles Report was delivered on May 28,
    2013, over one year and three months after the Final Certificate of Completion
    was issued. By then, it was too late.

[66]

In
    conclusion, the information contained in the letters was lacking in
    specificity, confusing in terms of identifying the parts of the Project
    affected by the delay and accompanied by virtually no information in support of
    the extra work done and the costs associated with any such work. In my view, therefore,
    the application judge erred in ordering the Engineer to render a decision in
    relation to the $1,437,976 Claim.

[67]

For
    completeness, I add that I see no evidence that supports Ross-Clairs submission
    that either PWC or the Engineer acted in bad faith in the course of their
    requests for further information.

DISPOSITION

[68]

Accordingly,
    for the foregoing reasons, I would allow the appeal and set aside the order of
    the application judge. I would dismiss the application and declare that
    Ross-Clairs claim for extra payment is barred by operation of the Contract. I
    would award PWC its costs of the appeal in the agreed-upon amount of $15,000,
    inclusive of disbursements and applicable taxes.

Released: March 14, 2016 (EEG)

Gloria
    Epstein J.A.

I
    agree E.E. Gillese J.A.

I
    agree L.B. Roberts J.A.

[1]
As noted by the application judge, initially, there was confusion as to who
    should be taken to be the Engineer (PWC or NORR Limited). For the purposes of
    the decision below, counsel for PWC accepted that the Engineer was NORR
    Limited.

[2]

As a result of the confusion as to who was the Engineer, Ross-Clair sent
    another letter, identical in substance to the letter of December 5, 2008, to
    PWC on December 18, 2008.

[3]
While this letter notified Ross-Clair of the existence of the claim, no
    information was provided as to quantum. Ross-Clair did not inform PWC of the
    amount, $1,437,976, until a letter dated March 2, 2009.

[4]
As noted by the application judge, there is no letter dated April 2, 2011 in
    the record.

[5]
At times, the application judge confuses the terms notice under GC 35.2 and
    claim under GC 35.3 and 35.4.

[6]
Counsel for the appellant initially challenged this concession on appeal, but
    ultimately resiled from that position and accepted the concession.


COURT OF APPEAL FOR ONTARIO

CITATION: Samuda v. Jarvis George Housing
    Co-operative Inc., 2016 ONCA 200

DATE: 20160309

DOCKET: M45888 (M44957)

Laskin, MacFarland and
    Roberts JJ.A.

BETWEEN

Rosalee Samuda

Moving Party

and

Jarvis George Housing Co-operative Inc.

Responding Party

Rosalee Samuda, acting in person

Bruce D. Woodrow, for the responding party

Heard and released orally: March 4, 2016

ENDORSEMENT

[1]

Ms. Samuda asks to review and set aside the order of Hoy A.C.J.O. who
    refused to extend the time to have Sharpe J.A.s decision reviewed by a panel
    of this court.

[2]

This case has a long history, which culminated in the judgment of Myers
    J. dated March 7, 2014. In his careful and thorough reasons, Myers J. expressed
    sympathy for Ms. Samudas plight but nonetheless found that she owed the Co-op
    approximately $20,000 because of her failure to pay the housing charges she was
    obligated to pay. Myers J. declared Ms. Samudas membership and occupancy
    rights in the Co-op terminated as of October 23, 2013.

[3]

Ms. Samuda appealed Myers J.s decision to the Divisional Court, but
    then did not appear for the hearing of her appeal. It was therefore dismissed
    as abandoned.  In this court she explained that she had health problems which
    prevented her from appearing in the Divisional Court.

[4]

Following the dismissal of her Divisional Court appeal, Ms. Samuda
    sought relief in this court. She had no automatic right to appeal to this court
    and was required to obtain this courts leave. She did not bring a leave motion
    in time and thus sought an extension of time to bring this motion. Sharpe J.A.
    dismissed her motion as he concluded her proposed appeal had no prospect of
    success.

[5]

On her later motion, which is the subject of the proceedings before us,
    Hoy A.C.J.O. came to the same conclusion as Sharpe J.A.

[6]

We have reviewed much of the material Ms. Samuda has filed, including
    the reasons of Myers J.  We come to the same conclusion as did our colleagues.
    Ms. Samudas proposed appeal has no prospect of success. Thus, her motion to
    review Hoy A.C.J.O.s order is dismissed.

[7]

Costs to the responding party in the amount of $5,000, inclusive of
    disbursements and applicable taxes, if demanded.

John Laskin J.A.

J. MacFarland J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Shipman (Re) 2016 ONCA 209

DATE: 20160314

DOCKET: C60595

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

IN THE MATTER OF: James
    Shipman

AN APPEAL UNDER PART XX.1 OF THE
CODE

Meaghan McMahon, for James Shipman

Rochelle Direnfeld, for the Attorney General

Michelle OBonsawin, for the Royal Ottawa Health Care
    Group

Heard and released orally: March 10, 2016

On appeal against the disposition of the Ontario Review
    Board dated, dated May 4, 2015.

ENDORSEMENT

[1]

The appellant appeals the disposition of the Review Board dated May 4,
    2015. Counsel raises two grounds of appeal. The first is an alternative ground
    which is that it was unreasonable for the Board not to order an absolute
    discharge on the basis that the appellant is no longer a significant threat to
    the safety of the public.

[2]

In our view, there is no basis to interfere with the decision of the
    Board on this ground. There was ample evidence that the appellant continues to
    require supervision to ensure that he takes his medication and prevent
    decompensation and relapse into his previous potentially violent and
    threatening behaviour.

[3]

The second ground of appeal is that Boards decision was unreasonable in
    failing to implement its inquisitorial role to ensure from the hospital that it
    had a plan for the timing of the implementation of the 24 hour supervised
    community living placement, given the two previous similar dispositions of the Board.

[4]

We also reject this ground of appeal. The Board did challenge Dr.
    Bradford on the issue of timing for the 24 hour supervised placement in terms
    of when the appellant would be ready, and when a bed would become available.

[5]

As it has turned out, the appellant has not yet been placed into 24 hour
    supervised community care. However, the court has received fresh evidence from
    the hospital that he is next on the waiting list and that a bed is anticipated
    to be available for him in April, 2016 (next month). The appellants next ORB
    hearing is April 4, 2016, when the Board will no doubt receive an up-to-date
    status report.

[6]

The appeal is dismissed.

K. Feldman J.A.

E.E. Gillese J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Singh v.
    1299400 Ontario Ltd., 2016 ONCA 240

DATE: 20160331

DOCKET: C61379 and C61406

Doherty, Cronk and Pepall JJ.A.

BETWEEN

Satbir Singh

Appellant

and

1299400 Ontario Ltd.

Respondent

Satbir Singh, appearing in person

Ralph Swaine, for the respondent

Heard:  March 31, 2016

On appeal from the judgments entered by Justice A. Skarica
    of the Superior Court of Justice on December 17, 2014 and April 16, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The appellant offers no basis upon which we can or should interfere with
    the orders below.  The appellant accepts that the mortgages are valid, that he
    has been in default for over 1½ years and that he has not made any payments in
    that time.  He indicates that there is enough equity in the property to satisfy
    the debts.  That may be.  It is also irrelevant to the respondents right to
    payment of the debt and to assert its rights under the security.

[2]

The appeal is dismissed.

[3]

Costs to the respondent in the amount of $3,000, inclusive of
    disbursements and relevant taxes.