COURT OF APPEAL FOR ONTARIO

CITATION: King v. Ryerson University, 2015 ONCA 648

DATE: 20150925

DOCKET: C60211

Cronk, Hourigan and Benotto JJ.A.

BETWEEN

Justine Annette King

Plaintiff/Appellant

and

Ryerson University and Timothy Sly

Defendants/Respondents

Justine King, acting in person

Ashley Richards, for the respondents

Heard: September 21, 2015

On appeal from the order of Justice Carole Brown of the
    Superior Court of Justice, dated January 27, 2015.

ENDORSEMENT

[1]

This is an appeal from the order of C. Brown J. of the Superior Court of
    Justice, dated January 27, 2015, striking the appellants Fresh As Amended
    Statement of Claim dated August 12, 2014, as amended effective January 28, 2014
    (the Amended Claim), without leave to amend, and dismissing the appellants
    action as against both respondents, in its entirety.

[2]

Having carefully considered the contents of the appellants Amended Claim
    and her arguments on appeal, we conclude that there is no basis upon which to
    interfere with the motion judges order.  Accordingly, this appeal must be
    dismissed.

[3]

We say this for the following reasons.

A.      Claims Against Ryerson University

[4]

Most of the appellants claims against the respondent Ryerson University
    (Ryerson) are framed in breach of contract, negligence and the tort of
    intentional infliction of mental distress.  With respect to these claims, in addition
    to other pleadings deficiencies, the appellant has failed to plead the requisite
    elements of each of these causes of action or material facts sufficient to
    support her claims.

[5]

To the extent that the appellant pleads discriminatory conduct by
    Ryerson or its employees, and seeks damages in respect of such conduct, the
    Supreme Court has confirmed that there is no cause of action in tort at common
    law for discrimination, nor an independently actionable wrong in respect of
    discriminatory conduct for the purpose of awarding punitive damages: see
Seneca
    College of Applied Arts & Technology v. Bhadauria
, [1981] 2 SCR 181,
    at pp. 183 and 195;
Keays v. Honda Canada Inc.
, 2008 SCC 39, at para.
    63.  As a result, where, as here, a person alleges conduct that offends the
    Ontario
Human Rights Code,
a remedy must be sought within the
    statutory scheme of the
Code
itself.  We note that the appellant
    previously initiated a complaint to the Ontario Human Rights Tribunal, seeking
    damages against Ryerson on essentially the same basis as set out in her Amended
    Claim.

[6]

The appellant also alleges educational malpractice by Ryerson.  The
    alleged misconduct by Ryerson principally concerns the improper construction and
    administration of an exam, failure to respond to questions posed by the
    appellant concerning the exam in question, and Ryersons conduct and that of
    its employees in relation to that exam and the appellants grades.

[7]

These are issues relating to Ryersons organization and administration
    of its examination, grading, complaints and oversight programs, policies and practices,
    which fall squarely within its discretion and its internal academic
    decision-making.  In the first instance, resort to the universitys internal
    processes, rather than the courts, is the proper procedure to be followed for
    the resolution of complaints or concerns regarding such matters.  In other
    instances, complaints or concerns about such matters may properly form the
    subject-matter of a judicial review application.

[8]

In this case, the appellant has failed to plead specific facts that
    could demonstrate that Ryersons alleged conduct constituted an intentional
    tort or fell outside the broad margin of discretion enjoyed by the university
    and its professors:
Jaffer v. York University
, 2010 ONCA 654, 268
    O.A.C. 338, at para. 56. Even assuming, without deciding, that a claim based on
    a theory of educational malpractice may be justiciable in a proper case, the
    Amended Claim fails to provide the requisite factual foundation to ground such
    a claim.

[9]

We note, also, the appellants assertion in her factum that the motion
    judge failed to consider the appellants Amended Claim and instead evaluated
    the appellants original statement of claim, which had been struck by order of
    Stinson J. of the Superior Court of Justice, dated June 23, 2014.

[10]

The
    motion judges reasons belie this assertion.  Based on her reasons, it is clear
    that the focus of the motion judges analysis was the appellants Amended Claim.

[11]

For
    all these reasons, we agree with the motion judges ruling striking the Amended
    Claim as against Ryerson and dismissing the appellants action as against it.
    It is plain and obvious that the appellants action as against Ryerson must
    fail.

[12]

We
    also agree that this is not an appropriate case for the granting of further
    leave to amend.  By reason of Stinson J.s order, mentioned above, the
    appellant has already been granted, and taken up, one opportunity to amend her
    pleading.  As we have outlined above, her Amended Claim suffers from multiple pleadings
    defects and fails to allege a reasonable cause of action as against Ryerson.
    There is no basis to believe that further amendments by the appellant would
    yield a proper pleading, with viable causes of action.

B.      Claims Against Timothy
    Sly

[13]

We turn now to the appellants asserted claims against the personal
    respondent, Timothy Sly.  These claims suffer from a fatal flaw: nothing in the
    appellants Amended Claim discloses any conduct by Mr. Sly outside his duties
    and obligations as a Ryerson employee.  Simply put, no sustainable cause of
    action against Mr. Sly in his personal capacity is pleaded.  Accordingly, we
    see no basis on which to disturb the motion judges order striking the Amended
    Claim as against Mr. Sly, without leave to amend, and dismissing her action as
    against him.

C.      Costs Claim

[14]

In
    her factum, the appellant also seeks leave to appeal from the costs award in
    the respondents favour, set out at paragraph 2 of the motion judges order.
    This award was based on the parties out-of-court agreement regarding the
    payment of costs by the appellant and the appropriate quantum of those costs
    ($2,000).  Nothing before this court establishes a foundation for the setting
    aside of a consensual costs award that was incorporated, at the parties request,
    in the motion judges formal order.

[15]

We
    note, in any event, the appellants indication during oral argument before this
    court that she is prepared to pay the costs awarded in respect of the motion.
    Indeed, it appears that she has already offered to do so in discussions with
    the respondents counsel.  The appellant, therefore, did not pursue this ground
    of appeal during the appeal hearing.

D.      Other Comments

[16]

Finally,
    we appreciate that the appellant contends that the motion judge also erred by
    allegedly taking into account unproven facts posited by the respondents in
    their written and oral arguments on the motion.

[17]

We
    disagree.  While the motion judges reasons refer in some places to submissions
    by counsel, they also confirm that her decision and analysis were grounded in
    her consideration of the appellants own Amended Claim.

E.      Disposition

[18]

For
    the reasons given, the appeal is dismissed.  The respondents are entitled to
    their costs of the appeal, if sought, in the total amount of $1,000, inclusive
    of disbursements and all applicable taxes.

E.A. Cronk J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lochner v. Toronto (Police Services), 2015 ONCA 626

DATE: 20150917

DOCKET: C60123

Gillese, Pepall and Lauwers JJ.A.

BETWEEN

Silvano Lochner

Plaintiff (Appellant)

and

Toronto Police Services Board, Detective Alex
    Will (Badge No. 362), and Chief of Police William Blair

Defendants (Respondents)

Silvano Lochner, acting in person

Robert L. Love and Damian Hornich, for the respondents

Heard: September 11, 2015

On appeal from the judgment of Justice James M. Spence of
    the Superior Court of Justice, dated February 12, 2015.

ENDORSEMENT

[1]

On January 30, 2012, Mr. Lochner issued a statement of claim and began
    this action.  In it, he alleges that Det. Will disclosed his criminal record to
    his employer and that disclosure caused his employer to terminate his
    employment.  At para. 26 of his Amended Statement of Claim, Mr. Lochner acknowledges
    that on November 16, 2009, he gave a copy of a memorandum dated February 14,
    2008 (the Memorandum) to the Information and Privacy Commissioner. The
    Memorandum summarized what had taken place in a meeting between representatives
    of Mr. Lochners former employer and Det. Will. The Memorandum indicated that
    Det. Will had disclosed Mr. Lochners criminal convictions to his employer.

[2]

The defendants in this action moved for summary judgment. By judgment
    dated February 12, 2015, the motion judge granted the motion. He found that Mr.
    Lochner learned by November 16, 2009, at the latest, that he had a claim
    against Det. Will and, therefore, Mr. Lochners claim was out of time because
    it had not been brought within the two-year limitation period prescribed by the
Limitations Act, 2002
, S.O. 2002, c. 24, Sch. B.

[3]

Mr. Lochner appeals. He recognizes that in his pleadings he admits
    having had a copy of the Memorandum but submits that he did not discover his claim,
    for the purposes of the limitation period, because the defendants have never
    acknowledged that disclosure of his criminal record to his employer was
    wrongful. He contends that without knowledge of the defendants liability or
    culpability, he did not know that he had a claim against Det. Will, for the
    purposes of the running of the limitation period.

[4]

We do not accept this submission.

[5]

Section 5(1)(a) of the
Limitations Act, 2002
,
reads as
    follows:

5. (1)  A claim is discovered on the earlier of,

(a)     the day on which the person with the claim
    first knew,

(i)      that the
    injury, loss or damage had occurred,

(ii)      that the
    injury, loss or damage was caused by or contributed to by an act or omission,

(iii)     that the act
    or omission was that of the person against whom the claim is made, and

(iv)     that, having
    regard to the nature of the injury, loss or damage, a proceeding would be an
    appropriate means to seek to remedy it;

[6]

Mr. Lochner is the person with the claim. He knew, when his employment
    was terminated, that injury, loss or damage had occurred.  He also knew, no
    later than November 16, 2009, that Det. Will had disclosed his criminal record
    to his employer.  It was the act of disclosing his criminal record to his
    employer which he alleges caused or contributed to his injury, loss or damage.
    Thus, no later than November 16, 2009, the two-year limitation period began to
    run.  Accordingly, the limitation period expired no later than two years
    following November 16, 2009. Mr. Lochner commenced this action on January 30, 2012,
    more than two years after November 16, 2009.  Therefore, the action is out of
    time and there is no genuine issue requiring a trial.

[7]

The fact that Mr. Lochner does not know whether the defendants are
    culpable or liable for the disclosure does not prevent the limitation period
    from running. Knowledge of liability on the part of the injured person is not
    part of discoverability for the purposes of the running of the limitation
    period.  It is the lawsuit itself which is the process by which liability for
    an act is determined.

[8]

For these reasons, the appeal is dismissed. If costs are sought, the
    respondents shall file written submissions within 10 days of the date of
    release of this endorsement and the appellant shall file any response no later
    than 15 days after the date of release of this endorsement.  The written
    submissions shall not exceed two double-spaced typewritten pages in length.

E.E. Gillese J.A.

S.E.
    Pepall J.A.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Marzec (Re), 2015 ONCA 658

DATE: 20150930

DOCKET: C60268

Feldman, MacPherson and Miller JJ.A.

IN THE MATTER OF: Edward Gerald Marzec

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL

CODE

Suzan E. Fraser, for the appellant

Janice Blackburn, for the respondent, the Person in
    Charge of Thunder Bay Regional Health Sciences Centre

Kevin Rawluk, for the respondent, the Attorney General
    of Ontario

Heard: September 11, 2015

On appeal against the disposition of the Ontario Review
    Board dated December 1, 2014.

ENDORSEMENT

A.

OVERVIEW

[1]

The appellant appeals the disposition of the Ontario Review Board dated
    December 1, 2014, with reasons issued December 5, 2014. The appellant asked the
    Board for an absolute discharge. The Board granted the appellant a conditional
    discharge.

[2]

On June 11, 2012, there was an altercation between the appellant and his
    neighbour. Words were exchanged between the two on the appellants property. On
    the appellants account, he felt threatened and went into his house, retrieved
    a pick axe, and chased the neighbour down the street. The appellant swung at
    his neighbour with the axe, but did not make contact. The neighbours wife
    called out that she was going to call the police, at which point the appellant
    returned to his house and waited on his front steps. He surrendered when the
    police arrived.

[3]

At the time of the index offence, the appellant was psychotic and believed
    himself to be under attack by evil spirits.

[4]

The appellant was charged with assault with a weapon contrary to s. 267
    of the
Criminal Code
, R.S.C. 1985, c. C-46. He was found not
    criminally responsible on account of mental disorder on October 3, 2012.

[5]

Since that finding, the appellant has been detained at the Secure
    Forensic Unit of the Thunder Bay Regional Health Sciences Centre (the TBRHSC),
    subject to conditions.

[6]

The appellant appeals the Boards disposition on the basis that it erred
    in failing to grant him an absolute discharge by concluding that he posed a
    significant threat to the safety of the public. The TBRHSC supports the
    appellants submissions.

[7]

The Crown opposed the imposition of an absolute discharge and maintains
    that position on the appeal. It supports the conclusion of the Board that the
    appellant continues to pose a significant threat to the safety of the public,
    which requires that the Board maintain its jurisdiction and deny an absolute
    discharge.

[8]

For the reasons that follow, we find the Boards decision to be
    unreasonable and substitute an absolute discharge.

B.

FACTS

[9]

Following the holding that the appellant was not criminally responsible
    on account of mental disorder for his index offence, the appellant was admitted
    to the TBRHSC on November 6, 2012. The Boards initial disposition was to
    detain the appellant at the Secure Forensic Unit of the TBRHSC with privileges
    in the hospital, its grounds, and in the community.

[10]

On
    November 26, 2013, the Board granted the appellant a conditional discharge,
    which included that: (1) the appellant not attend within 100 metres of his
    neighbours residence; and (2) the appellant report to the TBRHSC on a biweekly
    basis.

[11]

The
    practical effect of the first condition was that the appellant was precluded from
    returning to live in his home. Despite his right to live elsewhere in the
    community, the appellant remained at the TBRHSC.

[12]

The TBRHSC stated that the appellant
    resisted its attempts to resettle him in the community. This appears to be due
    to his preference to live in his own home and his belief that he lacks the
    financial resources to afford alternative accommodation.

C.

THE
NOVEMBER
18, 2014 BOARD
    HEARING

[13]

The
    most recent Board hearing was held on November 18, 2014.

[14]

The Board considered a
risk assessment
    contained in the TBRHSCs report indicating that, in the opinion of the
    appellants treatment team, the appellant does not pose a significant threat
    to public safety although he does suffer from a longstanding, untreated,
    schizophrenic illness and continues to harbour beliefs regarding alleged
    persecution and mistreatment by authorities.

[15]

The TBRHSCs report states that the
    appellant does not participate in hospital programming or activities, but
    regularly utilizes community passes and has done so without incident.

[16]

In addition to the TBRHSCs report, the
    Board was provided with a Risk Assessment Report prepared by Dr. P. Johnston, a
    staff psychologist at the TBRHSC.

[17]

Dr. Johnston predicted that the
    appellant would continue to do well in a stable and semi-structured
    environment where he is exposed to a limited number of stressors and has
    supports available, should he express a need for them. He noted that the
    appellant has limited to no social support available beyond the hospital
    environment.

[18]

He concluded that the appellant is a low-moderate risk of
    future violent offending with low risk of imminent violence, given an ongoing
    structured and supportive environment able to provide regular management and
    support. That conclusion was qualified by a concern for increased risk of physical
    harm to others should he be in an environment without support.

[19]

The Board also heard expert testimony
    from Dr. Sheppard, who is the appellants attending psychiatrist. Dr. Sheppard
    testified that he viewed the index offence as likely being an isolated event
    and that it was speculative to suspect that [the appellant] might act out in a
    harmful manner.

[20]

The hospital recommended an absolute discharge.
The Board, however, concluded that the appellant remains a
    significant threat to the safety of the public.

[21]

The Board concluded that because the
    appellant has not lived in the community for some time, he is untested and
    should live in the community under its jurisdiction before an absolute
    discharge is granted. This was intended to allow for an assessment of the
    degree to which the appellants current stability is a function of the
    structured and supportive hospital environment in which he currently lives.

[22]

Accordingly, the Board
affirmed
    the conditional discharge, but with two amendments: (1) the condition that the
    appellant not attend within 100 metres of his neighbours residence was
    replaced with a non-contact provision; and (2) the reporting requirement was
    increased from biweekly to weekly.

D.

ANALYSIS:

(1)

Standard of Review

[23]

This court can only interfere with the
    Boards decision, according to s. 672.78(1) of the
Criminal Code
, if it is of the opinion that:

1. the decision is unreasonable or
    cannot be supported by the evidence;

2. the decision is based on an error
    of law; or

3.

there was a miscarriage
    of justice.

[24]

The appellant submits that the Boards finding
    that he continues to pose a significant risk is unreasonable.

(2)

Was the Boards Decision Unreasonable?

[25]

The Board is required to determine
    whether releasing the appellant would pose a significant risk to public safety.
    There must be a real risk, and the potential harm must be serious: see
Winko
    v. British Columbia (Forensic Psychiatric Institute)
,
[1999] 2 S.C.R. 625, at paras. 51, 57.

[26]

The appellant seeks an absolute
    discharge. He is supported in this by the TBRHSC. Both rely on the expert
    evidence of Dr. Sheppard and the two risk assessment reports.

[27]

The Board disagrees. It is an expert
    body and is entitled to reject the expert evidence before it. Where the Board
    rejects expert evidence, it must base its decision on the evidence: see
Laberakis
    (Re)
,
2012 ONCA 70, [2012] O.J. No. 373, at para.
    3.

[28]

Both Dr. Sheppard and Dr. Johnston found
    that there would likely be an increased risk of harm to the public if the appellant
    was in an unstructured and unsupported environment in which he might be subject
    to stress. But notwithstanding that the risk would be higher, neither articulated
    the conclusion that an absolute discharge would result in a significant threat to
    public safety. The TBRHSCs report, in fact, articulated the opposite: [t]he
    significant threat threshold is no longer met. It cannot be said at this time
    that, if absolutely discharged, [the appellant] would likely commit a serious
    criminal offence causing physical or psychological harm to others.

[29]

The Boards concern seems to be that because
    the appellant has not yet lived outside of the hospital, he is untested in
    the community. Having him live outside of the hospital would indeed allow for
    the Board to assess the degree to which the appellants hospitalization is
    responsible for his stability.

[30]

Such an approach, however, would erroneously
    place the onus on the appellant to prove that he is not a risk before he is
    entitled to an absolute discharge.

[31]

The current disposition allows the appellant
    to resume living in his home, next to the same neighbours with whom he had the
    initial conflict. The only restrictive measures in place are the requirement
    that he have no contact with his neighbours and that he report to the hospital
    on a weekly basis.

[32]

If the appellant poses a serious risk
    of harm to the public, it is difficult to see how it could be safe to return
    him to his home on these conditions. The Board would essentially be leaving the
    appellants neighbours to protect themselves. The Boards disposition is at
    odds with its reasoning.

[33]

The only reasonable conclusion  one
    that is supported by the totality of the evidence  is that the appellant does
    not pose a significant risk of harm. The Board appears to have ordered a
    conditional discharge out of an abundance of caution. That is not the legal
    test. As per
Winko,

if the appellant
    does not pose a significant risk to the public, the Board must order an
    absolute discharge.

E.

DISPOSITION

[34]

The appeal is allowed, the disposition
    made by the Board dated December 1, 2014 is set aside and an order for the absolute
    discharge of the appellant is substituted.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mirkais Investments Inc. v. Klotz, 2015 ONCA 632

DATE: 20150918

DOCKET: C59832

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Mirkais Investments Inc.

Appellant/ plaintiff

and

Robert A. Klotz

Respondent/defendant

Melvyn Solmon and Jeffrey Radnoff, for the Appellant

Michael R. Kestenberg, for the Respondent

Heard:  September 2, 2015

On appeal from the judgment of Justice F.L. Myers of the Superior
    Court of Justice, dated November 28, 2014, with reasons reported at 2014 ONSC
    6907.

ENDORSEMENT

[1]

The trustee in bankruptcy of the bankrupt, Morris Kaiser, obtained access
    to certain funds totalling almost $1 million.

[2]

The appellant, Mirkais Investments Inc., is owned by Mr. Kaisers
    spouse, Miriam. Mirkais is the assignee of a 1992 General Security Agreement (the
    GSA) signed by Mr. Kaiser in favour of Standard Chartered Bank covering his
    assets. Mirkais claimed to be a secured creditor in Mr. Kaisers bankruptcy and
    sought to recover the entire amount of the funds. It instructed the respondent,
    its counsel, to file a notice of claim with the trustee in bankruptcy, which
    was disallowed. The respondent was instructed to appeal the trustees disallowance,
    but he failed to do so. Mirkais sued him for negligence.

[3]

The motion judge granted the respondents motion for summary judgment
    and dismissed the action on the basis that there was no genuine issue requiring
    a trial and, hence, the action must fail because the appellant could not prove
    that it was a secured creditor and that it had suffered damages as a result of
    the respondents negligence. The appellant appeals that ruling, and seeks leave
    to appeal the costs award made against it by the motion judge.

The Applicable Law

[4]

The motion judge found that in order for the appellant to have a
    security interest in the funds at issue, the funds must form part of the
    collateral described in and secured under the appellants GSA. He noted, at
    para. 6: If the property is part of the collateral secured by the agreement,
    then, under clause 20(1)(b) of the
Personal Property Security Act
,
    R.S.O. 1990, c.P.10 (the
PPSA
), the security interest over the
    collateral must be perfected under the statute in order for it to take priority
    over the interest of the trustee. The motion judge added, at para. 8:

Section 19 of the PPSA requires that in order for a security
    interest to be perfected (and hence trump the priority of a trustee in
    bankruptcy) it must have first "attached". Subsection 11(2) of the
    PPSA provides that, among the requirements for a security interest to attach
    the debtor must have rights in the collateral.

The appellant accepts the correctness of these
    statements. The contested issues are whether the collateral in question is
    covered by the GSA and whether the appellants security interest was perfected
    as required under the
PPSA
.

The Funds

[5]

The funds came to the trustee in three tranches. The first tranche was
    the proceeds of a settlement of litigation commenced by the trustee. The second
    tranche was $100,000 paid to the trustee as consideration for the trustees agreement
    not to intervene in in an unidentified piece of litigation. The third tranche
    was $50,000 paid to the trustee to facilitate the discharge of the bankrupt. The
    appellant pursues the first and second tranches, and abandoned any claim for relief
    in respect of the third on appeal.

[6]

The first tranche was described by the motion judge, at para. 12, as the
    proceeds of a settlement of litigation commenced by the trustee, supported by
    two funding creditors, against Cecil Bergman, on the basis that Mr. Bergman was
    allegedly a front for Mr. Kaiser who was the real owner of a 76-unit
    townhouse project in Brampton, Ontario. The yield was about $835,000 and was
    paid to the creditors (and their lawyers in trust) pursuant to the order of C.
    Campbell J. of the Superior Court of Justice, dated November 23, 2012.

[7]

The appellant argues that the first tranche properly falls under the
    heading Proceeds in clause (xii) of the GSAs description of the secured collateral,
    as the proceeds of the sale of Real Property described in clause (viii). It
    argues that the second tranche is a chose-in-action that comes under
    Intangibles described in clause (vii) of the GSA.

[8]

The motion judges factual findings belie these arguments. In
    particular, the motion judge made the following key factual finding, amply
    explained, at para. 11:

Mr. and Mrs. Kaiser were present in court for this motion.
    Neither gave any evidence to establish that the funds in the three tranches set
    out above belonged to Morris Kaiser or were money due to him or over which he
    had any rights or causes of action. In fact, throughout the bankruptcy and its
    various proceedings, Mr. Kaiser and his friends and colleagues through whom
    money flowed to Mr. Kaiser denied that any money or assets belonged to Mr.
    Kaiser.

[9]

The motion judge added, at para. 17:

The only evidence at all concerning whether Morris Kaiser owned
    or had rights in the funds are his own denials commencing in his sworn
    Statement of Affairs and continuing throughout the bankruptcy proceeding and
    the related litigation proceedings and Mrs. Kaiser's evidence that he had and
    has no assets. The plaintiff [Mirkais] simply failed to put forward any
    evidence contradicting the evidence of the Kaisers to raise a triable issue on
    whether Morris Kaiser had rights in or over the three tranches of funds. There
    is no basis for it [Mirkais] to say that even if it had a security interest,
    its interest would have entitled it to receive the funds to which it refers.

[10]

Indeed,
    the obdurate position of Mr. and Mrs. Kaiser in the Brampton townhouse
    litigation that underpinned the first tranche was that Mr. Kaiser did not have
    an interest in the property. Mr. Kaiser made no admission or assertion in the
    settlement agreement, which he signed, that he had any interest in the
    property.  Nor was there such a finding in the consent court order approving
    the settlement and the payout of the funds.

[11]

The
    motion judge concluded that the appellants security interest did not attach as
    a matter of law because the appellant had not established that Mr. Kaiser had
    any interest in or right to the collateral. Accordingly, the appellant did not have
    a prior perfected security interest in the funds. Without an enforceable
    security interest, the appellant was unable to prove damages, which is a
    constituent element of the cause of action of negligence.

[12]

The
    same logic applies to the second tranche of funds, consisting of monies paid to
    the trustee for not intervening in active litigati
on.
The trustee, who was investigating sources
    of assets of the bankrupt, brought a motion in an appeal of a judgment against
    Mr. Kaiser. As the motion judge noted, there was no evidence that the money
    paid to the trustee was money in which Mr. Kaiser had any rights. The appellant
    led no evidence that Mr. Kaiser owned the money. Doing so would have been
    inconsistent with the position taken by both Mr. Kaiser and his wife in the
    bankruptcy. Accordingly,
Mr. Kaiser had no conceivable interest
    in these funds to which the GSA could apply.  Nor did he assert such an
    interest in the bankruptcy.  To the contrary, he denied having any assets of
    any kind.

[13]

The
    appellant has not demonstrated that the motion judge made a legal error in his
    reasoning, or a palpable and overriding error of fact.  Nor is there any fresh
    evidence before this court indicating that Mr. Kaiser had any interest in any
    of the funds at issue or any viable claim to any right in respect of those
    funds.

The Lost Chance Submission

[14]

The
    appellant argues before this court, for the first time, that, but for the
    respondents negligence, the appellant would not have lost the chance to prove
    the Secured Claim and to be in a position to participate to claim, negotiate
    for and share in proceeds recovered by the trustee in bankruptcy. The
    appellant argues that the value of this lost chance can underpin the negligence
    claim.

[15]

A
    loss of chance as the basis for proving damages in support of a negligence
    claim has support in the caselaw. See, in this court, for example,
Folland
    v. Reardon
, [2005] O.J. No. 216.

[16]

In
    our view, there is no genuine issue requiring a trial in respect of the
    appellants lost chance claim. The appellant did not clearly invoke the lost
    chance principle in its statement of claim, nor did it plead material facts
    sufficient to support this claim.  Further, as we have said, this argument was
    not advanced before the motion judge.  Instead, the appellant seeks on appeal
    to reposition his case to ground the relief sought on this new basis.  As the
    respondents counsel points out, if this argument had been properly advanced at
    an earlier stage, the evidence before the motion judge might have been
    different and the bankruptcy itself might have unfolded in a different fashion.

[17]

These
    concerns are sufficient to require rejection of this ground of appeal.  To
    permit the appellant to advance this argument now would result in fundamental
    unfairness.

[18]

There
    is a further, important consideration.  As we have emphasized, both Mr. Kaiser
    and Mrs. Kaiser  the principal of the appellant  maintained throughout that
    Mr. Kaiser had no assets of any kind.  It is inconceivable that the appellant
    corporation could successfully have taken a position in the bankruptcy that was
    completely at odds with the sworn evidence of its principal. And, as we have
    said, the evidence on the motion was not developed with that possibility in
    view, and it would be unfair for this court to proceed on that basis.  Simply
    put, on the record before this court, there is no evidence that the appellant
    lost the chance of an advantage of some real substantial monetary value. The
    appellant, therefore, failed to establish the requisite causation requirement
    in respect of his negligence claim against the respondent.

[19]

We
    reject this ground of appeal.

Leave to Appeal Costs

[20]

The
    appellant argues that the motion judges costs award, at about $95,000, was
    grossly disproportionate for a motion that took less than a day. We observe,
    however, that the award was for the entire action. The motion judge instructed
    himself properly as to the relevant principles, at para.19. He pointed out that
    the exposure was large, and the circumstances unusual and complex. The motion
    judge noted, at para. 20, that it was: Mr. Kestenberg's effort and industry in
    analyzing and preparing his client's case that allowed the issues to be
    rationalized and reduced to the one factual question underlying two legal
    grounds of resolution.

[21]

The
    motion judges discretionary costs award is neither plainly wrong nor tainted
    by an error in principle.  Accordingly, while we grant leave to appeal costs, we
    see no basis for appellate interference with the motion judges costs award.

Disposition

[22]

The
    appeal is dismissed, with costs payable to the respondent in the all-inclusive amount
    of $15,000.

E.A.
    Cronk J.A.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mitchinson v. Baker, 2015 ONCA 623

DATE: 20150917

DOCKET: C59535

Gillese, Pepall and Benotto JJ.A.

BETWEEN

Elisabeth Eveline Mitchinson and Timothy G.
    Mitchinson

Plaintiffs (Appellants)

and

David Baker and Lawyers Professional Indemnity
    Company

Defendants (Respondents)

Elisabeth Mitchinson and Timothy Mitchinson, acting in
    person

Adam J. Huff, for the respondent Lawyers Professional
    Indemnity Company

Louis C. Sokolov and Krishana Persaud, for the
    respondent David Baker

Heard: September 9, 2015

On appeal from the order of Justice James A. Ramsay of
    the Superior Court of Justice, dated September 23, 2014.

By the
    Court
:

OVERVIEW

[1]

David Baker (the respondent) represented Elisabeth Mitchinson in a
    human rights complaint that she brought relating to the termination of her
    employment. He settled the complaint on terms that were favourable to Ms.
    Mitchinson. Ms. Mitchinson, however, was unhappy with the respondents fee,
    which was more than the estimate that he had given to her. As a result, she
    fired him before the settlement was finalized and then took steps to have his
    account assessed.  In the following two years, Ms. Mitchinson and her husband
    (the appellants) commenced a number of proceedings relating to the
    respondents account.

[2]

The basis for the action which gives rise to this appeal is the
    appellants allegation that the respondent agreed to cap his fee at $30,000 but
    subsequently charged Ms. Mitchinson more than that amount. The defendants in
    this proceeding are the respondent and the Lawyers Professional Indemnity
    Company (LPIC).

[3]

LPIC brought a motion to strike the statement of claim against it on the
    basis that it disclosed no reasonable cause of action.

[4]

The respondent moved to have the action dismissed as against him on the
    basis that it was frivolous, vexatious, and an abuse of process of the court.

[5]

The motions judge granted both motions.

[6]

The appellants appeal.

[7]

For the reasons that follow, we see no basis for interfering with the
    decision below.

ANALYSIS

(1)

LPIC

[8]

In their claim against LPIC, the appellants asserted that LPIC was aware
    that the respondent had committed fraudulent misrepresentation when he mis-estimated
    his legal fees but, nonetheless, LPIC chose to represent the respondent in the
    various legal proceedings which they had commenced. Thus, the appellants alleged,
    LPIC was an accessory after the fact to the respondents alleged fraudulent
    misrepresentation.

[9]

The motions judge correctly found that no duty of care exists between
    an insurer and a party adverse in interest to its insured and that no action
    lies against the lawyers acting for ones adversary in litigation. His reasons
    also explain why the allegations in the appellants statement of claim did not
    disclose a reasonable cause of action in respect of conspiracy, intentional
    infliction of mental distress, abuse of process, or accessory after the fact. We
    see no error in the motions judges reasons or result in respect of these
    various alleged causes of action.

[10]

The
    appellants also submitted that the motions judge improperly considered the
    evidence when he decided the LPIC motion.  We do not agree.

[11]

Under the heading Pleadings Disclosing no Reasonable
    Cause of Action, at page 8 of his reasons, the motions judge stated: This
    motion is decided on the pleadings alone.  A review of the motions judges
    reasons show that he did, indeed, decide LPICs motion based only on the
    pleadings. For example, when dealing with the appellants submission that LPIC
    was liable on the basis of conspiracy, the motions judge noted that conspiracy
    requires an intention to cause harm to a person and that no such intention was
    pleaded or could be inferred from the acts pleaded.

(2)

The Respondent

[12]

The
    appellants are correct that the motions judge considered evidence when he decided
    the respondents motion. However, the motions judge made no error in doing so, given
    that the respondents motion was brought under rules 21.01(3)(d) and 25.11 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[13]

The
    appellants submit that the motions judge used the wrong test when deciding
    whether their action was an abuse of process. They rely on
Metrick v. Deeb
,
    2003 CanLII 804 (ON CA) for this submission.

[14]

The
    legal test set out in
Metrick
does not apply to the respondents
    motion.  The test articulated in
Metrick
is for the tort of abuse of
    process.  The respondents motion is based not on the
tort
of abuse of
    process but on the
doctrine
of abuse of process.  Those two matters are
    fundamentally different in law and each has its own legal requirements.

[15]

The
    Supreme Court of Canada decision in
Toronto (City) v. C.U.P.E., Local 79
, 2003 SCC 63,

[2003] 3 S.C.R. 77,
    at paras. 35-53, explains that the doctrine of abuse of process is
    discretionary and not confined to set categories. The general purpose of the
    doctrine is to bar proceedings that are inconsistent with public policy
    considerations such as finality, judicial economy, consistency of results, and
    the integrity of the justice system. The motions judge was applying these
    principles when he found, at page 6 of his reasons, that this action, as against
    the respondent, was an abuse of process.  He found that the action had been
    brought not to vindicate a wrong suffered but to provide leverage in another
    proceeding: the appellants application for assessment of the respondents
    account.

[16]

The
    motions judge also found that the allegation of fraudulent misrepresentation
    could not succeed because, among other things, an estimate of fees does not
    amount to a representation of fact or a promise and no reasonable person could
    find that the respondent intended to mislead when he gave an estimate of his fees.
    We do not see an error in this determination. In reaching this conclusion, it
    is important to recognize two things.  First, the motions judges determination
    that the allegation of fraudulent misrepresentation could not succeed was made
    as part of the respondents abuse of process motion.  Consequently, as
    previously explained, the motions judge was entitled to consider evidence in
    making that determination.  Second, and in any event, the appellants pleadings
    acknowledge that the quoted fee was an estimate only.

[17]

The
    appellants also submitted that the motions judge erred in his treatment of
    their request to admit.  The request to admit was not part of the record before
    us and, therefore, cannot properly be considered on this appeal. In any event,
    however, LPIC responded to the request to admit and denied the allegations, and
    the respondent filed his affidavit in response to the request to admit, which affidavit
    was effectively a denial.

[18]

Finally,
    we do not accept the appellants claim that the motions judge was biased nor
    did the record reflect any basis for a reasonable apprehension of bias. A
    review of the transcript shows that the motions judges interventions
    including his responses such as enough, enough, enough, enough and [y]oure
    not helping yourself by saying that  were aimed at controlling the court
    process and helping the parties to focus on matters of relevance to the
    motions.  They do not leave the impression that the motions judge lacked an
    impartial mind when deciding the motions.

DISPOSITION

[19]

Accordingly,
    the appeal is dismissed with costs to the respondent and to LPIC fixed at
    $6,500 and $3,500 respectively.

Released: September 17, 2015 (E.E.G.)

E.E. Gillese
    J.A.

S.E. Pepall J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Musyoki v.
    Geertsema, 2015 ONCA 643

DATE: 20150922

DOCKET: C60003

Laskin, MacPherson and MacFarland JJ.A.

BETWEEN

Francis Ngau Musyoki

Plaintiff

(Appellant)

and

Robert
    William Geertsema, Barbara Joyce Geerstema, and

Greenhill
    Produce (Thamesville) Ltd.

Defendants

(Respondents)

Francis Ngau Musyoki, acting in person

Thomas M. Conway, for the respondents

Heard and released orally:  September 18, 2015

On appeal from the judgment of Justice Marc A. Garson of
    the Superior Court of Justice, dated January 6, 2015.

ENDORSEMENT

[1]

The appellants application to the Lower Thames Valley Conservation
    Authority before closing, for a permit to
inter alia
, repair the
    easement roadway and for shoreline repairs makes it clear that he was, at that
    time, fully aware of any overuse of the easement.  He saw it and knew the use
    being made of it at the time.

[2]

There was no representation made in the Agreement of Purchase and Sale,
    only an acknowledgement by him of the fact of an easement and its use.

[3]

The motion judge found there was no misrepresentation by the defendant
    vendors. That finding is supported in the evidence and is entitled to deference
    in this court.

[4]

The allegations in the amended statement of claim are no more than that
    - mere allegations. There was no evidence to support the claims of
    misrepresentation.

[5]

This was a proper case for the motion judge to grant summary judgment.
    The appellant failed to adduce any evidence to support his claims. Indeed the
    record overwhelmingly favours the respondent vendors.

[6]

Further, the appellant failed to provide any evidence of damage caused
    by the defendant vendors, and at para. 275 of his affidavit dealing with the
    limitation defence, he states that the damage to the property occurred after he
    acquired title to the property.

[7]

Any claims the appellant might have are against Legros and/or his
    solicitor and as he has told us, he has ongoing claims against them.

[8]

The appeal is dismissed.

[9]

Costs to the respondents fixed in the sum of $4,500 inclusive of
    disbursements and HST.

John
    Laskin J.A.

J.
    C. MacPherson J.A.

J.
    MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Olumide v. Ontario, 2015 ONCA 651

DATE: 20150925

DOCKET: M44527 (M43691)

Gillese, Tulloch and Roberts JJ.A.

BETWEEN

Ade Olumide

Appellant/Moving Party

and

Her Majesty the Queen in right of the Province of
    Ontario (the Crown)
and Metrolinx

Respondents

Ade Olumide, in person, Moving Party/Appellant

Domenic Polla, for the Respondent, Her Majesty the Queen
    in right of the Province of Ontario

John Mather, for the Respondent, Metrolinx

Heard:  September 23, 2015

ENDORSEMENT

[1]

Mr. Olumide brings this motion to
    vary the November 7, 2014 order of a panel of this court.   As part of the
    relief claimed on this motion, he also requests that he be granted leave to
    issue a statement of claim to seek constitutional remedies.
[1]

[2]

Rule 61.16 (6.1) of the
Rules
    of Civil Procedure
provides that subject to rules 37.14 and 59.06, an order
    or a decision of a panel of an appellate court may not be set aside or varied
    under these rules.

[3]

There is no basis to set aside or
    vary this courts November 7, 2014 order under rules 59.06 or 37.14 or
    otherwise:  there is no evidence of any fraud or mistake, or of any procedural
    unfairness to Mr. Olumide, nor are there any new facts arising that Mr. Olumide
    could not have discovered and put before the panel of this court on his
    application for leave to appeal:  see
Mujagic v. Kamps
, [2015] O.J. No.
    2578 (C.A.), at paras. 8 and 11.

[4]

The respondents submit that this
    court should also dismiss Mr. Olumides motion because it is frivolous,
    vexatious or otherwise an abuse of process, and that he should be prohibited
    from bringing any further motions, appeals or other proceedings without leave
    of this court.

[5]

We agree that Mr. Olumides
    present motion is an abuse of process, frivolous and vexatious.

[6]

Mr. Olumides present motion is
    the latest in a long series of unsuccessful motions and appeals brought by Mr.
    Olumide against the TTC and Metrolinx.  They all relate to Mr. Olumides
    objection to the manner in which the TTC and Metrolinx have instituted the
    Presto Card system for public transportation in Ontario.  Except for minor
    procedural relief and restoring his abandoned application for leave to appeal,
    Mr. Olumides motions and appeals were devoid of merit and dismissed.

[7]

Moreover, Mr. Olumide requests
    constitutional remedies, judicial notice of facts, and declaratory relief that
    this court has no jurisdiction to order or that he has no standing to seek.  In
    essence, Mr. Olumide is attempting to re-litigate previous proceedings in which
    he was unsuccessful and to bring a collateral attack on court orders that went
    against him.

[8]

Accordingly, Mr. Olumide is
    prohibited, without leave of this court, from bringing any further proceedings
    in this court, including any motion or appeal, against either or both of these
    respondents.

DISPOSITION

[9]

The motion is dismissed with costs
    to the respondent, Her Majesty the Queen in right of the Province of Ontario,
    fixed at $1,000.00, all inclusive.

E.E. Gillese J.A.

M.H. Tulloch J.A.

L. B. Roberts J.A.

[1]

Mr. Olumide did not pursue his appeal from the
    April 15, 2015 costs order of Labrosse J.  On August 17, 2015, he filed a
    notice of abandonment of this appeal under court file numbers
C60447 and
    C60477.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Akintunde, 2015 ONCA 597

DATE: 20150904

DOCKET: C57743

Blair, Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Akintunde

Appellant

George Akintude, in person

Matthew Gourlay, duty counsel

Vanita Goela, for the respondent

Heard:  February 11, 2015

On appeal from the conviction entered by Justice Kofi Barnes of
    the Superior Court of Justice, dated June 1, 2013, sitting with a jury, and
    from the sentence imposed on August 16, 2013.

Tulloch J.A.:

A.

Introduction

[1]

This matter came before us as an inmate appeal in which the appellant
    raised a number of grounds. At the hearing, the appeal against the conviction
    was abandoned and the appellant argued the sentencing matter.

[2]

The sentence appeal raises a discrete issue. The issue is whether an
    accused who has consented to the revocation of his bail and who does not bring
    a show cause hearing is disentitled from enhanced credit for pre-sentence
    custody by virtue of s. 719(3.1) of the
Criminal Code
, R.S.C., 1985,
    c. C-46. To answer this question, I will examine what it means for an accused
    to have been detained in custody under s. 524(8) of the
Criminal Code
.

[3]

Section 719(3.1) provides that an accused who has been detained in
    custody under s. 524(8) of the
Criminal Code
is not entitled to 1.5 to
    1 credit for time spent in pre-sentence custody. The relevant part of s. 524(8)
    is that when a judge finds an accused has contravened a term of his
    recognizance or committed an indictable offence while on release, the judge
    shall cancel the accuseds form of release and order the accused detained in
    custody. This will occur unless the accused shows cause as to why he or she
    should not be detained.

[4]

The appellant breached a condition of his release. As a result, his bail
    was cancelled. He did not request a show cause hearing, and was detained until
    sentencing. The sentencing judge concluded that the appellant was detained under
    s. 524(8). He applied s. 719(3.1) and held the appellant was not entitled to
    1.5 to 1 credit for the period he spent in custody following the revocation of
    his bail.

[5]

The appellant argues the sentencing judge erred in concluding that he
    was ineligible for 1.5 to 1 credit. He argues that to be detained under s.
    524(8), a judge must order the accused detained after a show cause hearing and
    that a cancellation of bail alone does not qualify. It is my view that the
    sentencing judge did not err. The appellant was not entitled to 1.5 to 1 credit
    because he was detained under s. 524(8). Accordingly, I would dismiss the
    appeal for the reasons below.

B.

Facts

[6]

The appellant, George Akintunde, was charged with importing heroin,
    conspiracy to import heroin, and two counts of possession of heroin for the
    purpose of trafficking. His wife was a co-accused. The appellant was prohibited
    from having contact with his wife by the terms of his recognizance. The
    appellant was convicted for breach of recognizance and his bail was revoked
    after being in contact his wife.

[7]

The appellant consented to his detention. No show cause hearing was
    conducted, and he remained in custody until sentencing. The appellant was
    convicted on the importing and possession counts.

[8]

At sentencing, the appellants eligibility for enhanced credit for
    certain periods of his pre-sentence custody was at issue. The period the
    appellant spent in custody prior to sentencing falls into four categories:

1. The period prior to the breach of
    recognizance;

2. The sentence for the breach of
    recognizance;

3. The period following the
    cancellation of his bail; and

4. The period
    following his conviction and prior to sentencing.

[9]

Defence counsel requested that the appellant be given 1.5 to 1 credit
    for the entire period of pre-sentence custody. The Crown argued the appellant
    was not entitled to 1.5 to 1 credit for the period following the cancellation
    of his bail and before his conviction because he was detained under s. 524(8)
    of the
Criminal Code
and therefore fell into one of the exclusions set
    out in s. 719(3.1).

[10]

The
    Crown had argued that the appellant was not in a neutral position simply
    because he chose to remain in custody and not to seek bail. He was in custody
    as a result of his own breach, and was not entitled to obtain the benefit of
    enhanced credit simply because he had not applied for bail, when he knew that
    in any event it was unlikely he would be successful.

[11]

The
    sentencing judge accepted the Crowns submission that the appellant was
    detained under s. 524(8) of the
Criminal Code
. The appellant was
    therefore not eligible for enhanced credit for the period following the
    cancellation of his bail and prior to his conviction.

[12]

The
    sentencing judge gave the appellant 1.5 to 1 credit for the period before his
    bail was revoked, and for the period lasting from his conviction until
    sentencing. The judge stated that this period totalled 95 days, and applied a
    credit of 145.5 days. He then credited the appellant for the remaining time,
    266 days, on a 1 to 1 basis. The total pre-sentence credit awarded to the
    appellant was 411 days.

[13]

The
    judge sentenced the appellant to eight years on the importation charge,
    consecutive to a four year sentence for possession for the purpose of
    trafficking. Including the credit for pre-sentence custody, the appellants
    total sentence was ten years, ten months and nineteen days.

C.

The Relevant statutory provisions

[14]

In
    2009, Parliament passed the
Truth in Sentencing Act
, S.C. 2009, c. 29
    (
TISA
), which amended the
Criminal Code
to cap credit for
    pre-sentence custody at a maximum of 1.5 days for each day spent in custody.
    Section 719(3.1) of the
Criminal Code
provides that if the
    circumstances justify it, the maximum credit a judge may grant for pre-sentence
    custody is 1.5 to 1.

[15]

Sections
    719(3) and 719(3.1) state:

719. (3) In determining the
    sentence to be imposed on a person convicted of an offence, a court may take
    into account any time spent in custody by the person as a result of the offence
    but the court shall limit any credit for that time to a maximum of one day for
    each day spent in custody.

(3.1) Despite subsection (3), if
    the circumstances justify it, the maximum is one and one-half days for each day
    spent in custody unless the reason for detaining the person in custody was
    stated in the record under subsection 515(9.1) or the person was detained in
    custody under subsection 524(4) or (8).

[16]

Section
    719(3.1) imposes limitations on when a court may grant 1.5 to 1 credit. First,
    enhanced credit will not be available if the accused was detained in custody
    due to his or her previous criminal convictions and the judge indicated as much
    on the record under s. 515(9.1). This will be referred to as the criminal
    record exclusion.

[17]

Enhanced
    credit will also be unavailable if the person was detained in custody under
    subsection 524(4) or (8). Generally, persons detained in custody under s.
    524(4) or (8) are persons who have committed indictable offences while out on
    release or who have breached the conditions of their release. These exclusions
    are very similar, though they involve different procedures.

[18]

The
    exclusion relating to s. 524
(8) is at issue here, and will be
    referred to as the misconduct on release exclusion. Section 524(8) reads:

524. (8) Where an accused
    described in subsection (3), other than an accused to
whom
paragraph (
a
) of that subsection applies, is
    taken before the justice and the justice finds

(
a
) that
    the accused has contravened or had been about to
contravene
his summons, appearance notice, promise to appear, undertaking or
    recognizance, or

(
b
) that
    there are reasonable grounds to believe that the accused has committed an
    indictable offence after any summons, appearance notice, promise to appear,
    undertaking or recognizance was issued or given to him or entered into by him,

he shall cancel the summons, appearance
    notice, promise to appear, undertaking or recognizance and order that the
    accused be detained in custody unless the accused, having been given a
    reasonable opportunity to do so, shows cause why his detention in custody is
    not justified within the meaning of subsection 515(10).

This section applies when an accused has
    been arrested under a warrant or by a peace officer in certain circumstances,
    and is taken before a justice for a hearing.

[19]

Prior
    to these amendments, the
Criminal Code
did not impose any restrictions
    on enhanced credit. Offenders were generally given enhanced credit for two
    reasons: (1) pre-sentence custody is quantitatively more onerous than
    post-sentence custody because legislative provisions for parole and early release
    eligibility do not account for pre-sentence custody; and (2) pre-sentence
    custody is qualitatively more onerous than post-sentence custody because remand
    centres do not offer the same educational or rehabilitative programs and are
    often overcrowded: see
R. v.

Summers
, 2014 SCC 26, [2014] 1
    S.C.R. 575, at paras. 23-29.

D.

The Parties Positions

[20]

The
    appellant submits that for an accused to be detained in custody under s.
    524(8), two steps must be met: (1) an accuseds prior form of release must be
    cancelled; and (2) the justice must order the accused be detained in custody.
    The accused is not detained under s. 524(8), according to the appellant, unless
    the accused has brought and failed at a show cause application because no
    separate order is issued until after such an application.

[21]

The
    appellant relies on
R. v. McDougall
, 2014 MBPC 35, 307 Man. R. (2d)
    303, leave to appeal to M.B.C.A. refused, 2014 MBCA 95, 310 Man. R. (2d) 187, to
    make this argument. I will refer to the appellants suggested interpretation as
    the
McDougall
interpretation.

[22]

The
    Crown relies on a conflicting decision from the Court of Appeal for Yukon,
R.
    v. Chambers
, 2014 YKCA 13, 316 C.C.C. (3d) 44, leave to appeal refused,
    [2014] S.C.C.A. No. 53. I will refer to this interpretation as the
Chambers
interpretation.

[23]

I
    would note that neither the sentencing judge in
McDougall
nor the
    parties to this appeal had the benefit of the Manitoba Court of Appeals
    reasons in
R. v. Ibrahim
, 2015 MBCA 62, [2015] M.J. No. 172.

E.

Discussion

[24]

The
    appellants argument requires this court to interpret both ss. 719(3.1) and
    524(8). As mentioned, the main issue here is what it means for an accused to
    have been detained in custody under s. 524(8). Does this happen automatically
    when a prior form of release is cancelled under the circumstances described in
    that section, or is a failed show cause hearing required?

[25]

In
    my view, the appellant was detained in custody under s. 524(8) even though he
    effectively consented to his detention. Below, I examine the text of ss.
    719(3.1) and 524(8), the relationship between the criminal record exclusion and
    the misconduct on release exclusion, and Parliaments intention in enacting the
TISA
. I then address which interpretation of the provisions is more
    consistent with the Supreme Court of Canadas decision in
Summers
.

(1)

Interpretation of Sections 719(3.1) and 524(8)

[26]

The
    modern approach to the interpretation of statutes has been set out by the
    Supreme Court of Canada on many occasions, and was articulated by Elmer
    Driedger in
Construction of Statutes
, 2nd ed. (Toronto: Butterworths, 1983):

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

(a)

The Words of the Act in Context and in their Grammatical and Ordinary
    Sense

[27]

The
    operative words in s. 719(3.1) are detained in custody under s. 524(8). To
    determine what is required for an accused to be detained in custody under
    that section, it is necessary to interpret both sections.

[28]

In
McDougall
, the sentencing judge held that in Manitoba, it is common
    practice for the revocation of bail and an order of detention to be separate
    steps. An order of detention occurs after a show cause hearing. She concluded
    that both steps are required for an individual to be detained in custody under
    s. 524(8).

[29]

The
    appellant takes up the reasoning in
McDougall
. He admits that when his
    bail was revoked pursuant to s. 524(8), he was, practically speaking, detained.
    The appellant argues, however, that because he never requested a show cause
    hearing, and was not ordered to be detained after such a hearing, he has not
    been detained under s. 524(8). He submits that the process of detaining an
    accused under that section involves two steps: first, the accuseds bail is
    revoked, and second, an order is made detaining the accused. According to the
    appellant, an order detaining the accused does not issue if the accused
    consents to his or her detention. He suggests that if both the revocation and a
    detention order have not been issued, an accused is not detained under s.
    524(8).

[30]

I
    reject this argument.

[31]

In
    my view, the appellants contention that a separate detention order made
    following a show cause hearing is required ignores the logical implication of
    proceedings under s. 524(8) and the ordinary meaning of s. 719(3.1). His focus
    on a detention order is misplaced.

[32]

Section
    524(8) provides statutory authority for the cancellation of an accuseds prior
    form of release when the accused has committed an indictable offence or
    breached the terms of his or her release. When the accuseds prior form of
    release is cancelled, he or she will be automatically detained  a function of
    the reverse onus provided for in s. 524(8). That detention is provided for in
    and authorized by s. 524(8).

[33]

Section
    719(3.1) refers only to an accused who has been detained in custody under s.
    524(8). It does not require that an accused be ordered detained in custody
    under s. 524(8).

[34]

In
    my view, because the appellants prior form of release was cancelled under s.
    524(8)  and he was detained as a result  he was detained under s. 524(8).
    Whether a separate order was issued at the time of the cancellation is, in my
    view, of no consequence given the logical consequences of proceeding under s.
    524(8) and the ordinary meaning of s. 719(3.1).

[35]

This
    issue was recently considered by the Manitoba Court of Appeal in
Ibrahim
.
    The accused in that case had consented to the revocation of all of his prior
    forms of release and did not apply for judicial interim release. At sentencing,
    he was credited for pre-sentence custody on a 1.5 to 1 basis. On appeal, the
    court held that the sentencing judge had erred in finding that an order of
    detention pursuant to s. 524(8) could not be made absent a show cause hearing.

[36]

Cameron
    J.A. explained, at para. 7, cancellation of a prior order of judicial interim
    release necessitates, by operation of law, an order of detention. Following an
    order of detention, an accused may choose to show cause why his or her release
    is justified on a reverse onus basis.

[37]

At
    para. 43, the court further held, a plain reading of s. 524(8) indicates that
    an order of detention is mandatory upon cancellation of a recognizance. This
    interpretation of the provision was supported by the grammatical structure of
    the statute, the historical consideration of the legislation as well as
    academic interpretation of the section, and was consistent with the overall
    provisions for judicial interim release found in the
Code
: see paras 43-52.

[38]

The
    Manitoba Court of Appeal also cited the Court of Appeal for Yukon decision in
Chambers
. Mr. Chambers had consented to his remand after his prior form of
    release was revoked. In that case, Bauman C.J.B.C. similarly noted that s.
    719(3.1) does not require an express

order

of detention under
    s. 524(8) after a show cause hearing, but rather that an accused be detained
    in custody under that section (at para. 52). Chief Justice Bauman questioned that
    if Mr. Chambers was not detained under that section, by what authority was he
    detained? (at para. 51). At para. 59 of his reasons, he accepted the Crowns
    submission as follows:

Once the prosecution establishes that the statutory
    preconditions are met, the presiding justice must cancel the existing release
    and the accused is detained. The effect of a revocation of bail is immediate
    no further order of the Court is required for the accused to be detained. This
    is because the revocation of bail under section 524(8), by itself, also
    reverses the onus and creates a presumption that the accused remain in custody.
    Unless and until the accused makes a successful application, he is detained
    under section 524(8) of the
Criminal Code
. At any point after the
    revocation of the prior release, the accused may be given a reasonable
    opportunity to show cause why his or her detention is not justified. The common
    practice of consenting to remand in these circumstances is only the deferral
    of the right, which may be exercised at any time, to show cause. Upon cause
    being shown, the presiding justice may make a further order under section
    524(8) of the
Criminal Code
to detain the accused or release him under
    suitable conditions. Section 719(3.1) of the
Criminal Code
excludes
    from a person detained under section 524(8) and not ordered detained under
    the section.

[39]

I
    agree with this reasoning. Section 524(8) provides the authority for the
    cancellation of an accuseds bail once certain preconditions are met. An
    accused can be detained under that section either as a result of the revocation
    of his or her prior form of release or, subsequently, as a result of an order
    made following a show cause hearing. In both cases, s. 524(8) provides the authority
    for the detention. Both types of detention fall within the plain meaning of
    detained in custody under s. 524(8), and both satisfy the exception to
    enhanced credit in s. 719(3.1).

(b)

The Criminal Record and the Misconduct on Release Exclusion Scheme

[40]

Section
    719(3.1) sets out two situations where an accused will be precluded from
    obtaining enhanced credit. As discussed, the criminal record exclusion occurs when
    the accused is detained primarily on the basis of his or her prior criminal
    record, and the justice of the peace endorses the record accordingly in
    writing. The misconduct on release exclusion arises when the accused has
    committed an indictable offence or breached the conditions of his or her
    release, and is detained under s. 524(4) or (8) as a result.

[41]

The
    sentencing judge in
McDougall
concluded that an accused who had
    consented to detention was not detained under s. 524(8) in part because she
    considered this consistent with the criminal record exclusion. If an accused
    with a significant record consents to detention, there will be no endorsement
    on the record, even if the accused would likely have been refused release on
    the basis of his or her convictions. The accused retains eligibility for
    enhanced credit. The sentencing judge reasoned that Parliament would not have
    intended to treat these two types of accused persons differently.

[42]

With
    respect, I disagree with the sentencing judges reasoning in
McDougall
.

[43]

First,
    the two exclusions deal with different situations:  accused persons who have
    engaged in some form of misconduct while on release and those who are detained
    primarily as a result of their record. It is open to Parliament to treat these
    two groups differently. Parliament has in fact done so. For example, Parliament
    has required a written notation on the record for a person to be deprived of
    enhanced credit under the criminal record exclusion. No similar notation is
    required in the case of accused persons who engage in misconduct while on
    release.

[44]

Second,
    under the criminal record exclusion, a show cause hearing is required to give
    the justice of the peace an opportunity to make the written endorsement. The
    misconduct on release exclusion contemplates that no show cause hearing may
    ever occur, as the burden is on the accused to bring a show cause hearing or
    remain in detention.

[45]

In
    my view, the distinct exclusions set out in s. 719(3.1) are consistent with the
    overall scheme put in place by the
TISA
amendments.

(c)

Parliaments Intention

[46]

Parliaments
    intention in enacting the
TISA
amendments supports the
Chambers
interpretation of ss. 719(3.1) and 524(8). As Strathy J.A. observed in
R.
    v.

Safarzadeh-Markhali
, 2014 ONCA 627, 122 O.R. (3d) 97, leave to
    appeal allowed, [2014] S.C.C.A. No. 489, at paras. 53-55:

The
TISA
reflected Parliaments concern that sentences
    were too lenient, that allowances for pre-sentence custody were overly generous
    and that the method of calculating sentences was opaque and failed to explain
    how credit was being given for time spent in custody prior to sentence: see
Summers
,
    at paras. 52, 53;
Carvery
(NSCA), at para. 83.

Another concern was that some accused persons were gaming the
    system, by deliberately prolonging their time in pre-sentence custody, in
    order to increase the credit they received, thereby reducing the overall length
    of the custodial part of their sentences. With credit for pre-sentence custody
    limited to 1.5:1, or even more so for 1:1, there would be no incentive for an
    accused to prolong the time spent in pre-sentence custody.

Another objective of the legislation  was to enhance public
    safety by keeping repeat offenders and those who violated their bail conditions
    in custody for longer periods, thereby punishing them for their conduct and
    making rehabilitative programs available to them while in jail. [See, also,
Summers
,
    at paras. 4, 51-58.]

[47]

Parliaments
    purposes in enacting the
TISA
suggest the
McDougall
interpretation is inconsistent with Parliaments intention.

[48]

The
McDougall
interpretation would permit accused persons to game the
    system by repeatedly consenting to detention and delaying any show cause
    hearing. This deliberate delay would preserve their eligibility for enhanced
    credit. As Bauman C.J.B.C. commented in
Chambers
: to suggest that by
    the simple expedient of consenting to remand, an accused can take himself or
    herself beyond the reach of s. 719(3.1) invites the kind of manipulation by
    accused persons that the
TISA
amendments are generally directed
    against (at para. 51). Under the
Chambers
interpretation, there is no
    incentive for an accused to delay seeking a show cause hearing or to consent to
    detention to preserve eligibility for enhanced credit.

[49]

The
McDougall
interpretation would also weaken Parliaments attempt at
    improving transparency in calculating sentences, as the ability of an accused
    person to avoid being included in the categories of offenders targeted by
    Parliament reduces transparency.

[50]

Similarly,
    allowing an accused who has breached his or her bail conditions or committed an
    indictable offence while on release to determine his or her own eligibility for
    enhanced credit would undermine Parliaments objective to keep these
    individuals in custody for longer periods.

[51]

The
    ordinary meaning of the relevant provisions and Parliaments purpose in enacting
    them militate against the
McDougall
interpretation favoured by the
    appellant, and, in my view, strongly favours the one adopted in
Chambers
and
Ibrahim
.

(2)

Consistency with
Summers

[52]

The
    sentencing judge in
McDougall
adopted the interpretation she believed
    was more consistent with the Supreme Courts reasoning in
Summers
. In
    my view, the reasoning in
Summers
does not assist the appellant.

[53]

First,
    the sentencing judge in
McDougall
analogized from the reasoning in
Summers
that if Parliament had intended to limit the circumstances justifying enhanced
    credit, it would have done so expressly: see
Summers
, at paras. 55-57.
    She concluded that if Parliament intended to give an interpretation to s.
    524(8) that would alter the long-standing understanding and practise of
    allowing accused persons whose bail was revoked to apply for enhanced credit,
    Parliament would have amended the bail provisions (at para. 32).

[54]

With
    respect to the sentencing judge, in my view, Parliament was not required to
    amend the bail provisions. It amended the provisions dealing with enhanced
    credit and provided the express limitation that an accused will not be eligible
    for enhanced credit where he or she has been detained in custody under s.
    524(8). This case is distinguishable from
Summers
.

(3)

The Constitutionality Issue

[55]

The
    appellant does not challenge the constitutionality of this exclusion. As I have
    concluded the exclusion is not ambiguous, it is unnecessary to resort to the
    interpretive principle that where a statutory provision is ambiguous, the
    interpretation more in line with the
Canadian Charter of Rights and
    Freedoms
is to be preferred.

F.

DISPOSITION

[56]

For
    the reasons above, I would dismiss the appeal.

Released: MT Sep 4, 2015

M. Tulloch J.A.

I agree. R.A. Blair
    J.A.

I agree. C.W.
    Hourigan J.A.