WARNING

The
President of the panel hearing this appeal directs that the
    following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of
the
    Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in any
    way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. H.K., 2022 ONCA 45

DATE: 20220120

DOCKET: C68669

Tulloch, Hourigan and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.K.

Appellant

H.K., acting in person

Mark Ertel, appearing as duty counsel

Philippe Cowle, for the respondent

Heard: November 4, 2021 by video conference

On appeal from the convictions entered on
    May 8, 2020 and the sentence imposed on September 3, 2020 by Justice Ann Alder
    of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted of various offences
    arising out of a sexual assault. He received a global sentence of three years,
    to be served consecutive to a sentence he is serving for previous convictions.

[2]

The appellants notice of appeal argues the
    trial judge erred in two respects. First, the trial judge failed to resolve conflicting
    evidence on the critical issue of consent. Second, the sentence imposed was
    excessive because it failed to properly take into account the sentencing
    principle of totality.

[3]

In oral submissions, duty counsel informed the
    court that the appellant did not wish to advance any arguments regarding his
    sentence appeal. Accordingly, leave to appeal the sentence was denied. At the
    conclusion of the hearing, we dismissed the appeal, with reasons to follow. We
    now provide our reasons.

Background Facts

[4]

The facts that form the basis of the convictions
    are as follows. The appellant and complainant were in a romantic relationship. In
    January 2019, the complainant took a trip to Miami, Florida with her sister. On
    her return layover, the complainant, her sister, and the appellant argued over
    the phone over the complainants lack of contact with the appellant during the
    trip. The complainant returned to her parents house from the airport, but
    later went to the appellants residence at the appellants request. The pair
    argued again, and the appellant accused her of infidelity. He also looked at
    her cellphone and found a photo of the complainant and her sister with two men
    during the Miami trip.

[5]

The complainant testified that she believed the
    appellant began to get violent after seeing the photo. The complainant could
    not clearly recall the order in which the events that followed occurred, and she
    offered inconsistent and shifting testimony on the order of the events.

[6]

The appellant gave the complainant an ultimatum:
    she could either be slapped by him or she could leave. The complainant agreed
    to receive the slaps and testified that she did so out of fear and in an
    attempt to fix the situation and their relationship.

[7]

At another point in the evening, the appellant either
    removed the complainants clothes or had her remove her own clothes. She could
    not recall clearly whether he continued to hit her. She testified the appellant
    digitally penetrated her vagina, and then they had sexual intercourse. She
    testified that she felt she had no choice but to engage in sexual intercourse
    with the appellant because she was scared that he was angry and violent, and
    she was upset and crying. At still another point in the evening, the appellant began
    punching the complainant in the ribs and around her tailbone. The appellant was
    angry, and the complainant was crying. The appellant offered to call 911 given
    the force of the strikes, but she declined because she did not want to involve
    the police.

[8]

The complainant eventually fell asleep and was
    woken by the appellant grabbing her and throwing her into the bathtub, which
    was filled with water. The appellant instructed her to remove her pajamas. He
    handed her a hairbrush with a hand towel wrapped around the handle and
    instructed her to clean the inside of herself with it. She attempted to comply
    out of fear of the appellant.

[9]

The complainant testified that the next thing
    she remembered was waking up the next morning to the appellant again throwing
    her in the bathtub, which was again filled with water. The appellant told her
    that he would look at the photo every morning to remind himself of her
    infidelity. The appellant then cut off some of her hair, and then proceeded to
    urinate on her. He made her insert her fingers in her vagina with the urine in
    the water. She complied because she felt completely powerless.

[10]

Over the course of the incidents, the appellant
    would give the complainant an ultimatum: either she could comply with his
    demands or she could leave. The complainant testified that she complied because
    she hoped that compliance would make him stop or would fix the issue.

[11]

The following day, the complainant left the
    appellants house without some of her belongings, including her phone. She went
    to her sisters house. The complainant and her sister returned to the
    appellants residence and tried to get her belongings back but were
    unsuccessful. The complainants sister contacted the police, who took reports,
    statements, and photographs. The complainant was then taken to the hospital,
    where X-rays revealed some bruising.

[12]

Following the complainants departure from the
    appellants house, he sent the complainant numerous text messages admitting to
    the facts of the sexual assault and apologizing; however, his text messages
    also stated that the complainant agreed to the acts that occurred and that the
    complainant voluntarily agreed to stay rather than leave.

Decision Below

[13]

The appellant was convicted of two counts of assault
    for punching the complainant in the ribs and tailbone area. The force of the
    strikes was corroborated by evidence presented by the complainants sister, the
    hospital records, photos, and the appellants text messages. The trial judge
    accepted the complainants testimony that she did not agree to being struck.
    While the complainant may have told the appellant at times that she would do
    anything to stay, this does not amount to consent to each act which occurred.

[14]

The appellant was also convicted of sexual
    assault with a weapon and fail to comply for the hairbrush incident. Despite
    the complainants inability to recall whether the punching occurred before this
    incident or not, the trial judge accepted the complainants account of the
    events. The trial judge also considered the digital penetration of the
    complainant and the sexual intercourse that followed as part of the context informing
    whether the complainant had subjectively consented to the hairbrush incident.
    Though the appellant was acquitted of sexual assault for the digital
    penetration and sexual intercourse on the basis that the Crown failed to
    establish an absence of consent or acquiescence as a result of the application
    of force or threats or the fear of force, the trial judge noted that these acts
    involved control, harassment, and some violence, and were relevant to her
    analysis. The trial judge considered the events leading up to the complainants
    attendance at the appellants home. She also considered the complainants
    statement that she would do anything to salvage the relationship and the fact that
    the complainant did not leave when given ultimatums to either stay and comply
    or leave. Having regard to all the evidence, the trial judge concluded the
    complainant did not consent to the hairbrush incident and convicted the
    appellant of sexual assault with a weapon. As the appellant was at the time
    subject to a recognizance prohibiting the possession of weapons, he was also
    convicted for fail to comply.

[15]

Finally, the appellant was convicted of sexual
    assault for coercing the complainant to insert her fingers in her vagina after
    he urinated on her and cut her hair. The trial judge accepted the complainants
    testimony that she again complied out of fear of further violence. She
    therefore did not consent to the act.

[16]

As stated earlier, the appellant was given a
    global sentence of three years in custody.

Issue on Appeal

[17]

The appellant argues that the trial judge failed
    to resolve conflicting evidence on the critical issue of consent. Duty counsel
    argues that the trial judge treated the credibility assessment in a piecemeal
    manner. Duty counsel contends that the trial judge did not find the complainant
    to be credible generally: the complainants evidence changed from her
    examination-in-chief, to her cross-examination, and at times also in her
    re-examination. Yet, in assessing the complainants credibility on the offences
    for which the appellant was ultimately found guilty, the trial judge failed to
    consider inconsistencies in the complainants evidence on other counts. The
    trial judge also failed to consider the complainants evidence that she had
    consented to some acts that she would not have otherwise because she had
    consumed prescription drugs earlier that day. The failure to resolve these
    issues with the complainants evidence amounts to an insufficiency of reasons
    which warrants appellate intervention. We do not agree.

[18]

The Supreme Court of Canada, in
R. v. G.F
.,
    2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82, clearly circumscribes
    the parameters of appellate intervention and the heightened deference owed to a
    trial judges credibility findings:

[81]   a trial judges findings of
    credibility deserve particular deference. While the law requires some
    articulation of the reasons for those findings, it also recognizes that in our
    system of justice the trial judge is the fact finder and has the benefit of the
    intangible impact of conducting the trial. Sometimes, credibility findings are
    made simpler by, for example, objective, independent evidence. Corroborative
    evidence can support the finding of a lack of voluntary consent, but it is of
    course not required, nor always available. Frequently, particularly in a sexual
    assault case where the crime is often committed in private, there is little
    additional evidence, and articulating reasons for findings of credibility can
    be more challenging. Mindful of the presumption of innocence and the Crowns
    burden to prove guilt beyond a reasonable doubt, a trial judge strives to
    explain why a complainant is found to be credible, or why the accused is found
    not to be credible, or why the evidence does not raise a reasonable doubt.

[82]   Credibility findings must also be
    assessed in light of the presumption of the correct application of the law,
    particularly regarding the relationship between reliability and credibility.
    The jurisprudence often stresses the distinction between reliability and
    credibility, equating reliability with the witness ability to observe, recall,
    and recount events accurately, and referring to credibility as the witness
    sincerity or honesty. However, under a functional and contextual reading of
    trial reasons, appellate courts should consider not whether the trial judge
    specifically used the words credibility and reliability but whether the
    trial judge turned their mind to the relevant factors that go to the
    believability of the evidence in the factual context of the case, including
    truthfulness and accuracy concerns.  [Citations omitted.]

[19]

We reject duty counsels argument that
    heightened deference to a trial judges credibility findings is only owed if
    the trial judge has found the complainant to be generally credible. A trier of
    fact is entitled to accept some, none, or all of the evidence given by a
    witness. The trial judge in this case conducted a thorough and detailed
    analysis of the entire evidence. She considered where the complainants evidence
    was consistent or corroborated by other evidence, and she explained where the
    complainants evidence was unreliable. This is entirely consistent with her
    role as the trier of fact.

[20]

Duty counsel also argues that, having found
    issues with the complainants evidence about some of the allegations, the trial
    judge was required to consider whether those weaknesses undermined the
    complainants evidence on other allegations. Duty counsel further suggested
    that had the trial judge stated in her reasons that she was accepting the
    complainants evidence notwithstanding issues with her evidence on other
    allegations, the trial judges credibility findings would be entitled to
    deference as stated in
G.F
.

[21]

Respectfully, this submission misunderstands the
    instruction in
G.F
.
G.F
. requires appellate courts to take a
    practical approach to reviewing a trial judges reasons. There is no magic
    incantation required of trial judges. Reading the trial judges reasons as a
    whole, there is no basis on which we find that they were insufficient so as to
    be inscrutable or incapable of meaningful appellate review. The trial judges
    reasons were careful and nuanced. She explained why she did not accept some of
    the complainants evidence and why she did accept other parts of the complainants
    evidence.
Moreover, the trial judge did not consider
    the complainants evidence alone but also had regard to corroborating evidence
    by other witnesses, photos, and text messages.

[22]

In our view, the trial judge made no error in
    her analysis.

Disposition

[23]

For the foregoing reasons, the appeal from the convictions
    is dismissed.

M.
    Tulloch J.A.

C.W.
    Hourigan J.A.

L.
    Sossin J.A.


WARNING

T
he
    motion judge presiding over this hearing directs that the following should be
    attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of
the
    Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in any
    way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. T.M., 2022 ONCA 46

DATE: 20220119

DOCKET:
    M52958 (C70015)

Tulloch J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

T.M.

Appellant/Applicant

Katie Heathcote, agent for counsel for
    the applicant

Craig Harper, for the respondent

Heard: November 24, 2021 by video conference

REASONS
    FOR DECISION

[1]

On April 7, 2021, following a judge-alone trial
    in the Superior Court of Justice, the applicant, T.M., was convicted of
    sexually assaulting his intimate partner and choking her to overcome resistance
    to the offence. He was sentenced to four years imprisonment.

[2]

The applicant now seeks release pending appeal
    on the basis of an alleged misapprehension of evidence, and, more particularly,
    that the trial judge made substantial errors in her assessment of the evidence
    and in her credibility assessment.

[3]

The Crown disagrees and opposes the applicants release
    on the basis that the pending appeal is frivolous, as well as on the tertiary
    ground that it would be contrary to the public interest.

Facts

[4]

At the applicants trial, the court heard
    evidence from the complainant and a police officer. The defence called no
    evidence. The Crown and defence agreed that if the trial judge accepted the
    Crowns evidence, then the offences would have been made out.

[5]

The underlying facts as found by the trial judge
    and on which the convictions are based are as follows. The complainant and the applicant
    were involved in a domestic intimate relationship from sometime in 2014 or 2015
    to August 2016. On July 5, 2016, the complainants father passed away, and the
    funeral was held on July 7, 2016. On July 9, 2016, two days after the
    complainants fathers funeral, she was in her bedroom resting when the applicant
    entered the bedroom and told her that he wanted her to be more of a girlfriend
    to him and more attentive. The complainant indicated to the applicant that she
    wanted to be left alone, but the applicant would not take no for an answer.

[6]

The applicant tried to take off the
    complainants yoga pants and a black spaghetti-strap shirt. He forced her legs open
    and pushed himself on top of her. Her pants were ripped in the struggle. The
    complainant was crying and said please dont do this to me. The applicant had
    his hand around her neck and pinned her down, so she was not able to breathe. She
    testified that she felt absolutely defeated.

[7]

The applicant penetrated the complainant
    vaginally. He was not satisfied and told her to turn around. She said no. The applicant,
    in response to her refusal, punched her in the side of her body and forced her to
    turn around by her hair. This caused the left side of her face to hit the wall.
    He tried to bite the complainants face but bit her hand instead. He then
    forced anal sex on her. She stated that it hurt, and she did not know how long
    this lasted. The complainant had sore ribs but did not receive medical attention.

[8]

The applicant did not testify.

The Applicants Criminal Antecedents

[9]

The applicant has a long criminal record, dating
    back to 1985, as well as a history of violence against domestic partners. The offences
    for which he has been previously convicted include offences of violence, such
    as assaults, assault causing bodily harm, crimes of dishonesty (theft and
    public mischief), participation in a criminal organization, illegal transfer of
    a firearm, possession of proceeds obtained by crime, failure to comply with
    court orders while on release (four convictions), and failure to comply with
    probation.

[10]

Of particular relevance to this application for
    release pending appeal, are the applicants previous convictions for very
    serious assaults against intimate partners. There are two sets of such convictions,
    all of which involved different intimate partners and different time frames.

[11]

The first convictions against an intimate
    partner involves a set of offences committed between 2002 and 2010, which
    resulted in convictions in 2013 for assault, aggravated assault, assault with a
    weapon, and uttering threats. The underlying facts for this first series of
    offences involved the applicant striking the complainant with a piece of wood
    which caused the complainants arm to be fractured. He was also convicted of
    choking the complainant, and of grabbing and throwing her on the bed. This
    series of offences resulted in ongoing physical difficulties to the complainant.

[12]

The second set of offences involving an intimate
    partner resulted in the applicant being convicted of assault causing bodily
    harm on October 16, 2018. On February 25, 2018, the complainant returned home
    from church to find the applicant in her residence. They engaged in a verbal
    argument. Without warning, the applicant punched the complainant directly in
    the face, knocking her unconscious. She regained consciousness as he dragged
    her across the kitchen floor by her ankles. The applicant proceeded to choke
    her with his hands around her neck, and then placed her in a bear hug from the
    front, making it extremely difficulty for her to breathe. He pushed her up
    against the kitchen cupboards, causing her to strike the back of her head on
    the cupboard handle. He then began choking her around her neck again.
    Throughout the assault, he made threatening comments to her, and she lost
    consciousness at least one time. This offence occurred while the applicant was
    on bail pending trial for the instant offences. His sister was his surety at
    that time. The applicant pled guilty.

Proposed Sureties

[13]

In this application for release pending appeal,
    the applicant has submitted a proposed plan of release, in which he proposes as
    sureties his sister as well as his new wife, who he has been married to since
    June 13, 2021. None of the affidavits of the proposed sureties for this
    application referenced the applicants criminal record or addressed his past breaches
    of court orders. They did not address what would be different this time around,
    after the applicant has been convicted for yet another series of offences
    involving another intimate partner.

Analysis

[14]

An application for release pending appeal is governed
    by s. 679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46. The applicant
    must satisfy the court that:

a.

the appeal or application for leave to appeal is
    not frivolous;

b.

he will surrender himself into custody in
    accordance with the terms of the order; and

c.

his detention is not necessary in the public interest.

[15]

The applicant bears the burden of meeting each criterion
    on a balance of probabilities. As the applicant has now been convicted, he no
    longer benefits from the presumption of innocence:
R. v. Oland
, 2017
    SCC 17, [2017] 1 S.C.R. 250, at para. 35.

Section 679 (3)(a): The Appeal is Not Frivolous

[16]

The not frivolous test is a very low bar:
Oland
,
    at para. 20. It is not, however, non-existent. The applicant must provide an
    outline of his argument supported by legal authority and a factual underpinning
    so that the court can determine whether the applicant has met the burden under s.
    679(3)(a). In essence, the applicant must show the proposed appeal raises
    arguable issues:
R. v. Manasseri
, 2013 ONCA 647, 312 C.C.C.
    (3d) 132, at para. 38. If a judge is unable to determine on the record before the
    court if the onus has been met, the applicant has not established his or her onus
    of proof that the appeal is not frivolous.

[17]

The applicant submits that the trial judge
    misapprehended the evidence, and as such, the appeal is arguable. I disagree. A
    close examination of the applicants proposed ground of appeal within the
    context of the evidentiary narrative leads to the conclusion that there is no
    merit to this ground of appeal. The legal test for a misapprehension of
    evidence was succinctly stated by this court in the case of
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541:

Where a trial judge is mistaken as to the
    substance of material parts of the evidence and those errors play an essential
    part in the reasoning process resulting in a conviction then, in my view, the
    accuseds conviction is not based exclusively on the evidence and is not a
    true verdict If an appellant can demonstrate that the conviction depends on
    a misapprehension of the evidence then, in my view, it must follow that the
    appellant has not received a fair trial, and was the victim of a miscarriage of
    justice. This is so even if the evidence, as actually adduced at trial, was
    capable of supporting a conviction.

[18]

The Supreme Court of Canada in the case of
R.
    v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, clarified the
    test for misapprehension of evidence as enunciated in
Morrissey
:

Morrissey
, it
    should be emphasized, describes a stringent standard. The misapprehension of
    the evidence must go to the substance rather than to the detail. It must be
    material rather than peripheral to the reasoning of the trial judge. Once those
    hurdles are surmounted, there is the further hurdle (the test is expressed as
    conjunctive rather than disjunctive) that the errors thus identified must play
    an essential part not just in the narrative of the judgment but in the
    reasoning process resulting in a conviction.

[19]

The basis of the applicants argument is in an
    affidavit by a lawyer, Arden Ross, who asserts that he reviewed the trial notes
    of the applicants trial counsel as they pertain to the complainants evidence.
    From that review, he concludes that the complainants evidence is irreconcilable,
    as the complainant gave evidence indicating that the applicant remained
    inside of her while he punched her side and grabbed her by the hair, forcing
    her to turn over onto her stomach during the described sexual assault.

[20]

The trial judge dealt directly with this
    submission and the concerns raised by the defence. She considered the totality
    of the evidence, and she addressed the concerns and perceived inconsistencies:

The defence in submissions takes issue with
    the chronology of these events and questions whether all of those things she
    described could be happening at once, such as the forced vaginal intercourse;
    the hand around her throat, the punch to her side, the attempt to bite her
    face. The difficulty with this submission is that this was not put to the
    witness. She maintained in her evidence that all of these events took place and
    some inconsistency in her evidence as to whether the accused was standing or on
    the bed with her when he was forcing anal intercourse, and whether her top was
    ripped off or just ripped does not detract from her evidence overall.

Her evidence in relation to the incidents of
    July 9th, 2016, is detailed and straightforward, and any minor inconsistencies do
    not concern any material issues.

[21]

In my view, this is a complete answer to the
    applicants ground of appeal based on a misapprehension of the evidence. It is
    clear from the above excerpt that the trial judge understood the concerns
    raised by the defence, she turned her mind to the complainants evidence on the
    issue in concern, and she addressed the fact that the complainant was not
    cross-examined on the perceived inconsistencies with this portion of the
    evidence. It is clear that the trial judge considered the defence arguments in
    her weighing and assessment of the credibility and reliability of complainants
    evidence, and in the end, she was satisfied beyond a reasonable doubt that the Crown
    had discharged its burden of proof.

[22]

In my view, the applicants proposed ground of
    appeal does not go to the substance of the evidence. The sole issue at trial
    was the credibility and reliability of the complainants evidence. The
    complainant was the only witness who testified on the issues pertaining to the
    elements of sexual assault that the Crown was required to prove. The applicant chose
    not to call any evidence, which was his right. Unfortunately for him, the only
    credible evidence which the trial judge was left with to determine the guilt or
    innocence of the applicant was the unimpeached evidence of the complainant.

[23]

The proposed ground of appeal which the applicant
    has couched under the rubric of a misapprehension of the evidence goes to the
    detail rather than the substance of the evidence and was clearly not material,
    but rather peripheral, to the reasoning of the trial judge. The trial judge
    gave very clear and detailed reasons why she accepted the evidence of the
    complainant, and why she was not left with any reasonable doubt by the
    arguments of the defence. In my view, the very low test of not frivolous has
    not been met by the applicant in this case.

Section 679(3)(c): Detention is Not Necessary
    in the Public Interest

[24]

Furthermore, even if the ground of appeal were
    arguable, I find that pursuant to s. 679(3)(c), the applicant has not
    discharged his onus of establishing that his detention pending his appeal is
    not warranted in the publics interest.

[25]

An assessment of the public interest requires an
    assessment of public safety and public confidence in the administration of
    justice.

[26]

Public safety involves an assessment of the
    secondary ground concerns governing pre-trial release under s. 515(10)(b). As
    explained in
R. v. Stojanovski
, 2020 ONCA 285, at para. 18, bail will
    be denied if the following conditions are met: (i) the individual must pose a substantial
    likelihood of committing an offence or interfering with the administration of justice;
    (ii) the substantial likelihood must endanger the protection or safety of the
    public; and (iii) the individuals detention must be necessary for public safety.
    A history of breaching court orders is an important factor in gauging how an
    applicant will perform on bail:
R. v. L.D
., 2021 ONCA 786.

[27]

Public safety concerns, standing alone, can
    justify refusing bail in the public interest. As pointed out earlier, the
    applicant has a significant criminal record for violence and for breaching
    court orders. In addition, he now has two sets of convictions for intimate
    partner violence, one of which was committed while on bail and awaiting trial
    for the instant charges. By virtue of the applicants criminal antecedents,
    there is a clear indication that the applicant poses a substantial likelihood
    of committing a subsequent offence, which could endanger the protection or
    safety of the public. As such, I am satisfied that the applicants detention is
    necessary for public safety.

[28]

The second category, public confidence, requires
    an assessment and balancing of the competing interests of enforceability and
    reviewability. The interest of enforceability is assessed with a view to the
    seriousness of the crime: the more serious the crime, the greater the risk that
    the publics confidence in the administration of justice will be undermined if
    the person convicted is released on bail pending appeal:
R. v. T.S.D.
,
    2020 ONCA 773, at para. 52;
Oland
, at para. 37. The reviewability
    interest considers the strength of the appeal, having regard to the general
    legal plausibility and evidentiary support for the proposed grounds of the
    appeal:
T.S.D.
, at para. 56;
Oland
, at paras. 40 and 44.

[29]

In my view, the enforceability interest is
    significant in this case and overrides the reviewability interest. The
    applicant was convicted of a very serious and violent sexual assault against
    his intimate partner. He also has a history of intimate partner violence and of
    breaching court orders.

[30]

I acknowledge that, more likely than not, the
    appeal will be heard before the applicant has served his sentence, and as such,
    the interest of reviewability militates in favour of release pending appeal.
    However, as I explained earlier in these reasons, in my view there is no
    prospect of success on this appeal, as the proposed ground of appeal lacks
    merit.

[31]

Accordingly, the public interest in maintaining
    confidence in the administration of justice militates in favour of enforceability
    in this case.

Disposition

[32]

For these reasons, the application for release
    pending appeal is dismissed.

M.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Laurentide Kitchens Inc. v.
    Homestars Inc., 2022 ONCA 48

DATE: 20220124

DOCKET: C69229

Benotto, Huscroft and Miller JJ.A.

BETWEEN

Laurentide Kitchens Inc.

Plaintiff (Appellant)

and

Homestars Inc.

Defendant (Respondent)

and

BETWEEN

DOCKET: C69287

Lucvaa Ltd.

Plaintiff (Appellant)

and

Homestars Inc.

Defendant (Respondent)

Gavin J. Tighe and Daria Risteska, for the
    appellants

Maanit Zemel, for the respondent

Heard: November 29, 2021

On appeal from the order of L.S. Ntoukas,
    Administrative Judge of the Small Claims Court, dated February 17, 2021.

Benotto J.A.
:

[1]

Does the Administrative Judge of the Small Claims Court have
    jurisdiction to make an order under s. 137.1 of the
Courts
    of Justice Act
,
    R.S.O. 1990, c. C.43 (
CJA
)
?
[1]
The appellants submit that she does not because the issue was determined by
    this court in
Bruyea v. Canada (Veteran Affairs)
,

2019
    ONCA 599, 439 D.L.R. (4th) 193. The respondent submits that
the jurisdiction issue decided in
Bruyea
was limited to deputy judges of the Small Claims Court and does not extend to
    the Administrative Judge.

[2]

Two appeals, heard together, raised this issue. For the reasons that
    follow, I would allow the appeals. I conclude that the Administrative Judge of
    the Small Claims Court does not have jurisdiction to make an order under s.
    137.1. That jurisdiction lies only with a Superior Court judge.

BACKGROUND

(1)

The defamation actions

[3]

The respondent Homestars Inc. operates a website, on
    which consumers post reviews of contractors and providers of home improvement
    services. Negative reviews were posted against the appellants Lucvaa Ltd. and
    Laurentide Kitchens Inc.
On May 30, 2018, Lucvaa and Laurentide Kitchens
    sued Homestars in Small Claims Court.

[4]

Homestars brought motions against each appellant
    to dismiss their actions under s. 137.1 of the
CJA
. The motions were
    scheduled to be heard before a deputy judge on April 30, 2019.

(2)

Bruyea
is released

[5]

Two and a half months after the motions were
    scheduled, the decision in
Bruyea
was released. This court concluded
    that deputy judges do not have the jurisdiction to make orders under s. 137.1
    of the
CJA.
Deputy judges are
    lawyers who are appointed by the regional senior judge of the Superior Court,
    with the approval of the Attorney General, usually for a term of three years.
Bruyea
has been followed by this court in other cases which have confirmed that
    only Superior Court judges can make orders under s. 137.1.

(3)

Application to the Superior Court

[6]

Homestars applied to the Superior Court and
    sought to have a Superior Court judge assigned to hear the motion. Under the
CJA
s. 22(3), all Superior Court judges are also judges of the Small Claims
    Court. On October 17, 2019, the matter came before a Superior Court judge in
    civil practice court. He endorsed the record that the action would remain in
    Small Claims Court and an administrative judge of the Small Claims Court
    should hear these motions.

[7]

There is one Administrative Judge of the Small
    Claims Court. As will be discussed below, this was a position created by the
    legislature in 2017.

(4)

Decision of the Administrative Judge

[8]

On February 27, 2020, the motions came before
    the Administrative Judge. The appellants challenged her jurisdiction, and it
    was argued as a preliminary matter.

[9]

In her written reasons, released a year later on
    February 17, 2021, the Administrative Judge concluded that the Superior Court
    judges endorsement settled the issue of jurisdiction, and she would hear the
    motions when the court resumed operations. The appellants appeal this
    order.

STATUTORY AND JURISPRUDENTIAL BACKGROUND

[10]

There are statutory and jurisprudential
    principles that frame the issue of jurisdiction.

(5)

Statutory principles

[11]

The statutory framework is found in ss. 137.1,
    87.2 and 24 of the
CJA.

Section 137.1

[12]

Section 137.1 was enacted in 2015 to promote and
    protect freedom of expression on matters of public interest by allowing a
    defendant to move at an early stage to dismiss proceedings that adversely
    affect that expression. The section is as follows:

Dismissal
    of proceeding that limits debate

Purposes

137.1

(1) The
    purposes of this section and
sections 137.2
to
137.5
are,

(a) to encourage individuals to
    express themselves on matters of public interest;

(b) to promote broad participation
    in debates on matters of public interest;

(c) to discourage the use of litigation
    as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that
    participation by the public in debates on matters of public interest will be
    hampered by fear of legal action. 2015, c. 23, s. 3.

Definition, expression

(2) In this section,

expression means any
    communication, regardless of whether it is made verbally or non-verbally,
    whether it is made publicly or privately, and whether or not it is directed at
    a person or entity. 2015, c. 23, s. 3.

Order to dismiss

(3) On motion by a person
    against whom a proceeding is brought, a judge shall, subject to subsection (4),
    dismiss the proceeding against the person if the person satisfies the judge
    that the proceeding arises from an expression made by the person that relates
    to a matter of public interest. 2015, c. 23, s. 3.

No dismissal

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

(a) there are grounds to believe
    that,

(i)
    the proceeding has substantial merit, and

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

(b) the harm likely to be or have
    been suffered by the responding party as a result of the moving partys
    expression is sufficiently serious that the public interest in permitting the
    proceeding to continue outweighs the public interest in protecting that
    expression. 2015, c. 23, s. 3.

No further steps in proceeding

(5) Once a motion under this
    section is made, no further steps may be taken in the proceeding by any party
    until the motion, including any appeal of the motion, has been finally disposed
    of. 2015, c. 23, s. 3.

No amendment to pleadings

(6)

Unless a judge
    orders otherwise, the responding party shall not be permitted to amend his or
    her pleadings in the proceeding,

(a) in order to prevent or avoid an
    order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed
    under this section, in order to continue the proceeding. 2015, c. 23, s. 3.

Costs on dismissal

(7) If a judge dismisses a
    proceeding under this section, the moving party is entitled to costs on the
    motion and in the proceeding on a full indemnity basis, unless the judge
    determines that such an award is not appropriate in the circumstances. 2015, c.
    23, s. 3.

Costs if motion to dismiss denied

(8) If a judge does not dismiss
    a proceeding under this section, the responding party is not entitled to costs
    on the motion, unless the judge determines that such an award is appropriate in
    the circumstances. 2015, c. 23, s. 3.

Damages

(9) If, in dismissing a
    proceeding under this section, the judge finds that the responding party
    brought the proceeding in bad faith or for an improper purpose, the judge may
    award the moving party such damages as the judge considers appropriate. 2015,
    c. 23, s. 3.

[13]

As provided for under s. 137.2(2), the s. 137.1
    motion is to be heard within 60 days after the notice of motion is filed with
    the court. Section 137.1(5) provides that the s. 137.1 motion stays the
    underlying defamation action until the motion has been finally determined,
    including on appeal. Section 137.1 also provides provisions for the imposition
    of costs and damages.

[14]

The detailed process to determine whether a s.
    137.1 motion will succeed involves a framework and a shifting burden that was
    described in
1704604 Ontario Ltd. v.
Pointes
    Protection
Association
,
2020 SCC 22,
449 D.L.R. (4th) 1, at para. 18:

In brief, s. 137.1
    places an initial burden on the moving party  the defendant in a lawsuit  to
    satisfy the judge that the proceeding arises from an expression relating to a
    matter of public interest. Once that showing is made, the burden shifts to the
    responding party  the plaintiff  to satisfy the motion judge that there are
    grounds to believe the proceeding has substantial merit and the moving party
has no valid defence
, and that the
public interest in permitting the proceeding to continue
    outweighs the public interest in protecting the expression
. If the
    responding party cannot satisfy the motion judge that it has met its burden,
    then the s. 137.1 motion will be granted, and the underlying proceeding
    will be consequently dismissed. It is important to recognize that the final
    weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis
     legislative debates emphasized balancing and proportionality between the
    public interest in allowing meritorious lawsuits to proceed and the public
    interest in protecting expression on matters of public interest. Section
    137.1(4)(b) is intended to optimize that balance. [Emphasis added.]

[15]

The evidence before the motion judge must comply
    with the section to establish the expression of public interest, the merits of
    the claim, the validity of the defences and then the proper balancing and
    proportionality between public interest in allowing the matter to proceed and
    protecting expression. This typically involves an exchange of affidavits,
    cross-examinations and extensive submissions.

Sections 87.2 and 24

[16]

In 2017, the
Burden Reduction Act
, 2017, S.O. 2017, c. 2

amended
    the
CJA
to create the position of Small Claims Court Administrative
    Judge. Ten years earlier, the Civil Justice Reform Project had recommended that
    an administrative judge be appointed to ensure that trial and settlement
    conferences lists were properly organized in the Small Claims Court. The
    official debates refer to creating the position of Small Claims Court
    administrative judge to improve our Small Claims Court processes and ensure
    that any dispute, big or small, is handled fairly and smoothly by our courts.
[2]

[17]

When the
Burden Reduction Act
was
    passed, s. 87.2 was added to the
CJA
:

Small Claims Court
    Administrative Judge

87.2

(1) The
    Lieutenant Governor in Council may, on the recommendation of the Attorney
    General, appoint a person who meets the qualifications set out in
subsection 42 (2)
as Small Claims Court
    Administrative Judge. 2017, c. 2, Sched. 2,
s. 18
.

[18]

The qualifications in s. 42(2) are those for a
    provincial court judge.

[19]

Section 24 of the
CJA
was also amended
    to add the Administrative Judge in s. 24(2)(c):

Composition of court for
    hearings

24

(1) A proceeding
    in the Small Claims Court shall be heard and determined by one judge of the
    Superior Court of Justice. R.S.O. 1990, c. C.43, s. 24 (1);
    1996, c. 25, s. 9 (17).

Other judicial officials who
    may preside

(2) Despite subsection (1), a
    proceeding in the Small Claims Court may also be heard and determined by,

(a)  a provincial judge who was
    assigned to the Provincial Court (Civil Division) immediately before the 1st
    day of September, 1990;

(b)  a deputy judge appointed
    under
section 32
; or

(c)
    the Small Claims Court Administrative Judge appointed under
section 87.2
. 2017, c. 2, Sched. 2,
s. 3
.

(6)

Jurisprudential principles

[20]

This court has considered ss. 327.1 and 24(1)
    and (2) of the
CJA
in connection with the jurisdiction to make the
    order in question here.

[21]

In practice, virtually all matters in the Small
    Claims Court are heard by deputy judges. In
Bruyea
the issue before
    this court was whether a deputy judge of the Small Claims Court has jurisdiction
    to make an order under s. 137.1
.
Writing for the court in
Bruyea
,
    Nordheimer J.A. reviewed the structure of the Small Claims Court and the
    specific provisions of s. 137.1.

At para. 12, he wrote the following:

Of importance for the current issue is the
    wording of s. 137.1(3) that reads:

On motion by a
    person against whom a proceeding is brought, a
judge
shall, subject to subsection (4), dismiss the proceeding against the person if
    the person satisfies the

judge
that the proceeding arises from an expression made
    by the person that relates to a matter of public interest. [Emphasis added.]

Subsections
    137.1(4), (6), (7), (8) and (9) also all refer to judge.

[22]

Nordheimer J.A. concluded that the use of the
    word judge without reference to deputy judge was a clear marker that deputy
    judges do not have jurisdiction to make the order. He found at para. 26 that the
    Small Claims Court must find its jurisdiction in a statute and therefore [a]bsent
    express statutory authority, the Small Claims [C]ourt has no jurisdiction.

[23]

Bruyea
was
    referred to by this court in
Nanda v. McEwan
, 2020 ONCA 431, where the
    Chief Justice concluded, at para. 12, that only a Superior Court judge had
    jurisdiction to make the order:

Subsequent to the
    motion judges decision, this court held in
Bruyea v. Canada (Veteran
    Affairs)
, 2019 ONCA 599,
147 O.R. (3d) 84
, that a deputy judge of the Small Claims Court has no jurisdiction
    to make an order under
s. 137.1
, as that jurisdiction rests with a judge, meaning a Superior
    Court judge.

[24]

In
Ontario College of
    Teachers
v. Bouragba
,
2021 ONCA 508, at paras. 6-8, this court, in considering the proper appeal
    route for a s. 137.1 order, also confirmed that only a Superior Court judge has
    jurisdiction to make the order:

Mr. Bouragba submits that an appeal of the
    Order lies to this court pursuant to
CJA
s.
    6(1)
(d), which states that an appeal lies to the Court
    of Appeal from  (d) an order made under
section
    137.1
.

We disagree.
An order made under
section
    137.1

within the meaning of
CJA
s. 6(1)(d) is an
    order made by a judge of the Superior Court of Justice. This is clear from
    the language of s. 137.1
, which authorizes a judge to make orders
    that: (i) dismiss a proceeding (
s. 137.1(3)
); (ii) refuse to dismiss a proceeding (
s.
    137.1(4)
); (iii) amend a pleading (
s. 137.1(6)
); (iv) award costs (s. 137.1(7)
    and (8); or award damages to the moving party (s. 137.1(9)). [Emphasis added.]

ISSUE ON APPEAL

[25]

The issue on appeal is whether the
    Administrative Judge of the Small Claims Court has jurisdiction to make an
    order pursuant to s. 137.1 of the
CJA
.
[3]

[4]

ANALYSIS

[26]

I come to the conclusion the Administrative
    Judge does not have the authority to make an order under s. 137.1. I say this
    for three reasons: (i) the authority was not given by statute; (ii) this court
    has determined that only Superior Court judges have the jurisdiction; and (iii)
    the s. 137.1 process is not consistent with the rules and procedures in the
    Small Claims Court.

[27]

I will address each reason in turn.

(7)

No statutory authority

[28]

In 2017, the
Burden Reduction Act
amended
    the
CJA
to create the position of Administrative Judge. Section 137.1 had
    been in effect for two years. Although the legislature made other consequential
    amendments to the
CJA
to reflect this change, the legislature did not
    amend
s. 137.1(3)
to include the Administrative
    Judge. For ease of reference, s. 137.1(3) provides:

On
    motion by a person against whom a proceeding is brought, a
judge
shall, subject to subsection (4), dismiss the
    proceeding against the person if the person satisfies the
judge
that the
    proceeding arises from an expression made by the person that relates to a
    matter of public interest. [Emphasis added.]

[29]

The respondent submits that this does not matter
    because, in effect, the Administrative Judge should be considered a provincial
    court judge. The
CJA
provides that her qualifications and compensation
    for the position are the same as a provincial court judge. Section 87.2(1)
    provides that the Administrative Judge must meet the qualifications set out in
subsection 42(2)
,
    which are the qualifications for a provincial court judge. Section 87.2(7) of
    the
CJA
provides that the Administrative Judge is deemed to be a
    provincial judge for purposes of compensation:

Compensation

(7) The
    salary, pension benefits, other benefits and allowances of the Small Claims
    Court Administrative Judge are subject to the recommendations of the Provincial
    Judges Remuneration Commission and, for the purpose, the Small Claims Court
    Administrative Judge
is deemed to be
a provincial
    judge under the framework agreement set out in the Schedule to this Act. 2017,
    c. 2, Sched. 2,
s. 18
. [Emphasis
    added.]

[30]

The reference to ss. 42(2) and 87.2(7) does not
    assist the respondent.
On the contrary, these amendments
    show that the legislature was alive to changes that were required as a result
    of s. 87.2 and chose not to amend the definition of judge in s. 137.1(3). This
    is a marker of an intent to omit the jurisdiction. By providing that the
    Administrative Judge have the same
qualifications
and be
paid
in accordance with provincial court judges, the Legislature did not expand
    jurisdiction to s. 137.1. Rather, for purposes of compensation only, the
    Administrative Judge is deemed to be a provincial court judge.

[31]

The respondent further submits that s. 24(2)
    provides the authority for the Administrative Judge to make orders under s.
    137.1. For ease of reference, I include the relevant portion of the section
    again:

(2) Despite subsection (1), a
    proceeding in the Small Claims Court may also be heard and determined by,

(a)  a provincial judge who
    was assigned to the Provincial Court (Civil Division) immediately before the
    1st day of September, 1990;
[5]

(b)  a deputy judge
    appointed under
section 32
; or

(c)
    the Small Claims Court Administrative Judge appointed under
section 87.2
. 2017, c. 2, Sched. 2,
s. 3
.

[32]

The respondent submits that the words may also be
    heard and determined by give the Administrative Judge authority to make orders
    under s. 137.1.

[33]

I do not agree.

[34]

First, s. 24 does not confer the authority to
    make orders under s. 137.1. Note that deputy judges are also included in s. 24(2)(b).
    If the respondents submission were correct, jurisdiction would also be
    conferred on deputy judges. We know from the analysis in
Bruyea
that
    deputy judges do not have jurisdiction.

[35]

Second,
the
respondents
    position would effectively expand the Administrative Judges authority beyond
    that of the Small Claims Court. For example, she would have the power to grant
    injunctions or appoint receivers. This too was considered and definitively
    dealt with in
Bruyea
,

at paras. 17 and 18:

Further, if one was to accede to the
    suggestion that the use of the term judge in the
CJA
was intended to
    include deputy judges, then that result creates difficulties with respect to
    other sections of the
CJA
. One such section is
s. 101(1)
of the
CJA
which reads:

In the
    Superior Court of Justice, an interlocutory injunction or mandatory order may
    be granted or a receiver or receiver and manager may be appointed by an
    interlocutory order, where it appears to a j
udge
of
    the court to be just or convenient to do so. [Emphasis added.]

Since the Small
    Claims Court is a branch of the Superior Court of Justice, if the term judge
    includes deputy judges, then
s. 101(1)
would give authority to deputy judges to grant injunctions or
    appoint receivers. To my knowledge, it has never been suggested that the Small
    Claims Court has ever had jurisdiction to grant interlocutory injunctions or to
    appoint receivers, nor am I aware of any case where the Small Claims Court has
    purported to exercise that jurisdiction. Indeed, in
936464 Ontario Ltd
    c.o.b. Plumbhouse Plumbing & Heating v. Mungo Bear Ltd.
(2003), 74
    O.R. (3d) 45 (Div. Ct.), it was concluded that the Small Claims Court is not
    empowered to grant any other form of equitable relief, such as injunctions:
    at para. 29.

[36]

This reasoning with respect to deputy judges
    applies equally to the Administrative Judge.

(8)

This courts decisions have settled the issue

[37]

The respondent submits that
Bruyea
is
    limited to deputy judges and does not apply to the Administrative Judge. As I
    have outlined, the analysis in
Bruyea
is equally applicable to the
    Administrative Judge.

[38]

In any event, post-
Bruyea
this
    court has stated that only Superior Court judges have the jurisdiction to make
    orders under s. 137.1: see
Nanda v. McEwan
, at para. 12

and
Ontario College of Teachers
, at para. 7
.

[39]

The Administrative Judge is not a Superior Court
    judge.

[40]

The respondent submitted that the endorsement of
    the Superior Court judge conferred jurisdiction on the Administrative Judge. I
    do not agree. In light of the jurisprudence, he had no authority to do so. In
    any event, it is clear from the record that the attendance in  what is usually
     a busy practice court involved scheduling. The jurisdiction issue was not
    brought to his attention.

[41]

I turn to the final reason that the
    Administrative Judge lacks jurisdiction.

(9)

Section 137.1 and the Rules of the Small Claims
    Court

[42]

A third reason confirms my view that the
    legislature did not intend to confer jurisdiction on the Administrative Judge.
    The s. 137.1 process is not consistent with the rules and procedures in the
    Small Claims Court.

[43]

The Small Claims Court is a branch of the
    Superior Court of Justice. The court embodies the foundations of access to
    justice: informality, affordability, timely resolution, accessibility for
    self-represented people and active judicial engagement. By providing access to
    justice, the court has an important role in the administration of justice for
    the province. The court handles nearly half of the civil disputes in the
    province. It provides a cost-effective forum for civil disputes involving less
    than $35,000. To achieve these objectives, all questions of fact and law are to
    be determined in a summary way. Rule 1.03(1) of the
Rules of the Small
    Claims Court
, under the
CJA
, provides:

These
    rules shall be
liberally construed
to
    secure the
just, most expeditious and least
    expensive determination
of every proceeding on its merits in
    accordance with section 25 of the
Courts of Justice Act.
O. Reg.
    258/98, r. 1.03 (1).

[44]

These hallmarks of the Small Claims Court, as
    enshrined in its rules, are incompatible with the provisions of s. 137.1. A s.
    137.1 analysis requires the detailed process of shifting burdens with respect
    to merits, proportionality and public interest, which involves exchange of
    affidavits and cross-examinations. Motions are not encouraged in the Small
    Claims Court. The
Rules of Small Claims Court
do not provide for
    cross-examination on affidavits. Under s. 137.1, costs of an unsuccessful
    motion are presumptively full indemnity. The limit on costs for a motion in
    Small Claims Court, absent special circumstances, is $100. The limit on costs
    after trial is 15% of the award. Small Claims Court jurisdiction is limited to
    $35,000. Contrary to these limits of Small Claims Court, s. 137.1 provides
    extensive powers with respect to damages.

[45]

The s. 137.1 motion must be heard within 60 days
    and stays the underlying action. Appeals go directly to the Court of Appeal. This
    does not comply with r. 1.03.(1) of the
Rules of the Small Claims
    Court
.

[46]

The Small Claims Court provides timely justice
    to litigants in matters under $35,000. I conclude that the legislature did not
    intend to inject complex interim proceedings into its summary process. Doing so
    would frustrate the objectives of the
Rules of the Small Claims Court
.

CONCLUSION

[47]

For these reasons, the appeals are allowed with
    costs to the appellants in the amount of $15,000 all inclusive.

Released: January 24, 2022 MLB

M.L. Benotto J.A.

I agree Grant Huscroft J.A.

I agree B.W. Miller J.A.

[1]
Commonly referred to as the Anti-SLAPP provision.

[2]
Official Report of Debates (Hansard) October 5, 2016

[3]

The respondent had submitted that the order under appeal was
    interlocutory and so the proper appeal route was to the Divisional Court. Because
    the issue engaged jurisdiction, the panel heard the appeal.

[4]
The respondent has framed the issue before this court as
    disrespectful to the Administrative Judge personally because it implies that
    she is not real judge. These submissions were ill founded. The issue is a
    question of law: jurisdiction.

[5]

This provision is of no moment since currently there are no
    such provincial court judges.


COURT OF APPEAL FOR ONTARIO

CITATION: Bouji v. Poonai, 2022 ONCA 49

DATE: 20220124

DOCKET: C69210

Strathy C.J.O., Harvison
    Young and Zarnett JJ.A.

BETWEEN

Hedia Bouji also known as Linda
    Bouji

Plaintiff (Respondent)

and

Karrunawatti
    Poonai also known as Kay Poonai

also known as Kay Persaud

Defendant (Appellant)

Eugene J. Bhattacharya and Mary
    Rodriguez, for the appellant

Madeleine Dusseault, for the respondent

Heard: January 17, 2022 by
    video conference

On appeal from the judgment of Justice Frederick
    L. Myers of the Superior Court of Justice, dated February 1, 2021, with reasons
    reported at 2021 ONSC 771.

REASONS FOR DECISION

[1]

The appellant appeals from a summary judgment that
    ordered her to pay the respondent $200,000, together with interest, under a
    promissory note dated August 31, 2016 and a related oral agreement that provided
    for interest on that note.

[2]

In 2016, the appellant introduced the respondent
    to an opportunity to invest $400,000 and acquire shares in Metrozen (Canada)
    Inc. (Metrozen) which had a real estate project located in Scarborough,
    Ontario. The appellant was told by the principal of Metrozen that the funds
    were required to bring a mortgage on the project back into good standing and to
    help keep it current.

[3]

The respondent was prepared to invest $200,000, but
    only if the appellant invested the same amount. The appellant agreed to do so,
    but as she did not have that amount on hand, the respondent agreed to advance
    it on her behalf. The motion judge found that the agreement between the
    appellant and respondent was that the appellant would receive three percent of
    the shares of Metrozen, and the respondent seven percent; the respondents larger
    percentage of shares was because she was putting up funds for the appellant.

[4]

On May 31, 2016, the parties went together to
    the respondents bank to arrange for the $400,000, and then to Metrozens lawyer,
    who deposited the funds into his trust account. In return, two documents were
    provided: (i) a note dated May 31, 2016 (the Metrozen Note) by which Metrozen
    and its principal promised to pay the respondents corporation $400,000 by
    December 1, 2016; and (ii) a Share Agreement whereby Metrozen and its principal
    agreed that seven percent of the shares of Metrozen would be transferred
    to the respondents corporation and the balance of the shares would be pledged
    as security for repayment under the Metrozen Note. Although the appellant is
    not mentioned in the Metrozen Note or Share Agreement, she witnessed the
    execution of both. No document mentioning the appellants three percent was
    provided by Metrozen.

[5]

On August 31, 2016, the parties executed, before
    a notary, the promissory note which is the subject of this action (the August Note).
    Under it, the appellant promised to pay to the respondent the sum of $200,000. The
    August Note recited that this amount had been loaned to the appellant by the
    respondent to purchase three percent of the shares of metro ZEN [
sic
]
    for the project located at 189-195 Milner Avenue, Scarborough, Ontario.

[6]

The parties later discovered that the funds that
    had been advanced on May 31, 2016 were misappropriated by Metrozen or its
    principal. The funds did not go into the Metrozen project, and neither of the
    parties received any shares in Metrozen or any payments from it in return for
    the advance.

[7]

The appellant paid interest to the respondent on
    the August Note at an orally agreed-upon rate until September 2018. From 2016
    to the time she stopped making payments, the appellant sent numerous texts and emails
    to the respondent that acknowledged her indebtedness under the August Note.

[8]

In 2019, the respondent commenced an action
    against the appellant to recover on the August Note and the oral agreement for
    interest. The respondent then successfully moved for summary judgment.

[9]

The motion judge rejected the appellants
    argument that there were genuine issues that required a trial. He specifically
    considered, and rejected, that genuine issues were raised by the three defences
    advanced by the appellant: (a) that the failure of the respondent to ensure both
    that the funds advanced went into the Metrozen project and that the appellant
    received shares in Metrozen meant there was no consideration for the August
    Note; (b) that repayment of the August Note was conditional upon the funds being
    used for Metrozens project and the appellants receipt of shares in Metrozen; and
    (c) that the August Note should be rescinded on the basis of misrepresentations
    made by the respondent that the appellant would receive an equal number of
    shares in Metrozen to those received by the respondent.

[10]

The motion judge found that the consideration
    for the August Note was the advance of funds, which had undoubtedly taken place.
    He found that since the appellant had attended with the respondent at
    Metrozens lawyers office to make the advance, participated in all steps, and had
    witnessed the documents Metrozen provided in return, she could not contend that
    her obligations to the respondent under the August Note, signed three months
    later, were somehow conditional on the way the funds would be handled by Metrozen
    or its lawyer, or on Metrozen fulfilling its obligations to deliver shares. He
    noted that neither party had control over Metrozen performing its obligations
    and that neither the appellant nor the respondent received the shares to which
    they were entitled. And he found that the appellants contention that there had
    been a misrepresentation by the respondent that the shares she was to receive would
    be equal to the percentage to be received by the appellant was foreclosed by
    the terms of the August Note that set out the appellants percentage and by
    the appellants knowledge of what had been provided by Metrozen on May 31, 2016.

[11]

On appeal, the appellant advances three
    arguments:

(a)

the motion judge failed to consider all of the
    evidence, specifically the transcripts of the cross-examinations of the parties,
    and thereby committed an error of law;

(b)

the motion judge failed to give adequate reasons
    as to why he declined to make credibility findings; and

(c)

the motion judge made palpable and overriding
    errors of fact.

[12]

With respect to the first two arguments, the
    appellant primarily relies on the statements of the motion judge that the
    respondent had met her burden through the documents and that he could interpret
    the August Note based simply on the timeline without making an express credibility
    finding. The appellant urges us to find that the motion judge did not consider the
    cross-examinations of the parties that had been conducted, and that his reasons
    are inadequate to explain why he was declining to make a credibility finding.

[13]

We reject these arguments.

[14]

The motion judge was not required to mention
    each item of evidence; we do not conclude from the absence of an express reference
    to the cross-examinations that he did not consider them. For example, the
    appellant places reliance on a statement in the respondents cross-examination to
    the effect that the parties were to be equal partners in the transaction.
    However, the reference is clear that the respondent meant that both would be
    equally responsible for the sum advanced to Metrozen. The respondent went on to
    explain that she was to receive a greater percentage of shares because she was
    advancing the appellants portion for her. There is nothing in this exchange inconsistent
    with the trial judges findings or that would suggest he lost sight of, or did
    not consider, this evidence.

[15]

Nor are the reasons inadequate, as they permit
    meaningful appellate review:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R.
    3, at paras. 30, 57. The motion judge explained why he could determine the
    issues without a credibility finding, namely that the documentary record was
    clear. Moreover, in addition to making the statements the appellant points to
    about why the case could be decided without an express credibility
    determination, the motion judge also indicated that the outcome would be no
    different if he decided the matter on the basis of credibility. He stated that,
    if I viewed it otherwise, the contemporaneous texts and emails from the [appellant]
    make the outcome clear and deprives her defences and evidence of credibility
    and [i]f I was not able to decide the case on the written record, I would have
    no hesitation rejecting the [appellants] evidence and arguments in face of her
    own documents, documented knowledge, and participation throughout. The motion
    judge gave detailed reasons for his conclusions.

[16]

Nor are we persuaded that the motion judge made
    any palpable and overriding errors of fact.

[17]

The divergence complained of by the appellant between
    the motion judges finding that she was promised a commission by Metrozen
    that was never paid, and the appellants evidence that she was offered a
    commission but never received it, is more superficial than real and could have no
    impact on the outcome.

[18]

We see no merit to the appellants complaint
    that the motion judge erred in finding there was a deal that the appellant was
    to receive three percent of the shares of Metrozen and the respondent seven
    percent. There was evidence to support that finding, including evidence of the
    respondent, documents that referenced the respondents seven percent that were witnessed
    by the appellant, and the reference to the appellants three percent in the August
    Note. The motion judge was alive, in making this finding, to the fact that
    Metrozens documents did not refer to the appellants three percent. But he appropriately
    considered that since the appellant participated in all the arrangements with
    Metrozen and witnessed documents, and since she signed the August Note, this
    did not detract from the appellants liability to the respondent, especially
    given that Metrozen misappropriated the advance and never delivered any shares
    to anyone.

[19]

Nor is there merit to the appellants complaint
    about the motion judges observation that by August 2019, the appellant was
    formulating her defence to payment of the amount due under the August Note. We
    see no error in that observation that could have affected the outcome. By that
    date, the appellant had ceased making payments under the August Note after having
    repeatedly acknowledged her liability to do so.

[20]

Accordingly, the appeal is dismissed.

[21]

If the parties are unable to agree on costs,
    they may make written submissions not exceeding three pages. The respondents
    submission should be delivered within ten days of the release of these reasons;
    the appellants submission should be delivered within ten days of those of the
    respondent.

G.R.
    Strathy C.J.O.

A. Harvison
    Young J.A.

B.
    Zarnett J.A.