COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2016 ONCA 534

DATE: 20160706

DOCKET: C58987

Pepall, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Uyen Tu Tran

Appellant

M. Mark Fahmy, for the appellant

Stephen Dawson, for the respondent

Heard: June 15, 2016

On appeal from the order of Justice Casimir N. Herold of the
    Superior Court of Justice, dated May 29, 2014.

ENDORSEMENT

[1]

The appellant appeals the dismissal of her application for
    post-forfeiture relief under s. 20 of the
Controlled Drugs and Substances
    Act,
S.C. 1996, c. 19,

(
CDSA
), for a property she
    jointly owned with her husband in Puslinch, Ontario.

[2]

For the following reasons, the appeal is dismissed.

Background

[3]

After the execution of general warrants at the Tran family home and an
    unoccupied Puslinch property that uncovered about 550 marijuana plants, the
    appellant and her husband were both charged with two counts of production of
    marijuana and possession of marijuana for the purpose of trafficking.

[4]

The Crown and the Trans engaged in resolution discussions. Mr. Tran and
    the appellant had separate counsel, and a standing agent for the Public
    Prosecution Service represented the Crown. It was agreed that Mr. Tran would
    plead guilty and that the Crown would withdraw the charges against the
    appellant in exchange for her agreement to not make submissions at the Crowns
    forfeiture proceeding. At the time, the appellants counsel, who is not the same
    counsel as on appeal, understood that there was a real possibility that she
    would be convicted based on the surveillance evidence and the contents of the
    properties and that she likely would have been facing a custodial sentence had
    she been convicted at trial.

[5]

The resolution went ahead. Mr. Tran pleaded guilty. He was sentenced to
    nine months imprisonment. The Crown brought its forfeiture application. That
    application resulted in 50 percent of the Tran family home, and the entire
    Puslinch property  which was found to have been purchased and used exclusively
    as a marijuana growing operation  being forfeited to the Crown. Of note, when
    considering the gravity of Mr. Trans offences, the forfeiture judge stated
    that Mr. Tran was solely involved in these operations. The appellant made no
    submissions at the Crowns forfeiture proceeding. Afterwards, the Crown
    withdrew all charges against her.

[6]

After the charges against her were withdrawn, the appellant brought an
    application for post-forfeiture relief under s. 20 of the
CDSA
8.5
    months after the forfeiture order. She sought a declaration that her interest
    in the Puslinch property was not affected by the forfeiture order. She did not
    challenge the forfeiture order relating to the Guelph residence. To further her
    submission that the resolution deal constituted a miscarriage of justice, evidence
    from the lawyer who represented her at the resolution discussions was adduced
    on consent. Her application was dismissed.

[7]

She now appeals. She argues that she met her burden for post-forfeiture
    relief. She also renews her submission that the resolution deal caused a
    miscarriage of justice. For the first time, she argues that her s.7 and s.12
    rights under the
Charter
were contravened.

Discussion

[8]

In our view, there is no merit to this appeal.

[9]

First, the application judge was precluded from granting post-forfeiture
    relief based on his finding that the appellant was fully complicit in the
    designated substance offence underlying the forfeiture order. Section 20(4)(a)
    of the
CDSA
provides that a judge may only grant post-forfeiture
    relief if she or he is satisfied that the applicant appears innocent of any
    complicity in any designated substance offence that resulted in the forfeiture
    of the property or of any collusion in relation to such an offence.

[10]

The
    application judges finding of complicity was well-supported by the record
    before him. The appellant was the joint owner of both properties, she and her
    husband were found on one of the properties at the time of the investigation,
    and something other than employment income enabled them to purchase the
    Puslinch property. She chose not to swear an affidavit or to give evidence at
    the hearing although expressly given the opportunity to do so. In addition, on
    consent, her former counsel gave evidence that the appellant was aware of the
    marijuana grow operations at both properties and hoped that the money generated
    would assist both her and her husband.

[11]

The
    application judge was entitled to make that a finding of complicity despite the
    forfeiture judges statement that Mr. Tran was solely involved in these
    operations. Read in context, this comment was referable to the limitations of
    Mr. Trans conduct, not the exclusion of the appellants.

[12]

Second,
    the appellant suffered no prejudice from the resolution deal  she was not
    entitled to relief at the Crowns forfeiture proceeding anyway since she was a
    person charged with that designated substance offence and was complicit. Rather
    than the deal with the devil that the appellant claims it to have been, it
    would seem that the resolution was one-sided in the appellants favour. She
    appears to have obtained a withdrawal of the charges against her, eliminating a
    very real risk of incarceration, in exchange for no consideration on her part. There
    was no miscarriage of justice or cruel and unusual treatment or punishment.

[13]

Lastly,
    s.7 and 12 of the
Charter
were not raised before either the forfeiture
    judge or the application judge. The record does not support any such
    disposition.

Disposition

[14]

Accordingly,
    the appeal is dismissed.

S.E.
    Pepall J.A.

M. Tulloch J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vincent, 2016 ONCA 580

DATE: 20160720

DOCKET: C61941

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Vincent

Appellant

Kenneth Vincent, acting in person

Emily Morton, duty counsel

Lisa Csele, for the respondent

Heard and released orally: July 12, 2016

On appeal from the sentence imposed on December 16, 2015
    by Justice J. Elliott Allen of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his sentence of two years less one day in a
    provincial reformatory to be followed by probation for two years on convictions
    for possession for the purpose of trafficking in heroin and oxycodone. He
    received concurrent sentences of three months followed by an equivalent period
    of probation for possession of stolen identification and careless storage of
    ammunition.

[2]

The appellant is an Aboriginal man, 43 years of age. He has a dated and
    unrelated record. At trial, Crown counsel sought a penitentiary sentence of
    four years. Trial counsel for the appellant sought a reformatory term followed
    by a period of probation and a recommendation that the sentence be served at
    the Ontario Correctional Institute.

[3]

The trial judge was impressed, as are we, by the appellants
    rehabilitative prospects and efforts. He recommended that the appellant be
    incarcerated at the Ontario Correctional Institute. Regrettably, that has not
    occurred.

[4]

In this court, Ms. Morton invites us to reduce the sentence imposed by
    the equivalent of the time spent in pre-trial custody grossed up by 1.5. The
    trial judge did so as defence counsel had submitted at trial.

[5]

In our view, the sentence imposed reflects no error in principle. The
    trial judge did not assign disproportionate weight to any sentencing objective,
    principle or aggravating or mitigating factor. This was, after all, commercial
    trafficking in Schedule 1 drugs, albeit by an addict to support his habit.

[6]

While leave to appeal sentence is granted, the appeal is dismissed. We
    reiterate the trial judges recommendation that the appellant be placed at the
    Ontario Correctional Institute and encourage him to continue his rehabilitative
    efforts to rid himself of his addiction.

David Watt J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ward, 2016 ONCA 568

DATE: 20160715

DOCKET: M46586 (C55519)

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Ward

Appellant

Brian Gover and Pam Hrick, for the moving party, Donald
    H. Crawford, Q.C.

Timothy Breen, for the appellant/responding party,
    Ronald Ward

Howard Leibovich, for the respondent, Her Majesty the
    Queen

Heard: July 6, 2016

Pardu J.A.:

[1]

The moving party, formerly trial counsel for the
    appellant, moves for the return of a document inadvertently sent by his own
    counsel to the appellants appeal counsel in the context of an allegation that
    the moving party provided ineffective assistance at trial. The moving party submits
    that the document is privileged, and that its inadvertent disclosure did not
    constitute a waiver of solicitor-client privilege.

[2]

The appellant argues the moving party has not
    established that the document is protected by solicitor-client privilege. In
    the alternative, he submits that a balancing of the interests of the appellant
    and the moving party favours abrogation of solicitor-client privilege because the
    contents of the document could be relevant to the moving partys credibility,
    in the event that a claim of ineffective assistance of trial counsel is pursued.

[3]

The Crown agrees with the moving party that the
    document is privileged and should be returned.

Facts

[4]

The motion proceeded on the basis of an agreed
    statement of facts.

[5]

In September 2011, a jury convicted the
    appellant of second degree murder. The moving party was his trial counsel
    (trial counsel). In 2012, at the request of the appellants appeal counsel,
    trial counsel provided some of his file materials to appeal counsel.

[6]

On January 23, 2014, appeal counsel advised
    trial counsel that he had concerns about the conduct of the defence at trial
    and requested specified additional material in order to assess whether to raise
    a claim of ineffective assistance of counsel at trial as a ground of appeal.

[7]

Appeal counsel referred in his letter to paragraphs
    5 and 6 of this courts
Procedural Protocol Re Allegations of
    Incompetence of Trial Counsel in Criminal Cases (the Protocol),

which provide:

5.
Transfer of Trial File to
    Appeal Counsel
: Trial counsel shall (a) upon receipt of a written request
    by appeal counsel and a written direction of the appellant; or (b) upon receipt
    of any public document that contains an allegation of professional incompetence
    by trial counsel in his or her representation of the appellant, or an
    allegation that the conduct of trial counsel otherwise contributed to a
    miscarriage of justice, whichever event is earlier, forthwith transfer the
    entire file to appeal counsel. In the event that trial counsel wishes to raise
    any objection to so transferring the file, trial counsel may bring an
    application, as soon as possible, before the case management Judge.

6.
Access to the Trial File by
    Trial Counsel
:  If trial counsel wants to keep a copy of all, or any
    portion, of the trial file before transferring this file to appeal counsel,
    trial counsel may (at his or her own expense) make copies of whatever documents
    he or she wishes from the file. In addition, if trial counsel wants access to
    the file in connection with the appellant's case after it has been transferred
    to appeal counsel, appeal counsel must facilitate this access to the entirety
    of that file in a timely way, and must permit trial counsel to make copies (at
    his or her own expense) of whatever documents he or she wishes from the file.

[8]

On February 11, 2014, trial counsel responded,
    asking for particulars of the ineffective assistance allegation, referring to
    paragraphs 3 and 4 of the Protocol:

3.
Obligation to
    Investigate-Fair Opportunity to Respond
: Before any appeal counsel draws
    any final conclusion as to whether or not to make an allegation, on appeal,
    that trial counsel performed in a manner that amounted to professional
    incompetence, or otherwise contributed to a miscarriage of justice: (a) Appeal
    counsel should satisfy him or herself, by means of personal investigations or
    inquiries, that there is some factual foundation for this allegation apart from
    the instructions of the appellant. See:
R. v. Elliott
(1975), 28 C.C.C. (2d) 546 (Ont. C.A.) at p. 549. Appeal counsel
    should make these investigations or inquiries as soon as possible. (b) Appeal
    counsel should also provide trial counsel with informal notice of the general
    nature of the potential allegations concerning the professional performance of
    trial counsel, and should give trial counsel a reasonable opportunity to
    respond to those potential allegations. In this way, trial counsel will have a
    fair opportunity to respond to the potential allegations before they are made
    in any public forum.

4.
Notice of Allegations to
    Trial Counsel
: Whenever appeal counsel decides to publicly assert by means
    of filing with the Court some public document such as a Notice of Appeal or
    Supplementary Notice of Appeal or Appellant's Factum that contains an assertion
    that trial counsel performed in a manner that amounted to professional
    incompetence or otherwise contributed to a miscarriage of justice, appeal
    counsel must first provide trial counsel with a copy of that document, and any
    other subsequent document that contains any further details of that assertion.
    In this way trial counsel will be fully apprised, in a timely way, of all of
    the allegations being made with respect to his or her professional performance
    in his or her representation of the appellant at trial.

[9]

Trial counsel indicated that he would be unable
    to instruct his own counsel and determine his own course of action without
    knowing the allegations against him.

[10]

On February 12, 2014, appeal counsel responded
    that no allegation of ineffective assistance had yet been made, but that
    examination of the requested material would assist in determining whether to raise
    that issue.

[11]

On February 13, 2014, trial counsel again wrote
    to appeal counsel to ask for specifics of the concerns about the conduct of the
    defence, and indicated he would then be able to consider the request for
    further trial materials.

[12]

On March 14, 2014, appeal counsel sent trial
    counsel a direction signed by the appellant authorizing release of the trial
    file.

[13]

On April 9, 2014, trial counsel responded that
    he was organizing the trial file and again requested particulars of the
    ineffective assistance allegation.

[14]

On May 2, 2014, a case management judge of this
    court directed trial counsel to turn over his file to appeal counsel by May 15,
    2014. On May 5, 2014, appeal counsel forwarded to trial counsel a copy of this
    direction.

[15]

On May 6, 2014, trial counsel provided the
    remaining contents of his file to appeal counsel, noting that despite several
    requests, he still had no particulars of the grounds for the allegation of ineffective
    assistance.

[16]

On or around May 12, 2014, trial counsel
    retained Anil Kapoor and Lindsay Daviau of Kapoor Barristers to represent his
    interests in relation to the allegation of ineffective assistance and to assist
    in proceeding in accordance with this courts Protocol.

[17]

On May 14, 2014, Mr. Kapoor advised appeal
    counsel that he had been retained by trial counsel and asked that all further
    communications be sent to him.

[18]

On May 14, 2014, appeal counsel advised Mr.
    Kapoor by letter that he had reviewed the materials he had received from trial
    counsel. He asked that trial counsel produce all materials that would reflect trial
    counsels review of the brief and preparation for trial. He further asked that
    if such documentation did not exist, trial counsel provide a letter describing
    what work was done in preparation for trial and an explanation for the absence
    of any notes. This was the first occasion on which appeal counsel requested
    from trial counsel information beyond documentation that was created
    contemporaneous to the trial proceedings.

[19]

On May 22, 2014, Ms. Daviau sent trial counsel a
    copy of appeal counsels May 14, 2014 letter by fax.

[20]

On May 28, 2014, trial counsel responded with a
    letter to Mr. Kapoor. It is this letter (the Letter) that is now the subject
    of the solicitor-client privilege dispute.

[21]

On June 4, 2014, the Letter was inadvertently
    included in a package Ms. Daviau sent to appeal counsel that contained further
    materials from trial counsels file, provided pursuant to the Protocol.

[22]

On July 21, 2014, appeal counsel advised Mr.
    Kapoor for the first time of his specific concerns regarding trial counsels
    conduct, including that he did not object to the admission of two witnesses
    evidence concerning the appellants pre-offence conduct. Appeal counsel claimed
    that evidence strongly suggested the appellant was involved in drug trafficking.

[23]

On August 7, 2014, Ms. Daviau provided trial
    counsels responses to the questions appeal counsel raised in his July 21, 2014
    letter. Among other things, Ms. Daviau conveyed that trial counsel had
    made a tactical decision not to object to the evidence of the two witnesses
    concerning the appellants pre-offence conduct, and that there was no evidence
    before the jury that the appellant was trafficking in drugs or at all involved
    in the drug subculture.

[24]

On June 10, 2015, trial counsel swore an
    affidavit in order to respond to the allegation of ineffective assistance. In
    the affidavit, he swore, among other things, that there was no evidence before
    the jury that the appellant was trafficking in drugs or at all involved in the
    drug subculture.

[25]

On November 25, 2015, appeal counsel phoned Ms.
    Daviau as she was preparing trial counsel for his cross-examination on his
    affidavit the next day. Appeal counsel informed Ms. Daviau that he had come
    across the Letter in the materials Ms. Daviau provided on June 4, 2014. She
    immediately asserted solicitor-client privilege over the Letter.

[26]

On November 26, 2015, and pursuant to paragraph
    15 of the Protocol, appeal counsel cross-examined trial counsel on his
    affidavit sworn June 10, 2015. Trial counsel asserted privilege over the
    Letter. Appeal counsel did not rely upon the Letter in his cross-examination of
    trial counsel, as he had agreed not to do so until the privilege issue was
    resolved.

[27]

In a letter dated November 26, 2015, Mr. Kapoor
    stated that he and Ms. Daviau had each advised the prior day that the
    Letter was inadvertently disclosed, that the inadvertent disclosure did not
    constitute a waiver of solicitor-client privilege, and that trial counsel
    asserted his privilege over the Letter. Mr. Kapoor asked that all copies
    be returned to his office by November 30, 2015. Failing this, Mr. Kapoor advised
    that he would bring an application to a panel of this court, seeking an order
    that the Letter be returned.

[28]

On November 30, 2015, appeal counsel expressed
    his view that the Letter was not covered by solicitor-client privilege, as
    there was no expectation that the information contained therein would remain
    confidential. Alternatively, assuming the Letter was privileged and disclosed
    through inadvertence, he took the position that the determination of the
    admissibility of the Letter required an exercise of judicial discretion. Appeal
    counsel advised that he believed the best course of action would be to schedule
    an application before a panel of this court to determine the claim of
    privilege.

[29]

While appeal counsel had forwarded a copy of the
    Letter to the Crown lawyer responding to the appellants murder appeal, Crown
    counsel returned his copy to Ms. Daviau. There is no evidence that any other
    copy of the Letter was disclosed to anyone outside the solicitor-client
    relationship between trial counsel and his counsel.

Analysis

[30]

I conclude that the Letter is protected by
    solicitor-client privilege, that its inadvertent disclosure did not amount to trial
    counsels waiver of privilege, and that privilege should not be set aside in
    this case.

[31]

Communications between a lawyer and his or her client
    are privileged where they involve the giving or seeking of legal advice and where
    the parties intend them to be confidential:
Solosky v. The Queen
, [1980] 1 S.C.R. 821, at p. 837. The client, not the lawyer,
    holds the privilege and only he or she can waive it:
R. v. McClure
, 2001 SCC 14, [2001] 1
    S.C.R. 445, at para. 37.

[32]

Where solicitor-client privilege has not been
    waived, the court may also consider whether privilege should yield in order to
    allow an accused to make full answer and defence:
R. v. Brown
, 2002 SCC 32, [2002] 2 S.C.R. 185, at paras. 5, 28, 45. However, solicitor-client
    privilege is almost absolute, and may be set aside only in very rare
    circumstances:
McClure
, at paras. 5, 35. As
    the Supreme Court stated in
McClure
, at para.
    35: [S]olicitor-client privilege must be as close to absolute as possible to
    ensure public confidence and retain relevance. As such, it will only yield in
    certain clearly defined circumstances, and does not involve a balancing of
    interests on a case-by-case basis.

[33]

Here, the content of the letter and the context
    make it clear that trial counsel sent the letter to his own counsel in the
    course of seeking advice about how to respond to appeal counsels requests and
    how to comply with this courts Protocol. I infer from this same content and context
    that trial counsel intended the communication to be confidential. Trial counsel
    is no less entitled to the benefit of solicitor-client privilege because he was
    attempting to comply with the Protocol.

[34]

The appellant concedes that the disclosure to
    appeal counsel was inadvertent, and that trial counsel did not waive solicitor-client
    privilege. This was an appropriate concession.

[35]

Inadvertent disclosure does not necessarily mean
    that privilege has been waived. While waiver of solicitor-client privilege can
    be express or implied, whether privilege has been waived by inadvertent
    disclosure is a fact-specific inquiry, which may include consideration of the
    following factors:

·

The way in which the documents came to be released;

·

Whether there was a prompt attempt to retrieve the documents after
    the disclosure was discovered;

·

The timing of the discovery of the disclosure;

·

The timing of the application;

·

The number and nature of the third parties who have become aware of
    the documents;

·

Whether maintenance of the privilege will create an actual or
    perceived unfairness to the opposing party; and

·

The impact on the fairness, both actual or perceived, of the
    processes of the court.

See
Airst v. Airst
(1998), 37 O.R. (3d) 654 (C.J. (Gen. Div.)), at pp. 659-60; and
Chapelstone
    Developments Inc. v. Canada
, 2005 NBCA 96, 191 C.C.C.
    (3d) 152, at para. 55, leave to appeal to SCC refused, [2005] S.C.C.A. No. 38.

[36]

Having considered the above factors, I conclude
    that solicitor-client privilege was not waived in this case.

[37]

Nor should it be set aside. In
McClure
, the Supreme Court held that solicitor-client privilege may only be
    set aside very rarely,
where core issues going to the guilt of the
    accused are involved and there is a genuine risk of a wrongful conviction:
    para. 47.
Under the innocence at stake test, the accused must
    first establish that the information sought from the solicitor-client
    communication is not available from any other source and that he or she is
    unable to raise a reasonable doubt as to guilt in any other way. If that
    threshold question is satisfied, the court will then consider whether there is
    an evidentiary basis upon which to conclude that a communication exists that could
    raise a reasonable doubt as to the accuseds guilt, and if so, whether the
    communication is likely to raise a reasonable doubt. See
McClure
, at paras. 46-51; and
Brown
, at
    paras. 4, 29.

[38]

There is no basis to abrogate the
    solicitor-client privilege here. Innocence is not at stake. The contents of the
    Letter are marginally relevant to the ineffective assistance of counsel claim,
    if pursued. The panel ultimately hearing the appeal will be able to come to its
    own opinion as to possible inferences a jury could have drawn from the evidence
    led at trial.

Disposition

[39]

I would accordingly grant the relief sought by
    the moving party  namely, an order:

·

Declaring that the Letter is protected by solicitor-client privilege;

·

Prohibiting the Letter or its contents from being used in any way in
    the appellants appeal; and

·

Requiring appeal counsel to return his copy of the Letter to the
    moving party immediately.

[40]

This is not a case for costs, given that the
    issue arose as a result of the moving partys own counsels error.

Released: (E.E.G.) July 15, 2016

G.
    Pardu J.A.

I
    agree Paul Rouleau J.A.

I
    agree C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Wright, 2016 ONCA 546

DATE: 20160708

DOCKET: C59662

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Winston Wright

Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

Greg Skerkowski, for the respondent

Heard: April 27, 2016

On appeal from the conviction entered on May 14, 2014 by
    Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

Following a jury trial, the appellant was acquitted of first degree
    murder but convicted of manslaughter. He appeals his conviction and advances
    two issues on appeal.
[1]
First, he submits that the trial judge erred in his instructions to the jury on
    self-defence. Second, he submits that, in the absence of expert evidence, the
    trial judge erred by inviting the jury to speculate or take improper judicial
    notice about the inferences to be drawn from a lack of bruising on the deceaseds
    wrist.

A.

Background

[2]

The deceased was the appellants brother. The appellant acknowledged at
    trial that he shot the deceased. As part of his defence, he led evidence of a
    longstanding acrimonious relationship between him and his brother, including
    evidence of multiple death threats made against him by the deceased. The major issues
    at trial included self-defence and provocation.

[3]

According to the appellant, on the day of the shooting, the deceased
    went to the appellants in-laws home and threatened the appellant and his
    family. Later in the day, the appellant drove to a parking lot where he saw the
    deceased and several mutual friends leaving a pick-up soccer game. The
    appellant claimed he had not expected the deceased to be there, but when he saw
    him, he decided to confront him to convince the deceased to stop his
    threatening behaviour.

[4]

The appellant kept a gun in his SUV for protection. According to the
    appellant, after arriving in the parking lot, he saw the deceased arm himself
    with a knife. The appellant got out of his SUV with his gun in his hand. A mutual
    friend intervened and persuaded the appellant to get back in the SUV. However,
    the deceased rushed at the SUV with the knife raised. According to the
    appellant, the deceased thrust the knife downwards at him through the open
    window of the SUV in an effort to stab him. The appellant grabbed the
    deceaseds wrist and there was a momentary struggle. Within seconds, the
    appellant grabbed the gun from the passengers seat and fired a single shot.

[5]

The pathologist who conducted the autopsy testified at trial and
    confirmed that the deceased died from a single gunshot wound to the chest,
    which struck his heart, went through his liver and lodged itself in the back of
    his ribs, causing significant internal bleeding. Death ensued in the span of
    seconds. In response to questions from the Crown, the pathologist confirmed
    that he examined the extremities of the deceaseds body, including the wrist
    area and observed no visible injuries.

[6]

While some eyewitnesses supported the appellants evidence that the
    deceased approached the appellants vehicle with the knife raised over his head,
    none could confirm that the deceased made a stabbing motion at the appellant
    inside the SUV. One eyewitness, the mutual friend who tried to de-escalate the situation,
    disputed the appellants claim that the deceased made a stabbing motion inside
    the SUV.

B.

Discussion

(1)

Jury instructions
    on self-defence

[7]

The first issue raised by the appellant
    is that the trial judge erred in his instructions on self-defence

by telling the jury that self-defence was not available to
    the appellant if he was using the gun to injure [the deceased]. According to
    the appellant, in giving this instruction, the trial judge erred by improperly
    adding a requirement that, to qualify for self-defence, an accused must not
    have an intent to injure.

[8]

We did not call on the Crown to respond
    to this issue. The appellants argument was premised on considering the
    impugned phrase in isolation and out of context.

[9]

The trial judge used the impugned phrase
    in the section of his instructions explaining the requirement that the
    appellants actions had to be for the sole purpose of defending himself from
    the use of force. He explained the defence position that that was the case and
    the Crowns position that the appellant shot his brother to settle a score.

[10]

In summarizing, the trial judge said,
    [i]f [the appellants] purpose in using the gun was solely to protect himself
    against force being used against him, the requirement of a defensive purpose
    would be met. He then instructed the jury that if the appellant was using the
    gun to injure [his brother], or to get even with him, or to settle a score with
    [him], the requirement that the force be used solely for the purpose of
    defending and protecting himself would not be met.

[11]

Read in context, we see no possibility
    that the jury would have interpreted the phrase as the appellant contends
    that is, as meaning that self-defence would not be available simply because the
    appellant knew and intended that his actions would injure the deceased. Rather,
    the phrase properly conveyed the meaning that self-defence would not be
    available if the appellants use of force was for a purpose other than protecting
    himself.

(2)

Jury instructions about lack of bruising

[12]

The second issue raised by the
    appellant is that, in the absence of expert evidence, the trial judge erred by
    inviting the jury to speculate or take improper judicial notice about whether
    the appellants claim that he grabbed the deceaseds wrist would have caused
    bruising.

[13]

As noted above, the Crown led evidence
    from the pathologist who conducted the autopsy of the deceased that he did not
    find any bruising on the deceaseds wrist. By the time the pathologist
    testified, the defence had made clear, through cross-examination of a previous
    witness, its position that the deceased attempted to stab the appellant while
    the appellant was sitting in his SUV. Although the pathologist confirmed he
    found no marks or bruising on the deceaseds wrist, neither the Crown nor the
    defence asked the pathologist whether bruising would be likely in the
    circumstances posited by the defence  that is, where the deceased was shot and
    killed very soon after the appellant claimed he grabbed the deceaseds wrist.

[14]

Both the Crown and the defence spoke
    about this subject in their closing addresses to the jury.

[15]

Defence counsel addressed the jury
    first. He approached the subject by reminding the jury that in his opening
    address the Crown told them his case had little to do with CSI. Defence
    counsel commented on another subject and then said, that doesnt mean the
    Crown wont try to pull a little CSI on you. Defence counsel cautioned the
    jury that the Crown would likely ask them to have an Ah-ha moment about the
    lack of bruising on the deceaseds wrist. However, he said there was one little
    problem: if the deceased immediately dropped like a ragdoll because he was
    shot in the heart and it stopped pumping, how could there be bruising from
    blood being pumped into that area? How could there be bruising without blood
    flow?

[16]

In his closing address, Crown counsel
    at trial invited the jury to consider the amount of force used by the appellant
    during the encounter, which he said the appellant had described as a kind of a
    fight for his life. Crown counsel asked the jury to consider whether they would
    expect to see some kind injury in those circumstances.

[17]

In the section of his jury instructions
    addressing whether the appellant believed on reasonable grounds that force was
    being used against him, the trial judge instructed the jury, in part, to
    consider the evidence of lack of bruising. However, he also told them no
    evidence had been led concerning whether bruising would be likely to ensue if
    events occurred in the manner described by the appellant and that they may not
    find the evidence of lack of bruising of much assistance. The impugned aspects
    of this instruction are underlined:

[The appellant] says that [the
    deceased] leaned in through the window, while at the same time making a
    downward stabbing motion with the knife in his right hand. [The appellant] says
    that he fell backwards in the drivers seat as this happened, raised his left hand
    and grabbed the wrist of [the deceased]s right arm to stop the stabbing
    motion.

In considering that evidence, youll want to take into
    account the size of the knife, and the blade, and it has been described to you.
    The fact that [the appellant] did not sustain any cuts to his arm, or
    otherwise, and that the pathologist who conducted the autopsy did not find any
    bruising or marks on the wrist or arm of [the deceased].

Now, no evidence was led as to whether the grabbing of [the
    deceased]s wrist in those circumstances would likely produce bruising. So, it
    may well be that if the events took place as [the appellant] says they did, no
    bruising or marks would have been caused to [the deceased]. You may then find
    this aspect of the evidence does not assist you in deciding what actually
    happened.
As with all matters of fact, youre entitled to use your own
    common good sense and experience in deciding these matters.
[Emphasis
    added.]

[18]

During mid-charge discussions, but
    before this aspect of the trial judges charge was given, the Crown raised a
    concern about defence counsels closing, claiming that when defence counsel
    spoke about no blood flow leading to no bruising, defence counsel had
    effectively been giving medical evidence. Crown counsel also claimed that defence
    counsels evidence was not accurate.

[19]

In response to the Crowns submissions,
    the trial judge referred to his proposed instructions and said he did not know
    what an expert might have said about the point. However, he said he accepted
    that the appellants blood flow did not stop until after the gun was fired, and
    that that was some seconds after the grabbing. He said he did not know how
    quickly bruising appears and he was going to leave his instructions as they
    were. The defence made no comment and the Crown did not pursue the issue
    further.

[20]

The appellant acknowledges that, in some circumstances, it may be open
    to a trier of fact to consider the likelihood of bruising as a matter of
    ordinary human experience and common sense. However, he argues that, in this
    case, because the deceased was killed soon after the appellant claims he
    grabbed the deceaseds wrist, expert evidence was necessary to assist the jury
    with the inferences that could be drawn from the lack of bruising and
    specifically concerning the likelihood that bruising would occur. He submits
    that the trial judge erred both in instructing the jury that they would want to
    consider the evidence concerning lack of bruising and in telling them they were
    entitled to use their common sense and experience to determine the matter.

[21]

The appellant claims that the trial judges error is significant
    because the jury may have used the evidence of lack of bruising to reject the
    appellants claim of self-defence when there was no expert evidence to assist
    them with the likelihood that bruising would occur where the deceased was
    killed virtually instantaneously after being grabbed.

[22]

We do not accept the appellants
    submissions on this point for three reasons.

[23]

First, considering the closing
    addresses of counsel and the whole of the trial judges jury instructions, we
    see no realistic possibility that the jury would have drawn any inferences
    concerning whether the deceased suffered bruising after death.

[24]

In this regard, we note that the Crown
    did not invite the jury to draw any inferences concerning whether bruising
    would have arisen after death. Rather, the Crown asked the jury to consider the
    amount of force the appellant used, and whether this amount of force would have
    caused bruising. Crown counsel said this in the context of defence counsels
    having raised the instantaneous death issue. On our reading of the Crowns
    closing, the Crown did not invite the jury to make a finding concerning whether
    bruising would have arisen after death.

[25]

As for the trial judges jury
    instructions, after telling the jury that they should consider the evidence of
    lack of bruising or marks, the trial judge cautioned them that no evidence had
    been called concerning the likelihood of bruising, and that it may well be
    that if the events took place as the appellant described no bruising or marks
    would occur. He then instructed the jury that the evidence of lack of bruising
    may not assist them in deciding what actually happened.

[26]

Although the trial judge left it for
    the jury to determine whether the evidence concerning lack of bruising assisted
    them, his instruction was appropriate because in the context of the evidence it
    was open to the jury to consider whether bruising would likely have occurred
    during the grabbing as described by the appellant. Moreover, when these
    particular instructions are considered in the context of the standard cautions
    against speculation that appear in both the trial judges general instructions
    and in his instructions concerning circumstantial evidence, we see no realistic
    possibility the jury would have speculated about the likelihood of bruising
    after the deceaseds death.

[27]

Second, experienced defence counsel did
    not raise the objection at trial that is now raised for the first time on
    appeal. Although not determinative, we take that into consideration in
    assessing whether the trial judges instructions to the jury were fair and
    complete: see
R. v. Jacquard
, [1997]
    1 S.C.R. 314, 113 CCC (3d) 1, at paras. 35-37;
R. v. Bradey
, 2015 ONCA 738, 331 C.C.C. (3d) 511, at para. 186.

[28]

Third, in our view, it is clear that
    experienced defence counsel at trial made a tactical decision about how to
    respond to the evidence of lack of bruising. Having made clear the core of the defence
    position concerning how the appellant claimed events unfolded through
    cross-examination of earlier witnesses, defence counsel did not follow up on
    the Crowns question concerning whether any bruising was found on the
    deceaseds wrist by asking the pathologist whether bruising would have been
    likely in circumstances where death ensued soon after an extremity was grabbed.
    Nor did he ask subsequently for leave to have the pathologist recalled so he
    could clarify this issue. Nonetheless, in his closing address to the jury,
    defence counsel suggested that bruising would be unlikely once blood flow had
    stopped and he invited the jury to consider whether the Crown was pull[ing] a
    little CSI on them.

[29]

Having made this tactical choice about
    how to address the evidence of lack of bruising  and not having objected to
    the trial judges instruction  and in the absence of a fresh evidence
    application or a ground of appeal relating to incompetence of counsel  and in
    the light of our other conclusions  we fail to see any basis on which the
    appellant can now complain about the trial judges jury instructions.

Disposition

[30]

Based on the foregoing reasons, the
    appeal is dismissed.

Karen
    M. Weiler J.A.

Janet Simmons J.A.

Gloria Epstein J.A.

[1]

In his factum, counsel for the appellant raised three
    issues on appeal. At the oral hearing, counsel abandoned the third issue raised
    in his factum.


COURT OF APPEAL FOR ONTARIO

CITATION: Seto v. Peel Condominium Corporation No. 492, 2016
    ONCA 548

DATE:  20160708

DOCKET: C61424

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Karen Seto, Patrick Wong and Philip Lam

Respondents

and

Peel Condominium Corporation No. 492

Appellant

Carol A. Dirks, for the appellant

Bradley Chaplick, for the respondents

Heard:  June 21, 2016

On appeal from the orders of Justice James F. Diamond of
    the Superior Court of Justice, dated November 12, 2015, with reasons reported
    at 2015 ONSC 6785; December 15, 2015; and January 20, 2016, with reasons
    reported at 2016 ONSC 477.

ENDORSEMENT

[1]

The application judge found that the appellant condominium corporations
    declaration required the costs of waste disposal for food court waste to be
    paid as common expenses by all unit owners, not by the respondent owners of
    food court units. It is not contested that the cost of removing and disposing
    of food court garbage is a major budget item and that the food court units
    generate significantly more garbage than the other units and the common
    elements.

[2]

The evidence shows that charges for those costs had been levied by the
    condominium corporation on the owners of food court units for many years
    without apparent complaint. That changed in 2012 when a large increase was
    levied upon the advent of a new board of directors.

[3]

The case turns on the interpretation of the condominiums Declaration.

[4]

The food court itself is described in the Declaration as an exclusive
    use common element. Section 12(c) provides:

(c) The Owners of Units 23 to 30, inclusive, Level 1, shall
    jointly have the right to the exclusive use of exclusive use Common Area A-1,
    Level 1, which shall be for the purpose of providing a seating area portion of
    the Food Court Area for which such Units shall be utilized.
The Owners of
    Units 23 to 30, inclusive, Level 1, shall be responsible for all costs of
    cleaning, furnishing, maintaining, policing and managing the Food Court Area.
Specifically allocated to Units 23 to 30, inclusive, Level 1, shall be the
    separate costs incurred by the Corporation
for such purposes
, which
    shall be allocated as a separate item of Common Expense exclusive to those
    Units. [Emphasis added.]

[5]

Schedule E of the Declaration is titled Specification of Common
    Expenses. Clause (m) of Schedule E provides:

(m) All costs of maintaining, repairing, cleaning, policing and
    managing the Food Court area shall be allocated separately and equally to each
    of the Owners of Units 23 to 30, inclusive, Level 1.

[6]

Clause (b)(vi) of Schedule E provides:

(b) All sums of money payable by the Corporation on account of
    any and all public and private suppliers ... including, without limiting the
    generality of the foregoing, monies payable on account of:

(vi) Waste disposal for the Common Elements only.

[7]

Finally, s. 15 of the Declaration provides, in part:

All refuse and garbage must be retained by each Owner within
    such Owners Unit and shall be the responsibility and obligation of each Owner
    to dispose of such refuse and garbage on a timely basis and in accordance with
    the Rules of the Corporation in this regard.

[8]

The application judge stated that his task was to reconcile these
    provisions and, relying on clause (b)(vi) of Schedule E, concluded that the
    specific cost of waste disposal from common elements, including the Food Court
    seating area, is a regular common expense to be shared among all Mall unit
    owners.

[9]

The condominium corporation asserts that the references to cleaning in
    s. 12(c) of the Declaration and in clause (m) of Schedule E give the
    corporation authority to charge the respondents directly for disposal costs for
    waste from the food court seating area. However, neither of those provisions
    deals expressly with such costs, while paragraph (b)(vi) of Schedule E does
    so by referring to Waste disposal for the Common Elements only. The food
    court seating area is plainly a common element. On that basis the application
    judge ruled in favour of the food court unit owners.

[10]

The application judge's ruling is one of mixed fact and law that
    attracts deference on appeal:
Sattva Capital Corp. v. Creston Moly Corp
.,
    2014 SCC 53, [2014] 2 S.C.R. 633. The appellant has not demonstrated that the
    application judge made a palpable and overriding error or an extricable error
    of law in his interpretation of the declaration.

[11]

The appellant argues that the application judge erred in law by failing
    to consider the past practice of charging waste disposal fees directly to the
    food court unit owners when interpreting the provisions of the declaration.

[12]

We disagree. The application judge did refer to the past practice at
    para. 22 of his reasons where he rejected the submission that the respondents
    had lost the right to complain of the charges through acquiescence.  The
    argument advanced on appeal has no merit since there is no evidence regarding
    the genesis of this conduct or what inferences should be drawn from it that
    would contradict the plain language of the declaration.

[13]

Accordingly, we reject the contention that the application judge's
    interpretation should be set aside on appeal.

[14]

The appellant points out that in the remedy provided, the application
    judge effectively excused the food court unit owners from having to pay for the
    disposal of their own individual unit wastes at their own costs, despite the
    express provision of s. 15 of the declaration. This was a clear error. We are
    unable to determine from the record, with any degree of confidence, what the
    amount of this expense might be. We therefore remit the determination of the
    amount of the expense associated with the disposal of waste for the individual
    food court units to the application judge, in the event that the parties are
    unable to settle the issue.

[15]

Accordingly, the appeal is allowed in part.

[16]

Costs of this appeal to the respondents fixed in the amount of $6,500.
    This amount takes account of the marginal success of the appellant.

Robert
    J. Sharpe J.A.

P.
    Lauwers J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Shahinjou (Re), 2016 ONCA 556

DATE: 20160711

DOCKET: C61347

Rouleau, Hourigan and Pardu JJ.A.

IN THE MATTER OF: Taimaz Shahinjou

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Luke Schwalm, for the Attorney General of Ontario

Janice E. Blackburn, for the Waypoint Centre for Mental
    Health Care

Heard: July 7, 2016

On appeal from the disposition of the Ontario Review
    Board dated, October 6, 2015.

ENDORSEMENT

[1]

The appellant appeals from the Ontario Review Boards decision wherein
    it found that the appellant continued to pose a significant threat to the
    safety of the public and ordered his continued detention at the Waypoint Centre
    for Mental Health Care.

[2]

The appellant advances two grounds of appeal.

[3]

The first ground is that the Board failed to inquire into the hospitals
    failure to adequately assess the appellants diagnosis and to conduct
    additional psychological testing.

[4]

We would not give effect to this ground of appeal. This is not a case
    where there was a treatment impasse that would require such an inquiry. Over
    the course of the year preceding the hearing, there had been progress in coming
    to a more definitive diagnosis of the appellants condition. Further, in the
    three months prior to the hearing, his treating physician had noted greater
    cooperation from the appellant placing him in a better position to progress in
    his treatment. The treating physician had also outlined proposed testing and
    treatment changes which would be implemented in the month following the
    hearing.

[5]

The second ground of appeal is that the Board did not take into account
    all of the relevant factors and failed to impose the necessary and appropriate
    disposition. In the appellants submission, he should have been transferred to
    a facility in the Greater Toronto Area. The appellant has a very supportive
    family and moving to the Greater Toronto Area would bring him closer to his
    family. Further, the records showed that when the appellant had been housed in
    a less secure facility he had shown a greater willingness to participate in
    group programming than in Waypoint.

[6]

We see no basis to interfere with the Boards disposition. The evidence established
    that the appellant is a difficult patient to treat. He has committed assaults
    on co-patients and has threatened staff. The Board reasonably concluded that
    the most appropriate and necessary disposition was his continued detention at
    Waypoint and that the secure environment at Waypoint was necessary to control
    the appellants risk of harm to the public.

[7]

Accordingly, the appeal is dismissed.

Paul Rouleau J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Southwestern Sales Corporation Limited v. Spurr
    Bros. Ltd., 2016 ONCA 590

DATE:

20160726

DOCKET: C61458

Hoy A.C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Southwestern Sales Corporation Limited

Plaintiff (Appellant)

and

Spurr Bros. Ltd., Spurr (Contracting) Inc.,
    Donald Kelly Spurr, Mary Spurr and John Randall Koop

Defendants (Respondents)

James Cooke, for the appellant

Gino Morga, for the respondents

Heard: July 18, 2016

On appeal from the order of Justice Pamela L. Hebner of
    the Superior Court of Justice dated November 9, 2015, with reasons reported at
    2015 ONSC 6908.

Brown J.A.:

Overview

[1]

The appellant, Southwestern Sales Corporation Limited, appeals the dismissal
    of its motion to set aside the order made at a status hearing dismissing seven
    actions it brought under the
Construction Lien Act
, R.S.O. 1990, c. C.30
     six lien actions and one breach of trust action.

[2]

The thorough reasons of the motion judge give a detailed chronology
    of the litigation, so reference need only be made to several key points. The
    appellant supplies aggregate building materials in the Windsor area. In
    December 2000, the appellant registered six claims for lien against properties
    owned by the respondents. To obtain an order vacating the claims for lien, the
    respondents paid into court approximately $330,000. In January 2001, the
    appellant commenced six lien actions on its lien claims. In January 2003, the
    appellant filed its trial record. However, it then commenced the breach of trust
    action. Periods of activity were followed by long periods of inactivity. Status
    hearings were scheduled, only to be adjourned by the appellant or to have the
    appellant fail to meet the deadlines set. The trial was set for September 2009,
    but did not proceed. In 2012, the actions were struck from the trial list. More
    status hearings were scheduled, only to be adjourned at the appellants request.
    Throughout, the appellant was represented by counsel.

[3]

Eventually a status hearing was scheduled for October 6, 2014, peremptory
    to the appellant. No one appeared for the appellant; the actions were dismissed
    by Master Pope. It transpired that counsel for the appellant had surrendered
    his licence to the Law Society of Upper Canada about two months before the
    October 2014 status hearing.

[4]

The respondents then secured payment of the monies out of court.
    When the respondents sought to garnish the appellants bank account to satisfy
    unpaid cost orders, that galvanized the appellant and it sprang into action. It
    retained new counsel, and there is no dispute new counsel moved expeditiously to
    set aside the dismissal order of Master Pope. The motion judge dismissed the
    appellants motion.

[5]

The appellant advances three grounds of appeal, submitting the
    motion judge: (i) applied the wrong test; (ii) erred in failing to accept the
    appellants explanation for its delay; and (iii) erred in finding the
    respondents had suffered prejudice.

Standard of Review

[6]

A decision to dismiss an action for delay at a status hearing is
    discretionary and entitled to deference on appeal unless the decision was made
    on an erroneous legal principle or is infected by a palpable and overriding
    error of fact:
1196158 Ontario Inc. v. 6274013 Canada Ltd
., 2012 ONCA
    544, 112 O.R. (3d) 67, at para. 16.

First
    ground of appeal: The motion judge applied the wrong legal test

[7]

The appellant submits the motion judge applied the wrong legal test for
    a motion to set aside a dismissal order made at a status hearing pursuant to rule
    48.14(7) of the
Rules of Civil Procedure
and this error warrants the
    intervention of this court. According to the appellant, instead of applying the
    two-part test described in
Faris v. Eftimovski
, 2013 ONCA 360, 206
    O.A.C. 264, at para. 32 (the
Faris
test),
[1]
the motion judge wrongly
    applied the four-part test in
Reid v. Dow Corning Corp.
(2001), 11
    C.P.C. (5th) 80, [2001] O.J. No. 2365 (S.C. [Master]), at para. 41 (the
Reid
test)
[2]
used when considering a motion to set aside a registrars dismissal of an
    action under rule 48.14(1).

[8]

I do not agree. Although the motion judge did not purport to rely on
    the
Faris
test line of cases, in my view, her reasons disclose her
    analysis focused on and applied the correct legal principles.

[9]

The timeliness of adjudication is one measure of the health of a
    justice system. In respect of the criminal justice system, the Supreme Court of
    Canada has stressed the need to change a culture of delay and complacency
    towards it:
R. v. Jordan
, 2016 SCC 27, at para. 29. The same can be
    said of the Ontario civil justice system.

[10]

The
Rules of Civil Procedure
contain general
    and specific provisions to create a culture of timely civil justice. At the
    general level, rule 1.04(1) requires courts to construe the rules to secure
    the just, most expeditious and least expensive determination of every civil
    proceeding on its merits. At the specific level, rule 48.14 establishes a
    presumptive timeframe for the listing of a civil action for trial which, if not
    met, requires the plaintiff to show cause why the action should not be
    dismissed. Rule 48.14 provides the court with a tool by which to assume an
    active role in controlling the pace of litigation:
Faris
, at para. 29;
1196158 Ontario
, at para. 34.

[11]

The presumptive time period for listing a civil
    action for trial contained in rule 48.14(1) reminds plaintiffs of their
    obligation to move their actions forward expeditiously to their resolution or
    final determination on the merits and cautions that they bear the consequences
    of conducting their actions in a dilatory manner:
Faris
, at para. 33.

[12]

The
Faris
and
Reid
tests describe
    what a dilatory plaintiff must demonstrate to a court to restore a dismissed
    action: the
Reid
test deals with administrative dismissal orders made by
    registrars; the
Faris
test concerns dismissal orders made at status
    hearings.

[13]

Under the
Faris
test, a plaintiff seeking
    to set aside a dismissal order made at a status hearing must demonstrate two
    things: (i) there was an acceptable explanation for its delay and (ii) if the
    action were allowed to proceed, the defendant will suffer no non-compensable
    prejudice. The analysis of the motion judge addressed both these matters; she
    did not fail to apply the proper legal principles.

Second
    ground of appeal: The appellant explained its delay

[14]

At the hearing, the appellant focused its
    submissions on how the motion judge treated its explanation for the 13-year delay.
    The explanation proffered by the appellant was that it was misled by its
    counsel, Mr. Istl, about the progress of the action and was not told that a
    status hearing was scheduled for October, 2014. The appellant submits the
    motion judge erred in concluding it had not provided a reasonable explanation
    for its delay.

[15]

I do not accept this submission.

[16]

The motion judge undertook her analysis in the
    context of actions brought by a commercial plaintiff under the
Construction
    Lien Act
. I agree with her description of the characteristics of construction
    lien claims set out at para. 19 of her reasons:

A lien claim can be an onerous thing for a defendant.  A
    defendant is faced with the prospect of either having its land tied up as a
    result of the registration of a claim for lien or, alternatively, having to
    finance sometimes substantial payments into court in order to free up title to
    the land.  Similarly, a breach of trust claim can also be an onerous thing
    for defendants.  They are faced with the possibility of being personally
    responsible for a corporate debt.  For these reasons, it seems to me that
    a lengthy delay in a claim for lien case (and a breach of trust case)
    constitutes prejudice to the defendants of the kind described above.  If
    the lien claimant wants to take advantage of the provisions of the

Construction Lien Act

and tie up title to a defendants
    property, it ought to proceed expeditiously to have its claim determined.
    Similarly, if a lien claimant wants to take advantage of the trust provisions
    of the

Construction Lien Act

it ought to be prepared to proceed
    expeditiously to have its claim determined.  A lien claimant ought not to
    be entitled to sit back and allow years to pass while the defendants property
    (or, as in this case, the defendants money) is held hostage.

[17]

At the time of the status hearing, the former
    two year period for listing an action for trial was in force. This court has
    described that time period as a relatively generous one, providing ample
    time to complete remaining steps following the filing of the first statement
    of defence:
1196158 Ontario
, at paras. 36 and 39. Yet, the appellants
    delay far exceeded the presumptive time period in rule 48.14. After more than
    13 years, the appellants actions had not gone to trial, yet the respondents
    funds remained tied up in court. As Blair J.A. noted in
Kara v. Arnold
,
    2014 ONCA 871, 328 O.A.C. 382, at para. 17, it is a common sense observation
    that the longer the delay, the more cogent the explanation must be.

[18]

The appellant did not file cogent evidence on its
    motion to set aside. The brief affidavits from the appellants controller consisted,
    in large part, of three assertions: (i) the appellant did not know about the
    status hearing; (ii) its former counsel represented the respondents were
    delaying the actions or the matter was progressing or it would soon settle; and
    (iii) it did not know its counsel had surrendered his licence.

[19]

The motion judge considered the appellants
    affidavits, but found they did not amount to an adequate explanation for the
    delay because they raised more questions than they answered. She stated, at
    para. 12:

The plaintiffs evidence is that Mr. Istl did not keep it
    informed as to the progress of the action.  Mr. Istl did not advise the
    plaintiff that he was failing to move the matter along.  Mr. Istl misled
    the plaintiff as to the status of its action.  I have no doubt that all of
    this is true.  What the plaintiff did not address in its evidence is how
    often the plaintiff contacted Mr. Istl to inquire as to the progress of the
    action. When years had passed without any substantive steps being taken towards
    a resolution, why did the plaintiff not investigate and demand that steps be
    taken?  Why did the plaintiff not retain another counsel to move the
    action forward?  There was no evidence offered to answer these questions.

[20]

The appellant submits that it was an error for
    the motion judge to accept the appellant had been misled by its lawyer about
    the status of the actions, but then conclude the appellant had failed to
    provide an adequate explanation for the delay.

[21]

I disagree. The appellant is a commercial entity.
    In 2001, it commenced construction lien actions that resulted in the
    respondents paying a substantial sum of money into court. As the party that
    commenced the actions, the appellant bore primary responsibility for their
    progress. Retaining a lawyer to represent it in the actions did not lessen that
    obligation.

[22]

As part of its obligation to move its construction
    lien actions along, the appellant was required to take reasonable steps to
    supervise its counsels work to ensure there would be an expeditious
    determination of the actions on their merits. On a motion to set aside a dismissal
    order, one would expect a commercial plaintiff like the appellant to file
    concrete evidence describing the steps it had taken to supervise its counsels
    handling of its actions. The appellant did not do so. Given the absence of such
    evidence, it is understandable the motion judge was not prepared to accept that
    the assertions of the appellants controller amounted to an acceptable explanation
    for a 13-year delay.

[23]

Accordingly, I agree with the motion judges
    conclusion that the appellant failed to provide an acceptable explanation for
    its delay.

Third
    ground of appeal: Prejudice to the respondents

[24]

The
Faris
test is a conjunctive one
    the appellant must meet both of its elements. Since I agree with the conclusion
    of the motion judge that the appellant failed to demonstrate an acceptable
    explanation for its delay, it is not necessary to deal with the issue of
    prejudice.

Disposition

[25]

For the reasons set out above, I agree with the
    motion judges decision to dismiss the appellants motion seeking to set aside
    the order dismissing its actions. I would dismiss the appeal and award the
    respondents their costs of the appeal fixed at $13,500, inclusive of HST and
    disbursements, as agreed by the parties at the hearing of the appeal.

Released: AH (July 26, 2016)

David
    Brown J.A.

I
    agree Alexandra Hoy A.C.J.O.

I
    agree Grant Huscroft J.A.

[1]

As applied in
Khan v. Sun Life Assurance Co. of Canada
,
    2011 ONCA 650, 1 C.C.L.I. (5th) 183, at para. 1; and
1196158 Ontario Inc
.,
    at para. 32.

[2]

As applied in
March
é
DAlimentation Denis Th
é
riault Lt
é
e v. Giant Tiger Stores Ltd
., 2007 ONCA
    695,87 O.R. (3d) 660, at para. 12;
MDM Plastics Ltd. v. Vincor International
    Inc.
, 2015 ONCA 28, 124 O.R. (3d) 420, at para. 11.


COURT OF APPEAL FOR ONTARIO

CITATION: Spiro v. Koc, 2016 ONCA 592

DATE: 20160726

DOCKET: C60060

Hoy A.C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Paul Spiro

Plaintiff (Respondent)

and

Elizabeth Koc, Bonnie Strapp, Valentina Skribane,
    Marija Cavdamova, and
Tania Cam

Defendants (Respondents/
Appellant
)

Marek Z. Tufman and Eleonora Izmaylov, for the
    appellant, Tania Cam

Saul I. Glober, Q.C., for the respondent, Paul Spiro

Robert L. Jenkins, for the respondents, Elizabeth Koc,
    Bonnie Strapp, Valentina Skribane and Marija Cavdamova

Heard: July 19, 2016

On appeal from the judgment of Justice John C. Murray of
    the Superior Court of Justice, dated January 27, 2015, with reasons reported at
    2015 ONSC 609.

ENDORSEMENT

[1]

The appellant, Tania Cam, appeals the trial judges determination that
    she was unjustly enriched by receiving $200,000 (a one-fifth share of the
    proceeds of a winning lottery ticket) and that Paul Spiro, a respondent, was
    entitled to this amount instead.

[2]

The relevant facts can be summarized briefly.

[3]

Spiro used to work at a bank in Milton, Ontario. Some employees at the
    branch, including Spiro, would contribute money to a pool for buying Lotto Max
    tickets. The group of employees who participated in the pool was not always the
    same. Spiro and four other employees (the Other Employees), also respondents
    on this appeal, contributed money for a lottery ticket purchased on June 25,
    2010. Spiro left his job at the bank on July 16, 2010, and stopped
    participating in the pool at that time.

[4]

Cam started working at the bank and joined the pool after July 19, 2010.
    On August 25, 2010, Cam took the June 25 ticket to a local vendor. She
    discovered that the June 25 ticket had resulted in a free play ticket. That
    free play ticket, in turn, won $1,000,000 in the Lotto Max draw of August 13,
    2010.

[5]

Cam and the Other Employees split the proceeds five ways. The respondent
    was not given any of the proceeds and was not notified about the winning
    ticket. Cam knew that the winning ticket was a prize for a lottery ticket
    purchased by a group in which she was not a participant, but she did not notify
    any of the Other Employees of that fact.

[6]

The trial judge found that Spiro and the Other Employees were co-owners
    of the ticket purchased on June 25, 2010. He found that the five respondents
    were entitled to an equal share of the winnings and that Cam was not entitled to
    a share. Therefore, he concluded, Cam had been unjustly enriched at Spiros
    expense by getting the share owed to him.

[7]

Cam argues that the trial judge erred in rejecting her argument that,
    once she began contributing to the purchase of lottery tickets, she joined an
    existing partnership governed by the
Partnerships Act
, R.S.O. 1990, c.
    P-5.  According to Cam, the winning ticket was an asset of the partnership and
    she  together with Spiro and the Other Employees  was entitled to share in
    the proceeds.

[8]

We reject that submission. We agree with the trial judge that Spiro and
    the Other Employees are properly characterized as co-owners of the June 25
    ticket. As such, Cam was not entitled to a share of the winnings. We
    acknowledge that a few court decisions, without legal analysis, have described
    a lottery ticket as a partnership asset. In our view, they do so loosely,
    simply to convey the idea that the lottery ticket was jointly owned by two or
    more people.

[9]

In any event, even if the lottery pool were a partnership, the
    appellant would have no entitlement to a share of the winnings. If there were a
    partnership, it was a partnership comprised of Spiro and the Other Employees only
    for the limited purpose of purchasing the June 25 ticket, and not an ongoing
    partnership.

[10]

The appeal is dismissed. As per the parties agreements, Cam shall pay
    the respondents costs of this appeal as follows: (i) $9,926.46, all inclusive,
    payable to Spiro; and (ii) $5,000 plus HST, payable to the Other Employees.

Alexandra
    Hoy A.C.J.O.

David M. Brown J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tran v. Chung, 2016 ONCA 587

DATE: 20160721

DOCKET: C60661

Simmons, LaForme and Huscroft JJ.A.

BETWEEN

Nip Y Tran

Plaintiff (Appellant)

and

Phu Man Chung,

Majekodunmi Adega,
    also known as Majek Adega,

Tu Hong Luong,
    Tradeworld Realty Inc.,

Bank of Montreal
, and Cynthia Dacosta, also known as

Cynthia DaCosta, also
    known as Cynthia Da Costa,

and
    Kerryon Nugent

Defendants (
Respondent
)

James H. Chow, for the appellant

Allyson Fox, for the respondent

Heard: December 9, 2015

On appeal from the order of Justice Mary E. Vallee of the
    Superior Court of Justice, dated May 25, 2015
,
with reasons
    reported at 2015 ONSC 3315.

COSTS ENDORSEMENT

[1]

On May 10, 2016 Ms. Trans appeal was allowed and she was awarded her
    costs of the appeal as well as those for the motion appealed from. In our
    reasons for decision, the parties were instructed to file written submissions
    as to the appropriate amount of such costs:
Tran v. Chung
, 2016 ONCA
    378. We have now received and reviewed those submissions.

[2]

In the result, Ms. Tran is awarded costs of the original motion
    in the agreed upon amount of $12,860.70 inclusive of disbursements and taxes.
    As for the appeal, Ms. Tran is awarded costs in the amount of $20,000 inclusive
    of disbursements and taxes.

Janet Simmon J.A.

H.S. LaForme J.A.

"Grant Huscroft J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Ur-Rahman v. Mahatoo, 2016 ONCA 555

DATE: 20160708

DOCKET: C61704

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Manzoor Ur-Rahman

Plaintiff (Respondent)

and

Oma Devi Mahatoo and Mohan Rum Mahatoo

Defendants (Appellants)

Wendy Greenspoon-Soer and Monica Unger-Peters, for the
    appellants

Naresh Misir and Ken Singh, for the respondent

Heard: July 7, 2016

On appeal from the order of Justice Grant Dow of the
    Superior Court of Justice, dated January 11, 2016.

ENDORSEMENT

[1]

The appellants appeal from the order of Dow J. of the Superior Court of
    Justice, dated January 11, 2016, dismissing their motion for an order setting aside
    the default judgment of Herman J. of the Superior Court, dated April 29, 2005,
    and the damages judgment of Firestone J. of the Superior Court, dated May 2,
    2014, and associated relief.

[2]

This action arose from a slip and fall incident at the appellants property
    in Toronto on January 29, 2003, approximately 13 years ago, when the
    respondent, allegedly one of several tenants then living at the appellants property,
    fell on the appellants icy driveway while walking toward his car.  On
    September 25, 2003, he sued the appellants in negligence, seeking damages for
    injuries sustained by him in the fall.  The appellants were noted in default on
    April 29, 2005 and the respondent obtained a default judgment for damages on
    May 2, 2014.

[3]

The appellants claim that they first learned of the default judgment,
    indeed of the respondents entire action, in mid-May 2015, when they received
    notice from the Sheriffs office that a judgment against them was to be
    enforced against their property.  They then sought legal advice and, in June
    2015, moved for relief in the Superior Court, as described above, to permit
    them to defend the action on the merits.

[4]

Before this court, the appellants acknowledge that the motion judge
    correctly identified the factors governing the determination whether to set
    aside a default judgment.  However, they argue that he erred in his application
    of those factors by misapprehending the evidence relating to each.

[5]

Specifically, the appellants submit that the motion judge erred by
    holding that: i) they did not act promptly after learning of the default
    judgment; ii) they did not have a plausible excuse or explanation for their
    default in complying with the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194; iii) they failed to raise a meritorious defence; and iv) granting the
    motion would offend the overall integrity of the administration of justice.

[6]

We are not persuaded by these submissions.  We see no reversible error
    in the motion judges discretionary decision refusing to set aside the default
    judgment or in his application of the governing test to the facts of this
    case.  To the contrary, we agree with his ruling and his reasoning in support
    of it.

[7]

The motion judge expressly referred to this courts decision in
Mountain
    View Farms Ltd. v. McQueen
, 2014 ONCA 194, 119 O.R. (3d) 561, and the
    factors identified in that case, at paras. 47-51, as governing whether to set
    aside a default judgment.  He considered the relevant factors in light of the
    evidence in this case and held:

(a)

it
    was very likely that the respondents numerous attempts at service of the
    statement of claim and various court documents on the appellants resulted in
    one or both of the appellants learning of the action prior to 2015;

(b)

there
    was evidence of repeated efforts by the appellants to evade service over
    several years;

(c)

although
    the appellants admitted that they had learned in early December 2014 of a court
    proceeding involving them, and that they had attended at the Superior Court in
    relation to that proceeding, they made no inquiries regarding the nature or
    status of the proceeding, and took no other steps in that regard, for more than
    six months;

(d)

the
    appellants advanced no plausible explanation for their lengthy default in
    engaging with the litigation;

(e)

the
    appellants claim that the respondent was never a tenant at their property was
    contradicted by independent records indicating that the respondent, at the
    relevant times, had both credit rating records and a drivers licence history
    associated with the appellants address;

(f)

similarily, the appellants assertion that the respondent never fell on
    their property was directly contradicted

by
    independent documentary evidence of an emergency response to the respondents
    accident at the appellants property and his transport to hospital on the day
    in question.  It was also inconsistent with the appellants draft pleading, in
    which they alleged, in the alternative, contributory negligence by the
    respondent; and

(g)

several
    judges or judicial officers had attempted over many years to ensure that the
    fact and status of the respondents action was brought to the appellants
    attention.  Despite these efforts, the appellants took no steps to acknowledge
    or respond to the action against them until confronted with enforcement
    measures.

[8]

These findings were amply supported by the evidentiary record.  They
    overwhelmingly established unacceptable and inadequately explained delay by the
    appellants, a sustained pattern by them of attempting to frustrate the normal
    litigation process by evading service, and a proposed defence to the action of
    dubious merit.  In these circumstances, we endorse the motion judges
    conclusion that the overall interests of justice compelled the dismissal of the
    appellants motion.

[9]

The appeal is dismissed.  The respondent is entitled to his costs of the
    appeal and the earlier stay motion, fixed in the agreed total amount of $15,000,
    inclusive of disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Van Halteren v. Deboer Tool Inc., 2016 ONCA 559

DATE: 20160711

DOCKET: C60941

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Jacob Van Halteren

Plaintiff (Appellant)

and

Deboer Tool Inc.

Defendant (Respondent)

John W. Findlay, for the appellant

Tyler H. McLean, for the respondent

Heard: July 8, 2016

On appeal from the order of Justice Dale Parayeski of the
    Superior Court of Justice, dated August 5, 2015.

By the Court:

[1]

The appellant appeals from the August 5, 2015 order of Parayeski J. of
    the Superior Court of Justice dismissing: i) the appellants motion for summary
    judgment for repayment of a loan made to the respondent in the sum of $500,000,
    plus interest; and ii) the appellants claim against the respondent, to the
    extent that it is based on the Original Promissory Note and a Loan, on the
    ground that it is statute-barred.

Background

[2]

There is no dispute that, in late 2002, the appellant lent to or
    invested the sum of $500,000 in the respondent company.  The loan was secured
    by a promissory note dated November 20, 2003 that the parties resigned, on
    the same terms, on November 21, 2005 (the 2003/2005 Notes).  These are the Original
    Promissory Note and Loan referred to in the motion judges order.

[3]

The appellant maintained that the respondent signed a new, replacement
    promissory note, for the same loan, on November 21, 2008 (the 2008 Note).
    The respondent denied signing the 2008 Note and led expert handwriting evidence
    on the summary judgment motion that the 2008 Note contained a simulation or
    forged version of his signature.

[4]

The motion judge held that any claim based on the 2003/2005 Notes was
    statute-barred by the expiry of the applicable two-year limitation period
    because demand was made under the 2003/2005 Notes, at the latest, by February
    20, 2006.  Accordingly, the applicable limitation period expired on February
    21, 2008.  However, the appellant did not commence his action until October
    2012, well after the expiry of the limitation period.

[5]

The motion judge, relying on the expert evidence proffered by the
    respondent, also held that the 2008 Note was a forgery.  Consequently, no
    sustainable claim against the respondent could be advanced on the 2008 Note, in
    equity or in contract.

[6]

The motion judge therefore dismissed the appellants motion.

Issues

[7]

The appellant argues that the motion judge erred in two respects.
    First, he submits that the motion judge erred in law by finding that the 2008
    Note was a forgery, when: i) neither party had requested a determination of
    this issue; ii) the appellant had not admitted that it was a forgery and proffered
    no evidence on the issue; and iii) the issue whether the note was a forgery
    required a trial.  Second, the appellant maintains that the motion judge
    further erred by determining the availability of equitable relief, when this,
    too, was a genuine issue requiring a trial.

[8]

For the reasons that follow, we reject these arguments.

Contract Claim

[9]

The appellants claim, in respect of which he sought summary judgment,
    was not specific to any of the 2003/2005 or 2008 Notes.  In his notice of
    motion, the appellant said that he sought an order compelling the respondent to
    pay him the principal amount of $500,000, plus interest, on account of monies
    lent to the respondent as of December 31, 2002, which was secured by a series
    of promissory notes confirming the indebtedness.

[10]

Thus, the relief claimed by the appellant on the motion centred on the
    $500,000 loan advanced on December 31, 2002, rather than one or more of the
    promissory notes.  In these circumstances, all the promissory notes were
    relevant on the motion and it was necessary for the motion judge to consider
    and assess the validity of the appellants repayment claim based on each note.

[11]

The motion judge first addressed the 2003/2005 Notes.  Before this
    court, the appellant does not dispute the motion judges holding that any contract-based
    claim for repayment of the loan based on the 2003/2005 Notes is statute-barred.

[12]

Moreover, the appellant himself testified on cross-examination that the
    2008 Note was given to replace the 2003/2005 Notes.  Accordingly, on the
    appellants own testimony, no viable repayment claim could be advanced on the
    2003/2005 Notes.

[13]

However, the appellant argues that the respondent acknowledged its
    indebtedness to the appellant on two separate occasions (February 11, 2011 and
    August 22, 2011) and that these acknowledgements give rise to promissory
    estoppel.

[14]

The motion judge disagreed.  He held that the acknowledgments relied
    upon did not assist the appellant because they were not made prior to the
    expiry of the limitation period, that is, before February 21, 2008.
    Consequently, they did not operate to toll the limitation period.

[15]

Nonetheless, relying on
Montcap Financial Corp. v. Schyven
,
    2011 ONSC 4030, the appellant says that the acknowledgements give rise to a
    genuine issue requiring a trial concerning whether promissory estoppel
    precludes the respondent from denying the debt owed, even if the limitation
    period had expired.

[16]

We do not accept these submissions.  To the extent that the appellants
    repayment claim was based on the 2003/2005 Notes, the expiry of the limitation
    period is dispositive of the appellants claim.  Alleged after-the-fact
    acknowledgments do not operate to revive the 2003/2005 Notes or trigger the
    commencement of a new limitation period.

[17]

The only remaining potential basis for the appellants claim for
    repayment of the same loan, together with accumulated interest, was the
    respondents alleged promise to pay set out in the 2008 Note.  And, contrary to
    the appellants submission, the respondent put the validity of the 2008 Note
    squarely in issue on the summary judgment motion, both in its counsels
    argument on the motion and by reason of the expert opinion evidence tendered by
    it concerning the authenticity of the 2008 Note.  Further, the appellant also
    gave evidence, on cross-examination, regarding the 2008 Note.

[18]

The appellant was obliged to put all relevant evidence upon which he
    would rely at trial before the motion judge in support of his claim, including
    in response to the respondents challenge to the validity of the 2008 Note.  In
    turn, it was incumbent on the motion judge to determine whether summary
    judgment should be granted based on the whole of the record before him.  He
    concluded, as he was entitled to do on the evidence on the motion, that the
    2008 Note was a forgery.  This finding was firmly rooted in the uncontradicted expert
    evidence before the motion judge.

[19]

These findings, collectively, were dispositive of the appellants
    contract-based claim to summary judgment.

Claim in Equity

[20]

Finally, the appellants claim that the motion judge erred by
    determining the availability of equitable relief cannot succeed.

[21]

First, the appellants pleading does not advance any claim in equity.
    Nor did the appellants notice of motion on the summary judgment motion.

[22]

Second, as we have said, no sustainable claim could be grounded on the
    2003/2005 Notes  in contract or in equity  due to the expiry of the
    applicable limitation period.

[23]

Finally, no claim for equitable relief could be anchored on a forged
    promissory note purportedly entered into in 2008.  As the motion judge put it,
    at para. 14: The tendering of the forged note by the [appellant] disentitles
    him to any of the alternate equitable relief he advances.  He does not come to
    court with  clean hands.

[24]

In any event, not every claim of promissory estoppel that arguably tolls
    a limitation period requires a determination at trial.  Here, the motion
    judges finding that the appellant did not come to court with clean hands was
    reasonably available on the record.  That finding foreclosed any equitable
    relief.

Disposition

[25]

For these reasons, the appeal is dismissed.  The respondent is entitled
    to its costs of the appeal, fixed in the agreed amount of $10,000, inclusive of
    disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.