COURT OF APPEAL FOR ONTARIO

CITATION: Nicholson v. Gemnay, 2017 ONCA 187

DATE: 20170302

DOCKET: C62274

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Annette
    Nicholson,

by her
    Litigation Guardian Deborah McBride

Plaintiff (Respondent)

and

Roger Gemnay

Defendant (Appellant)

Melissa MacKewn and Clarke Tedesco, for the appellant

Dennis Crawford and Jared M. Gillespie, for the
    respondent

Heard: February 24, 2017

On appeal from the judgment of Justice James W. Sloan of
    the Superior Court of Justice, dated June 13, 2016.

ENDORSEMENT

[1]

The appellant appeals from an award of US$192,000 plus pre-judgment
    interest, punitive damages of $25,000, and costs of $85,000 in favour of the
    respondent in this case of civil fraud.  At the conclusion of oral argument, we
    dismissed the appeal with reasons to follow. These are those reasons.

[2]

The appellant advanced two arguments.

[3]

First, he submits that the trial judges reasons were insufficient.

[4]

The outcome of the case turned on credibility.  The trial judge noted
    that the appellants evidence on virtually every fact testified to by the
    respondent was diametrically opposed to hers.

[5]

The respondent was a recent widow with a grade eight education and two
    young children.  The appellant had been a friend of her late husband. The
    respondent gave the appellant US$100,000 and then another US$100,000 shortly
    afterwards.  She testified that it was her understanding that this money was
    not to be used for trading and that the respondent promised he would not do
    anything to jeopardize the funds.  The respondent then proceeded to invest the
    funds in call options using his personal accounts.  Shortly afterwards, the
    funds were lost.

[6]

The trial judge preferred the evidence of the respondent to that of the
    appellant and concluded that the appellant took advantage of the respondent
    essentially to get at her money so that he could trade it in his online options
    account.  He also found that the respondent was responsible for the appellants
    losses.  Of the US$200,000, the appellant repaid US$8,000 to the respondent,
    leaving a total amount due of US$192,000.

[7]

Reasons may be less than ideal but still meet the requirements for
    sufficiency of reasons.  Read as a whole and in the context of the record, the trial
    judges reasons set out what was decided and why the decision was made.  See
R.
    v. R.E.M
., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16 and 17.  Moreover,
    the reasons permit effective appellate review.

[8]

The appellant submits that the trial judge erred by failing to find that
    the respondent was aware that the US$200,000 transferred to the appellant was
    being traded.

[9]

We disagree.  The record supported the judgment granted based on the respondents
    pleading of fraud.  The record did not support a finding of consent or
    acquiescence.  In any event, the appellant pled that the respondent effected
    the transactions or directed the appellant in that regard.  Read as a whole, it
    is clear that the trial judge concluded that defence was not made out.

[10]

Lastly, the trial judge found that the appellant preyed on the
    distraught, very trusting, naïve and vulnerable widow.  He concluded that the
    appellants conduct was highly reprehensible and departed to a marked degree
    from the ordinary standards of decent behaviour.  We see no reason to interfere
    with the trial judges award of $25,000 in punitive damages.

[11]

The appeal is dismissed with costs payable by the appellant in the
    agreed amount of $20,000 inclusive of disbursements and applicable taxes.

"H.S. LaForme
    J.A."

"S.E. Pepall J.A."

"G. Pardu J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Norman v. van Meppelen Scheppink, 2017 ONCA 192

DATE: 20170307

DOCKET: C61330

Juriansz, Brown and Miller JJ.A.

BETWEEN

Claire Norman by her litigation guardian Roslynn
    Norman, Ian Normal, Roslynn Norman, Kathryn Norman, Adam Norman and James
    Norman

Plaintiffs (Respondents)

and

Jeremy van Meppelen Scheppink,
Victor
    Litostanski
and
Inessa Litostanski

Defendants (
Appellants
)

R. Shawn Stringer, for the appellants

James D. Virtue and James J. Mays, for the respondents

Heard: March 1, 2017

On appeal from the judgment of Justice A. Duncan Grace of
    the Superior Court of Justice, dated October 23, 2015.

ENDORSEMENT

[1]

The appellant was driving westbound on a two-lane road when a vehicle
    travelling in the eastbound direction was struck from behind causing it to
    spin, flip onto its roof and cross over into westbound lane. The appellants
    vehicle collided with that vehicle in what was termed at trial, the second
    collision. The jury found there was negligence on the part of the appellant
    that caused or contributed to the second collision. The appellant appeals.

[2]

The respondents had settled their claim against the driver who caused
    the first collision, and had also settled the quantum of damages with the
    appellant. Consequently, the only question for the jury was whether the
    appellant was negligent.

[3]

Appellants counsel advances three grounds of appeal.

[4]

First, appellants counsel submits that the jury held the appellant to a
    standard of perfection and its verdict defies common sense. We do not accept
    the argument. The trial judge repeatedly instructed the jury that the law does
    not hold a driver to a standard of perfection. Moreover, there was ample
    evidence upon which a properly instructed jury could find the appellant was
    negligent. The evidence of the respondents accident reconstruction expert, by
    itself, would support the verdict. Eyewitness testimony of others, including
    the driver of the respondents vehicle, was available evidence, which if
    accepted by the jury, would support the verdict.

[5]

The second ground of appeal is that the trial judge erred in charging
    the jury that a prudent motorist should drive at a rate of speed and with his
    vehicle under such control that the motorist is able to pull up within the
    range of his vision. We agree that this instruction was inappropriate in the
    circumstances of this case. Respondents counsel acknowledges this model charge
    is intended for rear end collisions and was inapplicable.

[6]

Nevertheless, upon considering the charge as a whole against the
    backdrop of the evidence led at trial we do not think this isolated sentence
    would have caused the jury to engage in an incorrect analysis. In his charge,
    the trial judge also instructed the jury as follows:

At all times an operator of a vehicle must exercise the same
    level of caution as might be expected in like circumstances by a reasonably prudent
    driver. Each driver must take proper precautions to guard against such risk as
    might reasonably be anticipated to arise from time to time as the driver
    proceeds along the road. This degree of care and nothing more is required

If, however, a situation develops and the motorist sees or
    should see a situation of danger or emergency arising, the driver must take
    reasonable care to try to extricate himself from that situation if possible.
    The drivers efforts in this regard are not to be judged by a standard of
    perfection, but by a standard of reasonableness.

[7]

As well, appellants counsel recognizes that the trial judges reference
    to the drivers ability to pull up within the range of his vision, standing on
    its own, would not warrant a new trial.

[8]

We note that the trial judge provided his proposed charge to counsel and
    appellants trial counsel did not object to the instruction now impugned.

[9]

We would not give effect to this ground of appeal.

[10]

The third ground of appeal advanced is that the trial judge erred by
    failing to provide adequate instructions in response to improper closing
    submissions of respondents trial counsel. Respondents trial counsel, Mr.
    James May, made the following remarks in his closing address to the jury:

This is a serious event in the life of the Norman family. They
    will be living with the effects of this collision, whatever you decide, for the
    test of their lives and its - were trying to understand what resources they
    can have to care for a very badly injured young lady and an injured mom.

This is a horrible thing [that] happened to the Norman family.
    The effects of it will be with them forever. Does someone bear along with them
    the financial responsibility, the financial consequences of what happened?

Were saying a horrible thing happened to the Norman family
    thats going to cost them - for the rest of their life, its going to cost
    them.

Now tomorrow the Norman family will await your verdict, the
    final steps to justice are yours. When you issue your verdict Id ask you to remember
    that youll get to go home. Ill get to go home. His Honour will get to go
    home. Ms. Bennett will get to go home and well all get to live out our lives
    but no matter what you decide, the Norman family has to live with this tragedy
    for the rest of their lives.

[11]

We reject respondents counsels attempt to rationalize these closing
    submissions as factually correct and made as part of an earnest and fulsome
    plea to the jury seeking compensation for an injured child. The parties had
    settled the issue of damages. These remarks were so evidently irrelevant and
    improper, we infer counsel made them deliberately in an attempt to influence
    the jury. When pursuing their clients interests, counsel must not disregard
    their superordinate duties as officers of the court and to the administration
    of justice.

[12]

Appellants trial counsel objected to these improper remarks and sought
    a correcting instruction. The trial judge reviewed what he proposed to say with
    appellants counsel. Trial counsel did not press for a more specific and
    strenuous instruction. The trial judge instructed the jury that the only issue
    it had to decide was whether the appellant was negligent and emphasized that
    sincere sympathy for those involved should play no role in their analysis.
    While a more pointed instruction might have been given, it is not clear that
    appellants counsel would have welcomed a repetition of improper comments.

[13]

In the circumstances, we would not give effect to this submission. Nor
    are we persuaded that upon considering the interplay of the three grounds the
    appellant has raised, a new trial is warranted.

[14]

The appeal is dismissed. Costs in favour of the respondents are fixed in
    the amount of $25,000 all-inclusive.

"R.G. Juriansz J.A."

"David Brown J.A."

"B.W. Miller J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Nortel Networks Corporation (Re), 2017 ONCA 210

DATE: 20170313

DOCKET: M47511

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

In the Matter of the
Companies' Creditors
    Arrangement Act
, R.S.C. 1985, c. C-36, as amended

And in the Matter of
    a Plan of Compromise or Arrangement of Nortel Networks Corporation, Nortel
    Networks Limited, Nortel Networks Global Corporation, Nortel Networks
    International Corporation, Nortel Networks Technology Corporation, Nortel Communications
    Inc., Architel Systems Corporation and Northern Telecom Canada Limited

Application under the
Companies' Creditors
    Arrangement Act
, R.S.C. 1985, c. C-36, as amended

Jennifer Holley and Joseph Greg McAvoy, the moving
    parties, acting in person

Benjamin Zarnett, Jessica A. Kimmel and Peter B. Kolla, for
    the responding party, the Monitor, Ernst & Young Inc.

Derrick C. A. Tay and Jennifer Stam, for the responding
    parties, the Canadian Debtors

Mark Zigler, Susan L. Philpott and Barbara A. Walancik, for
    the responding parties, the Canadian Former Employees and Disabled Employees
    through their court appointed Representatives

Janice B. Payne and Thomas J. McRae, for the responding
    party, the Nortel Canadian Continuing Employees

Paul Mitchell, for the responding party, the EMEA
    Debtors (other than Nortel Networks S.A.)

Sheila R. Block, Scott A. Bomhof, Andrew D. Gray, Adam
    M. Slavens and Jeremy R. Opolsky, for the responding parties, Nortel Networks
    Inc. and the other U.S. Debtors

R. Shayne Kukulowicz, Michael J. Wunder, Ryan C. Jacobs
    and Geoff B. Shaw, for the responding party, the Official Committee of
    Unsecured Creditors of Nortel Networks Inc., et al

S. Richard Orzy, Gavin H. Finlayson and Richard B. Swan,
    for the responding parties, the Ad Hoc Group of Bondholders

Heard: In Writing

Motion for leave to appeal from the order of Justice Frank
    J. C. Newbould of the Superior Court of Justice, dated January 24, 2017.

ENDORSEMENT

[1]

The self-represented moving parties, Joseph McAvoy and Jennifer Holley
    (the Leave Applicants), seek leave to appeal the Sanction Order of Newbould
    J. dated January 24, 2017. The Monitor, the Canadian and US Debtors, Nortel
    Networks Inc., the Official Committee of Unsecured Creditors, the Ad Hoc
    Committee of Bondholders, the Nortel Continuing Employees, and the
    Court-Appointed Representatives of the Former and Disabled Employees of Nortel
    all oppose the motion.

[2]

Leave to appeal is granted sparingly in
Companies Creditors
    Arrangement Act
,
R.S.C. 1985, c. C-36

(
CCAA
)
proceedings and only where there are
    serious and arguable grounds that are of real and significant interest to the
    parties. In addressing whether leave should be granted, the court will consider
    whether:

a)

the proposed appeal is
prima facie
meritorious or frivolous;

b)

the points on the proposed appeal
    are of significance to the practice;

c)

the points on the proposed appeal
    are of significance to the action; and

d)

whether the
    proposed appeal will unduly hinder the progress of the action.

See,
Nortel Networks Corporation (Re)
, 2016 ONCA
    332, 130 O.R. (3d) 481, at para. 34.

[3]

We are satisfied that the stringent test for leave is not met in this
    case. The proposed appeal is not meritorious. As the supervising judge explained
    in his reasons, the Leave Applicants did not opt-out of the 2009 Representation
    Order for Disabled Employees (LTD Rep Order) and they are bound by the 2010
    Employee Settlement Agreement. The supervising judge correctly concluded the
    Leave Applicants have no right to opt out of the LTD Rep Order at this late stage:
    at para. 16.

[4]

The Leave Applicants are the only long-term disability beneficiaries to
    oppose the Plan, which has the support of over 99% of Nortels unsecured
    creditors based both on value and on number. This belies the importance of the
    proposed appeal to the practice or to the action. And, as this court has
    already emphasized, further delays in this very protracted litigation are to be
    avoided:
Nortel Networks Corporation (Re)
, 2016 ONCA 332, 130 O.R.
    (3d) 481, at paras. 102-103;
Nortel Networks Corporation (Re)
, 2016
    ONCA 749, 41 C.B.R. (6th) 174, at para. 11.

[5]

Finally, by order dated February 17, 2017, MacPherson J.A. required all
    materials on this leave motion to be filed by February 24, 2017, on which date
    the motion would be submitted to the panel for consideration. On February 27,
    2017, the Leave Applicants filed a notice of constitutional question
    challenging the constitutionality of ss. 6(1) and 11 of the
CCAA
.
    Counsel for the Monitor submits the notice should not be considered. We agree.
    The notice was filed far too late in these proceedings and, as noted, the Leave
    Applicants are bound by the 2010 Employee Settlement Agreement.

[6]

The motion for leave to appeal is dismissed.

"Alexandra Hoy
    A.C.J.O."

"S.E. Pepall J.A."

"David Brown J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Okel v. Misheal, 2017 ONCA 232

DATE: 20170322

DOCKET: C62248

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Mona Okel (also known as Mulhima Okel)

Applicant (Respondent)

and

Peter Misheal

Respondent (Appellant)

Peter Misheal , self-represented

Mona Okel, self-represented

Heard: March 20, 2017

On appeal from the judgment of Justice M.R. Gibson of the
    Superior Court of Justice, dated May 24, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks to appeal the cost order of Gibson J. of May 24,
    2016. No leave to appeal has been sought. We do not grant leave to appeal this
    order. A cost order is discretionary in nature. We see no basis to interfere.
    This proposed appeal is therefore dismissed. Costs to the respondent fixed at
    $250 inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. $25,610 in Canadian
    Currency, 2017 ONCA 251

DATE: 20170322

Brown J.A. (In Chambers)

BETWEEN

Attorney General of Ontario

and

$25,610 in Canadian Currency and $80.00 in US
    Currency (In Rem)

Heard: In Writing

On a fee waiver request made by Godwin Diogu in respect
    of the filing of a Notice of Appeal from the judgment of Justice Michael A.
    Penny of the Superior Court of Justice, dated January 31, 2017, with reasons
    reported at 2017 ONSC 708.

Brown J.A.:

OVERVIEW

[1]

Ensuring
    that litigants enjoy access to public courts to resolve their civil legal
    disputes is fundamental to our countrys constitutional arrangements:
Trial
    Lawyers Association of British Columbia v. British Columbia (Attorney General)
,
    2014 SCC 59, [2014] 3 S.C.R. 31,

at paras. 32 and 41.

[2]

At
    the same time, courts require money to operate. In Ontario, filing fees provide
    some of the courts operating revenue. In the case of most civil appeals
    brought to the Court of Appeal for Ontario, an appellant must pay $220 on the
    filing of a notice of appeal and $405 to perfect the appeal:
Superior Court
    of Justice and Court of Appeal  Fees
, O. Reg. 293/92, ss. 1(3) and (5).

[3]

Those
    fees are quite modest in amount, given the services received by the litigant in
    return. However, for some, even such modest amounts are beyond their financial
    means. To address this concern, the
Administration of Justice Act,
R.S.O. 1990, c. A.6 (the
AJA
), creates a mechanism by which civil
    filing fees can be waived so that individuals who might otherwise be denied
    access to justice because of their financial circumstances can be excused from
    paying fees: s. 4.1.

[4]

Under
    the fee waiver regime, two different routes are available to a person to
    request a fee waiver for an appeal in this court: (i) a request to the court
    registrar; and (ii) a request to a judge:
AJA
, ss. 4.3 and 4.4.

[5]

In
    the present case, Godwin Diogu has followed the second route, requesting a fee
    waiver from a judge in respect of his notice of appeal from the order of Penny
    J., dated January 31, 2017. For the reasons that follow I find that Mr. Diogu
    is not entitled to a fee waiver.

The
FEE WAIVER REGIME

[6]

A
    new fee waiver regime came into force in November 2016. Below, I describe the
    procedural requirements for each of the two fee waiver request routes.

(1)

The first route: a request to the court registrar

[7]

First,
    the person can make a written request for a fee waiver to the courts registrar
    using a form provided by the Ministry of the Attorney General:
AJA
, s.
    4.3(1). The request must be accompanied by proof of the persons income and, in
    some cases, proof of the spouses income:
Fee Waiver
, O. Reg. 2/05, s.
    2.1. The registrar must then review the request, together with the accompanying
    proof of income, to determine whether the person meets the prescribed financial
    conditions that entitle him or her to a fee waiver.

[8]

A
    person meets the prescribed financial conditions if he or she falls into one of
    three categories:

(i)

the primary source of the persons gross
    annual household income is one of several identified government benefit
    programs  e.g. Ontario Works, Old Age Security, Canada Pension Plan, and some
    others;

(ii)

Legal Aid Ontario has approved the persons
    application to receive legal aid services in respect of the proceeding; or,

(iii)

The person meets the financial criteria
    stipulated by the regulation: O. Reg. 2/05, s. 2(1).

[9]

The
    stipulated financial criteria require a person to demonstrate that his or her
    gross annual household income, the value of the households liquid assets, and
    the households net worth all fall below certain dollar amounts set out in the
    regulation: O. Reg. 2/05, s. 2(2).

[10]

If the registrar
    determines the person meets the prescribed financial conditions, the registrar
    shall give the person a fee waiver certificate:
AJA
, s. 4.3(4).

(2)

The second route: a request to a judge

[11]

The second way a
    person can request a fee waiver is by making a written request, using a
    prescribed form, to a judge of the court:
AJA
, s. 4.4. Before the
    request is put before a judge, the registrar must review it. If the registrar
    determines the person has met the prescribed financial conditions, the
    registrar shall issue a fee waiver certificate:
AJA
, s. 4.4(4).

[12]

If the registrar
    determines the person does not meet the prescribed financial conditions, the
    registrar then forwards the request to a judge. In reviewing the request, a
    judge must determine whether the person has met two conditions:

(i)

The person lacks the financial means to pay
    fees relating to the proceeding; and

(ii)

Commencing or continuing the proceeding is
    not frivolous, vexatious or otherwise an abuse of the process of the court:
AJA
,
    ss. 4.4(5) and (7).

[13]

If the judge is of the
    opinion the person meets those two conditions, then the judge shall make an
    order directing the registrar to give the person a fee waiver certificate:
AJA
,
    s. 4.4(5).

[14]

Two practical
    questions arise about fee waiver requests made to a judge.

[15]

First, what criteria
    does a judge use to determine whether the person lacks the financial means to
    pay fees relating to the proceeding? Although a judge will consider all the
    circumstances concerning a persons financial means, as part of that review a
    judge certainly will look at the financial criteria used on fee waiver
    applications to the registrar  i.e. whether: (i) the primary source of the
    persons gross annual household income is one of several identified government
    benefit programs; (ii) the person has applied for and received approval for
    Legal Aid; or (iii) the persons income, liquid assets and net worth fall below
    the dollar amounts specified in the regulation.

[16]

Second, what
    information must a fee waiver applicant include with a request to a judge? A
    fee waiver request to a judge first passes through the hands of the registrar. Since
    the registrar must determine whether the request meets the financial conditions
    prescribed by the regulation, it follows that an application to a judge for a
    fee waiver must, at a minimum, include the same information as would a fee
    waiver request to the registrar  i.e. information showing that the three financial
    criteria to satisfy a fee waiver are met: (i) the primary source of the
    persons gross annual household income is one of several identified government
    benefit programs; (ii) the person has applied for and received approval for
    Legal Aid; or (iii) the persons income, liquid assets and net worth fall below
    the dollar amounts specified in the regulation. The Ministry form for a request
    to a judge assists an applicant in organizing such information.

[17]

A fee waiver request
    to a judge may contain additional information about the applicants financial
    means, and the Ministry form contains a page for additional financial
    information.

[18]

An applicant for a fee
    waiver must appreciate that as a result of the changes which came into force in
    November 2016, he or she can no longer simply file an affidavit stating the
    applicant lacks the financial means to pay the court filing fees. Financial
    information must be filed. It is important that any person who applies to a judge
    for a fee waiver take the time and care to assemble and place before the judge
    relevant financial documentation about his or her financial means. I say this
    because the decision of the judge on a fee waiver request is final:
AJA
,
    s. 4.4(9). The rules of court do not apply to a fee waiver request made to a
    judge, so the decision made by the single judge will not be reviewable by a
    full panel of the court:
AJA
, s. 4.8.

THE FEE WAIVER REQUEST IN THE PRESENT CASE

[19]

In the present case,
    Godwin Diogu requests a fee waiver in respect of his notice of appeal from the
    order of Penny J. In that proceeding by the Attorney General of Ontario under
    the
Civil Remedies Act, 2001
, S.O. 2001, c. 28, the application judge
    granted an application for the forfeiture of CDN $25,610 and US $80 on the
    basis the funds were either the proceeds of unlawful activity or an instrument
    of illegal activity. Mr. Diogu took the position that the funds were owned
    either by himself or Mr. Chidi Chinagrooom. The motion judge did not accept his
    evidence.

[20]

Mr. Diogu wishes to
    appeal that judgment on several grounds: (i) the seized funds were not the
    proceeds of crime; (ii) the judgment was based on the improper application of
    the facts and law and, therefore, was wrong; and (iii) further reasons to be
    provided.

[21]

The registrar has
    referred Mr. Diogus fee waiver request to me for consideration.

[22]

Mr. Diogu has provided
    some information about his financial means in his affidavit. He states that he
    is presently unemployed because [his] work authorization application is
    pending. He lives with his wife and lists their net annual household income
    from employment at $11,000, but he attached 2016 T4s for his wife that show
    only about $175 in employment income. He lists their household assets as zero;
    he did not file any documentation about bank accounts or any other asset.

[23]

I must assess the
    statements in Mr. Diogus fee waiver affidavit in light of other information
    about his financial means contained in the application judges reasons.
    According to those reasons, Mr. Diogu filed evidence on the application that he
    was an inspection engineer and in 2013 earned annual income net of tax of
    $40,000. He also had a Canadian dollar bank account and a credit card. He
    received transfers of US dollars, and he bought used cars for export to
    Nigeria.

[24]

The evidence Mr. Diogu
    placed before the application judge paints a much different picture of his
    financial means than shown by his fee request affidavit. Mr. Diogu has not
    provided me with any explanation that reconciles the statements he makes on
    this fee waiver request about his current financial means with the evidence he
    placed before the application judge about his prior employment in Canada,
    annual income, and use of bank accounts. As a result, I am not persuaded that Mr.
    Diogu lacks the financial means to pay fees relating to his appeal.

DISPOSITION

[25]

Mr. Diogu is not
    entitled to a fee waiver certificate.

Released: March 22, 2017 ("DB")

"David Brown
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. $44,425 In Canadian
    Currency (In Rem), 2017 ONCA 201

DATE: 20170308

DOCKET: C61622

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

BETWEEN

Attorney General of Ontario

Applicant (Respondent in Appeal)

and

$44,425 In Canadian Currency (
In Rem
)

Respondent (Appellant in Appeal)

Jeffrey Langevin, for the appellant

Jennifer Malabar, for the respondent

Heard:  March 6, 2017

On appeal from the judgment of Justice Ronald Laliberté of
    the Superior Court of Justice, dated December 22, 2015.

ENDORSEMENT

[1]

The application judge granted an order forfeiting to the Crown
    approximately $44,425 in Canadian currency found by police while executing a
    search warrant on a camping trailer owned by the appellant. The search was
    conducted during a drug investigation.  In addition to the funds, police found
    other items in the trailer indicative of drug trafficking.

[2]

The appellant argues that the application judge did not provide adequate
    reasons for concluding that the funds were probably the proceeds or an
    instrument of unlawful activity and therefore subject to forfeiture pursuant to
    ss. 3(1) or 8(1) of the
Civil Remedies Act, 2001
, S.O. 2001, c. 28.

[3]

We reject this argument.

[4]

While characterizing his concern as the adequacy of the trial judges
    reasons, the appellant really asks this court to re-weigh the evidence that was
    before the application judge in the absence of reversible error.  The application
    judge was entitled to accept the uncontradicted opinion of Sergeant Hawkes that
    the funds were connected to unlawful activity. The application judge gave
    cogent reasons for rejecting the appellants explanation and his conclusion was
    fully supported by the record.

[5]

Accordingly, the appeal is dismissed.

Alexandra
    Hoy A.C.J.O.

Eileen E. Gillese
    J.A.

D.M. Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Psychological Association v. Mardonet, 2017
    ONCA 183

DATE: 20170301

DOCKET: C62535

Strathy C.J.O., Laskin and Trotter JJ.A.

BETWEEN

Ontario Psychological Association

Plaintiff

and

Charlotte (Carla) Mardonet, Sarah Esaafi, Gabrial
    Bensusan, 2181420 Ontario Inc., BDO Canada LLP, Vern E. Penner and Dr. John
    Serivce

Defendants

AND BETWEEN

Charlotte (Carla) Mardonet

Plaintiff by Counterclaim (Appellant)

and

Ontario Psychological Association,
Janet Kasperski, Ryan Morley, Ruth Berman, Douglas Saunders,
    Margaret Weiser, Connie Kushnir and Jane Storrie

Defendants to the Counterclaim (Respondents)

Paul Stern, for the appellants

Simon Clements, for the respondent

Heard: February 24, 2017

On appeal from the judgment of Justice Thomas R. Lederer of
    the Superior Court of Justice, dated July 15, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The plaintiff by counterclaim Carla Mardonet appeals the decision of the
    motion judge striking out four paragraphs of her counterclaim. Those paragraphs
    claimed contribution and indemnity against the six named defendants to the
    counterclaim.

[2]

The appellant was an employee of the Association. The six named
    defendants to the counterclaim were over the period the appellant was employed,
    officers and or directors of the Association. The motion judge, in essence,
    concluded that these six individuals owed no duty of care to the appellant. We
    agree with the motion judges conclusion and substantially with his reasons.

[3]

The appellants argument in this court that the six individuals failed
    to supervise her properly is no more than a defence and does not translate into
    a legal duty to her.

[4]

The appellant also argued in this court that the six individuals owed a
    duty to the Association, that they breached this duty, and that by doing so
    contributed to the Associations loss. The appellant seeks leave to amend her
    defence and counterclaim to assert this duty and a corresponding defence based
    on contributory negligence under the
Negligence Act
.

[5]

We deny leave to amend. What the proposed amendment does not do is set
    out the scope of the six individuals duty. And we see no tenable basis on
    which these individuals duty to the Association could result in their being
    liable for the appellants conversion of the Associations money.

[6]

The appeal is therefore dismissed with costs fixed at $10,000 all
    inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: PP v. DD, 2017 ONCA 180

DATE: 20170302

DOCKET: C61720

Rouleau, Hourigan and Huscroft JJ.A.

BETWEEN

PP

Plaintiff (Appellant)

and

DD

Defendant (Respondent)

William A. Chalmers, for the appellant

Valois P. Ambrosino, for the respondent

Heard: September 23, 2016

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated January 11, 2016.

Rouleau J.A.:

[1]

In 2014, PP and DD met through a mutual friend and enjoyed a short
    romantic relationship that lasted for less than two months. They went out on a
    number of dates and engaged in ostensibly consensual sexual intercourse on several
    occasions. Based on his conversations with DD, PP understood that DD was taking
    the birth control pill and that she did not intend to conceive a child.

[2]

Several weeks after their sexual relationship ended, PP was surprised to
    learn from DD that she was 10 weeks pregnant. In early 2015, DD gave birth to a
    healthy child. According to DD, paternity testing confirmed that PP is the
    father.

[3]

PP brought a civil action for fraud, deceit, and fraudulent
    misrepresentation against DD, claiming as damages that the deception deprived
    him of the benefit of choosing when and with whom he would assume the
    responsibility of fatherhood. In his words, he wanted to meet a woman, fall in
    love, get married, enjoy his life as husband with his wife and then, when he
    and his wife thought the time was right, to have a baby. He pleaded that he
    consented to sexual intercourse with DD on the understanding that she was using
    effective contraception. In his view, this was an express or implied
    misrepresentation and his consent was vitiated, having been obtained through
    deception and dishonesty.

[4]

This is an appeal from a decision granting DDs motion to strike PPs
    statement of claim without leave to amend:
PP v. DD
, 2016 ONSC 258,
    129 O.R. (3d) 175. In a contemporaneously released decision, the motion judge
    made a confidentiality order on his own motion, ordering that the parties not
    be identified by name and that the court file be sealed:
PP v. DD
,
    2016 ONSC 256, 262 A.C.W.S. (3d) 364.

A.

Background

[5]

The motion judge described the factual and procedural background of this
    appeal on the basis of the allegations in PPs statement of claim (which were
    assumed to be true for the purposes of the motion), PPs Answer to DDs Family Law
    Application, and information provided during the hearing. I will summarize that
    background as necessary to decide the appeal.

[6]

PP is a medical doctor and DD also works in the health care field. In
    the spring of 2014, they began dating at the suggestion of a mutual friend. Their
    first date was on May 14, 2014.

[7]

Three days later, on May 17, 2014, they went on a second date. On that
    occasion, they had dinner and retired to DDs apartment where they engaged in
    consensual sexual activity. During the course of that activity, PP asked DD
    whether she had any condoms. When she replied that she did not, he asked if she
    was on the pill. She told him that she was. After accepting this assurance
    from DD, PP consented to sexual intercourse that included intravaginal ejaculation.

[8]

PP and DD went on four more dates in the following three weeks. On each
    occasion, they again engaged in consensual sexual intercourse and DD did not
    say or do anything to suggest that her prior representations of fact with
    respect to being on the pill were not, or were no longer, true.

[9]

On June 10, 2014, they repeated the pattern of sexual activity that
    began on the second date, this time at PPs condominium. Prior to having sexual
    intercourse on that day, they discussed their practice of not using a condom.
    PP advised DD that he would happily wear one and that he did not want her to
    feel uncomfortable. DD stated that she preferred to have intercourse with him without
    a condom. Again, DD did not say or do anything to suggest that her prior
    representations of fact were not, or were no longer, true. They engaged in
    consensual sexual intercourse and intravaginal ejaculation.

[10]

There were two more dates in June 2014, during both of which the same
    pattern of sexual activity was repeated.

[11]

In July 2014, the pair decided to end their sexual relationship and
    agreed to remain friends. During the following weeks, they contacted one
    another several times by text message with respect to inconsequential matters.

[12]

In the early evening of August 10, 2014, PP received a text message from
    DD that shocked him, in which DD informed him that she was 10 weeks pregnant
    with his child. PP stated that he would call DD on his way to work. During that
    telephone conversation, DD told PP that she intended to deliver and keep the
    baby. PP stated that he thought she was on the pill, to which DD simply
    responded, yah. PP told DD he did not intend to have a child at that point in
    his life and, in shock, he suggested that DD have an abortion. She insisted
    that she would not do so, to which PP responded in anger: I dont want to have
    a baby with some random girl. I waited my whole life to decide who I have a
    baby with.

[13]

After ending the telephone conversation, they exchanged several text
    messages in which DD expressed confidence that she could raise the child on her
    own and stated that she did not want to force PPs involvement in the childs
    upbringing. She told PP that this random girl is fine doing it on her own. PP
    insisted that they meet to discuss the matter in person.

[14]

PP and DD arranged by text message to meet in a local park on August 20,
    2014. They met for approximately 20 minutes. During this meeting, PP asked DD
    if she had been taking the pill every day, to which she responded yes. When
    PP asked what pill she was on, DD looked away and did not respond. She said
    nothing about the name of the pill. PP inquired about the dates of DDs
    menstruation, to which she replied that she was unsure. She then informed him
    that she checked a pregnancy test six times immediately after PP returned from
    a trip abroad on June 22 and that, since then, she had had three ultrasounds.
    The meeting ended and they went their separate ways.

[15]

In early September, the pair communicated several times about DDs
    uncertainty with respect to whether PP was in fact the childs father. PP later
    had a paternity test, the results of which he still had not seen at the time of
    the motion. On September 18, DD contacted PP to advise him that he was the
    father and that she had decided to keep the child. PP expressed his
    disagreement and the pair did not communicate directly with one another after
    that time.

[16]

On March 28, 2015, DD delivered a healthy child. On the assumption he is
    in fact the father, PP maintains that he wishes to support and have a
    relationship with the child. PP and DD began negotiations through counsel for
    an interim agreement on child support.

[17]

On July 15, 2015, PP commenced his action for damages against DD. In his
    reasons, the motion judge noted that in this statement of claim PP sought to
    avoid child support obligations under the
Family Law Act
, R.S.O. 1990
    c. F.3 on the basis of DDs alleged fraudulent misrepresentation. However, that
    statement of claim was never served and a notice of discontinuance was filed on
    July 21, 2015. The statement of claim in the present action was issued on the
    same date.

[18]

PPs statement of claim asserts that, on the basis of DDs knowingly
    false representations with respect to her use of birth control and her implied intention
    not to conceive or deliver a child, he engaged in sexual intercourse that
    resulted in the birth of a child. He alleges that his consent was vitiated,
    having been induced by DDs misrepresentations that led him to believe she was
    taking the birth control pill as prescribed and directed. As the childs
    father, PP claims he has suffered damages. PP claims he has been deprived of
    the benefit of choice with respect to when, and with whom, he would conceive a
    child and raise a family.

[19]

PPs claim states that the particulars of his damages will be provided
    in the course of the proceeding in accordance with the
Rules of Civil
    Procedure
. He also seeks punitive damages.

[20]

Two days after the statement of claim was issued, on July 23, 2015, the
    pair signed an interim agreement for child support and access rights.

[21]

In September 2015, DD brought a motion to have PPs claim struck without
    leave to amend. In early October, DD commenced a Family Law Application for
    support and custody. In late October, PP served a jury notice in his civil
    action. Finally, on December 10, 2015, the day before the motion now on appeal
    was heard, PP delivered his Answer in the Family Law Application.

B.

The Decision Below

[22]

The motion judge granted DDs r. 21 motion to strike PPs claim without
    leave to amend. I will summarize the elements of his reasons for doing so that
    are relevant to this appeal.

[23]

First, the motion judge denied DDs request for an order, as alternative
    relief, to transfer the claims in the civil action into the family law court
    proceedings. He held that PPs civil action, in which he had delivered a jury
    notice, could not be joined with family law proceedings that must be tried
    without a jury pursuant to s. 108(2) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C. 43.

[24]

The motion judge then noted that, on a motion under r. 21.01(1)(b), a
    statement of claim may be struck where, assuming the facts pleaded are true, it
    is plain and obvious that the pleading discloses no reasonable cause of action.
    He acknowledged that the standard is very low for the demonstration of a reasonable
    cause of action on a r. 21 motion. However, he also cited
Frame v. Smith
, [1987] 2 S.C.R. 99
, at para. 36, for
    the proposition that in litigation involving children a more stringent
    standard may be imposed in order to ensure the childrens best interests are
    protected. The motion judge stated that he would apply that more stringent
    standard to the present case.

[25]

The motion judge held that the claim of fraudulent misrepresentation could
    not be made out. He determined that PP is only suing in fraudulent
    misrepresentation because he had a non-pathological emotional shock from
    becoming a parent (para. 74). In the motion judges view, fraudulent misrepresentation
    is an economic or pecuniary loss tort, for which damages are meant to restore a
    party to the financial circumstances he or she was in prior to relying on the
    misrepresentation. As a result, it was plain and obvious that a fraudulent
    misrepresentation claim for damages for what the motion judge labelled as non-pathological
    emotional harm resulting from an unplanned parenthood could not succeed.

[26]

The motion judge took issue with PPs allegation that his consent to
    sexual activity was vitiated by fraud. The judge noted that lack of consent is
    not a constituent element of a claim for fraudulent misrepresentation. In his
    view, vitiated consent is the effect and not the cause of a fraudulent
    misrepresentation.

[27]

In addition, the motion judge held that PP should not be allowed to
    extend the scope of the tort of fraudulent misrepresentation to circumvent the
    legal boundaries of the torts of intentional infliction of mental suffering or
    negligence. He identified those two torts as the conventional legal tools for
    civil redress against misconduct causing emotional harm.

[28]

With respect to negligence, the motion judge held that the
    non-pathological emotional harm claimed by PP did not rise to the level of
    compensable damage for personal injury:
Mustapha v. Culligan of Canada Ltd.
,
    2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9.

[29]

Similarly, in the motion judges view, a claim for intentional
    infliction of mental suffering could not succeed, in part because the
    constituent elements of that tort include damage in the form of a visible and
    provable illness: see, e.g.,
Frame v. Smith
, at para. 46;
Prinzo
    v. Baycrest Centre for Geriatric Care
(2002), 60 O.R. (3d) 474 (C.A.), at
    para. 43.

[30]

Citing further from the reasons of Wilson J. in
Frame v. Smith
,
    at paras. 46-47, the motion judge held that it was plain and obvious that the
    civil claim before him should not be permitted to extend the tort of fraudulent
    misrepresentation into the context of a family law conflict of this nature.
    This is because it would not appear to be in the best interests of children to
    do so.

[31]

Finally, the motion judge recognized the possibility that, although it
    was not pleaded, PPs pleadings could support a cause of action for civil
    sexual assault (sexual battery). In his view, this is the conventional legal
    tool for civil redress against sexual misconduct. The motion judge noted that
    such a claim is provable without any damages having been suffered beyond the
    invasion of ones bodily integrity.

[32]

After reviewing the jurisprudence on fraud vitiating consent in the
    context of sexual battery, the motion judge determined that PPs pleading might
    indeed disclose a claim for sexual battery. However, he declined to grant PP
    leave to deliver a fresh as amended statement of claim expressly pleading such
    a claim. The decisive factor was that PPs novel sexual battery claim was, in
    the motion judges view, focused on the non-pathological emotional harm of an
    unplanned parenthood. In other words, the motion judge found that PPs sense of
    violation arose not from the sexual touching to which he ostensibly consented,
    but from the spoiling of his later plans by the birth of an unplanned child.

[33]

For the same reasons that a fraudulent misrepresentation claim could not
    succeednamely that it was based on the non-pathological emotional harm of
    unplanned parenthoodit was plain and obvious to the motion judge that the
    claim did not come within the ambit of the tort of sexual battery.

[34]

In a subsequently released decision, the motion judge declined to make
    any order as to costs:
PP v. DD
, 2016 ONSC 814, 263 A.C.W.S. (3d) 322.
    As he explains in his reasons, this was because the issues were novel and
    important, and neither party was wrong in seeking access to justice. Further,
    the motion judge determined that awarding costs would likely increase the
    acrimony between the parties and thus complicate the proceedings in the Family
    Court and make this sad story worse for the child whose birth has become a
    source of emotional grief (para. 9).

C.

Issues On Appeal

[35]

The appellant raises several grounds of appeal. In my view, accepting as
    true the fact situation as pleaded by the appellant, the appeal can be resolved
    by answering two questions. First, can the appellant, as an aggrieved father,
    recover damages from the respondent, the mother, for involuntary parenthood? In
    the absence of recoverable damages, a claim of negligent or fraudulent
    misrepresentation cannot succeed. Second, can the alleged fraudulent
    misrepresentation as to the use of contraceptives vitiate the appellants
    consent to sexual touching for the purpose of advancing a claim of battery in
    these circumstances?

[36]

I would answer both of these questions in the negative and dismiss the
    appeal.

D.

Discussion

(1)

Can the appellant recover damages arising from the childs birth?

[37]

Central to the motion judges dismissal of the appellants claim for
    fraudulent misrepresentation is his conclusion that there were no recoverable
    damages. The appellant argues that the motion judge erred in several respects
    on the issue of damages.

[38]

First, the appellant argues that a simple plea that he has suffered
    damages is sufficient. Second, notwithstanding his submission that the motion
    judge erred in characterizing the claim as one for damages for non-pathological
    emotional harm from unplanned parenthood, the motion judge described the claim
    for damages as novel and as such, the appellant argues, it ought to be
    allowed to proceed to trial. Third, he argues that he ought to have been permitted
    to amend his pleading to allege other potential loses he has suffered or will suffer
    such as, he submits, the negative impact on his career and income earning
    capacity resulting from his having to spend time with his unwanted child.

[39]

I agree with the motion judges conclusion that the appellant has not
    made out a viable claim for fraudulent misrepresentation. Such a claim cannot
    succeed in the absence of recoverable damages. It is not sufficient to simply allege
    that damages were suffered; there must be a basis for the claim that a loss has
    been suffered for which the law allows recovery of damages.

[40]

The appellant places particular reliance on the
obiter
comment
    of Cory J. in
R. v. Cuerrier
, [1998] 2 S.C.R. 371, at para. 135, that
    [f]raud which leads to consent to a sexual act but which does not have [a
    significant risk of serious bodily harm] might ground a civil action. In the
    motion judges view, while this may be true, that civil action would not be fraudulent
    misrepresentation for damages for non-pathological emotional harm. I agree
    with that conclusion and, as I will explain, none of the damages allegedly suffered
    by the appellantbe they the damages set out in the claim or those argued in
    the course of submissions by counselare properly recoverable in a tort claim.

[41]

To succeed on a civil claim for fraudulent misrepresentation, the
    appellant must establish the following: (1) the representation was made by the
    respondent; (2) the respondent knew that the representation was false or was
    recklessly indifferent to its truth or falsity; (3) the false statement was material
    and by it the appellant was induced to act; and (4) the appellant suffered damages:
Bruno Appliance and Furniture, Inc. v. Hryniak
, 2014 SCC 8, [2014] 1
    S.C.R. 126, at para. 21; see also
Parna v. G&S Properties Ltd
.
    (1970), 15 D.L.R. (3d) 336 (S.C.C.) at p. 344.
[1]
The Supreme Court of Canada has consistently recognized that fraud without
    damage gives . . . no cause of action
:
Hryniak
at para. 20.

[42]

The appellant maintains that the pleading has made out all of the
    required elements for fraudulent misrepresentation including damages. In his submission,
    the damages claimedbe they for non-pathological emotional harm or for disruption
    of his career and financeswhile perhaps novel, should be left to be determined
    after a trial.

[43]

I have concluded that the appellant has not made out a viable claim for
    recoverable damages. As I will explain, I regard it as plain and obvious that those
    damages are not and, as a matter of legal policy, ought not to be recoverable
    by way of a fraudulent misrepresentation action.

[44]

Before proceeding with my analysis of the damages issue, I will briefly
    summarize the alleged facts on which my analysis and conclusion are based.

[45]

The relevant facts drawn from the pleading, which for the purpose of this
    motion are assumed to be true, can be summarized as follows:

(1)

The parties developed an amorous relationship that included repeated vaginal
    sexual intercourse;

(2)

The appellant agreed to have unprotected sex with the respondent and,
    although he accepted the risk of pregnancy that exists when a sexual partner is
    taking contraceptive pills, he was not prepared to accept the risk of pregnancy
    if the respondent was not taking any contraceptives;

(3)

The appellant has not suffered any physical injury or any emotional harm
    that is pathological in nature;

(4)

The appellant was not exposed to any known risk of bodily harm because
    of the sexual intercourse;

(5)

The respondent became pregnant and a healthy child was born of their
    relationship;

(6)

There was no alleged misrepresentation by the respondent other than with
    respect to the use of contraceptives and, implicitly, that she intended to
    avoid getting pregnant; and

(7)

The appellant is male and, as father of the child, has legal as well as
    moral responsibilities toward that child.

[46]

Although it was not presented in this way, the claim can be viewed as a tort
    claim for involuntary parenthood made by one parent against the other. It is
    clear that the alleged damages do not relate to a physical or recognized
    psychiatric illness. In essence, the damages consist of the appellants emotional
    upset, broken dreams, possible disruption to his lifestyle and career, and a potential
    reduction in future earnings, all of which are said to flow from the birth of a
    child he did not want. Although the claim is not for the direct costs
    associated with raising the child, all of the damages claimed by the appellant are
    the result of consequences flowing from the unwanted birth of a child, albeit
    unwanted only by the father.

(a)

The damages issue in involuntary parenthood cases

[47]

There have been numerous cases dealing with involuntary parenthood both
    in Canada and abroad. These normally involve law suits brought by parents
    against health care providers whose negligence resulted in the unwanted birth
    of a child. Recovery in such claims has generally been allowed for the damages
    suffered as a result of the pregnancy and birth of the child, but not for the
    cost associated with the mere fact of having become a parent or raising a
    healthy child. Although some jurisdictionssuch as Quebec (see
Suite c.
    Cooke
, [1995] R.J.Q. 2765 (Que. C.A.)), New Brunswick (see
Stockford
    v. Johnston
, 2008 NBQB 118, [2008] 335 N.B.R. (2d) 74), and Australia (see
Cattanach v. Melchior
, [2003] H.C.A. 38, (2003), 199 A.L.R. 131)have
    allowed some form of recovery for the cost of raising a healthy child,
[2]
Ontario courts have, to date, generally
    not followed that approach in involuntary parenthood cases: see
Paxton v.
    Ramji
, 2008 ONCA 697, [2008] 92 O.R. (3d) 401, at n. 7. In the oft-cited
    case of
Kealey v. Berezowski
(1996), 30 O.R. (3d) 37 (Ont. C.J.), Lax
    J. discussed the question at length and held that, while the general principles
    for the award of damages for child-rearing costs should evolve on a case-by
    case basis,

[t]he responsibilities and the rewards [of rearing a child] are
    inextricably bound together and do not neatly balance one against the other, at
    least not in the case of children. Who can say whether the time, toil and
    trouble, or the love, guidance and money which parents devote to a child's care
    and upbringing, will bring rewards, tangible or intangible, today, tomorrow or
    ever. No court can possibly determine this in any sensible way. Nor should it
    attempt to do so The responsibilities and the rewards cancel each other out.

[48]

The issue of damages in involuntary parenthood cases was extensively
    considered by the House of Lords in
McFarlane v. Tayside Health Board
    (Scotland)
, [1999] 4 All E.R. 961,
    [2000] 2 A.C. 59
and again in
Rees v. Darlington Memorial
    Hospital NHS Trust
, [2003] UKHL 52,
    [2004] 1 A.C. 309
. Both of these cases dealt with the most common
    form of such claims, that is, those brought by one or both parents against
    third-party health care providers.

[49]

In
McFarlane
, the plaintiffs husband had a vasectomy and was
    advised that his sperm count was nil and that contraceptive precautions were no
    longer necessary. The couple acted on that advice and the plaintiff
    subsequently became pregnant and delivered a healthy child. The parents alleged
    that they had suffered loss as a result of the health boards negligence. The
    plaintiff sought damages from the health board for pain and suffering arising
    out of pregnancy and labour as well as for the financial consequences of the
    parents duty to raise the child, whom they loved and cared for as an integral
    part of their family.

[50]

The House of Lords was unanimous in rejecting the claim for the financial
    cost of raising a healthy child. Although the reasoning adopted by each of the
    Lords varied, the ratio was fairly summarized in a lecture made to the Personal
    Injury Bar Associations Annual Conference in 2003 by Sir Roger Toulson, the
    chairman of the Law Commission. He described the House of Lords reasoning as
    follows:

Although at a detailed level there are therefore significant
    differences between the judgments, at a broader level two features dominate
    them. These are, first, the incalculability in monetary terms of the benefits
    to the parents of the birth of a healthy child; and, secondly, a sense that for
    the parents to recover the costs of bringing up a healthy child ran counter to
    the values which they held and which they believed that society at large could
    be expected to hold.

[51]

In the subsequent involuntary parenthood case of
Rees
,
the plaintiff was a mother who did not
    want a child as she was severely visually disabled and would find it difficult
    to raise the child. As a result of the negligence of the health care provider,
    she gave birth to a healthy child. The House of Lords confirmed its decision in
McFarlane
and denied any recovery for the costs of raising the healthy
    child. In
Rees
, however, a majority of the House for different reasons
    supported a modest conventional award of £15,000 to the plaintiff mother who was
    raising the child (the father having taken no interest in the child), as a
    nominal, non-compensatory recognition of the mothers loss of autonomy.

[52]

In
Rees
, the Lords unanimously declined to reconsider the
    holding in
McFarlane
, upholding that decisions refusal to grant
    recovery of the costs of the childs upbringing. In his speech, Lord Millett reiterated
    his view, as expressed in
McFarlane
:

In my opinion the law must take the birth of a normal, healthy
    baby to be a blessing, not a detriment. In truth it is a mixed blessing. It
    brings joy and sorrow, blessing and responsibility. The advantages and the
    disadvantages are inseparable. Individuals may choose to regard the balance as
    unfavourable and take steps to forgo the pleasures as well as the
    responsibilities of parenthood. They are entitled to decide for themselves
    where their own interests lie. But society itself must regard the balance as
    beneficial. It would be repugnant to its own sense of values to do otherwise.
    It is morally offensive to regard a normal, healthy baby as more trouble and
    expense than it is worth.

[53]

While the decision is controversial,
[3]
it is nonetheless relevant. In my view, the Lords reasoning to the effect that
    the kind of damage sought by the appellant is fundamentally incalculable and not
    recoverable in tort has particular force in the circumstances of this case, namely
    where a father claims damages as against a mother for the emotional and/or
    economic costs associated with the rearing of a healthy child.

[54]

There is no determinative precedent in Canada respecting a claim by one
    or other parent against a third party for involuntary parenthood involving a
    healthy child and that issue is not before us in this case. However, the incalculability
    of any purported loss is particularly acute where the claim is made not by the
    parents as against a third party, but by one parent as against the other parent
    with whom he shares equally the legal and moral responsibility of maintaining
    the child. As I will discuss further below, to award damages in this case would
    be contrary to the spirit and purpose of Ontarios statutory family law regime.

(b)

The irrelevance of fault in Ontarios custody and child support regime

[55]

As I have noted above, this is not a claim being advanced by unwilling
    parents as against a third party. Rather, it is a claim being advanced by the
    unwilling father against the mother, who does not claim to be an involuntary
    parent and who has willingly taken on the responsibility of raising the child.
    In effect, the father is claiming that, to the extent that he views the birth
    as a disadvantage to himselfemotionally, professionally and/or financiallythe
    mother, who has agreed to raise the child, must compensate him. Presumably, the
    more time and resources the appellant devotes to the child, the more his income
    and career will suffer and the more the respondent will have to pay.

[56]

It is to be hoped that the appellant will, as the childs father,
    contribute to the childs upbringing in a positive way. It is also hoped that
    he will see this contribution as being pleasurable and positive. If, however, he
    views it only in a negative light, I see no basis on which to impose liability
    on the mother for any net negative impact the appellant may consider that he
    has suffered due to his having fathered the child and contributed to his or her
    upbringing.

[57]

To allow the appellant to recover damages as against the respondent for
    the unwanted birth in the circumstances of this case would, in my view, run
    against the clear trend in the law moving away from fault based claims in the
    family law context.

[58]

Since the 1970s, Canadian jurisdictions have moved away from a fault
    based divorce and child support regime. The 1976 Law Reform Commission of
    Canadas Report on Family Law (Ottawa: Information Canada, 1976) put it as
    follows, at p. 18:

[There should be] a process that offers no legal confirmation
    of a spouses contention that he was right and she was wrong, that she is
    innocent and he is guilty, that one is good and the other is bad. No legal
    results should be allowed to follow from such claims or accusationsnot
    dissolution, not financial advantage, not a privileged position vis-à-vis the
    children.

[59]

In
Frame v. Smith,
at para. 9, La Forest J. similarly emphasized
    the undesirability of provoking suits within the family circle. As he
    explained, such claims brought by one parent against another should not often be
    allowed since they are in most cases detrimental to the parties involvedespecially
    to the welfare of the childand will invite a flood of cases. See also
Louie
    v. Lastman
(2001), 54 O.R. (3d) 301 (S.C.J.), at para. 31, affirmed
    (2002), 61 O.R. (3d) 459 (C.A.), and
Saul v. Himel
(1994), 9 R.F.L.
    (4th) 419 (Ont. Gen. Div.), at para. 20, affirmed (1996), 22 R.F.L. (4th) 226
    (Ont. C.A.).

[60]

Further, La Forest J. held in
Frame
that clear legislative
    action with respect to child custody and access rights was determinative in
    that case and precluded any possible judicial initiative in that area through
    the development of tort law. It was obvious to him that the legislature
    intended to devise a comprehensive scheme that precluded the availability of
    civil actions in such family disputes as the one before him: see
Frame
,
    at paras. 11-12.

[61]

When a couples dispute involves costs related to their child, the
    imposition of civil liability raises similar concerns. It is well established
    that child support is the right of the child: see, e.g.,
D.B.S v. S.R.G.
,
    2006 SCC 37, [2006] 2 S.C.R. 231, at para. 38. There is a corresponding
    obligation placed equally upon both parents to financially support the child:
Paras v. Paras
, [1971] 1 O.R. 130 (C.A.). The Supreme Court of Canada has
    confirmed that:

the obligation of both parents to support the child arises at
    birth. In that sense, the entitlement to child support is automatic and both
    parents must put their childs interests ahead of their own in negotiating and
    litigating child support (
Kerr v. Baranow
, 2011 SCC 10, [2011] 1
    S.C.R. 269, at para. 208).

[62]

The child support obligation of a parent in Ontario is legislated in s.
    31(1) of the
Family Law Act
, which clearly states that every parent
    has an obligation to provide support for his or her child to the extent that
    the parent is capable of doing so. The legislative scheme for child support is broad,
    and does not take blame into account in relation to the manner of conception.
[4]
The statutory remedies available
    to ensure support for the child flow from the simple fact of being a parent as
    defined by statute.

[63]

It would be contrary to the spirit, purpose and policy reflected in Ontarios
    no-fault child support regime to view parents as equally responsible for maintaining
    a child but, at the same time, to allow recovery by the appellant against the
    mother for the loss purportedly suffered by him as a result of that responsibility,
    which loss would presumably increase as he devotes more of his time and
    resources to the childs upbringing.

[64]

The appellant asserts that he accepts and has complied with his
    statutory duty to pay child support. Nevertheless, the appellant seeks to
    recover in excess of $4 million in damages from the childs mother in
    compensation for losses flowing from the childs birth and his responsibilities
    toward that child. In the circumstances of this case, to allow the appellants
    claim would, in effect, be to allow the appellant to circumvent the equal obligations
    to the child imposed on parents by lawobligations that are imposed without
    regard to fault or intention.

[65]

Little would distinguish this proposed claim from claims other parents may
    decide to bring against their former spouses or sexual partners seeking compensation
    for the burdens imposed on them by the birth of an unwanted child, where it is
    claimed that the childs conception was the result of a misrepresentation,
    duress, or even the negligence of the former spouse or sexual partner with
    respect to matters such as fertility or contraceptive use or misuse. Such
    actions would engender disharmony between mothers and fathers and would be
    contrary to the spirit of this provinces family law legislation.

[66]

With the above in mind, I would observe that appellate courts in the
    United States have decided a number of cases highly analogous in their facts to
    the present one. In
Barbara A. v. John G.
(1983), 145
    Cal. App. 3d 369
, the California Court of Appeal, 1
st
District, articulated its understanding of the ratio in the earlier case of
Stephen
    K. v. Roni L.
(1980), 105 Cal. App. 3d 640
,
a case in which a
    father had brought a cross-complaint in a paternity suit claiming damages
    against the mother, alleging that she had falsely represented that she was
    taking birth control pills and thereby induced him to engage in sexual
    intercourse that led to the birth of a child unwanted by him. In discussing
Stephen
    K.
, the court emphasized its concern that to allow one parent to sue the
    other over the wrongful birth of their child, and thereby to use the child as the
    damage element in a tortious claim of one parent against the other, would
    effectively erase much or all of the former parents financial support
    obligation. In that courts view, this type of action would seldom, if ever,
    result in a benefit to the child or be consistent with that states family law
    legislation, which was designed to reduce acrimony between disputing parents.

[67]

In
Henson v. Sorrell
, 1999 WL 5630, the Court of Appeals of
    Tennessee referred to a number of other cases from a variety of American
    jurisdictions in which the father of a child has attempted to recover damages
    from the mother because of false representations concerning birth control use.
[5]
The court noted that such claims
    have been universally rejected. Again, in
Wallis v. Smith
(2001), 130
    N.M. 214, the Court of Appeals for New Mexico dismissed precisely such a claim on
    the express basis that it would effectively allow the plaintiff to circumvent the
    legislative policy reflected in that states statutory child support
    obligations. Although there are differences between the family law regimes in these
    United States jurisdictions and their equivalent in Ontario, the underlying
    principle is the same.

[68]

For these reasons, as a matter of legal policy the alleged damages should
    not be recoverable in tort. Therefore, this is not the kind of novel claim that
    ought to be allowed to proceed to a protracted and expensive trial: see
Arora
    v. Whirlpool Canada LP
, 2013 ONCA 657, [2013] 118 O.R. (3d) 113, at para.
    94.

(2)

The potential claim in battery

[69]

I turn now to the appellants submission that, for the purpose of
    advancing a claim in battery, the misrepresentation of the respondent vitiated
    the appellants consent to sexual intercourse.

[70]

In
Non-Marine
    Underwriters, Lloyds London v. Scalera
, 2000 SCC 24, [2000] 1 S.C.R. 551,
    McLachlin J. (as she then was), writing for the majority, set out the purpose
    and features of the tort of battery, at para. 15:

The tort of battery is aimed at protecting the personal
    autonomy of the individual. Its purpose is to recognize the right of each
    person to control his or her body and who touches it, and to permit damages
    where this right is violated. The compensation stems from violation of the
    right to autonomy, not fault. When a person interferes with the body of
    another, a
prima facie
case of violation of the plaintiffs autonomy is
    made out. The law may then fairly call upon the person thus implicated to
    explain, if he can. If he can show that he acted with consent, the
prima
    facie
violation is negated and the plaintiffs claim will fail.

[71]

The constituent elements of the tort of sexual battery are the same as
    those of the tort of battery. That is, the plaintiff must prove on a balance of
    probabilities that the defendant intentionally touched the plaintiff in a
    sexual manner. To prove a battery, the plaintiff must also demonstrate that the
    interference with his or her body was harmful or offensive, but this
    element is implied (assuming a lack of consent) in the context of a sexual
    battery:
Scalera
, at para. 22.

[72]

An apparent consent to sexual touching will be invalid if it has been
    obtained by duress,
force or threat of force,
    given under the influence of drugs, secured through deceit or fraud as to the
    nature of the defendants conduct, or obtained from someone who was legally
    incapable of consenting or where an unequal power relationship is being
    exploited
:
Norberg v. Wynrib,
[1992] 2 S.C.R. 226 at pp.
    246-47. For the purpose of this appeal, I will focus only on fraud.

[73]

In
Linden and Feldthusen,
Canadian
    Tort Law
(10th ed.) (Toronto:
    LexisNexis, October 2015)
, the authors explain that not all forms
    of fraud will undermine consent to sexual touching. As they state at p. 82, the
    key question is whether the deceit goes to the nature and quality of the act.
    Consent to sexual touching will normally remain operative if the deceit relates
    not to the nature and quality of the act, but instead to some collateral
    matter.

[74]

Reported cases involving fraud pertaining to the nature or quality of the
    act are frequently cases of criminal sexual assault. Criminal sexual assault
    and tortious sexual battery typically involve the same wrongful act, namely
    non-consensual sexual touching, and in such cases the difference lies in the
mens
    rea
and standard of proof that must be established: see
Scalera
,
    at para. 111.
[6]
For the purpose of determining whether consent to sexual touching is operative
    in the face of fraud or deceit, such criminal cases are therefore instructive. Cases
    of fraud as to the nature or quality of the act have included circumstances
    where, for example, a choir-master had sexual intercourse with a young student
    under the pretense that it would improve her singing (
R. v. Williams
,
    [1923] 1 K.B. 340 (U.K. Ct. Crim. App.)) and where a woman consented to sexual
    intercourse under the belief that it would cure certain physical disorders (
R.
    v. Harms
, [1944] 2 D.L.R. 61 (Sask. C.A.)).

[75]

Likewise, fraud pertaining to the identity of the sexual partner will
    undermine consent. This court has upheld a criminal conviction for sexual
    assault where the complainant mistakenly believed her sexual partner was her
    boyfriend when it was in fact his identical twin brother and where the twin was
    reckless or wilfully blind as to whether his identity was clear to the
    complainant (
R. v. G.C.
, 2010 ONCA 451, [2010] 256 C.C.C. (3d) 234,
    leave to appeal refused, [2010] 3 S.C.R. v (note)).

[76]

The appellant relies on
R. v. Hutchinson
, 2014 SCC 19, [2014] 1
    S.C.R. 346, a case wherein the courtin interpreting the
Criminal Code
provisions
    relating to sexual assaulttook the opportunity to both summarize and clarify
    the law as to when fraud vitiates a complainants consent to sexual touching. In
Hutchinson
, the majority made clear that the analysis of whether
    consent to sexual touching is operative involves two questions. First, the
    court must determine whether the complainant validly consented to the sexual
    activity in question. Second, if so, the court must consider whether there are
    any circumstances that may vitiate the complainants apparent consent:
Hutchinson
,
    at para. 4.

[77]

With respect to the first question, the Supreme Court confirmed the earlier
    case law and the above-noted view of Linden and Feldthusen, insofar as fraud
    going to the nature and quality of the act will undermine consent. Where
    there is a deception or mistaken belief with respect to either the identity of
    the sexual partner or the sexual nature of the act itself, no consent to sexual
    touching will have been obtained: see
Hutchinson
, at para. 57.

[78]

In the present case there is no issue as to whether there was deception
    concerning the identity of the sexual partner or the sexual nature of the act
    itself. The appellant concedes that he consented to sexual intercourse with the
    respondent. His precise allegation is that his otherwise valid consent was
    vitiated in the circumstances by fraud.

[79]

This takes me to the second question in
Hutchinson
, namely what
    types of fraud will vitiate consent to sexual activity. Here the court
    confirmed the approach it took in the cases of
R. v. Cuerrier
, [1998]
    2 S.C.R. 371 and
R. v. Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584. That
    is, for consent to be vitiated by fraud there must be: (1) dishonesty, which
    can include the non-disclosure of important facts; and (2) a deprivation or
    risk of deprivation in the form of serious bodily harm that results from the
    dishonesty:
Hutchinson
, at para. 67.

[80]

In
Hutchinson
,
the accused punctured holes in a condom that he then used to have intercourse
    with the complainant. As a result, unbeknownst to the complainant the sex was
    unprotected and the intercourse gave rise to a significant risk of serious
    bodily harm, namely becoming pregnant with all of its attendant risks.

[81]

The majority in
Hutchinson
considered that the presence or
    absence of a condom during sexual intercourse does not affect the specific physical
    sex act to which the complainant consented, namely sexual intercourse, but is rather
    a collateral condition to that sexual activity. In the majoritys view, so
    long as there is consent to sexual intercourse, this general consent is not
    vitiated by dishonesty about condom use unless it exposes the individual to a deprivation
    or risk of deprivation in the form of serious bodily harm which results from the
    dishonesty (para. 67). On the facts of
Hutchinson
,
the deprivation consisted of denying the
    woman the benefit of choosing not to become pregnant by making her pregnant,
    or exposing her to an increased risk of becoming pregnant and thereby exposing
    her to a significant risk of serious bodily harm. This was based on the
    majoritys understanding that harm includes at least the sorts of profound
    changes in a womans body resulting from pregnancy (paras. 69-72).

[82]

In
Hutchinson
, therefore,
    the Supreme Court clarified that deception with respect to contraceptive
    practice does not go to the nature and quality of the actor, in the words of
    the
Criminal Code
, to the sexual activity in questionbut that it may,
    nevertheless, vitiate consent to sexual touching where the fraud gives rise to a
    significant risk of serious bodily harm, which includes the risk of pregnancy.
    The majority also made it clear, however, that:

[t]o establish fraud, the dishonest act must result in a
    deprivation that is equally serious as the deprivation recognized in
Cuerrier
and in this case [namely, a significant risk of serious bodily harm]. For
    example, financial deprivations or mere sadness or stress from being lied to
    will not be sufficient (para. 72).

[83]

In summary, therefore, absent any concerns about bodily harm, the test
    for invalid or vitiated consent has not changed from that set out by the
    authors in
Canadian Tort Law
. With the one exception of deceit giving
    rise to a significant risk of serious bodily harm, in which case consent may be
    vitiated, the question continues to be whether the alleged deception relates to
    the specific sexual act undertaken and/or to the identity of the sexual partner.

[84]

As a result, I do not view
Hutchinson
as being of any
    assistance to the appellant. In the present case, the intercourse between the
    two known partners occurred consensually on many occasions. The appellants consent
    to sexual activity was meaningful, voluntary, and genuine. As the appellant
    concedes, he consented to unprotected sex and was fully informed as to the
    respondents identity and as to the nature of the sexual act in which the
    parties voluntarily participated. The touching involved was wanted and would
    have occurred in the same way except that, but for the alleged
    misrepresentation, the appellant would have used a condom. Not wearing a condom
    did not increase the appellants risk of serious physical injury.

[85]

As the motion judge found, the appellants alleged damage is principally
    emotional harm or, in other words, hurt feelings and lost aspirations and/or
    career opportunities flowing from the birth of his child. His situation, as a
    man, is quite different from that of the woman. Clearly, there are profound
    physical and psychological effects on a mother undergoing a pregnancy that do
    not apply to the father of the child. The appellant was not exposed to any
    serious transmissible disease or other significant risk of serious bodily harm
    flowing from the intercourse. Moreover, it is noteworthy that the appellant was
    willing to assume some risk, albeit small, that pregnancy would result from the
    several instances of sexual intercourse, a risk present even where the woman is
    taking contraceptive pills.

[86]

The alleged deception in this case was not with respect to the nature of
    the act, but only as to the likely consequences flowing therefrom. The sexual
    contact in this case was consented to and there were no physically injurious
    consequences. There was therefore no violation of the appellants right to physical
    or sexual autonomy that would give rise to a claim in battery. This is not to
    minimize the significance of fathering a child and the legal and moral
    responsibilities that ensue therefrom, nor to condone the alleged conduct of
    the respondent. The issue is only whether the alleged misrepresentation is
    actionable and whether, if proven, it would constitute the tort of battery. In
    my view, it would not.

(3)

Cross-appeal

[87]

The respondent has cross-appealed on the issue of costs. As set out
    earlier, the motion judge exercised his discretion not to award costs on the
    basis that the issues were novel and important and, in addition, that he
    considered that an award of costs would further complicate the proceedings in
    the family court. Motion judges have broad discretion in the award of costs and
    their decisions are entitled to deference on appeal. I see no basis on which to
    interfere with the motion judges exercise of discretion in this case.

E.

Conclusion

[88]

In conclusion, therefore, I would dismiss both the appeal and the
    cross-appeal.

[89]

The respondent seeks costs of the appeal in the amount of $18,385.74. In
    my view, the amount claimed is somewhat high and substantially exceeds the
    costs incurred by the appellant. As a result, I would award the respondents
    costs fixed in the amount of $8,000, inclusive of disbursements and applicable
    taxes.

Paul Rouleau J.A.

I agree C.W. Hourigan
    J.A.

I agree Grant Huscroft
    J.A.

Released: March 02, 2017

[1]
As this court noted in
Singh v. Trump
, 2016 ONCA 747, [2016] O.J. No.
    5285, at para. 141, it is not entirely clear from the recent case law that an
    intention that the false representation be acted upon is a necessary element of
    a fraudulent misrepresentation claim, but that is immaterial to the present
    appeal.

[2]
The result in
Cattanach
was subsequently modified by legislation in
    three Australian states, essentially restricting recovery for involuntary
    parenthood to the extra cost of raising a child born with a disability: see B. Feldthusen,
    Supressing Damages in Involuntary Parenthood Actions, (2014) 29
Can. J.
    Fam. L.
11, n.12.

[3]
See, for example: J. K. Mason,
The Troubled Pregnancy: Legal Wrongs and
    Rights in Reproduction
(Cambridge: CUP, 2007), at p. 163; J. C. Thompson, You
    Should Never Look a Gift Horse in the Mouth: One-Size-Fits-All Compensation in
    Wrongful Conception (2012) 2
Westminster Law Review
73-96; N. M.
    Priaulx, Damages for the Unwanted Child: Time for a Rethink? (2005) 73
Medico-Legal
    Journal
152-63; B. Feldthusen, Supressing Damages,
supra
.

[4]
As reflected in recent amendments to the
Children's Law Reform Act
,
    R.S.O. 1990, c. C.12, the manner of conception may well be relevant, in itself,
    to the presumption of parentage for the purposes of determining child support
    obligations under the
Family Law Act
, for example in the case of
    insemination by a sperm donor. PPs parentage is not disputed here and those
    issues are distinct from the case at bar.

[5]
See also A. M. Payne, Sexual Partner's Tort Liability to other Partner for
    Fraudulent Misrepresentation Regarding Sterility or Use of Birth Control
    Resulting in Pregnancy, (1992) 2
A.L.R.
5th 301.

[6]

Although it is not relevant to this case, I note that the
    offence of assault (including sexual assault), unlike the tort of battery, need
    not necessarily include physical touching:
Criminal Code
, R.S.C. 1985,
    c. C-46, s. 265.


COURT OF APPEAL FOR ONTARIO

CITATION: Petroniuk (Re), 2017 ONCA 259

DATE: 20170328

DOCKET: C62464

Doherty, Huscroft and Miller, JJ.A.

IN THE MATTER OF:  Elizabeth Petroniuk

AN APPEAL UNDER PART XX.1 OF THE
CODE

Daniel F. Moore for the appellant

Michelle Campbell and Gavin S. MacKenzie for the
    respondent

Heard and released orally: March 24, 2017

On appeal against the disposition of the Ontario Review
    Board dated June 8, 2016.

ENDORSEMENT

[1]

The appellant argues that the Board erred in concluding that she
    continues to pose a significant threat to the safety of the public and that the
    continuation of the detention order is the least restrictive measure to deal
    with that risk.

[2]

We disagree.

[3]

The expert evidence is uncontested. The appellant suffers from schizophrenia
    and continues to express the same delusional beliefs that were present when she
    committed the index offense, which involved the physical assault of her mother.
    The appellant has no insight into her condition and would discontinue her
    treatment if given an absolute discharge.

[4]

Dr. Iosef, the appellants psychiatrist, acknowledged that the appellant
    is ready for community placement, but the appellant rejected placement when it was
    offered to her in the past. However, counsel informed the court that since the
    appeal in this matter was filed, the appellant has been placed in supervised
    accommodation in the community.

[5]

This is a positive development for the appellant. Nevertheless, it does
    not undermine the reasonableness of the Boards conclusion that the appellant
    continues to pose a significant threat to the safety of the public, and that
    conditional discharge would be inadequate to manage the risk posed by the
    appellant. The Hospitals ability to approve the appellants accommodation is
    possible only if a detention order remains in place.

[6]

In all of these circumstances the decision of the Board is supported by
    the record and is reasonable.

[7]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alexander, 2017 ONCA 181

DATE: 20170301

DOCKET: C60858

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hayden Alexander

Appellant

Jeffrey Fisher, for the appellant

Marie Comiskey, for the respondent

Heard: February 24, 2017

On appeal from the conviction entered on October 29, 2014
    and the sentence imposed on January 30, 2015 by Justice A. Stong of the Superior
    Court of Justice.

ENDORSEMENT

[1]

At the end of the hearing of this appeal, the court dismissed the appeals
    from conviction and sentence, with reasons to follow. These are those reasons.

[2]

The appellant was convicted of possession of crack cocaine for the purposes
    of trafficking and was sentenced to 18 months in jail, less six months credit
    for time served in pre-sentence custody.

A.

conviction appeal

[3]

The main issue at trial was whether the police had reasonable and
    probable grounds on which to base their arrest of the appellant and the
    subsequent search of the appellant and his vehicle. In the search the police
    found 8.3 grams of crack cocaine as well as various amounts of currency.

[4]

The police observed the vehicle driven by the appellant make three stops
    at three different locations in a period of 15 minutes. At the first stop, a known
    drug user was observed briefly getting into the passenger side of the vehicle
    and exiting it shortly thereafter. At the second location, about a minute after
    the vehicle had arrived, the appellant was observed leaving the front of the
    residence of known drug users and re-entering the vehicle. At the third
    location, a man got into the passenger side of the vehicle for a short period
    of time and then exited. After the third stop, the appellant was stopped and
    arrested.

[5]

The appellant argues that his arrest was unlawful and, as a result, the
    items seized in the search ought to be excluded under s. 24(2) of the
Canadian
Charter of Rights and Freedoms
. The trial judge dismissed the
    application, finding that the arresting officer had reasonable and probable
    grounds to arrest the appellant. He also found that, objectively, the grounds
    were justified. In his view, the arresting officer was entitled, in the
    totality of the circumstances, to infer that the appellant was trafficking in
    drugs.

[6]

On appeal, the appellant argues that the trial judge erred in dismissing
    the
Charter
application. He maintains that the police did not have the
    requisite grounds to make the arrest as the grounds provided were not
    objectively reasonable. In particular, he submits that the trial judge
    misapprehended the evidence, provided insufficient reasons and relied on
    factors not mentioned by the arresting officer in determining whether there
    were reasonable grounds for the arrest.

[7]

In our view, the conviction appeal must be dismissed.

[8]

The first ground advanced by the appellant is that the trial judge
    misapprehended the evidence in three respects:

1.

Whether it was reasonable for the arresting officer to have proceeded on
    the basis that the appellant had been the driver of the vehicle at all three
    locations;

2.

Whether there was an interaction with the appellant and another person
    at the second location; and

3.

Whether at the time of the arrest, the arresting officer had knowledge that
    the resident at the second location was associated with drug activities.

[9]

We do not give effect to this ground. The test for appellate review with
    respect to the misapprehension of evidence is a stringent one and, in our view,
    it has not been met in this case.

[10]

The
    trial judge was well aware of the gaps in the police officers observations of
    the appellants activities. He did not err in his assessment of the evidence.
    When viewed as a whole, the evidence supports the inferences drawn by the
    officer with respect to these three alleged misapprehensions.

[11]

The
    second ground of appeal is that the trial judges reasons were insufficient. In
    support of this ground, the appellant argues that the trial judges reasons do
    not adequately explain how he came to accept that the appellant was the driver
    of the vehicle, that the second residence was known for drug activity and that
    there was an interaction at the second residence.

[12]

Although
    the reasons are sparse, when read in the context of the record as a whole, they
    demonstrate that the trial judge was alive to the issues in this case,
    including the gaps and limits in the observations made by the arresting officer.
    He gave adequate reasons in support of the findings he made. The trial judge
    was not required, in his reasons, to refer to each piece of evidence given or
    missing with respect to the police observations made at the three locations. In
    his 16-page judgment, the trial judge provided a comprehensive summary of the
    surveillance conducted and articulated clear and cogent reasons for the
    conclusion that, both objectively and subjectively, the arresting officer had
    reasonable and probable grounds to believe that the offence of trafficking was
    occurring.

[13]

The
    third ground of appeal is that, in concluding that objective and subjective
    reasonable and probable grounds for the arrest existed, the trial judge relied
    on two factors that were not in evidence.

[14]

We
    do not give effect to this ground of appeal.

[15]

The
    two factors noted by the trial judge are that the appellants actions in the
    vehicle were clandestine so as to prevent police observation and that the
    vehicle was driven in a manner to avoid detection. As for the first, in our
    view, the arresting officers evidence did support the trial judges finding
    that the drug transactions themselves were made in a manner to avoid detection.

[16]

With
    respect to the second factor, we agree that the trial record does not support a
    finding that the appellants manner of driving was to avoid detection. However,
    it is not clear to us that this finding played a role in the trial judges
    reasoning on the conviction. If it did, it was of little or no significance. We
    view the error as minor and harmless in its effect and, if necessary, would
    apply the curative proviso.

B.

Sentence appeal

[17]

At
    trial, the appellant brought a constitutional challenge to s. 5(3)(a)(i)(d) of
    the
Controlled Drugs and Substance Act
, S.C. 1996, c. 19
which, when in effect, provided for a
    mandatory minimum sentence of one year for any person convicted of a designated
    substance offence within the previous ten years. The appellant fell within this
    category as he had been convicted of a drug offence in 2004. The trial judge
    dismissed the constitutional challenge and sentenced the appellant to 18
    months.

[18]

Subsequent
    to the sentencing in this case, the Supreme Court of Canada held that s.
    5(3)(a)(i)(d) was unconstitutional in the decision of
R. v. Lloyd
,
    2016 SCC 13, [2016] 1 S.C.R. 130. The appellant argues that the trial judge
    erred in law in rejecting his
Charter
challenge to the mandatory
    minimum. He also argues that the sentence violated the jump principle.

[19]

We
    reject this submission. The sentence imposed was not an application of the
    mandatory minimum and did not violate the jump principle. It falls within the
    acceptable range for this type of offence and an offender with prior
    convictions. In our view, the sentence is entirely fit. In any event, we
    understand that the appellant has served his sentence and the sentence appeal
    is therefore moot.

C.

Conclusion

[20]

For
    these reasons, both the conviction and sentence appeals are dismissed.

E.A. Cronk J.A.

Paul Rouleau J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Andersen, 2017 ONCA 234

DATE: 20170322

DOCKET: C61209

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arthur Brown Andersen

Applicant/Appellant

Robert Sheppard, for the appellant

David Friesen, for the respondent

Heard: March 20, 2017

On appeal from the sentence imposed on September 23, 2014
    by Justice Goldstein of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of aggravated assault with a weapon for
    which he received a sentence of 9 years less 18 months pre-sentence custody. He
    argues that the sentencing judge erred in failing to consider whether intent to
    kill was the only available inference. Intent to kill was found to be an
    aggravating factor. He also argues that given the mitigating factors, the
    sentencing judge failed to apply the principle of proportionality.

[2]

We do not agree with these submissions. The sentencing judge was alert
    to and carefully balanced the mitigating and aggravating factors. Further, the
    sentencing judge was entitled to take into account the seriously aggravating
    factor that the appellant intended to kill the complainant. He committed no
    error in his analysis. The sentence is fit in the circumstances of this case.
    Leave to appeal sentence is granted, but the appeal is dismissed.