COURT OF APPEAL FOR ONTARIO

CITATION: Knight v. Knight, 2019 ONCA 538

DATE: 20190626

DOCKET: C66133

Feldman, Brown and Miller JJ.A.

BETWEEN

David Henry Knight

Applicant (Appellant)

and

Christine MacDonald Knight

Respondent (Respondent)

Gary Joseph and Kenneth Younie, for the appellant

John P. Schuman, for the respondent

Heard: February 21, 2019

On appeal from the order of Justice Clifford S. Nelson of
    the Superior Court of Justice, dated May 25, 2018, and from the costs order,
    dated October 4, 2018.

REASONS FOR DECISION

Overview

[1]

This appeal arises out of hard-fought  and expensive  matrimonial
    litigation. Mr. Knight, the appellant, argues that the trial judge erred in how
    he applied provisions of the parties marriage contract governing equalization
    of net family property. He also seeks leave to appeal an award of costs to the
    respondent in the amount of $490,000.

[2]

As set out below, we do not agree that the trial judge made any error
    with respect to the equalization of net family property, and the appeal on that
    issue is dismissed. Further, the test for leave to appeal the costs award is
    not met, and the motion for leave to appeal costs is therefore also dismissed.

Equalization of property

[3]

The trial judge found the parties marriage contract, dated June 24,
    2011, to be valid. The marriage contract excluded the appellants corporate
    assets from division. It specifically provided that the parties agreed to
    exclude [the appellants] interest in the Corporations
and monies owing to
    him
from the Corporations from the satisfaction of any judgment,
    settlement or agreement which may require [the appellant] to transfer assets or
    pay monies to [the respondent] as part of an equalization payment to her under
    the
Family Law Act
, as amended (emphasis added).

[4]

However, a question arose as to the status of monies owed by the
    appellant to his corporations.

[5]

The appellant was unsuccessful at trial in seeking an unequal division
    of net family property. After the reasons were issued, the court wrote to the
    parties, requesting that they advise as to the specific quantum of the
    equalization payment and the amounts of child and spousal support payable.  The
    parties were unable to reach an agreement on the calculation of the
    equalization payment. Counsel for the respondent wrote to the court on July 26,
    2018, with the agreement of counsel for the appellant, to explain the nature of
    the disagreement. The letter to the court set out the parties competing
    positions:

Paragraph 47 of your judgment reads as follows:

[T]here are two items in dispute under the heading Promissory
    Notes (see part 2: Value of Debts and Other Liabilities on Valuation Date).
    They are of
de minimis
value, and I have ignored them.

Mr. Knight believes that in paragraph 47 of your judgment, you
    also intended to ignore the promissory notes listed at part six of the net
    family property calculation advanced by Ms. Knight (and included in the
    comparison of net family property statements filed during the trial) because
    paragraph 47 is the only place in your judgment where you make reference to
    these promissory notes and at paragraph 39 you stated you were using Mr.
    Knights calculation as your reference point. Further, you found that no
    other corporate debts or assets were included in his net family property.

Ms. Knight believes that you did not intend to ignore the
    promissory notes on the date of marriage because at that time, they were not
de
    minimis
, having a value of $67,315, which was reported as a debt owed by
    David to the corporations in the corporate [
sic
] on the corporate
    financial statements (exhibits 44 and 45), and because at paragraph 39 of your
    decision, you stated that you were not using Ms. Knights calculation because
    she had noted the book value of the corporations in her calculation, which had
    no impact on the calculation in light of your decision with regard to the
    marriage contract.

[6]

The trial judge, in his endorsement dated October 4, 2018, stated that
    the respondents position was correct. He added, I did not intend to ignore
    the value ($67,315) of the promissory notes on the date of marriage. This
    amount is not
de minimis
.

[7]

On appeal, the appellant argues that the trial judge did not provide
    sufficient reasons on this issue to allow for appellate review. We disagree.
    The trial judge made an obvious slip in his initial reasons in characterizing
    $67,315 as a
de minimis
amount. Consequently, he did not adequately
    resolve the issue of how to treat the promissory notes in the net family
    property calculation. When this was brought to his attention by counsels
    letter, he was presented with two competing arguments as to how the debts
    should be treated. He accepted the respondents argument and rejected the
    appellants. Nothing further was required.

[8]

The appellant argues that the trial judge erred in including the
    promissory notes in the calculation of net family property because the
    promissory notes are corporate in nature and therefore excluded by the
    marriage contract from the calculation of net family property. Again, we
    disagree. The marriage contract specifically excludes from the net family
    property calculation monies owed to the appellant by the corporations. It does
    not exclude monies owed by the appellant to the corporations, which are
    personal debts. The promissory notes are not, in the sense used in the marriage
    contract, corporate in nature.

[9]

Further, we do not accept the appellants argument that there was no
    evidence to support the finding of a debt of $67,315. As the respondent noted,
    at trial the appellant did not dispute that he owed $67,315 to the corporations
    at the date of marriage. His argument was, as it is on appeal, that the
    promissory notes are excluded by the marriage contract.

Costs  leave to appeal

[10]

Far
    overshadowing the amount in issue in the substantive appeal is the costs order
    of $490,000 plus HST, enforced through the Family Responsibility Office. The
    appellant seeks leave to appeal. As explained below, we have concluded that
    leave to appeal the costs order should not be granted.

[11]

More
    than half of the costs award is attributable to the fees of the respondents
    accounting expert. At the hearing of the appeal, we requested that the
    respondent submit a brief to the court consisting of the accountants invoices
    with brief submissions to provide context. The appellant provided reply
    submissions.

[12]

The
    trial judge was cognizant that the costs award was high for a 13-day trial.
    However, the trial judge placed the blame entirely at the feet of the
    appellant, whose approach to the litigation he characterized as unreasonable:
    [the appellants] tactics coupled with his unacceptable offers to settle,
    leads me to conclude that his goal was to ensure that [the respondent] suffer a
    considerable financial defeat even if she enjoyed success at trial. The
    respondents legal fees were in the amount of $265,000, while the appellants
    legal fees came in at $172,000. The appellant did not object to any of the line
    items detailed in the bill of costs, but instead argued that he did not have a
    fair opportunity to review the bill of costs at trial. The trial judge rejected
    this submission. On appeal, beyond arguing that the overall quantum is
    disproportionate to the litigation, the only discrete error alleged is in awarding
    costs for previous steps taken in the litigation where no award of costs was
    made. The appellant objected to the vast majority of time docketed prior to
    June 2016, as this, he argued, was a reliable cut-off point for steps in the
    litigation that were governed by prior determinations that no costs would be
    ordered. He further argued that his own bill of costs was a reliable guide as
    to what would constitute a reasonable award.

[13]

The
    largest component of the costs award is a disbursement of $228,306 paid to the
    respondents accounting expert. Of this, $60,000 was for the preparation of a
    report on the appellants income. The rest of the fees related to chasing
    disclosure, which was a significant problem for the respondent, and for
    attendances of the accountant at the disclosure motion, mediation, and trial.
    The respondent delivered an offer to settle prior to each stage and
    demonstrated she was prepared to settle the case on a reasonable basis.

[14]

The
    appellant also seeks to appeal the decision to make the entirety of the costs
    award enforceable as support by the Family Responsibility Office, as opposed to
    only that part of the costs award attributable to the issue of support.

[15]

As
    set out in s. 133(b) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43, a discretionary order of costs may not be appealed without leave. Leave
    to appeal a costs order will not be granted save where there are strong grounds
    upon which the appellate court could find that the trial judge had erred in the
    exercise of his or her discretion:
Brad-Jay Investments Ltd. v. Szijjarto
(2006), 218 O.A.C. 315 (C.A.), at para. 21. An appellate court should set aside
    a costs order only if the trial judge has made an error in principle or if the
    costs award is plainly wrong: see
Hamilton v. Open Window Bakery Ltd.
,
    2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

[16]

The
    appellant has not met this high threshold. The costs appeal is fact-based and
    seeks to have this court perform a line-by-line analysis that was not pursued
    at trial. The trial judge correctly referred to the relevant factors to be
    considered in awarding costs under Rule 24(11). We see nothing in the costs
    endorsement that reveals an error in principle or an error in the exercise of
    discretion on the part of the trial judge. Although the appellant frames the
    proposed appeal as a question of the proportionality of the costs award, there
    is no genuine argument advanced as to how the order is disproportionate, given
    the trial judges explanation that the costs order is necessary to defeat what
    he perceived to be the appellants tactic of ensuring the respondent would not
    benefit from her success in the litigation. In this instance, the appeal to
    proportionality is nothing other than an attempt to have this court
    second-guess the quantum of the award.

[17]

With
    respect to the FRO order, there is no error in principle in the trial judge not
    having expressly addressed whether a lesser sum would have sufficed for
    enforcement. The enforcement decision is discretionary. Again, the appellant
    seeks to have this court descend into a detailed analysis of the respondents
    dockets to determine whether some portion of the costs award ought to have been
    attributed to property division matters rather than support. This was not
    pursued at trial and this court will not grant leave.

Disposition

[18]

The
    appeal is dismissed, and the motion for leave to appeal the costs award is
    dismissed. The respondent is awarded costs of the appeal in the amount of
    $20,000 inclusive of disbursements and HST.

K. Feldman J.A.

David Brown J.A.

B.W. Miller J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Laureat A+ Ltd. c. Borg, 2019
    ONCA 456

DATE : 20190604

DOSSIER : C65317

Les juges Sharpe, van Rensburg
    et Harvison Young

ENTRE

Laureat
    A+ Ltd.
,
Cécile Mbaya
, Moss Mbaya, Patrick
    Mbaya (mineur à linstance) représenté par sa mère, Cécile Mbaya (tutrice à
    linstance), Marlyn Mbaya (mineure à linstance) représenté par sa mère, Cécile
    Mbaya (tutrice à linstance)

Appelants

et

Paul Borg, 4387872 Canada Inc.
    & 122703 Canada Inc.

Intimés

Kibondo Kilongozi, pour les appelants

Denis Cadieux, pour les intimés

Date de laudience : Le 27 mai 2019

Décision rendue séance tenante.

En
    appel du jugement de la juge S. Gomery de la Cour supérieure de lOntario, en
    date du 27 mars 2018.

MOTIFS
    DE LA COUR

[1]

Les appelants soulèvent deux motifs dappel :

1.
Responsabilité pour léchec de la
    garderie

[2]

La juge de première instance a constaté que les
    appelants nont pas réussi à prouver que les intimés ont provoqué léchec de leur
    entreprise de garderie et quils sont donc responsables pour les pertes liées à
    celle-ci. Cette contestation est fondée sur la preuve. Les appelants étaient
    déjà en défaut de payer quatre mois de loyer lorsque la demande pour un permis
    de changement dutilisation a été faite. La juge de première instance a trouvé
    le témoignage de Mme Mbaya moins crédible que celui de M. Borg.

[3]

Nous ne voyons aucune erreur de droit ou erreur
    manifeste et dominante de fait qui permettrait à cette cour dintervenir.

2.
Enrichissement sans cause

[4]

Les appelants étaient en défaut de payer quatre
    mois de loyer lorsque lintimé a résilié le bail. Aucune preuve ne fut
    présentée selon laquelle les rénovations faites par les appelants auraient
    profité aux intimés. De toute façon, un propriétaire est en droit de garder les
    améliorations à la résiliation du bail. Largument selon lequel les intimés
    sont responsables pour enrichissement sans cause est sans fondement.

[5]

En ce qui concerne la disposition des biens des
    appelants, la juge de première instance a accordé 2 000 $. Les appelants nont
    soulevé aucune erreur concernant cette décision.

Conclusion

[6]

Lappel est donc rejeté, avec dépens fixés à 12 500
    $.

Robert
    J. Sharpe j.c.a.

K.
    van Rensburg j.c.a.

A.
    Harvison Young j.c.a.


COURT OF APPEAL FOR ONTARIO

CITATION: Makwana v. Bishnu, 2019 ONCA 543

DATE: 20190628

DOCKET: C64355

Sharpe, Trotter and Harvison Young JJ.A.

BETWEEN

Dipikaben Makwana

Applicant
    (Appellant/
Respondent by way of cross-appeal)

and

Sewsankar Bishnu

Respondent
    (Respondent)

and

Surujpaul Bishnu

Respondent
    (Respondent/
Appellant by way of cross-appeal)

and

Howard Melvin Wasserman

Intervener
    and Trustee in Bankruptcy for Sewsankar Bishnu

Gary S. Joseph and Michaela Newman, for
    the appellant

Abba
    Chima, for the respondent, Sewsankar Bishnu

Jameel
    Madhany, for the respondent, Surujpaul Bishnu

Howard Melvin Wasserman, in person

Heard: May 29, 2019

On appeal from the
    order of Justice Thomas A. Bielby of the Superior Court of Justice, dated August
    23, 2017, with reasons reported at 2017 ONSC 4916.

REASONS FOR DECISION

[1]

The parties, Dipikaben Makwana and Sewsankar
    Bishnu, had a romantic relationship and lived together for a relatively short
    period of time in the 1990s. They had a daughter who was born in January 1995.
    Following the breakdown of their relationship, the appellant sought custody, as
    well as child and spousal support. In a judgment rendered in October 1999, the
    appellant was awarded sole custody and child and spousal support. The trial
    judge made adverse findings as to the credibility of the respondent and found
    that he had attempted to conceal his true income. The trial judge awarded
    spousal support at $1,750 per month and child support at $733 per month based
    upon the income he imputed to the respondent of $100,000. The trial judge also
    ordered that the spousal support could be reviewed in three years without the
    necessity of proving a material change in circumstances.

[2]

The respondent did not appeal the judgment but
    failed to comply with the support orders and the order for costs. He filed for
    bankruptcy in 2003 and remains undischarged.

[3]

The appellant moved with her daughter to the
    United States in 2000, and remarried in 2003.  She worked as a computer
    programmer until 2009.

[4]

The respondent brought this motion to vary the
    spousal and child support in October 2011. He brought an earlier motion to vary
    in 2002 but he was not permitted to proceed with any such motion until he paid
    the outstanding costs from trial.  Evidence from a CRA audit showed that the
    respondents income for 1996, 1997 and 1998 was $110,346, $220,706 and $211,040
    respectively but it declined to $59,541 in 1999. From 2002 to 2009, his
    disclosed income was essentially zero. He led evidence indicating that he has
    suffered from physical and mental health issues since 1999 and that he is
    living on social assistance.

[5]

The appellant sought an order setting aside
    certain conveyances made by the respondent as fraudulent. As a result of that
    application, both Surujpaul Bishnu and the respondents trustee in bankruptcy
    were added as parties.

[6]

The motion judge made adverse findings of
    credibility against the respondent but did find that as time passed he
    developed medical problems that impacted upon his ability to earn income. The
    motion judge found that given the appellants employment and remarriage, there
    had been a material change in her circumstances and that spousal support should
    terminate as of December 31, 2002. He refused to vary the amount of spousal
    support ordered by the 1999 judgment up to that point.

[7]

The motion judge ordered that child support
    terminate as of June 30, 2013, at which date the daughter was 18 years old and was
    no longer in full-time attendance at school. He continued the amount ordered by
    the 1999 judgment until December 31, 2003. However, due to the respondents
    health issues and declining income, he reduced the amount of child support from
    2004 to 2009 to $303 monthly, and from 2010 to 2013 to $176 monthly.

[8]

The motion judge dismissed the fraudulent
    conveyance application.

ISSUES

[9]

The appellant submits that the motion judge
    erred by varying the orders for child and spousal support. The appellant,
    supported by the trustee in bankruptcy, also appeals the decision of the motion
    judge dismissing the fraudulent conveyance application.

[10]

Surujpaul Bishnu cross-appeals the application
    judges refusal to award him costs despite the dismissal of the fraudulent
    conveyance application.

ANALYSIS

1.
Child support

[11]

The motion judge appears to have simply fixed
    child support on the basis of what he found the respondents income had likely
    been. He did not consider the factors mandated by
D.B.S. v. S.R.G.
, 2006 SCC 37, [2006] 2 S.C.R. 231. In our view, that amounted to an
    error of law.

[12]

Of particular concern is: (1) whether there is
    a reasonable excuse for the respondents delay in applying for relief; and (2)
    the respondents conduct, including whether he made any effort to comply with
    the order and his compliance with financial disclosure requirements. As we have
    noted, both the motion judge in 2017 and the trial judge in 1999 made adverse
    findings as to the respondents credibility and compliance with disclosure
    requirements. He has a long history of non-compliance with the support order.
    While the respondent did launch a motion to vary in 2002, he failed to proceed
    with that application as he was unwilling or unable to satisfy prior costs
    awards. That, in our view, does not amount to a satisfactory excuse for failing
    to proceed more expeditiously with the application to vary. We are also mindful
    of the fact that the respondents failure to make child support payments may
    have had an adverse impact on the childs wish to pursue post-secondary
    education. On the other hand, the ongoing financial capacity of the respondent,
    including his ability to make payments towards outstanding arrears is a
    relevant factor: see
Gray v. Rizzi
, 2016 ONCA
    152, 129 O.R. (3d) 201, at paras. 57-60.

[13]

The appellant argues that the motion judge erred
    by departing from the amount imputed for the appellants income in the 1999
    judgment, on the bases that there was no evidence to support the new imputation
    and that the motion judge failed to give proper weight to the imputation of
    income in the 1999 judgment.

[14]

While the evidence of the respondents income
    during the relevant period may have been limited, the motion judge was clearly
    aware of the unreliability of the respondent as a witness and of the gaps in
    the evidence and he took this into account when imputing income. Moreover, there
    was some evidence to support his findings as to the respondents income for the
    years following 1999. While the motion judge described the figures he arrived
    at as somewhat arbitrary, he did base the figures on the evidence before him
    which included the respondents income tax returns, information from his occasional
    employer, and medical evidence. In our view, the motion judge also did not err
    in law by failing to pay adequate attention to the income imputed in the 1999
    judgment. There was sufficient evidence that his income had changed
    significantly since that time.

[15]

Taking all these factors into account, it is our
    view that the appropriate order is to maintain the motion judges order
    terminating child support as of June 30, 2013. However, it is appropriate to
    vary that part of the motion judges order reducing the $733 child support
    order from 2004 to 2009 to $303 monthly, and from 2010 to 2013 to $176 monthly.
    In our view, that would unduly reward the respondent for his failure to move
    more quickly, his failure to make any effort to comply with the 1999 order, and
    his failure to comply with disclosure. On the other hand, in view of the motion
    judges findings as to the respondents income and the need to fashion an order
    that is realistic in all the circumstances. For the purpose of fixing the
    arrears, we reduce the monthly child support from 2004 to 2013 from $733
    monthly to $366 monthly.

2.
Spousal support

a)

Alleged error interpreting the review clause

[16]

We do not agree with the appellants submission
    that the motion judge erred by treating the review clause in the 1999 judgment
    as a termination clause. As we read his reasons, he simply took into account
    that the order provided for review after three years with no need to show
    material change in circumstances. The parties were involved in a relatively
    short-term relationship and the appellant was capable of earning an income. The
    1999 judgment clearly contemplated that the appellant would have become self-sufficient
    within three years and this turned out to be the case.  By the end of 2002, she
    was earning a significant income and she had married someone who also earned a
    significant income. The detailed reasons the motion judge gave as to change in
    circumstances indicate that he did not simply treat the review clause as if it
    called for automatic termination of spousal support. It was simply a factor he
    took into account in assessing when to make the change.

b)

Material change of circumstances

[17]

While, as we have stated in relation to the
    issue of child support, the motion judge failed to refer to the
D.B.S.
factors, we do not agree with the submission that that failure
    infected his treatment of spousal support. While considerations similar to the
D.B.S.
factors are relevant to spousal support, spousal support has a different
    legal foundation than child support. There is no presumptive entitlement to
    spousal support:

Kerr v. Baranow
, 2011
    SCC 10, [2011] 1 S.C.R. 269, at paras. 207-208. The circumstances of the spouse
    seeking support is an important factor. The motion judges variation of the
    arrears for spousal support did not rest upon the means or income of the
    respondent but rather on primary question of the appellants entitlement to support
    and the material change of circumstances and to her means and needs. Ultimately
    the Supreme Court has emphasized the need for flexibility and a holistic view
    of each matter on the basis of its particular factual matrix:
Kerr
, at para. 12;
D.B.S.
,
at para. 99.

[18]

We do not agree that the motion judge erred by
    finding that there was a material change in circumstances relating to the means
    of the appellant as of December 2002. There was evidence that the appellant was
    earning a significant income as a computer programmer and that she had
    remarried. The motion judge did not treat the appellants remarriage as an
    automatic change of circumstances. Her tax assessments show an income rising
    from $29,000 in 2003 to $114,000 in 2011. By the time of the application,
    several years had gone by and the motion judge was in a strong position to
    assess the appellants earnings and the significance of her marriage in
    relation to the respondents support obligation. In our view, his order
    terminating spousal support on account of the appellants changed circumstances
    as of December 31, 2002 was justified on this record.

3.
Fraudulent Conveyance Application

[19]

The application judge found that while the
    conveyance by the respondent of his interest in 89 Main Street to Danwantie Jaginarine
    in December 1999, was fraudulent, the subsequent transfer to Surujpaul Bishnu in
    2002 was not. The basis for this conclusion was the factual finding that
    Surujpaul Bishnu acted in good faith and without any knowledge of fraudulent
    intent within the meaning of s. 2 of the
Fraudulent Conveyances Act
, R.S.O. 1990, c. F.29. Section 3 provides that s. 2  voiding
    transfers with intent to defeat, hinder, delay or defraud creditors  does
    not apply where the transferee did not have notice or knowledge of the
    fraudulent intent.

[20]

We see no merit in the submission that the
    motion judge erred in law by finding only that the transferee lacked
    knowledge but failed to consider whether the transferee had notice. This
    proposition does not appear to be supported by the case law. Moreover, the
    motion judges finding that Surujpaul Bishnu acted in good faith amounts to a
    finding that he lacked awareness, whether it be labelled knowledge or
    notice, of any fraudulent intent.

[21]

Nor are we persuaded by the trustees argument
    that as there was no actual sale between Danwantie Jaginarine and Surujpaul
    Bishnu, s. 3 of the
Act

does not apply. The
    mortgage on the property was in default and subject to power of sale. Surujpaul
    Bishnu, acting in good faith, acquired the property by providing valuable
    consideration. He discharged the mortgage and two other charges. No valuation
    evidence was led to indicate that the consideration was grossly inadequate.

[22]

We note as well the application judges finding
    that while Surujpaul Bishnu is the respondents brother, Surujpaul Bishnu has
    been in possession of the property and paid all mortgage and other expenses for
    over 15 years and there is no evidence to suggest that the respondent has or
    expects to have any interest in the property.

[23]

The appellant and the trustee may have a remedy
    against the proceeds of the earlier conveyance that was found to be fraudulent,
    but as the property has been transferred to a good faith purchaser for value,
    they have no remedy against the property or the transferee.

4.
Cross-appeal re costs

[24]

When he rendered his judgment on August 23, 2017,
    the application judge asked counsel to arrange a one-half day appearance to
    argue costs if they could not agree. No appearance was arranged and on October
    11, 2017, the application judge advised counsel that unless he heard from them
    within 10 days, he would assume costs were not in issue. Surujpaul Bishnus
    counsel (not counsel on this appeal) wrote on October 17, 2017 asking for more
    time to make costs submissions. No further submissions were made. Almost three
    months later, on January 15, 2018, the application judge issued an endorsement
    stating that as he had received no submissions and as [m]ore than sufficient
    time has elapsed for submissions on costs, there would be no order as to
    costs.

[25]

We do not accept the submission that Surujpaul
    Bishnu was denied procedural fairness and that the application judge erred by
    refusing to order costs.  The application judge set out a clear procedure to be
    followed for making costs submissions. Months went by and counsel made no costs
    submissions. In these circumstances, the application judge was entitled to put
    an end to the matter and order that no costs award would be made.

DISPOSITION

[26]

Accordingly, the appeal against the variation of
    the child support order is allowed in part. The appeal against the spousal
    support order is dismissed, as is the appeal against the dismissal of the
    fraudulent conveyances application. The cross-appeal as to costs is dismissed.

[27]

There has been divided success on this appeal.
    If the parties are unable to agree as to costs, they may make brief written
    submissions, from the appellant, within 15 days of the release of these reasons
    and from the respondents, within 10 days thereafter.

Robert J. Sharpe J.A.

G.T.
    Trotter J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Mikelsteins v. Morrison Hershfield Limited, 2019
    ONCA 515

DATE: 20190620

DOCKET: C66315

Lauwers, Fairburn and Nordheimer JJ.A.

BETWEEN

Ivars Mikelsteins

Plaintiff (Respondent)

and

M
orrison Hershfield Limited

Defendant (Appellant)

David Greenwood, for the appellant

James Heeney and Julia Burke, for the respondent

Heard: June 12, 2019

On appeal from the judgment of Justice Shaun Nakatsuru of
    the Superior Court of Justice, dated November 22, 2018, with reasons reported
    at 2018 ONSC 6952.

Nordheimer J.A.:

[1]

The appellant Morrison Hershfield Limited (MHL) appeals from the partial
    summary judgment awarding the respondent Ivars Mikelsteins, a former employee
    of MHL, an increase in the value of shares that he held in the parent
    corporation of MHL, along with a share bonus, through the period of reasonable
    notice.

Background

[2]

MHL is an employee-owned engineering firm that provides engineering and
    construction consulting services. Mr. Mikelsteins was employed by MHL for 31
    years, most recently in the position of Director, Business Development. On
    October 26, 2017, Mr. Mikelsteins was notified in writing that his employment
    was being terminated without cause, effective immediately.

[3]

Mr. Mikelsteins commenced an action for wrongful dismissal. He then
    brought a motion for summary judgment. In granting partial summary judgment,
    the motion judge awarded Mr. Mikelsteins damages for wrongful dismissal based
    on a notice period of 26 months. Since partial summary judgment was being
    awarded prior to the expiration of the notice period, the motion judge reserved
    to himself any challenge that MHL might wish to bring, in the future, regarding
    Mr. Mikelsteins mitigation efforts. None of those determinations are being
    appealed.

[4]

The motion judge also made a determination regarding the value that Mr.
    Mikelsteins was entitled to be paid for the shares that he held in MHLs parent
    corporation, along with his entitlement to a share bonus. Those determinations are
    the subject of this appeal.

[5]

Mr. Mikelsteins was one of a select group of MHL employees who were
    eligible to purchase shares of MHLs parent corporation, Morrison Hershfield
    Group Inc. Those shares were governed by the terms and conditions of the
    Amended and Restated Morrison Hershfield Group Inc. Shareholders Agreement,
    dated January 18, 2013 (the Shareholders Agreement). At the time that his
    employment was terminated, Mr. Mikelsteins owned a total of 5,108 shares.

[6]

Under the terms of the Shareholders Agreement, Mr. Mikelsteins and
    other shareholders were eligible to receive annual Share Bonuses. The share
    bonus payable in respect of each share is determined by an objective
    calculation based on the companys financial results. As a result, the total
    share bonus payable to each shareholder depends on the total number of shares
    that the shareholder had previously decided to purchase. The share bonus is not
    related to the shareholders contributions as an employee of MHL. It is, in
    effect, a dividend.

[7]

With respect to Mr. Mikelsteins shareholdings, the motion judge
    determined that he was entitled to: (i) hold the shares until the end of the reasonable
    notice period (i.e. 26 months after he was notified of his termination and his
    association with MHL had ceased); and (ii) receive damages for the loss of the share
    bonus that would have been payable during such 26 month period.

[8]

Article 3 of the Shareholders Agreement deals with Automatic Transfer
    Notices, and applies in situations where, among other things, a shareholder
    resigns, is terminated, becomes bankrupt, or dies. Article 3.2 applies in cases
    of termination, and states:

A Shareholder whose association with the Corporation and its
    Affiliates ceases by reason of termination by the Corporation of his/her
    employment with the Corporation and its Affiliates shall, immediately after
    such termination, be deemed to have given a Transfer Notice covering all of the
    Shares held by him/her on a date which is 30 days from the date he/she is
    notified of such termination by the Corporation.

The Shareholders Agreement proceeds to specify that a
    shareholder that is deemed to have given a Transfer Notice under Article 3 is
    entitled to the Fair Value of his or her shares (as that term is defined in
    the Shareholders Agreement).

[9]

MHL takes the position that Mr. Mikelsteins association with it had
    ceased by reason of the termination of his employment on October 26, 2017,
    which became the trigger date for purposes of the above provision. In
    accordance with that position, MHL paid Mr. Mikelsteins the sum of $999,431.28 (representing
    the Fair Value of his shares on November 25, 2017, which is 30 days from
    October 26, 2017, the date of his termination).

[10]

The
    motion judge disagreed with MHLs position. He concluded that Mr. Mikelsteins
    was entitled to receive payment for his shares with the value calculated at the
    end of the reasonable notice period. The motion judge also concluded that Mr.
    Mikelsteins was entitled to the share bonus that would have accrued during the
    notice period. The motion judge reached this conclusion based on his view that
    the basic principle to be applied is to put the person in the same position
    they would have been in if lawfully terminated: at para. 37. In so concluding,
    the motion judge relied on this courts decision in
Paquette v. TeraGo
    Networks Inc.,
2016 ONCA 618, 352 O.A.C. 1.

Analysis

(i)

The standard of review

[11]

I
    start with the standard of review applicable to the motion judges decision. MHL
    submits that the standard of review is correctness because the Shareholders
    Agreement is a standard form contract (sometimes called a contract of adhesion).
    Mr. Mikelsteins submits that the standard of review is reasonableness because
    the interpretation of the Shareholders Agreement involves a finding of mixed
    fact and law.

[12]

I
    agree with MHL. The evidence is that the Shareholders Agreement is a take it
    or leave it form of contract. An employee who is invited to become a party to
    the Shareholders Agreement has no ability to negotiate the terms of that
    agreement. The Shareholders Agreement is therefore fairly characterized as a
    contract of adhesion. Consequently, the factual matrix plays less of a role in
    the interpretative exercise. Further, the interpretation of the Shareholders
    Agreement will have implications for all of the other shareholders, both
    existing and future. It is important therefore that the Shareholders Agreement
    be interpreted in a consistent manner. All of this leads to the conclusion that
    the proper standard of review is correctness. As Wagner J. said in
Ledcor
    Construction Ltd v. Northbridge Indemnity Insurance Co,
2016 SCC 37,
    [2016] 2 S.C.R. 23, at para. 46:

Where, like here, the appeal involves the interpretation of a
    standard form contract, the interpretation at issue is of precedential value,
    and there is no meaningful factual matrix specific to the particular parties to
    assist the interpretation process, this interpretation is better characterized
    as a question of law subject to correctness review.

(ii)

The proper valuation of the shares and approach to share bonus

[13]

Turning
    to the central issue, in my view, the motion judge erred in concluding that Mr.
    Mikelsteins was entitled to compensation in respect of his shares calculated at
    the end of the notice period. He did so by improperly conflating Mr.
    Mikelsteins entitlement to compensation arising from the breach of his
    contract of employment with Mr. Mikelsteins contractual entitlements
    respecting his shares. Mr. Mikelsteins received his shares pursuant to the
    Shareholders Agreement. It is the terms of the Shareholders Agreement that
    determine Mr. Mikelsteins rights with respect to those shares. The common law relating
    to compensation for breaches of a contract of employment does not apply to Mr.
    Mikelsteins entitlements regarding his shares.

[14]

This
    fundamental distinction is why the cases relied upon by Mr. Mikelsteins,
    including
Paquette
, do not direct the proper result in this case. Rather,
    it is governed by the decisions of this court in cases such as
Evans v.
    Paradigm Capital Inc.,
2018 ONCA 952, 51 C.C.E.L. (4th) 21 which, in turn,
    confirmed the conclusion reached in
Love v. Acuity Investment Management
    Inc.
, 2011 ONCA 130, 277 O.A.C. 15. In
Love
, where virtually the
    identical issue was raised, Goudge J.A. said, at para. 54:

I therefore conclude that the appellant ceased to be an
    employee of the respondent on May 3, 2005, and that the trial judge erred in
    using the end of the notice period rather than his termination date as the
    trigger for the respondent's right to repurchase and for the valuation.

[15]

The
    motion judge attempted to distinguish the decision in
Love
from the
    situation before him, on the basis of the specific wording of the terms of the
    agreement that were at issue in
Love
. In particular, the motion judge
    relied on the fact that the agreement in that case used the language employment
    is terminated
without cause
 (emphasis added)
    whereas, in this case, the Shareholders Agreement refers simply to
    termination: at paras. 42-46. The respondent argues that the motion judge was
    correct to distinguish
Love
on that basis. I disagree.

[16]

With
    respect, contractual rights differ from common law rights. Contractual rights
    depend on the terms of the contract to which the parties have agreed. The
    principle enunciated in
Love
, and reiterated in
Evans
, is that
    there is a difference between what a dismissed employee is entitled to as
    damages in lieu of notice upon termination of the employment contract and what
    the employee is entitled to under the terms of more specific contracts.

[17]

Often,
    the terms of a dismissed employees rights to pension payments (e.g.
Taggart
    v. Canada Life Assurance Co.
, [2006] O.J. No. 310 (C.A.), bonuses (e.g.
Lin
    v. Ontario Teachers' Pension Plan Board
, 2016 ONCA 619, 352 O.A.C. 10, or
    similar entitlements, fall to be determined by the remedies that arise from a
    breach of the contract of employment where the employer fails to give proper
    notice. In such cases, the dismissed employee will be entitled to the benefits he
    or she would have received during the notice period. That, however, is not this
    case.

[18]

As
    pointed out in
Love
, the fact that a dismissed employee may be
    entitled to certain benefits during the notice period does not change the date
    when his or her employment ends. In this case, Mr. Mikelsteins employment
    ended on October 26, 2017. His entitlements relating to his shares are separate
    and apart from the relief to which he is entitled arising from his contract of
    employment. His entitlements relating to his shares fall to be determined by
    the terms of the Shareholders Agreement.

[19]

In
    that regard, the terms of the Shareholders Agreement are clear. Once the
    shareholders association with the Corporation and its Affiliates ceases by
    reason of termination by the Corporation of his/her employment with the
    Corporation a process is triggered whereby the shareholders shares will be
    repurchased either by the corporation or the existing shareholders. The
    Shareholders Agreement expressly provides that the corporation becomes
    entitled to repurchase the shares 30 days from the date the shareholder is
    notified of such termination by deeming the shareholder to have delivered a
    Transfer Notice as at that date. Where the corporation elects to purchase the
    shares, this in turn fixes the valuation date for the shares.

[20]

None
    of this turns on whether the employee has been terminated with or without
    cause. I note, for example, that the employee in
Evans
had not been
    terminated without reasonable notice but rather had taken the position that she
    had been constructively dismissed. Nonetheless, this court applied the
    principle from
Love
because the terms of the shareholders' agreement
    in that case clearly required the appellant to tender her shares for
    redemption on termination of her employment:
Evans,
at para. 27.

[21]

Similarly
    here, the Shareholders Agreement uses the cessation of Mr. Mikelsteins
    employment as the triggering event for the process to transfer his shares. The
    termination occurred on October 26, 2017. There is a very plain and obvious
    reason why a corporation, that is employee owned, and which has terminated an
    employee who also happens to be a shareholder, would wish to commence the
    process of repurchasing the employees shares the moment that employee is told
    of his or her dismissal, rather than at the end of the notice period.
    Understandably the corporation would not wish an employee to be able to
    exercise all of the rights of a shareholder once their employment is
    terminated.

[22]

This
    conclusion also deals with the share bonus issue. Once it is concluded that the
    shares had to be transferred resulting from Mr. Mikelsteins termination, he
    ceased to have any entitlement to any bonus arising from the shares that he no
    longer owned.

(iii)

Employment Standards Act, 2000

[23]

My
    conclusion regarding the shares requires me to address an alternative argument
    that is advanced by Mr. Mikelsteins  namely, that the terms of the
    Shareholders Agreement violate the
Employment Standards Act, 2000,
S.O. 2000, c. 41 and therefore are null and void and of no effect. On this
    point, Mr. Mikelsteins relies on s. 60(1)(a) of the
Employment Standards
    Act
, which reads:

During a notice period under section 57 or 58, the
    employer,

(a) shall not reduce the employees wage rate or
    alter any other term or condition of employment;

[24]

The
    Shareholders Agreement does not alter any term or condition of employment.
    Indeed, this alternative argument repeats the same error made by the motion
    judge which is the conflating of Mr. Mikelsteins rights under his contract of employment
    regarding his entitlement to reasonable notice, and his rights under the Shareholders
    Agreement regarding his shares, and treating them as one and the same. They are
    not.

[25]

Mr.
    Mikelsteins entitlement respecting the shares that he owned is determined in
    accordance with the terms of the Shareholders Agreement and only that
    agreement. The
Employment Standards Act
has no application. Mr.
    Mikelsteins received that to which he was contractually entitled when the
    appellant paid him for his shares.

C
onclusion

[26]

The
    appeal is allowed, paragraph 5 of the judgment is set aside and Mr. Mikelsteins
    claim in that respect is dismissed. MHL is entitled to its costs of the appeal
    fixed in the agreed amount of $12,500, inclusive of disbursements and HST.

Released: IN June 20, 2019

I.V.B. Nordheimer J.A.

I agree. P. Lauwers J.A.
I agree. Fairburn J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Ostainvil v. Conseil des écoles
    publiques de lEst de lOntario, 2019 ONCA 460

DATE : 20190604

DOSSIER : M50019 (M49916)

Les juges Sharpe, van Rensburg
    et Harvison Young

ENTRE

Marc Elie Ostainvil

Appelant

et

Conseil des écoles publiques de
    lEst de lOntario (CÉPEO)

Intimé

Marc Elie Ostainvil, en personne

Paul Marshall et Joël Rocque, pour
    lintimé

Date de laudience : Le
    27 mai 2019

Décision rendue séance
    tenante.

MOTIFS DE LA COUR

[1]

M. Ostainvil demande une ordonnance de radier la
    décision de la juge Pardu qui a refusé de prolonger le délai pour interjeter
    appel de la décision de la cour supérieure. La juge Pardu a accepté que M. Ostainvil
    ait manifesté lintention dinterjeter appel durant le délai prescrit. Elle a
    aussi accepté son explication pour le retard; et que le défendeur ne subirait
    pas de préjudice. Elle a rejeté la requête pour un seul motif : les moyens
    dappel sont dépourvus de fondement.

[2]

M. Ostainvil était un employé syndiqué. Son
    syndicat a présenté son grief pour congédiement abusif. Le grief a été retiré
    après un règlement à lamiable signé par M. Ostainvil, son syndicat et le
    Conseil.  La poursuite intentée par M. Ostainvil prétend que le Conseil
    na pas respecté le règlement de larbitrage.

[3]

À notre avis, la juge Pardu et la juge de
    première instance avaient correctement constaté que le fondement de la
    poursuite intentée est directement lié à lemploi de M. Ostainvil et que seul
    un arbitre a la compétence pour trancher ses réclamations contre le Conseil. Le
    protocole de règlement précise ce qui suit à larticle 12 : « Tout
    différend concernant lapplication ou linterprétation de la présente entente
    sera soumis à larbitre Mary Ellen Cummings ».

[4]

Nous sommes aussi daccord avec la juge de
    première instance que si M. Ostainvil estime que son syndicat a brimé ses
    droits par le règlement ou par son refus de retourner devant larbitre, son
    recours, sil y en a un, serait contre le syndicat et non pas contre le
    Conseil.

[5]

La motion est donc rejetée, avec dépens fixés à
    1 500 $.

Robert
    J. Sharpe j.c.a.

K.
    van Rensburg j.c.a.

A.
    Harvison Young j.c.a.


COURT OF APPEAL FOR ONTARIO

CITATION: Pezzack Financial Services Inc. v. Raso, 2019 ONCA
    517

DATE: 20190620

DOCKET: C65849

Juriansz, van Rensburg and Paciocco JJ.A.

BETWEEN

Pezzack Financial Services Inc.

Creditor (Respondent)

and

Frank Raso

Debtor

and

Carlo Colacci

Garnishee

Ronald B. Moldaver, Q.C., for the appellants, Chanel
    Holdings Ltd. and 1598356 Ontario Inc.

Evan L. Tingley, for the respondent

Heard: June 17, 2019

On appeal from the judgment of Justice Markus Koehnen of
    the Superior Court of Justice, dated August 23, 2018.

REASONS FOR DECISION

[1]

The appellants appeal from the motion judges decision that the
    respondent Pezzack Financial Services Inc., (Pezzack), is entitled to the
    proceeds of the settlement of a mortgage action held in escrow pursuant to its
    Notice of Garnishment served on the mortgagor. The Garnishee, Frank Raso, was
    the assignee of the mortgage.

[2]

The appellants, Chanel Holdings Ltd., (Chanel), and 1598356 Ontario
    Ltd., (159), brought a motion resisting the garnishment on the basis that Raso
    held the mortgage in trust for 159 pursuant to an express or a resulting trust.
    They claimed the money should be paid out to them instead of to Pezzack.

[3]

There is no basis for disturbing the motion judges finding the claimed
    express trust was a sham. He applied the proper legal principles and his
    conclusion is amply supported by the evidence of the parties post-declaration
    conduct.

[4]

Counsel argues that, in any event, Chanel on behalf of 159, not Raso,
    paid the assignor for the assignment of the mortgage. Consequently, he submits
    there is a resulting trust in favour of 159. These are not the circumstances in
    which a resulting trust may be found. In any event, any presumption of a resulting
    trust is rebutted by Rasos rejected claim of an express trust and the motion
    judges finding that he used himself, Chanel and 159 interchangeably as it
    suited him.

[5]

The appeal is dismissed. Costs are fixed in favour of the respondent in
    the amount of $10,000.00 all-inclusive as agreed by the parties.

R.G. Juriansz J.A.

K. van Rensburg J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adjei, 2019 ONCA 486

DATE: 20190612

DOCKET: C65906

Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emmanuel Adjei

Appellant

Andrew Burgess, for the appellant

Caitlin Sharawy, for the respondent

Heard: June 6, 2019

On appeal from the conviction entered on September 12,
    2017 by Justice Lauren E. Marshall of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of forcible confinement. The Crown alleged
    that the appellant, his brother, and a third man came to the complainants
    place of employment, confined him in a car, and drove him around Rexdale in an
    effort to force the complainant to contact his brother about a debt. The
    confinement lasted for about an hour and the complainant was not physically
    harmed.

[2]

The appellant did not testify at trial but gave a statement to police in
    which he admitted to being in a car with his brother and the complainant,
    although it is not clear from the statement whether he was the driver or a
    passenger. He denied that the complainant was threatened and stated that he and
    his brother only had a friendly chat with the complainant and never left the
    parking lot.

[3]

The key issue at trial was identity. The Crown alleged the appellants
    brother was driving and the appellant was in the front passenger seat. The
    complainant testified that the appellants brother, whom he knew, was in the drivers
    seat. His evidence was that the person sitting in the front passenger seat
    threatened him, waving an ice scraper in his face. The complainant identified
    the appellant as the front seat passenger in direct examination. This
    identification was challenged by the appellants counsel in cross-examination.
    After the Crown eventually objected on the basis that the questions about
    identity were repetitive and the complainants position clear, the trial judge
    stated, At this point, he has resiled from the identification of your client.
    The appellants counsel then indicated that he would move on with his
    questioning.

[4]

In her reasons for conviction, the trial judge found the complainant to
    be a truthful witness and accepted his account of what transpired. On the issue
    of identify, she noted that the complainant first identified the appellant
    definitely as the man in the front passenger seat, but then later somewhat
    resiled from that position. She also adverted to the appellants evidence that
    he was present in a vehicle with his brother and the complainant. The trial
    judge rejected as an outright fabrication the appellants statement to the
    police that he and his brother only had a friendly chat with the complainant.

[5]

The appellant was sentenced to 60 days intermittent custody, followed
    by 18 months probation. He appeals his conviction and seeks leave to appeal
    his sentence.

[6]

On his conviction appeal, the appellant submits that the trial judge
    erred in: rendering an unreasonable verdict, providing insufficient reasons,
    and interfering with the cross-examination of the complainant. We do not give
    effect to any of these grounds of appeal.

[7]

We are not satisfied that the finding of guilt was unreasonable. The
    finding was supported by the complainants testimony, including his qualified
    identification of the appellant and his identification of the appellants
    brother as the driver. The trial judge was entitled to accept the appellants
    statement that he was in a car with his brother and the complainant, and reject
    portions of his statement that she found to be self-serving or fabricated. Her
    conclusion was also supported by the testimony of a third party who had been
    present in the car. He admitted to acting as the muscle to intimidate the
    complainant and testified that he was picked up at a location other than the
    complainants place of work. The third party put himself in the back seat, as
    did the complainant. Since the complainant knew the brother and was sure he was
    in the drivers seat, by necessary implication the appellant was the man in the
    front seat with the scraper. Thus, the finding of guilt was well grounded in
    the evidence and open to the trial judge.

[8]

The reasons given by the trial judge were brief, but they meet the
    functional test for adequacy of reasons. It is clear that she accepted the
    evidence of the complainant and rejected much of the appellants statement to
    police. Her reasons, read in the context of the record, adequately explain why
    she convicted the appellant and they permit appellate review. Therefore, we
    reject the appellants submission that the reasons were insufficient.

[9]

The appellants complaint about interference with his counsels
    cross-examination is not well-founded. Counsel had repeatedly questioned the
    complainant about who was in the car. When Crown counsel objected, the trial
    judge pointed out that the complainant had resiled from his earlier testimony
    that he was certain that the appellant was seated in the front passenger seat. The
    appellant submits that defence counsel would have continued his cross-examination
    had the trial judge made the same comment she made in her reasons that the complainant
    had only somewhat resiled from his identification of the appellant. On this
    basis, he submits that there was wrongful interference with his counsels
    cross-examination.

[10]

We
    do not accept that argument. There was no direction from the trial judge to
    defence counsel to stop this line of questioning. Indeed, when she commented
    that the witness had resiled she pointed out that further cross-examination
    could backfire for the appellant. Defence counsel chose to move on. He did so
    knowing the state of the evidence. In particular, he knew that the complainant
    never stated definitively that he could not identify the appellant as the front
    seat passenger. The trial judges comment about the complainant resiling from
    his identification of the appellant must be understood in this context. In
    these circumstances, there was no interference with defence counsels
    cross-examination by the trial judge.

[11]

With
    respect to the sentence appeal, the appellant submits that the trial judge
    erred by failing to consider his youth, resulting in an overemphasis on general
    denunciation and a lack of consideration of rehabilitation.

[12]

We
    disagree. The trial judge identified the relevant mitigating factors, including
    the appellants favourable pre-sentence report and lack of criminal record. She
    also considered the appellants prospects for rehabilitation as part of her
    analysis. In our view, the trial judge properly balanced the mitigating factors
    and the prospects for rehabilitation against the need to demonstrate
    denunciation for a serious crime. We see no error in that analysis. Nor do we
    view the sentence as unfit.

[13]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted, but the
    sentence appeal is also dismissed.

Alexandra Hoy A.C.J.O.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bao, 2019 ONCA 458

DATE: 20190604

DOCKET: C64500

Watt, Trotter and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ai Ming Bao

Appellant

Mindy Caterina, for the appellant

Bradley Reitz, for the respondent

Heard: March 21, 2019

On appeal from the conviction entered by Justice Fergus C.
    ODonnell of the Ontario Court of Justice on August 31, 2017, with reasons
    reported at 2017 ONCJ 944.

Trotter
    J.A.:

[1]

The appellant, Ai Ming Bao, was
    convicted of one count of possession of marijuana for the purpose of
    trafficking, contrary to s. 5(3)(a) of the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19. His conviction
    rested on the fleeting observation of a police officer, who identified the
    appellant as the driver of a vehicle that sped past him at 50 km/h.

[2]

At the end of the oral hearing, the panel announced that the verdict was
    unreasonable and could not be supported by the evidence. The appeal was allowed
    and an acquittal was entered, with reasons to follow. These are those reasons.

A.

factual overview

[3]

On August 15, 2015, P.C. Michael Storozuk was investigating a collision
    involving a motorcycle. He parked his cruiser in a manner that prevented other vehicles
    from driving through the accident scene. As P.C. Storozuk was talking to a
    tow-truck driver, he saw a minivan drive past him, out of the corner of his
    eye, at a distance of 15 feet. It was travelling at a normal rate of speed of
    50 km/h. He said that the drivers side window was open.

[4]

P.C. Storozuk yelled at the driver to stop. Acknowledging that he had
    merely seconds to make his observation, P.C. Storozuk described the driver as
    an Asian male with dark hair. P.C. Storozuk testified that the driver
    looked shocked and almost panicked. From his fleeting glance, he estimated that
    the driver was 59 to 510. In cross-examination, he agreed that this estimate
    was very approximate and acknowledged that the driver could have been between
    57 to 6. He could give no further description of the driver, or of the drivers
    clothing.

[5]

After the minivan went through the accident scene, it immediately made a
    right-hand turn and accelerated away. P.C. Storozuk got into his cruiser and
    gave chase. The minivan travelled about 300 meters before crashing into a hydro
    pole. By the time P.C. Storozuk caught up to the minivan, there was no one inside
    it. All of the minivan doors were closed, except the drivers side front door,
    which was ajar. P.C. Storozuk said the window of the drivers side door was
    still open.

[6]

P.C. Storozuk searched the glovebox and found a wallet. It was conceded that
    the wallet belonged to the appellant. It contained numerous bank cards, credit
    cards, recent ATM receipts, and other items. P.C. Storozuk focused on an OHIP
    card found in the wallet, which bore the appellants name and photograph. P.C.
    Storozuk testified that he recognized the appellant as the person who drove
    past him at the first accident scene. P.C. Storozuk also found ownership and
    insurance documents in the minivan, both of which suggested that the minivan
    was owned by someone else. Another officer who subsequently arrived on the
    scene found an inhaler (still in its packaging) that had been prescribed for
    the appellant about a month earlier. It was in a compartment of the front
    passenger-side door.

[7]

As P.C. Storozuk examined the contents of the wallet, the front hood of
    the minivan caught fire. Concerned about the destruction of evidence, he opened
    the sliding door of the minivan and discovered seven large garbage bags of
    fresh marijuana inside the vehicle. Fire services were summoned and the fire
    was extinguished.

[8]

A canine unit was also on the scene, in search of the occupant(s) of the
    vehicle. The police soon discovered four Asian people (three men and one woman)
    hiding in the bushes nearby. The appellant was not one of them.
[1]

[9]

Returning to the minivan, P.C. Storozuk insisted that the drivers side
    window was open when it passed him and when he found it abandoned after
    striking the hydro pole. He stated that he did not roll the window up. A photo
    from the scene taken by P.C. Storozuk showed that the window was rolled all the
    way up. P.C. Storozuk had no explanation for the discrepancy but said, I know
    for a fact  it was down (i.e. that it was open) when the minivan drove past
    him.

[10]

Officers
    on the scene observed that the minivan seating had been modified. The middle
    bench seat was missing, leaving enough seating for only four people.

[11]

As
    discussed in more detail below, the trial judge was satisfied that the
    appellant was the driver. He also concluded that the Crown had proved that the
    appellant possessed the seven bags of marijuana found inside the vehicle.

B.

issues on appeal

[12]

The
    appellant raised two issues on this appeal: Is the appellants conviction
    unreasonable due to the frailties of the identification evidence? In the
    alternative, if identity were properly proved, did the evidence fall short of
    establishing the appellants knowledge and control of the marijuana found in
    the minivan? In my view, the appeal should be allowed on the first issue.

C.

analysis

(1)

Introduction

[13]

This
    case provides another example of an honest witness purporting to make an
    accurate eyewitness identification. However, given that P.C. Storozuk only made
    a fleeting observation, and in light of how events transpired that evening, his
    identification of Mr. Bao was rendered worthless. Accordingly, the appellants
    conviction is unreasonable and cannot be supported by the evidence: see
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 686(1)(a)(i);
R. v. Quercia
(1990), 75 O.R. (2d) 463 (C.A.), at pp. 465-466;
R. v. Malcolm
(1993),
    13 O.R. (3d) 165 (C.A.), at pp. 173-174;
R. v. Miaponoose
(1996), 30
    O.R. (3d) 419 (C.A.), at p. 423.

[14]

In
    his reasons, the trial judge identified some of the inherent frailties
    generally associated with eyewitness identification evidence. They are well
    known and have been discussed by the courts on countless occasions: see e.g.
R.
    v. Hibber
t
, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 50; Peter
    deC. Cory,
The Inquiry Regarding Thomas Sophonow: The Investigation,
    Prosecution and Consideration of Entitlement to Compensation
(Winnipeg:
    Manitoba Justice, 2001), at pp. 31-34. Although these frailties are easily identified,
    problems sometimes arise in the failure to focus on the specific frailties
    presented in individual cases: see
R. v. Lewis
, 2018 ONCA 351, at
    para. 16;
R. v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at para. 79;
R. v. Gough
, 2013 ONCA 137, at paras. 34, 38-39; and
R. v. Pimentel
(1995), 85 O.A.C. 395 (C.A.), at para. 11. That is what happened in this case.

[15]

The
    trial judge relied upon three aspects of the evidence in finding that the
    appellant had been identified as the driver  the presence of the appellants
    wallet in the minivan; the discovery of his inhaler in the minivan; and the
    observations of P.C. Storozuk. He acknowledged that none of these alone could
    establish identification, but in combination they were compelling. However,
    this panoramic approach obscured the deficiencies in P.C. Storozuks observations
    of the driver, upon which everything else rested.

[16]

The
    discovery of the appellants wallet and inhaler in the minivan was merely
    consistent with the appellants recent presence in the vehicle. These items
    alone were not capable of establishing that the appellant was present in the
    vehicle on this occasion, or that he was the driver of the minivan. P.C.
    Storozuks evidence was a necessary and critical bridge between the items and
    the identification of the appellant as the driver. The items found in the
    vehicle could not compensate for the serious shortcomings in P.C. Storozuks initial,
    fleeting identification. Indeed, as discussed below, P.C. Storozuks reliance
    on the OHIP card photo only served to exacerbate the frailties of his
    identification evidence.

[17]

I
    will outline the frailties in P.C. Storozuks purported identification of the
    appellant and then address the concerns related to his reliance on the OHIP card.

(2)

The specific frailties in this case

[18]

There
    were numerous frailties apparent from the circumstances in which P.C. Storozuk
    made his observations of the person driving the minivan.

[19]

I
    start with the fact, which is common to many identification cases, that this
    was a case of stranger identification. P.C. Storozuk and the appellant did not
    know each other. As this court cautioned in
R. v. Tat
(1997), 117
    C.C.C. (3d) 481, at para. 100, concerns about eyewitness identification are
    particularly high where the person identified is a stranger to the witness:
    see also
R. v. Goran
, 2008 ONCA 195, 234 O.A.C. 283, at para. 32.

[20]

Perhaps
    most importantly, P.C. Storozuk had the opportunity to observe the driver for
    mere seconds, from a distance of 15 feet, while the vehicle passed at a speed
    of 50 km/h. As the trial judge noted in his reasons, the vehicle would have
    been traveling at 14 meters per second. By any measure, this was nothing more
    than a fleeting glance:
Mezzo v. The Queen
, [1986] 1 S.C.R. 802;
R.
    v. Virgo
, 2016 ONCA 792, at para. 12;
R. v. Boast
, 2019 ONCA 19,
    at para. 15.

[21]

P.C.
    Storozuks description of the driver was also bereft of any detail  Asian
    male, dark hair. As defence counsel at trial (not Ms. Caterina) submitted,
    this could describe any Asian male. It may even have been an apt description of
    the men who were found hiding in the bushes near the crashed minivan. Importantly,
    this description was not relayed to the dispatcher by P.C. Storozuk as the events
    unfolded; it was recorded in his notebook
after
he had viewed the
    appellants OHIP card. The lack of any meaningful description of the driver
    seriously undermined P.C. Storozuks identification evidence. As this court
    noted in
Gough
, at para. 37, generic descriptions are of little
    assistance: see also
R. v. Jack
, 2013 ONCA 80, 294 C.C.C. (3d) 163, at
    para. 16;
R. v. Ellis
, 2008 ONCA 77, at paras. 5, 8.

[22]

P.C.
    Storozuk was also unable to identify any clothing that might have been visible
    from his vantage point, not even the colour of the clothing that the driver was
    wearing on the upper part of his body.

[23]

There
    was another need for caution on the part of the trial judge  this was a case
    of cross-racial identification: see
R. v. McIntosh
(1997), 35 O.R.
    (3d) 97 (C.A.), at p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610;
R.
    v. Richards
(2004), 70 O.R. (3d) 737 (C.A.), at para. 32; and
R. v.
    Mey
, 2011 ONCA 288, 280 O.A.C. 319, at para. 35. The trial judge included
    this feature in his reference to the inherent frailties of identification
    evidence generally. However, he never really grappled with this feature in the
    context of this case. This was a serious issue, especially in light of P.C.
    Storozuks generic description. This was further compounded by the fact that three
    Asian men that were found hiding nearby, who along with the woman found with
    them, were presumably occupants of the minivan  a vehicle with seats for four.
[2]

[24]

Finally,
    there were two specific aspects of P.C. Storozuks evidence which cast doubt on
    the accuracy of his observations. First, P.C. Storozuks estimation of the
    height of the driver was dubious. After all, the driver was seated at the time
    of the observation. P.C. Storozuk made his appraisal  again within seconds  based
    on his experience with friends who own the same model of minivan. Any doubt
    about the value of the height estimate was put to rest in cross-examination,
    when the parameters changed from the initial 59 to 510 range, to a range of
    57 to 60.
[3]

[25]

Second,
    P.C Storozuk was adamant that the window was open when the minivan drove past
    him, and after it crashed. He relied upon the open window to bolster the
    accuracy of his identification of the driver. Photographic evidence
    contradicted P.C. Storozuk on this point. The trial judge said that he accepted
    the evidence of P.C. Storozuk that the window was open, but gave no explanation
    for this finding. In my view, given that this observation was tied to the
    reliability of P.C. Storozuks observations that evening, it was incumbent on
    the trial judge to explain why he reached this conclusion. But even taking P.C.
    Storozuks evidence at its highest and accepting that the window was open when
    he observed the driver, the other frailties in his evidence were such that the
    matter of the window being open was incapable of bolstering the accuracy of his
    evidence. The frailties in P.C. Storozuks fleeting observations of the driver
    were compounded by his reliance on the OHIP card.

(3)

The OHIP Card

[26]

The
    trial judge was impressed with P.C. Storozuks comparison of his own memory of
    the driver with the OHIP card photo. The trial judge said that this was similar
    to situations in which police officers verify the identification of drivers at
    roadside (i.e., by comparing a presented photo-bearing drivers licence with
    the seated driver). I am not persuaded that this analogy is sound.

[27]

Many
    years ago, this court held that it is dangerous and improper to present a
    potential identification witness with a single photograph of a suspect. The
    danger is that the witness may have the photo image stamped on his or her mind,
    rather than the face of the true perpetrator: see
Rex. v. Goldhar; Rex v.
    Smokler
(1941), 76 C.C.C. 270 (Ont. C.A.), at p. 271. Presenting a single
    photograph is highly suggestible and contaminates the identification process in
    a manner that prejudices the accused person: see
Rex. v. Smierciak
(1946), 87 C.C.C. 175 (Ont. C.A.), at p. 177. The holdings in these cases were
    recently endorsed by Rothstein J. in
R. v. Araya
, 2015 SCC 11, [2015]
    1 S.C.R. 581, at para. 36, a case referenced by the trial judge in his reasons.

[28]

In
    this case, P.C. Storozuk essentially showed himself a single photograph and
    concluded that the person in the photograph was the driver of the minivan. I do
    not criticize him for what he did. No doubt, it was sensible investigative
    work. However, it did not translate into reliable identification evidence.

[29]

In
    considering P.C. Storozuks use of the OHIP photo, the trial judge placed great
    reliance on this courts judgment in
R. v. Li
, 2013 ONCA 81, 296
    C.C.C. (3d) 408, leave to appeal refused, [2013] S.C.C.A. No. 142. In
Li
,
    a police officer identified the accused person after viewing a photograph
    obtained from a Ministry of Transportation database and conducting surveillance
    of the accused. The officer in
Li

had run the license plate of
    a vehicle he observed during the execution of a general warrant and viewed the
    drivers license displaying a photo of the owner of the vehicle. The officer
    did not retain a copy of the photo. One week later he had the opportunity to
    observe the accused while he was under surveillance for eight and a half hours.
    The officer identified the person he observed during the surveillance as the
    person depicted in the photo from the Ministry database. The photograph was not
    produced at trial. Watt J.A. stated, at para. 38, that it was not improper for
    the officer to examine the photo and compare his surveillance observation to
    the photo that he had previously viewed. Rather, the officer

was entitled  to compare the person in the photograph with
    the man he saw at 18 Damian Drive unloading the same vehicle that he had under
    surveillance for eight and one-half hours, and taking several things into the
    garage of Ng's house. In essence, he was refreshing his memory.

[30]

The
    trial judge likened the situation in this case to
Li
. While he
    acknowledged that the opportunity to observe in this case was considerably
    shorter, he said, the present point is that the single photo issue was squarely
    before the Court of Appeal and did not find favour with that court.

[31]

If
    this statement is meant to suggest that the decisions in
Goldhar
and
Smierciak
are no longer authoritative, I disagree.
Li
refers to neither of these
    cases and does not purport to address the reliability of eyewitness
    identification based on a single photograph.

[32]

Moreover,
    the Supreme Court of Canadas endorsement of
Goldhar
and
Smierciak
in
Araya
came
after
this courts decision in
Li
. This aspect
    of
Araya
(in para. 36) is considered dicta of the Supreme Court of
    Canada that is binding on this court, as it was on the trial judge:
R. v.
    Henry
, 2005 SCC 76, [2005] 3 S.C.R. 609, at paras. 53, 57;
R. v.
    Prokofiew
, 2010 ONCA 423, 100 O.R. (3d) 401, at paras. 18-21, aff'd without
    reference to this point, 2012 SCC 49, [2012] 2 S.C.R. 639;
Canada (Attorney
    General) v. Bedford
, 2012 ONCA 186, 109 O.R. (3d) 1, at para. 69, revd in
    part, but not on this point, 2013 SCC 72, [2013] 3 S.C.R. 1101.

[33]

Further,
    this case is entirely different from
Li
. The officer in
Li
had
    hours to observe the accused, essentially giving rise to a situation of
    recognition, rather than stranger identification. In this case, all the officer
    had was a fleeting glance. In
Li
, the officer saw the photograph first,
    and then observed the accused over a prolonged period of time. In such
    circumstances the risk that the single photograph would become stamped on his
    mind, rather than the face of the true perpetrator was significantly
    attenuated. In contrast, that is squarely the concern that is presented in this
    case. P.C. Storozuks own direct observations were fleeting and marred with
    other frailties which I have reviewed above. In such circumstances, there was a
    heightened risk that the photo, which P.C. Storozuk acknowledged he focused
    on, would overtake or contaminate the identification evidence.

[34]

As
    noted above, the trial judge likened P.C. Storozuks use of the OHIP card to the
    typical traffic stop scenario where police officers compare the driver with the
    photo identification presented. This identification process is not unique to
    traffic stops. It is used in other contexts  e.g., airport check-in; customs
    clearance; proof of age at public houses; professional or educational testing
    occasions when it is necessary to verify the identity of individuals presenting
    themselves for a particular purpose.

[35]

This
    comparison is not helpful. The traffic stop scenario entails a process of simultaneous
    comparison between the person and the photograph. The officer and the driver
    will be in close proximity. Questions may be asked. Within legal limits, the
    length of the encounter is controlled by the officer. During a traffic stop,
    the driver will be anxious for the officer to accept the licence photograph as
    authentic.

[36]

In
    this case, P.C. Storozuk did not have an opportunity to make a simultaneous
    comparison of the OHIP photo and driver. All he had was his memory of the
    driver from his fleeting glance, which he compared with the only photo ID that
    he found in the minivan. The circumstances in which this comparison was made
    was highly suggestible. The use of the OHIP photo could not bootstrap an
    irretrievably valueless attempt at identification.

D.

conclusion

[37]

For
    these reasons, the verdict is unreasonable, and the appeal must succeed. In
    light of this conclusion, it is not necessary to address the appellants other argument
    concerning knowledge and control of the marijuana.

[38]

As
    mentioned at the outset of these reasons, the appeal was allowed at the
    conclusion of the oral hearing in this case. An acquittal was entered at that
    time.

Released: DW JUN 6 2019

Gary Trotter J.A.

I agree. David Watt J.A.

I agree. David M. Paciocco J.A.

[1]

The other individuals were originally charged along with the appellant
    on the same information. At the outset of trial, due to the absence of a
    certain witness which diminished the prospect of conviction, the Crown withdrew
    the charge as against them and proceeded against the appellant alone.

[2]

I accept that the number of seats in the vehicle is not
    conclusive of the number of occupants. Had the four individuals been found to
    be occupants of the vehicle, it was still possible that another person could
    have been in the minivan, but not properly seated.

[3]

The appellants actual height was not determined at trial.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cepic, 2019 ONCA 541

DATE: 20190627

DOCKET: C65440

Benotto, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damir Cepic

Appellant

Colleen McKeown, for the appellant

Kevin Rawluk, for the respondent

Heard: June 19, 2019

On appeal from the
    conviction entered on March 29, 2018 by Justice Anne E. London-Weinstein of the
    Superior Court of Justice, sitting without a jury.

Benotto J.A.:

[1]

The appellant worked as a male dancer at a strip
    club. He was convicted of the sexual assault of a female customer. He appeals
    on the basis that the trial judge relied on behavioural assumptions and
    stereotypes to determine that the complainant did not consent to the sexual
    activity.

[2]

For the reasons that follow, I would allow the
    appeal.

Facts

[3]

On March 12, 2016, the complainant and seven
    girlfriends went to the Foxxes Den male strip club to celebrate a birthday. The
    club has an open room, a stage and a more private VIP room. Men dance on the
    stage and circulate around the open room offering lap dances to the customers.

[4]

As the name implies, during a lap dance, a dancer
    sits on the customers lap. His legs are on hers and his knees are on the sofa
    she is sitting on. A lap dance in the open room generally costs $10 per dance.
    In the VIP it costs $20. A dance lasts the length of a song.

[5]

The complainants group sat at a booth and
    ordered bottle service. Some of her friends arranged for dances by the
    appellant. After the dances, the complainant went to the side of the stage and
    paid the appellant $10 for her own lap dance. She sat down and he performed for
    her. The appellant described it as his typical dance. He was facing her; his
    legs were on the couch and my bum is on her knees. While some dancers expose
    their penis, he did not, although the complainants friend testified that you
    could see the base of his penis. The appellant testified that he was aroused
    and the complainant did reach in there to touch it. He said he told her if
    you want to see it, there is a VIP. The complainant denied touching his penis.

[6]

After this dance, the complainant returned to
    her table and asked the appellant to perform for one of her friends. She paid
    him $5 for the friends dance and asked for another dance for herself. She used
    her debit card to get cash from the bar. She paid the appellant $40 for a dance
    that occurred in the VIP room.

[7]

Together the appellant and complainant went to the
    VIP room and he danced for her. This dance involved fellatio and vaginal
    intercourse. Very few words were exchanged until the appellant told her he was
    about to ejaculate. He testified she said No, I have a boyfriend. She
    testified that she did not say this. The appellant ejaculated on the floor. He
    then gave the complainant his business card and went for a shower.

[8]

The complainant returned to her table and, after
    about 10 minutes, called her boyfriend to come pick her up. She also texted a
    friend expressing concern about what to say to her boyfriend, and concern that
    her father, a police officer, would hate me. When the boyfriend arrived, the
    complainant told him that she had been sexually assaulted, and then reported
    the assault to police that night. The appellant was charged with one count of
    sexual assault.

Decision Below

[9]

The sole issue at trial was consent. The
    complainant said she was forced into fellatio and intercourse. The appellant
    said she was a willing participant.

[10]

The trial judge rejected the appellants
    evidence as self-serving and found that it did not raise a reasonable doubt.
    She found his account of the first lap dance implausible, reasoning that the
    complainant, who had never had a lap dance before, would not have touched his
    penis. The trial judge also rejected as completely implausible and
    nonsensical the appellants evidence that the complainant told her she had a
    boyfriend as he was about to climax. By contrast, the trial judge found the
    complainant both reliable and credible. She convicted the appellant of sexual
    assault and sentenced him to two years less a day in jail.

Position of the Parties

[11]

The
    appellant submits that the trial judges credibility analysis was tainted by: (i)
    an impermissible reliance on stereotypes and assumptions; and (ii) uneven
    scrutiny of the evidence of the appellant as opposed to the complainant.

[12]

The
    respondent submits that the trial judge was entitled to rely on common sense
    assumptions about basic human conduct.

Analysis

[13]

The
    use of a common-sense approach to credibility assessment is fraught with danger
    for it can mask reliance on stereotypical assumptions:
R. v. A.B.A.
2019 ONCA 124, 372 C.C.C. (3d) 301, at para. 7).

[14]

It
    is an error of law to rely on pre-conceived views about how sexual assault
    victims would behave:
R. v. D.D.,
2000 SCC 43, [2000] 2 S.C.R. 275 at
    para. 65
; R. v. A.R.J.D.
, 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2.
    These are the myths of appropriate behaviour that the law seeks to eradicate.
    Historically, these myths have operated to undermine a complainants testimony.
    But they may also operate in the reverse, to artificially bolster a
    complainants credibility on the basis that no young woman would consensually
    engage in the alleged behaviour:
R. v. J.L.,
2018 ONCA 756, 367
    C.C.C. (3d) 249, at paras. 46-47.

[15]

Here
    the trial judge used assumptions about female behaviour as the basis for
    accepting the complainants testimony. The corollary is that the assumptions
    about what a woman would or would not do were also used to undermine the
    appellants credibility.

[16]

The
    trial judge started from the assumption about what a young woman would do in a
    strip club and carried that theme throughout her analysis. She began with a
    reference to the conflicting evidence about the first dance and concluded that
    the complainant did not touch the appellants penis. She said at p.  26:

I do not believe that [the
    complainant], having never had a lap dance before in her life would have
    reached into [the appellants] pants and touched his penis in the manner he
    described.

And at p. 27:

I find it implausible that she,
    not knowing what to expect, and having never been in a strip club before, would
    have just reached into his pants to touch his penis in the manner he described.

[17]

At
    pp. 29, 31 and 39, the trial judge applied this same reasoning to reject the
    appellants evidence that, after he told the complainant he was going to
    ejaculate, she said no, I have a boyfriend:

That evidence is completely implausible and nonsensical.  In my
    view, it would make no sense for the complainant to say this just before [the
    appellant] said he was going to climax.

[]

His commentstruck me as contrived and as I said it made no
    sense. I dont believe that happened.

[]

I did not believe [the appellant]
    when he said that the complainant told him she had a boyfriend and that is why
    he ejaculated on the floor. As I said, that was a completely implausible piece
    of evidence.

[18]

With
    respect to the parties physical positions during vaginal intercourse, the
    complainant testified that she used her left arm to try to push the appellant
    off from behind her. He testified that she had her hand resting on her buttocks
    but did not push him away. The trial judge addressed this discrepancy at p. 35:

I did not accept [the appellants] explanation for why [the
    complainant] would have had her hand on her buttockThat explanation made no
    sense to me. It would have been a highly awkward position to maintain and [the
    complainants] explanation for why she had her hand behind her back is far more
    logical.

[19]

The
    trial judges determinations about what made no sense or was implausible
    were blatant assumptions, unsupported by the evidence.

[20]

The
    Crown submits that the assumptions were simply common-sense views as to human
    behaviour. The Crown relies on several cases to demonstrate that credibility
    assessments can be based on assumptions about human conduct: see
R. v.
    Quartey,
2018 SCC 59, at para. 3;
R. v. G.H.,
2018 ONCA 349, at
    para. 5;
R. v. F.B.P.
, 2019 ONCA 157, at para. 9. Those cases all
    involve situations where the trial judge assessed credibility based on evidence
    about what a particular person would do in the specific circumstances of each
    case.

[21]

In
Quartey,
the trial judge had found the appellants evidence
    fanciful. The Alberta Court of Appeal concluded that the trial judges views
    were about the appellant, not men in general. On further appeal, the Supreme
    Court held:

Nor did the trial judge err by
    applying generalizations and stereotypes in rejecting the appellants evidence.
    We agree with the majority at the Court of Appeal that the trial judges
    statements in this regard were directed to the appellants
own
evidence
    and to the believability of
the appellants
claims about how
he
responded
    to the specific circumstances of this case, and not to some stereotypical
    understanding of how
men
in those circumstances would conduct
    themselves. [Emphasis in original].

[22]

Likewise,
    in
G.H.,
the trial judge considered evidence from the appellant about
    how he and the complainant behaved and measured that evidence against common
    sense and human behaviour. The trial judge did not reach outside the evidence
    to make credibility findings based on generalizations about the sexual
    behaviour of men and women. Finally, in
F.B.P.
, the trial judges inference
    that it would be implausible for the complainant to have had sex with the
    appellant on a public balcony was not central to the rejection of the
    appellants evidence but in any event was based on the evidence.

[23]

Here,
    the trial judges repeated use of words like implausible and nonsensical to
    characterize various aspects of the appellants testimony is untethered to an
    evidentiary base. It reflects a conclusion based almost entirely on an
    assumption about what a young woman would do in this context. And the context
    was significant: a womens only party in a highly sexualized environment
    involving alcohol and male dancers.

[24]

On
    this basis alone I would allow the appeal. But the trial judge also seems to
    have utilized stereotypes about male aggression. When discussing the
    appellants evidence, the trial judge said at p. 31:

[He] tried to paint [the complainant] as the sexual aggressor,
    in a way that did not accord with common sense.

[25]

And
    in conclusion at p. 39:

I believe that this young woman
    was stunned and confused by the situation she found herself in and [the
    appellant] took advantage of that confusion.

[26]

The
    trial judge reached this conclusion without mention of the uncontroverted
    evidence that the complainant actively pursued the appellant for dances. She
    purchased a dance shortly after arriving at the club, purchased a dance for her
    friend, then withdrew more cash to purchase another for herself in the VIP
    room. While this certainly does not lead to an inference of consent, it is
    evidence that the trial judge chose to ignore when she concluded that the complainant
    could not have been the sexual aggressor and was stunned and confused.

[27]

The
    trial judges path to conviction rested largely on a series of erroneous assumptions
    about what a young woman would or would not do in the circumstances of this
    case. The conviction must therefore be set aside.

[28]

Since
    I accept the first ground of appeal, it is not necessary to consider the second
    ground alleging uneven scrutiny of the evidence.

[29]

I
    would allow the appeal and order a new trial
[1]
.

Released: June 27, 2019

MLB

M.L. Benotto J.A.

I agree L.B. Roberts
    J.A.

I agree B.W. Miller
    J.A.

[1]

The sentence appeal, which is now moot, was previously
    abandoned.