COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2021 ONCA 540

DATE: 20210728

DOCKET: C67378

Rouleau, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne Brown

Appellant

Paul Calarco, for the appellant

Brendan Gluckman, for the respondent

Heard: March 16, 2021 by video
    conference

On appeal from the conviction entered on
    February 12, 2019, by Justice Dino DiGiuseppe of the Ontario Court of Justice.

Pepall J.A.:

A.

Introduction

[1]

The police obtained a general warrant to make
    covert entries into a storage locker used by the appellant and rented under a
    false name. The police discovered cocaine, marijuana, oxycodone, alprazolam and
    Canadian currency in the locker. The appellant was charged with possession of cocaine
    for the purpose of trafficking, possession of the proceeds of crime, and
    conspiracy to traffic cocaine.

[2]

At trial, the appellant was convicted after
    unsuccessfully applying to quash the general warrant based on s. 8 of the
Canadian
    Charter of Rights and Freedoms
. Before this court, the appellant argues
    that the reviewing judge applied the wrong standard in considering whether the
    warrant was valid and that the requirements of s. 487.01 of the
Criminal
    Code
, R.S.C. 1985, c. C-46 were not met. Moreover, the test in
R. v.
    Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353 favoured exclusion of the seized
    evidence. He asks that the warrant be quashed, the evidence obtained excluded,
    and an acquittal entered.

[3]

For the following reasons, I would dismiss the
    appeal.

B.

Facts

[4]

The Thunder Bay Police Service received
    information from seven confidential informants (CIs) that the appellant and
    two associates were selling cocaine at the Royalton Hotel in Thunder Bay. Surveillance
    was conducted which confirmed the information provided by the CIs and which led
    to a storage locker where it was believed drugs and other evidence of
    trafficking would be located. The appellant and his associates were observed in
    vehicles rented by them going to and from the storage locker and entering and
    exiting the locker with various bags.

[5]

The police applied for, among other things, a
    general warrant to covertly enter and search the storage locker. In the
    information to obtain (ITO), Detective Constable Bartol was the affiant. He
    set forth the basis for his belief that there were reasonable grounds to
    believe that the appellant and his two associates had committed the subject
    offences.

[6]

D.C. Bartol outlined information received on the
    appellant and his drug dealing activities since 2007, his arrests and charges for
    possession of cocaine for the purpose of trafficking in 2008 and 2011, his guilty
    plea and conviction of the former and withdrawal of charges in the latter, and
    his continued active trafficking in cocaine assisted by Romariando Meggoe, whose
    street name was Cash, and another unidentified male known as Money.

[7]

Police investigation revealed that the appellant
    had rented a grey Toyota vehicle and Mr. Meggoe a black Chevrolet Malibu and a
    green Volkswagon Jetta, and the police obtained other identification
    particulars associated with the vehicles.

[8]

D.C. Bartol described in detail the information
    obtained from the seven CIs in the summer and autumn of 2017, four of whom had
    previously provided information to the police. In addition, much of the
    information provided was corroborated by independent investigation by the
    police.

[9]

CI No. 1 advised that the appellant, who went
    by the name Marshall, was in town selling cocaine with a few other black
    males. They were driving a new grey or silver car. The appellant was using a
    cell phone and his number was provided. He recruited women to sell for him and was
    the main guy selling hard and soft cocaine. CI No. 2 said that the appellant
    was back in town and dealing cocaine out of the Royalton Hotel. CI No. 3 stated
    that the appellant was back in town, using the phone number identified by CI
    No. 1, his boy who was black, in his 20s, and skinny with short hair, went
    by the street name Cash, and CI No. 3 saw Cash with coke a couple of days prior.

[10]

CI No. 4 reported that the appellant was driving
    a rented silver Toyota Camry and was usually in the company of two other black
    males, one of whom was Cash. The appellant had two phones, moved around and
    used hotels and met people in parking lots. CI No. 5 reported that there were
    two black guys in town who were usually at the Royalton Hotel bar dealing three
    to four times a week. They supplied drugs to friends who lived there, and two
    named individuals dealt drugs for them. They were trying to get people to sell
    cocaine for them. The owner did not want them selling in the bar, so they went
    outside to deal and did all the drug dealing behind the bar. The black guys in
    the bar had a boss named Marshall who was not seen in the bar very often.

[11]

CI No. 6 reported that there were black males
    selling crack cocaine at the Royalton and that the informant had bought drugs
    from them. CI No. 6 identified a photo of Mr. Meggoe as Cash. CI No. 7 stated
    that two black guys from Toronto were selling coke and crack at the Royalton
    almost every day, hanging around the bar. They went by the names Cash and
    Money. Cash was about 57, black, and skinny with short hair and a nose
    piercing. They sold crack that was prepackaged, wrapped in a plastic bag. They
    always had lots of coke on them and kept it in their pockets. They met people
    behind the building in the back lane to make the deal.

[12]

D.C. Bartol also reported on the surveillance
    conducted at the Royalton and other locations on August 23, September 7, 21,
    and 26, 2017. This revealed three black males engaging in apparent drug dealing
    activities and using the three vehicles noted. On September 21, 2017, following
    suspected drug transactions at the Royalton, a black male got into the Volkswagen
    Jetta vehicle believed to be rented by Mr. Meggoe, and drove in a manner
    consistent with attempting to lose anyone trying to follow to a residence at 25
    Melon Street. The vehicle remained for about 20 minutes and then returned to
    the Royalton Hotel.

[13]

On September 26, 2017, the police conducted
    surveillance at 25 Melon Street where the Volkswagen Jetta was parked outside.
    A black male carrying a white Old Navy bag, and identified as Mr. Meggoe, exited
    the building, got into the vehicle, and drove to Nor-Shore Storage where he
    went to storage locker number 316 and placed two bags inside. He then picked up
    a female at Confederation College, drove to the Thunder Bay airport, went into
    the terminal for a period of time, exited, dropped the female off at
    Confederation College, and returned to 25 Melon Street. Thirty minutes later he
    drove to the airport again, returned the Volkswagen Jetta, and entered the
    terminal where he checked a dark bag.

[14]

On September 28, 2017, the police determined
    that storage locker 316 was rented to a male named Mark James who had paid cash
    and had produced a drivers licence on July 31, 2017. However, on
    investigation, there was no person with that name and date of birth on the CPIC
    file or the MTO database.

[15]

The storage facility surveillance system on July
    31, 2017 showed a black male paying for the rental of the storage locker and
    exiting the passenger seat of the silver Toyota rented by the appellant, and on
    August 7, 2017, two men were seen exiting the same silver Toyota at storage
    locker 316 and placing a black pack sack inside.

[16]

On October 3, 2017, the police installed a
    camera with a clear view of the front of storage locker 316.

[17]

As the reviewing judge summarized:

On October 6, 7, 8, 10, 11, 12, 17 and 19, a
    silver vehicle was observed parking near the storage locker. Black males were
    observed on these dates, often more than once on the same date, removing bags
    from the vehicle and taking them to the storage locker, and removing bags from
    the storage locker and placing them in the vehicle. On three occasions, a male
    believed to be Mr. Brown is seen exiting the drivers side of this vehicle.
    Each visit to the locker is brief, and the door to the locker is continually
    shut behind these individuals in an effort to conceal their actions.

[18]

Armed with this
    information, D.C. Bartol outlined in the ITO why he had reasonable grounds to
    believe that evidence of drug trafficking, telecommunication devices, evidence
    of money laundering and proceeds of crime would be obtained from the storage
    locker while at the same time preserving the integrity of the investigation. He
    believed that the information provided by the CIs when taken in totality was
    compelling, credible and corroborated. Physical surveillance at the Royalton
    Hotel had provided observations consistent with hand to hand drug trafficking;
    physical and video surveillance of the storage locker had shown on numerous
    occasions that bags were placed inside and taken out of locker 316. Each stay
    at the locker was brief and the door continually pulled closed behind them.

[19]

D.C. Bartol set
    out the objectives of the application, namely: to gather sufficient evidence of
    the full scope of the drug network, learn the stash locations, identify the
    persons assisting with drug transactions or exchanges, identify the couriers of
    drugs and money, and to seize evidence to support trafficking charges against
    the appellant, Mr. Meggoe and Money and any co-conspirators.

[20]

He addressed
    the three components of s. 487.01(1), stating that he believed that the covert
    interception of one or more of the drug shipments and currency shipments will
    provide police with evidence to further their investigation while at the same
    time preserving the integrity of the ongoing criminal investigation. He
    expressed his belief that it was in the best interests of the administration of
    justice to issue the warrant. The investigation was ongoing and a conventional
    search warrant would by its nature likely terminate the investigation as the
    main targets would be immediately notified that they were the subject of a
    police investigation. He noted his belief that no other statutory provision
    would permit the technique contemplated by the general warrant.

[21]

He believed that
    the appellant, Mr. Meggoe and Money were utilizing the storage locker to
    store the majority of the drugs and money and concluded by stating: I believe
    that there will be further evidence collected from the storage locker that will
    further support the charges of possession for the purpose of trafficking. He
    proposed 15 conditions and sought authorization to covertly enter and search
    the storage locker from November 9, 2017 to January 8, 2018.

[22]

A general
    warrant was granted by the issuing judge on November 9, 2017, and on November
    22, 2017, police covertly entered and searched the storage locker, finding
    cocaine, marijuana, oxycodone, alprazolam and Canadian currency. This was the
    only entry made.

[23]

The appellant
    was arrested on December 14, 2017. A search of his room revealed the key for
    storage locker 316. Money, who was identified as Novado Fraser, was arrested
    later that day at the airport. A search of his luggage revealed 11 ounces of
    cocaine. A search of a cell phone seized from the appellant on his arrest
    revealed text messages between the appellant and Mr. Fraser as Mr. Fraser was
    arriving in Thunder Bay.

[24]

The appellant
    was charged and subsequently tried, and convicted. As mentioned, at trial, he
    unsuccessfully challenged the general warrant.

C.

Reviewing
    Judges Reasons

[25]

The reviewing
    judge found that the ITO, as amplified by the cross-examination of D.C. Bartol,
    was sufficient to afford the issuing judge reasonable grounds to issue the
    general warrant. In addressing the requirement for reasonable grounds to
    believe an offence has taken place and that evidence of a crime would be found
    in the storage locker, he stated that the standard was one of reasonable
    probability, and did not rise to the standard of proof on a balance of
    probabilities or proof beyond a reasonable doubt. As the reviewing judge, he
    was to inquire whether there was a basis upon which the issuing judge could be
    satisfied that the necessary preconditions to issue the warrant existed.

[26]

After
    instructing himself on the law, he noted that the ITO depended on two planks:
    the information collected from CIs and the information generated directly by
    police surveillance and other investigative techniques. Neither plank was
    independently capable of justifying the grant of the warrant. The reliability
    of the police investigation, particularly with respect to the storage locker,
    was strong but the information provided by the CIs required scrutiny pursuant
    to
R. v. Debot
, [1989] 2 S.C.R. 1140. Even if it were
    trustworthy, there remained the question of whether that information together
    with that collected by the police investigation objectively established the
    reasonable grounds to issue the warrant. He concluded that the CI information
    was compelling, credible and corroborated. The information was detailed in identifying
    the street names of the sellers, the location of the drug transactions, the
    vehicle descriptions, the cell phone number used by Marshall, that Marshall
    recruited women to sell the drugs, the drug packaging and pricing, and the frequency
    of the transactions. In addition, each CI provided information from August,
    September and October of 2017 and described the interactions and the
    individuals involved with similar particularity.

[27]

The reviewing
    judge found that the issuing judge had ample information available to determine
    the credibility and reliability of each CI based on the information in the ITO.
    Finally, the CI accounts were corroborated by the police observations of
    suspected drug transactions behind the Royalton Hotel, the grey Toyota and the
    Volkswagen Jetta involved in the suspected transactions and found to be rented by
    the appellant and Mr. Meggoe respectively, and the cell phone number associated
    with the appellant. He noted that the totality of the circumstances must be
    considered. In this case, the information was compelling and corroborated in
    every material respect.

[28]

He described
    how the surveillance video at the storage locker revealed that: the locker was
    rented by someone likely using a false name with false identification; the vehicles
    rented by the appellant and Mr. Meggoe were seen at the storage locker;
    significant activity was noted with each visit to the locker, particularly the
    movement of bags or packs between the vehicles and the storage locker; the
    appellant and Mr. Meggoe were present and accessing the storage locker; and the
    individuals observed appeared to be trying to conceal their actions.

[29]

The reviewing
    judge stated that D.C. Bartol believed that the general warrant was needed to
    continue the investigation and ultimately uncover the full extent of the drug
    operation. He was cross-examined at length. The reviewing judge stated that the
    police believed that there were no other provisions in the
Criminal Code
or any other Act of Parliament that would provide for a warrant permitting the
    investigative techniques sought. The reviewing judge concluded that the ITO, as
    amplified by the cross-examination of D.C. Bartol was sufficient to afford the
    issuing judge reasonable grounds to issue the general warrant. He accordingly dismissed
    the appellants s. 8
Charter
application.

D.

Analysis

[30]

Section
    487.01(1) of the
Criminal Code
addresses the three requirements that
    need to be met to obtain a general warrant. That subsection provides:

487.01 (1)
    A provincial court judge, a judge of a superior court of criminal jurisdiction
    or a judge as defined in section 552 may issue a warrant in writing authorizing
    a peace officer to, subject to this section, use any device or investigative
    technique or procedure or do any thing described in the warrant that would, if
    not authorized, constitute an unreasonable search or seizure in respect of a
    person or a persons property if:

(a) the
    judge is satisfied by information on oath in writing that there are reasonable
    grounds to believe that an offence against this or any other Act of Parliament
    has been or will be committed and that information concerning the offence will
    be obtained through the use of the technique, procedure or device or the doing
    of the thing;

(b) the
    judge is satisfied that it is in the best interests of the administration of
    justice to issue the warrant; and

(c)
    there is no other provision in this or any other Act of Parliament that would
    provide for a warrant, authorization or order permitting the technique,
    procedure or device to be used or the thing to be done.

[31]

Boiled down to
    its basics, the issuing judge had to be satisfied that (i) there were
    reasonable grounds to believe that an offence had been or would be committed
    and that information concerning the offence would be obtained through the use
    of the general warrant, (ii) it was in the best interests of the administration
    of justice to issue the warrant, and (iii) there was no other federal statutory
    provision that would provide for a warrant permitting the technique or thing
    sought to be done.

[32]

In
R. v. Ha
, 2009
    ONCA 340, 96 O.R. (3d) 751, leave to appeal refused, [2009] S.C.C.A. No. 295, MacPherson
    J.A. discussed s. 487.01 in some detail noting, at para. 26, that it focuses
    not on authorizing specific techniques but rather on whether the public
    interest in authorizing the specific investigative technique in issue is
    sufficiently strong in the circumstances to overcome an individuals
    constitutional right not to be subject to an unreasonable search or seizure.

[33]

In
Ha
, this court
    held that a covert entry and search falls squarely within the meaning of an
    investigative technique or procedure under s. 487.01. The subsection (c) requirement
    was met in that case because no provision in any other federal statute would
    authorize an unlimited number of covert entries and searches on private
    property over a two-month period. This court, at para. 42, accepted the
    proposition put forward by Frankel J.A. in
R.
    v. Brand
, 2008 BCCA 94, 229
    C.C.C. (3d) 443, at para. 51, that there was nothing wrong in utilizing a
    general warrant to obtain information with a view to gathering additional and
    possibly better evidence than that which could be seized immediately through
    the execution of a search warrant. Subsection (b) was met as the evidence obtained
    by the police in
Ha
strongly pointed to the accused having a
    major role in a drug laboratory and the warrant was not merely a fishing
    expedition. The authorization of multiple entries and the 59-day duration of
    the warrant, on the facts of that case, were considered to be reasonable. The
    court was also satisfied that the conditions attached to the general warrant
    were explicit, clear and narrowly drawn as described in
R. v. Brooks
(2003), 178 C.C.C. (3d) 361 (Ont. C.A.).

[34]

In
R. v. TELUS Communications Co.
, 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 56, in concurring
    reasons, Moldaver J. noted that subsection (c) is designed to ensure that the
    general warrant is used sparingly as a warrant of limited resort and, citing
    S.C. Hutchison et al.,
Search and Seizure
    Law in Canada
(loose-leaf), at p. 16-40.3, to guard against it becoming an easy back door
    for other techniques that have more demanding pre-authorization requirements.

[35]

At para. 77, he
    addressed the test under s. 487.01(1)(c), stating:

The test under s.
    487.01(1)(c) must consider the investigative technique that the police seek to
    utilize with an eye to its actual substance and not merely its formal
    trappings. The provision must be interpreted so as to afford the police the
    flexibility Parliament contemplated in creating the general warrant, while
    safeguarding against its misuse. As the facts of this case illustrate, there is
    a need for heightened judicial scrutiny where Parliament has provided an
    authorization for an investigative technique that is substantively equivalent
    to what the police seek but requires more onerous preconditions.

[36]

The appellant
    advances four arguments in support of his position that his s. 8
Charter
rights were violated and also urges this court to conclude that under s. 24(2)
    of the
Charter
, the
Grant
test favours exclusion of the evidence
    seized.

[37]

First, he
    submits that the reviewing judge erred by applying the wrong standard for
    reasonable grounds and that there were insufficient grounds before the issuing judge
    to support a general warrant. In that regard, he argues that the ITO only
    disclosed possibilities, not a reasonable probability that the covert entry
    into the storage locker would reveal evidence of offences as required by s. 487.01(1)(a).
    The evidence before the issuing judge did not show that the use of a covert
    entry would produce evidence to support a charge. He asserts that the ITO
    contained conditional language such as if controlled substances are located,
    should the police discover a large quantity of drugs, and that the reviewing
    judge used phrases such as [i]t was hoped and police hoped which imply
    reservation, not likelihood.

[38]

In addition, he
    argues that the timing of the ITO detracted from there being any reasonable
    probability of evidence being found. The CIs provided information in the August
    to October timeframe and camera surveillance of the locker ended on October 19,
    yet the warrant was issued on November 9, 2017.

[39]

I do not agree with
    these submissions.

[40]

The reviewing
    judges first task, which he recognized and applied, was to consider whether
    the issuing judge had a basis on which to issue the warrant:
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at p. 1452. He also correctly set out the
    standard for reasonable grounds as one of reasonable probability or
    credibly-based probability:
Hunter v.
    Southam Inc.
,

[1984] 2 S.C.R. 145, at pp. 167-68;
Debot
, at p. 1166. The reviewing judges use of the word hope
    in his reasons was in the context of summarizing some of D.C. Bartols evidence
    and the ITO, and it was not his articulation or application of the standard of
    reasonable probability.

[41]

After a
    detailed review, the reviewing judge was satisfied that there was a basis upon which
    the issuing judge could be satisfied that there were reasonable grounds to
    support the issuance of a general warrant. Although D.C. Bartol used some
    conditional terminology, he clearly set out in the ITO that the police believed
    that drugs and other evidence of trafficking would be located in the storage
    locker. He also testified that he believed the police had reasonable and
    probable grounds for a
Controlled Drugs and
    Substances Act
, S.C.
    1996, c. 19 warrant and a conventional search warrant. The reasonable and
    probable grounds were supported by the information provided from the CIs and
    the police investigation. Reviewing the ITO and D.C. Bartols evidence in
    totality, it is hard to see how any other conclusion could be reached.

[42]

As for timing, in
    this case, the appellant and Mr. Meggoe had been using the storage locker for
    months, since July 31, 2017. In October, the month preceding the ITO, they were
    observed accessing the storage locker at least 12 times. Although it was put to
    him multiple times in cross-examination, D.C. Bartol did not agree that it was
    common for drugs to be moved between stash locations to evade police or
    prevent seizure, only that it happened sometimes out of precaution. When the general
    warrant was issued on November 9, 2017, only a few weeks after the last
    observation, it was reasonable to believe that information concerning the
    offences would still be found there.

[43]

I would not
    give effect to this ground of appeal.

[44]

Second, the
    appellant submits that the reviewing judge applied the wrong legal test under
    s. 487.01(1), treated the police request as being for a conventional warrant,
    and neglected to consider all of the components of s. 487.01(1). Counsel
    particularly emphasized the failure of the reviewing judge to address the best
    interests of the administration of justice element found in s. 487.01(1)(b).

[45]

It is the case
    that, consistent with the submissions of counsel, the reviewing judge placed
    emphasis on the reasonable grounds requirement found in s. 487.01(1)(a)
    and did not explicitly use the term best interests in his reasons. However,
    he referred to s. 487.01(1) as a whole and dealt with the issue of best
    interests in the context of the argument made before him. In submissions before
    the reviewing judge, defence counsel had argued that it would only be in the
    interests of justice to permit entry to the storage locker if there were a
    reasonable basis to believe evidence would be located there and that it was not
    in the interests of justice to go on a fishing expedition. The reviewing judge
    clearly found that there was a reasonable basis to conclude that evidence would
    be located in the storage locker, thus implicitly negating any suggestion of a
    fishing expedition.

[46]

Defence counsel
    also submitted that the interests of justice and the no other provision
    authorizing blurred together although he would try to keep them distinct.

[47]

The reviewing
    judge expressly addressed the third element or no other provision authorizing
    element of s. 487.01(1) noting that D.C. Bartol had stated that there were no
    other Acts of Parliament or provisions in the
Criminal Code
that would authorize a warrant permitting the techniques or procedures needed
    to conduct this particular investigation. This lends further credence to the
    conclusion that the reviewing judge did not overlook the three elements of s. 487.01(1)
    including the best interests requirement. Although it would have been
    preferable if the reviewing judge had expressly referenced this element, reading
    his reasons as a whole, he implicitly considered the best interests of justice.
    As he stated at p. 23:

The CIs and the
    information they provided, were worthy of belief. The police investigation,
    from corroborating the CIs information to locating the storage locker, was
    unassailable. It followed a linear and logical path from one step to the next.
    While the focus of the investigation commenced at the Royalton Hotel, it
    inevitably shifted to the storage locker. The information in the ITO, as
    amplified by the cross-examination of Detective Constable Bartol, set out those
    investigatory steps taken, the objectives of the investigation and the need for
    a general warrant to surreptitiously enter the storage locker, obtain evidence
    and continue the investigation.

[48]

D.C. Bartol had
    also explicitly addressed the best interests requirement in the ITO. He
    believed it would be in the best interests of the administration of justice to
    issue the proposed general warrant because the investigation was ongoing and
    the execution of a conventional warrant would likely terminate the
    investigation, as the main targets would be immediately notified that they were
    the subject of a police investigation. The reviewing judge referenced the need
    for surreptitious entry and concluded that [n]othing in the ITO, nor in
    Detective Constable Bartols evidence in cross-examination, persuades me, as a
    reviewing justice, that seeking a general warrant in these circumstances, was
    inappropriate.

[49]

Turning to the
    appellants third argument, he submits that the warrant permitted potentially
    unlimited covert entries over a 60-day period and as such, could not meet the
    best interests of the administration of justice requirement under s. 487.01(1)(b).
    He argues that the conditions of the warrant should have been explicit, clear,
    and narrowly drawn. Section 487.01(3) of the
Criminal Code
provides that:

(3) A
    warrant issued under subsection (1) shall contain such terms and conditions as
    the judge considers advisable to ensure that any search or seizure authorized
    by the warrant is reasonable in the circumstances.

[50]

This argument was
    not made by the appellant before the reviewing judge and is raised for the
    first time on appeal. In any event, although the facts of each case differ, there
    was judicial precedent for such a time period (see
Ha
, at para.
    51;
Brand
, at para. 14; and
R. v. Lucas
,
    2014 ONCA 561, 121 O.R. (3d) 303, at para. 186, leave to appeal refused,

[2014] S.C.C.A. No. 460, [2014] S.C.C.A.
    No. 461). In addition, D.C. Bartol explained the need for 60 days to uncover
    the bulk amount of hidden controlled substances and the full drug operation,
    and to add to the success of the investigation while preserving its integrity.
    Here the targets had rented the storage locker for months and in October alone,
    had accessed it at least 12 times. As this court noted in both
Ha
and
Lucas
, an
    authorization under s. 186(4)(e) of the
Criminal Code
to intercept private communications similarly may be valid
    for up to 60 days. The time was reasonable in the circumstances, and the 15
    conditions were clear and sufficiently narrow.

[51]

Fourth, the
    appellant submits that the purpose of the covert entry, namely the collection
    of evidence, could have been accomplished by other means such as a production
    order for past text messages and numbers called and an authorization to
    intercept private communications under Part VI of the
Criminal Code
.
    He argues that in pursuing a general warrant, the police were attempting to
    make an end run around these more demanding and time-consuming provisions.

[52]

I do not accept
    this submission.

[53]

Even though the
    police might have gathered some evidence under a conventional search warrant,
    production order, or authorization to intercept communications, this does not
    preclude reliance on a general warrant: see e.g.
Brand
, at
    paras. 50-51;
Ha
, at paras. 42, 52. In
Telus
, Moldaver
    J. confirmed that his approach to s. 487
.01(1)(c)
has
    nothing to do with investigative necessity: at para. 100. In addition, at para.
    102, he clarified that:

[U]nder the no
    other provision test, the police are not asked to show why an alternative
    authorization
would not work
on the facts of a particular case, but
    rather why it is
substantively different
from what Parliament has already provided.
    Though the fact that an alternative authorization will satisfy the
    investigative objective of the police may be helpful as a factor in
    demonstrating its substantive equivalence, the inquiry under the no other
    provision test remains focused on the latter point, not the former. If the
    police successfully make this showing, the inquiry under s. 487.01(1)(c) ends. [Emphasis
    in original.]

[54]

MacPherson J.A.
    similarly stated in
Ha
, at para. 43:

The focus in the s.
    487.01(1)(c) analysis is not on whether there are other investigative
    techniques that might accomplish the purported investigative purposes or goals
    of the police; rather, the focus is on the particular investigative technique
    or procedure that the police seek to utilize and whether it can properly be
    authorized by another provision in the
Code
or any other federal statute.

[55]

As the
    appellant concedes, there is no other provision in the
Criminal Code
or other federal statute that would have authorized covert entries and searches
    at the storage locker. The other investigative techniques raised by the
    appellant are not, in substance, equivalent to unlimited covert entries and
    searches on private property. They would not allow the police to do what they
    sought to do in this case, namely, search the storage locker, where they
    believed evidence of the offences was located, without effectively terminating
    the ongoing investigation. The police in this case were not using the general
    warrant to circumvent more onerous requirements for other substantively
    equivalent investigative techniques.

[56]

In light of my
    conclusion that none of the grounds of appeal relating to the alleged s. 8
    breach can succeed, it is unnecessary to address the appellants ground
    relating to s. 24(2).

E.

Disposition

[57]

For these
    reasons, I would dismiss the appeal.

Released: July 28, 2021 P.R.

S. E. Pepall
    J.A.

I agree. Paul
    Rouleau J.A.

I agree. L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hume v. 11534599 Canada Corp.,
    2021 ONCA 549

DATE: 20210727

DOCKET: M52657 (C69657)

Thorburn J.A. (Motions Judge)

BETWEEN

Ivylin Ricketts Hume and Weston
    Rodney Hume

Applicants

(Respondents/Responding Parties)

and

11534599
    Canada Corp.

Respondent

(Appellant/Moving Party)

Paul Robson, for the moving party

Elaine S. Peritz, for the responding
    parties

Heard: July 19, 2021 by videoconference

ENDORSEMENT

The order sought

[1]

The moving party-appellant, 11534599 Canada
    Corp., seeks an order granting a stay pending appeal of the order of Justice Kendra
    D. Coats (the Order), dated June 28, 2021.

[2]

The Order requires the appellant to forthwith

provide possession of 7047 Dalewood Drive, Mississauga (the property) to
    the respondents, Mr. and Ms. Hume. The Order requires the respondents to redeem
    the appellants mortgage and the appellant to assign the mortgage debt and
    convey the property to a third-party lender, pursuant to s. 2 of the
Mortgages
    Act
, R.S.O. 1990, c. M.40

Background

[3]

In September 2019, the appellant provided a
    second mortgage to the respondents in the amount of $215,000. The first
    mortgage is held by CIBC in the approximate amount of $480,000. The second
    mortgage was due on September 1, 2020 and automatically renewed on September
    2.

[4]

The appellant says that the respondents
    defaulted on the interest payments due on the loan on October 1. Total arrears
    amounted to $4,044.50.

[5]

The appellant sent out a demand letter on
    October 2 but did not receive a response.

[6]

On October 28, 2020, upon conducting a routine
    check of the property, the appellant found the property to be unoccupied and severely
    damaged by a fire earlier that month.

[7]

Without warning or notification to the respondents,
    the appellant retained a property manager to change the locks and post notices
    to secure control and possession of the property. Possession of the property was
    secured on October 28, 2020.

[8]

On November 4, 2020, Mr. and Ms. Humes counsel accused
    the appellant of breaking and entering and claimed that the possession was
    illegal as the property was not vacant. The respondents claimed entitlement to
    pay the arrears and demanded an assignment of the mortgage.

[9]

On December 30, 2020, a Notice of Sale was sent
    to the address set out in the mortgage (i.e. the property), although the
    respondents no longer resided there, as well as to the respondents lawyer.
    After receiving the Notice of Sale in January 2021, the respondents again
    requested a payout statement and were given a mortgage discharge statement.

[10]

The respondents lawyer and a new third-party
    lender then demanded that the mortgage be assigned to a third-party lender on
    the basis of s. 2(1) of the
Mortgages Act
. The appellant refused on
    the basis of the exception in s. 2(3), which provides that the obligation of a
    mortgagee to transfer is not applicable where the mortgagee is or has been

in possession of the mortgaged property.

The test to be met for a stay pending appeal

[11]

In deciding whether to stay an order being
    appealed, the test is the same as that for an interlocutory injunction. The
    overarching consideration is the interests of justice:
Zafar v. Saiyid
,
    2017 ONCA 919, at para. 18;
Circuit World Corp. v. Lesperance
(1997),
    33 O.R. (3d) 674 (C.A.), at para. 8.

[12]

The factors to be considered are whether:

i.

there is a serious issue to be tried, based on a preliminary
    assessment of the merits of the case;

ii.

the applicant would suffer irreparable harm if
    the application were refused; and,

iii.

the balance of convenience, that is, which parties would suffer
    greater harm from the granting or refusal of the remedy pending a decision on
    the merits: see
M & M Homes Inc. v. 2088556 Ontario Inc.
, 2020
    ONCA 134, 51 C.P.C. (8th) 253, at para. 29;

RJR-MacDonald
    Inc. v. Canada (Attorney General)
, [1994] 1
    S.C.R. 311, at p. 334.

[13]

The strength of one factor may compensate for the
    weakness of another:
Zafar
, at para. 18.

The application judges decision

[14]

In this case, the application judge ruled that
    the appellant was entitled to quiet or peaceable possession of the property.
    The issue was whether it took peaceable possession of the property.

[15]

The application judge noted the respondents were
    in default.

[16]

However, in her endorsement at paras. 48-50, the
    application judge found that the property was not vacant; the respondents had
    not abandoned the property and their possessions remained there; the appellant could
    expect resistance to the taking of possession; the property was locked; and the
    respondents lawyer challenged the taking of possession within days.

[17]

She therefore held that the appellant did not take
    quiet possession but, rather, took illegal possession of the property contrary
    to the
Mortgages Act
. Accordingly, the appellant could not rely on s.
    2(3) of the
Mortgages Act
to refuse assignment of the mortgage to the
    new third-party lender.

Whether there is a serious issue to be tried

[18]

The appellant claims there is a serious issue to
    be tried. The appellant claims that not granting a stay would trammel the
    appellants contractual and statutory entitlement to quiet possession upon the
    mortgagors default. The appellant further submits that there is no basis in
    law for the determination that the appellant took unlawful possession of the
    property as the respondents were in default, they were not occupying the
    premises as the property was damaged by fire, and the appellant did no more
    than any prudent mortgagee would do to effect control of the premises in these
    circumstances.

[19]

The appellant suggests the application judge
    made the following errors which raise serious issues to be determined:

i.

Although she noted that neither notice nor vacant possession is
    required before taking possession of the property, the appellants right to
    possess was seriously challenged after it received the letter from the respondents
    counsel, such that there was no peaceable possession;

ii.

The application judge further determined that the appellant did not
    have the statutory right, pursuant to s. 2(3) of the
Mortgages Act
, to
    refuse to assign the mortgage but cited no legal authority for why s. 2(3) was
    not applicable where the mortgagee is in
de facto
possession;

iii.

The application judge placed too high a
    threshold for the determination of whether the appellant established that it
    had acquired peaceable possession

by invoking the definition in s. 41
    of the
Criminal Code
; and,

iv.

Notwithstanding the requirement to pay
    litigation fees and property management fees, the respondents were not
    obligated to pay them on the grounds that the appellants possession of the
    property was not legal.

[20]

In
Royal Trust Corp. of Canada v. Gupta
,
    1997 CarswellOnt 571, 24 O.T.C. 27 (Gen. Div.), at paras. 35-37, the court observed:

If peaceably is interpreted literally, i.e.,
    no conflict arose, then Royal Trust took possession peaceably. However, if peaceably
    is interpreted to mean with knowledge and consent of the mortgagors, or voluntarily
    as described by the Court of Appeal [in
Lee v. Guettler
(1975), 10 O.R. (2d) 257 (C.A.)], then Royal Trust did not take
    possession peaceably.

Although the mortgagee has the right to
    immediate possession upon default, the mortgagee usually does not exercise that
    right unless the mortgagor consents to giving up possession, or if the premises
    are abandoned.

[21]

The appellant relies on
Royal Trust
    Corp. of Canada v. 880185 Ontario Ltd.
(2005),

198 O.A.C. 235
    (C.A.). The appellant says that this case stands for the proposition that the
    mortgagee is entitled to unilaterally take possession immediately upon the
    mortgagors default, so long as possession is exercised peaceably.

[22]

The appellant also relies on the decision in
Lusk
    v. Perrin
, [1920] O.J. No. 201 (Ont. H.C.) where the court held that the
    lands being vacant [as Lusk had been away from the property for a month],
    Perrin was able to enter peaceably. The appellant submits that this case
    stands for the proposition that, on default, the mortgagee is entitled to
    remain in possession even if possession was not taken peaceably.

[23]

The respondents submit that the application
    judge was correct to find that the appellant did not take quiet possession of
    the property and that appellants unilateral changing of the locks was
    unlawful. The respondents argue that the law and the findings of fact relied
    upon by the application judge are consistent with the principles set out in the
    cases relied upon by the appellant below and on appeal.

[24]

I agree that this case appears to be distinguishable
    from the cases cited by the appellant as in this case:

i.

The property was not vacant because the
    respondents chose to leave. The respondents were forced to leave after the fire;

ii.

They left the property locked to prevent others from entering and
    their possessions remained there.

iii.

There was no abandonment of the property; and,

iv.

The appellant could reasonably expect that the respondents would not
    consent to taking possession without notice, which resistance took place within
    days of the appellant taking possession.

[25]

I find that, while the respondents have raised a
    serious argument that the appellant did not effect peaceable possession, the
    interpretation of peaceable possession remains a serious issue on the appeal.

Irreparable harm and where the balance of
    convenience lies

[26]

The appellant claims that if the stay is not
    granted it will suffer irreparable harm to its ability to enforce this and
    other like mortgages given the finding that it took unlawful possession. The
    appellant may forfeit its entitlement to quiet possession; and lose the
    security of its litigation costs, property management expenses and other
    charges the respondents are contractually obligated to pay. Moreover, the
    appellant claims that there would be nothing prohibiting the respondents, or
    the new third-party lender, from selling the property and prohibiting the
    appellant from collecting the full amount owed.

[27]

The respondents claim the appellant will suffer
    no irreparable harm as the respondents undertake not to sell the property, the
    appellant will be entitled to seek damages, there is equity in the property and,
    to the extent that not all funds may be recovered, this was a risk assumed by
    the appellant in giving a second mortgage.

[28]

The respondents point out that in
Dhatt v.
    Beer
, 2020 ONCA 545, the Dhatts provided an undertaking not to deal with
    the property pending disposition of the appeal. Zarnett J.A., as motion judge,
    denied the Beers requested stay of an order transferring ownership of a
    property, holding that the right to effective relief as a result of a
    successful appeal will not be lost given this undertaking.

[29]

I find that, while the appellant may not recover
    all funds owing, the appellant will not suffer irreparable harm if there is no
    stay pending this expedited appeal. There is equity in the property, the
    appellant may pursue a claim for relief, and the respondents have undertaken
    not to sell the property in the interim. I note that Mr. and Ms. Hume, on
    the other hand, would suffer significant hardship if they lost their principal
    residence which they only vacated as a result of the fire.

Conclusion

[30]

For the above reasons, I find that, while there
    is a serious issue to be resolved on appeal, the appellant will not suffer
    irreparable harm in the absence of the proposed stay. If a stay were granted,
    however, the respondents would suffer significant hardship as they would lose
    their home. As such, the balance of convenience favours the respondents.

[31]

The motion to stay the order of the application
    judge pending appeal is therefore dismissed.

[32]

The issue of costs is reserved for the panel
    hearing the appeal.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sakab Saudi Holding Company v. Al
    Jabri, 2021 ONCA 548

DATE: 20210726

DOCKET: M52628 (C69620)

Benotto
    J.A. (Motion Judge)

BETWEEN

Sakab Saudi Holding Company, Alpha Star Aviation Services Company,
    Enma Al Ared Real Estate Investment and Development Company, Kafaat Business
    Solutions Company, Security Control Company, Armour Security Industrial
    Manufacturing Company, Saudi Technology & Security Comprehensive Control
    Company, Technology Control Company, New Dawn Contracting Company and Sky Prime
    Investment Company

Plaintiffs (Respondents/
Responding Parties)

and

Saad
    Khalid S Al Jabri,
Dreams International Advisory Services Ltd.
, 1147848
    B.C. Ltd.,
New East (US) Inc.
,
New East 804 805 LLC
,
New East Back
    Bay LLC
,
New East DC LLC
, Jaalik Contracting Ltd., Nadyah Sulaiman A
    Al Jabbari, Khalid Saad Khalid Al Jabri,
Mohammed Saad KH Al Jabri
, Naif
    Saad KH Al Jabri, Sulaiman Saad Khalid Al Jabri, Hissah Saad KH Al Jabri, Saleh
    Saad Khalid Al Jabri, Canadian Growth Investments Limited, Gryphon Secure Inc.,
    Infosec Global Inc., QFive Global Investment Inc.,
Golden Valley Management
    Ltd.
, New South East Pte. Ltd.,
Ten Leaves Management Ltd.
, 276143
    Ontario Inc., Nagy Moustafa, HSBC Trustee (C.I.) Limited in its capacity as
    Trustee of the Black Stallion Trust, HSBC Private Banking Nominee 3 (Jersey)
    Limited in its capacity as a Nominee Shareholder of Black Stallion Investments Limited,
    Black Stallion Investments Limited, New East Family Foundation,
New East International
    Limited, New South East Establishment, NCom Inc.
and
2701644 Ontario Inc.

Defendants (Appellants/

Moving Parties
)

Harry Underwood and Andrew Max, for the
    moving parties

Munaf Mohamed, Q.C., for the responding
    parties

Heard: July 16, 2021, by video conference

ENDORSEMENT

[1]

The applicants are some of the defendants in this action. They move for
    a stay of the order of Gilmore J. which determined that Ontario has jurisdiction
    over an action involving an alleged fraud by former high-ranking government
    officers in Saudi Arabia.

[2]

Several orders in the court below set out the extensive history. I
    summarize only that which frames this motion.

FACTS IN BRIEF

(1)

Background to the action

[3]

The plaintiffs are a group of ten companies
    established between 2007 and 2015. They operate in strategic industries, such
    as aerospace and cybersecurity. They also fund covert operations for
    counterterrorism operations in Saudi Arabia and operate legitimate businesses
    to provide plausible public cover for these activities.

[4]

The plaintiffs allege that billions of dollars
    have been brazenly stolen through a fraudulent scheme masterminded by a former
    Saudi cabinet minister, the defendant Saad Khalid Al Jabri (Al Jabri). The
    other defendants allegedly participated in or benefitted from the scheme to
    defraud the plaintiffs. Al Jabri was the Director of the Department of Officers
    and Personnel Affairs and Security Advisor to the Ministry of Interior of Saudi
    Arabia. He is highly educated and worked for decades as a senior civil servant
    in the security and intelligence agencies of Saudi Arabia. He served as a
    Minister of State and as a Special Advisor to Muhammed Bin Nayef (MBN), the
    former Crown Prince and Minister of the Interior.

[5]

In 2015, on King Abdullahs death, King Salman
    acceded to the throne and MBN was named Minister of the Interior. King Salmans
    son, Mohammed Bin Salman (MBS), was appointed Minister of Defence. In April
    2015, MBN was named Crown Prince and MBS was named Deputy Crown Prince. MBN was
    later deposed in a coup.

[6]

In September 2015, Al Jabri was removed
    from office at the insistence of MBS. The reason for the removal is in dispute.
    The plaintiffs say he was removed because of his fraudulent activity. Al Jabri
    submits that it was because he met with the U.S. Central Intelligence Agency
    Director and did not report that meeting to MBS. In any event, an investigation
    into Al Jabri was conducted and he eventually moved to Canada. He lives in
    Toronto with his wife and family members.

(2)

The allegations of fraud

[7]

The plaintiffs allege that Al Jabri organized a
    fraudulent scheme to misappropriate $3.5B USD from the plaintiffs. He did so,
    it is alleged, using nominees to hide his control and beneficial ownership of
    significant assets. He installed family members, including his son, Mohammed Al
    Jabri (Mohammed), as nominee shareholders. He then made significant transfers
    to the nominees. The misappropriated funds were used to acquire assets around
    the world.

[8]

The plaintiffs say they have already traced
    nearly half a billion US dollars through this scheme. There is also a gift
    deed that Al Jabri made to Mohammed whereby Al Jabri purportedly gifted
    Mohammed all of his worldwide assets. Mohammed used these assets, in part, to
    benefit family members including through the purchase of a $13 million home in
    Toronto for Al Jabri.

(3)

The
Mareva
Injunction

[9]

Gilmore J. has had carriage of all the steps in
    the litigation. In January 2021, she issued an
Mareva
injunction over
    all of Al Jabris worldwide assets, restraining him from dissipating his
    assets. In February 2021, the plaintiffs learned of the gift to Mohammed and
    returned to Gilmore J. to seek to vary the order to secure the gifted assets. Gilmore
    J. adjourned the motion so that Mohammed and other corporate defendants could
    move to challenge the jurisdiction of the Ontario courts.

(4)

The Jurisdiction Decision

[10]

The jurisdiction motion was heard on May 19,
    2021, with reasons released on June 22, 2021.

[11]

The motion judge held that to assert
    jurisdiction over a foreign defendant, a good arguable case must be
    established on the record before her. She concluded on five separate grounds
    that Ontario had jurisdiction. In particular:

1.

A presumptive connecting factor arose from
    numerous contracts made in Ontario.

2.

The deed of gift from Al Jabri to Mohammed was
    written and signed in Ontario. She also concluded that the gift was a ruse and that
    Al Jabri continues to direct the management of the assets acquired through a
    fraudulent scheme, even though Mohammed may be the legal or beneficial owner of
    the assets.

3.

There were assets in Ontario acquired with funds
    re-gifted by Mohammed to Al Jabri.

4.

Acts in furtherance of the alleged tort of
    conspiracy occurred in Ontario.

5.

There is a real and substantial connection
    between the subject matter of the claim and Ontario which had not been rebutted
    by the defendants who had not raised
forum non conveniens.

(5)

Further scheduled motion

[12]

The motion to expand the
Mareva
to
    include Mohammads assets is now scheduled for August 9, 2021.

[13]

On July 5, 2021, the Notice of Appeal and this
    motion were filed.

ISSUE

[14]

The only issue before me is whether to grant a
    stay of jurisdiction so that the underlying action (including the August 9
    motion) awaits the determination of the jurisdiction appeal.

DISCUSSION

[15]

The test for a stay pending appeal is not in
    dispute so I turn to each component
[1]
.

(1)

Serious
    issue to be determined

[16]

A preliminary assessment of the merits of the
    appeal presumes correctness of the decision under appeal.

[17]

The moving parties submit that the motion judge
    erred by:

·

Relying on efficiency and fairness, and the
    convenience of a single trial, as relevant factors for determining jurisdiction
simpliciter
.

·

Finding that jurisdiction could be assumed over
    the claim as a whole rather than through the presence of a presumptive
    connecting factor with respect to each defendant.

·

Relying on the actions of Al Jabri and his
    connections to Ontario to ground jurisdiction over the other defendants.

·

Failing to apply the proper legal test in
    finding that the presumptive connecting factor of a contract connected with the
    dispute made in the province connected the defendants and the claim against
    them with the jurisdiction.

·

Relying on a document other than a contract,
    namely a gift deed, and on contracts unconnected to the defendants.

·

Finding that the use of proceeds of an alleged
    fraud to acquire property located in Ontario is a presumptive connecting
    factor.

[18]

In particular, the moving parties submit that
    the motion judge erred by concluding that the gift to Mohammed was a connecting
    factor because the gift was made in Turkey, not in Ontario.

[19]

The motion judge concluded that there were five
    independent reasons to find jurisdiction. Any one of them would lead to her
    order being upheld. The record before the motion judge was extensive. (The
    moving parties have filed nearly 3,000 pages on this motion.) It was open to
    the motion judge to conclude on the extensive record before her, that there is
    a real and substantial connection between Ontario, the subject matter of the
    litigation and the defendant.

[20]

The motion judge referred to the gift to
    Mohammed as particularly important. The evidence from Al Jabri himself is
    that an oral promise was made in Turkey in 2017. The motion judge found that the
    circumstances of this gift were undocumented and uncorroborated and that Al
    Jabris evidence on the gift was contradictory. The gift deed was finally written
    in Ontario in late 2018. Transfers in accordance with the gift did not happen
    for months or years after the purported gift was made. Without commenting on
    the validity of the gift, she concluded that the written gift deed could be
    used to ground jurisdiction.

[21]

The motion judge identified other contracts made
    in Ontario and concluded that funds misappropriated from the plaintiffs flowed
    to entities that made the agreements. Further, property in Ontario was purchased
    with these funds.

[22]

While I cannot say the appeal is frivolous, the
    merits of the appeal lean to favour the plaintiffs.

(2)

Irreparable harm

[23]

The moving parties allege that if they are
    required to continue responding to the merits of the
Mareva
injunction
    they suffer irreparable harm because they may be deemed to have attorned to the
    jurisdiction. Anticipating this concern, the plaintiffs undertake not to raise
    the issue of attornment in the appeal and consent to an order in this court
    directing that the moving parties defence of the
Mareva
injunction
    cannot be relied on as attornment in the action. Alternatively, the plaintiffs
    are prepared to proceed with the
Mareva
injunction on an
ex parte
basis, without prejudice to the moving parties rights on a comeback motion.
    The moving parties say this is not enough.

[24]

The moving parties submit that they would remain
    at risk of having attorned to the jurisdiction if they respond to the
    outstanding
Mareva
motion because there is uncertainty with respect to
    the law on this issue. I therefore turn to the source of the alleged
    uncertainty and discuss the implications for this case.

[25]

In 2004, a chambers decision from this court
    granted a stay pending appeal of a jurisdiction decision. In
M.J. Jones
    Inc. v. Kingsway General Insurance Co.
(2004), 242 D.L.R. (4th) 139 (Ont.
    C.A.), Lang J.A. considered a motion for a stay of a jurisdiction order affirmed
    by the Court of Appeal pending an application for leave to appeal to the
    Supreme Court of Canada. The moving party alleged that if they were ordered to
    file a statement of defence, compliance with the order would amount to
    attornment to Ontarios jurisdiction rendering the application moot and causing
    irreparable harm. Lang J.A. found that the moving party might be found to
    have attorned, stating at para. 30:

On the authorities given to me, there is no clear
    answer as to whether court-ordered involuntary participation on the merits will
    be an attornment sufficient to render [the moving partys] leave application
    moot.

[26]

In the 17 years since this decision, this courts judges have addressed
    the question of attornment in the face of a challenge to jurisdiction. There is
    now a body of jurisprudence on this issue.

[27]

In
BTR Global Opportunity Trading Limited
    v. RBC Dexia Investor Services Trust
, 2011 ONCA
    620
, 283 O.A.C. 321, Laskin J.A. considered a request for
    a stay of a jurisdiction order pending an application for leave to appeal to
    the Supreme Court of Canada. The responding party undertook not to argue that
    delivery of a defence or participation in examinations for discovery
    constituted acts of attornment. Referring to
M.J.
    Jones
, Laskin J.A. stated, at paras. 29-31:

[
29
] Without commenting
    on the correctness of that decision, I simply observe that the present case is
    distinguishable. In
M.J. Jones
, Lang J.A. dealt with whether a court order requiring a defendant to
    deliver a statement of defence would amount to attornment. She held that a
    court order requiring a defendant to participate in an action, even though
    involuntarily, might amount to attornment. Therefore, she held that despite the
    plaintiffs undertaking not to treat the defendants participation as
    attornment, refusing a stay could cause irreparable harm.

[
30
] Here, no court order
    or involuntary participation is required because [the plaintiff] asks [the
    defendant] only for a statement of defence to permit it to move ahead with
    discoveries. Furthermore, Lang J.A. appears to have contemplated and approved
    of this very scenario. She wrote at para. 52:

This disposition does not necessarily preclude
    all parties to this action cooperating by exchanging documents and answering
    questions about the merits of the disputes between them. Such exchange, if done
    outside the formal bounds of these court proceedings, would, in my view, not be
    considered an attornment to Ontarios jurisdiction. It would simply be an
    efficient exchange of information that, with the agreement of the parties,
    could later be used either in the Ontario proceeding, or in any subsequent
    Michigan proceeding.

[
31
] As [the documents are
    requested] outside of the formal bounds of the court proceedings, I do not
    consider that the delivery of a statement of defence or participation in
    discoveries, would amount to attornment. If there is no attornment, the risk of
    [the defendants] appeal becoming moot is eliminated. [The defendant]
    therefore, has not made out irreparable harm.

[28]

In
Van Damme v. Gelber
, 2013 ONCA 388, 115 O.R. (3d) 470, at paras. 22-23, Doherty J.A.,
    writing for a panel of this court, considered the participation necessary to
    constitute attornment:

Attornment by participation in court proceedings
    was recently addressed in
Wolfe v. Pickar
, 2011 ONCA 347, 332 D.L.R. (4th) 157, at para. 44, where Goudge J.A.
    said:

[W]hen a party to
    an action appears in court and goes beyond challenging the jurisdiction of the
    court based on
jurisdiction simpliciter
and
forum non conveniens
, the party will be regarded as appearing voluntarily, thus giving the
    court consent-based jurisdiction.

There is also
    authority for the proposition that, if a party appears in a court to challenge
    jurisdiction or seek a stay on the basis of
forum
    non conveniens
, any additional steps taken by the
    party pursuant to an order of the court will also not amount to
    attornment:  see
Gourmet Resources
    International Inc. (Trustee of) v. Paramount Capital Corp.
(1991), 5 C.P.C. (3d) 140 (Ont. C.A.);
M.J.
    Jones Inc. v. Kingsway General Insurance Co.

(2004), 72 O.R. (3d) 68 (C.A.), at paras.
18-31
    (per Lang J.A., in chambers). Giving these cases their widest reasonable
    reading, [the defendants] motion challenging the jurisdiction of the New York
    court, his filing of a defence, and his conduct of depositions and discoveries
    did not amount to attornment.

[29]

In
Yaiguaje v. Chevron Corporation
, 2014 ONCA 40, 315 O.A.C. 109, MacPherson J.A. considered the moving
    parties submission that, even in the face of an undertaking not to raise
    attornment, they will suffer irreparable harm. MacPherson J.A. said, at para.
    11:

I do not accept this
    submission. This court has stated that where a court order requires a party to
    file a defence, compliance with the order, including related conduct of
    depositions and discoveries, does not constitute attornment in the face of an
    ongoing jurisdictional challenge: see
Van Damme v.
    Gelber
, 2013 ONCA 388, 115 O.R. (3d) 470, at para. 23.
    Moreover, and importantly, the responding parties have explicitly stated in
    their factum (para. 28) that if the moving parties simply provide them with
    their statements of defence (without formally filing them), the respondents
    are content to receive the same, without prejudice to the Chevron companies
    Leave to Appeal Applications and will not claim that by doing so they have
    attorned to the jurisdiction of the Ontario Superior Court of Justice.
    See
BTR Global
, at para.
    31. I see no reason not to accept and respect this undertaking.

[30]

Later in 2014, Epstein J.A. considered a stay pending the appeal of a
    jurisdiction motion:
Stuart Budd & Sons Ltd. v.
    IFS Vehicle Distributors ULC
, 2014 ONCA 546, 122 O.R.
    (3d) 472. She referred to differing views concerning when a party risks
    attornment by taking court-ordered steps in the fact of an ongoing jurisdiction
    challenge. She cited
M.J. Jones
,
BTR Global
,
Van Damme
and
Yaiguaje
and concluded that the issue was unresolved: at para. 36. The stay
    was granted.

[31]

I see the case before me differently and  on the facts here  the
    issue is not unresolved. This case is distinguished from
Stuart Budd.

I say
    this for several reasons.

[32]

First, in
Essar Steel Algoma (Re)
, 2016 ONCA 138, 33 C.B.R.
    (6th) 172, at paras. 41-45, Brown J.A. referred to and cited the cases to which
    I have referred and concluded, at para. 52:

[
52
]
       I need not express a view on the effect of court-ordered
    participation in a proceeding on a partys ability to continue to advance a
    jurisdictional challenge because
decisions
    of this court uniformly have held that where the responding party provides the
    court with undertakings of the kind given by Essar in this case, the
    undertakings significantly reduce or remove the risk of irreparable harm.
[Emphasis added.]

[33]

Second,
Van Damme
was a decision by a panel of this court. As MacPherson J.A. pointed out: (i)
    compliance with the order, including related conduct of depositions and
    discoveries, does not constitute attornment in the face of an ongoing jurisdictional
    challenge; and (ii) there is no reason not to respect counsels undertaking.

[34]

Finally, to attorn to the jurisdiction, a party must take a

voluntary
step indicating submission to the jurisdiction. Attornment cannot
    arise is circumstances of duress:
Wolfe v. Wyeth
, 2011 ONCA 347, 332 D.L.R. (4th) 157, at para. 44. The plaintiffs
    submit that a response to a worldwide
Mareva
injunction should not be considered a voluntary step indicating
    submission to the jurisdiction. Rather they say it is an example of duress. The
    plaintiffs analogize the situation here to that in
Schwarzinger
    v. Bramwell
, 2011 BCSC 283 where the British Columbia
    court held that the defendants were under duress when they applied to vary a worldwide
Mareva

injunction. Although their assets were not in the custody of the court,
    the effect of the order was to prohibit them from dealing with assets and conducting
    their day-to-day business operations. Consequently, there was no consent-based
    jurisdiction.

[35]

I agree with the plaintiffs that a response to the worldwide
Mareva
injunction would not amount to
    attornment in these circumstances. The defendants would not be asking the court
    to engage in an issue, unlike in
Wolfe,
where the defendants sought to dismiss or stay the action for issue
    estoppel. Here, there is also the undertaking of the plaintiffs not to assert
    attornment.

[36]

I conclude that the moving parties have not demonstrated that they
    would suffer irreparable harm if a stay pending appeal is not granted.

(3)

Balance of convenience

[37]

The balance of convenience favours the plaintiffs. They point to the
    risk of funds that are the subject matter of the litigation being dissipated.
    Gilmore J. concluded that, on the record before her, there was an attempt to
    put the assets beyond the reach of the plaintiffs and that there is evidence to
    suggest that Al Jabri continues to move money around in furtherance of the alleged
    conspiracy.

[38]

The moving parties have offered to provide an undertaking from Mohammed
    not to dispose of any assets (subject to certain exceptions including
    reasonable living expenses, legal fees, and ordinary course business expenses
    or activities of companies he owns or controls). In oral submissions, counsel
    suggested the appointment of an Arbitrator to oversee this process. I do not
    accept that this is a reasonable proposal that would tilt the balance of
    convenience in favour of the moving parties.

[39]

Considering all of the criteria and the fact that the plaintiffs
    consent to an order of this court that the moving parties will not attorn to
    the jurisdiction by defending the
Mareva
injunction, I conclude that it is not in the interests of justice to
    grant the stay.

[40]

The motion is dismissed with costs in the agreed upon amount of $20,000
    inclusive of disbursements and HST.

M.L.
    Benotto J.A.

[1]

RJR-MacDonald Inc. v. Canada
    (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334.