COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Warren, 2016 ONCA 472

DATE: 20160614

DOCKET: C58949

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Blair Warren

Appellant

Joseph Blair Warren, in person

Tracy Kozlowski, for the respondent

Heard and released orally: June 6, 2016

On appeal from the sentence imposed on March 10, 2014 by
    Justice Frederic Campling of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant pled guilty to impaired driving causing death and driving
    without an interlock device contrary to court order.  Part of his sentence was
    a lifetime driving ban following 5 years in penitentiary.  This was his third
    impaired driving conviction.  Under s. 259(2)(a.1) of the
Criminal
Code
    of Canada
,

R.S.C. 1985, c. C-46, the trial judge has the
    discretion to impose any length of driving prohibition.  The trial judge
    imposed a lifetime prohibition.  He was aware this would affect the appellants
    employment prospects as he was a crane operator.

[2]

There is no basis to interfere with this decision.  We agree with it.
    It is necessary for the protection of the public and consistent with authority
    of this court: see
R. v. Boukchev
(2003)
,
    177 O.A.C. 119; and
R. v. Cowl
, 2009 ONCA 347.

[3]

The appeal against sentence is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wassilyn, 2016 ONCA 511

DATE: 20160624

DOCKET: C61484

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sonny Wassilyn

Appellant

Maija Martin, for the appellant

Brianne Bovell, for the respondent

Heard: June 24, 2016

On appeal from the dismissal entered by Justice M.A.
    Garson of the Superior Court of Justice, dated December 4, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of two counts of threatening.  The trial
    judge imposed a fine.  The Summary Conviction Appeal Court judge dismissed the
    appeal.  The appellant seeks leave to appeal from that dismissal.  Leave to
    appeal is granted sparingly.

[2]

The appellant argues that the proposed grounds of appeal, while not
    raising a question of law of significance to the administration of justice, do
    raise legal issues which show particularly strong grounds of appeal.

[3]

The grounds of appeal are the same as those raised in the Summary
    Conviction Appeal Court.  The Summary Conviction Appeal Court judge applied
    well settled legal principles to the specific arguments raised before him.  In
    our view, the reasons do not point to any strong ground of appeal.  To the contrary,
    the arguments are not strong.

[4]

Leave is refused.


COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Weese, 2016 ONCA 449

DATE: 20160609

DOCKET: C53551 & C56772

Watt, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Lee Weese

Appellant

Kyle Lee Weese, appellant in person

Enzo Rondinelli, duty counsel

Michael Bernstein, for the respondent

Heard: May 12, 2016

On appeal from the convictions entered on October 25,
    2010 by Justice Mary Lou Benotto of the Superior Court of Justice, sitting with
    a jury, and from the sentence imposed on March 31, 2011.

ENDORSEMENT

[1]

Kyle Weese was found guilty by a jury of second degree murder and four
    counts of aggravated assault. He was sentenced to life imprisonment with parole
    eligibility set at 22 years. He appeals against both conviction and sentence.

Background

[2]

The appellant was at the Duke of York pub in Toronto with his
    girlfriend. He got into an altercation with another man, Addy Reddick, after
    his girlfriend expressed annoyance that Reddick had touched her.

[3]

The appellant and Reddick were told to take their dispute outside and
    did so. Although words were exchanged, no fight occurred. Reddick returned to
    the bar but the appellant did not.

[4]

Shortly afterwards, a male with a semi-automatic handgun fired at least
    14 bullets outside the bar. Six people were hit, including the appellants
    brother. An innocent bystander, Bailey Zaveda, was hit six times and died of
    her injuries.

[5]

The appellant was charged with the murder of Ms. Zaveda and four counts
    of aggravated assault. He was not charged in the shooting of his brother. The
    sole issue in this case was the identity of the shooter.

[6]

The appellant testified at trial and denied being the shooter. His evidence
    was that he left the bar and was walking away when he heard the shooting. He
    went to a house, called a cab, and then went to his girlfriends home to
    complete a drug deal. The appellant testified he was driven to Lindsay that
    night in accordance with arrangements he had made earlier that day.

[7]

Four witnesses identified the appellant as the shooter. These included
    Nathan Reddick, Addy Reddicks uncle, and Dwight Marshall, Addy Reddicks
    cousin.

Conviction

[8]

Duty counsel raises four arguments against conviction on behalf of the
    appellant.

[9]

First, duty counsel submits that the trial judge bolstered Nathan
    Reddicks credibility in her charge to the jury by referring to the consistency
    of Reddicks testimony at the preliminary inquiry with his testimony at the
    trial. The trial judge stated:

So when you consider how much or little you believe and rely
    upon this evidence to decide the case, you take into account the fact that hes
    awaiting trial on another charge. However, you must also remember that he gave
    evidence at the Preliminary Inquiry before those charges in Peel even arose.
    And his evidence at the Preliminary Inquiry, we are told, was consistent with
    his evidence here.

[10]

Duty
    counsel submits that these remarks invited the jury to rely upon Nathan
    Reddicks testimony because it was consistent with his earlier testimony.
    Although prior
in
consistent statements are admissible in challenging the
    credibility of a witness, prior consistent statements are an irrelevant
    consideration and duty counsel submits that the trial judges remarks were a
    serious misdirection.

[11]

We
    disagree.

[12]

The
    trial judges remarks were made in the context of a defence suggestion that
    Nathan Reddicks evidence was fabricated to help his situation with the police
    concerning charges against him in Peel. The trial judge did no more than to
    point out that Reddicks evidence was consistent with statements he made at the
    preliminary inquiry, which occurred prior to the Peel charges.

[13]

Second,
    duty counsel submits that Detective Girouxs evidence constituted impermissible
    oath-helping. Two of the witnesses who testified to seeing the shooting, Dwight
    Marshall and Nathan Reddick, had lied to the police in saying that they did not
    know who Addy Reddick was. Subsequently they acknowledged that they did know
    him, but no action was taken against them.

[14]

The
    trial judge noted that the witnesses had lied and addressed Detective Girouxs
    actions as follows:

Detective Giroux testified that he had not been misled by the
    statement, because hed learned of Addy from other sources. Detective Giroux
    said they apologized, fully cooperated and made themselves available to the
    police. He determined  he, Detective Giroux  determined on these facts that
    it was not in the interests of justice to pursue the matter of the original lie
    under oath.

[15]

Duty
    counsel submits that the jury should have been instructed that they could not
    use Detective Girouxs evidence for the purpose of oath-helping.

[16]

We
    disagree.

[17]

The
    rule against oath-helping renders inadmissible evidence adduced solely for the
    purpose of proving that a witness is truthful:
R. v. Burns
, [1994] 1
    S.C.R. 656, at p. 667. In our view, the rule has no application here. Detective
    Giroux did not testify as to the honesty or veracity of either Marshall or
    Reddick. His evidence came in cross-examination, in explaining why neither
    Reddick nor Marshall was charged with obstruction of justice or perjury. This
    was not oath-helping. In any event, we are satisfied that the trial judge
    properly instructed the jury concerning its responsibility in assessing the
    credibility of the witnesses.

[18]

Two
    additional arguments in duty counsels factum were not the subject of oral
    argument. First, duty counsel submits that the trial judge failed to properly
    instruct the jury concerning the use they could make of evidence of post-offence
    conduct, citing this courts decision in
R. v. Hall
, 2010 ONCA 724, 263
    C.C.C. (3d) 5, leave to appeal to SCC refused, [2010] S.C.C.A. No. 499. Second,
    duty counsel submits that the trial judge erred in failing to alert the jury
    sufficiently to the dangers associated with eyewitness identification,
    especially from a witness who seemed confident about his identification.

[19]

We
    reject these submissions.

[20]

Hall
is concerned with the risk that jurors might too easily infer guilt from
    post-offence conduct. However, as set out in
R
.
v. White
, 2011
    SCC 13, [2011] 1 S.C.R. 433, at paras. 23-24, the risk discussed in
Hall
can be addressed by the trial judge informing the jury as to any other
    explanations for post-offence conduct, and instructing them to reserve final
    judgment about the meaning of the conduct until all of the evidence has been
    considered. That occurred here. Although the decision in
Hall
was
    released following the trial in this matter, we note that trial counsel (not
    Mr. Rondinelli) expressed no concerns about the trial judges charge, and in
    our view, post-offence conduct was not significant in establishing the
    appellants guilt in any event.

[21]

As
    for the eyewitness evidence, the trial judge carefully reviewed the evidence
    and cautioned the jury about the dangers of mistaken identification. A draft of
    her charge was vetted by trial counsel and no objection was made to her
    instructions.

[22]

Having
    reviewed the record in this matter, we conclude that there is no basis to find any
    error in the trial judges handling of the trial. The appeal against conviction
    must be dismissed.

Sentence

[23]

The trial judge had a discretionary power under s. 745.4 of the
Criminal Code
to increase the period of
    parole eligibility beyond the ten-year period, having regard to the character
    of the offender, the nature of the offence and the circumstances surrounding
    its commission, and the recommendations of the jury. The trial judges
    discretion had to be exercised
in accordance with s. 718.2(e) of the
Criminal
    Code
and the principles set out in
R. v. Gladue,
[1999] 1 S.C.R. 688.

[24]

Duty
    counsel makes two submissions on behalf of the appellant. First, he submits
    that the trial judge failed to give adequate weight to the appellants
    circumstances as an aboriginal offender in setting the minimum period of parole
    eligibility. Second, the trial judge failed to give adequate weight to the
    jurys recommendations regarding the minimum period of parole eligibility. Duty
    counsel submits that minimum parole eligibility period should have been set at
    16 years.

[25]

We
    disagree.

[26]

The
Gladue
principles do not apply in a mechanical fashion,
    nor do they require reductions in sentences for offences committed by
    aboriginal persons. On the contrary, as the Court noted in
Gladue
at
    para. 79, Generally, the more violent and serious the offence the more likely
    it is as a practical reality that the terms of imprisonment for aboriginals and
    non
‑
aboriginals will be close to each other or the same, even taking
    into account their different concepts of sentencing.

[27]

This was a very violent and serious crime and
    the trial judge was required to consider a number of factors, including the
    appellants circumstances as an aboriginal offender, in crafting the
    appropriate sentence.

[28]

We are satisfied that she did so. The trial
    judge clearly understood the appellants difficult personal circumstances,
    which included physical abuse, drug abuse, and led to a life of crime. She did
    not make any of the mistakes identified in
R. v. Ipeelee
, 2012 SCC 13,
    [2012] 1 S.C.R. 433, and in particular did not require the appellant to establish
    a causal link between his circumstances and the offences he committed. There is
    no basis to interfere with her conclusion.

[29]

As for the second submission
, the trial judge did not fail to
    give adequate weight to the jurys recommendations regarding the minimum period
    of parole eligibility. The jurys recommendations ranged from 10 to 25 years,
    with five jurors making no recommendation. The trial judge was simply required
    to consider the jurys recommendations as one of the relevant factors, and it
    is clear that she did so.

[30]

The
    fact that she set the parole eligibility period at the higher range of the
    jurors recommendations is of no moment. As the Supreme Court held in
R. v. Shropshire
, [1995] 4 S.C.R. 227,
    at para. 46, [a] variation in the sentence should only be made if the court of
    appeal is convinced it is not fit. That is to say, that it has found the
    sentence to be clearly unreasonable.

[31]

The
    circumstances of this case can only be described as egregious. The appellant
    opened fire with a semi-automatic weapon outside a bar. Six people were injured,
    including the appellants brother, and an innocent bystander was killed. The
    appellant continued shooting even after being informed that he had shot Ms.
    Zaveda. He displayed a wanton disregard for human life.

[32]

The
    appellant has a lengthy record that includes violence and a previous shooting.
    That, coupled with the trial judges finding that the appellant showed no
    possibility of rehabilitation, a complete disregard for court orders and poses
    a significant risk to the safety of the public, amply justifies her decision
    to impose a 22-year minimum parole period. The trial judge made no errors and
    there is no basis to interfere with her decision.

Disposition

[33]

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

David
    Watt J.A.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zhang, 2016 ONCA 473

DATE: 20160615

DOCKET: C60773 & C60774

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yong-Sheng Zhang and

Alltheway Trucking Inc.

Appellants

Vincenzo Rondinelli, for the appellant
    Zhang

Joseph Di Luca, for the appellant Alltheway Trucking
    Inc.

Demetrius Kappos and Paul Gonsalves, for the respondent

Heard:  May 31, 2016

On appeal from the decision of Justice Gregory J. Verbeem of
    the Superior Court of Justice, dated June 25, 2015, allowing in part the
    appeals from the convictions entered on September 15, 2013 and the sentences
    entered on January 16, 2014 by Justice of the Peace Maureen Ryan-Brode of the
    Ontario Court of Justice, with reasons reported at 2015 ONSC 4128.

ENDORSEMENT

[1]

This is an application for leave and, if leave is granted, an appeal
    from the decision of Verbeem J. sitting as a summary conviction appeal court,
    with reasons reported at 2015 ONSC 4128, allowing in part the appeals from the
    convictions and sentences entered on September 15, 2013 and January 16, 2014,
    respectively, by Justice of the Peace Maureen Ryan-Brode of the Ontario Court of
    Justice.

FACTS

[2]

On two separate occasions, a tractor trailer driven by the appellant Zhang
    entered Canada with shipments containing live invasive fish. Zhang and the
    trucking company, Alltheway Trucking Inc. (Alltheway), were each charged with
    two counts of possessing invasive fish without a licence contrary to s. 6(1) of
    the
Ontario Fishery Regulations
, 2007
, SOR/2007-237 (the
    Regulation), a strict liability offence under s. 78 of the
Fisheries Act
,
    R.S.C. 1985, c. F-14 (the Act). The potential harm that could result from the
    importation of these invasive species  as the record demonstrates  is
    enormous.

[3]

The Justice of the Peace convicted both appellants.  She found the
    identity of the corporate defendant was proven beyond a reasonable doubt and
    that the evidence showed, on a balance, that Zhang did not meet the statutory
    due diligence defence under s. 78.6 of the Act. She imposed fines of $2000 and
    $3000 in respect of Zhang and $30,000 and $40,000 in respect of Alltheway.

[4]

The summary conviction appeal judge (the appeal judge) allowed
    Alltheways appeal from conviction and ordered a new trial. He found that the
    Justice of the Peace erred in relying on the presence of counsel for Alltheway
    as evidence of identity. The appeal judge also allowed Zhangs appeal from
    sentence and varied the fine for the second offence to $2000 because the
    sentence below violated the Coke principle. He would have allowed Alltheways
    sentence appeal on the same basis.

[5]

Both appellants seek leave of this court to appeal the decision of the
    appeal judge.

ALLTHEWAY APPEAL

[6]

Alltheway submits that the appeal judge erred in failing to find that
    the decision of the Justice of the Peace constituted an unreasonable verdict.
    It argues that, rather than order a new trial, he ought to have set aside the
    conviction entered by the Justice of the Peace and ordered that an acquittal be
    entered in its place.

[7]

In a nutshell, Alltheways argument is that the appeal judge ought to
    have found that the evidence before the Justice of the Peace was insufficient
    to prove its identity beyond a reasonable doubt. Alltheway argues that the
    appeal judge committed an error of law in failing to consider and analyze the
    evidence through the lens of judicial experience as set out in
R. v.
    Biniaris
, 2000 SCC 15,
[2000]
    1 S.C.R. 381. Had he done so, he would have been required to find that the
    evidence in effect came up short. Instead, the appeal judge found that the
    Justice of the Peace had erred in law in considering the presence of counsel as
    a factor in the identification and ordered a new trial.

[8]

We do not accept this submission. In our view, read as a whole, the
    reasons of the appeal judge make it clear that he did not consider the verdict
    of the Justice of the Peace to be an unreasonable one.

[9]

He considered the evidence in relation to identity from paras. 65
    through 78 of his reasons. He concluded, at para. 78, that he was satisfied
    that there was evidence before the Justice of the Peace capable of supporting
    his finding that the Crown established the identity of the corporate Appellant.
    Although the appeal judge did not explicitly state that he rejected Alltheways
    argument that the verdict of the Justice of the Peace was unreasonable, it is
    implicit that he did so. We are not persuaded that he erred.

[10]

And while the issue of whether a verdict is unreasonable is a question
    of law, the real question posed by this appeal relates to the factual findings
    made by the trial justice and the sufficiency of the evidence in relation to
    identity.

[11]

The law in relation to whether a verdict is unreasonable is well-settled.
    In the context here, there is no issue raised of general importance beyond the
    particular facts of this case.

[12]

In the circumstances, we would deny leave to appeal.

ZHANG APPEAL

[13]

The appellant Zhang also seeks leave to appeal and submits that the
    appeal judge and the Justice of the Peace erred in assessing the evidence of
    due diligence under s. 78.6 of the Act.

[14]

We do not accept this submission. The reasons of the appeal judge and the
    Justice of the Peace demonstrate that they understood the test and applied it
    contextually.

[15]

The essence of the issue this appellant raises relates to the factual
    findings made by the Justice of the Peace after assessing the evidence before
    her in relation to the due diligence defence.

[16]

In our view, the issue raised in this context is one of mixed fact and
    law and, in any event, there is nothing raised here that is of concern beyond
    these parties.

[17]

We would deny leave to appeal.

J.
    MacFarland J.A.

K.
    van Rensburg J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R & G Draper Farms (Keswick) Ltd. v. Nature's
    Finest Produce Ltd., 2016 ONCA 481

DATE: 20160616

DOCKET: C60875

Blair, MacFarland and Lauwers JJ.A.

BETWEEN

R & G Draper Farms (Keswick) Ltd
.

Plaintiff

(Respondent/Appellant
    by way of cross-appeal)

and

Natures Finest Produce Ltd., Kejay Farms, Kejay

Investments Inc.
, Jason Raymond Stallaert,

Kevin
    Cornelius Stallaert, Campbell Soup Company and

Campbell
    Soup Company Canada

Defendants

(
Appellants/Respondents
    by way of cross-appeal
)

BETWEEN

Natures Finest Produce Ltd., Kejay
    Farms

Kejay Investments Inc
., Jason
    Raymond Stallaert

Kevin Cornelius Stallaert

Plaintiffs by
    Counterclaim

(
Appellants/Respondents
    by way of cross-appeal
)

and

R
    & G Draper Farms (Keswick) Ltd

Defendant by
    Counterclaim

(Respondent/Appellant
    by way of cross-appeal)

and

2077583 Ontario Ltd., 1318910 Ontario Ltd., Daniel Ubald
    Bigras

1099039 Ontario Ltd., 2123979 Ontario Ltd., C.H. Robinson,

A.C. Schmieding Produce Co. Inc. and

Nicole Shannon Marie Verhey-Stallaert

Third Parties

Raymond G. Colautti and Anita Landry, for the appellants/respondents
    by way of cross-appeal

Morris Manning, Q.C., for the respondent/appellant by
    way of cross-appeal

Heard:  May 9, 2016

On appeal from the judgment of Justice Mark L. Edwards of
    the Superior Court of Justice, dated July 16, 2016, with reasons reported at
    2015 ONSC 4620.

ENDORSEMENT

[1]

The appellants,
Natures
    Finest Produce Ltd., Kejay Farms and Kejay Investments Inc
. (
Natures Finest)
appeal
    from the motion judges summary judgment. He found Natures Finest and R &
    G Draper Farms (Keswick) Ltd. (Draper Farms) entered into a settlement under
    which Natures Finest was to pay Draper Farms about $189,000 for a load of
    carrots. This represented a reduction from the original purchase price of
    $231,000 to account for the fact that some of the carrots were bad. The
    judgment provides, in para. 1:

THIS COURT ORDERS AND ADJUDGES that the Plaintiffs Motion for
    Summary Judgment as it relates to the settlement is granted against Natures
    Finest Produce Ltd. Kejay Farms and Kejay Investments Inc. in the amount of
    $168,757.32.

[2]

There are two interrelated bases for the appeal. First, Natures Finest
    argues that while the parties agreed on the full amount of the settlement at
    about $189,000, they had not agreed on whether the rate of payment was to be
    $20,000 per month, as Natures Finest proposed, or $40,000 per month, as Draper
    Farms proposed. Natures Finest asserts that this difference is fatal to the
    existence of a settlement, because there was no consensus ad idem on a
    fundamental term.

[3]

Second, in reasoning that the settlement required the payment of $40,000
    a month, the motion judge relied in part on the payment of two cheques by
    Natures Finest to Draper Farms in the amount of about $20,000 that he
    initially inferred were sent following the settlement. After the release of his
    judgment, Natures Finest brought a motion for reconsideration in conjunction
    with a motion to introduce fresh evidence. The fresh evidence tendered by
    Natures Finest on the motion to reconsider showed that the cheques were sent before,
    and not after, the last exchange on the settlement specifying $40,000 per
    month. However, the motion judge dismissed the fresh evidence and the
    reconsideration motions, for reasons reported at 2015 ONSC 6006, on the
    following basis, at para. 27:

Even if I were to relax the due diligence requirement for the
    receipt of the fresh evidence, sought to be adduced by the defendants, in my
    view, it would have made no difference to the ultimate result. As I have
    already noted, once the plaintiff had responded to the defendant's email of
    April 18 with a suggestion of an increased monthly payment of $40,000, no
    response was forthcoming from the defendants, either repudiating this revised
    term of settlement or a demand that the $20,845.68 be returned. While my
    original Reasons may have referred to the absence of any stop payment on the
    cheques, the same analysis in my view holds true with respect to the fact that
    the defendants failed to demand the $20,845.68 be repaid by the plaintiff.

[4]

In his summary judgment decision, the motion judge relied on
Shoom
    v. Acktion Corp
.,
[2003] O.J. No. 5204 (C.A.),
for the
    proposition that the most fundamental term of the settlement between the
    parties is the principal amount, and that it was open to the court to infer
    agreement on the rate of payment from the behaviour of the parties after the
    exchange of emails related to the settlement. He stated, at para. 33:

Ohri's responding email of April 19, 2011 leaves the court with
    no doubt that the most fundamental term of the settlement between the parties
    was that there was an agreement with respect to the principle amount of
    $189,603.00. Ohri's responding email in no way calls that figure into dispute.
    The only issue raised in Ohri's email to Taylor was the terms of payment, i.e.
    $20,000.00 per month versus $40,000.00 per month. Ohri's email of April 19,
    2011 was never responded to by Taylor. Using the same line of analysis that the
    Court of Appeal did in
Shoom
, it is not unreasonable for this court to
    come to the conclusion that the silence on the part of Taylor to the proposed
    terms of $40,000.00 per month implicitly acknowledges an agreement on that
    amount and it is not, in my view, unfair to infer such an agreement.

[5]

Natures Finest has not demonstrated that the motion judge erred
    in relying on
Shoom
in concluding that an implied agreement had been
    reached on the terms of repayment, given his factual findings.

[6]

Draper Farms, the respondent/appellant by cross-appeal, seeks to appeal
    the motion judges failure to dismiss Natures Finests counterclaim for
    damages for the bad carrots. In his reasons for dismissing the reconsideration
    motion, the motion judge said, at paras. 30 and 31:

When the motion was originally heard on
    June 17, 2015, I engaged counsel in discussion as to how best to deal with all
    of the various motions that were before me. I suggested to counsel, that
    dealing with the question of whether or not there was a settlement could
    ultimately assist the parties with respect to the outcome concerning the
    remaining motions, including the viability of the defendants' counterclaim. It
    was conceded by counsel for the defendants during the course of those
    discussions that if I decided the question of settlement in favour of the plaintiffs
    that this
likely
would pose significant difficulties for the defendants with
    respect to their counterclaim. I remain of the view that having now found in
    favour of the plaintiff on the question of whether there was a settlement of
    the debt owed by the defendant to the plaintiff that the most likely outcome
    with respect to the defendants' counterclaim would be that the counterclaim is
    subsumed within that settlement.

While I may be of that view, at this stage of the proceedings,
    it would, in my opinion, be unfair not to allow the defendants to proceed with
    their counterclaim, while at the same time allowing the plaintiffs to take the
    position that the determination of the settlement incorporated implicit terms
    that there would be a mutual release of all potential claims between the
    parties as they existed as of mid-April 2011. (Emphasis in original.)

[7]

Draper Farms argues that the motion judge erred in law in failing to
    dismiss the counterclaim as part of the summary judgment motion, relying on
    this courts decision in
Bogue v. Bogue
,
[1999] O.J. No. 4310, 46 O.R. (3d) 1. There, Rosenberg
    J.A. said, at para. 13:

In my view, there was evidence upon which the motions judge was
    entitled to find that a final settlement of all the issues had been reached on
    December 10th and that there was an agreement in respect to the essential
    terms. While there was no express discussion about a release, the settlement of
    the action implied an obligation to furnish releases:
Fieguth v. Acklands
    Ltd.
(1989), 59 D.L.R. (4th) 114 (B.C.C.A.). At the end of those
    negotiations, the parties had bound themselves to the settlement.

[8]

Natures Finest argues that this court has no jurisdiction over the
    cross-appeal, because the order that Draper Farms seeks to appeal is
    interlocutory, and accordingly the appeal lies to the Divisional Court under s.
    19(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

[9]

We would not give effect to this argument.

[10]

The judgment under appeal grants Draper Farms motion for summary
    judgment as it relates to the settlement. This is a final order. The difficulty
    in this case is caused by the motion judges reconsideration reasons, which
    were released after the defendants filed their notice of appeal in this court;
    these reasons are inconsistent with the wording of the motion judges formal
    judgment.

[11]

In his supplementary reasons, the motion judge found that it would be
    unfair not to allow the defendants to proceed with their counterclaim. This
    subsequent ruling is inconsistent with his original ruling granting summary
    judgment in favour of the plaintiff on the basis of an agreed upon settlement
    of the parties claims.

[12]

We observe that in their original notice of appeal, one of the appellants
    grounds of appeal related to the dismissal of their counterclaim. They struck
    this ground from their notice of appeal after the motion judge released his
    supplementary reasons. The respondent then moved before Pepall J.A. for an
    extension of time to file a cross-appeal in light of the amendments to the
    notice of appeal.

[13]

In her endorsement granting the extension, Pepall J.A. noted, at para.
    12: the panel may ultimately conclude that the issues raised by the moving
    party do not require a cross-appeal in order to be advanced in this court. This
    is the approach we now take.

[14]

In keeping with the principle that an appeal is from the order and not the
    reasons, there was no need for Draper Farms to cross-appeal from a judgment in
    its favour. This principle is reflected in r. 61.07(1), which states:

61.07 (1) A respondent who,

(a) seeks to set aside or vary the order appealed from; or

(b) will seek, if the appeal is allowed in whole or in part,
    other relief or a different disposition than the order appealed from,

shall, within fifteen days after service of the notice of
    appeal, serve and file a notice of cross-appeal []

[15]

The order under appeal granted the relief that the respondent, as plaintiff,
    was seeking. The respondent need not cross-appeal from that order in order for
    this court to have jurisdiction to review the motion judges subsequent reasons
    permitting the defendants counterclaim to proceed.

[16]

Turning to the substance of the issues raised on the cross-appeal, we
    agree with the respondent that the motion judge ought to have given effect to
    this courts reasoning in
Bogue v. Bogue
. He gave no reasons for
    stating that it would: be unfair not to allow the defendants to proceed with
    their counterclaim. Given the trial judges finding that the parties had
    reached a settlement of the action, he ought to have found an implied
    obligation on the part of the appellants to provide a release of their counterclaim.

[17]

For these reasons, we dismiss the appeal from the motion judges summary
    judgment in the respondents favour. Accordingly, there will be no further
    proceedings on the counterclaim.

[18]

If the parties cannot agree on costs of the appeal and of the
    proceedings in the court below, they may provide this court with written
    submissions no more than 10 pages in length, within 10 days of the release of
    these reasons.

R. A. Blair J.A.

J.
    MacFarland J.A.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Raba v. Wronecki, 2016 ONCA 457

DATE: 20160610

DOCKET: C59978

Feldman, Rouleau and Huscroft JJ.A.

BETWEEN

Tomasz Raba

Plaintiff (Appellant)

and

Karol Wronecki, and Landlord and Tenant Board,
    and Unnamed Co-Conspirators Employed by and Agents for Landlord and Tenant
    Board, Hereinafter Referred to as Co-Conspirator 1, and C-Conspirator 2, and
    Co-Conspirators N

Defendants (Respondents)

AND BETWEEN

Tomasz Raba

Plaintiff (Appellant)

and

Egya Ndayinanse Sangmuah
    and Landlord and Tenant Board, and Unnamed Co-Conspirators Employed by and
    Agents for Landlord and Tenant Board, Hereinafter Referred to as Co-Conspirator
    1, and C-Conspirator 2, and Co-Conspirators N

Defendants (Respondents)

Tomasz Raba, acting in person

Jon Bradbury, for the respondents

Heard and released orally: May 26, 2016

On appeal from the orders of Justice Perell of the Superior
    Court of Justice, dated January 2, 2015.

ENDORSEMENT

[1]

The appellant appeals two orders dated January 2, 2015 striking out two
    statements of claim against the Landlord and Tenant Board and related
    individuals without leave to amend.

[2]

The three grounds of appeal set out by the appellant in his written submissions
    are:

1. That findings made by the motion
    judge were in error;

2. That the
    motion judge had no jurisdiction to make the order he did; and

3. The motion
    judge had a reasonable apprehension of bias.

[3]

In our view the motion judge made no errors in his decisions, nor was
    there any basis for an allegation of reasonable apprehension of bias.

[4]

The appeal is dismissed.  In the circumstances there will be no costs.

K.
    Feldman J.A.

Paul
    Rouleau J.A.

"Grant
    Huscroft J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Radmanish v. Sulaimankhail, 2016 ONCA 432

DATE: 20160602

DOCKET: C59480

Cronk, Blair and Pardu JJ.A.

BETWEEN

Karim Radmanish

Plaintiff (Respondent)

and

Gulbadin
    Sulaimankhail, Khan Sulaimankhail and
Jumadin

Sulaimankhai
l

Defendants (
Appellant
)

Marvin J. Huberman, for the appellant

Peter A. Grunwald, for the respondent

Heard: May 27, 2016

On appeal from the judgment of Justice Stephen E. Firestone
    of the Superior Court of Justice, dated September 19, 2014, with reasons
    reported at 2014 ONSC 4373.

ENDORSEMENT

[1]

The respondent, Karim Radmanish, worked in a butcher
    shop with the appellant, Jumadin Sulaimankhail, and Jumadins two brothers. On
    March 3, 2004, the respondent was assaulted by them. At trial, the appellant
    admitted that he and his brother, Gulbadin, had assaulted the respondent, but
    argued that damages should be reduced because the respondent provoked the
    assault. On appeal, despite the admission of fault at trial, the appellant says
    that the judgment should be set aside or, in the alternative, there should be a
    new trial.

[2]

The appellant submits that the trial judge made
    the following errors:

·

he should not have made favorable credibility
    findings in relation to the respondent and a witness, Kamran Dar, because there
    were inconsistencies and contradictions in their testimonies, and he should not
    have rejected the appellants testimony;

·

he should have found that the respondent
    provoked the assault; and

·

he should not have found that the appellant and Gulbadin
    were joint tortfeasors.

[3]

We reject each of these grounds of appeal.

A.

THE EVIDENCE AT TRIAL

(1)

The First Incident

[4]

The respondent testified that he was having lunch when the appellant
    asked him to go to another store to do some work. The respondent asked if he
    could finish his lunch first, to which the appellant responded, Leave your
    lunch  Im telling you lets go. The respondent went to call Khan, the owner
    of the shop and the appellants other brother, to see if it was alright to
    leave, as Khan had made him responsible for taking care of the meat section.
    The respondent had the phone in his hand when the appellant allegedly said,
    Im the boss of the store, took the receiver, and hit the respondent on the
    top of the head with it. The respondent said he was bleeding and dizzy, and
    remained in the lunchroom for three hours.

[5]

The respondent called Khan to tell him about the incident. Khan arrived
    at the shop at about 8:00 p.m. and told the respondent that they would talk
    when the store closed at 10:00 p.m.

[6]

Another employee, Kamran Dar, testified that he was working in the store
    that day. He said that, after the first incident, which he did not witness, the
    respondent worked the rest of the afternoon.

[7]

The appellants account was very different. He testified that he asked
    the respondent to shelve groceries, to which the respondent said, Youre not
    my boss and Im not listening to you. The respondent wanted to call Khan. The
    appellant told the respondent that, since he was not listening, he was fired.
    This angered the respondent, who then pushed the appellant and they began
    fighting. The appellant denied hitting the respondent with the phone. He said
    he pushed the respondent back, causing him to hit his head on a shelf. After
    the fight, the respondent spoke with Khan and then went home.

(2)

The Second Incident

[8]

The respondent said that while he was mopping at about 9:30 p.m., the
    appellant asked him to come outside to talk, with an apologetic demeanour. When
    he got outside, the appellant was there with his brother, Gulbadin, and another
    man. The appellant said, Kill him, at which time Gulbadin and the other man
    began beating the respondent with a stick. The respondent started screaming for
    help. Khan came outside with Kamran and two other employees. Khan also started
    punching the respondent, while the appellant and Gulbadin held him. Kamran and
    another employee separated them and brought the respondent inside.

[9]

Kamran testified that he observed the appellant take the respondent out
    the stores back door. He heard yelling and went outside with two other
    employees. He saw the appellant and Gulbadin punching and kicking the
    respondent. The respondent was trying to duck. Kamran said he did not remember
    observing anyone using a weapon to hit the respondent.

[10]

The
    appellant again had a different version of events. He said that while he and
    Gulbadin were cleaning the store, the respondent and three other people,
    including the respondents brother, grabbed him by the collar, pulled him
    outside, and began attacking him.

(3)

The Third Incident

[11]

The
    respondent testified that after he was brought inside, Gulbadin came in and
    struck him with a knife on his right temple. During cross-examination, he said
    it was the appellant who attacked him, and that he had previously been confused.
    The respondent testified that Khan then came in and took him to the basement.
    Khan had calmed down. He asked the respondent not to call the police and
    threatened to harm him and his family if he told anyone about what happened.

[12]

Kamran
    testified that after the respondent was brought back into the store, Gulbadin
    ran in the back door from outside and hit the respondent in the back with a
    screwdriver.

(4)

Aftermath

[13]

Three
    days later, the respondent gave a statement to the police. The police took
    photographs of his entire body, which were entered as exhibits at trial. The
    respondent sustained numerous physical and psychological injuries from the
    incidents, which have impacted his work as a butcher.

[14]

In
    a criminal proceeding, the appellant and Gulbadin pleaded guilty to assaulting
    the respondent.

B.

TRIAL JUDGES ANALYSIS

[15]

The
    trial judge found that the respondent was a credible witness and that he was
    honest and straightforward, although sometimes confused. He also accepted Kamrans
    evidence and found he was an impartial witness who corroborated the respondents
    account of the events.

[16]

The
    trial judge further found that what Kamran testified he observed  the
    appellant and his brother beating the respondent, who was trying to duck in
    order to protect himself  were not the actions of a person who started and was
    actively participating in a fight. The trial judge therefore held that the
    defence of provocation could not be relied upon to mitigate or reduce damages.

[17]

The
    trial judge also concluded that the appellant and his brother were liable as
    joint tortfeasors. Although he found that it was Gulbadin who struck the
    respondent in the face with a knife or screwdriver in the third attack, that
    incident occurred shortly after the second attack, in which both brothers
    participated and acted in concert. The trial judge therefore held the third
    attack was in furtherance of a common plan between them, the purpose of which
    was to beat up the respondent.

C.

CONCLUSIONS ON APPEAL

[18]

We
    see no basis in the record to support the appellants submission that the trial
    judges assessments of credibility were flawed. The trial judges appreciation
    of the evidence attracts deference from a reviewing court. He was not required
    to address every inconsistency in the witnesses evidence. His reasons confirm
    that he considered and rejected the appellants and his brothers versions of
    events. His factual findings were reasonably open to him on the evidence. The
    appellant essentially asks this court to retry the case, which is not our
    function.

[19]

Nor
    did the trial judge err in his treatment of provocation. He allowed the
    appellant to adduce evidence of provocation because it could have been relevant
    to the quantum of damages. However, he found as a fact that the respondent did
    nothing to provoke the assaults. He based this finding on evidence he found
    credible, particularly that of Kamran, who witnessed the second incident.

[20]

On
    the same basis, it was open to the trial judge to conclude that the appellant
    and his brother were joint tortfeasors. Kamran described a joint assault by the
    brothers upon the respondent during the second incident, and the third incident
    occurred shortly afterwards.

[21]

The
    trial judge indicated:

Regarding the second attack, it is clear that both Gulbadin and
    Jumadin acted in concert and participated in it. They are therefore joint
    tortfeasors and are both responsible for the damages sustained.

I find that Gulbadin alone struck Karim in the face with a
    knife or screwdriver in the last attack. This however occurred immediately
    following the second attack. I therefore find that this third attack was in
    furtherance of the common plan, in which both Gulbadin and Jumadin participated,
    the common purpose of which was to beat up and cause harm to Karim.

[22]

The
    appellant candidly acknowledged in oral argument that if these findings could be
    sustained on the evidence, a finding that the appellant and his brother were
    joint tortfeasors followed. In our view, there is no basis to disturb the trial
    judges findings of fact.

[23]

The
    appellant did not pursue the other grounds of appeal advanced in his factum.

[24]

Accordingly,
    for these reasons, the appeal is dismissed, with costs payable to the
    respondent in the agreed sum of $11,300, all inclusive.

E.A. Cronk J.A.

R.A. Blair J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ridel v. e3m Investments Inc., 2016 ONCA
    522

DATE: 20160630

DOCKET: C61568

Rouleau, van Rensburg and Benotto JJ.A.

In the Matter of the
    Bankruptcy of e3m Investments Inc.

BETWEEN

Jean-Marc Ridel, Nadine Suzanne Josephine Ridel
    and
Marc H. Ridel

Applicants (Appellants)

and

Schwartz, Levitsky, Feldman Inc. - Trustee

Respondent (Respondent)

Philip Anisman, for the appellants

Martin Greenglass, for the respondent

Heard: June 20, 2016

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated November 12, 2015.

ENDORSEMENT

[1]

The appellants are judgment creditors of e3m
    Investments Inc. (e3m), which is bankrupt. They assert a trust claim over
    certain funds held in the name of the bankrupt in an Accumulating Account on
    the direction of the Ontario Securities Commission (the OSC). The parties
    agreed that the matter would proceed in court through the disallowance of the
    claim by e3ms Trustee in Bankruptcy, and an appeal to a judge of the Superior
    Court (referred to here as the motion judge) under s. 81 of the
Bankruptcy and Insolvency Act
, R.S.C. 1985 c. B-3,
(the BIA). The dismissal of that appeal is the subject of the
    appeal to this court.

[2]

For the reasons that follow the appeal is
    dismissed.

[3]

e3m was an investment dealer registered with the
    OSC and a member of the Investment Industry Regulatory Organization of Canada
    (IIROC). The appellants were former clients of e3m. In April 2013 they obtained
    a judgment against e3m of approximately $750,000, including costs and interest
    (the Ridel Judgment). e3m appealed.

[4]

e3m treated the Ridel Judgment as a contingent
    liability, which resulted in a deficiency of $550,000 in its estimated
    regulatory capital.

[5]

As a result of the judgment, and pending the
    hearing of its appeal, e3m, in July 2013, agreed to sell its client accounts to
    Caldwell Ltd. (Caldwell), with the consideration payable in instalments. The
    transaction required the consent of the OSC and an exemption to permit Robert
    Goldberg, e3ms president, to be employed and registered with both Caldwell and
    e3m.

[6]

The OSC issued terms and conditions on e3ms
    registration when it granted the exemption (the OSC Decision). The terms and
    conditions, which were negotiated between legal counsel for the OSC and e3m
    (and without any involvement of the appellants), required e3m to direct
    Caldwell to pay all proceeds from its purchase of e3ms assets, which were estimated
    at the time to be $750,000, into e3ms Accumulating Account at Caldwell. e3m
    also agreed to transfer $100,000 from its operating account into the
    Accumulating Account.

[7]

The OSC Decision terms and conditions referred
    to e3ms representation that it would accumulate and maintain sufficient assets
    to satisfy the Ridel Judgment, and that no distribution of these assets up to
    the amount of the judgment would be made prior to the satisfaction of that
    judgment except by consent or approval from the OSC and IIROC. The terms and
    conditions became effective on the closing of the sale of e3ms assets to
    Caldwell in September 2013.

[8]

In November 2014, e3m lost its appeal of the
    Ridel Judgment. The appellants were successful in their cross-appeal and the
    amount of the judgment was increased. In February 2015, e3m made an assignment
    in bankruptcy. In its statement of affairs, e3m recorded cash of $546,837,
    substantially all of which was in the Accumulating Account.

[9]

The motion judge considered whether the funds in
    the Accumulating Account were trust funds which belonged to the appellants,
    rather than monies of e3m divisible among the bankrupts creditors (including
    the appellants).

[10]

The motion judge was satisfied that the
    Accumulating Account met two of the required three certainties for a trust.
    There was certainty of subject matter  the proceeds of sale of e3ms customer
    accounts and $100,000 contributed by e3m were transferred into the Accumulating
    Account and segregated. There was certainty of the object of the trust  to
    preserve assets of e3m for the satisfaction of the appellants judgment.

[11]

The motion judge found, however, that there was
    no certainty of intention that the funds were to be held in trust for the
    appellants. It was the appellants onus to prove such intention. The motion
    judge concluded that neither e3m nor the OSC intended to create a trust.
    Although the funds were held in a single-purpose, separate account, the OSC
    terms and conditions were in the nature of a
status quo
preservation order to ensure that the funds were not dissipated
    pending e3ms appeal of the judgment. In reaching this conclusion the motion
    judge noted that the terms and conditions and other contemporaneous documents
    did not refer expressly to a trust, and that the OSCs and IIROCs authority
    under the terms and conditions to consent to specific expenditures was not
    consistent with the intention to create a trust.

[12]

The appellants submit that the motion judge made
    two fundamental errors that dictated the outcome of the case. First, in
    focusing on the OSCs role in creating the trust, he concluded that the OSC
    Decision and the terms and conditions were put in place in the face of a
    reasonable, if not high, likelihood that e3m was or would be insolvent if the
    appeal were unsuccessful. The appellants say that e3m was not in fact insolvent
    and had given assurances about its solvency, which the OSC relied on in
    granting the exemption. Second, having found that e3m was facing a situation of
    insolvency, the motion judge expressed doubt about the jurisdiction of the OSC to
    create a preference for certain judgment creditors of a registrant over the
    interests of other creditors in a bankruptcy. The appellants say that this was
    an improper collateral attack on the OSC Decision. The appellants also contend
    that e3ms bankruptcy occurred many months after the OSC Decision, and that
    requiring money to be put aside for the appellants would not, in the
    circumstances, have constituted a preference.

[13]

In our view, the appellants make too much of the
    motion judges expression of concern about the scope of the OSCs authority.
    The onus was on the appellants to establish that the monies in the Accumulating
    Account, an account held by Caldwell in the name of e3m, were held in trust for
    the appellants.

[14]

While the motion judge expressed doubt about the
    OSCs jurisdiction to require terms and conditions that would have the effect
    of preferring the interests of the appellants over other creditors of e3m, his
    decision does not rest on this concern, or his view that e3m was likely
    insolvent. Rather, he considered a number of factors in concluding that the necessary
    intention had not been proven.

[15]

The motion judge found that the OSCs own
    position on the issue was ambiguous. There was nothing in the documentation
    drawn by counsel for any of the parties that referred to the Accumulating
    Account as a trust account. After issue had been joined, the OSC took the
    position that the Accumulating Account was to be funded and maintained for the
    benefit of the judgment creditors, but did not take the position that it was a
    trust fund. He noted that the judgment creditors, for whose benefit the trust
    was allegedly established, were unaware of the arrangements that had been put
    in place. The motion judge referred to the wording of the terms and conditions
    in the OSC Direction: there was an obligation to accumulate and maintain
    assets to satisfy the Ridel Judgment but the ultimate entitlement to the funds
    was not addressed. And, while the terms and conditions required that no
    distribution of assets from the Accumulating Account would be made prior to
    the satisfaction of the judgment without the consent or approval of the OSC and
    IIROC, in fact the OSC and IIROC consented to a distribution from the account
    to fund the preparation and mailing of income tax slips to 330 e3m clients. The
    ability of the OSC and IIROC to permit the funds to be used for essentially any
    purpose they might deem appropriate within their regulatory mandate was
    fundamentally inconsistent with an intention to create a trust in favour of the
    appellants.

[16]

Contrary to the appellants submission, there
    was no error in principle in the motion judges consideration of these factors.
    His conclusion that the necessary intention to create a trust had not been
    established, was open to the motion judge, and is unassailable. He did not base
    his decision on any conclusion that the OSC would have been acting outside its
    authority in requiring a trust or on the fact that a trust would have the
    effect of preferring the appellants over other creditors of e3m at a time of
    insolvency. Rather, he examined the evidence as to intention and concluded that
    it had not been made out.

[17]

The appeal is accordingly dismissed. Costs to
    the respondent in the sum of $17,000, inclusive of disbursements and applicable
    taxes.

Paul Rouleau J.A.

K. van Rensburg J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: S & J Gareri Trucking Ltd. v. Onyx Corporation
    , 2016 ONCA 505 DATE: 20160624

DOCKET: C59373

Cronk, Blair and MacFarland JJ.A.

BETWEEN

S & J Gareri Trucking Ltd.

Plaintiff (Respondent)

and

Onyx Corporation

Defendant (Appellant)

Kyle Armagon, for the appellant

Ian Latimer, for the respondent

Heard and released orally: June 17, 2016

On appeal from the judgment of Justice Graeme Mew of the Superior
    Court of Justice, dated August 20, 2014.

ENDORSEMENT

[1]

The appellant, Onyx Corporation, and the respondent, S & J Gareri
    Trucking Ltd. are in the business of providing snow removal services to
    municipalities. Together with a third company, Harlow Contracting Inc., they
    competed for a contract with the City of Mississauga.

[2]

Onyx was the successful bidder and entered into a five-season contract
    with the City. Its bidder deposit of $75,002.81  representing 1% of the price
    it would receive over the five years  was retained by the City as a
    performance bond for the duration of the contract.

[3]

The contract called for twenty specialized snow-removal trucks; however,
    Onyx did not have that many trucks at the time. It therefore entered into
    subcontracts with Gareri and Harlow to supply two and five trucks,
    respectively. Gareri and Harlow each provided Onyx with a deposit in an amount
    corresponding to their proportionate share of the Onyx deposit for Onyxs fixed
    term of five seasons.

[4]

The subcontracts were made orally between the principals of the
    corporations and remained entirely oral because Onyx refused to commit them to
    writing. The primary issue at trial and on appeal is the interpretation of the
    oral subcontracts. More specifically, the issue is whether the parties agreed
    to a five-season term (the duration of the main contract) or to a
    season-by-season term subject to rights of cancellation.

[5]

Onyx terminated the subcontracts after the first season because it had
    acquired more trucks of its own. Gareri and Harlow sued in separate actions for
    wrongful termination of the subcontracts, and the actions were tried together.
    The trial judge found that the subcontracts were for a five-season term, that
    Onyx had wrongfully terminated them, and that the plaintiffs were entitled to
    damages based on the revenues they could reasonably have expected to have
    generated from them (with certain adjustments for mitigation and other
    factors).

[6]

Onyx appeals only from the judgment in favour of Gareri. We would not
    interfere with the trial judges findings or his award of damages, and dismiss
    the appeal.

[7]

The trial judge applied the correct principles applicable to the interpretation
    of contracts in general and to oral contracts in particular. He held that when
    dealing with contracts which are substantially or wholly oral: (i) it is
    necessary to distill from the words and actions of the parties what they
    intended: see G.H.L. Fridman,
The Law of Contract in Canada
, 6th ed.
    (Toronto: Carswell, 2011) at 16; (ii) evidence of the parties subjective
    intentions has no independent place in determining the terms of their bargain:
Eli
    Lilly & Co. v. Novopharm Ltd.
, [1998] 2 S.C.R. 129 at para. 54; (iii)
    the test of what the parties agreed to requires an objective determination; and
    (iv) the contract must include the requisite elements of offer, acceptance and
    consideration.

[8]

The trial judge considered the evidence, particularly the factual matrix
    surrounding the making of the Gareri subcontract. He placed considerable weight
     as he was entitled to do  on the fact that Gareri and Harlow had provided
    deposits to Onyx that exactly mirrored their proportionate share of the Onyx
    deposit with the City
for the full five-year period
.
    In addition, although he noted that the fact the written contract prepared by
    Mr. Gareri (but not accepted) proposed a five-year term would not alone have
    turned the interpretation question, the trial judge was alive to that fact. The
    trial judge made adverse credibility findings as against the principals of Onyx
    and found the plaintiffs evidence credible. He accepted the versions of Mr.
    Gareri and Mr. Madeiros (the principal of Harlow).

[9]

We see no error in his approach to the interpretation of the subcontract
    or in the interpretation he reached. His findings and conclusion were entirely
    open to him on the record. Onyx essentially seeks to re-argue the case on
    appeal. We cannot interfere on that basis.

[10]

Nor
    would we interfere with the trial judges assessment of damages. He applied the
    proper measure of damages, namely what was necessary to put Gareri in the same
    position it would have been in had the subcontract not been breached. On that
    basis, he held that Gareri was entitled to the revenue it could reasonably have
    expected to generate from the Onyx subcontract, less adjustments for some minor
    administration fees it would no longer be required to pay and any revenues
    generated through its mitigation efforts. He made no error in this respect. The
    parties had agreed on quantum.

[11]

The
    appeal is therefore dismissed.

[12]

Costs
    are awarded to the respondent in the agreed amount of $12,500 inclusive of
    disbursements and all applicable taxes.

E.A. Cronk J.A.

R.A. Blair J.A.

J. MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Salehi v. Association of Professional Engineers of
    Ontario, 2016 ONCA 438

DATE: 20160603

DOCKET: C61480

Feldman, Rouleau and Huscroft JJ.A.

BETWEEN

Behrouz Salehi

Plaintiff (Appellant)

and

Association of Professional Engineers of Ontario

Defendant (Respondent)

Behrouz Salehi, acting in person

Bernard LeBlanc and Natasha Danson, for the respondent

Heard: May 20, 2016

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated November 26, 2015, with reasons reported
    at 2015 ONSC 7271.

ENDORSEMENT

[1]

The appellant, Behrouz Salehi, appeals from the decision of the motion
    judge that granted the respondents motion for summary judgment and dismissed his
    action for negligence.

[2]

The appellant worked as a gas engineer in Iran for many years before
    moving to Canada in 1997. In 2006, he formally applied to the Association of
    Professional Engineers of Ontario (the APEO), the sole licensing and
    regulatory body for professional engineers in the province, for a license to
    practise engineering. After a lengthy application process, which involved the
    appellant enrolling in a bridging program and rewriting the licensing exams
    several times, the APEO ultimately approved the appellants license on June 14,
    2013.

[3]

Several months after he successfully obtained his license, the appellant
    brought the within action against the APEO, alleging negligence and bad faith
    in the processing and approval of his application.

[4]

The APEO brought a motion to strike the claim as disclosing no
    reasonable cause of action or, alternatively, as having been improperly pleaded.
    On June 24, 2014, Myers J. struck the claim on the basis that it did not
    properly plead the necessary elements of the cause of action, but he granted
    the appellant leave to amend the statement of claim. Following amendment of the
    claim, the APEO moved for summary judgment.

[5]

The motion judge held that there was no genuine issue requiring a trial
    and dismissed the action. He determined that the APEO did not owe a
prima
    facie
duty of care to the appellant or if it did, that duty of care would be
    negated by residual policy considerations.

[6]

In the alternative, the motion judge held that if the APEO owed the
    appellant a duty of care, the appellant would nevertheless have to demonstrate
    that the APEO acted in bad faith in processing his application, because s. 45(1)
    of the
Professional Engineers Act
, R.S.O. 1990, c. P.28, provides
    statutory immunity to the APEO for the good faith performance of its duties:

No action or other proceeding for damages shall be
    instituted against the Association, a committee of the Association or a member
    of the Association or committee of the Association, or an officer, employee,
    agent or appointee of the Association for any act done in good faith in the
    performance or intended performance of a duty or in the exercise or the
    intended exercise of a power under this Act, a regulation or a by-law, or for
    any neglect or default in the performance or exercise in good faith of such
    duty or power.

[7]

The motion judge found that the record did not establish any bad faith
    on the part of the APEO in processing the appellants license application.

[8]

In
Finney v. Barreau du Québec
, 2004 SCC 36, [2004] 2 S.C.R.
    17, at para. 39, the Supreme Court held that bad faith conduct includes not
    only intentional fault, but also serious carelessness or recklessness amounting
    to a fundamental breakdown of the orderly exercise of authority or an actual
    abuse of power.

[9]

The party claiming bad faith must provide specific allegations of it. For
    example, he or she must allege conduct founded upon fraud or oppression, or
an
improper purpose or motive, such as an intention to
    mislead or deceive
or to deliberately cause harm
:
see e.g.
Sampogna v. Smithies, 2012 ONSC 610,
94
    M.P.L.R. (4th) 320, at para. 16; and
Burns v. Johnston
, 2003 CanLII
    44408 (Ont. S.C.), at paras. 29-34. A mere error or omission is not evidence of
    bad faith:
Burns v. Johnston
, at para. 32. See also
Toronto Sun
    Wah Trading Inc. v. Canada (Canadian Food Inspection Agency)
, 2014 ONCA
    803; and
Deep v. Massel,
2007 CanLII 27969 (Ont S.C.), affd

2008
    ONCA 4.

[10]

We agree with the motion judge that none of the acts the appellant complains
    of can be said to constitute bad faith. There was no evidence of malice or
    intent to harm on the part of the APEO, nor was there a fundamental breakdown
    in the orderly exercise of its authority or any abuse of power.

[11]

In dismissing the appeal on this basis, we make no comment on the motion
    judges analysis of whether the APEO owes a duty of care to the appellant. That
    issue was not fully argued before us, and it is unnecessary to address it for
    the purposes of this appeal. However, if the APEO owed the appellant any duty
    of care, in light of s. 45(1) of the Act, the absence of bad faith in this case
    is determinative of the result.

[12]

Accordingly, the appeal is dismissed with costs fixed at $10,000
    inclusive of disbursements and HST.

K.
    Feldman J.A.

Paul
    Rouleau J.A.

"Grant
    Huscroft J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Scamurra v. Sandy Scamurra &
    Sons Limited, 2016 ONCA 446

DATE: 20160607

DOCKET: C60913

Strathy C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Sandy Scamurra

Applicant

(Respondent/Appellant
    by Cross-Appeal)

and

Sandy Scamurra & Sons Limited, Sandy Scamurra
    Contracting Ltd., 726127 Ontario Inc.,
Albert Scamurra
,
Felix
    Scamurra
, AFJ Disposal Inc., TD Canada Trust and Royal Bank of Canada

Respondents

(
Appellants
/
Respondents
    by Cross-Appeal
)

Michael N. Freeman, for the appellants/respondents by
    cross-appeal

Albert Campea, for the respondent/appellant by
    cross-appeal

Heard: March 18, 2016

On appeal from the judgment of Justice Gordon D. Lemon of
    the Superior Court of Justice, dated August 7, 2015.

COSTS ENDORSEMENT

[1]

The appellants were successful in the
    appeal, the cross-appeal and in relation to the respondents motion to admit
    fresh evidence. Notwithstanding the respondents lack of success, he seeks
    costs. He relies on the share purchase agreement which provides that the
    appellants are liable to him for all his costs incurred in the event of
    default by the appellants. The respondent submits that this provision extends
    to his costs in relation to the matters before this court.

[2]

We do not agree. The provision in the
    share purchase agreement cannot be used to indemnify the respondent for unsuccessfully
    responding to an appeal, launching an unsuccessful cross-appeal and submitting
    a failed motion for fresh evidence.

[3]

The appellants are entitled to costs on
    a partial indemnity basis, fixed at $20,000 inclusive of disbursements and
    taxes.

George R. Strathy C.J.O.

P. Lauwers J.A.

M.L. Benotto J.A.