COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Petrolo, 2021 ONCA 498

DATE: 20210708

DOCKET: C67966

Watt, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Caterina Petrolo

Appellant

Alan D. Gold and Laura Metcalf, for the
    appellant

Matthew Asma, for the respondent

Heard: June 28, 2021 by
    videoconference

On appeal from the conviction entered by
    Justice David Harris of the Ontario Court of Justice on January 17, 2020, and
    from the sentence imposed on March 4, 2020, with reasons reported at 2020 ONCJ
    36 and 2020 ONCJ 122.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of
    breach of trust of a public official and one count of attempt to obstruct
    justice for using her position as a paralegal prosecutor to improperly
    influence the outcome of provincial offences matters.

[2]

The police discovered the appellants conduct
    after intercepting communications between the appellant and Police Constable
    Richard Senior, who was the primary target in a large investigation into police
    corruption. P.C. Senior and the appellant were having an affair. The
    intercepted communications detailed steps the appellant took to obtain
    favourable outcomes for friends of P.C. Seniors who were charged with
    provincial offences.

[3]

The intercepted communications were summarized
    in a Substantive Event Summary (SES), which was then disclosed to York
    Region, the appellants employer. Armed with the SES, the appellants
    supervisor gathered court and internal records to provide to the police to use
    in their investigation.

[4]

The appellant sought to have the intercepted
    communications and York Region records excluded from trial on
Charter
grounds. Her application was dismissed. She was found guilty of both offences
    for two separate matters and sentenced to a three-month conditional sentence.
    She appeals her conviction and sentence.

[5]

The appellant challenges the convictions on three grounds:

1.

The verdict was unreasonable. The
    trial judge could not have ruled out the possibility that the appellant was
    lying to impress her intimate friend, and the trial judge was therefore
    required to acquit her.

2.

The trial judge erred in
    concluding that police disclosure of some aspects of the intercepted
    communications to the appellants employer were covered by the exemption in s.
    193(2)(b) of the
Criminal Code
as disclosure made in the course of a criminal
    investigation. As a result, the disclosure was illegal, in contravention of s.
    193(1) of the
Code
, and tainted the interception evidence on
Charter
grounds. Pursuant
    to
Wakeling v. United States of America
, 2014 SCC 72, [2014] 3 S.C.R. 549
, this
evidence should have been excluded.

3.

The appellant was convicted of two
    offences for essentially the same conduct and one of the matters should have
    been stayed by operation of the principles in
R. v.
    Kienapple
, [1975] 1 S.C.R. 729.

[6]

The appellant challenges the sentence, arguing that a conditional
    discharge was the appropriate sentence in the circumstances.

Analysis

[7]

We do not accept these arguments.

(1)

Unreasonable verdict

[8]

In brief, the appellant was accused of
    improperly intervening in the prosecution of five traffic offences between May
    and October 2018. The trial judge acquitted the appellant with respect to three
    of these incidents. The appellants convictions rest on her involvement in the
    remaining two prosecutions.

[9]

The first concerned Mr. Carlton Wills, who
    received a traffic ticket for disobeying a sign. This charge was ultimately
    withdrawn. The second concerned Mr. Nicholas Guarino, who was charged with
    careless driving. This charge was later reduced to disobeying a lane light.

[10]

There was nothing improper on the face of these
    dispositions. The assessment of the appellants role in these events depends on
    the interpretation of her intercepted communications.

The Wills matter

[11]

P.C. Senior had grown up with Mr. Wills son,
    Fabian. They had been friends for 30 years. After he received the ticket, Mr.
    Wills contacted P.C. Senior and asked what he could do about it. On P.C.
    Seniors instructions, Mr. Wills set a court date for June 1, 2018. Roughly a
    week before the court date, Mr. Wills received a call telling him not to
    attend.

[12]

A transcript of proceedings at the Richmond Hill
    Provincial Offences Court, dated June 1, 2018, states that a prosecutor  not
    the appellant  withdrew the charge. Mr. Wills was listed as appearing in
    person.

[13]

The appellant is only connected to Mr. Wills
    matter through the intercepted communications. The appellant, P.C. Senior, and
    Fabian communicated via WhatsApp on June 1, 2018 at around midnight. The key
    portions of their conversation read:
[1]

CP: Hello!!!

FW: Lmao

CP: Fabian your fathers disobey sign tickets
    gone bye [emoji]

FW: Well hello

CP: Im still sweating [emoji]

FW: Omg. You are too good to me and my pops

FW: He wants to meet you

CP: Lol he owes me a drink

RS: I am officially shutting down the CP lets
    make a deal office after this

CP: Rich ur tab is getting big

RS: Lol

FW: I am sure CP will assist where she can
    with Myles. But this chat group is solely Wills and their traffic stupidity

CP: Yes I agree Fabian

RS: Then the name should reflect that

CP: Lmao

RS: Wills ticket specialist

FW: What you and
    her do in your spare time is not my business [emoji]

[14]

There later followed a discussion of a Toronto
    traffic ticket. The appellant was not a prosecutor in Toronto:

CP: Drum roll pls ....

CP: Fabian .. pls tell ur dad his seatbelt
    ticket was withdrawn

CP: Total saving of 4 points and $350

CP: Lucky man

FW: Fml

FW: I am feeling jealous

CP: Lol

CP: Now he needs to keep that record squeaky
    clean

CP: And pls make
    sure that he doesnt attend that June court date

The Guarino matter

[15]

Mr. Guarino was initially charged with careless
    driving. He spoke with a friend, Roman, who advised Mr. Guarino he would try
    and speak to someone about helping him with the charge.

[16]

Mr. Guarino ultimately attended court and
    pleaded guilty to disobeying a lane light. The fine was substantially lower
    than that for careless driving, and there are no demerit points for disobeying
    a lane light compared to six points for careless driving.

[17]

The appellant was not the prosecutor at court on
    the day Mr. Guarino appeared, and she never spoke with him. Again, the only
    evidence linking the appellant to the matter is in the following intercepted
    telephone conversation between the appellant and P.C. Senior:

PETROLO
:  And I called you because I worked some magic with uh Romans
    ticket

SENIOR
:     Oh Romans buddys ticket yeah

(voices overlap)

PETROLO
:  His buddys ticket

SENIOR
:     Yeah

PETROLO
:  Okay so I offered him zero (0) points like a lane light it
    doesnt even apply does not sit I squeezed it out

SENIOR
:     Yeah

PETROLO
:  Uhm it shouldve been like a fail to tum out left to
    (unintelligible)

(voices overlap)

SENIOR
:     Yeah yeah

PETROLO
:  (mouth noise) Tell him he better not know me he better not
    fucking squawk cause if he squawks theyll look at the deal right

SENIOR
:     Yeah yeah yeah a hundred (100) percent

PETROLO
:  So tell him tell him to take fuckin deal and shut up and not
    question it

(voices overlap)

PETROLO
:  Well you gimme a headache too sometimes so were even

SENIOR
:     Okay sup

PETROLO
:  Uhm that's it. I was telling you about the ticket

SENIOR
:     Oh okay

PETROLO
:  Make sure he doesn't squawk (ph) hey

SENIOR
:     Yeah yeah Ill forward you what I wrote him sent him

PETROLO
:  Because as soon as he says is there anything better theyre gonna
    be like this doesn't even apply

SENIOR
:     Yeah

PETROLO
: So (unintelligible) take it 'n be quiet.

The verdict was not
    unreasonable

[18]

The appellant argued that this evidence did not
    exclude the possibility that the appellant was lying in an effort to impress
    Senior and that, therefore, the trial judge had to acquit her. The trial judge
    rejected this argument, noting that there was no direct evidence to support the
    suggestion that the statements by the appellant were an attempt to ingratiate
    herself with Senior.

[19]

The trial judge recognized that the burden lay
    upon the Crown to prove the offences beyond a reasonable doubt, citing
R.
    v. W.(D)
, [1991] 1 S.C.R. 742, and also that the appellant was not obliged
    to testify.

[20]

He was not required to acquit based on
    supposition or conjecture, that flows from a purely hypothetical narrative:
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 50.

[21]

While trial judges must consider exculpatory
    theories inconsistent with guilt when convicting an accused based on
    circumstantial evidence, such theories must be based on logic and experience
    applied to the evidence or absence of evidence, not on speculation:
R. v.
    S.B.1
, 2018 ONCA 807, 143 O.R. (3d) 81, at para. 124. As explained in
R.
    v. S.B.1
, at para. 138:

Decisions of this court since
Villaroman
demonstrate that merely because a trial judge rejects an alternative theory
    inconsistent with guilt does not mean that he or she committed a so-called
Villaroman
error. It may simply mean that there was no available inference, other than guilt,
    that was reasonable, given the evidence and the absence of evidence, and in
    light of human experience and common sense. Nor does the use of expressions
    such as no evidence to the contrary or no competing narrative signal a
Villaroman
error or a misplacement of the burden of proof. [Citations omitted.]

[22]

Deference is owed to a trial judges conclusion
    that there are no reasonable alternative inferences other than guilt:
R. v.
    S.B.1
, at para. 139.

[23]

Here, the trial judge could reasonably take the
    appellant at her word and conclude in light of human experience and common
    sense that the appellant had in fact fixed the tickets as a favor to Senior
    and his associates. There was nothing manifestly untrue about any of the
    appellants intercepted communications. The appellant did not testify, so there
    was no evidence that she was lying in these communications. There is no common
    sense inference that a party to an affair will lie so as to ingratiate him or
    herself with the other party: see
R. v. Perkins
, 2007 ONCA 585, 228
    O.A.C. 120, at para. 35;
R. v. JC
, 2021 ONCA 131, 70 C.R. (7th) 38, at
    paras. 58-62.

[24]

There is no basis to conclude that the trial
    judge reversed the burden of proof or failed to consider the absence of
    evidence from the prosecutors who actually dealt with the matters in the
    courtroom.

(2)

Disclosure of the intercepted communications

[25]

The appellant acknowledges that the above
    communications were lawfully intercepted. She argues that her rights under s. 8
    of the
Charter
were violated by the subsequent illegal disclosure of
    these intercepted communications and that the evidence should properly have
    been excluded.

[26]

On the afternoon that the appellant was
    arrested, York Regional Police Inspector deRuiter emailed a copy of a document
     the SES  to York Regional Solicitor Joy Hulton. Inspector deRuiter testified
    that he approached Ms. Hulton to seek help in obtaining documents necessary for
    the investigation and that he thought sending the SES was the easiest way to
    communicate the substance of the allegations.

[27]

The SES was seven pages long. It referred to
    nine separate instances of purported fixing of provincial offence notices.
    While the document did not contain a transcript or recording of the intercepted
    communications, it included very short summaries. The extracts specifically
    referred to in the SES relate to the appellant taking steps to deal with
    tickets.

[28]

The SES was passed along to York Region Senior
    Counsel for Prosecutions Chris Bendick. Mr. Bendick, who was also the
    appellants supervisor, used the SES to pull court records and internal
    prosecution records to ascertain whether what was said in the SES and
    intercepted communications was connected to the appellant. He provided the
    documents gathered to the police.

[29]

Sections 193(1) and 193.1(1) of the
Criminal
    Code
make the use or disclosure of an intercepted communication or
    disclosure of any part, substance, or meaning thereof or its existence, an
    indictable offence, subject to the exemptions in ss. 193(2) and (3): see
Wakeling
    v. United States of America
.

[30]

One of the exemptions is for disclosure in the
    course of a criminal investigation. For ease of reference, the relevant
    exemption read as follows:

(2) Subsection (1) does not apply to
    a person who discloses a private communication or any part thereof or the
    substance, meaning or purport thereof or of any part thereof or who discloses
    the existence of a private communication

(b)
    in the course of or for the purpose of any criminal investigation if the
    private communication was lawfully intercepted;

[31]

The trial judge found that the police disclosed
    the information in the course of or for the purpose of a criminal
    investigation. The information was disclosed for the subjective, specific
    purpose of enabling counsel for York Region to locate documents which the
    police hoped to use as evidence against the appellant.

[32]

The appellant submits that it was entirely
    unnecessary for the police to disclose the intercepted communications. They
    could have requested the sought-after ticket information by giving the ticket
    numbers, the names of the persons involved, or the dates of the provincial
    court appearances. Further, the police failed to warn the recipients of their
    request that disclosure was prohibited by the
Criminal Code
. Counsel
    argues that the temporal connection between the disclosure and the arrest or
    investigation of the appellant is not enough to establish that the disclosure
    of the intercept was of or for the purpose of [a] criminal investigation.

[33]

We agree that it was not logically necessary for
    police to disclose the intercepted communications to obtain the documents they
    sought; however, we are not persuaded that necessity is an element of the
    exemption. The language in the course of or for the purpose of any criminal
    investigation is broad and not so limited. Where Parliament meant to require
    necessity as an element in this context it has done so expressly: see, e.g.,
    ss. 184(2)(c) and (e), 184.4(b), 193(2)(d).

[34]

In
Wakeling
, s. 193(2)(e) was in issue.
    This section permits domestic and international sharing of intercepted private
    communications to investigative and prosecutorial authorities. This disclosure
    is potentially quite intrusive, as once the evidence is in a foreign state
    Canadian laws may have no application to its use.

[35]

Moldaver J. held that, under s. 193(2)(e), the
    subjective belief of the person making the disclosure is the relevant factor
    for determining whether the exemption is engaged. It is difficult to see how an
    objective test of necessity for the disclosure is compatible with the
    subjective assessment required. Further, in her concurring opinion, McLachlin
    C.J.C. indicated, at para. 92-93, that:

[A] valid warrant
    sanitizes the state intrusion on privacy, as long as the execution of the
    warrant is reasonable and the information is used for the purposes of law
    enforcement. Provided information is shared for purposes of law enforcement,
    the individual cannot complain that the sharing violates his s. 8 right to
    privacy.

There was no suggestion that necessity was
    an element of the exemption.

[36]

Here, there is much more than simply a temporal
    connection between the impugned disclosure and the investigation and arrest.
    The police were subjectively looking for relevant documents in aid of their
    investigation. In our view, the disclosure was made in the course of and for
    the purpose of a criminal investigation and, accordingly, the exemption
    applies.

[37]

Further, we agree with the trial judges
    conclusion that, taking into account the content of the SES, the police acted
    reasonably, particularly given the limited reference to the intercepted
    communications confined to some of the appellants statements about her actions
    in relation to tickets.

[38]

The disclosure was therefore lawful, and there
    is no
Charter
breach associated with the intercepted communications.
    We need not consider whether the exemption in s. 193(2)(a) applies.

(3)

Was the appellant properly convicted of both
    offences?

[39]

The appellant was convicted of breach of trust
    by a public official, under s. 122 of the
Criminal Code
, and
    obstruction of justice, under s. 139(1).

[40]

The trial judge accurately stated the elements
    of each offence. For breach of trust by a public official he noted, at para. 23
    of his reasons, that the Crown must prove each of the following:

1)

The accused is an official;

2)

The accused was acting in connection with the
    duties of her office;

3)

The accused breached the standard of
    responsibility and conducted demanded of her by the nature of the office;

4)

The conduct of the accused represented a serious
    and marked departure from the standards expected of an individual in the
    accuseds position of public trust; and,

5)

The accused acted with the intention to use her
    public office for a purpose other than the public good, for example, for a
    dishonest partial, corrupt of oppressive purpose: see
R. v. Boulanger
,
    2006 SCC 32, [2006] 2 S.C.R. 49, at para. 58.

[41]

In relation to the elements of obstruct justice,
    citing
R. v. Yarlasky
(2005), 195 O.A.C. 188 (C.A.), the trial judge
    listed the essential elements as follows:

1)

The accused must have done enough for there to
    be a risk, without any further action by her, that injustice will result; and,

2)

The attempt by the accused to obstruct justice
    must have been wilful.

[42]

As is apparent from their elements, these are
    two different offences that serve different societal interests. One applies
    only to officials. Obstruction of justice requires an intent to obstruct,
    pervert or defeat the course of justice. There are additional and
    distinguishing elements which differentiate the two offences: see
R. v.
    Prince
, [1986] 2 S.C.R. 480, at pp. 493-495;
R. v. Kinnear
(2005),
    199 O.A.C. 323 (C.A.), at paras. 32-39. The
Kienapple
principle does
    not foreclose conviction for both offences.

(4)

The sentence appeal

[43]

The appellant also submits that the trial judge
    erred in not granting a conditional discharge. She submits that the trial judge
    unreasonably distinguished cases in which a discharge had been granted by
    observing that those involved guilty pleas. Counsel argues that a conditional
    discharge would not have been contrary to the public interest given that the
    appellant was a 37-year-old first offender with no previous record. She has
    suffered serious collateral consequences: the loss of her job and profession.

[44]

In our view, the three-month conditional
    sentence imposed was not demonstrably unfit, nor was there an error in
    principle. The weight to be given to the mitigation factor of remorse
    demonstrated by a guilty plea in the other cases was a matter for each of the
    sentencing judges in those cases. That mitigating factor was absent here.
    Whether a conditional discharge would have been contrary to the public interest
    was a discretionary decision available to the trial judge: see
R. v. Lu
,
    2013 ONCA 324, 307 O.A.C. 40, at paras. 48-50, leave to appeal refused, [2013]
    S.C.C.A. No. 313. Given the serious violations of trust placed in the appellant
    as an official, and the potential to erode public confidence in the
    administration of justice, some denunciation was required. There is no basis to
    interfere with the trial judges decision that a conditional discharge would
    not be appropriate.

Disposition

[45]

Accordingly, the appeal from convictions is
    dismissed. Leave to appeal sentence is granted but the appeal from sentence is
    also dismissed.

David Watt J.A.

G. Pardu J.A.

Gary Trotter J.A.

[1]
CP is the appellant; RS is P.C. Senior; and FW is Fabian
    Wills.


COURT OF APPEAL FOR ONTARIO

CITATION: Wiseau Studio, LLC v. Harper, 2021
    ONCA 504

DATE: 20210707

DOCKET: M52604 (C68580)

Fairburn
    A.C.J.O. (Motions Judge)

BETWEEN

Wiseau
    Studio, LLC and Tommy Wiseau d.b.a. Wiseau-Films

Plaintiffs/Defendants
    by Counterclaim

(Appellants
/
Moving Parties)

and

Richard
    Harper, Fernando Forero McGrath, Martin Racicot d.b.a. Rockhaven Pictures, Room
    Full of Spoons Inc., Parktown Studios Inc. and Richard Stewart Towns

Defendants/Plaintiffs by Counterclaim

(Respondents/Responding Parties)

Daniel Brinza, for the moving parties

Meredith Bacal and Matthew Diskin, for the responding
    parties

Heard: July 7, 2021 by video conference

ENDORSEMENT

[1]

This is a motion pursuant to s. 65.1(1) of the
Supreme
    Court Act
, R.S.C. 1985, c. S-26, seeking a stay of a decision of this
    court, which decision requires the moving parties to post security for costs of
    their appeal and the costs awarded from trial by no later than 4:00 p.m. today,
    failing which the
[responding parties]
may move
ex parte
in writing before [that] panel for an
    order dismissing the appeal:
Wiseau Studio, LLC v. Harper
, 2021 ONCA
    396, at para. 10.

[2]

The request for a temporary stay of this courts
    panel decision is predicated on the moving parties efforts to obtain leave to
    appeal to the Supreme Court of Canada.

[3]

For the following reasons, the moving parties motion
    to stay the panel decision is dismissed.

[4]

First, there is no serious issue raised by the moving
    parties application for leave to appeal to the Supreme Court.

[5]

The order of Thorburn J.A. required the posting
    of security for costs of the appeal and the costs awarded at trial:
Wiseau
    Studio, LLC v. Harper
, 2021 ONCA 31, at para. 41. That order was upheld by
    a panel of this court on June 2, 2021, with reasons released on June 7, 2021.
    As the panel noted, the Thorburn J.A. decision was a discretionary one based
    upon the record before her at that time. Moreover, the moving parties failed to
    justify why fresh evidence should be admitted on review. As such, according to
    the panel, at para. 7 of their reasons, the review turned on the fact that it
    was reasonably open to [Thorburn J.A.] in the exercise of her discretion to
    make the order she made, specifically as it related to security for costs of
    both the trial and appeal pursuant to r. 61.06(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. I see no error in that approach.

[6]

It is largely the facts that drove the final
    decision about the posting of costs in this case. Those facts are well
    documented in Thorburn J.A.s decision, most notably at para. 10, and I will
    not repeat them here. Needless to say, as reflected in Thorburn J.A.s review
    of the record below, there had been findings regarding the fact that the moving
    parties (normally resident outside of Ontario) had put up roadblocks to
    scheduling at almost every attendance and engaged in other improper acts that
    interfered with the efficient course of the litigation.

[7]

For purposes of this motion, and the first
    question on the stay application pertaining to whether there is a serious
    issue to be dealt with, the moving parties have failed to demonstrate that
    there is a an issue of public or national importance raised in the Notice of
    Application for Leave to Appeal to the Supreme Court of Canada that could
    possibly rise to the level of meeting the stringent requirements of s. 40(1)
    of the
Supreme Court Act
:
Livent Inc. v. Deloitte & Touche
,
    2016 ONCA 395, 131 O.R. (3d) 784, at para. 7. This is particularly true given
    the completely discretionary nature of the original order in this case, as
    upheld by the panel on review. It is well settled that these types of
    discretionary orders are owed deference on review:
Yaiguaje v. Chevron
    Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 20. This is even
    more the case when discretionary orders, such as the one in dispute here, are
    heavily predicated on fact-finding.

[8]

The second issue to be considered is whether the
    moving parties will suffer an irreparable harm if the stay is not imposed:
Deloitte
,
    at para. 4. They will not.

[9]

Having reviewed the evidence on this motion, at
    its highest, there is a suggestion by the moving parties, as reflected in the
    affidavit of Tommy Wiseau, dated June 28, 2021, that he does not have
    sufficient funds, or access to sufficient funds, to meet the demands of this
    courts order. I am not satisfied that this evidence reflects anything more
    than, as the responding parties put it, a request to imagine the irreparable
    harm that may flow. While there is discussion in Mr. Wiseaus affidavit about
    the general financial implications of the COVID-19 pandemic in the United
    States and on the entertainment industry in particular, and a suggestion that
    it is impossible for
[Mr. Wiseau]
to be able to obtain liquidity on a short notice, there are no
    specifics given about why that is so. This is nothing more than a request to
    trust Mr. Wiseau. In light of the history of this matter, cogent evidence would
    be required to satisfy me that the security for costs required as a result of
    this courts decision cannot be posted.

[10]

In any event, even if the court was inclined to
    extend the trust requested, the responding parties have provided an in-writing
    undertaking that alleviates any harm that may flow to the moving parties pending
    resolution of the application for leave to appeal to the Supreme Court. That
    correspondence, dated July 4, 2021, is written by counsel to the responding
    parties, Matthew Diskin, and includes the following undertaking:

Further to your July 7 motion in the Wiseau
    matter, our clients and my firm undertakes that any funds recovered as relates
    to the cost awards and judgments in this matter will be held in trust, pending
    the leave to appeal motion to the Supreme Court of Canada. If leave is granted,
    and the order of the panel upholding security for costs of the appeal and
    judgment reversed, then such funds would remain in trust pending the hearing of
    the appeal of Justice Schabas judgment. If leave is not granted or if the
    proposed appeal is dismissed, then such funds would be released.

The point is that there is no need for a stay
    motion in view of the foregoing undertaking. My position is, and will be before
    the Court of Appeal on July 7, that the stay motion should be dismissed on
    various bases, but that to the extent there is any question, it is entirely
    resolved by the undertaking.

[11]

Even if there could be harm flowing from
    dismissing this stay motion, the potential for harm has been significantly
    mitigated by the responding parties by way of this undertaking. In essence, any
    recovered funds will be held in trust pending the decision on the leave to
    appeal application before the Supreme Court of Canada. Of course, were the moving
    parties to be successful on that leave application, they could make a request
    of the Supreme Court of Canada to grant any necessary, interim remedies deemed
    necessary.

[12]

Third, and finally, I will address whether the
    balance of convenience favours a stay:
Deloitte
, at para. 4.

[13]

As reflected in Thorburn J.A.s reasons, at
    para. 7, this litigation commenced with an
ex parte
injunction that
    restrained the release of the documentary that is at the heart of this dispute.
    Unbeknownst to the court that granted that injunction, at the same time that
    the
ex parte
motion was brought by the moving parties, the parties
    were negotiating about the documentarys release.

[14]

I pause to note that in a clearly different
    vein, but carrying the same element of surprise, during the hearing of this motion,
    the responding parties came to know for the first time, through a public
    website, that just yesterday the moving parties sued them in Federal Court. The
    responding parties have not yet seen the Statement of Claim because it has not
    yet been served on them. When asked about whether this was true, the moving
    parties counsel acknowledged that in fact this claim had been filed in court yesterday
    without any notice to the responding parties, suggesting that it was really
    nothing more than a cheap insurance policy to keep the moving parties
    options open going forward.

[15]

It falls beyond the scope of the motion before
    me to comment upon that turn of events, other than to observe this behaviour appears
    somewhat consistent with many of the factual observations recounted by and made
    by Thorburn J.A. in her reasons.

[16]

In any event, focusing on the balance of
    convenience here, I accept what Thorburn J.A. sets out in her reasons, at para.
    34, that there is evidence that the responding parties will suffer prejudice if
    the order of this court to post security for costs is not granted (and
    therefore if it is stayed). That prejudice includes the fact that, as noted by
    multiple case management judges in the past and the trial judge, Mr. Wiseau
    seems to be engaging in tactical attempt(s)  to delay and obstruct the
    release of Room Full of Spoons.

[17]

Conversely, I see no compelling evidence of harm
    to the moving parties, other than the fact that they may not be able to post
    the security for costs today. Of course, the panel hearing the review from
    Thorburn J.A.s order gave them one month to do so. I am hearing this motion
    mere hours before the deadline.

[18]

In all of these circumstances, including the responding
    parties written undertaking, the overarching consideration involving the
    interests of justice leads me to conclude that this motion to stay the panel
    decision of this court should be dismissed.

[19]

If the moving parties do not comply with this
    courts panel decision, and the responding parties decide to move
ex parte
in writing before
[
the
]
panel for an order dismissing the appeal,
    the responding parties must include these reasons and their undertaking as part
    of the record to be placed before the panel on that
ex parte
application.

Disposition

[20]

The moving parties motion to stay the panel
    decision of this court is dismissed.

[21]

Costs submissions will be heard in writing.

[22]

The responding parties may provide written costs
    submissions of no more than two pages no later than July 9, 2021. The moving
    parties may respond with written costs submissions of no more than two pages no
    later than July 13, 2021.

Fairburn
    A.C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION: Wiseau Studio, LLC v. Harper, 2021
    ONCA 505

DATE: 20210708

DOCKET: M52604 (C68580)

Fairburn
    A.C.J.O. (Motions Judge)

BETWEEN

Wiseau
    Studio, LLC and Tommy Wiseau d.b.a. Wiseau-Films

Plaintiffs/Defendants
    by Counterclaim

(Appellants
/
Moving Parties)

and

Richard
    Harper, Fernando Forero McGrath, Martin Racicot d.b.a. Rockhaven Pictures, Room
    Full of Spoons Inc., Parktown Studios Inc. and Richard Stewart Towns

Defendants/Plaintiffs by Counterclaim

(Respondents/Responding Parties)

Daniel Brinza, for the moving parties

Meredith Bacal and Matthew Diskin, for the responding
    parties

Heard: July 7, 2021 by video conference

COSTS ENDORSEMENT

[1]

The endorsement in this matter was released
    yesterday. Costs will be paid to the respondents in the agreed upon all
    inclusive amount of $3,500.

Fairburn
    A.C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION: Zia v. Ahmad, 2021 ONCA 495

DATE: 20210708

DOCKET: C69391

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Maria
    Zia

Applicant (Respondent)

and

Zafar
    Ahmad

Respondent (Appellant)

Gary S. Joseph, for the appellant

Michael H. Tweyman, for the respondent

Heard: In writing

On
    appeal from the order of Justice Cheryl Lafrenière of the Superior Court of
    Justice, dated October 22, 2020.

REASONS FOR DECISION

[1]

The appellant, Zafar Ahmad, appeals from the dismissal of his motion
    under r. 25(19) of the
Family Law Rules
, O.
    Reg. 114/99, to set aside a default order granted on January 17, 2020. The
    default order directed, among other things, that Mr. Ahmad pay spousal support
    to the respondent, Maria Zia, that he designate Ms. Zia as a beneficiary on his
    life insurance for as long as he was obligated to pay spousal support, and that
    he make an equalization payment to her.

[2]

The parties were married in 2009 and separated
    in 2015. In 2016, they participated in an arbitration conducted through their
    Ahmadiyya Muslim community; an award was made on August 13, 2016 (the Award).
    The Award stated that it was addressing four issues: divorce and habitation
    rights, dower money, possession of certain household items, and possession of
    certain  jewellery. None of the issues decided were described as equalization
    of net family property or as support. A space on the Award form entitled spousal
    support was crossed off with the notation N/A. An issue concerning the
    matrimonial home was not decided; the Award instead advised the parties to
    consult court because of legal implications of subject matter.

[3]

Ms. Zia commenced her court application for
    support and an equalization payment on March 6, 2018. She served the
    application on Mr. Ahmad in April 2018, and then served an amended version of
    it on him in June 2018. Mr. Ahmad did not respond to either service. He was
    noted in default in February 2019. He took no steps up to and including the
    making of the default order.

[4]

Mr. Ahmad does not challenge the test that the motion judge applied,
    under which the following factors are considered:

a)

whether the moving party moved promptly, after
    learning of the order, to have it set aside;

b)

whether the moving party has provided an
    adequate explanation for the failure to respond to the proceeding in accordance
    with the
Family Law Rules
;

c)

whether the moving party has established an
    arguable case on the merits;

d)

whether the moving party is acting in good faith
    and with clean hands";

e)

the prejudice that may be suffered by the
    moving party if the motion is dismissed and to the responding party if the
    motion is allowed; and,

f)

whether, in the final analysis, the interests of
    justice favour setting aside the judgment.

[5]

Mr. Ahmad submits that the motion judge erred by
    failing to appreciate that the default order was made without jurisdiction
    because the parties had previously submitted their dispute to an arbitration, or
    in failing to appreciate that the Award gave rise to a
res

judicata

defence to Ms. Zias claims.

[6]

We do not accept these arguments.

[7]

The default order was not made without
    jurisdiction simply because the parties had participated in an arbitration. Mr.
    Ahmad does not point to any evidence that the parties had agreed that they
    would submit, to arbitration, claims for support, insurance to secure spousal
    support, or equalization. Nor does he identify any evidence that the parties
    made that agreement after their dispute arose or that the arbitration about
    such matters was to be conducted exclusively under Ontario law or the law of
    another province of Canada  preconditions to any such agreement being valid or
    any such arbitration having legal effect:
Family Law Act
, R.S.O. 1990,
    c. F.3, ss. 59.2(1)(b) and 59.4. In any event, an arbitration agreement does
    not preclude the court from exercising jurisdiction if a motion to stay the
    court proceeding has not been brought and granted:
Arbitration Act
,
1991
,
    S.O. 1991, c. 17, s. 7. Here, there was no motion for a stay.

[8]

The argument that the Award bars Ms. Zias
    claims based on the doctrine of
res judicata
is also without
    substance. For that doctrine to apply, the issues that were, or could have
    been, dealt with in the arbitration would have to be the same as those that
    were the subject of the court proceeding:

Rathwell v. Hershey Canada Inc.
(2001)
, 152 O.A.C. 1 (CA),
at para.
    5, leave to appeal refused, 164 O.A.C. 279 (note) (SCC). The Award does not
    deal with equalization, support, or insurance to secure support; nor, for the
    reasons above, is there any evidence that it could, with legal effect, have
    dealt with those issues.

[9]

Mr. Ahmad also submits that the motion judge
    failed to take into account that he was self-represented or consider his
    evidence about his ability to make support payments or the net family property
    calculations. He argues that the motion judge should not have decided the
    matter without
viva voce
evidence, and that her reasons are inadequate.

[10]

We reject these submissions. The motion judge
    was clearly aware of the fact that Mr. Ahmad was self-represented. She considered
    his submissions and the evidence he put forward. Her findings of fact arising from
    her assessment of that evidence are entitled to deference, as is her exercise
    of discretion as to whether to set aside the default order.

[11]

The motion judge concluded that although Mr.
    Ahmad had acted promptly once he became aware of the default order, this was
    the only factor of the test that he satisfied. She found that he failed to
    provide an adequate explanation for his failure to respond to the application
    for more than 18 months after he was served, did not establish an arguable case
    on the merits, provided no financial disclosure, and lacked clean hands. She
    was not required to conduct a
viva voce
hearing. Her reasons are not
    inadequate; they permit meaningful appellate review.

[12]

The appeal is dismissed. If the parties are
    unable to agree on costs, they may make submissions in writing, not exceeding 2
    pages each, within 10 days of the release of these reasons.

David
    Brown J.A.

L.B.
    Roberts J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fort Erie (Town) v. 2312810
    Ontario Inc., 2021 ONCA 500

DATE: 20210707

DOCKET: M51952 (M51357)

Watt, Pardu and Trotter JJ.A.

BETWEEN

The Corporation of the Town of Fort Erie

Responding Party

and

2312810 Ontario Inc., Daniel Leo Lino
    Favero, Linda Favero

and Leo Joseph Favero

Moving Parties/Applicants

Stephanie DiGiuseppe and Karen Heath,
    for the moving parties/applicants

Terrence H, Hill, for the responding
    party

Heard and released orally: July 2, 2021 by
    video conference

REASONS FOR DECISION

[1]

The applicants seek an order setting aside the
    order of the motion judge dismissing their application for leave to appeal
    under s. 131(1) of the
Provincial Offences Act
.

[2]

Casting the decision of the motion judge
    refusing leave to appeal as based upon or amounting to jurisdictional error, they
    invoke the decision in
Hillmond Investments Ltd. v. Canadian Imperial Bank
    of Commerce
(1996)
, 29 O.R.
    (3d) 612 (Ont. C.A.), in support. They concede that the decision in
Hillmond
has not previously been applied in circumstances governed by s. 131 of the
POA
.

[3]

It is well-settled, as the motion judge said,
    that leave to appeal should be granted only in exceptional cases. Indeed, s.
    131(2) of the
POA
limits the granting of leave to cases in which the
    motion judge is satisfied that, in the particular circumstances, it is
    essential:

i.

in the public interest; or

ii.

for the due administration of justice

that leave be granted.

[4]

Section 131(3) of the
POA
enacts a
    prohibition against appeals or reviews from decisions on leave motions under s.
    131(1).

[5]

In our view, this application, however
    characterized, is barred by s. 131(3) of the
POA
. Further, even if
Hillmond
    Investments
were applicable, an issue which we need not decide, we are not
    persuaded that there was any jurisdictional failure on the part of the motion
    judge that would justify the order sought.

[6]

The application is dismissed. There is no order
    as to costs.

David Watt J.A.

G. Pardu J.A.

Gary Trotter
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Marfo (Re), 2021 ONCA 480

DATE: 20210707

DOCKET: C68732

Hourigan, Paciocco and Zarnett
    JJ.A.

IN THE MATTER OF: Alfred Marfo

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Vallery Bayly, for the respondent,
    Attorney General of Ontario

Leisha Senko, for the respondent,
    Person in Charge of the Centre for Addiction and Mental Health

Heard: June 24, 2021 by video conference

On appeal from the disposition of the
    Ontario Review Board dated July 24, 2020, with reasons dated October 14, 2020.

REASONS FOR DECISION

Introduction

[1]

The appellant appeals the disposition of the
    Ontario Review Board (the Board) that ordered him to be detained on the
    General Forensic Unit at the Centre for Addiction and Mental Health (CAMH) on
    conditions.

[2]

The appellant contends that the Board erred in
    law in finding that he was a significant threat to the safety of the public,
    and thus in failing to grant an absolute discharge. Alternatively, he submits
    that the Board erred in law in failing to give meaningful consideration to a
    conditional discharge, and to the extent the Board did consider a conditional
    discharge, it unreasonably failed to grant one. The appellant concedes that he
    has a history of violence committed against intimate partners, but places central
    reliance on what he says was the Boards failure to take note of a four year
    period of stability between 2015 and 2019, during which the appellant lived in
    the community while on bail in relation to the index offences.

[3]

A decision of the Board is subject to deference
    on appeal. This court may intervene only if the Board made an error of law,
    there was a miscarriage of justice, or the decision is unreasonable or cannot
    be supported by the evidence:
Criminal

Code
, R.S.C.,
    1985, c. C-46, s. 672.78. We do not accept the appellants arguments that a
    basis for appellate intervention exists in this case. We therefore dismiss the
    appeal.

Background

[4]

In April
2001, the appellant assaulted his
    common law wife and, for several hours, forcibly confined her in their
    apartment. In October 2001, he was found not criminally responsible due to a mental
    disorder (NCR) on charges of forcible confinement, assault with a weapon, and
    aggravated assault, and came under the jurisdiction of the Board.

[5]

The appellant continued under the Boards
    jurisdiction until 2014. Between 2001 and 2014, he had a number of lengthy
    admissions to CAMH, Millhaven Institution, and the Mental Health Centre
    Penetanguishene (now Waypoint Centre for Mental Health Care).There were also
    periods during which he was permitted to live in the community.

[6]

In November 2003, while living in the community,
    the appellant assaulted, sexually assaulted, and forcibly confined a second
    intimate partner. On this occasion, the forcible confinement lasted nine hours.
    He was ultimately found NCR on charges arising from that conduct.

[7]

In August 2014, the appellant received an
    absolute discharge from the Board.

[8]

Within a year of his discharge, on March 8,
    2015, the appellant committed the index offences against a third intimate
    partner. He confined her in an apartment for five hours, prevented her from
    calling the police, hit her, and threatened to kill her.

[9]

After an initial period of detention following
    his arrest for the index offences, the appellant was granted bail and lived in
    the community for more than four years. He was supported by payments under the
    Ontario Disability Support Program, and episodic work. He was treated by family
    physicians and prescribed anti-psychotic medication; he had a number of
    psychiatric assessments.

[10]

On December 18, 2019, the appellant was found
    NCR in relation to the index offences, on charges of assault causing bodily
    harm, assault with a weapon, and sexual assault.

[11]

On July 9, 2020, the Board held a hearing to
    determine whether the appellant was a significant threat to the community and,
    if so, what disposition was necessary and appropriate.

The Boards Decision

[12]

At the hearing before the Board, CAMH and the
    Crown took the position that the appellant was a significant threat to the
    safety of the public and that a detention order was necessary. They opposed
    either an absolute or conditional discharge. The appellant requested an
    absolute discharge, or alternatively a conditional discharge. He relied heavily
    on his conduct while on bail during the four years following the index
    offences, taking the position that he had educated himself on his illness,
    taken rehabilitative steps, seen a physician regularly, taken prescribed
    medications, and received support from his mother.

[13]

The
Board concluded that
    the appellant posed a significant threat to the community and made a detention
    order, with privileges up to living in the community in accommodations approved
    by the Person in Charge.

[14]

The Board noted the appellants significant
    psychiatric history and service utilization. He has been diagnosed with
    schizophrenia with symptoms of delusional ideation, auditory and visual
    misperceptions, affective instability disinhibition, and agitation. His
    delusional system was pervasive.

[15]

The Board accepted the evidence of Dr. Paul Benassi,
    who performed a psychiatric and mental status examination of the appellant in
    May 2020, and the reports of Dr. Philip Klassen, who conducted a psychiatric
    assessment for the court during the proceedings leading to the 2019 NCR
    finding. The Board noted that both psychiatrists concluded that the appellant posed
    a significant risk due to his significant and repeating violence, his psychotic
    illness and ongoing symptoms, problems with medication compliance, impaired
    insight into his illness, and his risk assessment scores.

[16]

Dr. Benassi gave evidence that the appellants
    treatment while in the community was suboptimal: he was taking medication in a
    dosage far below what was recommended, was continuing to experience psychotic
    delusions, and lacked interest in increasing his medication. These bore on the
    assessment of risk as, in Dr. Benassis view, the appellant had limited or
    impaired insight into his condition and need for treatment. Dr. Benassi
    testified that:

As we can see, Mr. Marfo has a significant
    history of violence, specifically in intimate relationships. From reviewing all
    incidents, but mainly the most recent index offence is that this has occurred
    under symptoms of psychosis, specifically paranoid delusions that have been
    directed towards his partner. It appears that even at that time, and currently,
    he still is not [optimally] treated for his psychosis and still experiences
    active psychosis. It appears that when he is in intimate relationships, this
    can be a destabilizer for him where it will elicit more of these paranoid
    delusions, which then lead him to act out in an impulsive and violent manner
    towards his partner.

[17]

Dr. Benassi stressed the need to be able to intervene
    quickly to manage risk and described the challenges of attempting to do so by
    resort to the
Mental Health Act
, R.S.O. 1990, c. M.7 (
MHA
).

[18]

The Board considered the appellants evidence and
    came to the same conclusion. It found that the appellant was over-confident in
    his ability to self-diagnose and would not recognize his symptoms if he
    decompensated. He was suboptimally treated under the care of his family
    physician and would not consent to an appropriate dosage of medication.
    Additionally, the appellant has a history of withholding information. He gave
    inconsistent answers about his working hours, the frequency at which he sees
    his doctor, withheld that he has two pharmacies dispensing his drugs, and that
    he had a new intimate partner. The Board expressed concerns about the appellants
    ability to mask his symptoms and convince doctors that he is not unwell.
    Finally, it found that the appellant takes no responsibility for his actions,
    blaming alcohol or his partner for his offences. The Board concluded that the
MHA
is not sufficient to manage the appellants risk because by the time the
    unwellness is obvious, the appellant would be well on his way to
    decompensation and violence.

Analysis

[19]

The appellant argues that the Board erred in
    finding that he was a significant threat to the safety of the public by placing
    undue focus on the existence of a major mental illness and giving insufficient
    attention to the fact that he had been able to live peacefully for four years
    on bail, despite the existence of a mental disorder.

[20]

We disagree. The Board described the issue before
    it as whether the appellant is a significant risk to the community in the first
    paragraph of its decision. After discussing the evidence, it concluded
that Mr. Marfo poses a significant threat
    to the safety of the public as enunciated in [
Winko
    v. British Columbia (Forensic Psychiatric Institute),

[1999] 2 S.C.R. 625]
.
The psychiatric evidence that the Board accepted went beyond the
    existence of psychiatric disorders; it related those disorders to the
    appellants history of intimate partner violence and identified the significant
    risk of further intimate partner violence, should the appellant find himself in
    a committed or cohabiting relationship. The Board cited the correct test and
    applied it. It did not ignore the appellants four years on bail.

[21]

We do not accept the appellants argument that
    the Board should not have considered the reports of Dr. Klassen, as his reports
    were prepared for the court proceedings in relation to the index offences. In
    any event, in light of the Boards acceptance of the evidence of Dr. Benassi,
    the alleged error had no impact on the result.

[22]

The appellant also argues that the Board failed
    to give meaningful consideration to a conditional discharge, and that its
    decision not to grant one was unreasonable. We disagree. It is convenient to
    discuss both arguments together.

[23]

The Board noted that if it found the appellant
    to be a significant risk, the issue was the necessary and appropriate
    disposition. The Boards express discussion of a conditional discharge was
    limited to noting that the Crown and Hospital took the position that one would
    not be appropriate, and that the appellant requested, in the alternative, that
    a conditional discharge be granted. As the appellant correctly points out, the
    Boards analysis section does not use the words conditional discharge.

[24]

The Board is an expert tribunal. It noted that
    the parties took positions on a conditional discharge, and we are not prepared
    to conclude that the Board lost sight of the issue. Rather, read as a whole, it
    is clear from the Boards reasons that it decided not to grant a conditional
    discharge because it would not be appropriate to do so. The factors it referred
    to in fashioning a disposition that was necessary and appropriate include those
    relevant to why a conditional discharge was rejected. For example, the Board
    found that, in this case, the
MHA
was insufficient to protect public
    safety. This court has held that the need to be able to intervene in a timely
    fashion and the adequacy of the
MHA
regime in a specific case are
    relevant considerations when deciding whether a conditional discharge is
    appropriate:
Davies (Re)
, 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras.
    28-32.

[25]

In light of the appellants history of three
    sets of violent offences  one committed while the appellant was under the
    Boards jurisdiction but had been permitted to live in the community, and another
    within a year of his absolute discharge  and the psychiatric evidence that it
    accepted, the Boards finding that there was a need to be able to intervene
    quickly and thus not to grant a conditional discharge was reasonable, even taking
    into account the appellants apparent stability while on bail. This court should
    be slow to second guess the Boards expert opinion about the appellants risk
    level and how it is best managed:
Fotiou (Re)
, 2020 ONCA 153, at para.
    14.

Conclusion

[26]

For these reasons, the appeal is dismissed.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 7084421 Canada Ltd. v. Vinczer,
    2021 ONCA 497

DATE:

20210706

DOCKET: M52283 (C68637)

Huscroft, Roberts and Zarnett
    JJ.A.

BETWEEN

7084421 Canada Ltd.

Plaintiff

(Respondent/Responding Party)

and

Attila Vinczer, Peter Vinczer
    and Katalin Vinczer

Defendants

(Appellants/Moving Parties)

Attila Vinczer, acting in person, on
    behalf of the appellants

Gerald Anthony, for the respondent

Heard: July 2, 2021 by videoconference and
    released orally

REASONS FOR DECISION

[1]

The appellants move to set aside the order of Benotto J.A. dated
    February 26, 2021 and request leave to bring this motion. They raise a single legal
    argument. They submit that the effect of her order was to terminate their
    appeal, and that such an order could only be made by a panel, not a single
    judge. We disagree.

[2]

As the appellants did not perfect their appeal within the time
    prescribed by the order of Brown J.A. dated December 17, 2020, the Registrar
    made an order on January 27, 2021 dismissing the appeal as required by r.
    61.13(3.1) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194.

[3]

The appellants motion before Benotto J.A. sought to set aside the
    Registrars dismissal order. A single judge has jurisdiction to determine such
    a motion under r. 61.16(5). The appellants motion also sought leave to make
    that request. The requirement for leave was set by the order of Brown J.A.
    which specifically stated that leave could be granted by a judge.

[4]

Benotto J.A. dismissed the appellants motion. Just as she had
    jurisdiction to grant the requested relief if she had considered it appropriate
    to do so, she also had jurisdiction to refuse it, leaving the order of the
    Registrar dismissing the appeal in effect. We see no error in her decision.

[5]

The appellants motion is therefore dismissed.

[6]

The respondent brought a cross-motion for various relief. To the
    extent that the cross-motion requests dismissal of the appellants motion it is
    moot in light of the disposition above. To the extent that it seeks other
    relief related to the mortgaged properties and continued litigation by the
    appellants, it is inappropriate for this court to address those matters as
    there is no appeal pending in this court. Those aspects of the cross-motion are
    dismissed without prejudice to the respondents ability to seek such relief in
    the Superior Court.

[7]

The appellants shall pay costs to the respondent
    in the sum of $1,500, inclusive of disbursements and applicable taxes.

Grant
    Huscroft J.A.

L.B.
    Roberts J.A.

B.
    Zarnett J.A.