COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shiwprashad, 2015 ONCA 577

DATE: 20150820

DOCKET: C57684

Weiler, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kemchand Shiwprashad

Appellant

Najma Jamaldin, for the appellant

Stacey Young, for the respondent

Heard: June 2, 2015

On appeal from the conviction entered on March 8, 2015 by
    Justice Hugh K. Atwood of the Ontario Court of Justice.

Weiler J.A.:

[1]

The appellant, a permanent resident of Canada, pleaded guilty to the
    charge of robbery and was subsequently deported. One of the requirements for a
    court to accept a plea of guilty is that the accused understand the nature and
    consequences of his plea: s. 606(1.1)(b)(ii) of the
Criminal Code
.
    The appellant argues that he did not understand the consequences of his plea
    because he did not know he would be deported if he pleaded guilty. In this
    regard, the appellant alleges that there was a duty on the part of counsel to
    inform him of the immigration consequences of his plea prior to his pleading
    guilty and, since this was not done, he alleges ineffective assistance of
    counsel.

[2]

In addition, the appellant challenges the constitutionality of s.
    606(1.2) of the
Criminal Code,
which states: The failure of the court
    to fully inquire whether the conditions set out [for a valid plea] in
    subsection (1.1) are met does not affect the validity of the plea. The
    appellant alleges that this section violates ss. 7 and 15(1) of the
Charter
and is not saved under s. 1.

[3]

Having regard to the fresh evidence filed, I am satisfied the appellant
    knew that deportation was a potential consequence of his guilty plea although
    he may not have appreciated precisely how limited his options were to avoid
    that consequence. While the appellant may not have been aware of the precise
    extent of his jeopardy at the time he pleaded guilty, he knew that deportation
    was a possible consequence. Thus, even assuming that the appellants lawyer had
    a duty to advise him or to ensure that he obtained advice concerning the
    immigration consequences prior to his plea, on the facts of this case, the
    failure of counsel to do so did not result in a miscarriage of justice. The
    constitutional issue respecting s. 606(1.2) does not arise on these facts. Accordingly,
    I would dismiss the appeal.

A.

facts

(1)

Events Prior to the Plea

[4]

The appellant was born on August 16, 1970 in Guyana and is now almost 45
    years old. He came to Canada with his family as a young man and lived here as a
    permanent resident for approximately 23 years prior to his deportation on
    February 11, 2014.

[5]

Prior to his conviction for robbery, the appellant had 14 entries on his
    criminal record, including convictions for assault and threatening death.

[6]

His last conviction, entered on October 20, 2008, was for sexual interference
    and sexual exploitation in relation to an incident involving his 15-year-old
    stepdaughter, to which he pleaded guilty. On the conviction for sexual
    interference, the appellant received a 12 month conditional sentence, in
    addition to 100 days of pre-sentence custody. A 90-day intermittent sentence
    was imposed for the sexual exploitation conviction.

[7]

On July 8, 2009, as a result of the sexual interference conviction, the
    appellant was reported as inadmissible to Canada on the basis of serious
    criminality pursuant to s. 36(1) of the
Immigration and Refugee Protection
    Act,
S.C. 2001, c. 27 (
IRPA
).
[1]
A removal order was issued on November 23, 2009. The appellant appealed to the
    Immigration Appeal Division of the Immigration and Refugee Board of Canada.
[2]

[8]

On January 28, 2011, a four-year stay was granted on the removal order.

[9]

As part of the stay, the appellant was required to report to the
    Canadian Border Services Agency (the Agency) and do the following things,
    among others:

1)

Not commit any
    criminal offence;

2)

If charged with a
    criminal offence, immediately report that fact in writing to the Agency;

3)

If convicted of a
    criminal offence, immediately report that fact in writing to the Agency and the
    Immigration Appeal Division;

4)

Report to the Agency
    in person six months from the hearing and every six months thereafter and hand
    in a written report respecting employment and living conditions.

[10]

At
    the end of the stay order is the following warning:

IMPORTANT
    WARNING

This stay of removal is cancelled and your appeal is terminated
    by operation of law and you may be removed from Canada, if you are convicted of
    another offence referred to in subsection 36(1) of the
Immigration and
    Refugee Protection Act
(sentence of more than six months imposed or
    punishable by a term of imprisonment of at least ten years) before your case
    has been finally reconsidered.

[11]

The
    appellant, who is illiterate, had this warning read to him by his immigration
    consultant, Mr. Ramkissoon, and was warned he could not get into any trouble or
    the stay of his deportation would be cancelled.

[12]

The
    appellant attended every six months at Mr. Ramkissoons office following the
    hearing in order to have him prepare the paperwork for the written report the
    appellant handed in to the Agency. Each time, Mr. Ramkissoon asked him if he
    had been in any trouble with the law. The last date he reported prior to his
    conviction was January 3, 2013.

(2)

The Plea and Events Prior to Sentence

[13]

On
    February 5, 2013, the appellant was charged and arrested for robbery,
    threatening death and assault with a weapon. He was alleged to have threatened
    his mother at knifepoint for $40.

[14]

The
    appellant retained the same counsel who represented him on his sexual
    interference and sexual exploitation charges and instructed him to pursue
    discussions respecting a guilty plea.

[15]

The
    matter was pre-tried. The pre-trial judge indicated that a sentence of two
    years on a guilty plea would be appropriate. Defence counsel did not accept
    this recommendation.

[16]

On
    March 8, 2013, the appellant pleaded guilty to one count of robbery, with the
    understanding that the facts would be read in at a later date and the other
    charges would be withdrawn.
[3]
Defence counsel advised the court that he had reviewed the plea inquiry with
    the appellant and that the appellant was entering his plea voluntarily,
    waiving his right to a trial and understands [that the court is] not bound by
    anything we say.

[17]

Crown
    counsel indicated she would be seeking a three year sentence of imprisonment
    and would like to proceed on an agreed statement of fact. The matter was put
    over to allow Crown counsel to review a videotaped statement given by the
    appellants mother to police and to speak to the appellants mother and sister,
    both of whom provided letters of support on behalf of the appellant.

[18]

On
    March 28, 2013, the Crown outlined the allegations against the appellant
    including the aggravating circumstances that he had threatened to kill his
    mother, threatened his sister-in-law at the same time, and threatened to burn
    the house down. The appellant indicated that he was not prepared to acknowledge
    all of the facts as set out by the Crown. As such, the matter was adjourned to
    April 30, 2013 for a
Gardiner
hearing for the Crown to prove the
    aggravating circumstances. The appellant continued to be detained in custody
    pending the hearing and applied for bail.

(3)

The Bail Hearing

[19]

The
    bail hearing took place on April 22, 2013, and the sentencing judge heard
    almost a full day of evidence, including the evidence of the appellants mother
    on behalf of the defence.

[20]

In
    cross-examination, the Crown played the mothers videotaped statement to the
    police, which the mother adopted as true. In that videotaped statement, the
    appellants mother makes reference to her sons immigration status. She advised
    the police that the appellant had problems with his childs mother, and he
    had a little time to serve. She explained that he served his time, and now
    he has immigration problems. When the police asked for clarification, the
    appellants mother added: he has immigration problem  he will get deport  He
    is not a citizen, hes not landed, hes not a citizen.

[21]

The
    Crown also referred to the appellants immigration status in closing
    submissions, noting that [i]t would seem that there are people here who rely
    on [the appellant] and perhaps theres some concern of  him being in this
    situation and what effect, if any that might have on  his status in Canada.
    The Crown added: [The appellant] has children here, he certainly has roots
    here. Hes lived here for a long, long time, so I can understand their
    concern. Nonetheless, the Crown urged the court to deny bail on the basis that
    the appellants violence was escalating and he was likely to reoffend.

[22]

Defence
    counsel also made submissions at the bail hearing but he did not mention the
    appellants immigration problems. During the course of his submissions defence
    counsel stated that the appellant had a drug problem that would be addressed if
    he were released.

[23]

Although
    the sentencing judge was satisfied that there were some real benefits to the
    defence for release, including the appellants immigration issues, he ultimately
    accepted the Crowns submission that the appellant should be detained on the basis
    that he is likely to reoffend. Bail was denied.

[24]

After
    the sentencing judges ruling, defence counsel indicated that a
Gardiner
hearing
    would not be necessary. The court and counsel agreed to proceed with sentencing
    on April 30, 2013.

(4)

Sentence and Events Following Sentencing

[25]

On
    April 30, 2013, the appellant was sentenced to four months and 22 days
    imprisonment, in addition to credit for pre-trial custody, or a sentence
    equivalent to nine months imprisonment. Although no mention was made of
    immigration consequences at the time of sentencing, those present in court were
    also present during the bail hearing and had heard the appellants mother
    mention deportation in her videotaped statement. They could not help but be
    aware there would be immigration consequences to the appellant being found
    guilty of robbery.

[26]

On
    May 7, 2013, the appellant was reported inadmissible due to serious criminality
    pursuant to s. 36(1)(a) of the
IRPA,
and on June 4, 2013, the stay of
    the 2009 removal order was cancelled and the appellants appeal was terminated.
[4]
A warrant for the appellants arrest was executed on July 30, 2013, while he
    was in custody.

[27]

The
    appellant completed his sentence on August 3, 2013, but was placed on an immigration
    hold. Notice of the decision cancelling the stay, dated August 16, 2013, was
    given to the appellant. On September 24, 2014, the appellant filed a judicial
    review application. The application was unsuccessful. A further application to
    the Federal Court of Canada to stay the removal order was also unsuccessful.

[28]

The
    appellant was deported as scheduled on February 11, 2014.

B.

Issues

[29]

The
    following issues are raised on this appeal:

1)

Did the appellant receive ineffective assistance of counsel such that
    his guilty plea was uninformed?

2)

Does the plea inquiry in s. 606(1.2) of the
Criminal Code
violate
    ss. 7 and 15 of the
Charter?

C.

Analysis

[30]

On
    appeal, the appellant seeks to have his guilty plea set aside on the basis that
    he received ineffective assistance of counsel because he was not properly
    informed of the immigration consequences of the plea. He also argues that the
    plea inquiry in s. 606(1.2) of the
Criminal Code
violates ss. 7 and 15
    of the
Charter
because it does not require a sentencing judge to
    inquire whether or not the accused is aware of possible immigration
    consequences of the plea.

[31]

I
    will address the ineffective assistance claim first.

(1)

Ineffective Assistance of Counsel

(a)

The Test for Ineffective Assistance of Counsel

[32]

In
R. v. Joanisse
(1996)
,
102 C.C.C. (3d) 35 (Ont. C.A.), this
    court held at p. 59 that there are three components to a claim of ineffective
    assistance of counsel:

1.) The appellant must establish the facts on which the claim
    is based;

2.) The appellant must establish that the representation
    provided by trial counsel was incompetent; and,

3.) The appellant must establish that the incompetent
    representation resulted in a miscarriage of justice.

[33]

For
    the reasons that follow, it is my view that the appellant has failed to
    establish the facts on which his claim is based or that a miscarriage of
    justice has occurred.

(b)

The Facts

(i)

The appellants evidence

[34]

In
    his affidavit filed as fresh evidence on this appeal, the appellant
    acknowledges that after he received the stay of the removal order, he was told
    very clearly by Mr. Ramkissoon that [he] could not get into any more trouble or
    else [he] would be deported.

[35]

However,
    later in his affidavit, he deposes that after he was charged with robbery, he
    received conflicting advice from defence counsel about the consequences of his
    criminal activity. The appellant claims that defence counsel told him he would
    only receive 60-90 days on weekends on a sentence and that he was advised to
    take the deal so that [he] could get back to work. The appellant insists that
    he informed defence counsel of his immigration problems, but counsel advised
    him that if [he] received a sentence of less than six months jail, immigration
    could not bother [him].

[36]

The
    affidavit further deposes that the appellant entered the guilty plea because of
    defence counsels advice, and that he did not seek additional advice from his
    immigration lawyer because he believed defence counsel was better equipped to
    advise him on the consequences of the plea. He states:

On March 5, 2013 I entered a guilty plea. I pleaded guilty
    because of what [defence counsel] told me about getting 90 days to be served on
    weekends. I believed him when he told me that as long as I did not get more
    than six months I would not get deported. I did not call my immigration counsel
    to confirm this advice. I thought that my criminal lawyer would know better
    than my immigration lawyer what the consequences of my plea would be.

[37]

The
    Crown cross-examined the appellant on his affidavit and asked him when,
    exactly, he told defence counsel about his immigration issues and the
    requirement that he had to report to the Agency every six months. The appellant
    testified that he informed defence counsel about these issues sometime in 2009,
    after his conviction for sexual interference and sexual exploitation. However,
    when advised by the Crown that the removal order was dated January 2011, the
    appellant changed his answer to say that he told defence counsel about his
    immigration problems after the removal order was stayed.

[38]

The
    appellant admitted that he had a copy of the stay order and that Mr. Ramkissoon
    read him the whole order, including the warning that he could be deported if he
    committed further criminal offences. The appellant said he was able to
    communicate with Mr. Ramkissoon without any problems. The appellant further
    conceded that each time he went to Mr. Ramkissoons office to have him prepare
    the paperwork for the report to the Agency, Mr. Ramkissoon asked him if he had
    been in any trouble. The appellant had to have been aware that one of the
    important conditions of the stay was that he not receive further convictions.

[39]

The
    appellant also testified that defence counsel never talked to him about
    immigration prior to his plea on the robbery offence. He alleges defence
    counsel told him he would not have any difficulties with a sentence of 60-90
    days intermittent; promised him this was the sentence he would receive; never
    advised him to see an immigration lawyer; and told him that immigration would
    not bother him. He added, I go with what he said because I trust him as my
    attorney.

[40]

The
    appellant agreed that defence counsel told him he should only plead guilty if
    he was prepared to accept the allegations made by the Crown. The appellant also
    agreed that defence counsel told him he could go to trial, but he insisted that
    defence counsel also told him that if he went to trial, he would still receive
    a sentence of 60 to 90 days to be served on weekends. The appellant also said
    that defence counsel never explained to him that it was up to the sentencing judge
    to determine the sentence or that by pleading guilty he would not have a trial.

[41]

After
    this appeal was perfected, the appellant filed a further short affidavit in
    which he deposes: I would never have pleaded guilty to robbery in Brampton in
    March 2013, if I knew that I would be deported and lose my family and my job.

[42]

The
    Crown objects to the admissibility of this statement but declined to
    cross-examine the appellant further. For the purposes of this appeal, I will
    admit the evidence and consider what weight if any to give it in my analysis.

(ii)

Defence counsels evidence

[43]

Pursuant
    to the ineffective assistance of counsel protocol, the appellants defence
    counsel swore an affidavit dated August 22, 2014.

[44]

In
    his affidavit, defence counsel deposes that he never told the appellant he
    would not be deported if he received a sentence of less than six months. In
    fact, he insists that he was unaware an immigration issue arose after the
    appellants convictions for sexual interference and sexual exploitation. He
    states: Given [the appellants] roots [in the] country over the past 25 years
    (secure full-time employment, two Canadian born children) I had no reason to
    believe he required the assistance of an immigration lawyer.

[45]

In
    cross-examination on his affidavit, defence counsel acknowledged that, having
    represented the appellant previously, he knew the appellant was not a Canadian
    citizen. However, the appellant never told him that he lost his status after pleading
    guilty to the sexual interference charge, nor did he tell him about the removal
    order and stay.

[46]

Defence
    counsel admitted that a general thought about potential immigration
    consequences was triggered when the Crown put its position of a three year
    sentence on the record in response to the appellants guilty plea.

As such, he advised the appellant to seek
    advice from an immigration lawyer. He testified:

I know that a permanent resident certainly would have an
    immigration issue if theyre found guilty of this offense given the penalty for
    robbery  which is why I told him to seek immigration counsels advice if he
    had any concerns about that. I do not know if he did or didnt, but he came
    back to me and said that he wanted to proceed with it.

[47]

When
    defence counsel was reminded his affidavit said that he was unaware of any
    immigration issues, he explained that his affidavit referred only to his lack
    of awareness of the deportation issues that arose following the 2008
    convictions, and had he known about those issues, he would have set a date for
    trial.

(iii)

Findings on fresh evidence

[48]

I
    do not accept aspects of defence counsels evidence. He denies being aware of
    any immigration issues in the sense that the appellant was subject to
    deportation, yet he saw the appellants mothers videotaped statement in which
    she told police that the appellant was going to be deported. He also heard the
    Crowns comments at the bail hearing respecting the immigration concerns of the
    appellants family, and he was aware the sentencing judge referred to the
    appellants immigration status in his ruling on the bail application.

[49]

Defence
    counsel says that he had enough of a concern about the Crowns position
    concerning a three year sentence on the appellants immigration status to tell
    him to seek advice from an immigration lawyer. Yet he acknowledges he never
    followed up with the appellant and asked him whether he had sought immigration
    advice.

[50]

Quite
    apart from the Crowns position that a three year sentence was warranted when
    the appellant pleaded guilty on March 8, 2013, the appellants immigration
    status was a relevant consideration at his sentencing hearing. In
R. v. Pham,
2013 SCC 15, [2013] 1 S.C.R. 15, at paras. 6-24, the Supreme Court held
    that providing the sentence imposed is still fit, an appellate court can vary
    an otherwise fit sentence where the sentencing judge did not take account of
    immigration consequences having regard to the principles of individualization
    and the sentencing objective of assisting in rehabilitating offenders. The
    Courts judgment in
Pham
was given the same day the appeal was heard,
    on January 18, 2013, and the reasons were delivered March 14, 2013. The
    appellant was sentenced on April 30, 2013.

[51]

If
    defence counsel told the appellant to seek immigration advice, it would have
    made sense that he follow up and ask the appellant if he had obtained that
    advice in order to make what use he could of it on sentence. Defence counsel
    acknowledged that he did not do this.

[52]

I
    would also reject aspects of the appellants evidence, namely, that defence
    counsel promised him he would receive a sentence of 60 to 90 days and told him
    he would not be deported if he pleaded guilty and received a sentence of less
    than six months. There are four reasons for my conclusion.

[53]

First,
    counsel are not likely to make such promises especially when a joint submission
    as to sentence is not being made, the accused has a criminal record for other
    offences involving violence, and the offence to which the accused is pleading
    guilty is an escalation of violence.

[54]

Second,
    the appellant was not unfamiliar with the court system. He had pleaded guilty
    to each of his 14 prior convictions. In these circumstances it is difficult to
    understand how the appellant could not know that when he pleaded guilty to this
    robbery the sentencing judge was not bound by defence counsels submission as
    to sentence.

[55]

Third,
    defence counsel told the court, in the appellants presence, that the appellant
    knew the sentencing judge would not be bound by his submission as to sentence.
    The appellant does not allege that he did not hear defence counsel make this
    statement, nor does he suggest that he did not understand what was meant.

[56]

Fourth,
    I accept defence counsels evidence that it is not his practice to give
    immigration advice and that he did not do so on this occasion. Defence counsel
    consistently ignored the appellants immigration status. If defence counsel had,
    in fact, promised the appellant he would not be deported if he received a
    sentence of less than six months, he most certainly would have suggested the sentencing
    judge consider the appellants immigration status as a factor in sentencing,
    which he did not do.

[57]

Based
    on my analysis of the evidence above, the appellant has not established the
    facts on a balance of probabilities to support his claim that defence counsel
    made the promises he did.

(c)

Incompetence of Counsel

[58]

In
Joanisse,
at p. 61, this court stated:

[I]ncompetence is determined by a reasonableness standard
    measured by reference to counsels performance in the particular circumstances
    of the case from the point in time when counsel made the decisions challenged
    on appeal. The wisdom of hindsight has no place in this assessment. This
    approach recognizes that in many situations counsel will have a wide range of
    options any of which, if taken, will constitute competent representation. Appellate
    courts must give deference to choices made by counsel and the competence
    assessment must be informed by a presumption in favour of competence.

[59]

In
    this case, the appellant submits that the presumption of deference has been
    rebutted. Defence counsel had represented the appellant before the robbery and
    knew that he was not a Canadian citizen. The provisions of
IRPA
are
    clear and explicit in defining the removal consequence on the appellants
    conviction for an offence punishable by a sentence of ten years or more, and
    robbery, being an offence punishable by life imprisonment, is such an offence.
    While immigration law can be complex, in this case defence counsel could have
    determined that the appellants plea would make him eligible for deportation by
    reading the text of the statute. This provision is not recent. Thus, even if
    the appellants evidence is rejected, the appellant submits that defence
    counsels failure to provide any immigration advice
prior to his plea
amounts
    to ineffective assistance.

[60]

The
    Crown argues that immigration consequences, such as deportation, are a
    collateral, not direct, consequence of a guilty plea and have no bearing on the
    requirement that an accused understand the consequences of his guilty plea
    within the meaning of s. 606 (1.1)(b)(ii) of the
Criminal Code
.
    Immigration consequences are only a valid consideration on sentencing. The
    Crowns position is that because deportation is a collateral consequence of a
    guilty plea, current Canadian jurisprudence does not require counsel to give
    advice respecting the collateral consequences of a plea:
R. v. Tyler,
2007
    BCCA 142, 237 B.C.A.C. 312;
R. v. Hunt,
2004 ABCA 88, 346 A.R. 45;
R.
    c. Nersysyan,
2005 QCCA 606.

[61]

The
    appellant submits that the reasonableness standard for the level of competence for
    a criminal lawyer carries with it a duty to inform him of the consequences of a
    guilty plea on his immigration status prior to entering the plea. Counsel for
    the appellant urged this court to adopt the approach of the United States
    Supreme Court, which held in
Padilla v. Kentucky
, 559 U.S. 356 (2010),
    that the failure of criminal defence lawyers to advise noncitizen clients about
    the immigration consequences of guilty pleas constitutes ineffective assistance
    of counsel. Prior to this decision, defence counsel in the United States were not
    required to advise clients of the collateral consequences of a guilty plea such
    as loss of government benefits. Deportation was considered a collateral
    consequence.

[62]

In
Padilla,
Stevens J. for the majority acknowledged that immigration law
    can be complex and is a legal speciality of its own. He held that the duty on a
    defence counsel will vary depending on whether the law is clear or whether the
    consequences are unclear or uncertain. Where the impact of the law is not
    succinct and straightforward, the lawyer need do no more than advise a
    noncitizen client that pending criminal charges may carry a risk of adverse
    immigration consequences (footnotes omitted): at p. 369. However, where the
    law and deportation consequences are truly clear, criminal defence lawyers
    have a duty to inform clients that deportation will result from a conviction:
    p. 369. Thus, the court held at pp. 373-374 that, when dealing with a
    noncitizen who clearly faces a risk of deportation, counsel cannot remain
    silent:

The severity of deportation  the equivalent of banishment or
    exile  only underscores how critical it is for counsel to inform her
    noncitizen client that he faces a risk of deportation.

It is our responsibility under the Constitution to ensure that
    no criminal defendant  whether citizen or not  is left to the mercies of
    incompetent counsel. To satisfy this responsibility, we now hold that counsel
    must inform her client whether this plea carries a risk of deportation.
    [Citations omitted; footnotes omitted.]

[63]

Unlike
    in
Padilla,
where a wealth of evidence was filed by various
    organizations, in this case,

no affidavit evidence was filed from any defence
    counsel or association such as the Criminal Lawyers Association as to the
    standard of care expected of a criminal defence lawyer in Canada. However, as
    Gary R. Clewley, Paul G. McDermott and Rachel E. Young observe in their text
Sentencing:
    The Practitioners Guide,
looseleaf (Toronto: Canada Law Book, 2015), at
    para. 1.330, [a]wareness of immigration issues on the part of criminal lawyers
    is becoming more important for several reasons, namely the increasing number
    of new Canadians; the increasing number of self-represented or
    under-represented accused; the increasing number of sentences with minimum jail
    terms; and the amendments to immigration legislation reducing the length of
    sentence required to remove appeal rights of permanent residents from a removal
    order.

[64]

Perhaps
    in recognition of the increased importance of the intersection of criminal law
    and immigration consequences, LawPRO, the professional indemnity corporation
    for Ontario lawyers, has advised criminal lawyers to identify clients
    immigration status before entering plea and/or sentence negotiations in order
    to avoid exposure to possible claims.
[5]
Similarly, Mario D. Bellissimo, in his text, Immigration Criminality and
    Inadmissibility, looseleaf (2014), (Toronto: Carswell, 2014), at p. 10-46
    advises lawyers to obtain a written direction from a client prior to any guilty
    plea, and to reference the possible immigration consequences of a plea in that
    direction. Further, an article for the Criminal Justice Section of the Ontario
    Bar Association written in the wake of the
Pham
decision states that
    it is essential that counsel be aware of the immigration status of any
    client. The author suggests that counsel will well be advised to discuss the
    immigration consequences of matters with a member of the immigration bar and to
    refer clients accordingly.
[6]
Clewley, McDermott & Young also suggest that defence counsel make sure
    that accused people are aware of the immigration implications before they are
    arraigned at trial or enter guilty pleas.
[7]

[65]

In
    this case I do not have to determine whether the failure to ascertain the
    effect of a guilty plea on the clients immigration status prior to plea
    constitutes incompetence of counsel, and I do not propose to do so having
    regard to the lack of evidence as to the standard of care in Canada, and my
    conclusion explained below that even if there was ineffective assistance of
    counsel, there was no miscarriage of justice. As this court stated in
Joanisse,
at p. 62:

Counsels failure to meet competence standards does not
    automatically lead to a reversal of a conviction. The ultimate purpose of the
    appellate inquiry is not to grade counsels performance, but to determine
    whether a miscarriage of justice occurred. The third and final component of
    this courts approach to allegations of incompetent representation at trial
    presumes a finding of incompetence and looks to the effect of that incompetence
    on the fairness of the trial proceedings. This inquiry examines the nature and
    seriousness of counsels errors both from the perspective of the reliability of
    the verdict and the adjudicative fairness of the process leading to the
    verdict. If counsels incompetence rendered the verdict unreliable or the
    process unfair, then the appellant has demonstrated that he received
    ineffective assistance resulting in a denial of the right to a fair trial and a
    miscarriage of justice.

(d)

Miscarriage of Justice

(i)

The verdict was reliable

[66]

In
    the appeal before us, the appellant has raised, for the first time on appeal, a
    version of the facts that is completely at odds with the facts to which he pleaded
    guilty. It is submitted that the appellant was simply demanding his own money
    back and that he could not, therefore, commit the offence of robbery. This
    argument is not tenable in law. The appellant gave his mother $250 (either as
    rent he owed her or as a gift) and then demanded the money back. She returned
    $210, and he demanded the other $40. A gift requires three things: intention by
    the donor to make a gift; sufficient delivery of the gift; and acceptance by
    the donee:
McNamee v. McNamee,
2011 ONCA 533, 106 O.R. (3d) 401, at
    para. 24. Once these three things happen, the gift is complete, property in the
    gift passes to the donee, and the donor of the gift has no right to revoke it
    or take it back:
Berdette v. Berdette
(1991), 3 O.R. (3d) 513 (C.A.),
    p. 520, leave to appeal to S.C.C. refused, [1991] S.C.C.A. No. 306. The money
    was no longer the appellants money. Quite apart from the appellants pleading
    that he had a viable defence, defence counsel was never asked in
    cross-examination whether he should have explored such a potential defence with
    the appellant. Defence counsel did not fall below the reasonable standard
    required of counsel in this regard.

[67]

Moreover,
    the issue of the knife and the manner in which the appellant held it was
    thoroughly explored at the bail hearing and the
Gardiner
hearing was
    subsequently waived. The recast version of the facts on appeal, that the
    appellant was peeling vegetables and his mother misunderstood his gesture with
    the knife is simply not credible and ignores the threats the appellant made as
    well as his subsequent use of a cleaver in the presence of his mother and his
    sister-in-law.

[68]

There
    is no credible or reliable evidence to suggest that the appellant did not
    understand the nature of the charge against him or the facts to which he was
    pleading guilty. The verdict is reliable.

(ii)

The process was not unfair

[69]

Both
    the appellant and defence counsel swore that a plea of guilty would not have
    been entered had they known the appellant would be deported. Rather, the case
    would have gone to trial. As a result, the appellant submits that the plea was
    not informed and he did not understand the consequences of his plea.

[70]

In
    deciding whether the appellant understood the consequences of his guilty plea,
    the Supreme Court of Canadas decision in the oft-cited case of
R. v. Lyon
,

[1987] 2 S.C.R. 309, is instructive. In
Lyon
, the appellant, who
    was 16 years old at the time, elected to be tried by judge alone and then
    pleaded guilty to breaking and entering a dwelling house, using a weapon or
    imitation thereof in committing sexual assault, using a firearm while
    committing an indictable offence, and stealing property worth in excess of
    $200. Just before sentencing, the Crown told defence counsel that it might
    bring a dangerous offender application. The sentencing hearing was adjourned. The
    Crown brought its application, and the accused was found to be a dangerous
    offender and sentenced to a period of indeterminate detention. The Court of Appeal
    dismissed his appeal.

[71]

On
    appeal to the Supreme Court, one of the arguments was whether, given the
    serious consequences of a dangerous offender application, the Crown ought to
    have advised the appellant of its intention to bring the application prior to
    his election and plea so as to enable him to make an informed decision. The
    appellant argued that the Crowns failure to do so violated his rights under s.
    7 of the
Charter.
In dismissing this argument La Forest J., on behalf
    of the majority, explained that in order for a plea to be informed, the
    appellant needs to understand the potential consequences of a guilty plea,
    not the precise consequences of his plea which may be difficult to predict. He
    states at paras. 103, and 106-107:

It seems, therefore, that the only prejudice the appellant can
    claim to have suffered is that had he been forewarned of the Crowns intention
    to make a Part XXI [dangerous offender] application, he might have elected a trial
    by judge and jury rather than by judge alone, or might have pleaded not guilty
    rather than guilty to the charges against him. It seems to me, however, that
    there is a limit beyond which it would be unseemly for courts to inquire into
    or go beyond such decisions of accused persons. For example, I do not think
    it would be proper to inquire into whether and to what extent the absence of
    such notice impaired the ability of the accused to plea bargain effectively,
    for justice should not be, and should not be seen to be, something that can be
    purchased at the bargaining table. Nor do I think it proper to consider that
    an accused might elect a trial by jury in the hope that a jury would be less
    inclined to convict in circumstances where he or she was liable to
    indeterminate incarceration.

It seems to me to be difficult to articulate precisely in what
    sense the liberty interests of the appellant were infringed by the absence of
    notice earlier than is statutorily provided for. It is nowhere alleged, here or
    in the courts below (where this issue was not even addressed), that the
    appellant did not appreciate the
potential
consequences of his plea; indeed, Part XXI itself can be seen to provide
    notification that the dangerous offender provisions are invocable if
    "serious personal injury offences" are committed by an accused. Nor
    is it alleged, for example, that the accused was unfairly taken by surprise by
    the application, that he was not represented by competent counsel, or that
    counsel pressured him to plead guilty against his will, etc.  Rather, the
    complaint appears simply to be that the appellant did not know that the Crown
    was actually contemplating making a Part XXI application.
[Citations
    omitted.]

[72]

In
    this case, the appellant was already subject to deportation as a result of his
    prior plea and conviction on the charges of sexual exploitation and sexual
    interference. He had a copy of the order staying his deportation. He had had it
    read to him by his immigration counsel Mr. Ramkissoon. He had been told that if
    he was convicted of an offence punishable by imprisonment for ten years or more
    the stay order would be cancelled. Although he may not have appreciated that
    robbery is an offence punishable by imprisonment for ten years or more, he must
    be taken to know that robbery is a serious offence. He also knew that one of
    the conditions of his stay order was that he not receive a sentence of six
    months or more or the stay would be cancelled and he could be subject to
    deportation. By instructing defence counsel that he wished to plead guilty to
    the robbery charge, although he knew the Crown would be seeking a sentence of
    more than six months, the appellant chose to assume the risk that he would be
    deported.

[73]

In
    these circumstances, dissatisfaction with the result is not a basis for setting
    aside the appellants guilty plea. Cancellation of the order staying his deportation
    and his subsequent deportation was not an unfair surprise.

[74]

Accordingly,
    the plea was informed, and there was no miscarriage of justice.

D.

Conclusion

[75]

The
    appellant knew he was subject to deportation. He knew that the stay of his
    deportation order would be cancelled if he committed a further criminal offence
    which carries a penalty of ten years or more or if he received a sentence of
    six months or more and that he could be deported. In the circumstances,
    irrespective of whether the appellants counsel fell below the standard
    required of a criminal law defence counsel by not advising the appellant of the
    immigration consequences of his plea, or, by not following up with him if he
    referred him for immigration advice, the appellant understood deportation was a
    potential consequence of his plea, the process was not unfair, and there was no
    miscarriage of justice.

[76]

In
    the circumstances, I need not address the
Charter
argument raised by
    the appellant respecting s. 606(1.2) of the
Criminal Code
.

[77]

I
    would dismiss the appeal.

Released: August 20, 2015

(KMW)

K.M. Weiler J.A.

I
    agree M. Tulloch J.A.

I
    agree K. van Rensburg J.A.

[1]
The punishment for conviction of sexual interference is imprisonment for a
    term of not more than 10 years:
Criminal Code,
s. 151(a). Section 36(1)
    of the
IRPA
, reads in part, A permanent resident .is inadmissible on
    grounds of serious criminality for (a) having been convicted in Canada of an
    offence under an Act of Parliament punishable by a maximum term of imprisonment
    of at least 10 years

[2]
At the time, a person who had been sentenced to a term of imprisonment of less
    than two years could appeal a deportation order to the Immigration Appeal
    Division pursuant to s. 64(1) of the
IRPA
. Section 24 of the
Faster
    Removal of Foreign Criminals Act,
S.C. 2013, c. 16, which came into effect
    on June 19, 2013, and amended s. 64(2) of the
IRPA
,

lowered the
    threshold for loss of appeal rights to six months. Pre-trial custody is
    included in the calculation of a period of imprisonment:
Nguyen v. Canada
    (Minister of Citizenship and Immigration)
2010 F.C. 30 at para. 20.

[3]

Under s. 344(1)(b) of the
Criminal Code
robbery is
    punishable by imprisonment for life.

[4]
The changes to s. 64 of the
IRPA
brought by the
Faster Removal of
    Foreign Criminals Act
apply to those sentenced before June 19, 2013, so
    long as they have not already been referred to the Immigration Appeal Division (IAD).
    The appellant had already been referred to the IAD.

[5]
Katie James and Nora Rock, Can a criminal conviction make your client
    inadmissible for residency/citizenship?, online: LawPRO
<http://www.practicepro.ca/information/doc/conviction_inadmissible.pdf>

[6]
Paul Calarco, June 2013 Appeal Court Review -
R. v. Pham
: Immigration
    Consequences in Sentencing, online: Ontario Bar Association

<
    http://www.oba.org/en/pdf/sec_news_crim_jun13_cal_app.pdf>

[7]
Gary R. Clewley, Paul G. McDermott, Rachel E. Young,
Sentencing: The
    Practitioners Guide,
looseleaf (Toronto: Canada Law Book, 2015), at para.
    1.330.


COURT OF APPEAL FOR ONTARIO

CITATION: Remedy Drug Store Co. Inc. v. Farnham, 2015 ONCA
    576

DATE: 20150819

DOCKET: C59230

Epstein, Pepall and Benotto JJ.A.

BETWEEN

Remedy Drug Store Co. Inc.

Plaintiff (Respondent)

and

Jane Farnham

Defendant (Appellant)

AND BETWEEN

Jane Farnham

Plaintiff by Counterclaim

(Appellant)

and

Remedy Drug Store Co. Inc. and Bruce Moody

Defendants to the Counterclaim

(Respondents)

Matthew P. Sammon and Paul-Erik Veel, for the appellant

David Chernos, for the respondents

Heard: March 9, 2015

On appeal from the order of Justice Graeme Mew of the Superior
    Court of Justice, dated July 25, 2014.

Epstein J.A.:

A.

overview

[1]

On May 8, 2012, the appellant, Jane Farnham, started working for the
    respondent, Remedy Drug Store Co. Inc., as its General Manager and Executive
    Vice President. The employment relationship broke down and came to an end on
    October 28, 2013.

[2]

Leading up to her last day at Remedy, Ms. Farnham forwarded a vast
    number of emails to her personal computer. Further, on her last day of work,
    Ms. Farnham took home with her a volume of printed documents from Remedys
    premises.

[3]

As a result, on November 25, 2013, Remedy commenced an action against
    Ms. Farnham for an injunction, damages and declaratory relief that Ms. Farnham
    had breached her employment contract, her fiduciary duties to the company, and
    her duties of confidentiality. Remedy brought a concurrent motion for interim injunctive
    relief relating to the confidential information Remedy alleged that Ms. Farnham
    had taken from it. Ms. Farnham counterclaimed for damages arising out of the breakdown
    of the employment relationship.

[4]

The parties attempted to settle their differences. A dispute arose over
    whether they reached a settlement agreement and, if so, whether Remedy
    repudiated the agreement. Remedy took the position that it and Ms. Farnham had
    an agreement  one that included a term that a broad forensic sweep of Ms.
    Farnhams personal electronic devices would be conducted to search for Remedys
    confidential information. Ms. Farnham took the position that there was a settlement
    agreement but that it contained no such term. According to Ms. Farnham, she
    only agreed to a simple wipe of her devices of all Remedy information. She did
    not agree that Remedy would be entitled to perform a forensic search of her
    personal computer.  Ms. Farnham also claimed that Remedy had taken steps that
    amounted to a repudiation of the agreement.

[5]

At Remedys request, the motion for an interim injunction was adjourned
    and subsequently resolved.  Remedy then brought a motion to enforce the
    settlement.

[6]

Before the motion judge, success was divided. The motion judge held that
    the parties had entered into an enforceable settlement agreement on the terms
    advanced by Ms. Farnham. In other words, the agreement did not contain the
    forensic sweep term. He then went on to find that Remedy had not repudiated the
    agreement.

[7]

Ms. Farnham appeals. Her primary argument is that the motion judge erred
    in finding that Remedy did not repudiate the settlement agreement.

[8]

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

B.

Background

(1)

Confidential Information

[9]

As previously noted, on her last day of work with Remedy, Ms. Farnham
    deleted thousands of emails from her company computer. She also printed off
    and took various Remedy documents.  Prior to that time, she forwarded over 500
    emails  many of which contained attachments  to her personal computer. Ms. Farnham
    said she felt these steps were necessary for protection against any false
    allegations that may arise out of the end of the employment relationship.  Remedy
    says this information is confidential.

(2)

Settlement Negotiations

[10]

On
    December 25, 2013, the parties started to discuss settlement. Two matters were
    primarily at issue in the discussions: (1) financial and severance terms; and
    (2) the return of the documentation taken and the work to be performed on Ms.
    Farnhams personal technological devices to clear them of Remedys information
    (the IT Issue).

[11]

On
    January 6, 2014, Ms. Farnham emailed a settlement proposal to Remedy. In her
    email, Ms. Farnham addressed the IT Issue. She wrote:

Regarding the emails, I will engage a third party IT consultant
    who has been recommended by my lawyer to wipe, purge and certify my devices
    (laptop and iPad) as well as my Yahoo account clean of all Remedy documents. I
    will then swear an affidavit stating that I have returned all documents and
    emails and that I have never and will never do anything to harm you or your
    business. The IT consultant can swear an affidavit confirming these steps have
    been completed. I will do this at my expense. I am suggesting that we use the
    IT consultant recommended by my lawyer as his quote is less than a quarter of
    the quote provided by Remedys lawyers IT consultant.

The next day, Remedy responded by email, saying only
    the following with regard to the IT Issue: The IT firm selected by my law firm
    will do the work at your cost.

[12]

By
    return email, Ms. Farnham indicated that she would pay $2,500 towards the work
    performed by Remedys IT consultant. Remedy responded with some concessions in
    relation to the financial and severance terms, but was silent on the IT Issue.
    On January 9, 2014, Ms. Farnham said: we have an agreement.

[13]

Remedys
    lawyers approached Ms. Farnhams lawyer to draft formal minutes of settlement.
    Although Ms. Farnhams lawyer took the position that minutes were unnecessary
    because the settlement agreement was memorialized in the emails exchanged
    between the parties, he agreed to consider recommending minutes to Ms. Farnham
    that minutes be prepared, as long as they reflected the agreement.

[14]

Remedys
    lawyers prepared draft minutes of settlement. They stated that Ms. Farnham
    would provide her yahoo email account and password and Paragraph 7 of the draft,
    entitled Confidential Information, read in the relevant part: [The IT
    consultant] will take the necessary steps to search and permanently delete all
    of Remedys information from [Ms. Farnhams] devices and the yahoo email
    account by taking the following steps: (1) forensic collection; (2) keyword
    searching; (3) keyword hit reviews; (4) preparing native file date; and (5)
    wiping devices. Ms. Farnham took issue with this sentence, saying it did not
    reflect the simple data wipe the parties had agreed to.

[15]

Under
    the minutes, the motion for injunctive relief would be withdrawn following
    delivery of the password and the devices to Remedy.

[16]

Various
    accusatory emails between the parties ensued. For example, on January 20, 2014,
    Mr. Moody, Remedys President and Chief Executive Officer, wrote to Ms. Farnham
    insisting on Remedys interpretation of the IT Issue:

I will not budge on the sweep of your systems being conducted
    in the manner detailed by my lawyers in previous communications. Again, you
    started this process when you stole the highly confidential and highly damaging
    information. I will maintain my rights to gain as much peace of mind as
    possible through an IT sweep process defined by my lawyers and paid by you. If
    you wish to leave lawyers out, stop going to yours and settle. Your lawyer has
    all the information required for you to settle. At this point, I am happy to
    continue and press forward with an injunction and any other legal avenues
    available to me.

[17]

Additionally,
    on January 21, 2014, Mr. Moody wrote:

The purpose of this email is to be very clear and speak
    directly to you.  I will not accept an agreement that restricts me in any
    fashion as stated above [the IT sweep].  In the final analysis, if you are
    indeed sincere in your words of peace and moving on; you will accept my
    position on these two items which are very reasonable and appropriate given
    your actions.  Alternatively, we will have to go through the courts as it will
    become clear, based on your unwillingness to move that you do in fact have
    something to hide.  You are providing me with no alternative other than taking
    the necessary action to protect my business.

The decision is in your hands Jane.

(3)

Alleged Repudiation and Motion for Enforcement

[18]

On
    February 3, 2014, new lawyers acting for Ms. Farnham wrote to Remedy alleging
    Remedy had, through its words and conduct, repudiated the settlement agreement.
    This February 3 letter made specific reference to Mr. Moodys email of January
    20, 2014, excerpted above. Ms. Farnhams counsel also informed Remedy that Ms.
    Farnham had elected to treat the settlement as at an end and that she would
    proceed with defending the claim and pursuing her counterclaim.

[19]

Remedys
    counsel responded immediately on February 4, 2014 stating that the settlement
    had not been repudiated.  He wrote: If required, Remedy will take all
    necessary steps to enforce the settlement, including in respect of the return
    of Remedys confidential information.  Unless we have your advance confirmation
    on behalf of Ms. Farnham that she intends to honour the terms of the settlement
    reached with Remedy, we intend to appear on February 10, 2014 (the date set for
    the return of the injunction) in order to seek the Courts assistance in
    setting a date and timetable for the enforcement of the settlement.

[20]

Remedy
     then appeared in court on February 10, 2014 and obtained an adjournment of the
    injunction motion. On April 10, 2014, the parties resolved the motion by
    agreeing that Ms. Farnham would place her personal computer in the hands of a
    third party to await further agreement or a court order.

[21]

Remedy
    then moved to enforce the settlement agreement.

C.

MOTION JUDGES DECISION

[22]

Before
    the motion judge, Ms. Farnham maintained that Remedy fired her when she
    rejected a new employment agreement. For the purposes of the motion, the motion
    judge held that it was immaterial whether Ms. Farnham had been dismissed or
    pre-emptively resigned.

[23]

The
    material aspect of the dispute was whether the parties had reached a settlement
    agreement and on what terms, and whether it remained enforceable.  The IT Issue
    was at the centre of the storm.

[24]

The
    motion judge held that the parties had reached a settlement agreement.  At
    para. 33 of his endorsement, he reasoned, Despite the failure to agree on a
    more formal document, the terms of the agreement can, in my view, be distilled
    from the email traffic between the parties which commenced on 25 December 2013
    and culminated with Ms. Farnhams we have an agreement email of 9 January
    2014.

[25]

The
    motion judge found that the terms of the agreement relating to the IT Issue
    were those advanced by Ms. Farnham. At para. 38, the motion judge wrote that [a]n
    objective reading of [the email] exchange between the parties supports the
    conclusion that there had been a compromise  with the process as set out by
    Ms. Farnham but, as a result of a concession subsequently made by Ms. Farnham,
    with such process being undertaken by [Remedys] preferred IT consultant rather
    than Ms. Farnhams.

[26]

In
    other words, the parties did not agree to a full forensic sweep of Ms.
    Farnhams computer.

[27]

With
    respect to Ms. Farnhams claim that Remedy had repudiated the agreement, Remedy
    argued that the emails exchanged after the January 9, 2014 we have an
    agreement message amounted to an interpretive dispute. According to Remedy, it
    was not refusing to perform its obligations under the settlement agreement; rather,
    it was attempting to clarify the terms of the agreement.

[28]

Ms.
    Farnham, on the other hand, asserted that the post-agreement emails went well
    beyond an interpretive dispute. She argued she was confronted with an ultimatum:
    perform the agreement on Remedys terms or risk further legal action, including
    the injunction.

[29]

The
    motion judge held that although Remedy took a hard line, it was prepared to be bound
    by the terms of the agreement.  He said, at para. 46, that, [a]lthough I have
    ultimately disagreed with the position taken by [Remedy] with respect to the
    terms of the settlement agreement, it cannot be said that [Remedys] position
    was so patently unreasonable as to evidence an insistence upon terms and
    conditions which could not possibly have been reasonably implied in the
    circumstances.

[30]

Finally,
    the motion judge reasoned that the fact that Remedy proceeded with its
    injunction did not mean it repudiated the agreement. He noted that, [n]otice
    of the [injunction] motion had already been given when the parties started
    their settlement negotiations in earnest on or about 25 December 2013 and observed
    it was not unusual for parties to negotiate while continuing to litigate.

[31]

Given
    his conclusion that Remedy had not repudiated the agreement, the motion judge
    granted judgment enforcing  the settlement on the terms advanced by Ms.
    Farnham.

D.

issues on appeal

[32]

While
    Ms. Farnham identifies three issues on appeal, her argument centres on whether
    the motion judge erred in failing to find that Remedys conduct amounted to a
    repudiation of the settlement agreement. Ms. Farnhams arguments relating to
    rule 49.09 are closely connected to this one main issue.

E.

ANALYSIS

[33]

I
    first outline the positions of the parties. I then articulate the relevant
    legal principles before applying them to the facts of this case. I conclude by
    discussing the impact of rule 49.09 on the issues at play.

The Parties Positions

[34]

In
    oral argument, Ms. Farnhams primary submission is that Remedy anticipatorily repudiated
    the settlement agreement. In his email sent on January 20, 2014, Mr. Moody, on
    behalf of Remedy, insisted on a term that was not contained in the settlement
    agreement  a broad forensic sweep. And Mr. Moody refused to perform the
    settlement agreement without the new term, threatening to continue with the
    injunction if Ms. Farnham did not comply with his demand. The email manifested
    Remedys intention to no longer be bound by the settlement agreement.

[35]

Moreover,
    Remedy did not, in the interim, perform the non-controversial aspects of the
    settlement agreement.

[36]

Ms.
    Farnham says that Remedy, by this conduct, repudiated the bargain. If the
    parties post-settlement agreement controversy was simply an interpretive
    dispute, Remedy needed to proceed on the basis that its interpretation of the
    agreement might be wrong. But it did not do so.  Remedy refused to accept
    anything other than its view of the agreement.  Significantly, it also proceeded
    with its motion for an injunction.

[37]

Remedy
    argues that it did not repudiate the settlement agreement. It submits that a
    finding of repudiation is exceptional, particularly in the context of
    settlement agreements.

[38]

Remedy
    asserts that what transpired after the lawyers attempted to paper the
    settlement agreement was merely an interpretive dispute over one minor issue in
    the context of the settlement agreement as a whole  the IT Issue. This issue
    was particularly minor for Ms. Farnham, as the settlement included a term
    releasing her from all claims arising out of her use of Remedys confidential
    information.

[39]

Remedy
    submits that the steps it took in relation to the injunction were benign in the
    context of the agreement. Remedys moving forward with the injunction and
    ultimately obtaining a consent order that protected the information in issue
    pending the resolution of the terms of the settlement amounted to nothing more
    than an attempt to preserve its confidential information pending the resolution
    of the dispute over the settlement. According to Remedy, rather than thwart the
    settlement agreement, its injunction proceedings amounted to an effort to
    preserve the status quo while the rights under the settlement agreement were being
    determined.

[40]

Remedy
    also submits that Ms. Farnhams position fails to respect two fundamental tenets
    of the doctrine of anticipatory repudiation. First, Remedys conduct was not so
    serious as to deprive Ms. Farnham of substantially the whole benefit of the settlement
    agreement. Second, Remedys conduct did not amount to a clear and unequivocal
    intention not to be held to the terms of the bargain.

The Applicable Legal Principles

[41]

The
    authorities establish the following principles relevant to this issue.

i.

A Focus on Intention

[42]

Repudiation
    occurs by the words or conduct of one party to a contract that show an intention
    not to be bound by the contract:
Guarantee Co. of North America v. Gordon
    Capital Corp.
, [1999] 3 S.C.R. 423, at para. 40. Anticipatory repudiation
    is essentially the same as repudiation
simpliciter
 the only
    difference is timing. In her treatise,
Canadian Contract Law
, 3d ed.
    (Markham: LexisNexis Canada, 2012), at p. 618, Angela Swan begins her
    discussion of anticipatory repudiation by helpfully outlining the circumstances
    in which this issue typically arises:

The phrases anticipatory breach or anticipatory repudiation
    refer to the situation created when, before the time of performance has
    arrived, one party to a contract tells the other, either explicitly or as an
    inference from something said or done by the party, that,
despite having no justification for its position, it is no
    longer prepared to perform its obligations under the contract
. The
    statement may be made in a letter by one partys solicitor to the other, by an
    oral statement by a party himself or herself to the other, or in any form of
    communication. [Emphasis added. Citations omitted.]

See also John McCamus:
The Law of Contracts
,
    2d ed. (Toronto: Irwin Law Inc., 2012), at p. 689.

[43]

Recently,
    in
Potter v. New Brunswick (Legal Aid Services Commission)
, 2015 SCC
    10, 381 D.L.R. (4th) 1, at para. 149, Cromwell J. (concurring) wrote this about
    anticipatory repudiation: The focus in such cases is on what the party's words
    and/or conduct say about future performance of the contract. For example, there
    will be an anticipatory repudiation if the words and conduct evince an
    intention to breach a term of the contract which, if actually breached, would
    constitute repudiation of the contract.

[44]

Accordingly,
    the same principles guide both anticipatory repudiation and repudiation. Courts
    often use the terms interchangeably because alleged repudiations frequently
    occur before the time of performance has arrived (to borrow Swans phrasing).

ii.

The Test is Objective and the Surrounding Circumstances Should be
    Considered

[45]

The
    test for anticipatory repudiation is an objective one: S.M. Waddams,
The
    Law of Contracts
, 6th ed. (Toronto: Canada Law Book, 2010), at para. 620.
    As Gillese J.A. wrote for this court in
Spirent Communications of Ottawa
    Ltd. v. Quake Technologies (Canada) Inc.
, 2008 ONCA 92, 88 O.R. (3d) 721,
    at para. 37: To assess whether the party in breach has evinced such an
    intention [to repudiate the contract], the court is to ask whether a reasonable
    person would conclude that the breaching party no longer intends to be bound by
    it.

[46]

In
    objectively construing the purported breaching partys intention, the
    surrounding circumstances must be considered. In
White v. E.B.F.
    Manufacturing Ltd.
, 2005 NSCA 167, 239 N.S.R. (2d) 270, Saunders J.A.
    wrote, at para. 89: Proof of such an intention requires an investigation into
    the nature of the contract, the attendant circumstances, and the motives which
    prompted the breach. Earlier this year, Cromwell J., in his concurring opinion
    in
Potter
, confirmed the importance of considering the surrounding
    circumstances. At para. 164, Cromwell J. wrote: As Lord Scarman put it in
Woodar
    Investment Development Ltd. v. Wimpey Construction UK Ltd.
, [1980] 1 All
    E.R. 571 (H.L.), at p. 590, the trial judge and the Court of Appeal in this
    case were concentrating too much attention on one act isolated from its
    surrounding circumstances and failing to pay proper regard to the impact of the
    party's conduct on the other party.

iii.

Subjective Intention Not to Repudiate is Not Determinative

[47]

A
    party can repudiate a contract without subjectively intending to do so. As the
    Supreme Court wrote in
Guarantee Company
, at para. 40:

Repudiation, by contrast, occurs "by words or conduct
    evincing an intention not to be bound by the contract. It was held by the Privy
    Council in
Clausen v. Canada Timber & Lands, Ltd.
[[1923] 4 D.L.R.
    751], that
such an intention may be evinced by a refusal
    to perform, even though the party mistakenly thinks that he is exercising a
    contractual right
" (S.M. Waddams,
The Law of Contracts
(4th
    ed. 1999), at para. 620).42 [Emphasis added.]

[48]

Swan
    confirms this approach at p. 618 of her treatise: The person (or his or her
    solicitor) may believe when the statement is made that he or she has an excuse
    for non-performance and that it is the other party who is in breach of the
    contract. The characterization of the statement as an anticipatory breach [or
    repudiation] will then be made when the dispute goes to trial.

[49]

However,
    the subjective intentions of the breaching party are of some moment.  They may
    assist in determining what the objective intention was. Justice Cromwell made
    this point at para. 171 of
Potter
: while the breaching party's
    motives as such are irrelevant, they may throw light on the way the alleged
    repudiatory conduct would be viewed by a reasonable person. Thus, the driving
    factor behind anticipatory repudiation remains the objective intention of the
    party purportedly about to breach the contract.

iv.

The Seriousness of the Conduct

[50]

A
    finding of anticipatory repudiation is reserved for cases in which the conduct
    at issue can be said to be serious. Before an anticipated breach of contract
    can be characterized as an anticipatory repudiation, the breach must deprive
    the innocent party of substantially the whole benefit of the contract: see
    Swan, at p. 618; Waddams, at ss. 590, 595; McCamus, at pp. 693-694; and
    Fridman,
The Law of Contracts in Canada
, 6th ed. (Toronto: Carswell,
    2011), at p. 585.

[51]

In
Spirent
, Gillese J.A. confirmed an approach that focuses on the
    importance of the disputed term, saying, at para. 37, When considering
    Spirents conduct, it was important to keep in mind that what was involved was
    an anticipatory breach of contract. [I]n determining whether the party in
    breach had repudiated or shown an intention not to be bound by the contract
    before performance is due, the court asks whether the breach deprives the
    innocent party of substantially the whole benefit of the contract. See also
Place
    Concorde East Limited Partnership v. Shelter Corporation of Canada
(2006),
    270 D.L.R. (4th) 181 (Ont. C.A.), at para. 51, where this court wrote, A
    breach that allows the non-repudiating party to elect to put an end to all
    unperformed obligations of the parties is an exceptional remedy that is
    available only in circumstances where the entire foundation of the contract has
    been undermined, that is, where the very thing bargained for has not been
    provided; and
Potter
,
per
Cromwell J.
,
at para.
    164.

[52]

The
    authorities are therefore clear. The conduct in this case  insistence on a new
    contractual term  can amount to an anticipatory repudiation, but
only if
the term is of such importance that the party seeking to rely on the term can
    be said to have exhibited an intention not to be bound by the contract.

v.

Anticipatory Repudiation in the Context of a Settlement Agreement

[53]

I
    agree with the opinion of the British Columbia Court of Appeal in
Fieguth
    v. Acklands Limited
(1989), 59 D.L.R. (4th) 114 (B.C.C.A.), at pp.
    122-123, that anticipatory repudiation should be considered a particularly
    exceptional remedy in the context of settlement agreements. The Court explained
    the rationale for this approach as follows:

It should not be thought that every disagreement over
    documentation consequent upon a settlement,
even if
    insisted upon
, amounts to a repudiation of a settlement. Many such
    settlements are very complicated, such as structured settlements, and the deal
    is usually struck before the documentation can be completed. In such cases the
    settlement will be binding if there is agreement on the essential terms. When
    disputes arise in this connection the question will seldom be one of
    repudiation as the test cited above is a strict one, but rather whether a final
    agreement has been reached which the parties intend to record in formal
    documentation, or whether the parties have only reached a tentative agreement
    which will not be binding upon them until the documentation is complete. Generally
    speaking, litigation is settled on the former rather than on the latter basis
    and parties who reach a settlement should usually be held to their bargains.
    Subsequent disputes should be resolved by application to the court or by common
    sense within the framework of the settlement to which the parties have agreed
    and in accordance with the common practices which prevail amongst members of
    the bar.
It will be rare for conduct subsequent to a
    settlement agreement to amount to repudiation
. [Emphasis added.]

This passage from
Fieguth
has been cited with
    approval by at least three Ontario courts, including this one: see
Bogue v.
    Bogue
(1999), 46 O.R. (3d) 1 (C.A.);
Cellular Rental Systems Inc. v.
    Bell Mobility Cellular Inc.
, [1995] O.J. No. 721 (S.C.), affd [1995] O.J.
    No. 3773 (C.A.); and
Whitehall Homes & Construction Ltd. v. Hanson
,
    2012 ONSC 3307, 23 C.L.R. (4th) 272, at para. 31.

[54]

Courts
    are motivated to enforce settlements for good reason. As Swan puts it at p. 52
    of her treatise, There are strong policy reasons for the courts attitude to
    settlements: it is in everyones interest that litigation be concluded by the
    parties agreement.

vi.

The Relevance of Commencing Legal Proceedings

[55]

Courts
    have recognized that, in certain circumstances, commencing an action may
    constitute repudiation of an agreement: see e.g.
Suleman v. British
    Columbia Research Council
(1990), 52 B.C.L.R. (2d) 138 (C.A.), at p. 142;
    but see
Vrana v. Procor Limited
, 2004 ABCA 126, 25 Alta. L.R. (4th) 201,
    at para. 14. In
Suleman
, the Court noted that the respondent had
    repudiated her employment contract by prematurely filing a writ of summons
    since she failed to establish a case of constructive dismissal: at pp. 142,
    144. However, in
Vrana
, the Court found the employee had not repudiated
    his employment contract by bringing legal action too early.

[56]

Although
    not perfectly analogous, this court has recognized that a non-repudiating
    partys filing of a statement of claim may, but does not automatically,
    constitute an acceptance of a repudiation. For example, in
Domicile
    Developments Inc. v. MacTavish
(1999), 45 O.R. (3d) 302 (C.A.), at pp.
    305-6, this court found that a party did not accept a repudiation when it
    issued a statement of claim seeking specific performance or damages because it
    made clear, in part through a letter to the repudiating party, that it did not
    accept the repudiation.

[57]

In
Place Concorde
, LaForme J.A. was prepared to assume that an election
    to accept a repudiation can be made by commencing an action but held that, in
    the overall context, the pleading did not constitute an election to treat the
    agreement as being at an end.

[58]

Case
    law is thus consistent with the principle that commencing legal action can, but
    does not necessarily, constitute repudiation. The proper inquiry remains
    focused on whether the party bringing legal action evinces an intention, in all
    the circumstances, to repudiate the agreement.

Application of These Principles

i.

Standard of Review

[59]

The
    question of whether a party repudiated an agreement is a question of fact, but
    whether the motion judge applied the proper legal test in determining whether
    there was a repudiation is a question of law. Therefore, in the typical case, a
    blended standard of review applies.

[60]

As
    explained by Saunders J.A. of the Nova Scotia Court of Appeal in
White
,
    at para. 60:

[T]here are mixed standards of review to be applied. When
    deciding, as he did, that the License Agreement had not been repudiated, the
    trial judge was obliged to apply proper legal principles. In that sense the
    standard for our review on appeal, to that segment of his decision making, is
    one of correctness. However, in arriving at that conclusion he was also obliged
    to carefully consider the evidence and make certain key findings. Such findings
    are reviewable on a palpable and overriding error basis, as discussed earlier.

[61]

In
    my view, the motion judges decision is reviewable on a correctness standard
    because he did not articulate the correct legal principles. Specifically, at
    para. 46, he wrote:

Although I have ultimately disagreed with the position taken by
    [Remedy] with respect to the terms of the settlement agreement, it cannot be
    said that [Remedys] position was so patently unreasonable as to evidence an
    insistence upon terms and conditions which could not possibly have been
    reasonably implied in the circumstances.

[62]

Here,
    the motion judge fell into error. The test for anticipatory repudiation is not,
    as the motion judge expressed it, whether the breaching partys position was so
    patently unreasonable as to evidence an insistence upon terms and conditions
    which could not possibly have been reasonably implied in the circumstances. With
    respect, reasonableness has nothing to do with it.  As I have already
    discussed, the correct analysis focuses on what the purported breaching partys
    conduct says about its objective intention in relation to future performance of
    the contract. And this was not a minor misstatement as this error appears to
    lie at the heart of the motion judges analysis.

ii.

Did Remedy Repudiate the Settlement Agreement Through its Words
    and Conduct?

[63]

Although
    I disagree with the basis upon which the motion judge concluded that Remedys
    words and conduct did not amount to an anticipatory repudiation of the
    settlement, I agree with the result he reached. In my view, Remedy did not
    repudiate the settlement agreement through its words or conduct.

[64]

Fundamentally,
    considered objectively and in the light of the surrounding circumstances,
    Remedy did not exhibit an intention not to be bound by the contract. Given the
    motion judges interpretation of the settlement agreement, it is clear Remedy
    was not entitled to insist on a full forensic sweep. And it is also clear that
    Remedy took a hard line with Ms. Farnham in threatening to continue with the
    injunction proceedings if she did not capitulate. However, a reasonable
    person would not conclude that Remedy no longer intended to be bound by the
    settlement agreement:
Spirent
, at para. 37.

[65]

I
    say this for four primary reasons.

[66]

At
    the outset, I think it important to remember that the contract at issue is a
    settlement agreement. The circumstances outlined above do not provide a
    compelling reason for this court to depart from the general principle that it
    is important to hold parties to their settlements. As the Court noted in
Fieguth
,
    at para. 49, It will be rare for conduct subsequent to a settlement agreement
    to amount to repudiation.

[67]

My
    first point is that this is not one of those rare cases.

[68]

Second,
    the term involving the IT Issue is not a term of the contract which, if
    actually breached, would constitute repudiation of the contract. The threatened
    breach of the term that would have given Remedy the right to a technological
    sweep of Ms. Farnhams personal computer would not deprive her of substantially
    the whole benefit of the contract. It would not undermine the foundation of the
    settlement agreement; namely, the financial package.  This is particularly so
    because the settlement agreement contained a term that gave Ms. Farnham a full
    and final release from all claims arising out of her use of Remedys
    confidential information. Accordingly, the precise scope of the technological
    sweep should have been of little, if any, consequence to Ms. Farnham.

[69]

Third,
    Ms. Farnhams reliance on Remedys proceeding with the injunction does not, in
    my view, support a finding of repudiation. As previously noted, the proper
    inquiry remains focused on whether the party moving forward with legal action
    evinces an intention to repudiate the agreement. Here, Remedys counsel
    expressly advised Ms. Farnham that there was no repudiation and then proceeded
    to obtain an adjournment of the injunction motion.  Remedys steps taken in
    relation to its motion for an interim injunction were not tantamount to an
    intention to abandon the settlement agreement. As I see it,  Remedys
    injunction motion was consistent with  not contrary to  the spirit of the
    settlement agreement.

[70]

Fourth,
    it would be a mistake to focus in on the injunction and lose sight of the
    circumstances as a whole. It is an error to concentrate too much attention on
    one act isolated from its surrounding circumstances and fail to pay proper
    regard to the impact of the partys conduct on the other party:
Potter
,
    at para. 164.

[71]

In
    my view, the surrounding circumstances paint the following picture. A dispute
    arose that brought an end to a relatively brief employment relationship. A
    settlement was negotiated and the parties then disagreed on the nature of the
    technological sweep that would be required to ensure that Ms. Farnham no longer
    had possession of Remedys confidential documents. In my view, even without the
    release, the forensic sweep did not go to the root of the contract. However, in
    the light of the release, the forensic sweep was next to meaningless in terms
    of its impact on Ms. Farnham.

[72]

Although
    insistence on a new contractual term can amount to repudiation, this will not
    always be the case, especially when it can be demonstrated that the other
    party is seizing upon small points to get out from under its contractual
    obligation:
AIC Ltd. v. Infinity Investment Counsel Ltd.
(1998), 147
    F.T.R. 233 (F.C.), at para. 42.

[73]

I
    would therefore not give effect to Ms. Farnhams argument that Remedy
    repudiated the settlement agreement.

[74]

And,
    as I will now discuss, I would also reject Ms. Farnhams submissions regarding
    rule 49.09.

iii.

The Impact of Rule 49.09

[75]

Rule
    49.09 provides:

49.09   Where a party to an accepted offer to settle fails to
    comply with the terms of the offer, the other party may,

(a) make a motion to a judge for judgment in the terms of the
    accepted offer, and the judge may grant judgment accordingly; or

(b) continue the proceeding as if there had been no accepted
    offer to settle.

[76]

Ms.
    Farnham makes two submissions with respect to rule 49.09. As will become
    apparent, I would not give effect to these submissions for much the same
    reasons as I would not give effect to Ms. Farnhams suggestion that Remedy
    repudiated the settlement agreement.

[77]

First,
    Ms. Farnham submits that once the dispute as to the terms of the settlement
    agreement arose, rule 49.09 gave Remedy a choice: it could either proceed with
    its injunction, or it could bring a motion to enforce the settlement. According
    to Ms. Farnham, the motion judge erred in law in permitting Remedy to bring its
    motion for enforcement under rule 49.09(a) subsequent to the steps it took in
    relation to the injunction.

[78]

This
    first submission on rule 49.09 comes down to the following. Through the
    injunction proceedings, Remedy took steps inconsistent with the settlement and,
    under rule 49.09, these steps disentitled Remedy to an order enforcing the
    settlement on any terms.

[79]

I
    disagree.

[80]

Recall
    that Remedy moved for an interim injunction in November, 2013, to restrain Ms.
    Farnham from  damaging the company.  The return date was in February, 2014.   When
    the parties reached their impasse, Remedys counsel immediately wrote rejecting
    the suggestion that the settlement had been repudiated and advised that, in the
    absence of a resolution,  they would attend at court on the return date in order
    to seek the Courts assistance in setting a date and timetable for the
    enforcement of the settlement. No criticism is properly levelled at Remedy in
    these circumstances. Ms. Farnhams argument, if successful, would result in the
    triumph of form over substance.

[81]

As
    the motion judge observed, the injunction motion was initially brought before
    the settlement negotiations began. The application of the doctrine of election
    precludes a party from exercising a right that is inconsistent with another
    right if he has consciously and unequivocally exercised the latter:
Charter
    Building Co. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Womens Fitness &
    Day Spa)
, 2011 ONCA 487, 107 O.R. (3d) 133, at para. 15. Remedys actions
    were not inconsistent with the settlement agreement. The parties preserved the
    status quo while the enforceability and terms of the settlement agreement were
    determined by a court.

[82]

Ms.
    Farnhams second submission in relation to rule 49.09 goes like this. Once
    Remedy insisted on a contractual term to which it was not entitled (the full
    forensic sweep), Ms. Farnham was at liberty to treat the agreement as at an end
    and continue the proceeding as if there had been no accepted offer to settle,
    pursuant to rule 49.09(b).

[83]

According
    to Ms. Farnham, the motion judge erred when he said, at para. 40: Absent
    agreement between the parties as to what they had agreed to, the issue could
    and should be resolved by way of a motion under rule 49.09(a). Ms. Farnham
    submits that this passage suggests that a disagreement that results in the
    parties failing to complete a settlement must be resolved through a motion to
    interpret the settlement. This, says Ms. Farnham, is not what the rule
    provides.  Rule 49.09(b) gives the other party the right to treat the
    settlement as at an end.

[84]

The
    effect of this error, says Ms. Farnham, is the following. Had the motion judge
    properly applied rule 49.09, he would have accepted that she was entitled to
    and, in fact, did elect to treat the settlement as at an end and continue the
    litigation. Ms. Farnhams argument is that the motion judges interpretation of
    rule 49.09 eviscerates a partys right to make an election under the rule.

[85]

Again,
    I disagree.

[86]

The
    motion judge did not err in resolving the one outstanding issue separating the
    parties by granting judgment in accordance with the terms of the accepted offer
    to settle. It cannot be the case that Ms. Farnham could unilaterally elect to
    proceed with the litigation in the face of Remedys motion to enforce the
    settlement  a motion that was brought to resolve an interpretive dispute over
    a term with very little consequence to Ms. Farnham. Having concluded that
    Remedy did not repudiate the settlement agreement, it would be odd indeed to
    then allow Ms. Farnham to resile from the settlement under the guise of rule
    49.09(b).

[87]

I
    find no error in the motion judges consideration of rule 49.09 in the
    circumstances of this case.

F.

DISPOSITION

[88]

For
    these reasons, I would dismiss the appeal. I would award the respondent its
    costs on a partial indemnity basis fixed in the amount of $12,000 all
    inclusive.

Released: August 19, 2015 (GE)

Gloria
    Epstein J.A.

I
    agree S.E. Pepall J.A.

I
    agree M.L. Benotto J.A.