COURT OF APPEAL FOR ONTARIO

CITATION:
Sheth v. Randhawa, 2022 ONCA 89

DATE: 20220128

DOCKET: M53070 (C69649)

Simmons
    J.A. (Motions Judge)

BETWEEN

Lovera
    Sheth

Plaintiff (Appellant/Moving Party)

and

Karanpaul
    Randhawa, TSD Law Professional Corporation, Anoop Singh Dhillon, Bindaas
    Capital, Ash Karia, Sujoy Pal, Dr. Mangesh Inamdar Medicine Professional
    Corporation, 11035738 Canada Inc., Shan Mangal and Gurpal Singh

Defendants (Respondents/Responding Parties)

Doug LaFramboise, for the moving party

Demetrios Yiokaris, for the responding
    parties Anoop Singh Dhillon and TSD Law Professional Corporation

Aaron Hershtal, for the responding
    party Karanpaul Randhawa

Paul Robson, for the responding parties
    11035738 Canada Inc., Shan Mangal and Gurpal Singh

Matthew Harris, for the responding parties
    Ash Karia, Bindaas Capital, Sujoy Pal and Dr. Mangesh Inamdar Medicine Professional
    Corporation

Heard: January 20, 2022 by video conference

ENDORSEMENT

Introduction

[1]

The moving party/appellant, Lovera Sheth,
    requests an order: i) setting aside the Registrar's order dismissing her appeal
    for delay, and ii) granting her seven days from the date of the order on this
    motion to perfect her appeal.
[1]

[2]

The order under appeal was made on a motion the
    appellant brought in her underlying action to set aside a transfer of property
    and/or for damages. The motion judge treated the appellants motion as a motion
    for partial summary judgment. She dismissed the appellants motion and granted
    reverse summary judgment in favour of the responding parties dismissing the
    appellants action.

[3]

For the reasons that follow, I grant the
    appellant's request subject to conditions as set out below.

Background

[4]

On March 9, 2020, Bindaas Capital (Bindaas or
    the chargee) and Brinder Nagra
[2]
transferred
    the subject property to 11035738 Canada Inc. (1103 or the purchaser)
    pursuant to a power of sale contained in the first charge against the property.

[5]

The property transferred was the appellant's
    residence. It is undisputed that she remains in the home to date. She acquired
    the property in 2017 and granted or assumed first and second charges to Bindaas
    and others,
[3]
and
    Bindaas, for $610,000 and $160,000, respectively, at that time. There was also
    a third charge registered at the time in favour of Park Lane Plumbing Limited
    (Park Lane), apparently for $90,000. A fourth charge, apparently for $45,000,
    was later registered against the property in August 2019 in favour of Doris
    Joseph.

[6]

The appellant asserts that she did not learn of
    the March 9, 2020 transfer until May 2020. Soon after learning of the transfer,
    she commenced the underlying action and brought a motion, originally returnable
    on May 21, 2020, to set aside the transfer.

[7]

In her action, among other things, the appellant
    sought a declaration that the March 9, 2020 transfer was fraudulent, an order
    reversing the transfer and re‑registering the property in her name, and
    damages for loss of equity. In her motion, at least as originally framed, the
    appellant asked, among other things, that the March 9, 2020 transfer be deemed
    a nullity and that the property be re‑registered in her name.

[8]

Following cross-examinations, the appellants motion
    in some form
[4]
was
    heard on June 9, 2021. On the hearing date, the appellant sought an adjournment
    to conduct a further examination of Ash Karia, the principal of Bindaas. The responding
    parties opposed the request. The motion judge denied the adjournment for reasons
    provided orally.

[9]

The motion judge released her endorsement
    concerning the merits of the motion on June 14, 2021. According to the June 14,
    2021 endorsement, the appellant argued that the responding parties (primarily,
    the chargee and the chargees solicitors (Mr. Randhawa) and the purchaser and
    the purchasers solicitors (TSD Law Professional Corporation and Mr. Dhillon))
    engaged in a conspiracy to defraud her and take her property from her; and further,
    that the notice of sale issued by Bindaas was invalid and that the transfer was
    therefore a nullity.

[10]

In her June 14, 2021 endorsement, the motion
    judge dismissed the appellant's motion and granted reverse summary judgment to
    the responding parties dismissing the appellant's action subject to the appellants
    right to proceed with an accounting against Bindaas and its principal, Mr.
    Karia and subject also to the right of the purchaser to apply for payment out
    of $40,000 the appellant paid into court pursuant to an order made by Andre J.

[11]

The appellant filed her notice of appeal dated
    July 13, 2021 on July 14, 2021. Under rule 61.09(1)(a), the appeal should have
    been perfected on or before August 13, 2021.

[12]

On August 16, 2021, the Registrar of this court sent
    a notice to the appellant advising her appeal would be dismissed unless
    perfected by September 7, 2021. The Registrar subsequently dismissed the
    appellant's appeal on November 5, 2021. Appellants counsel apparently received
    notice of the dismissal on November 9, 2021.

[13]

The appellants set aside/extension motion is
    dated November 24, 2021. Appellants counsel sought to make it returnable on
    December 6, 2021. However, due to the unavailability of the purchasers lawyer
    for any dates in December the motion was brought returnable on January 20, 2022.

Chronology of the Chargees Enforcement Proceedings
    and the Appellants Action

[14]

The following chronology
[5]
of the chargees enforcement proceedings and of the appellants
    action is relevant to the issues on this motion:

·

July 2018, the appellant defaulted under the
    first and second charges to Bindaas and others, and Bindaas;

·

July 30, 2018, Bindaas issued a notice of sale
    under charge with respect to the second charge requiring payment by September
    5, 2018;

·

July 30, 2018, Bindaas commenced an action to
    enforce the second charge;

·

February 15, 2019, Bindaas and others issued a
    notice of sale under charge with respect to the first charge requiring payment
    by April 5, 2019;

·

March 8, 2019, Bindaas and others commenced an
    action to enforce the first charge;
[6]

·

December 4, 2019, the appellant and the first
    and second chargees (Bindaas and others, and Bindaas) entered into Minutes of
    Settlement requiring the appellant to pay $893,000 within seven days in full
    and final settlement of the actions to enforce the first and second charges. In
    default of payment, the chargees were entitled to sign judgment for $927,465.33
    representing the full amount due under the first and second charges;

·

January 2020, the appellant listed the property
    for sale;

·

January 29, 2020, the appellant entered into an
    agreement to sell the property to Bobby Abraham for $1,000,000 with a closing
    date of February 28, 2020;

·

February 13, 2020, following default in payment
    under the Minutes of Settlement, the first and second chargees obtained
    judgment
[7]
for
    $927,465.33 plus $3,127.74 for costs;

·

February 26, 2020, the chargees lawyer (Mr.
    Randhawa) received a message from the appellants lawyers office that the
    property had been sold for $1,000,000 but did not receive a copy of the
    agreement of purchase and sale;

·

unknown date, the appellant requested a
    discharge statement for the charges;
[8]

·

February 27, 2020, 1103 offered to purchase the
    property as is for $970,000. The offer was accepted with a closing date of
    March 4, 2020. (The agreement is not in the record on this motion. Para. 23 of
    the motion judges reasons does not refer to Brinder Nagra as being a party to
    this offer);

·

February 28, 2020, Bindaas real estate
    solicitor (Mr. Devesh Gupta) sent the appellants real estate solicitor (Mr.
    Manish Kapoor) a discharge statement for the charges for $980,272. Upon being
    advised this amount was disputed, Mr. Randhawa advised he was no longer
    retained on the matter;

·

February 29, 2020, in response to inquiries
    about the discharge statement, both Mr. Randhawa and Mr. Gupta advised they
    were not retained by Bindaas for purposes of the discharge of the charges;

·

March 4, 5, and 6, 2020  1103s purchase is
    postponed each day, finally, on March 6, 2020 to March 9, 2020;

·

March 6, 2020, on motion by the appellant, Harris
    J. fixed the amount required to discharge the first and second charges at
    $932,211.73 less $5,000 on account of costs;

·

March 9, 2020, 1103s purchase closed and the
    transfer, under the power of sale contained in the first charge, from Bindaas
    and Nagra to 1103 was registered;

·

March 9, 2020, 1103 registered a charge against
    the property in favour of Gurpal Singh for $880,000;

·

March 16, 2020, on motion by the appellant, Bloom
    J. fixed the amount required to discharge the first and second charges at
    $929,498.01 less $3,500 on account of costs and ordered that on payment into
    court the charges would be discharged;

·

May 7, 2020, Bobby Abraham paid $920,988 into
    court (of which $800,000 was borrowed from the National Bank) and also paid
    $51,000 to discharge the third charge in favour of Park Lane  commencing May
    1, 2020, the appellant began paying Bobby Abraham $3,131 per month on account
    of the National Bank loan;

·

unknown date, Mr. Mangal visited the property
    and discovered that the appellant was still occupying it: para. 38 of the
    motion judges reasons;

·

May 12, 2020, Anthony Forgione of Apex Property
    Management delivered a Notice of Trespass to the occupants of the property on
    behalf of 1103 requiring them to vacate on or before May 17, 2020. The Notice
    stated it was further to previous notice provided to you to vacate the premise.;

·

May 13, 2020, the appellant issued her statement
    of claim;

·

May 19, 2020, 1103 registered a second charge
    against the property in favour of Kuldip Singh Dhillon for $262,500;

·

July 22, 2020, the date of Mr. Randhawas
    Statement of Defence and Crossclaim;

·

July 28, 2020, the date of Mr. Dhillon and his
    law firms Statement of Defence and Crossclaim;

·

July 30, 2020, the date of the Statement of
    Defence and Counterclaim and Crossclaim of Bindaas and other chargees and Mr.
    Karia;

·

November 20, 2020, the purchaser replaced its
    previous financing with new first and second charges in the principal amounts
    of $900,000 and $100,000 respectively (I am unclear whether this information
    was before the motion judge as the details of these charges are set out in a
    supplementary motion record dated January 13, 2022 filed on this motion by the
    purchaser and its principal (Mr. Mangal));

·

November 24, 2020, the purchaser and its
    principal (Mr. Mangal) moved for an order requiring the appellant to pay into
    court all expenses and costs associated with her continuing occupation of the
    property, or, in the alternative, for a writ of possession;
[9]
the appellant brought a cross-motion seeking a declaration that the
    March 9, 2020 purported purchase was fraudulent; Andre J. ordered that the
    cross-motion
[10]
be
    heard on June 9, 2021 and that the appellant pay into court $40,000 to be held
    in trust pending the outcome of the cross-motion;

·

February 2, 2021, the date of the Statement of
    Defence and Counterclaim and Crossclaim of 1103, its principal and Mr. Singh,
    the original first chargee following the sale to 1103;

·

March 16, 2021, the National Bank obtained a
    consent order for payment out of the monies paid into court by Bobby Abraham;

·

June 9, 2021, the appellants motion was heard;

·

June 14, 2021, the motion judge issued her
    endorsement;

·

July 14, 2021, the appellant filed her notice of
    appeal;

·

August 13, 2021, the purchaser and its principal
    brought a motion requesting a writ of possession for the subject property; Woollcombe
    J. rejected the appellants position that the motion judges order was
    automatically stayed by the appeal; although she found an evidentiary basis existed
    for issuing a writ of possession under rule 60.10, in light of the appeal and
    the prejudice the appellant would experience if improperly evicted, she accepted
    the appellants proposal to pay $4,500 per month rent to the purchaser pending
    disposition of the appeal commencing September 1, 2021 and directed that in
    default of payment a writ of possession would issue.

The test for setting
    aside an administrative dismissal for delay and extending the time for
    perfection

[15]

The test on a motion of this kind is
    well-established. The ultimate question is whether the justice of the case
    warrants the order requested. Factors to be considered in making the decision
    are: (i) whether the appellant formed an intention to appeal within the appeal
    period; (ii) the length of the delay; (iii) the explanation for the delay; (iv)
    the merits of the proposed appeal; and (v) prejudice to the responding parties.
    See, for example,
Paulsson v. University of Illinois
, 2010 ONCA 21, at
    para. 2;
Krawczynski v. Ralph Culp and Associates Inc.
, 2019 ONCA 399,
    69 C.B.R. (6th) 163, at para. 9;
Frey v. MacDonald
(1989), 33 C.P.C.
    (2d) 13 (Ont. C.A.), at p. 14;
Enbridge Gas Distribution v. Froese
,
    2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

Discussion

Criteria (i), (ii) and (iii) - Timeliness and Explanation
    for the delay

[16]

There is no issue that the appellant satisfied
    the first criterion of the test on this motion, having served her notice of
    appeal within the appeal period.

[17]

Relying on rule 61.09(1)(b), appellants counsel
    argued that because the appellant wished to raise issues on appeal about the
    denial of the adjournment request and was therefore required to obtain a
    transcript of the motion judges oral reasons, the time for perfecting this
    appeal should have been extended to 60 days after the transcript was filed.

[18]

I reject this submission. Rule 61.09(1)(b) applies
    where a transcript of evidence is required for the appeal. No oral evidence was
    called on the motion. Rule 61.09(1)(b) does not apply. If the appellant
    required additional time to perfect to obtain a transcript of any submissions
    and the motion judges oral reasons for refusing the adjournment request, the
    proper course was to move for an extension of the time to perfect prior to the
    dismissal for delay.

[19]

The responding parties contend that the delay in
    this matter amounts to five months and is inordinate; that the evidence
    demonstrates that the appellant did not maintain a consistent intention to
    appeal throughout that period; and that the appellant has not provided an
    adequate explanation for her delay:
Codina v. Canadian Broadcasting
    Corporation
, 2020 ONCA 116, at paras. 2 and 4;
Dupuis v. Waterloo (City)
,
    2020 ONCA 96, at paras. 3-5.

[20]

I conclude that the period of delay is just
    short of four months, being the period from August 13, 2021, the date the
    appellant should have perfected, to December 6, 2021, the first date on which
    the appellant was prepared to proceed with this motion.

[21]

In support of their position on delay, the responding
    parties submit that appellants counsel ignored six written requests over five
    months to perfect the appeal and settle the form of the order under appeal.
    They also note that the appellant did not order the transcripts of the motion
    hearing until August 9, 2021, almost two months after the motion judges
    reasons were released; did not advise responding parties counsel that
    transcripts had been ordered until October 26, 2021; and did not move for an
    extension of time to perfect in response to the Registrars warning. Further,
    the appellant did not obtain the opinion of value she seeks to adduce as fresh
    evidence until November 2021, which was after her appeal was dismissed for
    delay.

[22]

I agree that the appellant did not move efficiently
    or with dispatch in attempting to perfect this appeal. However, I do not accept
    that the evidence demonstrates that she abandoned her intention to appeal at
    any point or that the delay in this case should be characterized as inordinate
    or point strongly to the dismissal of this motion.

[23]

I reach my conclusions for the following reasons.
    First, in my view, an assessment of the various factors requires a contextual
    approach. Each factor must be considered in the context of the overall
    circumstances of the case and may carry more or less weight in a particular
    case depending on the circumstances. Second, the record in this case suggests that
    appellant's counsel believed, albeit incorrectly, that the time for perfecting
    the appeal was governed by rule 61.09(1)(b). Third, to date, this action has
    not proceeded at a torrid pace. The appellant commenced her action in March
    2020 and judgment was granted on a partial summary judgment motion initiated by
    her in June 2021. The responding parties point to procedural missteps on the
    part of the appellant. However, I see no indication in the record that the responding
    parties attempted to bring this matter to fruition more quickly. Fourth, while
    the responding parties maintain they were anxious to have the appeal move
    forward, they failed to demonstrate any urgency when consulted about scheduling
    this motion. The appellant was prepared to bring this motion on December 6, 2021,
    but in mid-November, the purchasers counsel indicated he had no December dates.

[24]

No doubt appellants counsel could and should have
    proceeded towards perfection in a more efficient manner. However, considered in
    the context of the overall pace of this litigation, I do not consider that the approximately
    four months of delay should be characterized as inordinate or that counsel's
    mistaken understanding of rule 61.09 should be visited on the appellant to
    justify refusing the requested relief.

Criteria (iv) - Merits of the Appeal

[25]

The responding parties submit that the merits of
    the appeal are weak at best, or non-existent. They point to the motion judges
    detailed reasons and findings of fact; to her conclusion that most of the
    traditional badges of fraud are absent from the circumstantial evidence; and to
    the standard of review and the inherent difficulty of overturning findings of
    fact and findings of mixed fact and law on appeal. In addition, they underline
    the importance of the motion judges following specific findings:

i)

the appellants agreement to sell the property
    for $1,000,000 in February 2020 reflected fair market value (thus a sale
    involving no commissions for $970,000 in the same time frame did not run afoul
    of the chargees obligations);

ii)

the potential badge of fraud of secrecy (i.e.,
    the chargees failure to advise the appellant of its pending sale) was
    explained by four factors: a) a reasonable belief, based on past experience,
    that the offer the appellant had secured for the sale of the property was an
    effort to delay the chargee; b) a reasonable belief that such offer had
    expired; c) a reasonable belief based on past experience and the fact that the
    appellant was still living on the property that she would attempt to thwart the
    chargees intended sale through some form of injunctive proceedings; and d) the
    absence of any professional obligation on the part of the chargees lawyer to
    disclose the sale to the appellant; and

iii)

the potential badge of fraud relating to the
    haste with which the power of sale was conducted was negated by several
    factors: a) the period of time during which the appellant had been in default
    under the charge (since July 2018); b) the appellants failure to comply with Minutes
    of Settlement in the actions on the covenant in the charges under which Bindaas
    had given her an opportunity to refinance; c) the reasonable belief that the
    offer the appellant had obtained was a stall or had expired; and d) the
    reasonable desire in all the circumstances to get on with enforcing the charge.

[26]

In addition, the responding parties submit there
    is no basis to overturn the motion judges ruling that the valuation evidence
    tendered by the appellant following cross-examinations was not admissible on
    the motion. Finally, they submit that the appellant will not succeed on any
    proposed fresh evidence application. The valuation evidence proposed to be
    submitted could and should have been tendered on the June 9, 2021 motion. Similarly,
    even assuming it could constitute fresh evidence, the decision in
Di Trapani
    v. 9706151 Canada Ltd
., 2019 ONSC 7311 was available well before June 9,
    2021.

[27]

I agree that the appellant is unlikely to
    succeed in any proposed fresh evidence application or in overturning the motion
    judges ruling that the tendered valuation evidence was inadmissible. I also agree
    that, given the findings made by the trial judge, the appellant faces an uphill
    challenge on appeal. Nonetheless, I am satisfied that the appellant has
    arguable grounds of appeal concerning whether the motion judge properly weighed
    the evidence concerning potential badges of fraud and fair market value to
    support her summary dismissal of the appellants claims for damages and/or a
    reconveyance of the property based on fraud and conspiracy.

[28]

Several of the appellants grounds of appeal
    relate to how the motion judge weighed the evidence concerning the inferences
    to be drawn from aspects of the responding parties conduct in completing the
    power of sale, including the following:

·

failing to list the property on an MLS listing
    service;

·

entering into a sale agreement on February 27,
    2020, which was the day before the appellants proposed sale to Abraham was
    scheduled to close, knowing of the Abraham agreement of purchase and sale;

·

entering into a sale agreement with a rushed
    closing date;

·

failing to advise the appellant of the impending
    sale in order to avoid the possibility of injunction proceedings;

·

providing an inflated discharge statement, which
    scuttled the Abraham sale;

·

failing to advise the appellant or the
    subsequent chargees that the property had been sold for a considerable period after
    the sale was completed;

·

the purchasers failure to inspect the property;

·

the purchasers intention to flip the property
    for a profit;

·

the fact that within just over two months after
    completing the purchase, 1103 had increased the charges registered against the
    property to a total of $1,142,500, almost $175,000 more than it paid for the
    property.

[29]

In many cases, the manner in which a first
    instance judge weighs evidence will be immune from appellate review. In this
    case however, the motion judge appears to have premised her analysis of the responding
    parties conduct, at least in part, on the traditional badges of fraud generally
    associated with conveyances made to avoid creditors. Some of those factors
    appear to have little or no application to assessing the
bona fides
of
    a sale to a third party under a power of sale contained in a charge.

[30]

For example, the following factors referred to
    by the motion judge appear to be of little relevance: whether the vendor
    remained in possession and continued to use the property as his own; whether
    the transfer was made in the face of threatened legal proceedings; and whether
    the transfer documents contained false statements.

[31]

Further, I consider it open to question whether
    the trial judge assessed the evidence bearing in mind the particular context of
    power of sale proceedings and a chargees duties in that context, potentially
    calling into question the motion judges explanations for excusing the secrecy
    and haste of this transaction. As an example, it may be questionable whether protracted
    prior court proceedings in relation to a chargees claim for payment on the
    covenant can in any way relieve a chargee from its obligations when subsequently
    exercising a power of sale, or serve as an explanation for secrecy and haste in
    conducting the power of sale. A mortgagee/chargees obligation when
    selling under power of sale has been described generally as an obligation to
    take reasonable precautions to obtain the true market value of the property as
    of the date of the sale:
Centurion Farms Ltd. v. Citifinancial Canada Inc.
,
    2013 ONCA 79, at para. 4. See also Gowling Lafleur Henderson LLP,
Marriott
    and Dunn: Practice in Mortgage Remedies in Ontario
, looseleaf, 5th ed. (Toronto:
    Carswell, 1995), c. 33. It may be questionable whether the motion judge
    assessed the secrecy and haste with which the sale to 1103 was carried out taking
    account of the chargees obligation in carrying out a power of sale.

[32]

Similarly, the motion judge appeared to give
    little or no weight to the failure of the chargee to obtain a judgment for
    possession, a writ of possession and ultimately vacant possession of the
    property prior to sale; the failure of the chargee to list the property on a multiple
    listing service; and to the purchasers evidence that he assess[ed] the
    situation similarly to how one would assess a salvaged car. None of these
    features of this transaction create confidence that the chargee obtained a
    proper price.

[33]

Further, when discussing the traditional badges
    of fraud, the motion judge noted that 1103 was a
bona fide
purchaser
    that has repeatedly tried to take possession of the property. In making that
    observation, the motion judge appears to be assuming there is nothing out of
    the ordinary about a purchaser under a power of sale having to take steps to
    obtain possession of the property.

[34]

That is not only a questionable assumption, it may
    overlook a problem that other judges in this matter may also have overlooked,
    namely, that it is not open to a purchaser to simply move under rule 60.10 for
    leave to issue a writ a possession. I will discuss this further under the next
    heading. I simply note that the failure of a chargee to deliver vacant
    possession on closing, when exercising a power of sale, does not create
    confidence that the chargee obtained a proper price.

[35]

In the result, while I acknowledge that the
    appellant faces an uphill climb on appeal, I am satisfied she has arguable
    grounds of appeal. Moreover, I observe that, in general, it is desirable that
    cases be determined on their merits where possible rather than being dismissed
    over procedural shortcomings.

Criteria (v) - Prejudice to the Responding Parties

[36]

The responding parties point to their inability
    to collect the costs ordered payable to them by the motion judge ($140,000)
    together with the carrying costs being incurred by the purchaser in relation to
    the property (approximately $7,600 per month) as well as the purchasers
    inability to obtain a writ of possession pending appeal as supporting their
    position that the appellants motion should be dismissed.

[37]

I am not persuaded that these arguments point
    strongly to dismissing the appellants motion.

[38]

The responding parties' entitlement to costs is
    dependent on the outcome of the appellants appeal.

[39]

In failing to insist on or confirm vacant
    possession on closing, in the context of a power of sale of a residential
    dwelling, the purchaser assumed the risk of being unable to obtain vacant
    possession and the prospect of a legal proceeding and all the steps that
    proceeding might entail. In my view, it is not open to the purchaser to claim
    that the consequences of that decision, and its decision to heavily mortgage
    the purchased property, in part by placing an additional charge before it had
    obtained vacant possession, should determine whether the appellant should be
    entitled to proceed with her appeal.

[40]

If anything, the quantum of the carrying costs
    and the purchasers failure to require vacant possession on closing may raise
    questions about the
bona fides
of the transaction.

[41]

I observe, in addition, that the record before
    me does not demonstrate that the chargees or the purchasers have taken any of
    the steps necessary to put the purchaser in a position to promptly obtain court
    enforced possession of the property.

[42]

The statements of claim issued by the chargees
    to enforce the first and second charges are not in the record. Although I
    consider it possible, even likely, that they included claims for possession of
    the charged property, that is not clear. If they included such claims, their
    failure to obtain an order for possession prior to the sale of the property is
    unexplained.

[43]

Further, based on my review of the record, it is
    not clear that either chargee could now seek an order for possession. As noted
    above, in footnote 6, the first chargees statement of claim may have been issued
    in contravention of s. 42(1) of the
Mortgages Act
, R.S.O. 1990, c. M.40.
    Now that the second chargees charge has been extinguished by the power of
    sale, it is not clear to me that an order for possession could be issued in the
    second chargees action.

[44]

In addition, nothing in the record suggests that
    the purchaser has commenced a proceeding that would entitle it to obtain an
    order for possession of the property and thereafter a writ of possession to
    enforce that order. The purchaser did not claim an order for possession in its
    Statement of Defence and Counterclaim and Crossclaim delivered in the
    underlying action.

[45]

The purchaser argues that it is entitled to
    obtain leave to issue a writ of possession under rule 60.10 on motion in this
    proceeding by virtue of its status as the registered owner of the property and
    that only this appeal is standing in its way.

[46]

The purchaser relies on a plain reading of the
    emphasized portions of rule 60.10(1) as set out below:

60.10(1)
A writ of possession
(Form
    60C)
may be issued only with leave of the court, obtained on motion without
    notice
or at the time an order entitling a party to possession is made.
    [Emphasis added.]

[47]

In my view, the purchasers submission is wrong
    in law. Rule 60.10 must be read in the context of the entire rule. Rule 60 is entitled
    Enforcement of Orders. The headings over the immediately following
    subsections reinforce that the subject matter of Rule 60 is the enforcement of
    orders. Rule 60.02 is entitled Enforcement of Order for Payment or Recovery of
    Money. Rule 60.03 is entitled Enforcement of Order for Possession of Land. Equally
    important, a plain reading of rule 60.03 makes it clear that the purpose of
    rule 60.10 is to enable the enforcement of an order for possession:

60.03 An order for the recovery or delivery of
    the possession of land may be enforced by a writ of possession (Form 60C) under
    rule 60.10.

[48]

Reading Rule 60 as a whole, I consider that,
    like a writ of seizure and sale or a writ of sequestration, also provided for
    under Rule 60, a writ of possession is a tool to enforce a pre-existing court
    order
[11]
:
    see also
Bank of Canada v. Ehtisham
, 2010 ONSC 1528, at para. 9.

[49]

At para. 31 of his affidavit sworn August 7,
    2020, the purchasers solicitor, Mr. Dhillon, deposes that [a]t all material
    times, 1103 Inc. knew that it was purchasing the Property under Power of Sale
    and without possession. On the record before me, the purchaser assumed the
    risk of purchasing the property without insisting on vacant possession on
    closing and subsequently has taken no steps to put itself in a position to
    obtain timely court enforced possession of the property.

[50]

In these circumstances, I fail to see why the
    purchasers circumstances should favour foreclosing the appellants right of
    appeal. The purchaser is not in a position to immediately obtain court enforced
    possession of the property if the appellants motion is dismissed. In any
    event, its
carrying costs with
    respect to the property are currently being offset to some degree by the rental
    payments ordered by Woollcombe J. commencing September 2021 (in the amount of $4500
    per month).

Criteria (vi) - The Justice of the Case

[51]

In addition to their arguments about timeliness,
    the merits of the appeal and prejudice, the responding parties point to various
    other factors they say indicate the justice of the case favours dismissing the
    appellants motion.

[52]

These factors include: i) an assertion that 1103
    is a
bona fide
purchaser for value of the property; ii) the
    appellants default under the charge and continuing occupation of the property;
    and iii) unclean hands or misrepresented evidence concerning matters such as
    her relationship with Bobby Abrahams, whether she raised her children at the
    property, and lack of explanation as to why the money to close the February 28,
    2020 agreement of purchase and sale was not paid into court until May 2020.

[53]

As I have said, I am satisfied that the
    appellant has raised arguable grounds of appeal and I am not satisfied that the
    factors of timeliness or prejudice to the responding parties support
    foreclosing the appellants right of appeal.

[54]

Concerning the additional matters raised by the
    responding parties, item i) depends on the outcome of the appeal.

[55]

Concerning item ii), the issue now is not the
    appellants default under the charge. Rather, it is the propriety of the responding
    parties conduct in carrying out the sale under power of sale. That depends on
    the outcome of the appeal. Moreover, the issues on appeal are not restricted to
    the
bona fides
of the March 9, 2020 transfer but also include whether
    a proper price was obtained.

[56]

Concerning item iii), no doubt there are issues
    around the complete terms of the Abrahams agreement of purchase and sale and
    why closing funds were not paid into court until May 2020. On the other hand,
    there is an issue about the inflated discharge statement delivered by Bindaas
    real estate lawyer on February 28, 2020 and the failure of any lawyer on behalf
    of Bindaas to respond to inquiries about the statement, attend the appellants
    motions relating to the discharge amount or disclose the pending sale to 1103.

[57]

In all the circumstances, I am satisfied that
    the relief requested by the appellant should be granted but on terms concerning
    proceeding with the appeal.

Disposition

[58]

Based on the foregoing reasons, the Registrars
    order dismissing the appellants appeal for delay shall be set aside provided
    that the appellant has taken all necessary steps to perfect the appeal,
    including filing any fresh evidence application but excluding filing the formal
    order under appeal and/or the transcript(s) of the motion hearing, within seven
    days of the release of these reasons subject to the following conditions:

i)

the appellant shall proceed forthwith to settle
    and obtain the formal order under appeal and obtain the transcript(s) of the
    motion hearing and shall serve and file each in a supplementary appeal book(s)
    as soon as possible once obtained;

ii)

the hearing of the appeal is expedited and a
    copy of this order shall be provided to the appeal scheduling unit so that the
    appeal may be scheduled as soon as it is perfected; and

iii)

this order is without prejudice to the
    purchasers right to commence an action for possession of the property if so
    advised.

[59]

The moving party may file submissions on costs
    within 10 days of receipt of these reasons, the responding parties may file
    their submissions within 10 days thereafter with all such submissions subject
    to a five-page limit.

Janet
    Simmons J.A.

[1]
The
    moving party also requested an order that the transcripts of the motion hearing
    be sent to the Registrar of this court. However, it is up to counsel, not the
    court, to arrange for and ensure the filing of any relevant transcripts. During
    the oral hearing, counsel submitted that the transcripts of the motion hearing
    have now been filed. However, the transcript(s) are not in the court file.

[2]
Although Brinder Nagra was a named chargee pursuant to an assignment of charge
    at the time of the transfer under power of sale and was a named transferor in
    the transfer, the parties seem to be treating Bindaas as the chargee.

[3]
The
    first charge was originally in favour of Bindaas, Sujoy Pal and Dr. Mangesh
    Inamdar Medicine Professional Corporation, but it was subsequently assigned to
    Bindaas and Sujoy Pal on February 12, 2019 and to Bindaas and Brinder Nagra on
    July 11, 2019.

[4]
It
    appears that the appellants motion heard on June 9, 2021 may have been a
    cross-motion she brought in response to a motion by the purchaser and the
    purchasers principal (Shan Mangal) on November 24, 2020 requiring the
    appellant to pay expenses associated with her continued occupation of the
    property or, in the alternative, for a writ of possession: endorsement of Andre
    J. dated November 26, 2020; endorsement of Woollcombe J. dated August 18, 2021.

[5]
Because the record before me does not include the exhibits to the responding
    parties affidavits filed before the motion judge, I am unable to verify that
    this chronology is completely accurate.

[6]
The
    responding parties material is inconsistent concerning whether this action was
    to enforce the first charge or the second charge. At para. 28 of an affidavit
    sworn August 7, 2020, Mr. Dhillon, who acted for the purchaser, asserts it related
    to the first charge. At para. 19 of an affidavit sworn January 29, 2021, Mr. Randhawa,
    who acted for the chargee, asserts it relates to the second charge. As I have
    said, the affidavits included in record before me do not include exhibits.
    Because Mr. Randhawa asserts that the plaintiffs in the action were Bindaas,
    Pal and Inamdar Corp., the chargees in the first charge, I conclude it is more
    likely that this action related to the first charge. This is relevant because
    s. 42(1) of the
Mortgages Act
, R.S.O.
    1990, c. M.40, prohibits action being taken to enforce a mortgage/charge during
    a notice period under a notice of sale. However, contravention of s. 42 likely
    only affects the validity of the action, not the notice of sale:
Assari v. Kuchar
, 2010 ONSC 4828, at
    para. 45. Here, the action on the first charge has been settled and judgment
    granted concerning the claim for payment on the covenant. To the extent that
    the action may have included a claim for possession, a fact which I am unable
    to determine based on the record before me, this issue may be relevant to the
    enforceability of that aspect of the claim.

[7]
The
    title of proceedings refers only to the action on the first charge, but the
    body of the judgment refers to both actions.

[8]
This
    comes from para. 22 of the motion judges reasons. However, no particulars of
    the date or parties involved are provided. From the context, however, it
    appears the discharge statement was likely requested on February 26 or 27,
    2020.

[9]
Although not referred to in Andre J.s endorsement, a subsequent endorsement by
    Woollcombe J. indicates this relief was requested.

[10]
In
    directing that the matter be heard on June 9, 2021 and that monies be paid into
    court, Andre J. referred to the appellants counterclaim. However, the
    context suggests that he was referring to the appellants cross-motion.

[11]

Nothing in these reasons should be taken as challenging the
    validity of the orders of Andre J. or Woollcombe J. Unappealed, they stand as
    valid orders.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Noureddine,
2022 ONCA 91

DATE: 20220202

DOCKET: C66593

Simmons, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chad Noureddine

Applicant (Appellant)

Carol Cahill, for the appellant

Amy Alyea, for the respondent

Heard: December 9, 2021

On appeal from the conviction entered on
    June 7, 2017, by Justice Edward Then of the Superior Court of Justice, sitting
    with a jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for the second
    degree murder of Andre Pelliccione following a trial before a judge and jury.

[2]

Mr. Pelliccione's body was found in a dumpster in
    Toronto on August 27, 2008. The appellant and four others were
    initially charged with first degree murder.

[3]

The appellant and Richard Sheridan were tried
    together. The other three accused pleaded guilty to manslaughter. Bryan Smith
    was sentenced to eight years of imprisonment; Jennifer Dunsford to five years;
    and Michelle Sterling to two years. All three testified for the Crown at the
    appellant's trial. Their testimony was the only evidence implicating the
    appellant in the killing.

Background Facts

[4]

The appellants co-accused, Mr. Sheridan, was
    addicted to, and trafficked in, crack cocaine. Mr. Sheridan befriended the
    owner of Don Yards, a movie trailer storage facility in Torontos east end. The
    owner allowed Mr. Sheridan to reside in one of the recreational vehicles
    situated on the lot in order to provide security services for the premises. Mr.
    Sheridan in turn permitted the appellant, as well as Mr. Smith, Ms. Sterling,
    and Ms. Dunsford, to reside on the premises from time to time. They too were addicted
    to crack cocaine. They purported to assist Mr. Sheridan in providing
    security but actually worked in his crack cocaine operation. Mr. Sheridan was
    the undisputed leader of the crack cocaine operation.

[5]

On the evening of August 22, 2008, Mr. Pelliccione
    came to the Don Yards and encountered Mr. Sheridan. An argument ensued between
    the two men. Mr. Sheridan, the appellant, and Mr. Smith confronted Mr. Pelliccione
    and he was ordered to leave. According to Mr. Smiths testimony, Mr. Pelliccione
    agreed to leave, but threatened to return with men and weapons and kill them
    all. Mr. Sheridan ordered the gates locked, knocked Mr. Pelliccione to the
    ground, and pepper sprayed him. Mr. Smith testified that Mr. Sheridan ordered
    the appellant, Mr. Smith and Ms. Dunsford to kick and punch him, which they did.
    The beating continued in another area behind some dumpsters. The group kept
    kicking and punching Mr. Pelliccione, now also using rocks. He was then dragged
    to another area where the beating continued at Mr. Sheridans direction. The
    appellant hit the deceased in the head with a rock, as did Mr. Smith and Ms. Dunsford.
    Mr. Pelliccione meanwhile begged for his life.

[6]

According to Mr. Smith, he suggested to Mr. Sheridan
    that they end the beating. The three main Crown witnesses testified
[1]
that Mr. Sheridan stated,
    you are either with us or with [Pelliccione], or words to that effect. Ms. Dunsford
    testified that the group knew, at this point, that Mr. Pelliccione had to be
    killed; it was decided he was going to have to die. No one disagreed. He was
    then dragged to another area. Ms. Sterling emerged from a trailer and observed
    the appellant and Mr. Smith beating Mr. Pelliccione. Mr. Sheridan ordered that Mr. Pelliccione
    be placed in another trailer, trailer T19, which he was. At this stage, Mr. Pelliccione
    was drifting in and out of consciousness. While Mr. Pelliccione was still
    alive, Mr. Sheridan ordered the two women to do what needed to be done.
    They both testified that they were threatened with death if they did not
    comply. They proceeded to drop a 19-pound rock on his head, which was provided by
    the appellant. Mr. Smith testified that he heard loud thumps come from the
    trailer when the appellant, Ms. Dunsford and Ms. Sterling were inside.

[7]

In the hours that followed, the appellant
    collected and disposed of the bloody clothes of the two women. Everyone
    showered to eliminate traces of blood. Mr. Sheridan subsequently attempted
    to frame the owner of the Don Yards by ordering the women to spread Mr. Pellicciones
    blood on the owners clothing. This attempt did not prove to be a success.

[8]

Two days after the murder, the appellant, Ms. Sterling
    and Mr. Sheridan attempted to dispose of the body by placing it and the
    19-pound rock in a dumpster on the premises. Mr. Pellicciones body was found
    five days later.

[9]

According to the testimony of Dr. Pollanen, the
    forensic pathologist who conducted the autopsy of Mr. Pelliccione, his ultimate
    cause of death was blunt force injury to the face and head and the mechanism of
    death was blood loss or obstruction of the upper airways and sinuses. Mr.
    Pelliccione had several skull fractures, a broken nose, dislocated cheek bones,
    and significant defensive bruising. Mr. Pelliccione was not reported to have
    struck a single blow in self-defence.

[10]

As mentioned, the five people involved were all
    initially charged with first degree murder and the three Crown witnesses were
    in custody on those charges when they gave their police statements.

[11]

The appellant and Mr. Sheridan were convicted of
    second degree murder after their first trial but successfully appealed the
    convictions. Their second trial again resulted in convictions for second degree
    murder, and the appellants conviction following the second trial is the
    subject matter of this appeal.

[12]

At trial, Ms. Dunsford, Mr. Smith and Ms. Sterling
    gave different accounts of what had happened. The jury heard extensive evidence
    of their discreditable backgrounds, the withdrawal of each of their first degree
    murder charges in exchange for manslaughter plea deals, and that they were each
    heavily addicted to crack cocaine which impaired their ability to remember.

[13]

The appellant's position at trial was that the evidence of these
    three Crown witnesses concerning his participation in the beating was neither
    credible nor reliable. All three had participated in the killing, all three
    were charged with first degree murder when they made statements to the police,
    and all three acted in their own self-interest to minimize their individual
    roles and embellish the roles of others. Further, there were specific problems
    with the evidence of each of them.

[14]

For instance, Ms. Sterling admitted to perjury at the appellant's
    first trial. She also lied to the police in the first 85 pages of her police
    statement claiming she was not present at the killing. Further, she was not
    forthcoming in her evidence at the second trial. Ms. Dunsford had given many
    inconsistent statements, she had a poor memory that was exacerbated by
    persistent heavy drug use, including drug use on the evening in question.
    Nonetheless, she maintained her present memory was more accurate than a
    previous version of the events. Mr. Smith was an unsavoury witness with a
    lengthy criminal record that began when he was age twelve.

Grounds of Appeal

[15]

The appellant raises four grounds of appeal, all
    related to the trial judges jury instructions: (1) the trial judge erred by
    limiting the use the jury was entitled to make of Mr. Smiths criminal record;
    (2) the trial judge provided an insufficient
Vetrovec
instruction
[2]
; (3) the trial
    judge failed to set out the defence position on intent and motive; and (4) the
    trial judge erred in leaving with the jury an alternate path to conviction that
    had not been included in the Crowns closing submissions. The appellant submits
    that this was not a balanced charge and that these errors, either individually
    or taken together, resulted in an unfair trial.

[16]

We do not agree and, for the following reasons,
    dismiss the appeal.

Use of Mr. Smiths Criminal Record

[17]

The appellant submits that the trial judge erred
    in limiting the use the jury could make of Mr. Smiths criminal record to the
    fact, number, and nature of the convictions when assessing his credibility and
    the weight to be given his testimony. At trial, the appellants position was
    that Mr. Smith minimized his involvement in Mr. Pellicciones death and
    exaggerated the appellants involvement. On appeal, the appellant submits that
    the trial judge should have instructed the jury that, in addition to the fact,
    number and nature of Mr. Smiths convictions, they could consider Mr. Smiths
    disposition to minimize his wrongdoing when assessing whether he was similarly
    downplaying his role in Mr. Pellicciones death and exaggerating that of
    the appellant. To quote appellants counsel on appeal, when questioned about
    his criminal record, Mr. Smith became the valiant hero of his own
    stories.

[18]

We do not accept this submission. The trial
    judges instruction to consider the fact, number, and nature of previous
    convictions must be considered in the context of the charge as a whole. The
    trial judge gave a lengthy, detailed and thoughtful charge and gave a
    comprehensive instruction on how to assess a witnesss testimony. When he came
    to the instruction on criminal records, he advised the jury that the three
    Crown witnesses each had a criminal record and referenced many entries for Ms.
    Dunsford and Mr. Smith in addition to the manslaughter convictions. When
    instructing on the previous convictions of the three, he told the jury what
    they could consider and that some convictions, such as those involving
    dishonesty, may be more important in their assessment than others. The jury was
    also told to consider the age of the convictions. However, overall, the prior
    convictions were just one of many factors for the jury to consider in
    evaluating a witness evidence and they were encouraged to use their experience
    and common sense in their evaluation.

[19]

The trial judge also gave a special instruction
    with respect to Mr. Smith, Ms. Dunsford and Ms. Sterling on the
    significant risk that an accomplice may be falsely minimizing his or her
    involvement, and that the accomplice may be giving evidence favourable to the
    Crown because the Crown had consented to a favourable plea bargain. He gave a
    further instruction on the increased care required for the evidence of Mr. Smith
    because he was an unsavoury witness given his extensive criminal record. Considered
    in context, the trial judges instruction on the use to be made of Mr. Smiths
    criminal record would not have improperly limited the jurys consideration of
    his credibility. Nor would it have in any way foreclosed the jurys
    consideration of a tendency to minimize his wrongdoing at the expense of
    others.

[20]

Moreover, Mr. Smith was cross-examined at length
    on the facts of his convictions and his tendency to portray himself as a
    victim. The jury would have understood the thrust of this cross-examination. The
    closing addresses of both defence counsel also highlighted Mr. Smiths
    shortcomings and tendency to describe himself in a favourable light and to
    minimize his involvement in the killing of Mr. Pelliccione. For example, counsel
    for Mr. Sheridan argued, Mr. Smiths memory is clearly unreliable and, at
    times, his evidence, I think doesnt really accord  it doesnt make sense and
    he has a real tendency to portray himself as a victim of every bad circumstance
    he finds himself in. He went on to describe Mr. Smiths evidence on his
    past convictions as preposterous. The trial judge in his charge reiterated
    the appellants closing submission that the evidence of the three main Crown
    witnesses was manifestly unreliable.

[21]

We are satisfied that any concerns relating to
    any tendency by Mr. Smith to downplay his role at the expense of the appellant
    were fully addressed and would not have been lost on the jury. We dismiss this
    ground of appeal.

Vetrovec
Instruction

[22]

Second, the appellant takes issue with the trial
    judges
Vetrovec
instruction. There are two components to this
    submission.

[23]

As part of his instruction on the criminal
    records of the three main Crown witnesses, the trial judge stated that it was
    fair to say that none had been convicted of any other offences since the
    related conviction for manslaughter in 2010 and that the jury would note the
    efforts made by all three with respect to rehabilitation. The
Vetrovec
instruction followed shortly afterwards.

[24]

The appellant submits that the
Vetrovec
instruction was watered down by the trial judges comments on the time gaps in
    the criminal records and rehabilitation efforts. He also argues that the trial
    judge further erred by failing to
mention other specific
    concerns relating to the veracity of the evidence of these three Crown
    witnesses
. These concerns included Mr. Smiths and Ms. Dunsfords
    inconsistent statements and Ms. Sterling being an admitted perjurer and lying
    to police.

[25]

We do not accept these submissions. Trial judges
    are owed considerable deference in framing a
Vetrovec
caution as they
    are better situated than appellate courts to determine how to provide an
    effective and balanced caution tailored to the circumstances of the case:
R.
    v. Zebedee
, 81 O.R. (3d) 583 (C.A.), at para. 83. Moreover, a
Vetrovec
instruction should not be reviewed in isolation:
R. v. Salah
, 2015
    ONCA 23, 319 C.C.C. (3d) 373, at para. 106. Here, read in the context of the proceedings
    and the rest of the charge, the warning served its cautionary purpose. The
    trial judge gave considerable guidance on the evidence of the three main Crown
    witnesses. He addressed their guilty pleas to manslaughter and their negotiated
    plea agreements, their prior criminal records, their prior inconsistent
    statements, and gave a special instruction relating to their role as
    accomplices and the danger of relying on their evidence in the absence of any
    confirmatory evidence. The trial judge also described additional reasons why
    the utmost care and caution should be exercised including the effect of the witnesses
    addiction to crack cocaine on their credibility and reliability.

[26]

Concerning the watering down argument, one of
    the factors to be considered with respect to criminal records is whether they
    are dated. The trial judge noted that the prior convictions were just one of
    many factors for the jury to consider and the brief reference to rehabilitation
    and the time gaps served to provide a balanced charge. When defence counsel
    raised an objection to this instruction at trial, the trial judge considered
    the issue overnight and declined to say anything further. We see no basis on
    which to interfere with the trial judges exercise of discretion. We also note
    that the trial judges brief comments about rehabilitation and the time gaps
    were followed by a strong
Vetrovec
warning, and several specific references
    to inconsistencies in the evidence of the three main Crown witnesses, and
    defence counsels submissions. We are satisfied the jury would not have been
    left in any doubt about the serious shortcomings in the evidence of these three
    Crown witnesses.

[27]

As for the appellants complaint that the trial
    judge failed to mention other specific concerns relating to the veracity of the
    evidence of these three Crown witnesses, this is not borne out by the charge.
    Apart from his more generalized instructions on how to assess the witnesses
    testimony, as mentioned, the trial judge also provided a specific instruction
    on accomplices and specific examples of inconsistencies and concerns relating
    to each witness. In particular, without objection by the Crown, the trial judge
    included a list of inconsistencies provided by defence counsel and advised the
    jury that it could be of assistance to them. We do not accept that the trial
    judge was required to do more. The assessment of the Crown witnesses
    credibility and reliability was squarely within the jurys purview. We are
    satisfied they were well equipped to fulfill that responsibility.

[28]

Lastly, concerns relating to the credibility and
    reliability of the three were self-evident. As Watt J.A. stated in
R. v.
    Bradey
, 2015 ONCA 738, 127 O.R. (3d) 721, at para. 136: Where an
    appellant claims that a

Vetrovec
    caution is deficient because a trial judge failed to provide an exhaustive
    catalogue of the reasons for the caution, we should consider whether the
    characteristics omitted were latent or self-evident. It was abundantly clear
    that the credibility and reliability of the three main Crown witnesses were
    very much in issue and that their testimony was potentially dangerous given
    that they were accomplices who had secured plea agreements.

[29]

We reject the submission that the effectiveness
    of the
Vetrovec
caution was diminished in any way.

[30]

We dismiss this ground of appeal.

Relating Defence Position on Intent and
    Motive

[31]

On the issue of intent, the Crowns position in
    part was that the appellant was present while Sheridan led the discussion that
    they were all part of a family and Pelliccione had to die. He did not dissent. [The
    appellant] formed the fixed intention along with that of [Sheridan] that Pelliccione
    had to die. Ms. Dunsford had described this discussion in her testimony at
    trial.

[32]

The appellant submits that the trial judge erred
    in failing to alert the jury to the flaws and weaknesses in the Crowns
    evidence on intent. The appellant argues that there was no evidence that he was
    present during the discussion, was aware of what was being said, or agreed that
    Mr. Pelliccione had to die. The appellant also submits that the trial judge
    erred in leaving the question of intent with the jury because any inference
    that he was present for the discussion on which the Crown relies was
    speculative.

[33]

We do not accept these submissions. The trial
    judge began his instructions relevant to the issue of intent with a brief
    summary of the positions of the Crown and the defence. He then proceeded to
    review how intent was relevant to the different modes of participation, the
    relevant evidence and then reviewed in further detail the positions of counsel.
    This included the defence position that the Crown had not led any evidence of
    the appellants intent and that the evidence was so weak as to amount to no
    evidence at all.

[34]

Ms. Dunsford had testified that in the group
    discussion, it was decided that Mr. Pelliccione was going to have to die and
    that no one disagreed. An inference of intent was clearly available especially
    given that there was evidence that the appellant had been present during each
    escalating step of the beating, had been an active participant, including hitting
    and throwing rocks at Mr. Pelliccione, and had provided Ms. Dunsford and Ms. Sterling
    with the 19-pound rock used to hit him in T-19. The trial judge made no error
    in leaving this issue with the jury; an inference of intent was available on
    the evidence and was not speculative. Furthermore, as already discussed, the
    jury would have been well aware of the problems associated with Ms. Dunsfords
    evidence.

[35]

On the issue of motive, the appellant submits
    that the trial judge erred by failing to state to the jury the defence position
    that there was no evidence that the appellant was aware of Mr. Pellicciones
    threat that he would return with men and weapons and kill them or that he took
    this threat seriously. As with the issue of intent, the appellant submits that
    the jury would have had to speculate to infer motive.

[36]

Again, we are satisfied that the inference that
    the appellant was present and aware of this threat was available on the
    evidence, particularly given the evidence of Mr. Smith. The trial judge
    exercised his discretion not to recharge the jury, having concluded that the
    jury was fully equipped to address this issue. We agree and would not give
    effect to this ground of appeal.

Use of Crown Summary

[37]

Both the defence and the Crown provided written
    summaries of their positions to the trial judge following their closing
    addresses. The trial judge read their summaries to the jury. The defence
    objected, stating that the Crown had articulated an alternative path to
    conviction that had not been addressed in their closing, namely that the
    appellant had played a supervisory role and remained in the trailer to ensure
    that the two women killed Mr. Pelliccione. He argued that the jury should be
    instructed to disregard that theory, but the trial judge did not do so. Now
    before this court, the appellant argues that the Crown was in effect provided
    with a right of reply to the defence closing, deprived the defence of the
    opportunity to respond, and this resulted in trial unfairness.

[38]

We reject this ground of appeal.

[39]

The Crown made it clear in his pre-charge
    submissions that the Crown theory was that the appellant was liable for either
    manslaughter or second degree murder, as his participation from beginning to
    end was a substantial contributing cause of Mr. Pellicciones death. The Crown
    also made it clear that the appellant and Mr. Sheridan were potentially liable
    as either co-principals or parties to the offence. Then in his closing
    submissions, which were made prior to the written summaries being provided to
    the trial judge, the Crown stated to the jury that Chad Noureddine
    provided the rock and was there to make sure they did what they were told.

[40]

A trial judge has a duty to instruct the jury
    on all routes to liability which arise on the evidence:
R. v. Pickton
,
    2010 SCC 32, [2010] 2 S.C.R. 198, at para. 19;
R. v. Saleh
, 2019
    ONCA 819, 380 C.C.C. (3d) 445, at para. 168. Moreover, as noted by Cory J. in
R.
    v. Rose
, [1998] 3 S.C.R. 262, at para. 103, there is no evidence that an
    accused who addresses the jury first is less able to defend against the
    persuasive aspects of the Crown jury address than an accused who goes last.

[41]

The defence was alerted to the Crowns position
    and the trial judge was obliged to instruct on all routes to liability. We are
    not persuaded that a corrective instruction was required or that any trial
    unfairness ensued.

Disposition

[42]

For these reasons, we dismiss the appeal.

Janet
    Simmons J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.

[1]
Although all three main Crown witnesses testified they heard this
    statement, their evidence concerning when it was made was inconsistent.

[2]

Vetrovec v. The Queen
,
    [1982] 1 S.C.R. 811.


COURT OF APPEAL FOR ONTARIO

CITATION: Tharani Holdings Inc. v.
Metropolitan Toronto Condominium Corporation No. 812, 2022 ONCA 93

DATE: 20220131

DOCKET: C69209

MacPherson, van Rensburg and
Roberts JJ.A.

BETWEEN

Tharani Holdings Inc.

Applicant (Appellant)

and

Metropolitan
Toronto Condominium Corporation No. 812,

Anil
Jhamtani, Nina Evans, Selvan Veerasingam, Sritharan

Sabaratnam, Joe Accardo and Aksharan Sritharan

Respondents (Respondents)

Pradeep Chand, for the appellant

Karen Kisiel, for the respondents

Heard: January 25, 2022 by
video conference

On appeal from the order of Justice Edward
M. Morgan of the Superior Court of Justice, dated February 22, 2021.

REASONS FOR DECISION

[1]

At the conclusion of the hearing of this appeal we advised that the
appeal was dismissed with reasons to follow. These are our reasons.

[2]

The appeal concerns challenges to the administration of
Metropolitan Toronto Condominium Corporation No. 812 (MTCC 812), which is a
condominium corporation consisting of 64 commercial units and appurtenant
common elements, located on Markham Road in Toronto. The affairs of MTCC 812
are governed by a board of directors consisting of five volunteer directors.
The appellant Tharani Holdings Inc. (Tharani Holdings) owns three units in
the building.
Mr. Balasubramaniam Palaniappa is the principal
of Tharani Holdings.

[3]

The appellant has pursued other proceedings respecting the management
and control of the board of MTCC 812, resulting in, among other things, a court
order requiring the holding of an annual general meeting.

[4]

The appellant commenced an application against MTCC 812, five of
its current and former directors and its property manager. The notice of
application, which is 22 pages long, alleges numerous
breaches
of the
Condominium Act, 1998
, S.O. 1998, c. 19 (the Act), General Regulation O. Reg. 48/01,
and the by‑laws and board election procedures of MTCC 812. The appellant
sought, among other things, the removal of the respondent directors, the
appointment of an inspector, the application of the oppression remedy, and
damages.

[5]

The application judge dismissed the application.
He noted that the appellants arguments, stripped to their core, concerned
various alleged technical breaches of the Act or other regulations by the
respondents. They lacked a central, overarching focal point, and were
comprised of what appear to be formalistic errors made by the [MTCC 812] board
that amount to little in substance: at para 3. He characterized the
appellants position as follows: [B]reach of the rules is a breach of the
rules, and a breach demands a remedy regardless of the effect (or non-effect)
of the breach: at para. 18. Considering the appellants allegations on the
whole, the application judge concluded that they failed to demonstrate any
evidence of substantively harmful conduct by the respondents.

[6]

Although a number of issues are raised on
appeal, in essence the appellant makes two arguments: that the application
judge engaged in conduct giving rise to a reasonable apprehension of bias; and
that he failed to conduct the necessary analysis in refusing to grant a remedy.

[7]

There is no merit to the bias allegation.
Referring to a transcript of the hearing, the appellant points to passages
where the application judge characterized the appellants complaints as a
litany of petty, stuff, petty disputes and no big picture, and asked the
appellants counsel to provide an overview, and to indicate whether there was
anything big, or whether it was a litany of small, small bickering with the
Board.

[8]

Contrary to the appellants submission, these
comments did not suggest that the application judge had pre-determined the
issues in the application; rather, they
were a
reasonable effort on the part of the application judge to ascertain the basis
on which the appellant was seeking various remedies, and whether there were
grounds for the relief that was sought. As the application judge demonstrated,
he was open to hearing the appellants substantive complaints that would give
rise to a remedy.

[9]

As for the submissions concerning the
application judges failure to impose certain remedies: declaring the automatic
disqualification of MTCC 812s directors for not complying with disclosure
requirements under s. 29 of the Act and ss. 11.6 and 11.10 of O. Reg. 48/01; a
compliance order under s. 134 of the Act; the appointment of an inspector under
s. 130; or relief under the oppression remedy section, s. 135, there is no
reason to interfere with the application judges decision that no remedy was
warranted for what were essentially technical breaches.

[10]

First, the application judge considered the
evidence and concluded that, while the directors may not have formally
disclosed their identities, and the fact that in some cases their units were owned
by family members or their personal corporations, the appellant knew the
identities of the directors. In the absence of any actual harm to the
appellant, it was within the discretion of the application judge to decline to
disqualify the respondent directors. Indeed, the application judge reasonably
concluded that an order disqualifying the directors and requiring a new
election could put the affairs of MTCC 812 in disarray.

[11]

Nor did the application judge err in failing to
consider or invoke the oppression remedy under s. 135 of the Act, to make a
compliance order or to award damages under s. 134, or to appoint an inspector
under s. 130. He reasonably concluded that, without evidence of any harm or
prejudice to the appellant, there was no basis for an oppression remedy or for
any other remedy.

[12]

On appeal the appellant did not argue that the
application judge had overlooked or ignored evidence of actual harm or
prejudice it had sustained as a consequence of any irregularities in MTCC 812s
administration, or point to any such evidence. Rather, the argument on appeal,
as at first instance, was that any breach of the Act, regulation or condominium
governing documents, required a remedy. The application judge reasonably, and
in our view correctly, observed that the remedial provisions in the Act are
permissive. And, contrary to the appellants submission, the application judge
assessed the various complaints cumulatively, finding that there was no
evidence, overall, of substantively harmful conduct by the Respondents: at

para. 21.

[13]

The application judge was well aware and
critical of the various irregularities the appellant had argued. He stated in
para. 43:

[A]lthough there is no real wrongdoing by the
board, and the current board shall remain in place until the next election is
held pursuant to the requirements of the Act, regulations and corporate
by-laws, the Condo Corps board effectively brought this proceeding on itself.
Its own lackadaisical attitude toward the rules governing its operation has
prompted the Applicants intense scrutiny. The Applicant may be the boards
litigation adversary, but the board members and the Condo Corps manager seem
to be their own worst enemy.

[14]

However, there was no evidence that the
irregularities were ongoing or causing real prejudice. Notably, the application
judge pointed out that the auditing of financial statements was underway, and
that there was no practical value in auditing previous fiscal years without
cogent evidence indicating a reason to do so.

[15]

In exercising his discretion to refuse a remedy
under ss. 130, 134 and 135 of the Act, the application judge was entitled to
conclude that the appellants grievances raised technical breaches of the Act
that did not require a remedy. His reasons clearly set out why he dismissed the
application.

[16]

For these reasons the appeal was dismissed, with costs to the
respondents on a partial indemnity basis fixed at $5,300, inclusive of HST and
disbursements.

J.C.
MacPherson J.A.

K.
van Rensburg J.A.

L.B.
Roberts J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person
    referred to in subsection (1) may, after he or she attains the age of eighteen
    years, publish or cause to be published information that would identify him or
    her as having been dealt with under this Act or the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is
    not in custody pursuant to either Act at the time of the publication.

111(1)          Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having appeared
    as a witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a) is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)  is guilty of an offence punishable on summary
    conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.T., 2022 ONCA 94

DATE: 20220202

DOCKET: C65476

Fairburn A.C.J.O., Gillese and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.T.

Appellant

Michael Davies and Meaghan McMahon, for
    the appellant

Jennifer Trehearne, for the respondent

Heard: January 28, 2022 by
    video conference

On appeal from the conviction entered by
    Justice S. March of the Ontario Court of Justice (Youth Justice Court) on
    January 16, 2018.

REASONS FOR DECISION

Overview

[1]

On August 13, 2016, the appellants father was shot through the
    top of his head while lying on the couch in the living room of the family home.
    The couch was visible from the appellants bedroom doorway. The bullet found lodged
    in the fathers head was similar to one that could have been shot from a .22 calibre
    rifle. A .22 calibre rifle, along with a spent .22 calibre shell, were found in
    the appellants bedroom.

[2]

There is no certainty around
    the time of death. What is certain, though, is that on the day that his father
    was killed, the
appellant was captured on video at just
    after 6:00 p.m., in his fathers car, purchasing food at a fast-food restaurant
    close to the family home.
A GPS in that vehicle established that the appellant
    drove from the area of the family home, to the area of the fast-food restaurant,
    and then on to Montreal. The appellant was arrested in Montreal the next day.
    In his possession were: (i) the receipt from the fast-food restaurant,
    confirming that the time of purchase was just after 6:00 p.m.; (ii) the fathers
    identification cards; (iii) the fathers credit card and bank card; (iv) the
    fathers cellular phone; and (v) numerous items of the appellants clothing and
    other personal items.

[3]

There is some dispute as to when the appellants brother, B.T., finished
    work on the day that their father was killed. B.T. was scheduled to work until 7:00
    p.m., but he appears to have clocked out of work at 5:00 p.m. Whatever time he finished
    work, it is clear that B.T. started trying to contact his father around 7:00
    p.m. so that he could get a ride home. When B.T. could not reach his father, he
    eventually sent him a text message, asking where he was. B.T. received no
    response. Ultimately, B.T. took a taxi home, arriving some time after 7:00 p.m.

[4]

After he arrived home, B.T. invited friends over to the family home. Although
    he did not testify at trial, evidence was elicited that, as the evening
    progressed, B.T. appeared increasingly concerned for the whereabouts of his
    father. Eventually B.T.s grandfather attended at the family home and the
    police were called. At just before midnight, the police arrived. They found the
    deceaseds body secreted away in the basement.

[5]

The fathers head had been wrapped in a garbage bag. The appellants
    fingerprints were found on that bag. The fathers body was wrapped in a
    blanket. The appellants blood was found on that blanket. There were also water
    bottles found close to where the body lay. The Crown theory was that the movement
    of the body must have taken some effort, which may have resulted in the consumption
    of water. The appellants DNA was found on two of the water bottles.

[6]

This was a judge-alone circumstantial murder case where the trial judge
    had to resolve a third-party suspect allegation. The defence pointed to B.T. as
    the likely third-party suspect.

[7]

The trial judge provided extensive and careful reasons for finding the
    appellant guilty of second-degree murder. His reasons for judgment are organized
    around ten categories: opportunity, motive, physical evidence at the scene, cause
    and place of death, movement of the body, DNA evidence, fingerprint evidence,
    post-offence conduct evidence, recent possession of stolen property, and
    alternate suspect. In relation to the last category, the trial judge carefully
    explained why the third-party suspect defence did not raise a reasonable doubt.

[8]

The appellant raises three grounds of appeal. For the reasons that
    follow, we are unpersuaded by any of them.

The Movement of the Fathers Body

[9]

While the trial judge found as a fact that the father was killed
    in the living room, having been shot in the head by the appellant, and that his
    body was later moved to the basement, the trial judge was unable to find as a
    fact that the appellant moved the body on his own. The trial judge put it this
    way:

Although I am not able to infer that the accused had on his own
    moved the deceased body from the living room to the storage area in the
    basement, I am satisfied from the expert evidence that the deceased was killed
    in the living room and his body was moved to the basement storage area.
There may have been other persons involved in
    the movement of the body but this does not raise a reasonable doubt that the
    accused did not shoot the deceased.
[Emphasis added.]

[10]

The
    appellant contends that the trial judges reasons demonstrate that he accepted that
    there was more than one person involved in moving the deceaseds body. The
    appellant adds that the evidence in support of that finding was overwhelming in
    nature. The appellant characterizes the trial judges finding regarding how
    many people it took to move the body as a crucial issue on appeal because, as
    he argues, it undermines the trial judges ultimate conclusion that the
    appellant was the shooter. According to the appellant, once the trial judge accepted
    that there was another person at the scene of the crime, someone who was
    involved in the movement of the body, it became entirely plausible that the
    appellant was only an accessory after the fact to murder and not the person who
    actually shot his father.

[11]

As
    always, the trial judges reasons must be read in context.

[12]

First,
    we do not read the impugned sentence  [t]here may have been other persons
    involved in the movement of the body  as the trial judge suggesting that the
    appellant was not involved in moving the body. To the contrary, read in
    context, the trial judges reasons are entirely clear that, at a minimum, he
    found that the appellant was directly involved in moving his fathers body to
    the basement. The trial judge explained that conclusion by focusing upon
    numerous pieces of evidence, including the appellants DNA on the blanket in
    which the deceaseds body was wrapped, the appellants fingerprints on the
    garbage bag in which the deceaseds head was wrapped, and the appellants DNA
    on the water bottles found close to where the body lay.

[13]

Second,
    we do not read the impugned sentence as the trial judge suggesting that there
    was in fact someone else involved in moving the body. Rather, we read the trial
    judge as simply saying that he was not prepared to find as a fact that the
    appellant moved the body on his own. Accordingly, and at its highest, the
    impugned sentence leaves open the possibility that someone else was involved in
    the movement of the body.

[14]

Third,
    there was no evidence at trial that some random person went into the family home
    to help move the body.

[15]

Fourth,
    while the appellant advanced a third-party suspect defence, he pointed directly
    at B.T. as being that suspect. Yet the trial judges reasons make clear why he
    rejected the proposition that B.T. was anywhere near the family home until over
    an hour after the appellant had purchased his fast food and left for Montreal. Given
    the trial judges finding that, at a minimum, the appellant was involved in
    moving the body, and that B.T. did not go home until after the appellant had
    left for good, it is clear that the trial judge rejected that B.T. had anything
    to do with moving the body.

[16]

Fifth,
    there was no need for the trial judge to factually resolve whether someone else
     whoever that may have been  helped move the fathers body to the basement. What
    the trial judge needed to resolve, and in fact did resolve, was who shot the
    appellants father in the head while he lay on the couch. The trial judge
    explained why he found beyond a reasonable doubt that it was the appellant who
    shot his father. The fact that the trial judge could not reach a degree of
    certainty as to whether the appellant moved the body to the basement on his own
    does nothing more than show how carefully he approached the evidence and his
    task. His uncertainty on that point did not dilute or render questionable the
    verdict.

[17]

Finally,
    this was a strong circumstantial case pointing toward the appellant as the
    shooter. The trial judges reasons demonstrate a careful consideration of that
    evidence, giving rise to factual conclusions that were available on the record.
    Among the many pieces of circumstantial evidence that formed the backdrop to
    the prosecution lay the fact that the father was likely killed with a single
    shot from .22 calibre rifle, a .22 calibre rifle was found in the appellants
    bedroom, an empty shell casing fired from a .22 calibre rifle lay nearby, and
    the door to the appellants bedroom had a sightline to where the father lay on
    the couch. Combined with the DNA and fingerprint evidence, as well as the
    reasoned rejection of the third-party suspect defence, this was a strong Crown
    case.

Post-Offence Conduct

[18]

The
    appellant argues that the trial judge erred in his approach to the appellants post-offence
    conduct. The impugned passage follows:

The after-the-fact evidence of the accuseds flight to
    Montreal, with his clothing packed in a bag, in the family car, together with
    the deceaseds cell phone and identification cards, leads me to the conclusion
    that the accused fled the crime scene as he was responsible for the crime.

[19]

The
    appellant argues the trial judge erred by failing to take into account that
    there were alternative inferences that could have been drawn for why the
    appellant may have gone to Montreal with his fathers belongings, as well as a
    packed bag, which alternative inferences undermined the probative value of this
    after-the-fact conduct.

[20]

The
    alternative inferences are said to arise from the trial judges finding that
    more than one person was involved in moving the body. That finding is said to
    act as if it were a defence admission that the appellant moved the body (after
    the deceased was killed by someone else). With that admission-like finding in
    place, the appellant argues that all of the after-the-fact conduct is easily explained
    by an alternative inference: that the appellant fled to Montreal, not because
    he was responsible for murder, but because of a panicked reaction to having
    been at the crime scene and having helped move the body. That alternative
    inference is said to deprive the after-the-fact conduct evidence of its
    probative value.

[21]

Despite
    the capable submissions made, we do not see it that way.

[22]

This
    entire submission rests on a foundation that we have already rejected. We do
    not read the trial judges reasons as having found that more than one person
    was in fact involved in moving the body. We will not repeat what has already
    been said on that point. Therefore, the premise that there was an admission-like
    finding in place falls away.

[23]

What
    we will add is the following.

[24]

First,
    there is no dispute that the trial judge instructed himself correctly on the
    legal principles underpinning circumstantial evidence involving after-the-fact
    conduct evidence and, more broadly, on circumstantial evidence in general.

[25]

Second,
    in our view, the trial judges reasons reveal a careful assessment of the
    after-the-fact conduct evidence. He took into account each of the suggested alternative
    inferences posited by the defence and gave reasons for rejecting them. We see
    no error in his application of the law to the facts as he found them.

[26]

Again,
    the reasons for judgment must be read as a whole, including the findings of
    fact that are well-rooted in the evidentiary record, all of which pointed
    toward the appellant as the shooter and away from alternative theories that
    were, as the trial judge said, largely rooted in speculation.

[27]

The
    appellant also argues that the trial judges characterization of his conduct as
    being after-the-fact is inherently problematic because no one knows when the
    father was killed. While the trial judge said it was before 6:00 p.m., the
    appellant asserts that this was an arbitrarily assigned time, one that is
    admitting of circular reasoning. In other words, if the father was killed after
    the appellant left the family home in the fathers car, then the appellants
    actions could not be properly characterized as being after-the-fact in
    nature.

[28]

We
    do not accept this characterization of the time of death as having been arbitrarily
    assigned. This was a factual conclusion arrived upon by the trial judge, one
    that is well-supported in the record. As before, the trial judge gave extensive
    reasons for why he said that the father was dead and hidden in the basement
    before the appellant left the home for the last time.

The Factual Inferences Drawn

[29]

The
    appellant argues that the trial judge drew numerous unreasonable inferences. He
    made oral submissions on only two of these points. We will deal with them all.

[30]

First,
    the appellant contends that the trial judge made no attempt to resolve the
    evidence that the blood spatter evidence on the couch could have been caused by
    a sneeze. In our view, this was not a factual issue that needed resolution. To
    the contrary, no one disputed that the murder may have taken place on the couch.
    Indeed, having the couch as the location of the murder, as opposed to the
    basement, inured to the benefit of the defence, given that a significant plank
    of the defence argument was that the appellant alone could not have moved the
    body to the basement after his father was killed.

[31]

Second,
    the appellant argues that the trial judge erred by relying upon the fact that, if
    the father had been lying on the couch with his head pointing toward the
    direction of the hallway, it would have been possible to see the top of his
    head from the appellants bedroom doorway. The appellant points to the fact
    that it was equally possible to see the top of the fathers head from B.T.s
    bedroom doorway. While this is true, it does not undermine the inferential
    value of the evidence. The trial judges observation about the position of the
    appellants bedroom doorway, relative to where the fathers head would have
    been had he been lying on the couch, was highly relevant, particularly given the
    location of the .22 calibre rifle and the spent .22 calibre shell.

[32]

Third,
    the appellant argues that the trial judge erred in attaching significance to: (i)
    the appellants DNA found on the blanket in which the body was wrapped; and (ii)
    the appellants fingerprints found on the garbage bag surrounding the fathers
    head. As he argued at trial, the appellant maintains that these were household
    items and that the appellant lived in that household. Therefore, it is
    unsurprising that his DNA and fingerprints were found on those items.

[33]

The
    trial judge was alive to this argument, addressed it, and rejected it. He
    placed evidentiary value in the proximity of the DNA and fingerprints to the
    body of the deceased. Although the fingerprints on the garbage bag undoubtedly
    carry more significant circumstantial heft, it was open to the trial judge to
    see both pieces of evidence in this way. Looked at against the reasons as a
    whole, the DNA and fingerprints were merely two more pieces of circumstantial
    evidence that added to a strong circumstantial case.

[34]

Fourth,
    the appellant says that the trial judge erred in placing any emphasis on the .22
    calibre rifle found in the appellants bedroom because there was no evidence
    clearly linking that gun to the fathers death. The appellant argues that the
    trial judge contradicted himself when saying that the gun appeared to have been
    hidden in haste, particularly in light of the trial judges conclusion that
    the appellants departure from the family home was planned and he was not in a
    panic.

[35]

We
    accept the respondents position that there is no contradiction: one can be in
    haste without being in a panic. We also reject the argument that there was an
    absence of evidence connecting the .22 calibre rifle and shell to the death and
    that the trial judge erred in finding such a connection. The connection was
    palpable on its face.

Disposition

[36]

The appeal is
    dismissed.

Fairburn A.C.J.O.

E.E. Gillese J.A.

G.T. Trotter J.A.