COURT OF APPEAL FOR ONTARIO

CITATION: United
    States v. Viscomi, 2015 ONCA 484

DATE: 20150630

DOCKET: C57211, C57910, C59973, and C59982

Simmons, Cronk and Blair JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant
    to s. 49 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN (C57211, C57910)

The Attorney General of Canada on behalf of the
    United States of America

Applicant/Respondent

and

Marco Viscomi a.k.a. Mark Viscomi

Respondent/Appellant

IN THE MATTER OF the
Mutual
    Legal Assistance in Criminal Matters Act
, R.S.C.

1985, c. 30 (4
th
Supp.)

BETWEEN (C59973)

Marco Viscomi

Applicant/Appellant

and

The Attorney
    General of Ontario

Respondent/Respondent

and

The Attorney
    General of Canada

Respondent/Respondent

AND BETWEEN (C59982)

Brandon Lane

Applicant/Appellant

and

The Attorney
    General of Ontario

Respondent/Respondent

and

The Attorney
    General of Canada

Respondent/Respondent

Julianna A. Greenspan, Joseph S. Wilkinson, and Bradley
    Greenshields for the appellant Marco Viscomi (C57211, C57910 and C59973)

John Norris and Meara Conway, for the appellant Brandon
    Lane (C59982)

Richard Kramer and Nancy Denison, for the respondent The
    Attorney General of Canada (C59973 and C59982), and for the respondent The
    Attorney General of Canada on behalf of the United States of America (C57211)
    and on behalf of the Minister of Justice (C57910)

Robert Hubbard and Michael Fawcett, for the respondent
    The Attorney General of Ontario (C59973 and C59982)

Heard: June 8 and 9, 2015

On appeal from the committal order of Justice K.L.
    Campbell of the Superior Court of Justice, dated May 24, 2013, with reasons
    reported at 2013 ONSC 2829, the order of Justice F.E. McWatt of the Superior
    Court of Justice, dated October 11, 2012, with reasons reported at [2012] O.J.
    No. 4979, and the judgment of Justice M. Code of the Superior Court of Justice,
    dated January 9, 2015, with reasons reported at 2015 ONSC 61, and on judicial
    review of the decision of the Minister of Justice, dated October 17, 2013.

R.A. Blair J.A.:

BACKGROUND AND CHRONOLOGY

[1]

The United States of America sought the extradition of the two
    appellants, Marco Viscomi and Brandon Lane, in two unrelated proceedings
    arising out of charges involving internet luring, child exploitation and child
    pornography.  Both were committed for extradition.

Mr. Lane

[2]

Mr. Lane is wanted in the United States for prosecution on charges relating
    to his administrative role in a child-exploitation enterprise linked to an
    online bulletin board.  The United States-based website, Dreamboard, advertised
    and distributed hard core child pornography.

[3]

Mr. Lanes extradition proceedings are no longer active.  He was
    subsequently convicted in Canada on other child pornography charges and is
    currently serving a nine and one-half year sentence in prison.  He is no longer
    contesting his committal for extradition, but remains involved in these
    proceedings solely for purposes of the constitutional challenge to the
    gathering and sending provisions of the
Mutual Legal Assistance in
    Criminal Matters Act
, R.S.C. 1985, c. 30 (4
th
Supp.) (MLACMA)
    described below.  During the course of the extradition proceedings, the United
    States requested assistance under that legislation to obtain the fruits of
    searches and seizures conducted by the police in Ontario relating to Mr. Lane,
    just as they would do in the proceedings relating to Mr. Viscomi.

Mr. Viscomi

[4]

Mr. Viscomis extradition is sought in relation to an internet
    communication between someone and a 17-year old girl in Virginia Beach in the
    United States on January 5-6, 2012.  The communication took place first in a
    chat room, then by means of a Skype-chat, and finally by way of a Skype
    video call that enabled the person communicating with the girl to see her on a
    webcam, but prevented her from seeing him.  It is alleged that during the
    communication, the person coerced, threatened, extorted and otherwise manipulated
    the girl in ways that led to her exposing her breasts and then engaging in a
    series of explicit sexual and sexually violent activities with her 13-year old
    sister.

[5]

Everyone acknowledges that internet child luring and exploitation
    occurred.  However, the lynch-pin issue concerning the Viscomi proceedings is
    whether he is the someone who was on the other end of the video call.

[6]

Through the computer used by the victim, the Virginia Beach Police were
    able to trace the communications through a residential Internet Service
    Provider (ISP) in Ontario, Zing Networks, to a numerical, ten-digit Internet
    Protocol (IP) address in Ontario.  They learned from the ISP that a Mark
    Viscomi was the subscriber to the IP address and that it had been assigned to his
    account during the night in question.  A residential address in Stouffville,
    Ontario was given for the subscriber.  The Virginia Beach Police also had
    information from a valid Ontario drivers licence abstract, provided by the
    Ontario police, that a Marco Viscomi listed that same address as his
    residential address.

[7]

This ISP information was obtained without prior judicial authorization.
    The governing authority at the time was this Courts decision in
R v. Ward
,
    2012 ONCA 660, 112 O.R. (3d) 321, which held that the police did not require a
    warrant to obtain ISP subscriber information.  Subsequently, the law changed as
    a result of the Supreme Court of Canadas decision in
R v. Spencer
,
    2014 SCC 43, [2014] 2 S.C.R. 212, and prior judicial authorization would now be
    necessary.

[8]

The Virginia Beach Police shared the ISP information it had obtained
    with the Ontario police force.  That information, along with the drivers
    license information, alone formed the basis for the Record of the Case (ROC)
    filed by the United States in support of its application for an order
    committing Mr. Viscomi for extradition.  The United States did not seek to rely
    on any information obtained as a result of searches and seizures by the Ontario
    police.

The Sequence of Events and Proceedings

[9]

Once in the hands of the Virginia Beach and Ontario police forces, the
    ISP information led to a waterfall of activities and proceedings extending from
    at least March 2012 to the date of the hearing before this Court in June 2015.
    These activities and proceedings included:

(i) a warranted search
    of Mr. Viscomis residence in Stouffville and his student residence in
    Chatham-Kent, the seizure of computers and related devices, and the subsequent
    forensic analysis of those computers and devices;

(ii) his arrest on
    March 22, 2012 on Canadian charges of luring a child, extortion, and uttering
    threats, and his release on bail the same day, on consent;

(iii) his subsequent
    arrest on an extradition warrant on August 9, 2012;

(iv) the withdrawal of
    the Canadian charges on August 10, 2012, in favour of the United States
    extradition proceedings;

(v) a detention order
    pending the extradition hearing, issued by Benotto J. (as she then was) on
    August 16, 2012 (Mr. Viscomi remains detained to this day);

(vi) an unsuccessful
    attempt by Mr. Viscomi to obtain disclosure of the fruits of the Ontario
    searches for purposes of his committal hearing  dismissed as frivolous and
    vexatious at the behest of the Crown by McWatt J. on October 11, 2012, with
    reasons released to the parties on October 22, 2012;

(vii) two
ex parte
Gathering Orders issued at the request of the United States on November 6,
    2012 under the MLACMA regime (relating to the fruits of the Ontario search and
    seizure and the Zing Networks information), and an
ex parte
Sending
    Order pursuant to the same legislation permitting the Ontario authorities to
    send that information to the United States authorities on March 12, 2013, all
    of which were issued by Code J.;

(viii) the committal
    hearing and the order of K.L. Campbell J. committing Mr. Viscomi for
    extradition on May 24, 2013;

(ix) the Ministers
    order to surrender, dated October 17, 2013;

(x) Mr. Viscomis
    change in defence counsel in January 2014;

(xi) an
inter
    partes Wilson
motion
[1]
 dismissed by Code J. on September 11, 2014  to re-open the MLACMA
    proceedings, based on allegations of non-disclosure and the effect of the
    Supreme Court of Canadas decision in
Spencer
;

(xii) an application
    for leave to appeal Code J.s decision on the
Wilson
application,
    dismissed by Strathy C.J.O. on October 31, 2014:
R v. Viscomi,
2014
    ONCA 765; and

(xiii) a constitutional
    challenge to the gathering and sending provisions in the MLACMA, dismissed by
    Code J. on January 9, 2015.

[10]

What
    emerges at the bottom of this waterfall of events, for the purposes of the
    proceedings before this Court are: (i) an appeal from the order committing Mr.
    Viscomi for extradition; (ii) an appeal from the disclosure order of McWatt J.;
    (iii) an application for judicial review of the Ministers decision to
    surrender Mr. Viscomi for extradition; and (iv) an appeal by both Mr. Viscomi
    and Mr. Lane against Code J.s dismissal of their constitutional challenge to
    the gathering and sending provisions in the MLACMA regime.

[11]

Many
    issues of a
Charter
and evidentiary nature, including a fresh evidence
    application, were argued in these contexts.  While the constitutional issue
    must be resolved, the proceedings relating to Mr. Viscomis extradition fall to
    be determined on the answer to one simple, discreet question: was it open to
    the extradition judge to draw the inference that he drew from the information
    relating to the IP address and Mr. Viscomis residential address, namely that
    it was Mr. Viscomi who was the user of that IP address at the relevant time?

[12]

In
    my respectful view, the answer to that question is no.  The order for committal
    must be set aside.  Consequently, there is no basis for the Ministers decision
    to order Mr. Viscomis surrender and it, too, must fall.  Except for some brief
    comments on the effect of
Spencer
in the circumstances of this case,
    it is not necessary to deal with the other issues raised, save for the
    constitutional challenge.  The appeal from that challenge, in my view, must be
    dismissed.

[13]

I
    come to these conclusions for the following reasons.

ANALYSIS

A.

The Committal Order

[14]

On
    May 24, 2013, Mr. Viscomi was committed for extradition by order of K.L.
    Campbell J. on the American equivalent of the Canadian crime of child luring.
    The only live issue at the hearing was whether there was sufficient evidence
    identifying Mr. Viscomi as the perpetrator of the offences.

[15]

The
    ROC filed in support of the application indicated the following.  By utilising
    the chat session log and the information contained on the victims computer,
    the Virginia Beach Police were able to trace the computer involved in the
    communication with the victim, through Skype, to an ISP in Ontario, Zing
    Networks, and a ten-digit IP address (24.138.105.47).  Relying on what was then
    thought to be the lawful criminal investigation exception to the privacy
    provisions in
The Personal Information Protection and Electronic Documents
    Act
, S.C. 2000, c. 5 (PIPEDA), the U.S. investigators contacted Zing
    Networks and requested the subscriber information relating to that IP address.
    They were told that the subscriber was a Mark Viscomi at a specific address
    in Stouffville, Ontario (the Stouffville Address), and that that subscriber
    was assigned to that IP address from December 6, 2011 to January 20, 2012, the
    time period spanning the offences.

[16]

The
    ROC also attached an Ontario drivers license abstract and a photograph of
    Marco Viscomi, provided by Canadian law enforcement officials, which showed
    Marco Viscomis address as the Stouffville Address  the same address reported
    by Zing Networks to be associated with the subscriber to IP address
    24.138.105.47.  The ROC indicated that Marco Viscomi was currently living (as
    at August 17, 2012) at a specific address in Chatham-Kent, Ontario (the
    Chatham-Kent Address). A Supplemental ROC, dated October 3, 2012, corrected
    that information to say that Mr. Viscomi was only living at the Chatham-Kent
    Address temporarily in the spring of 2012, but that in August 2012 he was
    living at the Stouffville Address, where he was arrested on the extradition
    warrant.

[17]

From
    this evidence, as well as information about the contractual terms of the ISP
    contract, the extradition judge drew the inference that it was Mr. Viscomi who
    was the
user
of the IP address at the time in question.

[18]

Respectfully,
    this was not an inference that could reasonably be drawn from that evidence.
    The evidence could reasonably lead to a finding that Marco Viscomi, the person
    sought in these proceedings, was the
subscriber
to the IP address at
    the time the crime was committed utilizing that IP address.  However, on that
    evidence alone, it was simply too great a leap to draw the inference that he
    was the
user
of the IP address at the relevant time.

[19]

The
    extradition judge was alive to the proper test to be applied for committal
    under the
Extradition Act
, S.C. 1999, c. 18.  Under s. 29(1), the
    judge shall order committal into custody to await surrender where there is
    evidence admissible under the Act of conduct that, had it occurred in Canada,
    would justify committal for trial in Canada on the offence set out in the
    authority to proceed.  In short, the judge must be satisfied that there is some
    evidence upon which a reasonable jury, properly instructed, could return a
    verdict of guilty:
United States of America v. Shephard
, [1977] 2
    S.C.R. 1067, at p. 1080.

[20]

Where
    the evidence is circumstantial in nature, the extradition judge must conduct a
    limited weighing exercise to ensure the circumstantial evidence is reasonably
    capable of supporting the inferences the prosecution seeks to have drawn.
    However, at this stage of the extradition process it is not the judges role to
    choose between equally reasonable inferences. As long as the inference in
    favour of the Crown is reasonable, the judge must proceed on that basis.  As
    Sharpe J.A. explained in
United States of America v. Leonard
, 2012
    ONCA 622, 112 O.R. (3d) 496, at para. 31:

The extradition judge applied the correct test for committal:
    was there available and reliable evidence upon which a reasonable jury,
    properly instructed, could convict a sought person for the corresponding
    Canadian offence listed in the Authorization to Proceed:
United States v.
    Ferras
, 2006 SCC 33, [2006] 2 S.C.R. 77 (S.C.C.). Where, as in this case,
    the evidence is circumstantial in nature, an extradition judge must weigh the
    evidence, in the sense of assessing whether it is reasonably capable of
    supporting the inferences the trier of fact will be asked to make. If the
    inferences required are within the field of inferences available on the whole
    of the evidence, nothing else matters:
Italy (Republic) v. Caruana
,
    [2004] O.J. No. 5851 (Ont. S.C.J.), Watt J., at para. 153, aff'd 2007 ONCA 488,
    157 C.R.R. 1 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A.
    No. 474 (S.C.C.).

[21]

However,
    as the extradition judge acknowledged, a reasonable inference may not be based
    on speculation.  Many cases have cautioned against conflating a reasonable
    inference, on the one hand, and mere speculation, conjecture, or even an
    educated guess, on the other: see, for example,
R v. Munoz
(2006), 86
    O.R. (3d) 134 (S.C.), at paras. 21-31;
Unites States of America v. Huynh
(2005), 200 C.C.C. (3d) 305 (Ont. C.A.), at paras. 6-7.

[22]

In
R v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at para. 52, Doherty
    J.A. underscored the importance of an inference being grounded in established
    fact:

A trier of fact may draw factual inferences from the evidence.
    The inferences must, however, be ones which can be reasonably and logically
    drawn from a fact or group of facts established by the evidence. An inference
    which does not flow logically and reasonably from established facts cannot be
    made and is condemned as conjecture and speculation.

See also: David Watt,
Watts Manual of Criminal
    Evidence
(Toronto: Carswell, 2014), at § 9.01; S. Casey Hill et al.,
McWilliams
    Canadian Criminal Evidence
, loose-leaf (2014-5), 5th ed. (Toronto: Canada
    Law Book, 2015), at pp. 31-63 to 31-65.

[23]

Here,
    the extradition judge drew the inference that it was Mr. Viscomi who was using
    the identified IP address at the time of the crime.  He did so based upon the
    following evidence in the ROC:

(i) The chat session
    log and the complainants computer revealed the screen name and account name used
    by the perpetrator of the offence of child luring;

(ii) The screen name
    and account name used by the perpetrator of the crime was traced back to a
    numerical, ten-digit IP address in Ontario;

(iii) According to the
    residential ISP in Ontario, the IP address associated with the crime was
    assigned, between December 6, 2011 and January 20, 2012, to Mark Viscomi at
    the Stouffville Address in Ontario. As already mentioned, the crime took place
    on the night of January 5-6, 2012;

(iv) On the respondents
    valid Ontario drivers licence abstract, in the name of Marco Viscomi, his
    residential address is listed as the Stouffville Address, the same residential
    address associated with the relevant IP address identified in the business
    records of the ISP.

[24]

There
    is an initial, but important, caveat to these established facts, however.
    The extradition judge appears to have accepted that the ROC established Mr.
    Viscomis residential address as the address associated with the relevant IP
    address.  Later in his reasons (at para. 18), he makes a similar comment,
    concluding that the residential address obtained from the ISP subscriber
    information and the Ontario drivers license abstract  the Stouffville Address
     showed Mr. Viscomis residential address as the exact same residential
    address
as the one associated with this IP address
 (emphasis added).

[25]

Respectfully,
    this constitutes a misapprehension of the evidence.  There is nothing in the
    ROC to establish that the
subscribers residential address
and the
address
    associated with the IP address
are one and the same.  Indeed, there is no
    evidence to explain what an IP address is, in the context of this case, or how
    it worked.  We do not know on this record whether an IP address identifies a
    particular subscriber only, or a particular device only, or whether it
    identifies a particular residential address at which the IP address is located,
    or even whether the IP address is limited to one particular residential
    location or could have been used at different locations. Although the ISP
    contractual documentation contained in the Supplemental ROC indicates that Zing
    Networks agrees to provide high speed wireless internet service to the
    subscriber, we do not know whether the service was one that could link multiple
    computers or other internet-linked devices at different locations to a shared
    access point or how the service was to be provided in this case at all.

[26]

In
    particular, regarding the inference ultimately drawn about the
user
of
    the IP address at the relevant time, even if one assumes the IP address could
    only have been accessed from the ISP subscribers residential address (
i.e.
,
    Mr. Viscomis residence), we do not know whether it could be accessed by more
    than one person or by more than one internet-linked device at that address.

[27]

The
    uncertainties created by the lack of this type of evidence are reinforced by
    the uncertainties that exist, even when it is available.  As Doherty J.A.
    observed in
Ward
, there is a need to stay within the evidentiary
    record in cases turning on the nature of an IP address because the evidentiary
    record on the subject can vary.  At paragraph 18, he said:

I refer specifically to the need to stay within the evidentiary
    record, usually a self-evident proposition, because a review of other cases that
    have addressed this same issue suggests an understanding of the nature of an
    Internet protocol address ("IP address") that is different than that
    offered by the evidence in this case. Some cases indicate that the IP address
    is "unique to that subscriber", e.g.,
Kwok
, at para. 8, and
    that armed with subscriber information and an IP address the police can compile
    a "history of [the subscriber's] activity on that network":
Trapp
,
    at para. 36, Cameron J.A., for the majority, at para. 78, Ottenbreit J.A., concurring.
    As outlined below, the evidence in this case does not support the contention
    that IP addresses are unique to individual subscribers or that combining an IP
    address with subscriber information allows the police to compile a history of a
    person's activity on the Internet.

[28]

The
    point is that evidence regarding these matters is important because not all IP
    address protocols may operate in the same way.  Here, there is no such evidence
    in the ROC.

[29]

It
    was in the context of the evidentiary record before him in
Ward
that
    Doherty J.A. made the comment  relied on by both sides here  that ISP records
    indicating that an IP address is assigned to a subscriber at certain dates and
    times does not necessarily mean that the subscriber himself or herself was using
    the computer connected to the Internet at that time, or that it was even the
    subscribers computer that was connected to the Internet:
Ward
, at
    para. 23.  Mr. Viscomi relies on this statement for the proposition that
    information regarding the subscriber and the IP address cannot, without more,
    provide the necessary link to draw an inference about who used that IP address
    at a particular time.  The Crown relies on it for the contrary view.

[30]

The
    extradition judge accepted the Crowns position.  He concluded that the
    comments of Doherty J.A. suggest only that ISP subscriber information does not
conclusively prove
that an individual assigned to an IP address at the
    time of an offence committed the alleged offence, given the possibility that
    other individuals may have had access to the internet via the IP address
    assigned to the account (para. 25, emphasis in original), and that the ISP
    information went some distance to identifying [Mr. Viscomi] as the person
    involved in the child luring activities (para. 27).  In short, because the
    ISP information did not necessarily mean the subscriber was using the IP
    address, it also did not necessarily mean he was not.  The inference that Mr.
    Viscomi was using the IP address at the time of the crime could therefore be
    drawn.

[31]

I
    do not read
Ward
in that fashion, and, respectfully, I do not agree.
    The inference that Mr. Viscomi was the
user
of the IP address assigned
    to him at the relevant time is not one that can reasonably and logically be
    drawn from the fact that he was the
subscriber
to that IP address and
    that the residential address for purposes of his subscriber account was the
    same as that shown on the abstract of his drivers licence.

[32]

By
    way of analogy, take, for example, a situation where a car is recklessly driven
    through a red light, striking another vehicle and very seriously injuring a
    passenger in that vehicle. The first vehicle and driver disappear, but an
    observer has taken down the licence plate number and the police are able to
    trace the owner of the vehicle with that information.  The observer did not see
    the driver, and there is no other evidence in relation to the identity of the
    driver of the vehicle at the time. Could the registered owner of the vehicle be
    convicted of criminal negligence causing bodily harm on the basis of the
    foregoing evidence alone?  I would think that to pose the question is to answer
    it in the negative.  See, for example,
R. v. Hicks
(1988), 42 C.C.C.
    (3d) 394 (C.A.), at p. 407, affd [1990] 1 S.C.R. 120;
R. v. Van Wyk
,
    [1999] O.J. No. 3515 (S.C.), at paras. 24-25.

[33]

United
    States of America v. Huynh
is an instructive example of the inference
    drawing process in the extradition context.  Mr. Huynh was sought for
    extradition to the United States on charges involving the laundering of
    proceeds of crime obtained by trafficking in a controlled substance. The
    material relied on in support of the extradition justified the inference that
    Mr. Huynh had conspired with others to covertly transfer very large amounts of
    cash from the United States to Canada. However, the ROC in that case did not
    contain any direct evidence as to the source of the cash. Mr. Huynh was
    nonetheless committed for extradition.

[34]

This
    Court allowed the appeal and quashed the committal. While the material
    identified by the United States permitted the inference that the cash was from
    the proceeds of some illicit activity, there was no evidence as to the source
    of the material, and there was nothing in the material that would reasonably
    permit a trier of fact to infer that the cash was the proceeds of drug
    trafficking and not some other illicit activity. Doherty J.A. put it this way,
    at para. 7:

The material identified by the respondent certainly permits the
    inference that the cash was the proceeds of some illicit activity.
Drug
    trafficking comes readily to mind as one possible source. The process of
    drawing inferences from evidence is not, however, the same as speculating even
    where the circumstances permit an educated guess
. The gap between the
    inference that the cash was the proceeds of illicit activity and the further
    inference that the illicit activity was trafficking in a controlled substance
    can only be bridged by evidence.
The trier of fact will assess that
    evidence in the light of common sense and human experience, but neither are a
    substitute for evidence
. [Emphasis added.]

[35]

Here,
    based on the ISP information, the notion that Mr. Viscomi was the user of the
    IP address assigned to his subscriber account at the relevant time is one that
    may [come] readily to mind as one possible [conclusion]. However, the gap
    between the subscriber information and the factual inference that Mr. Viscomi
    was the user of the IP address at the relevant time can only be bridged by
    evidence.  There is no such evidence in the ROC.  As Doherty J.A. points out,
    speculation, educated guesses, and even common sense and human experience
    cannot provide a substitute for such evidence.

[36]

For
    the foregoing reasons, I conclude that the inference drawn by the extradition
    judge that Mr. Viscomi was the person
using
the IP address at the
    relevant time is not a permissible inference that could reasonably be drawn
    from the established facts in the ROC.  In my view, a reasonable trier of fact,
    properly instructed, could not convict Mr. Viscomi on the basis of the ISP and
    related drivers license abstract information alone.  It follows that the order
    committing Mr. Viscomi for extradition to the United States cannot stand and
    must be quashed.

B.

The Disclosure Order

[37]

In
    view of the foregoing, the order of McWatt J. dismissing Mr. Viscomis
    application for further disclosure in the committal proceeding is somewhat
    academic.

[38]

Suffice
    it to say that I agree with the application judge.  I see no error in the
    exercise of her discretion not to order production of the materials seized by
    the Ontario police to further some subsequent
Charter
challenge when:
    (a) the requesting state made it clear that it was not relying on the fruits of
    that search to support the committal application; and (b) there was no air of
    reality with respect to Mr. Viscomis suggested
Charter
violations.

[39]

I
    would dismiss the appeal from the disclosure order for the reasons given by the
    application judge.

C.

The Surrender Order

[40]

The
    Ministers power to order surrender is predicated on the person sought having
    been committed for extradition.  Section 40(1) of the
Extradition Act
states:

The Minister may, within a period of 90 days after the date of
    the persons committal to await surrender, personally order that the person be
    surrendered to the extradition partner.

[41]

Given
    the decision to quash the order committing Mr. Viscomi for extradition, it
    follows as well that the Ministers decision to surrender him for extradition
    must fall too.

[42]

I
    need not deal, therefore, with the many issues raised by Mr. Viscomi on his
    application for judicial review of the Ministers decision.

[43]

Notwithstanding
    the foregoing disposition, however, the Crown may still decide to institute
    further proceedings, whether on new or the same evidence, provided the new
    proceedings would not constitute an abuse of process:
Extradition Act
,
    s. 4.  That being the case, there is one issue raised in both the committal and
    surrender proceedings that warrants comment, in the event the matter should be
    pursued further.  I refer to the effect of the Supreme Court of Canadas
    decision in
Spencer
.

[44]

In
Spencer
the Court ruled that the police are required to obtain a
    warrant to obtain ISP subscriber information.  That was not the law at the time
    the extradition proceedings were commenced against Mr. Viscomi (and Mr. Lane)
    or at the time the Ontario police utilised the ISP subscriber information
    provided to them by the Virginia Beach Police in order to obtain the warrants
    to search Mr. Viscomis residences.  Prior to
Spencer, Ward
provided
    that ISP subscriber information could be obtained in Ontario without prior
    judicial authorization.

[45]

Mr.
    Viscomi argues that he is entitled to the benefit of the change in law since
Spencer
and that none of the evidence in the ROC  or the fruits of the searches and seizures
    predicated on the warrantless ISP information  is admissible against him and
    must therefore be excluded under s. 24(2) of the
Charter.
There are
    two principal difficulties with this argument, however.  The first is the
    ultimate disposition made by the Supreme Court of Canada on the merits in
Spencer.
The second is the inapplicability of the
Charter
to foreign officials.

[46]

Spencer
involved ISP subscriber information obtained without a warrant.  The Court held
    that procedure to be unconstitutional.  It declined, however, to exclude the
    evidence under s. 24(2) because the police reasonably believed the law did not
    require a warrant at the relevant time.  Given the relative lack of seriousness
    of the
Charter
breach, therefore, and the general interest of society
    in having serious criminal matters determined on the merits, the first and
    third branch of the test set out in
R v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353, militated against the exclusion of the evidence.  I see no material
    difference between the circumstances in
Spencer
and those existing
    here and do not see any basis involving the warrantless ISP search that would
    lead to a different result.

[47]

Turning
    to the second difficulty, it is well-established that the
Charter
governs the conduct of Canadian state actors, but does not apply to the conduct
    of foreign authorities conducting a lawful investigation within their sovereign
    jurisdictions, even where Canadian authorities may have cooperated with them:
    see
R v. Terry
, [1996] 2 S.C.R. 207, at paras. 14-19;
Schreiber v.
    Canada (Attorney General),
[1998] 1 S.C.R. 841, at paras. 27-34;
R v.
    Hape
, [2007] 2 S.C.R. 292;
U.S.A. v. Dynar
, [1997] 2 S.C.R. 462,
    at paras. 136-141.

[48]

Here,
    the Virginia Beach Police were conducting a criminal investigation in the
    United States, in conformity with the laws of the United States (and, at the
    time, with the law in Canada).  The
Charter
does not govern the
    conduct of foreign police in such circumstances:
Dynar
, at para. 139.
    In addition, once they had obtained the ISP information, the Virginia Beach
    Police were entitled to share that information with the Ontario police:
Wakeling
    v. United States of America
,

[2014] 3 S.C.R. 549, at paras. 29 and
    57 (Moldaver J.), and 96 (McLachlin C.J.C.).

[49]

I
    reject the argument that because the Virginia Beach Police purported to rely on
    the law enforcement exceptions in PIPEDA in making their request for the ISP
    information, they were thereby transmogrified into Canadian state actors for
    that purpose.  They were American authorities carrying out an American
    investigation on American soil.  If the mere reliance on what was then a lawful
    procedure in making contact with a Canadian entity turned them into Canadian
    actors in that context, there would be no basis for distinguishing between the
    conduct of Canadian and foreign officials in cases involving international
    police cooperation.  The distinction exists in law, however: see
Dynar
,
    at paras. 138-139. I note that neither Mr. Viscomis nor Mr. Lanes cases
    involved a joint international police investigation.  To the extent the
    proceedings continued at the same time in Canada and the United States, they
    were parallel proceedings only.

[50]

At
    the end of the day, I am satisfied that the
Spencer
factor is of no
    assistance to Mr. Viscomi in the circumstances of this extradition proceeding.

D.

The Constitutionality
    of the Gathering and Sending Provisions of the MLACMA Regime

[51]

At
    approximately the same time as it commenced extradition proceedings against Mr.
    Viscomi, and in separate proceedings against Mr. Lane, the United States took
    steps under the gathering and sending provisions of the MLACMA to obtain
    the fruits of searches and seizures conducted by the police in Ontario with
    respect to the charges against the two appellants.

[52]

Justice
    McWatt issued both gathering and sending orders with respect to the materials
    relating to Mr. Lane on April 23, 2012.  Justice Code issued two gathering
    orders on November 6, 2012 and a sending order on March 12, 2013 with respect
    to the materials relating to Mr. Viscomi.  These applications all proceeded on
    an
ex parte
basis.  Neither judge exercised the discretion open to
    them under the MLACMA regime to give notice to the appellants.

[53]

The
    appellants each challenge the constitutionality of s. 18 (the gathering order
    provision) and s. 20 (the sending order provision) of the MLACMA on the ground
    that they are presumptively
ex parte
 proceedings, that is, there is
    no mandatory requirement for a hearing on notice to the target of the
    investigation before the gathered materials are sent to the foreign
    jurisdiction.  They say that this is unconstitutional because, in their view,
    the target of a foreign investigation must have the right to assert whatever
Charter
or other objections the target may have to the procedure before the fruits of
    the gathering exercise are sent to the foreign jurisdiction, out of the reach
    of Canadian courts, thus rendering them immune to attacks that may be available
    in Canada under Canadian law.  Put another way, they submit that the MLACMA
    gathering and sending regime does not have adequate accountability measures (
i.e.
,
    notice and the right to challenge the authorizations) to pass constitutional
    muster.

[54]

I
    disagree.

[55]

The
    appellants each advance a variety of submissions challenging the legality of
    the search and seizure procedures conducted by the Canadian authorities.  In
    Mr. Viscomis case  leaving aside the
Spencer
issue discussed above
    Code J. dealt with those arguments on the separate
Wilson
hearing and
    rejected them.  Leave to appeal from that decision was denied by Strathy
    C.J.O.  Mr. Lanes case is not as clear.  The extradition judge stayed the
    extradition proceedings on a number of grounds.  However, this Court allowed
    the Crowns appeal from that decision and ordered a new extradition hearing. In
    doing so, the Court rejected the extradition judges most serious findings of
    fact regarding misconduct by the Crown law officers and police officers, but the
    extent to which, if at all, any of the other findings regarding the alleged
    search and seizure violations stand is unclear.  As noted above, Mr. Lane has
    now consented to his committal for extradition, but the proceedings are on hold
    as he is currently in prison in Canada on other charges.

[56]

I
    do not think that the particulars of the individual violations, if any, are of
    much relevance to the constitutional challenge, in any event.  It is evident
    that there may well be occasions under the MLACMA regime where materials that
    might be subject to
Charter
challenge in Canada are sent to a
    requesting state.  The issue is whether there are adequate procedural
    protections  or, as the appellants would put it, accountability measures
    in place under the regime to sustain its constitutional validity under s. 7 and
    s. 8 of the
Charter
.

[57]

Justice
    Code concluded there were.  In a careful and thorough decision, he dismissed
    the constitutional challenge on January 9, 2015.  I agree.

[58]

As
    Charron J. observed, in
R v. Rodgers
, 2006 SCC 15,

207 C.C.C.
    (3d) 225, at paras. 46-47, there is no constitutional guarantee to the most
    favourable procedure available; rather, [t]he constitutional norm  is
    procedural fairness, and whether or not notice and participation are required
    to meet that norm will depend upon the context and what safeguards are in
    place.

[59]

In
    his comprehensive reasons, Code J. considered and analysed:

(i) the gathering and
    sending regime set out in ss. 17-21 of the MLACMA, including the fact that,
    while proceedings are initially mandated to be
ex parte
, both the
    gathering and sending provisions give the hearing judge discretion to impose
    broad terms, including the giving of notice to targets of the investigation;

(ii) a consistent line
    of authority in this Court holding that the MLACMA regime provides for an
    investigatory process to help Canadas treaty partners in criminal
    investigations, that such a process should be dealt with as expeditiously and
    confidentially as possible, and that the proceedings under the MLACMA are
    presumptively
ex parte
for these reasons: see,
United States v.
    Lane
, 2014 ONCA 506, 121 O.R. (3d) 721, leave to appeal to S.C.C. refused,
    [2014] S.C.C.A. No. 425 (the successful Crown appeal of the stay of extradition
    imposed in the appellant Lanes case);
United States v. McAmmond
,
    (2005), 192 C.C.C. (3d) 149 (Ont. C.A.);
United Kingdom v. Ramsden
(1996), 108 C.C.C. (3d) 289 (Ont. C.A.), at paras. 39-40, and 53, leave to
    appeal to S.C.C. refused, [1996] S.C.C.A. No. 443;

(iii) a further line
    of authority relating to different types of investigatory search and seizure
    regimes holding that presumptively
ex parte
proceedings in such
    circumstances do not violate the constitutional norm of procedural fairness
    where procedural safeguards are in place: see
R v. Jackpine
(2004),
    182 C.C.C. (3d) 449 (Ont. C.A.), at paras. 31-32 and 34 (DNA data bank warrants
    for certain convicted offenders), revd in the result but not on this point,
R.
    v. Rodgers
, 2006 SCC 15,

207 C.C.C. (3d) 225 (for concurring
    remarks on this point from
Rodgers
, see paras. 45-48 and 51-55);
R.
    v. S.A.B
., 2003 SCC 60, 178 C.C.C. (3d) 193, at para.
56
    (DNA warrants);
R. v. S.F.
(2000), 141 C.C.C. (3d) 225 (Ont. C.A.), at
    paras.
39-41;

(iv) the appellants
    submissions that the trans-border context of the MLACMA changes the normal
    constitutional principles and requires that notice be given to the target of
    the requesting states investigation before the sought-after materials are sent
    from the jurisdiction; and

(v) the impact of the
    Supreme Court of Canadas decisions in
Wakeling v. United States of America
,
    2014 SCC 72, [2014] 3 S.C.R. 549 (holding that co-operating international
    police forces have a common law right to share lawfully obtained investigatory
    information), and
R. v. Tse,
2012 SCC 16, [2012] 1 S.C.R. 531
    (striking down a wiretap provision in the
Criminal Code
because it
    contained no after-the-fact notice provisions for the target, where there were
    no prior accountability safeguards, including prior judicial authorization).

[60]

At
    the conclusion of his analysis, Code J. held that the gathering and sending
    powers found in s. 18 and s. 20 of the MLACMA comply with the constitutional
    requirement of procedural fairness because of the broad array of s. 7 and s. 8
    safeguards that easily satisfy the contextual test for procedural fairness.
    He summarized the safeguard features of the legislation as follows, at para. 61
    of his reasons:

 First, these are
    "investigative tools" that generally require confidentiality and
    expedition, in order to be effective. Accordingly, there is a strong state
    interest in
ex parte
proceedings;

 Second, the
    investigation of cross-border or international crime is no different than
    domestic crime in this regard. Indeed, Canada's treaty obligations require
    confidentiality and expedition;

 Third, both the s.
    18 and s. 20 search and seizure powers require separate and distinct judicial
    hearings and warrants. The second stage "sending" hearing and warrant
    is a protection that is not found in the analogous legislative schemes of the
    United Kingdom, the United States, New Zealand, and Australia. In other words,
    the Canadian legislation is more protective of s. 8 interests than analogous
    regimes in other free and democratic countries;

 Fourth, the standard
    on which the s. 18 warrant issues is the normal constitutional standard of
    "reasonable grounds to believe that an offence has been committed and
    that relevant evidence will be found. See
Hunter et al v. Southam Inc.
(1984) 14 C.C.C. (3d) 97 (S.C.C.);

 Fifth, the judge has
    discretion not to grant the order, both at the s. 18 and s. 20 stages. See
R.
    v. Baron et al
(1993) 78 C.C.C. (3d) 510 (S.C.C.);

 Sixth, the judge has
    discretion to give notice to any interested party. In addition, the person who
    is the subject of the s. 18 Gathering Order can object and appear at a hearing
    pursuant to s. 18(7);

 Seventh, the judge
    has discretion to impose terms or conditions;

 Eighth, the s. 18
    and s. 20 hearings are based on a written record and the person who carries out
    the Gathering Order prepares a written report, all of which are preserved as
    court records;

 Ninth, the Minister
    controls both the front end and back end of the process, pursuant to ss. 17 and
    21, and can impose additional terms or conditions;

 Tenth, the Act is
    based on treaty obligations that are reciprocal. As a result, Canada can exert
    effective political and diplomatic pressure when there is a risk of misuse or
    abuse in relation to evidence sent by Canada;

 Eleventh, the
    treaties and the sending orders place limits on the use to which the evidence
    can be put;

 Twelfth, there are a
    number of available remedies when MLACMA evidence is used against a suspect or
    an accused, including a right of appeal pursuant to s. 35 of the Act. This
    remedial aspect of the scheme will be further discussed below.

[61]

Justice
    Code also noted that there were a number of after-the-fact remedies that
    remained available to the target of the investigation that weighed in favour of
    constitutionality in the contextual balancing exercise.

[62]

I
    have only briefly summarized the approach taken by Code J. and the reasons
    provided for his decision.  I do not think there is anything to be gained by
    adding a further layer of analysis to the constitutional challenge beyond those
    reasons.  I would dismiss the constitutional challenge to ss. 18 and 20 of
    MLACMA for the reasons he gave, with which I am in substantial agreement.

DISPOSITION

[63]

For
    all of the foregoing reasons, I would:

(i) allow the appeal
    from the order committing Mr. Viscomi for extradition, quash the committal
    order, and order that he be discharged;

(ii) dismiss the
    appeal from the disclosure order of McWatt J.;

(iii) set aside the
    order of the Minister for Mr. Viscomis surrender; and

(iv) dismiss the appeal
    from the order of Code J. dismissing the application of the appellants Viscomi
    and Lane for an order declaring ss. 18 and 20 of the MLACMA unconstitutional.

Released: J.S.  June 30, 2015

R.A.
    Blair J.A.

I
    agree Janet Simmons J.A.

I
    agree E.A. Cronk J.A.

[1]
See R v. Wilson (1993), 9 C.C.C. (3d) 97 (S.C.C.), holding that a court has
    inherent jurisdiction in criminal matters to review its own
ex parte
orders.


COURT OF APPEAL FOR ONTARIO

CITATION: Waye v. Cook, 2015 ONCA 425

DATE: 20150610

DOCKET: C58895

Simmons, Cronk and Blair JJ.A.

BETWEEN

Cynthia Waye

Applicant

(Appellant)

and

George Richard Cook

Respondent

(Respondent in Appeal)

Michael H. Tweyman, for the appellant

D. Smith, for the respondent

Heard: June 10, 2015

On appeal from the order of Justice Nancy Backhouse of
    the Superior Court of Justice, dated May 1, 2014.

APPEAL BOOK ENDORSEMENT

[1]

This court has no jurisdiction to hear this appeal.  The formal order
    contains only the support orders made by the trial judge.  As the appeal is
    from the formal order, not the trial judges reasons,
Hanisch v. McKean
,
    2014 ONCA 698, does not apply.

[2]

Further, the order for retroactive support for the period April 1, 2012
    to April 30, 2014 in the total amount of $53,800 falls within the jurisdiction
    of the Divisional Court under s. 19(1.2) of the
Courts of Justice Act
.
    This is not a lump sum award; rather it is an order for retroactive support
    payable on a periodic basis.

[3]

The appeal is transferred to the Divisional Court.  No order as to
    costs.


COURT OF APPEAL FOR ONTARIO

CITATION: Welsh v.
    Ashley, 2015 ONCA 464

DATE:  20150622

DOCKET: C59466

Juriansz, MacFarland and Lauwers JJ.A.

BETWEEN

Robin Welsh

Applicant

(Appellant)

and

Michael
    Ashley, Michele Ashley and Ontario

Ironworkers/Rodmen
    Benefit Administrators Corporation

Respondents

(Respondents)

Josephine Stark, for the appellant

Jason P. Howie, for the respondents Michael Ashley and
    Michele Ashley

Heard and released orally:  April 24, 2015

On appeal from the judgment of Justice Scott K. Campbell
    of the Superior Court of Justice, dated September 8, 2014.

ADDENDUM

[1]

In our reasons released orally on April 24, 2015, we allowed the appeal
    from the judgment of Campbell J. dated September 8, 2014 and dismissed the
    cross-appeal.

[2]

As the result of our decision and in accordance with the consent of
    counsel, the following declaration of the court should be added to the
    endorsement:

1.

The appellant,
    Robin Welsh, is the sole surviving spouse of the deceased, Michael Poisson, and
    shall receive all benefits payable to a surviving spouse under the pension plan
    of the respondent, Ontario Ironworkers/Rodmen Benefit Administrators
    Corporation; and

2.

The respondent,
    Ontario Ironworkers/Rodmen Benefit Administrators Corporation, pay to the
    appellant (applicant), Robin Welsh, all pension benefits due and owing to the
    appellant (applicant), Robin Welsh, as the sole surviving spouse of the late
    Michael Poisson.

R.G. Juriansz J.A.

J. MacFarland J.A.

P. Lauwers J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Westerhof v. Gee Estate, 2015 ONCA 456

DATE: 20150622

DOCKET: C56514 and C58021

Laskin, Sharpe and Simmons JJ.A.

BETWEEN

Jeremy Westerhof

Plaintiff (Appellant)

and

The Estate of William Gee
and Kingsway
    General Insurance

Defendant (
Respondent
)

and

BETWEEN

Daniel McCallum

Plaintiff
    (Respondent)

and

James Baker

Defendant
    (Appellant)

Jane Poproski, Lou Ferro and Robert Zigler, for the
    appellant Jeremy Westerhof

Kieran C. Dickson and Kenneth J. Raddatz, for the
    respondent the Estate of William Gee

Donald Rollo and David Visschedyk, for the appellant James
    Baker

Paul J. Pape and Joanna Nairn, for the respondent Daniel
    McCallum

Richard Halpern and Brian Cameron, for the intervener the
    Ontario Trial Lawyers Association

William D. Black, Jerome R. Morse and John J. Morris,
    for the intervener The Holland Access to Justice in Medical Malpractice Group

John A. Olah and Stephen Libin, for the intervener the
    Canadian Defence Lawyers Association

Linda R. Rothstein and Jean-Claude Killey, for the
    intervener The Advocates Society

Heard: September 22, 23, 24, 26, 2014

On appeal from the order of the Divisional Court
    (Justices P. Theodore Matlow, David Aston and Thomas R. Lederer) dated June 20,
    2013 with reasons reported at 2013 ONSC 2093, 310 O.A.C. 335, affirming the
    judgment of Justice David S. Crane of the Superior Court of Justice dated
    October 26, 2011, following a decision by a jury; and on appeal from the
    judgment of Justice Gregory M. Mulligan of the Superior Court of Justice dated
    December 20, 2012, sitting with a jury.

COSTS ENDORSEMENT

[1]

Costs of the appeal in
McCallum v. Baker
are to the respondent
    fixed in the amount of $60,000 inclusive of disbursements and applicable taxes.

John Laskin J.A.

Robert Sharpe J.A.

Janet Simmons J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: York
    (Regional Municipality) v. LeBlanc, 2015 ONCA 431

DATE: 20150615

DOCKET: C59828

Juriansz, Lauwers and Huscroft JJ.A.

BETWEEN

The Regional Municipality of York

Plaintiff (Respondent)

and

Jeffrey J. LeBlanc, WeCare Organics, LLC, WeCare
    Transportation, LLC, and WeCare Environmental, LLC

Defendants (Appellants)

Duncan C. Boswell and Julia Vizzaccaro, for the
    appellants

Douglas O. Smith and Aimee Collier, for the respondent

Heard: June 2, 2015

On appeal from the order of Justice M. E. Vallee of the Superior
    Court of Justice, dated December 4, 2014.

ENDORSEMENT

[1]

The appellants, WeCare Transportation, LLC
    (Transportation), WeCare Environmental, LLC (Environmental), WeCare
    Organics, LLC (Organics) and Jeffrey LeBlanc, are named defendants in an
    action brought in Ontario by the respondent, The Regional Municipality of York
    (the Region). The appellants brought a motion to dismiss the action against
    Transportation, Environmental and LeBlanc for want of jurisdiction, and in the
    alternative, staying the action against all appellants on the basis that
    Ontario is not the most convenient forum. This is an appeal of the motion
    judges order dismissing the appellants motion.

[2]

In its amended statement of claim, the Region
    pleads that it entered into an agreement with Organics, whereby Organics agreed
    that Transportation would transport the Regions waste from the Regions
    transfer stations to a processing facility in Massachusetts, owned and operated
    by Environmental, for processing into compost. The Region pleads that Organics
    entered into the agreement on its own behalf and as agent for Environmental and
    Transportation, and that LeBlanc executed the agreement on behalf of all three
    corporations. The Region pleads that the agreement was made in Ontario, and
    that it was breached because Organics and/or Transportation did not take the
    waste from the Region to the composting facility, but instead took it to a
    landfill.

[3]

The Region pleads that the appellants
    fraudulently conspired with each other to deceive and cause the Region to enter
    into the contract and that LeBlanc, as the representative of all three
    corporations, made false representations in order to induce the Region to enter
    into the contract. The Region claims damages for breach of contract, fraud and
    deceit, negligent misrepresentation and conspiracy.

[4]

The motion judge found that the facts as pleaded
    supported a substantial connection to Ontario, as the claim alleged that
    several torts were committed in the province and that a contract connected with
    the dispute was made in the province. Given these presumptive factors, the
    court was entitled to assume jurisdiction over the matter unless the appellants
    could rebut the presumption. She considered the evidence filed by the
    appellants  affidavits claiming that the Region had no contractual
    relationship with Transportation and Environmental, and that Organics did not
    act as agent for Transportation and Environmental  but she concluded the
    appellants had not rebutted the presumption of jurisdiction.

[5]

The appellants submit the motion judge erred in
    law by relying solely on the respondents pleadings and failing to consider the
    facts and admissions underlying the respondents claims as set out in the
    evidence filed. We do not agree. It was only necessary for the motion judge to
    conclude that there was a good arguable case for assuming jurisdiction on a
    consideration of the pleadings and the evidence filed. The good arguable case
    standard is a low one: the plaintiff must simply demonstrate that the claim has
    some prospect of success and that the cause of action is sufficiently
    connected to Ontario:

Ontario
    v. Rothmans Inc
., 2013 ONCA 353, 115 O.R. (3d) 561,
    at para. 106.

[6]

Here, the motion judge found there was evidence
    to support the Regions position that Organics acted as agent for Environmental
    and Transportation and, on the basis of agency, the contract captured all three
    corporations. She noted that LeBlanc agreed he consulted with an officer and
    director of all three corporations about the price that should be charged to
    the Region, he performed a pre-contractual due diligence on behalf of
    Environmental and Transportation by visiting the transfer station to make sure
    that it was suitable for the trucks to pick up the waste, and he made inquiries
    about the nature and consistency of the waste to determine whether it was
    suitable for Environmental to compost. The motion judge also noted the language
    in LeBlancs letter of proposal to the Region.

[7]

We agree with the motion judge that the main
    thrust of the appellants evidence is that the Regions claim would ultimately
    fail. We have not been persuaded there is any basis to interfere with the motion
    judges decision that the court has jurisdiction over the action.

[8]

The motion judges decision dismissing the
    appellants motion that Ontario is not the appropriate forum is entitled to
    deference. The motion judge noted the Regions claims that the torts were
    committed in Ontario; the fraudulent misrepresentation made to induce the
    Region to enter the agreement was made in Ontario; the agreement was made in
    Ontario; false invoices were sent to Ontario; and damages were sustained in
    Ontario. Transportation knew it would be hauling waste from Ontario, and
    Environmental likely knew it would be processing waste from Ontario. LeBlanc
    came to Ontario to deal with the Region. These are all matters the motion judge
    was entitled to consider. There is no basis upon which to interfere with the
    motion judges conclusion that in all the circumstances it would be reasonable
    to expect the appellants to be called upon to defend the action in Ontario.

[9]

The appeal is dismissed, and costs are fixed in
    favour of the respondent in the amount of $10,000 inclusive, as agreed by
    counsel.

R.G. Juriansz J.A.

P. Lauwers J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ziebenhaus v.
    Bahlieda, 2015 ONCA 471

DATE: 20150624

DOCKET: C59431

MacFarland, Rouleau and Lauwers JJ.A.

BETWEEN

Alexander Ziebenhaus, Christopher Ziebenhaus and
    Victor Ziebenhaus, minors by their Litigation Guardian Sylvia Ziebenhaus,
    Gordon Ziebenhaus, Frederick Ziebenhaus, Gisela Ziebenhaus, Hildegard Wickert
    and the said Sylvia Ziebenhaus personally

Plaintiffs (Appellants)

and

Robert Bahlieda, Delvin Chomiak, Catherine
    Marinelli, Gordon Spears, York Catholic District School Board, and
621198
    Ontario Inc., operating as Mount St. Louis Moonstone Ski Resort Ltd.

Defendants (Respondent)

Allan Rouben, Timothy P. Boland and Darcy W. Romaine,
    for the appellants

John A. Olah and Robert A. Betts, for the respondent
    Mount St. Louis Moonstone Ski Resort Ltd.

Heard: June 17, 2015

On appeal from the order of the Divisional Court (Justices
    Harriet E. Sachs, Herman J. Wilton-Siegel and Mary J. Nolan), dated April 2,
    2014, with reasons reported at 2014 ONSC 138, 119 O.R. (3d) 275, dismissing an
    appeal from the order of Justice Mark L. Edwards of the Superior Court of
    Justice, dated June 13, 2012, with reasons reported at 2012 ONSC 3787.

Rouleau J.A.:

[1]

At the conclusion of oral argument, the court dismissed this appeal,
    with reasons to follow. These are those reasons.

[2]

This is an appeal in a personal injury case that involves a narrow but
    important issue, one that this court has not yet addressed and on which there
    is conflicting case law: whether the Superior Court of Justice has inherent
    jurisdiction to order a party to undergo an assessment by someone who is not a
    health practitioner, as defined in s. 105 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43 (the Act).

A.

Background

[3]

The appellant Alexander Ziebenhaus was injured while skiing on a school
    trip at the Mount St. Louis Moonstone Ski Resort in February 2001. He allegedly
    suffered a brain injury and has claimed damages for loss of future income and
    loss of competitive advantage in the workplace, as well as other heads of
    damages. Counsel for Ziebenhaus arranged for a neuropsychological and
    psychovocational assessment. The resulting report stated that his vocational
    potential and ability to pursue competitive work were guarded. The respondent
    Mount St. Louis Moonstone Ski Resort Ltd. wanted Ziebenhaus to undergo another
    vocational assessment by an assessor it had selected. It accordingly brought a
    motion for an order to that effect. The motion judge allowed the motion.

[4]

The motion judges order was appealed to the Divisional Court. That
    court affirmed the order. It agreed with the motion judges holding that the
    Court has inherent jurisdiction to order assessments and examinations not specifically
    addressed by s. 105.

B.

Analysis

[5]

The parties dispute before us centres on whether the motion judge
    exceeded his jurisdiction when, relying on the courts inherent jurisdiction,
    he allowed the respondents request for an order that Ziebenhaus be examined by
    a vocational assessor selected by the respondent. Section 105 of the Act permits
    a court to order a party to undergo a physical or mental examination by a
    health practitioner:

105. (1)

In
    this section, health practitioner means a person licensed to practise
    medicine or dentistry in Ontario or any other jurisdiction, a member of the
    College of Psychologists of Ontario or a person certified or registered as a
    psychologist by another jurisdiction.

(2)

Where
    the physical or mental condition of a party to a proceeding is in question, the
    court, on motion, may order the party to undergo a physical or mental
    examination by one or more health practitioners.

(3)

Where
    the question of a partys physical or mental condition is first raised by
    another party, an order under this section shall not be made unless the
    allegation is relevant to a material issue in the proceeding and there is good
    reason to believe that there is substance to the allegation.

(4)

The
    court may, on motion, order further physical or mental examinations.

(5)

Where
    an order is made under this section, the party examined shall answer the
    questions of the examining health practitioner relevant to the examination and
    the answers given are admissible in evidence.

[6]

The parties agree that a vocational assessor is not a health
    practitioner as defined in s.105(1) of the Act and that there is no provision
    in the Act or in the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    empowering a court to order that a party submit to an examination by a vocational
    assessor. Although mention was made of Rule 33 of the
Rules
, which

addresses medical
    examinations, it simply sets out how courts are to administer s. 105 of the
    Act.

[7]

The appellants argue that the Divisional Court erred when it confirmed
    the motion judges decision. In their submission, by enacting s. 105, the
    legislature has defined the category of persons who may conduct an examination.
    As a result, the court does not have the inherent jurisdiction to order an
    examination by someone who is not a health practitioner, as this would
    conflict with the legislation.

[8]

I see no basis to interfere with the Divisional Courts decision. That
    court fully canvassed the submission that s. 105 occupies the field and that
    an order for examination by an individual who is not a health practitioner
    would be contrary to the intent of s. 105.  In doing so, it addressed the
    conflicting lower-court jurisprudence on the issue of the courts jurisdiction
    to order such an examination. One line of cases interprets s. 105 of the Act
    and Rule 33 narrowly, allowing courts to order such an examination only if a
    health practitioner needs it as a diagnostic aid. The other line of cases
    suggests a court can exercise its inherent jurisdiction to order such an
    assessment, to ensure justice between the parties is done. See
Vanderidder
    v. Aviva Canada Inc.
, 2010 ONSC 6222, [2010] O.J. No. 5011, at para. 23.

[9]

The Divisional Court concluded that s. 105 does not occupy the field.
    It noted that the health sciences and patient care have evolved to include a
    wide range of assessments by experts who are not health practitioners. Such
    assessments cannot all be characterized as diagnostic aids to the opinion of a
    health practitioner. Precluding their use in the litigation context would be
    contrary to good public policy. In the light of these circumstances, the court said,
    at para. 45:

The only conclusion that can be drawn from these circumstances
    is that section 105 does not completely "occupy the field" in the
    sense that it makes no provision for physical and mental examinations that are
    routinely used in the care and treatment of injured persons, and in litigation,
    that are conducted by persons who do not qualify as "health
    practitioners" under section 105. Accordingly, there is a gap in the
    statutory provisions regarding the entitlement of a party defending an action
    to require a plaintiff to submit to such examinations.

[10]

On
    the issue of whether an order for an assessment by an individual who is not a
    health practitioner would be contrary to the intent of s. 105, the Divisional
    Court determined that it would not.

[11]

I
    see no error in the Divisional Courts analysis and conclusion.

[12]

As
    set out by the Supreme Court of Canada in
R. v. Rose
, [1998] 3 S.C.R.
    262, at para. 133:

[T]he inherent jurisdiction of superior courts is a significant
    and effective basis for preventing abuse of the courts process and ensuring
    fairness in the trial process. This enduring and important jurisdiction of the
    court, if it is to be removed can only be accomplished by clear and precise
    statutory language.

[13]

The
    language of s. 105 and Rule 33 does not constitute such clear and precise
    language. The language of these provisions is permissive, and they do not state
    that a court cannot order an examination by someone who is not a health
    practitioner. Moreover, the conclusion that a superior court judge has the
    inherent jurisdiction to order such an examination does not conflict with the
    relief available under s. 105, nor should it be seen as extending the reach of
    that section. Inherent jurisdiction should be exercised only sparingly and in
    clear cases, when the moving party demonstrates that it is necessary to ensure
    justice and fairness.

[14]

The
    appellants also argue that even if the court has the inherent jurisdiction to
    make such an order, it should not have exercised its jurisdiction in this case.

[15]

I
    would not give effect to this submission. While recourse to inherent
    jurisdiction should be had only sparingly, the motion judge in this case
    concluded that invoking it was necessary in the interest of fairness, as it
    was required for the defendants to meet the plaintiffs case. The Divisional
    Court quite properly concluded there was no basis to interfere with the motion
    judges exercise of discretion in this case.

C.

Disposition

[16]

For
    the above reasons, I would dismiss the appeal. By agreement of the parties, the
    respondent would be awarded costs on a partial indemnity basis, fixed in the
    amount of $25,000, inclusive of disbursements and HST.

Paul Rouleau J.A.

I agree J. MacFarland
    J.A.

I agree P. Lauwers
    J.A.

Released: June 24, 2015


COURT OF APPEAL FOR ONTARIO

CITATION: 1289012 Ontario Ltd. v. 2251420 Ontario Inc. 2015
    ONCA 524

DATE: 20150713

DOCKET: C59186

Strathy C.J.O., Epstein and Huscroft JJ.A.

BETWEEN

1289012 Ontario Ltd. and Ossom International
    Developments Inc.

Plaintiffs (Respondents)

and

2251420 Ontario Inc.

Defendant (Appellant)

AND BETWEEN

2251420 Ontario Inc., Aliasghar Hariri and Tayebe
    Vahidtary

Plaintiffs by Counterclaim
    (Appellants)

and

1289012 Ontario Ltd., Ossom International Developments
    Inc.,

Oleg Bourlatski and Aleksandr
    Bourlatski

Defendants to the Counterclaim (
Respondents
)

Pauline Bosman, for the appellants

Leo Klug, for the respondents

Heard: July 7, 2015

On appeal from the judgment of Justice Anne Mullins of
    the Superior Court of Justice, dated July 8, 2014.

ENDORSEMENT

[1]

The appellant 2251420 Ontario Inc. (225) asserts the trial judge erred
    in finding that the Associates Lease, dated Sept. 21, 2010, between it and the respondent
    1289012 Ontario Ltd. (128) was a valid and  enforceable lease and in awarding
    damages for rent due under the lease. It claims that the Associates Lease was
    void
ab initio
because 128 had previously leased the service station to
    Imperial Oil and was collecting rent from Imperial. In a counterclaim, it
    sought the return of the rent it paid to 128 and damages for wrongful taking of
    possession.

[2]

After reviewing the 10-year history of the premises, involving a
    succession of operators of the service station, the trial judge found that
    before entering into the Associates Lease, 128 regained, if it had ever truly
    parted with, a bona fide right to grant possession of the premises and receive
    rent from 225.

[3]

Throughout the material time, 128 was the head tenant of the premises,
    which were owned by a third party. In 2001, concurrent with its Dealer Sales
    Agreement with Imperial, 128 leased [the trial judges quotation marks] the
    premises to Imperial (the Imperial Lease) in return for a payment of 1.5 cents
    per litre for all fuel sold on the premises. Imperial then sub-leased or
    cross-leased the premises to 128 for $1.00 per year (the Sublease).

[4]

There was evidence that the purpose of the lease and leaseback was to
    secure Imperials right to supply gasoline to the service station and to
    control the dealers use of the premises, that the 1.5 cent per litre rent
    paid by Imperial to 128 was simply a volume rebate, and that such arrangements
    were common in the industry.

[5]

As the service centre business was transferred to successive companies
    over the years, the Sublease, Dealer Sales Agreement and related agreements
    were assigned to the new dealer. 128 remained the head lessor to Imperial under
    the Imperial Lease.

[6]

These contractual arrangements changed somewhat when the business was
    transferred to an unrelated company in 2009. At that time, the respondents entered
    into a separate sublease, referred to as an Associates Lease, with the new
    operator as well as a form of franchise agreement, referred to as an Associates
    Agreement. The new operator assumed the other arrangements with Imperial,
    including the Sublease. The same contractual framework was used when 225 purchased
    the business from that operator in 2010. The upshot was that there were two
    leases of the premises: the Sublease and the Associates Lease.

[7]

The essence of 225s position is that the form and plain language of the
    Imperial Lease, should determine its legal effect and that 128 had no right to
    lease the premises because it had previously leased them to Imperial. 225 says
    the trial judge erred in failing to interpret the Imperial Lease and the
    Sublease according to their terms and without reference to extrinsic evidence.

[8]

In the circumstances of this case, we disagree.

[9]

The court is, of course, required to have regard to the nature of the
    documents and the words used by the parties to determine their contractual
    intent. But as the Supreme Court of Canada noted in
Sattva Capital Corp v.
    Creston Moly Corp.
,

2014 SCC 53, [2014] 2 S.C.R. 633, at para.
    48, the meaning of words is determined from a number of contextual factors,
    including the nature of the relationship and the purpose of the agreement.

[10]

The
    trial judge was therefore required to have regard to the factual matrix in the
    interpretation of the agreements:
Sattva
,

at para. 46. In
Sattva
the Supreme Court also noted, at para. 47, the importance of the history of the
    transaction, the background, context and the market in which the parties were
    operating.

[11]

Another
    interpretative principle is also pertinent. As this court observed in
Salah
    v. Timothys Coffees of the World Inc
., 2010 ONCA 673, 268 O.A.C. 279, at
    para. 16, Where a transaction involves the execution of several documents that
    form parts of a larger composite whole  like a complex commercial transaction
     and each agreement is entered into on the faith of the others being executed,
    then assistance in the interpretation of one agreement may be drawn from the
    related agreements.

[12]

In
    this case, the factual matrix included not only the Imperial Lease, the
    Sublease, and the Dealer Sales Agreement entered into between 128 and Imperial,
    but also the suite of contracts entered into by 225 when it acquired the gas
    station business. This set of interrelated agreements included the Associates
    Lease, the Associates Agreement and other agreements between the 225 and the previous
    operator of the gas station business, whereby 225 purchased the assets of the
    business and assumed various agreements with Imperial (and its successor
    Parkland), including the Sublease.

[13]

The
    trial judge was entitled to find, as she did, that the expectations of 128 and
    225 were reflected in the Associates Lease. She was also entitled to find, as
    she did, that the effect of the various agreements was that 128 had the right
    to lease the premises. Her conclusions were grounded in the evidence, including
    the evidence of a representative of Parkland, Imperials successor, which had
    no issue with 225s tenancy and was not claiming a right to possession.

[14]

In
    sum, the trial judge was entitled to give effect to substance over form.
    Although the Sublease resembles a lease in form, in substance and in context,
    its purpose was to give Imperial control over the use of the premises.  The
    Sublease did not prevent 128 from leasing the premises to others, so long as the
    new tenant remained bound to operate the service centre and to buy fuel from
    Imperial or its designate.

[15]

There
    is, moreover, no evidence that 225s possession of the property was disturbed. In
    fact it occupied the property and paid rent to 128 for 17 months before running
    into business difficulties and defaulting. It did not raise the alleged
    invalidity of the Associates Lease until after it realized the business was
    unprofitable and shortly before this litigation was commenced.

[16]

The
    appellants have identified no extricable error of law in the trial judges
    interpretation of the bundle of inter-related agreements made by the parties.
    Nor have they identified any palpable or overriding error in her assessment of
    the evidence or the interpretation of the agreements.

[17]

For
    these reasons, the appeal is dismissed, with costs to the respondent fixed at
    $18,000, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

Gloria
    Epstein J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Abuzour v. Heydary, 2015 ONCA 565

DATE: 20150730

DOCKET: C59984

Laskin, Pardu and Brown JJ.A.

BETWEEN

Hasan Abuzour and Samira Abuzour

Respondents on Appeal

(Applicants)

and

Javad Heydary and Heydary Hamilton Professional
    Corporation

Respondents

Brian N. Radnoff and Louise F. Moher, for the appellants

Arnold Zweig, for the respondents

Heard: June 25, 2015

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated January 29, 2015.

Pardu J.A.:

[1]

This appeal deals with the continuing devastation caused by a lawyer,
    Javad Heydary, who appears to have disappeared with his clients money. Heydary
    Hamilton Professional Corporation, Heydarys firm, owes the Abuzours, the
    respondents, more than $3.6 million. Heydary and Heydary Hamiltons LawPro liability
    insurance policy limits are only $1 million. The appellants are lawyers
    formerly employed by Heydary Hamilton. Although the appellants had no control
    over the trust account and played no part in the disappearance of the funds,
    the respondents have threatened to sue the appellants. The appellants want to
    resort to the liability insurance policy for their defence costs. If the policy
    limits are paid out in partial satisfaction of the respondents claims, the
    appellants will be left without coverage to defend themselves. They appeal from
    the motion judges refusal to set aside or vary an order enforcing the
    garnishment issued by the respondents against LawPro, which exhausts the policys
    limits.

[2]

The procedural history here is unusual. A dispute arose between Heydary
    and the Abuzours about whether the Abuzours were entitled to money deposited to
    Heydarys trust account in settlement of an oppression action with a third
    party. The respondents did not obtain a judgment against Heydary Hamilton or
    Javad Heydary for negligence, fraud, error or omission in the provision of
    professional services, matters which are covered by the insurance policy.
    Rather, the Abuzours brought motions in the oppression proceeding which
    resulted in two orders dated November 14 and December 17, 2013, ordering
    payment of $3.6 million from the Heydary Hamilton trust account to the
    Abuzours. Heydary and Heydary Hamilton did not comply with the orders. In
    reasons released on December 4, 2013, Heydary and Heydary Hamilton were found
    in contempt of court for their failure to comply with orders for release of $2.1
    million to the Abuzours.

[3]

On March 6, 2014, counsel for the Abuzours sent a demand letter to the
    appellants, writing that counsel had instructions to commence legal
    proceedings against each of you unless a resolution is reached on behalf of our
    clients in the next short while.

[4]

Counsel for the Abuzours concluded the demand letter by warning that he
    was instructed to proceed with legal action without further notice if the
    parties could not negotiate a resolution.

[5]

The Abuzours served a notice of garnishment upon LawPro and brought a
    motion returnable October 9, 2014 to enforce the garnishment. LawPro
    unsuccessfully opposed the motion. The appellants were not served with notice
    of the motion. The motion judge granted the garnishment order on the following
    grounds:

(a)

LAWPRO's obligations to indemnify Heydary and Heydary Hamilton under the
    Heydary policy constitute a debt subject to garnishment by the Abuzours under rule
    60.08 (at para. 29);

(b)

LAWPRO has a duty to investigate and to defend other claims against other
    lawyers associated with Heydary Hamilton, but, despite the Abuzours threats,
    no such claims yet exist (at para. 32);

(c)

The Heydary policy does not require LAWPRO to consider the cost of claims
    which have not been made and to weigh those potential obligations against its obligation
    to pay claims finally determined (at para. 35); and

(d)

The first past the post principle applies to the Abuzours judgment.
    The Abuzours should not have to share the proceeds of the Heydary policy with
    parties who have yet to call on the policy and may not call on the policy (at para.
    36).

[6]

The appellants then brought a motion to set aside or vary the
    garnishment order of October 9, 2014.

[7]

As outlined by the motion judge, they advanced four arguments in support
    of their position that the garnishment order should not issue:

(1)

[The orders of November 14 and December 17, 2014] are not covered by the
    Policy because they do not involve damages arising out of a claim where the
    liability of the insured is the result of an error, omission or negligent or
    fraudulent act in the performance of or the failure to perform professional
    services for others;

(2)

[T]he March 6, 2014 demand letter was a claim under the Policy. The
    notice of garnishment was delivered well after the applicants claim. The
    moving parties therefore say that, under the first past the post principle,
    their rights as insureds under the Policy come before any rights of the
    applicants arising by way of notice of garnishment;

(3)

[G]arnishment is an equitable remedy. In the circumstances of this case the
    equities favour the moving parties; and

(4)

[I]n the alternative, if the Order is not set aside, it should be varied
    to provide that, in exchange for payment of the proceeds of the Policy to the
    applicants, the applicants must provide a release of all claims against the
    moving parties.

[8]

The motion judge rejected each of these arguments.

[9]

For the purposes of this appeal, it is not necessary to decide whether
    the motion judge was correct to reject the first two arguments.

[10]

All
    parties agree that a decision on whether to enforce a garnishment is
    discretionary: see
20 Toronto Street Holdings Ltd. v. Coffee, Tea or Me
    Bakeries Inc.
(2001), 53 O.R. (3d) 360 (S.C.), at para. 5;
Noble China
    Inc. v. Lei
, [1999] O.J. No. 5030 (S.C.), at para. 24;
Wayfarer
    Holidays Ltd. v. Hoteles Barcelo
(1993), 12 O.R. (3d) 208 (Gen. Div.), at
    p. 212.

[11]

The
    motion judge rejected the argument that the equities favoured the appellants.
    He held that payment out of the Abuzours claim should not be delayed because
    of the speculative possibility that an action might be commenced against the
    appellants. He recognized that the Abuzours claims against the appellants might
    be weak, noting that [i]f the moving parties are right, then the Abuzours
    would be foolish indeed to spend the limited recovery they may [gain] from
    LawPros Policy in fruitless litigation. But [the merits of that litigation]
    must be for another day. The motion judge also concluded that there was no
    legal basis to attach a condition to the order enforcing garnishment requiring
    the Abuzours to execute a release in favour of the appellants.

[12]

As
    observed by the motion judge, application of the first past the post
    principle will allow a successful plaintiff to enforce a judgment against the
    defendants insurer where the policy covers the acts underlying the judgment,
    even where other potential claims may be adversely affected by a reduction of
    insurance proceeds available to satisfy the claims.

[13]

This
    situation is unusual in that the initial orders for payment out of the Heydary
    Hamilton trust accounts were not based on negligence, omissions, errors or
    fraud covered by the policy. It is the failure to comply with these orders
    which arguably gives rise to an insured loss.

[14]

Most
    significantly for the purposes of this appeal, the respondents at oral argument
    were unable to articulate any basis upon which the respondents might advance a
    claim against the appellants relating to the money which has vanished. I am
    left with the impression that the respondents refusal to execute a release in
    favour of the appellants is a tactical one, designed to extract funds from
    innocent parties who do not have the means to defend themselves. The losses
    suffered by the respondents must be devastating, but there is no basis shown to
    visit Heydarys misconduct on the appellants.

[15]

As
    enforcement of a garnishment is a discretionary decision, in my view, contrary
    to the decision of the motion judge, the appellants should provide a release as
    a condition of the payment to them of the garnished insurance policy limits. In
    the unusual circumstances of this case, where the respondents cannot articulate
    any substance to a claim against the appellants, a release condition narrowly
    tailored to the apparent theft of the trust funds is appropriate.

[16]

Accordingly,
    the appeal is allowed to the extent of varying the order of the motion judge by
    adding the following term to the order:

By the payment of any insurance proceeds relating to LawPro insurance
    policies held by Javad Heydary or Heydary Hamilton Professional Corporation to Hasan
    Abuzour or Samira Abuzour, Hasan Abuzour and Samira Abuzour hereby release any
    claims that they may have against Jeff Landmann, Darren Smith and Yan Wang
    relating to the application in Court File No. CV-12-9960-00CL, including any
    claims relating to or in any way connected with monies held at any time in
    trust for Hasan Abuzour or Samira Abuzour.

[17]

Costs
    are awarded in favour of the successful appellants in the agreed sum of
    $10,000, inclusive of disbursements and taxes.

[18]

In
    this event, the respondents do not pursue their cross-appeal, and this appeal
    is dismissed with costs to the appellants fixed at $1,500 all inclusive.

Released: (JL) July 30, 2015

G. Pardu J.A.

I agree John Laskin J.A.

I agree David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bomberry v. Coseco Insurance Company,
    2015 ONCA 501

DATE: 20150703

DOCKET: C59727

Doherty, Lauwers and Huscroft JJ.A.

BETWEEN

Penny Bomberry

Plaintiff (Appellant)

and

Coseco
    Insurance Company

Defendant (Respondent)

Sean Oostdyk, for the plaintiff (appellant)

No one appearing for the defendant (respondent)

Heard: June 29, 2015

On appeal from the decision of Justice Carpenter-Gunn of
    the Superior Court of Justice, dated November 10, 2014.

APPEAL BOOK ENDORSEMENT

[1]

On consent appeal dismissed as abandoned.

[2]

No costs.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE: Bui c. Tran, 2015 ONCA 511

DATE: 20150707

DOSSIER: M44715 (C59888)

La juge en chef adjointe Hoy,
    les juges Sharpe et Benotto

ENTRE

Bui Duy Thinh, Metrasse Monique,

Bui
    Metrasse Alexander et SCP Metrasse, Bui et Associés

(Demandeurs/Appelants)

et

Tran Quoc Chinh et Bui Thi Linda
    Tran née Bui Thi Linda

(Défendeurs/Répondants)

Bui Dinh Thinh, Metrasse Monique, Bui
    Metrasse Alexander et SCP Metrasse, Bui et Associés, en personne

Chad Yehia, pour les intimés

Date de laudience : le
    23 juin 2015

Décision rendue séance
    tenante.

En appel de lordonnance de la juge Andra
    Pollak de la Cour supérieure de justice, en date du 15 janvier 2015.

INSCRIPTION

[1]

Cette motion est mal fondée et nous la rejetons.
    M. Bui aura la chance de contester la décision de la juge Pollak le 9
    septembre, quand lappel de cette décision sera entendu.

[2]

Les dépens de cette motion sont accordés aux
    intimés. Les dépens sont fixés au montant de 1000 $ et devraient être payés
    avant que lappel soit entendu.

« Alexandra Hoy a.c.j.o »

« Robert
    J. Sharpe j.c.a. »

« M.L.
    Benotto j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: Bustamante v. The Guarantee Company of North
    America,

2015 ONCA 530

DATE: 20150713

DOCKET: C59839

Hoy A.C.J.O., Epstein and Huscroft JJ.A.

BETWEEN

Angela Bustamante

Plaintiff (Appellant)

and

The Guarantee Company of North America

Defendant (Respondent)

Andrew L. Rudder, for the appellant

Rose Bilash and Caroline Theriault, for the respondent

Heard: July 8, 2015

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, dated December 4, 2014.

ENDORSEMENT

[1]

The motion judge granted summary judgment, dismissing the appellants
    claim for statutory accident benefits as time-barred. She appeals.

[2]

The appellant was involved in a car accident on June 3, 2004.  At the
    time of the accident, she worked as a hairdresser.  The appellants insurance
    policy provided for statutory accident benefits as set out in the
Statutory
    Accident Benefits Schedule
, O. Reg. 403/96 (the SABS).

[3]

On August 18, 2004, the appellant, then represented by counsel, filed an
    Application for Accident Benefits (OCF-1) and a Disability Certificate (OCF-3)
    with the respondent insurer.  The respondent sent the appellant an Election of
    Benefits form (OCF-10).  The appellant returned the OCF-10 on August 20, 2004,
    indicating she elected income replacement benefits as opposed to non-earner
    benefits.

[4]

On September 1, 2004, the respondent, based on the appellants
    information that she was employed at the time of the accident, was disabled,
    and had elected the income replacement benefit  advised the appellant via an
    Explanation of Benefits form (OCF-9) that it would pay weekly income
    replacement benefits of $344.87.  The respondent also told the appellant that
    she did not qualify for the non-earner benefit, which would have paid $185 per
    week, as she qualified for the income replacement benefit.  In addition, the
    OCF-9 contained information concerning the criteria, including timelines, for
    disputing the refusal of non-earner benefits.

[5]

A post-104 week disability assessment found that the appellant no longer
    met the disability test for entitlement.  As a result, the respondent stopped
    paying the benefits on July 26, 2006.

[6]

The appellant returned to work in September of 2006.

[7]

Over three years later, on September 25, 2009, counsel for the appellant
    notified the respondent that the appellant intended to pursue a claim for
    non-earner benefits.  Her lawyers letter took the position that there had been
    no denial of non-earner benefits and the limitation period had not started to
    run.

[8]

The respondent, in a series of letters over the following several
    months, asked the appellant for an updated disability certificate and
    documentation pursuant to s. 33 of the SABS.  The appellant failed to respond.

[9]

The respondent advised the appellant by letter dated January 19, 2010
    that she was not entitled to non-earner benefits. The respondent also provided
    the appellant with a notice with respect to her right to dispute the refusal.

[10]

On
    June 17, 2011, the appellant sought mediation with the Financial Services
    Commission of Ontario.  The parties were unable to resolve their dispute and
    the appellant initiated a claim against the respondent on November 28, 2012,
    claiming damages for breach of contract in refusing accident benefits and for
    mental distress.

[11]

The
    respondent moved under Rule 20 for summary judgment to dismiss the appellants
    action. In reasons dated December 4, 2014, the motion judge granted summary
    judgment and dismissed the action on the basis that the limitation period for
    the appellants claim to non-earner benefits began either on September 1, 2004
    when the non-earner benefits were refused or on July 26, 2006 when the income
    replacement benefits were discontinued.  In either case, the appellant failed
    to bring her action within two years.

[12]

We
    agree that the appellants claim for non-earner benefits is time-barred.

[13]

The
    OCF-9 explained the appellants right to dispute the insurers assessment of her
    claim and to have the claim addressed through mediation followed by
    arbitration, litigation or neutral evaluation. At the bottom of the page, under
    the heading, WARNING: TWO YEAR TIME LIMIT, it explained she had two years
    from the insurers refusal to pay a benefit, or from reduction of a benefit, to
    arbitrate or commence a lawsuit.

[14]

As
    previously mentioned, the respondent terminated the appellants income
    replacement benefits on July 26, 2006.  The appellant did not re-assert a claim
    for non-earner benefits until June 17, 2011 when she sought mediation, a time
    well in excess of two years following the termination of benefits. Even her
    letter dated September 25, 2009, in which she informed the respondent that she
    wished to pursue non-earner benefits, was delivered two years after the
    respondent terminated her benefits.

[15]

Section
    281.1(1) of the
Insurance Act
, R.S.O. 1990, c. I.8, and s. 51(1) of
    the SABS establish a two-year limitation period for the commencement of
    litigation or arbitration after the insurers refusal to pay a benefit claimed.

[16]

The
    appellants submission before the motion judge and in this court is that the
    respondent cannot rely on its September 1, 2004 denial of the non-earner
    benefit as triggering the limitation period as she was not eligible for the
    non-earner benefit at that time. Effectively, the appellants position is that
    the limitation period for the non-earner benefit did not run during the period
    when she was entitled to the income replacement benefit.

[17]

This
    argument cannot succeed in the light of this courts decisions in
Sietzema
    v. Economical Mutual Insurance Company
, 2014 ONCA 111, 118 O.R. (3d) 713,
    and
Sagan v. Dominion of Canada General Insurance Co.
, 2014 ONCA 720,
    123 O.R. (3d) 314.

[18]

The
    facts in
Sietzema
are on all fours with those in this case.  There,
    the claimant applied for and received income replacement benefits.  She was
    denied her claim for non-earner benefits. The claimant received her income
    replacement benefits and then more than two years after they were denied, she
    sued her insurer for non-earner benefits.

[19]

This
    court upheld the summary judgment dismissing the claimants claim on the basis
    that it was brought outside the limitation period, reasoning that the refusal
    to pay non-earner benefits in the OCF-9 triggered the limitation period in s.
    51(1) of the SABS, which required mediation to be commenced within two years
    after the insurers refusal to pay the amount claimed.

[20]

In
    response to the appellants argument that the start of the limitation period
    for the non-earner benefit does not start to run during the period when she was
    entitled to the income replacement benefit, we repeat and reinforce what this
    court said in
Sietzema
, at para. 16: If we accepted the appellants
    argument, the limitation period for making a claim for Non-Earner Benefits
    never began to run. This would defeat one of the primary purposes of the SABS
    regime, namely, to ensure the timely submission and resolution of claims for
    accident benefits.

[21]

Here,
    as in the cases noted above, by providing the OCF-9 to the appellant, the
    respondent gave clear notice of the appellants rights to mediation, followed
    by arbitration, litigation or neutral evaluation if she wished to dispute the
    refusal or reduction of benefits. It also gave her clear notice of the two-year
    limitation period. The respondents refusal to pay non-earner benefits in the
    OCF-9 triggered the limitation period in s. 51(1) of the SABS.

[22]

For
    these reasons the appeal is dismissed.  In accordance with counsels agreement,
    the respondent is entitled to its costs of the appeal fixed at $6,000,
    including disbursements and HST.

Alexandra Hoy A.C.J.O.

Gloria Epstein J.A.

Grant Huscroft J.A.