WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4       (1)
Subject to
    subsection (2), the presiding judge or justice may make an order directing that
    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)       Any of the following offences;

(i)   an offence under section 151, 152, 153, 153.1, 155, 159,
    160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

(b)       Two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect
    of the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect
    of an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6       (1)
Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

CITATION:
R. v. Smith, 2011 ONCA 564

DATE: 20110826

DOCKET: C50528

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Eric Smith

Appellant

James Foord, for the appellant

Dena Bonnet, for the respondent

Heard: April 18, 2011

On appeal from the convictions entered by
          Justice Kenneth E. Pedlar of the Superior Court of Justice on January 26,
          2009 and the sentence imposed on April 28, 2009.

Epstein J.A.:

I.         OVERVIEW

[1]

On January 26, 2009, after a five-day judge-alone trial, the appellant
    was convicted of ten offences  five counts of assault, two counts of assault
    causing bodily harm, two counts of sexual assault and one count of uttering a
    threat.   On April 28, 2009, he was sentenced to three years imprisonment on
    each count, with each sentence running concurrently.  He appeals his convictions
    and, if leave is granted, the sentences imposed.

[2]

Mr. Smith was charged with 13 offences arising out of his relationships
    with three long-term partners, B.L.
[1]
,
    D.Q. and M.O.  These relationships spanned the period from 1977 to 2006.  In
    2006, B.L. went to the police and reported nine years of continuous verbal,
    physical, financial and sexual abuse by the appellant.  As a result of B.L.s
    report, the police contacted the appellants two previous partners, D.Q. and
    M.O., each of whom described similar abuse during their relationships with Mr.
    Smith.

[3]

The grounds upon which the appellant challenges the convictions are
    primarily evidentiary, although he also submits that the trial judge erred in
    law by finding him guilty of threatening to kill D.Q. and in reversing the
    burden of proof in relation to two counts arising out of his relationship with
    M.O.

[4]

I would allow the appeal in relation to counts one, two, four, five,
    six, seven and eight, the counts that pertain to the appellants relationship
    with B.L., on the basis that the trial judge erred by relying on information
    not in evidence to support his acceptance of B.L.s version of the events where
    the credibility of B.L.s trial testimony was critical to the Crowns case.

[5]

For the reasons that follow, I would dismiss the appeal in relation to
    the remainder of the counts, namely, counts nine, ten and 12.  I would,
    however, grant leave to appeal sentence and vary the sentences imposed on the
    remaining counts.

II.        FACTUAL BACKGROUND

The Verdicts

(i)        The
    events reported by B.L.  counts one through eight

[6]

B.L. and the appellant were together from 1995 to 2006.  B.L. testified
    that the violence, consisting of verbal, physical and sexual abuse, started
    about two years into their relationship.

[7]

Count one, a charge of common assault, related to an incident that took
    place on March 26, 2006, the day the relationship between B.L. and the
    appellant ended.  In her trial testimony, B.L. described a lengthy dispute
    between her and the appellant that day, during which the appellant hit her on
    the knuckles with a telephone when she tried to phone the police and stood on her
    toes to prevent her from leaving the house where they lived.

[8]

The appellant testified that he and B.L. did argue that day but his
    description of events differed from that of B.L.  Significantly, the appellant
    denied that he assaulted B.L.

[9]

Count two, another common assault charge, related to allegations that
    the appellant, angry that the washing machine was not working, elbowed B.L. in
    the ribs.  B.L. testified that, as a result, she swung at him but missed, hit a
    wardrobe and bruised her hand.  The appellant then pushed her down on the bed,
    jumped on her, and repeatedly hit her on the back of the head as she lay face
    down.  He also pulled her hair.

[10]

The appellant described the difficulty with the washing machine and
    B.Ls having hit the wardrobe and bruised her hand, but denied the assault.

[11]

Count three, assault with a weapon, related to allegations that the
    appellant hit B.L. with a chair.  B.L. testified that she had bruises and marks
    on her back for a couple of weeks following the incident.

[12]

The appellant denied the assault.

[13]

Count four, assault causing bodily harm, related to allegations that,
    during an argument in which B.L. said she was going to the police, the
    appellant grabbed the purse she was holding and jerked her onto the ground.  As
    a result, B.L. sustained bruising to the inside of her arm from her elbow up to
    her underarm.

[14]

Again, the appellant denied the assault.  He testified that B.L.
    received the bruises from an incident with a horse on their hobby farm.

[15]

Count five, common assault, related to allegations that, during an
    argument, the appellant chased B.L. down the hall into the bedroom and, as she
    lay on the bed face down, he punched her repeatedly with full force on the back
    of the head.  B.L. testified that she had severe headaches and wet the bed for
    about a week after the incident.

[16]

The appellant remembered the bed wetting but denied the assault.

[17]

Count six, assault causing bodily harm, related to allegations that the
    appellant hit B.L. in the back and knocked her to the ground as a result of
    which she injured her knee.

[18]

The appellant denied the assault and testified that B.L. hurt her knee
    when she knelt on a toy at her sons house.

[19]

Count seven, sexual assault, related to allegations that, on several
    occasions, the appellant forced B.L. to have oral sex.

[20]

The appellant testified that B.L. never performed oral sex due to a condition
    with her jaw, a gag and a bite reflex.

[21]

Count eight was a catch-all charge of common assault that related to
    multiple incidents between 1997 and 2006. B.L. described these incidents as
    including slapping, pushing and hair pulling.

[22]

The appellant denied the assaults, although he did agree that during
    their relationship they often argued and swore at each other.

(ii)       The
    event reported by D.Q.  count nine

[23]

The appellant and D.Q. were in a relationship between 1987 and 1994.  Prior
    to the conduct in issue in the charges before the trial judge, the couple had a
    history of domestic violence.  In 1993, the appellant pleaded guilty to an
    assault that took place in 1991.  The appellant testified that the conviction
    arose from an incident in which he tried to restrain D.Q. in an attempt to
    prevent her from running away, as she had threatened to commit suicide by
    crashing into a truck on Highway 401.  He admitted that he was wrong to do so,
    but explained that he was trying to protect her from herself. There were no
    records of the 1993 assault proceedings to confirm or deny the basis upon which
    the appellant pleaded guilty.

[24]

Count nine, uttering a death threat, related to an allegation that, in
    1994, the appellant said to D.Q., I could kill you at any moment, and no one
    would be the wiser.  D.Q. testified that, at the time, she thought he was
    joking.  However, later she saw a hole dug in the back of their property.  The appellant
    described it to her as a test hole, related to construction taking place on the
    property. D.Q. doubted this explanation as, by that time, the construction had
    progressed to the point where there was no further need for a test hole, and
    she believed that the hole was big enough for a body.  She became fearful for
    her life and left the appellant while he was away on a trip.  D.Q. did not
    report the threat to the police until they contacted her in 2006.

[25]

The appellant denied telling D.Q. that he could kill [her] at any
    moment.

(iii)     The
    events reported by M.O.  counts ten through 13

[26]

The appellant and M.O. met in 1972 and were married in 1977.  They were
    together until 1986 and divorced in 1987.  M.O. testified that the appellant
    was physically, emotionally and sexually abusive toward her.

[27]

Count ten, common assault, related to allegations that the appellant
    repeatedly assaulted M.O. between 1978 and 1984.  She alleged that the
    appellant pinched her legs, elbowed her in the stomach, threw forks at her,
    whipped the back of her legs with a wire, grabbed her hair, hit her on the back
    of the head and kicked her.

[28]

The appellant denied all of the assaults.

[29]

Count 11, indecent assault, related to allegations that twice between
    1977 and 1983, M.O. dreamed of being raped and when she woke up, she discovered
    the appellant having sexual intercourse with her.

[30]

The appellant denied that this happened.

[31]

Count 12, sexual assault, related to allegations that after M.O. had
    ended her relationship with the appellant and begun a new one (with her current
    partner of 22 years at the time of the trial), the appellant called her and
    asked her to come over to help him find a receipt.  M.O. testified that after
    she found the receipt, she wanted to leave but the appellant said that first
    she had to have sex with him.  She said no, but after about an hour she gave
    in, as she believed she had no choice.  When she arrived home, M.O. told her
    partner what had happened.

[32]

The appellant testified that he and M.O. had sex on several occasions
    after they broke up.  According to the appellants testimony, it was always
    consensual.

[33]

Count 13, common assault, related to allegations that two weeks prior to
    their marriage, the appellant and M.O. had an argument.  The appellant grabbed
    M.O. by both arms sufficiently hard that she had bruises on the inside of both
    arms above the elbows.  M.O. testified that she wore a long-sleeved wedding
    dress to conceal the bruises.

[34]

The appellant testified that he grabbed her arms to keep her from
    hitting him, and that there were no bruises.

III.      REASONS OF THE TRIAL
    JUDGE

Convictions

(i)        The
    counts involving B.L.  counts one through eight

[35]

For the most part, the evidence relating to each count consisted of the
    testimony of B.L. and that of the appellant.  In his lengthy and detailed
    reasons, the trial judge, in convicting the appellant on counts one, two, four,
    five, six, seven and eight, reviewed the testimony of the appellant and B.L. and
    explained why he preferred that of B.L. He also considered and rejected the
    defence position that B.L. had motives to fabricate, evidenced by her
animus
toward the appellant given the rocky nature of their relationship, the testimony
    of L.C., a defence witness who testified that B.L. had told her she intended to
    ruin the appellant and B.L.s 2.5 million dollar civil lawsuit against the
    appellant.  The trial judge, on his own, raised the concern that B.L. may have been
    alleging the assaults as a way of obtaining exclusive possession of the
    couples hobby farm.

[36]

In explaining his preference for B.L.s evidence over that of the
    appellant, the trial judge specifically noted, on a number of occasions, that
    B.L. had been consistent in the major details of her evidence throughout her
    statement to the police, the preliminary inquiry and trial.  In relation to
    counts four and six, the trial judge also made reference to supporting evidence
    such as medical records and the testimony of several witnesses who saw a large
    bruise on B.L.s arm.

[37]

In rejecting the appellants evidence and finding it did not raise a
    reasonable doubt, the trial judge described how he found Mr. Smiths testimony
    to be improbable and in one instance, count six, to have been contradicted by
    that of B.L.s son.

[38]

The trial judge acquitted the appellant of count three on the basis that,
    while he accepted B.L.s evidence that the appellant threw a chair at her and that
    the chair hit her, the trial judge was not satisfied that the appellant intended
    to hit B.L. with the chair.

(ii)       The
    count involving D.Q.  count nine

[39]

With respect to count nine, the trial judge found that the appellants
    credibility on this charge was severely damaged by his assertion that the 1993
    assault charge was prompted by an honest belief that he was holding on to D.Q.
    to prevent her from committing suicide.  The trial judge found it totally
    unbelievable that those facts were accepted as supporting a guilty plea to
    assault.

[40]

With respect to the threatening charge, the trial judge held that the
    appellant said the words alleged by D.Q., and that although they were not taken
    seriously at the time, when considered together with the unexplained hole in the
    backyard, the words justifiably intimidated D.Q.  Further, it was a reasonable
    inference that, even without the added concern created by the hole, the words
    were intended to intimidate; a reasonable person would consider the words a
    threat.

(iii)     The
    counts involving M.O.  counts ten through 13

[41]

The trial judge convicted the appellant on counts ten and 12 and
    acquitted the appellant on counts 11 and 13.

[42]

In relation to counts ten and 12, the trial judge accepted M.O.s
    evidence describing it as detailed, specific and consistent.  He reasoned that
    her evidence with respect to count ten would have to be a total fabrication
    if the appellants evidence were to be believed, yet she had no motive to
    fabricate.  There was no evidence that she bore any
animus
toward the
    appellant.  She had moved on with her life. The trial judge stated that M.O.
    demonstrated candour in her testimony and that she did not attempt to gild the
    lily.

[43]

These observations were in contrast to the trial judges assessment of
    the appellants evidence in response to M.O.s description of the events
    pertaining to counts ten and twelve.  The trial judge described the appellants
    denial with respect to count ten as a blanket denial providing no evidence concerning
    the incidents surrounding any of the alleged assaults.  Furthermore, the trial
    judge found that the appellants assertions that M.O. arranged to meet him for
    consensual sex and then falsely reported rape to her partner, were incredible.

[44]

The trial judge had some difficulty with M.O.s evidence relating to
    count 11 on the basis that M.O. had dreamed of being raped by the appellant
    before waking up to find him, apparently still asleep, having intercourse with
    her.  In relation to count 13, the trial judge carefully examined the evidence
    and stated that he was much more inclined to accept M.O.s evidence and that
    it likely happened the way she described it.  However, he found himself in
    some doubt and therefore also acquitted the appellant on count 13.

The Sentences

[45]

The trial judge began his reasons by
    reviewing the purposes of sentencing set out in s. 718 of the
Criminal Code
,
    and specifically referring to the identification of spousal abuse as an
    aggravating factor in s. 718.2. The trial judge also emphasized the principle
    of totality, referring to it as a huge issue and further noting that the
    whole concept of totality is what has been raised here, and I think that is
    highly relevant in this case.

[46]

In terms of mitigation, the trial judge noted that other than the one
    previous assault conviction, for which he received a fine, the appellant
    appeared to be a law-abiding member of the community.  For three years, he had
    complied with his conditions of release.  The appellant was 56 years old and
    was being held to account for many actions that took place when he was in his
    20s.  The trial judge found that, while the appellant was a risk to women with
    whom he had an intimate relationship, that risk was decreasing with age.
    Further, the trial judge held that there was no evidence that the appellant posed
    a risk to the community at large.

[47]

These mitigating factors notwithstanding, in response to the defence
    request for a conditional sentence, the trial judge stated that the offences
    were too serious for a sentence to be served in the community; a period of
    incarceration must be imposed.  However, he did take account of the mitigating
    factors by reducing what he identified as a fit sentence  one of four years
    by one year, and imposed a global sentence of three years.

[48]

The following exchange at p. 11 of his
    reasons for sentence explains the basis upon which the trial judge sentenced
    the appellant for each count on which he was convicted:

[2]

THE COURT:  So, a global sentence will be three
    years. Now, how do we have to split that up here? I guess any of these would
    carry three years, wouldnt they?

MS. FERLAND: Yes.

THE COURT: So, I will just put it on count four,
    and the others will be concurrent, so they will all be concurrent, three years.
    But I would like to record it on one of the more serious ones, count four, and
    then concurrent on the other counts.

[49]

In addition, he imposed a DNA order, a ten-year weapons prohibition and
    a sexual offender registry order.

IV.      ISSUES

[50]

The appellant raises the following issues on his conviction appeal:

1.

In
    relation to counts one, two, four, five, six, seven and eight, whether the
    trial judge erred in law by misapprehending the evidence and by relying on
    B.L.s previous consistent statements made to the police and in her testimony
    at the preliminary inquiry to support the credibility of her trial testimony. And,
    in relation to the same counts, whether the trial judge erred by failing to
    take the evidence of L.C. into account.

2.

In
    relation to count nine, whether the trial judge erred in law by finding that
    the appellants utterance to D.Q. amounted to a threat to kill D.Q.

3.

In
    relation to count ten, whether the trial judge erred in misapprehending the
    appellants evidence in concluding that he gave only a blanket denial.

4.

In
    relation to counts ten and 12, whether the trial judge erred by reversing the
    onus of proof.

[51]

The nature of the appellants sentence appeal is somewhat confusing.  In
    his Supplementary Notice of Appeal and in his factum, the appellant indicates
    he is appealing sentence on the basis that the trial judge erred by failing to
    impose a conditional sentence. However, in the appellants actual argument as
    set out in the body of his factum, he submits that his sentence appeal is
    dependent on a partially-successful conviction appeal.  Specifically, he asks
    that a conditional sentence be imposed [i]f the appellant is successful on all
    or part of his conviction appeal. He fails to offer any basis for varying the
    sentence if the conviction appeal is dismissed in its entirety.

V.        ANALYSIS

The Convictions

(i)
Did the trial judge err in law by misapprehending the evidence and
    by relying on B.L.s previous consistent statements made to the police and in
    her testimony at the preliminary inquiry to support the credibility of her
    trial testimony?

[52]

As can be seen from the summary of the reasons for judgment, the Crowns
    case was largely dependent on B.L.s evidence at trial in which she described
    the events that supported each charge.  The appellant, in his testimony,
    disputed B.L.s version of events.  For the most part, this was a he said, she
    said case.  The
trial jud
ges assessment
    of B.L.s credibility was, as I have said, critical to his determination of
    whether the Crown had proven the facts in support of each count beyond a
    reasonable doubt.

[53]

The appellant submits that on all but one of the counts relating to
    B.L., count four, the trial judge erred in law by relying on B.L.s initial statement
    to the police and the testimony she gave at the preliminary inquiry as support
    for preferring B.L.s testimony over that of the appellant.  The appellant
    argues that the trial judges error in using B.L.s prior statements was
    two-fold.   First, and most significantly, the statements were not part of the
    record available to the trial judge.  Secondly, the trial judge was not
    entitled to use B.L.s prior statements, even if they were in evidence, to
    support her trial testimony.

[54]

The portion of the reasons relating to B.L.s allegations, over 50
    pages, contain a number of references that clearly demonstrate the importance
    the trial judge attached to the consistency between B.L.s trial evidence and
    what she said in her extensive statement to the police and her testimony at the
    preliminary hearing.

[55]

To refer to just a few, the trial judge said, in relation to count one:

Another factor is, within less than an hour of
    walking down the lane, the complainant is at a police office, and that same
    afternoon gives a detailed account of this incident, and also goes back over
    eleven years of allegations. She has been consistent on all the major issues in
    her statement, through preliminary, and through trial in her evidence. It is
    not reasonable, in my view, to suggest that kind of detailed fabrication can be
    put together and consistently maintained. She was at the police station 40 to
    60 minutes after she walked off the property. I just do not think it is
    reasonably possible for her to fabricate all this detail, and not trip herself
    up.

In relation to count five:

This allegation and her complaint is, again, first
    made on March 26, 2006, an hour and a half interview followed. It is not
    reasonably possible to fabricate this detailed account, repeated again in her
    evidence at the preliminary, and again at trial. He denies it, and I reject
    that denial. It is not going to raise as a reasonable doubt. The evidence of
    the complainant proves the allegation beyond a reasonable doubt because it is
    detailed, specific, and consistent.

Finally in relation to count eight:

Again, these allegations go back nine years. They
    were given to the police during an interview March 26, 2006 when they were
    first reported. No reasonable possibility they were all fabricated under those
    circumstances. They are consistent in detail.

[56]

In response to the appellants arguments relating to the improper use of
    B.L.s statement to the police and her testimony at the preliminary, the Crown
    submits that the trial judge relied on these previous statements only for the
    purpose of his analysis of the defence argument that B.L.s allegations were
    fabricated.  This, argues the Crown, the trial judge was entitled to do.

[57]

My fundamental difficulty with this submission is that B.L.s prior
    statements were not in evidence.  Neither the recording of the police interview
    or its transcript nor the transcript of B.L.s evidence at the preliminary
    inquiry was tendered by counsel to form part of the trial evidence.  Both the
    preliminary inquiry and the police statement came up at various points during
    the trial and, in relation to B.L., defence counsel did read from the
    transcript of B.L.s police statement in cross-examining B.L.

[58]

While there is nothing in the record that indicates how the transcript
    of B.L.s police statement or of the preliminary inquiry came into the
    possession of the trial judge, I can only presume that it took place informally
    as the trial proceeded.  There is certainly nothing in the transcript of the
    trial that demonstrates that either statement or a portion of either statement was
    formally tendered or admitted into evidence.

[59]

These observations bring into focus problems that arise when proper
    attention is not paid to the boundaries of the trial evidence.  Both counsel
    and the trial judge are responsible for ensuring that there is no confusion
    about what is and what is not available to the trier of fact for the purposes
    of deciding the case.  Here, where Crown counsel wished to make use of the prior
    statements for the permissible purpose of rebutting the defence of fabrication,
    the Crown was obliged to decide first whether the entire statement or
    statements or just a portion were required, then to seek a ruling on the
    admission of what the Crown determined was necessary and finally, to ensure
    that what was admitted into evidence was limited to the information tendered
    and ruled admissible and nothing more. In some instances, for example, this may
    require redacting a portion of the page of a document to ensure that information
    not in evidence does not inadvertently become part of the record. Similarly,
    the trial judge has an obligation to monitor the admission of evidence
    carefully in order to ensure not only that the record is restricted to the material
    ruled admissible, but also that the evidence is used only for the purpose for
    which it was admitted.  see:
R. v. Morrisey
(1995), 22 O.R. (3d) 514.

[60]

I also disagree with Crown counsels argument that the trial judges
    only use of the previous statements was in considering the defence argument
    that B.L. had a motive to fabricate.  The above excerpts from the reasons for
    judgment demonstrate otherwise. They clearly indicate that the trial judge used
    the previous statements that were not in evidence, as corroborative of B.L.s
    testimony.

[61]

In
Morrisey
, at p. 541, Doherty J.A., highlights the fundamental
    requirement that a verdict must be based exclusively on the evidence adduced at
    trial. In the same paragraph, Justice Doherty explains that where a trial
    judge has misapprehended the evidence,
including resorting to material not
    before him or her
, and the errors play an essential part in the reasoning
    process resulting in a conviction then  the accuseds conviction is not based
    exclusively on the evidence and is not a true verdict (emphasis added). This
    reasoning was adopted by the Supreme Court of Canada in
R. v. Lohrer
,
    [2004] 3 S.C.R. 732, at paras. 2-3.

[62]

In my view, the appellant has demonstrated that the convictions in
    relation to counts one, two, four, five, six, seven and eight depended on
    material not in evidence and this material played an essential part in his
    conviction of the appellant.  While the trial judge did not mention B.Ls
    previous consistent statements in his analysis of count four and the Crowns
    case was supported by the testimony of other witnesses, reasons are to be read
    as a whole and I am not satisfied the trial judges conviction on count four
    was not tainted by the material not in evidence. Where a miscarriage of justice
    within the meaning of s. 686(1)(a)(iii) of the
Criminal Code
has been
    demonstrated, the appellant does not need to show that the verdict cannot be
    supported by the evidence within the meaning of s. 686(1)(a)(i).  It follows that,
    in relation to these counts, the convictions must be quashed.

[63]

While it is not necessary for me to deal with the appellants second
    argument, namely, that the trial judge erred by failing to take into account L.C.s
    evidence about B.L.s motive to fabricate, I have decided, for the sake of
    completeness to do so.

[64]

I do not accept the appellants submission on this point. The trial
    judge did refer to L.C.s evidence, at p. 17 of his reasons for judgment, when
    considering whether B.L. had a motive to fabricate her evidence.  Although, in
    his reasons, the trial judge did not advert directly to L.C.s evidence about the
    toothpaste incident, it was not necessary in the circumstances since he had already
    rejected the appellants evidence with respect to this incident as being
    contrived and not credible.

(ii)       Did the trial judge err in law by finding the appellant
    guilty of uttering threats to kill D.Q.?

[65]

On this count, there were two issues for the determination of the trial
    judge.  Did the appellant actually say the words to D.Q. and second, did they
    amount to a threat?

[66]

The trial judge not only rejected the appellants denial that he said
    the words, but also found that it did not raise a reasonable doubt.  This
    conclusion was based largely on the trial judges finding that the appellants
    description of the circumstances under which he pled guilty in 1993 of
    assaulting D.Q., was incredible.  Furthermore, he accepted D.Q.s evidence that
    the appellant did say to her that he could kill [her] at any moment, and no
    one would be the wiser.

[67]

The trial judges conclusion that the appellant said those words to D.Q.
    was based on his assessment of the evidence. I see no reason to interfere.

[68]

The only remaining issue is whether these words, in the circumstances in
    which they were uttered, support a conviction for uttering a death threat.  Counsel
    for the appellant submits that these words amount only to an assertion of the
    ability to kill and do not convey a present intention to kill now or in the
    future - the
actus reus
of uttering a threat to kill.

[69]

Based on the following analysis, I do not agree with this submission.

[70]

Section 264.1(1)(a) of the
Criminal Code
provides that [e]very
    one commits an offence who, in any manner, knowingly utters, conveys or causes
    any person to receive a threat (a) to cause death  to any person.

[71]

In
R. v.

McCraw
, [1991] 3 S.C.R. 72, at pp. 82-83, the Supreme Court instructs
    that the question of whether the impugned words constitute a threat, which it
    describes as a question of law rather than one of fact, should be approached by
    looking at the matter objectively from the perspective of the ordinary,
    reasonable person:

The structure and wording of s. 264.1(1)(
a
)
    indicate that the nature of the threat must be looked at objectively; that is,
    as it would be by the ordinary reasonable person.  The words which are
    said to constitute a threat must be looked at in light of various factors.
     They must be considered objectively and within the context of all the
    written words or conversation in which they occurred. As well, some thought
    must be given to the situation of the recipient of the threat.

The question to be resolved may be put in the
    following way.
Looked at objectively, in the context of all the words
    written or spoken and having regard to the person to whom they were directed,
    would the questioned words convey a threat of serious bodily harm to a
    reasonable person?

[Emphasis added.]

See also
R. v. Clemente
, [1994] 2 S.C.R. 758, at p. 763,
R. v. Batista
(2008), 270 O.A.C. 73, at paras. 12-20.

[72]

The Crown must
    therefore prove two elements to establish the offence of uttering a threat.
    First, the Crown must prove that the appellant made a threat
to cause death;
and second, that he made the threat
    knowing that it would be taken seriously.

[73]

With respect to the second element, in
R. v. LeBlanc
,
    [1989] 1 S.C.R. 1583, the Supreme Court approved the trial judges ruling that
    whether the threatener intends to carry out the threat is irrelevant to
    determining if a conviction can be maintained.  It is the element of fear
    instilled in the victim by the issuer of the threat at which the criminal
    sanction is aimed.  Section 264.1 provides that the threat must be
    knowingly uttered or conveyed by the accused.  Thus the Crown is required
    to establish that the accused intended to threaten the victim with death.

[74]

However, here, since the appellant denied uttering the
    words in issue and therefore provided no evidence as to context or his intent,
    the determination as to whether there was such a subjective intent must be
    based upon a consideration of the words themselves.

[75]

In considering the first element, whether the
    words amounted to a threat, the ordinary, reasonable person would take into
    account all the circumstances, including the manner in which the words were communicated,
    the person to whom the appellant addressed his comments and the relationship
    between the appellant and the subject of the alleged threat.

[76]

In my view, the trial judge made no error in concluding that
    objectively, even without the evidence about the hole in the ground, a
    reasonable person would consider the words uttered to be a threat, given the
    nature of the appellants relationship with D.Q.  a relationship in which the
    appellant had been physically and emotionally violent towards D.Q. over an
    extended period of time.

[77]

I would therefore not give effect to this ground of appeal.

(iii)     Did the trial judge misapprehend the appellants evidence
    in respect of count 10, concluding that he gave only a blanket denial?

[78]

The appellant submits that the trial judges finding that that the
    appellant gave no evidence about any incidents surrounding any of these
    allegations was contrary to the evidence as the record demonstrates that the appellant
    testified in some detail about various aspects of his relationship with M.O,
    including incidents that took place that related to some of the allegations
    that formed the basis of count ten.  Furthermore, argues the appellant, since
    he took the position that none of the assaults described by M.O. took place, it
    was unreasonable to expect him to provide detailed information about such
    events.

[79]

In my view, the trial judges comment that the appellant gave a blanket
    denial must be read in the context of the entirety of the portion of his
    reasons dealing with count ten, in which the trial judge reviewed the
    appellants testimony in full, ending with his rejection of the appellants
    version of events and his conclusion that it did not raise a reasonable doubt.
    In accepting M.O.s evidence, the trial judge found that it was balanced,
    specific, detailed and consistent.

[80]

I see no error in the trial judges treatment of the evidence relating
    to count ten or in his analysis of the evidence that led him to the conclusion
    that the Crown had proven the assaults.  I would therefore not give effect to
    this ground of appeal.

(iv)      Did the trial judge err by reversing the onus of proof in
    relation to counts ten and 12?

[81]

With respect to count ten, the appellant submits that the trial judge
    erred when he said that M.O.s evidence would have to be a total fabrication
    if the appellants was to be believed.  The appellant only needed to raise
    reasonable doubt; he did not need to prove fabrication.  With respect to count
    12, the appellant similarly argues that the trial judges findings that it was
    unreasonable to believe the appellants testimony that M.O. would pursue the
    appellant after leaving him for a man with whom she still lives 22 years later,
    and that it defied common sense that she would falsely report a rape to her
    boyfriend, were unreasonable.  These findings, argues the appellant, show that
    the trial judges approach was to assume that he committed the sexual assault
    against M.O., as it was only then that his testimony would defy common sense.

[82]

I would not give effect to this ground of appeal.

[83]

In my view, the trial judge did not reverse the onus of proof with
    respect to count ten or count 12.  Throughout his reasons, the trial judge
    repeatedly referenced the required approach to the assessment of evidence
    established in
W.(D.)
. The trial judge was entitled to reject the
    appellants evidence and find that it did not raise a reasonable doubt.  With
    respect to count ten, the trial judges comment about fabrication was nothing
    more than a recognition of the obvious  that the appellants and M.O.s
    evidence conflicted and thus could not both be true.  Similarly, with respect
    to count 12, the trial judge was entitled, on the available evidence, to make
    the findings of fact that he did. In noting that the appellants version of the
    events was unreasonable, the trial judge was merely explaining why that version
    did not raise a reasonable doubt about his guilt.

The Sentence

[84]

Since I would allow the appeal in relation to counts one, two, four,
    five, six and eight, quash the convictions and order a new trial and dismiss
    the appeal in relation to all other counts, it is necessary to consider only
    the sentences imposed on counts nine, ten and 12.  The death threat to D.Q. and
    the assaults on M.O., including the sexual assault that forms the basis of
    count 12, must be considered separately for sentencing purposes.

[85]

In this province, sentences for uttering a death threat in circumstances
    similar to those in this case tend to range from the imposition of a suspended
    sentence to six months imprisonment: see
R. v. Rowe
(2006), 212 C.C.C.
    (3d) 254 (C.A.),
R. v. Bytyqi
(2004), 186 O.A.C. 114 (C.A.),
R. v.
    Stiliadis
, 2004 CarswellOnt 1388 (C.A.).

[86]

The jurisprudence of this court suggests that a sentence of one to two
    years will generally be appropriate for a conviction for common assault based
    on facts such as those comprising count ten, committed against a spouse or
    domestic partner in the context of a lengthy pattern of domestic abuse: see
R.
    v. Petrovic
(1984), 47 O.R. (2d) 97 (C.A.),
R. v. Inwood
(1989), 32
    O.A.C. 287 (C.A.),
R. v. R.(B.S.)
(2006), 81 O.R. (3d) 641 (C.A.),
R.
    v. Sidhu
, 2011 ONCA 139,
R. v. States
(2006), 214 O.A.C. 106 (C.A.).

[87]

Finally, in cases of sexual assault involving forced intercourse with a
    spouse or former spouse, sentences generally range from 21 months to four
    years: see
R. v. R.(B.S.)
(2006), 81 O.R. (3d) 641 (C.A.),
R. v.
    Jackson
, 2010 ONSC 3910,
R. v. M.(B.)
, 2008 ONCA 645,
R. v. Nolan
,
    2009 ONCA 727,
R. v. Toor
, 2011 ONCA 114.

[88]

These observations take me to the question of whether the sentences I
    would impose for these crimes should be served consecutively or concurrently.  While
    the decision to impose sentences consecutively or concurrently is entitled to
    the same deference customarily afforded to sentencing decisions (
R. v.
    M.(T.E.)
, [1997] 1 S.C.R. 948, at para. 46), in this case, the trial judge
    failed to offer any justification for his decision that each sentence be served
    concurrently. As such, there is no reasoning to which to defer. Given the
    length of time between the offences committed against D.Q. and against M.O.,
    the fact that they were committed against two different complainants and the
    lack of any other relevant nexus between the offences, including those in
    relation only to M.O., in my view the trial judge made a reversible error in
    deciding that the sentences should be served concurrently: see
R. v. W.Q.
(2006),
    213 O.A.C. 217 (C.A.), at para. 15,
R. v. Traverse
(2008), 231 Man R.
    (2d) 123 (C.A.), at para. 47.

[89]

At this juncture it is important to note that the Crown chose not to
    cross appeal sentence.  Therefore, the sentence I would impose in relation to
    the three counts that require reconsideration cannot exceed three years, in
    total.

[90]

Against that background, having regard to the principles set out in s. 718
    of the
Criminal Code
, the aggravating circumstances, the main one being
    the fact that the appellants acts were acts of spousal abuse, and the
    mitigating factors identified

by the trial judge, I am of the view that
    fit sentences are two months for count nine, ten months for count ten and two
    years for count 12.  I would order the sentences for counts ten and 12 to be
    served consecutively with each other and consecutive to the sentence for count
    nine.

DISPOSITION

[91]

In the result, I would allow the appeal and quash the convictions on counts
    one, two, four, five, six, seven and eight and direct a new trial.  I would
    dismiss the appeal from the convictions on counts nine, ten and 12, grant leave
    to appeal the sentence imposed on those counts, allow the appeal and vary the
    sentences imposed on those counts to two months for count nine, ten months for
    count ten and two years for count 12, each sentence to be served consecutively
    to each other sentence.

RELEASED:

AUG 26 2011                                             Gloria
    Epstein J.A.

KMW                                                          I
    agree K.M. Weiler J.A.

I
    agree R.A. Blair J.A.

[1]

B.L. are the complainants initials since her
    marriage.  She is referred to as B.V. in the reasons for judgment.

[2]

The proper approach to sentencing an offender
    for multiple offences is unsettled. The courts of appeal of various provinces
    have set out two competing approaches. One requires a sentencing judge to fix
    an appropriate global sentence first and then assign sentences for each
    individual offence and designate them concurrent or consecutive to fit within
    the already determined global sentence: see
R. v. Jewell
(1995), 83
    O.A.C. 81 (C.A.). The alternative approach requires a sentencing judge first to
    assign fit sentences for each offence and designate those sentences as
    concurrent or consecutive and only then, as a final step, consider the total
    sentence to ensure it does not offend the principle of totality: see
R. v.
    Adams
(2010), 291 N.S.R. (2d) 206 (C.A.),
R. v. Wozny
, [2011] 2
    W.W.R. 630 (C.A.).

Here, the trial judge followed the approach set out
    by this court in
Jewell
.


CITATION:
Treat
          America Limited v. Nestlé Canada Inc., 2011 ONCA 560

DATE: 20110824

DOCKET: C53415

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and Watt JJ.A.

BETWEEN:

Treat America Limited

Applicant
(Respondent in Appeal)

and

Nestl
é
          Canada, Inc.

Respondent (Appellant)

Robert E. Kwinter and Daniel J. Stern for the appellant,
          Nestlé Canada, Inc.

Darryl T. Mann for the respondent, Treat America Limited

Heard: July 26, 2011

On appeal from the order of C. Campbell J. of the Superior
          Court of Justice (Commercial List), dated February 25, 2011.

R.A. Blair J.A.:

Background

[1]

Nestlé Canada, Inc. seeks to set aside the order of
    Justice C. Campbell, dated February 25, 2011.  In that order, Campbell J. allowed the application of Treat America
    Limited to enforce a Letter of Request (LOR) from Judge Christopher C. Conner
    of the United States District Court for the Middle District of
    Pennsylvania.

[2]

The LOR asked for the assistance of the Superior Court
    of Justice in requiring Nestlé Canada to produce documents maintained by or for
    three of its former or current employees and to produce a representative to be
    examined in relation to the documents and to the issues raised in the pleadings
    in proceedings pending in the U.S. District Court.  Those proceedings (the U.S. Proceedings)
    consist of a number of class actions against several large producers and
    distributors of candy products alleging violations of U.S. antitrust laws by
    conspiring to fix prices of chocolate candy sold in the United States.  These actions have been consolidated for
    pre-trial purposes and are now proceeding as a Multi-District Litigation in the
    U.S. District Court.  Judge Conner is
    supervising them.  A certification
    hearing is pending.

[3]

The U.S. Proceedings target various corporate entities relating
    to well-known candy brands  Hershey, Mars, and Cadbury, as well as
    Nestlé.  Nestlé Canada is part of the
    world-wide group of Nestlé companies which, together, form the largest food and
    beverage enterprise in the world.  Nestlé
    S.A., a Swiss corporation, is the parent company.  Nestlé U.S.A., like its Canadian sibling, is
    also a subsidiary.

[4]

The U.S. Proceedings appear to spring from an earlier
    2007 investigation by the Canadian Competition Bureau into alleged price fixing
    relating to the supply of chocolate confectionery products in Canada between
    2002 and 2007.  Those allegations
    involved Nestlé Canada and the Canadian entities from the Hershey, Mars and
    Cadbury enterprises.  Search warrants
    were executed and records seized based on affidavits sworn by Daniel Wilcock,
    an officer of the Competition Bureau  affidavits that set out in some detail
    various price fixing conversations, meetings and email exchanges involving
    the three targeted individuals at Nestlé Canada and individuals from the other candy
    corporate enterprises in Canada.

[5]

Nestlé Canada has never been charged with any offence
    as a result of the Competition Bureaus investigation, and none of these
    conversations, meetings or email exchanges related to any activities in the
    United States.

[6]

Although Nestlé Canada was initially named as a party
    to the U.S. Proceedings  along with Nestlé S.A., Nestlé U.S.A., and various
    entities connected with the Hershey, Mars and Cadbury enterprises  the claims
    against it were dismissed in August 2009 on jurisdictional grounds.  Nevertheless, the plaintiffs in the U.S.
    Proceedings continue to assert allegations respecting the conduct of Nestlé
    Canada and its representatives in the pleadings.  However, since the U.S. claims have been
    dismissed against Nestlé Canada, neither the U.S. District Court nor the
    parties in the U.S. Proceedings have any direct means to compel Nestlé Canada
    to produce documents that may be relevant to the pleadings or to require its
    representatives to be examined.  This is
    why the respondent has resorted to the LOR application asking the Superior
    Court of Ontario for assistance.

The Superior Court Proceedings

[7]

Treat America is one of the plaintiffs in the U.S.
    Proceedings and has been authorized to bring the LOR application in the U.S.
    proceedings and to seek its enforcement in Canada.  Judge Conner issued his initial LOR on July
    1, 2010.  Treat America commenced an
    application in the Superior Court (Commercial List) on September 13, 2010,
    seeking an order giving effect to the LOR.

[8]

Justice C. Campbell presided over the application and a
    series of case conferences held to resolve issues relating to production of the
    requested documents, but without success.  Campbell J. then heard the application and delivered reasons on January
    25, 2011, canvassing the facts, the issues and the law, but ultimately
    adjourning the application pending receipt of clarification from Judge Conner
    with respect to three particular areas of concern, namely,

a)

whether
    there was any mechanism for Nestlé Canada to challenge before the U.S. District
    Court the scope of discovery sought on the basis of relevance in the U.S.
    Proceedings before production and discovery was made;

b)

what
    assumptions the U.S. District Court makes with respect to the applicability of
    immunity rules and admissibility of the evidence obtained; and

c)

whether he could adjourn the motion for enforcement of
    the LOR until after the certification motion in the U.S. Proceedings without
    interfering with the due process of those Proceedings.

[9]

Judge Conner responded to the requests for
    clarification by way of a Renewed LOR dated February 15, 2011.  He advised, first, that while there was no
    mechanism by which Nestlé Canada could challenge the scope of discovery in the
    U.S. Proceedings, the challenges now raised in the Ontario application (as set
    forth in Nestlé Canadas factum filed before Campbell J. and provided to Judge
    Conner) substantially duplicate Nestlé USAs earlier challenges in the U.S.
    Proceedings prior to the issuance of the LOR.  Secondly, Judge Conner assumed that Canadas immunity rules would apply
    to the discovery provided by Nestlé Canada, including the deposition testimony
    of the targeted witnesses and that the practical effect of that would have to
    be addressed in the U.S. Proceedings.  He
    also noted that there is a Protective Order in place with respect to the U.S.
    Proceedings that will permit Nestlé Canada to designate as confidential,
    documents and testimony produced in the Proceedings pursuant to the LOR.  Finally, Judge Conner advised that the
    Ontario court could not adjourn the LOR application until after the class
    certification phase in the U.S. Proceedings because of the requirement in those
    Proceedings that he examine plaintiffs factual and legal allegations
thoroughly
, with a rigorous analysis
    which may include a preliminary inquiry into the merits (emphasis in
    original).

[10]

Campbell J. then heard further submissions and released
    his decision, with further reasons, on February 25, 2011.  He stated that he was more than satisfied
    with the responses to the questions posed [and] contained in the Renewed Letter
    of Request and that he was satisfied that as a matter of comity it is
    appropriate to honour the Letter of Request.  He granted the order for enforcement of the LOR.

Analysis

[11]

Nestlé Canada appeals from that decision.  Mr. Kwinter argues on its behalf that the
    respondent has failed to establish that the documentation and information
    sought are relevant or necessary for use in the U.S. Proceedings or not
    otherwise obtainable.  He also submits
    that the scope of production sought is too broad and that the order sought is
    unduly burdensome on Nestlé Canada since it is no longer a party to the U.S.
    Proceedings.

[12]

These arguments track the essential criteria that an
    Ontario court is to consider when determining whether to give effect to a
    letter of request, as outlined in
Re
    Friction Division Products, Inc. and E.I. Du Pont de Nemours & Co. Inc. et
    al. (No. 2)
(1986), 56 O.R. (2d) 722, at p. 732, and confirmed by this
    Court in a number of subsequent decisions:  see, for example,
France (Republic) v. De Havilland Aircraft of Canada Ltd
. (1991), 3
    O.R. (3d) 705;
Fecht
v. Deloitte & Touche
(1997), 32
    O.R. (3d) 417;
O.P.S.E.U. Pension Trust
    Fund v. Clark
(2006), 270 D.L.R. (4
th
) 429; and
Presbyterian Church of Sudan (Re)
(2006),
    275 D.L.R. (4
th
) 512.  Enforcement must also be consistent with the laws of Ontario and not
    contrary to public policy.

[13]

Mr. Kwinters overarching argument, however  into
    which the others fold  is that the application judge failed to exercise an
    independent discretion with respect to the foregoing criteria, being content
    instead not to go beyond the LOR on its face and to rely on the findings of
    Judge Conner.  He says this constitutes
    an error in law.

[14]

I do not accept these submissions.  In my view, the application judge considered
    and applied all of the pertinent principles, did not accept the LOR at face
    value and independently determined that it was appropriate, as a matter of
    comity, to honour the LOR.  I say this
    for the following reasons.

[15]

First, while it is true that the application judges
    reasons are relatively brief and that he did not engage in an extensive
    analysis of the evidence and the principles involved, context is
    important.  This was a case-managed
    proceeding on the Commercial List in which there had been a number of case
    conferences attempting to sort out the issues relating to production and the
    parameters of production.  The
    application judge is a seasoned Commercial List judge.  He referred to the
Friction Division Products
criteria in his reasons and those very
    criteria  without regard to their content  would have formed the framework
    for the case management discussions.  I
    am satisfied that the application judge was alive to, and applied, the relevant
    principles in arriving at his decision.

[16]

Secondly, the application judge was sensitive to the
    issues of comity and deference to the foreign court that properly underlie
    requests for assistance, but was not a slave to them.  I do not agree that he simply accepted the
    LOR at face value, failed to look beyond it, and did not exercise an
    independent discretion.

[17]

Canadian courts take a broad approach to such requests,
    and as the application judge noted, the exercise of discretion is based on the
    general principle that international comity dictates a liberal approach to
    requests for judicial assistance.  The
    classic statement in this regard is that of Dickson J. (as he then was) in
R. v.
Zingre
,

[1981] 2 S.C.R. 392, at p. 401:

It is upon this comity
    of nations that international legal assistance rests.  Thus the courts of one jurisdiction will give
    effect to the laws and judicial decisions of another jurisdiction, not as a
    matter of obligation but out of mutual deference and respect.  A foreign request is given full force and
    effect unless it be contrary to the public policy of the jurisdiction to which
    the request is directed ... or otherwise prejudicial to the sovereignty of the
    citizens of the latter jurisdiction.

[18]

Had the application judge simply accepted the LOR at
    face value, he would not have made the requests for clarification that he posed
    to Judge Conner before finalizing his decision.  Those requests touched on the extent to which the U.S. District Court would
    be made aware of the objections being advanced by Nestlé Canada, the extent to
    which the U.S. District Court would be responsive to immunity issues, and
    whether the request for assistance could be deferred until after the
    certification hearing in the U.S. District Court.  The application judge received responses that
    satisfied him on all counts.  Most
    significant for present purposes, perhaps, is the response to the first
    question: while the answer was that no procedure existed for Nestlé Canada to
    object to the scope of production requested in the U.S. Proceedings, Nestlé
    U.S.A. had in fact made all of the arguments presented before the application
    judge (and before us) on behalf of Nestlé Canada in the course of opposing the
    LOR before Judge Conner; the U.S. District Court was therefore fully apprised
    of the issues raised by Nestlé Canada with respect to the nature and scope of
    the production and examination requested.

[19]

The law is clear that Judge Conners decision is
    entitled to considerable deference in the Canadian application and that the court
    receiving the request for assistance does not sit in appeal from the decision
    of the requesting court:
Connecticut
    Retirement Plans and Trust Funds v. Buchan
(2007), 225 O.A.C. 106 (C.A.),
    at para. 13.  In this case, in addition,
    it is apparent that Judge Conners decision was arrived at after a thorough
    review of the pleadings in the U.S. Proceedings and the evidence before him,
    and after full and contested argument.  The
    LOR itself reflects the careful findings he made and his conclusions as to why the
    information requested is relevant to those proceedings.  Judge Conner, too, is case managing a complex
    series of class actions that comprise the Multi-District Litigation, and is
    therefore familiar with the issues involved in those proceedings.

[20]

These factors distinguish the application from that
    considered by this Court in
Presbyterian
    Church of Sudan,
where the LOR had been granted on the basis of an
    unopposed motion and the representations of counsel.  This Court concluded that the record did not
    support the sweeping production order sought and that the application judge had
    failed to direct his mind to the important issues of relevance and
    obtainability.  In those circumstances,
    the Court held at
para
. 32, that an Ontario court is
    not bound to accept the language of the foreign request as the final say, but
    is entitled to go behind it to examine precisely what it is the foreign court
    is seeking to do, in order to ensure that the requirements of Ontario law are
    met in giving effect to the foreign request.  In this case, the LOR application before Judge Conner was supported by
    the affidavit evidence of Mr. Wilcock of the

Canadian Competition Bureau, referred to above, which explains the role of
    the targeted Nestlé Canada individuals and sets out in considerable detail the
    investigative information concerning conversations, meetings and email
    exchanges in which they were involved.  That evidence was also in the record before Justice Campbell.

[21]

Mr. Kwinter argues that the Wilcock evidence does not
    meet the relevance test in these circumstances because the information does not
    pertain to anything that happened in the United States and the U.S. Proceedings
    do not allege any antitrust price fixing in Canada.  I do not accept this submission.

[22]

The pleadings in the U.S. Proceedings continue to set
    out allegations against Nestlé Canada and its representatives, alleging a
    connection between the conduct of the Canadian representatives and the U.S.
    antitrust activities.  The pleadings tie
    this Canadian conduct into the U.S. Proceedings on the basis that the U.S. and
    Canadian markets for candy are tightly interwoven  involving integrated and
    substantial cross-border commerce, cooperation through the use of licensing
    agreements, and memberships in trade associations.  It is alleged that because the Nestlé
    business is organized by geographic region and because Nestlé Canada and Nestlé
    USA are part of Nestlés Zone Americas, it is likely that decisions relating
    to pricing in Canada were part of an overall North American budgeting and
    strategic planning process which necessarily affected pricing in the United
    States; hence the relevance of production and discovery from the Canadian
    entity and its representatives.

[23]

Whether these allegations can be substantiated at trial
    is not the question.  Judge Conner has
    found the sought-after Canadian production and testimony to be relevant to the
    U.S. Proceedings.  His findings to this
    effect are entitled to considerable deference and, it seems to me  as it did
    to the application judge  that they are supported on the record before him and
    before the application judge.

[24]

I am also satisfied, as was the application judge, that
    the other
Friction Division Products
criteria are met on the record.  Treat America
    has requested the sought-after information from Nestlé Canada in a number of
    ways, but without success.  Since the
    Canadian entity is no longer a party to the U.S. Proceedings, the information
    is not compellable in any other fashion.  It is not an answer to say that some information pertaining to the
    Canadian operations might be obtained from production and depositions of the
    other candy producers and distributors.  The
    issue is whether evidence of the same value as that sought from the person to
    be examined can otherwise be obtained:
Connecticut
    Retirement Plans and Trust Funds v. Buchan
, at para. 19.  That cannot be the case, in my view, because
    production and discovery from the other candy producers and distributors will
    not provide access to internal memoranda, notes of meetings and email exchanges
    that may exist within the confines of the Nestlé Canada internal information system.
     Moreover, as this Court has previously
    noted, where fraud-like allegations are in play  as they are in the U.S.
    Proceedings  evidence providing confirmation of other information is
    important:
Connecticut Retirment Plans
    and Trust Funds v. Buchan
, at para. 19.  The criterion that the information is not otherwise readily obtainable
    has been met.

[25]

So, too, has the criterion of necessity.  For the reasons set out above in the
    relevance analysis, the sought-after information is necessary for the trial and
    for the disposition of the U.S. Proceedings.  Because of the thorough and rigorous examination of the record that is
    necessary for the certification procedure under the U.S. rules  as explained
    by Judge Conner  the information is necessary at the certification stage as
    well.

[26]

Nestlé Canada does not argue that enforcement of the
    LOR would be contrary to public policy.

[27]

Finally, I do not accept the argument that the
    sought-after production and discovery would be unduly burdensome to Nestlé
    Canada.  First, we were advised that the
    Nestle Canada representative would be required for no more than a day.  Secondly, as part of the case management
    process, electronic search parameters were developed that will enable Nestlé
    Canada to search for, identify and produce the documents in an orderly and
    expeditious manner.  Nestlé USA has
    agreed to operate under similar parameters in the U.S. Proceedings.  Moreover, it appears that similar
    documentation has already been organized and produced in the Canadian
    Competition Bureau investigation.

Conclusion

[28]

It is not contested that the application judge
    considered and applied the requirements of s. 60 of the
Evidence Act
, R.S.O. 1990, c. E.23 and s. 46 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5:
    the LOR is issued by a foreign court of competent jurisdiction in relation to a
    civil proceeding in that jurisdiction, and the targeted witnesses are within
    the jurisdiction of the Ontario courts.  The record amply supported the application judges conclusion that the
    necessary criteria for enforcement of the LOR had been met, and I see no
    reversal of the burden of proof or other error in the exercise of his
    discretion in granting the order sought.

[29]

It follows that I would dismiss the appeal.

[30]

Treat America is entitled to its costs of the appeal,
    fixed in the agreed upon amount of $30,000 inclusive of disbursements and all
    applicable taxes.

R.A. Blair J.A.

I agree K. Feldman
    J.A.

I agree David Watt
    J.A.

RELEASED:  August 24,
    2011


CITATION: Vettese v. Vettese, 2011 ONCA 552

DATE: 20110810

DOCKET: C52670

COURT OF APPEAL FOR ONTARIO

Goudge, Juriansz and MacFarland JJ.A.

BETWEEN

Isabelle Vettese

Applicant (Appellant)

and

John Frank Vettese

Respondent (Respondent)

Isabelle Vettese, acting in person

Samantha Keser, for the respondent

Heard: August 9, 2011

On appeal from the judgment of Justice Heather A. McGee of the
          Superior Court of Justice, dated August 11, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellant strenuously argues that this court has jurisdiction to
    hear her appeal. Assuming that this is so, we find the order appealed from one
    that was entirely within the trial judges discretion to make. There is no
    basis for us to interfere with it.

[2]

We agree with the trial judge when she says in the context of a request
    for final orders on the substantive issues of spousal support and equalization,
    the use of allegations alone is woefully inadequate. A failure to defend is
    simply not a sufficient basis for the findings of fact that the appellant
    seeks.

[3]

The appellant will have a chance at her trial to put evidence before
    the court to support her request for relief.

[4]

The appeal is dismissed.

S. T.
    Goudge J.A.


CITATION: Agribrands Purina Canada
      Inc. v. Kasamekas, 2011 ONCA 581

DATE: 20110907

DOCKET: C51618 and C51637

COURT OF APPEAL FOR ONTARIO

Goudge, Gillese and Juriansz JJ.A.

BETWEEN

Agribrands Purina Canada Inc.

Plaintiff (Appellant)

and

Walter Kasamekas and Sherry Kasamekas, Raymond Joseph
          Jackon and Savitri Jackson

Defendants (Respondents)

AND BETWEEN

Walter Kasamekas and Sherry Kasamekas, Raymond Joseph
          Jackson and Raywalt Feed Sales

Plaintiffs by Counterclaim (Respondents)

and

Agribrands Purina Canada Inc.
, Rens Feed and
          Supplies Limited, Walter Rendell Job, McGrath Farms Inc., Edward James
          McGrath Farms Ltd., E.J.M. Farms Ltd. and
The Estate of Edward James
          McGrath

Defendants by Counterclaim
(Appellants)

Kirk F. Stevens and Gerard V. Thompson, for the appellants

W. Graydon Sheppard and Marc Munro, for the respondents

Heard: February 14, 2011

On appeal from the judgment of Justice Michael G. Quigley of
          the Superior Court of Justice dated January 6, 2010, with reasons reported at
          [2010] O.J. No. 84.

COSTS ENDORSEMENT

[1]

On June 20, 2011, this court released its decision in this appeal.

[2]

We allowed the appeal of Agribrands Purina Canada Inc. (Purina) from
    the trial judges finding that it was liable to the respondents for the tort of
    civil conspiracy. We also allowed Purinas appeal from the trial judges
    damages award for breach of contract, finding that the method of calculation
    used was in error, and substituting the proper method. Finally, we allowed
    Purinas appeal from the trial judges award of pre-judgment interest. However,
    we dismissed Purinas appeal of certain calculations by the trial judge that
    remained relevant to the proper method of calculating contract damages. We also
    dismissed Purinas appeal of the punitive damages awarded against it.

[3]

We also allowed the appeals of the Estate of Edward James McGrath and
    Rens Feed and Supplies Limited and Walter Rendell Job (together Rens) of
    the civil conspiracy finding against them, with the result that the respondents
    action against them failed.

[4]

We sought and received written submissions from all parties about what
    costs orders should result from this decision, both costs in this court and at
    trial. Those submissions have now been received and reviewed. Our decision is
    as follows.

COSTS OF THE APPEAL

[5]

Purina submitted a bill of costs for the appeal
    of $35,246.16 on a partial indemnity basis. Rens partial indemnity bill was
    $33,424.36. They both say that since they succeeded, and since they achieved a
    very significant overall reduction in the damages awarded to the respondents,
    they should be awarded $20,000 and $30,000 respectively as costs of the appeal.
    In other words, they argued for only a small reduction.

[6]

We conclude that Purina should receive costs of
    the appeal on a partial indemnity basis fixed at $15,000, inclusive of
    disbursements and applicable taxes. The reduction from the amount sought by
    Purina reflects the divided success that Purina achieved. In this context it is
    particularly important that this court found no basis to interfere with the
    punitive damages award against Purina. In these circumstances, a significant
    reduction from the amount claimed is warranted.

[7]

We award costs of the appeal to Rens on a
    partial indemnity basis fixed at the same amount, namely $15,000 inclusive of
    disbursements and applicable taxes. While Rens was completely successful in
    escaping liability, it split the issues in appeal with Purina, and they
    effectively argued the appeal together. Their costs, like Purinas, must
    reflect the overall result. This reduction reflects the overall divided success
    they achieved. In addition, Rens was unsuccessful in its principal argument,
    namely the challenge to certain damage calculations made by the trial judge.
    Our award reflects these considerations.

[8]

In summary, the respondents are ordered to pay
    costs of the appeal to Purina and Rens, each in the amount of $15,000,
    inclusive of disbursements and applicable taxes.

COSTS OF THE TRIAL

[9]

At trial, the parties agreed that the respondents
    should receive trial costs of $175,000. Purina now argues that while it remains
    liable for breach of contract and therefore should pay some trial costs to the
    respondents, the amount should be reduced to $125,000 to reflect Purinas
    success in resisting the claim for civil conspiracy.

[10]

We disagree. Purina contested the respondents
    contract claim at trial and was found liable for this and for punitive damages.
    In these circumstances, the respondents failure to succeed on one cause of
    action is no reason to deprive them of the fair costs that the parties agreed
    should be paid to the successful party. We therefore decline to change the
    trial costs to be paid by Purina to the respondents.

[11]

Rens seeks trial costs on a partial indemnity
    basis of approximately $65,000. They attended the entire trial. However, it appears
    to be agreed that only about one third of the trial was devoted to the civil
    conspiracy issue, the issue on which Rens was at risk. Hence a considerable
    reduction in the trial costs sought by Rens is appropriate. We therefore order
    that Rens receive trial costs in the amount of $25,000 inclusive of
    disbursements and applicable taxes.

[12]

The respondents argue that a Sanderson order
    should be made that they recover these trial costs awarded against them from
    Purina. We agree. It was entirely reasonable for the respondents to join Rens
    and Purina in this action. The relationship between Rens and Purina was
    fundamental to both the civil conspiracy claim and the contract claim. It made
    every sense for the respondents to sue Rens as well as Purina. A Sanderson
    order is therefore appropriate.

[13]

In summary, it is ordered that the respondents
    recover trial costs of $175,000 from Purina and Rens recover trial costs of
    $25,000 from the respondents which they in turn recover from Purina, each
    inclusive of disbursements and applicable taxes.

DISPOSITION

[14]

Order to go accordingly.

S.T. Goudge J.A.

E.E. Gillese
    J.A.

R.G. Juriansz
    J.A.


CITATION:
Atlas Holdings & Investments
          Inc. v. Vratsidas, 2011 ONCA 574

DATE: 20110906

DOCKET: C53379 and C53385

COURT OF APPEAL FOR ONTARIO

Sharpe, Armstrong and Karakatsanis JJ.A.

BETWEEN

Atlas Holdings
          & Investments Inc. and Atlas
          Maintenance Systems (A) Inc.

Plaintiffs (Respondents)

and

George
          Vratsidas
, Athanasia Vratsidas, Maria Vratsidas, Shawna
          Vratsidas, Constantinos Vratsidas, 1715034 Ontario Inc. carrying on
          business as First Maintenance Solutions, Krzysztof
          Plewa, and
First Maintenance Solutions Ltd.

Defendants (Appellants)

Rod  Byrnes for the appellants

Glenn E. Cohen, for the respondents

Heard and released orally:
August 24, 2011

On appeal from the judgment of
          Justice Peter A. Cumming of the Superior Court of Justice dated January 24,
          2011.

ENDORSEMENT

[1]

The plaintiffs, respondents in these appeals, commenced this action on
    April 17, 2007 for the fraudulent transfer of assets of Canaclean Building
    Services Inc., a bankrupt corporation.

[2]

On November 29, 2010, Campbell J. of the Superior Court of Justice
    permitted an amendment to the Amended Amended Statement of Claim which added
    First Maintenance Solutions Ltd. (First Maintenance) as a party defendant and
    added a second round of claims for the fraudulent transfer of assets against
    George Vratsidas and the other defendants.  Such claims are alleged to have
    been transferred to First Maintenance.  Counsel for both First Maintenance and
    George Vratsidas appeared on the motion before Campbell J.

[3]

After the amendments were made First Maintenance and George Vratsidas
    moved under rule 21 to strike the added claims against them on the basis that
    the claims asserted were statute barred as outside the two year limitation
    period pursuant to s. 4 of the
Limitations Act
.  Cumming J. of the Superior
    Court dismissed the rule 21 motion.  First Maintenance and George Vratsidas
    appeal the order of Cumming J.

[4]

The main issue before Cumming J. was discoverability.  Essentially,
    counsel for First Maintenance and George Vratsidas argued that searches of the
    Ontario Business Information System in respect to the name First Maintenance
    Solutions, would have ultimately led the plaintiffs to the discovery of the
    second round of transfers in 2007.  Cumming J. rejected this submission.  He
    concluded in paragraphs 13, 18 and 19 of his reasons:

In my view, all that a search determining the
    cancellation by 1715034 of the registered business name First Maintenance
    Solutions would tell the party making the search was that the registered
    business name was cancelled as of February 28, 2008.  It would not in itself
    suggest a new corporation with that name.  Moreover, a search of the Defendant
    1715034 as of that date would indicate that 1715034 continued to be actively
    carrying on a janitorial services business.

....

I am not satisfied that it is plain, obvious and
    without doubt that the impugned claim cannot succeed.

Moreover, I view the motion to strike as being a
    collateral attack on the Order of Campbell J. to add FMSL as a party, being in
    effect an attempt to appeal or set aside that Order.

[5]

We agree with the conclusion of Cumming J.  The appeals are therefore
    dismissed.

[6]

Costs to the respondents are fixed at $7,468.38 including disbursements
    and applicable taxes.

Robert Sharpe J.A.

Robert P. Armstrong J.A.

Karakatsanis J.A.


CITATION: Baltrusaitis v. Ontario, 2011
      ONCA 608

DATE:  20110922

DOCKET: C53322

COURT OF APPEAL FOR ONTARIO

Doherty, Weiler and Laskin JJ.A.

BETWEEN

Vytautas (Chuck) Baltrusaitis

Appellant (Plaintiff)

and

Her Majesty the Queen in Right of Ontario, the Attorney
          General of Ontario

Respondents (Defendants)

Rocco Galati, for appellant (plaintiff)

Hart Schwartz, for the respondents (defendants)

Heard:  September 21, 2011

On appeal from the order/judgment of Justice Whitaker of the Superior
          Court of Justice dated January 28, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We need not address the
Limitations Act
issues.  Assuming the
    claims were brought in time, we see no merit in the claims.  We are in
    substantial agreement with the reasons of the trial judge.  We would add that
    the vagueness of the s. 15 pleading and the absence of any evidence make any
    meaningful analysis of the s. 15 claim virtually impossible.  That claim would
    fail for that reason alone.
[2]

We see no error in the cost award made at trial.  We would award costs
    of the appeal to the respondent in the amount of $8,000, inclusive of
    disbursements and all applicable taxes.  Counsel for the Attorney General of
    Ontario advises that the Crown will undertake not to enforce the cost orders given
    the appellants financial circumstances.  We think that is a fair position to
    take.
[3]

The appeal is dismissed.


CITATION:
BTR Global Opportunity Trading Limited v. RBC
          Dexia Investor Services Trust, 2011 ONCA 620

DATE: 20110929

DOCKET: M40432 (C53335)

COURT OF APPEAL FOR ONTARIO

Laskin J.A. (In Chambers)

BETWEEN

BTR
          Global Opportunity Trading Limited, BTR Global Growth Trading Limited, BTR Global Arbitrage Trading
          Limited, and BTR Global Prospector Trading Limited

Plaintiffs (Respondents/Responding Parties)

and

RBC Dexia Investor Services Trust and

Lehman Brothers International (Europe)

Defendants (
Appellant/Moving Party
)

Christopher D. Bredt, for the moving party

Jeffrey Leon, for the responding parties

Heard: September 12, 2011

On a motion to stay the order of Campbell J. of the Superior
          Court of Justice dated January 25, 2011 pending leave to appeal to the
          Supreme Court of Canada.

Laskin J.A.:

A.

INTRODUCTION

[1]

The moving party, Lehman Brothers International (Europe) (LBIE), asks to
    stay the order of Campbell J. pending a decision on its motion for leave to
    appeal to the Supreme Court of Canada.  The responding parties, the
BTR Funds, oppose the stay.

[2]

BTR placed publicly and privately traded
    securities with LBIE under various brokerage contracts.  In September 2008,
    LBIE became insolvent.  BTR then brought two separate proceedings in Ontario to
    recover their securities  one in respect of the Canadian privately traded
    securities, and the other in respect of the Canadian publicly traded
    securities.  The motion before me concerns the action for recovery of the
    publicly traded securities.

[3]

LBIE sought a permanent stay of this
    action on the ground that the parties had agreed that a New York court would
    have exclusive jurisdiction over any proceeding relating to their contracts.
    Campbell J. refused to grant the stay.  In his view, even if the exclusive jurisdiction
    clause governed the parties dispute, BTR had shown strong cause why it
    should not be enforced.

[4]

On July 8, 2011 this court dismissed
    LBIEs appeal from Campbell J.
s order.  For somewhat different reasons,
    this court also concluded that BTR had shown strong cause not to give effect to
    the exclusive jurisdiction clause.  It is from this courts decision that LBIE
    seeks leave to appeal to the Supreme Court of Canada.  Earlier this month, LBIE
    perfected its leave motion.

B.

BACKGROUND

(1)

The parties and their contracts

[5]

LBIE was a trading and brokerage company
    registered in England.  Three years ago it went into administration, in other
    words, it became insolvent.

[6]

BTR had invested in a variety of privately
    traded and publicly listed securities.  Between 2002 and 2008, BTR entered into
    brokerage contracts with LBIE to settle trades in these securities.

(2)

The litigation

[7]

BTR started three proceedings, two in Ontario
    and one in New York.  In each proceeding it claimed beneficial ownership of the
    securities held by or for LBIE.

[8]

The first proceeding, for the recovery of
    Canadian private securities located in Toronto, was started in Ontario in
    October 2008.  Although not a party to that proceeding, LBIE was aware of it
    and chose not to participate.  In that proceeding, BTR obtained an order that
    it beneficially owns the Canadian private securities.  LBIE was given a copy of
    the order.  It took no steps to have it varied or set aside.

[9]

The second proceeding is an action in Ontario
    started in April 2010 for recovery of the Canadian publicly listed securities.
    Because LBIE has claimed an ownership interest in these securities, it is a
    named defendant in the action.  This action is the subject of the stay motion
    before me.

[10]

The third proceeding, also started in April 2010,
    is an action in the Supreme Court of New York for the recovery of United States
    privately traded securities physically located in the State of New York.  In
    this action, LBIE has counter-claimed for a declaration that it owns
all
the securities  publicly and privately traded, Canadian and American  that
    BTR has placed with it.

[11]

Because of LBIEs counter-claim, both the New
    York action and the Ontario action raise the identical question: who is the
    beneficial owner of the Canadian publicly listed securities?  LBIEs
    counter-claim also seeks to re-litigate the question of the ownership of the
    Canadian privately traded securities, which was determined in Ontario nearly
    three years ago.

[12]

In the New York action, pleadings have been
    completed and documentary production has begun.  LBIEs attorneys are pressing to
    move forward with examinations for discovery.  They will not agree to delay
    examinations in New York unless BTR agrees to a stay of its action in Ontario
    for recovery of the Canadian public securities.

[13]

Meanwhile, in Ontario, BTRs action has been
    stalled by the various stay motions brought by LBIE.  BTR has delivered a
    statement of claim; LBIE has not delivered a statement of defence, and does not
    wish to do so.  It relies on the exclusive jurisdiction clause, and does not
    want to attorn to the jurisdiction of the Ontario court.

(3)

BTRs undertakings

[14]

BTR wants to proceed with the Ontario action.
    It is content to have LBIE deliver a statement of defence without filing it
    with the court.  It undertakes not to argue that delivery of the statement of
    defence or participation in examinations for discovery constitute acts of
    attornment.  BTR also undertakes not to invoke the jurisdiction of the Ontario
    court, by, for example, a motion for summary judgment, while LBIEs leave
    motion is outstanding.

[15]

Against this background, I turn to the issues on
    the stay motion.

C.

ANALYSIS

[16]

The test for a stay pending appeal, including a
    motion for leave to appeal to the Supreme Court of Canada, is well
    established.  The moving party, here LBIE, must show that it has raised a
    serious issue to be adjudicated, that it will suffer irreparable harm if a stay
    is not granted, and that the balance of convenience favours a stay.  These
    three components of the test are interrelated in the sense that the overriding
    question is whether the moving party has shown that it is in the interests of
    justice to grant a stay.

[17]

In my view, LBIE has not shown that it is in the
    interests of justice to stay the Ontario action pending the determination of its
    leave motion.  Three considerations underlie my conclusion: the dubious merit
    of the leave motion; BTRs undertaking; and the ongoing New York litigation.

(i)
Serious issue - the merit of the leave motion

[18]

Ordinarily, the threshold for showing a serious
    issue to be adjudicated is low.  However, the criteria for granting leave to
    appeal to the Supreme Court of Canada add another layer to this component of
    the test.  Under s. 40(1) of the
Supreme Court Act
, R.S.C. 1985, c.
    S-26, the Supreme Court of Canada typically grants leave to appeal only in
    cases of public or national importance.  Thus, a provincial appellate court
    judge hearing a motion for stay pending leave to appeal to the Supreme Court of
    Canada must take account of the stringent leave requirements in the
Supreme
    Court Act
: see
Merck & Co. v. Nu-Pharm Inc.
(2000), 5 C.P.R. (4
th
)
    417 (F.C.A.) and
Ontario Public Service Employees Union v. Ontario (A.G.)
(2002), 158 O.A.C. 113.

[19]

The Supreme Court of Canada itself decides when
    leave should be granted and does not give reasons for doing so. As Rothstein
    J.A. noted in
Merck
, this puts provincial appellate court judges in a
    somewhat awkward position. Nonetheless, the stay test requires that I make
    some preliminary assessment of the merit of the leave motion.  And having made
    that assessment, I think that LBIEs leave motion has very little merit for the
    following three reasons.

[20]

First, LBIEs leave motion does not raise any
    real issues of national importance.  The general issue on which LBIE seeks
    leave, the contours of the strong cause test, has already been addressed by the
    Supreme Court of Canada quite recently in
Z.I. Pompey Industrie v. ECU-Line
    N.V.
, [2003] 1 S.C.R. 450.  Since
Pompey
was decided, several
    appellate court decisions have elaborated on the strong cause test.  One
    example is this courts decision in
Expedition Helicopters Inc. v. Honeywell
    Inc.,
2010 ONCA 351
.

[21]

If the appellate decisions post-
Pompey
conflicted
    with each other or with
Pompey
itself, that would improve LBIEs
    prospects for obtaining leave. In those circumstances the Supreme Court of
    Canada might wish to revisit
Pompey
and clarify the law.  But there is
    no conflict among the later decisions, and moreover, they are consistent with
Pompey.

[22]

In
Pompey
, Bastarache J. emphasized that
    the assessment of strong cause is a fact driven inquiry, in which the court
    should take account of all the circumstances of a given case.  When this court
    dismissed LBIEs appeal, it did precisely that.  After noting that BTR disputed
    whether the exclusive jurisdiction clause applied to the contracts it relied
    on, the panel concluded that even if the clause did apply, BTR had shown strong
    cause not to enforce it.  In so concluding, this court, like Campbell J., was
    particularly critical of LBIEs conduct, especially its failure to raise the
    question of Ontarios jurisdiction in the 2008 proceedings that dealt with the
    Canadian privately traded securities.  This court did not even call on BTR to
    respond LBIEs appeal.

[23]

Second, this is not a criminal, constitutional
    or administrative law case.  Those types of cases form the bulk of the Supreme
    Court of Canadas case load, and constitute most of the approximately 11 per
    cent of cases in which leave is granted. Therefore, it follows that those types
    of cases most often raise issues that the Supreme Court considers to be of
    public importance. This consideration further diminishes LBIEs prospect for
    obtaining leave.

[24]

Of course, the Supreme Court does grant leave
    in private law cases.  One recent example is this courts decision in
Momentous.ca
    Corporation v. Canadian American Association of Professional Baseball Ltd.
,
    2010 ONCA 722.  That case, however, raises entirely different questions,
    including one of major national importance, which is not present here: the effect
    of attornment on the application of an exclusive jurisdiction clause.  LBIEs
    motion raises no similar important issue.

[25]

Third, the order sought to be appealed is
    discretionary, thus warranting appellate deference.  Campbell J.s order is
    consistent with both the jurisprudence of this court and the Supreme Court of
    Canada.  The discretionary nature of the order further militates against additional
    appellate review.

[26]

For these three reasons, in my opinion, LBIEs
    leave motion has little merit.

(ii)
Irreparable harm  the effect of BTRs undertaking

[27]

LBIE argues that it will be irreparably harmed
    if a stay is not granted because it will be forced to attorn to the
    jurisdiction of the Ontario court, thus rendering its leave motion moot.  BTRs
    undertaking, however, addresses LBIEs claim of irreparable harm.

[28]

If LBIE decides to deliver a statement of
    defence, BTR will not require it to be filed with the court, will not argue
    that it amounts to an act of attornment, and will not invoke the jurisdiction
    of the Ontario court until LBIEs leave motion is decided.

[29]

LBIE contends that the undertaking is
    unsatisfactory and in support of this contention points to the decision of Lang
    J.A. in
M.J. Jones Inc. v. Kingsway General Insurance Co.
(2004), 242
    D.L.R. (4
th
) 139.  Without commenting on the correctness of that
    decision, I simply observe that the present case is distinguishable.  In
M.J.
    Jones
, Lang J.A. dealt with whether a court order requiring a defendant to
    deliver a statement of defence would amount to attornment.  She held that a
    court order requiring a defendant to participate in an action, even though
    involuntarily, might amount to attornment.  Therefore, she held that despite
    the plaintiffs undertaking not to treat the defendants participation as attornment,
    refusing a stay could cause irreparable harm.

[30]

Here, no court order or involuntary
    participation is required because BTR asks LBIE only for a statement of defence
    to permit it to move ahead with discoveries.  Furthermore, Lang J.A. appears to
    have contemplated and approved of this very scenario.  She wrote at para. 52:

This disposition does not
    necessarily preclude all parties to this action cooperating by exchanging
    documents and answering questions about the merits of the disputes between
    them.  Such exchange, if done outside the formal bounds of these court
    proceedings, would, in my view, not be considered an attornment to Ontarios
    jurisdiction.  It would simply be an efficient exchange of information that,
    with the agreement of the parties, could later be used either in the Ontario
    proceeding, or in any subsequent Michigan proceeding.

[31]

As BTR asks LBIE for documents outside of the
    formal bounds of the court proceedings, I do not consider that the delivery
    of a statement of defence or participation in discoveries, would amount to
    attornment.  If there is no attornment, the risk of LBIEs appeal becoming moot
    is eliminated. LBIE, therefore, has not made out irreparable harm.

(iii)
Balance of convenience - the effect
    of the ongoing New York         litigation

[32]

LBIE submits that the balance of convenience
    favours a stay because without one it will be prejudiced.  It argues that
    proceeding with the Ontario action while the issue of the Ontario courts
    jurisdiction has not been finally decided will result in duplication, waste the
    courts and the parties time and resources, and create a risk of inconsistent
    judgments.

[33]

Respectfully, this argument overstates any
    prejudice to LBIE from refusing a stay.  I accept that there may be some modest
    increase in costs if the litigation proceeds concurrently in New York and
    Ontario.  However, costs can be reduced by consolidating discoveries, a process
    that counsel for BTR advised would indeed be used. The risk of inconsistent judgments
    from the refusal of a stay is practically non-existent because the Supreme
    Court of Canada will likely decide LBIEs leave motion within the next three to
    four months, or at least long before the Ontario action comes to trial.

[34]

If the Supreme Court of Canada refuses leave
    then the parties will eventually have to deal with the risk of different
    results in the two jurisdictions. However, that risk arises from the existence
    of the two proceedings themselves, not from any decision on the stay motion.
    If, on the other hand, the Supreme Court of Canada grants LBIEs motion for
    leave to appeal, then LBIE would be at liberty to renew its stay motion and
    would have a compelling argument that it be granted.

[35]

However, while the leave motion is pending, the
    balance of convenience is very much against granting a stay. Tactics play a
    role here.  LBIE wants the issue of beneficial ownership decided in New York
    and thus, wants to move the New York action along while delaying the Ontario
    action.  BTR wants the issue of beneficial ownership of the publicly traded
    securities decided in Ontario, especially as it already has a decision in its
    favour on the issue of ownership in respect of the Canadian privately traded
    securities.

[36]

Whether this turns out to be a race to the swift
    is not for me to decide; however, BTR is at least entitled to be on an even
    footing.  If LBIE is proceeding on its counter-claim in New York, BTR should be
    allowed to proceed on its claim in Ontario.

[37]

The motion for a stay is dismissed.  If the
    parties cannot agree on costs, they may make brief submissions in writing.

RELEASED:  Sep. 29, 2011

JL                                                                                John
    Laskin J.A.