COURT OF APPEAL FOR ONTARIO

CITATION: Metropolitan Toronto Condominium Corporation No.
    1100 v. A. & G. Shanks Plumbing & Heating Limited, 2020 ONCA 67

DATE: 20200131

DOCKET: C64763 & C64784

Strathy C.J.O., MacPherson and Jamal JJ.A.

DOCKET:
    C64763

BETWEEN

Metropolitan Toronto
    Condominium Corporation No. 1100

Plaintiff (Appellant)

and

A.
    & G. Shanks Plumbing & Heating Limited
, 1586208 Ontario Limited,
    carrying on business as Shanks Plumbing and Heating and Addison Heating and Cooling
    Ltd.

Defendants
(
Respondent
)

DOCKET: C64784

BETWEEN

David Bruce Fingold

Plaintiff (Appellant)

and

A.
    & G. Shanks Plumbing & Heating Limited
, 1586208 Ontario Limited,
    carrying on business as Shanks Plumbing and Heating and Addison Heating and Cooling
    Ltd.

Defendants (
Respondent
)

C. Kirk Boggs and Jennifer L.
    Hunter, for the appellants Metropolitan Toronto Condominium Corporation No.
    1100 and David Bruce Fingold

Christopher I.R. Morrison,
    Joel Cormier, and Peter K. Boeckle, for the respondent

Heard: January 14, 2020

On appeal from the judgment of Justice Kenneth G. Hood of
    the Superior Court of Justice, dated December 4, 2017.

REASONS FOR DECISION

[1]

The appellants appeal the dismissal of their actions
    for damages arising out of a fire that destroyed an historic mansion, which was
    part of a condominium development in Toronto.

[2]

The fire was detected shortly after a plumber,
    employed by the respondent, had repaired a leaking pipe in the basement
    ceiling, using a blowtorch and solder. The fire originated in the ceiling, near
    the location of the plumbers work.

[3]

The appellants submit that the trial judge erred
    in failing to find that the fire was caused by the plumbers negligence. We
    dismissed the appeal with reasons to follow. These are our reasons.

Background

[4]

At the commencement of trial, counsel for the
    appellants stated that he did not propose to call expert evidence on the
    standard of care, because the plumbers conduct was egregious and obviously
    fell below the standard. This position was taken in reference to this courts
    decision in
495793 Ontario Ltd. (Central Auto Parts) v. Barclay
, 2016 ONCA 656, 132 O.R. (3d) 241, which holds that expert evidence
    is not necessary
where the impugned actions are so egregious that it is
    obvious that the defendants conduct has fallen short of the standard of care
    without even knowing precisely the parameters of the standard of care:
at para. 57. The other established circumstance in which expert
    evidence is unnecessary is where the evidence concerns nontechnical matters or
    those of which an ordinary person may be expected to have knowledge:
Barclay
, at para. 55.

[5]

Notwithstanding their decision not to adduce expert
    evidence, the appellants tendered some evidence of the standard of care by
    reference to the
National Fire Code of Canada 2005

and the
Fire Code
, O. Reg. 213/07.
    However, as the trial judge noted, there was no expert evidence that the
National
    Fire Code
formed part of the standard of care applicable
    to plumbers in Ontario in 2009, and the Ontario
Fire Code
did not include soldering as part of its Hot Works regulations at
    the time of the events.

[6]

On the issue of causation, the appellants adduced
    the evidence of two expert witnesses, who testified that the fire was caused by
    the flame of the plumbers torch coming into contact with combustible materials
    in the work area  a fairly confined space between the basement ceiling and the
    floor above, where the leaking pipe was located.

[7]

The respondent did not adduce expert evidence on
    either the standard of care or causation. However, the plumber who performed
    the work testified about the precautions he had taken:

·

before
    starting the work, he inspected the work area and found no flammable or
    combustible materials;

·

he
    knew that it was necessary to wet down the work area to prevent a fire, but did
    not do so in this case because the area was completely soaked when he got
    there, due to a fan-shaped spray from the leaking pipe;

·

he
    placed a fire extinguisher beside his ladder while he was working;

·

while
    doing the work, he pointed the flame of the blowtorch in a downward direction
    and away from the wood structures above him;

·

he
    was aware of the need to use a fire-resistant blanket to protect flammable
    areas, but did not use one in this case because it would have been impractical
    as it would not have stayed in place in the ceiling;

·

after
    completing the soldering work, he remained in the area and carried out a
    30-minute fire watch to ensure that there was no sign of fire or smoldering
    he did not notice any; and

·

before leaving the site, he went up his ladder one last time to
    check his work.

[8]

The trial judge found the plumbers evidence was
    both credible and reliable. He accepted the plumbers evidence that the work
    area was completely soaked due to the spray from the leaking pipe and that he
    did not observe any combustibles, other than the wooden structural materials,
    which were also wet from the leak. He also accepted the plumbers evidence that
    he had pointed his torch downwards while performing his work (a fact also admitted
    by the appellants in an agreed statement of facts), and that any combustibles
    were above the work and therefore above the flame of his torch. The appellants
    experts did not address how the fire could have occurred in light of the
    plumbers evidence.

[9]

On the issue of standard of care, the trial
    judge found that neither
Barclay

exception was
    applicable: soldering is a technical matter requiring expert evidence of the
    standard of care and there was nothing egregious about the plumbers conduct.
    He concluded: In my view it was incumbent upon the plaintiffs to lead expert
    evidence to establish the appropriate standard of care in order for the court
    to find that it had been breached. They did not do so and because of this their
    claim must be dismissed.

[10]

The trial judge also addressed causation,
    finding that, while the evidence was somewhat problematic, as the plumber was
    the only one working in the vicinity of the location where the fire started,
    there was no evidence that anything he did caused the fire.

[11]

On appeal, the appellants make two primary arguments: first,
    that the trial judge erred by failing to draw an inference of a breach of the
    standard of care based on the circumstantial evidence, namely, that a fire
    occurred under the plumbers watch, with no alternate explanation for how the
    fire occurred; and second, that the trial judge erred by failing to draw an
    inference of causation in light of the circumstantial evidence.

Elements of negligence

[12]

To succeed in a claim for negligence, a
    plaintiff must establish: (a) that the defendant owed them a duty of care; (b)
    that the defendants conduct breached the standard of care; (c) that they
    sustained damage; and (d) that the damage was caused, in fact and in law, by
    the defendants breach:
Mustapha v. Culligan of Canada Ltd.
, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[13]

There was obviously a duty of care in this case.
    A plumber carrying out work in a house owes a duty of care to the owner to use
    reasonable care in the performance of that work.

[14]

Nor is there any dispute that the plaintiffs
    suffered damages, although there is a live controversy about the quantum.

[15]

The real issues in this case are: (b) whether
    the defendants conduct breached the standard of care and, if so, (d) whether
    that breach caused the plaintiffs damage.

Analysis

[16]

In
Fontaine v. British Columbia (Official
    Administrator)
, [1998] 1 S.C.R. 424, the Supreme Court of
    Canada explained the proper approach to be taken by trial judges when considering
    circumstantial evidence in negligence cases. The court stated, at para. 27:

[Circumstantial] evidence is more sensibly dealt with by the
    trier of fact, who should weigh the circumstantial evidence with the direct
    evidence, if any, to determine whether the plaintiff has established on a
    balance of probabilities a
prima facie
case of negligence against the
    defendant. Once the plaintiff has done so, the defendant must present evidence
    negating that of the plaintiff or necessarily the plaintiff will succeed.

[17]

In other words, where circumstantial evidence has been adduced, the
    trial judge must consider whether that evidence gives rise to an inference, or
    a series of inferences, that support a finding of a breach of the standard of
    care or of causation. The trial judge must then weigh any such inferences along
    with any direct evidence to determine whether, on a balance of probabilities,
    the plaintiff has established a breach of the standard of care or causation.
    Where a plaintiff has done so, the defendant bears a strategic burden to present
    its own evidence to rebut the plaintiffs case. The legal burden of proof, of
    course, remains on the plaintiff throughout:
Marchuk v. Swede Creek
    Contracting Ltd.
(1998), 116 B.C.A.C. 318, at para. 10.

[18]

Where, as here, the plaintiff has done nothing
    to cause the fire, and the defendant is effectively in control of the place or
    thing that is the source of the fire, an inference of a breach of the standard
    of care, or of factual causation, or of both, may arise from the very happening
    of the fire. The defendant can rebut those inferences by adducing evidence that
    undermines the plaintiffs case, points to other non-negligent causes of the
    fire, or supports the exercise of reasonable care. The precise nature of the
    evidence required to do so will be different in every case, depending on the
    relative strength of the plaintiffs evidence in support of the finding.

[19]

In this case, the trial judge explicitly
    rejected the appellants argument that the plumbers conduct was egregious. As
    the appellants called no expert evidence to show that the plumbers precautions
    fell below the applicable standard of care, the trial judge was entitled to
    conclude that, considering all the direct and circumstantial evidence,
    including the respondents evidence, the appellants had failed to discharge
    their burden of proving a breach of the standard of care. We are not satisfied
    that he erred in that conclusion.

[20]

As the trial judge did not err on the standard
    of care issue, there is no need to address his causation analysis.

[21]

We would, therefore, dismiss the appeal. The respondents cross-appeal
    on damages is rendered moot. Costs of the appeal and cross-appeal are awarded to
    the respondents, fixed in the amount of $40,000, inclusive of disbursements and
    all applicable taxes.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M. Jamal J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Mohammad v. The Manufacturers Life Insurance
    Company, 2020 ONCA 57

DATE: 20200129

DOCKET: C67151

Simmons, Lauwers and Nordheimer JJ.A.

BETWEEN

Fadia Khalil Mohammad

Plaintiff (Respondent)

and

The Manufacturers Life
    Insurance Company

Defendant (Appellant)

Gordon Jermane, for the appellant

Michael K. Walter, for the respondent

Heard: January 23, 2020

On appeal from the judgment of Justice Shaun OBrien of
    the Superior Court of Justice dated May 31, 2019, with reasons reported at 2019
    ONSC 3386.

REASONS FOR DECISION

A.

Overview

[1]

The defendant appeals from the summary judgment granted by the motion
    judge that
determined that the plaintiff was
    entitled to payment of the death benefit for her husband, pursuant to a life
    insurance policy. For the following reasons, we allow the appeal, set aside the
    judgment below, and substitute judgment dismissing the action.

B.

Background

[2]

On April 10, 1987, the respondents husband (the deceased) completed
    an application for life insurance with a predecessor to the appellant. He
    required the life insurance in order to obtain a mortgage. On the application, the
    deceased provided a social insurance number. He also stated that he had [j]ust
    moved to Canada from Spain.

[3]

Unbeknownst to the appellant, the deceased had been convicted in Greece
    many years earlier of various offences, including manslaughter. At the time,
    the deceased was a member of a terrorist entity known as the Popular Front for
    the Liberation of Palestine (PFLP). Along with a fellow terrorist, he stormed
    an El Al civilian aircraft in 1968, throwing grenades and firing live rounds at
    the occupants. At least one person was killed.

[4]

Not long after he was convicted, the deceased was released as the result
    of a hostage negotiation that arose when other members of the PFLP stormed another
    plane and demanded his release. The deceased then moved to Lebanon. Eventually,
    in 1987, the deceased came to Canada. He did so fraudulently by using an alias.
    That is also how he obtained his social insurance number. Eventually, the
    deceaseds past activities were discovered by Canadian authorities. In 2013, the
    deceased was deported to Lebanon from Canada. He died from lung cancer in 2015.

[5]

None of the information respecting his involvement with the PFLP was
    provided by the deceased when he applied for the life insurance policy (the policy).
    The policy was issued insuring the life of the deceased. The respondent was the
    spouse of the deceased and is the sole beneficiary of the policy. The policy
    insured the deceaseds life for $75,000.

[6]

The application for the policy did not contain any questions concerning the
    deceaseds status as a citizen or permanent resident of Canada, nor did it
    contain any questions asking whether he had been convicted of any crimes. The application
    did, however, contain the following warning:

The Owner and insured agree that the meaning and importance of
    the questions in the Application have been explained and each question is fully
    understood. They declare that the statements recorded in the Application are
    true and complete to the best of their knowledge and belief, and form the basis
    of any policy which is issued. They understand that the Company requires
    complete and accurate answers in order to provide insurance and that THE
    COMPANY MAY CANCEL THE POLICY OR ANY RIDER OR DENY A CLAIM IF ANY ANSWERS ARE
    INCORRECT. [Emphasis in original.]

C.

decision below

[7]

The motion judge granted summary judgment in favour of the respondent
    awarding her payment under the policy. She found that, in providing his social
    insurance number, the deceased did not misrepresent his immigration status. The
    motion judge noted that the application form did not contain any questions that
    asked anything about the deceaseds immigration status or citizenship. She also
    concluded that the deceased had not failed to disclose all material facts in
    his application. In so concluding, the motion judge found that the appellants
    failure to ask any questions relating to immigration status or criminal history
    signaled that these issues were not material.

D.

Analysis

[8]

In our view, the motion judge made a palpable and overriding error in finding
    that the deceaseds failure to reveal his past activities did not constitute a
    failure to reveal material facts that vitiated the policy. We begin with s. 183(1)
    of the
Insurance Act
, R.S.O. 1990, c. I.8, which reads:

An applicant for insurance and a person whose life is to be
    insured shall each disclose to the insurer in the application, on a medical
    examination, if any, and in any written statements or answers furnished as
    evidence of insurability, every fact within the persons knowledge that is material
    to the insurance and is not so disclosed by the other.

[9]

The past actions of the deceased were material to the risk that he posed
    for the purpose of having his life insured. On this point, the motion judges
    reliance on the decision in
Sagl v. Chubb Insurance Company of Canada,
2009 ONCA 388, 249 O.A.C. 234, leave to appeal refused, [2009] S.C.C.A. No.
    303, is misplaced. The materiality of the unrevealed information in
Sagl
,
    a fire insurance case, is of an entirely different kind than is the case here.
    There the insurer made no inquiries about information related to the ownership
    of the property, which it knew or should have known existed, such that the
    trial judge was entitled to infer that this information was not material. Here
    there is no suggestion that the appellant ought to have known that the
    information related to the deceaseds past existed, and therefore cannot be
    faulted for not having inquired into it.

[10]

The motion judge also erred in relying on the absence of questions in
    the application form as disposing of the deceaseds obligation to reveal
    material facts. It is a principle of long standing that an applicant for
    insurance has an obligation to reveal to the insurer any information that is
    material to the application:
Carter v. Boehm
(1766), 3 Burr. 1905 (Eng.
    K.B.). This principle was stated by Morden A.C.J.O. in
Vrbancic v. London
    Life Insurance Co.
(1995), 25 O.R. (3d) 710 (C.A.), at p. 727:

The trial judge also appears to have held that simply giving
    full answers to the questions of the insurer's agent amounted to full
    disclosure. This is not necessarily so. As a general rule the fact that
    particular questions relating to the risk are put to the proposer does not
per
    se
relieve him of his independent obligation to disclose all material
    facts. [Citations omitted.]

[11]

The deceased knew that his past activities were relevant to his application
    for life insurance. Indeed, shortly after he applied for the life insurance,
    the deceased filed an affidavit in his immigration proceedings in which he said
    that his life would be in danger if he were to be deported to Israel. He was
    well aware that his past activities, coupled with his illegal entry into
    Canada, put him at serious risk of physical harm. It is clear to us that the
    deceased intentionally hid his past activities from the appellant, just as he
    hid them from the Government of Canada when he sought entry to this country.

[12]

Having concluded that there was a failure to reveal a material fact by
    the deceased, the issue is then whether that withholding was fraudulent.
    Section 184(2) of the
Insurance Act
provides that:

[W]here a contract, or an addition, increase or change referred
    to in subsection 183 (3) has been in effect for two years during the lifetime
    of the person whose life is insured, a failure to disclose or a
    misrepresentation of a fact required to be disclosed by section 183 does not,
    in the absence of fraud, render the contract voidable.

[13]

Our conclusion that the deceased intentionally withheld this information
    is sufficient to establish fraud.

E.

Conclusion

[14]

The appeal is allowed, the judgment below is set aside, and in its place,
    judgment is granted allowing the appellants motion for summary judgment and
    dismissing the action. The appellant is entitled to its costs of the appeal
    fixed in the agreed amount of $5,000 inclusive of disbursements and HST. As
    also agreed, there will not be any order as to costs of the action, including
    the motion below.

Janet Simmons J.A.

P. Lauwers J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Noguera v.
    Muskoka Condominium Corporation No. 22, 2020 ONCA 46

DATE: 20200127

DOCKET: C66412 and C66413

MacPherson, Pepall and Lauwers
    JJ.A.

DOCKET: C66412

BETWEEN

Michael Noguera and Victoria Noguera

Applicants (Respondents)

and

Muskoka Condominium
    Corporation No. 22

Respondent
    (Appellant)

DOCKET: C66413

AND BETWEEN

Muskoka Condominium Corporation
    No. 22

Applicant
    (Appellant)

and

Michael Noguera and Victoria Noguera

Respondents (Respondents)

Erik Savas, for the appellant

Megan Mackey, for the respondents

Heard: October 21, 2019

On
    appeal from the judgments of Justice Wendy Matheson of the Superior Court of
    Justice, dated December 11, 2018, with reasons reported at
2018 ONSC 7278
.

REASONS
    FOR DECISION

[1]

The Nogueras purchased Unit 210 in Muskoka
    Condominium Corporation No. 22 (the Condominium), a lakeside condominium
    development, in May 2014. In February 2016 their immediate neighbour, Don
    Mitchell, advised them that Unit 211 was to be sold. The Nogueras were
    interested in purchasing, but only if they could make an opening from their
    unit into the adjoining unit.

[2]

Before making an offer on Unit 211 and without
    committing to buy it, Mr. Noguera asked the Condominiums board of directors
    for permission to make the alterations. This request was addressed at the board
    meeting on March 25, 2016. Mr. Noguera was then a director as was Mr. Mitchell,
    the seller of Unit 211. Mr. Mitchell absented himself from the meeting but Mr.
    Noguera remained. The board approved the proposal with several conditions. Mr.
    Noguera did not vote on the proposal. We note in passing that with respect to
    Unit 211, Mr. Noguera was not an owner, and the board could have refused his
    request to consider the proposal. But it proceeded as it was entitled to do.

[3]

The minutes of the meeting were set out in the
    application judges decision at para. 9. The board imposed seven conditions on
    the approval, set out by the application judge at para. 54:

(1)

that the unit owner pay all the costs;

(2)

that the alteration not affect the use and
    enjoyment of other unit owners;

(3)

that the alteration not affect the symmetry of
    the building;

(4)

that the alteration not affect the Condominiums
    budget;

(5)

that all the necessary engineering and town
    approval be given before the work commenced;

(6)

that the wall be returned to its existing state
    if the unit owner (Mr. Noguera) was to sell one of the units and at no cost to
    the Condominium; and,

(7)

that the
    two units could never be sold as one unit.

[4]

Section 98 of the
Condominium Act, 1998
,

S.O. 1998, c.
    19

(
Condominium Act
)
required the
    Condominium to enter into and register on the title to the units an agreement
    with the Nogueras before they
made an
    addition, alteration or improvement to the common elements. Consistent with
    its long-standing past practice, the Condominium neglected to do so.

[5]

The respondent
    Nogueras provided the property manager with a copy of the plans in April 2016.
    They showed an opening on the main floor and a door on the second. The Condominium
    gave a letter to the Town on June 6, 2016, confirming the boards approval and
    stating that All conditions have been met to the [b]oards satisfaction.

[6]

Based on the boards approval, the Nogueras bought
    the adjoining unit.  They signed an offer to purchase on June 16, 2016 and the
    transaction closed in August 2016.  Renovations began in the summer of 2017 and
    were completed in early 2018.

[7]

The membership of the board of directors changed,
    and the new board sought to unravel all that had gone before regarding the two
    units owned by the Nogueras, largely on the basis that there was no s. 98
    agreement covering the alterations. The new president of the board also advised
    the Nogueras that they could not use the lakeside path based on unproven
    allegations of window peeping.

[8]

The controversy between the parties alerted the
    Condominium board to a problem. The evidence was that the Condominium had
    consistently neglected to enter into agreements required by s. 98 of the
Condominium
    Act
, from the Nogueras or from anyone
    else who had made an addition, alteration or improvement to the common
    elements.
The application judge noted, at para. 10, that [m]ost
    of the unit owners had previously made structural changes, and none had been required
    to enter into the statutorily-required s. 98 agreement.

[9]

The board decided to validate retrospectively
    the changes made by unit owners by what was termed blanket s. 98 agreements. The
    Nogueras agreed to sign a s. 98 agreement and were told that others who had
    made structural changes would sign one too. The s. 98 agreements provided to
    the affected unit owners were identical, except for the one provided to the
    Nogueras. Their s. 98 agreement, as proposed by the Condominium board contained
    the following additional language in clause 5:

The Improvements
    shall be removed by the Unit Owner, at the Unit Owner's sole expense, before
    the Unit is sold. Specifically, the Unit shall be restored to the condition
    before the Improvements were made,
including but not limited to the
    reinstallation of the common element demising wall within the Unit and any
    changes that were made by the Unit Owner related thereto
. [Emphasis added
    by application judge.]

[10]

Two board meetings were held without notice to Mr.
    Noguera even though he was a director.

[11]

The Nogueras brought an application under s. 135
    of the
Condominium Act
for an oppression remedy on the basis that they
    were targeted after their relationship with members of the new board began to
    break down: at para. 23. The indicia were described by the application judge,
    at para. 72, and signal considerable animosity on the part of some members of
    the new board towards the Nogueras, who consequently asked for the following
    relief:

(1)

that the Condominium be foreclosed from
    re-opening the approval process as it has requested in its cross-application;

(2)

that the operative s. 98 agreement be that
    proposed by the applicants;

(3)

that the applicants may use the lakeside path
    again; and,

(4)

that the
    applicants receive damages for their loss of enjoyment of their property.

[12]

In response, the Condominium sought extensive
    relief. The relief sought, which the application judge outlined at para. 75,
    included:

a cease and desist
    order regarding the structural change (even though the work has been
    completed), more plans (even though the plans were provided long ago), consent
    to obtain the Towns files (even though it confirmed to the Town that its
    conditions had been met long ago), written consent of the current Board, unit
    owner approval by two-thirds vote, its version of the s. 98 agreement, the
    right to impose more conditions and require changes at the applicants expense
    and numerous other orders.

[13]

The application judge dismissed the Condominiums
    cross-application, and granted the Nogueras oppression application, in part,
    on the following terms:

1)

This Court Declares that on March 25, 2016 the board of directors of
    the Respondent approved changes to the demising wall between suite 210 and 211
    to create two openings, one on the main floor and one of the second floor.

2)

This Court Orders that the parties are required to execute the
    Respondents requested form of section 98 agreement. The following terms must
    be added as clause no. 5:

The changes to the
    demising wall should be removed by the Unit Owner, at the Unit Owners sole
    expense, before the unit is sold. Specifically, the Unit shall be restored to
    the condition before the demising wall was altered.

3)

This Court orders that the Respondent shall pay Michael Noguera and
    Victoria Noguera $10,000 in damages for oppression.

4)

This Court orders that Michael Noguera and Victoria Noguera may
    resume use of the lake-front path.

[14]

The Condominium appeals.

[15]

We dismiss the Condominiums appeal because we
    largely agree with the application judges oppression analysis.

[16]

We begin with s. 135 of the
Condominium
    Act
, the oppression remedy provision
    found in the Act. It was introduced by the legislature in 1998 and came into
    effect in 2001. Section 135(2) and (3) provide:

(2) On an application, if the court
    determines that the conduct of an owner, a corporation, a declarant or a
    mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to
    the applicant or unfairly disregards the interests of the applicant, it may
    make an order to rectify the matter.

(3) On an application, the judge may
    make any order the judge deems proper including,

(a) an order
    prohibiting the conduct referred to in the application; and

(b) an order
    requiring the payment of compensation.

[17]

The test for
    oppression under s. 135 mirrors that for oppression in corporate law generally:
Metropolitan Toronto Condominium Corp. No.
    1272 v. Beach Development (Phase II) Corporation
, 2011 ONCA 667,
285 O.A.C. 372,
at paras. 5-6. In
BCE Inc. v. 1976 Debentureholders
, 2008 SCC 69, [2008] 3 S.C.R. 560, the Supreme Court
    described the two-part test for oppression. First the claimant must establish
    that there has been a breach of reasonable expectations and second, the conduct
    must be oppressive, unfairly prejudicial or unfairly disregard the interests of
    the claimant. The subjective expectation of the claimant is not conclusive;
    rather the question is whether the expectation is reasonable having regard to
    the facts of the specific case, the relationship at issue, and the entire
    context, including the fact that there may be conflicting claims and
    expectations:
BCE
, at
    para. 62. The availability of the oppression remedy largely turns on a factual
    analysis.

[18]

At its heart,
    the oppression remedy is equitable in nature and seeks to ensure what is just
    and equitable:
BCE
, at para. 58. In a case such as this one,
    relevant considerations include the boards statutory duties and the conduct of
    the parties.

[19]

The appellant
    Condominium submits that the application judge cited the law correctly, but she
    erred in its application. It argues that in essence, she disregarded both the
    boards duty to ensure statutory compliance and the expectations of other unit
    owners. In support of its argument, it relies on
Carleton Condominium Corporation No. 279 v. Rochon et al.
(1987), 59 O.R. (2d) 545;
Orr v. Metropolitan

Toronto Condominium
    Corporation No. 1056
,
    2011 ONSC 4876,

11
    R.P.R. (5th) 189, revd on other grounds, 2014 ONCA 855,

327 O.A.C. 228
; and
Toronto Common Element
    Condominium Corp. No. 158 v. Stasyna
,
    2012 ONSC 1504,
18 R.P.R. (5th) 15
.

[20]

We disagree
    with the Condominiums position.

[21]

As the
    application judge correctly observed, the oppression remedy is broad and
    flexible and under s. 135, the court may make any order the judge deems
    proper. She also noted that the statutory regime is a significant factor.
    Citing
Hakim v. Toronto Standard Condominium
    No. 1737
, 2012 ONSC
    404, 1 B.L.R. (5th) 159, she stated at para. 36 that [t]he court must balance
    the objectively reasonable expectations of an owner with the condominium
    boards ability to exercise judgment and secure the safety, security and
    welfare of all owners and the condominiums property assets. Having considered
    these factors, she then went on to conclude that the Condominiums conduct was
    oppressive and unfair.

[22]

The application judge, at para. 83,
    canvassed the instances of oppressive behaviour by the Condominium at some
    length:

The Condominium proceeded in breach of its
    governance obligations by holding board meetings without proper notice. The
    Condominium proceeded as if it had little or no responsibility for the
    circumstances giving rise to the disputed approval and that stance was taken
    even in oral argument before me. There is no doubt that the Condominium was
    responsible for a great deal of what happened here, most notably for an illegal
    past practice regarding s. 98 agreements that was in place before the
    applicants even became unit owners. The approach taken with these unit owners,
    as if the Condominium had little or no role in the prior events, was harsh and
    unfair. This is in stark contrast to the approach taken with other unit owners
    who had also made structural changes with now admittedly defective approvals. I
    recognize that there was a range of types of structural changes, and opening
    the demising wall had not been done before, but the s. 98 requirement applies
    to all of the changes. The Condominium treated the applicants more harshly than
    the other unit owners. Associated conduct by Board members shows targeting and
    ill will toward the applicants. Bearing everything in mind in the exercise of
    my discretion, I would foreclose the Condominiums requested orders.

[23]

She found, at para. 73, that the Condominium
    wrongly disparaged the applicants, especially [Mr. Noguera], wrongly excluded
    them from use of common elements, specifically the path, and wrongly fostered
    an atmosphere that made them uncomfortable. She made the finding, at para. 77,
    that the particular form of s. 98 agreement to which the Condominium would accede
    was abusive and unfair, and prejudicial to the Nogueras. She concluded, on
    the evidence, that the requirements of the oppression remedy under s. 135 had
    been met.

[24]

The application judges view was so strong that
    she added, at para. 81:

I have found that the 2016 approval process
    was not deficient and the Condominium is therefore not entitled to reopen or
    revisit that approval or require that the applicants restore the demising wall
    other than in connection with a sale. However, if I am wrong and there were
    defects, I would grant the applicants request that the Condominium be
    foreclosed from its requested relief of essentially restarting the approval
    process now. I would make that order under s. 135 of the Act.

[25]

These
    conclusions were available to the application judge on the basis of the
    evidence before her. The three cases relied upon by the appellant Condominium
    are quite different.
Rochon
predated the incorporation of the
    oppression remedy into the
Condominium Act
; relief from oppression was never sought
    in
Stayna
and moreover there was a total absence of any
    reasonable expectation; and in
Orr
, the application judge found no
    oppression. Quite apart from those factors, the underlying facts in these three
    cases differed significantly from those in this case.

[26]

The
    Condominium also argues that the board meeting at which the alterations were
    approved was invalid under s. 40 of the
Condominium
    Act
. The Condominium
    argues that Mr. Noguera had a conflict of interest and could not be counted in
    the quorum, as required by s. 32 of the Act. If this argument is correct, then
    the meeting at which the alteration proposal was approved lacked a quorum. Although
    Mr. Noguera was present at the meeting, he did not vote.

[27]

We agree with the application judges
    analysis of the quorum issue.
Section 40
    provides:

40 (1) A director of a corporation
    who has, directly or indirectly, an interest in a contract or transaction to
    which the corporation is a party or a proposed contract or transaction to which
    the corporation will be a party, shall disclose in writing to the corporation
    the nature and extent of the interest.

(2) Subsection
    (1) does not apply to a contract or transaction or a proposed contract or
    transaction unless both it and the directors interest in it are material.

[28]

Section 40(6)
    provides that the director shall not be present during the discussion at a
    meeting, vote or be counted in the quorum on a vote where, as noted in s.
    40(2), the interests of both the director
and the
    Condominium in the contract or transaction are material. If they are not
    material, then the director may be present and may vote.

[29]

The application judge concluded, at para. 47,
    that Mr. Noguera did not have a conflict because the proposal was not material
    to the Condominium. She viewed materiality in functional terms, and noted, at para.
    43:

The change was to
    an interior wall. It would not be used by and was not even visible to anyone
    outside of these two units. There was no financial impact on the Condominium.
    The applicants were paying for the work. The common expenses and other
    financial obligations of each of # 210 and # 211 would not be reduced or
    eliminated. There was no impact on the Condominiums insurance. I find that the
    proposed transaction was properly described in the minutes as a minor
    alteration from the standpoint of the Condominium.

[30]

The application judge rejected the Condominiums
    argument, largely based on the cost of the alteration, that the proposed
    transaction is material to it, in hindsight: at para. 42. The cost was
    initially estimated at between $6,000 and $8,000, but once the Town imposed its
    requirements that the doors in the openings be fire-rated, the cost climbed to
    about $32,000.

[31]

The application judge rejected the Condominiums
    argument that materiality should be judged on the ultimate costs that were
    incurred rather than on the initial estimate. She found, at para. 44, that in
    financial terms, it was not material to the Condominium at the time it was
    approved, and the Condominium has not established that hindsight should control
    the analysis in this case. We agree.

[32]

The Condominium does not dispute that s. 98
    could be available to the Nogueras to retrospectively validate and ratify their
    alterations. The terms required by the application judge in her order would
    comply with s. 98(2), and save harmless the Condominium.

[33]

The Condominium renewed before us the argument
    that the court has no business making an order prescribing the terms of the s.
    98 agreement. The parties should be left to negotiate the terms of the
    agreement with the Condominium retaining its complete discretion. We reject
    this argument. The application judge provided relief from oppression, a remedy
    that is broad and flexible. The application judge described in para. 83 an
    attitude on the Condominiums part that
shows
    targeting and ill will. The Condominium had provided s. 98 agreements to the
    other unit owners who had completed alterations but the one prepared for the
    Nogueras to sign was both onerous and different. It is not surprising that the
    application judge declined to give effect to the Condominiums argument. The
    evidence supporting her view is overwhelming. The application judges remedy
    served to rectify the Condominiums oppressive conduct, which seeped through
    all its actions, including its approach to this litigation. The Condominiums real
    interests were entirely protected by the s. 98 agreement ordered by the application
    judge, which simply incorporated the conditions imposed when the Board originally
    approved the Nogueras proposal.

[34]

The appeal is dismissed with costs as agreed
    payable by the Condominium to the Nogueras in the amount of $20,000,
    all-inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Piekut v. Romoli, 2020 ONCA 26

DATE: 20200116

DOCKET: C66865

Strathy C.J.O, MacPherson and Jamal JJ.A.

BETWEEN

Helen Piekut

Applicant (Respondent)

and

Krystyna Romoli
and
    Victor Wroblewski

Respondents (
Appellant
)

Romeo D'Ambrosio, for the appellant

Jonathan M. Friedman, for the respondent Helen Piekut

Paul Trudelle, for Victor Wroblewski

Heard: January 15, 2020

On appeal from the
    judgment of Justice Bernadette Dietrich of the Superior Court of Justice, dated
    March 26, 2019, with reasons reported at 2019 ONSC 1190.

REASONS FOR DECISION

[1]

Stanislaw and Jadwiga Wroblewski, a married couple, owned five
    properties in Toronto. They had three grown children  Helen, Victor and
    Krystyna. On February 2, 2001, Mr. and Mrs. Wroblewski executed a will
    providing that, upon both their deaths, their estate would be divided equally
    among their three children.

[2]

After both parents died in June and July 2008, Krystyna asserted that
    her parents had executed codicils to their wills in July 2006 providing that
    Krystyna was to inherit two of the five properties (the Dundas St.
    properties). Krystyna did not tell her siblings about these purported codicils
    until after both parents had died.

[3]

In January 2015, Helen brought an application in the Superior Court of
    Justice seeking a determination as to whether the codicils were valid. Krystyna
    brought a motion for summary judgment, seeking the dismissal of Helens claim
    on the basis that it was statute-barred pursuant to the
Limitations Act,
    2002
, S.O. 2002, c. 24, Sched. B. Helen brought a cross-motion for summary
    judgment on her application.

[4]

The motion judge decided that both Krystynas motion and Helens
    cross-motion were appropriate for summary judgment.

[5]

On Krystynas motion, the motion judge held that Helens application for
    a declaration on the validity of the codicils was not barred by the
Limitations
    Act
. Applying s. 16 (1)(a) of the
Limitations Act
, which provides
    that there is no limitation period in respect of a proceeding for a
    declaration if no consequential relief is sought, she said:

I find that Helens question with respect to the validity of
    the codicils is restricted to declaratory relief. She is not seeking
    consequential relief. She is not asking the court to determine the ultimate
    beneficiary of Dundas St. properties or to vest the properties in any
    particular beneficiary or beneficiaries.

[6]

On Helens motion, the motion judge held that the purported codicils
    were invalid. She reviewed several factors and summarized her conclusion in
    this fashion:

Taken together, I find that the evidence before the court
    cannot lead to a declaration that the codicils of each of Mr. and Mrs.
    Wroblewski and the "joint" codicil are valid. There is insufficient
    evidence to find that the codicils were executed in compliance with the
    requisite formalities as set out in the
Succession Law Reform Act.
There is no evidence, other than Krystyna's uncorroborated evidence, to confirm
    that the codicils were executed by two witnesses who were present at the same
    time as each other and at the same time as the testator and testatrix and who
    saw the latter sign the codicils. There is also no evidence to show that the
    testator and testatrix reviewed the codicils and signed them in the presence of
    the witnesses. In addition to the possible non-compliance with the requisite
    formalities, there is evidence of a probable lack of testamentary capacity on
    behalf of Mr. Wroblewski, and there are suspicious circumstances surrounding
    the preparation and execution of all codicils.

[7]

Krystyna appeals from the motion judges decision. She makes two
    submissions.

[8]

First, Krystyna submits that it was inappropriate for the motion judge
    to make a declaration about the codicils in the context of summary judgment motions.
    Rather, the context required that evidence be placed before the judge,
    presumably by testimony from various witnesses.

[9]

We disagree. Both parties brought summary judgment motions in these
    proceedings. Both filed affidavits and attached exhibits. The motion judge
    applied the test in
Hryniak v. Mauldin
, 2014 SCC 7, and found that a
    trial was not required because the court could make a fair and just
    determination of the issues.

[10]

Second, Krystynas principal argument is that the motion judge erred in
    her analysis and conclusion on the limitation period issue. She says that Helen
    acknowledged receiving the codicils on August 19, 2009. She therefore had until
    August 19, 2011 to challenge them. She did not do so; she commenced her claim
    on January 13, 2015, more than three years outside the two-year statutory
    period. In support of this position, Krystyna relies on
Leibel v. Leibel
,
    2014 ONSC 4516, and
Birtzu v. McCron
, 2017 ONSC 1420.

[11]

We do not accept this submission. Both
Leibel
and
Birtzu
are readily distinguishable from this appeal.

[12]

In
Leibel
, Greer J. acknowledged the potential application of
    s. 16(1)(a) of the
Limitations Act
, but held that it did not apply because
    the applicants had clearly sought consequential relief in addition to a
    determination of the validity of the will. This consequential relief included:
    an Order revoking the grant of the Certificate of Appointment of Estate
    Trustees with a Will; an Order removing the Estate Trustees; an Order that the
    Estate Trustees pass their accounts; an Order appointing an Estate Trustee
    During Litigation; and an Order for damages in negligence against the drafting
    solicitor and her law firm. In addition, in
Leibel
the primary will of
    the deceased had been probated.
Birtzu
had a similar fact pattern.

[13]

In contrast, in this case Helen sought none of this consequential
    relief. Nor has anyone done anything to propound the will. It sat there for
    seven years, presumably because the siblings were all trying to work out their
    disagreements. In these circumstances, Helen was entitled to seek declaratory
    relief, simply to establish the validity, or lack of validity, of the codicils
     to define the rights of the parties in order to avoid future disputes.

[14]

The appeal is dismissed. Helen is entitled to her costs of the appeal
    fixed at $12,500 inclusive of disbursements and HST.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M. Jamal J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Pierce v. Belows, 2020 ONCA 41

DATE: 20200124

DOCKET: C67065

Simmons, Lauwers and Nordheimer JJ.A.

BETWEEN

Robert
    Edward Pierce

Plaintiff (Appellant)

and

Lesley Karen Belows

Defendant (Respondent)

Lauren Tomasich, Elie Farkas and Sean Lawler, for the
    appellant

Jordan Goldblatt, for the respondent

Heard: January 21, 2020

On
    appeal from the judgment of Justice Lorne Sossin of the Superior Court of
    Justice, dated May 16, 2019, with reasons reported at 2019 ONSC 3014.

REASONS FOR DECISION

[1]

The first issue we must address is whether an agreement by the
    appellants former counsel and respondents counsel to settle this matter
    should be enforced.

[2]

On May 16, 2019 the motion judge granted summary judgment in the
    appellants favour in relation to a $12,000 loan but dismissed the bulk of his claims.

[3]

In early June 2019, the appellants former counsel and the respondents
    counsel exchanged email correspondence concerning settlement.

[4]

The appellant acknowledges that based on a review of the email
    correspondence between counsel an objective observer would conclude that this
    matter had settled on terms that included the appellant waiving his right of
    appeal from the May 16, 2019 order and forgiving the $12,000 loan plus interest
    in exchange for a waiver of costs.

[5]

Nonetheless, the appellant submits his unchallenged evidence establishes
    he never intended to make a binding offer to settle. Relying on this courts
    decision in
Milios v. Zagas
(1998), 38 O.R. (3d) 218 (C.A.), he submits
    that, in these circumstances, several factors support this court exercising its
    discretion not to enforce the settlement. These factors include: the short time
     mere hours  that elapsed between the settlement and his former counsels
    repudiation of the settlement, thus leaving the parties pre-settlement
    positions intact; apart from losing the benefit of the settlement, the absence
    of prejudice to the respondent if the settlement is not enforced; the relative
    prejudice to the appellant in losing his right of appeal; and the fact that no
    third parties will be affected if the settlement is not enforced.

[6]

We do not accept the appellants argument. As a starting point,
Milios
is distinguishable from this case. In
Milios
, this court acknowledged
    the well-established pre-rule 49 principle from
Scherer v. Paletta
,
    [1966] 2 O.R. 524 (C.A.), that a solicitor whose retainer is established may
    bind his client to a settlement unless the client had limited the solicitors
    authority and the limitation was known to the opposing side.
[1]
However, at para. 16 of
Milios
, this court held the facts of that case (
Milios
)
    involved a mistake, not a limitation of authority. Following consideration of
    the whole of the underlying circumstances, this court exercised its discretion
    not to enforce the settlement.

[7]

Unlike
Milios
, this is not a rule 49 case. Further, the facts of
    this case are very different from the facts in
Milios
. In
Milios
the clients wife advised counsel her husband was away but had told her to go
    ahead with the settlement. Acting on these instructions, counsel accepted an
    offer made by the opposing side. On his return, the client clarified he told
    his wife to go ahead with his (the clients) previous settlement offer, not the
    offer from the other side.

[8]

In this case, the appellant acknowledges instructing his former counsel to
    open negotiations with [the respondents] lawyer about settling the dispute.
    However, he asserts he did not authorize his former counsel to make an offer to
    settle. Unlike
Milios
, this is not an assertion of a mistake. Rather, it
    is an assertion that counsels authority was limited and did not extend to
    making an offer to settle.

[9]

Although this court retains discretion not to enforce a settlement, the
    facts of this case do not compel that result. The appellants former counsel
    was retained, had authority to  and was instructed to  engage in settlement
    negotiations. No limitation on his authority was communicated to the
    respondent. Declining enforcement in the circumstances of this case could undermine
    the certainty that is essential to encouraging meaningful settlement
    negotiations between counsel.

[10]

Given our conclusion that the settlement should be enforced, we
    decline to address the issues raised by the appellant, but in doing so we are
    not to be taken as necessarily agreeing with the motion judges reasons.

[11]

The appeal is allowed, the order below is set aside and in its place an
    order in accordance with the settlement is substituted. In all the
    circumstances, we make no order as to the costs of the appeal or of the motion
    below.

Janet Simmons J.A.

P. Lauwers J.A.

I.V.B. Nordheimer
    J.A.

[1]

Scherer
was pre-rule 49 but  consistent with rule 49  acknowledged the
    discretionary power of the court to inquire into the circumstances of a
    settlement and decide whether or not to enforce it.


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), (2.1), (2.2), (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 victim 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, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more offences being
    dealt with in the same proceeding, at least one of which is an offence referred
    to in paragraph (a).

(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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22,48; 2015, c. 13, s. 18..

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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.V., 2020 ONCA 58

DATE: 20200129

DOCKET: C64964

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.V.

Appellant

Anthony Moustacalis, for the appellant

Adam Wheeler, for the respondent

Heard: January 9, 2020

On appeal from the conviction entered on October 19, 2017
    and the sentence imposed on February 9, 2018 by Justice Grant R. Dow of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual interference, sexual exploitation,
    and sexual assault against the complainant, his stepdaughter. The complainant
    alleged that, over a period of several years beginning when she was in grade
    six or seven, the appellant required her to massage and crack his back. This
    occurred while the appellant lay on his bed. The complainant testified that the
    appellant touched her thighs and vagina once her brother left the room.

[2]

The offences were alleged to have occurred while the complainants
    mother was at work. The complainant alleged that on one occasion, the appellant
    applied lotion to her legs and licked her vagina. She also alleged that the
    appellant touched her vagina through her jeans as they were watching a movie in
    a hotel room, while the complainants mother was taking a shower.

[3]

The appellant informed the court that his request for leave to appeal
    sentence was abandoned.

[4]

The appellant raised several grounds of appeal against conviction in his
    factum, but focused on two issues at the hearing. The appellant says that the trial
    judge erred in admitting prior consistent statements and erred in relying on
    those statements for the proof of their contents.

[5]

We have concluded that the prior consistent statements were properly
    admitted. However, as we will explain, we accept the appellants argument that
    the trial judge erred in relying on the prior consistent statements as proof
    the offences occurred.

[6]

Accordingly, the appeal is allowed for the following reasons.

Prior consistent statements were admitted properly

[7]

The trial judge admitted evidence from a childhood friend of the
    complainant who testified that, when they were in grade six or seven, the complainant
    had told her that the appellant had come into her bedroom and assaulted her,
    and that they had discussed it a number of times after that. The complainants
    high school boyfriend testified that around 2012, while they were watching a movie
    that concerned sexual abuse, the complainant told him that the appellant had
    abused her.

[8]

The appellant says that there was no allegation of recent fabrication
    that justified the admission of this evidence.

[9]

We disagree.

[10]

It is clear that trial counsel for the appellant put the question of
    recent fabrication in play in the course of cross-examining the complainant. In
    particular, he suggested that she had made up the allegations because she was
    upset with certain events in her home life; that she was saying nasty things
    about the appellant because it was a way of getting back at the appellant and
    her mother; and that she got the idea to make allegations against the appellant
    from watching a movie with her boyfriend.

[11]

As a result, it was open to the trial judge to use the complainants
    prior consistent statements to address the recent fabrication allegation and
    the suggestion that the complainant had a motive to lie about the appellant.

[12]

The evidence of the complainants childhood friend was inconsistent with
    the complainants, in that the friend said that the complainant told her the
    abuse occurred in her bedroom rather than in the appellants bedroom, but the
    trial judge explained why he considered this a minor detail. This was the trial
    judges call to make, and there is no basis to interfere with it on appeal.
    Although the childhood friend testified that the complainant spoke of a single
    incident rather than multiple incidents, as alleged by the complainant, her evidence
    was called in order to rebut the recent fabrication/motive to lie allegation,
    rather than to corroborate the complainants evidence. No further analysis was
    required.

The
W.(D.)
analysis

[13]

The appellant argues that the trial judge erred in his
W.(D.)

analysis by relying on the prior consistent statements for their truth in
    corroborating the complainants evidence.

[14]

We agree, and allow the appeal on this basis.

[15]

The trial judge properly instructed himself as to the requirements from
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742,
and provided reasons for rejecting the evidence of the appellant and for
    finding that the appellants evidence did not raise a reasonable doubt. He recognized
    that his rejection of the appellants evidence was insufficient to establish
    guilt beyond a reasonable doubt and went on to consider the evidence as a
    whole.

[16]

This case turned on credibility. The trial judge was entitled to use the
    evidence of the complainants prior consistent statements to rehabilitate her
    credibility, given the motives to lie and recent fabrications that trial
    counsel attributed to her. But once this was done, the trial judge had to
    determine that her evidence was credible without relying on the prior
    consistent statements for proof of their contents to corroborate the
    complainants evidence.

[17]

The key passage in the decision is this:

Counsel for [the appellant] also submitted to me that disbelief
    of the accuseds evidence does not satisfy the burden of proof beyond a
    reasonable doubt. Again, I entirely agree. However, the vast majority of sexual
    assault prosecutions turn on the evidence of the two witnesses involved in the
    conduct alleged.
Here there is not only evidence of [the
    complainant] about what occurred, but that she revealed it to a senior
    elementary school friend, her first boyfriend, her aunt, and her mother before
    going to the police. This reinforces my being satisfied beyond a reasonable
    doubt of the sexual contact and of the elements of the offences charged having
    occurred
.

[Emphasis added.]

[18]

The Crown submits that this passage must be read in light of the
    totality of the evidence and the rest of the trial judges analysis. The Crown
    says that the
W.(D.)
analysis was complete when the judge made these
    statements and the only issue remaining was whether the complainants evidence
    was credible or a fabrication. The trial judge had earlier concluded that the
    complainants evidence was reliable. According to the Crown, the trial judge
    used the prior consistent statements to neutralize the allegation of recent
    fabrication, allowing him to find that the complainants evidence was credible
    and so conclude that the appellants guilt had been established beyond a
    reasonable doubt.

[19]

The difficulty with this analysis is that the trial judges reasons say
    otherwise. The trial judge specifically states that the complainants having
    revealed the abuse to several people  her friend, her boyfriend, her aunt, and
    her mother  reinforces my being satisfied beyond a reasonable doubt.

[20]

This statement cannot fairly be read as limited to the rehabilitative
    effect of the prior consistent statements on the complainants credibility  a proper
    use to which the statements could have been put. The trial judge does not refer
    to the complainants alleged motive to lie or the recent fabrication allegation
    in discussing the prior consistent statements. Instead, after having said that
    most cases turn on the evidence of the two witnesses involved in the conduct
    alleged, the trial judge refers to the statements as reinforcing his conclusion
    that the offences occurred. In other words, the trial judge considered that
    this case was unusual in that there was evidence beyond that of the complainant
    and the appellant on which he could base his decision. This statement shows
    that, in determining whether the offences were proven beyond a reasonable
    doubt, the trial judge relied on the complainants prior consistent statements
    for the truth of their contents, to corroborate the complainants evidence.
    That is an impermissible use of the statements, as
R. v. Dinardo
, 2008
    SCC 24, [2008] 1 S.C.R. 788 at para. 36 makes clear. See also
R. v. J.A.T.
,
2012 ONCA
    177, 290 O.A.C. 130, at paras. 97-100.

[21]

Accordingly, the appeal is allowed and a new trial is ordered on all
    counts.

G. Pardu J.A.

David Brown J.A.

Grant Huscroft J.A.


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), (2.1),
    (2.2), (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 victim 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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, 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);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18.

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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.D., 2020 ONCA 50

DATE: 20200127

DOCKET: C66604

Gillese, Rouleau and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.D.

Appellant

J. Scott Cowan, for the appellant

Charmaine Wong, for the respondent

Heard and released orally: January 16, 2020

On appeal
    from the conviction entered on November 29, 2018 by Justice Joseph M.W. Donohue
    of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for
    sexual assault. He advances only one ground of appeal.

[2]

The appellant argues that the trial judge erred
    in admitting a statement he made to the police. Specifically, he submits that,
    on a proper reading of the statement, it is apparent that he had invoked his
    right to counsel and the interviewing officer did not facilitate the exercise
    of that right.

[3]

We reject this ground of appeal.

[4]

The appellant acknowledges that the
    informational component under s. 10(b) of the
Canadian Charter of
    Rights and Freedoms
was properly met. The sole issue is whether the implementational
    component was fulfilled.

[5]

The appellant sought to exclude his videotaped
    interview by police. The trial judge reviewed and considered the transcript and
    video of the exchange between the appellant and the interrogating officer. As
    well, the interrogating officer testified on the
voir dire
. The trial
    judge concluded on a balance of probabilities that, despite being aware of his
    right to counsel, the appellant had not expressed a desire to consult counsel. This
    determination is a finding of fact which, absent palpable and overriding errors,
    is entitled to deference.

[6]

The exchange relied on by the appellant is about
    two thirds into a 94- page-long transcribed statement. The critical exchange is
    as follows:

APPELLANT: can I call a lawyer then because
    like

OFFICER: you can call a lawyer

APPELLANT: no no I dont think Im guilty
    thats the issue and you keep pressuring me more into it

OFFICER: Im not okay

APPELLANT: no no

OFFICER: Im not pressure you

[7]

The appellant submits that this constitutes an
    equivocal request to consult a lawyer and that the police were obliged to stop
    the interview at this point and facilitate the request.

[8]

The statement has to be viewed in context, which
    context includes the officer repeatedly reminding the appellant of his right to
    counsel, including virtually immediately following the above exchange where the
    officer stated:

anytime you wanna to talk to a lawyer you
    can like thats not a problem I havent got a problem with that thing is I have
    to stop the interview and put you into a private room so you can do that but at
    any time you can do that.

[9]

The trial judge reviewed the entire video
    statement and heard the evidence from the officer. The trial judge applied the
    proper legal principles and based on the whole of the evidence, he found that
    there had not been an invocation of his right to consult a lawyer. This was a
    finding open to him and we find no error in it.

[10]

For these reasons, the appeal is dismissed.

Eileen
    E. Gillese J.A.

Paul
    Rouleau J.A.

Fairburn
    J.A.