COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Biddersingh, 2022 ONCA 6

DATE: 20220110

DOCKET: C63052 & C63064

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

DOCKET: C63052

BETWEEN

Her Majesty the Queen

Appellant

and

Elaine Biddersingh

Respondent

DOCKET: C63064

AND BETWEEN

Her Majesty the Queen

Respondent

and

Elaine Biddersingh

Appellant

Alexander Alvaro, for the appellant
    (C63052) and respondent (C63064)

Paula A. Rochman,
amicus
, for
    the respondent (C63052) and appellant (C63064)

Heard: November 25, 2021

On appeal from the conviction entered on
    June 20, 2016, by Justice Ian A. MacDonnell of the Superior Court of Justice,
    sitting with a jury.

Hourigan
    J.A.:

Part I: Overview

[1]

In 1991, Melonie Biddersingh came to Canada as a
    13-year-old with her brother, 12-year-old Dwayne, and stepbrother, 17-year-old
    Cleon. She left Jamaica to live with her father, Everton Biddersingh, and her
    stepmother, the appellant, in hope of a better life with more opportunities. Instead,
    from the moment she arrived in Canada she endured horrendous abuse.

[2]

On September 1, 1994, a York Regional Police
    officer discovered a fire burning beside a garbage bin in an industrial area of
    Vaughan. After the fire department was called to extinguish the blaze, the body
    of what appeared to be a child, or a small adult was located in the ashes
    inside the remnants of a suitcase. A forensic pathologist determined that the
    body was that of a severely malnourished female with 21 fractures and a broken
    pelvis, and that the cause of death or a major contributing factor was
    drowning. Unfortunately, at the time, the police were unable to identify the
    victim. As a result, the case remained unsolved for almost two decades. The
    body was later positively identified as Melonie.
[1]

[3]

In December 2011, the appellant disclosed to her
    church pastor the circumstances of Melonies death. She advised that her
    husband had abused Melonie and that her dead body had been put into a suitcase.
    The appellant admitted that she, Cleon, and Everton had been involved in the
    disposal of Melonies remains. In addition, the appellant disclosed details of
    Everton abusing her, both around the time of Melonie's death and at the time of
    the discussion. The pastor then provided this information to the Niagara
    Regional Police. As a result, the appellant was eventually interviewed by the Toronto
    police on January 23, 2012, at which point she provided information about the
    circumstances of Melonie's death and her own safety concerns with respect to
    Everton.

[4]

On March 5, 2012, Toronto police charged Everton
    and the appellant with
failing to provide the
    necessaries of life (two counts), criminal negligence causing bodily harm, aggravated
    assault, forcible confinement, and offering an indignity to a dead human body
    all in relation to their alleged mistreatment of Melonie. They were
    subsequently charged with first degree murder.

[5]

The two accused were tried separately, with
    Everton's trial proceeding first. The appellant was called as a witness. Prior
    to the commencement of Everton's trial, the appellant unsuccessfully applied
    for an order temporarily banning publication of her evidence and the evidence
    of other witnesses as to what she was alleged to have said or done. The
    appellant testified at Everton's trial over a period of four days. The position
    of Everton's counsel was that she was responsible for Melonie's mistreatment
    and death.

[6]

The trial received extensive negative media
    coverage. On January 7, 2016, Everton was found guilty of first degree murder.
    Subsequent media coverage outlined some of the evidence that had been ruled
    inadmissible at trial, including information detailing Dwayne's suspicious
    death in 1992.

[7]

The appellants trial for first degree murder
    arising from Melonies death began on April 11, 2016.
Before
    the trial, defence counsel contacted Crown counsel and sought its consent to
    proceed without a jury, as required under s. 473(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, in light of the negative publicity surrounding
    Elaine's evidence at Everton's trial. The Crown refused to consent to proceed
    without a jury.

[8]

Defence counsel then brought an application to
    permit the appellant to be tried without a jury based on negative pretrial
    publicity, pointing to several media articles in relation to evidence adduced
    and not adduced before the jury in Everton's trial. She also relied on the
    results of a public opinion survey her counsel had commissioned regarding her
    case.

[9]

The trial judge dismissed the defences
    application and the jury convicted the appellant of second degree murder. On
    her conviction appeal, with the assistance of
amicus
, the appellant
    raises the following grounds of appeal:

1.

The trial judge erred in dismissing the
    defence's application for a judge alone trial based on negative pretrial
    publicity and juror partiality.

2.

The trial judge erred in ruling that certain
    statements made by the appellant were admissible because she was not a suspect
    at the time they were made, and in ruling that the police did not mislead her
    about her legal jeopardy.

3.

The trial judge erred in refusing to instruct
    the jury on the intervening act of drowning.

[10]

The Crown cross-appeals
against
    the appellants acquittal for first degree murder only if the appellant
    succeeds on her appeal from her conviction for second degree murder. The Crown
    raises only one ground of appeal: the trial judge erred in law by limiting the
    route to first degree murder to death caused by drowning.

[11]

For the reasons that follow, I would dismiss the
    appeal. Given this result, it is unnecessary to consider the Crowns
    cross-appeal. In summary, I conclude as follows:

·

The trial judge was correct in finding that the
    appellant did not meet her heavy onus of establishing why the Attorney
    General's consent to a trial by judge alone should be dispensed with in the circumstances
    of this case. He properly considered the evidence and the general protections
    in place to ensure fair jury trials.

·

Regarding the impugned statements, even if the
    trial judges voluntariness analysis was flawed, there was no prejudice to the
    appellant. The impugned statements were not introduced into evidence, and the
    trial judges admissibility decision could not have realistically played a role
    in her decision not to testify.

·

Finally, in the circumstances of this case, the
    trial judge correctly instructed the jury that to be a cause of death, an act
    or omission by the appellant must be a significant contributing cause. Given
    this instruction, there was no need for an intervening act instruction.

Part II: Analysis

(1)

Jury Trial

(a)

The Issue

[12]

The appellant brought an application to dispense
    with the Attorney Generals consent for a trial by judge alone on the basis
    that her right to a fair trial under s. 11(d) of the
Canadian Charter
    of Rights and Freedoms
would be compromised if a judge and jury tried her.
    In making this submission, she pointed to the negative pretrial publicity about
    her evidence at Everton's trial and the evidence that came out after the trial
    regarding Dwayne's death in 1992 that resulted from a fall from the balcony of
    the familys apartment. She also relied on a public opinion poll regarding her
    case, arguing that it showed that she could not impanel an impartial jury.

[13]

The trial judge found that the polling evidence
    filed by the appellant did not support the suggestion that it would be impossible
    to find 12 impartial jurors. Further, he determined that, contrary to the
    submissions of defence counsel, the questions to prospective jurors could be
    devised in a way that would not reveal prejudicial information. The trial judge
    also noted that the possibility of prejudicial details coming to the jury's
    attention after they have been selected could be mitigated by the usual
    safeguards, including instructions to the jury to refrain from attempting to
    find information about the case.

[14]

On appeal, the appellant does not argue that the
    Crowns conduct in refusing to consent to a judge alone trial amounts to an
    abuse of process. Instead, she submits that her right to a fair trial has been
    violated. Specifically, she argues that there was a sufficient evidentiary
    basis for the order sought. According to the appellant, the trial judge erred
    in law by setting the test for an order for a judge alone trial at a level that
    is impossible to meet.

(b)

The Law

[15]

There is no dispute between the parties
    regarding the relevant process and test on an application for a judge alone
    trial pursuant to s. 473(1) of the
Criminal Code
. An accused
    charged with murder must be tried by judge and jury unless the accused and the
    Attorney General consent to a trial by judge alone. Where the Attorney General
    does not consent, the accused can bring an application for an order for a judge
    alone trial.

[16]

The test on such an application is difficult to
    meet. It was described this way in
R. v. Khan
, 2007 ONCA 779, 230
    O.A.C. 174, at paras. 13 to 16:

In s. 473(1) of the
Criminal Code
,
    Parliament has made its intention clear that a person charged with murder, the
    most serious crime in the
Criminal Code
, is to be tried by a court
    composed of a judge and jury absent the consent of both parties. While this
    provision can be overridden in order to ensure an accuseds right to a fair
    trial, it should not be interfered with lightly.

In our view, this courts decision in
R.
    v. Henderson
(2001),145 O.A.C. 150, is dispositive of this ground of
    appeal.
Henderson
makes it clear that an accused seeking a judge alone
    trial in these circumstances must, at a minimum, meet the test required for a
    change of venue  a test the appellants concede is more stringent than the one
    they propose. On our view of the record, the appellants fall well short of
    meeting that test. We are satisfied that their right to a fair trial was
    adequately protected through well-established procedures, including extensive
    screening of prospective jurors and challenges for cause.

As
Henderson
provides a full answer
    to this ground of appeal, we find it unnecessary to finally determine the test
    that should be applied when an accused seeks to dispense with the mandatory
    requirement of trial by jury under s. 473(1). That said, we are inclined to the
    view that absent consent from the Crown, in order to avoid the requirement of
    trial by jury under s. 473(1), an accused must show that, on balance, the
    time-honoured statutory and common law procedures designed to preserve and
    protect the right of every accused to a fair trial by an impartial tribunal are
    insufficient in the particular circumstances of his or her case.

Whatever the precise test, it will not be an
    easy one to meet. That accords with our view that s. 473(1) should only be
    overridden in the clearest of cases. The test proposed by the appellants falls
    well short of the mark. If adopted, it would effectively eviscerate s. 473(1).

[17]

Based on the foregoing, the issue is whether the
    trial judge erred in finding that the appellant had not met her onus of
    establishing that this is one of the clearest of cases where s. 473(1) should
    be overridden.

(c)

The Appellants Position

[18]

The appellant submits that the publicity
    surrounding Evertons trial was widespread. In support of that submission, she
    notes that during the course of the trial a juror referenced the death of
    Dwayne in a conversation with another juror. The appellant concedes, however,
    that the juror receiving the information brought it to the trial judge's
    attention and was discharged, as was the juror who conveyed the information,
    albeit for other reasons. The argument regarding these jurors is not raised as
    an independent ground of appeal. In my view, it is unfair and unhelpful to
    consider what a juror might have said during the trial in assessing the trial
    judge's decision regarding the application for a judge alone trial made before
    the trial. I do not consider that information relevant in determining whether
    the trial judge erred in refusing the application.

[19]

As noted, the appellant's principal argument
    relates to the sufficiency of the evidence she adduced on the application. She
    filed affidavits that affixed copies of articles written about her. In
    addition, she relied on the results of a public opinion telephone survey
    conducted by Forum Research. Dr. Lorne Bozinoff, the President and CEO of Forum
    Research, also testified on the application to explain the survey results. Given
    problems with Dr. Bozinoff's testimony, the appellant did not rely on his
    expert evidence and instead relied solely on the raw data generated by the
    survey.

[20]

The appellant focuses on a series of questions
    designed to determine whether the respondents would be prepared to discharge
    their duties faithfully and properly. The appellants view of the data is that
    an inference could be drawn that some jurors would not follow a judges
    instruction not to seek or receive outside information, that some jurors would
    engage in their own Internet research about the case and obtain inadmissible
    information, and that some who received that information would not be able to
    disabuse themselves of it when performing their duties.

[21]

The trial judge rejected that argument, at para.
    41 of his ruling, on the basis that it "is founded on an assumption that
    members of a real jury in a real trial will behave in the same way as random
    members of the public taking a telephone survey." He observed that even
    though the survey respondents were asked to assume that a judge had instructed
    them not to research any details on the case, they were not asked to assume
    that a Superior Court judge explained to them the importance of the
    instruction, how it could lead to a miscarriage of justice if they did not
    follow the instruction, and that they had taken an oath or made a solemn
    declaration to decide the case solely on the evidence led at trial. Further, the
    trial judge relied on
R. v. Find
, 2001 SCC 32, [2001] 1 S.C.R. 863,
    for the proposition that trial processes are effective in cleansing jurors of
    influence from emotion, prejudice, or preconception.

[22]

The appellant argues that the error in the trial
    judge's analysis is that if a court can always fall back on the general court
    process to protect the interests of the accused to a fair trial, then an order
    for a judge alone trial under s. 473(1) of the
Criminal Code
will
    never be granted. In other words, the bar has been set too high.

(d)

Discussion

[23]

I would not give effect to this ground of appeal.
    I accept that the impugned part of the trial judges analysis regarding the
    safeguards in the criminal jury system could apply in any case. However, in my
    view, this part of his analysis was directly responsive to the inferences that
    the appellant was drawing from the survey data. She put forward the rather
    general argument that there is a chance that jurors would not abide by a trial
    judges instructions and might conduct their own research. Of course, the same
    argument could be made in any case. The trial judge quite correctly responded
    to that submission by observing that the safeguards developed over the
    centuries have evolved to protect against those possibilities.

[24]

Second, the trial judge's analysis was not
    limited to the general safeguards in the trial process. He considered the
    circumstances of this case. For example, he noted that the survey results
    showed that when asked whether they had heard or seen anything in media or the
    Internet regarding "the death of Melonie Biddersingh [whose] body was
    found in [a] burning suitcase in 1994 [and whose] remains weren't identified
    until 2012 when her father and stepmother were charged with murder," 46%
    of respondents answered no. In addition, he pointed to the result that 74% of
    respondents had not heard or seen anything about the appellant. The trial judge
    also placed the coverage of Everton's trial in context, noting that at the time
    of the trial, there was another high profile case in the news that involved the
    shooting by a police officer of a member of the public on a streetcar.

[25]

In my view, the trial judge properly considered
    the evidence and the general protections in place to ensure fair jury trials
    and reached a decision that was free from error. Consequently, I would not give
    effect to this ground of appeal.

(2)

The Appellants Statements

[26]

The Crown brought a pretrial application for an
    order that various statements made by the appellant to the police were
    admissible for the purposes of cross-examining her if she chose to testify. At
    issue on this ground of appeal is the trial judge's ruling regarding two of the
    appellant's statements. The first statement was made on January 23, 2012, to
    Detective Sergeant Steve Ryan of the Toronto Police Service in the course of an
    interview at the office of the Homicide Squad. The second statement was made on
    March 5, 2012, to Detective Sergeant Ryan in the course of an interview at 52
    Division following her arrest.

[27]

Detective Sergeant Ryan testified on the
voir
    dire
. The defence called no evidence. The trial judge found that, at the
    time of the January 23, 2012 statements made to Detective Sergeant Ryan, a
    reasonably competent investigator would have considered the appellant to be a
    witness and not a suspect because the investigation was focused on the
    mistreatment of Melonie and potentially the appellant, and not neglect or
    inadequate parenting on the appellants part. As a result, the confessions rule
    did not apply and the statement could be used for the purposes of
    cross-examination.

[28]

In the alternative, the trial judge concluded
    that even if the appellant was a suspect, her statements were nevertheless
    voluntary. He noted that the statement was videotaped and affirmed and that the
    officer provided the appellant with the primary and secondary caution. The
    officer instructed the appellant regarding her right to counsel and gave her
    the opportunity to speak to a lawyer when she asked. Further, he told the
    appellant that she could be charged with offences including homicide and warned
    her of the penalties for lying under oath. All of these steps were consistent
    with what she would have been told had she been arrested and charged, except
    that she was informed that she could leave at any time. Thus, the trial judge
    found that the cautions and warnings given by the officer were more than
    sufficient to advise the appellant of her right to remain silent. He also held
    that there was no evidence that Detective Sergeant Ryan misled her.

[29]

In addition, the trial judge found that the
    statement made to Detective Sergeant Ryan after the appellant's arrest during
    the police interview on March 5, 2012 was voluntary as it was not tainted by references
    to the January 23, 2012 statement.

[30]

Neither of the statements were tendered in
    evidence at trial, as the appellant elected not to testify.

[31]

The appellant submits that the trial judge made
    three errors in his analysis. First, she argues that he erred in finding that she
    was not a suspect but a witness at the time of her January 23, 2012 statement.
    Second, the trial judge is said to have erred in finding that Detective
    Sergeant Ryan did not mislead her by providing incorrect legal advice regarding
    her potential jeopardy if she had done nothing to stop the abuse of Melonie.
    Finally, the appellant submits that her March 5, 2012 statement should also
    have been ruled inadmissible because it was tainted by references to her
    January 23, 2012 statement.

[32]

In support of her submission, the appellant
    seeks to adduce fresh evidence on this appeal. The proffered evidence is a CTV
    news article published on September 10, 2021, in which former Detective
    Sergeant Ryan  now CP24's Crime Analyst  discussed taking a statement from
    the appellant and his reaction to her interview. The story was based on a
    podcast on which the officer appeared. The appellant maintains that the parts
    of the article demonstrate that Detective Sergeant Ryan misled the court when
    he testified that he did not believe the appellant to be a suspect.

[33]

I am not persuaded that the appellant suffered
    any prejudice as a consequence of the trial judges voluntariness ruling.
The
    impugned statements were not introduced into evidence, and the trial judges
    admissibility decision could not realistically have played any role in her
    decision not to testify, given that she had conceded the voluntariness of two
    other statements and would be facing her testimony from Everetts trial. Further,
    there is nothing in the impugned interviews that could realistically have
    altered her testimony.

[34]

Given my conclusion that the appellant could
    have suffered no prejudice from the trial judges admissibility ruling, it is
    unnecessary to consider the fresh evidence application. For these reasons, I
    would dismiss this ground of appeal.

(3)

Intervening Act

[35]

The appellant submits
    that the trial judge erred in failing to instruct the jury on the intervening
    act of drowning in the context of culpable homicide. The defence requested this
    instruction in the pre-charge conference. Specifically, it sought an
    instruction that the jury should consider whether the drowning was an
    intervening act. The request
for an
    intervening act instruction arose from the theory that Everett may have drowned
    Melonie on his own, which, if true, could have been an intervening act that broke
    the chain of causation
.

[36]

The trial judge
    rejected that request.
Instead, he repeatedly
    instructed the jury that
the
    appellants conduct had to make a significant contribution to Melonies death
    t
o be guilty of culpable homicide. He
    charged the jury as follows:

[335] Proof that Elaine Biddersinghs failure
    to intervene to protect Melonie was an unlawful act is not sufficient to make
    her guilty of culpable homicide unless it was a cause of Melonie's death. As I
    have said, to be a cause of death, an act or omission must be a significant
    contributing cause. It is for you to say whether the defendants failure to
    intervene played a significant role in permitting a course of conduct that led
    to Melonie's death by drowning to continue. If you have a reasonable doubt concerning
    whether it played a significant role, then her failure to intervene will not
    make her guilty of culpable homicide.

[336] As I have said, one of the essential
    elements that must be proved to make a failure to perform the legal duty to
    protect Melonie from harm an unlawful act is the objective foreseeability of
    endangerment of Melonie's life or the risk of permanent injury to her. Objective
    foreseeability does not require that the specific mechanism of harm that was
    ultimately inflicted on Melonie, drowning, have been foreseeable... What is
    required, rather, is that a reasonable person would have foreseen that the
    failure to protect Melonie from the ongoing course of assaultive behaviour
    would lead to some further assaultive behaviour that would endanger her life or
    create a risk of permanent injury. Accordingly, if you are satisfied beyond a
    reasonable doubt that Elaine failed to intervene of protect Melonie, in
    circumstances that make her failure an unlawful act, that that unlawful act
    made a significant contribution to Melonie's death, and that it was objectively
    foreseeable that a failure to intervene would expose Melonie to a danger to her
    life or the risk of permanent injury, she is guilty of culpable homicide.

[37]

I am not persuaded that
    the trial judge erred in declining to give the intervening act instruction. His
    significant contribution instruction was entirely consistent with the decision
    of the Supreme Court in
R. v. Maybin
,
2012 SCC 24, [2012]
    2 S.C.R. 30, at para. 38.

[38]

In
my view, given the factual circumstances of this
    case, the significant contribution instruction made an intervening cause
    direction unnecessary. This can be seen by looking at the material factual
    scenarios if Melonie drowned:

·

Scenario 1: The appellant caused the drowning
    death of Melonie by actively participating in the drowning as a principal. No
    intervening act is possible, and no direction is required.

·

Scenario 2: The appellant aided or abetted
    Everett by encouraging him to drown Melonie or by assisting the drowning in
    some way short of direct participation, with the intention of assisting him. If
    she intentionally aided or abetted the very act, no intervening act is
    possible, and no direction is required.

·

Scenario 3: The appellant failed to fulfil her
    duty to protect Melonie from Everetts abuse in circumstances where it was
    reasonably foreseeable that Everett would kill Melonie. For there to be
    causation, the jury would be required to conclude that the appellants failure
    to act was a significant contributing cause to Melonies death. The trial judge
    not only repeatedly told the jury in general terms that to convict the
    appellant, they had to find that she had to make a significant contribution to
    Melonie's death, but also directed the jury specifically on this theory of
    guilt, telling them that they had to find that the appellants failure to
    discharge her duty by intervening had to play a significant role in permitting
    the course of conduct that led to Melonies death. On that scenario, there is
    no possibility of an intervening act.

·

Scenario 4: Everett drowned Melonie on his own,
    without the appellants participation, either unforeseeably or without the
    appellant having failed to discharge her duty. This would be an intervening act
    on Everett's part, but if the jury had a reasonable doubt that this may have
    happened, the judge's direction that to be guilty, the appellant had to make a
    significant contribution to Melonie's death, would have prevented her
    conviction.

[39]

Based on the preceding analysis, I
    am of the view that the trial judge did not err in failing to give the
    requested intervening act instruction. On the contrary,
the jury had a functional understanding of their
    obligations as a consequence of the significant contribution instruction.
    Therefore, I would dismiss this ground of appeal.

Part III: Disposition

[40]

I would dismiss the application for fresh
    evidence and dismiss the appeal for the foregoing reasons. The cross-appeal was
    only to proceed if the appellant succeeded in her appeal. Therefore, I would
    dismiss the cross-appeal as abandoned.

Released: January 10, 2022 G.R.S.

C.W. Hourigan J.A.

I
    agree. G.R. Strathy C.J.O.

I agree.
David
    M. Paciocco J.A.

[1]
First names are used in these reasons for clarity and are not
    intended to show any disrespect to the parties.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Jarvis, 2022 ONCA 7

DATE: 20220112

DOCKET: C67419

Miller, Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kristian Jarvis

Appellant

Myles Anevich, for the appellant

Jessica Smith Joy, for the respondent

Heard: January 4, 2022 by
    video conference

On appeal from the sentence imposed on March
    20, 2019 by Justice John McMahon of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant
was sentenced to 13 years
    in custody, with credit for 3 years for time served, after pleading guilty to
    four counts of robbery while using a firearm, four counts of recklessly
    discharging a firearm, one count of aggravated assault, and one count of
    failing to stop for police.

[2]

The appellant argues that the sentencing judge erred in four
    respects:

1.

By imposing the sentence related to discharging a firearm at a police
    officer consecutively rather than concurrently;

2.

By imposing a harsh, excessive, and crushing sentence;

3.

By failing to adhere to the principle of restraint; and

4.

By erring in principle by failing to properly weigh the aggravating and
    mitigating factors.

[3]

At the hearing of the appeal, counsel for the
    appellant focused his submissions on the first and fourth grounds.

[4]

As explained below, we do not agree that the
    sentencing judge made any error.

[5]

The decision to impose sentences consecutively is
    a discretionary decision. The sentencing judge carefully attended to the
    circumstances of the case and concluded that the offences ought to be grouped
    into three distinct phases: (1) firing a handgun at his brother, (2)
    multiple attempted carjackings and assaults including shooting the occupant of
    one of the vehicles, and (3) evading capture by firing at the police while
    engaging them in a high speed chase up Highway 400. The appropriateness of sentencing
    consecutively for offences related to flight from police is supported by the
    authorities that stress the need for deterrence of highly dangerous behaviour in
    flight from police:
R. v. Corcho
, [1993] O.J. No. 98 (C.A.);
R. v.
    Mills
, 2014 ONSC 1134, at para. 110; and
R. v. McFarlane
, [2012]
    O.J. No. 6566 (S.C.), at paras. 70-73. If sentences for such offences are not
    consecutive, flight from police might seem well worth the risk:
R. v.
    Sturge
(2001), 17 M.V.R. (4th) 272 (Ont. C.A.), at para. 6. The sentencing
    judge made no error in this regard.

[6]

The 10-year sentence imposed for aggravated
    assault involving gun violence and injury was within the range identified by
    the parties of 7  11 years:
R. v. Bellissimo
, 2009 ONCA 49, at para.
    3. With respect to firing at police during the chase on Highway 400, the
    sentencing judge reduced the consecutive sentence for discharging a firearm
    with intent to endanger the life of the police officers to 3 years from 7 out
    of respect for the totality principle. The sentencing judge was entitled to
    approach sentencing in this fashion, and the total sentence resulting was not harsh
    and excessive given the circumstances of the offences.

[7]

With respect to the restraint principle, the sentencing
    judge considered the facts relevant to restraint, including the appellants
    lack of a prior criminal record and that the global sentence imposed should not
    crush the appellants hope of rehabilitation and reintegration into society.
    The sentencing judge did not err by prioritizing denunciation and deterrence in
    the circumstances of these offences and this offender.

[8]

Finally, the appellants submission that the
    trial judge erred in improperly weighing the aggravating and mitigating factors
    is in reality an invitation to reweigh, something an appellate court is not
    permitted to do. The sentencing judge took into account, as a mitigating
    factor, that the appellant had committed the offences while in a drug induced
    psychosis brought on by the voluntary ingestion of methamphetamines, but also
    noted that this did not justify his criminal conduct and that the appellant had
    made conscious and clear decisions demonstrating a high degree of culpability. The
    sentencing judge did not make the error of using the elements of the offences
    as aggravating factors. Carrying a handgun was an aggravating element, as was the
    number of times the appellant fired the gun, and the infliction of gratuitous
    violence, particularly with respect to the victim he shot.

DISPOSITION

[9]

Leave to appeal sentence is granted but the
    appeal of sentence is dismissed.

B.W.
    Miller J.A.

B.
    Zarnett J.A.

S.
    Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: UL Lawyers Professional
    Corporation v. Notay, 2022 ONCA 8

DATE: 20220112

DOCKET: C69327

Doherty, Tulloch and Thorburn
    JJ.A.

BETWEEN

UL Lawyers Professional
    Corporation

Applicant (Appellant)

and

Jasbir Notay

Respondent (Respondent in Appeal)

Sunish R. Uppal and Vismay Merja, for
    the appellant

Jamie Min, for the respondent

Heard: January 5, 2022 by
    video conference

On appeal from the order of Justice
    Thomas A. Bielby of the Superior Court of Justice, dated March 23, 2021.

REASONS FOR DECISION

[1]

The appellant law firm (UL) acted for the
    respondent in motor vehicle litigation. The respondent discharged UL and
    retained the Naimark Law firm (Naimark). UL sought an undertaking from
    Naimark to protect ULs account for legal fees and disbursements arising out of
    the retainer with Mr. Notay. Ultimately, no undertaking satisfactory to UL was
    provided by Naimark. UL sought a solicitors lien in the amount of $73,195.75
    against the proceeds of the settlement of the accident benefit claims arising
    out of the motor vehicle litigation.

[2]

The application judge identified the three
    criteria which must be satisfied to obtain a solicitors charging order. The
    solicitor must show:

·

the fund or property over which the charging
    order is sought is in existence at the time the order is sought;

·

the property must have been recovered or preserved
    through the instrumentality of the solicitor; and

·

there must be some evidence that the client
    cannot or will not pay the lawyers account: see
Bilek v. Salter Estate
,
    2009 CanLII 58582 (ONSC).

[3]

The application judge was satisfied the first
    two criteria were met. He concluded, however, that there was no evidence the
    client would not or could not pay the fees. The application judge relied on
    what he found to be a clear undertaking given by Naimark to protect ULs
    account for fees and disbursements.

[4]

Counsel for UL submits the application judge
    made a palpable and overriding error in concluding that a clear undertaking had
    been given by Naimark. In addition to alleged errors in respect of the evidence
    before the application judge, counsel also relies on the fact that after the
    application judges decision, Mr. Notay commenced a $5,000,000 lawsuit against
    UL. In that action, he claims that UL was negligent and in breach of its
    fiduciary duty to him in the context of the tort litigation arising out of the
    automobile accidents. UL argues that this lawsuit, on its own, constitutes
    some evidence that the client cannot or will not pay ULs fees and
    disbursements.

[5]

The evidentiary burden on a solicitor to show
    the client cannot or will not pay the lawyers fees is a low one. There need
    only be some evidence. The evidence before the application judge arguably
    cleared that evidentiary hurdle. The undertaking relied on by Naimark was
    arguably ambiguous. Naimarks refusal to provide an undertaking in the terms
    requested by UL, and its delay in responding to ULs request for clarification,
    along with disputes over the amounts of certain disbursements, provide reasons
    to doubt that Mr. Notay would pay the fees and disbursements in issue.
    Furthermore, after about four months of wrangling over the terms of the
    undertaking to pay ULs fees and disbursements, Naimark appeared to further
    qualify the undertaking to protect ULs fees by including the indication that
    any undertaking would be subject to the clients approval. No approval was
    forthcoming. Finally, the tone of the communications between UL and Naimark
    took on a decidedly hostile tone, suggestive of the possibility of litigation
    over ULs fees and disbursements.

[6]

Ultimately, it is unnecessary to decide whether
    the application judge made a clear and palpable error in declining to make the
    order sought by UL. The lawsuit commenced by Mr. Notay after the application
    was heard, considered along with the factors identified by the application
    judge, provides some evidence that Mr. Notay would not pay ULs account.

[7]

The appeal is allowed. UL is entitled to a
    solicitors lien on the funds obtained through settlement of the accident
    benefit claims in the litigation brought on Mr. Notays behalf in the amount of
    $73,195.75.

[8]

The appellant, having successfully reversed the
    result on the application, is entitled to costs on the application. We fix
    those costs at $1,662 plus H.S.T., the amount the application judge had awarded
    to Mr. Notay on the application. UL is also entitled to costs of the appeal. We
    fix those costs in the amount of $4,867, inclusive of disbursements and H.S.T.

Doherty
    J.A.

M.
    Tulloch J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Amatuzio v. 650 Atwater Avenue
    Ltd., 2022 ONCA 9

DATE: 20220112

DOCKET: C68798

Rouleau, van Rensburg and
    Roberts JJ.A.

BETWEEN

Michele Amatuzio and Magdalena
    Amatuzio

Applicants (Appellants)

and

650 Atwater Avenue Ltd.

Respondent (Respondent)

Obaidul Hoque, Zaheed Moral and Taheratul
    Haque, for the appellants

Micheal Simaan, for the respondent

Heard: January 4, 2022 by
    video conference

On appeal from the order of Justice Heather
    A. McGee of the Superior Court of Justice, dated October 13, 2020.

REASONS FOR DECISION

[1]

The appellants contracted with the respondent to purchase a new
    condominium unit in a residential development that the respondent was building
    in Mississauga. After the respondent required a number of extensions, the
    interim occupancy date was set for June 27, 2019. The appellants were concerned
    that the unit was not in fact ready for occupancy, and there were
    communications between legal counsel for the parties. Ultimately, the
    appellants purchase was not completed and eventually the unit was sold to another
    purchaser.

[2]

The appellants brought an application seeking a declaration that the
    respondent had breached the agreement of purchase and sale (the APS) and for
    a reference to determine damages.

[3]

The central issue in the application was whether the respondent complied
    with its obligations under a Tarion Warranty Corporation Addendum that formed
    part of the APS. Section 9(a) of the Tarion Addendum provides as follows:

9.  Ontario Building Code  Conditions of Occupancy

(a) On or before the Occupancy Date, the Vendor shall deliver
    to the Purchaser:

(i) an Occupancy Permit (as defined in paragraph (d)) for the
    home; or

(ii) if an Occupancy Permit is not required under the Building
    Code, a signed written confirmation by the Vendor that all conditions of
    occupancy under the Building Code have been fulfilled and Occupancy is
    permitted under the Building Code.

Occupancy Permit is defined as any written or
    electronic document, however styled, whether final, provisional or temporary,
    provided by the chief building official (as defined in the
Building Code Act
) or a person designated by the chief
    building official, that evidences that permission to occupy the home under the
Building Code

has been granted.

[4]

The application judge concluded that, notwithstanding that an Occupancy
    Permit dated June 27, 2019 was in fact provided for the unit by the
    respondents lawyer to the appellants lawyer on July 9, 2019, on a plain
    reading of the
Building Code
,
an occupancy permit was not
    required for the purchasers unit because a condominium development with
    multiple floors does not fall within the definition of a residential building
    that requires an occupancy permit. She concluded that the June 27, 2019 letter
    from the builders representative was sufficient: at para. 28.

[5]

The appellants assert that there was no evidence to support the
    application judges conclusion that no occupancy permit was required under s.
    1.3.3.4 of Part C of the
Building Code
[1]
, which was based on
    statements of the respondents counsel during oral argument, and that the
    application judge erred in failing to consider s. 1.3.3.4 in the context of the
    other provisions of s. 1.3.3. During oral argument on the appeal we asked the
    respondents counsel to take us to the evidence that supported this conclusion.
    He referred to photos of the buildings under construction and drawings in the
    record to assert that no occupancy permit was required, but suggested at the
    same time that the evidence was not as clear as the application judge
    suggested.

[6]

It is unnecessary for the disposition of this appeal to determine
    whether an occupancy permit was required. Even if the application judge was
    correct in concluding that no occupancy permit was required, we agree with the
    appellants that she made a palpable and overriding error in her conclusion that
    the June 27 letter was delivered before closing, on June 26, along with the
    pre-delivery inspection form, and that this satisfied the requirement under s.
    9(a) of the Tarion Addendum.

[7]

There is no evidence that the letter was delivered to the purchasers
    as required by the terms of the Tarion Addendum on June 26, or at any time
    until the responding materials were delivered in these proceedings. Rather, the
    evidence of the builders representative was that the letter, together with the
    key to the appellants unit, was placed in an envelope that was available for
    pick up on closing. The respondents counsel refers to an answer to an
    undertaking with respect to evidence that the letter had been delivered, which simply
    states that, according to the respondents real estate solicitor, all
    purchasers solicitors were informed that the key and any final instructions
    would be available upon receipt of all closing documents and funds. At no
    time during the exchange between the parties counsel with respect to whether
    an occupancy permit was required did the respondents counsel indicate that
    such a letter existed or ensure that it was delivered. To the contrary, he took
    the position that the unit was cleared for occupancy by the City and that the
    appellants lawyer should satisfy himself that occupancy was permitted.

[8]

Accordingly, we allow the appeal. The respondent failed to comply with
    s. 9(a) of the Tarion Addendum until July 9, 2019, and the appellants were
    entitled to set a new date for the interim closing. The evidence is that they
    attempted to do so, and had provided evidence that they were in funds and ready
    to close once the occupancy permit was provided.

[9]

The order below and the order for costs against the appellants are set
    aside. The appellants are entitled to an order declaring that the respondent
    breached the APS by failing to close the interim purchase and sale of their
    unit, with a reference to determine damages.

[10]

The
    appellants are entitled to their costs of the appeal, which we fix at $7,500,
    inclusive of HST and disbursements, and costs of the proceedings in the court
    below fixed at $15,000 plus HST.

Paul Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.

[1]

The
    application judge referred to s. 1.3.3.3, which the parties agree was in fact a
    reference to s. 1.3.3.4, which was relied on by the respondent at the hearing
    of the application.


COURT OF APPEAL FOR ONTARIO

CITATION: Ho v. Ontario, 2022 ONCA 11

DATE: 20220112

DOCKET: C69369

Rouleau, van Rensburg and
    Roberts JJ.A.

BETWEEN

Wendy Sin Ming Ho

Plaintiff (Appellant)

and

Her Majesty the Queen in Right
    of Ontario

Defendant (Respondent)

Wendy Sin Ming Ho, acting in person

Adam Mortimer, for the respondent

Heard: January 7, 2021 by video conference

On
    appeal from the order of Justice Frederick J. Myers of the Superior Court of
    Justice, dated March 24, 2021, with reasons at 2021 ONSC 2249.

REASONS FOR DECISION

[1]

The appellant alleges that she suffered
    significant psychological harm from harassment and criminal threats made
    against her while employed at an Ontario hospital between 1999 and 2000.

[2]

Her efforts to obtain redress against her
    employer were dismissed by the Ontario Labour Relations Board and the Workplace
    Safety and Insurance Appeals Tribunal. The Ontario Human Rights Commission
    refused to take up her case, and she obtained no satisfaction from a complaint
    before the Health Professions Appeal and Review Board.

[3]

The appellant then sued the Crown and the four
    tribunals for their failure to protect her from the alleged illegal acts of her
    former supervisor and employer. Firestone J. found that the tribunals were not suable
    entities and struck her claim against the Crown with leave to amend.

[4]

The present appeal is from the motion judges dismissal
    of that amended pleading. There, the appellant argued that the Crown is responsible
    for her employers alleged harassment and threats, as well as the subsequent
    failure of the tribunals to support her claims, because the province is constitutionally
    responsible for hospitals and provincial administrative tribunals. She also claimed
    that these wrongs violate her security of the person and right to equal benefit
    of the law as guaranteed by the
Canadian
Charter of Rights and Freedoms
.
    Finally, the appellant sought a declaration and an injunction requiring the Royal
    Canadian Mounted Police (RCMP) to investigate the alleged criminal conduct on
    the part of her former employer.

[5]

The motion judge dismissed the appellants action
    because her pleading could not possibly result in a judgment against the Crown.
    The motion judge explained that the Crown is not vicariously liable for the
    employment related issues of public hospitals, nor is it liable for the quasi-judicial
    decisions of administrative tribunals. He also determined that the alleged
Charter
breaches were no more than the appellant disagreeing with the outcome of the
    tribunal proceedings. Finally, the motion judge found no basis for a court
    exercising civil jurisdiction to make a declaratory order compelling a criminal
    investigation by the RCMP.

[6]

Before this court, the appellant has sought to
    reframe the arguments she made below. She suggests there has been a fraud on
    the court, and that the court must protect her rights and prevent abuses of
    authority. In addition, she criticizes the way she has been treated by the
    legal system, including the fact that she has not been provided with
    appropriate assistance to advance her claim.

[7]

The appellant has also brought a motion seeking
    leave to file fresh evidence. That fresh evidence consists principally of
    material related to her dispute with her previous employer, as well as her
    request for a declaratory order compelling the RCMP to carry out an
    investigation.

[8]

In our view, the appellant has not demonstrated
    any error on the part of the motion judge. Her arguments, although reframed,
    are, in effect, the same as were made before the motion judge. There is simply
    no viable cause of action pleaded against the Crown. As for the fresh evidence,
    it does not, in our view, assist her in making out a potential claim.

[9]

For these reasons, the motion to file fresh
    evidence and the appeal are dismissed. Costs to the respondent are fixed in the
    amount of $2,500 inclusive of disbursements and applicable taxes.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Meridian C C Intl Inc. v. 2745206
    Ontario Inc., 2022 ONCA 12

DATE: 20220112

DOCKET: C69533

Rouleau, van Rensburg and Roberts
    JJ.A.

BETWEEN

Meridian C C Intl Inc. and
    Guiyan Xin

Plaintiffs/Defendants by Counterclaim
(Appellants)

and

2745206 Ontario Inc.

Defendant/Plaintiff by
    Counterclaim
(Respondent)

Robert S. Choi and Gina P. Rhodes, for
    the appellants

Michael A. Katzman, for the respondent

Heard: January 4, 2022 by
    video conference

On appeal
    from the judgment of Justice Frederick L. Myers of the Superior Court of Justice
    dated May 3, 2021, with reasons reported at 2021 ONSC 3270.

REASONS FOR DECISION

[1]

This appeal concerns a termination provision in
    a commercial lease. Paragraph 11(1) of the lease permits the landlord to terminate
    the tenancy upon giving 180 clear days written notice where the landlord
    desires to remodel or demolish any part of the rented premises to an extent
    that renders continued possession by the tenant impracticable. It is the
    interpretation and application of the quoted words that are in issue in this
    case.

[2]

The respondent landlord gave the appellant
    tenant the requisite 180 days written notice to terminate under para. 11(1) of
    the lease so that it could remodel the premises. The remodeling plan proposed
    the demolition of the garage, the remodelling of the main floor into two
    separate units, the replacement of windows, wiring and plumbing throughout the
    premises, and the use of part of the basement for building services and
    utilities. The appellants (the tenant and its principal) resisted the termination.
    They asserted, among other things, that the termination was in bad faith
    because the respondent had sought to terminate the lease, which had been in
    existence since 2013, shortly after purchasing the building in which the leased
    premises were located. They also claimed that the proposed remodelling would
    not interfere with the operation of the tenants business. The retail portion occupied
    only one half of the main floor of the building, such that the remodelling
    would not render the tenants continued possession impracticable.

[3]

In the litigation that followed, the respondent
    moved for summary judgment seeking to enforce the termination. The motion judge
    found that the planned renovations were
bona fide
and that the
    premises as described under the lease would cease to exist because of the
    planned renovations. As a result, he concluded that continued possession by the
    tenant was impracticable. He rejected as irrelevant the issues surrounding the
    evolution of the landlords plans and whether the tenant could possibly remain
    in part of the premises during renovations because, as he explained, the
    proposed remodeling and demolition deprive the tenant of substantial portions
    of the Premises defined under the lease. He determined that the respondent
    properly gave notice to terminate the lease in accordance with the parties
    bargain. He dismissed the appellants action and allowed the respondents counterclaim
    to terminate the lease, with costs to the respondent in the amount of $75,000.

[4]

The appellants raise several grounds of appeal.
    To dispose of the appeal, it is necessary to resolve only the issue of whether
    the motion judge erred in construing para. 11(1) of the lease too narrowly and
    in isolation from the other provisions of the lease.

[5]

For the reasons that follow, we agree that the
    motion judge made reversible errors of law in his interpretation of the lease, and
    we allow the appeal.

[6]

It is helpful to begin our analysis with the
    standard of review. The motion judges interpretation of the parties lease
    agreement, including its factual matrix, would ordinarily attract a deferential
    standard of appellate review:
Sattva Capital Corp. v. Creston Moly Corp.
,
    2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52. Absent an extricable question
    of law, which courts should be cautious in identifying, or palpable and
    overriding error, appellate intervention is not warranted:
Sattva
, at
    paras. 53-54.

[7]

An extricable question of law includes a legal
    error made in the course of contractual interpretation such as the application
    of an incorrect principle, the failure to consider a required element of a
    legal test, or the failure to consider a relevant factor:
Sattva
, at
    para. 53. Moreover, a failure to consider the contract as a whole, by focussing
    on one provision without giving proper consideration to other relevant
    provisions, can also be an error of law:
Fuller v. Aphria Inc.
, 2020
    ONCA 403, 4 B.L.R. (6th) 161, at para. 50;
Resolute FP Canada Inc. v. Ontario
    (Attorney General)
, 2019 SCC 60, 444 D.L.R. (4th) 77, at paras. 26-27, 30
    and 32-34. Finally, in
Ventas, Inc. v. Sunrise Senior Living Real Estate
    Investment Trust
, 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24, this court
    emphasized that a commercial contract should be interpreted as a whole, in a
    manner that gives meaning to all of its terms and avoids an interpretation that
    would render one or more of its terms ineffective. In our view, the motion
    judge made these errors of law in his analysis of the lease.

[8]

The motion judge was required to consider whether
    it was impracticable in this case for the landlord to carry out the proposed
    remodelling while the tenant continued in possession. This was a fact-specific
    exercise for the motion judge to undertake based on his interpretation of the
    particular lease and the evidence in the record before him:
Kinglip
    Holdings Inc. v. Novak Graphics Inc.
, [2000] O.J. No. 3723 (S.C.), at
    para. 12.

[9]

However, the motion judge erred by focussing too
    narrowly on the definition of the leased premises and the results of the proposed
    renovations. This was a flawed approach.  Instead of giving effect to para. 11(1)
    in its entirety, the motion judges approach would give rise to the unintended
    and commercially unreasonable result that any change which reduces the area of
    the leased premises would allow the landlord to terminate the lease. The motion
    judges approach further caused him to interpret para. 11(1) of the lease in a
    manner that was inconsistent with the whole of the parties agreement. Most
    notably, the motion judges narrow interpretation would untenably permit the
    landlord to terminate the lease in order to make alterations, such as partitioning
    the main floor, and lease parts of the leased premises to other tenants when,
    with the approval of the landlord, the tenant is permitted to carry out the
    same kinds of alterations and sublet parts of the premises under paras. 4 and 7
    of the lease.

[10]

As a result of these errors, the motion judge
    failed to determine the principal question that he had to decide, namely, the
    question of whether the proposed renovations rendered continued possession by
    the tenant impracticable. Accordingly, whether the tenant could remain in possession
    and continue its operation in part of the premises during the renovations were
    relevant questions, among others, that the motion judge should have determined.

[11]

It is not appropriate for this court, on the
    available record, to make the factual findings to determine these issues. Accordingly,
    we set aside the dismissal of the action and the judgment in the counterclaim, such
    that the action will continue in the Superior Court.

[12]

While not strictly necessary to dispose of this
    appeal, it will be of assistance to the parties going forward for us to address
    the appellants argument concerning the motion judges treatment of the opinion
    offered by the appellants construction witness, Tim Clarke. We see no error in
    the motion judge declining to accept Mr. Clarkes opinion evidence. As the motion
    judge rightly noted, the appellants did not seek to qualify him as an expert. Mr.
    Clarke was not a fact witness but was proffered solely for the purpose of giving
    opinion evidence. If the appellants wish to adduce Mr. Clarkes opinion
    evidence in this action, they will have to comply with the requirements respecting
    experts under the common law and the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194.

Disposition

[13]

Accordingly, we allow the appeal. The judgment
    and the costs order are set aside.

[14]

The appellants are entitled to their partial
    indemnity costs of the appeal in the amount of $15,000, inclusive of disbursements
    and applicable taxes.

[15]

As this matter is not finally determined, it is
    appropriate to reserve the disposition of the summary judgment motion costs to
    the judge who finally disposes of this action.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Kam v. Canadian Broadcasting Corporation, 2022 ONCA 13

DATE: 20220111

DOCKET: C69274

Huscroft, Trotter and Coroza
    JJ.A.

BETWEEN

Michelle Kam

Plaintiff (Appellant)

and

Canadian Broadcasting
    Corporation, Zach Dubinsky and Lisa Mayor

Defendants (Respondents)

Christopher Stienburg, for the
    appellant

Andrea Gonsalves and Carlo Di Carlo,
    for the respondents

Heard: January 10, 2022 by
    video conference

On appeal from the order of Justice Eugenia
    Papageorgiou of the Superior Court of Justice, dated March 3, 2021.

REASONS FOR DECISION

[1]

The appellant argues that the motion judge erred
    in finding the photo of the appellant (Statement 6) in the second article was
    not defamatory. We disagree. The motion judge applied the proper test and her
    conclusion that the placement of the photo was not capable of bearing any of
    the defamatory meanings claimed by the appellant is entitled to deference.

[2]

The appellants main argument is that the motion
    judge erred in finding that she failed to demonstrate that the defence of
    responsible communication did not tend to weigh more in favour of the respondents.
    There is no merit to this argument.

[3]

The motion judge applied the proper legal
    framework from
1704604 Ontario Ltd. v. Pointes Protection Association
,
2020 SCC 22, and
Grant v. Torstar
, 2009 SCC 61, [2009] 3 S.C.R. 640,
    and her findings are amply supported by the record. It was reasonable for the
    respondents to conclude that the appellant chose not to respond to the
    allegations given her refusal to speak with the respondents concerning those
    allegations on several occasions. The motion judge made no error in finding
    that no material facts were omitted from the publication and again, her
    decision is entitled to deference.

[4]

Finally, the motion judge addressed the public
    interest balancing under s. 137.1(4)(b) only out of caution, in the event
    that her decision concerning the responsible communication defence was found to
    be erroneous. We have concluded the motion judge made no error in applying s.
    137.1(4)(a). As a result, her findings concerning s. 137.1(4)(b) are irrelevant
    and we are not to be taken as endorsing or rejecting them.

[5]

The appeal is dismissed.

[6]

The respondents are entitled to costs in the
    agreed amount of $8,300, all inclusive.

Grant Huscroft J.A.

Gary Trotter J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Idea Notion Development Inc. v.
    CTO Boost Inc., 2022 ONCA 14

DATE: 20220113

DOCKET: C69205

Doherty, Tulloch and Thorburn
    JJ.A.

BETWEEN

Idea Notion Development Inc.

Plaintiff (Respondent)

and

CTO Boost Inc., Gurminder
    Kandola and Gursharnjit Kandola

Defendants (Appellant)

James R. Smith for the appellant, CTO
    Boost Inc.

Aaron Boghossian, for the respondent

Heard: January 4, 2022 by
    video conference

On appeal from the order of Justice
    Papageorgiou of the Superior Court of Justice, dated February 12, 2021 and
    reported at 2021 ONSC 289.

REASONS FOR DECISION

[1]

The appellant (CTO) hired the respondent
    (Idea Notion) to provide software development services on various projects.
    The work began in August 2018 and was completed about 10 months later. Idea Notion
    submitted five invoices to CTO totalling about $219,000. CTO made no complaint
    about the quality of the work, or the invoice amounts.

[2]

CTO provided Idea Notion with cheques for their
    services, however, many of those cheques were returned NSF. As of June 2019, there
    remained about $200,000 owing to Idea Notion, based on the invoices submitted
    by it to CTO.

[3]

Negotiations in respect of the payment of the
    outstanding invoices ensued over several months. CTO made two offers to settle.
    Both were rejected by Idea Notion. On October 17, 2018, CTO made a third offer
    to settle based on a lump sum payment of $85,000 by CTO, followed by 12 equal monthly
    payments totalling $115,000, for a total payment of $200,000. On October 22,
    2018, Idea Notion, through counsel, accepted CTOs October 17, 2018 offer.

[4]

Three days after accepting the offer, counsel
    for Idea Notion provided CTO with draft Minutes of Settlement. Discussions
    concerning those draft minutes occurred between October 25 and November 5,
    2018. On November 5, 2018, CTO advised Idea Notion that CTO would not proceed
    with the settlement, claiming the invoices were fraudulent and inflated.

[5]

On November 19, 2018, Idea Notion sued CTO on
    the original contract. Idea Notion later amended its claim to include a claim
    for enforcement of the settlement entered into in October 2018.

[6]

Idea Notion successfully moved for summary
    judgment on the claim to enforce the settlement. CTO appeals from that judgment
    and renews many of the arguments unsuccessfully advanced on the summary
    judgment motion.

[7]

We are satisfied this appeal must fail. As we
    are in substantial agreement with the motion judge, we need not repeat her
    careful analysis and need only deal briefly with the grounds of appeal.

Ground #1: Did the motion judge err in
    allowing Idea Notion to tender without prejudice documents relating to the
    two rejected Offers to Settle made by CTO prior to October 2019?

[8]

Normally, without prejudice communications
    made in the course of settlement discussions are inadmissible. They are,
    however, admissible if disclosure is necessary to prove the existence or scope
    of the settlement:
Union Carbide Inc. v. Bombardier Inc.
, 2014 SCC
    35, at para. 35.

[9]

CTO denied that it entered into an enforceable
    agreement to settle (Statement of Defence, at para. 35). Mr. Kandola, the
    directing mind of CTO, repeated that assertion in his examination.

[10]

It was incumbent on Idea Notion to demonstrate
    the existence of the agreement to settle. To do so, Idea Notion had to refute
    CTOs claim that there was no agreement to settle because CTOs offer was conditional
    upon CTO being satisfied that the amounts invoiced were correct. Idea Notion
    also had to refute CTOs argument that there was no settlement because the
    October offer did not deal with all of the terms essential to a settlement,
    including the potential ongoing liability of the personal defendants.

[11]

In the course of considering and rejecting these
    arguments, the motion judge took into account some of the without prejudice
    communications between counsel for CTO and counsel for Idea Notion (e.g. see
    Reasons, at paras. 46-49, 53-58). The motion judge was entitled to consider the
    without prejudice documents to the extent those documents were relevant to the
    existence of the alleged agreement to settle. CTOs arguments that the October
    offer was conditional, and that it did not contain all essential terms, both
    went to the existence of an agreement to settle. The contents of the without
    prejudice documents, even though they related to prior offers, were also
    relevant to whether the parties had reached an agreement in October.
    Consequently, the without prejudice communications fell squarely within the
    exception to the exclusionary rule described in
Union Carbide
. The
    motion judge correctly held the documents to be admissible.

[12]

In a related argument, CTO submitted that the
    without prejudice documents were submitted by way of an affidavit that was
    filed in contravention of r. 39.02 of the
Rules of Civil Procedure
.
    Even if there was non-compliance with r. 39.02, CTO was not prejudiced, given
    our finding that the without prejudice documentation was admissible. There is
    no suggestion that CTO was, in any way, taken by surprise by the documentation,
    or unable to address the significance, if any, of the documents on the motion.
    The real complaint is that the documents were inadmissible. We have held the
    motion judge correctly determined they were admissible.

Ground #2: Did the motion judge err in her
    analysis of the evidence presented on the summary judgment motion?

[13]

The motion judge was entitled to weigh the
    evidence offered by the parties and make assessments of the credibility and
    reliability of various aspects of that evidence. She gave several reasons for
    giving little credence to CTOs evidence in respect of the
bona fides
of the invoices provided by Idea Notion. She also gave reasons for giving
    little weight to the analysis of those invoices allegedly done by Mr. Kandolas
    brother (Reasons, at paras. 68-82).

[14]

The motion judges observations with respect to
    that evidence were available on the record. She was entitled to make those
    assessments and we defer to her credibility and reliability findings. Based on
    her assessment of the evidence, this was an appropriate case for summary
    judgment.

Ground #3: Was there any basis upon which to
    give effect to CTOs fraudulent misrepresentation defence?

[15]

The motion judge properly identified the
    elements of the defence (Reasons, at para. 67). In concluding that the defence
    provided no reason not to grant summary judgment, the motion judge said:

The most significant problem with CTOs
    argument [i.e. that the settlement was procured by fraudulent misrepresentation],
    however, is that even if the invoices contained errors or misrepresentations,
    fraudulent or otherwise, Mr. Kandola admits that CTO believed there were
    discrepancies, had access to all the information needed to audit them, and then
    decided to proceed with settlement negotiations in any event.
CTO cannot show that any alleged misrepresentation in the
    invoices caused it to enter into the settlement. It did so with its eyes wide
    open as to the possibility of discrepancies for its own business reasons
.
    [Emphasis added.]

[16]

The observations of the motion judge are
    supported by the record. We are also satisfied that the without prejudice
    documentation was admissible on the question of whether any misrepresentation
    by Idea Notion with respect to the
bona fides
of the invoices
    allegedly made during the negotiations had any impact on CTOs decision to make
    the offer to settle in October 2018.

Ground #4: Should the motion judge have
    exercised her discretion and declined to enforce the settlement by way of
    summary judgment?

[17]

There is a discretion to decline to enforce
    settlement agreements by way of summary judgment motions. This discretion is
    guided by administration of justice concerns. If the enforcement of the agreement
    would be unreasonable, result in an injustice, or for some other good reason,
    not be in the interests of justice, the motion judge can decline to grant
    summary judgment on the agreement, even though on the evidence an agreement was
    reached.

[18]

The motion judge considered and rejected the arguments
    that the interests of justice required that she not exercise her discretion in
    favour of enforcing the agreement on a summary judgment motion (Reasons, at
    paras. 84-94). As this involves an exercise of discretion, we must defer to the
    motion judge, absent a determination that the motion judges decision is
    unreasonable or tainted by legal error. In our view, the motion judges finding
    is neither unreasonable, nor based on any legal error.

Conclusion

[19]

The appeal is dismissed. Idea Notion is entitled
    to its costs against CTO, the only defendant involved in the summary judgment
    motion. We fix those costs at $8,000, inclusive of disbursements and relevant
    taxes.

Doherty
    J.A.

M.
    Tulloch J.A.

J.A.
    Thorburn J.A.