WARNING

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

The court orders that the non-publication and sealing order
    of Justice V. Jennifer Mackinnon dated April 12, 2011 and the interim order of
    this court prohibiting publication of material filed in this court or
    information referred to at the appeal hearing that was subject to the order of
    Justice Mackinnon will remain in effect for fourteen days following the release
    of these reasons unless otherwise ordered by a court of competent
    jurisdiction.  Thereafter, subject to any such further order, the interim order
    of this court shall expire and the order of Justice Mackinnon is set aside,
    with the exception that the provisions of the non-publication order as it
    relates to the respondents social insurance number, date of birth, bank
    account numbers and domestic contract produced on the motion shall continue.
    The provisions of the non-publication order as it relates to the medical
    information produced on the motion shall continue, but does not extend to
    references to that information found in either the motion judges reasons or in
    the reasons of this court.

CITATION:
M.E.H. v. Williams, 2012
          ONCA 35

DATE:  20120124

DOCKET: C53701

COURT OF APPEAL FOR ONTARIO

Doherty, Armstrong and Hoy JJ.A.

BETWEEN

M.E.H.

Applicant (Respondent)

and

David Russell Williams

Respondent

and

The
          Ottawa Citizen (a division of Postmedia Network Inc.)
, CTV Inc.,
The
          Canadian Broadcasting Corporation
, Global Television (a division of Shaw
          Communications), and The Ottawa Sun (a division of Sun Media Corporation)

Interveners (Appellants)

Richard G. Dearden and Ryan Kennedy, for the interveners
          (appellants)

Mary Jane Binks, Q.C. and Jonathan M. Richardson, for the
          respondent

Heard:  November 29, 2011

On appeal from the order of Justice
          V. Jennifer Mackinnon of the Superior Court of Justice dated April 12, 2011,
          with reasons reported at 2011 ONSC 2022.

Doherty J.A.:

I

OVERVIEW

[1]

The respondent proposes to commence a proceeding in which she will seek
    a divorce and corollary relief from her husband, David Russell Williams
    (Williams).  She brought a motion seeking an order sealing the entire record in
    the proceeding she proposes to bring against Williams.  Alternatively, the
    respondent sought an order banning publication of the medical evidence relied
    on in support of her motion and banning publication of any financial or medical
    records that may be produced during the proceedings against Williams.  Although
    not specifically requested in the notice of motion, the respondent also sought
    an order prohibiting publication of any information that would identify her by
    name as the person bringing the proceedings against Williams.

[2]

Williams did not oppose the motion.  Various media organizations were
    served with notice of the motion and several, including the Ottawa Citizen and
    the Canadian Broadcasting Corporation (appellants), were granted intervener
    status on the motion.  They opposed the motion.

[3]

The motion judge made a non-publication and sealing order.  The orders
    were broad, but not as broad as requested by the respondent.  The terms of the non-publication
    order can be summarized as follows:

·

A term banning publication of any information that served to
    identify the name, address or contact information of the respondent.  She was
    to be referred to in the title of proceedings as M.E.H.  Any accounts relating
    to the divorce proceedings were to refer to her by those initials or as the
    wife of Williams.

·

A term banning publication of any photograph or likeness of the
    respondent in any report or publication relating to the motion or to any aspect
    of the divorce proceeding.

·

A term banning publication of the name, address, or contact
    coordinates of the respondents employer in any report or publication relating
    to the motion or divorce proceedings.

·

A term banning publication of the respondents social insurance
    number, her date and place of birth, the address of her real property, the
    names of any financial institutions with which she deals and the respondents
    account numbers at those institutions in any report or publication relating to
    the motion or the divorce proceedings.

·

A term banning publication of any information filed in the
    divorce proceedings referable to the assets or liabilities of the respondent
    not derived from transfers or assignments to her from Williams after February
    2010.

[4]

To give effect to the non-publication order, the motion judge provided
    that a redacted version of the record with the information covered by the
    non-publication order removed from it would constitute the public record of the
    proceedings.

[5]

In addition to the non-publication order, the motion judge ordered that
    any tax returns or income and expense portions of financial statements filed in
    the divorce proceedings by the respondent could be filed under seal.

[6]

The motion judge also made a non-publication order in respect of the medical
    information filed on the motion and the domestic contract between Williams and
    the respondent produced on the motion.  While the order itself is not clear,
    the parties have proceeded on the basis that the non-publication order with
    respect to the medical information and the domestic contract does not extend to
    the references to that information in the motion judges reasons.  I will also
    proceed on that basis.

[7]

The appellants appeal from the order of the motion judge.  They
    challenge most, but not all of the terms of the order.  The appellants do not
    challenge the non-publication order as it relates to the respondents social
    insurance number, her date of birth, or her bank account numbers.  They also do
    not challenge the non-publication order applicable to the medical information
    and the domestic contract produced on the motion.

[8]

I do not understand the appellants to concede that the unchallenged
    aspects of the motion judges order were properly made.  Instead, they simply
    choose not to make any arguments against those parts of the order because they
    regard the information covered by those terms to be irrelevant to their
    purposes, and they accept that the references in the motion judges reasons to
    the medical evidence and the domestic contract are sufficient for their
    purposes.

[9]

I would allow the appeal.  The motion judge correctly identified the
    applicable legal principles.  However, the evidence cannot support her
    conclusion that the orders were necessary to prevent a serious risk to the
    proper administration of justice.  Absent that finding, the orders could not
    have been made under the controlling jurisprudence.

II

BACKGROUND

[10]

In February 2010, Williams, who was at the time a colonel in the
    Canadian Forces and the commander of the air force base at Trenton, Ontario,
    was charged with two counts of first degree murder, two counts each of sexual
    assault and forcible confinement, and 82 counts of break and enter.  The
    allegations were stunning in their depravity, especially in light of Williams
    high military rank and his apparently sterling character.  In October 2010,
    Williams pled guilty to the charges and was sentenced to life imprisonment
    without eligibility for parole for 25 years on both counts of first degree
    murder.  Concurrent sentences were imposed on the other charges.

[11]

Understandably, the charges and prosecution of Williams sparked
    widespread public interest.  That interest has been reflected in intense media
    coverage, particularly when the charges were laid and when Williams pled guilty
    and was sentenced.

[12]

According to the material filed on the motion, and I do not understand
    the appellants to challenge this, the respondent was shocked and devastated by
    the charges laid against her husband.  Through the revelations that followed
    the laying of the charges, the respondent learned that her husband, to whom she
    had been married for many years and who she believed to be a highly respected,
    successful and loving man, was in reality a sexual predator and coldblooded
    serial murderer.  On the unchallenged evidence, the respondent is indeed yet another
    victim of Williams depravity.

[13]

The respondent finds herself associated in media reports with Williams,
    now one of Canadas most notorious murderers.  Some media reports have
    identified her by name and referred to her place of employment and her position
    there.  The respondents photograph has appeared in the newspaper in
    association with some of these articles.

III

THE PROCEEDINGS ON THE MOTION

(i)

The Submissions

[14]

The respondents request for non-publication and sealing orders was
    based entirely on the affidavit of her treating psychiatrist, Dr. W. Quan.  He
    was cross-examined on his affidavit.

[15]

Counsel for the respondent argued that Dr. Quans evidence established a
    real and substantial risk to the respondents mental wellbeing if the media was
    allowed to identify her by name or other details and/or publish the kind of
    financial and personal information routinely filed in divorce proceedings and
    available to the media in Ontario.  Respondents counsel submitted that the
    evidence went beyond evidence demonstrating the respondents personal distress
    and embarrassment and spoke to the respondents ability to gain access to the
    courts, an issue of public importance to the administration of justice.
    Counsel contended that a litigant like the respondent, who is required to go to
    court to obtain a divorce to sever her relationship with her husband, should
    not be put in a position where the publicity attendant upon gaining that court
    access would pose a substantial risk to the litigants mental health.

[16]

Counsel for the respondent next argued that the salutary effects of the
    non-publication and sealing orders sought outweighed the deleterious effects of
    those orders, including the inevitable negative impact on freedom of expression
    and the open court principle.  Counsel stressed that while divorce proceedings,
    like any court proceeding, have an important public component, the matters at
    issue in this proceeding were essentially private matters between the
    respondent and Williams.

[17]

Counsel for the appellants submitted that, absent an affidavit from the
    respondent, the evidence of Dr. Quan was inadmissible.  Counsel further
    submitted that even if Dr. Quans evidence was admissible, it did not provide
    the kind of convincing evidence needed to establish harm to the administration
    of justice that would warrant the wide-ranging non-publication and sealing
    orders sought.

[18]

Counsel stressed the absence of any affidavit from the respondent and
    her ongoing participation since June 2010 in a lawsuit in which she and
    Williams are defendants in a fraudulent conveyance action brought by one of
    Williams victims.  The respondents statement of defence and an affidavit she
    filed in that proceeding revealed a good deal of the information that she
    sought cloaked in non-publication and sealing orders in her pending divorce
    proceedings.  No non-publication or sealing order had been made in respect of
    the respondents identity or the information contained in her statement of
    defence and the affidavit filed in the fraudulent conveyance action.  The media
    had referred to the contents of that material and nothing filed on the motion
    suggested that the media reports had caused any harm to the respondent or
    interfered with her ability to defend herself in that proceeding.

[19]

The appellants also led evidence on the motion that the respondents
    lawyer had given an interview to a reporter of the Ottawa Citizen in late
    December 2010 in which she identified the respondent by name, referred to her
    place of employment, her intention to seek a divorce, and described in a
    generic way the material that would be filed in the anticipated divorce
    proceeding.  The media again reported on this information in early 2011.  The respondent
    led no evidence that she suffered any adverse consequences from the media
    reports.

[20]

Counsel for the appellant also rejected the characterization of the
    litigation as essentially a private matter.  He submitted that media access to
    and reporting on divorce proceedings, as with other court proceedings,
    furthered the transparency of those proceedings, the public accountability of
    those involved in the proceedings, and in some cases the reliability of the
    results achieved.  Counsel stressed that transparency, accountability and
    reliability are all essential to the continued public confidence in and respect
    for the administration of justice.  On a more specific plane, counsel submitted
    that the division of property between the respondent and Williams, especially
    as it related to his military pension, was a matter of public interest.

(ii)

The Motion Judges Reasons

[21]

The motion judge appreciated that the order sought was an extraordinary
    one in that it would compromise the open court principle, which she described (at
    para. 6), as one of fundamental importance... to our democratic society.  She
    approached her task using the two-step approach identified in a series of cases
    from the Supreme Court of Canada involving non-publication orders and/or
    sealing orders:  see
Toronto Star Newspapers Ltd. v. Ontario
, 2005 SCC
    41, [2005] 2 S.C.R. 188, at para. 26;
Sierra Club of Canada v. Canada
    (Minister of Finance)
, 2002 SCC 41, [2002] 2 S.C.R. 522, at paras. 45-46;
R.
    v. Mentuck
, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32.  This approach
    is commonly referred to as the
Dagenais/Mentuck
test.

[22]

In
Mentuck
, Iacobucci J. said, at para. 32:

A publication ban should only be ordered when:

(a)

such an order is necessary
    in order to prevent a serious risk to the proper administration of justice
    because reasonably alternative measures will not prevent the risk; and

(b)

the salutary effects of the
    publication ban outweigh the deleterious effects on the rights and interests of
    the parties and the public, including the effects on the right to free
    expression, the right of the accused to a fair and public trial, and the
    efficacy of the administration of justice.

[23]

The motion judge concluded (at para. 27) that the first requirement in
Mentuck
had been met by the respondent:

The applicant has shown a real and substantial risk
    to herself which goes beyond personal sensibilities or discomfort, mere
    embarrassment or personal preference.  She requires access to this court in
    order to obtain a divorce and to finalize her financial affairs with the
    Respondent.
There is a real risk that her fragile recovery could be
    compromised by the likely renewed publicity that the proposed litigation will
    occasion.
She has established a real and serious risk to the public
    interest that access to the court not be barred by personal consequences of
    publicity.  [Emphasis added.]

IV

ANALYSIS

[24]

The first branch of the two-part inquiry set out in
Mentuck
,
    described as the necessity branch, is the focus of this appeal.  Before
    turning to the evidence, I will set out some of the important features of that
    branch of the test.

(i)

There Must be a Public Interest at Stake

[25]

Mentuck
describes non-publication and sealing orders as potentially
    justifiable if necessary in order to prevent a serious risk to the proper
    administration of justice.  A serious risk to public interests other than
    those that fall under the broad rubric of the proper administration of
    justice can also meet the necessity requirement under the first branch of the
Dagenais
/
Mentuck
test:
Sierra Club of Canada
, at paras. 46-51, 55.  The interest
    jeopardized must, however, have a public component.  Purely personal interests
    cannot justify non-publication or sealing orders.  Thus, the personal concerns
    of a litigant, including concerns about the very real emotional distress and
    embarrassment that can be occasioned to litigants when justice is done in
    public, will not, standing alone, satisfy the necessity branch of the test:
A.G.
    (Nova Scotia) v. MacIntyre
, [1982] 1 S.C.R. 175, at p. 185;
Sierra Club
    of Canada
, at para. 55;
A.B. v. Bragg Communications Inc.
, 2011 NSCA
    26, 301 N.S.R. (2d) 34, at paras. 73-75.

[26]

The respondent framed her claim in terms of her right to gain access to
    the courts to seek legal redress.  I agree with her contention that access to
    the courts is an essential component of the proper administration of justice.
    There is no need to give any further consideration to other interests which may
    qualify under the first branch of the
Dagenais
/
Mentuck
test.

[27]

There can be no doubt that an individuals right to seek and obtain
    appropriate relief in a court proceeding is a matter of significant public
    interest impacting on the proper administration of justice.  The public
    interest in access to the courts for legal relief is particularly important
    where that access is required to give legal effect to a decision as integral to
    personal autonomy as the decision to seek a divorce.  If insisting on the
    openness usually demanded of court proceedings will effectively close the
    courtroom door to a litigant because of the physical and/or emotional
    consequences to that litigant of maintaining the openness of the courts, I am
    satisfied that the first component of the
Dagenais/Mentuck
test would be
    made out assuming that there was no reasonable alternative to some limit on the
    openness of the courts.  The court would then have to go on and address the
    competing interests under the second component of that test before deciding
    what limit, if any, would be placed on the openness of the courts.

[28]

Counsel for the appellants accepted that access to the courts is a
    matter of public interest that affects the proper administration of justice.
    He submitted that the public interest is engaged only where it is established
    that the litigant would not go to court absent the privacy protections afforded
    by the non-publication and sealing orders.

[29]

In my view, it is not necessary that a litigant establish that he or she
    would not go to court absent the privacy protections requested.  Access to the
    courts should not come at the cost of a substantial risk of serious
    debilitating emotional or physical harm to the party seeking access.  Access to
    the courts at that cost would be more illusory than real.

[30]

The distinction between personal emotional distress and embarrassment, which
    cannot justify limiting publication of or access to court proceedings and
    records, and serious debilitating physical or emotional harm that goes to the
    ability of a litigant to access the court is one of degree.  Expert medical
    opinion firmly planted in reliable evidence of the specific circumstances and
    the condition of the litigant will usually be crucial in drawing that
    distinction:  see
Re: John Doe

P.A.B.D. #1
, 2005 NLTD 214, at
    para. 43.

(ii)
    The Necessity Inquiry Comes First

[31]

The necessity branch focuses exclusively on the existence of a serious
    risk to a public interest that can only be addressed by some form of
    non-publication or sealing order.  The potential benefits of the order are
    irrelevant at this first stage of the inquiry:
Mentuck
, at para. 34.
    Unless a serious risk to a public interest is established, the court does not
    proceed to the second branch of the inquiry where competing interests must be
    balanced.

[32]

As there is no balancing of competing interests at the first stage, it
    is wrong at that stage to consider the extent to which the societal interests
    underlying and furthered by freedom of expression and the open court principle
    are engaged in that particular case.  Even if those values are only marginally
    engaged (the respondents submission in this case), restriction on media access
    to and publication in respect of court proceedings cannot be justified unless
    it is necessary to prevent a serious risk to a public interest.  A court faced
    with a case like this one where decency suggests some kind of protection for
    the respondent must avoid the temptation to begin by asking: where is the harm
    in allowing the respondent to proceed with some degree of anonymity and without
    her personal information being available to the media?  Rather, the court must
    ask: has the respondent shown that without the protective orders she seeks
    there is a serious risk to the proper administration of justice?

(iii)
    Freedom of Expression and the Open Court Principle

[33]

In approaching the necessity branch of the inquiry, the high
    constitutional stakes must be placed at the forefront of the analysis.  Freedom
    of expression, including freedom of the press and other media communications,
    is a constitutionally protected fundamental freedom.  The constitutional right
    to freedom of expression protects the medias access to and ability to report
    on court proceedings.  The exercise of this fundamental freedom in the context
    of media coverage of court proceedings is essential to the promotion of the
    open court principle, a central feature of not only Canadian justice, but
    Canadian democracy:
Canadian Broadcasting Corp. v. Canada (Attorney General)
,
    2011 SCC 2, [2011] 1 S.C.R. 19, at paras. 1-2;
Vancouver Sun (Re)
, 2004
    SCC 43, [2004] 2 S.C.R. 332, at para. 26;
Ottawa Citizen Group Inc. et al.
    v. R.
(2005), 75 O.R. (3d) 590 (C.A.), at paras. 50-55;
R. v. Canadian
    Broadcasting Corporation
, 2010 ONCA 726, 102 O.R. (3d) 673, at paras.
    22-24.

[34]

Limits on freedom of expression, including limits that restrict media
    access to and publication of court proceedings, can be justified.  However, the
    centrality of freedom of expression and the open court principle to both
    Canadian democracy and individual freedoms in Canada demands that a party
    seeking to limit freedom of expression and the openness of the courts carry a
    significant legal and evidentiary burden.  Evidence said to justify
    non-publication and sealing orders must be convincing and subject to close
    scrutiny and meet rigorous standards:
R. v. Canadian Broadcasting Corp.
,
    at para. 40;
Toronto Star Newspapers

Ltd. v. Ontario
(2003), 67
    O.R. (3d) 577 (C.A.), at para. 19, affd 2005 SCC 41, [2005] 2 S.C.R. 188, at
    para. 41; see also
Ottawa Citizen Group
, at para. 54.

V

STANDARD OF REVIEW

[35]

As I have already indicated, the motion judge applied the correct legal
    principles to the facts as she found them.  Normally, this kind of exercise attracts
    a deferential standard of review:  see e.g.
Bragg Communications
, at
    paras. 36, 100-103.  However, in
Dagenais v. Canadian Broadcasting Corp.
,
    [1994] 3 S.C.R. 835, at pp. 864-65, Lamer J. for the majority held that any
    discretionary order banning publication must be consistent with
Charter
principles and that, if the order goes beyond the scope tolerated by the proper
    application of
Charter
principles, the making of the order constitutes
    an error of law.  The same analysis has been applied to sealing orders:
Ottawa
    Citizen Group,
at para. 26.

[36]

Although
Dagenais
and
Ottawa Citizen Group
both involved
    prerogative writ challenges to non-publication and sealing orders, I see no
    reason to characterize the nature of the decision differently because it is
    challenged by way of appeal rather than prerogative writ.  I note that in
Mentuck
,
    an appeal to the Supreme Court pursuant to s. 40 of the
Supreme Court Act
,
    R.S.C. 1985, c. S-26, the court, without alluding to the standard of review,
    reviewed the orders made by the trial judge using a correctness standard:
Mentuck
,
    at paras. 41-43, 46-47; see also
Sierra Club of Canada
, at para. 48.

[37]

The characterization of non-publication and sealing orders that are not
Charter
compliant as errors in law strongly implies a review of those orders on a
    correctness standard.  In my view, the motion judges decision should be
    reviewed on a correctness standard.  However, as I will explain in my review of
    the evidence, I am also satisfied that the motion judges finding that the
    orders were necessary to prevent a serious risk to the proper administration of
    justice was unreasonable on the evidence proffered by the respondent.
    Consequently, even on a deferential standard of review, the orders cannot
    stand.

VI

SHOULD THE ORDER HAVE BEEN GRANTED?

(i)

Dr. Quans Evidence

[38]

Dr. Quan first saw the respondent in March 2010, about one month after
    Williams was charged.  He has continued to see her about once a month since
    then.  Dr. Quan described the respondent as initially devastated by the
    revelations about Williams.  She was shocked, confused, unable to sleep, unable
    to focus and she had difficulties with her memory.  The respondent felt as
    though her entire life had been turned upside down.  She found herself
    continually thinking about Williams victims.

[39]

In the weeks immediately following the revelations, the respondent could
    not stay in the family home or go to work.  Within about two to three months,
    she had returned to her home and was working full time at her former position.

[40]

The respondent has no immediate family, but does have strong support
    from a group of close friends and neighbours.  Her employer and co-workers have
    been supportive.  The respondents job is a demanding but fulfilling one.  It
    is very important to her.

[41]

Dr. Quan indicated that the respondent improved quite quickly after the
    intense initial shock of the disclosures about Williams.  She had made
    significant gains by the summer of 2010.  Dr. Quan reported continued progress
    in December 2010, despite the very intense publicity during the trial
    proceedings in October.  The respondent had wisely mitigated the impact of
    those proceedings on her by leaving the country for a holiday while those
    proceedings were ongoing.

[42]

Dr. Quan reported that the respondents physical symptoms included
    weight loss, back pain, headaches, and temporomandibular joint dysfunction
    caused by clenching her teeth.  She also exhibited depressive
symptomatology
of a moderate degree of
    severity, anxiety of a moderate degree of severity, ongoing symptoms of
    emotional shock, and certain post-traumatic stress disorder symptoms of a
    moderate degree of severity.  She had not required hospitalization, medication
    or treatment other than her monthly meetings with Dr. Quan.

[43]

Dr. Quan stressed that the respondent was very apprehensive about the
    publicity that would flow from her divorce proceedings.  Each wave of publicity
    precipitated by a court proceeding increased her anxiety and presented coping
    challenges for her.  The respondent believed that her job was threatened by the
    ongoing media coverage connecting her to Williams.

[44]

Dr. Quan believed that obtaining a divorce and related corollary relief
    was important to the respondent as it would enable her to make a complete break
    from Williams. This break was important to her emotional wellbeing.

[45]

The tenor of Dr. Quans opinion is captured in his letter to counsel in
    December 2010, his report in January 2011 and his affidavit in February 2011.
    In the report, Dr. Quan stated:

[The respondent] is a private individual and she
    does need calm, peace and quiet in order to continue functioning normally.  She
    currently feels that she has no privacy left.  If pushed beyond her ability to
    cope, [the respondent] will definitely become more seriously ill and most
    likely incapable of working any further.  She has been successful in her
    workplace through sheer drive, determination and effort despite significant
    emotional distress and problems.  If pushed further by constant invasions of
    her privacy, there is a very strong possibility that [the respondent] will
    deteriorate and be incapable of functioning at her current level of ability.

[The respondent] is intending to seek a divorce from
    her husband.  I support this decision since it will be of therapeutic benefit
    to her.  However, I fear the added media attention this would attract would be
    severely detrimental and that it would probably result in a deterioration of
    her emotional heath.

[46]

In the letter, Dr. Quan opined:

[T]here is a very real and grave potential that her
    fragile recovery can be seriously compromised if she cannot be protected from
    the persistent, insistent and incessant efforts of the media to gain entry into
    her private life.

[The respondent] has made a very concerted and
    courageous effort to return to a normal productive life dedicated to the common
    good.  These efforts are at risk of being destroyed by the unwanted, undeserved
    and unproductive efforts of media to meddle in her private life.

[47]

In his affidavit dated February 2, 2011, Dr. Quan reiterated the same
    concerns:

[6] In particular I was concerned that [the respondents]
    precarious mental and emotional state would be imperilled if she continued to
    be the subject of media harassment regarding her private life and Mr. Williams.

[...]

[19] [...The respondent] currently has a very
    tenuous hold on her mental health and is a mere shadow of her usual self.

[20] [The respondent] requires calm, peace and quiet
    if she is to continue functioning normally, which I believe will not occur if
    her application for divorce plays out in the media.

[21] In particular, her employment has been what has
    enabled her to keep what remains of her mental health intact.  [The respondent]
    is particularly distressed and threatened that she will be unable to continue
    her current position if the media onslaught continues.

[22] I believe that if pushed further by constant
    invasions of her privacy, there is a very strong possibility that [the
    respondent] will deteriorate and be incapable of functioning at her current
    level of ability.

[48]

Dr. Quan did not offer any opinion as to whether the respondent would
    seek a divorce if she was not guaranteed the kind of anonymity and privacy she
    sought through the non-publication and sealing orders.

[49]

Dr. Quan acknowledged in cross-examination that he had virtually no
    firsthand knowledge of any of the media coverage as it related to the
    respondent.  He testified that he did his best not to read any of the newspaper
    reports that referred to the respondent.

[50]

Dr. Quan was also cross-examined about the impact of the publicity on
    the respondents employment.  He agreed that he had no contact with anyone at
    the respondents place of employment and had no knowledge of how, if at all,
    the media coverage could affect that employment.  Dr. Quan acknowledged that he
    understood from the respondents comments to him that her employer had been
    supportive during the ordeal.

(ii)
    Assessing Dr. Quans Evidence

[51]

Counsel for the appellants argued that Dr. Quans evidence was not
    admissible in that it was based on statements made to him by the respondent.
    Counsel submitted that without an affidavit from the respondent attesting to
    the truth of what she said to Dr. Quan, and without affording the appellants
    the opportunity to test her assertions by cross-examination, Dr. Quan could not
    rely on the respondents statements for their truth.

[52]

I do not agree that Dr. Quans evidence was inadmissible.  Dr. Quan is a
    qualified clinical psychiatrist.  He saw the respondent about a dozen times
    between March 2010 and March 2011.  He based his clinical judgment as to the
    respondents mental state on his observations of her over one year, the results
    of certain psychological tests he administered, a report from the family doctor,
    and things said to him by the respondent.  These are sources that clinical
    psychiatrists routinely look to when forming their opinions.  Dr. Quan was
    entitled to advance the opinion he did:  see
R. v. Lavallee
, [1990] 1
    S.C.R. 852.

[53]

There is, however, force to the appellants submission that the absence
    of any affidavit from the respondent significantly undermines the weight that
    can be given to Dr. Quans opinion.  Without evidence from the respondent, much
    of what Dr. Quan said in his letters and reports is properly characterized as
    speculation and assumption.

[54]

It is clear that Dr. Quans opinion as to the need for the
    non-publication and sealing orders was premised on his belief that the media
    had engaged in an unrelenting and very intrusive invasion of the respondents
    privacy beginning when Williams was charged and continuing through to the
    proposed divorce proceedings.  Dr. Quans letters to counsel and his report are
    replete with phrases like the media onslaught, the media harassment
    regarding her private life, the constant invasions of her privacy, the
    media feeding frenzy, the unwanted, undeserved and unproductive efforts of media
    to meddle in her private life and the persistent, insistent and incessant
    efforts of the media to gain entry into her private life.

[55]

There is quite simply no evidence to support any of these
    characterizations.  The respondent was clearly the person who could have spoken
    most directly to her experiences with the media and the nature and degree to
    which her privacy had been invaded by the media.  She chose not to do so.

[56]

In the same vein, Dr. Quan expressed the view that the publicity
    surrounding the proposed divorce proceeding could adversely affect the
    respondents employment which in turn could cause significant damage to her
    emotional wellbeing.  Once again, there was no evidence to suggest any possible
    harm to the respondents employment.  If the potential for that harm existed,
    the respondent or her employer were the logical persons to give that evidence.

[57]

Assuming that Dr. Quans opinion goes so far as to assert a real risk
    that the respondent would suffer the degree of emotional harm required to
    engage the public interest in maintaining access to the courts, that opinion
    rests entirely on his assumption that the respondent would be subject to media
    harassment occasioned by persistent, insistent and incessant efforts to invade
    her privacy.  These assumptions have no foundation in the evidence.
    Consequently, Dr. Quans opinion cannot be said to provide the kind of
    convincing evidence needed to meet the rigorous standard demanded by the
    necessity branch of the
Dagenais
/
Mentuck
test.

[58]

I also have difficulty squaring Dr. Quans opinion as to the dire
    potential effect of publicity surrounding the divorce proceeding with the
    respondents reaction to the publicity surrounding the earlier court
    proceedings involving Williams.  She has endured, and I would say overcome, the
    worst of the media storm surrounding Williams.  After the intense initial
    shock, she has picked up the pieces of her life and gone about the business of
    living that life.  There is no reason to think that any publicity arising from the
    divorce proceedings will come remotely close to the publicity that surrounded Williams
    criminal proceedings at which Williams crimes and his confessions to those
    crimes were publicly examined in minute detail.  Any media attention arising
    from the divorce proceeding will surely be short-lived and hardly front page
    news.

[59]

Dr. Quans opinion is also contradicted by the unchallenged evidence
    concerning the fraudulent conveyance proceeding.  In that proceeding, the
    plaintiff, one of Williams sexual assault victims, claims that Williams
    fraudulently transferred the family home to the respondent.  The respondents
    statement of defence and the contents of her affidavit have been referred to in
    the media.

[60]

There was no evidence filed on this motion to suggest that the media
    coverage of the fraudulent conveyance proceeding has amounted to a feeding
    frenzy or has been persistent, insistent and incessant.  Perhaps, more to
    the point, there was no evidence filed on the motion that media access to the
    fraudulent conveyance proceeding and publication of material filed in that
    proceeding have in any way negatively affected the respondents ability to
    fully participate in that proceeding.  The medias reporting of the fraudulent
    conveyance claim and the absence of evidence of any adverse impact on the
    respondent are significant as there is likely to be an overlap between the
    issues in that proceeding and some of the issues that may arise in the divorce
    proceeding.

[61]

The evidence filed on the motion by the appellants of the media reaction
    to the proposed divorce proceeding also undermines Dr. Quans opinion.  On that
    evidence, a reporter from the Ottawa Citizen sought information about the
    potential divorce proceedings from the respondents lawyer.  He did not
    approach the respondent directly.  In the ensuing interview, counsel provided
    information, much of which the respondent now seeks to have cloaked in the
    non-publication and sealing orders.  That information was reported in the press
    in a matter of fact way.  There was no evidence filed on the motion that the
    media reporting of the respondents name, her intention to seek a divorce, and
    a generic description of the material that would be filed in the divorce
    proceeding had any negative impact on the respondent or had in any way affected
    her decision to proceed with the divorce action.

VII

CONCLUSION

[62]

The motion judge erred in law in exercising her discretion in favour of
    granting the non-publication and sealing orders.  The material presented by the
    respondent did not provide the kind of convincing evidence needed to satisfy
    the first branch of the
Dagenais
/
Mentuck
test.  It is
    consequently unnecessary to consider the second branch of that test.  The
    orders made by the motion judge must be set aside.

[63]

I would allow the appeal and with one modification set aside the sealing
    and non-publication orders made except to the extent that those orders were not
    challenged on appeal (see para. 7 above).  The one modification relates to the
    non-publication order made with respect to the medical information filed on the
    motion.  As indicated above (para. 6), the parties agree that the motion judges
    non-publication order referable to the medical information did not extend to
    the references to that information in her reasons.  The appellants did not challenge
    that part of the non-publication order.  I would vary that part of the order to
    provide that the non-publication order with respect to the medical information does
    not extend to references to that information found in either the motion judges
    reasons or these reasons.

[64]

The interim order made on consent at the oral argument of this appeal
    prohibiting publication of material filed or information referred to in this
    court where that material or information was subject to the orders made on the
    motion expires with the release of these reasons.  Normally, this courts order
    would take effect immediately.  However, given the subject matter of this
    order, unless it is held in abeyance for some brief period of time, the
    respondent would not have any meaningful opportunity to consider what steps, if
    any, she should take to challenge this order.  I would direct that the order of
    this court take effect 14 days after the release of these reasons.  The order
    of the motion judge and the interim order of this court will remain in effect
    until then unless otherwise ordered.

[65]

The appellants are entitled to their costs, if demanded, both here and
    on the motion.  I would fix the costs of the appeal in the amount of $15,000,
    inclusive of disbursements and HST.

[66]

The court was advised that the motion judge fixed the costs of the
    motion at $25,000 in favour of the respondent.  The parties cannot agree as to
    the appropriate order in respect of the costs of the motion.  This court is not
    in a position to fix those costs.  I would remit the matter of the costs of the
    motion to the motion judge.

RELEASED:
JAN 24 2012  DD

Doherty J.A.

I agree Robert P. Armstrong J.A.

I agree Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Mehedi v. 2052761 Ontario
    Inc., 2012 ONCA 46

DATE: 20120125

DOCKET: C54018

Cronk and Blair JJ.A. and Strathy J. (
ad hoc
)

BETWEEN

Golam Mehedi

Appellant

and

2052761
    Ontario Inc., Job Success,

M.A.
    Hameed and Wendell Lacombe

Defendants

Golam Mehedi, acting in person

Dale Smith, agent for the defendants

Heard: January 23, 2012

On appeal from the order of Justice G. Hainey of the
    Superior Court of Justice, dated June 23, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge held, contrary to the appellants contention,
    that [T]here was never a promise to find [the appellant] a job within any
    specified time frame or at any specified salary range.  He also concluded that
    there was no evidentiary basis for any of the appellants alleged causes of
    action, including fraud.  These factual findings  some of which were
    credibility based  were open to the trial judge on the record.  We see no
    basis for appellate intervention with his decision.

[2]

The appeal is therefore dismissed.  The respondents are entitled
    to costs of the appeal, fixed in the total amount of $2,000, inclusive of
    disbursements and all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Makarchuk v. Makarchuk, 2012
    ONCA 42

DATE: 20120123

DOCKET: C54263

Rosenberg and Feldman JJ.A. and Swinton J.

BETWEEN

Darwin Frederick Makarchuk

Applicant (Appellant)

and

Joan Bernice Makarchuk, and the said Joan Bernice
    Makarchuk as Trustee of the Estate of Michael Makarchuk, and Michele Andreanna
    Makarchuk

Respondents (Respondent in appeal)

Constantine Tsantis, for the appellant

Douglas Kearns, for the respondent

Heard and endorsed: January 20, 2012

On appeal from the order of Justice Patricia Hennessy of
    the Superior Court of Justice, dated August 9, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We have not been persuaded that the application judge erred in
    her interpretation of the Separation Agreement. Since the deceased never
    revoked his will, the gift in the will to the respondent stands. Accordingly,
    the appeal is dismissed. The motion for fresh evidence is dismissed. The
    respondent is entitled to her costs fixed at $3,000 inclusive of disbursements
    and H.S.T.


CITATION:
Martin-Vandenhende v. Myslik, 2012
          ONCA 53

DATE: 20120130

DOCKET: C53348

COURT OF APPEAL FOR ONTARIO

Blair and Juriansz JJ.A., and Pepall J. (
ad hoc
)

BETWEEN:

Janice Martin-Vandenhende

Plaintiff (Respondent)

and

Peter Myslik and Edward Myslik

Defendants (Appellants)

David M.  Miller, for the appellants

Tanya A. Pagliaroli, for the respondent

Heard: October 28, 2011

On appeal from the judgment of Justice Bruce G. Thomas of the
          Superior Court of Justice, dated January 31, 2011.

R.A. Blair J.A.:

Overview

[1]

During the afternoon of December 31, 2001 a Toyota Camry driven by Ms.
    Martin-Vandenhende and a GMC Sierra pickup truck driven by Peter Myslik collided.
    Both vehicles were travelling southbound on Erie Street in Ridgetown, Ontario,
    at the time, with Ms. Martin-Vandenhende in the lead.  She was in the process
    of making a left-hand turn into a driveway in order to return to her work at
    Home Hardware when the collision occurred.

[2]

The parties had differing versions of how the accident occurred, and it
    is the disputed circumstances surrounding the making of that left-hand turn that
    give rise to the issues on this appeal.  The trial judge did not resolve the
    conflicting testimony.  Instead, he proceeded to determine liability  as he put
    it  by taking the Myslik position at its highest.

[3]

The appellants argue that the trial judge erred in failing to resolve
    the conflicting testimony and either did not apply the evidence by taking the
    Myslik position at its highest or, if he did, he erred in finding that Peter
    Myslik was negligent or, at least, in failing to find that Ms. Martin-Vandenhende
    was contributorily negligent.  I agree that the trial judge erred  although
    not necessarily in finding Mr. Myslik negligent  and, for the reasons that follow,
    would allow the appeal and order a new trial.

Facts

[4]

It was a snowy New Years Eve.  Ms. Martin-Vandenhende left her work at
    Home Hardware at about 4 oclock and was proceeding southbound on Erie Street
    when she realized she had forgotten something.  She decided to return to the
    store to retrieve it.  Peter Myslik  then a high school student nine days
    short of his 17
th
birthday  was returning home from a hockey
    tournament with his father.  They were driving in his fathers new Sierra
    pickup, Peter at the wheel, his father in the passengers seat.

[5]

The Mysliks were travelling at the posted 60 kmph speed limit when they
    first saw the Martin-Vandenhende car about 200-300 yards ahead of them.  It was
    travelling at a slower speed (about 40 kmph) and the gap was closing between
    the two vehicles.  From this point the evidence of the parties diverges with
    respect to what happened leading up to the collision.

[6]

According to Ms. Martin-Vandenhende, she activated her left-turn signal
    and slowed to 20-30 kmph with the intention of turning left into a private
    driveway on the east side of the road in order to complete her turn and retrace
    her steps to pick up the forgotten article.  As she was about to make her left
    turn, and before her vehicle crossed the centre line of the road, she was
    struck violently from the rear.  The next thing she recalled was that her car
    was in the ditch on the opposite (east) side of the road and she was bleeding
    from the head and had a severe headache.

[7]

Ms. Martin-Vandenhende acknowledged that she could not recall looking in
    her rear view or side view mirrors or checking her blind spots to verify if
    there was any oncoming traffic from behind.

[8]

The Myslik version was somewhat different.  Both Peter and his father
    testified that when the two vehicles were about 100 yards apart, Ms. Martin-Vandenhende
    activated her
right-turn
signal and, as she did so, pulled her vehicle
    to the right with both right wheels on the right shoulder of the road.  She
    slowed to the point where, according to Peter, she was close to dead still.
    Peter thought that she was pulling over to let him pass and he decided to do so
    by pulling into the northbound lane and going by.  When the pickup was about
    20-30 yards behind and moving to the northbound lane, however, Ms. Martin-Vandenhende
    suddenly turned her vehicle left directly into the path of the Myslik pickup.
    According to Peters evidence, her right-hand turn indicator was still
    activated at the time she commenced her turn.  Neither Peter nor his father saw
    a left-turn signal.

[9]

When Peter saw the Martin-Vandenhende vehicle turn left, he braked and
    attempted to steer the pickup toward the right in the hopes of passing Ms.
    Martin-Vandenhende on the right because it seemed that she was fully into her
    left turn.

[10]

Ms. Martin-Vandenhende testified that she did not pull her vehicle onto
    the right-hand shoulder of the road and that she did not activate her
    right-hand turn signal.

[11]

The parties accept that the actual collision took place while both
    vehicles were in the southbound lane.  The trial judge concluded that the
    Martin-Vandenhende vehicle was heavily damaged on the left rear corner,
    consistent with the vehicle being slightly turned to the left when hit from the
    rear.  Peter Myslik testified that if he had not turned to the right he would
    have collided with the driver door on the other vehicle.

[12]

Damages were settled.  The trial proceeded on the issue of liability
    only.  The trial judge found Peter Myslik to be totally responsible.

Analysis

[13]

In my view, the trial judge initially went astray when he failed to
    resolve the divergent testimony between the parties on the crucial factual
    issues surrounding which turning signal Ms. Martin-Vandenhende activated, and
    when and how she manoeuvred her vehicle just prior to the collision.  This
    error, in turn, led to other flaws in his reasoning.  In particular, although
    he purported to determine the issues on the basis of the Myslik position taken
    at its highest, he does not appear to have done so in fact.  Rather, he constructed
    his liability conclusions on facts that  although they may have been open to
    him to find, had he resolved the credibility conflicts in the evidence  are
    not drawn from a view of the evidence taking the Myslik position at its
    highest.

[14]

Let me explain.

Failure to Make
    Factual Findings

[15]

A trial judge has an obligation to make factual findings on conflicting
    evidence with respect to material facts that were essential to a proper
    determination of the issues before him or her.  As Denning L.J. observed, in
Jones
    v. National Coal Board
, [1957] 2 Q.B. 55, at p. 64, it is the judges role
    at the end to make up his mind where the truth lies.  This Court expressed a
    similar sentiment a year earlier when it said that a trial judge must make the
    findings of fact that enable the Court to say whether or not there is liability
    involved: see
Waring v. Jarvis
, [1956] O.J. No. 246 (C.A.), at paras. 4-5.
    See also
Aujla v. Hayes
(1997), 100 O.A.C. 129 (C.A.), at para. 31.  The
    fact-finding exercise in itself brings a certain discipline and rigour to a
    trial judges analysis of the evidence and guards against imprecise thinking
    and the risk of a case being decided on the basis of facts that were not
    actually found.

[16]

As Mr. Miller points out on behalf of the appellants, it was incumbent
    on the trial judge to make a number of findings of fact in order to resolve the
    issues of liability.  These included whether:

a)

Ms.
    Martin-Vandenhende pulled her vehicle over to the west (right) shoulder of the
    road, or continued to travel down the southbound lane of Erie Street right up
    until the time of the collision;

b)

she
    activated her right-hand turn signal as she pulled her vehicle onto the west
    shoulder of the road;

c)

she slowed
    almost to a stop in the process of doing this;

d)

Peter
    Myslik reasonably believed Ms. Martin-Vandenhende was inviting him to pass her
    to the left by engaging in this manoeuvre;

e)

Ms.
    Martin-Vandenhende suddenly commenced a left-hand turn from the right shoulder
    of the road directly into the path of the Myslik vehicle;

f)

Ms.
    Martin-Vandenhende left her right-hand turn signal activated or had activated
    her left-hand turn signal prior to the collision; and

g)

Peter
    Myslik admitted fault to Ms. Martin-Vandenhende in a conversation she alleges
    to have had with him while his father was calling emergency services.

[17]

The failure to make these findings of fact reveals that although the
    trial judge professed to take the Myslik position at its highest, he does not
    appear to have done so.

[18]

The operative portions of the trial judges liability analysis are found
    in the following portions of his reasons:

[21]  I accept the position taken by the plaintiff
    to this extent.  The collision here on all the evidence took place entirely in
    the southbound lane of Erie Street.
I am unable to resolve the divergent
    testimony of the signalling of the Martin vehicle, but taking the Myslik
    position at its highest
, the Martin vehicle was plainly visible ahead.  It
    moved from a position of having its right tires just off the paved southbound
    lane onto the shoulder and then moved back to the left so that its left tires,
    while close to the centre line with the front wheels turned somewhat to the
    left, were still fully in the southbound lane.  The defendants vehicle then
    collided with the left rear corner of the Martin vehicle.  The move to the left
    by Martin happened when Peter Myslik was still 20-30 yards away.  He locked up
    his brakes and slid into the rear of the Martine vehicle.

[22]  If in fact Janice Martin was signalling a
    move to the right,
while perhaps confusing to Peter Myslik
, it
    nonetheless does not detract from his obligation to have his vehicle on such
    control that on these road conditions he can stop without colliding with her
    vehicle no matter what she chooses to do, within her own lane.  That is so even
    recognizing that Martin took no steps to see what was behind her in the
    southbound lane.

...

[26]  It is my view that Peter Myslik was an
    inexperienced driver, proceeding too quickly for the road conditions, who when
    faced with a slow moving vehicle in front of him,
perhaps giving him
    inconsistent signals
, failed to have his vehicle under the necessary
    control to avoid this collision. [Emphasis added.]

[19]

Respectfully, this analysis does not reflect the Myslik evidence taken
    at its highest.

[20]

For example, the trial judge gave little, if any, weight to the evidence
    that the Martin-Vandenhende vehicle slowed almost to a complete stop while
    pulling over onto the shoulder of the road.  In addition, the statement that
    the Martin-Vandenhende vehicle [had] its right tires
just off
the paved
    southbound lane onto the shoulder (emphasis added) does not accurately reflect
    the evidence of the Mysliks, suggesting as it does that the vehicle had barely
    left the roadway and feeding the respondents argument that Ms. Martin-Vandenhende
    never stopped and never exited her lane.

[21]

Such a finding might have been open to the trial judge, but it does not
    reflect Peter Mysliks testimony.  He acknowledged in cross-examination that
    the shoulder on the right side of the southbound lane on Erie Street was
    narrower than most, but nonetheless maintained that its not small by any
    means.  He remained resolute that Ms. Martin-Vandenhende was definitely on
    the shoulder and it was visible from where [he] was driving in the southbound lane
    that she was definitely pulled off to the right, and that she was off enough
    that [he could] judge that she was on the shoulder.

[22]

Coupled with the foregoing misconceptions, the trial judge made an
    important finding that is inconsistent with the Peter Mysliks testimony.  As
    noted in para. 22 of his reasons, cited above, the trial judge found that if in
    fact Ms. Martin-Vandenhende was signalling a move to the right, the signal
    would have been perhaps confusing to Peter Myslik.  At para. 26, the trial
    judge concluded that she was perhaps giving him inconsistent signals.  However,
    there is no room on Mr. Mysliks evidence for a finding that he was confused,
    or that Ms. Martin-Vandenhende was giving him inconsistent signals.  His
    evidence was unequivocal: Ms. Martin-Vandenhende activated her right-turn
    signal only, pulled off onto the right shoulder of the road, and slowed down to
    a near stop in a manner that led him to believe he was being invited to go by
    her.  Peter Myslik believed he was being signalled by the driver of the vehicle
    ahead of him to pass it on the left, and began his manoeuvre to do so safely.
    On his evidence, he was not confused about anything nor had he received
    inconsistent signals.

[23]

Had the trial judge resolved the conflicting credibility issues with
    respect to the turning signals and the manner in which Ms. Martin-Vandenhende
    manoeuvred her vehicle, he may well have rejected Mr. Mysliks testimony and
    found that he was confused by inconsistent signals and that the Camry was not
    really off the road.  On the other hand, he might have accepted Mr. Mysliks
    testimony and rejected that of Ms. Martin-Vandenhende  a viewpoint that could
    well have led him to consider the liability of Peter Myslik in a different
    light (something to which I will return).  But the trial judge could not make the
    findings that Mr. Myslik was confused and receiving inconsistent signals or
    that the Camry tires were just off the southbound lane,
taking his
    testimony at its highest
.

[24]

Taking the Myslik position at its highest would have required the
    liability issue to have been determined on the basis of at least the following
    evidence:

(a) Ms. Martin-Vandenhende
    activate her right turn signal and moved her vehicle over onto the right
    shoulder of Erie Street when the Myslik vehicle was approximately 100 yards
    behind her, slowing down to a near complete stop.

(b)  Peter Myslik believed
    that she was pulling over to let him pass, and turned his vehicle towards the
    centre of the road in order to do so on the left.

(c)  When the Myslik
    vehicle was only a short distance behind the Martin-Vandenhende vehicle, Ms.
    Martin-Vandenhende suddenly turned her vehicle to the left directly into the
    path of the Myslik vehicle.

(d)  Ms. Martin-Vandenhende
    did not activate her left turn signal prior to the collision.  In fact, the
    right turn signal was still activated when she commenced her left turn.

(e)  Peter
    Myslik applied his brakes and steered his vehicle hard to the right in order to
    avoid striking the Martin-Vandenhende vehicle.  The front left of the Myslik
    vehicle struck the rear of the Martin-Vandenhende vehicle which was angled
    sufficiently into a left turn that if Peter Myslik had not made the sharp right
    turn, the front of his vehicle would have struck the driver door on the left
    side of the Martin-Vandenhende vehicle.

[25]

The trial judges failure to make these findings of facts lead to a
    flawed liability analysis, in my view.

Flawed Liability
    Analysis

[26]

The trial judge addressed the common law respecting the onus on a
    following driver, as expressed by this Court in
Beaumont v. Ruddy
,
    [1932] O.R. 441 (C.A.), at p. 442:

Generally speaking
,
    when one car runs into another from behind, the fault is in the driving of the
    rear car, and the driver of the rear car must satisfy the Court that the
    collision did not occur as a result of his negligence. [Emphasis added.]

[27]

He also relied upon the following too closely provisions of s. 158(1)
    of the
Highway Traffic Act
R.S.O. 1990, c. H.8:

The driver of a motor
    vehicle or street car shall not follow another vehicle or street car more
    closely than is reasonable and prudent having due regard for the speed of the
    vehicle and the traffic on and the conditions of the highway.

[28]

In the end, however, the trial judge treated the case as a rear-end
    collision case in which an inexperienced driver, perhaps confused by
    inconsistent signals from the lead vehicle, was proceeding too quickly without
    having his vehicle under proper control in the circumstances and who, as a
    result, failed in his obligation to have his vehicle on such control that on
    these road conditions he can stop without colliding with her vehicle
no matter
    what she chooses to do, within her own lane
 (emphasis added). This
    approach was neither justified in law or on the facts, taking the Myslik position
    at its highest.

[29]

The approach is unjustified on the facts because, as outlined above, it
    is not compatible with the Myslik evidence taken at its highest, which is the
    basis upon which the trial judge purported to impose liability.  For one thing,
    Ms. Martin-Vandenhende did not stay within her own lane as the trial judge
    appears to have found.  He was correct in that respect in terms of whether her
    vehicle had crossed into the northbound lane, but on the Myslik testimony she
    left her southbound lane and moved her vehicle well onto the right hand
    shoulder of the road.  This was not staying within her own lane and was
    important in terms of the signal Peter Myslik believed Ms. Martin-Vandenhende
    was sending him, inviting him to pass her on the left.

[30]

More generally, though, on the Myslik version of events, Peter Myslik provided
    an explanation as to why the accident did not occur as a result of his
    negligence but was instead caused by the negligence of Ms. Martin-Vandenhende,
    or by a combination of the negligence of each driver  the onus contemplated in
Beaumont v. Ruddy
.  The trial judge did not reject that explanation.  He
    simply declined to make the necessary factual findings in order to resolve the
    conflicting testimony.  On that basis it could not be said one way or the other
    whether the
Beaumont v. Ruddy
onus had been satisfied.

[31]

In addition, the trial judges approach was wrong in law, in my view.  The
    common law principle enunciated in
Beaumont v. Ruddy
does not prescribe
    that a following driver is
always
at fault if he or she runs into
    another from behind.  It simply states that
generally speaking
this will
    be the case, and shifts the onus to the following driver to show otherwise.
    There is no principle of law of which I am aware that automatically fixes a
    following driver who runs into another vehicle from the rear with liability no
    matter what [the lead driver] chooses to do, within [his or] her own lane.  Subject
    to the laws general bias in favour of fault on the part of the following driver
    and the following too closely jurisprudence, liability  as in any negligence
    case  depends upon whether the following driver was acting reasonably in the
    circumstances and, conversely, whether the lead driver was as well.

Conclusion

[32]

The upshot of the foregoing analysis is twofold, for purposes of the
    appeal.

Contributory
    Negligence

[33]

Section 3 of the
Negligence Act
, R.S.O. 1990, c. N.1 requires the
    judge to apportion damages if fault or negligence is found on the part of the
    plaintiff that contributed to the damages.

[34]

The trial judge did not directly address the issue of contributory
    negligence, but he did refer to three authorities cited to him by the
    appellants, which he said all [found] fault in the operator of the lead
    vehicle when abruptly changing lanes, or directions of travel, without
    signalling or ensuring the way was clear.  The three authorities were
Adshade
    v. Jackson
(1987), 82 N.S.R. (2d) 8 (C.A.);
Wierenga v. Hemmons
,
    1993 Carswell BC 1845 (S.C.); and
Schleiermacher v. Neider
(1996) Carswell
    BC 2761 (S.C.).

[35]

The trial judge distinguished all three cases on the basis that in all
    of them the offending lead vehicle had changed lanes and in none of them had
    the point of the collision been in the single lane originally travelled by both
    drivers.  The flaw in the trial judges distinction is that it is rooted in a
    version of the facts that he was not entitled to take if he were determining
    liability on the basis of the Myslik position at its highest, for the reasons
    outlined above.  If the Myslik position is taken at its highest, Ms. Martin-Vandenhende
did
change lanes by moving onto the shoulder.

[36]

Particularly telling as an example of how his approach to liability and
    contributory negligence was based on a non-Myslik version of events, is the
    trial judges treatment of the
Schleiermacher
decision.  At para. 29 of
    his reasons he said:

In
Schleiermacher
the offending vehicle was
    off the road fully on the shoulder and then, as it was being passed, re-entered
    the roadway without signalling cutting off the other vehicle.

[37]

Far from being
distinguishable
on that basis, however,
Schleiermacher
 with the exception of the vehicle being fully on the shoulder as opposed to
    being partially but definitely on the shoulder  is a case
very similar
to the facts as presented by the Mysliks.  Indeed, here there is the added
    dimension of the lead drivers conduct apparently leading the following driver
    to believe that he was being invited to pass the lead vehicle on the left.
Schleiermacher
is not binding of course, but it is instructive.  The law as presented to the
    trial judge provided a basis upon which he should have considered Ms. Martin-Vandenhendes
    contributory negligence.

[38]

In concluding that the trial judge erred in his liability analysis, I do
    not think it matters whether the standard of review on this issue is
    correctness or palpable and overriding error, or something in between the two.
    On the Myslik version of events, taken at its highest, I am satisfied that
    the trial judges failure to find that Ms. Martin-Vandenhende was at least
    contributorily negligent amounted to palpable and overriding error.

[39]

Given the facts outlined in para. 24 above, it is inconceivable to me
    that the driver of a lead vehicle, who signals a turn to the right, pulls her
    vehicle off to the side of the road and slows almost to a dead stop  thereby
    reasonably signalling to a following vehicle that she intends to let the
    following vehicle pass  and then suddenly, without warning and without even
    changing to a left-turn signal, cuts across in front of the oncoming vehicle to
    make a sharp left turn across the roadway, is not at least contributorily
    negligent.  This was not a case about a lead car simply stopping suddenly or
    engaging in some confusing manoeuvres within its own lane, and the driver of a
    following vehicle not having proper care and control of the following vehicle
    sufficient to enable him or her to react to the sudden stop.  This was a case
    in which the lead driver  based on the Myslik evidence taken at its highest
    operated her vehicle in a fashion that sent a clear signal to the following
    driver that she was pulling off the road to let him pass.

[40]

In my view, a new trial is required to resolve the issue of contributory
    negligence.

Peter Mysliks
    Liability

[41]

Although I am more reluctant to do so, I would also order a new trial on
    the issue of Peter Mysliks liability.

[42]

In doing so, I am mindful that, even taking the Myslik testimony at its
    highest, there may well have been evidence upon which the trial judge could have
    justified a finding of liability on Peter Mysliks part.  However, as I alluded
    to earlier in these reasons, it cannot be said with assurance that the trial
    judge would necessarily have come to that conclusion if he had made the
    required findings of fact and if those findings had favoured the Mysliks.  As I
    have tried to explain, I do not believe that he was approaching his
    determination of liability through the lens of the Myslik case taken at its
    highest.

[43]

At a new trial, the trial judge might arrive at the same conclusion that
    the trial judge here arrived at, based on findings of fact favouring Ms.
    Martin-Vandenhende.  But he or she might reach a different conclusion, based on
    findings of fact in favour of the Mysliks, too.  I am not satisfied that a new
    trial should only be ordered on the question of contributory negligence.

Disposition

[44]

For all of the foregoing reasons, I would allow the appeal and order a
    new trial.

[45]

The appellants are entitled to their costs of the appeal, fixed in the
    amount of $14,513.96, including disbursements and all applicable taxes.  I
    would leave the costs of the trial to be disposed of by the judge hearing the
    new trial.

R.A. Blair J.A.

I agree R.G. Juriansz
    J.A.

I agree S.E. Pepall J.

RELEASED:  January 30.2012


COURT OF APPEAL FOR ONTARIO

Musselman v. 875667 Ontario Inc. (Cities
    Bistro), 2012 ONCA 41
DATE: 20120124
DOCKET: C52502
Doherty, LaForme and Hoy JJ.A.
BETWEEN
Gloria Musselman, V. Gerald Musselman, Karey
    Musselman, Carolyn Musselman, Mark Musselman, Leanna Wigboldus by her
    Litigation Guardian Carolyn Musselman and Lucas Musselman by his Litigation
    Guardian Mark Musselman
Plaintiffs (Appellants)
and
875667 Ontario Inc. carrying on business as
    Cities Bistro, BDO Dunwoody Limited, Trustee in Bankruptcy, the Corporation of
    the City of Toronto, Ida Dominelli, Minas Tzortzis, Stella Tzortzis and Fred
    Dominelli
Defendants (Respondents)
Jerome R. Morse and John J. Adair, for the plaintiffs
    (appellants)
Louis A. Frapporti and P. Kennedy, for the defendants
    (respondents), Dominelli
Heard:  January 18, 2012
On appeal from the judgment of Justice R.D. Reilly of the
    Superior Court of Justice, dated June 1, 2010.
ENDORSEMENT
[1]

The appellant slipped and fell on the stairs leading from the
    restrooms to the main floor of the restaurant.  She suffered catastrophic
    injuries.  As analyzed by the trial judge, the outcome of this case turned
    largely on whether the respondent (owner/landlord) was an occupier of the
    rented premises within the definition of occupier in the
Occupiers
    Liability Act
, R.S.O. 1990, c. O.2 (the
Act
).
[2]

The trial judge dealt at length with the applicable law and the
    relevant evidence (paras. 171-188).  As we apprehend the submissions, the
    challenge on appeal is not to the trial judges legal interpretation of occupier,
    but to his treatment of the relevant evidence.
[3]

Counsel for the appellant submits that the trial judge
    misapprehended three parts of the evidence.  Two of the misapprehensions relate
    to the substance of the evidence of the tenant, Brian Heasman.  The appellant
    submits that properly understood, Mr. Heasmans evidence established that the
    respondent had the necessary responsibility for and control over the premises
    to make him an occupier under the
Act
.
[4]

Counsel for the appellant also submits that the trial judge
    misapprehended the terms of the operative lease and, in particular, the meaning
    of clause 6 in that lease.  Counsel contends, that properly understood, that
    term placed inspection and repair responsibilities on the respondent thereby
    giving the respondent sufficient control and responsibility over the premise to
    make him an occupier under the
Act
.
[5]

We can address the two alleged misapprehensions of Mr. Heasmans
    evidence together.  At para. 183 of his reasons, the trial judge indicated that
    there was no evidence that he [the respondent] ever used the basement
    washrooms or descended the stairs.  At para. 186, the trial judge found that
    Mr. Heasman testified that the respondent was responsible for the exterior walls
    and roof of the building and Mr. Heasman was responsible for everything inside
    the premises.
[6]

We have examined the extracts from Mr. Heasmans evidence relied
    on by counsel in support of these submissions.  We have also considered the
    other parts of Mr. Heasmans evidence put forward by counsel for the
    respondent.  In our assessment, the trial judges interpretation of Mr.
    Heasmans evidence was reasonably available on the entirety of his evidence.
    At its highest, the appellants submissions demonstrate that certain of the
    extracts are capable of bearing a different interpretation.  That is not enough
    to find a misapprehension of the evidence warranting appellate interference.
[7]

The trial judges findings with respect to para. 6 of the lease
    appear at paras. 182 and 186 of his reasons.  At para. 182, he said:
Pursuant to paragraph 6 of the lease, Mr. Heasman had complete
    responsibility for repair and maintenance of the premises.
[8]

We think the trial judge correctly interpreted para. 6 of the
    lease.  He engaged in a careful and detailed analysis of many provisions of the
    lease, beginning with para. 4, which declared the lease to be a completely
    carefree net lease for the landlord.  Having regard to the entirety of the
    lease, we think the trial judge was correct in finding that para. 6 put
    complete responsibility on the tenant for repair and maintenance.  We accept
    counsel for the respondents submission that the exclusion of wear and tear
    from the tenants responsibility to maintain and repair does not place any
    obligation on the landlord to repair or inspect the property.
[9]

We would add that the trial judges finding that the respondent
    was not an occupier was based on his assessment of the entirety of the
    circumstances.  While the lease figured prominently in that analysis, the lease
    alone, much less one clause from the lease, was not determinative.  The conduct
    of the parties over the many years in which they were in a landlord/tenant
    relationship was also a significant consideration in determining whether the
    respondent was an occupier.  On the trial judges view of that conduct, it did
    not support the contention that the respondent had the necessary responsibility
    for or control of the premise to fall within the meaning of occupier under
    the
Act
.
[10]

We see no basis upon which to interfere with the trial judges
    finding of fact that the respondent was not an occupier.  He could not,
    therefore, be liable under s. 3 of the
Act
for the appellants most
    unfortunate injuries.
[11]

We add two further observations.  As we understood counsel for
    the appellant, the appellant does not rely on s. 8 of the
Occupiers
    Liability Act
.  In any event, as found by the trial judge (para. 187), we
    do not think s. 8 has any application.  However, if it does, then the exemption
    under s. 8(2) should operate to protect this respondent from any liability
    under s. 8.
[12]

Finally, counsel in his factum argued that the respondent could
    be liable in negligence apart from any liability in negligence as an occupier.
    Counsel did not make any oral argument in support of this submission and we see
    no basis on this record for a finding of negligence against the respondent if,
    as found by the trial judge, the respondent was not an occupier within the
    meaning of the
Act
.
[13]

The appeal is dismissed.  As agreed to by the parties, the
    respondent is entitled to costs of the appeal in the amount of $25,000,
    inclusive of disbursements and relevant taxes.
Doherty J.A.
H.S. LaForme J.A.
Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Nexus Solutions Inc. v. CEM
    Specialties Inc., 2012 ONCA 38

DATE: 20120119

DOCKET: C52467

Goudge, Epstein JJ.A., and Newbould J. (
ad
    hoc
)

BETWEEN

Nexus Solutions Inc.

Plaintiff (Appellant)

and

CEM Specialties Inc.
and Ontario Power Generation Inc.

Defendants (Respondent in appeal)

Scott Gallagher, for the appellant

Ross Nicholson, for the respondent

Heard: January 19, 2012

On appeal from the judgment of Justice W.A. Jenkins of
    the Superior Court of Justice, dated June 29, 2010.

APPEAL
    BOOK ENDORSEMENT

[1]

The appellant first argues that the trial judge erred in failing
    to find that a preliminary contract was concluded when Nexus submitted its
    proposal to CEMSI thereby accepting a CEMSI offer to, in good faith, support
    Nexus proposal.

[2]

We do not agree.  The trial judge found as a fact that the
    pattern of conduct between these parties required a purchase order to form a
    contract.  There was a clear basis in the evidence for doing so.  We find no
    palpable and overriding error in the trial judges conclusion that here there
    was no preliminary contract between the parties.

[3]

Secondly, the appellant argues that an oral contract was formed
    in a December 22, 2004 phone call.  Again the appellant faces an insurmountable
    finding of fact, in our view.  The trial judge carefully reviewed the evidence
    of the call and concluded that it did not support a finding of offer and
    acceptance.  There was a clear basis for that on the evidence and we see no
    error in his conclusion.  There is no basis for us to set it aside here.

[4]

The appeal is dismissed.  The respondent is entitled to partial
    indemnity costs fixed at $15,000 inclusive of disbursements and applicable
    taxes.