COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Psarros, 2021 ONCA 706

DATE: 20211008

DOCKET: C68231

Rouleau, Benotto and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Psarros

Appellant

Peter Psarros, acting in person

Mark Halfyard, appearing as duty
    counsel

Avene Derwa, for the respondent

Heard: October 6, 2021 by
    video conference

On appeal from the sentence imposed on February
    27, 2020, by Justice Jonathan Bliss of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant
    has abandoned his conviction appeal. As for the sentence appeal, we agree with
    the appellants submission that the sentence should be reduced.

[2]

Having
    recognized that the appellant was entitled to credit for 152 days of pretrial
    custody, the sentencing judge ought to have given him credit for this time at
    the rate of 1.5 to 1. He did not do so and gave no reason why the usual credit
    should not apply.

[3]

As a result,
    leave to appeal the sentence and the sentence appeal are granted. The sentence
    is reduced by 76 days. The conviction appeal is dismissed.

Paul Rouleau

M.L. Benotto J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jefferies, 2021 ONCA 712

DATE: 20211008

DOCKET: C69343

Fairburn A.C.J.O., Doherty and
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamie Jefferies

Appellant

Frank Addario, Sherif Foda, and Rick
    Frank, for the appellant

Matthew Asma, for the respondent

Amy Ohler and Eric Neubauer, for the intervener
    Criminal Lawyers Association

Heard and released orally:
    October 6, 2021

On appeal from the order denying
certiorari
and prohibition entered by Justice C. Stephen Glithero of the Superior Court of
    Justice on March 16, 2021, with reasons reported at 2021 ONSC 1983.

REASONS FOR DECISION

[1]

This is an appeal from the dismissal of an application
    for two forms of extraordinary relief. The application judge described the
    requests for relief as follows:

An order in the nature of prohibition to
    prohibit any judge of the Ontario Court of Justice from proceeding to hold the
    trial of the accused upon the counts of aggravated assault, assault causing
    bodily harm, common assault, two counts of mischief and three counts of breach
    release order, contained in Information No. 19005445, sworn June 20, 2019,
    presently outstanding in that court.

[and]

An order to quash the ruling of the Honourable
    Justice A.T. McKay to conduct the trial of
R. v. Jamie Jefferies
remotely via video conference released on February 18, 2021.

[2]

The application was dismissed on jurisdictional
    grounds.

[3]

Since the dismissal of the application for
    extraordinary relief, upon which this appeal is predicated, the appellants
    request for a full in-person trial has been accommodated. The appellant
    acknowledges today that his trial will continue in person on October 18, 2021,
    and it is his intention to proceed with that trial, regardless of any order
    this court may make, including if this court decides to hear the appeal today. In
    our view, in light of that concession, the appeal is moot.

[4]

Despite the fact that this court may find the
    appeal moot, the appellant still urges the court to hear the appeal because of
    what is said to be the strong public interest engaged. We decline to do so
    because:

1) The record in this case is wanting in relation to the issues the
    appellant asks to be decided.

2) The issues to be decided are not evasive of review in the context
    of the normal appellate process.

3) There is
    no evidence before us that would suggest a systemic problem that requires
    immediate resolution in the public interest. For example, there does not appear
    to be any serious, ongoing controversy over the limits of judicial authority in
    utilizing statutory provisions to excuse the attendance of justice system
    participants from criminal trials.

4) The
    appeal to this court is an appeal from a decision arising from an application
    for extraordinary relief and, as such, necessarily limits the scope of the
    appeal to this court. In our view, the issues raised on appeal are much better
    addressed in the context of a full appeal on the record.

[5]

The appeal is dismissed as moot.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sealy-Ward, 2021 ONCA 714

DATE: 20211008

DOCKET: C67860

Fairburn A.C.J.O., Doherty and
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Sealy-Ward

Appellant

Eric Granger, for the appellant

Genevieve McInnes, for the respondent

Heard and released orally: October
    4, 2021 by video conference

On appeal from the convictions entered
    by Justice Michelle OBonsawin of the Superior Court of Justice on April 29,
    2019, with reasons reported at 2019 ONSC 2647.

REASONS FOR DECISION

[1]

This is an appeal from conviction for multiple drug and firearm
    related offences.

[2]

Police officers stopped a vehicle after it made an unlawful U-turn. After
    detecting the odour of cannabis, the vehicle occupants were ordered out of the
    vehicle and arrested. A search incident to their arrest uncovered a number of
    things in the vehicle, including a few pounds of cannabis, MDA, drug
    paraphernalia, and a disassembled rifle with ammunition.

[3]

The appellant was tried before a judge alone. In a blended
Charter
    voir dire
, he claimed breaches of his ss. 7, 8, 9, 10(a), and 10(b)
    rights.

The trial judge provided extensive written reasons dismissing
    the
Charter
application. She also provided extensive written reasons
    for conviction.

[4]

This conviction appeal is predicated upon two alleged errors.

[5]

First, the appellant says that the trial judge failed to provide
    adequate reasons dismissing the
Charter
motion. Specifically, he
    claims that the trial judge failed to adequately address inconsistencies in the
    police evidence.

[6]

While we accept that there were inconsistencies in that evidence, the
    trial judge was under no obligation to describe and reconcile every such
    inconsistency. Rather, it was the trial judges duty to respond to what was
    relevant to the
Charter
application. She did that.

[7]

The trial judge turned her mind to the central issues involving: (1) why
    the vehicle was stopped and (2) why the appellant was originally removed from
    the car and arrested. The trial judge concluded that the officers evidence was
    consistent on key points involving the U-turn, all of which justified the
    vehicle stop. The trial judge also turned her mind to the differences between
    the officers in terms of how they described the smell emerging from the
    vehicle. One described it as the smell of fresh vegetative cannabis, while the
    other described it as the smell of both burnt and fresh vegetative cannabis.
    The trial judge explained why this inconsistency (one officer adding that he
    also smelled burnt cannabis) did not impact her assessment of the grounds for
    arrest. In our view, the trial judges reasons on these points are more than
    adequate.

[8]

The appellant also claims that the trial judges reasons for judgment
    fall short in the sense that she misapprehended evidence that had a material
    impact on the verdicts. Specifically, the trial judge is said to have
    misapprehended evidence as it relates to the location from which the
    appellants wallet was seized and the location where a padlock was found.

[9]

The respondent concedes the appellants first point, acknowledging that
    the trial judge appears to have incorrectly formed the view that the
    appellants wallet was found in the same knapsack that drugs and drug
    paraphernalia were located. The respondent acknowledges that is not so. The
    appellants wallet was actually seized during a search of his person.

[10]

Despite
    this misapprehension of evidence, we are satisfied that it had no impact on the
    verdicts.

[11]

The fact is that there was overwhelming evidence pointing to the
    appellants possession of the contraband found in the vehicle. That evidence
    includes the fact that the appellants former partner testified that, while the
    vehicle was registered under her name, it was owned by the appellant. There was
    also police evidence that they saw the appellant attempting to get into the
    driver seat of the vehicle upon the vehicle being stopped. That is, when the
    appellant saw the police, he changed his position with another vehicle
    occupant. There is also evidence of a combination lock having been found in a
    duffle bag in the trunk of the car. That bag contained a good deal of contraband.
    Importantly, the code to the combination lock that was found in that bag was
    located in the appellants wallet. This connected him directly to the duffle
    bag.

[12]

While
    the appellant claims that the trial judge misapprehended the evidence about the
    padlock, suggesting that there was no evidence to adequately support that it
    had been located in the duffle bag, that submission is belied by the record in
    this case. Therefore, in our view, there is no basis for the suggestion that
    the trial judge misapprehended the evidence about the padlock in this way.

[13]

Combined
    with the other evidence of possession and control, there was a substantial
    evidentiary basis upon which to convict.

[14]

The appeal is dismissed.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


WARNING

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

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

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

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

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

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

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

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

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

(b) on application of
    the victim or the prosecutor, make the order.

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

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simas-Mamani, 2021 ONCA 711

DATE: 20211008

DOCKET: C67388

Fairburn A.C.J.O., Doherty and
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zamir Simas-Mamani

Appellant

Craig Zeeh, for the appellant

Erica Whitford, for the respondent

Heard and released orally:
    October 4, 2021 by video conference

On appeal from the conviction entered by
    Justice Thomas Lofchik of the Superior Court of Justice on July 5, 2018 and the
    sentence imposed on July 27, 2018, with reasons reported at 2018 ONSC 4558.

REASONS FOR DECISION

[1]

The sole ground of appeal from conviction is the
    dismissal of a mid-trial application under s. 276 of the
Criminal Code
,
    R.S.C., 1985, c. C-46. We see no error in the trial judges exercise of his case
    management powers, dismissing this late-breaking application brought for the
    first time during the cross-examination of the complainant.

[2]

In any event, we see no basis upon which the application,
    as constituted at trial, could possibly have succeeded.

[3]

The conviction appeal is dismissed.

[4]

As well, we dismiss the sentence appeal. Although
    some mitigating factors were not specifically mentioned by the trial judge in
    the reasons for sentence, those factors would not have warranted a reduction in
    the eight-year sentence imposed, a sentence that was entirely fit in the
    circumstances.

[5]

Leave to appeal sentence is granted. The
    sentence appeal is dismissed.

Fairburn
    A.C.J.O.

Doherty
    J.A.

David
    Watt J.A.


WARNING

An order restricting publication in
    this proceeding was made under s. 517 of the
Criminal Code
and
    continues to be in effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or
    the accused intends to show cause under section 515, he or she shall so state
    to the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry
    is held, the accused in respect of whom the proceedings are held is discharged;
    or

(b)     if the accused in respect of whom the
    proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s.
    17]

R.S., 1985, c. C-46, s. 517; R.S.,
    1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2021 ONCA 705

DATE: 20211008

DOCKET: M52774

Strathy
    C.J.O. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Robert Williams

Applicant

Zachary Kerbel, for the applicant

Karen Papadopoulos, for the respondent

Heard: September 22, 2021 by
    video conference

[1]

A non-publication order under s. 517 of the
Criminal
    Code
, R.S.C. 1985, c. C-46,
was imposed in this matter at the bail hearing in the court below. That order
    precludes the publication, broadcast, or transmission of any evidence taken,
    information given, representations made, and reasons given.

[2]

The decision in
R. v. Williams
, 2021
    ONCA 705, contains information covered by that order.

[3]

Accordingly, the decision will be available on
    the Court of Appeal for Ontarios website once the non-publication order ceases
    to be in effect.

[4]

In the interim, a copy of the full decision is
    available at the Registry of the Court of Appeal for Ontario at 130 Queen
    Street West, Toronto.


COURT OF APPEAL FOR ONTARIO

CITATION:
Sbihat v. Nasar, 2021 ONCA 701

DATE: 20211008

DOCKET: C68867

Hourigan, Huscroft and Coroza
    JJ.A.

BETWEEN

Sameh
    Sbihat

Plaintiff/Appellant

and

Loay Abu Nasar, Darshan Singh
    Toor, Carmel Transport International Ltd. and AJM Toor Group Inc.

Defendants/Respondents

Todd J. McCarthy and Richard J.
    Campbell, for the appellant

David Zuber and Allison Pressé, for the
    respondents

Heard: October 6, 2021 by videoconference

On
    appeal from the order of Justice Mandhane of the Superior Court of Justice,
    dated November 10, 2020.

REASONS FOR DECISION

Introduction

[1]

This action arose out of a motor vehicle
    accident that occurred on April 28, 2016. The statement of claim was issued on
    April 23, 2018. The defendants Darshan Singh Toor and Carmel Transport
    International Ltd. were served with the statement of claim in January or
    February 2020  approximately 16 months after the six-month deadline prescribed
    by r. 14.08(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.
    The defendant AJM Toor Group Inc. was never served.

[2]

The appellant moved to validate service and
    extend the time for service. In his affidavit filed on the motion, the
    appellants former counsel explained that the non-service was caused by
    inadvertence and the failure of his staff to follow instructions. The motion
    was not opposed by the respondent Nasar. However, it was opposed by the
    remaining respondents (the Toor Respondents).

[3]

The motion was initially scheduled for October
    2020, but the appellants former counsel could not proceed on that date for
    medical reasons. The Toor Respondents consented to an adjournment on the
    understanding that the motion would be argued on the record already filed with
    the court. The appellants former counsel agreed to this undertaking in
    writing. Despite that agreement, the appellants former counsel served and
    filed a supplementary affidavit six days before the motion was to be argued.

[4]

The motion was ultimately heard on November 10,
    2020. The motion judge had to consider two issues: (1) whether to admit the
    appellants supplementary affidavit, and (2) whether to validate service and
    grant the extension of time for service.

[5]

The motion judge refused to consider the
    appellants supplementary affidavit because the appellant had previously
    consented not to file additional materials. Accordingly, she held that it was
    improper for the appellant to attempt to resile from that agreement.

[6]

Ultimately, the motion judge dismissed the
    motion. She found that the court should not extend the time for service where
    to do so would prejudice the respondents, and the onus was on the appellant to
    show that there was no prejudice. According to the motion judge, the appellant
    had provided an insufficient explanation for the delay and had adduced no
    evidence of a lack of prejudice beyond a bald assertion that the respondents
    would suffer no prejudice. The motion judge further found that the Toor Respondents
    would suffer actual prejudice in their ability to conduct investigations,
    preserve evidence, and obtain timely medical assessments.

Issues

[7]

The appellant makes two submissions on this
    appeal. First, he argues that this court should admit fresh evidence.  Second,
    he submits that the motion judge erred in refusing to validate service and
    extend the time for service.

Analysis

(i)

Fresh Evidence

[8]

Although the appellant brings a motion for leave
    to file fresh evidence, it is a misnomer to label the proposed evidence as
    fresh because it was filed on the motion. It consists of two affidavits. The
    first was sworn by the appellants former counsel and includes court filings in
    a related action arising from the same motor vehicle accident, along with correspondence
    between the appellants former counsel and the insurer for the Toor Respondents.
    The motion judge rejected this affidavit. The second affidavit is sworn by a
    clerk in the Toor Respondents counsels office. It attaches correspondence
    memorializing the agreement between counsel that no further material would be
    filed following the adjournment.

[9]

The jurisprudence regarding the filing of fresh
    evidence is of no assistance, given that the evidence was clearly available on
    the return of the motion. The operative question is whether the motion judge
    erred in rejecting this evidence.  In our view, she did not. On the record
    before her, it was clear that the parties had reached an agreement that no
    further material would be filed. The motion judge was correct in holding the
    parties to that agreement.

(ii)

Extension of Time for Service

[10]

In considering this ground of appeal, we accept
    the submission of counsel for the appellant that we may have regard to the
    pleadings filed in the companion action.  These pleadings establish that the
    insurer for the Toor Respondents was made aware of the accident and was in a
    position to investigate issues of liability and damages regarding the plaintiff
    in that action.  The insurers knowledge of the accident is further confirmed
    by its receipt of the Motor Vehicle Accident Report, which was filed in the
    material before the motion judge. Further, that report also gave the insurer
    constructive notice of the appellants claim because he was listed as an involved
    person.

[11]

In our view, the motion judge erred in her
    analysis of whether to validate service and extend the time for service in two
    respects.

[12]

First, the motion judge made a palpable and
    overriding error of fact in finding that there
was not a sufficient
    explanation
for the delay in service. The unchallenged evidence filed on
    the motion made clear that the delay was attributable to the former counsels
    inadvertence.

[13]

Second, in her prejudice analysis, the motion
    judge failed to consider that the insurer for the Toor Respondents had notice
    of the accident and the fact that the appellant was an involved person. This
    evidence was sufficient to meet the appellants onus of establishing that the
    Toor Respondents would suffer no prejudice if the order sought were granted. In
    those circumstances, the onus shifted to the Toor Respondents to demonstrate
    why they would suffer prejudice despite their knowledge of the accident and the
    appellants involvement.

[14]

On the evidence before us, there is nothing to
    suggest that the Toor Respondents have been hindered in any way in
    investigating the nature and extent of the appellants injuries. Plainly, they
    have had an opportunity to consider liability issues in the related action.

[15]

When these errors are corrected, it is evident that
    the appellant has met the test to validate service and extend the time for
    service of the statement of claim.

Disposition

[16]

For the foregoing reasons, the motion to admit
    fresh evidence is dismissed, and the appeal is allowed.  The order of the
    motion judge is set aside. In its place, an order shall issue validating the
    late service of the statement of claim. The deadline for serving the statement
    of claim on any defendants who have not been served is extended to thirty days
    from the date of this endorsement. As a term of this order pre-judgment
    interest shall not begin to run until February 7, 2020.  Regarding costs, in accordance
    with the agreement of counsel, we award the appellant $5,500 for the costs of
    the motion below and $7,500 for the costs of the appeal. Both amounts are all-inclusive.

C.W. Hourigan J.A.

Grant Huscroft J.A.

S. Coroza J.A.


WARNING

The court
    directs that the following should be attached to the file:

NOTICE OF
    PUBLICATION BAN

An order
    restricting publication in this proceeding imposed under ss. 45(3) and 47 of
    the
Health Professions Procedural Code
(the
Code
), Schedule 2
    to the
Regulated Health Professions Act, 1991
, S.O. 1991, c. 18 shall
    continue.

In the College
    of Massage Therapists of Ontario and Jose Alberto Tena Schoelly, the Discipline
    Committee ordered under ss. 45(3) and 47 of the
Code
that no person
    shall publish, broadcast or otherwise disclose any information that would
    identify the complainant.

Subsection
    93(1) of the
Code
addresses a failure to comply with these orders:

Every person
    who contravenes an order made under  section 45 or 47 is guilty of an offence
    and on conviction is liable,

(a) in the
    case of an individual to a fine of not more than $25,000 for a first offence
    and not more than $50,000 for a second or subsequent offence; or

(b) in the
    case of a corporation to a fine of not more than $50,000 for a first offence
    and not more than $200,000 for a second or subsequent offence.

COURT OF APPEAL FOR ONTARIO

CITATION: College of Massage Therapists of
    Ontario v. Schoelly, 2021 ONCA 655

DATE: 20210922

DOCKET: C68756

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

College
    of Massage Therapists of Ontario

Appellant

and

Jose
    Alberto Tena Schoelly

Respondent

Erica Richler and Anastasia-Maria
    Hountalas, for the appellant

No one appearing for the respondent

Heard and released orally: September 17, 2021
    by video conference

On appeal from the order of the Divisional
    Court (Justices Nancy L. Backhouse, Richard A. Lococo and Michael A. Penny),
    dated March 2, 2020, with reasons reported at 2020 ONSC 1348, allowing in part an
    appeal from a decision of a panel of the Discipline Committee of the College of
    Massage Therapists of Ontario, dated March 26, 2019.

REASONS FOR DECISION

[1]

Counsel have advised that the appeal has been
    resolved on the basis that the respondent does not oppose the appeal and will
    accept the licence revocation ordered by the Discipline Committee. The appeal
    is therefore moot.

[2]

The appellant nevertheless asks that this Court
    hear its submissions and that we make a decision on the merits. While the
    appellant seeks a judicial precedent to serve as a guide in other cases, we
    decline to hear the appeal in the absence of an adversarial context. Nor is it
    an appropriate use of judicial resources to decide an issue that does not have
    any practical consequences for both parties.

[3]

On consent of the parties, an order will issue
    reinstating the order of the Discipline Committee of the College of Massage
    Therapists of Ontario dated March 26, 2019. In so ordering, we express no
    opinion on the conclusions or analysis of the Divisional Court.

G.R.
    Strathy C.J.O.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: 2619506 Ontario Inc., v. 2082100 Ontario Inc., 2021
    ONCA 702

DATE: 20211012

DOCKET: C68814

Lauwers, Harvison
    Young and Sossin JJ.A.

BETWEEN

2619506
    Ontario Inc.
,

Respondent (Plaintiff)

and

2082100 Ontario Inc.
, Samuel Davis and Farhan
    Absar

Appellants (Defendants)

and

2619506 Ontario Inc.
, Vaishali Paralekar and
    Jayesh Paralekar

Defendants to the Countercl
aim

Martin Diegel, for the
    appellants

Alexander Hora, for the
    respondent

Heard: October 1, 2021 by video
    conference

On appeal from the
    judgment of Justice Shaun OBrien of the Superior Court of Justice, dated November
    13, 2020, with reasons reported at 2020 ONSC 6817.

REASONS FOR DECISION

[1]

This appeal arises from an order dated November 13, 2020, granting
    summary judgment to the respondent, finding that its notice of rescission was
    effective to rescind its franchise agreement with the appellants. The motion
    judge held that the financial disclosure document (FDD) the appellants provided
    was so deficient as to amount to no disclosure at all pursuant to s. 6(2) of
    the
Arthur Wishart Act (Franchise Disclosure), 2000
, S.O. 2000, c. 3
    [the Act]. The motion judge also found that both Mr. Davis and Mr. Absar met
    the definition of franchisors associates under s.1(1) the Act and that they
    were jointly and severally liable for damages pursuant to s. 6(6).

[2]

Briefly, the appellants and the respondent executed a franchise
    agreement in May 2018 pursuant to which the respondent 2619506 Ontario Inc,
    through its president, Vaishali Paralekar, became a franchisee of the
    franchisors Fit for Life chain of quick service restaurants. After Ms.
    Paralekar began operating, she found that the sales were much lower than expected.
    After trying to sell the franchise, she ultimately served a notice of
    rescission through her counsel in May 2019.

[3]

The appellants raise two main grounds of appeal. First, they argue that
    the motion judge misapplied the informed investment decision test in finding
    that the deficiencies in the disclosure document amounted to absence of
    disclosure, thus allowing rescission pursuant to s. 6(2) of the Act within two
    years. In particular, they argue that
Raibex Canada Ltd. v. ASWR
    Franchising Corp
., 2018 ONCA 62, 419 D.L.R. (4th) 53 obliged her to
    conduct a more detailed analysis of whether a potential franchisee is able to
    make a properly informed investment decision. The motion judges failure to do
    so constituted a reversible error of law.

[4]

Second, they submit that the motion judge erred in finding that the
    appellants were franchisors associates pursuant to ss.1(1) and 6(6) of the
    Act. Third, and relatedly, they argue that the motion judge erred in imposing
    joint and several liability upon both Mr. Davis and Mr. Absar.

[5]

For the following reasons, we conclude that that the appeal must be
    dismissed.

[6]

We do not agree that the motion judge erred in her articulation or
    application of the test under s. 6(2). We do not agree that this is an
    extricable question of law attracting a correctness standard of review. Rather,
    it raises a question of mixed law and fact, thus attracting the standard of palpable
    and overriding error:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235, at paras. 36-37.

[7]

In applying the informed investor test, the motion judge considered both
    the purpose of the Act and the evolution of the test. She began by observing
    that this court has repeatedly emphasized that the Act is intended to redress
    the imbalance of power between franchisors and franchisees and that it does so
    by imposing rigorous disclosure obligations on franchisors, with strict
    penalties for non-compliance:
Salah v. Timothys Coffees of the World Inc.
,
    2010 ONCA 673, 268 O.A.C. 279, at para. 26;
Mendoza v. Active Tire &
    Auto Inc.
, 2017 ONCA 471, 139 O.R. (3d) 230, at paras. 13, 26;
6792341
    Canada Inc. v. Dollar It Limited
, 2009 ONCA 385, 95 O.R. (3d) 291, at
    para. 13. She continued with the following statement:

Two guiding principles have
    emerged from the Court of Appeal with respect to the interpretation of s. 6(2)
    in particular. The first is that non-compliance with s. 5 of the Act does not
    always provide sufficient grounds for rescission under s. 6(2). As set out in
Raibex
    Canada Ltd. v. ASWR Franchising Corp.
, 2018 ONCA 62, at para. 46: [a]
    franchisee that receives imperfect disclosure does not necessarily stand in the
    same position as a franchisee that was never provided with a disclosure
    document. In
Imvescor
, at para. 73, this court warned that conflating
    those two scenarios would frustrate clear legislative intent.

[8]

The motion judge also correctly observed at para. 18 that a purported
    disclosure document may be so deficient as to effectively amount to no
    disclosure, thereby permitting rescission under s. 6(2):
Raibex,
at
    para. 47. There is no doubt that financial disclosure is of the utmost
    importance in enabling a prospective franchisee to make a properly informed
    investment decision:
Dollar It
, at para. 35. In short, she was alive
    to and set out the appropriate test to be applied.

[9]

On the facts of this case, the only financial information provided to
    the respondents was unaudited 2016 financial statements, despite the clear
    requirement in the applicable regulation for the franchisor to include the 2017
    financial statement, which it failed to do. Nor was there any evidence as to
    whether 2018 financial statements were available when the franchise agreement
    was executed. In any event, neither 2017 nor 2018 financial statements were
    ever provided. Nor was there any recent financial information at all, such as
    sales information for that location. The motion judge concluded that

in the circumstances of this
    case, the absence of any recent financial information rendered the FDD so
    deficient as to amount to no disclosure at all. As a result, the Plaintiff was
    entitled to rescind under s. 6(2) of the Act.

[10]

In our view, the motion judge concisely and accurately set out the
    considerations to be taken into account and applied those to the facts before
    her in reaching her conclusion that the FDD was so deficient as to amount to no
    disclosure at all.

[11]

We also do not agree that the motion judge erred in finding that both Mr.
    Davis and Mr. Absar were franchisors associates as defined in the Act.

[12]

As was the case below, the counsel for Mr. Davis did not seriously
    pursue the argument that he was not an associate under the Act. As the sole
    director and shareholder, as well as the president and CEO of the franchisor,
    he directly controlled the franchisor and clearly falls within clause (a)(i) of
    subsection 6(6) of the Act as a person who controls the franchisor. As the
    person who signed the FDD disclosure certificate, he was directly involved in
    the grant of the franchise, falling within the conjunctive provision of clause
    (b)(i)(A).

[13]

The appellants argue that Mr. Absar, however, was merely an employee of
    the franchisor. Finding that Mr. Absar was a franchisors associate and
    imposing joint and several liability, would, they argue, open the door to finding
    that any employee, such as a receptionist answering telephone calls from
    potential franchisees could be found to be franchisors associates subject to
    joint and several liability.

[14]

As the motion judge concluded, Mr. Absar was not a mere employee. First,
    she found that he was controlled by another person who also controls directly
    or indirectly the franchisor, that is Mr. Davis. She reached this conclusion
    on the basis of the appellants own documents. The franchisors own
    organizational chart, and Mr. Absars e-mail signature, identified him as the
    Director of Franchising and Development for the Davis Group of companies, which
    included Fit for Life. Although the Davis Group was not itself a corporation,
    Mr. Davis was the head of the Davis Group and owned all of the Davis Group of
    companies. We see no error in her finding that Mr. Absar fell within the first
    part of the definition as he was controlled by a person, Mr. Davis, who
    controlled the franchisor.

[15]

In addition, we see no error with her finding that Mr. Absar met the
    second part of the definition in clause (b)(i)(B) because he made representations
    to the prospective franchisee on behalf of the franchisor for the purpose of
    granting the franchise, marketing the franchise or otherwise offering to grant
    the franchise. This finding was well grounded in the record. Mr. Absar
    advertised Fit for Life franchises to generate leads and met with potential
    franchisees to discuss their application. He acknowledged that he had been
    involved in the marketing of the specific franchise location in issue and that
    he had personal communications with Ms. Paralekar about the franchise. Her
    undisputed evidence was that she met with him to discuss her application and
    that he provided her with the FDD.

[16]

Finally, we see no error in the motion judges imposition of joint and
    several liability on both appellants. The appellants contend that the liability
    can be imposed on the franchisor or franchisors associate pursuant to s.
    6(6). However, there was no suggestion before the motion judge that liability
    for damages should be imposed on any basis other than joint and several
    liability. Although the appellants cite
2122994 Ontario Inc. v. Lettieri
,
    2016 ONSC 6209, affd 2017 ONCA 830, in support of its position, we do not find
    this case to be of any assistance them.

[17]

Finally, the appellants submit that this matter should not have been
    determined on a motion for summary judgment because the affidavit evidence
    contained numerous inconsistencies. While it is true, as the motion judge
    recognized, that the parties did not agree on all factual matters, she found
    that there was no dispute about the primary facts upon which she decided the
    issues before her. Her reasons make it clear that she was careful to determine
    the issues before her on the basis of undisputed facts and we see no error in
    her determination that there were no genuine issues that required a trial:
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.

[18]

The appeal is dismissed. Costs are payable by the appellants to the
    respondent in the amount of $8,600, inclusive of disbursements and HST.

P. Lauwers J.A.

A. Harvison Young
    J.A.

L. Sossin J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Burke v. Poitras, 2021 ONCA 703

DATE: 20211012

DOCKET: C68442

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Natalie Burke

Applicant (Respondent)

and

Shawn Poitras

Respondent (Appellant)

Gordon S. Campbell, for the appellant

Judith Wilcox, for the respondent

Heard: September 23, 2021 by video conference

On
    appeal from the order of Justice Laurie Lacelle of the Superior Court of
    Justice, dated May 21, 2020, with reasons reported at 2020 ONSC 3162, and from
    the costs order, dated July 17, 2020, with reasons reported at 2020 ONSC 4389.

REASONS FOR
    DECISION

[1]

The parties were married for 13 years and separated in 2014 after the
    respondent left the matrimonial home due to the appellants abusive conduct.
    The parties have three children. The oldest child lives primarily with the
    appellant and the parties share parenting time for the two younger children.

[2]

After the appellant repeatedly failed to respect his disclosure
    obligations and failed to comply with court orders requiring financial disclosure
    to the respondent, the appellants answer was struck. Except in relation to the
    issues of decision-making responsibility and parenting time, the decision to
    strike the appellants answer was confirmed by this court in
Burke v.
    Poitras
, 2018 ONCA 1025, 22 R.F.L. (8th) 266. As a result, the matter proceeded
    as an uncontested trial.

[3]

In lengthy reasons, the trial judge awarded the respondent child and
    spousal support including substantial arrears, an equalization payment and
    exclusive possession of the matrimonial home, among other relief. The trial
    judge also ordered that the appellant not be permitted to proceed with any
    future motions pertaining to the issues in the present litigation without leave
    of the court.

[4]

In our court, the appellant raises four grounds of appeal and seeks to
    file fresh evidence. He argues that the trial judge erred in:

1.

failing to conduct an independent inquiry into the appellants trial
    participation rights;

2.

failing to scrutinize the respondents evidence on a standard of balance
    of probabilities;

3.

ordering spousal support to the respondent for an indefinite period of
    time and not providing for a review; and

4.

awarding costs
    against the appellant.

The fresh evidence application

[5]

The appellant seeks to introduce the affidavit of Alain Gravelle, a
    chartered accountant whose firm has provided accounting services to the
    appellant and his businesses for over a decade. The affidavit and attachments attempt
    to rebut the accounting evidence led by the respondents accounting expert at
    trial and accepted in the trial judges reasons and award.

[6]

We deny leave to file the fresh evidence. In our view, it does not meet
    the test from
Palmer v. The Queen
,
[1980] 1 SCR 759.

[7]

The information contained in the proposed fresh evidence could, with due
    diligence, have been adduced at trial. In large measure, it consists of financial
    information about the appellant and his businesses that was not produced prior
    to trial in violation of the outstanding court orders. The appellants
    continued refusal to disclose this information led to the striking of his answer.
    Now, he seeks to circumvent that sanction by introducing evidence in the form
    of fresh evidence to critique the respondents accounting expert and the trial
    judges decision.

[8]

Not only did the appellant refuse to disclose the financial information
    required to properly determine his income and his business revenues, he also refused
    to instruct his accountants to cooperate with the respondents expert. Had the
    appellant allowed this cooperation, the information he now seeks to file would
    have been considered by the respondents expert and, to the extent it was
    relevant, included and commented on in his report.

[9]

The appellant cannot argue that we should now accept this evidence and
    rely on it and his accountants interpretation of that evidence to challenge
    the respondents accounting expert and the findings of the trial judge. The
    respondents accountant clearly explained the need to make assumptions given
    the absence of disclosure. It is not open to the appellant to now seek to
    introduce the very evidence he refused to disclose prior to trial to overturn
    the decision on appeal.

The appellants participation rights

[10]

The appellant argues that the trial was unfair as he was provided with
    no opportunity to participate. In his submission, even a limited right of
    participation would have attenuated the alleged unfairness and led to a more
    balanced result. The appellant emphasizes his Grade 9 education and his lack of
    sophistication. He submits that he was unable to assert his participation
    rights because he was told he would need a lawyer and could not afford one. In
    his view, the trial judge ought to have allowed him to question the witnesses
    and test the evidence.

[11]

We disagree. By order dated May 17, 2018, the appellants answer was
    struck due to his failure to comply with the courts disclosure order. The order
    did not provide him with a right to participate in the ongoing proceeding. Pursuant
    to the
Family Law Rules
, the appellant was not entitled to participate
    in the case in any way: O. Reg. 114/99. As noted above, the appellants appeal
    of the order striking his answer was dismissed.

[12]

Nonetheless, the Superior Court, on its own motion, set a date for a hearing
    prior to trial to determine whether the appellant ought to be provided with
    some degree of participation in the coming trial. The appellant was aware of
    the date of the hearing but chose not to appear. He claims he could not
    complete the paperwork but, as noted by the respondent, the appellant has no
    difficulty communicating with her by text message and operates a very
    successful business. As a result, the court ordered that no participation
    rights were to be afforded to the appellant. No appeal was taken from that
    order.

[13]

Although he was not allowed to participate, the appellant was present
    throughout the trial. The trial judge had, in our view, the discretion to vary
    the non-participation order and allow some degree of participation. However, the
    appellant did not move to vary the order and, given his disruptive conduct over
    the course of the trial and his continued refusal to comply with the disclosure
    orders, there was no basis to do so. As a result, we see no unfairness.

Failing to scrutinize the respondents evidence

[14]

The appellant argues that the trial judge simply accepted the evidence
    tendered by the respondent at trial without analysis or scrutiny. In
    particular, the appellant argues that the evidence of the respondents
    accounting expert ought to have been rejected as it was largely based on
    speculation.

[15]

We do not agree. The trial judge carefully evaluated the evidence. The
    respondents accountant expert was quite clear as to when and on what basis he
    made assumptions as to the appellants income and expenses. For example, he
    concluded that the appellant used corporate income for personal expenses based,
    in part, on several expensive personal purchases on the appellants corporate
    credit card and bank account. Further, he noted that the appellants company did
    not distribute its income, nor did it require significant capital investments.
    In the absence of evidence to the contrary, the trial judge accepted the
    experts reasoning. She noted that retained earnings are not necessarily
    income, but that the appellant failed to provide evidence to rebut these
    assumptions.

[16]

Therefore, trial judge explained why she accepted the experts evidence
    and the basis for her findings. Based on the record, the trial judges
    conclusions are reasonable and we see no basis to interfere.

Was the amount and duration of spousal support reasonable?

[17]

The appellant argues that it was not appropriate for the trial judge to
    simply adopt the calculations using the
Spousal Support Advisory Guidelines:
    The Revised Users Guide
(April 2016)
(
SSAG
s) and to not provide for the termination of spousal support
    within a reasonable time. He reiterates that he has a Grade 9 education,
    whereas the respondent is a nurse in a supervisory position at the local
    hospital. In the circumstances, a lower amount of support ought to have been
    ordered for a definite duration.

[18]

We disagree. The trial judge considered the principles in
Moge v.
    Moge
, [1992] 3 S.C.R. 813, and determined that support on a compensatory
    basis was appropriate in the circumstances. She saw no reason to depart from
    the number generated from the
SSAG
s and noted that the marriage
    resulted in significant economic advantages to the appellant. We note that
    indefinite support simply means that the duration is not specified. The
SSAG
s
    stress that indefinite does not necessarily mean permanent. It only means
    that no time limit can be set at the time of the order or agreement: p. 28.

[19]

The trial judges reasons are fulsome in explaining how she reached
    these conclusions and are owed deference on appeal. We see no basis to
    interfere.

Costs

[20]

The appellant argues that the award of costs in the amount of $217,229.25
    after a three-day uncontested trial was excessive.

[21]

We would not interfere with the trial judges costs award. She provided
    detailed reasons for the award, accounting for the appellants conduct, including
    the breach of the disclosure orders, and found the amount of costs sought by
    the respondent to be just and proportionate. The appellant has not demonstrated
    any error in the trial judges exercise of discretion in that regard.

Conclusion

[22]

For these reasons, the appeal is dismissed. Costs to the respondent
    fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.

J.A. Thorburn J.A.


WARNING

The judge hearing this motion
    directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1)
    or (2) of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

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

(a)     any of the following
    offences;

(i)      an offence under
    section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172,
    172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

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

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

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

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

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

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

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

(b) on application of the victim
    or the prosecutor, make the order.

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

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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

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

WARNING

An order restricting publication in this proceeding
    was made under s. 517 of the
Criminal Code
and continues to be in
    effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or the accused
    intends to show cause under section 515, he or she shall so state to the
    justice and the justice may, and shall on application by the accused, before or
    at any time during the course of the proceedings under that section, make an
    order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry is held, the
    accused in respect of whom the proceedings are held is discharged; or

(b)     if the accused in respect
    of whom the proceedings are held is tried or ordered to stand trial, the trial
    is ended.

Failure to comply

(2)     Everyone who fails without lawful excuse, the
    proof of which lies on him, to comply with an order made under subsection (1)
    is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
    Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    N.S., 2021 ONCA 694

DATE: 20211012

DOCKET: M52570

(C69437)

MacPherson, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Applicant

(Appellant)

and

N.S.

Responding Party

(Respondent)

Deborah Krick, Michael Dunn and Jeremy Tatum, for the
    applicant

Carlos Rippell and Marianne Salih, for the responding
    party

Gerald Chan and Dragana Rakic, for the intervener,
    Criminal Lawyers Association (Ontario)

Heard: October 1, 2021 by video conference

REASONS FOR DECISION

[1]

Following the decision of the Supreme Court of Canada in
Canada
    (Attorney General) v. Bedford
, 2013 SCC 72, [2013] S.C.R. 1101 (
Bedford
SCC), Parliament enacted new legislation to address the sale of sexual
    services in Canada. In this new legislation, Parliament criminalized certain
    aspects of commercial sex work.

[2]

The respondent N.S. was charged with several offences under the
Criminal
    Code
, R.S.C. 1985, c. C-46, including s. 286.2 (receiving material benefit
    from sexual services), s. 286.3(1) (procuring sexual services), and s. 286.4
    (advertising sexual services). At trial, the respondent asserted that these
    provisions infringed ss. 2(b), 2(d), and 7 of the
Canadian Charter of
    Rights and Freedoms
and were not justifiable limits under s. 1 of the
Charter
.

[3]

The trial judge held that these provisions infringed s. 7 of the
Charter
,
    declared them of no force and effect, and declined to suspend the declaration
    of invalidity:
R. v. N.S.
, 2021 ONSC 1628;
R. v. N.S.
, 2021
    ONSC 2920.

[4]

The applicant has appealed these decisions and seeks to stay them
    pending the appeal.

[5]

The test for granting a stay is the longstanding and well-known
    tripartite one set out by the Supreme Court of Canada in
RJR-MacDonald Inc.
    v. Canada (Attorney General)
, [1994] S.C.R. 311, at para. 48:

First, a preliminary assessment must be made of the merits of
    the case to ensure that there is a serious question to be tried. Secondly, it
    must be determined whether the applicant would suffer irreparable harm if the
    application were refused. Finally, an assessment must be made as to which of
    the parties would suffer greater harm from the granting or refusal of the
    remedy pending a decision on the merits.

[6]

The applicant easily meets the first part of the test. It is obvious
    that the respondents challenge to the validity of several provisions in s. 286
    of the
Criminal Code
poses a serious question to be tried: see
Bedford
    v. Canada Attorney General)
, 2010 ONCA 814, 330 D.L.R. (4th) 162, at para.
    10 (
Bedford
ONCA). In recent months three other judges of the
    Superior Court have declined to follow the decision in
N.S.
: see
R.
    v. MacDonald
, 2021 ONSC 4423, 72 C.R. (7th) 413;
R. v. Williams
(24
    June 2021), Brampton, 18-00000980 (Ont. S.C.); and
R. v. Maldonado Vallejos
,
    2021 ONSC 5809.

[7]

On the second branch of the test  irreparable harm to the applicant
    we begin with the analysis by Rosenberg J.A. in the stay application relating
    to the former
Criminal Code
prostitution provisions. In
Bedford
ONCA
, Rosenberg J.A. analyzed the second
    branch of the
RJR-MacDonald
test at para. 15:

There are obvious advantages to maintaining the
status
    quo
by staying the judgment. A stay will minimize public
    confusion about the state of the law in Ontario; for the time being the law in
    Ontario will be the same as in the rest of Canada. The police will be able
    to continue to use the tools associated with enforcement of the law that they
    say provides some safety to prostitutes, especially those working on the
    streets. The various levels of government will have the opportunity,
    should they choose to do so, to consider a legislative response to the
    judgment, which might be better informed following a full review by this court
    of the application judges decision.

[8]

In our view, the extensive evidentiary record put forward by the
    applicant on this motion strongly supports a similar analysis and conclusion.

[9]

The third branch of the
RJR-MacDonald
test  the balance of
    convenience branch  also favours the granting of a stay. Again, the analysis
    in the decision on the stay application in
Bedford
ONCA is
    instructive. In that case, Rosenberg J.A. said, at para. 24:

In cases involving the constitutionality of legislation,
    irreparable harm and balance of convenience tend to blend together and they are
    often considered together.   This blending of the two stages in cases
    involving the constitutionality of legislation is understandable because, where
    the government is the applicant, the public interest is engaged at
    both stages  As well, the irreparable harm is not easily quantified in a case
    such as this in which monetary issues are not engaged and any harm to one side
    or the other cannot be cured by an award of damages at the end of the
    litigation  In the result, the same considerations that concern a court at the
    irreparable harm stage resurface in the balance of convenience stage.

[10]

In
Bedford
ONCA
,
    Rosenberg J.A. went on to conclude that the balance of convenience favoured the
    applicant. We would make a similar conclusion with respect to the new
Criminal
    Code
provisions relating to prostitution. Their content, and the ongoing
    investigative and enforcement steps taken by law enforcement personnel, support
    the granting of a stay. This is especially so given that, with the agreement of
    counsel, the stay will be a very brief one.

[11]

We
    grant the stay and maintain it in place until November 19, 2021, the date on
    which the appeal will be heard in this court.

J.C. MacPherson J.A.

L.B. Roberts J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ossetchkine, 2021 ONCA 698

DATE: 20211012

DOCKET: C67718

Rouleau, Benotto and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Victor Ossetchkine

Appellant

Victor Ossetchkine, acting in person

Jeffrey Wyngaarden,
for the
    respondent

Heard: October 4, 2021 by video conference

On appeal from the conviction entered on September 13,
    2019 and the sentence imposed on October 18, 2019 by Justice J. Speyer of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted by a jury of four
    counts of assault and two counts of assault with a weapon. The victims were his
    three children and his wife. He was sentenced to 12 months imprisonment less
    credit for pre-sentence custody, 3 years probation, a 10-year firearms
    prohibition, and a DNA order.

[2]

He appeals the conviction and sentence.

[3]

The Crown alleged that, over a period of several
    years, the appellant assaulted each of his children and his wife. He repeatedly
    assaulted his son and oldest daughter with a bamboo stick and a leather belt
    when he was training them for karate. He used these devices to correct them if
    they failed to meet his expectations. They were also made to lie down on their
    stomachs with their hands at their sides while he struck them on the buttocks,
    thighs, and lower back. He made them fight each other and the loser would get
    hit. If there was a tie, they both got hit. The beatings continued until the
    son was 17 years old and the daughter was in university. The youngest daughter
    was physically disciplined from the age of four for innocuous behaviour such as
    not finishing her soup. He would twist her ears until she cried and lifted her
    off the ground by her ears. He assaulted his wife by choking her with both
    hands and shaking her.

[4]

The appellants defence was that it did not
    happen. He testified at trial.

[5]

The appellant submits that the jury verdict is
    wrong and repeats much of the evidence he submitted at trial. We do not give
    effect to these submissions.

[6]

He also asserts ineffective assistance of trial
    counsel. Although the protocol was not followed and we have no evidence from
    trial counsel, we do not need to assess the performance aspect of this claim.
    The appellant has not met the threshold requirement of showing prejudice. That
    is because, even if his assertions are correct, the result of the trial would
    not change. There is no miscarriage of justice here.

[7]

By way of example, the appellant submits that his
    trial counsel did not tell the jury that his wife lied about when her affidavit
    for family law proceedings was prepared in relation to when it  was sworn or
    that it was prepared and sworn in secret; that he could not have exercised
    control over his wife because she was free to go to the grocery store two to
    three times a month; and that his wife lied about not having a cell phone. He
    also says that counsel agreed that the police witnesses would not be called, so
    the jury did not see the video statements showing the wife was not afraid as
    they were not produced.

[8]

These matters would not have affected the jury verdict.
    The issue at trial was credibility. The complainants were extensively
    cross-examined, and the appellant testified at trial. The issues raised by the
    appellant had, at best, marginal relevance.  In fact, most would not have
    assisted him, were irrelevant, or would have worked to his disadvantage. The
    jury was convinced beyond a reasonable doubt that the Crown had proven its case
    with respect to the convictions. In fact, the appellant was acquitted of some
    of the charges against him.

[9]

The sentencing reasons disclose no error in principle, and we do not
    interfere.

[10]

The conviction appeal is dismissed. Leave to appeal the sentence is
    allowed, but the sentence appeal is dismissed.

Paul Rouleau J.A.

M.L. Benotto J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Xavier, 2021 ONCA 713

DATE: 20211012

DOCKET: C69531

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tiago Gomes Xavier

Appellant

Nate Jackson, for the appellant

Mark Luimes, for the respondent

Heard: in writing

On appeal from the sentence imposed by Justice Edward Prutschi
    of the Ontario Court of Justice on April 9, 2021.

REASONS FOR DECISION

[1]

The
    appellant received a sentence of ten months imprisonment for one count of
    robbery. Counsel informed the sentencing judge that the appellant had served
    three days in presentence custody, meaning he should be credited 5 days in
    total. The sentencing judge agreed.

[2]

The
    sentencing judge also gave credit pursuant to
R. v. Downes
(2006), 79 O.R. (3d) 321
    (
Downes
credit) for what he
    thought was 15 months spent on restrictive bail terms. The
Downes

and presentence custody credit came
    to a combined total of 2 months.

[3]

On
    appeal, the parties agree that the sentencing judge was misinformed about the
    amount of time spent in presentence custody and on restrictive bail conditions.
    The appellant actually spent 30 days (not 3 days) in presentence custody,
    meaning that he only spent 14 months (not 15 months) on restrictive bail
    conditions.

[4]

The
    parties agree that that this sentencing error can be remedied by decreasing the
Downes
credit by 4 days and increasing the
    presentence custody by 41 days. This results in an additional 37 days of
    credit.

[5]

We are prepared to
    accede to this joint position. An additional 37 days credit is granted and
    should be reflected on the warrant of committal. The sentence remains the same
    in all other respects.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
RE/MAX
    Realtron Realty Inc. v. 2458313 Ontario Inc., 2021 ONCA 715

DATE: 20211012

DOCKET: C68157

Hourigan, Huscroft and Coroza JJ.A.

BETWEEN

RE/MAX Realtron Realty Inc.

Plaintiff (Appellant)

and

2458313 Ontario Inc., 2524991 Ontario
    Corporation, Qingxin Shao also known as Newry Shao and Zoubo Gu also known as
    Steven Gu

Defendants (Respondents)

Paul Starkman and Calvin Zhang, for the appellant

Jordan Goldblatt and Victoria Wicks, for the respondents

Heard: October 8, 2021 by video conference

On appeal from the judgment of Justice Edward M. Morgan
    of the Superior Court of Justice, dated January 29, 2020.

REASONS FOR DECISION

[1]

The appellants claim for commission on the sale of a Toronto property
    was dismissed following a mini-trial, which was ordered in the context of the respondents
    motion for summary judgment. The trial judge determined that a numbered
    company, 2458313 Ontario Inc. (245), whose purchase of the property was
    terminated, and the numbered company that subsequently purchased the property,
    2524991 Ontario Corporation (252), were separate corporate entities with
    overlapping but distinct interests and people. The trial judge found, further,
    that
even if the corporate veil were pierced as the appellant
    requested, it would do no good because the people behind the two corporations
    were different. They were therefore not responsible for each others
    contractual obligations and the holdover clause in the purchase and sale
    agreement with
245 did not apply.

[2]

The appellant raises several issues on appeal that, taken as a
    whole,
essentially invite this court to retry the case. That
    is not our role.

[3]

The appellant has not established that the trial judge made
    a palpable and overriding error that would justify this courts intervention.
    The trial judge found that
245 did not include several people involved
    in 252. Those people contributed half of the funds for the acquisition of the
    property by 252, had a majority of the corporate officers, owned 50% of the
    shares, and negotiated the second agreement of purchase and sale on behalf of
    252. These findings were open to the trial judge on the record that was before
    him. The trial judge went on to apply the test set out by this court in
Yaiguaje
    v. Chevron Corp.
, 2018 ONCA 472, leave
    to appeal refused, [2018] S.C.C.A. No. 255,
and found that the
    criteria for piercing the corporate veil were not met. 252 was not a mere
    façade for 245, nor was either company nothing more than the authorized agent
    of its members. These findings reveal no error and are entitled to deference.

[4]

As to the causes of action pleaded by the
    appellant, the trial judge found that 245s intention in terminating its
    agreement of purchase and sale was not to save commission. Instead, several
    individuals who were going to invest in the purchase were concerned by the
    state of the building and were simply not satisfied with the deal, so it did
    not proceed. The appellant clearly knew of this, as its agent had participated
    in group chats about their concerns. A different group made a different offer
    using its own real estate agent. In the absence of evidence of underlying wrongdoing
    or unlawful intent, the various causes of action advanced by the appellant
    necessarily failed. We see no error in the trial judges analysis.

[5]

The motion judge awarded the respondents
    $143,931.31 in costs. He took into account that the respondents had made two
    offers to settle and had been entirely successful. He found that the appellants
    case completely missed the mark and that both the trial and the summary
    judgment motion could have been avoided had the offers to settle been accepted.
    Thus, the motion judge awarded partial indemnity costs up to the date of the
    second offer and substantial indemnity costs thereafter.

[6]

The costs award is indeed large, but the appellant has
    not established that the motion judge made an error in principle or that the
    quantum of costs is unreasonable in the circumstances,
which include the
    appellants rejection of two offers to settle. As the trial judge noted, given
    the appellants knowledge of what had occurred, it is not clear why it was
    necessary for this case to be tried.

[7]

Accordingly, the appeal is dismissed. Leave to appeal costs is denied.

[8]

The respondent is entitled to costs in the agreed amount of $20,000, all
    inclusive.

C.W. Hourigan J.A.

Grant Huscroft J.A.

S. Coroza J.A.