CITATION:
Macksoud
v. Carroll, 2011 ONCA 108

DATE:  20110209

DOCKET: C52517

COURT OF APPEAL FOR ONTARIO

Goudge, Feldman and Watt JJ.A.

BETWEEN

Kaden

Macksoud
, by his Litigation Guardian Alice
Macksoud
, Alice
Macksoud
and Christopher
Macksoud

Plaintiffs (Appellants)

and

Dr. Bryan
          William Carroll, Dr. Bruce
Devall
, Dr. Osborne, Leamington
          District Memorial Hospital, Jill
Kalapos
and Cecile
Foulon

Defendants (Respondents)

Lucy Lee and Kim Newman, for the appellants

Carolyn
Brandow
and Fred
Tranquilli
, for Dr.
Bacheyie

Emily R.
McKernan
and Deborah
Berlach
, for K. Jones and Ian Foote

Heard: January 20, 2011

On appeal from the order of Justice Peter B.
Hockin
of the Superior Court of Justice, dated July 7,
          2010.

Feldman J.A.:

[1]

The appellant, Alice
Macksoud
,
    is the mother and the litigation guardian of the infant plaintiff
Kaden

Macksoud
, who suffered
    severe brain injury at birth. As a result, the appellants brought a timely
    action for damages against a number of health practitioners.

[2]

Shortly before the action was to go to trial, the
    appellants were granted an adjournment in order to move to add claims against a
    number of additional defendants who were involved in the infants postnatal
    care, and whose potential liability had just been made known to the appellants.
    The motion to add the new defendants was, however, dismissed on the basis that
    the claims against them were statute barred.

[3]

For the reasons set out below, I would allow the appeal
    from that order in respect of the claims of the infant plaintiff and the
    derivative claims of the adult plaintiffs
[1]
.

Facts

[4]

The infant was born on May 15, 2001 at the

Leamington
District
Memorial
Hospital. As a result of
    the problems that occurred at birth and observations of the infant following
    his birth, on May 17, 2001 he was transferred by ambulance to the neonatal
    intensive care unit at Hotel-
Dieu
Grace Hospital in
    Windsor where he spent until May 30, 2001 in post-natal care.

[5]

Shortly after being retained by the appellants in
    February, 2002, counsel requested the full records from the London Health
    Sciences Centre, the Leamington District Memorial Hospital and the Hotel-
Dieu
Grace Hospital, and received all of the records
    between March and June of 2002. Counsel issued the claim against the original
    defendants in May 2002.

[6]

Counsel consulted with a specialist in neonatology, Dr.
Marrin
, in March, 2003. However, counsel deposed that
    nothing discussed with Dr.
Marrin
alerted him or the
    litigation guardian to any claims against the proposed new defendants.

[7]

Counsel retained another specialist in neonatal care,
    Dr. Reid, described as the plaintiffs primary expert, in March 2007. In a
    conversation in October, 2009, Dr. Reid advised counsel for the first time that
    he had concerns with the care the infant received while being transferred to
    Hotel-
Dieu
Grace Hospital and while in that hospital.
    Dr. Reid provided a report detailing his concerns in December, 2009, and based
    on that report, the motion to adjourn the trial, which was granted, and the
    motion to add the proposed additional defendants were brought.

[8]

In his affidavits filed on the motion, counsel took the
    position that he could not have known about the claims against the proposed new
    defendants until his conversation with Dr. Reid in October, 2009 and that he
    was not in a position to appropriately amend the statement of claim until he
    had received Dr. Reids report of December 7, 2009.

The reasons of the motion judge

[9]

The motion judge described the positions that the
    parties took before him. The plaintiffs position was that the claims were
    discovered or discoverable before January 1, 2004; therefore, under the transition
    provisions of the new
Limitations Act,
    2002
, S.O. 2002, c. 24, Sch. B, the former limitation period applied, and
    for an infant plaintiff, that period was suspended for the period of disability
    of the infant, and had not yet passed.
[2]
Therefore, the new proposed claims were not
    statute barred. The plaintiffs argued that this courts decision in
St. Jean (Litigation Guardian of) v. Cheung
(2008), 94 O.R. (3d) 359 (C.A.) was directly applicable. In that case, the
    court held that claims against hospitals and health practitioners were
    discoverable when the hospital records were obtained.

[10]

The defendants submitted that the new
Limitations Act, 2002
applied, that
    based on the evidence of appellants counsel the proposed new claims were not
    discoverable before January 1 , 2004, but that the two year limitation period applicable
    as of that date had passed, since the proposed claims were discovered or
    discoverable more than two years before the plaintiffs motion.

[11]

The motion judge applied s. 24(5) of the
Limitations Act, 2002
, part of the
    transition provisions of the new Act. Section 24(2) provides that the transition
    section applies where the act or omission occurred before January 1, 2004 and
    no proceeding against the defendant was commenced before that date. Subsection
    (5) applies if two further conditions are met: (1) the former limitation period
    did not expire before January 1, 2004, and (2) a limitation period under
    the new Act would apply if the impugned act or omission had occurred on or after
    that date. Once into s. 24(5), if the claim was discovered (or discoverable)
    before January 1, 2004, then the former limitation period applies; if not, then
    the new limitation period applies.

[12]

The disputed issue before the motion judge was whether
    the new claims were discoverable before January 1, 2004. The motion judge found
    that this is a question which is by and large fact based.  He then relied on counsels affidavits to
    conclude that there was nothing in the material that established that the
    claims against the proposed new defendants could have been discovered by the
    plaintiffs using due diligence before January 1, 2004. As a result, under s.
    24(5)1, the new two year limitation period applied and ran from January 1,
    2004.

[13]

The motion judge then turned to the evidence of what
    occurred after that date. He concluded that although counsel was only advised
    of the new claims by Dr. Reid in October, 2009, the motion was not timely.
    First, Dr. Reid should have been consulted before March, 2007. However, even
    taking the plaintiffs case at its highest, having retained Dr. Reid in March,
    2007 to advise regarding the childs care, it was incumbent on counsel (and
    therefore the litigation guardian) to obtain the doctors opinion within six
    months of retaining him. Therefore, the claim was discoverable at the latest,
    six months after March, 2007, and statute barred two years after that.

Issues

1)

Did the motion judge err in concluding that the claims
    were not discoverable before January 1, 2004?

2)

If not, did the motion judge err in concluding that
    after January 1, 2004, the  claims were
    discoverable by the litigation guardian within the two year limitation period?

3)

In the alternative, did the motion judge err in finding
    that the litigation guardian was retained in respect all possible claims and
    not just for the claims that had already been brought in the action?

Analysis

[14]

The relevant provisions of the
Limitations Act, 2002
are ss. 24(2), 24(5), 5(1)(a) and (b), and 8
    which provide:

24(2)
This
section applies
    to claims based on acts or omissions that took place before January 1, 2004 and
    in respect of which no proceeding has been commenced before that date.

...

(5) If the former limitation period did not expire
    before January 1, 2004 and if a limitation period under this Act would apply
    were the claim based on an act or omission that took place on or after that
    date, the following rules apply:

1. If the claim was not discovered before
    January 1, 2004, this Act applies as if the act or omission had taken place on
    that date.

2. If the claim was discovered before January
    1, 2004, the former limitation period applies.

5(1)
A
claim is discovered
    on the earlier of,

(a)
the
day on which the
    person with the claim first knew,

(i)
that
the injury, loss
    or damage had occurred,

(ii)
that
the injury,
    loss or damage was caused by or contributed to by an act or omission,

(iii)
that
the act or
    omission was that of the person against whom the claim is made, and

(iv)
that
, having
    regard to the nature of the injury, loss or damage, a proceeding would be an
    appropriate means to seek to remedy it; and

(b)
the
day on which a
    reasonable person with the abilities and in the circumstances of the person
    with the claim first ought to have known of the matters referred to in clause
    (a).

8.  If
    a person is represented by a litigation guardian in relation to the claim,
    section 5 applies as if the litigation guardian were the person with the claim.

[15]

Also important is s. 47 of the former
Limitations Act
, R.S.O. 1990, c. L. 15, which
    provided:

47. Where
    a person entitled to bring an action mentioned in section 45 or 46 is at the
    time the cause of action accrues a minor, mental defective, mental incompetent
    or of unsound mind, the period within which the action may be brought shall be
    reckoned from the date when such person became of full age or of sound mind.

[16]

The motion judge was correct in focusing on the
    application of the transition provision of the
Limitations Act, 2002
. Section 24(2) provides that the transition
    provision applies when the event that gives rise to the claim occurred before
    January 1, 2004, and no proceeding was commenced before that date. Then s.
    24(5) applies if the court determines that the former limitation period did not
    expire before January 1, 2004 and if there is an applicable limitation period
    under the new Act that would apply if the claim were based on events that
    occurred on or after January 1, 2004.

[17]

The motion judge found that under the former Act (s.
    47), the period of limitation was suspended for infants and those with mental
    defects until they became of age and competent to sue. Therefore, the former
    limitation period had not expired. Also the new period of two years from the
    date of discovery would apply if the events had occurred after January 1, 2004.

[18]

The motion judge correctly concluded that the real
    issue before him, therefore, was to determine whether rule 1 or 2 of s. 24(5)
    applied and that depended on whether the claim was discovered or discoverable
    before January 1, 2004. If it was, then the former limitation period applied,
    which meant that the limitation period for commencing the infants claim
    remained suspended and the new proposed claims remained timely. If it was not
    discoverable before January 1, 2004, then the claim would run from that date
    for two years from when the claims were discoverable.

[19]

Having correctly identified the real issue, with
    respect to the trial judge, he erred in treating the issue as a question of
    fact to be determined based primarily on the evidence of counsel for the
    appellants of what he did and did not do, without considering s. 5(2) of the
Limitations Act, 2002,
which essentially
    codifies the test for determining when a claim was discoverable.

[20]

This very issue was addressed by this court in the
St. Jean
case, where the facts were very
    similar to those in this case. There the court found that the infants claim
    was effectively discovered in February, 2003, when the litigation guardian,
    through counsel, received the relevant hospital records, even though those
    records were apparently not reviewed until new counsel was retained in 2005.

[21]

The motion judge distinguished
St. Jean
on the basis that in that case, it was agreed that had the
    records been reviewed, the existence of the doctors that were sought to be
    added would have been known, whereas in this case, it was contended by the
    plaintiffs that although they had the hospital records in 2002, they could not
    know their significance in terms of potential claims until 2009, when Dr. Reid
    advised counsel of the errors he identified from the hospital records in the
    postnatal care of the infant both in transit from Leamington and at the Hotel-
Dieu
Grace Hospital.

[22]

In my view, the
    motion judge erred in his discoverability analysis by (1) limiting his
    assessment essentially to the evidence of counsel for the plaintiffs, (2)
    discounting the importance of the
St.
    Jean
decision, and (3) failing to consider, based on all the evidence of
    what occurred, on what day the litigation guardian (through counsel) first
    ought to have known
of
the proposed new claims. The
    relevant considerations included:

·

The appellant infant was in the neonatal unit of
    Hotel-
Dieu
hospital from May 17 to May 30, 2001 and
    under the care of the physicians and staff there during that time;

·

Counsel obtained all of the hospital records in
    2002 including the records of the transport of the infant to the Hotel-
Dieu
hospital and the records from that hospital;

·

No expert reviewed the records before the
    statement of claim was issued;

·

Although counsel later consulted with Dr.
Marrin
, there is no evidence that Dr.
Marrin
reviewed all of the records or that Dr.
Marrin
was
    asked to advise whether those records disclosed any claims arising out of the
    care and treatment of the infant plaintiff;

·

Once Dr. Reid had reviewed the records, he
    identified the problems with the care during transport of the infant from
    Leamington to Windsor, and at the Hotel-
Dieu
hospital,
    that give rise to the claims against the proposed new defendants.

[23]

When all of
    these circumstances are considered, it is clear in my view, that had the
    appellants consulted an appropriate medical expert in a timely way to review
    the hospital records when they were received in 2002, that expert would have
    identified the proposed new claims from those records before January 1, 2004.

[24]

In this case, it appears that the claims were not
    necessarily discoverable just from a review of the records by a lay person as
    in
St. Jean
. However, a reasonable
    person acting as litigation guardian, and in this case, acting for herself as
    well, would retain  competent counsel
[3]
who is expected to take whatever are the necessary steps in a potentially
    complex medical malpractice case to identify all the potential defendants
    against whom claims may be made, within the relevant limitation period.

[25]

I have considered that in 2002 the limitation period
    for the infant was much longer than it later became under the new Act, and that
    it was therefore arguably not reasonable to expect counsel to proceed as
    quickly as is now necessary once a litigation guardian is appointed. However, the
Limitations Act, 2002
, although not
    effective until January 1, 2004, was assented to in December, 2002, and therefore
    the transition provisions were known to govern the future limitation
    consequences of potential claims that may have arisen by that time.

[26]

I conclude, therefore, that the motion judge erred in
    his approach to the issue of discoverability, and that on consideration of all
    the relevant evidence, the proposed new claims were discoverable, and
    therefore, discovered, before January 1, 2004. As a result, rule 2 of s. 24(5)
    applies, making the former limitation period applicable. That means that the
    new proposed claims are not statute barred.

[27]

Because of this conclusion on issue #1, it is not
    necessary to address the second or third issues. Nevertheless, I do want to
    observe in respect of the conclusion of the motion judge regarding Dr. Reids
retainer, that
the record does not suggest that Dr. Reid was
    engaged to advise the plaintiffs whether they had any further claims arising
    out of the birth and after-care of the infant beyond the claims in the existing
    statement of claim. If that was his mandate, then he should have been retained
    and asked to report within the limitation period. That may or may not require a
    report within six months, depending on the circumstances of each case. If that
    was not his retainer, so that there
were
no limitation
    issues expected to be addressed by him, then it is up to counsel to address
    timeliness with an expert. There is no six month rule.

Result

[28]

The appeal is
    allowed in respect of the proposed new claims by the infant plaintiff and the
    derivative claims of the adult plaintiffs. Costs of the appeal to the appellants
    fixed at $12,000 inclusive of disbursements and HST.

Signed:          K. Feldman
    J.A.

I agree S.
    T. Goudge J.A.

I agree
    David Watt J.A.

RELEASED: STG February 9, 2011

[1]
The
Family Law Act
claims brought by the
    adult plaintiffs are derivative claims, and as such, they are subject to the
    same limitation period that applies to the principal claim:  see
Smith
    Estate v. College of Physicians & Surgeons (Ontario)
(1998), 41 O.R.
    (3d) 481 (C.A.).

[2]

This position was not consistent
    with the assertion in counsels affidavits that the claims were not
    discoverable until he spoke to Dr. Reid.

[3]

I recognize the possibility of
    self-representation. In that event, the self-represented persons would have the
    same expectations regarding reasonable actions in the circumstances.


CITATION:
Mauldin v. Hryniak, 2011 ONCA 12
6

DATE: 20110211

DOCKET: M39686-M39709/C52912-C52913

COURT OF APPEAL FOR ONTARIO

Doherty J.A.

BETWEEN

Fred
          Mauldin, Dan Myers, Robert Blomberg, Theodore Landkammer, Lloyd Chelli,
          Stephen Yee, Marvin Cleair, Carolyn Cleair, Richard Hanna, Douglas Laird,
          Charles Ivans, Lyn White, and Athena Smith

Plaintiffs (Respondents)

and

Cassels
          Brock & Blackwell LLP, Gregory Jack Peebles, and
Robert Hryniak

Defendants (Appellant)

BETWEEN

Bruno
          Appliance and Furniture, Inc.

Plaintiff (Respondent)

and

Cassels
          Brock & Blackwell LLP, Gregory Jack Peebles, and
Robert Hryniak

Defendants (Appellant)

Sarit E. Batner, for the appellant

David Alderson and Javad Heydary, for the respondents

Heard:
February 10, 2011

On motions for extensions of time to perfect the appeals and
          on motions for stays pending the appeals and on appeal from the order of
          Justice A. Duncan Grace of the Superior Court of Justice dated October 22,
          2010, with reasons reported at 2010 ONSC 5490.

ENDORSEMENT

[1]

In an endorsement released January 24, 2011, Justice
    Weiler ordered the appellant to post an irrevocable letter of credit in the
    amount of $950,000 (the letter of credit) with the accountant of the Superior
    Court of Justice by February 3, 2011.  The
    appellant has been unable to do so and brings this motion seeking an order to
    facilitate the obtaining of the required letter of credit.  The deadline for posting the letter of credit
    was extended by OConnor A.C.J.O. to todays date, February 10, 2011.

[2]

The appellant alleges that he cannot fund the letter of
    credit except by making the property located at 66 Cotswold Crescent, Toronto,
    Ontario (the matrimonial home) available as security for the loan needed to
    fund the letter of credit.  The judgments
    against the appellant obtained by the respondents at trial are presently
    registered against title on the matrimonial property. The appellants wife,
    Suzanna Mandryk [Ms. Mandryk], claims a beneficial owner interest in the
    matrimonial home.  She also holds a
    charge in the amount of $1,000,000 placed on the home in early December.  Assuming that charge is valid, (a disputed
    issue), it presently ranks ahead of the respondents trial judgments.

[3]

Ms. Mandryk was not a party to the proceedings at trial
    and is not a party to the appeal or this motion.  She is not bound by any order I might
    make.  However, I am assured by counsel
    for the appellant that Ms. Mandryk is prepared to assist her husband in making the
    necessary arrangements to allow him to provide security on the matrimonial home
    that will permit CIBC to fund the letter of credit.  I rely on that assurance in making this order
    allowing the appellant an extension of the time needed to perfect his
    appeal.  Without those assurances, the
    request for an extension of time would be seen in a different light.

[4]

As I read the voluminous material filed on the motion
    and cross-motion, the parties agree that the Canadian Imperial Bank of Commerce
    (the CIBC) should have a first charge on the matrimonial home to permit the
    funding of the $950,000 irrevocable letter of credit that Weiler J.A. ordered
    posted as security by the appellant as a term of her order granting the
    appellant an extension of time to perfect his appeal.

[5]

The parties disagree as to what additional terms,
    beyond those needed to give CIBC a first charge on the matrimonial home are
    required.

[6]

I am satisfied that the intention of the order of
    Weiler J.A. can be implemented by the following variation of the terms of her
    order:

·

The CIBC may place a charge (the CIBC charge) in
    the amount of $1,000,000 on the matrimonial property for the purpose of
    providing to the appellant with the funding necessary to obtain a letter of
    credit from the CIBC in the amount of $950,000;

·

The trial judgments in favour of the respondents
    dated October 22, 2010 and presently registered against the title to the
    matrimonial home shall be postponed in favour of the CIBC charge described
    above;

·

The charge in favour of Ms. Mandryk registered against
    title on the matrimonial home on December 3, 2010 in the amount of $1,000,000
    shall be postponed both to the CIBC charge described above and the trial
    judgments in favour of the respondents and currently registered against the
    property;

·

The appellant will have until 4:00 p.m. on February
    22nd to post an irrevocable letter of credit in the amount of $950,000 with the
    accountant of the Superior Court of Justice.  The accountant will hold that letter of credit pending further order of
    this court.

·

If the appellant has not provided the written
    undertaking to the Registrar described in para. 42 of Weiler J.A.s judgment,
    he shall do so immediately.  The
    undertaking is subject only to any steps the appellant must take in respect of
    the matrimonial home so as to give effect to the terms of this order or the
    order of Weiler J.A.

[7]

Counsel for the appellant does not seek any variation
    in the date set for the perfection of the appeal.  The perfection date of March 7, 2011 fixed by
    OConnor A.C.J.O. remains in force.

[8]

Counsel for the appellant submits that I should make it
    clear that if the letter of credit is ultimately ordered paid out to the
respondents, that
the amount of the payment counts against
    the appellants interest in the matrimonial home and not Ms. Mandryks interest.  If I understand the respondents position
    correctly, they contend that if the letter of credit is ordered paid to them,
    they are still entitled to pursue fully whatever interest the appellant has in
    the matrimonial home without regard to the amount recovered through the letter
    of credit.

[9]

I confess to difficulty understanding the logic of the
    respondents position.  They maintain and
    have always maintained that the appellant has an interest in the matrimonial
    home.  If he borrows money against the matrimonial
    home to fund the letter of credit, and if the letter of credit is ultimately
    paid out to the respondents in partial satisfaction of the judgment, it seems
    to me that the payment is the product of the appellants interest in the
    property.

[10]

In any event, now is not the time to decide the issue
raised
above.  If the
    appeal is dismissed, the respondents will presumably apply for an order
    directing that the proceeds of the letter of credit be paid out to them in
    partial satisfaction of the trial judgments.  Presumably, that order will issue and the respondents will then take
    whatever steps they can to recover the amounts that remain owing on the
    judgments.  Should those steps include
    attempts to realize on any value remaining in the matrimonial home, the
    respective interests, if any, of the appellant and Ms. Mandryk and the effect on
    those interests of the payment out on the letter of credit will have to be
determined.

[11]

It would not be helpful for me at this time to
    speculate on the answers to questions that might arise in the future,
    especially in light of the uncertainty as to the nature and extent of the interests
    that the appellant and Ms. Mandryk have in the matrimonial home.  Ms. Mandryk should also have the opportunity
    to be represented in the forum in which these matters are ultimately
    determined.

[12]

It is important that this appeal be perfected by the
    March 7
th
date and that it be heard expeditiously.  I will make myself available to address any
    issues arising out of this order or any issues with respect to scheduling of
    the appeal.  Counsel should obtain a date
    for the hearing of the appeal as soon as it is perfected.  I am available to assist in obtaining an
    early date.

[13]

Neither party got everything they wanted on this
    motion.  No costs.

Doherty J.A.


CITATION:
Ontario
          (Labour) v. United Independent Operators Limited, 2011 ONCA 135

DATE:
          20110217

DOCKET: C51442

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Gillese JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario (Ministry of
          Labour)

Appellant

and

United Independent Operators Limited

Respondent

Grainne
McGrath, for the appellant

Karen Fields, for the respondent

Heard: November 4, 2010

On appeal from the judgment of Justice Peter Tetley of the
          Ontario Court of Justice, dated October 2, 2009, dismissing the appeal from
          the acquittal entered on November 8, 2007 by Justice of the Peace James E.
          Oates of the Ontario Court of Justice.

COSTS ENDORSEMENT

[1]

By decision dated January, 18, 2011, the Ministry was
    ordered to pay the respondents reasonable legal costs of the appeal.  After reviewing the parties submissions, we
    are of the view that a reasonable costs award for the appeal is $10,000, all
    inclusive.  Order to go accordingly.

Doherty J.A.

K. Feldman J.A.

E. E. Gillese
    J.A.


CITATION:
Partners
          in Psychiatry v. Canadian Psychiatric Association, 2011 ONCA
          109

DATE: 20110209

DOCKET: C52722

COURT OF APPEAL FOR
          ONTARIO

Armstrong, Epstein and Karakatsanis JJ.A.

BETWEEN

Partners in Psychiatry

Applicant
          (Appellant)

and

Canadian Psychiatric Association

Respondent
          (Respondent in Appeal)

Brendan Van Niejenhuis
          and Justin Safayeni, for the appellant

Terry D. McEwan, for
          the respondent

Heard:  January 24, 2011

On appeal from the
          judgment of Justice Kevin W. Whitaker of the Superior Court of Justice, dated
          August 26, 2010.

ENDORSEMENT

[1]

This is an appeal from a decision on a Rule 14 application
    declaring that a partnership did not exist between the parties under the
Partnerships Act
, R.S.O. 1990,
c.P.5
. The appellant seeks a declaration that a partnership
    existed and an order that it is entitled to distribution of the partnership
    assets of goodwill and intellectual property.

[2]

The parties agree that the definition of a legal partnership
    is a (i) business, (ii) carried on in common, (iii) with a view to a profit:
    see the
Partnerships Act
, s. 2;
Backman v. Canada
, [2001] 1 S.C.R. 367,
    at para. 18;
Continental Bank Leasing
    Corp. v. Canada
, [1998] 2 S.C.R. 298, at para. 22. The parties concede that
    the project was a business.  There was no
    dispute that they intended that revenue exceed expenses. At issue in the
    application was whether the business was conducted in common and with a view to
    sharing profits.

[3]

As the Supreme Court of Canada stated in
Backman
, at para. 25: [T]o ascertain the existence of a
    partnership the courts must inquire into whether the objective, documentary
    evidence and the surrounding facts, including what the parties actually did,
    are consistent with a subjective intention to carry on business in common with
    a view to profit.

[4]

The application judge referred to the leading cases for the
    proposition that he was required to consider the express language of the
    partnership agreement in the context of all of the circumstances. However, he
    did not advert to the legal definition of partnership and he did not analyze
    the provisions of the agreements and the circumstances in relation to the legal
    elements of the test for partnership.  By
    failing to do so, he erred in law.

[5]

Instead of considering whether the evidence established a
    business carried on in common with a view to profit, the application judge
    listed partnership indicia that he found were absent in this case. Relying upon
    the absence of those indicia, and evidence that the appellants invoices to the
    project for labour and costs included some margin for profit and GST, which was
    typically not part of a partnership arrangement, he concluded there was no
    partnership. Instead, he found that the relationship between the parties was
    one of independent contractors.

[6]

Given the application judges failure to consider the
    provisions of the agreement and all the circumstances in relation to the legal
    elements of the test for partnership, his findings of mixed fact and law do not
    attract deference. This court is in a position to reach its own conclusion
    applying the correct legal test.

[7]

The respondents executive director testified that the
    respondent conducted business with the appellant to develop and deliver
    continuing professional development programs, under the name CPA CPD
    Institute with a view to a profit. The partnership agreements provided for
    shared responsibilities for program fund-raising, content development, program
    materials and on-site execution of all programming for the CPA CPD Institute.
    The revenue was to be collected by the respondent and kept in a separate
    account entitled the CPA CPD Institute. Expenses paid by each party were to be
    invoiced to the CPA CPD Institute. Both parties were required to approve any
    changes to the estimated revenues and costs and each party was entitled to an
    equal sharing of profits as management fees after expenses were paid. The
    parties course of conduct was consistent with the terms of the agreements. A
    reconciliation for the special account showed that each party submitted
    expenses and received half the profits as management fees.

[8]

We are satisfied, on this
record, that
the parties were carrying on a business, in common, with a view to profit. Both
    parties contributed money, knowledge and skill to the CPA CPD Institute; they
    exercised mutual control of various aspects of the CPA CPD Institutes business
    and operations; and they shared the profits: see
Backman
, at para. 21 and
Continental
    Bank
, at para. 24.

[9]

We are satisfied that the absence of some common partnership
    indicia and the other circumstances relied upon by the respondent are not
    determinative given the totality of the circumstances. While the CPA CPD
    Institutes account was operated by the respondent, the respondent was the
    accredited party for providing the continuing professional development and the
    account was subject to the partnership agreement. While the respondent did not
    submit a formal invoice to the account, the reconciliation of the account
    recorded all expenses paid by the respondent and all management fees paid out
    to the respondent as well as to the appellant. While half the profits were paid
    out as a management fee, both parties took their share of the profit by way
    of management fee, a defined term in the agreement. With respect to the
    testimony that the appellants invoices for expenses included a margin for
    overhead and profit, it appears that both parties were entitled to invoice
    for costs that reflected their contribution, which often included time and
    overhead. The failure to address the issue of liability for losses in the
    agreement did not arise given that most of the significant revenue from
    sponsors was known when the individual agreements were signed. In any event,
    the failure to address the issue of liability for losses and the mark-up for
    GST are not sufficiently compelling given the relationship as a whole - the
    express terms of the agreement, the admissions of the respondent, and the
    conduct reflected in the reconciliation of the special account for the CPA
    CPD Institute.

[10]

As a result, the appellant is entitled to a declaration that
    the parties were in a partnership. However, further evidence is required for a
    determination on the issue of the partnership assets and their value.

[11]

The appeal is allowed, the decision is set aside, including
    the costs award, and there shall be a declaration of a partnership between the
    parties. The partnership dissolved as of December 31, 2009.

[12]

The matter is remitted to the Superior Court of Justice for a
    trial of an issue, to determine the value of the goodwill and whether the name
    CPA CPD Institute and the logo were assets of the partnership, and if so their
    value. Depending on the result of the aforesaid the appropriate order shall be
    made by the trial judge concerning the payment of the value to the relevant
    party or parties. The trial judge shall determine the costs for the proceedings
    below.

[13]

Costs of this appeal to the appellant, fixed in the amount of
    $20,000, inclusive of disbursements and applicable taxes.

Armstrong J.A.

Epstein J.A.

Karakatsanis J.A.


CITATION:
Paulsson
v. Cooper, 2011 ONCA 150

DATE: 20110228

DOCKET: C50917

COURT OF APPEAL FOR ONTARIO

Rosenberg, Goudge and Feldman JJ.A.

BETWEEN

Gunnar S. Paulsson

Plaintiff (Appellant)

and

Leo Cooper,
The Board of Trustees of and for the
          University of Illinois
,
The American Association for the Advancement
          of Slavic Studies,
and Slavic Review

Defendants (
Respondents
)

Gunnar S. Paulsson, in person

John J. Adair, counsel for the
Respondents

Heard:  August 9, 2010

On appeal from the order of Justice J. Patrick Moore of the
          Superior Court of Justice dated July 21, 2009, with reasons reported at
          (2009) CanLII 38795 (ON S.C.).

Feldman J.A.:

[1]

The respondents, The American Association for the
    Advancement of Slavic Studies (Association) and The Board of Trustees of and
    for the University of Illinois (Board), published a book review of the
    appellants book in an academic journal published in the United States, the Slavic
    Review.  The edition of the Slavic Review
    containing the book review in question was distributed outside the United
    States, including in Ontario.

[2]

The appellant, an Ontario resident, commenced a libel
    action in Ontario against the respondents and the author of the book review,
    Dr. Leo Cooper, claiming that the book review defames him as a scholar, has
    damaged his academic reputation, and has prevented him from advancing in his
    academic career.

[3]

None of the defendants to the action resides in
    Ontario. The respondents reside in the United States, while the defendant
    author, Dr. Cooper, resides in Australia. Cooper has not defended this action
    and has been noted in default.

[4]

The respondents brought a motion for an order to set
    aside service
ex juris
or, in the
    alternative, to stay the action on the basis that there is no real and substantial
    connection between the subject matter of the proceeding and Ontario, or that
    Ontario is not a convenient forum for hearing the proceeding.  The Board also asserted that it is immune
    from a libel action under immunity provisions in the Illinois
State Immunity Act
, 110 ILCS 305.

[5]

The motion judge granted the motion and ordered that
    the plaintiffs action be stayed against the respondents. He concluded that the
    Ontario court could not assume jurisdiction in the action, and alternatively,
    that Ontario is not the convenient forum to try the action. For the reasons
    that follow, I would allow the appeal.

Facts

[6]

The appellant is a Canadian citizen who has lived in
    Ontario since 1958, except for the period between 1992 and 2002, when he
    studied and worked abroad in pursuit of an academic career with a focus on the
    Holocaust in Poland. He attended Oxford University on a Commonwealth
    Scholarship and obtained his doctoral degree in 1998. His dissertation won the
    International Fraenkel Prize in Contemporary History in 1998. A revised version
    of the dissertation was published in 2002 as a book titled,
Secret City: The Hidden Jews of Warsaw, 1940-1945
(New Haven: Yale University Press, 2002), which is the subject of the allegedly
    libellous book review. The book won the biennial Polish Studies Association
    Prize in 2004.

[7]

From 1994 to 1998, while earning his degree at Oxford,
    the appellant was also a full-time lecturer in Jewish History and Holocaust
    Studies as well as the Assistant Director and subsequently Director of the
    Stanley Burton Centre for Holocaust Studies at the University of Leicester in
    the United Kingdom. In 2001, he was awarded the Koerner Fellowship in Jewish
    Studies at Oxford University. In 2002, he was awarded the Pearl Resnick
    Fellowship (for post-doctoral research) at the United States Holocaust Memorial
    Museum. He was invited to sit on the Advisory Board of the future Museum of the
    History of the Polish Jews in Warsaw. In 2004, two of his scholarly articles on
    the Holocaust were published in an anthology on the subject.

[8]

The appellant wrote his book,
Secret City
, while in the United Kingdom. The book was based in
    part on research the appellant conducted while at the University of Toronto, and
    was initially published in 2002 when he was once again a resident of Ontario.  It was released in Britain in January 2003
    and in North America in March 2003.

[9]

The impugned book review appeared in the Slavic Review
    in June 2004. As noted, it was authored by Dr. Leo Cooper, an Australian
    resident and a Senior Fellow at the University of Melbourne in Australia.

[10]

The Slavic Review is published by the respondent
    Association, which is a non-profit corporation incorporated in New York, with a
    national office in Massachusetts. The respondent Board provides certain
    financial and editorial support to the Slavic Review because its current
    editor-in-chief, Professor Mark Steinberg, is a tenured professor at the
    University of Illinois. The Board is not the publisher of the Slavic Review.

[11]

In his statement of claim, the appellant contends that
    the defendant Cooper fabricated quotations, took other quotations out of
    context, and ignored information contained in the book that would have directly
    contradicted Coopers criticisms of the
Secret
    City
. The appellant claims that the defamatory review of his book has
    damaged his reputation in his academic field and has contributed to both the
    decline in sales of the book and his failure to obtain an academic position in
    his field despite his excellent credentials. He claims to have applied for
    positions both locally and abroad but has been unsuccessful in securing any
    academic position.
[1]

[12]

According to the evidence of the respondents, 81 copies
    of the June 2004 edition of the Slavic Review were distributed in Ontario. The
    total circulation of the Slavic Review in 2004 was 3,528 copies. The June 2004
    edition was not available on newsstands and the book review was not posted on
    either the Associations website or the Slavic Reviews website.

[13]

As noted by the motion judge, at para. 15, the
    appellant had no knowledge of where in Ontario the Slavic Review was available
    in 2004 but he did an investigation in 2008 and counted some 24 libraries that
    carry it. The appellant deposed that the June 2004 edition was available in
    paper and electronic form at most large university libraries in the province,
    as well as the Toronto Public Library and the National Library of Canada in
    Ottawa. The June 2004 edition became available online in 2005 on the JSTOR
    website, which archives academic articles.

[14]

To provide a perspective on the nature of public access
    to and the availability of the Slavic Review, the appellant deposed that, after
    learning of the book review from a colleague in Australia, he went to the Robarts
    Library at the University of Toronto, where
he
found the Slavic Review and then later read it online on JSTOR, also accessed
    through the University of Toronto.

The decision of the motion judge

[15]

The motion judge first considered whether the Ontario
    court should assume jurisdiction on the basis that there is a real and
    substantial connection between Ontario and the action. In assessing this issue,
    he applied the eight criteria from this courts decision in
Muscutt

v. Courcelles
(2002), 60 O.R. (3d) 20. The motion was heard and
    decided before this courts decision in
Van
    Breda v. Village Resorts Ltd.
, 2010 ONCA 84, application for leave to
    appeal granted, 2010 CanLII 37845 (S.C.C.), which revisited and revised the
Muscutt
approach. The motion judge also
    did not have the benefit of two subsequent decisions of this court involving
    interprovincial and international libel:
Banro
    Corp. v. Les
É
ditions
É
cosociété
    Inc.,
2010 ONCA 416, affirming 2009 CanLII 7168 (ON S.C.), application for
    leave to appeal granted, 2011 CanLII 1063 (S.C.C.) and
Black v. Breeden
, 2010 ONCA 547, application for leave to appeal
    granted, 2010 CanLII 75965 (S.C.C.).
[2]

[16]

In reviewing the first two
Muscutt
criteria  the connection between Ontario and the
    plaintiffs case and the connection between Ontario and the defendants   the motion
judge
minimized both. The respondents had accepted, and the motion judge agreed with,
    the following submission by the appellant (at para. 30):

[I]n a claim in libel, the tort of defamation is
    committed where the publication takes place and that is where the offending
    words were heard, read or downloaded and if the alleged defamatory statements
    were published or republished in Ontario and are alleged to have caused injury
    in Ontario, then the connection between the subject matter of the actions and
    Ontario is significant.

[17]

However, the motion judge found, at para.
33, that
the distribution of the Slavic Review in Ontario
    was minimal and there was no evidence that the appellant had suffered
    significant damages here. He observed that no prospective employer suggested
    that the book review negatively influenced any hiring decision affecting the
    appellant.  In addition, at least one
    other Ontario academic had criticized the appellants book in the same way that
    the defendant Cooper had.  In the words
    of the motion judge, at para. 34: Reputational damage, if any, may have come from the Ontario academic
    rather than from Coopers words.

[18]

In assessing the connection between Ontario and the
    respondents, the motion judge noted, at para. 35, that they had no connection
    to Ontario aside from allowing 81 copies of the Slavic Review to be distributed
    to 24 Ontario libraries. The motion judge further observed that the University
    of Illinois did not publish the Slavic Review and did not control its editorial
    content. He pointed out that the book review was not on the respondents
    websites and would only have been available on the JSTOR website one year after
    original publication. He also observed that there was no evidence that anyone
    in Ontario had read the review, or that the appellant had suffered damages in
    Ontario because of anyone reading the review, or that the respondents should
    have assumed that the appellant would suffer damages in Ontario by allowing 81
    copies to be distributed here.

[19]

Turning to the third and fourth
Muscutt
criteria of possible unfairness to the parties in assuming
    or refusing jurisdiction in Ontario, the motion judge treated these two factors
    as neutral.

[20]

The motion judge was of the view that the next three
Muscutt
criteria  the involvement of
    other parties to the suit, the courts willingness to recognize and enforce a
    similar extra-provincial judgment rendered on the same jurisdictional basis,
    and whether the case is international or interprovincial in nature  favoured
    the respondents.  Regarding the
    involvement of other parties, the motion judge found it significant that none
    of the defendants is from a Canadian jurisdiction. On the issue of Ontarios
    willingness to enforce an extra-provincial judgment in similar circumstances,
    the motion judge concluded that, because damage to the appellant in Ontario was
    not reasonably foreseeable, this factor favoured the respondents. As for the
    nature of the case, the motion judge observed that the need for caution in
    assuming jurisdiction is more compelling in an action involving only foreign
    defendants.

[21]

Finally, the motion judge treated the eighth
Muscutt
factor  comity and the
    standards of jurisdiction, recognition and enforcement prevailing elsewhere
    as neutral, because there was no expert evidence led on matters of foreign law.

[22]

The motion judge concluded that there was no real and
    substantial connection to Ontario that would allow jurisdiction to be assumed.
    He also decided that, in any event, Ontario was not the most convenient forum
    to try the action. However, he did not determine what other jurisdiction would
    constitute the appropriate forum having regard to the seven relevant factors
    referred to in
Muscutt,
at para. 41.
[3]

Issues

[23]

The first issue on this appeal is whether the motion
    judge erred in his analysis of whether Ontario should assume jurisdiction over
    the out-of-province respondents. If he did so err, then a second issue is
    whether the Ontario court should decline to exercise its jurisdiction on the
    ground that there is a more appropriate forum to try the action.

[24]

I conclude that the application of the test for assumed
    jurisdiction in
Van Breda
indicates
    that the Ontario court may properly assume jurisdiction over the out-of-

province
respondents. Moreover, there is no other more appropriate forum for hearing the
    appellants claim and thus the Ontario court should not decline to exercise its
    assumed jurisdiction.

Analysis

Issue 1:  Did the motion judge err in his analysis of whether Ontario should
    assume jurisdiction over the respondents?

[25]

As discussed in a number of appeals that have recently
    come before this court,
[4]
the
Van Breda
decision has modified
    the approach to be taken to the analysis of when Ontario courts should assume
    jurisdiction over a claim involving out-of-province defendants.  It has done so by changing the emphasis and significance
    to be accorded to the eight
Muscutt
criteria.  And, importantly, it has
    introduced the concept of presumptive jurisdiction in situations where the
    claim satisfies one of the conditions for serving originating process outside
    of Ontario without a court order, as set out in rule 17.02 of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194 (with the exception of subrules 17.02 (h) and (o)).

[26]

In light of
Van
    Breda
, the first stage of the analysis in this case involves determining
    whether service
ex juris
was properly
    made in accordance with rule 17.02(g) in respect of a tort committed in
    Ontario, as alleged by the appellant. If the claim falls within this subrule,
    then a real and substantial connection is presumed to exist and the respondents
    will bear the burden of rebutting that presumption.

[27]

In assessing whether the alleged tort of defamation was
    committed in Ontario, it should be noted that this is not a case where
    publication in Ontario of the impugned book review is alleged to have occurred
    exclusively over the Internet, in contrast with
Black v. Breeden
. Rather, 81 paper copies of the June 2004 edition
    of the Slavic Review were distributed in, and therefore published in, Ontario.
    As stated in Raymond E. Brown,
The Law of
    Defamation in Canada
, looseleaf, 2
nd
ed. (Scarborough: Carswell,
    1999), vol 1. at p. 7-80:

Publication occurs in the place where it is
    actually communicated to a third
person, that
is where
    someone actually sees or hears it.  This
    may not necessarily be the place from which the communication originated; nor
    is it necessarily the place where the defendant utters and writes the
    defamatory words.  Thus, publication
    occurs at ... the place wherever a letter, newspaper or magazine is read.
    [Citations omitted.]

Accordingly, the
    alleged libel, if proved, is a tort committed in Ontario, which raises the
    presumption of jurisdiction.

[28]

As explained in
Van
    Breda
, at paras. 72 and 109, that presumption can be displaced by evidence
    from the respondents that the real and substantial connection test is not met, despite
    the presumption.
Van Breda
has also
    refined
Muscutt
by focusing the
    courts analysis on the connections between both the plaintiffs claim and
    Ontario and the defendant and Ontario. These connections are the most
    significant factors at the second stage of the assumed jurisdiction analysis.

[29]

I respectfully
    disagree with the motion judges conclusion that these connections are weak.
    Dealing first with the connection between the appellants claim and Ontario,
    the appellant is a Canadian citizen and long-time resident of Ontario. Although
    he studied and worked in locations outside Ontario for ten years from 1992 to
    2002, during which time he obtained his important academic credentials and wrote
    his book, his place of residency since 2002 is Ontario. Reputational damage
    follows the person whose reputation is impugned.  The following
    observation of the majority of the Supreme Court of Canada in
Bou Malhab v. Diffusion Métromédia CMR Inc.
,
    2011 SCC 9, at para. 46, while made in the context of the civil law of
    defamation in Quebec,
remains
relevant: The right to
    the protection of reputation, which is the basis for an action in defamation,
    is an individual right that is intrinsically attached to the person, whether
    the person is legal or natural. To the extent damage to reputation is
    ultimately proved (and in the case of libel, damage flows from a finding of
    liability)
[5]
,
    that damage is suffered in Ontario.

[30]

Generally speaking, the plaintiff in a defamation
    action will typically suffer the most injury to his or her reputation in the
    jurisdiction where he or she resides.  As
    was noted by Roberts J. in
Banro
, at
    para. 27, the plaintiff in a libel action may be just as content to obtain a
    court order vindicating the persons reputation in his or her home province
    even if the plaintiff is ultimately unable to recover any monetary damages
    awarded.

[31]

Finally, I do not accept the respondents argument
    that, because the appellant applied for only one job in Ontario after the
    publication of the book review, this somehow undermines the connection between
    the alleged reputational damage and Ontario. The fact that the alleged damage
    to the appellants reputation could be expected to hurt his job prospects in
    applying for positions at universities world-wide does not change the fact that
    his reputation attaches to him in the province where he resides and where he
    has been a long time resident.

[32]

With respect to the connection between Ontario and the
    respondents, I acknowledge that neither of them has a physical connection to
    Ontario. However, in their respective roles in preparing, producing and
    distributing the Slavic Review, each is involved in seeing that the journal is
    available, particularly in the international academic community of which the
    journal forms part of the scholarly discourse in the area of Slavic studies. As
    was explained in the affidavit of the Executive Director of the Association,
    Mr. Gorenburg, the Slavic Review is an international interdisciplinary
    academic journal focused on the study of Eastern Europe, Russia, the Caucasus,
    and Central Asia. The Slavic Review contains articles of original and
    significant research and interpretation, reviews of scholarly books and films,
    and topical review essays and discussion forums.

[33]

When 81 copies of the June 2004 issue of the journal
    were distributed to university and public libraries throughout Ontario, the
    respondents clearly intended that these volumes were to be read and form part
    of the academic discourse in the field of Slavic studies. In my view, this is
    the type of activity in the forum identified by the Supreme Court of Canada in
Moran v. Pyle National (Canada) Ltd.
,
    [1975] 1 S.C.R. 393 and referred to by Sharpe J.A. in
Van Breda
, at para. 89, as follows:

Where a defendant could reasonably foresee that its
    conduct would cause harm within the forum by putting a product into the normal
    channels of trade and knows, or ought to know, that the product would be used
    in the forum and that if defective could harm a consumer in the forum,
    jurisdiction may be assumed.

[34]

I agree with the observation of Nordheimer J. in
Barrick Gold Corp. v. Blanchard & Co.
,
    2003 CanLII 64238 (ON S.C.), at para. 44, that, in the libel context, the
    product liability example from
Moran
applies
    to statements:

If a person issues a statement and places that
    statement in a normal distribution channel designed for media attention and
    publication, a person ought to assume the burden of defending those statements,
    wherever they may damage the reputation of the target of those statements and
    thereby cause the target harm, as long as that harm occurred in a place that
    the originator of the statements ought reasonably to have had in his, her or
    its contemplation when the statements were issued.

[35]

I disagree with the motion judges conclusion that the
    respondents could not reasonably have foreseen that their conduct would result
    in harm to the appellant in Ontario.  In
    the motion judges words, at paras. 37-38:

[The appellants] book was published in the UK at a
    time when he lived and worked there. The evidence does not support a conclusion
    that the [respondents] should have foreseen that he had returned to live in
    Ontario or that their conduct would result in harm to him in Ontario.

This factor certainly favours the [respondents]
    position.

[36]

I first note that, contrary to the motion judges
    remark, the appellants book was published in the U.K. in 2003,
after
the appellant had returned to
    Ontario to live.  In any event, in my
    view, the fact that the respondents may not have known that the appellant was
    living in Ontario when the impugned book review was published is not
    determinative. It is reasonable to expect the respondents to have known that
    the appellant would suffer most harm to his reputation in his place of
    residence at the time the book review was originally placed in a normal
    distribution channel for the attention of its intended academic audience.

[37]

I also would not give effect to the respondents
    submission that the limited number of copies of the Slavic Review distributed
    in Ontario, which is said to represent only 2.4% of the total distribution of
    the June 2004 issue, is determinative of its impact or its intended penetration
    in Ontario. The copies of the June 2004 Slavic Review were distributed to
    university and public libraries. In those locations, the volume is broadly
    available and certainly very accessible by the target academic community. I
    reject the motion judges observation that there is no evidence that anyone in
    Ontario actually read the Cooper book review. It certainly does not lie in the
    mouth of the respondents to suggest that no one would read their journal.
    Moreover, as noted in
The Law of
    Defamation
, vol. 3, at p. 22-58:

It is not necessary to every case to prove directly
    that the words were brought to the attention of some third person.  Publication may be shown by circumstantial
    evidence.  Thus, if books are circulated
    in a lending library, that is evidence of publication to library subscribers.
    [Citations omitted.]
[6]

[38]

The motion judge in assessing the connection criteria
    suggested that it is incumbent on the appellant to prove on this motion that
    the impugned article actually caused him damage to his reputation in
    Ontario:  see paras. 33 and 36 of the
    reasons. On several occasions, he pointed to the appellants failure to adduce
    evidence establishing his allegation of reputational damage as favouring the
    respondents position on the motion.  In
    my view, this approach conflates the issue of where the damages allegedly occurred,
    which is a proper consideration on a jurisdiction motion, with the issue of
    proving actual damages, which is an issue that will be decided at trial (or,
    potentially, on a motion for summary judgment.)

[39]

The respondents submit that the decision of this court
    in
Bangoura v. Washington Post
(2005), 202 O.A.C. 76, additional reasons at 206 O.A.C. 325, application for
    leave to appeal dismissed, 2006 CanLII 4742 (S.C.C.), applies to the analysis
    of the connection criteria in this case and supports the motion judges
    conclusion that there is no real and substantial connection to Ontario. I do
    not accept this submission. In
Bangoura
,
    the plaintiff took up residence in Ontario three years after the publication of
    two allegedly defamatory newspaper articles in the
Washington Post
. He then commenced an action in Ontario for
    defamation against the newspaper and three of its reporters.

[40]

Armstrong J.A. for the court overturned the motion
    judges finding of a connection between the forum and the plaintiffs claim, noting
    at para. 23 that the plaintiffs alleged damages would have been suffered three
    years before he moved to Ontario. Also, in overturning the finding of a
    connection between the defendants and Ontario, Armstrong J.A. stated at
    para. 25 that [t]o hold otherwise would mean that a defendant could be sued
    almost anywhere in the world based upon where a plaintiff may decide to
    establish his or her residence
long after
    the publication of the defamation
 (emphasis added).  In contrast, in the present case, the
    appellant has resided in Ontario for much of his life and he had returned to live
    in Ontario for over a year before the publication of the impugned book review.
    The concerns expressed in
Bangoura
about a plaintiff attempting to sue in a forum in which he or she did not begin
    to reside until long after the original publication do not apply.

[41]

My conclusion on the connection criteria is that there
    is ample evidence of a substantial connection between the appellants claim and
    the forum and a relevant connection in the libel context between the
    respondents and the forum.

[42]

Van Breda
instructs that the remaining criteria from
Muscutt
are to be treated not as separate tests or factors, but rather as general
    legal principles that bear upon the analysis of whether there is a real and
    substantial connection with Ontario. In light of my conclusion on the strength
    of the connection of the parties to the forum, I will address these principles
    only briefly.

[43]

The motion judge treated the fairness considerations as
    neutral, and I would not interfere with that finding.

[44]

In considering the criterion of the involvement of
    other parties to the suit, the motion judge was of the view that because there
    are no domestic defendants as parties, this factor favours the respondents.
Van Breda
makes it clear, at paras. 102
    and
109, that
the involvement of other parties to the
    suit is only relevant in cases where that is asserted as a possible connecting
    factor, or in relation to avoiding a multiplicity of proceedings under
forum non conveniens
. In light of
Van Breda
, this is not a relevant
    consideration.

[45]

The motion judge treated the next two
Muscutt
factors  the enforceability of
    a similar judgment obtained outside Ontario and the international nature of the
    case  as also favouring the respondents position.  Because the motion judge viewed the
    appellants claim as weak on the basis that the respondents could not have
    reasonably foreseen their actions would cause him damages in Ontario, he
    thought it less likely that Ontario would enforce a similar judgment obtained
    outside Ontario.  As discussed above, I
    believe that the motion judge erred in his view of the strength of the
    connection of the parties to the jurisdiction. I believe the connection is real
    and substantial and therefore Ontario would enforce a similarly-obtained
    judgment from outside of Ontario. Nor do I see the international nature of this
    case as displacing the presumption.

[46]

The respondents again rely on
Bangoura
in support of the motion
    judges determination that Ontario would not enforce a similar extra-provincial
    judgment.  In
Bangoura
, this court held that where a newspaper article does not
    reach significantly into Ontario (there were only seven Ontario subscribers to
    the
Washington Post
and the online
    version of the articles was only accessed in this province by the plaintiffs
    lawyer), this court should heed the cautionary warning expressed by Sharpe J.A.
    in
Leufkens v. Alba Tours International
    Inc.
(2002), 160 O.A.C. 43, that assuming jurisdiction in Ontario against a
    foreign defendant would require Ontario courts to enforce judgments pronounced
    on the same jurisdictional basis against Ontario defendants.  In the words of Armstrong J.A., at para. 34:  If the cautionary warning of Sharpe J.A. is
    not taken into account, it could lead to Ontario publishers and broadcasters
    being sued anywhere in the world with the prospect that the Ontario courts
    would be obliged to enforce foreign judgments obtained against them.

[47]

The respondents argue that because neither of them has
    any presence in Ontario, and they did not publish the Slavic Review online,
    Ontario courts could not enforce a foreign judgment rendered on the
    jurisdictional basis presented in this case.  Again, I do not accept this submission. Unlike the extremely limited
    potential Ontario audience in
Bangoura
,
    the subscribers to the Slavic Review are Ontario libraries with significant
    exposure to the entire academy of scholars in Slavic studies.  Moreover, the journal is a permanent issue,
    not a newspaper that is normally thrown away in the ordinary course. These
    facts speak against the respondents suggestion that no one in Ontario would
    have read the impugned book review, as they may not have read the seven copies
    of the
Washington Post
newspaper that
    were subscribed to in Ontario.

Conclusion on Jurisdiction

[48]

In my view,
    applying the new framework set out by this court in
Van Breda
, there is a real and substantial connection between the
    appellants claim and Ontario.  Accordingly, I would give effect to the ground of appeal that the trial
    judge erred in finding that the Ontario court may not assume jurisdiction over
    the appellants action.

Issue 2:  Should the Ontario court
    decline to exercise its jurisdiction on the ground of
forum non conveniens
?

[49]

The second issue is whether the action must be stayed
    in any event because there is some other forum more convenient and appropriate
    for the pursuit of this action and for securing the ends of justice. See
Antarres Shipping Corp. v. The Ship Capricorn
,
    [1977] 2 S.C.R. 422 at p. 448, quoted in
Amchem
    Products Inc. v. British Columbia (Workers Compensation Board)
, [1993] 1
    S.C.R. 897 at p. 919
.

[50]

In
Van Breda
,
    at para. 82, the court emphasized that the two issues, jurisdiction and forum,
    must be separately assessed and that the factors that are relevant to the
forum non conveniens
question, such as
    where the witnesses are located, play no role in assessing real and substantial
    connection.

[51]

Unlike the question of jurisdiction, which is
    reviewable by this court on a correctness basis, the decision whether there is
    a more convenient forum is discretionary and is thus subject to deference on
    appeal. The motion judge addressed the issue of
forum non conveniens
in the event that this court found him to be
    in error on the jurisdiction question. Although his alternative decision is a
    discretionary one, it is also
obiter
    dictum
in this case. In any event, although the motion judge addressed the
    relevant criteria in his analysis, he ultimately did not address the necessary
    question of whether there is another more suitable forum.

[52]

The record is clear that the defendants are from
    different jurisdictions: Australia, New York, Massachusetts and Illinois. As
    noted, the author of the book review has allowed default judgment to go,
    thereby admitting the truth of the allegations made in the amended statement of
    claim. However, if he is called as a witness, he will have to travel from
    Australia to testify, wherever the action is heard in North America. The
    plaintiff would have to travel out of Ontario along with his other liability
    and damages witnesses. Each of the respondents would have to travel to another
    state, no matter where in the United States the
action were
to be tried. Therefore, on the basis of witness availability and convenience alone,
    there is no other forum that is more convenient.

[53]

In terms of the applicable law, because the alleged
    defamation was committed in Ontario, and the alleged damages sustained there, the
    defamation law of Ontario will apply. See
Black
    v. Breeden
, 2009 CanLII 14041 (ON S.C.), at paras. 93-94, affirmed 2010
    ONCA 547;
Tolofson v. Jensen
, [1994]
    3 S.C.R. 1022; and
The Law of Defamation
    in Canada
, vol. 3, pp. 17-155 to 17-158.

[54]

The other issue raised by the respondents was whether
    the Ontario court could assume jurisdiction over the University of Illinois in
    light of the
State Immunity Act
of
    Illinois. The motion judge concluded that the record was insufficient to
    determine the matter. I would not upset that finding.

Conclusion on
Forum Non Conveniens

[55]

I conclude that on the record, it is clear that there
    is no other forum where it would be more just or convenient to try this action.

Fresh Evidence

[56]

The appellant sought to supplement the record with
    fresh evidence on the appeal. In light of my analysis of the issues on the
    record that was before the motion judge, there is no need to consider the fresh
    evidence.

Disposition

[57]

In the result, I would allow the appeal and set aside
    the order of the motion judge imposing a stay of the action and granting costs
    to the respondent in the amount of $12,000.  I would substitute an order that the Ontario Superior Court of Justice
    has jurisdiction over the appellants action.

[58]

Costs of the appeal to the appellant fixed at $6,000 inclusive
    of disbursements and H.S.T., a reduced amount because the appellant is
    self-represented.  If the parties cannot
    agree, they may make written submissions with regard to the costs of the
    original motion.

Signed:          K. Feldman
    J.A.

I agree M.
    Rosenberg J.A.

I agree S.
    T. Goudge J.A.

RELEASED: MR February 28, 2011

[1]
For the
    purpose of a jurisdiction and forum motion, the plaintiff is not required to
    prove the defamation or damages.

[2]
The
    three appeals in
Van Breda
,
Banro
and
Black
are
    scheduled to be argued in the Supreme Court of Canada in March 2011.

[3]
The
    factors listed in
Muscutt
, at para.
    41, that apply to a determination of the most appropriate forum for an action
    are as follows:

(a) the location of the
    majority of the parties;

(b) the location of key
    witnesses and evidence;

(c) contractual provisions
    that specify applicable law or accord jurisdiction;

(d) the avoidance of a
    multiplicity of proceedings;

(e) the applicable law and
    its weight in comparison to the factual questions to be decided;

(f) geographical factors
    suggesting the natural forum; and

(g)
whether
declining jurisdiction would deprive the plaintiff of a legitimate juridical
    advantage available in the domestic court.

[4]

These appeals include:
Black v. Breeden
;
Banro v. Les
É
ditions
É
cosociété
;
Dilas v. Red Seal Tours Inc. (Sunwing
    Vacations)
, 2010 ONCA 634; and
Unity
    Life of Canada v.
Worthington
Émond
Beaudin
    Services Financiers Inc.
, 2010
    ONCA 283.

[5]
See
Hill v. Church of Scientology
, [1995] 2 S.C.R.
    1130, at para. 164:
It has long been held that
    general damages in defamation cases are presumed from the very publication of
    the false statement and are awarded at large.

[6]

See
Hiltz
&
Seamone
Co.
    Ltd. v. Nova Scotia (Attorney General)
(1999), 173 N.S.R. (2d) 341
    (N.S.C.A.), affirming (1997), 164 N.S.R. (2d) 161 (N.S.S.C.), where the Nova
    Scotia Court of Appeal concluded that publication was established based on
    evidence that the allegedly defamatory report was publicly available in a Department
    of Energy library that was open to the public, even though there was no
    evidence that any person actually read a copy of the report.


CITATION:
Peterborough
          (City) v. Kawartha Native Housing Society Incorporated,
2011 ONCA 146

DATE: 20110225

DOCKET: C50793

COURT OF APPEAL FOR ONTARIO

Rosenberg, Armstrong and Juriansz JJ.A.

BETWEEN

The Corporation of the City of Peterborough

Plaintiff (Respondent)

and

Kawartha
          Native Housing Society Incorporated and Otonabee Native Homes Inc.

Defendants (Appellants)

Frank Bennett and Vilko Zbogar, for the appellants

Douglas O. Smith, for the respondent

Mervyn  D.
          Abramowitz, for the receiver Mintz & Partners Limited

Murray Klippenstein and Basil Alexander, for the
          interveners Co-operative Housing Federation of Canada, Ontario Non-Profit
          Housing Association, and National Aboriginal Housing Association

Heard: June 10, 2010

On appeal from the order of Justice Barry G. A. MacDougall of
          the Superior Court of Justice dated June 17, 2009.

COSTS ENDORSEMENT

Introduction

[1]

This endorsement addresses two matters:

(i)        The costs of a re-argued motion before
    MacDougall J. of the Superior Court of Justice; and

(ii)       The costs of the appeal.

(i)

The costs of the re-argued
    motion

[2]

We
    released our reasons for judgment in this matter on October 26, 2010.  In para. 44 of those reasons, we said that
    the boards of the corporations were
entitled to reimbursement for the
    costs of the corporations for the re-argument of the March 14, 2008 motion, which
    was re-argued on February 2, 2009.  The March
    14, 2008 motion resulted in the extension of the receivership for one year, the
    approval of certain of the receivers accounts and a disclosure order in favour
    of the boards.  The motion judge also
    ordered the receiver to pay, from the funds of the corporations, costs of
    $32,230.64 for counsel retained by the boards of the corporations.

[3]

On the re-argued motion on February 2, 2009 the
    motion judge effectively reversed his position on costs and concluded that the
    boards did not have the right to retain counsel after the receivership order
    was made, based on his interpretation of the operating agreements between the
    City of Peterborough and the corporations.  The motion judge rescinded his previous costs order of $32,130.64.  Although he had concluded that the boards did
    not have the right to retain counsel he made a costs order in favour of the
    boards in the amount of $15,000.  He declined
    to award the boards costs for non-litigation legal work of $9,412.60.

[4]

Much of the argument in the re-argued motion was
    directed to the issue of whether the boards had the right to retain
    counsel.  The boards now seek costs of
    the re-argued motion, which they claim on a partial indemnity scale in the amount
    to $34,304 and on a full indemnity scale in the amount to $46,716, now reduced
    to $44,000.

[5]

The appellant corporations are public sector
    organizations, which operate affordable rental housing for approximately 300
    persons from the Aboriginal community in the Peterborough area.  We would not expect public sector
    organizations to pay full indemnity hourly rates.  In any event, whether one applies the hourly
    rates on either a full indemnity scale or a partial indemnity scale to the
    number of docketed hours for the re-argued motion, it produces an unreasonable
    result.

[6]

On the original motion argued on March 14, 2008,
    this court awarded $7,500 in costs to the boards, a sum suggested by counsel
    for the boards.  Counsel for the boards
    submits that the re-argued motion was based on a broader record, which
    justifies a greater costs award.  The
    total hours docketed by counsel for the boards is 156.1.  Although we accept that this was the time
    spent by counsel, it appears to us excessive.  Also, a number of orders made on the original motion were not the
    subject of the re-argued motion.  The
    principal issue on the re-argued motion was the right of the boards to retain
    counsel.  This is an important issue and
    arguably attracts a costs award greater than $7,500.  That said, we do not agree that it warrants 156.1
    hours of lawyer time.

[7]

We fix the costs of the re-argued motion in the
    amount of $15,000, inclusive of disbursements and applicable taxes.

(ii)

The costs of the appeal

[8]

After
    the notice of appeal was delivered in this case, the appellants moved before
    Blair J.A. in chambers for,
inter alia
,
    direction concerning whether the appellants may be represented in the appeal by
    counsel and a declaration that the appellants have the right to have their
    legal fees and expenses for the appeal paid out of the appellants funds.

[9]

Blair
    J.A. ordered that the appellants were entitled to retain counsel for the appeal
    and that the boards of directors of the appellants were entitled to retain
    counsel on their behalf.  Blair J.A. also
    ordered,
that
the reasonable legal fees and expenses
    of counsel so retained are to be paid out of the Corporations assets, after
    assessment.

[10]

Paragraph
    47 of our reasons for judgment provides that the appellants shall have their
    costs of the appeal in accordance with the order of Blair J.A.

[11]

The
    appellants have requested that we fix the costs rather than require them to
    proceed to an assessment as provided for in the order of Blair J.A.  The respondent takes no issue with the
    appellants request.

[12]

We have decided to fix the costs as it will no
    doubt save valuable time required to educate an assessment officer on the
    factual and legal issues in the appeal.

[13]

The
    appellants bill of costs shows docketed time for Mr. Zbogar (a 2002 call) of
    170.7 hours and 30 hours for Mr. Bennett (a 1970 call).  The partial indemnity hourly rate for Mr.
    Zbogar is $150 and $500 for Mr. Bennett.  The substantial indemnity hourly rates are $200 and $750.  While these rates appear to reflect rates charged
    by counsel for private sector clients, we are of the view that the rates of Mr.
    Bennett are high for a public sector client.  The boards of the appellants filed bills of costs claiming $63,370 on a
    full indemnity scale and $46,533 on a partial indemnity scale.

[14]

As
    in the case of the re-argued motion, we are of the view that the
hours
times rates approach produces an unreasonable result
    whether on a full indemnity or partial indemnity scale.  This essentially single issue appeal simply
    does not attract costs in the range sought by counsel for the appellants.

[15]

In
    our view, a reasonable award of costs in respect of work done of this kind for
    public sector clients is $30,000.  We
    therefore fix the costs of the appeal payable to the boards of the appellants
    in the amount of $30,000 including disbursements and applicable taxes.

M. Rosenberg J.A.

Robert P. Armstrong J.A.

R. Juriansz J.A.


CITATION: R. v. Abou-Akrouche, 2011 ONCA 154

DATE:20110228

DOCKET: C49413

COURT OF APPEAL FOR ONTARIO

Winkler, C.J.O., Rosenberg and Goudge JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Najah Abou-Akrouche

Appellant

Monte MacGregor, for the appellant

Susan G. Ficek, for the respondent

Heard and endorsed: February 25, 2011

On appeal from conviction by Justice Heidi Polowin of the
          Superior Court of Justice, sitting with a jury, dated March 6, 2008.

APPEAL BOOK ENDORSEMENT

[1]

The Crown properly concedes that there was a serious error relating to
    self-defence in the main charge to the jury and again in the answer to a
    question from the jury. While self-defence was only left with the jury in
    relation to the charges of assault and assault with a weapon, in our view, the
    misdirection affected all the charges given that this was one continuous series
    of events that occurred over a very short period. In particular, the jury may
    well have taken a different view of the dangerous driving charge had they found
    the appellants initial encounter with the complainant was lawful because he
    acted in self-defence.

[2]

Accordingly, the appeal is allowed, the conviction set aside and a new
    trial ordered.


CITATION: R. v. Bedoyan, 2011 ONCA 134

DATE: 20110216

DOCKET: C52579

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Hrant Bedoyan

Respondent

Leanne Salel, for the appellant

David North, for the respondent

Heard: February 15, 2011

On appeal from the decision of the
          summary conviction appeal court dated July 30, 2010 by Justice Faye E. McWatt
          of the Superior Court of Justice, allowing the appeal from conviction entered
          on September 24, 2008 by Justice Leslie C. Pringle of the Ontario Court of
          Justice.

APPEAL BOOK ENDORSEMENT

[1]

We agree with para. 21 of the summary conviction appeal court judges
    reasons.

[2]

Accordingly, even if we were to grant leave, we dismiss the appeal.


CITATION: R. v. Blais, 2011 ONCA 133

DATE: 20110216

DOCKET: C51761

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Gerald Blais

Appellant

Crystal Tomusiak, for the appellant

Holly Loubert, for the respondent

Heard: February 15, 2011

On appeal from the sentence imposed
          on October 1, 2009 by Justice Gisele M. Miller of the Superior Court of
          Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant has served the custodial portion of his sentence.  Thus,
    the only issue on the appeal is whether a three-year term of probation is
    excessive.  In our view, it is not.

[2]

In the light of the appellants extensive record, and the rehabilitative
    objective of a probation order, a three-year term is appropriate.  At the
    sentencing hearing, the appellant expressed his intent to turn his life
    around.  We view the probation order as promoting his ability to do so.

[3]

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


RÉFÉRENCE:
R. c. Brassard, 2011
          ONCA 96

DATE:
          20110204

DOSSIER
          : C52158

COUR
          DAPPEL DE LONTARIO

Les juges
          Sharpe, Blair et Rouleau

ENTRE

Sa Majesté la Reine

Intimée

et

Bernard
          Brassard

Appelant

Nigel
Marshman
pour lappelant

Susan
Ficek
pour lintimée

Entendu et
          rendu oralement: le 1 février 2011

En appel de la décision de la juge Célynne S. Dorval de la Cour de
          justice de lOntario imposant la peine, rendue le 9 mars 2010.

INSCRIPTION

[1]

Lappelant
    a été arrêté et a plaidé coupable pour la conduite avec faculté affaiblie et la
    conduite durant interdiction.  Lappelant
    avait un long casier judiciaire y compris plusieurs condamnations liées à la
    conduite dangereuse ou reliées à lalcool.  Avant que la peine soit imposée, lappelant a passé plusieurs mois dans
    un centre de réhabilitation selon les conditions de son engagement de
    caution.

[2]

En
    imposant la peine, la juge de première instance a tenu compte du fait que
    lappelant avait été résident au centre de réhabilitation pour traiter son problème
    dalcool.  Pour cette raison, au lieu dune
    peine pénitentiaire, elle a imposé une peine de 24 mois moins un jour réduit
    par 8 mois de crédit pour la détention préventive.  Elle a rejeté largument de lappelant à
    leffet que la période passée dans le centre de réhabilitation devrait donner
    lieu à un crédit un pour un.

[3]

Lappelant
    conteste la peine imposée.  Il fait
    valoir que la juge na pas considéré deux principes.  Dabord, une peine imposée pour une
    infraction ne doit pas être démesurée à comparer à une peine imposée pour une
    infraction semblable précédente.  Dautre
    part la peine imposée devrait tenir compte de la présence dun écart important
    entre linfraction en question et la condamnation pour linfraction précédente.  Ces deux principes sont référés par
    lappelant comme les principes «
step
» et
    « gap ».  Finalement,
    lappelant fait valoir que la juge aurait du donner un crédit un pour un pour
    la période passée dans le centre de réhabilitation.

[4]

À
    notre avis, la peine imposée était raisonnable.  Lappelant accepte quune peine de 24 mois
    pour une dixième condamnation liée à lalcool au volant
nest
pas démesurée.  Lappelant avait un long
    dossier criminel y inclus neuf condamnations liées à lalcool au volant, deux
    condamnations pour la conduite dangereuse et deux condamnations pour conduite
    durant interdiction.  Deux de ces
    condamnations ont eu lieu après 1998, soit une condamnation pour la conduite
    dangereuse en 2001 et une condamnation pour conduite reliée à lalcool au volant
    en 2006, pour laquelle une peine de huit mois demprisonnement et trois ans de
    prohibition a été imposée.

[5]

À
    notre avis, la peine infligée par la juge dans la présente instance ne violait
    pas les principes de «
step
» et de
    « gap ».  De plus, en
    déterminant la peine appropriée, la juge a spécifiquement considéré le fait que
    lappelant a fait des efforts sincères envers la réhabilitation.  Ayant ainsi tenu compte de la période de
    temps passé au centre de réhabilitation pour réduire la peine imposée, la juge
    nétait pas obligée densuite donner un crédit additionnel en guise de crédit
    pour détention préventive.

[6]

Pour
    ces motifs, lappel est rejeté.

« Robert
    J. Sharpe
j.c.a
. »

« R.A.
    Blair
j.c.a
. »

« Paul Rouleau
j.c.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), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the
Criminal Code

provide
:

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

(a)
any
of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION:
R. v. D.E., 2011
          ONCA 117

DATE:  20110210

DOCKET: C48788

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O.,
          Laskin and Goudge JJ.A.

BETWEEN

Her Majesty the
          Queen

Respondent

and

D. E.

Appellant

Ian N. McLean, for
          the appellant

Dena Bonnet, for the
          respondent

Heard:
December 8, 2010

On appeal from the
          conviction entered on February 4, 2008, by Justice Michael H. Tulloch of the
          Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

This is an appeal from a conviction for sexual assault
    after a trial before a judge and jury.  On
    the basis of certain comments in the Crowns closing to the jury, the appellant
    moved unsuccessfully for a mistrial.  Following the trial judges charge to the
    jury, the appellant renewed his concerns and sought to have the jury recalled
    and cautioned about those Crown comments that the trial judge had not addressed
    in the charge.  After discussion with
    counsel, the trial judge decided not to do so.

[2]

The appellant appeals from his conviction arguing that
    the Crowns comments resulted in an unfair trial.

[3]

We disagree. Our reasons follow.

Background

[4]

The complainant first disclosed conduct by the
    appellant, her uncle, to her mother as a result of her mother asking whether anything
    inappropriate had ever happened between the two of them.  After that initial disclosure, the complainant
    gave a video-taped statement to the police.  This statement, which was given when she was
    almost ten years old, related to incidents that had occurred when she was in
    grade one, up to four years earlier.  The
    video was played before the jury, adopted by the complainant as the truth, and
    admitted as evidence in the trial on consent pursuant to section 715.1 of the
Criminal
    Code
.  The complainant also testified
    at trial.  This was essentially the
    evidence led by the Crown.

[5]

The defence called the complainants mother, C.M., who
    testified that in September of 2005 she had a conversation with the complainant
    about whether anything inappropriate had ever happened between the complainant
    and the appellant.  Her evidence was that
    the complainant had said that the appellant had touched her in a way that made
    her feel uncomfortable, touched her around her arms, the inside of her thighs.  C.M. asked the complainant if the appellant
    had touched her in the crotch or crotch area and the complainant told her
    that he had not.  However, in the complainants
    video statement to the police and subsequent testimony she had stated that she
    had been touched in various ways, including on or near her vagina.

[6]

Under cross-examination by the Crown, C.M. stated that
    when she had this conversation with her daughter she began to cry.  She agreed that it was pretty emotional and
    that the complainant began to cry as well, which made it worse.  She agreed that it was an emotional day, one
    that was difficult to recall.  She agreed
    that she did not ask for details but only asked specific questions.  She agreed that once her daughter answered
    the questions, she decided to leave it to the police to interview her.  She also agreed that her daughter used hand
    gestures (as she did in the video statement) to indicate that the appellant had
    touched her thighs. She also agreed that the complainant had told her that the
    appellant had put his hands down her pants. The complainants mother explained
    that since that day she did not ask the complainant to elaborate on what had happened
    because she didnt want to jeopardize anything. I didnt want to be  to put
    anything in her head.

Issues Raised on Appeal

[7]

The issues raised on appeal all relate to the Crowns
    closing remarks to the jury. The appellant complains that the Crown invited the
    jury to remember what it was like to be six or seven years old again when
    they considered the lack of detail in the complainants recollection of events.
     In our view, this amounted to little
    more than asking the jury to apply their common sense in assessing that
    evidence.  We cannot accede to this
    ground of appeal.

[8]

Of somewhat greater concern, later in her closing the
    Crown asked the jury to consider, when assessing inconsistencies in the
    evidence, how you would react to a traumatic event like this.  Although this comment was made in passing and
    no particular emphasis was placed on it, it invited the jury to put themselves
    in the position of a victim of a crime, rather than to remain independent
triers
of fact.  This
    was not an appropriate comment. Nonetheless, in the context of the entire
    trial, including the opening instructions and the charge to the jury read as a
    whole, we do not think it could have reasonably affected the verdict.  Although the trial judge was concerned about
    this language, he chose not to add a specific caution regarding it.  We are not prepared to interfere with his discretion
    in declining to do so.  Indeed, a
    specific caution may well have drawn more attention to the issue than it
    merited.

[9]

The appellant further argues that the Crown commented
    inappropriately about the demeanour of the complainant in her closing by
    indicating that the manner in which the complainant gave her video statement to
    the police suggested that she was embarrassed.  In our view, this is something the jury was
    quite capable of evaluating for themselves.  In the trial judges opening instructions and
    charge to the jury he emphasized that what counsel said was not evidence, and that
    the jury should rely only on their own observations and recollection of the
    evidence to determine the facts of the case. In our view that was sufficient.

[10]

The appellant also contends that the Crown made
    inappropriate comments with respect to the complainants mother, C.M. In her
    closing address to the jury, Crown counsel said:

Lets talk about [C.M.], and as you in your own
    experiences have noticed, people can sometimes remember things slightly
    differently. Now you heard from [C.M.]. She was called by the defence, and it
    was apparent by her testimony that this was clearly emotional for her, and she
    testified in a fashion that suggested perhaps that she felt a certain amount of
    guilt over what happened to her daughter. This is a mother who failed to
    protect her daughter, and of course I say that not to be critical of her, but when
    youre considering her evidence, consider her not wanting to face the full
    truth of the situation, and the full truth of what happened, and it happened
    directly under her nose, through no fault of hers. And that must be the most
    difficult thing for a parent to imagine, for a parent to have to deal with and
    live through.

[11]

The thrust of this argument is that the Crown offered
    up facts not in evidence as explanations for inconsistencies in the evidence.
    The appellant relied on the decision of the Supreme Court of Canada in
R. v.
    Rose
, [1998] 3 S.C.R. 262, in which the majority stated at
para
. 107:

In presenting closing submissions to the jury,
    Crown counsel must be accurate and dispassionate. Counsel should not advert to
    any unproven facts and cannot put before the jury as facts to be considered for
    conviction assertions in relation to which there
is no
    evidence
or which come from counsel's personal observations or
    experiences.

[12]

It is trite law that Crown counsel ought not to make
    submissions to the jury without having first established a proper evidentiary
    foundation. While there was no direct evidence that the complainants mother
    felt guilty or somehow responsible for what had happened, in our view the Crown
    was merely suggesting an inference that the jury could properly draw from the
    evidence together with the manner in which it was given.  That said
,
the choice
    of language left something to be desired.  These comments, when taken in isolation, came
    near to that which will not be countenanced by a court. However, in the context
    of the totality of the evidence and the fullness of the trial judges
    instructions and charge, we are not persuaded that the jury would have been
    unduly influenced by these comments in rendering its verdict.

[13]

Shortly thereafter, in her closing Crown counsel
    continued:

And youll recall that I asked [C.M.] if [the
    complainant] showed her that she had been touched on the vaginal area. She
    pointed to that area, and she indicated only the thigh. So it was her testimony
    that her daughter told her that [the appellant] had touched her on the arms and
    thigh. And I ask you to ask yourselves, why then would she call the police if
    that was all her daughter had told her, that he had touched her on the arms and
    the thigh. Of course, if its as [the complainant] recalls it, that she told
    her mother he touched me on the vagina and on the breasts or chest, there would
    be good reason to call the police, and we know that the police were contacted.

[14]

Finally, the appellant submits that the Crown crossed
    the line in asking rhetorically why the complainants mother went to the police
    if the complainant had not complained to her in the words the complainant said
    she used, rather than the manner in which her mother recalled. The Crown ought
    not to have engaged in this rhetoric. However, in our view, the trial judge
    acted within his discretion in deciding that this did not warrant remedial
    action. Significantly, when the evidence of the complainant and her mother is
    considered in its entirety, especially the evidence of C.M. on
    cross-examination, their evidence does not differ in any material respect,
    something the jury would have been aware of.

[15]

In his charge, the trial judge went to great lengths to
    impart fairness by reviewing C.M.s testimony in detail and reiterating the
    concerns of the defence when outlining the defences position.  He was careful not to repeat any of the
    egregious remarks from the Crowns closing remarks to the jury.

[16]

When requested to recall the jury, the trial judge
    exercised his discretion and decided not to address the appellants concerns
    further.  We are not persuaded to
    interfere with that decision.  In our
    view, his charge was balanced and fair.  While certain of the Crowns closing remarks were
    best left unsaid, taken either separately or together, they did not render the
    trial unfair.

[17]

The appeal is dismissed.

Winkler
    CJO

John Laskin J.A.

S. T. Goudge J.A.