COURT
    OF APPEAL FOR ONTARIO

CITATION: Stericycle ULC v. HealthPRO
    Procurement

Services Inc., 2021 ONCA 878

DATE: 20211210

DOCKET: C69008

Strathy C.J.O., Zarnett J.A. and
    Wilton-Siegel J. (
ad hoc
)

BETWEEN

Stericycle
    ULC

Applicant (Appellant)

and

HealthPRO Procurement Services
    Inc., Provincial Health Services Authority and Daniels Sharpsmart Canada
    Limited

Respondents (Respondents)

J. Thomas Curry, Monique J. Jilesen and
    Zachary Rosen, for the appellant, Stericycle ULC

D. Barry
    Prentice, for the respondent, HealthPRO Procurement Services Inc.

Julie
    Parla, Katherine Booth and Andrew Butler, for the respondent, Provincial Health
    Services Authority

Randy
    Sutton and Justine Smith, for the respondent, Daniels Sharpsmart Canada Limited

Heard: October 19,
    2021 by videoconference

On appeal from the order of Justice Cory A. Gilmore of the Superior
    Court of Justice, dated November 25, 2020, with reasons reported at 2020 ONSC
    7253.

Wilton-Siegel
    J. (
Ad Hoc
):

[1]

The appellant Stericycle ULC (Stericycle) appeals
    an order dated November 25, 2020 of Gilmore J. that dismissed Stericycles
    application for a declaration that it, rather than the respondent Daniels
    Sharpsmart Canada Limited (Daniels), is the primary supplier for the
    respondent Provincial Health Services Authority (PHSA) in British Columbia
    pursuant to a public tendering process conducted in 2020 by the respondent,
    HealthPRO Procurement Services Inc. (HealthPRO).

[2]

This case involves a public multiple-supplier
    tendering process under which the public authority would select one of two
    successful bids to be the primary supplier. Stericycles appeal raises issues
    of contract interpretation, bid repair and the operation of the duty of good
    faith in respect of the selection process of Daniels as the primary supplier. For
    the reasons below I would dismiss the appeal.

Factual Background

[3]

HealthPRO is a group contracting organization
    that manages procurement and contracts on behalf of its member hospitals and
    health authorities across Canada, including PHSA.

[4]

PHSA is one of several health authorities
    responsible for administering health care services in British Columbia. PHSA
    co-ordinates programs and services, including supply chain services, for over 1,000
    medical facilities under its umbrella, including hospitals and other public
    health facilities.

[5]

Stericycle is in the business of providing
    biomedical waste management services to medical facilities across Canada.
    Daniels is a competitor of Stericycle in Canada.

[6]

In 2013, HealthPRO awarded Stericycle a contract
    for biomedical waste management services under which Stericycle provided such
    services to HealthPRO members, including PHSA medical facilities. As extended,
    the 2013 Contract had an expiry date of May 31, 2020 and contained the
    following provision referred to as the Six Month Provision:

AWARDED SUPPLIER:
    Agrees to hold the then current contract pricing firm for committed members up
    to a period of six (6) months beyond the expiry date (or any option years
    exercised) to allow, if required, for the implementation of a new contract to a
    different supplier.

[7]

In 2019, HealthPRO issued a request for
    qualification (an RFQ) for a new national contract for biological waste
    management services. The purpose of the RFQ was to qualify potential suppliers
    for the forthcoming public tendering process (the RFP). Both Stericycle and
    Daniels responded to the RFQ and qualified to bid when HealthPRO issued the RFP
    regarding the new contract. Each of Stericycle and Daniels responded to the RFP.

[8]

Daniels did not have established waste
    management facilities in British Columbia when it participated in the RFQ and
    the RFP. In its RFQ, Daniels included the following statements:

Daniels Health will be fully committed and
    able to meet and exceed the service capabilities required for the HealthPRO membership
    by the 2020 start date of this contract.

Daniels Health is in the process of
    commissioning a fully functional Biomedical Waste facility in British Columbia.
    This facility, complete with permits, will be operational by the summer of 2020.

In its RFP, Daniels added the
    following statement:

Daniels will have
    national coverage (adding British Columbia) before June 2020.

[9]

The RFP included a statement that HealthPRO
    would employ a multi-supplier award strategy to allow its members to
    individually determine their best contract commitment scenario and to benefit
    from the collective buying power of a national initiative. To this end, unlike
    the 2013 Contract which contemplated a single supplier, the RFP contemplated the
    award of 2020 Contracts to multiple eligible suppliers from which a HealthPRO
    member would select a primary supplier and could also designate a secondary
    supplier if more than one 2020 Contract was awarded by HealthPRO. A primary
    supplier would receive a committed volume of at least 80% of the business of
    the selecting HealthPRO member; a secondary supplier would be obligated to
    provide up to 20% of the business but had no guarantee of any volume of
    business.

[10]

Each of Stericycle and Daniels was awarded a
    2020 Contract by notice dated January 31, 2020. The 2020 Contracts contemplated
    a contractual start date of June 1, 2020 with a term ending November 30, 2024.
The contract resulting from HealthPROs acceptance of Stericycles
    RFP is referred to as the Stericycle 2020 Contract
; the contract
    resulting from HealthPROs acceptance of Daniels RFP is referred to as the Daniels
    2020 Contract.

[11]

On February 26, 2020, Daniels advised PHSA that Daniels
    would be in a position to start servicing PHSA and its member sites by the end
    of this calendar year. On March 19, 2020, Daniels contacted HealthPRO to
    confirm that PHSA would be able to request a six-month extension of the 2013
    Contract pursuant to the Six Month Provision. PHSA also requested information
    from HealthPRO regarding the Six Month Provision. On April 7, 2020, HealthPRO
    advised PHSA that the Six Month Provision allowed for the extension of Stericycles
    contract pricing for up to 6 months beyond the 2013 Contract expiry date to implement
    a new contract to a different supplier.

[12]

On June 2, 2020, HealthPRO advised Daniels that
    PHSA had selected it as PHSAs primary supplier and advised Stericycle that it
    had not been selected as PHSAs primary supplier. Stericycle learned the
    identity of the primary supplier on the same day. In a further document,
    Stericycle was advised that PHSA had not selected Stericycle as its primary
    supplier, that PHSA was now authorized to receive Stericycles secondary
    pricing as per the commitment effective date, that PHSA was not required to
    select a secondary supplier, and that PHSA may or may not utilize secondary
    pricing. Accordingly, HealthPRO did not expressly advise Stericycle that it had
    been selected as the secondary supplier. However, Stericycle would effectively become
    the secondary supplier, to the extent that PHSA chose to avail itself of a
    secondary supplier, as it was the only other supplier awarded a 2020 Contract
    covering British Columbia.

[13]

In view of the fact that Daniels would not have a
    commissioned waste facility operating in British Columbia on June 1, 2020, PHSA
    insisted that Stericycle provide all of the waste management services required
    by its members pursuant to the terms of the Six Month Provision under the 2013
    Contract after that date.

[14]

In order to assist Daniels to obtain the
    necessary licence to operate a waste management facility in British Columbia,
    PHSA wrote a letter dated June 18, 2020 to the Ministry of Environment and
    Climate Change Strategy of British Columbia supporting Daniels request for an
    expedited authorization of its licence.

[15]

Daniels commenced providing services on December
    1, 2020 immediately following expiration of the period covered by the Six-Month
    Provision.

The Decision of the Application Judge

[16]

Before the application judge, Stericycle
    submitted that HealthPRO and PHSA acted in bad faith and in breach of contract
    in awarding the primary supplier designation to Daniels. In dismissing the
    application, the application judge addressed three principal issues raised by Stericycle.

[17]

First, the application judge dismissed Stericycles
    argument that HealthPRO and PHSA effectively rewrote the Daniels 2020 Contract by
    permitting Daniels to commence the provision of services later than June 1,
    2020.

[18]

Second, the application judge rejected Stericycles
    submission that certain communications between Daniels and PHSA initiated by
    PHSA after January 31, 2020 amounted to bid repair. She held that the
    communications were operational in nature and did not go to the substantial
    terms of the Daniels 2020 Contract, that the prohibition against communications
    in the RFP related to suppliers only, and that, in any event, the most
    significant communication (being PHSAs letter of June 18, 2020) occurred after
    the primary supplier designation had been made.

[19]

Lastly, the application judge rejected
    Stericycles argument that, by having Stericycle provide 100% of services after
    June 1, 2020, PHSA had irrevocably elected Stericycle as its primary supplier
    through its conduct. The application judge also dismissed Stericycles argument
    that the 2013 Contract terminated on the award of the 2020 Contract to Stericycle,
or on the start date of the 2020 Contracts
, as Stericycle
    could not have been subject to two contracts at one time.

[20]

The decision of the application judge was based
    on four significant findings. Stericycles grounds of appeal are based on its
    view that the application judge erred in respect of each of these findings.

[21]

First, the application judge held that the 2013
    Contract was not spent on the award of the 2020 Contract, or on the start date
    of the 2020 Contracts, and that PHSA was entitled to insist that Stericycle continue
    to provide services for six months after June 1, 2020 under the 2013 Contract
    without such conduct amounting to selection of Stericycle as its primary
    supplier.

[22]

Second, the application judge held that the Daniels
    2020 Contract did not require Daniels to commence the provision of services as
    of June 1, 2020. The application judge found to the contrary that neither the
    RFP nor the RFQ contained any provision imposing a mandatory implementation
    date for services or any requirement that a supplier have established
    operations in a province in which it proposed to offer services as of the 2020
    Contract start date. The application judge concluded that, while the 2020
    Contract start date was June 1, 2020, the implementation date of the 2020
    Contract for any given HealthPRO member was whatever date the member chose. In
    the case of PHSA, therefore, it was December 1, 2020.

[23]

Third, the application judge found that the
    Daniels bid included a promise to have a facility available for waste disposal
    but this commitment did not extend to compliance on the start date of the 2020
    Contract. This finding addressed Stericycles suggestion that Daniels misrepresented
    its ability to commence operations as of the start date of the 2020 Contract
    and chose not to reveal the correct information until the 2020 Contract was
    awarded. This issue is not relevant to the conclusions in these reasons. However,
    in reaching this conclusion, the application judge referred to the decisions in
Tantramar Sanitation & Trucking Ltd. v. Sackville (Town)
, 2006
    NBQB 13, 298 N.B.R. (2d) 365 and
Aquatech v. Alberta (Minister of
    Environment and Parks)
, 2019 ABQB 62, 86 B.L.R. (5th) 207 regarding
    respectively the purposes of public sector procurement and the importance of
    allowing competitors to participate meaningfully in a public tender process to
    achieve those purposes. The principles articulated in these decisions informed
    the findings of the application judge more generally.

[24]

Lastly, the application judge concluded that
    neither PHSA nor HealthPRO owed any duty of good faith to Stericycle in
    conducting the selection process or otherwise. She held that, in accordance
    with the analysis of contracts arising in respect of public tendering bids
    articulated in
Double N Earthmovers Ltd. v. Edmonton (City)
, 2007 SCC
    3, [2007] 1 S.C.R. 116, any duty owed by HealthPRO to Stericycle during the
    tendering process was extinguished on the award of the 2020 Contracts. She also
    held that PHSAs delegated agency from HealthPRO to make its supplier selection
    did not establish privity between PHSA and Stericycle with respect to the
    Stericycle 2020 Contract and therefore did not give rise to a duty of fairness
    owed by PHSA to Stericycle in respect of the selection of a primary supplier.

Analysis of the Grounds of Appeal

[25]

Before this court, Stericycle broadly raised
    five grounds of appeal which I will address in turn.

(1)

The Interpretation of the Six Month Provision

[26]

For the purposes of this appeal, Stericycles most
    significant submission is that the application judge erred in holding that Stericycle
    was obligated to provide services under the Six Month Provision without engaging
    in a formal exercise of contractual interpretation in reaching that conclusion.

[27]

Stericycle argues that it was not obligated to
    maintain 2013 pricing in the present circumstances on the plain language of the
    Six Month Provision. It suggests that it was a supplier under both the 2013
    Contract and the 2020 Contract with the result that there was no new contract
    to a different supplier but rather implementation of a new contract to
    multiple suppliers, one of which was Stericycle. The appellant says that the
    application judge failed to consider the best evidence of the intention of the
    parties, which it suggests was the equivalent provision in the 2020 Contract.
    That provision reads as follows:

HealthPRO requires
    Awarded supplier(s) to hold all contract pricing and terms (including rebate)
    firm for up to six (6) months beyond contract expiry (including following any
    Option Term) in the event that the new contract is awarded to a different
    supplier or awarded to multiple suppliers.

Stericycle also argues that, in
    reaching her interpretation, the application judge erred by allowing her view
    of commercial efficacy to overwhelm the plain language of the agreement.

[28]

I pause to consider the applicable standard of
    review of the findings of the application judge that involved a contractual
    interpretation of provisions of the 2013 Contract and the 2020 Contracts. Stericycle
    has suggested that the standard of review should be correctness. It bases this
    assertion on the statement of Wagner J. in
Ledcor Construction Ltd. v.
    Northridge Indemnity Insurance Co
., 2016 SCC 37, [2016] 2 S.C.R. 23 that
    the interpretation of a standard form contract should in certain circumstances
    be classified as a question of law and subject to a correctness standard: at
    paras. 24, 33. However, the factors enumerated by Wagner J. in
Ledcor
that would inform such a conclusion  the interpretation is of precedential
    value and there is no meaningful factual matrix  are not present in this case.
    Rather, the circumstances fit squarely within the circumstances contemplated in
Sattva Capital Corp. v. Creston Moly Corp
., 2014 SCC 53, [2014] 2
    S.C.R. 633 as giving rise to a question of mixed fact and law  that [t]he
    legal obligations arising from a contract are  limited to the interest of the
    particular parties: at para. 52. Further, unlike
Ledcor
, there is a
    factual matrix that is specific to the parties and that is meaningful for the
    interpretation of the 2013 Contract and the 2020 Contracts. Lastly, the concept
    of a standard form contract is only partially applicable in respect of the
    Daniels 2020 Contract given the fact that the clauses in that Contract to be
    interpreted are not limited to terms imposed on the bidders but must
    necessarily include Daniels responses in its RFP. Accordingly, I conclude that
    the standard of review of the contractual interpretation of the relevant
    provisions of the 2013 Contract and the 2020 Contracts is the palpable and
    overriding error standard.

[29]

The well-established principles of contractual
    interpretation are set out in
Ventas, Inc. v. Sunrise Senior Living Real
    Estate Investment Trust
, 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24 and
    need not be repeated here. The application judge properly applied those
    principles in respect of the two matters raised by Stericycle that involve
    contractual interpretation  the Six Month Provision and the start date under the
    2020 Contracts  and her conclusions regarding these matters do not reflect any
    palpable and overriding error in either case.

[30]

Dealing with the Six Month Provision, the
    finding of the application judge that Stericycle was obligated to supply
    services under this Provision is entirely reasonable for the following reasons.
    On its plain language, this provision applies in the case of implementation of
    a new contract to a different supplier. In this case, PHSA implemented a new
    contract, the Daniels 2020 Contract, and selected a new supplier, Daniels. As
    the primary supplier, Daniels was obligated to supply at least 80% of the
    volume of business and could, at PHSAs option, be required to supply 100% of
    that volume. Conversely, Stericycle was not formally designated the secondary
    supplier and, as mentioned, in the Secondary Pricing Authorization, HealthPRO
    advised that its members are not required to select a secondary supplier and
    may or may not utilize secondary pricing. Stericycle therefore had no
    guarantee that it would be requested to supply any volume at all and is more
    properly characterized for this purpose as a potential supplier.

[31]

Stericycle suggests that paragraph 2(s) of the
    terms and conditions included in the 2013 Contract, rather than the Six Month
    Provision, governed transition arrangements. That provision reserved a right in
    favour of HealthPRO to enter into a new contract with a different supplier with
    such contract to become effective at any time during the final month of the
    2013 Contract. However, there is nothing in this provision that suggests that
    it was intended to be the exclusive provision regulating transition
    arrangements at the end of the 2013 Contract. Moreover, this provision appears
    directed toward different situations altogether  Stericycle ceasing to supply
    in advance of the termination of the 2013 Contract or more beneficial pricing being
    available from the new supplier. I also note that the terms and conditions
    included in the 2020 Contract contained a similar provision together with the
    revised version of the Six Month Provision set out above, suggesting that the
    two provisions are intended to provide optional transition rights to HealthPRO
    members.

[32]

I also see no error in the absence of any
    consideration by the application judge of the equivalent provision in the 2020
    Contract. The 2013 Contract contemplated a single supplier. In that context,
    the language of the Six Month Provision gives a clear indication of the
    intention of the parties. The language in the 2020 Contract, while perhaps
    giving greater flexibility in the event of multi-supplier contracts which could
    be structured in various ways in the future, does not add anything of
    interpretative value in respect of the 2013 Contract.

[33]

Stericycles further argument that the Six Month
    Provision is on its face solely a pricing provision interprets this provision
    too narrowly in a manner that cannot have been intended by the parties. Stericycles
    interpretation renders the provision redundant for the reason that a pricing
    provision that is not accompanied by an obligation to supply has no practical
    utility.

[34]

The interpretation of the application judge is
    also supported by the factual matrix. Her finding that it would be neither
    efficient nor realistic to require a new supplier to begin supplying services
    on the start date of the 2020 Contracts is amply supported by the factual
    background in which the tendering process was conducted. The evidence before
    the application judge was that the introduction of a new supplier for the over
    1,000 public medical facilities under PHSA would require a considerable
    transition period. In addition, as the application judge observed, a mandate to
    commence services on the start date would grant an incumbent with operating
    facilities in a province a significant advantage over all other bidders in the
    next bidding cycle and could be expected to negatively affect the competitive
    bidding necessary to achieve beneficial pricing in that cycle. All of these
    circumstances were part of the factual matrix in which the 2013 Contract was
    awarded. They are compelling evidence that the parties understood and intended that
    the Six Month Provision would survive the maturity date of the 2013 Contract. The
    application judge did not allow her view of commercial efficacy to overwhelm
    her interpretation of the Six Month Provision.

(2)

The Allegation of Concurrent Contracts

[35]

Stericycles second and third grounds of appeal
    are effectively determined by the first conclusion above regarding the
    operation of the Six Month Provision. Stericycles position on each issue is
    predicated on acceptance of its interpretation of the Six Month Provision.

[36]

Stericycle argues that the application judge
    failed to consider the legal significance of two concurrent contracts for the
    same services. Stericycle submits that, in the circumstances of two agreements
    dealing with the same subject matter, there is an inference that the later was
    intended to displace the earlier in the absence of language expressly
    addressing the issue in the later contract.

[37]

I do not agree that there is any such common
    sense inference of general application. It is trite law that each case must be
    examined on its own facts. Moreover, it is not uncommon for two supply
    contracts having different terms as to volume and pricing to co-exist for a
    period of time. In the present circumstances, the concept of the Six Month
    Provision necessarily entails the possibility of concurrent contracts for the
    duration of the Six Month Provision. Stericycle had concurrent obligations to
    provide services under the Six Month Provision, on 2013 pricing terms, and under
    the Stericycle 2020 Contract, on 2020 secondary supplier pricing terms, as
    requested by PHSA. The PHSA therefore had a correlative right or option to require
    services under both the Six Month Provision and the 2020 Contract for a limited
    period of time. It exercised its right or option to receive services under the
    Six Month Provision as the more favourable arrangement.

(3)

The Doctrine of Election

[38]

Similarly, the existence of such an option in favour
    of PHSA is a complete answer to Stericycles argument that the application
    judge erred in failing to consider that PHSA irrevocably elected Stericycle as PHSAs
    primary supplier through its conduct.

[39]

The doctrine of election was described in the
    following terms in
Charter Building Company v. 1540957 Ontario Inc. (Mademoiselle
    Womens Fitness & Day Spa)
, 2011 ONCA 487, 107 O.R. (3d) 133, at para.
    19:

Election at common
    law takes place where a party is faced with a choice between two inconsistent
    courses of action that affect another party's rights or obligations, and
    knowing that the two courses of action are inconsistent and that he or she has
    the right to choose between them, makes an unequivocal choice and communicates
    that choice to the other party. The doctrine provides that the party making the
    election is afterwards precluded from resorting to the course of action that he
    has rejected. The election is effective at the point of communication on the
    basis that the parties to an ongoing relationship are entitled to know where
    they stand. [Citation omitted.]

[40]

To be clear, Stericycle does not argue that PHSA
    manifested an intention to change its designation of the primary supplier under
    the 2020 Contracts
merely
by requiring Stericycle
    to continue to provide services after June 1, 2020 at 2013 prices. Rather, it
    suggests that this was the result of PHSAs actions in the face of two
    inconsistent courses of action that affected Stericycles rights or
    obligations. It says that, given Daniels inability to commence the provision
    of services on June 1, 2020, PHSA had only two courses of action under the
    Stericycle 2020 Contract: it could designate Stericycle as the primary supplier
    or as the secondary supplier.

[41]

However, given the operation of the Six Month
    Provision, PHSA had a third option under the 2013 Contract as discussed  an
    entitlement to designate another supplier as the primary supplier and require
    the provision of services by Stericycle during the six-month transition period
    following June 1, 2020. Accordingly, any issue of inconsistent actions under
    the Stericycle 2020 Contract which might have justified application of the
    doctrine of election did not arise.

(4)

Allegations of a Breach of the Duty of Good
    Faith

[42]

The remaining grounds of appeal involve Stericycles
    position that the application judge erred in failing to properly apply the
    principles pertaining to the duty of good faith to the circumstances of this
    case. As mentioned, the application judge held that neither HealthPRO nor PHSA owed
    a duty of good faith to Stericycle. While Stericycle suggests that HealthPRO or
    PHSA owed a duty of good faith to Stericycle in the performance of the Daniels
    2020 Contract, Stericycles principal arguments of a breach of the duty of good
    faith are grounded in the existence of the Stericycle 2020 Contract. Stericycle
    submits that the award of the Stericycle 2020 Contract distinguishes this case
    from the circumstances in
Double N Earthmovers
. Stericycle argues that
    the application judge erred in failing to recognize that performance of the
    Stericycle 2020 Contract and, in particular, PHSAs exercise of its discretion
    in selecting the primary supplier, was subject to the organizing principle of
    good faith.

[43]

The organizing principle of good faith in
    contractual dealings was addressed in
Bhasin v. Hrynew
, 2014 SCC 71,
    [2014] 3 S.C.R. 494 and expanded upon in
C.M. Callow Inc. v. Zollinger
,
    2020 SCC 45, 452 D.L.R. (4th) 44 and
Wastech Services Ltd. v. Greater
    Vancouver Sewage and Drainage District
, 2021 SCC 7, 454 D.L.R. (4th) 1. In
    these decisions, the Supreme Court recognized two existing doctrines as
    manifestations of the principle of good faith

the
    duty to exercise a contractual discretion in good faith and the duty of honest
    performance of a contract.

[44]

The duty to exercise a contractual discretion in
    good faith will be breached where the exercise of discretion is unreasonable,
    in the sense that it is unconnected to the purposes for which the discretion
    was granted:
Wastech
,
at para. 88. The duty of honesty in contractual performance was explained by
    Cromwell J. in
Bhasin
as meaning simply that parties must not lie or
    otherwise knowingly mislead each other about matters directly linked to the performance
    of the contract: at para. 73.

[45]

I will address in turn the arguments of Stericycle
    that each such manifestation of the duty of good faith was breached. Stericycle
    also suggests that this organizing principle encompasses the implied duty to
    act fairly towards all bidders in a public tendering process referred to in
Bhasin
,
    at para. 56, incorporating the statement in
Tercon Contractors Ltd. v.
    British Columbia (Transportation and Highways)
, 2010 SCC 4, [2010] 1 S.C.R.
    69, at paras. 58-59. However, Stericycles allegation of a breach of a duty of
    fairness in the public tendering process is based on the same factual
    circumstances as the allegation of a failure of HealthPRO and PHSA to exercise
    their contractual discretion to select the primary supplier reasonably. For
    that reason and the reason that the duty of good faith does not require a party
    to forego advantages flowing from a contract, in my view the duty of fairness in
    the present circumstances is equivalent to, and entails the same standard as,
    the duty of PHSA to exercise its contractual discretion reasonably, rather than
    a separate and more onerous duty:
Bhasin
, at paras. 65, 73.

(a)

Allegations of a Breach in the Exercise of
    Discretion in the Supplier Selection Process

[46]

Stericycle identified a number of alleged
    breaches of the obligation to exercise the contractual discretion to select a
    primary supplier reasonably. It says the application judge failed to consider these
    alleged breaches because of her determination that PHSA was not subject to such
    an obligation in respect of Stericycle. These alleged breaches can be
    summarized in three different formulations of the content of the duty of good
    faith that Stericycle says HealthPRO and/or PHSA owed in the present
    circumstances:

1.

a duty to hold suppliers to the commitments made
    in their RFQ and RFP responses, the breach of which Stericycle describes as
    allowing Daniels to re-write the start date and as permitting impermissible
    bid repair by Daniels;

2.

a duty not to select a supplier known to be
    unable to commence the provision of services on the start date of the 2020
    Contracts; and

3.

a duty not to conscript Stericycle into helping Daniels buy time to
    allow Daniels to cure fundamental misrepresentations in the RFQ and RFP
    responses by which it won the Daniels 2020 Contract.

[47]

The essence of Stericycles ground of appeal on
    this issue, which underlies all three of these formulations, is that the
    application judge erred in failing to find that, in excusing Daniels from its
    obligation to commence providing services under the Daniels 2020 Contract on
    June 1, 2020, HealthPRO and PHSA breached a duty of good faith owed to Stericycle.

[48]

It is not necessary for present purposes to
    determine whether HealthPRO or PHSA owed a duty of good faith to Stericycle to
    exercise a contractual discretion reasonably in the selection of the primary
    supplier under the Stericycle 2020 Contract. Even if it is assumed that HealthPRO
    and/or PHSA owed such a duty, neither HealthPRO nor PHSA breached such duty of
    good faith to Stericycle. Two considerations inform this conclusion.

[49]

First, Stericycle cannot assert a breach of a
    duty of good faith in respect of the selection of Daniels as the principal
    supplier for two alternative reasons.

[50]

Stericycle was not a party to the Daniels 2020
    Contract. Accordingly, Stericycle cannot assert a breach of a duty of good
    faith in the performance of that contract insofar as HealthPRO and PHSA may be
    found to have waived any breach of Daniels obligations in the Daniels 2020
    Contract regarding the date of commencement of operations:
Double N
    Earthmovers
,
at paras.
    71-72.

[51]

In addition, and alternatively, even if Stericycle
    has standing to assert a breach of the Daniels 2020 Contract, the application
    judges determination that the start date in the 2020 Contracts did not relate
    to the provision of services, and that Daniels was only required under the
    Daniels 2020 Contract to begin providing services to a HealthPRO member upon
    the date selected by that member, excludes a finding of any such breach. Stericycle
    submits that the application judge erred in reaching this interpretation. In my
    view, however, this contractual interpretation of the application judge is also
    free of reversible error for the following reasons.

[52]

Stericycle relies principally on the HealthPRO
    letters awarding the 2020 Contracts to Daniels and Stericycle, which stated
    that the term of the 2020 Contracts would run from June 1, 2020, and on HealthPROs
    supplier selection notification to Daniels, which stated that the contract
    start date was June 1, 2020. The application judge acknowledged that the 2020
    Contracts ran for a period that commenced on that date. However, she found that
    it was understood in the industry, and therefore by the parties, that there was
    a difference between the date on which the term of the 2020 Contracts began,
    being the start date, and the implementation date for the provision of services
    to individual HealthPRO members.

[53]

In this regard, she noted that there was no
    provision in either the RFQ or the RFP that imposed a mandatory date for the
    implementation of services. She also observed that HealthPRO members could, and
    did, choose later dates as the implementation date for the provision of
    services to them. Elsewhere in the Reasons, the application judge also referred
    to the complexity and resulting time to transition the provision of services
    from Stericycle to a new supplier. She also observed that it would be
    commercially unreasonable to require a prospective new supplier to make the
    significant financial investment required to provide services in a province without
    a guarantee of being selected as a service provider. This reality reinforces
    the need for a transition period after the start date of a contract. In this
    regard, there is no evidence that the one month contemplated by paragraph 2(s)
    in the 2013 Contract would have been sufficient to transition the approximately
    1,000 medical facilities of PHSA to a new supplier. There was therefore ample
    evidence in the factual background to the negotiation and execution of the 2020
    Contracts to support the interpretation of the application judge. I would add
    that the existence of the Six Month Provision, and its counterpart in the 2020
    Contracts, adds further support for the interpretation of the application
    judge.

[54]

The second consideration that informs the
    conclusion of an absence of a breach of this element of the duty of good faith
    is the legal position of PHSA given the existence of the Six Month Provision. As
    mentioned, Stericycle mischaracterizes this position in arguing that PHSA had
    only two choices in making its supplier selection  a primary supplier and a
    secondary supplier. However, the Six Month Provision provided PHSA with a third
    option which PHSA adopted  to select a primary supplier and to rely upon the
    benefit of the Six Month Provision until the primary supplier was able to
    commence the provision of services.

[55]

In summary, by virtue of the first
    consideration, PHSA did not breach any obligation to Stericycle in refraining
    from requiring Daniels to begin providing service on June 1, 2020. Put
    positively, PHSA was entitled to select December 1, 2020 as the date of
    commencement of such services. By virtue of the second consideration, PHSA did
    not breach any obligation to Stericycle in requiring it to continue to supply
    under the Six Month Provision until December 1, 2020.

[56]

Given this framework, there is no basis for a
    finding that HealthPRO or PHSA acted unreasonably in the selection of Daniels
    as the primary supplier under the Daniels 2020 Contract. As the application
    judge noted, the purpose of HealthPROs RFQ and RFP process, and therefore the
    purpose of the 2020 Contracts, was to permit HealthPROs members to gain the
    greatest benefit from collective buying power, that is to secure competitive
    contracts and offer choice to the members. The third option allowed PHSA to
    achieve its selection of its preferred primary supplier in reliance on a
    contractual obligation to which Stericycle had agreed in the 2013 Contract. PHSA
    therefore exercised its contractual discretion to select the primary supplier
    in a manner that was entirely consistent with the purposes of the 2020
    Contracts.

[57]

Further, to the extent that Stericycles expectations
    are relevant, PHSAs decision did not fall outside of the range of behaviours
    contemplated, or that should reasonably have been contemplated, by Stericycle.

[58]

Given that Stericycle agreed to provide services
    for a period of six months following the termination of the 2013 Contract
    pursuant to the Six Month Provision, Stericycle could not reasonably expect
    that PHSA would require Daniels to commence the provision of services
    immediately upon termination of the 2013 Contract if a deferral of the implementation
    date best met the needs of PHSAs facilities. For the same reason, any
    expectation of Stericycle that it would be paid in accordance with pricing
    under the 2020 Contract rather than pursuant to the 2013 Contract was
    unreasonable if the 2013 pricing was more favourable to PHSA members and time
    was required to transition to the new supplier. Similarly, the selection of
    Daniels as the primary supplier did not involve unfairly conscripting Stericycle
    to allow Daniels the time to cure any misrepresentation in its RFQ and RFP,
    whether or not it might also have relieved Daniels of the consequences of any
    misrepresentation.

(b)

Allegations of a Breach of the Duty of Honest
    Performance

[59]

Stericycles final ground of appeal is that the
    application judge erred in failing to find that HealthPRO and PHSA breached the
    duty of honest performance of the Stericycle 2020 Contract.

[60]

Stericycle relies on a number of separate
    allegations in support of this position. In particular, Stericycle alleges that
    HealthPRO acted dishonestly in providing information regarding the Six Month
    Provision to Daniels, in relying on the Six Month Provision to allow Daniels to
    delay its start date, and in relying on the fact that Daniels would be able to
    obtain expedited authorization with PHSAs assistance in making its selection
    of Daniels as the primary supplier. Stericycle also alleges that PHSA acted
    dishonestly in not informing Stericycle much earlier than June 2, 2020 of its
    intended reliance on the Six Month Provision in its selection of Daniels as the
    primary supplier.

[61]

The application judge was alert to these matters
    and concluded that they did not amount to bid repair although she did not
    address them in the context of an alleged breach of a duty of good faith. In my
    view none of the impugned actions satisfy the test set out in
C.M. Callow
for demonstration of dishonest performance of the Stericycle 2020 Contract.

[62]

None of these allegations involve lying or
    actively misleading Stericycle about a matter directly linked to performance of
    the Stericycle 2020 Contract or to the exercise of rights set forth therein. In
    particular, nothing in the RFP prevented PHSA from obtaining the information
    that it required regarding proposed implementation of the 2020 Contracts by
    Daniels and Stericycle in order to make an informed selection of its primary
    supplier. Further, HealthPRO was entitled to advise PHSA, as its member, of its
    rights under the 2013 Contract and, as discussed, PHSA was entitled to rely
    upon such rights. Moreover, the evidence before the application judge does not establish
    that PHSAs decision to select Daniels was the direct result of HealthPROs communication
    with Daniels regarding PHSAs rights under the Six Month Provision. The
    evidence also fails to establish bad faith in the communication of PHSAs
    position to Stericycle. PHSAs decision (or more properly the decisions of each
    of PHSAs members) was finalized only shortly before June 2, 2020, having been
    delayed by the pandemic, and Stericycle was advised of PHSAs intention to rely
    on the Six Month Provision shortly thereafter.

[63]

This ground of appeal is therefore also denied.

Conclusion

[64]

For the reasons set out above, the appeal is
    dismissed.

[65]

If the parties are unable to agree on costs
    within 15 days of the release of these reasons, they may submit written costs
    submissions, which are not to exceed 5 double-spaced pages in length, exclusive
    of costs outlines. The respondents shall serve and file their submissions
    within 15 days after the release of these reasons, and Stericycle shall have 15
    days to respond.

Released: December 10, 2021 GRS

Wilton-Siegel
    J.

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

I
    agree B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Karas, 2021 ONCA 889

DATE: 20211213

DOCKET: C69654

MacPherson, Coroza and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Karas

Appellant

Michael Karas, acting in person

Chris Rudnicki, appearing as duty counsel

Philippe Cowle, for the respondent

Heard: December 8, 2021

On appeal from the sentence imposed on December
    29, 2020 by Justice Todd Ducharme of the Superior Court of Justice,
    sitting without a jury, with reasons reported at 2020 ONSC 8183.

REASONS FOR DECISION

[1]

The appellant was charged on a 24-count
    indictment for offences relating to four bank robberies committed using an
    imitation firearm. The appellant pleaded guilty to two counts of robbery, two
    counts of using an imitation firearm while committing the offence of robbery,
    and one count of forcible confinement. On consent, the facts were read in for
    all four robberies and the appellant accepted that the facts read in were true.

[2]

The offences were extremely serious and
    carefully planned. The appellant used an imitation firearm and a mask. The
    offences had a significant impact on the victims. The sentencing judge noted
    that the appellant was a career criminal because he had amassed a lengthy
    criminal record that included convictions for nine prior bank robberies and a
    conviction for murder in Thailand.

[3]

After reviewing the aggravating and mitigating
    factors, the sentencing judge imposed a global sentence of 21 years less
    enhanced credit for pre-trial custody. The net global sentence imposed by the
    sentencing judge was 15 years, 6 months and 10 days.

[4]

The appellant argues that the sentence imposed
    by the sentencing judge is disproportionate because he only pleaded guilty to
    two bank robberies; the sentence is a significant increase from his last
    sentence on his criminal record; and the trial judge erred because he did not
    consider relevant mitigating factors. He submits that his sentence should be
    reduced.

[5]

Duty counsel, on behalf of the appellant, argues
    that the trial judge erred in principle by finding that the appellants guilty
    plea was not a significant demonstration of remorse given the strength of the
    Crowns case. Duty counsel submits that by pleading guilty the appellant spared
    the victims from testifying and saved the system a lengthy trial.

[6]

We see no error in the sentencing judges
    reasons for sentence. The sentencing judge considered each of the appellants
    arguments at the sentencing hearing.

[7]

We are also not persuaded by duty counsels
    submission. It was the sentencing judges call as to what weight he would give
    the guilty plea. In our view, the sentencing judge recognized that the
    appellants guilty plea avoided the need for a trial which would have been
    difficult for some of the victims, but he did not view the plea as a
    significant expression of remorse. We see no error in his conclusion. We note
    that the appellants pattern of committing armed bank robberies over several
    years undercuts any assertion of remorse. Protection of the public was the
    overriding sentencing goal in this case, and the global sentence imposed reflects
    that principle.

[8]

For these reasons, the appeal is dismissed.

J.C. MacPherson J.A.

S. Coroza J.A.

Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McTavish v. Reed, 2021 ONCA 885

DATE: 20211214

DOCKET: C68992

Fairburn A.C.J.O, Roberts J.A. and
    Van Melle J. (
ad hoc
)

BETWEEN

Crystal McTavish, Tracy Ardis
    and Janice Ardis,
as Trustees for the Estate of Walter Ardis

Applicants (Respondents)

and

Susan Reed, as Trustee for the Estate of Margaret
    Ardis

Respondent (Appellant)

David M. Sundin, for the appellant

Douglas A. Sulman, for the respondent

Heard: November 9, 2021 by
    video conference

On appeal
    from the order of Justice Maria V. Carroccia of the Superior Court of Justice
    dated December 15, 2020, with reasons at 2020 ONSC 7795.

REASONS FOR DECISION

Overview

[1]

The appellant appeals the order that insurance
    proceeds in the amount of $314,237.50 be paid out of court to the respondents
    as Estate Trustees for Walter Ardis. She submits that the application judge
    erred in two ways: (1) in failing to adjourn the respondents application to be
    heard at the same time as the appellants application contesting the validity
    of a subsequent will of Walter Ardis, and (2) in her determination of insurable
    interest under an insurance contract.

Factual Background

[2]

Walter and Margaret Ardis were married for 27
    years. They owned a house together as joint tenants. They were close to his
    son, Trevor Ardis, and her daughter, Susan Reed, who were beneficiaries under Mrs.
    Ardiss will and purportedly under Mr. Ardiss mirror will made in 2012. Toward
    the end of his life, Mr. Ardis suffered from severe dementia, paranoia, and
    hallucinations, which resulted in him killing his wife and setting fire to their
    house on March 24, 2016. On July 31, 2017, Mr. Ardis was found not criminally
    responsible on account of mental disorder (NCRMD) in the death of his wife.
    Pursuant to s. 672.54(c) of the
Criminal Code
, R.S.C., 1985, c. C-46,
    the Ontario Review Board (ORB) ordered Mr. Ardis to be detained in custody in
    a psychiatric hospital. He remained there until his death on March 19, 2018.

[3]

While detained in the psychiatric hospital, Mr.
    Ardis purportedly made a new will in which it is said that he removed the
    appellant in her personal capacity as a beneficiary and named as Estate
    Trustees three of Mr. Ardiss children from whom he had been estranged for many
    years until after his NCRMD designation. We say purportedly because that will
    does not form part of the record in this case. While the appellant has made
    repeated requests to see the will purportedly made while Mr. Ardis was detained
    in the psychiatric hospital, the respondents have not provided a copy to her.

[4]

On March 1, 2018, one of the respondents,
    Crystal McTavish, as power of attorney for Mr. Ardis, submitted to the insurer a
    proof of loss claim arising out of the fire damage to the house and its contents.
    While there exists a public policy rule that a person who kills another should
    not profit from that crime, there are some exceptions to the rule, including
    where the killing arises out of a mental disorder:
Dhingra v. Dhingra
,
    2012 ONCA 261, 109 O.R. (3d) 641,

at para. 22. Therefore, the appellant
    does not dispute that a person found NCRMD is not prevented from taking under
    an insurance policy or by right of survivorship. The question on appeal is
    whether the Estate of Mrs. Ardis was also entitled to take under the policy.

The Litigation

[5]

On March 9, 2018, an action was commenced in Mr.
    Ardiss name, without a litigation guardian, against the insurer for payment of
    the insurance proceeds for the fire damage caused to the house and its
    contents. Following Mr. Ardiss death, an order to continue the action in the
    names of the respondents was obtained. On June 7, 2019, in settlement of the
    action, the insurer agreed to pay the amount of $314,237.50 into court. The
    settlement funds were broken down as follows: $186,400 for the building;
    $114,900 for contents; and $12,937.50 for demolition costs. The appellant was
    named as a respondent on Verbeem J.s order, dated August 13, 2019, that the
    funds be paid into court. On February 3, 2020, the respondents commenced an
    application to have the funds paid to them out of court.

[6]

On March 16, 2020, just as the province of
    Ontario was locking down because of the pandemic, the appellant commenced an
    application in Windsor, Ontario as Estate Trustee of Margaret Ardis for directions
    on whether Mr. Ardis was without the requisite capacity to make his subsequent
    will (the will application). If the appellant succeeds on the will application,
    the 2012 will shall remain the last will and testament of Mr. Ardis, which
    would leave the appellant in her personal capacity as a beneficiary under both
    Mrs. and Mr. Ardiss wills.

[7]

Due to complications caused by the physical
    closing of the court offices during the pandemic, the appellant asserts she was
    not able to serve the application or transfer it to Chatham, Ontario in time to
    be heard with the respondents application, which was heard on August 18, 2020.
    Therefore, the appellant requested an adjournment of the respondents
    application requesting the release of the insurance funds to the Estate of
    Walter Ardis. Included in the appellants responding application record was a
    copy of the will application that had not yet been successfully transferred to
    Chatham. The appellant argued that both applications should be heard together.

[8]

The application judge dismissed the
    appellants request that the respondents application be adjourned to be heard
    with the will application on the basis that the will application had not yet been
    served. The application judge also noted that there was no formal application
    filed to join the applications, nor had the appellant taken any other steps to
    bring such an application before the court. Therefore, the application judge
    dismissed the appellants adjournment request and went on to decide the
    application brought by the respondents for the release of the insurance funds
    held in court to them.

[9]

The application judge rejected the appellants
    submission that the Estate of Mrs. Ardis was entitled to a 50 percent share of
    the insurance proceeds held in court because any interest that Mrs. Ardis may
    have had in the parties home passed on her death to the joint tenant, Mr.
    Ardis. She allowed the respondents application and ordered that the funds held
    in court be paid to the Estate of Mr. Ardis.

Analysis

[10]

We agree that the application judge erred in refusing the
    requested adjournment and in ordering that the insurance proceeds be paid out
    of court to the respondents.

[11]

First, by refusing the adjournment and determining the
    respondents application for the release of the insurance funds to them as the
    Estate Trustees, the application judge decided the respondents application
    under a will that remained in dispute. In our view, the application judge erred
    in doing so.

[12]

The appellants request for an adjournment of the
    respondents application so that it could be heard together with the
    appellants will application was not only reasonable, but to proceed otherwise
    was unreasonable in these circumstances. Normally, decisions regarding
    adjournment requests attract a high degree of deference. In this case, though,
    the application judges approach to resolving the adjournment request was
    overly technical and not in keeping with the general principles set out in r.
    1.04 of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194. Those principles call for the just, most expeditious
    and least expensive determination of applications, proportionate to the
    importance and complexity of the issues, and to the amount involved in the
    proceedings: see also
Finlay v. Paassen
, 2010 ONCA 204, 101 O.R. (3d)
    390, at para. 14;
Wood v. Farr Ford Ltd.
, 2008 CanLII 53848 (Ont.
    S.C.), at para. 23.

[13]

The will application raises very serious issues regarding Mr.
    Ardiss capacity to make a new will in light of the fact that, at that time, he
    had been found NCRMD and was the subject of an ORB detention order. If the appellants
    will application were to be successful, it would render the respondents
    application to receive the insurance proceeds entirely moot because the
    appellant in her personal capacity and Trevor Ardis, who are the beneficiaries
    under Mrs. Ardiss will, would be the beneficiaries under Mr. Ardiss first
    will. In these circumstances, the application judge should have granted the
    adjournment request so that the applications could be heard together.

[14]

Second, even if the will application fails one day and the
    respondents in their personal capacities are the rightful beneficiaries of the
    Estate of Mr. Ardis, the application judge erred in how she approached the
    issue involving who should receive the insurance proceeds currently held in
    court. Specifically, the application judge erred when arriving at the
    conclusion that, following Mrs. Ardiss death, only Mr. Ardis had an interest in
    the insurance proceeds because he had sole legal ownership of the house insured
    under the policy by right of survivorship.

[15]

The right of survivorship applies only to interests in
    property held in a joint tenancy:
Hansen Estate v. Hansen
, 2012 ONCA
    112, 109 O.R. (3d) 241, at paras. 30-31. Section 2(1) of the
Estate
    Administration Act
, R.S.O. 1990, c. E. 22, provides that real or personal
    property, vested in a person without a right in any other person to take by
    survivorship, devolves to the persons personal representative on his/her death
    to be administered as part of the estate.

[16]

Here, the application judge failed to consider whether Mrs.
    Ardis (and following her death, her Estate), had an interest in the insurance
    proceeds in issue, as opposed to an interest in the house itself that was held
    in a joint tenancy and subject to a right of survivorship on Mrs. Ardiss
    death. As a result, she failed to determine two material issues that had to be
    resolved before the insurance proceeds held in court could be disbursed. First,
    she failed to resolve the timing of Mrs. Ardiss death relative to the fire,
    which may give rise to an interest in the insurance proceeds. Second, she
    failed to appreciate that, even if the Estate of Mrs. Ardis did not have an
    interest in the insurance proceeds related to the home, the Estate may nevertheless
    have an interest in the insurance proceeds related to its contents.

[17]

First, regarding the timing issue, the application judge
    erred in failing to determine when Mrs. Ardis died. The determination of this
    issue may affect whether Mrs. Ardis or her Estate has an interest in the
    insurance proceeds related to the house that was destroyed in the fire. If Mrs.
    Ardis is found to have died after the partial or complete destruction of the
    home, there is a triable issue as to whether she had an interest in the
    insurance proceeds that arose before her death.

[18]

Second, the application judge erred by focusing solely on
    the competing interests in the parties house and related insurance proceeds.
    As a result, she failed to consider the houses contents to which the right of
    survivorship may not have attached. There is a triable issue, which the
    application judge did not address, as to whether the Estate of Mrs. Ardis has an
    interest in the houses contents and therefore an interest in the $114,900 of insurance
    proceeds that were designated and paid in the settlement for the contents.

[19]

It was incumbent on the application judge to address the
    triable issues that we have just reviewed before releasing the insurance funds
    from court. She erred in failing to do so. The respondents application is
    remitted for hearing with the will application.

Disposition

[20]

The appeal is allowed, and the order is set aside.

[21]

While nothing precludes the parties from settling this
    matter, should it proceed to litigation, the will application and the respondents
    application shall be heard together. Before releasing the insurance proceeds to
    anyone, the court must first resolve which will is operative, the answer to
    which shall inform who are the rightful beneficiaries.

[22]

The insurance proceeds shall remain in court pending the
    disposition of the applications or further order.

[23]

As agreed, the appellant is entitled to costs of the appeal
    in the amount of $7,500, inclusive of disbursements and applicable taxes. The
    disposition of the costs below is reserved to the judge disposing of the
    applications.

Fairburn
    A.C.J.O.

L.B.
    Roberts J.A.

Van
    Melle, J. (ad hoc)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hulme, 2021 ONCA 887

DATE: 20211214

DOCKET: M52801 (C66831)

Lauwers, Paciocco and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Scott Hulme

Applicant/Appellant

C. Stephen White and Kristianne C.
    Anor, for the appellant

Tanit Gilliam, for the respondent

Heard: December 9, 2021

REASONS FOR DECISION

[1]

On March 26, 2016, Daniel Scott Hulme was
    arrested while smoking cocaine in a parked motor vehicle that he had been
    operating erratically. A baggie containing hydromorphone pills and 120 tablets,
    that appeared to be oxycodone tablets, was found inside the coat Mr. Hulme was
    wearing. Two of those 120 tablets were subsequently analysed to confirm the
    chemical contents of the tablets. One tablet was found to contain fentanyl and
    the other acetylfentanyl, a fentanyl analog that, like fentanyl, is a Schedule
    I drug.

[2]

In a large bag secreted under the rear seat, 11
    fentanyl patches were located along with additional hydromorphone pills, as
    well as 665 tablets that were never analysed but which were identical in size,
    shape and colour to the fentanyl and acetylfentanyl tablets that were found in
    Mr. Hulmes coat.

[3]

At his trial, Mr. Hulme pleaded guilty to operating
    a motor vehicle while impaired by drugs, and possession of cocaine, but not
    guilty to additional charges. On January 25, 2018, he was convicted of the two
    offences to which he pleaded guilty, as well as three counts of possession for
    the purpose of trafficking, one count relating to hydromorphone, another to
    fentanyl, and another to acetylfentanyl. He was also convicted of one count of
    possession of the proceeds of crime under $5,000. In the course of her
    decision, the trial judge inferred that the 665 tablets found in the large bag
    contained fentanyl and acetylfentanyl.

[4]

On March 29, 2018, Mr. Hulme was sentenced to a
    global sentence of 7 years imprisonment. He promptly appealed. His sole
    ground of appeal, in relation to his conviction appeal, was that the trial
    judge erred in relying on circumstantial evidence to conclude that the 665
    pills contained fentanyl. As part of this appeal he also sought leave to appeal
    his sentence as harsh and excessive.

[5]

Mr. Hulmes appeal was scheduled to be heard on February
    26, 2020. On February 25, 2020, he failed to surrender into custody as required
    by his bail release order pending appeal. That release order provided that
    failure to surrender into custody in accordance with the terms of this release
    order will be deemed to constitute an abandonment of the appeal. As a result,
    his appeal was dismissed as abandoned:
R. v. Hulme
, 2020 ONCA 156.

[6]

Mr. Hulme now applies to reopen his appeal. This
    court has extraordinary jurisdiction arising from its inherent power, to
    reopen a dismissed appeal in the interests of justice, so long as the appeal
    has not been dismissed on its merits:
R. v. Larocque
, 2011 ONCA 814;
R.
    v. Rhingo
(1997), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 95-96, leave
    to appeal refused, [1997] S.C.C.A. No. 256;
R. v. Riad
, 2012 ONCA 300,
    at para. 4;
R. v. Smithen-Davis
, 2020 ONCA 759, 68 C.R. (7th) 75, at
    paras. 56-57. We are not persuaded that it is in the interests of justice to
    reopen Mr. Hulmes appeal.

[7]

First, the explanation Mr. Hulme has provided
    for failing to surrender into custody is problematic. Although Mr. Hulme links
    his decision not to surrender to the paranoia that resulted from his
    unmedicated mental illness, and his fear of catching COVID-19 in the
    penitentiary, there is no suggestion that Mr. Hulme was incapable of
    appreciating his obligation and the risk it entailed. In addition to a lack of
    evidence that his mental illness was intense enough to warrant sympathetic
    consideration, Mr. Hulme has not provided an explanation for why he was
    unable to obtain the required medication, leading to his decision to
    self-medicate, which is an additional breach of the bail pending appeal order.
    In the circumstances, Mr. Hulme quite rightly admits that he does not have
    a lawful excuse for failing to surrender. He is responsible for the choice he
    made not to surrender and to breach his release order, knowing that by not
    attending he would be deemed to be abandoning his appeal. The choice Mr. Hulme
    made has caused tremendous inconvenience and expense to the administration of
    justice.

[8]

Second, on their face, Mr. Hulmes grounds of
    appeal do not suggest that a miscarriage of justice has occurred. They are
    anything but strong.

[9]

Even if it was wrong of the trial judge to infer
    that the 665 tablets contained fentanyl, which is unlikely given the
    circumstantial foundation available to the trial judge for drawing that
    inference, this ground of appeal cannot realistically result in any of the
    convictions being set aside. Mr. Hulme does not challenge the fact that other
    tablets in his possession were confirmed by analysis to contain fentanyl, or
    that he possessed these other fentanyl tablets in circumstances that drive the
    conclusion that they were possessed for the purpose of trafficking.

[10]

It is not even clear that the elimination of the
    665 tablets from consideration would be likely to render Mr. Hulmes sentence
    harsh and excessive. He has a prior related record, and the range of Schedule I
    narcotics in his possession for the purpose of trafficking likely warranted the
    sentence imposed.

[11]

Third, even if we were to accept Mr. Hulmes
    explanations for the delay in bringing his application to set aside the
    dismissal of his appeal, the Crown reasonably relied upon the dismissal of the
    appeal and the ensuing forfeiture order to dispose of the evidence that had
    been seized, including the narcotics. The Crown would therefore be prejudiced
    should a retrial be ordered because the pills could not be analyzed.

[12]

Finally, the principle of finality is a material
    consideration in determining whether the interests of justice warrant reopening
    a dismissed appeal. It is now over five years since the offence was committed,
    and more than one year since the appeal was dismissed.

[13]

In all of these circumstances the application to
    reopen is therefore denied.

P. Lauwers
    J.A.

David M.
    Paciocco J.A.

J.A. Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Urmila Holding, Inc. v. Anand
    Holdings Inc., 2021 ONCA 886

DATE: 20211214

DOCKET: C69458

Gillese, Trotter and Nordheimer
    JJ.A.

BETWEEN

Urmila Holding, Inc.

Applicant (Respondent)

and

Anand Holdings Inc., Harpaul J.
    Anand Dentistry Professional Corporation and Harpaul Jimmy Anand

Respondents (Appellants)

Mark H. Arnold, for the appellants

Allan Sternberg and Emily Hives, for
    the respondent

Heard: November 17, 2021

On appeal from the judgment of Justice
    Edward P. Belobaba of the Superior Court of Justice, dated April 19, 2021, with
    reasons reported at 2021 ONSC 2707.

Trotter J.A.:

A.

Introduction

[1]

Urmila Holding, Inc. (Urmila) purchased a unit
    in a commercial condominium plaza. It paid a premium for a unit that was
    designated for its exclusive use as a dental clinic; no other unit in the plaza
    could be used for this purpose.

[2]

When the plaza was marketed by the developer,
    Dr. Anand,
[1]
a dentist, attempted to purchase a unit designated for exclusive use as a
    dental clinic. But he was too late  Dr. Anand was advised that Urmila had
    already secured such a unit. Dr. Anand then approached Urmila and arranged to
    lease its unit for a period of ten years, with an option to renew for five
    years. As the term neared its end, Dr. Anand sought a ten-year extension of the
    lease. Urmila was only prepared to extend the lease for five years.

[3]

Unbeknownst to Urmila, Dr. Anand purchased the unit
    next door. He moved his dental practice into that unit and purported to assign
    the exclusive use benefit purchased by Urmila to himself.

[4]

Urmila applied under s. 134 of the
Condominium
    Act, 1998
, S.O. 1998, c. 19 (the Act) for a determination of its
    rights under the exclusive use provisions of the condominiums Declaration. The
    application judge held that Dr. Anand, as tenant, could convey the exclusive
    use benefit to himself, but only for the duration of the unexpired term of the
    extended lease. Dr. Anand appeals this ruling.

[5]

The following reasons explain why I would uphold
    the application judges conclusion.

B.

the facts

(1)

The Purchase and the Lease

[6]

It is difficult to improve on the application
    judges rendition of the factual context of this case. I borrow heavily from his
    reasons.

[7]

The plaza is located in the City of Brampton. When
    the plaza was being marketed, a representative on behalf of Urmila reserved an
    exclusive use unit for a dental clinic, by Reservation Form dated December 28,
    2005. It entered into an Agreement of Purchase and Sale (APS) on October 23,
    2006 and paid a premium for this type of unit. It did so with the expectation
    that the unit would appreciate in value and would attract higher rent. The APS
    provided that, if the unit was not used in accordance with its exclusive use
    within 12 months of the occupancy date, Urmila would forfeit such exclusivity
    of Use.

[8]

Urmila leased its unit, Unit 20, to Dr. Anand on
    August 8, 2007 for a period of ten years, ending on July 31, 2017. During the
    negotiation of the lease, Dr. Anand wanted confirmation that his would be
    the only dental clinic in the plaza. Urmila showed him the Reservation Form.
    Moreover, the lease incorporated the Declaration (even though it was not
    registered on title until April 11, 2008) and contained a covenant whereby
    Urmila warranted that, should its sole principal (or her husband) purchase
    another unit in the plaza, it shall not be leased to any person to operate therein
    a dental practice.

[9]

Near the end of the initial lease term, Dr.
    Anand offered to buy Unit 20 for approximately $1 million, which was well above
    market value. Urmila was not interested in selling. Dr. Anand tried to
    negotiate a ten-year extension of the lease. Urmila was only prepared to extend
    the lease for five years. A Lease Amending and Extending Agreement was entered
    into on March 14, 2017, extending the lease until July 31, 2022. Unbeknownst to
    Urmila, Dr. Anand had other ideas for his dental practice. As the application
    judge explained:

Realizing that his lease would end sooner than
    he would have preferred, Dr. Anand took the following steps to maintain his
    Plaza location. He discreetly purchased the adjacent Unit 21 while still a
    tenant in Unit 20. Sometime in 2020 (about 13 years into his 15-year lease) and
    unbeknownst to Urmila, Dr. Anand moved his dental clinic into Unit 21 and purported
    to transfer Unit 20s exclusive dental clinic use to Unit 21. Although Unit 20
    sat empty, Dr. Anand continued to pay the monthly rent.

Urmila first noticed that that the respondent
    had vacated Unit 20 and was using Unit 21 as a dental clinic in July 2020. Upon
    further investigation and a title search, Urmila discovered that Anand Holdings
    had purchased Unit 21 three years earlier on May 8, 2017  about two months
    before the end of the 10-year lease  for a purchase price of $715,000.

In a letter to the Plazas property manager
    dated July 3, 2020, Dr. Anand outlined what he had done  as the tenant
    operating a dental clinic in Unit 20, he consented in writing to allow himself
    (the owner of Unit 21) to operate a dental clinic in Unit 21.
He then
    asserted a usage exclusivity in Unit 21 that would forever bar Urmila or any
    other unit-owner in the Plaza from leasing their unit to another dentist
.
    [Emphasis added.]

[10]

Upon discovering this state of affairs, and after
    the exchange of lawyers letters, Urmila made its application under s. 134 of
    the Act.

(2)

The Declaration

[11]

The Declaration lists ten prohibited uses (i.e. tattoo
    parlour, pawn shop, etc.), as well as 32 exclusive uses, one of which is a
    dental clinic. The following sections are relevant to the dispute between the
    parties:

4.5     Restrictions of Use

Owners and the tenants, occupants, licensees
    or any other person utilizing such Owners Unit(s) shall not engage, within or
    from such Unit(s) in any of the following business operations (unless two
    contiguous Units are owned by the same Owner and are operated together as one
    of the following business operations), if such business operations are already
    being carried on in another Unit as at the date that such Owner, tenant,
    occupants, licensees or any other person utilizing such Owners Unit intends to
    engage in such existing business operations (the Existing Business):

(iv) dental clinic (includes: general
    dentistry, dental hygiene, endodontics, periodontics, orthodontics, oral
    surgery, denture therapy, paedodontics);

unless any Owner, tenant, occupant or
    licensee already carrying on an Existing Business within or from their Unit,
    consents in writing to allow any other Owner, tenant, occupant or licensee to
    carry on such Existing Business
, which consent may
    be arbitrarily withheld by any such existing Owner, tenant, occupant or
    licensee conducting, operating or carrying on such Existing Business. [Emphasis
    added.]

4.6     Leasing of Units

(d) No Owner shall be entitled to lease a Unit
    to a third party for a proposed use that is then enjoyed by or operated in
    another Unit in the Corporation.

C.

the application judges reasons

[12]

The application judge was called upon to
    interpret the relevant sections of the Declaration, particularly the
    underscored words in section 4.5, reproduced above. He observed that, in
    general, the exclusive use provisions focus on exclusive use for designated
units
.
    He said, And yet, if one reads section 4.5 literally, such exclusive usage can
    be transferred by a tenant without the knowledge or consent of the initial
    unit-owner even where, as here, the initial unit-owner paid a premium for the
    exclusive usage designation. Thus, the question was whether section 4.5 was to
    be read literally, or whether a more purposive approach was required.

[13]

On the application, the parties were in
    agreement that the principles in
Sattva Capital Corp. v. Creston Moly Corp.
,
    2014 SCC 53, [2014] 2 S.C.R. 633 applied to the interpretation of the
    Declaration. As discussed below, the appellants have changed their position on
    appeal and now insist on a literal interpretation, devoid of any context.

[14]

The application judge relied on the following
    passages from
Sattva
, in which Rothstein J. said, at paras. 47 and 58:

Regarding the first development, the
    interpretation of contracts has evolved towards a practical, common-sense
    approach not dominated by technical rules of construction. The overriding
    concern is to determine "the intent of the parties and the scope of their
    understanding" (
Jesuit Fathers of Upper Canada v. Guardian Insurance
    Co. of Canada
, 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27
per
LeBel
    J.; see also
Tercon Contractors Ltd. v. British Columbia (Transportation and
    Highways)
, 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 64-65,
per
Cromwell
    J.). To do so, a decision-maker must read the contract as a whole, giving the
    words used their ordinary and grammatical meaning, consistent with the
    surrounding circumstances known to the parties at the time of formation of the
    contract.

The nature of the evidence that can be relied
    upon under the rubric of "surrounding circumstances" will necessarily
    vary from case to case. It does, however, have its limits. It should consist
    only of objective evidence of the background facts at the time of the execution
    of the contract, that is, knowledge that was or reasonably ought to have been
    within the knowledge of both parties at or before the date of contracting.
    [Citation omitted.]

[15]

The application judge also relied on the
    principle that a commercial contract should be interpreted, in a fashion that
    accords with sound commercial principles and good business sense and that
    avoids a commercial absurdity:
All-Terrain Track Sales and Services
    Limited v. 798839 Ontario Limited
, 2020 ONCA 129, at para. 27, applying
Richcraft
    Homes Ltd. v. Urbandale Corporation
, 2016 ONCA 622, 406 D.L.R. (4th) 507,
    at para. 58.

[16]

Applying these principles, the application judge
    considered the Declaration as a whole, and ascribed meaning to its words
    consistent with the surrounding circumstances known to the parties when they
    entered into the lease. He searched for factors that were known, or ought
    reasonably to have been known, to the parties at or before the date on which they
    entered the initial ten-year lease and subsequent renewal.

[17]

He found that: (a) Dr. Anand knew that Unit 20
    had been assigned the exclusivity for use as a dental clinic; and (b) Dr. Anand
    knew or should have known that an exclusive usage designation carried a premium
    over non-exclusive usages. As noted above, the application judge considered the
    fact that Dr. Anand attempted to buy a unit in the plaza with exclusive use as
    a dental clinic, but that Urmila had already secured that right. He also took
    note of the fact that, in 2017, before negotiating the extension of the lease
    with Urmila, Dr. Anand offered to purchase Unit 20 at a price above market
    value.

[18]

Bringing these principles to bear on the facts as
    he found them, the application judge reached the following conclusions:

In my view, Mr. Sternberg, counsel for Urmila,
    provided the court with the most reasonable interpretation of the provisions in
    question. Dr. Anand, as tenant, can only consent to what he has and what he has
    is the time remaining on his lease. In other words, tracking the well-known
nemo
    dat
principle, Dr. Anand can consent to Unit 21 carrying on a dental
    clinic but this consent expires on July 31, 2022 when his five-year renewal on
    Unit 20 comes to an end.

In the present case, the operator carrying on the
    exclusive business in the existing unit is a tenant. As such the tenant has the
    contractual right to carry on the exclusive business within the existing unit
    for the term of the lease. If such tenant gives its consent to another operator
    to carry on the exclusive business in a new unit, such consent cannot be for a
    period of time longer than the balance of the lease term  because one cannot
    convey what one does not have.

In my view, this is a reasonable
    interpretation of the provisions in question because it protects Urmilas
    capital investment (its tenant will continue to pay the elevated rent on Unit
    20 to lease-end) and gives a commercially reasonable meaning to the concluding
    paragraph in section 4.5 of the Declaration.

[19]

The application judge held that, if his approach
    to interpreting the Declaration was wrong, and a literal interpretation of
    section 4.5 were required, he would still find in Urmilas favour. He concluded
    that section 4.5 did not permit Dr. Anand to consent/transfer the exclusive
    usage right to himself; the section only permits transfer to any
other
owner [or] tenant (emphasis in original).

D.

the positions of the parties

[20]

Dr. Anand submits that the application judge was
    correct to find that, as a tenant, he was permitted to assign the exclusive usage
    to himself. However, he erred in holding that the assignment was time-limited
    and would expire at the end of the extended lease. He submits that the error
    arose from the application judges erroneous interpretation of the Declaration.
    Being akin to a constitutional document,
Sattva

principles had
    no application; a literal interpretation of the Declaration authorized what Dr.
    Anand purported to do in this case.

[21]

Urmilas position on appeal is more complicated.
    It submits that the application judge was correct in applying
Sattva
and the
nemo dat
principle. However, he erred in finding that Dr.
    Anand could assign the exclusive usage benefit at all  whether to himself or
    another, time-limited or otherwise. Only Urmila, as owner, could do that. The
    complication arises because Urmila has not cross-appealed on these issues. At
    the hearing of the appeal, we were advised that Urmila is content to live
    with the outcome of the application for two reasons: (1) Dr. Anand continues
    to pay rent on Unit 20; and (2) it would not be sensible for Dr. Anand to move
    his dental practice back to Unit 20, only to move out again by July 31, 2022.

E.

analysis

[22]

The equities of this case unequivocally favour
    Urmila. Dr. Anand tried to appropriate a valuable benefit acquired by Urmila
    when it purchased Unit 20. This was done behind Urmilas back. Dr. Anand knew Urmila
    paid a premium for the unit because he attempted to purchase what Urmila had
    already bought  a unit with an exclusive usage designation as a dental clinic.
    Dr. Anand was also aware of the increased rent associated with exclusive use
    units given that he paid a premium rent to Urmila during the course of his
    tenancy.

[23]

It is nothing short of remarkable that, after
    buying Unit 21 and purporting to transfer the exclusive use benefit to himself
    (through Anand Holdings Inc.), Dr. Anand wrote to the property manager to
    declare that, the Tenant does not consent to any other unit, including any
    owner, tenant, occupier, or licensee of the Existing Unit [i.e., Urmilas unit],
    conducting, operating or owning a dental clinic.

[24]

And just like that, Dr. Anand, a tenant,
    believed he had divested Urmila of its exclusive usage right in Unit 20 in
    perpetuity. In my view, an interpretation of the Declaration, insofar as it
    impacts on the contractual arrangements between these parties, that allowed
    this result to stand would amount to a commercial absurdity.

[25]

I am troubled by Dr. Anands change of position
    on appeal, repudiating the acknowledgment of his counsel on the application
    (not Mr. Arnold) that
Sattva
principles governed the interpretation of
    the Declaration in the context of this case. Nonetheless, I agree with the
    submission made by counsel for Urmila that the application judge did not err in
    allowing the contractual interpretation principles in
Sattva
to guide
    his approach to interpreting the Declaration; after all, the Declaration was
    incorporated into and formed part of a contract  the lease.

[26]

Dr. Anand relies on
Metropolitan Toronto
    Condominium Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan
    Condominium Corp. No. 590
, 2020 ONCA 471, 21 R.P.R. (6th) 189, as
    authority for the proposition that the principles of contractual interpretation
    mandated in
Sattva
do not apply to condominium declarations. He relies
    on a passage in which Nordheimer J.A. acknowledged the caution in
Sattva
against courts too readily finding extricable questions of law when engaged in
    contractual interpretation. As he said, at para. 15:

Here, though, while a declaration under the
Condominium
    Act
could be characterized as a contract, [it] is not the type of contract
    negotiated between two parties, to which the comments in
Sattva
were
    directed. A declaration is a special form of contract, the structure of which
    is prescribed by statute. It must adhere to certain statutory requirements.
    Indeed, the
Condominium Act
provides, in s. 7(5), that, if there is
    any conflict between the statute and the declaration, the statute prevails.

[27]

I agree with counsel for Urmila that this
    decision did not purport to oust the application of
Sattva
principles
    in this context; the passage reproduced is concerned with the standard of
    review on appeal. See
Seto v. Peel Condominium Corporation No. 492
,
    2016 ONCA 548, at para. 10, in which this court applied
Sattva
to the
    interpretation of a Declaration. Here, in contrast, we are dealing with the
    proper interpretation of the contractual arrangements between these two
    parties.

[28]

The application judge properly identified the
    background factors that were known or ought to have been known by the parties
    when they entered into the lease agreement and the subsequent extension.
    Importantly, the Declaration was incorporated into the lease between Dr. Anand
    and Urmila.

[29]

Another factor to consider is that Urmila, as
    owner of the exclusive use unit, was not obliged to carry on the exclusive use business
    itself. It only covenanted to ensure that the unit would be used for the
    designated purpose; otherwise, it would lose its exclusive use designation. In
    order to preserve this exclusive use benefit, Urmila leased the unit to Dr.
    Anand. It would make no commercial sense if, in fulfilling this contractual obligation
    in the way that it did, Urmila risked losing a valuable property right to its
    tenant.

[30]

Consequently, the parties could not have
    reasonably intended that Dr. Anand, as tenant, could arrogate to himself
    the exclusivity benefit in Unit 20, forever divesting Urmila of something it
    had purchased.

[31]

Moreover, as the application judge observed, the
    bulk of the language in the exclusive use provisions of the Declaration signal
    that the use attaches to the unit itself. This is also reflected in the language
    of the Reservation Form (which Dr. Anand inspected) and in the APS.
    Moreover, Urmila covenanted in the lease that, if its sole principal (or her
    husband) acquired another unit in the plaza, they would not permit the
    operation of a dental clinic therein, further supporting the interpretation
    that the exclusive usage right attached to the unit. It belonged to the owner/landlord,
    Urmila, not Dr. Anand.

[32]

The application judge bolstered his conclusion
    through his reliance on the
nemo dat

principle
.
In
Green
    v. Green
, 2015 ONCA 541, 387 D.L.R. (4th) 512, in the family law context,
    this court said, at para. 53: at common law, an assignor may not assign more
    than it has, or put differently,
nemo dat quod non habet
, no one gives
    who does not possess.

Applying this principle, the application judge
    held that, although the exclusive usage right belonged to Urmila as the owner
    of Unit 20, as a tenant, Dr. Anand had a limited right to assign the exclusive
    usage for as long as he was entitled to the benefit of the exclusive use under
    the lease.

[33]

As noted above, because Urmila is content with
    the current arrangements, it did not seek to improve its position by cross-appealing
    this aspect of the application judges order. Similarly, Urmila did not attempt
    to achieve the same result by urging upon us the application judges
    alternative mode of analysis (i.e., that Dr. Anand could not assign or convey
    exclusive usage to himself). In the circumstances, it is neither appropriate
    nor necessary to resolve these issues. However, nothing in these reasons should
    be taken as endorsing these aspects of the application judges decision. The
    resolution of both issues is best left for another day when they are squarely
    before us.

F.

conclusion

[34]

I would dismiss the appeal. I award costs to Urmila
    in the amount of $30,000, inclusive of HST and disbursements.

Released: December 14, 2021 E.E.G.

Gary Trotter
    J.A.

I agree.
E.E. Gillese J.A.

I agree. I.V.B.
    Nordheimer J.A.

[1]
Dr.
    Anand operated his dental practice through Harpul J. Anand Dentistry
    Professional Corporation. His holding company, Anand Holdings Inc., later
    became involved in what happened. For simplicitys sake, it is convenient to
    keep Dr. Anand at the forefront of the narrative, unless otherwise specified.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mansaray, 2021 ONCA 894

DATE: 20211213

DOCKET: C69464

MacPherson, Coroza and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kelleh Junior Mansaray

Appellant

Kelleh Junior Mansaray, acting in person

Erin Dann, appearing as duty counsel

Erin Carley, for the respondent

Heard: December 9, 2021

On appeal from the conviction entered by
    Justice David L. Edwards of the Superior Court of Justice on February 22,
    2019, and from the sentence imposed on February 17, 2021, with reasons for
    sentence at 2021 ONSC 1188.

REASONS FOR DECISION

[1]

The appellant was convicted of possession of
    cocaine for the purpose of trafficking; possession of proceeds of crime not
    exceeding $5,000; and breach of a probation order. He was sentenced to a
    custodial sentence of two years less one day, followed by 24 months of
    probation. The trial judge also made several ancillary orders. The appellant
    has abandoned his appeal from conviction but pursues his sentence appeal.

[2]

On behalf of the appellant, duty counsel raises
    three grounds of appeal.

[3]

First, the trial judge found as an aggravating
    factor that the appellant had lied during the trial. Duty counsel submits that
    it is well established that the manner in which an accused person presents his
    or her defence is not to be treated as an aggravating factor: see
R. v. Kozy
(1990), 58 C.C.C. (3d) 500 (Ont. C.A.).

[4]

Second, the trial judge failed to account for
    potential collateral immigration consequences.

[5]

Third, in rejecting a conditional sentence, the
    trial judge erred in his assessment of the potential risk to the community by
    failing to take into account a relevant factor  namely that the appellant had
    been on bail for a significant period of time without any further offence.

[6]

The appellant has a sympathetic background. The trial
    judge accepted that when the appellant was approximately ten years old, the
    appellant was abducted and held hostage as a child soldier in the Revolutionary
    United Front in Sierra Leone. As a child soldier he was required to kill
    and torture. Discipline was imposed on him through beatings. Eventually the
    appellant escaped and immigrated to Canada where he lived with his father.

[7]

At the request of the defence, the trial judge
    ordered a report pursuant to s. 21(1) of the
Mental Health Act, R.S.O.
    1990, c. M.7
. Dr. Chaimowitz provided a report and found that the
    appellant continues to experience symptoms of posttraumatic stress. Dr.
    Chaimowitz concluded that the appellant was a moderate to high risk to reoffend
    generally and a high risk to reoffend violently and that the appellant would
    likely benefit from an intensive, comprehensive treatment program for substance
    abuse, characterological vulnerabilities, and difficulty with anger and
    aggression.

[8]

After summarizing Dr. Chaimowitzs report in his
    reasons, the trial judge noted that it was impossible to imagine the horrors
    that [the appellant] experienced as a child. The mental health assessment
    confirms that the experience continues to impact upon him today.

[9]

On appeal, the appellant has tendered two
    letters as fresh evidence.  The first letter is confirmation from The Salvation
    Army that the appellant has been accepted into the Ottawa Booth Centre
    Addiction Services Programs. The program is a residential treatment program
    that is staffed twenty-four hours a day and includes counselling for anger
    management and emotional health. The second letter is from a social worker with
    the Ministry of the Solicitor General. The letter outlines the steps that the
    appellant has taken and progress made while at the Niagara Detention Centre, by
    participating in programming and counselling. According to the social worker
    the appellant has been participating in ongoing counselling and has
    demonstrated significant insight into his challenges. The social worker notes
    that the appellant appears to be highly dedicated in his efforts to address his
    mental health, substance abuse and criminal behaviour.

[10]

The respondent very fairly concedes the first
    ground of appeal. However, the respondent submits that the error is
    inconsequential because the sentence imposed by the trial judge was fit.

[11]

We are persuaded that the trial judge erred in
    principle in relying on the conduct of the appellants defence as an
    aggravating factor. We are also persuaded that the trial judge erred by not
    considering the potential collateral effect a sentence of custody would have on
    the appellants immigration status. The trial judge concluded that he would not
    consider that issue because any collateral consequences regarding the
    appellants immigration status were raised only in passing. In fairness to the trial
    judge, defence counsel in his sentencing submissions did not provide meaningful
    submissions on this issue. In contrast, we have had the advantage of hearing
    comprehensive submissions made by duty counsel on this issue.

[12]

In our view, these errors had an impact on the
    sentence imposed. Therefore, it falls on this court to consider a fit sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[13]

Given the appellants background, his mental
    health issues as outlined in Dr. Chaimowitzs report, the fresh evidence and
    the potential immigration issues that could arise because of the custodial
    sentence, we cannot say that a conditional sentence of imprisonment is unfit.

[14]

Accordingly, we allow the sentence appeal and
    impose a conditional sentence of 2 years less one day on the following agreed
    upon conditions:

·

Keep the peace and be of good behaviour;

·

Appear before the court as directed;

·

Report to a supervisor within 1 week after this
    courts decision is released and thereafter as directed by the supervisor;

·

Remain in Ontario, unless written permission to
    leave Ontario is first obtained from the court or the supervisor;

·

Notify the court or the supervisor in advance of
    any change of name or address and promptly notify the court or the supervisor
    of any change in employment or occupation;

·

Reside at the Salvation Army Addictions Services
    Program (the Anchorage Residential Treatment Program) in Ottawa, or another
    residential treatment program approved by the supervisor; and after discharge
    from the residential treatment facility, reside at an address approved in
    advance by the supervisor;

·

Follow all rules and requirements of any
    residential treatment program where you are residing;

·

Attend and actively participate in all
    assessments, counselling or rehabilitative programs as directed by the
    supervisor and complete them to the supervisors satisfaction;

·

Sign release forms as required to enable the
    supervisor to monitor your attendance and completion of any assessments,
    counselling or rehabilitative programs;

·

Abstain from the consumption of drugs or alcohol
    except in accordance with a medical prescription; and

·

Abstain from owning, possessing or carrying a
    weapon.

[15]

For these reasons, we admit the fresh evidence.
    We dismiss the conviction appeal as abandoned. We allow the sentence appeal, set
    aside the custodial sentence imposed by the trial judge, and impose a
    conditional sentence of imprisonment on the terms agreed upon by the parties and
    effective as of the date when sentence was imposed by the trial judge. The
    probation order and ancillary orders as imposed by the trial judge stand.

J.C. MacPherson J.A.

S. Coroza J.A.

Sossin J.A.