COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Theriault, 2021 ONCA 554

DATE: 20210730

DOCKET: M52670 (C68671)

Thorburn J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Michael
    Theriault

Applicant (Appellant)

Michael W. Lacy and Deepa Negandhi, for the applicant

Susan Reid, for the respondent

Heard: July 23, 2021, by
    videoconference

ENDORSEMENT

OVERVIEW

[1]

The applicant, Michael Theriault, seeks bail pending the determination
    of his application for leave to appeal to the Supreme Court of Canada. He seeks
    leave to appeal both his conviction for assault and his sentence of nine
    months imprisonment.

[2]

He claims he meets the test for granting bail as his appeal is not
    frivolous, he will surrender when required, and the public interest favours
    granting him bail pending determination of his application for leave to appeal
    to the Supreme Court.

[3]

In seeking bail, the applicant focuses on three main grounds of appeal
    raised in his leave application from this courts endorsement of the trial
    judges decision:

1.

the trial judge erred in his use of social context and systemic racism
    to inform credibility assessments and increase the range of sentence;

2.

the trial judge erred in his finding with respect to the way a door or
    window was damaged; and,

3.

the trial judge erred in holding that simple assault is a lesser and
    included offence of aggravated assault.

[4]

The Crown claims these grounds of appeal are frivolous and the
    applicants continued detention is in the public interest and that he should therefore
    remain in detention.

[5]

For the reasons that follow, the application for bail is denied.

THE EVIDENCE AT TRIAL

[6]

The circumstances giving rise to the charges before the trial judge are
    as follows: The applicant is a Toronto police officer. While he was off duty,
    he chased and struck the complainant  Dafonte Miller, a young Black man
    leaving him permanently blind in one eye.

[7]

The complainant testified that the applicant chased and struck him for
    no reason.

[8]

The applicant testified that, after seeing the complainant and his
    friends break into a vehicle on his parents property, he and his brother gave
    chase. They caught the complainant and body checked him. He claimed that the
    complainant then began to hit him with what he later learned was an aluminum
    pipe. He, in turn, punched the complainant in the face to disarm him. The
    applicant denied using the pipe to strike the complainant.

[9]

The trial judge rejected the complainants account that the applicant
    chased and struck him for no reason, noting that the complainant attempted to
    proffer a false version of events and perjured himself. He found his testimony
    internally inconsistent and contradicted by physical evidence. Instead, the
    trial judge accepted the applicants testimony that the complainant was
    breaking into cars and fled to avoid being apprehended. He also accepted that
    the complainants injury was likely caused by being punched and he had a
    reasonable doubt as to whether the punch was in self-defence.

[10]

The
    applicant was therefore acquitted of aggravated assault.

[11]

However,
    the trial judge did not believe the applicants evidence that he did not hit
    the complainant with the pipe. Instead, he concluded that, at the end of the
    struggle, the applicant struck the complainant in the head with the pipe as he
    sought assistance at a nearby house. The applicant could not have been acting
    in self-defence at the time. He was therefore convicted of assault.

[12]

In
    so doing, the trial judge held that the complainants evidence on this issue
    could be relied on notwithstanding that he perjured himself, because his
    evidence could be corroborated in several respects and, as a young Black man,
    he might have reasons to distrust law enforcement.

THE TEST FOR BAIL PENDING LEAVE TO APPEAL TO THE SUPREME COURT

[13]

The
    test for bail pending determination of an application for leave to appeal to
    the Supreme Court is governed by s. 679(3)(a) to (c) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. The applicant must establish that: (a) the application
    for leave is not frivolous, (b) the applicant will surrender into custody as
    required, and (c) detention is not necessary in the public interest.

[14]

The
    applicant bears the burden of establishing each of the three itemized release
    considerations on a balance of probabilities before an interim judicial release
    order may be made:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at
    para. 19.

[15]

In
    an application for post-appeal bail pending leave such as this, the court not
    only has the benefit of the first-instance decisionmakers reasons for
    conviction and sentence but also the decision of the panel that rejected what
    are presumably the applicants best arguments in seeking a further appeal
    against that conviction and sentence. However, even in these circumstances,
    reasonable measures should be taken to ensure the applicant is not deprived of
    the benefits of a successful second appeal, particularly where he will have
    served all or almost all of his sentence before the appeal is adjudicated:
R.
    v. Manuel
, 2021

ABCA 187, at paras. 48-49.

[16]

There
    is no concern about the applicant surrendering himself into custody as
    required. He has therefore satisfied the criterion in s. 679(3)(b). The only
    issues to be addressed therefore are (1) whether the application for leave is
    frivolous and (2) whether detention is necessary in the public interest.

DISCUSSION

(1)

Is the application for leave to appeal not frivolous?

[17]

As
    noted above, the applicant raises three issues in this bail application that he
    says makes his application for leave not frivolous.

[18]

Before
    addressing these issues, it is important to recall the principles governing the
    consideration of the not frivolous criterion. There is no dispute that, as
    the Supreme Court observed in
Oland
, at para. 20, the not frivolous
    criterion sets a very low bar. The purpose of this criterion is to require
    the applicant to demonstrate that the leave application has some merit such
    that the appellate process is not abused by those attempting to forestall the
    execution of a custodial sentence: see
R. v. T.S.D.
, 2020 ONCA 773, at
    para. 24.

[19]

Although
    the not frivolous criterion is not a high threshold, its consideration at
    this stage of the proceedings must take account of the stringent requirements
    for obtaining leave to appeal to the Supreme Court: see, e.g.,
R. v.
    Boussoulas
, 2018 ONCA 326, at para. 14;
Manuel
, at para. 30; and
R.
    v. Boima
, 2018 BCCA 498, at para. 18. The Supreme Court grants leave to
    appeal sparingly:
R. v. Fundi
, 2012 ONCA 227, at para. 8. The
    assessment of whether the application for leave to appeal is not frivolous is
    informed by this context.

[20]

Bearing
    these principles in mind, I consider each of the applicants three grounds of
    appeal. The first is the trial judges use of social context in assessing the
    complainants credibility and in sentencing the applicant.

(a)

Use of social context in assessing credibility and sentencing

[21]

In
    reviewing the complainants evidence, the trial judge held that as a young
    black man, Mr. Miller may well have had many reasons for denying any wrongdoing
    including a distrust of law enforcement. He noted that the complainants
    evidence should be assessed in a fair context and with a sensitivity to the
    realities that racialized individuals face in society.

[22]

Further,
    in deciding what an appropriate sentence would be, he held that a heightened
    degree of denunciation was required because of increasing awareness of
    anti-Black racism and that sentences must evolve in tandem with developing
    societal values.  He imposed a nine-month sentence for assault.

[23]

In
    affirming the trial judges conviction, this court held that:

[I]t is incumbent on trial judges
    to consider relevant social context, such as systemic discrimination, when
    making credibility assessments.

[24]

In
    affirming the sentence, this court held that:

As our society comes to grips with
    disproportionate rates of police violence against Black people, it is integral
    that the need for denunciation of crimes that are emblematic of these broader
    social patterns develops accordingly.

[25]

The
    applicant argues that this reasoning is flawed as it suggests that:

[I]t would amount to legal error for a trial judge to fail to
    consider relevant social context, including systemic racism, when making
    credibility assessments. What the decision does not unpack is how a trier of
    fact is to do so? Does it mean that when a racialized person is testifying,
    their evidence is to be assessed differently than non-racialized persons? Do
    normal credibility indicators need to be abandoned, adapted or reconsidered?
    What about standard jury instructions involving credibility assessments? What
    are juries to be told?

The decision has the potential to
    impact and affect credibility assessments not only for victims of violent crime
    (as the Court concluded Mr. Miller was) but also any racialized accused person
    alleged to have committed a crime who testifies. [Footnote omitted.]

[26]

The
    applicant claims that the use of social context in assessing credibility and
    determining an appropriate sentence is an issue of public importance that
    transcends the circumstances of this case, given that this was not a racially
    motivated crime. As such, there is a reasonable chance the applicant will be
    granted leave to appeal to the Supreme Court on this issue.

[27]

I
    disagree.

[28]

This
    courts assertion that it is incumbent on trial judges to consider relevant
    social context, such as systemic racism, when making credibility assessments
    has been addressed by the Supreme Court in
R. v. Le
, 2019 SCC 34,
    [2019] 2 S.C.R. 692. The issue is not a new one.

[29]

In
Le
, at para. 89, the court held that:

[I]nformation about race and
    policing plays a crucial role and may also inform many issues, including fact
    finding, credibility assessments, determining what evidence is accepted as
    persuasive.

[30]

Triers
    of fact are routinely instructed to consider whether there is any explanation
    for evidence proffered and whether it makes sense. The standard jury
    instructions state that, in addition to factors such as honesty and a witness
    interest in the case, other case-specific factors may be added.

[31]

The
    trial judge considered social context but he did not invoke social context to
    accept the complainants evidence and excuse any inconsistences because the
    complainant was Black; he rejected significant aspects of the complainants
    version of events and only relied on those aspects that were confirmed by
    independent evidence.

[32]

As
    noted by this court, the trial judge found that the complainants evidence as
    to what happened during the assault was independently supported by several
    pieces of evidence, including a scrape on the glass of the front door, the
    complainants blood on the end of the pipe, and the applicants admission that he
    brandished the pipe.

[33]

The
    statement from this court was that it is incumbent on trial judges to consider
relevant
social context (emphasis added) when
    making credibility assessments. This does not mean that credibility indicators
    need to be abandoned, but merely reflects the existing obligation on triers of
    fact to consider all relevant factors that may affect the credibility and/or
    reliability of a witness testimony. This statement is entirely consistent with
    the earlier statement of the Supreme Court in
Le
, set out above, that
    social context plays a crucial role and may also inform many issues, including
    fact finding, credibility assessments, [and] determining what evidence is
    accepted as persuasive.

[34]

Turning
    to the role of social context in sentencing, defence counsel conceded in his
    sentencing submissions at trial that the court could take judicial notice of
    the problematic issue of interactions between police and Black youth. The trial
    judge concluded that the case called for a heightened degree of denunciation
    given the social context and the importance of denunciation as a collective
    statement of societal values, including increased awareness of anti-Black
    racism. However, he also held that:

I remain mindful of the need to
    maintain proportionality.  While the sentence I impose must reflect the need
    for denunciation, the sentence must ultimately remain proportionate to the
    gravity of the offence and the offenders degree of moral responsibility.  The
    gravity of the offence must be assessed against the contextual backdrop,
    however, the sentence imposed cannot be disproportionate in an attempt to right
    past societal or systemic failings.

[35]

General
    and specific denunciation and deterrence are two factors that must be taken
    into account in sentencing in this case. The trial judge balanced the need for
    denunciation and deterrence with the need to impose a sentence that was
    proportionate to the offence and the offender. There is no clear range of
    sentence that reflects these circumstances, the cases referred to by the
    defence at trial are dated and distinguishable, and there is no reason to
    conclude the sentence was unfit.

[36]

Lastly,
    in assessing whether a ground of appeal raised in application for leave is not
    frivolous, the court must consider the stringent requirements for leave to the
    Supreme Court. Speaking extrajudicially, Sopinka J. observed that one
    consideration in the determination of public importance is whether the question
    is germane to the disposition of the case: see Henry S. Brown
et al.
,
Supreme Court of Canada Practice
(Toronto: Thomson Reuters Canada Ltd.,
    2020), at s. 1.2 (WL), quoting John Sopinka, The Supreme Court of Canada
    (April 10, 1997).

[37]

Important
    issues such as social context must therefore be examined in the context of the
    evidence adduced in a particular case. If there is little or no prospect that
    the findings or the outcome will be altered in a given case, leave to appeal
    may be denied regardless of the fact that issues of public importance are
    addressed in the case.

[38]

For
    these reasons, the applicant has not satisfied me that his ground of appeal
    impugning the trial judges use of social context is not frivolous.

(b)

Misapprehension of evidence or finding corroboration where none exists

[39]

The
    second ground of appeal the applicant raises is the claim that the trial judge
    misapprehended the evidence and/or improperly found corroboration where none
    existed.

[40]

The
    applicant raises several issues in the trial judges findings, affirmed by this
    court. For example, the applicant claims that the trial judge improperly
    concluded that certain damage was caused by the aluminum pipe in the absence of
    expert evidence or any witness having attested to the same.

[41]

This
    court held that:

[I]t was within the trial judges discretion, as the trier of
    fact, to reject defence counsels theory. The trial judge found that a hand or
    fist would not have caused the gouge/scrape in the glass, whereas, it would
    have been caused by contact with the edge of a metal pipe. While this finding
    was neither supported by any expert evidence, nor expressed by any of the
    witnesses, it nevertheless rested on common sense. This non-technical matter
    did not require expert evidence as it was within the knowledge and experience
    of the ordinary person and trier of fact:
R. v. Mohan
, [1994] 2 S.C.R.
    9, at pp. 23-25.

[42]

The
    applicant properly acknowledges that this type of argument is not one that the
    [Supreme] Court would normally grant leave on but claims that the supposed
    misapprehensions are inextricably linked to the trial judges approach to the
    credibility assessment generally.

[43]

In
    my view, the factual arguments raised by the applicant add little to the
    credibility-based ground of appeal, which I have already discussed.

[44]

This
    ground of appeal also does not meet the not frivolous threshold and the
    applicant has therefore not satisfied the requirement in s. 679(3)(a) on this
    ground.

(c)

Whether assault is a lesser and included offence of aggravated assault

[45]

The
    third issue raised by the applicant is whether assault is a lesser and included
    offence of aggravated assault. The charge was that on or about

December
    28, 2016, he did wound, maim and/or disfigure Dafonte Miller, thereby
    committing an aggravated assault.

[46]

The
    trial judge acquitted the applicant of aggravated assault because he concluded
    that the injury to the complainants eye was caused by a punch not by being
    struck by a pipe and that,

[W]hen I
    consider the whole of the evidence, I am left with reasonable doubt about
    whether Michael and Christian Theriault were acting in lawful self-defence
    during this portion of the incident
. If Mr. Miller initially wielded the
    pipe, Michael and Christian would have been entitled to act in self-defence by
    repeatedly punching Mr. Miller to disarm him and thereafter to prevent him,
    within reason, from engaging in any further assaultive conduct. [Emphasis
    added.]

[47]

He
    therefore acquitted the applicant of aggravated assault.

[48]

He
    held, however, that he was satisfied beyond a reasonable doubt that later in
    the transaction, the applicant was no longer acting in self-defence when he
    struck the complainant with the pipe, although it caused no injury. He
    therefore convicted the applicant of simple assault.

[49]

The
    trial judge was later asked to reopen the case to address the issue of whether
    the conviction for assault was a lesser and included offence of aggravated
    assault:
R. v. Theriault
, 2020 ONSC 5725. In dismissing the
    application, he rejected the applicants assertion that the assault was not a
    lesser and included offence for the following reasons:

[Defence counsel] argues that once the defence admitted that
    Mr. Millers injuries constituted wounding, maiming or disfiguring, the
    only issue for the court to determine was whether those injuries were the
    result of an assault committed without any justification or excuse. As such,
    the simple assault that Michael Theriault was found guilty of committing later
    in the altercation was not a lesser and included offence of the
specific
aggravated
    assault that was charged and was the subject of the trial. Boiled down to its
    essence, the argument is that Michael Theriault was found guilty of an offence
    that fell outside the transaction contemplated by the indictment, the
    procedural history and the admissions.

This argument is also without
    merit.
The count in the indictment was not particularized
    in any fashion. It simply alleged an aggravated assault. The transaction that
    sat at the core of the Crowns case was a beating of Mr. Miller by Michael and
    Christian Theriault. The beating was comprised of many individual blows
    delivered by both accused. The beating started when Mr. Miller ran in-between
    the homes and ended once police arrived and found Mr. Miller on the ground. The
    issue the court had to determine was whether some, none or all of the blows
    during this incident amounted to unlawful assaults and if so, whether it was
    proven beyond a reasonable doubt that the injuries Mr. Miller suffered were
    caused by these assaults.
[Italics in original; underlining added.]

[50]

This
    court upheld the verdict on the basis that the assault was part of the same
    transaction as the aggravated assault and therefore was a lesser and included
    offence. This court has previously taken this approach in similar
    circumstances: see
R. v. Rocchetta
, 2016 ONCA 577, 352 O.A.C. 130.

[51]

In
    seeking leave to appeal, the applicant claims there is competing appellate
    authority on the issue of what constitutes a lesser and included offence and
    that the approach of the majority in
R. v. Taylor
(1991), 66 C.C.C.
    (3d) 262 (N.S.S.C. App. Div.), should be preferred and would lead to his
    acquittal for assault.

[52]

Relying
    on
Taylor
, the applicant argues that his conviction for assault was
    not part of the same transaction as the charge of aggravated assault and
    therefore cannot be a lesser and included offence.

[53]

I
    disagree.

[54]

Section
    581(1) of the
Criminal Code
provides that each count in an indictment
    applies to a single transaction.

[55]

Simple
    assault is the intentional non-consensual application of force:
Criminal
    Code
, s. 265(1)-(2);
Canadian Foundation for Children, Youth and the
    Law v. Canada (Attorney General)
, 2004 SCC 4, [2004] 1 S.C.R. 76, at para.
    1.  Aggravated assault is the intentional non-consensual application of force
    that wounds, maims, disfigures or endangers the life of the complainant:
Criminal
    Code
, s. 268(1). The only distinguishing feature of aggravated assault is
    the element of wounding, maiming, disfiguring, or endangering the life of
    another person assaulted.

[56]

The
Taylor
decision is dated and has since been distinguished by this
    court in
Rocchetta
, at paras. 49-50, for the following reasons:

The majority [in
Taylor
] in considering whether those
    two events were part of the same transaction, framed the issue this way, at p.
    269: The question is raised whether an accused can be convicted under s.
    267(1)(b) of an assault not causally connected with the bodily harm. The
    majority answered the question in the negative observing that the only assault
    included in the allegation of assault bodily harm was the assault that was
    alleged to have caused the bodily harm.

With
    respect, the majoritys approach fails to distinguish between the acts to be
    proved to establish the offence as charged and the transaction referred to in
    the charge.
The latter describes an event or a series of events. The
    former refers to the essential element of the charge. Proof of bodily harm was
    an essential element of the full offence charged in
Taylor
.
The allegation of bodily harm did not, however, necessarily
    limit the scope of the transaction referred to in the allegation to the assault
    that caused the bodily harm
. The scope of the charge depended on the
    wording of the charge and the evidence describing the circumstances of the
    alleged offence. A single transaction alleging an assault causing bodily harm
    can encompass the
actus reus
of more than one assault.
Liability for the included offence of common assault is
    established if the Crown proves a common assault that occurred within the terms
    of the transaction referred to in the charge
. [Emphasis added.]

[57]

This
    definition of a single transaction is consistent with the observation in
R.
    v. Manasseri
, 2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 73, leave to
    appeal refused, [2016] S.C.C.A. No. 513, that a single transaction can include
    circumstances that are successive and cumulative and which comprise a series
    of acts that are sufficiently connected. It has been followed by this court on
    several occasions: see, e.g.,
R. v. Kenegarajah
, 2018 ONCA 121, at
    paras. 30-32, leave to appeal refused, [2018] S.C.C.A. No. 472;
R. v.
    Schoer
, 2019 ONCA 105, 371 C.C.C. (3d) 292, at para. 62. It has also been
    followed by courts across Canada: see, e.g.,
Drouin c. R.
, 2020 QCCA
    1378, at para. 219, leave to appeal refused, [2020] S.C.C.A. No. 465 (
Lafortune
),
    and [2020] S.C.C.A. No. 468 (
Amato
);
R. v. James
, 2021 BCSC
    1408, at para. 83.

[58]

By
    contrast, the reasons of the majority in
Taylor
have not been followed
    to any appreciable extent, despite being rendered twenty-five years prior to
Rocchetta
.

[59]

Moreover
    and in any event, the majority in
Taylor
, accepted that [a]
    transaction may and frequently does include a series of occurrences extending
    over a length of time: at p. 270, quoting
R. v. Barnes
(1975), 26
    C.C.C. (2d) 112 (N.S.S.C. App. Div.), at p. 119, quoting
R. v. Canavan and
    Busby
, [1970] 5 C.C.C. 15 (Ont. C.A.), at p. 18, leave to appeal refused,
    [1970] S.C.R. viii.

[60]

The
    majority in
Taylor
, at p. 270, quoted with approval the reasons in
Barnes
,
    at p. 125, where the same court held that:

In considering
the validity of a
    charge  whether it is or is not duplicitous or multifarious or
whether it does or does not apply to a single transaction
    the wording, scope, and nature of the charge (and its particulars, if any) are
    what must be tested
. Thus, so long as evidence is directed to the
    continuing offence contained in the charge, the validity of that charge is not
    affected by the fact, on the one hand, that two or more acts or occurrences
    falling within the ambit of the charge are proved or, on the other hand, that
    some of the acts or occurrences alleged are not proved. [Emphasis added.]

[61]

It
    is clear that where assaults occur in the course of a single transaction, a
    charge of aggravated assault can encompass the
actus reus
of more than
    one instance of non-consensual application of force by the accused, including a
    lesser and included offence of assault.  I do not read
Taylor
to
    suggest otherwise.

[62]

In
    this case, the indictment is not particularized except by indicating that an aggravated
    assault took place on the day in question.

[63]

The
    transaction that sat at the core of the Crowns case was a beating of the
    complainant on the day in question. The trial judge found as a fact that there
    was a consistent and sustained attack on the complainant over a short period.
    The Crown took the position from the outset that the attacks on the complainant
    were connected and occurred in the course of a single transaction.

[64]

The
    only issue at trial was whether some, all or none of the blows during this
    transaction on the day in question amounted to unlawful assaults and if so,
    whether it was proven beyond a reasonable doubt that the injuries the
    complainant suffered were caused by these assaults.

[65]

In
    my view therefore, there is no serious issue as to whether simple assault is a
    lesser and included offence of aggravated assault in this charge, as the
    assault is part of the same transaction.

[66]

For
    these reasons, I find that, as with the first two grounds of appeal, this final
    ground of appeal also does not meet the not frivolous threshold.

(2)

Is detention not necessary in the public interest?

[67]

The
    applicant argues that his continued detention is not necessary in the public
    interest, given the strong grounds of appeal raised in his application for
    leave to appeal and the likelihood that he will serve a substantial portion of
    his sentence prior to any determination of the application.

[68]

I
    am not satisfied, however, that his detention is not necessary in the public
    interest.

[69]

The
    meaning of public interest in the context of post-conviction bail
    applications was described by Arbour J.A., for a five-judge panel, in
R. v.
    Farinacci
(1993), 109 D.L.R. (4th) 97 (Ont. C.A.), at p. 118:

The concerns reflecting public
    interest, as expressed in the case-law, relate both to the protection and
    safety of the public and to
the need to maintain a
    balance between the competing dictates of enforceability and reviewability
.
    It is the need to maintain that balance which is expressed by reference to the
    public image of the criminal law, or the public confidence in the
    administration of justice.  [Emphasis added.]

[70]

The
    parties agree that there is no public safety concern with releasing the
    applicant, but dispute whether, in balancing the enforceability and
    reviewability interests, the applicants release would undermine public
    confidence in the administration of justice. The court in
Oland
, at
    para. 29, underscored that [r]arely does [the public confidence] component
    play a role, much less a central role, in the decision to grant or deny bail
    pending appeal.

[71]

As
    noted by Doherty J.A. in
R. v. Drabinsky
, 2011 ONCA 647, 276 C.C.C.
    (3d) 277, at para. 11: At this stage of the proceedings [where conviction and
    sentence have been affirmed without further right of appeal], the principle
    that trial judgments should be enforced is very much in play while the
    operation of the reviewability principle is contingent upon the granting of
    leave to appeal: see also
Boussoulas
, at para. 22. The seriousness of
    the offence and the strengths of the grounds of appeal are among the most
    important factors in assessing reviewability and enforceability:
Oland
,
    at paras. 37-46.

[72]

If
    reviewability is not considered, a successful appeal could be rendered
    fruitless. This is particularly true in cases such as this, where the custodial
    sentence is nine months. Taking into account earned remission, the applicant
    can reasonably be expected to be released from custody at the latest after
    serving two thirds of his sentence, i.e. six months. Moreover, he will be
    eligible for parole after serving just one third of the sentence, i.e. three
    months. If his leave application is determined in three to six months, the
    applicant may have served most of his time before the leave application is
    determined.

[73]

On
    the other hand, it is also important to consider the enforceability interest
    and the finality principle  especially after an accused person has been found
    guilty and an appeal has been heard and dismissed, bearing in mind that leave
    to appeal is granted sparingly.

[74]

In
    my view, in the circumstances of this case, the applicant has not established
    on balance that the reviewability interest outweighs the enforceability
    interest.

[75]

First,
    the grounds for the application for leave to appeal have little chance of
    success. As the court noted in
Oland
, at para. 44, at the public
    interest stage of the analysis, a more pointed assessment of the strength of
    an appeal is required and the court will consider if the grounds of appeal
    clearly surpass the minimal standard required to meet the not frivolous
    criterion. For the reasons discussed above, the grounds of appeal raised in
    the application for leave do not clearly surpass the not frivolous threshold.

[76]

Second,
    the offence is serious. As the trial judge observed in his sentencing reasons,
    the assault was gratuitous and violent. The applicant struck the acutely
    vulnerable complainant with a metal pipe while he was seriously injured and
    posed no threat. Moreover, the offence caused emotional suffering to the
    complainant, his family and the community at large.

[77]

Finally,
    while it is true that the applicant may serve much of his sentence before the
    application for leave is determined, the public interest requires that the
    enforceability principle be given paramountcy given the stage of this
    proceeding; the fact that the applicant was an off-duty police officer and the
    complainant was seriously injured by him while retreating; and the trial
    judges finding that the applicant bears a high degree of moral responsibility,
    such that the community has a strong interest in enforceability.

[78]

For
    these reasons, I conclude that the applicant should be detained pending the
    determination of his application for leave to appeal to the Supreme Court of
    Canada.

[79]

If,
    however, the applicant does receive leave to appeal, that changed circumstance
    may well call for a reassessment of his bail status.

CONCLUSION

[80]

For
    these reasons, the application for bail pending appeal is refused without
    prejudice to a further application should leave to appeal to the Supreme Court
    be granted.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ching v.
    Pier 27 Toronto Inc., 2021 ONCA 551

DATE: 20210730

DOCKET: C67706

Pepall, Nordheimer and Thorburn JJ.A.

BETWEEN

Yong Kee
    Ching a.k.a. Richard Yong

and
    Margaret Ng Yu Xiu a.k.a. Margaret Ng

Plaintiffs (Appellants)

and

Pier 27 Toronto Inc.

Defendant (Respondent)

David N. Vaillancourt and Jacob Millar, for the
    appellants

Glenn R. Solomon, for the respondent

Heard: February 18, 2021 by video conference

On appeal from the judgment of Justice Mario D. Faieta of
    the Superior Court of Justice, dated October 18, 2019, with reasons reported at
    2019 ONSC 6073, 13 R.P.R. (6th) 306, and from the costs order, dated December
    9, 2019.

Pepall J.A.
:

A.

Introduction

[1]

The appellants appeal from a judgment dismissing their claim for damages
    arising from the breach of an agreement of purchase and sale of a condominium
    and their request for relief from forfeiture of their deposit. For the reasons
    that follow, I would dismiss the appeal.

B.

Facts

[2]

The appellants, Yong Kee Ching a.k.a. Richard Yong, and his wife,
    Margaret Ng Yu Xiu a.k.a. Margaret Ng, decided to move from Singapore to
    Canada following their retirement. The appellants moved to Canada in March 2011,
    having obtained permanent residency status in 2008. While still in Singapore,
    they attended numerous workshops offered by a real estate agent and ultimately
    bought 10 residential properties in British Columbia, Quebec, and Ontario. They
    sold four, maintain four for investment purposes, live in one in B.C., and one
    is in issue in these proceedings.

[3]

The agreement of purchase and sale (the Agreement) in this appeal was
    dated April 23, 2008 and was for a presidential suite located at 39 Queens
    Quay East in Toronto. The vendor was the respondent, Pier 27 Toronto Inc.
[1]
The appellants
    bought the unit for $1,347,000 and also acquired a parking spot for $37,500 and
    a locker for $4,500. The Agreement provided that time was of the essence. After
    signing the Agreement, they provided the respondent with a deposit of $134,700
    and subsequently paid additional sums for a total deposit of
$214,238.85.

[4]

The appellants obtained mortgage financing of $883,200 for the purchase
    from the Canadian Imperial Bank of Commerce.

[5]

The proposed Occupancy Date, also described as the Tentative Occupancy
    Date, as designated in the Agreement, was November 30, 2010, but it was not a
    firm date and simply represented an estimated completion date for the first
    unit in the Pier 27 project rather than the estimated occupancy date for all
    units including that of the appellants.

[6]

On June 9, 2010, the respondents solicitors advised the appellants that
    the respondent was extending the Tentative Occupancy Date for the appellants
    unit to October 18, 2012, a delay just short of 24 months.

[7]

After the appellants moved to Canada on March 15, 2011, they then tried
    to sell the unit or assign the Agreement and contacted a real estate agent for
    that purpose. In their correspondence to the agent, they noted: We would
    prefer to market it on assignment and before the interim or final closing where
    we need not have to make further payments to the unit. They stated that the
    final closing was scheduled for October 18, 2012 and that they had been told
    that there would most likely be a postponement. They listed the unit for sale
    for $1,699,000 on March 27, 2012.

[8]

In 2012, the appellants came to Toronto for the first time and visited
    the Pier 27 Project sales office where they sought assistance in selling
    the unit. They were told that the developer was not permitting assignments.

[9]

Meanwhile, the respondent established October 1, 2013 as the Confirmed Occupancy
    Date. However, this date was to come and go and the respondent ultimately
    extended the date on eight occasions to November 18, 2013, January 30,
    2014, February 14, 2014, March 21, 2014, May 2, 2014, June  27, 2014,
    July 30, 2014, and finally, to August 20, 2014. In the letters, the respondent
    stated that in all other respects, the terms of the Agreement remained unchanged,
    and time would remain of the essence. On each occasion, the respondent provided
    a reason for the new date ranging from construction delays, strikes and extreme
    weather. The appellants did not complain of any of the delays on receipt of the
    notices of extension.

[10]

In
    October 2013, the appellants came from Vancouver and met twice with the
    respondents décor consultant and selected finishes and upgrades for the unit.
    They signed an Order Form dated October 5, 2013 specifying their selections and
    agreeing to pay about $4,200 for the upgrades. The Form included an
    acknowledgement that January 30, 2014 was the Confirmed Occupancy Date subject
    to such further extensions required by the respondent under the Agreement and
    the
Ontario New Home Warranties Plan Act,
R.S.O. 1990, c. O.31
.

[11]

In
    November 2013, CIBC advised the appellants that the cancellation date for their
    mortgage approval was approaching and that updated information and the name of
    their solicitor were required. On December 9, 2013, Mr. Yong confirmed to CIBC
    that they had retained a lawyer, Boris Zayachkowski of the Minden Gross LLP firm,
    for the closing of the unit. He also advised that the builder had extended the
    scheduled Confirmed Occupancy Date a few times already and that provision
    should be made for possible future extensions of the February 14, 2014
    Occupancy Date. Mr. Yong testified that on December 23, 2013, CIBC cancelled
    the mortgage approval. The appellants unsuccessfully applied to other banks for
    mortgage financing.

[12]

Mr.
    Yong testified that with each letter of postponement of the Confirmed Occupancy
    Date, he nonetheless strongly believed that the deal was ongoing and that,
    until they contacted the lawyers, Miller Thomson LLP, he and his wife had to
    honour the Agreement. The last two letters of postponement dated May 16, 2014
    and June 27, 2014 for Confirmed Occupancy Dates of July 30, 2014 and August 20,
    2014, respectively, were sent to the appellants lawyer, Mr. Zayachkowski,
    and to the appellants. Both letters stated that, other than the Confirmed Occupancy
    Dates, in all other respects, the terms of the Agreement remained unchanged and
    time would remain of the essence.

[13]

The
    appellants continued to try and assign the Agreement by contacting many real
    estate agents. On November 29, 2013, Mr. Yong contacted one realtor, another in
    February 2014, another on June 25, 2014, and he would periodically contact
    Shelley Shapiro about assignments. She was described by Ms. Florian, the
    developers director of sales and marketing, as a sales agent who worked at the
    site and sold Pier 27 units, and by Mr. Yong, as the developers appointed
    realtor from Sothebys. The trial judge stated at para. 81 of his reasons that
    Mr. Yong testified that the respondent permitted the assignment somewhere
    near the closing date.
[2]

[14]

On
    July 3, 2014, the appellants received an email from Ms. Shapiro asking when
    they would be taking occupancy and advising that she had someone who she would
    be talking to about their suite. According to Mr. Yong, Ms. Shapiro advised
    that she might have two prospective purchasers, but they wished to view the
    unit before making an offer. He told Ms. Shapiro to arrange a viewing with the
    developer. The appellants offered to pay the respondents cleaning expenses
    associated with such access. They sought and were refused permission by the
    respondent for an inspection. Apparently, there were logistical and liability
    issues associated with permitting purchasers to walk through a partially
    completed 700-unit building.

[15]

On
    August 7, 2014, the appellants new lawyer, Odysseas
Papadimitriou
of Miller Thomson LLP, wrote to the respondents lawyer, Sheldon Spring of
    Goldman, Spring, Kichler & Sanders LLP, stating that he had been retained
    to review and respond to Mr. Springs June 27, 2014 correspondence. He noted
    the numerous extensions of the Confirmed Occupancy Date and that the
    respondents repeated delays and extensions suggested that it had failed to act
    in good faith and to set bona-fide closing date estimates. He asked the
    respondent on a without prejudice basis to advise whether it was agreeable to
    terminating the Agreement and returning all deposits. He stated that he
    believed it was incumbent on the respondent to permit rescission of the
    Agreement.

[16]

On
    August 19, 2014, Mr.
Spring
responded saying that
    the appellants did not have the right to terminate the Agreement.

[17]

The
    appellants did not take possession of the unit on August 20, 2014, and the
    transaction did not close. Mr. Yong said that without mortgage financing, he
    had no funds to pay and thus had no intention of taking occupation of the unit.
    As a result, he instructed Mr.
Zayachkowski
that he
    would seek a litigation lawyer to approach the developer for a return of the
    monies that they had paid to the respondent.

[18]

On
    August 29, 2014, Mr. Papadimitriou again wrote to Mr. Spring asking the respondent
    to reconsider their offer. In addition, he took the position that the
    respondent did not have the right to unilaterally extend the Confirmed Occupancy
    Date beyond the 24 months permitted by the Agreement, and that by failing to
    provide occupancy by November 30, 2012, the respondent had breached the
    Agreement thereby entitling the appellants to terminate the Agreement with a
    return of deposits. Absent an amicable resolution, the appellants lawyer had
    instructions to commence a claim against the respondent.

[19]

Mr.
    Spring responded on September 3, 2014. He stated that the appellants were in
    default of the Agreement as they had failed to complete the transaction on
    August 20, 2014 but as a courtesy and without prejudice, the respondent would
    permit the appellants to complete the transaction on September 8, 2014. He
    confirmed that the unit was ready for occupancy on August 20, 2014.

[20]

The
    appellants did not take possession on September 8, 2014. On September 9, Mr.
    Spring wrote to Mr. Papadimitriou advising that the Agreement was terminated
    due to the appellants failure to complete the transaction on August 20,
    2014.

[21]

The
    appellants did not tender on July 30, 2014, the date set in the May 16, 2014
    notice, or on August 20, 2014, the new date set in the June 27, 2014 notice.
    The respondent kept the deposit funds paid by the appellants.

[22]

The
    appellants brought an action for breach of the Agreement and sought return of
    their deposit of $214,238.85, the increase in value of the unit as of the date
    the Agreement was terminated, and punitive damages of $100,000 for dishonest
    performance of the Agreement. In the alternative, they sought relief from
    forfeiture of their deposit.

[23]

The
    respondent subsequently sold the unit in 2016. The parties agreed that $93,000
    represented the increase in value of the unit as of August 7, 2014.

C.

Trial Judges Decision

[24]

The
    trial judge found that the respondent breached the Agreement by extending the
    Confirmed Occupancy Date pursuant to notices dated May 16, 2013, November 1,
    2013, December 13, 2013, May 16, 2014 and June 27, 2014. The June 27, 2014
    notice established August 20, 2014 as the Confirmed Occupancy Date. He reasoned
    that there was nothing in the Agreement that permitted the respondent to
    arbitrarily extend the Confirmed Occupancy Date absent certain defined
    circumstances or a cause beyond the respondents control. Neither of these had
    arisen and he rejected the respondents submission that the causes of the
    extensions were beyond its control. The finding that the respondent breached
    the Agreement by extending the Confirmed Occupancy Date is not in issue on this
    appeal. He also found that the appellants terminated the Agreement on August 7, 2014.
    The parties do not take issue with this finding either. Furthermore, it is
    consistent with the parties agreement fixing the increase in value of the
    condominium as of the date of termination, namely August 7, 2014.

[25]

The
    trial judge concluded that the issue of whether the respondent was dishonest in
    its performance of the Agreement was moot but addressed it nonetheless, finding
    that the respondent had conducted itself honestly. He also made findings of
    credibility against the appellants, describing them as often being
    argumentative, overstated, and inconsistent.

[26]

The
    trial judge then considered whether the appellants had accepted the
    respondents repudiation of the Agreement. He set out the governing legal
    principles as described in
Ali v. O-Two Medical Technologies Inc.
,
    2013 ONCA 733, 118 O.R. (3d) 321,

at para. 24:

Once the counterparty shows its intention not
    to be bound by the contract, the innocent party has a choice. The innocent
    party may accept the breach and elect to sue immediately for damages  in which
    case, the innocent party must
clearly and
    unequivocally accept the repudiation to terminate the contract
:

Brown
, at para. 45. Alternatively,
    the innocent party may choose to treat the contract as subsisting, continue to
    press for performance and bring the action only when the promised performance
    fails to materialize; by choosing this option, however, the innocent party is
    also bound to accept performance if the repudiating party decides to carry out
    its obligations: S.M. Waddams,
The Law of Contracts
, 6th ed. (Toronto: Canada Law Book 2010), at para. 621.

[27]

He
    recognized that in the face of the respondents breach, the appellants could
    accept the breach and sue for damages, but
they had to
    clearly and unequivocally accept the repudiation to terminate the Agreement
.
    He found that they had not. Rather, they had continued to press for
    performance. He stated at para. 104 of his reasons:

However, the [appellants] continued to press
    for performance of the [Agreement] after
each
of the five extensions of
    the Confirmed Occupancy Date. Rather than treat the [Agreement] as at an end,
    the [appellants] attended the [respondent]s office to select finishes and
    upgrades for the Pier 27 Unit in October, 2013. Further, the [appellants]
    attempted to assign the Pier 27 Unit on many occasions through numerous real
    estate agents from November, 2013 until July, 2014. In July, 2014 the
    [appellants] sought and were refused permission by the [respondent] to have two
    prospective purchasers inspect the Pier 27 Unit. [Emphasis added.]

[28]

The
    trial judge was accordingly satisfied that the appellants had treated the
    Agreement as subsisting. Exercising his discretion, and considering all of the
    circumstances, he also declined to grant relief from forfeiture.

D.

Grounds of Appeal

[29]

The
    appellants raise four grounds of appeal. They submit that the trial judge
    erred:

(i)

in his repudiation analysis: (a) in considering irrelevant factors
    to conclude that the appellants had affirmed the Agreement, and (b) in failing
    to consider the appellants lack of knowledge of the facts and their legal
    rights to terminate the Agreement;

(ii)

in his quantification of damages;

(iii)

by failing to grant relief from forfeiture of the deposit; and

(iv)

in his assessment of costs.

[30]

The
    respondent contests the appellants submissions, arguing that it was only when
    it became clear that they could not assign the unit at a profit and it would be
    necessary to close the purchase that the appellants decided the respondent had
    repudiated the Agreement.

E.

Analysis

(1)

No
Acceptance of Respondents Repudiation

(a)

General
Principles

[31]

In
    considering the issue of repudiation, it is helpful to address the governing
    principles.

[32]

As
    noted by Cronk J.A. in
Brown v. Belleville (City)
,
2013
    ONCA 148,
114 O.R. (3d) 561, at para. 42, a repudiatory breach does not,
    in itself, terminate the contract. If the non-repudiating or innocent party
[3]
does not accept the
    repudiation, then the repudiation has no legal effect. In his text,
The Law
    of Contract in Canada
, 6th ed. (Toronto: Carswell, 2011), Professor Gerald
    Fridman explains as follows, at p. 595:

From the time that this kind of termination was recognized, it
    was accepted that there could be no such thing as
unilateral
repudiation. Just as the
    making of a contract requires the joint participation of both parties, an
    offeror and an acceptor, so the discharge of a contract, even where the
    discharge is by repudiation, in advance of the time for performance, also
    requires the conformity and acquiescence of
both
parties. [Emphasis in original.]

[33]

Accordingly,
    the consequences of a repudiation are stated to depend on the election made by
    the innocent party. If the innocent party accepts the repudiation, the contract
    is terminated (sometimes referred to as disaffirmation). Alternatively, the
    innocent party may treat the contract as subsisting (sometimes referred to as
    affirmation). See
Guarantee Co. of North America v. Gordon Capital Corp.
,
    [1999] 3 S.C.R. 423, at para. 40.

(i)

Disaffirmation (Acceptance of the Repudiation of a Contract)

[34]

In
Brown
, at para. 45, Cronk J.A. explained that:

[T]he election to disaffirm the contract must
    be clearly and unequivocally communicated to the repudiating party within a
    reasonable time. Communication of the election to disaffirm or terminate the
    contract may be accomplished directly, by either oral or written words, or may
    be inferred from the conduct of the innocent party in the particular
    circumstances of the case. [Citation omitted.]

[35]

Thus,
    the acceptance of the repudiation must be clearly and unequivocally communicated.
    That communication must be within a reasonable time. And, the communication may
    be express or inferred from conduct. The contract is terminated if the innocent
    party accepts the repudiation.

(ii)

Affirmation (Treating the Contract as Subsisting)

[36]

A
    failure to accept a repudiation does not necessarily mean that the innocent
    party has affirmed the contract. As with disaffirmation, the affirmation may be
    express or inferred from conduct. A party who presses for performance will be
    found to have affirmed the contract:
Ali
, at para. 24
.
The test is an objective one  what
    would a repudiating party reasonably understand from the words or conduct of
    the innocent party. For instance, in
Dosanjh v. Liang
, 2015 BCCA 18,
380 D.L.R. (4th) 137,
Mr. Dosanjhs lawyer sent a letter that
    Mr. Dosanjh was ready, willing and able to complete the transaction on the
    scheduled date. The British Columbia Court of Appeal noted that the letter was
    not consistent with an acceptance of repudiation, and the court concluded that
    Mr. Dosanjh had made an election to affirm the contract.

[37]

The
    court in
Dosanjh
also stated that [a] court will not find that an
    innocent party has affirmed a contract in the absence of
clear
evidence leading it to that
    conclusion: at para. 35 (emphasis added). This is the flip side of the rule
    that the election to disaffirm a contract must be clear and unequivocal.
    However, what then does a court do if the innocent party does not clearly
    disaffirm the contract and does not clearly affirm the contract? This question
    is particularly vexing given that, as discussed, a repudiation does not
    terminate the contract. In my view, rather than asking whether the evidence is
    clear, the proper question to ask is whether, in the circumstances of the
    case, a person in the shoes of the repudiating party reasonably would have
    understood that the innocent party was electing to keep the contract alive
    until the date of performance.

[38]

This
    approach is also consistent with the Supreme Courts commentary in
Gordon
    Capital
. In that case, the court suggests that something less than
    actively pressing for performance may amount to affirmation of the contract.
    At para. 40, the court notes that [i]f [the innocent party]
treats the contract as still being in full force and
    effect
, the contract remains in being for the future on both
    sides (emphasis added). I read this as saying that conduct consistent with
    the contract still being in force may amount to affirmation, whether or not it
    can be said that the innocent party actively pressed for performance.

(iii)

The Middle Way

[39]

An
    innocent party need not make its election immediately and may be given a
    reasonable period of time to decide whether to affirm the contract or accept
    the repudiation:
Dosanjh,
at para. 37;
Abraham v. Coblenz Holdings
    Ltd.
, 2013 BCCA 512, 53 B.C.L.R. (5th) 94, at para. 28; and
Canada Egg
    Products Ltd. v. Canadian Doughnut Co. Ltd.
, [1955] S.C.R. 398, at p. 407.
    As stated in
Dosanjh
, at para. 37, at least until that reasonable
    period of time has elapsed, a court should be slow to treat equivocal
    statements or acts as affirmations of the contract.

[40]

A leading text (Hugh Beale, ed.,
Chitty
    on Contracts
, 33rd ed. (London, UK:
    Sweet & Maxwell, 2018))
puts it this way, at para. 24-002:

There is a sense in which there is a middle way open to the
    innocent party in that he is given a period of time in which to make up his
    mind whether he is going to affirm the contract or terminate. This point was
    well-expressed by Rix L.J. in
Stocznia Gdanska SA v. Latvian Shipping Co.
    (No. 2)
when he stated: In my judgment, there is of course a middle
    ground between acceptance of repudiation and affirmation of the contract, and
    that is the period when the innocent party is making up his mind what to do. If
    he does nothing for too long, there may come a time when the law will treat him
    as having affirmed. If he maintains the contract in being for the moment, while
    reserving his right to treat it as repudiated if his contract partner persists
    in his repudiation, then he has not yet elected. As long as the contract
    remains alive, the innocent party runs the risk that a merely anticipatory
    repudiatory breach, a thing writ in water until acceptance, can be overtaken
    by another event which prejudices the innocent partys rights under the
    contractsuch as frustration or even his own breach. He also runs the risk, if
    that is the right word, that the party in repudiation will resume performance
    of the contract and thus end any continuing right in the innocent party to
    elect to accept the former repudiation as terminating the contract. [Citations
    omitted.]

[41]

Depending
    on the circumstances, inaction may be read either as a failure to elect or
    affirmation of the contract. For instance, in his text,
The Law of
    Contracts,
2nd ed. (Toronto: Irwin Law, 2012), Professor John D. McCamus
    states, at pp. 703-4:

[A] mere failure to communicate an election to disaffirm to the
    repudiating party will not preclude a subsequent election to disaffirm unless
    the passage of time has resulted in significant prejudice to the repudiating
    party or, in the circumstances, the silence of the innocent party is reasonably
    interpreted as evidence of a decision to affirm the agreement.

(b)

Application of Principles

[42]

As
    mentioned, the trial judge found that the respondent breached the Agreement by
    extending the Confirmed Occupancy Date. The last breach occurred on June 27,
    2014, which had extended the Confirmed Occupancy Date from July 30, 2014
    to August 20, 2014. He also found that the appellants treated the Agreement as
    subsisting and terminated it on August 7, 2014. There is no suggestion that the
    appellants accepted the repudiation at any time prior to August 7, 2014.

[43]

This
    appeal turns on whether the trial judge erred in finding that the appellants
    affirmed the Agreement, or put differently, treated it as subsisting.

[44]

At
    the time of the breach by the respondent on June 27, 2014, the appellants had various
    alternatives available to them including:

(i)

treating
    the Agreement as subsisting and insisting on closing on July 30, 2014
    or implicitly or expressly agreeing to close on the new closing date of August
    20, 2014;

(ii)

accepting
    the repudiation which would put the Agreement at an end and would release the
    appellants from closing on July 30, 2014; or

(iii)

doing
    nothing and taking a reasonable time to consider their options. However, as
    stated in
Chitty,
if the innocent parties do nothing for too long, the
    law may treat them as having affirmed the contract.

[45]

The
    appellants submit that the trial judge erred in treating the individual
    repudiations cumulatively rather than separately. As a result, he conflated the
    appellants conduct to ascertain whether they had pressed for performance when
    instead, he should have relied on evidence of their conduct following the last
    repudiation by the respondent.

[46]

I
    do not agree with this submission. It is the case that each time the respondent
    committed an act that amounted to a repudiation, the appellants were entitled
    to affirm the Agreement and treat it as subsisting or accept the repudiation.
    Just because they had previously affirmed the Agreement following the
    respondents acts of repudiation did not mean that they were disentitled from
    accepting the latest repudiation on June 27, 2014: see
Dosanjh
, at
    para. 42.

[47]

However,
    the trial judges discussion of the appellants conduct before and after June
    27, 2014 must be considered in context. Before the trial judge, the appellants
    argued that the Agreement had been breached on each of the occasions that the
    trial judge addressed, that is, with each notice of extension.
This was for the most part consistent with their fresh as
    amended statement of claim.
He accordingly commenced his analysis of this
    issue by asking whether any of the respondents extensions of the Confirmed Occupancy
    Date constituted a breach of the Agreement. He then proceeded to discuss the
    appellants conduct that succeeded each of the breaches. I see nothing wrong in
    this approach and it explains why he addressed all of the notices of extension
    and not just that of June 27, 2014.

[48]

Second,
    he did not treat the repudiations cumulatively nor did he conflate the
    appellants conduct. Rather, he addressed each of the repudiations and
    culminated with a discussion of the final repudiation. This is evident from the
    language he used at para. 104 of his reasons: the appellants continued to
    press for performance of the [Agreement] after
each
of
the five extensions of the
    Confirmed Occupancy Date (emphasis added). It is also evident from his
    reliance on post-June 27, 2014 conduct to sustain his conclusion. This conduct
    included attempting to assign the unit in July 2014 and seeking and being
    refused permission from the respondent to have two prospective purchasers
    inspect the unit. Although not relied upon by the trial judge, the appellants
    also offered to pay for the cleaning of the unit following the inspection and
    Mr. Yong testified that they were open to realtors at that time. Once affirmed,
    there was no additional breach by the respondent that gave rise to an election,
    and therefore the appellants were precluded from relying on their lawyers
    August 7, 2014 letter as constituting clear and unequivocal communication of
    acceptance of the respondents June 27, 2014 repudiation.

[49]

Third,
    none of the appellants conduct is consistent with acceptance of the
    respondents repudiation but is consistent with affirmation of the Agreement.
    Certainly, there was no clear and unequivocal communication of termination
    until at best, August 7, 2014. Even when the appellants counsel wrote the
    August 7, 2014 letter, the language sought permission to rescind the
    Agreement. Moreover, a disaffirmation of the Agreement must be communicated
    within a reasonable time. The last notice of extension of the Confirmed Occupancy
    Date was sent on June 27, 2014, but the correspondence from the
    appellants lawyer terminating the Agreement was sent on August 7, 2014, a week
    after the penultimate closing date of July 30, 2014. By August 7, 2014, the
    appellants conduct was consistent with an affirmation and an agreement to close
    on August 20, 2014. Quite apart from the affirmatory conduct relied upon
    by the trial judge, additionally, the appellants did nothing for too long and
    the trial judge legitimately treated them as having affirmed the Agreement.

[50]

It
    was open to the trial judge to find that the appellants continued to press for
    performance of the Agreement after the June 27, 2014 extension of the Confirmed
    Occupancy Date. Based on the evidence before him, the trial judge made the
    requisite finding of conduct post June 27, 2014 and it was open to him to look
    to the appellants previous conduct to assist in interpreting their later
    behaviour, recognizing as he did that each extension of the Confirmed Occupancy
    Date required affirmation.

[51]

The
    trial judge identified and applied the correct legal test and made no palpable
    and overriding errors in finding that the appellants treated the Agreement as
    subsisting notwithstanding the respondents repudiation of the Agreement. I
    would dismiss this ground of appeal.

[52]

I
    would also add that, though not argued by the parties, even if there was no
    election to affirm and no election to disaffirm, by default, at law, there
    would be no election. Accordingly, on the July 30, 2014, closing date, the
    Agreement continued. Neither party was ready, willing or able to close on that
    date. As such, the rule in
King v. Urban & Country Transport Ltd.
(1973), 1 O.R. (2d) 449 (C.A.) was applicable. This rule was explained in
Domicile
    Developments Inc. v. MacTavish
(1999), 45 O.R. (3d) 302 (C.A.) as follows:

In
King v. Urban
the purchaser was not in a position
    to close on the closing date; but the vendor was also in default and not
    entitled to rely on the time of the essence provision in the contract. Arnup
    J.A. resolved the stalemate by applying two propositions:

1. When time is of the essence and neither party is ready to
    close on the agreed date the agreement remains in effect.

2. Either party may reinstate time of the essence by setting
    a new date for closing and providing reasonable notice to the other party.
    [Footnote omitted.]

[53]

In
    the case under appeal, the respondent proposed August 20, 2014, as the new date
    but despite reasonable notice, the appellants did not close. The appellants
    attempt to terminate the Agreement on August 7, 2014 was ineffective because
    there was no repudiation in play that could be accepted at that time. Thus,
    even if there were no affirmation by the appellants, the result would be the
    same.

[54]

In
    conclusion, on any analysis, the first prong of the appellants ground of appeal
    based on repudiation must fail.

(2)

Alleged Lack of Knowledge

[55]

The
    appellants also submit that the trial judge erred in failing to consider that
    the appellants had insufficient knowledge to make an election. They argue that for
    an effective affirmation, the innocent party must have knowledge of both the
    facts and the legal right to choose between affirmation and termination of an
    agreement in the face of a repudiation. They submit that the appellants had
    neither.

[56]

For
    the following reasons, I would not give effect to this ground of appeal.

[57]

First,
    I note that this issue was not referenced in the appellants pleading which may
    explain why it was not expressly addressed by the trial judge.

[58]

Second,
    and more substantively, there can be no question that the appellants had
    knowledge of the underlying facts. All of the extension letters, which clearly described
    the cause and effect of each of the extensions, were sent to the appellants.
    Moreover, it is evident from the appellants evidence at trial that they were
    familiar with the factual state of affairs. As the closing was quickly
    approaching, they were attempting to assign the Agreement and were still open
    to all realtors. Mr. Yong testified that he never told the appellants real
    estate lawyer, Mr. Zayachkowski, how unhappy he was, to get him out, or to get
    his money back. It bears repeating that the appellants were not ingenue real
    estate purchasers. Unquestionably, the appellants had knowledge of the facts
    giving rise to the breaches described in Mr. Papadimitrious letter of August
    7, 2014.

[59]

The appellants also allege that they had no knowledge of
    their legal rights and in support, particularly rely on
Peyman v. Lanjani
,
    [1984] 3 All E.R. 703 (C.A.).

[60]

As
    noted by this court in
Samson v. Lockwood
, [1998] O.J. No. 2471, the
    facts of
Peyman
were unusual in that the plaintiffs lawyer was a party
    to the misrepresentations that grounded the plaintiffs legal rights. In
    addition, the court in
Peyman
relied on
Coastal Estates Pty Ltd.
    v. Melevende
, [1965] V.R. 433 (Austl. (Vic.) (S.C.)), which involved a
    case of fraudulent misrepresentation. In
Samson
, Rosenberg J.A. wrote,
    at para. 51:

In many cases, especially cases of fraudulent
    misrepresentation, it may be that proof of knowledge of the legal right to
    rescind should be a prerequisite to affirmation. However, I cannot accept that
    proof of knowledge of legal rights was necessary in the circumstances of this
    case. By August 1989, Mr. Lockwood was aware of the facts that gave him
    the right to rescind. He had access to any number of lawyers and his own real
    estate agent. He chose not to seek their opinion or advice.

[61]

In
    the case under appeal, the trial judge found that there was no basis in the
    evidence for suggesting that the [respondent] did not conduct itself honestly
    throughout this transaction, and he also found that the respondent believed
    that its extensions of the Confirmed Occupancy Dates were made for reasons
    permitted by the Agreement and the Act. As such, there is no room for the
    appellants to assert any fraudulent misrepresentations.

[62]

Moreover,
    the appellants had access to lawyers and indeed other real estate professionals
    throughout the real estate transaction. By December 9, 2013, they had retained
    Mr. Zayachkowski to act for them and his continued involvement is evident from
    the letters sent to him by the respondent advising of the last two extensions
    of the Confirmed Occupancy Date. Mr. Yong advised Mr. Zayachkowski that
    they were going to seek the assistance of a litigation lawyer to approach the
    developer for a return of the monies they had paid to the respondent and this
    resulted in the August 7, 2014 letter from Mr. Papadimitriou. The appellants
    did not call either lawyer as witnesses at trial.

[63]

As
    in
Samson
, the appellants had the opportunity to ascertain their legal
    rights from professional advisors but, to the extent they may not have had
    knowledge of their legal rights, exhibited total recklessness and indifference
    to the need to inquire into their legal rights. This is so particularly given
    that they had access to their real estate lawyer, Mr. Zayachkowski. Although in
Samson
,
Rosenberg J.A. left open the issue of whether
    affirmation by conduct and something less than recklessness would deprive a
    party of a right to rescind, the principles he articulated are applicable to
    the facts of this case.

[64]

I
    conclude that the trial judge did not err in determining that the appellants
    had affirmed the Agreement. The appellants had knowledge of the underlying
    facts and their affirmation of the Agreement is not rendered ineffective as a
    result of any other legal infirmity.

[65]

For
    these reasons, I would dismiss this component of the appellants first ground
    of appeal. It follows that it is unnecessary to address damages. However, the
    appellants claim relief from forfeiture in the alternative to which I will now
    turn.

(3)

Relief from Forfeiture

[66]

Under
    s. 21 of the Agreement, the deposits paid by the appellants were forfeited to
    the respondent. Among other things, s. 21 provided that the deposits were
    expressly deemed to be deposit monies only and not partial payments.

[67]

In
Azzarello v. Shawqi
, 2019 ONCA 820, 439 D.L.R. (4th) 127, at para. 45,
    leave to appeal refused, [2019] S.C.C.A. No. 521, Feldman J.A. briefly summarized
    the law relating to repudiation and real estate deposits stating:

It is well-established by case law that when a purchaser
    repudiates the agreement and fails to close the transaction, the deposit is
    forfeited, without proof of any damage suffered by the vendor: see
Tang v.
    Zhang
, 2013 BCCA 52, 359 D.L.R. (4th) 104, at para. 30, approved by this
    court in
Redstone Enterprises Ltd., v. Simple Technology Inc.
, 2017
    ONCA 282, 137 O.R. (3d) 374. Where the vendor suffers no loss, the vendor may
    nevertheless retain the deposit, subject to relief from forfeiture.

[68]

Under
    s. 98 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, a court may
    grant relief against penalties and forfeitures, on such terms as to
    compensation or otherwise as are considered just.

[69]

In
    his reasons, the trial judge described the factors to be considered for the
    purposes of relief from forfeiture as: whether the conduct of the party seeking
    relief from forfeiture was reasonable, whether the object of the right of
    forfeiture was to secure the payment of money, and whether there was a
    substantial disparity between the value of the property forfeited and the
    damage caused by the breach. The property forfeited in this case is of course
    the deposit.

[70]

In
    describing the factors, the trial judge relied on
Scicluna v. Solstice Two
    Limited
, 2018 ONCA 176, 421 D.L.R. (4th) 675, which drew on
Saskatchewan
    River Bungalows Ltd. v. Maritime Life Assurance Co.
, [1994] 2 S.C.R. 490,
    an insurance case.

[71]

Other
    authorities that have examined relief from forfeiture in the context of real
    estate deposits have applied an arguably different test. See for example:
Varajao
    v. Azish
, 2015 ONCA 218;
Redstone Enterprises Ltd. v. Simple
    Technology Inc.
, 2017 ONCA 282, 137 O.R. (3d) 374; and
Azzarello
.
    This test for relief from forfeiture, which is based on the English Court of
    Appeal decision of
Stockloser v. Johnson
, [1954] 1 Q.B. 476 (C.A.
    (Eng.)), poses two questions: (i) is the forfeited deposit out of all
    proportion to the damages suffered; and (ii) would it be unconscionable for the
    vendor to retain the deposit?

[72]

In
Redstone
, this court examined both questions. Lauwers J.A., writing
    for himself, Sharpe and Hourigan JJ.A., referred with approval to the
    five-person panel in
Tang v. Zhang
, 2013 BCCA 52, 359 D.L.R. (4th) 104.
    In
Tang
, the vendor had been able to resell a $2 million property for
    more than the original purchase price and had suffered no loss. Citing the
    principles that underlie a deposit, the British Columbia Court of Appeal
    overturned the relief from forfeiture of the $100,000 deposit granted by the
    trial judge. One such principle identified in
Tang
, and approved by
    Lauwers J.A., was that:

A true deposit is an ancient invention of the law designed to
    motivate contracting parties to carry through with their bargains. Consistent
    with its purpose, a deposit is generally forfeited by a buyer who repudiates
    the contract, and is not dependant on proof of damages by the other party. If
    the contract is performed, the deposit is applied to the purchase price.

[73]

Following
    upon that decision, and mindful of the recognition of the advantages of
    allowing parties to define for themselves the consequences of breach and the
    need for contractual certainty, in
Redstone
, Lauwers J.A. reasoned
    that the fact that the vendor suffered no damages did not in itself render the
    forfeiture of the entire deposit of $750,000 unconscionable. He stated at para.
    25 that the finding of unconscionability must be an exceptional one, strongly
    compelled by the facts of the case and noted, at para. 30, that the list of the
    indicia of unconscionability is never closed. Ultimately, this court concluded
    that the vendor was entitled to retain the full deposit paid by the purchaser
    in the face of no evidence of any damages.

[74]

As
    neither party to this appeal challenged the trial judges description of the
    applicable test, it is unnecessary to determine which test applies. The
    resolution of that issue is best left for another time and another case where
    the subject is fully argued and briefed.

[75]

On
    this appeal, the appellants make two submissions. First, they submit that the trial
    judge failed to consider his own finding that the respondent repudiated the
    Agreement on five separate occasions. I accept that the trial judge did not
    expressly address his earlier finding in this regard. However, the trial judge
    did describe the appellants argument to this effect and, that being so, I do
    not see any reason to conclude that he did not take that finding into account
    in reaching his conclusion on this issue. I also note that the trial judge did
    say that he was considering all the circumstances in reaching his conclusion
    and his summary of the appellants position preceded this statement by a mere
    three paragraphs.

[76]

Second,
    the appellants say that by improperly concluding that almost all of the amount
    of the appellants deposit covered the damages suffered by the respondent, he
    erred in not granting relief from forfeiture.

[77]

I
    do not agree.

[78]

As the Supreme Court stated in
Saskatchewan River
, relief from
    forfeiture is an equitable and discretionary remedy.
Absent a legal or
    palpable and overriding error, it is not for this court to substitute its
    discretion for that of the trial judge. Based on the record before him, he
    reasonably concluded that the respondent incurred expenses of approximately
    $227,544.24 consequent on the appellants breach.
[4]
The trial judge considered these expenses, the quantum of the deposit, and the
    increased proceeds of disposition received by the respondent on the resale of
    the property but chose not to exercise his discretion in favour of the
    appellants. Relief from forfeiture is not simply a mathematical formula; it is
    an exercise of discretion. Although the respondent ultimately may have gained
    approximately $100,000 from the transaction, I am unable to conclude that the
    trial judges refusal to grant relief from forfeiture of the appellants
    deposit was infected with error.

[79]

I
    would also add that the retention of the deposit by the respondent vendor in
    this case is consistent with the objective of a deposit and the prospect of its
    forfeiture as described in
Benedetto v. 2453912 Ontario Inc.
, 2019
    ONCA 149, 86 B.L.R. (5th) 1, at para. 14: a forfeited deposit does not
    constitute damages for breach of contract, but stands as security for the
    performance of the contract. See also
Benedetto
, at paras. 6-7;
Tang
,
    at paras. 20-24, 30.

[80]

However,
    I would add two important caveats to my conclusion on the issue of relief from
    forfeiture. First, it is of significance that the appellants did not challenge
    the quantum of the damages that the respondent said arose from the appellants failure
    to close the transaction nor did they challenge any of the constituent elements
    of the respondents damages. In other words, the appellants did not argue that
    any of these elements should not be considered as proper heads of damage in
    light of the respondents prior breaches.

[81]

Second,
    because the decision on relief from forfeiture is an inherently discretionary
    one based on the specific facts of a particular case, developers who act in a
    manner, such as the respondent did here, by which they do not honour their
    contractual obligations, should not expect that such a favourable outcome will
    necessarily be the result in future cases.

[82]

For
    these reasons, I would not interfere with the trial judges refusal to grant
    relief from forfeiture.

(4)

Costs

[83]

The
    appellants argue that particularly if the respondent is permitted to retain the
    deposit, the costs award of $68,713.62 inclusive of disbursements and tax in
    favour of the respondent should be replaced with no order for costs. In their
    submissions, the appellants rely upon this courts decision in
Payer v.
    Peerless Plating Rack Co.
(1998), 37 O.R. (3d) 781 (C.A.) and argue that
    the respondent obtained a windfall which should have been reflected in the
    costs award.

[84]

Absent
    an error in principle or an award that is plainly wrong, a trial judges
    exercise of discretion in the award of costs is entitled to deference:
Hamilton
    v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

[85]

The
    oral costs reasons given by the trial judge were summary in nature and mainly focused
    on the respondents request for substantial indemnity costs which he properly
    dismissed. He touched upon
Payer
but considered it to be inapplicable
    because in the context of his forfeiture analysis, he had found that the
    respondent had not obtained a windfall.

[86]

Payer

involved claims by an estate against various parties. Due to an inadvertent
    failure to cancel an insurance policy, the company in which the deceased had formerly
    held an interest, but which had no insurable interest, received a windfall upon
    the deceaseds death. Even though the company was successful on the appeal, this
    court concluded that it would be inappropriate for it and the deceaseds former
    business partner to recover any costs on the appeal or the trial because they
    had received a windfall.

[87]

In
    the case under appeal, the conclusion that the respondent did not receive a
    windfall sufficient to invoke relief from forfeiture is not determinative of
    the costs award, and the trial judge erred in principle in treating the finding
    as such. Although not disproportionate or unconscionable for the purposes of
    forfeiture, based on the
Payer
decision, the $100,000 ought not to
    have been disregarded simply due to its characterization in the forfeiture
    analysis. This was an error in principle.

[88]

Although
    the respondent breached the Agreement on five occasions, the appellants lost
    their mortgage approval as a result, and the respondent ultimately earned a net
    profit of approximately $100,000, the respondent was successful in the action
    and arguably should be entitled to its costs. That said, even though this court
    is extremely reluctant to interfere with a trial judges award of costs, in the
    unusual circumstances of this case where the respondent ultimately gained
    approximately $100,000, it is fair and reasonable for the parties to bear their
    own costs of both the trial and the appeal and I would so order.

F.

Disposition

[89]

For
    these reasons, I would dismiss the appeal, grant leave to the appellants to
    appeal the costs award, vacate the costs award of $68,713.62 in favour of the
    respondent, and order the parties to bear their own costs of the trial and the
    appeal.

Released: July 30, 2021 S.E.P.

S.E. Pepall J.A.

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

I agree. Thorburn J.A.

[1]

The developers were Cityzen Development Group and Fernbrook
    Homes.

[2]

In fact, Mr. Yong testified that the developer granted the
    assignment.

[3]

Rather than repeating the
    non-repudiating or innocent party formulation, I will use the words innocent
    party throughout.

[4]
The trial judge calculated the respondents costs as including occupancy fees
    ($82,686.35), a staging fee ($55,223.10), the listing commission ($12,594), and
    the real estate commission on sale ($121,400). To avoid double counting, he
    deducted a notional commission of $38,485.71 plus taxes, which was due to the
    brokerage firm, and a listing commission of $5,873.50 to account for the
    respondents expenses had the appellants closed in August 2014.


COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA
    550

DATE: 20210729

DOCKET: M52692 (C68080)

Fairburn A.C.J.O., Roberts and Thorburn JJ.A.

BETWEEN

Larry
    Philip Fontaine in his personal capacity and in his capacity as the Executor of
    the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq,

Percy Archie, Charles
    Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John
    Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael
    Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy
    Doctor, James Fontaine in his personal capacity and in his capacity as the
    Executor of the estate of

Agnes Mary Fontaine,
    deceased, Vincent Bradley Fontaine,

Dana Eva Marie
    Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa
    Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley Thomas
    Nepetaypo, Flora Northwest,

Norman
    Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis
    Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian
    Yellowknee

Plaintiffs

and

The
    Attorney General of Canada
, The Presbyterian Church in Canada,

The General Synod of
    the Anglican Church of Canada, The United Church of Canada, The Board of Home
    Missions of the United Church of Canada,

The Womens
    Missionary Society of the Presbyterian Church, The Baptist Church in Canada,
    Board of Home Missions and Social Services of the Presbyterian Church in Bay,
    The Canada Impact North Ministries of the Company for the Propagation of the
    Gospel in New England (also known as The New England Company), The Diocese of
    Saskatchewan, The Diocese of the Synod of Cariboo, The Foreign Mission of the
    Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron,
    The Methodist Church of Canada, The Missionary Society of the Anglican Church
    of Canada,

The Missionary
    Society of the Methodist Church of Canada (also known as the Methodist
    Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma,
    The Synod of the Anglican Church of the Diocese of Quebec, The Synod of the
    Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod
    of the Diocese of British Columbia, The Synod of the Diocese of Calgary, The
    Synod of the Diocese of Keewatin, The Synod of the Diocese of QuAppelle, The
    Synod of the Diocese of New Westminster,

The
    Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in
    Canada, The Board of Home Missions and Social Service of the Presbyterian
    Church of Canada, The Womens Missionary Society of the United Church of
    Canada, Sisters of Charity, a Body Corporate also known as Sisters of Charity
    of St. Vincent de Paul, Halifax, also known as Sisters of Charity Halifax,
    Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre
    Dame-Auxiliatrice, Les Soeurs de St. François dAssise, Institut des Soeurs du
    Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyacinthe, Les Soeurs de
    Jésus-Marie, Les Soeurs de lAssomption de la Sainte Vierge, Les Soeurs de
    lAssomption de la Sainte Vierge de lAlberta, Les Soeurs de la Charité de
    St.-Hyacinthe, Les Oeuvres Oblates de lOntario, Les Résidences Oblates du
    Québec, La Corporation Épiscopale Catholique Romaine de la Baie James (The
    Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of
    Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of
    Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu
    de Nicolet, The Grey Nuns of Manitoba Inc.  Les Soeurs Grises du Manitoba
    Inc., La Corporation Épiscopale Catholique Romaine de la Baie dHudson The
    Roman Catholic Episcopal Corporation of Hudsons Bay, Missionary Oblates
    Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The
    Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The
    Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates
    of Mary Immaculate  St. Peters Province, The Sisters of Saint Ann, Sisters of
    Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon,
    Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole,
    The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson,
    Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of
    British Columbia, The Sisters of Charity of Providence of Western Canada, La
    Corporation Épiscopale Catholique Romaine de Grouard, Roman Catholic Episcopal
    Corporation of Keewatin, La Corporation Archiépiscopale Catholique Romaine de
    St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface  The Missionary
    Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of
    Winnipeg, La Corporation Épiscopale Catholique Romaine de Prince Albert, The
    Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles
    CA, Archdiocese of Vancouver  The Roman Catholic Archbishop of Vancouver,
    Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of
    Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince
    Rupert, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt.
    Angel Abbey Inc.

Defendants (
Respondent
)

Joanna Birenbaum, for the appellant National Centre for
    Truth and Reconciliation

Catherine A. Coughlan and Brent Thompson, for
    the respondent Attorney General of Canada

Stuart Wuttke and Jeremy Kolodziej, for the respondent
    Assembly of First Nations

P. Jonathan Faulds, Q.C., for the respondent National Administration
    Committee

Heard: in writing

On appeal from the order of
    Justice Paul M. Perell of the Superior Court of Justice, dated January 20,
    2020, with reasons reported at 2020 ONSC 366.

REASONS FOR DECISION

[1]

By reasons released on April
    1, 2021, this court allowed in part the appeal by the National Centre for Truth
    and Reconciliation (NCTR) of the January 20, 2020 order of the Eastern
    Administrative Judge, Paul M. Perell J., regarding the disposition of proposed
    statistical reports and records arising out of the Indian Residential Schools
    Settlement Agreement (IRSSA) and the Independent Assessment Process (IAP). Specifically,
    this court ordered that the proposed statistical reports (Static Reports) be
    prepared by the Chief Adjudicator and produced under seal to Perell J. for the
    purpose of addressing issues of confidentiality, reliability and archival
    utility.

[2]

As set out in paragraph 86
    of this courts reasons, given that the Chief Adjudicators mandate was
    scheduled for completion on March 31, 2021, it was recognized that further
    direction may be required concerning next steps:

Accordingly, we order that any proposed Static Reports be
    produced in final form by the Chief Adjudicator, placed under seal, and
    submitted to the Supervising Judge prior to the rehearing. If the Chief
    Adjudicator is unable to produce the proposed Static Reports prior to the
    closure of the Secretariat, the parties may seek direction from this court.

[3]

The Chief Adjudicator was
    not able to prepare the Static Reports because of the completion of his
    mandate. As a result, the NCTR brought a motion for directions to this court asking
    that an independent third-party statistical expert be appointed to prepare the Static
    Reports. Canada opposes the NCTRs motion; it takes the position that Canada
    should prepare the Static Reports.

[4]

During case management of
    the NCTRs motion for directions, a preliminary issue arose as to whether the
    motion should be heard by this court or remitted to Perell J. for management
    and determination. Written submissions on this preliminary issue were requested
    and delivered.

[5]

The NCTR, supported by the
    Assembly of First Nations (AFN) and the National Administration Committee
    (NAC), submits that for reasons of efficiency, consistency with this courts
    April 1 order, and judicial independence and integrity, this court should hear
    the NCTRs motion for directions in order to give effect to its order that the Static
    Reports be produced. The NCTR contends that the judge who will adjudicate on
    the reports, once they are produced, should not also have been involved in
    determining how the reports should be prepared.

[6]

Canada disagrees and
    maintains that the motion for directions to determine who should prepare the Static
    Reports is more properly brought before Perell J. who, as the Eastern
    Administrative Judge, has jurisdiction to deal with IRSSA matters, has already dealt
    with the other motions concerning the disposition of the records related to the
    IRSSA and IAP, and to whom this court remitted the Static Reports issue by its
    April 1, 2021 order. It would be inappropriate and inefficient for this court
    to have an ongoing supervisory role over these issues.

[7]

There is nothing in
    paragraph 86 of this courts reasons that seizes this court with determining
    who should prepare the Static Reports. While the parties were invited to seek
    directions from this court if the Chief Adjudicator was unable to produce the
    Static Reports, that is precisely what the court is now engaged in, providing
    directions on how to move forward. We agree with Canadas position.

[8]

It is not appropriate or
    desirable that we determine this issue. It may have been a different matter if
    the parties had come to an agreement regarding the appointment of the person
    who will prepare the Static Reports and were simply seeking a consent order. However,
    as Mr. Faulds quite rightly pointed out in his submissions for the NAC, the
    proceedings concerning the Static Reports have been contentious. They continue
    to be so. The adjudication of the issue of who should prepare the Static Reports
    will require an exchange of affidavit and other materials and, possibly,
    cross-examinations. It is therefore a more appropriate and expedient use of
    judicial resources for the issue to be managed, litigated and determined in the
    Superior Court of Justice.

[9]

We are also of the view that
    the matter should be remitted to Perell J. In 2013, Perell J. was appointed the
    Eastern Administrative Judge to implement and administer the IRSSA and make
    directions regarding the disposition of the IAP documents. He has therefore
    gained extensive knowledge and experience in dealing with all matters arising
    out of the IRSSA and IAP for Ontario. Accordingly, Perell J. is well positioned
    to determine this issue. This is particularly so given that this court has already
    remitted to him the related issue of addressing the questions of the
    confidentiality, reliability and archival utility of the Static Reports. Therefore,
    he is best placed to determine the issue of who should prepare the Static Reports.

[10]

Accordingly, we order that
    the NCTRs motion for directions be remitted to Perell J. for case management
    and adjudication.

[11]

In the circumstances, we make
    no order as to costs.

Fairburn A.C.J.O.

L.B. Roberts J.A.

J.A. Thorburn J.A.