COURT OF APPEAL FOR ONTARIO

CITATION: Canada (Attorney General) v. Lewis, 2015 ONCA 379

DATE: 20150529

DOCKET: C59665

Simmons, Juriansz and van Rensburg JJ.A.

BETWEEN

Attorney General of Canada

Appellant

and

Samantha Claire Lewis, Souphin Inlakhana, Juliet
    Ifeika, Rosa Mukandori, Nazma Murtaza, Debbie Craddock, Desiree Solleveld,
    Patricia Longley, Candace Branche and Carol Williams

Respondents

Michael Sims and Jim Kapches, for the appellant

Brian A.
    Callender, for the respondents

Heard: March 10, 2015

On appeal from the order of Justice P.B. Hambly of the
    Superior Court of Justice, dated October 3, 2014, with reasons reported at 2014
    ONSC 6394.

Juriansz J.A.:

[1]

This appeal raises a single question of law: are offenders who committed
    offences before, but were convicted and sentenced after, the enactment of the
Abolition
    of Early Parole Act
, S.C. 2011, c. 11 (
AEPA
) entitled to the accelerated
    parole review (APR) regime previously in place under the
Corrections and
    Conditional Release Act
, S.C. 1992, c. 20 (
CCRA
) by virtue of
    s. 11(i) of the
Charter
?

[2]

Prior to March 28, 2011, ss. 119.1 and 125-126.1 of the
CCRA
provided
    for APR for certain non-violent offenders serving a first sentence of
    imprisonment in a federal penitentiary. Under the APR regime such offenders were
    presumptively entitled to day parole after serving the greater of six months or
    one-sixth of their sentence. Under the standard parole provisions of the
CCRA
,
    an offender sentenced to the penitentiary would be eligible for day parole six
    months before the full parole eligibility date. The APR regime also was less
    demanding procedurally than the standard parole procedure. These differences do
    not need to be discussed separately as the respondents application claimed
    that the denial of eligibility to the entire APR regime infringed their s.
    11(i) rights, and the appeal was argued on that basis.

[3]

The provisions of the
CCRA
that provided for APR were repealed
    with the coming into force of the
AEPA
on March 28, 2011
,
effectively

abolishing the accelerated parole regime. Under the
CCRA
as it
    now reads, the standard parole provisions apply to all offenders sentenced to a
    penitentiary.

[4]

Section 10(1) of the
AEPA
made the abolition of APR apply retrospectively.
    Section 10(1) provides:

Subject to subsection (2), the accelerated parole
    review process set out in sections 125 to 126.1 of the
Corrections and Conditional
    Release Act
, as those sections read on the day before the day
    on which section 5 comes into force, does not apply, as of that day, to
    offenders who were sentenced, committed or transferred to penitentiary, whether
    the sentencing, committal or transfer occurs before, on or after the day of
    that coming into force.

Offenders are not eligible for the APR process even if
    they were sentenced, committed or transferred to penitentiary before the
AEPA
came into force.

[5]

The respondents in this

appeal are ten women who are serving
    sentences at the Grand Valley Institution, a federal penitentiary located in
    the City of Kitchener. They are all non-violent offenders sentenced to a first
    penitentiary term.

[6]

With one exception, the respondents committed their offences before the
AEPA
came into effect and were sentenced afterwards. One respondent, Debbie
    Craddock, was sentenced for offences committed before and after the repeal of
    the APR provisions.

[7]

After the enactment of the
AEPA
, the respondents, relying on s.
    11(i) of the
Charter
, brought an application in the Superior Court for
    a declaration that they are eligible for APR at one-sixth of their sentences.

[8]

Section 11(i) guarantees that any person charged with an offence has the
    right if found guilty of the offence and if the punishment for the offence has
    been varied between the time of commission and the time of sentencing, to the
    benefit of the lesser punishment.

[9]

Thus, the question before the application judge was whether the
    respondents punishment was varied by the abolition of the APR process. This is
    a pure question of law.

[10]

The
    application judge answered this question in the affirmative. For the reasons
    that follow, I would agree with this conclusion and dismiss the appeal.

A.

Discussion

Section 10(1) of the
AEPA
and Section 11(i) of the
Charter

[11]

The
    application judges conclusion that the respondents punishment was varied by
    the abolition of the APR process was dependent upon his finding that the denial
    of day parole was punishment within the meaning of s. 11(i) of the
Charter
.
    It followed that the respondents punishment was increased between the date of
    their offences and the date they were sentenced. Consequently, by virtue of s.
    11(i), they were entitled to the benefit of the lesser punishment.

[12]

In
    arriving at this conclusion, the application judge relied on the Supreme
    Courts decision in
Canada (Attorney General) v. Whaling
, 2014
    SCC 20, [2014] 1 S.C.R. 392, at para. 60, for the definition of punishment as
    the retrospective frustration of an expectation of liberty.

[13]

As
    in this case,
Whaling
considered the constitutionality of s. 10(1) of
    the
AEPA.
However, the situation of the offenders in
Whaling
was different, and the case involved a different section of the
Charter
.
    In
Whaling,
the offenders had already been sentenced and were serving
    their sentences in the penitentiary on the date the
AEPA
came into
    effect. The Supreme Court concluded that the offenders were entitled to APR
    because s. 11(h) of the
Charter
guaranteed that a person found guilty
    and punished for an offence will not be punished for that offence again. The
    court found that s. 10(1) of the
AEPA
had the effect of punishing the offenders
    a second time: by retrospectively imposing a delay in day parole eligibility in
    relation to offences for which they had already been tried and punished, s.
    10(1) effectively extended their incarceration without regard to individual
    circumstances: at para. 71.

[14]

Before
    this court, the Attorney General submits that the application judge erred in
    his application of
Whaling
to the case at bar.

[15]

The
    Attorney General contends that the leading authority on the meaning of
    punishment is the Supreme Courts decision in
R. v. Rodgers,
2006
    SCC 15, [2006] 1 S.C.R. 554. In
Rodgers
, the Supreme Court stated that
    a consequence of conviction will constitute a punishment when it forms part
    of the arsenal of sanctions to which an accused may be liable in respect of a
    particular offence and the sanction is one imposed in furtherance of the
    purpose and principles of sentencing: at para. 63.

[16]

The
    Attorney General notes that criminal law distinguishes between sentencing and
    parole:
Whaling,
at para. 68. Sentencing courts sanction past criminal
    acts; whereas the correctional system prepares offenders for reintegration into
    the community. According to the Attorney General, the applications judge conflated
Criminal Code
parole eligibility with
CCRA
parole eligibility,
    thereby ignoring the distinction between sentencing and parole.

[17]

The
    Attorney General also points out that in
Whaling,
the Supreme Court
    said, Changes to the conditions of a sentence, such as eligibility for parole,
    do not alter the sentence itself: at para. 1. The changes to parole
    eligibility addressed in
Whaling
became punitive only because they applied
    retrospectively to offenders who had already been sentenced.

[18]

The
    Attorney General submits that the date of sentencing is the reference point for
    determining whether a change to parole eligibility is punitive. The Attorney
    General relies on Wagner J.s statement at para. 58 of
Whaling
that an
    offender has an expectation of liberty that is based on the parole system in
    place at the time of his or her sentencing, and that thwarting that expectation
    may engage a constitutionally protected liberty interest.

[19]

Based
    on these selective passages from
Whaling
and
Rodgers
, the Attorney
    General submits that it is the retrospective frustration of the expectation of
    liberty at the time of sentencing that will constitute punishment for the
    purposes of s. 11(i) of the C
harter
.

[20]

These
    arguments were considered and rejected by the British Columbia Court of Appeal
    in
Liang v. Canada (Attorney General)
, 2014 BCCA 190, 311 C.C.C. (3d)
    159, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 298. As in this
    case
,
the respondents in
Liang
committed offences before, but
    were sentenced after, the
AEPA
came into force.

[21]

In
    my view,
Liang
is both persuasive and authoritative. A.W. MacKenzie
    J.A., writing for the court, reasoned that the settled expectation of liberty
    referred to in
Whaling
was not a psychological standard directed at
    vindicating the subjective expectation of offenders, but instead, an objective
    standard to determine whether the punishment has in fact increased: at para.
    19. Viewed from that perspective, he concluded that extended incarceration was
    an objectively ascertainable effect of the changes to the parole system
    between the time of the offences and the time of sentencing: at para. 23.

[22]

MacKenzie
    J.A. found that the logic of
Whaling
could be applied to cases where
    the offence was committed before, but the offender was sentenced after, the
AEPA
came into force. He explains at para. 15:

It is difficult to avoid a straightforward application of the
    logic of
Whaling
to this case, along the following lines. The offences
    at issue here were committed in 2009 and 2010; the APR system was abolished in
    2011; the offenders were sentenced in 2012 and 2013. Thus, at the time of the
    commission of the offences in question, the law permitted offenders the benefit
    of the APR system; at the time of sentencing, the APR system was no longer
    available. If the abolition of APR constitutes "punishment", then the
    punishment for the offence has been "varied between the time of commission
    and the time of sentencing", so the offenders are constitutionally
    entitled to the "benefit of the lesser punishment" (i.e., the parole
    system in place before the changes, including APR). The Supreme Court of Canada
    in
Whaling
found the abolition of the APR system constituted
    "punishment" because it substantially increased the risk of
    additional incarceration. The same legislation would have the same effect in
    this case. Therefore, the offenders are entitled to the "lesser"
    punishment; that is, to APR.

[23]

The
    Supreme Court refused the Attorney Generals application for leave to appeal on
    January 29, 2015.

[24]

The
    Attorney General submits that
Liang
was wrongly decided, and the
    Supreme Courts refusal of the application for leave to appeal should not be
    regarded as approval of the British Columbia Court of Appeals decision. The
    effect of the Supreme Courts refusal of leave to appeal aside, the analysis in
Liang
, which is based on a close and careful reading of
Whaling
,

is persuasive and in my view correct. I agree with the British Columbia
    Court of Appeal that the
AEPA
infringes the s. 11(i) rights of non-violent
    offenders serving a first sentence of imprisonment in a federal penitentiary. The
    changes to the parole system have the effect of appreciably increasing the
    amount of time such offenders would be incarcerated in comparison to what they
    would have expected under the regime in place at the time they committed their
    offences. This increase in incarceration is a variation in punishment within
    the meaning of s. 11(i).

[25]

Moreover,
    there is good reason to follow the decision of the British Columbia Court of
    Appeal. The merit of the uniform application of federal statutes in all
    provinces is obvious. In addition, this court is aware, based on its appeal
    management, that federal inmates convicted of crimes in Ontario are being
    housed in federal facilities across the country, including British Columbia.
    This adds to the importance that there be a uniform approach across the
    country. The Supreme Court is no doubt aware of this.

[26]

The
    Attorney Generals final argument was to point out a wrinkle in the case of
    Debbie Craddock, one of the ten applicants before the application judge. Unlike
    the other nine applicants who were sentenced after the repeal of the APR
    provisions for offences committed before their repeal, Craddock was sentenced
    to two years, ten months, 13 days imprisonment for offences committed both
    before and after the abolition of APR regime. The application judge granted her
    eligibility for APR along with the other applicants.

[27]

By
    happenstance, just two days after the application judges decision, the Parole
    Board granted Ms. Craddock release under the standard parole regime. Thus, the
    appeal as it relates to Ms. Craddock is moot. However, the Attorney General
    submits her case illustrates why focusing on the date the offence was committed
    cannot be the correct approach to determining whether the variation in parole
    eligibility is punitive. The Attorney General says that if the application judges
    decision had been carried out, Ms. Craddock would have received accelerated parole
    for offences committed after repeal of the APR provisions, and this cannot be a
    correct result.

[28]

I
    do not find this argument persuasive. The case of Ms. Craddock illustrates that
    complexities may arise, but does not undermine the analysis in
Liang
.
    The cases of individuals sentenced for some offences committed before the
    repeal of the APR regime and other offences committed after its repeal will
    have to be considered on their own facts and in light of the form of the
    sentence or sentences imposed. The primary sentencing documents relating to Ms.
    Craddock are not in the record, and since her case is moot, it is not necessary
    to deal with that complexity in this decision.

[29]

The
    decision of this court in
R. v. R. S.
, 2015 ONCA 291 was released
    after this appeal was argued while it was under reserve. The parties have not
    had the opportunity to address it, and I confine myself to observing that its
    reading of
Whaling
and
Liang
is consistent with mine in this
    case.

[30]

I
    conclude that the
AEPA
infringes the s. 11(i) rights of offenders who
    committed offences before but were convicted and sentenced after its enactment.
    I turn to whether the infringement is saved by s. 1 of the Charter.

Section 1 of the
Charter

[31]

The
    government must establish that the retrospective application of the
AEPA
serves a pressing and substantial government objective, is rationally connected
    to that objective, minimally impairs the
Charter
right, and that its
    salutary benefits outweigh its detrimental effects.

[32]

There
    is a transition phase whenever statutory provisions are repealed and replaced
    by others. The government has offered no reason why the transition phase
    resulting from the repeal of APR had to be made retrospective. I agree with the
    following analysis of the application judge, at para. 16:

In
Whaling
the Supreme Court of Canada in the judgment
    of Justice Wagner held that the Crown had met the first 2 requirements but had
    failed to establish the minimal impairment test. It held that the government
    sentencing objectives could have been met by specifying that the abolishment of
    APR applied only to offenders who were sentenced after March 28, 2011 when the
    AEPA came into effect. This would have avoided a conflict with s. 11(h) of the
Charter
.
    I agree with the opinion expressed by [Justice MacKenzie] for the BCCA that the
    federal government could have accomplished its sentencing objectives and
    avoided a conflict with both s. 11(h) and (i) by providing that the AEPA
    applied only to offenses committed after it came into effect on March 28, 2011.
    The Crown has failed to meet the minimal impairment test for s. 1 of the
Charter
to apply.

B.

Conclusion

[33]

I
    would conclude that offenders who committed offences before but were convicted
    and sentenced after the enactment of the
AEPA
are entitled to the APR regime
    previously in place by virtue of s. 11(i) of the
Charter
. I would
    dismiss this appeal and uphold the decision of the application judge.

Released: May 29, 2015

(PR)

R.G. Juriansz J.A.

I agree Janet
    Simmons J.A.

I agree K. van
    Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Midanik v. Powell, 2015 ONCA 375

DATE: 20150525

DOCKET: C59571

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

David Midanik

Plaintiff (Appellant)

and

Betsy Powell and John
    Wiley & Sons Canada Limited

Defendants (Respondents)

William C. McDowell, for the appellant

Joseph Groia and Martin Mendelzon, for the respondent
    Betsy Powell

Richard G. Dearden and Anastasia Semenova, for the
    respondent John Wiley & Sons Canada Limited

Heard: May 22, 2015

On appeal from the judgment of Justice James M. Spence of
    the Superior Court of Justice, dated October 9, 2014.

ENDORSEMENT

[1]

The appellant David Midanik appeals from the judgment of Spence J. of
    the Superior Court of Justice dated October 9, 2014, dismissing Midaniks
    action against Betsy Powell, the respondent author, and John Wiley & Sons
    Canada Limited, the respondent publisher.

[2]

Midaniks defamation action was grounded in a book written by Powell and
    published by Wiley Co. The book was titled
Bad Seeds  The True Story of
    Torontos Galloway Boys Street Gang
. Midanik first appears at page 160 of
    the book, introduced as defence counsel for an accused murderer and member of
    the gang. At p. 161, Powell wrote:

He also, by his own admission, was someone who didnt work well
    with others. He said he identified with the character Tuco in director Sergio
    Leones 1966 Italian spaghetti western classic,
The Good, the Bad and the
    Ugly
. Midanik told me the loutish outlaw Tuco (the Ugly) said in the
    movie: I like big men because when they fall, they fall hard. (The actual
    line is: I like big fat men like you. When they fall they make more noise.)
    In any event, noise is what Midanik was known for making, prompting Dambrot, in
    one of his numerous pre-trial rulings, to refer to him, with considerable
    understatement, as no shrinking violet.

[3]

Midanik decided to sue the respondents in defamation for this passage.
    In his Amended Statement of Claim, he claimed:

7.
The plaintiff claims false and
    defamatory innuendo created by the defamatory words set out in paragraph 5,
    which taken in the context of the book as a whole
, in their natural and
    ordinary meaning were meant and were understood to mean any or all of the
    following, which are defamatory of the plaintiff:

(a)     the plaintiff is a hardened criminal;

(b)     the plaintiff is a murderer;

(c)     the plaintiff is a rapist;

(d)     the plaintiff is a thief;

(e)     the plaintiff is ugly;

(f)      the plaintiff is immoral;

(g)     the plaintiff is violent;

(h)     the plaintiff is not a good lawyer;

(i)      the plaintiff is dishonest;

(j)      the plaintiff is a psychopath; and

(k)     the plaintiff is sleazy.

[Emphasis in
    original.]

[4]

The respondents moved for summary judgment dismissing the action. The
    motion judge accepted their argument. He reasoned:

Because the Plaintiff has pleaded that the natural and ordinary
    meaning of the words in paragraph 5 is defamatory, the court cannot consider
    any extrinsic facts in determining whether the words are capable of the
    meanings pleaded at paragraph 7. It was submitted for the plaintiff that the
    reference in the words in paragraph 5 to Tuco and the movie The Good, the
    Bad and the Ugly effectively incorporated by reference into paragraph 5 the
    movie and its portrayal of the character Tuco in the movie.

However, a reasonable and fair reader of the words in paragraph
    5 would not consider that the references to Tuco and the movie had that effect.
    The statement in paragraph 5 is that the plaintiff self-identified with Tuco,
    who said he liked big men because they fell hard. The statement in paragraph 5
    that the words of the Plaintiff would not suggest that to the reasonable and
    fair-minded reader that the author was saying that the Plaintiff identified
    with Tuco in any other way. Indeed, a reasonable and fair minded reader would
    not think that the author was saying that the Plaintiff had said he identified
    with the offensive characteristics of Tuco in the movie, which are apparently
    the source of virtually all of the alleged meanings in paragraph 7.

[5]

The appellant appeals on four grounds.

[6]

First, the appellant contends that the motion judge erred in his
    defamation analysis. The appellant asserts that the impugned passage in the
    book is defamatory on its face, suggesting that Midanik is a criminal, immoral,
    and a violent person.

[7]

We disagree. In his pleading (para. 7), Midanik focussed on the words in
    the book in their natural and ordinary meaning. The relevant words tied to
    Midaniks approbation are Tacos words I like big men because when they fall,
    they fall hard. These words, read as a whole and in context, are far removed
    from the meaning suggested by Midanik in paragraph 7 of his Statement of Claim.
    As the motion judge said: The words complained of are not capable of bearing
    those defamatory meanings.

[8]

Second, the appellant asserts that the motion judge erred by not
    considering the true innuendo category of interpretation of allegedly defamatory
    statements. As expressed in his factum (para. 35): In this case, Mr. Midanik
    expressly pleaded a false innuendo but also pleaded all of the extrinsic facts
    and circumstances necessary for understanding the true innuendo.

[9]

We do not accept this submission. The motion judge did not need to
    consider this category because Midaniks counsel on the motion (not appellate
    counsel) specifically disclaimed reliance on it, even employing a heading in
    his motion factum saying The innuendos are false, not true.

[10]

Third,
    the appellant submits that the motion judge should have granted leave to amend his
    pleading rather than dismiss the action.

[11]

We
    disagree. This was a summary judgment motion, not a motion to strike pleadings.
    Moreover, at no time during the summary judgment proceeding did the appellant
    request leave to amend his Amended Statement of Claim to plead true innuendo
    and the extrinsic facts that would support the special meanings that he was a
    murderer, rapist, thief and the other extreme meanings pleaded in para. 7 of
    the Amended Statement of Claim.

[12]

Fourth,
    the appellant contends that the motion judge erred by awarding substantial
    indemnity costs to both respondents for both the motion and the action.

[13]

The
    motion judge reasoned: On the motion for summary judgment the defendants made
    Rule 49 offers. Costs on the substantial indemnity scale are warranted.

[14]

With
    respect, this passage reflects a misunderstanding of the Defendants Offer
    branch of Rule 49, which says nothing about substantial indemnity costs. Nor can
    the respondents bring themselves within the case law dealing with substantial
    indemnity costs for a successful defendant.

[15]

This
    conclusion requires an adjustment in the motion judges costs award. The result
    of the summary judgment motion was not surprising. In our view, this defamation
    action was ill-conceived. After reviewing Rules 49 and 57, the record for the
    action and the summary judgment motion, and the parties costs submissions and
    supporting documentation, we would award costs to the respondents of the action
    and motion on a partial indemnity basis as follows:

John Wiley &

Sons

Motion - $17,000

Action - $60,000

Betsy Powell

Motion - $17,000

Action - $7,500

[16]

The
    appeal is allowed in part, but only to change the costs awards as described
    above. In all other respects, the appeal is dismissed.

[17]

The
    parties agree that costs of the appeal should be awarded to the respondents in
    the amounts of $18,100 for John Wiley & Sons and $17,400 for Betsy Powell,
    inclusive of disbursements and applicable taxes.

J.C. MacPherson J.A.

E.A. Cronk J.A.

E.E. Gillese
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Najjar v. Brombow Developments Limited, 2015 ONCA
    383

DATE: 20150528

DOCKET:  C59642

Juriansz, MacFarland and Lauwers JJ.A.

BETWEEN

Larry Najjar

Moving Party

(Appellant)

and

Brombow Developments Limited and The Municipality
    of Chatham-Kent

Respondents (Respondents)

Larry Najjar, acting in person

John Norton and Daniel Byskal, for the respondent, The Municipality
    of Chatham-Kent

Alan Patton, for the respondent, Brombow Developments Limited

Heard:  April 23, 2015

On appeal from the order of Justice Joseph M.W. Donohue of the Superior
    Court of Justice, dated October 21, 2014.

Lauwers J.A:

Background

[1]

The underlying dispute on this appeal concerns reasonable
    public access to a woodlot.

[2]

Paxtons Bush is a 21-acre woodlot in
Chatham-Kent.
    It is
bisected into north and south halves by a drainage ditch
    known as the Brown Drain. Both halves of Paxtons Bush are owned by the

Municipality of Chatham-Kent. Public access to the north
    half across the Brown Drain requires the construction of a culvert across the
    Brown Drain.

[3]

Brombow Developments Limited conveyed the north
    half of the Bush to the Municipality but still owns the adjoining land. Brombow
    owns the land on either side of the drainage corridor but refuses to give the
    Municipality construction access to the Brown Drain across its land. While
    access through the south half of Paxtons Bush for the necessary heavy construction
    equipment is physically possible, it would result in the destruction of too
    many trees.

[4]

The appellant asserts that in refusing access,
    Brombow is breaching specific language in a Settlement Agreement between the
    Municipality and Browmbow, reached during proceedings before the Ontario
    Municipal Board under which it agrees to cooperate with Chatham-Kent and a
    chosen service club or community agency which may wish to establish Open
    Space/Trail Way linkages prior to development of the balance of the Brombow
    lands.

[5]

The appellant brought a motion under s. 86 of
    the
Ontario Municipal Board Act
, R.S.O. 1990, c. O.28 (
OMB Act
),
to enforce the terms
    of a Settlement Agreement between Brombow and the Municipality of Chatham-Kent.
    The appellant asks this court to reverse the motion judges dismissal of the
    motion.

[6]

For the reasons set out below, I would dismiss
    the appeal.

The Context of the OMB Hearing

[7]

Brombow sought the OMBs approval under the
Planning
    Act
, R.S.O. 1990, c. P.13, for its development plans for a large farm
    property that included the north half of Paxton Bush.  At the commencement of
    the OMB hearing to assess Brombows application, Brombow and the Municipality announced
    they had come to a settlement, and would together be seeking the OMBs approval
    of the implementing planning documents.

[8]

Under the Settlement Agreement, Brombow received
    certain development permissions from the Municipality, and was to convey the
    north part of a forested area known as Paxtons Bush, which was about 11 acres
    in size, to the Municipality.

[9]

At the hearing, the OMB Vice-Chair considered
    the evidence, including the expert planning evidence from Brombow and the
    Municipality. He issued an oral decision on November 2, 2010, which was
    formalized on November 19, 2010 into a memorandum of oral decision.  The
    Vice-Chair accepted the expert planning opinion, that:

(a)     OPA [Official Plan Amendment] 16 represents good planning,
    is consistent with the Provincial Policy Statement and is consistent with the
    planning approach taken by the Municipality elsewhere in its settlement area;

(b)     The ZBA [Zoning By-law Amendment] conforms to and implements
    OPA 16; and

(c)     The Draft Plan had regard for the matters enunciated in
    subsection 51(24)(a) to and including (m) of the
Planning Act
.

[10]

As is the OMBs practice, the Vice-Chair withheld
    his order approving these planning documents pending confirmation from the
    Municipality that the conveyance of land from Brombow to the Municipality as
    set out in the Settlement Agreement has been registered on title to the lands
    in question. The OMBs final order giving effect to its approvals was issued
    on February 9, 2011. The preamble notes that the Board has received the
    required confirmation that conveyance of the lands is required by the Settlement
    Agreement has been completed.

[11]

Paragraph 15 of the Settlement Agreement
    provides:

The lands located on either side of the Brown
    Drain are intended for future Open Space/Trail Way linkages but these lands
    will not be conveyed by Brombow to Chatham-Kent in the Phase 1 development as
    set forth in paragraph 8 above save for those sections of the Open Space/Trail
    Way linkage which directly abut the Phase I development lands.  Regardless,
    Brombow agrees to cooperate with Chatham-Kent and a chosen service club or
    community agency which may wish to establish Open Space/Trail Way linkages
    prior to development of the balance of the Brombow lands, such Open Space/Trail
    Way linkages having at all times regard to the needs and requirements of the
    adjacent lands of Brombow for ongoing agricultural use and regard to potential
    disruption to the Open Space/Trail Way linkage related to construction activity
    and the installation of infrastructure;

[12]

The appellant was a party to the OMB hearing at
    which the Settlement Agreement was tendered on November 2, 2010, as noted in
    the Boards formal memorandum of oral decision dated November 19, 2010. He
    submitted to this court that he was initially content with the Settlement
    Agreement because he thought the interests of the community were protected by the
    wording of para. 15, although he took no position on it at the OMB hearing.

[13]

Despite its obligation to cooperate set out in
    para. 15, Brombow has refused to permit heavy equipment to cross its land to
    permit the construction of the culvert across the Brown Drain. The appellant
    described three years of stalling during which the Municipality appeared
    completely unwilling to do anything meaningful to seek enforcement of para. 15.
    Counsel for the Municipality did not deny the appellants assertion.
[1]

The Appellants Motion to the Superior Court

[14]

This state of affairs led the appellant to personally
    move to enforce the Settlement Agreement under s.86 of the
OMB Act,
which
provides:

86. (1)   A certified copy of any order or
    decision made by the Board under this Act or any general or special Act may be
    filed with the Superior Court of Justice, and thereupon becomes and is
    enforceable as a judgment or order of the Superior Court of Justice to the same
    effect, but the order or decision may nevertheless be rescinded or varied by
    the Board.

(2) It is optional with the Board to adopt the
    method provided by this section for enforcing its orders or decisions or to enforce
    them by its own action.

[15]

The motion judge dismissed the motion because he
    could find no basis in agreement, prior orders, law or statute for the relief
    sought.  He held that the OMB order of 9 February 2011 does not impose on
    Brombow an obligation to allow the Municipality (C-K) onto Brombows lands to
    access the Brown Drain within the subject woods.

The Appellants Submissions

[16]

The appellant concedes he is not a party to the
    Settlement Agreement and has no right to enforce it as a matter of ordinary
    contract law. That right belongs to the Municipality.

[17]

The appellant also acknowledges the approval
    order of the OMB dated February 9, 2011 makes only a single mention of the
    Settlement Agreement, in the preamble, which provides that the Board has
    received the required confirmation that the conveyance of the lands is
    required by the Settlement Agreement has been completed. None of the planning
    documents approved by the OMB refer to the Settlement Agreement.

[18]

The appellant argues, however, that the decision
    he is seeking to enforce is the memorandum of oral decision dated November 19,
    2010, not the order of February 9, 2011. He asserts that he has status to do so
    under the
OMB Act
because he was a party to
    the hearing.

[19]

The appellant relies on the Vice Chairs language
    in the memorandum of oral decision, in particular: the planning evidence
    provided by the experts was [i]n support of the Settlement Agreement;  the
    formal order will be withheld until the conveyance of land as set out in the
    Settlement Agreement has occurred; and, in the last sentence of the decision,
    if there are any difficulties encountered with respect to these conditions or
    in relation to any other aspect of the Settlement Agreement, I shall remain
    seized.

[20]

In response to a question from the bench, the
    appellant acknowledged that he did not go back to the OMB in reliance on the
    last sentence of the November 19, 2010 memorandum of oral decision, or under s.
    86(1) of the
OMB Act
. His explanation was
    that, as a litigation lawyer, he is more comfortable in a court environment, so
    he simply took that route, which seemed to be open to him.

Discussion

[21]

The Legislature has chosen to confer
    responsibility for approvals in the land use planning process on the OMB, which
    is an expert tribunal. In that context, the court should be reluctant to consider
    issuing an enforcement order under s. 86 of the
OMB Act
, at first
    instance, for three reasons. First, the
OMB Act
sets out an alternative
    route: s. 86(1) states that the decision may nevertheless be rescinded or
    varied by the Board, and s. 86(2) gives the OMB additional responsibility for
    selecting the method of enforcing decisions.

[22]

Second, the court should be reluctant to
    interpret the meaning of the expression Brombow agrees to co-operate with
    Chatham-Kent in para. 15 of the Settlement Agreement, in the context of the
    entire package of planning documents, including the Settlement Agreement itself.
    That is better left to the OMB as the expert tribunal that approved the
    planning documents that are referred to in the Settlement Agreement.

[23]

Third, the court should be reluctant to conclude,
    although it may well be the case, that upon issuance of the formal order in
    February 2011, the Vice-Chair was
functus officio
and was no longer seized under the terms of the last sentence of
    the memorandum of oral decision of November 19, 2010. There is no evidence
    before this court as to the OMBs practice in such circumstances, which might
    well be entirely different than the approach a court would take.

[24]

In these circumstances, before approaching the
    Superior Court, the appellant ought to have moved before the OMB for further
    relief under the last sentence of the memorandum of oral decision of November
    19, 2010, if available, or under s. 86(1) of the OMB Act, to rescind or vary
    the OMBs order, before seeking an order of the Superior Court.

[25]

It was therefore, with respect, not necessary or
    desirable for the motion judge to interpret the Settlement Agreement. He said, specifically:

The terms of the agreement  do not bind
    Brombow to such a burden [of permitting access]. Co-operation cannot be construed
    as a specific binding legal obligation. Nor does the agreement bind Brombow to
    a specific burden re: installation of infrastructure within the woodlot.

[26]

For the reasons set out above, the task of
    interpreting the Settlement Agreement was not properly before the motion judge
    and is not before us on this appeal. I would not wish to be taken as accepting
    or rejecting the motion judges interpretation.

[27]

Although I would not affirm the motion judges
    reasons, I would dismiss the appeal, without prejudice to the appellant to seek
    a remedy elsewhere.

[28]

Brombow seeks costs in the nominal amount of
    $1500. The appellant asserts that he is a public interest litigant and should
    not be required to pay costs. There is no principle that insulates public
    interest litigants from a costs award. Costs in this case should follow
    success, and I would fix them at $1500 payable by the appellant to the
    respondent Brombow.

Released:  May 28, 2015 JMacF

P.
    Lauwers J. A.

I
    agree Russell G. Juriansz J.A.

I
    agree J. MacFarland J.A.

[1]

Although the Municipality appears before us as a respondent
    with the right to enforce the Settlement Agreement, it does not seek to do so
    in these proceedings, noting only that it, as a public interest litigant,
    takes no position other than to provide context in order to assist the court in
    its interpretation of the OMB decision.


COURT OF APPEAL FOR ONTARIO

CITATION: National Bank of Canada v. Lemargo Inc., 2015 ONCA
    367

DATE: 20150521

DOCKET: C59657

MacPherson, Gillese and van Rensburg JJ.A.

BETWEEN

National Bank of Canada

Plaintiff/Respondent

and

Lemargo Inc. and Enrique Martinez Gonzalez a.k.a.
    Henry Martinez

Defendants/Appellants

No one appearing for the appellants

Natalie Marconi, for the respondent

Heard: May 19, 2015

On appeal from the judgment of Justice Stephen Firestone
    of the Superior Court of Justice, dated November 10, 2014.

APPEAL BOOK ENDORSEMENT

[1]

On consent, the appeal is dismissed with costs to the respondent fixed
    at $14,256 inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Nguyen v.
    Lee, 2015 ONCA 371

DATE: 20150526

DOCKET: C58653

MacPherson, Gillese and van Rensburg JJ.A.

BETWEEN

Bao Duc Nguyen

Appellant

and

Iwin Lee, 1634502 Ontario Inc., Phuoc Nghia Ly
    and Va Lay Duong

Respondents

Bao Duc Nguyen, acting in person

Harry J. Doan, for the respondents

Heard: May 20, 2015

On appeal from the judgment of Justice Stephen E. Firestone
    of the Superior Court of Justice, dated March 21, 2014.

ENDORSEMENT

[1]

This is an appeal of a trial decision awarding damages and pre-judgment
    interest in the sum of $57,566 to the appellant against the respondent Iwin Lee.
    The appellant contends that the trial judge erred in failing to award the total
    amount claimed: $135,000 plus interest, and in dismissing the action against
    the other respondents.

[2]

The appellant and Lee were parties to a loan agreement dated September
    25, 2004. The loan was for $135,000, consisting of $70,000 from before and a
    further $65,000 advanced by the appellant at the time of the agreement. The
    loan was for a one year term from September 30, 2004, to September 30, 2005,
    and the agreement provided that Lee can pay [Nguyen] anytime.

[3]

The respondent Lee operated a jewellery business. From time to time he
    provided jewellery for sale on consignment to Phuong Nguyen. Lee believed that Phuong
    was married to the appellant; at trial, they claimed to be divorced, and the
    trial judge observed that their marital status was unclear.

[4]

According to the evidence, Lee had borrowed $70,000 over time from the
    appellant to fund his jewellery business. The further $65,000 was advanced in
    order to complete Lees purchase of the appellants property at 1276 Bloor
    Street West, in Toronto. The purchase closed in October 2004. Title to the
    property was taken in the name of the corporate respondent, 1634502 Ontario
    Inc., a company owned by Lee and his wife, the respondent Va Lay Duong.

[5]

On July 19, 2005, the property purchased by Lee from the appellant was
    mortgaged for $170,000 to Lees sister, the respondent Phuoc Nghia Ly, and on
    May 2, 2006 the property was transferred for nominal consideration to Duong.

[6]

The central issue at trial was whether and to what extent the loan had been
    repaid. The appellant claimed that no payments had been made, and the
    respondents asserted that there had been an overpayment.

[7]

In concluding that a total of $90,700 had been repaid, the trial judge
    made three central findings. First, he found that there was a payment by a bank
    draft dated May 26, 2005 in the sum $23,200. The trial judge accepted the respondents
    evidence as to the circumstances of repayment: that the appellant and Phuong
    were in urgent need of money, and that Lee arranged to obtain a bank draft from
    his sister to pay the sum of $23,200 toward repayment of the loan. The trial
    judge rejected the evidence of Phuong that she received the bank draft made out
    to the appellant as payment for jewellery she had sold to Lee. He accepted that
    Phuong would occasionally sell Lees jewellery on consignment, and that Phuong
    would owe Lee money, not the other way around, as Phuong had testified.

[8]

Second, the trial judge found that payments (of $35,000, $10,000 and
    $22,500) had been made on May 27, 2005, September 14, 2005, and April 29, 2007,
    as noted and initialled by Phuong on the back of a second copy of the loan
    agreement. The trial judge rejected Phuongs evidence that, although she had
    made the notations acknowledging receipt of payments, she had never received
    the money.

[9]

Finally, the trial judge refused to credit Lee in respect of a May 28,
    2005, notation for $35,000 on the front page of the agreement. He observed that
    the notation was not initialled, and even if it did represent a credit, according
    to Lees evidence it was in respect of an agreement between Lee and Phuong
    regarding jewellery provided to Phuong on consignment, and not between the
    appellant and Lee.

[10]

Regarding
    the fraudulent conveyance claims, the trial judge stated that he considered the
    evidence regarding the sale and transfer of the Bloor St. W. property, and he
    concluded that there was no evidence that any dealings with the property should
    be found to be void as fraudulent conveyances.

[11]

On
    appeal the appellant did not provide oral submissions but relied on his factum.
    His central argument is that he was treated unfairly at trial, when the trial
    judge prevented him from doing certain things while permitting the respondents
    various liberties.

[12]

We
    have carefully read through the transcript of the trial proceedings. Contrary
    to the appellants assertion, during the five day trial, the judge treated all
    of the parties and witnesses with fairness, patience and respect. He provided
    appropriate guidance to the appellant as a self-represented litigant, ensuring
    at every step in the trial that he understood the process and that he had the
    opportunity to put forward his case.

[13]

The
    trial judge accommodated the appellant on several occasions, when he requested
    breaks to prepare for parts of the trial, in affording him a second chance to
    cross-examine the respondent Lee, and in permitting the appellant to read in
    passages from a discovery transcript during the defence case, and after the
    plaintiffs case was closed.

[14]

The
    appellant takes objection on appeal to certain rulings and directions of the
    trial judge. In our view, the trial judge exercised his discretion
    appropriately in his various rulings and directions, including: his decision to
    exclude the appellants daughter and son from the court room after it appeared
    that the son might be communicating with Phuong, contrary to an order excluding
    witnesses; his caution that the appellant not discuss his evidence with
    potential witnesses during the trial; his directions respecting the proper use
    of discovery transcripts in cross-examination; his refusal to accept into
    evidence a book of documents containing settlement offers and irrelevant
    materials, while ensuring that the relevant documents were in evidence; and his
    measured and appropriate response to the appellants contention that he had
    been threatened by someone at the respondents behest.

[15]

The
    trial judge was even-handed in responding to the objections of both sides. In
    fact, at the conclusion of the trial during closing submissions, the appellant
    expressed his appreciation to the judge for the fair manner in which the trial
    was conducted, a sentiment that was echoed by defence counsel.

[16]

There
    is simply no basis for the appellants argument that the trial was unfair. Accordingly,
    we reject this ground of appeal.

[17]

The
    appellant also contends that the trial judge erred in his findings with respect
    to the $23,200 payment. He asserts that the draft was money payable to Phuong
    from the sale of jewellery to Lee, and not a payment on account of the loan. This
    explanation of the payment was offered by Phuong at trial, and rejected by the
    trial judge. This he was entitled to do. His decision respecting the $23,200
    was amply supported by the evidence that he did accept. Accordingly, this
    ground of appeal cannot be sustained.

[18]

Finally,
    the appellant contends that the trial judge erred in dismissing the fraudulent
    conveyance claims. The conveyancing documents show that title to the Bloor St.
    W. property was taken in the name of the numbered company, with the knowledge
    of the appellant. The evidence respecting the mortgage was that it was security
    for Lees borrowings from his sister, which included the $23,200 bank draft.
    Lee and his wife Duong testified that the transfer of the property to her name
    in 2006 was out of concern for her security at a time when she had health
    problems. There was no evidence that Lee was insolvent or as to how the
    transfer affected his ability to meet his obligations. Indeed, he made a
    further payment on the loan after the impugned transactions. There is no basis
    for interfering with the trial judges conclusion respecting the fraudulent
    conveyance claims. This ground of appeal is without merit.

[19]

The
    appeal is therefore dismissed. The respondents are entitled to their costs of
    the appeal payable by the appellant. In view of the brevity of the respondents
    factum and oral submissions the costs are fixed at $1,000, inclusive of disbursements
    and applicable taxes.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.

K.
    van Rensburg J.A.