COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Turner, 2022 ONCA 180

DATE: 20220301

DOCKET: C68105

Tulloch, Huscroft and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerome Turner

Appellant

Richard Litkowski, for the appellant

Linda Shin, for the respondent

Heard: February 22, 2022 by
    video conference

On appeal from the conviction entered on
    October 31, 2019, and the sentence imposed on February 21, 2020 by Justice Susanne
    Boucher of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was found guilty following trial
    by jury on five counts of armed robbery arising out of the robbery of several convenience
    stores. He appeals conviction and sentence.

[2]

The appeal is dismissed for the reasons that
    follow.

Background

[3]

The robberies occurred within a twelve-day
    period in 2017. All the robberies were committed by two people wearing face
    coverings, gloves, and hoodies. The taller of the two robbers threatened the
    clerk with a knife, while the shorter of the two took the money and goods.

[4]

After the fifth robbery, the police discovered a
    black Acura that matched the description of the car seen at the location of the
    fourth robbery. Items inside the car appeared connected to the robberies. The
    police seized the car and impounded it. They determined that the car belonged
    to Gornes Gittens, who was arrested shortly afterwards, and subsequently
    pleaded guilty to all five robberies. Cell phone records revealed calls and
    messages between the appellant and Gittens before and after two of the
    robberies. Personal items inside the car had the appellants DNA on them, and there
    was an ID with his personal information, including his name, Jerome Turner.

[5]

The sole issue at trial was the identity of the
    taller perpetrator.

[6]

The appellant raises several issues on appeal.
    We address each of them in turn.

Similar fact ruling

[7]

The trial judge granted the Crowns application
    to use the similar fact evidence across counts to prove identity.

[8]

The appellant argues that the trial judge erred
    in applying the test set out by the Supreme Court in
R. v. Perrier
,
    2004 SCC 56, [2004] 3 S.C.R. 228. The appellant raises a number of
    dissimilarities between the robberies and submits that the facts common to the
    robberies were not sufficiently distinctive to suggest that the perpetrators
    were the same two individuals each time. He argues that the composition of the
    perpetrators was not always constant and one or more other persons could have
    been involved.

[9]

We disagree.

[10]

The trial judge carefully considered the
    similarities and differences. She found that both the general circumstantial
    and specific individualized factors established that it was highly likely that
    the same two people performed the individualized roles in committing all five
    robberies.

[11]

All of the robberies occurred within a twelve-day
    timespan in convenience stores late at night, in the southwestern part of the Greater
    Toronto/Hamilton area. The robbers always wore gloves, face coverings, and hoodies.
    The trial judge acknowledged that these factors would be meaningless on their
    own, but when considered with the specific factors, the general circumstantial
    factors were part of the unifying considerations supporting the probability
    that the same two individuals were involved in each robbery. The specific similarities
    were striking and included the following:

·

Every robbery was a two-person job;

·

The shorter person and the taller person played
    the same roles in each of the robberies;

·

The shorter person had a distinctive posture;

·

The shorter person entered each location after
    the taller person and acted as the bag man in every robbery;

·

The taller person controlled the store clerk and
    brandished the knife in every robbery;

·

The taller person had a distinctive posture;

·

The taller person performed a signature move in
    jumping the counter; and

·

The shorter person and the taller person wore
    clothing of the same size, shape, colour, and style in all of the robberies.

[12]

The trial judge considered the dissimilarities
    but concluded that they did not detract from the cogency of the similarities to
    any significant degree. Her conclusion that it was highly likely that the same
    two people committed all five robberies is reasonable and amply supported by
    the record.

[13]

The trial judge properly went on to conclude
    that there was evidence linking the appellant to the similar fact evidence, as
    required by
Perrier
. Among
    other things, the evidence linking the appellant included the appellants DNA
    on a blue rubber glove used in two of the robberies and found in the black
    Acura, which was identified as the getaway vehicle; video evidence from one of
    the robberies; and text messages placing the accused with Gittens at the
    relevant times or dates for the offences.

[14]

Finally, the trial judge considered the
    potential prejudice to the appellant and concluded that it was outweighed by
    the high degree of probative value she found in the evidence. Her analysis is clear
    and thorough and there is no basis for this court to interfere. The similar
    fact application was properly granted. We see no errors in the trial judges
    instructions to the jury concerning the use of the similar fact evidence.

Post-offence conduct

[15]

The appellant argues that a text message sent
    from the appellants phone to Gittens shortly after Gittenss arrest should not
    have been admitted as post-offence conduct evidence from which guilt could be
    inferred, because there was no independent evidence of fabrication. In that
    text, the appellant expressed concern that Gittenss car had been stolen and
    said that he spent $55 on a cab to get home as a result of the theft.

[16]

There is no merit to this argument.

[17]

There was ample evidence of fabrication, and the
    trial judge properly applied the law in
R. v. OConnor
(2002), 62 O.R.
    (3d) 263 (Ont. C.A.). This included evidence of a ten-minute phone call from
    Gittens to the appellant after his car had been seized by the police, and
    before Gittens reported that the car had been stolen. A subsequent phone call by
    Gittens to the appellant, followed by the arrest of Gittens, preceded the
    appellants text message to Gittens expressing concern that his car had been
    stolen. These were all circumstances surrounding the appellants text that
    afforded independent evidence of fabrication. The trial judge explained why it
    did not matter that the text was sent to Gittens rather than to the police. It
    was open to the jury to conclude that the appellant had an interest in the
    theft narrative because the car contained inculpatory evidence and fit the
    description of the car seen leaving the scene of the fourth robbery.

[18]

We see no error in the trial judges
    instructions to the jury on this point.

Section 8 rulings

[19]

The trial judge made two s. 8 rulings. In the
    first, she ruled that a warrantless search of Gittenss cell phone violated the
    appellants s. 8 rights and excluded two pieces of evidence as a result: the
    appellants contact information, and a statement from the appellant in which he
    told the police that Gittens picked him up, that they went to his sisters
    house, that Gittenss car was stolen, and that he had to take a cab home. This
    ruling is not challenged on appeal, but it informs the second ruling.

[20]

The appellant made a second s. 8 application to
    exclude his subscriber information, text messages and cellphone tower
    information, all of which was obtained from Gittenss cellphone pursuant to a
    production order. The trial judge excised references to the search of Gittenss
    cellphone and references naming the appellant as Bounty, but otherwise
    dismissed the application.

[21]

The appellant argues that the trial judges
    approach to excision was too narrow and that subsequent investigative steps
    taken by the police that yielded additional information were inextricably
    linked to the initial search of Gittenss phone, which formed the basis for the
    first s. 8 ruling finding a breach. We disagree.

[22]

The courts task on appeal is to determine
    whether the trial judge could have issued the production order, not whether
    this court would have done so. The trial judge acceded to most of the
    appellants requested excisions from the ITO and fully explained her reasons
    for denying the appellants other requests. In the absence of an error in
    principle, her decision is entitled to deference. We see no such error. The
    trial judge went on to conclude that, in the event she was wrong, the evidence
    should not be excluded under s. 24(2). We note that there is no challenge to
    her decision in this regard.

Sentence

[23]

The appellant argues that his sentence  21
    months on each count less pre-trial custody  was too harsh. There is no basis
    to impugn the sentence in this case. The trial judge did not err in law or
    principle, nor can it be said that the sentence imposed was demonstrably unfit.
    On the contrary, in light of the appellants previous six-year sentence for ten
    similar robberies and the commission of the first of these offences only three
    days following the end of his parole period, the sentence imposed was at the
    low end of the range.

Conclusion

[24]

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

M.
    Tulloch J.A.

Grant
    Huscroft J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Urbancorp Toronto Management Inc. (Re), 2022 ONCA
    181

DATE: 20220303

DOCKET: M52860

Strathy C.J.O., Roberts and Sossin JJ.A.

In the Matter of the
Companies Creditors
    Arrangement Act
, R.S.C. 1985, c. C-36, as amended;

And in the Matter of a Plan of Compromise or Arrangement of Urbancorp Toronto
    Management Inc., Urbancorp (St. Clair Village) Inc., Urbancorp (Patricia) Inc.,
    Urbancorp (Mallow) Inc., Urbancorp (Lawrence) Inc., Urbancorp Downsview Park
    Development Inc., Urbancorp (952 Queen West) Inc., King Residential Inc.,
    Urbancorp 60 St. Clair Inc., High Res. Inc., Bridge On King Inc. (Collectively the
    Applicants) and the Affiliated Entities Listed In Schedule A Hereto

Neil Rabinovitch and Kenneth
    Kraft, for the moving party, Guy Gissin, in his capacity as Foreign
    Representative of Urbancorp Inc.

Robin B. Schwill, for the responding
    party, KSV Kofman Inc., in its capacity as Monitor

Bobby Kofman, Noah Goldstein and
    Robert Harlang, for the responding party, KSV Restructuring Inc.

Andrew Winton, for the responding
    party, Doreen Saskin

Heard: in writing

Motion for leave to appeal from
    the order of Chief Justice Geoffrey B. Morawetz of the Superior Court of
    Justice, dated September 16, 2021, with reasons at 2021 ONSC 5073.

REASONS
    FOR DECISION

[1]

Pursuant to s. 13 of the
Companies Creditors Arrangement Act
, R.S.C.
    1985, c. C-36 (the
CCAA
), the moving party, in his capacity as
    Foreign Representative of Urbancorp Inc., seeks leave to appeal from the
    distribution order of the Supervising Judge of the Superior Court of Justice (the
    Supervising Judge) dated September 16, 2021, authorizing the court-appointed
    Monitor of the applicants to make a distribution to King Towns North Inc.
    (KTNI). KTNI is the owner of certain lands known as the Berm Lands and the
    landlord under a lease of these lands to certain entities, described below. The
    Monitor does not join in the appeal.

[2]

Section 13 provides that any person dissatisfied with an order or
    decision made under the
CCAA
may appeal from the order or decision
    with leave.

[3]

In determining whether leave should be granted, this court considers
    whether:

a.

the proposed appeal is
prima facie
meritorious or frivolous;

b.

the points on the proposed appeal are of significance to
    the practice;

c.

the points on the proposed appeal are of significance to
    the action; and

d.

the proposed appeal will unduly hinder the progress of the
    action.

See
Stelco Inc.

(Re)
(2005), 75 O.R.
    (3d) 5 (C.A.), at para. 24;
Nortel Networks Corporation (Re)
,
    2016 ONCA 332
, 130 O.R. (3d) 481, at para. 34, application for leave to
    appeal discontinued, [2016] S.C.C.A. No. 301;
Timminco Limited (Re)
,
    2012 ONCA 552, 2 C.B.R. (6th) 332, at para. 2;
DEL Equipment Inc. (Re)
,
    2020 ONCA 555, at para. 12.

[4]

Leave to appeal is granted sparingly and only where there are serious
    and arguable grounds that are of real and significant interest to the parties:
Nortel Networks
, at para. 34.

Background

[5]

The facts are set out in detail in the reasons of the Supervising Judge.
    We summarize only those facts necessary to explain our decision.

[6]

CCAA
proceedings of the Urbancorp group of companies (the
    Urbancorp Group) have been overseen by the Commercial List since 2016. In
    related proceedings, Urbancorp Renewable Power Inc. (URPI) has been in
    receivership since 2018. The Supervising Judge has been case managing both
    proceedings since 2019.

Urbancorps Geothermal Assets

[7]

The Urbancorp Group owned certain assets, described as the Geothermal
    Assets, located in four condominium buildings in Toronto. These assets
    provided heating and air conditioning to each condominium and included, among
    other things, assets located within the condominium building itself,
    below-ground wells to supply water to the heating and air conditioning systems,
    supply agreements with the various condominium corporations and a management
    agreement between the manager of the Geothermal Assets and the owners of those
    assets.

[8]

In the course of these proceedings, the Geothermal Assets pertaining to
    three of the condominiums were sold to Enwave Geo Communities LP (Enwave) for
    $24 million.

The Bridge Geothermal Assets

[9]

The assets at issue before the Supervising Judge (the Bridge Geothermal
    Assets) pertained to one of those condominiums, referred to as Bridge,
    located at 38 Joe Shuster Way in Toronto. At the time of the motion before the
    Supervising Judge, there was approximately $7.7 million available for
    distribution to stakeholders in relation to the Bridge Geothermal Assets.
    KTNIs claim was one of seven claims against those funds. The Monitor admitted
    six claims totaling $5.086 million, but disallowed KTNIs claim of $5.875
    million. As noted above, the Supervising Judge rejected the Monitors
    disallowance and allowed KTNIs claim.

The Berm Lands

[10]

In
    the case of the Bridge Geothermal Assets, the majority of the wells were
    located on a parcel of land adjacent to the Bridge condominium, referred to as
    the Berm Lands. KTNI was the owner of the Berm Lands.

The Berm Lease

[11]

Pursuant
    to a lease dated July 10, 2010 (the Berm Lease), the Berm Lands were leased
    by KTNI jointly to Vestaco Homes Inc. (Vestaco Homes), an Urbancorp-related
    entity which owned the Bridge Geothermal Assets, and URPI, which was the
    manager of the Geothermal Assets. The Berm Lease was set to expire on July 9,
    2060, with provision for renewals, making its term consistent with the relevant
    geothermal energy supply agreement.

[12]

All
    parties to the Berm Lease  KTNI as landlord and Vestaco Homes and URPI as
    tenants  were beneficially owned or controlled by the Saskin family. Alan
    Saskin signed the lease on behalf of each party. Pursuant to a declaration of trust
    dated December 27, 2012, KTNI is declared to be holding all of its interests in
    the Berm Lands in trust for Urbancorp Management Inc. (UMI). The Saskin
    Family Trust is considered to be the sole shareholder of UMI. Doreen Saskin,
    Alan Saskins spouse, claims to be a secured creditor of UMI for approximately
    $2.8 million.

[13]

The
    tenants interest in the Berm Lease was one of the assets sold to Enwave. Enwave
    allocated a value of $2.049 million to the Berm Lease. The Supervising Judge
    found that this was an appropriate valuation.

[14]

The
    Berm Lease initially provided for an annual rent of $200,000, payable to KTNI.
    In 2015, Urbancorp Inc. was in the process of raising funds from the issuance
    of bonds in Israel. There was evidence that in order to increase the value of
    the Geothermal Assets for the purpose of the bond issuance, Alan Saskin amended
    the Berm Lease to provide a rental of $100 per annum, rather than $200,000,
    because a payment of rent to a related company outside the bond structure would
    reduce the net income and the net value of the Bridge geothermal system, made
    up of the Bridge Geothermal Assets.
[1]

[15]

It
    was not disputed that $100 per annum was not a market rent for the Berm Lease.
    However, the Berm Lease provided that the lease could not be transferred or
    assigned without the consent of the landlord, KTNI. The effect was that a
    tenant that was not controlled or beneficially owned by the Saskin family could
    not benefit from a nominal rent at the expense of a Saskin-related landlord.

[16]

This
    brings us to the provision of the Berm Lease, referred to below as the
    Transfer Provision, which is at the heart of this dispute:

13.4(e) Where the Transferee pays or gives to the Transferor
    money or other value that is reasonably attributable to the desirability of the
    location of the Leased Premises or to leasehold improvements that are owned by
    the Landlord or for which the Landlord has paid in whole or in part, then at
    the Landlords option, the Transferor will pay to the Landlord such money or
    other value in addition to all Rent payable under this lease and such amounts
    shall be deemed to be further Additional Rent.

[17]

The
    effect of the Transfer Provision is that on a transfer of the lease, KTNI is
    entitled to the value of the lease. Doreen Saskin contended that the effect
    of this provision in the circumstances is that any amount of the proceeds of
    sale of the Geothermal Assets to Enwave that are attributable to the transfer
    of the Berm Lease should be allocated to KTNI.

The Sale of the Bridge Geothermal Assets to Enwave

[18]

In
    December 2020, over the objection of KTNI, the Supervising Judge approved the
    sale of the Bridge Geothermal Assets to Enwave. The order provided that the
    assignment was free of any payment obligations to KTNI that might arise
    pursuant to s. 13.4 of the Berm Lease. The sale order also provided that the
    allocation of the proceeds of sale was to be determined at a later date. As
    noted earlier, all claims against the Bridge Geothermal Assets, other than
    those related to the Berm Lease, have been resolved.

[19]

The
    Monitor disallowed KTNIs claim to a portion of the proceeds of sale of the
    Bridge Geothermal Assets to Enwave, giving the following reasons:

The Berm Lease is an asset of Vestaco Homes and URPI, as
    tenants, to the extent it provides for under market rent. The Berm Provision
    has the effect of stripping this value away from Vestaco Homes and URPI for no
    consideration. While this would be of little concern if all parties were
    related parties and solvent, the fact is that Vestaco Homes and URPI are now
    insolvent and subject to CCAA and receivership proceedings, respectively.
    Accordingly, in the Court Officers view, a clause set up between related parties
    to manage inter-group asset allocations and tax consequences should not be
    enforceable under the circumstances as a matter of equity and fairness when
    doing so would deprive the estates of value that they possessed on the filing
    date, for no consideration, with the consequential beneficiary being the sole
    officer and director of the Urbancorp Group, Alan Saskin, or members of his
    family.

The Court Officer believes that URPI was made a tenant under
    the Berm Lease as a matter of pure convenience as it was the manager of the
    Bridge Geothermal Assets for the benefit of Vestaco Homes, and the party who
    would be exercising access rights for repairs and maintenance. Commercially, as
    Vestaco Homes is the owner of the Bridge Geothermal Assets, which includes the geothermal
    piping located on the Berm Lands, it makes sense that the economic value of the
    Berm Lease would be allocated fully to it.

[20]

The
    Monitor moved before the Supervising Judge for directions concerning the
    distribution of the proceeds of the sale of the Geothermal Assets. The only
    contested issue related to which party was entitled to the funds reserved ($2.8
    million) in relation to the Berm Lease. The Monitor recommended that the amount
    allocated to the Berm Lease be for the benefit of the tenant Vestaco Homes and
    that KTNIs claim be disallowed. KTNI opposed this recommended proposal.

The Decision of the Supervising Judge

[21]

The
    central issue on the motion below was the interpretation and application of the
    Transfer Provision of the Berm Lease, and specifically whether the provision
    offended either the
pari passu
 rule or the anti-deprivation rule,
    both of which were discussed and explained in the decision of the Supreme Court
    of Canada in
Chandos Construction Ltd. v. Deloitte Restructuring Inc.
,
    2020 SCC 25, 449 D.L.R. (4th) 293.

[22]

The
    Monitor, supported by the Foreign Representative of Urbancorp Inc., took the
    position that Vestaco Homes, one of the tenants, should receive the amount
    Enwave attributed to the Berm Lease. KTNI, supported by Doreen Saskin, opposed
    this proposal.

[23]

The
    Supervising Judge described the Monitors position as follows, at para. 17:

The Monitor is of the view that the Berm Lease is an asset of
    Vestaco Homes and URPI, as Tenants, to the extent it provides for under market
    rent. The Berm Provision has the effect of stripping this value away from
    Vestaco Homes and URPI for no consideration. The Monitor is of the view that a
    clause set up between related parties to manage inter-group asset allocations
    and tax consequences should not be enforceable under the circumstances as a
    matter of equity and fairness when doing so would deprive the estates of value
    that they possessed on the filing date, for no consideration, with the
    consequential beneficiary being the sole officer and director of the Urbancorp
    group, Alan Saskin, or members of his family.

[24]

The
    Supervising Judge rejected evidence tendered by Urbancorp Inc. concerning the
    drafting of the Berm Lease, the purpose of s. 13.4 and the decision to reduce
    the annual rent. He found that the affiant, Mr. Mandell, had failed to disclose
    a cooperation and immunity agreement he had made with the Foreign
    Representative and that his evidence was unreliable and would be disregarded.

[25]

As
    a result, the Supervising Judge based his determination of the issues on the
    documentary record. Applying the principles of contract interpretation
    (referring to
Ventas, Inc. v. Sunrise Senior Living Real Estate Investment
    Trust
, 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24), he accepted the submission
    of Doreen Saskin concerning the interpretation of the Transfer Provision and
    found that, as a matter of contract interpretation, the portion of the
    distribution funds allocated to the Berm Lease was to be transferred to KTNI.
    He observed, at paras. 55-57:

Counsel to Ms. Saskin submits that the starting point for the
    interpretation of the provision is the plain language in s. 13.4(e) of the Berm
    Lease, which expressly states that the Transferor is required to pay the
    proceeds of transfer of the lease to the Landlord.

Counsel further submits that this provision needs to be read in
    the context of the objective factual matrix of the terms of the Berm Lease as a
    whole. This is a long-term lease between non-arms length parties for nominal
    rent and there is no dispute that the rent does not reflect the market value of
    the leasehold interest  which is precisely why EGC allocated $2 million in
    value to the lease. EGC paid URPI that sum to buy the right to pay $100
    annual rent to KTNI for so long as the Berm Lands were being used to generate
    geothermal energy. Accordingly, this is precisely the circumstance contemplated
    by s. 13.4(e) of the Berm Lease, and there is a contractual obligation for the
    portion of the Distribution Funds allocated to the lease to be transferred to
    KTNI.

I have been persuaded by the submissions of counsel to [Ms.]
    Saskin. In my view, the plain language of s. 13.4(e) of the Berm Lease
    establishes the basis for the claim of KTNI.

[26]

The
    Supervising Judge then turned to the Monitors submission that the Transfer
    Provision should be invalidated under either the
pari passu
rule or
    the anti-deprivation rule. The
pari passu
rule prohibits contractual
    provisions that allow creditors to obtain more than their fair share on the
    insolvency of the counterparty. The anti-deprivation rule, he said, protects
    third party creditors, by rendering void contractual provisions that, upon
    insolvency, remove value that would otherwise have been available to a debtors
    creditors from their reach: referring to
Chandos
.

[27]

In
    rejecting this submission, the Supervising Judge referred to and adopted the
    submissions made by counsel for Doreen Saskin. After setting out those
    submissions, the Supervising Judge observed, with respect to the
pari passu
rule, at para. 65:

In my view, the submissions put forth by Doreen Saskin on this
    issue are a complete answer to the arguments raised by the Monitor.
    Specifically, the Berm Lease makes clear that Vestaco does not have an interest
    in the transfer value of the lease  that value was retained by the landlord,
    KTNI in accordance with s. 13.4(e). The Berm Lease reserved the transfer value
    to KTNI and, accordingly, the
pari passu
rule, which invalidates
    contractual terms that prefer one creditor ahead of the others, does not come
    into play on these facts, because KTNIs interest in the Distribution Funds
    does not alter any scheme of distribution.

[28]

With
    respect to the anti-deprivation rule, counsel for Doreen Saskin submitted that
    the anti-deprivation rule requires as a precondition that the impugned term of
    a contract is triggered by an event of insolvency or bankruptcy. Counsel noted
    that the provision in the Berm Lease did not mention bankruptcy or insolvency
    and was agnostic as to whether the transfer occurs in the insolvency context
    or not. The Supervising Judge agreed, at para. 66:

The anti-deprivation rule does not apply as the relevant clause
    does not mention insolvency or bankruptcy. Rather, it applies to all transfers
    of the lease. The clause is triggered by the transfer of the lease.

[29]

The
    Supervising Judge concluded that s. 13.4(e) of the Berm Lease was not
    invalidated under either the
pari passu
rule or the anti-deprivation
    rule.

[30]

The
    Supervising Judge therefore ordered the Monitor to distribute $2.049 million to
    KTNI from the funds available for distribution, with the proviso that there be
    no distribution to Doreen Saskin until such time as her claim in the bankruptcy
    of UMI, KTNIs parent, had been fully and finally accepted by the trustee in
    bankruptcy of UMI.

The Moving Partys Submissions

[31]

The
    moving party submits that the proposed appeal is meritorious and is significant
    to the parties and the profession. He submits that it raises an issue of
    significance to bankruptcy practice concerning the application of the decision
    of the Supreme Court of Canada in
Chandos
, which he submits should be
    seen as a statement of first principles, rather than as a complete code. He
    submits that the practice needs to know whether the anti-deprivation rule can
    be excluded by drafting a provision that omits reference to the words
    bankruptcy or insolvency.

[32]

If
    granted leave to appeal, the moving party proposes to address the following
    issues:

a.

Whether
    the anti-deprivation rule applies in circumstances where an impugned provision
    is not expressly triggered by an event of insolvency, but the effect of the
    clause is to strip value from the insolvent debtors estate. The Supervising
    Judge elevated form over substance in the application of
Chandos
by
    finding that the anti-deprivation rule does not apply to provisions that do not
    expressly reference an event of insolvency. He failed to consider that,
    practically speaking, the only scenario in which s. 13.4(e) could apply would
    be an insolvency or bankruptcy. While the Supreme Court in
Chandos
held that the anti-deprivation rule does not apply to a provision that is not
    triggered by an event other than insolvency or bankruptcy, it did not find that
    the rule could be avoided by clever drafting where, as a practical matter, it
    could only apply in bankruptcy or insolvency;

b.

Whether the Supervising Judge failed to determine whether the value
    attributed to the Berm Lease is reasonably attributable to the desirability of
    the location of the Leased Premises within the meaning of the Transfer Provision;
    and

c.

Whether the Supervising Judge erred by failing to consider the evidence
    of both Mr. Mandell and Mr. Saskin concerning the factual matrix of the
    amendment of the lease.

[33]

The
    moving party submits that granting leave to appeal will not unduly delay the
    insolvency proceedings, which have been continuing since 2016. The asset has
    been monetized but there will be no distribution to Doreen Saskin until such
    time as her claim against UMI has been accepted by UMIs trustee in bankruptcy.

Discussion

[34]

The
    errors identified by the moving party are, at their highest, mixed questions of
    fact and law and will not be set aside in the absence of an extricable error of
    law or a palpable and overriding error in the assessment of the evidence.

[35]

In
    our view, the moving party has not satisfied the first branch of the test for
    leave. None of the alleged errors raise a
prima facie
meritorious
    issue for appeal.

[36]

As
    to the first proposed ground of appeal, we do not accept the moving partys submission
    that the Supervising Judge erred in his application of
Chandos
. It
    bears noting, as the Supreme Court did, that the anti-deprivation rule has
    relatively ancient roots in Canadian law, dating to
Watson v. Mason
(1876), 22 Gr. 574 (Ont. C.A.) and
Hobbs v. The Ontario Loan and Debenture Co.
,
    (1890) 18 S.C.R. 483. The rule was referred to by Blair J., as he then was, in
Canadian
    Imperial Bank of Commerce v. Bramalea Inc.
(1995), 33 O.R. (3d) 692 (Gen.
    Div.), in which he adopted the following summary of the rule, at p. 694:

A provision in an agreement which provides that upon an
    insolvency, value is removed from the reach of the insolvent persons creditors
    to which would otherwise have been available to them, and places that value in
    the hands of others  presumably in a contract other than a valid secured
    transaction  is void on the basis that it violates the public policy of
    equitable and fair distribution amongst unsecured creditors in insolvency
    situations.

[37]

He
    added, at p. 695:

I am satisfied that the principle which underlies the notion
    is the deprivation of the creditors interests in a bankruptcy as a result of a
    contractual provision that is triggered only in the event of bankruptcy or
    insolvency and which results in property that would otherwise be available to
    the bankrupt and the creditors, or its value, being diverted to which is in
    effect, a preferred unsecured creditor. [Citations omitted.]

[38]

In
Chandos
, the majority confirmed that the anti-deprivation rule exists
    in Canadian law and has not been judicially or statutorily eliminated.
    Referring to
Bramalea
, it described the rule as follows, at para. 31:

As
Bramalea
described, the anti-deprivation rule
    renders void contractual provisions that,
upon insolvency
,
    remove value that would otherwise have been available to an insolvent person's
    creditors from their reach. This test has two parts:
first,
    the relevant clause must be triggered by an event of insolvency or bankruptcy
;
    and second, the effect of the clause must be to remove value from the
    insolvent's estate. This has been rightly called an effects-based test.
    [Emphasis added.]

[39]

After
    stating that the focus of inquiry is on the effects of the provision rather
    than the intention of the parties in drafting it, the majority in the Supreme
    Court stated, at para. 35:

The effects-based rule, as it stands, is clear. Courts (and
    commercial parties)
do not need to look to anything other
    than the trigger for the clause and its effect
. The effect of a clause
    can be far more readily determined in the event of bankruptcy than the
    intention of contracting parties.
An effects-based
    approach also provides parties with the confidence that contractual agreements,
    absent a provision providing for the withdrawal of assets upon bankruptcy or
    insolvency, will generally be upheld
. [Emphasis added.]

[40]

The
    Court added, at para. 40:

All that said, we should recognize that there are nuances with
    the anti-deprivation rule as it stands. For example, contractual provisions
    that eliminate property from the estate, but do not eliminate value, may not
    offend the anti-deprivation rule (see
Belmont
,
at para. 160, per Lord Mance;
Borlands
    Trustee v. Steel Brothers & Co. Limited
, [1901] 1 Ch. 279; see also
Coopérants
).
Nor do provisions whose effect is triggered by an event
    other than insolvency or bankruptcy
. Moreover, the anti-deprivation rule
    is not offended when commercial parties protect themselves against a
    contracting counterparty's insolvency by taking security, acquiring insurance,
    or requiring a third-party guarantee. [Emphasis added.]

[41]

The
    emphasized portions of the above extracts make it clear that the focus of the
    concern is (a) whether the provision in question is triggered by an event of
    bankruptcy or insolvency and (b) whether the effect of the contractual
    provision is to deprive the estate of assets
upon
    bankruptcy
: see Lloyd W. Houlden, Geoffrey B. Morawetz & Janis P.
    Sarra,
The 2021 Annotated Bankruptcy and Insolvency Act
(Toronto:
    Thomson Reuters, 2021), at F§108. The Supreme Court in
Chandos
was
    clearly aware of the commercial importance of the issue when it stated that
    contractual agreements, absent a provision providing for the withdrawal of
    assets upon bankruptcy or insolvency, will generally be upheld.

[42]

As
    counsel for Doreen Saskin submitted before the Supervising Judge and reiterated
    in their written submissions, the Supreme Court confirmed in
Chandos
that the anti-deprivation rule does not apply to provisions the effect of which
    is not triggered by bankruptcy or insolvency:
Chandos
, at para. 40.
    The Transfer Provision was triggered by the transfer of the lease, not the
    insolvency of the Urbancorp Group and its affiliates.

[43]

We
    do not accept the submission of the moving party that the Supervising Judge
    elevated form over substance because the only circumstance in which the
    Transfer Provision could apply was an insolvency proceeding. In confirming an
    effects-based approach, as opposed to an intention-based (or commercial
    reasonableness) test, the Supreme Court emphasized the need for commercial
    certainty, at para. 35:

The effects-based rule, as it stands, is
    clear. Courts (and commercial parties) do not need to look to anything other
    than the trigger for the clause and its effect
. The effect of a clause
    can be far more readily determined in the event of bankruptcy than the
    intention of contracting parties.
An effects-based
    approach also provides parties with the confidence that contractual agreements,
    absent a provision providing for the withdrawal of assets upon bankruptcy or
    insolvency, will generally be upheld
. [Emphasis added.]

[44]

It
    cannot possibly be said, in the case of a 50-year lease, with provision for
    renewals, that the Transfer Provision could only ever apply in the case of
    insolvency or bankruptcy.

[45]

The
    interpretation of the Transfer Provision and the application of the
    anti-deprivation rule to the circumstances of this case is a question of mixed
    fact and law and the Supervising Judges decision in that regard is entitled to
    deference. We therefore see little merit to the proposed appeal on the first
    ground.

[46]

Nor
    do the remaining proposed grounds raise
prima facie
meritorious issues. These grounds
relate to the
    Supervising Judges interpretation of the agreement, including his assessment
    of the utility of the factual matrix in the interpretative exercise and his
    assessment of the evidence. Again, his interpretation is entitled to deference.
    While the Supervising Judge did not expressly consider whether the value of the
    Berm Lease was reasonably attributable to the location of the premises, it can
    be inferred that he did so. The proximity of the Berm Lands to the Bridge condominium,
    served by the wells on those lands, was undoubtedly a significant factor of its
    value.

[47]

In
    our view, none of the proposed grounds for appeal can be described as matters
    of importance to the practice. In the case of the application of the
    anti-deprivation rule,
Chandos
quite clearly lays out the framework,
    at para. 40: a contractual provision does not offend the anti-deprivation rule
    so long as it can be triggered by an event other than insolvency or bankruptcy.
    Further, the application of the rule will necessarily be fact-specific and
    dependent upon the interpretation of the particular terms of the contract in
    each individual case. For this reason, alleged interpretive errors by the
    Supervising Judge will be of limited assistance in future cases.

[48]

While
    the appeal may be of significance to this action, standing alone, this factor
    is insufficient to warrant granting leave
    to appeal in this case:
Nortel Networks
, at para. 95.

[49]

Having
    regard to these conclusions, the proposed appeal would unduly hinder the
    completion of the proceedings, which have been underway for nearly six years
    and are nearing completion. The allocation of the proceeds of the sale of the
    Bridge Geothermal Assets is one of the final steps.

[50]

Finally,
    we note that having completed his contractual analysis in the absence of any
    extricable error of law or palpable and overriding error, the Supervising Judge
    was entitled to make a discretionary decision as to the distribution of the
    sale proceeds. As the Supreme Court of Canada has recently noted, supervising
    judges in
CCAA
proceedings are entitled to broad discretion and
    appellate courts must exercise particular caution before interfering with
    orders made in accordance with that discretion:
Canada v. Canada North
    Group Inc.
, 2021 SCC 30, 460 D.L.R. (4th) 309, at para. 22. Intervention
    is only appropriate where the judge has erred in principle or exercised their
    discretion unreasonably:
Grant Forest Products Inc. v. The Toronto-Dominion
    Bank
, 2015 ONCA 570, 387 D.L.R. (4th) 426, at para. 98;
Laurentian
    University of Sudbury (Re)
, 2021 ONCA 199, 87 C.B.R. (6th) 243, at paras.
    19-20;
9354-9186 Québec inc. v. Callidus Capital Corp.
, 2020 SCC 10, 78
    C.B.R. (6th) 1, at paras. 53-54. We see no error in principle or unreasonable
    exercise of discretion in the making of the distribution order.

Disposition

[51]

For
    these reasons, the motion for leave to appeal is dismissed.

[52]

If
    not otherwise resolved, the parties may address the costs of this motion by
    written submissions. The responding party shall file its submissions within 15
    days of the release of these reasons. The moving party shall have 15 days to
    reply. The submissions shall not exceed three pages in length, excluding the
    costs outlines.

G.R. Strathy C.J.O.

L.B. Roberts J.A.

L. Sossin J.A.

SCHEDULE "A"

LIST OF NON APPLICANT AFFILIATES

Urbancorp Power Holdings Inc.

Vestaco Homes Inc.

Vestaco Investments Inc.

228 Queens Quay West Limited

Urbancorp Cumberland 1 LP

Urbancorp Cumberland 1 GP Inc.

Urbancorp Partner (King South) Inc.

Urbancorp (North Side) Inc.

Urbancorp Residential Inc.

Urbancorp Realtyco Inc.

[1]
For further clarity,
Vestaco Homes was added as a party to the
    Berm Lease at the time it was amended in 2015.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2022 ONCA 182

DATE: 20220302

DOCKET: C66489

Rouleau, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kirk Williams

Appellant

Richard Litkowski and Myles Anevich, for the appellant

Jessica Smith Joy, for the respondent

Heard: March 1, 2022 by video conference

On appeal from the sentence imposed on April 6, 2018 by
    Justice S. Casey Hill of the Superior Court of Justice, with reasons reported
    at 2018 ONSC 2030.

REASONS FOR DECISION

[1]

Mr. Williams seeks leave to appeal his sentence in which he was
    designated as a dangerous offender and an indeterminate sentence was imposed.
    He submits that the sentencing judge erred in concluding that one of the
    statutory pathways to a dangerous offender designation was available in his
    case, and that the sentencing judge also erred in his consideration of the
    future harm that the appellant posed. The appellant asks that the dangerous
    offender designation be set aside and that he be designated as a long-term
    offender instead. Alternatively, if the dangerous offender designation remains,
    the appellant asks that a determinate sentence, followed by a long-term
    supervision order, be imposed. At the conclusion of the hearing, we granted
    leave to appeal sentence, but dismissed the appeal for reasons to follow. We
    now provide our reasons.

[2]

On April 11, 2016, the appellant pleaded guilty to sexual assault
    causing bodily harm and choking with intent to commit sexual assault against a 24-year‑old
    female. On April 6, 2018, he was designated a dangerous offender and sentenced
    to an indeterminate sentence.

[3]

The evidence on the dangerous offender hearing was extensive. It included
    expert reports from Dr. Scott Woodside and Dr. Julian Gojer, both forensic
    psychiatrists, as well as Dr. Milan Pomichalek, a psychologist. Dr. Ainslie
    Heasman, a psychologist who had previously treated the appellant at the Centre
    for Addiction and Mental Health (CAMH), also testified as a qualified expert in
    forensic psychology regarding the appellants previous treatment. Additionally,
    an employee of the Parole Board of Canada, a Parole Officer Supervisor, the appellants
    parole officer in 2012 and 2013, and the appellants probation officer from
    September 2013 until his arrest on these charges all testified.

[4]

Both Dr. Woodside and Dr. Gojer agreed that the appellant was a
    high-risk offender. The disagreement between the two experts was whether a
    course of medication, supplemented by high-intensity psychiatric treatment,
    could sufficiently reduce the appellants risk of re-offending.

[5]

The sentencing judge gave lengthy reasons for his conclusion. He
    dismissed the treatment plan as insufficient to adequately protect the public.
    He noted that the appellants psychiatric disorders, life-long and fixed, are
    either untreatable or at best difficult to treat.

[6]

The appellant raises three grounds of appeal. In considering these
    grounds, we are cognizant of the applicable standard of review, namely, that review
    of a dangerous offender designation is more robust than on a regular sentence
    appeal:
R. v. Sawyer
, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26. Thus,
    [c]ourts can review the imposition of an indeterminate sentence for legal
    error and reasonableness, but should defer to the factual and credibility
    findings of the trier of fact:
Sawyer
, at para. 29.

[7]

First, the appellant contends that the sentencing judge erred in
    concluding that the Crown had satisfied three of the four pathways for a person
    to be designated as a dangerous offender beyond a reasonable doubt. We do not
    agree. The sentencing judge concluded that each of the three pathways under s. 753(1)(a)(i),
    s. 753(1)(a)(ii), and s. 753(1)(b) had been satisfied. He gave detailed reasons
    for his conclusions. We do not see any error in those reasons. The appellant
    has a criminal record involving 25 prior convictions, not including his youth
    offences. A number of these offences involved acts of violence, and five of
    them involved sexual offences. The sexual offences all involved especially vulnerable
    victims. The appellants argument that there is a material difference in the
    offences, for this purpose, between the prior convictions that involved children,
    and the predicate offences that involved a young adult, and that the sentencing
    judge applied too general a level of similarity in reaching his conclusion, is
    unpersuasive. Nor do we accept that a 12-year gap between the earlier offences
    and the predicate offences means that the behaviour is not persistent. On that
    point, one must be cognizant of the fact that the appellant spent much of those
    12 years in custody.

[8]

Second, the appellant contends that the sentencing judge failed to
    consider, at the designation stage, the effect that the antiandrogen therapy and
    SSRI medication would have when considering s. 753(1)(b). Again, we do not
    agree. A fair reading of the sentencing judges reasons demonstrates that
    he was fully aware of the evidence regarding the impacts that these medical
    treatments might have and that he considered them throughout his analysis. The
    fact is that the sentencing judge was not satisfied that these medications
    would have the necessary effect in terms of curbing the appellants potential
    conduct.

[9]

The third ground of appeal somewhat mirrors the second. The appellant
    contends that the sentencing judge misapprehended the future risk of recidivism,
    and therefore treatment prospects, at the penalty phase. This argument again
    relies on the aforementioned medical treatment. With respect to that treatment,
    the sentencing judge noted that the two experts disagreed on its effectiveness.
    The sentencing judge also questioned the willingness of the appellant to take
    the medication on a constant basis. Given those facts, the sentencing judge concluded
    that there was not a reasonable possibility of control of the appellant in the
    community. The appellant has failed to show that that conclusion is an
    unreasonable one.

[10]

Ultimately,
    the sentencing judge concluded, at para. 293 of his reasons:

In any event, on the evidence accepted by the court, based upon
    the history of the offender's sexual crimes, the enduring character of his
    psychiatric disorders, his high risk for sexual reoffence, and the evidence
    including the inability of the psychiatric opinions to confidently conclude
    that the offender's risk will be reduced to a tolerably safe level within the
    definite period of a determinate sentence and [long-term supervision order],
    the imposition of an indeterminate preventative sentence is necessary as no
    lesser measure will adequately protect the public against the offender
    committing a further serious sexual offence.

[11]

We
    agree with that conclusion.

[12]

For
    these reasons, leave to appeal sentence was granted but the appeal was
    dismissed.

Paul Rouleau J.A.

I.V.B. Nordheimer J.A.

J. George J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ching, 2022 ONCA 183

DATE: 20220302

DOCKET: C69224

Tulloch, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Willy Palmes Ching

Appellant

Jolene Hansell, for the appellant

Benita Wassenaar, for the respondent

Heard: February 25, 2022 by video conference

On appeal from the sentence imposed on January 24, 2020
    by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

Following the break-up of his 30-year marriage, the appellant
    formed the intent and plan to kill his ex-wife, Maria Ching. Maria had moved
    out of the matrimonial home and into the home of her uncle, Ernesto Agsaulio.

[2]

On October 24, 2009, the appellant attended at Canadian Tire and
    purchased a hatchet and knife. The next day, October 25, 2009, he rented a car,
    drove to the Agsaulio home, parked a block away, and removed the safety cover
    from the hatchet. On arrival at the home, the appellant was in possession of
    the unsheathed hatchet and the knife. He insisted on seeing his wife. Mr.
    Agsaulio attended at the door and indicated to the appellant that his wife did
    not wish to see him. The appellant then forced his way into the home and attacked
    Mr. Agsaulio in front of his family and children, mortally wounding him. He
    died subsequently from his injuries.

[3]

At trial, the appellant was convicted of first-degree murder, but
    on appeal this court substituted a conviction for second-degree murder and
    remitted the matter to the sentencing judge to set the appropriate parole
    ineligibility period. The sentencing judge set
parole ineligibility
    at 21 years.

[4]

The appellant seeks leave to appeal his sentence. He argues, first, that
    the sentencing judge erred in principle by finding the appellants moral
    blameworthiness for second-degree murder was akin to that of an offender
    convicted of first-degree murder. Second, the appellant argues that the sentencing
    judge made a palpable error in finding the appellants mental illness played no
    contributing role in the murder. The appellant submits that his parole
    ineligibility period should be set at 15 years.

[5]

We do not accept these arguments.

[6]

The sentencing judge found that the appellant killed his ex-wifes uncle
    in the course of carrying out his plan to kill his ex-wife. Counsel agreed that
    there were no similar cases dealing with parole ineligibility in these
    circumstances. The sentencing judge concluded that the range was 10-22 years,
    with 25 years available in rare or exceptional cases.

[7]

The sentencing judge was required to determine the appellants moral
    blameworthiness in determining the appropriate sentence. This courts
    conclusion that a second-degree murder conviction was warranted, rather than a
    first-degree murder conviction, did not fetter the sentencing judges
    discretion.

[8]

In the absence of an error in law or in principle that affected the
    sentence, a sentencing judges decision is entitled to deference unless the
    appellant establishes that it is demonstrably unfit:
R. v. Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089.
We see no such error.

[9]

The sentencing judge considered the relevant factors, including the
    appellants purchase of a hatchet and knife and the rental of a car as part of
    a plan to kill his ex-wife. That plan was made in the context of a history of
    spousal abuse. The appellant forced his way into Mr. Agsaulios home and
    assaulted him with the hatchet and knife when Mr. Agsaulio tried to keep the
    appellant away from his ex-wife. In these circumstances, the sentencing judge
    was entitled to consider that the appellants moral blameworthiness was at the
    high end in second-degree murder cases.

[10]

The
    sentencing judge acknowledged that the appellant need only establish that
    mental illness caused or contributed to the murder in order for mental illness to
    be a mitigating factor. He considered the evidence of two defence psychiatrists
    who gave evidence at trial on the appellants capacity to form the specific
    intention to commit murder. In doing so, the trial judge acknowledged that the
    question of capacity was separate from and not determinative of whether or not
    there was a causal connection of mental illness to the murder.

[11]

The
    sentencing judge found that the psychiatric evidence had several shortcomings,
    including reliance on the appellants false statement that he had gone to the
    Agsaulio home to commit suicide rather than to kill his ex-wife. The sentencing
    judge noted, further, that neither psychiatrist opined on whether the
    appellants depression caused or contributed to the killing. He reviewed Dr. Glancys
    testimony at length, ultimately finding that it was not clear on the relevant
    point. He criticized Dr. Gojers testimony on the basis that he attempted to
    justify his opinion rather than impartially consider the evidence and relied on
    incorrect and incomplete information.

[12]

Ultimately,
    the sentencing judge concluded that the appellant had failed to establish that
    the murder was caused by or contributed to by his depression. That was his call
    to make, and we see no basis to interfere.

[13]

In
    summary, the appellant has not established that the sentencing judge erred in
    law or in principle. Although the sentence is at the high end of the range, in
    all of the circumstances it is not demonstrably unfit.

[14]

Accordingly,
    leave to appeal sentence is granted, but the appeal is dismissed.

M. Tulloch J.A.

Grant Huscroft J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada
    Ltd., 2022 ONCA 185

DATE: 20220307

DOCKET: C69254

Simmons, Harvison Young and
    Zarnett JJ.A.

BETWEEN

Ever Fresh Direct Foods Inc.

Plaintiff (Appellant)

and

Jamia Islamia Canada Ltd.

Defendant (Respondent)

Haider Bahadur and Yingjun Huang, for
    the appellant

Anser Farooq and Shivani Balcharan, for
    the respondent

Heard: February 25, 2022 by
    video conference

On appeal from the order of Justice Peter
    A. Daley of the Superior Court of Justice, dated February 19, 2021.

REASONS FOR DECISION

[1]

We see no basis on which to interfere with the
    motion judge's order declining to restore this action to the trial list,
    dismissing it for delay and discharging a certificate of pending litigation
    registered by the appellant.

[2]

The proceeding was commenced by notice of
    application issued in October 2012 and was converted to an action at the
    request of the respondent in March 2013. The proceeding related to an alleged
    loan facility granted by the appellant to the respondent in 2008. After
    commencing the application, the appellant obtained a certificate of pending
    litigation in November 2012 and registered it against property owned by the
    respondent. The parties exchanged pleadings in August and September 2013.

[3]

The appellant never served an affidavit of
    documents
[1]
and made no attempt to schedule discoveries until November 2017. The respondent
    declined to participate in discoveries, which the appellant scheduled for March
    2018, among other reasons because of an unpaid costs order in a related
    proceeding between the parties for over $56,000 and because the appellant had
    not served an affidavit of documents.

[4]

The appellant responded by setting the action
    down for trial in April 2018. However, it was struck from the trial list in
    August 2018 as it was not trial ready, including because the appellant still
    wished to conduct discoveries. The appellant first advised the respondent of
    its intention to move to restore the action to the trial list in May 2019, and
    proposed a discovery plan in July 2019, but did not arrange to proceed with a
    motion until September 2019. The appellants motion and the respondents
    cross-motion to dismiss for delay were originally scheduled for May 2020 but
    were not heard until November 30, 2020 because of the Covid-19 pandemic.

[5]

The motion judge found that, apart from the
    relatively brief delay caused by the pandemic, the delay in the prosecution of
    the action was entirely the appellants responsibility, that the appellant had
    provided no reasonable explanation for its delay in moving the action forward
    and that such delay was both inordinate and inexcusable. He also concluded that
    an inference of prejudice arose from the lengthy delay. He said, there is more
    than a reasonable likelihood that given the passage of time and its impact on
    witnesses memories, and the lack of documentary and oral discoveries, there is
    a substantial risk that a fair trial of the issues at stake will not be
    possible.

[6]

We see no error in the motion judges
    conclusions that responsibility for the delay lay with the appellant and that
    such delay was unexplained, inordinate and inexcusable. The appellant offered
    no explanation for the complete failure to take any steps to move the action
    forward between delivery of its statement of claim in August 2013 and November
    2017 or for the delay between August 2018 through to May and then September
    2019 after the action was struck from the trial list. Given the litigation
    history between the parties and the then existing delay, the motion judge was
    entitled to treat as reasonable the respondents refusal to participate in
    discoveries post-November 2017 based on the unpaid costs order in related
    proceedings and the appellants failure to serve an affidavit of documents.

[7]

Concerning prejudice, as we have said, the
    action related to an alleged loan facility arranged in 2008. The disputed
    issues included the validity of the original agreement. We reject the
    appellants arguments that the motion judge should have concluded that
    cross-examinations on affidavits that occurred in relation to converting the
    application to an action and an unserved affidavit of documents lacking a
    lawyers certificate prepared in November 2013 could somehow ensure trial
    fairness. Simply put, they were not an adequate substitute for a proper
    discovery process. We see no basis for interfering with the trial judges
    conclusion that the appellants delay jeopardized the likelihood of a fair
    trial.

[8]

Based on the foregoing reasons, the appeal is
    dismissed with costs to the respondent on a partial indemnity scale fixed in
    the amount of $10,000 inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Harvison Young J.A.

B. Zarnett J.A.

[1]

An affidavit of documents lacking a lawyers certificate
    sworn in November 2013 by the president of the appellant was included in the
    appellants material on the underlying motions. No proper affidavit of
    documents has ever been served.


COURT OF APPEAL FOR ONTARIO

CITATION: Thermal Exchange Service Inc. v.
    Metropolitan Toronto Condominium Corporation No. 1289, 2022 ONCA 186

DATE: 20220307

DOCKET: C68529

Doherty, Miller and Sossin JJ.A.

BETWEEN

Thermal Exchange Service Inc.

Plaintiff (Respondent)

and

Metropolitan Toronto Condominium
    Corporation No. 1289

Defendant (Appellant)

Robert B. Cohen, for the appellant

Neal H. Roth, for the respondent

Heard: October 25, 2021 by video conference

On appeal from the judgment of Justice Andra
    Pollak of the Superior Court of Justice, dated July 7, 2020, with reasons
    reported at 2020 ONSC 2977.

REASONS
    FOR DECISION

[1]

This appeal concerns the application of s.
    5(1)(a)(iv) of the
Limitations Act
,
2002
, S.O. 2002, c. 24,
    Sched. B, and specifically, when the respondent Thermal Exchange Service Inc.
    (Thermal Exchange) knew that a proceeding would be an appropriate means to
    seek to remedy a loss resulting from the appellant Metropolitan Condo Corp.s (the
    Condo Corp) non-payment of its invoices. It is a question that can only be
    answered in the specific context of the parties legal relationship and their business
    dealings.

[2]

From 2002 to 2015, Thermal Exchange serviced the
    HVAC units in the Condo Corp.s building at 168 Simcoe St. in Toronto. The Condo
    Corp. does not dispute that the work was done at its request, or that it was
    done satisfactorily. Neither does it dispute that many of Thermal Exchanges
    invoices were not paid. Its sole defence at trial was that Thermal Exchange
    brought this action out of time, and the action is now barred by the
Limitations
    Act
.

[3]

Thermal Exchanges understanding was that it was
    contracting with the Condo Corp. rather than the individual unit owners. At
    trial, the Condo Corp. conceded the contractual relationship, and accepted that
    but for the limitations defence, it would be liable to pay the invoices.
    However, at all relevant times the Condo Corp.s property manager operated on a
    different understanding, which was only communicated to Thermal Exchange in 2016:
    that the Condo Corp. was not ultimately liable for paying the invoices, and was
    only obligated to pay if and when it was able to collect payment from the unit
    owners on whose behalf the work was done.

[4]

In August 2017, Thermal Exchange brought the
    action.

[5]

Following a hybrid summary trial, the trial
    judge held that Thermal Exchange had brought the action as soon as it knew that
    an action would be an appropriate means to remedy the Condo Corp.s
    non-payment, even though many of the unpaid invoices had been issued many years
    before the action was brought  some going back as far as 2008. The action was therefore
    not barred by the
Limitations Act
. The trial judge found the Condo
    Corp. owed $86,055.49 to Thermal Exchange, arising from invoices issued between
    2008 and 2015. For the reasons that follow, the Condo Corp.s appeal is
    dismissed.

Background

[6]

Thermal Exchange received work orders from the
    Condo Corp.s property manager, Helen Da Ponte, performed the work she requested,
    and invoiced the Condo Corp. Each of Thermal Exchanges invoices stated that
    payment was due within 30 days from the date of the invoice. However, the Condo
    Corp. typically made payment much later than this  often 300 days later. Thermal
    Exchange continued to provide services on request and tender fresh invoices.

[7]

The trial judge found that Thermal Exchange was
    operating on the basis that the Condo Corp. had one running account, and
    whenever funds were received, they were credited to that one account. This
    finding is central to the trial judges conclusion. The Condo Corp. challenges the
    finding as a palpable error. As we explain below, we do not agree.

[8]

There was conflicting evidence as to Thermal
    Exchanges billing practices. From 2008 forward, Thermal Exchange stopped
    sending individual invoices to the Condo Corp. for each work order, and began
    sending a single, semi-annual batch invoice. Mr. Pintaric, the president of
    Thermal Exchange, testified this was done at the request of the property
    manager, Ms. Da Ponte. Ms. Da Ponte answered that not only was this not at her
    request, it created additional work for her, as it required her to assign the
    correct work orders to their respective unit owners. The trial judge made no
    findings as to who initiated the change in billing practice, but as stated
    above, found that the indebtedness of the Condo Corp. was in the nature of a
    running account.

[9]

At trial, Mr. Pintaric and Ms. Da Ponte each testified
    as to different understandings of how the Condo Corp. processed the invoices.
    Mr. Pintarics assumption was that the Condo Corp. paid the invoices out of its
    operating budget, and then sought reimbursement from the unit owners on whose
    behalf the work was done. But he had no knowledge of the Condo Corp.s internal
    affairs. Ms. Da Pontes evidence was that the Condo Corp. received
    the invoices from Thermal Exchange and in turn invoiced the owner of the unit
    for which the work had been done. If the Condo Corp. received payment from the
    unit owner, it would in turn pay Thermal Exchange; if it didnt, it wouldnt.

[10]

As mentioned earlier, Ms. Da Pontes
    understanding of the nature of the Condo Corp.s contractual obligation to
    Thermal Exchange was mistaken. Thermal Exchange first became aware of it on November
    4, 2016, when Ms. Da Ponte advised Mr. Pintaric via email that the Condo Corp. was
    not responsible for paying the invoices, and that the invoices are
    charge-backs to the unit owners for payment once they receive the copy of the
    invoice.

[11]

There was conflicting evidence at trial as to what
    arrangements, if any, had been made between Thermal Exchange and Ms. Da Ponte regarding
    payment. The evidence of Mr. Pintaric was that he had several conversations
    with Ms. Da Ponte about the non-payment of invoices, and she would invariably
    tell him that she was terribly busy and unable to attend to the matter
    immediately, but was working on the invoices. The trial judge found that the assurances
    that she was working on it led Thermal Exchange to the reasonable belief
    that [its] problem could and would be remedied without the need to have a recourse
    to the courts. Prior to the November 4 email, Mr. Pintaric had believed
    reasonably in the view of the trial judge  that payment was more or less a
    matter of encouraging Ms. Da Ponte to do her job and complete
    whatever paperwork was needed at her end. There had been no refusal to pay and
    no suggestion of inability to pay.

[12]

The trial judge accepted Mr. Pintarics evidence
    that by October 2015, he thought a demand letter from his lawyer might stir Ms.
    Da Ponte to process the invoices. In November 2016, Ms. Da Ponte unexpectedly informed
    Thermal Exchange that the Condo Corp. was not responsible for payment. In
    December 2016, Ms. Da Ponte made a concerted effort to bring the account up to
    date, mailing demand letters to each unit owner with a copy of the Thermal
    Exchange invoices for work specific to that unit. The Condo Corp. was able to
    recover a substantial sum from the unit owners from this effort, which it paid
    to Thermal Exchange.

[13]

On August 17, 2017 Thermal Exchange filed its
    statement of claim, seeking damages for services supplied, breach of agreement,
    and unjust enrichment in the amount of $122,105.34. By the time of trial, the amount
    outstanding had been reduced to $86,055.49.

[14]

The central issue at trial was discoverability:
    specifically, when Thermal Exchange first determined that a proceeding would be
    an appropriate means to remedy its claim, per s. 5 (1)(a)(iv) of the
Limitations
    Act
.

[15]

The trial judge concluded, relying upon
Presley
    v. Van Dusen
, 2019 ONCA 66, 144 O.R. (3d) 305, that Thermal Exchange
    would not have known a proceeding was an appropriate means to seek a remedy
    until October 2015, when it realized it would have to instruct its counsel to
    commence legal proceedings:

the assurances made by the property manager
    and the superintendent of the [Condo Corp.] that they were working on it did
    lead the Plaintiff to the reasonable belief that his problems could and would
    be remedied without the need to have a recourse to the courts I find that the Plaintiff
    did not know and that a person in its situation would not reasonably have known
    that a proceeding would be an appropriate means to seek a remedy until the time
    when he realized that [the Plaintiff] would have to instruct counsel for the
    Plaintiff to commence legal proceedings against the [Condo Corp.].

[16]

Since the civil action was commenced within two
    years of the demand letter, the trial judge held, the limitations defence
    failed.

Issues on appeal

[17]

The appellant submits that the trial judge:

1.

Erred in her application of the legal
    principles in
Presley v. Van Dusen
;

2.

Erred in finding that the claim was first
    discoverable as of the date of the demand letter in October 2015;

3.

Erred in finding that the running account
    suspended the commencement of the limitation period;

4.

Applied the wrong standard to Thermal Exchange to
    rebut the presumption; and

5.

Erred in not considering the defence of laches.

Analysis

(1)

The application of s. 5(1)(a)(iv) of the
Limitations Act

[18]

The
Limitations Act
provides:

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

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

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

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

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

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

(b)  the day on which a
    reasonable person with the abilities and in the circumstances of the person
    with the claim first ought to have known of the matters referred to in clause
    (a).  2002, c. 24, Sched. B,
s. 5 (1)
.

5 (2) A person with
    a claim shall be presumed to have known of the matters referred to in
    clause (1) (a) on the day the act or omission on which the claim is based took
    place, unless the contrary is proved.  2002, c. 24, Sched. B,
    s. 5 (2).

[19]

The trial judge held that Thermal Exchange was
    obligated, pursuant to s. 5(2) of the
Limitations Act
, to rebut
    the statutory presumption that that the claim was discovered on the date that
    the act or omission on which the claim is based took place. To rebut the
    presumption, a plaintiff must establish that its claim was not discovered until
    some other date, employing the four cumulative criteria listed in s. 5(1)(a).

[20]

The trial judge found that the first three criteria
    of discoverability were satisfied as of the date Thermal Exchange first became
    aware that its invoices were unpaid. This would be 30 days after the invoices
    were rendered. For the trial judge, the only remaining issue was therefore when
    Thermal Exchange knew that a proceeding would be an appropriate means to seek
    to remedy [the loss]. She concluded that this was the date that Thermal
    Exchange instructed its lawyer to send the demand letter in October 2015.

[21]

Significantly, the trial judge found that the
    nature of the commercial relationship between the parties was that there was a
    single running account, and whenever Thermal received funds from the Condo
    Corp, it was credited to that account. The trial judge accepted the evidence of
    Mr. Pontaric that he sincerely believed the Condo Corp. had been dealing with
    him in good faith and that Ms. Da Pontes statements that she was
    working on it, meant that his invoices would eventually be paid. He did not
    realize until her email of November 4, 2015 that she was, on behalf of the
    Condo Corp., taking the position that payment by Condo Corp. would be
    contingent on payment by the unit owner.

[22]

The Condo Corp. argued on appeal that the trial
    judge erred in holding that the Ms. Da Pontes assurances were analogous to the
    class of cases summarized in
Presley v. Van Dusen
, drawing on
Presidential
    MSH Corp. v. Marr, Foster & Co. LLP,
2017 ONCA 325, 135 O.R. (3d) 321,
    where a plaintiff postpones bringing an action because of assurances by a
    defendant  who has a superior understanding of the problem  that the
    defendant can remedy the matter, such that litigation would not be necessary.
    The Condo Corp. argues that this case is nothing like
Van Dusen
, given
    that: (1) Thermal Exchange was not relying on the Condo Corp. to fix a
    mechanical problem beyond the expertise of Thermal Exchange; (2) the Condo
    Corp. never promised unequivocally to pay the invoices, but was simply
    stringing a creditor along; and (3) Thermal Exchange waited substantially
    longer to begin a proceeding than the plaintiff in
Van Dusen
did.

[23]

We do not agree that the trial judge erred in
    her analysis. There is nothing in the reasoning in
Van Dusen
that
    would restrict its application to comparative expertise over mechanical
    problems. The salient aspect is that the defendant created a problem, the remedy
    for which was beyond the reach of the plaintiffs understanding, and led the plaintiff
    to rely on it for the remedy. Analogous to the situation in
Van Dusen
,
    the Condo Corp. created a barrier to Thermal Exchange receiving payment (it would
    not pay unless it first received payment from the unit owners, and was not
    taking any steps to getting the unit owners to pay), prevented Thermal Exchange
    from understanding the nature of the problem, and led Thermal Exchange to believe
    that it would take care of the problem.

[24]

The second and third points of purported differentiation
    with
Van Dusen
have little traction given the trial judges finding
    that the juridical relation between Thermal Exchange and the Condo Corp. was
    that of a running account. In the context of a running account, it is
    significant that the Condo Corp. gave Thermal Exchange no reason to believe it was
    disputing the invoices, and that the delays in payment were the result of other
    demands on the property managers time. Given that the indebtedness was
    incurred in the course of a running account, the temporal period is of less
    significance than it was in circumstances such as in
Van Dusen
.

(2)

Date of the demand letter

[25]

The Condo Corp. argues that the trial judge
    erred in finding that the limitation period started in October 2015, when
    Thermal Exchange instructed its solicitor to send a demand letter threatening
    legal action. The Condo Corp. argues that this date was chosen randomly by the
    trial judge, and is inconsistent with the evidence of Mr. Pintaric as to when
    he actually believed he could sue, and when a reasonable person in the
    situation of Thermal Exchange would have known that the commencement of a
    proceeding would be appropriate. We agree that the trial judge erred in finding
    that the limitation period began to run when Mr. Pintaric instructed his lawyer
    to send the demand letter. Nevertheless, and as we explain below, this
    conclusion does not assist the Condo Corp. as we find that the limitation
    period began to run
after
this date.

[26]

Mr. Pintarics evidence was that the threat of
    litigation was more or less idle  it did not reflect a conviction that an
    action was appropriate, but was a means to encourage Ms. Da Ponte to
    reprioritize her time in favour of processing the Thermal Exchange invoices. On
    his evidence, it was not until the November 4, 2016 email from Ms. Da Ponte, in
    which she first communicated the position that the Condo Corp. was not
    obligated to pay, that he first became aware of the nature of the problem he
    was facing, and became conscious that a proceeding would be an appropriate
    means to seek to remedy that problem. From the evidence on the record, supported
    by the trial judges finding that the Condo Corp. was maintaining a running
    account, the time when he realized that [he] would have to instruct counsel
    for the Plaintiff to commence legal proceedings was not the time he first met
    with counsel, nor when the demand letter was issued, but only when Ms. Da Ponte
    advised in the email of November 4, 2016 that the Condo Corp.s position was
    that it had no obligation to pay the invoices. The action was commenced within
    two years of this date and the limitations defence therefore fails.

(3)

The running account

[27]

The Condo Corp. argues that the trial judges
    finding that the account was a running account was a palpable and overriding
    error, contradicted by an Excel spreadsheet jointly tendered by the parties as
    an exhibit. The spreadsheet documents for each invoice rendered from December
    31, 2008 to June 30, 2017, the invoice number, the amount, and whether payment
    had been received. The Condo Corp. submits that the spreadsheet contradicts the
    argument that there was a running account, as it demonstrates that payments were
    attributed to particular invoices.

[28]

The spreadsheet was not tendered as an
    accounting record of either party, although both parties agreed to its accuracy
    in terms of stating the accounts that were rendered and the payments that were
    made. It is not evidence of how Thermal Exchange understood the nature of the Condo
    Corp.s account with it, and therefore does not contradict the trial judges
    finding. The trial judges finding that the Condo Corp. had a running account
    with Thermal Exchange was supported by the evidence of Mr. Pintaric and the
    practice of batch invoicing. The finding was open to her and we would not
    disturb it.

(4)

Did the trial judge apply the wrong standard?

[29]

The Condo Corp. submits that the trial judge
    erred in law by applying the wrong standard for Thermal Exchange to meet to
    rebut the presumption under s. 5(2). The trial judge described the onus as
    very low. The Condo Corp. points to case law from this Court which
    characterizes the onus as relatively low.

[30]

Nothing in this litigation turns on the
    distinction between these two modifiers.

(5)

Laches

[31]

The trial judge did not address the Condo Corp.s
    defence of
laches
. However, the argument could not have succeeded
    given the trial judges factual findings with respect to the
Limitations
    Act
defence. She found that it was reasonable for a person in the position
    of Thermal to rely on the assurances of the property manager and hold off
    commencing an action. Having made that finding, a
laches
defence was
    not available.

DISPOSITION

[32]

The appeal is dismissed. If the parties cannot
    agree on costs, they may make brief written submissions not exceeding 3 pages
    each, in addition to a bill of costs, within 14 days of the release of these
    reasons.

Doherty
    J.A.

B.W.
    Miller J.A.

Sossin
    J.A.