COURT OF APPEAL FOR ONTARIO

CITATION: Nolet v. Fischer, 2020 ONCA 155

DATE: 20200227

DOCKET: C65939

Feldman, Fairburn and Jamal JJ.A.

BETWEEN

David Nolet

Plaintiff (Appellant)

and

Caroline Fischer

Defendant (Respondent)

Joel P. McCoy, for the appellant

Chad Leddy, for the respondent

Heard: October 25, 2019

On appeal from the order of Justice Francine
    Van Melle of the Superior Court of Justice, dated September 28, 2018.

Feldman J.A.:

Introduction

[1]

The appellant was moving out of the respondents
    home after their relationship ended, tripped on the sidewalk while carrying his
    freezer out of the house and injured his left ankle. He sued for damages under
    the
Occupiers Liability Act
, R.S.O. 1990, c. O.2. The respondent
    moved successfully for summary judgment dismissing his claim.

[2]

The motion judge gave two bases for dismissing
    the action. The first was that the respondent as owner and occupier of her premises
    did not owe the appellant a duty of care under the
Occupiers Liability Act

because he was also an occupier of the premises. The second was that if the
    respondent did owe him a duty of care, the appellant did not prove a breach of
    duty, because he did not prove there was any unevenness on the sidewalk that
    constituted a hazard, and if there was, he was aware of it.

[3]

I would defer to the factual findings of the
    motion judge on the second ground and dismiss the appeal on that basis.

[4]

However, in dealing with the first issue, the
    motion judge erred in law in her interpretation of the
Occupiers Liability
    Act
by finding that under the Act, one occupier cannot owe a duty of care
    to another occupier. I would set aside that erroneous interpretation.

Background
    facts and findings of the motion judge

[5]

The parties began dating in 2008. The appellant
    moved into the respondents house in 2010. In 2012, he moved to a separate room
    in the basement as their relationship had ended. He moved out later in April
    2012. While he lived at the respondents house, the appellant contributed approximately
    $500 per month towards expenses. On the day of the move, the appellant and his
    friend were carrying a small freezer when he tripped on the sidewalk and fell,
    causing injury including to his left ankle.

[6]

The appellant claimed he fell on a trip ledge
    between two concrete slabs that was about one to two inches high. The height of
    the trip ledge and whether it constituted a hazard were issues in dispute
    between the parties.

[7]

The respondent had two main defences to the
    action. The first was that under the
Occupiers Liability Act
, one
    occupier of premises owes no duty to another occupier of the same premises. The
    motion judge spent a considerable portion of the reasons making factual findings
    on the issue whether the appellant was also an occupier of the premises and
    concluded that he was.

[8]

The parties were unable to refer the motion
    judge to any case where one occupier had sued another for this type of
    accident. The motion judge accepted the respondents argument that the reason
    there was no case law was because there is no cause of action. The motion judge
    accepted that the legislation was never intended to permit co-occupants to sue
    each other under the
Occupiers Liability Act
. It stands to reason
    that a co-occupant is not an entrant on the premises as envisioned by this
    legislation.

[9]

The respondents second main defence was that if
    she owed a duty of care, the appellant had not proved any breach of duty. On
    that issue, the motion judge found that the appellant had not proved the
    existence of the hazard as he had alleged.

[10]

The appellant said the ledge was one to two
    inches high but there was no independent corroboration of that measurement. The
    respondent admitted there may have been a ¾ inch trip ledge on the right side
    of the sidewalk, but the appellants evidence was that he tripped in the middle
    or on the left side, injuring his left ankle. The photographs in evidence appeared
    to show that the height difference on the left side and in the middle was far
    less than on the right side. The motion judge concluded that: in any event,
    there is no reliable evidence on this point. The motion judge also noted that
    the appellant admitted that he had seen the unevenness before the move-out date
    and that he was therefore aware of a possible hazard. She concluded: [t]hus it
    was not the concealed danger to which he referred in para. 5 of the Statement
    of Claim.

Issue 1: Did the motion judge err in her interpretation
    of the
Occupiers Liability Act
?

[11]

The first issue raised on appeal is whether the
    motion judge erred in law by finding that under the Act, one occupier of
    premises is precluded from suing another occupier of the same premises, or that
    an occupier cannot be a person entering on the premises to whom the other
    occupier owes a duty of care. As indicated, the motion judge spent a
    considerable portion of her reasons determining whether the appellant was also
    an occupier of the respondents premises, and after finding that he was,
    concluded that no duty of care was owed to him because of his status as an
    occupier. In my view, that finding constitutes an error of law. The Act does
    not preclude one occupier from suing another occupier or negate the duty of
    care owed by an occupier to another occupier when that occupier enters on the
    premises.

(a)

On a proper interpretation of the
Occupiers
    Liability Act
, one occupier can owe a duty to another occupier

[12]

The Ontario
Occupiers Liability Act
was
    passed in 1980 in order to replace the common law rules that governed an
    occupiers liability and duty of care owed to persons who enter the occupiers
    premises. The Act followed from the recommendation contained in the Ontario Law
    Reform Commissions 1972

Report on Occupiers Liability
to abolish
    the common law distinction between the duties owed to the common law classes of
    entrants: invitees, licensees, trespassers and contractual entrants, and to
    create one duty of care owed to all entrants, subject to specifically
    articulated exceptions and limitations.

[13]

Section 2 of the Act provides that subject to
    specifically identified exceptions in s. 9 where a higher duty is owed, the Act
    applies in place of the rules of the common law. Section 2 provides:

Subject to section 9, this Act applies in
    place of the rules of the common law that determine the care that the occupier
    of premises at common law is required to show for the purpose of determining
    the occupiers liability in law in respect of dangers to persons entering on
    the premises or the property brought on the premises by those persons.

[14]

This court has made it clear in recent cases
    that the wording of the Act establishes that it is intended to be exclusive and
    comprehensive, effectively constituting a complete code with respect to the
    liability of occupiers: see
MacKay v. Starbucks Corp.
, 2017 ONCA 350, 413
    D.L.R. (4th) 220, at paras. 45-46;
Schnarr v. Blue Mountain Resorts Limited
,
    2018 ONCA 313, 140 O.R. (3d) 241, at paras. 25-26, 59-60, leave to appeal
    refused, [2018] S.C.C.A. No. 187.

[15]

As a result, one must look to the Act to
    determine any occupiers liability issue.

[16]

The Act defines an occupier very broadly in s. 1
    and provides that there can be more than one occupier of the same premises:

occupier includes,

(a) a person who is in physical
    possession of premises; or

(b) a person who has responsibility
    for and control over the condition of premises or the activities there carried
    on, or control over persons allowed to enter the premises,

despite the fact that there is more
    than one occupier of the same premises. (occupant)

[17]

Subsections 3(1) and (3) state:

(1) An occupier of premises owes a
    duty to take such care as in all the circumstances of the case is reasonable to
    see that persons entering on the premises, and the property brought on the
    premises by those persons are reasonably safe while on the premises.

(3) The duty of care provided for in
    subsection (1) applies except in so far as the occupier of premises is free to
    and does restrict, modify or exclude the occupiers duty.

[18]

Section 3 of the Act describes the duty of care
    that is owed by an occupier to persons entering on the premises. While
    occupier and premises are defined terms in the Act, persons entering on
    the premises is not defined in the Act. However, there is nothing in the Act
    to suggest that such persons cannot also be occupiers.

[19]

First, we know from s. 2 that the Act replaces
    the common law duties that were owed to the previously defined classes of
    entrants: licensees, invitees, trespassers, and contractual entrants.
    Therefore, persons entering on the premises includes everyone who fit into
    the former categories. To the extent that those categories could possibly have
    excluded anyone, there is no exclusion that arises from the words or phrase
    persons entering on the premises.

[20]

The respondent argued that at common law, one
    occupier could not sue another, and that the Act did not change that rule.
    However, the respondent could provide no authority for the proposition that
    there was any such prohibition at common law, nor have I found any authority
    that supports the respondents argument.

[21]

Second, the temporal scope of the duty of care that
    extends over the time while on the premises also indicates that the duty is
    owed to other occupiers. The duty extends to property brought onto the premises
    by those persons, and it extends throughout the time period while on the
    premises. Therefore, after a person enters on the premises, for however long
    that person or their property remains on the premises, the occupier owes the
    person the prescribed duty of care. The duty is therefore owed to a person who
    remains on the premises including a person who lives there.

[22]

Third, the Act contains a number of exclusions
    from the duty of care. The statutory interpretation principle
expressio
    unius
 or implied exclusion applies here; if the legislature had also intended
    to exclude other occupiers from persons entering on the premises, it would
    have done so along with the other exclusions: Ruth Sullivan,
Sullivan on
    the Construction of Statutes
,
6th ed. (Markham: LexisNexis, 2014),
    at p. 248. As a complete code, the Act contains all restrictions, limitations
    and exceptions to when the occupiers duty of care arises.

[23]

One exception is in s. 3(3) where the occupier
    can restrict, modify or exclude the duty. Then, under s. 4, the duty does not
    apply to risks that are willingly assumed by the person who enters on the
    premises, subject to the qualifier, that even then, the occupier still owes a
    duty not to create a danger with the deliberate intent to harm or to act with
    reckless disregard of the person or the persons property. Subsections 4(2), (3)
    and (4) address criminal entrants, as well as trespassers and people using other
    peoples property as unpaid recreational space, and provide that in certain
    situations these entrants will be deemed to have willingly assumed all risks
    for the purpose of subsection (1). Finally, s. 9 is not an exclusion per se,
    but maintains previously imposed higher obligations for innkeepers, common
    carriers and bailees, and preserves the obligations of employers to employees.

[24]

Given this explicit list of exclusions to the
    standard occupiers duty of care, and given the absence of other occupiers
    from this list, I conclude that the legislature did not intend such an
    exclusion. This analysis is reinforced by the fact that the Act clearly
    contemplates the possibility of multiple occupiers of the same premises.

[25]

To conclude, there is no language or provision
    of the Act that one occupier does not owe the duty of care to another occupier,
    or that provides that when an occupier enters on the premises they are not a
    person entering on premises for the purpose of the Act. Nor is there any
    basis to read any such legal restriction into the Act. While persons may enter
    onto premises for many different reasons and may leave quickly or stay
    indefinitely, the Act creates one duty that is owed to all such persons
    including those who are also other occupiers.

(b)

In spite of the existence of the duty, the
    paucity of cases may have other explanations

[26]

As the motion judge noted, the parties could not
    find any case where one occupier was found liable to another occupier under the
    Act.

[27]

One explanation may be the defence of the
    willing assumption of risk. Whether it could be argued in any particular case
    where there is more than one occupier, that a person who is an occupier and who
    enters on premises has willingly assumed some or all of the safety risks
    associated with the premises for the reason that the person is also an
    occupier, would be decided on a case-by-case basis, depending on such factors
    as the nature of the relationship between the occupiers and the degree of
    control they each may have over the premises.

[28]

Another could be the unavailability of
    insurance. For example, where one spouse has an accident in the family home,
    that spouse is unlikely to sue the other unless there is insurance coverage
    available, and some insurance policies explicitly exclude from coverage claims
    by a resident family member.

[29]

For example, in
Traders General Insurance
    Company v. Gibson
, 2019 ONCA 985, Ms. Gibson had a homeowners insurance
    policy that covered her for amounts she became legally liable to pay for
    unintentional bodily injury arising out of her ownership or occupancy of her
    home. Ms. Gibsons adult daughter lived with her in the home. The daughter was
    injured when she fell off the porch and the porch railing came down with her.

[30]

The policy contained an exclusion for claims for
    bodily injury to you or any person residing in your household other than a
    residence employee. The court found that the daughter was in residence but not
    as an employee and therefore coverage for her injuries was excluded under the
    policy.

[31]

It was clear in that case that the insurance
    policy would cover claims by a number of potential occupiers against the
    homeowner, including residence employees or any person not in residence but left
    in physical possession of the premises. In other words, the policy language
    accepts that one occupier can be legally liable to pay another occupier for
    unintentional bodily injury arising out of the use or occupation of the
    premises. It then limits its coverage to indemnify for such liability by the
    specific wording of the policy.

[32]

While there may be explanations such as these for
    why, in practice, occupiers do not often recover from other occupiers, there
    exist situations in which it is obvious that this should be possible. For
    example, because the definition of occupier is so broadly framed, some people
    are occupiers while they are in physical possession of premises who have no
    control over the premises maintenance or repair. Depending on the
    circumstances, such a person may be, for example, a friend or grandparent
    visiting overnight. While that friend or grandparent may have a duty to warn
    others who may enter, such as a delivery person or a repair person, of hazards
    that they are aware of, there is nothing in the Act that says that the owner of
    the premises does not owe the occupiers duty of care to the overnight guests,
    or that they are not persons entering on the premises because they are also
    occupiers within the definition contained in s. 1.

[33]

To conclude, the apparent paucity of case law
    where one occupier has sued another does not undermine the proper
    interpretation of the Act which does not preclude such claims on the sole basis
    that the person to whom the duty is owed is also an occupier of the premises.

[34]

As the motion judge erred in law by finding that
    the respondent did not owe any duty of care to the appellant under the Act, the
    appeal turns on whether the motion judge erred in finding in the alternative,
    that there was no breach of duty.

Issue 2: Did the motion judge err in finding there was no breach of
    the duty of care?

[35]

As this was a motion for summary judgment, the
    motion judge had to be satisfied that she could decide the issues based on the
    record before her and that there was no genuine issue requiring a trial. The
    motion judge was satisfied that the record before her was complete. She
    observed that the facts were largely uncontroverted and it was a case of
    applying the law to the facts.

[36]

The appellant submits that the motion judge failed
    to consider all the evidence before her and that her reasons for rejecting his
    claim were inadequate. I would not accept those submissions.

[37]

The duty of care owed by an occupier to a person
    who enters on the premises is to take such care as in all the circumstances of
    the case is reasonable to see that persons entering on the premisesare
    reasonably safe while on the premises. The duty is to take reasonable care
    it is not absolute.

[38]

The motion judge was not satisfied that the
    appellant had proved a breach of that duty for the following reasons which I
    synthesize as follows. 1) Although it is clear from the photos that there is an
    unevenness or ledge between two of the sidewalk slabs, the appellant did not
    prove that the height discrepancy created was significant enough to constitute
    a hazard. He did not provide measurements of the height differential to
    substantiate his claim that the ledge was 1-2 inches as opposed to ¾ inch. Further,
    he tripped on the left side of the slab where the ledge was lower than on the
    right side. 2) The appellant was aware of the unevenness between the concrete
    slabs so that he was aware of the need to take care to avoid the possibility of
    tripping there. The motion judge therefore rejected the appellants submission
    that the trip ledge was a concealed danger.

[39]

While the motion judge did not state explicitly
    why the respondent met her duty of care, it is clear from her reasons that she
    found that the appellant had not proved that the respondent failed to take
    such care as in all the circumstances of the case is reasonable to see that
    the condition of the sidewalk was reasonably safe. I see no error in that
    conclusion. It was open to the motion judge to view the photographs in
    conjunction with the evidence of the witnesses and to make a finding regarding
    the safety condition of the sidewalk and that the appellant was aware of that
    condition.

[40]

I also see no error in the motion judges
    conclusion that there was no genuine issue for trial. The evidence of how the
    accident happened was explored under oath with all the witnesses, and
    photographs from the time of the accident were in the record. The motion judge
    was in as good a position as a trial judge to look at the photos and assess
    whether the ledge constituted a safety hazard.

Other issues raised by the appellant

[41]

In his factum the appellant raised a number of
    other issues, some of which are dealt with by the reasons above. I address the
    three outstanding issues here.

[42]

First, the appellant argued that the motion
    judge erred by ignoring binding precedent that [w]hile there is no hard and
    fast rule, it is well established that a trip ledge, and specifically one that
    is the size of ¾ of an inch to 2 inches, is a hazard. In support of this
    proposition the appellant cites two cases where a ¾ inch to 1 inch ledge and a 1
    to 1.5 inch ledge were each found to breach the occupiers standard of care:
Ford
    v. Windsor (City)
,
1955 CarswellOnt 492 (C.A.);
Litwinenko v.
    Beaver Lumber Co.

(2008), 237 O.A.C. 237 (Div. Ct.). Neither of
    these cases says that a ¾ inch ledge is always a hazard. In fact,
Ford

states [i]t is a question of fact in each case: at para. 1.

[43]

Second, the appellant argued that the motion judge
    failed to provide sufficient reasons for her findings on credibility. There is
    no specific finding on credibility. With respect to the motion judges finding
    whether or not the ledge was high enough to constitute a hazard, it is clear
    that she relied on the contemporaneous photos. To the extent that credibility
    influenced her decision on other issues (such as how the appellant fell), her
    findings with respect to the existence of a hazard provide a sufficient
    justification and explanation for disbelieving the appellant.

[44]

Third, the appellant argued that the motion
    judge erred by failing to allow the parties to make submissions on costs and
    sought leave to appeal the costs award. The motion judge received costs
    outlines from both parties and ultimately awarded the costs of the entire
    action to the respondent on a partial indemnity basis in the amount of $30,000.
    I see no reviewable error with that process.

Conclusions

[45]

The motion judge erred in law in her
    interpretation of the
Occupiers Liability Act
. The Act does not
    preclude one occupier from suing another occupier for breach of the statutory
    duty to take reasonable care for the safety of persons entering on the premises
    and the property they bring onto the premises.

[46]

However, I would dismiss the appeal on the
    alternative ground articulated by the motion judge, that the respondent did not
    breach her duty of care.

[47]

Counsel agreed at the end of oral argument that
    if on appeal each party were to be successful on one of the two main issues,
    then there would be no costs of the appeal.

[48]

With respect to the costs of the motion, which
    were $30,000 to the respondent, the appellant submitted that if he were to be
    successful on the issue of the interpretation of the
Occupiers Liability
    Act
, then the costs below should be reduced by $5000 to $10,000. I
    consider that a reasonable submission.

[49]

In the result, I would order no costs of the
    appeal, and that the costs below be reduced by $7,500.

Released: K.F. February 27, 2020

K. Feldman J.A.

I agree. Fairburn J.A.

I agree. M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: P.Y.
    v. Catholic Childrens Aid Society of Toronto, 2020 ONCA 98

DATE: 20200211

DOCKET: C66442

Brown, Harvison Young and Zarnett JJ.A.

BETWEEN

P.Y. and A.Y.

Plaintiffs/Responding
    Parties

(Appellants)

and

The Catholic Childrens Aid Society of Toronto,
    Mary McConville and Janice Robinson, Rena Knox, The Office of the Childrens
    Lawyer of Toronto, Katherine Kavassalis, Frances Ann Gregory, Fatma A. Khalid,
    Haeley Gaber-Katz, The Hospital for Sick Children,
Lana Dépatie,
    Michelle Sala
and Conseil Scolaire Catholique Mon Avenir

Defendants/
Moving
    Parties

(Respondents)

P.Y., acting in person

A.Y., acting in person

Charles Sinclair, for the respondent Haeley Gaber-Katz

Carole Jenkins, for the respondents The Catholic
    Childrens Aid Society of Toronto, Mary McConville, Janice Robinson and Rena
    Knox

Domenico Polla, for the respondents The Office of the
    Childrens Lawyer of Ontario and Katherine Kavassalis

Monika Korona, for the respondent Michelle Sala

Erika Tower, for the respondent Fatma A. Khalid

Samaneh Frounchi, for the respondent Lana Dépatie

Daniel Bassili, for the respondent Conseil Scolaire
    Catholique Mon Avenir

Ruben Lindy, for the respondent Frances Ann Gregory

Chloe Richardson, for the respondent The Hospital for
    Sick Children

Heard: January 22, 2020

On appeal from the
    order of Justice Darla A. Wilson of the Superior Court of Justice, dated December
    12, 2018, with reasons reported at 2018 ONSC 5381 and 2018 ONSC 7097.

REASONS FOR DECISION

[1]

By order dated October 7, 2013, Curtis J. found the appellants four children
    were in need of protection and made them Crown wards, without access to the
    parents: 2013 ONCJ 585.

[2]

The appellants appeal to the Superior Court of Justice was dismissed:
    2014 ONSC 6526. Their further appeal to this court was dismissed by order dated
    July 3, 2015: 2015 ONCA 493. The Supreme Court of Canada dismissed the
    appellants application for leave to appeal on December 24, 2015: [2015]
    S.C.C.A. No. 415.

[3]

The appellants then commenced this action on December 27, 2017. The
    defendants are individuals or organizations that played some role in the child
    protection proceedings, either as parties, counsel, witnesses, experts, or
    entities which provided information that was used to initiate or support the
    proceedings.

[4]

In the summer of 2018, two of the defendants, psychologists Michelle
    Sala and Lana Dépatie, wrote to the Registrar of the Superior Court of Justice
    pursuant to r. 2.1.01(6) requesting the dismissal of the proceeding on the
    basis that it was frivolous, vexatious or otherwise an abuse of the process of
    the court.

[5]

By reasons dated September 13, 2018, the motion judge directed that the registrar
    give the appellants notice that the court was considering making an order
    under Rule 2.1.01 dismissing this action against the Defendants Sala and
    Depatie: 2018 ONSC 5381, at para. 9.

[6]

Rule 2.1.01(3)2 permits a plaintiff to make written submissions to the
    court after receiving such a notice. The appellants wrote to the registrar on
    September 16, 2018 requesting more time to work on their submissions. They
    repeated that request in an October 4, 2018 letter to the registrar. They
    contended that they had a very well-founded claim against the defendants Sala
    and Depatie. The appellants took the position that it was very premature to
    deal with submissions at this stage.

[7]

On November 27, 2018, the motion judge released reasons dismissing the
    action against Sala and Dépatie pursuant to Rule 2.1.01 as frivolous and
    vexatious. On December 12, 2018 the motion judge released amended reasons in
    which she dismissed the action against all defendants: 2018 ONSC 7097.

[8]

The appellants appeal the dismissal of their action.

[9]

Shortly before the hearing of the appeal, the appellants filed a
    three-volume motion for leave to adduce fresh evidence. The defendants opposed
    its admission.

[10]

The materials for which the appellants seek leave to introduce do not
    constitute fresh evidence that was unavailable at the time the motion judge
    directed submissions under r. 2.1.01. Instead, the materials cover a period of
    time from prior to the apprehension of the children through to the end of the
    child protection proceedings. The appellants want to introduce the materials to
    demonstrate that there is a basis for their action and that it is not
    frivolous, vexatious or an abuse of the process of the court.

[11]

As this court stated in
Khan v. Krylov & Company LLP
, 2017
    ONCA 625, 138 O.R. (3d) 581, at para. 12, the issue on a r. 2.1.01 review is
    whether the hallmarks of frivolous, vexatious or abusive litigation are plainly
    evident on the face of the pleading. Rule 2.1.01 is not designed to be an
    alternative to an evidence-based motion for summary judgment or a trial: see
    also
Scaduto v. The Law Society of Upper Canada
, 2015 ONCA 733, 343
    O.A.C. 87, at paras. 11-13. As the statement of claim is the focus of a r. 2.1.01
    review, we have considered the materials filed by the appellants for the
    limited purpose of understanding the scope of the allegations they are
    asserting.

[12]

The appellants submit that the motion judge erred in concluding that
    their statement of claim disclosed on its face the hallmarks of frivolous,
    vexatious or abusive litigation. We are not persuaded by that submission.

[13]

As the motion judge noted, the appellants statement of claim is 70
    pages in length. The motion judge described the claim against Sala and Dépatie
    as one for damages caused by their negligence in the provision of
    psychological services and in preparation of reports which were relied on by
    the [Catholic Childrens Aid Society]: 2018 ONSC 5381, at para. 7. The motion
    judge also observed that the claim includes all sorts of attacks on a
    multitude of defendants and [n]owhere is it set out how the alleged
    negligence led to damages.

[14]

The motion judge did not misread or misunderstand the claims asserted by
    the appellants in their action against Sala and Dépatie. Their statement of
    claim discloses that the core elements of their allegations concern the events
    leading up to their childrens apprehension in 2011, together with numerous
    allegations that the resulting child protection proceeding was marked by the
    withholding of evidence, improper reports, the alteration of evidence, and
    false evidence. The appellants allege that they were greatly wronged by those
    involved in the child protection proceeding, the various steps taken during
    that proceeding, and its result. They seek damages of well over $10 million.

[15]

When the statement of claim is read in light of the reasons issued by
    three levels of court in the child protection proceeding and the fresh
    evidence tendered by the appellants, it is clear that in their action the
    appellants seek to relitigate the issues previously decided in the child
    protection proceeding. Such an effort to relitigate issues already decided
    constitutes an abuse of the process of the court. Consequently, we see no error
    in the motion judges conclusion that the proceeding against Sala and Dépatie
    appears on the face of the statement of claim to be frivolous, vexatious or
    otherwise an abuse of the process of the court.

[16]

As a result, we dismiss the appeal from the order dismissing the action
    as against the defendants Sala and Dépatie who made the request for a review under
    r. 2.1.01(6).

[17]

However, we allow the appeal in respect of the dismissal of the action
    against the other defendants. The motion judges initial September 13, 2018
    endorsement stated that she was only considering making an order under r.
    2.1.01 dismissing the action against Sala and Dépatie and she invited
    submissions from the appellants in respect of that proposed order. Her reasons
    of November 28, 2018 were limited to dismissing the action against those two
    defendants.

[18]

At some point the motion judge decided on her own initiative to expand
    her order, and her amended December 12, 2018 reasons dismissed the action
    against all defendants.

[19]

Rule 2.1.01(1) gives the court the power, on its own initiative, to
    dismiss a proceeding. But rr. 2.1.01(2) and (3) stipulate certain procedures that
    a court must follow before making such an order, unless the court directs
    otherwise. One of the required procedures is giving notice to the plaintiff of
    the order the court is proposing to make and an opportunity for the plaintiff
    to make submissions in relation to that proposed order. If the plaintiff does
    not make submissions, then the court may make the order for which it gave notice
    without further notice to the plaintiff: r.2.1.01(3)1-3.

[20]

The motions judge did not give the appellants notice of her intention to
    amend her limited November 27, 2018 order to one dismissing the action against
    all the defendants. Nor did the motion judge expressly make an order that a
    procedure other than that set out in r. 2.1.01 was to be followed. Those
    omissions, the respondents contend, do not amount to procedural error by the
    judge. They point to a series of cases from this court in support of their
    submission that where not all defendants requisition a r. 2.1.01 review and no
    opportunity for submissions has been given in respect of a dismissal against
    other defendants, it is open to the reviewing judge to dismiss the action
    against all defendants where the outcome would have been the same given the
    nature of the claims asserted by the appellants against the other defendants:
Obermuller
    v. Kenfinch Co-Operative Housing Inc.
, 2016 ONCA 330, at paras. 3-5;
Van
    Sluytman v. Muskoka (District Municipality)
, 2018 ONCA 32, 26 C.P.C. (8th)
    130, at para. 19;
Kimaev v. Sobeys Inc.
, 2019 ONCA 681, at para. 1.

[21]

In our view, those cases are distinguishable from the present one. The
    distinctive feature of the present case is that in her September 13, 2018
    endorsement the motion judge directed the registrar to give the appellants
    notice that she was considering making an order dismissing the action against
    only two of the defendants, Sala and Dépatie. Although the blunt instrument of
    r. 2.1.01 should be applied robustly to weed out litigation that is clearly
    frivolous, vexatious or an abuse of process, the bluntness of the rule and the
    significant consequences of its application mandate its fair application:
Scaduto
,
    at para. 8;
Khan
, at para. 12. Fairness is especially important where
    the plaintiff is self-represented.

[22]

Where the court gives notice under r. 2.1.01 that it is considering the
    dismissal of a proceeding against only some of the defendants, procedural
    fairness precludes it from dismissing the proceeding against the other
    defendants without first giving the plaintiff notice of its intention to do so
    and an opportunity to make submissions pursuant to r. 2.1.01(3)2. The motion
    judge did not provide the appellants with such notice or provide any explanation
    in her December 12, 2018 reasons about why she decided to follow a different
    procedure. In the circumstances of this case, those omissions amounted to
    reversible procedural error.

[23]

For those reasons, the appeal from the dismissal of the action against
    the defendants, Michelle Sala and Lana Dépatie is dismissed. However, we allow
    the appeal in respect of the dismissal of the action against the other
    defendants. We direct that any future requests made by any remaining defendant
    pursuant to r. 2.1.01 be placed before another judge of the Superior Court of
    Justice for consideration.

[24]

The appellants shall pay the respondents Michelle Sala and Lana Dépatie their
    costs of the appeal fixed in the amount of $5,000 each, inclusive of
    disbursements and applicable taxes, for a total of $10,000. The other
    respondents collectively shall pay to each appellant the sum of $2,500 (for a
    total of $5,000) in respect of the appellants costs of the appeal, inclusive
    of disbursements and applicable taxes.

David Brown J.A.

Harvison Young J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Patterson v. Peladeau, 2020 ONCA 137

DATE: 20200220

DOCKET: C65518

MacPherson, Sharpe and Jamal JJ.A.

BETWEEN

Ronald A. Patterson,
    Nadine J. Chapman

and Ronda Lee Patterson

Plaintiffs (Appellants)

and

Pascal Peladeau

Defendant (Respondent)

Joseph Y. Obagi and Thomas P. Connolly, for the
    appellants

Joseph W.L. Griffiths and Matthew G.T. Glass, for the
    respondent

Heard: February 6, 2020

On appeal from the judgment of Justice Charles T.
    Hackland of the Superior Court of Justice, dated May 14, 2019.

By the Court:

INTRODUCTION

[1]

This appeal arises from the trial judges dismissal of motions to strike
    the jury and to declare a mistrial in a motor vehicle personal injury action:
Patterson v. Peladeau
, 2018 ONSC 2625, 80 C.C.L.I. (5th) 213. During the
    jurys deliberations, the jury asked the court a question that revealed that it
    may have accessed inappropriate extrinsic information, namely, a statutory provision
    that was irrelevant and inapplicable to this case, but which, if applied, could
    impact the apportionment of liability.

[2]

The trial judge questioned the jury foreperson, who revealed that he had
    found the provision on an Ontario government website on the weekend at the
    beginning of the deliberations, and then shared it with the other jurors. The
    foreperson also revealed that this was the full extent of the extrinsic
    information and that no other juror had accessed the internet in relation to
    the case.

[3]

Based on these answers, the trial judge was satisfied that he did not
    need to question the other jurors and that this issue, while serious, could be
    dealt with through a correcting charge. He dismissed the appellants pre-verdict
    motion to strike the jury, as well as their post-verdict motion to declare a
    mistrial.

[4]

The appellants now appeal to this court. They contend that the trial
    judge failed to conduct a proper inquiry as to what extrinsic information the
    jury had obtained and then failed to analyze its prejudicial effect. The
    appellants assert that the trial judge should have polled every juror or
    permitted counsel to question them.

[5]

For the reasons that follow, we do not agree with the appellants
    submissions and dismiss the appeal.

BACKGROUND

(i)

The accident

[6]

On December 15, 2009, at 5:45 a.m., the appellant Ronald Patterson was
    hit by the respondents car while he was standing on the road next to his truck.
    The appellants truck was parked in complete darkness facing oncoming traffic in
    the driving lane of a two-lane country road. The appellant was trying to tow
    his van from a ditch that he had driven into after skidding on black ice
    earlier that morning.

[7]

Although the appellants truck was parked with its hazard lights activated
    and headlights on low beams, the respondent, who was travelling at about the
    speed limit, thought the lights were from an oncoming vehicle. He did not
    realize that the truck was parked and fully blocking his lane of travel until
    it was too late.

[8]

The respondent clipped the appellants truck, struck him, and collided
    with his van, which was parked in the ditch. While the respondent was not hurt,
    the appellant incurred a fractured pelvis and other significant injuries.

[9]

The appellant, together with his wife and daughter, claimed over $4
    million against the respondent in respect of his injuries. In addition, his
    wife and daughter claimed damages for loss of care, guidance, and companionship
    under the
Family Law Act
, R.S.O. 1990, c. F.3.

(ii)

The jurys question

[10]

One
    of the key issues at trial was the apportionment of liability for the accident.
    The trial judge instructed the jury that the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8, sets out the rules and standards for the operation of
    motor vehicles and the use of roads, and advised them that s. 170(12) provides
    in relevant part that no person shall park or stand a vehicle on a highway in
    such a manner as to interfere with the movement of traffic. He instructed the
    jury that because it was manifestly obvious that the appellant had
    contravened this provision, the appellant was at least partially responsible
    for the accident, but it was for the jury to decide on the parties relative
    degree of fault.

[11]

After
    hearing eight weeks of evidence, closing arguments, and the trial judges jury
    charge, the jury retired to deliberate on a Friday afternoon.

[12]

The
    following Monday morning, the jury returned with several questions for the
    trial judge. The trial judge and counsel agreed that one question was quite obviously
    based on (without referring to by name) s. 17(2) of the
Fault Determination
    Rules
, R.R.O. 1990, Reg. 668, a regulation under the
Insurance Act
,
    R.S.O. 1990, c. I.8, for resolving property damage claims between insurers, but
    which was irrelevant to the liability issues in the action.

[13]

The
    jurys question on this point was as follows:

In the highway traffic act there is a part which states It is
    illegal to park on a roadway outside a city town or village it also says if a
    vehicle is struck while illegally parked, then the parked vehicle is 100% at
    fault.

[14]

Section
    17(2) of the
Fault Determination Rules
provides as follows:

If automobile A is illegally
    parked, stopped or standing when it is struck by automobile B and if the
    incident occurs outside a city, town or village, the driver of automobile A
    is 100 per cent at fault and the driver of automobile B is not at fault for
    the incident.

(iii)

The trial judges inquiry into the extrinsic information

[15]

The
    trial judge conferred with counsel and it was agreed that he would question the
    jurors individually in open court to determine how they had obtained the
Fault
    Determination Rules
.

[16]

The
    first juror questioned, the foreperson, revealed that he was the source of the
    information and that he had found it on an Ontario provincial government website.
    He confirmed that he had not accessed or shared any other extrinsic information
    with the other jurors and that he was the only juror who had accessed the
    internet.

[17]

Having
    obtained this information, the trial judge concluded that it was unnecessary to
    question the other jurors. As he later noted in his reasons dismissing the mistrial
    motion, the
Fault Determination Rules
had been in the jury room for
    perhaps two hours as the jury discussed liability and formulated its questions
    for the court. He instructed the jury to cease discussion of the liability
    issues until he could further review their questions with counsel and provide a
    response.

[18]

The
    trial judge then canvassed counsel for their positions. Appellants counsel
    submitted that every juror should be polled and that counsel should have the
    right to ask these jurors questions to flush out perhaps in some more detail what
    the facts are. Respondents counsel objected to this. In his view, the court
    had already identified the one juror who was the source of the extrinsic
    information and had determined that it had been accessed through an Ontario
    government website. He submitted that counsel asking the jurors questions might
    invite further disclosure of their deliberations, which would itself risk a
    mistrial.

[19]

The
    trial judge expressed his strong inclination to issue a correcting charge. He provided
    counsel with a draft charge and asked them to reflect on their positions overnight.

(iv)

The motion to strike the jury

[20]

The
    next day, the appellants brought a motion to strike the jury and to proceed
    with the remainder of the trial by judge alone on the basis that extraneous
    material had been introduced into the jury room. The motion also sought an
    order that the trial judge conduct an inquiry and question each juror about
    whether they had obtained extrinsic information during deliberations and ask
    the foreperson to produce the results of his internet searches.

[21]

The
    trial judge dismissed the motion. He was satisfied that the court had isolated
    the source and extent of the issue and that the question made clear that the
    jury was seeking further direction from the court with respect to the
    information it had found. He concluded that the issue could be addressed
    through responses to the jurys questions and an appropriate correcting charge,
    accompanied by a strong warning to the jurors not to conduct any further
    extrinsic research.

[22]

The
    trial judges correcting charge, which he read to the jury and provided to them
    in writing, made clear that the only part of the
Highway Traffic Act
relevant to this case was s. 170(12), on which the trial judge had already
    instructed the jury. The trial judge asked the jury to re-read the relevant
    part of the charge. He also emphasized that the
Fault Determination Rules
had
no relevance
 (underlining in original) to the liability issues in
    this lawsuit and that the jurors were to disabuse their minds of any
    consideration of this regulation. He stated that the jurys question reflected
    that a member of the jury had accessed the internet. He reiterated the instruction
    he gave at the beginning of the trial that
it is completely improper to research
    or Google law and there must be no reoccurrence of this
 (bold in
    original). Finally, the trial judge stressed that the jurys verdict
must
    be based exclusively on the evidence entered into the record in this trial and
    on the legal directions which I have given to you  There is to be no
    independent research conducted by any juror. I will answer any questions you
    have on the law or on any other matter
 (bold in original).

(v)

The jurys verdict

[23]

Three
    days later, the jury returned its verdict. The jury found the appellant 73%
    contributorily negligent in the collision and the respondent 27% at fault. As a
    result of the jurys verdict and assessment of damages, the trial judge awarded
    judgment to the appellants in the amount of $309,032.34.

(vi)

The motion for a mistrial

[24]

After
    the verdict, the appellants moved for a mistrial, again relying principally on the
    jury forepersons inappropriate internet research.

[25]

The
    trial judge dismissed the motion. He rejected the appellants claim that it
    could be inferred from the verdict that the jury ignored the courts correcting
    charge and relied on the
Fault Determination Rules
. He concluded that
    the jurys fault apportionment was amply justified by the evidence presented
    in this case.

[26]

Further,
    the trial judge stated that while he shared the appellants concern that a
    juror had engaged in internet research concerning the law, he was satisfied
    that the jury respected the correcting charge and disabused themselves of any
    further consideration of the
Fault Determination Rules
.

ANALYSIS

[27]

The
    appellants make two arguments on appeal. They submit: (1) the trial judge
    failed to conduct a proper inquiry to determine the nature and scope of the
    extrinsic information that the jury obtained; and (2) the trial judge failed to
    appropriately analyze the prejudicial effect of this information. If either
    argument is accepted, the appellants submit that the appropriate remedy is a
    new trial.

(1)

Did the trial judge fail to conduct a proper inquiry to determine the
    nature and scope of the extrinsic information that the jury obtained?

[28]

The
    appellants first ground of appeal asserts that the trial judge misapprehended
    the evidence by failing to assess the nature and extent of the extrinsic
    information, thereby denying the appellants the right to know exactly what the
    jury considered. They contend that the trial judge should have questioned or
    polled each juror to determine what extrinsic information the jury received,
    and that failing to do so resulted in a miscarriage of justice.

[29]

We
    do not accept this submission.

[30]

A
    jury verdict may be impeached where the jury acquires extrinsic information if,
    based on an examination of the record, there is a
reasonable
    possibility that the information had an effect on the jurys verdict
. This
    test involves a contextual, case-by-case analysis that requires a link between
    the extrinsic information and the jurys verdict: see
R. v. Pannu
,
    2015 ONCA 677, 127 O.R. (3d) 545, at paras. 71-74, leave to appeal refused,
    [2015] S.C.C.A. No. 498;
R. v. Farinacci
, 2015 ONCA 392, 335 O.A.C.
    316, at para. 26; and
R. v. Pan; R. v. Sawyer
, 2001 SCC 42, [2001] 2
    S.C.R. 344, at para. 59.

[31]

Where
    the trial judge learns that the jury acquired extrinsic information before the
    jurys verdict, and then conducts an inquiry and decides as to the suitability
    of individual jurors or the jury as a whole continuing with the trial, this
    court will defer to the trial judges decision, absent legal error, misapprehension
    of the evidence, or patent unreasonableness:
Pannu
, at para. 72.

[32]

Here,
    in our view, the trial judge did conduct a proper inquiry and made findings as
    to the nature and extent of the extrinsic information the jury received. He found
    on the evidence before him that only one juror had accessed extrinsic
    information, limited to the
Fault Determination Rules
obtained from an
    Ontario provincial government website. These findings were supported by the
    evidence.

[33]

The
    finding that the only extrinsic information accessed was the
Fault
    Determination Rules
from an Ontario government website was based on the
    following exchanges:

THE COURT: Can you help us, [Juror #1]. What, like, where, has
    somebody Googled that information? I guess so. Its an obvious.

JUROR #1: Provinc-, Provincial, Ontario Provincial, theres the
    Traffic Act.

THE COURT: Right?

JUROR #1: And so somebody has found it on the internet, yes,
    through the Ontario Provincial site.

THE COURT:  Now, has the Googling information gone beyond this
    particular statutory reference?

JUROR #1: I dont believe so. In terms of  I, Im not sure of
    the question.

THE COURT: Oh, yes, well, has, doctors been Googled or

JUROR #1: No.

THE COURT: Right, so, its restricted to, if you like, law
    issues; is it?

JUROR #1: Correct.

THE COURT:  So, in any event, as, as far as you know the only
    inter-, internet sort of input into your discussions has been with respect to
    what were talking about here; that, thats right?

JUROR #1: Yes.

THE COURT:  Is, is just, is only one of the jurors Googling
    stuff or has there been more, do you know?

JUROR #1: On this particular issue, only one.

[34]

The
    finding that only one juror  juror #1, the foreperson  had accessed the
    internet and shared information obtained from the internet with the other
    jurors was based on the following exchange:

THE COURT: All right; and there, and youre telling me, sir,
    that there is only one of the six jurors who has actually accessed the internet
    or shared that with people?

JUROR #1: Yes.

THE COURT: Okay; and I, I think we might just want to chat with
    that one person just to see how the scope of, of his investigations, if I can
    put it that way and, and who would that be if you dont mind?

JUROR #1: Me.

[35]

The
    appellants challenge to the trial judges inquiry involved a parsing of the
    transcript of these exchanges in particular. The appellants claimed that the
    exchanges were somewhat equivocal as to whether other laws might also have been
    researched. However, the trial judge saw and heard the juror and drew a
    contrary conclusion, in circumstances where the jury had forthrightly raised
    the issue with the court and had sought clarification. The trial judge was
    entitled to believe the jurors answers and to reach the conclusions he did. The
    mere possibility that these exchanges may be susceptible to the different inference
    posited by appellants counsel does not rise to the high threshold required for
    appellate intervention based on a misapprehension of the evidence. As the
    Supreme Court cautioned in
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 35, at para. 56:

[T]he narrowly defined scope of appellate review dictates that
    a trial judge should not be found to have misapprehended or ignored evidence, or
    come to the wrong conclusions merely because the appellate court diverges in
    the inferences it draws from the evidence and chooses to emphasize some
    portions of the evidence over others.

[36]

To
    conclude, the trial judge did not misapprehend the evidence as to the nature
    and scope of the extrinsic information reviewed by the jury. He identified the particular
    individual who obtained the specific extrinsic information at issue, isolated
    how he had obtained it, and confirmed that no other information had been
    obtained. Having done all that, the trial judge was entitled to conclude that he
    did not need to question or poll every juror or to permit counsel to do so.

(2)

Did the trial judge fail to analyze the prejudicial effect of the extrinsic
    information obtained by the jury?

[37]

The
    appellants second ground of appeal asserts, in the alternative, that even assuming
    the extrinsic information obtained by the jury was limited to the
Fault
    Determination Rules
, that information alone was extremely prejudicial to
    the appellants. The appellants contend that there is a reasonable possibility
    that this extrinsic information had an effect on the jurys verdict, which
    should therefore have resulted in a mistrial.

[38]

The
    appellants make three points in this regard.

[39]

First,
    the appellants assert that the trial judge failed to consider the prejudicial
    nature of the extrinsic information and its ability to affect the jurys
    verdict.

[40]

We
    do not agree with this submission. The trial judge undoubtedly did consider the
    prejudicial nature of the extrinsic information  that is why he gave the jury a
    correcting charge. As he explained in refusing to declare a mistrial, the real issue
    was whether the correcting charge is sufficient in the circumstances and
    whether there is any cogent reason to believe that the jury declined to follow
    it. The sufficiency of the correcting charge is addressed below.

[41]

Second,
    the appellants assert that the jury verdict used the terminology illegally
    parked in the verdict sheet, a phrase included in the
Fault Determination
    Rules
but not in the
Highway Traffic Act
. The appellants suggest
    that this raises a reasonable possibility that the jury applied the
Fault
    Determination Rules
, despite the correcting charge.

[42]

We
    do not accept this submission. The trial judge noted that the jury specified,
    as one of the particulars of the appellants negligence, the violation of s.
    170(12) of the
Highway Traffic Act
, which was drawn to the jurys
    attention in the jury charge and deals with parking a vehicle on a roadway and
    impeding traffic. He added that while s. 170(12) does not contain the word illegal,
    illegal is a term of general usage connoting a contravention or violation of
    the law and is not a concept specific to the
Fault Determination Rules
.
    Moreover, the trial judge noted that had the jury applied the
Fault
    Determination Rules
, it would have found the appellant 100% at fault, rather
    than only 73% at fault. He concluded that [t]his is a fault apportionment
    amply justified by the evidence presented in this case. We see no basis to disturb
    any of these conclusions.

[43]

Finally,
    the appellants assert that the correcting charge was inadequate to dispel the
    prejudice arising from the jury being provided with the
Fault Determination
    Rules
. The appellants contend that [t]he correcting charge was provided
    in a vacuum as if the extrinsic information was neutral or benign.

[44]

We
    would not give effect to this argument. As this court noted in
Pannu
,
    at paras. 71-72, absent legal error, misapprehension of the evidence, or patent
    unreasonableness, an appeal court should accord deference to a trial judges
    decision to provide a correcting charge rather than declare a mistrial.

[45]

Here,
    the trial judge concluded that the jury respected the correcting charge and
    disabused themselves of any further consideration of the
Fault
    Determination Rules
obtained from the internet. He observed that this
    was a very engaged and diligent jury on the whole and the verdict rendered at
    the conclusion of this lengthy trial is well supported by the evidence. The
    trial judge was very well positioned to make this finding as to the efficacy of
    the correcting charge, having presided over this trial that included eight
    weeks of evidence and having seen the jurys engagement and diligence first
    hand. We see no basis for this court to intervene.

CONCLUSION

[46]

Accordingly,
    despite Mr. Obagis forceful submissions, the appeal is dismissed. Costs are
    payable to the respondent in the amount of $12,000, inclusive of disbursements
    and taxes.

Released: February 20, 2020 (P.C.M)

J.C. MacPherson J.A.

Robert J. Sharpe J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Enzi, 2020 ONCA 117

DATE: 20200213

DOCKET: C67122

Sharpe, MacPherson and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdulaziz Al-Enzi

Appellant

Matthew Gourlay and Peter Grbac, for the appellant

Roger A. Pinnock, for the respondent

Heard: February 7, 2020

On appeal from the
conviction entered on October 1, 2018 and the sentence imposed on January 15,
2019 by Justice Peter K. Doody of the Ontario Court of Justice, with reasons
reported at 2018 ONCJ 679.

By the Court:

[1]

At the conclusion of a trial before Doody J. of the Ontario Court of
Justice, the appellant, Abdulaziz Al-Enzi, was convicted of assault with a
weapon (particularized as a jailhouse shank), assault causing bodily harm, and
aggravated assault. In accordance with
R. v. Kienapple
, [1975] 1
S.C.R. 729, the convictions for assault with a weapon and assault causing bodily
harm were conditionally stayed. The trial judge imposed a term of incarceration
of 30 months, with 153 days deducted for pre-sentence custody. Mr. Al-Enzi
appeals the conviction and sentence.

[2]

On April 19, 2018, there was an altercation involving several inmates in
the dayroom at the maximum security unit of the Ottawa-Carleton Detention
Centre. The complainant was assaulted and suffered significant injuries.

[3]

Two inmates, Houssine Ali and Eli Elenezi, testified that they had
assaulted the complainant with short pencils grasped in their fists, which they
had hidden under their clothes before the fight. No pencil or other weapon was
recovered from the dayroom.

[4]

The complainant, who suffered two cuts to his face, testified that he
did not know who had cut him.

[5]

Mr. Al-Enzi did not testify.

[6]

Two security videos recorded the altercation. The footage shows Mr.
Al-Enzi holding a white object in his right hand. He removed the white covering
as he ran toward the complainant. He punched the complainant and drew his right
hand across the complainants left cheek from his mouth toward his ear. He then
grabbed the complainants head in an arm hold. His right hand then moved across
the left side of the complainants face.

[7]

The fight stopped. Mr. Al-Enzi went to the nearby partially visible (on
the security videos) washroom and bent down over the toilet and then
straightened up.

[8]

At the conclusion of the trial, the trial judge reserved his decision.
Counsel agreed that he could review the video evidence as he prepared his
judgment.

[9]

When the trial judge looked again at the videos, he noticed that Mr. Ali
had his fingers splayed just before punching the complainant. There did not
appear to be a pencil in his hand.

[10]

The trial judge also noticed that after Mr. Elenezi punched the complainant,
he stood in front of the washroom door for about 50 seconds before the guards
entered, despite testifying that if he had a pencil, he would have disposed of
it as soon as possible after a fight.

[11]

Counsel had not questioned these witnesses on these potential
discrepancies.

[12]

The trial judge wrote to counsel, requesting submissions on these points
and inquiring whether the defence wanted to bring a motion to reopen the
defence case.

[13]

Court was reconvened and, ultimately, defence counsel brought a motion to
reopen its case and recall Mr. Elenezi (Mr. Ali could not be found). The trial
judge granted the motion.

[14]

After being recalled, Mr. Elenezi testified that he did not have time to
flush his pencil down the toilet. When pressed in cross-examination, he said
that he did not flush it because he would have been seen on the videos. He had
not said this in his original testimony or in his examination in chief when
recalled.

[15]

Mr. Elenezi testified that he took the pencil out of his prison jumpsuit
and then put it back about nine seconds later, after he had punched the
complainant. However, in cross-examination, the trial Crown suggested that the
video evidence showed that he put his hand on the back of another inmate
immediately after punching the complainant and his fingers were splayed. There
was no pencil. In addition, the video showed that he punched the complainant
but did not swing his hand across his chest in a horizontal motion, contrary to
his testimony when recalled.

[16]

The videos also showed that Mr. Elenezi and Mr. Al-Enzi punched the
complainant almost 28 seconds after Mr. Ali punched him. Before Mr. Elenezi and
Mr. Al-Enzi punched him, the complainant did not have blood on his face and
chest. Nine seconds later, the complainant had blood on his face and chest.

[17]

The trial judge found Mr. Al-Enzi guilty of the three charges set out
above. He said that there was a live issue as to whether Mr. Ali and Mr.
Elenezi had pencils in their fists when they struck the complainant.

[18]

The trial judge said that Mr. Alis evidence was not credible. The video
evidence shows that his fingers were fully extended after he took his hand out
of the waistband of his pants. He did not have a pencil. The trial judge
accepted Mr. Elenezis evidence that inmates dispose of weapons in the toilet
as soon as possible after a fight so the guards cannot find them. The video
evidence showed that Mr. Ali did not go into the washroom to dispose of the
pencil despite having time to do so. Accordingly, Mr. Ali did not cause the injuries
to the complainants face.

[19]

The trial judge said that he did not believe that Mr. Elenezi had a
pencil. The video evidence showed that he did not have a pencil immediately
after striking the complainant. He had ample time (about 50 seconds) to dispose
of a pencil in the toilet before the guards arrived, but did not do so. The
only reasonable conclusion is that Mr. Elenezi did not have a pencil.

[20]

Having disbelieved Mr. Alis and Mr. Elenezis testimony, the trial
judge determined, based on the video evidence relating to Mr. Al-Enzi set out
above, that he was the person who attacked the complainant with a weapon and
caused the facial injuries.

Conviction Appeal

[21]

Mr. Al-Enzi contends that the trial judge made two errors with respect
to permitting Mr. Elenezi to testify after the trial was over and while he was
preparing his judgment.

[22]

First, Mr. Al-Enzi submits that the trial judge erred by, on his own
motion, inviting the defence to reopen the trial and then using the evidence
tendered to convict him. In support of this position, Mr. Al-Enzi refers to the
trial judges letter to counsel and describes it as tantamount to the trial
judge recalling the witnesses himself.

[23]

We do not accept this characterization of what the trial judge did. Once
court reconvened after counsel had received the trial judges letter, the trial
judge made it clear (Im not proposing to call a witness; I do not, rather,
intend to call a witness) that he was seeking both counsels views on how to
proceed, now that they knew that he had seen things in the video evidence that
had not been addressed during the trial testimony and that were potentially
significant in his assessment of the evidence and ultimate verdict. This led
defence counsel to say:

I understand that. I - I wouldnt be seeking to recall Mr.
Elenezi but for the letter, I mean it wouldnt be something that I would have
done otherwise. But I think that it is a defence application at this point and its
not
its not something that is emanating from the Court
.
[Emphasis added.]

[24]

Second, Mr. Al-Enzi asserts that, if the defence made a motion to reopen
the trial, the trial judge erred by granting the motion. Mr. Al-Enzi says that
the trial judges decision to reopen the trial was not made in an
ex
improviso
situation  i.e. circumstances arose that could not have been foreseen.
In support of this submission, Mr. Al-Enzi points to what the trial judge said
in his reasons for judgment:

The videos were played many times during the trial, in both
normal speed and in slow motion. All witnesses were given an opportunity to
comment on and describe what they saw happening on the videos. The inmate
witnesses were asked to explain what they were doing in the videos. Counsel
played them during submissions and made submissions on what they showed.

[25]

We are not persuaded by this submission. The leading case dealing with
reopening a trial is
R. v. Hayward
(1993), 88 C.C.C. (3d) 193 (Ont.
C.A.), wherein Doherty J.A. said, at para. 15:

A trial judge sitting without a jury may permit the reopening
of the evidence at any time before sentence is passed. The decision to permit
either party to reopen its case and call further evidence is within the
discretion of the trial judge, and where that discretion is exercised
judicially an appellate court will not interfere. [Citations omitted.]

[26]

In
Hayward
, the court enunciated several considerations that
comprise the test for assessing whether a trial should be reopened. In the
present case, the trial judge, explicitly and faithfully, applied the
Hayward
test and granted the defence application to recall a witness. He exercised his
discretion judicially and, in the interest of trial fairness, reopened the
trial. He made an entirely reasonable decision.

[27]

In oral submissions on appeal, counsel for Mr. Al-Enzi agreed that the
trial judge wrote his letter to counsel in fairness to the defence. While we
understand appellate counsels submission that it would have been less of a
problem if defence counsel had initiated the application to reopen the trial,
we do not agree that this well-intentioned decision was prejudicial to Mr.
Al-Enzi. The trial judges letter did not suggest he had decided to reopen the
trial and wanted counsel to prove him wrong. Quite the opposite. In his letter,
the trial judge asked to hear counsel whether I should grant [the defence] an
opportunity to re-open the defence case to recall Mr. Ali and Mr. Elenezi to
testify with respect to these points. It was open to defence counsel as a
tactical decision not to bring an application to reopen the trial. Instead, he
brought an application of his own accord. Asking for submissions is not the
same as asking the defence to recall a witness.

Sentence Appeal

[28]

Mr. Al-Enzi submits that the 30-month sentence imposed by the trial
judge is unfit. He says that the trial judge erred by minimizing relevant
contextual factors related to the incident, namely that this was an assault (i)
committed in the context of a multiparty jailhouse fight; (ii) in which the
complainant participated; and (iii) the complainants injuries were at the low
end of the scale for aggravated assault.

[29]

We disagree. The trial judge listed several serious aggravating factors
 the assault occurred in a correctional facility where inmates are entitled
to serve their sentences or prepare for trial in an environment devoid of
violence; Mr. Al-Enzi had a criminal record, including prior offences of
violence; Mr. Al-Enzi used a concealed weapon and attacked the complainant
after he had already been assaulted by two other inmates (piling-on); and the
assault left the complainant with two permanent facial scars. These factors,
cumulatively, justified the sentence he imposed.

Disposition

[30]

The appeal is dismissed.

Released: RJS FEB 13 2020

Robert J. Sharpe J.A.

J.C. MacPherson J.A.

M. Jamal J.A.