CITATION:
The Sovereign General Insurance
          Company v. Walker, 2011 ONCA 597

DATE: 20110919

DOCKET: C52325

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Laskin and MacPherson JJ.A.

BETWEEN

The Sovereign General Insurance Company

Defendant (Appellant)

and

Marie Walker and Albert Walker

Plaintiffs (Respondents)

William S. Chalmers, for the appellant

Stephen B. Abraham and Michael G. Emery, for the respondents

Heard: March 30, 2011

On appeal from the order of Justice
          C. William Hourigan of the Superior Court of Justice dated June 7, 2010.

Laskin J.A.:

A.

INTRODUCTION

[1]

The respondents, Marie and Albert Walker, obtained a judgment against
    Sun Shelters Industries Inc., a property maintenance company, for damages
    resulting from a slip and fall accident in a parking lot.  However, Sun Shelters
    went bankrupt and could not pay the judgment.  The Walkers, therefore, brought
    an action under s. 132 of the
Insurance Act,
R.S.O. 1990, c. I.8,
    seeking recovery of their judgment against Sun Shelters insurer, the
    appellant, the Sovereign General Insurance Company.

[2]

The Walkers moved for summary judgment on their claim and Sovereign
    brought a cross-motion to dismiss the action.  The main issue on the motions
    was whether Sovereign had received notice of the claim against Sun Shelters in
    accordance with the conditions of the insurance policy.

[3]

The motion judge, Hourigan J., held that although Sun Shelters itself
    had not given Sovereign notice of the claim, Sovereign had received notice from
    the owner of the parking lot, a co-defendant in the original action, and this
    notice complied with the policy conditions.  Alternatively, the motion judge
    held that the Walkers were entitled to relief from forfeiture under s. 129 of
    the
Insurance Act
.  Accordingly, he granted the Walkers motion and
    dismissed Sovereigns cross-motion.

[4]

Sovereign appeals on three grounds:

(1)

The motion judge erred in holding that the notice provision in the statutory
    conditions of the insurance policy applied to the Walkers claim;

(2)

The motion judge erred in finding that the notice given by the property
    owner was effective notice under the policy conditions for liability coverage;
    and

(3)

The motion judge erred in granting relief from forfeiture because such relief
    is available only for imperfect compliance with a policy condition, and not for
    what occurred here - total non-compliance.

B.

BACKGROUND

(a)
The accident

[5]

On January 30, 1999, the Walkers went to a movie
    with their grandchildren at the Power Centre in Burlington, Ontario.  On the
    way back to their car after the movie was over, Marie Walker slipped on some
    ice in the parking lot and fell.  She sustained permanent injuries, including a
    serious head injury.

(b)
The first action

[6]

The Walkers sued Emshih Developments Inc., the
    owner of the Power Centre, and Sun Shelters, the maintenance company retained
    to keep the property clear of ice and snow.  Emshih cross-claimed against Sun
    Shelters for contribution and indemnity.

[7]

As Sun Shelters had gone bankrupt, it did not
    defend the action.  However, Emshih discovered that Sun Shelters was insured by
    Sovereign.  Emshihs counsel notified Sovereign of the Walkers claim,
    forwarded all the pleadings to it, and even arranged for a lengthy adjournment
    of the trial to permit Sovereign to participate in the action.  After taking
    legal advice, Sovereign declined to participate.

[8]

The Walkers settled with Emshih.  They then obtained
    a judgment against Sun Shelters for $100,000 in general damages and related
    relief.  In her reasons, Mossip J. found that the parking lot was completely
    treacherous and unfit for use by pedestrians  that day, that Mrs. Walkers
    fall was horrific, and that no amount of care by Mrs. Walker could likely
    have prevented her fall.

(c)       The second action

[9]

The Walkers then brought the action against Sovereign which is the
    subject of this appeal.  They claimed damages of $145,793.95,
[1]
under s. 132 of the
Insurance Act
, which allows a third-party to recover
    against an insurer where its insured has failed to satisfy a judgment for
    damages. Alternatively they relied on s. 129 of the Act, which gives a court
    jurisdiction to grant relief from forfeiture, where there has been imperfect
    compliance with a condition in an insurance policy.

(d)       The motion judges
    decision

[10]

In granting summary judgment to the Walkers, the
    motion judge held that because Emshih had cross-claimed against Sun Shelters,
    it may have been entitled to part of the insurance proceeds and therefore it
    had standing to give notice of the claim.  The motion judge held that under
    either of the notice provisions in the policy, Emshihs notice was effective
    notice to Sovereign. Accordingly, the Walkers were entitled to judgment under
    s. 132 of the
Insurance Act
.

[11]

Alternatively, the motion judge held that the
    Walkers were entitled to relief from forfeiture under s. 129 of the Act.  He
    found that to the extent that there has been a breach of a condition, such
    breach amounts only to imperfect compliance with the policy.  Further, he
    found no evidence of bad faith on the part of Sun Shelters, the Walkers or
    Emshih.  And finally, he found that Sovereign has suffered no prejudice.
    Therefore, forfeiture would be inequitable.

C.

ANALYSIS

(a)

Section 132 of the
Insurance Act

[12]

Section 132(1) provides that a person who has a
    judgment for damages against an insured person, which  has not been satisfied,
    may recover from that persons insurer the amount of the judgment up to the
    face value of the policy:

Where a person incurs a liability for injury or
    damage to the person or property of another, and is insured against such
    liability, and fails to satisfy a judgment awarding damages against the person
    in respect of the persons liability, and an execution against the person in
    respect thereof is returned unsatisfied, the person entitled to the damages may
    recover by action against the insurer the amount of the judgment up to the face
    value of the policy, but subject to the same equities as the insurer would have
    if the judgment had been satisfied.

[13]

The concluding words of s. 132(1)  subject to
    the same equities as the insurer would have if the judgment had been satisfied
     are important.  Persons, such as the Walkers, seeking recovery under s. 132
    can stand in no better position than the insured.  So, if the insurer,
    Sovereign, had a defence against its insured, Sun Shelters, that defence would
    apply to the Walkers claim: see
W.R. Scott Equipment v. Guardian Insurance
    Co. of Canada
(1998), 157 D.L.R. (4
th
) 227 (Alta. C.A.), at
    paras. 40-41.

[14]

Sovereign contends that Sun Shelters breached
    the statutory conditions of the policy requiring it to give notice and co-operate
    in the defence.  Compliance with the policy condition to give timely notice of
    a claim was a condition precedent to Sovereigns liability to Sun Shelters.
    Because of the non-compliance, Sovereign was not required to defend the
    original action or indemnify Sun Shelters.  It is equally not required to
    satisfy the Walkers claim under s. 132.

[15]

The terms of the policy provide the necessary context
    to Sovereigns argument.

(b)

The insurance policy

[16]

Sovereign insured Sun Shelters under a
    commercial insurance policy.  Sovereign admits that the policy covered the
    Walkers claim.  The policy provides the following coverages:

A.

fire and extended coverage;

B.

multi-peril;

C.

burglary and robbery; and

D.

comprehensive general liability

[17]

In other words, as counsel for Sovereign points
    out, the policy provides all the coverages that a business like Sun Shelters
    would need: property, theft and comprehensive general liability.  The policy
    limit for liability for bodily injury was $2 million.

[18]

The policy contains two sets of conditions; a
    set of statutory conditions and a set of policy conditions.  The statutory
    conditions begin with the following statement: The Statutory Conditions apply
    to the peril of fire and as modified or supplemented by riders or endorsements
    attached apply as Policy Conditions to all other perils insured by this
    policy.

[19]

Section 8 of the statutory conditions deals with
    who may give notice of a loss:

Notice of loss may be given, and
    proof of loss may be made by the agent of the insured named in the contract in
    case of absence or inability of the insured to give the notice or make the
    proof, and absence or inability being satisfactorily accounted for, or in the like
    case, or if the insured refuses to do so, by
a person to whom a part of the
    insurance money is payable
.  [Emphasis added.]

[20]

The motion judge relied on this section to find
    that Sovereign had been given effective notice of the Walkers claim.  He held
    that because Emshih had cross-claimed against Sun Shelters, Emshih was a
    person to whom a part of the insurance money is payable.

[21]

The policy conditions follow the Comprehensive
    General Liability Coverage Rider.  These policy conditions have a different
    notice provision from that in the statutory conditions. The notice provision is
    found in s. 3(a). The policy conditions also impose (in s. 3(b) and especially
    in s. 3(c)) a duty of cooperation on the insured:

3. Insureds Duties in the event
    of Accident, Occurrence, Claim or Suit:

(a)     In the event of an accident or occurrence, written notice
    containing particulars sufficient to identify the Insured and also reasonably
    obtainable information with respect to the time, place and circumstances thereof,
    and the names and addresses of the injured and of available witnesses, shall be
    given promptly by or for the Insured to the Insurer or any of its authorized
    agents.

(b)       If claim is made or suit is brought against the Insured,
    the Insured shall immediately forward to the Insurer every writ, letter,
    document or advice received by him or his representative.

(c)       The Insured shall co-operate with the Insurer and, upon
    the Insurers request, assist in making settlements, in the conduct of suits
    and in enforcing any right of contribution or indemnity against any person or
    organization who may be liable to the Insured because of injury or damage with
    respect to which insurance is afforded under this policy; and the Insured shall
    attend hearings and trials and assist in securing and giving evidence and
    obtaining the attendance of witnesses.  The Insured shall not, except at his own
    cost, voluntarily make any payment, assume any obligation or incur any expenses
    other than for the first aid to others at the time of accident.

[22]

Section 4 states that compliance with the terms
    of the policy  which includes s. 3  is a condition precedent to an action
    against Sovereign:

No action shall lie against the Insurer
    under any Insuring Agreement of this policy including the Insuring Agreement
    relating to Defence  Settlement  Supplementary Payments unless, as a
    condition precedent thereto, there shall have been full compliance with all of
    the terms of this policy.

[23]

Sovereign maintains that ss. 3 and 4 of the
    policy conditions apply to the Walkers claim, and that notice was not given in
    accordance with s. 3(a).  The motion judge held, without analysis, that
    effective notice had been given, not only under s. 8 of the statutory
    conditions, but also under s. 3(a) and (b) of the policy conditions.

[24]

I turn now to the issues on the appeal.

(c)       The issues on the
    appeal

I.         Did the motion judge err in holding that s. 8 of the statutory
    conditions applied to the Walkers claim?

[25]

As I have said, the statutory conditions, including
    s. 8, applied to  all other perils insured by this policy.  The motion judge
    concluded that this phrase was sufficiently broad to cover the Walkers loss.  Either
    the Walkers loss was a peril to which s. 8 applied or the applicability of s.
    8 to the Walkers loss was ambiguous, in which case the ambiguity would be
    construed against the insurer, Sovereign.

[26]

Even if s. 8 did apply, Sovereign does not
    accept that Emshih could give effective notice.  However, its main submission
    is that the motion judge erred in concluding that s. 8 applied to the Walkers
    loss.  Sovereign says that these statutory conditions apply to property losses
    such as fire and theft, but not to liability or losses to third parties.  I
    agree with this submission.

[27]

Perhaps in isolation, the word perils is broad
    enough or ambiguous enough to support the motion judges conclusion.  But, the
    policy must be read as a whole.  And when it is read as a whole, there is no
    ambiguity.  The policy contains two separate sets of conditions.  Each set must
    be given scope and meaning.

[28]

Viewed in this light, it is apparent that the statutory
    conditions apply only to the
property
coverages in the policy  for
    example fire and theft  and any other
property
related perils that may
    be added by rider or endorsement.  Several other provisions in the statutory
    conditions support this interpretation.  For example, s. 2 dealing with Property
    of Others, ss. 11 and 12 dealing with Appraisal and When Loss Payable, and
    s. 13 dealing with Replacement have no relevance to third party liability
    claims.  They address coverage for direct loss to an insureds property, not
    coverage for loss or liability to a third party.

[29]

The policy conditions, which follow the Comprehensive
    General Liability Coverage Rider, apply to third party liability claims such as
    the Walkers claim against Sun Shelters.  This is evident from the other terms
    of the rider.  The rider provides that the insured agrees, among other things,
    to the liability insurance conditions attached to the policy and such
    additional declarations, exclusions, limitations, conditions and other terms of
    this rider.  This provision includes the policy conditions.

[30]

Moreover, the Insuring Agreement in the
    liability section of the rider states that this policy is subject to the terms
    and conditions set forth herein. Immediately following, it reads:
see conditions on reverse side
.  The
    conditions referred to are the policy conditions, which include the notice and
    duty to co-operate requirements in s. 3.  It is these conditions that apply to
    losses or liability to third parties.

[31]

In summary, the insurance policy between
    Sovereign and Sun Shelters contains two stand alone coverages: A-C for property
    coverages, and D for liability coverage.  Each of the coverages has its own set
    of conditions.  The statutory conditions apply to the property coverages, and
    the policy conditions apply to liability coverage.  I therefore agree with
    Sovereign that the motion judge erred in holding that s. 8 of the statutory
    conditions was the notice provision applicable to the Walkers loss.

II.         Did the motion judge err in finding that the notice
    given by Emshih was effective notice under s. 3(a) of the policy conditions for
    liability coverage?

[32]

The notice of loss requirement applicable to the
    Walkers claim is s. 3(a) of the policy conditions for liability coverage. For
    convenience, I reproduce s. 3(a):

(a)       In the event of an accident or occurrence, written notice
    containing particulars sufficient to identify the Insured and also reasonably
    obtainable information with respect to the time, place and circumstances
    thereof, and the names and addresses of the injured and of available witnesses,
    shall be given promptly by or for the Insured to the Insurer or any of its
    authorized agents.

[33]

The motion judge held that the notice of the
    Walkers claim given to Sovereign by Emshihs counsel was effective notice
    under s. 3(a).  Sovereign submits that the motion judge erred in this holding.
    It argues that only its insured, Sun Shelters, could give notice under s.
    3(a).  As Sun Shelters did not do so, it breached the policy condition. Therefore,
    in accordance with s. 4, Sovereign was not obligated to indemnify its insured
    or pay the Walkers judgment.  Sovereign also makes a secondary argument: Sun
    Shelters breached its duty to co-operate under s. 3(c) of the policy
    conditions.  I do not accept either of Sovereigns arguments.

[34]

Notice under s. 3(a) can be given by or for the
    insured.  Thus, on the plain wording of the provision, notice may be given by
    a person other than the insured.  The section does not, however, define the
    class of persons capable of giving notice on behalf of the insured.

[35]

Section 3(a) should be interpreted in the light
    of its purpose. Like any notice provision in an insurance policy, the purpose
    of s. 3(a) is to make Sovereign aware of a claim against its insured so that it
    has the timely opportunity to deal with it. The delivery and content of the notice
    is important to Sovereign because the notice triggers Sovereigns duty to
    defend and to act in good faith toward its insured. Typically, once served with
    notice, Sovereign will have to open a file, retain an adjuster, and take any
    other steps necessary to respond to the claim against its insured.

[36]

Given its purpose and importance, if the notice
    is to be given for an insured instead of by the insured itself, the person
    giving it should have sufficient proximity to the claim to have knowledge of
    the information required by s. 3(a).  Emshih was just such a person. It owned
    the property where the accident occurred; it was a defendant in the original
    action; and it cross-claimed against Sovereigns insured. In giving notice to
    Sovereign, Emshih was giving notice
for
Sun Shelters as contemplated by
    s. 3(a) of the policy.

[37]

At the very least, the class of persons capable
    of giving notice under s. 3(a) is ambiguous.  In accordance with well accepted
    principles of interpretation of insurance contracts, that ambiguity must be
    construed against Sovereign: see
Consolidated-Bathurst v. Mutual Boiler
,
    [1980] 1 S.C.R. 888.  Therefore, I agree with the motion judge that Emshihs
    notice was effective notice to Sovereign under s. 3(a) of the policy conditions
    for liability coverage.

[38]

The motion judge also found the argument that
    Sun Shelters failed to co-operate in the defence of the original action is
    entirely without merit.  This is a finding of fact, which is supported by the
    record and warrants deference on appeal.  As the motion judge noted, Sovereign
    made no effort to contact its insured or seek its assistance in defending the
    action.  Instead, it took the position that it would not participate in the
    action at all.  It cannot now complain that Sun Shelters breached its duty to
    co-operate.

[39]

I would not give effect to this ground of
    appeal.

III.      Did the motion judge err in granting relief from
    forfeiture?

[40]

My disposition of the second issue is sufficient
    to decide this appeal.  However, even if I am wrong in holding that Emshih
    could give notice under s. 3(a) of the policy conditions for liability
    coverage, I agree with the motion judge that the Walkers would, be entitled to
    relief from forfeiture under s. 129 of the
Insurance Act
.

[41]

Section 129 provides:

Where there has been imperfect compliance with a
    statutory condition as to the proof of loss to be given by the insured or other
    matter or thing required to be done or omitted by the insured with respect to
    the loss and a consequent forfeiture or avoidance of the insurance in whole or
    in part and the court considers it inequitable that the insurance should be forfeited
    or avoided on that ground, the court may relieve against the forfeiture or
    avoidance on such terms as it considers just.

Relief from forfeiture under s. 129 applies both
    to statutory and policy conditions: see
Falk Bros. Industries Ltd. v. Elance
    Steel Fabricating Co.
, [1989] 2 S.C.R. 778, at paras. 10-16.

[42]

The two issues under this ground of appeal are:
    first, whether this is a case of imperfect compliance, as the Walkers maintain,
    or total non-compliance, as Sovereign maintains; and second, if this is a case
    of imperfect compliance, whether forfeiture of the insurance proceeds would be
    inequitable.

[43]

The law has treated the failure to give timely
    notice of a claim as imperfect compliance, not non-compliance: see
Falk
    Bros. Industries Ltd. v. Elance Steel Fabricating Co.
,
supra
, at
    para. 18.  However, Sovereign submits that this principle does not apply on
    these facts.  It says that because Emshih was not entitled to give notice under
    s. 3(a) of the policy conditions for liability coverage, then in substance no
    notice was given, rendering this a case of non-compliance, not imperfect
    compliance.

[44]

It seems to me that Sovereigns position is far
    too rigid.  As I said earlier, the question of compliance has to be looked at
    in the light of the purpose of a timely notice provision.  Notice gives the
    insurer an opportunity to investigate the merits of a claim, negotiate a
    settlement, and if necessary, defend the action.  Sovereign had that
    opportunity.  It chose not to exercise it.

[45]

In other words, this is not a case where the
    insured had no actual notice of the claim or loss - Sovereign did have actual
    notice and made a conscious decision not to participate in the litigation.
    Even if the notice should have come from Sun Shelters, the notice from Emshih
    makes this a case of imperfect compliance, not non-compliance.

[46]

As this is a case of imperfect compliance, the
    only remaining question under s. 129 is whether forfeiture of the insurance
    proceeds would be inequitable.  The motion judge held that it would be, and
    made two key findings of fact in support of that holding:

1.

There was no bad faith by Sun Shelters, the
    Walkers or Emshih; and

2.

Although Emshih gave Sovereign notice of the
    Walkers claim over five years after the accident occurred, Sovereign suffered
    no prejudice from the late delivery of the notice.  In the motion judges
    words: Whether the insurer received notice six months or six years after the
    accident it is difficult to imagine that it would have acted any differently.

[47]

Sovereign does not challenge these findings of
    fact, and I have no basis to interfere with them.  On these findings,
    forfeiture would be inequitable.

[48]

I would, therefore, not give effect to this
    third ground of appeal.

D.

CONCLUSION

[49]

The motion judge did not err in holding that
    Emshihs notice to Sovereign was notice in accordance with s. 3(a) of the
    policy conditions for liability coverage.  Nor did he err in holding that, in
    the alternative, the Walkers would be entitled to relief from forfeiture.

[50]

I would dismiss the appeal with costs fixed in
    the agreed-upon amount of $20,000, inclusive of disbursements and applicable
    taxes.

RELEASED:  Sept. 19, 2011                                               John
    Laskin J.A.

JL                                                                                I
    agree D. OConnor A.C.J.O.

I
    agree J.C. MacPherson J.A.

[1]
The amount of their judgment against Sun Shelters less Emshihs contribution.


CITATION:
Tondera v. Vukadinovic, 2011 ONCA 596

DATE: 20110916

DOCKET: C53185

COURT OF APPEAL FOR ONTARIO

Goudge, Juriansz and MacFarland JJ.A.

BETWEEN

Michelle Alice Tondera and Maryon Tondera

Applicants/Appellants

and

Veselin Vukadinovic, Mihajlo (Mike) Milicevic and
Dorothy
          Ellyn Fox

Respondents

Vesna Vojvodic, for the applicants/appellants

Christine Fotopoulos and S. Jones, for the respondent Dorothy
          Ellyn Fox

Heard:
August 8, 2011

On appeal from the decision of Justice Katherine B. Corrick of
          the Superior Court of Justice dated December 13, 2010.

ENDORSEMENT

[1]

This
is an appeal from the decision of Corrick J. striking out the
    Amended Notice of Application as disclosing no reasonable cause of action.

[2]

None of the parties raised any objection to the fact that this matter
    proceeded at first instance as a Rule 21 motion and the applicability of Rule
    21 to an application was not put in issue before us.

[3]

The facts giving rise to this litigation are succinctly set out by the
    motions judge in paragraph 8 and 9 of her reasons:

[8]       The basic facts of this case are as
    follows.  In April 2003, the Tonderas each signed powers of attorney written in
    the Serbian language revoking their interest in their grandfathers property in
    the former Republic of Yugoslavia in favour of their grandmother, and providing
    their uncle, Veselin Vukadinovic (Veselin), with authority to deal with the
    property. They signed the documents in the presence of the respondent, Mihajlo
    (Mike) Milicevic. The face of the documents state that they were signed in the
    presence of Mihajlo Mike Milicevic. Below Mr. Milicevics signature appear the
    pre-printed words (in translation) Certified by:. Below those words is Ms.
    Foxs signature and below that are the pre-printed words (in translation)
    Notary Public, A Commissioner, etc. Finally, below that are the words Dorothy
    E. Fox, Barrister & Solicitor. Ms. Foxs embossed notarial seal is also on
    the document.

[9]       The Tonderas do not speak or read the
    Serbian language. They believed that they signed powers of attorney to
    authorize Veselin to manage the property. They did not know they were
    relinquishing their interest in the property.  In 2008, they discovered that
    they no longer had an interest in the property and that it had been transferred
    to Veselin, who had granted an interest in it to a company in exchange for an
    interest in certain other properties.

[4]

On the motion before her she concluded in paragraphs 7 and 16:

In my view, the amended application discloses no
    reasonable cause of action against Ms. Fox. The amended application fails to establish
    a relationship of sufficient proximity between the Tonderas and Ms. Fox that
    would give rise to a duty of care to the Tonderas on the part of Ms. Fox.

I do not accept the submissions of Ms. Vojvodic
    regarding the duties of a notary public in Ontario.  The cases Ms. Vojvodic
    refers to in support of her submission deal with notaries public subject to
    duties prescribed by statute.  Notaries public in Ontario are bound by the
Notaries
    Act
,
supra
, which does not prescribe the duties that Ms. Vojvodic
    submits should be attributed to Ms. Fox.

[5]

In a Rule 21 motion the facts pleaded are taken as true and provable for
    the purpose of the motion.

[6]

The relevant subparagraphs of Paragraph 2 of the Amended Notice of
    Application read:

(q)       The 2003 Documents
    would not have been effective to convey a legal interest in the Montenegro
    property unless they were signed in front of a barrister and solicitor who was
    an accredited notary for documents in the country where the document is being
    signed and the signature of such barrister and solicitor deposited with the
    consulate of the Federal Republic of Yugoslavia.

(r)        Prior to notarizing a document which
    would have legal effect in the former Federal Republic of Yugoslavia and in
    Canada, the notary is required to ensure that the signatories understand the
    nature and effect of the document and that they are signing it of their own
    free will.

(t)        Fox has her signature deposited with the
    Consulate of the Federal Republic of Yugoslavia and is one of the accredited
    notaries for documents to be used in the Federal Republic of Yugoslavia.

(u)       Fox was not in fact present when Michelle
    and Maryon signed the 2003 Documents.  By having applied her signature and
    notarial seal to these documents, Fox gave the 2003 Documents the false
    appearance of being duly executed legal documents, capable of being further
    legalized by the Consulate of the Federal Republic of Yugoslavia.

(v)       Fox notarized the signatures without
    having seen the 2003 Documents being signed in her presence and without having
    satisfied herself that each person signing her/his document was aware of its
    nature and contents and each person was signing it voluntarily and was not
    subjected to any coercion, pressure or intimidation.

[7]

While not a model pleading the gist of the appellants argument is
    apparent.  They submit that Fox knew that the presence of her signature on the
    document would cause the authorities in the Federal Republic of Yugoslavia to
    accept that the document was signed in her presence and therefore give it legal
    effect.  In these unique circumstances, they say Fox owed them a duty of care both
    to have them sign in her presence and to insure that they understood the
    document.  Both arguments rest on the common law of negligence and not just the
Notaries Act
. The appellants allege Fox breached both duties and caused
    them harm.

[8]

The factual dispute about whose signature(s) Fox was appearing to
    certify is a matter requiring resolution.  On its face, the document is
    ambiguous.  Evidence will be required to resolve this.  Indeed a trial may be
    required.  The result may well be that by notarizing the document, Fox was representing
    that the appellants signed in her presence and understood the document.

[9]

We cannot say, in these particular circumstances that there can be no
    duty of care owed by Fox to the appellants when she affixed her signature as a
    notary to the document in their absence, knowing the legal effect her signature
    would carry in the Federal Republic of Yugoslavia and without enduring their
    understanding.  In our view, it is not plain and obvious that the appellants
    cannot succeed.

[10]

The appeal is allowed and the order of Corrick J. is set aside. The
    appellant should have their costs here and below.

[11]

Corrick J. fixed costs below in the all inclusive sum of $35,402.40 and
    noted in her endorsement dealing with costs that the appellants in this court
    had sought costs before her in the sum of $49,600. In our view, the sum of
    $35,000 inclusive of disbursements and HST is a reasonable sum for the costs
    below and we would award that sum to the appellants for their costs before
    Corrick J. In addition, the appellants are entitled to their costs of the
    appeal fixed in the sum of $15,000 also inclusive of disbursements and HST.

S.T. Goudge J.A.

R.G. Juriansz J.A.

J. MacFarland J.A.


CITATION:
United States of America v. Orphanou, 2011
          ONCA 612

DATE: 20110927

DOCKET: C52143 and C52909

COURT OF APPEAL FOR ONTARIO

Weiler, Cronk and Watt JJ.A.

BETWEEN

The Attorney
          General of Canada on behalf of The United
          States of America and the Minister of Justice

Respondents

and

Alex Orphanou, a.k.a. Alexos Orphanou

Appellant/Applicant

Gregory Lafontaine, for the appellant

Richard Kramer and Jacqueline Palumbo, for the respondents

Heard:
September 8, 2011

On appeal from the committal order
          of Justice Janet Wilson of the Superior Court of Justice, dated April 28,
          2010, reported at 2010 ONSC 2153, and on judicial review of the surrender
          order of the Minister of Justice, dated November 4, 2010.

CRONK J.A.:

[1]

The appellant, Alex Orphanou, is wanted in the United States for trial
    on various offences relating to an alleged telemarketing credit card fraud
    scheme that is said to have involved approximately 30,000 victims and losses of
    about $7 million USD.  By order of Wilson J. of the Superior Court of Justice
    dated April 28, 2010, the appellant was ordered committed for extradition.  He
    was ordered surrendered by the Minister of Justice on November 4, 2010.

[2]

The appellant appeals against his committal and seeks judicial review of
    the Ministers surrender order.  For the reasons that follow, I see no basis on
    which to interfere with either decision.

A.        Committal Order

[3]

The appellant was committed for extradition on the offence of fraud
    contrary to section 380(1)(a) of the
Criminal Code of Canada
 (the
    Code).  He attacks the committal order on two main grounds.  First, he argues
    that the extradition judge had no jurisdiction to proceed since the version of
    the Authority to Proceed (ATP) filed by the Attorney General at the
    extradition hearing was a photocopy, rather than the original, of the ATP.  The
    appellant contends that a photocopy of an original ATP does not constitute a
    proper ATP within the meaning of the
Extradition Act
, S.C. 1999, c. 18
    (the Act).

[4]

Second, the appellant submits that the evidence contained in the
    certified Record of the Case (ROC) filed at the extradition hearing was
    insufficient to warrant his committal for trial on a charge of fraud under s.
    380(1)(a) of the Code.  More particularly, he contends that: (1) the evidence
    in the ROC does not support a charge of fraud over $5,000 since the losses
    allegedly suffered by the eight fraud victims who are expressly identified in
    the ROC were less than $5,000, both individually and collectively; and (2) the
    uncorroborated evidence of Jasen Plunkett, which identified the appellant as
    the person sought by the United States, was unreliable and warranted close
    scrutiny by the extradition judge given Mr. Plunketts lengthy history of
    criminal conduct.  The appellant maintains that without Mr. Plunketts evidence,
    the Attorney General failed to establish on a balance of probabilities that the
    appellant was the person whose extradition was sought by the requesting state, contrary
    to the requirements of s. 29(1)(a) of the Act.

[5]

For the following reasons, I would not accede to either of these
    arguments.

(1)

ATP Document

[6]

I do not accept that the version of the ATP relied on by the Attorney
    General at the extradition hearing deprived the extradition judge of jurisdiction
    to proceed.

[7]

The Act does not require that the original of an ATP be tendered at an
    extradition hearing.  Nor does the Act require that a certified copy of an ATP
    be filed.  If Parliament had intended that the filing of the original of an ATP
    was a necessary prerequisite to ground jurisdiction to proceed with an
    extradition hearing, it might be expected that such an intention would be
    clearly and unambiguously stated.

[8]

Moreover, in my view, the Act contains evidence of an intention by
    Parliament to relieve against the mandatory filing of an original ATP to engage
    the jurisdiction of the Superior Court to conduct an extradition hearing.  Section
    15(4) of the Act states:

A copy of an authority to proceed produced by a
    means of telecommunication that produces a writing has the same probative force
    as the original for the purposes of [Part 2 of the Act].

[9]

The extradition judge concluded that s. 15(4) of the Act permitted the
    extradition hearing to proceed based on the filing of a photocopy of the
    original ATP.  With respect, I am not persuaded that s. 15(4) provides such
    authority.

[10]

Section 15(4) is concerned with a copy of an original ATP that is produced
    by a means of telecommunication that produces a writing.  The issue,
    therefore, is whether the word telecommunication as used in s. 15(4) of the
    Act includes a version of an ATP that is produced by means of a photocopier.

[11]

The word telecommunication is not defined under the Act.  However, it
    is used in various provisions and defined in s. 326(2) of the Code.   Section 326(2)
    of the Code concerns the offence of theft of telecommunication service.  It
    defines telecommunication as any transmission, emission or reception of
    signs, signals, writing, images or sounds or intelligence of any nature by
    wire, radio, visual, or other electromagnetic system.  Section 35 of the
Interpretation
    Act
, R.S.C. 1985, c. I-21, s. 2 of the
Copyright Act
, R.S.C. 1985,
    c. C-42, and s. 2(1) of the
Telecommunications Act
, S.C. 1993, c. 38 all
    contain virtually identical definitions of the terms telecommunication and
    telecommunications.

[12]

In
R. v. McLaughlin
, [1980] 2 S.C.R. 331, the Supreme Court of
    Canada considered the meaning of telecommunication for the purpose of the
    offence of fraudulent use of a telecommunication facility, established under a
    predecessor version of the Code.  Justice Estey, at p. 341, in a comparison
    similar to the case at hand, stated that: [t]aken too literally, the language
    [of the offence of fraudulent use of a telecommunication facility] may, of
    course, embrace the operation of a simple Xerox machine since it results in the
    transfer of optical images from one point (the item being printed) to another
    point (the blank sheet of paper on which the item is printed), but it would
    hardly fall within the ordinary usage of the language to classify such a device
    or system as being a telecommunication facility.

[13]

Justice Estey then continued at p. 341:

The term telecommunication as defined in the
Criminal
    Code
[R.S.C. 1970, c. C-34, s. 287] connotes a sender and a receiver. The
    computer, being a computing device, contemplates the participation of one
    entity only, namely, the operator.  In a sense, he communicates with himself,
    but it could hardly be said that the operator by operating the terminal or
    console of the computer is thereby  communicating information in the sense of
    transmitting information and hence it stretches the language beyond reality to
    conclude that a person using a computer is thereby using a telecommunication
    facility in the sense of the
Criminal Code
.
[1]

[14]

A similar meaning is attributed to the word telecommunication in
    general and specialized dictionaries.  For example, both
The Oxford English
    Dictionary
, 2d ed. and
The Concise Oxford English Dictionary
define
    telecommunication as involving communication over a distance by various
    electrical and other means (
e.g.
cable, telegraph, telephone,
    broadcasting).  Typically, the production of a written document by means of a
    photocopier does not involve communication over a distance by electrical or
    other means.

[15]

Against this backdrop, the question before us is how should a statutory
    provision be interpreted when its terms seem clear and unequivocal, yet its
    apparent meaning will not ensure fulfillment of the objectives for which it was
    enacted?  The Supreme Court of Canada has definitely answered this question.
    On numerous occasions, the Supreme Court has endorsed the following
    interpretive method as the preferred approach to statutory interpretation,
    described by E.A. Driedger in
The Construction of Statutes
(Toronto:
    Butterworths, 1974), at p. 67:

Today there is only one principle or approach,
    namely, the words of an Act are to be read in their entire context, in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament.

See also
Sullivan on the Construction of Statutes
, 5th
    ed. (Markham: LexisNexis Canada Inc., 2008), at p. 1;
Re Rizzo & Rizzo
    Shoes Ltd.
, [1998] 1 S.C.R. 27, at para. 21;
Bell ExpressVu

Limited Partnership v. Rex
, [2002] 2
    S.C.R. 559, at para. 26.

[16]

The current state of the law recognizes that in interpreting a statute,
    text alone is not enough because meaning flows at least partly from context, of
    which the statutes purpose is an integral element: Pierre-André Côté in
The
    Interpretation of Legislation in Canada
, 3d ed., (Toronto: Carswell, 2000),
    at p. 387.

[17]

Adopting this purposive interpretive approach in this case, I read s. 15(4)
    of the Act as designed to ensure, in the contemporary world of electronic
    communications, that the courts jurisdiction to proceed with an extradition
    hearing is not displaced solely on the basis that the original version of the
    relevant ATP is unavailable for filing at the extradition hearing.  Thus, for
    example, s. 15(4) permits the filing at an extradition hearing of a facsimile
    or other electronically produced written version of an ATP.  The production of
    these types of copies of an ATP involves the use of a form of telecommunication
    or transmission of information or intelligence.

[18]

There is no suggestion in this case that the record before the
    extradition judge included evidence that the production of a photocopy involves
    the transmission or reception of information or intelligence.  Nor does the
    Attorney General claim that the version of the ATP at issue was generated by or
    involved a communication over a distance.  In the absence of such evidence, it
    is not at all clear to me that s. 15(4) of the Act applies to a photocopy of an
    original ATP.

[19]

I conclude that s. 15(4) of the Act is not directly responsive to the
    appellants complaint regarding the form of the ATP filed at his extradition
    hearing.  That said, it is also my view that s. 15(4) signals a parliamentary
    intention that considerable flexibility be accorded to the issue of the form of
    an ATP that is acceptable for use at an extradition hearing for jurisdictional
    purposes.

[20]

The absence of any statutory requirement for the filing of the original
    version of an ATP at an extradition hearing, coupled with the clear expression
    in s. 15(4) of the Act of Parliaments intention that a liberal approach be
    taken to the form of an ATP that may be filed at an extradition hearing,
    strongly support the conclusion that reliance on a photocopied version of an
    ATP at an extradition hearing is unobjectionable.

[21]

Moreover, this conclusion accords with common sense.  Simply put, if a
    facsimile or other electronically produced written version of an ATP is
    sufficient to ground jurisdiction at an extradition hearing, it is difficult to
    conceive that a photocopy of the original version of an ATP, the authenticity
    of which is not challenged, is insufficient.

[22]

Accordingly, I would not give effect to this ground of appeal.

(2)

Sufficiency of the Evidence Supporting Committal

[23]

Section 29(1)(a) of the Act provides that an extradition judge shall
    order the committal into custody of a person sought for prosecution to await
    surrender if two prerequisites are satisfied: (1) there is evidence admissible
    under the Act of conduct that, had it occurred in Canada, would justify
    committal for trial in Canada on the offence set out in the ATP; and (2) the
    extradition judge is satisfied that the person before the court is the person
    sought by the extradition partner.

[24]

In my view, both of these prerequisites were satisfied in this case.

[25]

Turning to the first prerequisite, there is a wealth of evidence in the
    ROC to support a charge of fraud over $5,000.  The evidence detailed in the ROC
    indicates that the alleged fraudulent scheme, of which the appellant is said to
    have been the chief architect and directing force, was massive in scope and
    highly sophisticated.  It involved numerous corporations owned or controlled by
    the appellant, thousands of victims in the United States and victim losses totalling,
    in the aggregate, approximately $7 million USD.

[26]

Based on the evidence contained in the ROC, it is alleged that the
    appellant fraudulently telemarketed credit cards by offering persons resident
    in the United States, who had poor credit ratings, guaranteed credit cards in
    exchange for a fee.  Various telemarketers, employed by the appellant or one of
    his companies, contacted these persons in the United States and, on request
    therefor, obtained their bank account information.  Thereafter, by utilizing
    the services of several automated clearinghouse debit processors in the United
    States (ACHs), the appellant is alleged to have collected fees from the
    victims accounts, depositing the fees into bank accounts that he controlled.
    Despite the receipt of such fees, no credit cards were ever provided.

[27]

The evidence detailed in the ROC to substantiate this fraud claim, as
    summarized in the Attorney Generals factum, includes evidence that:

(a)
          between February 1999 and August 2002, Federal Credit, First Federal Key
    Nation and Pacific First [corporations owned or controlled by the appellant]
    initiated thousands of ACH debits totalling approximately $7M USD.  This figure
    translates into approximately 30,000 victims of the alleged fraud scheme;

(b)
         the eight victims of the fraud scheme highlighted in the ROC were referred
    to as [s]everal of the telemarketing fraud victims;

(c)
          during 2000 and 2001, one of the debit processors, EFT Networks,
    transferred approximately $1,877,865 USD into two First Federal accounts
    provided to the debit processor by the appellant;

(d)
        a Mellon Bank account was opened in the name of First Federal with a
    signature card signed by the appellant.  There were $2,264,226 USD in total
    deposits going through this account from January 2000 to May 2001;

(e)
         during 2001, EFT Networks processed transactions for the appellant through
    the corporation Key Nation and transferred approximately $3,165,819 USD from consumers
    in the United States into Key Nation bank accounts at Bank of America;

(f)
         the second debit processor, First American Payment Processing, handled
    approximately 8,095 transactions on behalf of First Federal during the period
    of January 2000 to May 2001, transferring approximately $1,025,067 USD into two
    accounts provided to the debit processor by the appellant; and

(g)
          between January 2001 and October 2001, the same debit processor processed
    1,796 transactions for Key Nation and transferred at least $357,404 USD into
    the Key Nation bank account at Bank of America.

[28]

This evidence indicates that the number of transactions, the scale of
    financial activity, and the quantum of funds involved in the alleged fraud scheme
    extend far beyond those transactions involving the eight fraud victims who are
    expressly identified in the ROC as anticipated witnesses at trial.

[29]

The ROC also states that a former employee of one of the appellants
    companies  Sankya Luque  is expected to testify at trial that, on her first
    day of employment, she was provided a sales script to read off of and that
    she began making cold calls to individuals who she believed were in the United
    States.  This witness anticipated trial testimony is further described in the
    ROC as follows:

Luque recalls that the sales script provided to her
    and others at FIRST FEDERAL announced that the consumer had been approved for a
    MasterCard credit card.  The written script Luque was provided also included a
    credit limit for the credit card being offered.  That as part of the prepared
    script, Luque told potential clients that they would have to provide their
    banking information and, if the customer agreed to the offer, the call would be
    taken over by a supervisor in the call center.  Luque estimated that there were
    between 20  30 other people working at the FIRST FEDERAL call center which was
    located on Eglinton Ave. in Toronto, Ontario.

Sankyn [
sic
] Luque is further expected to
    testify that there was no doubt in her mind that FIRST FEDERAL was selling a
    credit card over the telephone.

[30]

Nothing in the ROC suggests that this witness anticipated testimony
    relates only to the eight fraud victims specifically identified in the ROC or
    their particular losses.

[31]

The extradition judge was required to assess the sufficiency of the
    evidence in respect of a charge of fraud over $5,000 in the context of all the
    evidence contained in the ROC.  That is precisely what she did.  Like the
    extradition judge, I am satisfied that, viewed as a whole, there is ample
    evidence in the ROC to support the committal order.

[32]

In any event, I note that the Attorney General applied at the
    extradition hearing  under s. 23(2) of the Act to amend the ATP by deleting the
    reference to subparagraph (a) of s. 380(1) of the Code, thereby generalizing
    the fraud charge.  The extradition judge indicated that if she had had any
    concerns concerning the sufficiency of the evidence to support committal on the
    offence of fraud under s. 380(1)(a) of the Code, she would have granted the
    Attorney Generals amendment motion.  Contrary to the appellants contention, the
    extradition judge did not err by addressing the alternative relief sought by
    the Attorney General in this manner.

[33]

Nor, in my opinion, did the extradition judge err in her treatment of
    the identification evidence of Mr. Plunkett.  I agree with the Attorney
    Generals submission that the credibility or ultimate reliability of Mr.
    Plunketts evidence, while a relevant trial consideration, is not germane to
    the determination of whether the totality of the evidence in this case was
    sufficient to justify committal.

[34]

The role of an extradition judge in assessing the evidentiary foundation
    for a committal order is a narrow one.  The extradition judge may refuse to
    commit a person for extradition only if he or she concludes that the evidence proffered
    in support of the requested committal is manifestly unreliable:
U.S.A. v.
    Ferras
, [2006] 2 S.C.R. 77, at para. 40.  For the purpose of this inquiry,
    the extradition judge may embark on only a limited assessment of the
    reliability of the evidence:
Ferras
.  In this context, the evidence
    certified by one of Canadas extradition partners as available for trial and
    sufficient to justify prosecution is presumptively reliable:
Ferras
, at
    paras. 52 and 66.

[35]

Consistent with the extradition judges narrow role,
Ferras
does
    not contemplate that an extradition judge will determine whether a witness is
    credible or whether his or her anticipated evidence is reliable.  Rather, the
    question for determination by the extradition judge is whether the evidence
    advanced in support of extradition passes the relatively low hurdle of
    threshold reliability.  As this court stated in
U.S.A. v. Anderson
, (2007),
    85 O.R. (3d) 380, at paras. 28 and 30, leave to appeal refused [2007] S.C.C.A.
    No. 159, There is no power to deny extradition in cases that appear to the
    extradition judge to be weak or unlikely to succeed at trial.  Only where the
    strength of the concerns about the reliability of the evidence advanced in
    support of committal warrant complete rejection of the evidence, do reliability
    concerns become relevant under s. 29(1) of the Act.

[36]

In this case, as detailed in the ROC, Mr. Plunkett is a former employee
    of one of the appellants companies that is said to have been an active
    corporate participant in the alleged fraudulent activity.  He knows the
    appellant personally.  His anticipated testimony includes evidence identifying
    the appellant as the same person whose extradition is sought by the United
    States and directly linking the appellant to the fraudulent conduct described
    in the ROC.

[37]

Mr. Plunkett has lengthy criminal antecedents.  His criminal record and
    unsavoury character will no doubt figure prominently in the assessment of his
    credibility at trial and in the evaluation of the ultimate reliability of his
    identification of the appellant as the mastermind of the alleged fraud scheme.
    But under the current jurisprudence, those are matters for determination by the
    trial  not the extradition  judge.

[38]

Moreover, apart entirely from Mr. Plunketts anticipated evidence, the
    extradition judge compared a photograph of the person whose extradition was
    sought, as contained in the ROC, with the person before the court to determine
    whether the identification requirement of s. 29(1)(a) of the Act had been met.
    She concluded that the person in court was the same person whose photograph
    appeared in the ROC.

[39]

I would therefore reject the appellants challenge to the sufficiency of
    the identification evidence at the extradition hearing.  Mr. Plunketts
    anticipated trial evidence, as outlined in the ROC and described above,
    together with the extradition judges own comparison of the photograph of the
    person sought with the appearance of the appellant were more than sufficient to
    satisfy the identification prerequisite to a committal order.

[40]

I would therefore dismiss the appeal from committal.

B.        Surrender Order

[41]

During oral argument, the appellants attack on the Ministers surrender
    order focused on one issue.  The appellant argued that the surrender order is
    unreasonable because it includes reference to a broad conspiracy allegation
    mentioned in the requesting states materials, although his committal was not
    sought on conspiracy.

[42]

This argument fails on the authority of
Canada (Justice) v. Fischbacher
,
    [2009] 3 S.C.R. 170 and
United States of America v. Barbu
, [2010] 271
    O.A.C. 47 (C.A.), leave to appeal refused [2011] S.C.C.A. No. 66.  Those cases hold
    that the principle of double criminality does not require the Minister of
    Justice to match the foreign offence and the Canadian corresponding offence
    when determining the issue of surrender.  On the contrary, surrender may be
    ordered on any foreign offence that arises from the same conduct on which
    committal was ordered:
Fischbacher
at paras. 41, 50-51.  As this court
    recently stated in
Barbu
at para. 35, [T]he Act and current
    jurisprudence do not require alignment between the surrender order and the
    extradition order.

[43]

I therefore accept the Attorney Generals submission that ordering the
    appellants surrender on both the fraud charges and the alleged United States
    conspiracy charge does not offend the principle of double criminality.  It will
    be for the trial court in the United States to determine whether the appellant
    is guilty of the charges in question, based on the nature and cogency of the
    evidence actually adduced at trial.

[44]

The Minister in this case considered the relevant facts and exercised
    his discretion to order surrender in accordance with the principles outlined in
Fischbacher
.  In my opinion, his decision was reasonable.

C.        DISPOSITION

[45]

For the reasons given, I would dismiss both the appellants appeal from
    committal and his application for judicial review of the Ministers surrender
    order.

RELEASED:

KMW                                             E.A.
    Cronk J.A.

SEP 27 2011                                  I agree K.M.
    Weiler J.A.

I
    agree David Watt J.A.

[1]

McLaughlin
involved an individual who was charged with the fraudulent
    use of a telecommunication facility without colour of right after using a
    computer to obtain access to internal programs contained within the same
    computer.  The Supreme Court essentially held that as the use of the computer
    for this purpose did not involve the transmission of information, that is, a
    telecommunication, the offence was not made out.


CITATION:
Ablett v. Horzempa, 2011 ONCA 633

DATE: 20111011

DOCKET: C53474 & C53475

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J. (
ad hoc
)

BETWEEN:

Brian Robert Ablett

Moving Party (Respondent)

and

Mary Margaret Horzempa

Respondent (Applicant)

Brian Robert Ablett, in person

Daniela Bertossi, for the Ministry of Community Services
          Director

Christine Ziedins and Keith
          Taller, for the Family Responsibility Office

Mary Margaret Horzempa, in person

Heard:
September
          28, 2011

On appeal from the order of Justice Hugh K. OConnell of the
          Superior Court of Justice dated March 2, 2011 and the order of Justice
          Margaret P. Eberhart of the Superior Court of Justice dated March 7, 2011.

ENDORSEMENT

[1]

These appeals arise from a protracted family law dispute. The first appeal
    is from an order striking the appellants pleadings and dismissing the
    appellants motion to change a final order for spousal support. The second appeal
    is from an enforcement order pursuant to the
Family Responsibility and
    Support Arrears Enforcement Act
for payment of support arrears.

[2]

In his submissions before us, the appellant essentially attempted to
    re-litigate the entire dispute with his former common-law partner. The
    appellants position is that he never had his day in court because of the order
    striking his pleadings on the grounds that he failed to comply with the support
    orders, failed to pay costs and failed to make adequate disclosure. He insists
    that, contrary to the findings of the judges hearing the motions for interim
    and final support, the period of cohabitation was insufficient to justify a
    support order. Moreover, the appellant asserts that he lacks the means to pay
    the support that has been ordered because he filed for bankruptcy in 2008 and remains
    an undischarged bankrupt.

[3]

There is no basis for us to review or alter any of the outstanding
    orders or judgments apart from the two orders under appeal. The appellant did
    not appeal the order for interim support and while he filed a notice of appeal
    against the order for final support, he did not proceed with that appeal and it
    was dismissed. The two appeals before us do not provide the appellant with an
    avenue to collaterally appeal or attack the support orders.

MOTION

TO INTRODUCE FRESH EVIDENCE

[4]

The appellant also moves to introduce as fresh evidence on appeal an
    affidavit and other material that essentially relates to, and attempts to
    explain, aspects of the protracted matrimonial proceedings between these
    parties.

[5]

The motion to introduce fresh evidence is dismissed. The evidence
    proffered does not satisfy the test for admission of fresh evidence on appeal.
    The evidence consists of material that was available at the time the two orders
    under appeal were heard. It relates to earlier proceedings and has no direct
    relevance for bearing on these appeals and is proffered as part of the
    appellants effort to re-litigate issues and orders that are not subject to the
    present appeals.

GROUNDS OF APPEAL

Dismissal of motion to vary support

[6]

The appellant failed to persuade us that the motion judge erred in
    refusing his last-minute request for an adjournment, striking his pleadings and
    dismissing his motion to vary the support order. The motion judge found that
    the appellant failed to demonstrate that he could not satisfy the various costs
    orders made against them in the proceedings and noted that he had failed to
    appeal those costs orders. The motion judge clearly recognized the importance
    of allowing parties to present their case and advance their position. He also
    recognized that striking a pleading is a remedy of last resort. The motion
    judge concluded, however, that striking the appellants pleadings was
    appropriate because of the appellants wanton noncompliance with court orders
    and his egregious behaviour in attempting to escape the reach of the court. The
    motion judge observed that in the face of this mountain of historical
    non-compliance, the appellant had made absolutely no attempt to bring himself
    into compliance, or to adequately explain non-compliance.

[7]

Striking a pleading and denying party the right to be heard on a motion
    is a drastic remedy of last resort. We are satisfied, however, that the record
    in this case provided a sufficient basis upon which the motion judge could
    exercise his discretion. The record demonstrates a consistent and unyielding
    pattern of noncompliance with court orders and a total disregard for the
    process of the court on the part of the appellant. The appellant frequently used
    appeals as an instrument of delay; appeals were brought to buy time but then
    not pursued. We reject the appellants contention that he has been improperly
    or unfairly denied his day in court. He refused to follow the rules or to obey
    the orders of the court. In so doing, he chose not to avail himself of the numerous
    opportunities for meaningful participation that the ordinary process provides.
    In these circumstances we cannot say that the motion judge erred by striking
    his pleadings and dismissing his motion.

Enforcement order

[8]

We do not see any error on the part of the judge who made the
    enforcement order at the request of the Family Responsibility Office. The
    appellant had been given several adjournments to prepare his case and the judge
    did not err in refusing yet another adjournment. The appellant was not denied
    his day in court. He failed to avail himself of the procedural rights accorded
    by the
Family Responsibility and Support Arrears Enforcement Act,
including
    the right pursuant to s. 41(9) to demonstrate his inability to satisfy the
    support order.

Judicial bias

[9]

Finally, we see no merit in the appellants allegations of judicial
    bias. No doubt, through his repeated noncompliance with court orders, the
    appellant attracted disfavour from the judges of the Family Court. Disfavour so
    provoked, however, does not amount to judicial bias.

Conclusion

[10]

At the end of the day, we are satisfied that the appellant is the author
    of his own  misfortune. He has only been deprived of the right to fully
    participate in the proceedings because of his own failure to comply with court
    orders and to respect the Rules of Court and the deadlines they impose.

[11]

Accordingly, the appeals are dismissed.

[12]

If the respondents seek costs we will receive brief written submissions.

W. Winkler C.J.O.

Robert J. Sharpe J.A.

J.D. Cunningham A.C.J.
    (
ad hoc
)


CITATION:
Attis v. Ontario, 2011
          ONCA 675

DATE: 20111031

DOCKET: C52776

COURT OF APPEAL FOR ONTARIO

Sharpe, Epstein JJ.A. and Cunningham A.C.J. (
ad hoc
)

BETWEEN

S. Joyce Attis and A. Tesluk

Appellants

and

Her Majesty the Queen in Right of Ontario, as
          Represented by the Minister of Health, the Attorney General for Canada
et
          al.

Defendants (Respondent)

Samuel S. Marr, for the appellant, Attis

A. Tesluk, appearing in person

J. Brian Casey and David Gadsden, for the appellants, Legge
          and Legge & Legge

Paul J. Evraire, Q.C., Shain Widdifield and James Soldatich,
          for the respondent, Attorney General for Canada

Heard:  September 26, 2011

On appeal from the order of Justice
          Cullity of the Superior Court of Justice dated September 10, 2010.

Cunningham A.C.J. (
ad hoc
):

[1]

This is an appeal by John B.J. Legge & Legge, Barristers and
    Solicitors (the firm) from the order of Cullity J. dated September 10, 2010
    (the order).  Cullity J. ordered the appellant to indemnify the plaintiffs
    for costs awards previously made in this action, including costs awarded to the
    Attorney General for Canada (the AG) in a previous appeal to this court as
    well as costs of an unsuccessful application for leave to the Supreme Court of
    Canada.  The basis of the decision was that the plaintiffs had not given the
    appellants authority to bring the action because they had not properly advised
    the plaintiffs of their potential exposure to costs.  Simply put, Cullity J.
    found that:

1)

the plaintiffs had not been properly advised of their potential exposure
    to costs in the event of the dismissal of the class proceeding (as it was);

2)

uninformed consent or authority to proceed is not consent or authority;
    and

3)

when a solicitor commences an action without consent or authority from a
    client, the solicitor should be personally liable for costs.

[2]

In arriving at his conclusion, Cullity J. relied upon Rules 15.02(4),
    and 57.07(1)(c) of the
Rules of Civil Procedure
, O. Reg. 575/07, s. 6(1).
    As well, the motions judge relied upon the courts inherent jurisdiction with
    respect to the conduct of counsel.

[3]

By way of background, the plaintiffs certification motion in the
    underlying action was dismissed by Winkler J. (as he then was) on May 3, 2007.
    Costs were awarded to the AG against the plaintiffs in the amount of $125,000.

[4]

Following the dismissal of the certification motion, the plaintiffs
    appealed to the Court of Appeal which, on September 30, 2008 dismissed the
    appeal, awarding costs to the AG in the sum of $40,000.  It should be noted
    that the AG at no time requested that these costs should be borne by the
    appellants.  Nor was any criticism of plaintiffs counsel registered.

[5]

An application for leave to appeal to the Supreme Court of Canada was
    dismissed on April 23, 2009 with costs of $1,086.10 being awarded to the AG.

[6]

In June 2009, the AG was informed by appellants counsel that the
    plaintiffs were impecunious.  Then in July 2009, the plaintiff Attis commenced
    proceedings against the appellants alleging negligence for not advising her of
    the potential of personal liability for costs.  This action was defended and is
    currently in limbo.

[7]

The next event occurred in November 2009 when the AG brought a motion
    before Cullity J. seeking to reopen the issue of costs and requesting that the
    costs awarded to the AG throughout become the responsibility of the appellants.
    In this motion for directions, the AG relied upon s. 97 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, s. 12 of the
Class Proceedings Act
,
    S.O. 1992, c.6 and Rule 59.06(2)(c).

[8]

After hearing argument, Cullity J. agreed with the appellants
    contention that he lacked jurisdiction.  Nevertheless, rather than simply
    dismissing the motion, Cullity J. offered suggestions as to what steps the AG
    might take, including amending the motion in order to proceed under Rule
    15.02(a).  Accordingly, the motions judge adjourned the motion
sine die
in order to give the AG an opportunity to consider its position with respect to
    the issue of informed consent.

[9]

At a case conference on March 16, 2010, Cullity J. permitted the AG to
    amend its motion with a proviso that the appellants were not to be precluded
    from challenging jurisdiction.  For procedural purposes, the motions judge
    directed that affidavit evidence would become examination-in-chief and that the
    deponents could be cross-examined in open court.  Production of all relevant
    documentation was to be made beforehand.  Two further case conferences were
    held in June and July, 2010 and on both occasions the appellants requested the
    matter be stayed to permit them to appeal these procedural directions.  These
    requests were denied and the motion proceeded over four days commencing July
    12, 2010.

[10]

Five issues are raised by the appellants:

1)

Did the motions judge err in finding he had jurisdiction under the
    courts inherent jurisdiction or under Rule 15 to award costs for want of
    authority on the respondents motion?

2)

Does Rule 57 have any application?

3)

Did the motions judge err in his application of breach of warranty of
    authority?

4)

Was there procedural unfairness in this summary proceeding; and

5)

Did the motions judge create a reasonable application of bias?

[11]

We shall only deal with the first four grounds as we see no merit in the
    fifth.  As all of the four issues with which we shall deal engage questions of
    law, the standard is correctness.

Was there a misapplication of inherent jurisdiction and Rules 15.02(4),
    57.07(1)(c) and 59.06(2)(a)?

[12]

In urging us to find that the motions judge had jurisdiction, the AG submits
    that the solicitor-client relationship is inherently one of dependency in which
    counsel has a duty to warn clients so they fully understand potential risks
    before steps are taken.  When it appears a wrong has been committed, the
    courts inherent jurisdiction provides a mechanism by which a remedy may be
    fashioned.  Indeed, the AG argues, the court on its own motion could have
    instituted this procedure as a means of controlling its process.  This, they say,
    goes to the core jurisdiction of a Superior Court.

[13]

With respect to Rule 15.02(4), it is the AGs position that any consent
    the plaintiffs might have given the appellants to proceed was not informed and,
    therefore, they were not authorized to commence the proceeding.  Accordingly,
    pursuant to this Rule, they should be liable to pay the costs of the proceeding.

[14]

Not surprisingly, the appellants have a different view of the issue.
    While they appreciate the courts inherent jurisdiction and the ability to
    craft procedures and to control its process, there can be no unfettered
    jurisdiction to correct all wrongs.  There must be a legal right involved.  A
    defendant has no right to inquire into the legal advice given to the plaintiff
    by the plaintiffs lawyer.  That is purely a matter between solicitor and
    client.  We agree.

[15]

Rule 15 is designed to terminate proceedings where a named plaintiff has
    not authorized commencement.  The proceedings here, without question, were
    commenced with the plaintiffs authority.  Even if the plaintiffs did not
    understand the costs implications of initiating proceedings, that could not
    invalidate or nullify the authority they conferred upon their counsel to
    commence the proceedings.  If there is any question concerning the legal advice
    the plaintiff received before conferring that authority, it is a matter between
    the solicitor and the clients.  It is for an aggrieved party to take steps and,
    as it turns out, that is exactly what the plaintiff Attis did.  On July 13,
    2009, she commenced proceedings in negligence against John B. J. Legge and
    Legge & Legge seeking damages of $250,000.

Does Rule 57 have any application?

[16]

With respect to Rule 57.07(1)(c), we agree with the appellants that this
    Rule is to be used only in exceptional circumstances and has no application
    here.  The motions judge acknowledged that the conduct of Mr. Legge was without
    reproach throughout and there was no issue raised in this regard before Winkler
    J., the certification judge.

Did the motions judge err in his application of breach of warranty of
    authority?

[17]

As to whether the learned motions judge misapplied the law of breach of
    warranty of authority, we agree with the appellants position.  Cullity J.
    ordered the appellants to pay the respondents costs for breach of their implied
    warranty of authority.  Without question an agent is deemed to have his
    principals authority when he purports to act or make any contract on behalf of
    the principal.

[18]

A breach of warranty occurs when one creates an impression of agency when
    none exists.  Thus an agent who enters into a contract with a third party on
    behalf of a principal, by implication, warrants that he or she has authority.
    If it turns out that the agent did not have the requisite authority, the agent
    may be liable to the third party.

[19]

The following discussion of a passage from the Waddams text on the Law
    of Damages referred to in
Royal Bank v. Starr (c.o.b. as Ettmor Ltd.)
,
    [1985] O.J. 1763 is useful:

The imposition of liability on an agent for breach
    of warranty of authority is on the borderline between contract and tort and has
    sometimes been said to be an instance of strict liability for innocent
    misrepresentation.

But if the juridical basis of the action were
    tortuous, one would expect damages to be measured by the loss to the plaintiff,
    if any, rather than by the gain he would have made if the agent really had had
    authority.  It is the latter measure that has been universally adopted.

Professor Waddams in his text at p. 327 para. 571
    states:

The damages against the purported agent
    are measured by what the plaintiff would in fact have gained had the defendant
    actually had authority.
It has often been stressed that this is not
    always the same as the damages that would have been recovered in an action
    against the alleged principal.  [Emphasis added]

[20]

Assuming without deciding that breach of warranty of authority would
    apply, in the present case, such a breach could not have provided the
    respondent with recoverable damages.  Because the late Ms. Attis and Ms. Tesluk
    were impecunious, even if they had provided authority to Mr. Legge and lost,
    the AG would not have recovered costs from them.  To award the AG costs now
    would be to put the AG in a better position than if the action had proceeded
    with authority and failed.  As was stated in
Skylight Maritime SA v. Ascot
    Underwriting et al.
, [2005] EWHC 15 (Comm) at para. 20:

[A] claim for breach of warranty of authority cannot
    be deployed to put the promisee in a better position than if the warranty had
    been true.  Thus, if a supposed client is insolvent, substantial damages for
    breach of a solicitor warranty of authority will not normally be recoverable
    because the promisee would not have been able to recover costs against the
    client even if the solicitor had authority to act.

[21]

We agree with this assertion.

Was there procedural unfairness?

[22]

The appellants also urge us to find that the procedure adopted by
    Cullity J. was unfair.  Because of our conclusions with respect to the first
    three issues, it is not be necessary to deal extensively with this issue.
    However, some comment is needed.

[23]

Given that one of the original class plaintiffs, the late Ms. Attis, had
    commenced proceedings against Mr. Legge and his firm before the AGs November
    2009 motion, it is argued that by proceeding as he did, Cullity J. created an
    unnecessary multiplicity of proceedings.  We strive in Ontario to avoid multiplicity.
    Indeed, s. 138 of the
Courts of Justice Act
states:

As far as possible, multiplicity of legal
    proceedings shall be avoided.

[24]

The motions judge, being aware of the late Ms. Attis civil proceeding
    and given the almost identical relief sought, should have directed the action
    to proceed which would have engaged all the usual pre-trial mechanisms.  The
    rather unconventional approach taken by the motions judge, in the face of an
    existing civil action, was one that ought to have been avoided.  While perhaps
    not unfair, it would at the very least have been preferable, given the
    seriously conflicting positions, to direct a trial of the issue pursuant to
    Rule 37.13.  This could easily have taken place at the same time as the trial
    of the Attis action.  While appellants counsel may not have explicitly
    requested a trial of the issue, she did strongly argue throughout that the
    procedure proposed by Cullity J. was inappropriate.

[25]

As earlier noted, we see no merit in the suggestion that Cullity J.
    created a reasonable apprehension of bias.

[26]

For the reasons given above, we allow the appeal and set aside the order
    of Cullity J.  The appellants shall have their costs which by agreement we fix
    at $35,000, all inclusive.  Counsel for Ms. Attis shall have his costs which we
    fix at $2,500, all inclusive.

RELEASED:
RJS OCT 31 2011

Cunningham A.CJ.
ad hoc

I agree Robert J. Sharpe J.A.

I agree G.J. Epstein J.A.


CITATION:
Canadian Broadcasting
          Corporation v. Ontario, 2011 ONCA 624

DATE: 20111005

DOCKET: M40042 (C52813)

COURT OF APPEAL FOR ONTARIO

Doherty, Weiler and Laskin JJ.A.

BETWEEN

Canadian Broadcasting Corporation

Applicant

(Respondent in appeal/Moving party)

and

Her Majesty the Queen

Respondent

(Respondent in appeal/Responding party)

and

Isahaq
          Omar

Respondent

(Appellant in appeal/Responding party)

Iain A.C. MacKinnon, for the moving party

Gail Glickman, for the responding party Her Majesty the Queen

Dirk Derstine, for the responding party Isahaq Omar

Heard:  September 22, 2011

On a motion to quash the appeal
          from the order of Justice Mary Lou Benotto of the Superior Court of Justice
          dated July 28, 2010, with reasons at 2010 ONSC 4221 (unreported).

Doherty J.A.:

I

[1]

The Canadian Broadcasting Corporation (CBC) applied to the Superior
    Court for an order granting it access to a video in the custody of the Ontario
    Court of Justice.  The video had been entered as an exhibit at the appellant Mr.
    Omars bail hearing.

[2]

Mr. Omar and the Crown opposed the CBCs application.  The application
    judge granted CBC access provided that the appellants identity would be
    obscured in any subsequent use of the video by the CBC.  Mr. Omar appeals from
    that order.

[3]

The CBC moved to quash the appeal on the basis that this court has no
    jurisdiction and that Mr. Omars appeal is to the Supreme Court of Canada with
    leave from that court pursuant to the
Supreme Court Act
, R.S.C. 1985, c.
    S-26, s. 40(1).  The Crown supported the CBCs motion.  Mr. Omar resisted the
    motion and submitted that the appeal lies to this court under s. 6(1) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[4]

Counsel agreed that the outcome of the motion turned on the proper characterization
    of the application before the Superior Court judge.  If that application was a
    civil proceeding, an appeal could be taken to this court under the
Courts of
    Justice Act
.  If, however, the proceeding was properly characterized as
    criminal, there was no appeal to this court under the
Criminal Code
,
    R.S.C. 1985, c. C-46 or any other statute.

[5]

At the end of oral submissions, we advised counsel that the motion to
    quash failed.  These are our reasons for dismissing the motion.

II

[6]

The video was seized from Mr. Omar on August 11, 2005 at the time of his
    arrest on weapon charges.  It shows Mr. Omar and other young Somali-Canadians
    displaying gang symbols, making threatening gestures and showing off various
    weapons.

[7]

The video remained in the possession of the police until 2008, when Mr.
    Omar and two others were charged with various weapons-related offences.  These
    charges were unrelated to the 2005 charges.

[8]

At Mr. Omars bail hearing on the 2008 charges, the Crown introduced
    excerpts from the video and the video itself was filed as an exhibit.  Mr. Omar
    was ultimately detained in custody.  The justice of the peace indicated,
    however, that he did not rely on the video in deciding the application for bail.

[9]

Mr. Omar was ultimately acquitted on all the charges in July 2009.  There
    was no appeal by the Crown.

[10]

Sometime after Mr. Omars acquittal, the CBC approached the Crown prosecutor
    and requested access to the video filed on the bail hearing.  The CBC planned
    to use all or part of the video in a program examining the disproportionately
    high number of murders of young male Somali-Canadians and the connection of
    those murders to gang-related activity.  The Crown prosecutor advised the CBC that
    a copy of the video was in the Ontario Court of Justice court file but that, in
    keeping with the policy of the court, the CBC would require a court order to obtain
    access to that copy of the video.  The CBC launched this application in March
    2010.

[11]

In allowing the CBC application, the application judge applied the
    controlling authorities in
Dagenais v. Canadian Broadcasting Corp.
,
    [1994] 3 S.C.R. 835 and
R. v. Mentuck
, [2001] 3 S.C.R. 442.  She
    concluded that the CBC was entitled to access the video, but that it must
    obscure Mr. Omars face if it used the video in a broadcast.

III

[12]

We agree with counsel that this courts jurisdiction to hear the appeal
    turns on the characterization of the proceedings before the application judge.
    If the proceeding is civil, the appeal is properly brought in this court under
    the
Courts of Justice Act
.  If the proceeding is criminal, there is no
    appeal to this court and the appellants only appeal route is to the Supreme
    Court of Canada with leave of that court under s. 40(1) of the
Supreme Court
    Act
.

[13]

Counsel for the CBC argues that the proceedings are criminal for two
    reasons.  First, the video came into the possession of the court in the course
    of a criminal proceeding.  Second, the effect of the order sought by the CBC is
    to deny to the Crown and Mr. Omar what would be tantamount to a sealing order
    in respect of the video.  Counsel submits that applications that engage the s.
    2(b) rights of third parties in connection with access to materials filed in a
    criminal proceeding are criminal in nature.  Counsel also observes that to the
    extent that the form and venue of the application are relevant to the
    characterization of the proceeding, this application was treated as a criminal
    matter in the Superior Court.

[14]

Crown counsel supports the CBCs position and goes somewhat further.
    She submits that any application for the return of, or access to, an exhibit
    filed in a criminal proceeding is itself a criminal proceeding no matter when,
    where, why, or by whom that application is brought.

[15]

Counsel for Mr. Omar begins with the observation that the criminal
    proceedings against his client are long over and that the non-publication order
    made on the bail hearing terminated with his acquittal.  He further submits
    that the application brought by the CBC does not in any way engage any order
    that was made in his criminal proceedings.  Counsel submits that the CBC
    mischaracterizes the application as one in which the Crown and Mr. Omar seeks
    to continue the publication ban.  Counsel argues that by its application, the
    CBC sought access to Mr. Omars property which, as it happens, continues to be
    held by the Ontario Court of Justice.  As counsel succinctly put it, this case
    is about property.

IV

[16]

It is important for the administration of justice that litigants be able
    to readily determine the appropriate forum in which to bring a proceeding,
    including an appeal.  Appeals are purely creatures of statute:  see
R. v.
    Meltzer
, [1989] 1 S.C.R. 1764, at p. 1773.  Appeals in civil matters are
    governed by provincial legislation, most notably the
Courts of Justice Act
.
    Appeals in criminal matters are governed by federal legislation, most notably
    the
Criminal Code
:  see
Kourtessis v. Canada (Minister of National
    Revenue  M.N.R.)
, [1993] 2 S.C.R. 53, at pp. 69-75.  The characterization
    of a proceeding as civil or criminal is, therefore, a crucial first step in
    determining the appropriate forum, if any, in which to launch an appeal.

[17]

Usually, it will not be difficult to distinguish a criminal proceeding
    from a civil proceeding.  An application for an order made in the course of a
    criminal proceeding, an application for an order directly impacting on an
    ongoing or pending criminal proceeding, or an application for an order
    rescinding or varying an order made in a criminal proceeding will all be criminal
    proceedings:  see
Canadian Broadcasting Corp. v. The Queen
, [2011] 1 S.C.R.
    65;
R. v. Adams
, [1995] 4 S.C.R. 707;
Dagenais
;
French Estate
    v. Ontario (Attorney General)
(1998), 122 C.C.C. (3d) 475 (Ont. C.A.),
    leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 139.

[18]

The order under appeal does not fit into any of the categories set out
    above.  It was not made in the course of a criminal proceeding and has no
    effect on any ongoing criminal proceeding.  Indeed, there is no ongoing
    criminal proceeding.  Nor does the order obtained by the CBC rescind or vary
    any order made in a criminal proceeding.  The only order made in the criminal
    proceeding that could potentially be affected is the non-publication order made
    at the bail hearing.  However, all counsel agree that the non-publication order
    ended with the acquittal.

[19]

Counsel for the CBC relies heavily on
Dagenais
.  In that case,
    four accused sought injunctions prohibiting the broadcast of a television
    program that they claimed would prejudice their right to a fair trial.  The
    trial of one of the accused was underway, pre-trial proceedings were ongoing
    for the second, and the trials of the other two were scheduled to begin in the
    immediate future.

[20]

Chief Justice Lamer, for the majority, described the issue before the
    court in these terms at p. 856:

This case turns in part on the issue of jurisdiction

what court(s) have jurisdiction to hear a third party challenge to a
    publication ban order sought by the Crown and/or the defendant(s) in a criminal
    proceeding
and made by a provincial or superior court judge under his or
    her common law or legislated discretionary authority?  [Emphasis added.]

[21]

Lamer C.J.C. characterized the application in that case as a publication
    ban sought in a criminal proceeding even though the applicants had styled the
    application as a request for an injunction, a civil remedy.

[22]

In rejecting the contention that the proceedings were civil in nature
    and gave rise to a right of appeal under the
Courts of Justice Act
, the
    Chief Justice said at p. 864:

Second, we are dealing here with media challenges to
    publication bans ordered by judges under their common law or legislated
    discretionary authority in
response to a request for a ban made by the Crown
    and/or by individuals charged (or at risk of being charged) with criminal
    offences.
Such challenges are criminal matters, not civil ones.  [Emphasis
    added.]

[23]

At p. 879, the Chief Justices characterization of the orders as being
    made in a criminal proceeding flowed directly from what he saw to be the purpose
    underlying the orders made at first instance:

The objective of the ban ordered in the case at bar
    was the diminution of the risk that the trial of the four accused persons might
    be rendered unfair by adverse pre-trial publicity.  This objective reflects the
    interest that the accused persons shared with both the public and the courts in
    ensuring both that a trial be held and that it be fair.

[24]

On the Chief Justices analysis, the orders requested in
Dagenais
,
    while styled as applications for injunctions, were in reality applications to
    prohibit publication of certain information that was seen as posing an
    immediate threat to the fair trial rights of several accused who were engaged in
    criminal proceedings that were either underway or were scheduled to begin in
    the immediate future.  The orders were seen as protective of the administration
    of criminal justice and, in particular, the accuseds right to a fair trial.  Viewed
    in that light, it is hardly surprising that the Chief justice characterized the
    proceedings as criminal.

[25]

In
Mentuck
, a second authority relied on by the CBC, the impugned
    order was made by the trial judge during the criminal trial.  The proceedings
    could not be characterized as anything but criminal.

[26]

Similarly, in
Adams
, the third authority relied on by the CBC,
    the order lifting a publication ban on the name of the complainant was made by
    the criminal trial judge at the same time that he acquitted the accused.  Once
    again, the order was clearly made during the criminal trial by the trial
    judge.

[27]

The present case is readily distinguishable from the cases relied on by
    the CBC.  Here, the criminal proceedings are over.  Mr. Omars fair trial
    rights are no longer at play.  Nor does the order under appeal rescind or vary
    any order made in the criminal proceedings.  In short, it has nothing to do
    with any criminal proceeding other than that it provides access to an exhibit
    tendered in a criminal proceeding.

[28]

I would characterize the order sought as simply a request that the
    Superior Court exercise its authority over exhibits in the possession of the
    Ontario Court of Justice.  This motion is, of course, not concerned with the
    existence or extent of that authority.
[1]
However, the exercise of that authority is neither inherently criminal nor
    civil.  I see no reason to characterize an application for access to an exhibit
    exclusively by regard to the nature of the proceedings in which the exhibit was
    filed when those proceedings are no longer in existence.

[29]

I also cannot accept the CBCs submission that the nature of the issues
    raised on the application for access should dictate whether the proceeding is
    criminal or civil.  Why should a dispute between two parties over ownership of
    an exhibit in the possession of the court be characterized as civil, but a
    dispute over CBCs access to the exhibit for its journalistic purposes be
    characterized as criminal?  Constitutional concerns that arise on an
    application like that brought by the CBC can and do arise in both criminal and civil
    proceedings:  see
Hollinger Inc. v. The Ravelston Corp.
(2008), 89 O.R.
    (3d) 721 (C.A.), leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 260.

[30]

On the application, the CBC relied on the open court principle and, more
    broadly, the principles underlying s. 2(b) of the
Charter
in seeking
    access to the exhibit.  Mr. Omar relied on his property rights and his privacy
    rights in resisting the CBCs request for access.  The Crown raised concerns
    about protecting innocent third parties, the effective investigation of other
    criminal activity and the maintenance of the integrity of the material in the
    possession of the criminal courts.  All of these interests can be fully vetted
    and assessed under the
Dagenais
/
Mentuck
principles regardless of
    the characterization of the proceedings as criminal or civil.  Those principles
    will apply regardless of the characterization.  The ability of each of the
    parties to present their issues and make the case for or against access is in
    no way prejudiced by the characterization of the proceeding as criminal or
    civil.

[31]

In characterizing the proceeding, however, it is important to emphasize
    what is not at stake.  Mr. Omars fair trial rights and any other right he has
    arising from his former status as an accused are not in any way engaged by this
    application.  Whatever order is made, it will not impact on his criminal trial
    rights or the criminal proceedings that were brought against him.  Those
    proceedings were fully and finally disposed of well before this application was
    brought.

[32]

Where the criminal proceedings in which the exhibit was tendered are
    complete and the order sought does not affect any order made in the criminal
    proceedings, or the criminal trial rights of any accused, there is no reason to
    characterize the proceedings as criminal.  Those proceedings should be subject
    to the generally applicable rights of appeal granted in civil proceedings.

[33]

The conclusion I reach is consistent with the assumption of jurisdiction
    by this and other courts in cases where appeals were taken from orders granting
    or denying access to exhibits after the criminal matters in which the exhibits
    were filed were completed.  None of those cases, however, addressed the
    jurisdictional question:  see
Vickery

v. Nova Scotia Supreme Court
    (Prothonotary)
(1989), 91 N.S.R. (2d) 126 (N.S.C.A.), affd [1991] 1 S.C.R.
    671;
CTV Television Inc. v. Ontario Superior Court of Justice (Toronto
    Region)
(2002), 59 O.R. (3d) 18 (C.A.);
R. v. Hogg
(2006), 208 Man.
    R. (2d) 244 (C.A.);
R. v. Fry
(2010), 254 C.C.C. (3d) 394 (B.C.C.A.).
[2]

[34]

The characterization of the proceedings as civil also has a functional
    benefit.  If the proceedings are characterized as civil, the losing party
    enjoys a right of appeal to this court.  If the proceedings are characterized
    as criminal, that party would have no right of appeal to any court, but would
    be required to seek leave to appeal to the Supreme Court of Canada and hope to
    secure one of the necessarily limited orders granting leave to appeal made by
    that court.  Access to appellate review is enhanced if the proceeding is a civil
    one.

[35]

Characterizing this proceeding as civil also enhances the overall
    effectiveness of the administration of justice by allowing the matter to
    proceed through all stages of the judicial hierarchy beginning with the initial
    hearing, through the intermediate court of appeal and, if necessary, to the
    Supreme Court of Canada.  Intermediate courts of appeal play a meaningful role
    in the resolution of individual cases and the development of a coherent and
    effective jurisprudence.  Appeal routes that pass through intermediate courts
    of appeal allow those courts to perform those functions.  Furthermore, in the
    circumstances of this case where there is no ongoing criminal proceeding, a
    right of appeal to an intermediate court does not raise the spectre of delays in
    an ongoing criminal proceeding while a third party appeal works its way through
    the civil appellate process.

[36]

For the reasons set out above, Mr. Omars appeal is properly brought to
    this court pursuant to s. 6(1) of the
Courts of Justice Act
.  The motion
    to quash is dismissed.  The appeal should proceed.

RELEASED:
DD  OCT 05 2011

Doherty J.A.

I agree K.M. Weiler J.A.

I agree J.I. Laskin J.A.

[1]
Nor is this motion concerned with the jurisdiction of the Ontario Court of Justice
    to order access to the video, or assuming that jurisdiction the proper
    characterization of that proceeding.

[2]
I note that in
Fry
, the criminal trial had been completed when the
    application was made for access, but an appeal was pending in the criminal
    proceeding.


CITATION:
Geodis Wilson Canada Ltd. v. J & B Furniture
          Inc., 2011 ONCA 678

DATE: 20111031

DOCKET: C53579

COURT OF APPEAL FOR ONTARIO

Blair and Juriansz JJ.A. and Pepall J. (
ad hoc
)

BETWEEN

Geodis Wilson Canada Ltd.

Plaintiff (Respondent)

and

J & B Furniture Inc.

Defendant (Appellant)

Patrick Di Monte, for the appellant

Christopher Afonso, for the respondent

Heard:
October 27, 2011

On appeal from the order of Justice P. Theodore Matlow of the
          Superior Court of Justice dated March 16, 2011.

APPEAL BOOK ENDORSEMENT

[1]

Both parties agree that the motion judge erred in granting a partial
    award for storage and detention/demurrage charges in an arbitrary amount that
    appears to have no basis in the record and in sending the balance of the
    storage/detention/demurrage charges dispute to trial.  The appeal is therefore
    allowed and that portion of the summary judgment is set aside.

[2]

The real debate is over what flows from that decision.  The appellant
    submits that the entire matter of the disputed changes should be sent to
    trial.  Geodis Wilson cross-appeals arguing that it should be entitled to
    summary judgment for the full amount of the disputed charge claimed.  We agree
    with Geodis Wilson.

[3]

On the materials before us, the defence raised before the motion judge
    was that Geodis Wilson was not entitled to claim the disputed charges at all.
    The reasonableness of the quantum of the claim or the fact that the plaintiff
    had not proved its invoices are not put in play on the record.  The defendant is
    obliged to put its best foot forward on a motion for summary judgment and in
    our view the appellant has failed to do so here.  Once it has been establish
    that Geodis Wilson was entitled to a lien  as the motion judge found  the
    disputed charges followed and in the absence of an evidentiary basis as to
    dispute or to quantum, we see no triable issue with respect to the disputed
    charges.

[4]

The cross-appeal is allowed and Goedis Wilson is entitled to judgment in
    the full amount claimed for unpaid storage and detention/demurrage charges.  We
    note that the cross-appeal was heard pursuant to s. 6(2) of the
Courts of
    Justice Act
.

[5]

Costs to Geodis Wilson fixed in the amount of $3000 all inclusive, as
    agreed.