COURT OF APPEAL FOR ONTARIO

CITATION: Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA
    873

DATE: 20171116

DOCKET: C62948

Strathy C.J.O., Cronk and Pepall JJ.A.

BETWEEN

Nadesan Krishnamoorthy

Plaintiff (Respondent)

and

Olympus Canada Inc.

Defendant (Appellant)

George Avraam and Jeremy Hann, for the appellant

Matthew Fisher and Ian Hurley, for the respondent

Heard: May 11, 2017

On appeal from the judgment of Justice Grant R. Dow of
    the Superior Court of Justice, dated September 28, 2016.

Pepall J.A.:

[1]

The appellant employer, Olympus Canada Inc. (Olympus Canada), appeals
    from a summary judgment award of damages in favour of its former employee, the
    respondent Nadesan Krishnamoorthy, in the amount of $310,040.88.  This sum
    represents 19 months pay in lieu of notice, plus prejudgment interest and
    costs.

[2]

The issue on appeal is a narrow one: did the motion judge err in
    concluding that the termination clause in the parties employment agreement was
    unenforceable due to a lack of consideration?  Mr. Krishnamoorthy did not
    cross-appeal but raises other issues that the motion judge declined to address
    given his finding that Olympus Canada had failed to provide Mr. Krishnamoorthy
    with valid consideration.  Mr. Krishnamoorthy also asks this court to admit
    fresh evidence.

[3]

For the following reasons, I would allow the appeal, dismiss the motion
    for admission of fresh evidence, and remit the action to trial.

(1)

Background

[4]

The relevant facts may be briefly summarized.

[5]

Olympus America Inc. (Olympus America) carries on an optical sciences
    business in the United States.  Carsen Group Inc. (Carsen), an unrelated
    company, carried on business as an exclusive distributor for Olympus Americas
    products in Canada.

[6]

In May 2000, Mr. Krishnamoorthy commenced employment with Carsen as a
    senior financial analyst.  By 2005, he had been promoted to Director of
    Finance.

[7]

In 2005, Olympus America decided to terminate its distribution agreement
    with Carsen. Olympus America announced that a new, related company, Olympus
    Canada, would be established to distribute its products in Canada.  Olympus
    America terminated its distribution agreement with Carsen effective July 31,
    2006. Olympus Canada purchased some, but not all, of Carsens assets.

[8]

Carsen advised its employees, including Mr. Krishnamoorthy, that Olympus
    Canada had indicated their intent to offer employment to certain employees.  It
    also advised them that Carsen would provide an appropriate financial package
    for those employees not offered employment with Olympus Canada.

[9]

Carsen had 125 employees. Olympus Canada offered employment to 122 of
    them, one of whom was Mr. Krishnamoorthy.

[10]

In
    November 2005, Olympus Canada provided an offer of employment to Mr.
    Krishnamoorthy under the terms of a written employment agreement.  The terms of
    the agreement were substantially similar to those he had with Carsen with
    certain exceptions.  First, a termination clause limited the compensation Mr.
    Krishnamoorthy would receive in the event of termination without cause to the
    greater of (1) notice or pay in lieu of notice and severance pay under the
Employment
    Standards Act, 2000
, S.O. 2000, c. 41
    (the ESA),
or (2) four weeks pay per year of service with
    Olympus Canada or Carsen, up to a maximum of 10 months, if Mr. Krishnamoorthy
    signed a release.

[11]

In
    addition, the agreement provided that Mr. Krishnamoorthy would be treated as a
    new employee and, except as otherwise provided in the agreement or as required
    by applicable legislation, his service with any other employer would not be
    recognized.

[12]

The agreement
    also included a clause that released Olympus Canada and its affiliates from any
    claims that Mr. Krishnamoorthy might have in respect of his employment with
    and/or termination from Carsen or any other employer that had employed him.

[13]

Mr.
    Krishnamoorthy signed the employment agreement on December 16, 2005.  He did
    not receive a signing bonus or any other additional compensation for entering
    into an employment agreement with Olympus Canada.  Nor did he receive any pay
    in lieu of notice or severance pay from Carsen.  His employment was to start on
    August 1, 2006.

[14]

On April
    10, 2006, Carsen wrote to Mr. Krishnamoorthy confirming that his employment
    with Carsen would terminate on July 31, 2006 and that Mr. Krishnamoorthy had
    accepted an offer of employment with Olympus Canada.  Mr. Krishnamoorthy
    subsequently commenced his employment with Olympus Canada.

[15]

On May 19,
    2015, Olympus Canada dismissed Mr. Krishnamoorthy without cause.  Olympus
    Canada offered him compensation in accordance with the 2005 employment agreement.
     Mr. Krishnamoorthy refused the offer, commenced an action against Olympus
    Canada for damages for wrongful dismissal, and subsequently moved for summary
    judgment.

[16]

Before the
    motion judge, Mr. Krishnamoorthy took the position that, pursuant to s. 9(1) of
    the
ESA
, his employment with
    Carsen and Olympus Canada was continuous.  He argued that the termination clause
    in his 2005 employment agreement was unenforceable because Olympus Canada had failed
    to provide him with consideration for amending his employment agreement to
    include that clause.

[17]

In
    response, Olympus Canada argued that its offer of employment constituted sufficient
    consideration and, as such, the termination clause was binding.

[18]

The motion
    judge accepted Mr. Krishnamoorthys position.  He implicitly concluded that Olympus
    Canadas offer of employment did not amount to sufficient consideration and so
    the termination clause was invalid.  He awarded Mr. Krishnamoorthy damages
    equivalent to 19 months pay in lieu of notice.

[19]

In
    reaching that conclusion, the motion judge found that, upon the sale, Mr.
    Krishnamoorthys remuneration and duties, and the substance and nature of the
    business, all remained the same.  Insofar as s. 9(1) of the ESA was concerned,
    he noted that Olympus Canada did recognize this issue in the employment
    agreement but limited it to (10 years or 10 months notice).

(2)

Analysis

[20]

Olympus
    Canada submits that the motion judges decision ignores that Olympus Canada had
    no pre-existing employment agreement with Mr. Krishnamoorthy and had no legal
    obligation to make him an offer of employment.  In its submission, the ESA does
    not deem employment to be continuous for all purposes.  In these circumstances,
    Olympus Canadas offer of employment amounted to consideration for the
    termination clause.

[21]

Mr.
    Krishnamoorthy submits that there is no reason to interfere with the motion
    judges decision that there was a lack of consideration such that the
    termination clause is invalid.

[22]

I agree
    that the motion judge erred in concluding that there was no consideration for
    the termination clause and that therefore the clause was invalid.

[23]

In
Addison
    v. M. Loeb Ltd.
(1986), 53 O.R. (2d) 602 (Ont. C.A.), Dubin J.A. (as he
    then was) explained the position of an employee at common law when there is a
    sale of a business, at pp. 603-604:

At common law, since a contract of personal services cannot be
    assigned to a new employer without the consent of the parties, the sale of a
    business, if it results in the change of the legal identity of the employer,
    constitutes a constructive termination of the employment.

If the employee is offered and accepts employment by his new
    employer, a new contract of employment is entered into.

[24]

Applying
    those principles in this case, Mr. Krishnamoorthys employment with Carsen was
    terminated and he entered into a new contract with Olympus Canada upon the sale
    of the business.  At issue is whether there was consideration for that new
    contract.

[25]

It is well
    established that a promise to perform an existing contract is not
    consideration:
Holland v. Hostopia.com Inc
., 2015 ONCA 762, 392 D.L.R.
    (4th) 650, at para. 52.  In other words, new or additional consideration is
    required to support a variation of an existing contract:
Hobbs v. TDI
    Canada Ltd.

(2004), 246 D.L.R. (4th) 43 (Ont. C.A.); see also
Francis
    v. Canadian Imperial Bank of Commerce
(1994), 21 O.R. (3d) 75 (Ont. C.A.)  In
    this case, the motion judge, relying on
Hobbs

and
Francis
,
found that Olympus Canadas offer of employment did not constitute
    consideration and further concluded that
Hobbs
was indistinguishable.

[26]

However,
    that is not this case.
Hobbs

and
Francis

both
    involved employment with a single employer and not two different employers as
    is the case here.  The motion judge erred in disregarding the new contract of
    employment with Olympus Canada, who was a new employer upon its purchase of some
    of Carsens assets.  That Mr. Krishnamoorthys day-to-day job did not materially
    change after the sale does not change that fact.

[27]

Although s.
    9 of the ESA deems there to be continuity of employment if certain requirements
    are met, it does not deem there to be continuity for all purposes. Section 9(1)
    of the
ESA
states:

If an employer sells a business or a part of a business and the
    purchaser employs an employee of the seller, the employment of the employee
    shall be deemed not to have been terminated or severed for the purposes of this
    Act and his or her employment with the seller shall be deemed to have been
    employment with the purchaser for the purpose of any subsequent calculation of
    the employees length or period of employment.

[28]

In
Addison
,
    this court interpreted the substantially similar language of s. 13(2) of the
    predecessor Act:

Where an employer sells his business to a purchaser who employs
    an employee of the employer, the employment of the employee shall not be
    terminated by the sale, and the period of employment of the employee with the
    employer shall be deemed to have been employment with the purchaser for the
    purposes of Parts VII, VIII, XI and XII.

[29]

Dubin J.A.
    acknowledged in
Addison
, at p. 604, that this predecessor provision
    was enacted to avoid, to some extent,  unfairness to employees when the
    employer sells the business.  However, he rejected the argument that s. 13(2)
    deemed there to be continuity of employment for all purposes.

[30]

Similarly
    in this case, if the purpose of s. 9(1) of the ESA had been to deem there to be
    continuity of employment for all purposes, there would have been no reason to include
    the words for the purposes of this Act in the section.  These words make
    clear that s. 9(1) cannot be used to claim rights or entitlements on which the
    ESA is silent.

[31]

Section
    9(1) of the ESA does not deem the employment contract between an employee and
    an employer to bind a subsequent purchaser of some of that employers assets as
    was the case here.  Nor does s. 9(1) of the ESA require the purchaser of a
    business assets to offer employment to employees of that business on the same
    terms as their original contracts as claimed by Mr. Krishnamoorthy.  He cannot
    rely on s. 9(1) to achieve either of these effects.  He can only rely on s. 9(1)
    to claim those entitlements that are set out in the ESA itself.

[32]

This
    interpretation is consistent with this courts comments in
Abbott v.
    Bombardier Inc
.
, 2007 ONCA 233, 85 O.R. (3d) 21, at para. 18:

Viewed in the context of the entire statute, in our view,
the
    purpose of s. 9 of the ESA is to protect minimum statutory entitlements
that are related to length of employment where the purchaser of a business, or
    part of a business, continues to employ the employees of the vendor following
    the sale. Such entitlements include: vacation entitlements, entitlements to
    pregnancy and parental leaves, as well as entitlement to notice of termination
    or pay in lieu of notice and severance pay. [Emphasis added.]

[33]

Thus, on my
    reading, Mr. Krishnamoorthy cannot rely on s. 9(1) of the ESA to support his
    argument that Olympus Canadas offer of employment did not amount to
    consideration.

[34]

In short, Olympus
    Canadas offer of employment amounted to consideration for the termination
    clause.  The motion judge erred in concluding otherwise.

[35]

There are two
    further issues to be addressed.

[36]

The first
    is Mr. Krishnamoorthys motion to introduce fresh evidence.  He seeks to
    introduce fresh evidence in the form of the record of employment issued by Olympus
    Canada upon Mr. Krishnamoorthys termination of employment in 2015, which lists
    his start date of employment with Olympus Canada as being May 30, 2000.

[37]

The test
    for the admission of fresh evidence on appeal, described in
Sengmueller v.
    Sengmueller
(1994), 17 O.R. (3d) 208 (Ont. C.A.), at pp. 210-11,
    encompasses three components: is the evidence credible; could the evidence not
    have been obtained, by the exercise of reasonable diligence, prior to trial;
    and will the evidence, if admitted, likely be conclusive of an issue in the
    appeal?

[38]

The test
    for the admission of fresh evidence is not met.  The record of employment was
    available to Mr. Krishnamoorthy, through the reasonable exercise of due
    diligence, before the summary judgment motion was heard.  Furthermore, the
    record of employment would not have been conclusive of the issue of
    consideration engaged by this appeal.

[39]

The second
    issue is whether it is appropriate to address the alternative arguments Mr.
    Krishnamoorthy made before the motion judge and raises again on appeal.  Although
    he did not bring a cross-appeal, he argued in his factum and in oral
    submissions that, if Olympus Canada were successful on the consideration point,
    this court could consider whether the termination clause is invalid because it
    violates ESA requirements and whether the substratum of the contract was lost
    over the years.

[40]

As this
    court has stated on more than one occasion, termination clauses should be
    interpreted in a way that encourages employers to draft agreements that comply
    with the ESA: see, for e.g.,
Wood v. Fred Deeley Imports Ltd
.
,
    2017 ONCA 158, 134 O.R. (3d) 481, at para. 28;
North v. Metaswitch Corp
.
,
    2017 ONCA 790, at para. 19.  In other words, courts will scrutinize termination
    clauses closely for compliance with the ESA.

[41]

However, this
    court does not have the benefit of any factual findings beyond those relating
    to the narrow issue addressed by the motion judge.  I would therefore order
    that the action proceed to a trial of the remaining issues in dispute between
    the parties.

(3)

Disposition

[42]

For these
    reasons, I would allow the appeal, set aside the summary judgment, dismiss the
    motion to introduce fresh evidence, and order that the action proceed to trial.
     As agreed between the parties, Olympus Canada, as the successful party, is
    entitled to costs of the appeal in the amount of $15,000 inclusive of
    disbursements and applicable taxes.  The costs of the summary judgment motion
    are reserved to the trial judge.

Released:

GS                                         S.E. Pepall
    J.A.

NOV 16 2017                          I agree G.R. Strathy
    C.J.O.

I agree
    E.A. Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Levac v. James, 2017 ONCA 842

DATE: 20171103

DOCKET: C63132 and C63619

Blair, Juriansz and Miller JJ.A.

BETWEEN

Anne Levac

Plaintiff (Respondent)

and

Stephen Rose James
,
Nurse Doe
,
Sue-Ellen
    Solger, Izabella Gerbec, Erin Kostuch, Anita Takyi-Prah, Joana Nunes, Elizabeth
    Hicken, Marissa Allin, Rachel Schrijver, Annie Michaud, Anna Nudel, Elena
    Polyakova, Raymund Tanalgo, Jefferd Felix, Jason Foster, Paolo Galvez, Glenn
    Francesco
, Peter Rothbart and Rothbart Centre for Pain Care Ltd.

Defendant (Appellant)

Darryl A. Cruz and Erica J. Baron, for the appellant

Paul Harte and Maria Damiano, for the respondent

Heard: April 24, 2017

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated December 9, 2016 with reasons reported at
    2016 ONSC 7727.

B.W. Miller J.A.:

A.

OVERVIEW

[1]

A Toronto pain management clinic experienced a bacterial infection
    outbreak. Several patients became infected, including the respondent, Anne
    Levac, who fell severely ill after receiving epidural injections for pain
    management.  The appellant, Dr. Stephen James, an anaesthesiologist at the
    clinic, administered the epidural injections to Ms. Levac and other patients. Subsequent
    laboratory testing disclosed that Dr. James was colonized with the same strain
    of bacteria as six of the infected patients, including Ms. Levac.

[2]

Ms. Levac commenced an action against Dr. James, the clinic, the clinic nurses,
    and the clinic medical director. She alleged that Dr. James caused the outbreak
    by negligently implementing a substandard infection prevention and control
    practice.

[3]

Ms. Levac brought a motion seeking certification of a class action and a
    motion for partial summary judgment against Dr. James. Both motions were argued
    one after the other on the same day and the motion judge issued one set of
    reasons and one order disposing of both. The motion judge certified the class
    proceeding against all defendants and granted summary judgment against Dr.
    James, finding that he had breached his duty of care to members of the class,
    that specific causation had been established for those class members infected
    with the same strain of bacteria found on Dr. James, and general causation for
    the remainder of the class.

[4]

Dr. James appeals on two main bases. First, that the motion judge compromised
    procedural fairness when he certified and granted summary judgment on a formulation
    of the common issue that was different from the formulation that he had approved
    in an oral ruling when hearing the certification motion, immediately prior to
    hearing the summary judgment motion. Second, that the motion judge erred in
    finding that Dr. James breached his duty of care.

[5]

I would allow the appeal on the basis of the first issue. It is
    therefore unnecessary for me to address the second issue.

B.

BACKGROUND

[6]

Toronto Public Health (TPH) identified three cases of meningitis
    connected to the Rothbart Centre for Pain Care Ltd. (the Clinic).
    Consequently, TPH audited the Clinics infection prevention and control
    (IPAC) practices.

[7]

Healthcare practitioners develop IPAC practices to reduce the risk of
    infections. It is part of the professional responsibility of physicians to
    ensure that their IPAC practice is appropriate for any procedure that they undertake.
    Dr. James IPAC practice for administering epidural injections consisted of a 26-step
    procedure.

[8]

Through the audit, TPH investigators identified nine patients with
    serious infections requiring hospitalization who had received epidural
    injections performed by Dr. James at the Clinic between August 20 and November
    25, 2012. Eight of the nine infected patients tested positive for
staphylococcus aureus
, a pathogen that can cause life-threatening diseases.
    Six of the eight patients were found to have been infected with the same strain
    of
staphylococcus aureus
. Dr. James also tested positive for this
    strain. Seventeen other Clinic staff members were tested, and while five tested
    positive

for
staphylococcus aureus
, none of these infections
    matched the outbreak strain.

[9]

After Dr. James was informed that he was colonized with
staphylococcus aureus
, he stopped working and undertook decolonization
    treatment. He returned to work after testing confirmed that he was fully
    decolonized. He had been unaware of his infection, and did not know how it
    occurred or how long he had been colonized.

[10]

TPH
    prepared a summary of its investigation (the Public Health Report) which
    concluded there were multiple deficiencies in IPAC practice at the Clinic. The
    motion judge summarized the Public Health Reports key findings as follows: (1)
    Dr. James hand hygiene was not consistently or properly performed; (2) his
    alcohol-based hand rub routine lasted less than five seconds; (3) he touched
    surfaces after hand sanitizing but before wearing sterile gloves; (4) he used
    gloves that were too large for his hands; (5) he did not remove his wedding
    ring before procedures; (6) he applied his mask without performing hand
    hygiene; (7) he did not pinch the nose piece on his mask; (8) he did not wait
    for skin preparation to dry before inserting the needle into the epidural
    space; and (9) the sterile field used in his procedures was not appropriately
    covered or kept sterile.

[11]

The
    Public Health Report concluded that as a result of poor IPAC practice,
staphylococcus aureus
was transmitted from Dr. James to his patients.

C.

The Proceedings Below

[12]

Ms.
    Levac brought a negligence action against the clinic, Dr. James, and other
    clinic staff (the Defendants). In the proceedings below, she sought
    certification of the action as a class action. She also moved for partial
    summary judgment against Dr. James for breach of his duty of care.

The Positions of the Parties

[13]

Although
    none of the defendants opposed certification of the action, Dr. James and Ms.
    Levac disagreed as to the wording and scope of the common issues regarding
    breach of the duty of care. At the hearing of the certification motion, the
    motion judge considered the formulations suggested by each of them, and
    proposed a third formulation which was mutually acceptable to the parties. The
    summary trial then proceeded on the basis of the third formulation.

[14]

Both
    parties tendered expert evidence in support of their positions on the summary
    judgment motion. It should be noted that the TPH investigators who authored the
    Public Health Report did not provide affidavit evidence on the motion. The
    Public Health Report was appended as an exhibit to the affidavit of one of Ms.
    Levacs experts.

[15]

Ms.
    Levacs experts provided evidence indicating that the infection rate of the
    class members was significantly higher than would be expected, and that the
    high rate of infection could only be explained by a failure to use IPAC
    practice in accordance with the recognized standard of care.

[16]

The
    evidence from Dr. James experts was that his IPAC Practice was appropriate and
    consistent with the standard of care for physicians performing epidural
    injections.

The Motion Judges Decision

[17]

The
    motion judge certified the action as a class action, and granted partial
    summary judgment.

[18]

In
    his analysis of certification, the motion judge discarded the formulation of the
    breach of care common issue that he had certified at the certification hearing.
    Instead, he certified a fourth formulation, again of his own devising, but
    which the parties had no opportunity to consider. The motion judge assessed the
    merits of the summary judgment motion on the basis of the fourth formulation.

[19]

The
    motion judge granted summary judgment for Ms. Levac and the class members, finding
    that circumstantial evidence allowed him to conclude on a balance of
    probabilities that Dr. James breached his duty of care with respect to his IPAC
    practice.

[20]

The
    motion judge reasoned that the action was appropriate for summary judgment as the
    patients developed infections and neither party had any direct evidence about
    the acts or omissions that could explain why. Dr. James relied on evidence of
    his routine practice, and Ms. Levac had not been able to observe the
    injections. The motion judge concluded that the evidence adduced by Ms. Levac
    was sufficient to establish that Dr. James had breached his duty of care. That
    issue, therefore, did not need to be resolved at a trial.

[21]

The
    motion judge found that for those class members infected with the same strain
    of bacteria found on Dr. James, both general causation and specific causation
    were made out and they could proceed to quantify their damages. Other class
    members would need to prove specific causation and quantification of damages at
    individual issues trials.

D.

ANALYSIS

[22]

Dr.
    James appeals on two main bases.

[23]

First,
    he argues that he was denied procedural fairness when the motion judge reformulated
    the common issue certified at the hearing, and then certified and granted
    summary judgment on it, without providing the parties with notice or an
    opportunity to make submissions. The parties argued the summary judgment motion
    on the basis of the third iteration of the common issue, which the motion judge
    certified at the hearing.

[24]

Second,
    Dr. James argues that the motion judge erred in finding a breach of the duty of
    care, in the absence of any specific evidence on that issue from Ms. Levac. He
    argues that the motion judges analysis suffers from several flaws, including
    reliance on the summary of the Public Health Report, which was hearsay and
    inadmissible.

[25]

I
    agree with Dr. James that there was a procedural unfairness and for that
    reason, the appeal must be allowed and the matter sent back for a new
    certification motion. To provide full context for this conclusion, I will set
    out a procedural history of the certification of the common issue, before
    explaining why Dr. James was denied procedural fairness. Given that I would
    resolve the appeal on the basis of procedural fairness, it is unnecessary to
    address the further ground of appeal relating to the granting of summary
    judgment, since it will have to be argued afresh based upon the common issue as
    ultimately framed.

The Procedural History of the Common
    Issue

[26]

The
    common issue regarding breach of the standard of care initially proposed by Ms.
    Levac (Q1) was whether the Defendants breached the standard of care for
    infection control practices.

[27]

Dr.
    James objected to Q1 because it did not require a finding of
how
the
    standard of care had been breached. He also expressed concern that the question
    was worded too broadly, captured issues that would be better addressed in
    individual trials, and would result in an unworkable litigation procedure. He
    proposed an alternative (Q2):

(1)     What
    is the scope of the duty of care owed by the Defendants in relation to
    infection prevention and control across the entire population of Class Members?;
    and

(2)     Whether
    any of the Defendants invariable practices breached the standard of care in
    relation to infection prevention and control and if so, in what way or ways.

[28]

The
    motion judge, after hearing submissions from both parties, proposed a third
    formulation (Q3):

(1)     whether
    the defendants breached the standard of care required for infection prevention
    and control practices?; and

(2)     in
    what ways, if any, did the Defendants routine invariable IPAC practices breach
    the standard of care for infection control practices?

[29]

The
    parties agreed to this formulation. The motion judge made an oral ruling
    certifying Q3 as the statement of common issues regarding breach of the duty of
    care. The parties then made submissions on the summary judgment motion.

[30]

When
    the motion judge released his reasons on the summary judgment motion, Dr. James
    was surprised to find that the motion judge had replaced Q3 with a new Q4:

(1)

Did any defendant breach his, her, or its duty of care with respect to
    the design and/or performance of the Defendants invariable IPAC Practice?

[31]

Dr.
    James objects to Q4 for two substantive reasons. First, he argues that
    questions of performance of the IPAC practices are not truly common issues and therefore
    not suitable for resolution on a class-wide basis.

[32]

Second,
    Dr. James objects to the removal of the requirement to specify in what ways
    the IPAC practices breached the standard of care. He submits that Q4 requires
    only that the trier of fact affirm or deny that a duty of care was breached.
    This creates additional problems, he argues, in determining whether there is a
    causal connection between the breach and the injuries alleged across the class.

[33]

Dr.
    James, however, does not only object to the scope of the certified common
    issue. He also argues that the procedure followed by the motion judge
    specifically, (1) certifying a question devised by the motion judge himself,
    (2) without the benefit of submissions from counsel on the proposed
    formulation, and (3) after the conclusion of the hearing of the summary
    judgment motion that proceeded under a different certified common issue  was
    procedurally unfair.

[34]

In
    oral argument, Dr. James stated that he would have contested the certification
    of the class action had he been presented with Q4 as the common issue, and
    argued the summary judgment motion differently.

[35]

The
    respondent advances three submissions to address Dr. James claim that he was
    denied procedural fairness. None of them provide a satisfactory response.

[36]

First,
    the respondent submits that a certification judge has discretion in formulating
    the wording of common issues and is not confined to wording proposed by the
    parties. The scope of this discretion, the respondent argues, must be assessed
    in light of the broader purposes of the
Class Proceedings Act
, which
    include promoting access to justice and fostering efficient use of judicial
    resources.

[37]

This
    submission, without more, does not answer whether the appellant was deprived of
    procedural fairness. I agree that a certification judge may, in some
    circumstances, depart from the wording of a common issue that the parties have
    agreed upon and proposed. The requirements of procedural fairness, however,
    impose limits on when and how that discretion may be exercised.

[38]

The
    relevant question, therefore, is not whether the motion judge had discretion to
    reformulate the common issue, but whether that discretion was appropriately
    exercised in this case.

[39]

The
    respondents second submission engages more directly with that central
    question. In the respondents view, the change between Q3 and Q4 was
    insignificant, a distinction without a difference that if anything narrowed the
    issues faced by Dr. James. Any procedural irregularity, therefore, caused Dr.
    James no prejudice. The respondent distinguishes
1250264 Ontario Inc. v.
    Pet Valu Canada Inc
, 2016 ONCA 24, 344 O.A.C. 222, leave to appeal
    refused, [2016] S.C.C.A. No. 105, where the motion judge injected a new theory
    of liability into the recast common issue, causing prejudice to the defendant.

[40]

I
    disagree with this submission, for two reasons.

[41]

First,
    it is instructive that the motion judge did not view his change to the question
    as a distinction without a difference. On the contrary, he clearly understood
    the new wording as capturing permutations of the duty of care issue absent
    from the three previous formulations advanced at the motion hearing. In his
    view, the new wording better captured the distinction between negligent
    performance and negligent design of the IPAC Practice. Whether it actually did
    so, without introducing issues not amenable to resolution on a class-wide basis
    or raising other concerns, was a question the parties ought to have been able
    to address through submissions to the motion judge.

[42]

Second,
    the degree of difference between Q3 and Q4 is not the only consideration
    relevant to assessing procedural fairness. In this case, the following factors
    provide additional support for Dr. James position:

(1)     the
    conduct of the proceedings: Dr. James reasonably expected that the motion judge
    would adhere to Q3 in his reasons for decision;

(2)     the importance
    of the common issue to the resolution of the action as a whole; and

(3)     the
    lack of any steps by the motion judge to address potential prejudice to Dr.
    James.

[43]

It
    is also significant that Dr. James may well have contested certification of the
    class proceeding had he known the certified common issue would be Q4. He was
    therefore deprived of the opportunity to contest not only Q4, but certification
    of a proceeding premised on Q4.

[44]

The
    respondents third objection is that the procedural fairness objection is moot:
    that any unfairness from lack of notice of the common issues was cured by the
    appeal process. On appeal, the argument goes, Dr. James had been made aware
    that Q4 was the common issue. He could therefore argue the appeal from summary
    judgment on that basis, and advance any objections to the wording of Q4 that he
    was unable to provide to the motion judge.

[45]

This
    argument is unsatisfactory. To put it simply, an appeal is not a trial
de
    novo
. The opportunity to argue an appeal with knowledge of the certified common
    issue does not cure the unfairness of arguing a summary judgment motion under a
    misapprehension about the common issue in question. Neither does the ability to
    contest the certified common issue on appeal provide an adequate remedy for the
    lack of opportunity to convince the motion judge against certifying that issue
    at first instance. It is crucial that litigants receive a fair process

when
    they initially argue a certification motion, particularly because a
    certification judges substantive

conclusions are not easily set aside
    on appeal:
Cassano v. The Toronto Dominion Bank
, 2007 ONCA 781, 87
    O.R. (3d) 401, at para. 23.

[46]

Accordingly,
    I conclude that Dr. James was deprived of procedural fairness in the
    proceedings below. He is entitled to a new hearing on certification and on
    summary judgment.

E.

DISPOSITION

[47]

I
    would allow the appeal, set aside the order for summary judgment and the order
    certifying the class action, and order a new hearing of the motion for
    certification and summary judgment before a different judge.

Released: RAB NOV 3 2017

B.W. Miller J.A.

I agree. R.A. Blair
    J.A.

I agree. R.G.
    Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mabe Canada Inc. v. United Floor Ltd., 2017 ONCA
    879

DATE: 20171117

DOCKET: C62576

Cronk, Huscroft and Nordheimer JJ.A.

BETWEEN

Mabe Canada Inc.

Plaintiff (Appellant)

and

United Floor Ltd.

Defendant (Respondent)

Pamela Pengelley and Robert Sottile, for the appellant

Patrick J. Monaghan and Clarence Lui, for the respondent

Heard: November 15, 2017

On appeal from the judgment of Justice Graeme Mew of the Superior
    Court of Justice, dated September 29, 2016, with reasons reported at 2016 ONSC
    1060.

REASONS FOR DECISION

[1]

The appellant sustained damages of approximately
    $1 million when a drainage pipe, running underneath a floor installed by the
    respondent, caused a flood in its warehouse, built by First Gulf Design Build
    Inc. The appellants claim in negligence against the respondent was dismissed
    by the trial judge, who found that although the respondent damaged the drainage
    pipe by puncturing it with a stake it used to brace its concrete forms, the
    respondent nevertheless met the standard of care in carrying out its task.

[2]

The appellant submits that the trial judge
    failed to take into account the respondents contractual duties in determining
    the standard of care; erred in his foreseeability analysis; and erred in
    failing to determine whether relevant industry practice was itself negligent
    and should not have been followed.

[3]

We disagree.

[4]

First, although contractual duties may, in some
    circumstances, modify the standard of care that would otherwise apply, the trial
    judges findings precluded such a finding in this case. Section 28.1 of the contract
    required the respondent to notify First Gulf in writing if in his opinion the subsurface
    conditions at the Place of the Work differ significantly from those indicated
    in the Contract Documents, or a reasonable assumption of probable conditions
    based thereon. The trial judge found that the respondent should have been
    aware that a pipe ran underneath its formwork, but he accepted expert evidence
    that the respondent had no reason to foresee that the pipe would be at a shallow
    depth. As a result, the respondents duty to notify First Gulf under the
    contract did not arise.

[5]

Second, the trial judge did not err in his
    foreseeability analysis. He accepted expert evidence proffered by the
    respondent that there was no reason not to put a stake in the ground at the
    location it did. It was the plumbers responsibility to alert First Gulf to the
    shallow depth of the drainage pipe and First Gulfs responsibility to alert the
    respondent. First Gulf failed to do so.

[6]

The trial judge found that a flooring contractor
    would not expect to have a pipe running through the aggregate in the position
    it was in, some 8 to 10 feet from the rainwater leader that was connected to
    it. He accepted the respondents expert evidence that drainage pipes would
    normally be set 2-3 feet into the subfloor  well below the reach of the
    18-inch stakes used by the respondent, given the concrete slab thickness of 7
    inches and an aggregate layer between 6 and 12 inches thick. The trial judge
    rejected the appellants expert evidence and found that there were no other
    factors that should have alerted the respondent to the possibility of
    puncturing a pipe.

[7]

These findings were open to the trial judge on
    the record before him and they are determinative of this submission.

[8]

Third, although it is clear that conformity with
    standard practice in an industry does not necessarily insulate a defendant from
    a finding of negligence, as the Supreme Court explained in
ter
    Neuzen v. Korn
, [1995] 3 S.C.R. 674, at p. 698, a
    practice will be judged negligent only where the practice does not conform
    with basic care which is easily understood by the ordinary person who has no
    particular expertise in the practices of the profession  only where it is
    fraught with danger.

[9]

The only evidence supporting the submission that
    industry practice was negligent in this case came from the appellants expert. But
    it was rejected by the trial judge, who specifically preferred the evidence of
    the respondents experts in concluding that the respondent had no obligation to
    do more than it did to determine the location of the drainage pipe. There is no
    basis for this court to interfere with the trial judges decision concerning
    the expert evidence and the weight to be attached to it.

[10]

The appeal is dismissed.

[11]

The respondent is entitled to its costs of the
    appeal, fixed in the agreed amount of $35,000, inclusive of taxes and
    disbursements.

E.A. Cronk J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Matusovski v. Tzaferis, 2017 ONCA 881

DATE: 20171120

DOCKET: C63932

Cronk, Huscroft and Nordheimer JJ.A.

BETWEEN

Vladen Matusovski

Plaintiff (Appellant)

and

Alexander B. Tzaferis and Tzaferis & Furtado
    LLP

Defendants (Respondents)

Vladen Matusovski, acting in person

B. Robin Moodie and Bronwyn M. Martin, for the
    respondents

Heard and released orally: November 15, 2017

On appeal from the order of Justice Grant R. Dow of the Superior
    Court of Justice, dated March 13, 2017.

REASONS FOR DECISION

[1]

Mr. Matusovski appeals from the order of Dow J. dated March 13, 2017
    that dismissed his action and ordered him to pay costs fixed at $44,440.24
    together with costs thrown away of $1,142.86.

[2]

This action was a claim in negligence against the defendant lawyers who
    had acted for Mr. Matusovski on a companion action that Mr. Matusovski had
    commenced against an insurance company arising from a motor vehicle accident in
    which Mr. Matusovski was involved. The action against the insurance company was
    earlier dismissed apparently because Mr. Matusovski failed to comply with
    orders that the court had made regarding the payment of costs.

[3]

This action was dismissed for a different reason. It was dismissed
    because Mr. Matusovski twice failed to attend for a defence medical examination
    that he had been ordered to attend. Part of Mr. Matusovskis claim arising out
    of the motor vehicle accident was that he had sustained a brain injury. The
    defence wished to have Mr. Matusovski examined by a neurologist.

[4]

Contrary to Mr. Matusovskis position before this court, not only did
    Mr. Matusovski fail to attend the defence medical twice, the transcript confirms
    that he made it abundantly clear before the motion judge that he had no
    intention of ever attending any such medical examination. Mr. Matusovski is of
    the view that the defence already has sufficient medical information about him.

[5]

It is not up to Mr. Matusovski to unilaterally decide that he will not
    comply with a court order. If Mr. Matusovski did not believe that there was a
    sufficient basis for ordering him to attend a defence medical examination, then
    he ought to have appealed the order that required him to do so. That he did not
    do.

[6]

The motion judge excused Mr. Matusovskis first failure to attend the
    defence medical examination. He gave Mr. Matusovski another chance. However,
    Mr. Matusovski did not avail himself of that second opportunity.

[7]

Given that Mr. Matusovski had made it clear to the motion judge that he
    would not attend any defence medical examination, he left the motion judge with
    no alternative but to dismiss his claim. There is no proper basis for us to
    interfere with that decision. The proposed fresh evidence, even if admitted,
    does not alter our conclusions.

[8]

Mr. Matusovski raises certain other issues in his factum including his
    complaint about a case management judge being appointed and that his other
    action ought not to have been dismissed. However, none of the issues he raises
    is properly before us as part of this appeal and we cannot address them.

[9]

The appeal is dismissed. There will be no order as to costs.

E.A. Cronk J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Parent v. Janandee Management Inc., 2017 ONCA 922

DATE: 20171129

DOCKET: C61888

Trotter, Paciocco and Nordheimer JJ.A.

BETWEEN

Dr. Jocelyne Parent and John Hendrix

Plaintiffs (Respondents)

and

Janandee Management Inc., Downtown Building Group
    Inc., Camrost Felcorp, and The Camrost Corporation

Defendants (Appellants)

and

T.S. Contracting Limited operating business as
    Upright Signs

Defendant (Respondent and Appellant by cross-appeal)

Douglas A. Wallace and Tori C. Wallace, for the
    appellants

Brian Brock and Joanna Reznick, for the respondents

James Schacter and Neil Searles, for the
    respondent/appellant by cross-appeal

Heard:  November 16, 2017

On appeal from the judgment of Justice Grant Dow of the Superior
    Court of Justice sitting with a jury, dated November 7, 2016.

REASONS FOR DECISION

[1]

The defendants, Janandee Management Inc., Downtown Building Group Inc.,
    Camrost Felcorp, and The Camrost Corporation (collectively referred to as
    "Janandee"), appeal from the judgment awarding damages to the
    plaintiffs, entered in accordance with the Jury Verdict.  The defendant T.S.
    Contracting Limited operating as Upright Signs ("Upright Signs")
    cross-appeals from a portion of the costs awards made by the trial judge.

A.

Background facts

[2]

Janandee is a condominium developer that advertised in downtown Toronto
    on weekends with portable, A-frame signs on city sidewalks. Upright Signs was
    contracted by Janandee to install signs at designated intersections.

[3]

On March 23, 2002, the respondents, Dr. Jocelyne Parent and her husband,
    John Hendrix, were walking westbound on the sidewalk located on the south side
    of King Street, near Bay Street, in Toronto. The day was windy, and both Dr.
    Parent and Mr. Hendrix were bent over in the wind, holding each other and their
    hats. Suddenly, Dr. Parent was struck in the face by one of Janandees A-frame
    signs.  The sign measured 48 inches by 32 inches, was made of wood and weighed
    between 35 and 40 pounds.

[4]

The evidence was that the sign lifted about six inches off the ground
    and then struck Dr. Parent.  As a result of the incident, Dr. Parent was knocked
    to the ground, hitting her head on the sidewalk. She sustained a broken nose,
    fractured orbit, and traumatic brain injury.

[5]

Following a fifteen-day trial, a jury found all defendants liable, and
    awarded Dr. Parent $2,900,169.60 in damages, plus interest and costs. The jury
    found that Janandee and Upright Signs were both negligent and apportioned
    liability as follows: Janandee 94% and Upright Signs 6%.

[6]

The trial judge subsequently ordered Janandee and Upright Signs to pay
    costs to the respondents in the amount of $727,290.00 and ordered Janandee to
    pay costs to Upright Signs in the amount of $210,000.00.

B.

The appeal

(1)

Duty of care

[7]

Janandee raises a number of issues in its appeal.  First, it contends
    that the trial judge erred in concluding that Janandee owed a duty of care to
    the plaintiffs.  We did not call on the respondents on that issue.  The
    submission that no duty of care was owed is an untenable one.  In our view, a
    party who places, or arranges to have placed, signs on public sidewalks clearly
    owes a duty of care to members of the public to ensure that those signs are
    placed in a manner that will not cause injury to pedestrians or others who
    might reasonably be affected.  There is a sufficiently close relationship
    between the persons placing signs, and the persons using the sidewalks, such
    that it would be within the reasonable contemplation of the former that
    carelessness on their parts might cause damage to the latter.  Further, there
    are no considerations which ought to negative or limit the scope of the duty or
    the persons to whom it is owed:
Anns v. Merton London Borough Council
,
    [1978] A.C. 728 (U.K.H.L).

[8]

That said, we do express some concern with the manner in which this
    issue was addressed in the charge to the jury.  In his charge, the trial judge
    said:

There are three elements that a plaintiff must prove in a
    negligence action and on a balance of probabilities. They are:

1. There was a duty of care owed to the plaintiffs by one or
    both of the defendants.  This is a question of law for me to decide and I will
    instruct you on that in a moment.

2. That there was a breach of that duty of care in that the
    defendants, one or both, failed to exercise the standard of care required of a
    reasonable and careful person in the same circumstances. This is a question of
    fact for you alone to decide.

3. That the plaintiff suffered damages as a direct result of
    the defendants negligence. This is also a question of fact for you alone to
    decide.

[9]

The trial judge then spent the next two pages of his charge explaining
    why he had concluded that a duty of care was owed by the defendants to the
    plaintiffs.  In our view, there was no need for this explanation.

[10]

Providing an explanation as to why a duty of care has been found, runs
    the risk that the explanation may unintentionally influence the jurys
    consideration of the two issues that they have to decide, that is, whether a
    defendant was negligent and the apportionment of fault as between two or more negligent
    defendants.  In other words, the jury may take the trial judges explanation as
    to why a duty of care has been found as indicating, or telegraphing, his/her
    view on the defendants liability. Indeed, in this case several of the comments
    impugned by Janandee are found in comments the trial judge made about whether a
    duty of care applied. While we do not believe these comments misled or
    influenced the jury in this case, it is a risk that ought not to be run.

[11]

What the trial judge ought to have done, after setting out the three
    elements, was simply advise the jury that he had concluded, as a matter of law,
    that a duty of care was owed by the defendants to the plaintiffs and thus the
    jury did not have to concern itself with that issue.  He should have then
    proceeded to the second element, whether there was a breach of the duty,
    without further commentary.  We would note that this appears to be the approach
    suggested in the sample civil jury instructions published by the Continuing
    Legal Education Society of British Columbia (Continuing Legal Education Society
    of British Columbia, February 2017, Civil Jury Instructions, at §5.01.3).

(2)

The apportionment of liability

[12]

The next issue raised by Janandee, and which appears to be the central
    one in this appeal, is whether the trial judge properly instructed the jury on
    the principles of apportionment of liability.

[13]

The difficulty revolves around references to causation, both directly in
    the questions given to the jury, and indirectly in the charge to the jury as it
    related to apportionment.  Janandee submits that the trial judge confused the
    issue of causation, which is relevant to the breach of the duty of care, with
    the issue of fault that is relevant to the apportionment exercise.  Janandee says
    that this error may explain why the jury arrived at the somewhat unusual split
    of 94/6.  Janandee says that this error is sufficiently serious that this court
    should intervene by setting aside the jurys verdict and reapportioning the
    liability 75% to Upright Signs and 25% to Janandee.

[14]

Janandee correctly points out that the
Negligence Act
, R.S.O.
    1990, c. N.1 provides, in s. 1, that where damages are caused or contributed by
    two or more persons the court shall determine the degree in which each of such
    persons is at fault or negligent.  Fault is different than causation.  In
    commenting on s. 1 of the
Negligence Act
in
Rizzi v. Mavros
,
    2008 ONCA 172, Lang J.A. said, at para. 48:

A plain reading of this provision requires apportionment based
    on the "fault or negligence" of each party, rather than on the basis
    of causation. It would be in error to apportion liability on the degree to
    which the appellant or the respondents caused the damages.

[15]

The notion of fault involves a consideration of the blameworthiness of
    the actions of each of the defendants who have contributed to the damages
    suffered.  As Professor Klar says in his text (L. N. Klar,
Tort Law
, 5th
    ed, (Toronto: Carswell, 2012)), at p. 582:

[A]ssessing degrees of fault or the extent of a persons
    responsibility must relate to the relative culpability or blameworthiness of
    the parties. The apportionment decision depends upon which of the defendants
    failed most markedly to live up to the standards of conduct expected.

[16]

We agree with Janandee that there are aspects of the jury charge that
    could have been clearer regarding the basis upon which liability was to be
    apportioned, but we do not agree that these issues would have confused the jury
    with respect to the appropriate analysis.

[17]

The questions put to the jury for their answers on liability were in the
    following order:  questions #1 and 3 dealt with the issue of breach of the duty
    of care for each of the defendants, questions #2 and #4 were the questions on
    particulars of the negligence for each of the defendants, question #5 dealt
    with apportionment; question #6 dealt with damages, and question #7 dealt with
Family
    Law Act
,
R.S.O. 1990, c. F.3 damages.  The questions asked of the
    jury in relation to the breach by each of the defendants were in the same
    essential terms.  In respect of Janandee, the question was:

Was there any negligence on the part of the Defendants Janandee
    Management Inc., Downtown Building Group Inc., Camrost Felcorp, or The Camrost
    Corporation (the Janandee Group of Defendants) which caused or contributed to
    the injuries of the Plaintiff, Jocelyne Parent as a result of the sign incident
    of March 23, 2002?

[18]

This question, which tracks the language set out in s. 1 of the
Negligence
    Act
, deals with the issue of whether there had been a breach of the duty
    of care, and properly asks for an answer to that question based on causation.
    The reference to caused or contributed is proper because it focusses the negligence
    inquiry on the act or omission that caused the injury.

[19]

The potential difficulty arises when one gets to question #5, the
    apportionment question.  It refers back to the negligence questions (i.e.,
    questions #1 and #3) and then simply asks for the percentage split.
    Specifically, question #5 was:

Only if the answers to questions 1 and 3 are both yes, how do
    you apportion the respective degrees of fault?

Two blanks were left beside the two defendants for a
    percentage to be inserted, with the total already marked as having to add to
    100%.

[20]

In his charge to the jury, the trial judge said:

If your answer to Questions 1 and 3 is yes, then you must
    answer Question 5 which requires you to apportion the respective degree of
    fault. You will note the question is already filled in in the total of 100. The
    apportionment must total 100 percent. There can be any two numbers that total
    100. For example, the apportionment can be that 75/25 in either party's favour;
    68/32; 50/50; 100/0.

[21]

The trial judge made another reference to degrees of fault in the next
    paragraph of his charge.

[22]

Unfortunately, the trial judge did not draw the jurys attention (at any
    point in his charge) to the fact that determining the degrees of fault is a different
    exercise than determining causation.  It would have been better if the trial
    judge had explained to the jury that, when they came to the apportionment
    question, they must consider fault, in the sense of blameworthiness, and not
    causation.  It might also have been helpful at that point to draw to the jurys
    attention the evidence that related to that determination.

[23]

Janandee says that the above problem with the jury charge was magnified
    by the events surrounding the subsequent question asked by the jury.  During
    their deliberations, the jury sent the judge a question.  It read:

For Question 5 if we found Question 1 and 3 to be yes, can we
    still have a diversity split of 100 percent versus zero percent?

[24]

In responding to the jurys question, the trial judge said:

I did state as an example of apportionment 100/0 and that was
    in error. If you find a specific negligent act or failure to act on the part of
    the defendant that caused or contributed to the incident of March 23 2002 it
    must attract a percentage of liability even if only one percent or even less.

Janandee says that the language of caused or
    contributed exemplifies the trial judges failure to instruct the jury on the
    proper basis for making the apportionment.

[25]

We accept that the language used by the trial judge was not the best.
    Still, in our view, the answer to the jurys question did not invite the jury
    to apportion based on degrees of causation. The jury was directed to consider
    specific negligence on the part of the defendants. The reference to it refers
    to the subject of the sentence, the specific negligent act. Again, the
    reference to negligence that caused or contributed to the incident is
    included to identify the negligence that the jury should consider in making
    their apportionment.

[26]

Any room for confusion caused by including causation references in the
    apportionment discussion is not of such a magnitude as to warrant our
    intervention in the result. We say that for a number of reasons:

(i)

As pointed out above, the issue of fault was mentioned more than once by
    the trial judge when it came to the apportionment portion of his charge.  It is
    also expressly mentioned in the apportionment question itself.

(ii)

The answer to the jurys question was canvassed by the trial judge with
    all counsel and no one objected to the proposed answer on the grounds now
    raised by Janandee.

(iii)

No counsel raised any objection to the contents of the trial judges
    original charge on this issue.  The failure of counsel to object (experienced
    trial counsel in this case) is properly taken into account in determining
    whether there was any "material misdirection or non-direction" by the
    trial judge that warrants appellate intervention:
Marcoccia (Litigation
    guardian of) v. Ford Credit Canada Ltd.,
2009 ONCA 317, 248 O.A.C. 131, at
    para. 26.

(iv)

The jurys question shows that the jury knew it was apportioning based
    on its answers to question 1 and 3, relating to the specifics of negligence,
    and not on a causation basis.

(v)

A high degree of deference is given by courts to jury verdicts.  A civil
    jury's verdict should be set aside only where it is so plainly unreasonable and
    unjust that no jury reviewing the evidence as a whole and acting judicially
    could have arrived at the verdict:
Stilwell v. World Kitchen Inc.
, 2014
    ONCA 770, 327 O.A.C. 146, at para. 33.

The mere fact that the apportionment made by the jury
    might be seen as an unusual one is not, without more, a sufficient basis to
    justify interfering with it.

(3)

Foreseeability

[27]

The final issue raised by Janandee is that the trial judge erroneously
    instructed the jury on the issue of foreseeability.  Janandee says that this
    error manifested itself in the trial judge referring to the position of the
    appellant as the incident amounting to an Act of God.

[28]

The trial judge provided counsel with his charge in advance.  Time was
    spent reviewing the draft charge with counsel and obtaining their input.  Counsel
    for Janandee did raise an issue with the trial judges instructions on
    foreseeability but not on the point that Janandee now raises.  In particular, Janandees
    trial counsel objected to the trial judges reference to foreseeability of the
    possibility of harm.  As a result of those objections, the trial judge
    amended his instructions to refer to the probable likelihood of harm.

[29]

Nevertheless, characterizing Janandees position as amounting to an Act
    of God defence probably ought not to have been said.  However, again, counsel
    did not object at the time.  In any event, the particulars of the negligence
    provided by the jury, fairly read in relation to Janandee, do not support any
    conclusion that this reference materially impacted on the jurys conclusions.

[30]

The appeal is dismissed.

C.

The cross-appeal

[31]

We did not call on the appellant to respond to the cross-appeal
    regarding the trial judges costs awards.  Because of an offer to settle made by
    the plaintiffs, and an offer to contribute that had been made by Upright Signs,
    the trial judge was required to consider different costs issues, including the
    proper scale of costs payable to the plaintiffs, the degree of contribution
    among the defendants to those costs, and the liability of Janandee to Upright Signs
    for its costs subsequent to its offer to contribute.  The trial judge resolved
    all of those issues in the subsequent reasons that he gave.

[32]

While we accept that there may be a measure of inconsistency between the
    specific individual awards that the trial judge decided on, they are all
    matters within the discretion of the trial judge.  The suggested errors do not
    rise to the level of seriousness that is required to satisfy the rare instance
    where leave to appeal a costs award will be granted:
Inter-trust Mortgage
    Investment Corp. v. 1071005 Ontario Ltd
.,
[1999] O.J. No. 1875
    (C.A.) at para. 12.  Further, viewed in the context of the overall costs awards,
    and the ultimate apportionment of liability by the jury, the costs awarded
    against Upright Signs was fair.

[33]

Leave to cross-appeal the award of costs at trial is denied.

D.

Costs

[34]

Janandee will pay to Upright Signs the costs of the appeal in the agreed
    amount of $15,000 (inclusive of disbursements) plus HST.  Upright Signs will
    pay to the appellants the costs of the cross-appeal in the agreed amount of $3,500
    (inclusive of disbursements) plus HST.  Janandee will pay to the respondents
    the costs of the appeal which we fix in the amount of $25,000 inclusive of
    disbursements and HST.

G.T. Trotter J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Arsenault, 2017 ONCA 884

DATE: 20171120

DOCKET: C62364

Rouleau, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kassandra Arsenault

Applicant/Appellant

Jessica Zita, for the applicant/appellant

Kathleen Healey, for the respondent

Heard: November 17, 2017

On leave to appeal and appeal from the sentence imposed
    on March 9, 2016 by Justice D. Austin of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of possession of methamphetamine for the
    purpose of trafficking.  She was sentenced before the Supreme Courts decision
    in
R. v. Lloyd
, 2016 SCC 13 in which the mandatory one year sentence
    for s. 5(2) of the CDSA was struck as being unconstitutional.  The appellants
    case was still in the system when the decision in
Lloyd
was rendered.

[2]

The sentencing judge expressed regret that she was required to impose a
    sentence based on the one year minimum but nonetheless imposed a 12 month
    custodial sentence plus 10 months probation.

[3]

The Crown consents to allowing the appeal and remitting the case to
    Austin J. for a new sentencing hearing.  We agree.

[4]

Leave to appeal sentence is granted, the sentence appeal is allowed and
    the case is sent back to Austin J. for the appellant to be resentenced.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Barnett, 2017 ONCA 897

DATE: 20171123

DOCKET: C62684

Doherty, LaForme, Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Antonio Barnett

Respondent

Davin Michael Garg for the appellant, Her Majesty the
    Queen

Mark C. Halfyard and Breana Vandebeek for the
    respondent, Antonio Barnett

Heard: August 17, 2017

On appeal from the sentence imposed on August 23, 2016 by
    Justice Michael Brown of the Superior Court of Justice.

Doherty and Rouleau JJ.A.:

A.

Overview

[1]

Antonio Barnett, the respondent, was arrested for robbery and related
    charges. While on bail prior to trial, he committed other offences for which he
    was detained in custody. At sentencing for the robbery charges, the judge gave
    the respondent credit for some of the pre-sentence custody accumulated
    following this detention.

[2]

The Crown seeks leave to appeal sentence, arguing that the sentencing
    judge erred in crediting the appellant with pre-sentence custody incurred following
    his detention for a later, unrelated offence. In the Crowns submission,
    neither ss. 719(3) and (3.1) nor s. 726.1 of the
Criminal Code
allow
    credit for pre-sentence custody on the robbery charge. It argued that credit
    for pre-sentence custody accumulated as a result of later charges cannot be
    used to reduce a sentence on an earlier set of charges for which bail was
    granted.

[3]

The fact pattern presented in this case is not uncommon. Accused persons
    who are in custody are often facing more than one set of charges. Different
    sets of charges will often be disposed of at different times by different trial
    judges. It is important that sentencing judges understand the extent to which
    the accuseds pre-sentence custody can be taken into account when imposing
    sentence in respect of one or the other of the sets of charges faced by the
    accused.

[4]

This court has considered sentence appeals arising out of the same or
    very similar circumstances as are presented in this case. The arguments on this
    appeal suggest that the prior decisions of the court have left some uncertainty
    as to when and how a trial judge may take into account a period of pre-sentence
    incarceration, and the interplay between ss. 719(3), (3.1), and 726.1. Because
    the situation arises with such regularity and impacts so directly on the
    liberty of the subject, we think it important that we clarify the manner in
    which trial judges can have regard to pre-sentence incarceration.

[5]

In these reasons, we will address the proper interpretation of ss.
    719(3), (3.1), and 726.1. As we will explain, ss. 719(3) and (3.1) were properly
    engaged in the circumstances of this case. The respondents pre-sentence
    custody was properly regarded as a result of both his robbery charge, and the
    later charges. We would therefore dismiss the appeal.

B.

Facts

[6]

On June 18, 2013, Mr. Barnett was arrested for robbery and assault
    (the first offences). He was released on bail the next day.

[7]

While on bail, Mr. Barnett committed the offence of procuring a
    person to provide sexual services (the second offence). He was arrested for
    that offence on October 10, 2014. He was denied bail for this second offence.
    Bail on the first offences was never revoked.

[8]

While in custody for this second offence, the respondent committed
    perjury (the third offence). He was arrested for this offence on December 3,
    2014, while in custody. He did not seek bail.

[9]

On April 27, 2016, after trial on the first offences, Mr. Barnett
    and his co-accused were convicted as joint principals of robbery and assault
    causing bodily harm.

[10]

Before
    his sentencing for these offences, Mr. Barnett pleaded guilty to the
    second offence on August 2, 2016. For that offence, he was sentenced to one day
    in jail in addition to 240 days of pre-sentence custody, credited at 360 days.

[11]

Three
    weeks later, on August 23, 2016, Mr. Barnett was sentenced for the first offences.
    At the sentencing hearing the parties agreed that, as of August 2, 2016, Mr. Barnett
    had accumulated 664 days of pre-sentence custody. After deducting the 240 days
    accounted for in the sentencing on the second offence, Mr. Barnett was
    left with 424 days of pre-sentence custody. The sentencing judge therefore sentenced
    him to one day in jail in addition to the 424 days of pre-sentence custody,
    credited at 629 days, for a total sentence of 630 days. This sentence is the subject
    of the present appeal.

[12]

Mr. Barnett
    later pleaded guilty to the third offence, perjury. For that offence, he was
    sentenced on January 4, 2017, to four and a half months in jail in addition to five
    months of pre-sentence custody (August 2, 2016  January 4, 2017), credited at seven
    and a half months.

C.

Decision below

[13]

At
    the sentencing for the first offences, the Crown argued that none of the time spent
    in custody following Mr. Barnetts arrest and denial of bail on the second
    offence was available to be credited against a sentence for the first offences.
    This was because Mr. Barnett had been awarded bail on the first offences
    and still faced outstanding charges for the third offence, perjury, for which he
    was also in custody.

[14]

The sentencing judge disagreed. The fact that the perjury
    charge was outstanding was irrelevant in his view. Relying on
R. v. Reid
,

[2005] O.J. No. 1790 (C.A.),
R.
    v. Tsai
(2005),
198 C.C.C.
    (3d) 533 (C.A.),

and
R. v. K.G.
,
2012 ONSC 3523, 101 W.C.B. (2d) 576, he concluded that the
    remaining 424 days of pre‑sentence custody could and should be credited
    to Mr. Barnett. The sentencing judge explained that Mr. Barnetts
    pre-sentence custody was relevant information that could be taken into account
    pursuant to s. 726.1. He found that Mr. Barnett was entitled to
    credit of 424 days of pre-sentence custody on an enhanced basis equivalent to 629
    days, at a rate of slightly less than 1.5:1.

D.

Issue

[15]

The
    sole issue on this appeal is whether the sentencing judge erred by granting
    credit for pre-sentence custody served following Mr. Barnetts arrest and
    denial of bail on the second offence.

E.

arguments

[16]

On
    appeal, the Crown argues that the trial judges reliance on s. 726.1 as
    the basis for crediting Mr. Barnett with the equivalent of 629 days of
    custody was an error. Relying on s. 726.1 circumvents ss. 719(3) and (3.1),
    while distorting the sentencing regime. In the circumstances of this case, granting
    credit for pre‑sentence custody served as a result of later unrelated
    charges amounted to allowing an accused to bank time contrary to
R. v.
    Wilson
, 2008 ONCA 510, 240 O.A.C. 59.

[17]

The
    Crown explains that the sentencing judges use of Mr. Barnetts pre‑sentence
    custody to reduce his sentence for the offences was not and could not be
    justified by ss. 719(3) and (3.1). Those sections provide that in order to
    be used in fashioning a sentence, time spent in custody must have been as a
    result of the offence for which the offender is being sentenced.

[18]

In
    the Crowns submission, all but two days of the pre-sentence custody at issue was
    as a result of the arrest and denial of bail on the second offence. Those two
    days were spent in custody on the first offences before Mr. Barnett was granted
    bail. The balance of the pre-sentence custody followed his arrest on the second
    offence and could only be used in fashioning the sentence for the second
    offence.

[19]

The
    Crown argues that it would be an error and improper to give credit for
    pre-sentence custody in sentencing on the first offences under s. 726.1
    when ss. 719(3) and (3.1) do not allow it.

[20]

In
    the result, the Crown submits that the sentence should be varied to 627 days of
    incarceration after giving a three day credit for the two days of pre-sentence
    custody to achieve the 630 day sentence. The Crown acknowledges that, had this
    sentence been imposed at the time, Mr. Barnett would have had 422 days of pre‑sentence
    custody remaining. This time would have been available to be applied as credit
    against the sentence imposed for the third offence, reducing it from 135 days
    to 0. It follows therefore that this court should order Mr. Barnetts
    re-incarceration for 492 days, i.e. the 627 day sentence less the 135 day
    sentence for the third offence that would not have been imposed but has already
    been served
[1]
.

F.

analysis

[21]

Sections
    719(3), (3.1), and 726.1 of the
Criminal Code
read as follows:

719(3)  In determining the sentence to be imposed on a person
    convicted of an offence, a court may take into account any time spent in
    custody by the person as a result of the offence but the court shall limit any
    credit for that time to a maximum of one day for each day spent in custody.

719(3.1)  Despite subsection (3), if the circumstances justify
    it, the maximum is one and one-half days for each day spent in custody unless
    the reason for detaining the person in custody was stated in the record under subsection
    515(9.1) or the person was detained in custody under subsection 524(4) or (8).

726.1  In determining the sentence, a court shall consider any
    relevant information placed before it, including any representations or
    submissions made by or on behalf of the prosecutor or the offender.

[22]

Before
    examining each provision, we will address the Crowns argument that the trial
    judge relied only on s. 726.1. We read the trial judges reasons as reflecting
    reliance on both ss. 726.1, and 719(3) and (3.1). He used both sections to
    support his conclusion that 424 days of Mr. Barnetts pre-sentence custody for
    the second offence could be applied in reduction of his sentence for the first
    offences. We reach that conclusion for two reasons.

[23]

First,
    the sentencing judge specifically referenced three cases in support of his
    decision. All three can be read as supporting the judges reliance on both s. 726.1
    and on ss. 719(3) and (3.1).
K.G
. involved the sentencing of an
    offender in circumstances somewhat analogous to those of the present case. The
    judge in that case determined that although the pre-sentence custody followed
    the offenders detention on a later set of charges, it was nonetheless
    available to be applied in reduction of the sentence for the earlier offence
    for which the offender was being sentenced. The judge found that the authority
    for this was found in both ss. 726.1 and 719(3):
K.G.
,
at para. 44.

[24]

The
    other cases the sentencing judge referred to were
Reid
and
Tsai
.
    In those cases, the court only referred to s. 726.1 as a basis for
    allowing credit to an offender for pre-sentence custody served following a
    later set of charges. At para. 50 of
Wilson
, this court explained
    that in those cases the time spent in pre-sentence custody could be attributed
    to the first set of offences. In other words, in both those cases, ss. 719(3)
    and (3.1) were an alternate basis available for allowing credit.

[25]

Second,
    the sentencing judge found that Mr. Barnett was entitled to credit for 424
    days in pre-trial custody. In other words, the pre-trial custody was more than
    a consideration under s. 726.1; it was credit that could be applied on a 1.5:1
    basis. This is the language and amount normally associated with ss. 719(3)
    and (3.1).

[26]

We
    turn now to the interpretation of ss. 719(3) and (3.1). The Crown maintains
    that these sections strictly limit a sentencing judges ability to take
    pre-sentence custody into account. Only pre-sentence custody served as a
    result of the offence or offences for which the offender is being sentenced
    can be applied as credit. In the Crowns submission, virtually all of Mr. Barnetts
    pre-sentence custody did not qualify as pre-sentence custody served as a
    result of the first offences because it was served following his arrest for
    the second offence.

[27]

We
    disagree. We do not read ss. 719(3) and (3.1) as limiting consideration of
    pre-sentence custody only with respect to the offence that was the immediate
    trigger of the detention. Rather, the court is to assess whether a sufficient link
    exists between the pre-sentence detention for which credit is sought and the offence
    or offences for which the offender is being sentenced so as to meet the as a
    result requirement of s. 719(3). Even where, as here, the detention
    followed a later charge, the circumstances may be such that this later
    detention can nonetheless be considered to be as a result of both the earlier
    and the triggering offences.

[28]

It
    would be artificial to restrict a sentencing judges ability to apply pre‑sentence
    custody to only those charges that are the immediate trigger of the detention. Judges
    are regularly called upon to sentence offenders who are facing different sets
    of charges and who obtained bail on the initial set of charges, but were
    remanded in custody on the later charges. In such cases, legitimate questions
    will arise as to whether the pre-sentence custody can be said to be as a
    result of each of the various charges the offender is facing. In many cases,
    common sense will dictate that the offender did not apply for, or was denied,
    bail on the second set of charges at least in part because of the totality of
    the charges outstanding, or because he had been on bail on the prior charges. In
    those circumstances, it does not stretch the language of s. 719(3) to describe
    the pre-sentence custody as being a result of both sets of charges.

[29]

The
    expression as a result of used in s. 719(3) has been given various interpretations.
    In
R. v. Wust
, 2000 SCC 18, [2000] S.C.J. No. 19, at para. 3, the
    Supreme Court of Canada referred to it as meaning in relation to an offence.
    In
R. v.

Mills
,
    1999 BCCA 159, [1999] B.C.J. No. 566, at para. 33, the British Columbia Court
    of Appeal considered whether the time spent in pre-sentence custody was on
    account of the offence.  In
R. v. MacDonald
, [1998] O.J. No. 2990
    (C.A.), at para. 65, this court viewed it as encompassing pre-sentence custody
    that was for the [...] offence: see also
R. v. Wilson
, 2010 BCCA 65,
    [2010] B.C.J. No. 231.  Finally, in
R. v. Thomas
, 2010 ONCA 662, 90
    W.C.B. (2d) 697, at para. 9, this court referred to the need to show a
    proven link between [the detention] and the charges.

[30]

What
    we draw from the case law is that ss. 719(3) and (3.1) require that there
    be some causal connection, a sufficient link or relation between the offence
    for which the offender is being sentenced and the pre-sentence custody. That
    relation or link can exist with more than one offence. It is not limited to the
    offence that directly triggered the detention, but will include offences that
    contributed to the denial of bail or, in the trial judges assessment, factored
    into the offenders decision to not seek bail on the charges that triggered the
    detention order.

[31]

There
    is no strict rule dictating what constitutes a sufficient link or relationship
    between the given charge and the pre-sentence custody so as to meet the as a
    result of standard. The sentencing judge will take into account relevant
    factors that might include the reasons for bail having been granted on the
    first set of offences and denied for the second set of offences; whether bail
    was sought on the later offences; whether there has been revocation of the bail
    on the first set of offences; the impact if any of the reverse onus provisions
    of ss. 515(6) or 522(2) of the
Criminal Code
; whether subsequent
    charges remain outstanding, have been withdrawn or stayed; the amount of
    pre-sentence custody accumulated; the nature and seriousness of the various
    charges; and the relationship, if any, that charges have to one another. In
    sum, the sentencing judge must be satisfied that the offences upon which he is
    sentencing the accused have some meaningful causative connection to the
    accuseds pre-sentence custody.

[32]

The
    inquiry into the connection between the charge on which an accused is being
    sentenced and the reasons for pre-sentence custody should not become
    complicated and unnecessarily adversarial. The Crown should acknowledge the
    connection if that connection is clear on a fair assessment of the situation. Defence
    counsel should also be allowed to advise the court of relevant matters such as
    the reasons bail was not sought in respect of subsequent charges. In some
    cases, the defence will have to call evidence to establish the necessary
    connection. A transcript of the reasons for detention may serve that purpose in
    some cases. Ultimately, where the connection between the custody and the charge
    on which the accused is being sentenced cannot be readily inferred from the
    circumstances, the onus will be on the accused to show that the connection
    exists and that s. 719(3) applies:
R. v. Perkins
, 2017 ONCA 152, at
    para. 32.

[33]

We
    do not agree with the Crown that our approach to ss. 719(3) and (3.1) is
    contrary to the majority opinion in
Wilson
,
in that it permits an accused to bank time spent in
    custody. In
Wilson
, the court was dealing with a situation in which the
    appellant sought credit for time he spent serving a sentence imposed on an
    unrelated conviction. The appellant had successfully appealed the conviction on
    that unrelated offence. He asked this court to reduce the sentence under appeal
    by treating the sentence served as a result of the wrongful conviction as being
    equivalent to pre-sentence custody. This court rejected the appeal on the basis
    that it would amount to allowing banking of time spent in custody. This court
    was not dealing with pre-sentence custody, but rather with time served following
    a totally unrelated conviction.

[34]

The
    interpretation of ss. 719(3) and (3.1) we propose better reflects that
    dead time is real time, as Arbour J. explained with reference to
    pre-sentence custody in
Wust
,

at para. 45. In other words,
    pre-sentence custody is jail and is to be perceived as such for sentencing
    purposes.

[35]

If
    the Crowns interpretation of ss. 719(3) and (3.1) is applied to this case,
    Mr. Barnett will have to be re-incarcerated for an additional 491 days.
    This despite his having served almost a year of pre-sentence custody while
    awaiting his trial on the first offences (and the second and third offences)
    and for which he will receive no credit
[2]
.

[36]

The
    Crowns position also produces results that seem arbitrary. On the Crowns
    analysis, the order in which Mr. Barnett committed his offences had a
    significant impact on the total amount of time he must spend in jail as a
    result of the offences. Had he committed the more serious charge (robbery)
    after he had been released on bail on the less serious charge (procuring), ss.
    719(3) and (3.1) would have been available to significantly reduce Mr.
    Barnetts sentence on the robbery charge. It is not apparent to us why the
    order in which the offences occurred should have such a potent impact on the
    total time he spends in custody on the charges.

[37]

This
    is not to say that all of an offenders time spent in custody must be available
    as credit for any given conviction. There will be cases when an offender has
    spent time in jail in excess of what should have been the case if the system
    had worked expeditiously and flawlessly and that time will not be available as
    a credit:
Wilson
at para. 43. This can occur, for example, where a
    conviction is set aside as in
Wilson
, where time is spent in pre-sentence
    custody but there is no conviction, or where the sentence imposed following
    conviction is less than the accumulated pre-sentence custody.

[38]

However,
    an interpretation of ss. 719(3) and (3.1) that reduces the likelihood of
    detention that ultimately proves to be unwarranted is to be favoured. As
    Iacobucci J. wrote in
R. v. Hall
, 2002 SCC 64, [2002] S.C.J. No. 65, at
    para. 47:

Liberty lost is never regained and can never be fully
    compensated for; therefore, where the potential exists for the loss of freedom
    for even a day, we, as a free and democratic society, must place the highest
    emphasis on ensuring that our system of justice minimizes the chances of an
    unwarranted denial of liberty.

[39]

The
    narrow interpretation of ss. 719(3) and (3.1) advanced by the Crown would,
    as in this case, lead to a significant increase in the situations in which an
    accused would not receive credit for time spent in custody prior to sentencing.
    In our view, that interpretation undermines the fairness of the sentencing
    process and does not advance any of the principles of sentencing.

[40]

We
    turn now to s. 726.1. The section is a statutory statement of the self‑evident
     the court should consider any relevant information in determining the fit
    sentence. An accuseds pre-sentence incarceration may be relevant
    information.

[41]

For
    example, assume an accused young offender is being sentenced. She has spent six
    months in custody prior to sentencing, but that custody is not as a result of
    the offences on which she is being sentenced. The trial judge hears evidence
    that the time spent in custody has caused a very real change in the accuseds
    attitude. She now understands the consequences of her actions and is determined
    to straighten herself out. The trial judge may determine that specific
    deterrence is the key principle of sentence in this particular case. In deciding
    whether specific deterrence requires further incarceration and, if so, how long
    the sentence should be, the trial judge is entitled to take the six months pre-sentence
    incarceration and its impact on the accused into account as a factor relevant to
    a determination of the proper sentence.

[42]

Section
    726.1 operates differently than ss. 719(3) and (3.1).  Section 726.1 may make
    pre-sentence incarceration a factor to be considered, along with other relevant
    factors, in determining the appropriate sentence. Sections 719(3) and (3.1) do
    not speak to the factors relevant to determining a fit sentence, but rather
    instruct as to the manner in which pre-sentence custody should be counted to
    mitigate what has been determined to be the appropriate sentence. As the two
    provisions operate very differently, trial judges should be careful to
    distinguish between the two when considering the impact of pre-sentence custody
    on the determination of the sentence to be imposed.

Application to this case

[43]

Based
    on the facts of this case, the sentencing judge properly viewed the detention as
    meeting the as a result of requirement of s. 719(3). The record discloses
    that bail on the second set of charges was sought but was refused, at least in
    part, due to Mr. Barnetts inability to provide an adequate surety. During oral
    argument before this court, the Crown conceded that the first set of offences
    had some link to the decision of the justice of the peace not to grant bail on
    the second offence. This refusal combined with other factors such as the significant
    length of the pre-sentence custody and the fact that the first offences related
    to the robbery were the most serious made it reasonable for the sentencing
    judge to view the inability to obtain bail on the second offence as being
    linked to or resulting at least in part from the first set of offences.

[44]

Further,
    contrary to the Crowns submissions, we do not consider that the sentencing
    judge is barred from applying pre-sentence custody to the first set of offences
    because Mr. Barnett did not seek to have his bail on those offences revoked.
    It would be a waste of court resources to require an offender to bring such an
    application. This is especially true in a case such as this, where bail was
    applied for and refused on the second set of charges. This is not to suggest
    that the Crown cannot, if so advised, seek such revocation particularly if it
    wants to trigger the operation of s. 719(3.1)
[3]
.

[45]

For
    similar reasons, an offenders failure to seek bail on the second set of charges
    does not necessarily bar the application of pre-sentence custody to the
    sentence for the first set of charges:
R. c. D. N.
, 2010 ONCA 168, 253
    C.C.C. (3d) 455. It is only one factor in the judges assessment of the as a
    result of requirement. Refusal of bail may well be inevitable in the
    circumstances of a given case. Requiring a fruitless application would only
    result in delay and a waste of resources.

[46]

A
    sentencing judges sentence is entitled to deference and, in our view, there is
    no basis to interfere with his decision to apply pre-sentence custody as he did
    in this case. It was open to him to do so based on a correct reading of ss. 719(3)
    and (3.1).

G.

Conclusion

[47]

On
    a final note, it is important that sentencing judges clearly record the amount
    of the pre-sentence custody applied in fashioning the sentence as the judge did
    in this case. This is to ensure that the court called upon to sentence the
    offender on later charges does not take the same pre-sentence custody into
    account a second time.

[48]

As
    a result, we would grant leave to appeal sentence but dismiss the sentence
    appeal.

Released: DD  NOV 23 2017

Doherty
    J.A.

Paul
    Rouleau J.A.

I
    agree H.S. LaForme J.A.

[1]
The Crowns calculation fails to account for the one day Mr. Barnett spent
    incarcerated pursuant to the sentence under appeal. Thus, if this court was to
    make an order for re-incarceration, it should be for 491 days.

[2]
The Crown maintains that although the 424 days of pre-trial custody were not
    available for credit on the first offences, 135 days could be used to reduce
    the sentence that he in fact served for the third offence. This would only
    result in a net loss of pre-sentence custody credit equal to 289 days (424-135).
    A more realistic calculation is that 90 days of pre-sentence custody would have
    been credited at 1.5:1 and would be sufficient to have eliminated the remaining
    135 days of the sentence he served on the third offence. This would result in Mr.
    Barnett having lost any benefit for pre-sentence custody equal to 334 days
    (424-90) which, at 1.5:1 equals 501 days.

[3]
The constitutionality of this statutory provision is at issue in appeals
    pending in this court:
R. v.

Hussain
(C62047) and
R. v.

Meads
(C63093).


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Boghossian, 2017 ONCA 870

DATE: 20171114

DOCKET: C61549

Strathy C.J.O., Doherty J.A. and McCombs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Remy Boghossian

Appellant

Erin Dann, for the appellant

David Friesen, for the respondent

Heard and released orally:  November 8, 2017

On appeal from the convictions entered on September 8,
    2015 by Justice A.J. OMarra of the Superior Court of Justice, and from the
    sentence imposed on March 29, 2016, with reasons reported at 2015 ONSC 4851.

REASONS FOR DECISION

[1]

The appellant, who is a lawyer, was convicted of a fraud in the amount
    of about $1.9 million.  He was sentenced to three and one-half years in the
    penitentiary.  He appealed both conviction and sentence.

The Conviction Appeal

[2]

It was common ground that the bank was defrauded.  From the appellants
    perspective, there was one factual issue in dispute  did the appellant know
    that his client Ali did not exist, or was the appellant duped by his
    co-accused as he testified in his evidence?  If the appellant knew Ali did not
    exist, there could be no doubt that the appellant was a party to the fraud.

[3]

After a summary of the evidence, the trial judge outlined the applicable
    legal principles at paras. 135-38.  He said, at para. 138:

In my view, there is a strong circumstantial case as outlined
    above from which reasonable inferences can be drawn that all three of the accused
    acted together to knowingly defraud the RBC by the presentation of a fraudulent
    TD bank draft in the amount of $1,895,751 to acquire gold.  However, are there
    other rational conclusions, or explanations from the evidence that raise a
    reasonable doubt?  The question is whether or not I am satisfied beyond a
    reasonable doubt as to their individual guilt considering all of the evidence
    through the assessment paradigm as set out in
R. v. W. (D.)
, [1991] 1
    S.C.R. 742.

1. If I believe
    the evidence of the accused or the evidence the accused relies on in support of
    his defence, I must acquit.

2. Even if I do
    not believe the accuseds evidence or evidence relied on in support of his
    defence, but I am left in a state of reasonable doubt or uncertainty, I must
    acquit.

3. Even if I am
    not left in doubt by the evidence of the accused or evidence relied on in
    support of his defence, I must consider whether I am convinced beyond a
    reasonable doubt of the accuseds guilt based on the balance of the evidence I
    do accept.

[4]

From paras. 138 to 170, the trial judge proceeded to a detailed review
    of the evidence, including the appellants evidence, organized by reference to
    the key events or key documents referred to in the evidence.  The trial judge
    made several findings of fact, all directed at whether the appellant knew that
    Ali did not exist.  He provided explanations for those findings.  His ultimate
    conclusion appears at para. 171 of his reasons:

I do not accept Remy Boghossians evidence that he was a dupe
    manipulated by Ebrekdjian and others.  I am satisfied beyond a reasonable doubt
    that Remy Boghossian was a knowing participant in the presentation of the
    fraudulent bank draft to the Royal Bank of Canada on February 10, 2011, and
    subsequently possessed gold knowing it had been obtained by a criminal offence.

[5]

Our review of the reasons reveals no reversal of the burden of proof by
    the trial judge.  In fact, as acknowledged on the appeal, the trial judge
    properly identified and described the burden of proof at least twice in his
    reasons.  In our view, the trial judge did not convict the appellant because he
    disbelieved the appellant, but rather he disbelieved the appellant because, on
    the totality of the evidence, he was satisfied beyond a reasonable doubt that the
    appellant knew that Ali did not exist.

[6]

We also cannot accept the submission that the trial judge drew
    speculative inferences from some of the evidence.  While we agree that there
    were pieces of evidence that may have admitted of exculpatory inferences, it
    was ultimately for the trial judge to decide what inferences should be drawn from
    any particular piece of evidence.  The inferences that he drew were reasonably
    available to him on the evidence.

[7]

It is not surprising in a case of this sort that the trial judge did not
    address each and every piece of evidence separately in his reasons.  He is not
    obliged to do so.  The trial judge clearly had a full command of the evidence.
    This is not a case in which it can be said that the trial judge failed to
    consider evidence that was central to a contested issue or issues.  To the
    contrary, the trial judges reasons focused on the only contested issue  did
    the appellant know that Ali did not exist?

[8]

For the above reasons, we would dismiss the conviction appeal.

The Sentence Appeal

[9]

The sentence imposed of three and one-half years was well within the
    range appropriate to a large-scale fraud such as this.  Counsel submits that
    the appellant should have received the same sentence that was imposed on his
    co-accused.  Each received three years.  In our view, the extra six months
    awarded the appellant does not raise parity concerns.  The appellant was a
    lawyer.  His status as a lawyer and the role his status as a lawyer played in
    the commission of the offence justified treating this as an aggravating factor,
    warranting a somewhat higher sentence for the appellant.  We see no error in
    the sentence imposed.

[10]

The
    sentence appeal is dismissed.

[11]

We wish to make it clear that we were able to deal with this appeal,
    a matter of some complexity, expeditiously in large measure because the trial
    judges reasons were so thorough and carefully done.

G.R. Strathy C.J.O.

Doherty J.A.

D. McCombs J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Budimirovic, 2017 ONCA 908

DATE: 20171124

DOCKET: M48509 (C61797)

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Alexsander Budimirovic

Appellant (Applicant)

Dana Achtemichuk, for the appellant

Tanit Gilliam, for the respondent

Heard and released orally: November 21, 2017

Application for release of audio
    recordings and exhibits of
in camera
proceedings.

REASONS FOR DECISION

[1]

The applicant seeks an order releasing audio recordings of portions of
    his trial that were held
in camera
and are subject to a sealing order
    made by the trial judge. He also seeks release of any exhibits filed during the
in camera
proceedings.

[2]

The portions of the trial with which we are concerned relate to a
    pre-trial application. The nature of the application prompted the trial judge
    to conduct the proceedings
in camera
and to order that access to what
    he termed the transcript  in an electronic form be preserved by the court
    reporter and restricted to the trial judge and counsel conducting the trial.

[3]

The trial judge also ordered that exhibits filed on the application and
    the indictment were to be retained by the registrar of the court and be kept
    under seal.

[4]

The applicant has appealed his conviction and sentence. At issue on the
    appeal from conviction is the correctness of the trial judges decision on the
    pre-trial application. It is self-evident that to assess the viability of this
    ground of appeal, not to mention to be able to pursue it if viable, counsel for
    the applicant requires a transcript of the
in camera
proceedings and
    any exhibits and other materials that formed part of the record before the
    trial judge. Transcript production cannot proceed without access to the
    recordings.

[5]

We are satisfied under s. 683 (1) (a) of the
Criminal Code
that
    it is in the interests of justice to order production of the audio recordings
    of the
in camera
proceedings, as well as any exhibits or materials
    filed for use in those proceedings, and, if necessary, the indictment.

[6]

The production shall be subject to the terms contained in the draft
    order which accompanies the application.

David Watt J.A.
C.W. Hourigan J.A.
B.W. Miller J.A.