COURT OF APPEAL FOR ONTARIO

CITATION: W.S. v. P.I.A., 2021 ONCA 923

DATE: 20211222

DOCKET: C69835

Hourigan, Trotter,
    and Zarnett J.A.

BETWEEN

W.S.

Applicant (Respondent)

and

P.I.A.

Respondent (Appellant)

Gary S. Joseph and
    Alice Parama, for the appellant

Gary Gottlieb and Mira Pilch, for the
    respondent

Heard: December 17, 2021

On appeal from the order of Justice Heather
    A. McGee of the Superior Court of Justice, dated September 9, 2021, with
    reasons reported at 2021 ONSC 5976.

REASONS FOR DECISION

[1]

The appellant mother appeals the trial judges order
    that transferred primary care of the parties two children to the respondent
    father. The order imposed an initial period of no contact by the mother, other
    than by Zoom or under supervision of a child and family therapist, and provided
    for increased parenting time to the mother in stages, with the goal of equal
    parenting time after six months. Prior to the order, the childrens primary caregiver
    was the mother.

[2]

At the conclusion of oral argument, we dismissed
    the appeal with reasons to follow. These are those reasons.

[3]

Parenting orders are inherently exercises of
    discretion:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R.
    1014, at para. 13. A trial judges exercise of discretion and factual findings
    in connection with it are entitled to deference on appeal:
A.M. v. C.H.,
2019
    ONCA 764, 32 R.F.L. (8th) 1, at para. 4. The caution an appellate court must
    show before interfering with a parenting order by a trial judge is all the more
    pronounced where, as here, the decision has already been implemented and we are
    asked to interfere with the trial judges step by step process mid-course, but
    without current information.

[4]

The trial judge made the order after an
    assiduous review of the evidence given at a 39-day trial. She found that the
    children were unable to spend as much time with each parent as was consistent
    with their best interests while they were in the primary care of the mother.
    She found that a transfer of primary care and a staged process toward equal
    parenting time was the only viable option in the childrens best interests
    given the conduct of the mother. She described that conduct as the mother
    having intentionally sought to undermine agreed, court-ordered parenting
    schedules and sabotage reunification counselling with false allegations of
    sexual abuse, in order to terminate the childrens relationship with the father.
    Despite the mothers statements to the contrary, the trial judge found the mother
    did not actually want the children to have any relationship with the father.

[5]

The mother raises a number of grounds of appeal
    that are, in essence, attacks on the trial judges factual findings. She argues,
    among other things, that the trial judge allowed the fathers counsel to lead
    witnesses, that she gave inconsistent treatment to what use could be made of
    prior judicial endorsements in cross-examination, and that she relied on
    evidence the father had scripted or that was based on his self-reporting. She
    argues that the trial judge did not refer to certain evidence that the mother
    says was helpful to her case. We see no merit in those grounds of appeal. The
    trial judge appropriately controlled the admission of evidence, was alive to
    how it was generated, and made justifiable rulings. The weight she gave, and
    her assessment of that evidence, was within her discretion. She was not obliged
    to refer to every piece of evidence. Her reasons show that she grappled with
    the essential issues. It is not the job of this court to retry the case.

[6]

The mother also submits that the trial judge
    permitted a non-expert to give opinion evidence favourable to the father yet
    prohibited such opinions from the mothers witnesses. We disagree. The trial
    judge imposed appropriate parameters for the scope of witness testimony, based
    on the individual circumstances of each witness and what they were being asked
    to give evidence about.

[7]

The mother also argues that the trial judge
    erred when she ruled certain evidence to be inadmissible, including recordings
    made surreptitiously by the mother. We see no such error. The trial judges
    rulings were made on proper considerations, including that she found the
    recordings to be unreliable.

[8]

We also see no error in the trial judge having
    herself raised the suggestion that an updated report from a custody assessor
    should be obtained, but then deciding to continue the trial without any update
    from that custody assessor. Given the breadth of the evidence that was
    available to her, and the need to bring a timely resolution to this high-conflict
    litigation, her decision was within her discretion. Nor was there an error in
    her refusal to draw certain adverse inferences as the mother suggests she
    should have.

[9]

Finally, the mother argues that the trial judge
    failed to properly take into account the provisions of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.)
that
    require consideration of family violence and its impact in prescribing the
    parenting arrangements that she did, and therefore failed to properly consider
    the best interests of the children. We disagree. The trial judge found that the
    mothers allegations of physical, financial, and sexual abuse were not
    established, and that any other past conduct of the father that may have been
    abusive had no impact on his present ability to be a primary caregiver and
    decision-maker. She found the father is the only parent able to foster and
    protect the boys emotional wellbeing, and moreover, that he is the only parent
    willing to support the children's relationship with the other parent.

[10]

The trial judge reached a reasoned conclusion
    about the parenting arrangements that were in the best interests of the
    children based on her assessment of the evidence and her consideration of the
    correct legal factors.

[11]

For these reasons, we dismissed the appeal.

[12]

Costs of the appeal are awarded to the father in
    the sum of $25,000, inclusive of disbursements and applicable taxes.

C.W.
    Hourigan J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914

DATE: 20211222

DOCKET:
    C69608

Lauwers, Paciocco and Thorburn
    JJ.A.

BETWEEN

York Region Standard Condominium Corporation No. 972

Applicant
    (Respondent)

and

Peter
    Tak Ming Lee and Mun Chung Leung

Respondents
    (Appellants)

Peter Tak Ming Lee and Mun Chung Leung,
    acting in person

Tony Bui, for the respondent

Heard: December 8, 2021

On appeal from the judgment of Justice Carole
    J. Brown of the Superior Court of Justice, dated May 28, 2021, with reasons
    reported at 2021 ONSC 3877.

REASONS
    FOR DECISION

[1]

The appellants are the owners and residents of a
    condominium unit in Richmond Hill. They appeal a compliance order made against
    them under ss. 117 and 134 of the
Condominium Act, 1998
, S.O.
    1998, c. 19. The order directed the appellants to permit the respondent, York
    Region Standard Condominium Corporation No. 972, or its agents to enter and
    inspect their unit and, if necessary, undertake maintenance or repairs under s.
    93(3) of the Act and Article VII of the Corporations Declaration in relation
    to the removal of Kitec plumbing. In addition, the court ordered the Corporations
    expenses to be added to the common expense payments due for the appellants unit
    and collected in the same manner as under s. 92(4) of the Act and Article VII
    of the Declaration. The court awarded costs on a full indemnity basis in the
    amount of $4,541.95, also to be added to the units common expenses.

[2]

The appellants have now completed the repairs to
    their unit to the satisfaction of the Town of Richmond Hill and the
    Corporation, which was permitted to inspect the unit sometime after the judgment
    under appeal was rendered. The appeal is not moot, however, because the appellants
    wish to argue on the merits in order to avoid the expense and cost consequences
    of the judgment below.

[3]

The basic facts are not in dispute. A couple of
    instances of leaks in Kitec plumbing in the building alerted the Corporation to
    the fact that Kitec plumbing was present in the units in the building. That
    form of plumbing had been recalled as faulty by its manufacturer in 2005. To prevent
    any future plumbing failures, on August 27, 2018, the Corporation
    issued a notice requiring unit owners to remove Kitec plumbing from their
    units.

[4]

The Corporations notice to unit owners gave
    them two options. The first was to use the contractors recommended by the
    Corporation to undertake the work at a set fee to be paid by the unit owner.
    The second option was to use a qualified contractor of their choosing and pay
    directly, but an owner taking this option would still be obliged to pay $750
    plus HST to the Corporation so that its engineer could inspect and certify that
    the work was done. The deadline for choosing the option was extended once. The appellants
    elected the second option but neglected to send a cheque to cover the
    inspection fee.

[5]

The appellants took out a building permit from
    the Town of Richmond Hill in December 2018, but because of Mr. Lees ill
    health, were unable to proceed. On November 25, 2019, Mr. Lee advised the
    Corporation that the Kitec plumbing had been removed but refused access for
    inspection purposes. The Corporation later learned that the Town of Richmond
    Hill had not closed the permit, indicating that there had been no engineers inspection.

[6]

In January 2020, the appellants again refused
    access to the Corporations agents. In July 2020, the Corporation brought the
    compliance application that resulted in the judgment now under appeal. The
    decision was released on May 28, 2021.

[7]

In an effort to close the building permit with
    the Town of Richmond Hill, the appellants engaged their own consultant to inspect
    the unit on June 14, 2021. The Town of Richmond Hill signed off on the building
    permit indicating that the repairs had been completed properly on June 22,
    2021. Later, the appellants allowed the Corporations agents access to inspect.
    The purpose of the compliance order has therefore been met.

[8]

Against that factual background, the appellants
    make several arguments. First, they argue that Kitec plumbing did not pose a
    significant risk to the building. We do not accept this argument. As noted
    above, there was evidence before the application judge that on two occasions
    leaky plumbing had been discovered in the building and that Kitec plumbing had
    been recalled because it was prone to leak. Not surprisingly, on two occasions Kitec
    plumbing has been recognised as a dangerous condition by the Superior Court:
Hawkins v. TSCC 1696
, 2019 ONSC 2560, at para. 39;
TSCC 1724
    v. Evdassin
, 2020 ONSC 1520, 18 R.P.R. (6th) 136, at para. 7.

[9]

Second, the appellants dispute the truth of the
    affidavit of the Corporations employee, in which she deposed that the
    Corporation experienced two significant water damage incidents as a result of
    faulty Kitec plumbing. Mr. Lee asserts, without evidence, that the failures
    were not significant, but were only pinhole leaks. He asks us to infer that
    the witness gave false evidence and that her affidavit should therefore be
    entirely rejected by the court. We do not accept this argument. In the context
    of a large, multi-unit residential building, pinhole leaks could well result in
    significant water damage. They certainly portend future more serious failures. The
    evidence substantiates, as the application judge found, the need for the
    Corporation to take the steps that it did in light of the Corporations
    responsibility for the building.

[10]

Third, the appellants argue that the Corporation
    could not use s. 117 of the Act to require owners to remediate their units
    because that section is aimed at bad conduct on the part of unit owners.
    Section 117 provides:

No person
    shall permit a condition to exist or carry on an activity in a unit or in the
    common elements if the condition or the activity is likely to damage the property
    or cause injury to an individual.

We do not accept this argument. This
    section is aimed at curbing harmful activities, as the appellants argue, but
    the language also covers a condition. We agree with the respondent that a
    condition of faulty plumbing in danger of failure is likely to damage the
    property and amply justifies a remedial order.

[11]

Next, we note that the application judge stated
    in her reasons that the appellants have not provided responding materials.
    The triage order made by Diamond J. required the appellants to file their
    responding record by March 17, 2021, which would have permitted time
    for the service of reply evidence by the Corporation. The appellants provided
    counsel for the Corporation with an unsworn, undated affidavit from Mr. Lee and
    Statement of Defense on April 29, 2021, more than a month late. The
    appellants filed their material with the court on May 7, 2021, the last
    business day before the application was scheduled to be heard in writing.

[12]

There is no explanation as to why the materials served
    and filed by the appellants did not appear to reach the application judge. We
    have reviewed the material that they filed. The substance of the appellants
    submissions has been discussed above. In our view, even assuming that Mr. Lees
    affidavit was admissible despite being unsworn, it added no new information
    that would have changed the outcome.

[13]

As to the matter of legal costs, under s.
    134(3)(b) of the Act, the court may order an owner to pay the damages incurred
    by the applicant as a result of non-compliance and the costs incurred by the
    applicant in obtaining the order. An award of damages or costs, along with any
    additional actual costs to the corporation in obtaining the order, shall be
    added to the common expenses of the unit under s. 134(5).

[14]

The application judge followed a long line of precedent
    in ordering costs against the appellants on a full indemnity basis because the
    balance of the unit owners are blameless and should not have to bear the legal
    costs of securing the compliance of one of the unit owners. In applying this
    law, she noted:

Due to the recalcitrance of the [appellants],
    the matter could not be settled without the intervention of the court. When the
    [appellants] continued to fail to comply, they were warned that the Corporation
    would seek full enforcement costs if they continued to fail to comply with the
Act
,
    Declaration and Rules of the Corporation.

[15]

We see no error in her approach to costs.

[16]

We dismiss the appeal on the merits, with costs,
    and while we grant leave to appeal costs, we also dismiss the costs appeal.

[17]

In this court, the Corporation seeks costs of
    about $9,000. It is unusual for this court to award costs for an appeal that
    exceed the costs of the proceeding leading to the judgment under appeal. We see
    no reason to exceed the application judges award of costs, and therefore fix
    costs before this court in the amount of $4,500, all-inclusive, and order that this
    amount be added to the common expenses attributable to the owners unit.

P.
    Lauwers J.A.

David
    M. Paciocco J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McLean v. Wolfson, 2021 ONCA 928

DATE: 20211223

DOCKET: C68103

Hourigan, Trotter and Zarnett
    JJ.A.

BETWEEN

Maxine Donna McLean

Plaintiff (Appellant)

and

Dr. Nikolaj Wolfson

Defendant (Respondent)

Maxine Donna McLean, acting in person

Eli Mogil and Pippa Leslie, for the
    respondent

Heard and released orally:
    December 17, 2021

On appeal from the order of Justice David
    L. Edwards of the Superior Court of Justice, dated January 30, 2020.

REASONS FOR DECISION

[1]

Dr. McLean appeals from the dismissal of her
    action against Dr. Wolfson.

[2]

Dr. McLean commenced the action on April 30th,
    2018. She alleged that Dr. Wolfson was negligent in performing surgery on
    her leg in 1995. Her Statement of Claim included the following averment in
    para. 5:  a recent X ray revealed that the appellants hips are not aligned
    and it was recently diagnosed that the defendant removed the fibula bone when
    he could have cut it to create a new bone in order to lengthen the right leg.

[3]

On November 8, 2018 counsel for Dr. Wolfson
    served a Request to Inspect Documents, pursuant to r. 30.04(2) of the
Rules
    of Civil Procedure
(R.R.O. 1990, Reg. 194).

[4]

Specifically, Dr. Wolfson requested copies of
    the recent X ray and any medical records relating to what had been recently
    diagnosed. Dr. Wolfson required this information in order to prepare a
    responsive statement of defence.

[5]

Although some X rays and medical records were
    provided to Dr. Wolfson, they dated back to 1995 and they were not the records
    apparently referred to in para. 5 of the Statement of Claim.

[6]

After further failed attempts to obtain these
    records Dr. Wolfson brought a motion for production.

[7]

On October 3rd, 2019, on consent, an order was
    made requiring production of these records within 30 days by the same motion
    judge. Dr. McLean failed to comply with this order.

[8]

Dr. Wolfson then brought a motion under rr.
    30.08 and 60.12 to dismiss Dr. McLeans action, based on her failure to
    properly respond to the request to inspect documents (r. 30.08) and failing to
    comply with the consent order (r. 60.12).

[9]

On the first return date, January 23, 2020, Dr.
    McLean sought an adjournment. Justice Lococo adjourned the motion for a week,
    until January 30, 2020. He gave Dr. McLean one last chance to comply with the
    consent order.

[10]

When the matter returned to court on January 30,
    2020 Dr. McLean sought a further adjournment which was denied. The motion was
    heard on its merits and the action was dismissed.

[11]

Dr. McLean submits that the motion judge erred
    in dismissing her action. Her main point is that the motion judge should have
    considered a lesser remedy, rather than dismissing her claim.

[12]

We do not agree.

[13]

In exercising his broad discretion under the
    applicable rules, the motion judge properly considered that Dr. McLean had
    ample time to produce the materials or records referenced in her Statement of Claim
    and that she had failed to provide a reasonable explanation for failing to do
    so. These circumstances supported the dismissal of the claim.

[14]

Dr. Mclean applies to adduce fresh evidence on
    the appeal. We decline to admit the evidence.

[15]

First, it fails to correct the deficiencies that
    resulted in the dismissal of the action. Second, Dr. McLean has failed to
    explain why these records could not have been produced in a timely fashion. It
    has been over three and a half years since Dr. McLean issued her Statement of Claim
    in which she referred to important medical records that were not produced as
    ordered. It would not be in the interests of justice to admit the proposed
    fresh evidence respecting a claim that dates back to 1995.

[16]

Accordingly, the appeal is dismissed.

[17]

We make no order as to costs.

C.W.
    Hourigan J.A.

Gary Trotter
    J.A.

B.
    Zarnett J.A.


WARNING

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

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

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

(a)     any of the following
    offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.J.R., 2021 ONCA 926

DATE: 20211222

DOCKET: M53007 (C69044)

Zarnett
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

G.J.R.

Applicant/Appellant

Chris Rudnicki, for the applicant

Justin Reid, for the respondent

Heard: December 10, 2021 by video conference

ENDORSEMENT

INTRODUCTION

[1]

The applicants bail pending appeal was revoked,
    on consent, when he was charged with various offences while on house arrest
    bail. He now applies to be released again on bail pending the hearing of his
    appeal under a stricter plan of release and with a different surety.

[2]

For the reasons that follow, the application is
    dismissed.

BACKGROUND

[3]

In May 2018, the applicant was charged with
    sexual assault, contrary to s. 271(1) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. At the time of the alleged offence, he was on probation following
    a youth robbery conviction. He was released pending trial on house arrest bail
    (later varied to a midnight curfew) with his father as surety.

[4]

His bail pending trial was not without incident.
    In September 2020, he was arrested in Thunder Bay for being unlawfully in a
    dwelling-house, drug trafficking, obstructing a peace officer, resisting a
    peace officer, and failing to comply with his release order. Following the
    September 2020 charges, he was again released on bail, under stricter house arrest
    conditions and with his mother as surety.

[5]

On December 10, 2020, the applicant was
    convicted of the sexual assault charge which is the subject of this appeal. On
    February 11, 2021, he was sentenced to two years less a day in custody,
    followed by two years probation.

[6]

The applicant appealed his conviction to this
    court.

[7]

On February 11, 2021, the applicant was released
    on bail pending appeal on consent, on house arrest terms with exceptions for
    medical emergencies, while in the presence of one of his sureties, and for
    work, with his mother and his sister as sureties. At that time, he raised two
    grounds of appeal.

[8]

On March 3, 2021, the applicant pleaded guilty to
    the September 2020 charges (except that his plea was to the lesser offence of
    drug possession instead of trafficking). He was given a 7-month conditional
    sentence order followed by 12 months probation. These orders included the
    following term: Do not attend the District of Thunder Bay.

[9]

On October 13, 2021, the applicant was arrested
    in Thunder Bay and charged with resisting a peace officer, uttering a forged
    document, failing to comply with his release order, and failing to comply with
    his probation order.

[10]

On October 21, 2021, the applicants bail
    pending appeal was revoked as a result of the new charges.

[11]

On November 24, 2021, the applicant was granted
    bail on the October 2021 charges by a Justice of the Peace on terms whereby the
    applicant is to reside with his stepfather, who is to be his surety, with a
    financial commitment of $20,000, on house arrest terms.

[12]

The applicant now applies for bail pending
    appeal on terms that mirror those put in place by the Justice of the Peace, but
    with a fivefold larger financial commitment ($100,000) by his surety, and a
    requirement that he wear an ankle bracelet so that he is subject, at his own
    expense, to GPS monitoring on a 24-hour basis.

[13]

The Crown opposes the order, on the basis that
    the applicant has failed to establish that the appeal is not frivolous and that
    his detention is not necessary in the public interest, having regard to both
    public safety and public confidence.

ANALYSIS

[14]

To obtain bail pending appeal, the applicant
    must establish that: (1) the appeal is not frivolous; (2) he will surrender
    himself into custody in accordance with the terms of the release order; and (3)
    his detention is not necessary in the public interest:
Code
, s.
    679(3)(a), (b) and (c).

[15]

In my view, the applicant has not established
    that the appeal passes the merits hurdle.

[16]

The applicant puts forward one ground of appeal
    as viable, having abandoned his other ground of appeal following the Supreme
    Courts decision in
R. v. G.F.
, 2021 SCC 20, 71 C.R. (7th) 1. He argues
    that the trial judge erred in the manner in which he addressed the defence of
    honest but mistaken belief in communicated consent. Specifically, he argues
    that the trial judge approached the issue as a question of whether the defence had
    an air of reality, but applied the wrong test when he determined that it had no
    air of reality and was thus not a defence he would have left with a jury if he
    had been sitting with one.

[17]

The applicant argues that in doing so, the trial
    judge confused the questions of threshold and ultimate reliability. The air of
    reality test does not ask whether there is credible evidence to support a defence.
    It asks whether there is any evidence which, if believed, could give rise to a
    reasonable inference that the accused took reasonable steps to ascertain the
    complainants consent. Only if there is no evidence concerning a defence can it
    be kept from the jury or rejected without further consideration. The applicant argues
    that his own evidence provided an ample evidentiary foundation which, if
    believed, could give rise to a reasonable doubt about whether he knew the
    complainant was not consenting.

[18]

There are two problems with this argument.

[19]

First, the trial judge concluded that the
    defence did not apply for two independent reasons, only one of which was
    expressed in terms of an air of reality. His comments on the air of reality
    were expressed in the alternative to his primary conclusion.

[20]

The trial judge first held that the defence did
    not apply because he found as a fact that the only communication the applicant received
    from the complainant was of non-consent. Section 273.2(c) of the
Code
precludes
    belief in consent being a defence where

there is no evidence that the
    complainants voluntary agreement to the activity was affirmatively expressed
    by words or actively expressed by conduct. In coming to his conclusion that
    there was no evidence of communicated consent (and in fact, only the opposite),
    the trial judge did not refer to the air of reality test. Accordingly, the
    suggested misapplication of that test does not affect this independent reason for
    rejecting the defence.

[21]

Second, this was a judge-alone trial. The trial
    judge was the arbiter of threshold and ultimate reliability. The trial judge
    applied the test in
R. v. W.(D.)
, [1991] 1 S.C.R. 741 and found that
    he did not believe the applicant; the applicants evidence did not give rise to
    a reasonable doubt; and that on the evidence he did accept, the Crown had
    proven its case beyond a reasonable doubt.

[22]

It is in that context that one must consider the
    applicants remaining argument. The trial judge as a second, alternative reason
    for rejecting the defence, held that the reasonable steps precondition to its
    application, found in s. 273.2(b) of the
Code
, was not met. He found
    that the applicant

did not take any steps, let alone
    reasonable ones, to determine whether [the complainant] was consenting to the
    sexual activity in question. He observed that the applicant, on his own
    evidence, had taken no such steps. It was in respect of this basis for rejecting
    the defence that the trial judge stated that the defence had no air of reality and
    that he would not have left it with a jury if he were sitting with one.

[23]

But assuming for the sake of argument that the trial
    judge did not respect the distinction between threshold reliability and
    ultimate reliability in stating whether the defence had an air of reality, the
    arbiter of ultimate reliability in this case was the trial judge. Even if as a
    threshold matter there was evidence of the applicant which, if believed, could
    show reasonable steps were taken, as an ultimate matter, there was no such
    evidence, as the trial judge made a clear finding that he did not believe the applicants
    evidence, and that it did not raise a reasonable doubt.

[24]

In
G.F.
, the majority of the Supreme
    Court stressed the importance of a functional and contextual reading of a lower
    courts reasons and directed appellate courts to resist the temptation to
    finely parse a judges reasons in search of error: at para. 69. In my view, a
    functional and contextual reading of these reasons can only lead to the
    conclusion that notwithstanding the use of the air of reality terminology, the
    reasonable steps precondition to the availability of the defence was rejected
    on the evidence that it was the trial judges job to ultimately assess.

[25]

The applicant also argued that the trial judge
    had the wrong focus when considering the defence. The trial judge found that
    the
actus reus
had been made out because the complainant lacked
    capacity to consent. Therefore, the trial judge should have looked at whether
    the applicant had an honest but mistaken belief as to the complainants capacity
    to consent.

[26]

Capacity is a precondition to consent:
G.F.
,
    at para. 43. The defence is an honest but mistaken belief in communicated
    consent, not just a belief that the precondition to consent existed. Accordingly,
    the basis on which the trial judge found the
actus reus
was met did
    not restrict what had to be present for the defence to apply. The trial judges
    findings negated the defence.

[27]

Whether an appeal meets the standard of not
    frivolous is a low bar:
R. v. Oland
, 2017 SCC 17, [2017] 1
    S.C.R. 250, at para. 20. However, in my respectful view, the applicants ground
    of appeal does not meet it.

CONCLUSION

[28]

In light of my conclusion on the merits of the
    appeal, it is unnecessary to consider whether the applicant has satisfied the other
    aspects of his onus. The application is dismissed.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney
    General), 2021 ONCA 931

DATE: 20211231

DOCKET: M52780 (C69253)

van Rensburg and Roberts JJ.A.
    and Tzimas J. (
ad hoc
)

BETWEEN

Larry Philip Fontaine,
et al.

Plaintiffs

and

The Attorney General of
    Canada
,
et al.

Defendants (
Responding Party
)

Proceedings
    under the
Class Proceedings Act
,
1992
, S.O. 1992, c. 6

Fay K.
    Brunning and Michael Swinwood, for the moving parties Dr. Edmund Metatawabin
    and IAP Claimants T-00185, S-20774 and S-16753

Brent Thompson, for the responding
    party the Attorney General of Canada

Heard: November 22,
    2021, with supplementary written submissions

REASONS
    FOR DECISION

[1]

The moving parties brought this motion pursuant to s. 7(5) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, to review an order of Strathy C.J.O.
    dated August 19, 2021, dismissing their motion to extend time to perfect their
    appeal in Court File C69253. The motion is opposed by the respondent, the
    Attorney General of Canada (Canada).

[2]

The moving parties are survivors of the St. Annes Indian Residential
    School (IRS) in Fort Albany, Ontario. Their proposed appeal arises in the
    context of the Indian Residential Schools Settlement Agreement (the IRSSA), a
    court‑supervised class action settlement agreement entered into between
    Canada, church defendants and plaintiff representatives in 2006. The IRSSA was
    approved by the orders of nine superior courts across Canada (the supervising
    courts), including an order of the Ontario Superior Court of Justice on March
    8, 2007 (the Implementation Order). A component of the IRSSA was the
    independent assessment process (the IAP) for the adjudication of abuse
    claims, which has been supervised by the courts. With the completion of all IAP
    claims across the country, the IAP was concluded on March 31, 2021.

[3]

The order under appeal is dated April 20, 2021 (the Independent Review
    Order).
[1]
The order was made by Perell J. as Ontario Supervising Judge under the IRSSA in
    the context of a Request for Directions (RFD) by Canada.
[2]
Canadas RFD sought an order appointing an independent special advisor (ISA)
    to conduct an independent review of certain IAP claims of the St. Annes IRS
    claimants that were settled before Canada provided additional disclosure
    pursuant to certain disclosure orders made by the Ontario Supervising Judge on
    January 14, 2014 and June 23, 2015 (the 2014 and 2015 disclosure orders). The
    proposed independent review was for the stated purpose of responding to public
    concern and confusion about the IAP claims involving St. Annes IRS, and in
    particular about the fairness of adjudications undertaken before Canada had
    provided the revised disclosure.

[4]

The moving parties and others opposed Canadas RFD on a number of
    grounds, including that the review process would be a duplication of an RFD
    proceeding underway before Glustein J. (the Metatawabin RFD #2)
[3]
and that the St. Annes IAP claimants would not be permitted to participate in
    the review process. The moving parties also objected to the Supervising Judge determining
    Canadas RFD, on the basis of his earlier recusal from hearing Metatawabin RFD
    #2.
[4]

[5]

The Independent Review Order directed an independent review of certain
    concluded claims of former St. Annes IRS students. The order appointed the
    Honourable Ian Pitfield, who had previously been appointed by the supervising
    courts for other purposes under the IRSSA, as ISA to conduct the review. The
    order required the ISA to make a report that contains his findings, conclusions
    and recommendations, and for the report to be provided to the court as a sealed
    document, and to Canada.

[6]

The moving parties filed a notice of appeal seeking to appeal the
    Independent Review Order to this court. They raised a number of grounds of
    appeal, including that the Supervising Judge ought to have recused himself from
    hearing Canadas RFD, in view of his recusal in respect of certain matters
    involving St. Annes IRS at an earlier stage; that the order for a review by
    the ISA does not comply with the IRSSA and the Court Administration Protocol,
    and amounts to an amendment to the IRSSA; and that the independent review of
    certain IAP claims of the St. Annes IRS claimants, undermines the proceedings
    that are already underway before Glustein J. in the Metatawabin RFD #2.
    Pursuant to the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, the
    appeal was to have been perfected by May 22, 2021.

[7]

In August 2021, the moving parties brought a motion seeking an extension
    of time to perfect their appeal. The motion judge dismissed the motion to
    extend time. He referred to the fact that the matter had been before this court
    previously when, in declining to grant a stay of the Independent Review Order,
    Paciocco J.A. had characterized the order as probably interlocutory.
[5]
The motion judge also referred to the fact that the moving parties motion for
    leave to appeal the order to the Divisional Court had been dismissed. In
    refusing an extension of time to appeal to this court, the motion judge
    observed that the justice of the case (which is the overarching consideration
    on a motion for an extension of time) did not require an appeal to this court
    where the moving parties statutory appeal rights had been pursued and their
    appeal had been dismissed.

[8]

While it was appropriate for Paciocco J.A. and the motion judge to have
    considered whether the order was final or interlocutory in determining the stay
    and extension of time motions, only a panel of the court can determine the
    question of jurisdiction on a final basis and quash an appeal: see
Courts
    of Justice Act
, s. 7(3). As such, the central issue before us when the
    review motion was argued was whether the Independent Review Order is final or
    interlocutory, and if final, whether the justice of the case warranted an
    extension of time.

[9]

The moving parties asserted that the Independent Review Order is a final
    order, while Canada, endorsing the preliminary conclusions on jurisdiction of
    Paciocco J.A. and the motion judge, argued that the order is interlocutory, and
    that the moving parties, having sought and been refused leave to appeal to the
    Divisional Court, had exhausted their appeal rights.

[10]

As
    a result of developments after the hearing of the review motion, it is now unnecessary
    to determine whether the motion judge erred in concluding that the Independent
    Review Order is an interlocutory order.

[11]

While
    this motion was under reserve, the court was advised by a letter from counsel
    for the moving parties that the ISA had issued his report on the independent
    review on November 30, 2021 and that on December 9, 2021, the Supervising Judge
    had made an order approving the report and discharging the ISA. Copies of the redacted
    report and the order were enclosed. In view of these circumstances, the panel
    invited written submissions on whether the appeal was moot, and if so whether
    the motion should be dismissed on that basis.

[12]

We
    have now received and considered the parties written submissions.

[13]

On
    a motion for an extension of time to appeal or to perfect an appeal, it is
    appropriate for the court to consider whether the appeal is moot. Just as it
    would not be in the interests of justice to extend time to appeal an order that
    lies outside the jurisdiction of this court, it would not be in the interests
    of justice to extend time to perfect an appeal that is moot: see, for example,
Obermueller
    v. Kenfinch Co-operative Housing Inc.
, 2016 ONCA 21, where the eviction
    authorized by the order under appeal had already taken place, and
Willenbrecht
    v. Willenbrecht
(1999), 120 O.A.C. 274, where a challenge to Ontarios
    jurisdiction to enter a divorce judgment was rendered moot by the other forum
    ceding to Ontarios jurisdiction to do so.

[14]

An
    appeal is moot where the factual substratum of the appeal has disappeared. This
    can occur where the order under appeal has been performed or is otherwise spent:
Borowski v. Canada (Attorney General)
, [1989] 1 S.C.R. 342, at p. 354.
    Where an appeal is moot, the court may nevertheless exercise its discretion to
    hear the appeal, considering such factors as the ongoing adversarial context,
    concerns for judicial economy and sensitivity to the role of the courts:
Doucet-Boudreau
    v. Nova Scotia (Minister of Education)
, 2003 SCC 62, [2003] 3 S.C.R. 3, at
    para. 17. The onus is on the party seeking to permit a moot appeal to proceed
    to demonstrate why the court should depart from its usual practice of refusing
    to hear moot appeals:
Tamil Co-operative Homes Inc. v. Arulappah
(2000), 49 O.R. (3d) 566, at para. 17.

[15]

We
    have concluded that the appeal is moot, and there are no grounds for the
    exercise of the courts discretion to hear the appeal. Accordingly, there is no
    basis for an extension of time to appeal.

[16]

The
    process contemplated by the Independent Review Order has been completed. The order
    appointed Mr. Pitfield as ISA to perform a review. The review has taken place
    and the ISA has submitted his report which has also been approved, through a
    subsequent order.

[17]

The
    moving parties, while continuing to make submissions about why it was wrong for
    the Supervising Judge to make the Independent Review order, and raising new
    concerns about the substance of the report and the procedures followed by the
    ISA, as well as the orders of the Supervising Judge approving the ISAs interim
    and final reports (which are not under appeal)
[6]
,
    have not provided any rationale for why the moot appeal should be permitted to
    proceed or why their motion should not be dismissed.

[18]

Canada
    submits that the moving parties appeal is moot. However, it argues that it
    would be useful for future proceedings between the parties if this court would
    determine whether the Independent Review Order is final or interlocutory. We
    disagree. We are not persuaded that the Independent Review Order is the type of
    order to arise again in proceedings between the parties.

[19]

For
    these reasons the review motion is dismissed. Canada advised that it is not
    seeking costs of the motion, and no costs are awarded.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.

E.
    Ria Tzimas, J. (ad hoc)

[1]
Although the moving parties appealed two orders  the order appointing Perell
    J. to hear the RFD and the Independent Review Order  they only sought an
    extension of time to appeal the Independent Review Order, and they are only
    seeking in this review motion to extend the time to appeal that order.

[2]
The RFD process is contemplated by the Implementation Order and the
    Court Administration Protocol, which is an appendix to that order.

[3]
In the
    Metatawabin RFD #2, which was filed on May 12, 2020 and amended in June 2020, the
    moving parties seek a declaration that Canada breached the 2014 and 2015 disclosure
    orders, as well as other relief, including an order compelling Canada to revise
    documentation used in their IAP claims so that St. Annes IRS IAP
    claimants can determine whether they should seek to re-open those claims.
    Canada has brought its own RFD seeking a summary dismissal and to strike the
    Metatawabin RFD #2 as an abuse of process. Both are before Glustein J.

[4]

Perell
    J.
recused
himself as Ontario Supervising Judge from
    hearing the Metatawabin RFD #2. See 2020 ONSC 3497, at paras. 20-24, a decision
    of Perell J. as Eastern Administrative Judge and Brown J. as Western
    Administrative Judge. Their order assigning the hearing of Metatawabin RFD #2
    to Brown J. was overturned by this court in 2020 ONCA 688, which resulted in
    the appointment of Glustein J. by the Chief Justice of the Superior Court to
    hear the Metatawabin RFD #2.

[5]
In
    April 2021 the moving parties brought a motion to stay the Independent Review
    Order and for other relief before a single judge of this court. In reasons
    reported at 2021 ONCA 313, Paciocco J.A. dismissed the stay motion after
    concluding that a stay pending appeal was not in the interests of justice. In
    the course of his detailed reasons, Paciocco J.A. observed that the order was
    probably interlocutory, and therefore outside this courts jurisdiction,
    militating against the existence of a serious issue to be determined on appeal.
    Following the dismissal of the stay motion, the moving parties filed a motion
    seeking leave to appeal to the Divisional Court. That motion was dismissed
    without reasons on July 8, 2021: 2021 ONSC 4848.

[6]
In its
    written submissions on the mootness issue,
Canada suggests that the
    moving parties may seek leave or bring an appeal from the Final Report. At this
    stage, we are not aware of any such appeal having been taken to this court.
    This review motion deals only with the appeal of the Independent Review Order.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Green, 2021 ONCA 932

DATE: 20211231

DOCKET: C68581

Tulloch, Hourigan and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Green

Appellant

Adrian Green, acting in person

Richard Litkowski, appearing as duty
    counsel

Philippe Cowle, for the respondent

Heard: November 3, 2021 by
    video conference

On appeal from the sentence imposed on
    August 12, 2020 by Justice Myrna L. Lack of the Superior Court
    of Justice, sitting with a jury.

REASONS
    FOR DECISION

[1]

In February 2018, the appellant committed a
    series of offences for which he has been convicted, all of which are
    significantly more serious than his previous criminal record.

[2]

The underlying facts of these offences included
    the appellant driving at a high rate of speed through a residential area so
    dangerously that he knocked down a stop sign and crashed into a fence. He then
    fled the scene to escape the police. Once apprehended, the car was searched, and
    he was found to be in possession of an illegal loaded firearm with an oversized
    magazine capable of holding 12 rounds of ammunition, with 11 rounds of
    ammunition loaded. The appellant was also found to be in possession of large
    quantities of illicit drugs, which included cocaine, both in powder form as
    well as crack cocaine, and a mixture of heroin and fentanyl.

[3]

The appellant pleaded not guilty but was found
    guilty after an 18-day trial.

[4]

At sentencing, the Crown sought a global
    sentence of 10 to 12 years, less pre-sentence custody. The defence sought a
    sentence in the range of 7 to 8 years, less pre-sentence custody on an enhanced
    2 to 1 basis, as well as
Duncan
credit to factor in the harsh
    pre-trial custodial conditions, including a significant amount of time spent under
    lockdown.

[5]

The sentencing judge imposed a global sentence
    of 10 years, less pre-sentence custody of 918 days, on an enhanced rate of 1.5
    to 1, or the equivalent of 46 months for a net sentence of 6 years and 2 months
    of incarceration.

[6]

The sentence was broken down as follows: four
    years custody for the firearm-related offences; four years of custody for the drug
    offences, to be served consecutively with the firearm-related offences;
    followed by six months of custody for the driving offences, to be served
    consecutively; and one year of custody for each of the possession of firearm
    while prohibited charges, to be served consecutively to the other offences, but
    concurrent to each other.

[7]

The appellant, through the assistance of Mr.
    Litkowski acting as duty counsel, raises three grounds of appeal:

a.

The sentencing judge erred in principle by
    failing to apply the jump principle;

b.

The sentencing judge failed to apply the
Duncan
credit principle; and

c.

The sentencing judge erred in principle by
    failing to consider the appellants personal circumstances, and more
    specifically did not address the systemic issues which may have impacted his
    moral blameworthiness, pursuant to this courts recent decision in
R. v.
    Morris
, 2021 ONCA 680.

Did The Sentencing Judge Err in Principle by
    Failing to Apply the Jump Principle?

[8]

At the outset of the imposition of sentence, the
    sentencing judge noted that the defence had raised the jump principle in
    support of their position on sentencing, and she quoted from the case of
R.
    v. Borde
(2003), 63 O.R. (3d) 417, at para. 39:

This principle cautions a court against
    imposing a dramatically more severe sentence than the sentences imposed upon
    the offender for similar offences in the recent the past. It has little
    application where the severity of the offenders crimes shows a dramatic
    increase in violence and seriousness.

[9]

She also cited this courts decision in
R.
    v. Courtney
, 2012 ONCA 478, in which the court found that where an
    offenders crimes were fundamentally different in kind and seriousness than the
    crimes for which they were previously sentenced, the jump principle is not
    engaged. Accordingly, in the appellants case, because the offences for which
    he was being sentenced were significantly more serious than his previous
    offences, the jump principle was not engaged.

[10]

We agree with the sentencing judges assessment.

[11]

The jump principle stands for the proposition
    that a subsequent sentence imposed on an offender should not be disproportionate
    to sentences imposed for prior offences, provided the subsequent offence is not
    significantly more serious than the prior offence. Essentially, a subsequent sentence
    for an offence should have an incremental increase proportionate to the
    frequency of the repeated offence:
R. v. White
, 2007 NLCA 44, 270 Nfld
    & P.E.I.R. 351. The application of this principle is contextual to the
    level of seriousness of the subsequent offences.

[12]

As noted by Rosenberg J.A. in
Borde
, at
    para. 39, the jump principle has little application where the severity of the
    offenders crimes shows a dramatic increase in violence and seriousness. The
    same is true when dealing with multiple convictions for an offender with a
    lengthy criminal record, or where previous sanctions have been ineffective in
    deterring the offender.

[13]

This is the case with the appellant. He has a
    significantly long criminal record, and the subject offences are significantly
    more serious than his prior offences. In addition, from his antecedents, it is
    obvious that previous lenient sentences have not affected his conduct or served
    to deter his subsequent behaviour. We also agree with the Crowns submissions
    that, taken together, the current offences for which the appellant was
    sentenced and that are the subject of this appeal eclipse the appellants prior
    criminal record as observed in
Courtney
, where the court stated, at
    para. 10:

The appellants crimes are fundamentally
    different in kind and seriousness than the crimes for which he was previously
    sentenced. Accordingly, the rationale for the jump principle  that successive
    sentences should be increased gradually  is simply not engaged.

[14]

For all these reasons, we would not give effect
    to the appellants arguments on this ground of appeal.

Did the Sentencing judge Err in Failing to
    Apply the
Duncan
Credit Principle?

[15]

The second argument raised by the appellant is
    that the sentencing judge erred in principle by failing to give effect to the
Duncan
credit principle. The appellant submits that his time in custody was
    exacerbated by the impact of COVID-19 lockdowns and the resulting inability to
    communicate with his family and receive family support. This resulted in the
    appellant suffering from post traumatic stress disorder and depression. In
    addition, according to the appellant, he was unable to secure medical
    treatment. He further submits that the sentencing judge was obliged to take
    these factors into consideration, and to give him additional enhanced credit.

[16]

While we agree that the sentencing judge was
    obliged to consider the harshness of the appellants pre-sentence custodial
    conditions, she was also obliged to weigh the evidence she heard on the issue
    and determine what weight, if any, she should place on such evidence. In our
    view, she did exactly that and decided not to place much weight on the
    appellants evidence on his pre-sentence custody.

[17]

Duncan
credit
    is a mitigating factor that a sentencing judge can consider in arriving at an
    appropriate sentence. As this court recently stated in the case of
R. v. Marshall
,
    2021 ONCA 344, at paras. 52-53:

[52]  The
Duncan
 credit is not a
    deduction from the otherwise appropriate sentence, but is one of the factors to
    be taken into account in determining the appropriate sentence. Particularly
    punitive pretrial incarceration conditions can be a mitigating factor to be
    taken into account with the other mitigating and aggravating factors in
    arriving at the appropriate sentence from which the
Summers
 credit
    will be deducted. Because the
Duncan
 credit is one of the mitigating
    factors to be taken into account, it cannot justify the imposition of a
    sentence which is inappropriate, having regard to all of the relevant
    mitigating or aggravating factors.

[53]  Often times, a specific number of days
    or months are given as
Duncan
 credit. While this quantification is
    not necessarily inappropriate, it may skew the calculation of the ultimate
    sentence. By quantifying the
Duncan
 credit, only one of presumably
    several relevant factors, there is a risk the
Duncan
 credit will be
    improperly treated as a deduction from the appropriate sentence in the same way
    as the
Summers
 credit. If treated in that way, the
Duncan

    credit can take on an unwarranted significance in fixing the ultimate sentence
    imposed. Arguably, that is what happened in this case, where on the sentencing
    judges calculations, the
Duncan
 credit devoured three-quarters of
    what the sentencing judge had deemed to be the appropriate sentence but for
    pretrial custody. [Citation omitted.]

[18]

The sentencing judge considered all the relevant
    factors on sentencing, including the mitigating and aggravating factors. She
    specifically noted that the appellant filed an affidavit and gave
viva voce
evidence at his sentencing hearing on the harshness of the pre-sentence
    incarceration and its impact on him. She also reviewed his extensive medical
    record and noted contradictions in his evidence. In particular, the appellant
    gave evidence about the extent and impact of the lockdowns on him, and his
    evidence was rejected. It was open to the sentencing judge to reject his
    evidence, and having rejected his evidence it was also open to the sentencing
    judge to determine whether she would treat the lockdown period of the
    pre-sentence custody as a mitigating factor.

[19]

In the end, she was not satisfied that the
    appellants pre-sentence incarceration, including his time spent in lockdown,
    warranted being treated as mitigating on his sentence, and therefore did not justify
    a further enhanced pre-sentence credit beyond the 1.5 to 1 basis. Her exercise
    of discretion is entitled to deference. We see no basis to interfere.

Did the Sentencing Judge Err by Failing to
    Consider the Appellants Personal Circumstances?

[20]

Finally, the appellant argues that the sentencing
    judge failed to consider the personal circumstances of the appellant, and more
    specifically the principles outlined in this courts recent guidance in
Morris
.
    We do not agree.

[21]

A complete reading of the sentencing decision
    reveals that the sentencing judge took into consideration the personal
    circumstances of the appellant, both as outlined in his pre-sentence report, as
    well as his
viva voce
evidence given at the sentencing hearing. The sentencing
    judge specifically recited a significant amount of the appellants personal
    history and circumstances under the heading, Pre-Sentence Report. It is true
    that she did not specifically reference his racial background and/or the impact
    of either systemic or specific racial discrimination, and how this might factor
    into his moral blameworthiness; however, this issue was never raised at his
    sentencing hearing, nor was any evidence adduced on the issue. Furthermore, the
    sentencing judge did not have the benefit of the
Morris
decision at
    the time of sentencing. We would not give effect to this ground of appeal.

Disposition

[22]

We are satisfied that the ultimate global
    sentence imposed in this case was appropriate in the circumstances, considering
    the seriousness of the offences, and the appellants antecedents. The sentence imposed
    was a fit one, and we see no error in principle that warrants appellate
    intervention.

[23]

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

M.
    Tulloch J.A.

C.W.
    Hourigan J.A.

Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Armstrong v. Moore, 2020 ONCA 49

DATE: 20200127

DOCKET: C66333

Strathy C.J.O., MacPherson and
    Jamal JJ.A.

BETWEEN

William
    John Armstrong and Teresa Jesus Armstrong

Plaintiffs (Appellants/Respondents by
    Cross-Appeal)

and

Howard Moore
,
Laureen Margaret Moore
,
Larry Joseph Edwards
,
Colleen
    Elizabeth Edwards
, Wayne Cartwright, Janet Cartwright, Julie Edwards,
    Lawrence Henry Hierlihy, Jeannette Theodora Hierlihy, Gloria Mae Edmunds,
    Carolee Stacey Hofman, Donald Demers and
Robert William Moore

Defendants (
Respondents
/
Respondents
    and Appellants by Cross-Appeal
)

Stuart R. Mackay, for the
    appellants/respondents by way of cross-appeal William John Armstrong and Teresa
    Jesus Armstrong

Shawn J. OConnor, for the
    respondent/appellant by way of cross-appeal Robert William Moore

Joseph W.L. Griffiths and Matthew G. T.
    Glass, for the respondent/appellant by way of cross-appeal Howard Moore and for
    the respondent Laureen Margaret Moore

No one appearing for the
    self-represented respondent Lisa Coutu (written submissions only)

No one appearing for the respondents Larry
    Joseph Edwards and Colleen Elizabeth Edwards

Heard: January 13, 2020

On appeal
    from the judgment of Justice Calum U.C. MacLeod of the Superior Court of
    Justice, dated November 27, 2018, with reasons reported at 2018 ONSC 7056, 5
    R.P.R. (6th) 316.

REASONS
    FOR DECISION

A.

overview

[1]

This appeal, involving claims for adverse
    possession and damages, arose in connection with the placement of an outhouse
    by one cottager on another cottagers property, with permission, for over 40
    years. The dispute arose when renovation activities on one property resulted in
    a washout of dirt that allegedly rendered unusable the outhouse and the cottage
    it serviced.

[2]

After a seven-day trial, the trial judge
    dismissed the appellants claim for adverse possession of a small
area
of land surrounding the outhouse but awarded them nominal compensatory and
    punitive damages, for a total of $15,000. The parties now appeal and
    cross-appeal that decision to this court.

[3]

At the conclusion of the oral argument we

dismissed the appeal and cross-appeal,
    with reasons to follow. These are our reasons.

B.

background facts

[4]

In 2003, the appellants William and Teresa
    Armstrong bought a cottage on the Ottawa River near Pembroke, Ontario. The
    cottage, purchased for $38,000, had no indoor plumbing and is accessible only
    via an access road along a deeded right of way on the property of the
    respondents Howard and Laureen Moore. The only toilet servicing the Armstrong
    property was an outhouse located on a non-travelled portion of the right of way,
    where it had been for over 40 years. A shed stood next to the outhouse and both
    were sheltered by mature cedar trees. Although the outhouse and shed were on
    the Moores land, the Armstrongs treated them as part of their cottage.

[5]

In 2006, Howard and Laureens son, the
    respondent Robert Moore, acquired property uphill from the Armstrongs property
    and began renovations. In 2007, Robert placed a large amount of fill on his
    land. When William Armstrong raised concerns with Robert and Howard Moore that the
    fill might seep onto his property, he was rudely rebuffed: Robert told him that
    it sucks to be at the bottom of the hill and suggested he get some sandbags,
    while Howard told him to get a lawyer if he was dissatisfied.

[6]

Later in 2007, a washout on Roberts
    property caused mud and water to surround and enter the Armstrongs outhouse.
    The Armstrongs alleged that this rendered their cottage unusable because they
    now had no toilet and they believed they could not get a permit to build a new
    one. They retained an engineer in 2008 who advised them that they were at risk
    of future washouts and recommended that they install a retaining wall.

[7]

The Armstrongs did not use their cottage
    again.

[8]

In 2009, the Armstrongs sued Robert Moore for
    $250,000 in compensatory and punitive damages, claiming that his
    negligence resulted in the loss of the use and enjoyment of their cottage.

[9]

Also in 2009, Howard Moore learned of potential
    claims for adverse possession in connection with his property. He cut down the cedars
    sheltering the outhouse and shed, removed the tree stumps, and posted signs warning
    other residents that they might lose their right of way if the adverse
    possession claims succeeded. Later, the shed and outhouse were destroyed when
    someone dumped snow and gravel on them.

[10]

In 2011, the Armstrongs began a second action
    claiming adverse possession of the lands involving the outhouse, shed, and
    surrounding cedars, and $100,000 in damages against Howard, Laureen, and Robert
    Moore and others for the destruction of their outhouse and shed, for the loss
    of the use of their cottage, and for promoting animosity against them.

[11]

Most of the other defendants in the second
    action were property owners whose property was accessed by the right of way. While
    most did not participate in the action or appeal, Lisa Coutu filed written
    submissions with this court explaining that she and Deric Coutu had contributed
    to the maintenance and improvement of the right of way since buying their
    property in 2012 and that losing the right of way would impede service vehicles
    from accessing homes to the south of the Armstrongs cottage.

C.

the trial judges decision

[12]

Both actions were heard together in a joint
    trial. The trial judge rejected the adverse possession claim because he
    concluded that the Armstrongs had not established that their predecessors in
    title had intended to permanently exclude the rights of the registered owners of
    the fee or of the right of way.

[13]

The trial judge found Robert Moore negligent in placing
    fill on his land in a way that unreasonably interfered with the rights of his
    neighbours. However, he found that the Armstrongs had failed to prove the
    quantum of their damages and had not mitigated their loss by cleaning up,
    repairing, or rebuilding their outhouse. He therefore awarded only nominal
    damages of $5,000 for the cost of cleanup, repair, and reconstruction, and
    $2,000 for the interruption in the use of the cottage.

[14]

The trial judge also found Howard Moore liable
    for aiding, abetting, and encouraging the destruction of the outhouse. He found
    that Howard knew that the Armstrongs depended on the outhouse and that it would
    be difficult to use their property without it. He also found that Howards conduct
    in removing the cedars without advising the Armstrongs contributed to the
    destruction of the outhouse and shed and that Howard encouraged vandalism and engaged
    in intimidation. Since by then the outhouse had already been damaged by Roberts
    negligence and there were frailties in the Armstrongs evidence as to their damages,
    the trial judge assessed nominal damages against Howard at an additional
    $3,000.

[15]

Finally, the trial judge found Howard liable for
    $5,000 in punitive damages for exacerbating the conflict between the parties, exposing
    the outhouse to further damage by removing the cedars, encouraging vandalism,
    engaging in intimidation, and for spoliation of evidence to impede the adverse
    possession claim by removing the cedars and their stumps so that their age
    could not be verified.

D.

Issues

[16]

The Armstrongs appeal on the issues of adverse
    possession, abandonment of the rights of way by other property owners, and the
    quantum of compensatory and punitive damages. Robert and Howard Moore
    cross-appeal on the issues of compensatory and punitive damages.

[17]

The four issues are thus: (1) adverse
    possession; (2) abandonment of rights of way; (3) compensatory damages; and (4)
    punitive damages.

E.

Analysis

(1)

Did the trial judge err in rejecting the

Armstrongs claim for adverse possession?

[18]

To succeed on a claim for adverse possession, a claimant must
    establish possession that is open, notorious, constant, continuous, peaceful
    and exclusive of the right of the true owner throughout a ten-year period:
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15, s. 4. The claimant must
    prove: (i) actual possession of the land in issue; (ii) an intention to exclude
    the true owner from possession of their land; and (iii) effective exclusion of
    the true owner from possession of their land:
Barbour v. Bailey
, 2016
    ONCA 98, 345 O.A.C. 311, at paras. 35-36;
McKay v. Vautour
, 2020 ONCA
    16, at para. 7. The ten-year period of possession must have occurred entirely before
    the land was placed under the land titles system. Adverse possession cannot
    arise after that time but is preserved if already acquired:
Land Titles Act
,
    R.S.O. 1990, c. L.5, s. 51;
McKay
, at para. 6.

[19]

Here, because the disputed land was placed under the land titles
    system in August 1998, the Armstrongs had to establish that their claimed right
    to adverse possession had crystallized before then.

[20]

The trial judge found that the Armstrongs easily met the first
    requirement for adverse possession: their predecessors in title had actual
    possession of the disputed land and used it as if it was a part of the cottage.
    He found clear evidence of continuous use for at least 30 years prior to 1998
    and quite likely longer.

[21]

However, the trial judge concluded that the Armstrongs had not
    established the second and third requirements: an intention to exclude and
    effective exclusion of the true owner from possession. For adverse possession,
    [t]he element of adversity means that the claimant is in possession without
    the permission of the true owner:
Teis v. Ancaster (Town)
(1997), 35
    O.R. (3d) 216 (C.A.), at p. 221. Or, as the trial judge stated, in a claim for
    adverse possession permission is fatal. He noted that the outhouse had been
    moved by one of the Armstrongs predecessors in title at the request of another
    landowner to whom Howard and Laureen Moore had sold property on which the
    outhouse had formerly been located. The trial judge found that this raises an
    inference that the outhouse was originally put in the new location with the
    consent of the Moores. He also found it troubling that the Armstrongs had not called
    evidence from their predecessors in title or explained why such evidence could
    not be adduced.

[22]

The Armstrongs assert that the evidence did not permit the trial
    judge to infer that the outhouse was placed in its current location with the Moores
    consent or permission and that he conflated permission with acquiescence.

[23]

We do not accept this submission. Absent palpable and overriding
    error or an extricable error of law, this court must defer to a trial judges
    findings of fact, inferences drawn from the facts, and the inference-drawing
    process itself:
Housen v. Nikolaisen
, 2002 SCC
    33, [2002] 2 S.C.R. 235, at paras. 6, 10, 19, 23;

Nelson (City) v. Mowatt
, 2017 SCC 8,
    [2017] 1 S.C.R. 138, at para. 38.

[24]

The Armstrongs have not met this exacting standard. There was an
    evidentiary basis for the inference that the Moores gave permission as to the
    placement of the outhouse on their land. The Moores were involved in the
    decision as to where to relocate the outhouse when it was moved from one part
    of their property to another part, such that the trial judge could infer that
    they did not merely acquiesce in but rather gave their permission as to where
    it was placed. In our view, on the evidence the trial judge was entitled to
    infer permission. There is no basis for this court to intervene.

(2)

Did the trial judge err in rejecting the Armstrongs
    claim that the other property owners had abandoned their rights of way?

[25]

The Armstrongs assert that the trial judge also erred in finding that
    the other property owners had not abandoned their rights of way. The Armstrongs
    contend that the trial judge conflated the test for adverse possession with
    the test for abandonment of easement.

[26]

We do not accept this submission. The trial judge found on the
    evidence that the Armstrongs predecessors in title did not intend to exclude permanently
    the rights of way of the other property owners, and that the use actually made
    of the land was not obviously inconsistent with their rights. As the trial
    judge noted, as a matter of law those property owners did not have to prove use
    of their rights of way in order to avoid losing them; indeed, the intention to
    abandon an expressly granted right of way cannot be presumed merely as a result
    of non-use:
Bison Realty Ltd. v. Athersych
(1998), 19 R.P.R. (3d) 48 (Ont.
    C.J.), at para. 82, affd (2000) 135 O.A.C. 226 (C.A.). In our view, the trial
    judge correctly identified the applicable legal principles and his application
    of those principles is entitled to deference. We therefore have no basis to intervene.

(3)

Did the trial judge err in awarding the appellants nominal
    compensatory damages against Robert and Howard Moore?

[27]

Both the Armstrongs and the Moores impugn the trial judges decision
    to award the Armstrongs nominal compensatory damages for Robert Moores
    negligence in causing damage to and loss of use of the outhouse and for Howard
    Moores aiding, abetting, and encouraging the destruction of the outhouse. The
    Armstrongs complain that the trial judge awarded too little; the Moores
    complain that he awarded too much.

[28]

We reject both positions.

[29]

The plaintiff bears the burden of proving their damages on the
    balance of probabilities. Where damages are difficult to assess, the court must
    do the best it can in the circumstances. But where the absence of evidence
    makes it impossible to assess damages, the court may award nominal damages:
TMS
    Lighting Ltd. v. KJS Transport Inc.
, 2014 ONCA 1, 314 O.A.C. 133, para. 61,
    citing
Martin v. Goldfarb
(1998), 41 O.R. (3d) 161 (C.A.), at para. 75,
    leave to appeal refused, [1998] S.C.C.A. No. 516.

[30]

Once the applicable legal principles are correctly identified, a trial
    judges assessment of damages attracts considerable deference before this
    court. Appellate interference is justified only where the trial judge made an
    error in principle, misapprehended the evidence, failed to consider relevant
    factors, considered irrelevant factors, made an award without any evidentiary
    foundation, or otherwise made a wholly erroneous assessment of damages:
TMS
    Lighting Ltd.
, at para. 60.

[31]

Here, the trial judge correctly identified the applicable legal
    principles. We do not accept the Armstrongs submission that the trial judge erred
    by improperly assessing the Armstrongs damages in 2018, with the benefit of
    hindsight that there had been no further washouts of their property, rather
    than from the perspective of 2008, when it was reasonably foreseeable based on their
    engineers report that there might be further washouts. This was only one
    factor, among several, for the trial judges conclusion that the Armstrongs
    were entitled to damages for only a short-term interruption of use of their
    cottage.

[32]

We also disagree with the Moores submission that they could not be
    liable for damage to the outhouse because Howard and Laureen owned the land on
    which the outhouse was situated. The trial judge correctly concluded that the
    outhouse was a chattel that the Armstrongs owned, rather than a fixture forming
    part of the land, because it had been moved on occasion and was purchased with
    the Armstrongs cottage. The trial judge found that the outhouse was located on
    the Moores land with their permission, and that Howard Moore was reckless if
    not deliberate and negligent if not intentional in taking actions that exposed
    it to foreseeable harm.

[33]

Having correctly identified the applicable legal principles, the
    trial judges decision to award only nominal damages is entitled to deference.
    He awarded modest nominal compensatory damages ($10,000 in total) because he
    was persuaded that the Armstrongs had suffered damage that has a measurable
    cost, but he was hampered by the absence of specific evidence as to the
    quantum of their damages, and he was satisfied that any further inquiry into
    the quantum would be disproportionate given the low amounts of damages
    potentially recoverable. We see no basis for this court to intervene with this
    decision.

(4)

Did the trial judge err in awarding the
    appellants nominal punitive damages against Howard Moore?

[34]

Lastly, the Armstrongs appeal and Howard Moore cross-appeals the nominal
    ($5,000) punitive damages awarded. The Armstrongs say the amount should have
    been $40,000, while Howard Moore says that none were justified.

[35]

Appellate deference is owed to a trial judges decision to award
    punitive damages, provided that they are a rational response to the facts, that
    is, where the misconduct of the defendant is so outrageous that punitive
    damages are rationally required to act as deterrence:
Whiten v. Pilot
    Insurance Co.
, 2002 SCC 18, [2002] 1 S.C.R. 595, at paras. 76, 100;
Pita
    Royale Inc. (Aroma Taste of the Middle East) v. Buckingham Properties Inc.
,
    2019 ONCA 439, 1 R.P.R. (6th) 1, at para. 27, leave to appeal refused, [2019]
    S.C.C.A. No. 307.

[36]

In our view, there was a rational basis for the trial judges
    decision to award nominal punitive damages given his findings that Howard Moore
    exacerbated the conflict between the parties, exposed the outhouse to further
    damage by removing the cedars, encouraged vandalism, and engaged in intimidation.
    The trial judge was entitled to find these acts justified a punitive award as malicious,
    oppressive, and high-handed misconduct that offends the courts sense of decency:
Whiten
, at para. 36, citing
Hill v. Church of Scientology of
    Toronto
, [1995] 2 S.C.R. 1130, at para. 196. It was open to the trial
    judge to conclude that punitive damages in this amount were rationally
    required.

[37]

However, we defer to another day whether a court is entitled to rely
    on spoliation of evidence as providing a basis for awarding punitive damages. Ontario
    jurisprudence has yet to resolve definitively whether spoliation is a cause
    action: See
Spasic Estate v. Imperial Tobacco Ltd.
(2000), 49 O.R.
    (3d) 699 (C.A.), at paras. 12, 22; leave to appeal refused, [2000] S.C.C.A. No.
    547. In our view, that issue need not and should not be resolved in this
    appeal.

F.

Conclusion

[38]

The appeal and cross-appeal are dismissed. As agreed by the parties,
    given the divided success there shall be no order as to costs.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Asfar v. Sun Life Assurance
    Company of Canada, 2020 ONCA 31

DATE: 20200120

DOCKET: C67095

Strathy C.J.O., MacPherson and
    Jamal JJ.A.

BETWEEN

Jean-Pierre
    N. Asfar and Equity Cheque Card Corporation Limited

Plaintiffs (Appellants)

and

Sun Life Assurance Company of
    Canada, Sun Life Financial INC. and Sun Life Financial Canada

Defendants (Respondents)

M. Niki Kanavas, for the appellants

Stephen H. Shantz and Aida Gregorian,
    for the respondents

Heard: January 17, 2020

On
    appeal from the judgment of Justice Shaun Nakatsuru of the Superior Court of
    Justice, dated May 23, 2019, with reasons reported at 2019 ONSC 3098.

REASONS FOR DECISION

[1]

Jean-Pierre Asfar is the principal of Equity
    Cheque Card Corporation Ltd. (ECCC). On April 26, 2018, Mr. Asfar and ECCC
    (collectively, the appellants) commenced an action against the respondents
    (Sun Life) on a number of grounds, including breach of contract, negligent or
    fraudulent misrepresentation, breach of trust, civil conspiracy and fraud. The
    action relates to five mortgages provided by Sun Life to the appellants.

[2]

Sun Life brought a motion to have the action
    dismissed on the grounds that it was frivolous and vexatious. The motion judge
    dismissed this motion on the basis that, while the Statement of Claim was
    confusing, it was not frivolous or vexatious.

[3]

Sun Life brought a motion for summary judgment
    on the basis that the appellants claim was barred by the
Limitations Act,
    2002
, S.O. 2002, c. 24, Sched. B. The motion judge granted this motion. He
    held that Mr. Asfar became aware of his potential cause of action in May 2006.
    He commenced the action 12 years later, in April 2018. Thus, under both the
    general two-year limitation period or the ten-year limitation period for claims
    relating to real property, the appellants claims were statute-barred.

[4]

The appellants appeal from the motion judges
    decision.

[5]

The appellants principal argument is that the
    motion judge erred by concluding that Mr. Asfar discovered his potential claim
    against Sun Life in May 2006.

[6]

We disagree. On this issue, the motion judge
    said:

From this record, I find it clear that Mr.
    Asfar knew by May 2006, that an action was the appropriate remedy for the
    losses and damages he believed that the Plaintiffs suffered at the hands of Sun
    Life. He took actions that individuals normally would in such a situation. He
    retained counsel. He sent numerous legal looking documents. He made demands. As
    well, these actions are consistent with his own affidavit.

I have assessed the substance of what Mr.
    Asfar was claiming in 2006 with the substance of his claims in his Statement of
    Claim. The rather rambling and incoherent nature of his allegations both in
    2006 and in his Statement of Claim does not make it an easy task. However, I
    find that they are fundamentally the same. Mr. Asfar takes issue with the
    financial dealings that he and his company had with Sun Life back in the 1990s
    and early 2000s. This constitutes the backbone of his claims. They are
    fundamentally the same.

[7]

There is no palpable and overriding error in
    this conclusion. Accordingly, the appeal is dismissed.

[8]

Sun Life is entitled to its costs of the appeal
    fixed at $3,450, inclusive of disbursements and HST.

G.R.
    Strathy C.J.O.

J.C.
    MacPherson J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Australia v. Rogation, 2020 ONCA
    72

DATE: 20200130

DOCKET: C65535 & C65986

Doherty, Watt and Hourigan JJ.A.

BETWEEN

The Minister of Justice and The
    Attorney General of Canada on Behalf of Australia

Respondents

and

Lloyd Rogation

Appellant

John Collins, for the appellant

Roy Lee, for the respondent Attorney
    General of Canada

Heard: January 28, 2020

On judicial review of the decision of
    the Hon. Jody Wilson-Raybould, ordering the appellants unconditional
    surrender, dated December 21, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellant
    does not pursue the appeal from the committal order. That appeal is dismissed.

[2]

The Minister
    considered the four-year delay between the arrest of the appellants
    co-conspirators and the request for extradition. She concluded that the delay
    did not rise to the level of an abuse, rendering surrender offensive to notions
    of fair play. She concluded that the delay was explained by the various factors
    identified by the requesting state.

[3]

In his
    submissions, counsel declares the steps identified by the requesting state as
    perfunctory and automatic. He argues none offer any explanation for the delay.

[4]

There is
    nothing in the record to support counsels characterization. Certainly, it
    would not apply were those same steps taken by Canada as the requesting state.
    The Minister is entitled to accept the representations made by the requesting
    state, particularly as they relate to the processes engaged by the requesting
    state.

[5]

The Ministers
    decision is reviewed on a reasonableness standard. Nothing in this record
    provides a basis for a finding that her decision to order the appellants
    surrender was unreasonable.

[6]

The application
    for judicial review is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Aylward v. Rebuild Response Group Inc., 2020 ONCA
    62

DATE: 20200131

DOCKET: C65844

Lauwers, Miller and Fairburn JJ.A.

BETWEEN

Mary
    Magdalene Aylward

Plaintiff (Appellant)

and

Rebuild Response Group Inc.,
    Harmony Homes Quinte Ltd.

and
    Tom Streek

Defendants (Respondents)

Jonathan Mesiano-Crookston, for the appellant

John Mastorakos, for the respondents

Heard: January 28, 2020

On
    appeal from the judgment of Justice Wolfram Tausendfreund of the Superior Court
    of Justice, dated August 9, 2018, with reasons reported at 2018 ONSC 4800, 92
    C.L.R. (4th) 291 and from the costs order, dated November 29, 2018, with
    reasons reported at 2018 ONSC 7174.

REASONS FOR DECISION

[1]

The trial judge dismissed the appellants claim for the return of the
    deposit she paid to the respondents with respect to the building contract for a
    new home. The building contract provided for a 25% deposit due upon signing
    contract. - $175,432.50.

[2]

The appellant terminated the building contract because she was unable to
    agree with the respondents on modifications to the building contract that could
    be done to reduce the cost to an amount that would be covered by fire insurance
    proceeds.

[3]

The appeal turns on the meaning of the term deposit in the building
    contract.

[4]

The law relating to deposits was set out generally by this court in
Redstone
    Enterprises Ltd. v. Simple Technology Inc.
,
2017 ONCA 282, 137 O.R. (3d) 374, which the trial judge
    cited at para. 70 of the decision. At para. 20 of
Redstone
,
this court quoted with approval
Tang
    v. Zhang
, 2013 BCCA 52
,
    359 D.L.R. (4th) 104, where Newbury J.A. noted, at para. 30, that:

A true deposit is an ancient invention of the law designed to
    motivate contracting parties to carry through with their bargains. Consistent
    with its purpose, a deposit is generally forfeited by a buyer who repudiates
    the contract, and this is not dependent on proof of damages by the other party.
    If the contract is performed, the deposit is applied to the purchase price [.]

[5]

The language of the building contract expressly identified the first
    payment of 25 percent of the contract price as a deposit in the phrase: 25% deposit
    due upon signing contract. - $175,432.50. As a real estate agent, the
    appellant would have been well aware of the ordinary role of a deposit.

[6]

The appellant argues that the trial judge erred in not taking the
    Independent Contractor Agreement [ICA] into account in his interpretation of
    the deposit provision in the building contract. The appellant argues that the
    word deposit in the building contract must be interpreted differently, in
    this case, in light of the ICA, which was signed by the parties on or about the
    same day as the parties signed the building contract. particular, the appellant
    invokes cl. 8 of the ICA, which provides:

For the services rendered by the Contractor as required by this
    Agreement, the Customer will provide compensation (the Compensation) to the
    contractor as follows: 25% of contract amount upon completion of each phase of
    construction to the satisfaction of the Project Management Team as well as the
    TD Bank Adjuster.

The appellant argues that the effect of the ICA is
    that the contractor was not entitled to the deposit unless it had completed 25
    percent of the work. In other words, the deposit was not really a true deposit.
    The appellant argues that very little work had been done, as building plans had
    not been agreed to, a building permit had not been obtained, and no ground on
    the rebuild had been broken.

[7]

The trial judge analyzed the ICA at para. 34 of his reasons and pointed
    out a number of problems with it that prevented him from reading it together
    with the building contract; in essence, the ICA did not mesh with the building contract
    in material respects. He took the view, at para. 35, that the ICA was a separate
    document and is not to be read as part of the building contract. He added: That
    is so, even if I were incorrect in my finding that the ICA is not enforceable
    in the absence of consideration.

[8]

The appellant pleaded that the ICA was not an enforceable contract. Nonetheless,
    counsel argued that it properly forms part of the factual matrix. Giving effect
    to this proposition would not assist the appellant. We do not accept the
    interpretation of the term deposit proposed by the appellant. The deposit was
    paid under the building contract, not the ICA, which does not use the term
    deposit at all. The terms of the documents regarding payment and the deposit do
    not conflict. The payment provision in the ICA means that the respondent could
    appropriate the deposit as revenue at the completion of the first phase, but
    that did not affect the fundamental character of the deposit as a deposit if
    the contract were not performed. The contract was not performed, as the trial
    judge found, because the appellant repudiated it.

[9]

The appellant next argues that the trial judge erred in failing to grant
    relief from forfeiture under s. 98 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43
.

[10]

The trial judge found, at para. 85, that the pleading was not
    sufficiently specific for me to find that the plaintiff has pleaded relief from
    forfeiture. But he then went on to analyze the claim and reject it, at paras.
    87-90, on the basis that the forfeited sum was not out of all proportion to the
    damages suffered and that it would not be unconscionable for the respondents to
    retain the deposit, in accordance with the principles set out in
Redstone
.

[11]

Regarding proportionality and the damages, the trial judges assessment was
    largely factual in nature. He fixed the damages suffered by the respondents at
    $150,000: at para. 82. We are not persuaded that in doing so he made a palpable
    and overriding error. The size of the deposit is not so significant that it
    would give rise to a finding of unconscionability based on proportionality alone.
    The factors referred to at para. 30 of
Redstone
for assessing unconscionability,
    such as an inequality of bargaining power, or a substantially unfair bargain, simply
    do not exist in this case. In our view, the trial judge did not err in
    concluding that there was no basis for relief from forfeiture in this case.

[12]

The appellant also seeks leave to appeal costs. The trial judge noted
    that the respondents substantial indemnity costs would have been $63,000,
    which compared favourably to the appellants claim for substantial indemnity trial
    costs of $75,000. He considered that an award of partial indemnity costs to the
    respondents in the amount of $38,000 all-in was reasonable and proportional. We
    do not see any error in the trial judges reasoning leading to the costs award.

[13]

For these reasons we dismiss the appeal with costs to the respondents
    fixed in the amount of $ 9,000, all-inclusive.

P. Lauwers J.A.

B.W. Miller J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bernard Property Maintenance v. Taylor, 2020 ONCA
    27

DATE: 20200116

DOCKET: M51103 (M51039)

Roberts, Paciocco and Harvison Young JJ.A.

BETWEEN

Bernard Property Maintenance

Responding Party
(Respondent in Appeal)

and

Paul Taylor

Moving Party (Appellant)

Paul Taylor, self-represented

David S. Strashin, for the responding party

Heard and released orally: January 9, 2020

REASONS FOR DECISION

[1]

Mr. Taylor seeks to vary the motion judges December 4, 2019 order,
    allowing on certain terms his motion for a stay of the order that he seeks
    leave to appeal. Specifically, Mr. Taylor seeks to remove the term in the
    motion judges order that requires Mr. Taylor to pay the respondent landlord
    arrears of rent in the amount of $14,250 by December 12, 2019. Mr. Taylor seeks
    to replace it with the term that he pays rent in the amount of $1,425 each
    month commencing January 1, 2020. It is common ground that Mr. Taylor
    has not made any payments to the respondent in accordance with the motion judges
    order.

[2]

These proceedings arise out of a landlord and tenant dispute between Mr. Taylor
    and the respondent. The respondent obtained an order for eviction and payment
    of rent arrears before the Landlord and Tenant Board, which Mr. Taylor unsuccessfully
    sought to appeal before a single judge of the Divisional Court and then a panel
    of this court reconstituted as a panel of Divisional Court. Mr. Taylor seeks
    leave to appeal the latter dismissal. He moved before a motion judge of this
    court for a stay of the order, which, as already mentioned, the motion judge
    granted on terms.

[3]

Mr. Taylor submits that he ought not to be required to pay rent arrears
    when he was obliged to use those monies to carry out necessary repairs to the
    leased premises. Mr. Taylor submits that the motion judge made the following
    reversible errors in requiring him to do so.

[4]

Mr. Taylor says that the motion judge effectively determined that Mr.
    Taylor made a mistake by not seeking a rent abatement from the Landlord and
    Tenant Board or the Court for the repairs to the leased premises that he says were
    necessary. According to Mr. Taylor, in doing so, the motion judge made an error
    of law by failing to comply with the principles under the Canadian Judicial
    Council Statement of Principles on Self‑Represented Litigants and Accused
    Persons. Mr. Taylor submits that he has rectified this error by filing an
    application for a rent abatement with the Landlord and Tenant Board and
    including the same request with this motion. Mr. Taylor abandoned his request
    that this panel adjudicate the rent abatement issue during oral submissions
    before this court.

[5]

We do not accept these submissions.

[6]

The motion judge did not determine that Mr. Taylor erred by failing to
    obtain a rent abatement. This issue was not before him. Mr. Taylor did not
    suggest to the motion judge that he wished to obtain a rent abatement. In
    paragraph 8 of his reasons, the motion judge sets out the respective
    submissions of Mr. Taylor and the respondent. These include Mr. Taylors
    dispute of the rental arrears given what he says are necessary repairs to the
    premises; and the respondents position that Mr. Taylor did not have any
    right to unilaterally decide that he would make repairs and offset the costs
    against his rent because no abatement had been authorized by the Board or any
    court, which was and remains true. The motion judge also notes, correctly, the
    fact that previous orders required rent to be paid.

[7]

We see no error in the motion judges decision. The CJC principles
    regarding self-represented parties were entirely respected. The motion judge could
    only deal with the evidence, issues and submissions before him. He thoroughly
    and carefully considered the evidence before him and the parties respective
    submissions. He properly applied the well-established test for a stay of the
    order that Mr. Taylor seeks leave to appeal. In particular, his reasons reflect
    a consideration of Mr. Taylors personal circumstances and potential prejudice
    if the stay were not granted. The motion judge exercised his discretion in
    favour of Mr. Taylor, granting the request to stay on reasonable terms,
    notwithstanding his conclusion that Mr. Taylor has an exceedingly difficult
    case to obtain leave to appeal the panels decision. The motion judges
    decision represents an appropriate balancing of all relevant factors and the
    parties competing interests.

[8]

For these reasons, we dismiss the motion.

[9]

Mr. Taylor shall pay the respondent its partial indemnity costs in the
    amount of $1,500, inclusive of disbursements and applicable taxes.

L.B. Roberts J.A.

David M. Paciocco
    J.A.

Harvison Young
    J.A.