WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives
    from all or a part of a hearing; or

(c) prohibiting the publication of a
    report of the hearing or a specified part of the hearing,

where the court is of the opinion that the
    presence of the media representative or representatives or the publication of
    the report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)
No person shall
    publish or make public information that has the effect of identifying a child
    who is a witness at or a participant in a hearing or the subject of a
    proceeding, or the childs parent or foster parent or a member of the childs
    family.

45(9)
The
    court may make an order prohibiting the publication of information that has the
    effect of identifying a person charged with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: Peel Children's Aid Society v. M.H., 2018 ONCA 619

DATE: 20180709

DOCKET: C65209

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Childrens
    Aid Society of the Region of Peel

Applicant (Respondent)

and

M.H. and
S.H.

Respondents (
Appellant
)

and

M.O.

Respondent (Respondent)

O. Benjamin Vincents, for the appellant, S.H.

Laura Shaw and Amanda Rozario, for the respondent,
    C.A.S.

James Cook and Chris Junior, for the respondent, M.O.

Heard: July 3, 2018

On appeal from the order of Justice Lucy K. McSweeney of
    the Superior Court of Justice, dated March 7, 2018, with reasons reported at
    2018 ONSC 1589, affirming the order of Justice Joseph W. Bovard
of the Ontario Court of Justice, dated December 31, 2015, with
    reasons reported at 2015 ONCJ 756.

REASONS FOR
    DECISION

[1]

This is an appeal from the
    order of McSweeney J. of the Superior Court of Justice, dated March 7, 2018, in
    which she dismissed an appeal from the order of Bovard J. of the Ontario Court
    of Justice, dated December 31, 2015. The latter order made the children of M.H.
    and S.H., namely Am and Az, Crown wards, without access.

[2]

The childrens father, S.H., appeals
    the decision of the appellate judge on numerous grounds.
[1]
One of those grounds is
    ineffective assistance of trial counsel, M.O. For the reasons that follow, the
    appeal is dismissed.

Background Facts

[3]

The two sisters who are the
    subject of this appeal, Am and Az, are now 13 and 4. On February 25, 2011, when
    Am was 6 and before Azs birth, a third daughter of M.H. and S.H., M, died. M
    was 27 months at the time, and died while in her parents care from
    complications arising from Vitamin D deficiency/rickets and asthma. An autopsy
    revealed that the complications were likely due to malnutrition.

[4]

On March 3, 2011, Am was
    medically assessed and it was determined that she had severely low levels of
    Vitamin D and B12. The doctor assessing Am advised S.H. that dietary
    supplementation was necessary. On April 13, 2011, after S.H. admitted that Am
    had not been given the recommended vitamins, the Peel Childrens Aid Society
    (the Society) commenced a child protection application.
Am was
    placed in foster care.

[5]

In September 2011, the appellants were arrested and criminally charged
    as a consequence of Ms death. They were held in custody for three months.

[6]

In 2012, the Society worked with M.H. and S.H.to establish a plan for Ams
    return to their care. The Society deemed the plan unsuccessful in January 2013,
    due to the unwillingness of Ams parents to cooperate with Society
    representatives.

[7]

Am was found to be in need of protection on April 17, 2013, pursuant to
    the

Child and Family Services Act
,
R.S.O. 1990, c. C.11 (the
CFSA
).
[2]
Her parents had overnight access with her until she was made a Crown ward
    without access.

[8]

M.H. gave birth to Az on October 20, 2013. Az was apprehended at birth
    and placed in foster care. Her parents had supervised access to her until she too
    was made a Crown ward without access.

[9]

Both Am and Az have had several foster placements since they were
    apprehended. They have been in the care of a paternal cousin, D.H., since June
    30, 2015. The Societys current plan is to have D.H. permanently adopt both Am
    and Az, with no access to the parents.

The Trial

[10]

The trial in the Ontario Court of Justice
    took place over 12 days between May and December 2014. The Society sought Crown
    wardship with no access, with a view to adoption. The parents, who did not
    testify, sought an order for the return of the children, with or without
    supervision.

[11]

The
    parents were convicted of manslaughter in October 2014. S.H. was sentenced to
    two years less a day and M.H. was sentenced to two years to permit her to serve
    her sentence in a federal facility. On May 27, 2015, the trial judge re-opened
    the child protection trial to introduce evidence of the convictions and
    sentences. He declined to admit the reasons for sentence.

[12]

S.H.
    and M.H. have appealed their criminal convictions to this court. Those appeals
    remain outstanding.

[13]

The
    trial judge found that Az was a child in need of protection under the
CFSA
.
    He based that decision on the parents failure to make alternative arrangements
    for the care of their children while incarcerated. In addition, based on the
    evidence of past parenting, he found that Az was likely to suffer physical harm
    if placed in her parents care.

[14]

The
    trial judge
made both children Crown
    wards without access. In support of that order, he undertook a detailed
    analysis as required by ss. 56 and 57 of the
CFSA
. As part of that analysis, he noted that
    the children would not be adequately protected if returned to their parents
    care due to their parents lack of cooperation with the Society. In addition,
    he found that there is no alternative that would be less disruptive to the
    children and that would be in their best interests.

First Appeal

[15]

On appeal to the Superior Court of Justice,
    S.H. and M.H. asserted multiple grounds of appeal. They argued that the trial
    judge was biased, and that he erred in his admission and use of various pieces
    of evidence, in failing to admit the reasons for sentence from their criminal
    trial and a late-filed expert report, in finding that there was no appropriate
    kin placement for a supervision order, in failing to consider Ams preferences,
    and in his use of past parenting evidence. They also asserted ineffective
    assistance of counsel at the trial, and the protocol of the court was followed
    to develop a record as the basis for the appeal judge to consider and decide
    the ineffective assistance of counsel issue.

[16]

The
appellate judge considered and rejected the
    appellants grounds of appeal. She found that the trial judges analysis was
    not tainted by any legal or factual errors.

She
    dismissed the ineffective assistance of counsel ground of appeal.
The appellate judge also considered the
    fresh evidence filed by the appellants and determined that it would not have affected
    the result.

Issues on This Appeal

[17]

Before this court, the appellant father argues
    that: (i) the appellate judge erred in upholding the decision that Az was in
    need of protection and in finding that both children should be made Crown wards;
    (ii) the Society obtained the Crown wardship order by abuse of process; (iii) the
    appeal judge erred in failing to find that the ineffective assistance of
    counsel did not allow for a fair trial; and (iv) the appellate judge did not
    properly review the fresh evidence. He also seeks to admit further fresh
    evidence on this appeal.

[18]

We do not give effect to any of these
    grounds of appeal.

Analysis

(i)

Need of Protection and Crown Wards

[19]

In our view, given the death of M while in her
    parents care, the previous finding that Am was in need of protection, and the
    appellants demonstrated inability to cooperate with the Society, there was
    ample evidence to support the finding made by the trial judge and affirmed by
    the appellate judge that Az was in need of protection.

[20]

With respect to the order for Crown
    wardship, the trial judge gave detailed reasons in support of his finding that
    the test for such an order had been met. The reasons included an assessment of
    the childrens physical, mental, and emotional needs, level of development,
    emotional ties to their parents, the merits of the plan put forward by the
    Society versus the parents plan, as well as the degree of risk that justified
    the finding that the children were in need of protection. The appellate judge
    made no error in declining to interfere with that finding.

[21]

The appellant submits that there was no
    evidence to support a conclusion that the parents were not prepared to work
    with the Society to ensure that their children received proper nutrition to
    keep them healthy and safe from harm. We disagree.

[22]

The trial judge noted that in none of the
    plans put forward by the parents for their childrens care was there any
    acknowledgment that they needed assistance in providing for the dietary needs
    of their children, nor was there any plan to improve their competence in this
    area. Instead, he found that they would take advice about nutrition only to the
    extent that it did not impede their criminal defence or conflict with their
    faith. The trial judge concluded, quite rightly in our view, that the parents
    were unwilling to put the childrens well-being first. It was also clear on the
    record that they continued to believe that they fed their children sufficiently
    to prevent malnutrition and vitamin deficiency, despite all of the evidence to
    the contrary.

(ii)

Abuse of Process

[23]

The argument advanced on this ground of
    appeal is that while the Society knew that the father had presented D.H. as
    someone who could care for the children, it proceeded to adduce evidence and
    argue before the appellate judge that the parents did not make plans for their children.
    Further, the appellant alleges that the Society hid from the appellate judge
    the fact that the father had given D.H.s contact information to the Society
    and that that amounted to presenting a plan. The result, he says, is that the
    Society ensured that what was to be a kin placement by either a supervision
    order or a custody order pursuant to s. 57.1 of the
CFSA
became a Crown wardship.

[24]

This is a serious allegation of malfeasance
    by the Society and its counsel. We see the allegation as entirely meritless.

[25]

The
    Society workers repeatedly asked the parents for names of family members who
    could potentially care for the children. D.H.s name was mentioned in 2012
    along with other family members. None of the family members presented a plan of
    care for Am at that time. The Societys position is that it does not, and has
    never, considered providing a name and phone number as equivalent to providing
    a plan of care. We reject the appellants submission that by providing phone
    numbers for various relatives he was presenting a plan of care.

[26]

It
    was not until after the trial, but before the release of the trial judges decision,
    that D.H. contacted the Society and had concrete discussions about a potential
    plan for her as a caregiver. By that time the children had been in the interim care
    of the Society beyond the statutory time limit, so the Societys focus was to identify
    a permanent placement. As the appellate judge noted,
A further
    kin placement under supervision of the Society, whether with D.H. or someone
    else, would not have advanced this goal.

[27]

At
    the time of the first appeal, D.H. had a strained relationship with the parents.
    She advised the Society that she would not supervise access visits if so
    ordered by the court.

[28]

We note as well that all parties knew that
    the children had been placed under D.H.s care by the end of June 2015. That was
    over a year-and-a-half before the first appeal hearing began.

(iii)

Ineffective Assistance of Counsel

[29]

On the first appeal, the parents alleged that their trial
    counsels representation was ineffective and rendered the trial verdict
    unreliable. The appellate judge first reviewed the applicable case law,
    including
Childrens Aid Society of the Regional Municipality of Waterloo
    v. C.T.
, 2017 ONCA 931, 286 A.C.W.S. (3d) 285, on the issue of whether this
    ground of appeal was moot. The appellate judge found that there was no error by
    the trial judge and thus she found that the issue of ineffective assistance of
    counsel was moot.

[30]

On appeal to this court, S.H. submits that
    the appellate judge misapplied the
Waterloo
decision. He argues that in that case, this court was
    simply applying the well-established principle that where a client has suffered
    no prejudice as a consequence of his or her counsels performance, there is no
    need to examine the performance to determine whether it was ineffective. In the
    present case, he submits that there was potential prejudice caused by, for
    example, counsel dissuading the parents from testifying.

[31]

We accept this submission. The fact that the
    trial judge did not err does not end the analysis of counsels performance if
    there is potential prejudice. The appellate judge erred in equating the absence
    of an error by the trial judge with an absence of prejudice. However, the
    appellate judge went on to conduct an analysis of the allegations of
    ineffective assistance of counsel, in the event that she erred in her
    conclusion of mootness. As part of that analysis, she considered the evidence tendered
    by the appellants and their trial counsel. She found no merit in any of the ineffective
    assistance of counsel allegations.

[32]

We
    see no basis to interfere with the appellate judges findings on ineffective
    assistance of counsel. She carefully considered each allegation and the
    evidence applicable to each claim. The analysis was exemplary and reveals no
    legal or factual errors.

[33]

On
    the appeal before us, counsel for the appellant placed particular emphasis on
    the allegation that trial counsel dissuaded him and his wife from testifying
    and failed to advise that their testimony would not impact their defence in the
    criminal proceeding. The appellate judge indicated that she could not find on a
    balance of probabilities that the appellants wished to testify. She further noted
    that S.H. confirmed in cross-examination on this point that his testimony would
    have reflected the contents of an affidavit he swore in November 2013. Having
    reviewed that affidavit, she found that had S.H. testified, his evidence would
    not have affected the result. There is no basis for this court to interfere
    with those factual findings.

[34]

We
    would not give effect to this ground of appeal.

(iv)

Fresh Evidence Below

[35]

On
    the first appeal, the parents sought leave to file fresh evidence
including: affidavits from each of them
    and from the Society, the sentencing reasons, medical records, and supplementary
    appeal records.

[36]

The appellate judge held that a majority
    of the fresh evidence re-states or confirms the parents views as expressed to
    the Society and referred [to] elsewhere in the trial evidence. She further
    found that the only evidence that updated the court about the children was in
    an affidavit sworn by D.H. That affidavit confirmed the appropriateness of the
    trial judges decision.

[37]

Given these findings, the appellate judge
    concluded, none of the fresh evidence could reasonably, when considered with
    the evidence adduced at trial, have affected the result.

[38]

We
    agree with the Societys submission that S.H.s affidavit confirmed his
    inability to cooperate with the Society, and his beliefs that M was properly
    fed, that he is a victim of a conspiracy, and that it is the Society that
    should be charged with failing to provide the necessities of life. This
    evidence supports the trial judges findings.

[39]

The
    filing of fresh evidence is not an opportunity to reargue a case
de novo
,
    making the same arguments based on slightly different material. While courts in
    child protection cases are generally more liberal in granting leave to file
    fresh evidence, in this case, where no new material information was tendered,
    the appellate judge made no error in finding that it would not have affected the
    result and in exercising her discretion to not admit the evidence.

(v)

Further Fresh Evidence

[40]

The appellant seeks leave to file further fresh
    evidence on this appeal, contained in an affidavit sworn in May of this year.
    The Society has filed a responding affidavit. Similar to the conclusion reached
    by the appellate judge, we are not satisfied that this new evidence would have
    affected the result in this case and decline to admit it.

[41]

The appellants evidence is filed for two
    purposes. First, it is tendered to show that the parents had made arrangements for
    D.H. to care for the children when they were incarcerated. However, as stated
    above, no plan for D.H. to care for the children was presented prior to trial
    and the availability of D.H. was known to all of the parties well in advance of
    the appeal. This is not new information and we are not satisfied that it would
    make any difference to the outcome of the trial, the first appeal, or this
    appeal.

[42]

Second, the new evidence is filed to show
    that the parents youngest child is in their care. Although the Society has
    continuing concerns about the parents parenting ability, and is monitoring the
    situation closely, they have not taken steps to remove the child. The appellant
    submits that this establishes that there are no safety concerns relating to his
    and his wifes parenting and that Am and Az should be returned to their care.

[43]

We commend the efforts made by the
    appellant and his wife to properly care for their youngest child. However, we do
    not see this fresh evidence as establishing the absence of any continuing
    safety concerns for Am and Az. Most importantly, the focus must be on what is now
    in the best interests of Am and Az, the children that are the subject of these
    proceedings. Based on the fresh evidence filed by the Society, both children
    are thriving in their current environment. Am is going into grade eight in
    September. She attends public school and is active in sports and music. She has
    not seen her parents in several years. Az will be attending senior kindergarten
    next year and is progressing well in her early education. She has never known
    her parents. The Societys plan is for D.H. to permanently adopt the children. They
    are doing well with her now, and there is every reason to expect that they will
    continue to do so.

[44]

In these circumstances, we are not
    satisfied that the fresh evidence changes anything. It is not in the best
    interests of Am and Az to alter their current living situation.

Disposition

[45]

The
    appeal is dismissed. The parties agreed that there should be no order for the
    costs of the appeal.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A

[1]

The mothers appeal, which asserted overlapping grounds of
    appeal, was dismissed when the mother failed to meet the deadline to perfect
    her appeal.

[2]

O. Reg. 157/18: Transitional Matters under the new
Child,
    Youth and Family Services Act, 2017
, S.O. 2017, c. 14, Sched. 1, provides
    at s. 11(1) that, A proceeding commenced under Part III of the old Act but not
    concluded before the day this section comes into force is continued as a
    proceeding commended under Part V of the Act.


COURT OF APPEAL FOR ONTARIO

CITATION: Popack v. Lipszyc, 2018 ONCA 635

DATE: 20180712

DOCKET: C64359

Doherty, Brown and Nordheimer JJ.A.

BETWEEN

Jospeh Popack, United Northeastern Retail
    Portfolio Inc., United Burlington Retail Portfolio Inc., Capture Real Estate
    LLC, Miriam Popack, Ephriam Piekarski, Mendel Hendel, Schneur Zalmen Hendel,
    Sholom Ber Hendel, Rivka Feldman and Deborah Zissy Raskin

Applicants (Appellants)

and

Moshe Lipszyc and Sara Lipszyc

Respondents (Respondents)

Marvin J. Huberman and Daniel Sheppard, for the
    appellants

Colin P.
    Stevenson and Neil G. Wilson, for the respondents

Heard: February 8, 2018

On appeal from the order of Justice Grant R. Dow of the
    Superior Court of Justice, dated August 28, 2017, with reasons reported at 2017
    ONSC 4581.

Brown J.A.:

I.

OVERVIEW

[1]

This appeal concerns when an international commercial arbitration award
    becomes binding on the parties for the purposes of judicial recognition and
    enforcement.

[2]

In Ontario, the recognition and enforcement of international commercial
    arbitration awards is governed by the
International Commercial Arbitration
    Act,

2017
, S.O. 2017, c. 2, Sched. 5 (the
ICAA
),
[1]
the successor to the
International Commercial
    Arbitration Act
, R.S.O. 1990, c. I.9
, the legislation in
    effect at the time of the arbitration in this case.

[3]

The
ICAA
states that two international instruments concerning
    international commercial arbitration have the force of law in Ontario: (i) the
Convention
    on the Recognition and Enforcement of Foreign Arbitral Awards
, adopted by
    the United Nations Conference on International Commercial Arbitration in New
    York on June 10, 1958 (the Convention); and (ii) the
UNCITRAL Model Law
    on International Commercial Arbitration
, adopted by the United Nations
    Commission on International Trade Law on June 21, 1985, as amended on July 7, 2006,
    (the Model Law). The Supreme Court of Canada has described the Model Law as a
    codification of best practices:
Yugraneft Corp. v. Rexx Management Corp.
,
    2010 SCC 19, [2010] 1 S.C.R. 649, at paras. 10-11.

[4]

In August 2013, the appellants obtained an international commercial
    arbitration award against the respondents. It was in an amount significantly
    lower than the appellants had sought in the arbitration. The appellants applied
    to set aside the award under art. 34 of the Model Law on the basis that the
    arbitrators had followed an improper procedure. In February 2016, this court
    affirmed the dismissal of the appellants set aside application.

[5]

The appellants thereupon applied under arts. 35 and 36 of the Model Law
    for the recognition and enforcement of the award.

[6]

The application judge dismissed the application, holding that the award
    was not yet binding on the parties because the respondents were seeking to
    raise further issues before the arbitral panel and the panel had expressed its
    willingness to consider the further issues.

[7]

The appellants appeal. I would allow the appeal. The application judge
    erred in law in interpreting the recognition and enforcement provisions of the
    Model Law and made palpable and overriding errors in applying the Model Law to
    the circumstances of this case.

II.

THE EVENTS CONCERNING THE ARBITRATION

[8]

The appellant, Joseph Popack, and the respondent, Moshe Lipszyc, jointly
    invested in commercial real estate in the Greater Toronto Area. In 2005,
    disputes arose between them.

[9]

After disagreeing for several years about how to resolve their
    differences, they submitted their disputes to arbitration before the Beth Din
    (or Bais Din) of Mechon LHoyroa (the Beth Din), a rabbinical court in New
    York, pursuant to an Agreement to Submit to Arbitration dated November 10,
    2010, as amended by an addendum dated January 11, 2011 (collectively the
    Arbitration Agreement).

[10]

At
    the time the parties entered into the Arbitration Agreement, Mr. Popack resided
    in New York State and Mr. Lipszyc lived in Ontario.

[11]

In the Arbitration Agreement, the parties agreed that the
    Beth Din was a tribunal subject to the
ICAA
.

[12]

The
    rest of the appellants are corporations controlled by Mr. Popack, or
    individuals aligned in interest. The respondent Sara Lipszyc is the spouse of Moshe
    Lipszyc.

[13]

Under
    the Arbitration Agreement, the arbitral panel was free to choose the
    appropriate procedures by which to conduct the arbitration, no record was to be
    kept of the evidence or the submissions, and no reasons for decision were
    required from the panel.

[14]

Following
    an eight-week arbitration, held between January 2011 and March 2013 in Toronto,
    the arbitral tribunal issued an award, styled a Rabbincial Court Ruling, dated
    August 15, 2013 (the Award). The Award described the appellants as Party A
    and the respondents as Party B. The Award stated:

[T]he following Rabbincal Court Ruling was issued by us:

1) The funds escrowed with the Rabbincal Court [i.e., the
    sum of $440,000] shall be returned to Party A.

2) Party B shall pay Party A the sum of $400,000, whereby
    the parties are released from each other.

[15]

Mr.
    Popack thereupon brought an application under art. 34 of the Model Law to set
    aside the Award on the ground that the panel had breached the procedure agreed
    upon by the parties by holding an
ex parte
meeting with a rabbi
    who initially had been appointed to arbitrate the parties dispute.

[16]

Justice
    Matheson found that although the
ex parte
meeting breached
    the agreed upon procedure, providing a basis to set aside the Award, she would exercise
    her discretion under art. 34(2)(a)(iv) of the Model Law to refuse to set aside
    the Award. She dismissed Mr. Popacks application: 2015 ONSC 3460.

[17]

Mr.
    Popack appealed. By a decision dated February 18, 2016, this court dismissed
    Mr. Popacks appeal: 2016 ONCA 135, 129 O.R. (3d) 321. Mr. Popack paid all
    costs of the set aside proceedings ordered by the Ontario courts.

[18]

On
    April 11, 2016 appellants counsel wrote to the respondents counsel stating:
    [N]ow that the setting aside litigation has been finally concluded, and the
    costs issue now resolved, we would appreciate prompt payment of the
beth
    din
s award (italics in original).

[19]

Respondents
    counsel replied by letter dated April 22, 2016, stating:

[Y]our client should already be aware that my client will be
    asking the Beth Din to reduce the award by the amount he has wasted responding
    to Mr. Popacks failed court proceedings, including all related, uncompensated
    costs and damages. This matter is, as I understand it, currently before the
    Beth Din. Consequently, I will leave this to be dealt with between the
    rabbinical lawyers.

[20]

On
    June 24, 2016 the appellants commenced this application under arts. 35 and 36
    of the Model Law seeking an order recognizing and enforcing the Award and
    requiring the respondents to pay them the Canadian dollar equivalent of
    US$400,000.

[21]

In
    responding to the application, Mr. Lipszyc deposed that his claim for costs and
    damages, referred to in his counsels April 22, 2016 letter, would exceed
    $400,000. He took the position the Award was denominated in Canadian, not
    American, dollars. Mr. Lipszyc understood that the Beth Din was willing to
    address these issues only if and when Mr. Popack attended before it, which he
    refused to do.

[22]

On
    September 18, 2016 the Beth Din wrote to the parties in respect of its Award,
    stating:

The $400,000.00 Dollars award issued pertained to business
    transactions that [were] transacted in Canadian currency.

At no time during the proceedings did any of the parties raise
    the issue of distinguishing between United Sates Dollars and Canadian Dollars. However,
    as a matter of standard practice, claims asserted regarding business dealings
    transacted in Canadian funds result in awards that are calculated in Canadian
    Funds.

Accordingly, should any of the parties have claims and/or
    proofs that relate to the currency issue and for that matter any other claims
    that the parties wish to be resolved by the Rabbincal Court, please contact the
    Court Clerk, to schedule a hearing before the Rabbincal Court.

[23]

The
    Beth Din wrote the parties a further letter dated June 7, 2017, which stated:

The Bais Din has ordered that the [Award] is stayed until
    Popack comes back to the Bais Din for a hearing to determine Lipszycs claim,
    that Popack continuously breached the Arbitration Agreement, and what are the
    consequences for breaching the Arbitration Agreement.

III.

THE REASONS OF THE APPLICATION JUDGE

[24]

The
    application judge heard the application to recognize the Award at the same time
    as a motion by the respondents to stay recognition of the Award.

[25]

The
    respondents opposed the application to enforce on the basis the Award had not
    yet become binding on the parties within the meaning of art. 36(1)(a)(v) of
    the Model Law and art. V(1)(e) of the Convention.

[26]

The
    application judge accepted the respondents position. He identified three reasons
    why the Award was not binding on the parties: (i) he disagreed with Mr.
    Popack that at the time of his application to enforce there was an absence of
    any pending proceeding to appeal the award; (ii) he found that Mr. Lipszyc had
    expressed an intention to pursue further issues related to the subject matter
    arbitrated (para. 12); and (iii) the two post-Award statements from the Beth
    Din indicated that the arbitration process was not yet complete and the
    arbitral tribunal was not
functus officio
: at para. 13.

[27]

The
    application judge dismissed both the appellants application for recognition
    and the respondents motion to stay recognition of the Award.

IV.

POSITIONS OF THE PARTIES

The appellants

[28]

Mr.
    Popack submits the application judge erred in finding that the Award had not
    yet become binding on the parties within the meaning of art. 36(1)(a)(v) of the
    Model Law. In making that finding, the application judge committed three
    errors: (i) he ignored the mandatory rules in arts. 32 and 33 of the Model Law
    concerning the termination of arbitral proceedings; (ii) he improperly deferred
    to the Beth Dins view about the nature of the Award when, under the Model Law,
    it is the courts who determine whether an award is binding; and (iii) he failed
    to recognize that the matters raised by Mr. Lipszyc following this courts 2016
    order were new issues, which did not affect the binding nature of the Award.

The respondents

[29]

The
    respondents submit the application judge reasonably concluded that the Award
    was not yet binding because after the release of this courts 2016 decision it
    was apparent both sides were asking the tribunal for an interpretation of the
    currency in which the Award was denominated and to decide the post-Award cost
    issues.

[30]

The
    respondents contend an award cannot be binding when it is ambiguous and the
    tribunal has not yet declared the proceedings terminated. A partys request for
    costs or clarification of the currency of an award should be treated in the
    same fashion as a court challenge to set aside an award. Therefore, it was
    reasonable for the application judge to conclude the award was not yet binding
    because the tribunal had not yet determined whether it had fully adjudicated
    all issues.

V.

STANDARD OF REVIEW

[31]

The
    interpretation of a statute, such as the
ICAA
and its schedules,
    involves a question of law reviewable on a correctness standard:
Housen v.
    Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; and
Wilk v.
    Arbour
, 2017 ONCA 21, 135 O.R. (3d) 708, at para. 18. Deference, however,
    is shown to a courts determination of mixed questions of fact and law, such as
    the application of the statute to the circumstances of the case or the
    interpretation of an arbitration agreement:
6524443 Canada Inc. v. Toronto
    (City)
, 2017 ONCA 486, 415 D.L.R. (4th) 475, at para. 11.

[32]

The
    respondents contend that deference is owed to the application judges
    interpretation of the
ICAA
and its schedules, including the Model Law.
    They point out that in its endorsement in
6524443 Canada
this court
    stated, at para. 11, that the reasonableness standard applied to the motion
    judges interpretation of an arbitration agreement because her interpretation
    involved, as an integral part of the interpretation process, consideration of
    the meaning of the provisions of the relevant arbitration statutes. This was
    not however an extricable legal issue, that would be reviewable on a standard
    of correctness.

[33]

I
    read the endorsement in
6524443 Canada
in a different way. This
    courts statement was directed to the specific circumstances of that case,
    which did not call for an interpretation of the applicable domestic arbitration
    legislation but turned on the interpretation of the language of the particular
    arbitration agreement.

[34]

By
    contrast, the present case is concerned with the interpretation of the
    recognition and enforcement provisions of the Model Law, in conjunction with
    the provisions of the Model Law concerning the termination of proceedings (art.
    32) and the correction of awards (art. 33). These are issues with a high degree
    of generality, having implications beyond the parties and their specific
    Arbitration Agreement. Consequently, they are questions of law and the
    correctness standard applies:
Sattva Capital Corp. v. Creston Moly Corp.
,
    2014 SCC 53, [2014] 2 S.C.R. 633, at para. 51. As this court recently stated,
    the standard of review applicable to the interpretation of the Model Law and
ICAA
,
    as an issue of law, is correctness:
Trade Finance Solutions Inc. v.
    Equinox Global Limited
, 2018 ONCA 12, 420 D.L.R. (4th) 273, at para. 31.

VI.

THE GOVERNING PRINCIPLES

A.

The recognition and enforcement of awards under the Model Law

[35]

International
    and provincial instruments have established, in Ontario, a strong
    pro-enforcement legal regime for the recognition and enforcement of
    international commercial arbitration awards: see Gary B. Born,
International
    Commercial Arbitration
, 2d ed. (The Netherlands: Kluwer Law International,
    2014), vol. 3 at p. 3410. Article 35(1) of the Model Law mandates the
    recognition or enforcement of an arbitral award, subject to specified
    exceptions. Article 35(1) states:

35 (1) An arbitral award, irrespective of the country
    in which it was made, shall be recognized as binding and, upon application in
    writing to the competent court, shall be enforced subject to the provisions of
    this article
[2]
and of article 36.

[36]

In
    the present case, the respondents opposed recognition of the Award on the basis
    that it had not yet become binding on the parties, an exception to recognition
    or enforcement contained in art. 36(1)(a)(v) of the Model Law, which states:

36 (1) Recognition or enforcement of an arbitral
    award, irrespective of the country in which it was made,
may be refused only
:

(a) at the request of the party against whom it is
    invoked, if that party furnishes to the competent court where recognition or
    enforcement is sought proof that:

(v) the award has not
    yet become binding on the parties or has been set aside or suspended by a court
    of the country in which, or under the law of which, that award was made

(The full text of arts. 32-36 of the Model Law are
    reproduced in Appendix A to these reasons.)

[37]

The
    provisions of the Model Law regarding the recognition and enforcement of awards
    work together with those in art. 34 that specify the grounds upon which a party
    may have recourse against an arbitral award in the place of arbitration.
    Article 34(1) states that recourse to a court against an arbitral award may be
    made only by an application for setting aside in accordance with arts. 34(2)-(3).

[38]

Article
    34(3) pertains to timing requirements for bringing an application for setting
    aside an award: within three months from receipt of the award or, if a request
    was made under art. 33, within three months of when the request was disposed of
    by the tribunal.

[39]

Under
    art. 34(2), the grounds for setting aside an award mirror those for refusing to
    recognize and enforce an award found in art. 36(1), with one exception  they do
    not include that the award has not yet become binding on the parties, as
    provided in art. 36(1)(a)(v).

[40]

The
    general rule of interpreting the recognition and enforcement provisions of the
    Convention and Model Law is that the grounds for refusal of enforcement are to
    be construed narrowly:
Corporacion Transnacional de Inversiones S.A. de
    C.V. v. STET International S.p.A.
(1999), 45 O.R. (3d) 183 (S.C.), at para.
    26, affd (2000), 49 O.R. (3d) 414 (C.A.), leave to appeal refused, [2001] 1
    S.C.R. xi.

B.

The meaning of not yet binding on the parties

[41]

In
    his treatise, Born provides a useful commentary on the origins and possible
    meaning of the term binding used in both art. V(1)(e) of the Convention and art.
    36(1)(a)(v) of the Model Law.

[42]

Born
    observes, at pp. 3607-08, that one of the principal innovations of the Convention
    was its abandonment of the double
exequatur
 procedure, which
    required obtaining judicial confirmation of the award in the local court of the
    place of arbitration before seeking judicial enforcement abroad. As well, the
    Convention specifically abandoned the finality requirement contained in the
Geneva
    Convention on the Execution of Foreign Arbitral Awards of 1927
in favour
    of permitting the non-recognition of an award that has not yet become binding
    on the parties.

[43]

However,
    as Born notes at p. 3610, there remains considerable uncertainty surrounding
    the meaning of the [Conventions] new requirement that an award be binding. He
    observes, at p. 3611, that [i]n the words of one commentator, frustrated after
    a detailed review of Article V(1)(e)s drafting history, the meaning of this
    term [
i.e.
, binding] has always been a mystery (citations
    omitted).

[44]

Born
    offers, at p. 3610, a possible range of meanings for the term binding as a
    matter of pure textual construction:

[A]n arbitral award might be considered binding under the
    Convention when the award: (a) is made by the arbitral tribunal, without regard
    to possible or pending judicial, institutional, or other review under any
    foreign law; (b) is made by the tribunal, provided that no available internal
    appellate review within the relevant arbitral institution has been invoked; (c)
    is made by the arbitral tribunal, provided that no application for judicial
    review has been filed in an arbitral seat; (d) is made by the arbitral
    tribunal, and the time for pursuing an ordinary judicial challenge to the award
    in an action to annul under local law in the seat has expired, or any
    application for such review has been denied; (e) is made by the tribunal, and
    the time for seeking extraordinary judicial review under local law in the seat
    has expired, or any application for such review has been denied; (f) is made by
    the tribunal, and the award has been confirmed by a local court in the seat; or
    (g) is made by the tribunal, and all of the avenues of judicial review in
    paragraphs (a)-(f) have been exhausted, or the time for doing so has expired.

[45]

In
    Borns view, an award should be considered binding when the parties
    arbitration agreement provides that it is either final or binding, regardless
    of the possibility of subsequent judicial challenges of any sort: at p. 3617.

[46]

A
    number of national courts do not share Borns view. They interpret an award as
    binding when it is no longer open to recourse on its merits. This position
    finds expression, for example, in the decision of the Belgian Cour de
    Cassation, in
Inter-Arab Investment Guarantee Corporation v. Banque Arabe
    et Internationale dInvestissements
, (1999) XXIV Y.B. Comm. Arb. 603
    (Belgian Cour de Cassation), at para. 17, where that court stated:

It appears from the set-up of Art. V(1)(e) of the New York
    Convention [mirroring Art. 36(1)(a)(v) of the Model Law] that the award is
    binding on the parties, within the meaning of this provision, when it is no
    longer open to recourse on the merits. The question whether the award is open
    to such recourse is to be solved by referring, successively and one in the
    absence of the other, to the arbitration agreement, the law that it designates
    for such purpose, and, last, the law of the country in which the award was
    rendered.

[47]

Some
    national courts have divided avenues of recourse on the merits into ordinary
    and extraordinary ones, with a significant number of courts taking the view
    that an award becomes binding when a party has exhausted avenues of ordinary
    recourse.

[48]

For
    example, in
Diag Human SE v. Czech Republic
, [2014] EWHC 1639 (Comm),
    [2014] 1 C.L.C. 750, the English Queens Bench Division, Commercial Court,
    considered the meaning of binding within the context of the Convention. The
    court discussed the distinction between ordinary and extraordinary means of
    recourse in respect of an international arbitration award. In broad terms,
    ordinary recourse denotes a genuine appeal on the merits of an award to a
    second, review arbitral tribunal or a court; extraordinary recourse encompasses
    what the Convention and Model Law describe as set aside proceedings: at pp.
    760-63; see also
Dowans Holdings SA v. Tanzania Electric Supply Co. Ltd.
,
    [2011] EWHC 1957 (Comm), at paras. 17-27. In
Diag Human
, the court
    concluded that the arbitration agreement involved in the case permitted the appeal
    of a tribunals award to a review panel, which made the tribunals award
    subject to ordinary recourse. Consequently, the award was not binding for the
    purposes of the Convention pending the determination of that review: at pp. 779-80.
    See also J. Brian Casey,
Arbitration Law of Canada: Practice and Procedure
,
    3d ed. (Huntington, NY: JurisNet, 2017), at pp. 550-51.

[49]

A
    number of national courts regard set aside proceedings under art. 34 of the
    Model Law as a form of extraordinary recourse, the availability or initiation
    of which does not render an award non-binding. The Supreme Court of Canada is
    not one of them.

[50]

In
Yugraneft
, the Supreme Court of Canada took a different view. Although
    the Supreme Court did not employ the distinction between ordinary recourse
    and extraordinary recourse, it held, at paras. 54-55, that an award is
    notbinding under art. V(1)(e) of the Convention (or art. 36(1)(a)(v) of the
    Model Law) if it is open to being set aside under art. 34 of the Model Law,
    either because the three-month period in which to bring a motion to set aside
    has not expired or the set aside proceedings have not yet come to an end.

[51]

Moreover,
    the Supreme Courts treatment of the impact of the availability of a route of
    appeal or review on the recognition or enforcement of an award suggests that an
    award would not be binding while an ordinary recourse review or appeal
    remained outstanding. This result seems implicit in para. 57 of the courts
    reasons, where it stated:

A second consideration in the context of a recognition and
    enforcement of foreign arbitral awards is whether non-performance of the
    arbitral debtors obligation to pay arises when the award becomes final or only
    when an actual refusal to pay the award becomes apparent to the arbitral
    creditor. In my opinion,
the obligation to
    pay the award becomes exigible on the date the appeal period expires or, if an
    appeal is taken, the date of the appeal decision
. Failure to make
    payment on that date would constitute non-performance of the obligation. Thus,
    the injury has occurred and the conditions set out in s. 3(1)(a)(i) and (ii)
    are satisfied on that date. [Emphasis added.]

[52]

In
    any event, it is not necessary for the purposes of this appeal to express any
    definitive view on whether an award is not binding while an avenue of
    ordinary recourse, such as a review or appeal, remains open to a party. In
    the present case, the Award was issued on August 15, 2013. By the terms of the Arbitration
    Agreement, the arbitral tribunals decision [was] not open for appeal neither
    in any religious court nor in any secular court. Accordingly, by its terms the
    Arbitration Agreement did not provide for ordinary recourse against the Award
    on its merits.

VII.

APPLICATION
    OF THE GENERAL PRINCIPLES

[53]

Under
    the terms of the Arbitration Agreement, the Beth Din was operating as an
    arbitral tribunal to which the
ICAA
regime applied. Mr. Popack applied
    under art. 34 of the Model Law, within the stipulated three months from his
    receipt of the Award, to set aside the Award. His application was finally
    disposed of by the February 18, 2016 order of this court. In those
    circumstances, the principles in
Yugraneft
would suggest that the
    Award became binding on the parties on that date, for the purposes of
    recognition under arts. 35 and 36 of the Model Law.

[54]

That
    was not the view taken by the application judge. He identified three reasons
    why the Award was not binding on the parties: (i) he disagreed with Mr.
    Popack that at the time of his application to enforce there was an absence of
    any pending proceeding to appeal the award; (ii) he found that Mr. Lipszyc had
    expressed an intention to pursue further issues related to the subject matter
    arbitrated (para. 12); and (iii) the two post-Award statements from the Beth
    Din indicated that the arbitration process was not yet complete and the
    arbitral tribunal was not
functus officio
.

A.

Whether
    there was a pending proceeding to appeal the Award

[55]

Dealing
    with the first reason, the application judge appeared to take the view that Mr.
    Lipszyc enjoyed some right to further recourse against the Award. In para. 12,
    the application judge stated:

Joseph Popack also relies on the absence of
any pending proceeding to appeal the award
.
    I disagree.  Moshe Lipszyc made it clear within the three months permitted
    following the release of the Court of Appeal reasons dealing with Joseph
    Popacks efforts to set aside the award of its intention to pursue further
    issues related to the subject matter arbitrated that were not identified as
    dealt with in the Beth Dins communication of August 15, 2013 which could
    affect the obligation and amount one of the parties is to pay the other.
    [Emphasis added.]

[56]

To
    the extent this passage suggests that Mr. Lipszyc was entitled to take steps to
    appeal the Award, the application judge made a palpable and overriding error in
    interpreting the Arbitration Agreement, which specifically precluded any right
    of appeal from the Award.

[57]

The
    application judge referred to Mr. Lipszycs expression of his intention to take
    further steps within the three months permitted following the release of the
    Court of Appeal reasons. The application judge did not explain to what
    three-month period he was referring. The Arbitration Agreement contained no
    provision entitling a party to take steps against the Award within a
    three-month period.

[58]

If
    the application judge was referring to the three-month period to initiate set
    aside proceedings under art. 34(3) of the Model Law, then the application judge
    committed a palpable and overriding error in finding such recourse was
    available to Mr. Lipszyc. It clearly was not. Recourse against an award under
    art. 34 is only available where a party seeks to set aside the award. Mr.
    Lipszyc expressed no intention to do so.

B.

The
    correction or interpretation of the Award

[59]

Consideration
    of the application judges second and third reasons requires a review of the
    provisions of the Model Law dealing with the correction or interpretation of
    awards and the termination of arbitration proceedings.

[60]

In
    concluding that the Award was not yet binding on the parties, the application
    judge relied not only on Mr. Lipszycs intention to pursue further issues
    related to the subject matter arbitrated (para. 12), but also on statements
    issued by the arbitral tribunal. He wrote, at para. 13 of his reasons:

My conclusion that the communication by the arbitral tribunal
    or here, the Beth Din that the sum of $400,000.00 was to be paid by Moshe
    Lipszyc to Joseph Popack is not yet binding relies on the fact the Beth Din has
    released statements on two subsequent occasions, September 18, 2016 and June 7,
    2017.  On September 18, 2016 the Beth Din stated its willingness to consider
    additional issues.  On June 7, 2017 the Beth Din stayed the award until Joseph
    Popack appears before it.  Both statements are an indication that the
    arbitration process the parties committed to is not yet complete.  As a result
    enforcement proceedings are premature.  The Beth Din is not yet at the stage of
    being functus officio.

[61]

The
    respondents contend that the application judges conclusion was reasonably supported
    by the Model Law and the language of the Arbitration Agreement. They advance two
    main arguments: (i) the respondents request that the tribunal consider new
    issues falls within the procedure under art. 33 of the Model Law enabling a
    tribunal to correct or interpret an award or make an additional award; and
    (ii) their request falls within the continuing jurisdiction of the Beth Din
    under the Model Law and the language of the Arbitration Agreement.

(i)

First argument: Correcting or interpreting the Award

[62]

The
    respondents invoke art. 33 of the Model Law, which permits a party to apply to
    a tribunal, within 30 days of receipt of an award, to: correct in the award
    any errors in computation, any clerical or typographical errors or any errors
    of similar nature (art. 33(1)(a)); give an interpretation of a specific point
    or part of the award(art. 33(1)(b)); or make an additional award as to claims
    presented in the arbitral proceedings but omitted from the award (art. 33(3)).
    All such requests require notice to the other party. An interpretation can only
    be requested if so agreed by the parties.

[63]

The
    application judge did not identify which provisions of the Model Law, if any,
    he applied to reach his conclusion that Mr. Lipszycs intention to pursue
    further issues related to the subject matter arbitrated (para. 12) meant the
    Award was not binding. However, contrary to the submission of the
    respondents, art. 33 did not offer a route to reach that conclusion.

[64]

The
    respondents submit the dispute about whether the Award was denominated in
    Canadian or American dollars would fall within art. 33(1)(b) as a request for
    the arbitral tribunal to give an interpretation of a specific point or part of
    the Award. Whether it would or not need not be decided on this appeal. At the
    hearing of the appeal, the appellants unequivocally acknowledged, for all
    purposes, that the Award is denominated in Canadian dollars. As a result, the
    currency of the Award is not in dispute. No interpretation from the arbitral
    tribunal is required.

[65]

The
    respondents next submit that their intention to seek from the arbitral tribunal
    a reduction in the Award by the amount Mr. Lipszck has wasted responding to
    Mr. Popacks failed court proceedings would fall within art. 33(1)(a)  a
    correction  or 33(3)  an additional award. As a result, the application judge
    did not err in concluding the Award was not binding in the face of Mr.
    Lipszcks stated intention.

[66]

I
    am not persuaded by that submission. Born, at pp. 3126-27, described the narrow
    and limited scope of those provisions as follows:

The Model Laws provisions regarding corrections reflect the
    prevailing approach towards corrections in most jurisdictions  essentially, as
    a necessary evil that is tolerated, but not encouraged, and narrowly regulated.
    Notably, corrections are only available within a very limited time period (for
    both requesting and making a correction) following notification of the award
    and for only very limited reasons. These restrictions are imposed in order to safeguard
    the finality of awards, to limit uncertainty and to prevent ongoing disputes
    after an award has been made.

It is clear that only very narrow categories of errors may be
    corrected under the Model Law. In particular, only
errors in computation
,
clerical or typographical errors
or
errors of similar nature

    may be corrected. Article 33(1) is directed towards simple arithmetic mistakes
    in calculation or typographical errors (
e.g.
, failure to include one
    of a number of categories of damages which have been found payable in the
    dispositive section of the award, when this was clearly intended).

In contrast, errors in the tribunals reasoning in the body of
    its award are not subject to correction. As courts in some Model Law
    jurisdictions have reasoned, an arbitral tribunal is not authorized by Article
    33 to correct errors of judgment, whether of law or fact.

Even if a tribunal demonstrably misunderstands or overlooks
    some critical provision of the parties agreement or some essential piece of
    evidence, the remedy is not generally correction of the award under Article 33,
    but rather an application to annul. [Italics in original and citations
    omitted.]

[67]

According
    to Nigel Blackaby and Constantine Partasides,
Redfern and Hunter on
    International Arbitration
, 6th ed. (Oxford: Oxford University Press,
    2015), at p. 565, the purpose of art. 33(3) dealing with additional awards is
    to ensure that the arbitrators may complete their mission if they have omitted
    from their award decisions in relation to any of the claims presented in the
    proceedings.

[68]

The
    respondents stated intention to seek costs relating to the set aside and
    enforcement proceedings Mr. Popack took in the Ontario courts certainly does
    not constitute a computational, clerical or typographical error in the Award,
    nor a request to make an additional award as to claims presented in the
    arbitral proceedings but omitted from the award.

[69]

The
    respondents stated intention is based on events that took place after the
    Award was made; it raises a new issue. I note that respondents counsel, in
    cross-examination of Mr. Popack on his affidavit, accepted that Mr. Lipszycs
    claim for costs incurred after the issuance of the Award in the Ontario court
    proceedings was a new issue. Article 33 does not apply in those
    circumstances.

[70]

The
    respondents point to the decision of the Federal Court, Trial Division, in
Relais
    Nordik Inc. v. Secunda Marine Services Ltd.
, 1990 CarswellNat 1320 (F.C.T.D.)
    to support their position. Although in that case the court refused recognition
    of an award on the ground it was not yet binding on the parties, the facts of
    that case bear no resemblance to those in this case. The
Relais Nordik
case concerned an arbitration governed by the
Commercial Arbitration Code
(the Code), adopted by the
Commercial Arbitration A
ct, R.S.C. 1985, c.
    17 (2d. Supp.). The Code is based on the Model Law. At issue was a request to
    correct an obvious computational error of $500, in the context of an award of
    over $1 million. As well, the requesting party had complied with the 30-day
    time period in which to seek a correction to a computational error. Given those
    facts, that decision does not assist the respondents in this case.

(ii)

Second argument: The continuing jurisdiction of the arbitral tribunal

[71]

The
    respondents further submit there was no error in the application judges
    conclusion that the Award was not binding in light of the September 18, 2016
    and June 7, 2017 statements from the tribunal indicating its willingness to
    consider further claims by the parties.

[72]

The
    tribunals first letter dealt largely with the issue of the Awards currency.
    As mentioned, that no longer is an issue.

[73]

However,
    the Beth Dins first letter also stated that the parties could contact the
    rabbinical court clerk if the parties had any other claims that the parties
    wish to be resolved. The second letter purported to stay the Award until Mr.
    Popack returned to the Beth Din for a hearing to determine Lipszycs claim,
    that Popack continuously breached the Arbitration Agreement, and what are the
    consequences for breaching the Arbitration Agreement. The application judge
    regarded those letters from the arbitral tribunal as an indication that the
    arbitration process the parties committed to is not yet complete: at para. 13.

[74]

The
    application judge did not explain which provisions of the Model Law or
    Arbitration Agreement led him to regard the tribunals statements as supporting
    his conclusion that the Award was not binding. Nevertheless, in my respectful
    view, the application judge erred in law by conflating two distinct issues:
    first, whether the Award was binding for purposes of recognition or enforcement
    pursuant to the Model Law; and, second, whether the Beth Din had jurisdiction
    under the Arbitration Agreement to accept new claims from a party following the
    issuance of the Award. The application judge seemed to reason that if a party
    approached the arbitral tribunal with a request to consider a new issue some
    three years after the Award had issued, the Award was not binding for purposes
    of the Model Law.

[75]

With
    respect, the application judge fell into error by adopting such an approach. It
    ignored the operation of art. 32 of the Model Law.  Article 32(1) of the Model
    Law states, in part, that arbitral proceedings are terminated by the final
    award. Article 32(3) provides that [t]he mandate of the arbitral tribunal
    terminates with the termination of the arbitral proceedings, subject to the
    provisions of articles 33 and 34(4)  i.e., subject to a request for a
    correction or interpretation of an award, an additional award, or a suspension
    of setting aside proceedings by a court.

[76]

As
    Born points out at p. 3117, arts. 32(1) and (3)

of the Model
    Law are subject only to specific, carefully-defined exceptions for corrections
    and interpretation:

[S]ave for the particular statutory authorizations contained in
    the Model Law for corrections or interpretations of the award, a tribunal loses
    its capacity to act in an arbitration after the final award has been made.
    Thus, under the Model Law, the rule that an arbitral tribunal becomes
functus
    officio
 is expressly mandated, but with specified and
    carefully-delineated residual statutory authority. [Italics in original and
    citations omitted.]

[77]

As
    noted, on its face the Award was framed as a final award  the arbitral
    tribunal ordered the respondents to pay the appellants the sum of $400,000,
    whereby the parties are released from each other. In the Award, the Beth Din
    did not identify any other matter that required determination in the
    arbitration before the parties were released from each other.

[78]

However,
    the respondents argue that costs were one such matter. They contend that an
    arbitral tribunal possesses the jurisdiction to issue cost awards and therefore
    their request for costs relating to the Ontario court proceedings fell within
    the continuing jurisdiction of the arbitral tribunal.

[79]

As
    Casey notes, at p. 227: The Model Law does not address costs or scale of
    costs. As Born points out at pp. 3093-95, most international arbitration
    institutional rules grant the tribunal broad powers to award legal costs; even
    where they do not, the arbitration agreement should be interpreted to grant
    impliedly such authority.

[80]

In
    the present case, the Arbitration Agreement does not address the issue of
    costs. Even if the power to grant costs is to be implied, no evidence was filed
    on the recognition application that either party had asked the Beth Din to
    include costs in the Award. Even if they had and the Beth Din simply overlooked
    that claim, arts. 33(1) and (3) required any such request to be made within
    30-days of receipt of the Award. The respondents made no request in that period
    of time.

[81]

The
    evidence is clear why the respondents did not. Their request that the Beth Din
    consider a claim for court costs incurred after the issuance of the Award does
    not involve a matter of correction or an additional award as to claims
    presented in the arbitral proceedings but omitted from the award within the
    meaning of art. 33 of the Model Law. It is a request to adjudicate a new issue.

[82]

Even
    if it is a new issue, the respondents submit that the language of the Arbitration
    Agreement supports the application judges conclusion that the arbitral
    tribunal was not
functus officio
and the Award therefore was not
    binding.

[83]

The
    Arbitration Agreement provides: In the event that after an award is made a
    dispute between the parties arises as to the interpretation of the award,
    compliance of the parties, or if a party motions for reargument due to their
    claim of a judicial error or new evidence etc. the parties agree that the
    arbitrators shall have jurisdiction on the matters
to the extent permitted by law
 (emphasis
    added). The respondents contend that since the Beth Din indicated its
    willingness to entertain Lipszycs new issue about post-Award costs, it was
    exercising its jurisdiction within this language of the Arbitration Agreement,
    with the result the Award was not binding.

[84]

I
    make no comment on whether, under the Arbitration Agreement, the Beth Din would
    have jurisdiction to consider Lipszycs request for costs incurred in the
    Ontario court proceedings following issuance of the Award. That is a matter for
    the tribunal to decide. However, in regard to an application for the
    recognition and enforcement of an award, arts. 35-36 of the Model Law make it
    clear that it is up to the competent court to determine whether to recognize
    and enforce an award, including determining whether the award is binding on
    the parties. The final determination of any issue that may be raised under art.
    36, including whether the award is binding, rests with the court, not the
    arbitral tribunal:
Dalimpex Ltd. v. Janicki
(2003), 64 O.R. (3d) 737
    (C.A.), at para. 47.

[85]

On
    the facts of this case, the potential jurisdiction of the Beth Din to entertain
    a new issue about post-Award events does not affect the binding nature of the
    Award. The Award is framed as a final one. The Arbitration Agreement did not
    permit any review or appeal from the Award. Mr. Popacks set aside proceeding
    under art. 34 is at an end. Mr. Lipszycs request for post-Award costs does not
    fall within the categories of matters covered by art. 33 of the Model Law. The
    Award therefore is binding for the purposes of arts. 35 and 36 of the Model
    Law and should be recognized and enforced.

[86]

That
    conclusion is not affected by the Beth Dins June 7, 2017 statement that the
    Award is stayed. Under art. 36(1)(a)(v) of the Model Law, recognition or
    enforcement may be refused only if the award has been suspended by a court of
    the country in which, or under the law of which, that award was made. No such
    court order has been made  the application judge dismissed the respondents
    motion for a stay, and the respondents have not cross-appealed from that order.

[87]

Moreover,
    as the respondents conceded in their factum, [t]he Beth Din's stay order does
    not tell the courts how to behave  the Beth Din has its own religious
    enforcement procedures, e.g., a contempt order called a sirov. The award got
    stayed for purposes of Torah law.

VIII.

DISPOSITION

[88]

For
    the reasons set out above, I would allow the appeal, set aside the order of the
    application judge, and substitute an order recognizing and enforcing the Award.

[89]

In
    accordance with the agreement of the parties, the appellants are entitled to
    their costs of the appeal fixed in the amount of $25,000, inclusive of
    disbursements and applicable taxes. As well, the appellants are entitled to
    their costs of the proceeding before the application judge, fixed in the amount
    of $15,000, inclusive of disbursements and all applicable taxes.

Released: DD      Jul 12 2018

David Brown J.A.
Doherty J.A.
I.V.B. Nordheimer J.A.

APPENDIX A

THE MODEL LAW

Article 32. Termination of proceedings

(1) The arbitral proceedings are
    terminated by the final award or by an order of the arbitral tribunal in
    accordance with paragraph (2) of this article.

(2) The arbitral tribunal shall
    issue an order for the termination of the arbitral proceedings when:

(a) the
    claimant withdraws his claim, unless the respondent objects thereto and the
    arbitral tribunal recognizes a legitimate interest on his part in obtaining a
    final settlement of the dispute;

(b) the
    parties agree on the termination of the proceedings;

(c) the
    arbitral tribunal finds that the continuation of the proceedings has for any
    other reason become unnecessary or impossible.

(3) The mandate of the arbitral
    tribunal terminates with the termination of the arbitral proceedings, subject
    to the provisions of articles 33 and 34(4).

Article 33. Correction and interpretation of award;
    additional award

(1) Within thirty days of receipt
    of the award, unless another period of time has been agreed upon by the
    parties:

(a) a
    party, with notice to the other party, may request the arbitral tribunal to
    correct in the award any errors in computation, any clerical or typographical
    errors or any errors of similar nature;

(b) if so
    agreed by the parties, a party, with notice to the other party, may request the
    arbitral tribunal to give an interpretation of a specific point or part of the
    award.

If the arbitral tribunal considers the request
    to be justified, it shall make the correction or give the interpretation within
    thirty days of receipt of the request. The interpretation shall form part of
    the award.

(2) The arbitral tribunal may
    correct any error of the type referred to in paragraph (1)(a) of this article
    on its own initiative within thirty days of the date of the award.

(3) Unless otherwise agreed by the
    parties, a party, with notice to the other party, may request, within thirty
    days of receipt of the award, the arbitral tribunal to make an additional award
    as to claims presented in the arbitral proceedings but omitted from the award.
    If the arbitral tribunal considers the request to be justified, it shall make
    the additional award within sixty days.

(4) The arbitral tribunal may
    extend, if necessary, the period of time within which it shall make a
    correction, interpretation or an additional award under paragraph (1) or (3) of
    this article.

(5) The provisions of article 31
    shall apply to a correction or interpretation of the award or to an additional
    award.

CHAPTER VII.
RECOURSE AGAINST AWARD

Article
    34. Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an
    arbitral award may be made only by an application for setting aside in
    accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set
    aside by the court specified in article 6 only if:

(a) the party
    making the application furnishes proof that:

(i) a party to the arbitration agreement referred to in
    article 7 was under some incapacity; or the said agreement is not valid under
    the law to which the parties have subjected it or, failing any indication
    thereon, under the law of this State; or

(ii) the party making the application was not given proper
    notice of the appointment of an arbitrator or of the arbitral proceedings or
    was otherwise unable to present his case; or

(iii) the award deals with a dispute not contemplated by or
    not falling within the terms of the submission to arbitration, or contains
    decisions on matters beyond the scope of the submission to arbitration,
    provided that, if the decisions on matters submitted to arbitration can be
    separated from those not so submitted, only that part of the award which
    contains decisions on matters not submitted to arbitration may be set aside; or

(iv) the composition of the arbitral tribunal or the
    arbitral procedure was not in accordance with the agreement of the parties,
    unless such agreement was in conflict with a provision of this Law from which
    the parties cannot derogate, or, failing such agreement, was not in accordance
    with this Law; or

(b) the court
    finds that:

(i) the subject-matter of the dispute is not capable of
    settlement by arbitration under the law of this State; or

(ii) the award is in conflict with the public policy of
    this State.

(3) An application for setting
    aside may not be made after three months have elapsed from the date on which
    the party making that application had received the award or, if a request had
    been made under article 33, from the date on which that request had been
    disposed of by the arbitral tribunal.

(4) The court, when asked to set
    aside an award, may, where appropriate and so requested by a party, suspend the
    setting aside proceedings for a period of time determined by it in order to
    give the arbitral tribunal an opportunity to resume the arbitral proceedings or
    to take such other action as in the arbitral tribunals opinion will eliminate
    the grounds for setting aside.

CHAPTER VIII.
RECOGNITION AND ENFORCEMENT OF AWARDS

Article
    35. Recognition and enforcement

(1) An arbitral award,
    irrespective of the country in which it was made, shall be recognized as
    binding and, upon application in writing to the competent court, shall be
    enforced subject to the provisions of this article and of article 36.

(2) The party relying on an award
    or applying for its enforcement shall supply the original award or a copy
    thereof. If the award is not made in an official language of this State, the
    court may request the party to supply a translation thereof into such language.

Article 36.
    Grounds for refusing recognition or enforcement

(1) Recognition or enforcement of an arbitral award, irrespective
    of the country in which it was made, may be refused only:

(a) at the request of the party
    against whom it is invoked, if that party furnishes to the competent court
    where recognition or enforcement is sought proof that:

(i) a party
    to the arbitration agreement referred to in article 7 was under some
    incapacity; or the said agreement is not valid under the law to which the
    parties have subjected it or, failing any indication thereon, under the law of
    the country where the award was made; or

(ii) the
    party against whom the award is invoked was not given proper notice of the
    appointment of an arbitrator or of the arbitral proceedings or was otherwise
    unable to present his case; or

(iii) the
    award deals with a dispute not contemplated by or not falling within the terms
    of the submission to arbitration, or it contains decisions on matters beyond
    the scope of the submission to arbitration, provided that, if the decisions on
    matters submitted to arbitration can be separated from those not so submitted,
    that part of the award which contains decisions on matters submitted to
    arbitration may be recognized and enforced; or

(iv) the
    composition of the arbitral tribunal or the arbitral procedure was not in
    accordance with the agreement of the parties or, failing such agreement, was
    not in accordance with the law of the country where the arbitration took place;
    or

(v) the
    award has not yet become binding on the parties or has been set aside or
    suspended by a court of the country in which, or under the law of which, that
    award was made; or

(b) if the court finds that:

(i) the
    subject-matter of the dispute is not capable of settlement by arbitration under
    the law of this State; or

(ii) the
    recognition or enforcement of the award would be contrary to the public policy
    of this State.

(2) If an application for setting aside or suspension of an award
    has been made to a court referred to in paragraph (1)(a)(v) of this article,
    the court where recognition or enforcement is sought may, if it considers it
    proper, adjourn its decision and may also, on the application of the party
    claiming recognition or enforcement of the award, order the other party to
    provide appropriate security.

[1]
Section 5(3) of the
ICAA
provides that [t]he Model Law applies to
    international commercial arbitration agreements and awards made in
    international commercial arbitrations, whether made before or after the coming
    into force of [the ICAA] (which was March 22, 2017).

[2]
Art. 35(2) states: The party relying on an award or applying for its
    enforcement shall supply the original award or a copy thereof. If the award is
    not made in an official language of this State, the court may request the party
    to supply a translation thereof into such language.


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. A.P., 2018 ONCA 642

DATE: 20180717

DOCKET: C62944

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.P.

Appellant

A.P., acting in person

Lorna Bolton, for the respondent

Ingrid Grant, duty counsel

Heard and released orally: July 12, 2018

On appeal from the conviction entered on May 30, 2016 by
    Justice Robert Wadden of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

A.P. was found guilty of sexual interference with a person under the age
    of 14 years. This was in relation to the daughter of his wifes cousin.

[2]

The complainant alleged that on one of the many occasions when she slept
    over at the appellants home, the appellant touched her vagina while she was on
    a mattress in the living room sleeping with his two young sons.

[3]

The appellant denied the allegations. His son testified in support of
    his father and denied being told about the incident the following morning as
    the victim had testified.

[4]

Ms. Grant, as duty counsel, advanced a number of grounds of appeal on
    the appellants behalf. She says that the trial judge only considered the
    complainants credibility and not also her reliability. In our view, the trial judges
    reasons as a whole demonstrate that he considered both dimensions of
    trustworthiness, and his reasons were responsive to the arguments advanced by
    defence counsel at trial. Further, we do not accept that the trial judge
    mischaracterized the evidence. The nuances in the evidence of the appellant and
    his son were dealt with adequately by the trial judge.

[5]

Ms. Grant submits that the trial judge unfairly characterized the
    appellants evidence about the mattress issue by saying that he was adamant in
    his denials. We disagree. Given the appellants answer when shown his sons
    detailed sketch of the living room which depicted the mattress, the trial judge
    was entitled to characterize the appellants evidence in this way.

[6]

Ms. Grant also suggests that the trial judge erred when he found that
    the appellant tailored his evidence on the mattress issue likely because it
    would be exculpatory. While the trial judges language was unfortunate, we are
    not satisfied that he reversed the burden of proof, especially when read in the
    context of the reasons as a whole. The trial judge accepted the evidence of the
    appellants son as reflected in the sketch that he prepared, and he clearly
    rejected the appellants claim that he could not remember. The trial judge was
    entitled to find that the appellants credibility was damaged as a result. It
    was open to the trial judge to make the credibility findings as he did.
    Accordingly, we see no basis on which to interfere.

[7]

The appeal from conviction is dismissed.

M.L. Benotto J.A.

Gary T. Trotter J.A.

David M. Paciocoo
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdulle, 2018 ONCA 643

DATE: 20180717

DOCKET: C64201

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Farah Abdulle

Appellant

Mohamed Farah Abdulle, acting in person

Concetta Zary, for the respondent

Ingrid Grant, duty counsel

Heard and released orally: July 11, 2018

On appeal from the conviction entered on November 18,
    2015 and the sentence imposed on October 31, 2016 by Justice Robert N. Beaudoin
    of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of multiple offences under the
Criminal
    Code
,
R.S.C., 1985, c. C-46, and
the
Immigration and Refugee Protection Act
, SC 2001, c 27, in
    respect of fraudulent refugee applications  170 applications in total. After
    staying some counts in order to comply with the rule against multiple
    convictions, the trial judge imposed the total sentence of 45 months
    imprisonment less credit for a modest number of days of pre-sentence custody.
    The appellant appeals his convictions and sentence.

[2]

In our view, there is no merit in the conviction appeal. The evidence
    overwhelmingly supported the trial judges findings of guilt. The trial judge
    gave careful reasons in support of his overall conclusions. He evaluated the
    evidence of each witness and made sound credibility findings. Moreover, the
    trial judge found that the appellants evidence was completely unworthy of belief
     a finding he was entitled to make. The trial judge considered all of this
    evidence within the framework of
R. v. W.(D.),
[1991] 1 S.C.R. 742
.
We
    see no error.

[3]

During the oral argument of this appeal, the appellant provided written
    submissions raising various grounds of appeal. In particular, the appellant
    suggests that there were problems with the interpretation services he received
    during his trial. On the basis of the very limited information provided to us
    on this issue, we are satisfied that the trial judge properly dealt with the
    interpretation issues as they arose. If there were other issues that troubled
    the appellant, he ought to have raised them with the trial judge at the time.
    There is no indication that any of this impacted on the fairness of the
    appellants trial during which he was represented by counsel throughout. We see
    no merit in these or any of the other grounds of appeal raised by the appellant
    in his written materials or in oral argument.

[4]

The appeal against conviction is dismissed.

[5]

The appellant also seeks leave to appeal his sentence. He argues that it
    was too harsh and failed to give effect to the mitigating features present in
    his case. Again, we disagree. There were many serious aggravating factors in
    this case including:

i.

the number of fraudulent applications;

ii.

the multiple breaches of trust committed by the appellant; and

iii.

the appellants motives of financial gain and enhancing his standing in
    his community.

A sentence
    emphasizing general deterrence and denunciation was required to address these
    aggravating factors and to restore faith in the integrity of Canadas
    immigration system.
The sentence imposed falls within the
    appropriate range for this type and pattern of offending.

[6]

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

M.L. Benotto J.A.

Gary T. Trotter J.A.

David M. Paciocoo
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clairoux, 2018 ONCA 629

DATE: 20180711

DOCKET: C56809

Doherty, MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Clairoux

Appellant

Diane Condo, for the appellant

Sandy Thomas, for the respondent

Heard: July 4, 2018

On appeal from the conviction entered by Justice Jacqueline
    Loignon, of the Ontario Court of Justice, on February 27, 2013.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for possession of cannabis resin, a
    Schedule II substance, for the purpose of trafficking.

[2]

The charges against the appellant came about as part of a broad
    investigation into drug trafficking, money laundering, intimidation and debt
    collection associated with the Hells Angels and a group of individuals called
    Order, Respect and Loyalty (ORL). During the course of that investigation,
    the police obtained two authorizations to intercept communications of the
    appellant and others as well as a number of search warrants including for the appellants
    residence and a clubhouse he frequented.

[3]

When the police executed the search warrants on the appellants
    premises, they seized two digital scales, ziplock bags with particles of marijuana,
    a hash press, various containers with packaged marijuana and cannabis leaves,
    652 grams of tetrahydrocannabinol, 958.4 grams of cannabis resin and 795.6
    grams of cannabis marijuana.

[4]

The appellant was charged with possession of the drugs for the purpose
    of trafficking, along with conspiracy to traffic, various criminal organization
    offences, and possession of the proceeds of crime. He was only convicted of
    possession of cannabis resin for the purpose of trafficking. The appellant was
    acquitted on the charge related to the 795.6 grams of cannabis marijuana, as he
    possessed a medical certificate permitting him to possess 1100 grams of
    marijuana.
[1]

[5]

At trial, the appellant challenged the sufficiency of the grounds for
    the two authorizations as well as the search warrants. He also alleged that the
    justice of the peace who issued the two search warrants was biased as there had
    been an indirect familial link and some resulting social contact between the
    justice of the peace and the appellant. There had, however, been no contact for
    a number of years.

[6]

The trial judge rejected the challenges to the sufficiency of the
    grounds for the authorization and the warrants, but accepted that the
    relationship between the appellant and the issuing justice gave rise to a
    reasonable apprehension of bias. After carrying out a s. 24(2) analysis, the
    trial judge determined that the drugs and other items seized would nonetheless
    be admitted.

[7]

The appellant restricts his appeal to the validity of the two search
    warrants, the trial judges s. 24(2) analysis and the trial judges finding that
    the cannabis resin was possessed for the purpose of trafficking.

The validity of the search warrant

[8]

The appellant argues that the trial judge erred in finding that the
    search warrant for the appellants residence was validly issued. He argues that
    the Information To Obtain (ITO) did not contain any information to suggest that
    drugs or the other objects listed on the ITO could be found at the appellants
    residence and that the affiant misled the issuing justice by stating in the ITO
    that the appellant was directly involved in the large-scale trafficking of
    controlled substances. As conceded by the police affiant, they had never
    observed the appellant actually trafficking a controlled substance or being
    engaged in a drug deal.

[9]

We reject this submission, which was considered and rejected by the
    trial judge. She explained that, read in the context of the remainder of the
    67-page ITO, it would have been apparent to the issuing justice that the
    appellants involvement was as a co-conspirator in the scheme to traffic drugs.
    The evidence contained in the ITO included the fact that the appellant had received
    a large sum of money from a target of the investigation and attended the stash
    house. The wiretaps also provided evidence that the accused had arranged drug
    buys and was involved with payments and debts. In our view, the trial judges
    finding is reasonable and we see no basis to interfere. It is to be recalled
    that an ITO must be read as a whole and words and phrases are not to be improperly
    parsed and read in isolation.

[10]

We
    also reject the appellants submission that the ITO did not contain any
    information to suggest that evidence of the conspiracy would be found in the
    appellants home. While there may have been insufficient grounds to believe
    that narcotics would be found, the ITO made it clear that the appellant was
    alleged to be part of a conspiracy to commit an indictable offence, namely,
    trafficking in controlled substances. His involvement was such that electronic
    messages, ledgers of drug debts or other evidence relevant to the existence of
    a criminal organization might be found.

The s. 24(2) analysis

[11]

The
    appellant argues that in her s. 24(2) analysis the trial judge understated the
    seriousness of the
Charter
-infringing state conduct. The appellant
    repeats his submission that the ITO lacked the foundation for the issuance of
    the warrant, and adds that the trial judge failed to acknowledge the seriousness
    of the appearance of bias on the part of the issuing justice. Had she given the
    appropriate weight to these factors, she would, at the balancing stage, have
    concluded that the seized drugs and other items ought to be excluded.

[12]

We
    disagree. The search warrant was set aside because of a reasonable apprehension
    of bias on the part of the issuing justice. There was no evidence to suggest
    that the police had any knowledge of a familial or other connection between
    that justice of the peace and the appellant. Further, as we have explained, we
    do not agree with the appellants submission that the ITO contained
    misstatements by the police affiant or that there was an inadequate basis for the
    issuance of the warrant. The police acted properly and in good faith throughout,
    which favours the inclusion of the evidence.

[13]

The
    s. 24(2) analysis begins from the premise that the
Charter
breach at
    issue has already done harm to the administration of justice. The appearance of
    bias on the part of the issuing justice led to the finding that the warrant was
    invalid, and the search was therefore deemed warrantless. In considering
    whether the improperly obtained evidence should nonetheless be admitted under
    s. 24(2), the question is whether the admission of the evidence will do further
    damage:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 69-70.

[14]

In
    our view, the admission of the evidence on the specific facts of this case
    would not do further harm to the administration of justice than has already
    been done. There was no basis to suggest that the issuance of the search
    warrant by the justice of the peace was made in bad faith or as the result of
    actual bias. In fact, as noted earlier, there were ample grounds for the
    issuance of the warrants. As found by the trial judge, the concern was the
    public perception that, in light of the relationship, there would be a
    reasonable apprehension of bias. A reasonable person informed of these
    circumstances, having regard to the good faith conduct of the police, the seriousness
    of the charges, the reliability of the evidence and its critical role in the
    Crowns case, would not find that the repute of the justice system would
    require the evidence to be excluded. We agree with the trial judge that, to the
    contrary, in these circumstances, the exclusion of the evidence could undermine
    public confidence in the justice system. The trial judges discretionary
    decision, in balancing all of these factors, is entitled to deference:
R. v.
    Bennett
, 2017 ONCA 780, [2017] O.J. No. 5264, at para. 64.

Possession for the purpose of trafficking

[15]

We
    also reject the appellants submission that the appellant was allowed to
    possess cannabis resin pursuant to his medical marijuana licence and that the
    trial judge erred in finding that the possession of the resin was for the
    purpose of trafficking.

[16]

The
    trial judge rejected the appellants explanation for his possession of the
    cannabis resin as well as his explanation for being in possession of a hash
    press. Further, the appellants medical marijuana certificate does not provide
    for possession of cannabis resin and there was no evidence at trial that the
    resin was possessed for medical purposes. The trial judges finding that the
    appellants possession was illegal is entitled to deference.

[17]

As
    for the finding that possession was for the purpose of trafficking, the nature
    and quantity of the drugs and other materials seized from the appellants
    residence amply supports the trial judges inference of possession for the
    purpose of trafficking. Significantly, this finding made the fact that the appellant
    was holder of a medical marijuana certificate irrelevant.
R. v. Smith
,
    2015 SCC 34, [2015] 2 S.C.R. 602, on which the appellant relies, therefore has
    no application.

[18]

As
    a result, we dismiss the appeal.

Doherty J.A.

J.C. MacPherson J.A.

Paul Rouleau J.A.

[1]

The record indicates that the appellants certificate in fact allowed
    for the possession of 1125 grams of marijuana.