CITATION:
Issasi v. Rosenzweig, 2011
          ONCA 250

DATE: 20110401

DOCKET: M39748-M39887-M39890-C52822

COURT OF APPEAL
          FOR ONTARIO

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

BETWEEN:

Amparo Marlen Rodriguez Issasi

Applicant (Respondent on Appeal)

and

Kenneth Espinal Rosenzweig

Respondent (Appellant on Appeal)

Jeffery Wilson, for the moving party, Rosenzweig (M39748)

Martha Mackinnon and Niamh Harraher, for the moving party,
          Justice for Children and Youth (M39887)

Urszula Kaczmarczyk and Jocelyn Espejo-Clark, for the moving
          party, Attorney General for Canada (M39890)

Philip Epstein, Q.C. and Aaron Franks, for the respondent,
          Issasi (M39748-M39887-M39890)

Sean Hanley, for the intervener, Attorney General for
          Ontario

Heard and released orally:
March 30, 2011

ENDORSEMENT

[1]

We grant the order sought directing the Office of the
    Childrens Lawyers (OCL) to represent the child on appeal.  This appeal must proceed on April 12 and 13,
    2011.  We consider it in the best
    interests of the child and the family involved that the issues raised by the
    appeal be decided as soon as possible.  We have been assured by counsel, including counsel for the OCL, that they
    will not seek an adjournment of the appeal scheduled for April 12
th
.

[2]

It is a term of the order permitting the OCL to
    participate in the appeal that if it seeks leave to file fresh evidence, it
    shall serve and file its material no later than Tuesday, April 5
th
.  Counsel for the two parties to the appeal
    have indicated that they intend to seek leave to file fresh evidence.  If they do so, the father shall serve and
    file his material no later than April 5
th
and the mother no later
    than April 8
th
.

[3]

We order the mother/respondent to permit the OCL
    reasonable access to the child in person, by telephone, by email or other means
    of communication as may be requested by the OCL.

[4]

We direct that the OCL shall have up to 20 pages for
    its factum and up to 20 minutes for oral argument.

[5]

There will be five hours allotted for argument of the
    appeal.  As we calculate it, the
    interveners and OCL will use between an hour and 20 minutes and an hour and 30
    minutes.  We would ask that the parties
    to the appeal agree upon the use of the remaining time.

[6]

The OCL shall file its factum on or before April 5
th
.

D. OConnor A.C.J.O.

John I. Laskin J.A.

J.C. MacPherson J.A.


CITATION:
Issasi
v. Rosenzweig, 2011 ONCA 302

DATE: 20110418

DOCKET: C52822

COURT OF APPEAL FOR ONTARIO

Cronk, Gillese and MacFarland JJ.A.

BETWEEN

Amparo Marlen Rodriguez Issasi

Applicant (Respondent on Appeal)

and

Kenneth Espinal Rosenzweig

Respondent (Appellant on Appeal)

Jeffery Wilson and Chelsea Hooper, for the respondent (appellant
          on appeal)

Philip M.
          Epstein Q.C., Aaron M. Franks, Daniella Wald and Michael Zalev, for the applicant
          (respondent on appeal)

Lucy McSweeney,
          Katherine Kavassalis and Caterina E. Tempesta, for the Office of the
          Childrens Lawyer

Urszula Kaczmarczyk and Jocelyn Espejo Clarke, for the
          Attorney General of Canada

Sean Hanley, for the Attorney General of Ontario

Angus Grant, for the intervener, Canadian Council for Refugees

Lorne Waldman, for the intervener, the United Nations High
          Commissioner for Refugees

Jacqueline Swaisland, for the intervener, the Canadian Civil
          Liberties Association

Heard:  April 12 and 13,
          2011

On appeal from the order of Justice
          George Czutrin of the Superior Court of Justice, dated September 21, 2010.

BY THE COURT:

[1]

By order dated September 21, 2010 (the Order), Josette
    Rosenzweig Issasi was found to be wrongfully retained in Ontario and ordered to
    be returned to Mexico, pursuant to the
Hague
    Convention on the Civil Aspects of International Child Abduction (Hague
    Convention)
.  The
Hague Convention
application was brought
    by Josettes mother.

[2]

At the time the Order was made, Josette was 13 years
    old.  She had been living in Toronto, Ontario
    for approximately 21 months, during which she had made a claim for refugee
    protection by reason of abuse by her mother.  She was found to be a Convention Refugee by the Immigration and Refugee
    Board of Canada, Refugee Protection Division, on April 27, 2010.

[3]

Josette was taken back to Mexico on October 15, 2010.

[4]

Her father appeals the Order.  Because of the international and human rights aspects of this appeal,
    many others have participated, as parties or interveners.

[5]

The human dimensions of this appeal make its resolution
    urgent.  The legal complexities demand
    otherwise.  In the result, we have decided
    to release our decision, with only the briefest of reasons, at this time.  Full reasons for judgment that address the
    many difficult legal issues that have been raised will follow.

THE QUESTION

[6]

The ultimate question that must be resolved on appeal
    can be simply stated: did the motion judge err in ordering that Josette be
    returned to Mexico?

THE ANSWER

[7]

Yes.

[8]

The short reason for arriving at this answer is as
    follows.  In our view, there is no
    conflict between s. 46 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12

(
Hague Convention)
and s. 115 of the
Immigration and Refugee Protection Act
,
    S.C. 2001,
c
. 27.  Properly interpreted, harmonious effect can be given to both.

[9]

In applying the
Hague
    Convention,
the family court must conduct an appropriate risk assessment
    regarding the return of a child who has been found to be a refugee.  As we will explain in the reasons that will
    be subsequently provided, no meaningful risk assessment was or could have been
    undertaken in the circumstances of this case at the time the motion was
    heard.   As a result, the Order cannot
    stand; this court stands in the shoes of the motion judge.

[10]

While the record before this court is much more extensive than
    that which was before the motion judge, in our view, the risk assessment cannot
    be done without
viva voce
evidence.  Consequently, a new hearing must be
    conducted.

RELIEF

[11]

Accordingly, we would allow the appeal, set aside the Order,
    and direct that a new
Hague Convention
hearing be undertaken.  The parties have
    attorned to this courts jurisdiction.  We therefore direct the parties to do everything within their power to
    co-operate and facilitate Josettes return to Ontario to participate in the new
    hearing.

[12]

We recognize that this leaves open the question of the care
    and supervision of Josette if she is returned to Ontario before the new
Hague Convention
hearing can be
    convened.  We also recognize that there
    are uncertainties at present regarding those steps necessary to
effect
Josettes return to Ontario.  If necessary, the issue of Josettes care and
    supervision pending the determination of the new
Hague Convention
hearing shall be left to the discretion of the
    Office of the Childrens Lawyer, in consultation with the appellant, the
    respondent, and those of the other parties as may be advisable.

[13]

For the sake of clarity and to ensure that there is no
    misunderstanding, we advise that additional relief and directions regarding the
    new hearing may be ordered when our full reasons for decision are released.

RELEASED:

APR 18 2011                                             E.A.
    Cronk J.A.

EAC                                                            E.E.
    Gillese J.A.

J.
    MacFarland J.A.


CITATION:
Jagosky
v. Huntsville (Town), 2011
          ONCA 324

DATE:  20110426

DOCKET: C52678

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Lang and Karakatsanis JJ.A.

BETWEEN

Robert Orland
Jagosky
and
          Arlene
Jagosky

Plaintiffs (Appellants)

and

Corporation of the Town of Huntsville

Defendant (Respondent)

Robert A. Calder, for the plaintiffs/appellants

Andrew J. Heal and Todd Robinson, for the respondent
          Corporation of the Town of Huntsville

Heard and released orally: April 18, 2011

On appeal from the judgment of Justice Elizabeth Quinlan, of
          the Superior Court of Justice, dated August 20, 2010.

ENDORSEMENT

[1]

We do not accept the appellants
    submission that the motion judges factual finding as to the date of
    discoverability was unreasonable. The motion judge found that the appellants
    were aware or ought to have been aware of the proposed new basis for a cause of
    action in January 2004 based on the evidence including the Soil-Eng Report and
    the appellant Robert
Jagoskys
letter to the
    respondent dated February 1, 2004.

[2]

The Soil-Eng Report clearly identified
    that the revealed soils are not suitable for supporting foundations and do not
    provide frost protection for the existing foundation.  In the subsequent letter, Mr.
Jagosky
noted that the Report represented valuable
    background information as to the cause of damage inflicted upon the building
    by the town.  He concluded with the
    reference to the towns responsibility for the inspection of footings and for
    building permits.

[3]

In our view, the cross-examination of Robert
Jagosky
does not undermine the evidence of the Soil-Eng
    Report or of his letter. There was ample evidence to support the motion judges
    factual finding. This ground of appeal fails.

[4]

The appellants further submit that there
    was no prejudice to the town. We disagree. We agree with the motion judge that
    the demolition of the premises actually prejudiced the town. There is no
    evidence in the record that the foundations are still available for testing as
    submitted by the appellants. Further, we are not prepared to accede to the
    submission that the only investigation required in order to prepare a defence
    to this claim would be based upon the paper records. We reject this ground of
    appeal.

[5]

Finally, we reject the submission that
    this was not a new claim. The amendments sought were clearly based upon
    different events at a different point in time. We agree with the motion judge
    that the amendment sought constitutes a fundamentally different claim.

[6]

In conclusion, we agree with the result
    and with the analysis of the motion judge.

[7]

The appeal is dismissed.

Winkler
    C.J.O.

S.E.
    Lang J.A.

Karakatsanis
    J.A.


CITATION:
Lumme
v.
Eagle
Point L.L.C., 2011 ONCA 291

DATE: 20110413

DOCKET: C52803

COURT OF APPEAL FOR ONTARIO

Cronk, MacFarland and Rouleau JJ.A.

BETWEEN

Mark Lumme

Applicant/Appellant

and

Eagle
          Point L.L.C.

Respondent/ Respondent on Appeal

Libero C. Paci, for the applicant/appellant

J. Paul R. Cassan, for the respondent

Heard and released orally:  March 30, 2011

On appeal from the judgment of Justice W.L. Whalen of the
          Superior Court of Justice, dated September 10, 2010.

ENDORSEMENT

[1]

The appeal is dismissed.

[2]

It is clear from his Notice of Application that among
    the relief sought by the appellant was a declaration that he continues to be
    the absolute owner of the lands described in PIN 31451-0072.  His argument that the application judge did
    not have jurisdiction to decide the issue of ownership because there was no
    request to the judge to make a determination of ownership is without
    merit.

[3]

As the Deputy Director of Titles noted in his reasons,
    he was

not entitled to decide whether or not Mr. Lumme
    has acquired any interest in lands that are part of Lot 1, Concession 2,
    Registered Plan 8 Cuthberston Location as a result of any acts of possession he
    made in reliance on the Miller survey

[4]

And the Divisional Court
affirmed,
that in confirming the true location of the boundary on the ground, the Deputy
    Directors finding was not a grant of ownership or possession.

[5]

That said
,
there was ample
    evidence before the application judge for him to make the determination he did.
    The transfers by
which
the appellant acquired title
    only ever purported to convey part of Lot 4, Concession 2. No part of Lot 1 was
    ever part of any conveyance to the appellant and his title is limited
    accordingly. The Reference Plan relied on by the appellant does not convey any
    interest in property. It is a reference plan and only that.  Section 53(42) of the
Planning Act
does not alter this result.

[6]

If the appellant was purporting to make a claim of
    ownership to the disputed parcel of land based on possession, the time to do it
    was before the application judge.  On the
    evidence it is clear that the Miller survey was in error and the evidence of
    Surveyor Bolan to that effect was uncontradicted. The
Land Titles Act
only guarantees the quality of ones title, not the
    extent of it.  On the documentary
    evidence, including the deeds, transfers, abstracts and boundary decision, it
    is clear that the appellant had no interest in any part of Lot 1.

[7]

The effect of the decision made by the Deputy Director
    of Titles is to correct the location of the boundary which divides Lots 1 and 4
    from what is depicted on the Miller survey, which was an error.

[8]

The conveyance to the appellant only ever purported to
    convey part of Lot 4.  However, because the
    description contained in the deed was based on the erroneous Miller survey it described,
    in part, lands located on Lot 1. Such lands were never owned by the appellants
    predecessor in title and could not be transferred to him by deed.  Absent any claim to title by possession or
    use, the application judges determination of ownership was inevitable. It does
    not appear that any claim to some entitlement to title based on possession was
    ever part of the appellants case and, in any event, the affidavit of Ken
    Richmond sworn September 2, 2010 disproves any such entitlement.

[9]

We see no error in the decision of the application judge
    and the appeal is dismissed.

[10]

The respondent is entitled to its costs of the appeal,
    fixed in the sum of $5000.00, inclusive of disbursements and applicable taxes.

E.A. Cronk J.A.

J.
    MacFarland J.A.

Paul
    Rouleau J.A.


CITATION:
Marks v. Ottawa (City), 2011 ONCA 248

DATE: 20110401

DOCKET: C51745

COURT OF APPEAL FOR ONTARIO

Feldman, Juriansz and LaForme JJ.A.

BETWEEN

Bruce D.
          Marks, Irina Marks and Julia Marks, by her
          litigation guardian, Bruce D. Marks

Appellants

and

The City of
          Ottawa, Justin Maheux and Jennifer
          Natividad and Derek Petch

Respondents

Richard Marks,
          for the appellants

Pierre Champagne, for the respondents City of Ottawa and Derek Petch

No one appearing for the respondents Justin Maheux and
          Jennifer Natividad
[1]

Heard: November 8, 2010

On appeal from the order of Justice Denis J. Power of the
          Superior Court of Justice dated January 28, 2010, with reasons reported at 2010
          ONSC 112.

H.S. LaForme J.A.:

OVERVIEW

[1]

This case involves disgruntled neighbours in the
    City of

Ottawa.  It began with a request for access to a
    neighbours property, which resulted in legal proceedings, intervention by the
    City of Ottawa, and the commencement of litigation.

[2]

The appellants, Mr. and Ms. Marks (and their
    daughter Julia, who was born in the midst of the circumstances at issue), were
    next door neighbours of the respondents Justin Maheux and Jennifer Natividad.
    They respectively occupied the premises at 296 and
300
    Royal Avenue.  The by-laws in question are the right-of-entry
    by-law and the fencing by-law of the respondent City of Ottawa.  The
    respondent Derek Petch at all relevant times was a by-law officer employed by
    the
city.

[3]

This appeal focuses on the litigation process
    and procedures.  Basically, the Marks
    sought leave to amend their original statement of claim pursuant to rules 26.01,
    26.02(c), 37.02(2), 77.12(1), 77.12(2)(a) and 77.12(4) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.  The motion judge denied leave to amend in some but not all respects and
    the Marks appeal.

BACKGROUND

[4]

Because this appeal involves pleadings, I will
    set out the background as I understand it based on a combination of the
    assertions of the parties, the pleadings and proposed amendments, and the
    judgment below.  Early in 2007 Ms.
    Natividad and Mr. Maheux sought permission to enter on the Marks land in order
    to waterproof a portion of their basement wall.  Permission was granted subject to certain conditions, such as the
    acquisition of insurance and scheduling acceptable to the Marks.

[5]

Ms. Natividad and Mr. Maheux refused to agree to
    the conditions and instead applied for a right-of-entry permit from the City of
    Ottawa pursuant to a recent by-law.  Derek Petch became responsible for arranging the entry permit and
    approached the Marks to advise them of his involvement.  They advised Mr. Petch of their concerns, and
    he agreed that he would bring these issues to the attention of the appropriate
    city officials.

[6]

On Thursday May 24, 2007 the permit was issued,
    and early in the morning on the following Monday, workers hired by Ms.
    Natividad and Mr. Maheux removed the fence separating the properties and began
    excavating.  The police were called and
    they, along with Mr. Petch, attended and Mr. Petch explained to the police that
    Ms. Natividad and Mr. Maheux had a valid permit.

[7]

The Marks contest the permits validity on the
    basis that the by-law requires at least one days clear notice to the
    subservient owner before entry can be made.  They allege Mr. Petch did not advise them he had issued the permit until
    late Friday afternoon.  They say Mr.
    Petch did not tell the police that proper notice under the by-law had not been
    given for the entry.

[8]

On May 28, 2007, the Marks obtained an
ex parte
injunction enjoining Ms.
    Natividad and Mr. Maheux from encroaching onto the Marks property.

[9]

In early June 2007, Mr. Petch attended the
    Marks property and conducted an investigation with the intent to prosecute the
    Marks for by-law infringement based on the existing fence.  Apparently, a previous complaint about the
    fence had been made to the City in connection with a fence on the Marks
    property.  The previous complaint, it
    seems, resulted in a resolution that no further prosecution should be made
    unless the City received a new complaint.  The Marks allege that Mr. Petch knew that no new complaint had been
    made.

[10]

After the investigation, a City solicitor wrote
    to Mr. Petch advising him that he should prosecute the Marks for a breach of
    the city's fencing by-law.  That
    prosecution was dismissed at the end of the City's case on a non-suit
    motion.  The structures in question were
    found not to meet the definition of "fence" set out in the by-law.

[11]

On June 6, 2007  being the return of the
ex parte
injunction motion  a new
    survey of the boundary demonstrated that the work intended would result in a
    permanent encroachment on the Marks land.  Nevertheless, the injunction was lifted so as to allow the performance
    of work pursuant to the permit, subject to a written undertaking that the work
    would not encroach on the Marks property.  T
he work was completed
    on June 25, 2007.

[12]

In December of 2007, Mr. and Ms. Marks commenced
    proceedings  seeking: (i) $250,000 for
    trespass, nuisance and punitive damages against Ms. Natividad and Mr. Maheux;
    (ii) $350,000 from the City of Ottawa and Mr. Petch for breach of fiduciary
    duty, negligence and punitive damages; (iii) $300,000 from Mr. Petch alone for
    misfeasance in public office, negligent misrepresentation and punitive damages;
    and, (iv) general damages from all defendants in the amount of $100,000
    alongside a series of declarations.

[13]

On August 21, 2009, the Marks served a notice of
    motion seeking leave to amend their statement of claim.  Besides some changes made to the amounts of
    damages sought, the following claims were added to the initial claims made
    jointly against the City of Ottawa and Mr. Petch for breach of fiduciary duty
    and negligence:

·

misfeasance in public office;

·

negligent misrepresentation;

·

intentional causation of mental suffering and
    distress;

·

malicious
prosecution, or in the alternative negligent investigation and prosecution, or
    in the further alternative counselling malicious prosecution, or in the further
    alternative negligent counselling of prosecution.

[14]

The Marks did not seek to rely on any additional
    or new facts to support the additional claims they sought to add, other than in
    respect of malicious or negligent prosecution or counselling of prosecution.  After noting that the parties were in
    disagreement with respect to the applicable law and reviewing extensively the
    applicable rules and relevant case law, the motion judge concluded at para. 36 that:

Notwithstanding that the general rule is that amendments are
    presumptively approved, there is no absolute right to amend pleadings.  The court has a residual right to deny
    amendments where appropriate.

[15]

The
    motion judge denied the Marks leave to amend their statement of claim in some
    but not all respects, and they appeal from that decision.

ISSUES

[16]

The Marks argue that the motion judge erred in concluding
    that: (i) there was no possible cause of action for negligent misrepresentation
    or breach of fiduciary duty against a municipality or its by-law officer; and
    (ii) parts of the proposed amendments amounted to a collateral attack on an
    earlier judgment denying the appellants an injunction.  The issues on appeal can, therefore, be
    described in the following questions:

1.

Did the motion judge err in concluding that
    there was no possible cause of action for negligent misrepresentation?

2.

Did the motion judge err in concluding that
    neither a municipal corporation, nor its by-law officers administering
    municipal by-laws could be acting in a fiduciary relationship with a member of
    the public?

3.

Did the motion judge err in concluding that the
    amended statement of claim represented a collateral attack on the order of Ray
    J.?

[17]

In respect of questions one and two, I would
    dismiss the appeal on these grounds.  I
    believe that the motion judge did not err in either of these decisions and his
    reasoning was sound.  The third question,
    however, is a different matter.  I
    conclude the motion judge erred on this issue, and in this limited respect, the
    appeal should be allowed.

DISCUSSION

[18]

Rule 26.01 provides that:

On motion at any stage of an action the court shall grant leave
    to amend a pleading on such terms as are just, unless prejudice would result
    that could not be compensated for by costs or an adjournment.

[19]

Although the general rule is that amendments are
    presumptively approved, there is no absolute right to amend pleadings.
    The court has a residual right to deny amendments where appropriate:
Daniele v. Johnson
(1999), 45 O.R. (3d)
    498 (Div. Ct.) at paras. 11 -15.
[2]
Further, I would agree that the proper
    factors to be considered are those first set out in
Simrod v. Cooper
, [1952] O.W.N. 720 (H.C.J. Master) at p. 721,
    affd at p. 723 (H.C.J.), and quoted with approval in
Vaiman v. Yates
(1987), 60 O.R. (2d) 696 (H.C.J.) at p. 698, which can be summarized as follows:

·

An amendment should be allowed unless it would
    cause an injustice not compensable in costs.

·

The proposed amendment must be shown to be an
    issue worthy of trial and prima facie meritorious.

·

No amendment should be allowed which, if
    originally pleaded, would have been struck.

·

The proposed amendment must contain sufficient
    particulars.

[20]

There is no question that the motion judge was
    aware of the proper test.  The Marks
    complaint is that he misapplied it.  I
    agree, but as I have noted, only in respect of issue three.

Issue 1: Did the motion judge err in concluding that there was no possible
    cause of action for negligent misrepresentation?

[21]

As the motion judge correctly recognized, the
    Supreme Court of Canada in
Queen v.
    Cognos Inc.
, [1993] 1 S.C.R. 87 at p. 110 confirmed that there are five
    general  elements to the tort of
    negligent misrepresentation:

1.

There must be a duty of care based on a special
    relationship between the representor and the representee;

2.

The representation in question must be untrue,
    inaccurate, or misleading;

3.

The representor must have acted negligently in
    making said representation;

4.

The representee must have relied, in a
    reasonable manner, on said negligent misrepresentation;

5.

The reliance must have been detrimental to the
    representee in the sense that damages resulted.

[22]

While the motion judge  relying on
Edmundston (City) v. Maison du Parc Ltée
(1999),
    217 N.B.R. (2d) 291 (Q.B.)  accepted that a municipality can be held liable
    for negligent misrepresentation, he concluded at para. 70 that the plaintiffs
    have failed to plead a minimum level of material facts with respect to this
    alleged tort.  He noted at para. 71
    that:

[T]here is no special relationship between any of the
    plaintiffs and the defendants.  There is
    no suggestion in the pleadings that any of the plaintiffs relied on any such
    negligent misrepresentations nor is there anything pleaded alleging that the
    reliance was detrimental to the plaintiffs in the sense that damages resulted.

[23]

The motion judge thus held that [i]n the
    circumstances, the pleadings with respect to this tort should be struck.

[24]

The Marks argue that the elements of negligent
    misrepresentation were present in their pleadings.  They note that they did allege a
    misrepresentation, as they indicated that Mr. Petch misrepresented to the
    Ottawa Police the circumstances governing the right-of-entry permit.  They go on to say that the police relied on
    this misrepresentation as is evident from their decision to abandon their
    investigation.  And finally, they argue
    that this reliance was detrimental to the Marks because it permitted Ms.
    Natividad and Mr. Maheux to continue with their trespass and excavation.

[25]

Further, the Marks argue that the statement of
    claim does contain factual allegations which could support a finding that there
    is a special relationship between them and the City of Ottawa.  And, while they acknowledge that these
    factual allegations may not strictly satisfy the elements of negligent
    misrepresentation, they say that to deny their motion on this basis is to
    improperly bar them from making a novel argument
.

[26]

Finally, the Marks also suggest that the motion
    judges decision applies to both the allegations of negligent misrepresentation
    in the proposed amended statement of claim as well as in the original statement
    of claim.  If this is correct, they
    submit that he lacked jurisdiction to strike anything contained in the original
    statement of claim.

[27]

I agree that there should be some scope for a
    plaintiff to bring a novel claim or argue for the creation of a new tort.  In this case, however, the facts alleged fall
    so far outside of what has been established as negligent misrepresentation that
    I agree that there is no realistic prospect that the action will succeed.

[28]

As the respondents correctly note, the alleged
    misrepresentation was neither made to the Marks, nor did they rely on any such
    misrepresentation to their detriment  both necessary requirements.  Indeed, in para. 12 of their statement of
    claim the Marks specifically plead that the representation alleged was not made
    to them.  Accordingly, they could not
    have relied upon it.

[29]

The motion judge was correct to strike the
    amended pleadings in respect of negligent misrepresentation against either the
    City of Ottawa or Derek Petch.  As the
    motion judge found, the minimum level of material facts necessary to support a
    claim for negligent misrepresentation was not pleaded and this cause of action
    cannot succeed.

[30]

Finally, at para. 65 of his reasons the motion
    judge clearly indicated that his decision applied only to the claims of
    negligent misrepresentation found in the proposed amended statement of
    claim.  This ground of appeal must be
    dismissed.

Issue 2: Did the motion judge err in concluding that neither a municipal
    corporation, nor its by-law officers administering municipal by-laws could be
    acting in a fiduciary relationship with a member of the public?

[31]

The motion judge set out at para. 39 that
    according to the Supreme Court of Canada in
Frame v. Smith
, [1987] 2
    S.C.R. 99 at p. 136, a fiduciary relationship typically has three general
    characteristics: (i) the fiduciary has scope for the exercise of some
    discretion or power; (ii) the fiduciary can unilaterally exercise that power or
    discretion so as to affect the beneficiary's legal or practical interests; and
    (iii) the beneficiary is peculiarly vulnerable to or at the mercy of the
    fiduciary holding the discretion or power.

[32]

Citing
Windsor
    Roman Catholic Separate School Board v. Windsor (City)
(1988), 64 O.R. (2d)
    241 (C.A.),
McLaren v. Stratford (City)
(2004), [2004] 50 C.P.C. (5th) 310 (Ont. S.C.), and
Little
v. Ottawa (City)
(2004), 49 M.P.L.R. (3d) 115 (Ont. S.C.), the
    motion judge concluded at para. 42 that, it has been long held that a
    municipality does not owe a fiduciary duty to its citizens.

[33]

He distinguished the Marks argument that
Hill v. Hamilton-Wentworth Regional Police
    Services Board
, [2007] 3 S.C.R. 129 is analogous to this case as it is
    concerned with the duties and liabilities of police officers.  He noted that McLachlin C.J. expressly
    restricted the applicability of the decision to the relationship between a
    police officer and the particularized subject of an investigation.

[34]

The motion judge ultimately denied leave to
    amend the statement of claim because the cause of action is untenable.

[35]

The Marks argue that the motion judge failed to
    undertake any analysis of the facts pleaded to determine whether a fiduciary
    relationship could be found based on those facts.  Instead, they say he simply relied on case
    law indicating that a municipal corporation does not owe a fiduciary duty to
    its citizens.  They argue further that
    they did allege that the respondent, Derek Petch owed a special duty to them
    and that whether this duty could be characterized as a fiduciary duty is a question
    of fact that should have been determined at trial.

[36]

I would reject this ground of appeal.  One, even if someone in the position of Mr.
    Petch can ever owe a fiduciary duty to the residents of a municipality  a
    question that I am not deciding  a breach of fiduciary duty could not be found
    in the instant case.  I disagree with the
    Marks assertion that the facts pleaded can reasonably support a finding that
    the city or Mr. Petch owed a fiduciary duty to the Marks.

[37]

The essential elements of vulnerability or
    dependence of the appellants Irina and Julia Marks are clearly not
    present.  As the motion judge found at
    para. 54:

[N]
either the City nor
Mr. Petch (no
    allegations are made against him outside his status as a city employee) owed
    any fiduciary duty to Irina and Julia Marks since Bruce Marks was the
    registered owner of the property.  Neither was the subject of a charge under the City fencing by-law.

[38]

And, as the motion judge noted, at the relevant
    time Julia was not yet born.

[39]

This leaves Bruce Marks.  The paragraphs of the original statement of
    claim, which the Marks argue factually support the breach of fiduciary duty
    claim, merely allege that the defendant Petch (in his role as By-Law
    Enforcement Officer for the City of Ottawa) owed a duty to the plaintiffs to
    conduct an appropriate investigation and then list the alleged breaches.

[40]

The Marks appear to rely simply on their use of
    the word duty to support their claim, but fail to plead any facts that would
    support the existence of a fiduciary duty.  Consequently, sufficient material facts have not been pleaded to support
    a cause of action for the tort of breach of fiduciary duty.  This ground of appeal must be dismissed.

Issue 3: Did the motion judge err in concluding that the Marks claim
    constituted a collateral attack on a previous order?

[41]

There are two parts to this issue, both in
    connection with prior decisions and orders made by Ray J.:
Marks v. Ottawa (City)
(2007), 40 M.P.L.R. (4th) 264 (Ont.
    S.C.).  The first is in connection with
    the motion judges finding that certain of the proposed amendments
    amount to a collateral attack on Ray Js order.  The second is in respect of the
    motion judges view that the proposed amendments might amount to an abuse of
    process.

[42]

The Marks submit that the motion judge erred in
    both respects.  I will deal with each of
    these arguments in order.

Collateral attack

[43]

First, in
    para. 132(c) of his reasons, the motion judge ordered that [t]he plaintiffs
    shall remove from their Amended Statement of Claim all pleadings related to
    allegations of alleged wrongdoing by all defendants relating to their conduct
    in complying with the order of Ray J.  He made this order, as I said, because he found that some of the
    proposed amendments were a collateral attack on Ray Js decision.

[44]

It is helpful to recall that on May 28, 2007,
    the Marks obtained an
ex parte
injunction
    enjoining Ms. Natividad and Mr. Maheux from encroaching onto the Marks
    property.  This injunction was obtained
    pursuant to their judicial review application, wherein the Marks sought a
    declaration that the right-of-entry by-law was
ultra vires
and that it was null and void pursuant to the
    provisions of the
Canadian Bill of Rights
and the
Canadian Charter of Rights and
    Freedoms
.  They also argued that the
    by-law was contrary to the principles of natural justice and that it was
    invalid.  The remainder of the
    application was adjourned to June 6, 2007.

[45]

On the return of the application on June 6, 2007
     some five months before the commencement of this action  the parties agreed
    that the only issue was the continuation of the injunction.  For the purpose of the motion only, the Marks
    abandoned the issue of the validity of the by-law, and instead advanced as the
    serious issue that the right-of-entry permit was invalid as not complying
    with the requirements of the by-law.  The
    balance of the Marks application for judicial review remains outstanding.

[46]

At the hearing, the respondents argued that many
    of the issues
raised
in both the original statement of
    claim and the proposed amended statement of claim directly and indirectly
    attack the June 2007 order of Ray J.  In
    the instant case, the motion judge set out at para. 107 the doctrine of
    collateral attack by quoting the Supreme Court of Canadas decision in
Garland v. Consumers Gas Co.
, [2004] 1 S.C.R.
    629 at para. 71:

The doctrine of collateral attack prevents a party from
    undermining previous orders issued by a court or administrative tribunal....
    Generally, it is invoked where the party is attempting to challenge the
    validity of a binding order in the wrong forum, in the sense that the validity
    of the order comes into question in separate proceedings when that party has
    not used the direct attack procedures that were open to it (i.e., appeal or
    judicial review).

[47]

The motion judge found that Ray J. gave directions
    to the parties that were binding and that continue to be binding authorizing
    the issuance of the permit and entry onto the Marks property.  Specifically, at para. 124, the motion judge described
    the directions given and their effect this way:

Ray J. made an order - an order that, subject to the filing of
    a written undertaking, the respondents were entitled to enter upon Mr. Marks
    property and carry out work pursuant to an amended or re-issued right-of-entry
    permit.  It was a court order authorizing the respondents to proceed in a
    certain fashion.  Notwithstanding their compliance with this order, they
    have now been sued in this proceeding for hundreds of thousands of dollars for
    complying with the order.

[48]

The motion judge found that a substantial part
    of the Marks original statement of claim, and the proposed amendments, arise
    out of the issuance and execution of the right-of-entry permit.  As such, he held that these parts amount to a
    collateral attack on Ray Js order, although he noted at para. 128 that [o]n
    this motion I am concerned only with the proposed amended pleadings.

[49]

The Marks argue that the motion judge
    misapprehended the content and effect of the order made by Ray J.  That is to say, the motion judge erred in
    concluding that in effect Ray J. had found and ruled that the right-of-entry
    by-law and the issuance of the right-of-entry permit pursuant to it were valid
    in law.  They say he also erred in
    finding that Ray J. had authority and jurisdiction to in effect make a final
    order bestowing a licence upon the respondents entitling them to enter upon the
    property of the Marks.

[50]

The core of the Marks submissions is that the
    only jurisdiction Ray J. had in the matter was to make an order either lifting
    or continuing the injunction.  They say that
    the motion judges error had the effect of depriving them of their day in court
    relating to a substantial portion of their claim in trespass.  Their view is that they are not seeking to
    set aside or challenge the order of Ray J. but simply seeking the damages
    related to the inappropriate actions of the respondents.

[51]

Ray J. made clear that he was aware of the issue
    he was deciding, namely, whether or not to continue the interim injunction he
    granted on May 28, 2007.  And, he
    acknowledged that the correct legal test to be applied  and as agreed to by
    the parties  was that stated in
RJR-MacDonald
    Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311: (1) serious
    issue to be tried; (2) irreparable damage if the injunction is not issued; and
    (3) balance of convenience.

[52]

The analysis of Ray J.s jurisdiction requires
    the leaving aside of any consideration of the legality of the right-of-entry by-law
    because it was not before him.  As noted,
    the Marks argued before Ray J. that the serious issue for his consideration
    was the assertion by the Marks that the right-of-entry permit was invalid
    because it did not comply with the requirements of the right-of-entry by-law.  Ray J., at para. 35, held: I cannot find
    that the [Marks] claim is frivolous or vexatious however, and therefore
    according to the jurisprudence must move on to the second of the three tests.

[53]

Indeed, nowhere in his reasons does Ray J. make
    a finding or a ruling on the validity of the by-law.  The only issue was whether Ms. Natividad and
    Mr. Maheux should continue to be prohibited from entering on the Marks
    property.  He did not decide whether or
    not that entry was in all respects legal, nor did his decision otherwise
    legalize any entry.
[3]

[54]

To repeat, on May 28, 2007, Ray J. granted the
    Marks an
ex parte
injunction
    enjoining Ms. Natividad and Mr. Maheux from encroaching onto the Marks
    property.  Their right to enter upon the
    Marks property was pursuant to a permit issued by the City of Ottawa under its
    right-of-entry by-law, not because of any order by Ray J.  In June 2007, Ray J. ordered that the
    injunction should be lifted upon the giving of Mr. Maheux and Ms. Natividads
    undertaking that any work constructed would not result in an encroachment onto
    Marks land.

[55]

The June order of Ray J. went no further than to
    apply the rule in
R.J.R
.-
MacDonald
.  The result of this was
    simply that there would no longer be a court order preventing Ms. Natividad and
    Mr. Maheux from completing their project.  Put another way, it was not  as the motion judge found  a court order
    authorizing the respondents to proceed in a certain fashion.  Rather, it was an order removing a previous
    court-ordered impediment to their proceeding.

[56]

At para. 71 in
Garland
,
Iacobucci
    J. (writing for
the court) held that the collateral attack doctrine did
    not apply in circumstances where
orders of the Ontario Energy Board permitted Consumers Gas to charge
    its customers a criminal rate of interest in paying accounts late.  Iacobucci J. noted that where
the
    specific object of a partys action is not to invalidate or render inoperative
    a boards orders, but rather to recover money that was illegally collected by
    another partys conduct because of the boards orders, the collateral attack
    doctrine does not apply.  Similarly, here
    the Marks are not seeking to set aside or challenge the order of Ray J.;
    rather, they are seeking damages related to the alleged inappropriate actions
    of the respondents, including those actions pursuant to the City of Ottawas
    right-of-entry by-law.

[57]

The orders made by Ray J. granting the
    injunction and subsequently lifting it did not resolve the issues in the main
    action and the rulings were without prejudice to the parties relating to those
    issues.  These issues include the
    validity of the right-of-entry by-law, permits issued pursuant to it, and any
    legal remedies that might arise from the determination of validity.   I would, therefore, allow this ground of
    appeal.

Abuse of process

[58]

This second part of this issue is summarized by
    repeating the motion judges observations at para. 131:

A valid argument can also be made that the attempt of the
    plaintiffs in their amended pleadings to seek damages allegedly arising out of
    the post Ray J. decision issuance of the right-of-entry permit and the entry on
    the property is an abuse of process.  This Court, of course, possesses an
    inherent jurisdiction to prevent the misuse of its procedures in a manner that
    would bring the administration of justice into disrepute. [Citations omitted.]

[59]

The respondents arguments in this regard are
    principally based upon their view that the proposed amendments amount to a
    collateral attack on the previous orders of Ray J.  Given my decision on that issue, there is no
    abuse of process.

The effect of the motion judges decision

[60]

At para. 130 the motion judge held that:

[T]o implement my conclusions, the amended pleadings require
    substantial further amendment to remove all claims related to the respondents
    issuance of the entry permit following Ray J.s order and, as well, the entry
    on the property following that order.  At the very least, the pleading
    must make it clear that the malice alleged in paras. 57(a), (b), (c), (d), (e),
    (f), (g), (h), (i), and (j) relate to the time before Ray J. issued his
    reasons/decision on the injunction.

[61]

At the beginning of my analysis of this issue I
    set out the motion judges ultimate conclusion, which he expresses in para.
    132(c) of his reasons.  His holdings in
    these two paragraphs are reflected in the court order at para. 3.
In
the result, para.
    3 of the court order must be deleted.

DISPOSITION

[62]

For the foregoing reasons, I would dismiss the
    appeal in respect of issues one and two.  I would allow the appeal in connection with
    issue three.  Accordingly, I would set
    aside para. 3 of the motion judges order.  In all other respects, I would not disturb the order.  Given this mixed result, I would award the
    respondents their costs of the appeal fixed in the amount of $7,500, inclusive
    of disbursements and applicable taxes.

RELEASED:

APR -1 2011                                            H.S.
    LaForme J.A.

KF                                                              I
    agree K. Feldman J.A.

I
    agree R. Juriansz J.A.

[1]
Counsel
    for these respondents informed the court that as the proposed amendments at
    issue in this appeal are in respect only of claims against the City of Ottawa
    and Derek Petch, she would not be taking a position on the appeal.

[2]
I note
    that the Divisional Court has since held this power to be in the jurisdiction
    of a judge only and not that of a master:
Herzig
    v. Markham (Town)
, [2007] O.J. No. 4873 at para. 7. However, as the
    decision under appeal is that of a judge, it is unnecessary for me to comment on
    this point.

[3]

Ray Js.

remarks
in para. 33 of his
    decision might suggest that he was deciding these two issues.  However, it is clear that neither of these
    two issues was before him to decide and it is clear from reading his reasons as
    a whole that he was aware of this.


CITATION:
Oelbaum v. Oelbaum, 2011
          ONCA 300

DATE:
          20110418

DOCKET: C52784

COURT OF APPEAL FOR ONTARIO

Cronk, Gillese and MacFarland JJ.A.

BETWEEN

Barbara Ann Oelbaum

Applicant (Respondent)

and

Mark Oelbaum

Respondent (Appellant)

No one appearing for the appellant

Bohdan A. Shulakewych, for the respondent

Heard and released orally: April 14, 2011

On appeal from the order of Justice John C. Murray of the
          Superior Court of Justice dated September 8, 2010.

ENDORSEMENT

[1]

Mr. Oelbaum did not appear today. Late last night he
    sent an email to the court offices in which he indicated that he would have
    problems attending today. However, on February 23, 2010, Moldaver J.A. dealt
    with Mr. Oelbaums earlier request for an adjournment. In granting that request,
    Moldaver J.A. made it abundantly clear that this appeal was to proceed today.
    In light of that, we accept the respondents submission that Mr. Oelbaums
    failure to attend today results in the appeal being dismissed as abandoned.

[2]

In any event, we would have dismissed this appeal as an
    abuse of process. This appeal emerges from a protracted matrimonial dispute.
    The appellants answer was struck because he repeatedly refused, in the face of
    multiple court orders, to make financial disclosure. No appeal was taken from
    the order striking his answer. Three years later the matter proceeded to an
    uncontested trial at which the respondent was awarded substantial equalization
    and support payments.

[3]

The appellant then moved before Murray J. for an order
    staying or setting aside the trial judgment and reinstating his answer. The
    motion was dismissed.

[4]

In his lengthy, comprehensive reasons, the motion judge
    pointed to the appellants failures to: pay outstanding awards; make any effort
    to have his answer reinstated for a period of some three years; provide
    meaningful disclosure; respect court orders; and, appeal the order striking his
    answer. The motion judge also noted that the appellant offered no explanations
    for these failures. He found that he was unable to assess any possible
    prejudice to the appellant because of the appellants own failure to provide
    financial disclosure. He also noted that this was not a case where the
    appellant was denied a chance to present a defence on the merits; rather, it
    was the appellant who had intentionally failed to provide the necessary
    information to the court so that the court could fairly and expeditiously
    resolve the issues.

[5]

Further, the motion judge found that there was no
    evidence of misleading or fraudulent tactics on the part of the respondent.
    Moreover, he found that the appellant had been gaming the process in order to
    prevent the respondent from receiving the financial support to which she was
    entitled.

[6]

Just prior to the hearing of the motion, the appellant
    had paid a small part of the outstanding spousal support arrears. Apart from
    that, however, he has not paid any of the outstanding equalization, support or
    costs orders.

[7]

In his factum on appeal, the appellant argued that the motion
    judge erred in not recognizing that the respondent displayed a lack of candour
    in the uncontested trial and in misapplying the law regarding the review of
    uncontested trials.

[8]

The respondent submitted that this court should
    exercise its discretion and refuse to hear this appeal.

[9]

We accept the respondents submission. In
Dickie v. Dickie
[2007],
    1 S.C.R. 346
, the Supreme Court of Canada affirmed the general rule that
    a court will not hear a litigant who has wilfully breached a court order until
    the litigant has cured the breach. This discretion is grounded in the inherent
    jurisdiction of the court to control its own processes and in s. 140(5) of the
Courts of Justice Act
, R.S.O. 1990 c.
    C.43, which gives the court express power to stay or dismiss a proceeding as an
    abuse of process.

[10]

In any event, we see no merit in this appeal. The
    motion judge applied the correct legal principles and the record amply supports
    his findings. Had it been necessary to do so, therefore, we would also have
    dismissed the appeal on this basis.

[11]

The respondent is entitled to her thrown away costs of
    this appeal, fixed in the amount of $20,000, inclusive of disbursements and all
    applicable taxes. These costs are to be treated as support for the purpose of
    enforcement.

E. A. Cronk J.A.

E. E. Gillese J.A.

J. MacFarland J.A.


Osadet v. Osadet, 2011
          ONCA 269

DATE: 20110406

DOCKET: C52795

COURT OF APPEAL FOR ONTARIO

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

BETWEEN

Margaret Osadet

Appellant (Applicant)

and

Stefan Ivan Osadet, Bogdan Osadet,
Elena Pauciuc
and the Public Guardian and Trustee

Respondents (Respondents)

Margaret Osadet, appearing in person

Stefan Ivan Osadet, appearing in person

Bogdan Osadet, appearing in person

Bruce Arnott and Emily Griffith, for the respondent, the
          Public Guardian and Trustee

Heard:
April 1, 2011

On appeal from the judgment of Justice Michael Penny of the Superior
          Court of Justice dated September 15, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We have listened carefully to the arguments of the
    appellant and Bogdan Osadet.

[2]

Justice Penny ruled that the continuing power of
    attorney was not valid and that Margaret Osadet would not be a suitable
    guardian of property for Stefan.

[3]

Although Margaret Osadet and Bogdan Osadet are very
    loyal to Stefan, there was ample evidence to support both of Justice Pennys
    findings and no error in the reasons for judgment.

[4]

Accordingly, the appeal is dismissed.

[5]

Margaret Osadet and Bogdan Osadet shall each pay $1,000
    to the Public Guardian and Trustee as costs of the appeal, inclusive of
    disbursements and applicable taxes.


CITATION:
Pezzolesi
v.
Skeggs
, 2011
          ONCA 253

DATE: 20110401

DOCKET: C52929

COURT OF APPEAL FOR ONTARIO

Sharpe, Gillese, Karakatsanis JJ.A.

BETWEEN

Lorenzo
Pezzolesi

Plaintiff (Appellant)

and

Frederick J.
Skeggs

Defendant (Respondent)

Jonathan L. Rosenstein, for the plaintiff/appellant

John Paul
Paciocco
, for the
          defendant/respondent

Heard & released orally:
March 25, 2011

On appeal from the order of
          Justice J.A.S. Wilcox of the Superior Court of Justice dated October 13,
          2010.

ENDORSEMENT

[1]

The motion to admit fresh evidence is dismissed.  Clearly everything in the appellants
    affidavit tendered as fresh evidence was available at the time the motion was
    heard.  It is tendered on the basis that
    the appellant was denied a fair opportunity to present his case as a
    self-represented litigant.  We are unable
    to accept that proposition.  The
    appellant was represented by counsel until one week before the motion which had
    been served more than nine months earlier.  He had filed an affidavit responding to the motion.  In view of the language, style and tone of
    that affidavit and the fact that it was sworn by the appellants solicitor, we
    find it difficult to accept the appellants assertion that he drafted the
    affidavit on his own.

[2]

The motion judge had before him an affidavit that
    certainly appeared to have been prepared by the appellants solicitor and, as
    recited in
para
. 21 of his reasons, he did afford the
    appellant an opportunity to make his case:

[21] Mr.
Pezzolesi
then
    spoke for himself.  The only evidence on
    his behalf that was properly before the court in response to the Defendants
    motion to dismiss the action was his affidavit of September 22, 2010.  He attempted to give evidence in a rambling,
    incoherent fashion, making mention of many points that were not covered in his
    affidavit.  The court offered him plenty
    of opportunity to focus his argument and respond to the submissions of counsel
    for the Defendant, which he was ultimately unable to do so.

[3]

On this record, we are not persuaded that to the extent
    the motion judge refused the appellant the right to adduce oral or additional
    documentary evidence, he erred.  Nor are
    we persuaded that there is anything in the way the motion judge treated the
    appellant as a self-represented litigant that would justify the admission of
    the fresh evidence that has been tendered.

[4]

Second, and in any event, we agree with the respondent
    that the motion judge did not err by dismissing the action for delay.  This action was commenced in 1995.  It was based on a 1989 transaction for a
    $13,000 purchase of land and damages of $750,000 are claimed.  Even on the appellants version advanced in
    the fresh evidence that he promptly complied with Del
Frate
J.s 2003 order for production, we are still left with an inexcusable delay in
    moving this action forward. There is evidence that a key witness has died and
    that memories have faded and hence that there would be prejudice to the
    respondent if the case were allowed to proceed in the face of the lengthy delay.

[5]

Accordingly, the appeal is dismissed.  Costs to the respondent fixed at $9,000
    inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

E.E. Gillese J.A.

Karakatsanis J.A.


CITATION:
R. v.
Badhwar
, 2011
          ONCA 266

DATE: 20110406

DOCKET: C51563

COURT OF APPEAL FOR ONTARIO

Moldaver, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Ravi Badhwar

Appellant

Vincenzo Rondinelli, for the appellant

Gregory J. Tweney, for the respondent

Heard: February 28, 2011

On appeal from conviction for criminal negligence causing
          death and failing to stop at the scene of an accident by Justice Bruce A.
          Glass of the Superior Court of Justice, sitting with a jury, dated October 3,
          2009 and from sentence imposed on December 3, 2009.

Moldaver J.A.:

[1]

The appellant was convicted of criminal negligence
    causing death while street racing contrary to s. 249.2 of the
Criminal Code
and failing to stop at the
    scene of an accident involving bodily harm that resulted in death contrary to
    s. 252(1.3)(b) of the
Criminal Code
.
    Both offences attract a maximum punishment of life imprisonment. The appellant
    was sentenced to 25 months imprisonment on the criminal negligence count (30 months
    less 5 months for time spent in pre-trial custody) and 12 months consecutive
    for the failing to stop count.

[2]

The appellant appeals against conviction and sentence.
    For reasons that follow, I would dismiss the appeal in its entirety.

CONVICTION APPEAL

[3]

The appellant raises the following four grounds of
    appeal against conviction:

(1)

The
    trial judge erred in precluding the appellant from testifying about a prior
    consistent statement he gave to the police on arrest.

(2)

The trial judge erred in leaving the appellants flight
    from the scene of the accident as circumstantial evidence from which the jury
    could infer guilt on the charge of criminal negligence.

(3)

The trial judge erred in failing to instruct the jury
    to treat the two counts in the indictment as separate and distinct.

(4)

The trial judge prejudiced the appellant in his
    instructions on the use the jury could make of his admission that he was the
    driver of a green Honda Civic on the day in question.

Overview of the Case and Position of Parties

[4]

On
    June 18, 2007, David Virgoe was killed when he drove his tractor trailer into a
    ditch after being struck by a car driven by Nauman Nusrat, a friend of the
    appellant. Prior to the accident, Mr. Nusrat and Prabhjit Multani, another
    friend of the appellant, had been street racing for more than 40 kilometers on
    a heavily travelled portion of Highway 400 due north of Toronto.  Witnesses called by the Crown variously
    described the Nusrat and Multani vehicles as reaching speeds of 170 km per
    hour, weaving in and out of heavy traffic, forcing drivers to brake quickly and/or
    take evasive measures to avoid being struck and generally driving with complete
    disregard for the lives and safety of other motorists. No issue is taken with
    the manner of their driving or the descriptions offered by the many Crown
    witnesses who observed it. Nusrat and Multani pleaded guilty to criminal
    negligence causing death while street racing and each was sentenced to
    imprisonment for 30 months.
[1]

[5]

As
    for the appellant, the issue at trial was whether he was an active third
    participant in the street racing, as the Crown maintained, or a mere onlooker,
    driving as safely as he could while trying to keep his friends in sight, as the
    appellant claimed.

[6]

In
    an agreed statement of fact, the appellant conceded that he was the driver of a
    green Honda Civic motor vehicle on Highway 400 in the morning of June 18,
    2007 and that he and his friends [Nusrat and Multani] were driving north to
    Wasaga Beach in separate vehicles.

[7]

Numerous
    Crown witnesses (9 or 10 in number) took note of the appellants vehicle and
    described it as one of the three vehicles they observed street racing. According
    to these witnesses, the appellants vehicle was seen weaving in and out of
    traffic, driving at speeds approaching 170 km per hour and cutting vehicles off
    as it proceeded north on Highway 400 to the point of the accident.

[8]

The
    appellant testified and denied that he was a participant in the street racing
    with Multani and Nusrat. In support of his position, he called several
    independent witnesses who were driving north on Highway 400 and who saw Nusrat
    and Multani street racing. Some of these witnesses remembered seeing a Honda,
    others did not. None could specifically recall seeing the Honda street racing.
    Two witnesses, who were passengers in the Multani and Nusrat vehicles, claimed
    that the appellant was not involved in street racing. A passenger in the
    appellants vehicle stated that at times he felt that the appellant was
    travelling too fast. On one occasion, he told the appellant that he [the
    appellant] had cut someone off. The appellant was not aware of having done so. The
    passenger remembered that the three vehicles were travelling together at times,
    but they were not together when the accident occurred. The appellant was some
    distance behind the tractor trailer when it was struck by Nusrats vehicle and
    went out of control.

[9]

Following
    the accident, the appellant stopped his vehicle. Witnesses gave conflicting
    evidence as to the length of time he remained at the scene. Some witnesses
    claimed he left within a few minutes; the appellant maintained that he stayed
    for about 20 or 25 minutes. According to the appellant, he was not permitted to
    get close to the area where the tractor trailer had come to rest. He also
    stated that various onlookers were acting aggressively towards him and his
    friends and some were shouting racial slurs. This prompted him to leave the
    scene.

[10]

The
    appellant agreed that he did not talk to a police officer at the scene, nor did
    he attempt to do so. Moreover, after leaving the scene, he took no steps to contact
    the police.

[11]

Several
    hours after the accident, the appellant was contacted by a police officer and
    asked to attend at the police station, which he did. It was then, for the first
    time, that he provided a statement to the police, some five hours after the
    accident. There was evidence that the appellant spoke to his friends at the
    scene and also by cell phone after the accident.

Ground One  admissibility of
    the appellants prior consistent statement to the police

[12]

Prior
    to the commencement of the trial, defence and Crown counsel agreed that if the
    appellant conceded that he was the driver of the green Honda Civic, the Crown
    would not hold a
voir dire
to
    determine the admissibility of the appellants statement to the police, nor
    would the Crown seek to tender it in evidence. The appellant, it seems, did not
    want his statement introduced into evidence; nor did he want it available to
    the Crown for cross-examination purposes. Indeed, the appellant made it clear
    that if the Crown sought to have his statement admitted into evidence, he would
    argue that it was obtained in violation of his rights under s. 10(b) of the
Charter
and seek to have it excluded
    under s. 24(2) of the
Charter
.

[13]

Part
    way through the trial, the appellant had a change of heart. He sought
    permission from the trial judge to cross-examine one of the arresting officers
    to establish that he [the appellant] had given a statement to the police and to
    elicit its contents. In return, he undertook to testify and subject himself to
    cross-examination.

[14]

The
    trial judge refused the appellants request. He did so on the basis of established
    authority from this court holding that subject to certain limited exceptions (none
    of which applied here) an accused could not lead evidence of his or her prior
    consistent statement to the police.

[15]

In
    his ruling, the trial judge made it clear that if the appellant testified, he
    was not to mention the fact that he had given a statement to the police, nor
    was he to mention its contents. Despite that ruling, while giving evidence in-chief,
    the appellant told the jury that on the day of the collision, he attended the
    police station and spoke to the police for about an hour. The Crown objected and
    in the absence of the jury, the appellant was warned not to breach the trial
    judges ruling again.

[16]

On
    appeal, the appellant submits that the trial judge erred in not allowing him to
    disclose the contents of his police statement to the jury. He relies on this
    courts recent decision in
R. v. Edgar
(2010), 101 O.R. (3d) 161, which he acknowledges was not decided at the time of
    his trial.

[17]

Edgar
stands for the proposition that it is open to
    a trial judge to admit an accuseds spontaneous out-of-court statements made
    upon arrest or when first confronted with an accusation as an exception to the
    general rule excluding prior consistent statements as evidence of the reaction
    of the accused to the accusation and as proof of consistency, provided the
    accused takes the stand and exposes himself or herself to cross-examination.  The statement does not go in for its truth
    (unless it is otherwise admissible as original evidence) but is evidence of
    the reaction of the accused, which is relevant to the credibility of the
    accused and as circumstantial evidence that may have a bearing on guilt or
    innocence.  (See
Edgar
at para. 72).

[18]

The
    proposition of law stated in
Edgar
must be assessed against the factual backdrop of that case. In
Edgar
, the accused was literally caught
    by the police in the act of stabbing his girlfriend. At para. 76 of the
    decision, Sharpe J.A. described the statements that Edgar wished to have
    admitted into evidence as follows:

The first two statements were
    spontaneous and made within minutes of the appellants arrest for murder. The
    appellant was in a highly agitated state and he had little time to think or to
    fabricate a story
.
While the third statement was made four
    hours after the arrest
, it was made at a time when the appellant was in the
    hospital recovering from the injuries he had sustained in the altercation and
the third statement was really a
    continuation of the first two statements
. In my view, the appellants three
    out-of-court statements may fairly be described as statements made by an
    accused person upon his arrest and upon being first confronted with the
    allegation of murder. [Emphasis added.]

[19]

In
    the circumstances, Sharpe J.A. found that while testifying, Edgar should have
    been permitted to inform the jury of the contents of those statements in their
    entirety and the trial judge had erred in holding that only parts of them were
    admissible. Nonetheless, Sharpe J.A. concluded that the error was harmless
    in the circumstances, primarily because the probative value of the excluded
    statements was low. In this regard, at para. 81, he noted that:

(1)

There
    was nothing in the excluded statements that was not already in Edgars
    evidence;

(2)

The
    jury was aware of the incoherent portions of Edgars statements, thereby
    reducing if not eliminating the risk that without knowing anything about what
    [Edgar] said upon arrest, the jury might have drawn an adverse inference on
    account of the evidence being excluded;

(3)

The
    primary reason Edgar wanted the statements to be admitted was to show his
    confused and agitated state of mind to support his real defences to murder,
    namely automatism and lack of intent. That evidence was admitted; and

(4)

The
    excluded portions of the statements were relevant to the defence of
    self-defence which, in the circumstances was tenuous at best.

[20]

In
    concluding that Edgar should have been permitted to inform the jury of the
    contents of his statements, Sharpe J.A. placed considerable emphasis on their
    spontaneity and the fact that they were made before he had time, in the words
    of Sir Rupert Cross, to think things out. (See para. 48 of
Edgar
and the quote from
Evidence
, 4
th
ed. (London: Butterworths,
    1974), at p. 218).  At para. 69, Sharpe
    J.A. observed that when spontaneity is lacking, the statements may be either
    excluded or, in the case of doubt, made the subject of an instruction to the jury
    as to weight by the trial judge.

[21]

That
    brings me to the statement of the appellant. Whatever else may be said about
    it, it can hardly be characterized as spontaneous.  The appellant had five hours to consider his
    position and think things out before going to the police station. He also had
    the opportunity to speak to his friends after the accident, either directly or
    by cell phone, before speaking to the police.

[22]

In
    these circumstances, if the trial judge had had the benefit of
Edgar
, I believe he would likely have
    excluded the appellants statement for lack of spontaneity. But even if the
    statement had been admitted, in my view, its probative value would have been minimal
    due to its lack of spontaneity. The appellants reaction upon being confronted
    with an accusation that he knew was coming and that he had had five hours to
    think about was not likely to be of much value to the jury. Bearing that in
    mind, as well as the fact that the statement contains nothing that the
    appellant did not tell the jury in his testimony, I am satisfied that the
    verdict would inevitably have been the same had the appellant been permitted to
    inform the jury of his statement to the police. In this respect, I note that
    the jury was aware that the appellant spoke to the police for about an hour
    when he was arrested. He told them so in his examination-in-chief, albeit in
    contravention of the trial judges ruling. While the jury may have wondered
    what he told the police, they did not see the Crown cross-examining him on any
    inconsistencies in his statement.  Obviously,
    the Crown could not have done so but the jury would not have known that.  Hence, the jury would have had no reason to
    believe that the appellants evidence differed from what he told the police.

[23]

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

Ground Two - The appellants flight from the scene

[24]

The
    appellants flight from the scene was central to the jurys assessment of the
    failing to stop charge. Apart from its importance on that charge, the trial
    judge also left it as evidence from which the jury could infer guilt on the
    charge of criminal negligence causing death. He did so however, in the most benign
    terms.

[25]

Specifically,
    the trial judge made it clear that flight was but one piece of evidence the
    jury could consider, along with all of the other evidence, in deciding whether
    the Crown had proved its case against the appellant. Moreover, in the context
    of that instruction, the trial judge impressed on the jury the importance [of]
    evidence that offers other explanations for this conduct
.
The trial judge then reminded the jury of the appellants evidence that he did
    not think he was a part of the accident but that he stayed for 20 to 25 minutes
    nonetheless until people in the area began expressing insults and threats to
    his group. It was only then that he decided to leave. The trial judge followed
    that review with the following sharp warning:

You
    must not use this evidence about what [the appellant] did or said afterwards in
    deciding or helping you decide that [he] committed these offences
unless you reject any other explanation for
    it.
[Emphasis added.]

[26]

Contrary
    to the appellants submission, I think it was proper for the trial judge to
    leave evidence of flight as circumstantial evidence from which the jury could
    infer guilt. No objection was made to the impugned instruction at trial  for
    good reason in my view.

[27]

The
    appellant maintained that he was not a party to his friends street racing and
    that he was driving as safely as he could in the circumstances. At worst, he
    may have been guilty of some minor
Highway
    Traffic Act
infractions. The Crown, on the other hand, took the position
    that the appellant was an active participant in the street racing. Against that
    backdrop, the jury was entitled to ask what a person driving, as the appellant
    claims he was, would have done after the accident, and to compare it to what he
    did, or did not do, bearing in mind his explanation for leaving the scene when
    he did.  That is precisely the type of
    common sense reasoning we expect of juries. And the use of flight in these
    circumstances as after-the-fact conduct capable of proving guilt finds support
    in this courts jurisprudence (see
R. v.
    Baker
(2006), 81 O.R. (3d) 276 and
R.
    v. Phillips
(2005), 193 O.A.C. 322).

[28]

In
    oral argument, we queried whether the trial judge should have told the jury
    that while evidence of flight could be used in deciding the manner of the
    appellants driving, it could not be used to differentiate between the crimes
    of criminal negligence causing death and dangerous driving. For reasons that
    follow, I need not finally decide the issue. In this case, if the jury was
    satisfied that the appellant was an active third participant in street racing,
    his fate on the charge of criminal negligence was effectively sealed. No jury
    acting reasonably could have convicted him of a lesser offence.  Hence, even if the trial judge should have
    differentiated between the crimes of criminal negligence causing death and
    dangerous driving in his instructions on flight, the error was harmless and
    occasioned no substantial wrong or miscarriage of justice.

[29]

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

Ground Three - treating the two counts in the indictment
    as separate and distinct

[30]

The
    trial judge did not specifically instruct the jury to treat the two counts in
    the indictment as separate and distinct; nor did he warn the jury that a
    finding of guilt on one count could not be used as evidence of guilt on the
    other. The appellant submits that this failing created [a] risk that the jury
    would impermissibly apply evidence across counts, especially in view of the
    after-the-fact conduct instruction which effectively encouraged rather than
    cautioned the jury from using evidence on a particular count to influence its determination
    of another count.

[31]

I
    would not give effect to this ground of appeal. It was not raised at trial and
    has no practical application to the facts of this case.

[32]

The
    jury heard all of the evidence relevant to both counts. This is not a case in
    which the jury was exposed to evidence of an unrelated event involving discreditable
    conduct on the part of the appellant. Moreover, as I have explained, the
    appellants after-the-fact conduct  in this case flight  was a relevant
    consideration for the jury in assessing whether the appellants driving reached
    the level of criminal conduct.

[33]

Importantly,
    the trial judge separated the two offences in his charge and provided specific
    instructions to the jury on each. He properly explained the elements of the two
    offences and pointed the jury to the evidence they could consider in deciding
    whether those elements had been met. The trial judge also explained the
    position of the parties in relation to each of the counts and instructed the
    jury that the onus rested with the Crown to prove the appellants guilt on each
    count to the criminal standard. Finally, the trial judge made it clear that the
    jury was to return a separate verdict for each count.

[34]

In
    the circumstances, nothing more was required. An instruction along the lines
    now sought by the appellant would, in my view, have been more confusing than
    helpful to the jury.

Ground Four  the use of the appellants admission

[35]

Part
    way through the trial, Crown counsel expressed a concern, in the absence of the
    jury, that the appellant was backing away from his admission that he was the
    driver of the green Honda Civic on the day in question. As the record
    discloses, this comment generated a lively debate between Crown and defence
    counsel and some pointed remarks from the trial judge. When the dust settled,
    it seems that everyone was satisfied that the appellant was not backing away
    from his admission but merely asking that it be construed in a somewhat narrower
    fashion than the Crown had perhaps anticipated.

[36]

Be
    that as it may, in his charge to the jury, after discussing the matter with
    counsel, the trial judge provided the following instruction:

In
    effect, the admissions in Exhibit One confirm that Mr. Badhwar was the
    driver of the third vehicle. Although he testified that some driving described
    by other witnesses was not his driving, I direct that you do not take that
    statement to mean that he was not driving the third vehicle. When an admission
    is made, it is not to be changed during the trial.

However,
    Mr. Badhwar did not agree with how various Crown witnesses described the
    driving of the third vehicle. You are entitled to consider all the evidence
    describing the way the third vehicle, i.e. the green Honda Civic was driven and
    how it moved on the highway.

[37]

Defence
    counsel at trial [not Mr. Rondinelli] had only one complaint about that
    instruction. He urged the trial judge not to tell the jury that when an
    admission is made, it is not to be changed during the trial. Counsel believed
    that an instruction of that nature was unnecessary and he was concerned that
    the jury might take from it that the appellant had tried to go back on his
    admission.

[38]

On
    appeal, the appellant did not press this ground. He accepts that the trial
    judge left it to the jury to decide how the green Honda was being driven, bearing
    in mind the differing versions given by the appellant and his witnesses and the
    witnesses called by the Crown. That is
all the
appellant wanted. It was never his position that there was a second phantom
    Honda Civic that was either road racing with his friends or otherwise driving in
    a criminally negligent manner.

[39]

As
    for the concern raised by the appellants trial counsel, the wording used by
    the trial judge was general in nature and I am not persuaded that the jury
    would have taken from it that the appellant was trying to back away from his
    admission.

[40]

Accordingly,
    I would reject this ground of appeal.

SENTENCE APPEAL

[41]

The
    appellant seeks to have his sentence of 30 months (
less
5 months for time spent in pretrial custody) on the charge of criminal
    negligence causing death reduced to 23 months. At the same time, he asks that his
    sentence of 12 months consecutive for failing to stop at the scene of an
    accident be increased to 19 months (
less
5 months for
    spent in pretrial custody). In other words, the appellant does not seek a
    reduction of his global sentence of 37 months; he merely seeks to realign the
    numbers in order to circumvent the provisions of the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 that prevent
    him from appealing, as of right, the deportation order he is facing as a result
    of his conviction and sentence on the charge of criminal negligence causing
    death.

[42]

In
    support of his position, the appellant has filed fresh evidence, with the
    consent of the Crown, outlining his present circumstances, his present
    situation regarding employment and his future education plans. In seeking to
    have his sentence adjusted, the appellant does not suggest that the trial judge
    erred in imposing a penitentiary sentence on the charge of criminal negligence
    causing death  nor could he. This court imposed a 30 month sentence on Mr.
Nusrat
for the offence of criminal negligence causing death
    while street racing (2009), 239 C.C.C. (3d) 309 and upheld a 30 month sentence for
    that offence in respect of Mr.
Multani
(2010), 261
    O.A.C. 107

[43]

Significantly,
    in Multanis case, the court refused to give effect to Mr. Multanis submission
    that the sentence of 30 months should be reduced to 23 months for reasons
    relating to his immigration status. At para. 3 of the decision, the court noted
    that while the deportation consequences of the sentence may be a proper factor
    to consider in determining the appropriate sentence in certain cases,
    immigration consequences cannot take a sentence out of the appropriate range.

[44]

That
    principle applies equally to the appellant. In his case, somewhat ironically,
    he seeks to benefit from the fact that he was convicted of two offences and
    therefore can seek the adjustments he is requesting without interfering with
    the overall length of his sentence  something Mr. Multani could not do given
    that he was only convicted of the single offence of criminal negligence causing
    death.

[45]

No
    matter how one chooses to come at the issue, the bottom line remains the same.
    Courts ought not to be imposing inadequate or artificial sentences at all, let
    alone for the purpose of circumventing Parliaments will on matters of
    immigration.

[46]

The
    30-month penitentiary sentence imposed on the appellant for the offence of
    criminal negligence causing death while street racing was not unfit; indeed, if
    anything, I think it was lenient.

[47]

Accordingly,
    I would grant leave to appeal sentence but dismiss the appeal.

CONCLUSION

[48]

In
    the result, I would dismiss the appeal from both conviction and sentence.

Signed:           M. J. Moldaver J.A.

 I
agree R. G. Juriansz J.A.

I
    agree Paul Rouleau J.A.

[1]
Nusrat initially received a conditional
    sentence of 2 years less 1 day but his sentence was raised to 30 months
    imprisonment on appeal.
(
R.
    v.
Nusrat
(2009), 239 C.C.C. (3d) 309 (Ont.
    C.A.).