COURT OF APPEAL FOR ONTARIO

CITATION:
MacGregor v. Potts, 2012
    ONCA 226

DATE: 20120411

DOCKET: C51053

Feldman, MacPherson and Hoy JJ.A.

BETWEEN

William MacGregor, Laura MacGregor, Matthew
    MacGregor an infant by his Litigation Guardian, Robert Mahler, Robert MacGregor
    an infant by his Litigation Guardian, Robert Mahler, Jane Lemke, Ken Lemke,
    Susan MacGregor and James Hughes

Plaintiffs/ Respondents

and

Peter Potts
, Susan
    Seyler, Grand River Hospital and Kitchener-Waterloo Health Centre

Defendants/ Appellant

Frank J. McLaughlin and Sarah W. Corman, for the
    appellant

Paul J. Pape and Shantona Chaudhury, for the respondents

Heard: March 6-8, 2012

On appeal from the judgment of Justice J.R. Henderson of
    the Superior Court of Justice, dated August 27, 2009.

MacPherson J.A.
:

A.

INTRODUCTION

[1]

This is an appeal in a medical malpractice case.  It is a
    difficult case for all concerned.  Something went wrong in the delivery of the
    second baby in the family of Laura and William MacGregor.  Matthew was born,
    but with catastrophic injuries.  The MacGregors will love and take care of
    Matthew for the rest of his life.

[2]

Several doctors, nurses and a hospital were involved in Matthews
    birth.  The principal doctor, an obstetrician, has devoted his career, with
    skill and care, to the delivery of several thousand babies.

[3]

The consequences of a medical misfortune for the person injured
    and often their families can be devastating and life-altering.  The same can be
    true for the medical professional who may have caused the injury.  In the
    medical area, this shared result is very painful because the doctors, nurses
    and hospitals involved are passionately dedicated to preserving life and
    health.

[4]

The doctor defendant here is a fine professional man who has
    devoted his life to the care of mothers and children.  The MacGregor family
    must endure and respond forever to Matthews injuries and precarious
    situation.  In this sad context, a judge can  and I do  express my genuine
    sympathy to the MacGregor family and to Dr. Potts.

[5]

The appellant, Dr. Peter Potts, appeals from the judgment of
    Henderson J. of the Superior Court of Justice dated August 27, 2009.  The trial
    judge found that Dr. Potts fell below the standard of care in the course of attempting
    a forceps-assisted vaginal delivery of the infant respondent, Matthew MacGregor,
    on January 27, 1999, and in failing to obtain informed consent to that
    procedure.

[6]

The respondents commenced an action in February 2002 and served a
    jury notice.  The trial commenced with a jury.  Following the evidence of
    Matthews mother, the respondent Laura MacGregor, and two of the respondents
    obstetrical experts, and over the objection of Dr. Potts, the trial judge
    granted the respondents motion to strike their own jury notice and discharged
    the jury.

[7]

The trial proceeded over the course of three months with evidence
    from seven fact witnesses, 11 experts on liability, and nine experts on
    damages.

[8]

The trial judge determined that Dr. Potts breached the standard
    of care in three ways and that the breaches caused Matthews injuries.  Dr.
    Potts appeals from these findings and asks that the trial judgment be set aside
    and judgment entered dismissing the action against him or, in the alternative,
    that a new trial on liability be ordered.

[9]

The respondents cross-appeal on the assessment of damages, in
    particular the component of the award relating to future care costs for Matthew,
    and seek to have fresh evidence admitted on this issue only.

B.

FACTS

(1)

The parties and events

[10]

In 1996, Laura MacGregor delivered her first child, a healthy
    boy, Robert, at Grand River Hospital in Kitchener.  Dr. Tsandelis, an
    obstetrician at the hospital, delivered Robert with forceps after Mrs. MacGregor
    had been pushing in the second stage of labour for about two hours.

[11]

At about 1:35 a.m. on January 27, 1999, Mrs. MacGregor came to
    the same hospital in the first stage of labour for her second child.  She was
    examined in obstetrical triage and transferred to a labour and delivery room.
    She signed a Consent to Vaginal Delivery form.  This general written consent
    form indicated that she consented to a vaginal delivery and additional or
    alternative investigative treatment or operative procedures, that ...is
    immediately necessary during the course of this procedure.

[12]

Dr. Susan Seyler, the physician on call from the obstetrical
    family practice in which Mrs. MacGregor was a patient, saw Mrs. MacGregor at
    about 4:00 a.m. and assumed her care.  Dr. Seyler assessed Mrs. MacGregor again
    at 5:45 and 7:45 a.m. and considered her progress in the first stage of labour to
    be slower than expected.  She decided that it would be prudent to give the
    obstetrician on call a courtesy heads up about Mrs. MacGregor.

[13]

Dr. Potts was the obstetrician on call that day.  He was an
    experienced obstetrician with a busy obstetrical practice at Grand River
    Hospital.  He delivered approximately 300-400 babies per year.  By January
    1999, he had delivered approximately 3000 babies, including at least 150
    forceps deliveries.

[14]

Dr. Seyler spoke to Dr. Potts at about 8:15 a.m.  Dr. Seyler told
    Dr. Potts that Mrs. MacGregors labour was proceeding more slowly than expected
    in the circumstances.  Nurse Lorie Freund also had a brief informal
    conversation with Dr. Potts at about the same time.

[15]

Mrs. MacGregors second stage of labour commenced at about 10:45
    a.m.  Shortly thereafter, she started to push.  At about 12:30 p.m., Nurse
    Freund noted the presence of fetal tachycardia (elevated heart rate).  She
    attempted to contact Dr. Potts, but was unable to do so.  She telephoned Dr.
    Seyler at 12:32 p.m. and informed her that Mrs. MacGregor had been pushing for
    nearly two hours and that fetal tachycardia had developed.  Dr. Seyler said she
    would return to the hospital.  Before she left her office, she spoke to Dr.
    Potts at his office and formally requested a consult.  Dr. Seyler informed Dr.
    Potts by telephone that Mrs. MacGregor was making slow progress and that there
    was an elevated fetal heart rate.  Dr. Potts agreed to meet Dr. Seyler at the
    hospital.

[16]

Dr. Seyler arrived in the delivery room at 12:45 p.m. and Dr.
    Potts attended at 12:50 p.m.  Before going to the delivery room, Dr. Potts
    reviewed Antenatal Record 1 and 2, but no other part of the hospital chart.
    The records he reviewed did not provide information about the progress of
    labour or whether there was maternal distress.

[17]

Upon arrival in the delivery room, Dr. Potts reviewed the fetal
    heart tracing and observed the elevated fetal heart rate.  He conducted a
    vaginal examination of Mrs. MacGregor.  He formed the view that Mrs. MacGregor
    would probably not deliver spontaneously if she continued to push: she had
    already spent two hours pushing and the most difficult part of the babys
    descent was still ahead; fetal tachycardia was present; and Mrs. MacGregor was
    tired.

[18]

Dr. Potts advised Mrs. MacGregor that he felt it to be prudent to
    assist her delivery with forceps.  Mrs. MacGregor accepted Dr. Potts
    recommendation.

[19]

Between 12:57 and 12:59 p.m., Dr. Potts applied the Kielland
    forceps.  There were four variable decelerations in the fetal heart rate
    between 12:57 and 1:03 p.m.  He discovered that the fetal head was in a
    different position than what he had initially thought.  This meant that he
    would need to rotate the fetus to a different position before applying
    traction.  There were no forceps in place between 12:59 and 1:03p.m., but there
    were variable decelerations at 1:01 and 1:02 p.m.  He switched to the Tucker
    forceps at 1:04 p.m. and began to rotate the fetus.

[20]

Between 1:04 and 1:10 p.m., during the application of the Tucker
    forceps, the fetal heart tracing showed three more variable decelerations.  There
    was never a complete recovery from the third, which began at 1:08 p.m.

[21]

At about 1:10 p.m., while rotating the fetus with the forceps,
    Dr. Potts noticed that the umbilical cord had prolapsed (compressed) and was
    between the forceps blade and the maternal side wall.  He immediately
    recognized this as a rare but also dangerous situation because a prolapsed cord
    would cut off the supply of blood and oxygen to the fetus.

[22]

Dr. Potts used the forceps to push up the fetal head in an attempt
    to relieve the pressure on the cord.  He directed the nurses to prepare for a
    caesarean section immediately.

[23]

During Mrs. MacGregors next contraction, Dr. Potts applied
    gentle traction for about 30 seconds in an attempt to deliver the baby.  This
    attempt was not successful.  Dr. Potts abandoned the forceps attempt, removed
    the forceps, and briefly applied upward pressure on the fetal head with his
    hand in an effort to decompress the umbilical cord.  Dr. Seyler replaced Dr.
    Potts at 1:14 p.m. and manually decompressed the cord thereafter.

[24]

Mrs. Macgregor was taken to the caesarean section delivery room
    at 1:19 p.m.  Dr. Potts delivered Matthew at 1:26 p.m.  Matthew had no vital
    signs.  A resuscitation team took over his care immediately.  After about five
    minutes, he was revived.  Unfortunately, he was seriously brain damaged.  He is
    now 13 years old and will always be seriously disabled.  His life expectancy is
    about 32 years.

[25]

The above is a very brief, general and neutral description of
    Matthews birth.  There are other facts, including contested facts, relevant to
    the disposition of the various issues in this appeal.  I will discuss these
    facts in the context of the issues to which they relate.

(2)

The trial judgment

[26]

In his 370 paragraph judgment, the trial judge found Dr. Potts
    negligent in three respects: his decision to make a forceps intervention; his
    performance of the forceps procedure; and his failure to obtain consent for the
    forceps intervention from Mrs. MacGregor.  He held that Dr. Potts negligence directly
    caused Matthews injuries.  In a section of his reasons titled FINAL
    CONCLUSION, the trial judge summarized these conclusions in this fashion:

Given the station of the baby and the rate of descent, I find
    that Potts breached the standard of care expected of a reasonable obstetrician
    by intervening in the labour with forceps. I also find that Potts breached the
    standard of care expected of a reasonable obstetrician by disengaging the fetal
    head during the application of the Tucker forceps. These two breaches of the
    standard of care constitute negligence.

I find that Potts failed to obtain Lauras informed consent to
    the forceps intervention as he failed to give her the option of continuing to
    push, he failed to inform her of the descent of the baby, and he failed to give
    her a general explanation of the risks and benefits of a forceps
    intervention.  I also find that if properly informed a reasonable patient
    in Lauras circumstances would not have consented to an intervention by
    forceps. The failure to obtain Lauras informed consent also constitutes
    negligence.

Regarding causation, I find that but for Pottss negligence
    there would not have been a cord prolapse. The cord prolapse directly caused
    Matthew to suffer injuries from acute profound asphyxia. The cord prolapse also
    set in motion a chain of events that caused both acute profound asphyxia and
    partial prolonged asphyxia. Therefore, but for the negligence of Potts, I find
    that all of Matthews injuries would not have occurred.

[27]

The trial judge awarded damages in two categories.  The first was
    damages agreed upon by the parties to Matthew, his parents, his brother and
    grandparents, and an OHIP claim to date.  These damages totalled about
    $2,800,000.  The second category was future pecuniary damages, the major
    component of which was $246,838.15 per year for future attendant care costs.

[28]

The appellant appeals the negligence finding.  The respondents
    cross-appeal the future pecuniary damages award.

C.

ISSUES

[29]

I would frame the issues on the appeal as:

(1)

Did the trial judge err in
    dismissing the jury?

(2)

Did the trial judge err in finding
    that Dr. Potts was negligent in his treatment of Mrs. MacGregor during the
    delivery of Matthew?

(3)

Did the trial judge err in
    reaching inconsistent findings on causation?

[30]

I would frame the issue on the cross-appeal as:

(4)

Did the trial judge err in his
    assessment of the cost of future attendant care for Matthew?

D.

ANALYSIS

Dr. Potts appeal

(1)

Dismissing the jury

[31]

The respondents (plaintiffs) filed a jury notice, as was their
    right.  They began to call their evidence.  After the evidence of Mrs.
    MacGregor and two obstetrical experts they, somewhat unusually, brought a
    motion to strike their jury notice.  Dr. Potts opposed the motion.  The
    defendant Grand River Hospital took no position on the motion.

[32]

In a 13 page ruling, the trial judge granted the motion and
    struck the jury.  He observed that the parties proposed to call an additional
    21 experts and that the trial would likely last eight weeks.  He recognized
    that [c]learly it is possible for a jury to hear and decide a medical
    malpractice case.  He set out the test for discharging a jury in
Graham v.
    Rourke
(1990), 75 O.R. (2d) 622 (C.A.) and
Cowles v. Balac

(2006), 83 O.R. (3d) 660 (C.A.).  He
    found that there are many complex aspects in the factual, medical and legal
    issues in this case.  He reviewed these in an organized and comprehensive fashion,
    including the potential obstetrical issues, scientific issues relating to
    causation, and the complicated future care cost claim.  He concluded that
    because of complexity, justice for the parties in this case is best served by
    the discharge of the jury.

[33]

The appellant contends that the trial judge erred in finding that
    the case was too complex for a jury.  In his factum, the appellant says that
    the trial judge misapplied the law and discharged the jury arbitrarily.

[34]

I do not accept this submission.  The appellant does not explain
    how the trial judge misapplied the law; nor does he say what constituted the
    arbitrariness of his ruling.

[35]

The decision to discharge a jury is a discretionary one.
    Appellate intervention is not warranted if there is a reasonable basis for the
    exercise of the trial judges discretion: see
Cowles v. Balac
, at
    paras. 40-42.  Based on the trial record and, frankly, based on the record and
    the nature of the legal argument in this three-day appeal, the trial judges
    decision to discharge the jury, and his reasons for doing so, were entirely
    reasonable.

(2)

Negligence  the forceps delivery

[36]

The trial judge found that Dr. Potts was negligent in three
    respects: (1) his decision to intervene with forceps; (2) his conduct of the
    forceps delivery; and (3) his failure to obtain informed consent by Mrs.
    MacGregor for a forceps delivery.

[37]

The appellant challenges all three of these findings of
    negligence.  In my view, it is necessary to address only the second of these
    submissions in order to resolve the negligence issue.

[38]

At trial, one of the respondents allegations of negligence
    regarding the manner in which Dr. Potts performed the forceps delivery was that
    Dr. Potts disengaged the fetal head from the mothers pelvic wall as he tried
    to rotate the fetus to bring it to a position where it could further descend to
    an ultimate delivery.  All of the experts agreed that if Dr. Potts had done this,
    it would have breached the standard of care for a forceps delivery because, as
    the trial judge explained in his reasons:

It is acknowledged that an obstetrician should not disengage
    the fetal head during a forceps intervention. Williams Obstetrics, 20th
    Edition, states under the heading Special Forceps Maneuvers the
    following:

The head should not be pushed high enough to allow
    disengagement because the cord may prolapse.

[39]

As we know, Matthews umbilical cord did prolapse during the
    forceps delivery.  The central question for the trial judge was: did Dr. Potts
    disengage the fetal head?

[40]

In answering this question, the factor that most influenced the
    trial judge was Dr. Potts own Operative Report written later that same day.
    Dr. Potts wrote this about his application of the Tucker forceps between 1:04
    and 1:10 p.m.:

After removing the patients catheter, Tucker McLane forceps
    were applied without difficulty. ... Application was checked and correct.
    Between contractions, the head was flexed,
disengaged
and the fetus was
    rotated without difficulty to an occiput anterior presentation.  During the
    modified Scanzonis maneuver to reapply the Tucker McLane forceps, the infant
    did not rotate back to an occiput posterior position.  In view of this, the
    infant was again rotated to an occiput anterior presentation and application
    was checked.  During the check of the application of forceps, it became
    apparent that the fetal umbilical cord had prolapsed down past the right side
    of the fetus head.       [Emphasis added by trial judge.]

[41]

In this passage, Dr. Potts describes how he performed the forceps
    rotation of the fetus and records his recognition of the unexpected and very
    dangerous development of a prolapse.

[42]

The trial judge said this about Dr. Potts report:

Looking at this excerpt from the Operative Report and comparing
    it to the acknowledged standard of care, it is easy to conclude that Potts
    breached the standard of care by disengaging the fetal head.

[43]

However, the trial judge did not rest on this easy conclusion.
    In his testimony, Dr. Potts had two responses to his use of the word
    disengaged in his Operative Report.

[44]

Dr. Potts first response was that he did not use the word
    disengaged in the traditional sense in his Operative Report.  The trial judge
    described this response and then assessed it in this fashion:

However, when faced with this obvious error Potts stated that
    when he used the term disengaged in his Operative Report he was not using
    that word in the traditional sense.  He testified that there were two
    separate definitions of engagement that were in common usage at the time, and
    he was using the non-traditional definition of that word.

Williams Obstetrics
, 20
th
Edition, defines
    engagement as, The descent of the biparietal plane of the fetal head to a
    level below that of the pelvic inlet.  I will refer to this definition of
    engagement as the traditional definition. According to Potts, engagement can
    also mean that the biparietal plane has descended to the level of the maternal
    ischial spines.  I will refer to this definition as the alternate
    definition.

I do not accept Pottss testimony that the alternate definition
    of engagement was in common usage as of 1999.  The only textbook that
    Potts could find that mentions this alternate definition was
Williams
    Obstetrics
, 21
st
Edition, which had one reference to the
    alternate definition, although other references to engagement in the 21
st
Edition used the traditional definition.  Moreover, the one passage from
    the 21
st
Edition that used the alternate definition referred the
    reader back to another chapter in the book that used the traditional
    definition.  One has to wonder if the one reference in the 21
st
Edition was an error.

Also,
Williams Obstetrics
, 21
st
Edition, was
    published in 2001, two years
after
Matthews birth, and therefore it is
    not evidence that any such alternate definition was in common usage as of the
    date of Matthews birth when the Operative Report was written.

Further, both of the defendants obstetrical experts, Dr.
    McGrath and Dr. Barrett, stated that they were not aware of the alternate
    definition of engagement until approximately one week prior to testifying
    before this court in the fall of 2008. Given that both of these experts
    practice extensively in this field and regularly write articles and appear
    before the courts, I find that it cannot be said that the alternate definition
    was in common usage in 1999. I note that defence counsel did not cross-examine
    any of the plaintiffs obstetrical experts on this alternate definition.

Still further, I have already found that Potts was very sloppy
    in the language that he used in his Operative Report, and made several
    errors.  In my view Potts is not the type of person to be at the vanguard
    of the advancement of medical terminology.  It is not likely that Potts
    meant to use an advanced alternate definition of a term that was commonly used
    in the traditional sense by most obstetricians.

Therefore, I find that when Potts wrote in his Operative Report
    that he disengaged the head, he was using the traditional definition of
    engagement. He meant that he lifted the biparietal plane of the fetal head to a
    level above the pelvic inlet. [Emphasis in original.]

[45]

Dr. Potts second response at trial was that his detailed
    description of what he had actually done during the forceps rotation
    established that he did not mean disengaged in the traditional sense when he
    used it in his Operative Report.

[46]

Again, the trial judge specifically addressed this response:

At trial, Potts denied that he disengaged the fetal head in the
    traditional sense of that word. Potts testified that he flexed the head and
    slightly de-stationed it or disengaged it, by which he said he meant that he
    took the BPD slightly above the ischial spines.  I accept that it was
    necessary for Potts to slightly de-station the head in order to rotate the
    baby.

I have already found that the BPD was at ischial spines when
    Potts applied the forceps. In most cases the distance from the ischial spines
    to the pelvic inlet is about 5 centimeters. Dr. McGrath opined that it was
    very unlikely that Potts disengaged the head in the traditional sense because
    it would be a long push to move the biparietal plane of the fetal head about 5
    centimeters from the ischial spines to the pelvic inlet.

I do not find Dr. McGraths opinion to be particularly helpful
    on this issue as he simply sets out the likelihood that Potts was negligent.
    Again, clinical probability must be considered in conjunction with all of the
    other evidence.

In this case only Potts knows what he did when he applied the
    forceps and elevated the fetal head. But, I have contradictory evidence from
    Potts on this point. In his Operative Report Potts wrote that he disengaged the
    head, but on the witness stand Potts said that he did not disengage the head.

Given that the Operative Report was dictated at about the time
    of the events, and given that Potts later reviewed the Operative Report for
    accuracy, and given that Potts knew that the Operative Report was a very
    important document that constitutes a record of the events, and given Pottss
    credibility problems at trial, I find that the Operative Report is the most
    accurate version of what Potts did when he applied the forceps. Therefore, I
    find that when Potts did a rotation of the baby with the Tucker forceps he disengaged
    the fetal head in the traditional sense of that word.

[47]

I can see no error in these two analyses, let alone a palpable
    and overriding error needed to upset the factual finding that Dr. Potts in fact
    disengaged the fetal head.  This was a factual finding grounded in credibility,
    and therefore particularly difficult to disturb on appeal: see
Housen v.
    Nikolaisen
, [2002] 2 S.C.R. 235 at 254-55,
Waxman v. Waxman
(2004),
    186 O.A.C. 201 at paras. 347 and 359-60.  There was no dispute that if the head
    had been disengaged, the subsequent use of forceps fell below the standard of
    care for such a procedure.  In these passages, the trial judge identified and
    carefully considered Dr. Potts written description of the forceps rotation,
    his explanations at trial, the relevant medical text book, and the testimony of
    experts called by Dr. Potts who did not support him on his personal definition
    of disengaged.  He even accepted some of Dr. Potts testimony, namely, that
    it was necessary to slightly move (de-station) the fetal head from the
    mothers pelvic wall in order to rotate the fetus.

[48]

There can be no doubt that, on the basis of the record, it would
    have been possible for the trial judge to accept Dr. Potts testimony about how
    he performed the forceps rotation and reach the conclusion that Dr. Potts use
    of the word disengaged in his Operative Report was in accordance with an
    accepted secondary meaning of that word or, alternatively, was only a reporting
    error in that what he really meant to record was that he appropriately
    de-stationed the fetal head.

[49]

However, acknowledging this potential analytical framework does
    not come anywhere close to offsetting  by labelling it a palpable and
    overriding error  the analysis the trial judge did make and the conclusion
    flowing therefrom.  The trial judge fully addressed Dr. Potts evidence and
    decided against him in reasons that are supportable, factually and legally.

(3)

Causation

[50]

The appellant acknowledges that the trial judge applied the
    proper test for causation, the but for test from
Resurfice Corp. v. Hanke
,
    [2007] 1 S.C.R. 333.

[51]

However, the appellant contends that the trial judge misapplied
    the test by making contradictory findings on causation: (1) the disengagement
    of the head caused the prolapse; and (2) the substandard performance of the
    forceps rotation led to the prolapse even if the head was not disengaged.

[52]

The trial judge specifically found that the cord prolapse
    occurred at approximately 1:10 p.m., while Dr. Potts was using the Tucker
    forceps.  Since, as discussed above, the trial judge was entitled to conclude
    that Dr. Potts improperly disengaged the fetal head during the forceps
    procedure, on this basis alone it was open to the trial judge to conclude that
    this resulted in the cord prolapse that caused Matthews injuries.

[53]

The trial judge also found that Dr. Potts was negligent in
    intervening with forceps.  He found that the use of forceps caused the
    prolapse, whether or not the head was disengaged.  Therefore liability flowed
    from the use of forceps even without disengagement.

[54]

The trial judge made this observation in the context of having
    made a clear finding that the head
was
disengaged.  It is not a
    contradictory finding.  Disengagement of the fetal head was the specific
    manoeuvre within the application of the Tucker forceps that created the space
    and opportunity for the umbilical cord to prolapse.

The
    MacGregors cross-appeal

(4)

Future attendant care for Matthew

[55]

The MacGregors cross-appeal relates to only one component of the
    damages award in this case, the future care costs for Matthew.  In this
    context, the MacGregors make two submissions.

[56]

First, the MacGregors assert that the trial judge erred by, in
    effect, co-opting Mrs. MacGregor into Matthews continuing care.

[57]

With respect to nighttime care for Matthew, the trial judge
    awarded damages as follows:

PSW [Personal Services Worker] Nighttime Care  70 hours per
    week, 12 weeks per year @ $24.77 per hour = $20,806.80

Laura Nighttime Compensation  14 hours per week, 40 weeks per
    year @ $24.77 per hour = $13,871.20

[58]

The MacGregors contend that the trial judge erred by assigning
    care of Matthew to Mrs. MacGregor, even though compensated.  In my view, there
    are two responses to this submission.  First, this assignment flowed from the
    evidence about Matthews care at the time of the trial.  Second, it is
    important to note that, because of Matthews condition, the damages award in
    this case is a complex one, involving many heads of damage and many financial
    calculations.  In my opinion, the global award is fair and reasonable to the
    MacGregors.  Importantly, there is nothing in the record to suggest that,
    through communication, flexibility and co-operation, the parties cannot make
    sensible adjustments to the delivery of future care to Matthew.  Appellate
    courts should be very cautious about intervening in a single component of a
    complex damages award after a long trial, especially when the award, viewed
    globally, appears to be quite reasonable.  For these reasons, I would decline
    to intervene in the component of the damages award relating to nighttime care
    for Matthew.

[59]

Second, on the basis of fresh evidence about Matthews current
    condition, the MacGregors assert that Matthews nighttime care should be the
    same as his daytime care, namely, provided by a Registered Practical Nurse.  In
    my view, there is nothing in the fresh evidence to support such an adjustment.
    I would not admit the fresh evidence because it would not affect the result
    reached by the trial judge.

E.

DISposition

[60]

I would dismiss the appeal and the cross-appeal.  I would dismiss
    the fresh evidence application.

[61]

Success is divided.  Given the number and complexity of the
    issues, the respondents have achieved greater success.  I would award costs of
    the appeal and cross-appeal, globally, to the respondents fixed at $100,000.00,
    inclusive of disbursements and HST.

Released: April 11, 2012 (K.F.)

J.C. MacPherson J.A.

I agree K. Feldman J.A.

I agree Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Major v. York Region
    Children's Aid Society, 2012 ONCA 223

DATE: 20120404

DOCKET: C54471

Goudge, Feldman and Blair JJ.A.

BETWEEN

Daniel C. Major

Plaintiff (Appellant)

and

York Region Childrens Aid Society, Walter
    Sienko, Judy Edminson, David Abbott, Denise Bilsland, Patrick Lake and Sherry
    R. Major

Defendants (Respondents)

Joseph Markin, for the appellant

Giovanna Asaro, for the respondents York Region
    Childrens Aid Society, Walter Sienko, Judy Edminson, David Abbott, Denise
    Bilsland and Patrick Lake

Heard: March 30, 2012

On appeal from the judgment of Justice John S. Fregeau of
    the Superior Court of Justice, dated September 26, 2011.

APPEAL
    BOOK ENDORSEMENT

[1]

In our view this appeal is without merit.  We see no error in the
    reasons of the motion judge.  We agree with him.  The appeal is dismissed.
    Costs to the respondent fixed at $6000 on a partial indemnity basis for the
    appeal and the appearance on March 14, 2012.


COURT OF APPEAL FOR ONTARIO

CITATION:
Moshav
    Naom Non-Profit Co-Operative Housing Corporation v. Guillaume, 2012
    ONCA 238

DATE: 20120416

DOCKET: M41135, M41151 and M41204 (C55031)

Lang, Epstein and Hoy JJ.A.

BETWEEN

Mintz & Partners Limited Court Appointed
    Receiver and Manager of Moshav Naom Non-Profit Co-Operative Housing Corporation
    and Not in It's Personal Capacity

Applicant
    (Respondent/

Responding Party in
    M41135 & M41204/

Moving Party in M41151)

and

Valerie Guillaume

Respondent (Appellant/

Moving Party in M41135
    & M41204/

Responding Party in M41151)

Valerie Guillaume, acting in person

Paula Boutis, for the respondent

Heard and released orally: April 4, 2012

On a motion to review the order of Justice Doherty of this
    court dated March 5, 2012, on a motion to quash the appeal and on a motion for
    direction.

ENDORSEMENT

[1]

There are three motions before this court today.  First, the appellant
    moves to review the order of a single judge of this court.  Second, the
    respondent moves to quash the appeal on the basis that it should properly have
    been brought in Divisional Court.  Third, the appellant moves to quash or
    adjourn the respondents motion to quash on the basis that she was not properly
    served.

[2]

We begin with the third issue regarding service.  We heard that motion
    first but reserved our decision until we heard submissions on the motion to
    quash.  The respondents motion record to quash the appeal was accompanied by
    an affidavit stating that the motion material was personally served on the
    appellant on March 14, 2012.  Quite apart from the affidavit of service, we
    held the matter down from 10:45 a.m. to 12:05 p.m. to give the appellant the
    opportunity to review the three-page factum and the four-paragraph supporting
    affidavit.  The appellant was otherwise very familiar with the material
    referred to on this motion.

[3]

The record discloses both that the appellant was served on March 14 and,
    in any event, that she had adequate opportunity to prepare to argue the motion
    to quash this morning.  Indeed, the appellants level of preparation was
    reflected in the very informed argument that she made on the motion to quash, which
    included reference to legal authorities.  Accordingly, the motion to quash or
    adjourn the appeal for improper service is denied.

[4]

We turn to consider the motion to quash the appeal.  In our view, this
    motion must succeed.  Section s. 171.16(1) of the
Cooperative Corporations
    Act
provides that the proper route of appeal is to the Divisional Court.  In
    that court, the appellant may raise her grounds of appeal, including any
    argument for relief from forfeiture, if one is available.  Accordingly, the
    motion to quash is granted and the appeal to this court is dismissed.

[5]

In these circumstances, it is unnecessary to deal with the appellants
    motion to review the order of the single judge.  That motion is also dismissed.

[6]

Costs are awarded to the respondent in the amount of $1,750.00,
    inclusive of disbursements and applicable taxes.

[7]

Approval as to form and content by the appellant regarding the order to quash is dispensed with.

S.E. Lang J.A.

Gloria J. Epstein J.A.

Alexandra
    Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
North
    Toronto Chinese Alliance Church v. Gartner Lee Limited,

2012 ONCA 251

DATE: 20120420

DOCKET: C54465

MacPherson, Lang, and Epstein JJ.A.

BETWEEN

North Toronto Chinese Alliance Church

Plaintiff (Appellant)

and

Gartner Lee Limited

Defendant (Respondent)

Rod Byrnes, for the appellant

Gosia Bawolska and Yu Mai, for the respondent

Heard: April 2, 2012

On appeal from the order of Justice Peter Lauwers of the
    Superior Court of Justice, dated September 9, 2011.

ENDORSEMENT

[1]

The plaintiff/appellant appeals from the order of Lauwers J. of the
    Superior Court of Justice, dated September 9, 2011, dismissing the proceeding for
    delay on motion by the defendant/respondent.  The action is for damages arising
    from the preparation of a hydrological report dated March 17, 1995 by the
    respondent.  The appellants position is that it relied on this report to its
    detriment in deciding to purchase property.

[2]

The following is a brief chronology of relevant events.

[3]

On December 5, 1996, the appellant put the respondent on notice of its
    intention to pursue an action against it.  On July 6, 2001, the statement of
    claim was issued.  On March 28, 2002, the respondent delivered its statement of
    defence and on April 30, 2002, its affidavit of documents.  Counsel for the
    respondent attempted to schedule examinations for discovery in August.
    However, her letters to counsel for the appellant went largely unanswered. The
    appellant delivered its affidavit of documents on January 8, 2003.  Thereafter,
    the respondent provided its productions to the appellant and served a notice of
    examination for discovery to take place at the end of that month.  A week
    before the scheduled discoveries, counsel for the plaintiff cancelled them.
    New dates were set for May of 2003.  These dates were moved to June as the
    appellant had not yet provided its productions.  Discoveries finally started in
    June of 2003.  They were set to continue in August once the appellant had
    provided documentation relating to its damages claim. The delay in providing
    this information necessitated the discoveries having to be moved to October.
    They did not, however, take place then as the appellant had still not provided
    the necessary information.

[4]

Three years later, not having heard anything more from the appellants
    counsel, counsel for the respondent advised that she had instructions to bring
    a motion for an order dismissing the action for delay.  The motion record was
    served on May 3, 2007.  At the request of appellants counsel the motion was
    re-scheduled to be heard on May 24.  At that time Boyko J. adjourned the motion
    to June 21 at which time Boyko J. ordered the appellant to answer undertakings
    and provide a breakdown of damages.  The appellant met these obligations and
    discoveries continued in December 2007.

[5]

In March of 2008, the court delivered a status notice that resulted in
    the action being dismissed for delay on June 5.  By order dated June 23, 2008
    the dismissal order was set aside.

[6]

After another year of inactivity, the respondent advised the appellant
    that a motion for summary judgment would be brought for an order dismissing the
    action for delay.

[7]

On April 12, 2010, the appellant set the action down for trial  eight
    years after pleadings had closed.

[8]

The respondents motion for summary judgment was served returnable in
    October 2010.  It was not heard until September 2011 due to unavailability of
    the appellants counsel.

[9]

On July 13, 2011, the appellant served its expert report, authored 17
    years after the delivery of the respondents report.

[10]

The
    motion judges reasons for dismissing the action for delay are summarized in
    para. 33 of his reasons:

There must come a point at which the plaintiffs accumulated, inordinate,
    inexcusable, and unexplained delays, in the face of the manifest expectations
    of the administration of justice as set out in the
Rules of Civil Procedure
and in the practices of the court, become reckless if not wilful and become
    disrespectful to the court and the defendant.  In my view, the plaintiff has
    reached that point in this case, thus meeting the standard of intentional and
    contumelious.  Even if the plaintiffs dilatory behaviour were not
    intentional and contumelious within the meaning of rule 24.01, that behaviour
    warrants dismissal of the plaintiffs case in the exercise of the courts
    inherent jurisdiction over its own process.

[11]

The
    test for dismissal of an action for delay is well established: see
Armstrong
    v. McCall
, (2006), 213 O.A.C 229 (C.A.), at para. 11, quoting from
Woodheath
    Developments Ltd. v. Goldman
(2003), 66 O.R. (3d) 731 (Div. Ct), at 732:

The principle to be applied on a motion to dismiss for delay is
    that the action should not be dismissed unless:

(1)

the default is intentional and contumelious; or

(2)

the plaintiff or his or her lawyers are responsible for the inexcusable
    delay that gives rise to a substantial risk that a fair trial might not now be
    possible.

[12]

The
    motion judge dismissed the action for delay on the first branch of the test,
    finding that the appellants default was intentional and contumelious. There
    was ample evidence to support this finding.

[13]

The
    appeal is therefore dismissed.

[14]

Counsel
    for the respondent seeks costs of the action including the motion for summary
    judgment in the amount of $57,000 and costs of this appeal in the amount of
    $7,000.  Both amounts are on a partial indemnity basis and include disbursements
    and applicable taxes.  Counsel for the appellant takes no issue with these
    submissions.  As a result, we order costs to the respondent in the amounts
    requested.

J.C.
    MacPherson J.A.

S.E. Lang
    J.A.

G.J.
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Out-Of-Home
    Marketing Association of Canada v. Toronto (City), 2012 ONCA 212

DATE: 20120402

DOCKET: C53527 and C53521

Feldman, Sharpe and Epstein JJ.A.

BETWEEN

Out-Of-Home Marketing Association of
    Canada

Applicant

(Respondent / Appellant by way of
    cross-appeal)

and

City of Toronto

Respondent

(Appellant / Respondent by way of
    cross-appeal)

AND BETWEEN

Pattison
          Outdoor Advertising LP and Pattison Sign Group,

A Division of Jim
          Pattison Industries Ltd.

Applicants

(Appellants / Respondent by way of
          cross-appeal)

and

City
          of Toronto

Respondent

(Respondent / Appellant by way of
          cross-appeal)

Earl A.
          Cherniak Q.C. and Jason Squire, for Pattison Outdoor Advertising LP

Christopher
          J. Williams and Patrick Harrington, for Out-of-Home Marketing Association of
          Canada

Ansuya
          Pachai and Ian A.G. Duke, for the City of Toronto

Heard: November
          23, 2011

On
          appeal from the judgment of Justice M. Penny of the Superior Court of Justice
          dated March 3, 2011, with reasons reported at 2011 ONSC 537, 81 M.P.L.R. (4
th
)
          1.

Sharpe J.A.:

[1]

In 2010, the City of Toronto enacted a bylaw imposing a tax on
    third party signs  fixed exterior signs that advertise goods or services not
    available at the premises where the sign is located: City of Toronto, by-law
    No. 197-2010 (the Sign Tax by-law). Pattison Outdoor Advertising (Pattison)
    and Out-of-Home Marketing Association of Canada (OMAC) challenged the Sign
    Tax by-law on various grounds, principally, that it imposes an indirect tax and
    therefore is
ultra vires
the City as contravening the
City of
    Toronto Act
, 2006, S.O. 2006, c. 11 and the
Constitution Act
,
    1867 (U.K.), 30 & 31 Vict., c. 3. Pattison also argues that the Sign Tax
    by-law should be quashed on the ground that it is discriminatory. OMAC submits
    that the even if the Sign Tax by-law is valid, it does not apply to signs that
    existed at the time of its enactment on account of a provision in the
City
    of Toronto Act
exempting existing lawfully erected signs from the reach of
    by-laws respecting signs.

[2]

The application judge gave comprehensive reasons refusing to
    quash the Sign Tax by-law. However, he accepted OMACs argument that existing
    signs were grandfathered under the saving provision. The application judge
    also imposed a sealing order protecting from disclosure certain financial
    information filed by Pattison in support of its argument that the tax was
ultra
    vires
.

[3]

Pattison and OMAC appeal the dismissal of their
ultra vires
challenge, arguing that the Sign Tax by-law imposes an indirect tax. Pattison
    also appeals the dismissal of the challenge on the ground that the Sign Tax
    by-law is discriminatory. Toronto appeals the grandfathering and sealing
    orders, arguing that the saving provision has no application to a by-law
    imposing a tax and that there was no basis in law for the sealing order.

[4]

My reasons will address the first three issues, all of which
    address the Sign Tax by-law. In respect of the fourth issue, that of the
    sealing order, I am in agreement with the reasons of my colleague, Epstein J.A.

The Sign Tax By-Law

[5]

The Sign Tax by-law imposes an annual tax on signs that advertise goods
    or services not available at the place where the sign is located.

[6]

The key definitions are as follows:

·

THIRD PARTY SIGN - A Signwhich advertises, promotes, or directs
    attention to businesses, goods, services, matters or activities that are not
    available at or related to the premises where the Sign is located and has an
    area of greater than 1 square metre.

·

SIGN - Any device, fixture or medium that displays Sign Copy to
    attract attention to or convey information of any kind and shall include its
    supporting structure, Sign Face, lighting fixtures and all other component
    parts.

·

SIGN COPY - Any colour graphic, logo, symbol, word, numeral,
    text, image, picture or combination thereof displayed on a Sign Face

[7]

The tax is payable annually on the earlier of a specified date or
    a date prior to the issuance of a permit for the sign. The tax is imposed on
    the owner, defined as the person who owns and controls the display of Sign
    Copy rather than the owner of the sign itself, making the tax payable by the
    party who owns or controls the display. There are five tax rates that depend on
    the size, type and physical properties of the sign. Although the tax is payable
    only where a sign displays Sign Copy, the amount of the fixed annual tax is not
    related to, or determined by, the advertising sold by the owner or the revenue
    derived by the owner from the sale of advertising.

[8]

In his very comprehensive and thoughtful reasons, the application
    judge carefully considered and analyzed Torontos Sign Tax by-law. He fully
    explored the evidence of the process that led to the enactment of the by-law.
    He also carefully reviewed the evidence relating to the businesses of Pattison
    and OMAC and of the impact the tax would have on their businesses. As I agree
    with his analysis of the evidence and his rejection of the arguments that the
    by-law should be quashed on the grounds that the tax is indirect and is
    discriminatory, this portion of my reasons will be relatively brief.  I do,
    however, respectfully disagree with the application judges holding that signs
    existing at the time the Sign Tax by-law was enacted are protected by a
    grandfathering clause which exempts them from being subject to the tax.

ANALYSIS

(1)

Does the Sign Tax by-law impose an indirect tax?

[9]

It is not disputed that Toronto has no authority to impose an
    indirect tax. The
City of Toronto Act,
s. 267 only allows Toronto to
    impose a tax if the tax is a direct tax. Section 92.2 of the
Constitution
    Act
, 1867 limits the authority of the province, and therefore
    municipalities in the exercise of their delegated powers, to the imposition of
    direct taxation.

[10]

Pattison
    and OMAC submit that they cannot survive in the outdoor sign advertising
    business unless they can pass on the economic burden of the tax by increasing
    advertising rates or reducing the rents paid to landowners. They argue this
    practical reality makes the tax indirect.

[11]

In my view, the application judge correctly rejected this
    submission. The courts have consistently adopted John Stuart Mills classic
    distinction between a direct and an indirect tax in his 1848 treatise,
Principles
    of Political Economy
, Book V, c. III at p. 371:

A direct tax is one which is demanded from the very persons who
    it is intended or desired should pay it. Indirect taxes are those which are
    demanded from one person in the expectation and intention that he shall
    indemnify himself at the expense of another: such as the excise or customs.

[12]

See, for example, Canadian
Industrial Gas & Oil Ltd. v.
    Government of Saskatchewan et al.
, [1978] 2 S.C.R. 545 at p. 581.

[13]

It is well-established in the case law, however, that the legal
    definition of an indirect tax is not to be determined on the basis of pure
    economics or on the basis of the particular financial circumstances of the
    parties affected by the tax. The reason is obvious: if the argument of Pattison
    and OMAC were accepted, virtually every tax would be an indirect tax. Every
    business that bears a tax will treat the tax as a cost that must be factored
    into the price charged for its products. This natural tendency of every
    taxpayer cannot, and does not, automatically make the tax an indirect tax.

[14]

One of the most frequently cited and helpful definitions of an
    indirect tax is that articulated by Rand J. in
Canadian Pacific Railway Co.
    v. Saskatchewan (Attorney General)
, [1952] 2 S.C.R. 231 at pp. 251-52:

If the tax is related or relatable, directly or indirectly, to
    a unit of the commodity or its price, imposed when the commodity is in course
    of being manufactured or marketed, then the tax tends to cling as a burden to
    the unit or the transaction presented to the market.

[15]

I agree with Torontos argument that the third party sign tax
    simply does not fit this definition. The tax is not tied to the price of, or
    the revenue from, the advertising. It is a flat annual tax imposed on the sign
    owner. It is not a tax on the commodity sold by the sign owner, and it is not
    imposed on, rated, or rateable to, a unit of the commodity or its price. It is
    not imposed on a commodity in the course of production or marketing and
    therefore it cannot cling as a burden to the unit or transaction as it is
    presented to the market. The fact that the tax is triggered by the presence of
    Sign Copy and that the amount of tax is determined by a classification system
    based on size, type and physical properties does not make it a tax on a unit of
    sale or production. In the application judge's words, at para. 108:

[T]he tax is levied on any device which displays a message
    advertising goods or services at a location other than where the device is
    located. To be sure, the device, to be taxable, must display a message. But
    that does not change the nature of the tax itself, which is a tax on the
    device. The tax does not vary with the volume or nature of the advertising
    copy displayed.

[16]

The appellants place considerable emphasis on the point that the
    nature of a tax is to be assessed according to its general tendency. They say
    that because, as a matter of business economics, they must pass on the burden
    of the tax, its general tendency is to be an indirect tax. However, as the
    application judge correctly held, that argument has been consistently rejected
    in the case law: see
Canadian Pacific Railway Co. v. Saskatchewan (Attorney
    General)
[1952] 2 S.C.R. 231;
New Brunswick (Minister of Finance) v.
    Simpson-Sears Ltd.
[1982] 1 S.C.R. 144, at p. 161-3; G. V. La Forest,
The
    Allocation of Taxing Power Under the Canadian Constitution
, 2nd ed. (Toronto:
    Canadian Tax Foundation, 1981), at p. 83; Peter Hogg, Constitutional Law of
    Canada, 5th ed., looseleaf, (Toronto: Carswell, 2010), at ch. 31.2.

[17]

I agree with and adopt the following passage from the application
    judges reasons rejecting this argument, at para. 95:

The fact that sign owners may recoup the tax in their overall
    pricing structure, competitive and other factors permitting, is no ground for
    classifying the tax as an indirect tax. The fact that the tax is a cost of
    carrying on business which may compel the sign owners to try to recover it from
    customers does not mean that it is, for constitutional purposes, not exacted
    from the very person who it is intended and expected would pay it.

[18]

In
Reference re Quebec Sales Tax
, [1994] 2 S.C.R. 715 at
    pp. 725-27, the Supreme Court held that the fact that the taxed party may seek
    to pass on the economic consequences of the tax, more or less successfully, is
    not the defining feature of the legal passing on requirement. The legal
    nature of the tax is to be assessed by asking the question posed by Rand J. as
    stated above: does the tax cling as a burden to the unit of production in
    the sense that its amount attaches to the good and moves together with the good
    through the chain of supply? To repeat, the annual tax at issue here may
    increase Pattisons and OMACs cost of doing business and those parties may
    therefore charge more for the product they sell. However, the annual tax is not
    imposed on a unit of advertising space sold by the appellants and it lacks the
    clinging quality that is the hallmark of an indirect tax.

[19]

The
    Sign Tax by-law is distinguishable from the tax at issue in
Ontario Home
    Builders Association v. York Region Board of Education
, [1996] 2 S.C.R.
    929 which dealt with a levy on new residential dwelling units to cover
    education capital costs. The levy, imposed on the developer, was determined by
    the number of units being sold. For that reason, it was found to fit the
    definition of an indirect tax in that it was rated to a unit of the commodity,
    imposed when the commodity is in course of being marketed, and would therefore
    naturally cling as a burden to the unit or the transaction presented to the
    market.

[20]

I
    agree with Toronto that the tax at issue here is very similar to the annual fee
    imposed on signs that was at issue in
Urban Outdoor Trans Ad. v.
    Scarborough (City)
52 OR (3d) 607, at para. 39:

The annual fees involved in this case, if not fees, are similar
    to a land tax and, in my view, would more properly be considered to be direct
    taxation.  The annual fee is paid in relation to permanent fixtures within
    the City.  It is not tied to the number of times that the billboard space
    is sold to an advertiser.  The annual fee is not targeted at any
    commodity.  These billboards are used as part of national advertising
    campaigns.  The fees do not cling as a burden to these advertising
    campaigns.  There was no evidence that the annual fee was demanded from
    the sign companies in the expectation and intention that they could indemnify
    themselves at the expense of these national advertisers.  The fact that
    the companies might attempt to recoup the fee in their overall pricing
    structure did not make it an indirect tax.  [citations omitted]

[21]

I
    conclude, accordingly, that the application judge did not err in finding that
    the Sign Tax by-law did not impose an indirect tax.

(2)

Is the by-law discriminatory?

[22]

The
    Sign Tax by-law contains a long list of exemptions for various signs including
    signs owned by the Crown, Crown corporations, boards and commissions, education
    boards, universities and other post-secondary institutions, hospitals, nursing
    homes and the City of Toronto: see s. 771-78.

[23]

Pattisons
    attack on the by-law as discriminatory focuses on the exemption for an Owner
    who has entered into a revenue sharing agreement with the City of Toronto.
    Toronto has a revenue sharing agreement with Astral Media Outdoor (Astral),
    Pattisons competitor, whereby Astral supplies for public use street
    furniture  transit shelters, benches, garbage containers, public washrooms
    and information kiosks - and is permitted to sell space on these structures for
    advertising. Toronto receives not only the benefit to its residents of the
    facilities provided by Astral but also a share of the advertising revenue. This
    represents a significant source of revenue for Toronto.

[24]

Pattison
    complains that Astral has an unfair competitive advantage because it does not
    have to pay the third party sign tax. This, Pattison submits, constitutes a
    form of discrimination that renders the by-law vulnerable to attack.

[25]

The
    application judge properly focussed on the applicable legal test for municipal
    discrimination laid down by the Supreme Court of Canada in
Shell Canada
    Products Ltd. v. Vancouver (City)
, [1994] 1 S.C.R. 231, at p. 259:

The rule pertaining to municipal discrimination is essentially
    concerned with the municipalitys power. Municipalities must operate within the
    powers conferred on them under the statutes which create and empower them.
    Discrimination itself is not forbidden. What is forbidden is discrimination
    which is beyond the municipalitys powers as defined by its empowering statute.
    Discrimination in this municipal sense is conceptually different from
    discrimination in the human rights sense; discrimination in the sense of the
    municipal rule is concerned only with the ambit of delegated power.

[26]

In
    my view, the application judge correctly concluded that Pattison failed to
    demonstrate that the exemption for revenue sharing arrangements amounts to
    discrimination under that test.

[27]

The
City of Toronto Act
, s. 267 specifically authorizes Toronto to provide
    for exemptions from taxes. Section 10(1) provides that a by-law under this Act
    may be general or specific in its application and may differentiate in any way
    or on any basis the City considers appropriate. The application judge
    carefully considered the evidence as to the rationale for the revenue sharing
    exemption. He found that the exemption was not arbitrary or improperly
    motivated and that it was rationally connected to a legitimate municipal
    purpose.

[28]

The
    application judge described the Sign Tax by-law, at para. 142, as one of
    several policy initiatives relating to signs and billboards and that, while
    seeking to raise revenues, the City also had to balance a number of competing
    interests, claims and other policy objectives. These policy objectives include
    not only raising revenue for municipal purposes, but also controlling and
    regulating the display of signs and enhancing the quality and character of
    shared public spaces. The revenue sharing exemption allows Toronto to enter an
    arrangement that significantly benefits the city and its residents. Toronto is
    able to gain both substantial revenue and the provision of physical structures
    and facilities for the use and enjoyment of its residents that also enhance the
    citys visual and physical qualities.

[29]

The
    fact that this arrangement may give Astral a competitive advantage over
    Pattison renders neither the by-law nor the exemption vulnerable to attack. The
    revenue sharing agreement with Astral is simply a different arrangement, fully
    authorized by the Act and the by-law, that permits Toronto to advance and
    achieve legitimate municipal objectives.

(3)

Are signs that existed on the date the by-law was enacted exempt from
    the tax?

[30]

OMAC
    submits that existing signs were grandfathered and not subject to the tax
    because of the
City of Toronto Act
, s. 110.

Advertising
    devices

110.
(1)  A
    City by-law respecting advertising devices, including signs, does not apply to
    an advertising device that was lawfully erected or displayed on the day the
    by-law comes into force if the advertising device is not substantially altered,
    and the maintenance and repair of the advertising device or a change in the
    message or contents displayed is deemed not in itself to constitute a
    substantial alteration.

Lien for
    costs and charges

(2)  All costs and charges incurred by the City for
    the removal, care and storage of an advertising device that is erected or
    displayed in contravention of a City by-law are a lien on the advertising
    device that may be enforced by the City under the
Repair and Storage Liens
    Act
.

[31]

The
    application judge accepted OMACs argument. He held, at para. 152, that the
    narrow question of interpretation was whether the Sign Tax by-law was a
    by-law respecting advertising devices, including signs and that the answer
    is unequivocally yes. The application judge noted that the phrase in respect
    of had consistently been given very wide scope. He rejected Torontos argument
    that properly read, s. 110 only applied to by-laws regulating or restricting
    signs, stating, at paras. 159-60, that if the legislature had intended to limit
    the reach of s. 110, more specific language to that effect was required.

[32]

Toronto
    appeals the application judges determination and argues that s. 110 is
    nothing more than a non-conforming use provision intended to apply to by-laws
    enacted pursuant to the Citys authority to regulate signs. The reach of s. 110,
    according to Toronto, does not extend to exempt owners of existing signs from
    paying the tax imposed by the Sign Tax by-law. The Sign Tax by-law is a measure
    enacted pursuant to the Citys authority to raise revenue. It does not render
    unlawful any sign that was, before its enactment, lawfully erected or displayed
    and therefore s. 110 has no application.

[33]

While
    I agree with the application judge that the word respecting is ordinarily
    given broad meaning, it is not the only or, in my view, the governing word in
    s. 110. Section 110 must be read as a whole and in the context of the rest of
    the Act. There are several aspects of the wording of s. 110 that, when read in
    the light of the sections apparent purpose and other relevant provisions of
    the Act, satisfy me that it does not apply to the Sign Tax by-law.

[34]

I
    take as my starting point the source of Torontos authority to enact the Sign
    Tax by-law. That authority is to be found in s. 267(1) of the
City of
    Toronto Act
which gives the City the power to impose a tax in the City
    provided the by-law is a direct tax and satisfies certain criteria specified in
    s. 267(3). As stated in its preamble, the Sign Tax by-law was enacted for the
    purpose of supplementing the revenue of the City.

[35]

I
    agree with Toronto that, given its revenue raising purpose, the Sign Tax by-law
    was not and could not have been validly enacted under the Citys authority,
    conferred by s. 8(2) 10, to pass by-laws respectingStructures, including
    fences and signs. That is made clear by s. 13 which expressly states that s. 8
    does not authorize the City to impose any type of tax. Section 8(2) 10 is,
    however, the source of legislative authority for the enactment of the Sign
    Regulation By-law, a by-law which, as its name suggests, prescribes detailed
    standards for signs and renders signs that do not comply with those standards unlawful.
    The Sign Regulation by-law explicitly incorporates s. 110(1) of the Act,
    protecting from its reach non-conforming signs that were in existence at the
    time it was enacted.

[36]

The
    language relied on by OMAC in s. 110 specifically tracks the wording of the
    power to regulate signs conferred by s. 8(2). That section, as I have noted,
    authorizes the City to pass by-laws
respecting
signs. In my view, by
    using those very words in s. 110, the legislature indicated an intention to
    relate the grandfathering effect of s. 110 to regulatory by-laws enacted
    pursuant to s. 8(2). The Sign Tax by-law is not a by-law respecting signs
    pursuant to s. 8(2). It is a by-law to impose a tax in the City pursuant to
    s. 267(1). The fact that it applies to or affects signs does not make it a
    by-law
respecting
signs within the meaning of the relevant
    power-conferring statutory provisions.

[37]

More
    generally, the language of s. 110 clearly indicates that it was enacted to deal
    with the unfairness of subjecting existing signs to newly enacted regulatory
    standards. It is a classic example of a legal non-conforming use provision that
    is designed to protect a property owner who has erected a structure in reliance
    on existing municipal standards from being subjected to standards that did not
    exist at the time the structure was erected. See, for example, Ian MacF. Rogers
    and Alison Scott Butler.
Canadian Law of Planning and Zoning
,
    loose-leaf, 2nd ed. (Toronto: Carswell, 2009), at para. 6.2.1:

[38]

Section
    110 operates to exempt signs that were
lawfully
erected or displayed
    on the day the by-law comes into force. The word lawfully indicates that its
    purpose is to deal with the regulation of signs and the application of the
    standards that the City has prescribed for lawful signs. Similarly, the
    reference to substantial alteration indicates that the purpose of s. 110 is
    to deal with the problem of changing standards in relation to existing uses, an
    issue commonly encountered with non-conforming uses. Subsection 110(2), allows
    the City to recover the cost of removing non-complaint signs, which confers a
    power that coincides with the regulation of signs and the prescription of
    regulatory standards. In my view, the references to signs that were lawfully
    erected or displayed, to substantial alteration and to recovering the cost
    of removal of non-compliant signs all point to regulation of signs, not
    taxation.

[39]

I
    also agree with the submission that the powers conferred by the
City of
    Toronto Act
should be read in a generous fashion so as to enable the City
    to meet the needs of its residents and to provide them with good government. To
    apply the legal non-conforming use provision to the Sign Tax by-law would
    represent a significant limitation on the powers of the City to raise revenue.
    There is nothing in the provisions of the Act conferring the power to impose
    taxes limiting that power by excluding the imposition of taxes on things that
    already exist at the time a taxing by-law is enacted. In my respectful view, to
    read s. 110 as limiting the Citys revenue generating powers in the manner
    suggested by OMAC is not required by the specific language of s. 110. Moreover,
    when read in the light of ss. 8(2) and 267(1), such a reading would be contrary
    to the overall purpose and scheme of the Act.

[40]

For
    these reasons, I conclude that the application judge erred in holding that
    signs existing at the time the Sign Tax by-law was enacted are grandfathered
    and not subject to tax. Accordingly, I would allow Torontos appeal on this
    issue.

[41]

Given
    my conclusion on that issue it is not necessary for me to consider the related
    issue of the actual date the Sign Tax by-law came into effect.

Disposition

[42]

For
    these reasons, I would dismiss the appeals of Pattison and OMAC, but allow
    Torontos appeal from that portion of the judgment holding that the
City of
    Toronto Act
, s. 110, exempts from tax signs existing at the date the Sign
    Tax by-law was enacted. I agree with the Epstein J.A. that the Torontos appeal
    against the sealing order should also be allowed.

[43]

If
    the parties are unable to agree as to costs, we will receive brief written
    submissions.

Robert J. Sharpe J.A.

I agree K. Feldman
    J.A.

Epstein J.A.:

[44]

I
    am in agreement with the reasons and disposition of my colleague, Sharpe J.A.,
    concerning the first three issues. Consequently, my reasons will address only
    the fourth issue.

[45]

In
    my view, the application judge erred in law by granting the sealing order. I
    would allow the City of Torontos appeal on this issue.

[46]

Pattisons
    evidence included financial information pertaining to its outdoor sign
    inventory that Pattison identified as being proprietary, confidential and
    commercially sensitive.  At the outset of the hearing, the parties entered into
    a confidentiality agreement that allowed Pattison to produce this documentation
    on a confidential basis.  This agreement was without prejudice to Pattisons
    right to seek a sealing order from the court or the Citys right to resist such
    an order.

[47]

In
    the course of the hearing of the application neither counsel made specific
    reference to the documents in issue.  However, they were marked as exhibits,
    and certain witnesses for Pattison relied on the information in the documents
    to support the evidence they provided to the court in affidavits sworn in
    support of Pattisons challenge to the Sign Tax By-Law.

[48]

At
    the conclusion of the hearing, Pattison moved for an order sealing the
    documents from public access. No members of the media were notified of the
    application.

[49]

The
    foundation of Pattisons sealing order request, as described by the application
    judge, is that the public dissemination of this financial information would
    cause significant harm to its competitive position and business. The City took
    issue with this and also submitted that the information was necessary for the
    public to understand the outcome of the application.

[50]

The
    application judge, in his reasons for granting the order, made no reference to
    the test for granting a confidentiality order.  Rather, he responded to the
    competing arguments and concluded that Pattison had an important interest in
    the preservation of its proprietary and confidential information and that
    because the evidence in issue was not determinative of the constitutional
    question, keeping it confidential would not adversely affect the publics
    ability to comprehend the proceedings and their outcome.

[51]

A
    request to have exhibits sealed implicates the open court principle, and must
    be approached with great care.  The application judge was required to apply the
    two-step approach identified in a series of cases from the Supreme Court of
    Canada involving non-publication orders and/or sealing orders:  see
Toronto
    Star Newspapers Ltd. v. Ontario
, 2005 SCC 41, [2005] 2 S.C.R. 188, at
    para. 26;
Sierra Club of Canada v. Canada (Minister of Finance)
, 2002
    SCC 41, [2002] 2 S.C.R. 522, at paras. 45-46;
R. v. Mentuck
, 2001 SCC
    76, [2001] 3 S.C.R. 442, at para. 32.  This approach is commonly referred
    to as the
Dagenais/ Mentuck
test.

[52]

In
Mentuck
, Iacobucci J. said, at para. 32:

A publication ban should only be ordered when:

(a)  such an order is necessary in order to prevent a
    serious risk to the proper administration of justice because reasonably
    alternative measures will not prevent the risk; and

(b)  the salutary effects of the
    publication ban outweigh the deleterious effects on the rights and interests of
    the parties and the public, including the effects on the right to free
    expression, the right of the accused to a fair and public trial, and the
    efficacy of the administration of justice.

[53]

Under
    the controlling jurisprudence, before the court can address the degree to which
    the publics interests may be harmed by the order, the party seeking the order
    must present evidence that demonstrates that the order is necessary to prevent
    a serious risk to an important interest expressible in terms of a public
    interest in confidentiality: see
Sierra Club
, at para. 55.

[54]

It
    has been held that
Mentucks
requirement that non-publication and
    sealing orders are potentially justifiable only if necessary in order to
    prevent a serious risk to the proper administration of justice, may refer to a
    serious risk to public interests other than those that fall under the broad
    rubric of the proper administration of justice:
Sierra Club of
    Canada
, at paras. 46-51, 55.  However, the interest jeopardized must
    have a public component.  As Doherty observed in
M.E.H. v. Williams
,
    2012 ONCA 35, at para. 26, there are other interests that may be considered
    essential components of the proper administration of justice, such as access
    to the courts.

[55]

However,
    as was observed in
Williams
, the focus must be on how the motion is
    framed.  Where the interest in confidentiality engages no public component, the
    inquiry is at an end.  There is no basis upon which to proceed to the second
    branch of the test where factors such as the nature of the orders impact on
    public access and other societal interests become valid considerations.

[56]

If
    the issue relied upon to seek a confidentiality order does involve a public
    component, the evidence must be carefully examined.   The evidence relied upon
    to satisfy the first branch of the test must be convincing and subject to
    close scrutiny and meet rigorous standards: see
R. v. Canadian
    Broadcasting Corp.
, 2010 ONCA 726, 102 O.R. (3d) 673, at para. 40;
R.
    v. Toronto Star Newspapers Ltd.
(2003), 67 O.R. (3d) 577 (C.A.), at para.
    19, affd 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 41;
Williams
, at
    para. 34; see also
Ottawa Citizen Group Inc. v. R.
(2005), 75 O.R.
    (3d) 590 (C.A.), at para. 54.  This demanding evidentiary standard is in
    keeping with the well-recognized serious implications of the order.

[57]

Pattison
    framed its need for the sealing order on the basis that disclosure would
    imperil its commercial interests.  The only evidence in support of this
    assertion is a statement in the affidavit of Randy Otto that the information
    under seal is highly sensitive and confidential and can be used by Pattison
    Outdoors competitors, advertisers and land owners to Pattison Outdoors
    disadvantage.

[58]

In
    my view, this evidence falls short of allowing Pattison to get past the first
    branch of the
Mentuck
test.  There is no indication of how the
    information could be used against Pattisons business or how great a risk
    disclosure would present.

[59]

Absent
    a supportable finding sufficient to pass the first branch of the test, the
    order could not have been made under the controlling jurisprudence.

[60]

I
    would therefore allow the Citys appeal on this issue and set aside the sealing
    order.

G.J.
    Epstein J.A.

Released: April 02, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
Portuguese
    Canadian Credit Union v. 1141931 Ontario Ltd.,
2012 ONCA 274

DATE:  20120430

DOCKET: C54631 & C54632

Blair, Lang and Hoy JJ.A.

BETWEEN

Portuguese Canadian Credit Union Ltd. by
    its Liquidator Deposit Insurance Corporation of Ontario

Plaintiff

and

1141931 Ontario Ltd., INKAS Corporation, INKAS
    Finance Corp., 2000007 Ontario Inc., Margarita Simkin and David
    Khazanski

Defendants

AND BETWEEN

1141931 Ontario Ltd., INKAS Corporation,  INKAS
    Finance Corp., 2000007 Ontario Inc.

Plaintiffs by Counterclaim (Appellants)

and

Portuguese Canadian Credit
    Union Ltd. by its Liquidator, Deposit Insurance Corporation of Ontario, Deposit
    Insurance Corporation of Ontario, Financial Services Commission of Ontario
and the Office of the Superintendent of Financial Institutions Canada

Defendants by Counterclaim (
Respondents
)

Howard W. Winkler, for the appellants

Jane M. Bachynski and Karen Perron, for the respondent,
    Deposit Insurance Corporation of Ontario

Dona M.H. Salmon, for the respondent, Financial Services
    Commission of Ontario

Heard: April 24, 2012

On appeal from the order of Justice Peter A. Cumming of
    the Superior Court of Justice, dated October 18, 2011.

ENDORSEMENT

[1]

The Portuguese Canadian Credit Union Ltd. (PCCU), by its Liquidator,
    Deposit Insurance Corporation of Ontario (DICO), sued the appellants, referred
    to as INKAS, for monies INKAS allegedly owed pursuant to credit facilities
    extended by PCCU to INKAS.  INKASs former vice president of operations
    apparently stole $30 million of the monies advanced by PCCU to INKAS.

[2]

In its counterclaim, INKAS alleges that PCCUs losses resulted from the
    failure of the Financial Services Commission of Ontario (FSCO) and DICO to
    properly exercise their operational powers in breach of an alleged duty of care
    they owed to PCCU.  As a result, INKAS seeks contribution and indemnity from
    FSCO and DICO for any amount found due and owing by INKAS to PCCU in the main
    action.  In essence, INKAS attempts to shift responsibility for the fraud
    committed by its former employee to FSCO and DICO.

[3]

DICO and FSCO each brought a Rule 21 motion to strike the counterclaim.
    The motion judge granted both motions on the basis that the pleadings do not
    disclose a reasonable cause of action against either FSCO or DICO.  INKAS
    appeals.

[4]

In our view, the appeals can be disposed of on three bases.

FSCO Is Not An Entity Capable of Being Sued

[5]

First, we agree with the motion judge, Cumming J., that FSCO is not an
    entity capable of being sued.  As the motion judge observed at paras. 14-15 of
    his reasons:

FSCO is a non-corporate entity without the express or implied
    capacity to be sued. In
Ontario v. Gratton-Masuy Environmental Technologies
    Inc.
(2010), 101 O.R. (3d) 321 (C.A.), at paras. 36-81, the Court of
    Appeal considered the liability to suit of statutory entities, relying upon the
    six categories articulated by Justice Houlden in
Westlake v. The Queen in
    Right of the Province of Ontario
, [1971] 3 O.R. 533 (H. Ct. J.), aff'd
    [1972] 2 O.R. 605 (C.A.), aff'd (1973), 33 D.L.R. (3d) 256 (S.C.C.). The sixth
    category relates to:

Non-corporate bodies which are not by the terms of the
    statute incorporating them or by necessary implication liable to be sued in an
    action for damages, but who are legal entities in that their actions may be
    reviewed in proceedings brought against them by way of the extraordinary remedies
    of certiorari, mandamus and prohibition.

In my view, FSCO fits within this category. It is a
    non-corporate entity without the express or implied capacity to be sued. The
FSCO
    Act
establishes FSCO as a commission, not a corporation, and does not
    contain any terms rendering it expressly or impliedly liable to be sued.

[6]

This conclusion was not appealed and, in our view, could not have been
    successfully challenged.  We agree with the motion judge that there can be no
    sustainable claim against FSCO.

DICO Has Statutory Immunity

[7]

Second, the motion judge correctly concluded that DICO has statutory
    immunity.
Section 253(1) of
the
    Credit Unions and Caisses Populaires Act
,
1994
, S.O. 1994, c. 11 (the CUCPA) states:

No action or other proceeding for damages shall be instituted
    against ... [DICO] ... for any act done in good faith in the execution or
    intended execution of a duty of ... [DICO] or for any neglect of default in the
    execution, in good faith, of that duty.

[8]

As the motion judge observed, that immunity
extends to ... third or subsequent party proceedings and proceedings
    for contribution and indemnity by restitution ... by reason of the
Legislation
    Act, 2006
, S.O. 2006, c. 21, Sched. F, s.
    97, Schedule B, p. 50.

[9]

This immunity protects DICO from acts
    done in good faith in the execution of its duties.  While the appellant
    argues that the counterclaim pleads bad faith, the pleading does no more than
    allege that DICOs breaches of duty demonstrate bad faith  in carrying out
    its statutorily prescribed duties.  This is wholly inadequate to sustain a
    pleading of bad faith.  Bad faith must be pled with particularity:  see
Rules
    of Civil Procedure
, Rule 25.06(8) and
Ontario
    v. Gratton-Masuy Environmental Technologies Inc.
2010 ONCA 501 at paras. 87-89.  The pleading provides no particulars of
    any operational acts or their circumstances that would support the allegation
    of bad faith.

[10]

We see no merit in acceding to the appellants
    argument that the motion judge ought to have granted leave to amend to provide
    particularity.  There is no indication based on the history of this proceeding
    and the lack of response to DICOs demand for particulars that there are
    material facts that the appellants could add that would save the pleading:  see
Piedra v. Copper Mesa Mining
,
2011 ONCA 191 at paras. 94-96.

No Tenable Claim For Contribution and Indemnity

[11]

Third, we agree with the motion judge that the
    appellants claim for contribution and indemnity cannot succeed based on an
    alleged private law duty of care owed by DICO (or FSCO) to PCCU.  We come to
    this conclusion for two reasons.

[12]

First, INKAS bases its claim on allegations that
    DICO failed to oversee and monitor PCCUs processes, personnel, education and
    audits.  However, the CUCPA places no obligation on DICO to undertake these
    discretionary tasks.  Indeed, as the motion judge observed, DICO was not a
    'regulator' of credit unions until the
CUCP Act
was amended with such amendments coming into force on
    October 1, 2009, after the dates material to the proceedings at hand.

[13]

As well, the pleading fails to provide particulars of
    any breaches of any alleged operational duty.  Without particulars of any
    operational duty, a cause of action against DICO based on an alleged private
    law duty of care it owed to PCCU cannot be sustained.

[14]

Second,
    the notion that INKAS is entitled to contribution and indemnity from DICO (or
    FSCO) in the circumstance is untenable in law.  Section 1 of the
Negligence
    Act
, R.S.O. 1990 c. N.1, states:

Where damages have been caused or contributed to by the fault
    or neglect of two or more persons, the court shall determine the degree in
    which each of such person is at fault or negligent, and, where two or more
    persons are found at fault or negligent, they are jointly and severally liable
    to the person suffering loss or damage for such fault or negligence, but as
    between themselves, in the absence of any contract express or implied, each is
    liable to make contribution and indemnify each other in the degree in which
    they are respectively found to be at fault or negligent.

[15]

However,
    these provisions have no application in the present circumstances for the
    simple reason that neither in the contract action by PCCU against INKAS nor in
    the INKAS counterclaim for damages against PCCU and FSCO/DICO is INKAS a tortfeasor.
    In the former, INKAS is a debtor being asked to repay its line of credit; in
    the latter, INKAS is essentially a plaintiff seeking to recover damages for the
    loss of the stolen monies.  The appellants claim for contribution and indemnity
    is, therefore, misconceived regardless of whether there is a duty of care owed
    as between FSCO/DICO and INKAS or as between FSCO/DICO and PCCU.

[16]

In
    the contract action, INKAS alleges that PCCUs losses are the result of PCCUs
    negligence and also of the negligence of FSCO/DICO.  Fault and contributory
    negligence are not factors in a contract action however, and are not a defence
    to the breach of contract claim.  In any event, it is PCCU and the regulators
    (FSCO/DICO) who are the joint tortfeasors in the scenario put forward by the
    appellants.  Any contribution and indemnity considerations would flow between those
    two entities. INKAS is not saying
it
was
    negligent, nor is PCCU.

[17]

In
    the counterclaim, INKAS seeks contribution and indemnity against FSCO and DICO
    for any amounts found due and owing to PCCU, blaming them for the loss of the
    $30 million.  This claim cannot succeed. INKAS is not a tortfeasor in the
    counterclaim scenario; it is the plaintiff and victim.  Again, contribution and
    indemnity claims in this context would be between PCCU and FSCO/DICO.  Any
    negligent claim by INKAS against FSCO/DICO must therefore be a direct claim,
    and the appellants do not contest the motion judges conclusion that no such
    claim can exist in law on proximity grounds.

[18]

Finally,
    we see no basis on which to grant leave or, if leave were granted, to interfere
    with the motion judges exercise of discretion in his costs award to DICO.

Disposition

[19]

Accordingly,
    the appeals are dismissed.  The successful respondents are entitled to their
    costs of the appeal:  FSCO in the amount of $7,200 and DICO in the amount of
    $20,000, each inclusive of disbursements and all applicable taxes.

R.A. Blair J.A.

S.E. Lang J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Quick
    Credit v. 1575463 Ontario Inc. (Yorktown Auto Collision), 2012
    ONCA 221

DATE:  20120404

DOCKET: C53229

Doherty, LaForme JJ.A. and Turnbull J. (
ad hoc
)

BETWEEN

Quick Credit also known as 1389060 Ontario
    Limited

Plaintiff (Respondent)

and

1575463 Ontario Inc., operating as Yorktown Auto
    Collision, Bramalea Imported Cars Limited, Yorktown Auto Collision Limited,
    Yorktown Auto Collision (2000) Inc., formerly known as 1313337 Ontario Limited,
The Authentic Group Inc.
, Metcon International
    Plastics Limited, Antonio Ceccarelli also known as Tony Ceccarelli,
Loreto John Ceccarelli also known as John Ceccarelli and as
    Loretto Ceccarelli, Gabriele Ceccarelli also known as Gabriel Ceccarelli and as
    Gabe Ceccarelli
, and 70 Lepage Crt Inc.

Defendants (
Appellants
)

Bryan B. Skolnik, for the defendants (
appellants
)

H. Richard Bennett, for the plaintiff (respondent)

Heard:  April 3, 2012

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated December 31, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We would dismiss the appeal.  The terms of the promissory note
    acknowledge that consideration was given and the evidence of Mr. Eisen supports
    the finding that he forebear making demand on the guarantees in exchange for receiving
    the promissory note.

[2]

The material on the motion provided a basis for a full appreciation of
    the issues relevant to the interpretation of the terms of the promissory note.
    We agree with the motion judges interpretation as the only commercially viable
    interpretation.

[3]

We cannot accept the argument that there is a triable issue on the
    question of whether demand was made on the guarantees at some point prior to
    the written demand.  The guarantees contemplate a written demand.  In the
    evidence, the lender did not make demand on the guarantees during the
    negotiations which began after the primary lender failed to make the required
    payments.

[4]

The appeal is dismissed.

[5]

Costs to the respondent in the amount of $12,000.  This includes costs
    referable to the earlier motions, disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Beckles, 2012 ONCA 267

DATE: 20120425

DOCKET: C50630

Rosenberg, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Anthony Fitzgerald Beckles

Appellant

Mark C. Halfyard, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally: April 18, 2012

On appeal from the conviction entered on March 18, 2008
    and the sentence imposed on May 20, 2008 by Justice Horkins of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

Assuming that the trial judge was right to find that there was a
    violation of s. 8 when the second question was asked, we are satisfied that the
    trial judge did not err in refusing to exclude the statement. Even though
R.
    v. Grant
, [2009] 2 S.C.R. 32,
has substantially changed the s. 24(2) test, the trial judges findings of fact
    and characterization of the nature of the violation are entitled to deference.

[2]

Applying the
Grant
framework, the appellant has not shown that
    the evidence should be excluded. On the state of the law in 2006, when this
    stop occurred, it was open to find that the officer was not acting in bad
    faith. As the law then stood, the appellant was not entitled to be given his
    right to counsel. The officers second question naturally flowed out of the
    appellants odd response to the first, proper, question. As in
Grant
,
    the questioning was not abusive and the officers mistake as to what questions
    he was entitled to ask was understandable. The seriousness of the breach favours
    admission of the evidence.

[3]

As to the impact on the
Charter
protected interest, we agree
    that this favours exclusion. While the expectation of privacy in a vehicle is
    reduced, this was an intrusion into the appellants right against self-incrimination.

[4]

As to the third inquiry, this favours admission. This statement was
    shown to be reliable and was essential to prove the case. The societal interest
    in adjudication on the merits favours admission.

[5]

Balancing the three factors, the evidence should be admitted. This is a
    case much like
Grant
. The state of the law was uncertain at the time.
    The police conduct was not egregious and the evidence was reliable and of
    considerable value.

[6]

Accordingly, the appeal is dismissed.

Signed:        M.
    Rosenberg J.A.

E.E. Gillese J.A.

 Alexandra
    Hoy