COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Schouten, 2016 ONCA 872

DATE: 20161118

DOCKET: C61710

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Andrew Schouten

Respondent

Michael Perlin, for the applicant/appellant

Sean J. May, for the respondent

Heard: October 11, 2016

On appeal from the order of the Summary Conviction Appeal
    Court dated January 14, 2016 by Justice Brian W. Abrams of the Superior Court
    of Justice, with reasons reported at 2016 ONSC 378, upholding the acquittal
    entered on September 4, 2014, by Justice Richard T. Knott of the Ontario Court
    of Justice.

Simmons J.A.:

A.

Introduction

[1]

Following a trial before an Ontario Court judge, the respondent was
    acquitted of driving with a blood alcohol level over the legal limit.

[2]

The trial judge held that, although a police officer smelled alcohol on
    the respondents breath during a roadside traffic stop, taking account of all
    the circumstances, the police officer lacked reasonable grounds to suspect the
    respondent had alcohol in his body. Accordingly, by taking a roadside breath
    sample, the police officer violated the respondents rights under s. 8 of the
Canadian
    Charter of Rights and Freedoms
. In the result, the trial judge excluded
    breath sample evidence from the trial and acquitted the respondent.

[3]

On a Crown appeal to the Superior Court, sitting as a summary conviction
    appeal court, the acquittal was upheld.

[4]

The Crown seeks leave to appeal, and if leave is granted, appeals the
    acquittal. The question of law
[1]
raised is whether the summary conviction appeal court, and the trial judge,
    erred in concluding that the facts as found by the trial judge did not amount
    at law to reasonable grounds to suspect that the respondent had alcohol in his
    body under s. 254(2) of the
Criminal Code
.

[5]

The respondent argues that leave to appeal should be denied as the issue
    raised is not of general significance to the administration of justice and the record
    reveals no clear error on the part of either the summary conviction appeal
    court judge or the trial judge.

[6]

For the reasons that follow, I would grant leave to appeal, allow the
    appeal, set aside the respondents acquittal and order a new trial.

B.

Background

(1)

The traffic stop

[7]

During a morning R.I.D.E. program set up in close proximity to the exit
    route of a local motorsports event, a police officer approached the
    respondent's pickup truck and immediately detected an odour of alcohol on the
    respondent's breath.

[8]

The police officer advised the respondent of this observation. The
    respondent indicated he had had his last drink about 10 hours earlier. He did
    not know how much, or what, he had had to drink or when he had fallen asleep
    the night before.

[9]

The police officer made a roadside breath demand. The respondent
    provided a breath sample; the roadside screening device registered a fail.

[10]

The police officer arrested the respondent and charged him with driving
    with over 80 milligrams of alcohol in his body per 100 millilitres of blood.
    Once at the police station, the respondent provided two breath samples, which
    showed concentrations of alcohol per 100 millilitres of blood of 120 and 109
    milligrams respectively.

(2)

The trial

[11]

At trial, the respondent applied under s. 24(2) of the
Charter
to have the evidence of his breath samples excluded, claiming that his rights
    under s. 8 of the
Charter
had been violated because the police officer
    did not have proper grounds for making a s. 254(2) roadside breath demand.

[12]

During his evidence, the police officer testified that he formed a
    suspicion that the respondent had alcohol in his body based on the odour of
    alcohol on the respondent's breath and the respondent's answers to his
    questions. In cross-examination, the police officer acknowledged that the
    respondent displayed no signs of impairment during the officer's dealings with
    him. The officer also testified that he had training as a breath technician. Moreover,
    from his training, he knew the following:

·

if
    someone has a drink, the alcohol would be eliminated from that persons body
    in four to five hours; and

·

even
    when an odour of alcohol is detected, alcohol consumed 10 hours earlier may
    have been eliminated, and one could not say with any certainty that there is
    still alcohol in the persons body.

C.

The trial judges reasons

[13]

On the respondents application to exclude the breath sample evidence,
    the trial judge found a s. 8
Charter

violation and granted the respondents
    application under s. 24(2) of the
Charter
.

[14]

Concerning the s. 8 violation, relying on
R. v. Chehil
, 2013
    SCC 49, [2013] 3 S.C.R. 220, at para. 29,

the trial
    judge noted that reasonable suspicion must be assessed against the totality of the
    circumstances. Although he acknowledged that the police officer smelled alcohol
    on the respondents breath, he concluded that the officers suspicion that the
    respondent had alcohol in his body was not objectively reasonable in all the
    circumstances. He said:

[T]he officer did note the smell of alcohol on the accuseds
    breath, and there was an admission of alcohol consumption. Those facts in
    isolation would be sufficient for the officer to form the reasonable suspicion
    that the accused had alcohol in his body. However, in this case, the accused
    showed no signs of impairment, he was polite and co-operative throughout, and
    followed all of the officers directions without difficulty.

Most importantly, he gave evidence that his alcohol consumption
    had occurred over 10 hours previously. That evidence would explain the smell of
    alcohol on the accuseds breath, but without more it does not mean there was
    alcohol in the accuseds body at the time of detention.

If the accused had shown any sign of impairment, or if there
    was evidence of more recent alcohol consumption, or the accused admitted to
    consuming significant amounts of alcohol, such that there would be suspicion
    that there would still be some alcohol in his body, then the officers
    suspicion would have been reasonable on an objective basis.

In these circumstances, however, I conclude that there was a section
    8
Charter
violation.

[15]

The trial judge excluded the evidence and acquitted the respondent.

D.

The appeal to the summary conviction appeal court

[16]

As I have said, the respondents acquittal was upheld on appeal to the
    summary conviction appeal court.

[17]

In his reasons, the summary conviction appeal court judge quoted from
    this courts decision in
R. v. Lindsay
, [1999] O.J. No. 870. In that
    case, in a brief endorsement, this court held that the smell of alcohol on a
    persons breath is sufficient to found reasonable grounds to suspect the
    presence of alcohol in the persons body. This court also stated that [t]he fact
    that there may be an explanation for the smell of alcohol does not take away
    from the fact that there exists a reasonable suspicion.
[2]

[18]

After referring to
Lindsay
, the summary conviction appeal court
    judge concluded that the facts as found by the trial judge in this case are
    distinguishable from the facts in
Lindsay
for two reasons.

[19]

First, in this case, there was more to the officers evidence then the
    fact that he detected an odour of alcohol on the respondents breath. Rather, the
    trial judge relied on a constellation of objectively discernible facts gleaned
    from the evidence of the officer to find the officer lacked objectively
    reasonable grounds to suspect the presence of alcohol. [S]pecifically: there
    were no signs of impairment; the Respondent was polite and cooperative
    throughout; he followed all of the officers directions without difficulty; and
    the Respondent had consumed alcohol 10 hours previously.

[20]

Second, although the trial judge did not specifically refer to them, the
    trial judge would have been entitled to consider the following additional
    factors in assessing the objective reasonableness of the officers suspicion:

-

the officer was a trained breath technician;

-

in circumstances where the officer was detecting an odour of alcohol,
    and based on the respondents admission that his last drink was 10 hours
    earlier, the officer had agreed that the alcohol would have been eliminated
    from the respondents body; and

-

the officer could not say with any certainty that a person who had
    stopped drinking 10 hours earlier would still have alcohol in their body.

[21]

Therefore, the summary conviction appeal court judge upheld the
    acquittal.

E.

Discussion

[22]

In
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641, this court
    considered the circumstances in which leave to appeal should be granted under
    s. 839 of the
Criminal Code
. This court concluded that leave to appeal
    should be granted sparingly, but may be granted in relation to a question of
    law alone where the issue raised is a matter of general significance to the
    administration of justice and the ground is at least arguable; or where the
    merits appear very strong, even if the issue has no general importance beyond
    the parties.

[23]

I conclude that leave to appeal should be granted and the appeal allowed
    because, in my view, the summary conviction appeal court judge was clearly
    wrong in upholding the finding of a s. 8
Charter
breach.

[24]

The summary conviction appeal court judge gave two reasons for upholding
    the trial judges finding of a s. 8 breach.

[25]

First, while acknowledging that an odour of alcohol alone would have
    been sufficient to found reasonable grounds to suspect the presence of alcohol,
    the summary conviction appeal court judge agreed with the trial judges view
    that the absence of indicia of impairment and the absence of additional
    evidence of consumption rendered the officers suspicion unreasonable.

[26]

It is not necessary that a person show signs of impairment to found a
    basis for making a roadside breath demand. Nor is it necessary that a police
    officer suspect the person is committing a crime. All that is required is that
    the police officer making the demand has reasonable grounds to suspect that a
    person has alcohol in their body: s. 254(2) of the
Criminal Code
;
Lindsay
.

[27]

Moreover, the standard of reasonable grounds to suspect involves
    possibilities, not probabilities:
R. v. Williams
, 2013 ONCA
772,
[2013] O.J. No. 5880,
at para. 22, citing
R. v. MacKenzie
, 2013 SCC 50,
[2013] 3 S.C.R. 250,
at
para. 38;
R. v.
    Chehil
, at para. 27;
R. v. Kang-Brown
, 2008 SCC 18, [2008] 1
    S.C.R. 456, at para 75.

[28]

The absence of the indicia of impairment even when combined with the fact
    that the respondent claimed to have consumed his last drink 10 hours earlier
    did not negate the
possibility
that the respondent had alcohol in his
    system, which was raised by the presence of an odour of alcohol on his breath
    and his admission of consumption.

[29]

The respondent could not tell the officer how much or what he had had to
    drink. Even if the officer believed the respondents statement about when he
    had his last drink, the fact that his
last
drink was 10 hours earlier
    even when combined with the absence of indicia of impairment  did not negative
    the possibility that he still had alcohol in his body. Accordingly, the fact
    that, on the respondents version of the timing of his alcohol consumption, the
    alcohol
may
have been eliminated from his body did not negate the
    reasonableness of the officers grounds for suspecting the presence of alcohol
     the odour of alcohol and the admission of consumption.

[30]

The summary conviction appeal court judges second reason for upholding
    the s. 8 ruling was that the officers evidence about elimination rates
    provided an alternate explanation for the presence of an odour of alcohol on
    the respondents breath. However, in reaching this conclusion, the summary
    conviction appeal court judge misstated the officers evidence in that regard.
    The summary conviction appeal court judge said that the officer agreed, based
    on the respondents admission that his last drink was 10 hours earlier, that
    the alcohol would have been eliminated. However, the officer did not agree that
    alcohol
would
have been eliminated; rather, he agreed that the alcohol
may
have been eliminated. The officers evidence did not therefore
    exclude the possibility that the respondent had alcohol in his body.

[31]

As I have already explained, the fact that, on the respondents version
    of the timing of his alcohol consumption, the alcohol
may
have been
    eliminated from his body did not negate the reasonableness of the officers
    grounds for suspecting the presence of alcohol in the respondents body.

[32]

In my view, the summary conviction appeal court judge and the trial
    judge were clearly wrong in holding otherwise.

F.

Disposition

[33]

Because the Crown requested the summary conviction appeal court to order
    a new trial, the Crown maintained that position in this court. Based on the
    foregoing reasons, leave to appeal is granted, the appeal is allowed, the respondents
    acquittal is set aside and a new trial is ordered.

Released:

NOV 18 2016                                              Janet
    Simmons J.A.

JS                                                               I
    agree G. Pardu J.A.

I
    agree B.W. Miller J.A.

[1]

Under
R. v. Shepherd
, 2009
    SCC 35, [2009] 2 S.C.R. 527, at para. 20, the issue of whether the facts as
    found by the trial judge amount at law to reasonable and probable grounds to
    suspect the individual had alcohol in his body is a question of law.

[2]
This courts decision in
Lindsay
was subsequently affirmed in
R.
    v. Carson
, 2009 ONCA 157, [2009] O.J. No. 660, at para. 1.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2016 ONCA 835

DATE: 20161107

DOCKET: C57221

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harjeet Singh

Appellant

John J. Navarrete, for the appellant

Chris Chorney, for the respondent

Heard: November 4, 2016

On appeal from the conviction entered on January 21, 2013
    by Justice L.C. Pringle of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant Harjeet Singh appeals from his conviction for sexual
    assault by Pringle J. of the Ontario Court of Justice. The conviction was
    entered in January 2013 after a six-day trial in 2012. However, the alleged
    sexual assault (a single assault  a rape) took place on August 16, 1991, 21
    years before the trial.

[2]

The complainant was a 22-year old Filipino nanny in 1991. The appellant
    was a 24-year old man trying to get his pilots licence. The parties had just
    got to know each other in the summer of 1991. The alleged sexual assault took
    place in the home of the complainants employers while they were away. The
    complainant said that she was a virgin at the time and that the appellant, whom
    she had invited over to visit her, raped her. The appellant testified that the
    complainant was not a virgin, that she liked sex, and that, on the night in
    question, she invited him over, dressed provocatively, engaged in consensual
    sex, and explicitly rejected the appellants offer to wear a condom.

[3]

The trial judge believed the complainant and disbelieved the appellant.
    She also found that the supporting testimony of the appellants best friend
    undercut the appellants position. Accordingly, she convicted the appellant.

[4]

The appellant appeals on two grounds.

[5]

First, the appellant contends that the trial judge subjected the defence
    evidence to a more exacting standard of scrutiny than she did the complainants
    evidence.

[6]

In
R. v. Aird
, 2013 ONCA 447, Laskin J.A. said, at para. 39:

The different standards of scrutiny argument is a difficult
    argument to succeed on in an appellate court. It is difficult for two related
    reasons: credibility findings are the province of the trial judge and attract a
    very high degree of deference on appeal; and appellate courts invariably view
    this argument with skepticism, seeing it as a veiled invitation to reassess the
    trial judges credibility determinations.

[7]

There is nothing in this appeal to remove it from the general rule
    described by Laskin J.A. in this passage. In our view, the trial judge, in her
    reasons, treated the appellants and complainants evidence comprehensively and
    fairly. She did not tilt towards the complainant in the manner in which she
    considered the evidence.

[8]

Second, the appellant submits that the trial judge erred by giving too
    much weight and reliability to the complainants testimony. In oral
    submissions, the appellant recast this as an unreasonable verdict argument.

[9]

We do not accept these submissions. The trial judge fully and carefully
    considered the testimony of all three witnesses at the trial. She identified
    problems with the testimony of both the complainant and the appellant. She
    considered their testimony in the context of the reasoning platform set out in
R.
    v. W.(D.)
, (1991), 63 C.C.C. (3d) 397 (SCC). Importantly, she evaluated
    the testimony of the second defence witness, the appellants best friend, and
    demonstrated that it was inconsistent with key features of the appellants testimony.

[10]

The trial judge concluded her judgment in this fashion:

Really, it was a simple tale: Ms. B. thought it was a romance,
    but Mr. Singh thought it was about sex.

Looking at the totality of the evidence, I believed Ms. B.s
    account. Since her evidence proved the elements of a sexual assault beyond a
    reasonable doubt, there must be a finding of guilt.

[11]

In our view, the trial judges treatment of the evidence supports this
    summary and conclusion. There was a clear evidentiary basis for the verdict.

[12]

The appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Refaeli v. Salomon, 2016 ONCA 862

DATE: 20161116

DOCKET: M46902 & M46926

Lauwers J.A. (In Chambers)

BETWEEN

Tamar Refaeli also known as Tami Refaeli

Applicant (Responding Party/
Moving Party by way of cross-motion)

and

Amnon Salomon

Respondent (Moving Party/
Responding party by way of cross-motion)

Frank Lento, for the responding party/moving party by
    way of the cross-motion

Amnon Salomon, acting in person

Raphael Eghan, appearing as
amicus curiae

Heard: October 27, 2016

ENDORSEMENT

[1]

Amnon Salomon moves to extend the time within which he can appeal a
    vesting order granted by Diamond J. of the Superior Court of Justice on August
    5, 2016. Tamar Refaeli, the responding party, moves to dismiss Mr. Salomons motion
    and, in the alternative, she seeks an order for security for costs of the
    appeal. I am obliged to bring some order into what has become a complicated
    morass, largely because of Mr. Salomons persistent refusal to take
    seriously his responsibilities under the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, and this courts orders.

[2]

This is a dispute about the ownership of a property located at 31
    Felicia Court in Thornhill, Ontario. In his endorsement, dated August 10, 2015,
    Diamond J. recognized an Israeli consent final judgement that obliged Mr. Salomon
    to transfer title to the property to Ms.

Refaeli.
    In his letter, dated October 18, 2016, Israeli counsel for Ms. Refaeli provides
    additional context:

The court should be made aware that the consent judgment was
    made in the context of an inheritance dispute amongst all of Amnons siblings,
    namely my client, her brother and sister and Amnon.

[3]

I note that neither party takes issue with the jurisdiction of the
    Israeli court over the inheritance dispute.

[4]

Mr. Salomon did not appeal Diamond J.s recognition order on a timely
    basis.

[5]

Instead, about a year later in February 2016, Mr. Salomon began a new
    action in Israel to set aside the settlement agreement that was the basis of
    the Israeli consent judgment recognized by Diamond J. Mr. Salomon obtained from
    the Israeli court an
ex parte
interim order staying the consent final
    judgment. On June 25, 2016, the Israeli court continued the interim stay order
    on conditions that, according to Israeli counsel for Ms. Refaeli, Mr. Salomon
    did not meet. As of October 2016, her Israeli counsel advises that the matter
    is still pending in the Israeli court. While Mr. Salomon proffers various
    explanations for what is going on in respect of the litigation in Israel, he has
    provided no evidence to substantiate these claims. On the evidence, it appears
    that Mr. Salomon is taking the same desultory approach to the Israeli
    proceedings as he is taking to the appeal proceedings in this court.

[6]

Mr. Salomon then filed a notice in this court requesting an extension of
    the time to appeal the recognition order and asked for a stay of the order. Ms.
    Refaeli brought a responding motion seeking an order for security of costs of
    the appeal. On June 29, 2016, Hourigan J.A. dealt with these motions. He
    granted Mr. Salomons request for an extension of time to appeal the recognition
    order of Diamond J. and ordered the appeal to be perfected by July 29, 2016. He
    refused Mr. Salomons request for a stay of the recognition order. He adjourned
    Ms. Refaelis motion for security for costs to July 12, 2016 to enable Mr.
    Salomon to file responding materials.

[7]

On July 12, 2016, Juriansz J.A. heard Ms. Refaelis motion for security
    for costs. In respect of that motion, Mr. Salomon says he was confused about
    the start time for the court and did not appear until court had adjourned for
    the day. Juriansz J.A. ordered security for costs in the amount of $25,000 to
    be posted by the perfection date, July 29, 2016. A written motion by Mr.
    Salomon asking Juriansz J.A. to reconsider was addressed on July 29, 2016. Juriansz
    J.A. refused to reconsider his security for costs order in light of the new material
    filed by Mr. Salomon, stating: I am not persuaded the order for security for
    costs should not have been granted.

[8]

Mr. Salomon did not perfect the appeal of the recognition order by July
    29, 2016, as provided in the endorsement of Hourigan J.A. and did not provide
    security for costs as ordered by Juriansz J.A. He also did not pay outstanding
    cost awards.

[9]

Mr. Salomon refused to transfer the property to Ms. Refaeli, relying on
    the effect of the Israeli stay. By endorsement, dated August 5, 2016, Diamond
    J. issued an order vesting the property in Ms. Refaeli.

[10]

I accept counsel for Ms. Refaelis assertion that Diamond J. was aware
    of the ongoing proceedings in the Israeli court because correspondence with the
    Israeli law firm representing Ms. Refaeli was part of the materials filed on
    the vesting motion. I also accept that the argument for whether the vesting
    order should be issued turned on the impact of the Israeli interim stay. I note
    that, apart from a letter from Israeli counsel for Ms. Refaeli, there is no
    formal documentation from the Israeli court indicating that the original
    decision was in fact formally stayed. Mr. Salomon provided no such
    documentation. Perhaps the Israeli stay was the basis upon which Hourigan J.A.
    noted in his endorsement, with respect to the stay request, I am satisfied
    that there is some merit to the appeal, although he dismissed Mr. Salomons
    motion for a stay.

[11]

On September 6, 2016, Mr. Salomon brought a motion for an extension of the
    time to appeal the vesting order for a period of 30 days. When the motion came before
    MacFarland J.A. on September 16, 2016, Mr. Salomon requested an
    adjournment. MacFarland

J.A. granted the
    adjournment and set October 27, 2016 as peremptory to Mr. Salomon, and also ordered
    him to pay costs in the amount of $750, inclusive of disbursements and HST. He
    has not paid the costs award.

[12]

Before me, Mr. Salomon asks that the perfection date be postponed until
    30 days after the date on which Diamond J. releases the transcript as well as
    the audio recording of the motion heard before him on August 5, 2016. Mr.
    Salomon asserts that Diamond J. has twice refused to release the transcript. I
    note that Mr. Salomon takes the position, in his material, that his appeal of
    the recognition order is still pending, despite the passage of the extended
    perfection date, his failure to post security for costs, and his failure to pay
    outstanding costs awards.

[13]

To regularize the proceedings, it would be necessary for me to further
    extend the perfection date of the appeal of the recognition order from the date
    of July 29, 2016 previously ordered by Hourigan J.A., and to extend the time
    for Mr. Salomon to appeal the vesting order of August 5, 2016. It is not
    clear whether Mr. Salomon is treating the appeal from the vesting order as an
    entirely new appeal, but it is plain that the appeal of the vesting order rests
    on the vitality of the recognition order, which in turn awaits the decision of
    the Israeli court. Perhaps Mr. Salomon has only requested from me an extension
    in respect of the time to file the appeal of the vesting order in order to
    evade the obligation to provide security for costs as ordered by Juriansz J.A. But
    undeniably both appeals would need to be before the same panel as a
    consolidated appeal for Mr. Salomon to be successful.

[14]

I am obliged to consider the following factors in exercising discretion
    to extend the time for perfecting the first appeal on the recognition order and
    for filing a notice of appeal respecting the vesting order out of time:

·

whether the applicant had a
bona fide
intention to appeal
    before the expiration of the appeal period;

·

any explanation for the delay in filing;

·

any prejudice to the responding party caused by the delay; and

·

the justice of the case including the merits of the proposed
    appeal.

See
Issasi v. Rosenzweig
, 2011 ONCA 112, 277
    O.A.C. 391, at para. 4.

[15]

I will deal with the appeals in tandem. In respect of the first factor, I
    am in no position to assess Mr. Salomons initial intention to appeal the
    recognition order, given the decision by Hourigan J.A. to extend the time
    within which he could perfect it. I note, however, that Mr. Salomon did not
    perfect the appeal on a timely basis, provide security for costs, or pay
    outstanding cost orders. He provides no explanation for his failure to do so.

[16]

It is quite plain that Mr. Salomon intended to appeal the vesting order
    before the expiration of the appeal period. He moved quickly to extend the time.

[17]

As to prejudice, Ms. Refaeli argues that she took steps relying on both
    the recognition order and the vesting order to discharge encumbrances on the
    property. Further, the vesting order has been registered on the property. Relying
    on
Re Regal Constellation Hotel Ltd
. (2004), 71 O.R. (3d) 355 (C.A.),
    she contends that by being registered on the property the attributes of the
    vesting order as an order have been spent, which means that Mr. Salomons
    appeal is now moot. I do not view the law as quite so absolute, especially in
    the absence of the interests of any innocent third party, the existence of
    appeal rights, and the existence of the reconsideration possibility based on r.
    59.06 of the
Rules of Civil Procedure
,
    where it applies
. However, I do not need to determine this question
    to decide the motion.

[18]

As for the justice of the case, I agree with Hourigan J.A. that there
    might be something to the appeals based on the Israeli proceedings. There is an
    outstanding recognition order. However, there is no final order of an Israeli
    court disposing of Mr. Salomons challenge to the Israeli order that
    Diamond J. recognized and on which the Israeli court has placed an interim
    stay.

[19]

However, I am especially troubled by Mr. Salomons utter disregard
    of the
Rules of Civil Procedure
and orders of this court
. Put bluntly, he wants to keep the appeal
    ball rolling without any personal investment. He acknowledges in his material that
    he was granted an extension to file an appeal of the recognition order, but
    does not explain why he failed to perfect the appeal on time, pay the security
    for costs order, or pay the outstanding costs awards. I infer he thought he
    could avoid those obligations by simply moving to extend the time to appeal the
    vesting order but that will not avail.

[20]

Because Mr. Salomons actions in this court have been abusive of this
    courts indulgences and orders, I assess the justice of the case to be in Ms. Refaelis
    favour.

[21]

In summary, while Mr. Salomon might have had a
bona fide
intention to appeal the recognition order before the expiration of the appeal
    period and did have an intention to appeal the vesting order, he has provided
    no explanation for his later delay in perfecting the recognition appeal. There
    is some evidence of prejudice to Ms. Refaeli caused by his delay. The justice
    of the case favours Ms. Refaeli.

[22]

For these reasons I dismiss Mr. Salomons motion and fix costs in the
    amount of $5,000, inclusive of disbursements and applicable taxes, payable by
    Mr. Salomon to Ms. Refaeli within 30 days of the date of this order.  In light
    of this order, I need not address Ms. Refaelis alternative request for
    security for costs, which I dismiss as redundant.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rishi v. Kakoutis, 2016 ONCA 863

DATE: 20161116

DOCKET: C62326

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Sanjeev Rishi and Shalini Bhardwaj

Plaintiffs/ Respondents

and

Ruby Kakoutis, Sylvia Karoumbalis,
Louis Kakoutis
, John Young, Doreen K. Young, and Century
    21 Harvest Realty Ltd.

Defendants/ Appellant

and

Sundeep Bahl and Royal LePage Signature Realty Ltd.

Third Parties

Louis Kakoutis, in person

Wayne Laski, for the respondents

Eric Sherkin, for the defendants, John Young, Doreen K.
    Young, and Century 21 Harvest Realty Ltd., and the Third Parties

Heard and released orally: November 9, 2016

On appeal from the judgment of Justice D. Stinson of the Superior
    Court of Justice, dated May 30, 2016, with reasons reported at 2016 ONSC 3496.

ENDORSEMENT

[1]

The appellant appeals the order requiring him to
    attend a mental examination under s. 105(2) of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43.

[2]

The appellant submits that a psychiatric report
    would add nothing because he understands the proceedings and a psychiatric
    opinion would be of no assistance to the court. The appellant further
    submits that many experts are biased and again, in that situation, their
    reports are of no assistance. The appellant has cited the conclusions in
    prior jurisprudence in support of his position. Accordingly, he asks that
    the order of the motion judge be set aside because, in his opinion, there is no
    reason that he be assessed.

[3]

The motion judges decision to order a mental
    examination was an exercise of his discretion which, absent error in principle
    or overriding and palpable error, is entitled to deference from this
    court. We see no basis to interfere.

[4]

The motion judge noted that the progress of the
    real estate litigation was impeded by the issue of whether the appellant is
    still under a legal disability such that he requires a litigation guardian in
    these proceedings. He then carefully reviewed the relevant legal principles
    and the evidence before him. He noted the presumption of the appellants
    competence and determined that he did not have current medical information that
    would support an order that a litigation guardian be appointed. However, he
    determined that a mental examination was warranted, given previous orders of
    the court and expert reports concerning the appellants conduct. He
    determined that these provided grounds to believe that there may be substance
    to the allegation of the appellants disability.

[5]

For these reasons, the appeal is dismissed.

[6]

Costs to the respondents in the amount of
    $3,000, all inclusive.

K.M.
    Weiler J.A.

Paul
    Rouleau J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Roelandt v. Roelandt, 2016 ONCA 858

DATE: 20161115

DOCKET: C61455

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Kenneth Roelandt

Appellant (Applicant)

and

Yvonne Roelandt, Martina Roelandt, Nelly Burwell
    and the
Public Guardian and Trustee

Respondents (Respondents)

Ian McLean, for the appellant

James McIlhargey, for the respondent, Yvonne Roelandt

Mary E. Cull, for the respondent, Martina Roelandt

Philip Cornish, for the respondent, Nelly Burwell

Heard: November 7, 2016

On appeal from the order of Justice I.F. Leach of the Superior Court
    of Justice, dated November 16, 2015, with reasons reported at 2015 ONSC 6874.

ENDORSEMENT

[1]

The appellant appeals the application judges order, appointing
    Yvonne Roelandt (Yvonne) and Nelly Burwell (Nelly) as the guardians of property
    and personal care for Martina Roelandt (Martina).  Martina, Nelly and the
    appellant are Yvonnes three children.

[2]

There is no dispute that Martina is incapable of managing her property
    and personal care. Martina is now 57 years old. She needs help with nutrition, dressing
    and bathing, and requires 24-hour supervision. She is unable to make decisions
    on her own. Her medical history is complicated and she takes medication for a
    number of conditions, including epilepsy, which she is unable to administer on
    her own.

[3]

With the exception of one year, from December 2013 to December 2014,
    when she resided in North Bay with the appellant and his wife, Julie, Martina
    has lived with her mother who is 86 or 87 years of age. In December 2013,
    Martina and her mother lived in Goderich when her mother became ill and was
    hospitalized. Her mother arranged for Martina to stay with neighbours whom
    Martina knew well. Upon learning of Yvonnes illness, the appellant and his
    wife took Martina to live with them in North Bay. When Yvonne left hospital,
    the appellant refused to return Martina to her care on the basis that it was
    better for Martina to live with him and his wife in North Bay.

[4]

The appellant subsequently commenced an application on February 18, 2014
    to be appointed Martinas guardian of her property and personal care, which
    Yvonne opposed. Yvonne brought a counter-application to be appointed together
    with Nelly as Martinas guardian.

[5]

In the course of the proceedings, Martina returned home for a visit with
    her mother in December 2014. At the end of the visit, Yvonne refused to return
    Martina to North Bay although she had agreed to do so as a precondition to the
    visit. In light of complaints made by Martina to Yvonne and Nelly about her
    care in North Bay and about her wanting to come home to her mothers care, Yvonne
    felt, that as her mother and the person with whom Martina had always lived, it
    was in Martinas best interests to stay with her. Martina has resided with her
    mother since that time.

[6]

The appellant does not allege that the application judge misstated the
    relevant principles of law and acknowledges that the overarching consideration
    is Martinas best interests. The appellant essentially takes issue with the
    application judges findings of fact. In his submission, those findings were
    unreasonable, unfairly disregarded the appellants evidence, and did not
    consider Martinas best interests. In the appellants view, it was apparent
    that he had presented the best management plan. The appellant submits that the
    application judges criticisms levelled against him and his wife were unfounded
    and biased.

[7]

We do not accept the appellants submissions. On the evidence, the
    application judges findings were available to him, including his finding that the
    actions taken by the appellant and his wife were financially motivated.

[8]

The application judge carefully and thoroughly considered and weighed
    the parties differing accounts of relevant events, including the history of
    family relations and interactions, and Martinas treatment while in her
    mothers care, compared with her stay with the appellant and his wife. Where
    the various accounts were at variance, he preferred the evidence proffered by
    Yvonne, Nelly and the objective witnesses who were not family members, and, as
    far as he could ascertain, Martinas own expressed desire to remain with her
    mother. The unvarnished language he used in making his findings does not meet
    the test for apprehension of bias or bias.

[9]

The appellant submits that the application judge erred in failing to
    give more weight to the appellants management plan. We disagree. The
    application judge scrutinized the parties respective management plans. In
    particular, he noted the discrepancies between the appellants proposed care
    for Martina and the reality of the care that she received in North Bay. Those
    discrepancies included the lack of contact permitted between Martina and her
    mother while she was with the appellant in North Bay and the fact Yvonne was required
    to forward monies for Martinas care during that time. He also considered the appellants
    proposed deficit spending for Martinas care. Again, those findings were open
    to the application judge.

[10]

In sum, having reviewed the relevant legal principles, the application
    judge applied them to the evidence before him and concluded that it was in
    Martinas best interests to have Yvonne and Nelly appointed as her guardians of
    property and personal care. We see no basis to interfere with the application
    judges decision.

Disposition

[11]

For these reasons, the appeal is dismissed.

[12]

Costs to the respondents as follows:

i.

Nelly Roelandt:  $1,250.00;

ii.

Yvonne Roelandt:  $750.00;

iii.

Martina Roelandt:  $1,865.18.

K. Weiler J.A.

Paul Rouleau
    J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rougemount Capital Inc. v. Computer Associates
    International Inc., 2016 ONCA 847

DATE: 20161110

DOCKET: C59920

LaForme, Pardu and Roberts JJ.A.

BETWEEN

Rougemount Capital Inc.

Plaintiff (Respondent)

and

Computer Associates International Inc.

Defendant (Appellant)

Michael J.W. Round and Nicholas Robar, for the appellant

Peter J.E. Cronyn, for the respondent

Heard: March 8-9, 2016

On
    appeal from the judgment of Justice Mary A. Sanderson of the Superior Court of
    Justice, dated December 17, 2014, with reasons reported at 2014 ONSC 7070
.

By the Court:

INTRODUCTION

[1]

Sixdion Inc. (Sixdion) describes itself as an
    Aboriginal IT company. Its goal was to market comprehensive IT systems to
    Aboriginal communities. Computer Associates International Inc. (CA)
[1]
carries on the business of developing, manufacturing and licensing proprietary
    computer software programs in the U.S. and elsewhere. It has a subsidiary that
    markets and sells CAs products in Canada.

[2]

In 2004, Sixdion believed that it had a contract
    with CA. Sixdion claimed that CA breached the contract, resulting in Sixdion's
    filing for bankruptcy in 2005.  Rougemount Capital Inc. (Rougemount), a
    former Sixdion creditor, purchased the action against CA from Sixdions trustee
    for $5,000. It is common ground that this entitles Rougemount to 60% of any
    damages assessed to have been incurred by Sixdion as a result of CAs breach of
    their agreement. Rougemount claimed damages suffered by Sixdion of $20 million
    - $54 million as a result.

[3]

The trial judge found that there was a contract
    that CA breached and awarded $11 million in damages. CA appeals and argues that
    the trial judge made fatal errors in reaching her decision on both the issue of
    the validity and nature of the contract and in her assessment of damages.

[4]

Rougemount, on the other hand, stresses that
    this action is not just about the destruction of Sixdion, which flowed from
    CA's breach of contract. Rather, it argues that it is also about the loss of a
    formidable opportunity for both Sixdion and CA, as a direct result of CA's
    failure to fulfill its agreement.

BACKGROUND

(a)

Sixdions business and development

[5]

Sixdion was incorporated on February 22, 1996.
    At all material times it had three primary shareholders: Murray Dion (M.
    Dion), Lewis Staats (Staats), and Leo Dion (L. Dion). Sixdion was an
    Aboriginal company
[2]
involved in the information and communications technology business. Initially
    Sixdion provided low-tech services. However, Sixdions principals testified
    (and the trial judge accepted) that the company was constantly developing its
    business model and trying to provide more sophisticated services and products.

[6]

In 2004, Sixdion was at a crossroads. Its
    principals believed that it could achieve commercial success by capitalizing on
    the companys status as an Aboriginal company (in relation to government
    procurement contracts) and by providing technology services for Canadian (and
    eventually international) indigenous populations. However, in order to exploit
    that potential, it needed capital investment and partnership with more
    established companies. It is in this context that Sixdion began to interact
    with CA.

(b)

Negotiations and contract between Sixdion and CA

[7]

Representatives of CA-Canada approached Sixdion
    in March 2004. They were interested in Sixdion because working with an
    Aboriginal company would make it easier for CA to benefit from government
    projects and procurement. Initially, CA wanted a marketing agreement wherein
    Sixdion would re-sell CA products. However, Sixdion insisted on an agreement in
    which CA would purchase some equity in Sixdion and be an active partner in its
    business.

[8]

The trial judge provided a lot of detail about
    the negotiations between the two companies over the summer of 2004. We
    highlight the following salient details:

·

CA-Canada was enthusiastic about the deal but CA-International
    (specifically the head office in New York) was not;

·

Chris Devlin (Devlin) was a significant actor in these
    negotiations and CAs main representative to Sixdion;

·

Devlin told Sixdions principals that Gary Quinn (Quinn),
    Executive Vice-President at CA-International, had the authority to approve the
    deal;

·

Quinn approved the deal and, on July 30, 2004, Devlin told M.
    Dion that Quinn had approved the deal; and,

·

Devlin sent a letter dated August 11, 2004, which stated: I am
    pleased to commit our partnership based on your Term Sheet delivered to me on
    May 6 of this year. In addition to capital we will invest technical and
    architectural resources to ensure that Sixdion can deliver the industries [sic]
    best practices in infrastructure management.

[9]

The deal comprised the following elements:
    Sixdion would receive $1.5 million from CA; CA would get share warrants that
    would provide the option to obtain up to ten percent of Sixdions shares;
    Sixdion would cooperate in selling CA products to the federal government,
    allowing CA to benefit from Aboriginal procurement initiatives; and CA would
    become a partner of Sixdion, finding other investors and businesses, and
    helping Sixdion develop the capacity to achieve its business objectives.

(c)

Breach of agreement

[10]

CA did not honour its agreement with Sixdion. It
    never made the payments that it had promised. Officials at CA-International
    began to question Quinns decision to approve the transaction and in October
    2004, Jeff Clarke, Chief Operating Officer at CA-International, told Quinn to
    kill the deal. CA then informed Sixdion that it would not be continuing with
    their arrangement.

[11]

The trial judge made a number of findings about
    the period between July 2004 (when Quinn approved the proposed deal) and
    November 2004 (when the deal was killed). We note the following:

·

Sixdion hired additional staff and incurred additional expenses
    on the understanding that it would be receiving $1.5 million from CA and would
    be expanding its business;

·

People from CA worked with Sixdion, acting as if they had reached
    a deal. Devlin volunteered to look for other investors. A CA employee worked
    with Sixdion to create and implement a business plan for the partnership; and,

·

Quinn and Devlin believed that they had the authority to commit
    to the deal and believed that their agreement was sufficient to commit CA to
    the contract.

[12]

As noted, CA-International decided to kill the
    deal. Sixdion, which had been facing financial difficulties this entire time,
    collapsed. It filed an assignment into bankruptcy in February 2005.

TRIAL JUDGES DECISION

[13]

As mentioned earlier, Rougemount commenced the
    action, alleging breach of contract and seeking damages suffered by Sixdion of
    $20 million to $54 million as a result.

[14]

CA defended Rougemounts claim and argued that:
    (a) there was no binding contract between CA and Sixdion; (b) CA could rescind
    any contract because it was obtained through misrepresentations; and (c)
    Sixdion did not suffer any damages. The trial judge rejected CAs position. She
    concluded that there was a valid contract and that Sixdion had not made any
    misrepresentations. She awarded $11 million in damages, along with prejudgment
    interest.

(a)

Sixdion and CA entered into a binding contract

(i)

Quinn had the authority to approve the proposed contract

[15]

CA argued that Quinn and Devlin did not have the
    requisite authority to approve the proposed contract. They primarily relied on
    the evidence of George Cox (Cox), an employee at CAs business development
    group, who stated that any equity transaction needed the approval of
    CA-Internationals business development team and that Quinn could not approve
    an equity transaction.

[16]

On the other hand, Rougemount relied on the fact
    that Devlin (who testified) believed that Quinn had the authority, and
    communications from the time of the negotiation showed that both Devlin and
    Quinn thought that the latter could approve the deal as a marketing expense
    or a marketing transaction.

[17]

The trial judge concluded that Quinn had the
    requisite authority. She concluded that the proposed deal was a marketing deal
    and that, therefore, Quinn had the authority to pay the $1.5 million price out
    of his marketing budget. Furthermore, she concluded that Devlin and Quinn had
    obtained the requisite approvals.

[18]

In the alternative, the trial judge concluded
    that Quinn and Devlin had apparent authority to bind CA. CA held out Devlin and
    Quinn as having the requisite authority and did nothing to suggest to Sixdion
    that they were not authorized to make the deal. She found that the principals
    of Sixdion reasonably relied on what Devlin told them in regard to Quinn and
    Devlin's authority.

(ii)

Remaining issues regarding the contract

[19]

The remaining issues regarding the validity of
    the contract are not relevant on appeal. We summarize them briefly. The trial
    judge concluded that the parties had settled all essential terms of the
    contract by August 11, 2004, and the contract was not conditional on any due
    diligence, obtaining a second investor, or amalgamation. The trial judge also
    rejected CAs argument that Sixdion had induced it to enter into the agreement
    through misrepresentations. Therefore, the contract could not be rescinded.

(b)

Sixdions damages

[20]

The trial judge held that CA had breached its
    contract with Sixdion by (a) failing to pay the $1.5 million promised and (b)
    failing to provide the promised assistance, training and services business. The
    trial judge further found that CA had contributed to Sixdions losses in
    several ways: (i) CA wrongly informed one of Sixdions service providers
    (Telesat) that there was no contract, due to which Telesat insisted on more
    rigorous repayment terms, contributing to Sixdions demise; (ii) Devlin
    discouraged Sixdion from pursuing certain other investors, particularly
    competitors of CA; and (iii) in reliance on the promised business relationship,
    Sixdion incurred additional expenses and worsened its precarious financial
    situation.

[21]

Broadly speaking, the damages claimed by
    Rougemount related to the loss Sixdion suffered because of the collapse of
    Sixdions business and  Sixdions failure to achieve its business plan.
    Rougemount was seeking damages on the basis that, had CA kept to its bargain,
    Sixdion would have achieved all of the goals set out in the five-year business
    plan Sixdion had developed with CA. Therefore, the issue ended up being whether
    Rougemount was entitled to damages on the basis that CA deprived Sixdion of the
    opportunity to achieve this potential business plan (the Business Plan).

[22]

The trial judge first addressed a number of
    preliminary issues regarding whether the Business Plan was a proper basis for
    quantifying damages:

·

Would
    Sixdion have survived: the trial judge concluded that if CA had honoured its
    commitment, Sixdion would have survived through the critical period of
    2004-2006 and would have become a profitable enterprise.

·

Was
    Sixdions demise foreseeable: CA knew of Sixdions precarious financial
    circumstances and its need for cash. Therefore, Sixdions demise was a
    foreseeable result of CAs breach of contract.

·

Date
    of assessment of damages: the trial judge recognized that damages for a breach
    of contract are presumptively quantified with reference to the date of the
    breach. However, in this case, doing that would not fairly reflect Sixdions
    actual loss. The trial judge concluded that damages should be assessed as of
    January 31, 2010, the end of the period reflected on the Business Plan.

The quantum of damages

[23]

As noted, the trial judge concluded that a fair
    assessment of Sixdions damages would be to quantify its losses based on its
    five-year business plan as of January 31, 2010. The trial judge concluded that
    there was sufficient evidence in support of this business plan. Therefore,
    Rougemounts assertions were supported by evidence sufficient to discharge its
    onus.

[24]

The parties mostly relied on two expert
    witnesses in support of their respective positions regarding damages. The
    plaintiff relied on the testimony and expert report of Stephen Pittman
    (Pittman), a chartered professional accountant and chartered business
    valuator. The defendant relied on Domenic Marino (Marino), also an accountant
    and business valuator. Marino, however, did not present an independent report
    or valuation; he only provided a limited critique of Pittmans methodology.

[25]

After reviewing the parties evidence, the trial
    judge concluded that it was reasonable for Pittman to rely on the assumptions
    contained in the Business Plan. Then, she reviewed the competing methodologies
    presented by Pittman and Marino, and concluded that she preferred Pittmans.

[26]

As noted, the trial judge concluded that damages
    should be assessed as of January 31, 2010. However, Pittmans report was
    premised on damages being assessed as of 2012. The trial judge tweaked
    Pittmans assessment and calculated damages as of January 31, 2010. She also
    made some additional adjustments to reflect the risk that she found that
    Sixdion would have been facing between October 2004 and January 31, 2010. Based
    on this, she concluded that the plaintiff was entitled to $11 million in damages.

THE ISSUES

[27]

There are two questions that need to be answered
    on this appeal. First, did the trial judge err by concluding that Quinn or
    Devlin had the authority to enter into the contract with Sixdion? Second, did
    the trial judge err in her award of damages?

[28]

As we will explain, we conclude that Quinn and
    Devlin did have authority to enter into the contract and that CA breached the
    contract. However, we also conclude that the trial judge erred in assessing
    damages as of 2010, rather than as of 2004, when the breach of contract
    occurred. Accordingly, the appeal is allowed in part with respect to damages.

DISCUSSION

(a)      Did the trial judge err by
    concluding that Quinn or Devlin had the authority to enter into the contract
    with Sixdion?

[29]

CA makes two submissions regarding this ground
    of appeal. First, it argues the trial judge wrongly concluded that the proposed
    deal was a marketing deal and not an equity transaction. It points out
    that, as a result of the contract, CA would have acquired ten percent of Sixdions
    shares. Thus, it says, it was an equity transaction, which Quinn had no
    authority to approve.

[30]

Second, CA argues that neither Quinn nor Devlin
    had apparent authority. It says that there is no evidence that anyone from CA
    with actual authority ever represented that either Devlin or Quinn had
    authority. Moreover, CA asserts, Sixdion never made any attempt to inquire into
    their authority.

(i)

Nature of the contract

[31]

CA argues that the trial judge made a palpable
    and overriding error by disregarding the equity component of this transaction
    in her findings in deciding Quinn's authority. It contends, as it did at trial,
    that the transaction was an acquisition of ten percent of the equity interest
    in Sixdion. Thus, it required a process of approval that did not include Quinn.
    We reject this argument.

[32]

The trial judge specifically identified and
    fully addressed CAs view of the deal. She thoroughly reviewed the evidence
    related to it and, at para. 379 of her reasons, summarized her conclusion:

From the exhibits and Devlin's evidence, I
    infer and I find that Quinn had actual authority to authorize and incur a $1.5
    million marketing expense. In essence Quinn authorized a marketing deal that
    gave CA the additional option of exercising the warrants if it so chose. Quinn
    and Devlin considered that aspect to be an additional peripheral benefit, not
    the essence of the deal.

[33]

The contract included a purchase of share
    warrants that could lead to a ten percent equity interest in Sixdion only if CA
    chose to exercise the warrants. In other words, the trial judge did not
    disregard the equity component; rather, she put it in proper perspective in the
    larger scheme of the deal.

(ii)

Actual authority

[34]

CA argues that the trial judge made a palpable
    and overriding error in finding that Quinn had authority to approve the deal
    with Sixdion. We disagree.

[35]

As recently noted by Weiler J.A. in
1196303
    Inc. v. Glen Grove Suites Inc.
, 2015 ONCA 580, 337 O.A.C. 85, at para. 71:

While agency is often created by an express
    contract, setting out the scope of the agents authority, the creation of an
    agency relationship may be implied from the conduct or situation of the
    parties. Whether an agency relationship exists is ultimately a question of
    fact, to be determined in the light of the surrounding circumstances.
    [Citations omitted.]

[36]

In our opinion, there is no reason for taking a
    different approach to determining the scope of an agents authority. It is a
    question of fact to be determined in light of the circumstances, including the
    conduct or situation of the parties.

[37]

In this case, it is important to note that the
    trial judge did not receive any direct evidence about the scope of Quinns
    authority. CA did not provide any written record of its policies and did not
    call any senior officers or directors to testify. Rather, it called Cox, a
    relatively junior employee, who was the only witness who testified that Quinn
    did not have actual authority to approve the deal.

[38]

On the other hand, Devlin testified that Quinn
    did have actual authority and there was support for that position in the
    documentary evidence from the relevant time period.

[39]

The trial judge had to decide this issue on the
    basis of competing circumstantial evidence. Her conclusion, as quoted above, is
    reasonable and supported by the evidence. CA has not provided any reason why we
    should interfere.

[40]

Given this conclusion, it is not necessary to
    address CAs arguments on apparent, as opposed to actual, authority.

(iii)

Did the trial judge err in her award of damages?

Standard of review

[41]

Damages awards attract considerable deference.
    The limited scope for appellate interference was noted in
Naylor Group Inc.
    v. Ellis-Don Construction Ltd.
, 2001 SCC 58, [2001] 2 S.C.R. 943, at para.
    80:

It is common ground that the Court of Appeal was not entitled
    to substitute its own view of a proper award unless it could be shown that the
    trial judge had made an error of principle of law, or misapprehended the
    evidence, or it could be shown there was no evidence on which the trial judge
    could have reached his or her conclusion, or the trial judge failed to consider
    relevant factors in the assessment of damages, or considered irrelevant
    factors, or otherwise, in the result, made a palpably incorrect or wholly
    erroneous assessment of the damages.  Where one or more of these conditions
    are met, however, the appellate court is obliged to interfere.  [Citations
    omitted.]

[42]

Moreover, as recently observed by this court in
Livent
    Inc. v. Deloitte & Touche
, 2016 ONCA 11, 128 O.R. (3d) 225, at para.
    388, quantifying damages is not an exact science and trial judges are obliged
    to do the best they can on the evidence, short of failing to analyze the
    evidence at all or simply guessing.

What is the appropriate date for the assessment of damages?

[43]

The appellant submits that the trial judge erred
    in following the approach offered by Rougemounts expert, thereby rejecting the
    date of the breach and using the date at the end of the Business Plan as the
    date for the assessment of damages. We agree.

[44]

It is well established that the general measure
    of damages for breach of contract is the amount of damages that will, so far as
    money can, place the aggrieved party in the same position as if the wrong had
    not been done:
Ticketnet Corp. v. Air Canada
(1997), 154 D.L.R. (4th)
    271 (Ont. C.A.), at para. 97.  The focus is on the injured partys loss and on
    the measure of compensation required to restore it to the position that it
    would have been in had the contract been performed:
642947 Ontario Ltd. v.
    Fleischer
(2001), 56 O.R. (3d) 417 (C.A.) , at para. 41;
Kinbauri Gold
    Corp. v. Iamgold International African Mining Gold Corp.
(2004), 246
    D.L.R. (4th) 595 (Ont. C.A.), at para. 53.

[45]

With respect to the appropriate date for the
    assessment of damages, the presumption is that damages, including those for
    loss of a business or opportunity, should generally be assessed as of the date
    of breach:
Johnson v. Agnew
, [1980] A.C. 367 (H.L.), at pp. 400-401.

[46]

The trial judge correctly noted that the
    presumptive rule for assessing damages is that damages for breach of contract
    are to be quantified at the time of breach. However, she accepted Rougemounts
    submission that she could choose a date other than the date of the breach if an
    assessment as of that date would not fairly reflect Sixdions actual loss.

[47]

The trial judge found that an assessment of
    damages at the date of breach would not fairly reflect Sixdions actual loss or
    put it in the position it would have been in but for CAs breach. She concluded
    that had the contract been honoured, Sixdions earnings from the contract would
    have started shortly after July 30, 2004 and continued until at least January
    31, 2010. As a result, she found that it would be unfair to assess damages as of
    the date of breach in 2004 and to fail to reflect the benefits Sixdion would
    have derived after 2004 from the CA contract.  Instead, she assessed damages as
    of the end of the Business Plan, on January 31, 2010.

[48]

The trial judge appears to have based her conclusion
    largely on the opinion of Rougemounts expert, which she modified. Mr. Pittman
    did not assess Sixdions damages as of the date of breach in 2004. Rather, he
    valued Sixdion as it would have been in 2012 or 2014. In response to the trial
    judges question as to why he did not choose the date of breach, Mr. Pittman
    testified that it would not have properly reflected the upside of executing
    the Business Plan.  Specifically, he opined that the discounted valuation at
    the date of breach was not appropriate because it would apply all of the weight
    to the early years when there were losses anticipated and very little weight to
    the latter years when all of the upside of the Business Plan would be realized.
    As a result, he felt it did not fairly reflect the true damages sustained by
    Sixdion.

[49]

Rougemount submits that the presumptive rule
    that damages are assessed at the date of breach can be displaced where fairness
    requires it:
Kinbauri
, at paras. 66-68. Moreover, Rougemount submits
    that the trial judges determination that fairness required damages to be
    assessed at a later date in this case was an exercise of her discretion, based
    on the all of the circumstances, which should not be disturbed on appeal.

[50]

We agree that the general presumption that
    damages will be assessed as of the date of breach may be subject to exceptions
    where fairness requires it.  However, this presumption should not be easily
    displaced; any deviation from it must be based on legal principle. As the British
    Columbia Court of Appeal recently noted in
Dosanjh v. Liang
, 2015 BCCA
    18, 380 D.L.R. (4th) 137, at para. 55:

[T]he presumption that contract damages are to be assessed as
    of the date of the breach is not so easily displaced. It is important that the
    law in this area be predictable, and such predictability is not served by
    allowing judges unbounded discretion as to the date for assessment of damages.

[51]

The rationale for this general presumption was
    articulated by Laskin J.A., concurring in
Kinbauri
, at para. 125:

As Cronk J.A. points out, damages for breach of contract are
    generally assessed at the date of breach. An early crystallization of the
    plaintiffs damages promotes efficient behaviour:  the litigants become as free
    as possible to conduct their affairs as they see fit.  Early crystallization
    also avoids speculation:  the plaintiff is precluded from speculating at the
    defendants expense by reaping the benefits of an increase in the value of the
    goods in question without bearing any risk of loss.

[52]

Indeed, this general presumption should only be
    displaced in special circumstances, such as, for example, where no market
    exists to replace undelivered shares at the date of breach:
Kinbauri
,
    at para. 126; or in relation to [s]ome classes of property, including shares,
    whose value is subject to sudden and constant fluctuations of unpredictable
    amplitude, and whose purchase is not lightly entered into:
Asamera Oil
    Corp. Ltd. v. Sea Oil & General Corp.
, [1979] 1 S.C.R. 663, at pp.
    664-65.

[53]

The kind of special circumstances alluded to in
Kinbauri
and
Asamera
were not present in this case. The trial judge did not
    reference any. The circumstances of this case were no different than any other
    case where damages for future loss have to be determined. In concluding that
    the circumstances of the present case constituted the kind of unfairness that
    would allow an exception to the calculation of damages as at the date of
    breach, the trial judge erred.

[54]

First, by assessing damages starting in the
    future in 2010, the trial judge erroneously focused solely on maximizing the
    potential benefits to Sixdion under the contract with CA. The trial judge
    failed to take into account Sixdions deeply troubled financial history and
    uncertain status going into the contract with CA and the fact that Sixdion was
    embarking on a new line of business.

[55]

The evidence clearly established that Sixdion
    was in a very precarious financial position in October 2004. Its financial
    statements show a company on the brink of insolvency, with its liabilities well
    exceeding its assets and its revenues not covering its expenses. Moreover,
    Sixdions correspondence with CA during this time period is replete with
    references to its desperate need for financing simply to allow it to meet
    ordinary expenses as they came due, such as its payroll. Other than CA, Sixdion
    was unable to attract other investors. Sixdion voluntarily wound up its
    operations on October 27, 2004 and filed for bankruptcy in February 2005, with
    liabilities outweighing its assets by nearly $2.7 million.

[56]

While her evaluation of damages was based on her
    findings that Sixdion would have survived and avoided bankruptcy, the trial
    judge could not ignore the unchallenged evidence that Sixdion was in an
    insecure financial position with significant liabilities that it had to
    satisfy, even if it managed to become profitable in the future.

[57]

Further, the trial judge erred by not applying
    the discounted cash flow analysis prepared by the appellants expert. The
    appellants expert, Mr. Marino, opined that if the trial judge were to conclude
    that the forecasts were sufficiently reliable, the correct valuation
    methodology would involve a discounted cash flow analysis as set out in his
    calculations. Using a discounted cash flow approach and applying a venture capital
    discount rate of between 40% and 70% to Mr. Pittmans averages, Mr. Marino
    estimated that Rougemounts resulting share of Sixdions losses as at August 1,
    2004, would be in a range of approximately between $0 and $2.6 milliion.

[58]

The respondents expert, Mr. Pittman, confirmed
    that had he used August 2004, the date of breach, for the assessment of
    damages, the discounted cash flow approach applied by Mr. Marino would have
    been correct. He also testified in cross-examination that when venture
    capitalists are looking at a business with no prior history of revenue and are
    basing their assessment of a forecast, they would be looking at discount rates
    in the range of 40% to 100%.

[59]

In our view, although there were some obvious
    issues concerning the reliability estimates contained in the Business Plan, it
    was open to the trial judge, in the absence of better or other evidence, to use
    the Business Plan as a basis for her assessment of damages. The trial judges
    reasons demonstrate that she was well aware of the Business Plans
    deficiencies.

[60]

We agree that the Business Plan was subject to
    some inflationary puffery, given that it was an optimistic presentation of what
    the parties hoped would happen in the future in order to obtain CA head offices
    agreement to the investment. However, we also agree with the trial judges
    observation that it was the product of Sixdion and CA and, subject to
    appropriate tweaking and discounts, was the only solid financial information
    that was available for the purposes of estimating Sixdions future loss of
    opportunity.

[61]

That said, we are also of the view that the
    trial judge erred in failing to apply a discounted cash flow analysis as of the
    date of the breach. This meant that the risk and unpredictability of Sixdions
    future cash flows were ignored until a point many years after the date of
    breach and resulted in an artificial inflation of the damages. The approach
    followed by the trial judge failed to take into account the cumulative risk
    that the profits set out in the Business Plan might not materialize.

[62]

As such, even had CA fulfilled its contractual
    obligations, the new business would have had significant start-up costs,
    including the payment of significant past liabilities to Sixdions creditors,
    and the enormous revenues predicted towards the end of the Business Plan would
    have taken some time to generate.  Accordingly, placing Sixdion in the position
    that it would have occupied had the contract been performed meant taking into
    account the costs as well as the benefits of the new business venture. The
    trial judges approach failed to do this.

[63]

We conclude that the discounted cash flow
    analysis prepared by the appellants expert, calculating damages as of the date
    of breach in 2004, would be the fairest method to assess Sixdions damages. We
    also agree that Sixdions unstable financial past and condition, as well as the
    uncertainty of the new venture, justifies a substantial discount.

[64]

Having regard to the fact that the calculation
    of these damages is not an exact science, we are of the view that the mid-range
    of Mr. Marinos calculation would allow for the fairest assessment of damages
    in all the particular circumstances of the present case.  This would result in
    damages of $1,300,000.

DISPOSITION

[65]

For these reasons, we would allow the appeal
    with respect to damages and order that CA pay damages of $1,300,000 to the
    respondent, as a result of CAs breach of its agreement with Sixdion.

[66]

The parties costs submissions on appeal and at
    trial were premised on one party being entirely successful on all issues. Given
    the disposition of this appeal, if the parties cannot agree on the disposition
    of costs, we believe that the fairest approach to both parties is that further
    brief written submissions be delivered.

[67]

Accordingly, the parties shall deliver costs
    submissions of no more than five pages, not including a costs outline,
    concerning the disposition of the costs at trial and on appeal, as follows: the
    appellant shall deliver its submissions by November 14, 2016; the respondent
    shall deliver its submissions by November 28, 2016.  There shall be no reply
    submissions.

Released: November 10, 2016

H.S. LaForme
    J.A.

G. Pardu J.A.

L.B. Roberts
    J.A.

[1]
We refer to CA as one entity for the purpose of these reasons. The companys
    corporate structure is not explained in the trial judges reasons for decision or
    the parties factums; however, it seems there was some division. Where
    appropriate, we refer to CA-Canada and CA-International.

[2]
The trial judge at para. 3 describes an Aboriginal company as a company with at
    least 51% Aboriginal ownership and control.


COURT OF APPEAL FOR ONTARIO

CITATION: Roy Wise Professional Corporation v. Colaco, 2016
    ONCA 889

DATE: 20161123

DOCKET: C61081

Simmons, Pepall and Huscroft JJ.A.

BETWEEN

Roy Wise
    Professional Corporation

and Roy
    Wise

Plaintiffs (Respondents)

and

Noel Mark Colaco

Defendant (Appellant)

Noel Mark Colaco, in person

Timothy M. Gleason, Benjamin Salsberg and Jonathan R. S.
    Schachter, for the respondents

Heard: November 17, 2016

On appeal from the judgment of Justice Stephen E.
    Firestone of the Superior Court of Justice, dated August 27, 2015, with reasons
    reported at 2015 ONSC 3801.

ENDORSEMENT

[1]

Following the hearing of this appeal, we dismissed the appeal for
    reasons to follow. These are our reasons.

[2]

The appellant appeals from a judgment granting the respondent lawyer and
    the respondent law firm (collectively "the lawyers") judgment on a
    claim for unpaid legal fees and dismissing the appellant's counterclaim for
    solicitor's negligence.

[3]

The lawyers claimed $101,183.82 ($107,729.01
    less a credit of $6,545), being the balance owing for legal fees for services
    rendered between 2002 and 2007.

[4]

The appellant's counterclaim for negligence
    related primarily to two matters. First, an action against
John

Baranyai in relation to which
    the appellant claimed that the lawyers failed to properly account for the
    proceeds of a settlement. Second, an action against
Maroun and Cobra
Hanna (Hanna) in relation to which the appellant claimed that the
    lawyers failed to take proper steps to enforce a payment agreement relating to
    a prior judgment against Hanna and failed to advise the appellant of the
    requirement to make full and frank disclosure when applying for a
Mareva
injunction  leading to the appellant having to accept an
    improvident settlement.

[5]

At trial, the appellant acknowledged that the
    lawyers spent the time and performed the services for which they had rendered
    accounts. However, he disputed whether all the services performed were
    necessary to fulfill the terms of the retainer or of benefit to him and
    maintained his position that the lawyers had been negligent.

[6]

Concerning the main action, the trial judge
    reduced the lawyers' claim for legal fees by $10,000, holding that some of the
    time spent was excessive. As mentioned above, a credit of $6,545.19 was also
    applied on account of fees charged at a higher hourly rate without the
    appellant's knowledge. However, the trial judge made numerous findings of fact
    and credibility against the appellant and in favour of the lawyers, which led
    him to conclude that the services provided by the lawyers were both necessary
    and of benefit to the appellant.

[7]

For example, in relation to the main action, the
    trial judge found that:

·

the lawyers had at all times acted in accordance
    with the appellant's instructions and kept him informed of the work being done
    and the fees being incurred;

·

the lawyers had specific instructions to take no
    steps in a proceeding against the appellant's former partner Malik;

·

the lawyers took steps in the Baranyai matter,
    including conducting discoveries, that enabled the appellant to settle the
    matter; and

·

the steps taken in the Hanna matter, including
    initiating appropriate proceedings to enforce the payment agreement based on
    the information the appellant provided, obtaining the
Mareva
injunction and taking appropriate steps to ascertain the amount
    outstanding on the payment agreement were of benefit to the appellant.

[8]

The trial judge therefore allowed the balance of
    the lawyers' claim in the amount of $90,454.81 plus interest.

[9]

Concerning the appellant's counterclaim for
    solicitors negligence, the trial judge found that the lawyers had properly
    accounted for the disputed proceeds of the Baranyai settlement. He rejected
    aspects of the appellant's evidence, including the appellants claim that he
    advised the personal respondent of an oral amendment to the payment agreement
    and concluded that the lawyers had exercised appropriate judgment with respect
    to the payment agreement based on the information the appellant had provided.

[10]

In addition, the trial judge found that the
    appellant settled the action underlying the
Mareva
injunction application  the Hanna action  for reasons unrelated
    to the lawyers. In particular, the evidence of the appellants former partner, Malik,
    had undermined his claim. Furthermore, the trial judge made a specific finding
    that the personal respondent had advised the appellant that "he must be
    truthful and complete" in his evidence on an
ex parte
motion. Although the trial judge acknowledged the expertise of the
    appellant's expert on the issue of solicitors negligence, he concluded that
    the expert's report was based on incorrect assumptions. In his factum filed on
    the appeal, the appellant submitted that the trial judge committed several
    errors. In essence, however, his submissions amounted to reiterating his
    arguments made at trial and asserting that the trial judge erred in failing to
    accept them. In oral argument on appeal, the appellant elaborated on those
    arguments, primarily in relation to the Hanna matter, and also attempted to raise
    new arguments.

[11]

Based on our review of the record, the trial
    judge's findings of fact support his conclusions and are fully supported by the
    evidence led at trial. Further, we see no error in principle. For these
    reasons, we dismissed the appeal.

[12]

The trial judge awarded costs to the lawyers in the
    main action of $86,000 and $80,000 in the counterclaim. The appellant sought
    leave to appeal costs but made no submissions concerning that issue. Leave to
    appeal costs is denied.

[13]

Costs of the appeal are to the respondents on a partial
    indemnity scale fixed in the amount of $5,000 in relation to the appeal of the
    main action and $10,000 in relation to the dismissal of the counterclaim, both
    sums inclusive of applicable taxes and disbursements.

Janet Simmons J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.