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), (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    that could identify the complainant or a witness shall not be published in any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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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. Steeves, 2012
    ONCA 106

DATE: 20120216

DOCKET: C53101

Goudge, Epstein JJ.A., and Newbould J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Mykel Steeves

Respondent

Andreea Baiasu, for the appellant

Louis P. Strezos and Shannon O’Connor, for the respondent

Heard: January 17, 2012

On appeal from the order of the summary conviction appeal
    court by Justice Gary W. Tranmer of the Superior Court of Justice, dated
    December 6, 2010, allowing an appeal from the conviction entered by Justice Paul
    H. Megginson of the Ontario Court of Justice on January 6, 2009.

Goudge J.A.:

[1]

The respondent was convicted of sexual assault after a trial in
    the Ontario Court of Justice.  The summary conviction appeal court (the SCAC)
    allowed his appeal and ordered a new trial.  The Crown now asks this court for
    leave to appeal and, ultimately, to restore the conviction.  It seeks to base
    its appeal on the proposition that the SCAC erred in finding a misapprehension
    of the evidence by the trial judge.

[2]

In
R. v. R.(R.)
(2008), 90 O.R. (3d) 641, this court
    articulated the test for leave.  It has two branches.  The Crown acknowledges
    that the first branch  that the legal issue raised by the appeal has
    significance to the administration of justice beyond the particular case  does
    not apply here.  Rather, it relies on the second branch, which requires that
    the merits of the appeal appear very strong.  While
R.(R.)
arose in
    the context of a convicted appellant seeking leave, I will proceed on the basis
    that the second branch of the test applies
mutatis mutandis
where it
    is the Crown seeking leave to appeal to this court.

[3]

The Crown argues that the test is met here because the SCAC was
    clearly wrong in finding that the trial court misapprehended the evidence of
    the complainant about whether or not, in the encounter with the respondent, she
    consented to the activity at the beginning but said no to his subsequent
    advances.

[4]

The evidence at trial was that the encounter during which the
    alleged sexual assault occurred began with the respondent suggesting to the
    complainant that they take a nap in his room.  They each told very different
    stories about what happened then.  They were the only ones present.
    Credibility was the central issue at trial.  While the trial judge rejected the
    respondents evidence, he found the complainant credible and convicted the
    respondent.

[5]

The trial judge held that the complainants evidence was that
    while she did not initiate the conduct of a sexual nature, she consented to it
    in the early stages, when it involved kissing and some touching externally.  He
    found that she never said that it was not consensual at the start.  Later,
    particularly once the respondents penis came out of his shorts, she began a
    series of some eleven protestations of no.

[6]

The SCAC found that the trial judge misapprehended the
    complainants evidence by finding that she was consistent in saying that the
    early parts of the sexual conduct were consensual, and that she never said it
    was not consensual at the start.  I agree with the SCAC.

[7]

There is no doubt, as the SCAC acknowledged, that in
    cross-examination the complainant said she consented at the beginning.
    However, the SCAC points persuasively to a number of passages in her video
    statement to the police (which was before the trial judge) and in her evidence
    in chief, which were very clear that she did not consent from the very
    beginning.

[8]

Several excerpts from her evidence in chief are enough to make
    the point.  She said that the first physical contact was the respondent
    touching her legs, something that left her shocked.  She then testified as
    follows:

Q.      The touching, the gliding on your leg what was the next
    thing that happened?

A.      He started kissing me.

. . .

Q.      Kissing you where?

A.      On my lips.

Q.      Okay.  Do you see that coming?

A.      Yes.

Q.      Okay so tell us about that?  Was there any discussion
    about kissing?

A.      There was no discussion about kissing it just  I guess
    it just happened.

Q.      Okay who started that; who kissed who?

A.      He kissed me.

Q.      What was your reaction to that?

A.      Again I was shocked.

Q.      Okay.  Why were you shocked?

A.      Because he has a girlfriend.

Q.      Sorry?

A.      Because he has a girlfriend.

Q.      Did you say anything about that?

A.      Yes I did.

Q.      What did you say?

A.      Ah you have a girlfriend; this is not right.

. . .

Q.      Did you want him to kiss you?

A.      No.

Q.      In your mind was it okay; if he would have asked would
    you have said thats fine go ahead?

A.      If he would have asked I would have said no.

[9]

Since
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, the law has
    been clear that in sexual assault, the absence of consent is assessed
    subjectively.  The actual state of mind of the complainant towards the touching
    at the time it occurred is determinative.  Against this standard, there can be
    absolutely no doubt that the passages quoted above constitute evidence of the
    complainants lack of consent in the early part of the sexual encounter.

[10]

In cross-examination, the complainant gave a contradictory account
    of the early part of the sexual encounter in which she agreed that she
    consented at the beginning.  The inconsistency between her two versions of
    events is clear.  The trial judge, however, proceeded to assess her credibility
    on the basis that no such inconsistency existed.

[11]

The SCAC was correct in concluding that the trial judge
    misapprehended the complainants evidence in a way that was very important to
    the central issue in this trial and in ordering a new trial as a consequence.

[12]

We see no error, let alone a clear error in the decision from
    which the Crown seeks leave to appeal.

[13]

Leave is therefore denied.

Released: February 16, 2012  STG

S.T.
    Goudge J.A.

I
    agree G.J. Epstein J.A.

I
    agree Newbould J. (ad hoc)


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(1), (2), or (3)
    of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.
    (1)
Any
    proceedings against an accused shall be held in open court, but the presiding
    judge or justice may order the exclusion of all or any members of the public
    from the court room for all or part of the proceedings if the judge or justice
    is of the opinion that such an order is in the interest of public morals, the
    maintenance of order or the proper administration of justice or is necessary to
    prevent injury to international relations or national defence or national security.

(2)
For the purpose
    of subsection (1), the proper administration of justice includes ensuring
    that.

(a)     the
    interests of the witnesses under the age of eighteen years   are safeguarded in
    all proceedings; and

(b)     justice system participants who are involved in
    the proceedings are protected.

(3)
If an accused is charged with an offence under section
    151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1,
    171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused
    applies for an order under subsection (1), the judge or justice shall, if no
    such order is made, state, reference to the circumstances of the case, the
    reason for not making an order.  R.S., c. C-34, s. 442; 174-75-76, c. 93, s.
    44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd
    Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7;
    1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16,
    34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss.
    4 and 8(3)(a).

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. T.R.S., 2012
    ONCA 105

DATE:  20120214

DOCKET: C51181

Doherty, Laskin JJ.A. and Brown R.S.J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Robert S.

Appellant

Lisa Loader, for the appellant

Alex Hrybinsky, for the respondent

Heard:  February 13, 2012

On appeal from the convictions entered on October 4, 2000
    by Justice Joseph M.W. Donohue of the Superior Court of Justice, sitting with a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied that the fresh evidence proffered on appeal meets the
    cogency requirements set out in
Palmer
(criteria 2, 3, and 4).  The
    evidence, a death certificate referable to the date of the appellants younger
    brothers death, is determinative on that factual issue.

[2]

The Crowns case against the appellant was far from strong as evinced by
    the acquittal of the appellant on most of the charges.  The fresh evidence impacts
    on the timing of one of the two events (the younger brothers death) on which
    the main complainant based her chronology of the relevant events.  The fresh
    evidence is inconsistent by a year with the complainants testimony as to the
    date of her younger brothers death.  Depending on how the complainant would
    react if confronted by the death certificate, a trier of fact could well
    conclude that on the complainants evidence the sexual assaults underlying the
    two convictions may have occurred while the appellant was still a juvenile and
    outside of the jurisdiction of the criminal courts.

[3]

The evidence was available at trial and clearly, with the benefit of
    hindsight, should have been led.  It is not suggested, however, that the
    failure to lead the evidence reflects any tactical decision made at trial.  It
    is probably best seen as an oversight explained in part by the nature of the
    defence advanced at trial.  The appellant adamantly denied that any of the
    sexual activity alleged against him occurred.  The defence consisted of an all
    out attack on the credibility of the complainants rather than a challenge to
    the timing of any specific event.  That attack was largely successful.

[4]

Despite the failure to lead the evidence at trial, we are satisfied that
    the interests of justice require that the evidence be admitted on appeal.

[5]

We stress, however, that the fresh evidence does not cast any doubt on
    whether the appellant committed the sexual assaults for which he was
    convicted.  The fresh evidence does, however, raise a very real question as to
    whether he committed those assaults as an adult or a juvenile.

[6]

A reasonable jury, considering the entirety of the record, could still
    conclude that the assaults occurred after the appellant turned 16.  The Crown
    is, therefore, entitled to a new trial.  The convictions are quashed and a new
    trial is ordered.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Tookhi, 2012 ONCA 90

DATE: 20120209

DOCKET: C51328

Laskin, Rosenberg and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Abdohadi Tookhi

Appellant

Mark C. Halfyard, for the appellant

Catherine Mullaly, for the respondent

Heard and endorsed: February 8, 2012

On appeal from the sentence imposed on October 28, 2009
    by Justice Paul M. Taylor of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

This joint submission was based on the assumption, apparently
    accepted by the trial judge, that the appellant would in a reasonable period be
    able to make restitution because of his good prospects for employment. The
    fresh evidence shows that ironically his criminal record now stands in the way
    of his obtaining employment in the field for which he has trained. He cannot
    get a pardon until he has paid the restitution and his inability to get a
    pardon prevents him from getting the type of employment that could lead to his
    making restitution of this very large amount: see
R. v. Chambers
, 2007
    ONCA 237.

[2]

The restitution order may thus, far from assisting his
    rehabilitation, undermine it.

[3]

Reducing the restitution order does not deprive the financial
    institutions of their ability to obtain civil judgments against the appellant.

[4]

Accordingly, leave to appeal is granted, the appeal is allowed
    and the restitution order is reduced to $40,000 to be distributed
pro rata
amongst the five victims.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Truong, 2012
    ONCA 91

DATE: 20120209

DOCKET: C51892

Rosenberg, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Khanh Truong

Appellant/Applicant

Zachary Kerbel, for the appellant

Ghazala Zaman, for the respondent

Heard and released orally: February 6, 2012

On appeal from the conviction entered on September 28,
    2009 by Justice John D.G. Waugh of the Ontario Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

There is one issue on this appeal: did the trial judge err in law in his
    assessment of the appellants credibility and that of one of the two involved
    police officers, Constable Jocko?

[2]

We see no reversible error by the trial judge in his approach to the
    evaluation of either witness credibility.

[3]

It need hardly to be said that the assessment of the credibility of
    witnesses at trial falls squarely within a trial judges domain.  That
    assessment attracts significant deference from a reviewing court.

[4]

In this case, the trial judge rejected the appellants testimony on
    several bases.  Chief among these was the fact that the appellants version of
    events as recounted in his trial testimony stood in stark contrast to that of
    the senior police officer at the scene in several critical respects.  In this
    context, it was open to the trial judge to take account of the fact that the
    version of events suggested by defence counsel in cross-examining the police
    officers was materially different than the appellants account and to conclude that
    the appellant was making much of his evidence up as he went along.  The trial
    judge expressly confirmed in his reasons that this was the telling feature of
    the appellants testimony that weighed in very large measure against the
    appellants credibility.  This was an entirely permissible approach to the
    assessment of the appellants credibility.  To the extent, therefore, that the trial
    judge relied on the rule in
Browne v. Dunn
in his consideration of the
    appellants credibility, this reliance was of little, if any, moment.

[5]

Nor do we see any error in the trial judges treatment of Constable
    Jockos testimony.  Constable Jocko was a police trainee.  He had no
    independent recollection of the events at issue, few notes of what occurred and
    very limited experience as a police officer, let alone as a police witness in
    judicial proceedings, at the relevant times.  Contrary to the appellants
    submission, these were highly relevant and proper considerations in the
    assessment of his credibility and, more importantly, the reliability of his
    testimony.  Moreover, given these factors, the trial judge was fully justified
    in attaching more weight to the testimony of the senior police officer than he
    accorded to that of Constable Jocko.

[6]

The appeal is dismissed.

M. Rosenberg J.A.

E.A. Cronk J.A.

H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Rollins v. English
    Language Separate District School Board #39, 2012 ONCA 104

DATE:  20120216

DOCKET: C50869

Doherty, Simmons and Epstein JJ.A.

BETWEEN

Lindsey Rollins, a minor, by her Litigation
    Guardian, Elizabeth Rollins, Elizabeth Rollins

Plaintiffs (Appellants)

and

English Language Separate District School Board
    #39, Oscar Chaput, John Doe

Defendants (Respondents)

Paul J. Pape and Shantona Chaudhury, for the plaintiffs
    (appellants)

James D. Virtue and Rasha El-Tawil, for the defendants
    (respondents)

Heard:  February 9, 2012

On appeal from the judgment of Justice Edward Ducharme of
    the Superior Court of Justice, dated July 13, 2009, with reasons reported at
    [2009] O.J. No. 6193.

ENDORSEMENT

[1]

The trial judge found as a fact that the appellant, when she was six
    years old, was struck on the head with rollerblades by a fellow student.  The
    incident occurred in the school playground at lunchtime.  The appellant submits
    that given that no report of the incident was ever made by any supervising
    teacher, the trial judges finding that the appellant was struck by the
    rollerblades is inconsistent with his further findings that a supervising
    teacher was present in the schoolyard at the time of the incident and that
    there was no breach of the schools duty of care owed to the appellant.  The
    appellant contends that the absence of any report concerning the incident
    compels one of two conclusions, either there was no supervisor present or, if a
    supervisor was present, he or she did not see the incident.  The appellant
    submits that either conclusion compels a finding that the school was
    negligent.

[2]

There was very little evidence about the incident itself, very little
    reliable evidence about the events following the incident, and no evidence of
    the events leading up to the incident.  The only eyewitness evidence testimony came
    from a young classmate of the appellant, who was six years old in 1990 when the
    incident occurred.  The appellants action was commenced in 1998 and the eyewitness
    testified at trial in 2009, some 19 years after the incident.

[3]

The trial judge carefully examined the evidence of this eyewitness.  He
    accepted only a small part of her evidence as it related to the actual incident
    and none as it related to the immediate aftermath of the incident.  The trial
    judges relevant findings of fact are set out in his reasons, at paras. 51 and
    53:

Against this backdrop, I have concluded that on May 15, 1990,
    Lindsey likely suffered an injury while playing in the schoolyard at the noon
    recess, and that the injury was probably caused by a boy striking her from
    behind with rollerblades.  Though the only eyewitness, Ms. Lozon, was six when
    she witnessed the blow, she never wavered in her assertion that she saw how it
    happened.  Sudden and traumatic as the moment was, resulting in Lindsey going
    to the ground, and perhaps momentarily losing or seeming to lose consciousness,
    it is entirely understandable, that even today, Ms. Lozon would retain a vivid
    recollection of it.

...

In my view, weighing all the relevant evidence, the plaintiffs
    have not established on a balance of probabilities that the boy swinging the
    rollerblades was older, or that the striking of Lindsey was anything but an act
    committed suddenly and without warning.  In the same way, the plaintiffs have
    not shown that the swinging of the rollerblades was for any time extending
    beyond mere seconds.

[4]

The trial judge also found as a fact that the incident was not reported
    to anyone at the school until several years later.  The failure to report the
    incident explained why it had not been investigated and no report had ever been
    prepared.

[5]

It was open to the trial judge to take this view of the evidence.  On this
    view, it cannot be said that the failure of a supervising teacher to intercede
    and prevent the injury demonstrates either that no supervisor was present or
    that if one was present, he or she failed to provide the required level of
    supervision and was negligent.  On the facts as found by the trial judge, the incident
    could well have occurred without any negligence on the part of a supervising
    teacher.  Similarly, on those facts, the entire event could have gone unnoticed
    by a supervising teacher.  In light of the absence of any evidence about what
    happened immediately before the appellant was hit and the absence of any
    reliable evidence about the events subsequent to the blow, it cannot be said
    that the failure of a supervising teacher to see the incident and attend to
    assist the appellant demonstrates that there was no supervising teacher on
    duty.  Nor can it be said that if there was a supervising teacher on duty, his
    or her failure to respond to the incident demonstrates negligence.  On this record,
    far too little is known about the circumstances surrounding the incident to
    draw either inference of negligence.  More to the point, it cannot be said that
    the trial judges refusal to draw those inferences was unreasonable.

[6]

In a related but more specific argument, the appellant submitted that
    the trial judge misapprehended the evidence of the school principal concerning
    the schools policy with respect to rollerblades.  In his reasons, the trial
    judge indicated that the principal had testified that there was a policy
    against the use of rollerskates and skateboards on school property and that, in
    his view, that policy would extend to rollerblades if they became an issue.  In
    fact, the principal had testified that the policy prohibited bringing
    skateboards or rollerskates on to school property at all.  The principal had
    indicated that, in his view, that prohibition also applied to rollerblades.

[7]

We are not satisfied that the trial judges misapprehension of the
    evidence was material to his finding that the appellant had failed to demonstrate
    any breach of the duty of the care owed to the appellant by the school.  In the
    absence of any evidence as to the circumstances surrounding the incident, it
    cannot be said that the mere fact that a student was in possession of
    rollerblades on school property, even if in contravention of school policy,
    established that the incident was caused by a failure to adequately supervise
    the playground and enforce school policies.  The failure to intercede and
    enforce the school policy regarding rollerblades before someone was hurt could
    certainly, in some circumstances, constitute negligence.  In other circumstances,
    it would not.  The appellant did not lead any evidence to establish
    circumstances that could justify a finding that the failure to intercede and
    enforce the schools policy against rollerblades before the incident occurred demonstrated
    a breach of the schools duty of care to the appellant.

[8]

There is no basis upon which we can interfere with the trial judges
    finding, at para. 120 of his reasons, that the school did not breach its duty of
    care owed to the appellant.

[9]

The trial judges finding that the plaintiff had failed to establish a
    breach of the duty of care owed to her by the school necessitated the dismissal
    of the action.  The trial judge went on to hold that the appellant had also failed
    to establish causation primarily because of the unknown aetiology of the
    disease from which she now suffers.

[10]

The
    appellant also attacked the causation finding on appeal.  As we are satisfied
    that the trial judges finding that there was no breach of the duty of care
    must stand, there is no need to consider the causation argument.  We decline to
    do so.

[11]

The
    appeal is dismissed.  The respondents do not seek costs and we would not impose
    any costs on the appeal.

Doherty J.A.

Janet Simmons J.A.

G.J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Romspen
    Investment Corporation v. Woods Property

Development Inc., 2012 ONCA 110

DATE: 20120217

DOCKET: C53496 and C54375

Laskin, Rosenberg and Rouleau JJ.A.

BETWEEN

Romspen Investment Corporation

Applicant (Respondent)

and

Woods Property Development Inc. and TDCI Holdings
    Inc.

Respondents

Ronald Slaght, Q.C. and John J. Chapman, for the
    appellant Home Depot Canada Inc.

David P. Preger and Lisa Lorne, for the respondent

Harvin D. Pitch, for the respondent SF Partners Inc.

Heard: November 18, 2011

On appeal from the orders of Justice Herman J.
    Wilton-Siegel of the Superior Court of Justice dated March 17, 2011 and
    September 28, 2011, with reasons dated March 17, 2011, September 28, 2011 and
    October 3, 2011, with the March 17, 2011 reasons reported at 2011 ONSC 3648, 75
    C.B.R. (5th) 109 and the October 3, 2011 reasons reported at 2011 ONSC 5704.

COSTS ENDORSEMENT

[1]

The appellant Home Depot of Canada Inc. seeks costs of the appeal in the
    amount of $62,719 and costs of the stay motion in the amount of $10,329.

[2]

The respondent Romspen Investment Corporation agrees that the amounts
    sought are reasonable.  Romspen, however, argues that there are special
    circumstances in this case which justify a departure from the general rule that
    a successful party is entitled to payment of its costs forthwith.

[3]

In Romspens view, because the matter is returning to the Superior Court
    for a decision on the merits, the costs should be in the cause of the outcome
    of the proceeding when it is reargued.  That is to say, if the motion by the
    Receiver, SF Partners Inc. succeeds, Home Depots costs of the appeal and the
    stay motion should not be payable by Romspen and the Receiver.  If, however,
    the Receivers motion fails, such costs should be payable by Romspen and the
    Receiver.

[4]

In the alternative, Romspen submits that Home Depots costs should be
    paid forthwith out of the funds being held in Miller Thomsons trust account.
    Those funds are held in purported compliance with Home Depots obligation to pay
    rent under its ground lease with Woods Property Development Inc.

[5]

The Receiver takes no issue with respect to the quantum being sought but
    argues that it should not be required to pay costs of the appeal because it has
    been managing the property on which the Home Depot store is located without
    receipt of any payment or contribution by Home Depot for rent or operating
    cost.

[6]

In our view, the circumstances outlined by Romspen and the Receiver do
    not warrant departing from the usual order that the successful party be paid
    its costs.  As a result, we award the appellant Home Depot its costs of the
    appeal fixed at $62,719 and costs of the stay motion fixed in the amount of
    $10,329.  These are inclusive of disbursements and applicable taxes and are to
    be payable by Romspen and the Receiver jointly and severally.

[7]

On consent of the parties, the cost orders of Wilton-Siegel J. dated
    August 22, 2011 and September 28, 2011 are vacated and the costs arising from
    these motions are left to the discretion of the judge hearing the new motion.

[8]

In addition, there will be an order that the accountant release the
    letter of credit filed to the credit of this matter and deliver it up to the
    appellant Home Depot.

John Laskin J.A.

M.
    Rosenberg J.A.

Paul
    Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ruffudeen-Coutts v. Coutts, 2012
    ONCA 65

DATE: 20120201

DOCKET: C53918

Feldman, Sharpe
          and Epstein JJ.A.

BETWEEN:

Aneesa
          Nadia Zamaludeen Ruffudeen-Coutts

Appellant
          (Moving Party)

and

Conrad
          Michael Coutts

Respondent
          (Responding Party)

Susan A.
          Metzler, for the appellant

Jodi L.
          Feldman, for the respondent

Heard: November
          24, 2011

On appeal from
          the order of Justice Peter Hambly of the Superior Court of Justice, dated May
          31, 2011.

Feldman J.A (Dissenting):

Introduction

[1]

This is an appeal from a judgment described as a consent
    judgment. The judgment dealt with custody and access to a two-year-old child.
    Under s. 133(a) of the
Courts of Justice Act
, R.S.O. 1990, c. C. 43, a
    consent judgment may be appealed with leave. The appellant mother seeks leave
    to appeal on the basis that her consent was given under duress by the comments
    made by the motion judge, including his instruction to counsel before lunch to
    consider their positions if the residence of the child were changed from the
    mother to the father.

[2]

The requirement for leave was raised before another panel of this
    court. That panel did not decide whether the order was made on consent, noting
    that the record raised issues of whether there was true consent to the order.

[3]

There is a procedural question whether the appellants correct
    route to properly raise the duress issue is rather under rule 59.06(2) of the
Rules
    of Civil Procedure
by motion to set aside the order, brought with fresh
    evidence, before a judge of the Superior Court.

[4]

I would not approach the matter in that way. In my view, although
    part of the order was made on consent, it is clear from reading the record of
    the hearing as well as the reasons of the motion judge that the entire order
    was not on consent. At least one paragraph was not in accordance with what
    counsel for the wife believed had been agreed. More significantly, the motion
    judge added three paragraphs when he delivered his Reasons for Judgment, six
    days after the day of the motion when the order was agreed to. In those
    circumstances, leave is not required:
LeBlond v. LeBlond
, [1998] O.J.
    No. 287 (C.A.).

[5]

However, if the order is viewed as a consent order that requires
    leave I would grant leave on a question of law, allow the appeal and send the
    matter back to be reheard by another judge.

[6]

This is a custody matter where the sole issue before the motion
    judge was the best interests of the child. The motion judge erred in law by
    failing to fully consider the best interests of the child as the basis for his
    decision, focusing instead on his negative view of the conduct of the mother in
    the litigation. He removed the two-year-old child from the custody of the
    mother and granted joint custody and shared primary residence of the child to
    the mother and father in circumstances where the parties were seriously at odds
    and could not get along, a restraining order was in place, and the father had
    only had supervised access up to that point. This is contrary to the decision
    of this court in
Kaplanis v. Kaplanis
(2005), 249 D.L.R. (4th) 620
    (Ont. C.A.), which held that joint custody should not be ordered where the
    parties are unable to get along sufficiently to make decisions regarding the
    care of the child.

Facts

[7]

The appellant mother and respondent father were married on April
    29, 2006 and separated on November 23, 2010. They have one child, a boy, born
    May 15, 2009. The mother commenced divorce proceedings on December 15, 2010 and
    brought an emergency motion which resulted in a temporary consent order of
    December 22, 2010. That order provided for residence with the mother,
    supervised access to the father in the presence of either his brother or her
    brother, an order restraining direct communication between the parties, police
    assistance to enforce the order and return the child to the mother following
    access visits, the holding of the childs passport by counsel, dealings with
    the home and other corollary matters.

[8]

The mothers original affidavit alleged that she was the sole
    caregiver to the child, having taken off 14 months from her job as an
    accountant at a large accounting firm following his birth. She alleged that the
    father showed little interest in caring for the child, was abusive to her
    including yelling, swearing and throwing things at her, and that she feared for
    her safety and that of the child. Other affidavits were subsequently filed by
    her, by her brother, an executive at a large corporation, by the father, a
    senior employee with the City of Guelph, and by his brother, a lawyer. The
    father denied her allegations, claimed that she was keeping the child from him
    and said that he was a good father. The other affidavits gave support to each
    side and added to the original.

[9]

On March 2, 2010, the father brought a motion for unsupervised
    access to the child. That motion was heard on May 31, 2011. Again, the motion
    was for interim relief pending trial. For the purpose of trial, the parties had
    scheduled two days for cross-examinations on affidavits immediately following
    the motion. At issue on the motion were two matters, extending the access times
    of the father and the supervision issue, and second, whether an assessment of
    the child was required for the purposes of trial. Both parties were represented
    by counsel (not the counsel on the appeal) throughout.

[10]

Because the motion hearing was recorded, a transcript of the
    hearing forms part of the record before this court. That transcript discloses
    that the motion judge made it clear from the beginning that having read the
    record, he was upset with the way the mother had carried on the litigation
    including her allegations against the father and her emergency motion at
    Christmas time. He observed that her conduct suggested that her intent was to
    alienate the child from his father. Although the parties were not asking that
    the primary residence of the child be moved on an interim basis at that time,
    he suggested to the parties at the lunch break that they each determine what
    conditions they would seek if the primary residence of the child were changed
    to be with the father.

[11]

I set out the passage in full:

THE COURT: Well it is almost ten after one.

MS.
      KLODNER [the fathers lawyer]: All right.

THE
      COURT:  So lets adjourn for the luncheon break.

MS.
      KLODNER: Okay, thank you.

THE
      COURT: Come back at 2:25. And I want you, Ms. Klodner, to seek
      instructions that if primary residence is with your client, what involvement
      would he want the mother to have.

MS.
      KLODNER: All right.

THE
      COURT: And I want Mr. Buck [the mothers lawyer] to seek instructions if
      primary residence is with the father, what involvement she would want with the
      child. Times, dates and so forth.

MS.
      KLODNER: Thank you, Your Honour.

[12]

The parties and their counsel then had negotiations over an
    extended lunch period. Counsel for the mother asked for more time, saying that
    they had made some progress on resolution. The judge responded that Well you
    will resolve it with my approval.All right? I am the one that makes the order.
    So you will resolve it only with my approval.

[13]

After the parties came back to discuss what they had agreed to,
    they again needed more time to discuss the issues. The court was prepared to
    give more time, but told them that we have got to get this resolved today. A
    little time. And it is quarter to three and as I say I do not like keeping the
    staff beyond five.

[14]

The parties and counsel again went out to draft terms of an
    agreement. The judge told them he would not approve a police assistance order,
    which he felt was inappropriate in a child custody context. He made it clear
    that he believed parents should get along for the sake of the child.

[15]

When the parties returned, they had agreed to a final order for
    shared custody of the child, with the childs primary residence being one week
    with the mother, then one with the father. There was also an order for 12 hours
    access on the non-residential week. However, counsel disagreed on whether that
    was a final order or a trial order. The mothers counsel thought he had
    agreed to a trial order, while the fathers said they had agreed to a final
    order. The judge said he thought the word written was final and he made it
    final. The agreement also provided on a final basis that a third party may
    assist with the exchange of the residence of the child. The parties also agreed
    to attend a counsellor to work out a parenting plan and to come back to court
    if they could not agree. Other matters were agreed or left to be determined at
    a later time. The motion judge concluded by commending the parties for working
    it out after listening to me.

[16]

Six days later, the motion judge released Reasons for Judgment on
    the motion. In his reasons, the motion judge detailed the history of the matter
    as he saw it, both procedural and factual. His description makes clear his view
    that the wife and her counsel had overreached in bringing the original
    emergency motion and that the husband had not been represented by the lawyer of
    his choice when he consented to the terms of the original order. The motion
    judge found that there was no evidence taking the wifes case at its highest
    in her affidavit to support an order for supervised access to the child by the
    husband. This was after the husband had consented to the order which was
    approved by another motion judge at the time.

[17]

The motion judge was particularly incensed by an allegation by
    the mother in a later affidavit that she had seen the father change the babys
    diaper when he was two or three months old and fondle his penis causing an
    erection. The motion judge rejected the allegation as patently absurd and
    obviously false. He referred to the fact that the mother described the father
    as angry, aggressive, violent, lazy, bullying, vindictive and using vulgar
    language. In her affidavit she gave examples of these behaviours including
    throwing things at her and calling her a f b.... He concluded that she was
    exaggerating and making extreme unsubstantiated allegations which constituted
    evidence of attempting to alienate the father from the child.

[18]

The motion judge accepted the fathers plan of care involving
    members of his family who were in court and whom he found to be competent. The
    mothers brother had filed an affidavit based on his observations of the father
    with the child where he expressed negative views about him. The trial judge
    ruled that those opinions were inadmissible and struck the affidavit from the
    record. He further stated that although he would not order it, it was his view
    that given the hostility of the wifes brother to the husband, that he should
    not have involvement with the child.

[19]

I set out para. 10 of the reasons in full:

I
      told counsel that it was my view after spending considerable time reading the
      material and listening to their submissions, that the primary residence of the
      child should be with the father and the issue was whether the wifes
      involvement with the child should be supervised in a manner that would ensure
      that she did not attempt to alienate the child from the father. I also
      emphasized that the child was entitled to the involvement and support of both
      parents in his life as he grew up. After receiving my view, counsel asked for
      time to seek instructions from their clients, which I readily gave them. They
      eventually filed a consent to an order for shared custody of the child with the
      child residing with each in alternate weeks and with other arrangements which
      flow from this concept. I am prepared to sign an order to the terms of the
      consent and with the following additional paragraphs:

1.       Neither
      party shall criticize the other or speak adversely of the other in the presence
      of the child.

2.       Each
      party will take care to ensure that anyone assisting him or her in the care of
      the child shall not criticize or speak adversely of the other party in the
      presence of the child.

3.       The
      affidavit of Zamaludeen Ruffudeen [the mothers brother] sworn February 27,
      2011, is struck out and shall be removed from the Continuing Record.

Law

[20]

The
Courts of Justice Act
specifically addresses the issue
    of an appeal from a consent order and provides in s. 133(a):

133.
      No appeal lies without leave of the court to which the appeal is to be taken,

(a)
      from an order made with the consent of the parties .

[21]

In
LeBlond v. LeBlond
, a decision of Austen J.A. sitting
    in Chambers, counsel for the respondent on the motion took the position that
    part of the order sought to be appealed was made on consent and required leave
    under s. 133(a). Austen J.A. rejected the concept that a judgment could be
    divided with part requiring leave and part not. He went on to hold that in that
    circumstance no leave was required, stating: [a]lthough by far the greater
    part of the judgment was on consent, I treat none of it as requiring leave to
    appeal (para. 29).

[22]

This was also a case where part of the order was made on consent,
    while part was not, as I outlined above. There is certainly precedent in such
    circumstances to not require leave to appeal.

[23]

However, if the order under appeal is a consent order that
    requires leave to appeal, I would grant leave on the basis that the motion
    judge made an error of law by failing to fully consider the best interests of
    the child, which is always required, including when the order is on consent. I
    would also allow the appeal on that basis and order a new hearing.

[24]

In
Kaplanis v. Kaplanis
, this court reversed a decision
    made by a trial judge following trial which granted joint custody of a child
    and ordered the parents to attend counselling to improve their parenting skills
    with the counsellor to make decisions for the child if the parents were unable
    to agree.

[25]

Weiler J.A. began her analysis by stating the most fundamental
    principle of child custody law:

As
    in any custody case, the sole issue before the trial judge was the best
    interests of the child. (para. 10)

[26]

This statement accords with the statutory requirement of both s.
    24 of the
Childrens Law Reform Act
, R.S.O. 1990, c C.12, and s.16(8)
    of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.). Nor does the
    consent of the parties reduce the judges obligation to ensure that the order
    made is in the best interests of the child.
[1]

[27]

Weiler J.A. stated, at para. 2:

I
      would agree with the mother that the order of joint custody should be set aside
      on the grounds that the trial judge erred in principle in awarding joint
      custody (a) where there was no evidence of historical co-operation and
      appropriate communication between the parents, and (b) in the hope that it
      would improve the parenting skills of the parties.

[28]

Although no two cases are exactly alike, there are some
    similarities with this case. In particular, in that case the trial judge
    discounted the evidence of a neighbour who witnessed a screaming incident when
    the father came to pick up the child for access. The trial judge saw it as an
    attempt, on the part of the wife, to buttress her claim for sole custody, and
    went on to express her hope  that the parents will put closure on the
    disappointment and resentments that flow from their failed marriage (quoted at
    para. 7).

[29]

Weiler J.A. went on to find that where the parties have trouble
    communicating, before a joint custody order can be made there must be some
    evidence that the parties will be able to have effective communication,
    especially where the child is young and cannot communicate his or her own
    needs. For the same reason, expert evidence regarding the childs psychological
    and emotional needs may be necessary to assist the court where a joint custody
    plan is proposed in such circumstances.

Application to this Case

[30]

In my view, the record discloses that the motion judge in this
    case was focused on his perception that the mother was trying to alienate the
    child from the father, and did not consider the best interests of the child as
    required by the statutes and as discussed by Weiler J.A. in the
Kaplanis
case.

[31]

The parties were before the court on an interim motion to
    determine revised access terms for the father pending trial and whether an
    expert assessment was needed. It was the father who wanted the assessment. None
    of the evidence had been tested by cross-examination. The parties had two days
    set aside for cross-examinations on the affidavits, the contents of which
    concerned the trial judge. The evidence was clear that they were not
    communicating. The existing order contained a clause that provided for police
    involvement in transferring the child following access visits to the father.
    The child had never spent a night with the father alone.

[32]

When the motion judge suggested that he was considering switching
    the residence of the child from the mother to the father, the parties with
    their counsel negotiated not an interim, but a final custody arrangement which
    the trial judge ultimately approved with some later additions.

[33]

In my view, on the record before him, the motion judge erred in
    principle by approving the final arrangement reached by the parties in these
    circumstances, as it was not in the best interests of the child. Not only was
    the joint custody arrangement contrary to principles discussed by Weiler J.A.
    in
Kaplanis
,
but as the order is a final order, there was no
    transition period, or opportunity to come back to court once the new situation
    had been in place for a period of time in order to see whether it was working.

[34]

Obviously it is important that separating parents be encouraged
    to come to agreed arrangements regarding the custody of their children, without
    a trial or extensive court involvement. In t
he majority
    of cases, this can be achieved by agreement. However in this case, the parties
    were clearly at war, they were making serious allegations against each other
    that could affect the well-being of the very young child, and they required
    third party involvement in order to deal with each other. In those
    circumstances, the courts obligation to ensure that the agreement reached was
    in the best interests of the child required at least testing the evidence and
    possibly expert involvement before making a final order.

Result

[35]

For the above reasons, I would grant leave to appeal (if
    necessary), allow the appeal, set aside the final order for joint custody and
    order a new hearing regarding interim custody arrangements for the child within
    the next two weeks. At that time, the parties with their counsel and the court
    can determine what further evidence is required for an interim and final order
    to be made.

[36]

I would order the costs of appeal and the motion for leave to the
    appellant fixed at $8,000 inclusive of disbursements and H.S.T.

Signed:        K. Feldman J.A.

Epstein J.A.:

A.

Factual background

[37]

The parties were married in 2006 and separated in 2010.  Ethan is
    the only child of the marriage.

[38]

On December 15, 2010, Ms. Ruffudeen-Coutts brought an application
    for a divorce, sole custody of Ethan with only supervised access by Mr. Coutts,
    child support, and other relief unrelated to the issues before this court. Mr.
    Coutts brought a counter-motion seeking shared custody.

[39]

A few days later, on December 22, 2010, Ms. Ruffudeen-Coutts
    brought a motion on an urgent basis for a temporary order for sole custody of
    Ethan with access to Mr. Coutts on a supervised basis, exclusive possession of
    the matrimonial home and a restraining order against Mr. Coutts.  Negotiations
    resulted in a temporary agreement whereby Ethan would reside with Ms. Ruffudeen-Coutts
    and Mr. Coutts would have supervised access at specified times.  As well, Mr.
    Coutts would be subject to a restraining order.  This agreement was reflected
    in a consent order endorsed that day.

[40]

On March 2, 2011, Mr. Coutts brought a motion on an urgent basis
    for a change in access and the return of his passport, which was, along with
    the passports of both Ms. Ruffudeen-Coutts and Ethan, being held by counsel
    pursuant to an earlier consent order made on December 22, 2010.  Ms. Ruffudeen-Coutts
    brought a cross-motion for contempt based on allegations that Mr. Coutts was
    not cooperating with efforts to sell the matrimonial home. Again, the parties
    were able to negotiate a settlement. Their agreement dealt with all issues then
    in dispute except for Mr. Coutts access to the child, certain child care
    expenses and an assessment requested by Mr. Coutts under s. 30 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12.

[41]

These motions were adjourned and the unresolved issues came
    before Hambly J. on May 31, 2011.

[42]

At the hearing, both parties were represented by counsel. During
    the proceeding, counsel for Ms. Ruffudeen-Coutts requested time to seek
    instructions from his client with a view to a possible resolution. After a
    short break, the parties advised that they had reached an agreement, the
    essence of which provided that custody and support of the child would be shared
    and that there would be no spousal support.  Minutes of Settlement were signed
    and presented to the motion judge who indicated that he would grant an order in
    accordance with the consent of the parties.

[43]

Oddly, on his own initiative, the motion judge returned to the
    matter a week later and wrote reasons in which he purported to explain his
    willingness to endorse the consent.  But he did not stop there. He went further
    and suggested the addition of three terms to the order. These terms, peripheral
    to the issues of importance to the parties, provided for prohibitions against
    the parties criticizing each other, or allowing others to criticize them in
    front of their son, and for the removal of Ms. Ruffudeen-Coutts brothers
    affidavit from the record.

[44]

Ultimately, the order that was issued and entered dealt with all
    unresolved matters between the parties, on a final basis. It contained the three
    additional terms that the motion judge had proposed to the parties.

[45]

On June 15, 2011, Ms. Ruffudeen-Coutts appealed the order on the
    basis that during the hearing the motion judge had made a number of serious
    erroneous comments regarding her conduct.  Her submission is that the judges
    treatment of her placed her under duress such that her decision to consent to
    the order could not and did not amount to consent in law.

[46]

Mr. Coutts brought a motion to quash the appeal on the grounds
    that the order was on consent and Ms. Ruffudeen-Coutts had not sought or been
    granted leave to appeal the order.  Mr. Coutts relied on s.133(a) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, which provides that a consent order
    may only be appealed with the leave of the court to which the appeal is
    taken.

[47]

The leave requirement was the only issue considered by the panel
    that heard the motion to quash on November 15, 2011.  The motion was
    dismissed.  In a brief endorsement MacPherson J.A. explained the panels
    reasoning:

We are of the view that, because this was a consent order,
      leave to appeal to this court needed to be sought. Through inadvertence, the
      proper leave materials were not prepared and are not before us today. However,
      a reading of the record before Hambly J. does raise issues of whether there was
      consent to the order. The appeal is scheduled to be heard on November 24, 2011.

The motion to quash is dismissed. The appellant must prepare a
      proper record for leave to appeal for the panel hearing the matter next week.
      It will be for the panel to determine how the leave/merits hearing(s) will
      proceed.

[48]

Ms. Ruffudeen-Coutts has now provided the court with material
    upon which to determine the matter of leave.  However, her assertion that she
    was under duress at the time she entered into the agreement that formed the
    foundation of the order is not supported by any affidavit evidence from either
    her or her counsel on the motion before Hambly J.

B.

Whether Leave to Appeal Should be Granted

(1)

Was there consent to the
      order and therefore is leave to appeal

required?

[49]

Before dealing with whether leave to appeal ought to be granted,
    it is necessary to address whether the order under appeal is, in fact, a
    consent order. Counsel for Ms. Ruffudeen-Coutts urges this court to hold that
    it is not.

[50]

Despite the unusual background of this matter, particularly the inclusion
    in the order of the three additional terms, the order, in my view, is a consent
    order.

[51]

First, since this issue has already been decided by a panel of
    this court, in my view, it is not open to us to revisit the matter. However, as
    the matter was fully argued before us, I would add the following points.

[52]

The order under appeal that the parties approved and that was
    issued and entered by the court is specifically identified on its face as being
    on consent.

[53]

While all of the claims were for temporary relief, the motion
    judge justified making a final order on the basis that the parties consented.

[54]

As previously mentioned, the additional terms concerned
    peripheral matters relating to civility and the status of a piece of affidavit
    evidence. They did not alter the nature of the order that Ms. Ruffudeen-Coutts
    is seeking to appeal.

[55]

Finally, it is significant that the motion judge indicated he was

prepared
to sign an order on the terms of consent with the additional
    paragraphs, and provided counsel with the opportunity to make further
    submissions on the matter, either in writing or in person, if necessary
    [Emphasis added.]. The significance is that, given there is nothing in the
    record to suggest otherwise, the inference can be drawn that they consented to
    the inclusion of these terms.

[56]

Given my conclusion that the impugned order is on consent, Ms. Ruffudeen-Coutts
    requires leave to appeal.

(2)

Should leave to appeal be granted?

[57]

I now turn to whether leave ought to be granted and, necessarily,
    the test for leave to appeal a consent order.

The Test

[58]

I begin with the observation that s. 133(a) of the
Courts of
    Justice Act
does not specify grounds for granting leave to appeal a
    consent order.

[59]

A review of the limited jurisprudence respecting leave to appeal
    consent orders, in Ontario and elsewhere in Canada, reveals that no clear test
    has emerged for granting leave in consent matters. However, what is clear is
    the resistance to allowing a review of issues that the parties have represented
    to the court as having been resolved. The expression of this resistance dates
    back to 1876, in the English case of
Holt v. Jesse
, 3 Ch.D. 177, at p. 184:

That is tantamount to giving a general license to parties to
      come to this Court and deliberately to give their consent, and afterwards at
      their will and pleasure come and undo what they did inside the court, because
      on a future day they find they do not like it.

[60]

See also
Nguyen v. Nguyen
, 1999 CarswellOnt 2668 (S.C.);
Fott v. Fott
, 2001 ABQB 327, at paras. 4, 22, and 33.

[61]

Some assistance in determining when leave to appeal a consent
    order should be granted can be found in Donald Browns
Civil Appeals
,
    looseleaf  (Toronto: Canvasback Publishing, 2009) at p. 4-60:

In all jurisdictions, leave to appeal is required from an order
      made on consent, in some instances to be given by the judge or court making the
      consent judgment.  The underlying rationale for requiring leave would appear to
      be that a consent order is a contract of the most formal nature, made in the
      context of adversarial judicial proceedings.  Accordingly, apart from orders
      dealing with the custody of child (such as a consent adoption order), the same
      principles applicable to contracts are applied, and leave to appeal is unlikely
      to be granted unless the consent judgment was obtained by fraud, duress,
      mistake, or some other vitiating circumstance. [Citations omitted.]

[62]

In this passage, the author makes two points that are relevant to
    this case.

[63]

First, he observes that consent orders have their foundation in contract.
    It follows that they may be appealed on the basis that the circumstances
    surrounding the consent were such that there was no enforceable agreement. This
    engages standard contract principles: see
Rick v. Brandsema
, 2009 SCC
    10, 1 S.C.R. 295, at para. 64;
McCowan

v. McCowan
(1995), 24 O.R.
    No. 2245, at p. 712.

[64]

It follows that in cases where the issue relates to the validity
    of consent, leave to appeal should not be granted unless the evidence before
    the court on the leave application demonstrates that there is an arguable case
    that, at the time the agreement that formed the basis of the consent order was
    entered into, the moving party could not or did not consent.  Such evidence may
    relate to factors that may undermine the enforceability of contracts, such as fraud,
    duress, or undue influence.

[65]

The second point Brown makes is that matters involving children
    fall into a special category.

[66]

The distinction is clearly based on the courts obligation to
    give priority to the best interests of the child: see
Childrens Law Reform
    Act
, R.S.O. 1990, c. C.12, ss. 19 and 24;
Family Law Act
, R.S.O.
    1990, c. F.3, s. 56;
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.), s.
    16(8); see also
M.A. v. C.P.
, 2010 ONSC 5481, 98 R.F.L. (6th) 434.

[67]

This priority is reflected in the general statutory provisions
    listed above. In addition, s. 21(2) of the
Childrens Law Reform Act
requires a judge, before granting a consent order involving custody or access,
    to receive a parenting affidavit that includes the partys proposed plan for
    the childs care and upbringing, information respecting the persons
    involvement in other family proceedings or any criminal proceedings, and any
    other information known to the person that is relevant to the factors to be
    considered by the court under subsection 24 (2), (3) and (4) in determining the
    best interests of the child. Further, s. 67.(1) of the
Childrens Law
    Reform Act
requires the court to bear in mind the best interests of the
    child in making an order on consent.

And both s. 37 of the
Family
    Law Act
and s. 15.1(7) of the
Divorce Act
provide that in the face
    of the parties consent, a court may only award an amount for child support
    that departs from the child support guidelines if it is satisfied that
    reasonable arrangements have been made for the support of the child to whom the
    order relates. A judge who is satisfied of the applicable requirements is
    entitled to endorse the parties consent through formal court order.

[68]

Before articulating the test that applies for granting leave to
    appeal that, in my view, applies to consent orders involving children, I make
    the following three observations.

[69]

First, while consent orders are not ordinarily accompanied by
    reasons, in cases involving children, the statutory requirements I have
    referred to above demonstrate that the judges determination should attract
    deference.

[70]

Second, finality itself has been recognized as being in the best
    interests of the child, as was emphasized by the Supreme Court in
Van de
    Perre v. Edwards
, 2001 SCC 60, 2 S.C.R. 1014, at para. 13:

[F]inality is not merely a social interest; rather, it is
      particularly important for the parties and children involved in custodial
      disputes. A child should not be unsure of his or her home for four years, as in
      this case. Finality is a significant consideration in child custody cases,
      maybe more so than in support cases, and reinforces deference to the trial
      judges decision.

[71]

Third, family law practice and procedure encourages parties to
    come to an agreement on as many issues as possible. As a consequence, consent orders
    are regularly granted.  Routinely allowing such orders to be appealed simply
    because they deal with issues pertaining to children would have the wholly
    undesirable effect of providing yet another route to prolonged litigation in
    family law matters.

[72]

Accordingly, while cases in which leave to appeal consent orders
    involving children must be treated differently, the threshold for obtaining
    leave is still high.

[73]

In my view, leave to appeal consent orders in family law cases
    involving children should not be granted unless, bearing in mind the deference
    I have identified, the record demonstrates an arguable case that the order, at
    the time it was made, was not in the child(ren)s best interests.

The Test as Applied to this
    Case

[74]

In her factum on the motion for leave, Ms. Ruffudeen-Coutts submits
    that the motion judge failed, in various respects, to consider Ethans best
    interests.  However, there is nothing in the record that supports the
    conclusion that the judge did not honour his statutory obligations.  Indeed, he
    actually wrote reasons explaining why he supported the parents settlement as
    being in Ethans best interests.  It is also worth noting that the order in
    this case was for shared custody, which on its face, is consistent with the
    maximum contact principle articulated in s. 16(10) of the
Divorce Act
.

[75]

Of course, in a family law case where no concern is raised about
    the best interests of the children, a party may still be granted leave on the
    basis of the test applicable to civil cases generally, where principles of contract
    law that potentially undermine consent are engaged.

[76]

This takes us to the real ground raised in Ms. Ruffudeen-Coutts
    leave application: her submission that when she entered into the agreement she
    was under duress. As previously noted, no evidence has been tendered to support
    that argument. While I find
    certain passages in the transcript of the hearing before the motion judge
    troubling, Ms. Ruffudeen-Coutts has provided no evidence as to how or why this
    treatment of her affected her ability to enter into the agreement that formed
    the basis of the consent order.  Ms. Ruffudeen-Coutts was represented by
    counsel yet there is no evidence to suggest that her counsel rendered
    ineffective advice or assistance. Nor is there any evidence from counsel about
    how, if at all, Ms. Ruffudeen-Coutts was affected by the conduct of the
    presiding judge. In the end, we are left with this: Ms. Ruffudeen-Coutts, with
    the assistance of legal counsel, agreed to settle the case and the motion judge
    made his order on the basis of her consent.

C.

Conclusion and Disposition

[77]

In my view, on this record, Ms. Ruffudeen-Coutts assertion of
    duress is doomed to virtually certain failure and accordingly, I would refuse
    to grant leave to appeal. I would invite counsel to make submissions as to
    costs within ten days of the release of these reasons.

[78]

However, as counsel for the respondent conceded in oral argument,
    Ms. Ruffudeen-Coutts is not left without an opportunity to address her
    concerns of duress upon a proper record and in the appropriate forum.  I would
    dismiss her application for leave to appeal without prejudice to her bringing a
    motion under rule 59.06(2) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194 that allows a party to bring a motion to set aside the order on
    the ground of facts arising or discovered after the order was made.

[79]

Given the circumstances surrounding the order that Ms.
    Ruffudeen-Coutts alleges contributed to her duress, if brought, a motion under
    rule 59.06 should be heard by a judge of the Superior Court other than Hambly
    J.

Signed:        G. J. Epstein J.A.

I agree Robert J. Sharpe J.A.

Released: KF FEBRUARY 1, 2012

[1]
For example, both the
Family Law Act
, R.S.O. 1990 c.F.3 at s. 37(2.5)
    and the
Divorce Act,
R.S.C. 1985, c. 3 (2nd Supp.) at s. 15.1(7)
    provide that in the face of the parties consent, a court may only award an
    amount for child support that departs from the
Child Support Guidelines
,
    O. Reg. 391/97, if the court is satisfied that, (a) reasonable arrangements
    have been made for the support of the child to whom the order relates.


COURT OF APPEAL FOR ONTARIO

CITATION: Sharma v. Timminco
    Limited, 2012 ONCA 107

DATE: 20120216

DOCKET: C53624, C53642 and C53644

Goudge, Armstrong and Lang JJ.A.

BETWEEN

Ravinder Kumar Sharma

Plaintiff (Respondent)

and

Timminco Limited, Photon Consulting LLC, Rogol Energy
    Consulting LLC, Michael Rogol, Dr. Heinz Schimmelbusch, Robert Dietrich, René Boisvert,
    Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D. Winfield, Mickey M.
    Yaksich and John P. Walsh

Defendants (Appellants)

Proceedings under the
Class
    Proceedings Act, 1992

Alan L.W. DSilva, Daniel S. Murdoch and Lesley Mercer,
    for the appellants Timminco Limited, Dr. Heinz Schimmelbusch, Robert Dietrich,
    René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D.
    Winfield and Mickey M. Yaksich

Paul Le Vay and Brendan Van Niejenhuis, for the
    appellant Photon Consulting LLC

Derek J. Bell, for the appellant John P. Walsh

Michael C. Spencer, Won J. Kim and Victoria Paris, for
    the respondent

Heard: November 2, 2011

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated March 31, 2011, with reasons reported at 2011
    ONSC 2040.

Goudge
    J.A.
:

[1]

The issue raised by this appeal is whether s. 28 of the
Class
    Proceedings Act, 1992
, S.O. 1992, c. 6 (the
CPA
) can operate to
    suspend the limitation period applicable to the statutory cause of action for
    misrepresentation provided by s. 138.3 of Part XXIII.1 of the Ontario
Securities
    Act
, R.S.O. 1990, c. S.5 (the
OSA
) before an action under that
    part is commenced.

[2]

At first instance the motion judge answered that question
    affirmatively.  For the reasons that follow, I have come to the opposite
    conclusion and I would therefore allow the appeal.

[3]

The essential facts are easily stated.  On May 14, 2009 the respondent
    commenced a proposed class action alleging misrepresentations by the appellants
    that adversely affected the value of shares of Timminco Limited in the
    secondary market.  These misrepresentations are alleged to have commenced on
    March 17, 2008 and continued until November 11, 2008.

[4]

The respondents statement of claim alleges two common law causes of
    action, negligence and negligent misrepresentation.  It also indicates that the
    respondent will seek an order granting leave to assert the statutory cause of
    action for misrepresentation provided by s. 138.3 of Part XXIII.1 of the
OSA
.

[5]

By the end of February 2011, the respondent had not yet sought that
    leave and, as a result, was faced with a possible limitation issue.  Part
    XXIII.1 imposes a limitation period of three years from the misrepresentation
    for the commencement of an action under this Part.  It also provides that such
    an action can be commenced only with leave.

[6]

Faced with this, the respondent moved for an order declaring that this
    limitation period is suspended pursuant to s. 28 of the
CPA
.  The
    result was the order that is now appealed.

[7]

The relevant statutory provisions in the
OSA
are found in Part
    XXIII.1 of the legislation, which was proclaimed in effect on December 31,
    2005.  Part XXIII.1 provides for statutory civil liability where
    misrepresentations are made that adversely affect the value of securities
    purchased in the secondary market (as opposed to purchases from an issuer in a
    primary distribution).  Enacted after much careful study, this Part provided
    the counterpart to Part XXIII, which, for some time, has provided a statutory
    cause of action for misrepresentation to purchasers of securities in the
    primary market.

[8]

In Part XXIII.1, section 138.3 provides a statutory cause of action
    against an issuer and those acting on its behalf for misrepresentation to
    persons who acquire the issuers securities in the secondary market.

[9]

Section 138.8(1) provides that an action under s. 138.3 may not be
    commenced without leave of the court.  This differs from Part XXIII, which does
    not require leave for commencement of an action.  Section 138.8(1) reads as
    follows:

Leave to
    proceed

138.8 (1)
No
    action may be commenced under section 138.3 without leave of the court granted
    upon motion with notice to each defendant. The court shall grant leave only
    where it is satisfied that,

(a) the action is being brought in good faith; and

(b) there is a reasonable possibility that the
    action will be resolved at trial in favour of the plaintiff.

[10]

Section
    138.14 provides that an action under s. 138.3 must be commenced within three
    years of the misrepresentation:

Limitation
    period

138.14
No
    action shall be commenced under section 138.3,

(a) in the case of misrepresentation in a
    document, later than the earlier of,

(i) three years after
    the date on which the document containing the misrepresentation was first
    released, and

(ii) six months after
    the issuance of a news release disclosing that leave has been granted to
    commence an action under section 138.3 or under comparable legislation in the
    other provinces or territories in Canada in respect of the same
    misrepresentation;

(b) in the case of a misrepresentation in a public
    oral statement, later than the earlier of,

(i) three years after
    the date on which the public oral statement containing the misrepresentation
    was made, and

(ii) six months after
    the issuance of a news release disclosing that leave has been granted to
    commence an action under section 138.3 or under comparable legislation in
    another province or territory of Canada in respect of the same
    misrepresentation; and

(c) in the case of a failure to make timely
    disclosure, later than the earlier of,

(i) three years after
    the date on which the requisite disclosure was required to be made, and

(ii) six months after
    the issuance of a news release disclosing that leave has been granted to
    commence an action under section 138.3 or under comparable legislation in
    another province or territory of Canada in respect of the same failure to make
    timely disclosure.

[11]

The
    relevant provision of the CPA is s. 28(1).  It provides for the suspension of
    the limitation period applicable to a cause of action asserted in a class
    proceeding, and for the circumstances under which it resumes running:

Limitations

28.  (1)
Subject
    to subsection (2), any limitation period applicable to a cause of action
    asserted in a class proceeding is suspended in favour of a class member on the
    commencement of the class proceeding and resumes running against the class
    member when,

(a) the member opts out of the class proceeding;

(b) an amendment that has the effect of excluding
    the member from the class is made to the certification order;

(c) a decertification order is made under section
    10;

(d) the class proceeding is dismissed without an
    adjudication on the merits;

(e) the class proceeding is abandoned or
    discontinued with the approval of the court; or

(f) the class proceeding is settled with the
    approval of the court, unless the settlement provides otherwise.

[12]

The
    motion judge granted the respondents motion.  His order declares that the
    limitation period in s. 138.14 of the
OSA
is suspended pursuant to s.
    28 of the
CPA,
effective as of the date of the issuance of the
    statement of claim on May 14, 2009.

[13]

At
    para. 50 of his reasons, the motion judge held that s. 28 of the
CPA
applies to any limitation period applicable to a cause of action and that
    this includes a cause of action under Part XXIII.1 of the
OSA
.  He saw
    no justification for s. 28 to operate for Part XXIII causes of action, but not
    for Part XXIII.1 causes of action just because of the leave requirement for the
    latter.  He pointed to s. 28 speaking of a cause of action being asserted and
    concluded that this did not depend on the commencement of litigation.  Rather,
    in his view, s. 28 requires only that a cause of action be mentioned in an
    already commenced class proceeding for the limitation period applicable to it
    to be suspended.  He held that to require that leave be granted before s. 28 of
    the
CPA
applied would defeat its purpose.

[14]

He
    therefore concluded that because the class proceeding commenced by the
    respondent for common law negligence and negligent misrepresentation mentioned
    the s. 138.3 cause of action, the limitation period applicable to it was
    suspended.

ANALYSIS

[15]

It
    is not disputed that there has been no leave granted pursuant to s. 138.8 of
    the
OSA
, that the respondents class proceeding is not an action
    commenced under s. 138.3, and that leave is required to add the s. 138.3 cause
    of action to the respondents class proceeding.  The question is whether the
    respondents mention in his class proceeding of his intention to seek leave is
    enough to activate s. 28 of the
CPA
, so as to suspend the limitation
    period applicable to the s. 138.3 cause of action.  Is it enough to be able to say
    that this cause of action has been asserted in the respondents class
    proceeding?

[16]

The
    suspension provision in s. 28(1) of the
CPA
provides that any
    limitation period applicable to a cause of action asserted in a class
    proceeding is suspended in favour of a class member on the commencement of the
    class proceeding.  These words must be read in their grammatical and ordinary
    sense, in the full context of the scheme of the
CPA
, its object and
    the intention of the legislature.  See:
Bell ExpressVu Limited Partnership
    v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[17]

The
    Canadian Oxford Dictionary
, 2d ed., defines assert as make or enforce a
    claim to (
assert ones rights
).
Blacks Law Dictionary
defines assert as to invoke or enforce (a legal right): see Henry C. Black,
Blacks Law Dictionary
, 8th ed. (St. Paul: Thomson West, 2004).  By
    contrast,
The Canadian Oxford Dictionary
defines mention as refer
    to or remark on incidentally.
Blacks Law Dictionary
does not
    include the word.  Clearly, assert is a significantly more forceful concept.

[18]

Without
    leave having been granted, a s. 138.3 cause of action cannot be enforced.  It
    cannot be invoked as a legal right.  Section 138.14 says as much.  Thus, giving
    the suspension provision in s. 28(1) of the
CPA
its ordinary meaning,
    the s. 138.3 cause of action cannot be said to be asserted in the respondents
    class proceeding since no leave has been granted.

[19]

The
    respondent argues that it is significant that s. 28(1) requires not that a cause
    of action be commenced, but only that it be asserted.  However, this choice
    of language is entirely appropriate.  A cause of action is not commenced.  That
    is a concept applicable not to a cause of action but to the litigation in which
    it is asserted.

[20]

Thus,
    in my view as applied to the s. 138.3 cause of action, the grammatical and
    ordinary meaning of the s. 28(1) suspension provision is that without leave
    being granted the cause of action cannot be said to be asserted in a class
    proceeding.

[21]

Indeed,
    the mention of the s. 138.3 cause of action in the respondents statement of
    claim appears to reflect this view, namely that leave is required before this
    cause of action can be asserted in the respondents class proceeding.

[22]

Paragraph
    117 of the statement of claim reads as follows:

PART XXIII.1 OF THE SECURITIES ACT

117.   The Plaintiff intends to deliver a notice of motion
    seeking, among other things, an Order permitting the Plaintiff to assert the
    statutory causes of action particularized in Part XXIII.1 of the Securities
    Act, and if granted, to amend this Statement of Claim to plead these causes of
    action.

[23]

The
    statutory context of the suspension provision in s. 28(1) of the CPA provides
    additional support for this interpretation.  The balance of the subsection
    lists the various circumstances that cause the suspended limitation period to
    resume running.  They do not include any reference to the leave motion required
    to add the s. 138.3 cause of action to the respondents class proceeding.  If
    mention of the intention to seek leave were enough to trigger the suspension of
    the applicable limitation period, surely the failure to proceed with the leave
    motion or the denial of leave would be included as circumstances causing its
    resumption.  Assume, for instance, that having pleaded his intention to seek
    leave, the respondent decides not to do so.  The consequence of his argument
    would mean that since the statutory cause of action is mentioned in his
    pleading, the limitation period applicable to it is suspended and remains so
    even though the class proceeding could never be the vehicle to vindicate the
    class members rights under Part XXIII.1.  That cannot have been the
    legislatures intention.

[24]

It
    is also clear that the interpretation I propose is consistent with the purpose of s. 28(1) of the CPA.  In Coulson v. Citigroup Global Markets Canada Inc., 2010 ONSC 1596, at para. 49, Perell J. described this purpose to be to protect class members from the operation of limitation periods without the need to themselves pursue individual actions in order to avoid being out of time until it has been determined whether they can get access to justice through the class proceeding.  That purpose was approved in this court in Coulson v. Citigroup Global Markets Canada Inc., 2012 ONCA 108.  In the context of this case, the respondent’s class proceeding gives class members no possibility of access to justice for their s. 138.3 causes of action because no leave to assert it has been granted.  The purpose of s. 28(1) of the CPA does not therefore require that the limitation period applicable to these causes of action be suspended pending the outcome of this class proceeding, since that action cannot give class members access to justice for their claims.

[25]

Indeed,
    the respondents proposal would reflect a different purpose that cannot have
    been intended by the legislature.  It would suspend the applicable limitation
    period for the s. 138.3 cause of action on the mere mention of that cause of
    action.  This is a benefit that would not come to the respondent if he were
    suing in an individual capacity and did the same thing.  It cannot have been
    the purpose of s. 28(1) of the
CPA
to put the class plaintiff in a
    better position than he would have been had he commenced an individual action.

[26]

The
    purpose of s. 138.14 of the
OSA
is also served by the interpretation of
    s. 28(1) of the
CPA
that I have described.  Section 138.14 was clearly
    designed to ensure that secondary market claims be proceeded with dispatch.
    That requires the necessary leave motion to be brought expeditiously. To
    suspend that limitation period with no guarantee that the s. 138.3 cause of
    action, including the prerequisite leave motion, will be proceeded with
    expeditiously is inconsistent with that purpose.

[27]

Finally,
    the interpretation I have given for s. 28(1) of the
CPA
does not make
    it inapplicable to a s. 138.3 cause of action under Part XXIII.1 of the
OSA
.
    It simply requires that leave be granted before that happens.  The fact that by
    comparison no leave is required for s. 28(1) to apply to Part XXIII causes of
    action is simply a reflection of the legislative policy to require leave for
    secondary market causes of action but not for their primary market
    counterparts.

[28]

In
    summary, I conclude for a s. 138.3 cause of action to be asserted in a class
    proceeding, so as to trigger the suspension provision in s. 28(1) of the
CPA
,
    leave must be granted.  Since the respondent has not obtained leave, s. 28(1)
    has not been activated.

[29]

I
    would therefore allow the appeal and dismiss the respondents motion for an
    order declaring that the limitation period in s. 138.14 of the
OSA
is
    suspended.

[30]

As
    we indicated during argument, the parties may make written submissions of no
    more than eight pages addressing costs here and below.  These are to be filed
    within 30 days of the release of these reasons.

Released: February 16, 2012 STG

S.T.
    Goudge J.A.

I
    agree Robert Armstrong J.A.

I
    agree S.E. Lang J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Szpakowsky v. Kramar, 2012
    ONCA 77

DATE: 20120206

DOCKET: C53827

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Lidia Yvonne Szpakowsky

Appellant (Plaintiff)

and

Robert Michael Kramar, Lee Edward Fingold, Evlar
    Investments Ltd., Jorum Gold, Grant Rayner Lawrence Ben Eliezer, George B.
    Callahan, Jerry Herzkopf

Respondents (Defendants)

Jeffrey Langevin, for the appellant

H.J. Doan, for the respondent

Heard: January 31, 2012

On appeal from the order of Justice Harrison.S. Arrell of the
    Superior Court of Justice, dated April 29, 2011.

ENDORSEMENT

Overview

[1]

Mr. Gold seeks an order requiring the appellant to post security for
    costs pending the disposition of her appeal from the order of Arrell J. dated
    April 29, 2011, dismissing her action as against him and the defendant Fingold,
    for delay.

[2]

How a motion for security for costs, in this battle infused with ill
    will in all corners, came to be dealt with by a full panel of the Court is a
    somewhat tortuous story.  Suffice it to say, that a motion for security for
    costs was granted by Juriansz J.A. on September 6, 2011, when no one attended
    on behalf of the appellant.  Why that was so, is hotly contested, but a panel
    of this Court set aside that order on November 22 on the basis that it had been
    granted on the misunderstanding that the motion was unopposed.  The panel said:

This misunderstanding arose because Mr. Langevin did not appear
    on the motion nor did anyone send any correspondence to the court.  He advises
    this was because he expect Mr. Doan to obtain an adjournment for him.  The
    approach of both counsel led to the need for this attendance today.

[3]

The order of Juriansz J.A. was set aside on terms that Ms. Szpakowsky
    pay costs thrown away before Juriansz J.A. and costs before the panel in the
    amount of $3,000, that materials be exchanged before certain dates, and that a
    companion motion to quash brought by Mr. Gold be argued with the appeal
    itself.  When the matter came on before this panel on January 31, 2012, it was
    not clear whether we were to deal with the motion for security for costs, the
    motion to quash or the appeal, or all of the foregoing.  As it turned out, the
    parties thought they were here to argue the motion for security for costs and
    expected that argument to take place before a single judge.  Because the matter
    was already before us, and because of the history of this proceeding as
    outlined above and below, we decided to deal with the motion for security for
    costs.

[4]

A brief outline of the entire history of these proceedings may be
    helpful at this point.

[5]

In the late 1980s, Ms. Szpakowsky held a number of investment
    properties in and around the City of Toronto.  The defendants  described by
    Arrell J. as a compilation of disbarred lawyers, lawyers still practicing and
    one estranged lover  were her financial and legal advisors in various
    capacities.  Mr. Gold, it should be said, is one of those disbarred lawyers
    (Mr. Fingold is not), although it does not appear from the record that his
    disbarment was in any way related to his dealings with Ms. Szpakowsky.  In
    summary, Ms. Szpakowsky alleges that because of the diverse misdeeds of the
    defendants, she lost her investments.

[6]

In August, 1988 she commenced an action claiming damages for these
    losses.  Mr. Gold was not a defendant in that action, although Ms. Szpakowsky
    acknowledges that she was aware of her allegations against him by at least that
    time.  That action was dismissed for delay in 1992.

[7]

In October, 1993, Ms. Szpakowsky commenced a second action raising
    essentially the same allegations and this time adding her first lawyer, Mr.
    Rayner, as a defendant, but again asserting no claim against Mr. Gold.  The
    second action was dismissed for delay in May, 1998.

[8]

Almost six years later, in March 2004, Ms. Szpakowsky issued her third
    statement of claim, again raising essentially the same allegations, but this
    time  at least 16 years after the events complained of  adding Mr. Gold as a
    defendant.  Even at that, although the proceedings moved along against the
    other defendants, Mr. Gold was not served with the new statement of claim for
    another 3 ½ years, in November 2007.  The explanation advanced for the delay in
    service is that Mr. Gold could not be found and was, in fact, incarcerated, for
    part of that time.  However, as Arrell J. pointed out, the record indicates
    that Mr. Gold has lived at the same address since 1994.

[9]

Earlier, in July, 2006, Milanetti J. had ordered that the claim be
    amended, issued and served by September 8, 2006, and that the trial record be
    passed by April 2007.  None of this was done, and Mr. Gold was not served in
    accordance with the order.

[10]

The
    allegations against Mr. Gold were based in negligence, fraud and breach of
    fiduciary duty.  He retained counsel and quickly moved to strike the claim as
    against him.  On January 4, 2008, Ms. Szpakowsky agreed to amend her claim
    forthwith and to delete all allegations against Mr. Gold except for breach of
    fiduciary duty.  She has never done so.

[11]

In late
    2010, Mr. Gold and Mr. Fingold moved for summary judgment to strike the claim
    against them.  Arrell J. granted that order.  He did so not only because of Ms.
    Szpakowskys failure to comply with certain court orders and the delay and the
    normal difficulties associated with such delay (the case was then 23 years
    old), but because he found that Mr. Gold has suffered significant and real
    prejudice because he had destroyed his files after 15 years and well before
    being advised of the lawsuit and because three potentially important witnesses
    had died in the interim.

Discussion

[12]

Mr. Gold
    seeks an order for security for costs in the total amount of $43,516.62,
    representing $25,000 in relation to the pending appeal together with an amount
    to secure the sum of $18,516.62 awarded by Arrell J. as costs of the motion to
    dismiss for delay.  He relies essentially on the provisions of rules 61.06 and
    56.01 that permit the Court to order security for costs where there is good
    reason to believe the appeal is frivolous and vexatious and the appellant has
    insufficient assets in Ontario to pay the costs of the appeal, and where there
    are outstanding orders of costs in favour of the moving party that have not
    been paid by the appellant.  He also requests an order lifting the stay pending
    appeal regarding the costs of the proceedings before Arrell J., if necessary,
    and directing that those costs be paid forthwith.

[13]

We would
    not grant the latter request, but we order that the appellant post security for
    costs of the appeal in the amount of $15,000.  We do so for the following
    reasons.

[14]

It is not
    necessary for these purposes that we be satisfied the appeal is in fact without
    merit and frivolous, vexatious or otherwise an abuse of the process.  It is
    sufficient if it appears to us that there is good reason to believe it has
    those characteristics.  As this Court noted in
Schmidt v. Toronto-Dominion
    Bank
(1995), 24 O.R. (3d) 1, at p. 5:

The words good reason to believe qualify the words frivolous
    and vexatious and indicate a finding short of an actual determination that the
    appeal is frivolous and vexatious.  A judge hearing a motion for security for
    costs may reach the tentative conclusion that an appeal appears to be so devoid
    of merit as to give good reason to believe that the appeal is frivolous and
    vexatious without being satisfied that the appeal is actually devoid of merit.

[15]

In our
    view, given the history and circumstances outlined above, Ms. Szpakowskys appeal
    is caught by these criteria.

[16]

As for the
    second part of the rule 61.06(1)(a)  good reason to believe that the appellant
    has insufficient assets in Ontario to pay for costs of an appeal  Ms. Szpakowsky
    asserts that she is an impecunious appellant and, therefore, there is no issue
    with respect to that aspect of the test.

[17]

We are
    aware of the jurisprudence that cautions courts  on access to justice grounds
     against depriving an impecunious litigant of his or her right to have a
    meritorious claim determined on the merits.  But, as noted above, we have grave
    reservations about the merits of the appeal, which appears to us to have little
    prospect of success.  Impecunious litigants are not entitled to proceed in such
    circumstances with impunity  causing their opponents to incur significant
    costs themselves  and without having to face the normal consequences of costs
    in they are unsuccessful.

[18]

In addition
    to the foregoing, Ms. Szpakowsky has a history of failing to comply with costs
    orders and with other court orders in the proceedings.  While we would not
    grant security for costs based on these factors alone, they serve to reinforce
    our conclusions respecting the apparent frivolous and vexatious nature of the
    appeal.

[19]

In the
    end, it is what is in the interests of justice that governs.  What is required
    is an appropriate balance between Mr. Golds entitlement, in the circumstances,
    to some protection in terms of costs and a disposition that will not have the
    effect of precluding Ms. Szpakowsky from proceeding for all practical
    purposes.  For that reason, we are not prepared to accept Mr. Golds request
    that we make an order for security for costs in the amount of more than
    $43,000.   We think that an order requiring the appellant to post the total sum
    of $15,000 as security for costs of the appeal and the motion before Arrell J.
    strikes the appropriate balance in all the circumstances.

Disposition

[20]

We therefore order that Ms.
    Szpakowsky pay the sum of $15,000 into court to the credit of this action as
    security for the costs of the appeal and the proceedings before Arrell J.  The
    appeal is stayed pending compliance with this order.

K.M. Weiler J.A.

Robert J. Sharpe J.A.

R.A. Blair J.A.