COURT OF APPEAL FOR ONTARIO

CITATION: Matheson v.
    Lewis, 2014 ONCA 542

DATE: 20140711

DOCKET: C57170 & C58490

Juriansz, Tulloch and Strathy JJ.A.

BETWEEN

Arthur
    Matheson, Diane Matheson, Derek Matheson, Travis

Matheson, Justin Matheson
    and John Matheson

Plaintiffs (Respondents)

and

Gary
    Wayne Lewis, GMAC Leasco Limited,

Lanark Mutual Insurance
    Company

Defendants (Appellants)

Stephen S. Appotive and Meghan E. W. OHalloran, for Lanark
    Mutual Insurance Company

Paul Muirhead for Gary Wayne Lewis and GMAC Leasco
    Limited

Robert E. Houston, Q.C., for the respondents

Heard: April 29, 2014

On appeal from the order of Justice Kenneth E. Pedlar of
    the Superior Court of Justice, dated April 24, 2013.

Juriansz J.A.:

[1]

The question on appeal is whether an unmodified all-terrain vehicle
    (ATV) owned by a farmer and used in farm operations was a self-propelled
    implement of husbandry and therefore not subject to the provinces compulsory
    motor vehicle liability insurance regime.

[2]

The question arises in the context of a motor vehicle accident. A
    farmer, the respondent Mr. Arthur Matheson, was injured while driving an
    uninsured ATV on a public road when he was struck from behind by a truck. The farmer
    and his family members brought an action against the driver of the truck, the
    owner of the truck, and the insurer of Mr. Mathesons own automobiles.

[3]

The plaintiffs, respondents on appeal, brought a motion before trial to
    determine whether their action was statute barred by s. 267.6(1) of the
Insurance
    Act,
R.S.O. 1990, c. I.8. Section 267.6(1) provides that a person is not
    entitled to recover damages for bodily injury or death arising from the use or
    operation of an automobile if, at the time of the incident, the person was
    operating an uninsured motor vehicle on a highway contrary to section 2(1) of
    the
Compulsory Automobile Insurance Act
, R.S.O. 1990, c. C.25.

[4]

The plaintiffs also sought a declaration that their claims against Mr. Mathesons
    insurer, the appellant Lanark Mutual Insurance Company (Lanark Mutual), were
    not foreclosed by operation s. 30(1)(a) of the
Statutory Accident Benefits
    Schedule
, O. Reg. 403/96. Section 30(1)(a) provides that an insurer is not
    required to pay various benefits in respect of an injured driver who knew or
    ought reasonably to have known that he or she was operating an automobile
    without motor vehicle liability insurance.

[5]

The motion judge found that the ATV was a self-propelled implement of
    husbandry and was therefore excluded from Ontarios compulsory insurance
    regime. Consequently, neither s. 267.6(1) of the
Insurance Act
nor s.
    30(1)(a) of the
Statutory Accident Benefits Schedule
applied to bar
    the respondents claims. I would allow the appeal based on my conclusion that
    the ATV was not a self-propelled implement of husbandry but an off-road vehicle
    that had to be insured when operated by a farmer on a public road.

Facts

[6]

The respondent Mr. Matheson is a full-time farmer. His farm of about 900
    acres includes three parts that front onto a public roadway. He raises beef
    cattle and sheep. During the day, he kept the sheep in a gated field on the
    most westerly of the three parts of the farm. To check on the sheep, he could
    walk or drive his ATV to the gated field. He could walk there without leaving
    his farm property but it was faster for him to travel on the public road on
    which the farm fronted.

[7]

On October 11, 2008, Mr. Matheson used his ATV to check on the sheep.
    While he was driving the ATV on the public road, a truck driven by the
    appellant Lewis and owned by the appellant GMAC Leasco Limited struck him from
    behind, leaving him with serious and permanent physical and cognitive
    disabilities. Lewis left the scene of the accident and was subsequently
    convicted of careless driving, obstruction of justice and breach of probation.
    The investigating police officer concluded that Mr. Mathesons ATV was a
    self-propelled implement of husbandry that did not require insurance under a
    motor vehicle liability policy and so did not charge Mr. Matheson with an
    offence under s. 2(3) of the
Compulsory Automobile Insurance Act
.

[8]

The ATV was an unmodified 1986 Honda model TRX 200 SX. Its first owner
    was not a farmer but a small engine mechanic who operated a supply store in the
    Village of Lanark. It came equipped with four wheels that had contact with the
    ground; a steering handlebar; and a straddle seat that was designed for a
    driver only. The first owner also purchased front and rear carriers which were
    standard optional equipment available from Honda. These carriers could be
    simply bolted onto the ATV and did not require any modification to the ATV
    itself. The ATV was also equipped with a trailer hitch.

[9]

Mr. Matheson purchased the ATV from the first owner in 1997. Upon the
    transfer of ownership, Mr. Matheson received a license plate for the ATV. Both
    the ownership and the plate permits for the ATV were issued under Ontarios
    off-road vehicle registration system. Mr. Matheson affixed the license plate to
    the rear of the ATV but removed it while carrying out routine maintenance and
    did not reinstall it before the accident. At the time of purchase, Mr. Matheson
    completed a sales tax exemption declaration stating that the ATV was for farm
    use only. During the next 11 years, Mr. Matheson used the ATV exclusively for
    farming-related purposes. He used it to get to different places, to carry tools
    and equipment and to take supplies where they were needed. Mr. Matheson made no
    changes to the ATV.

[10]

At
    the time of the accident, Mr. Matheson was insured by Lanark Mutual under a
    standard automobile policy and a farm insurance policy. The standard automobile
    insurance policy provided coverage for two automobiles but not for the ATV. The
    farm policy, in addition to providing coverage for buildings, livestock,
    produce and equipment, specifically described and provided coverage for
    self-propelled equipment as described. Only a John Deere combine was
    specified.

[11]

Mr.
    Mathesons insurance agent advised him that the ATV was not a self-propelled
    implement of husbandry and that it would have to be insured under an automobile
    policy if he took it off his property. He advised Mr. Matheson that if he did
    not insure the ATV he could be denied accident benefits if involved in an
    accident while riding it off of farm property. The agent testified that Mr.
    Matheson told him that the ATV hardly ever left the farm and that he would
    take his chances.

The motion judges decision

[12]

The
    specific questions before the motion judge were:

1.

Whether the Matheson action was statute-barred
    by operation of s. 267.6(1) of the
Insurance Act
; and

2.

Whether Mr. Mathesons claims against Lanark
    Mutual Insurance Co. for statutory accident benefits, and specifically income
    replacement benefits, were foreclosed by operation of s. 30(1)(a) of the
Statutory
    Accident Benefits Schedule
.

[13]

The
    motion judge proceeded on the basis that the answers to these questions
    depended on whether Mr. Mathesons ATV was, on the date of the accident, a
    self-propelled implement of husbandry. That is because the
Compulsory
    Automobile Insurance Act
, while prohibiting the operation of a motor
    vehicle on a highway unless it is insured under a contract of automobile
    insurance, gives motor vehicle the same meaning it has under s. 1 of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8. Section 1 of the
Highway Traffic Act
excludes a self-propelled implement of husbandry from its broad definition of
    motor vehicle. The
Highway Traffic Act
defines a self-propelled
    implement of husbandry as a self-propelled vehicle manufactured, designed,
    redesigned, converted or reconstructed for a specific use in farming.

[14]

The
    motion judge evidently concluded that s. 30(1)(a) of the
Statutory Accident
    Benefits Schedule
would also not apply to Mr. Matheson if his ATV was a
    self-propelled implement of husbandry. Section 30(1)(a) refers to the use of an
    uninsured automobile, rather than a motor vehicle. The motion judge noted
    that the
Insurance Act
provides two different definitions of
    automobile in ss. 1 and 224(1). He observed at para. 34 that the extended
    definition of automobile in the
Compulsory Automobile Insurance Act
refers
    to the
Highway Traffic Act
, so the exception for a self-propelled
    implement of husbandry would still need to be addressed.

[15]

The
    motion judge noted that, to determine whether the ATV was a self-propelled
    implement of husbandry, he only had to consider whether Mr. Mathesons ATV was
    designed or manufactured for a specific use in farming and used for farming
    purposes. That was because the ATV was in the same state as when it came off
    the assembly line. It had not been redesigned, converted or reconstructed.

[16]

In
    considering that issue, the motion judge noted this courts statement in
R.
    v. Van Berlo
, 2010 ONCA 242 that a vehicle that is manufactured or
    designed for specific use in farming has an objectively discernable character
    or function that does not depend at all on the particular use intended by the
    user. The motion judge remarked that it was a matter of common sense that the
    person making the objective assessment of the character of the vehicle in question
    should be reasonably well-informed about agricultural life, specifically animal
    husbandry. He said that [t]hat objective discernment may not accurately exist
    in the person of a Bay Street lawyer living in Rosedale, or in a downtown high
    rise condominium, in Toronto: para. 47. Rather he found that such objectively
    accurate discernment did exist in Mr. Matheson and his witnesses who were
    well-versed in the agricultural community of Eastern Ontario.

[17]

The
    motion judge accepted. at para. 12, evidence introduced by Mr. Matheson about
    the evolving nature of the use of ATVs in the practice of farming over the
    years. He took judicial notice of the fact that farming, like other
    industries, businesses, and professions, had undergone significant changes and
    advances in the use of equipment and technology. Based on Mr. Mathesons
    affidavit, which set out his own knowledge and experience of the use of ATVs in
    farming and referred to a document obtained from Honda Canadas website, the
    motion judge accepted that ATVs have become a part of everyday life in
    virtually all farming operations in Ontario and are designed to perform a
    multitude of specific farm tasks. He remarked that the ATV is ideally suited
    for the task of rounding up cattle and sheep. He accepted the evidence that
    farmers are beginning to use ATVs instead of tractors for many tasks.

[18]

Given
    the changing nature of farming, the motion judge expressed his opinion at para.
    49 that the statutory and regulatory definitions have not kept pace. While
    many people purchase and use ATVs as recreational vehicles, ATVs are now an
    integral part of virtually all full-time farming operations and need to be
    recognized as such and responded to appropriately by our laws.

[19]

The
    motion judge found at para. 51 that any reasonably informed person about
    farming in Ontario, particularly beef and sheep husbandry, would readily
    discern the character and function of the vehicle driven by Matheson as being
    an implement manufactured and designed for a specific use in farming and animal
    husbandry. This was not a question of the specific use intended by Mr.
    Matheson only.

[20]

Invoking
    the principle of purposive interpretation, the motion judge reasoned that the
Compulsory
    Automobile Insurance Act
of Ontario is intended to protect innocent
    victims of automobile accidents. He noted that taking away an injured partys
    rights to sue a tortfeasor and to claim no-fault benefits is a harsh civil
    penalty intended to ensure that innocent victims of accidents are protected. He
    commented that if the defendants position were correct, the result would be
    that an injured person not at fault in the accident would be denied significant
    benefits including the right to claim damages from the negligent party. He also
    considered that the primary purpose of compelling Mr. Matheson to insure the
    ATV would be to protect himself from liability if he were negligent and protect
    the innocent victims of his negligence. It would also result in him making a
    modest contribution towards the funds available in support of the entire
    insurance scheme: para. 55.

[21]

After
    weighing these considerations, the motion judge concluded that a fair, large
    and liberal interpretation of the
Compulsory Automobile Insurance Act
and a finding in favor of Mr. Matheson would best achieve the object of the
    Act. The motion judge found that Mr. Matheson and his family members were not
    statute-barred from bringing the action against GMAC Leasco and Lewis, and that
    Mr. Matheson could claim statutory accident benefits from Lanark.

Analysis

[22]

The
    motion judge correctly identified the purpose of the legislation before him but
    then adopted an interpretation that failed to give effect to that purpose. He
    considered matters that were not pertinent to the exercise of statutory
    interpretation: whether the regulatory definitions were out of date, the views
    of the farming community, and the fact that Mr. Matheson was not at fault in
    the accident. Consequently, he lost sight of the goal of determining the intent
    of the legislature.

The statutory and regulatory
    scheme

[23]

The
    motion judge strayed outside the role of the court, which is to interpret and
    apply the laws enacted by the legislature. No technique of statutory
    construction allows a court to decline to apply legislation that in its opinion
    has not kept pace with changes in society.

[24]

In
    this case, a regulation under the
Off Road Vehicles Act
, R.R.O. 1990,
    c. O.4,

explicitly classifies the Honda ATV model TRX 200 as an
    off-road vehicle: R.R.O. 1990, Reg. 863, s. 3, para. 3. Mr. Matheson has not
    argued that his Honda TRX 200 SX does not come within this provision. In any
    case, s. 3 of Reg. 863 also classifies all-terrain vehicles generally as
    off-road vehicles, so long as they have steering handlebars and a seat designed
    to be straddled by the driver: para. 1.1. The
Off-Road Vehicles Act
,
    s. 15,

prohibits a person from driving an off-road vehicle on land not
    occupied by the owner of the vehicle unless it is insured under a motor vehicle
    liability policy in accordance with the
Insurance Act
. As well, a
    regulation under the
Highway Traffic Act
, O. Reg. 316/03, provides
    that an off-road vehicle shall not be operated on a highway unless it is
    insured in accordance with s. 2 of the
Compulsory Automobile Insurance Act
and
    s. 15 of the
Off-Road Vehicles Act
.

[25]

The
Highway Traffic Act
, the
Off-Road Vehicles Act
, the parts of
    the
Insurance Act
dealing with motor vehicle insurance, and the
Compulsory
    Automobile Insurance Act
are all components of one comprehensive scheme.
    As a principle of statutory interpretation, there is a presumption of harmony,
    coherence and consistency between statutes dealing with the same subject
    matter:
R. v. Ulybel Enterprises Ltd.
, 2001 SCC 56, [2001] 2 S.C.R.
    867, at para. 52; Ruth Sullivan,
Statutory Interpretation
, 2nd ed.
    (Toronto: Irwin, 2007), at pp. 149-151. Within the legislative scheme governing
    automobile insurance, Mr. Mathesons ATV cannot have been both an off-road
    vehicle that required insurance when operated on land not occupied by the owner
    and at the same time a self-propelled implement of husbandry that was excluded
    from Ontarios compulsory insurance regime. That the regulatory scheme
    classifies the Honda ATV model TRX 200 and other ATVs with steering handlebars
    and straddle seats as off-road vehicles leads to the immediate conclusion that
    they are not self-propelled implements of husbandry.

[26]

It
    was beyond the competence of the motion judge to conclude that Mr. Mathesons
    ATV was a self-propelled implement of husbandry based on his opinion that the
    regulatory regime has not kept pace with changes in society, that ATVs need to
    be responded to appropriately by our laws, and that they need to be recognized
    as self-propelled implements of husbandry.

[27]

Reg.
    863 could not make clearer the legislative intent that a Honda ATV model TRX
    200 is an off-road vehicle and not a self-propelled implement of husbandry. The
    motion judges failure to give effect to Reg. 863 is a sufficient basis for
    allowing the appeal.

[28]

I
    would add that I see no basis for the motion judges conclusion that the
    regulatory definitions have not kept pace with changes in society. He seems to
    have taken the view that the regulatory scheme was designed so that all
    vehicles used extensively in farming would be exempt from Ontarios compulsory
    insurance regime. That is not so. The legislature has carefully stuck a balance
    between the needs of farmers and the protection of the public. The legislature,
    in the
Off-Road Vehicles Act
, recognizes and specially accommodates
    the use of off-road vehicles by farmers. Section 2(2)(b)(i) of the Act allows a
    farmer who is a licensed driver to operate an off-road vehicle on a highway if
    the vehicle is designed to travel on more than two wheels and the vehicle bears
    a slow moving vehicle sign. An ordinary member of the public is not allowed to
    operate an off-road vehicle on a highway, except when crossing it. However, to
    protect the public, the Act requires that off-road vehicles be insured when
    they are operated off the property of the owner. A farmer driving an off-road vehicle
    on a highway as permitted by s. 2(2)(b)(i) must still comply with the
    requirement in s. 15 that the vehicle be insured.

[29]

The
    legislature has gone further with self-propelled implements of husbandry that
    are manufactured, designed, redesigned, converted or reconstructed for specific
    use in farming by exempting them from its compulsory insurance regime.

[30]

I
    see no basis for concluding that the legislatures decision to accord different
    treatment to off-road vehicles used in farming and self-propelled implements of
    husbandry is out of date.

[31]

The
    same may be said of the classification of the Honda ATV model TRX 200 and other
    ATVs with steering handlebars and straddle seats as off-road vehicles. The
    regulations under the
Off-Road Vehicles Act
have been amended from
    time to time, as recently as this year. Despite amending the regulatory
    framework, the legislature has left intact the classification of the Honda ATV
    model TRX 200 as an off-road vehicle. In 2003, the legislature amended s. 3 of
    Reg. 863 by adding paragraphs 1.1 and 1.2: O. Reg. 317/03. Rather than
    referring to specific model numbers, these paragraphs bring whole categories of
    ATVs within the definition of off-road vehicles. This must be seen as a
    regulatory choice. It seems to me the legislature is well aware of the use of
    ATVs by farmers and has provided for that use by allowing farmers to operate
    ATVs on a highway
with insurance
. The issue is not
    whether farmers can operate ATVs used in agriculture on highways, but whether
    they can do so without insurance.

The ordinary meaning of the
    definition

[32]

The
    motion judge did not give effect to the grammatical and ordinary sense of the
    definition of a self-propelled implement of husbandry.

[33]

The
    question before the motion judge was whether the ATV had been manufactured or
    designed for a specific use in farming. The evidence in the record would
    establish, at the highest, that the Honda ATV model TRX 200 SX was designed and
    manufactured to be a multipurpose vehicle and that it is now widely used in
    farming. It was open to the motion judge to conclude, as he did, that the ATV
    is ideally suited for and widely used to carry out many farming tasks. This,
    however, does not establish that it was manufactured or designed for a specific
    use in farming. The evidence establishes that it was manufactured and designed
    to serve both recreation and utility purposes. Though the ATV may be ideally
    suited for use by farmers, it may be equally ideally suited for use by hunters
    and trappers, and for recreation.

[34]

Justice
    Goudge stated in
R. v. Van Berlo
, at para. 17, that a vehicle that is
    manufactured or designed for a specific use in farming has an objectively
    discernable character or function that does not depend at all on the particular
    use intended by the end user. Although he added that he did not agree that
    the [definition of a self-propelled implement of husbandry] requires that the
    vehicle be capable only of the specific use in farming for which it was
    manufactured or converted, this comment simply recognizes that though
    self-propelled implements of husbandry must be manufactured or designed for a
    specific use in farming, they may still be capable of being put to some other
    use. In this case the first step was not satisfied Mr. Mathesons ATV lacked
    the objectively discernable character or function necessary to establish it was
    manufactured or designed for a specific purpose in farming.

[35]

Even
    if the farmers views were relevant in determining legislative intent, they
    only spoke to the widespread use of ATVs by farmers and not to their design or
    manufacture. The motion judge erred in giving controlling weight to this
    evidence. Mr. Mathesons ATV may have been a vehicle used in farming but it was
    not a vehicle manufactured or designed for a specific use in farming. Not all vehicles
    used in farming are excluded from Ontarios compulsory insurance regime.

Purposive interpretation

[36]

The
    starting point for a purposive analysis of Ontarios compulsory insurance
    regime is s. 2 (1) of the
Compulsory Automobile Insurance Act
which
    prohibits an owner of a motor vehicle from operating it on a highway unless
    the motor vehicle is insured under a contract of automobile insurance. As the
    motion judge noted at para. 55, Ontarios compulsory automobile insurance
    regime is clearly intended to protect innocent victims of automobile accidents
    from having no means of seeking damages from persons who might have caused
    those damages without having the protection of automobile insurance.

[37]

To
    foster its goal of universal insurance coverage, the legislature has given all
    owners of vehicles strong incentives to purchase the required insurance.
    Section 2(3) of the
Compulsory Automobile Insurance Act
makes the
    failure to purchase insurance an offence. In addition, the legislature has
    provided that those who fail to purchase insurance cannot recover loss or
    damage arising from the use or operation of an automobile or claim significant
    benefits under the
Statutory Accident Benefits Schedule
.

[38]

The
    motion judge recognized that the purpose of removing of these rights, which he
    characterized as a very harsh civil [penalty], was to give all vehicle owners
    strong reason to purchase the required insurance. On my reading, he did not
    apply this penalty to Mr. Matheson in large part because Mr. Matheson was not
    at fault in the accident. He reasoned that the broader legislative goal would
    be achieved by allowing Mr. Matheson, as the innocent victim of a motor vehicle
    accident, to seek damages from the insured person who caused his damages.

[39]

The
    motion judge erred by not giving effect to the means the legislature chose to
    further its broad goal of protecting innocent victims of motor vehicle
    accidents. The legislative means of ensuring universal insurance would be
    rendered nugatory if they were made applicable only to those who cause
    accidents. Such persons would not be successful in recovering damages in an
    action in any event. The clear legislative intent is that the prospect of not
    being able to recover damages or statutory accident benefits gives vehicle owners
    good reason to purchase insurance before any accident has taken place. The
    motion judge failed to give effect to the legislative purpose of the specific
    provisions he had to interpret and apply. The legal maxim dura lex sed lex
[1]
applies. The provisions, even if considered very harsh, must be enforced.

[40]

The
    motion judge erred by finding Mr. Mathesons ATV was a self-propelled implement
    of husbandry, and by failing to find that his action was statute-barred by
    operation of s. 267.6(1) of the
Insurance Act
and his claim for statutory
    accident benefits was foreclosed by operation of s. 30(1)(a) of the
Statutory
    Accident Benefits Schedule
.

The meaning of automobile in the SABS

[41]

An
    additional comment is necessary regarding the motion judges reasoning about Mr.
    Mathesons claim for statutory benefits. Section 30(1)(a) disqualifies a driver
    of an automobile from claiming income replacement benefits if, at the time of
    the accident, he or she was knowingly operating an automobile without motor
    vehicle liability insurance. This provision would apply to Mr. Matheson if the
    ATV he was driving at the time of the accident was an automobile within the
    meaning of s. 30(1)(a). The
Schedule
does not contain a definition of
    automobile.

[42]

As
    the motion judge noted, the
Schedule
is a regulation under the
Insurance
    Act
, and the Act provides two different definitions of an automobile.

[43]

Section
    224 of the
Insurance Act
defines automobile for the purposes of Part
    VI, entitled Automobile Insurance. It defines an automobile to include a
    motor vehicle required under any Act to be insured under a motor vehicle
    liability policy and any vehicle prescribed by regulation to be an automobile.
    The definition does not include a self-propelled implement of husbandry.

[44]

Section
    1 of the Act defines an automobile to include a trolley bus and a
    self-propelled vehicle, and the trailers, accessories and equipment of
    automobiles, but not railway rolling stock that runs on rails, watercraft or
    aircraft.

[45]

These
    inclusive definitions are broad enough to encompass Mr. Mathesons ATV. The
    motion judge reasoned the exception for a self-propelled implement of
    husbandry in the general definition of motor vehicle in the
Highway
    Traffic Act
would still have to be considered because the extended
    definition of "automobile" under the
Compulsory Automobile
    Insurance Act
refers to the
Highway Traffic Act
. It appears he
    misspoke. The
Compulsory Automobile Insurance Act
contains no
    definition of automobile.

[46]

I
    need not attempt to deduce what provision the motion judge had in mind. I have
    concluded Mr. Mathesons ATV was not a self-propelled implement of husbandry.
    If there were an exception such as the motion judge had in mind, it would not
    apply.

Conclusion

[47]

I
    would allow the appeal, set aside the motion judges order and replace it with
    an order that Mr. Mathesons action is statute-barred by operation of s.
    267.6(1) of the
Insurance Act
and that Mr. Mathesons claims against
    Lanark Mutual for statutory accident benefits are foreclosed by operation of s.
    30(1)(a) of the
Statutory Accident Benefits Schedule
. I would fix the
    costs of the appeal in the amount of $20,000 for Lanark and $12,500 for GMAC
    Leasco and Lewis, and the costs of the motion in the amount of $15,000 for
    Lanark and $7,500 for GMAC Leasco and Lewis, all amounts inclusive of
    disbursements and applicable taxes.

Released: July 11, 2014

RGJ
    R.G. Juriansz J.A.

I
    agree M. Tulloch J.A.

I agree G.R. Strathy J.A.

[1]
The law is harsh but it is the law.


COURT OF APPEAL FOR ONTARIO

CITATION: May v. Smith, 2014 ONCA 524

DATE: 20140704

DOCKET: C52828

Laskin, Lauwers and Hourigan JJ.A.

BETWEEN

Ella May by her litigation guardian Shirley Fourney

Plaintiff (Respondent)

and

Robert John Smith and Mary J. Smith

Defendants (Appellants)

Alden Christian, for the appellants

Gary Boyd, for the respondent

Heard and released orally: June 27, 2014

On appeal from the order of Justice Terrance P. OConnor
    of the Superior Court of Justice, dated September 21, 2010.

ENDORSEMENT

[1]

The defendants appeal of the judgment of OConnor J.  The plaintiff
    cross-appeals on the issues of interest and costs.

[2]

The defendants make four submissions:

(1)

The trial judge erred in failing to consider the 1983 agreement;

(2)

The trial judge failed to consider the cancellation clause in the 1994
    note;

(3)

The trial judge failed to consider the appropriate interest rate; and

(4)

The trial judges costs award did not reflect the principle of
    proportionality

[3]

We did not call on the respondent on the appellants first two
    submissions.  On the first submission, the 1994 note is clear on its face and
    reflected the evidence given by Robert James Smith, which the trial judge
    accepted.  He did not err in doing so.

[4]

On the second issue, the trial judge was correct not to give effect to
    the cancellation clause in the note, as the appellants had stopped paying on
    the note many years before Mrs. Smith died.

[5]

On interest, we do not accept the appellants position that no interest
    is payable, or the respondents position that the trial judge should not have
    reduced the rates applicable under the note.  The trial judge attempted to
    reach a fair and reasonable resolution of the amount of interest owing.  We decline
    to interfere with the exercise of his discretion.

[6]

Similarly on costs we decline to interfere with the amount awarded.
    Strictly speaking, the award does not take account of the respondents rule 49
    offer.  But it is nonetheless a generous award, and in the circumstances,
    reflects the principle of proportionality.

[7]

Accordingly, both the appeal and the cross-appeal are dismissed with
    costs to the respondent in the agreed on amount of $15,000 inclusive of
    disbursements and applicable taxes.

John Laskin J.A.

P. Lauwers

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Monette v. Tebo, 2014 ONCA 516

DATE: 20140703

DOCKET: C56791

Feldman, Watt and van Rensburg JJ.A.

BETWEEN

Robert Monette and Ginger Monette

Respondents (Plaintiffs)

and

Martin Tebo and Donna Tebo
and Bruce Sellers

Appellants (Defendants)

AND BETWEEN

Martin Tebo and Donna Tebo

Appellants (Plaintiffs by counterclaim)

and

Robert Monette and Ginger Monette, John Peter
    Roxon and Julie Elaine Margaret Roxon

Respondents (Defendants to the counterclaim)

M. Philip Tunley, for the appellants

Kurt Robert Pearson, for the respondents

Heard: June 19, 2014

On appeal from the judgment of Justice Brian Abrams of
    the Superior Court of Justice, dated February 15, 2013.

ENDORSEMENT

[1]

The appellants appeal from a judgment dismissing their counterclaim for
    damages and an injunction. Notwithstanding the fact that the trial judge
    indicated that he would have awarded nothing for damages had he found liability,
    (which would engage s. 19 (1.1)(d) of the
Courts of Justice Act
R.S.O.
    1990, C.43) the claim for an injunction and the appeal that includes that claim
    gives this court jurisdiction to hear the appeal (s. 6(1)(b)).

[2]

The parties were neighbours on large rural properties near Napanee,
    Ontario. The Tebo property is 11 acres while the Monette property (which they
    have now sold) is 30 acres. In the counterclaim, the Tebos claimed that the
    result of the Monettes construction of a six-hole golf course on their property
    was that surface water ran from the Monette property onto the Tebo property
    causing excessive flooding and pooling of water on their property near the
    property line. They also included a claim for harassment relating to incidents
    including golf balls on their property and burial by the Monettes of their dog
    near the property line.

[3]

The appellants submit that the trial judge erred by failing to give
    effect to what counsel characterized in oral argument as the uncontested fact
    that there were 27 events of flooding on the Tebo land after the development of
    the golf course by the Monettes. They further submit that the evidence showed
    that water flowed from the Monette land to the Tebo land in two particular
    places following construction of the golf course and that the evidence was that
    the new construction created a barrier that prevented the pooled water from
    dissipating for weeks at a time.

[4]

We do not agree that the trial judge erred as alleged. The trial judge
    had to determine whether the flooding conditions on the Tebo property after
    construction of the Monette golf course were worse than before. He concluded,
    based on all the evidence, that they were not. At paragraph 213 of his amended
    reasons for judgment he found:

Accordingly, the Court finds that there has not been a material
    change with respect to the development of the golf course exacerbating flooding
    on the Tebo property as alleged.

[5]

At paragraph 214 he added:

The Court further finds that, if anything, the flooding on the
    Tebo property has been mitigated by the additional fill imported to the Monette
    property, which as Mr. Fraser [Fraser Armstrong] opined, acts as a sponge. Put
    simply, more soil equals more absorption; less soil equals less absorption.

[6]

Finally, he concluded at para. 218:

With respect to the issue of water flow, the more important
    point is this: Even if at certain times, and in certain conditions, water can
    be seen flowing from the Monette property to the Tebo property now, the level
    of flooding has never been as widely disbursed or as deep as it was during
    [Hurricane] Frances (Hurricane Frances). Put simply, on all of the evidence,
    the bowl has never again been as full as it was during Frances. Where is the
    water going? The Court is drawn to conclude, as Mr. Fraser [Armstrong] did,
    that the water is being absorbed by the additional soil imported to the Monette
    property.

[7]

This court was not taken to any expert evidence that contradicted the
    trial judges finding. Furthermore, much of the evidence given by the
    independent neighbours and former property owners substantiated the conclusion
    reached by the trial judge on the issue of comparing conditions before and
    after the golf course construction.

[8]

The appellants also argue that the trial judge should have found that
    the failure of the respondent to fully comply with the Quinte Conservation
    Authoritys requirements for construction of the golf course constituted
    evidence that the golf course was not constructed in a reasonable manner and
    was evidence of nuisance. The problem with this submission is that it does not
    assist the appellants when the trial judges finding was that there was no causal
    connection between the golf course and the alleged flooding. He was not
    satisfied that any accumulation of water on the Tebo land was exacerbated by
    the golf course or that it constituted a nuisance.

[9]

Finally, the appellants submit that the trial judge made findings of
    credibility against Mr. Tebo on a basis that constituted a misapprehension of
    certain evidence. In particular, they submit that he misapprehended Mr. and
    Mrs. Tebos evidence regarding the extent of the flooding following Hurricane
    Frances, and thought they were describing flooding on the same date when in
    fact they were talking about two different dates. However, they do not go as
    far as alleging that the trial judge was not entitled to reject Mr. Tebos
    evidence on other bases that he described. In our view, even if the trial judge
    did misapprehend the reason for the discrepancy in the descriptions of the
    flooding after Hurricane Frances, he was entitled to prefer the evidence of
    Mrs. Tebo and discount Mr. Tebos credibility on the other bases that he
    articulated.

[10]

The
    trial judge heard evidence and argument over nine days. Although his reasons
    for judgment are largely descriptive and somewhat conclusory, they explain the
    conclusions and the evidence he relied on to reach those conclusions. In our
    view, he made no reversible error and was entitled, based on the whole record,
    to reach the findings that he did.

[11]

The
    appeal is therefore dismissed, with costs in the agreed amount of $25,000,
    inclusive of disbursements and HST.

K. Feldman J.A.

David Watt J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Muskoka Lakes (Township) v. Ontario (Natural
Resources), 2014 ONCA 557

DATE: 20140721

DOCKET: C58655

Hoy A.C.J.O., Gillese and Lauwers JJ.A.

BETWEEN

The Corporation of the
Township of Muskoka Lakes

Appellant

and

Her Majesty the Queen
in Right of Ontario as Represented by the Minister of Natural Resources and
Swift River Energy Limited

Respondents

Harold G. Elston and Aynsley L. Anderson, for the appellant

Ronald Carr and Sandra Nishikawa, for the respondent Her
Majesty the Queen in Right of Ontario

Neil Finkelstein, Eric S. Block and Shane C. DSouza,
for the respondent Swift River Energy Limited

Heard:  July 14, 2014

On appeal from the order of Justices Nordheimer, Aston and
Perell of the Divisional Court, dated August 19, 2013, with reasons reported at
2013 ONSC 5380.

ENDORSEMENT

[1]

The Township appeals the order of the Divisional
Court dismissing its application for judicial review of the decision of the
Minister of Natural Resources (the Minister) to prohibit access to certain
Crown lands adjacent to Bala Falls (the Site) under s. 28(1) of the
Public
Lands Act
, R.S.O. 1990, c. P. 43 (the Act), and for
orders (the Ancillary Orders): (1) declaring that a portage protected by s.
65(4) of the Act passes over the Site; (2) prohibiting the Minister or any
other person from interfering with that portage; (3) setting aside the water
frontage at the Site for recreational and access purposes pursuant to s. 3 of
the Act; (4) prohibiting any interference with that frontage; and (5) enjoining
the Minister from issuing a lease and agreement for the construction and
occupation of a waterpower generation facility on the Site.

[2]

Section 28(1) of the Act permits the Minister to
prohibit the possession, occupation or use of public lands. The Divisional
Court found that the Ministers decision to restrict public access to the Site
was reasonable. It wrote:

The Ministry made that determination because
of expressed concerns about public safety and after commissioning a Public
Safety Measures Plan. These safety concerns have existed at least since 2009
when there was a double drowning in the waters off of these lands.

[A] complete ban on public access to the Crown
lands, in circumstances where two people have already lost their lives, cannot
be shown to be so manifestly unreasonable as to justify interference by this
court.

[3]

It was not satisfied that the Ministers
decision under s. 28 was a guise to ensure that a new waterpower generation
facility could be constructed on the Site.

[4]

The Divisional Court also rejected the
Townships argument that the Minister could not invoke s. 28(1) if s. 3 or s.
65(4) of the Act applies. Section 3 requires the Minister to set aside a
certain percentage of public lands fronting on a body of water for
recreational and access purposes. Section 65(4) provides a right to pass over
a portage [w]here public lands over which a portage has existed or exists have
been heretofore or are hereafter sold or otherwise disposed of under this or
any other Act. The Divisional Court found that s. 28 was not made subject to
any other provision in the Act, and in fact s. 28 may have been designed to
prevail in situations such as this, given that public safety often trumps other
policy goals. In light of its conclusion that the Ministers decision to
restrict public access to the Site was reasonable, the Divisional Court did not
determine whether there is so little remaining public frontage on the body of
water that s. 3 requires the Ministry to set aside the Site for recreational
and access purposes, or whether a portage passed over the Site  both disputed
issues.

[5]

On appeal, the Township renews its arguments
before the Divisional Court that a portage protected by s. 65(4) passes over
the Site, and that there is so little remaining public frontage on the body of
water that s. 3 requires the Minister to set aside the frontage at the Site
for recreational and access purposes. It submits that given these protected
rights under the Act, the decision of the Minister to prohibit those activities
was unreasonable.

[6]

The Township also argues that in obstructing the
alleged portage, the Minister would interfere with navigation rights, protected
at common law and regulated under the
Navigation Protection Act
,
R.S.C. 1985, c. N-22, as amended.

[7]

We see no basis for interfering with the Divisional
Courts decision.

[8]

The Divisional Court identified the appropriate
standard of judicial review and applied it correctly. As the Divisional Court
noted, s. 28 is not made subject to any other provisions of the Act, and ss. 3
and 65(4) are not stated to prevail over s. 28. Given the safety concerns, the
Ministers decision was reasonable, even if a portage protected by s. 65(4)
existed, or s. 3 applied to the Site. The Ministers decision fell within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.

[9]

The common law public right of passage over a
navigable waterway does not include the right to portage over anothers land:
Canoe
Ontario v. Reed
(1989), 69 O.R. (2d) 494 (H.C.J). Section
2(1) of the Act provides that the Minister has charge of the management of the
public lands. Therefore, subject to any aboriginal and treaty rights, the
Minister has the right to make an order under s. 28(1) that has the effect of
prohibiting passage over portages. Further, Transport Canada has provisionally
concluded that navigation would not be substantially impacted by the proposed
waterpower generation facility. It identified a different portage route as the
primary, and Transport Canada recommended, portage through the Bala Falls area.

[10]

In
obiter
, the Divisional
Court expressed doubt as to whether, if there were a portage, s. 65(4) would
apply. In this case, the Minister intends to lease the Site to the proposed operator
of the new waterpower generation facility. The Divisional Court reasoned that
the words sold or otherwise disposed of in s. 65(4) did not include a
lease of Crown lands and any existing portage would therefore not be protected
by s. 65(4). In disposing of this appeal it is not necessary to address this
issue of interpretation. By dismissing this appeal, we do not endorse the Divisional
Courts reasoning on this point.

[11]

In addition to asking this court to set aside
the Ministers decision, the Township asked that this court grant the Ancillary
Orders (with the exception of the order enjoining the grant of a lease and
agreement for the construction and occupation of a waterpower generation facility
on the Site, which it concedes this court cannot issue against the Crown). As noted
above, the Divisional Court determined that the Ministers decision was
reasonable without having to make findings on the existence of the alleged
portage and the sufficiency of the frontage and dismissed the Townships
application for the Ancillary Orders. The Township did not argue that the
Divisional Court erred in setting aside the Ministers decision without
determining those issues; it seeks the Ancillary Orders as part of its appeal
of the Divisional Courts dismissal of its application for an order setting aside
the Ministers decision. In light of our agreement that s. 28 of the Act is not
subject to ss. 3 and 65(4) and that the Ministers decision to restrict public
access to the Site for safety reasons was reasonable, even if a portage
protected by s. 65(4) existed, or s. 3 applied to the Site, we, like the Divisional
Court, find it unnecessary to address these additional issues.

[12]

This appeal is accordingly dismissed. The
respondents, the Crown and Swift River Energy Limited, shall each be entitled
to costs, fixed in the amount of $8,500, inclusive of HST and disbursements.

Alexandra Hoy A.C.J.O."

E.E. Gillese J.A.

P.
Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Peoples Trust Company v. Rose of Sharon (Ontario)
    Retirement Community, 2014 ONCA 533

DATE: 20140707

DOCKET: C58130

Feldman, MacPherson and Cronk JJ.A.

BETWEEN

Peoples Trust Company

Applicant (Respondent)

and

Rose of Sharon (Ontario)
    Retirement Community

Respondent
    (Respondents)

APPLICATION
    UNDER section 243 of the
Bankruptcy and Insolvency Act
,

R.S.C. 1985, c
    B-3, as amended and under Section 101 of the
Courts of

Justice Act
,
    R.S.O. 1990, c. C-43

Justin Baichoo, for the appellant 2383431 Ontario Inc.

Clifton P. Prophet and Haddon Murray, for the respondent
    Peoples Trust Company

Lou Brzezinski, for the respondent Deloitte & Touche
    Inc. in its capacity as court-appointed Receiver of Rose of Sharon (Ontario)
    Retirement Community

Heard: July 4, 2014

On appeal from the judgment of Justice Ruth E. Mesbur of
    the Superior Court of Justice, dated December 13, 2013.

ENDORSEMENT

[1]

The appellant 2383431 Ontario Inc. (238) appeals from the Order of
    Mesbur J. of the Superior Court of Justice dated December 13, 2013.  The sole
    basis of the appeal is 238s claim that the motion judge erred by not granting
    an adjournment on the hearing date to enable 238 to consider its position and
    file material.

[2]

238 was an asignee of a second mortgage on the property.  It had assumed
    this position in September 2013, three months before the settlement hearing
    scheduled for December 13.  Its predecessor in title, IWOK, had participated in
    the receivership proceedings.

[3]

The appellant asserts that it had no notice of the December 13 hearing,
    that it only retained counsel a day before, and that the motion judge erred by
    not granting it an adjournment.

[4]

We do not accept this submission.  The decision to grant or refuse an
    adjournment is a discretionary one and is, therefore, entitled to deference on
    appellate review: see:
R. v. Wood
, 2005 CanLII 13779 (ONCA), at para.
    7.  We can see no basis for interfering with the motion judges decision to
    refuse 238s request for an adjournment.  Indeed, her reasoning on this issue,
    especially at paragraph 2, is entirely sound.

[5]

The appeal is dismissed.  The respondent Peoples Trust Company is
    entitled to its costs of the appeal fixed at $7000, inclusive of disbursements
    and HST.  No costs to the respondent Deloitte & Touche Inc.

K. Feldman J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Peoples Trust Company v. Rose of Sharon (Ontario)
    Retirement Community, 2014 ONCA 534

DATE: 20140707

DOCKET: C58426

Feldman, MacPherson and Cronk JJ.A.

BETWEEN

Peoples Trust Company

Applicant (Respondent)

and

Rose of Sharon (Ontario)
    Retirement Community

Respondent
    (Respondents)

APPLICATION
    UNDER section 243 of the
Bankruptcy and Insolvency Act
,

R.S.C. 1985, c
    B-3, as amended and under Section 101 of the
Courts of

Justice Act
,
    R.S.O. 1990, c. C-43

Justin Baichoo, for the appellant Unimac Group Ltd.

Clifton P. Prophet and Haddon Murray, for the respondent
    Peoples Trust Company

Lou Brzezinski, for the respondent Deloitte & Touche
    in its capacity as court-appointed Receiver of Rose of Sharon (Ontario)
    Retirement Community

Heard: July 4, 2014

On appeal from the order of Justice David M. Brown of the
    Superior Court of Justice, dated February 6, 2014.

ENDORSEMENT

[1]

The appellant, Unimac Group Ltd., appeals from the Order of D.M. Brown
    J. of the Superior Court of Justice dated February 6, 2014, declaring that the
    respondent Peoples Trust Company is entitled to priority over any other
    interest claimed in certain Life Lease units in the Rose of Sharon (Ontario)
    Retirement Community in Toronto, except for any valid and prior construction
    lien claims.

[2]

The appellants principal argument is that the motion judge erred by
    determining the Priority Motion, brought by the respondent, separate and apart
    from the Lien Reference, where the appellant will be a significant participant.

[3]

We do not accept this submission, which ignores two crucial factors.

[4]

First, the bifurcation of the priority of security and construction lien
    issues flows from a previous court order dated December 27, 2012:

7. THIS COURT ORDERS that the issues of liability, timeliness
    and quantum in the Construction Lien Action shall be determined in a Reference
    before a Master.

8. THIS COURT ORDERS that the issue of the priorities of the
    construction lien vis-à-vis any other encumbrance shall be determined by a
    Judge of the Commercial List in these receivership proceedings.

No party appealed this order.

[5]

In a subsequent component of the priority of security proceedings, the
    appellant made submissions about its lien and the construction lien component
    of the proceedings.  In her endorsement, Mesbur J. said:

The construction lien in relation to UNIMAC and its assignee is
    being dealt with in a construction lien action, #CV-11-9399-OOCL.  Once the
    quantum of the lien is determined, the issue of priority will be decided in
    this overall receivership application on a date to be fixed.

The appellant did not appeal Mesbur J.s decision.

[6]

Second, the motion judges Order specifically preserves the construction
    lien issues and recognizes that, at a later time in both proceedings, the two
    streams will merge.  The Order granted the respondents motion on the priority
    issue save and except for any construction lien claims found to be valid and
    prior by a judge presiding over the Superior Court of Justice (Commercial
    List).

[7]

The appellant also submits that the motion judge erred by not giving
    effect to its security and equity interests at the priority hearing.

[8]

We disagree and say simply that we agree with the motion judges
    succinct rejection of these claims at paragraphs 3 and 4 of his endorsement.

[9]

Finally, in oral argument the appellant expressed the concern that it
    might not receive any money in the receivership proceedings because the receiver
    would distribute funds to Peoples Trust Company in accordance with its
    priority.

[10]

This
    concern is misplaced.  The receiver is collecting assets in accordance with the
    relevant court orders.  There can be no distribution until all claims,
    including the appellants, are dealt with by the court.

[11]

The
    appeal is dismissed.  The respondent is entitled to its costs of the appeal
    fixed at $7400, inclusive of disbursements and HST.

K. Feldman J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdi, 2014 ONCA 520

DATE: 20140703

DOCKET: C54404

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shakir Abdi

Appellant

Ian R. Smith and Lynda E. Morgan, for the appellant

Jennifer Woollcombe, for the respondent

Heard and released orally: June 27, 2014

On appeal from the conviction entered on May 26, 2011 and
    the sentence imposed on June 30, 2011 by Justice Alfred J. OMarra of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant submits that the trial judge erred in his acceptance of
    the identification evidence by the four tellers in the four bank robberies and
    in his acceptance of the evidence of Officer Taylor who identified the
    appellant from prior dealings with him.  In particular, the appellant submits
    that the tellers descriptions of the robbers features were general in nature
    and that they had significant discrepancies on the issues of height, age and
    presence of facial hair.  He also submits that the photo line-ups conducted
    were flawed in that the witnesses were allowed to view and compare the photos
    in those line-ups, contrary to the suggestion from the Sophonow Inquiry Report
    that this comparison procedure should be avoided.  The witnesses should only be
    deciding if any of the included photographs represents the perpetrator of the
    offence.

[2]

In our view, the trial judge, in his careful and thorough reasons, was
    alive to the dangers and frailties of eye witness evidence and photo-line-up
    identification.  He quoted at length from the case of
R. v. Hanemaayer
,
    [2008] O.J. No. 308, a decision of Rosenberg J.A. where he discusses and outlines
    the criteria required for photo I.D. evidence to be properly accepted and
    assessed. The trial judge applied the test explicitly to each of the witnesses
    and concluded that he was satisfied of the identification beyond a reasonable
    doubt.

[3]

The trial judge also considered fully in his pre-trial ruling whether
    Officer Taylors evidence met the test for a recognition witness and concluded
    that it did.  When he referred to that evidence in his reasons for judgment, he
    noted that the appellants height as well as the shape of his face, chin, eyes,
    ears and body shape were visible from the robbery photographs that the officer
    saw when he recognized the appellant.  We see no error in the basis for his
    decision to accept that evidence.

[4]

We further note that the trial judge stated early in his reasons, at
    page 4:

The Crown and defense agree, based on the surveillance
    photographs and description of the manner in which each robbery was committed,
    that all four robberies were committed by the same person.  Further, the
    evidence of the youth supports that conclusion.  The question is whether the
    Crown has proven beyond a reasonable doubt that the perpetrator was Shakir Abdi.

The trial judge was entitled to use this concession as
    part of his assessment of the identification evidence.

[5]

The appeal against conviction is therefore dismissed.

[6]

The appellant also seeks leave to appeal his sentence of 7.5 years
    asking that it be reduced to 6 years on the basis that the trial judge failed
    to consider the principle of totality when imposing mandatory consecutive
    sentences for the firearms offences, and that he imposed a sentence that was
    crushing.  He also argues that the sentence failed to take into account
    sufficiently the prospects for rehabilitation.

[7]

In our view, the trial judge did not make the errors alleged.  The
    sentence was within the appropriate range.  The appellants prospects for
    rehabilitation were recognized by the trial judge as limited at the time.
    Hopefully, those prospects are now greater.  We accept the submission of the
    Crown that given his release date is in October of this year, this issue is
    best left to the parole board at this time.

[8]

In the result, leave to appeal sentence is granted but the appeal is
    dismissed.

G.R. Strathy C.J.O.

K. Feldman J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Akindolire, 2014 ONCA 545

DATE: 20140714

DOCKET: C56044

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Claire Akindolire

Appellant

Howard L. Krongold, for the appellant

Christine Tier, for the respondent

Heard and released orally: June 27, 2014

On appeal from the conviction entered on June 12, 2012
    and the sentence imposed on September 21, 2012 by Justice Dianne M. Nicholas of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals her conviction on two counts of assault with a
    belt and two counts of assault causing bodily harm in relation to her son, who
    was ten years old at the time of trial. She also sought leave to appeal her
    sentence of
nine months imprisonment.

[2]

The trial in the Ontario Court of Justice lasted 14 days, spread over
    many months. The trial judge gave lengthy reasons in which she reviewed the
    evidence of all witnesses and made specific findings of fact. She disbelieved
    the evidence of the appellant and some of the other defence witnesses, and
    believed the evidence of the complainant.

[3]

The appellant asserts that the trial judges credibility findings were
    based on several misapprehensions of the evidence and that her findings of fact
    were not supported by the record, and were contradictory or speculative. The
    appellant identifies five alleged errors.

[4]

We agree with the respondent that the test is set out in
R. v.
    Lohrer
, [2004] 3 S.C.R. 732 at para. 2, namely,

The misapprehension of the evidence must go to the substance
    rather than to the detail. It must be material rather than peripheral to the
    reasoning of the trial judge. Once those hurdles are surmounted, there is the
    further hurdle (the test is expressed as conjunctive rather than disjunctive) that
    the errors thus identified must play an essential part not just in the narrative
    of the judgment but in the reasoning process resulting in a conviction.

[5]

In our view, the errors asserted by the appellant do not meet the test, whether
    considered individually or cumulatively. Moreover, the trial judges reasons
    are capable of being read in a manner that does not reflect any misapprehension
    of the evidence.

[6]

We would add that the trial judge made one uncontroverted finding based
    on the complainants evidence and the trial judges own observations of the
    complainants back and arm. His evidence that he had been beaten with a belt was
    corroborated by scars on his back and arm, for which the appellant provided no
    explanation.

[7]

The appeal against sentence was not pursued either in the factum, or in
    oral argument. Leave to appeal sentence is denied.

[8]

The appeal against conviction is dismissed.

G.R.
    Strathy C.J.O.

K.
    Feldman J.A.

David
    Watt J.A.