WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

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

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

(iii)     REPEALED: S.C.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

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

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

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

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

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    that could identify the victim shall not be published in any document or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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stone, 2020 ONCA 448

DATE: 20200706

DOCKET: M51526 (C67905)

Juriansz J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

John Paul Stone

Applicant

Margaret Osadet, for the applicant

Lisa Fineberg, for the respondent

Heard: July 3, 2020 by videoconference

Juriansz J.A.:

Overview

[1]

On a 19-count indictment, the applicant pled
    guilty to four offences, including the offences of invitation to sexual
    touching, contrary to s. 152 (count 7) and sexual interference contrary to s. 151
    (count 16), under the
Criminal Code
,
R.S.C., 1985, c. C-46. The
    other two offences were trafficking a substance included in Schedule 1
    (methamphetamine), contrary to s. 5(1) of the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19 (counts 18 and 19).

[2]

The parties filed an Agreed Statement of Facts in
    relation to the four counts on the understanding the court would hear evidence
    about disputed facts pursuant to ss. 723 and 724 of the
Code
. The
    Crown called eight witnesses and the defence called two witnesses. Based on the
    Agreed Statement of Facts and his findings on the evidence beyond a reasonable doubt,
    the sentencing judge described the applicants offences as a toxic mixture of
    sustained trafficking in methamphetamine to numerous adults and children, over
    prolonged periods of time, with clear evidence that the trafficking to children
    was used as a means of grooming and facilitating sexual abuse in relation to
    those children.

[3]

The sentencing judge imposed a global sentence
    of six years in custody. He thought it appropriate to impose higher sentences on
    the trafficking counts than on the sexual counts because the more pervasive methamphetamine
    trafficking activity  essentially formed the manipulative platform or tool
    used by Mr. Stone to enable his perpetration of repetitive sexual misconduct in
    relation to his numerous young victims. He imposed custodial sentences of
    three years on each of the trafficking convictions, 20 months on the invitation
    to sexual touching conviction, and 22 months on the sexual interference
    conviction. The trafficking sentences were made consecutive to each other because
    they stemmed from two non-overlapping periods of trafficking. The sexual
    counts were made consecutive to each other as they occurred at different times
    and involved different victims. Each sentence for a sexual conviction was made
    concurrent to the trafficking conviction in the corresponding time frame. This
    resulted in a six year global sentence.

[4]

The applicant seeks leave to appeal sentence and
    applies for release pending that appeal.

[5]

The Crown did not oppose granting leave to
    appeal sentence. Leave to appeal sentence is granted.

[6]

Counsel for the applicant submits that the sentencing
    judge did not take into appropriate consideration the prolonged sexual abuse
    that the applicant had suffered earlier in life, and that all sentences should
    be concurrent rather than consecutive.

[7]

The submission counsel presses most strenuously is
    that the applicant should be granted release because of the COVID-19 pandemic.
    She has filed a lengthy affidavit from Dr. Aaron Orkin, an expert
    epidemiologist, who outlines the risks for the spread of COVID-19 in congregate
    facilities such as jails. Dr. Orkin sets out data showing that the prevalence
    of COVID-19 in Ontario correctional institutes is several magnitudes higher
    than the prevalence in the general population. He does not set out the equivalent
    data for federal institutions. He explains that jails are in the category of what
    he terms not fully voluntary congregate settings (NFVCS). He accepts that
    NFVCS remain in operation because of their socially essential function. However,
    he states that from a public health perspective it is preferable to depopulate
    and decongregate these settings rather than resort to secondary mitigation
    strategies. He points out that every admission prevented, and every resident
    discharged or released, is an opportunity to flatten the curve and improve
    health for the individual involved, other inmates in the facility in question,
    staff at the facility in question, and the public. Dr. Orkin also foresees a second
    wave of outbreaks in correctional facilities in the future should mitigation
    measures be relaxed without reducing populations.

[8]

Dr. Orkin acknowledges his perspective is from a
    medical and population health perspective and that [a] judicial official  deciding
    whether or not to detain somebody will take various factors into account, and
    will have to balance public health and individual safety against factors
    outside of [his] area of expertise in determining what is in the communitys best
    interest.

Analysis

[9]

Section 679(4) of the
Code
sets out
    three criteria of which the applicant must satisfy the court on a balance of
    probabilities to obtain release pending appeal:

(a)
the appeal has sufficient merit that, in the circumstances, it
    would cause unnecessary hardship if he were detained in custody;

(b)
he will surrender himself into custody in accordance with the
    terms of the order; and

(c)
his detention is not necessary in the public interest.

(1)

Section 679(4)(a)

[10]

The legal test of unnecessary hardship under
    s. 679(4)(a) depends on the likelihood the applicant would spend more time in
    custody than his sentence is ultimately determined to be, considering the
    merits of the appeal:
R. v. Hassan
, 2017 ONCA 1008, at para. 33.

[11]

I see little merit in the appeal. The sentencing
    judge discussed at length the reality that [the applicant] himself is the
    victim of devastating prolonged and horrific sexual abuse. It was up to him to
    weigh that circumstance. As well, there is no error in principle in the
    sentencing judges reasons for imposing consecutive sentences for the trafficking
    offences and for the sexual offences. The applicant supplied methamphetamine to
    17 different identifiable individuals over two distinct time periods, two of
    whom were the complainants in the
Criminal Code
offences. The applicant
    concedes that the global sentence was within the sentencing range for those
    offences.

[12]

In my view, there is little prospect that the
    appeal will result in the appellant spending more time in custody than his
    sentence is ultimately determined to be. My view is that the appeal, even if
    successful, would be determined before the term he must ultimately serve has
    expired.

(2)

Section 679(4)(b)

[13]

The Crown pointed out that in 2017 the applicant
    had been charged with failing to attend court and that the charge was withdrawn
    when he pled guilty to other charges. However, she did not press the
    application of s. 679(4)(b). I am satisfied that the applicant has met his onus
    on this ground.

(3)

Section 679(4)(c)

[14]

It is in the public interest that the spread of
    COVD-19 in correctional institutions be minimized. The current COVID-19
    pandemic is a factor that is to be considered in assessing the public interest
    criterion:
R. v. Omitiran
, 2020 ONCA 261, at para. 26;
R. v. Jesso
,
    2020 ONCA 280, at para. 36.

[15]

That said, the primary responsibility for the
    safety of inmates in federal correctional institutions lies with the federal government
    and Corrections Canada. The applicant points out that the Honourable Bill
    Blair, Minister of Public Safety and Emergency Preparedness, on March 31, 2020,
    recommended that the Superintendent of Prisons and the Head of the Parole Board
    consider releasing inmates. The Superintendent and the Parole Board may have
    resort to special powers to grant early parole to inmates whose release will
    not pose an undue risk to the public.

[16]

In contrast to the comprehensive perspective
    Corrections Canada may take, the focus of a court is necessarily solely on the
    individual case before it and the administration of the law (in this case, s.
    679(4) of the
Criminal Code
).

[17]

The fact is that the applicant has been
    sentenced to six years in custody in a federal penitentiary. Being on release
    for a few months now will not change the fact he must serve his sentence and may
    be serving it during the second wave of COVID-19 that Dr. Orkin foresees,
    should it occur.

[18]

In this case, the applicant is in custody at Bath
    Institution where no inmate has tested positive to date. The applicant is diabetic
    and a former smoker and says he is especially vulnerable to the virus. He
    attributes his high sugar levels to being incarcerated. The Crown has introduced
    evidence that he has consistently been purchasing from the canteen a high
    number of products high in carbohydrates such as pop, cookies, swiss rolls, and
    Fudgee-O cookies. The evidence does not satisfy me the applicants high sugar
    levels are attributable to his incarceration.

[19]

If, in the future, there is an outbreak of
    COVID-19 at Bath Institution, it will up to the prison authorities to take
    appropriate measures to ensure the health and safety of those who are
    incarcerated or work in the institution, as well as of the general public.

[20]

In this individual case, the applicant has not satisfied
    me that his detention is not necessary in the public interest. In addition to
    the considerations noted above, the evidence shows that the applicant has
    previously breached recognizances, breaches that involved the use of drugs,
    access to a computer and the Internet and child pornography. Troubling is the
    sentencing judges finding the applicant has no insight into his sexual
    preference for prepubescent and pubescent individuals. His plan of release is
    weak, proposing his spouse as surety, and that he be released to live with her.
    As noted, the applicant has committed offences while on bail before, albeit not
    with his spouse as surety. The acts for which he has been sentenced are serious
    crimes against children.

Disposition

[21]

Having considered all the applicants
    submissions including those relating to COVID-19, I am not satisfied the test
    for granting release pending appeal is met. The application for release pending
    the appeal is dismissed. I order the preparation of the transcripts, if
    necessary, and the appeal to be expedited. The parties may arrange an expedited
    date with the Courts Appeal Scheduling Unit.

R.G.
    Juriansz J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.C., 2020 ONCA 469

DATE: 20200720

DOCKET: C66715

Pepall, Hourigan and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.C.

Appellant

James Foord and Brandon Crawford, for
    the appellant

Megan Petrie, for the respondent

Heard: June 5, 2020, by video conference

On appeal from the conviction entered on
    October 21, 2018, by Justice Michelle OBonsawin of the Superior Court of
    Justice, with reasons reported at 2018 ONSC 6338.

REASONS FOR DECISION

I.

Introduction

[1]

The complainant, VC, alleged that her brother,
    the appellant TC, sexually assaulted her on an almost daily basis from the time
    she was four until she was approximately 16 or 17 years old. She reported the
    assaults to the police years later as an adult.

[2]

TC was charged with one count of sexual assault,
    one count of incest, two counts of sexual assault with a weapon (a hairbrush
    and a doll), and two counts of mischief for damaging VCs property, namely her
    dolls, clothing, and bedding. Each charge encompassed multiple incidents and
    spanned a 13 to 15-year period. TC was convicted on all counts.

[3]

TC raises the following issues on appeal:

(1)

The trial judge erred in law by misapprehending
    the importance of the evidence of AM, his ex-wife, and/or failing to provide
    meaningful reasons as to how that evidence could be reconciled with that of VC
;
and

(2)

the trial judge erred in law by applying uneven scrutiny
    to the Crown and defence evidence.

[4]

For the following reasons, we dismiss the
    appeal.

II.

Background Facts

[5]

TC is four years older than VC. CC is their
    father, and JC is their mother. VC testified that the sexual abuse began with
    touching when she was four years old, and progressed to digital penetration and
    penetration with objects such as a hairbrush and toothpaste tubes. VC testified
    that TC would insert his penis inside her vagina, the first time being when she
    was seven or eight years old. He would also occasionally penetrate her anally
    with his fingers.

[6]

VC gave evidence that when she was approximately
    in grade five, TC started playing with his penis near her mouth, and it
    progressed to him putting his penis inside of her mouth. She says that when TC
    would babysit her, he would masturbate, urinate and defecate on her. VC alleges
    that there was one incident when she was 14-15 years old when TC defecated
    inside her mouth while she was asleep. TC is also alleged to have masturbated
    on VCs belongings, including her underwear, dolls, hairbrush and bed. VC
    testified that she disclosed to AM that TC had abused her. She says that there
    were two occasions when another person witnessed a sexual assault by TC: once
    by a relative who was VCs age, and on another occasion by her father.

[7]

At trial, the Crown called a forensic scientist who
    testified that TCs semen was found on two of VCs dolls.

[8]

TC did not testify at trial. However, the
    defence called VC and TCs parents, as well as AM, as witnesses. The father
    denied witnessing a sexual assault, and both parents stated that they had never
    noticed urine or feces on furniture or bedding. AM testified that sounds would
    be heard throughout the house because the walls were thin, that VC never
    disclosed the sexual abuse to her, and that she never smelled urine or feces in
    VCs bedroom.

[9]

The Crown called VCs pediatrician in reply to
    respond to JCs evidence that she took VC to see the doctor because she was
    concerned that TC might have sexually assaulted her. The pediatrician had no
    recollection of potential sexual abuse being raised with her and had no note in
    her file to that effect.

[10]

The primary issue at trial was the credibility
    and the reliability of several witnesses evidence regarding the allegations of
    long-term sexual abuse by TC. The defence pointed out that VCs evidence was
    inconsistent on the details and timing of various incidents, that new
    information about various incidents was disclosed for the first time at trial,
    and that other witnesses contradicted her evidence. The Crown argued that VC
    was credible and reliable, that any inconsistencies were minor in nature, and
    that her evidence was corroborated by the forensic evidence of TCs semen on
    her dolls.

[11]

In her reasons, the trial judge summarized the
    Crown and defence submissions and reviewed the evidence of each witness in considerable
    detail.  She found that most of the inconsistencies in VCs evidence were with
    respect to the time and location of events and that it was understandable that
    such details would blend in VC's mind. She also found that new details
    disclosed during VCs testimony at trial were explained by the fact that VC was
    asked more questions than previously and that these new questions elicited
    further information. The trial judge did not find JC and CC to be credible or
    reliable witnesses but accepted AM's testimony regarding the house's acoustics.
    Ultimately, the trial judge was satisfied that the Crown had proven all of the
    charges beyond a reasonable doubt and convicted TC on all counts.

III.

Analysis

(1)

AMs Evidence

[12]

AM was the last defence witness. She testified
    briefly about the acoustics in the home, what she observed and smelled while in
    VCs bedroom, her alleged conversations with VC about the abuse, and
    communications with VC after VC had left the family home.

[13]

The trial judge summarized AMs evidence in her
    reasons and later commented as follows:

For her part, AM gave her evidence in a
    forthright manner. She was not combative during cross-examination, but very
    matter of fact. AM testified about two main areas: the acoustics of the house
    and VCs disclosure to her about being sexually abused by her brother. AM
    testified that she went to VC and TCs house for the first time in 2001. With
    respect to AM not smelling any odours in VC's bedroom, it is important to note
    that this was in 2001 and afterwards when VC was eighteen years old and TC was
    twenty-two years old. By this time, as per VCs evidence, the sexual assaults
    had stopped. It is therefore logical that there would not have been any odour
    by that time and if there was, VC laundered her bedding. AM also denied that VC
    told her about being sexually assaulted by TC.

AM described VCs complaints as a revenge
    tactic because she was angry at TC for breaking up the family business. AM
    testified that there was a Facebook message that demonstrated VCs anger,
    however, it was not tendered as an exhibit. AMs allegation about VCs
    complaint as a revenge tactic is not supported by the evidence. The family
    business broke up in 2011. VC did not file her complaint with the Guelph police
    until 2014.

Based on my overall review of AMs testimony,
    I accept her evidence regarding the acoustics of the house.

[14]

TC submits that the trial judge did not address
    the significance of AMs evidence, which was not rejected, and which directly
    contradicts VC in the following areas:

(a) VC testified that she told AM that TC
    sexually abused her. AM, on the other hand, testified that VC never disclosed
    that TC sexually abused her;

(b) VC testified that AM revealed to her that TC
    was "very, very forceful in the bedroom" towards her. AM testified
    that this conversation never happened and that she was never subjected to
    violence in the bedroom by TC;

(c) VC testified that she wanted nothing to do
    with TC since the time she finished university in 2006. However, AM testified that
    VC invited TC and AM to her wedding in 2006 and asked that they be witnesses
    and further that VC sent TC and AM two Facebook messages during this period;
    and

(d) VC testified that her parents removed the
    door from her room just before she moved out because she would slam it. AM
    testified that there was a door on the frame.

[15]

TC advances two primary arguments regarding the
    trial judges treatment of AMs evidence. First, he submits that the failure to
    consider evidence relevant to a material issue constitutes a misapprehension of
    the evidence. Second, TC argues that because VC and AM provided two
    incompatible versions of events, neither of which were rejected, the trial
    judge was required to provide meaningful reasons as to how this conflict was
    resolved. His position is that she did not do this and that the failure to
    articulate how credibility concerns should be resolved constitutes a reversible
    error.

[16]

We do not give effect to

either of these
    submissions.

[17]

The Crown concedes that the trial judge could
    have done a better job in analyzing AMs testimony. However, the Crown submits
    that

it is inherent in the trial judges acceptance of VCs evidence,
    and her finding that inconsistencies in VCs evidence mostly related to
    peripheral issues, that
,
to the extent AMs evidence conflicted with
    VCs, the trial judge either did not accept it or did not consider it material
    to the central issues at the trial or detrimental to VCs credibility, and was
    not left in a reasonable doubt on the whole of the evidence. We accept that
    submission.

[18]

It is also essential to carefully review the
    evidence in issue and place it in the context of all of the evidence at trial. When
    that exercise is undertaken, it is clear that the trial judge did not fail to
    consider evidence relevant to a material issue.

[19]

The evidence regarding the wedding invitation
    and the Facebook message
s
after the alleged abuse was of marginal assistance.
    Similarly, AM testified that she was only in VCs bedroom on a few occasions, so
    her evidence regarding whether VCs bed smelled and whether VCs bedroom door
    was in place was not particularly helpful in assessing VCs credibility and
    reliability.

[20]

At first blush, the evidence regarding VCs
    disclosure of the alleged abuse, and the conversation regarding TC being
    aggressive with AM, are more relevant. However, the evidence regarding the
    disclosure of the abuse was quite limited. VC testified that, in the context of
    a discussion about AM's treatment by her former boyfriends, she told AM that
    she had been abused when she was younger. She described the conversation after
    that revelation as follows:

And she said you were abused? By who your
    brother? And I just, you know, nodded or said yes and I didn't give her any
    detail as to anything. I had mentioned that he had had another incident as well
    but again didn't give any detail or real information. Just kind of in passing.
    It was more brought up in a note of kind of reassurance that, you know, there's
     I was hoping it would maybe open something up but it didn't. It just got
    passed along and continued talking about, about her issues and never spoke of
    it again.

Later in her testimony, VC confirmed
    that it would have been clear to AM that she was saying that TC had sexually
    abused her in the past.

[21]

It is evident from this testimony that the
    revelation consisted of a very brief reference during a discussion about AMs
    experiences with past boyfriends that were abusive or that would hit her  or
    yell at her and that kind of stuff. VC did not offer details, and AM did not
    ask for any. It may have been preferable for the trial judge to deal with this testimony
    specifically in her reasons. However, from her summary of the evidence, she
    clearly was aware of the evidence but did not consider it sufficiently material
    to merit further comment.  We are not satisfied that this evidence was of
    sufficient importance that the trial judge was required to address it.

[22]

We reach the same conclusion regarding the
    alleged discussion between AM and VC about TC being violent in the bedroom. According
    to VC, she received a call from AM out of the blue wherein AM told her that TC
    had been violent in the bedroom, and AM asked her for details regarding what
    happened to her and the other incident she had previously mentioned. VC said
    that she told AM that she was not comfortable discussing what happened to her
    and that she had no details regarding the other incident. She suggested AM and
    TC undergo marriage counselling. This was a conversation that is alleged to
    have taken place around 2007, years after the alleged abuse. Again, the trial
    judge was alive to this evidence.  However, in our view, she was not obliged to
    deal with this evidentiary discrepancy in her reasons as it was not important
    to her determination regarding VCs credibility and the reliability of her
    evidence
.

[23]

Overall, AMs evidence must be placed in its
    proper context in the case. AM was not a resident of the family home, and in
    her very brief testimony, she was not able to shed much light on whether TC had
    sexually abused VC. The trial judges reasons make clear that she was alert to
    the main inconsistencies between AM and VCs testimony. It was not an error for
    the trial judge to assign these inconsistencies less significance than the
    defence would. Therefore, we do not give effect to this ground of appeal.

[24]

We also do not give effect to the related
    argument that the trial judge provided insufficient reasons regarding AMs
    evidence. TC can only succeed on this ground of appeal if he can establish that
    the reasons are so deficient that meaningful appellate review is foreclosed:
R.
    v. Vlaski
, 2019 ONCA 927, at para. 9, leave to appeal refused, [2020]
    S.C.C.A. No. 78;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at
    para. 10. We are not satisfied that TC has met his onus in this regard. In our view,
    the reasons do not foreclose appellate review. Rather, they explain the basis
    upon which the trial judge convicted TC. The trial judge describes why she
    believed VC and disbelieved her parents. These were the critical witnesses at
    trial, in contrast to AM, whose brief testimony was of marginal assistance.

[25]

TCs real complaint is not that the reasons are
    so deficient that this court cannot review them, but that the trial judge did
    not explicitly deal with all of the areas of evidence that he believes she
    should have. It is well established that it is within the discretion of a trial
    judge to determine what areas of the evidence should be included in his or her
    reasons:
R. v. A.A.
, 2015 ONCA 558, 337 O.A.C. 20, at para. 120;
Vuradin
,
    at para. 17. A trial judge is also not obliged to reconcile every frailty in
    the evidence: see
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at
    paras. 55-56. As explained above, the areas that were not included in the
    reasons were of limited importance, and the fact that the trial judge did not
    reference them in her reasons does not render her reasons deficient.

(2)

Uneven Scrutiny

[26]

TC submits that the trial judge subjected the
    evidence to uneven scrutiny. Specifically, he argues that
VCs evidence
    was approached with a relaxed, forgiving, and sometimes circular assessment. In
    contrast, it is submitted that the defence-led evidence was scrutinized more
    vigorously or not properly considered.

[27]

The basic
principles underlying an uneven
    scrutiny
ground
of
appeal were
summarized
by
Watt J.A.
in
R.
    v. Radcliffe
,
2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 23 to 26,
    leave to appeal refused, [2017] S.C.C.A. No. 274,
as

follows
:

First, as the appellant recognizes, this is a
    difficult argument to make successfully. The reasons are twofold. Credibility
    findings are the province of the trial judge. They attract significant
    appellate deference. And appellate courts invariably view this argument with
    skepticism, seeing it as little more and nothing less than a thinly-veneered
    invitation to re-assess the trial judge's credibility determinations and to
    re-try the case on an arid, printed record:
R. v. Howe
(2005), 2005
    CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59;
R. v.
    George
, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

Second, to succeed on an uneven scrutiny
    argument, an appellant must do more than show that a different trial judge
    assigned the same task on the same evidence could have assessed credibility
    differently. Nor is it enough to show that the trial judge failed to say
    something she or he could have said in assessing credibility or gauging the
    reliability of evidence:
Howe
, at para. 59.

Third, to succeed on the argument advanced
    here, the appellant must point to something, whether in the reasons of the
    trial judge or elsewhere in the trial record, that makes it clear that the
    trial judge
actually
applied different standards of scrutiny in
    assessing the evidence of the appellant and complainant:
Howe
, at para.
    59;
George
, at para. 36.

Fourth, in the
    absence of palpable and overriding error, there being no claim of unreasonable
    verdict, we are disentitled to reassess and reweigh evidence:
George
, at
    para. 35;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[28]

Applying this jurisprudence to the case at bar, we
    would not give effect to this ground of appeal. TC points to multiple examples
    that he argues demonstrate uneven scrutiny. Indeed, virtually every aspect of
    the trial judges reasons is relied on in support of this argument. In our
    view, this is really an invitation to re-try the case. Moreover, as will next
    be discussed, the arguments advanced in support of this ground of appeal are
    meritless.

[29]

The first alleged example of uneven scrutiny is
    that the trial judge dismissed the significance of new evidence arising at
    trial concerning anal penetration, the fact that TC opened VCs vaginal lips
    when he first assaulted her, and other matters, including odours in the home.
    We reject this argument. The trial judge was not concerned about this new
    evidence because, as she explained in her reasons, at para. 56:

The Defence submits
    that new details arose during VCs testimony at trial. It may be so; however,
    VC provided explanations for these new details. She explained that she was in
    the process of her recovery and seeking treatment for her issues and was not
    comfortable at first discussing all the details. However, VC explained that as
    she discussed more about the sexual assaults, more details came back to her.
    Lastly, as stated by the Crown, VC provided additional details during her
    testimony at this trial because she was asked more questions and more details
    were elicited. This is supported by the transcripts of her police interview
    dated February 25, 2014, and the Preliminary Inquiry hearing transcript dated
    April 4, 2017. An absence of detail is not an inconsistency.

[30]

This was a finding open to the trial judge and
    is not an example of uneven scrutiny.

[31]

TC next argues that the trial judge failed to
    deal with inconsistencies between VCs statements to the police and the details
    of the abuse in her testimony. We reject this argument. The trial judge
    specifically noted these inconsistencies and found that they were understandable
    given the time that had transpired since the assaults and the scope of the
    alleged abuse. In any event, VCs precise age when she was subjected to forced
    intercourse or when her brother defecated in her mouth was not critical.

[32]

As another example of uneven scrutiny, TC points
    to the trial judges treatment of AM's evidence that VC sent TC or AM two
    Facebook messages at a point when VC said she wanted nothing to do with TC. We
    do not accept that argument. The intended recipient of one of the messages was
    unclear. In any event, this is another example of evidence that the trial judge
    concluded was peripheral, as she was entitled to do. The trial judge considered
    the alleged inconsistency between VCs testimony and the two Facebook posts,
    and it is apparent she found these inconsistencies, like the others, were not
    significant. This argument amounts to nothing more than a complaint that the
    trial judge failed to say something she was permitted  but not required  to
    say in her credibility assessment. That does not constitute uneven scrutiny.

[33]

The next argument made in support of this ground
    of appeal is that the trial judge erred by relying on CC's rejected evidence in
    assessing JC's credibility. We disagree. The areas of conflict between CC and
    JCs evidence related to issues such as whether their children played together
    in the basement, whether JC slept with a sound machine, and whether she had
    cancer while pregnant with VC. VC's evidence supported CC's evidence on those
    areas. It was not uneven scrutiny for the trial judge to accept CCs evidence
    where it was consistent with VCs evidence.

[34]

TC alleges that the trial judge engaged in
    circular reasoning by excusing inconsistencies in VCs testimony on the basis
    that years of abuse would make it difficult to recall certain details
    accurately. TCs guilt was allegedly used to neutralize problems with VCs
    evidence, making her evidence strong enough to establish TCs guilt. We
    disagree. In our view, it is clear that the trial judge found VC sufficiently
    credible and reliable for reasons unrelated to any assumption of guilt. The
    trial judge simply acknowledged that one might expect the kinds of minor
    inconsistencies identified by TC if the allegations were true, given the nature
    and duration of the alleged offences, and so the inconsistencies were not determinative
    of VCs credibility or reliability.

[35]

TC submits that the trial judges treatment of
    the evidence of VCs pediatrician also demonstrates uneven scrutiny. He notes
    that the trial judge used the fact that there was no note in the doctors file
    about sexual abuse to undermine JCs credibility because JC testified that she
    brought VC to her pediatrician for a visit to see if VC had been sexually
    assaulted. In contrast, the trial judge did not reference the fact that there
    was no note in the doctor's file about yeast infections even though VC gave
    evidence that she went to the doctors office because she had regular yeast infections.
    This is not an example of uneven scrutiny. The evidence regarding whether the
    doctor had been told about potential sexual abuse was vital because it was
    contrary to clear evidence from JC that she brought VC to her pediatrician for
    a visit to see if VC had been sexually assaulted. In contrast, it was unclear
    from VCs evidence which doctor she visited to address the yeast infections.

[36]

As part of this ground of appeal, TC says that
    the trial judge made improper use of the transcripts filed as exhibits at trial
    in her credibility analysis of VC and CC because only portions of the transcripts
    put to VC and CC were made exhibits. TC has failed to particularize this
    allegation. The trial judge made no reference to portions of the transcripts
    that were not exhibits. She is presumed to know the law and what is
    impermissible to rely on in writing her reasons. Therefore, we see no merit in
    this submission.

[37]

Finally, TC submits that the trial judges
    reference in her credibility assessment of JC to the timing of when JC had
    cancer is also an instance of uneven scrutiny. We disagree. The trial judge was
    entitled to rely on this evidence as part of her consideration of JCs credibility
    and her alleged animus toward VC. JC's cancer surgery's timing, in relation to her
    pregnancy with VC, was connected at trial to VCs allegation that, on several
    occasions, JC yelled at VC that she should have just aborted her.

IV.

Disposition

[38]

For the foregoing reasons, the appeal is
    dismissed.

S.E. Pepall J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vidinovski, 2020 ONCA 433

DATE: 20200702

DOCKET: C66569

Doherty, MacPherson and Benotto
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Suzana Vidinovski

Appellant

Grzegorz Dorsz, for the appellant

Jerry Brienza, for the respondent

Heard: in writing

On appeal from the convictions entered
on June 26, 2018 by Justice Alfred J. OMarra of the Superior Court of Justice,
sitting with a jury.

REASONS FOR DECISION

[1]

Following a trial before OMarra J. sitting with
a jury, the appellant was convicted of three charges of fraud over $5,000 and
four charges of uttering forged documents. She received a sentence of 18 months
custody followed by probation. The appellant appeals the conviction.

[2]

The complainant, Linda Sargeant, owned a real
estate brokerage, Core Realty Group Inc. In 2011, Ms. Sargeant hired the
appellant as a general office worker. The appellant impressed her employer and
was soon given increased duties. Before long, the appellants duties included
many of the financial functions of the office. She managed the Accounting and
Trade Record System, created employee paycheques, paid bills, and managed
deposits into the companys various bank accounts.

[3]

In October 2014, Ms. Sargeant decided to
terminate the appellant. At about the same time, she became suspicious of the
appellants management of some of her financial duties. After her own
investigation, the police became involved and the appellant was charged.

[4]

The appellant was convicted of defrauding the
business in three ways:

·

By generating additional payroll cheques and
forging Ms. Sargeants signature on them, then depositing the money into two
personal accounts;

·

By forging letters of direction on the companys
letterhead authorizing the companys bank to provide her with money orders made
out to Metcap Living Management, her landlord; and

·

By creating and depositing cheques, again with a
forged signature, labelled as petty cash, but drawn from the general account.

[5]

The appellant advances three grounds of appeal.

[6]

First, the appellant contends that the trial
judge erred by failing to grant a mistrial application made by her trial
counsel in response to extremely inflammatory comments by the complainant
during re-examination.

[7]

The impugned comments occurred in this exchange
during the re-examination of the complainant:

Q.  Ms. Sargeant, you were asked some
questions in cross-examination about whether you had made romantic advances to
Ms. Vidinovski and I saw and again now youre smiling and you smiled when you
answered some of those questions and can you just explain why youre smiling?

A. Well for many reasons, it makes me
emotional because its very hurtful. Im in a very loving relationship that I
honour. I was nothing but fair to Suzana. And I think that you know everybody
has a son, everybody has a daughter, everybody has a friend and I think to pull
the gay card for an excuse for very bad invasive behaviour (indiscernible) I
dont publicize my life for people. I think that its just a dreadful out for
people to do that and you know here we are today, were all decent people and
were in the me too environment and I think that things like that being
thrown around so frivolously in a courtroom when someone is alleged to have
done this type of thing to me is absolutely abhorrent on behalf of a young
lawyer that I think should go to the validity of the case and whats before the
courts and people like you versus that sort of attack with someone like me. It
is visceral. I have in the  and people can search this on the internet if they
want, yeah its abhorrent. I set precedence in Canadian law for bad behaviour
with a company about poisonous work environment and sexual harassment and I
would be the last person to tolerate that in my office. Its abhorrent.

[8]

Shortly after, defence counsel asked the trial
judge to instruct the jury about this alleged attack. After the lunch break,
defence counsel asked for a mistrial. He said that these comments tainted his
clients defence because the complainant had accused him of using the gay
card. On appeal, the appellant contends that the trial judge erred by not
declaring a mistrial.

[9]

We do not accept this submission. The trial
judge carefully questioned defence counsel and then gave this mid-trial instruction
to the jury:

Ladies and gentlemen, before continuing with
the witness who was giving evidence earlier there are two instructions I wish
to give you concerning matters raised in re-examination by Ms. Sargeant.

The other matter is that Ms. Sargeant commented
about defence counsel raising a certain issue that she, with respect to a
suggested romantic interest in the accused that she found personally abhorrent.
Counsel, as defence counsel, is obligated indeed counsel is duty bound to
advance vigorously any defence theory and indeed it is not improper to have
done do. In fact it is expected of defence counsel to do so.

[10]

In
R. v. Burke
, [2002] 2 S.C.R. 857,
the Supreme Court of Canada said that a mistrial should only be used to prevent
a miscarriage of justice and, at para. 75, the trial judge is in the best
position to assess the circumstances of each individual case and select the
most appropriate remedy. We see no error in how the trial judge handled the
mistrial application in this case.

[11]

Second, the appellant submits that the trial
judge erred by dismissing her
Corbett
application to exclude any
reference to her previous criminal record: see
R. v. Corbett
, [1988] 1
S.C.R. 670.

[12]

The appellant had been previously convicted of
fraud offences, but more than 20 years ago. The trial judge decided to allow
the jury to know of these previous convictions, but he also provided the jury
with a strong caution.

[13]

In
R. v. R.D.
, 2019 ONCA 951, at para.
13, this court said that deference is owed to a trial judges determination of
a
Corbett
application.  We see no reason to interfere with the trial
judges analysis and conclusion on the
Corbett
issue in this case.

[14]

The defence made the credibility of the
complainant a central issue at the trial. As explained by the trial judge in
his
Corbett
ruling:

I consider in the
balance as well the nature of the defence advanced in this trial, which has
been a concerted attack on the credibility of the complainant, Linda Sargeant,
the owner of the realty company alleged to have been defrauded by the
applicant. It is alleged that the complainant has fabricated the fraud
allegations to prevent the applicant from pursuing a sexual harassment
complaint.

[15]

In this context, the trial judge was entitled to
permit the jury to know about the previous fraud conviction. Importantly,
however, the trial judge also reminded the jury that the previous conviction
was in 1994, well before the events that gave rise to the current charges. He
also emphatically warned the jury that just because the appellant had committed
fraud in the past did not mean that she was guilty of committing the same
offence now.

[16]

Third, the appellant asserts that the trial
judge delivered an unbalanced and unfair jury charge.

[17]

There is no basis for this claim. The trial
judge gave a balanced charge, both quantitatively and qualitatively. In
particular, the trial judge highlighted some of the main issues in the
appellants position, especially difficulties with the complainants testimony.
The jury charge was balanced and fair. Although the trial judge did not follow
the common and desirable practice of reviewing his proposed jury charge with
counsel before delivering it, we cannot say that this casts doubt on this
conclusion.

[18]

The appeal is dismissed.

Doherty
J.A.

J.C.
MacPherson J.A.

M.L.
Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Shortt (Re), 2020 ONCA 482

DATE: 20200723

DOCKET: M51620 & M51622 (C67425)

Strathy C.J.O. (Motions Judge)

IN
    THE MATTER OF:  Wesley Shortt

AN
    APPEAL UNDER PART XX.1 OF THE
CODE

Jeff Marshman, for the appellant Wesley
    Shortt

Dena Bonnet, for the respondent the
    Attorney General of Ontario

Janice E. Blackburn and Andrew W.
    MacDonald, for the respondent the Person in Charge of St. Josephs Healthcare
    Hamilton

Anita Szigeti, Maya Kotob, Michael Davies and
    Meaghan McMahon, for the proposed intervener the Empowerment Council

Jill R. Presser and Cassandra DeMelo, for the
    proposed intervener The Criminal Lawyers Association

Heard: In writing

REASONS FOR DECISION

[1]

These reasons address motions by the Empowerment
    Council (EC) and the Criminal Lawyers Association (CLA) for leave to intervene
    in an appeal from a decision of the Ontario Review Board (the Board).

[2]

The appeal is scheduled to be heard on September
    11, 2020. In the interests of expediency, these reasons will be brief.

[3]

I observe at the outset that there is no dispute
    about the suitability of either of the proposed interveners, both of which have
    a history of engagement and assistance to the courts in the matters at issue.

[4]

In considering the proposed interventions,
    however, it is important to consider the nature of the case and the issues that
    arise. The focus of the appellants appeal from the Boards disposition is the
    dismissal of his
Charter
application. As the CLA puts it, the issue
    whether the failure to provide resources in the community represents a breach
    of Mr. Shortts rights under section 7 of the
Charter
, and if so, what
    the appropriate remedy would be.

[5]

The order sought on appeal is a direction that
    funding be made available to facilitate Mr. Shortts transition into supportive
    community housing.

[6]

It is also important to note that the appellant
    makes no complaint about the exercise of the Boards inquisitorial powers at
    his Board hearing on July 18, 2019, as directed by this court in its reasons in
    relation to the 2018 disposition: see
Shortt (Re)
, 2019 ONCA 232.

[7]

It is apparent that, with the active involvement
    of the appellants counsel, considerable effort took place, during several
    pre-hearing conferences and at the hearing itself, to ensure that appropriate
    evidence was available to enable the Board to discharge its responsibilities.
    The appellant makes no complaint about the adequacy of that evidence. His
    complaint is about the lack of funding to enable him to transition to a
    suitable community facility.

[8]

In this context, I am not satisfied that the
    proposed intervention by the EC would make a useful contribution to the
    resolution of the appeal, without causing unfairness to the other parties. The
    focus of its proposed intervention is the interpretation and application of the
    Boards inquisitorial role, including the scope of its inquisitorial powers and
    duties. While that issue may be peripherally in play on the appeal, granting
    leave to intervene on the issue would not assist the court and would be unfair
    to the other parties. While I recognize that this is not the only ground on
    which the EC seeks leave to intervene, I do not see that it adds any greater
    perspective on the other issues than will be provided by the appellant or the
    CLA.

[9]

The CLA seeks leave to intervene on two issues:
    (a) the need for the Board to consider systemic issues in fashioning
    appropriate individualized remedies even if it cannot grant systemic remedies;
    and (b) whether the Board has remedial
Charter
jurisdiction to make
    funding orders.

[10]

The first issue is peripheral in my view. The
    Board clearly considered systemic issues and made a finding, at para. 51, that
    the path to successful community integration has been unavailable due to
systemic

challenges
[Boards emphasis] that are both bureaucratic and fiscal.

[11]

The second issue, however, is central to the
    appeal. On this issue, the CLAs broad experience with
Charter
issues
    would provide a perspective that may assist the panel hearing the appeal in a
    manner that will not cause unfairness to the other parties.

[12]

I therefore order as follows:

(a)

the motion of the EC is dismissed;

(b)

the motion of the CLA is granted, but only with
    respect to the second issue identified above;

(c)

the CLA may file a factum of up to 15 pages and
    may make oral submissions of up to 15 minutes, in the discretion of the panel
    hearing the appeal;

(d)

the CLA shall file its factum within 10 days of
    the release of these reasons or such greater time as the parties may agree;

(e)

the CLA shall accept the record as is and shall
    not augment the record; and

(f)

the CLA shall not seek costs and shall not be
    liable for costs.

[13]

The time allocations for the appeal are revised
    as follows:

(a)

Appellant (including reply): 60 minutes

(b)

Respondents, jointly: 45 minutes; and

(c)

Intervener: 15 minutes.

[14]

I do not see any need to increase the length of
    the respondents factums, given the narrow scope of the intervention.

G.R.
    Strathy C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION: Stewart v. Toronto (Police
    Services Board), 2020 ONCA 460

DATE: 20200710

DOCKET: C65779

Brown, Huscroft and Trotter
    JJ.A.

BETWEEN

Luke Stewart

Appellant (Plaintiff)

and

The Toronto Police Services Board

Respondent (Defendant)

Davin Charney and Christopher Rapson,
    for the appellant

Kevin McGivney and Jonathan Thoburn,
    for the respondent

Winston Gee and Sarah Whitmore, for the
    intervenor Canadian Civil Liberties Association

Heard: December 17, 2019, with written cost
    submissions

On appeal from the judgment of Justice
    Bernadette Dietrich of the Superior Court of Justice, dated July 13, 2018, with
    reasons reported at 2018 ONSC 2785 and reasons for costs dated August 21, 2018,
    reported at 2018 ONSC 4790.

COSTS ENDORSEMENT

OVERVIEW

[1]

By reasons dated April 16, 2020, we allowed Mr. Stewarts appeal, set
    aside para. 1 of the trial judges Judgment, allowed Mr. Stewarts claim,
    granted him
Charter
damages in the amount of $500, set aside the award
    of costs made in para. 2 of the Judgment against Mr. Stewart, awarded him costs
    of the appeal in the amount of $20,000, and invited the parties to make written
    cost submissions if they could not agree on the costs below. The parties were
    not able to reach an agreement, and we have reviewed their written cost
    submissions.

[2]

Mr. Stewart seeks costs of the proceeding below on a substantial
    indemnity basis in the amount of $114,584.61. The Toronto Police Services Board
    (TPS) seeks its costs of the proceeding below in the amount of $25,000.

ANALYSIS

Mr. Stewarts claim for substantial indemnity costs

[3]

Mr. Stewart advances three arguments for granting him substantial
    indemnity costs: (i) his action was public interest litigation that warrants
    substantial indemnity costs; (ii) he achieved a result that was more favourable
    than the offer to settle that he made pursuant to r. 49 of the
Rules of Civil Procedure
; and (iii) the proper application
    of the r. 57.01 factors should result in an award of substantial indemnity
    costs. We are not persuaded by these arguments.

[4]

First, Mr. Stewarts action does not satisfy the criteria for awarding
    special costs on a substantial indemnity basis in cases involving public
    interest litigants as set out by the Supreme Court of Canada in
Carter v.
    Canada (Attorney General)
, 2015 SCC 5, [2015] 1 S.C.R. 331, at paras.
    137-140.

[5]

Carter
requires a litigant to satisfy
    two criteria for an award of public interest litigation special costs, the first
    of which is to demonstrate that his proceeding involved matters of public
    interest that are truly exceptional and he has no personal, proprietary or
    pecuniary interest in the litigation that would justify the proceeding on
    economic grounds: at para. 140. Mr. Stewart does not satisfy this first
    criterion. He had an encounter with members of the TPS that he alleged resulted
    in the violation of several of his rights guaranteed under the
Canadian
    Charter of Rights and Freedoms
. Mr. Stewart brought a civil suit seeking a
    remedy for those violations. But, as the Supreme Court observed in
Carter
at para. 137, [a]lmost all constitutional
    litigation concerns matters of public importance. While Mr. Stewart advanced
    important
Charter
claims, we do not regard the
    matters raised in his proceeding as truly exceptional, within the meaning of
Carter
.

[6]

Also, Mr. Stewart has not demonstrated that he has no personal,
    proprietary or pecuniary interest in the litigation that would justify the
    proceedings on economic grounds:
Carter
, at
    para. 140. On the contrary, the pleadings and history of this action show that
    Mr. Stewart had a personal and pecuniary interest in the litigation. He
    initiated the lawsuit in the Small Claims Court but then transferred it to the
    Superior Court of Justice. At trial, Mr. Stewart sought damages for the
    violation of his personal rights in the amount of $100,000 which, at the time,
    was the upper limit for a monetary claim in a simplified procedure action under
    the
Rules
. While Mr. Stewart reduced his request for damages during
    the appeal to $50,000, and then to $20,000, monetary damages as compensation
    for a wrong to his personal rights remained a key element of his claim. Accordingly,
    his action does not satisfy the
Carter
criteria
    for an award of substantial indemnity costs for public interest litigation.

[7]

Second, Mr. Stewart did not obtain a judgment that was as favourable or
    more favourable than the terms of his offer to settle dated May 6, 2014. The
    offer contained three main components: (i) payment to him of $5,000 for all
    claims and damages; (ii) payment of his partial indemnity costs and
    disbursement to the date of settlement; and (iii) a written statement from the
    TPS admitting the facts and liability alleged in certain paragraphs of his
    amended statement of claim. In the result, while this court set aside the
    dismissal of his action, the $500 in damages awarded to Mr. Stewart was far
    less favourable than the amount set out in his offer to settle.

[8]

In his cost submissions, Mr. Stewart states that securing an admission
    of liability from the defendants was the central issue in pursuing settlement,
    not compensation. Since the TPS was found liable for the
Charter
breaches alleged in the portions of the amended statement of claim identified
    in his offer to settle, Mr. Stewart contends that he obtained a judgment more
    favourable than his offer. While Mr. Stewart did succeed in his
Charte
r
    claims, the fact remains that the amount of damages awarded to him was
    substantially less than what he offered to settle for. As a result, Mr.
    Stewarts offer to settle does not engage the costs consequences set out in r.
    49.10(1).

[9]

Finally, Mr. Stewart contends that a proper application of the standard
    r. 57.01(1) factors justifies awarding him substantial indemnity costs. We do
    not agree. We see nothing in the litigation conduct of the TPS in the
    proceeding below that would merit an award of elevated costs.

Partial indemnity costs and the TPS offers to settle

[10]

Although
    Mr. Stewarts costs submissions focused on his claim for substantial indemnity
    costs, his bill of costs records that he incurred partial indemnity costs
    totaling $87,240.76 for the proceeding below. Given that Mr. Stewart ultimately
    succeeded in his action, as a successful litigant he would be presumptively
    entitled to costs on a partial indemnity basis.

[11]

However,
    the TPS made two offers to settle. The first, dated July 2, 2014 (the 2014
    Offer), offered to pay Mr. Stewart an all-inclusive amount of $5,000. The TPS
    made a second offer, dated August 4, 2017 (the 2017 Offer), about six months
    prior to the start of the trial, in which it offered to pay Mr. Stewart $10,000
    for all damages, together with prejudgment interest and partial indemnity costs
    to the date of the offer. The TPS submits that Mr. Stewart obtained a judgment
    less favourable than either of its offers to settle, with the result that Mr.
    Stewart is entitled to his partial indemnity costs to the dates of the offers
    and the TPS to its partial indemnity costs thereafter: r. 49.10(2).

[12]

Putting
    to one side the issue of whether the 2014 Offer continued in force following
    the making of the 2017 Offer, the record before us indicates that it is highly
    unlikely that Mr. Stewart failed to obtain a judgment less favourable than the
    all-inclusive amount of $5,000 offered in the 2014 Offer. Mr. Stewarts
    litigation stretched back to 2011. His bill of costs discloses that he incurred
    at least $4,500 in partial indemnity costs from 2011 until the date of the 2014
    Offer which, coupled with the $500 damage award, would result in a recovery
    greater than the $5,000 TPS 2014 Offer.

[13]

Of
    more consequence is the TPS 2017 Offer. Mr. Stewart obtained a judgment less
    favourable than the TPS 2017 Offer. Rule 49.10(2) provides that in such
    circumstances, the plaintiff, Mr. Stewart, is entitled to partial indemnity
    costs to the date the offer was served and the defendant, TPS, is entitled to
    partial indemnity costs from that date unless the court orders otherwise.

[14]

The
    TPS submits that its reasonable partial indemnity costs from the date of the
    2017 Offer through to the end of trial amounted to approximately $75,000.
    However, that amount is disproportionately high for this simplified procedure
    action in which the upper limit for claimed damages was $100,000. The TPS bill
    of costs discloses that its litigation team consisted of three lawyers, one law
    clerk, and an articling student. While a litigant is free to staff its
    litigation team as it sees fit, for the purposes of determining reasonable partial
    indemnity costs in a simplified procedure action, the hours claimed by the TPS
    are too high. On our review of the TPS bill of costs, reasonable partial
    indemnity costs for the period covered by the 2017 Offer would be in the neighbourhood
    of $40,000.

[15]

Nevertheless,
    even with that reduction of partial indemnity costs, the net result of a strict
    application of r. 49.10(2) would see Mr. Stewart pay the TPS about $8,000 to
    $10,000 in partial indemnity costs, assuming his pre-2017 Offer partial
    indemnity fees constituted approximately 40% of his overall fees.

[16]

Mr.
    Stewart submits that a costs award under which he was required to pay some
    amount to TPS would be a harsh result for a case in which an individual
    successfully enforced his constitutional rights.

[17]

We
    see merit in that submission.

[18]

Rule
    49.10(2) provides a presumption as to costs where an offer is not accepted and
    the discretion to depart from the presumption should be exercised in accordance
    with the purpose of the rule, which is to encourage parties to make reasonable
    offers to settle:
Barresi v. Jones Lang Lasalle Real Estate Services Inc.
,
    2019 ONCA 884, at para. 17. Departure from the general rule embodied in r.
    49.10(2) should occur only where, after giving proper weight to the policy of
    the general rule, the importance of reasonable predictability and the even
    application of the rule, the interests of justice require a departure:
Barresi
,
    at para. 18.

[19]

In
    our view, the present case is one where the interests of justice require a
    departure from the general rule in r. 49.10(2). Although Mr. Stewarts action
    did not meet the criteria for an award of public interest litigation special
    costs, the issues raised by his action will contribute to a better
    understanding of the interplay between
Charter
rights and permissible
    police crowd control techniques.

[20]

As
    well, it is significant that notwithstanding the fact that Mr. Stewart
    maintained his claim for a large amount of damages through to trial, his May 6,
    2014 offer to settle was a serious effort on his part to settle the action for
    a modest amount of damages coupled with an admission of liability from the TPS
    regarding conduct that Mr. Stewart ultimately succeeded in establishing
    violated his
Charter
rights.

[21]

In
    those circumstances, we conclude that it is in the interests of justice to
    depart from the cost presumption contained in r. 49.10(2) and to award Mr.
    Stewart costs of the proceeding below fixed in the amount of $25,000, inclusive
    of disbursements and applicable taxes.

DISPOSITION

[22]

The TPS shall pay Mr. Stewart his costs of the proceeding below
    in the amount of $25,000, inclusive of disbursements and applicable taxes.

David
    Brown J.A.

Grant
    Huscroft J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Toronto-Dominion Bank v. 1633092
    Ontario Ltd., 2020 ONCA 452

DATE: 20200710

DOCKET: C67799

Pepall, Hourigan and Roberts
    JJ.A.

BETWEEN

The Toronto-Dominion Bank

Plaintiff

(Appellant/Respondent by way of cross-appeal)

and

1633092 Ontario Ltd., 2362378
    Ontario Inc., Matthew Rooney and Haley Rooney

Defendants

(Respondents/Appellants by way of cross-appeal)

Oren Chaimovitch and Shawna Sosnovich,
    for the appellant

Andrew D. Ferguson, for the
    respondents

Heard: in writing

On appeal from the judgment of Justice
    Michelle OBonsawin of the Superior Court of Justice, dated March 7, 2019, with
    reasons reported at 2019 ONSC 1473.

REASONS FOR DECISION

INTRODUCTION

[1]

The appellant, Toronto Dominion Bank (the Bank), appeals from a
    summary judgment that held, among other things, that the Bank had negligently
    breached its contract with the respondents. The respondents, 1633092 Ontario
    Ltd. (163), 2362378 Ontario Inc. (236), Matthew Rooney and Haley Rooney,
    cross-appeal.
[1]
The judgment resulted from the hearing of summary judgment motions brought by
    both the appellant and the respondents. The parties dispute centered on various
    loan facilities provided by the Bank.

[2]

The parties were unable to agree on the terms of the judgment. They
    submitted competing versions of the draft judgment along with brief outlines of
    their positions. The motions judge reviewed their submissions, together with her
    amended reasons from March 7, 2019 (the Amended Reasons), and her endorsement
    on costs from May 25, 2019. In an endorsement dated October 17, 2019 on the
    settlement of the judgment, she wrote that there had been an attempt to
    relitigate certain issues, that she had signed the appropriate judgment, and [s]hould
    the Plaintiff wish to argue the Rule in Foss & Harbottle which was not
    before me at these Motions, it can do so before the trial judge.

[3]

The judgment approved by the motions judge recited that summary judgment
    motions made by the appellant and respondents had been heard. The body of the
    judgment consisted of the following five numbered paragraphs:

1.

THIS COURT
    FINDS
there is no genuine issue requiring a trial regarding liability and
    the only genuine issue is the amount(s) to which the parties are entitled. A
    trial of that issue will proceed.

2.

THIS COURT
    FINDS
the Plaintiff, Toronto Dominion Bank, negligently breached its
    contract with the Defendants.

3.

THIS COURT
    FINDS
that Ms. Rooney cannot rely on the improper valuation of the family
    home with regards to the HELOC.
[2]

4.

THIS COURT
    FINDS
the Plaintiff must pay the Defendants costs related to the Motions
    for Summary Judgment in the amount of $20,000, payable within 30 days from the
    date of the Endorsement Regarding Costs.

5.

THIS COURT
    FINDS
since it only dealt with the issue of liability, the issue of damages
    is bifurcated and will be the only issue reviewed at trial. The issue of the
    amount owing from the Defendants to the Plaintiff regarding the HELOC must be
    determined at trial since there will be a potential offset from the
    determination of damages for the Plaintiffs breach of contract.

THE BANKS APPEAL

[4]

We will start with the Banks appeal, which advances two grounds. First,
    the Bank argues that the judgment for negligent breach of contract should not
    be in favour of all respondents because the relevant contract (the agreement
    for the Canada Small Business Financing Loan) was only with 163
and not with 236 or the Rooneys.
Second, the Bank argues that
    the judgment for the outstanding amount under the HELOC should be granted to
    the Bank immediately, together with possession of the home, as the motions
    judge concluded that Ms. Rooney had no defence to the Banks claim for payment
    of the HELOC. Furthermore, the Bank asserts that she would have no right of
    set-off.

[5]

For the reasons that follow, we would allow the appeal on the first
    ground but not on the second ground.

ANALYSIS

[6]

The judgment states there is no genuine issue requiring a trial
    regarding liability. Both parties brought motions for summary judgment, the
    Bank seeking judgment on various loans extended to 163 and Ms. Rooney and the
    respondents seeking damages of $10 million for breach of contract, negligence,
    and negligent misrepresentation.

(1)

The HELOC

[7]

The first issue we will be address on the Banks appeal involves the
    HELOC agreement entered into by the Bank and Ms. Rooney for the principal
    amount of $750,000. Ms. Rooney provided a collateral mortgage on her property
    as security.

[8]

In their statement of defence and counterclaim, the respondents pleaded
    that the HELOC was to be limited to 75% of the value of their home. They stated
    that the Bank relied on an incorrect property description for the appraisal,
    which resulted in an estimated home value of $1,002,000 and available credit of
    $750,000. The respondents agreed to the HELOC and pleaded that they relied on
    the equity in the home to obtain credit to open a new location for their
    restaurant business.

[9]

At paras. 51 and 52 of their statement of defence and counterclaim, the Rooneys
    asserted that the Bank was negligent in assessing the value of the property in
    excess of its worth and in advancing a HELOC in excess of 100% of the property
    value, and also negligently misrepresented that they would not receive a HELOC
    in excess of 75% of its value.

[10]

On
    the summary judgment motion, the respondents argued that the Bank had advanced
    too much money under the HELOC and therefore there was no equity on which they
    could rely as a safety net.

[11]

The
    motions judge found that the respondents were unable to rely on the improper
    valuation of the home.  On learning of the flawed appraisal, Ms. Rooney alerted
    the Bank and she and the Bank entered into a new credit agreement bearing a
    reduced interest rate that was relied upon by the parties and implemented. As
    such, the motions judge held that Ms. Rooney could not take the position that
    the Bank was negligent as a result of the appraisal.

[12]

The
    Bank argues on appeal that the motions judge erred in ruling that the amount
    owing to the Bank on the HELOC had to await trial as there will be a potential
    offset from the determination of damages for the [Banks] breach of contract.

[13]

The
    Bank provided the motions judge with evidence that $803,776.97 plus interest
    was due to the Bank under the HELOC.  However, the parties had agreed that only
    liability would be determined on the motions for summary judgment and the issue
    of damages would go to trial: see para. 87 of the Amended Reasons. The Bank
    appears to be suggesting that set-off is not available to Ms. Rooney because
    the judgment of liability for negligent breach of contract against the Bank is
    only in favour of 163. As explained below, we agree that the judgment should be
    varied to reflect that the Banks contract in respect of the Canada Small Business
    Financing Loan was only with 163. However, as we will explain when we address
    the cross-appeal, the counterclaim is being referred to trial, and the issue of
    any available set-off should be determined at that time.

[14]

We
    would therefore dismiss this ground of appeal.

(2)

The
Canada Small Business Financing
    Act
[3]
(CSBFA) Loan

[15]

The
    next issue to be addressed is the CSBFA Loan made by the Bank.

[16]

As
    a result of a fire at the restaurant, Ms. Rooney met with Bank representatives
    about a $350,000 business loan to reopen the restaurant. In their statement of
    defence and counterclaim, the respondents pleaded that the Bank advised them
    that they were pre-qualified and should make a formal application for the Canada
    Small Business Financing Loan Program, which would allow the respondents to
    borrow at a competitive interest rate, meet all their requirements, and allow
    them to complete their project as planned. The respondents pleaded that the Federal
    Government would guarantee a substantial portion of the loan granted by the
    Bank.

[17]

The
    Bank provided conditional approval for a CSBFA Loan on April 2, 2015. Many
    conditions had to be fulfilled prior to final approval, including the discharge
    of notices of security interest under the
Personal
    Property Security Act
, R.S.O. 1990, c. P.10 (the
PPSA
). On November 21, 2015, the CSBFA Loan was
    approved and the Rooneys attended at the Bank to sign all the banking
    documentation, including a Credit Agreement for $350,000 and unlimited
    guarantees from the Rooneys and 236.

[18]

Prior
    to funding, further documents were required by the Bank. In the meantime, the
    Rooneys paid trades for work done on the project.

[19]

Starting
    in February 2016, the Bank proceeded to fund some invoices, but limited its
    funding to roughly 55% of the amounts submitted. The respondents argued that
    the Bank advised them that it was working on a solution and that funding of the
    balance of the CSBFA Loan would be made under a special loan agreement. Instead,
    on May 17, 2016, the Bank delivered notices of intention to enforce its
    security under the
PPSA
and
Bankruptcy and Insolvency Act
, R.S.C., 1985, c. B-3.

[20]

At
    paras. 45-48 of the statement of defence and counterclaim, 163 (also called Tosh)
    pleaded that the Bank breached its contract with it by failing to advance the
    full amount of the eligible invoices permitted by the CSBFA Loan Agreement and
    failed to perform the contract honestly and in good faith. The respondents
    pleaded that the Bank was negligent in documenting and implementing the CSBFA
    Loan and in limiting the financing to 55% of invoices.

[21]

163
    also pleaded, at para. 53, that the Bank negligently misrepresented that the
    CSBFA Loan was the correct product for the project and that sufficient funding
    for the estimated budget would be available. At para. 61 of their pleading, the
    respondents pleaded that the Bank knew that a failure to fund the eligible
    expenses would lead to a failure of the restaurant to open and the failure of
    the respondents to earn a profit or a living.

[22]

The
    motions judge found that the Bank had agreed to fund the full amount of
    $350,000 and stated, at paras. 73-74 of the Amended Reasons, that the Rooneys
    signed the CSBFA Loan Credit Agreement for $350,000 and Mr. Rooney signed the
    CSBFA Loan Registration Form. The Credit Agreement was signed on November 21,
    2015. At para. 74, the motions judge found that the Credit Agreement is the
    agreement that regiments the loan between the parties.

[23]

At
    para. 78 she concluded: I find that the Bank breached its contract with the [respondents].
    The evidence supports that the Bank breached the provisions of the Credit
    Agreement when it failed to provide the [respondents] with the funding of
    $350,000.00.

[24]

The
    difficulty with the motions judges analysis is that she conflates the
    respondents and treats them as one. Having concluded that the CSBFA Loan Credit
    Agreement governed, she fails to explain how the respondents, other than 163,
    are parties to that agreement. Nor does she particularize any other contract
    with the respondents that she finds was breached by the Bank.  Based on the
    motions judges findings, the negligent breach of contract could only relate to
    163. Moreover, the contract relied upon in the respondents statement of
    defence and counterclaim is that same Credit Agreement, and neither the Rooneys
    nor 236 pleaded a breach of contract other than the generalized prayer for relief.
    Similarly, the respondents notice of motion in support of their request for
    summary judgment also refers to the agreement between the Bank and 163. Absent
    particularized findings connecting the Banks alleged breach of contract to the
    other respondents, there is no basis to support the motions judges conclusion
    that the Bank negligently breached its contract with all of the respondents.

[25]

The
    motions judge erred in treating the respondents as one and in not
    distinguishing amongst them and further erred in approving a judgment that found
    that the Bank negligently breached its contract with all of the respondents.

DISPOSITION OF THE MAIN APPEAL

[26]

For
    these reasons, we would allow the Banks appeal in part. Paragraph 2 of the
    Judgment is to be varied to state that the Plaintiff, Toronto Dominion Bank,
    negligently breached its contract with 1633092 Ontario Ltd.  The remainder of
    its appeal is dismissed.

THE CROSS-APPEAL

[27]

This
    brings us to the cross-appeal of the respondents. They submit that the Judgment
    approved by the motions judge failed to include her findings on breach of
    contract, negligence and negligent misrepresentation and ask that the Judgment
    be varied to properly reflect her reasons. The Bank responds arguing that these
    other causes of action were never pleaded and the judgment ought not to be
    varied to reflect the disposition proposed by the respondents.

[28]

The
    motions judges Amended Reasons suffer from the same defect as the Judgment. All
    of the respondents are treated as one. It would appear from her Amended Reasons
    that she found a negligent breach of contract, negligence and negligent
    misrepresentation. However, the Amended Reasons fail to analyze, with any
    particularity, the causes of action or how the pleadings supported her
    findings. The parties could not agree on and therefore contested the form of
    judgment.

[29]

Following
    receipt of submissions and competing draft judgments, the motions judge approved
    a judgment that only specifically addressed the cause of action for negligent
    breach of contract. Moreover, in her costs endorsement, the motions judge summarized
    her Amended Reasons, stating that she concluded that the Bank had breached its
    contract with the respondents, but said nothing about the remainder of the respondents
    claims. She also authorized the Bank to argue the rule in
Foss
    v. Harbottle
(1843),
    67 E.R. 189 (U.K.H.L.)

at trial. Presumably
    this was to preserve the ability of the Bank to argue that only 163 has
    available causes of action.  As mentioned, damages were also left to trial.

[30]

This
    court has frequently raised the pitfalls associated with partial summary
    judgment motions and we do not propose to repeat them here. See
Butera v. Chown, Cairns LLP
,

2017 ONCA 783, 137
    O.R. (3d) 561, and
Mason v. Perras Mongenais
,
    2018 ONCA 978. Additionally, bifurcation of proceedings sometimes results in an
    absence of precision in the disposition of the claims. Here, given the absence
    of particularized findings connecting the causes of action to the parties
    wronged and to the causes of action advanced in the pleadings, we are of the
    view that the subject matter of the counterclaim should be referred to trial
    along with the issues relating to
Foss v. Harbottle

and damages including any rights of set-off for either of
    the parties.
In addition, the motions judge did not dispose of
    the Banks claims on 163s $25,000 line of credit, 163s Visa account nor the
    unlimited guarantees of 163s indebtedness provided by 236 and each of the
    Rooneys.  These claims are also referred to trial.

DISPOSITION OF THE CROSS-APPEAL

[31]

Accordingly,
    paragraph 5 of the Judgment is varied to refer the subject matter of the counterclaim
    to trial along with the issues described in paragraph 30. For greater clarity,
    neither Mrs. Rooneys liability for the HELOC loan nor the Banks liability for
    negligent breach of its contract with 163 would be tried as those issues have
    already been determined.

[32]

If
    they are unable to agree, the parties are to submit brief written submissions
    on costs, not to exceed three pages in length, within 15 days of the release of
    these reasons.

S.E. Pepall
    J.A.

C.W. Hourigan
    J.A.

L.B. Roberts J.A.

[1]
The
    notice of cross-appeal was not filed separately but was contained in the
    respondents compendium and the appellant did not style any of its materials as
    being in both the appeal and the cross-appeal. Counsel for the parties were
    contacted and confirmed that they both intended that the cross-appeal be
    addressed by the panel.

[2]

Home Equity Line of Credit.

[3]

Canada Small Business
    Financing Act
, S.C. 1998, c. 36.