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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: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information that could identify the victim shall not be published in any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. L.C., 2021 ONCA 848

DATE: 20211125

DOCKET: C67671

Strathy C.J.O., Hourigan and
Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.C.

Appellant

William R. Gilmour, for the appellant

David Friesen, for the respondent

Heard: November 22, 2021

On appeal from the conviction entered on
May 1, 2019, by Justice Erika Chozik of the Superior Court of Justice, sitting
without a jury.

REASONS FOR DECISION

I.        Introduction

[1]

The appellant was charged with sexual
interference and sexual assault. The three complainants, who are sisters, are
the nieces of the appellant. They alleged that the appellant committed the
sexual offences between 1993 and 2000, when they were each between the ages of
four and nine.

[2]

The trial judge found the appellant guilty of
one count of sexual assault and one count of sexual interference. The sexual
assault charge was stayed pursuant to the
Kienapple
principle:
Kienapple
v. R.
, [1975] 1 S.C.R. 729. The trial judge sentenced the appellant to
nine months imprisonment.

[3]

In her reasons for judgment, the trial judge
focused on the issue of collusion. She found that there had been far more
discussion of the details of the allegations between two of the nieces than
either was prepared to admit in their testimony. These discussions gave rise to
a real concern that the similarities of their accounts are the product of
collusion, whether conscious or unconscious.
[1]
The trial judge was thus unable to find beyond a reasonable doubt that the
appellant sexually assaulted or interfered with either of these two nieces.

[4]

Rejecting the appellants evidence as
unreliable and suspect, the trial judge ultimately convicted the appellant of
the offences committed against the third niece. The third niece shared her
memories of the appellants sexual offences via a text to one of her sisters,
before either of her two sisters told her about their experiences with the
appellant. Therefore, the trial judge found that the third nieces memory was
not tainted.

[5]

The appellant appeals his conviction. He does
not take issue with any aspect of the trial or with the trial judges reasons
for judgment.

[6]

The appellants sole ground of appeal is based
upon proposed fresh evidence in the form of two affidavits, submitted by his
sister, who is the aunt of the three complainants. The appellant argues that
the fresh evidence directly contradicts the credibility of the third niece.
Accordingly, he seeks a new trial.

[7]

For the following reasons, we are not persuaded
by the appellants arguments and refuse to admit the fresh evidence.
Consequently, we dismiss the appeal.

II.       Proposed Fresh Evidence

[8]

The appellants sister swore two affidavits: one
dated October 22, 2019 and the second dated November 21, 2020. In her first
affidavit, the appellants sister claimed that the third niece had told her
that she discussed the appellants sexual offences with her two sisters much
earlier than the third niece indicated at trial.

[9]

The facts surrounding the alleged admission of
collusion are as follows. The appellants sister stated that on May 18, 2017,
the day before the appellant was charged, she was working at the family
business and observed a meeting between the three nieces and their father.
After the meeting, the three nieces and their father left the premises and
seemed upset. The appellants sister said she called the third niece later that
evening to ask if she was all right. The third niece shared that there were
serious allegations about a member of the family and the appellants sister
guessed that the member of the family was the appellant.

[10]

The appellants sister swore that she spoke with
the third niece again on May 19, 2017. According to the appellants sister, the
third niece told her that two to three weeks earlier, the three complainants
had spent the evening together drinking wine and had discussed the appellants
sexual offences. Finally, the appellants sister said that she did not offer
this evidence earlier because she was not aware that collusion between the
three sisters was a relevant issue until she read the trial judges reasons for
decision.

[11]

In her second affidavit, dated some thirteen
months after the first, the appellants sister submitted additional evidence,
claiming that we kind of rushed the [first] affidavit and that the purpose of
the second affidavit was to fill in the blanks. According to the appellants
sister, the third niece told her on May 19, 2017 that she couldnt remember
anything about the appellants sexual offences. The appellants sister then
asked the third niece why, if she couldnt remember anything, she wanted to
put [the appellant] in jail.

[12]

The appellant argues that his sisters fresh
evidence directly calls into question the third nieces credibility on a key
issue of evidence  that is, the existence of collusion between the third niece
and her two sisters. In essence, the appellant submits that the conversation
that the three nieces allegedly had over wine, two to three weeks before police
charged him, tainted the third nieces memory.

III.      Analysis

[13]

This court has broad discretion to receive fresh
evidence on appeal where it considers it in the interests of justice:
Criminal
Code
, R.S.C. 1985, c. C-46, s. 683(1). The Supreme Court of Canada
established the test that governs the admission of fresh evidence in
Palmer
v. The Queen
, [1980] 1 S.C.R. 759, at p. 775. This court has since
reformulated the
Palmer
test:
R. v. Truscott
, 2007 ONCA 575,
225 C.C.C. (3d) 321, at para. 92. The inquiry consists of three questions:

1.

Is the evidence admissible under the operative rules of evidence?
(admissibility criterion)

2.

Is the evidence sufficiently cogent in that it
could reasonably be expected to have affected the verdict? (cogency criterion)

3.

What is the explanation offered for the failure
to adduce the evidence at trial and should that explanation affect the
admissibility of the evidence? (due diligence criterion)

[14]

The appellant submits the fresh evidence to
demonstrate that the third niece, a Crown witness, made a prior inconsistent
statement. The respondent concedes that the proposed fresh evidence meets the
admissibility criterion.

[15]

The cogency criterion consists of three prongs:
Truscott
,
at para. 99. In considering cogency, this court asks the following questions:

1.

Is the evidence relevant in that it bears upon a
decisive or potentially decisive issue at trial?

2.

Is the evidence credible in that it is
reasonably capable of belief?

3.

Is the evidence sufficiently probative that it
could reasonably, when taken with the other evidence adduced at trial, be
expected to have affected the result?

[16]

As the respondent acknowledges, the adduced
evidence is relevant because it bears on the decisive issue of the third
nieces credibility. The trial judges finding that the third niece was
credible was central to the ultimate conviction of the appellant.

[17]

In our view, the proposed fresh evidence is not
credible for the following reasons. First, the appellants sister was less than
forthright in her affidavits. During her cross-examination, she declared that
she was able to submit her second affidavit over a year after the first
affidavit because she had a very good memory. Yet she failed, in either
affidavit, to mention a text message that she had sent to the three
complainants on May 19, 2017, when the three nieces were at the police station.
In that text, the appellants sister pleaded with the nieces to not go to the
police, since putting [the appellant] in jail is not going to change anything
and when my mom finds out and if he goes to jail, she will die.

[18]

In addition, the appellants sister refused to
admit the extent of her knowledge of the allegations against the appellant. In
cross-examination, she denied that she knew anything about the nature of the
complainants allegations against the appellant. Yet in her May 19, 2017 text
message to the complainants, she seemed to appreciate that the appellant had
committed a wrong and might go to jail and suggested that the involved family
members seek help from a psychiatrist.

[19]

Further, despite her professed neutrality, we
find that the appellant sisters evidence was tainted by her evident desire to
keep her brother out of jail. During cross-examination, she declared that she
still did not believe that the appellant ought to go to jail. She also agreed,
when questioned, that she disbelieved the complainants and believed the
appellant without knowing any information. Clearly, the appellants sister
was an interested and partial affiant.  For these reasons, we conclude that the
appellant has not met his onus to establish that the fresh evidence is
credible.

[20]

Finally on the credibility point, it should be
noted that in addition to her testimony on collusion, the appellants sister
testified in her second affidavit that the third niece stated that she had no
memory of the appellants sexual offences. It is difficult to believe that the
appellants sister would not have appreciated the significance of this admission
when it was provided to her. The appellants sister has offered no credible
explanation as to why she did not immediately bring the third nieces alleged
admission to the attention of defence counsel or her brother.

[21]

In addition, we are also not persuaded that the
fresh evidence is sufficiently probative. The key piece of evidence upon which
the trial judge relied was the text conversation between the third niece and
one of her sisters. In that conversation, the third niece described how the
appellant would sit her on his lap and engage in dry humping. The trial judge
reasonably concluded that the text conversation was the first occasion on which
the third niece described her experiences to her sister and that her evidence
was untainted by collusion.

[22]

In contrast, the appellant sisters claims
beggar belief. If her central claim  that the three nieces colluded by
discussing the appellants sexual offences at a conversation over wine  is
taken as true, then the only logical conclusion is that the three complainants
anticipated that collusion would become an issue at trial. The third niece
would have had to fabricate a narrative in her text conversation with her
sister in the hopes that the trial court would see her evidence as reliable and
untainted.

[23]

Such conclusions are implausible, and we see no
basis to interfere with the trial judges conclusion that the third niece was a
credible and reliable witness. Her text conversation with her sister was a
critical piece of evidence, and nothing in the appellant sisters affidavits
successfully contradicts that evidence.

[24]

In conclusion, we refuse to admit the proposed
fresh evidence and consequently dismiss the appeal.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

David M. Paciocco J.A.

[1]
In
R. v. C.G
.
, 2021 ONCA 809, at
paras. 28-32, Nordheimer J.A.
explained the analytical difference
between conscious or advertent collusion, on the one hand, and
unconscious or inadvertent collusion, on the other. Specifically,
advertent collusion is a form of conspiracy between witnesses that undermines
their credibility. In contrast, inadvertent collusion caused by innocent
exposure to anothers version of events undermines the reliability of a
witnesss evidence by confusing their memory. He recommended that since the
word collusion connotes conspiracy, it is preferable to refer to inadvertent
tainting.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Leduc, 2021 ONCA 843

DATE: 20211125

DOCKET: C62285

Fairburn A.C.J.O., MacPherson
    and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marc Leduc

Appellant

Howard L. Krongold, for the appellant

Grace Choi, for the respondent

Heard: November 19, 2021

On appeal from the convictions entered by
    Justice Hugh R. McLean of the Superior Court of Justice, sitting with a jury, on
    June 2, 2016.

REASONS FOR DECISION

[1]

This is an appeal from two convictions for first-degree
    murder. The appeal was dismissed with reasons to follow. These are our reasons.

[2]

Two women were murdered about three years apart.
    They were vulnerable sex workers who lived and worked in the Ottawa area. The
    circumstances surrounding the murders were highly similar. Both victims were
    found dead in areas frequented by the public. Both victims showed signs of
    significant and similar struggle, resulting in similar injuries to their face
    and scalp areas. Both victims had foreign objects inserted into their bodies
    while they were still alive  a plastic bag in one case and a tree branch in
    the other. Both victims were found with the foreign objects left inside of
    them. Both victims were found naked from the waist down. Both victims were
    found with their bras lifted above their breasts. Both victims had suffered fresh
    injuries to their vaginal and pubic areas. And both victims were asphyxiated by
    compression to their necks.

[3]

The appellants DNA was found on both womens
    bodies. He was charged and tried for both murders in a single trial. Prior to
    the trial, the appellant brought an application under s. 591(3)(a) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, which permits the trial judge to sever the counts
    where the interests of justice so require. The trial judge considered the
    relevant factors and gave multiple reasons for dismissing the application, the
    most significant of which was the striking similarity between the two events,
    which made it likely that the Crowns similar act evidence application would
    be allowed later in the trial: see
R. v. Last
, 2009 SCC 45, [2009] 3
    S.C.R. 146, at para. 18.

[4]

At trial, the elements of first-degree murder
    were not in dispute. The only real issue for the jurys consideration was
    whether the Crown had proven the appellants identity as the killer beyond a
    reasonable doubt. To help satisfy its burden, the Crown successfully brought a
    similar act evidence application, permitting the jury to consider the evidence of
    each womans murder across counts.

[5]

The appellant raises three issues on appeal. Since
    the appellant maintains that the first two issues are inextricably linked, they
    will be considered together.

[6]

First, the appellant argues that the trial judge
    erred in admitting the similar act evidence across counts. In specific, the trial
    judge is said to have misunderstood the purpose for admitting the evidence
    across counts, a misunderstanding that caused him to apply an erroneously
    diluted standard for admission. Second, and relatedly, the appellant argues
    that this first error pervaded the pre-trial severance application, which was primarily
    denied because of the likely success of the later similar act application.

[7]

The trial judge reasoned that the purpose for
    admitting the evidence across counts was to rebut the possibility that the
    defence would suggest to the jury that it was sheer coincidence that the
    appellants DNA was found on both victims bodies. The trial judge concluded that
    the circumstances surrounding the two murders held such striking similarity
    that, considered across counts, the evidence would work to rebut the suggestion
    of coincidence.

[8]

The appellant contends that, whether or not the
    evidence could be characterized as rebutting coincidence, the cross-count evidence
    was really being tendered to prove the appellants identity as the murderer in
    both cases. By failing to appreciate that the similar act evidence was directed
    at proving identity, rather than disproving coincidence, the trial judge is
    said to have failed to apply the correct admissibility test.

[9]

The appellant further contends that, had the
    trial judge approached the matter correctly, he would have appreciated  as
    this court should  that the evidence fell short of the high degree of
    similarity required when the evidence is admitted across counts to prove
    identity.

[10]

We do not agree that the trial judge applied the
    wrong admissibility test or that the evidence fell short of the required degree
    of similarity.

[11]

When similar act evidence is used to prove
    identity, the law insists upon a particularly high degree of similarity between
    the acts, one that makes it likely that they were committed by the same person:
R. v. Arp
, [1998] 3 S.C.R. 339, at para. 50. The required degree of
    similarity has been described differently over the years, including that the
    acts are strikingly similar in nature:
R. v. Durant
, 2019 ONCA 74,
    144 O.R. (3d) 465, at paras. 89, 98. Where the purportedly similar acts meet
    that standard, the possibility that the accused would repeatedly be implicated
     purely as a matter of coincidence is greatly reduced:
Arp
, at para.
    43.

[12]

Regardless of whether the trial judge described
    the issue in dispute as one of proving identity or disproving coincidence, he
    found that there was a striking similarity between the murders. In the trial
    judges ruling on the pre-trial severance application, he observed that, consider[ing]
    all of the evidence, it would appear there is a striking similarity between the
    two events. He explained his conclusion in some detail. In particular, he
    relied on both victims autopsy reports and the testimony of one victims
    medical examiner, all of which demonstrated the rarity of strangulation deaths,
    objects placed in victims bodies, and sexually motivated homicides.

[13]

The trial judges view did not change after the
    Crowns case had been called and he was asked to rule on the cross-count similar
    act evidence application. In that ruling, the trial judge considered
Arp
and adopted his earlier conclusion that the two murders were strikingly similar
    in nature.

[14]

While the appellant points to some dissimilarities
    between the murders, such as where the foreign objects were found within the
    bodies of the deceased women, it is not for this court to redo the trial
    judges analysis. In light of the many strong similarities canvassed earlier in
    these reasons, the trial judges conclusion was entirely reasonable. His
    ultimate assessment of the probative value and prejudicial effect of the
    evidence, and where the balance lay as between them, involved an exercise of
    judicial discretion and, correspondingly, significant deference on appellate
    review:
R. v. Doodnaught
, 2017 ONCA 781, 358 C.C.C. (3d) 250, at
    para. 153, referring to
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R.
    33, at para. 73.

[15]

As for the impugned severance ruling, it was
    largely based upon the view that the similar act application would likely
    succeed. The appellant does not suggest otherwise. In light of the conclusion
    we have reached on the similar act ruling, we see no basis to interfere with
    the trial judges severance ruling.

[16]

Third, the appellant argues that, even if this
    court finds that the similar act evidence was properly admissible across
    counts, the jury was incorrectly instructed on how to approach that evidence.
    The jury was told that they could use the evidence across counts only for one
    purpose  to disprove that the two incidents were merely the result of
    coincidence, but absolutely for no other purpose.

[17]

The jury was instructed that, before using the
    evidence to disprove coincidence, they had to first make certain findings,
    specifically whether there was a distinct pattern of conduct by the
    appellant, in which case they might find that it defies coincidence. The
    trial judge walked the jury through the similarities and differences between
    the murders. He carefully warned them to avoid improper propensity reasoning. He
    then reminded the jury that they could only use the evidence to disprove the possible
    coincidence if there was a distinctive pattern of conduct which suggested that
    the two murders were similar events. If the jury was unable to find such a
    distinctive pattern of conduct, they were instructed to not use the evidence
    to disprove a coincidence nor for any other purpose.

[18]

The appellant argues that this instruction fell
    short of the mark. It is said to have failed to bring home to the jury that the
    evidence was available for their consideration to prove the identity of the
    perpetrator. Given that it was admitted for purposes of identity, the jury
    should have been instructed that there was only one way in which the evidence
    from one count could be used to reach a verdict on the other count: if the way
    in which the offences charged were committed is so similar that the same person
    likely committed both (all) of them: D. Watt,
Watt's Manual of Criminal
    Jury Instructions
, 2nd ed. (Toronto: Carswell, 2015), Final 28-B (Evidence
    of Other Count(s) Similar Acts to Prove Identity of Perpetrator).

[19]

Respectfully, the difficulty with this
    submission is that it conflicts with the defence position at trial. The trial
    Crown asked the trial judge to provide the classic jury instruction on identity
    as just described, but defence counsel objected. Indeed, defence counsel actively
    dissuaded the trial judge from giving such an instruction, explaining that it
    was not the appropriate charge to give, and that the jury should be
    instructed about rebutting the defence of innocent association [with the
    murdered women] which is not the same thing as to prove identity. This
    position further accorded with defence counsels closing address, where the
    jury was told, Weve all seen in our lives how coincidences can and do
    happen. Now, on appeal, the appellant says that the very instruction resisted
    at trial by experienced defence counsel should have been given.

[20]

Therefore, this is not simply a case where the
    defence failed to object to a charge. Rather, this is a case where defence
    counsel asked that a charge not be given, the trial judge acceded to that
    request, and now, on appeal, the absence of that charge is said to constitute
    reversible error. In our view, this position cannot succeed.

[21]

Aside from the fact that the trial judge acceded
    to the request made by defence counsel, the language emphasizing a distinctive
    pattern of conduct was adequate to the task.

[22]

In our view, the factual circumstances of this
    case meant that the jurys decision would not have turned on a distinction
    between the wording used (distinctive pattern of conduct) and the wording that
    the appellant now says should have been used (so similar that the same person
    likely committed both). Indeed, in the circumstances of this case, where the
    appellants DNA was found on both victims bodies, the distinctive pattern of
    conduct expression may well have inured to the appellants benefit. In any
    event, given the similarities between the murders, there was a distinctive pattern
    of conduct that demonstrated that they were likely committed by the same
    person. In these circumstances, the wording utilized in the charge was adequate
    to the task.

[23]

The appeal is dismissed.

Fairburn A.C.J.O.

J.C. MacPherson J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: D.C. v. T.B., 2021 ONCA 850

DATE: 20211126

DOCKET: C69736

Roberts and Thorburn JJ.A. and
    Tzimas J. (
ad hoc
)

BETWEEN

D.C.

Applicant (Appellant)

and

T.B.

Respondent (Respondent)

Michael J. Stangarone and Aria
    MacEachern, for the appellant

Christina Doris and Jessica Luscombe,
    for the respondent

Heard and released orally:
    November 22, 2021

On appeal from the order of Justice Clayton
    Conlan of the Superior Court of Justice, dated April 30, 2021.

REASONS FOR DECISION

[1]

The appellant mother appeals from the final order of the trial judge
    granting the respondent father sole custody/decision making responsibility with
    respect to their child, R., who is 12 years old. The order also temporarily suspended
    any contact between R. and the appellant or members of the appellants family.
    This order was made following a six-day trial of the respondents motion to
    change the final order of Gibson J. dated November 9, 2016. Under the latter
    order, R. resided primarily with the appellant.

[2]

The appellant submits that the trial judge made several reversible
    errors. First, he misapplied the best interests of the child test, particularly
    in the absence of expert evidence, by making the order he did and failing to consider
    less draconian options. Further, the appellant argues, the trial judge failed
    to give adequate weight to R.s views and preferences, and he misapprehended
    and failed to give appropriate weight to evidence, specifically, that the
    appellant attempted to facilitate the relationship between R. and the
    respondent.

[3]

We see no merit in any of these submissions.

[4]

This was a very difficult case of parental alienation. In his lengthy
    and sensitively written reasons, the trial judge painstakingly reviewed the evidence
    and the parties arguments. He began and ended his reasons with the same focus,
    namely, that the most important person in this case is R. His analysis was
    centred entirely on her best interests. Given the trial judges finding of the
    appellant engaging in parental alienation and manipulation of R., it would not
    have been particularly useful to ascertain R.s views and preferences by way of
    a further assessment or having her testify.

[5]

The trial judges conclusion that the appellant has alienated R. from
    her father and has consistently and for many years now engaged in conduct that
    amounts to parental alienation is, as the trial judge stated, well-grounded
    in the trial evidence, and detailed by the trial judge in his reasons, see,
    for example, at paragraph 163. His thorough reasons can leave no doubt as to
    the clear basis for his decision. In our view, expert evidence was not required
    to permit the trial judge to come to his determination of parental alienation
    based on the evidence that he heard and accepted at trial. We see no error in
    the trial judges treatment of Dr. Fidlers evidence which was appropriate
    in the context of all the evidence.

[6]

There is no question that the final order under appeal changes the
    status quo and that the trial judge was alert to the fact that the order would
    represent a drastic change. But the trial judges reasoning for doing so
    appropriately followed the courts guidance in
A.A. v.
    S.N.A.
, 2007 BCCA 363, 243 B.C.A.C. 301, and
A.M.
    v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th) 1, and is unassailable. As
    he stated, at para. 185 of his reasons:

Given this Court's findings, in particular
    that T. has never abused R. in any way, and that he has never been violent with
    D. as alleged by her, and that he once had a better relationship with R., and
    that D. has engaged in a consistent and long-term pattern of conduct that has
    alienated the child from her father, I have concluded that to maintain the
    status quo would be an error. I cannot focus too much on the short-term effects
    on the child that would result from a drastic change in "custody",
    and therefore keep the child with the parent who has been responsible for the
    manipulation.

[7]

The trial judges order also provides for therapy for R. and other means
    to assist with the transition. It must also be kept in mind that the
    non-communication order is temporary and will be revisited on November 25, 2021.

[8]

The trial judges final order depended heavily on his assessment of the
    evidence and the credibility and reliability of the parties and the other
    witnesses. The appellant is dissatisfied with the trial judges findings,
    particularly those adverse to her credibility, and asks this court to reweigh
    the evidence and revisit those findings. That is not this courts task. We have
    not seen any error that would permit appellate intervention.

[9]

The appellant seeks leave to appeal the $175,000 costs award against her
    on the basis that she was motivated by the best interests of her daughter and
    that the amount of $80,000 would have been appropriate. We do not see any error
    in the trial judges costs award that would warrant leave being granted. An
    award of costs is highly discretionary. While the amount of the award is high,
    it is supported by the trial judges findings in this very difficult case.

[10]

Accordingly,
    the appeal is dismissed.

[11]

As
    agreed, the appellant shall pay the respondent costs of the appeal in the
    amount of $15,000, inclusive of disbursements and applicable taxes.

L.B. Roberts J.A.

J.A.
    Thorburn J.A.

E.
    Ria Tzimas, J. (Ad Hoc)


COURT OF APPEAL FOR ONTARIO

CITATION: Ottawa (City) v. ClubLink
    Corporation ULC, 2021 ONCA 847

DATE: 20211126

DOCKET: C69176

Juriansz, Tulloch and Roberts JJ.A.

BETWEEN

City of Ottawa

Applicant

(Respondent
    on Appeal)

and

ClubLink Corporation ULC

Respondent

(Appellant)

and

Kanata Greenspace Protection Coalition

Intervener

Matthew P. Gottlieb, James Renihan, Mark
    R. Flowers and John Carlo Mastrangelo, for the appellant

Kirsten Crain, Emma Blanchard, Kara Takagi and Tamara
    Boro, for the respondent

Heard: June 17, 2021 by video conference

On appeal
    from the judgment of Justice Marc R. Labrosse of the Superior Court of Justice,
    dated February 19, 2021, with reasons reported at 2021 ONSC 1298.

L.B. Roberts J.A.:

A.

Overview

[1]

This appeal involves the application of the rule
    against perpetuities. At its core, this appeal turns on whether the contractual
    terms in issue create an interest in land or a mere contractual right to
    acquire property.

[2]

The rule against perpetuities is not
    controversial. Of ancient origin, the rule arises out of the public policy
    against the fettering of real property with future interests dependent upon
    unduly remote contingencies. It applies to extinguish an interest in land if the
    interest does not vest within 21 years. The rule does not apply to a
    contractual right that does not create an interest in land. It serves only to
    invalidate contingent interests in land that vest too remotely. See:
Canadian
    Long Island Petroleums Ltd. et al. v. Irving Industries Ltd.
, [1975] 2
    S.C.R. 715, at pp. 726-27, 732-33;
2123201 Ontario Inc. v. Israel
    Estate
, 2016 ONCA 409, 130 O.R. (3d) 641 at para. 20;
London and South
    Western Railway Co. v. Gomm
(1882), 20 CH. D. 562 (C.A.), at pp. 580-82.

[3]

In January 1997, the appellant, ClubLink
    Corporation ULC (ClubLink), acquired property subject to various historical land
    development agreements affecting its use, which were made in 1981, 1985, and
    1988 between Campeau Corporation (Campeau) and the former City of Kanata
    (Kanata) (the Agreements). ClubLink assumed the former owners rights and
    obligations under the Agreements (the Assumption Agreement). In issue are the
    provisions contained in ss. 5(4) and 9 of the agreement entered into on May 26,
    1981 (the 1981 Agreement) that: Campeau, or its successors and assigns, must
    operate a golf course on the property in perpetuity (the golf course lands),
    failing which, the golf course lands are to be conveyed at no cost to Kanata,
    now part of the respondent, the City of Ottawa (the City); and, if the golf
    course lands are conveyed, the City is obliged to continue using the golf
    course lands for recreation or natural environmental purposes, failing which,
    they are to be reconveyed to Campeau.

[4]

ClubLink has operated the golf course for over
    24 years. Due to declining membership, ClubLink started exploring the
    possibility of developing the golf course lands for residential and open space
    purposes. To that end, in October 2019, ClubLink submitted planning
    applications for a zoning by-law amendment and approval of a plan of
    subdivision and publicly accessible green space on the golf course lands.

[5]

The City brought an application for an order requiring
    ClubLink to withdraw its applications; alternatively, it claimed that ClubLinks
    applications triggered its right to demand conveyance of the golf course lands
    and it sought conveyance of the golf course lands to the City at no cost. The
    City requested a declaration that ClubLinks obligations remain valid and
    enforceable. It also sought a declaration that if the golf course lands were
    conveyed to the City, the City would not be required to reconvey the golf
    course lands if it ceased to operate them as a golf course, so long as it used
    the golf course lands for recreation and natural environmental purposes.

[6]

ClubLink resisted the Citys application because
    the Citys right to call on a conveyance had not vested within the 21 years
    following the 1981 Agreement. Therefore, ClubLink argues, the provisions
    requiring the operation of a golf course in perpetuity are void as contrary to
    the rule against perpetuities.

[7]

The application judge interpreted the 1981 Agreement
    and allowed the Citys application in part. Importantly, he determined that the
    parties did not intend to create an interest in land because they never
    intended for the conveyances to materialize. He declared that the 1981 Agreement
    continues to be a valid and binding contract and that ClubLinks obligations
    remain enforceable. ClubLink is therefore required to operate the golf course
    in perpetuity or convey the golf course lands to the City if it ceases to do so.
    However, he declared that in the event the golf course lands were conveyed to
    the City, the City is not required to operate the golf course in perpetuity so
    long as it uses the lands for recreation and natural environmental purposes. The
    application judge dismissed the Citys application for an order requiring ClubLink
    to withdraw its zoning bylaw amendment and plan of subdivision applications or alternatively
    to offer to convey the golf course lands to the City at no cost.

Issues and the Parties
Positions

[8]

ClubLink submits that the application judge made
    several reversible errors. In my view, ClubLinks first argument that the
    application judge erred in finding that ss. 5(4) and 9 of the 1981 Agreement
    are not void for perpetuities disposes of the appeal. It is therefore not
    necessary to consider the other issues.

[9]

ClubLink submits that in determining whether
    the parties to the 1981 Agreement intended to create a contingent interest in
    land, the application judge made extricable errors of law. It argues the application
    judge erred in three principal ways. First, he did not correctly consider the parties
    intentions as set out in ss. 5(4) and 9 of the 1981 Agreement. Second, he did not
    interpret the 1981 Agreement in light of the agreement dated December 20, 1988
    (the December 20, 1988 Agreement), which expressly states that the 1981
    Agreement runs with the land. Third, he did not apply binding jurisprudence
    that suggests control over exercise of the option and the expectation that the
    contingent interest holder will acquire the land are not determinative of
    whether the parties intended to create an interest in land.

[10]

The City submits that the application judge made no
    reversible errors in his analysis: he properly focused on the parties
    intentions, considering control over the conveyance as only one factor, and correctly
    determined that the intent of the 1981 Agreement was to ensure that 40% of the
    parcel of land that the original owner wished to develop would be set aside in
    perpetuity as open space for recreation and natural environmental purposes
    (the 40% principle). Further, while he referred to subsequent agreements, he
    correctly identified the limits of using post-contractual conduct in
    contractual interpretation. As a result, the City argues, the application judge
    correctly found ss. 5(4) and 9 serve as mere contractual mechanisms for
    safeguarding the 40% principle and do not create interests in land.

[11]

For the reasons that follow, I agree with ClubLink that the
    application judge erred in his analysis of ss. 5(4) and 9 of the 1981
    Agreement. Specifically, the application judge erred in his determination that because
    the parties never intended the rights to the conveyances to crystallize,
    there was no intention to create an interest in land. In my view, when the
    correct legal principles are applied, in the context of all the Agreements, the
    plain language of ss. 5(4) and 9 creates a contingent interest in land. Sections
    5(4) and 9 are therefore void and unenforceable as being contrary to the rule
    against perpetuities because the Citys right to call upon a conveyance of the golf
    course lands did not vest during the perpetuity period. I would therefore allow
    the appeal.

B.

Analysis

[12]

This case is about contractual interpretation and the
    application of the rule against perpetuities. As such, the application judge
    was required to consider the factual matrix to deepen [his] understanding of
    the mutual and objective intentions of the parties as expressed in the words of
    the contract:
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
    53, [2014] 2 S.C.R. 633, at para. 57.

[13]

Accordingly, I start my review of the application judges
    decision with a summary of the factual matrix that the application judge
    considered and that is not in dispute. I shall then analyze the application
    judges decision in light of the determinative issues on this appeal.

(i)

The Agreements and
Factual
Matrix

[14]

In 1981, Campeau applied to the then Regional Municipality
    of Ottawa-Carleton (the Region) to amend its Official Plan to permit the
    development of a property described as the Marchwood Lakeside Community in
    Kanata. Campeau proposed to designate approximately 40% of the development area
    as recreation and open space.

[15]

To that end, Campeau and Kanata entered into the 1981
    Agreement, which was registered on title to the property under development. The
    key provisions respecting the uses that can be made of the property for the
    purpose of this appeal are contained in ss. 3, 5, and 9.

[16]

Section 3 sets out the provisions enshrining the 40% principle
    and the particular uses that can be made of the open space areas, as follows:

3. Campeau hereby confirms the principle stated in its proposal
    that approximately
forty (40%) percent
    of the total development area of the Marchwood Lakeside Community shall be
    left as open space for recreation and natural environmental purposes
which areas consist of the following:

(a)
the proposed 18-hole
    golf course

(b) the storm water management area

(c) the natural environmental areas

(d) lands to be dedicated for park purposes.

[Emphasis added.]

[17]

Under the title, Methods of Protection, s. 5 prescribes
    the use in perpetuity of the land to be provided for the golf course:

5. (1) Campeau covenants and agrees that
the land to be provided for the golf course
shall be
    determined in a manner mutually satisfactory to the parties and subject to sub-paragraphs
    2 and 3
shall be operated by Campeau as
    a golf course in perpetuity
provided that Campeau shall at all
    times be permitted to assign the management of the golf course without prior
    approval of Kanata.

(2) Notwithstanding sub-paragraph (1),
Campeau may sell the golf course
(including lands and buildings)
provided the new owners enter into an
    agreement with Kanata providing for the operation of the golf course in
    perpetuity
,
upon the
    same terms and conditions as contained herein
.

(3)
In the event Campeau
    has received an offer for sale of the golf course it shall give Kanata the
    right of first refusal
on the same terms and conditions as the
    offer for a period of twenty-one (21) days.

(4)
In the event that
    Campeau desires to discontinue the operation of the golf course and it can find
    no other persons to acquire or operate it, then it shall convey the golf course
(including lands and buildings)
to Kanata at no cost
and
if Kanata accepts the conveyance, Kanata shall operate or cause to
    be operated the land as a golf course subject to the provisions of paragraph 9
.

(5) In the event Kanata will not accept the conveyance of the
    golf course as provided for in sub-paragraph (4) above then Campeau shall have
    the right to apply for development of the golf course lands in accordance with
    The Planning Act, notwithstanding anything to the contrary contained in this
    agreement.

[Emphasis added.]

[18]

Section 9 provides for the circumstances under which Kanata
    would be required to reconvey the land to Campeau at no cost:

9.
In the event that any
    of the land set aside for open space for recreation and natural environmental
    purposes ceases to be used for recreation and natural environmental purposes by
    Kanata then the owner of the land, if it is Kanata, shall reconvey it to
    Campeau at no cost
unless the land was conveyed to Kanata as in
    accordance with Section 33(5)(a) or 35b [
sic
]
    of The Planning Act. [Emphasis added.]

[19]

Sections 4 and 10 expressly contemplate that further
    agreements concerning specific open space areas may be required to designate
    the golf course lands and to implement the agreed upon 40% principle.

[20]

Section 12 stipulates that the 1981 Agreement shall be
    registered against the lands.

[21]

By agreements dated June 10, 1985 and December 29, 1988,
    both of which were registered on title, Campeau and Kanata defined the
    improvements and, in particular, the size, precise location, and required
    safety measures for the golf course. Both agreements contain provisions providing
    that the agreement shall extend to, be binding upon and enure to the benefit of
    Campeau and Kanata and their successors and assigns.

[22]

Finally, in the December 20, 1988 Agreement, which was
    registered on title, Campeau and Kanata amended the 1981 Agreement to provide
    that the 1981 and December 20, 1988 Agreements would apply only to the Current
    Lands as designated in the Schedules to the December 20, 1988 Agreement,
    including the golf course lands.

[23]

Section 7 of the December
    20, 1988 Agreement stipulates that the 1981 and 1988 Agreements
shall enure to the benefit of and be
    binding upon the respective successors and assigns of Campeau and the City
and
shall run with and bind the Current Lands
for the benefit of the Kanata Marchwood
    Lakeside Community (emphasis added).

[24]

On March 30, 1989, Campeau transferred the land to Genstar
    Development Company Eastern Ltd. (Genstar). Genstar assumed all of Campeaus
    rights and obligations under the Agreements.

[25]

Genstar, which later amalgamated with Imasco Enterprises
    Inc., and ClubLink entered into an asset purchase agreement dated August 6,
    1996 by which, among other things, ClubLink agreed to purchase the golf course
    lands. On January 8, 1997, Imasco transferred the property to ClubLink.

[26]

Under s. 3 of the Assumption Agreement, dated November 1,
    1996, ClubLink agreed that all of its predecessors assumed liabilities and
    obligations under the Agreements would apply to and bind [ClubLink] in the
    same manner and to the same effect as if [ClubLink] had executed the same in
    the place and stead of Campeau or Imasco.

[27]

Section 11 of the Assumption Agreement stipulates as
    follows:

The parties to this Agreement acknowledge and agree that
nothing in this Agreement alters the manner in
    which approximately 40% of the total development area of the Marchwood
    Lakeside Community is to be left as open space for recreation and natural
    environmental purposes (the Open Space Lands) as referred to in Section 3 of
    the 1981 Agreement
, so that the calculation of the Open Space Lands
    will continue to include the area of the Golf Course Lands including, without limitation,
    any area occupied by any building or other facility ancillary to the golf
    course and country club located now or in the future on the Golf Course Lands.
    If the use of the Golf Course Lands as a golf course or otherwise as Open Space
    Lands is, with the agreement of the City, terminated, then for determining the
    above 40% requirement, the Golf Course Lands shall be deemed to be and remain
    Open Space Lands. [Emphasis added.]

[28]

On January 1, 2001, by operation of the
City of Ottawa
    Act, 1999
, S.O. 1999, c. 14, Sched. E, twelve municipalities, including
    Kanata and the Region, were dissolved and the City of Ottawa was constituted.
    As a result, the City stands in the place of Kanata. All of Kanatas assets and
    liabilities, including all rights, interests, entitlements, and contractual
    benefits and obligations under the Agreements and the Assumption Agreement,
    became the assets and liabilities of the City:
City of Ottawa Act
, s.
    5(3)(b).

(ii)

Interpretation of the 1981
Agreement

Standard of Review

[29]

It is common ground that the application judges interpretation
    of the Agreements attracts a deferential standard of appellate review:
Sattva,
at paras
.
50-52
. Contractual interpretation
    is a question of mixed fact and law requiring the
application
of principles of contractual interpretation to the words of a contract and its
    factual matrix:
Sattva
, at para. 50. Absent an extricable question of
    law, which courts should be cautious in identifying, or palpable and overriding
    error, appellate intervention is not warranted:
Sattva
, at paras.
    53-54.

[30]

An extricable question of law includes a legal error made
    in the course of contractual interpretation such as the application of an
    incorrect principle, the failure to consider a required element of a legal
    test, or the failure to consider a relevant factor:
Sattva
, at para.
    53.

[31]

Respectfully, I am of the view that the application judge made
    an extricable error of law in his interpretation of ss. 5(4) and 9 of the 1981
    Agreement. As I shall explain, it was an extricable error of law to conclude that
    contracting parties must intend a contingent interest in land to materialize in
    order to create a contingent interest in land.

The Application Judges Interpretation of
    the 1981 Agreement

[32]

According to the application judge, ss. 5(4) and 9 were
    intended only as off ramps that served as safeguards which preserve the true
    intent of maintaining the 40% principle. The true intent of the 1981
    Agreement, according to the application judge, does not involve Kanata ever
    becoming the owner of the Golf Course (lands and buildings). The application
    judge explained that, as the parties never expected, nor intended for, the
    interest in land to crystallize, they had no intention to create an interest
    in land. Sections 5(4) and 9 were mere contractual provisions. The application
    judge summarized his conclusions at para. 104 of his reasons, as follows:

Section 5(4) was
    not intended to allow for Kanata to eventually own and operate the Golf Course.
    This section created nothing more than an

off-ramp
    to ensure

that the true
    intention of the 1981 Agreement

to
    maintain 40% open space within the Campeau Lands through the use of a golf
    course

was carried out;

Section 9 also was
    not intended to create an interest for Campeau to regain possession of the
    lands no longer used for open space. The intent is to provide an alternative
    should Kanata no longer use the land for open space. It is to allow for an
    alternate use of the land should Kanata change the anticipated use.

Both ss. 5(4) and 9
    create contractual rights that may or may never crystallize. The question is
    not
when

the
    ownership changes but
if

the
    ownership changes;

Support for this
    conclusion is also found in (a) the absence of any control given to Kanata to
    trigger the conveyance of the Golf Course Lands, and (b) the absence of any
    control to Campeau to trigger the reconveyance of open space lands.

[Emphasis in original.]

[33]

Respectfully, the application judge erred in using the
    expectation that a contingency would materialize as a factor to distinguish
    between an intent to create an interest in land and a contractual right. As
    earlier noted, the rule against perpetuities applies only to
contingent
interests in land that vest too remotely. Whether the
contingent
interest in ss. 5(4) and 9 was intended to materialize is not the question; it
    is the nature of all contingent interests that they may never materialize. Moreover,
    the lack of control over the triggering of the conveyances does no more here
    than emphasize the contingent nature of the interests in issue.

[34]

The governing case law establishes that a contingent
    interest in land can be created without the intention that it will one day
    crystallize and that control over the triggering event is not determinative.

[35]

In
City of Halifax v. Vaughan Construction Company Ltd.
    and the Queen
, [1961] S.C.R. 715,
Weinblatt v. Kitchener (City)
, [1969]
    S.C.R. 157,
[1]
and
Jain v. Nepean (City)
(1992), 9 O.R. (3d) 11 (C.A.), leave to appeal
    refused, [1992] S.C.C.A. No. 473
, three decisions that are
    factually similar to the present case, the courts found an interest in land
    even though there was no expectation that the interest would crystallize. Like
    here, the contractual provisions in issue allowed the municipalities to control
    development and were not intended to ensure the land would one day be conveyed
    to the municipalities. In all three cases, the conveyance of the properties to
    the municipalities was contingent on the owners failing to fulfil their core
    contractual obligations. As here, the owners default, which triggered the
    right to conveyance, was not in the interest holders control. While the rule
    against perpetuities was not found to be infringed in these cases, they
    establish that an expectation that the interest will crystallize is not
    required to create an interest in land.

[36]

In
Halifax
, the Supreme
    Court interpreted an agreement between the City of Halifax and the Maritime
    Telegraph and Telephone Company. The latter made certain covenants, which were
    later assumed by Vaughan Construction Company Limited upon purchasing the
    property, to either build within a reasonable time or reconvey the property for
    a specific sum if it decided not to build. The deed provided that the covenant
    would run with the lands until the construction of the building. The court
    affirmed that the City of Halifax held an equitable interest even though it was
    not the holder of an option that it could exercise at any time. Importantly,
    the court held that Vaughan had no uncontrolled right to determine whether it
    would reconvey; unless it complied with the building covenants within a
    reasonable time, the City of Halifax could have enforced a reconveyance. Therefore,
    the City of Halifax had an interest in the land because the construction
    company could not prevent the exercise of the City of Halifaxs right under the
    covenant by doing nothing; they had to build the building or reconvey the
    property.

[37]

Similarly, in
Weinblatt
, the parties entered into
    an agreement that provided for the reconveyance of property to the City of
    Kitchener for the purchase price if the purchaser failed to commence
    construction of a seven-story building within a specified period. The builder
    applied to construct a two-story building instead but was refused. Weinblatt
    then purchased the property from the builder but his proposal to erect a building
    was also not in conformity with the agreement and was likewise rejected. The
    City of Kitcheners claim for reconveyance of the property was successful. The court
    held that the City of Kitchener had a contingent interest in property that ran
    with the land because the covenant provided that Weinblatt had to meet the
    building conditions under the agreement or reconvey the property.

[38]

Finally, this courts decision in
Jain
is apposite.
    In issue was the interpretation of a contract that contained a condition, which
    was included in the deed, designed to ensure development: the City of Nepean
    would be entitled to repurchase the property for a particular amount if Jain
    did not start constructing a building of a specific size within 12 months of
    registration of the transfer. The court found the City of Nepean had an
    equitable interest in the land that always existed even though the right of reconveyance
    was contingent on the default of the development conditions. In this case, the
    mortgagee took its interest with notice of the Citys equitable interest in the
    property.

[39]

The application judge adverted to
Halifax
,
Weinblatt
, and
Jain
in his review of relevant case law
    but only as examples of [t]he more traditional circumstances where a right to
    repurchase has been found to create a contingent interest in land. These
    decisions, in which the circumstances are almost identical to those of the
    present case, found an interest in land arose notwithstanding the absence of an
    expectation that the right to the reconveyance would crystallize and the lack
    of the municipalities control over triggering the reconveyance. The trial
    judges conclusion that there was no contingent interest in land because there
    was no expectation the right to the reconveyance would crystallize constitutes
    an error of law:
Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc.
,
    2016 ONCA 246, 130 O.R. (3d) 418, at para. 41, affd 2017 ONCA 293, 135 O.R.
    (3d) 241, leave to appeal to refused, [2016] S.C.C.A. No. 249.

[40]

The City submits that
Halifax
,
Weinblatt
,
and
Jain
are distinguishable
    from the present appeal because all three cases involve provisions for a
re
-
conveyance of property to the
    original vendor. The argument follows that since Kanata never owned the golf
    course lands, this is not the case of a landowner who is controlling the use of
    their land after they have sold it. I disagree that this factual difference
    distinguishes these cases. Whether the municipalities were the original vendors
    does not change the nature of the right: the municipalities were able to
    control development of the land through a covenant that ran with the land. The
    contingent interest fettered the land by controlling development, regardless of
    whether the interest holder was a former owner.

[41]

The application judge applied the Superior Court decision
    in
Loyalist (Township) v. The Fairfield-Gutzeit Society
, 2019 ONSC
    2203,

relied on by the City,
for the proposition
that no interest in
    land arises where there is no expectation that the right to repurchase will
    crystallize. He determined that the court in
Loyalist (Township)
used
    this factor to distinguish this courts decision in
2123201
,
put
    forward by ClubLink. In
2123201
, this court concluded that an option
    to repurchase was an equitable interest in land; the court in
Loyalist
    (Township)
characterized the right to repurchase as a contractual right.
    The application judge explained at para. 72 of his reasons that in
2123201
,
    there was an expectation that the option to repurchase would crystallize at
    some point (i.e., once the gravel was removed); whereas, in
Loyalist
    (Township)
, there was no such expectation: the right to repurchase arose
    only if the Society wished to dispose of its interest to an organization that
    had different objectives from those of the Society  [t]hus, there was no
    expectation that the right to repurchase would crystallize. As a result, the
    application judge reasoned that the 1981 Agreement was similar to the agreement
    in
Loyalist (Township)
and distinguishable from the agreement in
2123201
because Kanata did not expect its right to call for a conveyance of the golf
    course lands would crystallize.

[42]

As I earlier explained, a contingent interest in land may
    never materialize. Moreover, I do not read
Loyalist (Township)
as
    standing for the proposition relied upon by the application judge: the
    expectation that a contingent interest would materialize was simply [a] distinguishing
    feature noted by the court in
Loyalist (Township)
between that case
    and
2123201
, and not a determining factor in the courts analysis: at
    para. 35. Notably, the court in
Loyalist (Township)
made no reference
    to
Halifax
,
Weinblatt
, and
Jain
. Moreover, the
    courts determination in
Loyalist (Township)
that the right in
    question was a contractual right and not an interest in land flowed from the
    courts conclusion that the agreement creating the right did not purport to
    impose rights that would attach to the land: at para. 36.

[43]

The courts reasoning in
Loyalist (Township)
reflects the well-established distinction that a contingent interest in land
    differs from a mere contractual right insofar as the agreement giving rise to
    the rights purports to attach the rights to the land, such as the right to call
    for a conveyance, which affect the landowners rights to freely use, manage,
    develop or dispose of its property:
Gomm
, at pp. 580-82;
Loyalist
    (Township)
, at para. 36.;
Manchester Ship Canada Company v. Manchester
    Racecourse Company
, [1901] 2 Ch. 37 (C.A.), at pp. 50-51.

[44]

A return to the public policy underpinning the rule against
    perpetuities further assists in distinguishing between a contingent interest in
    land and a mere contractual interest. The public policy attempts to prevent
    the grasp of the dead hand to be kept on the hand of the living in the form
    of restrictions on the subsequent landowners ability to use or dispose of its
    property that run with the land: Thomas Edward Scrutton,
Land in Fetters
,
    (Cambridge: Cambridge University Press, 1896), at p. 108;
Canadian Long
    Island Petroleums,
at pp. 726-27. As stated in
Weber v. Texas Co.
,
    83 F.2d 807 (5th Cir. 1936), at p. 808, and affirmed by the Supreme Court in
Canadian
    Long Island Petroleums
, at p. 732:

The rule against perpetuities springs from
    considerations of public policy. The underlying reason for and purpose of the
    rule is to avoid fettering real property with future interests dependent upon
    contingencies unduly remote which isolate the property and exclude it from
    commerce and development for long periods of time, thus working an indirect
    restraint upon alienation, which is regarded at common law as a public evil.

[45]

In consequence, a contingent interest in land fetters
    real property, excluding it from commerce and development and working an
    indirect restraint upon alienation. It is this public evil that the rule
    against perpetuities targets by imposing a 21-year limitation. A mere
    contractual right is within neither the purpose of nor the reason for the
    rule because it does not forestall or restrain free alienation and is
    therefore not objectionable:
Weber
,
at p. 808;
Canadian Long Island Petroleums
, at pp. 732-733.

[46]

As there were extricable errors of law in the application
    judges construction of the contractual provisions of the 1981 Agreement, his
    decision is not entitled to deference and must be set aside:
Sattva
, at para. 53
.

[47]

I shall now consider afresh the contractual provisions in
    issue.

The parties intended to create contingent
    interests in land

[48]

As I shall explain, I am of the view that the parties
    intended by ss. 5(4) and 9 of the 1981 Agreement to create contingent interests
    in the golf course lands.

[49]

The dispute centres on the characterization of the
    provisions for the conveyance of the property, ss. 5(4) and 9, either as creating
    contingent interests in land or contractual rights. It is common ground that if
    the conveyance provisions create an interest in land, the rule against
    perpetuities applies and the provisions are void because the conveyance did not
    occur within the 21-year perpetuity period. Alternatively, if they give rise to
    a contractual right, the rule against perpetuities does not apply and, subject
    to the other issues raised on this appeal, the provisions remain valid and
    enforceable.

[50]

Contractual provisions do not always fit neatly within the
    common dichotomy, which is found in many of the perpetuity cases, of an option
    to purchase that creates a contingent interest in land and a right of first
    refusal that does not. Accordingly, the fact that the language in s. 5(4) (or
    s. 9) of the 1981 Agreement may not be typical of the language used to define
    an option to purchase, as the application judge noted, is not determinative.

[51]

This classification difficulty was recognized in
2123201
.
    Rather than attempting to impose a rigid classification scheme, this court
    clarified in
2123201
, at paras. 38 to 41, that the issue is one of basic
    contract interpretation to determine the true intent of the parties at the time
    the agreement is made. As such, the analysis should focus on whether the
    parties intended to create an interest in land or a mere contractual right. The
    indicia of that intention include the purpose and terms of the agreement and
    the context in which it was made:
2123201
, at paras. 38-43.

[52]

As the application judge rightly stated, the basic rules of
    contract interpretation require the determination of the intention of the
    parties in accordance with the ordinary and grammatical words they have used,
    in the context of the entire agreement and the factual matrix known to the
    parties at the time of the formation of the contract, and in a fashion that corresponds
    with sound commercial principles and good business sense:
Weyerhaeuser
    Company Limited v. Ontario (Attorney General)
, 2017 ONCA 1007, 77 B.L.R.
    (5th) 175, at para. 65, revd on other grounds,
Resolute FP Canada Inc. v. Ontario
    (Attorney General)
, 2019 SCC 60, 444 D.L.R. (4th) 77.

[53]

Here, to ascertain the parties intentions, it is necessary
    to read all the Agreements. The City submits that the December 20, 1988
    Agreement was concluded at a different time and for a different purpose.
    However, the subsequent agreements were expressly contemplated in the 1981
    Agreement and the four agreements, read together, give effect to the parties
    intentions. Moreover, ClubLink assumed the rights and obligations of its
    predecessors not simply under the 1981 Agreement but under all the Agreements.

[54]

As a result, the related contracts principle is also
    engaged in the interpretative process here. Under the related contracts
    principle, where more than one contract is entered into as part of an overall
    transaction, the contracts must be read in light of each other to achieve
    interpretive accuracy and give effect to the parties intentions:
3869130 Canada
    Inc. v. I.C.B. Distribution Inc.
, 2008 ONCA 396, 239 O.A.C. 137, at paras.
    33-34;
Salah v. Timothys Coffees of the World Inc.
, 2010 ONCA 673,
    268 O.A.C. 279, at para. 16;
Fuller v. Aphria Inc.
,

2020 ONCA 403, 4 B.L.R. (6th) 161
, at para. 41, 51;
Catalyst
    Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership
, 2020
    ONCA 272, 150 O.R. (3d) 449, at para. 50.

[55]

I start with the overall purpose and nature of the
    Agreements.

[56]

The Agreements formed a development contract that allowed
    Campeau to develop its own land but subject to certain limits to further the
    Citys public policies, most notably, the 40% principle.

[57]

There is no question that the 40% principle was an
    important contractual feature that allowed Campeau to advance the development
    of property and further the Citys public policies. The City wanted to ensure
    that 40% of the property to be developed would remain as open space to be used
    in certain ways. One of the ways was the operation in perpetuity of a golf
    course. That said, the 40% principle, by itself, does not determine the issue
    of whether the parties intended to give Kanata (and its successors and assigns)
    an interest in land or a contractual right to protect the 40% principle.

[58]

In my opinion, when the Agreements are read and interpreted
    as a whole, and in the context of the factual matrix, the provisions in ss.
    5(4) and 9 were intended to restrict or fetter the use that could be made of
    40% of the property in order to further the Citys open space development
    policy. As such, I see the rights created by the Agreements as
    indistinguishable in substance and effect from the contingent property interests
    created in
Halifax
,
Weinblatt
,

and
Jain
, earlier reviewed, where
    restrictions were used to control development.

[59]

In
Halifax
,
Weinblatt
, and
Jain
,
the municipal right holder did not hold
    an option that it could exercise at any time and the right to the conveyance
    only arose if the landowner did not develop or use the lands according to the
    agreements. Once the triggering event occurred, for example development did not
    commence within the agreed upon time, the landowners were obligated to reconvey
    the properties to the holder of the right. The juridical nature of this right
    of conveyance was determined to be an interest in land.

[60]

The rights in issue in the present case are
    indistinguishable. As in
Halifax
,
Weinblatt
, and
Jain
,
    the Agreements here impose rights that expressly run with the land and were
    registered on title. The conveyance to the City would occur only if and when
    Campeau or its successors and assigns ceased to use the land as a golf course
    and could not find someone to take over its operation. Other than determining
    whether to use the land as a golf course, Campeau had no discretion over the
    conveyance. If it chose to stop using it as a golf course and could not find
    someone to continue this use, then it had to convey the property to the City.
    The automatic transfer of ownership triggered by the contingency of a future
    event creates a contingent property interest.

[61]

The conveyance provisions under ss. 5(4) and 9 of the 1981
    Agreement fall squarely within the public policy purpose of the rule against
    perpetuities, namely, to prevent contingent property interests from vesting too
    remotely. The conveyance provisions purport to control in perpetuity the use
    that can be made of the golf course lands: if the owner ceases to use the golf
    course lands as a golf course, the lands will be conveyed to the City.

[62]

The parties intention to create an interest in land also manifests
    in the plain and explicit language of the Agreements. According to the
    cardinal presumption of contract interpretation, the parties intended what
    they wrote:
Weyerhaeuser
, at para. 65. For example:

i. The 1981 Agreement uses clear conveyance
    language with respect to the contingent interests created under s. 5(4)
    (convey and conveyance) and s. 9 (reconvey and conveyed). I contrast
    this conveyance language with the contractual right of first refusal that
    appears in s. 5(3).

ii. Section 12 of the 1981 Agreement
    stipulates that the Agreement shall be registered on the title to the entire
    property, including the golf course lands. All four Agreements were registered
    on the title to the property.

iii. Section 7 of the December 20, 1988
    Agreement expressly states that the 1981 and 1988 Agreements shall enure to
    the benefit of and be binding upon the respective successors and assigns of
    Campeau and the City and
shall run with and bind the
    Current Lands
for the benefit of the Kanata Marchwood Lakeside
    Community (emphasis added).

[63]

While each of these examples taken in isolation may not be
    determinative, I view them, together with the factors that I have just
    reviewed, as demonstrating the parties intention to create contingent
    interests in land. Similarly, I read the requirement under s. 5(2) that
    subsequent owners must contractually assume the obligations under the
    Agreements, as simply a mechanism to ensure compliance. It does not, by itself,
    derogate from the parties intention to create contingent interests in land as
    provided for in ss. 5(4) and 9 of the 1981 Agreement.

[64]

In summary, the parties intended by the clear language and
    purpose of their Agreements to create contingent interests in the golf course
    lands under ss. 5(4) and 9 of the 1981 Agreement that ran with and fettered the
    land: under s. 5(4) of the 1981 Agreement, the Citys interest in the golf
    course lands was contingent on Campeau (or its successor or assign in title)
    ceasing to operate the golf course; and under s. 9, the reconveyance was
    contingent on, first, the conveyance under s. 5(4), and, second, the City
    ceasing to use the lands as prescribed.

[65]

The owners have operated the golf course for more than 21
    years. Neither the Citys right to a conveyance nor ClubLinks right to a
    reconveyance have vested within the perpetuity period. As a result, these
    contingent interests in the golf course lands are now void.

Is all or part of the 1981
Agreement
void?

[66]

ClubLink renews here the argument that if the rule against
    perpetuities applies, then ss. 5(4) and 9 cannot be severed from the 1981
    Agreement and all or part of the 1981 Agreement fails. As noted in para. 146 of
    his reasons, the application judge did not consider this issue given his
    conclusion that the 1981 Agreement continues to be valid and enforceable.

[67]

ClubLink argues that ss. 5(4) and 9 are integral to the
    1981 Agreement and that severing ss. 5(4) and 9 from the balance of the contract
    fundamentally changes the 1981 Agreement with the result that ClubLink would be
    saddled with a perpetual obligation to run a golf course (or find a buyer
    willing to do the same) with no escape mechanism. According to ClubLink, there
    is no evidence the parties would have agreed to this bargain. ClubLink submits
    that severance is therefore inappropriate and, as a result, the appropriate
    remedy is to void the 1981 Agreement in whole, or, alternatively, all the
    provisions related to the golf course lands.

[68]

In my view, this court is not in a position to consider
    ClubLinks argument.

[69]

First, ClubLink did not identify which provisions of the
    1981 Agreement are so interrelated to ss. 5(4) and 9 and the void contingent
    interests in land that they must necessarily be inoperative. Further, there is
    no basis to void myriad other provisions in the 1981 Agreement that are
    unrelated to the golf course and that have already been performed.

[70]

Moreover, the focus of the submissions before this court
    was on the validity and enforceability of ss. 5(4) and 9 of the 1981 Agreement.
    We do not have the benefit of the application judges findings on the larger
    question raised by ClubLink. And, in my opinion, the determination that ss.
    5(4) and 9 of the 1981 Agreement are void and unenforceable may affect provisions
    of not simply the 1981 Agreement but also the 1985 and 1988 Agreements, as well
    as the Assumption Agreement. In my view, if the parties cannot agree, this
    larger question should be remitted to the application judge for determination.

Disposition

[71]

Accordingly, I would allow the appeal. Sections 5(4) and 9 of
    the 1981 Agreement are void and unenforceable.

[72]

By letter dated June 22, 2021, the parties advised of their
    agreement that the successful party is entitled to costs of the appeal in the
    amount of $59,000, all inclusive. Accordingly, I would award costs of the
    appeal to ClubLink in this amount.

[73]

If the parties cannot agree on the disposition of costs for
    the application below, I would allow them to make brief written submissions of
    no more than two pages, plus a costs outline, within five days of the release
    of these reasons.

Released: R.G.J. NOV 26, 2021

L.B.
    Roberts J.A.

I
    agree. R.G. Juriansz J.A.

I
    agree. M. Tulloch J.A.

[1]

Some have argued that there are inconsistencies between
Canadian Long Island Petroleums
,
Halifax
, and
Weinblatt
: Paul M. Perell, Options, Rights of Repurchase and Rights of First
    Refusal as Contracts and as Interest in Land (1991) 70:1
Can. Bar. Rev. 1
. However, this court in
Jain
largely resolved these issues and found that the holdings in
Halifax
and
Weinblatt
are still good law despite the reasoning in
Canadian Long Island Petroleums
:
see
Jain
, at p. 19.


COURT OF APPEAL FOR ONTARIO

CITATION:
1386444 Ontario Inc. v. 2331738 Ontario Ltd., 2021 ONCA 845

DATE: 20211123

DOCKET: C69166

Gillese, Trotter and Nordheimer
    JJ.A.

BETWEEN

1386444 Ontario Inc. and
    Surinder Singh Binepal

Applicants (Respondents)

and

2331738 Ontario Ltd. operating
    as Century Cabinet Doors Inc., Harpal Singh Bhambra, Amanpreet Kaur Bhamra, and
    Peel Condominium Corporation No. 473

Respondents (Appellants)

Ajay Duggal and Maneesh Mehta, for the
    appellants

James S. G. Macdonald and Melisa
    Rupoli, for the respondents

Heard: November 19, 2021

On appeal from the judgments of Justice
    Heather A. McGee of the Superior Court of Justice, dated October 21, 2020, and February
    22, 2021.

APPEAL BOOK ENDORSEMENT

[1]

The appellants seek to appeal two judgments made in this proceeding. The
    first judgment, dated October 21, 2020, declared that the Appellants operation
    of their cabinet door manufacturing business constituted a significant and
    unreasonable nuisance that interfered with the Respondents use and enjoyment
    of their condominium (the October 2020 Judgment). In the second judgment,
    dated February 22, 2021 (the February 2021 Judgment), the court granted a
    permanent injunction restraining the Appellants from operating any noise
    causing machinery in their condominiums between 9 a.m. and 5 p.m., Monday
    through Friday excluding statutory holidays.

[2]

This court does not have jurisdiction to hear that part of the appeal in
    which the Appellants challenge the October 2020 Judgment because of the
    Appellants prior actions in respect of that judgment. The Appellants filed an
    appeal of the October 2020 Judgment on November 2, 2020 (the First Appeal).
    The First Appeal was dismissed for delay by order of the Registrar of this
    court dated January 20th, 2021 (the Dismissal Order). At the oral hearing of
    this appeal, the Appellants advised that, in fact, they abandoned the First
    Appeal shortly before the Dismissal Order was made. Be that as it may, the
    Appellants First Appeal has been dismissed and, consequently, this court does
    not have jurisdiction to adjudicate upon it again. To permit the Appellants,
    without more, to challenge the October 2020 Judgment through this appeal would
    be an impermissible collateral attack on that judgment.

[3]

However, as the Appellants made clear at the oral hearing of this
    appeal, they wish to appeal both the October 2020 Judgment and the February
    2021 Judgment.

[4]

Assuming that the Appellants are correct in their submission that this
    court has the power to set aside the Dismissal Order and/or their earlier
    abandonment, the court declines to exercise that power. The
Rules of Civil Procedure

set out
    a process that is to be followed should a party wish to set aside a dismissal order.
    That process is designed to ensure fairness to both sides of this dispute.
    Further, such a process must be followed so that the court can fairly hear and
    decide whether to set aside the Dismissal Order.

[5]

Consequently, as we declared at the oral hearing of this appeal, this
    appeal is adjourned to a date to be fixed by the courts Appeal Scheduling Unit,
    such date to be no earlier than 60 days from the date of this endorsement. The
    60-day period gives the Appellants the opportunity to bring a motion to set
    aside the Dismissal Order, should they so decide. Regardless of whether the
    Appellants make such a motion and, if they do, regardless of whether they are
    successful on that motion, the appeal shall be rescheduled because that part of
    it which relates to the February 2021 Judgment remains to be decided.

[6]

Costs thrown away today are awarded to the Respondents, fixed at $1,600,
    all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Grand River Conservation Authority
    v. Geil, 2021 ONCA 861

DATE: 20211130

DOCKET: C69028

Benotto, Huscroft and Miller JJ.A.

BETWEEN

Grand
    River Conservation Authority

Applicant
(Respondent in Appeal)

and

Jason Geil & Geil Style
    Enterprises Inc.

Respondents
(Appellants)

Sean Biesbroek, for the appellants

Steven J. OMelia, for the respondent

Heard and released orally: November 29, 2021

On
    appeal from the order of Justice J.W. Sloan of the Superior Court of Appeal,
    dated December 16, 2020.

REASONS FOR DECISION

[1]

The appellant was found in contempt of a consent
    order that he and his agents refrain from dumping fill on wetlands controlled
    by the Grand River Conservation Authority.

[2]

He appeals the motions judges finding arguing
    that the motion judge erred by,

(i)

relying on hearsay in the supporting affidavits;

(ii)

making a finding of contempt without evidence as
    to when the fill arrived on the property; and

(iii)

relying on an affidavit that was filed after the time required by
    the Rules.

[3]

We see no merit to these submissions.

[4]

The appellant filed no material on the motion.
    The motion judge relied on firsthand evidence that the fill was placed on the
    property. The affidavit evidence established that the fill was deposited after
    the date of the court order. The precise date does not matter. The judge did
    not err by relying on the affidavit filed late because accepting it was within
    his discretion. The motion judge applied the correct test on a contempt motion,
    and it was open to him to conclude that the appellant was in contempt of the
    order. This finding is entitled to deference.

[5]

The appeal is dismissed with costs to the
    respondent in the amount of $20,000 plus HST.

M.L.
    Benotto J.A.

Grant
    Huscroft J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hamza v. Law Society of Ontario,
    2021 ONCA 852

DATE: 20211130

DOCKET: C69618

van Rensburg and Roberts JJ.A.
    and Tzimas J. (
ad hoc
)

BETWEEN

Oussama
    Hamza o/a Hamza Law

Applicant

(Appellant)

and

Law Society of Ontario,
    Ismail Aderonmu, Jessica Soubas, Yevgeniya Huggins,

and Vincent Rocheleau

Respondents

(Respondents on Appeal)

Oussama Hamza, acting in person

Katherine Hensel, for the respondent,
    Law Society of Ontario

Daniel Mayer, for the Ministry of the Attorney
    General

Heard: in writing November 26,
    2021

On
    motion under Rule 2.1 of the
Rules of Civil
    Procedure
for consideration of
    the appeal from the order of
Justice Thomas A. Heeney
    of the Superior Court of Justice, dated April 28, 2021.

REASONS FOR DECISION

[1]

The appellant is appealing an order dated April 28, 2021. This order,
    granted by Heeney J. (the motion judge), dismissed the appellants
    application seeking relief against the Law Society of Ontario (the LSO) and
    various individuals, some of whom, like the appellant, are lawyers and members
    of the Ontario bar.

[2]

The motion judge provided detailed reasons in which he outlined the
    appellants pleadings and explained their deficiencies. It is unnecessary to recite
    in any detail the appellants various allegations. It is sufficient to say that
    the motion judge, at para. 27 of his reasons, described the notice of
    application, affidavit and factum of the appellant as follows:

The Notice of Application, affidavit and Factum filed by the
    applicant together amount to over 1,000 pages of rambling, pseudo-intellectual
    attacks on the LSO and the other respondents, expressions of his opinion on
    their character and integrity, racist and misogynist attacks on the respondents
    and the judiciary, arguments that amount to little more than incomprehensible
    legal gibberish, and supposedly historical references to things such as
    genocide, colonization and slavery that can have no possible connection to what
    this case is, at its base, all about: his objection to the fact that the
    respondents made complaints to the LSO that he acted in a manner unbecoming of
    a member of the legal profession, and that the LSO had the audacity to
    investigate these complaints.

[3]

After providing examples from the appellants materials, the motion
    judge observed, at para. 30, that it was plain and obvious that the pleadings
    were scandalous, frivolous, or vexatious, and that the appellants attempt to
    use the application proceeding as a forum for his racist, misogynist and
    bizarre views was an abuse of the courts process.

[4]

The appellant commenced an appeal to this court. His notice of appeal
    names the motion judge as an additional respondent in the title of proceedings.
    The Attorney-General (which represents the judge as a named party to the
    appeal) asked this court to exercise its authority under r. 2.1 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194

to dismiss the appeal as a proceeding that is frivolous,
    vexatious or otherwise an abuse of the process of the court.

[5]

In accordance with the procedure prescribed by r. 2.1.01, the court
    invited written submissions, first from the appellant, and then from the respondents.
    The LSO responded on behalf of all respondents other than the motion judge,
    adding its own request that the court dismiss the appeal under r. 2.1, and
    setting out its submissions in a factum. The Attorney-General advised that he
    would be satisfied if the appellant removed the motion judge as a party to the
    appeal. The appellant has confirmed that the motion judge is not a party to the
    appeal, and he has prepared, but not yet formally filed, an amended notice of
    appeal.

[6]

The use of r. 2.1 is limited to the clearest of cases where the abusive
    nature of the proceeding is apparent on the face of the pleading and there is a
    basis in the pleadings to support the resort to the attenuated process:
Scaduto v. The Law Society of Upper Canada
, 2015 ONCA
    733, 343 O.A.C. 87, at para. 8. In determining whether an appeal should be
    dismissed summarily under r. 2.1, the court must determine whether on its
    face, and in light of any submissions, the proceeding is frivolous, vexatious
    or an abuse of process:
Scaduto
, at para. 11.

[7]

We have reviewed the appellants notice of appeal, which has been served
    and filed with this court, as well as the appeal book and factum he has been
    attempting to file. We have also considered the appellants email
    communications with the court staff and counsel for the respondents in relation
    to the appeal and the r. 2.1 motion. The notice of appeal and factum do not
    raise any issues or arguments with respect to the order under appeal that are
    relevant to any arguable ground of appeal. Instead, they continue to make racist
    and misogynistic statements and include personal attacks on the respondents, as
    well as the motion judge and the respondents legal counsel. The appellant did
    not provide any submissions seeking to explain or justify his approach to the
    litigation or the appeal.

[8]

We are satisfied that the appeal is frivolous, vexatious and an abuse of
    the process of the court. This is a clear case for the use of r. 2.1.
    Accordingly, the appeal is dismissed.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.

E.
    Ria Tzimas, J. (ad hoc)