COURT OF APPEAL FOR ONTARIO

CITATION:

General Electric Canada
    Company v. Aviva Canada, Inc.,
2012 ONCA 525

DATE: 20120802

DOCKET: C53139

Weiler, Armstrong and Rouleau JJ.A.

BETWEEN

General Electric Canada Company

Applicant (Appellant)

and

Aviva
    Canada, Inc. and The Dominion of Canada General
    Insurance Company

Respondents (Respondents)

Nina Bombier and Stephanie Couzin, for the appellant

Donald H. Rogers and David M. Rogers, for the respondent
    Aviva Canada, Inc.

John A. Campion and Rosalind H. Cooper, for the
    respondent The Dominion of Canada General Insurance Company

Heard: January 12, 2012

On appeal from the judgment of Justice Michael A. Penny of
    the Superior Court of Justice, dated January 4, 2011 with reasons reported at
    2010 ONSC 6806, [2011] O.J. No. 2198.

Armstrong
    J.A.:

introduction

[1]

General Electric Canada Company (GE) sought a declaration that its
    insurers had a duty to defend GE in respect of a request by the Ontario
    Ministry of the Environment (MOE) to provide certain information relating to
    the contamination of groundwater near an industrial property once owned by GE.
    It was GEs position that the costs associated with its response to the MOE
    were defence costs which were fully funded under its relevant insurance
    policies with the respondents.  Justice Penny of the Superior Court of Justice
    dismissed the application for the declaration and GE now appeals to this court.
    The application judge granted an order declaring that the respondents have a
    duty to investigate and defend GE in an action brought by the Toronto Transit
    Commission (TTC).  That order is not in issue in this appeal.

[2]

For the reasons that follow, I would dismiss the appeal.

THE FACTS

[3]

The property in issue is located in Toronto and was known as the Ward
    Street site although its municipal address is apparently 224 Wallace Street.
    GE owned the property from 1903 to 1980.  During this period, it carried on a
    manufacturing operation from which it produced a wide variety of products.
    During at least some of this period of time, it used the chemical
    trichloroethylene (TCE) as a degreasing agent.  The record does not disclose
    when the use of TCE began or terminated.

[4]

On February 11, 2004, the MOE wrote to GE and three other former owners
    of the property advising that it was reviewing potential TCE contamination of
    the groundwater within a two block area, which included the Ward Street site.
    The February letter requested the assistance and co-operation of GE and the
    other recipients of the letter asking them to provide any environmental
    assessments that they had in their possession.

[5]

On April 16, 2004, the MOE sent a second letter to GE.  This letter
    requested further information concerning the potential TCE contamination and
    required GE to take certain action.  The letter in part stated:

On February 15, 2004 you received further information in
    regards to the TTC subsurface investigation in the area of 224 Wallace and
    south of this property.  The data appears to support a TCE plume migrating
    from/ through the former GE property located at 224 Wallace.

As discussed you will be required to take action in delineating
    the source area on your former property.  The delineation investigations are to
    determine the current levels and the full vertical and horizontal extent of all
    contamination within the soil and groundwater which are on site location.  The
    delineation report shall include at minimum the following:

...

At this time the ministry is willing to enter into an agreement
    with GE to pursue the required action items voluntarily.  If at any time the
    ministry determines there is unsatisfactory progress a Directors Order will be
    issued to resolve the matter.

[6]

GE responded to the MOE request by agreeing to co-operate.  GE claims
    that by April 2009, responding to the MOE request had resulted in out-of-pocket
    expenses of $2.1 million for investigation costs, $1.86 million for remedial
    costs and $750,000 for legal costs.  It is these costs that GE asserts are
    payable by its insurers pursuant to the terms of the relevant insurance
    policies.

the insurance policies

[7]

The insurance policies in issue are the following:

(a)   A
    comprehensive general liability policy issued by The Canadian General Insurance
    Company (a predecessor to Aviva) for the policy period of December 31, 1968 to
    December 31, 1971 with a policy limit of $1 million; and

(b)   A
    comprehensive general liability policy issued by The Canadian Indemnity Company
    (CIC, a predecessor to The Dominion) for an initial policy period of December
    31, 1971 to December 31, 1972 with a policy limit of $1 million.  CIC issued
    further comprehensive general liability policies for the period from December
    31, 1972 to December 31, 1982; the policy limits of those policies were $1
    million in the early years, rising to $5 million by the end of this period.

[8]

Under the Aviva property damage endorsement, the insurer agreed:

1.    TO PAY
    on behalf of the Insured all sums which the Insured shall become obligated to
    pay [by] reason of the liability imposed upon the Insured by law... for damages
    because of damage to or destruction of property caused by an occurrence within
    the Policy Period...

2.    TO SERVE
    the Insured by the investigation of claims on account of such damage to or
    destruction of property and occurrence alleged as the cause thereof, and by
    negotiations or settlement if deemed expedient and by negotiations for
    settlement, if deemed expedient by the Insurer of such claim whether groundless
    or not, and to pay the costs of such investigation.

3.    TO
    DEFEND in the name and on behalf of the Insured any suit against the Insured
    alleging such damage to or destruction of property and seeking damages on
    account thereof, even if such suit is groundless, false or fraudulent.

4.    TO PAY
    ... (b) the costs taxed against the Insured in any such defended suit,...(d)
    all interest accruing after the entry of judgment for damages Insured against
    hereunder until the Insurer has paid, tendered or deposited in court, such part
    of such judgment as does not exceed the limit of the Insurers liability
    thereon.

5.    TO PAY
    the amounts of money incurred under the foregoing Agreements 2, 3, and 4,
    except settlements of claims and suits, in addition to the applicable limit of
    liability of this Endorsement.

[9]

Under the Dominion of Canada policy in paragraph 1(b), the insurer
    agreed to pay on behalf of the insured:

PROPERTY DAMAGE  All sums resulting from the liability imposed
    by law upon the Insured ... for damage to or destruction of property, including
    loss of use thereof caused by an occurrence as defined herein.

[10]

In
    para. 2 of the Dominion of Canada policy, the insurer agreed:

(a)

To serve
    the Insured upon notice of such... damage to property of others, by
    investigation and by such negotiation or settlement of any resulting claims as
    may be deemed expedient.

(b)

To defend
    in the name and on behalf of the Insured, suits which may be instituted against
    him alleging such... damage to property of others, and demanding damage on
    account thereof even if such suit is groundless, false or fraudulent.

(c)

To pay (i)
    All costs taxed against the Insured in any such defended suit... and (iii) All
    expenses incurred by the [insurer] for investigation, negotiation or defence...

the reasons for judgment of the application judge

[11]

The
    application judge, after reviewing the legal principles governing the
    interpretation of insurance policies and, in particular, the pleadings rule
    in respect of the insurers duty to defend, concluded that the application
    raised two questions:

(1)

whether it
    is possible the MOE letter amounts to a claim that falls within the policies
    and thereby triggers the insurers duty to defend; and

(2)

whether
    the applicant is seeking a defence to the MOEs claim or, rather an indemnity
    for the cost of compliance with the MOE request.

[12]

The
    application judge observed at paragraph 19 of his reasons:

Most of the argument on the MOE letter issue was directed at
    the question of whether the MOE letters and, in particular, the letter of April
    16, 2004:

(1)

with
    respect to the Aviva policy, constituted a claim for damages because of
    damage to or destruction of property or a suit against GE alleging damages
    on account of damage to or destruction of property; and

(2)

with
    respect to the Dominion policy, constituted notice of damage to property of
    others or a suit against GE for damages alleging damage to property of
    others,

thereby engaging the duty to investigate and the duty to defend
    under those policies.

[13]

In
    concluding that there was no duty to defend, the application judges reasons
    state:

[35]    ...A duty
    to investigate and defend is only triggered in the context of these policies by
    a claim arising from an alleged liability for damage.  Under the pleadings
    rule, one looks at the claim to determine whether it falls within the scope
    of the coverage afforded by the policy.  There is a distinction in the policies
    between the obligation to investigate/defend and the obligation to indemnify.
    There is, in my view, also a distinction between the cost of investigation/defence
    of a claim and the cost of compliance with a claim.

[36]    Here, the
    only evidence of a claim by the MOE was the April 16, 2004 letter in which
    the MOE requested GE to take action in
delineating the source area on your
    former property
 (emphasis added).  In the context of the MOE letter,
    therefore, any duty to investigate or defend could only arise with respect to
    that claim.  Here, however, by GEs own admission, GE did not defend
    against this claim nor did it investigate this claim.

[39]    The cost of
    investigation or defence of a claim is distinct from the cost of compliance
    with a claim.  GE argues that the steps taken by GE were in the nature of
    defence costs in that they sought to delineate and reduce any liability.  The
    flaw in that argument, in my view, is that the only claim by the MOE entered
    into evidence on this application did not allege liability for cleanup costs to
    ameliorate damage to the property of others but simply an obligation to conduct
    a delineation exercise with respect to TCE contamination on GEs former
    property at the Ward Site.  What GE calls defence costs were not costs of
defending
    against
the MOEs claim but, in fact, the costs of
complying with
the MOEs claim.  GE complied with the MOEs request and performed the work on
    the basis that it was thought to be in GEs best interests to do so.

[43]    In coming
    to this conclusion, I make no finding on whether the matters alleged and
    requested in the MOEs letter fall within the coverage language of the Aviva
    and Dominion policies from an indemnity perspective.  I base my conclusion
    rejecting GEs request for a declaration that Aviva and Dominion have a duty to
    investigate and to defend the MOEs request solely on the fact that there was
    no investigation or defence of the MOEs claim at all.  What GE is seeking, in
    my view, is indemnification for its costs of complying with the MOEs claim.
    This is not the time to make findings on the merits of GEs indemnity claim in
    this regard.  As the Ontario Court of Appeal said in
Halifax Insurance,
    supra
, the time to determine the insurers duty to indemnify is at the
    conclusion of the underlying litigation, not during the abbreviated application
    for defence costs.  My conclusion, therefore, is without prejudice to the
    parties positions on whether the MOE letter is a claim or to GEs right to
    seek these costs by way of an indemnity claim against Aviva, Dominion, or both,
    as well as the right of those insurers to argue against the existence of that
    obligation.

THE APPEAL

[14]

GE
    raises the following grounds of appeal:

(i)

Whether
    the application judge erred in limiting his analysis of the MOEs assertion of
    liability to the literal text of the April Letter and in failing to consider
    the underlying statutory context and the broader liabilities it imposed on a
    PRP (potentially responsible party) like GE Canada.

(ii)

Whether
    the application judge erred in concluding that costs incurred by GE Canada in
    response to the MOEs assertion of liability were only compliance costs and
    not investigation or defence costs, such that he should not rule on whether the
    MOE made a sufficient claim to trigger the Primary Policies.

(iii)

Whether the
    MOEs assertion of liability against GE Canada triggered the Primary Policies
    and the Respondents duties to investigate and/or defend.

In order to dispose of this appeal, it is only
    necessary to deal with the first ground.  The second and third grounds of
    appeal are simply a further elaboration of the first ground.

Did the application judge err in restricting his
    analysis to the literal text of the April letter?

[15]

Counsel
    for GE argues that the application judge erred in ignoring the reality of what
    was being communicated in the April letter.  He cites
Reid Crowther &
    Partners Ltd. v. Simcoe & Erie General Insurance Co.
, [1993] 1 S.C.R.
    252, at p. 275:

What is required, unless the policy expressly so stipulates, is
    a
form
of demand or assertion of liability, not a
formal
demand or assertion of liability.  Under a policy
    such as the one in this appeal, which contains no express requirement of a
    formal demand or indeed any demand at all, what constitutes a claim made is a
    question to be resolved on the facts of the case.  There is no magic formula.
    One must look to the reality of what the third party was communicating to the
    insured by words and conduct.  If the message was clear, the fact that the
    third party through politeness refrained from stating its demand or intention
    to hold the insured liable in categorical legal terms should not preclude a
    finding that a claim has been made.

[16]

Counsel
    for GE submits that the application judges focus on the strict language of the
    April letter led him to ignore a substantial potential liability for property
    damage imposed by the
Environmental Protection Act
, R.S.O. 1990, c.
    E.19 (the EPA).  By concentrating on the delineation of the source of the
    contamination in the April letter, the application judge failed to appreciate
    that the letter involved the possibility of broader off-site liabilities.

[17]

Counsel
    for GE further argues that the application judge failed to appreciate that the
    substance and reality of the April letter was much more than a claim to
    undertake the delineation of the source.  The April letter should be read as an
    allegation that GEs operations at the Ward Street site were responsible for a
    TCE plume that was the source of downstream contamination at a property owned
    by the TTC.

[18]

Counsel
    for GE also submits that the application judge erred in failing to consider the
    underlying statutory scheme and the range of liabilities for property damage
    that would flow from GE being a responsible party under the EPA.  The letter,
    in effect, was only the beginning of a potential adversarial process whereby GE
    would be required to undertake extensive remedial work, including off-site
    clean up.  In respect of this submission, counsel relies on American
    jurisprudence such as
Johnson Controls, Inc. v. Employers Ins.
, 665
    N.W. 2d 257 where the Wisconsin Supreme Court said at page 26:

[The receipt of a regulators letter] marks the beginning of
    adversarial administrative legal proceedings that seek to impose liability upon
    an insured.  A PRP letter significantly affects legal interests of the
    insured.  Therefore, a reasonable insured would expect this letter to trigger
    its CGL insurers duty to defend.

analysis

[19]

I
    start with reference to the relevant authorities.

[20]

On
    the issue of whether a duty to defend arises depends upon the pleadings rule.
    The Supreme Court of Canada has articulated the rule in a number of cases.  In
Monenco
    Ltd. v. Commonwealth Insurance Co.
, [2001] 2 S.C.R. 699 at para. 28, the
    court said:

The starting premise for assessing whether an insurers duty to
    defend has been triggered rests in the traditional pleadings rule.  Whether
    an insurer is bound to defend a particular claim has been conventionally
    addressed by relying on the allegations made in the pleadings filed against the
    insured, usually in the form of a statement of claim.  If the pleadings allege
    facts which, if true, would require the insurer to indemnify the insured for
    the claim, then the insurer is obliged to provide a defence.  This remains so
    even though the actual facts may differ from the allegations pleaded.

Although in most cases the pleadings rule applies to
    a statement of claim or similar pleading, it can apply to a letter that asserts
    liability for damages against an insured.  Therefore, a careful analysis of the
    April letter must be the starting point in the case at bar.

[21]

The
    Supreme Court of Canada also described the necessary requirements to establish
    a claim that would give rise to a duty to defend.  In
Jesuit Fathers of
    Upper Canada v. Guardian Insurance Co. of Canada
, [2006] 1 S.C.R. 744 at
    para. 50, the court said:

The authorities establish that as a general rule, for a claim
    to be made there must be some form of communication of a demand for
    compensation or other form of reparation by a third party upon the insured, or
    at least communication by the third party to the insured of a clear intention
    to hold the insured responsible for the damages in question.

[22]

With
    the above authorities in mind, I turn to the application judges treatment of
    the April letter.  I can find no fault in the application judges approach to,
    and interpretation of, the April letter.  I agree with him that the only
    evidence of a claim by the MOE in the April letter is the request, or
    requirement if you will, that GE take action in delineating the source of the
    TCE contamination.  GE did not oppose, defend or investigate that request.  GE,
    as it was invited to do in the letter, voluntarily complied with the request of
    the MOE.  It cannot be said that it has suffered any defence or investigation
    costs recoverable under its insurance policies.  As the application judge
    concluded, the costs incurred were compliance costs  not defence costs.  The
    fact that GE provided a list of costs, which it has characterized as potential
    defence costs does not, in my view, change the analysis of whether the April
    letter triggers a duty to defend.

[23]

I
    see no merit in GEs position that the April letter was much more than a claim
    to undertake the delineation of the source of contamination.  The application
    judge has read and understood the plain language of the letter and correctly
    applied the pleadings rule in arriving at a conclusion with which I fully
    agree.

[24]

Similarly,
    I see no merit in the argument that the application judge erred in failing to
    consider the underlying statutory scheme of the EPA and the range of
    liabilities for property damage that might be imposed on GE.  To do so would
    have been to invite speculation: it would not have served any useful purpose.

[25]

The
    reliance of counsel for GE on American case law is not helpful.  I accept the
    conclusion of the application judge and the submissions of counsel for the
    respondents that there are numerous American cases, which go in both directions
    concerning the effect of a regulators letter.  GE submits that only a small
    number of American cases support the application judges conclusion.  The
    number of cases is not the point.  The American cases do not advance the
    argument.

[26]

For
    the sake of completeness, I wish to refer to two Ontario cases, which were
    raised in both the written and oral submissions of counsel.

[27]

GE
    relied on an Ontario Superior Court judgment in
Bridgewood Building Corp.
    (Riverfield) v. Lombard General Insurance Co. of Canada
[2005] O.J. No.
    2083.  In that case, certain general contractors built houses that were covered
    by the Ontario New Home Warranty Plan.  The foundations of a number of houses
    crumbled as a result of defective cement.  The foundations were constructed by
    subcontractors.  The general contractors were obligated under the home warranty
    legislation to repair the defects.  The issue in the case was whether the cost
    of repair was covered by the commercial general liability insurance policies of
    the general contractors.  In holding that there was coverage, the court said at
    para. 36:

It is evident that the Act and
    ONHWP are in the nature of consumer protection legislation, designed to assist
    and protect the purchasers of new homes.  In my view, this no-fault remedial
    and protective legislative scheme is akin to environmental protection
    legislation which requires pollution clean-up and the costs thereof to be
    carried out and absorbed by persons regardless of proof of negligence or
    fault.  Coverage for these and attendant costs under CGL policies has often
    been considered by courts in the United States. [Case citations omitted.]  Since
    1990, most courts that have considered costs of cleaning up environmental
    damage, costs connected with compliance with the Comprehensive Environmental
    Response, Compensation and Liability Act (CERCLA) 42 U.S.C. s. 9601 et seq. Or
    state statutes, are covered by the standard language in CGL insuring agreements
    which pay all sums which the insured shall become legally obligated to pay as
    damages (see: Lathrop, M.L., Insurance Coverage for Environmental Claims,
    Volume 1, (2002) LexisNexis, at p. 3-27).  In my view, the same approach should
    be taken in this particular case.

[28]

The
    application judge in the case at bar distinguished
Bridgewood
on the
    basis that it involved very different issues and the interpretation of a very
    different regulatory regime.  He also called into question Bridgewoods
    reliance on U.S. authority.

[29]

Although
Bridgewood
was upheld on appeal, this
    court made no reference to the lower courts comments concerning environmental
    protection legislation.  The court upheld the decision on the basis of the
    interpretation of the insurance contracts in issue.  See (2006), 79 O.R. (3d)
    494 (C.A.).  I do not find
Bridgewood
helpful to the analysis here.

[30]

Perhaps a more apt Ontario decision is found in
Brockton
    (Municipality) v. Frank Cowan Co.
,
    [2000] O.J. No. 4455.  The case was relied upon by counsel for both
    respondents.
Brockton
arose out of the E-coli contamination of Walkertons water supply.  Walkerton,
    through amalgamation, had become part of the new Municipality of Brockton.  The
    central issue in the case was whether Brockton had a right to take control of
    the defence of certain civil actions from its insurer by appointing its own
    counsel.  Brockton also sought a declaration that its insurer had a duty to
    defend it, which included reimbursement of the following costs:

1.

Legal fees for the
    compensatory damage claims;

2.

Legal fees for responses
    made to regulatory and investigative authorities including the O.P.P., the
    coroner, the MOE, and the Public Inquiry;

3.

Engineering expenses to
    respond to the MOE field order;

4.

Public relations
    expenses;

5.

Remediation expenses.

[31]

The application judge rejected Brocktons position
    concerning reimbursement for costs beyond the civil actions.  Caswell J. of the
    Superior Court said at paras. 81 and 82:

It is my view, however,
    that the expenses incurred by Brockton with respect to the MOE and O.P.P.
    investigations, the engineering reports, remediation work, the public relations
    expenses and the Public Inquiry are simply too remote and are not covered by
    the liability policy.

The investigations of the
    MOE will not result in findings of liability and the imposition of damages.
    Brockton was required to obtain the engineering reports pursuant to the MOE
    field orders.  The town was also required to undertake the remediation work as
    ordered.  I do agree that prompt and efficient reaction by Brockton may
    ultimately impact on the ensuing litigation.

[32]

The
Brockton
judgment was upheld in the Court of Appeal.  See
    (2002), 57 O.R. (3d) 447 (C.A.).  No reference was made to the above quotation
    of the application judge.  Our court held that the insurance policy in issue
    obliged the insurer to reimburse the insured only for those reasonable expenses
    (other than loss of earnings), which were incurred at the insurers request.
    The court concluded that none of the expenses claimed were incurred at the
    request or authorization of the insurer.

[33]

While
Brockton
, on its facts, is arguably closer to the case at
    bar, the decision in this court, and in the court below, turned on the precise
    language of the insurance policy in issue.

[34]

In my view, neither of the two
    Ontario cases is determinative of the issue that the application judge had to
    decide.  As already indicated, I am in agreement with the application judges
    analysis and I see no basis upon which this court should interfere.

disposition

[35]

In
    the result, I would dismiss the appeal.

COSTS

[36]

In
    accordance with the agreement of the parties, I would award partial indemnity
    costs of $35,000 each to the respondents.  Such awards are to be inclusive of
    disbursements and applicable taxes.

Released: AUG 02 2012                   Robert P.
    Armstrong J.A.

KMW                                               I
    agree K.M. Weiler J.A.

I
    agree Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Grosman v. Cookson, 2012
    ONCA 551

DATE:  20120824

DOCKET: C54704

OConnor A.C.J.O. and Ducharme J.A.
*

BETWEEN

Brian Grosman

Applicant (Respondent on Appeal)

and

Penny-Lynn Cookson

Respondent (Appellant)

Harold Niman and Daniel Bernstein, for the respondent
    (appellant)

R. Steven Baldwin, for the applicant (respondent on
    appeal)

Heard:  May 14, 2012

On appeal from the judgment of Justice J. Johnston of the
    Superior Court of Justice, dated November 25, 2011.

OConnor
    A.C.J.O.:

[1]

Does a court have jurisdiction to vary the amount of spousal support in
    a valid separation agreement contrary to an exclusive arbitration provision if
    the payee spouse files the agreement for enforcement under s. 35 of the
Family
    Law Act
,
RSO 1990, c. F.3
(
FLA
)
.  In my view, it does not.

facts

[2]

In 2001, after 34 years of marriage, the appellant wife and the
    respondent husband separated.  Following their separation, they attended for
    mediation with Mr. Stephen Grant and in February 2004, they entered into a
    comprehensive separation agreement (the separation agreement).

[3]

The separation agreement provides that the husband will pay spousal
    support in the amount of $8,500 per month.  It also provides that if either
    party seeks to vary the amount of the spousal support, Mr. Grant will be
    appointed the mediator/arbitrator pursuant to a mediation/arbitration
    agreement.  The mediation/arbitration agreement provides that Mr. Grant is
    appointed as sole arbitrator pursuant to the
Arbitration Act
, 1991, S.O.
    1991, c.17.  It also provides that the agreement shall constitute a submission
    pursuant to the provisions of the
Arbitration Act
.

[4]

The parties divorced in August 2004.  By its terms, the separation
    agreement continued in force.  For convenience, I will refer to the parties as
    the husband and the wife after the divorce.

[5]

The husband is now 77 years of age and was a successful lawyer.  On
    March 30, 2010, he wrote the wife indicating his intention to retire as a
    partner in his law firm at the end of 2010.  After retirement as a partner, he
    would continue as counsel with the firm and receive a reduced income.  He
    proposed a variation of the amount of spousal support.

[6]

In September 2010, the parties attended a mediation before Mr. Grant to
    mediate the husbands request for a variation.  The mediation failed.

[7]

It appears that an arbitration was scheduled for December 2010.  The
    husband changed counsel and the arbitration did not proceed.

[8]

On February 1, 2011, the husband stopped paying spousal support to the
    wife.  Through his counsel, he expressed interest in discussing an amicable
    resolution.

[9]

Towards the end of February 2011, the wife filed the separation
    agreement with the Ontario Court of Justice pursuant to s. 35(1) of the
FLA
with a view to enforcing its terms
.  On
    April 20, 2011, the Director of the Family Responsibility Office (FRO)
    notified the husband that he was required to make future spousal support
    payments to the FRO .

[10]

On June
    14, 2011, the husband filed an application in the Superior Court of Justice
    seeking to vary or terminate his obligation under the separation agreement to
    pay spousal support.

[11]

On
    September 6, 2011, the Director of the FRO sent a notice to the husband
    pursuant to s. 34(1) of the
Family Responsibility and Support Arrears
    Enforcement Act
, 1996, SO 1996, c. 31
(the
Enforcement Act
) indicating that the support arrears were
    $61,212.39.  The notice also indicated that the Director would be taking steps
    to suspend the husbands drivers licence.

[12]

The husband brought a motion pursuant to s. 35(1) of
    the
Enforcement Act
for an order that the Director of the FRO refrain
    from suspending the husbands drivers licence.
On October 4, 2011,
    McMunagle J. granted the husbands motion and required him to pay $1,400 per
    month for spousal support pending a hearing of the husbands application to
    vary the spousal support payment.

[13]

The wife
    brought a motion in the Superior Court to dismiss the husbands application to
    vary the amount of spousal support on the basis that the court lacked
    jurisdiction because the separation agreement required such a request be dealt
    with by way of arbitration.

[14]

On
    November 25, 2011, the motion judge dismissed the wifes summary judgment
    motion.  The wife appeals that dismissal.

motion judges reasons

[15]

The motion
    judge recognized that there are strong policy reasons requiring parties to
    adhere to their agreements, in this case, their agreement to arbitrate requests
    to vary the spousal support.

[16]

The motion
    judge recognized that ordinarily a court would not have jurisdiction to deal
    with a request to vary in these circumstances.  He held, however, (at para. 27)
    that, having sought the benefit of enforcement of
Section
35, the wife
    could not, argue there is no jurisdiction in this Court to consider variation
    of the spousal support Agreement.  Section 35(2)(b) permits a party who has
    filed a domestic contract with the court under section 35(1) to apply to the court
    for a variation.

[17]

The motion judge also pointed out that it was a
    condition of seeking an order that the FRO refrain from suspending the
    husbands drivers licence that the husband also seek to vary the support order
.
    In conclusion, the motion judge held that the Superior Court had jurisdiction
    to entertain variation of the spousal support provision and dismissed the wifes
    summary judgment motion.

issues

[18]

There are
    two issues: 1) did the motion judge err in holding that s. 35 of the
FLA
provides a court with jurisdiction to entertain variation of the terms of a
    separation agreement despite an exclusive arbitration provision in the
    agreement; and 2) if so, does s. 35 (1) of the
Enforcement Act
independently
    confer jurisdiction on the court to hear a motion to vary a spousal support
    order?

section 35 of the
fla

[19]

The
    relevant portion of s. 35 of the
FLA
reads as follows:

35.          (1) A person who is a party to a domestic contract
    may file the contract with the clerk of the Ontario Court of Justice or of the
    Family Court of the Superior Court of Justice together with the persons
    affidavit stating that the contract is in effect and has not been set aside or
    varied by a court or agreement.

(2) A provision of support or maintenance contained
    in a contract that is filed in this manner,

(a) may be enforced;

(b) may be varied under section 37; and

(c) except in the case of a provision for the support
    of a child, may be increased under section 38,

as if it were an order of the court where it is filed.

(4)  Subsection (1) and clause (2)(a) apply despite
    an agreement to the contrary.

[20]

The
    appellant emphasizes that pursuant to s. 35(2)(b), once a domestic contract is
    filed, it may be varied under s. 37 as if it were an order of the court.
    Section 37 provides for an application to the court for variation of an order
    made or confirmed under Part III of the
FLA
.
Thus, the appellant
    argues that the
FLA

specifically permits a variation
    application to the court where a domestic contract is filed with the court
    under s. 35(1) even where the domestic contract contains an exclusive
    arbitration clause.

[21]

In my
    view, however, this interpretation overlooks the effect of s. 35(4), which
    states that subsection (1) and clause (2)(a) apply despite an agreement to the
    contrary.  Subsection 35(2)(b), which permits variation, and upon which the
    appellant relies, is conspicuously absent from section 35(4).  As explained by
    Noel J.A. in
Canada
(Canadian Private Copying Collective) v. Canadian
    Storage Media Alliance
, [2004] F.C.J. No. 2115 at para. 96 (F.C.A.), dealing
    with a series of express exceptions, if a statute specifies one exception (or
    more) to a general rule, other exceptions are not to be read in.  The rationale
    is that the legislature has turned its mind to the issue and provided for the exemptions
    which were intended.  Here, subsection 35(4) gives special treatment to
    subsection (1) and clause (2)(a), which deal with filing and enforcement, to
    specify that they apply despite an agreement to the contrary.   The same
    special treatment is not afforded to clause 35(2)(b) (the variation
    provision).   It follows, in my view, that the legislature intended that an
    agreement to the contrary would supersede s. 35(2)(b).  Were it not so, the
    legislature would have so provided in s. 35(4).

[22]

The effect
    is that the
FLA
permits parties to contract out of the court variation
    procedure in s. 37, but does not allow them to contract out of the ability to
    file a domestic contract and have it enforced by a court under s. 35(1) and s.
    35(2)(a) respectively:  see for example
OConnor v. OConnor
(1990) 28
    R.F.L. (3d) 90 (Ont. C.J.).

[23]

This
    interpretation is sensible.  An agreement to pay a specific amount of spousal
    support is not self-executing.  The parties require an enforcement mechanism to
    ensure that each is kept to the bargain.  However, it remains open to the
    parties to contract for exclusive arbitration to vary the substantive terms.
    In such cases, the court may enforce the domestic contract as it finds it.

[24]

In this
    case, clause (5) of the separation agreement deals with spousal support.  The
    mechanism for review is in clause 5.5.  It reads:

Mr. Stephen Grant will continue to be the appointed
    mediator/arbitrator for all matters related [to] the review of Spousal Support
    pursuant to the terms of a Mediation/Arbitration Agreement dated November 12,
    2003 (the Mediation/Arbitration Agreement), a copy of which is attached  as Schedule
    B.

[25]

Clauses 3
    and 6 of the Mediation/Arbitration Agreement respectively provide:

3. WAIVER OF RIGHTS TO LITIGATION IN COURTS

By submitting to arbitration  the parties hereby waive any
    right to further litigate those issues in court, whether pursuant to the
Family
    Law Act
, R.S.O. 1990, c. F.3, the
Divorce Act
, R.S.C. 1997, or
    any other statute, subject to the judicial review rights.

6.  PRE-ARBITRATION CONFERENCE/MEDIATION

A mediation will be attempted but if it fails to resolve all
    the issues, the remaining issues will be immediately presented for final
    binding arbitration by the mediator who will become the Arbitrator.  The
    parties specifically agree that the participation of the Arbitrator in the
    mediation process shall not disqualify the Arbitrator from arbitrating the
    disputes between them.

[26]

Where an
    arbitration agreement exists, courts will stay their own proceedings and compel
    the parties to arbitrate:
Dormer v. McJannet
(2006), 35 R.F.L. (6
th
)
    418 at paras. 20 and 34; and
Puigbonet-Crawford v. Crawford
, [2006]
    152 A.C.W.S. (3d) 99 at paras. 8, 13 and 14.

[27]

In
    summary, I am of the view that s. 35 of the
FLA
does not supersede the
    parties agreement in a domestic contract to arbitrate rather than litigate
    disputes about varying spousal support.

section 35
enforcement act

[28]

In the
    alternative, the husband argues that the interpretation of s. 35 of the
FLA

that I have reached above does not apply in circumstances where the
    Director of the FRO has initiated the process to suspend the payors drivers
    licence.

[29]

The Director
    of the FRO may commence a process to suspend a payors drivers licence under
    s. 34 of the
Enforcement Act
.  It states:

34.  When a support order that is filed in the Directors
    office is in default, the Director may serve a first notice on the payor,
    informing the payor that his or her drivers licence may be suspended unless,
    within 30 days after the day the first notice is served,

(a)  the payor makes an arrangement satisfactory to the
    Director for complying with the support order and for paying the arrears owing
    under the support order;

(b) the payor obtains an order to refrain under subsection
    35(1) and files the order in the Directors office; or

(c)  the payor pays all arrears owing under the support order.

[30]

In the present case, the husband sought an order under
    s. 35(1) of the
Enforcement Act
that the Director refrain from suspending his licence
.
That
    section provides:

35. (1) If a payor is served with a first notice under section
    34 and makes a motion to change the support order, the payor may also, on
    notice to the Director, make a motion for an order that the Director refrain
    from directing the suspension of the payors drivers licence under subsection
    37(1), on the terms that the court considers just, which may include payment
    terms.

[31]

Section 35(1) requires the payor to make a motion to
    change the support order as a condition of bringing a motion for an order that
    the Director refrain from suspending the payors drivers licence.

[32]

The
    husband argues that the motion to change the support order in s. 35(1) refers
    to a motion to a court.  He finds support for his argument in s. 35(6) of the
Enforcement
    Act
which states:

35. (6) The court that has jurisdiction to change the support
    order is,

a) in the case of a support order that was made in Ontario,

(i) the court that made the support order, unless sub-clause
    (ii) applies,

(ii) if the support order is a provision in a domestic contract
    or paternity agreement, the Ontario Court of Justice or the Family Court; and

b) in the case of a support order that was made outside
    Ontario,

(i) if the support order was made under the
Divorce Act
(Canada), the Superior Court of Justice or the Family Court,

(ii) if the support order is registered under the
Inter-jurisdictional
    Support Orders Act, 2002
, the court in Ontario that has jurisdiction under
    that Act to vary the support order.

[33]

Thus, the husband argues that the statutory regime
    requires that having moved for an order that the Director refrain from
    surrendering his licence, he is implicitly permitted under s. 35(1) of the
Enforcement
    Act
to move in court to change the underlying support order.
If it
    were otherwise, he would have no recourse to avoid license suspension.

[34]

I do not
    accept this argument.  In my view, the statutory regime of s. 35 of the
Enforcement
    Act
can be interpreted harmoniously with the interpretation of s. 35 of
    the
FLA
discussed above.  Put another way, I am satisfied that if the
FLA

does not allow the parties to avoid their bargain to use private arbitration
    as the exclusive means of settling disputes, neither does s. 35 of the
Enforcement
    Act
.

[35]

I reach
    this conclusion for three reasons.

[36]

First, the
    language of ss. 35(1) and (6) of the
Enforcement Act
is open to a
    different and more sensible interpretation than that urged by the husband.
    Section 35(1) provides an avenue of recourse if a payor makes a motion to
    change the support order.  While the use of the term makes a motion may
    include a motion to a court, there is no reason why the language cannot be more
    broadly understood to include a motion (or written request) to an arbitrator
    where the parties have specifically agreed that this should be the exclusive
    means by which to obtain a variation.

[37]

As to s.
    35(6), it merely provides which court has jurisdiction in certain
    circumstances.  It does not provide that all motions referred to in s. 35(1)
    need be made to a court.

[38]

Second,
    the
Enforcement Act
was first enacted in 1996.  Section 35 of the
FLA
was in force at the time.  As I have indicated, s. 35 of the
FLA
recognizes that the provision in a domestic contract for exclusive arbitration
    should be applied even after an agreement has been filed under s. 35(1).  There
    is nothing in the wording of the
Enforcement Act
indicating a
    legislative intent to alter that important principle.  Had the legislature
    intended to change the effect of an agreement to arbitrate upon the
    availability of the court variation process, clearer language would be required
    than that which is found in s. 35 of the
Enforcement Act
.

[39]

The
Enforcement
    Act
complements the
FLA
by providing a mechanism whereby support
    orders filed with the court under the
FLA
, which include the terms of
    domestic contracts, are enforced.  Nothing in the
Enforcement Act
suggests
    that it is intended to alter the clear effect of the
FLA
itself
.

[40]

Interpreting
    s. 35 of the
Enforcement Act
in the manner I suggest promotes harmony
    between that Act and the
FLA
:  It is presumed that the body of
    legislation enacted by a legislature does not contain contradictions or
    inconsistencies, that each provision is capable of operating without coming
    into conflict with any other:  R.
Sullivan,
Construction of Statutes
, 5
th
ed. (Markham:  LexisNexis, 2008),
    at p. 223.

[41]

Third,
    accepting the husbands interpretation of s. 35 of the
Enforcement Act
would create perverse incentives.  If the husbands interpretation of s. 35
    were accepted, the following scenario would be possible:  Two parties enter
    into a domestic contract that includes an exclusive arbitration clause for the
    variation of its terms.  If one party wants to change the terms, without
    resorting to arbitration, that party would have an incentive to default on its
    obligations and hope that the other party submits the contract for enforcement
    under s. 35 of the
FLA
.  If the other party does, once the Director of
    the FRO attempts to enforce the domestic contract by suspending the defaulting
    partys drivers licence, the defaulting party could bring a motion to the
    court to vary the underlying obligation  thereby circumventing the arbitration
    agreement.  In other words, on the husbands interpretation, parties would be
    able to, through the
Enforcement Act
, do what they are specifically
    not permitted to do under their own agreement.

[42]

On the
    flipside, the husbands interpretation may lead to a chilling effect on spouses
    submitting their contracts for enforcement under s. 35 of the
FLA
.
    Parties aware of the above potential scenarios might be reluctant to submit
    their domestic contracts for enforcement.  Otherwise, the party would risk
    losing the negotiated terms of the agreement.

[43]

All these
    considerations favour an interpretation of s. 35 of the
Enforcement Act

that leads to the conclusion that a party may not circumvent his agreement to
    arbitrate a variation simply because the courts enforcement mechanism has been
    engaged.

disposition

[44]

In the
    result, I would allow the appeal, set aside the order of Justice Johnston dated
    November 25, 2011, and grant the wifes motion for summary judgment dismissing
    the husbands application to the Superior Court of Justice to vary the amount
    of spousal support.

[45]

If the
    parties cannot agree on the issue of costs, they may make written submissions
    regarding the costs of the motion and appeal on a schedule set by the courts
    Senior Legal Counsel, Mr. John Kromkamp.

RELEASED:
DOC  AUG 24 2012

D. OConnor
    A.C.J.O.

I agree Ducharme
    J.A.

*

Justice Feldman heard the appeal but, due to circumstances
    that arose after the hearing, was unable to participate in the giving of the
    decision.


COURT OF APPEAL FOR ONTARIO

CITATION:
Hawaldar v. Solomon, 2012
    ONCA 555

DATE: 20120824

DOCKET: C53154

Goudge, Gillese and Armstrong JJ.A.

BETWEEN

Halima Hawaldar

Plaintiff (Respondent)

and

Roy Solomon, also known as Roy Soloman, and
    Atlantic Financial Inc.

Defendants (Appellants)

Ronald G. Chapman, for the appellants

Harvey J. Ash, for the respondent

Heard: August 23, 2012

On appeal from the judgment of Justice Peter Lauwers of
    the Superior Court of Justice, dated December 30, 2010.

APPEAL BOOK ENDORSEMENT

[1]

At the opening of the appeal, the appellant abandoned his argument
    concerning the condominium.

[2]

In our view, there was ample evidence to support the trial judges
    findings that the investment of the respondents money was to be safe and that
    where it was invested was unsafe. Nor do we see this to be a corporate veil
    case. The trial judge held the personal appellant liable on the basis of the
    direct relationship he found to exist between that appellant and the
    respondent. There was a firm evidentiary foundation for the finding and we
    would not interfere with it.

[3]

Appeal dismissed. Costs to the respondent fixed at $9,700 in total.


COURT OF APPEAL FOR ONTARIO

CITATION:
PC
    Ontario Fund v. Essensa, 2012 ONCA 531

DATE: 20120807

DOCKET: C54654

Sharpe, Gillese and Epstein JJ.A.

BETWEEN

PC Ontario Fund and Progressive Conservative
    Party of Ontario

Applicants (Appellants)

and

Greg Essensa, Chief Electoral Officer

Respondent (Respondent)

W. Thomas Barlow and Z. Maladwala, for the appellants

John B. Laskin and Andrew Bernstein, for the respondent

Paul Cavalluzzo, for the intervener Working Families
    Coalition (Canada) Inc.

Jack B. Siegel and Melanie Francis, for the intervener
    Laura Miller on behalf of the Ontario Liberal Party

Heard: June 21, 2012

On appeal from the order of the Divisional Court (Wilson,
    Swinton and Lederer JJ.), dated April 27, 2011 with reasons reported at 2011
    ONSC 2641.

ENDORSEMENT RE
    COSTS

[1]

We have now received submissions from Working Families Coalition
    (Canada) Inc. (WFC) requesting costs of the appeal.

[2]

WFC was granted leave to intervene as an added party to the application
    for judicial review before the Divisional Court on the following term:

WFC shall not seek costs, nor may any costs be awarded against
    it except if WFC seeks to argument the record

[3]

WFC submits that that order applies only to the proceedings before the
    Divisional Court and that as the appellants chose to take the matter to the
    Court of Appeal, WFC should be permitted to recover its costs of the appeal.

[4]

We disagree.  The term of the order granting WFC leave to intervene as
    an added party benefitted WFC to the extent that it immunized WFC from any exposure
    to costs of the application for judicial review.  In our view, if WFC wished to
    change its position with respect to costs, it should have made that position
    clear to the parties and to the court prior to the hearing of the appeal.  To
    permit WFC to escape the limiting term of the order upon which it was permitted
    to intervene in this proceeding after it has learned the result of the appeal
    would be fundamentally unfair to the appellants.

[5]

Accordingly, there shall be no order as to costs in favour of WFC.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.

Gloria
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Petroniuk
    (Re), 2012 ONCA 559

DATE: 20120824

DOCKET: C55063

Feldman, Sharpe and Ducharme JJ.A.

IN THE MATTER OF:  Elizabeth Petroniuk

Elizabeth Petroniuk, acting in person

Anita Szigeti, for
amicus curiae

Jean D. Buie, for the Centre for Addiction and Mental
    Health

Avene Derwa, for the Attorney General

Heard: August 24, 2012

On appeal against the disposition of the Ontario Review
    Board dated, January 30, 2012.

APPEAL BOOK ENDORSEMENT

[1]

This is an appeal from the disposition of the Review Board dated January
    30, 2012.

[2]

Ms. Petroniuk on her own behalf asks this court to order an absolute
    discharge.
Amicus curiae
, Ms. Szigeti, supported by the hospital CAMH,
    submits that the Board erred by failing, before the close of the hearing, to
    canvas with all the parties the proposed terms of the disposition order. She
    submits that the Board imposed a 24 hour/7 day a week supervision requirement
    where the hospital allows the appellant to live in the community, when the
    evidence was that the appellant required a high level of supervision, but that
    was not described with any further specificity.
Amicus
also submits
    that the Board erred by not allowing as a possible disposition by the hospital,
    overnight visits by the appellant with her mother.
Amicus
and the
    hospital request referral back to the Board. The Attorney General takes the
    position that the Board made no error and its disposition should not be
    disturbed.

[3]

We agree with
amicus
that the Board should have canvassed the
    parties with respect to the terms of the disposition order in order to clarify
    the parties positions and submissions on the specific terms of the order. In
    this case, the 24 hour/7 day a week supervision requirement, we are told, is
    extremely restrictive and puts severe constraints on the ability of the
    hospital to allow any community living if that becomes appropriate.

[4]

In our view, there is no need, however, to refer the matter back to the
    Board to address this issue. Rather, this court can change the particular words
    of  condition (g) to strike the words 24 hours a day, leaving it to the
    hospital to decide what is appropriate as circumstances require and at the
    relevant time.

[5]

We agree, however, with the Attorney General that the Board was entitled
    not to allow overnight passes. On the evidence the Board heard after the issue
    was canvassed with Dr. Darby, there was no realistic possibility that such an
    order could be made.

[6]

In the result, the appeal is allowed in part, and the order is amended
    in condition 2(g) to delete the words 24 hours a day.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Jiwa, 2012
    ONCA 532

DATE: 20120808

DOCKET: C54085

Gillese, Pepall and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nadeem Jiwa

Appellant

Clayton Ruby and Nader Hasan, for the appellant

Michal Fairburn and Scott Latimer, for the respondent

Heard: May 23, 2012

On appeal from the sentence imposed on June 29, 2011 by
    Justice Michelle K. Fuerst of the Superior Court of Justice.

Gillese J.A.:

[1]

On August 2, 2007, 43-year old Detective Constable Robert Plunkett was
    killed while carrying out his duties as a police officer.  At the time of his
    death, he was married with three children, a valued member of the York Regional
    Police Special Services Unit and active in the community.

[2]

Nadeem Jiwa was 19 years old at the time of the offence.  He had no
    criminal record but was on bail at the time for airbag theft.  He was found not
    guilty of the first degree murder of Detective Constable Plunkett, but guilty
    of manslaughter.  He was sentenced to 12 years of imprisonment, followed by a
    10-year driving prohibition.

[3]

This appeal calls into question the fitness of that sentence.

Overview

[4]

In August of 2007, Mr. Jiwa was on bail for airbag theft.  One of the
    conditions of his bail was that he was to abide by the rules of his mother, who
    was his surety.  One of those rules was a 1:00 a.m. curfew.

[5]

From approximately 2:30 a.m. to just before 5:00 a.m. on August 2, 2007,
    Mr. Jiwa and a friend were under surveillance by members of the York Regional
    Police Special Services, including Detective Constable Plunkett, because the
    two men were suspected of stealing airbags from cars.  The police officers were
    working in plainclothes and driving unmarked vehicles.  They watched as Mr.
    Jiwa and his friend travelled through a residential neighbourhood stealing airbags.
    They also stole a gold-coloured Honda.

[6]

Mr. Jiwa and his friend drove separately to Ascot Crescent.  At shortly
    before 5:00 a.m. the police decided, primarily for public safety reasons, that
    the two men should be arrested.

[7]

Detective Constable Plunkett radioed that he would assist the other
    arresting officers.  As the other officers dealt with Mr. Jiwas friend,
    Detective Constable Plunkett approached the gold Honda yelling police, police,
    police.  Mr. Jiwa put the car into reverse.  Detective Constable Plunkett was
    caught in the crease of the open drivers door.  He had no choice but to cling
    to the car, with one hand on the top of the open door and the other on top of
    the car, as it sped backwards. He was crushed to death when the door of the car
    hit a tree. He fell to the ground.

[8]

Mr. Jiwa continued to drive the car in reverse, coming to a stop only when
    the stolen vehicle he was driving was struck by another police vehicle.
    Although Mr. Jiwa attempted to flee on foot, he submitted to arrest after a
    chase by other police officers.

[9]

Mr. Jiwa did not deny that he killed Detective Constable Plunkett but
    maintained at trial that it was an accident and that he did not know that
    Detective Constable was a police officer when he caused the car to drive
    backwards.  The jury found him guilty of manslaughter.

[10]

The
    sentencing judge found that Mr. Jiwa knew that he was being arrested by police
    officers, including Detective Constable Plunkett, and that he drove the car in
    reverse in order to avoid being arrested.  She also found that Mr. Jiwa did not
    stop when Detective Constable Plunkett was crushed against the tree.  I will
    refer to these findings collectively as the findings of fact.

[11]

During
    the sentencing hearing, Crown counsel was permitted to play a video tribute to
    Detective Constable Plunkett.  Defence counsel had agreed to the video being
    played.

[12]

The
    Crown contended that a sentence of 12 to 14 years in jail should be imposed
    while the defence argued that five to seven years imprisonment was
    appropriate.

[13]

Mr.
    Jiwa was sentenced to 12 years of imprisonment and a 10-year driving
    prohibition to commence after the expiration of his jail sentence.

[14]

Mr.
    Jiwa seeks leave to appeal sentence.  He acknowledges that manslaughter is a
    serious offence and the circumstances are tragic but argues that 12 years is
    too long, given that he was a youthful, first offender who has shown genuine
    remorse for his actions.

[15]

For
    the reasons that follow, I would dismiss the appeal.

The Issues

[16]

The
    appellant submits that the sentencing judge erred in:

1.  making
    the findings of fact;

2.  admitting
    the video tribute at the sentencing hearing;

3.  her
    articulation and application of the sentencing principles    applicable in
    manslaughter cases;

4.  her
    application of the proportionality principle; and

5.  imposing
    a 10-year driving prohibition.

The Findings of Fact

[17]

The
    appellant submits that the sentencing judge made a palpable and overriding
    error in finding that Mr. Jiwa knew that Detective Constable Plunkett was a
    police officer and in finding that he knew Detective Constable Plunkett was
    injured when he continued driving after the collision.  He also contends that
    the sentencing judge failed to explain why she disregarded the evidence
    favourable to Mr. Jiwa and that she significantly increased the sentence based
    on aggravating factors that had not been proved beyond a reasonable doubt.

[18]

I
    see nothing in this ground of appeal.  There is no basis on which to interfere
    with the sentencing judges findings of fact.

[19]

The
    sentencing judge properly articulated and applied the relevant legal principles
    in concluding that this was a case in which she had to come to her own
    determination as to whether Mr. Jiwa knew that he was being arrested by the
    police and drove in an effort to resist arrest.  The sentencing judge gave
    thoughtful, comprehensive reasons for her findings of fact.  Those findings
    were fully available to her.  In relation to the finding that Detective
    Constable Plunkett was a police officer, while it is correct that he and the
    other officers were in plain clothes, during the arrest they repeatedly yelled
    that they were police officers.  They yelled this so loudly that a civilian
    heard them from inside her bedroom.  The appellants friend acquiesced in the
    arrest so he clearly understood that they were police officers.  The suggestion
    that Mr. Jiwa thought Detective Constable Plunkett was only winded after
    being smashed into a tree is ludicrous, in my view.  As the driver of the
    vehicle, Mr. Jiwa must have appreciated the severity of the collision that
    crushed Detective Plunketts body between the tree and the car door.  It is inconceivable
    that any driver could fail to appreciate the harm that would be caused by such
    a collision.

[20]

At
    para. 46 of her reasons, the sentencing judge specifically states that she
    found the facts beyond a reasonable doubt.  It is apparent from the careful manner
    in which the sentencing judge approached the evidence that she did precisely as
    she stated, that is, she found the facts beyond a reasonable doubt.

[21]

To
    the extent that the appellant suggests that the sentencing judge erred by
    sentencing Mr. Jiwa as if he had been found guilty of manslaughter on the basis
    of the unlawful act of resisting arrest, I disagree.  It is clear from her
    reasons that Mr. Jiwa was sentenced for unlawful act manslaughter on the basis
    of dangerous driving, with an aggravating factor being that he was
    intentionally resisting arrest at the time that he engaged in the dangerous
    driving.  The sentencing judge made no error in considering, as an aggravating
    factor, that Mr. Jiwa drove dangerously in order to avoid arrest.

The Video Tribute

[22]

The
    appellant submits that the sentencing judge erred by admitting the memorial
    video tribute to Detective Constable Plunkett at the sentencing hearings.  The five-minute
    long video consisted of still photographs of Detective Constable Plunketts funeral
    set to music, including close-ups of teary-eyed police officers and photographs
    of Detective Plunketts grieving widow.

[23]

The
    sentencing judge understood the videos potential for prejudice.  Prior to
    admitting it, she indicated that she would be guided by counsels positions on
    the matter, saying, If [all counsel have] seen it and youre confident that it
    is not inappropriate then Ill be guided by your joint positions.  After some
    discussion, defence counsel agreed to the video being played.

[24]

In
    her reasons for sentence, the sentencing judge expressly instructed herself not
    to be guided by emotion but, rather, to impose a just sentence in accordance
    with the principles of sentencing.  As well, she expressly stated that she
    ignored any victim impact information that exceeded permissible bounds.

[25]

The
    sentencing judge was properly cautious about receiving evidence or information
    that might be an attempt to use emotion to increase the length of the
    sentence.  In light of defence counsels consent to its admission and as it is clear
    that the sentencing judge was not unduly swayed by the video, I would dismiss this
    ground of appeal.

The Sentencing
    Principles

[26]

At
    para. 34 of her reasons, the sentencing judge said this:

In sentencing an offender for manslaughter, the principles of
    denunciation and deterrence, both general and specific, are paramount: see,
R.
    v. Carrière
, [2002] O. J. No. 1429 (C.A.);
R. v. Costa
, [1996] O.J.
    No. 299 (Gen. Div.).  Rehabilitation cannot be ignored, particularly for a
    young first offender, but it assumes a subordinate role in manslaughter cases.
    Society must express, through the courts, its abhorrence of the criminal
    conduct involved in the taking of a life by an unlawful act.

[27]

The
    appellant contends that these sentences are an incorrect statement of law and
    that the sentencing judge erred in relying on them.  He says that there is
    neither a blanket rule that the principles of denunciation and deterrence are
    paramount in all manslaughter cases nor that the goal of rehabilitation must be
    subordinate to denunciation and deterrence in all manslaughter cases.

[28]

I
    agree that there are no such blanket rules.  However, I do not accept that the
    sentencing judge intended these statements to be a general rule for all
    manslaughter cases, nor do I view her as having treated them as such.  Rather, the
    sentencing judge was saying that, in the circumstances of this case, denunciation
    and deterrence were paramount and rehabilitation was secondary.

[29]

My
    view is based on two primary considerations, the first of which is para. 35 of
    the sentencing judges reasons.  Para. 35 of the reasons reads as follows:

A diverse range of circumstances will found a conviction for
    manslaughter.  Accordingly, while the maximum sentence is life imprisonment,
    there is wide variation in the range of sentence for this offence.  At one end
    of the manslaughter spectrum, the circumstances may approximate an
    unintentional and almost accidental killing, while there will be those
    approaching murder at the opposite extremity:  see,
R. v. Carriere
,
    above.  As the Supreme Court of Canada put it in
R. v. Ferguson
, 2008
    SCC 6, at para. 15, The appropriateness of a sentence is a function of the
    purpose and principles of sentencing set out in ss. 718 to 718.2 of the
Criminal
    Code

as applied to the facts that led to the conviction.  The facts
    of the offence, the circumstances of the accused, and his or her moral
    blameworthiness are all considerations.

[30]

In
    para. 35, the sentencing judge identifies the fact-specific and highly
    individualised task of a sentencing judge, one that reflects his or her
    assessment of the combined effect of the many variables inevitably at play when
    crafting a sentence.  The sentencing judge concludes para. 35 with a reiteration
    of the need to consider all of the facts of the offence, the circumstances of
    the accused, and his or her moral blameworthiness.

[31]

Paragraph
    35 follows immediately after the impugned statements.  Its recognition of the
    diverse range of circumstances that will found a conviction for manslaughter
    and the need to consider each case individually demonstrate that the sentencing
    judge did not intend the statements in para. 34 to amount to a general rule
    applying to all manslaughter cases.  Rather, as I have said, para. 34 expresses
    the sentencing judges view of how to balance the competing variables at play
    in the case before her.

[32]

My
    second reason for so concluding flows from the cases referred to by the
    sentencing judge:
R. v. Carrière

(2002), 164 C.C.C. (3d) 569
    (Ont. C.A.) and
R. v. Costa
(1996), 30 W.C.B. (2d) 28 (Ont. Ct. (Gen.
    Div.)).  Neither
Carrière
nor
Costa
stands for the general
    proposition that denunciation and deterrence are paramount in all manslaughter
    cases or that rehabilitation must always be subordinate to denunciation and
    deterrence in all manslaughter cases.

[33]

In
Carrière
, after explaining why the facts led the court to view moral
    culpability in the case as very close to the murder end of the spectrum and why
    Mr. Carrière approached the worst offender category, this court stated at
    para. 18:

Having regard to the principles of sentencing ... and to the
    totality of the circumstances in this case,
we conclude that the objectives
    of denunciation, deterrence and isolation must be given paramount consideration.
    Other considerations, such as rehabilitation cannot be ignored but must, in our
    view, assume a subordinate role. [Emphasis added.]

[34]

By
    its terms, para. 18 makes it clear that this court was not creating a rule of
    general application to manslaughter cases. It was only after having due regard
    to the specific circumstances of that case that the court held that denunciation,
    deterrence and isolation were the paramount sentencing considerations.

[35]

Like
    the present case,
Costa
was a case of a youthful, first offender.  Mr.
    Costa had pleaded guilty to manslaughter.  At para. 35 of his reasons for
    sentence, Watt J. reflects the need to consider each case on its own facts when
    balancing the competing interests at play in sentencing.  He wrote:

There is, however, no standard sentence, for there is neither
    standard crime nor standard criminal.  To be certain, there are various
    principles whose application governs the imposition of sentence in any case.
    Their application, however, does not always mandate the same result.

[36]

The
    reasons for sentence in the present case are careful, detailed and thorough.
    They demonstrate the depth of knowledge and experience of this sentencing judge.
    As para. 35 of her reasons (set out above) makes clear, she was fully aware of
    the tremendous variation in the degree of responsibility among offenders found
    guilty of manslaughter.  She also would have been fully aware that
Carrière

and
Costa

stood for the propositions quoted above and not
    for a general principle of law governing all manslaughter cases.

[37]

Accordingly,
    I would dismiss this ground of appeal.

Proportionality

[38]

The
    appellant submits that the sentencing judge erred in her application of the proportionality
    principle by failing to give sufficient weight to the role of rehabilitation in
    sentencing a youthful, first offender.  He submits that a sentence of 12 years
    is inconsistent with the goal of rehabilitation and outside the range for
    analogous cases.  He points to cases such as
R. v. Priest
(1996), 110
    C.C.C. (3d) 289 (Ont. C.A.) as support for his submission that sentences for
    youthful first offenders must focus on specific deterrence and rehabilitation
    and not on general deterrence or denunciation.

[39]

I
    do not share the appellants view of the caselaw.

[40]

Priest

was a case involving break-and-enter theft by a 19-year old.  The
    sentencing judge found that general deterrence was the paramount
    consideration.  In allowing the sentence appeal and reducing the sentence,
    Rosenberg J.A. on behalf of this court, held that the sentencing judges
    emphasis on general deterrence at the expense of rehabilitation in the context
    of a youthful first offender was an error in principle.

[41]

However,
    as this court noted in
R. v. Tan
, 2008 ONCA 574, 268 O.A.C. 385, at
    para. 32, in
Priest

at pp. 294-95, Rosenberg J.A. was careful
    to exclude very serious offences and offences involving violence from the
    principle that sentences for youthful first offenders should emphasize
    individual deterrence and rehabilitation.  In the present case, the appellant
    committed a very serious, violent crime.

[42]

In
    my view, the sentencing judge committed no error in treating denunciation and
    deterrence as paramount sentencing goals in this case nor did she improperly
    subordinate the principle of rehabilitation.  The fact that Detective Constable
    Plunkett was killed while in the line of duty is a seriously aggravating
    factor, one which the sentencing judge underlined by reciting the following
    passage from
R. v. Phillips
(1999), 138 C.C.C. (3d) 297, at para. 27,

Police officers carry out an essential and responsible role in
    society.  In doing so they are often required to assume risks to their personal
    safety.  Because of that, when a police officer is killed in the execution of
    duty, the community is understandably outraged.  In imposing sentence, it is
    appropriate to reflect societys revulsion for this aspect of the offence.

[43]

Nor
    do I accept that the sentencing judge failed to give due consideration to the
    appellants rehabilitative potential.  She gave full recognition to the fact
    that Mr. Jiwa was only 19 at the time of the offence and that he was a first
    offender. Far from ignoring or improperly discounting rehabilitation, she
    expressly set out the many positive aspects of Mr. Jiwas life that spoke to
    the matter of rehabilitation.  She summarized them in para. 48 of her reasons,
    saying:

In mitigation, Mr. Jiwa was only 19 years old when he killed
    Detective Constable Plunkett.  He has no prior criminal record.  However, his
    life circumstances as they were at the time of the offence are unimpressive.
    Despite the advantages of a supportive and prosperous family, he failed to
    complete high school, had not worked at employment of consequence, and was not
    amenable to his parents discipline.  It is to his credit that he has taken and
    passed two high school level courses while in custody.  This demonstrates some
    degree of maturation, which is supported by the observations of Dr. Ismail, and
    is an indication of rehabilitative potential.  Mr. Jiwa has very strong family
    and community support from individuals who are committed to assist him in
    integrating back into society.  He expressed some degree of remorse when he
    apologized to Detective Constable Plunketts family in court.  I consider as
    well that the killing of Detective Constable Plunkett was what is sometimes
    termed an involuntary manslaughter, meaning an unlawful killing not
    accompanied by the state of mind to constitute it murder: see,
R. v. Costa
,
    above.

[44]

At
    the same time, however, she recognized the factors that seriously aggravate the
    offence and elevate Mr. Jiwas moral blameworthiness.  In addition to the
    seriously aggravating factor that Detective Constable Plunkett was killed
    during the course of duty, on the facts as found by the sentencing judge, Mr.
    Jiwa knew that he was dealing with the police but, intent on resisting arrest,
    he drove the stolen car in a dangerous way that led to Detective Constable
    Plunkett being crushed to death.

[45]

In
    addition, at para. 47 of her reasons, the sentencing judge lists the following additional
    aggravating factors:

a.       At the time of the offence, Mr. Jiwa was driving a
    stolen car, having spent several hours engaged in criminal activity, stealing
    airbags;

b.       Mr. Jiwa was on bail for allegations of similar
    activity, albeit not convicted of it;

c.       Mr. Jiwas recognizance of bail specified that he was
    to obey the rules set by his mother as his surety.  One of those rules was a
    1:00 a.m. curfew.  He demonstrated a flagrant disregard for his mothers
    discipline and so for the underlying court order;

d.       After Detective Constable Plunkett was crushed between
    the tree and the car door, Mr. Jiwa did not stop to come to his aid.  He
    carried on until Detective Constable Shaw deliberately rammed the Honda;

e.       Mr. Jiwa then tried to flee the area on foot,
    surrendering to the police only when it was clear that he had no route of
    escape; and,

f.        Detective Constable Plunketts death has had a
    devastating impact on his family, and on his colleagues who were with him that
    night.

[46]

As
    all counsel conceded at the sentencing hearing, there are no cases that match
    the circumstances of this one.  The sentencing judge was left to draw on the principles
    of sentencing and weigh the facts that she had found against those principles.
    As an appellate court, we must defer to the sentencing decision unless
    convinced that there is an error in principle or that the sentence is
    demonstrably unfit.  As Doherty J.A. noted at para. 72 of
R. v. Ramage
2010 ONCA 488, (2010), 257 C.C.C. (3d) 261 (Ont. C.A.):

The sentencing judge represents and speaks for the community
    that has suffered the consequences of the crime.  He or she is much better
    placed to determine the sentence needed to adequately protect the community
    than is an appellate court sitting at a distant place often years removed from
    the relevant events.

[47]

As
    I have explained, the sentencing judge approached the task of sentencing
    properly and her reasons reveal no error in principle or law.  While the
    sentence is at the very high end of the range for a youthful, first offender
    and other judges might have imposed a shorter sentence, I cannot say that it is
    demonstrably unfit.

The Driving Prohibition

[48]

The
    appellant contends that the imposition of a 10-year driving prohibition to
    commence at the end of Mr. Jiwas jail sentence was excessive and unnecessary.
    He argues that the lengthy driving prohibition will unduly impede the
    appellants reintegration into society because it will limit his job and
    educational opportunities on release.

[49]

While
    it would have been preferable had the sentencing judge given reasons for
    imposing the driving prohibition, I would not give effect to this ground of
    appeal.  It is apparent on a full reading of the reasons that the sentencing
    judge imposed the driving prohibition to protect the public.  At a time when Mr.
    Jiwa was on bail for stealing airbags, he breached that bail, and killed a
    police officer while driving excessively fast and dangerously.  In the context
    of the sentence as a whole, the driving prohibition is not unfit.

DISPOSITION

[50]

Accordingly,
    while I would grant leave to appeal sentence, I would dismiss the appeal.

E.E. Gillese J.A.

I agree  E.
    Ducharme J.A.

Pepall J.A. (Concurring):

[51]

I
    have read the reasons of my colleague, Gillese J.A., and agree with her that
    the sentence imposed was fit and that the appeal should therefore be dismissed.
    I also agree with her reasons on the first, second, fourth and fifth issues
    raised by the appellant on the appeal, but disagree with her reasoning on the
    third issue, namely, the sentencing judges articulation of the sentencing
    principles.

[52]

As
    my colleague indicates,
R. v. Carriè
re
(2002), 164 C.C.C.
    (3d) 569 (Ont. C.A.) and
R. v. Costa
(1996), 30 W.C.B. (2d) 28 (Ont.
    Ct. (Gen. Div.)) do not stand for the propositions advanced by the sentencing
    judge in paragraph 34 of her decision and reproduced in paragraph 26 of these
    reasons. Unlike my colleague, however, it is my view that the sentencing judge
    erred in paragraph 34 of her reasons in articulating the governing principles
    in sentencing an offender for manslaughter. As my colleague states at paragraph
    32: Neither
Carriè
re
nor
Costa
stands for the
    general proposition that denunciation and deterrence are paramount in all
    manslaughter cases or that rehabilitation must always be subordinate to
    denunciation and deterrence in all manslaughter cases.  I agree.  However,
    with respect, I do not read paragraph 34 of the sentencing judges reasons as
    being consistent with these principles.

[53]

Furthermore,
    in my view, paragraph 35 of the sentencing judges reasons does not serve to
    qualify the incorrect statements of principle at paragraph 34 of the reasons.
    Firstly, treating denunciation and deterrence as paramount and rehabilitation
    as subordinate is not necessarily inconsistent with a consideration of all the
    facts of the offence, the circumstances of the accused and his moral
    blameworthiness as described in paragraph 35 of the sentencing judges reasons.
    Secondly, reasons for decision should speak for themselves.

[54]

Having
    said that, in the circumstances of this case, I am of the view that
    denunciation and deterrence should be treated as paramount and rehabilitation
    as subordinate. Furthermore, I agree with, and adopt, the sentencing judges
    description of the aggravating and mitigating factors applicable in this case.

[55]

This
    was a very serious crime.  Detective Plunkett was killed in the line of duty.
    His family and colleagues have been devastated by his death. I recognize that
    Mr. Jiwa was only 19 years of age at the time of the offence, had no previous
    record, showed some remorse and the killing was involuntary. Nonetheless, the
    offence was committed while he was on bail for pending air bag theft charges;
    he was driving a stolen vehicle having spent several hours stealing air bags;
    and he was in violation of his curfew. The sentencing judge found, as she was
    entitled to do, that Mr. Jiwa knew he was being arrested by police officers
    including Detective Constable Plunkett, drove in an effort to resist arrest and
    did not come to Detective Constable Plunketts aid. Taken together, these
    factors warrant a 12 year sentence of imprisonment. Accordingly, I conclude
    that the sentence was fit.  I, too, therefore would dismiss the appeal.

Released:

EEG                                       S.E. Pepall
    J.A.

AUG 08 2012