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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.L., 2022 ONCA 50

DATE: 20220124

DOCKET: C67740

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.L.

Appellant

Jon Doody and Fady Mansour, for the
    appellant

Hannah Freeman, for the respondent

Heard: December 14, 2021

On appeal from the convictions entered
    by Justice Rick Leroy of the Superior Court of Justice on May 29, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant was convicted of sexual touching of a person under the age
    of 16, invitation to sexual touching, sexual touching while in a position of
    trust, and uttering a death threat. The last three convictions were stayed
    pursuant to the principle in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524. The appellant appeals from his
    conviction.

[2]

The focus of the appellants appeal is narrow. The appellant argues that
    the trial judges use of a short statement he made to the police was tainted by
    legal error.

BACKGROUND

[3]

The convictions stemmed from allegations made by the appellants
    stepdaughter. She alleged that her stepfather had committed a very large number
    of sexual offences over a period of eight years, starting when she was 11 years
    old and ending as she was approaching the age of 19.

[4]

The complainant alleged that her stepfather committed the sexual
    offences at different family residences, as well as in his truck when he was
    driving his stepdaughter around on various matters. The trial judge stated that
    the complainant described about 468 incidents of sexual intercourse in the
    appellants truck, starting when she was 11 or 12 years old. Many of the
    incidents in the truck involved the appellant paying the complainant for sex,
    what the trial judge described in his reasons as the truck routine.

[5]

The complainant testified that the last sexual offence took place on
    July 8, 2014 when she was 18 years old. She recalled the specific date because
    the first anniversary of her relationship with her boyfriend was approaching.
    According to the complainant, the appellant asked her to work with him on a
    driveway sealing job. He picked her up in his truck. After finishing the job,
    he drove the complainant to a rural road, where he stopped the truck on the
    side of the road and asked whether she wanted to perform fellatio. She
    declined. The appellant then offered the complainant $50; she declined and
    asked for more compensation. The appellant agreed, went to the passenger side
    and engaged in sexual intercourse with the complainant. As put by the trial
    judge in his reasons: They dressed and [the appellant] handed [the
    complainant] the sum of $100 and said Nice doing business. He then drove the
    complainant home.

THE APPELLANTS STATEMENT

[6]

The complainant and her mother testified at the trial; the appellant did
    not. However, the trial judge admitted into evidence a very short statement the
    appellant had made to the police.

[7]

The statement arose in the following way. Charges for the offences
    against the complainant were first laid in Québec. A decision was then made to
    charge the appellant in Ontario. OPP Detective Jason Cholette left a message
    with the appellant, identifying himself and requesting a call back. The
    appellant returned the call. Detective Cholette advised him that there were grounds
    for his arrest and attempted to arrange for the appellants arrest and release.
    In the course of his conversation with Detective Cholette, the appellant made
    the following statement, as recorded by the officer in his notebook and as
    repeated by the trial judge in his reasons:

She is 19 not 10. I was sleeping with aunt, wifes sister. She
    was trying to get $4,000 from me. (hereafter the Statement)
[1]

[8]

The voluntariness of the appellants Statement was admitted. The trial
    judge was satisfied that the Statement had been made and the officers notes
    captured the main thrust. The trial judge rejected the defence submission
    that the Statement reflected the appellants spontaneous reaction when first
    confronted with the complainants allegations because by that time the appellant
    was already immersed in criminal proceedings in Québec regarding the same
    issues and therefore knew about the allegations.

[9]

At trial, the defence submitted that the Statement was exculpatory in
    that the appellant admitted to sexual activity when the complainant was 19
    years old, not younger. Although that admission might not be entirely helpful
    for the appellant, it was a sign of his credibility. While the conduct admitted
    might be morally problematic, it was not a criminal offence as it concerned
    conduct when the complainant was 19 years old.

[10]

The
    Crown argued that the Statement was not exculpatory but one that confirmed the
    complainants testimony that she had sexual relations with the appellant that
    continued beyond her 18
th
birthday. The Crown submitted that it
    would not be reasonable for the court to reject the complainants evidence
    about sexual relations with the appellant prior to the age of 18 but use the
    Statement to confirm her testimony about sexual relations after she turned 18
    years old. The Crown submitted:

There has been no part of the narrative
    whatsoever to suggest that all of a sudden, at the age of 18, [the complainant]
    experienced some turn in her relationship with [the appellant], not from [the
    complainant], and not from any of the other witnesses. To the contrary, this
    evidence supports what the Crown has submitted to the Court on repeated
    occasions, that there was a continuing pattern of inappropriate sexual abuse  Well,
    all sexual abuse is inappropriate, but sexual abuse by [the appellant] to [the
    complainant]. The fact that it continued, and that [the appellant] indicates
    that it was somehow consensual after the age of 18 adds nothing to any of the
    exculpatory aspects of the defence that he did not raise. My friend invites
    Your Honour to employ common sense, and the standard legally is beyond a
    reasonable doubt, but common sense does not lend to the finding that, all of a
    sudden, [the appellant], at the age of 18, started having sex with his
    stepdaughter, who he raised from the age  from the time that she was
    prepubescent. That defies common sense, Your Honour.

THE TRIAL JUDGES REASONS

[11]

The
    trial judge performed an extensive review and assessment of the evidence from
    the complainant and her mother. He was not persuaded to the legal standard by
    a number of the complainants allegations  including the
quid
    pro quo
incidents, the morning assaults, and rampant sexual assault
    in the home  due to uncertainties and inconsistencies in the complainants
    testimony, as well as the difficulty conceiving how the appellant evaded random
    detection given the large number of the allegations of sexual misconduct
    (approximately 1,339) made against him. The trial judge stated: My conclusions
    and uncertainty logically raise issues about the stand-alone reliability and
    credibility of this portion of [the complainants] evidence that was shown to
    be unreliable.

[12]

The
    trial judge continued by considering the effect of the Statement made by the
    appellant on his credibility assessment, stating:

That said the admission of sexual intercourse
    in [the complainants] 19
th
year in my view substantially
    rehabilitates such concerns for reliance on [the complainants] assertions
    about previous transactional sexual activity in the truck on the side of the
    road on the passenger side floor.

As unlikely as it is that [the appellant] and
    [the complainant] would even have the conversation, let alone sexual
    intercourse, if there was not an earlier routine is persuasive, circumstantial,
    corroborative evidence of an earlier routine. That this was a first such
    incident is implausible.
But for a routine of sexual
    engagement for pay this one-off incident is inconceivable
. It would mean:

1.       They converted a safe life-long
    parent/child relationship on its head in a moments whim.

2.       That [the complainant] would
    consent, let alone consider sexual intercourse with her stepfather with whom
    she had safely resided in and travelled hundreds of times to and from work, access
    and town on a whim.

3.       From her perspective she had the
    wits to negotiate about consideration for sexual favour in circumstances that
    would have been astonishing and traumatizing; and

4.       [The complainant] was about to
    celebrate her first anniversary with her boyfriend. This was the last thing she
    would tolerate as a first-time occurrence.

Notwithstanding my conclusions regarding the
    other allegations relative to the criminal standard of proof as noted, it does
    not mean the evidence is untrue. The burden of the Crown is closer to certainty
    than a balance of probabilities.

[The appellant] is presumed innocent. [F]or
    the reasons stated, I am not sure whether [the appellant] committed the
    criminal acts attributed to him other than those reported in the truck.

I accept as true [the complainants] central
    memories of [the appellant] sexually abusing her in the truck before she turned
    16.

I accept that the sexual abuse in the truck
    involved fellatio, cunnilingus and sexual intercourse and the one time [the appellant]
    threatened [the complainants] life were she to disclose.

GROUNDS OF APPEAL

[13]

The
    appellant submits the trial judge made two main reversible errors in his use of
    the Statement.

[14]

First,
    the trial judge improperly used the Statement to infer that since the appellant
    acknowledged having sexual relations with the complainant after she turned 19,
    he must have had sexual relations with her before that age. According to the
    appellant, that inference was the product of impermissible propensity reasoning
    and the application of stereotypical assumptions.

[15]

The
    second error was the failure of the trial judge to treat the Statement as
    exculpatory in part and conduct a proper analysis in accordance with the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

FIRST GROUND OF APPEAL: IMPERMISSIBLE REASONING ERRORS

[16]

The appellant submits that the trial judges reasoning ran afoul
    of three basic rules:

i.

The general rule against propensity reasoning. One rationale for
    the general rule excluding evidence about an accuseds bad character or
    propensity to have done acts of a discreditable nature on occasions other than those
    for which the accused is charged is the risk that the trier of fact might convict
    the accused based on bad personhood or infer guilt from general disposition or
    propensity, the so-called moral prejudice risk:
R. v. Handy
, 2002
    SCC 56, [2002] 2 S.C.R. 908, at para. 31;

ii.

The rule that judges must avoid
speculative
    reasoning that invokes common-sense assumptions that are not grounded in the
    evidence or appropriately supported by judicial notice:
R. v. JC
,
2021 ONCA 131, 70 C.R. (7
th
) 38, at para. 58;
    and

iii.

The rule
that factual findings, including
    determinations of credibility, cannot be based on stereotypical inferences
    about human behaviour. It is an error of law to rely on stereotypes or
    erroneous common-sense assumptions about how a sexual offence complainant is
    expected to act, to either bolster or compromise their credibility and equally
    wrong to draw inferences from stereotypes about the way accused persons are
    expected to act:
JC
, at para. 63.

[17]

We
    are not persuaded that the trial judge ran afoul of any of those rules.

[18]

Appellate
    review requires a functional and contextual reading of a trial judges reasons,
    reading them in context and as a whole, in light of the live issues at trial,
    and without finely parsing the reasons in a search for error:
R. v. G.F.
,
    2021 SCC 20, 71 C.R. (7
th
) 1, at para. 69. When read in that way, we
    do not see the trial judges use of the Statement as tainted by reversible
    error.

[19]

We
    do not read the trial judges reasons as concluding that since the appellant
    admitted to a sexual encounter with the complainant when she was 19 years old,
    he therefore had a propensity to engage in discreditable conduct from which one
    could infer that he had committed the alleged acts against the complainant when
    she was underaged.

[20]

Nor
    do we read his reasons as engaging speculative reasoning that invokes
    common-sense assumptions not grounded in the evidence or using
stereotypical inferences about human behaviour to make credibility
    determinations. As
this court explained in
JC
,
    the rule against ungrounded common-sense assumptions does not prevent a trial
    judge from relying upon common sense or human experience to identify inferences
    that arise from the evidence. Instead, the rule prohibits judges from using
    common sense or human experience to introduce new considerations, not grounded
    in the evidence, into the decision-making process, including considerations
    about human behaviour:
JC
, at paras. 59-61. For
    its part, the rule against stereotypical inferences
only
    prohibits inferences that are based on stereotype or prejudicial
    generalizations:
JC
, at para. 65.

[21]

As we read his reasons, the trial judge used the Statement as part
    of his evidence-based credibility assessment.
Towards the start of his
    assessment of the evidence, the trial judge summarized the significance of the
    Statement on his credibility assessment: the appellants acknowledgement
of the sexual encounter after [the complainant] attained the age of
    18 years is strong circumstantial corroborative evidence supporting the
    inference of the truck routine [the complainant] alleges.

[22]

Later in his reasons, the trial judge explained why he reached the
    conclusion that the incident admitted by the appellant in his Statement was not
    a one-off incident but the result of a multi-year routine of sexual engagement
    that the complainant had described in her evidence. As set out in the portion of
    his reasons reproduced at para. 12 above, the trial judge provided several
    reasons why he thought it was inconceivable, or improbable, that the admitted
    incident was a one-off incident. Those reasons were grounded in the evidence
    about the nature of the relationship between the appellant and the complainant,
    as described by the complainant in her evidence at trial. His use of the
    Statement to support the credibility of the complainants testimony about the
    sexual assaults in the truck was grounded in the evidence, not a product of speculative
    or other prohibited reasoning.

SECOND GROUND OF APPEAL: FAILURE TO
    CONDUCT A PROPER
W.(D.)
ANALYSIS

[23]

The appellant submits that the trial judge failed to recognize that the
    Statement had an exculpatory aspect, in that the appellant stated that the
    complainant was 19 years old, not 10, when he had a sexual encounter with her.
    As a result, the trial judge failed to perform a proper
W.(D.)
analysis.

[24]

We
    see no such error. The trial judge expressly recognized that the Statement was
    partially exculpatory. However, the trial judge attached little weight to
    the exculpatory aspect of the Statement as he regarded it more as an alternate
    narrative  namely, that the complainant was of age when consensual
    intercourse occurred  than a denial of the charges against him. It was open to
    the trial judge to assess the Statement in that way: Justice David Watt,
Watts Manual of Criminal Evidence 2021
(Toronto:
    Thomson Reuters, 2021), at §37.06.

[25]

As well, the trial judge found that because the Statement by the
    appellant when first confronted by Det. Cholette was not spontaneous, the
    circumstances surrounding the making of the Statement stripped it of any
    significant value to the appellant. We see no error in this reasoning. It was
    open to the trial judge to give the exculpatory portion minimal weight due to
    its lack of spontaneity. An exculpatory statement provided to the Detective
    after he had already been charged by the police in Quebec was not likely to be
    of much significant value.

[26]

Further,
    the trial judge clearly stated that the appellant was presumed innocent.
    Indeed, the trial judge was not prepared to accept that the allegations against
    the appellant involving conduct in the residences and the quid pro quo
    instances of sexual favours in return for rides into town or lunch money had
    been proved beyond a reasonable doubt.

[27]

While
    the elements of the trial judges
W.(D.)
analysis are found in
    different parts of his reasons, when read as a whole the reasons disclose a
    proper
W.(D.)
analysis. The reasons make it clear that the trial judge
    did not accept the appellants admission in the Statement of sexual intercourse
    as credible evidence denying the allegations against him or raising a
    reasonable doubt. As he stated in his reasons: The circumstances are such that
    very little weight can be attached to the statement [as] evidence of an
    alternate narrative. Later in his reasons the trial judge completed his
W.(D.)
analysis, explaining why he was convinced beyond
    a reasonable doubt of the appellants guilt with respect to the incidents in
    the truck  namely, the appellants Statement confirmed the complainants
    evidence of a lengthy history of sexual offences against her in the truck,
    often accompanied by the payment of money.

DISPOSITION

[28]

For the reasons set forth above, the appeal is dismissed.

E.E. Gillese J.A.

David Brown J.A.

S. Coroza J.A.

[1]
The transcript and officers notes record the first part of the
    Statement as: She was 19 not 10. At trial, Detective Cholette explained the
    context in which the appellant made the Statement:

I thanked
    him for calling me back, and I advised him that there was grounds for his
    arrest in regards to sexual assault allegations brought forward by [the
    complainant]. I advised him that if he would turn himself in that he would be
    released on a recognizance with a deposit, as he lives out of province, which
    is a practice for us, instead of just a promise to appear, if he attended. And
    if he wished not to attend, that I would seek a warrant for his arrest.
At
    that point, [the appellant] started speaking very quickly and started saying
    all sorts of things. I made a couple notes in my book. I didnt get the full  all
     everything that he was saying because it was numerous just things, I guess. Some
    of the two that I  that I had  that I remember directly because it related in
    regards to my investigation was one of them stated that she was 19 years old,
    not 10.
He continued to speak, and then one that I actually got in quotes,
    which is exactly what he had said, was, I was sleeping with her aunt, wifes
    sister., end quote. At that point, I stopped [the appellant], immediately. I
    sort of talked over him, and I advised him and cautioned him that what he says
    could be used in court. At that point, he acknowledged, and then stated another
    statement in regards to she was trying to get $4,000. So, everything that he
    was saying within those  just the statements that I had mentioned within my
    notes kind of corroborated what the investigation or some of the videos that I
    watched and what [the complainant] was saying, so he was providing an
    inculpatory statement against himself, which I tried to actually help him  cut
    him off, and I even advised him not to speak anymore, and if he had a lawyer,
    currently, as he was previously charged in Quebec, that he should bring the
    phone number with him when he comes into the detachment to turn himself in.
    [Emphasis added.]


COURT OF APPEAL FOR ONTARIO

CITATION: Canada Mortgage and Housing
    Corporation v. Hart, 2022 ONCA 51

DATE: 20220124

DOCKET: C69014

Strathy C.J.O., Harvison Young
    and Zarnett JJ.A.

BETWEEN

Canada Mortgage and Housing
    Corporation

Plaintiff (Respondent)

and

Melissa Hart and Patricia Hart

Defendants (Appellants)

Melissa Hart, acting in person

No one appearing for the appellant,
    Patricia Hart

Ian Houle, for the respondent

Heard: January 18, 2022 by video conference

On appeal from the order of Justice Antonio
    Skarica of the Superior Court of Justice, dated November 25, 2020.

REASONS FOR DECISION

[1]

The appellant, Melissa Hart, has not
    demonstrated error in the motion judges dismissal of her motion pursuant to r.
    59.06(2), seeking to set aside the respondents judgment against her on the
    ground of fraud or of facts arising or discovered after the judgment was
    granted.

[2]

She admits that the statement of claim was
    served on her in September 2010. She failed to defend and default judgment was
    obtained in 2010. The respondent took enforcement action and various amounts
    were recovered from the appellant between 2012 and 2018. The appellant was
    aware of the judgment, but took no steps to set it aside for many years. She
    commenced two separate actions against the respondent in 2017 and 2018,
    claiming damages as a result of the enforcement of the mortgage and the
    judgment. Both actions, which were based on substantially the same facts as she
    now relies upon, were dismissed under r. 2.1.01 as frivolous and vexatious.

[3]

We agree with the motion judge that the
    appellant failed to move with any diligence to set aside the default judgment
    and on that basis alone, we would dismiss the appeal. We agree however, that
    the appellant failed to identify any factual basis on which the judgment could
    be set aside on the basis of fraud or subsequently discovered facts. It is not
    enough to allege fraud, as the appellant repeatedly does. There must be cogent evidence
    to support fraud and she has adduced no such evidence.

[4]

The appeal is dismissed with costs to the
    respondent fixed at $5,000, inclusive of disbursements and all applicable
    taxes.

G.R.
    Strathy C.J.O.

A.
    Harvison Young J.A.

B.
    Zarnett J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Amrane c. Ontario (Enseignement
    supérieur et de la formation professionnelle), 2022 ONCA 52

DATE : 20220124

DOSSIER : C68452

Les juges Roberts, Harvison
    Young et Tzimas (
ad hoc
)

ENTRE

Tahar Amrane

Demandeur/Partie
    intimée

(Appelant)

et

Ministère
    de lEnseignement supérieur et de la

Formation professionnelle

Défendeur/Auteur de la motion

(Intimé)

Tahar Amrane, en personne

Daniel Mayer, pour l
intimé

Date de laudience : le
    25 novembre 2021

En appel de
    lordonnance de la juge Andra Pollak de la cour supérieure de justice de
    lOntario, en date du 11 mai 2020, dont les motifs figurent à 2020 ONSC 2200.

INSCRIPTION

[1]

Lappel porte sur une ordonnance radiant la
    déclaration de lappelant sans autorisation de modification et rejetant son
    action en vertu des règles 21 et 25 des
Règles de procédure civile
,
    R.R.O. 1990, Règl. 194, suite à la motion de lintimé.

[2]

Dans sa déclaration, lappelant présente des
    allégations de mauvais traitements infligés contre lui et dautres étudiants par
    certains professeurs et par lUniversité York, o
ù
il poursuivait ses études.

[3]

Il a porté ses plaintes au sein des instances
    administratives de lUniversité York, mais celles-ci furent rejetées. Son
    action antérieure contre lUniversité York fut aussi rejetée, ainsi que son
    appel à la Cour divisionnaire. Puisque lintimé refuse dintervenir dans sa
    dispute avec lUniversité York, lappelant a intenté cette action.

[4]

En tant que remèdes, lappelant réclame des
    dommages-intérêts et demande que lintimé soit obligé dentreprendre une
    enquête sur ses plaintes et les affaires de lUniversité York, et détablir un
    tribunal indépendant de lUniversité York pour entendre des plaintes de tous
    les étudiants universitaires.

[5]

La juge des motions a accueilli la motion de
    lintimé pour radier la déclaration de lappelant et rejeter son action. Elle a
    conclu quil était évident et manifeste que la déclaration de lappelant ne
    révélait aucune demande raisonnable et a refusé de lautoriser damender sa
    déclaration.

[6]

Lappelant répète les arguments que la juge des
    motions a rejetés. Nous ne percevons aucune erreur qui nous permettrait
    daccueillir lappel. Lintimé na pas de devoir de diligence envers les
    étudiants dinstitutions postsecondaires en ce qui concerne des plaintes universitaires
    et administratives comme celles de lappelant. En outre, lintimé ne peut pas
    intervenir pour régler des décisions de gestion et dadministration interne de
    lUniversité York, institution universitaire autonome. La décision dimmuniser les
    institutions universitaires est une décision de politique générale fondamentale
    qui ne peut pas faire lobjet dun recours en justice. En tout état de cause,
    lintimé nest pas responsable pour des actions de lUniversité York. Cette
    cour ne peut lobliger ni dintervenir dans les affaires internes
    universitaires ni détablir un régime indépendant pour entendre des plaintes
    quelconques.

[7]

Lappel est donc rejeté.

[8]

Lappelant devrait payer à lintimé des dépens
    de 2 000 $, y compris tous débours et taxes applicables.

« L.B.
    Roberts j.c.a. »

« A.
    Harvison Young j.c.a. »

« E.
    Ria Tzimas, J. (ad hoc) »


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Amrane c. Girlando, 2022 ONCA 53

DATE : 20220124

DOSSIER : C69193

Les juges Roberts, Harvison
    Young et Tzimas (
ad hoc
)

ENTRE

Tahar Amrane

Demandeur/Partie intimée

(Appelant)

et

Daniel Girlando

Défendeur/Auteur de la motion

(Intimé)

Tahar Amrane, en personne

Mathieu Bélanger, pour lintimé

Date de laudience : 25
    novembre 2021

En appel de lordonnance de la juge Andra
    Pollak de la Cour supérieure de lOntario, en date du 31 décembre 2020.

MOTIFS DE LA COUR

[1]

Lappelant, Tahar Amrane, porte en appel la
    décision de la juge Pollak. Elle a donné suite à la motion par écrit de
    lintimé, a radié la déclaration de lappelant sans autorisation de la modifier
    et a rejeté son action.

[2]

Lappelant a intenté son action contre lintimé,
    avocat dune partie opposée que lappelant poursuivait dans deux instances
    judiciaires séparées. Lappelant base son action contre lintimé sur les
    allégations que lintimé na pas répondu à ses courriels concernant la planification
    dune séance de médiation dans ces deux instances, et que lintimé a violé ses
    droits constitutionnels en appelant sa tunique « un habit »,
    méprisant sa religion et sa culture.

[3]

La juge des motions a conclu que lintimé
    navait aucune obligation de diligence envers lappelant. En labsence dune
    telle obligation, qui fonde une cause daction en négligence, elle a conclu que
    la déclaration de lappelant était radicalement et irrémédiablement défectueuse,
    de sorte quaucune modification de la déclaration ne servirait pas à corriger
    les défauts de laction telle que plaidée par lappelant. Elle a également
    conclu que la doctrine de limmunité absolue empêchait lappelant détablir une
    cause daction en délit contre lintimé. Finalement, la juge des motions a
    conclu que puisque les dommages-intérêts réclamés contre lintimé nétaient pas
    reliés à un manquement causé par lintimé, lappelant ne pouvait pas établir
    une cause daction contre lintimé.

[4]

Lappelant a répété les arguments quil a
    présentés devant la juge des motions devant cette court. Il a expliqué que la
    juge des motions na pas pris en considération les faits, les preuves, les
    doctrines, la jurisprudence, lordre éthique et déontologique qui règlemente
    les avocats, et la
Charte canadienne des droits et libertés
. Il essaie
    de lier le prétendu profond manque de respect démontré envers lui par lintimé
    à une relation de proximité, ce quil a décrit comme une proximité plutôt
    morale. En même temps, il reconnaît que lintimé ne le représentait pas.

[5]

Dans le cadre dun appel concernant une
    ordonnance de radiation dune déclaration en vertu de larticle 21.01(1)(b) des
Règles de procédure civile
, R.R.O., règl. 194, la norme de contrôle
    est celle de la décision correcte. En ce qui concerne la décision de la juge de
    motion de ne pas autoriser la modification de la déclaration, il sagit dune
    décision discrétionnaire. En labsence dune erreur manifeste et dominante ou
    dun exercice déraisonnable de cette discrétion, une cour dappel ne peut pas
    intervenir : voir
Conway v. The Law Society of Upper Canada
, 2016
    ONCA 72, 395 D.L.R. (4th) 100, au para. 16; et
Mortazavi v. University of
    Toronto
, 2013 ONCA 655, au para. 3.

[6]

Malgré ses arguments bien présentés, lappelant
    na pas réussi à démontrer d'erreurs dans la décision de la juge des motions
    qui permettent lintervention de cette cour.

[7]

La juge des motions a appliqué des principes de
    droit bien établis. La règle 21.01(1)(b) permet à une partie dans une action de
    demander à un ou une juge, par voie de motion, quun acte de procédure soit
    radié parce quil ne révèle pas une cause daction bien fondée. En lespèce,
    lappelant na pas établi une cause daction bien fondée contre lintimé.

[8]

En rendant sa décision, la juge des motions a
    bien compris les arguments de lappelant. Dans son analyse des arguments, elle
    na fait aucune erreur de fait ni de droit qui permet lintervention de cette
    cour.

[9]

Lappel est donc rejeté avec dépens de 1 900 $,
    y compris tous débours et taxes applicables, en faveur de lintimé.

« L.B.
    Roberts j.c.a. »

« A.
    Harvison Young j.c.a. »

« E.
    Ria Tzimas, J. (ad hoc) »


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Amrane c. Abraham, 2022 ONCA 54

DATE : 20220124

DOSSIER : M52696 (C68905)

Les juges
    Roberts, juge Harvison Young et Tzimas (
ad hoc
)

ENTRE

Tahar Amrane

Requérant

et

Carolee Abraham

Intimée

Tahar Amrane, en personne

Nicholas Rolfe, pour l
intimée

Date de laudience : le
    25 novembre 2021

INSCRIPTION

[1]

Le requérant, Tahar Amrane, présente cette motion
    pour réviser la décision de la juge Thorburn. Elle a rejeté la motion du
    requérant pour proroger le délai de réviser la décision de la juge Benotto. La
    juge Benotto avait rejeté sa motion en prorogation de délai pour mettre son
    appel en état.

[2]

Lappel du requérant porte sur une ordonnance du
    12 novembre 2020, rejetant sa poursuite en vertu des règles 21 et 25 des
Règles
    de procédure civile
, R.R.O. 1990, Règl. 194, suite à la motion de
    lintimée, Carolee Abraham.

[3]

La poursuite du requérant est contre lintimée,
    en tant quemployée de la ville de Toronto. Elle se base principalement sur les
    allégations concernant des services de la ville de Toronto disponibles en
    français : dautres employés (pas Mme Abraham) ne lui ont pas fourni de
    services en français ou des services fournis étaient inadéquats et tardifs. Le
    requérant sappuie sur plusieurs articles de
la
Charte canadienne des droits et libertés
pour réclamer des
    dommages-intérêts et des dommages punitifs. La juge de première instance avait
    déterminé que la poursuite navait aucune chance de succès, et quelle était
    frivole et vexatoire.

[4]

Le 15 décembre 2020, le requérant en a interjeté
    appel. Le requérant na pas mis son appel en état selon le délai prescrit par
    les règles. Par conséquent, le 17 mars 2021, le greffier de cette cour a rejeté
    son appel pour retard.

[5]

Le 6 mai 2021, la juge Benotto a rejeté la
    motion du requérant pour proroger le délai pour mettre son appel en état. Elle
    a considéré tous les facteurs pertinents et, comme la juge de première
    instance, elle a conclu que la poursuite navait aucune chance de succès pour
    les motifs suivants:

1.
Le requérant na fourni aucune preuve quil avait lintention de
    faire appel dans le délai requis.

2.
Le délai est long et il ny a pas dexplication pour le retard.

3.
La justice de laffaire exige que la prorogation soit refusée.
Lappel na pas de mérite parce que :

a.

Un individu ne peut être responsable des dommages en vertu de la
Charte
: voir
Vancouver (Ville) c. Ward
,
2010 CSC 27, [2010] 2
    R.C.S. 28.

b.

La
poursuite
contre
    la ville

est
    interdite par
la
Loi de 2006 sur la cité de Toronto
, L.O.
    2006, c. 11, annexe A ;

et aussi par
la
Loi de 1997 sur le
    programme Ontario au travail
, L.O. 1997, c. 25, annexe A
.

[6]

Le 22 juillet 2021, la juge Thorburn a rejeté la
    motion du requérant pour une prorogation de délai pour réviser la décision de
    la juge Benotto, en concluant que :

En vertu du fait que la déclaration qui était
    devant la juge Benotto et qui est devant moi est contre lindividu Carolee
    Abraham seul, quun individu ne peut être responsable des dommages en vertu de
    la
Charte
, la justice de laffaire exigeait que la prorogation soit
    refusée par la juge Benotto et la demande de délai pour réviser la décision est
    donc rejetée.

[7]

La juge Thorburn a fini par déterminer que
    laction naurait pas eu la moindre chance de succès. Dans ses motifs, elle
    explique que «  même si M. Amrane avait procédé contre la ville de
    Toronto, une telle poursuite contre la ville est interdite par la
Loi de
    2006 sur la cité de Toronto
, L.O. 2006, c. 11, annexe A et la
Loi de
    1997 sur le programme Ontario au travail
, L.O. 1997, c. 25. »

[8]

Le requérant répète devant nous les mêmes
    arguments que les juges Benotto et Thorburn ont rejetés et nous prie de les trancher
    de nouveau. Ce nest pas notre rôle. En ce qui concerne la révision,
    lintervention permissible de cette cour est circonscrite.

[9]

Une motion au tribunal pour réviser une décision
    rendue par une juge unique de cette cour est autorisée par s. 7(5),
Loi sur
    les tribunaux judiciaires
, L.R.O. 1990, Chapitre C.43. Une révision nest
    pas une détermination
de novo
. De plus, cette cour ne doit pas intervenir
    dans les décisions discrétionnaires, comme celles qui touchent les prorogations
    de délai, quen labsence derreur de droit ou principe:
Machado v. Ontario
    Hockey Association,
2019 ONCA 210, au par. 9.

[10]

Le requérant na pas précisé aucune erreur commise,
    soit par la juge Benotto ou la juge Thorburn, qui pourrait justifier
    lintervention de cette cour.

[11]

La motion est donc rejetée.

[12]

Le requérant devrait payer à lintimée des
    dépens de 2 000 $, y compris tous débours et taxes applicables.

« L.B.
    Roberts j.c.a. »

« A.
    Harvison Young j.c.a. »

« E.
    Ria Tzimas, J. (ad hoc) »


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Momprevil, 2022 ONCA 56

DATE: 20220125

DOCKET: C69648

Tulloch, Pardu and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bernard Momprevil

Appellant

Bernard
    Momprevil, self-represented

Avene
    Derwa, for the respondent the Ministry of the Attorney General

Brian
    Whitehead and Jason Kirsh, for the respondent the Ministry of the Solicitor
    General

Heard:
    January 13, 2022 via video conference

On appeal from the order of Justice
    Robert L. Maranger of the Superior Court of Justice dated February 1, 2021.

REASONS FOR DECISION

[1]

Mr. Momprevil appeals from the dismissal of his application, alleging
    that the prosecution amounted to an abuse of process and that the application
    judge erred in dismissing his
habeas corpus
application.
    He argues that his detention was unlawful because although he was originally
    arrested on three charges, a new information was sworn adding ten more charges.
    He says because he was never arrested on the new charges, he cannot be detained
    on them. Further, he did not receive the detention review hearings mandated by
    s. 525 of the
Criminal Code
, R.S.C. 1985, c.
    C-46, after 90 days in custody. The appellant thus argues that his detention
    was not lawful and he should have been released from custody.

[2]

The appellant was initially arrested on December 10, 2019. He was
    offered a bail hearing on December 13, but requested an adjournment, and was
    not ready for a bail hearing on shortly following dates. On December 23, 2019
    the appellant told the presiding justice: Well, were not going for bail, Your
    Honour. The appellants lawyer wanted to have discussions with the Crown and to
    review disclosure so the matter was adjourned from time to time. On January 28,
    2020 the appellant indicated that he wanted to swear an affidavit he had
    composed himself and give it to the Crown, and then go ahead with a bail
    hearing after the Crown had had a chance to review his affidavit. He was
    considering either hiring a new lawyer or appearing on his own behalf at a bail
    hearing with the assistance of duty counsel at some date in the future. He was
    accordingly scheduled for a bail hearing on February 5, 2020 but requested an
    adjournment. His counsel got off the record. A bail hearing was set for
    February 25, 2020, with or without counsel. He asked for and was granted an
    adjournment on that date. After notice from the custodial institution to the
    court about a detention review, a detention review was initially scheduled for
    March 16, 2020 but was postponed. This was at the outset of the COVID pandemic
    and there was some disruption of court proceedings. A bail hearing was held on
    April 14 and 16, 2020 and he was ordered detained. The correctional institution
    made a second request for a detention review on April 29, 2020. This was not
    scheduled, likely because of the recent bail hearing. The custodial institution
    did not request a further detention review 90 days after the bail hearing. The
    appellants counsel and the court planned to deal with a detention review on
    September 4, 2020 as the appellant was already scheduled to be in court that
    day. The matter was adjourned to September 29, 2020, when the appellants
    counsel withdrew.

[3]

The appellant brought an application for
habeas
    corpus
challenging his continued detention. The application was
    heard and dismissed on February 1, 2021. The application judge did not accept
    the appellants arguments regarding the replacement information and concluded
    that there was no loss of jurisdiction over the appellant. There were other
    concerns expressed by the appellant; for example, the appellant contends that
    the police were wrong to arrest him. The application judge was not persuaded
    that these concerns rose to the level of an abuse of process justifying a stay
    of proceedings.

[4]

He noted that the appellant had been in custody for a lengthy period and
    that the matter of detention reviews had to some extent fallen through the
    cracks, given the exigencies of COVID, the resulting closure of the courts, the
    appellants changes of counsel, together with his applications alleging abuse
    of process and other matters. He observed that a detention review should have been
    held in the fall of 2020.

[5]

The application judge, after considering
R. v.
    Pomfret
, 63 Man. R. (2d) 226 (C.A.), and
R. v.
    Myers
, 2019 SCC 18,
    [2019] 2 S.C.R. 105,
held that the failure to hold a detention
    review hearing in accordance with s. 525 of the
Criminal
    Code
in itself did not render the appellants detention unlawful,
    but that the remedy for that failure was to offer the appellant an immediate
    detention review. The appellant was not willing to proceed with an immediate
    review. The matter was adjourned to assignment court on February 5, 2021. The
    detention review was conducted on February 17, 2021 and the continued detention
    was held to be justified. On November 1, 2021 following a further bail review,
    release was denied.

[6]

The Crown has opposed release throughout and has indicated that it
    contemplates bringing dangerous offender proceedings if the accused is
    convicted.

[7]

The trial was set for January 2022, but we are advised that it has now
    been adjourned, with new counsel for the appellant attempting to set a date for
    the trial.

[8]

We do not accept the appellants arguments on appeal.

The replacement information

[9]

Firstly, dealing with the replacement information, the appellant was
    lawfully before the court on the initial information, and was physically
    present in the court. His presence enabled the presiding judge to deal with the
    replacement information which was not alleged to be defective:
R. v. Wilson
, 2015 SKCA 58, at para. 14;
R. v. David Lindsay (David-Kevin: Lindsay)
, 2006 BCCA
    150, 265 D.L.R. (4th) 193, at para. 20. As noted in
Wilson
,
    at para. 28: Where an information has been laid and the accused comes before
    the court by any means, the court has jurisdiction. The absence of process to
    compel the presence of the accused on the second information does not render
    that information a nullity:
R. v. Ladouceur
,
    2013 ONCA 328, 298 C.C.C. (3d) 414, at paras. 22-23.

[10]

The
    Crown relied on s. 523(1.1) at the hearing before the application judge:
Criminal Code
. This section essentially provides that if
    a person charged with an offence is the subject of a new information which
    charges the same offence or an included offence
while the accused is subject to an
    order for detention, then that detention

order
    applies to the new information.

[11]

However,
    the record before us does not clearly establish whether or not the appellant
    was the subject of any detention order at the time the new information was
    sworn, although he must have been remanded in custody. We have not had the
    benefit of full argument on the interpretation of order for detention in s.
    523(1.1):
Criminal Code
. In any event, for the
    reasons already given, we need not embark on that inquiry in this appeal as the
    presiding justice had jurisdiction over the person of the appellant.

Detention review hearings

[12]

Section
    525 of the
Criminal Code
provides that a
    custodial institution shall apply to a judge to fix a date for a hearing to
    determine whether or not an accused should be released from custody if the
    trial has not commenced within 90 days from the date the accused is initially
    taken before a justice under s. 503, or where there has been a previous
    detention review order or order detaining the accused, the date of the latter
    decision. The section stipulates that the person having custody of the detained
    adult shall make the application immediately after the expiry of the ninety
    days.

[13]

The
    court must set a hearing date to determine whether the continued detention of
    the accused is necessary to ensure the attendance of the accused, for the
    protection or safety of the public, or to maintain public confidence in the
    administration of justice. New evidence about changed circumstance of an
    accused, the impact of the passage of time, and any unreasonable delay are
    relevant factors. A detention review judge may make orders to expedite the
    trial:

Myers
, at para. 4.

[14]

As
    noted in
Myers
,
at para. 24, the purpose of s. 525 of
    the
Criminal Code
is to prevent accused
    persons from languishing in pretrial custody, and to require judicial oversight
    of lengthy pretrial detention at specified intervals. While the Supreme Court indicated
    that a trial court must act to provide a detention review without delay, there
    is no suggestion that the detention of an accused automatically becomes unlawful,
    solely because of the expiry of the 90-day period. As Justice Gary Trotter notes
    in
The Law of Bail in Canada
, 3rd ed.
    (Toronto: Carswell, 2010), at §8:44:

the mere expiration of the
    requisite time period does not automatically lead to release by way of habeas
    corpus.Courts further held that, to obtain relief by way of
habeas corpus
, the accused must also demonstrate
    oppressive or unreasonable delay in bringing the matter to court or a delay of
    such magnitude that one could infer deliberation or design on the part of the
    custodian. [Footnotes omitted.]

[15]

The
    court must act promptly to set a hearing date for the first available date,
    although adjournments might sometimes be necessary to promote the interests of
    justice and the purposes underlying the statutory provision: Trotter, at §8:40

[16]

The
    court in
Myers
cannot have been unaware of
R. v. Pomfret
and in any event did not overrule it. In
Pomfret
, Huband J.A. observed, at p. 59:

I do not think that the continued
    detention of an accused becomes unlawful,
ipso facto
,
    by virtue of the effluxion of the 90-day period. The accused is held in jail by
    virtue of the initial warrant of committal. It has no fixed termination date,
    and does not become spent by the mere passage of time. The keeper of the jail
    is commanded to keep the accused in custody until he is delivered by due
    course of law. The
Criminal Code
of Canada
    contemplates that the warrant for committal will continue extant after the
    90-day period has run its course. By the very terms of s. 525, the application
    for bail review cannot be made until after the 90 days has expired, and it is
    obvious that the application itself might not be heard for some time thereafter.
    In short, the warrant for committal does not automatically lapse due to the
    effluxion of time.

[17]

In
Pomfret
, the court observed that a jailer
    unwilling to proceed with the required s. 525 hearing could be compelled to
    proceed by way of mandamus:
Criminal Code
.

[18]

We
    agree with the reasoning in
Pomfret
that the
    detention does not become unlawful solely on the basis that the 90-day period
    has passed without a detention review.

[19]

As
    the application judge noted, the appellant should have had a detention review
    hearing by the fall of 2020, well before the return date of his
habeas corpus
application on February 1, 2021. We agree,
    however, that the appropriate remedy for this failure was an immediate
    detention review hearing, an offer the appellant expressly declined. The
    detention review hearing ultimately took place on February 17, 2021.

[20]

The
    accused has raised other issues about the reasonableness of his arrest and the
    quality of the investigation. These grounds were not pursued in detail and the
    application judge did not err in concluding that oblique references to these
    issues did not justify a stay of proceedings before trial as it was not a
    matter of the clearest of cases justifying a stay for abuse of process:
R. v. Babos
, 2014 SCC 16, [2014] 1 S.C.R. 309, at para
    31.

[21]

Accordingly,
    the appeal is dismissed.

M.
    Tulloch J.A.

G.
    Pardu J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Extreme Venture Partners Fund I LP v. Varma, 2022
    ONCA 57

DATE: 20220121

DOCKET: C67057, C67062, C67364 & C67376

Hourigan, Huscroft and Coroza JJ.A.

BETWEEN

DOCKET:
    C67057

Extreme Venture Partners Fund
    I LP, EVP GP Inc.,

Ravinder Kumar Sharma,
    Imran Bashir and Kenneth Teslia

Plaintiffs/Defendants by Counterclaim

(Respondents)

and

Amar
    Varma
,
Sundeep Madra
,
Varma Holdco Inc.
,

Madra
    Holdco Inc.
,
Chamath Palihapitiya
,
El Investco I Inc.
,

Extreme Venture Partners
    Annex Fund I LP, and EVP GP Annex Fund I Inc.

Defendants/
Plaintiffs by Counterclaim

(
Appellants
/
Respondents
)

AND BETWEEN:

DOCKET:
    C67062

Extreme Venture Partners Fund
    I LP, EVP GP Inc.,

Ravinder Kumar Sharma,
    Imran Bashir And Kenneth Teslia

Plaintiffs/Defendants by Counterclaim

(Respondents/Appellants by Cross-Appeal)

and

Amar
    Varma
,
Sundeep Madra
,
Varma Holdco Inc.
,

Madra
    Holdco Inc.
, Chamath Palihapitiya, El Investco I Inc.,

Extreme Venture Partners Annex
    Fund I LP,

EVP GP Annex Fund I Inc.,
    Cassels Brock & Blackwell LLP, and

Seven Hills Group LLC

Defendants/Plaintiffs by Counterclaim

(
Appellants
/
Respondents by Cross-Appeal
)

AND BETWEEN:

DOCKET: C67364

Extreme Venture Partners Fund
    I LP, EVP GP Inc.,

Ravinder Kumar Sharma,
    Imran Bashir And Kenneth Teslia

Plaintiffs/Defendants by Counterclaim

(Respondents)

and

Amar
    Varma
,
Sundeep Madra
,
Varma Holdco Inc.,

Madra
    Holdco Inc.
, Chamath Palihapitiya, El Investco I Inc.,

Extreme Venture Partners Annex
    Fund I LP,

EVP GP Annex Fund I Inc.,
    Cassels Brock & Blackwell LLP, and

Seven Hills Group LLC

Defendants/Plaintiffs by Counterclaim

(
Appellants
)

AND BETWEEN:

DOCKET:
    C67376

Extreme Venture Partners Fund
    I LP, EVP GP Inc.,

Ravinder Kumar Sharma,
    Imran Bashir And Kenneth Teslia

Plaintiffs (Respondents)

and

Amar Varma, Sundeep Madra,
    Varma Holdco Inc.,

Madra Holdco Inc.,
Chamath Palihapitiya
,
El Investco
    I Inc.
,

Extreme Venture Partners Annex
    Fund I LP,

EVP GP Annex Fund I Inc.,
    Cassels Brock & Blackwell LLP, and

Seven Hills Group LLC

Defendants (
Appellants
)

Jonathan Lisus, Crawford Smith, Nadia Campion, Vlad
    Calina and John Carlo Mastrangelo, for the appellants Amar Varma, Sundeep
    Mandra, Varma Holdco Inc. and Madra Holdco Inc.

Andrew Brodkin, David E. Lederman and Daniel Cappe, for
    the appellants Chamath Palihapitiya and El Investco 1 Inc.

Won J. Kim, Megan B. McPhee, Aris Gyamfi and Rachael
    Sider, for the respondents

Heard: in writing

On appeal from the orders of Justice Barbara A. Conway of
    the Superior Court of Justice, dated May 14, 2019, July 24, 2019, and February
    4, 2020, and the judgment of Justice Barbara A. Conway of the Superior Court of
    Justice, dated May 14, 2019.

ENDORSEMENT

[1]

On December 1, 2021 we released Reasons for Decision wherein the
    Respondents − Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar
    Sharma, Imran Bashir, and Kenneth Teslia − were successful in resisting
    an appeal commenced by Amar Varma and Sundeep Madra, along with their
    respective holding companies, Varma Holdco Inc. and Madra Holdco Inc (Madra
    Holdco), collectively the "Varma/Madra Appellants." They were also successful
    on the appeal commenced by Chamath Palihapitiya and his holding company, El Investco
    1 Inc. collectively the Palihapitiya Appellants. In addition, the Respondents
    succeeded on their cross-appeal.

[2]

We invited the parties to make written submissions on the issue of costs
    if they were unable to reach an agreement. All parties filed written
    submissions and on January 6, 2022 we awarded the Respondents their costs of
    the appeals in the total amount of $300,000. The Palihapitiya Appellants and
    Varma/Madra Appellants were each ordered to pay $150,000 of the total costs
    award.

[3]

On January 10, 2022, counsel for the Respondents wrote to the court and sought
    a variation of the trial costs award. Counsel submitted that because his
    clients succeeded on their cross-appeal, they beat their Rule 49 settlement
    offer and were entitled to a costs award on a higher scale:
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. Counsel for the Palihapitiya Appellants,
    writing on behalf of all the appellants, opposed the request.

[4]

Even assuming we have the authority to vary our decision, we decline to
    do so. The Respondents did not appeal or seek leave to appeal the trial costs,
    even though they knew that they would beat their Rule 49 settlement offer if
    they succeeded on their cross appeal:
Rules of Civil Procedure
. Further,
    the Respondents did not include a request to vary the trial costs award in
    their notice of cross-appeal or in their supplementary notice of cross-appeal. Finally,
    the Respondents did not raise the issue in oral argument or in their written
    submissions on costs.

[5]

The request for a variation is denied.

C.W. Hourigan J.A.

Grant Huscroft J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2650971 Ontario Inc. v. Shameti,
    2022 ONCA 62

DATE: 20220124

DOCKET: C69565

Pardu, Roberts and Miller JJ.A.

BETWEEN

2650971
    Ontario Inc. and

Kouraj Rahimi-Aloughareh a.k.a.
    Cyrus Rahimi

Applicants

(Respondents)

and

Durim Shameti and Anila Shameti

Respondents

(Appellants)

Harneet Singh and Obaidul Hoque, for
    the appellants

Michael A. Katzman, for the respondents

Heard: January 20, 2022 by
    video conference

On appeal
    from the judgment of Justice Jana Steele of the Superior Court of Justice dated
    June 1, 2021.

REASONS FOR DECISION

[1]

This is an appeal from a judgment ordering the
    sale of a property that the parties had purchased for renovation and resale
    (the investment property) in furtherance of the parties joint venture.

[2]

There was no dispute that both sides made
    financial contributions to the down payment on the investment property. The investment
    property was purchased, and title was taken in the names of the appellants, who
    are spouses. The application judge found that the investment property was held
    by the appellants as bare trustees for the benefit of the corporate respondent,
    2650971 Ontario Inc., or for the three parties to the joint venture, the
    respondent, Mr. Rahimi, and the appellants.

[3]

The parties joint venture foundered. The
    respondents brought an application for declaratory relief respecting the title
    to and ownership of the investment property, and an order for partition and
    sale. The application judge made an order for the sale of the investment
    property and a reference to a Master (now Associate Justice) of the Superior
    Court to determine the apportionment of the sales proceeds and the disposition
    of costs as between the parties.

[4]

The disposition of this appeal turns on a
    preliminary jurisdictional issue. Section 7 of the
Partition Act
,
    R.S.O. 1990, c. P.4, provides that [a]n appeal lies to the Divisional Court
    from any order made under this Act. On August 3, 2021, the Executive Legal Officer
    of this court alerted the parties to the possible jurisdictional issue that s.
    7 of the
Partition Act
may apply to this appeal such that the appeal
    lies to the Divisional Court, and asked them to be prepared to address the
    preliminary issue concerning this courts jurisdiction to hear the appeal.

[5]

The appellants maintain that this court has
    jurisdiction to hear this appeal because the application judges judgment
    finally disposed of the application. The order for sale of the investment
    property was only part of the relief sought by the respondents. As the issue of
    partition and sale was intertwined with other issues that were finally disposed
    of, this court has jurisdiction to hear the appeal.

[6]

The respondents acknowledge that this appeal
    lies within the jurisdiction of the Divisional Court; however, they have no
    objection if this court agrees to hear the appeal.

[7]

We do not agree that this court has
    jurisdiction to hear this appeal. The parties cannot confer jurisdiction on
    this court by agreement.

[8]

Section 7 of the
Partition Act
plainly stipulates that an appeal from an order made under the Act lies to the
    Divisional Court. The judgment under appeal clearly ordered the sale of the
    parties investment property pursuant to the
Partition Act
. This
    remedy was expressly sought in the respondents application. That the
    respondents also included other issues and heads of relief in their application
    does not alter the fact that the judgment made was with respect to matters that
    fall squarely under the
Partition Act: Webster v. Groszman
, 2021 ONCA
    55, at para. 8.

[9]

As a result, in accordance with s. 7 of the
Partition
    Act
, an appeal from the judgment lies to the Divisional Court. This court
    has no jurisdiction to hear the appeal.

Disposition

[10]

The appeal is therefore quashed.

[11]

The appellants shall pay the respondents their appeal costs
    in the amount of $12,000.00, inclusive of disbursements and applicable taxes.

G.
    Pardu J.A.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.M., 2022 ONCA 63

DATE: 20220126

DOCKET: C68124

Paciocco, Nordheimer and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.M.

Appellant

Howard L. Krongold
, for the appellant

Gregory Furmaniuk
, for the respondent

Heard: January 13, 2022 by
    video conference

On appeal from the conviction entered by
    Justice Ronald A. Minard

of the
    Ontario Court of Justice, on September 20, 2019
.

Sossin J.A.:

OVERVIEW

[1]

After a five-day trial, the appellant was
    convicted of sexual interference and sexual assault of a 14-year-old
    complainant.

[2]

The appellant was sentenced to 14 months in
    custody, along with a DNA order under ss. 487.04 and 487.051(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, an order under s. 490.013(2)(b) of the
Code
to comply with the
Sex Offender Information Registration Act
for 20
    years,

and prohibitions against possessing weapons and contacting the
    complainant.

[3]

The complainant was a friend of the appellants
    daughter. She alleged that the assault took place at a construction site where
    the appellant worked and where he had arranged for the complainant to work for
    the day.

[4]

During a recess in the trial, the trial judge
    was approached by Linda Pearson, a sitting justice of the peace. The justice of
    the peace had access to the area behind the courtroom reserved for judges and
    court staff. She approached the trial judge there. No one witnessed the
    exchange between the trial judge and the justice of the peace, but the justice
    of the peace had advised trial Crown of her intention to approach the trial
    judge.

[5]

According to the trial judge, the justice of the
    peace informed him that she was the mother of M.M.s ex-spouse and the
    grandmother of M.M.s three children. She sought the trial judges blessing
    to attend the trial. The trial judge answered that anyone was free to observe
    the trial in the courtroom. The justice of the peace left the judges chambers,
    but returned shortly after to tell the trial judge he could carry on without
    her because M.M. did not want her watching his trial.

[6]

Upon resuming, the appellant sought a mistrial
    on the basis that the
ex parte
discussion between the justice of the
    peace and the trial judge gave rise to a reasonable apprehension of bias.

[7]

The trial judge dismissed the application for a
    mistrial. He acknowledged that the discussion with the justice of the peace had
    been unfortunate and should not have occurred, but concluded that he was able
    to disabuse himself of the encounter.

[8]

In convicting the appellant, the trial judge
    applied the framework articulated in
R. v. W.(D.
)
,
    [1991] 1 S.C.R. 742. When considering the first branch of the
W.(D.
)
framework,
    the trial judge rejected the appellants evidence denying the substance of the
    complainants allegations. Specifically, the trial judge rejected the
    appellants explanation for sending late night text messages to the
    complainant, noting that the appellant agreed with the suggestion that texting
    the complainant in that way and at that time was not normal.

[9]

The trial judge then briefly considered the
    second branch of the
W.(D.)
framework, where he concluded that he was
    not left in a reasonable doubt by the accuseds testimony. Finally, when
    considering the third branch of the
W.(D.)
framework, the trial judge
    concluded that the complainants evidence was sufficiently credible and
    reliable to prove the case against the appellant beyond a reasonable doubt.

ANALYSIS

[10]

In his Notice of Appeal, the appellant raised
    two grounds of appeal relating to the conviction: first, that the trial judge
    erred in not granting the application for a mistrial based on a reasonable
    apprehension of bias in light of his
ex parte
discussions with the
    justice of the peace; and second, that the trial judge erred in the application
    of the
W.(D.)
framework.

[11]

In oral submissions, the appellant stated he is
    no longer advancing the ground of appeal relating to the trial judges
    application of the
W.(D.)
framework, and is now pursuing only the
    ground of appeal relating to the mistrial.

[12]

The Notice of Appeal also included an appeal
    against the sentence imposed but this ground of appeal was not pursued by the
    appellant.

A.

Did the Trial Judge err in dismissing the
    application for a mistrial?

[13]

The appellant argues that the trial judge erred
    in finding that his
ex parte
discussion with the justice of the peace
    did not lead to a reasonable apprehension of bias. While the appellant takes no
    issue with the actual impartiality of the trial judge and acknowledges the high
    burden to displace the presumption of impartiality, he contends that a
    reasonable person would conclude that the trial judge would not decide the case
    fairly based, in part, on the following elements of the
ex parte
discussion:

·

the communication was with a judicial officer of
    the same court and took place in the area of the courthouse reserved for
    judicial officers and court staff;

·

there was no reason for the justice of the peace
    to approach the trial judge other than to communicate her discernable interest
    in the case;

·

the
ex parte
communication took place
    during the trial; and

·

the appellant faced serious charges where his
    credibility was a central issue in the trial.

[14]

In short, the appellant argues that the justice
    of the peace inserted herself into the trial in a way that destroyed the appearance
    of fairness.

[15]

The Crown opposed the application for a mistrial,
    and argues before this court that the trial judge responded appropriately to a situation
    which was not of his making by taking remedial steps to preserve fairness.
    These included putting his entire recollection of the encounters on the record
    and inviting submissions from the parties on whether the encounters created a
    reasonable apprehension of bias.

(1)

The Reasonable Apprehension of Bias Principle

[16]

The application for a mistrial turned on whether
    the encounter between the justice of the peace and the trial judge gave rise to
    a reasonable apprehension of bias, when considered as a whole and in all of the
    circumstances.

[17]

The reasonable apprehension of bias is a
    principle of fairness. It relates not to the propriety of a judges or a third
    partys conduct, but rather to whether, in the eyes of a reasonable observer,
    the accused is able to receive a fair trial in light of such conduct.

[18]

The test for a reasonable apprehension of bias
    is long-standing, and was first set out by de Grandpré J. in
Committee for
    Justice and Liberty v. National Energy Board
, [1978] 1 S.C.R. 369, at p.
    394 (dissenting):

what would an informed person, viewing the
    matter realistically and practically  and having thought the matter through
    conclude. Would he think that it is more likely than not that [the
    decision-maker], whether consciously or unconsciously, would not decide fairly.
    [Citation omitted.]

[19]

The inquiry into whether a decision-makers
    conduct creates a reasonable apprehension of bias, as a result, is inherently
    contextual and fact-specific. Further, a presumption of impartiality, not
    easily displaced, imposes a high burden on the party alleging bias:
Yukon
    Francophone School Board, Education Area #23 v. Yukon (Attorney General)
,
    2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26.

[20]

At the outset of his reasons dismissing the
    application for a mistrial, the trial judge reiterated the principle that
    justice must not only be done but be seen to be done. With this principle in
    mind, he put the question before him this way: [W]ould the reasonable person
    out there knowing the facts conclude that circumstances that happened were
    sufficiently inappropriate that it compromises at least the latter portion of
    that principle, that justice must be seen to be done[?]

[21]

In my view, the trial judge properly instructed
    himself on the test to be applied on a mistrial application. He correctly focused
    his inquiry on the appearance of bias and the paramount importance of fairness
    to the appellant.

(2)

Applying the Reasonable Apprehension of Bias Principle
    in this Case

[22]

Applying the principle set out above to this
    case, it is important to highlight that both parties agree that the trial judge
    did not act improperly when approached by the justice of the peace.

[23]

The trial judge acknowledged that he was caught
    off guard by the encounter, and that he had never been approached in this way
    during a trial over his 26-27 years on the bench. He stated that, in hindsight,
    counsel for the Crown should have advised the justice of the peace not to speak
    with him in the midst of trial, and that it was not appropriate for her to
    attend. The trial judge also conceded that, although she had the right to do
    so, he himself should have advised the justice of the peace that it would be unwise
    for her to attend the trial given her position and relationship with the appellant.

[24]

While he might have acted differently with the
    benefit of hindsight, the trial judge concluded that, as an experienced jurist,
    the encounters would in no way influence his ability to disabuse his mind of
    what had occurred and uphold the presumption of innocence to which the appellant
    was entitled.

[25]

Finally, the trial judge considered the
    practical implications of a potential mistrial. He noted the additional delay
    which a mistrial would create. He highlighted the difficulty experienced by the
    complainant, who was then in the midst of testifying, and the risk that a new
    trial, including the requirement to testify again before a different judge,
    would significantly worsen her emotional state.

[26]

Weighing all of these factors, the trial judge
    concluded that the encounter was unfortunate and should not have occurred,
    but it did not compromise the fairness of the trial, and that the application
    for a mistrial should be dismissed.

[27]

Neither party was able to cite a case where a
    judges
ex parte
communication with another judicial officer was
    directly at issue. Rather, each party relies on cases involving
ex parte
communications between judges and counsel, parties or others.

[28]

The Crown relies on
R. v. Arnold
,
    [2000] O.J. No. 3749 (C.A.), in which this court affirmed a lower court
    decision finding no reasonable apprehension of bias where a judge had
    communicated with Crown counsel outside the presence of the defence. In that
    case, the application judge concluded that it is not the mere fact of an
ex
    parte
communication that gives rise to a reasonable apprehension of bias
    but rather the content of such communication. Specifically, citing the judgment
    of McLachlin and Major JJ. in
R. v. Curragh Inc.
, [1997] 1 S.C.R. 537,
    at para. 104 (dissenting, but not on this point), the application judge found
    that the content did not create the appearance of bias because it would not
    sway the court to one partys position.

[29]

By contrast, this court found a reasonable
    apprehension of bias in
R. v. C.D.H.
, 2015 ONCA 102, 125
    O.R. (3d) 225, where a trial judge had an
ex parte
conversation
    with the investigating police officer, because the content of that conversation
    involved a specific view expressed by the trial judge that appeared adverse to
    the complainant in the alleged crime.

[30]

While I accept the importance of considering
    whether the content of
ex parte
communications may create the
    appearance of favouring one party over another, there are circumstances where
    the mere fact of
ex parte
communications may itself create an
    appearance of bias. Where, as here, a judicial officer approaches a judge in
    order to make the judge aware of her personal interest in the case, the
    appearance of impartiality may be in doubt, depending on how the trial judge
    responds.

[31]

In this case, had her conduct stood alone, the
    actions of justice of the peace may well have given rise to an appearance of
    bias. The content of the justice of the peaces comments revealed both that she
    had a vested interest in the case as the grandmother of the appellants children,
    and an acrimonious relationship with the appellant. A reasonable person could
    certainly see this communication as swaying the trial judge to disfavour the appellant
    in a case where credibility would be a significant issue.

[32]

However, as indicated, while a third partys
    conduct may be relevant to the analysis, the focus of the inquiry into a
    reasonable apprehension of bias is the conduct of the judge. In this case, had
    the trial judge done nothing but acknowledge this encounter, a reasonable
    apprehension of bias may well have remained.

[33]

The trial judge did not, however, do nothing in
    the face of these encounters. Rather, he took deliberate steps to mitigate the appearance
    of unfairness that this unwelcome encounter might have caused, including the
    following:

·

he put his recollection of the two encounters
    with the justice of the peace on the record within minutes of the second
    encounter;

·

he heard and considered submissions from counsel
    on whether the encounters justified a mistrial; and

·

he explained in his reasons why he believed he
    could remain impartial notwithstanding the encounters.

[34]

The trial judge reasoned that, while the
    encounter may mean that the appellant would not receive a perfect trial, it
    would not mean, when viewed from the perspective of a reasonable observer, that
    the appellant would not receive a fair trial.

[35]

The justice of the peaces decision to approach
    the trial judge in the midst of the trial to make her interest in the case
    known showed a concerning lapse of judgment on her part. In light of the
    remedial steps subsequently taken by the trial judge, however, a reasonable
    observer would not be more likely than not to conclude that the trial judge was
    biased.

[36]

Therefore, the trial judge did not err in
    dismissing the application for a mistrial.

DISPOSITION

[37]

For the reasons set out above, there was no
    error by the trial judge in his dismissal of the appellants application for a
    mistrial.

[38]

Accordingly, the appeal is dismissed.

Released:
January 26, 2022 David M. Paciocco J.A.

L. Sossin J.A.

I agree.
David
    M. Paciocco J.A.

I
    agree. I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Homes of Distinction (2002) Inc. v. Adili, 2022 ONCA 64

DATE: 20220126

DOCKET: C69392, C68726 & C68728

Huscroft, Trotter
    and Coroza JJ.A.

DOCKET: C69392

BETWEEN

Homes of Distinction (2002) Inc.

Plaintiff (Respondent)

and

Elisa
    Angela Adili
and the Toronto-Dominion Bank

Defendants (
Appellant
)

AND BETWEEN

Elisa Angela Adili

Plaintiff by Counterclaim

(Appellant)

and

Homes of
    Distinction (2002) Inc.

Defendant to the
    Counterclaim

(Respondent)

DOCKET: C68726

BETWEEN

Anthony Adili and Elisa Angela
    Adili

Plaintiffs (Appellants)

and

Homes
    of Distinction (2002) Inc.
,
Roberto Venier
and
    City of Hamilton

Defendants (
Respondents
)

AND BETWEEN

Homes of Distinction (2002)
    Inc., and Roberto Venier

Plaintiffs by Counterclaim

(Respondents)

and

Anthony Adili and Elisa Angela
    Adili

Defendants to the
    Counterclaim

(Appellants)

DOCKET: C68728

BETWEEN

Anthony Adili and Elisa Angela
    Adili

Plaintiffs (Appellants)

and

Homes
    of Distinction Inc.
,
Roberto Venier
and City
    of Hamilton

Defendants (
Respondents
)

AND BETWEEN

Homes of
    Distinction Inc., and Roberto Venier

Plaintiffs by Counterclaim

(Respondents)

and

Anthony
    Adili and Elisa Angela Adili

Defendants to the Counterclaim

(Appellants)

Daniel Fridmar, for the appellants

David Thompson and Michael
    Grant, for the respondents

Heard: January 12, 2022 by
    video conference

On appeal from the judgment of
    Justice Richard A. Lococo of the Superior Court of Justice, dated September 16,
    2020, with reasons reported at 2020 ONSC 5344.

REASONS FOR DECISION

[1]

In 2007, the appellants decided to renovate
    their home. They contracted with the respondent, a builder who carried on
    business as Homes of Distinction (2002) Inc. (HoD 2002). The builders
    principal is the respondent Roberto Venier.
[1]

[2]

The parties reached an oral agreement for the
    project in the spring of 2008. Regrettably, the relationship between the
    parties fell apart during the project and by 2010, HoD 2002 withdrew its
    services and registered a construction lien on the property to secure
    outstanding payments for work completed. For their part, the appellants advised
    HoD 2002 that the contract was terminated and alleged that its work was
    deficient and non-compliant with the Ontario
Building Code
, O. Reg. 332/12.
    The appellants hired other contractors to complete the renovation and to
    rectify some of the alleged deficiencies.

[3]

Litigation ensued. The respondents commenced a
    construction lien action and sought to recover from the appellants the balance
    claimed as owing. The appellants denied they owed anything and brought their
    own action, alleging incomplete and deficient work and seeking over $1,450,000
    from the respondents for amounts they incurred or would need to incur to
    complete the project and rectify the respondents work. The appellants also
    claimed that the City of Hamilton was negligent because its building department
    personnel were involved in issuing a building permit and inspecting the
    project.
[2]

[4]

The actions were heard over 43 days at trial.
    Ultimately, the trial judge found the appellants liable to the respondents for
    most of the amount claimed. The trial judge dismissed the Adilis claims
    against the respondents and the City.

[5]

First, the trial judge found that there was an
    oral contract between HoD 2002 and the appellants. Second, the trial judge
    found the parties had not agreed to an enhanced standard of construction that
    went beyond the requirement to perform work in a good and workmanlike manner
    and meet the mandatory requirements in the
Building Code
. Third, he
    found that there was no meeting of the minds with respect to the specific
    level of the allowances but that the parties agreement contemplated some
    reasonable limit for expenditures, and that excesses of these amounts would be
    the appellants responsibility as an extra. Fourth, he found that the
    appellants breached the building contract by not paying. Finally, he found that
    the respondents had not breached the contract and, after reviewing the evidence,
    held that the respondents were not liable for alleged deficiencies.
[3]

[6]

On appeal, the appellants advance several arguments.

[7]

First, the trial judge made a palpable and
    overriding error in disregarding uncontroverted expert evidence that HoD 2002 breached
    the Ontario
Building Code
when finding that HoD 2002 complied with the
    standard of construction required by the building contract. We disagree.

[8]

At trial, the appellants proffered the expert
    evidence of Giancarlo Lancia whom they retained to provide opinion evidence
    with respect to engineering and
Building Code
matters. Mr. Lancias
    evidence was the lynchpin of the appellants argument regarding structural
    deficiencies and
Building Code
non-compliance. The respondents
    challenged this evidence and proffered their own engineering expert. In the
    end, the trial judge found that Mr. Lancia had assumed an advocacy role for the
    appellants which he found was inconsistent with his role as an independent
    expert witness. In contrast, he found that the respondents expert was
    independent and preferred the evidence of the respondents expert.

[9]

We see no palpable and overriding error in the
    trial judges treatment of the expert evidence. The trial judge provided cogent
    reasons for why he discounted the evidence of Mr. Lancia. As we see it, the
    trial judge placed little to no weight on Mr. Lancias evidence about
Building
    Code
violations. That was his call to make and his credibility findings
    attract deference. In the end, the trial judge assessed Mr. Lancias
    credibility and reliability in the context of the evidence as a whole and
    concluded that he was less reliable than the respondents expert. We cannot
    intervene simply because the appellants ask us to weigh the evidence
    differently and arrive at alternative factual findings:
Housen v. Nikolaisen
,
    2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58.

[10]

Mr. Lancias opinion evidence was a significant
    aspect of the appellants case. The trial judges conclusion that the
    appellants had not proven the
Building Code
breaches as asserted
    flowed naturally from the adverse finding he made against their expert.

[11]

We find no merit to this first ground of appeal.

[12]

Second, the appellants argue that the trial
    judge erred in relying on a previous contract that the parties had entered into
    in 1995 when interpreting the scope of allowances in the present building
    contract. We are not persuaded by these submissions.

[13]

We see no error in the trial judges reliance on
    the evidence of the 1995 contract. The trial judge held that there was no
    meeting of the minds as to the specific level of allowances for the
    construction components set out in the contract. However, he found that given
    the parties previous experience in 1995, he was satisfied that the parties
    contemplated some reasonable limit on the extent to which allowances on various
    construction components were included in the contract price. In our view, the
    trial judge was entitled to consider the fact that the parties had used allowances
    in the 1995 agreement in understanding their common knowledge and intentions
    alongside the other evidence he considered.

[14]

Finally, the appellants contend that the trial
    judge made a palpable and overriding error in calculating the respondents
    damages. They argue that the trial judge awarded the respondents double
    recovery in the final calculation of damages by excluding the appellants
    payments for work not covered by the contract (the excluded invoices), but at
    the same time allowing the costs of those items back into the damages award by
    way of the respondents spreadsheet calculations.

[15]

We do not accept this submission.
The trial judge heard and rejected the appellants argument that these
    invoices should be included in the amount calculated as already paid to the
    respondents. He clearly accepted Mr. Veniers evidence on damages, including
    the spreadsheet the appellant challenges. The trial judge was entitled to accept
    the respondents calculations as reasonable based on all the evidence before
    him. We are not persuaded that we should intervene in the trial judges
    assessment of damages.

[16]

In conclusion, we reject the arguments advanced
    by the appellants. The appellants submissions are a request for this court to
    redo the careful work and analysis of a trial judge who presided over a highly
    contentious trial that took 43 days. That is not our function. There is
    simply no basis to interfere with the trial judges conclusions which were all
    firmly anchored in the evidence.

[17]

Although there were other grounds of appeal
    advanced in their amended notices of appeal, they were not pursued in the
    appellants factum nor pressed in oral argument. We see no merit in any of
    these other grounds.

[18]

For these reasons, the appeal is dismissed. We
    fix costs in favour of the respondents in the agreed upon amount of $30,000 all
    inclusive.

Grant Huscroft J.A.

Gary Trotter J.A.

S. Coroza J.A.

[1]
In these reasons,
the three respondents are referred to
    collectively; however, for clarity, the building contract was formed between
    the Adilis and HoD 2002 specifically. Homes of Distinction Inc. is a related dormant
    company.

[2]
This claim was dismissed at trial.
The appellants appeal
    against the City of Hamilton has been abandoned.

[3]
The trial judge did, however, grant a credit to the Adilis based on
    what HoD 2002 had already offered them  $27,238 for incomplete items and
    $20,000 as an allowance for deficiencies. The trial judge subtracted this from
    the total amount owing to HoD 2002.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Glasner, 2022 ONCA 65

DATE: 20220127

DOCKET: C68891

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Salim Richard Glasner

Appellant

Tony Paciocco, for the appellant

Allyson Ratsoy, for the respondent

Heard: January 20, 2022 by
    video conference

On appeal from the convictions entered
    on May 30, 2019 and the sentence imposed on December 4, 2019 by Justice Hugh R.
    McLean of the Superior Court of Justice.

REASONS FOR DECISION

[1]

At the conclusion of a two day trial in Ottawa
    in May 2019, the trial judge found the appellant guilty of six drug related
    charges in an eight count indictment  possession for the purpose of
    trafficking (heroin and fentanyl); possession for the purpose of trafficking
    (oxycodone); possession for the purpose of trafficking (carfentanil); two
    counts of possession of proceeds under $5,000; and breach of recognizance for
    failure to keep the peace and be of good behaviour. The appellant received a
    global sentence of seven years for these offences. The appellant appeals from
    the convictions.

[2]

The Ottawa Police Service Drug Unit started
    surveillance at an Ottawa dwelling in July and August 2017. During
    surveillance, police observed some activity that was consistent with drug
    transactions, including short duration visits at the dwelling. They
    specifically observed the appellant outside but near the house engaging in
    transactions consistent with drug trafficking.

[3]

On August 23, 2017, the police executed a
    warrant at the dwelling and found four adults inside. The police testified that
    the appellant and Tara Dawache were in the northeast bedroom, the appellants
    uncle Richard Glasner was in another bedroom, and Daniel Sevigny was downstairs.

[4]

In the northeast bedroom, the police found quantities
    of heroin, fentanyl and carfentanil. Also in the room was an envelope addressed
    to the appellant at that address from a government institution. The police
    testified that both male and female clothing and shoes were found in this room.

[5]

In the same bedroom, the police testified that
    they also found a pink backpack containing drugs. They also found baggies,
    $1,610 and Ms. Dawaches identification.

[6]

Downstairs, the police found heroin, fentanyl,
    buprenorphine and four scales (two operable). The police testified that they
    also found US $141.

[7]

The trial judge convicted the appellant on six
    counts in the eight count indictment. He acquitted him of breach of recognizance
    for possession of drug paraphernalia and one count of possession of
    buprenorphine for the purpose of trafficking because Mr. Sevigny had a licence
    to obtain the drug, he was present in the house, and the drug was found near
    him.

[8]

The trial judge delivered brief oral reasons
    almost immediately after hearing counsels closing submissions.

[9]

The appellant appeals his convictions on two
    bases.

[10]

First, the appellant contends that the trial
    judge erred by failing to provide sufficient reasons to permit meaningful
    appellate review.

[11]

This is, as it should be, a difficult ground for
    an appellant to establish. The test for establishing it was articulated by
    McLachlin C.J. in
R. v. R.E.M.
, 2008 SCC 51, at para. 55:

The appellate court,
    proceeding with deference, must ask itself whether the reasons, considered with
    the evidentiary record, the submissions of counsel and the live issues at the
    trial, reveal the basis for the verdict reached. It must look at the reasons in
    their entire context. It must ask itself whether, viewed thus, the trial judge
    appears to have seized the substance of the critical issues on the trial.

[12]

After engaging in the process mandated by the
    Chief Justice, we cannot say that the trial judges reasons in this case are
    insufficient. The reasons are brief (five pages) but that alone cannot be a
    subject of criticism. This was a short trial (about one and a half days of
    testimony) with five Crown police witnesses and no evidence called by the
    defence. And, more importantly in our view, the trial judge appears to have
    seized the substance of the critical issues on the trial as instructed by the
    Supreme Court in
R.E.M
.

[13]

The evidence was overwhelming that drug
    transactions were taking place inside and very near the dwelling. The drugs and
    drug equipment inside the house and the police observations of activity inside
    and near the house confirm this.

[14]

As well, the evidence supported the conclusion
    that it was the appellant who was engaged in the drug activities taking place
    inside and outside the house. It was not contested that the appellant lived in
    the house and police testified they found mens clothing and shoes in the
    bedroom. Police found an envelope addressed to the appellant at the dwelling
    and they testified that a bag of drugs was found directly on top of the envelope.
    Over several days of surveillance, numerous people attended the residence for
    short visits which a police expert testified were consistent with drug
    trafficking. And outside but near the house, the police saw the appellant
    engaging in transactions consistent with drug trafficking.

[15]

Second, the appellant submits that the trial
    judge erred by failing to properly apply the law of possession for possession-based
    offences. He says that for all forms of possession (personal, constructive,
    joint), it is necessary to prove beyond a reasonable doubt both knowledge of
    the presence of the property in question and at least some measure of control
    over it: see
R. v. Morelli
, 2010 SCC 8, at para. 15.

[16]

The appellant asserts that the trial judge was
    silent on the control component of the test. He says that the trial judge spoke
    in terms of necessary indicia of possession of the drugs but never uses the
    word control or provides reasons that suggest he is grappling with this
    component of the test for possession. Given that there appeared to be several
    (as many as four) occupants of the house, the appellant argues that this
    omission amounts to an error of law.

[17]

We do not accept this submission. The police
    surveillance evidence established that the appellant was engaged in what looked
    like drug transactions outside but near the house and that he was present
    inside the house when people would come to it, enter, and leave soon after with
    what appeared to be a clenched fist consistent with a drug purchase. Moreover,
    drugs were found in a bedroom, with the appellant present in it, with mens
    clothing and shoes and an envelope with his name on it. As well, downstairs the
    police found a card with the appellants name and date of birth written on it.

[18]

Given all this evidence, it is obvious that the
    appellant both possessed and controlled the drugs. It is true that the other
    occupants of the house, especially Tara Dawache, might also have possessed the
    drugs. Possession might have been joint, for at least some of the drugs.
    However, joint possession is inclusionary, not exclusionary, because two or
    more people can have knowledge and control over the property in question.

[19]

In summary, the trial judges reasons, albeit
    brief, adequately address the two central issues at the trial  was unlawful
    drug activity taking place at the dwelling and was the appellant involved in
    that activity.

[20]

With respect to count two in the indictment, the
    Crown concedes that the appeal should be allowed. There was no evidence that
    the appellant had knowledge and control of the oxycodone pills found in the
    pink backpack in the bedroom. The backpack contained Ms. Dawaches identification
    and the surveillance did not establish that the appellant had ever been seen
    carrying it.

[21]

The appeal is allowed with respect to count two
    in the indictment and the conviction is set aside. On all the other counts, the
    appeal is dismissed. Although the notice of appeal with respect to sentence was
    filed, the appellant made no submissions on sentence. Accordingly, we would
    dismiss the sentence appeal.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

J.A.
    Thorburn J.A.