COURT OF APPEAL FOR ONTARIO

CITATION: Foxgate Developments Inc. v. Jane Doe, 2021
    ONCA 745

DATE: 20211006

DOCKET:
M52714, M52762 & M52781
    (C68873)

Coroza J.A. (Motion
    Judge)

BETWEEN

Foxgate Developments
    Inc.

Plaintiff

(Respondent/Responding Party)

and

Jane Doe, John Doe,
Skyler
    Williams
, or any agent or person acting under their instructions, and other
    persons unknown, and
the Corporation of Haldimand County

Defendants

(
Appellant
/
Respondent
/
Responding Party
)

and

Attorney General of
    Canada and Her Majesty the Queen in Right of Ontario

Third Parties

(Respondents)

Barry L. Yellin, for the appellant Skyler Williams

Paul DeMelo and Kristie Jennings, for the responding
    party Foxgate Developments Inc.

Bruce A. Macdonald, for the responding party Corporation
    of Haldimand County

Richard Ogden and James Shields, for the respondent Her
    Majesty the Queen in Right of Ontario

Mary Eberts and Jillian Rogin, for the proposed
    intervener 1492 Windsor Law Coalition

Caitlyn E. Kasper and Jonathan Rudin, for the proposed
    intervener Aboriginal Legal Services

Cara Zwibel, for the proposed intervener Canadian Civil
    Liberties Association

Heard: September 22, 2021 by video conference

REASONS FOR DECISION

Overview

[1]

1492 Windsor Law Coalition (1492 WLC) (M52762), Aboriginal Legal
    Services (ALS) (M52714), and the Canadian Civil Liberties Association (CCLA)
    (M52781) have brought motions for leave to intervene as a friend of the court,
    pursuant to r. 13.02 of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, in an appeal from an order of the decision of Harper J. (the motion
    judge) of the Superior Court of Justice.

[2]

The order under appeal struck out the appellants pleadings on an
    injunction brought by Foxgate Developments Inc. (Foxgate) and the Corporation
    of Haldimand County (Haldimand). The motion judge found the appellant had
    engaged in an abuse of process due to the appellants self-admitted contempt of
    court. The appellant also seeks leave to appeal the costs decision of the motion
    judge, which directed the appellant to pay Foxgate and Haldimand substantial
    costs.

[3]

During the proceedings below, the appellant also brought a Notice of
    Constitutional Question and Third-Party Claim against Canada and Ontario. Both
    Canada and Ontario are third parties in the appeal.

[4]

The appeal was perfected by the appellant on February 23, 2021. All the
    materials by the parties involved in the appeal were filed by the end of July.
    The appeal is scheduled to be heard on October 26, 2021.

[5]

Foxgate and Haldimand are opposed to the motions. Canada takes no
    position on any of the motions to intervene. Ontario consents to the motions to
    intervene by the CCLA and ALS and takes no position on 1492 WLCs motion.

[6]

In determining these motions, I must consider the general nature of the
    case, the issues that arise in the case, and
the
    contribution that the proposed intervener can make to resolving those issues
    without doing an injustice to the parties
:
Jones v. Tsige
(2011), 106 O.R. (3d) 721 (C.A.), at para. 22;
Peel (Regional  Municipality)
    v. Great Atlantic & Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d)
    164 (C.A.), at p. 167.

[7]

I am also mindful that where an appeal involves a private dispute rather
    than public law, the proposed intervener must meet a stringent standard:
Tsige
,
    at para. 23.

Nature of the Case

[8]

Foxgate owns a development site that is located on land that is the
    subject of an ongoing and long-standing land dispute between Six Nations,
    Canada, and Ontario. The appellant, Skyler Williams, argues that this site is
    unceded Six Nations land and since July 2020, a group of Indigenous
    individuals and their supporters has occupied the site.

[9]

Foxgate and Haldimand County obtained interlocutory injunctions against
    the individuals occupying the site and also those demonstrating in surrounding
    streets.

[10]

On
    August 25, 2020, the motion judge added the appellant as a defendant in the proceeding.
    The motion judge extended the interlocutory injunctions to October 9. The
    appellant filed a statement of defence.

[11]

At
    the October 9 hearing, the appellant admitted he was in contempt of court and in
    breach of the interlocutory orders. He also stated that he would remain in
    contempt of court and would continue to occupy the site. At this hearing, it
    became clear that the appellant had also tried to serve the Crown (i.e., Canada
    and Ontario) on September 18, but the documentation was not in the proper form
    and had been rejected by the court.

[12]

In
    a written endorsement dated October 16, 2020, the motion judge ruled that he
    would not permit the appellant to proceed against Canada and Ontario while the
    appellant was not in compliance with the courts orders. However, he directed
    that if the appellant did comply with the orders of the court and vacate the
    subject lands, he could reinstate himself and fully participate in the
    proceedings. The matters were adjourned to October 22, 2020.

[13]

The
    appellant then issued a Third-Party Claim on October 20, 2020 and served a
    Notice of Constitutional Question pursuant to the
Rules of Civil Procedure
and
    the
Courts of Justice Act, R.S.O. 1990, c. C.43
.

[14]

At
    the October 22 hearing, the motion judge asked the appellant if he would comply
    with permanent injunctions if the court ordered that relief in favour of
    Foxgate and Haldimand. The appellant stated that his position had not changed.

[15]

The
    motion judge then stated again that the appellant was engaged in an abuse of
    process and that the appellant was still in contempt of court. He then ordered
    that the appellants pleadings be struck. The motion judge then heard
    submissions from Foxgate and Haldimand County on the request for permanent
    injunctions and he granted those injunctions. Finally, the motion judge fixed
    and ordered costs against the appellant on a substantial indemnity scale to
    Foxgate at $117,814.18 and to Haldimand at $49,470 (plus HST).

Issues that Arise on Appeal

[16]

I
    have reviewed the factums filed by the parties on the appeal. The appellant
    asks that this court set aside the final orders made by the motion judge so
    that the injunction motion can be reheard in the Superior Court with him as a
    party and on their merits. The appellant also seeks leave to appeal the cost
    orders.

[17]

First,
    the appellant argues that, in arriving at the decision to strike his pleadings
    and terminating his further participation in the action against him, the motion
    judge failed to afford him procedural fairness.

[18]

Second,
    the appellant submits that the court also failed to consider certain principles
    that ought to apply in cases concerning civil remedies that are levied against
    Indigenous parties. Specifically, the appellant argues that the motion judge
    ought to have considered the
Gladue
sentencing principles before he
    struck the pleadings.

[19]

Finally,
    the appellant argues that, before striking the appellants pleadings, the motion
    judge ought to have considered:

·

whether, by its own admission, the courts impartiality had been
    diminished;

·

whether
amicus curiae
ought to have been appointed for
    the appellant, given that the appellant had supposedly engaged in contumacious
    behaviour that had not been purged;

·

whether the principles of abuse of process ought to have been
    conflated with contempt of court;

·

whether the prosecution of the appellants contempt ought to have
    been referred to the Attorney General to avoid the court taking on a dual role;

·

given that a finding of contempt was made on the courts own motion,
    whether the hearing ought to have been held in accordance with the principle of
strictissimi juris
, which it was not; and, among other things,

·

whether certain considerations ought to have been afforded to the
    appellant, since he is Indigenous, and had properly commenced a Third-Party
    Claim against the Crown and had served a Notice of Constitutional Question.

[20]

The
    appellant will also argue that the order made by the motion judge, directing
    that the appellant pay over $168,000.00 in legal costs, was exorbitant. He
    contends that it is based on an error in principle or is otherwise plainly
    wrong.

Proposed Contributions

Submissions of 1492 WLC

[21]

1492
    WLC is a grassroots coalition of students (Indigenous, non-Indigenous,
    settlers, immigrant settlers) and professors at the University of Windsor,
    Faculty of Law. 1492 WLC came together in the Fall of 2020 in response to the
    call to action issued by land defenders at 1492 Landback Lane, a land
    reclamation action undertaken by the appellant and many other Haudenosaunee and
    non-Haudenosaunee people. 1492 WLC has worked to provide accessible public
    legal information and research related to the reclamation, media support, court
    support, solidarity statements, and solidarity event organizing.

[22]

1492
    WLC argues that it would make a useful contribution by intervening in order to
    examine the ways in which settler colonialism in Canada has influenced the
    place of Indigenous peoples and legal orders in Canadian law, and to explore
    the ways in which the injunction remedy has been shaped by this influence. 1492
    WLC would argue that Indigenous Legal Orders should form part of the rule of law.
    1492 WLC asserts that the rule of law has been raised in the appeal and is not
    a new legal issue.

[23]

1492
    WLCs 21-page draft factum addresses the appropriateness of an injunction
    remedy in the context of land protest cases by Indigenous persons. 1492 WLC
    submits that, if this court on appeal should decide that errors by the motion
    judge require the injunction to be set aside and a new proceeding ordered, this
    court should provide guidance on various procedural and substantive matters to
    the court rehearing the matter.

[24]

1492
    WLC seeks to file a 20-page factum and be given 20 minutes of oral submissions.
    They also seek that no costs be awarded for or against them.

Submissions of ALS

[25]

ALS
    is a multi-service legal agency that provides services to the Indigenous
    community in Ontario. ALS expertise arises from its direct work with and on
    behalf of Indigenous communities. This expertise has been recognized both in
    courtrooms and in other arenas. Over the past thirty-one years, ALS has worked
    to convey Indigenous perspectives in justice-related matters. ALS has been
    granted intervener status in 26 Supreme Court cases and participated in at
    least 18 cases at this court, either as an intervener or as counsel to the
    accused.

[26]

ALS
    submits that the issues raised in this appeal will directly impact their
    clients and the Indigenous community members who face contempt of court due to
    asserting their s. 35 rights in a dispute where injunctive relief has been
    granted. According to ALS, there is a need for this court to hear from the
    broader Indigenous community, not just that of the appellant.

[27]

ALSs
    20-page draft factum highlights the following issues raised by this appeal. ALS
    submits that it can provide a distinct perspective on these three issues without
    expanding the scope of the appeal:

1.

The breadth of the analytic framework necessary to determine an
    application for injunction against members of an Indigenous community when s.
    35 interests are engaged;

2.

Why every effort must be made by the court to encourage the resolution
    of competing rights and interests; and

3.

The approach in treatment of an Indigenous contemnors participation in
    court proceedings when contempt has not been purged.

[28]

ALS
    seeks to file a 20-page factum and be given 20 minutes of oral submissions.
    They also seek that no costs be awarded for or against them.

Submissions of the CCLA

[29]

The
    CCLA is a leading national, independent, non-profit, and non-governmental
    organization dedicated to the furtherance of civil liberties across Canada. It
    was formed with the objective of promoting and advancing respect for and
    observance of fundamental human rights and civil liberties. In recognition of
    its important role, the CCLA has frequently been granted intervener status
    before courts, including this court.

[30]

The
    CCLA has substantial expertise in the areas of protecting and promoting
    fundamental freedoms, including freedom of expression, peaceful assembly, and
    association. The CCLA has frequently been involved in litigation and policy
    debates implicating the right to protest and considering the permissible nature
    and scope of state conduct in relation to protest activities, including work
    focused on the special considerations relevant to protests involving Indigenous
    people.

[31]

The
    CCLA argues that its submissions will assist the court in placing the appeal in
    a broader context and address points that are distinct from those raised by the
    parties or other proposed interveners.

[32]

The
    CCLAs 16-page draft factum makes the following three submissions that, it
    submits, provide a distinct perspective that does not expand the scope of the
    appeal:

1.

A finding of
    contempt requires that the alleged contemnor be afforded meaningful due
    process;

2.

Amicus curiae
should be appointed in requires for
ex parte
injunctive relief that significantly engage constitutional rights; and

3.

The need to consider systemic racism and discrimination before denying a
    litigant an opportunity to be heard and sanctioning the individual with a large
    costs award.

[33]

The
    CCLA seeks to file a 20-page factum and be given 20 minutes of oral
    submissions.

Prejudice

[34]

An
    overarching concern is prejudice to the parties in the appeal due to the timing
    of these motions. The proposed interveners have waited a long time to bring
    these motions given that the appeal was perfected on February 23, 2021. If the
    court were to grant leave to intervene, the respondents would only have a brief
    period of time to provide responding submissions. Although this concern is
    somewhat alleviated because all of the proposed interveners served draft factums
    in late July and early August when they brought their motions for leave to
    intervene, the reality is that the proposed intervention has been brought late
    in the day. I am of the view that there are legitimate concerns regarding
    prejudice from the late filing of motions approximately six weeks before an
    appeal that was perfected on February 23, 2021. If intervention is granted,
    materials would have to be produced to respond to the interventions. An intervention
    of this nature is meant to assist the court. The assistance can be
    significantly diminished when five additional factums
[1]
are being filed at the last minute:
Foster v. West
, 2021 ONCA 263, 55
    R.F.L. (8th) 270, at para. 18.

[35]

Foxgate
    and Haldimand argue that most of the submissions the proposed interveners seek
    to make are not relevant to the narrow procedural issue which is the subject
    matter of the appeal and that they will be prejudiced by the inordinate delay and
    increased costs that will be caused by the proposed interveners attempts to add
    substantial new arguments and issues not raised by the parties.

[36]

Foxgate
    especially opposes 1492 WLCs intervention because, it argues, that 1492 WLC
    has no standing as an unincorporated association to intervene, and 1492 WLCs
    intervention is inappropriate, given that 1492 WLC has provided support and
    legal advice to the appellant throughout the proceedings.

Discussion

[37]

I
    do not think it can be seriously argued that all three proposed interveners
    have expertise with a distinct perspective of this case. The primary
    consideration on this motion is an assessment of the contribution that each
    proposed intervener can make to the issues raised by the appellant without
    doing an injustice to the parties.

[38]

The
    submission made by Foxgate and Haldimand that the appeal is limited to whether
    any individual, whether an Indigenous person or a non-Indigenous person who is
    in contempt of the Court on their own admission is to be afforded the ability
    to advance their own claims and interests before the Court against others in
    the same proceedings is an overly simplistic characterization that is devoid
    of context. While it is true that the appeal does not relate to the merits of
    the granting of interim or permanent injunctions against the appellant and does
    not relate to the constitutionality of injunctions in relation to First
    Nations claims or contempt in First Nations cases generally, the striking of
    the appellants pleadings must be viewed in the context of the fact that it was
    an injunction proceeding that brought the appellant before the Superior Court
    of Justice.

[39]

Although
    the nature of this case is a private dispute, and a stricter onus has been applied
    to interventions in private disputes, the issues raised in this appeal involve
    broader public policy considerations that transcend the dispute between the
    immediate parties. This court has held that the more onerous threshold may be
    softened somewhat where issues of public policy arise:
Tsige
, at
    para. 23, citing
Childs v. Desormeaux
(2003), 67 O.R. (3d) 385 (C.A.),
    at paras. 3, 10;
Huang v. Fraser Hillarys Limited
, 2018 ONCA 277,
    at para. 5. While it is true this is not a case that directly involves s. 35 of
    the
Constitution Act, 1982,
in his factum, the appellant, who is
    Indigenous, will argue that the rule of law has many dimensions, including
    respect for minority rights, reconciliation of Aboriginal and non-Aboriginal
    interests through negotiations, and fair procedural safeguards. In my view, the
    appellant does raise the important public policy issues in his factum about
    whether the assertion of collective interests by an Indigenous person impacts
    the appropriateness of a decision to strike pleadings for abuse of process from
    contempt.

[40]

That
    said, all of these public policy issues are addressed in the appellants
    factum. Furthermore, the specific remedy sought by the appellant from this
    court is for the motion judges orders to be set aside so that he can
    meaningfully participate in a rehearing that will determine Foxgate and
    Haldimands request for a permanent injunction. Given the general nature of the
    case and the issues that arise in the appellants factum, I must assess the
    contribution that the proposed interveners can make to those issues and also
    keep in mind the arguments relating to prejudice advanced by Foxgate and Haldimand.

1492 WLC

[41]

In
    my view, 1492 WLC should not be granted intervener status in this case because they
    will not make a useful contribution without prejudicing the parties. Their
    draft factum solely addresses the appropriateness of a permanent injunction in
    the context of land protests by Indigenous persons. Although the context of an
    injunction proceeding is important, this issue is not before the court and it
    expands the record in a way that is prejudicial to the parties. The parties
    would be required to address a new issue so that this court can give potential
    guidance to the court below relating to permanent injunctions if it is sent
    back for a rehearing. In my view, if this court does send the case back for a
    rehearing, it is open to 1492 WLC to seek intervention status for that hearing.

[42]

In
    light of my decision to deny 1492 WLCs motion, I need not deal with Foxgate
    and Haldimands submission that 1492 WLC has no standing because they are not
    incorporated. However, that submission seems to be more of an objection that is
    one of form rather than substance. This court has rejected the submission that
    an unincorporated entity is barred from intervention:
Halpern v. Canada
    (Attorney General)
(2003), 169 O.A.C. 172 (C.A.), at para. 7. I agree with
    WLC 1492s submissions that they are not a fly-by-night organization that will
    disobey any rules and parameters set by a court and that the lack of
    incorporation by the organization should not be a bar to their proposed
    intervention.

[43]

Nor
    do I need to deal with Foxgates submission that WLC 1492 is really an
    appellant in disguise. Again, I would only make the observation that this court
    in other cases has recognized that interveners need not be impartial,
    objective or disinterested in the outcome of the case and [t]he fact that
    the position of a proposed intervenor is generally aligned with the position of
    one of the parties is not a bar to intervention if the intervenor can make a
    useful contribution to the analysis to of the issues before the court:
Oakwell
    Engineering Limited v. Enernorth Industries Inc.
, 2006 CanLII 60327 (Ont.
    C.A.), at para. 9;
Childs,
at para. 13.

ALS

[44]

Like
    1492 WLC, ALSs submissions also focus mostly on considerations of injunction
    proceedings against members of an Indigenous community when s. 35 rights are
    engaged (approx. 15 pages). In contrast to 1492 WLCs submissions which address
    the particulars of the test of an injunction, ALS does provide additional brief
    submissions that focus on the treatment of an Indigenous contemnors
    participation in court proceedings when contempt has not been purged. However,
    I am of the view that this issue will be addressed by the appellant who may
    develop the submissions made at para. 93 of his factum. In my view, the court does
    not require additional assistance from ALS on this specific issue, which is
    outlined at paras. 46 to 56 of its draft factum. Indeed, the submissions advanced
    by ALS will likely be duplicative of the appellants submissions.

CCLA

[45]

While
    the CCLA does focus on the issues before the court, their arguments about due
    process are largely duplicative of the submissions that will be advanced by the
    appellant in his appeal. I have already summarized the submissions of the
    appellant earlier in these reasons. There is considerable overlap between the
    submissions of the CCLA and the appellant. Moreover, the proposed submissions
    on the appropriateness of appointing
amicus curiae
in cases where
ex
    parte
injunctions may impact constitutional rights is also addressed by
    Ontario, a third party to this appeal. Overall, I cannot say with confidence
    that the CCLA provides a unique perspective on this particular case. The
    submissions made by the CCLA will be addressed by the parties in the appeal.

[46]

Overall,
    I am not persuaded that WLC 1492, ALS, or the CCLA have any distinct contribution
    to make in relation to this specific appeal. I am satisfied that the Indigenous
    perspective will be fully and adequately addressed by the appellant.

[47]

In
    conclusion, I agree with Foxgate and Haldimand that a substantial portion of
    the submissions proposed by WLC 1492 and ALS inappropriately expands the legal
    issues on appeal by making submissions on injunctions. With respect to the CCLA,
    I find that a substantial portion of its submissions overlaps with those made
    by the appellant. When I consider the nature of this appeal against the nature
    of the contribution that could be made to the issues in dispute, and the nature
    of the prejudice that could arise from allowing perfection of such a late
    intervention, I conclude that the motions must be dismissed.

DISPOSITION

[48]

The
    motions to intervene are dismissed.

[49]

Foxgate
    and Haldimand seek costs of these motions. In my view, this is not an
    appropriate case to order costs against the proposed interveners. The motions
    are from public interest organizations and an organization that is associated
    with a Canadian law school. There will be no order as to costs of this motion.

S. Coroza J.A.

[1]

Foxgate and Haldimand would likely file separate factums.


COURT OF APPEAL FOR ONTARIO

CITATION: Nelson v. TELUS Communications
    Inc., 2021 ONCA 751

DATE: 20211021

DOCKET: C69093

Strathy C.J.O., Nordheimer J.A. and Wilton-Siegel
    J. (
ad hoc
)

BETWEEN

Marjorie Nelson

Plaintiff (Respondent)

and

TELUS Communications Inc.

Defendant (Appellant)

Catherine Beagan Flood, Christopher DiMatteo and Natalie
    Cammarasana, for the appellant

Douglas Lennox, Careen Hannouche and Andrew Cleland, for the
    respondent

Heard: October 20, 2021 by video conference

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated January 12, 2021, with reasons reported at 2021
    ONSC 22, 2021 ONSC 23 and 2021 ONSC 24.

APPEAL BOOK ENDORSEMENT

[1]

The appeal is dismissed, substantially for the careful and thorough
    reasons of the motion judge.

[2]

The provincial legislation at issue, the
Wireless Services Agreement
    Act 2013
(
WSAA
), has been repealed. Except for the purposes of
    this class proceeding, the issue of the constitutional validity of the
WSAA
appears to be of no further consequence. None of Ontario, Canada or the CRTC
    has sought to intervene in this proceeding.

[3]

The appeal has largely been a re-argument of the issues that were before
    the motion judge, without any reference to his reasons and without specifically
    identifying any error in his factual findings, or any error in his application
    of well-settled principles of constitutional law. It is evident from his
    reasons that the motion judge carefully considered the appellants arguments
    and the applicable law, and we agree with his conclusions that (a) the
WSAA
was within provincial legislative jurisdiction; and (b) it was not rendered
    inoperative as a result of either paramountcy or interjurisdictional immunity.

[4]

Nor do we accept the appellants alternative submission that the class
    action should be stayed so that the CRTC can determine whether the plaintiff is
    entitled to a refund. The motion judges conclusion that the
WSAA
was
    valid provincial legislation that was operative during the class period does
    not permit any conclusion other than the plaintiff is entitled to assert her
    claim  that the appellant breached s. 16 of the
WSAA
by failing to
    provide refunds to class members  and that the Superior Court of Justice has
    jurisdiction over the proceeding.

[5]

Costs to the respondent fixed at the agreed amount of $65,000, inclusive
    of disbursements and all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: S. v. A., 2021 ONCA 744

DATE: 20211007

DOCKET: M52807 (C69835)

Coroza J.A. (Motion
    Judge)

BETWEEN

W.S.

Applicant

(Respondent/Responding Party)

and

P.I.A.

Respondent

(Appellant/Moving Party)

Gary S. Joseph and Alice Parama, for the moving party

Gary Gottlieb and Mira Pilch, for the responding party

Heard: September 23, 2021

REASONS FOR DECISION

[1]

Mr. S, the respondent, and Ms. A, the appellant,
    were married in 2011 and separated in 2016. They have two children, L who is
    seven and A who is five.
[1]

[2]

Regrettably, both parties could not resolve the
    parenting issues relating to their children. The respondent issued an
    Application in 2016. A hotly contested 39day trial was held over nine weeks in
    the Superior Court of Justice beginning in May of 2021. On September 9, 2021,
    the trial judge released very lengthy and comprehensive reasons ordering that
    the primary care of the children be transferred to the respondent and granting
    him sole responsibility for decision making.

[3]

The appellant has filed a Notice of Appeal with
    this court. She seeks a stay of the trial judges final order pending her appeal.
    The motion is opposed by the respondent.

[4]

The test for a stay is not disputed. This court
    recently summarized the test in the following way, in
D.C. v. T.B.
, 2021 ONCA 562, at para. 9:

Custody and access orders remain in effect
    pending an appeal to this court unless the court has ordered otherwise. In
    determining whether to stay an order involving the parenting of a child, the
    courts must consider: (1) whether, on a preliminary assessment, the appeal
    raises a serious question (recognizing that this is a low threshold); [2] whether
    the child will suffer irreparable harm if a stay is refused; and (3) the
    balance of convenience: namely whether there would be greater harm from the
    granting or refusal of a stay pending a decision on the merits of the appeal.
    The overriding consideration, again, is the best interests of the child. In
    other words, the court must be satisfied that it is in the childs best
    interests to grant a stay. [Citations omitted.]

[5]

For the reasons that follow, I would dismiss the
    application for a stay.

Serious Question

[6]

It is not necessary to outline each and every
    ground of appeal that will be advanced by the appellant in her Notice of
    Appeal. This is not the appeal. For the purpose of this motion, I will address
    three arguments that the appellant intends to develop on appeal.

[7]

First, the appellant argues that the trial judge erred
    by reversing custody because the
respondent has a long and documented
    history of domestic violence against her and the children. The appellant
    submits that the children show signs that they fear him and during the trial,
    the appellant provided examples of the oldest child kicking, screaming, biting,
    punching, and swearing to avoid seeing his father. The appellant contends that
    the trial judge unreasonably rejected this relevant and compelling evidence of
    serious domestic violence and that this is a significant error because the amendments
    to the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.), prioritize
    considerations of family violence and its impact on the parenting of the
    children.

[8]

In my view, the appellant faces an uphill climb in advancing this ground
    of appeal. The trial judge made strong findings that the appellants
    allegations of physical, financial, and sexual abuse had not been made out.
    Moreover, the trial judge found that the appellant had intentionally acted to
    undermine court-ordered parenting schedules and reunification counselling by
    bringing false allegations of sexual abuse designed to terminate the childrens
    relationship with the respondent.   As I read her reasons, the trial judge was
    prepared to find that the respondent did verbally and emotionally abuse the
    appellant during their marriage, but this had no impact on his present ability
    to be primary caregiver and decision maker for the children. That was the trial
    judges call to make. When I consider that the standard for appellate review of
    a custody or parenting decision is exacting, and that the function of this
    court will not be to retry the case, these complaints appear to me to be
    destined to fail:
Bors v. Bors
, 2021 ONCA 513, at paras. 18-20;
A.M.
    v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th) 1, at paras. 4, 74.

[9]

The trial judge also specifically dealt with the argument that the
    amendments to the
Divorce Act
put domestic violence at the forefront,
    at para. 23 of her reasons. After noting that a history of family violence has
    always been an important factor in the adjudication of parenting disputes, she
    concluded that the pattern of family violence that threatened the childrens
    best interests was not the conduct of the respondent. Instead, she made very
    strong findings that it was the appellants conduct that undermined the best
    interests of the children. Her careful reasons do not reveal any obvious error
    in reaching that conclusion.

[10]

Second,
    the appellant argues that the trial judge erred in relying on a dated assessment
    under s. 30 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12. Howard
    Hurwitz completed this assessment in 2017 and provided the court with a
    detailed report on March 9, 2018.

[11]

The
    appellant argues that the trial judge stated that the report was dated and
    could not be of any assistance to her. The appellant points to comments that
    the trial judge made when she adjourned the trial on June 2, 2021, so that she
    could explore obtaining an updated report from Mr. Hurwitz. However, when the
    parties next appeared in court on June 4, 2021, the trial judge seemingly
    changed her mind and told the parties an updated was not necessary and did not
    explain why. In his report, Mr. Hurwitz reported that he saw no evidence that
    the respondent was dangerous or that he could not move forward with the
    appellant to develop a healthy parenting plan. However, Mr. Hurwitz did not
    recommend custody reversal in his report  he had recommended sole custody to
    the appellant. The appellant argues that the trial judge erred in relying on
    the report.

[12]

I
    do not find this argument to be a compelling one.

[13]

I
    am not clear as to what an updated s. 30 assessment report would have
    accomplished. As this court has previously held, the law is clear that a trial
    judge should not delegate decision making to an assessor, and an assessors
    evidence is but one piece of evidence to consider:
Mattina v. Mattina
,
    2018 ONCA 641, at para. 13, leave to appeal refused, [2018] S.C.C.A. No.
    392. The fact that the report may have been dated was a factor to consider. It
    was the trial judges call to make whether or not an updated report was
    required. Of course, the context of this trial cannot be ignored. The trial had
    been extensively case managed by judges of the Superior Court, and there had
    been lengthy delays in getting the matter to trial. The decision not to order
    an updated s. 30 report is an exercise in trial management, and I see no
    obvious error in the trial judges call.

[14]

In
    any event, even if the report was dated, Mr. Hurwitz was produced for trial.
    Counsel for the appellant was able to cross-examine Mr. Hurwitz and inquire
    about the respondents weaknesses as a caregiver. It appears that there was
    very little prejudice visited on the appellant by not having an updated report.
    The trial judge was entitled to rely on the report and the cross examination in
    reaching her decision.

[15]

Third, the appellant submits that it is of grave
    concern that, out of the several professionals involved with the parties and
    their children since 2016, none recommended a custody reversal except a
    reunification therapist, Wendy MacKenzie, who was a clinician permitted to
    offer opinion evidence without a
voir dire
. The
    appellant also complains that Ms. MacKenzie was not a registered social worker.

[16]

The respondent argues that the trial judge did
    inquire into Ms. MacKenzies qualifications and that previous judges involved
    in prior motions in this case had accepted Ms. MacKenzie as an expert.

[17]

I am not prepared to say that this argument
    should be dismissed out of hand. The appellant may develop an argument that Ms.
    MacKenzie provided inadmissible opinion evidence that strayed well beyond her
    expertise and that a
voir dire
was required to
    determine her qualifications and the nature of the opinion that she was
    qualified to give to the court.

[18]

That said, I note that it is the appellant, through counsel, who
    first proposed in early January 2020 that the parties retain Ms. MacKenzie to
    conduct reunification counselling. It seems to me that the bulk of Ms.
    MacKenzies evidence (as summarized by the trial judge) relates to her
    observations of the parties during this process. The trial judges reasons
    reveal that
Ms. MacKenzie provided evidence on which parent was best
    prepared to work within the reunification process. The trial judge also
    described in detail the efforts made by Ms. MacKenzie to counsel the appellant
    about fostering a positive relationship with the respondent. In the end, the
    trial judge found that the appellant had intentionally undermined and sabotaged
    the reunification process. The trial judge found that, although Ms. MacKenzie
    had made efforts to convince the appellant to support the childrens
    relationship with their father, this proposition was never accepted by the
    appellant. I do not see any obvious error in the trial judges treatment of Ms.
    MacKenzies evidence, nor do I see how the failure to hold a
voir dire
would make her observations inadmissible.

[19]

That
    said, this is not the appeal. The threshold to cross in order to establish that
    there is a serious question on appeal is a low one. I am prepared to say, with
    this ground of appeal, the appellant has met the threshold for establishing a
    serious question for appeal. To be clear, I am not suggesting that this ground
    of appeal is strong.

Irreparable Harm

[20]

The
    appellant argues that the children will suffer irreparable harm if they are
    forced to reside with their father, and that the court should revert back to
    the
status quo
. The appellant argues that there has been a long
    history of domestic violence towards the children, and that she has had primary
    care of the children. The appellant submits that the order causes irreparable
    harm because the children effectively lose their meaningful parent-child
    relationship with her, their primary caregiver, mother, and support system.

[21]

The
    appellant argues that the change ordered by the trial judge is so drastic that it
    has caused physical, emotional, social, and psychological harm to the children.
    The appellant relies on two pieces evidence that she has obtained post-trial to
    support her submission on irreparable harm.

[22]

First, the appellant points to a recent chat she had with her
    oldest child on Zoom. In that chat, the
child wrote, help
    call popo [police]. The child also wrote, pls [please] get me out of here
    and i hate my life. The appellant points to this as evidence that the child
    is suffering in the current situation.

[23]

As a preliminary matter, the respondent objected
    to the appellant filing these excerpts of communications. I do not see the
    basis for the objection. This appeal involves the best interests of a child and
    on a motion to stay it is important to have the most current information
    possible when determining irreparable harm. I see no issue with this evidence
    because the primary concern is the childs best interests.

[24]

Turning now to the appellants argument that the
    chats demonstrate irreparable harm, I do not view this as evidence of
    significant harm. Arguably, there is contrary evidence from the respondent that
    suggests that the children have adjusted well since the order was made and are
    working on a continuing positive relationship with the respondent.

[25]

It is beyond dispute that moving children back
    and forth is necessarily disruptive. It seems to me that, while reversal of
    custody decisions contemplate that there will be initial unhappiness, they are decided
    for the long-term benefit. The trial judge recognized this. While the chats are
    troubling, they do not provide evidence of significant or irreparable harm.

[26]

Second, the appellant relies on an opinion from Dr.
    Peter Jaffe, a psychologist and Professor Emeritus in the Faculty of Education
    at Western University and Director Emeritus of the London Family Court Clinic.
    According to the opinion, the type of arrangements ordered by the trial judge
    rarely work, and custody reversal is highly intrusive and does not always
    succeed because it may further traumatize children.

[27]

Respectfully, I am not persuaded that this
    report should carry much weight in the analysis. I do not dispute that Dr.
    Jaffe is an expert. But this evidence does not assist me on this motion. It has
    not been subjected to cross-examination, he was not called as a witness at
    trial, he did not meet the children or the parties, or review the trial
    evidence. He was only asked to comment on his opinion with respect to custody
    reversal. This opinion does not provide a picture to this court as to how the
    children are doing post-trial in assessing irreparable harm. In addition, it
    is not clear to me that this new evidence would be admissible on the appeal,
    even with the caveat that the test for fresh evidence is more flexible where an
    appeal involves the best interests of a child:
Goldman v. Kudelya
, 2017 ONCA 300, at para. 25.

Balance of Convenience

[28]

In my view, this factor tips in favour of the
    respondent. I am not satisfied that there is evidence of irreparable harm or
    risk of harm to the children as a result of the order, but there is evidence of
    benefit to the children in continuing to have the trial judges order intact
    pending appeal. The trial judge concluded that the very best outcome for the
    children is to first restore their parenting relationship with the respondent,
    and then to progress parenting as quickly as possible to a schedule appropriate
    to their age and stage of development, while minimizing transitions. To stay
    the order under appeal would be highly disruptive to this goal and would not be
    in their best interests. The order was made on September 9, 2021. The children
    have had less than one month to adjust to being with the respondent. I see no
    reason at this stage to doubt the trial judges conclusions as to what the best
    interests of the children are.

[29]

The overarching consideration in whether to
    grant a stay pending appeal is whether doing so is in the interests of justice.
    By all accounts, this was a very difficult, high-conflict trial. In light of
    the very weak grounds of appeal, no evidence of irreparable harm, and the
    balance of convenience tipping in favour of maintaining the trial judges goal
    of restoring the parenting relationship with the respondent, it is not in the
    interests of justice to grant a stay.

Conclusion

[30]

For these reasons, the application for a stay
    pending appeal is dismissed. Within ten days of the release of this decision,
    the parties may provide costs submissions in writing not to exceed three pages,
    supported by bills of costs. The parties are directed to contact the Appeal
    Scheduling Unit to arrange for a case management judge with a view of
    expediting the appeal.

S. Coroza J.A.

[1]
The decision appealed from initialized the parties and the childrens names as
    well as omitting their birthdates to protect their privacy. I have decided to
    continue to do the same in these reasons.


COURT OF APPEAL FOR ONTARIO

CITATION:
Pinder
    v. Biggar, 2021 ONCA 750

DATE: 20211021

DOCKET: M52551 (C69419)

Benotto, Brown and Harvison Young JJ.A.

BETWEEN

Jack Pinder, Victor
    Dusik and Innotech Safety Solutions Inc.

Creditors

(Respondents/Moving Parties)

and

Wayne Biggar

Debtor

(Appellant/Responding Party)

and

Hospodar Davies & Goold

Garnishee

(Respondent/Responding Party)

Howard Borlack, Stephen Barbier and Ben Tustain, for the
    moving parties

Douglas Spiller, for the responding party Wayne Biggar

John Davies, for the responding party Hospodar Davies
    & Goold
[1]

Heard: September 8, 2021 by video conference

COSTS ENDOSEMENT

[1]

We have reviewed the parties cost submissions. Mr. Biggars appeal to
    this court clearly was brought to the wrong court and was an obvious delay
    tactic. Consequently, the respondents Jack Pinder, Victor Dusik and Innotech
    Safety Solutions Inc., are entitled to their substantial indemnity costs fixed
    in the amount of $11,500, inclusive of disbursements and applicable taxes,
    payable by Mr. Biggar within 5 days of the release of this endorsement.

M.L. Benotto J.A.

David Brown J.A.

Harvison Young J.A.

[1]
John Davies appeared but made no written or oral submissions on behalf of the responding
    party Hospodar Davies & Goold.


COURT OF APPEAL FOR ONTARIO

CITATION: Scaffidi-Argentina v. Tega Homes Developments, 2021 ONCA
    738

DATE: 20211022

DOCKET: C68870

Hourigan, Huscroft and Coroza JJ.A.

BETWEEN

Carmen
    Scaffidi-Argentina, Michaelangelo Scaffidi-Argentina,

Sheila Scaffidi-Argentina
    and Marissa Scaffidi-Argentina

Plaintiffs

and

Tega
    Homes Developments Inc.
,
Goodeve
    Manhire Inc.
,
Goodeve Manhire
    Partners Inc.
, Paterson Group Inc. and the City of Ottawa

Defendants
    (
Appellant
/
Respondents
)

Robert Emblem and William Plante-Bischoff, for the
    appellant

Elizabeth K. Ackman and Sean D. McGarry, for the
    respondents

Heard: October 8, 2021 by video conference

On appeal from the order of Justice Charles T. Hackland
    of the Superior Court of Justice, dated October 30, 2020, with reasons reported
    at 2020 ONSC 6656, 8 C.C.L.I. (6th) 223.

REASONS FOR DECISION

[1]

The respondents served as an engineering consultant and subcontractor on
    a construction project in the City of Ottawa. The appellant was the owner and
    developer of the project and was insured under a wrap-up liability policy which
    contained a waiver of subrogation clause. Adjacent property owners (the plaintiffs)
    sued the parties arising from damages caused by excavation work on the project.
    The plaintiffs filed a statement of claim and their own property insurer, State
    Farm Fire and Casualty Company (State Farm), indemnified part of the damages
    sought in the claim. State Farm thus became subrogated to part of the plaintiffs
    claim against the parties. The plaintiffs later recovered an amount from the
    appellants insurer.

[2]

In response to the claim, the appellant filed a statement of defence and
    crossclaim. The crossclaim against the respondents sought contribution and
    indemnity in respect of any amounts it might be found liable to pay to the plaintiffs.
    The respondents then brought a summary judgment motion requesting that the
    crossclaim be dismissed on the basis that they were insured under the
    appellants policy and the crossclaim was prohibited by the waiver of
    subrogation clause in the policy.

[3]

The motion judge granted the motion and dismissed the appellants
    crossclaim. He concluded that the respondents were additional insured under
    the policy and were entitled to the waiver of subrogation provided for in the
    policy.

[4]

In this appeal, the appellant repeats the same argument made before the
    motion judge  that the policy does not bar it from asserting a subrogated
    claim for indemnity against the respondents because they are not covered under
    the policy for the professional services claims brought by the property owners.
    According to the appellant, the respondents have coverage for professional
    services claims from their own insurer, yet, the motion judges decision
    requires it to nevertheless cover the loss because of the waiver of subrogation
    clause. The appellant submits that such a decision results in a windfall for
    the respondents, is commercially unreasonable, and ignores the relevant
    surrounding circumstances.

[5]

We reject the appellants argument.

[6]

The policy was a standard form contract. The surrounding circumstances
    generally play less of a role in the interpretation of these types of contracts
    of adhesion because the parties do not negotiate the terms, and the contract is
    put to the receiving party as a take it or leave it proposition:
Ledcor
    Construction Ltd. v. Northbridge Indemnity Insurance Co.
, 2016 SCC
    37, [2016] 2 S.C.R. 23, at paras. 25, 32.

[7]

It was agreed that the respondents were an engineering consultant and
    subcontractor. As such, the respondents were within the definition of additional
    insureds under the policy and although the policy specifically excluded
    coverage for professional liability, the appellant contracted out of any right
    of subrogation against all insureds (including additional insureds) under the
    policy. The motion judge observed that it would have been open to the appellant
    to have changed the wording of the policy, perhaps by altering the scope of the
    subrogation waiver or the definition of additional insured, to reflect the
    professional services coverage exclusion. We agree with the motion judges
    conclusion that it was not his function to restructure the commercial
    contractual arrangement agreed upon by these sophisticated parties to achieve what
    might be considered a fairer result. The motion judge noted that since there
    were no project agreements between the parties pertaining to insurance coverage,
    the policy must speak for itself.

[8]

The motion judge interpreted the policy in accordance with the guidance
    set out by the Supreme Court of Canada in its decision in
Progressive Homes
    Ltd.  v.  Lombard General Insurance Co. of Canada
, 2010 SCC 33,
    [2010] 2 S.C.R. 245, at paras. 22-24. Reading the contract as a whole, the
    language of the policy is unambiguous and the motion judge was required to give
    effect to the clear language set out in the policy. We are in substantial
    agreement with his reasons.

[9]

The appellant also argues that the motion judge erred in assuming that
    the crossclaim was a subrogated claim. To support this point, the appellant advanced
    two main submissions in oral argument.

[10]

First,
    the appellant contends that the crossclaim was filed before its insurer made
    any payment to the plaintiffs, and the payment that was subsequently made was not
    to settle the appellants liability since no trial determining liability has taken
    place yet. The appellant thus argues that the crossclaim never became a
    subrogated claim because its insurer made no payments pursuant to a policy
    obligation. We disagree. The appellants insurer made payment to the plaintiffs
    after damages were assessed at the damages trial and in exchange for a full and
    final release. The release explicitly refers to the damage amount being consideration
    for the settlement of the issue of liability advanced by the plaintiffs. In
    settling with the plaintiffs, the appellants insurer was dealing with a
    liability issue, notwithstanding the fact that the crossclaim remained to be
    determined.

[11]

At
    its core, the dispute between the parties on the crossclaim was whether the appellant
    could recover the payment of money from the respondents. It is self-evident
    that any recovery on the crossclaim would have been paid to the appellants
    insurer to cover the settlement amount. The act of seeking indemnity from a
    third party such as the respondents for payments is, by definition,
    subrogation.

[12]

Second,
    the appellant submits that the crossclaim was not a subrogated claim because
    the appellant has made no payment to State Farm for its subrogated portion of
    the plaintiffs claim. We do not accept this submission. The appellant is the
    only defendant remaining in the action. Thus, the only party State Farm can
    obtain judgment against is the appellant. Indeed, in oral argument it was acknowledged
    that State Farm has obtained a judgment against the appellant for this payment:
Scaffidi-Argentina v. Tega Homes Developments Inc. et al.
, 2021 ONSC
    3223, appeal as of right filed, C69482. The appellants submission is an
    argument with respect to timing. A payment to State Farm may not have been made
    yet, but that does not change the nature of the claim being made by the
    appellant against the respondents. Again, the only way it can seek recovery is
    by subrogation.

[13]

The
    motion judge was correct to consider the appellants crossclaim a subrogated
    claim. He did not err in dismissing the crossclaim in its entirety.

[14]

The
    appeal is dismissed. Costs for the appeal are awarded to the respondents in the
    agreed upon amount of $25,000 all-inclusive.

C. W. Hourigan J.A.

Grant Huscroft J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Weslease
    2018 Operating LP v. Eastgate Pharmaceuticals Inc., 2021 ONCA 743

DATE: 20211022

DOCKET: C68859

Feldman, Pepall and Tulloch JJ.A.

BETWEEN

Weslease 2018 Operating LP

Plaintiff (Respondent)

and

Eastgate Pharmaceuticals Inc.,
Proactive Supply
    Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey, Giancarlo Staffieri
and Anna Gluskin

Defendants (Appellants)

Yonatan Lipetz, for the appellants Proactive Supply
    Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey and Giancarlo Staffieri

David Winer, for the respondent

Heard: October 14, 2021 by video conference

On appeal from the judgment of Justice Grant R. Dow of
    the Superior Court of Justice, dated November 2, 2020, with reasons reported at
    2020 ONSC 6464.

REASONS FOR DECISION

[1]

The appellants, Proactive Supply Chain Solutions
    Inc., Salvatore Mancuso, Chris Pearcey, and Giancarlo Staffieri appeal from the
    summary judgment granted against them in favour of the respondent, Weslease
    2018 Operating LP.

[2]

The respondent leased laboratory equipment to
    the appellants pursuant to a lease and general security agreement. The
    appellants defaulted in payment. Relying on its security, the respondent commenced
    proceedings and successfully obtained an order to recover five of seven pieces
    of equipment. A bailiff subsequently repossessed the five pieces of equipment.

[3]

The respondent agreed to sell all seven pieces
    of equipment to a third party purchaser, who paid $60,000. The sale was
    conditional on the respondents ability to deliver the remaining two pieces
    still in the appellants possession, failing which, the $60,000 was to be
    refunded.

[4]

The respondent subsequently brought a motion for
    summary judgment for damages against the appellants, and an order for delivery
    up of the remaining two pieces of equipment. Before the motion judge, the
    appellants argued that they had entered into a settlement agreement with the
    respondent which required dismissal of the respondents motion.

[5]

The motion judge concluded that the parties had
    not entered into a settlement agreement. He granted the relief requested and
    ordered that if the appellants failed to deliver the remaining two pieces of
    equipment, they were to pay the respondent $60,000 on receipt of proof that the
    respondent had refunded that amount to the third party purchaser.

[6]

The appellants advance three grounds of appeal.

[7]

First, they submit that the motion judge made a
    palpable and overriding error in determining that the parties never entered
    into a settlement agreement.

[8]

We disagree.

[9]

The documents relied upon by the appellants were
    conditional on payment of outstanding arrears which never materialized. Neither
    the written nor the oral evidence before the motion judge supported the finding
    of a settlement agreement and he correctly dismissed the appellants arguments
    in that regard.

[10]

Second, the appellants submit that issues of
    credibility amounted to genuine issues requiring a trial and hence summary
    judgment ought not to have been granted. The problem with this argument is that
    the appellants were unable to identify any issues in the evidentiary record
    before the motion judge that engaged relevant competing issues of credibility.

[11]

Third, the appellants submit that the motion
    judge failed to adequately assess damages. The appellants failed to proffer any
    evidence of value that would dictate a different result than that reached by
    the motion judge. We fail to see any merit in the appellants damages argument.

[12]

The appeal is dismissed with costs of $10,000 inclusive of
    disbursements and HST to be paid by the appellants to the respondent.

K. Feldman J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Antonyuk v. Antonyuk, 2021 ONCA 748

DATE: 20211025

DOCKET: C69381

Feldman, Pepall and Tulloch JJ.A.

BETWEEN

Iryna
    Antonyuk

Applicant

(Appellant)

and

Mykhaylo Antonyuk

Respondent

(Respondent)

Iryna Antonyuk, acting in person

Igor Yushchenko, for the respondent

Heard: October 13, 2021 by video conference

On appeal from the
    order of Justice E. Llana Nakonechny of the Superior Court of Justice, dated January
    29, 2020, with reasons reported at 2020 ONSC 644.

REASONS FOR DECISION

[1]

The appellant appeals the decision of the trial judge which recognized
    the divorce of the appellant and the respondent obtained by the respondent in
    Ukraine, dated October 23, 1998, pursuant to s. 22 of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2nd Supp.).

[2]

The appellant argued at trial that the Ukrainian divorce was invalidly
    obtained and that the court in Kiev did not have jurisdiction to grant the
    divorce.

[3]

The appellant sought a divorce in Canada in 2017 and obtained a divorce
    order, but that divorce was set aside when the respondent took the position
    that the parties were already divorced. The respondent has remarried and has a
    child with his current wife. The appellants position is that she needs a
    Canadian divorce in order to be able to remarry because the Ukrainian divorce
    is not valid.

[4]

This was a four-day trial with evidence from the parties, a witness who
    observed the parties immediately after the Ukrainian divorce, and an expert on
    Ukrainian law.

[5]

The trial judge considered the requirements of s. 22 of the
Divorce
    Act
for the recognition of a foreign divorce, noting that foreign divorce
    decrees are presumptively valid.

[6]

The trial judge accepted the opinion of the expert that the Ukrainian
    court had jurisdiction to grant the divorce. The trial judge also accepted the
    finding by the Ukrainian court that the appellant had been given notice of the
    hearing and had not appeared. The trial judge noted that the appellant had not
    alleged fraud, and there was no evidence of fraud.

[7]

The trial judge found that the appellant had relied on the Certificate
    of Divorce from Ukraine when filing her Canadian income tax returns as a
    divorced person since 2001 and continued to do so even after she began to
    question the validity of the divorce. The trial judge also observed that the
    appellant delayed for many years before challenging the validity of the
    divorce. This observation was made in the context of the fact that failing to
    recognize the validity of the divorce would be very detrimental to the
    respondent and his family.

[8]

The trial judge concluded that the appellant had not met her onus of
    proving that the Certificate of Divorce from Ukraine was not properly obtained
    and should not be recognized in Canada.

[9]

We see no error in the trial judges findings or analysis. She was
    entitled to accept the evidence presented that verified the validity of the
    Ukrainian divorce and to reject the position of the appellant.

[10]

The appeal is dismissed with costs fixed in the amount of $5,000,
    inclusive of disbursements and HST.

K. Feldman J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McFlow Capital Corp. v. James, 2021 ONCA 753

DATE: 20211025

DOCKET: C68043

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

McFlow Capital Corp.

Plaintiff (Respondent/

Appellant by way of cross-appeal)

and

Kenneth James,
    personally and in his capacity as trustee for Laura McClenaghan, Rosemary
    Cremer and the Estate of Kenneth McClenaghan
,

Laura McClenaghan, personally
    and in her capacity as trustee for the Estate of

Kenneth McClenaghan, Dorothy
    Short in her capacity as trustee for the Estate of

Kenneth McClenaghan,
Rosemary
    Cremer
, Susan James, 1303678 Ontario Inc.,

Sterling
    Capital Corporation, Eveline Holdings Ltd., and G.A.C. Investments Ltd.

Defendants (Appellants/

Respondents by way of cross-appeal)

AND BETWEEN

Kenneth James,
    personally and in his capacity as trustee for Laura McClenaghan, Rosemary
    Cremer and the Estate of Kenneth McClenaghan
, Laura McClenaghan, personally
    and in her capacity as trustee for the Estate of Kenneth McClenaghan, Dorothy
    Short in her capacity as trustee for the Estate of Kenneth McClenaghan,
Rosemary
    Cremer
, 1303678 Ontario Inc., and G.A.C. Investments Ltd.

Plaintiffs by Counterclaim (
Appellants/

Respondents by way of cross-appeal
)

and

McFlow Capital Corp.,
    Premium Properties Limited

and Milton Winberg

Defendants to the Counterclaim

(Respondents/

Appellants by way of cross-appeal)

Theodore B. Rotenberg and Ranjan Das, for the
    appellants/respondents by way of cross-appeal

Hilary Book and Samantha Del Frate, for the
    respondents/appellants by way of cross-appeal

Heard: September 21, 2021 by video conference

On appeal from the judgment of Justice Sandra Nishikawa
    of the Superior Court of Justice, dated January 20, 2020 and October 9, 2020,
    with reasons reported at 2020 ONSC 374 and 2020 ONSC 6167.

Thorburn J.A.:

A.

INTRODUCTION

[1]

This is an appeal by the appellants (defendants), Kenneth James personally
    (James), and in his capacity as trustee for Laura McClenaghan, Rosemary
    Cremer, and the Estate of Kenneth McClenaghan, and Rosemary Cremer (Cremer).
    The appellants claim the trial judge erred in holding that the oppression and
    conspiracy claims against Cremer were not statute-barred, awarding punitive
    damages against Cremer, and ordering substantial indemnity costs payable to
    McFlow.

[2]

The respondents,
McFlow Capital Corporation (McFlow),
    Premium Properties Limited (Premium) and Milton Winberg, cross-appeal the
    trial judges award of prejudgment interest.

B.

THE PARTIES

[3]

The claim involves a condominium corporation called
Simcoe
    Condominium Corporation No. 27 (SCC 27).

[4]

The appellant, James, was the lawyer for both SCC 27,
    and the first and second mortgagees for 30 of the 44 units (the majority
    units) in SCC 27. The trial judge determined that James held a beneficial
    interest in the mortgages on the majority units in SCC 27 such that he was able
    to control SCC 27, himself or through two
off-shore companies, Eveline
    Holdings Ltd. (Eveline) and Sterling Capital Corporation (Sterling).
    Eveline and Sterling were James alter egos.

[5]

The appellant, Cremer, was the bookkeeper and office
    manager of James law firm, a director of SCC 27, and James friend and
    housemate.

[6]

The respondent McFlow was the mortgagee of the
    remaining 14 units (the minority units) in SCC 27, which were owned by
    1652030 Ontario Limited (165).

C.

BACKGROUND FACTS

[7]

In 2008, SCC 27 issued a special assessment of $40,000
    per unit on all the units in the complex (the 2008 special assessment). The
    trial judge found that there was no legitimate basis for this assessment amount
    and that the amount was set high enough that the minority unit owner, 165,
    would not be able to pay the sum and would be forced into default. Notices of
    Sale under Lien were issued by SCC 27 only for the minority units, even though
    the majority units had also not paid the 2008 special assessment.

[8]

In April 2009, McFlow, as mortgagee of the minority
    units, commenced an application for oppression against SCC 27 and James. In May
    2009, the court appointed an administrator to manage SCC 27s affairs.

[9]

In May 2009, James swore an affidavit that he was in
    possession of a $2 million GIC which he said was money paid by the majority
    mortgagees toward the 2008 special assessment and an earlier assessment in
    2004.

[10]

On June 3, 2009, the administrator served a Notice of
    Motion to have the $2 million GIC paid into court pending a determination
    of its ownership.

[11]

On June 4, 2009, the GIC was cashed and funds were
    wired to Evelines account in the Turks and Caicos Islands (TCI).
In
    his affidavit dated June 4, 2009,
James swore that he was
    holding the money in trust for Eveline and it was never SCC 27s property.

[12]

The funds were returned to Canada but James counsel
    informed the administrator that James had not personally received the $2
    million and no longer had control over any of the funds in the Eveline account.

[13]

On June 30, 2009, the court ordered Eveline and James
    to pay into court all the money derived from the proceeds of the GIC. The money
    was not paid into court.

[14]

In August 2009, McFlow commenced a negligence action
    against its own counsel and mortgage broker for losses, which was settled for
    the sum of $875,000.

[15]

In December 2009, the administrator listed the minority
    units for sale.

[16]

In 2011, James offered to purchase the minority units
    and three others for a total of $10,000, which the administrator refused. In
    2012, the administrator listed all the units for sale.

[17]

The court approved the sale and the sale was completed
    in August 2013.

[18]

In December 2013, the appellants counterclaimed for
    oppression against McFlow, Premium and Winberg. (Premium was a company related
    to McFlow, and Milton Winberg was the principal of McFlow and Premium.)

[19]

In May 2015, McFlow issued a statement of claim against
    all the defendants (including the appellants).

D.

THE TRIAL JUDGES REASONS

[20]

At paras. 314-16 of her reasons for decision, the trial judge held that:

After Mr. James took control of SCC 27, the disarray turned
    into paralyzing dysfunction. The dysfunction would ensure that no reasonable
    purchaser or lender would want any involvement in the Minority Units. In the
    end, only Mr. James would want to purchase the Minority Units, which he could
    do at a bargain price, leaving him in control of the entire Complex.

No rational condominium corporation, unit owner, or mortgagee
    would want this level of dysfunction and the attendant stigma, which would
    cause the property value to fall. The intent was to cause the owner, 165, and
    the mortgagee, McFlow, to walk away.

[21]

At para. 319 of her reasons, the trial judge found that:

Ms. Cremer has admitted to being involved in the decision to
    levy the 2008 Special Assessment and to register liens on the Minority Units,
    as well as the decision to wire the $2 million to the TCI. Ms. Cremer did not
    perform those acts while fulfilling the proper course of her duties as a
    director of SCC 27. Rather, she used her position as a director of SCC 27 to
    perpetrate acts that were prejudicial to its interest and to McFlows. Ms. Cremer
    admits to participating in or directing those decisions and was instrumental to
    Mr. James ability to carry them out. She engaged in the oppression in addition
    to Mr. James.

[22]

In respect of the alleged conspiracy among James, SCC 27 and Cremer, the
    trial judge held, at para. 341 that,

Mr. James, SCC 27 and Ms. Cremer acted in concert, by
    agreement or with a common design. Mr. James was the directing and controlling
    mind of SCC 27. Mr. James and Ms. Cremer were at all times acting in pursuit of
    a common design. Whether Mr. James was instructing Ms. Cremer or Ms. Cremer was
    instructing Mr. James, they both had the same objectives in mind. The
    predominant purpose of their conduct was to cause injury to the owner and/or
    mortgagee of the Minority Units by eliminating or rendering valueless their
    interests in SCC 27. Alternatively, they used unlawful means (oppression and
    breach of the
Condominium Act
) in circumstances where they knew or should
    have known that damage to McFlow was likely to result. As discussed above,
    their conduct caused McFlow damage.

[23]

The trial judge concluded that James actions were intended to force out
    McFlows interest in the minority units and that his actions, and his
    failures, in precipitating a state of dysfunction were oppressive, or at the
    very least, unfairly prejudicial, because it was intended specifically to
    squeeze out McFlows interest in the Minority Units.

[24]

She accepted that McFlow had not done enough due diligence before
    advancing and increasing loans on the mortgages on the minority units but held
    that McFlow was nonetheless entitled to damages for oppression from James and
    Cremer pursuant to s. 135 of the
Condominium Act 1998,
S.O. 1998, c.
    19.

[25]

She also granted judgment for conspiracy against Cremer, Eveline and
    Sterling on the basis that James was the directing mind of Eveline and Sterling
    and used them to execute his scheme to injure McFlow. She held that the failure
    to pay the $2 million to the administrator was a brazen disregard of a court
    order by an officer of the court.

[26]

The trial judge dismissed the appellants argument that McFlows claims
    were statute-barred by the expiry of the limitation period.

[27]

At paras. 357-65 of her reasons, she held that until 2013, the only
    information that McFlow had about Cremer was that she was James employee and,
    from 2008, a director of SCC 27.

While McFlow knew that Ms. Cremer was a director of SCC 27 when
    it served its Notice of Application in May 2009, she appeared to be nothing
    more than a nominee director acting for Mr. James. McFlow did not know and
    could not have known by the exercise of reasonable diligence, that it had a
    claim against Ms. Cremer personally. It could not have alleged any facts to
    support her liability as a director. Moreover, McFlow did not know until 2013
    that Ms. Cremer was a beneficiary of the McClenaghan Trust and that after Mr.
    McClenaghans death she was purportedly instructing Mr. James.

[28]

The beneficiaries of the McClenaghan Trust were Mr. McClenaghans
    spouse, Cremer and James then-spouse. According to James, he and Eveline were
    trustees of the trust at some points. The trial judge found that the
    McClenaghan Trust raises more questions than it answers and, even if the
    trust agreement were authentic and the trust legitimate, she rejected James
    argument that it held the beneficial interest in the majority units
in SCC 27.

[29]

The trial judge ordered the appellants to pay McFlow
    damages in the amount of $413,595.27 and prejudgment interest of $141,199.14,
    calculated at the rate of 1.3 percent per annum, as provided for in the
Courts
    of Justice Act
, R.S.O. 1990 c. C.43 (
CJA
), which was the interest rate when the action was commenced.

[30]

She also ordered punitive damages in the amount of $100,000,
    and post-judgment interest calculated at the rate of 3 percent commencing on
    January 20, 2020. She further ordered the appellants to pay substantial
    indemnity costs of $568,292.05 to McFlow, bearing 2 percent interest,
    commencing on October 9, 2020.

E.

THE ISSUES

[31]

While a number of issues were raised in the appellants factum, at the
    time of the hearing, the appellants advised that the only issues to be
    adjudicated on this appeal are whether the trial judge erred in holding that:

i.

the oppression and conspiracy claims against Cremer were not
    statute-barred;

ii.

punitive damages should be awarded against Cremer; and

iii.

substantial indemnity costs were warranted, in addition to punitive
    damages.

[32]

The respondents cross-appeal claiming
the trial judge
    erred in awarding interest at the rate of 1.3 percent as provided in the
CJA
rather than
prejudgment interest at the rate of 6.5 percent,
    compounded monthly, which was sought by McFlow.

F.

ANALYSIS

The First Issue: Were the Claims Against Cremer
    Statute-Barred?

[33]

The appellants submit that the trial judge erred in concluding that the
    claims against Cremer were not statute-barred.

[34]

A claim is discovered on the earlier of the day on which a party knew or
    ought to have known (i) that the injury, loss or damage had occurred, (ii) that
    it was caused by an act or omission of the person against whom the claim is
    made, and (iii) that a proceeding would be the appropriate means to seek to
    remedy it, or that a reasonable person with the abilities and in the
    circumstances of the person with the claim first ought to have known of these
    matters. At this point, the two-year limitation period is triggered:
Limitations
    Act
, 2002, S.O. 2002, c. 24, Sched. B.
,
s. 5(1).

[35]

In
Grant Thornton LLP v. New Brunswick,
2021 SCC 31, at para.
    42, Moldaver J., writing for the Court, held that in respect of a similar
    provision in the New Brunswick
Limitations of Actions Act
, S.N.B.
    2009, c. L-8.5, a claim is discovered when a plaintiff has knowledge, actual
    or constructive, of the material facts upon which a plausible inference of
    liability on the defendants part can be drawn.
Grant Thornton
was
    followed by this court in
Gordon Dunk Farms Limited v. HFH Inc.
, 2021
    ONCA 681, at paras. 36-38.

[36]

The appellants claim the trial judge applied too high a standard to
    determine whether McFlow had the requisite degree of knowledge to discover a
    claim under the
Limitations Act
and did not consider whether a
    plausible inference of liability could be drawn.

[37]

They claim that in 2009, McFlow knew Cremer was James employee and a
    director at the time of the 2008 special assessment. Since Cremer was a
    director, McFlow could have made a plausible inference that she supported the
    assessment in 2009 which McFlow alleged was oppressive and involved a
    conspiracy, triggering the limitation period.

[38]

I do not agree.

[39]

The trial judge found that while McFlow knew Cremer was a director of
    SCC 27 in 2009, she appeared to be nothing more than a nominee director. It was
    not until 2013 that McFlow knew or could have known by the exercise of
    reasonable due diligence, that Cremer was a beneficiary of the McClenaghan
    Trust, which James claimed held the beneficial interest in the majority units,
    and that after Mr. McClenaghans death, she was purportedly instructing
    James.

[40]

Until then, any claim in oppression or conspiracy would have been
    founded on mere suspicion or speculation which is not sufficient to draw a
    plausible inference of liability:
Grant Thornton,
at para. 46.

[41]

For these reasons, the first ground of appeal fails.

The Second Issue: Did the Trial Judge Err in Awarding
    Punitive Damages Against Cremer?

[42]

The appellants claim the trial judge erred in awarding punitive damages
    against Cremer as the only explanation for doing so was Cremers role in
    failing to have the $2 million GIC paid into court. They claim this cannot form
    the basis of a punitive damage award as the money was to be paid to the credit
    of the action the court administrator for SCC 27 was to commence and that
    action was never commenced.

[43]

As noted by the trial judge, in deciding whether to make an award of
    punitive damages, the question is whether the defendants conduct was so
    outrageous that punitive damages are rationally required for deterrence. Trial
    courts have latitude in determining punitive damages, provided the amount
    serves a rational purpose, namely prevention, deterrence and denunciation:
Whiten
    v. Pilot Insurance Co.,
2002 SCC 18, [2002] 1 S.C.R. 595
,
at
    paras. 94-100;
Richard v. Time Inc.,
2012 SCC 8, [2012] 1 S.C.R. 265
,
at para. 190;
Cinar Corporation v. Robinson,
2013 SCC 73, [2013]
    3 S.C.R. 1168, at para. 134.

[44]

Appellate courts should only intervene where there has been an error of
    law or a wholly erroneous assessment of the quantum of punitive damages, that
    is, if the amount awarded was not rationally connected to the purposes in
    awarding punitive damages:
Richard,
at para. 190;
Cinar
, at
    para. 134.

[45]

The trial judge did not rely exclusively on Cremers role with respect
    to the $2 million GIC. In this case, the trial judge found that Cremer acted in
    concert, by agreement or in pursuit of a common design with James to cause
    injury to the owner and/or mortgagee of the minority units by rendering
    valueless their interests in SCC 27 or to use unlawful means in circumstances
    where they knew or should have known that damage to McFlow was likely to
    result.

[46]

She held that punitive damages were warranted to denounce and deter
    James years of oppressive conduct and James and Cremers dissipation of the $2
    million GIC by deliberately hiding the money from the court, the administrator
    and creditors, knowing that a court order had been issued to pay the money into
    court. She rejected the appellants argument that the obligation to pay the $2 million
    into court was conditional on the administrator commencing a proceeding. As
    noted by the trial judge, the funds were only ever paid to the credit of the
    action, after being seized by the RCMP in an unrelated criminal proceeding.

[47]

The award of punitive damages was rationally connected to the policy
    objectives of deterrence and denunciation and there were adequate grounds to
    support the trial judges decision to impose punitive damages against Cremer.

[48]

For this reason, the second ground of appeal fails.

The Third Issue: Did the Trial Judge Err in Awarding
    Substantial Indemnity Costs?

[49]

The appellants also challenge the discretionary costs award. They argue
    that the trial judge erred in principle by relying on the same conduct that
    gave rise to her award of punitive damages as the basis of her decision to
    award costs on a substantial indemnity scale. This, they submit, is contrary to
    this courts decision in
Sliwinski v. Marks
(2006), 211 O.A.C. 215
    (C.A.), at para. 29.

[50]

Since the substantive appeal is dismissed, the appellants are required
    to seek leave to appeal the discretionary costs award:
CJA,
s. 133;
Gary
    Anthony Bennett Professional Corporation v. Triella Corp.,
2019 ONCA 225,
    at para. 7. To grant leave, there must be strong grounds upon which the
    appellate court could find that the trial judge erred in exercising his
    discretion:
Brad-Jay Investments Limited v. Village Developments Limited
(2006), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007]
    S.C.C.A. No. 92. This includes errors in principle or a costs award that is
    plainly wrong:
Hamilton v. Open Window Bakery Ltd.,
2004 SCC 9, [2004]
    1 S.C.R. 9, at para. 27, citing
Duong v. NN Life Insurance Co. of Canada
(2001)
,
141 O.A.C. 307 (C.A.), at para. 14.

[51]

The appellants have not sought leave.

[52]

In any event, I see no reason to interfere with the trial judges
    exercise of discretion in awarding costs as the trial judge committed no error
    in principle. She made numerous findings of egregious conduct by the appellants
    in the context of McFlows oppression claim and held, at para. 21 of her costs
    endorsement that:

[T]he Defendants significantly lengthened the proceedings by
    raising every possible argument, including limitation periods, laches,
    election, waiver and unclean hands; failing to make reasonable admissions and
    serving a blanket denial in response to McFlow's detailed chronology served
    before trial; and filing lengthy affidavit evidence rife with self-serving
    editorializing, speculation and rationalization.

[53]

The trial judge considered the appellants argument, relying on
Sliwinski,
that an award of substantial indemnity costs would be an unnecessary
    double judicial admonishment.

[54]

The trial judge held that
Sliwinski
was distinguishable from
    this case as:

[T]he punitive damages award and substantial indemnity costs
    were in relation to the same conduct; no issue was raised about the defendants
    conduct in the litigation.

In this case, even if the Defendants oppressive conduct is
    sufficiently compensated by the punitive damages award, I would nonetheless
    find that substantial indemnity costs are warranted based on the Defendants
    conduct in the litigation.

[55]

On the basis of these findings of fact which are supported by the
    evidence, I see no error in the trial judges exercise of her discretion to
    award substantial indemnity costs.

[56]

For these reasons, the third ground of appeal fails.

The Fourth Issue: Did the Trial Judge Err in Awarding Prejudgment
    Interest at the Court of Justice Act Rate Rather Than the Mortgage Rate?

[57]

McFlow claims the trial judge erred in awarding prejudgment interest at
    the
CJA
rate rather than the mortgage rate.

[58]

The party seeking an order to depart from the
CJA
rate pursuant
    to s. 130 of the
CJA,
has the onus to demonstrate that the
CJA
rate should be displaced:
Metropolitan Toronto Police Widows & Orphans
    Fund

v. Telus Communications Inc.
(2008), 44 B.LR. (4th) 140
    (Ont. SC), at para. 69, affd 2009 ONCA 111, 55 B.L.R. (4th) 12.

[59]

Awards of compound prejudgment or post judgment interest are generally
    limited to breach of contract cases where there is evidence that the parties
    agreed, knew, or should have known that the money would bear compound interest
    as damages:
Bank of America Canada v. Mutual Trust Co.,
2002 SCC 43,
    [2002] 2 S.C.R. 601, at para. 55. Compound prejudgment or post judgment
    interest may be awarded as consequential damages in other cases but there
    would be the usual requirement of proving that damage:
Bank of America,
at
    para. 55. The same principles apply to interest at a rate in excess of the rate
    provided for in the
CJA
.

[60]

This is not a breach of contract case; accordingly, McFlow was required
    to prove compound interest at a rate in excess of the
CJA
rates as
    consequential damages.

[61]

McFlow claims that, had it been able to sell the minority units in 2009,
    it would have had the funds available for reinvestment. McFlows principal,
    Milton Winberg, testified that McFlow could have earned interest similar to the
    mortgage rate on the minority units, which was 6.5 percent per annum,
    compounded monthly.

[62]

However, the trial judge held that there was no evidence to demonstrate
    a reasonable probability that McFlow could earn interest at a rate of 6.5
    percent compound interest other than Mr. Winbergs bald assertion. As noted by
    the trial judge: McFlow provided no evidence of the interest it was earning on
    other mortgage loans over the same time period.

[63]

For this reason, the trial judge held that, I am not satisfied that
    either party has raised a sufficient basis for departing from the applicable
    prejudgment interest rate under the
CJA,
which is the interest rate
    when the action was commenced, or 1.3 percent. The total amount of prejudgment
    interest is $141,199.14.

[64]

Since (i) the onus is on the moving party to satisfy the court that the
    interest rate set out in the
CJA
should be displaced and (ii) there
    was no evidence as to the amount McFlow was earning on its other loans at that
    time, the trial judge declined to exercise her discretion to award interest at
    a rate higher than that provided for in the
CJA
.

[65]

Given the evidence about McFlows lack of due diligence in its lending
    business, her conclusion that further evidence was required was reasonable. I
    see no reason to interfere with this exercise of her discretion and for this
    reason, the cross-appeal fails.

G.

CONCLUSION

[66]

For the above reasons, I would dismiss the appeal and cross-appeal.

[67]

I would award costs of the appeal to the respondents in the amount of
    $23,000 all-inclusive and costs of the cross-appeal to the appellants in the
    amount of $2,000 all-inclusive as agreed by the parties.

Released: October 25, 2021 P.R.

J.A. Thorburn J.A.

I agree. Paul Rouleau J.A.

I agree. Alexandra Hoy 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. N.T., 2021 ONCA 754

DATE: 20211025

DOCKET: C66755

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.T.

Appellant

John Hale, for the appellant

Rebecca Schwartz, for the respondent

Heard: October 19, 2021 by video conference

On appeal from the convictions entered by Justice Michel
    Z. Charbonneau of the Superior Court of Justice on April 3, 2019.

REASONS FOR DECISION

[1]

Following a judge alone trial, the appellant was convicted of one count
    of sexual interference and one count of assault but acquitted of sexual assault
    and invitation to sexual touching. All charges related to the appellant's
    step-daughter.

[2]

The appellant testified at trial and denied the incident that was the
    foundation for the sexual interference and sexual assault charges. Although he
    acknowledged physical contact with the complainant during the incident forming
    the subject matter of the assault charge, his version of the event raised s. 43
    of the
Criminal Code
, R.S.C. 1985, c. C-46, as a potential defence.

[3]

The appellant raises two issues on appeal.

[4]

First, the appellant submits that the trial judges reasons are
    insufficient for several reasons. The appellant contends that the reasons fail
    to explain how the trial judge resolved the inconsistent versions of events, why
    he rejected the appellants evidence or set out any pathway to conviction. The
    reasons make only passing reference to the appellants evidence and fail to
    apply
W.(D.)
.
[1]
Further, the reasons do not address the elements of the offences or the s. 43
    defence. Overall, the deficiencies in the reasons render them immune to appellate
    review.

[5]

Second, the appellant submits that the trial judges reasons for
    sentence demonstrate he intended to convict the appellant of the second count
    of the indictment, sexual assault, and acquit him of the more serious charge of
    sexual interference.

[6]

We do not accept these submissions.

[7]

Regarding the physical assault, the trial judge gave extensive reasons
    explaining why he accepted the evidence of the complainant and her mother and
    rejected the challenges to their credibility raised by the defence. Although
    the appellant acknowledged physical contact with the complainant during the
    incident forming the subject matter of the assault charge, he denied the level
    of angry physical force described by the complainant. Instead, he explained he
    intervened to prevent escalation of a confrontation between the complainant and
    her mother and relied on s. 43 of the
Criminal Code
as a defence. The
    mothers evidence concerning the assault supported the complainant's evidence
    and undermined the appellant's account.

[8]

Contrary to the appellants submissions, the trial judge expressly
    adverted to
W.(D.)
when addressing the assault. If not explicit, it is
    implicit from the trial judges reasons that he rejected the appellants
    account of the assault because he accepted the Crown's evidence. On the
    complainants version of the assault, it was unnecessary that the trial judge
    go into greater detail concerning why a s. 43 defence was not available.

[9]

Concerning the sexual interference offence, the appellant denied that
    the incident described by the complainant occurred. Once again, if not
    explicit, it is implicit in the trial judges reasons that he rejected the
    appellants denial because he accepted the complainants testimony. Further, we
    are satisfied that a finding of sexual purpose is the only reasonable inference
    arising from the trial judges description of the sexual touching incident.
[2]

[10]

The trial judges oral reasons were in large measure a response to the
    submissions that were made to him the previous day. On our review of the record,
    the trial judges path to conviction is apparent. He found guilt beyond a
    reasonable doubt based on a considered and reasoned acceptance of the Crowns
    evidence:
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at
    paras. 53-55, leave to appeal refused, [2007] S.C.C.A. No. 69.

[11]

As to the second issue, we reject the appellant's submission that the
    reasons for sentence demonstrate the trial judge intended to convict of sexual
    assault and not sexual interference for the breast cupping incident. A fair
    reading of the sentencing reasons demonstrates that after initially referring explicitly
    to the sexual interference offence, the trial judge subsequently used the term sexual
    assault as a shorthand to describe it. As we have explained, we are satisfied
    that the trial judge made a finding of sexual purpose in relation to the breast
    cupping incident in his reasons for decision. We do not read the reference to
    absence of a sexual purpose in his reasons for sentence as referring to that
    incident.

[12]

Finally, we accept the Crown's submission that the acquittal on the
    sexual assault charge, which also related to the breast cupping incident, was patently
    an error in law and did not render the verdicts on the sexual interference and
    sexual assault counts inconsistent:
R. v. Plein
, 2018 ONCA 748, 50
    C.R. (7th) 41.

[13]

Based on the foregoing reasons, the appeal is dismissed.

Janet Simmons J.A.

P. Lauwers J.A.

G. Pardu J.A.

[1]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.

[2]

The trial judge said:

However, on one
    occasion it was different. She has indicated she was in front of the sink and
    that he groped her breast, not briefly, but for several seconds he actually
    groped her breast and in a sexual manner.


COURT OF APPEAL FOR ONTARIO

CITATION: Bobel v. Humecka, 2021 ONCA 757

DATE: 20211026

DOCKET: M52506

Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
    (
ad hoc
)

BETWEEN

Przemyslaw Bobel

Plaintiff (Moving Party)

and

Edyta Maria Humecka and Raymond
    Alexander Patten

Defendants (Responding Parties)

Przemyslaw Bobel, acting in person

Alexander Boissonneau-Lehner, for the responding parties

Heard: in writing

REASONS FOR DECISION

[1]

By judgment released February 2, 2021, the moving partys claim against
    the responding parties (his former romantic partner and her current partner)
    for malicious prosecution, nervous shock, false imprisonment, negligence and
    other collateral claims was dismissed (the Judgment). The trial judge
    subsequently ordered that the moving party pay the responding parties costs,
    fixed at $75,000, inclusive of HST and disbursements (the Costs Order).

[2]

The moving party now brings a motion in writing for:

(a)

leave
    to appeal the so-called Ancillary Claim portion of the Judgment;

(b)

an
    extension of time to appeal the Judgment;

(c)

leave
    to appeal the Costs Order;

(d)

leave
    to file fresh evidence on appeal;

(e)

if
    leave to file fresh evidence is granted, leave to file uncommissioned affidavit
    evidence.

[3]

The moving party does not require leave to appeal the Judgment, but he
    does require an extension of time to appeal, since he is out of time.

[4]

The factors to be considered in granting an extension of time to appeal
    are set out in
Enbridge Gas Distribution Inc. v. Froese
, 2013 ONCA
    131, 114 O.R. (3d) 636, at para. 15. The court must consider:

(a)

whether
    the moving party formed a
bona fide
intention to appeal within the
    relevant time period;

(b)

the
    length of, and explanation for, the delay;

(c)

any
    prejudice to the responding parties caused, perpetuated, or exacerbated by the
    delay; and

(d)

the
    merits of the proposed appeal.

[5]

Accepting the moving partys unsworn affidavit in support of the
    motion at face value, there is no evidence that the moving party formed a
bona
    fide
intention to appeal before he filed his motion on May 26, 2021. While
    the delay is not particularly lengthy (just under three months), the moving
    party has provided no explanation for it.

[6]

Considering the last two factors together, we find the appeal has no
    merit and it would be prejudicial to the responding parties to continue the
    stay of the Costs Order and to subject them to further costs in resisting an
    unmeritorious appeal. The trial judge gave thorough and careful reasons,
    grounded in large measure in his rejection of the moving partys evidence as
    not credible or reliable and his acceptance of the responding parties evidence.
    Excusing the delay and permitting the moving party to pursue an unmeritorious
    appeal would cause further prejudice to the responding parties. We dismiss the
    motion for an extension of time to appeal.

[7]

We also dismiss the motion for leave to appeal the Costs Order. Again,
    the trial judge considered the applicable principles pertaining to costs. The
    award was reasonable having regard to the length of the trial (8 days), the
    conduct of the moving party that needlessly extended the action, thereby
    increasing the costs, the unfounded allegations against the responding parties
    counsel, and the responding parties offer to settle. The moving party has
    identified no error in principle in the award of costs. The award itself is
    entitled to deference and is reasonable.

[8]

The motion is dismissed, with costs to the responding parties fixed at
    $2,500, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

B. Zarnett J.A.

Wilton-Siegel J.