COURT OF APPEAL FOR ONTARIO

CITATION: Mizrachi Organization of Canada v. Bernstein, 2017
    ONCA 275

DATE: 20170404

DOCKET: C62581

Juriansz, Lauwers and Hourigan JJ.A.

BETWEEN

Mizrachi Organization of Canada, Kurt Rothschild
    in his capacity as Trustee for Torah V'Avodah Congregation, Jack Kahn in his
    capacity as Trustee for Torah V'Avodah Congregation and Joseph Rosenfield in
    his capacity as Trustee for Torah V'Avodah Congregation

Applicants

(Respondents)

and

Harry Bernstein, Yisroel Zlotnick, James Beliak,
    George Vitriol, David Yunger, Binyamin Zlotnick and Torah V'Avodah Congregation

Respondents

(Appellants)

Colby Linthwaite, for the appellants

Gregory M. Sidlofsky, for the respondents

Heard: March 28, 2017

On appeal from the judgment of
    Justice Michael A. Penny of the Superior Court of Justice, dated July 25, 2016.

ENDORSEMENT

[1]

The appellants appeal from the order of the motion judge dated July 25,
    2016. The dispute before the motion judge related to control of the premises of
    a religious organization. The dispute is intense and extensive. The only matter
    on which the parties agree is that the appellant, Torah VAvodah Congregation
    (hereinafter "TVA"), is a religious organization under the
Religious
    Organizations Lands Act,
R.S.O. 1990, c. R.23. Legal title to the
    premises  the subject of the dispute  is held by the trustees of TVA.

[2]

The dispute is so fundamental that the parties do not agree about who
    are members of TVA or how membership should be determined. In fact, both sides
    hesitate to recognize individuals associated with the other as members of TVA.
    They also dispute who the trustees of TVA are or should be, who the beneficial
    owner of the property is, whether the respondent  Mizrachi Organization of
    Canada ("Mizrachi")  has a claim to the premises by way of resulting
    or constructive trust, and whether the original trustees were acting as
    trustees of TVA or Mizrachi when they resolved to sell the premises. This list
    is not exhaustive.

[3]

Wisely, the motion judge ordered that the bulk of the application
    proceed to trial with a direction that the parties attempt settlement after
    full document production and discovery, and consider resolving the issues at a
    hybrid application/trial of issues.

[4]

The motion judge, however, did determine one matter. He declared a
    meeting of TVA held November 16, 2013 to be invalid and set aside the results
    of the meeting. Two resolutions had purportedly been passed at the meeting. The
    first purported to remove the individual respondents as trustees of TVA and to
    replace them with a new slate of trustees. The second resolution purported to
    close the membership of TVA. The motion judge set aside these resolutions and
    declared the original trustees were the trustees of TVA.

[5]

The motion judge held proper notice of the meeting was not given. While
    he was satisfied that the notice given of the meeting complied with the
    provisions of s. 18(2) of the
Religious Organization Lands Act
, he
    went on to find:

[T]o be valid notice, the notice must be effective. In other
    words, formal compliance with the provisions of subs. 18(2) of the [
Religious
    Organizations Lands Act,
R.S.O. 1990, c. R.23] is not sufficient where
    there is evidence that the notice did not reach parties with an interest.

[6]

The motion judge also took into consideration that the appellants chose
    a method of giving notice which they knew would have little chance of reaching
    the respondents. The correctness of the motion judges conclusion that notice
    as stipulated by the statute was inadequate is open to considerable debate, but
    it is a debate we need not resolve to decide the appeal. The question is better
    decided on a full record.

[7]

In our view, the motion judge erred by not ordering the entire
    application proceed to trial. He ought not to have finally determined that the
    November 16, 2016 meeting and the resolutions passed thereat were invalid
    before the more fundamental questions were determined. The question of
    membership is more fundamental and has the potential to affect most of the
    other questions. For example, if the individuals who are named as original
    trustees are not members of TVA they would not have the capacity to be
    trustees.

[8]

We gather the motion judge intended to put into place an interim
    arrangement pending trial. He said:

It is clear that there is a bona fide dispute over ownership
    and control of TVA and the Wilson property. In the circumstances, it is
    appropriate that the status quo be preserved, to the extent consistent with
    public safety and asset value preservation, pending the outcome of this
    litigation. The applicant trustees are fiduciaries. They shall continue to
    administer TVA and the Wilson property in the ordinary course of business,
    consistent with their fiduciary obligations. However, no transactions may be
    taken outside the ordinary course of business (such as a sale or mortgage of
    the property) without prior notice to all parties and the appropriate sanction
    of the court.

[9]

This inclusion of control of TVA as one of the matters to be decided
    at trial seems incongruous with a declaration that the original trustees are
    validly in office. Likewise, the unequivocal determination that their removal
    from office was improper rests uncomfortably with his order that the reinstated
    trustees cannot transact any business outside the ordinary course without prior
    notice to all parties and the appropriate sanction of the court.

[10]

We allow the appeal on the basis that the motion judge erred by not
    ordering the entire application proceed to trial. We set aside paragraphs 1, 2,
    3, and 4 of the motion judges order, and add to the issues listed in paragraph
    8 the questions: whether proper notice of the November 16, 2016 meeting was
    given and whether the resolutions passed at the meeting are valid. We are
    satisfied the motion judge intended to preserve the status quo with the
    original trustees in office pending trial. Therefore, we would not disturb
    paragraphs 5 or 7 of his order.

[11]

The parties may make written submissions (not more than five pages)
    regarding the costs of the appeal to be filed by April 17, 2017.

"R.G.
    Juriansz J.A."

"P. Lauwers
    J.A."

"C.W.
    Hourigan J.A."


COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario Securities
    Commission v. MRS Sciences Inc., 2017 ONCA 279

DATE: 20170404

DOCKET: C62121

Juriansz, Lauwers and Hourigan JJ.A.

BETWEEN

Ontario Securities Commission

Respondent

and

MRS Sciences Inc. (formerly Morningside Capital
    Corp.),
America Derosa,
Ronald Sherman,
Edward Emmons
,
Ivan
    Cavric
and Primequest Capital Corporation

Appellants

Peter-Paul E. DuVernet, for the
    appellants

Scott C. Hutchison, Samuel Walker and Derek J. Ferris,
    for the respondent

Heard: March 28, 2017

On appeal from the decision of the Divisional Court
    (Justices Anne M. Molloy and David L. Corbett, Regional Senior Justice Robbie
    D. Gordon dissenting), dated November 26, 2016, with reasons reported at 2015
    ONSC 6317, affirming the decisions of the Ontario Securities Commission, dated
    December 6, 2011, December 5, 2013 and June 4, 2014.

By the Court:

A.

Introduction

[1]

The
Rules of Procedure
of the Ontario Securities Commission
    (the Commission) contemplate two phases in a proceeding before it: (1) a
    merits hearing, where the Commission makes findings about alleged breaches of
    the
Securities Act
, R.S.O. 1990, c. S.5; and (2) a sanctions hearing,
    where the Commission decides what sanctions and costs, if any, are appropriate.

[2]

The issue on this appeal is whether these two hearings are each part of
    a single, quasi-judicial proceeding that must be presided over by the same
    decision-maker, or if each hearing is a distinct proceeding that can be
    presided over by different decision-makers should the circumstances warrant it.
    The Commission adopted the latter view.

[3]

On appeal, the Divisional Court was unanimous that the Commissions
    decision should be reviewed on a reasonableness standard, but it split on the
    outcome. The minority held that the merits hearing and sanctions hearing were
    two phases of a single proceeding that should have the same decision-maker. The
    majority held that, while the minoritys interpretation was a reasonable one,
    it was not the only reasonable interpretation. They concluded that the
    Commissions interpretation was also reasonable and, accordingly, dismissed the
    appeal.

[4]

For the reasons that follow, we dismiss the appeal of the Divisional Courts
    order.

B.

Background

[5]

In 2007, the Commission issued a notice of hearing against MRS Sciences
    Inc. and the individual appellants alleging various breaches of the
Securities
    Act
arising from a scheme to sell shares in a high return venture fund.

[6]

The merits hearing took place in 2009 before Commissioners Patrick
    LeSage and Carol Perry. On February 2, 2011, the panel released its decision holding
    that the appellants had sold securities without being registered as dealers and
    traded securities without a prospectus. The Commissioners dismissed all other
    allegations.

[7]

On February 10, 2011 and February 14, 2011 respectively, Commissioner
    LeSages and Commissioner Perrys five-year appointments to the Commission
    expired. In May 2011, the Secretary to the Commission informed the parties that
    the Commissioners terms had expired and that neither would be scheduled to
    preside over the sanctions hearing.

[8]

The appellants objected and brought a preliminary motion challenging the
    jurisdiction of the differently constituted sanctions panel to preside over the
    sanctions hearing. That motion was dismissed by the Commission on December 6,
    2011.

[9]

In January 2012, the appellants filed a notice of appeal and a notice of
    application for judicial review of the Commissions decision on the panel
    composition issue. In December 2012, the Divisional Court dismissed the appeal
    and quashed the application for judicial review as premature.

[10]

The sanctions hearing proceeded over four days in late 2013 and early
    2014. Commission staff adduced transcripts of the merits hearing before the
    sanctions panel. The appellants objected, arguing that the transcripts should
    be excluded. The sanctions panel admitted the transcript evidence in a decision
    dated December 5, 2013.

[11]

The sanctions panel released its sanctions decision on June 4, 2014. It
    ordered 10-year trading bans, 10-year director and officer bans, reprimands,
    administrative penalties and costs against the appellants.

C.

Divisional Court Judgment

[12]

The appellants appealed the 2011 panel composition decision, the 2013
    decision to admit transcript evidence from the merits hearing in the sanctions
    hearing, and the 2014 sanctions decision to the Divisional Court.

[13]

Gordon R.S.J., writing in the minority, rejected the appellants
    submission that the standard of review was correctness and held that the
    applicable standard of review was reasonableness.

[14]

Gordon R.S.J. proceeded to hold that the Commissions decision was
    unreasonable. In his view, the merits hearing and the sanctions hearing were
    both part of a single, quasi-judicial process initiated by a notice of hearing.
    As such, s. 4.3 of the
Statutory Powers Procedures Act
, R.S.O. 1990,
    c. S.22 (SPPA) operated to extend the Commissioners terms of office until
    the entire proceeding was concluded. That section provides:

4.3
If
    the term of office of a member of a tribunal who has participated in a hearing
    expires before a decision is given, the term shall be deemed to continue, but
    only for the purpose of participating in the decision and for no other purpose.

[15]

Gordon R.S.J. also held that the principles of procedural fairness
    supported the view that a new panel ought not to be appointed when the merits
    panel continued to be available.

[16]

Gordon R.S.J. dismissed the appellants appeal from the sanctions decision,
    holding that the decision revealed that the sanctions panel received the
    parties positions, considered the aggravating and mitigating factors, and
    explained why it imposed the sanctions it did for each party. He likewise
    dismissed the ground of appeal that it was unfair to put the merits hearing
    transcripts before the sanctions panel.

[17]

Molloy and Corbett JJ. agreed with Gordon R.S.J. that the standard of
    review should be reasonableness. They also agreed with him that one possible,
    and reasonable conclusion is that the merits hearing and the sanctions hearing
    are two stages of a single quasi-judicial hearing, such that s. 4.3 of the SPPA
    would be operative: see para. 40. However, the majority held that this was not
    the only reasonable interpretation and that the Commissions interpretation was
    also reasonable, as was its conclusion that the principles of procedural
    fairness had not been violated. In support of their finding of reasonableness,
    the majority cited the logistical challenges the Commission had identified,
    including that it has a limited number of members who are all appointed to
    fixed five-year terms.

[18]

The majority concurred with the decision of Gordon R.S.J. on the
    transcript and sanctions issues.

D.

Analysis

[19]

On appeal to this court, the appellants submit that the Divisional Court
    erred in not finding that the standard of review is correctness. They argue
    that the issues before the Commission concerned true questions of
vires
and matters of general importance to the legal system as a whole within the
Dunsmuir
exception: see
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R.
    190, at paras. 59-60.

[20]

We disagree. We are not satisfied that the issues in this appeal fall
    within one of the few recognized exceptional categories of cases where the
    presumption of reasonableness is rebutted.

[21]

The issues surrounding the appointment of a sanctions panel is not an
    issue of true
vires
that attracts a correctness standard. Questions of
    true
vires
are exceedingly rare, and an administrative bodys
    interpretation of its home statute is presumptively reviewed on a
    reasonableness standard:
Alberta (Information and Privacy Commissioner) v.
    Alberta Teachers Association
, 2011 SCC 61, [2011] 3 S.C.R. 654, at para.
    34. There is no doubt that the Commission had jurisdiction over the proceeding
    against the appellants. The decision on how the Commission chooses to allocate
    its adjudicative resources in constituting the sanctions panel is a matter that
    falls squarely within its expertise.

[22]

We agree with the majority of the Divisional Court, who said at para.
    43:

In this case, the sanctions panel considered the impact on the
    Commission and its procedures if the
SPPA
applied to extend the term of
    panel members who had participated in a merits hearing through to the end of
    the sanction hearing. Such an interpretation, in the view of the panel, would
    not be consistent with the makeup of the Commission and how it operates.
    Further, the panel concluded that such an interpretation of the
SPPA
was
    not mandated by the language of the
SPPA
itself. The panel held that the
SPPA
contemplates that a hearing and a proceeding are not
    synonymous, even within that statute. Likewise, the panel considered that there
    is a difference between the words hearing and proceeding within the
    Commissions own Rules of Procedure. In particular, rule 17.3(1) provides that,
    following the merits hearing, Unless the parties to a
proceeding
agree
    to the contrary, a
separate hearing
shall be held to determine the
    matter of sanctions and costs.

[23]

Nor is this a matter of general importance. Similar to the situation in
McLean
    v. British Columbia (Securities Commission)
, 2013 SCC 67, [2013] 3 S.C.R.
    895, the composition of a sanction panel is
a nuts-and-bolts question of statutory interpretation
    confined to a particular context: see para. 28.

[24]

The appellants also renew their objection to the composition of the
    sanctions panel. They complain that the appointment of a new panel is not
    authorized by statute and is procedurally unfair.

[25]

We would not give effect to this submission. We accept the reasoning of
    the majority that both the interpretation advanced by the appellants and the
    one adopted by the Commission are reasonable. In
McLean,
at paras. 37-39,
    the Supreme Court held that in some cases a statutory provision can be given
    two opposing but equally reasonable interpretations.

[26]

We see no error in the majoritys reasoning that, having regard to the
    scheme of the SPPA, the
Securities Act
, the
Rules of Procedure
of the Commission, and the legislated policy decision to maintain a Commission
    that is small in a number with a rotating composition, the Commissions
    interpretation was a reasonable one.

[27]

There is also no procedural unfairness or breach of natural justice in
    constituting a different sanctions panel. Courts have frequently referred
    matters back to a different administrative tribunal for a decision on penalty
    and on occasion specifically indicated that a different panel should deal with
    those issues:
Sussman Mortgage Funding Inc.  v. Ontario (Superintendent of
    Financial Services)
(2005), 205 O.A.C. 237 (C.A.), at para. 3;
Seed
    (Re)
(1992), 55 O.A.C. 161 (Div. Ct.); and
Banks v. Ontario
    (Securities Commission)
(2005), 204 O.A.C. 290 (Div. Ct.).

[28]

Nor is the principle of
audi alteram partem
violated on the
    facts of this case. The panel that decided the issue of sanctions and costs did
    so based on the evidence and submissions that it heard on those issues.

[29]

The appellants also assert two additional grounds of appeal that are closely
    related to the panel composition issue. First, they argue that the Commission
    should not have admitted the transcripts from the merits hearing. We disagree.
    There was no unfairness in admitting transcripts that were relevant to the
    issues before the sanctions panel. The appellants were free in the sanctions
    hearing to adduce evidence relevant to the determination of the sanctions and
    costs, as well as to contest opposing evidence.

[30]

Finally, the appellants submit that the Commissions reasons were
    inadequate. There is no merit to this submission. The reasons were thorough,
    clearly articulated the panels decision and the reasoning process behind the
    decision.

E.

DISPOSITION

[31]

We dismiss the appeal. As agreed among the parties, the Commission is
    entitled to costs of the appeal in the amount of $16,000, inclusive of fees,
    disbursements, and H.S.T.


COURT OF APPEAL FOR ONTARIO

CITATION: Parque Industrial Avante Monterrey, S.A. de C.V. v. 1147048 Ontario
  Ltd., 2017 ONCA 311

DATE: 20170413

DOCKET: C62905

Weiler, Benotto and Roberts JJ.A.

BETWEEN

Parque Industrial Avante
    Monterrey, S.A. de C.V.

Plaintiff

and

1147048 Ontario Ltd. and Advantage Engineering
    Inc.

Defendants

AND BETWEEN

1147048 Ontario Ltd. and Advantage Engineering
    Inc.

Plaintiffs by
    Counterclaim

(Respondents)

and

Prodensa Servicios de
    Consultoria, S.A. de C.V.
and
CK Techonologies, LLC

Defendants by
    Counterclaim

(
Appellant
)

Marcos Cervantes Laflamme, for the appellant

Pavle Masic, for the respondents

Heard and released orally: April 10, 2017

On appeal from the order of Justice S.N. Lederman of the Superior
    Court of Justice, dated September 30, 2016, with reasons reported at
2016 ONSC 6004
.

ENDORSEMENT

[1]

The appellant appeals the dismissal of its
    motion. The appellant sought to stay the respondents counterclaim on the bases
    that Ontario lacks jurisdiction over the counterclaim, Ontario was not the
    convenient forum for the adjudication of the counterclaim, and Ontarios
    jurisdiction was ousted by the arbitration clause agreed to by the parties. The
    appellant did not appeal the motion judges
forum conveniens
finding.

[2]

Following the framework set out by the Supreme
    Court of Canada in
Van Breda v. Village Resorts Ltd.
, 2012 SCC 17, [2012] 1 S.C.R. 572
, the
    motion judge found that there were two presumptive connecting factors tying the
    counterclaim to Ontario. First, applying
Central Sun Mining Inc. v. Vector
    Engineering Inc.
, 2013 ONCA 601, 117 O.R. (3d) 313, the tort of fraudulent
    misrepresentation as pleaded in the counterclaim was committed in Ontario
    because the appellants impugned misrepresentation had been made to and relied
    upon by the respondents in Ontario. Second, the contract, based on the wording
    of the Memorandum of Understanding, as well as evidence of the other elements
    of the contractual matrix of the parties relationship, was made in Ontario.

[3]

The arbitration clause was in a draft Shelter
    Services Agreement that was never signed by the parties. Further, the motion
    judge had before him evidence from the respondents that, it became apparent
    that there was no confirmation that anything had been agreed upon. The motion
    judge held that the parties had never agreed to the arbitration clause as a
    term of their contractual relationship.  As a result, the motion judge
    determined that the clause did not apply to oust Ontarios jurisdiction in
    relation to the counterclaim.

[4]

We see no error in the motion judges factual
    findings or legal conclusions.  He applied the correct legal tests. He was
    entitled to prefer the evidence of the respondents to that of the appellant. It
    was open to him on the record to determine, first, that the respondents had
    made out an arguable case that the two presumptive connecting factors existed
    and were not clearly rebutted by the appellant; and second, that they had not
    agreed on an arbitration clause to govern any disputes. There is no basis to
    interfere with his decision.

[5]

For these reasons, we dismiss the appeal.

[6]

As agreed, the respondents are entitled to costs
    of $11,500, inclusive of disbursements and HST.

K.M.
    Weiler J.A.

M.L.
    Benotto J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Presidential MSH Corporation v. Marr Foster &
    Co. LLP, 2017 ONCA 325

DATE: 20170424

DOCKET: C62490

Cronk, van Rensburg and Pardu JJ.A.

BETWEEN

Presidential MSH Corporation
(formerly The Martin Schmerz Holding Corporation)

Plaintiff (Appellant)

and

Marr, Foster & Co. LLP and Larry Himmelfarb

Defendants (Respondents)

Allan Sternberg and Daniella Murynka, for the appellant

Michael E. Girard, for the respondents

Heard: January 20, 2017

On appeal from the order of Justice Sean F. Dunphy of the
    Superior Court of Justice, dated July 6, 2016.

Pardu J.A.:

A.

INTRODUCTION

[1]

The appellant, Presidential MSH Corporation, appeals
    from summary judgment dismissing its action against the respondents, its former
    accountant Larry Himmelfarb and his firm Marr, Foster & Co. LLP, on the
    ground that the action was barred by passage of a limitation period.

[2]

The respondents

filed the appellants corporate tax returns after their due date. As
    a result, the Canada Revenue Agency (CRA) denied tax credits that would have
    been available had the returns been filed on time. The appellant

suffered damages of approximately
    $550,000 in unpaid taxes, interest and penalties.

[3]

The appellant received the CRAs Notices of Assessment
    disallowing each of the claimed credits on April 12, 2010. When Martin Schmerz,
    a principal of Presidential, got the notices, he immediately asked Himmelfarb
    what to do and how to fix the problem.

[4]

The motion judge inferred that Himmelfarb
    advised Schmerz to retain a tax lawyer to determine how to solve the tax
    problem but did not advise him to obtain legal advice about a professional
    negligence claim against the respondents.

[5]

Schmerz did retain a tax lawyer on April 15,
    2010, but there was no discussion of a possible action against the respondents.
    The lawyer filed a Notice of Objection to the CRA assessments, as well as an
    application for discretionary relief. Himmelfarb

helped the appellant

prepare its appeals to the CRA by drafting the application for
    relief and helping the appellant and its lawyer with whatever else they needed,
    until at least November 2011.

[6]

By letter dated May 16, 2011, the CRA responded
    to the Notice of Objection advising that it intended to confirm the assessments.
    It did in fact confirm them on July 7, 2011.

[7]

The motion judge found that, as late as July
    2011, there was still a reasonable chance that the application for
    discretionary relief would mitigate some or all of the appellants loss.

[8]

On August 1, 2012, the appellant issued its statement
    of claim against the accountants. This was more than two years after the
    initial denial by CRA of the credits, but within two years of CRAs refusal to
    alter the assessments in response to the Notice of Objection.

B.

reasons of the motion judge

[9]

The motion judges decision to grant summary
    judgment against the appellant turned on the application of the
    discoverability provision in s. 5(1) of the
Limitations
    Act
,
2002
, S.O.
    2002, c. 24, Sched. B (the
Act
):

5. (1)
A claim is
    discovered on the earlier of,

(a) the day on which the
    person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv) that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and

(b) the day on which a
    reasonable person with the abilities and in the circumstances of the person
    with the claim first ought to have known of the matters referred to in clause
    (a).

[10]

More particularly, it turned on when the
    appellant first knew that, having regard to the nature of its loss, a
    proceeding would be an appropriate means to seek to remedy it under s.
    5(1)(a)(iv) of the
Act
or, given its
    circumstances and abilities, it ought reasonably to have known this under s.
    5(1)(b).

[11]

The appellant argued before the motion judge
    that a proceeding against the respondents was not appropriate before August 1,
    2010 for three reasons:

1.

No one, including the respondents, had advised it of the possibility
    of a claim against the respondents;

2.

Himmelfarb was actively assisting the appellant
    in its efforts to eliminate its loss by appealing to the CRA; and

3.

The assessments were not confirmed until July,
    2011.

[12]

In his reasons, at para. 67, the motion judge
    defined the issue as whether any or all of these three factors, alone or in
    combination, might reasonably be supposed to have hidden from the plaintiff the
    realization that a proceeding would be an appropriate means to seek a remedy
    for the loss. He concluded that they did not.

[13]

The appellant relied on
Brown v. Baum
, 2016 ONCA 325, 348 O.A.C. 251. In
Brown
, this court upheld the decision of a motion judge that it was not
    legally appropriate for the plaintiff to sue her doctor for professional
    negligence while the doctor was attempting to ameliorate complications
    resulting from a surgery he performed on the plaintiff. The motion judge held
    that
Brown
did not assist the appellant
    because, as he stated at para. 77 of his reasons, the doctor continued to
    treat the patient for the very injury that gave rise to the claim.

[14]

The motion judge appeared to reason that the
    appellants claim would have been appropriate, even while the CRA appeal was
    still ongoing, because the appeal would not have fully eliminated the
    appellants claim against the respondents.
In particular, it would not
    have eliminated the appellants claim for the costs of retaining a tax lawyer
    to prosecute it
:

In the present case, the plaintiff prudently sought to mitigate
    the harm caused by the missed filing deadline through multiple applications for
    administrative relief from CRA and the Minister. If successful, those avenues
    would have reduced or eliminated the tax liability that gave rise to this
    claim.
The relief sought would not have eliminated the
    claim entirely since the professional advice needed to pursue those remedies
    was not without cost and it could not be said whether CRA would grant any of
    the relief sought
. Those applications had some chance of success, but
    ought not to have deterred a duly diligent plaintiff from considering what other
    avenues lay open. The plaintiff did in fact hire litigation counsel to do just
    that in March 2011 prompted  on the record before me  by no other fact than
    the passage of several months without a favourable reply from CRA. [Emphasis
    added.]

[15]

Finally, the motion judge applied this courts
    ruling in
Markel Insurance Company of Canada v. ING Insurance
    Company of Canada
, 2012 ONCA 218, 109 O.R. (3d) 652. In
Markel
, Sharpe J.A. stated, at para. 34, that the term appropriate in s.
    5(1)(a)(iv) of the
Act
means legally
    appropriate. He reasoned:

To give appropriate an evaluative gloss, allowing a party to
    delay the commencement of proceedings for some tactical or other reason beyond
    two years from the date the claim is fully ripened and requiring the court to
    assess the tone and tenor of communications in search of a clear denial would,
    in my opinion, inject an unacceptable element of uncertainty into the law of
    limitation of actions.

[16]

The appellant renews its arguments on s.
    5(1)(a)(iv) of the
Act
before this court,
    submitting that a proceeding against the respondents was not appropriate before
    August 1, 2010 and after the CRA appeal finally ran its course.

C.

ANALYSIS

(1)

The purpose of s. 5(1)(a)(iv) of the
Act

[17]

The motion judge did not have the benefit of this
    courts decision in
407 ETR Concession Company
    Limited v. Day
, 2016 ONCA 709, 403 D.L.R. (4th)
    485. In that case, Laskin J.A. discussed the purpose of s. 5(1)(a)(iv) of the
Act
. He noted, at para. 48:

[I]t seems to me one reason why the legislature added appropriate
    means as an element of discoverability was to enable courts to function more
    efficiently by deterring needless litigation. As my colleague Juriansz J.A.
    noted in his dissenting reasons in
Hare v. Hare
, courts take
    a dim view of unnecessary litigation. [Citation omitted.]

Laskin J.A. also noted, at para. 33,
    that the appropriateness criterion in s. 5(1)(a)(iv) was not an element of the
    former limitations statute or the common law discoverability rule, and that
    this added element
can have the effect  of postponing the start date
    of the two-year limitation period beyond the date when a plaintiff knows it has
    incurred a loss because of the defendants actions.

[18]

Laskin J.A. stated, at para. 34, that whether an
    action is appropriate depends on the specific factual or statutory setting of
    each individual case. Because of this, case law applying s. 5(1)(a)(iv) is of
    limited assistance. And in
Brown
,

Feldman J.A. noted that there any
    many factual issues that will influence the outcome: at para. 21. Further,
    when  s. 5(1)(b) of the
Act
is
    applied
, the determination whether legal action
    would be appropriate   takes into account
what a reasonable person with
    the abilities and in the circumstances of the plaintiff ought to have known.
    Section 5(1)(b) is described as a modified objective test in
Ferrera
    v. Lorenzetti, Wolfe Barristers and Solicitors
, 2012 ONCA 851, 113
    O.R. (3d) 401, at para. 70.

[19]

While I agree that whether a plaintiff ought to have known whether a
    proceeding would have been an appropriate means to seek to remedy damage,
    injury or loss will turn on the facts of each case and the abilities and
    circumstances of the particular plaintiff, prior case law can assist in
    identifying certain general principles. I turn now to certain of those principles.

(2)

The effect of assistance by the defendant to eliminate the loss

[20]

First, the cases suggest that a legal proceeding against an expert
    professional may not be appropriate if the claim arose out of the
    professionals alleged wrongdoing but may be resolved by the professional himself
    or herself without recourse to the courts, rendering the proceeding unnecessary.

[21]

Brown
is a leading example of the suspension of a limitation
    period under s. 5(1)(a)(iv) in these circumstances. In
Brown
, the plaintiff
    suffered severe complications from a breast reduction surgery performed by the
    defendant, Dr. Baum, in March 2009. Dr. Baum performed a series of surgeries between
    May 2009 and June 2010 in an attempt to improve the outcome of the initial
    surgery. The patient brought an action against Dr. Baum, alleging lack of
    informed consent, in June 2012, three years after the initial breast reduction
    surgery but within two years of his last ameliorative surgery. Dr. Baum brought
    a motion for summary judgment to dismiss the action as statute-barred.

[22]

The motion judge held that the limitation period did not commence until
    June 2010, when the last ameliorative surgery was performed. The patients
    proceeding was not appropriate while Dr. Baum continued to treat her.

[23]

This decision was upheld on appeal to this court. Feldman J.A. held, at
    para. 18, that it would not have been appropriate for the patient to sue Dr.
    Baum while he was trying to fix the complications that arose in the original
    surgery because he might have been successful in correcting the complications
    and improving the outcome of the original surgery. Feldman J.A. further stated
    that it is not simply an ongoing treatment relationship that will prevent the
    discovery of the claim under s. 5. In this case, it was the fact that the
    doctor was engaging in good faith efforts to remediate the damage and improve
    the outcome of the initial surgery. This could have avoided the need to sue:
    para. 24.

[24]

Brown
was soon followed in
Chelli-Greco v. Rizk
, 2016
    ONCA 489. A patient sued her dentist for professional negligence within two
    years of her last appointment with the dentist. The dentist moved for summary
    judgment. He argued that the patients claim was time-barred because it was
    discovered more than two years before it was commenced, when the patient first
    complained of dental work performed by the dentist and demanded reimbursement.

[25]

The motion judge denied summary judgment, finding that the patients
    decision to continue treatment with the dentist beyond the date of her
    complaint was based on the dentists endeavours to repair his deficient dental
    work. On appeal, this court stated at para. 4: Given this finding, we see no
    error in the motion judge's conclusion that the respondents action was not
    discovered until after the treatment and the dentist-patient relationship had
    ended and that her action was not statute-barred as a result.

[26]

Resort to legal action may be inappropriate in cases where the
    plaintiff is relying on the superior knowledge and expertise of the defendant, which
    often, although not exclusively, occurs in a professional relationship.
    Conversely, the mere existence of such a relationship may not be enough to
    render legal proceedings inappropriate, particularly where the defendant, to
    the knowledge of the plaintiff, is not engaged in good faith efforts to right
    the wrong it caused. The defendants ameliorative efforts and the plaintiffs
    reasonable reliance on such efforts to remedy its loss are what may render the
    proceeding premature.

[27]

Finally, I note that cases in which a defendant who is an expert
    professional attempts to remedy a loss that a plaintiff has discovered and
    alleges was caused by the defendant (engaging the potential application of s.
    5(1)(a)(iv)) are distinct from  cases in which courts have held that  a client
    has not discovered a potential claim for solicitors negligence until being
    advised by another legal professional about the claim: see
Ferrara
, at
    para. 70; and
Lauesen v. Silverman
, 2016 ONCA 327, 130 O.R. (3d) 665,
    at paras. 25-31. In the latter category of cases, the issue is whether the
    plaintiff knew or ought reasonably to have known
injury, loss or damage
had occurred (under s. 5(1)(a)(i)) that was
caused by or contributed to by
    an act or omission of the defendant
(under ss. 5(1)(a)(ii) and (iii)). Section
    5(1)(a)(iv) comes into focus where the plaintiff knew or ought reasonably to
    have known of his or her loss and the defendants causal act or omission, but
    the plaintiff contends the limitation period was suspended because a proceeding
    would be premature. Although discoverability under more than one subsection of
    s. 5(1)(a) may be engaged in a single case, it is important not to collapse the
    analysis of discoverability of loss or damage and the defendants negligence or
    other wrong with the determination whether legal action is appropriate although
    other proceedings to deal with the loss may be relevant to both questions.

(3)

The effect of other processes which may
    eliminate the loss

[28]

A second line of cases interpreting and applying s. 5(1)(a)(iv) of the
Act
involves a plaintiffs pursuit of other processes having the potential to
    resolve the dispute between the parties and eliminate the plaintiffs loss.

[29]

This approach to discoverability is consistent with  the
    rule in administrative law that it is premature for a party to bring a court
    proceeding to seek a remedy if a statutory dispute resolution process offers an
    adequate alternative remedy and that process has not fully run its course or
    been exhausted: see
Volochay v. College of Massage Therapists of
    Ontario
, 2012 ONCA 541, 111 O.R. (3d) 561, at paras.
    61-70.

[30]

In
407 ETR Concession Company,
for example
,
the
    plaintiff operated a public toll highway. It was authorized under the
Highway
    407 Act, 1998
, S.O. 1998, c. 28, to collect tolls from those who used the
    highway.
There were two methods to collect unpaid tolls: the
    first by civil action and the second by a statutory license plate denial
    process.
In the latter process, the Registrar of Motor Vehicles would
    not validate or issue a drivers permit to any person with an outstanding debt
    owed to the plaintiff.

[31]

The plaintiff sued the defendant in 2013 for unpaid
    tolls incurred through use of the highway between 2008 and 2010. The defendant
    had been put into the statutory license denial process, and his drivers permit
    expired in 2011, after which it was not renewed by the Registrar. He argued
    that the plaintiffs claim was time-barred because it was discovered in 2013,
    outside the limitation period.

[32]

This court held that a civil action was not an
    appropriate means for the plaintiff to recover the unpaid tolls until 2011,
    when the usually effective license plate denial process had run its course:
    para. 39. Given the statutory process, it would have been inappropriate to
    require the plaintiff to prematurely resort to court proceedings while the
    statutory alternative process was ongoing, which might make the proceedings
    unnecessary. In fixing the date when a proceeding is legally appropriate under
    s. 5(1)(a)(iv) of the
Act
, [i]f the claim is
    the kind of claim that can be remedied by another and more effective method
    provided for in the statute, then a civil action will not be appropriate until
    that other method has been used: para. 39.

[33]

Lipson v. Cassels Brock & Blackwell LLP
,
2013 ONCA 165
, 114
    O.R. (3d) 481, is a case that dealt with tax advice and dispute resolution through
    the courts.

[34]

In
Lipson
, the plaintiff and 900 taxpayers donated cash and
    timeshare weeks to registered athletic associations through a Timeshare Tax
    Reduction Program. The promotional material for the program included an opinion
    prepared by the defendant law firm. The defendant stated that it was unlikely
    that Canada Customs and Revenue Agency (CCRA) could successfully deny tax
    credits. However, in 2004, the CCRA notified the plaintiff that it intended to
    disallow his claim for tax credits. Two of the other donors launched
    proceedings as a test case to challenge the CCRAs disallowance. The test case
    settled in 2008 on the basis that the donors would receive tax credits for
    their actual cash donations but not for their donations of timeshare weeks.

[35]

In 2009, the plaintiff commenced a proposed class action for solicitors
    negligence and negligent misrepresentation based on the defendants opinion
    that it was unlikely that the CCRA could successfully deny the tax credits the
    plaintiff anticipated receiving. The defendant opposed certification on the
    grounds that the class members claims were statute-barred. It argued that the
    claims were discoverable in 2006, when the CCRA disallowed the tax credits. The
    motion judge agreed and the plaintiff appealed.

[36]

This court allowed the appeal. It held that it was not clear that the
    plaintiffs claim was discovered in 2004, when the validity of the defendants
    opinion was first challenged by taxation authorities, because discovery of a
    potential problem with the opinion was not discovery of a negligence claim.
    There was merit in the plaintiffs allegation that he did not discover his
    claim until the two representative test cases were settled in 2008. His
    pleadings did not demonstrate that he knew the CCRAs challenge to his credit
    claim would likely be successful prior to 2008. That could not have been
    determined until the conclusion of the dispute with the CCRA.

[37]

Goudge and Simmons JJ.A identified two issues with the motion judges
    reasons:

On the one hand, although the motion judge seems to acknowledge
    that the notices of disallowance were not a final disposition of the tax credit
    issue  and therefore at best provided notice of a potential claim  he appears
    to have concluded that all class members should have known when they received
    the notices of disallowance that the CCRA could successfully challenge their
    claims for tax credits and that the action therefore became statute-barred at
    that time.

Further, the motion judge appears to have treated the class
    members' knowledge that they were incurring professional fees to challenge the
    CCRA's denial of the claimed tax credits as a relevant factor affecting the
    commencement of the limitation period.

In our view,
neither the fact that the
    CCRA was challenging the claimed tax credits nor the fact that the class
    members may have been incurring professional fees to challenge the CCRAs
    denial of the tax credits is determinative of when the class members reasonably
    ought to have known they had suffered a loss as a result of a breach of the
    standard of care on the part of Cassels Brock
.

As pleaded in the fresh as amended statement of claim, the
    Cassels Brock opinion was that it was unlikely that the CCRA could successfully
    deny the claimed tax credits.
Accordingly, the fact of a
    CCRA challenge to the tax credits did not, in itself, mean the challenge would
    likely be successful or make the Cassels Brock opinion invalid
. Further,
    even accepting that receipt of the notices of disallowance prompted class
    members to obtain professional advice and to launch test case litigation to
    challenge the denial of the tax credits, that conduct does not demonstrate when
    class members knew, or ought reasonably to have known, that the test case
    litigation would not likely be entirely successful. [Citations omitted.]
    [Emphasis added.]

[38]

I note that, although the court in
Lipson
did not explicitly
    address the appropriateness criterion in s. 5(1)(a)(iv) of the
Act
,
    its reasoning would be accurately described as holding that the plaintiff did
    not discover that a proceeding against the defendant was necessary or
    appropriate until the tests cases were resolved in 2008. Before then, and
    particularly in 2004, the mere fact that the taxation authorities had resisted
    the plaintiffs tax credits claim did not give the plaintiff knowledge that commencing
    a proceeding against the defendant in court would be necessary or an appropriate
    means to recover his losses.

[39]

Non-administrative, alternative processes have also been seen in other
    cases as having the potential to resolve a dispute, thus rendering a court
    proceeding inappropriate or unnecessary.

[40]

For example, in
Independence Plaza 1 Associates, L.L.C. v.
    Figliolini
, 2017 ONCA 44
,
a plaintiff sued on a foreign judgment in Ontario. The defendant,
    the foreign judgment debtor, said that the plaintiffs action was time barred. The
    issue was whether the plaintiffs claim on the foreign judgment was discovered
    at the time of the foreign trial judgment or at the time of the decision on the
    appeal from that judgment in the foreign jurisdiction.

[41]

This court held that the claim was not discovered, and
    thus the limitation period did not begin to run, until the foreign appeal
    process had run its course. This was because it was not legally appropriate for
    the plaintiff to commence a legal proceeding in Ontario until then. Strathy C.J.O.
    observed at para. 77:

In the usual case, it will not be legally appropriate to
    commence a legal proceeding on a foreign judgment in Ontario until the time to
    appeal the judgment in the foreign jurisdiction has expired or all appeal
    remedies have been exhausted.
The foreign appeal process
    has the potential to resolve the dispute between the parties. If the judgment
    is overturned, the debt obligation underlying the judgment creditors
    proceeding on the foreign judgment disappears.

[42]

In
Figliolini
, Strathy C.J.O. approved of the reasoning of
    Chiappetta J. in
U-Pak Disposals (1989) Ltd. v. Durham (Regional
    Municipality)
, 2014 ONSC 1103.
U-Pak
involved a motion to amend a statement of claim, including to add
    plaintiffs
in a proceeding against the defendant municipality. The
    defendant had issued a request for tender for the contracting of waste disposal
    services for residents of the municipality. The defendant argued that the
    claims of the new proposed plaintiffs, which arose out of alleged wrongdoing by
    the defendant in the tender process, were statute-barred, as  they would be
    added  more than two years after the tender process began but less than two years
    after it concluded.

[43]

Master Abrams disagreed. She permitted the amendment of the statement of
    claim, and the defendant to plead the limitation period. She held that there
    was a plausible argument the claim was not discoverable until the tender process
    ended: see 2013 ONSC 6535.

[44]

Her decision was upheld by Chiappetta J., who wrote, at paras. 24-25:

The Master concluded that legally appropriate could be
    interpreted to include circumstances where the commencement of a proceeding
would affect a legal relationship between the parties
.
    The legal implications for taking action during the course of an active tender
    process were known to the Plaintiff; under the terms of the tender, Durham
    Region would have been within its legal right to disqualify the Plaintiff and
    the proposed plaintiffs' bid.

In my view, the Master correctly concluded there is a
    potentially successful argument to be made by the prospective plaintiffs that
    their claims were not legally appropriate until the whole tender process
    expired because a claim during the process would legally disqualify them from
    continuing to participate in the very process that may upon its completion form
    the foundation of the claim. If this argument were accepted, the proposed
    plaintiffs could not have had a viable claim as of [the date of the first
    alleged wrongdoing by the defendant in the tender process] because the
    appropriate means element of discoverability had not yet crystallized.
    [Emphasis added.]

Thus,
U-Pak
provides another example of a
    scenario in which it may not be appropriate or necessary for a plaintiff to
    commence a court proceeding while an alternative process that could potentially
    affect or eliminate its dispute with the defendant remains ongoing.

[45]

Many of the cases dealing with the effect of alternative processes on
    the appropriateness of a court proceeding have applied the concept of a
    proceeding being legally appropriate articulated by this court in
Markel
.
Markel
involved a dispute between sophisticated insurers claiming
    indemnity under statutory loss transfer rules. The limitations issue that arose
    concerned whether a legal proceeding was inappropriate while settlement
    discussions between the parties were ongoing and thus, whether a claim was not
    discovered until these negotiations broke down.

[46]

Recall that, in
Markel
, the court held that the term
    appropriate in s. 5(1)(a)(iv) means legally appropriate. This
    interpretation avoided entangling courts in the task of having to assess [the]
    tone and tenor of communications in search of a clear denial that would
    indicate the breakdown of negotiations between the parties. That would permit a
    plaintiff to delay the discoverability of a claim for some tactical or other
    reason and inject an unacceptable element of uncertainty into the law of
    limitation of actions (at para. 34).

[47]

Similarly, in
407 ETR Concession Company
, at para. 47, Laskin
    J.A. stated that the use of the term legally appropriate in
Markel
signified that a plaintiff could not claim it was appropriate to delay the
    start of the limitation period for tactical reasons,
or
    in circumstances that would later require the court to decide when settlement
    discussions had become fruitless
 (emphasis added).

[48]

These cases instruct that if a plaintiff relies on the exhaustion of
    some alternative process, such as an administrative or other process, as suspending
    the discovery of  its claim, the date on which that alternative process has run
    its course or is exhausted must be reasonably certain or ascertainable by a court.
    In
Markel
, the date on which settlement discussions between the
    parties ran their course, and thus the date on which the plaintiffs claim was
    purportedly discovered, was not sufficiently certain or ascertainable by the
    court. By contrast, in
Figliolini
it was reasonably certain that the
    foreign appeal process had been exhausted on the day that the foreign appellate
    court had released its judgment, and in
Lipson
it was reasonably
    certain that the CCRA appeal process ran its course on the date that the 2008
    test cases were settled.

(4)

Application to this case

[49]

In the present case, I conclude that the motion judge erred in holding
    that the appellant knew or ought to have known that its proceeding was
    appropriate as early as April 2010, when it received the CRAs Notices of
    Assessment disallowing its tax credits. In my view, the proceeding was not
    appropriate, and the plaintiffs underlying claim was not discovered, until May
    2011, when the CRA responded to the appellants Notice of Objection and advised
    that it intended to confirm its initial assessments. The motion judge erred at
    para. 67 of his reasons by equating knowledge that the defendants had caused a
    loss with a conclusion that a proceeding would be an appropriate means to seek
    a remedy for the loss. I say this for the following reasons.

[50]

First, the motion judge erred in distinguishing the present case from
Brown
when applying the appropriateness criterion under s. 5(1)(a)(iv) of the
Act
.
    The  appellant looked to its professional advisors, the respondents, to provide
    accounting and tax advice. It relied on the respondents advice to retain a tax
    lawyer to object to the CRAs Notices of Assessment. As did the doctor in
Brown
,
    Himmelfarb attempted to ameliorate the loss to the appellant that the
    respondents caused in failing to file the appellants tax returns in time.

[51]

Himmelfarbs involvement in the appellants appeal to the CRA was not
    trivial. The motion judge held at para. 78 of his reasons that Himmelfarb's
    role was of a supporting nature only and that he was not directing the case.
    While this may be true, it unduly discounts Himmelfarbs role in attempting to
    resolve the appellants dispute with the CRA. Himmelfarb recommended that the
    appellant obtain a tax lawyers advice.
He drafted the
    application for discretionary relief. He helped the appellant and its lawyer
    with whatever else they needed.

[52]

Had Himmelfarb, together with the tax lawyer that he
    advised the appellant to enlist in aid, prosecuted the CRA appeal successfully,
    the appellants loss would have been substantially eliminated, and it would
    have been unnecessary to resort to court proceedings to remedy it. The fact
    that the appellant would have been unable to recover the fees it paid the tax
    lawyer, except through litigation, is in my view inconsequential. It is the
    claim that is discoverable, not the full extent of damages the plaintiff may be
    able to recover. It would not have been appropriate under s. 5(1)(a)(iv) of the
Act
for the appellant to commence a proceeding
    until Himmelfarbs ameliorative efforts concluded
.

[53]

Similarly, the CRA appeal process had the potential to eliminate the
    appellants loss. As an alternative process to court proceedings, it could have
    resolved the dispute between the appellant and the respondents. These results
    would have made a proceeding unnecessary. It would not have been appropriate
    for the appellant to commence a proceeding until the CRA appeal process was
    exhausted in May 2011.

[54]

Likewise, this courts decision in
Markel
, as interpreted in
407
    ETR Concession Company
, about the meaning of the concept of a proceeding
    being legally appropriate under s.
5(1)(a)(iv) of the
Act
supports rather than undermines the appellants position in this
    case. This is not a case where the claimant sought to toll the operation of the
    limitation period by relying on the continuation of an alternative process
    whose end date was uncertain or not reasonably ascertainable. It was clear that
    the end date of the CRA appeal in this case was May 16, 2011, when the CRA responded
    to the appellants Notice of Objection advising that it intended to confirm the
    assessments. In my view, the motion judge erred in invoking
Markel
to dismiss the appellants claim as time barred.

D.

disposition

[55]

Accordingly, I would allow the appeal, set aside the order of the motion
    judge and dismiss the motion for summary judgment.  I would award costs of the appeal
    to the appellant in the agreed sum of $15,000.00, inclusive of disbursements
    and taxes.

Released:
GP APR 24
    2017

G. Pardu J.A.

I agree. E.A. Cronk
    J.A.

I agree. K. van
    Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Prisecaru v. Intact Insurance, 2017 ONCA 303

DATE: 20170412

DOCKET: C62443

Doherty, MacFarland and Rouleau JJ.A.

BETWEEN

Lidia Prisecaru and Corneliu Prisecaru

Appellant

and

Intact Insurance

Respondent

Lidia Prisecaru and Corneliu Prisecaru, appearing in
    person

Vanda Santini, for the respondent

Heard:  April 7, 2017

On appeal from the judgment of Justice R.D. Reilly of the
    Superior Court of Justice, dated July 13, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The appellant see this as a broad question of fairness and ensuring his
    familys wellbeing.  However, as the trial judge tried to make clear, this was
    in fact a case about the nature of the insurers obligation under the contract
    and their conduct toward the appellant as measured against those obligations.
    On the trial judges findings, the insurer fully met its obligations.  Those
    findings were available on the evidence.  We cannot interfere with those
    findings of fact.

[2]

The appeal is dismissed.  The respondent is entitled to costs.  The
    respondents request is not unreasonable, however, in the circumstances, we
    will fix costs at $2,500, if demanded.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fortunato, 2017 ONCA 328

DATE: 20170424

DOCKET: C60649

MacPherson, Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicky Fortunato

Appellant

Gregory Lafontaine, for the appellant

David Friesen, for the respondent

Heard: April 21, 2017

On appeal from the convictions entered on March 20, 2015
    by Justice Stephen Bale of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant Nicky Fortunato appeals from his convictions by Bale J. of
    the Superior Court of Justice for two counts of fraud over $5,000 and two
    counts of uttering a forged document. He received a global sentence of three
    years imprisonment for these offences.

[2]

During a two day period in October 2012, the appellant cashed two stolen
    bank drafts totalling $847,000 at two Ontario casinos. He cashed the first
    draft, worth $365,000, at Fallsview casino on October 5, 2012, just a few hours
    after the drafts had been stolen from the Bank of Montreal. He cashed the
    second draft, worth $482,000, at Casino Rama the next day.

[3]

The appellant did not testify, relying instead on his statement to
    police, which was tendered as part of the Crown case. In his statements, he
    claimed to have received the drafts from a gambler he knew only as Pasquale
    as partial repayment of a loan. The appellant conceded at trial that the bank
    drafts were stolen, but claimed that he did not know this at the time he cashed
    them.

[4]

The trial judge convicted the appellant. He first considered the
    doctrine of recent possession. He found that the appellants explanation for
    his possession of the bank drafts was incapable of belief and concluded that
    the appellant knew that the drafts had been stolen. He also found that the
    appellants statement to the police was a fabrication. In his view, it was
    inherently improbable that the appellant had loaned anyone close to $1 million,
    especially someone that he barely knew, considering his income, his assets, and
    his current financial situation. He determined that the police statement was
    offered for the purpose of concealing his i
nvolvement
    in the fraud and thus did not raise a reasonable doubt as to the appellants
    guilt. Having rejected the veracity of the appellants police statement and
    having found no other reasonable explanation for the appellants possession of
    the bank drafts, the trial judge found the appellant guilty beyond a reasonable
    doubt on all four counts charged.

[5]

The appellant contends that the trial
    judge made three legal errors in reaching his decision.

[6]

First, the appellant submits that the
    trial judge erred by rejecting the appellants defence of honest but mistaken
    belief as it pertained to the
mens rea
of the alleged offences.

[7]

We do not accept this submission. In
    our view, the trial judge correctly stated the mental element for the offences
    and found that the appellant had it.

[8]

Second, the appellant contends that the
    trial judge misapprehended the doctrine of recent possession and, therefore,
    misapplied it to convict him.

[9]

We disagree. The trial judge correctly
    stated the doctrine and was entitled to find that the appellant knew that the
    bank drafts were stolen after rejecting the appellants explanation.

[10]

Third, the appellant asserts that the
    trial judge erred by relying on the appellants exculpatory statement to the
    police in the absence of any independent evidence of concoction.

[11]

We disagree. The trial judge
    specifically disavowed reliance on this category of evidence in support of his
    findings of guilt.

[12]

The appeal is dismissed.

J.C. MacPherson J.A.

Janet Simmons J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gayle, 2017 ONCA 297

DATE: 20170412

DOCKET: C59712 and C60647

Sharpe, Rouleau and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elizabeth Gayle

Appellant

and

Fedrick Gayle

Appellant

Delmar Doucette and Angela Ruffo, for the appellant
    Elizabeth Gayle

Paul Alexander, for the appellant Fedrick Gayle

David Finley and Lorna Bolton, for the respondent

Heard: February 1-2, 2017

On appeal from the conviction entered on June 26, 2013 by
    Justice K. van Rensburg of the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

Tiffany Gayle was 15 years old when she was
    brutally beaten to death in her home. A jury found her father Fedrick and her
    step-mother Elizabeth guilty of first degree murder. Both appeal on the basis
    that the trial judge erred with respect to certain rulings and in her
    instructions to the jury.

FACTS

[2]

In January 2009, Tiffany Gayle, then 14, was
    sent from Jamaica to Brampton, Ontario by her mother. She arrived with her
    half-siblings, her older sister Samantha and her younger brother Fedrick Jr.
    The three children shared the same father but had different mothers. They were
    all going to live with Fedrick and Elizabeth.

[3]

Several witnesses testified to Tiffanys
    unhappiness in Canada. After only 5 weeks, Samantha had been sent back to
    Jamaica. Tiffany was worried about being sent back as well. She told her
    teacher and a friend that there were arguments at home, mainly with her
    step-mother. In the days leading up to her death, she was sad and depressed.
    She missed a dance exam because she was afraid to ask her father to sign the permission
    slip.

[4]

On the morning of June 11, 2010, Tiffany told a friend
    that she had been in an argument with her step-mother that lasted all night. By
    the next morning she was dead in the bathtub of the downstairs bathroom.

[5]

Elizabeth gave three statements to the police,
    on June 12, June 15 and June 16, 2010. Only the first and the third were
    adduced in evidence at trial. On June 12, she told the police that she did not
    know who committed the murder. She said that she had gone to bed late on the
    night of June 11, fell asleep, woke up the next morning and found Tiffanys body.

[6]

On June 16, Elizabeth told police that Fedrick had
    killed Tiffany. She outlined what had occurred on the night of June 11. She
    said that she asked Tiffany to come to the garage to give her a lecture about
    her misbehavior involving an alleged lie. Elizabeth chose the garage so that Fedrick
    would not hear the conversation. While she was lecturing Tiffany, Fedrick came
    in. When he heard of Tiffanys misbehavior, he snapped, picked up a baseball
    bat and hit Tiffany with it. He then ordered Elizabeth out of the garage. She
    complied. She saw Tiffany and Fedrick go into the basement. Elizabeth came
    downstairs and told Fedrick to stop. She saw Fedrick striking Tiffany with the
    bat. Fedrick then ordered Elizabeth to go upstairs. Elizabeth went to bed and
    fell asleep. The next morning, she found Tiffany in the bathtub and was unaware
    if she was dead or alive. She called her daughter Kashra who eventually called
    911. Emergency services arrived shortly thereafter.

[7]

In March 2011, nine months after this statement
    to the police, in exchange for her release on her own recognizance, Elizabeth
    told the police that she saw Fedrick leave the house on the morning of June 12
    with a bat. She said he might have taken it to a rental property that they
    owned. She described the bat as blue with a white handle. The police found a
    blue bat with a black handle in a metal shed on the property she had referred
    to. The bat was entered as an exhibit at trial.

[8]

Fedrick Gayle made two utterances introduced
    through Crown witnesses at trial: (i) he told Kashra that he tried to wake
    Tiffany but she wouldnt get up; and (ii) he told his daughter Samantha that he
    was not in the house that night.

[9]

Elizabeth and Fedrick each took the position at
    trial that the other had done the killing. Neither testified.

[10]

The forensic evidence provided information as to
    the events of June 11-12. The pathologist found that Tiffany had suffered
    multiple blunt force injuries all over her body, to her head, torso, arms, and
    legs. There was evidence consistent with two weapons having been used, a
    baseball bat and a barbeque tool. The pathologist could not say with certainty,
    however, what weapons had caused the injuries, and he could not exclude the
    possibility that there had been only one.

[11]

The blood-stain pattern analysis showed that
    Tiffany had been struck in the garage, entered the house through the garage
    door to the basement, and then continued down the hallway to the foyer outside
    the basement bathroom. There were multiple blood spatter stains in the foyer
    indicating that she had been repeatedly struck there. They showed that she had
    been moving while being hit. The beating had continued in the bathtub where she
    died.

[12]

The police found red paint transfer marks on the
    walls of the foyer and grey scuff marks on the ceiling of the basement and the
    edge of the bathtub. A broken barbecue tool with a red handle was found in the
    kitchen area. There were bloody footprints in the basement. Tiffanys blood was
    found on Fedricks jeans and on Elizabeths nightgown and on other clothing
    belonging to both.

[13]

There were obvious signs of an attempted
    clean-up throughout the foyer of the basement bathroom and bathroom. There was
    also evidence of an attempt to wash Tiffanys body. Elizabeths and Fedricks
    footprints were found in areas containing Tiffanys blood.

ISSUES

[14]

Elizabeth appeals on the basis that the trial judge
    misdirected the jury by allowing the jury to consider her
after-the-fact
    conduct to determine her level of involvement in the crime  as a
    co-perpetrator or an aider. She further argues that the trial judge erred in
    allowing the jury to consider her after-the-fact conduct when assessing the
    causation element of first degree murder.

[15]

Fedrick appeals on the basis that the jury
    should have been given limiting instructions with respect to prior
    discreditable conduct arising from Samanthas evidence. He also submits that
    the baseball bat should not have been admitted in evidence or referred to as after-the-fact
    conduct. He submits that the jury was not properly instructed with respect to
    Elizabeths statement as to where the bat might be found. Further, he submits
    that there should have been a
W. (D.)
instruction with respect to his exculpatory statements and that
    there should have been a severance of the trial.

ANALYSIS

Fedrick Gayles
    Appeal

Discreditable conduct evidence

[16]

Elizabeths counsel elicited the following evidence when cross-examining
    Fedricks daughter, Samantha Gayle:

·

Fedrick
    beat Samantha with a belt when she was a young child in Jamaica on a number of
    occasions leaving stinging welts on her arms;

·

before
    she left Jamaica with her father in 2009 she made it clear that she would not
    tolerate any beatings in Canada and that she would call 911 if threatened;

·

on
    one occasion after their arrival in Canada, her father became angry and it
    appeared that he was about to hit her. She reminded him of her threat to call
    the police and he desisted.

[17]

Fedrick argues that this was evidence of discreditable conduct and
    propensity that should not have been admitted. As the evidence was admitted,
    the trial judge erred by failing to give a limiting instruction to the effect
    that while the evidence could be used to raise a reasonable doubt by Elizabeth,
    it could not be used to prove Fedricks guilt.

[18]

In our view, the trial judge did not err in admitting this evidence. No
    objection was made to admissibility at trial. While this evidence may not have
    been admissible at the behest of the Crown, provided its prejudicial effect
    does not substantially outweigh its probative value, it was admissible at the
    behest of a co-accused at a joint trial to allow the co-accused to make full
    answer and defence.

[19]

We do not agree that the prejudicial effect of this evidence
    substantially outweighed its probative value. The evidence was remote in time
    and the conduct was materially different from the savage beating at issue at
    the trial. Fedricks counsel went a long way to neutralize the effect of
    Samanthas evidence in cross-examination. She admitted that after the family
    came to Canada, when disciplining the children, Fedrick just talked to the
    children and did not hit them.

[20]

There was also evidence that Elizabeth had used corporal punishment to
    discipline the children. In his closing address to the jury, Elizabeths
    counsel submitted that it would be wrong to conclude that because someone had
    used a belt to discipline a child, that person had a propensity to use a bat to
    kill someone. He specifically linked that situation to Fedrick as well as to
    Elizabeth. At the end of the day, Elizabeths counsel placed no weight on this
    evidence.

[21]

Nor do we accept that the trial judge erred by failing to give a
    limiting instruction.

[22]

The charge was thoroughly vetted by counsel and no limiting instruction
    of the kind sought on appeal was requested at trial. In our view, there may
    well have been strategic reasons for not seeking a limiting instruction that
    could serve only to remind the jury of the evidence or cause them to place
    undue weight upon it.

[23]

Taking all these circumstances into account, we conclude that there was
    no realistic risk that the jury would have inferred that Fedrick was capable of
    bludgeoning his daughter to death with a baseball bat because years earlier, he
    had used a belt to discipline another daughter. The trial judges failure to
    give a limiting instruction on discreditable conduct did not amount to an error
    in the circumstances of this case and we would not give effect to this ground
    of appeal.

Admissibility of the bat

[24]

Fedrick submits that the trial judge erred in admitting the baseball bat
    into evidence and instructing the jury that they could find that he had hidden
    the bat and consider that as after-the-fact conduct consistent with his guilt. Fedrick
    advances three alleged errors:

·

the
    trial judge erred in failing to assess the strength of the inferences for which
    the bat was tendered when weighing the probative value against prejudicial
    effect;

·

the
    trial judge misapprehended the evidence regarding the scuff marks at the scene
    of the crime; and

·

the
    trial judge improperly relied on Elizabeths statement about where the bat
    might be found, which was not admissible for its truth against Fedrick.

[25]

We do not accept these submissions. In her ruling admitting the bat, the
    trial judge did advert to certain weaknesses in the evidence linking the bat to
    the crime, namely the absence of DNA and the fact that any number of bats could
    have the same chemical composition and could have been used to commit the
    crime. She ruled, however, that those matters went to weight, not admissibility
    and that the bat should be admitted in evidence, leaving it to the jury to
    assess its weight. In our view, she was entitled to so rule.

[26]

While the trial judge did err in relation to the colour of the scuff
    marks, describing them as blue when in fact they were grey, that error was not
    material to her decision. The fact linking the bat to the crime was not the
    colour of the scuff marks but that their chemical composition corresponded to
    that of the bat.

[27]

Quite apart from Elizabeths statement, there was sufficient evidence
    linking the bat to the crime to warrant its admission. The forensic evidence
    regarding the nature of the injuries and the scuff marks supported an inference
    that an aluminum bat had been used to strike the victim. There was evidence
    that there was an aluminum bat at the Gayle residence before the crime, and no
    bat was found at the scene by the police when conducting their investigation.
    The bat was found at a property formerly owned by Fedrick and Elizabeth, in a
    locked shed to which Fedrick controlled access at the time when the crime took
    place. The new owner of the property testified that the bat was in this shed
    when he moved in. Fedrick had the opportunity to remove the bat from his home
    immediately after the crime and to place it in the locked shed. As Elizabeth
    did not drive, she lacked a similar opportunity.

[28]

We conclude that the trial judge did not err in admitting the bat into
    evidence and instructing the jury that if they found that Fedrick had hidden
    the bat, they could consider that as after-the-fact conduct evidence indicating
    consciousness of guilt on the part of Fedrick.

Elizabeths statement to the police about the location of
    the bat

[29]

Fedrick submits that the jury was not properly instructed that
    Elizabeths statement to the police, to the effect that she believed that the
    bat might be found in the shed at their rental property, could not be used
    against him.

[30]

In her original statement to police, Elizabeth said that Fedrick had
    stepped out of the house with the bat and that she guessed he had taken it to
    the other property based on how long he was gone. In pre-trial motions, counsel
    agreed to introduce an edited version of Elizabeth's statement by way of agreed
    statement of facts, redacting anything linking Fedrick to the bat. When
    discussing whether the bat itself could be admitted, both Crown counsel and
    Fedrick's counsel took the position that if the bat were admitted, the jury
    would have to be instructed that Elizabeths statement was not admissible
    against Fedrick.

[31]

The agreed statement was introduced at trial as narrative to explain the
    process by which the police had discovered the bat. At this time there was no
    request for a specific limiting instruction, nor was such a request made at the
    pre-charge conference or after the charge had been delivered.

[32]

The trial judge instructed the jury at several points mid-trial and
    repeatedly in her final charge that Elizabeths out-of-court statements were
    not admissible against Fedrick. Those instructions were linked to references to
    the various out-of-court statements she made but none was specifically linked
    to the agreed statement of facts regarding the bat.

[33]

Fedrick submits that as the trial judge also instructed the jury to
    consider all of the evidence, there is a risk that the jury might have
    considered the agreed statement of facts relating to Elizabeths statement as
    being admissible against him.

[34]

We do not accept this submission. First, the edited statement was
    equivocal and only stated that Elizabeth believed that the bat might be found
    in the shed and contained no reference linking Fedrick to the bat or to Fedrick
    taking the bat to the other property. Second, no request for a specific limiting
    instruction was made either before or after the charge. Third, the jury was
    repeatedly told that they could not use Elizabeths out-of-court statements as
    evidence against Fedrick. Fourth, in his closing address, Crown counsel
    specifically told the jury that what Elizabeth told the police about the
    whereabouts of the bat was only admissible against her.

[35]

Taking all of these circumstances into account, we conclude that there
    is no realistic risk that the jury could have improperly used Elizabeths
    out-of-court statement about the possible location of the bat.

Severance

[36]

Fedrick submits that the trial judge erred by failing to grant his
    application for severance on the ground that the jury would not be able to
    ignore Elizabeths out-of-court statements, inadmissible against him, but
    implicating him in the death of his daughter.

[37]

We do not agree with this submission. It is well-established that a
    trial judges decision on severance is discretionary and attracts deference on
    appeal. It is also well-established that there is a strong presumption that
    co-accused who are alleged to have acted in concert are to be tried together.
    This is particularly so where, as in this case, the co-accused advance cut-throat
    defences in which they blame each other for the crime alleged. Such cases pose
    a serious risk of inconsistent verdicts which can be avoided by a joint trial:
    see
R. v. Suzack
(2000), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras.
    87-88.

[38]

This was not a case where a serious imbalance in the evidence required
    severance. There was significant evidence linking Fedrick to the crime and the
    jury were properly instructed, both mid-trial and in the final instructions,
    that they were not to use Elizabeths statements to the police as evidence
    against Fedrick.

Lack of a full W. (D.) instruction in relation to Fedricks
    out-of-court statements

[39]

Fedrick complains the trial judge erred by failing to give the jury a
    full
W. (D.)
instruction in relation to two exculpatory statements,
    one he made to his daughter Samantha and the other to Kashra Charles. In the
    first, he told Samantha that he was not at home when Tiffany was killed and in
    the second, he exclaimed Oh my God, I tried to wake her up. She wouldnt get up.

[40]

We see no merit in this submission for the following reasons.

[41]

The trial judge did give the jury a modified
W. (D.)
instruction
    in relation to these statements. She told the jury that one or both of these
    statements could help Fedrick in his defence and that they were entitled to
    consider the statements along with the rest of the evidence to decide whether
    they had a reasonable doubt as to Fedricks guilt.

[42]

In the pre-charge conference, the trial judge specifically asked Fedricks
    trial counsel if he was satisfied with her proposed modified
W. (D.)
instruction
    for Fedrick and he stated that he was.

[43]

In our view, not only was a full
W. (D.)
instruction not
    required; the instruction that was given was unduly favourable to Fedrick. The
    reason is that his exculpatory out-of-court statements were inadmissible. These
    were not mixed statements containing inculpatory and exculpatory portions
    tendered by the Crown. They were entirely exculpatory and not admissible for
    the truth of their contents:
R. v. Rojas
, 2008 SCC 56, [2008] 3 S.C.R.
    111.

Fedricks Appeal: Conclusion

[44]

For these reasons, Fedricks appeal is dismissed.

Elizabeth Gayles Appeal

[45]

Elizabeth advances two related grounds of appeal. She argues that the
    trial judge erred in instructing the jury that they could consider her after-the-fact
    conduct to determine whether she had acted as a co-perpetrator of the assault
    on Tiffany (with Fedrick) or as mere aider to Fedricks assault on Tiffany. Put
    differently, Elizabeth maintains that the trial judge had to give the jury a
    limiting instruction to the effect that they must not use her after-the-fact
    conduct to determine whether she had acted as a co-perpetrator or as an aider.
    The second ground of appeal is that a similar instruction ought to have been
    given when discussing the causation element of constructive first degree
    murder.

[46]

At the hearing, Elizabeth abandoned the third ground of appeal. That
    ground was that the jury was not properly instructed on the use that could be
    made as inculpatory after-the-fact conduct of her exculpatory second statement
    to the police.

[47]

At trial, the Crown relied on two broad aspects of Elizabeths after-the-fact
    conduct: first, that she lied in her statements to the police and, second, that
    she participated in the extensive clean-up carried out after the homicide.

[48]

After-the-fact conduct is a form of circumstantial evidence that is
    generally admissible to show that, after the alleged offence, the defendant
    acted in a manner that, based on experience and logic, is consistent with the
    conduct of a guilty person and inconsistent with the conduct of an innocent
    one.

[49]

Its admissibility is subject to the normal rules of admissibility for
    circumstantial evidence. It must be relevant to the fact in issue and its
    prejudicial effect must not outweigh its probative value.

[50]

Once after-the-fact conduct evidence is admitted, however, the court
    must be careful to ensure that it is not misused by the trier of fact. As noted
    in
R. v. Angelis
, 2013 ONCA 70, 300 O.A.C. 367, at para. 52, after-the-fact
    conduct may well be probative of an accuseds culpability but is usually not
    probative of the level of that culpability.

[51]

In the present case, Elizabeth concedes that her after-the-fact conduct
    could be understood by the jury to be evidence of consciousness of guilt. It
    was therefore admissible to assist the jury in determining whether she was
    involved in the homicide. According to the Crowns theory, Elizabeths
    involvement was either as a co-perpetrator in the assault leading to Tiffanys
    death or as an aider because she did not call 911 or otherwise intervene in
    Fedricks assault on Tiffany. What the jury could not do, according to
    Elizabeth, was to go on to use after-the-fact conduct to decide into which of
    the two modes of participation in the homicide Elizabeths conduct fell under.

[52]

In Elizabeths submission, her after-the-fact conduct was probative only
    of the issue whether she had any involvement in the homicide. It was not
    probative of her level of involvement in the homicide. In the present case,
    however, the instructions given by the trial judge and the decision tree used
    by the jury directed the jury to consider after-the-fact conduct in deciding
    more than involvement in the homicide. It invited the jury to consider after-the-fact
    conduct to decide which of the two culpable acts Elizabeth committed. This,
    Elizabeth argues, ran afoul of this courts decision in
Angelis
as it
    allowed the after-the-fact conduct to be used in deciding level of culpability
    despite it being of no probative value with respect to that issue.

[53]

If Elizabeth had acted as a co-perpetrator of the assault that caused
    Tiffanys death, the jury was told, and the decision tree indicated, that this
    could lead to a conviction for first degree murder. If she had only aided in
    the commission of the offence by failing in her duty to call 911, this could
    only lead to a conviction for second degree murder or manslaughter.

[54]

The concern raised by Elizabeth arises because of the trial judges
    decision to divide the first question to be asked in a charge of homicide into
    two parts. The decision tree provided to the jury, a copy of which is appended
    to these reasons, shows question 1 as: Did Mrs. Gayle cause the death of
    Tiffany Gayle by an unlawful act? It then directed the jury that, if they were
    to answer no to this question, they were to go on to consider question 1(b),
    which reads as follows: Did Mrs. Gayle aid Mr. Gayle in causing Tiffany
    Gayles death by means of an unlawful act?

[55]

The decision tree indicated that a positive answer to question 1 would
    lead to the jury answering question 2. A negative answer to question 1 would
    lead to the jury answering question 1(b). If question 1(b) were answered in the
    positive, the jury was then to answer question 2(b). Question 2 and question
    2(b) are the same, that is: Did Mrs. Gayle have the state of mind required for
    murder?

[56]

Although questions 2 and 2(b) are the same, the decision tree shows that
    they potentially lead to different final verdicts. Following the branch headed
    by question 2 leads to a further series of questions to determine whether
    Elizabeth is to be found guilty of first degree murder. If the branch headed by
    question 2(b) is taken, it can lead, at most, to a conviction for second degree
    murder.

[57]

As explained by Elizabeth, it follows from this division between
    questions 1 and 1(b) that the jurys decision as to whether she was a
    co-perpetrator or simply an aider determines the ultimate jeopardy she faces.
    If the jury determined that she was a co-perpetrator, she could be convicted
    for first degree murder. If, however, the jury determined that she was simply
    an aider she was exposed, at most, to a verdict of guilty of second degree
    murder.

[58]

The jury was told that Elizabeths after-the-fact conduct could be
    considered when determining the first element of the offence. Elizabeth submits
    that, given the division between questions 1 and 1(b), the jury was effectively
    invited to use the after-the-fact conduct in determining her mode of
    participation in the offence. This, she maintains, was an error because after-the-fact
    conduct is probative of culpability but not probative of the level of that
    culpability. The after-the-fact conduct could only assist the trier of fact in
    deciding whether Elizabeth committed an unlawful act of culpable homicide. It
    could not bear the additional inference that she was involved in the offence as
    a co-perpetrator rather than as an aider.

[59]

Elizabeth argues that her after-the-fact conduct was equally consistent
    with her being involved in the homicide as an aider or co-perpetrator, but the
    way the questions were set up by the trial judge would have led the jury to
    misuse the after-the-fact conduct evidence to decide between these
    alternatives. She submits that there is a real risk that the jury, having
    misused after-the-fact conduct evidence to conclude that she was a
    co-perpetrator, would then have relied on this finding in their assessment of
    whether she had the intent and level of involvement in the homicide required
    for first degree murder.

[60]

We would not give effect to this submission.

[61]

We note at the outset that there was no concern raised at trial with the
    jury instructions or with the decision tree despite the fact that counsel were
    provided with copies in advance and had ample opportunity to raise any
    objection. It is also common ground that the jury could consider after-the-fact
    conduct in deciding the first essential element of culpable homicide, that is,
    whether Elizabeth was a party to the unlawful act that caused Tiffanys death.

[62]

There is also no dispute that, with respect to Elizabeth, the first
    element of an offence of culpable homicide, being a party to an unlawful act
    causing death, can be made out by finding either that she was a co-perpetrator
    in the killing or that she was an aider to Fedrick, who was the perpetrator.
    Whether a juror considered Elizabeth to be a co-perpetrator or an aider did not
    matter in deciding whether the first element of the offence was met. As long as
    all of the jurors were satisfied beyond a reasonable doubt that she was either
    a party as a person who caused Tiffanys death by beating her or was a party to
    the unlawful act as an aider to Fedrick, they were to move to the next
    question, whether she had the state of mind required for murder. It did not
    matter if some jurors believed she was a co-perpetrator and others believed
    that she was an aider. Both could lead to murder. See
R. v. Thatcher
,
    [1987] 1 S.C.R. 652.

[63]

When the jury turned to question 2 or 2(b), Did Mrs. Gayle have the
    state of mind required for murder? it was made clear to them that in answering
    this question they could not consider the after-the-fact conduct. The after-the-fact
    conduct evidence could be used only in considering the first element of the
    offence, whether Elizabeth had caused Tiffanys death unlawfully, and not for
    any of the subsequent elements. Again, there is no dispute that this
    instruction was correct.

[64]

In our view, there is no realistic possibility that Elizabeth was
    prejudiced by the fact that the jury could use the after-the-fact conduct in
    choosing between the two modes of participation in the offence. The jury
    clearly could use it to decide the first element of the offence, that is,
    causing Tiffanys death either as a perpetrator or as an aider. Beyond using after-the-fact
    conduct in answering question 1 and question 1(b), the jury was instructed that
    evidence of after-the-fact conduct was to have no role in their deliberations.
    That is, the after-the-fact conduct was to play no role in the jurys
    consideration of the subsequent questions that had to be answered in the affirmative
    if Elizabeth was found guilty of first degree murder. Those questions could
    not, as we will explain, be answered in the affirmative unless the jury was
    satisfied, without reference to the after-the-fact conduct, that Elizabeth
    actively participated in the killing.

[65]

The trial judge gave clear instructions that, to be guilty of
    constructive first degree murder, Elizabeth had to have done something that was
    an essential, substantial and integral part of the killing of Tiffany. This
    is set out as question 3. Even assuming that the jury should not have, but did
    use after-the-fact conduct to decide Elizabeths mode of participation in the
    homicide, to reach their verdict of first degree murder the jury had to have
    found that her actions were an essential, substantial and integral part of the
    killing. This determination was made by the jury without reference to
    Elizabeths after-the-fact conduct. Juries are presumed to follow the trial
    judges instructions. As a result, even if consideration of after-the-fact
    conduct played a role in the jurys answer to question 1, the jury was required
    to reconsider Elizabeths role when they reached question 3 and the trial
    judges directions were clear that, in answering that question, they could not
    consider after-the-fact conduct. Having answered question 3 in the affirmative,
    it is apparent, therefore, that the jury excluded the possibility that
    Elizabeths role was simply her failure to call 911. They had to revisit any
    prior determination they may have made in answer to question 1 and, without
    reference to any after-the-fact conduct, assess with more precision the role
    that Elizabeth played in the homicide.

[66]

Having answered question 3 in the affirmative, there was a further
    safeguard. The jury had to go on and answer question 4. Was Elizabeths murder
    of Tiffany committed while committing the offence of unlawful confinement?
    The trial judge clearly directed that in answering this question, the jury
    could not use after-the-fact conduct. There can be no doubt that if the jury
    concluded, as they must have, that Elizabeth unlawfully confined Tiffany in the
    course of the murder, they determined quite independently from their answer to
    question 1 that Elizabeth was a co-perpetrator, not simply an aider to
    Fedricks assault.

[67]

As for the submission that an additional instruction was required
    regarding the use of after-the-fact conduct when considering the causation
    element of constructive first degree murder, we view the instructions given as
    sufficient. The jury was well aware that after-the-fact conduct was not to be
    considered at this point in their deliberations and no additional instruction
    was required.

[68]

As a result, we do not give effect to these grounds of appeal.

DISPOSITION

[69]

For the reasons given, both appeals are dismissed.

Robert J. Sharpe
    J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.

Released: April 12, 2017