WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

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

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

(iii)     REPEALED: S.C.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

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

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

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

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

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    that could identify the victim shall not be published in any document or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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. J.L., 2022 ONCA 271

DATE: 20220404

DOCKET: C68791

Pardu, Paciocco
    and Thorburn JJ.A
.

BETWEEN

Her Majesty the Queen

Respondent

and

J.L.

Appellant

Mindy Caterina, for the appellant

Kristen Pollock, for the respondent

Heard: March 23, 2022 by video conference

On appeal from the conviction entered on
    December 13, 2019 and the sentence imposed on September 18, 2020 by Justice Marquis
    S. V. Felix of the Ontario Court of Justice.

REASONS
    FOR DECISION

OVERVIEW

[1]

J.L. was convicted of sexually assaulting the
    complainant, his estranged wife. He was also convicted of breach of probation
    arising from the same event, which is alleged to have occurred on September 17,
    2018. Both parties testified during the trial. Credibility was the only
    contested issue. The trial judge was not left with a reasonable doubt following
    J.L.s testimony primarily because J.L. had initially lied to the police by
    denying his presence at his wifes place of residence at the time of the
    alleged offences. The trial judge accepted the testimony of the complainant that
    J.L. had intercourse with her against her will, and thereby breached a
    condition requiring him to keep the peace and be of good behavior in a
    probation order he was under for prior offences he had committed against the
    complainant.

[2]

J.L. appeals his conviction, identifying alleged
    errors in the trial judges analysis of the complainants credibility. He
    argues that the trial judge relied unduly on the complainants demeanour and that
    he incorrectly used the absence of exaggeration as a makeweight bolstering her
    credibility. He also argues that the trial judge misapprehended the importance
    of material evidence. J.L. also seeks leave to appeal his global sentence of three
    years and three months.

[3]

Although J.L. raises concerns about the trial
    judges credibility evaluation that are not entirely without merit, when
    examined in the context of the reasons for judgment as a whole, those concerns
    do not overcome the significant deference that must be given to the trial
    judges credibility determinations, recently reinforced by Karakatsanis J. in
R.
    v. G.F.
, 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81‑82. As
    explained below, we therefore deny the conviction appeal.

[4]

J.L. also seeks leave to appeal his global
    sentence of three years and three months. For the reasons below, we grant leave
    to appeal the sentence, allow the sentence appeal and substitute a global
    sentence of three years.

DEMEANOUR

[5]

J.L.s main ground of appeal asserts that the
    trial judge gave undue weight to the complainants demeanour in his assessment
    of her credibility. In his reasons for judgment, the trial judge did comment extensively
    on the complainants demeanour, including her state of emotion and the manner
    in which she testified, and he stressed repeatedly how closely he had examined
    the complainant during her testimony.

[6]

It is appropriate for trial judges to consider
    the demeanour of witnesses when evaluating their credibility:
R. v. R.D.
,
    2016 ONCA 574, 352 O.A.C. 350, at para 25;
R. v. E.A.P.
,

2022
    ONCA 134, at para. 21. However, this court has cautioned that demeanour can be
    an unreliable gauge of credibility because of the impact that culture,
    personality and pressure can have on courtroom behaviour, and the risk that stereotypes
    about credibility will distort the evaluation:
R. v. Rhayel
, 2015 ONCA
    377, 334 O.A.C. 181, at para. 85;
R. v. Santhosh
, 2016 ONCA 731, 342
    C.C.C. (3d) 41;
R. v. Hemsworth
, 2016 ONCA 85, 334 C.C.C. (3d) 534;
R.
    v. A.A.
, 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 131-32;
R. v. T.M.
,
    2014 ONCA 854, 318 C.C.C. (3d) 421. Therefore, it is an error to give undue weight
    to demeanour in making credibility determinations. Although the trial judge
    arguably gave more attention to demeanour in his reasons for judgment than is
    optimal, we are left unpersuaded that the trial judge erred by giving undue
    weight to demeanour.

[7]

First, the trial judge was aware that he should
    not rely unduly on demeanour when coming to his decision. The parties cautioned
    him in this regard, and he expressly adopted the principles of credibility
    evaluation described in
R. v. G.A.
, 2017 ONSC 7493, which include, at para.
    142, a caution against overreliance on demeanour. He also demonstrated an
    understanding that cases should not be decided based primarily on demeanour. He
    did so by rejecting J.L.s testimony despite being impressed by J.L.s
    demeanour, and by stressing in his reasons that his decision to accept the
    complainants testimony was based on a number of factors.

[8]

Second, the lengthy demeanour section in the reasons
    for judgment was dedicated primarily to explaining why the complainants
    demeanour in pausing before answering and not responding directly to questions
    did
not
undermine her credibility. Although the trial judge made this
    decision based on other aspects of the complainants demeanour, including her
    state of emotion and her straightforward blunt personality, the net result is
    that on this occasion the trial judge used aspects of the complainants demeanour
    not as a positive indication of her credibility, but as a basis for declining
    to rely on other aspects of her demeanour in his credibility evaluation. In our
    view, a decision not to rely on demeanour, even if based on other aspects of
    demeanour, cannot contribute to a finding that demeanour has been used unduly.

[9]

Third, it was not inappropriate for the trial
    judge to rely on demeanour to discount the weight of the complainants refusal
    to acknowledge in her testimony her interest in reconciling with the appellant
    in the year prior to the assault. To be clear, there may have been room for
    criticism if the trial judge relied on the complainants demeanour to find that
    she was being truthful when denying her interest in reconciliation, but this is
    not what occurred. The trial judge was fully aware that the complainant had not
    been entirely forthcoming in this area. Instead, he relied on her animated
    response in putting a text message document she had been confronted with face
    down on the witness box in order to understand why she was not forthcoming. The
    trial judge concluded that this discrete act demonstrated the complainants
    discomfort in acknowledging, as borne out by the text messages, that there was
    a time when she wished to reconcile with the appellant. In the trial judges
    view, this explanation for her reluctance to admit her interest in
    reconciliation blunted the impact of this incident on the credibility of her
    sexual assault allegation. Although not every judge may have drawn this
    inference, it was open to the trial judge to do so.

[10]

There is no question that the trial judges evaluation
    of the demeanour of the complainant also influenced his overall credibility assessment.
    But as the trial judge made clear, he relied as well on other factors,
    including testimony from the appellant that confirmed much of the complainants
    narrative, and the complainants emotional condition after the alleged assault.
    On this record, it cannot be said that the trial judge relied unduly on
    demeanour.

THE ABSENCE OF EXAGGERATION

[11]

The complainant told the police that the
    appellant reinserted his penis in her vagina after ejaculating on her stomach.
    She did not include this detail in her testimony until she was confronted in
    cross-examination with her police statement. The trial judge explained why, in
    his view, this was not a significant contradiction. He then noted that the
    reinsertion of the penis is an aggravating factor and commented, If the
    complainant was singularly focused on animus, she would have [] taken great
    care to explain each aggravating circumstance, including a re‑introduction
    of the [appellants] penis.

[12]

The appellant contends that the trial judge
    erred in drawing this inference since it is an error for a trial judge to treat
    the absence of embellishment as a makeweight in favour of credibility:
R.
    v. Alisaleh
, 2020 ONCA 597, at para. 16. We do not agree that the trial
    judge erred in drawing the inference that he did. We agree that it is improper
    for a trial judge to infer that a more modest sexual assault allegation is more
    likely to be true because a false allegation is likely to be serious. But this
    is not the reasoning the trial judge engaged in. Instead, he reasoned that if
    the complainant had really concocted the sexual assault allegation out of
    animus as the appellant alleged, she would not have failed to mention this
    aggravating feature of her allegation when offering her testimony in chief. This
    inference was not being used as a makeweight  an affirmative indication of
    truthfulness  but rather was directed at rebutting or knocking off of the
    scales a defence challenge to the complainants credibility.

THE MISAPPREHENSION OF EVIDENCE

[13]

The appellant argues that the trial judge
    misapprehended evidence relevant to credibility by failing to give it proper
    effect.

[14]

First, he contends that the trial judge
    misapprehended the relevance of evidence about text messages from the prior
    year in which the complainant demonstrated a desire to reconcile with the
    appellant. The evidence about the text messages was relevant to the
    complainants credibility in two ways: (1) the text messages provided evidence
    that arguably supported the jealousy and animus motive the appellant alleged,
    and (2) the text messages arguably showed that the complainant was lying when she
    claimed that she was not, at the time, interested in reconciling with the
    appellant. The appellant argues that the trial judge misapprehended the
    relevance of the text message evidence by addressing only the first issue and
    not the second. We do not agree. The trial judge appreciated and addressed the
    second issue. As indicated above, he attributed the complainants refusal to
    acknowledge her interest in reconciliation to the complainants reluctance to
    admit her desire to reconcile. Regardless of what may be said about how
    persuasive that inference is, it demonstrates that the trial judge did not
    misapprehend the relevance of the text message evidence.

[15]

Second, the complainant argues that the trial
    judge failed to appreciate the relevance of the testimony of the appellants probation
    officer that the complainant told her that the sexual assault had occurred sometime
    over the past week or over the weekend. In contrast, the complainant testified
    that the sexual assault occurred 30-40 minutes before she phoned the
    appellants probation officer. When the trial judge analyzed this contradiction,
    he said that it is addressed by the fact that the appellant confirmed that he
    attended the complainants residence prior to the phone call.

[16]

The appellant argues that this analysis missed
    the real point. The significance of the contradiction was not that it created
    doubt about when the alleged event occurred. Its significance was that if the
    complainant did tell the probation officer that the sexual assault had occurred
    sometime over the past week or on the weekend, this casts serious doubt on the
    credibility of her entire sexual assault allegation. Specifically, if a sexual
    assault had in fact occurred 30-40 minutes before the phone call as testified
    by the complainant, it is inconceivable that the complainant would have told
    the probation officer almost immediately after the sexual assault that the
    sexual assault had happened days before. Moreover, the trial judge relied on
    the upset state of the complainant as after-the-fact conduct consistent with
    the complainant having just been sexually assaulted. If the complainant had
    told the probation officer that the sexual assault had in fact occurred days before,
    her state of upset would not have been reliable evidence of the sexual assault.

[17]

We accept that the organization of the trial
    judges reasons does create the appearance that he misapprehended the
    significance of this contradiction. As indicated, when he raised and addressed this
    issue directly, he appears to have treated the contradiction as if it was
    relevant only to the timing of the assault. However, a trial judges reasons
    must be read as a whole. When the whole of his reasons is considered, it is
    apparent that the trial judge had significant reservations about accepting that
    the probation officer accurately recorded the conversation. He noted earlier in
    his reasons that when the complainant spoke to the probation officer, she was upset
    and had to be calmed down before she could be understood; that the interaction
    between the probation officer and the complainant was not recorded; that the
    probation officers report was not filed as an exhibit; that she was not engaging
    in an investigative interview; and that while she did her best to make notes,
    she is not an investigator. Moreover, the trial judge noted that the
    complainant testified that she in fact told the appellants probation officer
    that the sexual assault had occurred only moments before. Although the trial
    judge could have been more explicit, it seems clear that he was not persuaded
    that the complainant had told the probation officer that the sexual assault
    occurred the week before or on the weekend. Although the appellant takes issue
    with that finding given that the probation officer had notes, this finding was
    open to the trial judge. The instant point is that an examination of the whole
    of the record precludes a finding that the trial judge misapprehended the significance
    of this evidence.

CONCLUSION ON CONVICTION APPEAL

[18]

We recognize that the appellant made incidental
    arguments before us taking issue with the trial judges treatment of other
    contradictions and arguing that inadequate attention was given to the appellants
    animus theory. It is not for us to retry the case. We will therefore say no
    more on those issues and would dismiss the conviction appeal.

THE SENTENCE APPEAL

[19]

The Crown concedes that the trial judge erred in
    principle by imposing a sentence of three years and three months on the sexual
    assault conviction after the trial Crown requested a global sentence of three
    years. In order to exceed the sentence recommended by the trial Crown, the
    trial judge was obliged to first alert the parties of his intention to do so
    and then give them an opportunity to make submissions:
R. v. Blake-Samuels
,
    2021 ONCA 77, at paras. 30-34, 36. But he did not do so.

[20]

We are persuaded that this error affected the
    sentence. We have had the benefit of relevant submissions on whether the
    sentence requested by the trial Crown should be exceeded. The appeal Crown
    conceded before us that the three‑year sentence the trial Crown had requested
    is fit and could offer no basis upon which the additional three months of
    incarceration would be required. We are therefore satisfied that, had the trial
    judge conducted the inquiry he should have conducted, it is probable that he
    would have acceded to the sentence the trial Crown requested.

[21]

In the face of this error, it falls to us to
    impose a fit sentence. We reject the sentencing range suggested by the
    appellant. The aggravated factors in this case make a sentence at the low end
    of the range inappropriate. We set aside the sentence on the sexual assault conviction
    and substitute the sentence the trial Crown requested of three years of incarceration.

CONCLUSION ON THE SENTENCE APPEAL

[22]

Leave to appeal is granted, the sentence imposed
    for the sexual assault conviction is set aside, and a sentence of three years
    is substituted.

G. Pardu J.A.

David M. Paciocco J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Tabriz Persian Cuisine Inc. v. Highrise Property Group Inc.,
    2022 ONCA 272

DATE: 20220404

DOCKET: C69604

Feldman, MacPherson and Lauwers
    JJ.A.

BETWEEN

Tabriz Persian Cuisine Inc.

Plaintiff (Appellant)

and

Highrise Property Group Inc.

Defendant (Respondent)

Esmaeil Mehrabi, for the appellant

Angela Assuras, for the respondent

Heard: February 25, 2022 by video conference

On appeal from the judgment of Justice Jasmine
    T. Akbarali of the Superior Court of Justice, dated June 16, 2021, with reasons
    at 2021 ONSC 4065.

MacPherson J.A.:

A.

Introduction

[1]

This appeal centers on the reasonableness of a
    landlords refusal to consent to a tenants lease assignment. On three
    occasions, the appellant tried to assign its lease. On three occasions, the
    respondent refused. It offered differing reasons for doing so, but each refusal
    insisted that the respondent would not consider the assignment unless the
    appellant removed a patio it had built on the condominiums property.

[2]

The appellant brought an action for damages
    after the third refusal. After a trial, Akbarali J. found that the appellant
    had not shown that the respondent acted unreasonably. For these reasons, I find
    that she did not err in doing so. The appellant attempts to extricate questions
    of law from a finding of fact. The fundamental question is whether a reasonable
    person could have withheld consent. The appellants refusal to rectify its
    breach of the lease meets the reasonable person standard and is not overwhelmed
    by the respondents request that the appellant abandon a parallel lawsuit.

B.

FACTS

(1)

The Parties and Events

[3]

The appellant, Tabriz Persian Cuisine Inc.,
    owned a Persian restaurant in premises leased from the respondent Highrise
    Property Group Inc. In 2018, the appellant decided to sell its business. Doing
    so required the respondent to consent to the assignment of its lease with the appellant.
    Section 10.01 of the lease prohibited the respondent from unreasonably
    withholding or delaying its consent. The section went on to specify that it would
    not be unreasonable for the respondent to consider the proposed transfers
    conformity with the lease, the assignees business fundamentals, and the
    availability of other premises.

[4]

Three times, the appellant found a buyer and
    sought the respondents consent. Three times, the respondent refused to
    consider the assignment unless the appellant met a series of conditions. Though
    the conditions changed through the offers, the respondent consistently asked
    that the appellant remove a patio it had built as an addition to its
    restaurant.

[5]

The patio was a source of significant friction
    between the parties. Prior tenants had used the area in front of the premises
    for outdoor dining. The appellant added a wooden structure to correct what it
    saw as a grading problem. The respondent subsequently asked the appellant to
    remove the patio as it did not comply with the lease. The appellant resisted on
    the basis that it had obtained the consent of the respondents agent before
    installing the patio. The patio and the alleged representation are at the heart
    of a separate action brought by the appellant.

[6]

In its third refusal to consent to the
    assignment, the respondent requested that the appellant remove the patio and
    that it discontinue the parallel litigation.

(2)

The Trial Judges Decision

[7]

The trial judge concluded that the appellant had
    failed to show that the respondents refusal to consent to the lease was
    unreasonable. Despite the respondents various other grounds for refusing to
    consent to the assignment, the trial judge found that the patio was its primary
    reason for refusal.

[8]

The trial judge noted that the appellant had
    built the patio outside the leased premises without the respondents consent.
    The appellant understood that the patio did not conform with the lease, as
    shown through its various unfulfilled promises to remove the deck/patio. The
    trial judge reasoned [i]t is not reasonable to expect the [respondent] to
    consent to an assignment of lease in circumstances that are going to perpetuate
    the patio problem that has plagued the parties for years. The respondent was
    merely insisting that the appellant restore the leased premises before it left.

[9]

However, the respondents insistence that the
    appellant discontinue its parallel lawsuit was not reasonable. The trial judge
    found that this condition was the respondents attempt to use its greater
    bargaining power to secure a dismissal of the action in which the plaintiff may
    be asserting legitimate rights [and] is not connected to the request to assign
    the lease. Nevertheless, this collateral purpose did not render the
    respondents refusal unreasonable, viewed holistically: Put another way, a
    reasonable basis to refuse consent saves a co-existing tainted purpose.

[10]

Finally, the trial judge found in
obiter
that the appellant had not sufficiently proved its damages.

C.

ISSUES

[11]

The appellant raises three issues on the appeal:

1.

Did the trial judge err by finding that the
    respondent did not impose a pre-condition to considering the appellants
    assignment request?

2.

Did the trial judge err by finding that the
    respondents refusal to consent to the assignment was reasonable?

3.

Did the trial judge err by finding that the
    reasonable purpose saved the       collateral purpose?

D.

ANALYSIS

Preliminary issue - Standard of Review

[12]

I disagree with the appellants argument that
    the lease is a standard form contract that should be reviewed for correctness.
    Whether a landlords refusal to consent to a lease assignment is reasonable is
    essentially a question of fact that must be determined on the circumstances of
    the particular case, including the commercial realities of the market place and
    the economic impact of the assignment on the landlord:
1455202 Ontario
    Inc. v. Welbow Holdings Ltd.
(2003), 33 B.L.R. (3d) 163 (Ont. S.C.), at
    para. 9(6). The trial judges decision is, accordingly, entitled to deference
    absent palpable and overriding error:
Housen v. Nikolaisen
, 2002 SCC
    33.

(1)

The Pre-Condition Issue

[13]

The appellant contends that the respondent acted
    unreasonably by refusing to even consider the lease assignment before its
    conditions were met. In its email concerning the third offer, the respondents
    agent wrote you have to remove your patio complete to the ground and make good
    all damages to the wall and floor
before
he considers your
    Assignment of Lease(emphasis in original). The appellant relies on para. 50 of
Royal Bank of Canada v. Oxford Medical Inc.,
2019 ONSC 1020, for the
    principle that a landlord has an obligation to consider requests for a
    proposed assignment.

[14]

This reliance is misplaced. McEwen J.s
    assertion in
Royal Bank
cites
St. Jane Plaza Ltd. v. Sunoco
    Inc.
(1992), 24 R.P.R. (2d) 161 (Ont. C.J. (Gen. Div.)). There, the
    plaintiff attempted to terminate the lease on the basis that Sunoco had
    assigned its lease without consent. In fact, Sunoco had requested the
    plaintiffs consent on three occasions and the plaintiff had simply ignored
    them: at p. 5. For the next 14 years, the plaintiff accepted Sunocos rent
    cheques until it sought to terminate the lease in search of higher rent: at p.
    7.

[15]

Borins J. concluded that the plaintiff had
    unreasonably withheld its consent because it failed to offer any grounds for
    its refusal: at p. 10. Therefore, a landlords refusal to consider an offer is
    not unreasonable in itself. Rather, it is unreasonable because the court is
    unable to appreciate the reasons motivating the refusal:
Welbow
, at
    para. 9(2). A landlords silence is tantamount to an unreasonable refusal. As Morden
    J.A. said at para. 36 of
1497777 Ontario Inc. v. Leons Furniture Ltd.
(2003), 176 O.A.C. 380 (C.A.), the essential reasoning underlying Borins J.s
    conclusion in
St. Jane
is founded on the fact that the tenant had
    sought the landlords consent to the assignment of the lease and that the
    landlord had unreasonably refused to give it.

[16]

Consequently, I do not agree that the landlord
    was unreasonable in placing preconditions before considering the assignment.
    The correspondence between the parties highlights the basis of the landlords
    refusal in palpable detail and allowed the trial judge to find that the patio
    was the only default that really mattered. The question is, and remains,
    whether the landlords refusal was reasonable. It makes no difference at which
    stage of its consideration the landlord makes its decision.

(2)

The Refusal Issue

[17]

The appellant submits that the respondents
    reasons for withholding consent were unreasonable because they were not
    contemplated by the lease. The lease required the appellant to obtain the
    respondents consent before assignment which consent may not be unreasonably
    withheld or delayed. The lease further provided that it will not be
    unreasonable for the respondent to consider:

a.      Whether the
    transfer is contrary to any covenants or restrictions granted by the landlord
    to other existing or prospective tenants or occupants of the building;

b.      Whether in
    the landlords opinion the financial background, business history and
    capability of the transferee are satisfactory; and

c.      Whether the
    landlord will have in the next ensuing three-month period other premises
    elsewhere in the building which might be suitable for the needs of the
    transferee.

[18]

The appellant claims that the trial judge erred
    by considering reasons extraneous to the three outlined above. Indeed, it
    argues that its default under the lease was irrelevant since there was no term
    stating that the respondent could refuse consent because the appellant was in
    breach of the lease. It did not raise this argument at trial: see trial judges
    reasons, at para. 61.

[19]

I disagree with the appellants submission for
    two reasons. First, the exclusivity of the above grounds is not supported by
    the language of the lease. The landlords obligation to withhold consent on
    reasonable grounds is unqualified: which consent may not be unreasonably
    withheld or delayed. The three provisions are included in a distinct sentence
    that states it will not be considered unreasonable for the Landlord to take
    into account the following factors. In my view, this language is expansive,
    not exclusive. It clarifies conditions that may be unreasonable without
    limiting the generality of the first clause: see
Lehndorff Canadian Pension
    Properties Ltd. v. Davis Management Ltd.
(1989), 59 D.L.R. (4th) 1 (B.C.
    C.A.), at p. 10.

[20]

Second, the appellants argument goes against
    the tenor of the governing case law. In
Welbow
, Cullity J. described
    the relevant principles, at para. 9:

1. The burden is on the tenant to satisfy the
    court that the refusal to consent was unreasonable. In deciding whether the
    burden has been discharged, the question is not whether the court would have
    reached the same conclusion as the landlord or even whether a reasonable person
    might have given consent; it is whether a reasonable person could have withheld
    consent.

2. In determining the reasonableness of a
    refusal to consent, it is the information available to - and the reasons given
    by - the landlord at the time of the refusal - and not any additional, or
    different, facts or reasons provided subsequently to the court - that is
    material. Further, it is not necessary for the landlord to prove that the
    conclusions which led it to refuse consent were justified, if they were
    conclusions that might have been reached by a reasonable person in the
    circumstances.

3. The question must be considered in the
    light of the existing provisions of the lease that define and delimit the
    subject matter of the assignment as well as the right of the tenant to assign
    and that of the landlord to withhold consent. The landlord is not entitled to
    require amendments to the terms of lease that will provide it with more
    advantageous terms, but, as a general rule, it may reasonably withhold consent
    if the assignment will diminish the value of its rights under it, or of its
    reversion. A refusal will, however, be unreasonable if it was designed to
    achieve a collateral purpose, or benefit to the landlord, that was wholly
    unconnected with the bargain between the landlord and the tenant reflected in
    the terms of the lease.

6. The question of reasonableness is
    essentially one of fact that must be determined on the circumstances of the
    particular case, including the commercial realities of the marketplace and the
    economic impact of an assignment on the Landlord. Decisions in other cases that
    consent was reasonably, or unreasonably, withheld are not precedents that will
    dictate the result in the case before the court. [Citations omitted.]

This court confirmed this as the
    applicable test in
Tradedge Inc. (Shoeless Joes) v. Tri-Novo Group Inc.
,
    2007 ONCA 562, at para. 2.

[21]

Cullity J.s decision relies on the Ontario High
    Courts decision in
Federal Business Development
    Bank v. Starr
(1986), 28 D.L.R. (4th) 582, where
    Donnelly J. said, at p. 590, that the assignment test is moving towards a
    more liberal approach, close to the reasonable man standard, [which] is to
    consider the surrounding circumstances, the commercial realities of the market
    place and the economic impact of an assignment on the landlord. This court
    endorsed Donnelly J.s approach: see (1988), 52 D.L.R. (4th) 767.

[22]

The appellant attempts to distinguish this case
    from
Starr
on the
    basis that the tenant in
Starr
was required to be in compliance with the terms of the lease as a
    precondition to assignment. However, Donnelly J. considered the covenant to
    repair as one factor, not as the foundation of his analysis. He concluded, at
    p. 591, the landlord suffers substantial economic loss if the property is not
    repaired. This detriment is legitimately recognized as a reasonable objection
    to the assignment.

[23]

In my view, the analysis in
Starr
is apposite. The appellants
    refusal to remove the patio has imposed economic loss on the respondent. The
    appellant acknowledged that the patio was contrary to the lease through its
    many unfulfilled promises to remove it. However, the appellants assurances
    that the third purchaser could use the patio shows that it never intended to
    rectify its breach. As the trial judge found, the respondents refusal was
    motivated by a desire to avoid perpetuat[ing] the patio problem.

[24]

I agree. The respondents insistence that the
    appellant rectify its breach falls squarely within the wider field of reasonableness
    identified in
Welbow
and
Starr
. The
    respondents desire to compel the appellant to restore the integrity of the
    leased premises is entirely consistent with the parties bargain as expressed
    by the lease. In any event, reasonableness is a question of fact, dependent on
    the surrounding circumstances, the commercial realities of the marketplace, and
    the economic impact of the assignment on the respondent. I see no basis to
    disturb the trial judges analysis and conclusion on this issue.

(3)

The Reasonable Purpose Versus the Collateral Purpose
    Issue

[25]

The trial judge found that the respondents
    second basis for refusing to consent to the assignment was not reasonable. She
    held that, in requiring that the appellant discontinue its other lawsuit, the respondent
    was trying to use its greater bargaining power to secure a dismissal of the
    action in which the plaintiff may be asserting legitimate rights.
    Consequently, this condition was an unreasonable collateral purpose because it
    was not connected to the request to assign the lease. Nevertheless, the trial
    judge found that the respondents first basis to refuse assignment was
    sufficient to meet the reasonableness test: Put another way, a reasonable
    basis to refuse consent saves a co-existing tainted purpose.

[26]

The appellant argues that the trial judge erred
    in her analysis because the collateral purpose was grounded in and synonymous
    with the reasonable condition. It relies on
No. 1 West India Quay (Residential)
    Ltd. v. East Tower Apartments Ltd.
, [2018] EWCA Civ 250, to submit that
    the collateral purpose infects the reasonable condition because the overarching
    reason for refusal was a collateral benefit: the discontinuation of the
    parallel lawsuit. The respondent disagrees with this submission on the basis
    that the collateral purpose and the reasonable condition are independent of
    each other.

[27]

I do not agree entirely with either partys
    submission.

[28]

I agree with the appellant that there is a
    linkage between the respondents reasonable condition (remove the patio) and
    the improper collateral purpose (discontinue the parallel lawsuit). However, I
    do not think that the collateral purpose infects the reasonable condition.
    The respondents principal focus throughout its dispute with the appellant was
    the removal of the improper patio. It said this every time the appellant found
    a proposed buyer and sought the respondents consent to assign its lease. The
    respondent had every right to seek the removal of the patio as a condition of
    agreeing to the assignment of the lease to a potential buyer. As the trial
    judge said:

In this case, there is sufficient basis on
    which a reasonable person could have withheld consent  the failure to remove
    the patio. Moreover, this is not a case where the defendant refused consent based
    only on an improper consideration. The failure to remove the patio was, in
    fact, one of the reasons the defendant withheld consent.

[29]

However, in a passage relied on by the
    respondent, the trial judge went on to say, seemingly in a conclusory way: Put
    another way, a reasonable basis to refuse consent saves a co-existing tainted
    purpose.

[30]

In my view, this is too broad a proposition. I
    think that when two or more refusal factors are in play, it is necessary to
    consider the origins and weights of the competing factors. In effect, the trial
    judge did this in her reasons, comprehensively and well. Accordingly, I would
    uphold her decision. Viewed in its entirety, a reasonable person could have
    withheld consent on the basis that the appellant had not properly restored the
    property to the condition required by the lease, as it had promised to do.

E.

disposition

[31]

I would dismiss the appeal. The respondent is
    entitled to its costs of the appeal fixed at $7,500 inclusive of disbursements
    and HST.

Released: April 4, 2022 K.F.

J.C.
    MacPherson J.A.

I
    agree. K. Feldman J.A.

I
    agree. P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Navukarasu, 2022 ONCA 273

DATE: 20220404

DOCKET: C68964

Pepall, Tulloch and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Amierthan Navukarasu

Appellant

Bryan Badali and Marcela Ahumada, for
    the appellant

Gregory Furmaniuk, for the respondent

Heard: March 25, 2022 by video
    conference

On appeal from the conviction entered on
    July 23, 2020 and the sentence imposed on October 2, 2020 by Justice Edwin B. Minden
    of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for robbery
    and aggravated assault, resulting from an incident that occurred at a pool
    hall/lounge.

[2]

While he was inside the lounge, the appellant
    was seen on video taking the complainants jacket, putting it on, and putting
    his own jacket over it, before leaving the lounge.

[3]

Once the complainant realized that his jacket
    was missing, he went outside and saw the appellant wearing his jacket. He confronted
    the appellant and an altercation ensued. During the altercation, the appellant
    chased the complainant in the parking lot, brandishing a knife. This encounter
    was captured on a parking lot surveillance video and was played in evidence at
    the appellants trial.

[4]

After the complainant escaped from the
    appellant, the appellant was confronted by the complainants girlfriend, who
    demanded the return of the jacket. The appellant pushed her to the ground and
    subsequently slashed her forehead with the knife, after which he threw the
    jacket to the ground.

[5]

At trial, the appellant denied that he
    deliberately stole the appellants jacket. He said that he took it inadvertently,
    thinking it was his own. He also denied ever having a knife.

[6]

The appellant raises three arguments against
    conviction in his factum but focused on two issues at the hearing. First, he
    argues the trial judge improperly inferred his guilt from disbelief of his
    testimony. Second, the appellant argues the robbery conviction is unreasonable.

[7]

We do not accept these arguments.

[8]

First, at no point did the trial judge rely on his
    rejection of the appellants evidence as circumstantial evidence of the
    appellants guilt. The trial judge rejected the appellants evidence as he was
    entitled to do. He found that the appellants evidence frequently showed a
    complete disregard for the truth and was transparently false, and he
    rejected it in strongly worded terms. The trial judges rejection of the
    appellants evidence was independent of his assessment of the appellants
    motive for offering his testimony. The reasons must be viewed as a whole and
    should not be parsed in an attempt to suggest that the decision is somehow
    tainted. Read as a whole, the reasons for the appellants conviction are clear
    and reveal no error.

[9]

Second, the verdict is not unreasonable. The
    appellant argues that the theft of the jacket was complete by the time the confrontation
    occurred, so he could not be convicted of robbery. But that argument depends on
    rejecting the facts as found by the trial judge. The trial judge found that Mr.
    Jeffries searched the lounge for his jacket and went outside a few minutes later
    to look for it. The appellant had left the lounge with the complainants jacket
    and remained outside the lounge with some of his friends. The appellant argued
    that at the time, he did not know he had taken a jacket that did not belong to
    him. It was open to the trial judge to find that the taking of the jacket and
    the violence that occurred outside the lounge were a single continuous
    transaction constituting robbery under s. 343(a) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. The trial judge found that the appellant used violence or
    the threat of violence in order to complete or perfect his theft of the jacket.
    That was his call to make, and in the absence of a palpable and overriding
    error it is entitled to deference. We see no such error.

[10]

In his factum, the appellant argues that the
    trial judge provided insufficient reasons for his decision, and in particular
    failed to address the absence of DNA on the knife. There is no merit to this
    argument. First, as noted in the Agreed Statement of Facts, blood may or may
    not transfer to a knife. Second, the trial judge gave extensive reasons. Third,
    the appellant is clearly seen on the video surveillance brandishing the knife,
    while chasing the complainant in the parking lot.

[11]

This was an overwhelming case: there were two
    credible and reliable witnesses along with video footage capturing the appellants
    taking of the jacket and showing the appellant, armed with a knife, chasing the
    owner of the jacket outside the lounge. It is clear from the reasons why the
    appellant was convicted.

[12]

The appeal from conviction is dismissed.

[13]

The appellant seeks leave to appeal sentence. He
    argues that the trial judge erred in finding that the appellant had evinced
    some degree of deliberation by carrying and concealing the knife and in
    rejecting the appellants request for a conditional sentence.

[14]

We do not agree with these submissions. The
    finding was open to the trial judge to make. We see no reason to interfere with
    the custodial sentence imposed by the trial judge. It was a fit sentence in the
    circumstances.

[15]

The appeal is dismissed. Leave to appeal
    sentence is granted, but the appeal is dismissed.

S.E.
    Pepall J.A.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.


WARNING

THIS APPEAL IS SUBJECT TO a publication ban issued October 31,
    2019 by Justice Thomas M. Wood:

1. THIS
    COURT ORDERS that there will be an order that the publication of any material
    that could identify either of the plaintiffs is prohibited.

COURT OF APPEAL FOR ONTARIO

CITATION: X.H. v. Cota, 2022 ONCA 274

DATE: 20220406

DOCKET: C69700

Doherty, Huscroft and Harvison Young
    JJ.A.

BETWEEN

X.H. and C.H.

Respondents

and

Her Majesty the Queen in Right
    of Ontario and
OPP Sergeant Randy Cota

Appellant

Norman Groot and Erin Stoik, for the
    appellant Randy Cota

Shahana Kar and Michael Saad, for the defendant
    Her Majesty the Queen

Daniel Zacks, Cara Valiquette and Jay
    Herbert, for the respondents

Heard: March 28, 2022 by video conference

On appeal from the order of Justice Mark
    L. Edwards of the Superior Court of Justice, dated June 22, 2021.

REASONS FOR DECISION

[1]

The respondents issued a statement of claim on
    September 19, 2016, alleging that the appellant police officer, Randy Cota, had
    committed various torts including negligence, intrusion upon seclusion,
    extortion/intimidation, misfeasance in public office, and intentional
    infliction of nervous shock. The claim alleged that the appellant attempted to
    manipulate and control the respondents, and to exact revenge on them for C.H.s
    rejection of his sexual advances. The respondents were granted leave to amend
    their claim in October 2019 to include sexual assault and battery. The amended
    claim pleaded that the appellant used his authority as a police officer to
    force sex on C.H.

The motions to strike and for summary
    judgment

[2]

The appellant brought a number of motions, including
    motions to strike the 2016 claims and for summary judgment. The appellant
    argued the claims were statute barred and that the respondents added
    allegations of sexual assault to their 2016 claims in order to circumvent the
    defence the appellant would otherwise have had under the
Limitations Act
,
    2002, S.O. 2002 c. 24, Sch. B.

[3]

The motion judge found that the pleadings of
    sexual assault triggered s. 16(1)(h) of the Act, which provides that there
    is no limitation period in respect of a proceeding based on a sexual assault.
    The motion judge found, further, that s. 16(1.3) operated to bring the
    claims arising from the other torts within the scope of s. 16(1)(h) and s. 16(h.1),
    because the appellant was a police officer at the time the acts were alleged to
    have occurred and so was in a position of trust and authority over C.H.

[4]

Consequently, the motion judge dismissed the
    appellants motion to strike the claim and motion for summary judgment. In
    addition, the motion judge declared that no limitation period applied to any of
    the respondents claims.

[5]

The appellant makes two arguments on appeal.
    First, he argues that s. 16(1.3) applies only to claims against third
    parties. We disagree.

[6]

This argument proceeds from a misreading of the
    decision in
Jane Doe v. Weinstein
, 2018 ONSC 1126 and of s. 16(1.3),
    which provides:

(1.3) For greater certainty, clauses (1)(h),
    (h.1) and (h.2) are not limited in any way with respect to the claims that may
    be made in the proceeding in relation to the applicable act, which may include
    claims for negligence, for breach of fiduciary or any other duty or for
    vicarious liability.

[7]

This section makes plain that no limitation
    period applies to any claim in relation to the sexual misconduct.
Jane Doe
applied but did not limit the application of the s. 16(1.3) to third parties.
    It applies to claims against the perpetrator of the sexual misconduct as well
    as third parties.

[8]

The motion judge did not err in finding that the
    claims in the amended Statement of Claim were in relation to sexual misconduct.
    The record before the motion judge established a connection between the alleged
    sexual assaults and the non-sexual torts alleged. That connection was
    sufficient to potentially afford all of the claims the protection of s. 16.

[9]

The motion judge properly dismissed the
    appellants motion for summary judgment. We do, however, agree with the
    appellants further submission that the motion judge erred in not only
    dismissing the summary judgment motion, but also declaring that no limitation
    defence applied to the claims. Paragraph 2 of the order reads:

THE COURT DECLARES that no limitation
    period applies to any of the Plaintiffs claims.

[10]

The effect of this declaration was to deny the
    appellant the opportunity to establish at trial that s. 16 did not apply to the
    non-sexual torts. For example, if the trial judge were to conclude that the
    sexual assaults alleged by the plaintiffs did not occur, s. 16 would not be
    engaged and the non-sexual assault torts would be subject to the normal
    two-year limitation period. Under that limitation period, those claims are
    statute-barred.

[11]

The motion judge should have left the ultimate
    determination of the application of s. 16 to the non-sexual assault torts to
    the trial judge. The trial judge could make that determination based on the
    findings of fact made at trial, especially any finding as to whether the
    alleged sexual assaults actually occurred.

[12]

Accordingly, the declaration must be set aside.

The costs order

[13]

The appellant argues that success on the motion
    was divided and the motion judge erred in principle by awarding costs on a
    substantial indemnity basis.

[14]

We disagree.

[15]

Success on the motion was not divided. The
    appellants motion was largely dismissed. The motion judge considered it
    appropriate to award costs on a blended substantial/partial indemnity basis
    because he found that the appellant had, by his conduct, needlessly inflated
    the costs of the motion. That was the motion judges call to make.

[16]

Finally, we note that the blended amount fixed
    by the motion judge was only slightly lower than what the respondents had
    sought on a partial indemnity basis. The costs awarded were not unreasonable
    and there is no basis for this court to interfere with them.

Conclusion

[17]

The appeal is allowed in part. The declaration in
    s. 2 of the order is set aside. The other terms of the order remain in place.

[18]

The appeal from the costs decision is dismissed.

[19]

As success on the appeal was divided, each party
    shall bear its own costs of the appeal.

Doherty
    J.A.

Grant
    Huscroft J.A.

Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Marshall v. Meirik, 2022 ONCA 275

DATE: 20220405

DOCKET: C69311

Doherty, Huscroft and Harvison
    Young JJ.A.

BETWEEN

Robert Leonard Marshall and
    Tracey Dorothy Hoyt

Plaintiffs/Defendants by Counterclaim
    (Respondents)

and

John Peter Meirik and Amber
    Madelynn Meirik

Defendants/Plaintiffs by Counterclaim
    (Appellants)

Michael Bookman, for the appellants

Colby Linthwaite, for the respondents

Heard: March 31, 2022 by video
    conference

On appeal from the judgment of Justice Jessica
    Kimmel of the Superior Court of Justice, dated March 8, 2021, with reasons
    reported at 2021 ONSC 1687, and 2021 ONSC 3059.

REASONS FOR DECISION

The Main Appeal

[1]

The appellants (defendants) agreed to purchase a
    cottage from the respondents (plaintiffs). The appellants repudiated the
    agreement prior to closing. The respondents relisted the property and sold the
    property a short time later for a considerably lower price.

[2]

On the summary judgment motion, the appellants
    acknowledged they had breached the agreement of purchase and sale. Among other
    things, they argued:

·

the resale price did not reflect the true value
    of the property when the respondents sold it; and

·

the respondents did not take available
    reasonable steps to mitigate their loss and, had they done so, their losses
    would have been eliminated or at least substantially reduced.

[3]

The motion judge rejected both arguments. She
    held the purchase price on the resale reflected the market value, meaning the
    respondents loss equalled the difference between the sale price agreed upon by
    the appellants and the ultimate resale price. In addition, the respondents were
    entitled to a commission adjustment.

[4]

The motion judge also rejected the appellants
    mitigation argument. She held the appellants had failed to meet their onus to
    show on the balance of probabilities that the respondents did not take
    reasonable steps that would have led to a higher resale price.

[5]

The appellants challenge the motion judges
    mitigation analysis. They advance two arguments:

·

the motion judge wrongly held, as a matter of
    law, that absent expert evidence the appellants could not meet their burden on
    the mitigation issue; and

·

the motion judge made various errors in her
    consideration of the evidence proffered by the appellants, including a failure to
    consider some of that evidence, and a failure to draw certain inferences.

[6]

We reject both arguments. Both amount to an
    attempt to re-argue the merits of the case before this court.

[7]

The motion judge did not hold, as a matter of
    law, that the appellants could not meet their onus without supporting expert
    evidence. In fact, the appellants did lead some expert evidence. The motion
    judge held that, having regard to the totality of the evidence led by the
    appellants, including the expert evidence, the appellants could not meet their
    onus on the mitigation issue. The motion judge applied the mitigation
    principles to the evidence adduced and found the evidence wanting in the
    absence of any independent expert testimony. We see no legal error in this
    analysis.

[8]

The appellants second argument takes issue with
    the motion judges findings of fact. The appellants submit the motion judge did
    not consider certain evidence and did not draw certain inferences. This ground
    of appeal is a straightforward attack on the motion judges fact-finding and
    runs headlong into the strong deference owed in this court to that fact-finding.

[9]

We see no basis to conclude the motion judge
    failed to consider evidence. She specifically outlined the evidence which the
    appellants claim she failed to consider. The inference to be drawn from that
    evidence was for the motion judge. We cannot interfere, absent palpable and
    overriding error. There is none.

The Costs Appeal

[10]

The appellants also seek leave to appeal the
    costs order. Leave to appeal is granted sparingly, but, in our view, should be
    granted in this case.

[11]

The respondents made a formal offer to settle
    the action in 2019. That offer was substantially lower than the amount
    ultimately awarded to the respondents.

[12]

In May 2020, counsel for the respondents, in
    reply to a query from counsel for the appellants, advised counsel that he was
    prepared to recommend that his clients accept $375,000 in settlement of the
    action. While that figure was much closer to the amount claimed and ultimately
    awarded than the earlier offer, it was still about $100,000 less than the total
    amount of the judgment eventually awarded.

[13]

The motion judge found that the 2020 exchange of
    correspondence between counsel was not an offer to settle and did not have the
    effect of revoking the 2019 offer. That offer remained alive to trial.

[14]

The motion judge, applying r. 49.10, held the
    respondents were entitled to their costs on a partial indemnity basis up to the
    date of the 2019 offer and on a substantial indemnity basis after that date.

[15]

There is no error in the motion judges
    conclusion that the 2019 offer remained in effect. The 2020 correspondence was
    not an offer to settle, but only an indication to counsel for the appellants of
    an amount counsel for the respondents was prepared to recommend to his clients
    should further negotiations ensue.

[16]

We also agree with the motion judge that, even
    if the 2020 correspondence is considered to be an offer to settle, the amount
    proposed in that correspondence was significantly lower than the total amount
    ultimately awarded to the respondents in the judgment. Assuming the 2020
    correspondence was an offer under r. 49, the respondents would be entitled to
    substantial indemnity costs on the basis of that offer.

[17]

The motion judge properly triggered the costs
    consequences of r. 49.10. There is no reason to interfere with the quantum
    awarded.

Conclusion

[18]

The appeal is dismissed. Leave to appeal costs
    is granted and the appeal is dismissed. Pursuant to counsels agreement, the
    respondents should have costs of the appeal in the amount of $11,000, inclusive
    of disbursements and relevant taxes.

Doherty J.A.

Grant Huscroft J.A.

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Billimoria v. Mistry, 2022 ONCA 276

DATE: 20220406

DOCKET: C69330

Pardu, Paciocco and Thorburn
    JJ.A.

BETWEEN

Homi Billimoria

Plaintiff (Appellant)

and

Maharukh Mistry and Firoze
    Mistry

Defendants (Respondents)

Michael S. Deverett, for
    the appellant

Ted Evangelidis and Eric
    Blay, for the respondents

Heard: March 23, 2022, by
    videoconference

On appeal from
    the judgment of Justice Jennifer Woollcombe of the Superior Court of Justice,
    dated March 24, 2021, with reasons at 2021 ONSC 1939.

REASONS FOR DECISION

OVERVIEW

[1]

This appeal arises from a dispute between two
    owners of a residential property located at 347 Glenn Hawthorne Boulevard,
    Mississauga (the property).

[2]

At the summary trial, the appellant Homi
    Billimoria sought a declaration that he is the sole owner of the property by
    virtue of ss. 4, 5, and 15 of the
Real Property Limitations Act
,
    R.S.O. 1980, c. L.15 (
RPLA
).

[3]

The appellant pointed to his exclusive possession
    of the property for more than ten years, the fact that he paid the expenses
    throughout, the respondents had not inspected the property for more than ten
    years, and that the respondents had done nothing to protect their property
    interest in more than ten years. He denied that there was a verbal agreement
    allowing him to stay in the home in exchange for paying carrying costs, with
    the expectation that the property would eventually be sold. He said that this
    alleged verbal agreement was incomplete, missing essential terms, and
    unenforceable.

[4]

The trial judge held that the appellant had a
    65% interest in the property, the respondents had a 35% interest in it, and
    that it should be sold.

[5]

The appellant claims the trial judge erred by
    holding that (i) the respondents could recover possession of the property
    despite ss. 4, 5, and 15 of the
RPLA
; and (ii) the property should be
    sold pursuant to the
Partition Act
, R.S.O. 1990, c. P.4. The appellant
    claims he is the sole owner of the property and that the respondents are
    dispossessed of their interest in the home as he has been in exclusive
    possession of the home for over ten years.

[6]

The respondents raise a third issue for the
    first time on appeal, which is that title to the property was registered under
    the
Land Titles Act,
R.S.O. 1990, c. L.5 before it was purchased by
    the parties, and consequently their interest could not be extinguished by the
    appellants exclusive possession because his possessory interest would have
    been adverse to or in derogation of the title of the registered owner,
    contrary to s. 51(1) of the
LTA
.

[7]

For the reasons that follow, the appeal is
    dismissed.

FACTUAL BACKGROUND

[8]

The history of the parties involvement with the
    property is set out below.

[9]

In the 1980s, the parties began buying properties
    to sell for profit. In 1988, the parties jointly purchased the property for
    $171,900 and paid a $30,000 deposit. At the time of purchase, the property was
    registered in Land Titles.

[10]

The parties took title as tenants in common,
    with 50% owned by the appellant and 50% by the respondent Ms. Maharukh Mistry.
    The appellant paid half of the $15,000 deposit and the parties disagree as to
    who paid the other $15,000. Until 1991, the property was rented for $7,800 per
    annum.

[11]

In 1991, when the parties were unable to rent or
    sell the property, they agreed that the appellant would move into it.

[12]

The appellant claims he became the sole owner of
    the property. He claims he paid all costs to maintain it including property
    taxes, mortgage, insurance and repairs. The respondents claim that when the
    appellant moved in, they had a verbal agreement that although the appellant
    would live there, make mortgage and property tax payments in lieu of paying
    rent, he and Ms. Mistry would remain joint owners and that the property would
    eventually be sold. The mortgage was paid off by May 1, 2004.

[13]

In January 1992, Ms. Mistry transferred her
    ownership interest to one of joint interest with her husband who is the other
    respondent, Mr. Firoze Mistry. In July 2016, the appellants interest in the
    property was transferred to Armin Mistry (unrelated to the respondents). The
    respondents did not know of and did not consent to the transfer. In May 2018,
    all the parties signed a document to restore the appellants and the
    respondents names on title.

[14]

In September 2018, counsel for the respondents
    advised that, given what had transpired, they wished to sell the property. In
    January 2019, counsel for the appellant registered a charge against it without
    the respondents knowledge or consent.

[15]

The appellant commenced an action seeking a
    declaration that he was the sole owner of the property because he was in
    exclusive possession of it for more than ten years and paid the carrying costs.
    The respondents brought a counterclaim asking that the property be sold
    pursuant to the
Partition Act
.

THE JUDGMENT

[16]

The trial judge held that the appellant had not
    established exclusive possession of the property under the
RPLA
because:

a.

The business history suggested that the parties
    bought six properties together including this one and they were jointly
    purchased as investment properties;

b.

The trial judge accepted Ms. Mistrys evidence
    that the respondents paid 50% of the deposit. This was consistent with their
    other business arrangements and with the fact that Ms. Mistry was registered on
    title as a 50% owner;

c.

The trial judge found that they had a well
    established trusting friendship and that in 1991, there was a verbal agreement
    that the appellant would live at the property without paying rent as long as he
    carried the major costs, and at some point, the property would be sold;

d.

After the appellant moved into the property, the
    parties did not conduct themselves as though the respondents had been
    dispossessed.

[17]

The trial judge also dismissed the appellants
    claim of proprietary estoppel, as there was never an express or implied
    representation that the appellant was to become sole owner, and there was no
    basis to find the respondents behaviour had been unconscionable.

[18]

However, the trial judge found that there was a
    proper basis, grounded in unjust enrichment, for an unequal division of the
    property. The trial judge found that the agreed arrangement lasted longer than
    was expected and that a constructive trust should be imposed to recognize the
    extent of the appellants contribution. She ordered that the appellant should
    receive 65% of the value of the property because the appellants contribution
    to the property was significantly more than the value of rent a tenant would
    have paid, which payments enabled the property value to increase. She held that
    if the proceeds of the sale were shared equally, the respondents would be
    enriched and the appellant would suffer a corresponding deprivation.

[19]

The trial judge therefore ordered that the
    property be partitioned and sold pursuant to the
Partition Act
. While
    she recognized that there may have been an agreement to sell the property only
    upon the agreement of all parties in 1991, the respondents decision to seek to
    sell the property now was reasonable in light of the appellants conduct from
    2016 to 2018.

ANALYSIS AND CONCLUSION

Jurisdiction

[20]

The appellant raises three issues on this
    appeal: the first is whether s. 51 of the
Land Titles Act
bars the
    appellants claim, the second is whether the trial judge erred in assessing the
    appellants actual possession of the property under the
RPLA
, and the
    third is whether the trial judge erred in ordering the sale of the property
    pursuant to the
Partition Act
.
The issues are
    interconnected and the interests of justice favour joinder:
Cavanaugh v.
    Grenville Christian College
, 2013 ONCA 139, 360 D.L.R. (4th) 670, at
    para. 86.

[21]

Although appeals from orders made under the
Partition
    Act
lie to the Divisional Court, the appeal from the final judgment
    determining the ownership of the property lies to this court, and this court
    has jurisdiction to deal with all the issues on appeal pursuant to s. 6(2) of
    the Courts of Justice Act.

Standard of
    Review

[22]

The issues raised by the appellant are issues of
    mixed fact and law which are subject to the standard of review of palpable and
    overriding error, absent an extricable legal error:
Housen v. Nikolaisen,
2002
    SCC 33, [2002] 2 S.C.R. 262,

at paras. 26-36. The trial judges
    factual findings are also subject to the standard of review of palpable and
    overriding error:
Housen,
at para. 10. A palpable and overriding error
    includes a finding that is clearly wrong, unreasonable or unsupported by the
    evidence:
H.L. v. Canada (Attorney General)
, 2005 SCC 25, [2005] 1
    S.C.R. 401, at para 4.

The
Land Titles Act
Issue

[23]

In our view, the new issue the respondents raise
    on appeal, that s. 51 of the
Land Titles Act
bars the appellants
    claim, is properly before us and is dispositive.

[24]

Appellate courts will generally not entertain
    new issues on appeal, because of the unfairness of requiring a party to argue
    an issue on appeal that it had no chance to adduce evidence on at trial:
Whitby
    (Town) v. G & G 878996 LM Ltd.
, 2020 ONCA 654, 5 M.P.L.R. (6th) 174,
    at para. 9. The burden is on the appellant to persuade the court that all the
    facts necessary to address the new issue are already before the court, and the
    decision as to whether to grant leave to allow a new argument is a
    discretionary decision to be guided by balancing the interests of justice:
Kaiman
    v. Graham,
2009 ONCA 77, 75 R.P.R. (4th) 157, at para. 18.

[25]

While the effect of s. 51 of the
Land Titles
    Act
was not raised at trial by different counsel for the respondents, this
    is a legal issue which does not depend on findings of fact, nor is there any
    suggestion that prior counsel failed to raise it for tactical reasons or that
    the interests of justice weigh in favour of not considering it. As such, and
    with the consent of the appellant, the respondents have satisfied their burden
    and we exercise our discretion to allow this issue to be raised on appeal:
Kaiman
.

[26]

The appellant claims that he is the sole owner
    of the property because his long physical occupation of the property
    dispossessed the respondents of their interest, within the meaning of s. 5 of
    the
RPLA
, and the respondents are now statute-barred pursuant to s.4
    of the
RPLA
, from bringing an action to recover the property. He
    argues that reliance on the
RPLA
is not a claim for adverse
    possession and is not governed by the principles of adverse possession, but
    instead rests on a finding that the person entitled to the property has been
    dispossessed or had discontinued  possession more than 10 years before
    attempting to make entry or distress or bringing an action. He argues that the
    trial judge erred in applying the principles of adverse possession. He also
    argues that his claim falls outside of s.51 of the
Land Titles Act
. We
    do not accept the distinction the appellant is attempting to make. In essence,
    his claim is for adverse possession under the
RPLA
. Nor do we accept
    his argument that his claim is not caught by s. 51 of the
Land Titles Act
.

[27]

Adverse possession is established where that
    claimant had actual open, notorious, constant, continuous, [and] peaceful
    possession for the statutory period of ten years in accordance with s. 4 of the
RPLA
, as well as an intention to exclude the true owner from
    possession, and effective exclusion of the true owner for the entire ten-year statutory
    period:
Vivekanandan v. Terzian,
2020 ONCA 110, 443 D.L.R. (4th) 678,
    at para. 21.

[28]

However, land that is registered in Land
    Titles cannot be obtained by adverse possession unless the ten-year exclusion
    period ran before the land was registered:
Sipsas v. 1299781 Ontario Inc.
,
    2017 ONCA 265, 85 R.P.R. (5th) 24, at para. 18. Section 51(1) is worded broadly
    and clearly embraces the claim the appellant is making. It provides, in
    relevant part:

Despite any provision of  the
Real
    Property Limitations Act
no title to and
no right or interest
in registered lands under this Act
that is adverse to or in derogation of
    the title of the registered owner shall be acquired
hereafter or deemed to
    have been acquired heretofore
by any length of possession or by prescription

    (emphasis added).

[29]

In this case, the property was already
    registered in Land Titles at the time it was purchased by the parties, and
    thus, the appellant could not have obtained title to it by adverse possession.
    The appellant cannot make out a claim of adverse possession regardless of how
    long the appellant actually occupied the home.

[30]

This alone is sufficient ground to dismiss
    the appeal.

The
RPLA
Issue

[31]

Second, even if a limitation claim under the
RPLA
had been available, we see no error in the trial judges conclusion that
    the appellant had not established actual possession of the property for the
    requisite ten-year period under the
RPLA.

[32]

She correctly articulated the law in respect of
    adverse possession as set out by this court in
Vivekanandan
.

[33]

She then provided comprehensive reasons for
    finding that the appellant had never established actual possession sufficient
    to dispossess the respondents. In particular, she noted that the appellant was
    occupying the property pursuant to a verbal agreement with the respondents.
    Given her finding that that the respondent co-owners permitted his occupation,
    the adversity element of adverse possession could not have been made out:
Teis
    v. Ancaster (Town)
(1997), 35 O.R. (3d) 216 (C.A.), at p. 221.

[34]

She cited the fact that the property was an
    investment property, the informality of their relationship due to their
    friendship, the joint deposit on the property, the agreement that the appellant
    should live at the property rent-free in exchange for paying carrying costs
    with the idea that one day the property would be sold, the mortgage, insurance
    and tax documents which were sent to the respondents, two mortgage payments
    which were paid by the respondents and other ownership obligations which were
    assumed by the respondents.

[35]

She also noted that the appellant had never told
    the respondents that the property was his alone. In fact, as recently as 2018,
    the parties jointly retained counsel to rectify the title issues to reflect the
    fact that they were all registered owners as tenants in common. She concluded
    that this evidence is inconsistent with the appellants intention to exclude
    the respondents from possession of the property.

[36]

For all these reasons, the trial judge held that
    as a factual matter, the respondents never lost possession of the property,
    either by dispossession or discontinuance of possession. She held that the
    appellant therefore failed to meet his burden of showing that he had
    successfully
dispossessed
the respondents of their interest in the property or that the
    respondents had discontinued their possessory interest in the property such
    that their rights in the property were extinguished.

[37]

We see no error in the trial judges conclusion
    that the appellant had failed to establish his claim under the
RPLA
.

The
Partition Act
Issue

[38]

Section 2 of the
Partition Act
provides
    that a joint tenant or tenant in common may be compelled to make partition or
    sale. The onus is on the party resisting sale to demonstrate reasons why it
    ought not to be sold. There must be malicious, vexatious or oppressive conduct
    to justify the refusal to sell:
Brienza v. Brienza
, 2014 ONSC 6942, at
    paras 24-27.

[39]

The appellant claims the trial judge erred in
    ordering the sale of the property having found that there was an agreement that
    the appellant could continue to live in the property on condition that he pay
    the carrying costs.

[40]

We disagree. While the trial judge accepted that
    there was an agreement among the parties in 1991, she also accepted that,
    there was an expectation on the [respondents] part that the [appellant] would
    move into the property for a much shorter period than ended up happening. There
    was an expectation that the property would be sold much earlier. Moreover,
    there was evidence that the agreement changed when the respondents discovered
    that they had been removed from title without being told, and steps had to be
    taken to rectify this. She found that there was no evidence that the
    respondents actions were malicious, oppressive or vexatious.

[41]

For these reasons and given the deference
    accorded to the trial judges exercise of discretion in ordering sale under the
Partition Act
, we see no error in the trial judges decision to allow
    the sale of the property.

[42]

The appeal is therefore dismissed. Costs of this
    appeal are awarded to the respondents in the amount of $25,000 as agreed by the
    parties.

G. Pardu J.A.

David
    M. Paciocco J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jayco Inc. v. Canada (Revenue
    Agency), 2022 ONCA 277

DATE: 20220407

DOCKET: C69359

Pardu, Paciocco and Thorburn
    JJ.A.

BETWEEN

Jayco,
    Inc.

Plaintiff (Appellant)

and

Her Majesty the Queen in Right
    of Canada and The Canada Revenue Agency

Defendants (Respondents)

David Douglas Robertson, Jonathan Ip
    and Brittany Rossler for the appellant

Nancy Arnold, Kevin Dias and Benjamin
    Chamberland, for the respondents

Heard: March 21, 2022 by video conference

On appeal from the order of Justice Frederick L. Myers of the Superior
    Court of Justice, dated March 22, 2021, with reasons reported at 2021 ONSC
    2120.

Pardu J.A.:

[1]

Jayco, Inc. [Jayco] manufactures
    recreational vehicles in the United States and sells them to Canadian dealers. The
    Canada Revenue Agency [the CRA] took the position that delivery occurred in
    Canada and that Jayco was obliged to and failed to collect and remit GST/HST from
    the dealers. It assessed Jayco for almost $14 million in taxes.

[2]

Jayco was successful in the Tax
    Court of Canada in establishing that delivery occurred in the United States,
    and the assessment was set aside. Jayco incurred legal costs in contesting the
    assessment and interest charges on the security posted for the taxes claimed
    pending the hearing of the appeal. It sued for recovery of these expenses but
    its action was dismissed pursuant to r. 21.1(1)(b) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, on motion by the defendants. The motion judge accepted
    the argument of the respondents that the CRA had no duty to indemnify the
    appellant for costs incurred in dealing with a GST/HST audit and had no private
    law duty of care which could found a claim for recovery of expenses incurred in
    contesting an audit by the CRA.

[3]

The appellant submits that the
    motion judge erred in striking its two claims, which it defined in the
    following terms in its factum:

1.

Whether the respondents, as principal, owe a duty to indemnify their
    agent (the appellant) for damages caused as a result of the agent following the
    principals instructions. The appellant claims that it was the statutory agent
    of the respondent under the
Excise Tax Act
, R.S.C., 1985, c. E-15 [the
ETA
].

2.

Whether the respondents owe a duty of care to GST/HST registrants who
    are appointed under the
ETA
to be agents of Her Majesty the Queen in right
    of Canada, thus permitting an action in negligence to proceed.

[4]

It is common ground that the standard of review is correctness. Furthermore,
    there is no dispute that the legal test for determining whether a claim should
    be struck under r. 21.01(1)(b) is whether it is plain and obvious that the statement
    of claim discloses no reasonable cause of action, or put another way, that the
    claim has no reasonable prospect of success. Novel but arguable claims should
    be allowed to proceed to trial:
R. v. Imperial Tobacco
    Canada Ltd.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 21;
Hunt v. Carey Canada Inc
., [1990] 2 S.C.R. 959.

The Nature of the Tax

[5]

In
Quebec (Revenue) v. Caisse populaire
    Desjardins de Montmagny
, 2009 SCC 49, [2009] 3 S.C.R. 286, at para.
10, the court described the operation of the GST/HST:

The GST, which was
    implemented in 1990 by legislation that amended the
ETA
(S.C. 1990, c. 45), replaced the former federal manufacturers sales tax. The GST
    can be regarded as a value-added tax. It is collected at every stage of the
    manufacturing and marketing of goods and services and is payable by the
    recipient, who is regarded as the debtor in respect of the tax liability to the
    Crown (s. 165
ETA
). However, the supplier is responsible for collecting
    and remitting the tax (s. 221(1)
ETA
). The supplier is deemed to hold
    the amounts so collected in trust for Her Majesty (s. 222(1) and (3)
ETA
)
    and must periodically file returns and make remittances. In addition, the Act
    establishes a system under which input credits can be claimed, at each step of
    the marketing and supply of the good, in respect of the taxes the supplier has
    had to pay to his or her own suppliers (
ss. 141.01
and
169(1)

ETA
).
    The ultimate recipient bears the full burden of the tax. [Citation omitted.]

The Claim for Indemnity

[6]

The appellant relies on s. 221(1) of the
ETA
,
which requires a supplier to collect
    the tax payable by a recipient:

221(1)
    Every person who makes a taxable supply shall, as agent of Her Majesty in right
    of Canada, collect the tax [] payable by the recipient in respect of the
    supply.

[7]

The appellant argues that this provision made it
    an agent of the respondents when it carried out the instructions of the CRA to
    either pay or secure the taxes claimed. Accordingly, the appellant argues that
    it is entitled to an indemnity owed by a principal to an agent when the
    principals instructions turn out to be based on an erroneous view of tax
    liability. The appellant acknowledges that the weight of authority has
    concluded that auditors carrying out administrative duties under the
Income
    Tax Act
, R.S.C., 1985, c. 1 (5th Supp.) [the
ITA
] owe no duty of
    care to taxpayers, but it argues that s. 221(1) of the
ETA
makes the
    present relationship different.

[8]

It is plain and obvious that this claim could
    not succeed.

[9]

The motion judge held that the Supreme Court of
    Canada resolved the issues of indemnity raised by this appeal in
Reference
    re Goods and Services Tax
, [1992] 2 S.C.R. 445. The appellant, however, submits
    that reference questions are advisory opinions which are not a decision by a
    court on the merits and which bind no one:
In Re Statutes of Manitoba relating
    to Education
(1894), 22 S.C.R. 577, at pp. 677-678;
Reference re
    Secession of Quebec
, [1998] 2 S.C.R. 217, at para. 25.

[10]

In
Reference re Goods and Services Tax
,
    Alberta argued that since suppliers were designated as agents of the government
    for the collection of the GST/HST, the common law duties of principals to
    agents were triggered, including a duty to reimburse agents for all costs and
    liabilities incurred in the course of the agency. The court found this to be an
    exaggeration of the common law duty of principals to agents, and adopted the
    language of Professor Fridman in The Law of Agency (5
th
ed. 1983), at
    p. 164:

The most important
    duty of the principal is to remunerate the agent for services rendered. The
    obligation to pay such remuneration  the agents commission  exists only
    where it has been created by an express or implied contract between principal
    and agent.

[11]

The court concluded that the duty to remunerate
    the agent for costs incurred in the course of the agency does not arise
    automatically, and only arises in cases in which the principal and the agent
    contract, expressly or by implication, for such remuneration to be paid. In the
    case of the GST/HST, it concluded that there was no contractual duty of
    reimbursement arising expressly or by implication, although it left open the
    case of whether there could ever arise a case in which governments would be
    under a duty to reimburse agents unilaterally created by statute for the costs
    incurred in the course of their agency: at p. 476.

[12]

The court went on to consider the common law
    right of indemnification for agents who inadvertently cause tortious injury to
    others in the course of their agency, and concluded that the collection of
    taxes as an agent in compliance with the
ETA
could not give rise to a
    right to indemnification: at pp. 476-477.

[13]

Finally, the court noted that any right to
    remuneration for the time and trouble involved in collecting the GST/HST would
    have to flow from the
Act
itself. The
Act
was silent on
    compensation, though it provided for a one-time transitional credit. Since Parliament
    had directed its mind to the issue of compensation for the costs of compliance
    with GST/HST collection, and established a scheme for compensation, common law
    rights which might have operated but for the statute cannot be relied upon: at
    p. 478.

[14]

Here, there is no question of express or implied
    contractual entitlement to reimbursement. There is no tortious liability to a
    third party which is the subject of a claim for indemnification. Section 221(1)
    of the
ETA
limits the agency to the collection of the tax from a
    recipient of a supply.

[15]

Both the
ITA
and the
ETA
rely
    on self-reporting by taxpayers. Those acts establish administrative structures
    for the assessment and audit of taxpayers. When the CRA delivers a Notice of
    Assessment or Reassessment claiming that more taxes are owing and the taxpayer
    delivers a Notice of Objection, the parties are taking opposing positions. Under
    these circumstances, it cannot be said that the taxpayer is acting as agent of
    the tax authority when it incurs interest or legal costs in the course of
    asserting its position.

[16]

Interest paid to post security for the taxes
    claimed, and legal fees incurred to contest the assessment, are not incurred
    for the collection of the tax from a recipient of a supply.

[17]

In the face of the comprehensive statutory
    scheme providing for Notices of Objection, appeals to the Tax Court of Canada,
    judicial review and some remedies for overpayment, such as interest on refunds
    and awards of costs, the absence of statutory provisions for indemnification for
    other interest paid and other legal costs is telling. Here, the Tax Court of
    Canada awarded solicitor and client costs to Jayco. Section 221 does not
    provide a basis to infer a statutory entitlement to more costs and interest
    beyond that provided in the
ETA
and the
Tax Court of Canada Act
,
    R.S.C., 1985, c. T-2.
[1]

[18]

Reference re Goods and Services Tax
is not binding, but it is persuasive. The motion judge was correct
    to conclude that it is plain and obvious that there is no right of indemnity
    arising from s. 221 of the
ETA
for the expenses claimed by the
    appellant.

Does the CRA owe a duty of care in relation
    to its administrative and audit functions?

[19]

The motion judge held that there was ample case
    law rejecting the proximity required to formulate a private law duty of care
    between the CRA and taxpayers facing an audit. While he noted that there could
    be a private law duty of care where the CRA undertook a criminal investigation,
    an investigator of criminal offences did not have the same relationship of an
    auditor to a taxpayer while carrying out administrative duties in an audit. This
    conclusion is so clearly right that the motion judge came to the correct
    decision in dismissing Jaycos duty of care claim pursuant to r. 21.1(1)(b).

[20]

Resolution of this issue turns on whether there
    is sufficient proximity between a taxpayer and the CRA to establish a prima
    facie duty of care. The relationship between the parties and broad questions of
    policy are relevant here:
Cooper v. Hobart
, 2001 SCC 79, [2001] 3
    S.C.R. 537, at para. 30. The second stage of the inquiry asks whether there are
    residual policy considerations which should negate or limit that duty of care.

[21]

Where a statutory regulator is mandated to
    protect the public interest, the creation of a private law duty of care may
    conflict with the regulators public duties. As noted in
Imperial Tobacco
,
at paras. 43-45:

A complicating factor is the role that
    legislation should play when determining if a government actor owed a
prima
    facie
duty of care. Two situations may be distinguished.  The first is the
    situation where the alleged duty of care is said to arise explicitly or by
    implication from the statutory scheme. The second is the situation where the
    duty of care is alleged to arise from interactions between the claimant and the
    government, and is not negated by the statute.

The argument in the first kind of case is that
    the statute itself creates a private relationship of proximity giving rise to a
prima facie
duty of care. It may be difficult to find that a statute
    creates sufficient proximity to give rise to a duty of care.  Some statutes may
    impose duties on state actors with respect to particular claimants. However,
    more often, statutes are aimed at public goods, like regulating an industry (
Cooper
),
    or removing children from harmful environments (
Syl Apps
).  In such
    cases, it may be difficult to infer that the legislature intended to create
    private law tort duties to claimants. This may be even more difficult if the
    recognition of a private law duty would conflict with the public authoritys
    duty to the public: see, e.g.,
Cooper
and
Syl Apps
. As stated
    in
Syl Apps
, [w]here an alleged duty of care is found to conflict
    with an overarching statutory or public duty, this may constitute a compelling
    policy reason for refusing to find proximity (at para. 28; see also
Fullowka
    v. Pinkertons of Canada Ltd.
, 2010 SCC 5, [2010] 1 S.C.R. 132, at para.
    39).

The second
    situation is where the proximity essential to the private duty of care is
    alleged to arise from a series of specific interactions between the government
    and the claimant. The argument in these cases is that the government has,
    through its conduct, entered into a special relationship with the plaintiff
    sufficient to establish the necessary proximity for a duty of care. In these
    cases, the governing statutes are still relevant to the analysis. For instance,
    if a finding of proximity would conflict with the states general public duty
    established by the statute, the court may hold that no proximity arises:
Syl
    Apps
; see also
Heaslip Estate v. Mansfield Ski Club Inc.
, 2009
    ONCA 594, 96 O.R. (3d) 401. However, the factor that gives rise to a duty of care
    in these types of cases is the specific interactions between the government
    actor and the claimant.

[22]

Here, the mandate of the CRA is to ensure that
    taxpayers pay taxes that are lawfully owed, for the benefit of all taxpayers
    and the country as a whole. The
ETA
establishes a comprehensive regime
    to deal with disputes over taxes owing, including appeals and judicial review. Recognition
    of a private law duty here would conflict with the agencys duty to the public;
    there is nothing in the legislative scheme to suggest that such a duty was
    contemplated. The administrative regime for enforcement of the GST/HST is
    broadly similar to that in place to enforce the
ITA
.

[23]

There are many instances where courts have held
    that broad statutory public duties foreclose a private law duty of care. As
    noted in
Reference re Broome v. Prince Edward Island
, 2010 SCC 11,
    [2010] 1 S.C.R. 360, such public duties do not generally, in and of themselves,
    give rise to private law duties of care: at para. 13; see also
Eliopoulos
    v. Ontario (Minister of Health & Long Term Care)
(2006), 82 O.R. (3d)
    321 (Ont. C.A.); and
River Valley Poultry Farm Ltd. v. Canada (Attorney
    General)
, 2009 ONCA 326, 95 O.R. (3d) 1.

[24]

Nor is there anything in the specific
    relationship between the appellant and the CRA that suggests that a finding of
    sufficient proximity would be appropriate. That the CRA was ultimately shown to
    have been wrong to assess the appellant for the taxes it claimed is not enough.

[25]

The appellant argues that
McCreight v.
    Canada (Attorney General)
, 2013 ONCA
    483,
116 O.R. (3d) 429 holds that in some circumstances, revenue
    authorities will owe a duty of care to a taxpayer.

[26]

In
McCreight
, the CRA was concerned
    that taxpayers and their accountants were applying for fraudulent research and
    development credits. It obtained search warrants for the homes and businesses
    of the taxpayers, their lawyers and accountants. It was authorized to retain
    the materials seized until July 1999. It had not completed its examination of the
    materials by then and applied for an extension. It was ordered to return the
    original materials by November 9, 1999.

[27]

On November 9, 1999, criminal charges were laid
    against various taxpayers and advisors alleging fraud and conspiracy. There was
    a judicial finding that the information in support of the charges was sworn primarily
    to retain possession of the seized documents: at para. 6. The criminal charges
    were ended by discharges, withdrawals or stays.

[28]

The plaintiffs sued for a variety of causes of
    action, including negligence. This court overturned the motion judges ruling
    that it was plain and obvious that the CRA investigator owed no duty of care to
    the plaintiffs, at paras. 60-62:

In my view, in this case, the motion judge
    erred in concluding that it was plain and obvious that the respondent CRA
    investigators did not owe a duty of care to McCreight and Skinner, policy
    considerations would foreclose such a duty in any event and, therefore, the
    negligence claim had no reasonable prospect of success and should be struck.

Firstly, given the Supreme Court's ruling in
Hamilton-Wentworth
that, in certain circumstances, police officers may owe a duty of care to their
    suspects, surely it is not plain and obvious that a CRA investigator owes no
    such duty when operating under
ITA
provisions that attract criminal
    sanction and under the
Criminal Code
. The same analogical reasoning
    applies to any residual policy rationale that could negate such a duty.

Secondly, I see no
    relevant distinction between the above-cited case of
Leroux
and this
    case. That case that involved a claim of negligence against CRA employees as
    well and the British Columbia Court of Appeal dismissed an appeal of an order
    permitting the cause of action to proceed to trial. The Court was not persuaded
    that the claim should be struck because it was at least arguable that such a
    cause of action could succeed and the issue was to be considered at trial.

[29]

The critical distinction that made
McCreight
different from the present case was the institution of criminal proceedings.
Hill
    v. Hamilton
‑
Wentworth Regional Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R. 129

established that police officers have a duty in certain
    circumstances to an identified suspect to conduct a reasonable investigation.

[30]

This courts approval of
Leroux v. Canada
    Revenue Agency
, 2012 BCCA 63, 347 D.L.R. (4th) 122 as a basis to allow the
    action to proceed where criminal charges have been laid does not amount to
    affirmation that a duty of care also exists when the CRA undertakes
    administrative assessments and audits.

[31]

As the court noted in
McCreight
, it is
    not plain and obvious that CRA investigators owe no duty of care to those they
    are investigating when operating under
ITA
provisions that attract
    criminal sanction and under the
Criminal Code
: at para. 61.

[32]

Here, the appellants proximity claim was made
    in a non-criminal investigation where only its economic interests were at
    stake. Any liberty interests it might have had were not threatened and it
    asserted no
Charter
rights:
River Valley
,
at para. 51.

[33]

Policy reasons also favour rejection of a
    private law duty of care in relation to administrative assessments and audits. Such
    a duty would expose the government to unlimited liability to a practically
    unlimited class: taxpayers.

[34]

I agree with the views expressed in
Grenon
    v. Canada Revenue Agency
, 2017 ABCA
    96, 49 Alta. L.R. (6th) 228
, at para. 25, leave to appeal refused, [2017]
    2 S.C.R. vii (note):

[I]t is plain and obvious
    that an action in negligence cannot succeed. It is clear that, because of the
    inherently adverse relationship between auditors who are exercising a statutory
    function and taxpayers, a finding of sufficient proximity to ground a private
    law duty of care does not exist.

[35]

I conclude that the motion judge was correct to
    conclude that the CRA did not owe a private law duty of care to Jayco when it
    assessed Jayco for the taxes it claimed were owing.

[36]

A taxpayer may not be left without a remedy
    where it can establish the ingredients of an intentional tort, such as
    misfeasance in public office, which requires a showing of deliberate unlawful
    conduct in the exercise of public functions and awareness of the unlawfulness
    of the conduct and the likelihood of injury to the plaintiff:
Odhavji
    Estate v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23.
    Here, the appellant has not established any such intentional tort.

[37]

Accordingly, I would dismiss the appeal by
    Jayco, with costs to the respondent fixed at $10,000 inclusive of disbursements
    and taxes.

Released: April 7, 2022 G.P.

G.
    Pardu J.A.

I
    agree David M. Paciocco J.A.

I
    agree J.A. Thorburn J.A.

[1]
Section 296 of the
ETA
provides for interest on overpayments
    of tax, at a prescribed rate. Section 18.26 of the
Tax Court of Canada Act
allows that court to award costs to a taxpayer.