CITATION:
R. v. Shepherd, 2011 ONCA 92

DATE: 20110202

DOCKET: C50349

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Shepherd

Appellant

Misha

Feldmann
,
          for the appellant

Alexander
Hrybinsky
, for the
          respondent

Heard and released orally:
February 1, 2011

On appeal from the finding of not
          criminally responsible on February 4, 2009, by Justice Deborah K. Livingstone
          of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant raises two grounds of appeal.

[2]

First, he argues that, instead of requiring the Crown
    to prove that the appellant was not criminally responsible, the trial judge
    reversed the onus and required the appellant to prove that he was criminally
    responsible.  However, the trial judges
    reasons demonstrate that she was alive to the proper onus on the Crown, which
    had been the subject of discussion with counsel during submissions.  In her reasons, the trial judge explained
    that the issue is whether [the appellant] was not criminally responsible on
    account of mental disorder.  She considered
    the Crowns expert evidence in support of that issue.  In addition, the trial judge specifically
    addressed the Crowns position that it had proven the appellants NCR status,
    not just on the required proof of balance of probabilities, but also on the
    standard of proof beyond a reasonable doubt.  In support of his argument, the appellant points to the trial judges later
    reliance on his own evidence and her observation that the appellant did not
    demonstrate that he understood the nature and quality of his acts or their
    wrongfulness.  However, the trial judges
    comments cannot be taken out of context.  A fair reading of the reasons as a whole shows that the trial judge was
    merely observing that the appellants own evidence gave further support to the
    experts opinion.  Further, the trial
    judge concluded her reasons by stating that she was satisfied of the
    appellants NCR status. We would not give effect to this ground of appeal.

[3]

Second, the appellant argues that the trial judges
    reasons were inadequate.  We do not
    agree. The reasons fulfilled their required function and reviewed the aspects
    of the unchallenged expert evidence upon which the trial judge relied.  They also discuss Mr. Shepherds presentation
    and his own evidence regarding his perceptions of the events.  In our view, it was open to the trial judge to
    conclude on the basis of the evidence that the Crown had established that the
    appellant did not appreciate the nature and quality of his acts and did not
    know that his acts were wrong.

[4]

Accordingly, the appeal is dismissed.

M.J. Moldaver J.A.

E.A. Cronk J.A.

S.E. Lang J.A.


WARNING

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

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

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

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.

CITATION: R. v. Stockton, 2011
      ONCA 31

DATE: 20110114

DOCKET: C50665

COURT OF APPEAL FOR ONTARIO

MacPherson, Sharpe and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Stockton

Appellant

Shawn McNamara, for the appellant

Grace Choi, for the respondent

Heard:  January 13, 2011

On appeal from the conviction
          entered by Justice C. Gilmore of the Superior Court of Justice dated April 6,
          2009 and from the sentence imposed by Justice Gilmore dated May 26, 2009.

APPEAL BOOK ENDORSEMENT

[1]

The appellant, Paul Stockton, appeals from his conviction by Gilmore J.
    of the Superior Court of Justice on April 6, 2009 for two counts of sexual
    assault, two counts of sexual intercourse, and one count of luring a child
    using a computer. The offences related to the 12-year-old complainant.

[2]

The appellant contends that the trial judge did not properly address the
    inconsistencies in the complainants evidence. We disagree. In her
    comprehensive reasons, she recognized and discussed several inconsistencies in
    an appropriate fashion.  Moreover, there was overwhelming confirmatory evidence
    in the appellants e-mails and letters to the complainant to support the trial
    judges conclusions.

[3]

The appellant submits that the facts of this case do not support the
    luring a child using a computer offence.

[4]

We disagree.  The facts of this case easily fit within the definition of
    the offence in s. 172.1(1)(c) of the
Code
.

[5]

Finally, the global sentence of 21 months for these offences is a fit
    sentence.  Although the trial judge stated, incorrectly, that the absence of a
    guilty plea was an aggravating factor, we conclude that the global sentence she
    imposed was nevertheless fit.

[6]

The appeal is dismissed.


CITATION: R. v. Ward, 2011 ONCA 81

DATE: 20110131

DOCKET: C47163

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Russell Ward

Appellant

Daniel J. Brodsky, for the appellant

Amy Alyea, for the respondent

Heard and released orally: January 26, 2011

On appeal from the conviction
          entered on October 31, 2003 and the sentence imposed on October 14, 2005 by
          Justice G. Patrick Smith of the Superior Court of Justice, sitting without a
          jury.

ENDORSEMENT

[1]

In October 2005, G.P. Smith J. declared the appellant, Christopher Ward
    to be a dangerous offender and sentenced him to an indeterminate sentence in a
    penitentiary.  The sentencing judge, in his words, could not conclude that the
    public threat that Mr. Ward poses can be reduced to an acceptable level through
    either a determinate period of detention or a determinate period of detention
    followed by a long-term supervision order.

[2]

Mr. Ward appeals the finding that he is a dangerous offender.  In his
    factum, he seeks either a determinate sentence for his index offence, the
    aggravated assault of a woman he had been dating, or to be designated a
    long-term offender.  In oral argument, Mr. Ward limits his request to a
    long-term offender designation.  Mr. Ward submits that the sentencing judge
    erred in excluding the possibility that the risk to the public he poses can be
    managed in the community.  He relies on the evidence of the area director for
    Correction Services Canada and the parole officer in the northwest region.

[3]

We do not accept Mr. Wards submission.  Importantly, neither the area
    director nor the parole officer testified that Mr. Ward was manageable in the
    community.  Moreover, in his thorough and well-reasoned decision, the sentencing
    judge considered the submission Mr. Ward now raises and the evidence he relies
    on and yet concluded at para. 107 of his reasons:

it is abundantly evident to me there is no system
    or infrastructure in place that could effectively supervise and manage the risk
    of Mr. Ward re-entering society.  Given his past history, personality profile
    and lack of self-awareness, I find that there would have to be constant
    supervision to ensure the safety of the public from future violent outbursts
    that would likely involve women with whom he has an intimate relationship.
    Constant supervision is neither possible nor reasonable.

[4]

The sentencing judge also concluded at para. 109 of his reasons that The
    imposition of all the usual release conditions, including treatment and even
    electronic monitoring, would not  reduce the level of risk of releasing Mr.
    Ward into society to a reasonable and acceptable level.  These conclusions are
    amply grounded in the record before the sentencing judge.  He summarizes in a
    series of bullet points at para. 99 of his reasons the evidence he relies on.

[5]

We agree with the sentencing judges assessment that this evidence
    overwhelmingly shows that the risk Mr. Ward posses to society cannot be
    controlled now or in the future.

[6]

Accordingly, the appeal is dismissed.

Doherty J.A.

John Laskin J.A.

E.E. Gillese
    J.A.


WARNING

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

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

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

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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.

CITATION: R. v. Wood, 2011 ONCA
      11

DATE:  20110106

DOCKET: C51927

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Guy L. Wood

Appellant

Kenneth J. Peacocke, for the appellant

Matthew Asma, for the respondent

Heard: January 6, 2011

On appeal from the judgment of Justice J. E. Ferguson of the
          Superior Court of Justice, dated March 12, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The proposed appeal is fact-driven.  There are no important legal issues
    raised and the merits are not strong.

[2]

Leave to appeal is denied.


CITATION: Riach v. MacInnis, 2011
      ONCA 6

DATE: 20110107

DOCKET: C52052

COURT OF APPEAL FOR ONTARIO

Goudge, Sharpe and LaForme JJ.A.

BETWEEN

Shawn Riach

Appellant (Plaintiff)

and

Lawrence Todd MacInnis and Maritime Electric Company
          Limited

Respondents (Defendants)

Earl A. Cherniak, Q.C., for the appellant

Malcolm Scott, for the respondents

Heard and released orally: January 5, 2011

On appeal from the judgment of Justice W. U. Tausendfreund of
          the Superior Court of Justice dated April 8, 2010.

ENDORSEMENT

[1]

We cannot say that no jury acting judicially could have reached this
    verdict.

[2]

There was ample evidence that the appellant had the means to avoid this
    accident and failed to do so. He did not apply his brakes, or slow down
    significantly, when approaching MacInnis from the rear. He attempted to pass to
    the left a driver who had his left turn signal on in a no passing section of
    the highway. He then took sudden evasive action which resulted in the
    collision.

[3]

There was ample evidence for the jury to find no negligence on the part
    of MacInnis. He had his left turn signal on for some considerable period of
    time before the accident and, as he proceeded to turn left, he stopped, because
    he had lost sight of Riach when Riach undertook his sudden evasive action. This
    was a sound basis for finding no negligence on MacInnis part.

[4]

The appeal is dismissed. Costs to the respondent fixed at $10,000.00
    inclusive of disbursements and applicable taxes.

S. T. Goudge J.A.

Robert
    J. Sharpe J.A.

H. S. LaForme J.A.


CITATION: Royal Bank of
          Canada v. Rastogi, 2011 ONCA 47

DATE:  20110120

DOCKET: C52474

COURT OF APPEAL FOR ONTARIO

Doherty, Watt and Epstein JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff (Appellant)

and

Ankur Rastogi
and Toronto Dominion Bank

Defendants (Respondent)

AND BETWEEN

Ankur Rastogi

Plaintiff by
          Counterclaim (Respondent)

and

Royal Bank of Canada, RBC Direct Investing Inc.
,
          and RBC Dominion

Securities
          Inc.

Defendants by
          Counterclaim (Appellants)

Martin Greenglass, for the appellants

Christopher J. Cosgriffe, for the respondent

Heard: November 19, 2010

On appeal from the order of Justice
          Edward P. Belobaba of the Superior Court of Justice dated July 16, 2010, with
          reasons reported at (2010), 83 C.C.E.L. (3d) 98.

Doherty J.A.:

I

[1]

The appellant, the Royal Bank of Canada (RBC), claims that it is
    entitled to unilaterally and without court sanction effectively freeze accounts
    belonging to the respondent, Ankur Rastogi (Rastogi), pending the results of
    its action against Rastogi.  Three of those accounts are RBC accounts, two are
    accounts with the other appellant, RBC Direct Investing Inc. (RBC Direct), an
    affiliate of RBC, and one account, an account that Rastogi holds jointly with
    his wife, is with the Toronto Dominion Bank (TD).  Belobaba J. (the motion
    judge) agreed that RBC was entitled to freeze its own accounts but ordered that
    the accounts at RBC Direct and TD should be released immediately to Rastogi.
    RBC and RBC Direct appeal from that order.  Rastogi has not appealed from the
    order made with respect to the RBC accounts and the status of these accounts is
    not in issue on this appeal.

[2]

Counsel for the appellants submits that although Rastogi purported to
    bring the motion under Rule 44, the motion was in reality a motion for summary
    judgment.  Counsel argues that the motion judge effectively gave judgment on
    some of the claims advanced by RBC and by Rastogi in his counterclaim and that
    he erred in doing so in the face of several triable issues.

[3]

I agree with counsel for RBC that Rule 44 had no application.  This was
    in reality a motion for summary judgment on Rastogis entitlement to the funds
    in his accounts.  However, I agree with the motion judge that RBC had no basis
    in law to prevent Rastogi from accessing his funds in RBC Direct and TD.  This was
    an appropriate case for summary judgment in the terms of the order made by the
    motion judge.  I would vary the parts of the order referable to the accounts at
    RBC Direct and TD to a judgment in the same terms, and would otherwise dismiss
    the appeal.

II

[4]

In its claim, RBC alleges that between December
    2007 and September 2008 Rastogi misused his position as an employee of RBC to
    establish an arbitrage scheme trading Canadian and US dollars in his RBC
    accounts.  RBC alleges that as a result of this illicit scheme, Rastogi made
    about $700,000 in net profit and RBC suffered the equivalent loss.

[5]

According to RBCs allegations, Rastogi took
    advantage of a loophole in the RBC online banking system and his access to an
    employee preferred exchange rate to complete hundreds of currency exchange
    transactions on his own behalf at the opening of the market each day.  He was
    able to make the trades at prices that ensured him a profit and an equivalent
    loss to RBC.  RBC alleges that in operating the scheme to his personal
    advantage and the detriment of RBC, Rastogi breached the terms of his contract
    of employment with RBC and his duty of loyalty to RBC.

[6]

Rastogis trading was funded with borrowing on
    his RBC line of credit.  The proceeds from the scheme were paid into his RBC
    accounts.  Some of the proceeds were transferred from those accounts to Rastogis
    accounts at RBC Direct.  Some of the proceeds were also transferred to Rastogis
    joint account at the TD.

[7]

In its lawsuit commenced in the fall of 2008,
    RBC seeks:

·

Damages for unjust enrichment and breach of
      Rastogis employment contract in the amount of $700,000;

·

An order tracing the proceeds of the arbitrage
      scheme including an order tracing those proceeds into the hands of third
      parties;

·

A declaration that the proceeds are held in
      trust for RBC;

·

An interim and permanent injunction restraining
      Rastogi from dissipating the proceeds of the scheme.

[8]

RBC took no steps to obtain any interim relief.
    Instead, it froze Rastogis three accounts with RBC.  It also, presumably by
    virtue of its relationship with RBC Direct, froze both of Rastogis accounts with
    RBC Direct.  RBC then commenced this action and, by naming the TD as a
    defendant, effectively froze Rastogis account at TD.  Pursuant to s. 437(2) of
    the
Bank Act
, S.C. 1991, c. 46, TD declined to pay the funds in the
    account to Rastogi, pending either a court order or RBCs consent.
[1]
TD is holding the
    funds pending court order.  It takes no position in respect of the competing
    claims of RBC and Rastogi.

[9]

In his defence, Rastogi claims that he never
    worked for RBC although he acknowledges being employed by its affiliate RBC
    Dominion Securities Inc. (RBC Dominion).  Rastogi admits that he engaged in currency
    trading on his own behalf.  He alleges, however, that he used publicly
    available information and traded at the rates set by RBC.  Rastogi maintains
    that his trading was well known to the RBC representatives at the branch where
    he kept his accounts.  He contends that he did nothing that breached his
    contract of employment or made improper use of information available to him as
    an employee.  Rastogi goes on to assert that RBC did not suffer any loss as a
    result of his currency trading.

[10]

Rastogi also counterclaims against RBC, RBC
    Direct and RBC Dominion.  He seeks the return of all funds in his accounts at
    those institutions, damages for improperly freezing those accounts and damages
    for wrongful dismissal.  Rastogi asserts that the funds in the accounts at RBC
    Direct and TD do not come exclusively from the profits earned in his currency
    exchange trading and that, by freezing those accounts without any authority to
    do so, RBC has made it impossible for him to pay his outstanding debts, such as
    his mortgage and his daily living expenses.

[11]

Rastogi also cross-claims against TD.  He seeks
    an order requiring TD to release the funds in the account jointly held by him
    and his wife.  As indicated above, TD takes no position on this claim.

III

The Motion Judges Ruling

[12]

RBC claimed that Rastogi owed it some $700,000.  There was about
    $100,000 in Rastogis three RBC bank accounts.  The credit in those accounts
    represented a debt owed by RBC to Rastogi.  The motion judge held, at paras.
    8-12, that RBC could claim a set off of the credits in Rastogis account
    against any debt owed by Rastogi to RBC.  The set off claim justified RBCs
    refusal to release the funds in Rastogis RBC accounts unless ordered to do so
    following a trial of the merits of the respective claims.

[13]

The motion judge determined that RBC Direct had no claim against Rastogi
    and therefore no debt that it could purport to set off against the credit in
    Rastogis accounts at RBC Direct.  The motion judge also rejected the argument
    that because of the corporate affiliation between RBC and RBC Direct, RBC was
    entitled to treat Rastogis accounts in RBC Direct as if they were accounts in
    RBC.  The motion judge said at para. 13:

More importantly, Direct Investing (DI) makes no
    claim against Rastogi.  It has no legal basis, in set off or otherwise, for
    freezing his accounts and holding on to his funds, absent a court-granted
    injunction, which in all likelihood would not be granted on these facts.  In
    any event, no such injunction has been sought by DI.

[14]

The motion judge found no basis to withhold Rastogis funds held by TD
    (paras. 16-21).  He held that RBCs mere assertion that it was entitled to a
    tracing order could not provide the basis for withholding Rastogis funds.  The
    motion judge also rejected RBCs contention that s. 437(2) of the
Bank Act
gave RBC a right to freeze Rastogis accounts at TD.  The motion judge interpreted
    s. 437(2) as merely giving TD the option of interpleading the funds into court
    or holding the funds pending court order once TD was sued.  TD had chosen the
    latter course.  The motion judge concluded at para. 21:

RBCs claim for a tracing order is not enough,
    absent an injunction or some other court order or at least some proof of legal
    entitlement, to justify any further retention by the TD Bank of depositor Rastogis
    funds.  In my view, these funds should be released immediately.

IV

The Nature of the Motion

[15]

Rastogis motion was brought under Rule 44.
    That rule applies to a motion for an interim order made under s. 104(1) of
    the
Courts of Justice Act
, R.S.O. 1990, c. C.43.  That section provides:

In an action in which the
recovery
    of possession of personal property is claimed
and it is alleged that the
    property,

(a)       was unlawfully taken from the possession of the plaintiff;
    or

(b)       is unlawfully
    detained by the defendant,

the court, on motion, may make
    an interim order for recovery of possession of the property
. [Emphasis added.]

[16]

Section 104 and Rule 44 speak of recovery of
    possession of personal property.  That phrase is not defined in the Act or in
    Rule 44.

[17]

A credit in a customers bank account is treated
    as a debt owed by the banker to the account holder.  The relationship between
    the bank and the account holder is one of debtor and creditor:
BMP Global
    Distributions Inc. v. Bank of Nova Scotia
, [2009] 1 S.C.R. 504, at para.
    63.  Although RBC Direct is not a bank, I see no reason to treat credits in the
    RBC Direct accounts any differently.  Those credits represented a debt owed by
    RBC Direct to Rastogi.

[18]

The language of s. 104 of the
Courts of
    Justice Act
and, even more so, the language of Rule 44, suggest that personal
    property means property that is tangible and capable of physical description.
    The security requirements addressed in rule 44.03 suggest the same interpretation.
[2]
On this interpretation
    a debt would not constitute personal property for the purpose of Rule 44.

[19]

It is unnecessary for me to come to any firm
    conclusion as to whether a debt is included within the phrase personal
    property in s. 104 and Rule 44.  Even if the section and the rule could have
    application to a debt, Rastogi was not seeking an interim order for possession
    of property, and was not offering to post any security.  Rastogi wanted the release
    of his funds plain and simple.  The order made by the motion judge reflects the
    nature of the relief sought.  There is nothing interim about the relief ordered
    by the motion judge.
[3]
The relief granted was not available under Rule 44.

V

Should the Motion be Treated as a Motion for Summary Judgment
    Under Rule 20?

[20]

Rule 37.13(2)(a) states:

A judge who hears a motion may,

(a)
in a proper case, order that the motion be converted into a
    motion for judgment;

[21]

The motion judge was not asked to, and did not
    exercise the power under rule 37.13(2)(a).  This court can, however, make the
    same order: s. 134(1)(a) of the
Courts of Justice Act
.

[22]

An order in the terms contemplated by rule
    37.13(2)(a) is discretionary and is clearly not one that will be easily or routinely
    granted.  In
CMLQ Investors Company v. CIBC Trust Corporation
(1996), 3
    C.P.C. (4th) 62 (Ont. C.A.), this court affirmed a motion judges exercise of
    the rule 37.13(2)(a) discretion to grant judgment on a motion for a trial of an
    issue.  The motion judge granted a declaratory judgment and directed a trial on
    the question of damages.  In upholding that decision, this court said at para.
    8:

[W]here all of the necessary
    evidence is before the judge on the motion, and where the parties have had full
    opportunity of arguing their positions, as was the case here, there is nothing
    to be gained by either party by adding further proceedings to those already
    taken.

[23]

Counsel for the appellants does not suggest that
    the record before the motion judge did not contain all of the evidence
    necessary to determine whether Rastogi was entitled to summary judgment on the
    issue of his entitlement to the release of the funds held by RBC Direct and TD.
    The record was extensive.  Detailed facta were also filed.

[4]

[24]

Counsel for the appellants also does not suggest
    that RBC did not have a full opportunity to put forward its case on the issue
    of Rastogis entitlement to the funds in the accounts.  As I read counsels
    factum, he invites the court to treat this as if it were a motion for summary
    judgment.  Counsel forcefully argues that on the motion record, Rastogi failed
    to establish that there were no genuine issues requiring a trial in respect of
    his entitlement to those funds.  While counsel for RBC has no difficulty
    treating this as a motion for summary judgment, counsel for Rastogi contends
    that it would be unfair to do so as that would put the onus on Rastogi to show
    that there is no triable issue with respect to his entitlement to the funds.

[25]

I agree with counsel for the appellants that
    Rastogis claim to an entitlement to the funds in his RBC Direct and TD accounts
    can be properly and fairly resolved on this motion.  There is no need for further
    proceedings to make a proper determination on that issue.  Nor, given my
    assessment of the merits, is there any prejudice to Rastogi.

VI

Should Summary Judgment be
    Granted on Rastogis Claim to the Funds held by RBC Direct and TD?

[26]

Rastogis claim to the funds in RBC Direct and TD is straightforward.
    The credit in those accounts represents debts owed to him by RBC Direct and
    TD.  He has demanded payment.  Neither RBC Direct nor TD advanced any claim
    against Rastogi, much less a claim that would give rise to any right of set
    off.  Counsel for Rastogi submits that RBC does not, merely by commencing a
    lawsuit in which it claims a right to the funds, acquire any right to
    unilaterally prevent Rastogi from obtaining those funds.  Counsel contends that,
    absent a court order, RBC was not entitled to preemptively interfere with
    Rastogis rights in respect of his accounts at RBC Direct and TD.

[27]

RBCs claim that the funds should not be released to Rastogi rests on
    the assertion that the material filed on the motion demonstrates that RBC has
    an arguable claim to a restitution order with respect to the funds.  RBC
    asserts that its remedy goes beyond damages and that the funds in those
    accounts in fact belong to RBC.  The restitutionary claim is based on either a
    constructive trust flowing from Rastogis breach of his duties to RBC, or on
    RBCs mistaken payment of the funds into Rastogis accounts at RBC.  RBC
    maintains that its arguable restitutionary claim, combined with the
    uncontroverted evidence that some of the proceeds of the currency trading are
    in the accounts in issue, is enough to give RBC a valid interest in those funds
    and create what counsel called a interpleader situation as between RBC and
    Rastogi.

[28]

RBCs position confuses its undenied right to pursue its restitutionary
    claims and any right it has to unilaterally deprive Rastogi of his property
    while RBC pursues its restitutionary claim.  The fact that RBC has an arguable
    case would certainly preclude Rastogi from obtaining summary judgment on RBCs
    restitutionary claim.  The mere fact that RBC has an arguable restitutionary
    claim, however, does not give it any right to interfere with Rastogis property
    pending a determination of the merits of that claim.

[29]

RBCs restitutionary claim comes down to the assertion that the funds in
    Rastogis accounts at RBC Direct and TD belong to RBC and not to Rastogi.  If
    RBC had concerns about the disputed property disappearing before trial, it
    could have sought an interlocutory injunction.  Had RBC chosen to do so,
    however, it would have been required to show more than an arguable case before
    it could obtain an order freezing those accounts.  Under the well-known
    tripartite test in
RJR MacDonald Inc. v. Canada (Attorney General)
,
    [1994] 1 S.C.R. 311, RBC would have been required to show:

·

An arguable case (serious issue to be tried);

·

Irreparable harm if injunctive relief was not granted;

·

The balance of convenience favoured injunctive relief.

[30]

RBC cannot escape the tripartite test for injunctive relief because the
    nature of the property in issue has permitted RBC to unilaterally achieve a
de
    facto
injunction without a court order.  Surely RBC would not argue that it
    was entitled to go into Rastogis garage and unilaterally seize his vehicles
    and hold them until trial if it had an arguable case that the vehicles were
    purchased with the proceeds of the currency trading.  I do not see how RBCs
    legal position is improved because the assets in issue are debts owed to
    Rastogi by another bank and an affiliate of RBC.

[31]

For whatever reason, RBC has not sought an interlocutory injunction in
    the two years since it started this action.  RBC is not entitled to what would
    effectively be an interlocutory injunction merely by showing that its
    allegations, including those related to his restitutionary claims raise
    arguable issues.  On the motion record, Rastogis entitlement to the funds
    vis-à-vis RBC Direct and TD is undeniable.  He is their creditor.  RBCs
    entitlement to the funds is contingent upon RBC establishing the merits of its
    claim.

[32]

Any entitlement RBC has to freeze Rastogis accounts pending trial is
    not improved merely because RBC Direct is a subsidiary of RBC.  RBC accepts
    that the credit in Rastogis RBC Direct accounts constituted a debt owed by RBC
    Direct.  While the relationship between RBC Direct and RBC permitted the latter
    to freeze Rastogis accounts by what counsel for RBC referred to as an
    internal demand, the subsidiary status does not make the debts of RBC Direct
    debts of RBC.  The two are separate corporate entities.  RBC cannot claim any
    right to set off of a debt owed by RBC Direct to Rastogi against a debt owed by
    Rastogi to RBC.

[33]

I also agree with the motion judges interpretation of s. 437(2) of the
Bank
    Act
.  That section gives TD the right to hold the funds in Rastogis
    account that it would otherwise be obligated to pay on demand to Rastogi.  That
    right is triggered by RBCs claim in which it names TD as a defendant.  Section
    437(2) does not give RBC any rights in respect of the funds in Rastogis TD
    account or inhibit the courts power to make orders directing payment of funds
    out of those accounts.

VII

Conclusion

[34]

For the reasons set out above, RBC has offered
    no legal basis upon which either RBC Direct or TD can withhold the funds held
    by them to the credit of Rastogi.  There are no issues requiring a trial in
    respect of Rastogis entitlement to those funds.  Rastogi is entitled to summary
    judgment on his counterclaim to the extent that the claim seeks judgment
    directing the return to him of all funds held in Rastogis accounts at RBC
    Direct.  He is similarly entitled to judgment on the crossclaim to the extent
    that he seeks judgment directing that TD release all funds in Rastogis joint
    account to him.

[35]

All other claims raised in RBCs statement of
    claim and Rastogis defence and counterclaim remain outstanding.  Specifically,
    and contrary to counsel for the appellants contention, this judgment does not
    decide RBCs restitutionary claims.  Those claims may proceed.  If they
    ultimately succeed, RBC may have practical difficulties obtaining an effective
    remedy in respect of the funds that are presently held in the RBC Direct and TD
    accounts.  Those difficulties are, however, no different that the difficulties
    faced by any plaintiff in RBCs position who advances a restitutionary claim
    and does not seek, or does not receive, the necessary interlocutory relief.

[36]

The order of the motion judge dated August 20,
    2010 should be varied to grant judgment in the terms of paragraphs 2 and 3 of
    that order.  The appeal is otherwise dismissed.  Rastogi should have his costs
    of the appeal in the amount of $9,700, inclusive of disbursements and
    applicable taxes.

RELEASED:  DD  JAN 20 2011

Doherty J.A.

I agree David Watt
    J.A.

I agree Gloria Epstein
    J.A.

[1]
There is an indication in the material that TD actually froze the account
    before notice of the action was given; however, after the notice of the claim
    was given, TD relied on s. 437(2).

[2]
Rule 43.01, the interpleader rule, which is often engaged in disputes over bank
    accounts, defines property as meaning personal property and includes a debt.
    Arguably the phrase includes a debt would be unnecessary if a debt was
    otherwise regarded as personal property for the purpose of the rule.

[3]
My interpretation about the nature of the relief sought and the order granted
    on the motion also disposes of counsel for Rastogis argument that as Belobaba J.s
    order was interlocutory this court has no jurisdiction to hear the appeal.

[4]
The motion was commenced by Rastogi before RBC filed its defence to the
    counterclaim.  A summary judgment motion by the plaintiff cannot be served
    until after a defence is delivered: rule 20.01(1).  However, the defence was
    delivered well before the hearing of the motion and I do not understand RBC to
    claim that it is prejudiced by treating the motion as a summary judgment motion
    even though it was served with the motion before the defence to the
    counterclaim was delivered.


CITATION: Simmons v. Hamber, 2011
          ONCA 7

DATE: 20110107

DOCKET: C49924

COURT OF APPEAL FOR ONTARIO

Goudge, Cronk and Armstrong JJ.A.

BETWEEN

Lawrence John Simmons and Anchordale Holdings Limited

Plaintiffs (Appellants)

and

Christian J. Hamber and Harrison Pensa LLP

Defendants (Respondents in Appeal)

C. F. MacKewn, for the appellants

Russell M. Raikes, for the respondents

Heard: September 7, 2010

On appeal from the judgment of
          Justice R. M. Pomerance of the Superior Court of Justice, dated December 15,
          2008.

ARMSTRONG J.A.:

[1]

The appellants appeal the dismissal of their action for solicitors
    negligence.

[2]

Christian Hamber, a partner of the law firm of Harrison Pensa LLP, was
    retained to do the necessary legal work in connection with two commercial
    transactions involving the appellants and the L. J. Simmons Group Ltd. (the
    Simmons Group).  The appellants assert that Mr. Hamber should have recommended
    that they receive independent legal advice and that he should have discussed
    alternatives to the proposed transactions.

[3]

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

BACKGROUND

[4]

John Simmons and his personal holding company, Anchordale Holdings Ltd.,
    were shareholders of the Simmons Group.  The two other shareholders of the
    Simmons Group were Walter Webb and Daniel Van Houtte.

[5]

Anchordale was also shown on the financial statements of the Simmons
    Group as a creditor in the amount of $54,389 (later reduced to $44,389).  There
    was some question as to the origin of this debt.  However, the chartered
    accountant for the Simmons Group testified that he assumed the origin of the
    debt was not one of substance as it was a reflection of excess dividends that
    had been declared but not paid.

[6]

The Simmons Group was engaged in the real estate brokerage and appraisal
    business.

[7]

As a result of the precarious personal financial position of Mr.
    Simmons, he decided to declare personal bankruptcy.  This led to a discussion
    among Messrs. Simmons, Webb and Van Houtte as to the future of the Simmons
    Group.  A decision was made by these three principal shareholders that Mr.
    Simmons and Anchordale would surrender their shares in the Simmons Group.  In
    respect of the Anchordale debt, there had been earlier discussions with the
    Simmons Groups accountant about getting the debt off the books of the company to
    improve its position in obtaining bank financing.  The evidence was that if the
    debt was removed from the books of the company, a note to the financial
    statements, which cast a negative light on the financial position of the
    Simmons Group, could also be removed.  These discussions ultimately led to a
    proposal that the Anchordale debt would be converted to a class of preference
    shares that were not retractable, but redeemable at the option of the
    corporation.

[8]

As a result, Messrs. Simmons, Webb and Van Houtte agreed to proceed with
    the surrender of the shares and the conversion of the debt.  The trustee in
    bankruptcy testified that if neither the shares nor the debt had any economic
    value, they would not be assets, which would be of interest to the bankrupt
    estate.  He testified that he gave that opinion to Mr. Simmons.  Mr. Simmons
    testified that he was content to give up his shares in the Simmons Group
    because he did not want his own financial difficulties to compromise the
    position of the young people in the firm.

[9]

The documentation for the transactions was prepared by Mr. Hamber who
    was the solicitor to the Simmons Group.  He was also the solicitor to
    Anchordale.  Mr. Simmons testified that it was Mr. Webbs responsibility to
    retain and instruct lawyers for anything to do with the affairs of the Simmons
    Group.  Mr. Webb retained Mr. Hamber and his law firm, Harrison Pensa LLP, in
    respect of the transactions.

[10]

The transactions were closed on September 14, 1998 with Messrs. Simmons,
    Webb and Van Houtte at Mr. Hambers law firm.  Mr. Hamber reviewed all of the
    documentation to be signed that day.  He asked if there were any questions and
    there were none.  As the three individuals were about to sign the documents,
    Mr. Simmons, according to Mr. Hamber, asked So, what am I signing?  Both Mr.
    Webb and Mr. Van Houtte, according to Mr. Hamber, expressed some exasperation.
    Mr. Simmons testified that he had simply asked, What are my options? and Mr.
    Van Houtte replied, That will depend on events in the future.  According to
    Mr. Simmons, he received assurances from Mr. Webb that his shares would be
    restored after he was discharged from bankruptcy.  Mr. Webb and Mr. Van Houtte
    both denied that there were any such assurances given.  The trial judge
    concluded that, [t]he overwhelming weight of the evidence compels the
    conclusion that there was never any agreement to restore Simmons position.

[11]

Mr. Hamber testified that after Mr. Simmonss confusion, he asked the
    parties if they needed to discuss matters any further.  Mr. Hamber did not
    recall if and to what extent they discussed matters further, but shortly
    thereafter, he asked if they wanted to proceed with the signing.  They
    indicated that they did.  The documents were signed and Mr. Simmons read each
    document before he signed it.  He testified that he read and understood what it
    was that he signed.

[12]

The trial judge accepted the evidence of Mr. Hamber as to what
    transpired at the meeting.

[13]

On December 4, 1998, Mr. Simmons made a voluntary assignment in
    bankruptcy.  In the statement of affairs signed by Mr. Simmons, at the time of
    his assignment in bankruptcy, he stated that in October 1998, he had
    transferred his shares in the Simmons Group to other shareholders.  He further
    stated those shares had no value and that he received no money in exchange.
    Mr. Simmons did not advise the trustee that upon discharge from bankruptcy, he
    would be restored as a shareholder of the Simmons Group.  There was no
    discussion with the trustee about any restoration of the debt owed to
    Anchordale after his discharge from bankruptcy.

[14]

Some seven years later, after a dispute with Messrs. Webb and Van Houtte
    over appraisal fees, and after Mr. Simmons had been terminated from his
    employment by the Simmons Group, he commenced this action against Mr. Hamber
    and his law firm for solicitors negligence.

[15]

The essence of the claim against Mr. Hamber and his law firm is found in
    paragraph 5 of the Statement of Claim:

Prior to the bankruptcy of the plaintiff Simmons,
    the defendant Hamber organized the legal services necessary in a transaction
    which had the net effect of denuding Simmons of any interest in Simmons Group
    and converting the indebtedness of Simmons Group to Anchordale from a debt
    position to  non-voting, non-participating preference shares which were not
    retractable thereby emasculating the indebtedness apparently owed by Simmons
    Group to Anchordale.  In acting the defendant Hamber and the defendant firm
    acted for all parties involved, Simmons and Anchordale not being independently
    represented and not being fully protected.

[16]

Mr. Hamber was the solicitor of both the Simmons Group and Anchordale
    for at least a couple of years prior to 1998.  All of his instructions related
    to the two companies came from Mr. Webb, whom he understood to be the manager
    of the Simmons Group, and responsible for giving instructions to lawyers and
    accountants.  The accountant for the Simmons Group, Richard Ferris, told Mr.
    Hamber that the Anchordale debt was a bogus debt that had no real substance and
    was causing difficulty for the company in obtaining financing.

[17]

Mr. Hamber was made aware that Mr. Simmons was contemplating a voluntary
    assignment in bankruptcy.  For this reason, he satisfied himself that the
    proposed transactions did not run afoul of the applicable bankruptcy
    legislation and the
Fraudulent Conveyances Act
, R.S.O. 1990, c. F.29.

[18]

Nil value was attributed to the shares of the Simmons Group on the
    advice of Mr. Webb and Mr. Ferris.  This valuation was consistent with previous
    share transactions that Mr. Hamber acted on in 1996.

[19]

Mr. Hamber did not recommend to Mr. Simmons that he seek independent
    legal advice in respect of these transactions.  When asked, Why not? he
    replied:

A.

I didnt think it was necessary.  He struck me as a sophisticated
    business person who had been through previous restructurings as I could see
    from my review of the various minute books.  He seemed to indicate he knew what
    he was signing and it didnt seem necessary.

[20]

In respect of whether Mr. Hamber advised Mr. Simmons that the share
    transaction was necessary, the following exchange took place:

Q.          Did you advise Mr. Simmons that there
    was no need to transfer these common shares because they had no value?

A.          No, the parties had agreed to implement
    the transaction in a certain way, and I saw my role as fulfilling their
    request.

[21]

In respect of Anchordale, Mr. Hamber said that he dealt with Mr. Webb,
    whom he considered the designate of Mr. Simmons.  Mr. Hamber was pressed in
    cross-examination on this issue:

Q.          Did you feel any obligation to advise
    Anchordale as a corporation directly, or Mr. Simmons as the sole controlling
    shareholder directly, that this transaction conceivably could have an adverse
    effect upon them?

A.          That would have been completely
    inconsistent with the pattern with which I was retained by Anchordale.  I was
    instructed through Mr. Webb.

[22]

The trial judge dismissed the action against Mr. Hamber and his law firm
    and in doing so said:

I find that these claims are entirely lacking in
    merit.  Whether or not Hamber owed a duty of care to Simmons and Anchordale, he
    discharged his obligations in a proper, prudent, responsible and highly
    professional manner.  Hamber acted on the instructions that he was given by
    Webb, the representative of the corporation who had the requisite authority.
    Hamber independently confirmed that his instruc-tions were not contrary to the
    law.  He drafted the documents to effect the corporate transactions.  At the
    meeting of September 14, 1998, he took pains to ensure that all present read
    and understood the content and consequences of what was to be signed.  He
    reported in a prompt and responsible fashion to the designated representative
    of the corporation.

Christian Hamber acted throughout with competence
    and professionalism.  While no expert evidence was adduced on the standard of
    care in this context, I am hard pressed to imagine what else Mr. Hamber might
    have done in the proper discharge of his duties.

THE ACTION AGAINST MR. WEBB, MR. VAN HOUTTE, AND THE SIMMONS GROUP

[23]

Mr. Simmons and Anchordale commenced a separate action against Mr. Webb,
    Mr. Van Houtte and the Simmons Group to set aside the transactions.  He
    included a claim for wrongful dismissal.  The action was tried by the same
    trial judge and at the same time as the solicitors negligence action.  The
    trial judge dismissed the claims to set aside the transactions but awarded
    significant damages to Mr. Simmons for wrongful dismissal.

[24]

An appeal in respect of the damages awarded in the wrongful dismissal action
    was taken by the defendants in that action and was heard at the same time as
    this appeal.  The wrongful dismissal appeal resulted in a modest reduction of
    the award of damages.  See
Simmons v. Webb
, 2010 ONCA 584, released
    September 13, 2010.

THIS APPEAL

[25]

This appeal raises the following issues:

(i)

Did
    Mr. Hamber err in failing to recommend that the appellants receive independent
    legal advice?

(ii)

Did Mr.
    Hamber have a duty to discuss with Mr. Simmons and Anchordale alternatives to
    these trans-actions?

(iii)

If Mr. Hamber and his law
    firm breached their duty, is there any evidence of damages?

(i)

Did Mr. Hamber err in failing to recommend that the appellants receive
    independent legal advice?

[26]

The appellants rely on subrule 2.04(3) of the
Rules of Professional
    Conduct
of the Law Society of Upper Canada which provides:

A lawyer shall not act or continue to act in a
    matter when there is or is likely to be a conflicting interest unless, after
    disclosure adequate to make an informed decision, the client or prospective
    client consents.

The commentary to subrule 2.04(3) contains the following
    statement:

While subrule 2.04(3) does not require that a lawyer
    advise the client to obtain independent legal advice about the conflicting
    interest, in some cases, especially those in which the client is not
    sophisticated or is vulnerable, the lawyer should recommend such advice to
    ensure that the clients consent is informed, genuine, and uncoerced.

[27]

The appellants also rely on the judgment of this court in
Davey v.
    Woolley et al
(1982), 35 O.R. (2nd) 599.  The case at bar is very different
    from
Davey
.  In
Davey
, the agreement in question was extremely
    complex and required a high degree of sophisticated legal advice.  The vendor
    and purchaser in
Davey
were both clients of the law firm and a senior
    partner of the firm had a personal interest in the transaction.  It is clear
    that Davey needed independent legal advice on the facts of that case.  Wilson
    J.A., writing for the court in
Davey
at page 602, provided a useful
    statement of the relationship between a solicitor and his/her client:

A solicitor is in a fiduciary relationship to his
    client and must avoid situations where he has or potentially may develop a
    conflict of interest: see
Boardman et al. v. Phipps
, [1967] 2 A.C. 46,
    [1966] 3 All E.R. 721 at 756.  This is not confined to situations where his
    clients interests and his own are in conflict although it of course covers
    that situation.  It also precludes him from acting for two clients adverse in
    interest unless, having been fully informed of the conflict and understanding
    its implications, they have agreed in advance to his doing so.

[28]

I do not take from either subrule 2.04(3) of the
Rules of
    Professional Conduct
or the judgment of this court in
Davey
that in
    the circumstances of this case, there was an obligation on Mr. Hamber to
    recommend to Mr. Simmons that he obtain independent legal advice.  It might
    well have been preferable that he make such a recommendation out of an
    abundance of caution, but his failure to do so in these circumstances does not constitute
    a breach of his fiduciary duty or negligence.

[29]

While Mr. Simmons and Anchordale were giving up their shares in the
    Simmons Group, it was clearly something that Mr. Simmons wanted to do prior to
    his filing for bankruptcy.  Mr. Hamber took his instructions from Mr. Webb (the
    designate of Mr. Simmons), which was consistent with his previous practice.  He
    was made aware of the intention of Mr. Simmons to make an assignment in
    bankruptcy and satisfied himself that the transactions were not in conflict
    with the applicable bankruptcy legislation and the
Fraudulent Conveyances
    Act
.  No issue has been taken either here or below with Mr. Hambers
    conclusions in that regard.

[30]

On their face, the transactions suggest that Mr. Simmons and Anchordale
    were adverse in interest to Messrs. Webb and Van Houtte.  However, the position
    of Mr. Simmons and Anchordale must be viewed in the context presented to Mr.
    Hamber.  Mr. Hamber accepted the advice of Mr. Webb that the shares in the
    Simmons Group had no value.  He accepted the advice of both Mr. Webb and Mr.
    Ferris that the Anchordale debt had no substance.  Mr. Hamber was entitled to
    rely on that information.  There was nothing to suggest to Mr. Hamber that
    either Mr. Simmons or Anchordale were giving up anything of value or that Mr.
    Simmons did not fully appreciate what he was doing.  Indeed, he was of the view
    that Mr. Simmons was a sophisticated businessman who had been through previous
    share restructurings, who wanted these simple transactions to proceed and who understood
    the documents he was signing.

(ii)

Did Mr. Hamber have a duty to discuss with Mr. Simmons and Anchordale
    alternatives to these transactions?

[31]

The appellants submit that Mr. Hamber should have advised them that the
    transactions were unnecessary since the underlying assets had no value.  In
    paragraph 6 of the statement of claim, the appellants alleged:

In the course of the transaction[s], alternative
    steps potentially available to the plaintiffs to restructure the holdings in
    such a way as to transfer the assets to persons in whom they had confidence for
    their protection were neither discussed, canvassed, nor proffered by the
    solicitor as a result of which the solicitor and the law firm failed in their
    duty to the plaintiffs.

[32]

While the submission on appeal changed slightly from the position taken
    in the statement of claim, both positions appear to be rooted in Mr. Simmonss
    claim that there was an agreement to return the assets to him and Anchordale
    after his discharge from bankruptcy.  As indicated above, Mr. Hamber was not
    aware of any such agreement and the trial judge found that there was none.  If
    there had been such an agreement that may well have raised additional legal and
    ethical issues but that was not the case.

[33]

Mr. Hamber did not breach his duty to Mr. Simmons and Anchordale by
    failing to discuss alternatives to these transactions.

(iii)

If Mr. Hamber and his law firm breached their duty, is there any
    evidence of damages?

[34]

The principal relief sought in this appeal is an award of damages in an
    amount to be assessed by way of a reference.

[35]

At the time these transactions were executed, the evidence is that the
    Simmons Group shares had no value and that the Anchordale debt was not one of
    substance.  At the time of trial, there was no evidence led to suggest that the
    situation had changed in respect of any of the underlying assets involved in
    the transactions.

[36]

In my view, therefore, even if it could be said that Mr. Hamber breached
    some duty to Mr. Simmons and Anchordale  a proposition that I reject  the plaintiffs
    have failed to establish a basis upon which the court could order damages.

DISPOSITION

[37]

For the above reasons, I would dismiss the appeal.  I would award the respondents
    their costs of the appeal on a partial indemnity basis fixed in the amount of $12,500
    including disbursements and applicable taxes.

RELEASED:

JAN -7 2011                                              Robert
    P. Armstrong J.A.

STG                                                            I
    agree S. T. Goudge J.A.

I
    agree E. A. Cronk J.A.


CITATION: Starson v. Pearce, 2011 ONCA 37

DATE: 20110117

DOCKET: C50774

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Epstein JJ.A.

BETWEEN

Professor Starson

Applicant (Appellant)

and

Dr. Mark Pearce

Respondent (Respondent)

Meredes Perez, as
amicus curiae

Janice Blackburn, for the respondent

Heard: January 10, 2011

On appeal from the order of Justice
          Gloria R. Klowak of the Superior Court of Justice, dated June 23, 2009.

APPEAL BOOK ENDORSEMENT

[1]

The appeal was peremptory to the appellant.  The appellant chose
    not to appear. Through
amicus
he has advised the court that his decision
    not to appear is a principled one, because the Supreme Court of Canada, he
    says, has already decided the issue.  This is not a reason for his failure
    to appear to pursue the appeal but only an argument in support of his
    position.

[2]

He personally appeared and represented his interests in the hearings at
    first instance.  The appellant has been advised that the
amicus
is
    not his lawyer and that the appeal could be dismissed if he chose not to
    appear.  The respondent submits that having regard to the fact the
    appellant has chosen not to appear and that the appeal is very fact specific it
    should be dismissed.  In all the circumstances the appeal is dismissed as
    an abandoned appeal.


CITATION: United States of
      America v. Sriskandarajah, 2011 ONCA 4

DATE: 20110106

DOCKET: M39543 (C50140/C51419) and M39541 (C50139/C51418)

COURT OF APPEAL FOR ONTARIO

Cronk J.A. (In Chambers)

BETWEEN

DOCKET: M39543
          (C50140/C51419)

The United
          States of America

and

Minister of
          Justice and Attorney General of Canada

Respondents

and

Suresh Sriskandarajah

Applicant

AND BETWEEN

DOCKET: M39541 (C50139/C51418)

The United
          States of America

and

Minister of
          Justice and Attorney General of Canada

Respondents

and

Piratheepan Nadarajah

Applicant

John Norris, for the applicant Suresh Sriskandarajah

Breese Davies, for the applicant Piratheepan Nadarajah

Nancy Dennison, for the respondent

Heard: December 23, 2010

ENDORSEMENT

[1]

The applicants, Suresh Sriskandarajah and Piratheepan Nadarajah, seek
    bail pending their applications for leave to appeal to the Supreme Court of
    Canada from this courts dismissal of their appeals from their committals to
    stand trial on charges in the United States and their applications for judicial
    review of the Minister of Justices decisions to order their surrender to the
    United States: see
R. v. Sriskandarajah
, 2010 ONCA 857 and
R. v.
    Nadarajah
, 2010 ONCA 859 (the December decisions).

[2]

The test for bail pending proceedings in the Supreme Court of Canada is
    governed by s. 679(3) of the
Criminal Code
.  Under that test, a judge of
    this court may grant bail pending an application for leave to appeal to the
    Supreme Court if the applicant establishes three things:

(1)

the application
    for leave to appeal is not frivolous;

(2)

the applicant
    will surrender into custody in accordance with the terms of any release order;
    and

(3)

the applicants
    detention is not necessary in the public interest.

[3]

On these applications, the Crown argues that neither applicant has met
    his onus in respect of any criteria under s. 679(3), especially the public
    interest ground.

(1)       Merits of the Leave to Appeal
    Applications

[4]

As the Crown points out, the applicants do not address in their joint
    factum the merits of their applications for leave to appeal from this courts
    orders dismissing their appeals from the committal and surrender orders.  Instead,
    their submissions as to the merits of their applications for leave to appeal to
    the Supreme Court are focused on their attack  both in the proceedings below
    and before this court  on the constitutionality of the definition of
    terrorist activity set out in s. 83.01 of the anti-terrorism provisions of
    the
Criminal Code
.  On their appeals to this court, the applicants argued
    that the definition of terrorist activity was unconstitutionally overbroad
    and that the definition of that term, and its application throughout the
    anti-terrorism provisions of the
Criminal Code
, had the effect of
    violating the
Charter of Rights and Freedoms
, particularly, the
    protected right of freedom of expression.  This court rejected both arguments,
    holding that the definition of terrorist activity was constitutionally sound.

[5]

The Crown acknowledges that the standard for determining whether an
    application for leave to appeal is frivolous is a low one.  This court has held
    that an appeal will not be considered frivolous if an arguable ground of appeal
    is raised: see for example,
R. v. Huang
(1996), 50 C.R. (4th) 292.  This
    principle also applies to applications for bail pending leave to appeal to the
    Supreme Court.  As Doherty J.A. explained in
France (Republic) v. Ouzghar
(2009), 95 O.R. (3d) 187 (C.A.), at para. 13:

Where the applicant has met the substantive
    considerations relating to bail by demonstrating that he is not a flight risk
    and that the public interest does not require his incarceration, recognition of
    the legitimate liberty interests at stake justifies setting a low bar when
    determining whether the applicant has shown that his application for leave to
    appeal is not frivolous.  I do not think that an applicant who has shown
    himself otherwise entitled to bail should be held in custody based on my
    speculative and somewhat uninformed assessment of the likelihood of the
    applicant obtaining leave to appeal.

[6]

The allegations against the applicants and the evidence in support of
    those allegations are described in the December decisions and need not be
    repeated.  This courts reasons for rejecting the applicants constitutional
    challenge are also set out in detail in the December decisions.  Similarly, I
    see no need to recount those reasons for the purpose of the disposition of
    these applications.

[7]

Suffice to say that I accept the applicants contention that their
    attack on the constitutionality of the definition of terrorist activity in
    the
Code
, at least as it relates to s. 2(b) of the
Charter
, raises
    an arguable issue of law.  I did not understand the Crown to vigorously
    disagree.  I am satisfied that the applicants have met the low bar of demonstrating
    that their applications for leave to appeal are not frivolous.

(2)       Alleged Flight Risks

[8]

I turn next to the Crowns contention that the applicants pose
    significant flight risks.

[9]

It is true, as the Crown submits, that the incentive to flee increases
    at each stage of the extradition process and that the applicants are nearing
    the end of that process.  It is also true that the applicants face significant jail
    terms in the United States should they be extradited to and convicted in that
    jurisdiction.  (Counsel advised that in Mr. Nadarajahs case, a mandatory
    minimum sentence of 25 years imprisonment applies, while Mr. Sriskandarajah, if
    convicted, could face a sentence of up to 20 years imprisonment.)

[10]

However, the applicants have faced that jeopardy since the beginning of
    the extradition process.  They have continued to surrender into custody as
    required at each stage of that process.  They have each been on bail for
    approximately four years without incident or breach.  Mr. Nadarajah has been on
    bail with $735,000 pledged by his sureties, while Mr. Sriskandarajah has been
    on bail with $445,000 pledged by his sureties.  It is proposed that their
    current sureties, with minor variations and with the same security, will
    continue.

[11]

It is also noteworthy that, in contrast to the facts in some of the
    cases relied on by the Crown in support of its position that the applicants
    pose a flight risk, there is no evidence before me that either applicant has a
    history of international or cross-border travel or mobility.  There is no
    evidence before me to suggest that either applicant has the will, or for that
    matter, the means, to flee.

[12]

Perhaps more importantly, neither applicant can be surrendered until his
    pending application for leave to appeal to the Supreme Court has been
    determined.  Each applicant reaches the end of the road only when all appeal
    routes are exhausted.  That has not yet occurred.

[13]

Therefore, I am satisfied that the flight risk criterion does not compel
    the denial of bail.

(3)       Detention in the Public Interest

[14]

Finally, the Crown argues that the applicants have failed to demonstrate
    that their continued detention is not required in the public interest.  The
    Crown urges the court to consider the factors contemplated by s. 515(10)(c) of
    the
Criminal Code
(the strength of the case against the applicants, the
    gravity of their alleged offences, the circumstances surrounding the commission
    of the offences, and the fact that they are liable on conviction for lengthy
    terms of imprisonment) to conclude that bail should be denied in the public
    interest in order to maintain public confidence in the administration of
    justice.

[15]

It is unnecessary for the disposition of these applications to determine
    the precise interplay, if any, between ss. 679(3) and 515(10)(c) of the
Criminal
    Code
.  In any event, I regard the factors enunciated by the Crown as
    relevant to the public interest criterion.

[16]

The crimes alleged against the applicants are grave and the
    circumstances surrounding their alleged commission are very serious.  Further, in
    my view, the cases against the applicants are strong.  Moreover, as I have
    said, the applicants face significant terms of imprisonment should they be
    convicted in the United States of the crimes alleged.  But the applicants have
    not yet been convicted of any crime.  Nor has any sentence been imposed on
    them.  The presumption of innocence therefore remains fully engaged.

[17]

Further, there is nothing on this record to suggest that either
    applicant, if released on bail, will commit crimes in Canada or elsewhere.
    They have not done so during the four years that they have each been on bail.

[18]

To repeat, I do not regard either applicant as a materially greater
    flight risk than they were prior to this courts release of the December decisions.
    And, their leave to appeal applications cannot be said to be frivolous, in the
    sense of lacking any merit.

[19]

Finally, the nature of the crimes alleged against the applicants, while
    very serious, cannot, by itself, justify the denial of bail: see
R. v. LaFramboise
(2005), 203 C.C.C. (3d) 492 (Ont. C.A.), para. 31.  I again emphasize that those
    crimes have yet to be proved.

[20]

In all these circumstances, I conclude that the public interest
    considered in the context of these extradition cases is not served by
    incarcerating the applicants when their incarceration pending the disposition
    of their leave applications is not necessary to facilitate their surrender to
    the United States: see
Ouzghar
, at para. 12.

[21]

Accordingly, both bail applications are granted on the terms agreed to
    by counsel.

E.A. Cronk J.A.


CITATION: 433583 Ontario Limited v. Metropolitan Toronto
      Condominium Corporation No. 935, 2011 ONCA 156

DATE: 20110228

DOCKET: C49018

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Rosenberg and Goudge JJ.A.

BETWEEN

433583 Ontario Limited

Applicant (Respondent in Appeal)

and

Metropolitan Toronto Condominium Corporation No. 935

Respondent (appellant)

Blaine Fedson, for the appellant

Jack Copelovici, for the respondent

Heard and endorsed: February 24, 2011

On appeal from the judgment of Justice Peter Jarvis of the
          Superior court of Justice, dated May 28, 2008.

APPEAL BOOK ENDORSEMENT

[1]

The appeal is dismissed. We agree with the reasons of Jarvis J. To deal
    with the issues raised by the appellant, we are satisfied that there was an
    evidentiary basis for finding that all the conditions for proprietary estoppel
    were made out. In particular, a review of the record establishes that the unconscionability
    requirement was made out having regard to the course of dealings involving the
    respondents predecessor in title.

[2]

As to the
Planning Act
, R.S.O. 1990, c. P.13, we are satisfied
    that s. 50(14) of that Act is a complete answer, assuming without deciding,
    that the
Planning Act
applies to an easement created by court order.

[3]

Finally it appears that the parties have not been able to agree on the
    terms and conditions of the easement.  Counsel for the respondent stated before
    us that the respondent was prepared to abide by the terms and conditions in the
    1987 Agreement with the addition of a condition that the easement not be used
    by construction equipment. If there is any lack of clarity in the 1987 terms
    and conditions as amended by these reasons concerning construction equipment,
    that matter is remitted to the application judge.

[4]

Accordingly, the appeal is dismissed with costs fixed at $10,000
    inclusive of disbursements and applicable taxes.


CITATION:
Abdikarim
(RE), 2011 ONCA 103

DATE: 20110207

DOCKET: C52401

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Abdikarim

Appellant

Mohamed Abdikarim, in person

Paul Burstein,
Amicus
          Curiae

James P. Thomson, for the Centre for Addiction and Mental
          Health

Alison Wheeler, for the Crown

Heard: February 1, 2011

On appeal from the disposition of the
          Ontario Review Board, dated May 4, 2010.

ENDORSEMENT

[1]

The appellant, Mohamed Adbikarim, appeals from
    the disposition of the Ontario Review Board dated May 4, 2010, requiring that
    he remain detained in the minimum secure unit of the Centre for Addiction and
    Mental Health (the Hospital) subject to various conditions, including the possibility
    of living in the community in accommodation approved by the Hospital.  The disposition at issue resulted from the
    appellants annual review hearing, coupled with a hearing into restrictions on his
    liberty resulting from his readmission to the Hospital in March 2010.

[2]

The appellant seeks an absolute or conditional
    discharge from the Hospital.  In the
    alternative, he seeks an order remitting his case back to the Board with
    directions for a new hearing.

[3]

The Crown and the Hospital support the continued
    detention of the appellant on the terms ordered by the Board.  The Hospital, supported by the Crown, seeks
    to file fresh evidence concerning the appellants condition and progress in the
    Hospital since the date of the Board hearing.

[4]

The appellant is self-represented.  Mr. Paul Burstein was appointed as
amicus curiae
for the purpose of this
    appeal.  Like the appellant, Mr. Burstein
    argues that the disposition should be set aside and a new hearing ordered.  As advanced in oral argument, he submits that
    the Board erred by finding that there was no treatment impasse in this case
    and, further, by failing to impose terms of disposition that require the
    Hospital to do more to explore new housing options for the appellants
    re-integration into the community.  In
    light of the fresh evidence sought to be filed, Mr. Burstein did not pursue the
    other grounds of appeal set out in his factum.

[5]

We conclude that the appeal must be dismissed.

[6]

The Board held that the appellant continues to
    pose a significant threat to the safety of the public.  This finding is not directly challenged on
    this appeal, although we note that the appellant argued that he is fine and
    simply wants to move forward.  In our
    opinion, on the record before the Board, this finding was reasonable.

[7]

The Boards decision to deny a conditional
    discharge was also reasonable and the least onerous and least restrictive
    disposition in all the circumstances.  There
    was unchallenged evidence before the Board that the balancing of the
    appellants liberty interests with containment of risk to public safety requires
    that the appellant function in a structured and controlled environment to
    maintain his mental stability.  It was
    open to the Board to accept this evidence, including the evidence of the
    appellants treating psychiatrist that ongoing structure is important to
    ensure [the appellants] successful transition back into the community.

[8]

We also regard the Boards rejection of the
    notion that a treatment impasse has been reached in this case as reasonable,
    based on the evidence before the Board.

[9]

The record indicates that while suitable
    accommodation in the community has yet to be found for the appellant, the
    Hospital has made repeated efforts to arrange such a placement.  On four separate occasions, after
    consultation with the appellant, the Hospital approved the appellants
    discharge to live with his parents or his mother.  On each occasion difficulties arose
    culminating, on the appellants fourth discharge, with a demonstration by the
    appellant that he was unable to comply with the terms of his at-home release
    plan.  Ultimately, this led to his
    readmission to the Hospital.

[10]

In addition, the appellant has been ambivalent
    regarding his willingness to agree to a supervised community housing
    placement.  On at least two occasions in
    the recent past, he declined to agree to specific supervised community housing
    placements proposed by the Hospital.  More generally, at various times during his hospitalization  including in
    the months prior to the Board hearing  the appellant opposed living in a
    non-familial supervised setting in the community.  The record confirms that several possible
    placements have proved impossible due either to long waiting lists or the
    appellants lack of co-operation or ambivalence.  However, the Hospital remains committed to
    finding appropriate supervised housing in the community for the appellant.

[11]

In these circumstances, while progress in
    finding suitable accommodation for the appellant has been difficult, it cannot
    be said that an impasse where no progress and no prospect of it has been
    reached.

[12]

In any event, based on the fresh evidence
    tendered by the Hospital, which we conclude meets the requirements for
    admission before this court, the appellants condition has deteriorated
    significantly since his March 2010 readmission to the Hospital.  For example, the appellant appears to have
    suffered at least one manic-like episode following his readmission that
    necessitated his transfer, for a period of time, from a minimum to a medium
    secure unit in the Hospital.  In light of
    the fresh evidence, the appellants continued detention in accordance with the
    Boards disposition remains the least onerous and least restrictive disposition
    for him at the present time.

[13]

We conclude with these observations.  Although, as we have said, the record reveals
    efforts by the Hospital to identify suitable supervised community housing for
    the appellant, it is important that these efforts continue, including those
    that may realistically be undertaken while the appellant is recovering from his
    recent setback, in order to avoid a cycle of continuing detention and
    deterioration in the appellants condition.

[14]

The fresh evidence reveals that treatment and
    counselling of the appellant has continued since his readmission in an effort
    to stabilize his mental condition with a view to reintegrating him into the
    community.  This, too, should
    continue.

[15]

We would expect that at the appellants next
    annual review hearing, which is likely to be held in the spring of this year,
    evidence of the continuing treatment of the appellant and of counselling to
    equip him for living safely in the community, as well as evidence of his then
    current condition, mental health status and accommodation preferences, will be
    filed with and considered by the Board.

[16]

For the reasons given, the appeal is dismissed.

M.J.
    Moldaver J.A.

E.A.
    Cronk J.A.

S.E.
    Lang J.A.