COURT OF APPEAL FOR ONTARIO

CITATION: Edgeworth v. Shapira, 2021 ONCA
    871

DATE: 20211207

DOCKET: C67654

Doherty,
    Benotto and Huscroft JJ.A.

BETWEEN

Annabelle
    Maritza Edgeworth

Plaintiff (Appellant)

and

Karyn Shapira, Brian Levine, Northbridge
    General Insurance
Corporation and Andrew Evangelista

Defendants (Respondents)

Rocco Galati, for
Annabelle Maritza Edgeworth

Thomas M. Slahta, for Karyn Shapira and
    Andrew Evangelista

Todd J. Burke, for Brian Levine

David Zuber and David J. Olevson, for
    Northbridge Insurance Corporation

Heard: December 3, 2021

On
    appeal from the order of Justice Lorne Sossin of the Superior Court of Justice,
    dated October 11, 2019, with reasons reported at 2019 ONSC 5792.

REASONS FOR DECISION

[1]

Annabelle Maritza Edgeworth appeals an order
    which dismissed most of the claims in her action.

[2]

Having been injured in a bicycle accident, Ms.
    Edgeworth retained Campisi LLP to commence an action against a person who was
    insured by the respondent Northbridge General Insurance. Northbridge retained
    Karyn Shapira, of Evangelista Barristers and Solicitors, to defend the action.

[3]

On October 3, 2016, Ms. Edgeworth made an offer
    to settle. In January 2017, Brian Levine was retained to conduct a defence
    medical assessment. The assessment was completed in April 2017. No medical
    report was ever delivered. On June 7, 2017, Ms. Edgeworths outstanding
    settlement offer was accepted by the defence and the action was formally
    dismissed on October 12, 2017.

[4]

Two years later Ms. Edgeworth brought this
    action alleging that the respondents Ms. Shapira, Dr. Levine, Northbridge and
    Andrew Evangelista conspired to suppress Dr. Levines expert report. She sought
    damages for unlawful means conspiracy, intrusion on seclusion, conspiracy to
    injure, and misrepresentation. Campisi LLP represented her.

[5]

The respondents moved to strike the pleadings
    against them under rr. 21 and 25 of the
Rules of Civil Procedure
and
    to have Campisi LLP removed as solicitor of record.

[6]

The motion judge granted the motions as
    follows:

1.

The action was dismissed entirely against
Dr.
    Levine, Northbridge and Andrew Evangelista.

2.

The
    claims against Ms. Shapira were dismissed, except for the misrepresentation
    claim.

3.

Campisi
    LLP was removed as solicitor of record.

[7]

On appeal, Ms. Edgeworth submits that the motion
    judge:

(i)

erred in striking the claims for conspiracy and
    intrusion on seclusion;

(ii)

applied the wrong test on a motion to strike;

(iii)

disregarded the facts alleged in the pleadings; and

(iv)

erred in removing Campisi LLP from the record.

[8]

We do not accept the appellants submissions.

[9]

The appellant relies on a failure to comply with
    r. 33.06 to ground the unlawful means component conspiracy. That rule  limited
    to a medical report consented to in writing or ordered by the court  requires
    that the examining health practitioner prepare a written report of any
    examination and share it with the parties. The motion judge held that this was
    not the kind of wrongful act envisioned in the jurisprudence dealing with
    unlawful means conspiracy: see
Agribrands Purina Canada Inc. v. Kasamekas
    et al.
, 2011 ONCA 460, 334 D.L.R. (4th) 714 and
Beaird v.
Westinghouse
(
1999), 43 O.R. (3d)
    581 (C.A.). The motion judge also rejected the argument that a failure to
    comply with the rules constituted the crime of obstructing justice under
    the
Criminal Code
, R.S.C.
    1985, c. C-46
, and thus was actionable.

[10]

With respect to the claim of intrusion upon
    seclusion, the motion judge held that the appellant had submitted to the
    medical examination requested by the defence willingly and with justification,
    in the context of her own personal injury claim. Therefore, the tort was not
    made out.

[11]

Finally, the motion judge held that even if the
    causes of action were established, the appellant would have the insurmountable
    barrier of establishing damages. The damages in this case were the result of
    her choice, with the advice of counsel, to finalize the settlement even though
    she knew that a written medical report had not been completed.

[12]

The motion judge reviewed each of the
    appellants causes of action, considered the facts pleaded and found that it
    was plain and obvious that they could not succeed. He correctly identified the
    essential elements of each cause of action, considered the facts and applied
    the correct test under the rules.

[13]

Nor did the motion judge err in removing
Campisi LLP as
    solicitor of record. The misrepresentation claim turns on what was said between
    Campisi and Ms. Shapira. As the motion judge said at para. 91, it is hard to
    imagine a scenario where he would not be required to testify. There is an
    obvious conflict requiring that he be removed from the record.

[14]

The
    appeal is dismissed. As agreed, costs are payable to the respondents in the
    global amount of $15,000 inclusive of disbursements and HST.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ojaghi (Re), 2021 ONCA 867

DATE: 20211207

DOCKET: C69206

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

IN THE MATTER OF: Mirbabak Ojaghi

AN APPEAL UNDER PART XX.1 OF THE
CODE

Mirbabak Ojaghi, acting in person

Paul Socka and Erin Dann, appearing as
amicus
    curiae

Heather
    Fregeau, for the respondent, the Attorney General of Ontario

Leisha
    Senko, for the respondent, the Person in Charge of the Centre for Addiction and
    Mental Health

Heard : November 26, 2021

On appeal from the disposition of the
    Ontario Review Board, dated February 11, 2021, with reasons dated March 8,
    2021.

REASONS FOR DECISION

[1]

Mr. Ojaghi appeals against the disposition of
    the Ontario Review Board (the Board), dated February 11, 2021, ordering that
    he be detained at the General Forensic Unit of the Centre for Addiction and
    Mental Health (CAMH). He asserts that the detention order was unreasonable
    and that this court should set it aside and order a conditional discharge.

[2]

Through
amicus
, Mr. Ojaghi also submits
    that the Board erred in removing a provision from his previous disposition,
    which permitted him to obtain passes for accompanied travel out of Ontario for
    up to two months, with the itinerary and the person travelling with him being
    approved by the person in charge.

[3]

For the reasons that follow, we conclude that
    the Boards order was reasonable and dismiss the first ground. With respect to
    the second ground, we find that the Board breached its duty of procedural
    fairness to Mr. Ojaghi and reinstate the provision.

[4]

The facts can be briefly stated. Mr. Ojaghis
    current diagnosis is schizophrenia. He was found not criminally responsible on
    account of a mental disorder in relation to a charge of assault causing bodily
    harm in May 2019. He was released on bail and came under the jurisdiction of
    the Board in November 2019. He was subject to a detention order until being
    conditionally discharged on November 30, 2020.

[5]

Sometime in January 2021, Mr. Ojaghi stopped
    taking his medication and began to decompensate. He was readmitted to CAMH
    under the committal provisions of the
Mental Health Act
. An early
    review hearing was held, resulting in the detention order currently under
    appeal.

[6]

At the disposition hearing, the Board heard
    evidence from Mr. Ojaghis outpatient psychiatrist, Dr. Benassi. Dr. Benassi
    explained that in January 2021, while Mr. Ojaghi was under the conditional
    discharge, his sister called the hospital expressing concern that he had not
    been complying with medication requirements and noting some change in his
    behaviour. A member of the clinical team saw Mr. Ojaghi a few days later and
    noticed indicia of paranoia. Drug screens revealed that he had not been taking
    his medication. A caseworker who visited Mr. Ojaghi became fearful as he was
    quite irate. The hospital requested that police bring Mr. Ojaghi to the
    hospital and he was readmitted pursuant to the
Mental Health Act
. Once
    in the hospital, Mr. Ojaghi was started on an injectable medication.

[7]

Dr. Benassi was concerned about Mr. Ojaghis
    lack of insight into his condition and concluded that without a detention
    order, it was unlikely he would take his medication. He suggested Mr. Ojaghi be
    detained at the General Forensic Unit at CAMH which has more patient privileges
    and a lower staff-to-patient ratio than the more secure unit. No other evidence
    was called by the hospital. The Crown did not call any evidence. Mr. Ojaghis
    sister advised that he could continue to live with her and her family.

[8]

At the hearing that resulted in the disposition at
    issue, it was not contested that Mr. Ojaghi remained a significant threat to
    public safety and the hospital sought a detention order on that basis. The
    Crown supported the hospitals recommendation. Mr. Ojaghis counsel accepted
    that he was a threat to public safety, but argued for the continuation of a
    conditional discharge under the terms set out in the November 30, 2020
    disposition. The Board ultimately issued a detention order, requiring Mr.
    Ojaghi to remain at the General Forensic Unit at CAMH.

[9]

The Board accepted that Mr. Ojaghi remained a
    significant threat to public safety. It concluded that a detention order was
    both necessary and appropriate as public safety would be compromised with any
    other disposition. In this case, it was fortunate that the hospital was able to
    obtain the cooperation of the police in returning Mr. Ojaghi to the hospital,
    but the hospital should not have to rely on the police to do so when a patient
    becomes non-compliant with their medication and significantly destabilizes.

[10]

The Board accepted Dr. Benassis evidence that
    public safety required that Mr. Ojaghi be returned to the hospital at the
    earliest sign of any destabilization. The necessary and appropriate way to do
    so was pursuant to a detention order, which includes a warrant of committal,
    ensuring his timely and efficient return to hospital. Dr. Benassi also
    testified that a detention order with a community living privilege would allow
    the hospital to approve appropriate housing in the community.

[11]

Mr. Ojaghi submits, through
amicus
,
    that any risks could be effectively managed through a conditional discharge.
    The mechanisms of the
Mental Health Act
were part of the ecosystem
    of the Board. They were sufficient to manage the risk when Mr. Ojaghi was
    returned to the hospital in January 2021 and they are appropriate now. A
    conditional discharge was the least onerous and least restrictive disposition
    consistent with public safety and the detention order made by the Board was
    unreasonable.

[12]

We do not accept this submission. The standard
    of review is set out in s. 672.78(1) of the
Criminal Code
, R.S.C.,
    1985, c. C-46. We can only allow an appeal and set aside an order where we are
    of the opinion that (a) it is unreasonable or cannot be supported by the
    evidence; (b) it is wrong on a question of law; or (c) there was a miscarriage
    of justice. Deference is owed to the Board as an expert and specialized
    tribunal and we should not interfere as long as the decision falls within a range
    of reasonable alternatives:
R. v. Owen
, 2003 SCC 33, 1 S.C.R. 779, at
    paras. 31-33, 37;
Canada (Minister of Citizenship and Immigration) v.
    Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 34, 37, 75, 81, 83-85,
    92-93, 99.

[13]

The Boards decision was reasonable. There was
    no dispute on the issue of significant threat. Mr. Ojaghi had been returned to
    the hospital because he had decompensated after he stopped taking his
    medication. Dr. Benassi emphasized the need to promptly return him to hospital
    for treatment if he began to show signs of decompensation. Dr. Benassi
    testified that a detention order was necessary for this purpose and that the
    mechanisms of the
Mental Health Act
could not assure a timely return.
    The Board was entitled to accept this evidence. We therefore dismiss this
    ground of appeal.

[14]

The issue of the travel provision was raised by
    a panel member following Dr. Benassis evidence, and the psychiatrist indicated
    that he was content that the condition remain in place. The issue was raised
    again during submissions and Dr. Benassi again stated that he was content with
    the condition and that he would not approve a travel itinerary unless he was
    satisfied that Mr. Ojaghi was stable on his medication and that there was a
    specific travel plan in place. Neither the Crown nor the hospital made any
    submissions on the issue.

[15]

The Boards reasons did not address the issue.
    The Boards disposition did not include the travel provision, which had been
    part of the previous disposition.

[16]

In our view, in the circumstances of this case,
    including Dr. Benassis support for the provision, if the Board was considering
    revoking the provision, it had a duty to put Mr. Ojaghi on notice that the
    travel provision was at issue and to invite submissions. This falls within the
    Boards duty to provide a fair hearing because its decisions affect the
    accuseds rights, privileges, and liberties:
Osawe (Re)
, 2015 ONCA 280,
    125 O.R. (3d) 428, at para. 35.

[17]

Given the state of the record, and the absence
    of reasons for the Boards decision on the travel provision, we cannot conclude
    with any certainty whether the removal of the provision was intentional or an
    oversight. The reasons are therefore not susceptible to appellate review, and
    we set aside the decision on that issue.

[18]

We therefore reinstate the travel provision and
    allow the appeal to that extent. In so doing, we acknowledge that the issue may
    be reconsidered at Mr. Ojaghis next review, scheduled for February 2, 2022.

G.R.
    Strathy C.J.O.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Codina v. Grand Valley Institution
    for Women, 2021 ONCA 877

DATE: 20211208

DOCKET: C69924

MacPherson, Coroza and Sossin
    JJ.A.

BETWEEN

Angelina Codina

Applicant (Appellant)

and

Grand Valley Institution for
    Women

Respondent (Respondent)

Angelina Codina, acting in person

Ian B. Kasper, appearing as duty
    counsel

Shain Widdifield and James Stuckey, for
    the respondent

Heard and released orally: December
    7, 2021

On appeal from
    the judgment of Justice Michael R. Gibson of the Superior Court of Justice,
    dated September 17, 2021, with reasons reported at 2021 ONSC 6164.

REASONS FOR DECISION

[1]

The appellant was convicted of four counts of providing advice or
    representation contrary to s. 91(1) of the
Immigration and
    Refugee Protection Act
, 2001, c. 27 and one count of knowingly
    counselling a person to make a misrepresentation in relation to the
    administration of the
IRPA
, contrary to s.
    126.

[2]

The appellant is a disbarred lawyer and is not a licensed
    immigration consultant under the
IRPA
.

[3]

The appellant is currently incarcerated at Grand Valley
    Institution pursuant to a warrant of committal issued by Molloy J. of the
    Superior Court on May 29, 2018.

[4]

The appellant appealed her conviction; the appeal was dismissed
    by this court:
R. v. Codina
, 2020 ONCA 848.
    The appellant appealed her sentence; the appeal was dismissed:
R. v. Codina
, 2019 ONCA 986.

[5]

The appellant applied for a writ of
habeas
    corpus
challenging the validity of the warrant of committal. The
    application was dismissed by Gibson J.:
Codina v. Grand
    Valley Institution for Women
, 2021 ONSC 6164. The application judge
    said, at paras. 20, 21, 25 and 26:

Ms. Codina has unsuccessfully tried the
    arguments in her present application multiple times before this Court and the
    Court of Appeal. The basis for her arguments is identical or essentially the
    same. In this application, she has sought to recast them in a slightly
    different guise.

I agree with the submission of the Respondent
    that in the present
habeas corpus
application, Ms. Codina offers only
    the veneer of new argument.

In accordance with s.782, [of the
Criminal
    Code
], Ms. Codinas warrant of committal alleges that she was convicted,
    and there is a valid conviction to sustain the warrant, as has been determined
    by the Court of Appeal.

I am satisfied that the application does not
    show a substantial ground for the order sought, that the application is
    frivolous, vexatious and constitutes an abuse of the courts process, and that
    it can be determined without a full hearing.

[6]

The appellant appeals from the application
    judges decision.

[7]

We see no merit in the appellants appeal. We
    specifically endorse the application judges analysis and conclusion. That
    conclusion is, in a word, obvious.

[8]

The appeal is dismissed.

J.C.
    MacPherson J.A.

S.
    Coroza J.A.

Sossin
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: London District Catholic School Board v. Michail,
    2021 ONCA 882

DATE: 20211208

DOCKET: M52903 (C68942)

Simmons, Roberts and Trotter JJ.A.

BETWEEN

London District
    Catholic School Board

Applicant/Responding
    Party

(Respondent/Responding
    Party)

and

Myriam Michail

Respondent/Moving Party

(Appellant/Moving
    Party)

Myriam Michail, acting in person

Liam Ledgerwood, for the responding party London
    District Catholic School Board

Ryan Cookson, for the intervener Attorney General of
    Ontario

Heard and released orally: December 7, 2021

REASONS FOR DECISION

[1]

The appellant moves to review a case management order which required
    that her motion challenging the constitutionality of s. 136 of the
Courts
    of Justice Act
be treated as a motion for leave to introduce a new issue
    on appeal and be heard with her appeal and that her appeal be perfected within
    30 days.

[2]

The motion judge constituted himself as a case management judge to
    address how to deal with the procedural issues regarding the motion. He was
    entitled to do so and did not exceed jurisdiction in doing so.

[3]

We see no basis on which to interfere with the motion judges exercise
    of discretion. The appellant is concerned that without the remedy available to
    her via her motion, she will be precluded from having access to audio
    recordings or transcripts of the proceeding below. We reject that submission.

[4]

The appellant has other remedies to obtain such relief apart from a
    constitutional challenge. She has not availed herself of those remedies. The
    constitutional challenge is properly dealt with on the appeal. This review
    motion is dismissed.

[5]

Costs of the review motion will be to the responding party the London
    District Catholic School Board on a partial indemnity scale fixed in the amount
    of $1,000, inclusive of disbursements and applicable taxes in the cause of the
    appeal.

Janet Simmons J.A.

L.B. Roberts J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leroux-Blake, 2021 ONCA 868

DATE: 20211208

DOCKET: C62717

Fairburn A.C.J.O., Feldman and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carole Leroux-Blake

Appellant

Carter Martell, for the appellant

Lisa Mathews and Ildikó Erdei, for the
    respondent

Heard: in writing

On appeal from the conviction entered on
    June 9, 2016 by Justice Patricia C. Hennessy of the Superior Court of Justice,
    sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals from her conviction for
    possession of cocaine for the purpose of trafficking. The cocaine was found in
    a trailer that belonged to the appellant and her co-accused, her former husband.
    Each maintained their innocence.

[2]

The appellants main ground of appeal is an ineffective
    assistance of counsel claim arising from a conflict of interest.

[3]

Trial counsel originally represented the appellants
    co-accused, including at his preliminary inquiry. The Crown withdrew the charges
    against the co-accused at that proceeding. This was done in exchange for a
    statutory declaration from the co-accused that he had no knowledge of the fact
    that there were drugs in the trailer.

[4]

While the record is unclear as to when the
    appellant officially retained the same trial counsel, by the time that her
    trial commenced in the Superior Court of Justice, that counsel was clearly on
    the record and representing her.

[5]

The appellant denied that the drugs were hers
    and told counsel that she wanted to plead not guilty. Trial counsel accepts
    that she told him this.

[6]

Trial counsels view was that the case against
    her was strong because of what he perceived to be an inculpatory utterance she
    had made at the time of arrest. Yet the appellant denied that she made that utterance.
    Trial counsel accepts that he never asked the Crown whether the Crown intended
    to use the utterance in the prosecution case. He also accepts that he never interviewed
    the appellant, just in case she admitted knowledge and control to him, which he
    believed would limit the defence he could run at trial.

[7]

Despite all of this, trial counsel determined
    that the appellant had no substantive defence and that the case could only be
    won by challenging the search warrant that had been executed on the trailer,
    resulting in the discovery of the cocaine. His view was that the success of any
    such application would be determinative of the case. Therefore, without
    explaining matters to the appellant, counsel made an agreement with the trial Crown
    that, in exchange for consent to cross-examine the affiant on a
Garofoli
application,
[1]
he would concede that the search warrant challenge would be determinative of
    the trial. The trial judge was advised that this was the defence position.

[8]

Importantly, the fresh evidence shows that the trial
    Crown did not raise the conflict issue because he believed, based on trial counsels
    position, that possession of the drugs was not at issue. In the trial Crowns
    view, the only live issue at trial would be the viability of the search
    warrant. The trial Crown acknowledges in the fresh evidence that, had the
    matter gone to trial, the Crown would have had to call the appellants former co-accused
    as a prosecution witness to deny that he had knowledge and control over the cocaine,
    because the only people with control over the trailer in which the cocaine was
    found were the appellant and her co-accused. This would have given rise to a
    clear conflict of interest because their interests were immediately and
    directly adverse to one another; any substantive defence put forward on behalf
    of the appellant would necessarily implicate the appellants former co-accused,
    to whom trial counsel still owed a duty of loyalty:
R. v. Baharloo
,
    2017 ONCA 362, 348 C.C.C. (3d) 64, at para. 34. Had the appellants former
    co-accused testified, her trial counsel would have had to cross-examine him,
    bringing this conflict into stark relief.

[9]

As acknowledged by the respondent, it is clear
    that the appellants interests were directly adverse to her former co-accuseds
    interests. The miscarriage of justice arising from the conflict of interest is
    exposed to light when one considers how the matter unfolded.

[10]

When the
Garofoli
application was
    dismissed, despite having been told by the appellant that she did not want to
    plead guilty, and without consulting her, trial counsel proceeded with a
nolo
    contendere
procedure where an agreed statement of facts was presented to
    the court that resulted in a finding of guilt, without a guilty plea being
    entered.
[2]
For all intents and purposes, it was a guilty plea.

[11]

The manner in which counsel proceeded by way of
    an agreed statement of facts rendered the verdict unreliable and a miscarriage
    of justice has resulted.

[12]

We therefore accept the respondents concession
    that this appeal must be allowed and the appellants conviction set aside. The
    respondent has clearly stated that the appellant will not be re-prosecuted. In
    these circumstances, a new trial is ordered, and the respondent will
    undoubtedly take the appropriate steps to bring the matter to a conclusion
    without a trial.

[13]

Given the
    respondents position, the appellant is not required to surrender in accordance
    with her bail condition.

Fairburn A.C.J.O.

K. Feldman J.A.

A. Harvison Young J.A.

[1]

R. v. Garofoli
, [1990] 2 S.C.R. 1421.

[2]
The trial judge relied upon counsels representations and did not
    question the appellant as to whether she agreed to proceeding in this fashion.


COURT OF APPEAL FOR ONTARIO

CITATION:

Herold Estate v. Canada
    (Attorney General), 2021 ONCA
883

DATE: 20211209

DOCKET:
C68393 &
    C68467

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

DOCKET: C68393

The Estate of William Albin Herold, deceased

Applicant (Respondent)

and

Attorney General of Canada
,
Curve Lake First Nation, Hiawatha First Nation and
Mississaugas of Scugog Island First Nation

Respondents (
Respondent
/
Appellants
)

AND BETWEEN

DOCKET: C68467

The Estate of William Albin Herold, deceased

Applicant (Respondent)

and

Attorney General of Canada
,
Curve Lake
    First Nation, Hiawatha First Nation and
Mississaugas of Scugog Island First Nation

Respondent (
Appellant
/
Respondents
)

Robert Janes, Candice S. Metallic, and
    Aubrey Charette, for the appellants (C68393)/respondents (C68467) Curve Lake
    First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First
    Nation

Daniel E. Luxat, for the appellant
    (C68467)/respondent (C68393) Attorney General of Canada

D. Jared Brown, for the respondent
    (C68393/C68467) Estate of William Albin Herold

Heard: March 2, 2021 by video conference

On appeal from the order of Justice Clyde
    Smith of the Superior Court of Justice, dated February 28, 2020, with reasons
    reported at 2020 ONSC 1202.

COSTS ENDORSEMENT

[1]

By reasons dated August 24, 2021, we allowed the
    appeals and set aside the orders of the application judge:
Herold Estate v. Canada (Attorney General)
,
2021 ONCA 579, 461 D.L.R. (4th) 683.

[2]

In our reasons, we awarded costs of the appeals to
    the appellants in the total sum of $43,000, divided equally between the
    appellant First Nations and the appellant Attorney General of Canada. We did
    not address the costs of the proceedings below.

[3]

In correspondence dated December 3, 2021, counsel
    have advised that the parties had reached certain agreements relating to costs,
    reflected in a letter to the court dated March 11, 2021. That letter did not
    previously come to the panels attention.

[4]

In accordance with the agreement reflected in the
    March 11, 2021 letter, we fix the costs below at $154,530.76. The letter states
    that the appellant First Nations seek those costs if successful on the appeal,
    and given their success, those costs are awarded to the First Nations. The
    appellant Attorney General of Canada does not seek costs in the court below.

[5]

The March 11, 2021 letter also provides that the
    parties agree that $43,000 is the appropriate amount for costs of the appeal,
    but that no costs are sought on the appeal by the Attorney General of Canada.
    We interpret the letter to mean that the amount is appropriate for the
    successful party or parties on the appeal who are seeking costs. We therefore
    vary the costs award of the appeal so that $43,000 inclusive of disbursements
    and applicable taxes is awarded to the appellant First Nations, and no costs
    are awarded to the Attorney General of Canada.

Fairburn
    A.C.J.O.

B.W.
    Miller J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Murphy v. Mullen, 2021 ONCA 872

DATE: 20211209

DOCKET: C68513

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Judith Ann Murphy and Jason
    Andrew Murphy

Plaintiffs (Respondents)

and

Timothy Mullen and T.S. Mullen
    Farms Ltd.

Defendants (Appellants)

Larry M. Najjar, for the appellants

Nour Jomaa, for the respondents

Heard: September 20, 2021 by video conference

On appeal from the judgment of Justice Pamela
    L. Hebner of the Superior Court of Justice, dated February 26, 2020, with
    reasons at 2020 ONSC 1261.

Hoy J.A.:

A.

Introduction

[1]

The trial judge granted summary judgment in favour of Judith Ann Murphy
[1]
,
    holding that the appellants, Timothy Mullen and T.S. Mullen Farms Ltd.,
    trespassed on the Murphy property. The trial judge also scheduled a hearing on
    the issue of damages. Following that hearing, the trial judge ordered the
    appellants to pay Ms. Murphy $213,471.27 as damages for trespass.

[2]

The appellants do not contest liability but do challenge the quantum of
    damages ordered on multiple bases.

[3]

This court is not entitled to interfere with the trial judges damages
    award unless it is shown that she erred in law, she misapprehended the
    evidence, there was no evidence on which she could have reached her conclusion,
    she failed to consider relevant factors in the assessment of damages or
    considered irrelevant factors, or she otherwise, in the result, made a palpably
    incorrect or wholly erroneous assessment of damages:
Naylor Group Inc. v.
    Ellis-Don Construction Ltd.
, 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80;
Michel v. Spirit Financial Inc.
, 2020 ONCA 398, 151 O.R. (3d) 583.

[4]

I am not persuaded that there is any basis for this court to interfere
    with the trial judges damages award, and so I would dismiss this appeal.

[5]

Below, I first provide some background as to the facts and the trial
    judges damages assessment. Then I outline and address what I would
    characterize as the essentially 12 arguments the appellants raise on appeal,
    which I organize in my discussion into four categories: (1) foreseeability-related
    arguments; (2) other arguments related to Ms. Murphys intention to build a
    house on her property and her affinity for trees; (3) drainage-related arguments;
    and (4) other arguments.

B.

BACKGROUND

Facts

[6]

Mr. Mullen owns T.S. Mullen Farms Ltd. It in turn owns the farm property
    adjacent, to the west, to Ms. Murphys 40-acre property.

[7]

Prior to the trespass, both the Mullen property and the Murphy property
    were used as farmland. They were separated by a drainage ditch and a column of
    mature trees. The line of trees was approximately 2,000 feet long and 60 feet deep.
    The drainage ditch was on the Murphy property.

[8]

Mr. Mullen entered the Murphy property and cut and removed the trees.
    After removing the tree line, he filled in the drainage ditch beside it. He
    would later argue that Ms. Murphy had given him permission to do so. Ms. Murphy
    acknowledged that probably one half of the trees removed were on the Mullen
    property.

[9]

The Mullen property did not have proper drainage. It had no direct
    outlet to two existing municipal drains. Mr. Mullen took the action he did to
    improve drainage on the Mullen property and make it a viable farming operation.
    After it was apparent that Ms. Murphy did not agree with his actions, he petitioned
    the town for a municipal drain to address the drainage issues on the Mullen
    property. The municipality eventually constructed a drain. The costs were
    assessed to both properties under the
Drainage Act
, R.S.O. 1990, c. D.17.
    Of the total cost of $102,000, $77,032 was assessed to the Mullen property, and
    $24,968 to the Murphy property.

Trial Judges Reasons

[10]

On
    the appellants summary judgment motion, the trial judge found that Mr. Mullen
    had not discharged his burden of proving he had leave and licence to do any
    work on Ms. Murphys property. Accordingly, she found the appellants liable for
    trespass on the Murphy property.

[11]

There
    was a separate four-day hearing on the issue of damages, which gave rise to this
    appeal.

[12]

At
    the time of the hearing, Ms. Murphy lived in the United States. The Murphy
    property had been in the Murphy family for generations. There had been no house
    on the Murphy property since the 1870s.
[2]
Nevertheless, the trial judge accepted that Ms. Murphy intended to build a
    house on the southwest corner of the property close to the tree line, and
    retire there. As I will discuss below, several of the appellants arguments
    arise out of the trial judges acceptance of Ms. Murphys evidence that she
    intended to build a house on the Murphy property.

[13]

The
    trial judge also found that the trees were important to Ms. Murphy. Her
    evidence was that she had planted over 100 trees on her property in Richmond,
    Michigan. The tree line on the Murphy property had provided a sound and light
    barrier from the residential subdivision and the fairgrounds located to the
    west of the Mullen property. It was a habitat for wildlife and provided a wind
    break and a visual screen between the Murphy and the Mullen properties.

[14]

The
    trial judge carefully reviewed the law on the issue of damages for loss of
    trees.

[15]

She
    observed that the determination of compensation for loss of trees is a highly
    fact-dependent exercise and may vary depending on a number of factors:

Generally, the court will try to place the
    plaintiff in the same position as they were before the trespass was committed
    as far as having privacy restored or aesthetic beauty replaced, but not
    necessarily the replacement of the exact tree lost. If replacement is possible
    but not practicable, the court will look at what is reasonable in the
    circumstances.

[16]

The
    trial judge noted that the appellants submitted that the court had three
    options on which to base its award: (1) the value of the trees; (2) the decrease
    in valuation of the land resulting from the cut trees; or (3) the cost of
    reasonable restoration.

[17]

There
    was no evidence as to either the value of the trees or the decrease in value of
    the land. In any event the trial judge concluded that the appropriate approach
    to damages was that taken in
Kates v. Hall
, 1991 CanLII 1127
    (B.C.C.A.), affg [1989] B.C.J. No. 1358 (S.C.), namely the amount sufficient
    to pay for the remedial work which a reasonable person without monetary
    constraints in the plaintiffs position would have implemented had the loss been
    caused without fault on anyones part:
Kates
, at p. 6.

[18]

The
    trial judge rejected the appellants argument that the trees would have had to
    be removed in any event given the subsequent placement of an open drain on the
    property line between the Mullen and Murphy properties and, accordingly, they
    should not be responsible for the cost of replacing the trees. She reasoned
    that had the tree line and ditch remained in place, Ms. Murphy likely would
    have opposed their removal to accommodate a municipal drain. The municipality
    could have placed the drain in a different location or considered different
    drainage options. Therefore, it was not at all certain that trees would have
    had to be removed.

[19]

The
    trial judge found that the value of the trees was in their placement. She
    concluded that a reasonable person in Ms. Murphys position would arrange for
    the planting of trees along the property line for the portion (200 metres) of
    the full 610-metre length of the former tree line near where Ms. Murphy planned
    to build a house, and not along the north end of the property intended to be
    used for farmland.

[20]

The
    trial judge accepted the evidence of Ms. Murphys son that, when he had walked
    the tree line, he had counted 300 trees. The tree line included trees that were
    40 to 60 feet tall.

[21]

The
    trial judge concluded that it was reasonable to use 40 to 50 mm caliper trees that
    were approximately 8 to 10 feet tall as replacement trees. Based on the expert
    evidence of the arborist called by Ms. Murphy, she found that the approximate
    cost of replacing one third of the tree line was $73,902. She accepted the
    experts evidence that irrigation and a fence to protect the new trees from the
    deer would be necessary and assessed $20,000 for irrigation and $13,000 for
    fencing.

[22]

The
    trial judge found that the ditch Mr. Mullen had filled in had provided
    sufficient drainage for the Murphy property. Accordingly, she added the cost of
    the survey Ms. Murphy had to obtain for the purpose of the new drain
    constructed by the municipality, and the
Drainage Act
costs of $24,968
    assessed against the Murphy property.

[23]

Finally,
    the trial judge added the sum of $75,000 for loss of amenities. This amount
    recognized that Ms. Murphy would be waiting at least 20 years before she had
    mature trees at the place where she plans to build her house and that she would
    most likely never have trees along the entire length of the property line as
    she did before. As I will outline below, the trial judge explained how she
    determined that, in the circumstances, $75,000 was the appropriate amount.

[24]

The
    trial judge declined to make an order for punitive damages.

C.

DISCUSSION

(1)

Foreseeability-related arguments

[25]

As
    noted above, the trial judge accepted Ms. Murphys evidence that she intended
    to build a house on the southwest corner of the Murphy property close to where
    the tree line had been. She also concluded that a reasonable person in Ms. Murphys
    position would replace a portion of the tree line that Mr. Mullen removed.

[26]

The
    appellants argue that, unless waived, the concept of foreseeability applies to
    the quantification of damages for the tort of trespass and that the trial judge
    failed to apply this concept. While they conceded in their oral submissions
    that it was foreseeable that somebody, at some time, might build a house on the
    Murphy property, they argue that it was not foreseeable that the person building
    the house would have an affinity for trees and would use land that could
    otherwise be used for farming to plant replacement trees.

[27]

The
    appellants also argue that, in a trespass case, it is assumed that the
    plaintiff would have used her land in the usual way such land was used
at the time of the trespass
. The appellants say
    deviation from this principle is justified only where objective evidence
    establishes that a change in land use was imminent at the time of the trespass
    or, at a minimum, was a realistic and likely outcome of a process already
    underway. The Murphy property was used for farmland and construction of a house
    was not imminent. In fact, Ms. Murphy had taken no concrete steps towards
    constructing a house. Accordingly, it should have been assumed that Ms. Murphy
    would not build a house, or, if she did, would not use land that could
    otherwise be used to plant crops to plant replacement trees. Paul Lantin, the
    tenant farmer who had farmed the Murphy property for many years, testified that
    about 20 feet of grain was lost because of the trees.

[28]

I
    reject these two arguments. Because my discussion of these two arguments
    overlaps, I will address them together.

[29]

As
    I will explain, even accepting for the purpose of argument that the concept of
    foreseeability is generally relevant in assessing damages for the tort of
    trespass to land involving the removal of trees, in this case there is no merit
    to the appellants foreseeability argument. Moreover, the trial judge was not
    required to assume that Ms. Murphy would use her land in the way it was used
at the time of the trespass
.

[30]

The
    appellants rely on a decision of the Saskatchewan Court of Appeal
Wood
    Mountain Lakota First Nation No. 160 v. Goodtrack
, 2020 SKCA 10, at paras.
    24-26, leave to appeal refused, [2020] S.C.C.A. No. 345
[3]
 in support of their foreseeability argument. Notably, they do not point to
    any decisions of this court or any decisions from the Supreme Court of Canada.

[31]

Wood
    Mountain
is not a trespass case involving the removal of trees. It relies
    on a passage from G.H.L. Fridman,
The Law of Torts in Canada
, 3rd ed.
    (Toronto: Thomson Reuters, 2010), at pp. 57-59:

Foreseeable loss is recoverable, and for this
    purpose it is assumed that the plaintiff would have used his land in the usual
    way such land is used.

In a footnote to this sentence, Professor Fridman
    cites three cases:
De Wurstemberger v. Royalite Oil Co.
, [1935] 2
    D.L.R. 177 (Alta. S.C. (A.D.));
Buckingham v. Graham
(1996), 174
    N.B.R. (2d) 330 (Q.B.); and
Shewish v. MacMillan Bloedel Ltd.
(1990),
    48 B.C.L.R. (2d) 290 (C.A.).

[32]

From
    my review of the cases cited by Professor Fridman, the quoted passage derives
    from
De Wurstemberger
, which in turn cites another Alberta case,
Marsan
    v. G. T. P. Ry. Co.
(1912), 4 Alta. L.R. 167 (S.C. (A.D.)). Neither case
    involves quantification of damages in trespass cases for the removal of trees.
    These cases stand for the proposition that, generally, a trespasser is liable
    for damages that the trespasser could fairly be expected to anticipate from their
    act, and that a trespasser can always be fairly expected to anticipate that the
    plaintiff intends to use her property in
any
reasonable
    and usual way (emphasis added). These cases do not stand for the proposition
    that in assessing damages it must be assumed that the plaintiff will use her
    land in the usual way it was used at the time of trespass. The proposition
    arises in the context of a foreseeability analysis and the cases cast the
    foreseeability net more widely.

[33]

In
    support of their argument that it must be assumed in assessing damages that the
    plaintiff would have used her land in the usual way such land was used at the
    time of trespass, the appellants cite two trespass cases:
G.T. v. D.
    Saunders
, 2014 ONSC 4422, at para. 75, and
Costello v. Calgary (City)
(1995),
    163 A.R. 241 (Q.B.), at para. 54, revd in part, 1997 ABCA 281, 152 D.L.R.
    (4th) 453, leave to appeal refused, [1997] S.C.C.A. No. 566.

[34]

Saunders
is a case where the damages awarded included damages for the removal of trees.
    It, in turn, refers to the passage in
The Law of Torts
quoted above.
    As I explain above, in the context of the cases on which Professor Fridman
    relies, the above-quoted passage does not stand for the proposition that it
    must be assumed that the trespasser will use her land in the way it was used at
    the time of trespass. Moreover, the above-quoted passage was not material to
    the analysis in
Saunders
. Pierce R.S.J. concluded that the modest
    amount of damages sought by the plaintiff to replace the trees removed was
    reasonable in the circumstances: the damage was located in a far corner of the
    plaintiffs property and was not immediately visible from their residence.

[35]

Costello
did not involve the removal of trees; it involved a trespass flowing from an
    expropriation subsequently declared void. In determining damages for the
    owners temporary loss of use of the property, the trial judge cited
Marsan
.
    In
Marsan
, the Alberta Supreme Court (Appellate Division) wrote that
    [a] trespasser must be held to know that the owner of the land will try to use
    it in any usual and reasonable way which would be profitable to him (at p.
    173). In
Costello
, the court accepted that the plaintiff would have proceeded
    to develop a new motel on the expropriated site and awarded damages for loss of
    operating revenue from the operation of the proposed larger motel.
Costello
does not stand for the proposition that it must be assumed that the trespasser
    will use her land in the way it was used at the time of trespass.

[36]

Therefore,
    none of the appellants authorities establish that the trial judge was under an
    obligation to assume that Ms. Murphy would only use her land for farmland.
    That being so, it is unnecessary to consider in what circumstances a trial
    judge may deviate from that assumption.

[37]

As
    to the application of foreseeability in general, it is not clear to what extent
    the limiting principle of foreseeability is applicable to intentional torts,
    such as trespass to land, in Ontario.

[38]

As
    noted above, the appellants rely on a decision of the Saskatchewan Court of
    Appeal in support of their foreseeability argument.

[39]

In
    response, Ms. Murphy points to an Ontario decision, albeit a decision of a
    lower court, in support of the argument that foreseeability is not applicable to
    intentional torts:
Allan v. New Mount Sinai Hospital
(1980), 28 O.R.
    (2d) 356 (H.C.J.), revd (1981), 33 O.R. (2d) 603 (C.A.)
[4]
,
    citing
Bettel v. Yim
(1978), 20 O.R. (2d) 617 (Co. Ct.),
per
Borins
    J. In
Allan
, Linden J. commented, at p. 365, that [t]he limitation
    devices of foresight and remoteness are not applicable to intentional torts, as
    they are in negligence law.

[40]

Bettel
    v. Yim
[5]

was also cited by the Supreme Court in
Non-Marine Underwriters,
    Lloyds of London v. Scalera
, 2000 SCC 24, [2000] 1 S.C.R. 551, at para.
    99, where Iacobucci J. noted that if a tort is intended, it will not matter
    that the result was more harmful than the actor should, or even could have
    foreseen. This comment was made in the context of a discussion about the
    elements of the tort of sexual battery.
[6]

[41]

In
Murano v. Bank of Montreal
(1998)
,
    163 D.L.R. (4th) 21 (Ont. C.A.), this court also commented on foreseeability in
    the intentional tort context. Morden A.C.J.O. noted that [g]enerally, a
    trespasser can be liable for unforeseen consequences. While he did not
    suggest that there can be no limit on the damages recoverable as a result of an
    intentional tort, in the case before him (which dealt with the torts of
    trespass and conversion) it was unnecessary to explore the possible limits.

[42]

Here
    too it is unnecessary for this court to resolve the application of the concept
    of foreseeability in assessing damages for the tort of trespass to land
    involving the removal of trees.

[43]

The
    remoteness inquiry asks whether the harm [is] too unrelated to the wrongful
    conduct to hold the defendant fairly liable:
Mustapha v. Culligan of Canada
    Ltd.
, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 12, citing Allen M.
    Linden & Bruce Feldthusen,
Canadian Tort Law,
8th ed.
    (Markham, Ont.: LexisNexis Butterworths, 2006), at p. 360. Remoteness is
    assessed through the lens of reasonable foreseeability.

[44]

Here,
    there is no issue about the foreseeability of the type of harm: the loss of the
    trees. Mr. Mullen intentionally cut down the tree line.

[45]

In
    their oral submissions, the appellants contended, however, that even though it
    was foreseeable that someone might build a house on the property, it was not
    foreseeable that such a person would have an unusual affinity for trees or
    would plant trees on land that could be used for agricultural purposes.

[46]

This
    is not an issue of failing to apply the concept of foreseeability. Rather, the
    appellants seek to impugn the trial judges finding, in applying
Kates
,
    as to what a reasonable person in Ms. Murphys position, without monetary
    constraints, would pay to restore the property had the loss been caused without
    fault on anyones part.

[47]

In
    a footnote to the paragraph in
The Law of Torts
containing the passage
    that is central to the appellants first argument, Professor Fridman writes
    that quantification of damages in trespass cases involving trees has caused
    courts much difficulty and has resulted in many different ways of dealing with
    the issue. He lists the approach in
Kates
as one of these ways.

[48]

The
    appellants conceded that the approach in
Kates
was one of the possible
    methods of assessing damages, although they argued before the trial judge that
    a different method should be used. The trial judge chose to apply
Kates
.
    The framework in
Kates
takes into account the reasonableness of the
    plaintiffs wish to restore the property to its former state, the actual
    benefit to the plaintiff of the restoration work, and the use to which the
    injured party
has and
will
    put
the property:
Kates
at p. 15.

[49]

The
    trial judge assessed damages from the perspective of a reasonable person in Ms.
    Murphys position  i.e., the position of someone who wanted to build a house
    on the property, which the appellants conceded was foreseeable. The trial judge
    found that a reasonable person in Ms. Murphys position would wish to replace
    the privacy and the sound screen of the tree line along the property adjacent
    to the proposed building area for the home, plus an additional length. The
    trial judge took into account the fact that any replacement trees would occupy
    land that could be used for agriculture. Accordingly, she did not accept that a
    reasonable person would extend the trees for the entire length of the former tree
    line given that the north end of the property was intended to be used for
    farmland. Arguably, in considering what a reasonable person in the plaintiffs
    position would do, the approach in
Kates
assesses remoteness. It is
    difficult to imagine that the actions of a reasonable person would not be
    reasonably foreseeable.

[50]

In
    these circumstances, there is no merit to the appellants foreseeability
    argument or their argument that the trial judge was required to assume that the
    plaintiff would use her land in the usual way it was used at the time of
    trespass.

(2)

Other arguments related to Ms. Murphys
    intention to build a house on her property and her affinity for trees

[51]

The
    appellants make three further arguments related to Ms. Murphys intention to
    build a house and her affinity for trees. For the following reasons, none of
    them persuade me that this court should interfere with the trial judges assessment
    of damages.

[52]

First,
    the appellants argue that, as plaintiff, Ms. Murphy had the onus of providing
    the court with cogent evidence on which to assess damages. Her assertion that
    she intended to build a house on the Murphy property was not supported by any
    objective evidence of her intent or evidence that she would actually follow
    through on that intent. In accepting Ms. Murphys evidence, without
    corroboration, and without evidence that her intent was objectively reasonable,
    the trial judge misapplied the burden of proof. Had the trial judge not
    accepted that Ms. Murphy intended to build a house, she would not have
    awarded the cost of replacing one third of the tree line.

[53]

I
    reject this argument. In her reasons, the trial judge recognized that Ms. Murphy
    bore the onus of establishing the damages arising from the appellants
    trespass. Although Ms. Murphy admitted in cross-examination that she had not
    applied for a building permit, hired an architect, or taken steps to obtain
    Canadian residency status at the time of the trespass, the trial judge was entitled
    to rely on Ms. Murphys evidence that she intended to build a house on the
    Murphy property. The trial judge did not reverse the onus of proof. Further, it
    is implicit from the trial judges reasons as a whole that she accepted that
    Ms. Murphy would probably act on her stated intention.

[54]

Second,
    the appellants submit that the trial judge erred in her application of the test
    in
Kates
. An objectively reasonable person in Ms. Murphys position,
    without monetary constraints, would not spend the money to plant trees along
    200 metres of the property line. The trial judge erred by applying a subjective
    standard and infusing the reasonable person with Ms. Murphys alleged affinity
    for trees.

[55]

I
    reject this argument. As I have already stated, the trial judges conclusion
    that a reasonable person would replace 200 metres of the tree line was grounded
    in multiple factors. These included the privacy, the natural habitat, and the
    screen against noise and light that the trees provided. It was open to the
    trial judge to conclude that a reasonable person who intended to build a house
    would value these elements and want them restored, to a reasonable degree.

[56]

Finally,
    the appellants submit that the trial judge should have discounted the damages
    award to reflect the low probability that Ms. Murphy would actually build a
    house. I am not persuaded that the trial judge was of the view that the
    probability was low. As indicated above, in my view it is implicit from the
    trial judges reasons as a whole that she accepted that Ms. Murphy would
    probably act on her intention to build a house on the Murphy property. In any
    event what matters is not whether the house will ultimately be built but rather
    what remedial work Ms. Murphy would reasonably undertake.

(3)

Drainage-related arguments

[57]

The
    appellants make three drainage-related arguments. The first two are related.

[58]

Their
    first argument is that the trial judge engaged in judicial speculation when she
    rejected their argument that the trees would have had to have been removed in
    any event, given the subsequent placement of the municipal drains. They say
    there was no evidentiary support for her conclusion. The impugned passage is
    the following:

If the hedge row and ditch had remained in place, [Ms. Murphy]
    would most likely have opposed their removal to accommodate a municipal drain.
    The drain could possibly have been placed in a different location, or different
    drainage options could have been considered and/or implemented. It is not
    certain at all that the trees would have had to be removed to accommodate the
    drain.

[59]

The
    appellants second, and alternative, argument was made only in their factum and
    not pursued in oral argument. In their factum they assert that the trial judge
    should at least have reduced the damages awarded to account for what they say
    is the high probability that the trees would, in any event, have had to have
    been removed. For this proposition, without elaboration, they cite a personal
    injury case:
Schrump v. Koot
(1977), 18 O.R. (2d) 337 (C.A.).

[60]

The
    respondents counter with
Dykhuizen v. Saanich (District)
(1989), 63
    D.L.R. (4th) 211 (B.C.C.A.). In that case, Taylor J.A. relied on
Carr-Harris
    v. Schacter and Seaton
, [1956] O.R. 994 (H.C.J.), and
Livingstone v.
    The Rawyards Coal Company
(1880), 5 App. Cas. 25,
per
Lord
    Blackburn, for the proposition that a wilful trespasser is not entitled to say
    that the damage he did would probably have eventually occurred in any event:
Dykhuizen
,

at p. 213.

[61]

Addressing
    the appellants second argument first,
Schrump
and its progeny address
    the approach to the calculation of damages for a future, uncertain loss. In
    contrast, the loss of the trees was a past, certain loss and the appellants
    agreed that it was open to the trial judge to apply the approach in
Kates
in assessing Ms. Murphys damages for that past, certain loss. I would not
    interfere because the trial judge did not apply the principle in
Schrump
.

[62]

Nor
    would I interfere on the basis that the trial judge engaged in improper
    judicial speculation.

[63]

The
    appellants called Gerardus Rood, a civil engineer, to testify about the
    drainage proposals he prepared under the
Drainage Act
. Those proposals
were prepared after
    Mr. Mullen had removed the trees.
Mr.
    Rood was called
as a participant expert, and did not opine as to
    the chances that the drain could have been placed in such a way as to save some
    or all of the trees, had they not been cut down. All Mr. Rood could do is
    predict what effect his proposals would have had on the trees, had they not
    been cut down. If it were open to the appellants to argue that the trees would
    probably have been removed in any event, they were required to point to
    evidence which supports such a finding. The appellants called no expert
    evidence, and therefore one can only speculate as to what proposals might have
    been made and approved by the municipality if the trees had not been removed.

[64]

As
    the trial judge found, if the trees had remained in place, Ms. Murphy
    would most likely have opposed their removal to accommodate a municipal drain
    and [t]he drain could possibly have been placed in a different location, or
    different drainage options could have been considered and/or implemented. This
    was not improper judicial speculation. Rather, it simply reflected the
    appellants failure to adduce evidence to support their assertion.

[65]

The
    appellants third drainage-related argument is that the trial judge erred in
    accepting the evidence of Ms. Murphy, an absentee owner, that the Murphy
    property had sufficient drainage, over that of Paul Lantin, the tenant farmer
    who had farmed the property for many years, that the Murphy property was hard
    to drain, without providing any reason for doing so. This finding underpinned
    the award of the cost of the survey Ms. Murphy had to obtain for the purpose of
    the construction of a new drain by the municipality and the $24,968 cost of the
    new drain that had been assessed against the Murphy property as damages.

[66]

The
    trial judges finding is supported by the record and the path to her conclusion
    is apparent. Ms. Murphys evidence that the drainage was sufficient was
    supported by Mr. Mullens own evidence. He testified that the water problem
    wasnt so much a problem on her side, it was more or less on  on my side. I
    had  I had  had no drainage at all.

[67]

The
    drainage on the Murphy property was sufficient in part because of what Mr.
    Lantin did. Mr. Lantin testified that the Murphy property was hard to drain and
    that he had to make a furrow to get the water moving. The Mullen property had
    no sub-surface drainage, and its drainage problem could not be ameliorated by
    measures such as that taken by Mr. Lantin. It was after Mr. Mullen cut down the
    trees on the Murphy property that it had drainage problems.

[68]

I
    turn to the appellants remaining arguments.

(4)

The appellants remaining arguments

[69]

The
    appellants make four further arguments.

[70]

First,
    they argue that in assessing damages, the trial judge erred by simply taking
    one third of Ms. Murphys arborists estimated cost for replacing the entire
    tree line. His estimate was based on using 480 trees  a mix of 40 to 50 mm
    caliper trees and poplar whips  but the trial judge accepted that there were
    only 300 trees in the tree line. Further, Ms. Murphy had acknowledged that
    probably one half of the trees removed were on the Mullen property and the
    trial judge accordingly erred by not discounting the damages for the half of
    the tree line that was on the Mullen property.

[71]

There
    is no basis to interfere with the trial judges calculation of the cost of
    replacing the trees along one third of the tree line. The expert evidence was
    that 480 smaller trees were required to replace the tree screen that was
    removed from the Murphy property. Although the number of trees the expert recommended
    be planted was well in excess of the number of trees removed the replacement
    trees were much smaller and the larger number was required to generate an
    equivalent screen within a reasonable period of time.

[72]

Second,
    the appellants argue the trial judge erred in preferring the evidence of Ms.
    Murphys arborist that a deer fence was necessary to protect the new trees from
    the local deer population, over that of the appellants arborist that deer do
    not populate the area and, even if they did, a deer fence was not necessary.

[73]

There
    was evidence supporting the trial judges finding. She was entitled to prefer
    the evidence of Ms. Murphys expert over that of the appellants. This is not a
    basis for interfering with the trial judges damages assessment.

[74]

Third,
    the appellants argue that the trial judges choice of 200 metres as the length
    of the fence line on which the trees should be replaced and her award of
    $75,000 for loss of amenities are arbitrary and unsupportable.

[75]

I
    disagree. These determinations are far from arbitrary. Ms. Murphy testified
    that she wanted to replace the entire tree line. The trial judge concluded that
    was not reasonable, and, at para. 70, explained why she chose 200 metres:

A reasonable person would, in my view, wish to replace the
    privacy and the sound screen of the tree line along the property adjacent to
    the proposed building area for the home, plus an additional length.

[76]

Further,
    the trial judge explained the rationale for the $75,000 amount and how she
    determined it. As noted above, this amount recognized that Ms. Murphy would be
    waiting for at least 20 years before she had mature trees at the place where
    she plans to build her house and that she would most likely never have trees
    along the entire length of the property line as she did before. The character
    of the Murphy property was forever changed. As to how the trial judge
    determined the amount, she noted that it was impossible to determine how many
    of the 300 trees Ms. Murphys son had counted were on the Murphy property, as
    opposed to the Mullen property, so the trial judge took one half of that
    amount, namely 150 trees. While there was some precedent for an award of $1,000
    per tree
[7]
,
    because Ms. Murphy did not yet have a house on the property and had not
    yet started to build, she reduced that sum to $500 per tree. The $75,000 is the
    product of $500 multiplied by 150.

[77]

Finally,
    the appellants argue that the award of $213,471 is so inequitable and wholly
    erroneous as to justify appellate intervention.

[78]

This
    argument is unfounded. The appellants have not identified any reviewable error
    in the trial judges assessment of damages and the assessment is not palpably
    incorrect or wholly erroneous.

D.

Disposition

[79]

In
    the result, I would dismiss the appeal, with costs to Ms. Murphy in the amount
    of $20,000, all inclusive.

Released: December 9, 2021 P.R.

Alexandra
    Hoy J.A.

I
    agree. Paul Rouleau J.A.

I
    agree. Thorburn J.A.

[1]

Although the statement of claim and style of cause refer to
    two plaintiffs, the judgment awards damages only to Ms. Murphy. Accordingly, I
    refer only to her throughout these reasons.

[2]

Although the trial judges reasons indicate that there has
    not been a house on the property since the 1970s, that appears to be a
    typographical error. Ms. Murphy testified that there had not been a house on
    the property since the 1870s. That timeline coincides with her familys
    acquisition of the property.

[3]
In
Wood
    Mountain
, the defendants were found to be trespassers, and the court
    granted a permanent injunction and awarded damages for lost rent and punitive
    damages. On appeal, the main issue was whether the plaintiff was also entitled
    to damages for the past loss of funding under a federal grant program. The
    Court of Appeal stated that [t]he concept of foreseeability applies to the
    quantification of damages for the tort of trespass and that [d]amages for
    trespass should place a plaintiff in the same position as it would have been
    absent the trespass: at paras. 24-25. The court concluded that the losses
    under the grant program were foreseeable. One of the direct consequences of
    this trespass was the loss of the [federal] funding, and [o]nce a court finds
    a loss was caused by a defendants wrongdoing, and the loss was foreseeable,
    the plaintiff is entitled to damages: at para. 26.

[4]

Allan

was
    reversed on the basis that liability was imposed on a ground not pleaded.

[5]
More recently,
Bettel v. Yim
was referred to in
Shah v. LG Chem, Ltd.
,
    2017 ONSC 2586, 413 D.L.R. (4th) 546 (Div. Ct.), at paras. 43-46, and
Shah v. LG Chem, Ltd.
, 2018 ONCA 819, 142
    O.R. (3d) 721, at footnote 3, leave to appeal refused, [2018] S.C.C.A. No. 520.

[6]
Although remoteness was not the point in issue in
Scalera
,
    Iacobucci J.s statement about foreseeability has been adopted by this court,
    although not in the context of the tort of trespass to land: see, for e.g.,
Buchanan v. GAN Canada Insurance Co.
(2000), 50 O.R. (3d) 89;
Meadows v. Meloche
    Monnex Insurance Brokers Inc.
, 2010 ONCA 394, 102 O.R. (3d) 312, at
    para. 23.

[7]

In
Kates
,
    for instance, the trial judge awarded $1,000 per tree for loss of amenities.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Imran-Khan, 2021 ONCA 874

DATE: 20211209

DOCKET: C67105

Fairburn A.C.J.O., Feldman and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sharina Imran-Khan

Appellant

Chris Sewrattan and Ashley Sewrattan,
    for the appellant

Jerry Brienza, for the respondent

Heard: December 2, 2021

On appeal from the convictions entered
    on February 28, 2019, by Justice David L. Corbett of the Superior Court of
    Justice.

REASONS FOR DECISION

[1]

The appellant, a real estate agent, was
    convicted of fraud in relation to three real estate transactions. In the first,
    she was found to have defrauded the victim by facilitating a mortgage on his
    commercial property without his knowledge. In the second, she was found to have
    falsely claimed to consolidate two of an unrelated victims mortgages into a
    third mortgage, not canceling the two previous mortgages, and keeping the funds
    that were intended to pay those mortgages off. In the third, she was found to have
    defrauded another couple by keeping funds that were meant to refinance their
    mortgage.

[2]

On appeal, the sole issue raised is whether the
    trial judge impermissibly intervened during the cross-examination of the
    appellant and by expressing his disbelief of her evidence during her testimony.
    The appellant argues that the trial judges interventions created two
    impressions: first, that the trial judge placed the authority of his office on
    the Crowns side; and second, that the trial judge disbelieved the appellant. She
    argues that these impressions, together, constituted a miscarriage of justice
    that warrants a new trial. Essentially, the claim is that the interventions
    raised a reasonable apprehension of bias on the part of the trial judge.

[3]

We do not agree.

[4]

By way of context, we agree with the trial
    judges assessment of the Crowns case as not a close call. There was no
    doubt that frauds had taken place and the only issue was whether the appellant
    was a knowing participant. The Crowns case against the appellant was
    formidable.

[5]

The trial judges reasons were detailed, and he
    carefully considered the evidence before him. In his reasons for decision, the
    trial judge called the defence, which was largely comprised of the appellants
    evidence, a pack of lies albeit salted with some nuggets of truth. He made
    explicit credibility findings with respect to the evidence of the Crown
    witnesses and generally accepted their evidence. He expressly applied
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742, and soundly rejected the appellants
    evidence, finding that it did not raise a reasonable doubt of her guilt.

[6]

The appellant bases her appeal on ten allegedly improper
    interventions that the trial judge made in the course of the cross-examination
    of the appellant over a day and part of another day. She argues that, taken
    together, the interventions created the appearance of an unfair trial to a
    reasonable person present throughout the proceedings, and fell within the
    impermissible category of questioning an accused person to such an extent or
    in a manner which conveys the impression that the trial judge has placed the
    authority of his or her office on the side of the prosecution and conveys the
    impression that the trial judge disbelieves the accused or the witness: see
R.
    v. Murray
, 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 96-97;
R. v.
    Stucky
, 2009 ONCA 151, 303 D.L.R. (4th) 1, at para. 71, citing
R. v.
    Valley
(1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 231. Ultimately, the
    question to be asked is: would a reasonably minded person who had been present
    throughout the trial consider that the accused had not had a fair trial?

[7]

We start with the observation that the appellant
    and her senior counsel did not object to the trial judges interventions.

[8]

The interventions do not, read in their
    entirety, paint a picture of a judge who has compromised trial fairness. It is
    clear from the transcripts that the appellants evidence was frequently
    confusing. The interventions are virtually all questions seeking clarification
    in this judge-alone trial. They demonstrate a high level of engagement on the
    part of the trial judge, which is ultimately reflected in his reasons: he
    listened carefully to the evidence and sought clarification when he needed it.

[9]

The only point at which the trial judge clearly
    expressed disbelief in the appellants evidence was after the cross-examination
    was complete, when he indicated that the appellants evidence did not make
    sense. In the unusual circumstances of this case, where the record reveals that
    the appellants explanation of the impugned transactions was lacking in any
    credulity, the trial judge gave the appellant the opportunity to talk to her
    lawyer regarding obvious problems in her evidence that might be addressed via the
    production of corroborating documentation in re-examination. The defence chose
    not to do so.

[10]

We do not find that this intervention, read
    alone or along with the others, was sufficient to raise a reasonable
    apprehension of bias. Put another way, we are not satisfied that a reasonably
    minded person who had been present throughout the trial would consider that the
    accused had not had a fair trial. Rather, the trial judge was seeking
    clarification of confusing evidence, and when he did express his disbelief of
    her evidence at the end of her cross-examination, he provided her with the
    opportunity to provide corroborative evidence.

[11]

In short, the evidence that the appellant
    participated in the frauds alleged was overwhelming, and, considered in
    context, the trial judges interventions did not give rise to a reasonable
    apprehension of bias that compromised the appellants right to a fair trial.

[12]

The appeal is therefore dismissed.

Fairburn
    A.C.J.O.

K.
    Feldman J.A.

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ruparell v. J.H. Cochrane Investments Inc., 2021 ONCA 880

DATE: 20211210

DOCKET: C68960

Doherty, Benotto and Huscroft
    JJ.A.

BETWEEN

Deepak Ruparell

Plaintiff (Respondent)

and

J.H. Cochrane Investments Inc.,
    2117105 Ontario Inc., 2122192 Ontario Inc., dba Town + Country Volkswagen and 1788289
    Ontario Inc.

Defendants (Appellants)

James Doris and Abhishek Vaidyanathan,
    for the appellants

Paul Fruitman and Vlad A. Calina, for the
    respondent

Heard: November 30, 2021

On appeal from the judgment of Justice Janet
    Leiper of the Superior Court of Justice, dated December 7, 2020.

REASONS FOR DECISION

[1]

The appellants were negotiating the sale of their
    car dealership to the respondent. Negotiations continued over several months
    and agreement was reached on a number of terms. The appellants then received an
    unsolicited offer from a third party for more money, which they accepted. The
    respondent sued for breach of contract, seeking specific performance.

[2]

The appellants argue that the trial judge erred
    in finding that the parties had reached an agreement and erred in her
    calculation of damages, which she awarded in lieu of specific performance.

[3]

We do not accept these arguments. The appeal is
    dismissed for the reasons that follow.

[4]

It is not unusual for contracts to be made by
    agreement on the essential terms, which are later incorporated into a formal
    written document. Whether the parties reached a binding contract depends on the
    circumstances of the case, and in particular on the intention of the parties.

[5]

The trial judge considered the history of the
    parties negotiations, noting that they had two distinct phases. The parties
    had been negotiating pursuant to the terms of a non-binding letter of intent that
    described the terms of engagement for a due diligence and financial information
    review, expectations on closing, purchase price, and a deposit of $1 million. The
    letter required share purchase agreements and contained an exclusivity clause
    preventing the appellants from negotiating with other parties, but that clause
    expired on April 15, 2020.

[6]

The trial judge found that the second phase of
    the parties negotiations began with the expiry of the exclusivity period, by
    which time the global COVID-19 pandemic was adversely affecting the appellants
    business. The respondent made a new, lower offer to the appellants on April 16,
    which included a vendor take-back mortgage. The parties continued negotiations
    from April 16 to April 24, 2020. The appellants counter-offered a higher price but
    this was rejected by the respondent.

[7]

The trial judge found that the commercial
    purposes of the letter of intent were spent after April 15 and that a new deal
    was contemplated. The essential terms of the new transaction were price, share
    sale, financing, security, timing of payment, asset valuation and post-closing
    adjustment and retaining the general manager to work for the new company. The
    trial judge found that the parties agreed to these terms on April 24, 2020,
    when Peter Hatges, a KPMG adviser engaged by the appellants and authorized to
    represent them, told the respondent in a voicemail message: we have a deal.
    The trial judge found, further, that the parties acted as though they had a
    deal. Between April 26-28, 2020, counsel for the parties revised the share
    purchase agreements in accordance with the April conversations and the term sheet.

[8]

The appellants press this courts decision in
Bawitko
    Investments Ltd. v. Kernels Popcorn Ltd.
(1991)
,
    79 D.L.R. (4th) 97 (Ont. C.A.), which they submit governs the outcome in this
    case. But the trial judge properly distinguished
Bawitko
, which
    concerned a franchise agreement. The court found that the parties agreement in
    that case did not encompass essential aspects of the intended formal
    agreement and did not satisfy the standards of certainty the law requires.

[9]

In this case, the trial judge found that the
    parties agreed on the essential terms of their deal. This finding was open on
    the record before her and is entitled to deference. We do not accept the
    appellants submission that the trial judge misapprehended the evidence or
    otherwise made a palpable and overriding error. Nor do we accept any of the
    appellants arguments that the contract was not sufficiently certain or that
    the parties did not intend to be bound. These arguments were considered and
    rejected by the trial judge at paragraphs 63-71 of her decision. We agree with
    her treatment of these arguments and see no error requiring intervention.

[10]

The trial judge did not err in dismissing the appellants
    counterclaim that the respondent breached the terms of the letter of intent by
    commencing the action and seeking specific performance. Dismissal of the
    counterclaim follows from her finding that the commercial purposes of the
    letter of intent were spent by April 15 and that a new deal was contemplated,
    and there is no basis to interfere with that finding.

[11]

The trial judge declined to exercise her
    discretion to order specific performance and
awarded
    the
respondent $5 million in damages (exclusive of pre-judgment
    and post-judgment interest), reflecting their lost opportunity. This amount was
    the difference between the $19 million the respondent offered and the $24
    million offer from the third party the appellants accepted.

[12]

There is no basis to interfere with the trial
    judges award of damages. The third-party offer came at essentially the same
    time as the respondents offer, and as a result established a proxy for the
    value of the business the respondent had agreed to purchase. The difference
    between what the third party was willing to pay and the amount the respondent
    had agreed to pay demonstrates that the respondent would have realized surplus
    value had the sale been completed as required, and the trial judge did not err
    in awarding this amount as damages.

[13]

The appeal is dismissed. The respondent is
    entitled to costs in the agreed amount of $40,000, all inclusive.

Doherty J.A.

M.L. Benotto
    J.A.

Grant Huscroft
    J.A.