COURT OF APPEAL FOR ONTARIO

CITATION: Pepper v. Brooker, 2017 ONCA 532

DATE: 20170626

DOCKET: C60458

Epstein, Benotto and Trotter JJ.A.

BETWEEN

Marion Ruth Pepper and James Allen Pepper

Plaintiffs (Respondents)

and

Douglas Brooker

Defendant
    (Appellant)

AND BETWEEN

Douglas Brooker

Plaintiff (Appellant)

and

James Allen Pepper and Marion Ruth Pepper

Defendants (Respondents)

Barry Yellin, for the appellant, Douglas Brooker

Peter Quinlan, for the respondents, James Allen Pepper
    and Marion Ruth Pepper

Heard: March 17, 2017

On appeal from the order of Justice R. John Harper of the
    Superior Court of Justice, dated April 13, 2015, with reasons reported at 2015
    ONSC 142.

Trotter J.A.:

A.

Overview

[1]

This appeal arises from a boundary dispute between two cottage owners.
    Over a number of years, James and Marion Pepper built a road on their land and
    made other improvements. When Douglas Brooker discovered that some of the work
    had been performed on his adjacent lot, he claimed damages for trespass. The
    Peppers brought a separate action, claiming title to the disputed lands by
    adverse possession.

[2]

Both actions were tried together. Mr. Brookers claim was dismissed. The
    Peppers succeeded in obtaining title to roughly 3,400 square feet of Mr. Brookers
    land. They were also awarded the bulk of their costs on a substantial indemnity
    basis.

[3]

Mr. Brooker appeals. He accepts that there was a mutual mistake
    concerning the true boundary line separating the properties. However, he
    contends that the claim for adverse possession ought to have failed because the
    Peppers did not establish that they had effectively excluded him from the
    disputed lands. He also argues that the trial judge erred in dismissing his
    action. Lastly, Mr. Brooker argues that costs should not have been awarded on a
    substantial indemnity basis.

[4]

For the reasons that follow, I would allow both of Mr. Brookers
    substantive appeals. As a result, all aspects of the judgment at trial,
    including the costs order, must be set aside.

B.

the facts

(1)

The Cottage Properties

[5]

The properties are situated on the shoreline of Lake Erie, in Norfolk
    County. The Peppers own Lots 2 and 3. They have a cottage on Lot 2. Lot 3, to
    the east, is vacant. Mr. Brooker has a cottage on Lot 4.

[6]

The lots are part of a group of properties known as Avalon Park. The
    cottages sit at the top of a steep descent, bordered by Charlotte Street to the
    north. Moving south, beyond a bank, the land slopes 90 feet down to the water.

[7]

The Peppers acquired Lots 2 and 3 from Ms. Peppers mother (Mrs. Ruth
    Pond) in 2002. Mrs. Pond had acquired the lots in 1970 and 1973, respectively. Mr.
    Brooker purchased his property in 1987.

(2)

The Boundary Line

[8]

Mrs. Pond and the Peppers believed that the boundary between Lots 3 and
    4 followed a straight line from a maple tree at the north end of the property,
    and descended down the slope to a willow tree close to the shoreline. Subsequent
    events would reveal that this was not accurate. The maple-willow line cut
    across Mr. Brookers property, quite substantially.

(3)

Building on the Land

[9]

The Peppers testified that, due to the steep slope of the land, the
    shoreline was virtually inaccessible from their cottage. In 1982, they started
    to dump fill onto their property to eventually alter the grade of the land down
    to the water. The Peppers owned a transport and heavy equipment business and
    used dump trucks and graders from this business to fill in the land. They
    estimated that, over the years, they dumped 600-700 truckloads of dirt fill. By
    2003, they had constructed a road made of dirt fill that allowed direct access
    from their cottage to the shore. However, as work on the road continued over
    the years, it drifted in an easterly direction onto Mr. Brookers lot, although
    no one realized it at the time.

[10]

Mr. Brooker disputed that the shoreline had been previously inaccessible
    from his and the Peppers cottages. He testified that he and his dog frequently
    negotiated the slope on his lot (Lot 4) to get to the beach. Given the contradictory
    answers Mr. Brooker gave during his discovery evidence (
i.e.
,
he
    said that he accessed the lake by going further east onto Lot 5), the trial
    judge rejected this aspect of his evidence.

[11]

In 2004, the Peppers started construction on a seawall to protect the land
    from erosion caused by the tides of Lake Erie. The Peppers were concerned that
    they would lose the fill they had dumped over the years. Among other things,
    the Ministry of Natural Resources required that the Peppers obtain Mr. Brookers
    consent to perform this work. When the Peppers asked Mr. Brooker if he would
    consent, he had said that he would think about it. He stalled the Peppers for
    about a year.

[12]

Mr. Pepper testified that he saw Mr. Brooker outside one day. He
    approached Mr. Brooker with a partially completed consent form in hand. Mr. Brooker
    signed the form and the work on the seawall commenced shortly afterwards.

[13]

Mr. Brooker disputed this version of events. He acknowledged that Mr.
    Pepper asked his consent to build the seawall. But he said that he did not
    trust the Peppers and claimed to have signed a blank piece of paper on the day
    he was approached by Mr. Pepper. The trial judge rejected this evidence.

[14]

The seawall project was significant. In fact, two walls were built. The
    first one is 10-feet high and runs 120 feet along the shoreline. One thousand tons
    of gabion stone was used in this phase, which was completed in 2005. The second
    seawall, which is 20 feet long, was built just east of the first one. This was
    completed in 2009.

[15]

In the early 2000s, the Peppers acquired a set of steps from a car
    dealership. They stored the stairs north of where the land slopes. In 2010, the
    Peppers moved the stairs down to the bottom of the road they built. The stairs
    allow access from the end of the road down to the larger of the two seawalls.

(4)

Resolving the Boundary Issue

[16]

As noted above, the Peppers thought the boundary between Lots 3 and 4
    ran along the maple-willow line. In an attempt to impugn the Peppers claim, Mr.
    Brooker testified that
he
planted the willow tree near the shoreline
    in 2000. The trial judge rejected Mr. Brookers evidence on this point.

[17]

Mr. Brooker also testified that he had previously put stakes along the
    true property line, as well as erecting two fences: a snow fence starting above
    the slope and continuing slightly down it and a green chain link fence half way
    down the slope. He testified that the fences must have been destroyed during
    the Peppers construction of the road. Again, Mr. Brookers evidence was
    rejected.

[18]

In 2012, Mr. Brooker hired a surveyor to ascertain the true boundary
    between Lots 3 and 4. As it turned out, some of the graded work, including the
    road, the staircase, part of the first seawall, and the entirety of the second
    seawall were on Lot 4. This was not disputed at trial.

(5)

Use of the Completed Road

[19]

The Peppers did not prevent other members of the Avalon Park community
    from using their road and steps to access the shoreline. They erected no
    fences. Prior to the commencement of legal proceedings with Mr. Brooker, they
    did not display a No Trespassing sign. However, Mr. Pepper placed large rocks
    at the top of the driveway to stop cars from being driven down the road and
    becoming stuck.

[20]

Mr. Pepper testified he did not consider people who used the road to
    access the shoreline to be trespassers. As he testified:

Q:
Alright and you say they wouldnt be
    trespassing.           Do you mean that you would not object to      neighbours
    using your property to access to the         lake?

A.:
No, it would not.

[21]

The issue was addressed again in cross-examination. Mr. Pepper gave the
    following evidence:

Q.:
Do
    other members of the community use the staircase?

A.:
They were welcome to, yes.

Q.:
Alright,
    did you offer any sort of written confirmation that they could, or did you
    offer anything to anybody?

A.:
Yes,
    I told them all if they want to use anything there, go ahead and use it. Just
    my family could not use it.

This evidence was confirmed by a neighbour, Jane
    Curtis, who said that the Peppers offered us that opportunity.

[22]

The Peppers made no effort to exclude Mr. Brooker from using of the road
    and steps. Mrs. Pepper said that, while she would exchange pleasantries with Mr.
    Brooker when she saw him at the supermarket, she never spoke to Mr. Brooker at
    Avalon Park. Mrs. Pepper also gave the following testimony:

Q.:
Did you ever exclude Doug Brooker from your           property?

A.:
Exclude him from it?

Q.:
Did you ever tell him he couldnt stand on your           property?

A.:
I never did, I never spoke to him, no.

Q.:
Alright, so you never spoke to Brooker aside
    from   maybe idle chit chat at the supermarket?

A.:
Yes, I said hello to him, I think, yes, thats
    it.

. . .

Q.:
So you never had a substantive conversation I           should
    say?

A.:
I never did, no.

[23]

Mr. Brooker testified that he was never told that he could not use the
    disputed lands. He gave the following testimony on this issue:

Q.:
Did
    James Pepper ever tell you that you couldnt access the land  any part of that
    land?

A.
:      No, he didnt.

Q.
:     Did
    Ruth Pond ever tell you that you couldnt access any part of that land?

A.:
No.

Q.:
Did
    Marion Pepper ever tell you that you couldnt access any part of your land?

A.:
No.

[24]

The trial judge did not refer to any of this evidence in his reasons.

(6)

Brookers Claim for Damages

[25]

Mr. Brooker initially claimed $200,000 in general damages, $50,000 for
    trespass, and punitive damages in the amount of $50,000. This claim represented
    the diminution in value of Mr. Brookers property and/or the cost to remove the
    infringing modifications.

[26]

During his examination for discovery, Mr. Brooker said that he would not
    attempt to reverse any of the work performed by the Peppers, with the exception
    of the stairs situated at the end of the roadway. He testified that he wished
    to have the stairs completely covered or removed because it created a liability
    for him. Mr. Brooker maintained the same position at trial, claiming that he did
    not want to create accessibility for others on the shoreline.

[27]

Two real estate appraisers testified about changes to the value of Mr. Brookers
    land as a result of the Peppers modifications. Mr. Brookers witness
    calculated that the lost value was roughly $56,000. The Peppers appraiser testified
    that the land in question was essentially valueless before the modifications.

C.

the trial judges reasons

[28]

The trial judge found that the Peppers and Mr. Brooker were mutually
    mistaken about the location of the property line between Lots 3 and 4. He
    concluded that the Peppers occupied the disputed lands through their filling
    and grading work between 1982 and 2003. The trial judge observed that construction
    of the seawalls started in 2000. In fact, construction on the seawalls started
    in 2004, and the stairs were moved to the bottom of the road in 2010.

[29]

In setting out the elements of adverse possession, the trial judge relied
    heavily on this courts decision in
Teis v. Ancaster (Town)

(1997), 35 O.R. (3d) 216 (C.A.)
. Specifically, he focused
    on those passages of the judgment dealing with the concept of inconsistent use.
    The trial judges critical findings are found in paragraph 34 of his reasons:

I find that Mr. Brooker's failure to
    say anything to the Peppers over far in excess of the ten year period
    allows me to draw the inference that he was mistaken with respect to the lot
    lines of Lot 3 and Lot 4.
I find that this mutual mistake allows me to draw
    the inference that the Peppers intended to occupy parts of Lot 4 in
    which they built the sea wall and stairs with the intention to exclude all
    others, including the owner Mr. Brooker.
As a result of my findings, I
    am satisfied that the Peppers have obtained title to the parts of Lot
    4 that are outlined in yellow in the survey filed by the Peppers as
    Exhibit 1. This part of Lot 4 represents the area in which all of the
    improvements that were made by the Peppers are situated. The Peppers are
    to obtain a proper survey to provide a metes and bounds description that will
    allow for the appropriate order to be drafted and registered on title. [Emphasis
    added.]

[30]

Given his finding that the Peppers adverse possession claim was made
    out, the trial judge dismissed Mr. Brookers claim for trespass. He observed
    that, in any event, Mr. Brooker was only concerned about removing the stairs.

[31]

Finally, the trial judge awarded partial indemnity costs to the Peppers up
    to the date of an offer they made under Rule 49.10 and substantial indemnity
    costs thereafter.

D.

analysis

(1)      The Adverse Possession
    Claim

[32]

All issues raised on this appeal turn on the correctness of the trial
    judges application of the law of adverse possession. The elements of adverse
    possession were recently stated in
McClatchie v. Rideau Lakes (Township)
,
    2015 ONCA 233, 333 O.A.C. 381, in which Rouleau J.A. said at paras. 9-11:

To establish adverse possession of certain
    lands, a claimant must demonstrate that throughout the ten-year adverse
    possession period, he or she: a) had actual possession of the lands in
    question; b) had the intention of excluding the true owner from possession;
and
    c) effectively excluded the true owner from possession
:
Masidon
    Investments Ltd. v. Ham
(1984), 45 O.R. (2d) 563
    (Ont. C.A.), at p. 567.

An adverse possession claim will fail
    unless the claimant meets each of the three criteria
, and time will begin to run against the true owner of the lands
    only from the last date when all three are satisfied:
Masidon
, at p. 567.

To establish actual possession, the acts of
    possession must be "open, notorious, peaceful, adverse, exclusive, actual
    and continuous":
Teis v. Ancaster (Town)
(1997), 35 O.R. (3d) 216 (Ont. C.A.), at p. 221.
If
    any one of these elements is missing at any time during the statutory ten-year
    period, the claim for possessory title will fail
:
Teis
, at p.
    221. [Emphasis added.]

[33]

The critical issue is whether the Peppers modifications to the disputed
    lands on Lot 4 effectively excluded Mr. Brooker from possession of those parts
    of his property. Although the trial judge found that the Peppers
intended
to
    exclude all others, including the owner Mr. Brooker, he failed to find that
    the Peppers had
effectively
excluded Mr. Brooker from the property. There
    was no evidence to support the claim that they had effectively excluded him, nor
    anyone else for that matter. The evidence suggests the opposite. This is fatal
    to the Peppers claim.

[34]

As noted in para. 29 above, the trial judge relied heavily on parts of
Teis
.
    The issue in
Teis
was whether the inconsistent use requirement  a
    facet of the intention to exclude criterion requiring the claimants use of the
    land to be inconsistent with the title holders intended use  applies in cases
    of mutual mistake. After reviewing the development of the concept of
    inconsistent use, Laskin J.A. held, at p. 224-25, that it does not. Rather, in
    cases of mutual mistake the court may reasonably infer, as indeed I infer in
    this case, that the claimantsintended to exclude all others, including the
    paper title holder:
Teis
, at pp. 226-27.

[35]

Applying
Teis
, the trial judge reasoned that because the
    parties were mutually mistaken about the boundary between Lots 3 and 4, he
    could draw the inference that the Peppers intended to occupy parts of Lot
    4with the intention to exclude all others, including the owner Mr. Brooker.

[36]

This finding was not challenged on appeal. However, I pause to observe
    that this finding  an intention to exclude  appears to be at odds with the
    evidence. No one, and certainly not Mr. Brooker, was prevented from using the
    road and steps to access the shoreline. This ought to have led the trial judge
    to conclude that the Peppers had failed to establish an intention to exclude.

[37]

But even assuming that finding can stand, there exists a more
    fundamental problem. An intention to exclude the true owner of a property is
    just one part of the adverse possession equation. An adverse possession
    claimant must succeed in his or her intention by achieving effective exclusion
    from the property, even in cases of mutual mistake:
Shennan v. Szewczyk
,
    2010 ONCA 679, 96 R.P.R. (4th) 190.

[38]

In
Shennan
, the court dealt with a property dispute between
    cottage owners. The trial judge had dismissed a claim for adverse possession.
    He found that it was not a case of mutual mistake because, over the critical
    years, nobody really cared where the boundary separating the two cottage
    properties was situated. On appeal, the trial judges finding on the mutual
    mistake issue was affirmed. However, the court addressed the issue of effective
    exclusion (at para. 20):

In any event, the criterion of effective
    exclusion of the true owner throughout the 10-year period remains a
    requirement, even in cases of mutual mistake.
We do not read the decisions
    of this Court in
Key

[Key v. Latsky
(2006), 206 O.A.C. 116]
and
Teis
as reading the "effective exclusion
    of the true owner" criteria out of the adverse possession requirements in
    cases involving mutual mistake.
Neither case dealt
    with the effective exclusion requirement, and nothing was said in the reasons
    of the Court in either case to rule it out in cases of mutual mistake. [Emphasis
    added.]

The court upheld the trial judges finding that there
    was no evidence that the true owners were excluded from the land, noting: That
    is what was required.

[39]

The holding in
Shennan
 that effective exclusion is an element
    of adverse possession, even in cases of mutual mistake  was affirmed in
Sumner
    v. Sullivan
, 2014 ONCA 869, 49 R.P.R. (5th) 167, at para. 3, and in
Barbour
    v. Bailey
, 2016 ONCA 98, 66 R.P.R. (5th) 173, leave to appeal refused,
    [2016] S.C.C.A. No. 139, at para. 47.

[40]

The trial judge failed to make an explicit finding on whether the
    Peppers effectively excluded Mr. Brooker from the disputed portions of Lot 4.
    It is not otherwise implicit in his reasons. Allowing the Peppers adverse
    possession claim without a finding of effective exclusion was an error of law:
    see
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36;
    and
Canada (Director of Investigation and Research) v. Southam Inc.
,

[1997]
    1 S.C.R. 748, at para. 39.

[41]

While this conclusion is sufficient to resolve the main issue on appeal,
    I note that the timing of the Peppers construction also bars their adverse
    possession claim over the part of Lot 4 on which the seawalls were built.

[42]

As mentioned above, a claimant must meet all three of the adverse
    possession criteria for a ten-year period. However, that ten-year period cannot
    run past the date on which a piece of land is registered in the land titles
    system:
Land Titles Act
, R.S.O. 1990, c. L.5, s. 51(2); and
Real Property
    Limitations Act
, R.S.O. 1990, c. L.15, s. 4. As this court recently
    explained in
Sipsas v. 1299781 Ontario Inc.
, 2017 ONCA 265, at para.
    18:

Although title to lands registered in Land Titles cannot be
    obtained by adverse possession following the registration of title, title may
    be obtained by adverse possession that can be established for a continuous
    period of 10 years prior to registration: s. 51(2) of the
Land Titles
    Act
, R.S.O. 1990, c. L.5 and s. 4 of the
Real Property
    Limitations Act
, R.S.O. 1990, c. L.15.

[43]

Lot 4 was registered in August 2007. Thus, to be successful, the Peppers
    had to show that all the elements necessary to their adverse possession claim
    were present for at least ten years, ending in August 2007.

[44]

The landfill work commenced in 1982, well within the limitation period.
    However, the construction of the seawalls and the re-location of the stairs did
    not occur until much later, falling short of the ten-year threshold. The
    Peppers argue that these subsequent improvements were erected within the
    confines of the disputed lands already treated by the Peppers as their own.

[45]

This position has some resonance in relation to the relocated stairs,
    which were essentially an extension of the road built on Mr. Brookers land.
    However, I would not apply this line of reasoning to the construction of the
    seawalls, which were separate projects that extended the incursion of Mr. Brookers
    land in a different and significant way. Because construction of the seawalls began
    in 2004, the time had long since passed for the Peppers to obtain title by
    adverse possession.

(2)      The Appropriate Remedy

[46]

At the hearing of the appeal, counsel for the Peppers argued that,
    should the court conclude that the trial judges reasons were found wanting for
    failing to address the element of effective exclusion, a new trial should be
    ordered. Counsel for Mr. Brooker argued that, because there was no evidence to
    support a finding of effective exclusion, trial judges order should be set
    aside and title in the disputed lands restored to Mr. Brooker.

[47]

I would decline to order a new trial. There was no evidence that could
    support a finding that Mr. Brooker was excluded from his own property. Being
    good neighbours and members of the Avalon Park community, the Peppers permitted
    others, including Mr. Brooker, to take advantage of their improvements,
    designed to create access to the waterfront. Perhaps paradoxically, this
    generosity proved to be fatal to their adverse possession claim. Comparable
    adverse possession claims have failed for similar reasons: see e.g.
Shennan
;
Chen v. Stafford
, 2012 ONSC 3802, 23 R.P.R. (5th) 101; and
Sumner
    v. Sullivan
, 2014 ONSC 1706, 41 R.P.R. (5th) 189. To order a new trial
    would unfairly provide the Peppers with another opportunity to establish their
    claim.

[48]

Consequently, I would set aside that portion of the trial judges
    Amending Judgment (dated May 30, 2016) that conveys entitlement in the disputed
    lands to the Peppers by adverse possession.

(3)

The Trespass Claim

[49]

Based on his findings concerning the adverse possession claim, the trial
    judge dismissed Mr. Brookers action in trespass. In light of my conclusion on the
    adverse possession issue, the dismissal of the trespass action cannot stand.
    The evidence established the elements of the tort: see Rainaldi et al.,
Remedies
    in Tort
(Toronto: Thompson Reuters, 1987), at pp. 23-11, 23-12. However, I
    see no reason to depart from the trial judges conclusion that Mr. Brooker
    suffered no damages as a result of the Peppers extensive improvements to both
    lots. Moreover, counsel for Mr. Brooker abandoned his damages claim at hearing
    of the appeal. Consequently, I would make no damages award.

(4)      Costs Awarded At Trial

[50]

Given the manner in which I have disposed of the substantive issues on
    this appeal, the trial judges costs award against Mr. Brooker must be set
    aside. In my view, Mr. Brooker is entitled to his costs arising from that
    proceeding. However, counsel on appeal did not make submissions on this issue.

[51]

If counsel are unable to agree on the costs of trial, I would direct them
    to file brief written submissions. Counsel for Mr. Brooker may file written
    submissions no longer than 5 pages in length, along with a Bill of Costs, within
    10 days of the release of this judgment. Counsel for the Peppers will have 7
    days from the receipt of Mr. Brookers materials to file submissions no longer
    than 5 pages in length.

E.

disposition

[52]

I would therefore allow the appeal and set aside the order below. I
    would award Mr. Brooker his costs of the appeal in the amount of $10,000,
    inclusive of disbursements and HST.

Released:

GE                                                    G.T.
    Trotter J.A.

JUN 26 2017                                     I agree
    Gloria Epstein J.A.

I
    agree M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Persaud v. Telus Corporation, 2017 ONCA 479

DATE: 20170609

DOCKET:
C62092

Laskin, Lauwers and Brown JJ.A.

BETWEEN

Jan Persaud and Natpak Enterprises Inc.

Plaintiffs (Appellants)

and

Telus Corporation, Telus Mobility and
    Telus Enterprise Solutions

Defendants (Respondents)

Karen Zvulony, for the appellants

Todd Weisberg, for the respondents

Heard: May 4, 2017

Appeal from the judgment of the
    Honorable Justice Benjamin T. Glustein of the Superior Court of Justice, dated
    April 5, 2016, with reasons reported at 2016 ONSC 1577
.

Lauwers J.A.:

[1]

The appellant, Jan Persaud, was employed by
    Telus Corporation. She resigned on May 19, 2004 and then sued the respondents
    for constructive dismissal, for damages for intentional infliction of mental
    suffering, and for inducing breach of contract. Her action was dismissed. For
    the reasons that follow, I would dismiss the appeal.

A.

Factual Overview

[2]

The appellant started her employment with a
    predecessor of the respondent on January 13, 1997. She worked in various
    positions, and after April 23, 2003 worked as the Java Developer on the Product
    Development team.

[3]

The appellant resigned two days after the
    resignation of her friend and mentor, Navaid Mufti, who was also her superior
    for most of her career at Telus.

[4]

I now turn to the appellants arguments on
    appeal.

B.

The constructive dismissal claim

[5]

The appellant claims constructive dismissal on
    the basis of a significant change in her working conditions, specifically an increase
    in her working hours. She also claimed there was a poisoned work environment.
    The two grounds drove her to resign. She submits that this entitled her to
    damages for constructive dismissal in accordance with the principles in
Potter
    v. New Brunswick Legal Aid Services Commission
, 2015 SCC 10,
[2015] 1 S.C.R. 500.

[6]

The trial judge agreed that either of these
    grounds could, in the right case, establish constructive dismissal. However, he
    dismissed the constructive dismissal claim for two reasons. First, he found
    that the appellant did not leave her employment because of changes to her
    working conditions. He noted, at para. 115:

I find that Persaud resigned because she was dissatisfied with
    the management of Telus, unhappy with the direction the company was taking,
    critical of the performance evaluation structure, and particularly unhappy with
    Telus' treatment of Mufti, her friend and mentor. She did not resign because of
    increased hours or a poisoned work atmosphere.

[7]

This conclusion was fatal, since, as the trial
    judge stated, at para. 35: an employee cannot claim damages for constructive
    dismissal when there is no causal link to the reason for the resignation, even
    if there has been a unilateral change to an essential claim of the contract.

[8]

The appellant argues the trial judge erred in
    law in finding the reasons for the resignation must be related to the
    constructive dismissal.

[9]

I disagree.

[10]

The requirement for a causal link between the
    breach of contract and the damages suffered by the plaintiff is an essential
    element of a breach of contract claim. It is trite law and applies in
    constructive dismissal cases. The trial judge cited the correct legal
    principles at paras. 32-34.

[11]

The appellant argues alternatively that the
    causation element could have been met had the trial judge considered it possible
    to combine the changes in working conditions with her distress at Mr. Muftis
    departure. His failure to do so was a palpable and overriding error.

[12]

I agree that such a finding was open to the
    trial judge on the evidence. But the idea that Mr. Muftis departure was the
    proverbial tipping point for her resignation was addressed by the trial judge
    at para. 117, and he dismissed it on the evidence. The appellant has not
    demonstrated that he made a palpable and overriding error in doing so.

[13]

The trial judges second ground for dismissing
    the constructive dismissal claim is that the appellant acquiesced in or
    condoned the changes in her working conditions, particularly the increased number
    of hours she was required to work.

[14]

If an employee consents to or acquiesces in the
    change to an essential term of the employee contract, it will not amount to a
    constructive dismissal:
Potter
,
at para. 37.
    The case law recognizes that an employee faced with a unilateral change by an
    employer in the essential working conditions is to be given some time to notice
    the change and then to consider how best to respond. The trial judge set out
    the principles of law at paras. 39-42 of his reasons, and concluded, at para.
    43:

An employee is entitled to a reasonable period of time to
    assess his or her circumstances and make an election. However, a considerably
    extended period of time will preclude an action for constructive dismissal. In
    most circumstances, courts will view an employee's willingness to remain in the
    altered position for a significant period of time as acceptance of the new
    terms, absent other mitigating factors. [Citation omitted.]

[15]

There is no legal error in this statement.

[16]

The trial judge assessed the evidence regarding the
    appellants workload at para. 98 and following. The evidence shows that the
    appellant was under increased workload demands from 2002 until her resignation
    in May 2004. There is no doubt that she raised the issue of workload on a
    number of occasions and actively sought a transfer out of the Product Development
    team to a position that would be less demanding.

[17]

Counsel points out that one of the appellants
    coworkers resigned in the spring of 2003 and was not replaced until September
    2003. The appellant was responsible for training the coworkers replacement,

Santhalingam Jeyagaran ("Jey").
The
    appellants evidence was that Jeys hiring did not permit her to reduce her
    working hours, as she expected. Counsel argues that after Jeys training was
    complete in November or December 2003, it was appropriate for the appellant to
    have a period of time within which to evaluate the situation.

[18]

It was open to the trial judge, on the evidence,
    to reach that conclusion, but he did not, in part because the appellant
    remained silent on the workload issue between January 2004 when she requested a
    transfer and was refused, and the date of her resignation in May. The trial
    judge found that the reason for the appellants departure was not the
    employers failure to address the workload issue, but her own evidence, which
    he describes in paras. 112-13:

Persaud's evidence was that she "would have stayed"
    if Mufti had not left and otherwise "gone to IT" if that "wasn't
    an option".

Persaud's evidence in cross-examination on this question
    changed each time she was asked. She first said she would have stayed if Mufti
    had stayed, because her concerns of additional workload would not have arisen.
    When asked to confirm that she would have stayed if Mufti had stayed, she
    answered "absolutely", but then paused and added that she would have
    wanted a transfer to the "IT Group".

[19]

I see no palpable and overriding error in the
    trial judges evaluation of the evidence on this point nor in his conclusion
    that the workload issue had gone on long enough to establish that the appellant
    had condoned it.

C.

Intentional Infliction of Mental Distress

[20]

The trial judge summarized the law relating to this
    tort at paras. 138-39:

The required elements of the tort of intentional infliction of
    mental suffering are (i) the conduct was flagrant and outrageous; (ii) the
    conduct was calculated to cause harm; and (iii) the conduct resulted in a
    visible and provable illness or injury.

With respect to the second requirement that the conduct is
    calculated to cause harm, the defendant must intend to cause such harm, or,
    such harm must be known by the actor to be substantially certain to follow from
    his or her behaviour. As an intentional tort, this element cannot be satisfied
    on an objective standard of "reasonable foreseeability" or
    "recklessness". [Citations omitted.]

[21]

After the appellants departure, some software
    glitches appeared in the program for which she was primarily responsible. Her
    successor, Jey, led an investigation into the glitches. His report concluded
    the glitches were the product of sabotage. The report pointed the finger at
    either the appellant or Mufti.  A copy of the report was delivered to the
    police but no charges were laid.

[22]

The appellant says that Jeys report was
    incompetently done, since Jey was not an expert. She submits he had an interest
    in the outcome. She complains that she was not interviewed as part of the
    investigation. She asserts that it was not technically possible for her to have
    been the saboteur. She did not, however, tender an expert report to that effect.

[23]

Following a lengthy recitation of the evidence,
    the trial judge concluded, at para. 204, that there is no basis to find that
    Telus acted in bad faith or in an unfair manner, or engaged in any conduct
    that was flagrant and outrageous. The investigation was prompted by a
    serious breach of its IP Biller/Collector system causing a loss of significant
    revenue (at para. 205) and further, the trial judge concluded that Telus had
    a good faith basis to conclude that Persaud was the author of the sabotage (at
    para. 207). He did not, however, make a finding that the appellant was in fact
    the saboteur, assuming there was one.

[24]

At para. 208, the trial judge said, I do not
    accept the plaintiffs submission that the Report can be said to be in bad
    faith or outrageous simply because Telus did not seek external consultants or
    did not contact Persaud before preparing the Report. Finally, he said that,
    even if the conclusions in the report were wrong (an issue I do not decide),
    the conduct by Telus would be, at worst, an honest mistake (at para. 209).
    His review of the evidence substantiated his conclusion, expressed at para. 142,
    that
neither of the first two requirements to establish the tort of
    intentional infliction of mental suffering (
i.e.
, flagrant or
    outrageous conduct or intention to cause harm) was established on the facts of
    this case.

[25]

The appellant has not established that the trial
    judge made an error of law, or a palpable and overriding error in his
    evaluation of the facts.

D.

Inducing Breach of Contract

[26]

The trial judge set out the principles of law
    relating to this cause of action at paras. 212-14. Four elements must be
    established by the plaintiff:

1.

T
he defendant had knowledge of the
    contract between the plaintiff and the third party;

2.

The defendant's conduct was intended to cause the third party to
    breach the contract;

3.

The defendant's conduct caused the third party to breach the
    contract; and

4.

The plaintiff suffered damages as a result of the breach.

See
Correia v. Canac Kitchens
, 2008 ONCA 506,
    91 O.R. (3d) 353, at para. 99;
1670002 Ontario Limited (Canadian
    Professional Recruiters) v. Redtree Contract Carriers Ltd.
, 2014 ONCA 501,
    323 O.A.C. 128, at para. 14.

[27]

In January and February 2005, an outfit called
    TekSystems had an opportunity to provide services to Telus in Edmonton. The
    proposal was that the appellant would do the work and provide her services through
    her consulting company, Natpak. The appellant was interviewed by telephone by
    Telus representatives from Edmonton. There was a subsequent exchange of
    material with TekSystems working towards a contract between TekSystems and Natpak.
    The appellant signed the agreement but there is no evidence that TekSystems did
    so. In mid-February, the appellant was advised by TekSystems that Telus had decided
    not to engage her services on the Edmonton project.

[28]

The trial judge noted, at para. 237, that the
    appellant, who had the onus of proof, chose not to call a witness from
    TekSystems or Telus on this issue. He found, at para. 229, that the evidence
    does not support the appellants assertion that there was a valid and
    enforceable contract as signed terms were offered and accepted orally. He added,
    at para. 239:
Even if the first two elements of the tort of inducing
    breach of contract could be established (
i.e.
there was a contract
    between Natpak and TekSystems and Telus knew of it), the plaintiffs have not
    proven that Telus intended to cause the breach of the contract.

[29]

The trial judge made no error of law in his
    specification of the legal test, nor did he make a palpable and overriding error
    in his assessment of the evidence.

E.

Disposition

[30]

The appeal is dismissed with costs payable by
    the appellant to the respondent in the amount of $15,000, inclusive of
    disbursements and taxes.

Released: PL JUN 09 2017

P. Lauwers J.A.

I agree. John Laskin
    J.A.

I agree. David Brown
    J.A.


WARNING

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

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

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

(a)      any
    of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.G., 2017 ONCA 474

DATE: 20170608

DOCKET: C63367

Tulloch, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.G.

Appellant

Yoni S. Rahamim, for the appellant

Andrew J. Hotke, for the respondent

Heard and released orally: June 5, 2017

On appeal from the conviction entered by Justice Irving
    W. André of the Superior Court of Justice on February 26, 2016, with reasons
    reported at 2016 ONSC 1406, and the sentence imposed on December 15, 2016.

REASONS FOR
    DECISION

[1]

The appellant appeals his conviction for sexual interference and seeks
    leave to appeal his sentence of 22 months, less credit for pre-sentence
    custody.

[2]

On his conviction appeal, the appellant raises an issue concerning the
    DNA testing of the complaints underwear. He states the reasons of the trial judge
    record two different officers describing different coloured underwear. However,
    we see no suggestion in the reasons that the DNA testing was performed on the
    wrong set of underwear.

[3]

The appellant also submits the trial judge erred in not accepting his evidence
    that he was at his auto shop at the time the complainant alleged she was
    assaulted. He argues the trial judge should have believed him. We do not accept
    this submission. The trial judge gave detailed reasons why he did not accept
    the appellants evidence. We see no reversible error.

[4]

We dismiss the appeal from conviction.

[5]

The appellant was not represented by counsel at his sentencing hearing.
    Duty counsel, on behalf of the appellant, submits the sentencing judge made two
    related errors: (i) he treated lack of remorse as an aggravating factor; and,
    (ii) he improperly used information from the pre-sentence report in his
    analysis as evidence of extreme lack of remorse. In this regard, duty counsel
    specifically points to the statement in the sentencing reasons: [The
    appellant] manifested a great deal of hostility to women during the course of
    his interview with the probation officer. It is unclear whether the pre-sentence
    report was marked as an exhibit.

[6]

We agree the sentencing judge erred in principle by treating the absence
    of remorse by the appellant as an aggravating factor. However, we are not
    persuaded that error had an impact on the sentence such as to justify the
    imposition of a lesser sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089,

at para. 44. The sentence of 22 months imprisonment
    imposed by the sentencing judge was justified in light of the young age of the
    victim, the appellants breach of trust toward the victim, the serious impact
    of the offence on the victim, and the appellants prior criminal record.

[7]

We would grant the appellant leave to appeal his sentence, but we would
    not interfere with the sentence imposed on the appellant. His appeal from
    sentence is dismissed.

M. Tulloch J.A.

P. Lauwers J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bellaire, 2017 ONCA 511

DATE: 20170616

DOCKET: C62783

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rodney Bellaire

Appellant

Philip Norton, for the appellant

Kevin Rawluk, for the respondent

Heard: June 15, 2017

On appeal from the conviction entered on July 11, 2016
    and the sentence imposed on July 11, 2016 by Justice Gregory P. Rodgers of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues three grounds of appeal.

[2]

One, he submits that the trial judge misused the hospital report by
    relying on it for its truth. We disagree. The reasons of the trial judge do not
    support the appellants submission. The complainant testified to the
    inconsistencies in her own evidence. She also confirmed that the appellant gave
    her a false story to relay.

[3]

Two, the appellant submits that the trial judge was required to make a
    factual finding whether the appellant threw the knife at the complainant or
    stabbed her. We disagree. The real issue was whether the injury was
    accidentally or intentionally inflicted. The appellants explanation defied
    credulity and did not require a specific finding on how the complainant was
    assaulted. The trial judges finding that the injury was intentionally
    inflicted was sufficient.

[4]

Three, the appellant submits that the trial judge failed to properly
    caution himself about the complainants admissions of public mischief and
    perjury. As the appellant acknowledges a trial judge sitting alone is not
    required to self-instruct on
Vetrovec
. The trial judge appropriately
    did caution himself on the complainants previous false accusations.

[5]

In connection with this last ground we decline to admit the fresh
    evidence about the appellants full criminal record. The complainants previous
    false accusations and even her admission of lies in court were before the
    trial judge. The fresh evidence is not sufficiently cogent that it could
    reasonably be expected to have affected the verdict.

[6]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bye, 2017 ONCA 528

DATE: 20170626

DOCKET: C58843

Strathy C.J.O., Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Bye

Appellant

Timothy E. Breen, for the appellant

Shawn Porter, for the respondent

Heard: June 20, 2017

On appeal from the conviction entered by Justice J.R.
    McIsaac of the Superior Court of Justice, sitting with a jury, dated October
    17, 2013.

REASONS FOR DECISION

[1]

The appellant, David Bye, and Robin Browett, were cellmates at the
    Central North Correctional Centre. On December 13, 2011, the unit was on
    lockdown. The two inmates had been confined to cell 10 for more than 24 hours. As
    corrections officers began a cell by cell search of the unit for contraband, they
    began with the cell next to the appellants. While performing that search, they
    were summoned to cell 10 by the appellant, who was yelling that Mr. Browett had
    passed out. When they entered the cell, they discovered the appellant holding
    Mr. Browett, who was lying on the floor and shaking, with obvious head trauma. Mr.
    Browett was transported to hospital and underwent surgery to relieve pressure
    caused by a subdural hemorrhage. He had a large skull fracture on the right
    side of his head and a small contusion on the opposite side of his brain,
    attributed to the brain bouncing against the opposite side of the skull. The
    surgeon who performed the surgery was of the opinion that a significant amount
    of force would be required to cause such a fracture, and although such an
    injury could conceivably result from falling, it was unlikely that a single fall
    would result in the injuries observed.

[2]

The appellant denied assaulting Mr. Browett. Mr. Browett, who was
    conscious before being transported to hospital, also denied being assaulted.

[3]

The appellant was convicted by a jury of aggravated assault. He appeals
    his conviction on the basis that the trial judge made the following errors:

1.       admitting
    expert evidence on the identification of footwear impressions on Mr. Browetts
    face, and failing to caution the jury on the use of that evidence;

2.       failing
    to adequately instruct the jury on the use of inconsistencies in the
    appellants statements as evidence of guilt;

3.       not
    providing a proper response to the jurys request for a legal definition of
    reasonable doubt.

For the reasons set out below, we do not agree that the
    trial judge erred, and would dismiss the appeal.

Analysis:

(1)

Admissibility of expert evidence

[4]

John Norman, a civilian employee of the O.P.P, was qualified to give
    expert opinion evidence in relation to footwear examination and comparison. He
    addressed two issues: (1) whether there was evidence of footwear impressions on
    Mr. Browetts face, and (2) whether shoes located in the cell could be identified
    as the source of the impression. From his review of photographs of Mr.
    Browetts face, Mr. Norman concluded that the pattern of bruising could be
    footwear impressions. He also concluded that he could not rule out one of Mr.
    Browetts shoes found in the cell as the cause of the impressions on Mr.
    Browetts face.

[5]

The trial judge admitted the evidence and, in his charge to the jury,
    characterized Mr. Normans findings as inconclusive and, as such, may not be
    of any assistance in resolving this case.

[6]

The appellant objected to the admission of this expert evidence on the
    basis that it failed to meet the requirements of logical and legal relevance,
    in part, because the photograph from which Mr. Norman worked was taken four
    days after Mr. Browetts admission to hospital, and because there was no
    evidence of the effect of surgery on the appearance of Mr. Browetts face. We
    disagree. A visible pattern of bruising was evident in the photographs.

[7]

Neither are we persuaded by the appellants submission that Mr. Normans
    opinion was so uncertain that it was legally irrelevant. The evidence was inconclusive,
    but given that the event took place in a prison cell, with a small number of
    possible causes, the evidence that Mr. Browetts injuries were consistent with having
    been struck in the head by a shoe, was legally relevant.

[8]

We also reject the argument that Mr. Normans evidence was so
    prejudicial that if it was admitted, it required a much stronger caution to the
    jury about its limited relevance. The trial judges charge to the jury tracked
    the wording of Laskin J.A. in
R. v. Ferguson
(1999) 142 C.C.C. (3d) 353
    at para 67 approved by the Supreme Court at (2001) 152 C.C.C. (3d) 95. In
    addition, the appellants submission is nearly self-refuting. He could
    plausibly argue that the evidence was so uncertain as to be useless (a
    conclusion that the trial judge left open to the jury), or that the evidence
    was so powerful as to be dispositive. He cannot argue both.

(2)

Charge to the jury: after the fact conduct

[9]

After initially summoning the corrections officers, the appellant made
    four statements concerning what happened. Although the statements differ in
    detail of what the appellant was doing at the time of Mr. Browetts injury, where
    he was in the cell, and whether he witnessed Mr. Browett fall or merely heard
    him fall, counsel for the appellant stresses their consistency: all of his
    accounts have Mr. Browett falling to the ground and striking his head while the
    appellant was otherwise occupied.

[10]

The appellant argues that the inconsistencies among his various after
    the fact statements were not sufficiently material to support an inference of
    fabrication, and thus of guilt. He argues in the alternative that if the
    statements were capable of supporting an inference of guilt, the charge to the
    jury was inadequate, as it failed to consider innocent explanations for the
    appellants false statements such as, for example, that he was motivated by
    desire to conceal his efforts to destroy contraband, rather than by his desire
    to conceal his involvement with an assault.

[11]

Again, we do not accept this submission. Contradictory exculpatory
    statements of an accused may constitute independent evidence of fabrication:
R.
    v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d), at para. 288. Additionally, it
    was open to the jury to conclude from the surrounding circumstances that the
    statements were fabrications. The repeated assertion that Mr. Browett fell in
    his cell was not supported by the medical evidence and was simply not
    believable. The timing of the appellant raising the alarm was suspect: it is suspicious
    that Mr. Browett would have fallen immediately before the cell was to be
    searched, particularly given that corrections officers were in the next cell at
    the time and heard nothing.

[12]

Additionally, in this case it is significant that the appellants trial
    counsel made no objection to the charge to the jury with respect to the four
    statements. That was a tactical decision. The appellants trial counsel
    stressed the consistency and truth of the appellants statements that he did
    not assault Mr. Browett. It would not have served the appellants purpose for
    the trial judge to have drawn further attention to the ways in which the
    appellants statements diverged from each other.

(3)

Jury re-charge on reasonable doubt

[13]

The appellant argues that the trial judge erred when responding to one
    of the jurys questions during deliberations. The question asked the judge to
    Please define reasonable doubt as defined by the law. The trial judge
    responded by re-reading his charge on reasonable doubt. Although asked by the
    appellant to do so, he did not also include an instruction on the principles
    from
R. v. W.(D.)
, [1991] 1 S.C.R. 742. A
W(D)
instruction had
    been included in the main charge.

[14]

Again, we see no merit in this submission. This court has held that
    although it is preferable in many circumstances to include a renewed
W(D)
instruction in response to a jury question about standard of proof, it is not
    strictly necessary in response to a question about the meaning of reasonable
    doubt, standing alone from any question about credibility:
R. v. M.C.M.
(2003),
    176 C.C.C. (3d) 263, at para. 45;
R. v. T.(M.)
, 2012 ONCA 511, 289
    C.C.C. (3d) 115, at paras. 117, 124.

Disposition

[15]

The appeal is dismissed.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Charron, 2017 ONCA 513

DATE: 20170620

DOCKET: C63010

MacPherson, Blair and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Charron

Appellant

Anthony Moustacalis, for the Appellant

Scott Latimer, for the Respondent

Heard: June 16, 2017

On appeal from the conviction entered on May 14, 2015 and
    the sentence imposed on June 15, 2015 by Justice Jon-Jo Douglas of the Ontario
    Court of Justice.

By the Court:

[1]

Following an altercation during which he repeatedly kicked and punched
    the complainant and threatened to rip [the complainants] throat out, Mr.
    Charron was convicted of theft, robbery, uttering a threat, breach of recognizance
    and choking to overcome resistance.  He was sentenced to a term of imprisonment
    for 30 months less two months credit for pre-trial custody (based on 55 days
    of pre-trial custody, rounded up to two months, on a 1 for 1 basis).

[2]

He appeals from his convictions, and seeks leave to appeal from the
    sentence imposed.

[3]

The appellant argues that the trial judges verdicts were unreasonable
    on all counts on which he was convicted.  He also asserts that the trial judge
    misapplied the burden of proof and failed to consider his defence of
    self-defence properly.  With respect to sentence, he submits that the trial
    judge erred in failing to award him enhanced credit for pre-trial custody.

[4]

We would not give effect to these grounds of appeal.

Factual Background

[5]

During the evening of December 15, 2014, the complainant was socializing
    inside a Tim Hortons outlet in Barrie.  He had left his bicycle outside.  The
    bicycle was stolen.

[6]

When he discovered the bicycle at a nearby McDonalds restaurant, the
    complainant approached the lone patron inside the McDonalds  the appellant
    and asked whether he had stolen the bike.  The appellant responded yes or
    yeah, okay bud.  At this point, the complainant left the McDonalds, took his
    bike and returned to the Tim Hortons.

[7]

Shortly after, however, the complainant returned to the McDonalds, as
    the appellant was leaving.  The complainant, still standing astride his
    bicycle, again confronted the appellant about stealing his bike.  It was at
    this point that the altercation occurred.

[8]

The appellant grabbed the complainant by the throat and choked him.  The
    complainant fell to the ground, on top of his bike.  Eyewitnesses observed the
    appellant severely kicking and punching the complainant as he lay on the
    ground. The complainant testified that the appellant demanded his wallet during
    the beating.

[9]

One eyewitness overheard the complainant say Take it, just take it.
    Another took a picture of the assault as it was ongoing.

[10]

The
    complainant suffered a concussion, multiple abrasions, and emotional trauma as
    a result of the attack.

[11]

At
    the time of the altercation the appellant was on bail and subject to a curfew.
    He was outside of his residence past the curfew.  Although he said that he had
    a note from his surety (his mother) permitting him to be out  which would have
    put him in compliance with his bail condition  he had no such note with him
    and the trial judge ultimately found that no such note existed for that night.

[12]

The
    appellant testified.  He denied stealing the bicycle.  He said that he was
    defending himself and struck the first blow because the complainant rode up to
    him on the bike, stopped millimeters from his face, and demanded the
    appellants bag of fast food.  The appellant admitted that he said he would
    rip [the complainants] throat out, but said that he did so in order to ward
    off an assault from the complainants posse  a group of people that he said
    was approaching him, but which none of the witnesses observed.

The Trial Judges Decision

[13]

The
    trial judge rejected the appellants evidence, as he was entitled to do.
    Applying the principles enunciated in
R. v. W.(D).
, [1991] 1 S.C.R. 742,
    he found as well that neither the appellants testimony nor the balance of the
    evidence raised a reasonable doubt in his mind.  He was satisfied that the
    Crown had proved the appellants guilt beyond a reasonable doubt.

[14]

In
    arriving at his verdicts, the trial judge carefully examined the evidence
    presented by the defence  the testimony of the appellant and that of his
    mother  together with the evidence tendered by the Crown.  In addition to the
    testimony of the complainant, the Crowns evidence consisted of the testimony
    of a McDonalds patron (who witnessed most of the assault), a McDonalds
    employee (who witnessed most of the assault and who took the picture of it that
    was made an exhibit), and that of the arresting officer.  He accepted the
    essential elements of the eyewitness testimony and of the complainants
    testimony, finding the complainant to be a candid and forthright witness who
    did not, in any sense, exaggerate the accuseds conduct.   He found that the
    appellant was not a credible witness, rejecting his evidence that his conduct
    that evening was affected by an overconsumption of either his anxiety
    medications or alcohol, that he was only being sarcastic when he admitted to
    stealing the bike, that the complainant was the physical aggressor, and that
    the complainants posse was threatening him.  The trial judge ultimately
    concluded that he could not rely on the testimony of the appellants mother.

[15]

In
    the end, the trial judge found the appellant guilty on all counts except one.
    With respect to sentence, the trial judge concluded that a penitentiary sentence
    was warranted given the severity of the appellants violence, his criminal
    record and his probation officers conclusion that the appellants behaviour
    has escalated in a deteriorating and violent pattern and that community
    supervision orders over the years have made little impact on [the appellants]
    ability to change. The trial judge sentenced the appellant to 30 months
    imprisonment, less two months of pre-trial custody credited on a 1 for 1 basis.

The Conviction Appeal

[16]

An unreasonable verdict is one that no properly instructed jury,
    acting judicially, could reasonably have rendered:
R. v. Biniaris
,
    2000 SCC 15, at paras. 24, 36-42.

[17]

None
    of the verdicts here falls into that category.  The trial judge considered all
    relevant legal principles, including those set out in
R. v. W. (D.)
and the principles regarding the defence of self-defence.  He made no error in
    his assessment of the evidence, in our view, and there was evidence on each
    count that, once accepted, supported the conviction on that count.  We will
    deal with each briefly.

Count
    One (Theft Under $5000)

[18]

With
    respect to count one, the trial judge effectively found the appellant guilty
    by circumstances and his own admission.

[19]

The
    appellant argues, however, that his statement yes or yeah, okay bud when
    asked if he had stolen the bike, was equivocal at best (the appellant said he
    was just being sarcastic; the complainant said the statement was made in a rude
    but not sarcastic fashion) and could not form the basis for a reasonable
    verdict.  We disagree.

[20]

The
    trial judge resolved the equivocation by rejecting the appellants testimony
    and accepting that of the complainant.  Regarding the statement as an admission
    in those circumstances was not an error and, together with the other evidence
    respecting the circumstances of the theft, was sufficient to ground the
    conviction.

Counts
    Two and Three (Assault with Intent to Steal, Robbery; Uttering Threats)

[21]

The
    trial judge accepted the evidence that the appellant had demanded the
    complainant give him his wallet during the altercation.  He found that the
    appellant had used language reasonably interpreted as a threat to both kill and
    do serious bodily harm, noting that his finding in this regard was consistent
    with the appellants admission that he had said I will rip your throat out to
    the complainant. This evidence formed the basis for the convictions on counts
    two and three.

[22]

The
    appellant submits, however, that the trial judge failed to consider certain
    contradictions in the evidence, misapplied the burden of proof and failed to
    consider self-defence properly.

[23]

We
    do not accept this submission.  The trial judge applied his mind to the appellants
    self-defence theory, namely that he was reasonably defending himself against,
    and only spoke the threatening words in the context of, the threats posed by
    the complainant and his menacing posse. He rejected the evidence upon which
    that theory was based, and we see nothing to suggest that he reversed the
    burden of proof in rejecting the appellants theory.

[24]

The
    appellant suggests that, because the eyewitness who testified that she heard
    the complainant say to the appellant during the beating Take it, just take it
    did not testify that she heard anything else said between the two, an
    unresolved conflict that would lead to an unreasonable verdict arose.  However,
    one does not follow from the other, and the trial judge accepted the take it,
    just take it evidence, which, once accepted, is only consistent with either
    the theft of the bicycle or the demand for the complainants wallet.  It confirmed
    the complainants testimony regarding the appellants demand that he hand over
    his wallet.

Count
    Six (Choking)

[25]

The
    trial judge recognized that count six was somewhat problematic  to find the
    appellant guilty of choking with intent to choke would be tautological  but
    ultimately accepted the Crowns position that the choking was done to disable
    the complainant in order to continue with his intended beating and to
    facilitate what followed.

[26]

The
    appellant submits the trial judge erred in this regard, and that choking that
    is incidental to an assault does not amount to the offence of overcoming
    resistance by choking.  As noted, the trial judge recognized this tautology.
    He founded the choking conviction on a different theory, though.  In effect, he
    concluded that there were two instances of the appellants application of force
    to the complainant: first, choking the complainant while he was still standing
    astride his bicycle; second, punching and kicking the complainant while he was
    on the ground.  In short, the choking was in furtherance of the assault that
    followed.

[27]

These
    findings were open to him on the record.  It is not clear what the appellants
    argument is to the effect that the trial judge misapplied the burden of proof
    in connection with count six.  In any event, we see nothing to suggest that he
    did so.

Failure
    to Comply

[28]

Finally,
    with respect to the conviction for failure to comply, in addition to arguing an
    unreasonable verdict, the appellant submits that the trial judge erred by
    shifting the burden to the appellant to show that he had permission from his
    mother to be off-residence after his curfew hour.

[29]

The
    defence was that the appellants mother, his surety, had supplied him with
    permission that evening before he went to McDonalds.  No note was ever
    produced, although the appellant said he must have left it at home in the
    garage before leaving and he did not think to ask his mother to produce it
    because he did not think it was relevant.  His mother said she had prepared a
    note but could not remember if it was for that specific night.  The trial judge
    rejected the idea that there was a note, and was entitled to do so on the
    evidence.  He did not believe the appellant or his mother.  In doing so, he was
    not reversing the burden.

Disposition of the Conviction Appeals

[30]

In essence, the appellants argument on the conviction appeals asks us
    to accept the appellants version of what happened, as amplified by the
    testimony of his mother, and conduct our appellate analysis based upon that
    revised version of the facts.  We cannot do so.  The trial judge made no
    palpable or overriding errors in his factual finding and properly addressed the
    relevant principles of law.

[31]

The
    appeal as to conviction is dismissed.

The Sentence Appeal

[32]

The
    appellant argues that he is entitled to enhanced credit, for pre-trial
    custody.  He spent 55 days in pre-trial custody in relation to these charges,
    which the trial judge appears to have rounded up to two months on a 1 for 1
    basis but the appellant seeks credit for 84 days credited on a 1.5 to 1 basis.
[1]

[33]

The
    trial judge addressed the issue of enhanced credit and declined to award it in
    the circumstances.  In arriving at this decision he took into account the
    particularly violent nature of the offences, the appellants criminal record
    stretching back to 1996 and the flagrant nature of the breach in this case.

[34]

We
    see no basis for interfering with his decision in this regard.

Conclusion

[35]

For
    the foregoing reasons, the appeal from the appellants convictions is dismissed.
    Leave to appeal sentence is granted, but the appeal as to sentence is dismissed
    as well.

Released:

JCM                                                          J.C.
    MacPherson J.A.

JUN 20 2017                                    R.A.
    Blair J.A.

J.
    MacFarland J.A.

[1]

In his reasons for sentence, the trial judge misspoke,
    referring to 73 days of pre-trial custody which he counted as two months.
    There appears to be no issue, however, that the appellant had spent 55 days in
    pre-trial custody in relation to these charges.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2017 ONCA 527

DATE: 20170623

DOCKET: C63259 & C63260

Tulloch, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Marie Codina

Appellant

Angelina Marie Codina, in person

Jason A. Morische, for the respondent

Heard: June 6, 2017

On appeal from the judgments of Justice Michael Code of
    the Superior Court of Justice, both dated November 24, 2016, dismissing the appellants
    applications, with reasons reported at 2016 ONSC 7305 and 2016 ONSC 7335,
    respectively.

By the Court:

A.

background

(1)

Introduction

[1]

The appellant, Angelina Codina, is presently charged with six counts
    under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27
    (the
IRPA
) pursuant to a direct indictment preferred under s. 577 of
    the
Criminal Code
, R.S.C. 1985, c. C-46, dated December 8, 2016, and
    filed with the Superior Court of Justice on December 19, 2016. Previously, Ms.
    Codina had been the subject of two preliminary inquiries, but on January 5,
    2017, the Crown stayed these proceedings pursuant to s. 579 of the
Criminal
    Code
.

[2]

The first set of charges was laid on May 8, 2014, at the initiation of
    an investigator for the Canada Border Services Agency (CBSA), alleging that Ms.
    Codina was providing advice to various individuals concerning immigration
    matters in return for payment of fees, and that she was neither a lawyer nor a
    member of the Immigration Consultants of Canada Regulatory Council during the
    relevant periods; during that time, Ms. Codina was a disbarred lawyer. These
    alleged actions would contravene s. 91 of the
IRPA
. On the same day, Ms.
    Codina was brought before a justice of the peace, who granted bail pursuant to
    s. 515(2) of the
Criminal Code
, with the CBSA as the agency assigned
    to execute the bail.

[3]

The second set of charges was laid on September 18, 2015, alleging
    breach of recognizance (
Criminal Code
, s. 145) as well as fresh
    violations of s. 91 of the
IRPA
. Ms. Codinas bail was revoked
    pursuant to s. 524 of the
Criminal Code
and she was detained on
    December 8, 2015 on both sets of charges.

[4]

Ms. Codina brought a bail review in the Superior Court, which Himel J.
    denied on May 20, 2016. She then brought a two-part
habeas corpus
application
    before Goodman J., who denied the application on July 6 and July 21, 2016.
    Clark J. denied a second bail review on October 19, 2016. Ms. Codina appealed
    Goodman J.s decision to the Court of Appeal, and also brought several
    applications before Code J. of the Superior Court (the applications judge),
    described below. As explained below, Ms. Codina was granted bail.

[5]

There is an eight day trial set to start in September 2017, with
    pre-trial motions set to convene on June 22, and 23, 2017.

(2)

The Applications on Appeal

(a)

Applications for prerogative relief

[6]

In three applications with various dates, Ms. Codina asserted that the
    judge who presided at one of her preliminary inquiries (the PI judge) had
    lost jurisdiction.

[7]

In her first application, Ms. Codina contended that the PI judge had
    committed various jurisdictional errors in rulings made on August 17, 2016,
    during the focus hearing prior to the scheduled preliminary inquiry. The PI
    judge dismissed Ms. Codinas application to quash the Informations against her
    and the judge ruled that she had no discretion to hear the constitutional
    issues that Ms. Codina had raised. With respect to Ms. Codinas other issues,
    the PI judge held that, if the matter were to go to trial, the trial judge
    would have the power to address them.

[8]

In her second application, Ms. Codina contended that the PI judge made
    jurisdictional errors in proceeding with the preliminary inquiry in the face of
    r. 43.03(5) of the
Criminal Proceedings Rules
and in the absence of an
    order pursuant to r. 43.03(6) of the
Criminal Proceedings Rules
.

[9]

In her third application, Ms. Codina contended that the PI judge
    committed a jurisdictional error in having her arraigned on the second of three
    Informations before the court. Ms. Codina argued that this second Information
    charged different offences from those charged in the first Information and that
    s. 523 of the
Criminal Code
did not apply. The PI judge disagreed and
    arraigned Ms. Codina on the second Information.

(b)

The
Charter
application

[10]

Ms. Codina also brought a constitutional challenge with respect to
    various provisions of the
Criminal Code
and the
IRPA
, seeking
    the following declarations: (i) that ss. 145(3) and 524(8) of the
Criminal
    Code
violate ss. 7 and 11(
d
) of the
Charter
because they
    include reverse onus clauses; (ii) that ss. 523 of the
Criminal Code
,
    as applied in Ms. Codinas case, violates a number of
Charter
provisions,
    including s. 7, because of overbreadth, vagueness and arbitrariness; (iii) that
    the core provisions of Part 18 of the
Criminal Code
, which sets out
    the powers and jurisdiction of a judge presiding at a preliminary inquiry,
    violate a number of
Charter
provisions, including s. 7, because of
    overbreadth, vagueness and arbitrariness; and that ss. 91(1), 126 and 138(1) of
    the
IRPA
violate a number of
Charter
provisions, including s.
    7, because of overbreadth, vagueness and arbitrariness.

(c)

The applications judges decisions on the applications

[11]

In two sets of reasons, both released on November 24, 2016, the
    applications judge dismissed all of Ms. Codinas applications for prerogative
    relief as well as her
Charter
application.

(3)

Subsequent Procedural History

[12]

After the applications judge had dismissed the applications before him,
    a panel of this court heard Ms. Codinas appeal from the denial of her
habeas
    corpus
application. In a decision dated February 2, 2017,
R. v. Codina
,
    2017 ONCA 93, this court set aside the lower courts decision for failure to
    provide adequate reasons and ordered a new
habeas corpus
hearing, to
    be adjourned pending the outcome of a new bail review hearing.

[13]

After the new bail review hearing, in reasons dated February 28, 2017,
    the review judge granted bail on a recognizance of $1,000 with no deposit and
    no sureties, ordering Ms. Codina to live with her mother:
R. v. Codina
,
    2017 ONSC 1384. The ground for allowing bail on review was that there was a
    serious risk that Ms. Codinas time in pre-trial custody would exceed her
    ultimate sentence if convicted (para. 26).

B.

issues on appeal

[14]

Ms. Codina raises the following grounds of appeal from the applications
    judges judgments:

(i)       Does s.
    145(3) of the
Criminal Code
violate s. 11(
d
) of the
Charter
?

(ii)      Do ss.
    524(4) & (8) of the
Criminal Code
violate s. 11(
d
) of the
Charter
?

(iii)     Does the
    jurisdictional scheme for preliminary inquiries in Part XVIII of the
Criminal
    Code
violate s. 7 of the
Charter
on the ground of vagueness?

(iv)     Does s. 91
    of the
IRPA
violate s. 7 of the
Charter
?

(v)      Does s.
    126 of the
IRPA
violate s. 7 of the
Charter
?

(vi)     Does s.
    138(1) of the
IRPA
violate s. 7 of the
Charter
?

C.

Analysis

[15]

For the following reasons, we dismiss this appeal.

[16]

Ms. Codinas only plausible argument for relief
from
    this panel
is that the applications judge erred in holding that the PI
    judge did not make a jurisdictional error in declining to quash the
    Informations on the basis of Ms. Codinas argument that the CBSA officers
    lacked any statutory authority to arrest, charge and detain her. As this court
    noted in its February 2, 2017 decision on Ms. Codinas
habeas corpus
appeal,
    the substance of this ground of appeal is similar to the argument underlying Ms.
    Codinas
habeas corpus
application:
R. v. Codina
, 2017 ONCA
    93, at para. 23.

[17]

In support of her grounds of appeal before this panel, Ms. Codina relies
    on the
obiter dictum
in 2017 ONCA 93 that we have just mentioned,
    suggesting substantial overlap between the substance of her
habeas corpus
application
    and her applications before the applications judge. This court also suggested
    at para. 24 of its February 2, 2017 decision that this case might be one in
    which the
dictum
in
R. v. Johnson
(1991), 3 O.R. (3d) 49
    (Ont. C.A.), at p. 54, should have applied to allow for
Charter
remedies
    or prerogative relief during ongoing criminal proceedings.

[18]

Ms. Codina relies on a passage in
Johnson
, at p. 54, where Doherty
    J.A. noted limits on the rule against granting
Charter
remedies or
    prerogative relief before the completion of a criminal trial:

I stress, however, that this limitation on resort to
Charter
or extraordinary remedy relief during criminal proceedings has been
    judicially imposed and cannot be taken as the equivalent of an absolute
    privative clause barring all such applications. Where the circumstances are
    such that the interests of justice require immediate intervention by the
    superior court, that jurisdiction can and will be exercised.

[19]

We reject the argument for application of this
dictum
to Ms.
    Codinas case because, since she has been released on bail, the analysis in
Johnson
reverts to favouring a denial of any
Charter
or prerogative remedy
    while Ms. Codinas criminal proceeding remains ongoing. The panel that decided Ms.
    Codinas
habeas corpus
appeal did so on the basis that she still was
    in pre-trial custody; the panel relied on the
dictum
in
Johnson
to
    justify ordering a bail review before a new
habeas corpus
hearing.

[20]

Instead, we believe that the immediately preceding paragraph on p. 54 of
Johnson
is apposite:

Those same cases identify the policy concerns
    which underline the predilection against resort to the superior court for
    relief during criminal proceedings. Such applications can result in delay, the
    fragmentation of the criminal process, the determination of issues based on an
    inadequate record, and the expenditure of judicial time and effort on issues
    which may not have arisen had the process been left to run its normal course.
    The effective and efficient operation of our criminal justice system is not
    served by interlocutory challenges to rulings made during the process or by applications
    for rulings concerning issues which it is anticipated will arise at some point
    in the process. A similar policy is evident in those cases which hold that
    interlocutory appeals are not available in criminal matters.

[21]

The factual record for this hearing is extremely
    poor. As the applications judge noted in his reasons on the applications, the
    factual record consists essentially of Ms. Codinas affidavit, plus some
    supporting documents like warrants, informations and bail documents. Since she
    has obtained bail, we perceive no requirement of justice to grant any of her
    applications for
Charter
or prerogative relief at
    this time. Furthermore, since the panel in 2017 ONCA 93 allowed Ms. Codinas
    appeal and ordered a new
habeas corpus
hearing
    pending the outcome of the bail review, she should be able to obtain elsewhere
    any remedy to which she has a right arising from these proceedings. Lastly, the
    Crowns decision to prefer a direct indictment pursuant to s. 577 of the
Criminal
    Code
and to stay the preliminary inquiries pursuant to s.
    579 effectively renders this appeal moot.

D.

Disposition

[22]

For the reasons provided above, the appeal is dismissed.

Released: DB JUN 23 2017

M. Tulloch J.A.

P. Lauwers J.A.

David Brown 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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.C., 2017 ONCA 483

DATE: 20170616

DOCKET: C57786

Feldman, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D. C.

Appellant

Paul Alexander, for the appellant

Megan Stephens, for the respondent

Heard and released orally: June 1, 2017

On appeal from the conviction entered on February 6, 2013
    and the sentence imposed on May 2, 2013 by Justice Howard I. Chisvin of the Ontario
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of four counts of sexual interference and
    four counts of sexual assault of his daughter, from ages 11 to 14. The four
    counts of sexual assault were stayed pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729
. He was sentenced
    to 18 months in addition to pre-trial custody. The appellant appeals his
    convictions on two grounds: 1) his s. 11(b)
Charter
right was infringed
    due to unreasonable delay in completing the trial; 2) the trial judge erred in
    his analysis of the credibility of the complainant by: reversing the burden of
    proof, misusing the finding of no motive to fabricate, and by misapprehending
    some of the evidence on that issue.

(1)

Unreasonable delay

[2]

The trial was completed in 2013 but is now governed by the decision of
    the Supreme Court Canada in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R.
    631. The trial was held in the Ontario Court of Justice so that the presumptive
    ceiling to verdict is 18 months. Although this case took just under 36 months
    to complete to verdict, on this appeal, counsel for the appellant fairly
    submitted that the appeal turns on the characterization of the 11-month
    adjournment of the trial from June 2011 to May 2012. He also fairly conceded
    that some of that time could be attributed to the defence but that the rest was
    institutional delay. The Crowns position is that the entire adjournment period
    is attributable to the defence. We agree with that submission.

[3]

The adjournment was required because defence counsel at trial did not
    comply with s. 276.1 of the
Criminal Code
by deciding not to bring an
    application in writing to cross-examine the complainant on an incident of
    alleged prior sexual activity (in this case, another assault). The Crown sought
    to tender the video statement of the complainant under s. 715.1 of the
Code
,
    but with the alleged sexual assault incident edited out. Defence objected and
    took the position that the Crown was required to justify the editing. Although
    Crown counsel had given defence counsel written notice asking counsel to bring
    the necessary application, counsel did not do so, and the issue was addressed
    at the opening of trial and led to the need to adjourn.

[4]

As the time set for the trial was only two days, when the adjournment
    was needed, the Crown sought both a date for the application as well as a
    separate four day trial period. That four day period could not be given by the
    court until the following May.

[5]

We agree with Crown counsel on the appeal that the defence position at
    trial in June 2011 was frivolous, as a s. 276 application was required, as
    subsequently ruled by the trial judge. In para. 63 of
Jordan
,
the Supreme Court identifies taking
    frivolous positions as conduct by the defence that is defence delay that will
    be subtracted from the presumptive ceiling. As a result, we find there was no
    s. 11(b) breach based on
Jordan
. We similarly reject the submission
    that it was an error by the trial judge in the s. 11(b) analysis he conducted under
R. v. Morin
,

[1992] 1 S.C.R. 771, not to characterize the 11-month
    adjournment as institutional delay.

(2)

The credibility findings of the trial judge

[6]

We also reject the submission that the trial judge erred in his
    credibility analysis. The objection on appeal is based on the structure of the
    trial judges reasons. The appellant called only one witness who did not
    testify as to the events of the alleged sexual assaults. Therefore the only
    witness on that issue was the complainant.

[7]

The trial judge reviewed her evidence and he identified some
    inconsistencies, but found that they were not significant enough to make her
    unbelievable and not credible. He then found that her credibility was enhanced by
    the absence of a motive to fabricate. It was not in her interest to fabricate the
    allegations because the result of that could have been that she would no longer
    be able to live at her fathers home in Stouffville and might have to return to
    live either with her mother, who was homeless, or to go into foster care.

[8]

We see no error in the trial judges approach. As Doherty J.A. stated in
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.) at para. 120, absence of
    motive to fabricate is a factor that can be taken into account in assessing
    credibility. In this case there was also no error as in
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412
, where
    the accused was asked to speculate on the motive to fabricate. Nor did the
    trial judge misapprehend the evidence regarding the complainants feelings
    about her life in Stouffville and the alternatives open to her. His findings
    and inferences were supported by the evidence.

[9]

Finally, the approach of the trial judge did not reverse the burden of
    proof. He accepted the complainants un-contradicted evidence about the sexual
    assaults and determined that he believed her. His reasons disclose no error.

[10]

The
    appeal is therefore dismissed.

K. Feldman J.A.

G. Pardu J.A.

M.L.
    Benotto J.A.