COURT OF APPEAL FOR ONTARIO

CITATION: Geliedan v. Rawdah, 2020 ONCA 339

DATE: 20200529

DOCKET: C67443

Lauwers, Paciocco and Fairburn
    JJ.A.

BETWEEN

Mazen Geliedan

Applicant (Respondent)

and

Abir Rawdah

Respondent (Appellant)

Kristy Maurina, Michael J. Stangarone
    and Edward C. Conway, for the appellant

Matthew Gourlay, Farrah Hudani and
    Jessica Luscombe, for the respondent

Heard: In writing

REASONS FOR DECISION

[1]

This is an application brought by the Applicant/Respondent
    in Appeal (father) to re-open an appeal that has already been decided: 2020
    ONCA 254. The application is based upon new evidence placed before the court,
    consisting of text messages sent by the Respondent/Appellant in Appeal (mother)
    to the father after the appeal was heard, in the time period immediately prior
    to the release of the judgment.

[2]

The child at the centre of this litigation was
    born in the United Kingdom. The U.K. is the only place the family lived
    together prior to separation. After the parents separated, the father
    eventually went to live in Dubai. The mother and child later joined the father
    in Dubai. Well over a year after arriving in Dubai, the mother and child came
    to Ontario, where they have lived since. They had been in Ontario for only a
    short time before the father sought to have the child returned to Dubai. As
    recounted in the judgment, the parties have dramatically different narratives
    as to why the mother and child travelled to Dubai, were in Dubai as long as they
    were, and why the mother and child later came to Ontario.

[3]

The father obtained an order pursuant to s. 40
    of the
Childrens Law Reform Act,
R.S.O. 1990, c. C.12 (
CLRA
)
    to have the child returned to Dubai. The mother appealed from that order. We do
    not intend to repeat the analysis set out in the judgment. This court
    determined that the application judge erred in deciding the s. 40 application
    without regard to a binding, valid Consent Custody Order in the U.K., one that
    specifically governs the circumstances under which the child could be removed
    from the U.K.

[4]

Among other things, this court stayed the
    fathers s. 40
CLRA
application on the condition that he promptly
    commence a similar proceeding in the court that issued the Consent Custody
    Order. In the event that the U.K. court declines to take jurisdiction, this
    court ordered that the father could apply to the Ontario Superior Court of Justice
    to lift the stay and seek a rehearing of his s. 40 application. In that event,
    the mother could also bring her own application(s).

[5]

The father has filed a motion to have this court
    reconsider its appeal decision on the basis of new evidence arising from text
    messages sent by the mother to the father, suggesting that she now wishes to
    have the child returned to Dubai and to live with the fathers family.

[6]

The father submits that these text messages
    belie the mothers narrative, as reviewed in this courts judgment, that she
    and the child were involuntarily trapped in Dubai for well over a year, the
    father having taken their passports. The father has always challenged that
    narrative, a challenge that is also reviewed in the reasons for judgment. The
    father argues that the new evidence highlights that the mother has not been telling
    the truth about what occurred in Dubai.

[7]

The mother argues that the text messages
    represent nothing more than her panic over financial strain, particularly
    during COVID-19, her desire to have the father provide some money to support
    the child, and her concern that she may lose the appeal. She says that he is in
    breach of a prior support order. (He denies this suggestion.) She contends that
    the messages should not, therefore, be taken at face value. She was simply
    saying the things reflected in the new evidence in an effort to have the father
    provide much-needed financial aid and to better position herself in the event
    that she lost on appeal.

[8]

In rare situations, this court may re-open an
    appeal, particularly where an order has not yet been taken out:
First Elgin
    Mills Developments Inc. v. Romandale Farms Limited
, 2015 ONCA 54, 381
    D.L.R. (4th) 114, at para. 7. This rare event will only occur where a very
    serious injustice will result absent reconsideration of the matter:
Doman
    Forest Products Ltd. v. GMAC Commercial Credit Corp. - Canada
, 2005 BCCA
    111, 209 B.C.A.C. 197, at para. 6;
First Elgin Mills
, at para. 8. This
    is not one of those rare cases.

[9]

The parties have been locked in a serious factual
    dispute from the outset of these proceedings. There seems to be little, if
    anything, they factually agree upon. While the new evidence may well be
    relevant to credibility determinations that will no doubt inform where the
    child should live, this court did not make credibility findings on the appeal.
    It was unnecessary to do so. Rather, this courts judgment focussed upon which
    court should decide these issues.

[10]

As this court noted at para. 76 of its reasons:

In all of the circumstances, the application
    judge should have given substantial weight to the Consent Custody Order when
    arriving at an appropriate disposition. Given the highly disparate accounts of
    the parties, and the clear need to resolve those accounts before ordering the
    childs return to Dubai, the matter should have been returned to the Central
    Family Court in London, U.K. for determination.

[11]

Accordingly, while the new evidence may be
    relevant to determining the fathers application to have the child returned to
    Dubai, it is irrelevant to this courts decision that the U.K. Consent Custody
    Order must be respected and the father must first pursue the matter there.
    There is no basis upon which to reopen the appeal.

[12]

As for costs, the mother asks for her costs on
    this motion. We grant $2,500 in costs.

[13]

The parties were invited to make costs
    submissions following the appeal. We have reviewed those submissions.

[14]

The mother asks for the costs award from the
    application court to be set aside. We grant that order.

[15]

She also asks for $41,000 for the application,
    $7,461.39 for a motion to stay the judgment, $4,640.57 for a fresh evidence
    application, and $25,422.29 for the appeal. With disbursements and expert fees
    added, the mother asks for a total costs order in the amount of $86,719.

[16]

The father says there should be no costs awarded
    for a number of reasons:

·

the litigation is not over;

·

the mother did not get the relief she asked for
    on appeal;

·

the mother behaved badly in the application
    court;

·

she behaved badly after the appeal;

·

she unnecessarily complicated the litigation by
    advancing issues that did not need to be decided by this court;

·

she brought a constitutional challenge for the
    first time on appeal; and

·

the judgment sets out new law that could not be
    anticipated.

[17]

Based on all of these factors, the father asks
    that any costs award be reserved until the question of jurisdiction is finally
    determined.

[18]

Given the detailed history of this matter and in
    light of the courts order that the father next pursue this litigation in the U.K.,
    it is not appropriate to reserve the question of costs arising from litigation
    here to a court there. Accordingly, we make the following costs order against
    the father:

1)

$2,500 for the application to reopen.

2)

$10,000 for the appeal. While the mother was
    successful on appeal, the appeal involved a nuanced point of law. We also accept
    the fathers submission that the mother unnecessarily complicated the appeal
    with all manner of issues that did not need to be decided. This is most obvious
    in relation to the constitutional issue that was raised for the first time on
    appeal. We consider the fresh evidence application as part of the appeal.

3)

$5,000 for the application to stay the judgment
    pending appeal.

4)

$20,000 for the original application.

[19]

In total, the father shall pay costs in the
    amount of $37,500 to the mother in addition to disbursements and H.S.T.

P. Lauwers J.A.

David M. Paciocco J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Graff v. Network North Reporting
    and Mediation, 2020 ONCA 319

DATE: 20200527

DOCKET: M51025 (C64831)

Rouleau, van Rensburg and
    Roberts JJ.A.

BETWEEN

Marie Graff

Plaintiff (Appellant/Moving Party)

and

Network North Reporting and
    Mediation, Nadine Kuehnhold, Johnson
Insurance, Unifund Insurance, Dutton Brock LLP, Ryan St. Aubin, Kahler Personal
    Injury Law Firm Professional Corporation, Deborah J. Lewis,
Brennan Kahler, Longley Vickar, Louis Brent Vickar, Fox Psychological
    Services, Allan Walton, Dr. Valentin, Dr. Paula B. Williams
Medicine Professional Corporation and Dr. Paula Williams

Defendants (Respondents/Responding Parties)

Marie Graff, acting in person

Jay Stolberg, for the responding
    parties Network North Reporting and Mediation and Nadine Kuehnhold

Mark M. ODonnell, for the responding
    parties Johnson Inc. and Unifund Assurance Company

Visnja Jovanovic, for the responding
    parties Dutton Brock LLP and Ryan St. Aubin, making no submissions

Brian Pickard, for the responding
    parties Kahler Personal Injury Law Firm Professional Corporation, Deborah J.
    Lewis and Brennan Kahler

Alan L. Rachlin, for the responding
    parties Longley Vickar and Louis Brent Vickar

Joel Reinhardt, for the responding parties
    Fox Psychological Services and Allan Walton

Monika S. Korona, for the responding
    party Dr. Valentin

Andrew Porter, for the responding
    parties Dr. Paula B. Williams Medicine Professional Corporation and Dr. Paula
    Williams, making no submissions

Heard: May 20, 2020 by
    videoconference

REASONS FOR DECISION

A.

Overview

[1]

The appellant moves to set aside the order of a
    single judge of this court (the motion judge). The motion judge dismissed her
    motion to set aside the administrative dismissal of her appeal.

[2]

For the following reasons, we dismiss her
    motion.

B.

Background

[3]

On December 13, 2017, Favreau J. of the Superior
    Court of Justice issued comprehensive reasons granting summary judgment and dismissing
    the underlying action:
Graff v. Network North Reporting and Mediation
,
    2017 ONSC 7451, 75 C.C.L.I. (5th) 70. More than two years have passed since the
    appellant filed her notice of appeal in January 2018. The appeal has yet to be
    perfected.

[4]

The appeal has been administratively dismissed
    twice. The first dismissal came after the appellant had been given two
    extensions but failed to meet the deadlines imposed. After the first dismissal
    was set aside the appellant missed the new deadline imposed by the court for
    perfecting the appeal. Her motion to set aside this second administrative
    dismissal of her appeal was dismissed by the motion judge.

[5]

This motion to review the motion judges
    decision was brought out of time. The appellant was granted an extension of
    time to bring this review motion.

C.

SUBMISSIONS OF THE PARTIES

[6]

On this review motion the appellant has filed
    extensive written submissions and materials. In these materials, and in her
    oral submissions, the appellant submits that someone has tampered with her
    materials and that the respondents did not provide her with the documents
    required to perfect her appeal. She maintains that she has demonstrated conviction
    in pursuing the perfection of this appeal and that the respondents have
    contributed to the delay. She also argues that the motion judge erred in
    concluding that the appeal had no merit.

[7]

The respondents explain that they presented
    evidence before the motion judge demonstrating that all material that the
    appellant needed to perfect her appeal had been supplied to her well in advance
    of the scheduled perfection date. In their submission, that evidence was
    accepted by the motion judge and nothing before us suggests that this
    conclusion is unreasonable or wrong.

D.

Analysis

[8]

On a motion to set aside a dismissal order, the
    motion judge must assess the justice of the case, which includes consideration
    of the merits of the appeal and factors analogous to those typically considered
    on a motion to extend the time to appeal:
Sickinger v. Sickinger
, 2017
    ONCA 760, at para. 13.

[9]

After careful review of the record,
    consideration of the merits of the appeal, and taking into account the
    extensive delay and repeated failure to meet deadlines, the motion judge
    exercised his discretion not to set aside the dismissal and refused to extend
    the time for perfection. We see no basis to interfere.

[10]

Regarding the appellants claims that someone has
    tampered with her materials, possibly the respondents, there is no proof of these
    serious accusations. Nor is there a basis to conclude that the respondents have
    not reasonably assisted her in assembling documentation. These claims were not
    accepted by Doherty J.A., who heard an earlier motion brought by the appellant,
    and were rejected by the motion judge. We see no basis to interfere with these findings.

[11]

The appellants stated commitment to perfecting
    the appeal is an insufficient basis to interfere with the motion judges
    decision. This action was initiated over four and a half years ago and the
    respondents are entitled to closure. The delays here and below have been
    extensive. Although the respondents may have contributed to some of the delay, the
    justification for the appellants failure to perfect the appeal given the
    repeated and generous extensions of time is unconvincing.

[12]

In any event, as found by Favreau J., the
    underlying action is related to prejudice allegedly caused to the appellant in
    the context of her outstanding action for injury she suffered in a 2006 motor
    vehicle accident, which has yet to go to trial. That action remains outstanding
    and nothing in the record suggests that the respondents alleged actions and
    negligence, if established, caused damage to the appellant.

E.

Disposition

[13]

For these reasons, the motion is dismissed.

[14]

Costs of this motion, and of the motion to
    extend the time to bring this motion, are awarded to the following responding
    parties:

·

Network North Reporting and Mediation and Nadine
    Kuehnhold: in the amount of $750 collectively;

·

Johnson Inc. and Unifund Assurance Company: in
    the amount of $750 collectively;

·

Kahler Personal Injury Law Firm Professional
    Corporation, Deborah J. Lewis and Brennan Kahler: in the amount of $2,500
    collectively;

·

Dr. Valentin: in the amount of $750.

[15]

Costs of this motion are also awarded to the
    following responding parties:

·

Longley Vickar and Louis Brent Vickar: in the
    amount of $500 collectively;

·

Fox Psychological Services and Allan Walton: in
    the amount of $500 collectively.

[16]

All amounts are inclusive of disbursements and applicable
    taxes.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kazen v. Whitten & Lublin
    Professional Corporation, 2020 ONCA 325

DATE: 20200526

DOCKET: C67805

Gillese, Brown and Jamal JJ.A.

BETWEEN

Samuel Kazen

Plaintiff (Appellant)

and

Whitten
    & Lublin Professional Corporation, Daniel Asher Lublin, David Alan Whitten,
    Marc Warren Kitay, Stephen Clifford Wolpert
and
    Gauri Jalota

Defendants (Respondents)

R. Lee Akazaki, for the appellant

Gavin Tighe and Lauren Rakowski, for
    the respondents Whitten & Lublin Professional Corporation, Daniel Asher
    Lublin, David Alan Whitten, Marc Warren Kitay and Stephen Clifford Wolpert

Heard and released orally: May
    25, 2020 by Videoconference

On appeal from the order of Justice Paul
    B. Schabas of the Superior Court of Justice, dated November 15, 2019.

REASONS FOR DECISION

[1]

The appellant is a lawyer. He sued the respondents,
    a law firm and individuals connected to it (the Action). The cause of action
    is an alleged breach of solicitor-client privilege arising from the respondent
    law firm having provided the appellant with legal advice several years earlier.
    The alleged breach is said to have occurred on a motion in an unrelated lawsuit
    (the earlier proceeding).

[2]

The respondents moved to have the Action struck.
    By order dated November 15, 2019, the motion judge struck the Action on the
    basis of issue estoppel. The appellant appeals against the order.

[3]

For the reasons that follow, the appeal is
    dismissed.

[4]

In the Action, the appellant raised
    substantially the same alleged breach of solicitor-client privilege as had been
    dealt with in the earlier proceeding. In a motion on the earlier proceeding,
    the Master ruled against the appellant on the matter of solicitor-client
    privilege. The Master found, among other things, that if any privilege had
    existed, it had been expressly waived.

[5]

As the motion judge set out, relying on
Angle
    v. Minister of National Revenue
, [1975] 2 S.C.R. 248, the test for issue
    estoppel consists of three parts:

i. the same question has been decided;

ii. the judicial decision which is said to create the estoppel was
    final; and

iii. the parties to the judicial decision or their privies were the
    same persons as the parties to the proceedings in which the estoppel is raised
    [or] their privies.

[6]

We begin by noting that there is no real
    question that the second and third parts of the test are met. The appellant
    appealed the Masters decision but later withdrew the appeal. Accordingly, the Masters
    decision on solicitor-client privilege was a final decision. And, on the Motion
    before the Master relating to the issue of solicitor-client privilege, the
    parties or their privies were the appellant and the respondents.

[7]

The appellants primary contention on this
    appeal focusses on the first part of the test for issue estoppel. He argues that
    the Master did not decide the question of solicitor-client privilege. In making
    this argument, he relies on a narrow reading of one sentence in para. 23 of the
    Masters decision, where the Master refers to a legal consultation. We do not
    accept this argument. A fair and full reading of the Masters reasons as a
    whole show that the issue of solicitor-client privilege was squarely before the
    Master and that she found that the appellant had expressly waived that
    privilege. Thus, the same question was decided by the Master as that which the
    appellant raised in the Action.

[8]

Accordingly, the motion judge did not err in finding
    that the Action was barred by issue estoppel or in striking the statement of
    claim without leave to amend.

[9]

The appeal is dismissed with costs to the
    respondents fixed in the amount of $8,000, inclusive of disbursements and
    applicable taxes.

E.E.
    Gillese J.A.

David
    Brown J.A.

M.
    Jamal J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION:
Khan v.
    Law Society of Ontario, 2020 ONCA 320

DATE: 20200526

DOCKET: C67445

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Omar Shabbir Khan

Plaintiff (Appellant)

and

Law Society of Ontario,
Law Society Tribunal, David Wright, Raj
    Anand, Margaret Leighton, Barbara Laskin
, Deborah McPhadden, Glenn Stuart,
    Leslie Maunder, Nina Iwanowich,
Doctor Michael Colleton, Michael Colleton
    Medicine Professional Corporation, Legal Aid Ontario, Victor Matanovic,
    Hamilton Police Service and Kevin Dhinsa

Defendants (
Respondents
)

Omar Shabbir
    Khan in person

Susan M. Sack for the respondents, Law
    Society Tribunal, David Wright, Raj Anand, Margaret Leighton and Barbara Laskin

Gillian Kerr and Ljiljana Stanic for
    the respondents, Doctor Michael Colleton and Michael Colleton Medicine
    Professional Corporation

Gideon Forrest and Mitch Stephenson for
    the respondents, Legal Aid Ontario and Victor Matanovic

Colleen E. Robertshaw for the respondents,
    Hamilton Police Service and Kevin Dhinsa

Heard: in writing (on consent)

On appeal from the order of Justice Clayton
    Conlan of the Superior Court of Justice, dated August 23, 2019, with reasons
    reported at 2019 ONSC 4974.

REASONS FOR DECISION

[1]

On April 15, 2019, the appellant commenced an
    action in Milton against 16 defendants (the Milton action). On August 23,
    2019, the motion judge dismissed the Milton action as against 11 of the 16
    defendants under r. 2.1, on the basis that it was frivolous, vexatious or an
    abuse of process. The other five defendants had not sought a dismissal. For the
    following reasons, we would allow the appeal in part.

[2]

The appellant was the subject of a complaint to
    the Law Society of Ontario (LSO) regarding alleged billing irregularities and
    alleged forged documents. In September 2018, upon making a finding that the
    appellant had committed professional misconduct, the LSO revoked his licence to
    practice.

[3]

The 16 defendants in the Milton action include
    the LSO, the Law Society Tribunal, various individuals who were involved in the
    proceedings that resulted in the revocation of the appellants licence, Dr.
    Colleton, a psychiatrist who provided evidence to the Tribunal regarding the
    appellants mental health, Legal Aid Ontario (LAO) which was the complainant
    in the appellants disciplinary case, and the Hamilton Police Service, who the
    appellant says undertook an investigation of him at the behest of the LAO.

[4]

The statement of claim in the Milton action is a
    lengthy document that advances a myriad of claims and seeks a wide variety of
    damages, all arising from the events surrounding the revocation of the
    appellants licence to practice.

[5]

On that latter point, certain other facts are
    important. One is that the appellant has appealed the decision of the Law
    Society Tribunal by which the revocation of his licence was upheld. Another is
    that the appellant has an outstanding application for judicial review
    respecting a ruling made in the course of the Tribunals hearing. Yet another
    is that the appellant had earlier commenced another action in Hamilton (the
    Hamilton action) against LAO arising out of this same matter.

Analysis

[6]

We begin our analysis by focussing on the proper
    application of r. 2.1. Its use is restricted to the clearest of cases where
    the abusive nature of the proceeding is apparent on the face of the pleading:
Scaduto
    v. The Law Society of Upper Canada
, 2015 ONCA 733 at para. 8.

[7]

In particular, r. 2.1 is not intended to replace
    other Rules in the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 by
    which actions can be struck out, or other procedural irregularities dealt with,
    summarily:
Simpson v. The Chartered Professional Accountants of Ontario
,
    2016 ONCA 806 at para. 43. These include motions to dismiss an action for
    failure to disclose a cause of action or because the action is an abuse of
    process. For example, Rule 21 provides a procedure for dealing with actions
    that are defective in a number of different respects.

[8]

Further, r. 2.1 is intended to be a streamlined
    process for dealing with cases where the frivolous or abusive nature of the
    proceeding is clear on the face of the pleading. We suggest that if, after
    requesting submissions from the plaintiff as to why the action should not be
    dismissed under r. 2.1, the court feels it necessary to seek submissions from
    the defendants (who are seeking the dismissal), the fact that these additional
    submissions are needed ought to be a good indication that the situation is not
    one of those clearest of cases where the Rule should be invoked.

[9]

The appellant submits that the motion judge
    erred in referring to pleadings from other proceedings, since evidence is not
    permitted on a r. 2.1 motion. We do not agree. It may be necessary to review reasons
    and pleadings from other proceedings in order to make a determination whether
    the instant case is abusive. The case here is a good example of that.

[10]

There was argument advanced in this case as to
    the appropriate standard of review. We accept that a decision made under r. 2.1
    is a discretionary decision and, as such, is entitled to deference. That said,
    discretionary decisions may be set aside where the court misdirects itself or
    comes to a decision that is so clearly wrong that it amounts to an injustice:
Penner
    v. Niagara (Regional Police Services Board)
, [2013] 2 S.C.R. 125 at para.
    27.

[11]

We do not see any misdirection in the motion
    judges conclusion that the action against the Law Society Tribunal, and the
    individual defendants associated with it, is an abuse of process in light of
    the outstanding appeal that the appellant has from the Tribunals decision. To
    advance a claim arising out of a decision that is, itself, not final, because
    of an outstanding appeal, is on its face abusive.

[12]

Similarly, we do not see any misdirection in
    the motion judges conclusion that the Milton action against LAO is abusive in
    light of the outstanding Hamilton action that the appellant has against LAO.
    The mere fact that the appellant has also sued an individual, not named in the
    Hamilton action, in the Milton action does not change that conclusion. A
    multiplicity of proceedings is often a hallmark of abusive litigation.

[13]

However, we do find that the motion judge
    misdirected himself with respect to the claim against Dr. Colleton and his
    corporation. This is not an obviously abusive claim. The fact that Dr. Colleton
    relies on the legal principle of absolute privilege in defence of the claim is
    a good indicator that the issue is not a simple one where it would be
    appropriate to invoke r. 2.1. We note on this point, as well, that the motion
    judge chose to limit the appellants opportunity to reply to the submissions of
    the various respondents. This meant that the appellant did not have a full opportunity
    to make submissions as to whether Dr. Colletons claim of absolute privilege
    was correct or not in the particular circumstances of his case. This fact
    highlights the inappropriate application of r. 2.1. The issue ought to have
    been left to be determined on a proper motion under Rule 21 with all the
    procedural safeguards such a motion includes.

[14]

We reach the same conclusion regarding the claim
    against the Hamilton Police Service and the associated individual defendant in
    the Milton action. The motion judge purported to determine various legal issues
    involving the claim against the police, including the parameters for claims of
    negligent investigation and for defamation respecting press statements issued
    by the police. These are not matters that should be determined on a r. 2.1
    motion. Further, the fact that these claims in the Milton action may overlap
    claims in the Hamilton action does not preclude a separate claim being made
    against the police when they are not parties to the Hamilton action.

[15]

We reiterate that judges should be cautious
    about allowing parties to have recourse to r. 2.1 except where it is plain and
    obvious on the face of the pleading that the action is frivolous, vexatious or
    an abuse of process. There are many other remedies provided for in the
Rules
    of Civil Procedure
by which parties can deal with cases that are not clear
    on the face of the pleading.

Conclusion

[16]

The appeals are allowed with respect to the
    claims made against Dr. Michael Colleton, Michael Colleton Medicine
    Professional Corporation, Hamilton Police Service, and Kevin Dhinsa, without
    prejudice to any subsequent motion that those parties may choose to bring under
    an appropriate Rule to summarily deal with the claims advanced. The appeals are
    otherwise dismissed. We make no order as to costs.

K. Feldman J.A.

P. Lauwers J.A.

I.V.B. Nordheimer J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION: Kitchen v. Brian Garratt
    (Garratts Garage), 2020 ONCA 309

DATE: 20200522

DOCKET: C67729

Lauwers, Huscroft and Thorburn
    JJ.A.

BETWEEN

John
    Kitchen and Nancy Kitchen

Plaintiffs (Respondents)

and

Brian
    Garratt c.o.b. as Garratts Garage

Defendant (Appellant)

Brian
    Garratt, acting in person

Scott
    McMahon, for the respondents

Heard: In Writing

On
    appeal from the judgment of Justice Gary W. Tranmer of the Superior Court of
    Justice, dated August 12, 2019.

REASONS
    FOR DECISION

[1]

The respondents hired the appellant in 2000 to
    conduct a partial restoration of their 1974 Corvette. The appellant also had
    possession of other vehicles owned by the respondents. The respondents claim
    they paid the appellant about $79,000 over a 15-year period to restore the 1974
    Corvette. In 2016, the parties fell out and the respondents brought an action
    seeking the return of the Corvette and damages. The appellant brought a
    counterclaim for unpaid accounts and storage fees, but it was dismissed because
    of his failure to deliver an affidavit of documents. The respondents obtained
    an order compelling the return of the Corvette and purported to discover that
    very little work had been completed.

[2]

A trial date was adjourned at the appellants
    request on the day of the trial, and the respondents were permitted to bring a
    motion for summary judgment. Although he had been represented by counsel in the
    past, at the return of the summary judgment motion, the appellant was
    self-represented. He did not file any affidavit evidence on the motion,
    although he did arrive with some photographs of the vehicle in hand, which he
    proferred.

[3]

The motion judge granted the motion for summary
    judgment, awarding $78,565.16 to the respondents as a return of monies paid to
    the appellant to restore their 1974 Corvette, plus pre-judgment interest and
    costs for a total of $103,949.79.

[4]

In his endorsement, the motion judge noted:

The defendant did not seek an adjournment
    today. He did not file affidavit evidence or a factum. I heard his submissions
    that he wants a trial permitting him to file Exhibit 1 (photographs of the
    automobile). The motion materials clearly support that there is no genuine
    issue for trial. The defendant had the vehicle for 15 years, the plaintiffs
    paid $79,000. The evidence is that the work agreed upon was not done.

[5]

However, contrary to the assertion made by the
    motion judge, there were photographs before him that depicted work done on the
    Corvette including painting and polishing. Those photographs were made an exhibit
    at the hearing. The respondents conceded that some, albeit they say very
    little, work was done, which implies that the return of all funds paid to the
    appellant might not have been warranted.

[6]

The conflict in the evidence was not resolved. We
    therefore allow the appeal, set aside the order of the motions judge granting
    summary judgment and costs, and remit the case back for trial.

[7]

Mr. Garratt had several opportunities to file
    evidence in support of his position that he did work on other vehicles and or
    stored other vehicles for the respondents and did not do so. By his failure to
    do so, Mr. Garratt has wasted the time of counsel for the respondents and must
    pay some costs thrown away on the summary judgment motion.

[8]

We fix costs of the motion thrown away to be
    paid by Mr. Garratt to the respondents in the amount of $5,000 within 30 days
    of the date of this decision. Costs of this appeal, which we also fix at
    $5,000, will be costs in the cause reserved to the judge who finally disposes
    of the matter. The respondents are free to bring another summary judgment
    motion on proper evidence.

P.
    Lauwers J.A.

Grant
    Huscroft J.A.

Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Laski v. BMO Nesbitt Burns Inc.,
    2020 ONCA 300

DATE: 20200515

DOCKET: C66956

Pepall, van Rensburg, and
    Paciocco JJ.A.

BETWEEN

Wayne S. Laski
and the Estate of Harold Morton Laski

Plaintiffs (
Appellant
)

and

BMO Nesbitt Burns Inc.
, Louis-Jacques Menard, Charyl A. Galpin, Peter Hinman, William
    Darryl White, Richard L. Mills, Patrick Cronin, Connie Stefankiewicz, Gilles
    Gerard Ouelette and
Norman Yu

Defendants (
Respondents
)

Wayne S. Laski, acting in person

Andrew Parley and Jonathan Chen, for
    the respondents

Heard: In writing

On appeal from the order of Justice
    Sandra Nishikawa of the Superior Court of Justice, dated April 23, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

Harold Laski died on March 13, 2012. His three
    adult children  Brian Laski, Wendi Laski, and the appellant, Wayne Laski
    were all named as co-executors of his estate. In his will, he left his estate
    to Wendi and to Wayne, Brian already having received significant assets during
    his fathers lifetime. His will contained a clause that said that Wendi owned
    some assets jointly with her father with a right of survivorship. Shortly
    before his death, by way of an irrevocable direction, more than $400,000 in
    securities owned by Harold Laski were transferred into a BMO Nesbitt Burns Inc.
    (BMO) joint account, in the names of Harold Laski and Wendi Laski. This had the
    effect of giving Wendi Laski the right of survivorship to the securities and
    removing them from Harold Laskis estate where they would have also benefited
    the appellant.

[2]

The appellant, a lawyer, was of the view that the
    transfer was fraudulent, that Wendi Laski exercised undue influence over Harold
    Laski, and that BMO was complicit in Wendis misconduct. Litigation ensued,
    with multiple proceedings commenced by the parties. The appellant commenced an
    application (the Estate Application) for various determinations under
    Harolds will, including whether joint accounts in the name of Wendi Laski and
    Harold formed part of Harolds estate, or whether they passed by right of
    survivorship to Wendi. Wendi Laski sued the appellant (the Wendi Action),
    among other things, for partition and sale of a condominium jointly owned by
    Harold, Wayne and Wendi. These proceedings were consolidated (the Consolidated
    Proceedings).  Both in his personal capacity and as a co-executor of Harold
    Laskis estate, the appellant also sued BMO, along with various BMO directors
    and a former BMO investment advisor, Norman Yu, claiming that the defendants either
    engaged in negligent misrepresentation relating to the transfer or breached a
    duty of disclosure (the BMO Action) owed to him. He later discontinued the
    claim against the directors, leaving the action to proceed against the
    respondents to this appeal, BMO and Mr. Yu.

[3]

On January 28, 2016, Conway J. granted summary
    judgment against the appellant in the Consolidated Proceedings, ordering that
    the securities did not form part of Harold Laskis estate and that they passed
    to Wendi Laski by right of survivorship. The appellant, who served a late
    Notice of Appeal, was denied an extension of time to appeal to this court.

[4]

On April 23, 2019, Nishikawa J. (the motion
    judge) granted the respondents motion to strike the BMO Action. The claim the
    appellant purported to bring on behalf of Harold Laskis estate was struck for
    non-compliance with r. 9.01(3) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, because the appellant had failed to join the non-consenting co-executors
    as defendants to the action.  The appellant has not pointed to any error in the
    motion judges application of r. 9.01.(3) to dismiss the action brought on
    behalf of Harolds estate. Accordingly, we see no basis to interfere with this
    ruling.

[5]

The motion judge also struck the appellants
    personal claim against the respondents under the issue estoppel branch of the
    doctrine of
res judicata
as having been previously determined by
    Conway J. in the Consolidated Proceedings. In the alternative, she held that the
    appellants action should be stayed as a collateral attack  and an abuse of
    process, and in the further alternative, that it should be stayed because the
    appellants claim disclosed no reasonable cause of action as the respondents did
    not owe him a duty of care, and he sustained no damages.

THE ISSUES

[6]

The appellant appeals the motion judges
    decision to strike his personal action against the respondents. He raises the
    following issues:

A.

Did the motion judge err in not adjourning the respondents motion
    and proceeding in the appellants absence?

B.

Did the motion judge err in granting the respondents motion on the
    merits?

[7]

We would not give effect to the appellants
    arguments on either ground of appeal.

ANALYSIS

A.

The Adjournment Ruling

[8]

On April 12, 2018, Chiappetta J. established a timetable for the
    respondents motion to strike. Dates in July were set for filing materials.
    There was to be no
viva voce
evidence and the
    motion was set for September 19, 2018.

[9]

On September 18, 2018, D. Wilson J. adjourned the motion at the
    appellants request and with no objection from the respondents. The appellant
    filed a medical note that failed to say why he could not proceed nor when he
    would be able to argue the motion. Wilson J. fixed February 11, 2019 for the hearing
    of the motion, peremptory to the appellant, and ordered that he was to file his
    materials by November 2, 2018.

[10]

On January 28, 2019, Nishikawa J. adjourned the February 11, 2019
    motion to April 23, 2019. The appellant was to serve his materials by March 22,
    2019. The appellant had provided a medical note saying he was unable to work
    for six months.
In granting that adjournment, Nishikawa J.
    said:

No further adjournments will be allowed unless
    the Plaintiff [now the appellant] provides more specific information regarding
    his medical and health limitations on proceeding with his action from a
    qualified medical doctor.

[11]

No responding materials were filed by the
    appellant by the deadline set by Nishikawa J., or at all. Moreover, although
    the appellant sent an email to opposing counsel stating that he had been
    hospitalized and released on April 18, 2019, he did not comply with the
    direction to provide more specific information regarding his medical and
    health limitations on proceeding with his action from a qualified medical
    doctor.

[12]

The appellant did not appear on April 23, 2019,
    the date fixed for the return of the motion. The motion judge treated the email
    sent to opposing counsel as the appellants request for an adjournment. In
    denying the adjournment, the motion judge noted that, while a recent release
    from hospital would normally warrant an adjournment, the motion had been
    pending for almost a year, the appellant had failed to respond, and that the
    only medical documentation he had provided was a note stating that he could not
    work for six months.

[13]

The determination of whether it is in the
    interests of justice to grant an adjournment is discretionary, and the scope
    of appellate intervention is correspondingly limited:
Khimji v Dhanani

(2004), 69 O.R. (3d) 790, at para. 14 (C.A.);
Turbo Logistics Canada
    Inc. v. HSBC Bank Canada
, 2016 ONCA 222, at paras. 16-28.
We see no
    error in the motion judges decision to exercise her discretion and proceed
    with the hearing of the motion. This was the third date set for argument of the
    motion. The motion judge was familiar with the history of the matter, and the
    terms of the previous adjournments, each requested by the appellant.
    Furthermore, the appellant knew that there would be no further adjournments in
    the absence of a medical note providing more specific information about his limitations.
    This was not forthcoming.  In these circumstances, the motion judge properly
    proceeded to hear the motion.

[14]

We have considered the additional medical evidence the appellant has
    produced in this appeal. He has not brought a motion for fresh evidence, and
    even on its face this information fails to explain why the responding materials
    were not filed as directed, or why the unsupported, last minute adjournment was
    required. This ground of appeal must be dismissed
.

B.

The Merits

[15]

In the BMO Action, the appellant alleged that the
    respondents negligently mispresented the circumstances surrounding the transfer
    of the securities into the joint account of Wendi and Harold, or alternatively,
    that they breached a duty of disclosure by failing to disclose to him that Harold
    had changed his mind about leaving the contents of the account to Wendi.

[16]

The former claim is premised on the contention
    that Mr. Yu furnished false information after conspiring with Wendi. As the
    motion judge pointed out, Conway J. concluded that there was no conspiracy
    between Wendi and Mr. Yu. This finding fully addresses and disposes of the
    negligent misrepresentation claim.

[17]

The latter claim, that the respondents breached
    their duty of disclosure,  is based on the contention that, if the
    circumstances surrounding the transfer that were disclosed during the Wendi Action
    are true, the respondents should have disclosed that information to the estate
    trustees in a timely manner after Harolds death, and not after the passage of
    many years. Even if the respondents owed the appellant a duty of disclosure, an
    issue we need not decide, this claim cannot succeed. This is because, as the motion
    judge pointed out, the appellant pleaded in his statement of claim that, shortly
    after Harold died, Mr. Yu had advised him that his father had changed his mind
    and had left the money in issue to Wendi.  The motion judge also found that the
    appellant sustained no damages, and the appellant has offered no basis for
    interfering with that determination, which is fatal to this cause of action.

[18]

In conclusion, we would not disturb the motion
    judges decision. In any event, the motion judge offered various bases for
    staying the action including collateral attack and abuse of process, both of
    which are firmly grounded in the evidence. The order striking the appellants
    action was inevitable.

DISPOSITION

[19]

For these reasons, the appeal is dismissed. The
    parties may make costs submissions in writing, not to exceed three written
    pages each, within 30 days.

S.E.
    Pepall J.A.

K.
    van Rensburg J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
MCC
    Mortgage Holdings Inc. v. Mundulai, 2020 ONCA 312

DATE: 20200521

DOCKET: M51539 (
C68332
)

Pardu J.A.
    (Motion Judge)

BETWEEN

MCC Mortgage Holdings Inc.

Plaintiff
(Respondent/Responding Party)

and

Aliamisse Omar Mundulai
and Ying Huang

Defendants
(
Appellant
/
Moving Party
)

Jeffrey Kukla, for the responding party

Aliamisse Omar Mundulai, acting in
    person

Heard: May 12,
    2020, by teleconference

REASONS
    FOR DECISION

[1]

Mr. Mundulai brings this motion on short notice
    on the ground of urgency. Because of this urgency I indicated at the
    teleconference hearing that the motion was dismissed, with reasons to follow. These
    are those reasons.

Background

[2]

Mr. Mundulai, a defendant mortgagor, brings this
    motion to prevent the proposed sale of real property that was scheduled to
    close on the date this motion was heard. The responding party, the plaintiff
    mortgagee, wishes to sell the property to realize the amounts owing on the
    mortgage, long in default. Mr. Mundulai seeks a stay pending appeal of
    enforcement of a writ of possession, a stay which was refused by the Superior
    Court. He proposes to appeal to this court from that decision and also asks to
    extend the time to appeal from a July 23, 2019 decision of the Superior Court
    refusing to set aside default judgment against him.

[3]

The plaintiff mortgagee recovered possession of
    the property the day before this motion was heard, when the writ of possession
    was executed for a second time.

[4]

The mortgage is dated May 31, 2016, given by Mr.
    Mundulai and his then spouse, Ying Huang. The original term was for two years.
    It is a second mortgage.

[5]

Default in payment on the mortgage occurred on
    July 1, 2018 and continues. Property taxes are in arrears in the sum of $29,562.15,
    a further event of default under the mortgage.

[6]

The mortgage matured on June 1, 2019 and has not
    been discharged.

[7]

The mortgagee issued a statement of claim on
    August 22, 2018, seeking judgment for payment of the amounts owing and
    possession. It was served on Mr. Mundulai on October 25, 2018, by an
    alternative to personal service. The mortgagors did not defend the action and
    default judgment issued on February 12, 2019, for the sum of $218,025.47 plus
    interest and for possession of the mortgaged property and costs. A copy of the
    default judgment was delivered to the mortgagors lawyer on February 20, 2019.

[8]

The Superior Court granted leave to the
    mortgagee to issue a writ of possession on April 12, 2019, and the writ of
    possession was issued on April 26, 2019.

[9]

Mr. Mundulai brought a motion to set aside the
    default judgment, which was dismissed on July 23, 2019. McCarthy J. found that
    there was no explanation for the delay in bringing the motion to set aside the
    default judgment, and that the mortgagors had been well aware of the substance
    of the claim and would have had time to formulate a defence. He found that the
    mortgagors had no arguable case on the merits. He found that service of the
    statement of claim was made properly under the rules and came to the attention
    of the defendants. He noted that the defendants had no evidence that the
    amounts set out in the discharge statement were inaccurate or not amenable to
    calculation as a liquidated sum by the registrar. There was no subsequently
    concluded agreement arriving at a compromise amount. He found that the mortgagee
    would be prejudiced by an order setting aside a properly obtained default
    judgment and doubted that the mortgagors had the ability to pay the amounts
    owing.

[10]

The writ of possession was enforced and the
    mortgagee took possession on January 8, 2020. Mr. Mundulai was asked to remove
    his personal belongings. He did not do so and the belongings were placed in
    storage by the mortgagee. Mr. Mundulai was not then living in the property,
    having separated from the co-defendant, his spouse. She agreed to leave the
    property and has not participated in this motion nor in the earlier motion
    brought by Mr. Mundulai to set aside the writ of possession.

[11]

The mortgagee entered into an agreement of
    purchase and sale of the property with a closing date set for May 12, 2020. The
    proposed purchasers sold their property in anticipation of acquiring this new
    home.

[12]

The mortgagee discovered that the locks had been
    changed by Mr. Mundulai on or about April 4, 2020. From correspondence sent by
    Mr. Mundulai to the mortgagees lawyer, it appears that he asserts a right to
    possession of the property despite the judgment and the writ of possession. He acknowledged
    to the motion judge that he re-occupied the property at some point after March
    29, 2020. He broke the existing locks on the property to effect entry. The
    mortgagee changed the locks again but discovered that Mr. Mundulai changed them
    a second time.

[13]

Competing motions were brought in the Superior
    Court. The plaintiff mortgagee sought a further writ of possession and removal
    of Mr. Mundulai from the property. Mr. Mundulai sought an order staying
    mortgage enforcement proceedings, setting aside the default judgment, and
    discharging the mortgage upon payment into court. By order of April 30, 2020,
    Boswell J. dismissed Mr. Mundulais motion and granted the mortgagees motion.
    Mr. Mundulai proposes to appeal from that order, and also seeks to extend the
    time to appeal from the order of McCarthy J. refusing to set aside the default
    judgment of July 23, 2019. Boswell J. concluded that there was no merit to Mr.
    Mundulais position, that he was stalling to take advantage of the temporary
    suspension of evictions resulting from the COVID crisis, that he unlawfully
    broke into the premises, and that his claim to pay $190,388.90 into court was
    disingenuous. The motion judge doubted that he had the funds available or that
    they would be sufficient to discharge the amount now owing, estimated at
    $240,000 plus the unpaid costs from the refusal of the motion to set aside the
    default judgment.

[14]

For some time, Mr. Mundulai and the mortgagees
    counsel engaged in discussions over the amount owing. Mr. Mundulais issues
    with the amounts claimed related mostly to certain ancillary charges such as
    renewal and administration fees, costs and interest after maturity. There is no
    dispute that the mortgage is in default. At one point in May or June 2019 they
    were close to agreement that $185,777.75 would discharge the mortgage, but the
    discussions fell apart when Mr. Mundulai asserted entitlement to a credit for a
    further $3,988.86 beyond what the mortgagee was prepared to accept by way of
    compromise. The mortgagee has lost faith that Mr. Mundulai can truly raise the
    money to discharge the mortgage or that any further discussions would be
    fruitful.

Arguments on the motion

[15]

Mr. Mundulai argues that the amounts claimed by
    the mortgagee for ancillary matters such as renewal fees, administrative costs
    and interest after maturity are excessive. He says these amount to roughly 10%
    of the principal amount of the mortgage and are significant. He argues that
    Boswell J. erred by failing to consider ss. 12, 22 and 23 of the
Mortgages
    Act
, R.S.O. 1990, c. M.40,
and erred by failing to allow him to pay money into court on account of the
    mortgage. He argues that the mortgagee acted in bad faith and has asserted
    claims for which there is no contractual or legal foundation. He submits that
    the Notice of Power of Sale was invalid. He says there is no evidence the
    mortgagee has obtained market value for the property by the proposed sale. He
    submits that, by virtue of an exit clause in the agreement of purchase and sale
    with the proposed purchaser, the mortgagee would not be prejudiced if the sale
    could not proceed. He submits that to deny a stay would allow an overreaching
    mortgagee to benefit from its conduct and deny him any remedy, rendering his
    appeal moot. He says that the mortgagee would not be prejudiced if this court
    grants a stay of enforcement of the writ of possession because it could simply
    give a new notice that it was exercising its power of sale rights.

[16]

The mortgagee asserts that the amount owing on
    the mortgage has been conclusively settled by the default judgment, and that no
    appeal has been taken for over nine months from the decision refusing to set
    aside the default judgment. Extension of time to appeal from that decision
    should not be granted. The mortgagee argues that the sections of the
Mortgages
    Act
cited by the moving party are of no assistance to him, and that
    Boswell J. exercised his discretion properly in refusing to stay enforcement of
    the writ of possession.

Analysis

[17]

I begin with the request for an extension of
    time to appeal from the decision of McCarthy J. of July 23, 2019 refusing to
    set aside the default judgment.

[18]

The relevant factors are:

1.

Whether the appellant had an intention to appeal
    within the relevant period

2.

The length of the delay and the explanation for
    the delay

3.

Any prejudice to the respondent

4.

The merits of the appeal

5.

Whether the justice of the case requires
    granting an extension

The governing principle is whether the
    justice of the case requires that an extension be granted: see
Chandra v. Canadian
    Broadcasting Corporation
, 2016 ONCA 448, 349 O.A.C. 93, at paras. 13-14.

[19]

Here there is no evidence the appellant intended
    to appeal within the relevant period. The delay, close to ten months, is
    substantial and there is no explanation for it. Mr. Mundulai is a former
    practicing lawyer and would have been aware of the importance of acting
    promptly. The prejudice to the mortgagee is substantial. It has taken steps to
    sell the property to realize the money owed to it. No payments have been made since
    September 2018. The municipal taxes are in substantial arrears and there is no
    indication as to how these would be paid. It is not possible to conclude that
    there is merit to the appeal. It is possible that if he had acted with dispatch
    and with a proper evidentiary foundation the appellant might have reduced the
    mortgagees claims by some amount, but there is no dispute that the principal
    is outstanding. The appellant has not resided in the home since January 2019,
    until he broke into the premises around March and April of 2020, in the face of
    a judgment for possession in favour of the mortgagee. His former spouse takes
    no part in these proceedings.

[20]

It follows that the motion to extend time to
    appeal from the decision of July 23, 2019, is dismissed. That judgment
    therefore conclusively settles the amount owing on the mortgage and the
    mortgagees right to possession of the property.

[21]

I now turn to the request for a stay of the writ
    of possession pending the appeal to this court from the decision of April 30,
    2020.

[22]

The factors to be considered are:

1.

Is there a serious issue to be tried?

2.

Will the appellant suffer irreparable harm if
    the stay is not granted?

3.

Does the balance of convenience favour granting
    a stay?

See
RJR-MacDonald Inc. v. Canada
    (Attorney General)
, [1994] 1 S.C.R. 311.

[23]

Given that the amount owing on the mortgage has
    been conclusively determined by a final decision from which there is no appeal,
    I am not satisfied that there is a serious issue to be tried as to the amount
    owed on the mortgage. Given that the accuracy of the money judgment was
    previously litigated, Boswell J. was correct to decline to embark on a
    re-consideration of the same issue.

[24]

Further, I see no error in Boswell J.s exercise
    of discretion to refuse to stay enforcement of the writ of possession. He did
    not err in considering that the appellants actions in twice breaking into the
    premises in the face of a judgment for possession in favour of the mortgagee
    was a factor weighing against the granting of the stay.

[25]

Given the appellants limited occupation of the
    property since January 2019, I am not satisfied that he will suffer irreparable
    harm if the stay is not granted. His spouse and co-owner agreed to vacate the
    property and appears to have no interest in holding onto it.

[26]

The balance of convenience does not favour
    granting a stay, given the appellants long, unexplained delay. It is unlikely
    he can raise the funds to discharge the mortgage. The mortgage commitment he
    has filed has not been executed by his former spouse and it appears unlikely
    that she will do so. Default has continued for a long time and the mortgagee
    should be permitted to realize the money owed to it.

[27]

For these reasons the motion was dismissed.

[28]

There will be an order for costs of this motion
    in favour of the mortgagee in the sum of $3,300.00 inclusive of taxes and
    disbursements.

Released: May 21, 2020

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Bailey, 2020 ONCA 315

DATE: 20200522

DOCKET: M51537 (
C66676
)

Pardu J.A.
    (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Jeremy
    Bailey

Appellant (Applicant)

Breanna Vandebeek
, for the applicant

Jeremy Streeter
, for the respondent

Heard: May 14,
    2020 by audio and videoconference

REASONS FOR DECISION

[1]

This application for bail pending appeal was heard
remotely
    by video and audio communication
.

[2]

The applicant was convicted by a jury of conspiracy to import heroin,
    possession of heroin for the purpose of trafficking, and conspiracy to possess
    heroin for the purpose of trafficking, and was sentenced to five years
    imprisonment. Before conviction and sentence, he was released on bail. While on
    bail, further charges were laid for trafficking cocaine and other drugs, and
    for possession of proceeds of crime. He was released on bail for those matters
    in 2018, which have yet to proceed to a preliminary inquiry.

[3]

The applicant was granted bail pending appeal to this court by a judge
    of this court on December 9, 2019. The applicants father agreed to act as
    surety and pledged $10,000 to secure his sons compliance with the terms of
    release pending appeal, which required that the applicant live with his surety
    and that he not possess illegal drugs.

[4]

However, on April 23, 2020, the applicant was charged with new offences
    of possessing and trafficking in fentanyl and breaches of the conditions of his
    release. His father withdrew as surety. His outstanding bail pending trial was
    revoked.

[5]

On April 29, 2020, the applicant was granted further bail pending trial after
    these new charges. He proposed a plan with new sureties: his brother and
    sister-in-law. They pledged $68,000, an amount equal to the equity in their
    home, to secure the applicants compliance with conditions of release. The applicant
    would be subject to house arrest and electronic ankle monitoring. The Justice
    of the Peace presiding over the bail hearing in the Ontario Court of Justice
    was satisfied that the sureties were reliable and that the GPS monitoring would
    ensure detection if the applicant left their home, though he was mindful of
    the Ontario Court of Appeals decision that must be made in the days ahead.

[6]

Now the applicant again seeks release pending appeal for the matters
    before this court.

The offences under appeal

[7]

The offences under appeal are serious. Police executed a controlled
    delivery of a package that was mailed from Malaysia to the address occupied by
    the applicant and his girlfriend but was addressed to a third party. The
    package contained a table that concealed 347.2 grams of heroin mixed with
    caffeine, which the police replaced with a control sample of heroin. The
    girlfriend accepted the package, saying the third party was her cousin who was
    residing there. When police entered the apartment, the table appeared to have
    been dismantled and the sample removed. The drugs were worth between $42,000
    and $104,100 depending on whether it was sold by the ounce or in individual
    doses.

[8]

The applicant left the apartment about 15 minutes after the controlled
    delivery. When police approached him, he fled. The applicant was convicted by a
    jury.

The new offences

[9]

The new offences are also drug related. Police observed the applicant
    attend at an Oakville address believed to be associated with drug trafficking
    on five occasions and engage in activity consistent with trafficking drugs.
    Police observed the applicant coming and going from an address in Etobicoke
    throughout the period of surveillance, even though he was obliged to reside at
    his fathers address elsewhere under the terms of his release in this court.
    When police searched the applicant, they found 3.7 grams of fentanyl concealed
    within a body cavity, plus 4 cell phones and $2,610 in cash in his possession. The
    applicants girlfriend was apparently living at the Etobicoke address he
    frequented, even though under his conditions of release he was to have no
    contact with her except in the presence of counsel. A search of the Etobicoke
    address revealed 677 grams of another substance believed to be a drug.

[10]

These
    very recent allegations of drug trafficking and breaches of recognizance are troubling
    in light of this courts recently granted bail, the underlying drug convictions,
    and the outstanding 2018 drug charges that were laid while the applicant was on
    bail.

Positions of the parties

[11]

The
    applicant submits that concerns about public safety can be mitigated by the
    strictures of the proposed plan, the high quality of the sureties and the
    significant amounts they are prepared to pledge, and the information provided
    by electronic ankle monitoring.

[12]

The
    Crowns position is that the grounds of appeal are weak but not frivolous and
    that the applicant will likely surrender into custody when required. However,
    the Crown takes the position that public safety and confidence in the
    administration of justice compel the continued detention of the applicant,
    citing s. 679(3)(c) of the
Criminal Code
, R.S.C., 1985, c. C-46.

[13]

The
    Crown expresses concerns that the sureties may not be able to provide
    continuous surveillance when they are obliged to leave their home to go to
    work, and that the applicant may still find ways to engage in drug trafficking
    from within his brothers home. The applicant bears the onus of establishing
    that his detention is not necessary in the public interest. On this
    application, he does not benefit from the presumption of innocence for the
    charges which are appealed to this court. He has been convicted on those
    matters. This is different from the bail hearing before the Justice of the
    Peace on the newest charges, where the applicant still benefited from the
    presumption of innocence.

Seriousness
    of the offence

[14]

These
    offences are serious. Drug trafficking of the kind at issue here has
    devastating effects in the community.

Strength of the grounds of
    appeal

[15]

I
    turn to a consideration of the strength of the grounds of appeal.

[16]

The
    applicant submits that the verdict of the jury was unreasonable. There was no
    documentary evidence in the apartment linking him to Malaysia, the source
    country for the drugs. The applicants fingerprints were not found on the
    packaging or the table in which the drugs were concealed.  His flight from
    police may have been for reasons unconnected to the drugs.

[17]

A
    police witness gave evidence that he had not heard of a circumstance in which
    a controlled delivery of drugs had been intercepted by someone before it
    reached the destination address, but anything is possible. The applicant
    submits that this amounts to inadmissible anecdotal expert evidence, a
Sekhon
error: see
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272.

[18]

The
    applicant further argues that the trial judge erred in telling the jury that
    they could consider his impecuniosity on the issue of whether he had a motive
    to traffic drugs.

[19]

The
    Crown responds that the jury had an ample basis to return with a guilty
    verdict. The applicant was inside his apartment when the package was delivered
    to his address. While the applicant was within the apartment, the table was dismantled
    to reveal where heroin was hidden, and the applicant left the apartment within
    15 minutes of its delivery. His flight from police, the Crown says, pointed
    convincingly to his guilt. It cannot be said that a jury could not reasonably
    convict him. The statement by the police officer regarding interception of a
    controlled delivery before reaching the destination address was tangential: in
    this case there was no such interception of the package as it was accepted and
    opened at the destination address. The Crown submits that the jury charge was
    fair and balanced in its treatment of the presence or absence of a motive to
    deal drugs.

[20]

I
    keep in mind the comments from paragraph 45 of
R. v. Oland
, 2017 SCC
    17, [2017] 1 S.C.R. 250:

In the end,
    appellate judges can be counted on to form their own preliminary assessment
    of the strength of an appeal based upon their knowledge and experience. This
    assessment, it should be emphasized, is not a matter of guesswork. It will
    generally be based on material that counsel have provided, including aspects of
    the record that are pertinent to the grounds of appeal raised, along with
    relevant authorities. In undertaking this exercise, appellate judges will of
    course remain mindful that our justice system is not infallible and that a
    meaningful review process is essential to maintain public confidence in the
    administration of justice. Thus, there is a broader public interest in
    reviewability that transcends an individuals interest in any given case.

[21]

I
    have before me the draft jury instructions, submitted by the applicant. Keeping
    in mind the limits of assessment of the strength of the grounds of appeal at
    this stage of the proceedings, I would simply say that the grounds of appeal
    are not strong, although they are arguable.

Final balancing

[22]

How
    then to weigh these factors to determine whether the applicant should once
    again be released pending appeal? As noted in
Oland
, at para. 47:

Appellate judges
    are undoubtedly required to draw on their legal expertise and experience in
    evaluating the factors that inform public confidence, including the strength of
    the grounds of appeal, the seriousness of the offence, public safety and flight
    risks. However, when conducting the final balancing of these factors, appellate
    judges should keep in mind that public confidence is to be measured through the
    eyes of a reasonable member of the public. This person is someone who is
    thoughtful, dispassionate, informed of the circumstances of the case and
    respectful of societys fundamental values:
R. v. St-Cloud
, 2015 SCC 27,
    [2015] 2 S.C.R. 328, at paras. 74-80. In that sense, public confidence in the
    administration of justice must be distinguished from uninformed public opinion
    about the case, which has no role to play in the decision to grant bail or not.

[23]

There
    is no suggestion of a flight risk. There is no reason to believe the hearing of
    the appeal will be delayed.

[24]

I
    would not conclude there is a substantial likelihood the applicant will commit
    further offences if released, given the strictures of the proposed terms. The
    quality of his sureties and the use of a GPS monitoring device substantially
    reduce the likelihood of further offences. But at the same time, given the
    determination and ingenuity demonstrated by the applicant in dealing in drugs,
    there is a lingering public safety concern. GPS monitoring has been described
    as a risk management tool, rather than crime prevention tool: see
R. v.
    Jesso
, 2020 ONCA 280, at paras. 24-27. His fathers recent pledge of
    $10,000 as surety did not prevent drug trafficking charges only months later. Even
    accepting the honesty of the new sureties and the amount they are willing to pledge,
    there are lingering concerns about the effect this will have on his behaviour.

[25]

I
    conclude that public confidence in the administration of justice would be
    undermined by release of the applicant on bail pending appeal in these
    circumstances. The convictions are serious, and there are lingering public
    safety concerns. The applicant was released on bail pending appeal on December
    9, 2019. Within months he was charged with possessing and trafficking fentanyl
    and breaching conditions of release, and further he appeared to be staying with
    his co-accused girlfriend in Etobicoke even though the conditions of his
    release required him to reside with his surety in Milton and avoid contact with
    her except in the presence of counsel. Such flagrant and almost immediate
    violations of the conditions of release, if proven, would cause a thoughtful,
    dispassionate, informed person respectful of societys values to seriously
    question whether the applicant should again be released on bail pending appeal,
    in light of the other factors including the strength of the appeal, the risk of
    re-offence, the protection that would be afforded by the surveillance of the
    sureties, and the time until the appeal can be heard.

[26]

On
    balance, the need for enforcement of the verdict outweighs the interests of
    reviewability.

[27]

I
    recognize that in
Oland
, the court said that the public confidence
    component will rarely play a role, much less a central role, in the decision to
    grant or deny bail pending appeal. However, the alleged breaches of the
    conditions of release go to the heart of the need to protect public safety.
    These are not minor breaches of curfew, or consumption of alcohol by an
    alcoholic, or failures to appear in court or report as required, the latter of
    which are akin to administrative offences. Denial of bail pending appeal in
    these circumstances is not to punish the applicant for alleged violations of
    conditions of release, but relates to public safety and public confidence in
    the administration of justice. The public safety component and public
    confidence component are not treated as silos in the analysis; residual public
    safety concerns remain relevant and should be considered in the public
    confidence analysis: see
Oland
, at para. 27.

[28]

Accordingly,
    for these reasons, the application for release pending hearing of the appeal is
    dismissed.

Released: May 22, 2020

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Becker Bros. Trucking Inc.,
    2020 ONCA 316

DATE: 20200522

DOCKET: M51388

Paciocco J.A. (Case Management
    Judge)

BETWEEN

Her Majesty the Queen (as
    represented by the Ministry of Transportation)

Moving Party

and

Becker Bros. Trucking Inc.

Responding Party

Patrick Moore, for the moving party

James Manson, for the responding party

Heard: May 21, 2020 by
    teleconference

REASONS FOR DECISION

[1]

Becker Bros. Trucking Inc. (Becker Bros.) was
    convicted of an offence contrary to s. 84(1) of the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8, after a trial before a Justice of the Peace. That
    conviction was set aside on appeal by a Justice of the Ontario Court of
    Justice. Pursuant to s. 131 of
Provincial Offences Act
, R.S.O. 1990.
    c. P.33 (the
POA
), Her Majesty the Queen (the Crown) now seeks leave
    to appeal that decision to this court. Becker Bros. takes the position that
    this motion for leave to appeal must be made in writing, and not orally as the
    Crown contends. It therefore sought a case management hearing to determine the
    proper procedural mechanism to be followed on motions for leave to appeal under
    s. 131 of the
POA
. I have conducted the case management hearing and I am
    directing that the hearing be conducted orally.

[2]

The Rules of the Court of Appeal in Appeals
    Under the Provincial Offences Act
, O. Reg. 721/94
    (the
POA Rules
), specifically rr. 3 and 4, apply to motions for
    leave to appeal under s. 131 of the
POA
. Rule 3 governs the Crowns
    motion for leave in this case since the Crown is represented by counsel. It
    provides that such motions for leave to appeal are to be brought in Form 1.
    Motions for leave to appeal brought in inmate appeals or where the moving party
    is not represented by counsel are to be brought under r. 4, in Form 2.

[3]

The
POA Rules

do not provide a
    complete code. Rule 2(1) of the
POA Rules

provides:

2(1) Except where otherwise
    provided by the Act, another statute or these rules, the Rules of Civil
    Procedure apply, where appropriate and with necessary modifications, to appeals
    under sections 131 and 139 of the Act.

[4]

Rule 61.03.1 is the rule from the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, that applies to motions for leave
    to appeal to the Court of Appeal. It directs that, unless the court orders an
    oral hearing, motions for leave to appeal to the Court of Appeal are to be
    heard in writing, without the attendance of the parties or lawyers: r.
    63.03.1(1). If the
POA
or the
POA Rules
do not otherwise
    provide, r. 63.01.1 of the
Rules of Civil Procedure
would govern the
    mode of the hearing for leave to appeal brought under s. 131 of the
POA
,
    and the hearing would presumptively be in writing.

[5]

It is not contested that the
POA Rules
otherwise provide for the mode of hearing where the leave to appeal motion is
    brought in an inmate appeal, or by an unrepresented moving party, since Form 2,
    applicable in such leave motions, invites the moving party to request that
    their leave motion be heard in person, or in writing. However, as indicated, in
    this case the Crown is represented, so r. 3 of the
POA Rules
and Form
    1 apply. Becker Bros. argues that neither r. 3 nor Form 1 address whether the
    hearing is to be oral or in writing. Therefore, r. 63.03.1 of the
Rules of
    Civil
Procedure
fills the gap, requiring this leave to appeal
    motion to presumptively be in writing.

[6]

Becker Bros. submits that this outcome is
    reinforced by r. 2(2) of the
POA Rules
, which specifies that r. 61.03
    of the
Rules of Civil Procedure
, dealing with motions for leave to the
    Divisional Court, does not apply to appeals under s. 131 of the
POA
.
Since r. 2(2) of the
POA Rules
does not oust r. 61.03.1 of the
Rules
    of Civil Procedure
applicable to motions for leave to appeal to the Court
    of Appeal, by implication r. 61.03.1 is meant to fill the gaps in r. 3 of the
POA
    Rules
.

[7]

Becker Bros. urges that the application of r.
    61.03.1 is further supported by the fact that neither r. 3 of the
POA Rules

nor Form 1 provide for the exchange of
facta
,
a gap that is
    filled by r. 61.03.1, further confirming its application.

[8]

Notwithstanding the able arguments made, I am
    persuaded that motions for leave to appeal brought under s. 131 of the
POA

are presumed to be heard orally. As Becker Bros. concedes, this is the
    settled practice in the Court of Appeal: see, e.g.,
York (Regional
    Municipality) v. Irwin
, 2020 ONCA 44, 97 M.P.L.R. (5th) 189;
Ontario
    (Environment, Conservation and Parks)
v.
Thomas Cavanagh
    Construction Limited
, 2019 ONCA 686, 28 C.E.L.R. (4th) 48;
Antorisa
    Investments Ltd. v. Vaughan (City)
, 2012 ONCA 586, 1 M.P.L.R. (5th) 240.
    Although the
POA

Rules
could have been clearer, I am
    persuaded that

r. 3 supports this practice by providing for an oral
    hearing.

[9]

Specifically, r. 3.7 directs, A motion for
    leave to appeal shall be heard by a judge. I recognize that the phrase heard
    by a judge could embrace a written hearing, but the use of the term heard
    strongly suggests an oral hearing. If the intention was to require leave
    motions to be in writing instead of orally, other language would have been
    used. For example, r. 4(1) of the
POA Rules
, which invites written
    motions, provides that the moving party may present the case for leave to
    appeal and argument in writing.

[10]

Form 1 supports this conclusion. The Form 1
    notice of motion notes that a motion will be made before the presiding judge
    at Osgoode Hall, 130 Queen Street West, Toronto, Ontario, on (day), (date) at
    (time) or as soon thereafter the time as the motion can be heard. The phrase
    made before connotes or suggests an appearance. So, too, does the fact that
    the moving party must specify a time, date and location for the hearing. It is
    noteworthy that r. 61.03.1 of the
Rules of Civil Procedure
, pursuant
    to which leave motions are presumed to be in writing, does not require the
    moving party to specify a time or date for the leave motion.

[11]

It would be curious if r. 4 of the
POA Rules
were to specify a mode of hearing but r. 3 of the
POA Rules
did not.
    Why would the mode of hearing be addressed for leave motions in inmate appeals
    and by those who are not represented, but not addressed for leave motions by
    represented moving parties? Reading r. 3 consistent with the usual meaning of
    the terms used resolves this curiosity.

[12]

It is not surprising that r. 4 of the
POA
    Rules
and Form 2 are more explicit and clearer about the mode of hearing.
    Rule 4 of the
POA Rules

and Form 2 are to be used by those who
    are unrepresented and require more precise direction. As the practice in this
    court demonstrates, for lawyers, familiar with the strong legal tradition of
    oral hearings, the language used in r. 3 and Form 1 can readily be understood
    to provide for oral hearings, removing the need to fall back on the
Rules
    of Civil Procedure
.

[13]

I do agree with Becker Bros. that there is a gap
    in r. 3 relating to the exchange of
facta
. In this context, r. 61.03.1
    of the
Rules of Civil Procedure
does assist, and its provision for the
    exchange of
facta

applies.

[14]

I am therefore directing that this motion for
    leave pursuant to s. 131 of the
POA

shall be heard orally. I do
    not foreclose the possibility that the court may, in an appropriate case, hear
    a motion for leave to appeal where the moving party is represented by counsel
    in writing. In this case, however, I am not persuaded to depart from the
    courts usual practice of hearing such motions orally. The parties have agreed
    on a timetable, including the exchange of
facta
. The motion for leave
    is returnable on June 18, 2020. Costs in this appearance are reserved until the
    motion for leave is determined.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davis, 2020 ONCA 326

DATE: 20200528

DOCKET: C64420

Strathy
    C.J.O., Tulloch and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Garth Davis

Appellant

Howard Rubel, for the appellant

Vanita Goela, for the respondent

Heard: In Writing

On appeal
    from the conviction entered on November 2, 2016 by Justice Michael Harpur of
    the Ontario Court of Justice.

REASONS
    FOR DECISION

A.

INTRODUCTION

[1]

The appellant is a permanent resident and has lived
    in Canada for over 21 years. A deportation order was issued against him on
    May 29, 2007, due to prior criminal convictions. However, the Immigration
    Appeal Division of the Immigration and Refugee Board (IAD) granted a stay of
    the order based on humanitarian and compassionate grounds. The IAD warned the
    appellant that further convictions for specific types of criminal offences
    would lift the stay and subject him to removal from Canada.

[2]

In April of 2014, the appellant was charged with
    33 offences that included drug offences and the unauthorized use of credit card
    data. The appellant retained counsel and he elected to contest the charges. He
    elected a trial in Superior Court by judge and jury and requested a preliminary
    hearing.

[3]

On November 2, 2016, the seventh day of his
    preliminary hearing, the Crown and the appellants trial counsel concluded plea
    negotiations. They agreed to propose a joint submission as to sentence if the
    appellant pleaded guilty to three offences. It is not disputed that the joint submission,
    a non-custodial sentence of probation with no reporting conditions, was
    lenient. The appellant decided to re-elect to be tried in the Ontario Court of
    Justice and pleaded guilty.

[4]

Prior to entering the plea, the trial judge
    conducted a plea inquiry, as required by s. 606(1.1) of the
Criminal Code
,
    R.S.C., 1985, c. C-46. During the inquiry, the appellant advised the trial
    judge that: (1) he was voluntarily entering pleas of guilty; (2) by pleading
    guilty, he was aware that he was giving up his right to a trial; and (3) he was
    aware that the trial judge was not bound by any joint submission as to sentence
    advanced by counsel. The trial judge then arraigned the appellant and he
    pleaded guilty to two drug offences (contrary to ss. 4 and 5 of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19) and one count of unauthorized
    use of credit card data (contrary to s. 342(3) of the
Criminal Code
).

[5]

On December 7, 2016, the appellant was sentenced
    to a period of probation for one year with conditions.

[6]

The appellant now seeks to introduce fresh
    evidence to support his claims that his guilty plea was uninformed and that he
    received ineffective assistance from his counsel, amounting to a miscarriage of
    justice. The fresh evidence consists of the appellants affidavit and
    accompanying cross-examination, affidavits from defence and Crown trial
    counsel, and a letter of opinion from the appellants immigration counsel.

[7]

According to the appellant, prior to entering
    his pleas of guilty, trial counsel told him that the resulting convictions and
    the proposed sentence would not lead to any immigration consequences. This
    advice played a significant role in his decision to plead guilty. However, on
    August 30, 2017, he was summoned to a hearing before the IAD. During that
    hearing, he discovered that the stay of deportation had been lifted because of
    the convictions, and he was now subject to removal from Canada.

[8]

The respondent does not oppose the introduction
    of the fresh evidence. However, the respondent contends that the appeal should
    be dismissed because the pleas of guilty were voluntary, informed, and
    unequivocal, and the appellant was fully aware that conviction of specific
    offences would affect his immigration status.

[9]

We would admit the fresh evidence because it is
    in the interests of justice to do so:
Criminal Code
, s. 683(1);
R. v.
    Sangs
, 2017 ONCA 683, at para. 7. After reviewing the fresh evidence, we
    are persuaded that the appellant was provided with erroneous information about
    the immigration consequences that would occur if he pleaded guilty. As a result
    of the convictions, the appellant has suffered prejudice. Therefore, we are allowing
    the appeal, setting aside the guilty pleas, and ordering a new trial on all
    counts of the information.

B.

ANALYSIS

[10]

A guilty plea must be voluntary, unequivocal,
    and informed:
R. v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519.
    A plea is an informed one if the accused is aware of the effects and
    consequences of the plea. In this case, there are collateral consequences that
    bear upon serious legal interests of the accused, such as deportation:
R. v.
    Wong
, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 4;
R. v. Girn
, 2019
    ONCA 202, 373 C.C.C. (3d) 139, at para. 52.

[11]

To set aside his plea, the appellant must
    establish that: (i) he was unaware of a legally relevant consequence of the
    plea at the time of pleading guilty; and (ii) he suffered subjective
    prejudice:
Girn
, at paras. 65-66, citing
Wong
, at paras. 6,
    9, and 19.

[12]

In his affidavit and cross-examination, the
    appellant does not deny that he was aware that certain types of convictions
    would put his immigration status in jeopardy when he was charged. According to
    the appellant, he informed trial counsel that he was highly concerned about
    potential immigration consequences at the beginning of the retainer and
    throughout the proceedings. However, trial counsel assured him there was
    nothing to worry about because they could beat the charges. The appellant
    further asserts that, before he decided to plead guilty on November 2, 2016,
    trial counsel erroneously advised him that pleading guilty would not affect his
    immigration status. We accept this assertion.

[13]

Trial counsel, in his affidavit, acknowledges
    that the appellant raised his immigration status with him at the outset of the
    retainer, and that the appellant was concerned about the effect the charges
    could have on that status.

[14]

According to trial counsel, on November 2, 2016,
    the trial Crown took it upon herself to research the issue of immigration
    consequences. Trial counsel states that the trial Crown explained to him that
    the proposed sentence would not lead to any immigration consequences for the
    appellant, and since he did not practice immigration law, he accepted this
    representation. Trial counsel states that the appellant proceeded to plead
    guilty based on a misapprehension that there would be no immigration
    consequences.

[15]

The trial Crown denies that she researched any
    immigration issues or discussed immigration consequences with trial counsel.

[16]

We need not resolve this conflict in the
    evidence because, regardless of the source of the erroneous information, the
    evidence of trial counsel is that the appellant was under the misapprehension
    that he would suffer no immigration consequences by pleading guilty.

[17]

We do not accept the respondents argument that
    the appellant has provided inconsistent evidence about whether trial counsel
    advised him about immigration consequences. In his affidavit, the appellant
    stated that trial counsel advised him that pleading guilty would not impact his
    immigration status. The appellant was thoroughly cross-examined by the
    respondent on this point. A fair reading of his cross-examination discloses
    that he only decided to plead guilty after trial counsel advised him, on
    November 2, 2016, that there would be no immigration consequences.

[18]

The consequences of the appellants pleas of
    guilty are extremely serious. The appellant has received an opinion from his
    immigration lawyer that, as a result of the credit card data conviction, his
    stay of deportation will be cancelled by operation of law, his appeal will be
    terminated, and he will be removed from Canada.

[19]

In summary, on the basis of the fresh evidence,
    we are satisfied that trial counsel told the appellant that there would be no
    immigration consequences if he pleaded guilty. The appellant relied on this
    advice in coming to the decision to plead guilty. The advice was wrong. In
    fact, the opposite is true. We are satisfied that the appellant was not aware
    of the collateral consequences when he entered his pleas of guilty and the
    pleas were not informed.

[20]

We also accept that the appellant has
    demonstrated subjective prejudice. The appellant contends that, had he known
    the information he was being given was erroneous, he would have continued with
    his preliminary hearing and proceeded to trial. We must assess the veracity of
    his statement with objective contemporaneous evidence. In our view, the
    appellants claim is credible.

[21]

First, we note that the appellant has been
    living in Canada for at least 21 years and has three children. During the
    sentencing hearing, the trial judge was told that one of the children was
    living with him. It is clear that he has an interest in remaining in Canada. It
    is highly unlikely that he would have pleaded guilty knowing he would be
    deported.

[22]

Second, his pleas of guilty occurred in the
    middle of a preliminary hearing, a proceeding designed to test the strength of
    the Crowns case. A Crown witness was scheduled to provide evidence on the day
    he pleaded guilty. Although we have no evidence as to the strength of the
    Crowns case against the appellant, the timing of the plea suggests that, had
    he known that he would be removed from Canada by pleading guilty, he likely
    would not have done so. Instead, he likely would have continued with the
    preliminary hearing, and he may have taken the matter to trial in the Superior
    Court, if the preliminary hearing judge had committed him for trial.

[23]

On the basis of the fresh evidence, we are
    satisfied that the appellants guilty pleas should be set aside because the
    appellant was uninformed.

[24]

In light of our conclusion, it is not necessary
    to deal with the appellants second argument that his trial counsel provided
    ineffective assistance, resulting in a miscarriage of justice. However, we do
    have serious reservations about trial counsels conduct, given his position
    that he relied on the Crowns research about the appellants immigration
    consequences in assisting his client with the pleas of guilty. Neither the
    trial counsel or the trial Crown were cross-examined on their affidavits filed
    as fresh evidence on this appeal, and we do not have a sufficient record to
    make definitive findings on this issue. That said, assuming trial counsels
    affidavit is accurate, we are troubled by his position. It is trial counsel who
    had a duty to the appellant, and it was his responsibility to ensure the
    accuracy of any advice he gave to his client about immigration consequences.

[25]

In
Wong
, the Supreme Court of Canada
    recognized that it is a well-established matter of practice that defence
    counsel should inquire into a clients immigration status and advise the client
    of the immigration consequences of a guilty plea: at para. 73. Similarly, in
R.
    v. Shiwprashad
, 2015 ONCA 577, 328 C.C.C. (3d) 191, at para. 64, leave to
    appeal refused, [2017] S.C.C.A. No. 40, this court reviewed literature that
    suggests that if there are potential immigration issues, counsel should conduct
    their own research or discuss the immigration consequences of matters with a
    member of the immigration bar. Trial counsels own affidavit reveals that this
    was not done.

[26]

Finally, during the plea inquiry, the trial
    judge did not ask the appellant if he was aware of any collateral consequences
    that could occur if he pleaded guilty, such as immigration. In fairness to the
    trial judge, he did not have the benefit of the Supreme Court of Canadas
    decision in
Wong
or this courts decision in
Girn
. However, it is
    now beyond dispute that awareness of collateral immigration consequences forms
    part of an informed guilty plea:
Wong
, at para. 4;
Girn
, at para.
    51. Although there is no standard format for conducting a plea inquiry, in our
    view, it is good practice for trial judges to canvass with the accused during a
    plea inquiry if there are any potential immigration issues. By doing that,
    trial judges can direct the accused and counsel to turn their minds to the issue,
    and it will likely assist the judge in determining whether the plea of guilty
    is informed.

C.

DISPOSITION

[27]

For these reasons, we admit the fresh evidence,
    set aside the appellants pleas of guilty and consequent convictions, and order
    a new trial on all counts.

G.R.
    Strathy C.J.O.

M.
    Tulloch J.A.

S.
    Coroza J.A.